HomeMy WebLinkAbout00-08500
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BOYD E. DILLER, INC.,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 2000- 3'SbO CIVIL TERM
CIVIL ACTION - LAW
THE MCNAUGHTON COMPANY,
Defendant
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 are served,
by entering a written appearance personally or by attorney and filing in writing with a court
your defenses or objections to the claims set forth against you. You are warned that if you fail
to do so the case may proceed without you and a judgment may be entered against you by the
Court without further notice for any money claimed in the Complaint or for any other claim or
relief requested by the Plaintiff. You may lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
SNELBAKER, BRENNEMAN & SPARE, P. C.
BY:~
ttorn ys for aintiff
LAW OFFICES
SNELBAKER,
BRENNEMAN
& SPARE
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Philip H. Spare, Esq.
Snelbaker, Brenneman & Spare, P.c.
44 W. Main Street
Mechanicsburg, P A 17055
(717) 697-8528
ATTORNEYS FOR BOYD E. DILLER, INC.
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Case No. InJ _ Ii' 5" (JO W l-Lv-'
BOYD E. DILLER, INC.
v.
Serve: Any Officer at:
1800 Linglestown Road, Suite 201
Harrisbnrg, Pennsylvania 17110
THE McNAUGHTON COMPANY
COMPLAINT
Plaintiff Boyd E. Diller, Inc., by and thiough its undersigned counsel, brings this action
against The McNaughton Company, and alleges as follows:
I. Plaintiff Boyd E. Diller, Inc. ("Diller"), is a Pennsylvania corporation with its
principal place of business located at 6820 Wertzville Road, Enola, Pennsylvania.
2, Defendant The McNaughton Company ("McNaughton") is a Pennsylvania
corporation with its principal place of business located at 1800 Linglestown Road, Harrisburg,
Pennsylvania.
3. Venue is proper in this Court, in that the contracts which are at issue herein were
formed in Enola, Cumberland County, and defendant McNaughton regularly conducts business
in Cumberland County.
4. McNaughton is in the business of residential real estate development, which does
business under the trade name McNaughton Homes.
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5. Diller is in the business of site preparation, street construction and paving, and the
installation of sewer mains and water mains.
6. For many years Diller has performed services for McNaughton on McNaughton's
various real estate development projects, most frequently on the basis of written proposals
submitted by Diller and accepted by McNaughton. The standard terms of sale agreed to by the
parties has been payment in 30 days, with past due payments bearing interest at 1.5% per month,
7. For many years McNaughton has followed a practice in its relationship with
Diller, when work has been required on a project which was beyond the scope of the contract, of
requesting that "extra" work be performed by Diller on Field Work Orders prepared by Diller.
8. Beginning in 1996, McNaughton purportedly established a policy of issuing
formal written purchase orders prior to extra field work being performed by Diller. In fact,
however, this policy was not often followed, and McNaughton's field supervisors continued to
regularly and freqnently direct Diller's field forces to perform extra work on Field Work Order
tickets, based on the promise that a formal purchase order for such work would follow.
9. Diller performed extra work on Field Work Order tickets on the Canterbury
Estates project, for which McNaughton owes Diller $57,278.24. A copy of a breakdown of the
invoices covered by such work is attached hereto as Exhibit A and incorporated herein by
reference.
10. Diller performed extra work on Field Work Order tickets on the Deer Path Office
Building project, for which McNaughton owes Diller $82,304.40. A copy of the breakdown of
the invoices covered by such work is attached hereto as Exhibit B and incorporated herein by
reference.
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11. Diller performed extra work on Field Work Order tickets on the Deer Path
Woods IV Section 2 project, for which McNaughton owes Diller $20,487.77. A copy ofa
breakdown of the invoices covered by such work is attached hereto as Exhibit C and incorporated
herein by reference,
12, Diller performed work under written Purchase Order on the Deer Path
Woods IV Section 3 project, for which McNaughton owes Diller $2,168. A copy of a
breakdown of the invoice covered by such work is attached hereto as Exhibit D and incorporated
herein by reference,
13. Diller performed extra work on Field Work Order tickets on Good Hope Farms
South project, for which McNaughton owes Diller $13,412.78. A copy of a breakdown of the
invoices covered by such work is attached hereto as Exhibit E and incorporated herein by
reference,
14. Diller performed extra work on Field Work Order tickets on the Greenbriar
Meadows project, for which McNaughton owes Diller $82,775,66. A copy of a breakdown of the
invoices covered by such work is attached hereto as Exhibit F and incorporated herein by
reference,
15. Diller performed extra work on Field Work Order tickets on the Northwood
Crossing project, for which McNaughton owes Diller $35,056.50. A copy of a breakdown of the
invoices covered by such work is attached hereto as Exhibit G and incorporated herein by
reference.
15, McNaughton owes Diller a total principal amount 0[$293,483.35, for which
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Diller has made demand and McNaughton has refused to pay.
16. Pursuant to the terms of the contract between Diller and McNaughton,
McNaughton owes Diller a delinquency charge on past due amounts of 1.5% per month, from the
date of invoice.
