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HomeMy WebLinkAbout02-5588IN THE COURT OF COMMON PLEAS OF CLTM~ERLAND COUNTY, PENNSYLVANIA Boyd E. Diller, Inc., Plaintiff Docket No. ~. Westwood Hills Associates, LLC, Defendant Civil Action - Law NOTICE TO DEFEND You have been sued in Court. lfyou 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 he entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief'requested by the Plaintiff. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET 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/t) AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las p&ginas siguientes, debe tomar acci6n dentro de veinte (20) dias a partir de la fecha en que recibi6 la demanda y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte pot escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificaci6n pot cualquier dinero reclamado en la demanda o por cualquier otra queja o compensaci6n reclamados pot el Demandante. USTED PUEDE pERI)ER DINERO, O PROPIEDADES U OSTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE SI USTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCPdTA 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 Tel6fono No. (717) 854-8755 (0010065~/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 contact the Deaf Center at (717) 848°2585 ext. 329 or ext. 342 TDD All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. {00100656/1} IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Boyd E. Diller, Inc., Plaintiff Westwood Hills Associates, LLC, Defendant Docket No. I~,l.-,.~'gP? 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. 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. Defendant, Westwood Hills Associates, LLC, CDefendant"), is a limited liability company authorized and organized in the Commonwealth of Pennsylvania with its registered office located at RD 1, Box 368, Palmyra, Dauphin County, Pennsylvania 17110. 3. On or about July 27, 1998, Plaintiff contracted with Defendant to perform work, supply labor, and supply materials which included, but is not limited to, erosion control measures, site grading and preparation, sanitary sewer installation, storm sewer installation, and street construction. The work was performed for a residential subdevelopment known as Westwood Hills-Phase I ("Phase I"), located in East {00099528/t} Pennsboro Township, Cumberland County, Pennsylvania. A true and correct copy of Plaintiff's proposal reflecting the services performed is incorporated herein and attached hereto as Exhibit "A." 4. On or about August 24, 1998, Plaintiff began performing the work, supplying the labor, and supplying the materials to perform the work as described above; and the Plaintiff completed the work in May, 2000. 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 Westwood Hills-Phase 1. 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 of PlaintifF s "A/R [Account Receivable] Job Aging and Retention" report (as of June 7, 2001), which itemizes the amounts charged and paid for the work at Phase I. Incorporated by reference herein and attached hereto as Exhibit "C,' is a true and correct copy of the Application dated May 31, 2000 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 Phase I is Eight Thousand and Six Hundred and Thirty-Three Dollars and Ten Cents ($8,633.10). 