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HomeMy WebLinkAbout96-04639~. ~t .~ '~ ~ ~ ~ ~ ~ v .~.~. ~ ~ ~ ~ 0 ti i u G. a l~ ., .~ ~. :' ~f\ ~ .<\ ~j a b. ri ~ ~:~ r ~~~ ~ x }r ~ ~}' r , ~{? a, ~,~ ~•5. GANNETT FLEMING, INC., Plaintiff v. MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW N0. 96-4639 CIVIL TERM BEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this s?j~-day of February, 1998, after careful consideration of Plaintiff's preliminary objections to Defendant's amended preliminary objections (to Plaintiff's complaint), and for the reasons stated in the accompanying opinion, Plaintiff's preliminary objections are SUSTAINED, Defendant's amended preliminary objections are DIS6IISSED, and Defendant is GRANTED 20 days from the date of this order within which to file an answer to Plaintiff's complaint. Mark S. McKain, Esq. Bradford J. Sandler, Esq. 367 South Gulph Road King of Prussia, PA 19406 Attorneys for Plaintiff Stephen N. Huntington, Esq. Nicole M. Davenport, Esq. Suite 1100 1515 Market Street Philadelphia, PA 19102 Attorneys for Defendant rc n~~~ - /~~ i BY THE COURT, GANNETT FLEMING, INC., Plaintiff v. MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH, Defendant . IN THE COURT OF COMMON PLEAS OF . CUMBERLAND COUNTY, PENNSYLVANIA . CIVIL ACTION - LAW N0. 96-4639 CIVIL TERM BEFORE BPYLEY and OLER, JJ. OPINION and ORDER OF COURT Oler, J., February 13, 1998. J ,; In this civil action for breach of contract and unjust enrichment, a company providing professional engineering services has sued a municipal authority for damages arising out of nonpayment for services allegedly performed by the plaintiff in connection with the defendant's construction of a new water treatment plant. For disposition at this time are preliminary objections filed by the plaintiff to amended preliminary objections filed by the defendant (to the plaintiff's complaint). Plaintiff's preliminary objections include a motion to strike Defendant's amended preliminary objections due to untimeliness. For the reasons stated in this opinion, Plaintiff's preliminary objections will be sustained and Defendant's amended preliminary objections to the complaint will be dismissed. PROCEDURAL HISTORY• STATEMENT OF FACTS Plaintiff Gannett Fleming, Inc., a Cumberland County business according to the complaint, commenced this action on August 19, 1996, by filing a praecipe for writ of summons. Plaintiff's complaint was filed on January 2, 1997. NO. 96-4639 CIVIL TERM Preliminary objecticns were filed to Plaintiff's complaint by Defendant Municipal Authority of the Borcugh of Shenandoah on March 17, 1997, two and a half months after the filing of the complaint. An amended set of preliminary objections, differing only in decreased specificity from the first set, was filed by Defendant on April 22, 1947, more than three and a half months after the filing of the complaint.' Plaintiff filed preliminary objections to both sets of Defendant's preliminary objections. Defendant's amended preliminary objections to Plaintiff's complaint are based upon improper venue' and pendency of a prior action.' Neither set of Defendant's preliminary objections was endorsed with a notice to plead.° Defendant's amended preliminary objection based upon improper venue is predicated upon the propositions (a) that a municipal authority is an "unincorporated association," (b) that as an unincorporated association Defendant can be sued "only in a county ' Defendant's counsel, in Defendant's brief in opposition to Plaintiff's preliminary objections, computes the delay in filing at "less than two months," based upon service of the complaint, and the court will accept this representation for purposes of this opinion. See Memorandum in Response tc Gannett Fleming, Inc.'s Preliminary Objections to Shenandoah's Amended Preliminary Objections and in Support of the Borough of Shenandoah's Amended Preliminary Objections, at 3. s See Pa. R.C.P. 1028(a)(1). ' See Pa. R.C.P. 1028(a)(6). ° See Pa. R.C.P. 1028(c), Committee Note. 2 N0. 96-4639 CIVIL TERM where [it] regularly conducts business or any association activiL-y, or in the county where the cause of action arose or in a county where a transaction or occurrence took place out of which the cause li of action arose," under Pennsylvania Rule of Civil Procedure 2156(a), and (c) that far_tually none of these circumstances applies in the present case. Defendant's amended preliminary objection based upon the pendency of a prior action is predicated upon ~ allegations (a) that a certain action is pending in Schuylkill County wherein "The Quandrel Group" is the plaintiff and Defendant is the defendant, (b) that the Schuylkill County action "relates to the precise Project and circumstances as identified in the [present action]," and (c) that in the Schuylkill County action Defendant, on July 11, 1995, filed a writ to join the instant Plaintiff. Plaintiff's preliminary objections to Defendant's amended preliminary objections attack the amended preliminary objections on grounds of untimeliness. In addition, Plaintiff contends that Defendant's amended preliminary objections are unsustainable on the merits. DISCUSSION Under Pennsylvania Rule of Civil Procedure 1026(a), subject to an exception not here relevant, "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading ...."S A preliminary objection is a pleading e See also C.C.R.P. 208-1. 3 N0. 96-4639 CIVIL TERM for purposes of this rule. Pa. R.C.P. 1027(a); Pa. R.C.P. 1026, Explanatory Note-1979. "This twenty day filing period has been interpreted liberally and is permissive rather than mandatory. The decision of whether an extension of time shall be granted is within the discretion of the trial court." Weaver v. Martin, 440 Pa. Super. 185, 191, 655 A.2d 180, 183 (1995) (citations omitted). "[I]f justice requires," a late preliminary objection may be permitted where no prejudice would result to the opposing party. Zd. at 191-92, 655 A.2d at 183 (emphasis added). In the present case, however, it cannot be said that justice requires special dispensation for Defendant's amended preliminary objections, because neither objection presents a compelling argument for relief. With respect to Defendant's challenge to venue under Pennsylvania Rule of Civil Procedure 2156(a), relating to unincorporated associations, several difficulties are apparent. First, it is not self-evident that a municipal authority is an "unincorporated association.i6 Second, no evidence has been placed in the record which would support a finding that Defendant does not regularly conduct business or any association activity in this county. Third, no evidence has been placed in the record which would support a finding that the cause of action did not arise in s Cf. Firemen's Pension Fund v. Minnaugh, 80 D. & C. 297 (Dauphin Co. 1951). 4 N0. 96-4639 CIVIL TERM this county, or that a transaction or occurrence out of which the cause of action arose did not take place in this county. Fourth, to the contrary, a failure to make a payment due at a plaintiff's place of business in the forum county has been held to constitute an occurrence out of which a plaintiff's cause of action for breach of contract arises, for purposes of venue. See, e.g., PFA rlembers' Service Corp. v. Ansell, 42 Cumberland L.J. 601 (1993); Rothermel v. Trimmer, 33 Cumberland L.J. 511 (1983). With respect to Defendant's preliminary objection based upon the pendency of a prior action, the factual and legal foundations for the objection are similarly unsatisfactory. In terms of a factual analysis of the action in Schuylkill County, the court is constrained by the rule that it "'may not ordinarily take judicial notice in one case of the records of another case, whether in another court or its own ...."' The 220 Partnership v. Philadelphia Elec. Co., 437 Pa. Super. 650, 656, 650 A.2d 1094, 1097 (1994), quoting Naffah v. City Deposit Bank, 339 Pa. 157, 160, 13 A.2d 63, 64 (1940). Nor can the court make an effective finding based upon the allegations of Defendant recited above. In terms of the law applicable to the doctrine of lis pendens, it has been said that, "[i]n order to plead successfully the defense of lis pendens, i.e., the pendency of a prior action, it must be shown that the prior case is the same, the parties are the same, and the relief requested is the same." Penox Technologies, 5 a NO. 96-4639 CIVIL TERM I, Inc. v. Foster Medical Corporation, 376 Pa. Super. 450, 453, 546 A.2d 114, 115 (1988). The court cannot conclude, on the basis of the record which Defendant has presented, that each of these legal criteria has been met. ~ For the foregoing reasons, the following order of court will be entered: ORDER OF COURT AND NOW, this 13th day of February, 1998, after careful consideration of Plaintiff's preliminary objections to Defendant's amended preliminary objections (to Plaintiff's complaint), and for the reasons stated in the accompanying opinion, Plaintiff's preliminary objections are SUSTAINED, Defendant's amencea preliminary objections are DISMISSED, and Defendant is GRANTED 20 days from the date of this order within which to file an answer to Plaintiff's complaint. Mark S. McKain, Esq. Bradford J. Sandler, Esq. 367 South Gulph Road King of Prussia, PA 19406 Attorneys for Plaintiff BY THE COURT, s/ J Wesley Oler Jr. J. Wesley Oler, Jr., J. ~.1 6 N0. 96-4639 CIVIL TERM Stephen N. Huntington, Esq. Nicole M. Davenport, Esq. Suite 1100 1515 Market Street Philadelphia, PA 19102 Attorneys for Defendant :rc YOr, ,t r.. ~ TO P!.E."' , --NL'W iJat to 6 WITHIN T•i SERVICE JUDGMErt*, YOU. „~~~ --- rD Cuun Lc rclnim s nppe `~Il(T ?FD AGAINST 5'I'BI'li [:N [J. IIUN'I'1NG'I'ON ATTORrJF-Y:nk nor~~rl~~~r COHEN & HUN'1'INGTON, P.C. By: Stephen N. Huntington Attorney No. 02540 By: Nikole M. Davenport Attorney No. 75340 1515 Market Street -Suite 1100 Philadelphia, PA 19102 215.564-1700 GANNET"I' FLEMING, INC. V. MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH CCP CUMBERLAND COUNTY NO. 96-4639 ANSWER OF THE MUNICIPAL AUTHORITY TO PLAINTIFF'S COMPLAINT', NEW MATTER & COUNTERCLAIM COUNTI-BREACH OF CONTRACT 1. Dcnicd. After reasonable investigation, answering defendant is without ktunvlcdgc or information sttflicicnt to form a belief as to dtc truth of this averment. 2. Admitted. 3. Admitted that Gannett and the Authority entered into an agreement ("Engineering Agrccmcnt") for services to be provided at the Plant ("Project"), which contract speaks for itself: All other ;rvermenn in this paragraph arc specifically denied. 4. llcnicd. Answering defendant specifically denies that Ganuctt undertook to provide or did s;uisftctorily provide all services required by the Engineering Agrccmcnt for which invoices have been submitted and by way of further response, defend:utt incorporates its Compl;tint against pl;tintitTin the action docketed in Schuylkill County at 5-819-1995 aC[al'hed ati I:xltiblC A. Admitted that Gannett has submitted invoices to the Authority which have nor been paid but it is denied that these invoitts reflect engineering services provided by Gannett which warrant such payment. 6. llcnicd. 1'hc Audtority specifically denies that Gannett has satisfied any, much less all, conditions precedent to Gannett's entitlement to receipt of payment from the Authority. 7. Admitted that the Authority has paid Gannett a total of at least $418,286.46. llcnicd that this represents a credit against dte invoices submitted for which payment is due, as the Authority asserts Gannett is owed no money by the Authority. 8. llcnicd. The Authority specifically denies that $187,037.04 plus interest is outstanding and now due and owing to Gannett by the Authority. 9. llcnicd. This paragraph asserts a conch~sion of law to which no responsive pleading is required. WHEREFORE, Answering Defendant, The Mtmicipal Authority of the Borough of Shenandoah, respcctfitlly requests that the Complaint of Gannett-Fleming, Inc. be dismissed with prejudice. COUNT II - UNTUST ENRICHMENT 10. Answering defendant incorporates paragraphs 1 through 9 of this Answer as though the same were set forth at length herein. 11. llcnicd. After reasonable investigation, answering defendant is without knowledge or intin•nration sutlicicnt to form a belief as to the truth of this averment. 12. Admitted that the Authority has paid Gannett a total of $418,286.46. It is denied that this payntcnt was as a crctiit against the ftir anti reasonable value of the services rendered anti expenses incurrcti by Gannett for the Authority%s benefit in connection with the Project. 13. llcnied. Answering defendant specifically denies that a total of $187,037.04 plus interest remains unpaid attd is due and owing to Gannett. 14. llcnied. This paragraph asserts a conclusion of law to which no responsive pleading is required. WHEREFORE, Answering llefcndant, -I'ttc Mtuticipal Authority of the Borough of Shenandoah, respcctfirlly requests that the Complaint of Gannett-Fleming, Inc. be dismissed with prejudice. NEW MATTER 15. This action should be dismissed on the grotutd of fonun non-convenicns because virtually identical litigation, including the same parties, was instituted in 1995 and is proceeding in Schuylkill County at docket 5-819-1995. 16. Plaintiff's Complaint is barred in whole or in part by plaintiffs unclean hands. 17. Plaintiff's Complaint is barred in whole or in part by die Doctrine of Estoppel. 18. Plaintiffs Complaint is barred in whole or in part by plaintiffs failure to mitigate their damages. 19. Plaintiffs Complaint is barred in whole or in part by the doctrine of lathes. 20. Plaintiffs Complaint is barred in whole or in part by plaintiffs Failure to perform 3 the work rcyuired under die terms of the contract in accordance with the applicable standard of care and in accordance with the contract's specifications. 21. Plaintiffs Complaint is barred in whole or in part by plaintiffs negligent perfi>rm:uuc of any contractual work it attempted. 22. Plaintiffs Complaint is barred in whole or in part by the applicable statute of limitations. 23. The plaintiff breached its express and implied warranties assumed under the contract and is therefore barred from recovery. COUNTERCLAIM 24. Byway of counrerclaim, defendant incorporates its Complaint against the plaintiff in the action docketed at Schuylkill Cotmty at S-819-1995, a copy of which is attached as Exhibit A. COHEN & H ~ INGTON, P.C. By: Stephen N. untington Nikole M. Davenport Attorneys for Defendant Shenandoah 4 - MRR 04 '98 12 46 L M B & T 717 622 4850 VERISICATION ~~~~ F'. ~-'2 I, JOSEPH TANCREDI, the Chairman for the Municipal Authority of the Borough of Shenandoah, verify that the statements made in the foregoing pleading, which are within my personal knowledge, are true and correct and those which are based upon information received from others I believe to be true. Z understand that false statements herein are made subject to the penalties of 1a Pa.C.S.A. §4904, relating to unsworn falsification to authorities. JOSEPH TANCREDI Dated: 3 3 q g VERIFICATION The person whose signature appears below says that the t'acts set forth in the attached document or pleading are true and correct to the best of said person's knowledge, information, and belief; that his or her title or capacity, if other than that of a party to the litigation or matter for which said document or pleading has been prepared on behalf of a corporation or entity other than said person, said person is authorized to take this affidavit on said corporation's or entity's behalf. This statement is made subject to the penalties of 1R Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. LIPRIN, MARSHALL, BOHORAD 6 THORNHURG Hy: Mark eemnnahik, Esquire I.D. No. X0484 Ona Norwegian Plaza, euita 200 Post Offioe BOKIZ$0 Pottsville, Pennsylvania 17901 (717) 622-1811 THE QUANDEL GROUP, INC. v. MUNICIPAL AUTHORITY OF THE . BOROUGH OF BHENANDOAH . v. BOGNET, INC. and - GANNETT FLEMING, INC. - Attorney for Defendant Municipal Authority of the Borough of ehenandaah COURT OF COMMON PLEAS SCHUYRILL CCUNTY NO. 819-1995 MUNICIPAL AUTHORITY OF THE HOROIIGH OF BHENANDOAH'8 COMPLAINT AGAINST ADDITIONAL DEFENDANTS SOGNET INC AND GANNETT FLEMING INC The Municipal Authority of the Borough of Shenandoah ("Authority"), by and through its undersigned counsel, hereby commences an action against defendants Gannett Fleming, Inc. ("GFI") and Bognet, Inc. ("Bognet") and, in support thereof, avers as follows: 1. The Authority, an administrative agency of the Borough of Shenandoah, maintains its principal place of business at 26-28 West Lloyd Street, Shenandoah, Pennsylvania. 2. GFI is a corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania with its principal place of business located at 207 Senate Avenue, Camp Hill, Pennsylvania. 3. Bognet is a corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania with its principle place of business located at Rt. 924, Humboldt, P.O. Box 206, Hazleton, Pennsylvania 18201. EXHIBI?' "q" I. eacxaROOND 4. On March 5, 1986, Giardia lamblia cysts, a contaminant, were found to be present in one of the Authority's principal water sources known as Kehly Run Reservoir No. 3. 5. After two (2) years of utilizing temporary treatment methods to address the contaminants found in Kehly No. 3, on August 4, 1988, the Pennsylvania Department of Environmental Resources ("DER") issued a consent order and agreement requiring the ', Authority to undertake a feasibility study identifying the options available for protection of the Authority's water supplies against Giardia contamination. 6. Pursuant to the DER consent order, the Authority retained GFI to prepare a feasibility study ("Feasibility Study"), which recommended the construction of a permanent water filtration plant for the treatment of certain water sources identified as Ringtown Reservoirs Nos. 5 and 6 and Raven Run Reservoirs Nos. 2 and 3. A true and correct copy of the Feasibility Study is attached hereto and made part hereof as Exhibit "1". 7. On November 16, 1989, the Authority and GFI entered into a con~ract (the "Engineering Contract") under which GFI agreed to provide design engineering services for a water treatment plant and related facilities as proposed by GFI in the Feasibility Study (the "Project"). A true and correct copy of the Engineering Contract is attached hereto and made a part hereof as Exhibit "2". 8. Among other things, the Engineering Contract required GFI to design a water treatment plant having: 2 a. an initial rated capacity of approximately 3.2 million gallons per day (MGD); b. transmission mains paralleling the existing transmission mains from Raven Run Reservoirs to the water treatment plant and from the water treatment plant to the Borough of Shenandoah; and, c. a water storage tank with a capacity of. approximately 1.1 million gallons. 9, The Engineering Contract also required GFI to: a, prepare preliminary water treatment plant and storage tank concepts and layouts; b. make route selections of the transmission mains; c. evaluate alternatives to constructing the proposed transmission mains; d. contract for subsurface explorations to determine the foundation conditions at the site of major structures; e, prepare final designs, construction drawings and specifications; f, perform general inspection and consultation during the construction phase; g, provide assistance during the start-up phase; preparing an operation and maintenance manual; and, h, perform any other engineering services related to the Project which may be ordered by the Authority." 3 10. In June 1991, GFI submitted to the Authority as part of its engineering services a report entitled "Preliminary Design Criteria," which identified the design and operation of the proposed water treatment plant. A true and correct copy of the Preliminary Design Criteria Report is attached hereto and made a part of hereof as Exhibit "3". 11. The Preliminary Design Criteria Report differed in certain material respects from the Project description contained in the Engineering Contract and from the Feasibility Report. 12. For example, the Engineering Contract and the Feasibility Report specified a 1.1 million gallon storage tank and transmission mains from the Raven Run Reservoirs to the water treatment plant, whereas the Preliminary Design Criteria Report provided for only an 840,000 gallon water storage tank and indicated that the Raven Run ' Reservoir No. 2 would be taken out of service. 13. On September 3, 1992, the Authority and GFI entered into ,' a contract for GFI to provide construction phase engineering and management services for the construction of the Project ("Construction Contract"). A true and correct copy of the Construction Contract is attached hereto and made a part hereof as Exhibit "4". 14. The Construction Contract incorporates, by reference, GFI's proposal dated July 27, 1992, which provides, among other things, that GFI will: a. interpret plans and specifications; a b. report to and consult with MARS concerning performance of the contractors on the construction contracts; c. coordinate project communications and requests for information; d. review ship drawings submitted by the Contractors; e. review, negotiate and prepare requests for change orders; f. review Contractor progress and compare to proposed project construction schedules; g. i update construction schedules; ~ j h. review Contractor maintained record drawings to ~ i verify compliance with contract requirements; i. provide advice and rcomendations to MABS in matters relating to administration o~ the construction ~ contract; j. develop the startup procedures for the completed facility; k. make a final inspection of the construction; and 1. prepare a final punch list of project deficiencies needed to be resolved by the Contractors; 15. Pursuant to the terms of the Construction Contract, GFI solicited and received bids for the construction of the Project. 5 16. In December 1992, GFI awarded the general prime contract to The Quandel Group, Inc. ("Quandel"), the plumbing prime contract to Bognet and the electrical prime contract to Silicon Power, Inc. ("Silicon"), collectively (the "Contractors"). 17. On January 11, 1993, the Contractors received their Notice to Proceed with a completion date of October 12, 1994. 18. Due to the errors and omissions by GFI, however, the Authority ultimately expended monies in excess of the original contract sums for the construction of the Project. 19. Following completion of the Project, the Authority found numerous errors in the design of the Project including, but not limited to, the following: a. errors in the design elevation of the water treatment plant resulting in an insufficient water flow pressure from the reservoirs to the treatment plant; b. errors in the pipe design in the Chemical Feed Room; c. insufficient air flow in the Electrical Room; d. insufficient air flow in the Carbon Feed Room; e. the use of an open rinse line in the Filter Pipe Gallery allowing the escape of chlorine fumes which are corroding stainless steel; f. failure to seal fully the clarifiers resulting in water leakage and steel corrosion in the Filter Pipe Gallery; 6 g. h. i. 7• k. 1. m. n. o. P• 4• r. s. insufficiently sized sludge drying beds; erroneously located loading dock; erroneously specified light fixtures in the Filter Control Room which are corroding from escaping chlorine fumes; computer design deficiencies relative to the chlorine scale; insufficient ventilation in the Filter Control Room; errors in the piping design of the turbidimeter, analyzers and hose bib; improperly designed pipes in the sludge drains; omissions in the design of a single holding tank system which fails to account for potential contamination; errors in the design of the emergency release in the Chlorine Feed Room; errors in the design of the pressure engaged exterior lights; omission of toggle switches on the chlorine and filter aid distribution panel; omission of technical data on the serial plates of the rebuilt pumps; and, errors in the design of the automatic dialer with regard to the fire and security systems; 7 20. In addition to the foregoing errors and omissions, all of which have damaged the Authority, GFI also caused the Authority to suffer consequential damages including, but not limited to, the following: a. the cost of engaging design professionals, tradesmen and others to determine the nature and extent of the damages and defects and the best manner in which to cure or mitigate the damages and defects; b. future expenditures to correct, cure, repair or i replace the damages and defects; c. cost of change orders paid during the course of construction to correct errors and omissions in the original design of the Project; d. increased maintenance costs; i ', e. loss of the intended use of the water treatment plant; and, f. diminution of value. 21. Due to design errors and omissions and GFI's failure to properly manage construction of the Project, completion was delayed approximately 210 days. 22. in addition to the design errors and omissions identified above, GFI and Bognet have caused the Authority to be liable to Quandel for the additional costs Quandel incurred at the Project (the "Quandel Litigation"). 8 23. GFI's and Bognet's actions and inactions causing quandel to incur additional costs include, but are not limited to, the following: a. Bognet's defective work in restoring the grade in the Water Treatment Plant which delayed Quandel in pouring the slab on grade for a total of five (5) months; b. GFI's failure to design adequately and timely the instrumentation system in the contract specifications; c. GFI's 105 day delay in scheduling the first instrumentation design meeting; d. GFI's failure to process timely Quandel's request for information regarding the instrumentation; e. GFI's repeated design changes to the instrumentation package throughout the Project; and, f. GFI's directive that Quandel incorporate the scheduling information of the other prime contractors into its schedule. 