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HomeMy WebLinkAbout01-1152 FX ~- ~. ~'" BOYD E. DILLER, INC, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs, : No, 0/- //.5',,) CIVIL TERM THOMAS W. GAUGHEN, CIVIL ACTION - LAW 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 LA WYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 LAW OFFICES SNELBAKER, BRENNEMAN & SPARE SNELBAKER, BRENNEMAN & SPARE, P,C. By ~~i" 44 West Main Street P,O. Box 318 Mechanicsburg, P A 17055-0318 (717) 697-8528 Attorneys for Plaintiff, Boyd E. Diller, Inc. ,.0' ~: II" ~ ;"" 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, PENNSYL VANIA Case No. O/~ JJ5.l d::J -r~ BOYD E. DILLER, INC. v. Serve at: 140 Bryce Road Camp Hill, P A 17011 THOMAS W. GAUGHEN COMPLAINT Plaintiff Boyd E. Diller, Inc., by and through its undersigned counsel, demanding trial by jury, brings this action against Thomas W. Gaughen, and alleges as follows: 1. Plaintiff Boyd E. Diller, Inc. ("Diller"), is a Pennsylvania corporation with its principal place ofbusiness located at 6820 Wertzville Road, Enola, Pennsylvania. Diller is engaged in business as an excavation, land clearing, site preparation and paving contractor. 2. Defendant Thomas W, Gaughen is an individual resident of Camp Hill, Pennsylvania, Pennsylvania, who is engaged in residential and commercial real estate development, who operates under the trade names "Tom Gaughen Real Estate" and "TWG Real Estate Management Services." 3. Venue is proper in this Court, in that the contracts which are at issue herein were formed in Enola, Cumberland County, and defendant Gaughen regularly conducts business in Cumberland County. ,.", ~ ~~,- , " ~:il~i, 4. By written agreement dated March 5, 1997, a copy of which is attached as Exhibit A, Gaughen entered into a contract with Diller pursuant to which Diller agreed to perform storm sewer, sediment basin and drainage swale installation for The Brambles of Hamden, Mechanicsburg, Pennsylvania ("the Project") for a fixed price of $48,705. 5. By additional written agreement dated March 6, 1997, a copy of which is attached as Exhibit B, Gaughen entered into a contract with Diller pursuant to which Diller agreed to perform Erosion Control Measures, Site Grading, Sanitary Sewer Installation, Storm Sewer Installation, and Base Bid Paving for The Brambles of Ham den for a fixed price of $826,433.34. 6, During the course of the work on the Project Gaughen directed Diller to perform certain extra work, which increased the value of the contracts to $1,081,236,21. 7, With the exception of repair oflow spots in two parking areas which will be corrected as soon as weather permits, Diller performed all of the work included in its scope of the work for the Project in a timely and workmanlike manner, and Diller is entitled to full payment ofthe value of the contracts, less $10,000 retainage agreed to by Diller for such corrective work. 8. Gaughen has paid Diller for its work on the Project $877,867.31, and after deducting $10,000 retainage, Gaughen currently owes Diller a balance of$197,625,90. A copy ofthe current statement of account is attached hereto as Exhibit C. 9. The contract between the parties provides that Gaughen will pay Diller interest on outstanding and unpaid balances at the rate of 1.5% per month. 10. Payments have been in arrears since November 30, 1998, and full payment was due from Gaughen to Diller on November 30, 2000_ Interest is accruing at the per diem rate of $97.46. 2 ."" ~ "~ '" -- l _ ~_. " ,.. WHEREFORE Diller demands judgment against Gaughen in the principal amount of $197,625.90, plus interest from and after each payment was due at the rate of 1.5% per month, BOYD E. DILLER, INC. ~~ Snelbaker, Brenneman & Spare, p.e 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 & MARGULffiS, P.C. 888 17th St., N.W., Suite 500 Washington, D.C. 20006 (202) 293-2993 3 d' ,~~ -- , . ~. , - . l__ , :"""J,:" . ~. &, ZJatu, 1~, · EXCAVATING AND PAVING CONTRACTOR. · MUNICIPAL WASTE TRANSFER STATION. Serving the Central PA Area Since 1940 . Site Preparation . Street Construction I Paving . Sewer Mains . Water Mains . Storm Drainage . Equipment Rental MARCH 5, 1997 HAMPDEN TOWNSHIP AUTHORITY C/O TWG REAL ESTATE MANAGEMENT SERVICES P.O. BOX 686 CAMP HILL, PA 17001-0686 RE: THE BRAMBLES OF HAMPDEN SITE DEVELOPMENT . You can dispose of your: . Demolition Material . Tree Limbs & Stumps . Old Furniture . Old Appliances . Household Refuse PER YOUR REQUEST, WE SUBMIT CONSTRUCTION COSTS FOR THE FOLLOWING ITEMS OF WORK TO BE PERFORMED ON THE ABOVE MENTIONED PROJECT. STORM SEWER INSTALLATION SEDIMENT BASIN INSTALLATION DRAINAGE SW ALE INSTALLATION TOTAL $48,705.00 TWG REAL ESTATE MANAGEMENT SERVICES $28,175.00 $19,030.00 $ 1,500.00 BOYD E. DILLER, INC, (J:kJ0I(;JL DATE 3-S-9) ,'J .' ~. &, 7)~, 'J~, · EXCAVATING AND PAVING CONTRACTOR. . MUNICIPAL WASTE TRANSFER STATION. , SeNing the Central PA Area Since 1940 . Site Prl;l'paration . Street Construction/Paving . Sewer Mains . Water Mains . Storm Drainage . Equipment Rental MARCH 6, 1997 TWG REAL ESTATE MANAGEMENT SERVICES P.O, BOX 686 CAMP HILL, PA 17001-0686 PROPOSAL RE: THE BRAMBLES OF HAMPDEN SITE DEVELOPMENT H__ "~~ij You can dispose of your: . Demolition Material . Tree limbs & Stumps . Old Furniture . Old Appliances . Household Refuse PER YOUR REQUEST, WE ARE PLEASED TO QUOTE 1HE FOLLOWING ITEMS OF WORK TO BE PERFORMED ON TIlE ABOVE MENTIONED PROJECT, EROSION CONTROL MEASURES STABILIZED STONE CONSTR. ENTRANCE 18" SILT FENCE INSTALLATION TEMPORARY INLET PROTECTION POND OUTLET STRUCTURE DlVERSION SW ALE NO. #1 $ 4.00 $ 1.80 $ 60.00 $ 4.00 133 SY 2300 Ff 7.0 EA LUMP SUM 740 FT ESTIMATED AMOUNT EROSION CONTROL MEASURES $ 532.00 $4140.00 $ 420.00 $ 2000.00 $ 2960.00 $10,052.00 ~,j "". 