HomeMy WebLinkAbout02-5587Boyd E. Diller, Inc.,
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
Donald H. Erwin and Robert K. Erwin,
t/d/b/a K & D Development Company,
Defendant
Docket No. O ~ -~- .o~'~0L:i7
Civil Action - Law
NOTICE TO DEFEND
You have been sued in Court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and notice
are served, by entering a written appearance personally or by attorney and filing in writing with
the Court your defenses or objections to the claims set forth against you. You are warned that if
you fail to do so the case may proceed without you and a judgment may be entered against you
by the Court without further notice for any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff YOU MAY LOSE MONEY OR PROPERTY OR
OTI-I~R RIGHTS IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FiND OUT WHERE YOU CAN GET LEGAL HELP.
Lawyer Referral Service of
The York County Bar Association
The York County Bar Center
137 East Market Street
York, Pennsylvania 17401
Bar Association - (717) 771-9361
Lawyer Referral Service - (717) 854-8755
(00100656/I}
AVISO
USTED HA SIDO DEMANDADO EN LA CORTE Si usted desea defenderse de las
quejas expuestas en las p~iginas siguientes, debe tomar acci6n dentro de veinte (20) dias a partir
del ' ',
a fecha en que remNo la demanda y el aviso. Usted debe presentar comparecencia escrita en
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Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede
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PERDER DINERO, O PROPIEDADES U OSTROS DERECHOS IMPORTANTES PARA
USTED.
LLEVE ESTA DEMANDA A UN ABOGADO INM]EDIATAMENTE SI USTED NO
TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA
DIRECClON ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER
ASISTENCIA LEGAL.
Lawyer Referral Service of
The York County Bar Association
The York County Bar Center
137 East Market Street
York, Pennsylvania 17401
Tel~fono No. (717) 854-8755
{00100656/I)
AMERICANS WITH DISABILITIES
ACT OF 1990
The Court of Common Pleas of York County, Pennsylvania, is required by law to comply
with the Americans with Disabilities Act of 1990. For information about accessible facilities and
reasonable accommodations available to disabled individuals having business before the court,
please contact the county at (717) 771-9099. For those with a hearing impairment, please
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scheduled conference or hearing.
{00100656/I}
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Boyd E. Diller, Inc.,
Plaintiff
Donald H. Erwin and Robert
K. Erwin, ffd/b/a
R & D Development Company,
Defendants
Docket No. ~.2...- 5~ '7
Civil Action - Law
COMPLAINT
AND NOW, comes the Plaintiff, Boyd E. Diller, Inc., by its attorneys, CGA Law
Firm, who files the following Complaint averring that:
1. The Plaintiff, Boyd E. Diller, Inc. ("Plaintiff") is a corporation organized
and existing under the laws of the Commonwealth of Pennsylvania, with offices at 6820
Wertzville Road, Enola, Cumberland County, Pennsylvania 17025.
2. The Defendants, Donald H. Erwin and Robert K. Erwin t/d/b/a R & D
Development Company (collectively referred to as "Defendant"), are the owners of a
business involved in real estate investment that has registered a fictitious name in the
Commonwealth of Pennsylvania of "R & D Development Company," with its
registered and principal place of business located at 240 Candlewyck Lane, Hershey,
Dauphin County, Pennsylvania 17033. Defendant, Donald H. Erwin, registered his
address of R.D. gl, Box 368, Palmyra, Pennsylvania; and Defendant, Robert K.
Erwin, registered his address at 240 Candlewyck Lane, Hershey, Dauphin County,
Pennsylvania 17033.
3. On or about August 4, 1997, Plaintiff contracted with Defendant to
perform work, supply labor, and supply materials which included, but is not limited to,
erosion and sediment control measures, site excavating and grading, sanitary sewer
lateral construction, storm drainage construction, driveway and parking construction, and
detention basin excavating and grading. The work was performed for the project known
as York City Industrial Park Lot #16 and detention basin ("York Industrial Park"),
located in York County, Pennsylvania. A true and correct copy of Plaintiff's proposal
reflecting the services performed is incorporated herein and attached hereto as Exhibit
4. On or about September 12, 1997, Plaintiff began per~brming the work,
supplying the labor, and supplying the materials to perlbrm the work as described above;
and the Plaintiff completed the work in February of 1998.
5. From time to time, Plaintiff presented to Defendant for payment
applications and certificates for payment ("Application"), invoices, and bills for the work
performed and materials supplied at York Industrial Park. From time to time, Defendant
made payments to Plaintiff for this work. Incorporated by reference herein and attached
hereto as Exhibit "B" is a true and correct copy ofPlaintifffs "A/R [Account Receivable]
Job Aging and Retention" report (as of July 18, 2001), which itemizes the amounts
charged and paid tbr the work at York Industrial Park. Incorporated by reference herein
and attached hereto as Exhibit "C," is a true and correct copy of the Application dated
February 28, 1998, which describes and itemizes the work completed and the
corresponding charges. The total amount and balance that Defendant owes to Plaintiff
for the work performed at York Industrial Park is Seventeen Thousand and Six Hundred
and Thirty-One Dollars and Forty-One Cents ($17,631.41).
