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HomeMy WebLinkAbout02-55891N THE coURT OF COMMON PLEAS OF CUMBERLAND COUNTY, pENNSYLVANIA Boyd E. Diller, Inc., V. Plaintiff DocketNo. O3 -- ~ Insite Development, LLC, Defendant 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 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 AWSO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las p~tginas 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 PERDER 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 OF1CiNA EN LA DIRECCION ESCRITA ABAJO pARA AVER1GUAR 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 {00100656/1) 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. [00100056/1) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Boyd E. Diller, Inc., Plaintiff Insite Development, LLC, Defendant Docket No. ~,2- 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 Defendant, lnsite Development, LLC ("Defendant"), is a Pennsylvania limited liability company (business) organized and authorized in the Commonwealth of Pennsylvania, with its registered and/or principal office located at 4216 Little Run Road, Harrisburg, Dauphin County, Pennsylvania 17110. The Chief Executive Officer and/or Manager is Donald H. Erwin, 4216 Little Run Road, Harrisburg, Dauphin County, Pennsylvania 17110. 3. On or about April 26, 2000, 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, water line installation, paving and curb installation, site preparation and other work for a waste water treatment plant, and utility trenching The work was performed for the project known as Eagle View Mobile Home Park- Phase I and Phase II, located in Berwick Township, Adams County, Pennsylvania (See Adams County Recorder of Deeds plat book 77, page 92). A true and correct copy of Plaintiff's proposal reflecting the services to be performed is incorporated herein and attached hereto as Exhibit "A." 4. On or about June 13, 2000, Plaintiffbegan 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 of 2001. 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 Eagle View Mobile Home Park-Phase I. 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 PlaintiftTM s "AIR [Account Receivable] Job Aging and Retention" report (as of June 27, 2001), which itemizes the amounts charged and paid for the work at Eagle View Mobile Home Park- Phase I. Incorporated by reference herein and attached hereto as Exhibit "C," is a true and correct copy of the Application dated May 15, 2001, 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 Eagle View Mobile Home Park, Phase I is Twenty-Five Thousand and Five-Hundred and Fifty-One Dollars ($25,551.00). 6. Plaintiff completed the work at Eagle View Mobile Home Park-Phase l without complaint from Defendant; and Plaintiff has performed all contingencies and conditions of its contract with Defendant concerning Eagle View Mobile Home Park- Phase I. 7. Plaintiff has made a demand upon Defendant to forthwith pay the outstanding balance of Twenty-Five Thousand and Five-Hundred and Fifty-One Dollars ($25,551.00) for the work completed at Eagle View Mobile Home Park-Phase I; and there has been no promise or agreement by Defendant to do so by an agreed upon date or at all. 8. Plaintiff presented to Defendant an Application for payment for the work performed and materials supplied at Eagle View Mobile Home Park-Phase 11; and incorporated by reference herein and attached hereto as Exhib't 'D, 's a true and correct copy of the Application dated September 6, 2000, which describes and itemizes the work completed and the corresponding charges. The total amount that Defendant owes to Plaintiff for the work performed at Eagle View Mobile Home Park, Phase 11 is Two- Hundred and Fifty-Six Thousand and Eight-Hundred and Eighty-Seven Dollars and Eighty Cents ($256,887.80). 