WHEREFORE, Diller demands judgement against McNaughton in the amount of
$293.483.35, plus 1.5% per month commencing 30 days from the date of each invoice.
BOYD E. DILLER, INC.
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Snelbaker, Brenneman & Spare, P.C.
44 W. Main Street
Mechanicsburg, P A 17055
(717) 697-8528
ATTORNEY FOR BOYD E. DILLER, INC.
OF COUNSEL
Samuel M Morrison, Jr.
Philip Clark Jones
BRAUDE & MARGULIES, P.C.
888 17th St., N.W., Suite 500
Washington, D.C. 20006
(202) 293-2993
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SNELBAKER.
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VERIFICATION
I, Walter 1. Diller, state that I am Vice President of Boyd E. Diller, Inc., the
Plaintiff herein, that I am authorized to make this affidavit on its behalf and that
the facts set forth in the foregoing Complaint are true upon my personal knowledge,
information and belief.
I understand that my statements are made subject to the 18 Pa. Cons. Stat.
Ann. 9 4904 providing for criminal penalties for unsworn falsification to authorities.
Date: December b , 2000
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2000-08500 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DILLER BOYD E INC
VS
MCNAUGHTON COMPANY THE
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:
MCNAUGHTON COMPANY THE
but was unable to locate Them
in his bailiwick. He therefore
deputized the sheriff of DAUPHIN
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On December 27th, 2000 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing
Out of county
Surcharge
Dep. Dauphin Co
So
18.00
9.00
10.00
,30.50
.00
67.50
12/27/2000
SNELLBAKER,
. Thomas Kllne
Sheriff of Cumberland County
BRENNEMAN & SPARE
Sworn and subscribed to before me
this 3~ day Of~
ikvl A.D.
{)u,L- rJ. ~~~;;n:Jt:i
~... ~ ~...~" ~~
,...
@iiit1~ of tq~ ~4~riff
William T. Tully
Solicitor
Ralph G. McAllister
Chief Deputy
Mary Jane Snyder
Real Estate Deputy
Michael W. Rinehart
Assislanl Chief Deputy
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 255-2660 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
BOYD E DILLER INC
vs
County of Dauphin
THE MCNAUGHTON COMPANY
Sheriff's Return
No.2S19-T - -2000
OTHER COUNTY NO. 2000-S500
.L~..L\lU i\lUW: DeCember 1.5, LUUU a-r. ~::J5.l\M se.rved tIle wii:..:bin
NOTICE & COMPLAINT IN CIVIL ACTION
upon
THE MCNAUGHTON COMPANY
by personally handing
to CLAIRE LYTER, OFFICE MANAGER
o true attested copy (ies)
of the original
NOTICE & COMPLAINT IN CIVIL ACTION
and making known
to him/her the contents thereof at 4400 DEER PATH ROAD
HARRISBURG, PA 17112-0000
~
(
C-.
day of DECEMBER, 2000
(\
! \
l+)~
J1~
Sworn and subscribed to
before me this 19TH
PROTHONOTARY
she~;5;~
By . fI ~
Deputy Sheriff
Sheriff's Costs: $30.50 PD 12/12/2000
RCPT NO 144349
PRYOR
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fuTile Court of Common Pleas of Cumberland County, Pennsylvania
Boyd E. Diller, Inc.
VS.
The McNaughton Company
NO.20-8500 Civil
Now,
12/8/00
, 20 0 () , I, SHERIFF OF CUJ'vlBERLAND COUNTY, P A, do
hereby deputize the Sheriff of Dauphin
County to execute this Writ, this
deputation being made at the request and risk of the Plain.. tiff. .//~
. r~~-t:~"
Sheriff of Cumberland County, P A
Affidavit of Service
Now, .
,20 ,at
o'clock
M. served the
within
upon
at
by handing to
a
copy ofthe original
and made Imown to
the contents thereof.
So answers,
Sheriff of
County, P A
Sworn and subscribed before
me this _ day of ,20_
COSTS
SERVICE
MILEAGE
AFFIDAVIT
$
$
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BOYD E. DILLER, INC.,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY,PENNSYLV ANIA
v.
: NO. 2000-8500-CIVIL TERM
: CIVIL ACTION - LAW
THE MCNAUGHTON COMPANY,
Defendant
NOTICE TO PLEAD
You are hereby notified to plead to the within Answer and New Matter within 20
days of service or a default judgment may be entered against you.
~!L'i$~
Glen R. Grell
Attorney LD. No. 34338
KLETT ROONEY LIEBER & SCHORLING
240 North Third Street, Suite 600
Harrisburg, PA 17101-1503
(717) 231-7705
Attorneys for The McNaughton Company
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BOYD E. DILLER, INC.,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2000-8500-CIVIL TERM
: CIVIL ACTION - LAW
THE MCNAUGHTON COMPANY,
Defendant
ANSWER AND NEW MATTER
NOW COMES the Defendant, THE MCNAUGHTON COMPANY ("McNaughton"),
through its undersigned counsel, and files the following Answer and New Matter.