24. As a result of these actions and/or inactions, Quandel was required to: a. perform its work in an inefficient and costly manner; b. shift its workmen from place to place; 9 c. maintain extended home office and job site supervision; d. perform work in areas in which work crews from other contractors were present; and, e. perform its work inefficiently, out of sequence and in a manner not contemplated at the time Quandel submitted its bid proposal. 25. The conduct of GFI and Bognet caused the Authority to breach its contract with Quandel, which required, among other things, the Authority to provide Quandel with complete specifications and responses to requests for information in a timely manner to enable Quandel to perform its work in accordance with the Contract documents. 26. As a result, Quandel incurred substantial delay damages in the completion of its Contract work, which total in excess of $545,000.00. i 27. The Authority was also caused to breach its contract with Quandel by GFI's failure to monitor the quality of the work of Bognet. 28. As a result, Quandel was prevented from performing its work in a timely manner and was further prevented from completing its work according to the original completion date. i0 COIINT I AUTHORITY V. GFI BREACH OF CONTRACT 29. The Authority incorporates by reference the averments in i~ paragraphs 1 through 29 above as though fully set forth at length herein. 30. GFI breached its contracts with the Authority by failing to fulfill the material terms of the Engineering Contract and the Construction Contract as described above. ~, 31. As a direct and proximate result of GFI's breach, the Authority has suffered damages as described above. j 32. As a further result of GFI's breach, the Authority is I ~i liable to Quandel for the additional Project costs Quandel incurred as set forth herein. 33. The Authority has satisfied all conditions precedent to its right to recovery. WHEREFORE, the Municipal Authority of the Borough of Shenandoah demands judgment in its favor and against the Defendant, Gannett Fleming, Inc., in an amount in excess of $50,000, together with interest thereon and the cost of this action. COUNT II AUTHORITY V. GFI BREACH OF EXPREBB WARRANTY 34. The Authority incorporates by reference the averments in paragraphs 1 through 34 above as though fully set forth at length herein. 11 35. GFI expressly warranted that the water treatment plant would be fit for its intended use. 36. GFI expressly warranted that the water treatment plant would conform to the description contained in the Engineering Contract. 37. GFI expressly warranted that the water treatment plant would conform to the appropriate industry standards and specifications. 38. GFI expressly warranted that the water treatment plant would be of good workmanship and construction. 39. In hiring GFI to design and construct the Project, the Authority reasonably relied upon GFI's express warranties as described above. 40. GFI breached the foregoing express warranties by failing to construct a water treatment plant fit for its intended use, and execute its contractual obligations with due care and in a good and workmanlike manner. 41. The damages referred to above are the direct and proximate result of GFI's failure to fulfill the aforementioned express warranties. WHEREFORE, the Municipal Authority of the Borough of Shenandoah demands judgment in its favor and against the Defendant Gannett Fleming, Inc., in an amount in excess of $50,000 together with interest thereon and the cost of this action. 12 COUNT III AUTHORITY V. GFI -REA^• ^° IMPLIED WARRANTY 42. The Authority incorporates by reference the averments in paragraphs 1 through 42 above as though fully set forth at length herein. 43. GFI impliedly warranted that it would perform its work on the water treatment plant in a good and workmanlike manner. 44. GFI impliedly warranted that the water treatment plant would be fit for its intended purpose. 45. GFI had an implied duty to exercise due care in the performance of its work. 46. In hiring GFI to design and construct the Project, the Authority reasonably relied on GFI's implied warranties as described above. 4'7. GFI breached the foregoing implied warranties by failing to construct a water treatment plant that is fit for its intended use and execute its responsibilities with due care and in a good and workmanlike manner. 4g, The damages referred to above are the direct and proximate result of GFI's breach the aforementioned implied warranties. WHEREFORE, the Municipal Authority of the Borough of Shenandoah demands judgment in its favor and against the Defendant, Gannett Fleming, Inc., in an amount in excess of 13 $50,000, together with interest thereon and the cost of this action. COUNT ZV AUTHORITY V. GFI ', NEGLIGENCE 49. The Authority incorporates by reference the averments in paragraphs 1 through 49 above as though fully set forth at length herein. 50. In the development and construction management of the water treatment plant, GFZ had a duty to exercise due care in the performance of its work, and conduct itself in accordance with the reasonable community standards of the engineering profession. 51. In the development and construction of the water treatment plant, GFI had a duty to act in accordance with ~ applicable codes, plans, specifications, industry standards and in a good and workmanlike manner. 52. GFI breached its duty to the Authority by negligently designing and managing the construction of the water treatment plant in violation of applicable codes, plans and specifications, and by failing to adhere to applicable industry standards. 53. GFI further breached its duty to the Authority by negligently exercising care in the performance of its work on the Project, and conducting itself in accordance with the reasonable community standards of the engineering profession. 54. The Authority was damaged as a direct and proximate cause of GFI's negligence as described above. la 55. The damages sustained by the Authority as described above were a direct and foreseeable consequence of GFZ's negligence. WHEREFORE, the Municipal Authority of the Borough of Shenandoah demands judgment against Gannett Fleming, Inc. for compensatory and punitive damages in an amount in excess of $50,000.00, together with interests, attorneys' fees and costs of suit and for such other relief as this Honorable Court shall deem just and proper. cooNT v ADTHORITY y. SOGNET BREACH OF CONTRACT 56. The Authority incorporates by reference the averments in paragraphs 1 through 56 above as though fully set forth at length herein. 57. Bognet breached its contract with the Authority by failing to perform its work in a good and workmanlike manner. 58. As a result of Bognet's failure to perform its work in a good and workmanlike manner, Bognet delayed and obstructed the prosecution of the work and the completion of the Project. 59. As a further result of Bognet's breach, the Authority is liable to Quandel for the additional Project costs Quandel incurred as outlined herein. 60. The Authority has satisfied all conditions precedent to its right to recovery. WHEREFORE, the Municipal Authority of the Borough of Shenandoah demands judgment in its favor and against the Defendant, 15 Gannett Fleming, Inc., in an amount in excess of $50,000, together with interest thereon and the cost of this action. LIPKIN, MAItRBHALL, HOHOnRA'Dn& THORNBIIR6 By: ~lat~,~C~v~nanlC.G~-~ Mark 8emanchik, Esquire I.D. No. 40484 One Norwegian Plata, Suite 200 Post Office BD% IZ $O Pottsville, Pennsylvania 17901 Attorney for Defendant Municipal Authority of the Borough of Shenandoah J ~; 1 6 POWELL, TRACHTMAN, LOGAN, GARBLE, BOWMAN & LOMBARDO, P.C. By: Mark S. McKain, Esquire Attorney l.D. Nos. 54364 367 South Gulph Road King of Prussia, PA 19406 (610) 354-9700 Attorneys for Plaintiff GANNETT FLEM[NG, INC. v. MUNICIPAL AUTHORITY OF'fHE nnunnr:H t7F SHENANDOAH IN THE COURT OF COMMON PLEAS Ur CUMBERLAND COUNTY, PENNSYLVANIA CI V I L ACTION --LA W NO. 9G-4639 CIV[L PLAINTIFF'S REPLY TO THE NEW MATTER CLAIMS OF DEFENDANT, MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH AND ANSWERTO COUNTERCLAIM Plaintiff/counterclaim defendant, Gannett Fleming, Inc. ("GFI"), by its counsel, Powell, Trachtman, Logan, Cattle, Bowman & Lombardo, P.C., hereby responds to the new matter claims of defendanUcounterclaim plaintiff, Municipal Authority of the Borough of Shenandoah ("Municipal Authority"), as follows: NEW MATTER 15. Denied. The averments of the cottesponding paragraph are conclusions of law to which no response is required. 1 G. Denied. The averments of the corresponding paragraph are conclusions of law to which no response is required. 17. Denied. The averments of the corresponding paragraph are conclusions of law to which no response is required. 18. Denied. The averments of the cottcsponding paragraph are conclusions of law to which no response is required. '~. ~_ ~~. 19. Denied. The averments of the corresponding paragraph arc conclusions of I:nv to which no response is rcquircd. 20. Denied. The averments of the corresponding paragraph arc conclusions of law to which no response is rcquircd. 21. Denied. The averments of the corresponding paragraph arc conclusions of law to which no response is required. 22. Denied. The averments of the corresponding paragraph are conclusions of law to which no response is required. 23. Denied. The averments of the corresponding paragraph arc conclusions of law to which no response is rcquircd. WHEREFORE, plaintiff/counterclaim defendant, Gannett Fleming, Inc., requests that the Court enter judgment in its favor, dismiss the new matter claims ofdefendant/counterclaim plaintiff, Municipal Authority of the Borough of Shenandoah, and award Gannett Fleming, Inc. such other relief as the Court deems appropriate, including costs and counsel fees. COUNTERCLAIM 24. By way of response to the counterclaim, plaintiff/counterclaim defendant, Gannett Fleming, Inc., incorporates its answer to the complaint in the action docketed in Schuylkill County at 5-819-1995, a copy of which is attached hereto a Exhibit "1". POWELL, RACHTM N, LOGAN, GARBLE, BOWMAN LOMB DO, P.C. By: ~. Mark S. McKain, Esquire VERIFICATION I, James L. Long, P.E., verify that I am a Senior Vice President of Plaintiff Gannett Fleming, Inc., and that I am authorized to make this verification on its behalf. I further verify that the averments contained in the foregoing Plaintiff's Reply to the New Matter Claims of Defendant, Municipal Authority of the Borough of Shenandoah and Answer to Counterclaim are true and correct to the best of my present knowledge, information and belief. 'T'his verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Dated: a •~ ~- 9 5 By: `~^•^~ ~~ J es L. Long, P.E. CF.RTIFICATF. OF SF.RVICF. 1, Mark S. McKain, Esquire, counsel for Plaintiff, certify that on March 27, 1998, a true and correct copy of the foregoing Plaintiff s Reply to the Ncw Matter Claims of Defendant, Municipal Authority of the Borough of Shenandoah and Answer to Counterclaim was fonvardcd to opposing counsel by U.S. Mail, postage prepaid, at the addresses below. Roy S. Cohen, Esquire Jamie L. Sandman, Esquire Cohen & Huntington, P.C. 1515 Market Street, 1 lth Floor Philadelphia, PA 19102 TEL: (215) SG4-1700 Counsel for Defendant LOGAN,CARRLE, ). P.C. BY: _~ v ~ - .~ Mark S. McKain, Esquire POWELL, TRACHTMAN, LOGAN, GARBLE, BOWMAN & LOMBARDO, P.C. BY: Gunther O. Carrie, Esquire Attorney I.D. No.: 32134 367 South Gulph Road King of Prussia, PA 19406 (610)354-9700 Attorneys for Additional Defendant Gannett Fleming, Inc. Ta: Roy 5. Cohen, Esyuire (Counsel for The Quandel Group, Inc. and \(unicipal Authority ofaorough of Shenandoah) end Frank Bagiel (Coum<I for Bogner, Inc.) • You are httcby notified to plead to the atuch<d pleading within twenty (ZO) days Gam the service hereof or a defaultjudgmenl may be mtered against you. Gunthm O. Carrie, Esyuir< Anomey far Gannen Fleming, Inc. THE QUANDEL GROUP, INC. v. MUNICII'AL AUTHORITY OF THE BOROUGH OF SHENANDOAH COURT OF COMMON PLEAS SCIIUYLKILL COUNTY NO. 819-1995 v. BOGNET, INC. and GANNETT INC. ANSWER AND NEW MATTER OF ADDITIONAL DEFENDANT GANNETT FLEMING, INC. TO THE COMPLAINT OF THE MUNICII'AL AUTHORITY OF THE BOROUGH OF SHENANDOAH WITH CROSS CLAIMS 1. Admitted on information and belief. 2. Admitted in part. Denied in part. The averments with regard to Gannett Fleming, Inc.'s principal place of business and its authorization to exist under the laws of the Commonwealth of Pennsylvania are admitted. The remaining averments are denied. To the 5671 I.4 contrary, Gannett Fleming, Inc. is a corporation duly organized and existing under the laws of the State of Delaware. Denied. After reasonable investigation, answering additional defendant is without knowledge or information sufficient to permit it to admit or deny the averments of the correspondingly numbered paragraph. Hence, they are deemed denied and strict proof thereof demanded at the time oCtrial, if material. 4. Admitted on information and belief. 5. Admitted on information and belief. 6. Admitted in part. Denied in part. The averments of the correspondingly numbered paragraph are admitted except that the Feasibility Study is a writing and as such speaks for itself. Consequently, any characterization ofthat study which attempts to limit its conclusions and recommendations as set forth in the averments of the correspondingly numbered paragraph is specifically denied. Admitted in part. Denied in part. The averments of the correspondingly numbered paragraph are admitted except that the Engineering Contract is a writing and as such speaks for itself. Consequently, any characterization ofthat contract which attempts to describe the requirements ofthat contract as set forth in the averments of the correspondingly numbered paragraph is specifically denied. By way of further answer, the Engineering Contract included services for other water supply projects in addition to the water filtration plant. 8. Admitted in part. Denied in part. It is admitted that the Engineering Contract required Gannett Fleming, Inc. to provide certain limited and specific engineering services as defined in that agreement in connection with the design of a water treatment plant with an initial rated capacity of approximately 3.2 million gallons per day. The remaining averments of the 56711.4 ~z- correspondingly numbered paragraph arc denied as stated. The projects described in subparagraphs 8.b. and 8.c. were separate projects derived from discussions in the Feasibility Study and were not a part of the water treatment plant as alleged. Admitted in part. Denied in part. The averments of the correspondingly numbered paragraph are admitted except that the Engineering Contract is a writing and as such speaks for itself. Consequently, any characterization of that contract which attempts to describe the requirements of that contract as set forth in the averments of the correspondingly numbered paragraph is specifically denied. 10. Admitted in part. Denied in part. The averments of the correspondingly numbered paragraph are admitted except that the report entitled Preliminary Design Criteria is a writing and as such speaks for itself. Consequently, any characterization which attempts to describe and limit the content of that report as set forth in the averments of the corcespondingly numbered paragraph is specifically denied. I1. Denied. The averments of the correspondingly numbered paragraph are specifically denied. To the contrary, the water treatment plant as described in the Engineering Contract did not differ materially from the Preliminary Design Criteria Report or the Feasibility Study. 12. Admitted in part. Denied in part. Except as expressly admitted in this paragraph, the averments of the correspondingly numbered paragraph are specifically denied. The averments of the correspondinglylnumbered paragraph reflect a substantial misunderstanding by the Authority of the scope of the project and the project components. The Engineering Contract was based upon several projects, in addition to the water treatment plant, which projects had discussed in the Feasibility Study. The 1.1 million gallon storage tank referred to in the 5671 L4 _3 Engineering Contract and the Feasibility Report as set forth in the averments of the correspondingly numbered paragraph did not represent the same component that was described as an 840,000 gallon water storage tank in the Preliminary Design Criteria Report. The I.I million gallon storage was not a part of the water treatment plant project. To the contrary, that tank was a separate project referred to as the Kehley Run tank. The 840,000 gallon storage tank referred to in the Preliminary Design Criteria Report served as the clear well for the water treatment plant. Byway of further answer, it is admitted that the Preliminary Design Criteria Report for the water treatment plant was based on the assumption that the Raven Run Reservoir No. 2 would be taken out of service rather than repaired. Because, however, the dam for that reservoir had not beer. breach at the time of construction of the water treatment plant, water was still able to flow to the water treatment plant from Reservoir No. 2. However, it is specifically denied that the transmission mains referred to in the Engineering Contract and the Feasibility Study as set forth in the averments of the correspondingly numbered paragraph are the transmission mains for the Raven Run water treatment plant. To the contrary, these lines were a transmission main project constructed in 1990 and not related to the water treatment plant project. 13. Admitted in part. Denied in part. The averments of the correspondingly numbered paragraph are admitted except that the Gannett Fleming, Inc. Proposal which was attached to and made a part of the contract is not included in Exhibit "4" and that the contract which the Authority has identified as the "Construction Contract" is a writing and as such speaks for itself. Consequently, any characterization of that contract (hereinafter "Contract for Professional Services") which attempts to describe the requirements of that contract asset forth in the averments of the correspondingly numbered paragraph is specifically denied. 56711.4 _4 14. Admitted in part. Denied in part. The averments of the correspondingly numbered paragraph are admitted except that the Contract for Professional Services which the Authority has identified as the "Construction Contract" is a writing and as such speaks for itself. Consequently, any characterization ofthat contract which attempts to describe the requirements ofthat contract asset forth in the averments of the correspondingly numbered paragraph is specifically denied. By way of further answer and without limiting the forgoing, Subparagraphs 14.a through 14.1 represent a correct quotation of portions of the Proposal which was incorporated in the contract dated September 3, 1997. 15. Denied. The averments of the correspondingly numbered paragraph are denied. To the contrary, in accordance with the Contract for Professional Services; Gannett Fleming, Inc. assisted the Authority in connection with the Authority's obligations to: advertise the Project for bid and obtain and review bids. 16. Admitted in part. Denied in part. It is admitted only that the contracts identified in the averments of the correspondingly numbered paragraph were awarded to the contractors listed in or about December, 1992. It is denied, however, that the contracts were awarded by Gannett Fleming, Inc. To the contrary, all contracts were awarded by the Authority. 17. Admitted. 18. Admitted in part. Denied in part. It is admitted only that as the result of change orders approved by the Authority the amounts paid to certain contractors was increased beyond the original amounts set forth in the contracts for construction. The remaining averments are specifically denied. To the contrary, any and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable, proper and prudent manner and in accordance with the applicable 56711.4 "5" standard of care and the requirements of any contract pursuant to which Gannett Fleming, Inc.'s services were rendered. 19. Denied. It is specifically denied that Gannett Fleming, Inc. made errors in its design of the water treatment plant. To the contrary, any and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contract pursuant to which such services were rendered. By way of further answer, however, the descriptions, as set forth in subparagraphs 19.a through s. of the correspondingly numbered paragraph, of conditions which were alleged to have existed in the Project at completion as the result of errors in the designs prepared by Gannett Fleming, Inc. are vague and imprecise thereby rendering the answering additional defendant unable to fully respond. Based on its understanding of the averments of the subparagraphs a through s, however, Gannett Fleming, Inc. responds as follows: a. Errors in the design elevation of the water treatment plant resulting in an insufficient water flow pressure from the reservoirs to the treatment plant - It is denied that this represents an error in design. The project was designed with the knowledge and understanding of the Authority to function with Raven Run Dam No. 3 as its primary raw water source and that Raven Run Dam No. 2 would eventually be breached. Raven Run Dam No. 2 was to be used as a raw water source only at time of low demand in the system. The pressures from the system are therefore adequate. b.... Errors in the pipe design in the Chemical Feed Room -Gannett Fleming, Inc. is unaware of the nature and scope of this claim and therefore cannot respond and must deny the averment for lack of knowledge based on this description. c. Insufficient air flow in the Electrical Room -Gannett Fleming, Inc. is unaware of the nature and scope of this claim and therefore cannot respond and must deny the a~~erment for lack of knowledge based on this description. d. Insufficient air flow in the Carbon Feed Room -Gannett Fleming, Inc. is unaware of the nature and scope of this claim and therefore cannot respond and must deny the'averment for lack of knowledge based on this description. 56711.4 -6' The use of an open rinse line in the Filter Pipe Gallery allowing the escape of chlorine fumes which are corroding stainless steel - It is denied that this represents an error in design. To the contrary, PaDER requires there to be an open rinse line. The open rinse line is to be operated for only approximately 15 minutes every other day. Subsequent, to the start of operation and in response to complaints by the Authority of a strong odor of chlorine, Gannett Fleming, Inc. observed the operation and recommended changes which eliminated the complaint. The excessive amounts of prechlorine being feed by the operators may have accelerated corrosion of the stainless steel. f. Failure to seal fully the clarifiers resulting in water leakage and steel corrosion in the Filter Pipe Gallery - It is denied that this represents an error in design. Gannett Fleming, Inc. is unaware of the nature and scope of this claim and therefore cannot respond and must deny the averment for lack of knowledge based on this description. It appears for the description and therefore Gannett Fleming, Inc. avers that the condition is the result of a defect in the construction work performed by Quandel. g. Insufficiently sized sludge drying beds - It is denied that this represents an error in the design. The dry beds are adequately sized. Adjustments typical of the type necessary during the early stages or plant operation, including changes in the manner in which the plant was operated by the Authority, were made and it is Gannett Fleming, Inc.'s belief have resolved any difficulties. h. Erroneously located loading dock - It is denied that this represents an error in the design. The dock was properly located for its originally intended use, as requested by the Authority, for loading/unloading pipe, fittings, etc. to be stored in the Material Storage area. The dock was never intended to be used for delivery of chemicals which appears to be its current by the Authority. Erroneously specified light fixtures in the Filter Control Room which are corroding from escaping chlorine fumes -Gannett Fleming, Inc. is unaware of the nature and scope of this claim and therefore cannot respond and must deny the averment for lack of knowledge based on this description. Computer design deficiencies relative to the chlorine scale - It is denied that this is an error in design. The signal wire for the chlorine scale was not attached to the Main Control Panel because it was not part of the design intent, and was unnecessary, to receive this signal into the MCP or display it through the computer system. Gannett Fleming, Inc. advised the Authority that this was an option which the Authority could have implemented by the contractor. k. Insufficient ventilation in the Filter Control Room -Gannett Fleming, Inc. is unaware of the nature and scope of this claim and therefore cannot respond and must deny the averment for lack of knowledge based on this description. 