6. Plaintiff completed the work at Phase I without complaint from Defendant; and Plaintiff has performed all contingencies and conditions of its contract with Defendant concerning Phase I. 7. Plaintiff has made a demand upon Defendant to forthwith pay the outstanding balance of Eight Thousand and Six Hundred and Thirty-Three Dollars and Ten Cents ($8,633.10) 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 l 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 Phase 1 of Eight Thousand and Six Hundred and Thirty-Three Dollars and Ten Cents ($8,633.10); 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 Eight Thousand and Six Hundred and Thirty-Three Dollars and Ten Cents ($8,633.10), 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. C_COUNT I! UNJUST ENRICHMENT 11. Plaintiff reiterates paragraphs I through 10 of'its Complaint and incorporates same herein as though more f'ully 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 Dy receiving the Denefit of the services, supplies, and work provided Dy Plaintiff without making payment for same. 14. As a result oFDef'endant's unjust enrichment, Plaintiff' has suffered 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' Eight Thousand and Six Hundred and Thirty-Three Dollars and Ten Cents ($8,633.10), plus interest and attorney's Fees, iFapplicable, in addition to any other legal or equitable relieFthat the Honorable Court deems to he proper and justified. COUNT 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 Dy 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 Eight Thousand and Six Hundred and Thirty-Three Dollars and Ten Cents ($8,633.10), 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 IV CONTRACTORS AND SUBCONTRACTORS PAYMENT ACT 20. Plaintiff reiterates paragraphs 1 though 19 of its Complaint and incorporates same herein as though more fully set forth. 21. Plaintiff avers, upon information and belief, that six (6) or more residential units would have been under construction on the real property of Phase I. 22. Defendant has not paid Plaintiff' either under the terms of the construction contract, following the presentation of the last nnpaid progress invoice, or the submission of the final invoice for payment in full upon completion of the work at Phase I. 23. It has been more than twenty (20) days since Defendant has received the last progress invoice or final invoice, and Defendant has not paid the outstanding balance. 24. Defendant asserts the following claims and damages pursuant to the Pennsylvania Contractors and Subcontractors Payment Act, 73 P.S. Sections 501 et seq.: a. the payment of the outstanding balance, as stated above, that Defendant owes based on the work performed and materials supplied at Phase I; b. after the twenty-seventh (27th) day when the last unpaid progress invoice or final invoice was due after delivery, whichever is earlier, one percent (1%) interest per month, or fraction of the month, from the time when the payment is due and owing from the Defendant through the present and until Plaintiff is paid; c. a penalty of one percent (1%) per month of the amount that was wrongfully withheld: and d. reasonable attorney fees, in an amount to be determined by the Court or arbitrator, together with expenses incurred to collect and litigate upon the debt. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against Defendant in the amount of Eight Thousand and Six ~ 0 Hundred and Thirty-Three Dollars and Ten Cents ($8,63-~. 1 ), plus interest, penalties and attorney fees, in addition to any other legal or equitable relief that the Honorable Court deems to be proper and justified. CGA Law Firm Countess Gilbert Andrews P.C Pa. Supreme Ct. No. 77065 Christopher L. Herrington, Esquire Pa. Supreme Ct. No. 82796 Attorneys for Plaintiff 29 North Duke Street York, PA 17401 (717) 848-4900 VERIFICATION. I, the undersigxted, 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 unsworu falsification to authorities. Dated: BOYD E. DILLER, 1NC. · Site Preparation · Street Construction/Paving · Sewer Mains · Water Mains · Storm Drainage · Equipment Rental IULY 25, 199~ (REVISED) o EXCAVATING AND PAVING CONTRACTOR · MUNICIPAL WASTE TRANSFER STATION serving the Contra~ PA Area Since '/940 You can dispose of your: · Demolition Material · Tree Limbs & Stump · Old Furniture · Old Appliances · Household Refuse WESTWOOD HILLS ASSOCIATES, INC. RD ~1, BOX 368 PALIvFfRA, PA 17078 R_E: WESTWOOD HILLS PHASE I CONSTRUCTION pROPOSAL PER YOUR REQUEST WE ARE PLEASED TO QUOTE TIlE FOLLOWING ITEMS OF WORK TO BE pERFORMED ON TI-tE ABOVE MENTIONED PROTECT. E~OSI_ ON CONTROL MEAS!JRES_ 167 SY $ 4.00 $ 668.00 STABILIZED CONSTRUCTION ENTRANCE 17 EA 45.00 765.00 TEMPORARY INLET pROTECTION 1,807 LF 1.50 2,710.50 18" SILT FENCE INSTALLATiON 3.0 EA 900.00 2,700.00 TEMPORARY SEDIMENT TRAPS (3) 1,665.00 TEMPORARY oUTLET STRucTURES (3) 3.0 EA 555.00 1,280 LF 4.30 - 5,504.00 GRASS LINED SWA! .AS ESTIMATED AMOUNT EROSION CONTROL $14,012.50 EXHIBIT "A" \ PAGE ~ £. DIOR, IRC. i~-~-2~1 A/~ ~OB AGING AR ETENTIOa AR-Rll DATE: ~'312 yES'{~IO0{) BILLS ASSOCIATES DO~ ERWIN 42/6 LIT~1,E RUN ROAD ~4~ISRO~, PA 17110 N~: Only Include~Amount~+-hru: 30B f 300 0~ ~PLY! BATE (7171319-11§9 BA~ OF LAST PNT: 10-18-1999 12-31-99~ Includes All Balances ORIG ~T RET~TIOW ANT PAID BALAW~ CILRREI~T OVER 3~ OVER 6~ OVER ~ OVER 12~ ~17 YKSTWOOB HILLS SUPER: ~17~ Jl~ 7357 7357 ~5-31-~ 8633,1~ 8633.10 ~17~ 3M 7~ 7~ ~-~-~ ~' ~ ~17~ P 1~ 7~ ~-~-~ '~'N ~17~ P ~ ~ ~.~.~ -i~.~ ~17~ 3B 6752 6~ 12-}~ ~4.~ ~17~ P ~3 6~ ~-~-~ -4~.~ {17~ 3B 6719 6719 11-~98 ~.~ ~7{ P ~71~ 6719 12-~-98 -9~.~ ~17~ ~ ~1 ~1 1~ ~.1~ 8633.10 98 -48429 4~ 6.581 ~9-11- ' SUBTOTAl,: 296614, 35 , ~ -287981.25 8633. ID · ~ · ~ ' ~ ' ~ 8633. EXHIBIT "B" HC .1, PHCJECT EO~ &TTE)ITIO}h ~ ~O~. .ITH DH~HSO, M..T .............................................................. c0~TR ....... . ........................................ . .... ~ ,~. o.,,meat, as shown ~elow~ in ~on~ection with the Contract, Coat. Sheet is attached CONTRACTOR'S &RPLICATION FOR PAYMENT ............ ] 218724,5~ ORDHHS APPHOVRD APPHOVED TSIS HO~TH EU~BEH OH DESCRIPTION " ......... ' TOTALS { 98819,88 [ .88 , i Net change by CHANGE OHUgHE i 9881938 .......... The nnder)lgned Contractor certif:es that to the host of the Contractor's knowledge, lnfoematlon and belief the Work covered by this Application for Payment has been completed in accordance with the Contract Documents, thmt l. OHIG!NAL CONTRACT SUH .................... L Net chnnge by Change Orderz .............. 9~E19.89 3, CONTRACT SUM TO DATE {lines 1+2) ......... 386743,58 4, TOTAL COMPLETED AND HTOReD TO DATE ....... 29661~,35 [Column U on Confirmation Hheet) 5, RETAIN~GE: n, Completed Wnrk .... 8~ {Column D+E on Continuation Sheet) ~, % of Stored Material .... 88 (Column ~ on Contlnmatlon Sheet) Total Retalna~e(!lne 5a + 5~ or Column I of Continuation Sheet) ........ 88 6, TO~L gARBED LESS RETAIBAGR .............. 296614.35 {Line 4 less Line 5 Total) l. LESR PREVIOUS CERTIFIC~YES FOR P~VMENT {Line 6 prior Certificate),,, 28?981.25 8633,18 --> R, CURREHT PAYMENY DUE ...................... 9, BALANCE TO F[EISH, PLUS HEIAIHAOE ........ 18!29,15 all amo~lnts have been pnid by the Contractor for Work for which previous Certificated for Payment were lssned and payments received from the Owner, and that current payment ~hown hecate is now d~le. "lC ' tadai Seal ...... ~ ..... ~? Msmbe~ Pennsy~m ~lanon o{ Notaries In accordance uit~ t~e Contract Documents, ~sed ou on-site ObHecvationH ~MOUBT CERTIFIED ................. and the data compctHing t~e above application, the ~cc~itect certifies to {Attach e~planatlon If amoant certified tho Owner that to the best of the. Architect's knowledge, informer{da and belief the Work ~ms progressed aa indicated, the quality of the work iH in accordance ~ith the Cnatract Doc~lments, and th~ Contractor ia entitled to before me th!s....~._, day of payment of the }MOUNT CERYI?IED. Cont~a.,.o. named heceln, !..sunnce, Certificate is not negotlnMe, The AMOUNT ~]~ "} ~n ls pays~le culy to the I,,, Uayment . __~_~.~ ......~ ............... L ................ ;'~H~""~'" ....... differs from the amonnt npp!led fur ARCHITECT: RPPLTCA~TOR AND CEP~I~[C~TE FOE ~&Y~ENT - COHT!RH~TIOM REEET ...... ] ..................................................... . OOR tD~ E81788 RpPL[CATIOR MO ? DRTE 85-31-88 PROOECT: NERTWO~O EILL$ PERIOD TO: , , un S INVOICE HO: 8HV357 CONTRACTOR: BOYD R. D!LLER, IBC. TO: ~E.,T~OOO .... L~ ASHOCIHTEH ARCHITECT: ARCHITECT'S PRO3ECT NO: ................. ~ .......... ........... ~ ............................ : .............. T ........ .................. 2 .......... ~ c { D { E { F { ., , .................... :.. ' - ................................................. TOTAL ....... WORE COMPLETED MATERIALS t - __ MO { nEECu!pT~°N OF NOBK V~u= ~pPLICATIO~i PERIOD {HOT IR I ?0 . I ID+E} ] , D OR E) { (D+E+F) { t ..................... EROSIOM CONTROL 3 THMP. INLET PROTECTION 765.88 765.88 4 18' HILT FENCE 27!8.58 2718.58 6 TEMP. O~TLE? STElJCTUREH 1665.88 .6H~.88 SITE GRADIRG ~ PREP. 9 CLEARING H GRUBBIMG 7188.88 ?188.88 18 6" TOPSOIL REMOVAL 3914,98 3914.98 11 SITE-GRADIMO - CUT II~KH S8 1196H,68 12 SITE GRADING - FILL 1718 58 1319.58 13 SITE GRADE - STOCKPILE 2564.~8 2564.88 14 JOB MOBILIZATION 15~8.{~ 1588.88 IR R' EDR-35 N!REDDI~U 38545.28 38545.2{ !7 18' SDR-35 W/BEDDING 1 18~ 48 11386.48 I8 8' X H' ~Y8 BRA}ICH 2188.88 21~.H8 ~ .55 22643 55 19 4 FT STAND MANHOLES ~H43 21 REMOVE EXISTING MAMHOLE 858.88 858.88 22 TIE INTO EKIRTIMU MANHOLE 458.88 458.8H STORM SEWER 24 1S' CMP 1H GA 19K28.88 19828.88 25 18' ENO SECTIOM 115.~8 115.88 27 4S" END SECTION 3215.~8 3216.88 28 R-4 RIP RAP 988.8~ 988.88 29 TYPE S IMLET (STAMD~RD) 949~.8~ 9498.88 31 TYPE N INLET 144~.~E 1448.88 STREET CONRTEUCTIOB 32 2 FT ROLLED CORE 11588.75 11588.75 34 8" 3A MODIFIED 14884.65 14884.65 35 2" BIRDER COURSE 11727.38 ...... 38 1 1/2' NEARIHG COURSE 9772.75 37 SEAL CURB LIME 355.48 ~--3H~-C~,U'~TERLINE IHHTALL 639S.$9 6398.98 48 CIO 3 TRENCH ROCK [HAMITA n~7~ ~ 668.88 765.88 2718.58 2788.88 1665.88 5584,88 7188.88 1888 3914.98 1888 11968.68 1888 1718.58 1888 2564.88 1888 38545.28 11185.48 2188.88 22643.55 19828.98 1888 -- 115.88 !888 1888 3216.88 1888 1~85 1158835 14284.55 11727.38 6398.88 9772.75 356.48 ~PPSICATION 5ND CERTI~i~TE ~OR PBYMRNT_ - ~n,~r~?~,..~.~.~..~.~ S~EET PAGE ............................... % ................................... ~ ................................................................ D~O~C'. WERTWOOD RILLS JOB ID* 89178~ APPLICATIORNO ? DATE CONTRACT FOR: SITE HEV{LOPMEHT .................... PERIOD TO: TO: NEST~OOD HILLH ASHDC!ATES I}]VOICE NO: 897357 CONTRACTOR: BOYD E. D!LLEN, IRC. .................... ARCHITECT: ARCHITECT'S PNOSE~T HO: IA'}' S '! C [ O ! E { F { o { H [ { WORK COMPLETED [ MATERIALS { TOTAL % { { ITEM { SCHEDULED ......................... { PREHEHTLY { COMPLETEU { BALANCE [ }lO DESCRIPTION OF {OBK [ VALUE PREVIOUB [ TSIB ] STOHRD { AND STOHHD (G/C){ TO FINISH RETAINAGE [ I APPLICATIOHI PERIOO { {HOT IN { TO DAYS } [ ] . {D+E] ] { D OH E) { (D+E+F} { 41 C/O 4 RATER SERVICE TAILR 674~.89 6749.09 6749.88 I99% { 42 C/O ~ MISC. RITE DHEHH UP 6864.59 I35.78 6728.89 6864.58 188% [ 43 C/O 6'GAS LIRE TREHCHING 4994.38 3990.88. !99~.39 ~98~.30 198% { APPLICATIO~ TOTALS 38H743.59 287981.25 8633.18 .88 296614.35 97% 18!29.I5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BOYD E. DILLER, INC., Plaintiff Vo WESTWOOD HILLS ASSOCIATES, LLC Defendant Civil Action No. 02-5588 ACCEPTANCE OF SERVICE I, Todd R. Bm~ros, Esquire, do hereby accept service of the Complaint filed in the above captioned matter on behalf of the Defendant Westwood Hills Associates, LLC, and represent that I am authorized to do so. Date: /~'-/I/~-'~ Stevens & Lee P.O. Box 11670 Han'isburg, PA 17108-1670 Attorneys for Defendant (00100942/1) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Boyd