'J,,'-,<- THE BRAMBLES OF HAMPDEN MARCH 6, 1997 PAGE 2 SITE GRADING 6" TOPSOIL REMOVAL (STOCKPILE ON SITE) BULK GRADING CUT FILL 6" TOPSOIL REPLACEMENT (EXCESS TOP SOIL TO REMAIN ON SITE) TEMPORARY SEED & MULCH (pOND AREA ONLY) SITE CLEARING AND GRUBBING JOB MOBILIZATION COMPACTION TESTING 19,100 CY 106,530 CY 106,530 CY 10,800 CY 1.57 AC 4.0 AC LUMP SUM LUMP SUM $ 1.10 $ 1.50 $ .50 $ 3.00 $1200.00 $2700.00 ESTIMATED AMOUNT SITE GRADING SANITARY SEWER INSTALLATION 8" PVC SDR-35 W/BEDDING 6'-8' DEPTH 8" PVC SDR-35 W/BEDDING 8'10' DEPTH 8" PVC SDR-35 W/BEDDING 10'-12' DEPTH 6" PVC LATERALS W/BEDDING 6" PVC CLEAN OUTS 6" X 8" WYE BRANCH 4 PT STANDARD PRECAST MANHOLE 24" STANDARD MANHOLE FRAME & COVER CONCRETE ENCASEMENT TIE INTO EXISTING MANHOLE 1,795 LF 1,223 LF 768 LF 880 LF 28 EA 28 EA 198.90 VF 23.0 EA 70.0 LF 1.0 EA $ 14.20 $ 14.80 $ 15.50 $ 13.90 $ 150.00 $ 60.00 $ 130.00 $ 250.00 $ 45.00 $ 550.00 ESTIMATED AMOUNT SANITARY SEWER ~ {. - - "~,~ $ 21,010.00 $159,795.00 $ 53,265.00 $ 32,400.00 $ 1,884.00 $ 10,800.00 $ 2,500.00 $ 5,000.00 $286,654.00 $ 25,489.00 $ 18,100.40 $ 11,904.00 $ 12,232.00 $ 4,200.00 $ 1,680.00 $ 25,857.00 $ 5,750.00 $ 3,150.00 $ 550.00 $108,912.40 "'.--~,- -'-- [,1 THE BRAMBLES OF HAMPDEN MARCH 6, 1997 PAGE 3 STORM SEWER INSTALLATION 24" C.M.P. 16 GA. 36" C.M.P. 16 GA 36" METAL END SECTION R-4 RIP RAP ENERGYDISSIPATOR 4 FT STANDARD STORM MANHOLE TYPE C PRECAST INLETS TYPE M PRECAST INLETS 140 LF 860 LF 1.0 EA 20 TON 1.0 EA 2.0 EA 5.0 EA ESTIMATED AMOUNT STORM SEWER c' 'I. _ ~ , "< $ 17 .00 $ 22.00 $ 425.00 $ 20.00 $ 950.00 $ 750.00 $ 720.00 . ~ --.' ". '~"-"""i>W' $ 2,380.00 $ 18,920.00 $ 425.00 $ 400,00 $ 950.00 $ 1.500.00 $ 3.600.00 $28,175.00 u - ,."~ ,. ~.~. ~~ ~ ~--~ ~ : THE BRAMBLES OF HAMPDEN MARCH 6, 1997 PAGE 4 PAVEMENT INSTALLATION BASE BID PAVING 8" 2A MODIFIED STONE BASE 3" ID-2 BINDER COURSE 1" ID-2 WEARING COURSE 31,311 SY 31,311 SY 31,311 SY $ 4.87 $ 5.28 $ 2.39 ESTIMATED AMOUNT BASE BID PAVING I" _,' _,'__ "on_ _,_ TOTAL AMOUNT THIS PROPOSAL (BASE BID) $826,433.34 PROVISIONS .-' ~ '~,-k,\ $152,484.57 $165,322.08 $ 74.833.29 $392,639.94 ALL PERMITS, TESTING, BONDING, AND INSPECTION FEES WILL BE THE RESONSIBILITY OF THE OWNER. ALL LAYOUT, GRADES AND ENGINEERING WILL BE THE RESPONSIBILITY OF THE OWNER. GRADING PRICES QUOTED ARE BASED ON BALANCING GRADES ON SITE. PAVING PRICES QUOTED ARE GOOD THROUGH 1997 ONLY. ANY CHANGES IN MATERIAL PRICES AFTER 1997 WILL BE ADJUSTED IN OUR UNIT PRICES QUOTED. PRICES QUOTED ARE BASED ON QUANTITIES AS INDICATED TAKEN FROM DRAWINGS PREPARED BY HARTMAN AND ASSOCIATES, INC. SHEETS 1 THRU 13 DATED 12/15/95 3/3/96, 4/1/96 AND 11/25/96. ALSO: DRAWINGS ,FROM TWG REAL ESTATE MANAGEMENT SERVICES DATED 11/10/95, 1017196 AND 10/5/96. UNSTABLE OR UNSUITABLE CONDITIONS ENCOUNTERED AT EXISTING GRADES, AT OR BELOW SUBGRADE ELEVATIONS WILL BE CORRECTED ON A TIME AND MATERIAL BASIS IN ADDmON TO THE AMOUNTS QUOTED. PRICES QUOTED DO NOT INCLUDE REMOVAL OR RELOCATION OF EXISTING UTILITIES ABOVE OR BELOW GROUND. PRICES QUOTED DO NOT INCLUDE SEEDING, MULCHING, MATTING, OR LANDSCAPING. PRICES QUOTED DO NOT INCLUDE STONE BACKFILL, IF REQUIRED STONE BACKFILL WILL BE INSTALLED AT $10.50 PER TON IN ADDITION TO THE AMOUNTS QUOTED. PRICES QUOTED DO NOT INCLUDE REMOVAL OF EXCESS MATERIALS OFF SITE. PRICES QUOTED DO NOT INCLUDE ROCK REMOVAL, ROCK IF ENCOUNTERED WILL BE REMOVED AT THE FOLLOWING UNIT PRICES, IN ADDmON TO THE AMOUNTS QUOTED: BULK ROCK BLASTING $25.00 CY RIPPER ROCK TRENCH ROCK BLASTING $45.00 CY HOE RAM \ $20.00 CY $200.00 CY -' I ~ .' -.,1 -, , '~',- i!:~;~ . ' THE BRAMBLES OF HAMPDEN MARCH 6, 1997 PAGE 5 TRENCH ROCK MEASUREMENT WILL BE DIAMETER OF PIPE PLUS 1 FT. EACH SIDE PLUS LENGTH AND DEPTH. PRICES QUOTED DO NOT INCLUDE FLUSHING OF SEWER OR WATERLINES. THIS CONTRACT ENTERED INTO THIS DATE BETWEEN THE PARTIES SET FORTH ABOVE SHALL CONSTITUTE THE ENTIRE AGREEMENT COVERING THE WORK TO BE DONE AND THE PRICE QUOTED; EXCEPT, IF IT IS (A) IF A JOB DURATION IS LESS THAN 30 DAYS, PAYMENT SHALL BE MADE IN FULL, 10 DAYS AFTER RECEIVING FINAL BILL FOR COMPLETION OF CONTRACT. OB) IF JOB DURATION IS OVER 30 DAYS, BILLING S FOR WORK COMPLETED WILL BE ISSUED ON THE 10TH & 25TH OF EACH MONTH; BILLING ISSUED ON THE 10TH OF THE MONTH WILL BE DUE FOR PAYMENT ON THE 25TH NEXT FOLLOWING; BILLING ISSUED ON THE 25TH OF THE MONTH WILL BE DUE FOR PAYMENT ON THE 10TH NEXT FOLLOWING; ANY OVERDUE BILLINGS WILL BE SUBJECT TO A DELINQUENT CHARGE OF 1 1/2% PER MONTH. TWG REAL ESTATE MANAGEMENT SERVICES BOYD E. DILLER, INC. " /' DATE (JZ;d4;v~ DATE _7- r.;: - 77 - -~.