HomeMy WebLinkAbout97-05294
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Judge CltftolProlll 'f,;- ;
CAS.: NO,: r.' COURTR;-)()M NO,: ~ 'If -
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DOCKET NO,: 9'7 5:.J'i"1 DATE: /f.5'CJI
Juror' Nama Random No.
0'.> 5.J ~'I.I\ JdJl.,. ~ -1146167861
73 Hoo.er, James E -1098373821
61 Plumley, Jay F -1038114086
it I :1rtr.\lC' t~J 1..1.161(1, h811" 9 .1976189714
Z. 41 Tanmelll, Marla F -1510577959
"rt )fft.nl..~ TO 8...,(.., R_~.Ju J( -1336410537
'jji ){'\ ItA " ~I.I""J' L,.I ... -1180010734
77 Bear, Arthur E -1167181041
oS 15 At.L.....II~, 111I.. i -1112106911
63 Stahl, Bernice A -'190810776
J8 n.1~1I.~, J~..... iiI . 776312881
40 POWell, Jam" H Jr .756471111
64 Ban~ert, Edra L -658789559
67 Galdencio, Kathy -635391530
54 Rekully, Charles J -505974118
81 Garcia, Deborah K -431313043
~ 56 g~tld,,", AII~.l It. Jr - -331539074
43 ShURh.rt. PtllRY J -171363866
61 Vorm, April -161114973
69 Smith, Darryl J 397116404
tf< - !8 IIH..~hL I~ J4hll II IS. 399178919
1l~ 59 Brown, Pamela R 746417051
n n..,h,.. (;11;1 nud!C' ~ 817487691 -
74 Melt..,ky, Adam R 1145075099
60 WelRI, Herbert Jr 1538911069
76 Falcone, Frank G 1690118711
44 Brinton, Gary L 1786659887
50 Curry, Robert E 1894687111
71 BrownlnK, Lila A 1058571405
68 E..ns, Lom. R 1131068575
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KI'VIN A, Hus
JUOOI
CUMSI"~ANO COUNTY
CA"~II~I, "INN'V~VANIA 17013
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LAW O"ICI"lI
SNELBAKER.
BRENNIMAN
8r SPARE
"various minor finishing and repair work", On the contrary, the
work, as understood by both parties, included extensive
remodeling and renovation matters throughout the existing
structure. It is admitted that the proposal did not include
floor coverings, local and state permits, electric or plumbing
costs.
5. It is admitted that the parties' contract was oral as
distinguished from written and it is admitted that the floor
plan, "Exhibit B" to Amended Complaint, was the basis of the
scope of work to be performed as stated. It is denied that
Plaintiff's work and obligations were limited as stated in the
Amended Complaint. On the contrary, Plaintiff was required to
perform all work and supply all materials within the scope of
work and not confined to unspecified "various" matters as stated
in paragraph 5 of the Amended Complaint.
6. It is admitted that the contract was founded on a labor
(time) and materials basis. It is denied that said contract was
unlimited as averred in the Amended Complaint. On the contrar~,
it is averred that the parties agreed that Plaintiff's
entitlement would not exceed the amount of its original proposal,
to wit: $89,946.
7. The averments in paragraph 7 of the Amended Complaint
are denied. On the contrary, it is averred that the parties did
not agree on periodic payments and that there was no discussion
r agreement on the terms of payment as alleged in said paragraph
7. It is averred that said terms relating to payment were
-2-
LAW O,,1lCU
SNlL.BAKlER.
BRENNEMAN
8l SPARE
matters raised by Plaintiff for the first time in its original
Complaint and do not reflect any agreement between the parties.
8. It is admitted that Plaintiff began its work on or about
October 28, 1996. It is denied that the work began in accordance
with the terms set forth in the Amended Complaint. On the
contrary, it is averred that the parties' terms and conditions
were as stated hereinabove and in New Matter below.
9. Admitted.
10. It is denied that the scope of work and plans were
modified by "numerous" changes and alterations to the plans
requested by Defendant. On the contrary, Defendant requested
only minor changes, i.e, addition of one pocket door, install 4
frame openings to receive x-ray reading boxes for the agreed
additional cost of $300, and realign interior walls in patient
reception area during the framing stage.
After reasonable investigation, Defendant is without
knowledge or information suffJ.cient to form a belief as to the
truth of the averments (a) that the prospective tenant requested
changes and alterations, and (b) that Plaintiff kept detailed
records of the alleged extra time and materials and, therefore,
the same are deemed to be denied pursuant to Pa.R.C.P. 1029(c)
and proof thereof is demanded at the trial of the case, if
relevant..
It is denied, if otherwise inferred, that the
prospective lessee had any right or authority to request chanq..
and alterations at any cost to Defendant. On the contrary, it i.
-3-
LAW O""CII.
SNI:L.BAKI!:R.
SRI:NNIMAN
Be SPARE:
averred that if Plaintiff made any changes or alterations at the
lessee's request, it did so without Defendant's knowledge or
agreement.
11. It is admitted that "Exhibit C" to the Amended Complaint
was a revised plan outlining the scope of work and mutually
accepted by the parties as a revision to the original plan of
"Exhibit B". If inferred from this allegation that the monetary
terms were likewise modified, any such inference is denied. On
the contrary, it is averred that Plaintiff agreed to perform the
work and provide the materials to execute the scope of work shown
on "Exhibit C" on the same terms and conditions as set forth
hereinabove and in New Matter below.
12. Except for Defendant's insistenoe that Plaintiff perform
its work during the time as originally provided (see New Matter
below), all of the averments in paragraph 12 of the Amended
Complaint are denied. On the contrary, it is averred that
William J. Lumadue, Jr., had no participation in the planning,
negotiating or otherwise participating in the transaction between
Defendant and Plaintiff. And further, it is averred that neither
William J. Lumadue, Jr., nor any other person on behalf of
Defendant authorized Plaintiff to do or perform any matter at the
request of the prospective lessee at Defendant's expense. It is
averred by way of further defense that Plaintiff knew of the need
to complete its work in a timely manner to permit the prospective
lessee to use the subject premises within a given time, 3nd
Plaintiff promised and agreed to do so within the terms of the
-4-
LAW Ol'I'ICI[II
SNII.BAJ(IR.
e"INN!MAN
81 SPARE
parties' agr'eement as outlined above and in New Hatter below.
13. All of the averments in paragraph 13 arQ denied and the
response in paragraph 12 hereinabove is incorporated herein by
referpnce thereto as further response.
14. Admitted.
15. Admitted.
16. Admitted.
17. Admitted.
18. Admitted.
19. It is denied that the invoices sent by Defendant
reflected amounts owing pursuant to the "Contract" alleged by
Plaintiff. On the contrary, the parties' contract is properly
stated as averred hereinabove and in New Hatter below.
After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of the averment that the invoices reflect "all of the labor
and materials expended by Plaintiff on the subject property" and,
therefore, the same is deemed to be denied pursuant to Pa.R.C.P.
1029(c) and proof thereof is demanded at the trial of the case,
it relevant.
It is admitted that the invoices in "Exhibit 0" are
copies of documents s6nt to Defendant.
20. It is admitted that invoices in amounts indicated were
sent to Defendant. For all the reasons set forth herein, it i.
denied that Defendant is obligated to Plaintiff in the amount ot
$89,780.94.
-5-
LAW O....ICIUI
SNELI!lAKER.
