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MASON-NORTON COMPANY, INC.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
CIVIL ACTION-LAW
vs.
FRIES CONSTRUCTION
MANAGEMENT, INC, AND
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendants
NO, 00 - -'19)10
dOtL TfiA..nt
NOTICE
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 have been served, To
defend against the aforementioned claims, a written appearance stating your defenses and objections must
be entered and filed in writing by you, the defendant, or by an attorney. You are warned that if you fail to
take action against these claims, the court may proceed without you and a judgement for any money
claimed in the complaint or for any other claim required by the plaintiff may be entered against you by the
court without further notice. You may lose money, 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,
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013 n (717) 249-3166 (800) 990-9108
NOTICIA
Le han demandado a usted en la corte, Si usted quiere defenderse de estas damandas expuastas
en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la
notificacion, Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la
corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea
avisadoque si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin
previo aviso 0 notificaciGn y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted
puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted.
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LLEVE ESTA DEMANDAA UN ABODAGO IMMEDIATAMENTE. SI NO TIENNE
ABOGAD 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN
PERSONA 0 LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA
ESCRIDA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA
LEGAL:'
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013 -- (717) 249-3166 (800) 990-9108
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MASON-NORTON COMPANY, INC.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
vs.
FRIES CONSTRUCTION
MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendants
CIVIL ACTION-LAW
NO. (ro. 'I9.3~ ~-J.Lko-
COMPLAINT
1. The Plaintiff is Mason-Norton Company, Inc., a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania with an address of 310
South Tenth Street, Lemoyne, Cumberland County, Pennsylvania 17043.
2. The Defendant, Fries Construction Management, Inc. (hereinafter Fries), is an
entity duly organized and existing under the laws of the Commonwealth of Pennsylvania,
with an address of 459 Lancaster Avenue, Frazer, Chester County, Pennsylvania 19355,
3. The Defendant, Fidelity and Deposit Company of Maryland is engaged in the
insurance business, which includes the fumishing of surety bonds, having an address of
720 Grant Building, Pittsburgh, Pennsylvania 15219.
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4. On or about December 17, 1998, Plaintiff and Defendant Fries entered into an
agreement for the purchase and delivery of certain items, as more fully set forth and
described on the quotation prepared by the Plaintiff, which is attached hereto as Exhibit
"A", which quotation was confirmed by the Defendant via purchase order No. 1410 as noted
thereon, attached hereto as Exhibit "E".
5. Pursuant to the terms of the Exhibits "A" and "E", the contract between the
party was formed in Cumberland County, Pennsylvania, upon acknowledgment by the
Plaintiff on July 15,1999. A copy of the Acknowledgment is attached hereto and made a
part hereof as Exhibit "C".
6. The items were shipped and delivered by the Plaintiff to the Defendant Fries, and
final payment was due and owing 30 days thereafter, pursuant to the terms and conditions
of the parties' contract.
7. The Plaintiff billed the Defendant Fries for the full amount of the items, after
delivery, as stated on the invoices, a copies of which are attached as Exhibit "D". Three of
the invoices were paid, leaving a balance due on the remaining invoice of $9,858.00.
8. Pursuant to the terms of the contract, interest accrued at the rate of 12 percent
per annum, 30 days after each invoice. In addition, Plaintiff is entitled to reasonable
attorneys fees under the terms of the contract.
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9. The Plaintiff has made partial payment on account of the invoices, leaving a
balance due of $9,858.00, plus continuing interest, as indicated on the statement attached
hereto and made a part hereof as Exhibit "D".
10. Despite demand, the Defendant Fries has failed and refused to pay the
aforementioned unpaid balance plus interest as aforesaid.
COUNT I
MASON-NORTON COMPANY V. FRIES CONSTRUCTION MANAGEMENT. INC.
11. Paragraphs 1 through 10 are incorporated herein by reference as if fully set forth
at length,
12. By reason of the contract with the Plaintiff, Defendant Fries is liable to the
.
Plaintiff for the aforesaid unpaid balance and interest.
WHEREFORE, the Plaintiff requests this Honorable Court to enter judgment in favor
of the Plaintiff and against the Defendant Fries in the amount of $9,858.00 plus continuing
interest at the rate of 12 percent per annum, plus reasonable and necessary attorneys fees
and costs of this proceeding.
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COUNT U
MASON-NORTON V. FIDELITY AND DEPOSIT COMPANY OF MARYLAND
13. Paragraphs 1 through 10 are incorporated herein by reference as if fully set forth
at length.
14. The Plaintiff believes and, therefore, avers that the Defendant Fries contracted
with the Eddystone Cummunity Center, a contracting body under the Public Works
Contractors' Bond Law of 1967, for the installation of the aforesaid materials at the
Eddystone Community Center, Eddystone, Pennsylvania.
15. Under said contract Defendant Fries agreed to furnish labor and materials for
said project.
16. Pursuant to the aforementioned Public Works Contractors' Bond Law,
Defendant Fries and Fidelity and Deposit Company of Maryland executed and furnished to
the Eddystone Community Center a joint and severable labor and material payment bond
for the protection of all persons supplying materials in connection with the performance of
the work provided for under Fries's construction contract. A copy of the Payment Bond is
attached hereto and made part hereof as Exhibit "E".
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17, The bond was accepted by the owner and work was undertaken by Fries.
18. Thereafter, the Plaintiff supplied materials described in Exhibits "A" and "B".
19. The Plaintiffs prices were fair and reasonable market prices for the materials
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provided.
20, All of the materials that were ordered, used and installed in and about the
construction were for the project referred to above.
21. More than 90 days and less than one year has elapsed since the Plaintiff last
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supplied materials to said project.
22. Fries has not paid the Plaintiff or anyone else for the full amount of materials
supplied by the Plaintiff nor has anyone else paid the Plaintiff, whereby there remains
.
justly due and owing to the Plaintiff under Fries's contract the sum of $9,858.00, plus
interest at the rate of 12 percent per armum.
23. The Plaintiff has complied with all conditions relating to and required under the
bond, as well as applicable statutes, and the Plaintiff is entitled to bring this action at this
time to recover from the Defendant the sums justly due and owing.
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V\THEREFORE, the Plaintiff requests this Honorable Court to enter judgment in favor
of the Plaintiff and against the Defendant Fidelity and Deposit Company of Maryland in the
sum of $9,858.00 plus continuing interest at the rate of 12 percent per annum plus
reasonable and necessary attorneys fees and cost of this proceeding.
Respectfully submitted,
PURCELL, KRUG & HALLER
BY
ell, Jr, Esquire
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MATERIAL
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OUOTATION
(BLUE)
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MATERIAL
QUOTATIOr--.
(BLUE)
MASON - NORTON COMPANY INC.
ESTABLISHED
1952
GEORGE O. PREBLE - Pre,idem HERBERT N. PREBLE - Founder
310 S. TENTH ST., LEMOYNE, PA 17043...................................PHONE: 717-737-4558
FAX: 717-761-8287
DATE: Dec. 17,
REV: July 13,
CONFIRMATION
1998
1999
TO:FRIES CONSTRUCTION MGNT.INC.
SHEET
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OF
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PROJECT:
LOCATION:
OUR QUOTE:
ADDENDAS:
Eddystone Corom.Bldg.
Eddystone, Pa.
1218-98
None
We are pleased to quote you for furnishing only the following materials, in types. quantities, sizes and accessories as stated. All items not specif-
ically listed are expressly excluded, MASON-NORTON COMPANY, INC. "In,rallarion Quorarion" will be anached where applicable.
ANY KIND OF TAXES ARE NOT INCLUDED
#1 TOILET PARTITIONS: By Global Steel
3 - toilet compartments with doors, of the headrail braced type, standard
hardware, in a standard color baked enamel finish
1 - urinal screen
For the sum of ----------------------------------------------------------- $1,000.00
NOT INCLUDED: Toilet accessories, toilet paper holders, grab bars, showers,
erection type fasteners.
#2 TOILET ACCESSORIES: By Bobrick
2 - framed mirroi:s'24 ~X 36 2 - paper towel dispensers
2 - framed mirrors 24 X 36 (tilt) 2 - soap dispensers
2 - grab bars 36 3 - toilet paper holders
2 - grab bars 42
For the sum of ----------------------------------------------------------- $1,010,00
NOT INCLUDED: Any erection type fasteners,
#3 TACKBOARD: By Claridge
1 - 4' X 3'6" tackboard, Series 4 factory built, 1/4" cork on 1/4"
hardboard, with alum. trim
For the sum of ----------------------------------------------------------- $ 230.00
114 To Provide (5) 6'0" X 5'6" H & (2) 4'0" X 5'6" H. free standing display
cases with legs
ACCEPTED ADD -------------------------------------------------------- $9,300.00
#5 FIRE EXTINGUISHERS & CABINETS:
3 - (10)Lb. tri-class eX4inguishers
3 - steel SM cabinets of bubble type with lettering
For the sum of ----------------------------------------------------------- $ 430.00
NOTE: This confirms order-of-intent Purchase Order #1410, for above said listed
items given to our Michael J. Rudy. We shall proceed with submittals and
look forward to receiving your written order. Thank you.
Date...... ..,............................,................,..............................., 19..,......, MASON-NORTON COMPANY.INC.
Accepted. "...........",..,........"".".""......."..,."........,...'.."..,.".,..,..",......, ByMi.~~iftt;..R~,p.~-;;~.~~.t-;,:.ti';;e....
rOw)v'!~?,~ SEE TERMS AND CONDITIONS ON REVERSE SIDE Exhibit "A"
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MASON-NORTON COMPANY, INC.
MERCHANDISE BROKER
STANDARD TERMS AND CONDITIONS OF SALE AND PERFORMANCE
FOR SPECIALTY BUILDING PRODUCTS
L This quotation issubject to change or withdrawal at any rime as MASON.NORTON COMPANY, INC is doing a brokerage
busIness, for speCialty products used In ConstructIon. All quotations are based on delivery of materials within a reasonable time,
subject ro escalarion on a net basis, without profit or over head, Proof of changes in cost will be produced on request of buyer,
Material must be shipped within one year from the latest date of quotation, or order could be subject ro Factory escalation.
2. This quotation does not include taxes of any kind; such as Federal, State, Local, Business or Ptivilege Taxes are not included.
Use taxes are not included. This quotation is subject to any future taxes at tax increase which may be imposed. Collection of
Taxes is for the convenience of the purchaser and will be remitted to the Taxing Aurhority on his behalf. MASON-NORTON
COMPANY, INC assumes no responsibility for taxes unpaid by buyer.
3, MASON-NORTON COMPANY, INC does not intend to be bound to any buyer based upon a contract which that buyer
may nave with anothet parry. Quotations are given in good faith fot materials which are considered to be acceptable for the
project referenced, bur it must be kept in mind that final approval .is at the discretion of others over whom we have no control.