~~.~~~ - , - l~A Received: 2/20/2001 6:31PM; ->Braude&Margu~ies;PC; #961; page 7 BOYD DILLER INC ENOLA PA it 717 766 8690 02/19/01 . . 19:18 ISl :07/08 NO:894 . . ll-IU DATE: '2-28-.1 BOYIl E. DILI.ER, IIC. AIR JOI ABIIll , RETEITlOJI PAIlE I 12-21"2881 17:24 ....57 TIIllUS .. GAII6IIEII .UL ES'l' P. O. BOX 686 2133 .AINET STREIT CAIIP HILL, PA 1'1181 1717 I 763-96Ie DATE or UST PItT: 1I'7-13-2IlII 1IllTE. Only lllCl1ldltl A_tal tbnll 12-31-9999 Inclwlu III Bal_ JOR' JOI NAIl APPLYI DATE DRIB AI' RETENTIIJI lIT PAlO BAlAlCE CUIIElIT om 311 OYER 61 OYER 91 OVEI 12ll ...__. _______w_. _.__._ ________ __.__.__._ ____~_____ __________ ..._______ __________ __________ __________ ._________ __.______. *2 RISt. JOBS P\Il1W .. SllPllh .. I 7422 7422 89.eli... 271. II 27.... 278. II -_________ .--------- ____a_a_a. ____._____ __________ ._________ __.__w____ .________. ____w_____ SUB'IVT&L: 21.... ,. ... 27.... ... .. .. ... 211. . '''I BRAIBLES OF HWDBII SUPER: mAS . IlAIIlHIIl REAL EST PO IX 686 CAlP HILL ,. '''I'' JI 7625 1625 12-28-'1 -564." -11635.98 11871.98 Ulll.98 7"1. JR 1416 7416 11-31-" 14811.2~ 288.13 13721.26 13'T.ll.26 788188 J. '429 7G9 87-31-" 9739.1' 194.78 9544.32 ~544.32 '''I'' J. 7384 1384 16-31-" 24193.12 483.87 7"188 P 57732 7384 87-13.... -18553.14 51:16.41 5156.41 1881.. I 7198 m8 12-31-~ 695." 7.1.. P 21726 7198 12-11-88 -695." '1181" I 7118 7178 12-18-~ 292." 7..188 P 211694 7178 81-13-88 -292.88 '''188 JR 7177 7177 12-16-~ 187847.68 2141.95 184..65 184916. 65 '118188 JR 6927 6921 15'31.~ :mar.." '2r.r.24.37 !lll211.45 51218.45 7..1.JJI 6758 675811-31-98 16751.56 837.53 7111.. P 14911 6758 11-21-~ -5212.14 '..1. P 1491. 6158 '1'25-~ -1"11.89 7.1. JR 6681 6681 11-31-98 '2744.83 2744.83 2744.83 7.188 JR 6619 6619 119-29-98 112262.12 5613.12 7881. P 14561 6619 11-21-98 -9I368.ll'.I 7881.. P 14562 6619 11-21-98 -16288.11 7.181 P 14562 6619 1'-21-98 7811.. I 654~ 6549 87-17-98 311I, II 788188 P 19131 6549 87-28-98 ..... . 7811" P 19138 6:149 "-28-98 27118.88 788188 JI 6519 6519 16-31-98 98534." 7271.42 118188 P 14182 6519 87-17-98 -...... .. 181181 P 14183 651987-17-98 '35262.58 718118 JR 6462 6462 84-38-98 mll9.17 2555. 4~ 7.188 P 13945 6462 85-18-98 -48554.28 1881. JR 63lI8 631112-31-.91 2984.34 -31339.28 7.1" P 13464 63lI8 12-23-98 -34243.54 ,..1. JR &27. &27111-31-91 89285.53 8928.55 7.181 P 13316 6278 12-12-97 -88356.98 188181 JI 6227 6'1Z1 1'-31-91 127.37.4. 12783.74 ,..188 P 13197 6227 11-14-97 -55458.13 788181 P 13198 6227 11-14-91 -58874. 93 7.111 JI 61~1 6191 19-31-91 141l19. .. 1481.98 781181 P 13835 6191 18-17-97 -12688.11 788181 JI 6131 6131 119-13-91 .1146. .. 41UU8 788188 P 1~192 613189-13-91 -36131.. 788188 JR 6881 Ii881 "'3lI-~7 78457." 7145.7' .'-"-- ," .,- . .~ ,. , ,~ ,-.. ''''"" -_ .~_'.". _k\) RE:'ceived: 2/20/2001 6:31PM;, ->Braude&Margulies;PC; #961; Page 8 ~OYD ~ILLER INC ENOLA PA if 717 766 8690 02/19/01 19:18 B :08/08 NO:894 AR-Ill DATE, '2-2'-*1 eeee57 TBllIlAS V. flAlI&REI IIW.IST P. 0. BIll 686 2133 "'lIKET STREIT CAlP BllJ" PA 1711I1 BOYD E. DILLER, lie. All JOB AGIIIG l RmlITlOI PAIlE 2 112-21-*1 17,24 11111763-9611I DAn OF LAST PIIT' 11-13-_ IOTEI OIIly Includetl A_t. thru. 12-31-9999 Includ.. All 8118_ JOB' JOB BAlE APPLY' DATIl ORIG AIT RETEIITIOlI A"T PAID "LAICE CURRERT OVER 38 OVtll 6e OYER,. OYEII 121 ~___._ .__w_..___ _...._ .____~__ __._...___ _________w ____..~___ ..w_______ ~_________ _______~__ ___.______ __________ __________ '..188 P 12693 6811 18-116-97 -63411.30 '''I..m 6148 6N8 17-11-91 92139. .. 9213.911 7"1" , 12551 6N8 17-1:1-97 -83465.18 7..1..JK Gall IiIl1 15- 29-97 161985." 16198. !ill 7..118 P 12433 liItl 16-12-97 -144886.541 '..1. JI 59lI8 _ 84-29-97 . 35813." 3511.311 '..1.. , 18997 .. 15-11-97 -31511.7' __________ --.-~----- ---------- -.________ ---_______ ._..______ ________w_ _..~__.._. _~________ llII8'llrtA1.1 1185223.21 1"".88 -8'11867.31 197355.911 11111.98 .. ... 13721.26 17~.66 __________ ------___~ _..__._... ....______ _w._______ AM._______ ________._ ___A______ ________._ mALSI 11185493.21 1....... -877861.31 197625.98 11111.98 ... ... 13721.26 112832.66 --_._----~ ---------- -....-.--- -._----~-- .-..-..--. ---------- .-....--.. .--------. --_.~-~_.- llIl'OIIT TOTAL: 1885493.21 1....... -877861.31197625.98 11011,98 .11 ... 13721.26 172832.66 LAW OFFJCES SNELBAKER, BRENNEMAN & SPARE k;: CORPORATE 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 Pac Cons, Stat. Ann, !l 4904 providing for criminal penalties for unsworn falsification to authorities. ~L1/~ Walter 1. DIller Date: February').?,2001 ; I ~l . '~",~ '. IL, SHERIFF'S RETURN - REGULAR CASE NO: 2001-01152 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DILLER BOYD E INC VS GAUGHEN THOMAS W SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon GAUGHEN THOMAS W the DEFENDANT , at 0014:50 HOURS, on the 9th day of March , 2001 at 2133 MARKET ST 2ND FLOOR CAMP HILL, PA 17011 by handing to THOMAS GAUGHEN a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 9.30 .00 10.00 .00 37.30 So Answers: ~~ -t:~~ R. Thomas Kline Sworn and Subscribed to before By: '\ 03/12/2001 BRAUDE & MARG me this /'1 ~ day of nu,,,t.. .:uo I A.D. q,'J}<- () }y"lh.