BRENNIMAN
8l SPARE
21. It is denied thbt Plaintiff requested payment as
averred. While it is admitted that various invoices were
received, it is denied that Plaintiff made any specific requests
for payment. It is denied that Defendant "failed" to pay said
invoices. On the contrary, it is averred that for all of the
reasons set forth hereinabove and hereinbelow, Defendant was
under no obligation to pay said invoices and did not do so.
22. Admitted.
23. It is admitted that Plaintiff ceased working at
Defendant's premises on March 27, 1997, but it is denied that it
did so for non-paYJ11ent of invoices. On the contrary, over
Defendant's protest and objection, Plaintiff informed Defendant
that it had other work for another customer which it needed to
perform on an exigent basis and would return to complete
Defendant's project after satisfying the other customer.
24. It is admitted that invoices were sent as averred and
that "Exhibit E" is a summary thereof. However, this admission
does not constitute an admission of liability therefor. On the
contrary, for all the reasons set forth hereinabove and below,
Defendant is not obligated to Plaintiff.
25. Admitted.
26. It is denied that $124,523.55 is owing to Plaintiff. On
the contrary, for all the reasons set forth hereinabove and in
New Matter hereinbelow, Plaintiff is not entitled to further
payment beyond that paid to date. Plaintiff breached its
contract because it failed to perform its work in a timely manner
-6-
u,w O'l"ICU
SNIL.BAI<ER,
BRENNEMAN
& SPARE
(and failed to complet~ its work), did not perform its work in a
good and workmanlike manner, and improperly billed Defendant for
excessive and improper amounts.
COUNT I - BREACH OF CONTRACT
27. All of Defendant's responses in paragraphs 1 through 26
hereinabove are incorporated herein by reference thereto in
response to paragraph 27 of the Amended Complaint.
28. Admitted.
29. The averments in paragraph 29 of the Amended Complaint
are denied as stated. On the contrary, the averments hereinabove
and in New Matter below are incorporated herein by reference
thereto.
30. The averments in paragraph 30 of the Amended Complaint
are denied. On the contrary, the averments in paragraph 7
hereinabove are incorporated herein by reference thereto.
31. It j,s admitted that Plaintiff submitted various
invoices. It is denied that said invoices were submitted in
accordance with the parties' agreement. On the contrary, all of
the averments contained hereinabove and in New Matter hereinbelow
are incorporated herein by reference thereto.
32. It is denied that Defendant became delinquent with
respect to any Obligation to Plaintiff. On the contrary, and for
all the reasons set forth hereinabove and in New Matter
hereinbelow, Plaintiff breached its contract with Defendant. The
averments in paragraph 26 hereinabove are specifically relevant
-7-
LAW Olll'"lClt1l
SNEL.BAKEA.
BRINNEMAN
&: SPARE
hereto and are incorporated herein by reference thereto.
33. It is admitted that Plaintiff has submitted the alleged
invoices to Defendant. It is d~nied that said invoices are owing
and that Defendant is delinquent with regard thereto. On the
contrary, it is averred that Plaintiff breached its contract with
Defendant for all the reasons set forth hereinabove and in New
Matter below and is indebted to Defendant in the amount set forth
in Counterclaim below.
34. The content of paragraph 34 is a conclusion and argument
of law to which no response is required and the same is deemed to
be denied. In the event said content is determined to be factual
in allegation, it is denied for all the reasons set forth
hereinabove and in New Matter and Counterclaim below.
35. It is denied that Plaintiff performed its work in a
timely manner in accordance with the parties' agreement. On the
contrary, it is averred that Plaintiff promised and agreed to
complete the project within 75 working days from October 28,
1996, but failed and refused to fulfill said obligation to the
present time. It is further denied that Plaintiff performed its
work "satisfactorily". It is averred that the standard of
performance is whether the work was done in a good and
workmanlike manner. It is averred that Plaintiff's work was not
performed in eithe. a sa"isfactory or good and workmanlike
manner, said work b( ..Ig lncomplete, shoddy and substandard
resulting in loss of value to Defendant and additional cost to
remedy, all as set forth in New Matter and Counterclaim below,
-8-
the averments of which are incorporated herein by reference
thereto.
36. The content of paragraph 36 contains only conclusions of
law to which no respon~e is required and the same are deemed to
be denied. It is further averred that Plaintiff has averred no
facts by which a "fiduciary" relationship exist'ild between the
parties and has not cited any "statutory" authority. For all the
reasons set forth hereinabove and in New Matter ~nd Counterclaim
below, Plaintiff is the breaching party and not Defendant.
37. For all the reasons set forth hereinabove and in New
Matter and Counterclaim below, it is denied that Defendant is
obligated to Plaintiff in the amount of $124,523.55 or any other
amount.
38. F'or all the reasons set forth hereinabove and in New
Matter and Counterclaim below, it is denied that Plaintiff has
suffered the damages alleged and that Defendant is obligated to
Plaintiff. On the contrary, it is averred that Defendant is the
injured party and is entitled to the damages $et forth in
Counterclaim below which is incorporated herein by reference
thereto.
WHEREFORE, Defendant requests your Honorable Court to
dismiss the Amended Complaint and enter judgment against
Plaint.tff and in favor of Defendant.
LAW O'I'ICIIJ
SNILBAKER.
e.INN"MAN COUNT II - UNJUST ENRICHMENT
81 $PAI'tE
39. All of Defendant's res~onees in paragraphs 1 throuqh 38
hereinabove are incorporated herein by reference thereto in
-9-
LAW O~"CI.
SNI:LSAKIER.
BRINNEMAN
a SPARE
respons, to paragraph 39 of the Amended Complaint.
40. It is denied that Plaintiff conferred the benefit as
alleged in paragraph 40 of the Amended Complaint. While it is
averred that a limited amount of Plaintiff's work is useful, it
is denied that all of Plaintiff's work was performed in
aCQordance with the parties' agreement. On the contrary and for
all the detailed reasons set forth hereinabove and in New Matter
and Counterclaim below, Plaintiff failed to complete its work as
agreed and failed to perform said work in a good and workmanlike
manner, thereby subjecting Defendant to various losses,
including, but not limited to, loss of value to its property.
41. The existence of a general contractual undertaking and
partial performance is admitted. For all the reasons set forth
hereinabove and in New Matter and Counterclaim below, it is
denied that Plaintiff performed its work in accordance with said
contract.
42. It is denied that Defendant has failed to remit payment
for any properly performed work or materials supplied. For all
the reasons set forth hereinabove and in New Matter anu
Counterclaim below, Plaintiff has failed to complete the project
and has caused Defendant damages and losses by such failure and
because of its deficient workmanship.
,
43. It is denied that Defendant has received the alleged
"full benefit of services and materials". On the contrary, it is
averred that Plaintiff's poor workmanship and failure to complete
he project as agreed ha~ caused Defendant additional expense,
-10-
l.AW OI"I"ICIES
SNKL.BAKI!:R.
BRlENNEMAN
a: SPAR!!
loss of value and other damages which outweigh and offset any
benefit which may otherwise have been conferred. By way of
further response and defense, the averments contained hereinabove
and in New Matter and Counterclaim hereinbelow are incorporated
herein by reference thereto.
44. It is denied that Defendant has been unjustly enriched
in any manner. On the contrary, it is averred that for all the
reasons set forth hereinabove and in New Matter and Counterclaim
balow, which are incorporated herein by reference thereto,
Defendant is the injured party and has suffered losses exceeding
any benefit arising from Plaintiff's work.
WHEREFORE, Defendant requests your Honorable Court to
dismiss Plaintiff's Amended Complaint and enter judgment against
Plaintiff and in favor of Defendant.