6. Plaintiff completed the work at York Industrial Park without complaint
from Defendant; and Plaintiffhas performed all contingencies and conditions of its
contract with Defendant concerning York Industrial Park.
7. Plaintiff has made a demand upon Defendant to forthwith pay the
outstanding balance of Seventeen Thousand and Six Hundred and Thirty-One Dollars and
Forty-One Cents ($17,631.41) for the work completed at this project; and there has been
no promise or agreement by Defendant to do so by an agreed upon date or at all
COUNT I
BREACH OF CONTRACT
8. Plaintiff reiterates paragraphs I through 7 of its Complaint and
incorporates same herein as though more fully set forth.
9. Defendant's failure to pay the full amounts due and owing to Plaintiff
constitutes a breach of contract.
10. As a result of Defendant's breach of contract, Plaintiff has suffered
damages including, but limited to, the following:
a. The balance due and owing for the work completed and materials
supplied at York Industrial Park of Seventeen Thousand and Six
Hundred and Thirty-One Dollars and Forty-One Cents
($17,631.4 l); and
b. Interest at the contracted rate between the parties as may be
determined during discovery.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter
judgment in its favor and against Defendant in the amount of Seventeen Thousand and
Six Hundred and Thirty-One Dollars and Forty-One Cents ($17,631.41), plus interest and
attorney's fees, if applicable, in addition to any other legal or equitable relief that the
Honorable Court deems to be proper and justified.
COUNT II
UNJUST ENRICHMENT
11. Plaintiffreiterates paragraphs I through 10 of its Complaint and
incorporates same herein as though more fully set forth.
12. Defendant received certain services, supplies, and work from Plaintiff,
as set forth above; and Defendant has to make complete payment for same.
13. As a result of Defendant's actions, it has been unjustly enriched by
receiving the benefit of the services, supplies, and work provided by Plaintiff without
making payment for same.
14. As a result of Defendant's unjust enrichment, Plaintiff has suffered
damages as set forth above.
WItEREFORE, Plaintiff respectfully requests that this Honorable Court enter
judgment in its favor and against Defendant in the amount of Seventeen Thousand and
Six Hundred and Thirty-One Dollars and Fo~y-One Cents ($17,631 41 ), plus interest and
attorney's fees, if applicable, in addition to any other legal or equitable relief that the
Honorable Court deems to be proper and justified.
COUNT III
PROMISSORY ESTOPPEL
15. Plaintiff reiterates paragraphs 1 though 14 of its Complaint and
incorporates same herein as though more fully set forth.
16. Defendant promised to pay Plaintiff for the services, supplies, and work
received by Defendant as set forth above.
17. Defendant intended that Plaintiff rely on Defendant's promise to pay; and
Defendant did nothing to change or correct Plaintiff's reliance on the promise as
Defendant performed the work as described above. All of the work performed, labor
supplied, and materials supplied by Plaintiff were done so with Defendant's complete
knowledge and approval as the work was being performed.
18. Plaintiff did reasonably rely on Defendant's promise to pay in
accordance with Plaintiff's proposals by performing the agreed upon services and work
for Defendant.
19. As a result, Plaintiff has suffered a detriment for the damages as set forth
above.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter
judgment in its favor and against Defendant in the amount of Seventeen Thousand and
Six Hundred and Thirty-One Dollars and Forty-One Cents ($17,63141), plus interest and
attorney's fees, if applicable, in addition to any other legal or equitable relief that the
VERIFICATION
I, the undersigned, hereby affirm I am authorized to verify the facts contained
within this Complaint on behalf of Boyd E. Diller, Inc. and that the facts contained in the
foregoing Complaint are true and correct to the best of my knowledge, information, and
belief. This statement is made subject to the penalties of 18 Pa.C.S. Section 4904 relating
to unsworn falsification to authorities.
Dated:/¢~ z
Exhibit A
a EXCAVATING AND PAVING CONTRA~.;~OR
a MUNICIPAL WASTE TRANSFER STATION
Serving the Central PA Area Since 1940
You'C~r~{S%se Of your:.
· Site preparation
· Street Construction/Paving
· Sawer Mains
· Water Mains
· Storm Drainage
· Equipment Rental
· Demol[ti0n' Meterial
· Tree Limbsi& Stumps
· Old Furniture
* Old Appliances
· Household Refuse
AUGUST 4, 1997
R & D DEVELOPMENT CO.
ATTN: DON ERWIiW
242 W. CHOCOLATE AVENUE
HERSHEY, PA 17033
YORK CITY INDUSTRIAL PARK
LOT NO. 16 & DETENTION BASIN
YORK CO., PA
L.J. HARFORD & ASSOC.