<./ # rothonotary/ , ."~"" . ~=:... -"~'~'\;'( , . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BOYD E. DILLER, INC., Plaintiff, v. No. 01-1152 CIVIL TERM CIVIL ACTION - LAW THOMAS W. GAUGHEN, Defendant JURY TRIAL DEMANDED NonCE TO PLEAD TO: Boyd E. Diller, Inc. 6820 Wertville Road Enola, P A 17025 You are hereby notified to file a written response to the within New Matter and Counterclaim within twenty (20) days of service upon you or a judgment may be entered against you. ~k 1\ttorneyId.No.37449 305 N. Front Street, Suite 403 Harrisburg, PA 17101-1236 Date: April 18, 2001 17807-1 oJ ""~.. -- ~ ..~ ~. .~ I~ .~=. ~ .....,- '.-' 'h , ' I IN THE COURT OF COMMON PLEAS OF CUMBERLAND C<i>UNTY, PENNSYLVANIA BOYD E. DILLER, INC., Plaintiff, v. No. 01-1152 CIVIL TERM CIVIL ACTION - LAW THOMAS W. GAUGHEN, Defendant JURY TRIAL DEMANDED ANSWER. NEW MATTER AND COUNTERCLAIM OF DEFENDANT THOMAS W. GAUpHEN TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant Thbmas W. Gaughen (hereinafter "Gaughen") and files the following Answer, New Matter and ~ounterclaim to Plaintiffs complaint as follows. 1. Admitte1 upon information aJd belief. 2. Admitted, with the exception t;hat the Defendant did not execute any agreements as "Tom Gaughen Real Estate." 3. Denied as a legal conclusion requiring no response. 4. Denied as stated. The writing attached as Exhibit A is not a separate contract between the parties. Rather, it is a statement of value directed to Hampden Township referring to work intended to be the subject of a municipal performance agreement for bonding purposes, The work referred to in that writing is a part of the work to be performed under the agreement dated March 6, 1997. 5, Admitted that what is attached, as Exhibit B to Plaintiff s complaint is the March 6, 1997 agreement between the parties for a fixed price of $826,433.34. 6, Admitted and denied. Admitted that during the course of the work, Gaughen directed Diller by written change order to perform certain extra work. Denied that all extra work ;~.k"~" ',,"-~ ~M" ~" , , j ,. - ~ ., '~ claimed by Diller was ever authorized by Gaughen, It is also denied that the value of authorized extra work by Gaughen increased the contract value to 1,081,236.21. 7. Denied. It is specifically denied that Diller performed all of its work in a workmanlike manner. To the contrary, much of Diller's work was substandard, defective and not in accord with contract specifications. Much of the work performed by Diller has to be redone. For all those reasons stated in Defendant's Counterclaim, below, Diller is not entitled to the payment requested, but rather is indebted to Gaughen for the cost to complete and/or repair work. 8. Admitted, subject to audit, that Gaughen has paid Diller $877,867.31 without retainage. Denied that Gaughen owes Diller ilny contract balance. To the contrary, for all those reasons stated in Gaughen's Counterclaim, no further balance is due Diller. It is further denied that the statement of account attached as Exhibit C reflects any amounts owed Diller. 9. Denied in that the contract between the parties speaks for itself. 10. By way of response, Gaughen incorporates his responses to paragraphs 1-9 as though the same were fully set forth herein at length. Further, Gaughen specifically denies that any payments have been in arrears and/or that any further payment is due. Wherefore, the Defendant Gaughen respectfully requests that judgment be entered in his favor and against the Plaintiff Diller, and for such other and further relief as this Court deems just and proper. NfEWMATTfER 11. Gaughen hereby incorporates its averments to paragraphs 1-10 as though the same were fully set forth herein at length. 12. Plaintiff fails to state any causy of action against Gaughen. ..;~- '" .~ , ...._--~ ~ - - ~ ~ ' , , ,~' ,,> " l~':i'; " . 13. Plaintiff has failed to satisfy all conditions precedent to receiving any other payments under its contract with Gaughen. 14, Plaintiff is not entitled to any further payments from Gaughen, as Plaintiff is in breach of its contract with Gaughen. 15. If any payments are due Plaintiff, said payments being denied by Gaughen, any such amounts are not due by virtue of any offsets Gaughen has for defective and/or contract work that did not meet specifications. 16. Not all change order work claimed by Diller is compensable, as certain work was never approved by Gaughen. 17. Gaughen is not liable for payments to Diller for work Diller performed in order to correct defective and/or non-conforming work. 18. Diller's claim for payment is barred for all those reasons stated in Gaughen's Counterclaim. Wherefore, the Defendant Gaughen respectfully requests that judgment be entered in his favor and against the Plaintiff Diller and for such other and further relief as this Court deems just and appropriate. COUNTERCLAIM 19. Gaughen hereby incorporates by reference paragraphs 1-18 as though the same were fully set forth herein at length. 20. The contract between the parties IS as reflected by Exhibit B to Plaintiffs Complaint and as modified by approved change orders between Gaughen and Diller. 