E. Diller, Inc., Plaintiff Vo Westwood Hills Associates, LLC, Defendant Docket No. 02-5588 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 Date: February 28, 2003 STEVENS & LEE By Mark D. Bradshaw 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 Defbndant 02/28/03/SL1 315665vi/68380.004 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Boyd E. Diller, Inc., : Plaintiff : : Docket No. 02-5587 Civil Term V. ~ Donald H. Erwin and Robert K. Erwin, : t/d/b/a R & D Development Company, : Defendants : Civil Action- Law ANSWER TO TIlE COMPLAINT WITII NEW MATTER AND COUNTERCLAIM AND NOW COMES Defendant Westwood Hill.,; Associates, LLC ("Westwood Hills"), by and through its 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. 3. Admitted in part, denied in part. Westwood Hills admits that on or about July 27, 1998, the parties entered into a contract for Plaintiff to perform certain services for Defendant in the development known as Westwood Hills, Phase I. Westwood Hills denies that the document attached as Exhibit A to the Complaint is a true antd correct copy of the contract entered into between the parties. To the contrary, it is a one-page document titled "Proposal" that does not have any signatures or any other evidence that the proposal was accepted as A true and correct copy of the signed contract is being sought by Defendant from its written. files. 4. Admitted in part, denied in part. Westwood Hills admits that on or about August 24, 1998, Plaintiff began performing certain work at Westwood Hills. Westwood Hills denies that Plaintiff completed the work in May 2000. To the contrary, Plaintiff has yet to complete the work in an acceptable and workmanlike manner and, as a result, Westwood Hills 1 02/28/03/SL1 315665vl/68380.004 has been forced to hire other contractors to "cover" for the work that should have been performed by Plaintiff. 5. Admitted in part, denied in part. It is admitted that Plaintiff presented Defendant with invoices and applications for payment from time to time. It is denied that the document annexed to the Complaint as Exhibit B is a tree and correct representation of the payment history. To the contrary, it is a document that has never been seen by Westwood Hills and therefore Westwood Hills denies the accuracy of its conten'ts. Furthermore, Westwood Hills admits that Exhibit C to the Complaint is page 1 of an application for payment dated May 31, 2000. However, there is no backup documentation attached to the application for payment and therefore Westwood Hills denies that it is a tree and correct copy of the entire application. Furthermore, Westwood Hills does not owe any money to Plaintiff and, as set forth below, Plaintiff in fact owes money to Westwood Hills in excess of the amount claimed. 6. Denied. It is denied that Plaintiff completed, the work at Phase I without complaint from Defendant and Plaintiff performed all contingencies and conditions of its contract. To the contrary, Plaintiff has yet to complete the work: in Phase I in an acceptable and workmanlike manner and Plaintiffreceived multiple complaints from Westwood Hills regarding its failure to perform in an acceptable and workmanlike manner. 7. Admitted in part, denied in part. Westwood Hills admits that Plaintiff has made demands upon it for payment of sums allegedly due and o'Mng. However, Westwood Hills denies owing those sums and, as set forth below, Plaintiff is actually indebted to Defendant. COUNT I - BREACH OF CONTRACT 8. Defendant Westwood Hills repeats and realleges the preceding paragraphs of this answer as if set forth at length herein. 2 02/28/03/SL1 315665vl/68380.004 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, Defendant does not owe any money to Plaintiff and therefore cannot have breached the contract. 