PHONE 582-8349
DRAWINGS:
SILTS. ~e2, 4 & 5 OF 5 DATED MARCH 25, 1997
SILTS #1 & 2 OF 2 (E & S) DATED MARCH 25, 1997
DRAWING RECEIVED BY BOYD E. DILLER, INC. MAY 15, 1997
SHT. ~3 OF 5 - REV. DATE 5/18/97
DRAWINGS RECEIVED BY BOYD E. DILLER, Ii'NC. 5127/97
EXHIBIT "A"
~nl A PA 17025 PHONE (717} 766-6403
FAX (717) 766-8690
YORK CITY INDUSTRIAL PARK
AUGUST 4, 1997
PAGE 3
SITE EXCAVATION & GRADING
CLEARING & GRUBBING
DEMOLISH & REMOVE EXISTING ~ KILNS
STR~ TOPSOIL 6" D~:~:~' & STOCKPH .F, ON SITE
BULK EXCAVATION:
GRADE SflI/PERIMETER
REPLACE TOPSOIL4" Dh-TffP @ PROPOSED
GRASS PERIMETER AREAS ONLY
(TOPSOIL REPLACEMENT @ BLDG AREA
TO BE DONE BY OTHERS)
JOB MOBILIZATION
1.0 AC $ 5,000.00
2 EA 1,250.00
3000 CY 1.30
3418 CY 1.75
3418 CY 1.25
1217 CY 1.00
1070 CY 4.00
$ 5,000.00
N/A
3,900.00
5,981.50
4,27230
1,217.00
4,280.00
LS 3000.00 3,000.00
DETENTION BASIN EXCAVATION & GRADING
STRIP TOPSOIL 6" Dv:~:~' & STOCKPll ~g. ON Sfr~ 271 CY 1.30
BASIN GRADING CUT 1613 CY 1.75
FII I. 65 CY 1.25
REPLACE TOPSOIL 4" D~.~-~' 182 CY 4.00
ROCK DRII I.ING & BLASTING (BULK ROCK) TIME & MATERIAL
ESTIMATED COST FOR SITE EXCAVATION & GRADING
352.30
2,822.75
81.25
728.00
$31,635.30
YORK CITY INDUSTRIAL PARK
AUGUST 4, 1997
PAGE 5
'N
SANITARY SEWER LATERAL CONSTRUCTIO (LOT #16)
6" SDR 35 PVC W/STONE BEDDING
(FROM 1LO.W. TO WITHIN 5 LF OF BLDG)
6" X 22 V: ° P.V.C. ~,BOW
6" X 45 ° P.V.C. g/.ROW
155 LF $ 22.00 $ 3,410.00
1 EA 18.00 18.00
3 EA 18.00 54.00
6" P.V.C. PLUG & MARKE~ STAKE
I EA 25.00 25.00
LOCATION TAPE
155 LF .25 38.75
6" X 6" X 4" PV WY'E
4" X45 ° PVC lz3',BOW
4 EA 25.00 100.00
4 EA 15.00 60.00
4" SDR35 PVC RISER PIPE
4 EA 35.00 140.00
4" PVC CLEAN OUTS (@ GRASS AREAS)
2 EA 25.00 50.00
CI CLEAN OUT W/CONCREIE C01 ,I.AR
(@ BITUMINOUS AREAS)
2 EA. 200.00 400.00
TRENCH ROCK EXCAVATION CHME AND MATERIAL)
ESTIMATED COST FOR SANITARY SEWER LATERAL CONSTRUCTION $4,295.75
YORK CITY INDUSTRIAL PARK
AUGUST 4, 1997
PAGE 6
STORM DRAINAGE CONSTRUCTION
STD. TYPE "Id" INLETS W/2' X 4' BOXES
#I-1 3.0 VF LS $ 720.00
I-2 5.70 VF LS 825.00
I-2A 3.0 VF LS 720.00
I-3 3.0 VF LS 720.00
I-4 5.59 VF LS 825.00
1-5 6.50 Vt: LS 925.00
1-6 3.0 VF LS 720.00
1-7 2.75 VF LS 720.00
I-8 3.0 VF LS 825.00
I-2B 5.0 VI:: LS 800.00
I4B 3.0 VF LS 720.00
I-5B 3.0 VF LS 720.00
I-3B 4.0 VF LS 975.00
COREBORE CONNECTION TO
EXISTING INLET #CB-9
1 EA LS
STD. TYPE "M" BASIN OUTLET STRUCTURE
W/9" DIAM. ORIFICE
2.50 VF LS
TYPE "DW" PRECAST CONC. ENDWAI J. WH'H
APRON & CONCRETE BLOCK DISSIPATORS
(@18" CMP)
500.00
R4 RIP RAP LINED LOW FLOW CHANNEL
12" H.D~E. PIPE
15" H.D.P.E. PIPE
18" H.D.P.E. PIPE
15" X 15" X 12" I-LD.P.E. TEE
TRENCH ROCK EXCAVATION
900.00
1 EA LS 1,100.00
24 TNS 25.00 600.00
238 LF 20.00 4J6~.00
645 LF 23.00 14,835.00
206 LF 27.00 5,562.00
1 EA LS 210.00
ESTIMATED COST FOR STORM DRAINAGE CONSTRUCTION $38,427.00
YORK CITY INDUSTRIAL PARK
AUGUST 4, 1997
PAGE 7
DRIVES & PARKING CONSTRUCTION
18" STANDARD CONCR.E'IE CURB
SAW CUT EDGE OF EXISTING STRE-'F.T
& SEAL
BITUlvKNOUS PAVEMENT: 6" 2A STONE BASE
2" ID-2 BINDER
1 W' ID-2 WEARING
SAW CUT & REMOVE EXISTING CONCRETE CURB
1170 LF $ 9.50 $11,115.00
80 LF 3.00 240.00
3715 SY 4.80
3715 SY
3715 SY
17,832.50
80 LF 5.00 400.00
ESTIMATED COST FOR DRIVES & PARKING CONSTRUCTION $29,587.00
ESTIMATED COST THIS PROPOSAL $108,113.55
YORK CITY INDUSTRIAL PARK
AUGUST 4, 1997
PAGE 8
PROVISIONS
ALL PERlVI1TS, TEST~G, BONDING, AND INSPECTION FEES WILL BE TFfE
RESPONSIBH.rrY OF THE OWNER.