56711.4 -7- Errors in the piping design of the turbidimeter, analyzers and hose bib -Gannett Fleming, Inc. is unaware of the nature and scope of this claim and therefore cannot respond and must deny the averment for lack of knowledge based on this description. m. Improperly designed pipes in the sludge drains -Gannett Fleming, Inc. is unaware of the nature and scope of this claim and therefore cannot respond and must deny the averment for lack of knowledge based on this description. n. Omissions in the design of a single holding tank system which fails to account for potential contamination -Gannett Fleming, Inc. is unaware of the nature and scope of this claim and therefore cannot respond and must deny the averment for lack of knowledge based on this description. o. Errors in the design of the emergency release in the Chlorine Feed Room - It is denied that this is an error in design. The water treatment plant was approved by the PaDER as designed. p. Errors in the design of the pressure engaged exterior lights -Gannett Fleming, Inc. is unaware of the nature and scope of this claim and therefore cannot respond and must deny the averment for lack of knowledge based on this description. q. Omission of toggle switches on the chlorine and filter aid distribution panel - It is denied that this is a design error. The toggle switch was unnecessary but requested by the plant operators as a convenience. Gannett Fleming, Inc. had offered to have the switch installed bat was denied the opportunity to do so by the Authority. r. Omission of technical data on the serial plates of the rebuilt pumps - It is denied that this is an error in design. The plates contained the correct technical data but were not installed by the manufacturer or contractor. Gannett Fleming, Inc. offered to install them as another accommodation for the Authority but was denied the opportunity to do so. s. Errors in the design of the automatic dialer with regard to the fire and security systems - It is denied that this is an error in design. The automatic dialers were added after the Authority decided to alter its earlier decision to man the plant 24 hours per day. The dialers as installed included only the alarms that were shown on the annunciator at the plant. These did not include the fire and security. Gannett Fleming, Inc. recommended to the Authority that they have the contractor add those two signals. By way of further answer, any and all services rendered by Gannett Fleming, Inc. in connection with the project were rendered in a reasonable, proper and prudent manner and in 56711.4 -$" accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. With regard to those conditions described in the subparagraphs of the correspondingly numbered paragraph that required certain adjustments or changes to the water treatment plant, the conditions described, to the extent they can be understood from the description given, represent conditions which either: i) constitute defective work which the contractors are responsible for correcting; or ii) reflect the Authority's lack of understanding as to the proper manner in which to operate the water treatment plant; or iii) constitute revisions to the design which the Authority may find desirable but do not constitute the correction of design errors; or iv) are part of the normal fine-tuning process which is typical of all water treatment plants and which is necessary to permit the Project to functionin accordance with the drawings and specifications prepared by Gannett Fleming, Inc. At all times, Gannett Fleming, Inc. offered to assist the Authority in addressing such issues. The Authority, . however, terminated Gannett Fleming, Inc.'s involvement with the Project and precluded them from proceeding with the process of addressing the conditions. 20. Denied. After reasonable investigation, answering additional defendant is without knowledge or information sufficient to permit it to admit or deny those averments of the correspondingly numbered paragraph which describe certain consequential damages claimed to have been sustained by the Authority. Hence, they are deemed denied and strict proof thereof demanded at the time of trial, if material. By way of further answer, however, it is specifically denied that any damages sustained by the Authority were caused in whole or in part by any act, error or omission of Gannett Fleming, Inc. in the performance of services for the Project. To the contrary, any and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable, ssn t.a -9- proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. 21: Admitted in part. Denied in part. It is admitted only that substantial completion of the Project occurred 210 days after the date set forth in the contracts for construction. By way of further answer, however, it is specifically denied that Gannett Fleming, Inc. failed to properly manage the construction of the Project or that its designs contained errors or omissions which delayed the Project or that it contributed in any way to any delays which occurred. Indeed, Gannett Fleming, Inc. had no duty or authority, contractually or otherwise, to "manage construction" as that term is typically used in the construction industry. Rather, Gannett Fleming, Inc. was retained to provide the limited and specific engineering and construction management services set forth in the Contract for Professional Services, which services did not include managing the actual construction. To the contrary, any and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. Any delays to the completion of the Project were caused entirely by the acts of the contractors performing the work including in connection with managing the construction performed by them or by other factors over which Gannett Fleming, Inc. had no control and for which it was not responsible. 22. Denied. After reasonable investigation, answering additional defendant is without knowledge or information sufficient to permit it to admit or deny those allegations of the correspondingly numbered paragraph which allege that there were additional costs for which the Authority was liable to Quandel. Hence, such averments are deemed denied and strict proof thereof demanded at the time of trial, if material. By way of further answer, however, it is 56711.4 -10~ specifically denied that there were any design errors or omissions for which Gannett Fleming, Inc. is responsible or that Gannett Fleming, Inc. engaged in any liability producing conduct which would render the Authority liable to Quandel for additional costs. To the contrary, any and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable, proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. Any additional costs for which the Authority maybe liable to Quandel were the result of properly executed change orders not the result of errors, omissions or breaches of contract or warranty in the services rendered by Gannett Fleming, Inc. 23. Denied. After reasonable investigation, answering additional defendant is without knowledge or information sufficient to permit it to admit or deny those allegations of the correspondingly numbered paragraph which allege that there were additional costs for which the Authority was liable to Quandel. Hence, such averments are deemed denied and strict proof thereof demanded at the time of trial, if material. It is, however, specifically denied that any act or failure to act on the part of Gannett Fleming, Inc. caused Quandel to incur costs in excess of those which it was required as the result of its contractual relationship with the Authority. To the contrary, any and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable, proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. Any additional costs incurred by Quandel were caused in whole by the acts or failure to act of Quandel or others for whose acts or failures to act Gannett Fleming, Inc. was not responsible. By way of further answer, any defects in the work of Bognet and any delays to Quandel's performance related thereto were not caused by any act or failure to act on the part of Gannett 66711.4 -1 1- Fleming, Inc. Also, by way of further answer, Gannett Fleming, Inc. did not, nor was it responsible to, "design" as that term is typically used the instrumentation system. Gannett Fleming, Inc. prepared a performance specification from which the instrumentation subcontractor retained by Quandel was to prepare the design for the instrumentation system. Any delays in the completion of the instrumentation were caused entirely by the failure of Quandel and Quandel's instrumentation subcontractor to properly and timely implement the requirements of the Contract Documents, which were complete and adequate, as they related to the instrumentation for the Project. Such failures included Quandel's failure to timely enter into a contract with an instrumentation subcontractor. Also by way of further answer, any requirements imposed on Quandel during the construction were consistent with the requirements of its contract with the Authority. Indeed it was Quandel's contractual responsibility as confirmed by Quandel at a preconstruction conference on January I1, 1993 to coordinate its work and its schedule with that of the other contractors. 24. Denied. After reasonable investigation, answering additional defendant is without knowledge or information sufficient to permit it to admit or deny those allegations of the correspondingly numbered paragraph relating to the manner in which Quandel performed the work required of it. Hence, such averments are deemed denied and strict proof thereof demanded at the time of trial, if material. By way of further answer, however, it is specifically denied that any act or failure to act on the part of Gannett Fleming, Inc. in any way caused Quandel to perform its work in any manner other than that in which it was required to perform in accordance with its contract with the Authority or in a manner that would form a basis for liability on the part of Gannett Fleming, Inc. 56711.4 -12- 25. Denied. After reasonable investigation, answering additional defendant is without knowledge or information sufficient to permit it to admit or deny those allegations of the correspondingly numbered paragraph relating to any breach by the Authority of its contract with Quandel. Hence, such averments are deemed denied and strict proof thereof demanded at the time of trial, if material. By ~vay of further answer, however, it is specifically denied that any conduct by Gannett Fleming, Inc. caused or in any way contributed to any breach by the Authority of its contract with Quandel. Gannett Fleming, Inc. rendered any and all services required of it in a reasonable, proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. 26. Denied. After reasonable investigation, answering additional defendant is without knowledge or information sufficient to permit it to admit or deny those allegations of the correspondingly numbered paragraph relating to any additional costs incurred by Quandel in the performance of its work. Hence, such averments are deemed denied and strict proof thereof demanded at the time of trial, if material. However, it is specifically denied that any delays and any costs related thereto were caused in whole or in part by any liability producing conduct on the part of Gannett Fleming, Inc. To the contrary, Gannett Fleming, Inc. rendered any and all services required of it in a reasonable, proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. Any delays to the completion of the Project were caused entirely by the acts of Quandel and/or the other contractors performing the work including in connection with managing the construction performed by them or by other factors over which Gannett Fleming, Inc. had no control and for which it was not responsible. se~n.a -13- 27. Denied. ARer reasonable investigation, answering additional defendant is without knowledge or information sufficient to permit it to admit or deny those allegations of the correspondingly numbered paragraph relating to any breach by the Authority of its contract with Quandel. Hence, such averments are deemed denied and strict proof thereof demanded at the time of trial, if material. By way of further answer, however, it is specifically denied that any conduct by Gannett Fleming, Inc. caused or in any way contributed to any breach by the Authority of its contract with Quandel. To the contrary, Gannett Fleming, Inc. rendered any and all services required of it, including services related to the monitoring the quality of Bognet's work, in a reasonable, proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. 28. Denied. The averments of the correspondingly numbered paragraph are specifically denied. To the contrary, any and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. Any delays to the completion of the Project were caused entirely by the acts, errors or omissions of Quandel and/or the other contractors performing the work or by other factors over which Gannett Fleming, Inc. had no control and for which it was not responsible. COUNTI AUTHORITY V. GANNETT FLEMING, INC. BREACH OF CONTRACT 29. Answering additional defendant incorporates by reference paragraphs 1 through 28 of this Answer as if set forth herein at length. 30. Denied. The averments of the correspondingly numbered paragraph are specifically denied. To the contrary, any and all services rendered by Gannett Fleming, Inc. -14- 56711.4 were rendered in a reasonable proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. 31. Denied. The averments of the correspondingly numbered paragraph are specifically denied. Gannett Fleming, Inc. incorporates by reference its answers to paragraphs 19 through 28 and 30 of this answer as if set forth herein at length. 32. Denied. The averments of the correspondingly numbered paragraph are specifically denied. Gannett Fleming, Inc. incorporates by reference its answers to paragraphs 19 through 28 and 30 of this answer as if set forth herein at length. Gannett Fleming, Inc. 33. Denied. The averments of the correspondingly numbered paragraph are specifically denied. To the contrary, the Authority has failed to comply with the requirements of the Contract for Professional Services and is in breach of that agreement. Said breach consisted of, among other things, the Authority's wrongful failure to make substantial payments due under that agreement. As the result of its wrongful conduct and breach of contract, the Authority is barced from any recovery against Gannett Fleming, Inc. WHEREFORE, answering additional defendant Gannett Fleming, Inc. prays this Honorable Court to enter judgment in its favor and against the Municipal Authority of the Borough of Shenandoah, dismiss the Authority's joinder complaint, award the answering additional defendant its costs including attorney's fees and grant such other relief as this Honorable Court deems appropriate or necessary. COUNT II AUTHORITY V. GANNETT FLEMING, INC. BREACH OF EXPRESS WARRANTY 56711.4 -IS- 34. Answering additional defendant incorporates by reference paragraphs 1 through 33 of this Answer as if set forth herein at length. 35. Denied. It is specifically denied that Gannett Fleming, Inc. made any warranties express or implied. By way of further answer, it is expressly denied that the water treatment plant was not fit for its intended use. To the contrary, the water treatment plant was permitted by the PaDER and the treated water has met current drinking water standards. 36. Denied. It is specifically denied that Gannett Fleming, Inc. made any warranties express or implied. Byway of further answer, it is expressly denied that the water treatment plant did not conform to the requirements of the Engineering Contract. To the contrary; the water treatment plant was permitted by the PaDER and the treated water has met current drinking water standards. By way of further answer, Gannett Fleming, Inc. incorporates by reference paragraphs 7,8 and 12 of this Answer as if set forth herein at length. 37. Denied. It is specifically denied that Gannett Fleming, Inc. made any warranties express or implied. By way of further answer, it is expressly denied that the water treatment plant did not conform to the appropriate industry standards and specifications. To the contrary, the water treatment plant was pemtitted by the PaDER and the treated water has met current drinking water standards. 38. Denied. It is specifically denied that Gannett Fleming, Inc. made any warranties express or implied. Byway of further answer, Gannett Fleming, Inc. was retained to provide engineering and construction administration services in connection with the Project. Gannett Fleming, Inc. did not, and was not retained to, construct the Project. 39. Denied. It is specifically denied that Gannett Fleming, Inc. made any warranties express or implied. 56711.4 -16- 40. Denied. It is specifically denied that Gannett Fleming, Inc. made any warranties express or implied. By way of further answer, Gannett Fleming, Inc. did not construct the water treatment plant. Gannett Fleming, Inc. is a design professional that does not provide construction work. Also, by way of further answer, it is specifically denied that Gannett Fleming, Inc. failed to fulfil any of its contractual obligations. To the contrary, any and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. Byway of further answer, the water treatment plant and the project are fit for their intended use. Indeed, the water treatment plant was permitted by the PaDER and the treated water has met current drinking water stalydards. 41. Denied. The averments of the corcespondingly numbered paragraph are specifically denied. Gannett Fleming, Inc. incorporates by reference its answers to paragraphs 19 through 28 of this answer as if set forth herein at length. WHEREFORE, answering additional defendant Gannett Fleming, Inc. prays this Honorable Court to enterjudgment in its favor and against the Municipal Authority of the Borough of Shenandoah, dismiss the Authority's joinder complaint, award the answering additional defendant its costs including attorney's fees and grant such other relief as this Honorable Court deems appropriate or necessary. COUNT III AUTHORITY V. GANNETT FLEMING, INC. BREACH OF L1'IPLIED WARRANTY 42. Answering additional defendant incorporates by reference paragraphs 1 through 41 of this Answer as if set forth herein at length. -17- 56711.4 43. Denied. It is specifically denied that Gannett Fleming, Inc. gave any implied warranties. Byway of further answer, Gannett Fleming, Inc. was retained to provide engineering services including constmction administration services. Gannett Fleming, Inc. did not, and was not retained to, provide the actual construction of the water treatment plant. My and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable proper and prudent manner and in accordance with the applicable standard ofcare and the requirements of any contracts pursuant to which the services,were rendered. 44. Denied. It is specifically denied that Gannett Fleming, Inc, gave any implied warranties. By way of further answer, it is specifically denied that the water treatment plant was not fit for its intended purpose. To the contrary, the plant was fit for its intended purpose. Indeed, the water treatment plant'was permitted by the PaDER and the treated water has met current drinking water standards. 45. The averments of the correspondingly numbered paragraph constitute conclusions of law to which no reply is required. Byway of further answer, any and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable, proper and prudent manner and in accordance with the applicable standard ofcare and the requirements of any contract pursuant to which such services were rendered. 46. Denied. It is specifically denied that Gannett Fleming, Inc. gave any implied warranties. By way of further answer, Gannett Fleming, Inc. was retained to provide engineering services including construction administration in connection with the project. Gannett Fleming, Inc. did not, and was not retained to, provide the actual construction of the Project. , 56711.4 " 18" 47. Denied. It is specifically denied that Gannett Fleming, Inc, gave any implied warranties. By way of further answer, Gannett Fleming, Inc. did not construct the water treatment plant. Gannett Fleming, Inc. is a design professional that does not provide construction services. Also, by way of further answer, it is specifically denied that Gannett Fleming, Inc. failed to fulfil any of its contractual obligations. To the contrary, any and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. By way of further answer, the water treatment plant is fit for its intended purpose. Indeed, the water t; eatment plant was permitted by the PaDER and the treated water has met current drinking water standards. 48. Denied. The averments of the correspondingly numbered paragraph are specifically denied. Gannett Fleming, Inc. incorporates by reference its answers to paragraphs 19 through 28 of this answer as if set forth herein at length. WHEREFORE, answering additional defendant Gannett Fleming, Inc. prays this Honorable Court to enter judgment in its favor and against the Municipal Authority of the Borough of Shenandoah, dismiss.the Authority's joinder complaint, award the answering additional defendant its costs including attorney's fees and grant such other relief as this Honorable Court deems appropriate or necessary. COUNT IV AUTHORITY V. GANNETT FLEMIIvG, INC. NEGLIGENCE 49, Answering additional defendant incorporates by reference paragraphs 1 through 48 of this Answer as if set forth herein at length. -19- 5671 L4 50. The averments of the correspondingly numbered paragraph constitute conclusions of law to which no reply is required. 51. The averments of the correspondingly numbered paragraph constitute conclusions of law to which no reply is required. Byway of further answer, Gannett Fleming, Inc. was only retained to provide engineering services including specific construction administration services. Gannett Fleming, Inc. did not, and was not retained to, actually construct the Project. Also, by way of further answer, Gannett Fleming, Inc. rendered any and all services required of it in a reasonable, proper and prudent manner and in accordance with the applicable standard of care and the requirements o£any contract pursuant to which such services were rendered. 52. Denied. The averments of the correspondingly numbered paragraph ate specifically denied. Gannett Fleming, Inc. was retained to provide engineering and certain construction management services as set forth in the Contract for Professional Services. Gannett Fleming, Inc. was not retained for "managing the construction" which term is undefined, but implies that Gannett Fleming, Inc. possessed substantially greater authority and control with regard to the actual construction than it in fact had. Byway of further answer, any and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. 53. Denied. The averments of the correspondingly numbered paragraph are specifically denied. To the contrary, any and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. 56711.4 -20- 54. Denied. The averments of the correspondingly numbered paragraph are specifically denied. Gannett Fleming, Inc. incorporates by reference its answers to paragraphs 19 through 28 and 49 through 53 of this answer as if set forth herein at length. 55. Denied. The averments of the correspondingly numbered paragraph are specifically denied. Gannett Fleming, Inc. incorporates by reference its answers to paragraphs 19 through 28 and 49 through 53 of this answer as if set forth herein at length. WHEREFORE, answering additional defendant Gannett Fleming, Inc. prays this Honorable Court to enter judgment in its favor and against the Municipal Authority of the Borough of Shenandoah, dismiss the Authority's joinder complaint, award the answering additional defendant its costs including attorney's fees and grant such other relief as this Honorable Court deems appropriate or necessary. COUNT V AUTHORITY V. BOGNET BREACH OF CONTRACT 56.-60. The averments of the corcespondingly numbered paragraph are directed against another answering defendant and hence no reply is required from this Gannett Fleming, Inc. NEW MATTER 61. The Authority's Joinder Complaint fails to state a cause of action upon which relief may be granted. 62. Any and all services rendered by Gannett Fleming, Inc. were rendered in a reasonable proper and prudent manner and in accordance with the applicable standard of care and the requirements of any contracts pursuant to which the services were rendered. 567 t 1.4 -21- 63. Any damages sustained by the Authority were caused solely by the acts, breaches of contract or breach of warranty of individuals or entities over whom the answering additional defendant Gannett Fleming, Inc. exercised no jurisdiction direction or control and for whose conduct the answering additional defendant is not liable. 64. Any payments made by the Authority to Quandel for additional costs as defined in the Authority's Joinder Complaint were not required by its agreement with Quandel or otherwise and were made as a volunteer for which no recovery is permitted from any party. 65. Any claims by the Authority are barred by the applicable statute of limitations. 66. Any claim against Gannett Fleming, Inc. is barred by the Authority's substantial and material breach of the Contract for Professional Services as the result of its wrongful failure to make payments to Gannett Fleming, Inc. for services rendered. 67. Any damages claimed for the benefit of The Quandel Group, Inc. are barred by the economic loss doctrine. 68. To the extent that,the Authority seeks to recover damages alleged to have been incurred by and paid to Quandel, such recovery must be denied based on Quandel's failure to mitigate its damages. WHEREFORE, answering additional defendant Gannett Fleming, Inc. prays this Honorable Court to enter judgment in its favor and against the Municipal Authority of the Borough of Shenandoah, dismiss the Authority's joinder complaint, award the answering additional defendant its costs including attorney's fees and grant such other relief as this Honorable Court deems appropriate or necessary. 