NEW MATTER
By way of further defense and response, Defendant avers the
following new matter:
45. All of the affirmative averments contained in paragraphs
3 through 44 hereinabove are incorporated herein by reference
thereto.
46. The parties' agreement required Plaintiff to furnish all
materials to do and perform the work included in the scope of
work in a good and workmanlike manner within 75 working days from
the date of commencement on a time and materials basis with a
maximum to be paid by Defendant of $89,946.
47. The scope of work agreed to be performed by Plaintiff is
-11-
LAW OIll"III"ICI:II
SNEI.BAKIER.
IJRINN[MAN
a SPARE
r.stlected on "Exhibit C" of the Amended complaint ltnd excludes
floor coverings, local or state permits, electric and plumbing
costs (said excluded matters to be the sole obligation of
Defendant). Said scope of work included both new construction of
certain new additions to an existing structure and all of the
remodeling and renovations of said existing structure.
48. Plaintiff knew from Defendant that the project was in
fulfillment of Defendant's obligation to a lessee (Hetrick).
49. Plaintiff commenced work at Defendant's premises on
October 28, 1996, thereby fixing the completion date of
February 18, 1997, being 75 working days after commencement date.
50. At no time did Defendant agree to extend the completion
date aforesaid.
51. Despite Defsndant's urging for completion, Plaintiff
failed to complete ths project by February 18, 1997.
52. On March 27, 1997, Plaintiff physically removed from the
project and refused to return to complete its work.
53. In order to mitigate its obligation to its tenant
(Hetrick), Defendant was required to engage other persons to
complete Plaintiff's work for the costs as follows:
A. Yingst Homes, Inc.: finish ceiling tile, install
baseboards, install counter top supports,
partial repair of Formica surfaces $ 2,394.00
B.
David McClure company: install dehumidifier
system 33,169.00
Getz Constr.uction: Install door, seal
mortar, enclose duct work 857.86
C.
D.
Getz Construction: install concrete
steps and pad
584.18
-12-
LAW O,-,-ICIU
SNIL8A1('[R.
BftINNlE:MAN
& SPARE
E.
Gary Deimler , Sons Construction, Inc.:
repair and complete roof
Phil Mentzer 'Son: floor repair and cleaning
Harrisburg Wall & Floor: baseboard
material
172.78
F.
1,616.45
150.00
G.
H.
Hershock's, Inc.: door closer to pool room
230.48
1.
Bob Baish Glass' Body Shop, Inc.: sliding
glass window and materials and installation
Jeff Bloomstock: complete carpeting
and floor repair
299.80
589.99
J.
1<.
Cumberland Valley Excavators, Inc.:
grade and pave parking/driveway
Boyd E. Diller Inc.: trash removal
Lumadue family members: clean, prepare
surfaces for painting, painting and
finishing (228 hours @ $15.00)
Painting and finishing supplies for
L. above
624.98
3,500.00
L.
34.16
M.
3,420.00
N.
TOTAL:
$47.643.68
54. Because of Plaintiff's defective work on the roof, a
substantial water leak developed on or about July 23, 1997.
55. upon notice from Defendant, Plaintiff failed and refused
to remedy the leak. Accordingly, Defendant was required to
secure the services of sechrist/Kreiser, Inc. to repair the roof
matter on an emergency basis at a cost of $230.00.
56. Because Plaintiff's work was not performed in a good and
workmanlike manner, Defendant will be required to expend the sum
of $37,500.00 to repair/restore the deficiencies as recited in
the estimate of Gary Deimler , Sons Construction, Inc., attached
-13-
LAW Ol'I'IC..
SNIL.I!,I,KEH.
BAINNIMAN
6 SPAPlE
hereto marked "Exhibit A" and incorporated herein by reference
thereto.
57. Plaintiff has sought to charge Defendant for items not
within the parties' agreement, to wit:
A. All labor at $30 per hour regardless of trade,
skill, experience or performance, said amount being
unreasonably high in the market area, the specific
amount thereof to be determined after pre-trial
discovery.
B. Additions to materials purchased above actual
costs paid to vendors, the specific amount thereof to
be determined after pre-trial discovery.
C. Non-material items, such as for example,
finish trowel - $31.31; cutsaw blade - $419.10;
replacement blades rasp - $5.16; quick mixer shaft -
$12.73; taping knife 5" - $9.05; c24 wheel with hub -
$18.62; blades from knife - $6.16; mileage to pick up
forms - $231.00; tolls to pick up forms - $17.00; waste
container - $883.51 and $939.87; mileage to take back
forms - $231.00; tolls - $19.70; 6" taping knife -
$10.59; 6" joint knife - $10.06; chip brush (1 1/2") -
$2.49; James Garling, engineering - $675.00 and $292.50
(totalling $3,814.85 preliminarily); and such other
amounts determined after pre-trial discovery.
D. Inclusion of the following items on
Plaintiff's invoices not furnished or installed by
-14-
LAW O",,'CI('
SNIL.BAKER.
BRENNEMAN
& SfltARE
Plaintiff:
(1) Invoice No. 32262: 3 items relating to
intorior sliding glass window totalling $786.07.
(2) Invoice No. 32451: item relating to
door stops in the amount of $249.10.
58. The parties' agreement aforesaid also included
preservation of Defendant's equipment and furnishings as
contained in the building to be renovated.
59. As a result of Plaintiff's failure to perform its
responsibility to Defendant under the terms averred in paragraph
58 above. Defendant lost the following items having the values
as indicated:
A. 20-foot aluminum extension lad<;ler: $120.00
B. 2 concrete benches @ $250: 500.00
TOTAL: $620.00
60. As a result of Plaintiff's failure to complete the work
as agreed, Defendant suffered a loss of rental income as follows:
A.
Monetary rent from date of required
completion (2/18/97) to date of
tenant's occupancy (5/11/97:
82 days @ $197.26
$16,175.32
B. Unreimbllrsed real estate taxes
under tenant's lease:
(1) county/Township-
82 days @ $3.62:
(2) School - 82 days @ $12.64
296.84
.1.036.48
1. 333.32
TOTAL:
517.508.64
61. As a result of Plaintiff's failure to complete the work
-15-
I.AW O""CU
SNELBAKIR.
BRENNEMAN
8c SPARE
as agreed, Defendant suffered a financial loss in paying the
following operating costs:
A. utilities:
(1) Electricity:
(2) Gas:
$746.21
461.93
$1,208.14.
COUNTERCLAIM
Defendant further avers by way of defense (set-off) and as
affirmative claims, the following counterclaim:
62. Defendant hereinabove is the plaintiff or claimant in
this Counterclaim.
63. Plaintiff is the defendant in this Counterclaim.
64. The averments contained in paragraphs 45 through 61 in
New Matter hereinabove are incorporated herein by reference
thereto as though set forth in full herein.
6~. Because of Plaintiff's failure to complete the project
as agreed, thereby breaching the contract, Defendant has suftered
the following damages:
A. Loss of rent per paragraph 60 of New Matter:
$17,508.64.
B. Additional operating costs per paragraph 61 of New
Matter: $1,208.14.
Cost of completing project per paragraphs 46
through 53 of New Matter: $47,643.68.
66. Because of Plaintiff's unlawful inclusion of items in
C.
-16-
1o.A\H o"leu
SN I:LSAI<IA,
e"ENNrMAN
8t SPAR!
its various invoices as avorred in paragraph 57 of New Matter,
Defendant is entitled to credit or set-off against Plaintiff's
alleged total claim of at least $4,850.02. Said amount is
subject to change after completion of pretrial discovery and
Defendant reserves the right to amend this counterclaim after
completion of discovery.