9. Plaintiff completed the work at Eagle View Mobile Home Park-Phase II without complaint from Defendant; and Plaintiff has performed all contingencies and conditions of its contract with Defendant concerning Eagle View Mobile Home Park- Phase II. 10. Plaintiff has made a demand upon Defendant to forthwith pay the outstanding balance of Two-Hundred and Fifty-Six Thousand and Eight-Hundred and Eighty-Seven Dollars and Eighty Cents ($256,887.80) for the work completed at Eagle View Mobile Home Park-Phase II~ 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 11. Plaintiffreiterates paragraphs 1 through 10 of its Complaint and incorporates same herein as though more fully set forth. 12. Defendant's failure to pay the fidl amounts due and owing to Plaintiff constitutes a breach of contract. 13. 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 Eagle View Mobile Home Park-Phase I of Twenty-Five Thousand and Five-Hundred and Fifty-One Dollars ($25,55 ~00); and b. The balance due and owing tbr the work completed and materials supplied at Eagle View Mobile Home Park-Phase II of Two- Hundred and FitSy-Six Thousand and Eight-Hundred and Eighty- Seven Dollars and Eighty Cents ($256,887.80); and c. 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 Two-Hundred and Eighty- Two Thousand and Four-Hundred and Thirty-Eight Dollars and Eighty Cents ($282,438.80), 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 I1 UNJUST ENRICHMENT 14. Plaintiff reiterates paragraphs I through 13 of its Complaint and incorporates same herein as though more tully set forth. 15. Defendant received certain services, supplies, and work from Plaintiff, as set forth above; and Defendant has to make complete payment for same. 16. 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. 17. As a result of Defendant'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 Two-Hundred and Eighty- Two Thousand and Four-Hundred and Thirty-Eight Dollars and Eighty Cents ($282,438.80), 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 I11 PROMISSORY ESTOPPEL 18. Plaintiff reiterates paragraphs 1 though 17 of its Complaint and incorporates same herein as though more fully set forth. 19. Defendant promised to pay Plaintiff for the services, supplies, and work received by Defendant as set forth above. 20. 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. 21. 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. As a result, Plaintiff has suffered a detriment for the damages as set forth 22. above. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against Defendant in the amount of Two-Hundred and Eighty- Two Thousand and Four-Hundred and Thirty-Eight Dollars and Eighty Cents ($282,438.80), 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. By: CGA Law Firm qulre~ · Es 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 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: BOYD E. DILLER, il'CC. · EXCAVATING AND PAVING CONTRACTOR · MUNICIPAL WASTE TRANSFER STATION Serving the Central PA Area Since 1940 · Site Preparation · Street Construction/Paving · Sewer Mains · Water Mains · Storm Drainage · Equipment Rental DECEMBER 10TH, 1999 REVISED JANUARY 14, 2000 REVISED FEBRUARY 15, 2000 You can dispose of your: · Demo!itJon Material · Tree Limbs & Stumps · Old Furniture · Old Appliances · Household Refuse MR. DONALD ERWIN 4216 LITTLE RUN HARRISBURG, PA 17110 PROPOSAL RE: EAGLE VIEW MOBIL HOME PARK SITE DEVELOPMENT PHASE I CONSTRUCTION PER YOUR REQUEST WE QUOTE THE FOLLOWING ITEMS OF WORK TO BE PERFORMED ON THE ABOVE MENTIONED PROJECT. EROSION CONTROL MEASURES DRAWING BY JAMES R. HOLLEY ASSOCIATION, E & S CON'I~OLS DRAWING #1,2,4,6,7, DRAWING DATE 10/3/95, LAST REVISION 9/15/97, E & S CONTROLS DRAWING 3- 7 OF 7, DATED 11/96, LAST REVISION 4/1/97 