1. Admitted upon information and belief.
2. Admitted in part. The correct business address of The McNaughton Company is
4400 Deer Path Road, Suite 201, Harrisburg, Dauphin County, PA 17110.
3. Admitted in part. It is admitted that McNaughton regularly conducts business in
Cumberland County. It is denied that the subject contracts were formed in Cumberland County
and proof thereof is demanded, It is further denied that field adjustments, extras or other work
orders which are alleged to have been issued were issued in Cumberland County and proof
thereof, if relevant, is demanded.
4. Admitted.
5. Admitted upon information and belief.
6. Admitted in part. It is admitted that Diller performed various services for
McNaughton, based on written proposals, acceptances, work orders and similar contractual
arrangements. It is denied that each such arrangement contained identical terms and conditions
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and proof of such terms and conditions, if relevant to any allegation, is demanded. It is admitted
that typical payment terms required payment within 30 days; however, said 30 days did not
commence until acceptance ofthe work by McNaughton, It is denied that McNaughton agreed to
pay interest at 1.5% per month, and proof thereof is demanded for each such project.
7. Admitted in part. It is admitted that field work orders were issued by
McNaughton on limited occasions in emergency situations or where a relatively small amount of
extra work was required for a project to proceed. It is denied that such field work orders were an
ordinary course of business. It is further denied that preparation of a field work order by Diller
was all that was required for "extra" work to be authorized by McNaughton and proof thereof is
demanded with respect to each such field work order.
8. Admitted in part. It is admitted that McNaughton put Diller on written notice that
written and signed work orders would be required to confirm authorization for "extra" work and
for payments to be processed. McNaughton also incorporates its answer to Paragraph 7, above.
Proof of the contractual basis for each claimed invoice is demanded.
9. It is denied that McNaughton owes Diller for extra work performed by Diller at
Canterbury Estates and proof of each such invoice is demanded. Despite reasonable
investigation, McNaughton is unable to admit or deny the accuracy of Exhibit "A" because it is a
compilation by Plaintiff Diller of invoices which are not attached to the Complaint. In further
answer, McNaughton believes and therefore avers that certain ofthe work for which Plaintiff
seeks payment alternatively, was either: (1) not authorized to be performed; (2) covered under
the base contract for the project and therefore not an "extra"; (3) not performed in a good and
workmanlike manner; (4) not performed to required specifications; (5) subject to set-off or back
charge; (6) not performed at all by Plaintiff; (7) previously paid for by McNaughton; or (8)
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previously the subject of compromise, payment and settlement between Plaintiff and
McNaughton. See also New Matter averments relating to statute oflimitations affirmative
defenses.
10. It is denied that McNaughton owes Diller for extra work performed by Diller at
Deer Path Woods Office Building and proof of each such invoice is demanded. Despite
reasonable investigation, McNaughton is unable to admit or deny the accuracy of Exhibit "B"
because it is a compilation by Plaintiff Diller of invoices which are not attached to the
Complaint. In further answer, McNaughton believes and therefore avers that certain ofthe work
for which Plaintiff seeks payment alternatively, was either: (1) not authorized to be performed;
(2) covered under the base contract for the project and therefore not an "extra"; (3) not performed
in a good and workmanlike manner; (4) not performed to required specifications; (5) subject to
set-off or back charge; (6) not performed at all by Plaintiff; (7) previously paid for by
McNaughton; or (8) previously the subject of compromise, payment and settlement between
Plaintiff and McNaughton. See also New Matter averments relating to statute of limitations
affirmative defenses.
11. It is denied that McNaughton owes Diller for extra work performed by Diller at
Deer Path Woods, Phase N, Section 2 and proof of each such invoice is demanded. Despite
reasonable investigation, McNaughton is unable to admit or deny the accuracy of Exhibit "c"
because it is a compilation by Plaintiff Diller of invoices which are not attached to the
Complaint. In further answer, McNaughton believes and therefore avers that certain of the work
for which Plaintiff seeks payment alternatively, was either: (1) not authorized to be performed;
(2) covered under the base contract for the project and therefore not an "extra"; (3) not performed
in a good and workmanlike manner; (4) not performed to required specifications; (5) subject to
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set-off or back charge; (6) not performed at all by Plaintiff; (7) previously paid for by
McNaughton; or (8) previously the subject of compromise, payment and settlement between
Plaintiff and McNaughton. See also New Matter averments relating to statute oflimitations
affirmative defenses.
12. It is denied that McNaughton owes Diller for extra work performed by Diller at
Deer Path Woods, Phase N, Section 3 and proof of each such invoice is demanded. Despite
reasonable investigation, McNaughton is unable to admit or deny the accuracy of Exhibit "D"
because it is a compilation by Plaintiff Diller of invoices which are not attached to the
Complaint. In further answer, McNaughton believes and therefore avers that certain of the work
for which Plaintiff seeks payment alternatively, was either: (I) not authorized to be performed;
(2) covered under the base contract for the project and therefore not an "extra"; (3) not performed
in a good and workmanlike manner; (4) not performed to required specifications; (5) subject to
set-off or back charge; (6) not performed at all by Plaintiff; (7) previously paid for by
McNaughton; or (8) previously the subject of compromise, payment and settlement between
Plaintiff and McNaughton. See also New Matter averments relating to statute oflimitations
affirmative defenses.