ALL LAYOUT, GRADES, AND ENGI2qEERING WILL BE TI-IE RESPONS]31L1TY
OF THE OWNER.
UNSUITABLE OR UNSTABLE CONDITIONS ENCOUNTERED AT OR BELOW
SUBGRADE ELEVATIONS W'ILL E CORRECTED ON A TIME AND MATERIAL
BASIS IN ADDITION TO THE AMOUNTS QUOTED IN THIS PROPOSAL.
o
PRICES QUOTED DO NOT INCLUDE ROCK REMOVAL, ROCK 1~
ENCOUNTERED WILL BE REMOVED ON A TIME AND MATERIAL BASIS IN
ADDITION TO TI-IE AMOUNTS QUOTED IN THIS PROPOSAL.
PRICES QUOTED ARE BASED ON GRADING ON LOT #16, AND
INSTALLATION AND GRADING FOR SEDIMENT BASIN ON LOT #15.
PRICES QUOTED DO NOT INCLUDE TOPSOIL REPLACEMENT, SEEDING,
MULCHING, OR LANDSCAPING OTHER THAN AS INDICATED IN THIS
PROPOSAL.
PRICES QUOTED DO NOT INCLUDED REMOVAL OR RELOCATION OF
EXISTING UTILITIES.
o
PRICES QUOTED DO NOT INCLUDE WORK WITH THE FOLLOWING
UTILITIES GAS, WATER, ELECTRIC, PHONE, OR CABLE.
PRICES QUOTED DO NOT INCLUDE BUILDING FOOTER EXCAVATION, OR
BACKFILL, CRUSHED STONE UNDER SIDEWALKS, FLOOR SLABS, OR PADS.
10. PRICES QUOTED DO NOT INCLUDE SHORING OR BRACING OR WALLS, OR
CLEAN UP OF DEBRIS LEFt BY OTHERS.
YORK CITY INDUSTRIAL PARK
AUGUST 4, 1997
PAGE 9
11.
IF REQUIRED STONE BACKFILL WILL'gE INSTALLED AT 410.50 PER TON
ADDITIONAL.
NOTE:
BOYD E. DII.LER, INC. WILL NOT BE RESPONSIBLE FOR PAVEMENT
IRREGULARITIES, SURFACE DRAINAGE OR PAVEMF2qT FAILURE
WHEN INSTALLED BY OTHERS.
R & D DEVELOPM'ENT CO.
BOYD E. DILLER, INC.
Exhibit B
DATE: WT-].8-2M1
M{136
DOll ERMIii
4216 LI'ffl~ IWIi ~.
gJi~IS~I.I~G, PA 1711~
t717)319-1159
DATE OF ~ P~T: ~6-27-2~X
I{]TE: Only Inclu~ Ammn~ thru: 12-31-'~Y~-~ Includem Ali B~
JOB ! J{ IA{re. APPLY# DAT~ ~I6 AffT ~rl~lTIOI ~ PAIl)
17631. 41
159878.21 .M -142246.8{ 17631.41 .M .M .M .M 17631.41
EXHIBIT "B"
Exhibit C
APPLICATION AND CERTIFICATE FOR PAYMKNT PAGKIOF 2
TO (OWNKR!: DON ERWIN PROJKCT= 7E~68E YORK CITY INDUSTRIAL PARK APPLICATION NO S DATE: E2-zE-g8
4216 LITTLE RUN RD. R ~ D DEVELOPMENT C0
242 W CNOC AVE, HERSHEY PERIOD TO: E2'2E'gE
!7!!~ ~NCH!TECT'R
PROJKCT NO:
FROM (CONTRACTOR): BOYD L D!LLER, INC,
P.O. BOK O
ENOLA, PA 17~2~-~25~
CONTRACT DATE: ~8'31-97
INVOICE NO: ~R419
CONTRACT FOR: CITY LOT )IK DEVELOPMENT
................................................................ connection with the Coutract. Cont. Sheet is attached
CHANGE ORDER SUMMARY
[ ADDITIONH S [ DEDUCTIONS
CHANGE ORDERS APPROVED IN {
PREVIOOE MONTHS BT O~ER ---> ] 4~,~ {
APPROVED THIS MONTH
NUMBER ON ]DATE
DEHCRIPTION {APPROVED
C/O 3 PAVEMENT INHT { 12-31-97 944~.3~
C/O 4 ~OOF DRAINING {12-31-97 2235,7~
C/~ 5 TELEPHONE TEK { !2-3t-9v !289,I6
TOTALS { 52965.I6 {
Net change by CHANGE ORDKRH { 52965,]6
1, ORIGINAL CONTRACT SUM .................... 1~R369.~5
2. Net change by Change Orders .............. 52965.I~
3, CONTRACT SUM TO DATE [lines I+2) ......... 16t334.21
4, TOTAL COMPLKTKD AND STORED TO DATK ....... 159K?H.21
{Column G on Continuation Sheet)
a. Completed Work .....