ESTIMATED AMOUNT EROSION CONTROL $38,000.00 SITE GRADING & PREPARATION SITE GRADING, CUT AND FILL, SrIXi2p TOPSOIL AND TOPSOIL REPLACEMENT TO BE DONE ALL AT ONE TIME, WITH SEEDING AND MULCH, WITH LOT GRADING. AS PER DRAWINGS BY JAMES R. 8/97, 11/24/97 HOLLEY ASSOCIATES, DRAWING #1 OF 12, DATED 8/25/97, ESTIMATED AMOUNT SITE GRADING & PREPARATION $189,500.00 CONTINUED ON PAGE 2 EXI-IIB r ~'"A" ENOLA, PA 17025 PHONE (717~ 766-84fl.a 6820 WERTZVILLE ROAD PAGE 2 EAGLE VIEW MOBIL HOME PARK DECEMBER 13, 199, REVISED JANUARY 14, 2000, REVISED FEBRUARY 16,2000 S_SANITARY SEWER INSTALL~ATION_ AS PER DRAWINGS JAMES R. HOLLEY ASSOCIATES, SANITARY SEWER COMPLETE IN PLACE FOR 114 PADS TO THE CENTER OF LOTS, MAIN SEWER AND LATERALS, PLUS MANHOLE. ESTIMATED AMOUNT SANITARY SEWER $221,000.00 ~STORM SEWER INSTALLATION STORM SEWER COMPLETE IN PLACE AS PER JAMES R. HOLLEY ASSOCIATES DRAWING # 1 OF 12, DATED 8/25/97,8/97, 11/24/97. ALL P/PE AND INLETS COMPLETE/N PLACE ESTIMATED AMOUNT STORM SEWER $150,60L00 ~WATER LINE INSTALLATION~ WATERLINE COMPLETE IN PLACE AS PER JAMES R. HOLLEY ASSOCIATES, WATERLINE DRAWINGS #1,2,5, OF 6 DATED 11/96. DRAWINGS # 3,4,6 OF 6, DATED 11/96, 7/11/97. ESTIMATED AMOUNT WATERLINE $149,000.00 _PAVI_N_G & CURB INSTALLATION STREET PAVING, BLACKTOP CURB, LINE PAINTING, PARKING AREAS, 25 DRIVEWAYS, STONED W/2" ID-2 WEARING, ALL AS PER JAMES R. HOLLEY ASSOCIATES, PLANS ESTI~IATED AMOUNT PAVING $219,582.00 CONTINUED ON PAGE 3 PAGE 3 EAGLE VIEW MOBIL HOME PARK DECEMBER 13, 1999, REVISED JANUARY 14, 2000~ REVISED FEBRUARy 16, 2000 W-~AST_EWATER TREATMENT PLANT EXCAVATION BACKFILL WITH CONCRETE PAD, SET TANKS WITH PIPING, EXCAVATION AND GRADE FOR PLANT, GRAVEL ACCESS ROAD WITH CHAIN LINK FENCE WITH GATE. COMPLETE INSTALLATION EXCEPT TREATMENT PLANT, ELECTRIC AND BUILDING ARE NOT INCLUDED. WORK AS PER JAMES R HOLLEY ASSOCIATES PLANS. ESTIMATED AMOUNT WASTEWATER TREATMENT PLANT $44,400.00 WATER TREATMENT PLANT EXCAVATION GRADING SEED EXCAVATION AND GRADING STRIPING TOPSOIL, REPLACEMENT OF TOPSOIL, SEED AND MULCH. WORK AS PER JAMES R. HOLLEY ASSOCIATES PLANS. WATER TREATMENT PLANT INSTALLATION BY OTHERS. WORK AS PER PLANS BY JAMES R. HOLLEY ASSOCIATES. ESTIMATED AMOUNT WATER TREATMENT PLANT EXcAvATiON $5700.00 UTILITY TRENCHING 8520 L.F. DIGGING AND BACKFILL, 5400 L.F. CONDUIT FOR ROAD CROSSINGS ONLY, WITH STONE BEDDING WORK AS PER JAMES R. HOLLEY ASSOCIATES PLANS. ' ESTIMATED AMOUNT UTILITY TRENCHING - $44,730.00 TOTAL AMOUNT THIS PROPOSAL $1,062,513.00 CONTINUED ON PAGE 4 PAGE 4 EAGLE VIEW MOBIL HOME PARK DECEMBER 13, 1999, REVISED JANUARY 14, 2000, PROVISION~ REVISED FEBRUARy 16, 2000 *ALL PERMITS, TESTING BONDING AND INSPECTION FEES WILL BE THE RESPONSIBILITY OF THE OWNER. *ALL LAYOUT, GRADES, AND ENGINEERING, WILL BE THE RESPONSIBILITy OF THE OWNER. *PRICES QUOTED ARE BASED ON QUANTITIES INDICATED TAKEN FROM DRAWINGS PREPARED BY IAMES R. HOLLEY & ASSOCIATES, INC. SHEETS #1 THRU #12 & #1 THRU #19 DATED REVISED 10-20-97, 11-24-97 & 4-98. *GRADING PRICES QUOTED ARE BASED ON BALANCING GRADES ON SITE. *UNSTABLE OR UNSUITABLE CONDITIONS IF ENCOUNTERED, WILL BE CORRECTED ON AN TIME AND MATERIAL BASIS ADDITIONAL. *GRADING PRICE QUOTED DOES NOT FUTUI~E PHASE FOR THE INCLUDE EXCAVATION OR GRADING INTO PHASE I CONSTRUCTiON.INSTALLATION OF THE WATER SYSTEM REQUIRED FOR PRICES QUOTED DO NOT UTILITIES. INCLUDE REMOVAL OR RELOCATION OF EXISTING *PAVING PRICES QUOTED ARE BASED ON CURRENT OIL PRICES. ANY INCREASES AFTER JULY OF 2000 WILL BE ADJUSTED IN THE PAVING PRICE QUOTED IN THIS PROPOSAL. *PIPE PRICES QUOTED DO NOT INCLUDE FULL STONE BACKFILL. IF REQUIRED STONE BACKFILL WILL BE INSTALLED AT AN ADDITIONAL COST OF $10.50/TON. *PRICES QUOTED DO NOT INCLUDE REMOVAL OF, HANDLING, OR DISPOSAL OF CONTAMINATED MATERIALS. *CLEANING, TACK COAT, OR REPAIR OF