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HomeMy WebLinkAbout01-04277PENNSY SUPPLY, INC., Plaintiff vs. BARCLAY WHITE SKANSKA, INC., Defendant AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO.OI-4277 CIVIL ORDER 7O ~ day of June, 2005, upon consideration of the foregoing petition, it is hereby ordered that: 1. A rule is issued upon the Respondent, Pennsy Supply, Inc., to show cause why the Petitioner, Barclay White Skanska Inc., is not entitled to the relief requested; 2. The Respondent, Pennsy Supply, Inc., shall file an Answer to the Petition within twenty (20) days of the date of this order; 3. The petition shall be decided under Pa.R.C.P. No. 206.7; 4. Depositions regarding this rule to show cause shall be completed within days of the date of this order. 5. The Prothonotary is directed to list this matter for the next regular session of argument court set for July 6, 2005; and 6. Notice of the entry of this order shall be provided to all parties by the petitioner. BY THE COURT, ~~ Kevin QLI Hess, J. s~ ~ ~~. ~~ ~s e f~... ,: ~~ ~Gn~'t~i~Ui-ll~~ld ~0 ~~1~~~ Y RECEIVED 1UN 02 200~,1n IN THF, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA ~"1 PENNSY SUPPLY, INC., Plaintiff, v, No. 01-4277 CIVIL TERM BARCLAY WHITE S!KANSKA INC., CIVIL ACTION -LAW Defendant. ORDER AND NOW, this day of , 2005, upon consideration of the foregoing petition, it is hereby ordered that (1) A rule is issued upon the Respondent, Pennsy Supply, Inc., to show cause why the Petitioner, Barclay White Skanska Inc., is not entitled to the relief requested; (2) The Respondent, Pennsy Supply, Inc., shall file an Answer to the Petition within 2p days of the date of this Order; (3) The Petition shall be decided under Pa. R.C.P. No. 206.7; (4) Depositions regarding this Rule to Show Cause shall be completed within days of the date of this Order; (5) Argument shall be held on , 2005, in Courtroom of the Cumberland County Courthouse; and (6) Notice of the entry of this Order shall be provided to all parties by the Petitioner. BY THE COURT: J. ,~ COHEN, SEGLIAS, PALLAS, GREENHALL & FURMAN, P.C. By: Edward Seglias, PA ID No. 55103 By: Rene David Quinlan, PA ID No. 73134 1515 Market Street, Eleventh Floor Philadelphia, PA 19102 (215)564-1700 (Attorneys for Defendant Barclay White) PENNSY SUPPLY, INC., IN THE COURT OF COMMON PLEAS OF CIJMBERLAND COUNTY, PA Plaintiff/Respondent, v. BARCLAY WHITE SKANSKA INC., No. 01-4277 CIVIL TERM CIVIL ACTION -LAW Defendant/Petitioner PETITION FOR RULE TO SHOW CAUSE WHY CASE SHOULD NOT BE TERMINATED Defendant/Petitioner, Barclay White Skanska Inc. ("Barclay White"), by and through its attorneys, Cohen, Seglias, Pallas, Greenhall & Furman, P.C., files the within Petition for Rule to Show Cause Why Case Should Not Be Terminated, averring as follows: 1. Plaintiff/Respondent, Pennsy Supply, Inc. ("Pennsy"), commenced this action by filing a Complaint on or about July 13, 2001. 2. On August 9, 2001, Defendant/Petitioner Barclay White filed Preliminary Objections, and by Order of Court dated October 30, 2001, the Honorable Edward E. Guido sustained Barclay White's Preliminary Objections and permitted Pennsy to replead within twenty (20) days. 3. On or about November 6, 2001, Pennsy filed an Amended Complaint, and on December 20, 2001, Barclay White filed an Answer and New Matter. 4. On or about December 28, 2001, Pennsy filed a Reply to New Matter, which was +d the last pleading filed of record with the Court. Since December 28, 2001, no activity has taken glace on the docket. 5. Barclay White served its First Set of Interrogatories and First Requests for Production of Documents on August 2, 2002. On or about October 7, 2002, Pennsy served Answers to Barclay White's Interrogatories and Responses to Barclay White's Requests for Production. Pennsy has not propounded any discovery. 6. On January 10, 2005, and January I1, 2005, Rene David Quinlan, one of the undersigned attorneys for Barclay White, contacted the attorney for Pennsy, W. Scott Henning, Esquire, to seek his concurrence to either prosecute or dismiss the case. On January 11, 2005, Mr. Quinlan spoke and left a message with Mr. Henning's secretary, but Mr. Henning has not returned the telephone call. 7. Pa. R.C.P. 230.2, "Termination of Inactive Cases," provides, in part, that "[t]he court may initiate proceedings to terminate a case in which there has been no activity of record for two years or more by serving a notice of proposed dismissal of court case." 8. Barclay White, now known as Skanska USA Building Inc.-Mid-Atlantic Division, should not have to suffer the threat and prejudice of a case that has been inactive for approximately four and one-half (4-1/2) years, since December 28, 2001. 9. Barclay White respectfully requests that the Court initiate the termination of this inactive case pursuant to Pa. R.C.P. 230.2. ~, WHEREFORE, Defendant/Petitioner, Barclay White Skanska Inc., respectfully requests that the Court issue a Rule to Show Cause Why Case Should Not Be Terminated in the form of Order submitted herewith. Dated: ~ 23 'ADS Respectfully submitted, COHEN, SEGLIAS, PALLAS, GREENHALL & FURMAN, P.C. By; ----. Edward Seglias Rene David Quinlan 1515 Market Street, Suite 1100 Philadelphia, PA 19102 (215)564-1700 (Attorneys for Defendant Barclay White) CERTIFICATE OF SERVICE I hereby certify that, on the ay of May, 2005, a true and correct copy of Defendant/Petitioner, Barclay White Skanska Inc.'s, Petition for Rule to Show Cause Why Case Should Not Be Terminated was served by U.S. First Class Mail, postage prepaid, upon the following: W. Scott Henning, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road Harrisburg, PA 17110 (Attorneys for Plaintiff, Pennsy Supply, Inc.) Rene David Quinlan ~ ~a ~ _ C:J1 _ ~`"' Y _ _~ e.~.~ • ~'1 ' w.. [.~ t_: ~ 1 -:'~ i ` ~ Gv .~ ~~~ ~C-~ ~ 2 ~oo~., COHEN, SEGLLAS, PALLAS & GREENHALL, P.C. By: Edward Seglias PA ID No. 55103 By: Rene David Quinlan PA ID No. 73134 1515 Market Street, Eleventh Floor Philadelphia, PA 19102 (215)564-1700 PENNSY SUPPLY, INC. Plaintiff, v. BARCLAY WIIITE SKANSKA INC. Defendant. Attorneys for Defendant Barclay White Skanska Inc. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4277 CIVIL TERM CIVIL ACTION -LAW BRIEF IN SUPPORT OF PRELINIINARY OBJECTIONS Defendant, Barclay White Skanska Inc. ("Barclay White"), by and through its attorneys, Cohen, Seglias, Pallas & Greenhall, P.C, files the withinBriefin Support ofPreliminaryObjections,stating as follows: I. Background Defendant Barclay White and Bryan A. Ziegler Excavating & Paving Ina ("Ziegler' are parties to an agreement whereby Ziegler agreed to perform certain excavating and paving work with respect to the Pinnacle Outpatient Health Center located in Mechanicsburg, Pennsylvania ("the Project"), in consideration ofthe base contract price of $1,357,292 ("the Ziegler Agreement"), subj ect to contract additions and deletions. By letter dated October 5,1999, Ziegler requested that Barclay White agree to a modification of the ZieglerAgreementwhereby, among otherthings, Barclay WYritewas authorized "to issue ajoint check [to Ziegler and Pennsy Supply Co., Inc.] when requested by the subcontractor, Bryan A. Ziegler Excavating & Paving, Inc." The request also states the amount "should not exceed $275,000 for the ... [P]roject. Barclay White made payments to Ziegler, which included amounts that were to be paid to Pennsy Supply. Significantly, ZieglerneverrequestedthatBarclayWhitemakeanypaymentjointlytoZieglerand Pennsy Supply. On or about July 13, 2001, PennsySupplyfileditsComplaint againstBarclayWhite, andBarclay White timely filed its Preliminary Objections on August 9, 2001. II. LeEal Ar ug ment A. Pennsy Supply Has Failed to Join a Necessary and Indispensable Party Pa. R.Civ.P. 1032 provides, in relevant part: Whenever it appears by suggestion of the parties ... that there has been a failure to join an indispensable party, the court shall orderthat ... the indispensable partybe joined, but ifthat is not possible, then it shall dismiss the action. Pa.R.Civ.P.1032. "Intheabsenceofanindispensablepariy,acourtlacksjurisdictionovermattersbefore it." Grimme Combustion. Inc. v. Mergentime Cora, 595 A.2d 77, 78 (Pa. Super. Ct.1991), alloc. den., 607 A.2d 254 (Pa.1992) ("Grimme"); Sprague v. Casey, 550 A.2d 184,189 (Pa. 1988) ("Sprague"); see Guthrie Clinic. Ltd. v. Mever, 638 A.2d 400, 405 (Pa. Commw. Ct.1994) ("Guthrie"),and Nudi v. Township of Pine, 498 A.2d 55, 57 (Pa. Commw. Ct. 1985) ("Nudi"). In Pennsylvania, "[a] party is to be considered indispensable when its rights are so connected with the claims ofthe litigants that no decree can be made without impairing its rights, and it must be made a 2 party to protect such rights." Grimme, 595 A.2d at 81(citing S ra e and Columbia Gas Transmission Corp. v. DiamondFuel Co., 346 A.2d 788 (Pa.1975) ("Columbia")); Guthrie, 638 A.2d at 405; Nndi, 498 A.2d at 56. The Pennsylvania Supreme Court has set forth guidelines to determine whether or not a party is to be considered indispensable in the pending litigation. The determination "involves at least these guidelines: 1. Do absent parties have a right or interest related to the claim? 2. If so, what is the nature of that right or interest? 3. Is that right or interest essential to the merits of the issue? 4. Can justice be afforded without violating the due process rights of absent parties?" Mechanicsburg Area Sch. Dist. v. Kline, 431 A.2d 953, 956 (Pa.1981) ("Mechanicsburg"); Grimme, 595 A.2dat81. "[A]ninquiryintowhetherapartyisindispensableistobefromtheprospectiveofprotecfing the rights ofthe absentparty, not from the view ofwhether the joinder ornonjoinder of apartywouldmake the matter more difficult to litigate." Id. (citing E-Z Pazks. Inc. v. Philade~hia Pazkins Auth., 521 A.2d 71 (Pa. Commw. Ct. 1987), alloc. den., 536 A.2d 1334 (1987)). Inthis matter, the Complaint alleges thatPennsy Supplyis athird-pariybeneficiaryofapurported "joint-check" agreement ("Joint-CheckAgreement") betweenBarclay White and Ziegler, andthatBarclay White violatedtheJoint-Check Agreementbyfailingtofutfill its purported obligationsto PennsySupply. Pazticulazly, Pennsy Supplyalleges thatBarclay Whitemadepayment directlyto Ziegler, butnotjointlyto ZieglerandPennsySupply. See Complaint,paragraphl2. While denyinganyandallliabilitythereunder, a fairreading ofthe Complaint states thatZieglerreceivedpayment finmBazclayWhite thatwasintended for Pennsy Supply. Under the Pennsylvania Supreme Court's test in Mechanicsbure, on the face ofPennsy Supply's Complaint, Ziegler has a significant interest related to the claim, because it purportedlyreceivedpayments that were intended for Pennsy Supply. Ziegler should be required to appear in order to account for, and ifnecessarydefend, the allegations related to the moneythat waspaidto itbutnot forwarded to Pennsy Supply. Ziegler's interest in this matter is essential to the merits ofthe case, because, accordingto Pennsy Supply's averments,BazclayWhitepaidfortheallegedmaterials. Therefore, the essenceoftheparties' dispute will concemthe status ofthe moneythatwas allegedlypaidto ZieglerbyBazclay White, andwill necessarily involve Ziegler's due process rights. Accordingly, Ziegler is an indispensable pariyto this action because its rights aze so connected to Pennsy Supply'sclaims,thatnoadjudicationcanbemadewithoutimpairingitsrights. Therefore, Ziegler must be made a party to this action. B. Pennsy Supply Has Failed To Satisfy All Conditions Precedent "[A] condition precedent is one whose performance or occurrence the plaintiffmust prove in order to recover." Jennisonv. Aacher,193 A.2d 769, 772 (Pa. Super. Ct.1963). In this regard, Pa. R.Civ.P. 1019(c) states Yhatitis sufficientto avergenerallythat all conditions precedent have beenperformed or have occurred. In this matter, however, the Complaint fails to allege the occurrence of a significant conditionprecedent to BazclayWhite's purported obligation to make joint payment to Ziegler and Pennsy Supply-that is, in the words ofthe Ziegler letter, "the sole purpose ofthis document is to authorize Barclay White Incorporated to issue a joint check when requested by the subcontractor, Bryan A. Ziegler Excavating & Paving, Inc." (Emphasis in original and added.) As cleazly stated in Ziegler's letter, as an express condition precedent to Barclay White's purported 4 obligation to make payment jointlyto Ziegler and Penny Supply, Ziegler was required to make a request ofBarclayWhite. However, the ComplaintdoesnotallegethatanysuchrequestwasmadeofBarclay White, and therefore fails to satisfy the mandate of Pa. R.Civ.P. 1019(c). C. Pennsy Supply Has Failed To Plead The Subiect Matter Of Its Claims Pa. R.Civ.P.1019(a)requiresthat the Complaint state the material facts upon which a cause of action is based, so that a defendant is fairly apprised of the claims against it. Cardenas v. Schober, 2001 WL 988123, at *6 (Pa. Super. Ct. Aug. 30, 2001). Similarly, Pa. R.C.P. 1019(1) requires that when a claim is based upon a writing, a Plaintiff shall attach a copy of the writing to the Complaint. Inthismatter, the Complaint allegesthatPennsySupply"suppliedmaterials"to thePinnacleHealth Systems project, "hav[ing] atotal invoicevalue inthe sumof $149,141.56." Significantly, PennsySupply has failed to identify the specific materials it allegedly supplied, and the cost ofthose specific materials. Pennsy Supply has failed to attach any invoices, purchase orders, quotations, or other like written documentation that describes the specific materials it allegedly supplied, and the cost ofthose specific materials. Therefore, Pem~sySupplyshouldberequiredto amend its Complaintto more specificallydescribe the alleged materials it supplied and the cost ofthose specific materials, and to attach invoices, purchase orders, quotations, or other like written documentation. 