4. All guarantees on materials are the Manufacturers standard and no other warranty is made by MASON-NORTON
COMPANY, INC, just as all quotations cover materials made to the standard specifications and details of the named
manufacturer.. which is deemed to be what is desired. Contracts which may be cancelled due to a third parry interpretation of
the requirements, which vary from our own, shall impose no liability on MASON-NORTON COMPANY, INC to furnish
other materials or pay any part of the cost of so doing. Cancellation of this contract is subject to written acceptance of the
manufacturer. and MASON-NORTON COMPANY, INC A minimum cancellation charge of ten percent may be imposed
on the buyer. Material is not to be returned without written permission.
5. Quotations include freight cost unless stated otherwise, however, shipment is EO.B. Factoty for delivety to job, or to the nearest
rail or rruck rerminal. Tide of goods shall pass from the shipper to the buyer on receipr of a common carrier or by receipr given
to rhe delivering agent of the shipper. Collect shipmenrs are to be paid by buyer then deducred from account if applicable.
Damage claims, unloading of shipments and stotage of same are the responsibility of the buyer. Notificarion of shortages,
damages, and/or defective materials must be made to MASON-NORTON COMPANY, INC, the day of delivety. Material
deliveries are not to be refused under any circumstances.
6. MASON-NORTON COMP~ INC shall not be liable for any loss, damage, derention or delay caused by freight damages,
shortages. defective or incorrect material, or by circumstances beyond their control: Delivery dates are dependent upon the
performance of others, so they are given as probable, not as a guarantee of performance.
7. The acceptance of this quotation by a signature here-on, by telephone, writren purchase order or subcontracr, shall constitute a
contract of sale only afrer wtitten acknowledgement by MASON-NORTON COMPANY, INC
8, This quotation shall be deemed a part of the agreement between MASON-NORTON COMPANY, INC and rhe buyer even
if nor specifically mentioned in any written of verbal otder given to MASON-NORTON COMPANY, INC by the buyer.
9. A written acknowledgement from MASON-NORTON COMPANY, INC shall constitute an acceprance of the conrract in
Cumberland County, Pennsylvania, MASON-NORTON COMPANY, INC will only perform on the basis of the rerms and
condirions herein stared, which terms shall govern, in case of conflicts between the buyer's order and this quotation. Any conrract
which develops from this quotation may be assigned to a third party for handling and/or collection of the account without any
liability on the part of MASON-NORTON COMPANY, INC
10. Terms of payment are 30 days net, afrer date of invoice, on full or partial shipments and interest will be charged at the rate of
12% annually on all over due accounts, No waiver of payment terms will be granted for any teason if not requested in wtiting
before rhe 30 days expire.
In rhe event of defaulr of the payment of any sums due hereunder, and upon rhe necessity of MASON-NORTON COMPANY,
INC placing the collecrion of such sums in rhe hands of an attorney upon defaulr, MASON.NORTON COMPANY, INC.
shall be entitled to teimbursement of all reasonable and necessary artorney's fees incurred for the collection of the same, and all
costs and expenses of collection, which amount shall be in addirion to all orher sums due and owing hereunder.
I!. Waiver and Releases of Liens will not be executed by MASON-NORTON COMPANY, INC. until full payments are received.
12. MASON-NORTON COMPANY, INC accepts no partial payments, retainages, liquidared damages, or backcharges wirhout
previous wtirren notification of problem and their costs, Any cnarges MUST have the written acceptance of MASON-
NORTON COMPANY, INC
To our Customers: These terms and conditions have developed over many years and are stated to clarify the abilities and
position of MASON-NORTON COMPANY, INC. as a manufactuter's agent. We have no intention of neglecting you, On the
contrary, we assure you of our cooperation and aid, especially when a problem arises.
Thank You
Form #0199
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FRIES CONSTRUCTION MG"-~, lNG,
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~Q!][~lreJ[}{]&~@j '@)[ID@JL;3[;
459 ", CASTER AVE.. FRAZER, PA 19355
Phone (610) 640-1880
FAX (610) 640-9131
Show this Purchase Order Number
on all correspondence, invoices,
shipping papers and packages.
1410
TO
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QTY. ORDEREO
QTY. RECENED
, UNIT' PRIce
TOTAL
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ORIGINAL
Exhibit "HI!
1. Please send copies of your invoice.
2. Order is to be entered In accordance with prices. delivery and specifications shown above.
3. Notify us immediately if you are unable to ship as specified.
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Rev: 0199
Form 20
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ORDE~ ACKNOWLED~~i~'JI
MASON - NORTON COMPANY INC.
ESTABLISHED
1952
SPECIALTY CONSTRUCTION PRODUCTS
GEORGE O. PREBLE. PRESIDENT
3105, TENTH ST.. LEMOYNE. PA 17043
PHONE 717-7374558
FAX 717-761.8287
FOR THE COMMERCIAL CONSTRUCTION INDUSTRY
HERBER!' N. PREBLE. FOUNDER
TO:
Date: 7-15-99
Our Order No,: 18993
Your Order No.: 1410
Job Name: Eddystone Community Center
Location: Eddystone. PA
Fries Construction Mgmt, Inc.
459 Lancaster Ave
Frazer, PA 19355
ATTENTION: James Fries
GENTLEMEN:
WE THfu'\!K YOU FOR YOUR ORDER WHICH IS DEEMED TO BE ACCEPTED IN LEMOYNE, PA,
CUMBERLAND COUNTY. SUBJECT TO THE APPROVAL OF YOUR CREDIT AND YOUR ACCEPTANCE
OF OUR TER1\1S AND CONDITIONS AS STATED ON THE REVERSE SIDE OF THIS ACKNOWLEDGE.
MENT AND OUR QUOTATION ATTACHED HEREWITH. PLEASE BE ADVISED THAT WE MAKE THIS
STATEMENT AND WE HAVE TAKEN THE PRECAUTION OF M.\KING YOU AWARE THAT OUR TERMS
AND CONDITIONS OF SALE WILL PREVAIL. AND THAT YOUR PURCHASE ORDER WILL AGREE WITH
OUR QUOTATIO:-;, WE ARE RETURNING A COpy OF OUR QUOTE fu'\lD/OR YOUR ORDER HEREWITH.
SHOULD YOU NOT BE SATISFIED. PLEASE ADVISE US IN WRITING WITHIN (10) TEN DAYS OF THE
....'." .
DATE OF THIS ORDER ACKNOWLEDGEMENT.
WE WISH TO REMIND YOU THAT DELIVERIES ARE SLOW BECAUSE FACTORIES ARE SLOW,
MAILS ARE SLOW: TRUCKING IS SLOW. APPROVALS AND FINAL INFORMATION IS OFTEN NOT COM-
PLETE, A1'lD WE HAVE NO CONTROL OVER THESE ITEMS.
TIMES STATED ARE ONLY GOALS AND NOT THE ESSENCE OF THE CONTRACT,
WHEN WE ItEQUEST ANY FURTHER INFORMATION TO EXPEDITE YOUR ORDER, PLEASE
KEEP THESE ITEMS IN MIND AND ANSWER PROMPTLY.
FEDERAL ID #23.2984787
HAZARDOUS MATERIALS: None
VERY TRULY YOURS,
ON COMPANY, INC.
GOP:deb
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GEORGE 0, PREBLE,
SEE BACK SIDE FOR TERMS AND CONDITIONS
Exhibit "e"
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MASON-NORTON COMPANY, INC.
MERCHANDISE BROKER
STANDARD TERMS AND CONDITIONS OF SALE AND PERFORMANCE
FOR SPECIALTY BUILDING PRODUCTS
1. This quotation is subject to change Ot withdtawal at any time as MASON-NORTON COMPANY, INC is doing a btoketage
business, for specialty products used in Construction. All quotations are based on delivery of materials within a reasonable time,
subject to escalation on a net basis, without profit or ovet head, Proof of changes in cost will be produced on tequest of buyet.
Material must be shipped within one yeat from the latest date of quotation, or ordet could be subject to FactOry escalation.
2. This quotation does not include taxes of any kind; such as Federal, State, Local, Business Ot Ptivilege Taxes ate not included.
Use taxes are not included. This quotation is subject to any futute taxes Ot tax inctease which may be imposed. Collection of
Taxes is for the convenience of the purchaser and will be remitted to the Taxing Authotity on his behalf. MASON-NORTON
COMPANY, INC assumes no responsibility fot taxes unpaid by buyer.
3, MASON-NORTON COMPANY, INC does not intend to be bound to any buyer based upon a contract which that buyet
may have with anothet parry, Quotations are given in good faith fot matetials which are considered to be acceptable fot the
project referenced, but it must be kept in mind that final approval is at the discretion of others over whom we have no control.
4, All guarantees on matetials are the Manufactuters standard and no other warranty is made by MASON.NORTON
COMPANY, INC, just as all quotations covet matetials made to the standard specifications and details of the named
manufacturet, which is deemed to be what is desired, Contracts which may be cancelled due to a third party interpretation of
the tequirements, which vary from our own, shall impose no liability on MASON-NORTON COMPANY, INC to furnish
other matetials or pay any part of the cost of so doing, Cancellation of this contract is subject to wtitten acceptance of the
manufactutet, and MASON-NORTON COMPANY, INC. A minimum cancellation charge of ten percent may be imposed
on the buyer. Material is not to be returned without written permission.
5. Quotations include freight cost unless stated otherwise, howevet, shipment is EO.B. faCtOry fot delivery to job, Ot to the nearest
tail Ot truck terminal, Title of goods shall pass from the shippet to the buyet on receipt of a common carrier or by teceipt given
to the delivering agent of the shipper, Collect shipments ate to be paid by buyer then deducted ftOm account if applicable,
Damage claims, unloading of shipments and storage of same are the tesponsibility of the buyer. Notification of shottages,
damages, andlor defective materials must be made to MASON-NORTON COMPANY, INC, the day of delivery. Matetial
deliveries are not to be refused under any circumstances.
. "'"." -', .
6, MASON-NORTON COMPANY, INC shall not be liable for any loss, damage, detention or delay caused by fteight damages,
shottages, defective ot incottect matetial, or by circumstances beyond theit control: Delivery dates are dependent upon the
petformance of othets, so they are given as probable, not as a guatantee of petformance,
7. The acceptance of this quotation by a signature here-on, by telephone, written purchase order or subcontract, shall constitute a
conttact of sale only after wtitten acknowledgement by MASON-NORTON COMPANY, INC
8, This quotation shall be deemed a part of the agteement between MASON-NORTON COMPANY, INC and the buyet even
if not specifically mentioned in any written of vetbal otder given to MASON-NORTON COMPANY, INC by the buyer.
9, A written acknowledgement from MASON-NORTON COMPANY, INC shall constitute an acceptance of the conttact in
Cumbetland Counry, Pennsylvania. MASON-NORTON COMPANY, INC will only petfotm on the basis of the tetms and
conditions herein stated, which tetms shall govern, in case of conflicts between the buyet's order and this quotation. Any contract
which develops from this quotation may be assigned to a third party fot handling and/Ot collection of the account without any
liabiliry on the patt of MASON-NORTON COMPANY, INC
10, Tetms of payment are 30 days net, after date of invoice, on full Ot partial shipments and interest will be chatged at the rate of
12% annually on all ovet due accounts, No waiver of payment tetms will be gtanted fot any reason if not tequested in writing
before the 30 days expire.