10. Denied. The averments set forth in paragraph 10 constitute a legal conclusion to which no response is required. To the extent a response is required, the averments set forth in paragraph 10 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 Westwood Hills repeats and realleges the preceding paragraphs of this answer as if set forth at length 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 set forth in paragraph 13 of the Complaint are denied. To the contrary, Defendant does not owe any money to Plaintiff. 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 02/28/03/SL1 315665vl/68380.004 3 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 Westwood Hills repeats and realleges the preceding paragraphs of this answer as if set forth at length 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. 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. 4 02/28/03/SL1 315665vl/68380.004 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 IV - CONTRACTORS AND SUBCONTRACTORS PAYMENT ACT 20. Defendant Westwood Hills repeats and realleges the preceding paragraphs of this answer as if set forth at length herein. 21. Denied. The averments set forth in paragraph 21 constitute a legal conclusion to which no response is required. To the extent a response is required, the averments set forth in paragraph 21 of the Complaint are denied. To the contrary, Defendant does not owe any money to Plaintiff and therefore cannot have violated the Act. 22. Denied. The averments set forth in paragraph 22 constitute a legal conclusion to which no response is required. To the extent a response is required, the averments set forth in paragraph 22 of the Complaint are denied. To the contrary, Defendant does not owe any money to Plaintiff and therefore cannot have violated the Act. 23. Denied. The averments set forth in paragraph 23 constitute a legal conclusion to which no response is required. To the extent a response is required, the averments set forth in paragraph 23 of the Complaint are denied. To the contrary, Defendant does not owe any money to Plaintiff and therefore cannot have violated the Act. 24. (a)-(d) Denied. The averments set forth in paragraph 24(a)-(d) constitute a legal conclusion to which no response is required. To the extent a response is required, the averments set forth in paragraph 24(a)-(d) of the Complaint are ,denied. To the contrary, Defendant does not owe any money to Plaintiff and therefore cannot have violated the Act. 5 02/28/03/SL1 315665vl/68380.004 25. 26. 27. 28. 29. 30. with Defendant. 31. 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. NEW MATTER Plaintiff has failed to state claims upon which relief can be granted. Plaintiffs claims are barred by the applicable statutes of limitation. Plaintiffs claims are ban'ed by laches. Plaintiff's claims are barred 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 Plaintiffs claims are ban'ed because the performance rendered by Plaintiff did not conform to the contract specifications. 32. Plaintiffs claims are ban'ed because the pertbrmance rendered by Plaintiff was sub-standard and not performed in a workmanlike manner. 33. Plaintiffs claims are ban'ed because the perfbrmance rendered was below the standard of work expected of contractors in Plaintiff's line of work. 34. Defendant is 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. COUNTERCLAIM AND NOW COMES Defendant Westwood Hills Associates, LLC, by and through its attorneys, Stevens & Lee, P.C., and sets forth the following counterclaim and aver as follows: 6 02/28/03/SL1 315665vl/68380.004 1. On or about July 27, 1998, PlaintiffDiller and Defendant Westwood Hills entered into a contract whereby Diller agreed to perform, and Westwood Hills agreed to pay for, certain services related to construction activities for a property commonly known as "Westwood Hills - Phase I." A tree and correct copy of this Agreement is being sought in Defendant's files. 