13. It is denied that McNaughton owes Diller for extra work performed by Diller at
Good Hope Farms South and proof of each such invoice is demanded. Despite reasonable
investigation, McNaughton is unable to admit or deny the accuracy of Exhibit "E" because it is a
compilation by Plaintiff Diller of invoices which are not attached to the Complaint. In further
answer, McNaughton believes and therefore avers that certain of the work for which Plaintiff
seeks payment alternatively, was either: (I) not authorized to be performed; (2) covered under
the base contract for the project and therefore not an "extra"; (3) not performed in a good and
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workmanlike manner; (4) not performed to required specifications; (5) subject to set-off or back
charge; (6) not performed at all by Plaintiff; (7) previously paid for by McNaughton; or (8)
previously the subject of compromise, payment and settlement between Plaintiff and
McNaughton. See also New Matter averments relating to statute of limitations affirmative
defenses.
14. It is denied that McNaughton owes Diller for extra work performed by Diller at
Greenbriar Meadows and proof of each such invoice is demanded. Despite reasonable
investigation, McNaughton is unable to admit or deny the accuracy of Exhibit "P" because it is a
compilation by Plaintiff Diller of invoices which are not attached to the Complaint. In further
answer, MGNaughton believes and therefore avers that certain of the work for which Plaintiff
seeks payment alternatively, was either: (I) not authorized to be performed; (2) covered under
the base contract for the project and therefore not an "extra"; (3) not performed in a good and
workmanlike manner; (4) not performed to required specifications; (5) subject to set-off or back
charge; (6) not performed at all by Plaintiff; (7) previously paid for by McNaughton; or (8)
previously the subject of compromise, payment and settlement between Plaintiff and
McNaughton. See also New Matter averments relating to statute oflimitations affirmative
defenses.
IS. It is denied that McNaughton owes Diller for extra work performed by Diller at
Northwoods Crossing and proof of each such invoice is demanded. Despite reasonable
investigation, McNaughton is unable to admit or deny the accuracy of Exhibit "G" because it is a
compilation by Plaintiff Diller of invoices which are not attached to the Complaint. In further
answer, McNaughton believes and therefore avers that certain of the work for which Plaintiff
seeks payment alternatively, was either: (1) not authorized to be performed; (2) covered under
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the base contract for the project and therefore not an "extra"; (3) not performed in a good and
workmanlike marmer; (4) not performed to required specifications; (5) subject to set-off or back
charge; (6) not performed at all by Plaintiff; (7) previously paid for by McNaughton; or (8)
previously the subject of compromise, payment and settlement between Plaintiff and
McNaughton. See also New Matter.
(sic) This averment states a legal conclusion, to which no responsive pleading is required.
In further answer, it is denied that McNaughton owes Diller the stated sum and proof of each
invoice is demanded.
16. This averment states a legal conclusion to which no responsive pleading is
required. In further answer, it is denied that McNaughton agreed to pay interest on past due
amounts and proof thereof is demanded for each project, contract and invoice upon which
interest is to be charged.
WHEREFORE, McNaughton respectfully requests this Honorable Court to dismiss the
Complaint of Diller or, alternatively, enter judgment in favor of Defendant McNaughton.
NEW MATTER
17. McNaughton affirmatively alleges that Plaintiffs right to maintain its action
under Paragraph 9, relative to Canterbury Estates, is barred by the four-year statute of limitations
found at 42 Pa.C.S.A., Section5525. More than four years have elapsed between the "Date
Billed" of December 11,1995 as to invoice #1491 as set forth in Plaintiffs Exhibit "A" and the
date Plaintiff commenced the present action, December 7, 2000.
18. McNaughton affirmatively alleges that Plaintiffs right to maintain its action
under Paragraph 10, relative to Deer Path Woods Office Building, is barred by the four-year
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statute oflimitations found at 42 Pa.C.S.A-, Section 5525. More than four years have elapsed
between the "Date Billed" as to all invoices set forth in Plaintiffs Exhibit "B" and the date
Plaintiff commenced the present action, December 7, 2000.
19. McNaughton affirmatively alleges that Plaintiffs right to maintain its action
under Paragraph 11 relative to Deer Path Woods, Phase N, Section 2, is barred by the four-year
statute oflimitations found at 42 Pa.C.S.A-, Section 5525. More than four years have elapsed
between the "Date Billed" as to all invoices set forth in Plaintiffs Exhibit "c" and the date
Plaintiff commenced the present action, December 7, 2000.