21. All work to be performed by Diller was to be in accord with the contract between the parties and in a good and workmanlike manner. ': -"<"'"'.... ~~ .-= L "-,, ">";~ 22, Despite numerous oral and written notices by Gaughen to Diller, Diller failed, refused and outright failed to perform many aspects of its contract in accord with the contract between the parties and in a good and workmanlike manner. 23. The particulars in which Diller performed defective work and/or work not in accordance with the contract and/or not in a workmanlike manner, include, but are not limited to, the following: a. the retaining wall behind Buildings 26 and 27 and related work was made necessary by virtue of defective and/or non-conforming work by Diller; b. parking lot number 26 needs to be re-built, lines painted, and repairs made to damaged landscaping; c. parking lot number 22 needs to be re-built, lines painted, and repairs made to damaged landscaping; d. the grade at buildings 27 and 28 need to be established at their proper grade; e. broken inlets need to be repaired and landscaping needs to be re- established; f. topsoil needs to be replaced where unsuitable material was placed by Diller; g. certain road radii need to be removed, excavated, bases re-built, binder replaced, topcoats placed and sealed; h. certain utility conduits need to be excavated, lowered, sealed and encased and associated landscaping reestablished; <,~___~".,,~. I~... ~"'ljl- ,."" ~' 1 ;..1 ~. 0 ,.- ~m~~jl>' 1. certain areas require the replacement of topsoil, re-grading and reo landscaping; J. Warren Way from its intersection at Louisa Lane at building 23 and the bend of Warren Way must have grades corrected; k. Lenker Street extended beginning at Building 20 to the farmhouse and the farmhouse parking lot must have grades corrected; 1. stone ballast and waste material at the entrance to the Brambles must be removed and replaced with topsoil; m. buried debris, trees stwnps in the base of the Brambles pond and from other unauthorized areas must be removed and landscaping reestablished; n. debris deposited in the battlefield must be removed and grades and reseeding; o. damage to the property caused by Diller must be repaired or reimbursed to Gaughen; p. the storm inlet at the rental office on Louisa Lane must be straightened; q, stone driveway to the farmhouse must be removed and suitable topsoil placed and landscaping reestablished; r. unsuitable material place as topsoil must be removed and replaced with suitable topsoil; s. the end of Building 1 must be regraded and topsoil replaced for proper drainage; 1. the rear of Buildings 2 and 3 must be regraded and topsoil replaced for proper drainage; -. -~~ ~ ~ LL , ~, -'.'~ k..-.- ~"'Mh_j u, Utilities at the rear of Building 18 must be lowered, the grade reestablished and topsoil replaced for proper drainage. 24. Each of the above stated items have caused and continue to cause Gaughen damages for which the Plaintiff Diller is liable. 25. Each of the above stated items, in additional others too numerous to mention, constitute material breaches by Diller under the contract between the parties. 26. Although a precise estimate of the costs of breaches and damages by Diller cannot be stated at this time, Gaughen estimates that the amount of this Counterclaim exceeds $400,000, Wherefore, the Defendant/Counterclaimant Gaughen hereby requests that judgment in excess of $400,000 be entered in its favor and againstthe Plaintiff Diller, plus interest, costs of suit and for such other and further relief as this Court deems just and appropriate. lctor P. Dilworth Paxson LLP 305 N. Front Street Suite 403 Harrisburg, PA 17101 (717) 236-4812 DATED: April 17,2001 "' I ,0- _, VERIFICATION Subject to the penalties for falsification to authorities prescribed by 18 Pac C.S. g4904, I, Thomas W. Gaughen, hereby certifY that the facts set forth in the foregoing are true and correct to the best of my personal knowledge, information and belief. e""_ ~"jj! 77 *1 17808-1 "~ ~~""",,"",- '~.,,""~ "~" ,-. " --'~~'-~ CERTIFICATE OF SERVICE I hereby certify that I caused a copy of the foregoing to be served upon the following counsel this 18th day of April 2001 via first-class mail, postage prepaid: Philip H. Spare, Esquire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Philip Clark Jones, Esquire Braude & Margulies, P.C. 888 17th Street, N.W. Suite 500 Washington, D.C. 20006 ':~~1mm>_*li~~'fui:lh'M~f/;jIi!Eii\:.oiii'.r;i,;.\f"~,"';"~~Bfr-"\<;;t;''''-'''''",-:8'.,-~~''{",-k1"-"-"'00A,,~~,,,,"'I;,,,,.irfue,.iI<l><;;~' ~~'''''d~Oli!lJll!IiU~~ .~. "-r' "",. ,~..~ ,~ .~ -- ,.", . " -" ,~ ~" ~.~> "=.'''''''''''''''~. ." , "'"llUlr:kI&l!'" "",-~ ,~ ??; (/~ r',:':' J' , .~ ,". C) C) c.~ 3''''' -" ;.U ~~ S! """ ',D C;? "-') ~ld' !