{Column D+E on Continuation Sheet]
b, % of Stored Material ....
{Column F on Continuation Sheet)
Total Netalnage(l~ne 5a + 5b DC
Column I of Continuation Sheet)
S, TOTAL EARNED LESS RNTAINAGE .............. 159S7S.21
{Line 4 less Line 5 Total)
1. LEKS PREVIOUS CERTIFICATES FOR
PAYMENT {Line S prior Certificate),,. 142246.R~
--> B. CURRENT PAYMENT DUE ...................... 17631.41
9, BALANCE TO FINISR, PLNH RKTAINAGE
{Line 3 less Line 6}
The undersigned Contractor certifies that to the best of the Contractor's ........................................................
knowledge, information and belief the Work covered Dy this Application for
Payment has been completed in accocOance with the Contract Documents, that
all amounts have been paid by the Contractor for Work loc whirr previous
Certificates for Payment were issued and payments cecelved from the Owner,
and that current payment shown herein is now due,
CONTRACTOR: BOYD E. OILLEL [NC.
State of County of
Subscrlbe~ and sworn to
before me thls day of
Notary Public:
My Commission expires:
DATE:
ARCHITECT'S CERTIFICATE FOR PAYMENT
In accordance with the Contract Documents, based on on-site observations
and the data comprising the above app!icatlon, the Architect csctifies to
~he Owner that to the best of the Architect's knowledge~ informmhion uno
belief the Work has progressed as indicated, t~e quality of tNs work is in
sccorHance with tNe Contract Documents, and the Contractor is entitled to
payment of the AMOUNT CERTIFIED.
AMOUNT CERTIFIED ................. S
{Attach explanation if amount certified
differs from the amount applied for.
ARCHITECT:
By: DATE:
this Certificate is not negotiable. The AMOUNT CERTIFIED is payable only to the Contractor named herein. Issuance,
payment and acceptance of payment are without prejudice to any rights of the Owner DC Contractor under this Contract.
EXHIBIT "C"
PROJECT: YORE CITY INDUSTRIAL PARK
CONTRACT FOR: CITY LOT ~16 DEVELONMENT
DOM ERW[M
APPLICATI06 AND CERTIFICATE FOR PAYMENT - CONTINUATION RHEET PAGE
308 ID: 788688 APPLICATION ~0 6 DATE 82-28-98
.................... PERIOD TO: 82-28-98
INVOICE MO~ 886419 CONTRACTOR~ BOYD E, OILLER, IRC,
.................... ARCHITECT:
ARCHITECT'S PROBECT NO~
{ A { R I c I B { E [ F I U I S I I
ITEM
BO
DEBCR!PT!OR OF WORK
{ WORK COMPLETED { MATERIALS ] TOTAL ! % { I
SCHEDULED { ......................... I PRESENTLY{ COMPLETED{ I BALANCE {
VALUE { PREVIOUS { THIS { STORED m ANN STORED{(G/C){ TO FINIRH 1
} APPLICATION{ PERIOD { {MOT IN } TO DATE { { {C-Gl }
[ (D+E} [ { D OR E) [ (D+E+F) } { j
RETAINAGE
EROSION CONTROL
2 RTABILIZED COMET ENTRANCE 598,~8 59E,58 598,58
3 HILT FENCE INSTALLATION 1488,88 I488.80 2488,88 188%
4 TEMP. INLET PROTECTION 568,88 568.88 5S8.88 188%
5 TEMP. EARTH BERM 1288.88 1288,88 1888,88 188%
6 TEMP, POND STAND PIPE 488,88 488,88 488,88 188%
7 CLEAN OUT STAKE !8,88 I8,88 18,88 188%
SITE GRADING
9 CLEARING AND GRUBBING 5888,88 5888.88 5888.88 188%
18 TOPSOIL REMOVAL 3988,88 3988.8V 3988,88 188%
1I BULK EXCAVATIOH 18254,88 18254,88 18254.88 188%
I2 GRADE SITE PERIMETER 1217.88 1217.88 I217,88 t88%
t3 PERIMETER TOPHOIL REPLACE 4288.88 2148.88 1284,88 3424,88 88%
DETENTION BASIN
16 TOPBOIL REMOVAL 352,38 352.38 352.30 I88%
I7 BASIN GRADING 2984.88 2984.88 2984.88 188%
18 TOPROIL REPLACEMENT 728.88 728.88 728.88 I88%
SANITARY LATERAL
28 6" PVC LATERAL LINE 3545.75 3545.75 3545,75 I88%
21 6" CLEAN OUTR 758,88 758.88 758.88 I88%
HTORM SEWER
22 12" ADS N-12 4768.88 47S8.88 47S8.88 188%
24 !5" ADS R-12 15845,88 15845.88
25 18" ADH N-12 5562.88 5562.88 5562,88 188%
26 TYPE M INLETH 18215.88 18215,88 1821~,88 188%
27 TIE INTO EXISTING INLET 588,88 588.88 588.88 188%
28 BASLE OUTLET BTEUCTUBE 98LEV 988,88 988,88 188%
29 DW 6RDWALL 3!88.88 1188,88 1188.88 188%
38 R-A RIP HAP 688,88 68R,88 688.88 !88%
DRIVER AND PARKING
32 18' CONCRETE CURH 11115,88 11115.88 IllI5.8V