In the event of default of the payment of any sums due heteundet, and upon the necessity of MASON-NORTON COMPANY,
INC. placing the collection of such sums in the hands of an attorney upon default, MASON-NORTON COMPANY, INC
shall be entitled to reimbursement of all teasonable and necessary attorney's fees incurred fot the collection of the same, and all
costs and expenses of collection, which amount shall be in addition to all othet sums due and owing hereundet.
11. Waiver and Releases of Liens will not be executed by MASON-NORTON COMPANY, INC until full payments ate teceived.
12. MASON-NORTON COMPANY, INC. accepts no pattial payments, retainages, liquidated damages, Ot backchatges without
ptevious wtitten notification of problem and their costs. Any chatges MUST have the wtitten acceptance of MASON-
NORTON COMPANY, INC
To our Customers: These terms and conditions have developed over many years and are stated to clarify the abilities and
position of MASON-NORTON COMPANY, INC as a manufactutet's agent" We have no intention of neglecting you. On the
conttary, we assure you of out coopetation and aid, especially when a problem arIses.
Thank You
Form #0199
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MASON-NORTON COMPANY, INC.
ESTABLISHED N
19S2 SPECIALTY CONSTRUCTION PRODUCTS
For the Commericat Construction Industry 1 ' VOl C E
GEORGE O. PREBLE - PRESIDENT HERBERT N. PREBLE - FOUNDER
310 S. TENTH ST., LEMOYNE PA 17043
PHONE: 717-737-4558 FAX: 717-761-8287
-~~--
Sales Rep 10 i Invoice Date: Invoice Number: ,
MJR ! 11/24/99 18993-4
._----'-------,._.._-~.._---------_._----._. -------. --,
To:
FRIES CONSTRUCTION MGMT INC
459 LANCASTER AVENUE
FRAZER, PA 19355
Shipped To:
EDDYSTONE COMMUNITY CENTER
1401 E NINTH STREET
EDDYSTONE, PA 19022
TERMS OF SALE: 30 DAYS NET: 1% INTEREST PER MONTH ON OVERDUE ACCOUNTS
Your Order Number
,-
Customer ID: ! Date Shipped i Shipped Via iCO,," PP F,e,B, Point i Terms
, FR_I!S....c.... ____Q,LO;;L,i..,11/16/99_L ABF X FACTORY' Net 30 Days
~-__~~::==:~_-Des-cnpticin
DISPLAY CASES MFG BY CLARIDGE PRODUCTS AS PER APPROVALS
1410
--~~---
Amount
9,300.00,
Subtotal
Sales Tax
Total Invoice Amount
Payment Received
TOTAL
9,300.00
558.00
9,858.00
0.00
9,858.00
PLEASE PAY FROM THIS INVOICE
BE ADVISED THAT IF THIS INVOICE GOES
BEYOND OUR TERMS OF PAYMENT, IT WILL
BE NECESSARY UNDER THE BONDING
REQUIREMENTS TO NOTIFY YOUR
BONDING COMPANY, ARCHITECT, OWNER
AND OTHERS ON THE SIXTIETH DAY FROM
THE DATE OF THIS INVOICE,
NO PARTIAL PAYMENTS, RETAINAGES, BACKCHARGES
OR LIQUIDATED DAMAGES MAY BE DEDUCTED FROM
THIS INVOICE WITHOUT PRIOR WRITTEN APPROVAL
FEDERAL ID #23-2984787
_.~---_.
Exhibit "n"
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MASON-NORTON COMPANY, INC.
EST "'BUSHED
/952 SPECIALTY CONSTRUCTION PRODUCTS INVOICE
For the Comrnerical Construction Indnstry
GEORGE O. PREBLE - PRESIDENT HERBERT N. PREBLE - FOUNDER
310 S. TENTH ST., LEMOYNE PA 17043
PHONE: 717-737-4558 FAX: 717-761-8287
Sales Rep ID
MJR
Invoice Date: I Invoice Number:
To:
FRIES CONSTRUCTION MGMT INC
459 LANCASTER AVENUE
FRAZER, PA 19355
9/20/99
18993-3
Shipped To:
EDDYSTONE COMMUNITY CENTER
1401 E NINTH STREET
EDDYSTONE, PA 19022
TERMS OF SALE: 30 DAYS NET: 1% INTEREST PER MONTH ON OVERDUE ACCOUNTS
Customer 10: I Date Shipped Shipped Via CO PP' F.O.B. Point Terms I Your Order Number
. FRIES 01057 i 9/13/99 COMMON I X I FACTORY Net 30 Days I 1410
Description Amount
TOILET PARTITIONS MFG BY GLOBAL STEEL PRODUCTS AS PER APPROVALS
1,000.00
~- :t
'.4 lit
PLEASE PAY FROM THIS INVOICE
Subtotal
Sales Tax
Total Invoice Amount
Payment Received
TOTAL
1,000.00
60.00
1,060,00
0,00
1,060.00
BE ADVISED THAT IF THIS INVOICE GOES
BEYOND OUR TERMS OF PAYMENT, IT WILL
BE NECESSARY UNDER THE BONDING
REQUIREMENTS TO NOTIFY YOUR
BONDING COMPANY, ARCHITECT, OWNER
AND OTHERS ON THE SIXTIETH DAY FROM
THE DATE OF THIS INVOICE.
NO PARTIAL PAYMENTS, RETAINAGES, BACKCHARGES
OR LIQUIDATED DAMAGES MAY BE DEDUCTED FROM
THIS INVOICE WITHOUT PRIOR WRITTEN APPROVAL.
FEDERAL ID #23-2984787
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MASON-NORTON COMPANY, INC.
ESTABLISHED
1952 SPECIALTY CONSTRUCTION PRODUCTS INVOICE
For the Commerical Construction Indnstry , ·
GEORGE O. PREBLE - PRESIDENT HERBERT N. PREBLE - FOUNDER
310 S. TENTH ST., LEMOYNE PA 17043
PHONE: 717-737-4558 FAX: 717-761-8287
Invoice Date: '-I -;--N---'b
invoIce um er: ,
8/30/99 18993~r
To:
FRIES CONSTRUCTION MGMT INC
459 LANCASTER AVENUE
FRAZER, PA 19355
Sales Rep 10
MJR
Shipped To:
EDDYSTONE COMMUNITY CTR
1401 E NINTH STREET
EDDYSTONE, PA 19022
TERMS OF SALE: 30 DAYS NET: 1% INTEREST PER MONTH ON OVERDUE ACCOUNTS
___,.gljstomer ID: : Date Shipped Shipped Via ICO PP i F.O.B, Point Terms I Your Order Number
XR1.E:~ 01057 8/26/99 BEST WAY I X! FACTORY Net 30 Daysl 1410
Description Amount
TOILET ACCESSORIES MFG BY BOBRICK AS PER APPROVALS 1,010.00
r. :1
I~ ~ 0 ,~
,av Ie t1 c"JJ
Subtotal
Sales Tax
Total Invoice Amount
Payment Received
TOTAL
1,010.00
60.60
1,070.60
0.00
1,070,60
PLEASE PAY FROM THIS INVOICE
BE ADVISED THAT IF THIS INVOICE GOES
BEYOND OUR TERMS OF PAYMENT, IT WILL
BE NECESSARY UNDER THE BONDING
REQUIREMENTS TO NOTIFY YOUR
BONDING COMPANY, ARCHITECT, OWNER
AND OTHERS ON THE SIXTIETH DAY FROM
THE DATE OF THIS INVOICE.
NO PARTIAL PAYMENTS, RETAINAGES, BACKCHARGES
OR LIQUIDATED DAMAGES MAY BE DEDUCTED FROM
THIS INVOICE WITHOUT PRIOR WRITTEN APPROVAL.
FEDERAL 10 #23-2984787
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MASON-NORTON COMPANY, INC
EST A8L1SHED
.9S2 SPECIALTY CONSTRUCTION PRODUCTS INVOICE
For the Commerical Construction Industry
GEORGE O. PREBLE - PRESIDENT HERBERT N. PREBLE - FOUNDER
310 S. TENTH ST., LEMOYNE PA 17043
PHONE: 717-737-4558 FAX: 717-761-8287
To:
FRIES CONSTRUCTION MGMT INC
459 LANCASTER AVENUE
FRAZER, PA 19355
Sales Rep 10
MJR
Invoice Date: I Invoice Number: '
,
9/7/99 ' 18993-2
Shipped To:
EDDYSTONE COMMUNITY CENTER
1401 E NINTH STREET
EDDYSTONE, PA 19022
Customer 10: i Date Shipped
. FRIES 01057 I 8/30/99
~__~__ Description
FIRE EXTINGUISHERS AND CABINETS MFG BY LARS ENS AS PER APPROVALS
TERMS OF SALE: 30 DAYS NET: 1% INTEREST PER MONTH ON OVERDUE ACCOUNTS
~~--~-
Shipped Via COl PP FeO;B. Point t Terms I Your Order Number I
!
UPS X FACTORY iNet 30 Days
1410
, Amount
430.00
~. :1
11.111
I
Subtotal
Sales Tax
Total Invoice Amount
Payment Received
TOTAL
430.00
25.80
455.80
0.00
455.80
PLEASE PAY FROM THIS INVOICE
BE ADVISED THAT IF THIS INVOICE GOES
BEYOND OUR TERMS OF PAYMENT, IT WILL
BE NECESSARY UNDER THE BONDING
REQUIREMENTS TO NOTIFY YOUR
BONDING COMPANY, ARCHITECT, OWNER
AND OTHERS ON THE SIXTIETH DAY FROM
THE DATE OF THIS INVOICE,
NO PARTIAL PAYMENTS, RETAINAGES, BACKCHARGES
OR LIQUIDATED DAMAGES MAY BE DEDUCTED FROM
THIS INVOICE WITHOUT PRIOR WRITTEN APPROVAL.
FEDERAL ID #23-2984787
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LABOR AND MATERIALSMEN'S BONQ
Bond N~.Oa344032
KNOW AlL MEN BY THESE PRESENTS, THAT Fries Constru~ion Manaaement
Ine.. ~9 Lancaster Avenue. Frazer. PA 19355 as Principals, and .e.gtlvstQne
Bo " .' 1300 . II Street dd ston 1 (hereinafter called the
Oblig ). in the penal sum of Five Hundred Twentv-fourThousanq Dollars and No
cent~, ' 5 ,QOO.OO) for the Base Contract and Twelve Thousand Dollars and ti2
~e~OOO.OO) for the Alternate for a total contract price of Five Hundred
Th" - ix Thou and No s 5 lawful money of the United statu
for tIlie' yment of which sum well and truly to be made. we bind ourselves, our hen,
persc:iri~ representatives, successors and assigns, jointly and severally finnly by these
present;:
WHER$S, 1I1lid Principal ha6 enll::flN illlu 1I c:snaln Conuaet 'MU'I said Obligee, dated
January! 11, 1999 (hereinafter called the Contract) for the Construction of Eddvstone
Comrt1~~itv Center. Contract 1 - General Construction which Contract and the
speclfiCl?tions for said worle shall be deemed a part hereof as fUlly as if set herein.