56711.4 -22- NEW MATTER PURSUANT TO RULE 2252(d) COUNTI AGAINST BOGNET, INC. Gannett Fleming, Inc. incorporates herein by reference, but without admitting the truth thereof, the allegations of the Authority's joinder complaint insofar as they relate to the named additional defendant, Bogner, Inc. 2. IFthe incorporated allegations of the Authority'sjoinder complaint are proven at trial, and to the extent any liability is adjudged against Gannett Fleming, Inc. ,Gannett Fleming, Inc. is entitled to contribution and/or indemnity from the named defendant, jointly and severally. If the incorporated allegations of the Authority's joinder complaint are proven at trial, then, the defendant is alone liable to the Authority. WHEREFORE, answering additional defendant, Gannett Fleming, Inc., hereby demands judgment in its favor against the Bognet, Inc., including the reasonable costs and legal fees incurred in defending this litigation. II. GANNETT FLEMING, INC. V. THE QUANDEL GROUP (TORTIOUS INTERFERENCE WITII CONTRACT) During the period,of contract performance and through to the present, Quandel, without a privilege to do so, and with the intention of harming Gannett Fleming, Inc., purposely engaged in a course of conduct calculated to cause the Authority not to perform its contract with Gannett Fleming, Inc. In furtherance of its wrongful purpose, on information and belief, Quandel engaged in the following wrongful conduct, calculated to cause the Authority to breach its . contract with Gannett Fleming, Inc.: 56n t.a -23- (a) falsely represented to the Authority that Gannett Fleming, Inc. was responsible for the delays which were in fact attributable to deficiencies in Quandel's performance and that of its subcontractors and delays in completing their work; (b) falsely represented to the Authority that Gannett Fleming, Inc. was responsible for defects in the project which were in fact attributable to deficiencies in Quandel's performance and that of its subcontractors and delays in completing their work; and (c) when it appeared that t}~e Authority was about to reach an agreement with Gannett Fleming, Inc. regarding unpaid contract balances or otherwise inclined to settle its accounts with Gannett Fleming, Inc., caused the Authority to enter an agreement ceding to Quandel the control over the payment of contract balances to Gannet Fleming, Inc. Quandel's conduct in inducing the Authority to breach its contract with Gannett Fleming, Inc. was not undertaken for any legitimate purpose, but rather without privilege and for the purpose of causing harm to Gannett Fleming, Inc. in its business. 4. Quandel entered into its course of conduct with the purpose of concealing from the Authority the fact of its errors in construction and delays in the performance of its work. As a result of Quandel's wrongful interference with contract, Gannett Fleming, Inc. has suffered, inter alia, the following harms: (a) nonpayment of contract balances due and owing; (b) loss of working capital, injury to business, interest charges and loss of profits. 6. Gannett Fleming, Inc.'s losses resulting from Quandel's interference with contract exceed the sum of $200,000, plus lawful interest. 557 t t.a -24- WEIEREFORE, Gannett Fleming, Inc. requests judgment in its favor and against The Quandel Group for compensatory damages in excess of $200,000, and for exemplary damages in an undetermined amount, and for lawful interest and such other relief as may be appropriate in the circumstances. POWELL, TRACHTMAN, LOGAN, GARBLE, BOWMAN & LOMBARDO, P.C. By: C-~i'•~C' C Gunther O. Carrle, Esquire Attorney i.D. No.: 32134 367 South Gulph Road King of Prussia, PA 19406 (610) 354-9700 Attorneys for Additional Defendant Gannett Fleming, Inc. Date: September 19, 1997 5671 l.4 -25- VERIFICATION I, Gunther O. Carne, Esquire, counsel for Gannett Fleming, Inc., hereby state that the averments contained in the foregoing Answer and New Matter of Additional Defendant Gannett Fleming, Inc. to the Complaint of the Municipal Authority of the Borough of Shenandoah with Cross Claims are true and correct to the best of my knowledge, information and belief and that I make this Verification subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. Gunther 0. Carne, Esquire Date: September 19, 1997 Certificate of Service I, Gunther O. Carne, Esquire, counsel for Gannett Fleming, Inc., certify that on September 19, 1997, a true and correct copy of the foregoing Answer and New platter of Additional Defendant Gannett Fleming, Inc. to the Complaint of the Municipal Authority of the Borough of Shenandoah with Cross Claims was forwarded to opposing counsel by U.S. Mail, postage prepaid, at the addresses below. Roy S. Cohen, Esquire Jamie L. Sandman, Esquire Cohen & Huntington, P.C. 1515 Market Street, Eleventh Floor P.O. Box 59449 Philadelphia, PA 19102 TEL: (215) 564-1700 FAX: (215) 564-3066 Counsel for Plaintiff and for Municipal Authority of the Borough of Shenandoah Fran}: Bognet, Esquire 21 North Locust Street Hazleton, PA 18201 TEL: (717) 459-1700 FAX: (717)459.1221 Counsel for Bognet, Inc. Mark Semanchik, Esquire Lipkin, Marshall, Bohorad & Thornburg One Norwegian Plaza P.O. Box 1280 Pottsville, PA 17901-7280 TEL: (717) G22-181 I FAX: (717) 622-4850 Counsel for Municipal Authority of the Borough of Shenandoah POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By: Gunther O. Carne, Esquire 56711.4 ~'' ~=: ~• ~. ~r. u_i" ' (.i •. ' ~ ~" . ~_ ~ : ~ _ - ~~ __ ~i, ~~ U '' Gi (. I'UWh:LL,'I'ItA('I ffMAN, LO(iAN. ('A It ltl h. BUWMAN h LUMIi,\ItUU, I'.l'. DAVID W. 1'ItAN('Iti, IitiQ, A"I"fORNfY LU. g5J71N I IS NORTII tiGC(IND S'I'IiliC'1' IIARRItiDUR(i, 1'A 171(11 1717) 2JN!)J00 PAX: (717) 2JN-9325 A'ffONNGYS POR UllfIiNUANTti IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA GANNETT FLEM[NG, INC. v. MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH CIVIL ACTION --LAW DOCKET NO. 9G-4G39 ENTRY OF APPF,ARANCF, Kindly enter my appearance in this matter as attomcy for Gannett Fleming, Inc. Please remove Mark S. McKain as counsel for Gannett Fleming, Inc. Date: October 12, 2001 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By David W. Francis I.D. #53718 1 14 North Second Street Harrisburg, PA 17101 (717) 238-9300 HB:42773v1 3034-10 CERTIFICA'T'E: OF SERVICE. I hereby certify that on October 12, 2(101, I served a true and correct copy of F.NTRY OF APPEARNACE on the following person(s) by U.S. Mail, postage prepaid. Jamie Sandman, Esq. Cohen, Seglias, Pallas &. Grcenhall 1515 Market Street, 11th Floor Philadelphia, PA 19102 David W. Francis H8:32948vi 3034.03 L r i r~ ~.. ~ C`~ 'r _ i_~ ~ .i' 'rn ~ ,.1 } -~ __ ~ f, C~i ~{dill ~ C ~2 :. ~ U ~, G~umberlandyCounty Pennsylvania Filc No. 199604639 GANNETT FLEMING INC vs SHENANDOAH BOROUGH OF ET AL STATEMENT OF INTENTION TO PROCEED To the Court: e in Inc. intends to proceed with the above captioned matter. ~~~ • i n F ands Date: 9/30/04 Inc. Attorney for Gannett Fleming ., ~~ ;~~ ~ = <<:_ -~:, - - _ ~ : ~,_ -- <., ~; J GANNETT FLEMING, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH, . Defendant 96-4639 CIVIL TERM ORDER OF COURT AND NOW, this 30th day of October, 2001, in the case of Gannett Fleming, Inc. versus Municipal Authority of the Borough of Shenandoah at No. 96-4639 Civil Term, and the Court being in receipt of a letL-er from David W. Francis, Esquire, Plaintiff's counsel, requesting that this case be stricken from the purge list because of its association with a related pending case, the case is stricken from the purge list and shall remain active. David W. Francis, Esquire 114 N. Second St. Hbg., PA 17101 For the Plaintiff Mark Semanchik, Esquire O~-~ 200 One Norweigan Plz. ~I_2L-Q~~ P.O. Box 1260 llR}~ Pottsville, PA 17901-7280 For the Defendant Jaime L. Sandman, Esquire 1515 Market Street, 11th F1. Philadelphia, PA 19102 For the Defendant pcb r, ,_~ ' c' __ ., I' I I !/, ' ~D f l,.. '. ~. . -. . - , -; - c; ~ , -, =:~ -< ' ~ -_ J By the Court, CARRECTION Previous Image Refilmed to Correct Possible Error O 3 i 9. 1'OWELL, TRACHTMAN, LOGAN, GARBLE, I30WMAN 3c LOMI3ABU0, I'.C. 13y: Gunther O. Carrle, Esyuirc Attorney LD. No.: 32134 3G7 South Gulph Road King of Prussia, PA 1940( (61U) 354-9700 Attorneys for Gannett Fleming, Inc. GANNETT FLEMING, INC. , Plaintiff V. IN THE COURT OF COMMON PLEAS CUMI3CRLAND COUNTY, PA MUNICIPAL AUTHORITY OF T}1E 130120UGH OF SHENANDOAH, Defendant N0.9G-4639 CIVIL CIVIL ACTION COMPLAINT Count I -Breach of Contract The Plaintiff Gannett Fleming, Inc. ("Gannett") is a corporation duly organized and existing under die laws of the State of Delaware with a principal place of business at 207 Senate Avenue, Camp llill, Pennsylvania 17011 and at all times material hereto was in the business of providing professional engineering services. 2. The defendant Municipal Authority of the [3orough of Shenandoah ("Authority") is a nmicipal authority duly organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business at 26-28 West Lloyd Street, Shenandoah, Pennsylvania. 3, On or about September 3, 1992. Gannett and the Authority entered into an agreement ("Engineering Agreement') pursuant to which Gannett was to provide those specific professional engineering services described therein in connection with the Authority's construction of a new water treatment plant known as the Raven Run Water "Prcaunent Plant and related facilities ("Protect")and the Authority was to pay Gannett for basic and additional services rendered and expenses incurred. A true and correct copy of the Engineering Agreement is attached hereto, made a part hereof and referenced as Exhibit "A" 4, Gmme[t undertook to provide, and did satisfactorily provide, ull services required by the Engineering Agreement for which invoices have been submitted. 5, For the Construction Phase Engineering Services provided by Gannett, Gannett has submitted invoices to the Authority rotating Six Hundred and Pive Thousand Three 1-lundred and Twenty-Three Dollars and Filly Cents ($60>323.~0). (~. Gannett has satisfied any and all conditions precedent to its entitlement to receipt of payment Goat the Authority. 7, "Che Authority has paid Gannett a total of Four Hundred and Eighteen Thousand 'fwo 1 lundred and Eighty-Six Dollars and Forty-Six Cents ($418,286.46) as a credit against the invoices submitted for which payment is ctuc. x Despite the repeated demand by Gannett, the Authority has refused and conunucs to refuse to pay fees and expenses totaling Onc Hundred and Gighty-Seven Thousand and Thirty- Seven Dollars and Four Cents ($187,037.04), plus interest on the outstanding amount all of which is now due and owing to Gannett. q, The Authority's reliisal to pay the sums due and owing to Gannett is a breach of the ingineering Agreement for ~ehidt the Authority is liable to Gannett for One I lundred and Eighty-Seven'fhousand :uul'I'hirty-Seven Dollars and Fuur Cents ('6187,037.04), plus interest on the outstanding amount all of which is now due and owing to Gannett. WHE12EfORC, Gannett Fleming, lnc. prays this lionontble Court enterjudgment in its favor and against Municipal Authority of the Borough of Shenandoah in the sum of Onc Flundrcd and 13ighty-Seven l'housand and '1"hirty-Seven Dollars and Four Cents ($) 87,037.04), plus interest. Count 11 -Unjust Enrichment 10. Plaintiff incorporates by reference Paragraphs I - 9 of this Complaint as if set ti>rth herein at length. 11. "the fair and rrisonahlc value of the services rendered and expenses incurred by Gannett in the Authority's interest in connection with the Project is Six Flundred and Pivc Thousand'threc Hundred and'I'wcnty=l'hrec Dollars and Fifty Cents ($605,323.50). 12. The Authority has paid Gannett a total of Pour l lundred and Cighteen "thousand "I'wo 1 lundred and Eighty-Six Dollars and Forty-Six Cents ($418,286.46) as a credit against the fair and reasonable value of the services rendered and expenses incurred by Gannett for the Authority's benefit in connection with the Project. 13. A total of One llundred and Eighty-Seven'I'housand and Thirty-Seven Dollars and Pour Cents ($187,037.04), plus interest remains unpaid and is due and owing to Gannett. 14. If the Authority is not required to pay Gannett for the services rendered and expenses incurred as set forth above, the Authority will be unjustly enriched at the expense of Gannett. WHEREFORE, Gannett Fleming. Inc. prays this Honorable Court cnterjudgment in its lavor and against Municipal Authority of the Borough of Shenandoah in the sum of One Hundred and Eighty-Seven Thousand and Thirty-Seven Dollars and Four Cents ($187,037.04), plus interest. SUBMITTCD BY Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C. Gunther O. Carrie Attorney For Plaintiff Gannett Fleming, Inc. 1aae~.z AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN ss. Before me, the undersigned authority in and for the County and Commonwealth aforesaid, personally appeared JAMES L. LONG, who being duly sworn according to law, deposes and says that he is Senior Vice President of Gannett Fleming, Inc.; that in such capacity, he is authorized to and does hereby make this Affidavit for and on its behalf; and avers that the facts set forth in Gannett Fleming, Inc. s Complaint are true and correct to the best of his knowledge, information and belief. I realize that if the foregoing is willfully false, I ~n subject to penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Sworn to and Subscribed before me ibis 3e"day of December, 1996. / J~'(MES L. LONG Senior Vice President ~~IJJJ Gannett Fleming, Inc. Notary Public ~~~ ~~ ~~ CERTIFICATE OF SERVICE I, Gunther 0. Carne, Esquire, counsel for Gannett Fleming, Inc., certify that on December 30, 1996, a true and correct copy of the foregoing Complaint was forwarded to opposing counsel by U.S. Mail, postage prepaid, at the addresses below. Municipal Authority of the Borough of Shenandoah 26-28 West Lloyd Street Shenandoah, PA 17976 POWELL, TRACHTMAN, LOGAN, GARBLE, BOWMAN & LOMBARDO, P.C. BY: Gunther O. Carne, Esquire Exhibit A Gannett Fleming CONTRACT FOR PROFESSIONAL SERVICES ---~---~-- -* BY AND BETWEEN THE MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH SHENANDOAH, PENNSYLVANIA AND GANNETT FLEMING, INC. THIS CONTRACT, entered into as of this 3^~I day of S.p{,,,~~,. , 1992, by and between the MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH, Pennsylvania, hereinafter referred to as the "Authority", and GANNETT FLEMING, INC., P. O. Box 1963, Harrisburg, PA 17105-1963, hereinafter referred "Consultant" as a supplement to our November 16, 1989 Contract with the Authority for Engineering Services related to the Authority's Water Treatment Projects (Part I -Preliminary Phase and Part II -Final Design Phase). WHEREAS, the Authority desires the Consultant to provide professional services related to Construction Phase Engineering Services -Shenandoah Water Treatment Plant (Section 3.0 -Construction Management Services, by GANNETT FLEMING, only, and Section 4.0 -Startup Services by GANNETT FLEMING, in conjunction with AMERICAN COMMONWEALTH MANAGEMENT SERVICES COMPANY, INC.) as outlined in the Proposal dated July 27, 1992, attached hereto as Exhibit "A". THEREFORE, the parties hereto do mutually agree as follows: SCOPE OF WORK The Consultant shall perform all the necessary services provided under this contract in a satisfactory and proper manner. The work to be performed is more fully described in the Proposal, which is attached hereto as Exhibit "A". 2. TIME OF PERFORMANCE The services of Consultant are to commence upon signing of this Contract for Professional Services by the Authority and shall be completed on or about August 1, 1994 the anticipated construction and startup completion time for the Water Treatment Plant. 3. COMPENSATION The compensation to be paid to Consultant for the project defined in the scope of work of Construction Management and Startup Services by Gannett Fleming, Inc. shall not exceed FOUR HUNDRED SEVENTY FIVE (1) GonnettFleming TT-IOUSAND DOLLARS (5475,000.00). Consultant will not exceed that maximum cost unless given authorization by the Authority. 4. iyON-APPROPRIATION In the event no funds or insufficient funds are appropriated and budgeted or are otherwise not available in any fiscal year for payments due under this contract, the Authority will immediately notify Consultant of such occurrence and this contract shall terminate on the last day of the fiscal year for which appropriations were received without penalty or expense to the Authority, except as to the payments which funds shall have been appropriated and budgeted or are otherwise available. 5. METHOD OF PAYMENT The Consultant will submit to the Authority invoices on a monthly basis for work completed, and these invoices will be due upon receipt. 6. TERMS AND CONDITIONS This Contract is subject to the following terms and conditions: A. Delays Delays in project completion caused by conditions beyond Consultant's control, such as delinquency of Contractor to complete project per schedule, unfavorable weather conditions, partial or complete plant shutdowns, strikes, floods, or fires, constitute a change of scope. Consultant will notify the Authority of any delays and bill the Authority for any additional work resulting from such at the current schedule of chazges. B. Successors and Assiens The Authority and Consultant each binds himself and his partners, successors, executors, administrators and assigns to the other party of this Contract and to the partners, successors, executors, administrators and assigns of such other party, in respect to all covenants of this Contract; except as above, neither the Authority nor the Consultant shall assign, sublet or transfer his interest in this Contract without the written consent of the other. Nothing herein shall be construed as creating any personal liability on the part of any officer who may be a party hereto, nor shall it be construed as giving any rights or benefits hereunder to anyone other than the Authority and the Consultant. (2) Gannett Fleming 8. 9. INSURANCE The Consultant shall maintain insurance coverage in the following amounts and shall provide a Certificate of Insurance so indicating: Tvoe of Policy Standard Worker's Compensation Employers Liability General Liability Combined Single Limit (Bodily Injury & Automobile Liability Combined Single Limit (Bodily Injury & Prop. Damage) Prop. Damage) INDEMNITY Limits of Liability Statutory $500,000 $1,000,000 Each Occurrence $1,000,000 Each Occurrence Consultant shall indemnify and hold harmless the Authority from and against any and all claims, loss, damage, liability, and expenses, including attorney's fees, arising or claimed to have arisen out of any act or omission of Consultant, its agents or employees, in connection with the performance of this contract. The Authority shall indemnify and hold hazmless the Consultant against any and all third party actions, which may arise from the Authority's failure to timely comply with state drinking water regulations, congent decrees, consent orders and agreements, or other orders issued by government entitles. The Authority acknowledges that the Consultant's ability to effectively carry out its obligations under this contract depends, in part, on the Authority's cooperation and prompt and timely fulfillment of its obligations. The Authority hereby agrees that it shall execute documents and/or take actions as are necessary to enable the Consultant to perform its obligations hereunder. The Authority shall assume liability for any assessed civil, criminal and/or administrative fines or penalties by any regulatory agency during the term of this contract for any and all violations except for violations resulting from any negligent act or omission by the Consultant. SAFETY Consultant's personnel shall provide and use their own safety equipment, such as hard hats, goggles and other items of safety equipment, unless otherwise instructed. If and when any special safety equipment may be required, the Authority shall specify the necessity of this equipment to the Consultant. (3) ' Gannett Fleming IN WITNESS WHEREOF, the Authority and the Consultant have executed this Contract as of the date first above written. ATTEST: Robert A. St -W Senior Project Manager Accepted Date: ~ ~ .1992 ATTEST: Secr GANNETT FLEMING, INC. ~~ / ,~ ~~««~ ;«~ F. James Kni t' Senior Vice Pr sident sand Director Water Resources and Geotechnical Division Municipal Authority of the Borough of Shenandoah % / ~, C ~ ~ ~. Chairman (4) ~ C, r. __ R f. 'll~. ` C i.- - -~ G;~ t. J C,i' ~_ .i: Lyr N , tiii_. ~ ii fi C I I' ~~ i~. U U ~~ 1 o, `P1 i~ . POWELL, TRACH"['MAN, LOGAN, CARRL[; & BOWMAN, P.C. BY: Mark S. McKain, Esyuire Attorney I.D. No.: 54364 367 South Gulph Road King of Prussia, PA 19406 (610) 354-9700 Attorneys for Gannett Fleming, Inc. GANNETT FLEMING, INC. 207 Senate Avenue Camp fii[t, PA 17011 v. MUNICIPAL AUTHORITY OP "ffiE BOROUGH OF SHENANDOAII 26-28 West Lloyd Street Shenandoah, PA 17976 IN 'I'1IL' COURT' OF COMMON PLEAS CUMBERLAND COl1N"I'Y, PA CIVIL ACTION I'RAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly issue a writ of summons in the above-captioned action. .N, LOGAN, P.C. S. McKain, Date: August 15, 1996 POWELL, TRACFITMAN, LOGAN, CAIZRLE & BOWMAN, P.C. BY: Mark S. McKain, Esquire Attorney I.D. No.: 54364 367 South Gulph Road King of Prussia, PA 19406 (610) 354-9700 Attorneys for Gannett Fleming, Inc. GANNETT FLEM[NG, INC. 207 Senate Avenue Camp Hill, PA 17011 IN TFIE COURT' OF COMMON PLEAS CUMBERLAND COUNTY, PA v. MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAIi 26-28 West Lloyd Street Shenandoah, PA 17976 CIVIL ACTION WRIT OF SUMMONS TO: Municipal Authority of the Borough of Shenandoah 26-28 West Lloyd Street Shenandoah,PA 17976 You are hereby notified that Gannett Fleming, Inc. has commenced an action against you. ~4~c ' ;~ / ~ ' ~~ ~, I ~ ( ^% r u. u1-~• c~~_ -_: _!? u-'. u-~: L'_. _YI r ~~ i;) ' LL i . ~i.. - U .U iL j. ¢- U ~1 L~ ^^ ~~I/ C~ ~, ~h 1~ `\J <~J ~~ ~~ m `~ ti ti- ~7' U (~ ~\ 5, r ^I L w qL ^I `:, ;`> ~',ii;'u 'ry ~ 1ii i 1~' i ~! ~,. u~c o 51997bf COHEN & HUNTINGTON, P.C. By: Stephen N. Huntington Attorney No. 02540 By: Nikole M. Davenport Attorney No. 75340 1515 Market Street -Suite 1100 Philadelphia, PA 19102 215-564.1700 \3 GANNETT FLEMING, INC. V. MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH CCP CUMBERLAND COUNTY NO. 96-4639 MEMORANDUM IN RESPONSE TO GANNETT FLEMING, INC.'S PRELIMINARY OBJECTIONS TO SHENANDOAH'S AMENDED PRELIMINARY OBJECTIONS AND IN SUPPORT OF THE BOROUGH OP SHENANDOAH'S AMENDED PRELIMINARY OBJECTIONS I BACKGROUND FACTS A. Defendant is a Municipal Corporation Wltich Conducts All Of Its Business in Schuylkill County. The Municipal Authority of the Borough of Shenandoah ("Shenandoah") is a municipal tv:ucr authority located in Schuylkill Counn~ (Exhibit A, Certification of Goad Corporate Standing). All of its business is conducted in Schuylkill County (Exhibit B, rlftidayit of Joseph "[:utcraii). T;: \S N f1\.S.i3: \02 \uvnmrnndinu.u~rA B. Tltc Relationship Between Plaintiff and Defendant On September 3, 1992, Gannett Fleming, Inc. ("GFI") an engineering firm, and Shenandoah entered into a contract for professional services to be performed in the antstructio~a of the Raven Run Water Treatment facility ("the Project"). All transactions relative to that agreement rook place in Schuylkill County. C. The Schuylkill County Action Against the Two Parties to this Action. On May 3, 1995, the Quandcl Group, Inc. ("Quandcl"), the general contractor on the Project, filed a Complaint in the Schuylkill cotmty Court of Common Pleas, against Shenandoah seeking compensation for cost overruns and delays it experienced on the project (the "Schuylkill County Action"). Shenandoah is represented by Cohen & Huntington, P.C. in the Schuylkill County Action. On July 11, 1995, Shenandoah filed a Writ of Summons to join GFI, the engineer on the Project, and Bognet, Inc. ("Bogner"), the mechanical contractor on the Project, as additional defendants in the Schuylkill County Action. D. The Cumberland County Action Insre;ui of counterclaiming against Shenandoah in the Schuylkill litigation, GFI corontcnced the instant action oi.t August 1G, 199G (eighteen months after ehc Schut'll:ill action was tiled), h}~ filing a Writ of Summons in Cumberland Counts' against Shenandoah. F.:\SN11\5.",,;?\!l2\rurunmmuluutuprf ~ On October 9, 1996, the Cumberland Ccnmry Writ of Sammons was served on Shcnandoah. On January 2, 1997, a Complaint seeking collection of fees claimed to be due GFI was mailed by counsel for Gr'I to corporate counsel for Shcnandoah, Mark Scmanchik, Esquire, who was not of record in this proceeding. Mark Scmanchik filed an Entry of Appearance for Shchandoah in the present ntattcr. The Complaint (Exhibit C) fails to allege any transaction or occurrence which cook place in Cumberland Cotutry and only avers that plaintiffs principal offices arc located in Cumberland County. On March 11, 1997, Cohen & Huntinlnon, PC entered its appearance for Shenandoah and on March 17, 1997 filed Preliminary Objections to GFI's Complaint. II LAW A. This Court May Grant Untimely Preliminary Objections Because GFI Has Not Only Not Been Prejudiced It Hasn't Even Alleged That It Was Prejudiced By The 54 Day Delay in Filing the Preliminary Objections and, Further, there is a Reasonable Explanation for the Delay, a Change of Defense Counsel. 1. The court has Discretion to Grant Tardy Preliminary Objections 'I'hc tlcfcntianrs :trguc that the PreliminarJ• Objections must he tiismisscd bec:uisc thcv arc untintch~, but this court nray, in its discretion, grant prcliminan• objections which ;u•c nor tintch• filed where nc~ passage of time (in this case, Icss than nvo months) has not prejudiced the plaimitl; anti where there is ;ut csplanation titr the delay (in dtis ctsc P.: \S N II \53.3i \0.? \rnnunrmrdnur. uyul substitution of counsel), Pennsylvania Rulc of Civil Procedure 1026(a) states in patt that "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading... ". On its face, the Kulc appears to be an absolute bat• to pleadings filed after the twenty day period, Coutts, however, have held that this is nor the case. The coutt in Weaver v. Martin, 655 A2d 180 (Pa. Super. 1995) held that: "[T]his twenty day filing period has been interpreted liberally and is permissive rather than mandatory." (Citing Francisco v. Ford Motor Cn., 397 pa. Super. 