( .., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BOYD E. DILLER, INC. Plaintiff No. 01-1152 Civil Term vs. Civil Action - Law THOMAS W. GAUGHEN PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Please enter my appearance as co-counsel on behalf of the Plaintiff, Boyd E. Diller, Inc., in the above-captioned action. CGA Law Firm Countess Gilbert Andrews, P.C. BY:~V. Lawrence V . Young, Es Supreme Court No. 210 29 North Duke Street York, Pennsylvania 17401 Telephone: (717) 848-4900 Date: July lL 2001 {OOO79287/1} ,,' "~' .' ',> IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BOYD E. DILLER, INC. Plaintiff No. 01-1152 Civil Term vs. Civil Action - Law THOMAS W. GAUGHEN CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Praecipe for Entry of Appearance was served on the following via United States First Class Mail: Philip H. Spare, Esq. 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 Philip C. Jones, Esq. Braude & Margulies, P.C. 888 17th Street NW Suite 500 Washington, DC 20006 Victor P. Stabile, Esq. Dilworth Paxson LLP 305 North Front Street Suite 403 Harrisburg,PA 17101 Robert Knupp, Esq. Knupp, Kodak & Imblum 407 North Front Street Harrisburg, PA 17101 Counsel for Creditors Committee David Nowotarski, Controller Mountain View Reclamation 9446 Letzburg Road CITeencastle,PA 17225-9317 Chairman of Creditors Committee {OO079287/1} ~~- ."-'k.:' f ~~..;"- 1-'.0 ' ... Executive Insights 4 Eastgate Drive CampHill,PA 17011 Boyd E. Diller, Inc. 6820 Wertzville Road Enola, P A 17025 Countess Gilbert Andrews " , >-". k', ". -, _ ,,,,;~ ,j '-';1: By: ~~/J1 uJuutlR/l/ Chrtstma M. Werner, paralegal Dated: July L, 2001 {OO079287/l} '""..;.""'~ -'I ~f"iillliiiI~liUIdit'ljll"-.'~- '".'.~~_)ill,~~I;;l~i;&;-;:-t'lit.;w.l!!\!l.f"blil~f.!;1 -rr~' ~-Md"- ,~"o ~= ,t.J.. --,i1~I" - ;,,~ -"',-. f'i'l ,~ ~'--; / (,.'1 ~.:c ~, 0l~? (J ::;l C."-, '-'.. -'-I f',_,) :)1 (.<J .-' ~ '] ~' ""__i .< "t 'Ii, I II Ii ,i Ii i I ~ " :1 I' !i I ~~ ~ t LAW OFFICES SNELBAKER, BRENNEMAN & SPARE ,,~i~ BOYD E. DILLER, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, : NO: 01-1152 CNIL TERM vs. : CNIL ACTION - LAW THOMAS W. GAUGHEN, : JURY TRIAL DEMANDED Defendant PETITION FOR ADMITTANCE PRO HAC VICE Philip H. Spare, Esquire of the law firm ofSnelbaker, Brenneman & Spare, P.C., attorneys of record for Plaintiff, Boyd E. Diller, Inc., ("Diller"), files the within Petition requesting this Court to issue an order formally granting permission for Michael Beard, Esquire and Herman M. Braude, Esquire to participate and appear in the above-captioned case as counsel on behalf of Plaintiff Diller. It is further requested that this: Court waive any requirement that Pennsylvania counsel accompany Attorneys Beard and Braude during court proceedings. Philip H. Spare further states that: 1. Michael Beard is a member in good standing of the Bar of the State of Maryland and the Bar of the District of Columbia. 2. Herman M. Braude is a member in good standing of the Bars of the District of Columbia, the States of Maryland, New York and Florida. He was also admitted to practice before the United States Supreme Court in 1970. 3. Messrs. Beard and Bfllude are both of the law firm of Braude & Margulies, P.C., 888 17th Street, NW, Suite 500, Washington, D.C. 20006. Diller has retained the firm of Braude and Margulies, P.C. in part due the firm's special expertise in the area of construction law. :;,'9i - . -, , - ",,"I J , .,~~ ." .< ~"ii/ ~'.'*b:' , 4. This Petition was brought to the attention of Victor P. Stabile, Esquire, counsel for Defendant Thomas W. Gaughen. He does not oppose the request contained in this Petition. Respectfully submitted, ~Pl~ P IIp H. S are, Es re Snelbaker, Brenneman & Spare, P.C. Pac Supreme Court I.D. #65200 44 West Main Street P.O. Box 318 11echanicsburg,Pi\ 17055-0318 (717) 697-8528 A-;z,7i~ Herman M. Braude, Esquire Michael Beard, Esquire Herman M. Braude, Esquire Braude & Margulies, P.C. 888 17th Street, NW, Suite 500 Washington, D.C. 20006 (202) 293-2993 Co-Counsel for Boyd E. Diller, Inc. Date: October 3/ ,2002 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 Petition for Admittance Pro Hac Vice to be served upon the persons and in the manner indicated below: FIRST CLASS MAIL. POSTAGE PREP AID. ADDRESSED AS FOLLOWS: Victor P. Stabile, Esquire Dilworth Paxson LLP 305 North Front Street Suite 403 Harrisburg, PA 17101-1236 Michael Beard, Esquire Braude & Margulies, P.C. 888 lih Street, N.W. Suite 500 Washington, D.C. 20006 5il2J~ Philip H. Spare, E quire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Plaintiff, Boyd E. Diller, Inc. Date: November I, 2002 LAW OFFICES SNELBAKER, BRENNEMAN & SPARE I ~~~iii1!iilJlj!~i<-.aiilllil;mmnMS!lllrr:lillM-!;):Sii#m!.,.'ili~kjiJii..'''~';N,~bri''''b"",,~IiiO;;m:;1k\lM:t!~.r u '." '~ _.."- M~O .,,"' , ,~~,~,~ ""-"i'iilliliillirll~- ;"-"~""-~.ooIWi~ " '"'"~lj o s:: --:,fJ:. n1f:-' ':Z:. ::.;-- ;;-::"i...,. ~l ~~~-~ <- -'-:?C'. ~~~, z, ::< l:".:) t".) :,r- '.::1 .,::.:. ~, h', , () -on 'Gi -r' " [-' ~.