20. McNaughton affirmatively alleges that Plaintiffs right to maintain its action
under Paragraph 12, relative to Deer Path woods, Phase N, Section 3 is barred by the four-year
statute oflimitations found at 42 Pa.C.S.A-, Section 5525. More than four years have elapsed
between the "Date Billed" as to all invoices set forth in Plaintiff s Exhibit "D" and the date
Plaintiff commenced the present action, December 7, 2000.
21. McNaughton affirmatively alleges that Plaintiff s right to maintain its action
under Paragraph 13, relative to Good Hope Fanns South is barred by the four-year statute of
limitations found at 42 Pa.C.S.A., Section 5525. More than four years have elapsed between the
"Date Billed" as to all invoices set forth in Plaintiff s Exhibit "E" and the date Plaintiff
commenced the present action, December 7,2000.
22. McNaughton affirmatively alleges that Plaintiffs right to maintain its action
under Paragraph 14, relative to Greenbriar Meadows is barred by the four-year statute of
limitations found at 42 Pa.C.S.A., Section 5525. More than four years have elapsed between the
"Date Billed" as to invoices #5355, #1484, #1452, #1462, and #0276 as set forth in Plaintiffs
Exhibit "F" and the date Plaintiff commenced the present action, December 7, 2000.
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23. McNaughton affirmatively alleges that Plaintiffs right to maintain its action
under Paragraph 15, relative to Northwoods Crossing is barred by the four-year statute of
limitations found at 42 Pa.C.S.A., Section 5525. More than four years have elapsed between the
"Date Billed" as to invoice #5501 as set forth in Plaintiffs Exhibit "G" and the date Plaintiff
commenced the present action, December 7,2000.
Respectfully submitted,
KLETT ROONEY LIEBER & SCHORLING
By:
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PAI.D. No. 34338
240 North Third Street, Suite 600
Harrisburg, PA 17101-1503
(717) 231-7705
Attorneys for The McNaughton Company
Date: January 9, 2001
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J~N-03-01 WE~ 03:05 PM
P. 12
VERIFICATION
T, Francis C. McNaughton, Chairman ofthe Board of Directors orThe
M()Natighton Company, make this Verification; I have read the Answer and Now Matter and
state tl1at the facts contained therein are true and eom~ct to the best of my knowledge,
information and hC1i(1r.
I und;:rstand Uwt the statements therein are made subject to the penalties of 18 PIl.
es. S 4~lJ4 relating to unsworn falsification to allthorilies.
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CERTIFICATE OF SERVICE
I hereby certifY that a true and correct copy ofthe foregoing Answer and New Matter was
served by First Class U.S. Mail on the 9th day of January, 2001, upon the following:
Philip H. Spare, Esquire
Snelbaker, Brenneman & Spare, P.C.
44 W. Main Street
Mechanicsburg, PA 17055
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Glen R. Grell
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Philip H. Spare, Esq.
Snelbaker, Brenneman & Spare, P.C.
44 W. Main Street
Mechanicsburg, P A 17055
(717) 697-8528
ATTORNEYS FOR BOYD E. DILLER, INC.
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BOYD E. DILLER, INC.
Case No.: 00-8500 -- Civil Term
v.
THE McNAUGHTON COMPANY
REPLY TO NEW MATTER
Boyd E. DilIler, Inc., through counsel, in reply to the New Matter alleged by The
McNaughton Company, states, with respect to each paragraph of such New Matter, as follows:
17. The allegations of Paragraph 17 are admitted in part and denied in part. It is admitted
that more than four years have elapsed since the "Date Billed" as set forth in Plaintiff s Exhibit
"A" and the date Plaintiff commenced this action on December 7, 2000. It is denied that
Plaintiff s right to maintain this action under Paragraph 9, relative to Canturbury Estates, is
barred by the four-year statute ofIimitations found at 42 Pa. C.SA. S 5525. By way of further
answer, Diller affirmatively asserts as follows: notwithstanding that more than four years have
elapsed between the dates of certain invoices and the date of filing ofthis lawsuit, the statute of
limitations does not bar any portion of this action, in that the application period of limitations
was tolled due to the facts that (a) McNaughton acknowledged on numerous occasions during the
LAW OFFICES
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& SPARE
limitations period the existence of a running account owed by McNaughton to Diller which
included all of the work sued upon, and in fact, McNaughton paid a portion of such running
account during the limitations period notwithstanding that the payment was for invoices more
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than four years old; during the limitations period McNaughton continuously and regularly
promised to Diller to pay the valid portion of the account when the parties could come to
agreement as to certain disputed invoices; and( c) it was not until mid-2000, after repeated
attempts to resolve outstanding issues, that Diller first learned that McNaughton did not have a
good faith intent to resolve outstanding issues and to pay the undisputed portion of the account. It
is further asserted that in light of the foregoing McNaughton is estopped from asserting the
statute of limitations as a defense to this action.