PAVING PRIOR TO PLACING OF F/aNAL SURFACE COURSE DUE TO DAMAGE CAUSED BY OTHERS IS NOT INCLUDED. *WATER *WATER AND WASTE WATER TREATMENT BUILDINGS ARE NOT INCLUDED. STAND INCLUDED. PIPE AND WASTEWATER TREATMENT PLANT ARE NOT *ELECTRICAL TO AND INSTRUMENTATION IS NOT INCLUDED. *TRAILER PARK SIDEWALKS, PATIOS, LANDSCAPING, STREET SIGN~, STREET LIGHTS OR DRIVEWAY LIGHTING IS NOT INCLUDED: *NO REGRADING OR RESEEDING A1LEAS AFTER MOBIL HOMES ARE SET. *PRICES QUOTED DO NOT INCLUDE UTILITY COMPANY FEES, PROPANE TANKS, CONCRETE FOUNDATIONS, OR CONCRETE PEDESTAL FOR ELECTRICAL WORK. CONTINUED ON PAGE 5 PAGE 5 EAGLE VIEW MOBIL HOME PARK DECEMBER 13, 1999, REVISED JANUARY 14, 2000, REVISED FEBRUARy 16, 2000 TERMS: PAYMENT IN FULL FOR WORK INVOICED NET 30 DAYS. iF PAID WITH IN 10 DAYS WE OFFER A 1% DISCOUNT. THIS PROPOSAL SHALL REMAIN FIRM FOR 60 DAYS. SHOULD YOU HAVE ANY QUESTIONS, PLEASE DON'T HESITATE TO CONTACT ME AT (717) 766-6403. THANK YOU FOR YOUR CONSIDERATION; ON THIS PROJECT. WE LOOK FORWARD TO WORKING WiTH YOU DONALD H. ERWIN BOYD E. DILLER, INC. DATE_ DA~: ~6-27-2~1 DOYD E. DILL~R, INC, A/R JOB AGING & R~T~TIqN ISle JM 7365 7365 ~6-13-88 38~.88 1588 P 627122 7365 15~ $[~ 7385 7385 97-11-~ 113189.19 15~ p 627122 7385 97-28-~ 15~ J~ 74~8 7488 87-31-~ i~89~. 1,~ p 627173 74~8 1.5~ ,I~ 74~ 7~ ~-31-~ 2~. 1~ p ~1~ 74~ ~-15-~ 1~ Jif 7~ 7~5 ~-~-~ 1~1~. 1~ p 7~1 7~5 1~-~-~ 1~ P 7~1 7~5 11-17-~ 1~ Cfi 7~4 7~2 1~-31-~ -~7. 1~ ~ 7~2 7~2 19-31-~ ~7. 1~ P 7~ 7~ 11-17-~ 1~ ~ 7518 7518 12-~-~ 1~ p ~1~ 7518 91-12-~1 1~ J~ 7~ 7~ ~-28-~1 95~. 1~ p 7~ 7~ 94-19-91 1~ ~ 7~ 7~ ~-31-~1 1~62.~ l~ ~ 7~78 7678 ~-~-91 1~ p ~ 7678 15~ P 7~ 7~7 ~-~1-91 ~136 DON 4216 LITTLE NUN Pl), (717)319-1159 HANNISS§EG, PA 17119 DATE OF LI.qT ~g: Onl~ Includes l~unts t~u: 12-31-~ Includ~ All ~1~ JOB ~ JOB ~E APPLYI DA~ 0~I~ ~ ...................... ~E~ION .................. IS ~VW ~OV~/~WIN ~p~: SUBTOTAl,: -388~9. ee -113188. -24839~. ~ -92158. e~ -529~.~ -123278. 82 - 19762. 5~ -5587§. 9~ -49323.88 25551.~ 25,551, 112~828,32 .8~-1~6277.32 25551.~ .W 25551. W EXHIBIT "B" APPLICATIo{ AND ~(OW~): ATTENTI~: 4216 LITTLE RUN RD. 1711~ 8~158~ EAHLEVW HAI~3VEM/ERWIM APPLICATION ~ 11 DATE,, PERIOD ~: ~CMITECT'S PROJ~'CT ~: I. ORIHI~AL ~MTRACT SUM .................... 11e5525, ~ 2. Wet change by Change Ordera .............. 49473. 82 3. COFfRACT SUM ~ DATE {li~ 1,2) ......... 1145~.32 4, ~ ~ffPL~ AND ~O ~ DA~ ...... ll~.~ (Column G on Contin~tion a. Complet~ Work.... . ~ (Column O+E on Continuation ~t) b. Z of S~or~ ~terial... (Colu~ F on Con~in~ti~n Total ~ainnge(lln~ Sa * 5b ~r ~lumn I of Conttn~tion ~) ....... (L~ 4 ~s Ll~ 5 Total) TOTA~ { 48473.82 I .~ 7. LESS PP~'VI~S CERTIFICATES FOR ................................................. PAYMENT {Line 6 prior Certificate).,. Wet ohange by C~ 0~ { ~.8~ ............. / --> 8. ~R~{~ PAY~ ~.. 1~4~4.32 ............... ~ ............. -- ' 9. B ~ rrmr ..... ,i'1~ ............. ~74.~ -- ' .............................. ~ ....... ~n, r~ ~AI~ ....... 25171 ~ne u~rsi~ Contr~or cert~i~ t~t to t~ ~ of ~' '~''' , (Line 3 1~ Line 6) ' ~owi~, ~or~tion ~ ...... one Uonrr~or 8 ...................... oezzez one Work cover~ b t Paymnt ~ ~ ~mn~t~ i ......... y ~s APpl~atton for ~ ........... ~' .............. ali ~ts have ~n paid by t~ Contr~or for Work for vhic~ prsvio~ ~b~rt~ and ~ ~t~t~ for ~t ~re ~ ~ ~ts r ....... orn to .... ~---: ...... :.. ~ - (x Oa~.~/) ~F X~res: ~/ ........................................... { ..................... ~_...~ ~;~ ~>. 4. ~c~ ~a~ *i~ ~ ~ ~n~, ~ on on-s" ....... ~ ~._ ,~ · .~ ~ ~v~ mppz~cau~, ~ ~t~ ~f: - ' ................ ~llel ~ W~k h~ ~ ~ tn~, - . ~ Imm ~ a~t appli~ for, ~t ~ ~ ~ ~IFI~, ~is ~i~ is not ~o~le. ~ ..... . ~: ~ DA~: ...................... J ~y rz~ ~ ~e ~ ~ ~n~actor ~der ~ ~n~a~t. EXHIBIT "C" APPLICATIOl{ AND CERTIFICATE FOg PAVIIDIT -, PROJECT: EAGLEV¥ HANOVER/ER¥IN PAGE ~ONT~CT FOR: EAGLE¥IE¥ ~OBIL I{O~E PARE ~PPLICATIOI{ {{0 I1 DATE 85-15-{{1 "===:=;:::=:="=;="=: PERIOD TO: ~-1~-~1 TO: OOl{ E~WIN I/~ICt lNG: ~7~7 COETI~LTOE: 80YO E. OILL£R.~ AECI{ITEST~ Sx#;; ~. ~0~ 4SSOC. I A I B I C I O I E I F I G I H I I I SCIIEI~LER I ................. l{O I DESCRI~IOI{OF WO~ V*"" ' ""e .... ' ....... I PPJ~EIITLYI ~LE'rERI ................................ ~ ............ !...!_o:E, , , o.~;-; ;;;,;;; ; ,~,; , ! EROSIOl{ CONTEL "EAUESS ~ aa ~2~-~ .................................................... ~ Gi~..,. ,.~.~;; ~..%";;. ~-.- l.~ ..................... ~PLZCATION TOTA~ 43812.58 1~ 48473.82 1~ I TOTAL COMPLETED AWO 1145999.32 1854954.32 65874.8~ .Se 11 ................ =. ..... b-'TORF. O TI{4T ~C~ ~HEOII{,~ VALUE 28828.32 98Z 44i21.~ ........................................................ 1~.~ := z_z~ TO {OWNER}: DON EEN!14 ........................... 4216 LITTLE RUN ED, - EABNISBURG, PA ATTENTION, P,O, EO~ J ENOLA, PA I7925-9258 i?118 PENIOD TO: 8N-31-88 C ' AN.HITECT S PROJECT NO: INVOICE NO: 887419 ' ' Jp. ncu ion is made fac puymen<, aa sho~n belo~, in ' CHANGE ORDER SUMMARY [ ..onnect,on ~]th the Contract. Cant, Sheet ie attached CHANGE ORDERS APPROVED IN PREVIOUS MONTES 8Y O~EN -.-> DESCRIPTION { APPROVED J The undereJgned Congractor certlflea thaC to the beet of the Contractor'a kno~Iedge, information and belief the Work covered by this Application fac Payment baa been completed in accordance ~lt~ g~e Contract Documents, that ail amonats have been paid by the Contractor for Work for ~hlc~ prevlouH Cartlf~catas for Payment ~ers laeued and payments received from the Owner, before me tbie ~ day of<.._~._zP~... , C>~ and that current payment ehown ~ereln le no~ due, Subacribed and nwor~to ~ '' ~ 0~')-. CONTRACt, BOT~ E~ DILLE~ ~otary Publl ~: ~ -- 0 H - · Ddle~ Nota~ Pm,h~i~ n Twp., Cumber -~ ........................................... My ~mmission Ex i land Cuun~ ...................... ~ p res Feb 24 20 C~ accordance ~igh Che <ont~ac~ Documents, based on on-line obser~a~Ions ANOinT CERTIFIED ................. s {nd ghe da<a compr{s{ng ghe above appHca~{on, ~he A~ch{Cec~ cer<{f{ee CO {Ag~ach explanag%on ~f amoun< cereal{ed :he O~ec gAat to ~he besg of the ~rchltecg's knowledge, ~nfocmagion and d{ffe~ fco~ the aaoun< 8pp]led for. ,eHef ~he Work has progressed as lnd{caged, ghe ~uaH~y of ghe ~eck is {n AECHI~EC~: ccocdance ~{g~ <he Co~ac~ Documents, and the Congcacgor ts en~lHed to ayment of the AMOUNT CEE~IFTED, By: DA~E, ~ls Cerglflcate 18 nog negotiable, The AMOUNT CENT!RIND 1s payable onl g c , .................................................. · ,z ~.u~ u~ ~ue UVURC OC <O~CCROtOC HHdeC <~18 COH<Cact, ], ORIGINAL CONTRACT SUM .................... 275739,28 Z, Net change by Change Orders .............. ,88 ], CONTRACT SUM TO DATE (lines l+Z) ......... 275738,28 4, TOTAL COMPLETED AND STORED TO DATE ....... 256897.88 {Column O an Continuation Sheet! a, Completed {ack ..... 88 [Column D+E on Continuation Sheet! b. % of Stored Nateria],.. .88 [Column Y on Continuation Sheet! Total Retalnage(llne 58 + 5b or Column ! of Contlnuation Sheet( ........ 88 6, TOTAL EAHNED LESS NETAINAGE .............. 256887,E8 (Line 4 leae Line 5 Total) 7, LESS PNEVlOUH CERTIFICATES FaR PAYMENT (Line S prior Certificate},,, .88 --> 8. CURRENT PAYMENT DUE ...................... 256NET,E8 9, B~LANCE TO FINISH, PLUS NETAINAGE ........ 18842.49 (Line ~ leas Line 6] EXHIBIT "D" ~APPLICATION AND CRHT!~ICATH ~0~ P~YMENT - CONh.,IATION SHEET PAGE PROJECT~ EAGLEVW-PH2ERWIN JOB ID~ 15EHE1 APPLICATIO}I NO 1 DATE HR-3!