-o -"'1,'" ~. -' 4' ,0 ;~~'\ -< " BOYD E. DILLER, INC., : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, : NO: 01-1152 CIVIL TERM vs. : CIVIL ACTION - LAW THOMAS W. GAUGHEN, : JURY TRIAL DEMANDED Defendant NOW THIS ~ day of . , 2002, upon consideration ofthe foregoing Petition for Admittance Pro Hac Vice filed by Philip H. Spare, Esquire, an attorney of record for Plaintiff, Boyd E. Diller, Inc., in the above referenced case, said Petition is GRANTED and it is hereby ORDERED that Michael Beard, Esquire and Herman M. Braude, Esquire, of the law firm of Braude & Margulies, P.e. be granted permission to participate and appear in the above referenced cases as counsel with Philip H. Spare, Esquire, on behalf of Plaintiff, Boyd E. Diller, Inc. It is hereby further ORDERED, that any requirement that Pennsylvania counsel accompany Michael Beard, Esquire and Herman M. Braude, Esquire, during court proceedings is waived. LAW OFFICES SNELBAKER. BRENNEMAN & SPARE . LapH~;~.l 11-8'tJ, RXs l: 0: olti Z) ~o.b'\ \ e.. B e.o..rd 0ro.,lte. BY THE COURT, J. .. ~illiIIli1~$fI,l(;Miil-Jt.lf31<",JMitrj'!",",':%ii<rll:~lfli%l;;:j~i0:;AA"'-~b"b'Li;,""l..~&"".>;k,',i)SllTh:4WJi:m;ii%'AA_.ti-~'-i!:~.'- 'U~ llIY ,.,. ^","",,<<,_ ~ H'''''~ ,,~,~ __ '", "~A'. ."~_"""",,..t'^',,., \:/ij\:\','l'1~r\\ '. - , I J~V'.-""";,/' IU\\)i\;IV:kl I\.!./\! )',.!.' 1 "..",1' l'-l....,,~.'O '" ."--.J '''''1 ,',--:/'!r -<J-" CG .,' .() 'li'"'' A ill ,,",---' " "", 0,0' ,-.,,~' ." " ''''''''-'.. .' ~ f? - {i,(jN 2'U -"I.:fO ,W,__,,,_ .. "'''''" .,~ 0" - rm~JJlMiUf ,'w ,., - ,~ ~ . Il, ~ 1 f LAW OFFICES SNELBAKER, BRENNEMAN & SPARE BOYD E. DILLER, INC, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs, : No, 01-1152 CIVIL TERM THOMAS W, GAUGHEN, CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED REPLY TO NEW MATTER AND COUNTERCLAIM OF DEFENDANT THOMAS W, GAUGHEN AND NOW, comes the Plaintiff, Boyd E. Diller, Inc., (hereinafter "Diller") and files the following Reply to New Matter and Counterclaim as follows: NEW MATTER 11. Diller hereby incorporates by reference the averments contained in Paragraphs 1- 10 of its Complaint. 12, Paragraph 12 states a legal conclusion to which no response is required. 13, Denied. It is denied that Plaintiff has failed to satisfy all conditions precedent to receiving any other payments under its contract with Gaughen, 14. Denied, It is denied that Plaintiff is not entitled to any further payments from Gaughen and further denied that Plaintiff is in breach of its contract with Gaughen. 15. Denied. It is denied that if any payments are due Plaintiff, said payments being denied by Gaughen, any such amounts are not due by virtue of any offsets Gaughen has for defective and/or contract work that did not meet specifications, 16, Denied. It is denied that not all change order work claimed by Diller is compensable, as certain work was never approved by Gaughen. , LAW OFFICES SNELBAKER, BRENNEMAN & SPARE 17. Denied, It is denied that Gaughen is not liable for payments to Diller for work Diller performed, It is further denied that Diller performed defective or non-conforming work. 18. Denied. It is denied that Diller's claim for payment is barred for all those reasons stated in Gaughen's Counterclaim, WHEREFORE, Plaintiff Boyd E. Diller, Inc., respectfully requests your Honorable Court to enter judgment in its favor and against Defendant Gaughen. COUNTERCLAIM 19. Diller hereby incorporates by reference Paragraphs 1-18 of its Complaint. 20, Admitted. 21. Admitted. 22. Denied, It is denied that despite numerous oral and written notices by Gaughen to Diller, Diller failed, refused and outright failed to perform many aspects of its contract in accord with the contract between the parties and in a good and workmanlike manner. 23. Denied. It is denied that the particulars in which Diller performed defective work and/or work not in accordance with the contract and/or not in a workmanlike manner, include, but are not limited to, the following: a. It is denied that the retaining wall behind buildings 26 and 27 and related work was made necessary by virtue of defective and/or non-conforming work by Diller; b, It is denied that parking lot number 26 needs to be re-built, lines painted, and repairs made to damaged landscaping; c. It is denied that parking lot number 22 needs to be re-built, lines painted, and repairs made to damaged landscaping; 2 :'., . -->:':':,.,,';,,-, ". ,,::;:.:.. . d, It is denied that the grade at buildings 27 and 28 need to be established at their proper grade; e. It is denied that broken inlets need to be repaired and landscaping needs to be re-established; f. It is denied that topsoil needs to be replaced where unsuitable material was placed by Diller; g, It is denied that certain road radii need to be removed, excavated, bases re- built, binder replaced, topcoats placed and sealed; h. It is denied that certain utility conduits need to be excavated, lowered, sealed and encased and associated landscaping re-established; 1. It is denied that certain areas require the replacement oftopsoil, re-grading and re-landscaping; J. It is denied that Warren Way from its intersection at Louisa Lane at building 23 and the bend of Warren Way must have grades corrected; k. It is denied that Lenker Street extended beginning at building 20 to the farmhouse and the farmhouse parking lot must have grades corrected; 1. It is denied that stone ballast and waste material at the entrance to the Brambles must be removed and replaced with topsoil. m, It is denied that buried debris, tree stumps in the base of the Brambles pond and from other unauthorized areas