5 III. Conclusion In accord with the foregoing argument and authority, Defendant Bazclay White Skanska Inc. respectfully requests that the Court sustain its Preliminary Objections. Respectfully submitted, COHEN, SEGLIAS, PALLAS & GREENHALL, P.C. By: Edward Seglias Rene David Quinlan Attorneys for Defendant Barclay White Skanska Inc. Dated: October 10, 2001 F:~R D Q~Barclay White 6747~Pennsy 059~Brief (P.O.).wpd CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Briefln Support of Preliminary Objections was servedbyUnited States First-Class Mail, postage prepaid, onthe 10th day ofOctober, 2001, upon the following: W. Scott Henning, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road Harrisburg, PA 17110 (Attorneys for Plaintiff, Pennsy Supply, Inc.) Rene David Quinlan PENNSY SUPPLY, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 01-4277 CIVIL TERM BARCLAY WHITE SKANSKA, INC., Defendant CIVIL ACTION -LAW PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S PRELIMINARY OBJECTIONS I. FACTS Plaintiff, Pennsy Supply Inc. (hereinafter referred to as "Pennsy"), is a Pennsylvania corporation engaged in the business of selling and supplying construction materials including, but not limited to, stone, asphalt and concrete. Defendant, Barclay White Skanska, Inc. (hereinafter referred to as "Barclay"), is a Pennsylvania corporation that was involved as a general contractor on a construction project known as the "Pinnacle Health Project". As part of the aforesaid construction project, Barclay contracted with Bryan A. Ziegler Excavating & Paving, Inc. (hereinafter referred to as "Ziegler") wherein Ziegler was presumably contracted to provide certain excavation and paving services for the aforementioned project. Ziegler contracted with Pennsy for Pennsy to supply certain materials to the project. As a condition of Pennsy supplying materials to the project, Pennsy requested Ziegler to obtain a Joint Check Agreement from Barclay. As a result, the document attached to the Complaint as Exhibit "A" was prepared by Ziegler and executed by Michael J. Kosoff, Vice President of Barclay. The document is dated October 11, 1999. The substance of the "Joint Check Agreement" is that Barclay agreed to issue checks to Zieglerjointly payable to Ziegler and Pennsy. In this fashion Pennsy could be assured of receiving payment for materials that Pennsy supplied to the project. On the basis of the Joint Check Agreement executed between Ziegler and Barclay, Pennsy proceeded to supply materials to the project in the form of stone, concrete and other paving materials. Although Pennsy received payment for certain of the materials supplied to the project, as of May 28, 2001, there remained a balance due and owing in the amount of $149,141.56. After Pennsy failed to receive payment from Ziegler, Pennsy initiated the subject cause of action against Barclay seeking payment for the unpaid balance pursuant to the terms of the Joint Check Agreement. It is Pennsy's position that Barclay failed or refused to issue checks jointly payable to Ziegler and Pennsy. In response to the Complaint filed by Pennsy, Defendant Barclay filed Preliminary Objections contending that Pennsy failed tojoin a necessary and indispensable party, that the Complaint failed to allege certain "conditions precedent" and failed to attach necessary documentation to the Complaint. In response to the Preliminary Objections, the Plaintiff (Pennsy) filed a Reply to the Preliminary Objections. This Brief is a supplement to its Reply to the Preliminary - Objections. II. DISCUS51ON 1.The Plaintiff has not failed to join a necessary and indispensable party. 2 The Plaintiffs cause of action against Defendant Barclay is premised upon a third party beneficiary contract theory. In other words, the Plaintiff is asserting that it is a third party beneficiary of the contract that was entered into between Ziegler and Barclay which is documented as Exhibit "A" to the Complaint. As a third party beneficiary, the Plaintiff contends that it has a direct cause of action against Defendant Barclay and that it is not necessary to join Ziegler as a necessary party. The concept of pursuing a direct cause of action as a third party beneficiary under the terms of a Joint Check Agreement has been recognized by a number of Decisions. Glen-fiery Corporation v. Wartel Construction Company, 1999 Pa. Super. 175, 734 A.2d 926 (1999); City of Philadelphia v. Allied Roofers Supply Corp., 410 Pa. Super. 95, 599 A.2d 222 (1990). Moreover, it is the Plaintiffs understanding that Ziegler has filed for protection under the Bankruptcy Code, and therefore, its joinder as a Defendant would be precluded by Section 362 (automatic stay provisions) of the Bankruptcy Code. Additionally, if Defendant Barclay is of the belief that Ziegler is an indispensable party, Defendant Barclay has the option of joining Ziegler as a Third Party Defendant. 2. The Plaintiff has not failed to allege a condition precedent so as to trigger Pa.R.C.P.. It is Defendant's position that the "Joint Check Agreement" (Exhibit "A" to the Complaint) requires Ziegler to specifically request Barclay to issue a joint check. Defendant further asserts that Pennsy's failure to allege in their Complaint that Ziegler made the request to Barclay is a vio{ation of hte pleading rules that require a Plaintiff to allege a "condition precedent". Pennsy's position is that the document read as a whole does not require Ziegler to specifically request Barclay to issue a joint check each time it issues a check to Ziegler. However, even if the Court would eventually intepret the 3 "Agreement" to require a specific request with each invoice directed to Barclay, this is an issue that can and should be addressed as an affirmative defense on the merits of the case. 3. Plaintiff denies that it has failed to attach any necessary documentation to the Complaint. The Plaintiff attached to the Complaint the document which forms the basis of its claim against Defendant Barclay, namely the Joint Check Agreement, which was attached to the Complaint as Exhibit "A". The other documents that Defendant is asserting should have been attached to the Complaint comprise evidence of the outstanding balance and as such do not meet the requirements of a document that must be attached to a Complaint in order to make the Complaint adequate. The Complaint clearly sets forth the