-i9 CONTRACT FOR: .................... PERIOD TO~ 8E-31-BH TO: DON ERwIR INVOICE NO: 887419 CONTRACTOR~ BOYD E. DILLER, IHC. .................... ARCHITECT: ARCHITECT'H PROJECT NO: ITEM NO DHHCRTPTION OF WORK ! WORK COMPLETED HCHEDULED { ......................... VALUE { PREVIOUS { THIS } APPLICATION{ PERIOD I iD+K) ! MATERIALS I TOTAL [ % { PNEBENTLY] COMPLETED { { BALANCE STORED } AND STORED { (G/C)! TO FIH!SH {NOT IN { TO DATE [ { {C-Gl D OH E) { {D+E+F) { EHOBIOH CONTROL 3 iH' SILT FENCE 3875 LF 5812~58 5812.58 5812.58 ]88% 4 TEMP INLET PROT'N 23 Et 1265.E8 1265.9E 5 BASIN STRUCTURES 2 EA 5558.88 5558.88 5558.88 188% 6 SED TRAP HTNUCTURE I gA 595.8E 595.88 595.EH 188% 7 TOPSOIL BEPL BAS 3 83HCY 3771.88 3771.88 3771.88 188% 8 SEED & ~ULCB BAH 3 LS 1835.89 1835.88 IE35.BE 188% 9 TRAPS,HWALES,BEBMS.ETC LH 15888.88 7588.88 ?588.88 58% 7~88.~8 SITE GRADING ~ PREP 12 CLEAU'G/GRUHBIHG 2.75 AC 9625.88 9625.88 9625.88 188% 13 TOPSOIL REMOVAL 27693 CY 38462.38 38462.38 38462.38 188% 14 BULK CUT 66938 CT 87919.48 82668.99 82668.88 95% 4351.48 I5 HULK FILL HR938 CY 334~9.88 31796.88 31796.88 95~ 1673.88 16 TOPSOIL REPLACE'T 27693CY 55386.88 526I?.98 52617.88 951 2769.E8 17 SITE SEEDING 26.2 AC 25676.88 24392.88 24392.88 95% 1284.98 iE 19 SANITARY SEWHU LH 21 STORM HEWER LS 23 STREET CONHTBUCTIOB LH [ APPLICATION TOTALH 275738.28 .88 256887.88 .88 25688?.88 93% 18842.48 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BOYD E. DILLER, INC., Plaintiff INSITE DEVELOPMENT, LLC, Defendant Civil Action No. 02-5589 ACCEPTANCE OF SERVICE I, Todd R. Bm-tos, Esquire, do hereby accept service of the Complaint filed in the above captioned matter on behalf of the Defendm~t Insite Development, LLC, and represent that I am authorized to do so. Date: Stevens & Lee P.O. Box 11670 Harrisburg, PA 17108-1670 Attorneys for Defendant {00100942/I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYEVANIA Boyd E. Diller, Inc., Plaintiff Insite Development, LLC, Defendant Docket No. 02-5589 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 By STEVENS & LEE Mark D. Bmdshaw Attorney 1.12). No. 61975 Todd R. Bartos Attorney I.D. No. 84279 P.O. Box 11670 Harrisburg, Pennsylvania 17108;1670 (717) 561-5242 Attomeys for Defendants 02/28/03/SLl 315700vl/65260.001 Boyd E. Diller, Inc., Vo IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff ' Docket No. 02-5589 Civil Term Insite Development, LLC, Defendant Civil Action .-Law ANSWER TO TI-IE COMPLAINT VgITIt NEW MATTER AND COUNTERCLAIM AND NOW COMES Defendant Insite Development, LLC ("Insite"), 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. 3. Admitted. 4. Admitted in part, denied in part. It is admitted that on or about June.13, 2000, Plaintiffbegan working pursuant to the contract. It is denied that Plaintiff completed work in May 2001. To the contrary, Plaintiff has yet to fully complete work in an acceptable and workmanlike manner. 5. Admitted in part, denied in part. It is admitted that from time to time Plaintiff presented Insite with applications, invoices and bills for payment. It is further admitted that from time to time Defendant made payments to Plaintiff. It is denied that the document set forth as Exhibit B to the Complaint is a tree and correct copy of the accounts receivable report. To the contrary, Insite has never seen this document before and denies the accuracy of its contents· It is denied that the document annexed to the ComplaJ[nt as Exhibit C represents a summary of the work completed and corresponding charges. To the contrary, Plaintiff was 02/28/03/SL1 315700vl/65260.001 aware that certain of the charges were disputed because the work ihad not been completed in a workmanlike manner. Insite further denies that it owes any money to Plaintiff. To the contrary, because of the defective and shoddy workmanship by Plaintiff, Defendant has expended or will expend significant sums of money in excess of $300,000 to repair the defective and shoddy work performed by Plaintiff. 