67. Because of Plaintiff's breach of agroement and
unauthorized removal of Defendant's property as averred in
paragraphs 58 and 59 of New Matter, Plaintiff is obligated to
Defendant in the amount of $620.00 as the value of items lost.
68. Because of Plaintiff's breach of its agreement by
failing to perform its obligations in a good and workmanlike
manner as averred in paragraphs 54 through 56 of New Matter,
Plaintiff is obligated to Defendant in the amount of $37,730.
69. The following is a summary of Plaintiff's now known
specific obligations to Defendant as averred above:
A. Loss of rent ('65A):
B. Additional operating costs ('65B):
C. Cost of completion ('65C):
D. Improper inclusions ('66):
E. Loss of property ('67):
F. Cost of repair/restoration because of
deficient workmanship ('68):
$17,508.64
1,208.14
47,643.68
4,850.02
620.00
37.730.00
TOTAL:
$109.560.48
The foregoing amounts are sUbject to change after pre-trial
discovery as mentioned and reserved in paragraphs 57A, 57B, 57C
and 66 hereinabove.
-17-
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portion of that property located at 6481 Carlisle Pike, Meehanicsburg, Cumberland County,
Pennsylvania, (hereillllller referred to as "Property") in exchange for payment in the amount of
Eighty-Nine Thousand Nine Hundred Forty-Six and 00/100 ($89,946,00) Dollars. A copy of
said proposal is attached hereto as Exhibit "A" and incorporated herein by this reference.
4. The telms of the initial proposal generally included the excavation of a basement,
construction of an addition, installation of a 6070 double glass door, water-proofing of a
basement wall, and various minor finishing and repair work, Said proposal did not include floor
coverings, local or state permits, electric or plumbing costs,
5, Upon review of the proposal by Defendant, and discussions between the parties
regarding the nature and extent of the work requested by Defendant, the Plaintiff and Defendant
entered into an oral contract (hereinaller referred to as "Contract") for the performance of
services and the provision of materials by Tam Systems tor various excavation, construction and
remodeling to be undertaken at the Property, which excavation, construction and remodeling
would result in the interior of the property being completed in accordance with the floor plan set
forth on Exhibit "B" which is attached hereto and incorporated herein by reference,
6, The essential terms of the Contract provided that in exchange for labor and
materials provided by Plaintiff, Defendant would remit payment for said services and materials
on the basis of labor and materials used, wherein labor would accrue on an hourly basis.
7, Plaintiff and Defendant further agreed that during the progress of the construction,
Plaintiff would forward invoices to the Defendant on a regular basis for labor and materials used,
Defendant agreed to make payment pursuant to such invoices within fifteen (15) days ofRiCCipt
thereof and be subject to interest at the rate of one and one-half percent (I !iWo) per month for Ill)'
balance which remained unpaid aller the 15 day period following receipt of the invoice.
I
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II, Plaintltl; Tum Systems, Inc,. beglU1 work on said excavation, construction IU1d
remodeling at the Property on October 28, 1996, pursuant to the tenns and conditions agreed
upon by the porites.
9, Defcndant conveyed to Plaintlll'thatthe purpose of said excavation. construction
and remodeling was to facilitate the needs of a prospective lessee to the Property,
10, During the course of construction the DefendlU1t and its prospcctive lessee, orally
requested numerous changes and alterations to the original plans, and said plans underwent
alterations on various occasions, In each instance, Plaintill' kept detailed records of the
additional time and materials spent at request of Defendant in accordance with the numerous
changes and alterations to the original plans set forth in Exhibit "B" aUnched hereto,
II, Subsequent to the original plan us set forth on Exhibit "B" by Plaintiff, and after
numerous oral modifications and requests tor changes to the sume by Defendant, Defendant
presented Plaintiff with a revised 11001' plan. which 11001' plan is auached hereto as Exhibit "C"
and incorporated herem by reference,
12, After Plaintiff began commencing work in accordance with the floor plan set forth
on the attached Exhibit "C", Defendant by and through is President, Willium J, Lumadue, Jr.
instructed Plaintiff to do whatever work was necessary to facilitate the prospective lessee's
occupation of the building at the earliest possible date, and further authorized Plaintiff to
accommodate any and all changes requested by the prosptctive lessee,
13, In addition to authorizing Plaintiff to accommodate all changes requested by the
prospective lessee, Defendant further authorized and agreed that any additional charges relating
to labor and materials used in connection with such changes would be the responsibility of the
Delendant under the swne teons and conditions as the original Contract between the parties,
14, During the course of excavation, construction and remodeling of said Property,
and pursuant to the Icons of the Contract between the parties, Plaintiff li>rwarded to Defendant
monthly progress invoices lor labor and mllterials expended in the course of its work for
Delendant.
15, On or about December 30, 1996, Plaintiff forwarded to Defendant an invoice for
labor and materials in the wnount ofTwenty Thousand Seven Hundred Fifty and 63/100
($20,750,63) Dollars,
16, Subsequently, on or about January 17, 1997, Plaintiff forwarded to Defendant a
second invoice for additional labor and materials ill the wnount of Thirty-Eight Thousand Three
Hundred Fifty-Eight and 27/100 ($38,358,27) Dollars,
17, On or about January 30, 1997, Defendant made one payment in the wnount of
Fifty-Nine Thousand One Hundred Seven and 83/100 ($59,107,83) Dollars toward the then
outstanding balance of Fifty-Nine Thousand One Hundred Eight and 90/100 ($59,108,90)
Dollars,
18, Plaintiff continued its work at the subject property pursuant to the terms of the
Contract between the parties, and further continued to forward to Defendant invoices for all labor
and materials expended at approximately fifteen (15) day intervals.
19, The invoices forwarded to Defendant by Plaintiff reflected all labor and m~eria1s
expended by Plaintiff on the subject property pursuant to the Contract between the parties.
Copies of all invoiccs submittcd for work perlonned by Plaintltl' at the request of Delendant, are
attached hereto as Exhibit "0" and incorporated herein by this reference,
20, Over the course of time between January 30, 1997, and March 27, 1997, Plaintiff'
forward invoices to Defendant having a then outstanding balance in the wnount of Eighty-Nine
Thousand Seven Hundred Eighty and 94/100 ($89,780,94) Dollars lor labor and materials
expended, As of March 27, 1997, approximately $41,479,28 of said outstWlding invoice
wnounts was more than thirty (30) days overdue,
21. Between JWlUary 30,1997, Wld March 27,1997, Plaintiff requested payment from
DefendWlt on numerous occasions, Each time, Defendant failed to remit payment as requested,
22, On or about March 26, 1997, Plaintiff contacted DefendWlt regarding the
outstWlding overdue invoices, Delendant gave no indication that it would be willing and or able
to make payment pursuWltto said invoices,
23, On or about March 27, 1997, due to Defendant's failure to make payment on the
then outstWlding invoices in the wnount of $ 89,780,94, Plaintiff halted all work on the
excavation, construction Wld remodeling in which it was engaged at the subject Property,
24, Between March 27,1997 Wld May 2,1997, Plaintiff forwarded to Defendant
further invoices for additional labor and materials incurred prior to the Plaintiff ceasing work and
operations at the Property, Said invoices were in the cumulative principal wnount ofThirty-Four
Thousand Seven Hundred Forty-Two and 61/100 ($34,742,61) Dollars, A summary ofall
invoices forwarded and payments received as prepared by Plaintiff Tam Systems is attached
hereto a, Exhibit "E" and incorporated herein by this reference,
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TAM SYSTEMS, INC.,
Pllllnllff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. "'1 - s ,;l. ~ 'f CI\o IL TERM
FIGUO MIO VISAGGlO, INC.,
Defendllnt
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE TO DEFEND
You have been sued in court, [fyou wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint, order and
noti,ce are served, by entering a written appearance personally or by attorney and by filing in
writing with the court your defenses or objections to the claims set forth against you, You are
wanted that if you fail to do so the case may proceed without you and ajudgment 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.