document and the cause of action (theory) upon which it is based such that Defendant has the necessary information at their disposal to formulate an Answer to the Complaint. The additional documents, which it seeks, for example, the underlying invoices that comprise the outstanding balance, are documents that can readily be obtained through the customary discovery process, such as Interrogatories and a Request for Production of Documents. The failure to attach the invoices and supporting documentation to substantiate the outstanding balance does not render the Complaint faulty, and as such, Plaintiff requests the Honorable Courtto denythe Defendant's third Preliminary Objection. - 4 III. CONCLUSION In summary, the Plaintiff asserts that the three Preliminary Objections set forth by the Defendant in their Preliminary Objections to the Complaint should be denied and the Honorable Court is requested to order the Defendant to file an Answer to the Complaint within twenty (20) days. Respectfully HANDLER, By: oad 10 (717) 238-2000 Attorney for Plaintif~ I D. #32 8 1300 'nglest n R Harris A 171 s SHERIFF'S RETURN - REGULAR CASE NO: 2001-04277 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PENNSY SUPPLY INC VS BARCLAY WHITE SKANSKA INC DEP DAWN KELL Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BARCLAY WHITE SKANSKA INC the DEFENDANT at 1100:00 HOURS, on the 20th day of July 2001 at 4999 LOUISE DRIVE SUITE 201 MECHANICSBURG, PA 17055 JEFF LYNCH (MANAGER) by handing to 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 18.00 Service 7.15 Affidavit .00 Surcharge 10.00 .00 35.15 Sworn and Subscribed to before m''e(~this ~y-~ day of J ~ ~ A.D. P honotary So Answers: R. Thomas Kline 07/23/2001 HANDLER,HENNING & ROSENBERG By: 0.1U'V1 Deputy eriff ,_ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSY SUPPLY, INC., No. 01-4277 CIVIL TERM Plaintiff, CIVIL ACTION-LAW v. BARCLAY WHITE SKANSKA INC., Defendant. ORDER OF COURT AND NOW, this day of , 2001, upon consideration of Defendant, $arclay White Skanska, Inc.'s, Preliminary Objections, and any response thereto, it is hereby ORDERED that: The Complaint is dismissed for Plaintiff, Pennsy Supply, Inc.'s, failure to join a necessary and indispensable party, namely, Bryan A. Ziegler Excavating & Paving, Inc.; 2. Bryan A. Ziegler Excavating & Paving, Inc., shall be joined by Plaintiff, Pennsy Supply, Inc., as aparty-defendant; 3. The Complaint is dismissed for failure to allege the satisfaction of express conditions precedent; 4. Plaintiff, Pennsy Supply, Inc., shall amend its Complaint within days of the date of this ORDER, and specifically identify the materials it allegedly supplied, and the cost of those specific materials, and shall attach all writings that describe the specific materials it allegedly supplied, and the cost of those specific materials. BY THE COURT: J. E:\R D Q\Barclay White 6747\Pennsy 059\8-80rder.wpd COHEN, SEGLIAS, PALLAS & GREENHALL, P.C. By: Edward Seglias PA ID No. 55103 By: Rene David Quinlan PAID No. 73134 By: Carter N. Williamson PAID No. 77599 1515 Market Street, Eleventh Floor Philadelphia, PA 19102 (215) 564-1700 Attorneys for Defendant Barclay White Skanska Inc. PENNSY SUPPLY, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff, PENNSYLVANIA v. NO. 01-4277 CIVIL TERM BARCLAY WHITE SKANSKA INC. CIVIL ACTION -LAW Defendant. BARCLAY WHITE'S PRELIMINARY OBJECTIONS Defendant, Barclay White Skanska Inc. ("Barclay White"), by and through its attorneys, Cohen, Seglias, Pallas & Greenhall, P.C., files the within Preliminary Objections to Pennsy Supply Inc.'s ("Pennsy Supply's") Complaint, stating as follows: Preliminary Objection pursuant to Pa. R.C.P. 1028(aN51 (Failure to Join a Necessary and Indispensable Party) 1. The Complaint alleges that Pennsy Supply is athird-party beneficiary of a purported "joint-check" agreement (the "Agreement") between Barclay White and Bryan A. Ziegler Excavating & Paving, Inc. ("Ziegler"), and that Barclay White violated the Agreement by failing to fulfill its purported obligations to Pennsy Supply. 2. Particularly, Pennsy Supply alleges that Barclay White made payment directly to Ziegler, but not jointly to Ziegler and Pennsy Supply. See Complaint, paragraph 12. Without admitting the same, and denying any and all liability thereunder, a fair reading of the Complaint states that Ziegler received payment from Barclay White that was intended for Pennsy Supply. Ziegler is a necessary and indispensable party to this action because its rights are so connected to Pennsy Supply's claims, that no adjudication can be made without impairing its rights. Therefore, Ziegler must be made a party to protect its rights. WHEREFORE, Defendant, Barclay White Skanska Inc., respectfully requests that the Court dismiss the Complaint For failure to join a necessary and indispensable party, or alternatively, order that Bryan A. Ziegler Excavating & Paving, Inc., be joined as aparty-defendant. Preliminary Objection pursuant to Pa. R.C.P. 1028(al(2) (Failure to conform to law or rule of court) 4. Pa. R.C,P. 1019(c) states that it is sufficient to aver generally that all conditions precedent have been performed or have occurred. 5. ThepurportedAgreementbetweenBarclayWhiteandZieglerstates,inpart,that"the sole purpose of this document is to authorize Barclay Yl'hite Incorporated to issue a j oint check when requested by the subcontractor, Bryan A. Ziegler Excavating & Paving, Inc." (Emphasis in original and added.) 6. The purported Agreement requires Ziegler, as an express condition precedent to Barclay White's obligation to make payment jointly to Ziegler and Penny Supply, to make a request of Barclay White. The Complaint fails to allege that Ziegler satisfied the express condition precedent of the purported Agreement. WHEREFORE, Defendant, Barclay White Skanska Inc., respectfully requests that the Court dismiss the Complaint for failure to properly allege the satisfaction of express conditions precedent. Preliminary Objection pursuant to Pa. RC.P. 1028(al(21 (Failure to conform to law or rule of court) Pa. R.C.P. 1019(a) requires that the Complaint state the material facts upon which a cause of action is based, so that a defendant is fairly apprised of the claims against it. 9. Pa. R.C.P. 1019(1) requires that when a claim is based upon a writing, a Plaintiff shall attach a copy of the writing to the Complaint. 10. The Complaint alleges that Pennsy Supply "supplied materials" to the Pinnacle Health Systems project, "hav[ing] a total invoice value in the sum of $149,141.56." 11. Pennsy Supply has failed to identify the specific materials it allegedly supplied, and the cost of those specific materials. 