6. Denied. It is denied that Plaintiff completed work at Eagle View without complaint and that Plaintiff performed all contingencies and conditions of its contract. To the contrary, Insite complained on numerous occasions to Plaintiff regarding the defective nature of the workmanship and the need to remediate the same. Because tlhe workmanship was shoddy and defective, Plaintiff has not completed its contract and has certainly not completed all of the contingencies and conditions of its contract. 7. Admitted in part, denied in part. It is admitted that Plaintiff has made demand upon Defendant to pay the alleged outstanding balance. It is denied that any money is due and owing. To the contrary, Plaintiff is indebted to Defendant in an amount in excess of $300,000. 8. Admitted in part, denied in part. It is admitted that the document annexed as Exhibit D to the Complaint is an executed application for payment regarding Eagle View Mobile Home Park, Phase II. It is denied that the sums allegedly due and owing are in fact due and owing because the work for which the application seeks payment was not performed in an acceptable and workmanlike manner. 9. Denied. It is denied that Plaintiff completed work at Eagle View without complaint and that Plaintiff performed all contingencies and conditions of its contract. To the contrary, Insite complained on numerous occasions to Plaintiff regarding the defective nature of the workmanship and the need to remediate the same. Because the workmanship was shoddy 02/28/03/SL1 315700vl/65260.001 and defective, Plaintiff has not completed its contract and has certainly not completed all of the contingencies and conditions of its contract. 10. Admitted in part, denied in part. It is admitted that Plaintiff has made demand upon Defendant to pay the alleged outstanding balance. It is denied that any money is due and owing. To the contrary, Plaintiff is indebted to Defendant in an amount in excess of $300,000. COUNT I - BREACH OF CONTRACT 11. Defendant Insite Development repeats and re:alleges 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 and therefore cannot have breached the contract. 13. (a)-(c) Denied. The averments set forth in paragraph 13(a)-(c) 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 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 14. Defendant Insite Development repeats and realleges the preceding paragraphs of this answer as if set forth at length herein. 02/28/03/SL1 315700vl/65260.001 3 15. Denied. The averments set forth in paragraph 15 constitute a legal conclusion to which no response is required. To the extent a response is required, the averments set forth in paragraph 15 of the Complaint are denied. To the contrary, Defendant does not owe any money to Plaintiff. 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. 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 18. Defendant Insite Development repeats and realleges the preceding paragraphs of this answer as if set forth at length herein. 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. 20. Denied. The averments set forth in paragraph 20 constitute a legal conclusion to which no response is required. To the extent a response is required, the averments 02/28/03/SL1 315700vl/65260.001 4 set forth in paragraph 20 of the Complaint are denied. To the contrary, Defendant does not owe any money to Plaintiff. 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. 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. 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 23. 24. 25. 26. 27. 28. with Defendant. 29. 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 barred by laches. Plaintiffs 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 barred because the performance rendered by Plaintiff did not conform to the contract specifications. 