18. The allegations of Paragraph 18 are admitted in part and denied in part. It is admitted
that more than four years have elapsed since the "Date Billed" as set forth in Plaintiff's Exhibit
"B" and the date Plaintiff commenced this action on December 7, 2000. It is denied that
Plaintiff's right to maintain this action under Paragraph 10, relative to Deer Path Woods Office
Building, is barred by the four-year statute oflimitations found at 42 Pa. C.S.A. S 5525. By way
of further answer, Diller affirmatively asserts as follows: notwithstanding that more than four
years have elapsed between the dates of certain invoices and the date of filing of this lawsuit, the
statute of limitations does not bar any portion of this action, in that the applicable period of
limitations was tolled due to the facts that (a) McNaughton acknowledged on numerous
occasions during the limitations period the existence of a running account owed by McNaughton
to Diller which included all of the work sued upon, and in fact, McNaughton paid a portion of
such running account during the limitations period notwithstanding that the payment was for
invoices more than four years old; during the limitations period McNaughton continuously and
regularly promised to Diller to pay the valid portion ofthe account when the parties could come
to agreement as to certain disputed invoices; and (c) it was not until mid-2000, after repeated
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attempts to resolve outstanding issues, that Diller first learned that McNaughton did not have a
good faith intent to resolve outstanding issues and to pay the undisputed portion of the account. It
is further asserted that in light ofthe foregoing McNaughton is estopped from asserting the
statute of limitations as a defense to this action.
19. The allegations of Paragraph 19 are admitted in part and denied in part. It is admitted
that more than four years have elapsed since the "Date Billed" as set forth in Plaintiffs Exhibit
"C" and the date Plaintiff commenced this action on December 7, 2000. It is denied that
Plaintiffs right to maintain this action under Paragraph II relative to Deer Path Woods, Phase
IV, Section 2, is barred by the four-year statute of limitations found at 42 Pa. C.S.A. S 5525. By
way of filrther answer, Diller affirmatively asserts as follows: notwithstanding that more than
four years have elapsed between the dates of certain invoices and the date of filing of this
lawsuit, the statute oflimitations does not bar any portion of this action, in that the applicable
period oflimitations was tolled due to the facts that (a) McNaughton acknowledged on numerous
occasions during the limitations period the existence of a running account owed by McNaughton
to Diller which included all of the work sued upon, and in fact, McNaughton paid a portion of
such running account during the limitations period notwithstanding that the payment was for
invoices more than four years old; during the limitations period McNaughton continuously and
regularly promised to Diller to pay the valid portion ofthe account when the parties could come
to agreement as to certain disputed invoices; and (c) it was not until mid-2000, after repeated
attempts to resolve outstanding issues, that Diller first learned that McNaughton did not have a
good faith intent to resolve outstanding issues and to pay the undisputed portion of the account. It
is further asserted that in light ofthe foregoing McNaughton is estopped from asserting the
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statute of limitations as a defense to this action.
20. The allegations of Paragraph 20 are admitted in part and denied in part. It is admitted
that more than four years have elapsed since the "Date Billed" as set forth in Plaintiff s Exhibit
"D" and the date Plaintiff commenced this action on December 7, 2000. It is denied that
Plaintiffs right to maintain this action under Paragraph 12, relative to Deer Path Woods, Phase
IV, Section 3, is barred by the four-year statute of limitations found at 42 Pa. C.S.A. S 5525. By
way of further answer, Diller affirmatively asserts as follows: notwithstanding that more than
four years have elapsed between the dates of certain invoices and the date of filing of this
lawsuit, the statute of limitations does not bar any portion of this action, in that the applicable
period oflimitations was tolled due to the facts that (a) McNaughton acknowledged on numerous
occasions during the limitations period the existence of a running account owed by McNaughton
to Diller which included all of the work sued upon, and in fact, McNaughton paid a portion of
such running account during the limitations period notwithstanding that the payment was for
invoices more than four years old; during the limitations period McNaughton continuously and
regularly promised to Diller to pay the valid portion ofthe account when the parties could come
to agreement as to certain disputed invoices; and (c) it was not until mid-2000, after repeated
attempts to resolve outstanding issues, that Diller first learned that McNaughton did not have a
good faith intent to resolve outstanding issues and to pay the undisputed portion of the account. It
is further asserted that in light of the foregoing McNaughton is estopped from asserting the
statute of limitations as a defense to this action.
21. The allegations of Paragraph 21 are admitted in part and denied in part. It is admitted
that more than four years have elapsed since the "Date Billed" as set forth in Plaintiff's Exhibit
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"E" and the date Plaintiff commenced this action on December 7, 2000. It is denied that
Plaintiffs right to maintain this action under Paragraph 13, relative to Good Hope Farms South,
is barred by the four-year statute oflimitations found at 42 Pa. C.SA S 5525. By way of further
answer, Diller affirmatively asserts as follows: notwithstanding that more than four years have
elapsed between the dates of certain invoices and the date of filing of this lawsuit, the statute of
limitations does not bar any portion of this action, in that the applicable period oflimitations was
tolled due to the facts that (a) McNaughton acknowledged on numerous occasions during the
limitations period the existence of a running account owed by McNaughton to Diller which
included all of the work sued upon, and in fact, McNaughton paid a portion of such running
account during the limitations period notwithstanding that the payment was for invoices more
than four years old; during the limitations period McNaughton continuously and regularly
promised to Diller to pay the valid portion of the account when the parties could come to
agreement as to certain disputed invoices; and (c) it was not until mid-2000, after repeated
attempts to resolve outstanding issues, that Diller first learned that McNaughton did not have a
good faith intent to resolve outstanding issues and to pay the undisputed portion of the account. It
is further asserted that in light ofthe foregoing McNaughton is estopped from asserting the
statute of limitations as a defense to this action.