NOW, ll-lEREFORE, THE CONDITIONS OF THIS OBLIGATION IS SUCH that if $BId
Principaj and all Subcontractors to WIlom any portion of the worle provided for In said
Contract; Is sublet and all assignees of said Principal and of such Subcontractors shall
promptl~lmake payment for all labor perfonned, services rendered and material. fumished
in the p~secution of the worle provided for In said Contract, the above obligation shall be
void, tlO\jlever, that this bond is subject to the following conditions and limitations:
A. All persons WIlo have performed labor, rendered services or furnished materillls or
machinery as aforesaid shall have a direct right of action against the Principal and
Surety, WIlich right of action shall be asserted in the proceedings instituted in th.
s.te in WIlich such labor was perfonned. services rendered or materials furniWled
(d,r where labor has been perfonned, services rendered or materials fumished
uQder said Contract in more than one &.ate, then in any such State). Insofar at
pennitled by the laws instituted in the name of the Obligee to the use and benefit
of the person instituting such action and of all other persons having claims
h~reunder, and any other person having a claim hereunder shall have the right to
bll made a party to such proceeding (but not later than six months after the
ccimplete perfonnance of said Contract and final settlement hereof) and to have
s~ claim adjudicated in such action and judgement thereon.
B. The Surety shall not be liable hereunder for any damage or compensation
r~verable under any Worleet's Compensation or employers liability statute.
C. In nO event shall the Surety be liable for a greater sum than the penalty of this
Bond. or 5ubjeCl to any luit, action or proceeding thereon that Is instituted later
lh.n six months after the complete perfonnance of said Contract and final
00420-1
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-rttJell'lent thereof.
D. A,s used herein: The tenn (person) refers to any person. finn. or corporation who
hils furnished materials or machinery to be used on or incorporated in the work or
t/jIe prosecution thereof provided for in said contrad or in any amendment or
~ension of or addition of said contract and/or to any person engaged in the
Prosecution of the work provided for in said Contract or in any agent, servant or
~ployee of the Principal. or of Contractor, who is an agent, servant or employee
or the Principal, or of any Subcontractor or of any assignee of said Principal or of
$y Subcontractor and also anyone so engaged who performs the work of a
laborer or of a mechanic regardless of any contractual relationship between the
~r1nclpal or any Subcon1ractor or assignee of said Principal or of said
~bconlractor, and sudl laborer or mechanic:, but shall not Include offICe
elnpioyees not regularly stationed at the site of the wor1t.
AND ~ said Surety, for value received hereby stipulates and agrees that no change,
extenSiO~' of time, alteration or addition to the tenns of the Contrad or the war!!. to be
parto"" d hereunder or the specifications accompanying the same shall in any way effect
its oblill tlon on this Bond. and it does hereby waive notice of the change, extension of
time, alt ration or addition to the tenns of the Contract or to the work to the specifications.
SIGNED AND SEALED AND DELIVERED THIS 16thOAY OF March , 19J9
: !
IN THE PRESENCE OF:
(INDIVIDUAL PRINCIPAL SIGN HERE)
j; '-- tP, l.(i-.f;~....'r
(CqR ORATE PRINCIPAL SIGN HERE)
,
FRI'tS CONSTRUCl'ICN MANAGFJoIE:NT IN<:.
BY:
(Surety Sign Here)
FIDELITY AND DEPOSIT a:::MPJINY OF MARYLANI>
BY: ,lf~~~n"kl(L{~
FetTlanda L.OePaolantonio
attorney-in-fact
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Power of Attorney
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
HOIIII{ OFFICE: P.O. BOX 1m. BALnMORE. MD 2121li-1ZZ7
Know ALL MEN BY THESE PRESENTS: Thai Ihc FIDEL1TiY AND DEPOSIT COMPANY OF MARYLAND, a corponllion of Ihc Stale of
MaryI3/ld. by W, ~, WALBRECHF.R, Vic:c.Presiden~ 3/ld T, E. SMITH, Assistant Sem"'Y, in pursuance of ilUlhority _!Cd by Aniole VI, S."ion
2. otlhe 8y..l.aiv4 ofsak( Company, whicll are set forth Oft the reverse sidr; hcr~o(and are hereby c:c.nificd to be in firll force IIlld 6<< on Ihl: cb&c
hereof. does h""'lll' nominlllt, cansti... and 'llP<>int Tho",.. J. Gallen, Loi. A. Farrell, Robert J. Col"'an, F.rnanda L. Deholantonio,
Loretta T. RII" and Kelly C. He.on..y, .11 of Trooper.Pennsyl.nnia, EACH its It... and Inwl\d agent and Allumcy-in-F..l, to
make, execute. SeW and dr:livcr. for, and on itS bc:haJf as SUTct)', and as . t and deed: and all bonds and undertakings and the
necution ofsud"bonds or undcrtakinp ill pursuaoec ofthesc: prescots. shall din!,; ~ ompaoy, as fully and amply. 10 all intc;fllS and
PUJ'1'Oscs. as iftbey had. been duly exccl.ared and ~knowlc:dcr;d by the regul ed 0 Company at its office in Baltimore, Md.. in thc:ir
ownproperper.5o~. This powcrofanorney revokes that issued on beh.alf J. Gall 1 datl:d.January 29.199&.
The said" Assistant S~ doc~ hereby cet1ify that the CXtTaCt s the: reY~~ MR:of is a true: c;opy of Aniclc VI. Sectiun 2. orthc
B)'-u*S utsaid dompany, 8I1d is now in fore:. L(~
IN Wn"NESS ~OF. rhe said Vicc.P=ido"' Illd ASS#'S ' tory h"~""1iiliO s.b<aib<d Illeir ...... and aff..od the Corpo..., Se.11 of
rho said F1DEI.IT'/' AND DEPOSIT COMPANY OF MARYL 530th day, . A,D, 1998,
, ~
iii ~ flDEl~TY A~vsrr~OFMAR~
S~L ' ~-1~ 'd~ _~~~' By: (~Jtll~~~lc.
"-~ IT LSm,dr ~ 'Sls((Jnt~ w'B. Wa/bre.cM1' P)ct-I'1't!liderrt
S-9f~}~ <$; ~\,;;"
COUIIlyo~timon: ~~'
On thls 30th 4at of January. A.D. 1998, before the 5 " a NoW')' PubJicot"thc: State of Maryland. dw)' commissioned and qualified, came W.
B. WALBRECH!J*. Via:-Prcsidon, and T. E, SMI Sian' S=.tary oflhc F1DEUTY AND DEPOSIT COMPANY OF MARYlAND, 10 me
personafly latoWIIIro be the individual I' arad om scribed in and who exec:uted the preccding inlitrumc;nt, and thoy lI!:ac:h iGknowlcdgcd the
execution ofthc Saine. and beine by me dlll)' sworn. ctally 211d each for himself c1cposeth Md s;lith, that dlcy are the: said oft1;;n oem.:. Company
aforesaid. and th8t:the seal affixed (0 the: preceding instrument is the Corporate Sui of said Comp9llY, and that the 5&id C~ Sa. md their
sicnlltUftS as suclj qm.c:ers were duly afl'hced and subscribed to the said instrument by the aurhori~ and direclion 0' tbr; said Corporation.
iN TESTIMONY WHEU:.Of. I have hm:unU) set. my hand and afflXCd my ()ff\ci~ SW \he day and "lcv first illobcnc written.
a~
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C.,&I J. Fads, Notm')' Publ,.
My C is< Expi...: August I, 2000
CERTIFICATE
I, Ihc "dersi~As'iSIanI 5<="", of th< I'IDEU1Y AND DEPOSIT COMPANY OF MARYLAND, do hereby c:c:nify duir tile original Pow...
of Anomcy ofwhi the fotegoin(! 1:1.. tvll V\lC MId correct copy. is in fUn force and dfcct on the date oflhis certifiCOllEej and r do fUrther certify thll:
Ihc Vice-l'Y1:sidcnt ho ~eeu'cd the Woi~ rCl'\ll~f o.r Attorney ~ one; oCtile additional Vice-Presidents specially Slllhorizcd by the Boacd of Directors
10 appoint any A Y-ln-Fact as pnhllkd In Mlde VI, Section 2. of the By-taws of~ FIDELITY AND DEPOSIT COMPANY Of MARYL\ND.
this Power of' mc)' iU'ld Cenlr,...IIC' m..' be ~i~ncd by facsimile lUJekr 3."ld by cwthoriry of the !allowing resolution ofthf: Boa."'(! efDin:ctors or
tIlo F1DEI..ITY ~DEPOSIT COMP"'" Of \IARvtAND at a m.o'ing duly oall<d and hc:ld on tho 10lh da.v of MIS)', 1990,
RESOLVED: ~llt the facsimile Of mech.anIQ.lly reproduced !<leal of the company and facsimile or mechanically reproduced sig.natur= of any
Vice--PTcsident, seajewy, or AsSi)l~l X'ft'Ur".' of the Company, whether made hetemfof!: or hereafter, wherever appearing upon a certified a)py of
sny power or ~ i.ssued bJ \he (. ('\mr-M!-. ~h.a.l1 be valid and bindins: upon lhr; Company with the same force: and effect as thouzh m.anually
aIlixod." ,
IN TESTIMONY WHEREOF. r h.1\c ~retJntn ~L1bsc:ribcd my name and affix.:d thcc:orporal.c seu.l (tfthe said Company. this
If, M
daYOf_1JJ ~
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~4": m..r~J
Assistant Secretary
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VERIFICATION
COMPANY NAME: MASON-NORTON COMPANY, INC.
I verify that the statements made in the foregoing Complaint are true and correct.
I understand that false statements herein are made subject to the penalties of 18 PA
C.S. ~ 4904 relating to unsworn falsification to authorities.
Dated:
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2000-04936 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MASON-NORTON COMPANY INC
VS
FRIES CONSTRUCTION ET AL
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
FRIES CONSTRUCTION MANAGEMENT INC
but was unable to locate Them
in his bailiwick. He therefore
deputized the sheriff of CHESTER
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On August
lOth , 2000 , this office was in receipt of the
attached return from CHESTER
Sheriff's Costs:
Docketing
Out of County
Surcharge
DEP. CHESTER CO
18.00
9.00
10.00
150,00
.00
187,00
08/10/2000
PURCELL, KRUG
~~~v~
R. 'Thomas Kline
Sheriff of Cumberland County
& HALLER
Sworn and subscribed to before me
this i<l e day of ~wl-
;2..crv-o A . D .
Cf1t1L.- Qpr2:h~~~fa;77
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SHERIFF'S RETURN - OUT OF COUNTY
,
CASE NO: 2000-04936 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MASON-NORTON COMPANY INC
VS
FRIES CONSTRUCTION ET AL
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
FIDELITY & DEPOSIT COMPANY
OF MARYLAND
but was unable to locate Them
in his bailiwick. He therefore
deputized the sheriff of ALLEGHENY
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On Auqust
10th , 2000 , this office was in receipt of the
attached return from ALLEGHENY
Sheriff's Costs:
Docketing
Out of County
Surcharge
DEP. ALLEGHENY CO
ALLEGHENY NOTARY
6.00
9.00
10.00
28.00
3.00
56.00
08/10/2000
PURCELL, KRUG
~
.' Thomas Kline
Sheriff of Cumberland County
& HALLER
Sworn,and subscribed to before me
this 1'/ ~ day of Clr
:Lrno A.D.