0 .r.> 0
Court Administrator ~,.:; ...... 'n
Cumberland County Courthouse "1J I . ~ V) 1
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Cllrlisle, Pennsylvanlll 17013 - :(')
(717) 240.6200 .-('> .'-h
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Americans with Disabilities ;..:! -,
1,- J.'
r\l :IJ
Act of 1990 -<
The Court of Common Pleas of Cumberland County 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 our offir.e. 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,
Pennsylvwtiu, (hereinutler referred to us "I'roperty") in exchlmge flJr puyment in the urnountof
Eighty-Nine ThlJusand Nine Hundred Forty-Six tUtd 00/100 ($89.946,00) Dollurs, A copy of
suid proposul is ulluehed hereto us Exhibit" A" und incorporuted herein by this reference,
4. The terms of the initial proposal generully included the excuvation of II basement,
construction of Wt addition, instullution of u 6070 double gluss door, wuter-prooling of a
basemc.lt wull. and various minor finishing and repuir work, Said proposal did not include 1100r
coverings. local or stute permits. electric or plumbing costs.
5. Upon review of the proposal by Defendant, and discussions between the parties
regarding the nature and extent of the work requested by Defendant, the Plllintiffand Defendant
entercd into an oral contract (hereinafter referred to as "Contract") for the performance of
services and the provision of materials by Turn Systems for various excavation. construction and
remodeling to be undertaken at the Property, which excavation, construction and remodeling
would result in the interior of the property being completed in accordance with the 1100r plan set
forth on Exhibit "B" which is attached hereto and incorporated herein by reference,
6, The essential terms of the Contract provided that in exchange for labor and
materials provided by Plaintiff. Defendant would remit payment for said services and materials
on the basis of labor and materials used, wherein labor would accrue on an hourly basis,
7, Plaintiff and Defendant further agreed that during the progress of the construction,
Plaintiff would forward invoices to the Defendant on a regular basis for labor and materials used,
Defendant agreed to make payment pursuant to such invoices within fifteen (IS) days of receipt
thereof and be subject to interest at the rate of one and one-half percent (1 WVO) per month for any
balance which remained unpaid after the 1 5 day period following receipt of the invoice,
8, PlaintitT. Tum Systems. Ine,. begun work on said excavation, construction and
remodeling atlhe Property on October 28. 1996, pursuant to the terms and conditions ugreed
upon by the parties.
9, Detendant conveyed to Pluintitf thutthe purpose of suid excuvution, construction
unll remodeling wus to tucilitute the needs ofu prospective lessee to the Property,
10, During the course of construction the Defendunt und its prospective lessee, orally
requested numerous chungcs and ulterotions to the originul plans, und said plans underwent
alterations on various occasions. In each instance. PlaintitTkept detailed records of the
additional time and materiuls spent at request of Defendant in accordance with the numerous
changes and alterations to the original plans set torth in Exhibit "B" attached hereto.
II. Subsequent to the original plan as set torth on Exhibit "B" by Plaintiff, and after
numerous oral moditications and requests for chunges to the same by Defendant, Defendant
presented Plaintiff with a revised floor plan, which t100r plan is attached hereto as Exhibit "e"
and incorporated herein by reference,
12, After Plaintiff began commencing work in accordance with the floor plan set forth
on the attached Exhihit"C". Defendant by and through is President, William J, Lamadue, Jr,
instructed Plaintiff to do whatever work was necessary to facilita.te the prospective lessee's
occupation of the building at the earliest possible date, and further authorized Plaintiff to
accommodate any and all changes requested by the prospective lessee,
13, In addition to authorizing Plaintiff to accommodate all changes requested by the
prospective lessee, Defendant further authorized and agreed that any additional charges relating
to labor and materials used in connection with such changes would be the responsibility of the
Defendant under the same terms and conditions us thc original Contruct bctween the parties,
14. During the course of excavation. construction and remodeling of said Property,
and purslIantto thc tenns of the Contract betwc':n the parties. Plaintill'lllrwarded to Delendant
monthly progress invoices Il)r labor and materials expended in the course of its work for
Defendant.
15. On or about December 30, 1996, PlaintilHorwurded to Defendant an invoice for
labor and materials in the amount ofTwenty Thousand Seven Hundred Fifty and 63/100
($20,750,63) Dollars,
16, Subsequently. on or about January 17, 1997, PlaintilT forwarded to Defendant a
second invoice for additional labor and materials in the amount of Thil'ty-Eight Thousand Three
Hundred Fifty-Eight and 27/100 ($38.358,27) Dollars.
17, On or about January 30. 1997, Defendant made one payment in the amount of
Fifty-Nine Thousand One Hundred Seven and 83/100 ($59,107,83) Dollars toward the then
outstanding balance of Fifty-Nine Thousand One Hundred Eight and 90/100 ($59, I 08,90)
Dollars,
18, Plaintiff continued its work at the subject property pursuant to the terms of the
Contract between the parties. and further continued to forward to Defendant invoices for alllllbor
and matcrials expended at approximately fifteen (15) day intervals,
19, The invoices forwarded to Defendant by Plaintiffrel1ccted all labor and materials
expended by Plaintiff on the subject property pursuant to the Contract between the parties,
Copies of all invoices submitted lor work perlormed by Plaintitl' at the request of Detendant, are
attached hcreto as Exhibit "0" and incorporatcd hcrein by this rcference.
20, Over thc coursc of timc between Jonuury 30. 1997, and March 27, 1997, Plaintill'
forward invoiccs to Dclcndant having a then outstunding balance in the amount of Eighty-Nine
Thousand Sevcn Hundred Eighty and 94/100 ($89.780.94) Dollars tor labor and materials
expended, As of March 27, 1997. approximately $41,479,28 of said outstanding invoice
amounts was more than thirty (30) days overduc,
21. Betwcen January 30, 1997. and March 27, 1997, Plaintifl'requested payment from
Defendant on numerous occasions, Each time, Defendant failed to remit payment as requested,
22, On or about March 26. 1997, Plaintitl' contacted Defendant regarding the
outstanding overdue invoices. Defendant gave no indication that it would be willing and or able
to make payment pursuant to said invoices.
23, On or about March 27. 1997. due to Defendant's failure to make payment on the
then outstanding invoices in the amount 01'$ 89.780.94, Plaintill'halted all work on the
excavation, construction and remodeling in which it was engaged at the subject Property,
24. Between March 27,1997 ar.J I\,'l:;j 2,1997, Plaintiff forwarded to Defendant
further invoices for additional labor and materials incurred prior to the Plaintiff ceasing work and
operations at the Property. Said invoices were in the cumulative principal amount of Thirty-Foar
Thousand Seven Hundred Forty-Two and 61/100 ($34,742.61) Dollars, A summary of all
invoices forwarded and payments received as prepared by Plaintiff Tam Systems is attached
hereto as Exhibit "E" and incorporated herein by this reference,
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SYSTEMS INC.