12. Pennsy Supply has failed to attach any invoices, purchase orders, quotations, or other like written documentation that describes the specific materials it allegedly supplied, and the cost of those specific materials. WHEREFORE, Defendant, Barclay White Skanska Inc., respectfully requests that the Court order that Plaintiff, Pennsy Supply, Inc., specifically identify the materials it allegedly supplied, and the cost of those specific materials, and attach any writings that describe the specific materials it allegedly supplied, and the cost of those specific materials. Respectfully submitted, COHEN, SEGLIAS, PALLAS & GREENHALL, P.C. /~- By: Edward Seglias Rene David Quinlan Carter W. Williamson Attorneys for Defendant Barclay White Skanska Inc. Dated: August 8, 2001 E:\R D Q\Barclay White 6747\Pennsy 059\8-8POs.wpd CERTIFICATE OF SERVICE I hereby certify that a copy of Barclay White's Preliminary Objections was served on the 8"' day of August, 2001, by overnight mail, postage prepaid, upon the following: W. Scott Henning, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road Harrisburg, PA 17110 (Attorneys for Plaintiff, Pennsy Supply, Inc.) Rene David Quinlan E:\R D Q\Barclay White 6747\Pennsy 059\8-8Cert of Serv C ~ ~ -' ~. ~ Z G= 3~0 ~ (771 ;_; ':.: ~' '~ ' 1 ~ 1 -~i-fl ' ,r ; . ! j G -- r- .7 1-' ~ ~-; C:~ rn v 'r: ~~ -_ .. .gs' , r.-r.,R-,x *w. d.a~!+m, __, s~.;zmw n7yw~.ro,~c~tmwx .. PENNSY SUPPLY, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 01-4277 BARCLAY WHITE SKANSKA, INC. Defendant CIVIL ACTION -LAW PLAINTIFF'S REPLY TO DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, comes the Plaintiff, Pennsy Supply, Inc., by and through its attorneys, HANDLER, HENNING & ROSENBERG, by W. Scott Henning, Esquire, who replies to and Defendant's Preliminary Objections, as follows: Plaintiff's Reply to Defendant's Preliminary Objections pursuant to Pa. R.C.P. 10281a)15) 1. ADMITTED with clarification. Paragraph 1 of Defendant's Preliminary Objection pursuant to Pa. R.C.P. 1028(a)(5), summarizes the basis of the Plaintiffs Complaint, however, the Complaint being a written document speaks for itself and should be read in its entirety to gather the full import of the Complaint. 2. ADMITTED with clarification. Paragraph 2 of Defendant's Preliminary Objection pursuant to Pa. R.C.P. 1028(a)(5), summarizes the basis of the Plaintiff's Complaint, however, the Complaint being a written document speaks for itself and should be read in its entirety to gather the full import of the Complaint. 3. DENIED. It is denied that Ziegler is a necessary and indispensable party to the subject cause of action. The Complaint sets forth a cause of action against the Defendant on the basis that the Plaintiff is a third party beneficiary of the contract between Ziegler and the Defendant and to the extent that an adjudication can be made without affecting or impairing any rights of Ziegler. It is denied that Ziegler must be made a party to the subject cause of action so as to protect it rights. Moreover, Plaintiff believes and therefore avers that Ziegler filed a Chapter 7 Petition of Bankruptcy, and hence, instituting a cause of action against Ziegler would be precluded by Section 362 of the Bankruptcy Code and the Automatic Stay Provisions of Section 362 of the Bankruptcy Code. WHEREFORE, Plaintiff respectfully requests the Honorable Court to deny the Defendant's Preliminary Objection based upon an alleged failure to join a necessary and indispensable party. Plaintiff's Reply to Defendant's Preliminary Objections pursuant to Pa. R.C.P. 10281a112) 4. DENIED. The allegation in Paragraph 4 is simply a recitation of Pennsylvania Rule of Civil Procedure 1019(c), to which no responsive pleading is required. 5. DENIED. The allegation set forth in Paragraph 5 is a quote of one portion of one of the sentences contained in the Agreement. The Agreement being a writing speaks for itself and should be read in its entirety to determine the full import of the Agreement. -2- 6. DENIED. The allegation set forth in Paragraph 6 is a conclusion of law to which not responsive pleading is required. By way of further answer, the Plaintiff denies that the Agreement requires Ziegler, as an express condition precedent to Barclay White's obligation to make payment jointly to Ziegler and Pennsy Supply to make a request of Barclay Wright to issue the payment jointly. 7. DENIED. For the reasons set forth in Paragraphs 4, 5 and 6, the allegation set forth in Paragraph 7 is denied, namely that a necessary allegation to beset forth in the Complaint is that Ziegler specifically requested Barclay White to make the checks jointly payable to Ziegler and Pennsy Supply, Inc. Byway of further answer, the Plaintiff asserts that the issue of whether or not Ziegler requested the Defendant to make the checks jointly payable to Ziegler and Pennsy Supply, Inc., if relevant, is a matter that can be determined through the discovery process, in the form of Interrogatories, Request for Production of Documents and by taking the depositions of the individuals involved in the transactions between the parties. WHEREFORE, Plaintiff respectfully requests the Honorable Court to deny the Defendant's Preliminary Objection based upon Pennsylvania Rule of Civil Procedure 1028(a)(2). Plaintiff's Reply to Defendant's Preliminary Objections pursuant to Pa. R.C.P. 10281a)(21 8. DENIED. The allegation in Paragraph 8 is simply a recitation of what Pa. R.C.P. 1019(a) purportedly requires in terms of pleading the material facts of a cause of action, to which no responsive pleading is required. -3- 9. DENIED. The allegation in Paragraph 9 is simply a recitation of what Pa. R.C.P. 1019(1) purportedly requires in terms of pleading the material facts of a cause of action, to which no responsive pleading is required. 10. ADMITTED with clarification. Paragraph 10 of Defendant's Preliminary Objection pursuant to Pa. R.C.P. 1028(a)(5), summarizes the-basis of the Plaintiff's Complaint, however, the Complaint being a written document speaks for itself and should be read in its entirety to gather the full import of the Complaint. 11. DENIED. The allegation set forth in Paragraph 11 is a subject that is more appropriately left to the discovery process. Defendant can readily obtain the information that is being requested in Paragraph 11 by virtue of a simple set of Interrogatories and/or a Request for Production of Documents. 