~a~~
Prothonotary
,
, *In The Court of Common Pleas of Cumberland County, Pennsylvania
Mason-Norton Company, Inc.
VS.
'Fries Construction, et. al.
Serve: Fries Construction
Management, Ine.
No. 20-4936 Civil
Now,
7/13/00
, 20 C (i , I, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of
Chester
County to exe.cute this Writ, this
deputation being made at the request and risk of the Plaintiff.
, .' r~_V~'i:~"
Sheriff of Cumberland County, P A
Affidavit of Service
Now,
~~ AtJ.:)l).~ ,200(),atJo~L./:S o'clock.-1LM.servedthe
N04\CCl.. ~ C~IV\?\Q,~(\~
F?"6' ;~ C6^ S+,(L.( (.+:01\ ,~I\I>.je.~^ \! lAc..,
So. : J. ~wJ. A~ 1-6~5 .
N~c;
within
upon
at
by hand{ng to
l>6'~\M ,
a ~.
JOIMe..5 1:
copy of the original
and made hown to
the contents thereof
So answers@
~~
County, PA
NO'\' Al\IAL SEAL .....,
\ JOAN p, eOMMELYN.'"
WIIIl\ 0hII\tI1aIll (lheiI8f 1 '
m
Sworn and subscribed before
me this 2!l- day of ~ ,20 tJO
r~/tft~-'f. .
COSTS
SERVICE /f.()1
MILEAGE 'f. lip
AEFIDA VIT J,/jO
$
). Jt~b
$
.
~' In The Court of Common Pleas of Cumbedand County, Pennsylvania
, ~ - > f" ..
Mason-Norton Company, Inc. ~~
Fri~s c,?nstructi:~', Manage,":e_nt,. .~~c., et. aL /\ \
erve: ~-,FldelT'ty-&-DeposTt' 'Comp-any of}W' - -~- ...--.-:~ .--.. \
~~:~~'~~~:'~~~ffi.~1~~~~9'36, C1Vll_
Now, 7/13/00 , 204J(), I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Alleqheny
County to execute this Writ, this
deputation being made at the request and risk ofthe Plaintiff. , ~,' '
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, 1: "'~-r~
Sheriff of Cumberland County, PA
Mfidavit of SeJrVice
Now,
, 20 OV,~;:'~~~fr~~~ '
.~~.,.,. --
.r~M.'~erved the
within
-=?--/; q:;r;?-."::/ '
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3\c>,'~~:(Si-R0rS!!Sf~ 1"?-2.0
upon
at
by handing to
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~opy of the original' " " ,//
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and made lmown to
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So answers,
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~emYd{ ,- ! \ - # I ounry, PA
SHERiFf OF ALLEGHENY COUNTY
, Notarial Seal
Sh~lla R. O'Brien, Notary Public
Plttsbur~h, Alle~heny County
My CommIssIon Expires June 19, 2004
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
MASON-NORTON COMPANY, INC.
Plaintiff
v.
CIVIL ACTION-LAW
FRIES CONSTRUCTION
MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND
No. 00-4936
Defendants
ORDER
AND NOW, on this
day of
, 2000, it is hereby
ORDERED and DECREED that Defendants, Fries Construction Management,
Inc, and Fidelity and Deposit Company of Maryland's Preliminary Objections are
GRANTED and the Complaint of Mason-Norton is hereby DISMISSED with leave
to refile in a more appropriate forum.
BY THE COURT:
J.
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FLAMM, BOROFF & BACINE, P.C.
BY: Henry J. Costa, Jr./ Brian W. Waerig
Attorney 1.0. No. 24553/81534
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, PA 19422
(215) 239-6000 Attorneys for Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
MASON-NORTON COMPANY, INC.
Plaintiff
v.
CIVIL ACTION-LAW
FRIES CONSTRUCTION
MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND
No. 00-4936
Defendants
DEFENDANTS, FRIES CONSTRUCTION MANAGEMENT, INC.
AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND'S
PRELIMINARY OBJECTIONS TO PLAINTIFF,
MASON-NORTON COMPANY, INC.'S COMPLAINT
Pursuant to Rule 1028 of the Pennsylvania Rules of Civil Procedure,
Defendants, Fries Construction Management, Inc., ("Fries"), and Fidelity and
Deposit Company of Maryland, ("F&D"), hereby file their preliminary objections to
the Complaint of Plaintiff, Mason-Norton Company, Inc., ("Mason-Norton"), and
state as follows:
I. Improper Venue
1. Plaintiff's Complaint was filed in the Court of Common Pleas of
Cumberland County, Pennsylvania on or about July 12, 2000.
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2. Defendant, Fries, is a Pennsylvania business corporation with its
principal place of business in Frazer, Chester County, Pennsylvania.
3. Defendant, F&D, is a surety company with its principal place of
business located in Baltimore, Maryland who provided a surety performance
bond in conjunction with a construction project at the Eddystone Community
Center, on which Fries was the general contractor.
4. This suit is based on the recovery of payments Plaintiff alleges is
due to it for materials provided to Fries in conjunction with a construction project
involving the Eddystone Community Center in Delaware County, Pennsylvania.
5. The Complaint contains statements that Defendants accepted the
contract in Cumberland County. However, there is no evidence that
"acceptance" of the contract occurred in Cumberland County.
6. There is no document signed by Fries or F&D in which they
subjected themselves to being haled into Court in Cumberland County. In fact,
the only documents which state anything about the contract being accepted in
Cumberland County are documents signed by Mason-Norton, not Fries or F&D.
7. The purchase order was signed at Fries location in Chester County
and F&D had no contact with Cumberland County during this transaction
whatsoever.
8. There is no proper basis alleged in the Complaint for venue to rest
in the Court of Common Pleas of Cumberland County as none of the Defendants
reside in Cumberland County and the construction project for which the bond
.
was secured and materials were allegedly provided are located in Delaware
County. Therefore, Cumberland County is not an appropriate venue.
9. Pursuant to Pa.R.C.P. 1006, an action against corporations or
similar entities may be brought in and only in the county's designated by
Pa.R.C.P. 2179, to wit, the county where its principal place of business is located
or the county where the transaction or occurrence took place out of which the
cause of action arose. Pa.R.C.P. 2179(a)(1), (4).
10. As a result, venue of this lawsuit is improper in Cumberland County
and Plaintiff's Complaint should be stricken for its failure to bring this cause of
action in the proper venue.
WHEREFORE, Defendants demand that their preliminary objections as to
improper venue be granted and that Plaintiff's Complaint be stricken.
FLAMM, BOROFF & BACINE, P.C.
By:
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VERIFICATION
I, Brian W. Waerig, do hereby verify that I am the attorney for Defendants
in this matter and that as such I am entitled to make this verification. I verify that
the allegations set forth in the foregoing preliminary objections are true and
correct to the best of my knowledge, information and belief. I make this
verification pursuant to 18 Pa.C.SA S 4904 relating to the unsworn falsification
to authorities.
Brian W. Waerig
CERTIFICATE OF SERVICE
I, Brian W. Waerig, do hereby certify that on this 23rd day of August, 2000,
I caused a true and correct copy of Defendants' Preliminary Objections and Brief
in Support thereof to be served, via United States mail, upon the following:
John W. Purcell, Jr., Esquire
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
IN THE COURT OF COMMON PLEAS
CU'MBERLAND . COUNTY. PENNSYLVAN IA
(Must be typewritten)
TO THE PROTHONOTARY:
Please I ist the within matter for the next Argument Court.
CAPTION OF CASE
(ENTIRE CAPTION MUST BE STATED IN FULLl
MASON-NORTON CbMPANY, INC.
Plaintiff
v.
FRIES CONSTRUCTION MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT COMPANY OF MARYLAND,
Defendants
v.
No,
00-4936
19
1. State matter to be argued (i .e" piaintiff's motion for new trial,
defendant's demurrer to complaint, etc.l:
Preliminary Objections
2. Names and addresses of al I attorneys who wi I I argue the case:
(al Plaintiff(sl: John W. Purcell. Jr. Purcell. Krug & Haller
1719 N. Front Street, Harrisburg, PA 17102
(bl Defendant(s): Brian Gagliardi, Flamm, Boroff & Bacine, P.C.
Union Meeting Corporate Center, 925 Harvest Drive, Suite 220, Blue Bell, PA 19422
(c) Additional defendant:
November 11. 2000
Date
rties that this case has been
Within two days, I wi I I
I isted for argument.
(717) 234-4178
Phone Number
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FLAMM, BOROFF & BACINE, PC
By: Henry J. Costa, Jr., Esquire
Atty. ID No. 24553
By: Robert R. Watson, Jr., Esquire
Atty. ID No. 83787
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, PA 19422
(215) 239-6000
Attorneys for Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
MASON-NORTON COMPANY, INC.,
Plaintiff
No. 00-4936
v.
CIVIL ACTION - LAW
FRIES CONSTRUCTION
MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT
COMPANY OF MARYLAND,
Defendants
ENTRY AND WITHDRAWAL OF APPEARANCES
TO THE PROTHONOTARY:
Kindly enter the appearance of Henry J. Costa, Jr., Esquire, and Robert R.
Watson, Jr., Esquire, on behalf of both Defendants.
Kindly withdraw the appearance of "Brian Gagliardi" and/or Brian W.
Waerig, Esquire, formerly of Flamm, Boroff & Bacine, PC.
FLAMM, BOROFF & BACINE, PC
~~
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ROBERT R. WATSON, JR.
Atty. ID No. 83787
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MASON-NORTON
COMPANY, INC.,
Plaintiff
v.
FRIES CONSTRUCTION :
MANAGEMENT, INC.
And FIDELITY AND
DEPOSIT COMPANY OF :
MARYLAND,
Defendants
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
NO. 00-4936 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS
BEFORE HOFFER. P.J.. OLER and GUIDO. JJ.
ORDER OF COURT
AND NOW, this 7th day of December, 2000, upon consideration of
Defendant's preliminary objections to Plaintiff's complaint, the preliminary
objections are denied,
John W. Purcell, Jr., Esq.
1719 North Front Street
Harrisburg, P A 17102
Attorney for Plaintiff
Henry J. Costa, Jr., Esq.
Robert R. Watson, Jr.
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, PA 19422
Attorneys for Defendants
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BY THE COURT,
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FLAMM, BOROFF & BACINE, PC
By: Henry J. Costa, Jr., Esquire
Atty. ID No. 24553
By: Robert R. Watson, Jr., Esquire
Atty. ID No. 83787
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, PA 19422
(215) 239-6000
Attorneys for Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
MASON-NORTON COMPANY, INC.,
Plaintiff
No. 00-4936
v.