02/28/03/SL1 315700vl/65260.001 5 30. Plaintiffs claims are barred because the perfo~anance rendered by Plaintiff was sub-standard and not performed in a workmanlike manner. 31. Plaintiffs claims are barred because the performance rendered was below the standard of work expected of contractors in Plaintiffs line of work. 32. 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 Defendant Insite Development, LLC, by and through its attorneys, Stevens & Lee, sets forth the following counterclaim and avers as follows: 1. On or about April 26, 2000, Plaintiff Diller and Defendant Insite Development entered into a contract whereby Diller agreed to perform, and Insite Development agreed to pay for, certain services related to construction activities for a property commonly known as "Eagle View Mobile Home Park - Phases I and II." 2. Plaintiff performed 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 retained to perform erosion and sediment controls, storm sewer work including grading of the streets and grading of the pads, sanitary sewer work, and installation of water lines. 5. These were to be performed in accordance with the plans drawn by James R. Holley and Associates. 6. Plaintiff failed to dig the utility trenches in Phase I as was required. 02/28/03/SL1 315700vl/65260.001 7. Furthermore, half of the sewer laterals were not installed, a cul-de-sac was not finished, erosion and sedimentation, topsoil and seeding was not performed and the streets were improperly paved. 8. As to the streets, there was no stone base, no adequate bedding and incorrect macadam depth. 9. Additionally, the cul-de-sac was not graded, stoned, and blacktopped as required in the contract. 10. There continued to be emergent problems with the streets. 11. There is alligator cracking and, in certain areas, blow outs that have required immediate remediation. COUNT I - BREACH OF CONTRACT 12. Defendant Insite Development repeats and realleges the preceding paragraphs of this answer as if set forth at length herein. 13. Plaintiff and Defendant entered into a valid :md binding agreement. 14. Plaintiff failed to perform its obligations under the contract, while Defendant fulfilled its obligations under the contract as they became due mad owing. 15. Because Plaintiff failed to fully perform the contract, Insite Development was forced and will be forced to hire other contractors to complete the work and repair the poor worksmanship of the work already performed. 16. As a result of the above, Defendant Insite Development has and will have to expend its own funds to fix and complete the work that should ihave been performed by Diller. 02/25/03/SLl 315700vl/65260.001 7 WHEREFORE, Defendant Insite Development, LLC requests that judgment be entered against PlaintiffDiller in an amount in excess of $25,000,. together with interest, attorneys' fees and whatever other relief this court deems just and equitable. STEVENS & LEE 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) 561-5:242 Date: February 28, 2003 Attorneys for Defendant 02/28/03/SL1 315700vl/65260.001 8 CERTIFICATE OF SERVICE I, TODD R. BARTOS, ESQUIRE, certify that on this date, I served a certified true 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 315700vl/65260.001 _V. EBIFICATION I, DONALD H. ERWIN, pr/nc/pal of Insit¢ Development, LLC, Defendant in the withh~ action, being duly afflrmcd according to law, depose and say that the facts set forth in the forego/rig Answer with New Matter and Countercla/m are true and correct to the best of'my knowlo-d§e, information and belief. This Verification is madc subj~-t to thc penalties of 18 P'a. C.S.A. §a904, relating to unswom falsification to a~thorities. Date: February 28, 200:3 Don~ld~n 7 02,t2B/03,/S L1 31STOOvl/65260.00!