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CUMBERI.AND COlJNTY,PENNSYI.V ANIA
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CIVIl. ACTION - I.A W
NO, 97.5294 (,[VII. Tl'RM
FIOUO MIO VISAOOIO. INC.,
lklendnnl
JURY TRIAl. DEMANDED
[)EFFNIl^NT'~IIFSTU). POINTS FOR C'IIi).J{OE
Delendnnt Figlio Mio Visuggio, Inc, re_luests this Court to ehnrge the jury in this euse on
the following points of law:
I, A contruet is a kgally enllll'ceahle agreement het\\'een two or more competent parties
who have each promised to do, 01' refruin Ihllll doing, some lawful net. Whether oral or written,
a contract is enllll'Cenble if its terms clearly express what each party intended and _lxpccted, If
the terms of the agreement me not dclinite und certuin, uny uncertainty muy be clarified by
examining the circumstances surrounding the harguin, The basic clements thu!. must be present
to form a contract. each of which must be proven by a preponderance of the evidence, arc offer,
acceptance, and consideration,
A. Offer, A valid offer expresses u willingness to enter into a contract. The offer gives
someone else the power to create the contract by muking a valid acceptunce of the offcr and
thereby "sealing the dea!." In determining whether something was intended to be an actual offcr.
it must be examined in context. and it must be examined in light of the surrounding
circumstances, You muy tind thut one party's actions did constitute an offer when you consider
the custom established in a particular trude or husiness, the relation between the parties. and the
prior dealings between the parties,
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the custom established in a particular trade or business, the relation between the parties, and the
prior dealings between the parties,
The offer must create the power to accept, and thereby create a binding contract. Other
statements may be mistaken for an offer, Some of these include:
1. An expression of intent to do something in the future (Le" "I intend to sell my car
for $5,000,00," The speaker is not bound to sell the car if the listener hands him
the money, The speaker did not offer the car for sale,);
2. A request for bids, invitations for others to make offers;
3. An invitation to negotiate, such as "[w]ould you consider selling that?";
4, A statement that a reasonable person would realize was not made in seriousness;
and
5, An "offer" made by an incompetent person is not a valid offer,
B, Acceptance. An acceptance is a clear indication that one agrees to be bound by
the tenns of the offer, The acceptance must be given within the time specified by the offer, or
within a reasonable time if none is specified, The person to whom the offer was directed is the
only person who may accept the offer,
If the parties have had previous dealings whereby certain methods of acceptance have
become customary between them, then such will constitute valid acceptance, An exantple of this
would be a beginning of the requested performance upon receipt of the offer, rather than sending
notice of acceptance of the offer first.
An acceptance must not change the terms of the offer, or impose any additional
conditions, If it does change the ttmlS of the offer it will be considered a counteroffer, nth<<
than an acceptance, and will therefore not create a contract.
2
C, Consideration, There must be consideration given by each party to a valid
contract. That Is, each party must have bargained to exchange his promise for another, The
exchanged promises are either promises to perform or promises not to perform some act. The
value or adequacy of the consideration given will not usually be examined, but the circumstance
which show that both parties were capable of bargaining will be examined, In that sense
competent people are free to contract, and even if one makes a bad deal he is bound by the
agreement.
One's promise to make a gift to another is not enforceable promises since no
consideration was given for that promise and thus no contract was created, There is, however,
consideration where one promises to use [his or her) best efforts, Yet no consideration will be
found upon which to base a contract if one party has promised to do something that he is already
obligated to do, such as repay a preexisting debt.
Granted
Denied
Pa.S.S.J,!. (Civ,) 15,00
2, Except in certain situations, an oral contract is just as effective as if the agreement
had been reduced to writing, If you find that all the items needed to fOl'm a contract are present,
then you must find that a contract existed despite the fact that there was no writing involved. If
you find that an oral contract existed in this case, it is relevant that the party seeking to enforce
3
further puyment wlluld be Illude by Defendunl. Theretllre, Plllintiff ccuscd work on the tllcility
AS a n:sult of Defendulll's fuilurc to pay Illr work ulrcudy pcrllll'lncd, Pluintifl's c1uim is IlJr
recovery of paymcnt due Illr outstanding invoices.
Delcndunt hus tiled a counterdaim Illr items of loss based on various theories,
II, STATEMENT OF BASIC FACTS AS TO DAMAGES
Pluintiff is requesting recovery of all outstanding invokcs for work performed on
Defendant's behalf for which it has not been paid plus interest at the rate of one and one/half
percent (1.5%) per month,
Additionally, Dclcndant claims damagcs III the amount of $109,560.48 in its
counterclaim for various items of damage,
III, STATEMENT or PRINCIPLE ISSUES OF LIABILITY AND DAMAGES
A, liability
With regard to the Plaintiffs daim, the principle issues involve the terms of the
oral contract betwecn the parties, Some of the conflicting issucs were noted in Plaintiffs
Statement of Basic Facts as to Liability as stated above,
With regard to thc Defendant's Countcrclaim, many issues rcgarding the terms of
the oral contract would also be at issue as well as issues regarding the responsibility of
Plaintiff to pay said damages,
B, Damages
With regard to the Plaintiffs claim, Plaintiff will be presenting detailed time and
material invoices which incluoe all work and materials uscd by Plaintiff in restoration of
the building at issue. It is anticipated thaI Defendant will dispute the nature and accuracy
ofthosc billings as well as their responsibility to pay,
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further payment would be made by Defendant. Therelore, Plaintiff' cellsed work on the facility
as a result of Delendant's Iililure to pay for work already perlonned. Plaintiff's claim is tor
recovery of payment due for <lutstanding invoices.
Delendant has tiled a counterclaim lor ilems ofloss based on various theories.
II. STAT~MENT OF BASIC FACTS AS TO DAMAGES
Plaintitl' is requesting recovery of all outslanding invoices for work pertormed on
Detendant's behalf lor which it has not been paid plus interest at the rale of one and onelhalf
percent (1.5%) per month.
Additionally. Defendant claims damages in the amount of $109,560.48 in ils
counterclaim for various items of damage.
III. STATEMENT OF PRINCIPLE ISSUES OF LIABILITY AND DAMAGES
A. LlablUty
With regard 10 the Plaintiffs claim, the principle issues involve the tenns of the
oral contract between the pdrties. Some of the conflicting issues were noted in Plaintiff's
Statement of Basic Facts as to Liability as stated above.
With regard 10 the Defendant's Counterclaim, many issues regarding the terms of
the oral contract would also be at issue as well as issues regarding the resp<lnsibility of
Plainti ff to pay said damages.
B. Damages
With regard 10 the Plaintitl's claim, Plaintiff will be presenting detailed time and
material invoices which include all work and materials used by Plaintiff in restoration of
the building at issue. It is anticipated that Defendant will dispute the nature and aceuracy
of those billings as well as their responsibility to pay.
With respect to Detcndant's Counterclaim, Plaintiff denies any responsibility for
the claimed damages under tenns of the oral contract or under any theory of law which
would allow recovery to Detendant on any of their counterclaims.
IV. ~I,JMMARY OF LEGAL ISSUES
Plaintiff' is not aware of any particular issues which need to be addressed by this
Honorable Court prior to trial.
V. IDENTIFY OF WITNESS TO BE CALLED BY PLAINTIFF
Plaintiff anticipates calling the following persons as witnesses:
a. Marlin (Tom) Fleming
b. William Lamadue
c. Lauren Fleming
d. Rosemary Lamadue
e. Eugene Cook
f. Dr. Paul Hetrick
g. Chris Mascara
h. Len Lobaugh
i. Gary Cook
j. Charles Freeburn
k. Donald Group
I. Harold Stoneberger
m. Reuben Ness
Plainti ff reserves the right to call any witnesses identified by Defendant.