430, 580 A2d 374 [1990]), and that, "[T]he decision of whether an extension of time shall be granted is within the discretion of dae trial court." Id. at 183. In exercising discretion, the test is whether "...the opposing party will ... be prejudiced and justice so requires." Ambrose v. Cross Creek Condominiums, 602 A2d 864 (Pa. Super. 1992) (citing Boarts v. McCord, 511 A2d 204, 207 (Pa. Super. 1986). 2. GPI Was Not and Has Not Alleged that it was Prejudiced by Shenandoah's late Preliminary Objections. Hcrc, Shenandoah's delay in filing the Prclimutary Objections did nat prejudice UFI, as is evidenced by the fret that GFI has never alleged that it was harmed in any way b}' the late tiling of the Prclimin;u•v Objections. Because GI'1 tans not prejutlical; this court should allow Shenantio;th's Prclintinai~r Objections despite their t:u•diness. Er\SNff\5537\02\nvnun'rtnduru.nyrA '}' 3. Justice Requires that Shenandoah's Preliminary Objections be Considered Because the Delay in Filing was Due to a Change in Defense Counsel. Not only has GFI not been prejudiced, justice requires that this court consider Shenandoah's Preliminary Objections. GFI, a co-defendant of Shenandoah in the Schuylkill Action, which was filed eighteen (18) months earlier, failed to file a crossclaim against Shenandoah in that action and, instead, chose to file this second case in a second court, Cumberland County. Mark Scmanchik, Shenandoah's corporate counsel, entered his appearance in the new Cwnbcrland action, and five weeks later assigned the claim to defense counsel, Cohen & Hwttingtott. Within one week of receiving this claim, defense counsel for Shenandoah filed these Preliminary Objections. Pennsylvania precedent states: "`[a] late pleading may be filed if the opposing party is not prejudiced and justice requires." Weaver (emphasis supplied). In this case, justice rcgttires that Shcnandoah's late Preliminary Objections be considered becattsc the tardiness was the result of Shcnandoah's change of counsel. '1'heretin'c, because GFI hats nor suticred any prejudirc by the dcl;n• and because the delay is expl;tined b~~ Shcnandoah's substitution of rounsc•I, the merits of Shcn;utdu;th's 1'rcliminan• Objections should hr a~nsidcrcd. F: \S V //\.58.2,'\0 ~\rnrrnurrtndurrr. m/uf B. Defendant Shenandoah's Preliminary Objections Should Be Granted Because Shenandoah is a Schuylkill County Municipal Corporation and Venue is Only Proper in Schuylkill County Pursuant to Pennsylvania Rule of Civil Procedure 2179(x). GPI's Complaint (Exhibit C) fails to allege a basis for venue in Cumberland County. Because Shenandoah is a corporation under the laws of Pennsylvania (Exhibit A), venue dots not lie in Cumberland Cottnty, but in Schuylkill Cotmty. Pennsylvania Rule of Civil Procedure 2179(x), which sets forth the rcquircnunts for venue in cases against a corporation, provides that: "A personal action against a corporation or similar entity may be brought in acrd only in: (1) the cormty where its registered office or principal place of business is located; (2) a county whcrc it regrilarly conducts business; (3) the county whcrc the cause of action arose; or (4) a county whcrc a transaction or occurrence take place out of which the cause of action arose." 42 Pa. C.S.A. 2179(x) (emphasis added). GFI's Complaint fails to establish that Cumberland County has venue because it fails ro avrt• buts which comph• wieh the requirenunts of Rule 2179, to the extent chat-. Shenandoah's principal place of business is located in Schu~•Ikill County (AI}idar•it attached as Exhibit B); F.': \.ti N 11 ~; 5.',;7\Ol ;rirrmornud~au. mpd 2. Shenandoah regularly conducts all of its business within Schuylkill County (Exhibit B); 3. The cause of action arose out of a constntction project in Schuylkill County (Plaintitl's Complaint, Exhibit C); 4. GFI's Complaint fails to allege any transactions or occurrences which took place in Cumberland County out of which this cause of action arose (Exhibit C). GFI's Complaint alleges that there was a contractual rclationsltip between GFI and Shenandoah. This contract, attached as Exhibit A to GFI's Complaint, lists Gannett Flemings address as P. O. Box 1963, Harrisburg, PA 17105-1963, in Dauphin County, and refers only to the Municipal Authority of the Borough of Shenandoah, Pennsylvania without listing an address, however, the Complaint asserts that Shenandoah's address is 26- 28 W. Lloyd Street, Shenandoah, PA (Exhibit C). In fact, the Borough of Shenandoah's principle place of business is located in Schuylkill County, Shenandoah limits its business dealings to Schuylkill County and dte contract itself was for work performed in Schuylkill County (Exhibit B), so that the venue requirements of 2179(x)(1)-(3) arc not met. 'fo obtain venue in Cunilxrland County, GPI's Complaint alleges at paragraph c» tc char their principal place of business is 207 Sennett Avenue, Camp 1-Lill, I'A 17(11 1, in F.:\SN11\.5.737\02 \uvumrmiAuu,.n~d 7 . Cttmbcrland Cotutry, but fails co allege any transactions or occurrences which took place in that cotmry as required by Rulc 2179(x)(4). Therefore, wtdcr Pennsylvania Rule of Civil Procedure 2179, venue dots not lie in Ctmberland County. GFI, nn page four of its memo, relics on 53 Pa. C. S. § 306(B)(b) of page 4 of its memo, to state that: "Every authority is hereby granted ...the following rights and powers: to sue and be sued, implcad and be intplcadcd, complain and defend in all courts." While the Municipal Authority's Act might allow Shenandoah to be sued in a cotmty other than Schuylkill County, that would only occur if the venue requirements of Pa. R.C.P. 2179(x) were met. Here, as described above, nc~rc is no basis for venue in Cumberland County, and therefore Shcnandoah's Preliminary Objections should be granted. C. Shenandoah's Preliminary Objections should be Granted for the sake of Judicial Economy Because the Schuylkill County Action Initiated Eighteen Months Before this Case, Involves The Same Parties and the Same Schuylkill Construction Project. GFI argues that [heir Complaitu, brought in Cumberland Counn•, should not be dismissed tuulcr the doctrine of lis pcndens based on the Schuylkill Cznuuy action, which was tiled righreen nxm[hs hctin'c the Cuntbcrlanc{ County action and incolvcs both Sheti;uuio;th and GPI as a result of the antsr~ uc[ion project at issue. Even though their F.: \.ti N f f \533-\0?\,u~nrnrm,dnm.mpA brief fails to stuc why this action is so different than the Schuylkill County action, one can suppose that CFI's argtuncnt is bccausc there is an additional parry in the Schuylkill Action (Quandcl), and bccausc GFI seeks collation of money in this claim whcrc it is a plaintiff, as opposed to being sued as a defendant for faulty work in the Schuylkill claim. While the defendants assert that dtc three rcquircmcros of lis pendens (i.c, that the prior cast is the same, the parties arc the same, and the relief requested is the same) arc met, (see Penos Technologies v. Foster Medical Corp., 546 A2d 114, 115 (Pa. Super. 1988), at the very least, the Cumberland County action should be consolidated in Schuylkill County as a matter of judicial economy. The Schuylkill Cotmry Action, which pre-existed this case by eighteen months, will address whether or not GFI is owed the money claimed in the Cumberland County Complaint. To maintain the Cumberland action would mean that two lawsuits addressing identical issues will take place in two different counties at the same time. As a matter of judicial economy, both claims should be heard just once, in the Schuylkill County Court, whcrc venue is proper and whcrc discovery has already begun. III CONCLUSION '1'Liis mart should ronsidcr dctcntl.aut Shcn;uxioah's Preliminary Objections to plaimifl's Complaint bccausc: I'laintitf; GPI, ryas nut prejudiced by rhr Iatc tiling and ha.c not ctcn ;tllcged that it was h;u~nted in :ut}' rya}' by the delay; and fii\SNI1\.5.P3i\02\urrrunrrturLrur.upd ~~ 2. Justice requires that the late pleading be acccpred because the delay was due to Shcnandoah's change of counsel, and was filed within six days of the change. Defendant Shenandoah's Preliminary Objections should be granted and the Ctunberland County cast should be consolidated in Schuylkill Cowtty because: Shenandoah Municipal Water Authority is a corporation which only does business in Schuylkill County, and GFI has failed to allege any transactions or occurrences which took place in Cumberland County, so that Cumberland County does not have venue pursuant to Pa. R.C.P. 2179; and 2. As a maeter of judicial economy, if not lis pendens, the Cumberland County Complaint should be stricken because it was filed eighteen months after the Schuylkill County action which will resolve the issue of payment to GFI which is the basis for the Cumberland County action. COHEN & HUNTINGTON, P.C. i ~~ By. , t, Stephen tint i Nikole M. Davenport Attorneys. for lleR. Shenandoah B: ~~CNf1\5.337\0?\uvnmrmrdrvut.urA ~ 11) EXHIBIT "A" C (1 M M O N W I A I I II (l l P I N N S Y I V A N I A Il f P A R I h1 I N I (l I ; I A I I DECEM(3ER 02. 19)7 TO ALL WHOM THESE PRESENTS SHALL COME. GREETING: I DO HEREBY CERTIFY T(iAT, MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH is duly incorporated under the laws of the Commonwealth of Pennsylvania and remains a subsisting corporation so far as the records of this office show, as of the date herein. IU !I',I IF1 i; i,'7 i;lli ~~. ~ i~,dvr d ' .... ; r ~ '.ho ',~~ ui Ih~~ ~ ~.. . kl, (Iltic_o Li, b~~ dll lrr,u th~~ ddy 'j~ -.tnrl Yrrr IIG, V'.. p;r i!1...... it la ',~ (' ~~ ~~~" i. I Iln I i„ ~.i.vµ•.~~.I' I t. Iii 1'. k L! _--------_- -- - ----- - ------- ----- - -------- ---- -J~ E: EXHIBIT "B" COHEN & HUNTINGTON, P.C. By Stephen N. Huntington Attorney No. 02540 By: Nikole M. Davenport Attorney No. 75340 1515 Market Street - Suite 1100 Philadelphia, PA 19102 215-564-1700 GANNETT PEENING, INC. V. MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH CCP CUMBERLAND CO. NO: 96-4639 Civil APPIDAVIT I, Joseph Tancredi, Chairman Municipal Authority of the Borough of Shenandoah, do hereby swear and attest as follows: The Municipal Authority of the Borough of Shenandoah is incorporated under the laws of Pennsylvania and is a certified Pennsylvania corporation. 2. The Municipal Authority of the Borough of Shenandoah maintains offices exclusively within the Borough of Shenandoah in Schuylkill County. 3. The Mtunicipal Authority of the Borough of Shenandoah holds all of its meetings within dtc Borough of Shenandoah. 4. The Municipal Authority of the P.ortntgh of Shenandoah conducts all of its linancial business within the I;orough of Shenandoah. 5. 'fhe Municipal Authority of the Borough of Shett:uuioah provides water to residents, businesses, and other entities within dtc Borough of Shenandoah, Borough of Gir,u•dvillc, \Vcst \iahanov'I'osvnship, and Union'I'ownship, all of whidt arc located tvidtin Schuelkill Counn•. 6. The Municipal Authority of the Borough of Shenandoah's water filtration facilites arc located in Union Township, Schuylkill County. 7. All customers of the Municipal Authority of the Borough of Shenandoah arc located in Schuylkill County. 8. All real estate owned by the Municipal Authority of the borough of Shenandoah is located within Schuylkill County. 9. All of the officers of the Municipal Authority of tic Borough of Shenandoah reside within Schuylkill County. 10. The Municipal Authority of the Borough of Shenandoah does not conduct business in Cumberland County. BOROUGH OF SHENANDOAH By: O i G~'G7iLv~u.~i4- scphTancrcdi (11/24/97) Sworn to and subscribed before me this ~~~k day of /I:~V~l11~>c= r" , 1997. ~v~-~e~~ NO 'ARY PUBLIC E\S N H\5337\03\allidrvi: ummchik.wld IJolrnal Seal ~ Aniy : [3idv:. DlOlilly PuUl2 PUIISVJIU Schuylkill COIInIV ..h ..Umm~sina F ~::ne:, lui ?_ ; on'. ~ _-.o-- ~.. ~ n l:n. Ex~igir ~~~„ POWELL, TRACITTNIAN, LOGAi\', CARRI..E, BOWMAN & LOM$ARDO, P.C. By: Gunther O. Carrie, Esquire Attorney T.D. No.: 32134 367 South Gulph Road Icing of Prussia, PA 19406 (610) 354-9700 Attorneys for Gannett Fleming, Inc. GANNETT FLEIVIING, INC. , Plaintiff V. MUNICD'AL AUTHORITY OF THE BOROUGH OF SHENANDOAH, Defendant 1+10.96.4639 CIV1Z CIVIL ACTION COMPLAINT Count I -Breach of Contract l . The Plaintiff Gannett Fleming, Inc. ("Gannett") is a corporation duly organized and existing under the laws of the State of Delaware with a principal place of business at 207 Senate Avenue, Camp Hill, Pennsylvania 17011 and at all times material hereto was in the business of providing professional engineering services. 2. The defendant Municipal Authority of the Borough of Shenandoah ("Authority") is a municipal ~aahorih' duly organized and cxistine under the laws of the Commonwealth of Pe.-utsylvnnia h•ith a principal place of busu:ess at 26-28 «'est Lloyd Street, Shenandoah, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA P^:msvlvaniz. 3. On or about September 3, 1992, Gannert and the Authority entered into an agreement ("Engineering Agreement") pursuant to which Gannett was to provide those specific professional engineering services described therein in cotutectlon with the Authority's construction of a new water treatment plant known as the Raven Run Water Treatment Plant and related facilities ("Project") and the Authority was to pay Gannett for basic and additional services rendered and expenses incurred. A true and correct copy of the Engineering Agreement is attached hereto, made a part hereof and referenced as Exhibit "A". 4. Gannett undertook to provide, and did satisfactorily provide, all services required by the Engineering Agreement for which invoices have been submitted. 5. For the Construction Phase Engineering Services provided by Gannett, Gannett has submitted invoices to the Authority totaling Six Hundred and Five Thousand Three Hundred and Twenty-Three Dollars and Fifty Cents ($605,323.50). 6. Gannett has satisfied any and all conditions precedent to its entice ement to receipt of payment from the Authority, 7. The Authority has paid Gannett a total of Four l3undred and Eightoen Thousand Two Hundred and Eighry•Six Dollars and Forty-Six Cents ($418,286.46) as a credit against the invoices submitted for which payment is due. 8. Despite the repeated demand by Gannett, the Authority has refused and continues to refuse to pay fees and expenses totaling One Hundred and Eighty-Seven Thousaztd and Thirty- Seven Dollars and Four Cents ($187,037.04), plus interest on the outstanding amount all of which is now due and o~~ing to Gannett. The .4u:horiry's refusal [o pay dtc sums due.and Drying tirGannen is a b:cach oS ;hz ling>_inee~5nc; Aerecntcut 1'u: whu:h the Au:horin• is liable to Gann_tt for One Hundred and Eighty-Seven Thousand and Thirty-Seven Dollars and Four Cents (S 187,037,04), plus interest on the outstanding amount all of which is now due and owing to Gannett. WHEREFORE, Gannett Fleming, lna prays this Honorable Court enter judgment in its favor end against Municipal Authority of the Borough of Shenandoah in the suns of Onc Hundred and Eighty-Seven Thousand and Thirty-Seven Dollars and Four Cents ($187,037.04), plus interest. Count TT - Unjust Enrichment 10. Plaintiff incorporates by reference Paragraphs 1 - 9 of this Complaint as if set forth herein at length. 11. The fair and reasonable value of the services rendered and expenses incurred by Gannett in the Authority's interest in connection with the Project is Six Hundred and Five Thousand Three Hundred and Twenty-Three Dollars and Fifty Cents (5605,323.50). 12. The Authority has paid Gannett a total of Four hundred and Eighteen Thousand Two Hundred and Eighty-Six Dollars and Forty-Six Cents ($418,286.46} as a credit against the fair and reasonable value of the services rendered and expenses incurred by Gannett for the Authority's benefit in connection with rho Project. 13. A total of One Hundred and Eighty-Seven Thousand and Thirty-Seven Dollars and Four Cents ($1$7,037.04), plus interest remains unpaid and is due and owin; to Gannett, 14. If the Authority is not required to pay Gannett for the services ra.;dered and expenses incurred as Set forth above; the Authority will be unjustly enriched at t':.e expense of CiarL;ett. 1~'IIEI2IFOI2E, Gannett Plemiit~, Istc, prays this honorable Coun cote, judetnent in its :a~•ur ::nc uezir,s Muni: ioal :~tahcuity or vt^_ ilerou~_h of Shenando::'.r is the _,.....tf i )nc. i, ~, ~ ~. Hundred and Eighty-Seven Thousand and Thirty-Seven Dollars and Four Cen;s (S 187,037.04), plus interest. SUBMITTED BY Powell, Trachtmwn, Logan, Carrle, Bowman & Lombardo, P.C. By ~ - Gunther O. Carrle Attorney For Plaintiff Gannett Fleming, Tna :: /l.- COMMONWEALTH OF PENNSYLVANLA ss. COUNTY OF DAUPHIN Before me, the undersigned authority in and for the County and Conunonwealth aforesaid, pcssonally appeared JAMES L. LONG, who being duly sworn according to law, deposes srrd says that he is Senior Vicc President of Gannett Fleming, lnr..; that in such capacity, he is authorized to and does hereby make this Affidavit for and on its behalf; and avers that the fact set forth in C}annett Fleming, Tnc.'s Complaint are true and correct to the best of his knowledge, information and belief. 'I realize that if the fozegoing S.s willfully false, I am subject to penalties of 18 Pa. C.S.A. Section 4904 relating to tntsworn falsification to authoritie J ESL. LONG enior Vice President Gannett Fleming, Inc. Sworn to and Subscribed before methis 3!=~`daY of December,1996. 7 ;, i ii i 1 i 3 ..coTrrrra't'F OF SER DICE I, Gunther 0. Carrie, Esquire, counsel for Gannett Fleming, Inc., certify that on December 30, 1996, a true and correct copy of the foregoing Complaint was forwarded to opposing counsel by U.S. Mail, postage prepaid, at the addresses below. Municipal Au boZg West Lloyd Streetf Shenandoah Shenandoah, PA 17976 y PUWELL, TBA,CgTMAN, LOGAN, GARBLE, BOWMAN & LOMBARDO, P.C. BY: Gunther O. Carrie, Esquire ~ w -~ ,:~~~„_ ^ ~~ 1997 POWGLL, lRACHTMAN, LOGAN, GARBLE, BOWMAN & LOMBABDO, P.C. By: Mark S. McKain, Esquire Attorneys for Plaintiff, Bradford ~. Sandler, Esquire Gannett Fleming, Inc. Attorney LU. Nos. 54364/77463 367 South Gulph Road King of Prussia, PA 19406 (Gl0) 354-9700 GANNET'"I' I~LEMING, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CI V IL ACTION --LA W MUNICIPAL AUTHORITY OP THE BOROUGI I OF SFIENANDOAFI NO. 96-4639 CIVIL ORDER AND NOW, this day of , 1997, upon consideration of Plaintiff, Gannett Fleming. Inc.'s Preliminary Objections to the Amended Preliminary Objections of Defendant, Municipal Authority of the Borough of Shenandoah to Plaintiffs Complaint, and any response thereto, it is hereby ORDERED and DECREED that Gannett Flemings Preliminary Objections to the Amended Preliminary Objections are sustained, and the Municipal Authority of the Borough of Shenandoah is directed to file an answer to the complaint with twenty (20) days from the date of this Order. BY THE COURT: J. 58867.1 POWELL, "I"RAC{l"I'MAN, LOGAN, GARBLE, BOWMAN R LOMBARDO, P.C. By: Mark S. McKain, Esquire Bradford J. Sandler, Esquire Attomcy LD. Nos. 54364/77463 367 South Gulph Road King of Prussia, PA 19406 (610) 354-9700 GANNETT FLEMlNG, INC. v. MUNICIPAL. AUTLIORITY OF THE BOROUGFI OF SLIENANDOAI-i PLAINTIFF, GANNETT FLEMING, INC.'S, MEMORANDUM OF LAW IN SUPPORT OF I'fS PRELIMINARY OBJECTIONS TO THE AMENDED PRELIMINARY OBJECTIONS OF DEFENDANT, MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH TO PLAINTIFF'S COMPLAINT I. BACKGROUND FACTS: On or about September 3, 1992, Gannett Fleming, Inc. ("GFI"), and the Authority of the Borough of Shenandoah (`'Authority") entered into an agreement wherein GFI agreed to provide professional engineering services in connection with the Authority's construction of a new water treatment plant known as the Raven Run Water Treatment Plant and related facilities ("Engineering Agreement"). Pursuant to the Engineering Agreement, the Authority agreed to pay GFI for basic and additional services rendered, as well as expenses incurred. GFI fulfilled its obligations under the Engineering Agreement, and submitted invoices to the Authority totaling $605,323.50. Notwithstanding the fact that GPI satisfied any and all conditions precedent to its entitlement to receive a payment from the Authority, the Authority has only paid $418,286.46 to GFI. Despite the repeated demand by GFI, the Authority has refused and continues to refuse to pay the remaining $187,037.04, plus interest on the Attomcys for Plaintiff, GanneU Fleming, Inc. IN TFIE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA CIVIL ACTION --LAW 96-4639 C SRRC7.1 outstm~ding amount, which is now due and owing to GFI pursuant to the Engineering Agreement. As such, GFI has filed a Complaint in this Honorable Court seeking recovery for the amount it is entitled under the Engineering Agreement. On or about August 1 G, 1996, GFI, commenced the instant action by filing a Writ of Summons against the rlttthority. A copy of the said Writ of Summons is attached to the within Preliminary Objections as Exhibit "A." On or about October 4, 2996, the Writ of Summons was served on tl~e Authority. A copy of the said return of service is attached to the within Preliminary Objections as Exhibit "B." On or about January 2, 1997, the Authority was served with the Complaint in the above- captioned matter. A copy of the said Complaint is attached to the within Preliminary Objections as Exhibit "C: ' Subsequently, on or about March 14, 1997, and after the time period allowable pursuant to both the Pennsylvania and Cumberland County Rules of Civil Procedure, the Authority preliminarily objected to GFI's Complaint. At no time after being served with the Complaint did the Authority request an extension of time to answer or otherwise plead. Tlic Atttlrority preliminarily objects to GFI's Complaint on the grounds that the venue is improper pursuant to 42 Pa. C.S.A. § 2156(a). The Authority further objects on the grounds of pendency of a proper action, since on or about July 11, 1995, Authority filed a Writ to Join GFI as an additional defendant in a matter regarding the construction of the project in which the Quardel Group, Inc., is the plaintiff and the Authority is the defendant ("Quandel Litigation"). GI'1 respectfully submits, and argues below, that the Authority's objections aze without merit, and respectfitlly requests this Honorable Court to overrule the Authority's Amended Preliminary Objections and sustain the within Preliminary Objections. 58867.1 It. nRGUnIrnT: On June G, 1997, GFI tiled Preliminary Objections to the Amended Preliminary Objections ofthe defendant Authority based on four (4) grounds. The first ground for objection is that the r\uthority's preliminary objections failed to conform to the Pennsylvania Rules of Civil Procedure and the Cumberland County Rules of Civil Procedure. GFI's third ground for objection is in the nature of a motion to strike the Authority's Amended Preliminary Objections since the Complaint was properly filed in this Honorable Court, and this Honorable Court is the proper venue for the instant litigation. The second and fourth grounds for objection are that venue is improper in this Fonorable Court. The Authority's Amended Preliminary Objections are groundless as articulated below. A. Since the Authority's Amended Preliminary Objections failed to conform to the Pennsylvania Rules of Civil Procedure and the Cumberland County Rules of Civil Procedure, its Amended Preliminary Objections should be overruled, and GFI's Preliminary Objections should be sustained. The Complaint in the instant action was filed on or about January 2, 1997. Under the Pennsylvania Rules of Civil Procedure and the Cumberland County Rules of Civil Procedure, the Authority was to file an answer or preliminary objections within twenty (20) days of the aforesaid date, or request leave of this Honorable Court. Pa. R.C.P. 1026 (West 1997); C.C. R.C.P. 208-1. At no time after being served with the Complaint did the Authority request an extension of time to answer or otherwise plead. Inasmuch as the Authority failed to file the preliminary objections within the time frame permitted by the Pennsylvania Rules of Civil Procedure and the Cumberland County Rules of Civil Procedure, the Authority's Amended Preliminary Objections to the Complaint are waived. As such, GFI respectfully requests that this sss~~.t Honorable Court sustain the within Preliminary Objections, overrule the Amended Preliminary Objections of the Authority, and enter an Order in the form attacFicd hereto. l3. Since the Authority is a Municipal Authority created pursuant to the Municipal Authority's Act of 1945, venue is proper in this Honorable Court. T'he defendant Authority is a municipal authority created pursuant to a legislative act, namely, the Municipal Authority's Act of 1945. 53 P.S. §301, e1 seq. (West 1997). Rules 2151 through 21 ~9, inclusive, of the Pennsylvania Rules of Civil Procedure apply to voluntary associations, and do not apply to organizations established by legislative mandate or some other authority. Sce Firemens' Pension Fund v. Minnau¢h, 80 D&C 297 (1951). Thus, the defendant Authority may not rely on Pa. R.C.P. 2156 to claim venue is improper, and as such, the Authority's Amended Preliminary Objections should be overtvled. Further, the Authority's Amended Preliminary Objections to the Complaint allege that venue is improper because the Authority is an "unincorporated association as defined by 42 Pa. C.S.A. §2156(a): ' Defendant's Amended Preliminary Objections paragraph 2. Notwithstanding the fact that the Authority's Amended Preliminary Objections contain legal conclusions, the detemtination of which can only be made on the basis of facts not presently before this Honorable Court and in violation of Cumberland County Rules of Civil Procedure 206.4, the Authority is an entity that was created pursuant to statute. 53 P.S. §301, et seq. Section 306B(b) of the Municipal Authority's Act makes clear that the Authority may "sue and be sued, ... , complain and clcfend inn!