22. The allegations of Paragraph 22 are admitted in part and denied in part. It is admitted
that more than four years have elapsed since the "Date Billed" as set forth in Plaintiff s Exhibit
"F" and the date Plaintiff commenced this action on December 7,2000. It is denied that
Plaintiffs right to maintain this action under Paragraph 14, relative to Greenbriar Meadows, is
barred by the four-year statute oflimitations found at 42 Pa. C.S.A. 9 5525. By way of further
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answer, Diller affirmatively asserts as follows: notwithstanding that more than four years have
elapsed between the dates of certain invoices and the date of filing of this lawsuit, the statute of
limitations does not bar any portion of this action, in that the applicable period of limitations was
tolled due to the facts that (a) McNaughton acknowledged on numerous occasions during the
limitations period the existence of a running account owed by McNaughton to Diller which
included all ofthe work sued upon, and in fact, McNaughton paid a portion of such running
account during the limitations period notwithstanding that the payment was for invoices more
than four years old; during the limitations period McNaughton continuously and regularly
promised to Diller to pay the valid portion of the account when the parties could come to
agreement as to certain disputed invoices; and (c) it was not until mid-2000, after repeated
attempts to resolve outstanding issues, that Diller first learned that McNaughton did not have a
good faith intent to resolve outstanding issues and to pay the undisputed portion of the account. It
is further asserted that in light of the foregoing McNaughton is estopped from asserting the
statute of limitations as a defense to this action.
23. The allegations of Paragraph 23 are admitted in part and denied in part. It is admitted
that more than four years have elapsed since the "Date Billed" as set forth in Plaintiff's Exhibit
"G" and the date Plaintiff commenced this action on December 7, 2000. It is denied that
Plaintiff's right to maintain this action under Paragraph 15, relative to Northwoods Crossing, is
barred by the four-year statute oflimitations found at 42 Pa. C.S.A. 9 5525. By way of further
answer, Diller affirmatively asserts as follows: notwithstanding that more than four years have
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elapsed between the dates of certain invoices and the date of filing of this lawsuit, the statute of
limitations does not bar any portion of this action, in that the applicable period of limitations was
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tolled due to the facts that (a) McNaughton acknowledged on numerous occasions during the
limitations period the existence of a running account owed by McNaughton to Diller which
included all of the work sued upon, and in fact, McNaughton paid a portion of such running
account during the limitations period notwithstanding that the payment was for invoices more
than four years old; during the limitations period McNaughton continuously and regularly
promised to Diller to pay the valid portion of the account when the parties could come to
agreement as to certain disputed invoices; and (c) it was not until mid-2000, after repeated
attempts to resolve outstanding issues, that Diller first learned that McNaughton did not have a
good faith intent to resolve outstanding issues and to pay the undisputed portion of the account. It
is further asserted that in light of the foregoing McNaughton is estopped from asserting the
statute of limitations as a defense to this action.
Respectfully submitted,
SNELBAKER, BRENNEMAN & SPARE, P.C.
By:f?JI~
Philip H. Spare, sq.
Snelbaker, Brenneman & Spare, P.C.
44 W. Main Street
Mechanicsburg, PA 17055
(717) 697-8528
ATTORNEYS FOR BOYD E. DILLER, INC.
OF COUNSEL
Samuel M. Morrison, Jr.
Philip Clark Jones
BRAUDE & MARGULIES, P.C.
888 17th St., N.W., Suite 500
Washington, D.C. 20006
(202) 293-2993
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BRENNEMAN
8: SPARE
VERIFICATION
I, Walt Diller, in my capacity as Vice President of Boyd E. Diller, Inc., make this
Verification. I have read the Reply to New Matter and state that the facts contained therein are
true and correct to the best of my knowledge and belief.
I understand that the statements made therein are made subject to the penalties of
18 Pa. C.S. 9 4904 relating to unsworn falsification to authorities.
(jJ.~&~
Walt Diller
Dated: /-29-0/
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CERTIFICATE OF SERVICE
I, PHILIP H. SPARE, ESQUIRE, hereby certify that I have, on the below date,
caused a true and correct copy ofthe foregoing Reply to New Matter to be served upon the
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persons and in the manner indicated below:
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FIRST CLASS MAIL. POSTAGE PREPAID, ADDRESSED AS FOLLOWS:
Glen R. Grell, Esquire
Klett, Rooney, Lieber & Schorling
240 North Third Street
Harrisburg, PA 17101-1503
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Snelbaker, Brenneman & Spare, P.C.