33 SAW CUT EDGES 248,88 248.88 248.88 188%
~34 6' 2A MODIFIED 17832,58 I17H6.88 6846,58 I7832,58 !88%
35 REMOVE EXISTING CURB 488.88 488,88
36 C/O 1 BULK ROCK - DR/BLAH 35469,88 35469,88 35469,88 96%
17 C/O 2 TRENCH ROCK DR/BLAR 4531,88 4531.88
8 C/O 3 PAVEMEET INSTALLATI 9448,38 39,39 9488.91 9448.38 188%
} C/O 4 ROOM DRAINIRG/EL8 2235.78 2235.78 2235,78 108%
,C/8 5 TELEPHONE TRENCH 12B9.16 I289.16 1289,16 I88%
APPLICATION TOTALS 16!334,21 142246,88 !7831,41 ,88 t59818,2I 99% I456.88 ,~8!
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
BOYD E. DILLER, INC.,
Plaintiff
Civil Action No. 02-5587
:
V. ~
DONALD H. ERWIN and ROBERT K. ERWIN,:
t./d/b/a K & D DEVELOPMENT COMPANY, :
Defendants :
A._CCEPTANCE OF SERVIC~
I, Todd R. Bm'tos, Esquire, do hereby accept service of the Complaint filed in the
above captioned matter on behalf of the Defendants, Donald H. Eawvin and Robert K.
Erwin t/d/b/a K & D Development Company, and represent that I am authorized to do so.
Stevens & Lee
P.O. Box 11670
Harrisburg, PA 17108-1670
Attorneys for Defendants
Date:
{00100942/1}
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Boyd E. Diller, Inc.,
Plaintiff
Donald H. Erwin and Robert K. Erwin,
t/d/b/a R & D Development Company,
Defendants
Docket No. 02-5587 Civil Term
Civil Action.- Law
ANSWER TO THE COMPLAINT
WITH NEW MATTER AND COUNTERCLAIM
NOTICE TO PLEAD
TO:
Craig R. Milsten, Esquire
CGA Law Firm
29 North Duke Street
York, Pennsylvania 17401
717-848-4900
You are hereby notified to file a written response to the enclosed New Matter and
Counterclaim within twenty (20) days from service hereof or a judgment may be entered against
yoll.
Date:
February 28, 2003
STEVENS & LEE
By
Mark D. Bmdshaw
Attorney I.D. No. 61975
Todd R. Bartos
Attorney I.D. No. 84279
P.O. Box 111570
Harrisburg, Pennsylvania 17108-1670
(717) 561-5242
Attorneys for Defendants
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02/28/03/SL1 315644vl/67250.002
Boyd E. Diller, Inc.,
Vo
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
Donald H. Erwin and Robert K. Erwin,
t/d/b/a R & D Development Company,
Defendants
Docket No. 02-5587 Civil Term
Civil Action - Law
ANSWER TO THE COMPLAINT
WITH NEW MATTER AND COUNTERCLAIM
AND NOW COME the Defendants, Donald H. Erwin and Robert K. Erwin,
t/d/b/a R & D Development Company ("R & D Development"), by and through their attorneys,
Stevens & Lee, and sets forth the following Answer to the Complaint with New Matter and
Counterclaim as follows:
1. Admitted upon information and belief.
2. Admitted in part, Denied in part. After reasonable investigation, the
information contained in paragraph 2 of the Complaint is presumably derived from a filing with
the Pennsylvania Department of State, the contents of which speak for themselves. To the extent
that the information contained therein is correct, it is admitted; to the extent that it is not correct,
it is denied.
3. Admitted in part, denied in part. It is admitted that the Plaintiff contracted
with Defendants to perform work, supply labor and supply materials on the York Industrial Park
Site. It is denied that the document annexed to the Complaint as Exhibit A is a tree and correct
copy of the contract as it is not signed by R & D Development. To the contrary, a written
agreement distinct from that annexed as Exhibit A was entered into by and between the parties.
A tree and correct copy of that Agreement is being sought from Defendants' files.
02/28/03/SL1 315644vl/67250.002 1
4. Admitted in part, denied in part. It is admitted that Plaintiff began working at
the York Industrial Park Site on or about September 12, 1997. It is denied that Plaintiff
completed the work in February of 1998. To the contrary, several portions of the contract were
not performed in an acceptable and workmanlike manner and ]?laintiffhas thus never
"completed" the work contemplated in the contract.