/courts." Id. § 306B(b) (West 1997) (emphasis added). Therefore, venue is proper in this Honorable Court, and as such, GFI respectfully requests that this Sxxez i Fonorable Court sustain its Preliminary Objections, overrule the Authority's Amended Preliminary Objections, and enter an Order in the form attached hereto. C. Since the Authority has not established the elements necessary to satisfy the pendency of a prior action, and it cannot do so, the Authority's Amended 1'rcliminary Objections should be overruled and CFI's Preliminary Objections should be sustained. 1'hc requirements to establish lis pendrns are that 1) the prior case is the same; 2) the parties arc the same; and 3) the refiefrequested is the same. Penox Technoloeies. Inc. v. Foster Medical Corporation, 546 A.2d 114, 115 (Pa. Super. 1988). A Complaint should only be stricken once all of the elements of lis penden.s are established. See Goodrich - Amram 2d § 25:93 (1996). In paragraphs 9 through 14 of the Authority's Amended Preliminary Objections, the Authority makes reference to an affirmative claim brought by a third party, the Quandel Group, Inc., against fire Authority. The Authority has joined GFI in the Quandel Litigation; however, the Quandel Litigation is not the same as the instant litigation. The parties herein aze not the same as rite Quandel Litigation. The issues in the instant litigation are not the same as in the Quandel Litigation. Lastly, the relief requested in the instant litigation is not the same as the relief requested in the Quandel Litigation. [nclced, the Authority has not and cannot established any of the elements necessary to establish lr.r penclens. Therefore, GFI respectfully requests this Honorable Coutt to overrule the Authority's r\ntended Preliminary Objections, sustain the within preliminary objections, and enter an Order in the form attached hereto. 588G7.I III. CONCLUSION: 1VI IEKEFORE, plaintiff, Gannett Fleming, Inc., respectfully requests that this Honorable Court sustain the within Preliminary Objections and overrule defendants, amended preliminary objections, and enter an Order in the form attached hereto. Respectfully LOGAN, GARBLE, ). P.C. .,, . Mark S. McKain, Esquire Bradford J. Sandler, Esquire Attorneys for plaintiff, Gannett Fleming, Inc. Date: September 29, 1997 58867.1 CERTIFICATE OF SERVICE I, Bradford J. Sandler, Esquire, counsel for Plaintiff, certify that on September 29, 1997, a true and correct copy of the foregoing Plaintiff, Gannett Fleming, Inc.'s, Memorandum of Law in Support of its Preliminary Objections to the Amended Preliminary Objections of Defendant, Municipal Authority of the Borough of Shenandoah to Plaintiff's Complaint was forwarded to opposing counsel by U.S. Mail, postage prepaid, at the addresses below. Roy S. Cohen, Esquire Jamie L. Sandman, Esquire Cohen & Huntington, P.C. 1515 Market Street, l lth Floor Philadelphia, PA 19102 TEL: (215) 564-1700 Counsel for Defendant RRLE, J3Y: ,/ Mazk S. McKain, Esquire Bradford J. Sandler, Esquire ,* sass. t r' `` ` .7- i J w J I \\ ~', Pr~lbl~lu~ fvn, N~. 101 Cumberland In The Court of Common Pieas of fihe County of ~If~ GANNETT FLEMING, INC., Plaintiff p{ Term, 19 VS. MUNICIPAL AUTHORITY OF THE BOROUGH pJo, 96-4639 CIVIL OF SHENANDOAH, Defendant PROTHONOTARY To ............ ........ ................... . .................. v,.µ...1.., Entsr Appe~r~nce for 4M und~nigrwd, to tho above stated cess on b~helf of the Defendant, Municipal Authority of the Borough of Shenandoah January 28 19..9.7.. LIPKIN, MARSHALL, BOHORAD & THORNBURG, P.C. B ..Y....~ ._. ..__.. Amory ................................. Mark Semanchik, Esquire One Norwegian Plaza, Suite 200 P.O. Box 1280 Pottsville, PA 17901 (717) 622-1811 I.D. No. 40484 I I P w ~ I H r C ~ -~ z a Ha • H 7 ~ f U ( Z ~ v W ( ~ ~- ~ F I ~ W _ 0 Z ~ U o 3 O g S ~ i C 5 E" b OC s ow ~ H ~ A a ~ H 7 ~ ~ N Q ~ ~ i~ ~ O d ~ w z '' H W UX H (/] ~ Q v w .~ W v f+ L H Z ro s U ~ og i~ F ~ C F COHEN S HUNTINGTON, P.C. By: Jamie L. sandman, Esquire I.D. No. 70610 1515 Market Street 11th Floor Philadelphia, PA 19102 (215) 564-1700 GANNETT FLEMING, INC. COURT OF COMMON PLEAB Plaintiff, CUMBERLAND COUNTY v. CIVIL ACTION MUNICIPAL AUTHORITY OF THE BOROUGH OF BHENANDOAH NO. 96-4639 CIVIL Defendant. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter Cohen & Huntington, P.C.~s appearance on behalf of Defendant Municipal Authority of the Borough of Shenandoah in the above-captioned matter. COHEN & HUNTINGTON, P.C. By: ~e~rh:~~ ~... ~~,3~acs. Ja ie L. Ban man, Esquire Cohen & Huntington, P.C. 1515 Market Street, 11th Floor Philadelphia, PA 19102 Attorneys for Defendant Municipal Authority of the Borough of Shenandoah CERTIFICATE OF SERVICE I, JAMIE L. SANDMAN, ESQUIRE, hereby certify that a true and correct copy of the foregoing Entry of Appearance was served upon the following via First Class Mail on March 14, 1997: Gunther 0. Carrle, Esquire Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C. 367 South Gulph Road King of Prussia, PA 19406 Mark Semanchik, Esquire Lipkin, Marshall, Bohoard & Thornburg, P.C. P.O. 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',n57 C° SEA VI (C' J),. `.~~ i., . i RQ H[ .• ^_ ~OJii C7C=:;~;,,C:: 1.=.r :T.L'J°.'=-..=i,=~..::U`."~~ 'c:1~CV~'1:i,1C: l,. i ,.~ Gannett Fleming, Inc. Municipal Authority of the Borough of Shenandoah ' tic 96-4639 Civil Term __ Ycw, n. gu,Gr ~n ;44~ :c^ T. c __ _ O. C^r=__. _ti7 COZ'Y'= _--- -- _==I L=~= :_ _~_ c: S~huy 7 k; 1 1 ~ C~ "? :~ ~- , _. '.'r=~ ,~ T~ i ~/; ..~ Ycw: __ w;C_. '=~ __ --== b~ -_'-- ~r ._~: ~ _ ^~ c: _--_ _°e -~.v- ei :w: ~ __ _.~_.._ o= C~ S.v:C' _ ~_-_.: v- ti _ ' i,. ' ,. i -. C..7. = - 5 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sutmitted >n duplicate) Please list the within matter for the next Argunent Court. (Plaintiff) vs. (Defendant) ~_ 96-4639 Civil Law 19 96 1. State matter to be argued (i.e., plaintiff's motion for new trial. defendant's damster to complaint, etc.): Preliminary Objections 2. Identify counsel who will argue case: (a) for plaintiff: piark S. McKain, Esquire AddrPSS: Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C. 367 S. Gulph Road, King of Prussia, PA 19406 (610) 354-9700 (b) for defendant: Roy S. Cohen, Esquire Address: Cohen & Huntington, P.C. 1515 Market Street, 11th Floor, Philadelphia, PA 19102 TO THE PROTHONOTARY OF CUMBERLAND COUNTY: CAPTION OF CASE (entire caption must be stated in full) Gannett Fleming, Inc. Municipal Authority of the Borough of Shenandoah 3. Z will notify all parties in writing within two days that this case has been Listed for aTM^.*+Prt. 4. Argunent Court Date: December 10, 1 7 Dated: ~I~-~1a7 / ' Attorney for Gannett em ng, nc. _. :,; .. ;,: ~.. ~, ,: , - ~~- ~: ~_ - ~._ ,__ (J p• J •J g a -,~ Q a. o II NOTICE TO PLEAD TO: De You are service entered Attomey for POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By: Mark S. McKain, Esquire Attorney I.D. No. 54364 367 South Gulph Road King of Prussia, PA 19406 (610) 354-9700 Attorneys for Plaintiff y no i~ied to plead to the enclosed ijec i ns wit 'n (20) days from or efault~i dgment may be t yo . ^ ~~ ~` ~~ ~. / \ GANNETT FLEMING, INC. v. MUNICIPAL AUTHORITY OF THE OF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION --LAW NO. 96-4639 CIVIL PLAINTIFF'S PRELIMINARY OBJECTIONS TO THE PRELIMINARY OBJECTIONS OF DEFENDANT, MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH TO PLAINTIFF'S COMPLAINT Plaintiff, Gannett Fleming, Inc. ("GFI"), by its counsel, Powell, Trachtman, Logan, Carne, Bowman & Lombardo, P.C., hereby raises the following preliminary objections to the preliminary objections of defendant, Municipal Authority of the Borough of Shenandoah (the "Municipal Authority") for the following reasons: I. Plaintiff's Motion to Strike the Municipal Authority's Preliminary Objections for Failure to Conform to Law or Rule of Court. On or about August 16, 1996, GFI commenced the instant action by filing a writ of summons against the Municipal Authority. A copy of the writ of summons is attached hereto as Exhibit "A." 44963.1 2. On or about October 9, 1996, the writ of summons was served on the Municipal Authority. A copy of the return of service is attached hereto as Exhibit "B." On or about January 2, 1997, the Municipal Authority was served with the complaint. A copy of the complaint is attached hereto as Exhibit "C" 4. At no time after being served with the complaint did the Municipal Authority request an extension of time to answer or otherwise file a responsive pleading to the complaint. 5. Pursuant to Pennsylvania Rule of Civil Procedure 1026, the Municipal Authority was to file an answer or preliminary objections within twenty (20) days of being served with the complaint. 6. The Municipal Authority's preliminary objections to the complaint are waived inasmuch as the Municipal Authority failed to file said preliminary objections within the time permitted by the Pennsylvania Rules of Civil Procedure. WHEREFORE, plaintiff, Gannett Fleming, Inc., respectfully requests that the preliminary objections of defendant, Municipal Authority of the Borough of Shenandoah, be stricken and dismissed. II. Plaintiff s Motion to Strike the Municipal Authority's Preliminary Objections Pursuant to Pa. RCiv.P. 1028(a)(1) for Legal Insufficiency (Demurrer). In paragraphs I through 8 of the Municipal Authority's preliminary objections to the complaint, the Municipal Authority alleges that venue is improper because the Municipal Authority is e.n "incorporated association as defined by 42 Pa. C.S.A. §2]51." 8. The Municipal Authority contends that as an "incorporated association," and pursuant to 42 Pa. C.S.A. §2156(a) that an action against the Municipal Authority may only be brought in the county where the Municipal Authority regularly conducts business, or in the 44963.1 county where the cause of action arose or in a county where a transaction or occurrence took place out of which the cause of action arose. See paragraphs 2 and 3 of the Municipal Authority's preliminary objections. 9. Pennsylvania Rule of Civil Procedure 2151 applies to "actions" brought against "associations." Pa.R.Civ. P. 2151 defines an "action" as follows: [Ajny civil action or proceeding at law or in equity brought in or appealed to any court which is subject to these rules; Pa.R.Civ. P. 2151 defines an "association" as follows: [Ajn unincorporated association conducting any business or engaging in any activity of any nature whether for profit or otherwise under a common name, but does not mean an incorporated association, general partnership, limited partnership, registered partnership, partnership association, joint stock company or similar association. (Emphasis added.) 10. As an "incorporated association," the Municipal Authority cannot rely on Pa.R.Civ. P. 2156 to claim venue is improper. WHEREFORE, plaintiff, Gannett Fleming, Inc., respectfully requests that this Honorable Court sustain plaintiff's preliminary objection and strike the Municipal Authority's preliminary objections to the complaint. III. Plaintiff's Motion to Strike the Municipal Authority's Preliminary Objections Pursuant to Pa. R.Civ.P. 1028(a)(1) for Failure to File Complaint in Proper Venue. 11. In paragraphs 1 through 8 of the Municipal Authority's preliminary objections to the complaint, the Municipal Authority alleges that venue is improper because the Municipal Authority is an "incorporated association as defined by 42 Pa. C.S.A. §2151." 44963.1 12. Paragraphs 1 through 8 of the Municipal Authority's preliminary objections contain legal conclusions, the determination of which can only be made on the basis of facts not presently before this Court. 13. Moreover, the Municipal Authority is an entity that was created pursuant to the Municipality Authorities Act of 1945, 53 P.S. §301 et seq. 14. In accordance with Section 306 B(b) of the Municipality Authorities Act, the Municipal Authority may "sue and be sued, in plead and be in plead, complain and defend in all courts." Therefore, venue is proper in Cumberland County. WHEREFORE, plaintiff, Gannett Fleming, Inc., respectfully requests that this Honorable Court sustain plaintiffs preliminary objections and strike the Municipal Authority's preliminary objections to the complaint, or in the alternative, require the parties to conduct fact discovery in order to aid the court in reaching a decision on the preliminary objections. N. Plaintiff's Motion to Strike the Municipal Authority's Preliminary Objections Pursuant to Pa. RCiv.P. 1028(a)(6) Regarding Pendency of Prior Action for Legal Insufficiency (Demurrer). I5. At paragraphs 9 through I S of its preliminary objections, the Municipal Authority raises the issue of the pendency of a prior action as the basis for this Honorable Court to dismiss GFI's complaint against the Municipal Authority. 16. Paragraphs 9 through 15 of the Municipal Authority's preliminary objections bring before this Court matters which are not properly plead and, more to the point, not plead at all. 44963.1 17. The instant matter involves an affirmative fee claim brought by GFI to recover monies from the Municipal Authority for engineering services GFI provided in connection with the construction of a water treatment plant. 18. In paragraphs 9 through 1 S of the preliminary objections, the Municipal Authority makes reference to an affirmative claim brought by a third party, The Quandel Group, Inc., against the Municipal Authority (the "Quandel litigation"). 19. The averments set forth in paragraphs 9 through 15 of the Municipal Authority's preliminary objections are legally insufficient. The existence of the Quandel litigation has no bearing on GFI's affirmative right to bring the instant claim in against the Municipal Authority. There are no facts of record that indicate that GFI's fee claim should or must be litigated as part of the Quandel litigation. WHEREFORE, plaintiff, Gannett Fleming, Inc., respectfully requests that this Honorable Court sustain plaintiff s preliminary objections and strike the Municipal Authority's preliminary objections to the complaint, or in the alternative, require the parties to conduct fact discovery in order to aid the court in reaching a decision on the preliminary objections. POWELL, CHTM , LOGAN, GARBLE, BOWMAN OMB 0, P.C. Mark S. McKain, Esquire Date: April 1, 1997 44963.1 VERIFICATION I, Mark S. McKain, Esquire, counsel for Plaintiff, hereby state that the averments contained in the foregoing Plaintiffs Preliminary Objections to the Preliminary Objections of Defendant, Municipal Authority of the Borough of Shenandoah to Plaintiff s Complaint are true and correct to the best of my knowledge, inFormation and belief and that I make this Verification subject to the penalties of 18 Pa. C.S.A. §4904 Date: April 1, 1997 to un m falsification to authorities. ~~`---~. S. McKain, Esquire 44963.1 CERTIFICATE OF SERVICE I, Mark S. McKain, Esquire, counsel for Plaintiff, certify that on April 1, 1997, a true and correct copy of the foregoing Plaintiff s Preliminary Objections to the Preliminary Objections of Defendant, Municipal Authority of the Borough of Shenandoah to Plaintiffs Complaint was forwarded to opposing counsel by U.S. Mail, postage prepaid, at the addresses below. Roy S. Cohen, Esquire Jamie L. Sandman, Esquire Cohen & Huntington, P.C. 1515 Market Street, 11th Floor Philadelphia, PA 19102 TEL: (215) 564-1700 Counsel for Defendant LOGAN, GARBLE, ), P.C. BY: S. McKain, Esquire 44963.1 Exhibit A POWELL, TRACHTMAN, LOGAN, GARBLE & BOWMAN, P.C. BY: Mark S. McKain, Esquire Attorney I.D. No.: 54364 367 South Gulph Road King of Prussia, PA 19406 (610) 354-9700 Attorneys for Gannett Fleming, Inc. GANNETT FLEMING, INC. 207 Senate Avenue Camp Hill, FA 17011 v. MUNICIPAL AUTHORITY OF THE BOROUGH OFSHENANDOAH 26-28 West Lloyd Street Shenandoah, PA 17976 ~It>r1r~~( ~.z.e~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. ~'6 - (c 3 ~ ~~L-~- C?VIL ACTION PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: ~~ ~ c _~ ~, ,~ -n Kindly issue a writ of summons in the above-captioned action. ~ ;P = =i ~ :n ~~ POWEL RAC MAN, LOGAN, °'__ `=' [: ~ .rl azk S. McKain, Esquire Date: August 15,1996 POWELL, TRACHTMAN, LOGAN, GARBLE & BOWMAN, P.C. BY: Mazk S. McKain, Esquire Attorney I.D. No.: 54364 367 South Gulph Road King of Prussia, PA 19406 (610) 354-9700 Attorneys for Gannett Fleming, Inc. GANNETT FLEMING, INC. 207 Senate Avenue Camp Hill, PA 17011 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. MUNICIPAL AUTHORITY OF THE BOROUGH OFSHENANDOAH 26-28 West Lloyd Street Shenandoah, PA 17976 CIVIL ACTION WRIT OF SUMMONS T0: Municipal Authority of the Borough of Shenandoah 26-28 West Lloyd Street Shenandoah, PA 17976 You aze hereby notified that Gannett Fleming, Inc. has commenced an action against you. ~a~-~ 0 ~~~-l~ `.~-- ut, Prot ono ary TRUE COPY FROM RECORD In Testimony whereof, i here unto set my hand a- t,~~--~~,I of ~y~f~ou t C`rllsle. Pa 1:•::.- d f 19 ~ Exhibit B ?~~~/-~~ uCi 24 1996 S;i F:P?F'~"5 P. F`;'IIi:N - ~~_~? '~- :~~111N-'; CALF: PIu: 1'J''!~-04E3' F COMi".OPIWF:Ai,CI: OF' F~:NN~Y! Vh'IIA: COUNTY OF ~Ui1yF:it~A^I=~ Gkilll~•:TT F'LR:`l:clli Ii•IC V'.:. P1UNiCi:=p1, ar:'-;i'i .:J-:"lA:[.C~rcr 7•h~T~s ,:1_ae =h=riie. '•.`,: :e. .._y =corn ~__..-- - '~ t.^ is W. _~!/3, tl".3C hg TaL= 3 ~1!1q-G: ==3.=' 3rt']r-/7.U:.'j' :.. '~._ 'dl `.~1-, ~I ^3:^arj ~JG~arli_gr:T. :C W1 :1 !'1 L!PIfLSr A1. 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HPH6ING fi TRUE nF'u ~TTESTF.D CDPY TO 1 LDRETTA DALLAZIA (SUFEP.VISpRI ON cia n1NU iFAL AUisaRlir SEP TEHSEP D5~ 1440 BDRDUFH pF SHEHAlIDOAH nt 2115 PH SHF.NANDDAHr PA ----------------------------------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------------------------------------------- ~ T // $RDRN qH0 SUB5rPi6E0 AEFGPE ME TFIS __.../_______ Ei, ANSALxS Gl~ """' ___ _; ____________________________ OTHONOTPPY ~4`j~E'!iTY pHEO FF) ~C!/1Lf../1_ ~ / /'1~~~"~-~-ice ______ ___ ______________________ _______________ (SHEPLFF OF pEHUYLHLLL COUNTY! ___________________________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________________________ ' EHL - OF - RETUPN (45-40.74: Exhibit C POWELL, TRACHTMAN, LOGAN, CAI2RLE, BOWMAN & LOMBARDO, P.C. By: Gunther O. Carrlc, Esquire Attorney I.D. No.: 32134 367 South Gulph Road King of Prussia, PA 19406 (610)354-9700 Attorneys for Gannett Fleming, Inc. GANNETT FLENIING, INC. , Plaintiff V. MUNICIPAL AUTHORI'£Y OF THE BOROUGH OF SHENANDOAA, Defendant IN TIIE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA N0.96-4639 CIVIL CIVIL ACTION ~_> ,D ~ ~ -n f-. ~. iri~~ CObIPLAINT f ~~ r ~ ('J Count I -Breach of Contract r ~ -' ~"~ -- ~' -r _` ;c-, ern _, .. ~ i The Plaintiff Gannett Fleming, Inc. ("Gannett") is a corporation dulyoFgaru'~ed and existing under the laws of the State of Delaware with a principal place of business at 207 Senate Avenue, Camp Hill, Pennsylvania 17011 and at all times material hereto was in the business of providing professional engineering services. 2. The defendant Municipal Authority of the Borough of Shenandoah ("Authority") is a municipal authority duly organized and existing tinder the laws of the Commonwealth of Pennsylvania with a principal place of business at 26-28 Nest Lloyd Street, Shenandoah, Pennsylvania. 3. On or about September 3, 1992, Gannett and the Authority entered into an agreement ("Engineering Agreement") pursuant to which Gannett was to provide those specific professional engineering services described therein in connection with the Authority's constmction of a new water treatment plant known as the Raven Run Water Treatment Plant and related facilities ("Project") and the Authority was to pay Gannett for basic and additional services rendered and expenses incurred. A true and correct copy of the Engineering Agreement is attached hereto, made a part hereof and referenced as Exhibit "A". 4. Gannett undertook to provide, and did satisfactorily provide, all services required by the Engineering Agreement for which invoices have been submitted. For the Construction Phase Engineering Services provided by Gannett, Gannett has submitted invoices to the Authority totaling Six Hundred and Five Thousand Three Hundred and Twenty-Three Dollars and Fifty Cents ($605,323.50). 6. Gannett has satisfied any and all conditions precedent to its entitlement to receipt of payment from the Authority. The Authority has paid Gannett a total of Four Hundred and Eighteen Thousand Two Hundred and Eighty-Six Dollars and Forty-Six Cents ($418,286.46) as a credit against the invoices submitted for which payment is due. 8. Despite the repeated demand by Gannett, the Authority has refitsed and continues to refuse to pay fees and expenses totaling One Hundred and Eighty-Seven Thousand and Thirty- Seven Dollars and Four Cents ($187,037.04), plus interest on the outstanding amount all of which is now due and owing to Gannett. 9. The Authority's refusal to pay the sums due and owing to Gannett is a breach of the Engineering Agreement for which the Authority is liable to Gannett for One Hundred and 34499.2 Eighty-Seven Thousand and Thirty-Seven Dollars and Four Cents ($187,037.04), plus interest on the outstanding amount all of which is now due and owing to Gannett. WHEREFORE, Gannett Fleming, Inc. prays this Honorable Court enterjudgment in its favor and against Municipal Authority of the Borough of Shenandoah in the sum of One Hundred and Eighty-Seven Thousand and Thirty-Seven Dollars and Four Cents ($187,037.04), plus interest. Count II -Unjust Enrichment 10. Plaintiff incorporates by reference Paragraphs 1 - 9 of this Complaint as if set forth herein at length. 11. The fair and reasonable value of the services rendered and expenses incurred by Gannett in the Authority's interest in connection with the Project is Six Hundred and Five Thousand Three Hundred and Twenty-Three Dollars and Fifty Cents ($605,323.50). 12. The Authority has paid Gannett a total of Four Hundred and Eighteen Thousand Two Hundred and Eighty-Six Dollars and Forty-Six Cents ($4] 8,286.46) as a credit against the fair and reasonable value of the services rendered and expenses incurred by Gannett for the Authority's benefit in connection with the Project. 13. A total of One Hundred and Eighty-Seven Thousand and Thirty-Seven Dollars and Four Cents ($187,037.04), plus interest remains unpaid and is due and owing to Gannett. 14. If the Authority is not required to pay Gannett for the services rendered and expenses incurred asset forth above, the Authority will be unjustly enriched at the expense of Gannett. WHEREFORE, Gannett Fleming, Inc. prays this Honorable Court enterjudgment in its favor and against Municipal Authority of the Borough of Shenandoah in the sum of One 34499.2 Hundred and Eighty-Seven Thousand and Thirty-Seven Dollars and Four Cents ($187,037.04), plus interest. SUBMITTED BY Powcll, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C. ~' ' ~ V `~ ~ By Gunther O. Carrle Attorney For Plaintiff Gannett Fleming, Inc. 34499.2 AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN ss. Before me, the undersigned authority in and for the County and Commonwealth aforesaid, personally appeazed JAMES L. LONG, who being duly sworn according to law, deposes and says that he is Senior Vice President of Gannett Fleming, Inc.; that in such capacity, he is authorized to and does hereby make this Affidavit for and on its behalf; and avers that the facts set forth in Gannett Fleming, Inc.'s Complaint aze true and correct to the best of his knowledge, information and belief. I realize that if the foregoing is willfully false, I am subject to penalties of 18 Pa. C.S.A. Section 4904 relating to tmsworn falsification to authorities Cr-wlt. J MES L. LONG Senior Vice President ~~~JJJ Gannett Fleming, Inc. Sworn to and Subscribed before me this~o"rlay of December, 1996. ~ ~ ~ No li ._ _ ~ I ~ ~ - - ,~. CERTIFICATE OF SERVICE I, Gunther 0. Carne, Esquire, counsel for Gannett Fleming, Inc., certify that on December 30, 1996, a true and correct copy of the foregoing Complaint was forwazded to opposing counsel by U.S. Mail, postage prepaid, at the addresses below. Municipal Authority of the Borough of Shenandoah 26-28 1Vest Lloyd Street Shenandoah, PA 17976 POWELL, TRACHTMAN, LOGAN, GARBLE, BOWMAN & LOMBARDO, P.C. BY: Gunther O. Carne, Esquire EXHIBIT "A" Gannett Fleming /~s,,Q~S -2 ;~o~ /1 J.~.`g.rJ J~ CONTRACT' FOR PROFESSIONAL SERVICES --~-- - ~--" BY AND BETWEEN THE MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH SHENANDOAH, PENNSYLVANIA AND GANNETT PEENING, INC. i THIS CONTRACT, entered into as of this 3.d day of San+•~_, 1992, by and between the MUNICIPALAUTHORITY OF THE BOROUGH OF SHENANDOAH, Pennsylvania, hereinafter referred to as the "Authority", and GANNETT PEENING, INC., P. O. Box 1963, Hazrisburg, PA 17105-1963, hereinafter referred "Consultant" as a supplement to our November 16, 1989 Contract with the Authority for Engineering Services related to the Authority's Water Treatment Projects (Part I -Preliminary Phase and Pazt II -Final Design Phase). WHEREAS, the Authority desires the Consultant to provide professional services related to Construction Phase Engineering Services -Shenandoah Water Treatment Plant (Section 3.0 - Constmction Management Services, by GANNETT PEENING, only, and Section 4.0 - Staztup Services by GANNETT PEENING, in conjunction with AMERICAN COMMONWEALTH MANAGEMENT SERVICES COMPANY, INC.) as outlined in the Proposal dated July 27, 1992, attached hereto as Exhibit "A". THEREFORE, the parties hereto do mutually agree as follows: 1. SCOPE OF WORK The Consultant shall perform all the necessary services provided under this contract in a satisfactory and proper manner. The work to be performed is more fully described in the Proposal, which is attached hereto as Exhibit "A". 2. TIME OF PERFORMANCE The services of Consultant are to commence upon signing of this Contract for Professional Services by the Authority and shall be completed on or about August 1, 1994 the anticipated constmction and startup completion tame for the Water Treatment Plant. 