12. ADMITTED. It is admitted that the Plaintiff has attached any invoices, purchase orders or other similar documentation to the Complaint. The Plaintiff did attach a copy ofthe Third Party Beneficiary Contact (Joint CheckAgreement), as an exhibit to the Complaint. It is this document upon which the cause of action is premised. The ancillary documents, such as invoices, purchase orders, quotations and so forth are more appropriately obtained by the Defendants through in the discovery process. WHEREFORE, Plaintiff respectfully requests the Honorable Court to deny the Defendant's request for a more specific Complaint pursuant to Pa. R.C.P. 1028(a)(2). -4- ~w Respectfully Submitted, HANDLER, HENNING & ROSENBERG Date: ~" ~ ~ ~ ~ 'mac -~1 By: W. Sco e , Esq LD. N -: 298 1300 Linglestown )boa P.O. Box 1177 Harrisburg, PA 17108-1177 (717) 238-2000 Attorney for Plaintiff -5- PENNSY SUPPLY, INC., Plaintiff v. BARCLAY WHITE SKANSKA, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4277 CIVIL ACTION -LAW CERTIFICATE OF SERVICE On the ~ day of .~` 2001, I hereby certify that a true and correct copy of Plaintiffs Reply to Defendant's Preliminary Objections was served upon the following persons(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class postage prepaid as follows: Edward Seglias, Esquire COHEN, SEGLIAS, PALLAS & GREENHAL, P.C. P.O. Box 59449 1515 Market Street, 11th Floor Philadelphia, PA 19102 HANDLER, HENNING & ROSENBERG By: Date: ~ ~~dl - • ~ ~--~, Supreme C urt P.O. Box 1177 Harrisburg, PA 171 (717)238-2000 Attorneys for Plaintiff C~ o 7 r,,,a- -_-' "EJ LCj i', ~': Z7.i. .. ~ .~ -. r ..~ ~~ _ ~'C7 .~" ~-~G~ ZC~ ~ ~ Jrn ~- '~ ~ ' i :Zl •C --C t 1 COHEN, SEGLIAS, PALLAS & GREENHALL, P.C. By: Edward Seglias PA ID No. 55103 By: Rene David Quinlan PA ID No. 73134 By: Carter N. Williamson PA ID No. 77599 1515 Market Street, Eleventh Floor Philadelphia, PA 19102 (215)564-1700 Attorneys for Defendant Barclay White Skanska Inc. PENNSY SUPPLY, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff, PENNSYLVANIA v. NO. 01-4277 CIVIL TERM BARCLAY WHITE SKANSKA INC. CIVIL ACTION -LAW Defendant. PRAECIPE FOR ARGUMENT To the Prothonotary: Kindly place Barclay White Skanska Inc.'s Preliminary Objections on the argument Iist. Respectfully submitted, COHEN, SEGLIAS, PALLAS & GREENHALL, P.C. Edward Seglias Rene David Quinlan Carter W. Williamson Attorneys for Defendant Barclay White Skanska Inc. Dated: October 2, 2001 E:\R D Q\Barclay White 6747\Pennsy 059\Praceipe for Argument (P.O.).wpd J CJ f_T7 r1 ~ "-- ~ . ) -p ` _ r"? i i ~ (-I'. ~~1 .. ,- r C_ ., ~~; ,~, _ li- -~ _ ~" _:. tip. m. ~`-i~... J ~` ~~ / H r,•iF49.;~RR~4k~#'Tn~4 w~gyxnf "t ±'~:st ,..+.:a..afi~-+k: :tN'811~9 Y. .iajA[''~~V~d,'3r'~. s_ `A CERTIFICATE OF SERVICE I hereby certify that a copy of Barclay White Skanska Inc. 's Praecipe, for Argument was served on the 2nd day of October, 2001, by overnight mail, postage prepaid, upon the following: W. Scott Henning, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road Harrisburg, PA 17110 (Attorneys for Plaintiff, Pennsy Supply, Inc.) Rene David Quinlan r., ~-~ c_ -_ _~.._ Par-- _~ :`~ - 'i= --: ~. .... ._ _~. '' `' ==' - c' - `"' __ ,. ~; -, PENNSY SUPPLY, INC., Plaintiff v. BARCLAY WHITE SKANSKA, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. OI-- 'x/02'77 1..~u~ ~ , CIVIL ACTION -LAW JURY TRIAL DEMANDED 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 the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 Telephone 717-249-3166 or 800-990-9108 HANDLER, yENNI By ~-`~ W. Scott Hen ing, sq. I.D. #3229 1300 Lingl sto R c Harrisburg, PA 1 110 (717) 238-2000 Attorney for Plaintiff PENN5Y SUPPLY, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. BARCLAY WHITE SKANSKA, INC. NO. D l - Y-Z 7 7 (..~ ~ Defendant CIVIL ACTION -LAW COMPLAINT AND NOW, comes the Plaintiff, Pennsy Supply, Inc., by and through its attorneys, HANDLER, HENNING & ROSENBERG, by W. Scott Henning, Esquire, and makes the within Complaint against Defendant, Barclay White Skanska, Inc., as follows: 1. Plaintiff; Pennsy Supply Inc. (hereinafter referred to as "Pennsy"), is a Pennsylvania corporation qualified to do business in the Commonwealth of Pennsylvania, having its principal place of business located at 1001 Paxton Street, P.O. Box 3331, Harrisburg, Dauphin County, Pennsylvania, 17105. 2. Defendant, Barclay White Skanska, Inc. (hereinafter referred to as "Barclay"), is a Pennsylvania corporation, having its principal place ofbusiness located at 4999 Louise Drive, Suite 201, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 3. At all times material hereto, Pennsy was a corporation engaged in the business of selling and supplying construction materials including, but not limited to, stone, asphalt and other materials related to paving of roadways and driveways. 4. At all times material hereto, Bazclay was a corporation engaged as a general contractor on a construction project known as the "Pinnacle Health Project". 5. At all times material hereto, Barclay had engaged and entered into a subcontract with Bryan A. Ziegler Excavating & Paving, Inc. (hereinafter referred to as "Ziegler") to perform excavating and paving services at the aforesaid project. 6. At all times material hereto, Barclay had knowledge that Ziegler subcontracted with Plaintiff Pennsy to acquire the materials necessary for Ziegler to perform its excavation and paving job under the terms of the subcontract between Ziegler and Barclay. 7. On or about October 11,1999, by and through its authorized representative, Michael J. Kosoff, Vice President of Barclay, entered into an agreement with Ziegler by and through its controller, Sandra K. Kreiser, whereby Barclay agreed to issue joint checks to Ziegler and Pennsy in an amount not to exceed the sum of $275,000.00. A copy of the Joint Check Agreement is attached hereto and incorporated herein as Exhibit "A". 8. The Joint Check Agreement was executed between Barclay and Ziegler by and through their authorized representatives, with the express intention of benefitting Pennsy, such that Pennsy would be assured of receiving payment for the materials supplied by Pennsy to Ziegler. 9. The aforesaid Joint Check Agreement was a requirement made by Pennsy as a condition of selling and suppling goods and materials to Ziegler for the Pinnacle Health project. 10. In executing the Joint Check Agreement, Bazclay and Ziegler intended to modify the standard payment provision ofthe parties' contractual dealings whereby Barclay would pay Ziegler -2- and then Ziegler would in turn pay Pennsy. The Joint Check Agreement created an obligation on the part of Barclay to issue checks jointly payable to Ziegler and Pennsy. 11. Plaintiff, Pennsy, supplied materials to the Pinnacle Health Systems project in reliance upon the Joint Check Agreement. The materials sold and tendered by Pennsy to the Pinnacle Health Systems project in reliance upon the Joint Check Agreement have a total invoice value in the sum of $149,141.56. 12. Barclay failed to fulfill its obligations under the Joint Check Agreement by failing to issue joint checks, but instead issued checks payable solely to Ziegler. 