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. Plaintiff was hired to perform certain grading, top-soiling and seeding work, gas line trenching, sewer placement, clearing and grubbing and rough grading of the Westwood Hills phases at issue. 5. Plaintiff failed to perform its paving, stoning of the streets and first course of blacktop, 1,000 linear feet of curbing and the sewer line, storm sewer, street cut into subgrade, curb preparation and finish grading. 6. Finally, in or about September 2001, the Conservation District submitted a notice of violation to Westwood Hills Associates for wetlands violations caused by Plaintiff. Plaintiff performed cleating and grading work in an area that had been designated as wetland on the site plans. COUNT I - BREACH OF CONTRACT 7. Defendant Westwood Hills repeats and realleges the preceding paragraphs of this answer as if set forth at length herein. 8. Plaintiff and Defendant entered into a valid and binding agreement. 9. Plaintiff failed to perform its obligations under the contract, while Defendant fulfilled its obligations under the contract as they became due and owing. 7 02/28/03/SL! 315665vl/68380.004 10. Because Plaintiff failed to fully perform the contract, Defendant Westwood Hills was forced and will be forced to hire other contractors to cover and complete the work and repair the poor workmanship of the work already performed. 11. As a result of the above, Defendant Westwood Hills has and will have to expend its own funds to fix and complete the work that should have been performed by Diller. WHEREFORE, Defendant Westwood Hills Associates, LLC requests that judgment be entered against Plaintiff Diller in an amount in excess of $25,000, plus interest, attorneys' fees and whatever other relief this court deems just and equitable. STEVENS & LEE Date: February 28, 2003 By Mark D. Bradshaw Attorney I..D. No. 61975 Todd R. B.artos Attorney ID. No. 84279 P.O. Box 11670 Harrisburg, Pennsylvania 17108-1670 (717) 561-5242 Attorneys for Defi,~ndants 8 02/25/03/SL1 315665vl/68380.004 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: F~~003 Todd R. Bartos, Esquire 02/28/03/SL1 315665vl/68380.004 VERIFICATION I, DONALD H. ERWIN, Principal of Westwood Hills Associates, LLC, Defendant in the within action, being duly affirmed sccording to law, depose and say that thc facts set forth in the foregoing Answer with New Matier and Counterclaim are tree and correct to thc best of my knowledge, information and belief. This Verification is mad~ subject io the penalties of 18 pa. C.S.A. §490~,, relating to unswom falsification to authorities. Dated: Fcbrvary28, 2003 O~/SL1 31~6~5vl/~$380.004 Household Finance Consumer Discount Company VS Dennis G. Deitch and Sharon L. Deitch In The Court of Common Pleas of Cumberland County, Pennsylvania Writ No. 2002-5558 Civil Term R. Thomas Kline, Sheriff, who being duly sworn according to law, states this writ is returned STAYED pursuant to instructions from Attorney Terrence McCabe. SherifFs Costs: Docketing 30.00 Poundage 144.00 Surcharge 30.00 Law Library .50 Prothonotary 1.00 Mileage 8.28 Levy 15.00 Posting Handbills 15.00 Advertising 15.00 Law Journal 274.70 Patriot News 216.52 Share of Bills 25.24 $ 798.76 paid by attorney 6/09/03 Sworn and subscribed to before me So Answers: This /~?~ dayof(~,, R. Shofiff Thomas Kline, Prothonotary Real Estate Deputy THE PATRIOT NEWS THESUNDAY PATRIOT NEWS Proof of Publication UnderAct No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin} ss JOSEPH A. DENNISON being duly sworn according to law, deposes and says: That he is the Asst. Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot-News and The Sunday Patriot-News newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Metro editions which appeared on the 22nd and 29th day(s) of April and the 6th day(s) of May 2003. That neither he nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book 'M", Volume 14, Page 317. pURl AL1 W~st of LR. of L o a stake; f~t toa th~c~ 1 Sworn to and subsc~ b~fore.~,~.. 14th day~l~VZ~ A.D. NotadalSeai // ~ /~/~ /~// ~- ~ Ci~ ~ ~sburg, Dau~in Coun~ I M~A~y PHR/I~ -- My ~m~ion Ex~r~ June 6, 2~ . L ~ ~ ~ - 'x '-- ..... ~m~,Pe~s~niaAs~fion~N~sMY commission e p~res June 6, 2006 CUMBERLAND COUNTY SHERIFFS OFFICE CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA, 17013 Statement of Advertising Costs To THE PATRIOT-NEWS CO., Dr. For publishing the notice or publication attached hereto on the above stated dates Probating same Notary Fee(s) Total $ 214.77 $ 1.75 $ 216.52 Publisher's Receipt for Advertising Cost publisher of The Patriot-News and The Sunday Patriot-News, newspapers of general receipt of the aforesaid notice and publication costs and certifies that the same have t~71; Cagi~ PA 17013, " PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.1784 STATE OF PENNSYLVANIA : : COUNTY OF CUMBERLAND : SS. Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, viz: APRIL 25, MAY 2, 9, 2003 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true. REAL F~TA'I~ SAL~ NO. 49 Wilt No. 2002-5558 Civil Household Finance Consumer Discount Company VS, Dennis G. Deitch and Sharon L. Deitch Atty.: Terrence McCabe ALL THAT CERTAIN tract of land situate in West Pennsboro Town- ship, Cumberland County. pennsyl- vania, hounded and described as follows: BEGINNING at an tron pla la the center line of L.R. #21034 leading from Plainfield to Greason, which pin In North 4 degrees 48 minutes East 210 feet from the center line of Township Road #T-446; thence by other land of Lester Gerald'I'hmn- ma and wife, North 85 degrees 12 minutes West 210 feet to a stake; thence by the same, North 4 de- grees 48 minutes East. 195 feet to a stake; thence by the same. South 85 degrees 12 minutes East. 210 feet to a pin in the center line of L.R. #21034; thence by the center line of said road, South 4 degrees 48 minutes West, 195 feet to the place of beginning: contairdng 40,- 950 and being described according to a survey thereof by Ncel B. Smith, R.S., dated September 8, 1972. a copy of which is attached hereto as a part of this deed. BEING subject to a building set back llae, which is 40 feet West of tor SWORN TO AND SUBSCRIBED before me this 9 _day of MAY, 2003 k~;GINNING at an Leon pin in the center line of L.R. #21034 leading from Plainfield to Grcason. which pin in North 4 degrees 48 minutes East 210 feet from the center line of Township Road #T-446; thence by other land of Lester Gerald 'Ihum- m and wife, North 85 degrees 12 minutes West 210 feet to a stake: thence by the same, North 4 de- grees 48 minutes East, 195 feet to a st~ke; thence by the same, South 85 degrees 12 minutes East, 210 feet to a pin in the center line of L.R, #21034; thence by the center line of said road. South 4 degrees 48 minutes West, 195 feet to the place of beginning; containing 40,- 950 and being described according to a surv~ thereof by Noel B. Smith, R.S., dated September 8, 1972, a copy of which is attached hereto as a part of this deed. BEING subject to a building set back line, which is 40 feet West of the proposed right of way linc of L.R. #21034. which latter line is 25 feet West of the existing center line of said road. TITLE TO SAID PREMISES IS VESTED IN Dennis G. Deltch and Sharon L. Deitch. his wife, Deed from [.ester C~rald Thumma and Gayle Ruth Thumma, his wife, Deed dated Septamber 26, 1972, recorded Sep- tember 26, 1972, in Deed V-24, Page 253. BEING KNOWN AS 136 Greason Road, Carlisle, PA 17013. TAX MAP PARCEL NUMBER: 46-07-0475-028A.