3. COMPENSATION The compensation to be paid to Consultant for the project defined in the scope of work of Construction Management and Startup Services by Gannett Fleming, Inc. shall not exceed FOUR HUNDRED SEVENTY FIVE (1) Gannett Fleming THOUSAND DOLLARS (5475,000.00). Consultant will not exceed that maximum cost unless given authorization by the Authority. 4. NON-APPROPRIATION In the event no funds or insufficient funds are appropriated and budgeted or are otherwise not available in any fiscal year for payments due under this contract, the Authority will immediately notify Consultant of such occurrence and this contract shall terminate on the last day of the fiscal yeaz for which appropriations were received without penalty or expense to the Authority, except as to the payments which funds shall have been appropriated and budgeted or are otherwise available. $, METHOD OF PAYMENT The Consultant will submit to the Authority invoices on a monthly basis for work completed, and these invoices will be due upon receipt. 6. TERMS AND CONDITIONS This Contract is subject to the following terms and conditions: A. Delays Delays in project completion caused by conditions beyond Consultant's control, such as delinquency of Contractor to complete project per schedule, unfavorable weather conditions, partial or complete plant shutdowns, strikes, floods, or fires, constitute a change of scope. Consultant will notify the Authority of any delays and bill the Authority for any additional work resulting from such at the current schedule of charges. B. Successors and Assiens The Authority and Consultant each binds himself and his partners, successors, executors, administrators and assigns to the other party of this Contract and to the partners, successors, executors, administrators and assigns of such other party, in respect to all covenants of this Contract; except as above, neither the Authority nor the Consultant shall assign, sublet or transfer his interest in this Contract without the written consent of the other. Nothing herein shall be construed as creating any personal liability on the part of any officer who may be a party hereto, nor shall it be construed as giving any rights or benefits hereunder to anyone other than the Authority and the Consultant. (2) Gannett Fleming 7 8. 9. INSURANCE The Consultant shall maintain insurance coverage in the following amounts and shall provide a Certificate of Insurance so indicating: Twe of Policy Standard Worker's Compensation Employers Liability General Liability Combined Single Limit (Bodily Injury & Prop. Damage) Automobile Liability Combined Single Limit (Bodily Injury & Prop. Damage) INDEMNITY Limits of Liabiliri Statutory $500,000 $1,000,000 Each Occurrence $1,000,000 Each Occurrence Consultant shall indemnify and hold harmless the Authority from and against any and all claitns, loss, damage, liability, and expenses, including attorney's fees, arising or claimed to have arisen out of any act or omission of Consultant, its agents or employees, in connection with the performance of this contract. The Authority shall indemnify and hold harmless the Consultant against any and all third party actions, which may arise from the Authority's failure to timely comply with state drinking water regulations, congent decrees, consent orders and agreements, or other orders issued by government entitles. The Authority acknowledges that the Consultant's ability to effectively carry out its obligations under this contract depends, in part, on the Authority's cooperation and prompt and timely fulfillment of its obligations. The Authority hereby agrees that it shall execute documents and/or take actions as are necessary to enable the Consultant to perform its obligations hereunder. The Authority shall assume liability for any assessed civil, criminal and/or administrative fines or penalties by any regulatory agency during the term of this contract for any and all violations except for violations resulting from any negligent act or omission by the Consultant. SAFETY Consultant's personnel shall provide and use their own safety equipment, such as hard hats, goggles and other items of safety equipment, unless otherwise instructed. If and when any special safety equipment may be required, the Authority shall specify the necessity of this equipment to the Consultant. (3) Gonnett Fleming IN WITNESS WHEREOF, the Authority and the Consultant have executed this Contract as of the date first above written. ATTEST: Robert A. St Senior Project Manager GANNETT FLEMING, INC. ~' u;~tll~' .' F. Jame Kni t' Senior Vice Pr sident ~~d Director Water Resources and Geotechnical Division Accepted Date: _ ~ 1992 ATTEST: Secr ,,.,...,.M,-e...,. Municipal Authority of the Borough of Shenandoah / / Chairman (4) r C> y_1' .7 lug; U .:. i Q~ _jQ L:_ i ~ _ .. ,.c fir; LLIL. I ~_. J, CL `. `- CL' .? ~" ci e 4 U v f.,• G! ' j .J COHEN & HUNTINGTON, P.C. Attorneyo for Defendant BY: Jamie L. Sandman, Esquire Municipal Authority of the Attorney I.D. No. 70610 Borough of Shenandoah 1515 Market Street Eleventh Floor Philadelphia, PA 19102 (215) 564-1700 GANNETT FLEMING, INC. COURT OF COMMON PLEAS . CUMBERLAND COUNTY Plaintiff, ~, CZVIL ACTZON MUNICIPAL AUTHORITY OF THE . BOROUGH OF SHENANDOAH N0. 96-4639 CIVIL Defendant. DEFENDANT, MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH'S RESPONSE TO PLAINTIFF, GANNETT FLEMING,__INC._S_PRELIMlNARY_OBJECTION@ Defendant, Municipal Authority of Lhe liorouyh ul Shenandoah ("Shenandoah"), by and throi:gh it:; un~i~•r:.iym•ri ~?nuirn~I, hen~l~~y ~'ilca the following response to the Prelimin.iry r71,j.~r•r.i~,n, ul Plaint ill, CannetC Fleming, Inc. ("GFI"), to eh~: Nnenrk~d Prc~limin.:uy Objr,~cCions of Shenandoah and, in suppoi:C eh~:rac,(, avers a^ follows: 1. AdmiCted. 2. AdmiCe~~d. 3. Admitted in parr., Deni~rd in p++rt It i:; admiu_~:d that a coPY of the Complaint is atCnch~;d to ~tPi':, I°r~•liwina:y ubjecr.ions as Gr.hibi.t "C." It is specifically d~~nieci t hac :3hen;:ui~1~~;ih wa:; :served with the Complaint on or about January ?, 1557. k:y way of IurCher answer, Lhe Certificate of Se::vice Mates that rh~~ Complaint. wa:; nuiiled to counsel for Shenandoah at 26-:?Ei west. 1,l~,yd Sr:r~~nr, Sh~uian~lo;ih, PA 7.79'16. The CerCificate of Service i:, ~•rrnm~~w;; in t l:.i~. ~ h~~ nr3r3res;; listed is not Lhe address for coup:;r,l for ,tihruwn~3~~,~h .ui~l, mc~n~over, there was no counsel nE record for Shen~uul~:~ah iii ~ li~• t inu, t.h~~ L'omplaint was filed. 4. Admitted in part. Denied in part. It is admitted that Shenandoah filed its Preliminary Objections on or about March 14, 1997. i ~, It is specifically denied that this filing was beyond the time period ' permissible pursuant to the Pennsylvania Rules of Civil Procedure. Ij 5. Denied. Although counsel for Shenandoah ultimately received f a copy of the Complaint in this matter, it is denied that service was i~ i ever effectuated pursuant to the Pennsylvania Rules of Civil Proce ure. ~ 6. Denied. Paragraph 6 constitutes a conclusion of law to which i ~ no response is required. ! 7. Denied. Shenandoah's Preliminary Objections cannot be deemed to be untimely in that proper service was never effectuated to commence the running of any time frame found to be applicable pursuant to the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendant, Municipal Authority of the Borough of Shenandoah, respectfully requests this Honorable Court to deny Gannett Fleming, Inc.'s Preliminary Objections to the Amended Preliminary Objections of the Municipal Authority of the Borough of Shenandoah. g. Denied. Defendant's Preliminary Objections is a writing the contents of which speak for itself. Any attempt by the Plaintiff to characterize the writing is specifically denied. 9-I1. Denied. Paragraphs 9 through 11 constitute conclusions of law to which no response is required. WHEREFORE, Defendant, Municipal Authority of the Borough of Shenandoah, respectfully requests this Honorable Court to deny Gannett Fleming, Inc.'s Preliminary Objections to the Amended Preliminary Objections of the Municipal Authority of the Borough of Shenandoah. 12. Denied. Paragraphs 1 through H of Sh~•n~ti:']''•'I'~`t I''~''liminary Objections to the Complaint is a writing tln~ c~~ni "tit :: c.! wlti~~h :;p°ak Cor itself. Any attempt by the Plaintiff to ch~u~n•t"t iv+ tlw waiting is specifically denied. 13-15. Denied. Paragraphs ].3-15 cunatitut~~ ~~-tt•Itt:;ions of law to which no response is reyuit'ec]. WHEREFORE, Defendant, Munir•il,.,l Auth~,rity ~~! t-h~= Borough of Shenandoah, respectfully reyu~~:;t-:, t hi:. fl~~m~a,J,l~• t''~~trt to deny Gannett Fleming, Inc.'s Preliminary t~l+I"''!'"~"` !" tln' At°`:nded Preliminary Objections of the Municipal Aut hen it y "1 ' 1i" ~!"""''!}' of Shenandoah. 16. Denied. Pa ragrtinpha `~ ~ ht~,u~th t4 ~~t :~h~~n.uuloalt's Preliminary Objections to the Complaint. in ,t wt '~' '~''~ ~ !"' ""~ """' "! which speak for itself. Any attempt by th~~ I'I,~!n! :!! ' ~ ''~'~" "'t"''~" the writing is specifically denied. 17. Denied. Paragraph 1'~ ca~n:u ti ~a"~~ ~' '''nu:•ltte;ion of law to which no response is required. 18. Admitted. 19. Admitted in pare. U"tt1"'1 to f''"I N~Itil" it is admitted that the Schuylkill County action r~•1~ r~•n'''•cl in Shenandoah's Preliminary Objections to the Complains. wrt:; tntt.t;~t^'I by ~' third party, The Quandel Group ("Quandel"), is ir: ~Luti„<1 that. t.h'~ Sc'huylki].1 County matter is not integrally related eo the inrt,tip m,icc.''~'• By way of further answer, Shenandoah h.ta nt,td" ''111°'~~ ~"t•""~~t 'l'I over and above those claims made by Quandel. A~ ~''~r~lirn)ly, rely d~::l~rns~;; or setoffs GFI may have to the claims made by Shcur~n~l"`i1i ~~' the Schuylkill County action should be resolved in chat prior pending matter as opposed to initiated in Cumbet:]and County .1:: ,1 rn•w ,icCi.on. 20. Denied. The legal sufficiency of Shenandoah's Preliminary '~ Objections to the Complaint is a matter of law for the court to ~' determine. Further, the Schuylkill County action involves the same ~I facts, project and circumstances as the instant action. Thus, GFI's claims in the instant action are merely a defense or setoff to the ~ claims raised by Shenandoah in Schuylkill County. i~ ` 21. Denied. Pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(6), the pendency of a prior action is an authorized and sustainable preliminary objection. Given that the facts and ~! circumstances of the instant matter relate to the same project as the Schuylkill County action, the instant matter must be litigated as part of the Schuylkill County action. WHEREFORE, Defendant, Municipal Authority of the Borough of i Shenandoah, respectfully requests this Honorable Court to deny Gannett I Fleming, Inc.'s Preliminary Objections to the Amended Preliminary i Objections of the Municipal Authority of the Borough of Shenandoah. COHEN & HUNTINGTON, P.C. J E L. SAND ESQUIRE Attorney for Defendant Municipal Authority of the Borough of Shenandoah CERTIFICATE OF SERVICE I, JAMIE L. SANDMAN, ESQUIRE, hereby certify that a true and ii correct copy of the foregoing response to the Preliminary Objections of Plaintiff to the Amended Preliminary Objections of Shenandoah was served upon the following via First Class Mail on July ~ 1997: I Mark S. McKain, Esquire i Powell, Trachtman, Logan, Carrle, ! Bowman & Lombardo, P.C. 367 South Gulph Road King of Prussia, PA 19406 and Mark Semanchik, Esquire Lipkin, Marshall, Bohoard & Thornburg, P.C. Post Office Box 1280 Pottsville, PA 17901 t~lY~ J IE L. S , ESQUIRE r' ni ~ '_ i,.r r: i,. L ., ~ r. ,_S NOTICE TO PLEAD TO: Defendant You are hereby notified to plead to the enclosed Preliminary Objections within (20) ys fr service hereof or a fault ' dgment may be enter agai t you. Attorney for Plaintiff POWELL, TRACHTMAN, LOGAN, GARBLE, BOWMAN & LOMBARDO, P.C. By: Mark S. McKain, Esquire Bradford J. Sandler, Esquire Attorney I.D. Nos. 54364/77463 367 South Gulph Road King of Prussia, PA 19406 (610) 354-9700 Attorney for Plaintiff, Gannett Fleming, Inc. FLEMING,INC. v. MUNICIPAL AUTHORITY OF THE BOROUGH OFSHENANDOAH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION --LAW NO. 96-4639 CIVIL PLAINTIFF, GANNETT FLEMING, INC.'S, PRELIMINARY OBJECTIONS TO THE AMENDED PRELIMINARY OBJECTIONS OF DEFENDANT, MUNICH'AL AUTHORITY OF THE BOROUGH OF SHENANDOAH TO PLAINTIFF'S COMPLAINT Plaintiff, Gannett Fleming, Inc. ("GFI"), by and through its attorneys, Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C., hereby preliminarily objects to the amended preliminary objections of defendant, Municipal Authority of the Borough of Shenandoah ("Municipal Authority") for the following reasons: I. Plaintiff s Motion to Strike the Municipal Authority's Preliminary Objections for Failure to Conform to Law or Rule of Court. On or about August 16, 1996, GF[ commenced the instant action by filing a Writ of Summons against the Municipal Authority. A copy of the Writ of Summons is 50091.1 attached hereto as Exhibit "A." 2. On or about October 9, 1996, the Writ of Summons was served on the Municipal Authority. A copy of the Return of Service is attached hereto as Exhibit "B." 3. On or about January 2, 1997, the Municipal Authority was served with the Complaint. A copy of said Complaint is attached hereto as Exhibit "C." 4. On or about March 14, 1997, after the time period allowable pursuant to both the Pennsylvania and Cumberland County Rules of Civil Procedure, the Municipal Authority served preliminary objections to GFI's Complaint. 5. At no time after being served with the Complaint did the Municipal Authority request an extension of time to answer or otherwise plead. 6. Pursuant to the Pennsylvania Rules of Civil Procedure and the Cumberland County Rules of Civil Procedure, the Municipal Authority was to file an answer or preliminary objections within twenty (20) days of being served with the Complaint or request leave of court. Pa. R.C.P. 1026 (West 1997); C.C.R.C.P. 208-1. The Municipal Authority's preliminary objections to the Complaint are waived inasmuch as the Municipal Authority failed to file the preliminary objections within the time frame permitted by the Pennsylvania Rules of Civil Procedure. WHEREFORE, plaintiff, Gannett Fleming, Inc., respectfully requests that this Honorable Court sustain its Preliminary Objections and overrules the amended preliminary objections of defendant, Municipal Authority of the Borough of Shenandoah, and enter an Order in the form attached hereto. II. Plaintiff's Motion to Strike the Municipal Authority's Preliminary Objections Pursuant to Pa. RC.P. 1028(a)(I) for Legal Insufficiency (Demurrer). 8. In paragraphs 1 through 8 of the Municipal Authority's preliminary objections to the Complaint, the Municipal Authority alleges that venue is improper 50091.1 because it is an "unincorporated association as defined by 42 Pa. C.S.A. § 2156(a).°' Defendant's Preliminary Objections ¶ 2. 9. Further, the "associations" subject to these Pa. R.C.P. 2151-2159 are voluntary associations, and thus, does not apply to organizations established by legislative mandate or some other authority. ~ Firemen'a Pension Fund v Minnauah, 80 D. & C. 297 (1951). ] 0. The defendant Municipal Authority is a municipal authority created pursuant to a legislative act, namely, the Municipal Authorities Act of 1945, Act of May 2, 1945, P.L. 382, 53 P.S. § 301, et. seg. (West 1997). 11. Thus, defendant Municipal Authority may not rely on Pa. R.C.P. 2156 to claim venue is improper. WHEREFORE, plaintiff, Gannett Fleming, Inc., respectfully requests that this Honorable Court sustain the within preliminary objections and overrule defendant's amended preliminary objections, and enter an order in the form attached hereto. III. Plaintiff's Motion to Strike the Municipal Authority's Preliminary Objections Pursuant to Pa. RC.P. 1028(a)(1) for Failure to File Complaint in Proper Venue. 12. In paragraphs 1 through 8 of the Municipal Authority's preliminary objections to the Complaint, the Municipal Authority alleges that venue is improper because the Municipal Authority is an "unincorporated association as defined by 42 Pa. C.S.A. § 2156(a)." Defendant's Preliminary Objections ¶ 2. 13. Paragraphs 1 through 8 of the Municipal Authority's preliminary objections contain legal conclusions, the determination of which can only be made on the basis of facts not presently before this Honorable Court, and in violation of C.C.R.C.P. 206-4. 14. Moreover, the Municipal Authority is an entity that was created pursuant 50091.1 to the Municipal Authorities Act of 1945. 53 P.S. § 301, et. sey. 15. In accordance with § 306(B)(b) of the Municipality authorities Act, the Municipal Authority may "sue and be sued, implead and be impleaded, complain and defend iu all courts." 1_d. § 306(B)(b) (West 1997) (emphasis added). Therefore, venue is proper in this Honorable Court in the County of Cumberland. WHEREFORE, plaintiff, Gannett Fleming, Inc., respectfully requests that this Honorable Court sustain plaintiff s preliminary objections and strike the Municipal Authority's amended preliminary objections to the Complaint, or in the alternative, require the parties to conduct fact discovery to aid this Honorable Court in reaching a decision on the within preliminary objections. IV. Plaintiffs Motion to Strike the Municipal Authority's Preliminary Objections Pursuant to Pa. RC.P. I028(a)(6) Regarding Pendency of Prior Action for Legal Insufficiency (Demurrer). 16. At paragraphs 9 through 14 of its preliminary objections, the Municipal Authority raises the issue of the pendency of a prior action as a basis for this Honorable Court to dismiss GFI's complaint against the Municipal Authority. 17. Paragraphs 9 through 14 of the Municipal Authority's preliminary objections bring before this Court matters which are not properly plead and, more to the point, not plead at all. 18. The instant matter involves an affirmative fee claim brought by GFI to recover monies from the Municipal Authority for engineering services GFI provided in connection with the construction of a water treatment plant. 19. In paragraphs 9 through 14 of the preliminary objections, the Municipal .< '. Authority makes reference to an affirmative claim brought by a third party, The Quandel Group, Inc., against the Municipal Authority (the "Quandel litigation" j. 20. The averments set forth in paragraphs 9 through 14 of the Municipal soo~i.~ Authority's preliminary objections are legally insuflicient. The existence of the Quandel litigation has no bearing on GFI's affirmative right to bring the instant claim in this Honorable Court against the Municipal Authority. 2l. There are no facts of record that indicate that GFI's fee claim should or must be litigated as part of the Quandel litigation. WHEREFORE, plaintiff, Gannett Fleming, Inc., respectfully requests that this Honorable Court sustain plaintiffs preliminary objections and strike the Municipal Authority's amended preliminary objections to the complaint, or in the alternative, require the parties to conduct fact discovery in order to aid this Honorable court in reaching a decision on the within preliminary objections. Respectfully Submitted, LOGAN, GARBLE, ), P.C. BY: Mark S. McKain, Esquire Bradford J. Sandler, Esquire Attorneys for Plaintiff, Gannett Fleming, Inc. Date: June 6, 1997 soo~i.t Exhibit A POWELL, TRACHTMAN, LOGAN, GARBLE & BOWMAN, P.C. BY: Mazk S. McK~in, Esquire Attorney LD. No.: 54364 367 South Gulph Road j King of Prussia, PA 19406 (610) 354-9700 I Attorneys for Gannett Fleming, Inc. ~~4-1 ~ ~, .~zt GANNET'T' FLEMING, INC. 207 Senate Avenue Camp Hill, PA 17011 v. MUNICIPAL AUTHORITY OF THE BOROUGH OFSHENANDOAH 26-28 West Lloyd Street Shenandoah, PA 17976 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA ~~~~Y~ CIVIL ACTION PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: 6~~ ~ c Kindly issue a writ of summons in the above-captioned action. BY: Date: August 15,1996 McKauy i. J, LOGAN, P.C. 'c:, z ~_~~ -: V :s cn 0 .-"~.--ice ~O Om POWELL, TRACHTMAN, LOGAN, BY: Mazk S. MclZain, Esquire Attorney I.D. No.: 54364 367 South Gulph Road King of Prussia, PA 19406 (610) 354-9700 Attorneys for Gannett Fleming, Inc. GARBLE & BOWMAN, P.C. GANNETT FLEMING, INC. 207 Senate Avenue Camp Hill, PA 17011 v. MUNICIPAL AUTHORITY OF THE BOROUGH OFSHENANDOAH 26-28 West Lloyd Street Shenandoah, PA 17976 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. ~-j~ CIVIL ACTION _~%~-~. WRIT OF SUMMONS TO: Municipal Authority of the Borough of Shenandoah 26-28 West Lloyd Street Shenandoah, PA 17976 You are hereby notified that Gannett Fleming, Inc. has commenced' an action against you. Pro ono ary TRUE COPY FROM RECORD ' In Testimony wli~re0t, I here unto set my hand a~:i tti« ~se~! of salp~ou t Carlisle, Pa 1;~~-- day - .19~ r Exhibit d ~~~r ", ut,f G4 1996 .. - -5}iF;RIF'F"; RF:'fUf:N - I~UT OF iUt1rITY CA`:F; ;IO: 175-04E35 P GUMMUFIWEAL'IN OF P}:NN5YLVANIA: GUUNTY OF' CUMHt•:RLF.NC~ GANrI~•;T'f F't,F:Mirl~i IiJC V;;. 11UNICIPP.1, AUTIi~' Sii~:"IANC~LAN ,~. 'Thomas iiline Sha.-iii. who beinr_ ~.~iy =warn a~..cc=din3 tc law, says. that h=_ made a dilic?nt .?arr_h and inquiry for '*.he within. named dei?ndan*, t0 wit: i1UriT.CIP~I. AUTFit):i=TY U~ 'fii:: i3Ul?Uf1UFi t)F' b'IiF:NAM6~:Ati but xas unabl? to locate Chem _ in his baitiwicF:, ..e ihare_°or? deputi.=~ the sherii? of SCFIU'rI,KILL County, ?ennsylvania. to .env? the within WRL'?' Ur ~UMi1UN On Uctr:her 11th, 1550 , this ciiic? was ir, receipt of the Btt3r:^.ed r?turn from SCHUYL?•:ILL County. ?ennsylvania. Sher=xx's Costs: 5c -~=•a>:- ' .:/, 6eek?tinq 1.9.01 ~~;:i' Our. of i_dunry ?.~JO ~~~.r~.-'aC~' ~[:,~.' Surcharce Z. 00 r.'T:nr_mas nrir.~, =_nerxx. SCFIU'iL'niLL GOUFITY 31.50 b~J. ._~U POWcLL T3A~=TiiAri LOGAdi CA3s..- 5wgrn and subscribed to b?to.-e me this day of 1~ A. P. Prothonotary NED OCT 9~ 1s96 1027 AN 1?AGE 3) - .. SHER]FF'S OEPAATMENT DF SCHUYLCILL COUHTY SCHUYLKILL CDUNTY CDURT HD!JSE PDTTSVILLE~ FEN1!SYLVAHiA 17SOL (717) 622-557D BB pFFIDAVIi DF RETURN BB ------------ --------------------------------------------------------------- ------------ I HEREBY CERTIFY hH7 RETUAN THAT BE0.VICE Yh5 NhBE BY HAHBIHB h TGUE AHa ATTESTED CGPY Tc tBRETTA DALLAZIA TSIA+EAV]SOA) ON C/0 HUHICIPAL AUTHDAITY $EPTEHBEfl OSi 1696 BDROUC•H OF SHENANDOAH nT 2.45 PH SHENANDDAH~ PA -------------------------------- -------------------------------------------------- -------- ~/Tfl SC AASNERS $NDRH hH0 BUBBCfl L6E6 8-eFG0.E ME iH:S ___yC_~-- BAY OF __.~IS------i ~~ --- -- ---------------------------- OTHBlIOTAAY -4~y~EF UTY SHE FF) ISHEP IFF OF ~SCHUYLH[LL IAUHTY) ____________________________________________________ _____ _________________________________________________________________________________ • EH6 - OF - RETBflH (96-1GTS1 Exhibit C POWELL, TRACHTMAN, LOGAN, GARBLE, BOWMAN & LOMBARDO, P.C. By: Gunther O. Carrie, Esquire Attorney I.D. No.: 32134 367 South Gulph Road King of Prussia, PA 19406 (610) 354-9700 Attorneys for Gannett Fleming, Inc. GANNETT FLEMING, INC. , Plaintiff V. MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA N0.96-4639 CIVIL CIVIL ACTION c ~ ~o r ~, -D [;) 1:. COMPLAINT £ c: N Count I -Breach of Contract ~ ~ - :,, ~... 3 ~., ~C, The Plaintiff Gannett Fleming, Inc. ("Gannett") is a corporation and existing under the laws of the State of Delawaze with a principal place of business at 207 Senate Avenue, Camp Hill, Pennsylvania 17011 and at all times material hereto was in the business of providing professional engineering services. 0 T T rn~ ~~ !-~ 'm _~ 2. The defendant Municipal Authority of the Borough of Shenandoah ("Authorit}~') is a municipal authority duly organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business at 26-28 West Lloyd Street, Shenandoah, Pennsylvania. On pr about September 3, 1992, Gannett and the Authority entered into an agreement {"Engineering Agreement") pursuant to which Gannett was to provide those specific professional engineering services described therein in connection with the Authority's construction of a new water treatment plant known as the Raven Run Water Treatment Plant and related facilities ("Project")and the Authority was to pay Gannett for basic and additional services rendered and expenses incurred. A true and correct copy of the Engineering Agreement is attached hereto, made a part hereof and referenced as Exhibit "A". 4. Gannett undertook to provide, and did satisfactorily provide, all services required by the Engineering Agreement for which invoices have been submitted. 5. For the Construction Phase Engineering Services provided by Gannett, Gannett has submitted invoices to the Authority totaling Six Hundred and Five Thousand Three Hundred and Twenty-Three Dollazs and Fifty Cents ($605,323.50). 6. Gannett has satisfied any and all conditions precedent to its entitlement to receipt of payment from the Authority. The Authority has paid Gannett a total of Four Hundred and Eighteen Thousand Two Hundred and Eighty-Six Dollazs and Forty-Six Cents ($418,286.46) as a credit against the invoices submitted for which payment is due. 8. Despite the repeated demand by Gannett, the Authority has refused and confmues to refuse to pay fees and expenses totaling One Hundred and Eighty-Seven Thousand and Thirty- Seven Dollazs and Four Cents ($187,037.04), plus interest on the outstanding amount all of which is now due and owing to Gannett. 9. The Authority's refusal to pay the sums due and owing to Gannett is a breach of the Engineering Agreement for which the Authority is liable to Gannett for One Hundred and 34499.2 Eighty-Seven Thousand and Thirty-Seven Dollazs and Four Cents ($187,037.04), plus interest on the outstanding amount all of which is now due and owing to Gannett. WHEREFORE, Gannett Fleming, Inc. prays this Honorable Court enter judgment in its favor and against Municipal Authority of the Borough of Shenandoah in the sum of One Hundred and Eighty-Seven Thousand and Thirty-Seven Dollazs and Four Cents ($187,037.04), plus interest. Count II -Unjust Enrichment 10. Plaintiff incorporates by reference Pazagraphs 1 - 9 of this Complaint as if set forth herein at length. 