5. Admitted in part, denied in part. It is admitted that Plaintiff presented
Defendant with certain applications for payment and invoices tbr the work allegedly performed
at York Industrial Park. It is further admitted that Defendant rrtade certain payments to Plaintiff
for the work. It is denied that the document annexed to Plaintiff's Complaint as Exhibit B is tree
and correct. To the contrary, R & D Development has never seen this document and does not
accept its contents as accurate. It is further denied that the document annexed as Exhibit C to the
Complaint is a true and correct copy of an application for payment because it is unsigned,
undated and unnotarized. Finally, it is further denied that Plaintiff is owed the sum of
$17,631.41. To the contrary, Defendant does not owe any money to Plaintiff.
6. Denied. It is specifically denied that Plaintiff completed the work at York
Industrial Park without complaint from Defendant and/or that Plaintiff performed all
contingencies and conditions of its contract. To the contrary, R & D Development, through its
principals, complained numerous times about the shoddy workmanship and failure to conform to
the contract.
7. Admitted in part, denied in part. It is admitted that Plaintiffhas made several
demands upon Defendant to pay the allegedly outstanding balance of $17,631.41. It is denied
that any money is due and owing from Defendant to Plaintiff. To the contrary, Defendant does
not owe any money to Plaintiff and, as set forth below, Plaintiff irt fact owes money to
Defendant.
02/28/03/SL1 315644vl/67250.002 2
COUNT I - BREACH OF CONTRACT
8. Defendant R & D Development repeats and realleges the preceding
paragraphs of this answer as though set forth in full herein.
9. Denied. The averments set forth in paragraph 9 constitute a legal conclusion
to which no response is required. To the extent a response is required, the averments set forth in
paragraph 9 of the Complaint are denied. To the contrary, Def~endant does not owe any money to
Plaintiff and therefore cannot have breached the contract.
10. (a)-(b) Denied. The averments set forth in paragraph 10(a)-(b) constitute
a legal conclusion to which no response is required. To the extent a response is required, the
averments set forth in paragraph 10(a)-(b) of the Complaint are denied. To the contrary,
Defendant does not owe any money to Plaintiff and therefore cannot have breached the contract.
WHEREFORE, Defendant respectfully requests this Honorable Court enter
judgment in its favor and against Plaintiff, dismissing the Complaint against it with prejudice,
together with whatever further relief this Court deems just and equitable.
COUNT II - UNJUST ENRICHMENT
11. Defendant R & D Development repeats and realleges the preceding
paragraphs of this answer as though set forth in full herein.
12. Denied. The averments set forth in paragraph 12 constitute a legal
conclusion to which no response is required. To the extent a response is required, the averments
set forth in paragraph 12 of the Complaint are denied. To the contrary, Defendant does not owe
any money to Plaintiff.
13. Denied. The averments set forth in paragraph 13 constitute a legal
conclusion to which no response is required. To the extent a response is required, the averments
02/28/03/SL1 315644vl/67250.002 3
set forth in paragraph 13 of the Complaint are denied.
any money to Plaintiff.
To the contrary, Defendant does not owe
14. Denied. The averments set forth in paragraph 14 constitute a legal
conclusion to which no response is required. To the extent a response is required, the averments
set forth in paragraph 14 of the Complaint are denied. To the contrary, Defendant does not owe
any money to Plaintiff.
WHEREFORE, Defendant respectfully requests this Honorable Court enter
judgment in its favor and against Plaintiff, dismissing the Complaint against it with prejudice,
together with whatever further relief this Court deems just and equitable.
COUNT III - PROMISSORY ESTOPPEl,
15. Defendant R & D Development repeats and realleges the preceding
paragraphs of this answer as though set forth in full herein.
16. Denied. The averments set forth in paragraph 16 constitute a legal
conclusion to which no response is required. To the extent a response is required, the averments
set forth in paragraph 16 of the Complaint are denied. To the contrary, Defendant does not owe
any money to Plaintiff.
17. Denied. The averments set forth in paragraph 17 constitute a legal
conclusion to which no response is required. To the extent a response is required, the averments
set forth in paragraph 17 of the Complaint are denied. To the contrary, Defendant does not owe
any money to Plaintiff.
18. Denied. The averments set forth in paragraph 18 constitute a legal
conclusion to which no response is required. To the extent a response is required, the averments
set forth in paragraph 18 of the Complaint are denied. To the contrary, Defendant does not owe
any money to Plaintiff.
02/28/03/SL1 315644vl/67250.002 4
19. Denied. The averments set forth in paragraph 19 constitute a legal
conclusion to which no response is required. To the extent a response is required, the averments
set forth in paragraph 19 of the Complaint are denied. To the contrary, Defendant does not owe
any money to Plaintiff.
WHEREFORE, Defendant respectfully request,,; this Honorable Court enter
judgment in its favor and against Plaintiff, dismissing the Complaint against it with prejudice,
together with whatever further relief this Court deems just and equitable.