must be removed and landscaping re-established; LAW OFFICES SNELBAKER, BRENNEMAN & SPARE n, It is denied that debris deposited in the battlefield must be removed and grades and reseeding; 3 I I LAW OFFICES SNELBAKER., BRENNEMAN & SPARE . , '. , " " , )'v' -L ,"",,~; - "- " ',:;'. , , o. It is denied that damage to the property caused by Diller must be repaired or reimbursed to Gaughen; p, It is denied that the storm inlet at the rental office on Louisa Lane must be straightened; q. It is denied that the stone driveway to the farmhouse must be removed and suitable topsoil placed and landscaping re-established; r. It is denied that unsuitable material place (sic) as topsoil must be removed and replaced with suitable topsoil; s. It is denied that the end of building 1 must be regraded and topsoil replaced for proper drainage; 1. It is denied that the rear of buildings of 2 and 3 must be regraded and topsoil replaced for proper drainage; u. It is denied that utilities at the rear of building 18 must be lowered, the grade re-established and topsoil replaced for proper drainage, 24. Denied. It is denied that each of the above stated items have caused and continue to cause Gaughen damages for which the Plaintiff Diller is liable. 25. Denied. It is denied that each of the above stated items, in addition others (sic) too numerous to mention, constitute material breaches by Diller under the contract between the parties, 26, Denied. It is denied that although a precise estimate of the costs of breaches and damages by Diller cannot be stated at this time, Gaughen estimates that the amount of this Counterclaim exceeds $400,000. 4 I LAW OFFICES $NELBAKER, BRENNEMAN & SPARE WHEREFORE, Plaintiff Boyd E, Diller, Inc., respectfully requests your Honorable Court to deny the relief requested by Gaughen and to enter judgment in its favor and against Defendant Gaughen. Respectfully submitted, SNELBAKER, BRENNEMAN & SPARE, P.C. BY~~ 44 West Main Street P,O, Box 318 Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Plaintiff, Boyd E, Diller, Inc. Dated: May I~ ,2001 5 -,,-, LAW OFFICES SNELBAKER, BRENNEMAN & SPARE .c, ..,...' CORPORATE VERIFICATION I, Walter 1. Diller, state that I am Vice President of Boyd E. Diller, Inc., the Plaintiff herein, that I am authorized to make this affidavit on its behalf and that the facts set forth in the foregoing Reply to New Matter and Counterclaim are true upon my personal knowledge, information and belief. I understand that my statements are made subject to the 18 Pa. Cons. Stat. Ann, S 4904 providing for criminal penalties for unsworn falsification to authorities, ~LD~ Walter 1. Diller Date: May I~, 2001 6 ..L I \ CERTIFICATE OF SERVICE I, PHILIP H, SPARE, ESQUIRE, hereby certify that I have on the below date, caused a true and correct copy of the foregoing Reply to New Matter and Counterclaim to be served upon the person and in the manner indicated below: FIRST CLASS MAIL POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Victor p, Stabile, Esquire Dilworth Paxson LLP 305 North Front Street Suite 403 Harrisburg,PA 17101 LAW OFFICES SNEL8AKER, BRENNEMAN Be SPARE Date: May I ~ Philip C. Jones, Esquire Braude & Margulies, P.C. th 888 17 Street, N.W. Suite 500 Washington, D.C, 20006 Y?:M~ Snelbaker, Brenneman & Spare, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg,P1\ 17055-0318 (717) 697-8528 Attorneys for Plaintiff, Boyd E. Diller, Inc. ,2001. I ~~~lI<.a' ? '~iJ'!~M'J~~l~~iiM,..tt<<~4lm;:~~j~fji,I$'Hk~tl<^~~illi&al!.~> -,.. ,~.~ -. M!IIlIl~ ~ ,~ ... . ". -1Iii..;.;;,......-' o C :::~..~ ~,AJ ~t~ ~E~; .)>c: 2" ..:::; -< A~.. C":; ::t ::',':1< -< .;~-' -"'CJ :~)~ " ~~~1 ~ ;.;::~ 53 -< r:.;1 I:" (,.) I r:. :.~ ~ri r- \ ~ T) -'."... ~ '1 ~a:'^ 'f;J.e.' ;r .. . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA BOYD E, DILLER, INC., Case No. 01-1152 Plaintiff, v. CIVIL ACTION - LAW THOMAS W. GAUGHEN, Defendant. PRAECIPE TO SATISFY AND DISCONTINUE WITH PREJUDICE Whereas the parties in this case have reached a Settlement Agreement, Plaintiff Boyd E. Diller hereby requests that the above-referenced action be dismissed with prejudice. Respectfully submitted, BOYD E. DILLER, INC. DATE: August ;2.3, 2004 P~hil' H S 7l--eE IP . pare, sq. Snelbaker, Brenneman & Spare, P.e. 44 W. Main Street Mechanicsburg, P A 17055 (717) 697-8528 ATTORNEY FOR BOYD E. DILLER, INC. OF COUNSEL Herman M. Braude BRAUDE & MARGULIES, P.C. 888 17th St., N.W., Suite 500 VVashington, D.C. 20006 (202) 293-2993 I- -,""-.I,.. I [.:..&..lI~IIii.",., ;, ... . CERTlnCATEOFSERVICE I HEREBY CERTIFY that a copy of the foregoing Praecipe to Satisfy and Discontinue with Prejudice was served by mail on counsel for Defendant Thomas W. Gaughen, addressed as follows: Victor P. Stabile, Esquire Dilworth Paxson LLP 205 N. Front Street, Suite 403 Harrisburg, Pennsylvania 17101-1236 this ~3day of August, 2004. 'i!l!t~ 2 ,CL '~~1b"'<oli~_W:ni~'~'.>.- . ';"'c'llJliii_i~,_ " , , ,-~ -,,, ,=~~ ,- -~ < ~_, ^ . ''''''_'' ~_,,~,"^c ^" (? ~ ~'- ~-~ -;~~ ~" " " ,',', ,'","- " ~,....,"..".. .# ._" ,,- .. ,.- "~ "" (~':l' 2:;. "'- " -11 :T1 fi'j :JJ r- ~~~ is~~ ~i -< ~" C- dS i"> W :t;:::" ~-"''''' C3 N 0'1 ..