11. The fair and reasonable value of the services rendered and expenses incurred by Gannett in the Authority's interest in connection with the Project is Six Hundred and Fire Thousand Three Hundred and Twenty-Three Dollazs and Fifty Cents ($605,323.50). 12. The Authority has paid Gannett a total of Four Hundred and Eighteen Thousand Two Hundred and Eighty-Six Dollazs and Forty-Six Cents ($418,286.46) as a credit against the • fair and reasonable value of the services rendered and expenses incurred by Gannett for the Authority's benefit in connection with the Project. 13. A total of One Hundred and Eighty-Seven Thousand and Thirty-Seven Dollazs and Four Cents ($187,037.04), plus interest remains unpaid and is due and owing to Gannett. 14. If the Authority is not required to pay Gannett for the services rendered and expenses incurred asset forth above, the Authority will be unjustly enriched at the expense of Gannett. WHEREFORE, Gannett Fleming, Inc. prays this Honorable Court enter judgment in its favor and against Municipal Authority of the Borough of Shenandoah in the sum of One 34499.2 Htmdred and Eighty-Seven Thousand andThirty-Seven Dollazs and Four Cents ($187,037.04), plus interest. SUBMITTED BY Powell, Trachtman, Logan, Carrie, Bowman & Lombardo, P.C. By ~ ~~ Gunther O. Carrie Attorney For Plaintiff Gannett Fleming, Inc. 34499.2 4 AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA ss. COUNTY OF DAUPHIN Before me, the undersigned authority in and fot the County and Commonwealth aforesaid, personally appeazed JAMES L. LONG, who being duly sworn according to law, deposes and says that he is Senior Vice President of Gannett Fleming, Inc.; that in such capacity, he is authorized to and does hereby make this Affidavit for and on its behalf; and avers that the facts set forth in Gannett Fleming, Inc. s Complaint are true and correct to the best of his knowledge, information and belief. am subject to penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsifi~ to authhorit G~wl~t- J S L. LONG Senior Vice President Gannett Fleming, Inc. Sworn to and Subscribed before me this~?`41ay of December, 1996. ~a~. ~..~...Q.Q.fl.~ Notary Public .....------1 ~, ~ .~ ~._` , n i5_ I realize that if the foregoing is willfully false, CERTIFICATE OF SERVICE I, Gunther O. Carne, Esquire, counsel for Gannett Fleming, Inc., certify that on December 30, 1996, a true and correct copy of the foregoing Complaint was forwazded to opposing counsel by U.S. Mail, postage prepaid, at the addresses below. Municipal Authority of the Borough of Shenandoah 26-28 West Lloyd Street Shenandoah, PA 17976 POWELL, TRACHTMAN, LOGAN, GARBLE, BOWMAN & LOMBARDO, P.C. BY: Gunther 0. Carne, Esquire :', EXHIBIT "A" GonnettFleming CONTRACT FOR PROFESSIONAL SERVICES ~'-~~- '''t'" J "+ ~- • ~ _ BY AND BETWEEN THE __- MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH SHENANDOAH,PENNSYLVANIA AND GANNETT PEENING, INC. THIS CONTRACT, entered into as of this 3_~I _ day of Sop+.Mbe.. , 1992, by and between the MUNICIPAL AUTHORITY OFTHE BOROUGH OF SHENANDOAH, Pennsylvania, hereinafter referred to as the "Authority", and GANNETT PEENING, INC., P. O. Box 1963, Harrisburg, PA 17105-1963, hereinafter referred "Consultant" as a supplement to our November 16,1989 Contract with the Authority for Engineering Services related to the Authority's Water Treatment Projects (Part I -Preliminary Phase and Part II -Final Design Phase). WHEREAS, the Authority desires the Consultant to provide professional services related to Construction Phase Engineering Services -Shenandoah Water Treatment Plant (Section 3.0 -Construction Management Services, by GANNETT PEENING, only, and Section 4.0 - Staztup Services by GANNETT PEENING, in conjunction with AMERICAN COMMONWEALTH MANAGEMENT SERVICES COMPANY, INC.) as outlined in the Proposal dated July 27, 1992, attached hereto as Exhibit "A". THEREFORE, the parties hereto do mutually agree as follows: 1. SCOPE OF WORK The Consultant shall perform all the necessary services provided under this contract in a satisfactory and proper manner. The work to be performed is more fully described iri the Proposal, which is attached hereto as Exhibit "A". 2. TIME OF PERFORMANCE The services of Consultant are to commence upon signing of this Contract for Professional Services by the Authority and shall be completed on or about August 1, 1994 the anticipated construction and startup completion time for the Water Treatment Plant. 3. COMPENSATION The compensation to .be paid .to Consultant for the project defined in the scope of work of ConstruMion Management and Startup Services by Gannett Fleming, Inc. shall not exceed FOUR HUNDRED SEVENTY FIVE (1) Gannett Fleming THOUSAND DOLLARS ($475,000.00). Consultant will not exceed that maximum cost unless given authorization by the Authority., Q. NON-APPROPRIATION In the event no funds or insufficient funds aze appropriated and budgeted or are otherwise not available in any fiscal yeaz for payments due under this contract, the Authority will immediately notify Consultant of such occurrence and this contract shall terminate on the last day of the fiscal yeaz for which appropriations were received without penalty or expense to the Authority, except as to the payments which funds shall have been appropriated and budgeted or are otherwise available. 5. METHOD OF PAYMENT The Consultant will submit to the Authority invoices on a monthly basis for work completed, and these invoices will be due upon receipt. 6. TERMS AND CONDITIONS This Contract is subject to the following terms and conditions: A. Delays Delays in project completion caused by conditions beyond Consultant's control, such as delinquency of Contractor to complete project per schedule, unfavorable weather conditions, partial or complete plant shutdowns, strikes, floods, or fires, constitute a change of scope. Consultant will notify the Authority of any delays and bill the Authority for any additional work resulting from such at the current schedule of charges. B. Successors and Assiens The Authority and Consultant each binds himself and his partners, successors, executors, administrators and assigns to the other party of this Contract and to the partners, successors, executors, administrators and assigns of such other party, in respect to all covenanu of this Contract; except as above, neither the Authority nor the Consultant Shall assign, sublet or transfer his interest in this Contract without the written consent of the other. Nothing herein shall be construed as creating any personal liability on the part of any officer who maybe a party hereto, nor shall it be construed as giving any rights or benefiu hereunder to anyone other than the Authority and the Consultant. (2) GannettPleming 7 8. 9. INSURANCE The Consultant shall maintain insurance coverage in the following amounts and shall provide a Certificate of Insurance so indicating: Type of Policy Standazd Worker's Compensation Employers Liability General Liability Combined Single Limit (Bodily Injury & Prop. Damage) Automobile Liability Combined Single Limit (Bodily Injury & Prop. Damage) INDEMNITY Limits of Liability Statutory $500,000 $1,000,000 Each Occurrence $1,000,000 Each Occurrence Consultant shall indemnify and hold harmless the Authority from and against any and all claims, loss, damage, liability, and expenses, including attorney's fees, arising or claimed to have arisen out of any act or omission of Consultant, its agents o~ employees, in connection with the performance of this contract. The Authority shall indemnify and hold harmless the Consultant against any and all third party actions, which may arise from the Authorit}~s failure to timely comply with state drinking water regulations, consent decrees, consent orders and agreements, or other orders issued by government entitles. The Authority acknowledges that the Consultant's ability to effectively carry out its obligations under this contract depends, in part, on the Authority's cooperation and prompt and timely fulfillment of its obligations. The' Authority hereby agrees that it shall execute documents and/or take actions as aze necessary to enable the Consultant to perform its obligations hereunder. The Authority shall assume liability for any assessed civil, criminal and/or administrative fines or penalties by any regulatory agency during the term 9f this contract for any and all violations except for violations resulting from any negligent act or omission by the Consultant. SAFETY Consultant's personnel shall provide and use their own safety equipment, such as hazd hats, goggles and other items of safety equipment, unless otherwise instructed. If and when any special safety equipment may be required, the Authority shall specify the necessity of this equipment to the Consultant. (3) GonnettPleming IN HESS WHEREOF, the Authority and the Consultant have executed this Contract as of the date first above written. Gp.NNETT PEENING, INC. ATTEST: Robert A. St k~~~=_ Senior Project Manager Senior Vice Prksident Director Water Resources and Geotechnical Division Accepted Date: _ ~ 1992 A'f`1'FS T: Secr IMUniuin.u~ Municipal Authority of the Borough of Shenandoah ~ / L ~ ~f , Chairman (4) VERIFICATION I, Mark S. McKain, Esquire, counsel for Plaintiff, hereby state that the averments contained in the foregoing Plaintiff s Preliminary Objections to the Amended Preliminary Objections of Defendant, Municipal Authority of the Borough of Shenandoah to Plaintiff's Complaint are true and correct to the best of my knowledge, information and belief and that I make this Verification subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. j~l '~_ Mark S. McKain, Esquire Date: 50091.1 tiERTIFiCATE OF SERVICE I, Mark S. McKain, Esquire, counsel for Plaintiff, certify that on June 6, 1997, a true and correct copy of the foregoing Plaintiffs Preliminary Objections to the Preliminary Objections of Defendant, Municipal Authority of the Borough of Shenandoah to Plaintiff s Complaint was forwarded to opposing counsel by U.S. Mail, postage prepaid, at the addresses below. Roy S. Cohen, Esquire Jamie L. Sandman, Esquire Cohen & Huntington, P.C. 1515 Market Street, 11th Floor Philadelphia, PA 19102 TEL: (215) 564-1700 Counsel for Defendant LOGAN, GARBLE, ), P.C. / ~ BY: Mark S. McKain, Esquire Bradford J. Sandler, Esquire 50091.1 GANNETT FLEMING, INC. IN THE COURT OF CUMMV1v ri.nna yr CUMBERLAND COUNTY, PA v. CIVIL ACTION --LAW MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH NO. 96-4639 CIVIL ORDER AND NOW, this day of , 1997, upon consideration of plaintiff, Gannett Fleming, Inc.'s preliminary objections to the preliminary objections of defendant, Municipal Authority of the Borough of Shenandoah to Plaintiffls Complaint, the supporting memorandum of law, and responses thereto, it is hereby ORDERED and DECREED that plaintiffls preliminary objections aze hereby SUSTAINED, and that defendant's amended preliminary objections aze hereby OVERRULED, and that defendant shall file an answer to plaintiffls complaint within twenty (20) days of the date of this Order. BY THE COURT: J. 50091.1 C1 I' _, LS!~ - - (' is O' i.' ~L ~ 1, IN THE COUR"1~ Ut• curvrmvi. r.-~~~ ~• CUMBERLAND COUNTY, PA v. MUNICIPAL AUTHORITY OF THE BOROUGH OFSHENANDOAH CIV[L ACTION --LAW NO. 96-4639 CIVIL ORDER da of , 1997, upon AND NOW, this Y consideration of plaintiff, Gannett Fleming, Inc.'s preliminary objections to the preliminary objections of defendant, Municipal Authority of the Borough of Shenandoah to Plaintiffls Complaint, the supporting memorandum of law, and responses thereto, it is hereby ORDERED and DECREED that plaintiff s preliminary objections are hereby SUSTAINED, and that defendant's amended preliminary objections are hereby OVERRULED, and that defendant shall file an answer to plaintiff's complaint within twenty (20) days of the date of this Order. BY THE COURT: J. A I 50091.1 IN THECUUxt yr ~.~•~•~~•~•~ CUMBERLAND COUNTY, PA ~' ~ CIVIL ACTION --LAW aM uNnC~H OF IiENANDOpg F THE I NO. 96-4639 CIVIL pRDER da of , 1997, upon AND NOW, this Y consideration of plaintiff, Gannett Fleming, Inc.'s preliminary objections to the preliminary objections of defendant, Municipal Authority of the Borough of Shenandoah to Plaintiff s Complaint, the supporting memorandum of law, and responses thereto, it is hereby ORDERED and DECREED that plaintiffls preliminary objections aze hereby SUSTAINED, and that defendant's amended preliminary objections aze hereby OVERRULED, and that defendant shall file an answer to plaintiffls complaint within twenty (20) days of the date of this Order. BY THE COURT: J. 5009].1 OF .k~;. i ~_ 'Q ~_ Q. 1 i \~. %''~ i. it ;,r f'i S .COHEN 6 HUNTINGTON, P.C. 'By: Roy 8. Cohen, Esquire I.D. No. 32342 By: Jamie L. Sandman, Esquire I.D. No. 70610 1515 Market Street 11th Floor Philadelphia, PA 19102 (215) 564-1700 GANNETT FLEMING, INC. Plaintiff, V. MUNICIPAL AUTHORITY OF THE BOROUGH OF BHENANDOAH Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO. 96-4639 CIVIL DEFENDANT MUNICIPAL AUTHORITY OF THE BOROUGH OF BHENANDOAH'B PRELIMINARY OBJECTIONS TO THE COMPLAINT OF GANNETT FLEMING, YNC. Defendant, Municipal Authority of the Borough of Shenandoah ("Shenandoah"), by and through its undersigned counsel, hereby raises the following preliminary objections to the Complaint of Gannett Fleming, Inc. ("GFI") for the reasons set forth below: I. PRELIMINARY OBJECTION PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1028(A)(1) FOR FAILURE TO FILE COMPLAINT IN PROPER VENUE 1. GFI's Complaint seeks to recover monies allegedly due and owing for engineering services which it provided to Shenandoah in connection with Shenandoah's construction of a new water treatment plant in Shenandoah, Pennsylvania (the "Project"). 2. Shenandoah is an incorporated association as defined by i 42 Pa. C.S.A. § 2151. ~ 3. Pursuant to 42 Pa. C.S.A. § 2156(a) an action against an association may be brought "in and only in a county where the association regularly conducts business or any association activity, or in the county where the cause of action arose or in a county where a transaction or occurrence took place out of which the cause of action arose." 4. Shenandoah regularly conducts business and all association activities in Shenandoah, Pennsylvania which is in Schuylkill County. 5. The Project at issue in this matter is located in Schuylkill County, Pennsylvania. 6. There are no transactions relative to the Project which occurred outside of Schuylkill County. 7. By virtue of 42 Pa. C.S.A. § 2156, Cumberland County is not the proper venue for the instant matter. e. Rather, this action was required to be filed in the Court of Common Pleas of Schuylkill County. WHEREFORE, Defendant, Municipal Authority of the Borough of Shenandoah, respectfully requests this Honorable Court to sustain this Preliminary Objection and dismiss the Complaint filed by Gannett Fleming, Inc. II. PROCEDURER1028(a)(6oNREGARD NG PENDENCYYOFAAIPRTOREACTIONVIL 9. The Complaint in this matter was instituted via a Writ of Summons filed in the Court of Common Pleas of Cumberland County on August 19, 1996. 10. On May 3, 1995, The Quandel Group, Inc. ("Quandel"), the j general contractor on the Project, filed a Complaint in an action stylized as The Quandel Grouo Inc v The Borouah of Shenandoah, ( Court of Common Pleas Schuylkill County, No. 5-819-1995, against Shenandoah seeking compensation for cost overruns and delays it 1 experienced on the Project (the "Schuylkill County Action"). 11. On July 11, 1995, Shenandoah filed a Writ of Summons to join GFI, the engineer on the Project, and Bognet, Inc. ("Bognet"), ,! the mechanical contractor on the Project, as Additional Defendants ~I in the Schuylkill County Action. 12. The Writ filed by Shenandoah against GFI in the Schuylkill County Action predates the instant matter by over one (1) year. 13. In the Schuylkill County Action, the following discovery has already been served and responded to: a. Request for Production of Documents served by Shenandoah on Quandel; b. Request for Production of Documents served by Quandel on Shenandoah; and, c. Request for Production of Documents served on Quandel by GFI. 14. The Schuylkill County Action relates to the precise Project and circumstances as identified in the Cumberland County action filed by GFI. 15. The pendency of the Schuylkill County action obviates the I~ need for the Cumberland County action filed subsequently by GFI. WHEREFORE, Defendant, Municipal Authority of the Borough of Shenandoah, respectfully requests this Honorable Court to sustain this Preliminary Objection and dismiss the Complaint filed by Gannett Fleming, Inc. in the Cumberland County Court of Common Pleas. COHEN 6 HUNTINGTON, P.C. ~ II Ja le L. Sandman, squire Attorney for Defendant Municipal Authority of the Borough of Shenandoah JAMIE L. SANDMAN, ESQUIRE counsel for Defendant, Municipal Authority of the Borough of Shenandoah, being duly sworn according to law, deposes and says that she is duly authori2ed to take this Verification pursuant to Rule 1024{c) of the Pennsylvania Rules of Civil Procedure; that the of officers of the Defendant are outside the jurisdiction of the County and cannot execute the Verification within the time frame required; that the facts set forth herein were conveyed by the officers of Defendant and that the facts set forth herein are true and correct to the best of her knowledge, information and belief. E L. SAND ,~EBQ RE CERTIFICATE OF SERVICE I, JAMIE L. SANDMAN, ESQUIRE, hereby certify that a true and correct copy of the foregoing Preliminary objections was served upon the following via First Class Mail on March 14, 1997: Gunther O. Carrle, Esquire Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C. 367 South Gulph Road King of Prussia, PA 19406 Mark Semanchik, Esquire Lipkin, Marshall, Bohoard & Thornburg, P.C. P.0. Box 1280 Pottsville, PA 17901 ~ C~.~~.~- •~Ma~ ~ J E L. SANDMAN ESQUIRE i (~ i, i f- ~.. .J COHEN fi HUNTINGTON, P.C. By: Jami© L. Sandman, Esquire I.D. No. 70610 1515 Market Street 11th Floor Philadelphia, PA 19102 (215) 564-1700 GANNETT FLEMING, INC. COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY v. . CZVZL ACTION MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAI{ NO. 96-4639 CIVIL Defendant. . DEFENDANT MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH'S AMENDED PRELIMINARY OBJECTIONS TO THE COMPLAINT OF GANNETT FLEMING. INC. Defendant, Municipal Authority of the Borough of Shenandoah ("Shenandoah"), by and through its undersigned counsel, hereby raises the following amended preliminary objections to the Complaint of Gannett Fleming, Inc. ("GFI") for the reasons set forth below: I. PRELIMINARY OBJECTION PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1028(A)(1) FOR FAILURE TO FILE COMPLAINT IN PROPER VENUE 1. GFI's Complaint seeks to recover monies allegedly due and owing for engineering services which it provided to Shenandoah in connection with Shenandoah's construction of a new water treatment plant in Shenandoah, Pennsylvania (the "Project"). 2. Shenandoah is an unincorporated association as defined by 42 Pa. C.S.A. § 2151. ~. Pursuant to 42 Pa. C.S.A. § 2156(a) an action against an association may be brought "in and only in a county where the association regularly conducts business or any association activity, or in the county where the cause of action arose or in a county where a transaction or occurrence took place out of which the c:ause of action arose." 4. Shenandoah regularly conducts business and all association activities in Shenandoah, Pennsylvania which is in Schuylkill County. ~. 'Phe Project at issue in this matter is located in I SchuylF:il1 County, Pennsylvania. G. 'f here are no transactions relative to the Project which occurred outside of Schuylkill County. 7. By virtue of 42 Pa. C.S.A. § 2156, Cumberland County is not the proper venue for the instant matter. 3. Rather, this action otas required to be filed in the Court of Common Pleas of Schuylkill County. ~~ WHEREFORE, Defendant, Municipal Authority of the Borough of ' Shenandoah, respectfully requests this Honorable Court to sustain this Preliminary objection and dismiss the Complaint filed by Gannett Fleming, Inc. II. PRELIMINARY OBJECTION PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1028(a)(6) REGARDING PENDENCY OF A PRIOR ACTION 9. 'Phe Complaint in this matter was instituted via a Writ of Summons filed with the Court of Common Pleas of Cumberland County on Auqust 19, 199G. 10. On July 11, 1995, Shenandoah filed a Writ to join GFI as an additional defendant in a matter regarding the construction of the Project in ~~hich The puandel Group, Inc. ("Quandel") was the Plaintiff and Shenandoah was the Defendant. 1 11. 't'he t•7rit filed in Schuylkill County predates the instant i„ matter by over one (1) year. 12. In the Schuylkill County matter, the following discovery has already been served and responded to: a. Request for Production of Documents served by Shenandoah on Quandel; b. Request for Production of Documents served by Quandel on Shenandoah; and, c. Request for Production of Documents served on Quandel by GFI. 13. The Schuylkill County action relates to the precise Project and circumstances as identified in the Cumberland County action filed by GFI. 14. '1'he pendency of the Schuylkill County action obviates the need for of the Cumberland County action filed subsequently by GFI. [VHEREFORE, Defendant, Municipal Authority of the Borough of Shenandoah, respectfully requests this Honorable Court to sustain this Preliminary Objection and dismiss the Complaint filed by Gannett Fleming, Inc. in the Cumberland County Court of Common Pleas. COHEN fi HUNTINGTON, P.C. By: ~• ,rwty~ Jam a L. San man, Esquire Attorney for Defendant Municipal Authority of the Borough of Shenandoah CERTIFICATE OF SERVICE I, JAMIE L. SANDMAN, ESQUIRE, hereby certify that a true and correct copy of the foregoing Amended Preliminary Objections was served upon the following via First Class Mail on April 21, 1997: Mark McKain, Esquire an, Carrle, Powell, Trachtman, Loq Bowman & Lombardo, P.C. 3G7 South Gulph Road King of Prussia, PA 19406 Mark Semanchik, Esquire Lipkin, Marshall, Bohoard & Thornburg, P.C. P.O. Box 1280 Pottsville, PA 17901 JAMIE L. $ANDMANr E84UIRE VERIFICATION JAMIE L. SANDMAN, ESQUIRE counsel for Defendant, Municipal Authority of the Borough of Shenandoah, being duly sworn according to law, deposes and says that she is duly authorized to take this Verification pursuant to Rule 1024 (c) of the Pennsylvania Rules of Civil Procedure; that the of officers of the Defendant are outside the jurisdiction of the County and cannot execute the Verification within the time frame required; that the facts set forth herein were conveyed by the officers of Defendant and that the facts set forth herein are true and correct to the best of her knowledge, information and belief. ~• J E L. SANDMAN, ESQ IRE ' f.~ ~ ( ~~. 1 LJ~ `~ t. 1 C ~ " . I f. L: ' ' 1 lL rv_ _ i. ~.. ~., i:` .: ~,~R.- r - .. (,annPt-i< Pmi ~~~ vs Case N . 96-4639 5 -'~-- Mlancipal Authority of the ~j,lgh ~f S'1't nanc~nah Statement of Intention to Proceed To the Court: ' David .T • -13olge~ ~ _-:. ~ • irate to prose with the above captioned matter. w Print Name David T. Bolger ! Esq. __ Sign Na _. _ __ Date:1~ " ~ ~- ~ Attorney for Gannett Inc. Ezplanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Adnnistration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case,, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the maker, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Ru1e230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. Tf the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (dx2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been temunated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. f ~`~° ~ , 7~- _J e L ti Office of the Prothonotary Cumberland County, PA Curtis R. Long Prothonotary Case # (s) 96-4639 03-0355 NOTICE OF PROPOSED TERMINATION OF COURT CASE To: DAVID W. FRANCIS, ESQ. POWELL TRACHTMAN LOCAN GARBLE & BOWMAN The court intends to terminate this case without further notice because the docket shows no activity in the case for at least two years. You may stop the court from terminating the case by filing a Statement of Intention to Proceed. The Statement of intention to Proceed should be filed with the Prothonotary of the Court at: CUMBERLAND COUNTY PROTHONOTARY ONE COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6195 on or before November 2, 2007. Date IF YOU FAIL TO FILE THE REQUIRED STATEMENT OF INTENTION TO PROCEED, THE CASE WILL BE TERMINATED September 21, 2007 Date of this Notice urtis R. I,on Proth otary CHECK YOUR CASE #'s at www.cc a.net - On the Left Navigation Bar click on "Administrative Row Offices" -page down and click on "Prothonotary" -Once on the Prothonotary Home Page, look on the Right Navigation Bar for "Searchable Civil Records" -Click on it and Follow the Directions. n ~ C`~ ~t~ ~ ~~ ' ~ a ~ ~ ~~ : L41 ~ i'T / y ld4! ±~ _~ t~ ~~ GANNETT FLEMING, INC., Plaintiff, V. MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH, Defendant. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA Civil Action No.: 96-4639 PRAECIPE TO SETTLE, DISCONTINUE, AND END TO THE PROTHONOTARY: Kindly mark the above-captioned matter settled, discontinued, and ended with prejudice. POW LL, TRAC & LO ARD , BY: T. B 475 Allend e King of Pr si Attomevs for cam: Lij c 3? :z o; c3 it. ca C) C)_ t? C\1 C? i €1. ..,.. LLJ C!7 LIJ ?.... 3i N N C.'! C' J ? B ,LOGAN,CARRLE d, Sui P Fleming, Inc. WILLIAM-E<J, HU>?KE, ESQUIRE P.O. Box 248 / Shenandoah, PA 17976 Attorneys for the Municipal Authority of the Borough of Shenandoah a - 4 COHEN SEGLIAS PALLAS GREENHALL, & FURMAN, P.C. BY• OH J. SQUIRE 3 outh 17 Street, 19`" Floor Philadelphia, PA 19103 Co-counsel for the Municipal Authority September lik, 2010 of the Borough of Shenandoah 2 41077209-vi 05337-0001