CIVIL ACTION - LAW
FRIES CONSTRUCTION
MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT
COMPANY OF MARYLAND,
Defendants
DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY
OBJECTIONS TO PLAINTIFF'S COMPLAINT
Defendants, Fries Construction Management, Inc. ("Fries") and Fidelity
and Deposit Company of Maryland ("F&D"), hereby file their preliminary
objections to the Complaint of Plaintiff Mason-Norton Company, Inc. pursuant to
Pa. R. Civ. P. 1028, and in support thereof aver as follows:
I. FACTS
Plaintiff filed its Complaint against Defendants in the Court of Common
Pleas of Cumberland County, Pennsylvania on or about July 12, 2000. The
Complaint seeks payment of amounts allegedly due and owing for materials
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provided to Fries in conjunction with a public construction project involving the
Eddystone Community Center in Delaware County, Pennsylvania (the "Project").
F&D provided a surety performance bond for the Project. Plaintiff contends that
venue is proper in this Court because of statements made in documents signed
only by the Plaintiff, and not by Fries or F&D. Plaintiff has produced no
evidence that the Defendants consented to venue in Cumberland County, and, in
fact, the Defendants have never consented to venue in this Court.
II. ABSEI\IT ANY EVIDENCE THAT DEFENDANTS HAVE CONSENTED
TO VEl\Il!IE IN CUMBERLAND COUNTY, THIS FORUM IS
INAPPROPRIATE AND PLAINTIFF'S COMPLAINT MUST BE
STRICKEN
Plaintiff has offered this Court no evidence that either Fries or F&D have
consented to venue in Cumberland County. Pursuant to Pa. R. Civ. P. 2179, any
action which Plaintiff may have against the Defendants must be brought in the
county where the transaction or occurrence took place out of which the cause of
action arose. While a plaintiff in the usual contract case may be presented with
several choices for filing its cause of action, suit cannot be commenced in a
county for the sole reason that the plaintiff resides in and does business there
where the defendant is a corporation conducting business in another county.
Buckler Construction v. Motor Truck Equipment Co., 36 D. & C.3d 260, 262-63
(Potter 1985). The mere fact that payments under a contract were to be made in
a particular county does not constitute a sufficient transaction or occurrence for
purposes of determining venue. Northwest SavinQs Ass'n v. Womer, 72 D. &
C.2d 231,234 (Warren 1976). One small part of a transaction or occurrence is
74389 v1
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insufficient to establish venue. See, e.O., Superior Court of Pa. v. Westminster
Colleoe, 238 Pa. Super. 194, 197,357 A.2d 608, 611 (1976).
As stated above, the transaction or occurrence allegedly giving rise to
Plaintiff's cause of action did not take place in Cumberland County. Fries is a
corporation with its principal place of business in Chester County, Pennsylvania.
F&D is a surety company with its principal place of business in Baltimore,
Maryland who provided a surety performance bond in conjunction with a public
construction project in Delaware County. The purchase order for the materials
delivered to Fries which allegedly form the basis of Plaintiff's claims was signed
at Fries' offices in Chester County. Plaintiff has offered this Court no evidence
that Defendants have in any way consented to or accepted venue in Cumberland
County, and have forced the Defendants to incur additional expense to defend
against Plaintiff's action filed in this improper venue.
As this Court has stated, the purpose behind Pa. R. Civ. P. 2179 is to
chose a venue which bears a substantial relationship to the transaction or
occurrence out of which the controversy between the parties arose. Brouoh v.
Carl Cook Auto Sales, Inc., 26 Cumbo LJ. 148,75 D. & C.2d 132, 135-36 (1976).
To permit Plaintiff's cause of action to against the Defendants to be heard in
Cumberland County clearly runs contrary to the intent of Pa. R. Civ. P. 2179. kl
at 136.
74389 v1
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WHEREFORE, Defendants Fries Construction Management, Inc. and
Fidelity and Deposit Company of Maryland demand that their preliminary
objections be granted, and that Plaintiff Mason-Norton Construction Company,
Inc.'s Complaint be stricken.
Respectfully submitted,
DATE: lll-Z4/00
.
ROFF & BACINE, PC
HENRY J. COSTA, JR.
ROBERT R. WATSON, JR.
Attorneys for Defendants
74389 v1
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FLAMM, BOROFF & BACINE, PC
By: Henry J. Costa, Jr., Esquire
Atty. 10 No. 24553
By: , Robert R. Watson, Jr., Esquire
Atty. 10 No. 83787
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, PA 19422
(215) 239-6000
Attorneys for Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
MASON-NORTON COMPANY, INC.,
Plaintiff
No. 00-4936
v.
CIVIL ACTION - LAW
FRIES CONSTRUCTION
MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT
COMPANY OF MARYLAND,
Defendants
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Defendants' Memorandum
of Law in Support of Preliminary Objections to Plaintiff's Complaint was served
on the following individuals by first class mail, postage prepaid:
John W. Purcell, Jr., Esquire
PURCELL,KRUG,HALLER
1719 North Front Street
Harrisburg, PA 17102
DATE:jtrz.L1100
FLAMM, BOROFF & BACINE, PC
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ROBERT R. WATSON, JR.
Attorneys for Defendants
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MASQN-NORTON COMPANY, INC.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
CIVIL ACTION-LAW
vs.
FRIES CONSTRUCTION
MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendants
NO. 00-4936
PLAINTIFF'S BRIEF IN OPPOSITION
TO THE DEFENDANTS' PRELIMINARY OBJECTIONS TO
PLAINTIFF'S COMPLAINT
1. FACTS AND PROCEDURAL HISTORY
On December 17, 1998, Plaintiff provided a quotation for the furnishing of
various materials for use on a job site known as the Eddystone Community Building
in Eddystone, Pennsylvania. The Defendant, by purchase order dated July 12, 1999,
ordered some, but not all of the items quoted in December of 1998, consisting of toilet
partitions, toilet accessories, fire extinguishers, and cabinets, one tack board and one
display case with stand. The Purchase Order was for the amount of $11,970.00.
On July 13, 1999, the Plaintiff accepted the Purchase Order by revising the
original quotation to reflect the amount agreed upon by the parties along with a
written acknowledgment dated July 15, 1999. The Purchase Order of the Defendants
is attached to the Plaintiff's Complaint as Exhibit "B", the revised quotation is
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attached as Exhibit" A", and the acknowledgment of the Plaintiff is attached as
Exhibit "C".
Thereafter, the various items were shipped directly to the Eddystone
Corrununity Center by the Plaintiff's suppliers, at various times and various dates, as
indicated by the invoices attached as Exhibit "D" to the Complaint. The Defendant
paid for three of the invoices, leaving a balance due on the remaining invoice of
$9,858.00. Despite demand, the Plaintiff to this date has failed to pay the final
invoice.
The Plaintiff filed suit in Cumberland County, Pennsylvania against the
Defendant Fries Construction Management, Inc., the party to the original contract,
along'with Fidelity and Deposit Company of Maryland, who provided the labor and
material bond for the project. The Defendants filed Preliminary Objections in the
nature of a objection to venue, and filed a Brief in support thereof. This Brief is filed
on behalf of the Plaintiff in opposition to the Preliminary Objections.
II. QUESTION PRESENTED
A, IS VENUE PROPER IN CUMBERLAND COUNTY, WHEN THE
CONTRACT WAS FORMED IN CUMBERLAND COUNTY, AFTER AN
OFFER TO PURCHASE BY THE DEFENDANT AND AN ACCEPTANCE
BY THE PLAINTIFF?
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. Answered in the affirmative.
III. DISCUSSION
Defendants, in their Brief, contend that venue is improper, because there is no
evidence or documents attached to the Plaintiff's Complaint, sioned bv the
Defendants, in which the Defendants consent to venue being had in Cwnberland
County. Plaintiff submits that the Defendants' consent is not the issue, but whether
venue is appropriate under Pa, R.C.P. 2179.
Both of the Defendants are corporations, so Pa, R.C,P. 2179 relating to venue
applies to both Defendants. That Rule provides that personal action against the
corporation or similar entity may be brought in and only in the following places:
(1) The County where its registered office or principal place of business is
located;
(2) A County where it regularly conducts business;
(3) The County where the cause of action arose;
(4) A County where a transaction or occurrence took place out which the cause
of action arose.
Subsection (b) of the aforementioned Rule further provides that an action upon
a policy of insurance against an insurance company may be had in the County
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designated in subdivision (a) of the Rule cited above. Pa. R.C,P. 2179(b)(1).
Clearly, therefore, the consent of the Defendants is not a necessary
prerequisite for detennining venue.
Generally, venue is proper under Pa. R.C.P. 2179(a)(4) in a contract action such
as we have here, where the making of the contract occurred in the County of
requested venue.
"The making of a contract, which takes place when the offer is
accepted, undoubtedly constitutes a 'transaction or occurrence'
sufficient to establish venue." Lucas Enterprises, Inc. v. Paul C.
Hannon Company, Inc., 273 Pa. Super. 422, 417 A.2d 720, at 721 (Pa,
Super. 1980) citing Craig v. W:J. Thiele & Sons, Inc., 395 Pa. 129, 149
A.2d 35, (1959).
The question then is whether the offer was accepted in Cumberland County.
A simple reading of the contract documents indicates that it was.
The Quotation, subsequently revised, originally forwarded to the Defendants
by the Plaintiff, clearly states on the front of the Quotation "see terms and conditions
on reverse side." The Terms and Conditions on the reverse side contain the following
language.
"7. The acceptance of this quotation by a signature hereon, by
telephone, written purchase order or subcontract, shall constitute a
contract of sale only after written acknowledmnent by Mason-Norton
Company, Inc.
8. This quotation shall be deemed a part of the Agreement between
. Mason-Norton Company, Inc. and the buyer even if not specifically
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mentioned in any written or verbal order given to Mason-Norton
Company, Inc. by the buyer.
9. A written acknowledgment from Mason-Norton Company, Inc. shall
constitute an acceptance of the contract in Cumberland County,
Pennsylvania. Mason-Norton Company, Inc. will only perform on the
. basis of the terms and conditions herein stated, which term shall
govern, in case of conflicts between the buyer's order and this
quotation.., "
Upon receipt of the original Quotation containing the aforementioned
language, Defendants submitted their purchase order which is attached to the
Plaintiff's Complaint as Exhibit "B". Nowhere in that purchase order does it indicate
an objection to the terms set forth in the Quotation, and, by implication accept those
terms.
Thereafter, Plaintiff forwarded a revised quotation containing the exact terms
set forth in the Defendant's purchase order, which confirmed the purchase order by
its clear terms, and restated the language cited above in paragraphs 7 through 9 on
the reverse side Terms and Conditions. Additionally, the written acknowledgment
referred to in paragraph 9 of the Plaintiff's Terms and Conditions was forwarded with
the revised Quotation which written acknowledgment also contains the lcinguage
"we thank you for your order which is deemed to be accepted in
. Lemoyne, Pennsylvania, Cumberland County, subject to the approval of
your credit and your acceptance of our terms and conditions as stated
on the reverse side of this acknowledgment and our Ouotation attached
herewith. Please be advised that we make this statement and we have
taken the precaution of making you aware that our terms and conditions
of sale will prevail and that your Purchase Order will agree with our
Ouotation. We are returning a copy of quote and/or your order herewith.