13. As a result, the sum of $149,141.56 remains due and owing to Pennsy Supply, Inc. for materials supplied to the Pinnacle Health Systems. 14. Although Plaintiff has made due demand for payment of the aforesaid balance upon Barclay White, said Defendant has failed and refused to tender payment to Pennsy Supply, Inc. WHEREFORE, Plaintiff demands Judgment against the Defendant in the amount of $149,141.56, plus interest accruing from May 28, 2001 and the costs of suit. Respectfully Submitted, HANDLER, HENNING & ROSENBERG Date: ~ ~ ~ -~z0a/ By: W. Scott Henni g, Es rre I.D. No. 32298 1300 Linglestown Road P.O. Box 1177 Harrisburg, PA 17108- 177 (717)238-2000 Attorney for Plaintiff -3- VERIFICATION The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the document are that of counsel, I have relied upon my counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: ~ ° ~" b i 10/18/9P 15:05 FA% 7178x89811 BRYAN A ZIEGLER r~IDi ACT 121999 Bryan A. Ziegler Excavating & Paving, Inc. R.R. #9, Bax 362 • Palmyra, PA 17078-9791 Octobedb'I i~®f~8-5843 . 1-800-734-7779 Fax: (717) 63$-9811 Michael Stefanie Barofay White Incorporated 4999 Louise Drive, Suite 201 Mechanicsburg, PA 17055 RE: Pinnacle West Shore Qear Mike: Thy letter serves as notice that you are au(ttarized and requested to pay Penney Supply Co, Inc by joint check from any fund due Bryan A Ziegler Excavating ~ Paving, Inc for paving subcontracting by Penney Supply Co, Inc for the above jolt, as is specifically approved and submitted to your offrce_ This amount should not exceed $275,000 for the above project. Barclay tNhite Incorporated should be notified in writing of any increases or decreases to this original amount. Any joint checks so drawn will be endorsed first by Bryan A Ziegler Excavalbing ~ Paving, Inc at Barclay Wlirbe Incorporated's Corporate Ofrice and ttien fonroarded by Barclay White Incorporated to: Penney Supply Co, Inc. Bryan A Ziegler Excavating & Paving, Inc agrees that the sole purpose of this document is to authorise Barclay White Incarporabsd to issue a joint check when requested by the subcontractor, Bryan A Ziegler Excavating & Paving, Inc. If this arrangement meets your approval, please sign below and return one (1) copy. Sincerely, ~}+®`D4 Sandra K Kreiser Controller Approved by Barclay White Incorporated: (s gnature) TEAMWORK Together We Achieve The Extraordinary #32 PENNSY SUPPLY, INC. V. BARCLAY WHITE SKANSKA, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0.2001-4277 CIVIL TERM IN RE: BARCLAY WHITE SKANSKA, INC.'S PRELIMINARY OBJECTIONS BEFORE BAYLEY, HESS, GUIDO, JJ. ORDER OF COURT AND NOW, this 30TH day of OCTOBER, 2001, defendant's Preliminary Objections are SUSTAINED on the limited basis that plaintiff has failed to plead the performance of a required condition precedent. Plaintiff is given twenty (20) days to amend its complaint. W. Scott Henning, Esquire Edward Seglias, Esquire Rene David Quinlan, Esquire Carter Williamson, Esquire ~,U b ~2~ ~\ :sld PENNSY SUPPLY, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 01-4277 Civil Term BARCLAY WHITE SKANSICP,, INC Defendant CIVIL ACTION -LAW 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 the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 Telephone 717-249-3166 or 800-990-9108 HANDLER, HENNING & ROSENBERG By v W. Scott ennin I.D. #3 98 1300 ngles wn I Harrisb , PA 17 (717) 238-2000 Attorney for Plainti~ PENNSY SUPPLY, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 01-4277 Civil Term BARCLAY WHITE SKANSKA, INC. Defendant CIVIL ACTION -LAW AMENDED COMPLAINT AND NOW, comes the Plaintiff, Pennsy Supply, Inc., by and through its attorneys, HANDLER, HENNING & ROSENBERG, by W. Scott Henning, Esquire, and makes the within Amended Complaint against Defendant, Barclay White Skanska, Inc., as follows: Plaintiff, Pennsy Supply Ina (hereinafter referred to as "Pennsy"), is a Pennsylvania corporation qualified to do business in the Commonwealth of Pennsylvania, having its principal place of business located at 1001 Paxton Street, P.O. Box 3331, Harrisburg, Dauphin County, Pennsylvania, 17105. 2. Defendant, Barclay White Skanska, Inc. (hereinafter referred to as "Barclay"), is a Pennsylvania corporation, having its principal place of business located at 4999 Louise Drive, Suite 201, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 3. At all times material hereto, Pennsy was a corporation engaged in the business of selling and supplying construction materials including, but not limited to, stone, asphalt and other materials related to paving of roadways and driveways. 4. At all times material hereto, Barclay was a corporation engaged as a general contractor on a construction project known as the "Pinnacle Health Project". 5. At all times material hereto, Barclay had engaged and entered into a subcontract with Bryan A. Ziegler Excavating & Paving, Inc. (hereinafter referred to as "Ziegler") to perform excavating and paving services at the aforesaid project. 6. At all times material hereto, Barclay had knowledge that Ziegler subcontracted with Plaintiff Pennsy to acquire the materials necessary for Ziegler to perform its excavation and paving job under the terms of the subcontract between Ziegler and Barclay. 7. On or about October 11,1999, by and through its authorized representative, Michael J. Kosoff, Vice President of Barclay, entered into an agreement with Ziegler by and through its controller, Sandra K. Kreiser, whereby Barclay agreed to issue joint checks to Ziegler and Pennsy in an amount not to exceed the sum of $275,000.00. A copy of the Joint Check Agreement is attached hereto axed incorporated herein as Exhibit "A". 8. The Joint Check Agreement was executed between Barclay and Ziegler by and through their authorized representatives, with the express intention of benefitting Pennsy, such that Pennsy would be assured of receiving payment for the materials supplied by Pennsy to Ziegler. 9. The aforesaid Joint Check Agreement was a requirement made by Pennsy as a condition of selling and suppling goods and materials to Ziegler for the Pinnacle Health project. 10. In executing the Joint Check Agreement, Barclay and Ziegler intended to modify the standard payment provision of the parties' contractual dealings whereby Barclay would pay Ziegler -2- and then Ziegler would in turn pay Pennsy. The Joint Check Agreement created an obligation on the part of Barclay to issue checks jointly payable to Ziegler and Pennsy. 11. Plaintiff, Pennsy, supplied materials to the Pinnacle Health Systems project in reliance upon the Joint Check Agreement. The materials sold and tendered by Pennsy to the Pinnacle Health Systems project in reliance upon the Joint Check Agreement have a total invoice value in the sum of $149,141.56. 