20.
21.
22.
23.
24.
25.
with Defendant.
,NEW MATTER
Plaintiff has failed to state claims upon which relief can be granted.
Plaintiffs claims are barred by the applicable statutes of limitation.
Plaintiff's claims are ban'ed by laches.
Plaintiff's claims are ban'ed by the doctrine of unclean hands.
Plaintiffs claims are barred by the equitable defense of estoppel.
Plaintiffs claims are barred due to its prior material breach of its contract
26. Plaintiffs claims are barred because the performance rendered by Plaintiff
did not conform to the contract specifications.
27. Plaintiffs claims are barred because the performance rendered by Plaintiff
was sub-standard and not performed in a workmanlike manner.
28. Plaintiffs claims are barred because the perfo~xnance rendered was below the
standard of work expected of contractors in Plaintiff's line of work.
29. Defendants are entitled to a set-off because Plaintiff failed to perform under
the contract as bargained-for by the parties in that Plaintiff did not complete all of the work and
the work that was performed Was done in an unworkmanlike manner.
02/28/03/SL1 315644vl/67250.002 5
COUNTERCLAIM
Defendants Donald H. Erwin and Robert K. Erwin, t/dgo/a R & D Development
Company, by and through their attorneys, Stevens & Lee, set forth the following counterclaim
and aver as follows:
1. On or about August 4, 1997, PlaintiffDiller ~xnd Defendant R & D entered
into a contract whereby Diller agreed to perform, and R & D Development agreed to pay for,
certain services related to construction activities for a property commonly known as "York City
Industrial Park." A true and correct copy of this written agreement cannot be located at this time
and is still being sought.
2. Plaintiffperformed some of the work specified in the contract but did so in an
unacceptable and unworkmanlike manner.
3. Plaintiff failed to perform most of the work specified in the contract.
4. These services were to include, but were not limited to, site excavation and
grading, erosion and sediment control measures, sanitary sewer c. onstruction, storm drainage
construction, drives and parking construction and the provision of footers for the foundation.
5. Additionally, plaintiff agreed to paint the lines on the asphalt.
6. Plaintiff completed most of the contract but neglected to dig the footers for
the foundation of the building, put the concrete into the footers, and otherwise provide certain
concrete work at the site. As a result of this, Defendant R&D Development was required to
expend $10,399.13 to York Concrete Company for sidewalks an~[ footers as well as an additional
amount $165.84 for additional concrete work and $320.00 for line painting to "cover" for
Plaintiff's non-performance.
7. Thus, a total of $10,884.97 is due to be paid fi:om plaintiffto defendant.
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COUNT I - BREACH OF CONTRACT
8. Defendant R & D Development repeats and realleges the preceding
paragraphs of this answer as though set forth in full herein.
9. Plaintiff and Defendants entered into a valid and binding agreement.
10. Plaintiff failed to complete its obligations under the contract while
Defendants performed all of their obligations as they became due and owing.
11. Because Plaintiff failed to fully perform the contract, Defendant R & D was
forced and will be forced to hire another contractor to complete the work and repair the poor
workmanship of the work already performed.
12. As a result of the above, Defendant R & D has and will have to expend its
own funds to fix and complete the work that should have been performed by Diller.
WHEREFORE, Defendants, Donald H. Erwin and Robert K. Erwin t/d/b/a R & D
Development Corporation, request that judgment be entered against PlaintiffDiller in an amount
exceeding $25,000, plus interest, attorneys' fees and whatever other relief this court deems just
and equitable.
Date: February 28, 2003
STEVENS & LEE
By
Attorney I.D. No. 61975
Todd R. Bartos
Attorney I.D. No. 84279
P.O. Box 11670
Harrisburg, Pennsylvania 17108-1670
(717) 561-5242
Attorneys for Defendants
7
02/28/03/SL1 315644vl/67250.002
CERTIFICATE OF SERVICE
I, TODD R. BARTOS, ESQUIRE, certify that on this date, I served a certified
tree and correct copy of the foregoing Answer to the Complaint with New Matter and
Counterclaim upon the following counsel of record, by depositing the same in the United States
mail, postage prepaid, addressed as follows:
Craig R. Milsten, Esquire
CGA Law Firm
29 North Duke Street
York, Pennsylvania 17401
Date: ~2003
Todd R. Bartos, Esquire
02/28/03/SL1 315644vl/67250.002
VF.,RIF~CATION
I, DONALD H. ERWIN, Principal orr & D Development Company, Defend~n! in ~ ~in
action, b~ng duly ~cd ~cordlng to hw, ~o~ ~d say that ~ fac~s set forth in ~he fo~in~ ~sw~ to
· e Complaint wi& New Ma~ ~d Coat.claim ~e ~e ~d co~t to ~e best of my ~owl~gc, ido~fion
~d belief.
~is V~cafion [$ made subject ~o ~e pen~tics of 18 Pa. C.S,A. ~4~4, relalin8 to ~swom
f~sifica~ion ~o au~o~.
Dated: February 28, 2003
· ~' '~ DonaldH.~n
02/'28/0]/~LI :11 $ t~44,vl ~672,50.002