Should you not be satisfied, please advise us in writing within ten days
. of the date of this order acknowledgment... "
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Again, on the reverse side of the acknowledgment, is the same language cited
above. Thereafter, no objection was received by the Defendants to the terms of the
contract, and the Plaintiff proceeded to fill the order, ship the items in accordance
with the contract, and bill the Defendant Fries Construction Management, Inc, in
accordance with the contract. It is clear that by sending out the purchase order, the
Defendant offered to purchase some of the items originally quoted by the Plaintiff
(which original Quotation was for a different amount of materials, at different prices,
hence the revised Quotation),and the Plaintiff then accepted the offer by revising the
Quotation, and forwarding an acknowledgment of the order a few days later. Hence,
the contract was formed when the contract was accepted by the Plaintiff, and
therefore was formed in Cumberland County, Pennsylvania. Additionally, by its own
terms, the contract between the parties clearly shows that the contract was
accepted, and hence formalized, in Cumberland County, Pennsylvania, which terms
were never objected to by the Defendants at anytime either prior to or after the
formation of the contract, or even after shipment of the goods in conformity with the
contract. Anyway the contract is looked at, it was formalized in Cumberland County,
Pennsylvania, and as such a transaction or occurrence took place in the Cumberland
County, and venue is proper here.
i
Furthermore, venue is properly placed in Cumberland County, as Cumberland
County is the place Defendants failed to make payment. Where payment is due, at
the Plaintiffs place of business, venue is proper there in a breach of contract action
alleging failure to make payment. Lucas Enterprises, supra. "The Rille is universal
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in the absence of agreement to the contrary, that payment [is] due at [Plaintiff's]
residence or place of business, and venue is proper there in a breach of contract
action alleging failure to make payment." Triffin v. Turner, 348 Pa. Super. 27, 501
A.2d 271 (1985), citing Lucas Enterprises, supra. Again, Defendants actually made
partial payment to Plaintiff in Cumberland County, thereby acquiescing in the place
where venue would be proper (and arguably creating another transaction or
occur~ence in Cumberland CO'lUlty it~elf).
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For the reasons set forth above, it is clear that the contract was formed in
Cumberland County, Pennsylvania, payments were made to Cumberland County,
Pennsylvania, and are continued to be owed in Cumberland County, Pennsylvania,
and therefore venue is proper in this County. The Preliminary Objections of the
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Defendants should be dismissed, with the Defendants being required to file a
response to the Complaint within twenty days thereafter.
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Respectfully submitted,
PURCELL, KRUG & HALLER
BY
o urcell, Jr.
I.D #29955
171 9 North Front Street
arrisburg, PA 17102
(717) 234-4178
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CERTIFICATE OF SERVICE
I, John W. Purcell, Jr., Attorney for the Plaintiff, hereby certify that a true and correct
copy of the foregoing was served on the Defendants by forwarding said copy to their
attorney at the follOwing address, by first class U.s. Mail on November 29,2000:
Henry J. Costa, Jr., Esquire
Robert R. Watson, Jr., Esquire
Flamm, Boroff & Bacine, PC
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, P A 194
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FLAMM, BOROFF & BACINE, PC
By: Henry J.Costa, Jr., Esquire
Atty. ID No. 24553
By: Robert R. Watson, Jr., Esquire
Atty.ID No. 83787
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, PA 19422
(215) 239-6000
Attorneys for Defendants
MASON-NORTON COMPANY, INC.,
Plaintiff
v.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
FRIES CONSTRUCTION
MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT
COMPANY OF MARYLAND,
Defendants
No. 00-4936
ANSWER AND NEW MATTER
1. Admitted.
2. Admitted
3, Admitted.
4. Denied. Plaintiff's allegations in paragraph 4 constitute conclusions of law
to which no response is required. If and to the extent they constitute allegations of fact,
they are denied. 8y way of further answer, Exhibit "A" is a quotation prepared by the
Plaintiffs, and Exhibit "8" is a purchase order prepared by Fries Construction
Management, Inc. ("Fries"). 80th of these exhibits are written documents which speak
for themselves.
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5, Denied. Plaintiff's allegations in paragraph 5 constitute conclusions of law
to which no response is required. If and to the extent they constitute allegations of fact,
they are denied. Exhibit "e" is a written document which speaks for itself.
6. Admitted in part and denied in part. It is admitted that certain items were
shipped from Plaintiffs to Fries at Fries' office or its work site. Whether those items
were delivered in a timely fashion in order to comply with project timetables, or were
delivered in a condition conforming with specifications for those items, and whether their
delivery gave rise to an obligation on Fries' part for payment is denied. The balance of
the allegations set forth in paragraph 6 are denied.
7. Admitted in part and denied in part. It is admitted that amounts which
were due and owing Plaintiff were paid over to Plaintiff. It is denied that a balance of
$9,858.00 remains due and owing to Plaintiff. The balance of the allegations set forth in
paragraph 7 are denied as conclusions of law to which no response is required. If and
to the extent that they constitute allegations of fact they are denied.
8. Denied. Plaintiff's allegations in paragraph 8 constitute conclusions of law
to which no response is required. If and to the extent they constitute allegations of fact,
they are denied.
9. Admitted in part and denied in part. It is admitted that Fries has made
payments to Plaintiff for certain items delivered. It is denied that a balance of $9,858,00
remains due and owing to Plaintiff. Exhibit "0" is a written document which speaks for
itself. The balance of the allegations set forth in paragraph 9 are denied as conclusions
of law to which no response is required. If and to the extent that they constitute
allegations offactthey are denied.
77533 vi
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10. Denied. Plaintiffs allegations in paragraph 10 constitute conclusions of
law to which no response is required. If and to the extent they constitute allegations of
fact, they are denied.
COUNT I
11. Answering Defendants incorporate paragraphs 1 through 10 above as if
fully set forth herein at length.
12. Denied. Plaintiffs allegations in paragraph 12 constitute conclusions of
law to which no response is required. If and to the extent they constitute allegations of
fact, they are denied.
WHEREFORE, Defendants, Fries Construction Management, Inc. and Fidelity
and Deposit Company of Maryland, hereby demand that this Court dismiss Plainitff's
claims against them with prejudice.
COUNT II
13. Answering Defendants incorporate paragraphs 1 through 12 above as if
fully set forth herein at length.
14. Admitted in part and denied in part. It is admitted that Fries' contract for
the Eddystone Community Center was one arising under the Public Works Contractor's
Bond Law of 1967. The balance of Plaintiffs allegations in paragraph 14 are denied.
15. Admitted.
16. Denied. Exhibit "En is a written document which speaks for itself.
17. Admitted.
77533 v1
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18. Denied. By way of further answer, it is admitted that certain items were
shipped from Plaintiffs to Fries at Fries' office or its work site. Whether those items
were delivered in a timely fashion in order to comply with project timetables, or were
delivered in a condition conforming with specifications for those items, and whether their
delivery gave rise to an obligation on Fries' part for payment is denied.
19. Denied. Plaintiff's allegations in paragraph 19 constitute conclusions of
law to which no response is required. If and to the extent they constitute allegations of
fact, they are denied.
20. Denied. By way of further answer, it is admitted that certain items were
shipped from Plaintiffs to Fries at Fries' office or its work site. Whether those items
were delivered in a timely fashion in order to comply with project timetables, or were
delivered in a condition conforming with specifications for those items, and whether their
delivery gave rise to an obligation on Fries' part for payment is denied.
21. Denied. Plaintiff's allegations in paragraph 21 constitute conclusions of
law to which no response is required. If and to the extent they constitute allegations of
fact, they are denied.
22. Denied. Plaintiff's allegations in paragraph 22 constitute conclusions of
law to which no response is required. If and to the extent they constitute allegations of
fact, they are denied.
23. Denied. Plaintiff's allegations in paragraph 23 constitute conclusions of
law to which no response is required. If and to the extent they constitute allegations of
fact, they are denied.
77533 vi
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WHEREFORE, Defendants, Fries Construction Management, Inc. and Fidelity
and Deposit Company of Maryland, hereby demand that this Court dismiss Plaintiff's
claims against them with prejudice.
NEW MATTER
24. Answering Defendants incorporate paragraphs 1 through 23 above as if
fully set forth herein at length.
25. The outstanding payment which the Plaintiff claims is due from the
Defendants revolves around large display cases which were to be delivered to a public
construction project for a community center in Eddystone, Delaware County,
Pennsylvania.
26. When the said display cases were delivered, they were delivered long
after the date which Fries contracted for delivery to occur, and were damaged and
required repair by Fries prior to installation.
27. Fries has been forced to file a lawsuit in the Chester County Court of
Common Pleas against the Borough of Eddystone et al. at Docket No. 00-02567 in
order to secure payment of monies which remain due and owing on the project.
28. The action which Fries has filed is still in the early stages of pleading.
29. Upon information and belief, Eddystone is withholding payment to Fries as
a direct result of the late delivery of the display cases from Plaintiff.
30. The failure of Plaintiff to comply with the terms of delivery has forced Fries
to incur substantial attorneys' fees and costs in attempting to collect monies still due
and owing for the Eddystone project, in addition to defending against Plaintiff's claims in
this matter.
77533 vi
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31. Any amounts which Plaintiff might be able to recover against Fries in this
action will be met or exceeded by the amounts of damages which Plaintiff's delay in
delivery has caused Fries to incur.
32. Plaintiff's claims are subject to equitable recoupment.
33. Plaintiff's claims are barred by the doctrine of breach of contract.
34. Plaintiff's claims are subject to set-off.
35. Plaintiff's claims are barred due to failure of consideration.
36. Plaintiff's claims are barred due to misrepresentation.
37. Plaintiff's claims are barred due to waiver.
WHEREFORE, Defendants, Fries Construction Management, Inc. and Fidelity
and Deposit Company of Maryland, demand that this Court dismiss Plaintiff's claims
against them with prejudice.
Respectfully submitted,
DATE: Il/ZCf /O()
,
~&BACINE' PC
HENRYJ'COST~
ROBERT R. WATSON, JR.
Attorneys for Defendants
77533 vi
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J, JllmAS Frip.s, President of Fries Construction M~nagement, Ine.. varify
that I am able to make this verlncatfon on behalf of Frio$ Construction, and that
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the statements of faet made In the foregoing Answer a~ New Meller are true
and correct to the best of my knowledge or Information ~nd belief. I understand
Ihlll false 511i1t8rnltnl~ herein are made subject to the penl!lltifts of 1B Pa. C.S. ~
41;104, relating to unsworn falsification to authorities.
FRIES CONStRUCTION
MANAGEMF:NT, INC.
Date:
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VERIFICATION
1<~.w ,CI~ i "".. ~~1&r Fidelity and Deposit
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Company of Maryland, verify that I am ahle to make this verification on behalf of
F&D, and that the statements of fact made in the foregoing Answer and New
,
Matter are true and correct to the besl of my knowledge or information and belief.
I understand that false statements herein are made subject to the penalties of 18
Fa. C.S. !i 4904, relating to unsworn falsificatlol'L to authorities.