VI. LIST OF EXHIBITS
I. Various tloor plans/drawings of the proposed construction including but not
limited to the following:
a. Design Consultants, Inc., drawing SKI dated 7/10/96;
b. Design Consultants, Inc., drawing SKI dated 7/10/96 revised 8/1/96;
e. Design Consultants, Inc., drawing SKI dated 11!7i96
d. Design Consultants, Inc., drawing A 1 dated 11/7/96 revised 12/23/96;
DEFINITIONS AND INSTRUCT.I.QliS
"You" or "your" as used hercin means the Plaintiff tu whom this Request is directed, its
agents, employees, contractors, attomeys or any person, linn ur entity acting on behalf of or at
the request of said party.
"Plaintift" shall mean and refer to TAM Systems, Inc., and/or its agents, employees,
conlractors, attorneys or any uther person, linn or entity acting on behalf of or at the request of
TAM Systems, Inc.
"Defendant" as used herein means figlio Mio Visaggio, Inc., its agents, employees,
contractors, attorneys or any person, linn or entity acting on behalf of or at the request of figlio
Mio Visaggio, Inc.
"Defendant's Premises" shall mean and refer to the commercial building and real property
upon which it is located commonly identified and known as 6481 Carlisle Pike, Mechanicsburg
(Silver Spring Township) Cumberland County, Pennsylvania.
"Identify" as used herein with respect to persons, means state the name, last known
address, phone number, employer and employment position of the person. When used with
respect to businesses, corporations, associations or entities, "Identify" means stale the full name,
last known address of its principal place of business and phone number of such business,
corporation, association or entity.
When an interrogatory requires you to "describe", to "state the basis or' or to "state all .
facts" on which you rely to support a particular claim, contention or allegation, state in the
answer each and every fact and identify each and every document or communication with
supports, refers to, or evidences such claim, conhmtion or allegation.
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LAW O,.,.tCluS
SNELBAI<I[R,
a,UNNEMAN
& SPARE
.
TAM SYSTEMS, INC.,
Plaintiff
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I NO, 97-5294 CIVIL TERM
vs.
FIGLIO MIO VISAGGIO, INC.,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS TO COMPLAINT
AND NOW, comes Defendant, FIGLIO MIO VISAGGIO, INC., by its
Attorneys, SNELBAKER, BRENNEMAN & SPARE, P.C" and preliminarily
objects to Plaintiff's Complaint pursuant to Pa,R.C.P, 1028 as
follows:
I. LEGAL INSUFFICIENCY (Demurrerl
1. In its prayer for relief in both Counts of its
complaint, Plaintiff seeks "attorney's fees".
2, The Complaint fails to allege or aver any facts or cite
any legal authority to support such "attorney's fees",
3. The Complaint fails to set forth any legally cognizable
basis upon which the relief sought could be granted.
WHEREFORE, Defendant requests your Honorable Court to
dismiss the Complaint pursuant to Pa.R.C.P. 1028(a) (4) for legal
insufficiency and enter judgment on both Counts in favor of
Defendant and against Plaintiff.
II. MOTION TO STRIKE OFF COMPLAINT
4. In its prayer for relief in both Counts of ita
Complaint, Plaintiff seeks "attorney's fees".
5, The Complaint fails to allege or aver any legal baaia
for claiming "attorney's fees",
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by the Defendant to the Plaintlft~ and reflects only a portion of the scope of work which the
Defendant directed Plaintiff to perlorm due to Defendant's numerous subsequent oral
modifications to said drawing, Said oral modilicutions were never incorporated into a revised
architectural drawing of the tloor plan.
48.
The avennents contained in Paragruph Forty-Eight (48) of the New Matter of the
Defendant are admilled.
49.
Admitted in part, denied in part. It is admilled that Plaintiff did commence work at
Defendant's premises on Oct. 28, 1996. All remaining avennents contained in Paragraph Forty-
Nine (49) of the New Matter of Defendanl are specitically denied. By way of further response,
Plaintiffs commencement of work was based solely on the oral agreement between the parties
that all work done by the Plaintiff would be on a labor and materials basis, with no specific
completion date established.
50.
The averments contained in Paragraph Fifty (50) of the New Matter of the Defendant are
specifically denied. On the contrary, there was never a final completion date for the project
agreed upon between the parties, thereby negating the necessity for any type of extension of an
alleged completion date.
51.
The avennents contained in Paragraph Fifty-One (51) of the New Matter of the Defendant
,
are specifically denied. On the contrary, February 18, 1997, did not represent any type of final
completion date which was agreed upon between parties, thereby negating any necessity to
complete said work on or before any specific date. Platiniff agreed to finish its work as soon as
practially possible, given the number of modifications requested by Defendant and Defendant's
representatives, and subject to receipt of requisite materials needed to complete the project,
52.
The averments contained in Paragraph Fifty-Two (52) of the New Matter ofthe
Defendant are admitted.
53.
The averments contained in Paragraph Fifty-Three (53) of the New Matter of the
Defendant are specifically denied to the extent that Defendant avers that the following items
were a part of the parties' Agreement: Installation of a dehumidifier system; sealing of mortar;
carpeting; grading and paving of parking area I driveway. On the contrary, the aforementioned
items were not part of the Agreement between the parties, and therefore never included in the
scope of Plaintiffs work. In addition, after reasonable investigation, Plaintiff is without
knowledge or information sufficient to fonn a belief as to the truth of the remaining avennents
contained in Paragraph Fifty-Three (53) of the New Matter of the Defendant, and therefore the
same is deemed to be denied and proof thereof is demanded at trial.
54.
After reasonable investigation, Plainliff is without knowledge or infonnalion sufficient
to fonn a belief as to the truth of the avennents contained in Paragraph Fifty-Four (54) ofthe
New Maller of the Defendant, and therefore the same is deemed to be denied and proof thereof is
demanded at trial.
55.
Admitted in part, denied in part. The avennents contained in Paragraph Fifty-Five (55) of
the New Matter of the Defendant are admitted to the extent that upon notice from Defendant,
Plaintiff' refused to remedy the alleged leak, as Plaintiff had previously ceased all work and
operations at Defendant's premises due to Delendant's prior material breach of the Agreement
between the parties. In addition, afh:r reIL~onabl~~ investigation, Plaintiff' is without knowledge
or intormation sutlicient to Illnn a belleI' as to the truth of the remaining IlVllnnents contained in
Paragraph Fifty-Five (55) of the New Maller of the Defendant, and therelore the same is deemed
to be denied Wld proof thereof is demanded at trial.
56.
The averments containcd in Paragraph Fifty-Six (56) of the New MaUer of the Defendant
are specilically denied. On thc conlrary, prior to ceasing work octivities at the Defendant's
prcmises due to Dcfendant's matcrial brcach of the Agreement, Plaintitl'did not receive notice of
any time that its work was lcss than satisfactory or performed in a non-workmanlike manner.
Rather, Plaintitl'received numerous indications of approval and satisfaction regarding the work
already pcrtonned by Plaintiff: In addition, after reasonable invesligation, Plaintiff is without
knowledge or infonnation sufficient to form a belief as to the truth of the remaining avennents
contained in Paragraph Fifty-Six (56) of the New Mauer of the Defendant, and therefore the
same is deemed to be denied and proof thereof is demanded at trial.
57.