44 W. Main Street
P.O. Box 318
Mechanicsburg, P A 17055
(717) 697-8528
Attorneys for Plaintiff
Date: January 29,2001
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COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BOYD E. DILLER, INC.
Case No. 2000-8500
v.
THE McNAUGHTON COMPANY
ORDER GRANTING LEAVE OF
OUT-OF-STATE COUNSEL TO APPEAR PRO HAC VICE
AND NOW, this --2zl- day of ~AMM/\ ,2001, upon consideration of
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the unopposed Motion of Plaintiff Boyd E. Diller, Inc., for the admission of Samuel M.
Morrison, Jr. and Philip C. Jones, of the firm Braude & Margulies, P.C., Washington, D.C., for
leave to appear on behalf of Plaintiff Diller in this case pro hac vice, the Court finds granting the
Motion is in the interests of justice, and therefore:
IT IS HEREBY ORDERED that the Motion is granted, and Samuel M. Morrison, Jr. and
Copes to:
Philip C. Jones are granted leave to appear in this case as co-
Philip H. Spare, Esq.
Glen R. Grell, Esq.
Samuel M. Morrison, Jr., Esq.
Philip C. Jones, Esq.
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Philip H. Spare, Esq.
Snelbaker, Brenneman & Spare, P.C,
44 W. Main Street
Mechanicsburg, P A 17055
(717) 697-8528
ATTORNEYS FOR BOYD E. DILLER, INC.
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BOYD E. DILLER, INC.
Case No. 2000-8500
v.
THE McNAUGHTON COMPANY
MOTION FOR LEAVE OF OUT-OF-STATE
COUNSEL TO APPEAR PRO HAC VICE
Plaintiff Boyd E. Diller, Inc., through counsel, hereby moves the Court to grant leave for
Samuel M, Morrison, Jr. and Philip C. Jones ofthe Washington, D.C. firm Braude & Margulies,
P.C., to appear as co-counsel, pro hac vice. In support ofthis Motion counsel states as follows:
This is a collection action involving a series of unpaid invoices arising out of a number of
different construction projects. The plaintiff in this action, Boyd E. Diller, Inc., was previously
represented by Braude & Margulies, P.C. in connection with a construction-related arbitration,
and Diller desires to have the firm act as co-counsel on this matter.
Samuel M. Morrison, Jr., has been a member in good standing of the bar of the District of
Columbia since 1988. Philip C. Jones has been a member in good standing of the bar of the
District of Columbia since 1974. Both Mr. Morrison and Mr. Jones were admitted pro hac vice in
Pennsylvania for one prior case, in York County in 1999.
LAW OFFICES
SNELBAKER,
BRENNEMAN
& SPARE
Counsel for defendant, Glen R. Grell, has advised that he does not oppose this Motion.
A proposed Order is attached.
LAW OFFICE:S
SNEl.BAKER,
BRENNEMAN
& SPARE
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Date: January 29. 2001
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Respectfully submitted,
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Snelbaker, Brenneman & Spare, P.C.
44 W. Main Street
Mechanicsburg, P A 17055
(717) 697-8528
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ATTORNEY FOR BOYD E. DILLER, INC.
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CERTIFICATE OF SERVICE
I, PHILIP H. SPARE, ESQUIRE, hereby certify that I have, on the below date,
caused a true and correct copy of the foregoing Motion to be served upon the persons and in
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the manner indicated below:
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FIRST CLASS MAIL POSTAGE PREPAID, ADDRESSED AS FOLLOWS:
Glen R. Grell, Esquire
Klett, Rooney Lieber & Schorling
240 North Third Street
Harrisburg, PA 17101-1503
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Samuel M. Morrison, Jr. Esquire
Philip C. Jones, Esquire
Braude & Marguiles, P.C.
888 17th Street, N.W., Suite 500
Washington, D.C. 2006
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Snelbaker, Brenneman & Spare, P.C.
44 W, Main Street
P.O. Box 318
Mechanicsburg, P A 17055
(717) 697-8528
Attorneys for Plaintiff,
Boyd E. Diller, Inc.
Date: January 29,2001
LAW OFFICES
SNELBAKER,
BRENNEMAN
& SPARE
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COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BOYD E. DILLER, INC.
Case No. 2000-8500 Civil Term
v,
THE McNAUGHTON COMPANY
STIPULATION AND ORDER OF DISMISSAL
Plaintiff Boyd E. Diller, Inc., and Defendant The McNaughton Company, by and
through their respective counsel, hereby stipulate that this action may be dismissed with
s in dispute between them having been settled..
Ph IP C. Jones
BRAUDE & MARGULIES, P.C.
888 lih Street, N.W., Suite 500
Washington, D.C. 20006
(202) 293-2993
Attorney for Plaintiff Boyd E. Diller, Inc.
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Glen R. ell
KLETT, ROONEY, LIEBER & SCHORLING
240 N. Third Street, Suite 600
Harrisburg, PA 17101
(717) 231-7700
Attorney for Defendant The McNaughton Company
'so ORDERED, CASE DISMISSED this Itb day of ~
,2001.
Copies to Counsel
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