FIDELITY AND DEPOSIT COMPANY
Uf MARYLAND
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FLAMM, BOROFF & BACINE, PC
By: Henry J. Costa, Jr., Esquire
Atty. ID No. 24553
By: Robert R. Watson, Jr., Esquire
Atty. ID No. 83787
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, PA 19422
(215) 239-6000
Attorneys for Defendants
MASON-NORTON COMPANY, INC.,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v.
CIVIL ACTION - LAW
FRIES CONSTRUCTION
MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT
COMPANY OF MARYLAND,
Defendants
No. 00-4936
CERTIFICATE OF SERVICE
I, Robert R. Watson, Jr., hereby certify that a true and correct copy of the
Defendants' Answer and New Matter was served by first class mail, postage prepaid
upon the following individual:
John W. Purcell, Jr., Esquire
PURCELL, KRUG & HALLER
1719 N. Front Street
Harrisburg, PA 17102-2392
DATE: !ZI Zq /00
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HE RY J. COSTA, JR.
ROBERT R. WATSON, JR.
Attorneys for Defendants
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MASON-NORTON COMPANY, INC.,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
vs.
: CIVIL ACTION-LAW
FRIES CONSTRUCTION
MANAGEMENT, INC., AND : NO. 00-4936
FIDELITY AND DEPOSIT
COMPANY OF MARYLAND,
Defendants
RESPONSE TO NEW MATTER
24. No response required.
25. Admitted.
26. Denied. After reasonable investigation, Plaintiff is without lmowledge or
information sufficient to form a belief as to the truth of the averment and strict proof
thereof is demanded at trial.
27. Denied. After reasonable investigation, Plaintiff is without lmowledge or
information sufficient to form a belief as to the truth of the averment and strict proof
thereof is demanded at trial. In further reply, Defendants unrelated litigation with
other parties is irrelevant to its obligation under its contract with the Plaintiff.
28. Denied. See response to No. 27.
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29. Denied. See response to No. 27.
30. Denied. After reasonable investigation, Plaintiff is without knowledge or
information sufficient to form a belief as to the truth of the averment and strict proof
thereof is demanded at trial.
31. Denied. See response to No. 27.
32. Denied as a conclusion of law.
33. Denied as a conclusion of law.
34. Denied as a conclusion of law.
35. Denied as a conclusion of law.
36. Denied as a conclusion of law.
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37. Denied as a conclusion of law.
Respectfully submitted,
BY
W. Purcell, Jr.
/1. . #29955
i/ 719 North Front Street
Harrisburg, PA 17102
(717) 234-4178
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VERIFICATION
COMPANY NAME: MASON-NORTON COMPANY
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I verify that the statements made in the foregoing Response to New Matter are true and
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correct.
I understand that false statements herein are made subject to the penalties of 18 PA C.S.
3 4904 relating to unsworn falsification to authorities.
Dated: .::J/!rI/. ST.ft ;zool
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CERTIFICATE OF SERVICE
I, John W. Purcell, Jr., Attorney for the Plaintiff, hereby certify that a true and correct
copy of the foregoing was served on the Defendants by forwarding said copy to their
attorney at the following address, by first class U.S. Mail on January 15, 2001:
Henry J. Costa, Jr., Esquire
Robert R. Watson, Jr., Esquire
Flamm, Boroff & Bacine, PC
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, PA 19422
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MASON-NORTON
COMPANY, INC.,
Plaintiff
v.
FRIES CONSTRUCTION:
MANAGEMENT, INC.
and FIDELITY AND
DEPOSIT COMPANY OF :
MARYLAND,
Defendants
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 00-4936 CIVIL TERM
ORDER OF COURT
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AND NOW, this 19th day of March, 2001, upon consideration of Petition of
Defendants' Counsel for Leave To Withdraw, a Rule is hereby issued upon Defendants
to show cause why the relief requested should not be granted.
RULE RETURNABLE within 20 days of service.
John W. Purcell, Jr., Esq.
1719 North Front Street
Harrisburg, PA 17102-2392
Henry J. Costa, Jr., Esq.
Robert R. Watson, Jr., Esq.
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, PA 19422
Petitioners
BY THE COURT,
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James Fries, President
Fries Construction Management, Inc.
459 Lancaster Avenue
Frazer, PA 19355
Defendant
Fidelity and Deposit
Company ofMary1and
720 Grant Building
Pittsburgh, PA 15219
Defendant
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MASON-NORTON COMPANY, INC.,
Plaintiff
v.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
FRIES CONSTRUCTION
MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT
COMPANY OF MARYLAND,
Defendants
No. 00-4936
Judge J. Wesley Oler, Jr.
ORDER
AND NOW, this
day of
, 2001, upon
consideration of the verified Petition of Plaintiff's Counsel for Leave to Withdraw, it is
hereby ORDERED and DECREED that said petition is GRANTED and that petitioners
Henry J. Costa, Jr., Esquire, Robert R. Watson, Jr., Esquire and Flamm, Boroff &
Bacine, PC be permitted to withdraw their appearance of record for the defendants in
the above matter.
J.
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MASON-NORTON COMPANY, INC.,
Plaintiff
v.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
FRIES CONSTRUCTION
MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT
COMPANY OF MARYLAND,
Defendants
No. 00-4936
Judge J. Wesley Oler, Jr.
PETITION OF DEFENDANTS' COUNSEL FOR LEAVE TO WITHDRAW
1. This action was filed on July 12, 2000, and Petitioners were shortly
thereafter retained by Defendants to represent them in the matter.
2. On January 2, 2001, after consultation with the Defendants, Petitioners
filed an Answer on Defendants' behalf, verified by Defendants, denying the allegations
of the Complaint.
3. Since that date, Petitioners have heard nothing from Defendant Fries
Construction Management, Inc. ("Fries"), to whom Defendant Fidelity and Deposit Co. of
Maryland ("F&D") assigned its defense in this action.
4. Despite Fries' representations that it was working to secure the
representation of other counsel to represent the Defendants' interests, Petitioners have
been unable to ascertain who Defendants' new counsel is. Petitioners have written a
number of times to the last known address of Fries, but have received no response.
5. On numerous occasions since December 2000, a loss of confidence
between attorney and client has arisen, and as a result thereof, Petitioners have
84078 vI
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requested that Fries obtain new counsel so as not to prejudice the Defendants' position
in the litigation.
6. The case will be listed for trial in the near future and Petitioners will be
unable to prepare the defense of the action without the presence or availability of the
Defendants.
7. Petitioners' continued representation of the Defendants has been
rendered unreasonably difficult by virtue of the clients' absence, and good cause exists
therefore under Rule 1.16 of the Pennsylvania Rules of Professional Conduct for
Petitioners' withdrawal of appearance in this case.
8. Pursuant to Local Rule 206-2(c), counsel for Plaintiff does not object to
this Petition.
WHEREFORE, Petitioners, Henry J. Costa, Jr., Robert R. Watson, Jr. and
Flamm, Boroff & Bacine, P.C. respectfully request that that this Court grant their petition
for leave to withdraw their appearance as counsel for Defendants.
Respectfully submitted,
DATE: ?/9/1
~~~PC
By: 11 . .
HENRY J. C - STA, J";
ROBERTR. WATSON, JR.
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
BlueBell, PA 19422
(215) 239-6000
Petitioners
84076 vI
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VERIFICATION
I, Henry J. Costa,Jr., shareholder of Flamm, Boroff & Bacine, PC ("FBB"), verify
that I am able to make this verification on behalf of myself and of FBB, and that the
statements of fact made in the foregoing Petition for Leave to Withdraw Appearance are
true and correct to the best of my knowledge or information and belief. I understand
that false statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904,
relating to unsworn falsification to authorities.
By:
HENRY J. C
Date:;/t/l
84078 vI
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VERI FICA TION
I, Robert R. Watson, Jr., verify that the statements of fact made in the foregoing
Petition for Leave to Withdraw Appearance are true and correct to the best of my
knowledge or information and belief. I understand that false statements herein are
made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to
authorities.
Date: ?je/ I
BY:~~~
ROBERT R. WATSON, JR.
84078 vI
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MASON-NORTON COMPANY, INC.,
Plaintiff
v.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
FRIES CONSTRUCTION
MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT
COMPANY OF MARYLAND,
Defendants
No. 00-4936
CERTIFICATE OF SERVICE
I, Henry J. Costa, Jr., hereby certify that a true and correct copy of the Petition to
Withdraw as counsel was served by first class mail, postage prepaid upon the following
individual:
John W. Purcell, Jr., Esquire
PURCELL,KRUG & HALLER
1719 N. Front Street
Harrisburg, PA 17102-2392
James Fries, President
Fries Construction Management, Inc.
459 Lancaster Avenue
Frazer, PA 19355
DATE: 5/8/'
FLAMM, rOROFF & BACINE, PC
By: 1;~~~
HENRY J. COSTA, JR.
ROBERT R. WATSON, JR.
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, PA 19422
(215) 239-6000
84078 vi
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
MASON-NORTON COMPANY, INC.,
Plaintiff
No. 00-4936
v.
CIVIL ACTION - LAW
FRIES CONSTRUCTION
MANAGEMENT, INC. AND
FIDELITY AND DEPOSIT
COMPANY OF MARYLAND,
Defendants
WITHDRAWAL OF APPEARANCE
TO THE PROTHONOTARY:
Kindly withdraw the appearance of this firm, and Henry J. Costa and Robert R.
Watson, Jr., as attorneys for Defendants, in the above-captioned action.
By:
1
Dated: ~. ~,91
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter my appearance on behalf of Defendants in the above-referenced
action.
EWING & KREISER, P.C.
Dated:
5"/7/0/
By: r;?~? L-[J
Robert P. Ewing
Attorney I.D. #45284
900 East Eighth Avenue, Suite 300
King of Prussia, PA 19406-1339
(610) 768-8927
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CERTIFICATE OF SERVICE
I, Robert P. Ewing, Esquire, hereby certify that on this 12th day of
November, 2001, I served a true and correct copy of the foregoing Praecipe for
Withdrawal and Entry of Appearance on the following counsel by first class
United States mail, postage prepaid, addressed as follows:
John W. Purcell, Jr., Esquire
1719 North Front Street
Harrisburg, PA 17102-2392
Henry J. Costa, Esquire
Flamm, Boroff & Bacine
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, PA 19422
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Robert P. EWing
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COURT OF COMMON PLEAS
IN AND FOR CUMBERLAND COUNTY
MASON-NORTON COMPANY, INC.
Plaintiff
CIVIL ACTION
v.
NO. 00-4936
FRIES CONSTRUCTION MANAGEMENT, INC. :
and
FIDELITY & DEPOSIT COMPANY
OF MARYLAND, INC
Defendants
PRAECIPE TO SETTLE,
DISCONTINUE AND END
To the Prothonotary:
Kindly mark the above-captioned action settled, discontinued and ended, with prejudice.
By:
EWING & KREISER
By:
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ROBERT P. EWING, ES
LL, ESQUIRE
1719 North Front Street
Harrisburg, P A. 17102-2392
900 E. Eighth Avenue, Suite 300
King of Prussia, PA 19406-1361
Attorneys for Plaintiff
Attorneys for Defendants
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