The Plaintiffs' response to avennents of fact contained in Paragraph Fifty-Seven (57) of
the New Matter of the Defendant are as follows:
A. It is specifically denied that a labor rate 01'$30.00 per hour is unreasonably
high in this market area, and it is further denied that the agreement between the parties
contained any distinction for labor charges as pertaining to trade, skill, experience or
performance. On the contrary, the pa.1ies' agreement was based upon Plaintiff
performing construction and renovation at Defendanl's premises on a labor and materials
basis. In foct, prior 10 Defendant's material brcach of the Agreement by its continued
non-payment, Defendant did willingly and without complaint, make one (I) paymcnt on
January 30,1997, for labor serviccs rendered by Plaintiff in the amount ofTwenty-Eight
Thousand Two Hundred Ninety and 00/100 ($28,290.00) Dollars, representing a charge
tor labor at the rate of Thirty and 00/100 ($30.00) Dollars per hour.
B. It is specitically de"ied that additions to materiols purchased above actual
costs paid to vendors was nota part of the parties' agreement.
C. Admitted in part, denied in part. It is admitted that the tollowing items
were not within the parties' agreement: Finish trowel, joint compound quick mixer shaft,
5" taping knife, 6" taping knite, 6" joint knite, chip brush (I 1/2"), and were charged to be
Defendant in error. It is specifically denied, however, that the tollowing items were not
within the parties' Agreement: Cutsaw blade, replacement blades rasp, C24 wheel with
hub, blades from knife. mileage to pickup forms, tolls to pickup tonns, waste container,
mileage to take back tonns, tolls, James Garling, engineering. In addition, after
reasonable investigation, Plaintiff is without knowledge or information sufficient to fonn
a belief as to the truth of the remaining averments contained in Paragraph Fifty-Seven (C)
(57(C)) of the New Matter of the Defendant, and therefore the same is deemed to be
denied and proof thereof is demanded at trial.
D. It is specifically denied that the three (3) items relating to an interior
sliding glass window in the amount of$786.07, as well as one item relating to door stops
in the amount of $24<;.10 were not within the parties' Agreement. On the contrary. such
items of an interior sliding glass window and door stops were purchased by Plaintiff and
ready for installation at Defendant's premises prior to Defendant's material breach of the
Agreement between the parties.
58.
The averments contained in Paragraph Fifty-Eight (58) of the New Matter of the
Defendant are specifically denied.
59.
To the extent that it is averred by Defendant that PlaintitThad a legal responsibility to
secure items of DefendlU1t. the same is a conclusion of law to which no response is required. In
addition, after reasonable investigation, Plaintiff'is without knowledge or informalion sufficient
to lorm a belief as to the truth of the remaining avennents contained in Paragraph Fifty-Nine (59)
of the New Matter of the Detendant, and therelore the same is deemed to be denied and proof
thereofis demanded at trial.
60.
The averments contained in Paragraph Sixty (60) of the New Matter of the Defendant are
a conclusion of law to which no response is required. In addition, after reasonable investigation,
Plaintiff is without knowledge or infonnation sufficient to form a belief as to the truth of the
remaining averments contained in Paragraph Sixty (60) of the New Maller of the Defendant, and
thel'efore the same is deemed to be denied and proof thereof is demanded at trial.
61.
The averments contained in Paragraph Sixty-One (61) of the New Matter of the
Defendant are a conclusion of law to which no response is required. In addition, after reasonable
investigation, Plaintiff is without knowledge or infonnalion sufficient to fonn a belief as to the
truth of the remaining avennents contained in Paragraph Sixty-One (61) of the New Matter of the
Defendant, and therefore the same is deemed to be denied and proof thereof is demanded at trial.
WHEREFORE, Plaintiff, TAM Systems, Inc., respectfully requests that this Honorable Court
enter judgment in favor of Plaintiff and against Defendant, Figlio Mio Visaggio, Ine., in the amount of
$124,447.32, together with interest at rate of I Y, % per month, court costs and such other relief as this
Court deems fair, just and proper.
COUNTERCLAIM
62.
The averments contained in Paragraph Sixty-Two (62) of the Counterclaim of the
Defendant are admitted.
63.
The averments contained in Paragraph Sixty-Three (63) of the Counterclaim of the
Detendant are admitted.
64.
The averments set forth by Plaintiff in response to New Matter of Defendant are
specifically incorporated herein by reference as though more fuly set forth herein.
65.
The averments contained in Paragraph Sixty-Five (65) of the Counterclaim of the
Defendant relating to allegations that Plaintiff breached the parties' Agreement are conclusions of
law to which no response is required. By way of further response, the Defendant first materially
breached the Agreement between the parties by failing to remit progress payments for work
completed by Plaintiff in the final aggregate amount of$124,447.32, thereby relieving Plaintiff
of any responsibility to continue perfonnance without the benefit of compensation for said
continued performance. In addition, after reasonable investigation, Plaintiff is without knowledge
or infonnation sufficient to fonn a belief as to the truth of the remaining avennents of fact
contained in Paragraph Sixty-Five (65) of the Counterclaim of the Defendant, and therefore the
same is deemed to be denied and proof thereof is demanded at trial.
66.
The averments contained in Paragraph Sixty-Six (66) of the Counterclaim of the
Defendant are specifically denied to the extent that Defendant is entitled to a credit or set-off
against Plaintiff's in the amount 01'$4,850.02, bascd upon Plaintiff's inadvertent inclusion of
certain items in those vurious invoices as averred in Paragraph Fifty-Seven (57) of New Matter of
Defcndant's Answer. It is admitted that Defendant is cntitled to a credit or set-off' against
Plaintitl's total cluim in the amount 01'$76.23, based upon Plaintitl's inadvertent inclusion of
certain items in those various invoices as avcrred in Paragruph Fifty-Seven (57) of New Matter of
Defendant's Answer, as follows: finish trowel -- $31.31; joint compound quick mixer shaft --
$12.73; 5" taping knife.- $9.05; 6" taping knife -- $10.59; 6" joint knife -- $10.06; chip brush (1
1/2") -- $2.49. In addition, aftcr reasonable investigation, Pluintiff is without knowledge or
infonnation sufficient to fonn a belief as to the truth of the remaining avennents contained in
Paragraph Sixty-Six (66) ofthc Counterclaim of the Defendant, and therefore the same is deemed
to be denied and proof Ihereof is demanded at trial.
67.
The avennents contained in Paragraph Sixty-Seven (67) of the Counterclaim of the
Defendant are conclusions of law to which no response is required.
68.
The avennents of fact contained in Paragraph Sixty-Eight (68) of the Counterclaim of the
Defendant are conclusions of law to which no response is required.
69.
The avennents offact contained in Paragraph Sixty-Nine (69) of the Counterclaim of the
Defendant are conclusions of law to which no response is required. In addition, after reasonable
investigation, Plaintiff is without knowledge or information sufficient to fonn a belief as to the
truth of the remaining avennents contained in Paragraph Sixty-Nine (69) of the Counterclaim of
the Defendant, and therefore the same is deemed to be denied and proof thereof is demanded at
trial.
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4. Stat~ lh~ amount of dumuges mvarded to ~ompensllte Ihe plaintiff tllr the UIlJust
enrichment received by the defendant: $
5, Do you Iind that detendant has proved by a fair preponderance of the evidence that the
plaintitl' breached the contract between the purties?
Yes No X
If you answer Question 5 "Yes," proceed 10 Question 6.
If you answer Question 5 "No," you should not answer any further questions and should
return to the courtroom.
6. State the amount of damages awarded to compensate the defendant for the plaintiff's
breach of contract: $
Of the toregoing sum, what, if any, amount do you award on account of un workmanlike
perfonnance: $
Date:~
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