12. Plaintiff, Pennsy, believes and therefore avers that Ziegler made the appropriate requests upon Barclay to issue payments in the form of a joint check, however, Barclay failed and/or refused to do so. 13. Barclay failed to fulfill its obligations under the Joint Check Agreement by failing to issue joint checks, but instead issued checks payable solely to Ziegler. 14. As a result, the sum of $149,141.56 remains due and owing to Pennsy Supply, Inc. for materials supplied to the Pinnacle Health Systems. 15. Although Plaintiff has made due demand for payment of the aforesaid balance upon Barclay White, said Defendant has failed and refused to tender payment to Pennsy Supply, Inc. -3- WHEREFORE, Plaintiff demands Judgment against the Defendant in the amount of $149,141.56, plus interest accruing from May 28, 2001 and the costs of suit. Respectfully Submitted, HANDLER, HENNING & ROSENBERG Date: ~ / ` IG ~ ~ w ( By: W. Scott He rng, squire I.D. No. 322 8 1300 Linglestown Roa P.O. Box 1177 Harrisburg, PA 1 8-1177 (717) 238-2000 Attorney for Plaintiff -4- '10/18/i~0 15:05 FA% 717" "811 BRYAN A ZIEGLER r~j01 :ACT 1 ~ 1999 Bryan A. Ziegler Excavating ~ Paving, Inc. R.R. #3, Box 362 • Palmyra, PA 17078-9731 Octobe~)1~g08~843 • 1-B00-734-7779 Fax: (717) 838-9811 Michael Stefanie Barclay White Incorporated 4999 Louise Drnre, Suite 201 Mechanicsburg, PA 17055 RE: Pinnacle West Shore Dear Mike: This letter serves as notice that you are authorized and requested to pay Pennsy Supply Co, Inc by joint check from any fund due Bryan A Ziegler Excavating S Paving, Inc for paving subcontracting by Pennsy Supply Co, Inc for the above job, as is spec~cally approved and submitted to your offrce. This amount should not exceed 5275,000 for the above project. Barclay VYhite Incorporated ahould be notified in writing of any increases os decreases to this original amount. Any joint checks so drawn will be endorsed first by Bryan A Ziegler Excavating 8 Paving, Inc at Barcay Wlirfe Incorparated's Corporate Office and then forwarded by Barclay White Incorporated to: Pennsy Supply Go, inc. Bryan A Ziegler Excavating 8, Paving, Inc agrees that the sole purpose of this document is to authorize Barclay White Incorporated to issue a joint check when requested by the subcontractor, Bryan A Ziegler Excavating 8, Paving, Inc. If this arcangement meets your approval, please sign below and return one (1} copy. Sin~cefre~ly,~ Sandra K Kreiser Controller Approved by Barclay White Incorporated: (s gnature) PtAME: M.ILk{AEL~~p>r>/ TITLE: tl,~. DATE o i TEAMWORK Together We Achieve The Extraordinary VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 Ic) W. SCOTT HENNING, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents is outside the jurisdiction of the Court and the Verification of the party cannot be obtained within the time allowed for filing this Pleading; the averments set forth herein are based upon information provided by the Plaintiffs; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. Date: /I ~ __a 6 ~ ~- ~~„,_. ~~~_ _ ~ _ u.~._ CERT/F/GATE OF SERV/CE I hereby certify that a true and correct copy of the foregoing Plaintiff's Amended Complaint with New Matter was served on this 5th day of November, 2001, by First Class U.S. Mail, certified mail, return receipt requested, upon the following: Rene David Quinlan, Esquire Cohen, Seglias, Pallas & Greenhall, P.C. P.O. Box 59449 1515 Market Street, 11th Floor Philadelphia, PA 19102 HANDLER, HENNING & ROSENBERG "~ Date: November ~, 2001 COHEN, SEGLIAS, PALLAS & GREENHALL, P.C. Edward Seglias, PA ID No. 55103 Rene David Quinlan, PA ID No. 73134 1515 Market Street, Eleventh Floor Philadelphia, PA 19102 (215) 564-1700 (Attorneys for Barclay White Skanska Inc.) PENNSY SUPPLY, INC., Plaintiff, To: Pennsv SunDdv You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. COHEN, SEGLIAS, PALLAS & GREENFIALL, P.C. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. BARCLAY WHITE SKANSKA INC., Defendant. NO. 01-4277 CIVIL TERM CIVIL ACTION -LAW ANSWER AND NEW MATTER Defendant, Barclay White Skanska Inc. (`Barclay White"), by and through its attorneys, Cohen, Seglias, Pallas & Greenhall, P.C., files the withinAnswer andNew Matterto the Amended Complaint, stating as follows: ANSWER Denied Aftermasonableinvestigation,BarclayWhiteiswithoutknowledgeorinfomiation sufficient to form a belief as to the truth of the averments of paragraph 1. 2. Admitted inpart and denied in part. It is admitted that Barclay White is aPennsylvania corporation. It is deniedthatBarclay White's principalplace ofbusiness is located at 4999 LouiseDrive, Mechanicsburg, Pennsylvania. To the contrary, Barclay White's principalplace ofbusiness is located at 518 Township Line Road, Suite 100, B1ueBell, Pennsylvania,19422. Bywayoffurtherresponse,Barclay White maintains offices at 4999 Louise Drive, Mechanicsburg, Pennsylvania. Admitted in part and denied inpart. It is admitted that Pennsy sells stone and asphalt that is utilized in the construction ofroads and driveways. Thebalance ofthe averments ofparagraph 3 are denied for the reason that, after reasonable investigation, Barclay White is without knowledge or information sufficient to form a belief as to the truth of said averments. 4. Denied. It is denied that Barclay White Skanska Inc. was the general contractor for the "Pinnacle Health Proj ect." To the contrary, Barclay White, Incorporated, was the contractor for the Pinnacle Outpatient Health Center Project ("Project"). 5. Denied.ItisdeniedthatBarclayWhiteSkanskaInc.enteredintoanagreementwithBryan A. ZieglerExcavating &Paving, Inc. ("Ziegler") to perform "excavating andpaving services." To the contrary, Barclay White, Incorporated, entered into an Agreement with Ziegler for to furnish all labor, material, equipment, and supervision necessary to perform the sitework at the Project. 6. Admitted in part and denied in part. It is admitted that Barclay White was aware that Ziegler was receiving certain materials from Pennsythat were to be utilized at the Project. It is denied that Barclay White knew that Ziegler subcontracted with Pennsy. To the contrary, after reasonable investigation, Barclay White is without knowledge or information sufficient to form abelief as to the truth of the averment that Pennsy and Ziegler are parties to a subcontract, said information being in the possession of persons and entities other than Barclay White. The averments ofparagraph 7 are legal conclusions forwhich no response is required. To the extent that a response is deemed to be required, the averments ofparagraph 7 are admitted in part and deniedmpart. It isadmittedthat a letter from SandraK. Kreiser ofZieglerto Michael Stefanic ofBarclay White, Incorporated, is attached to the Complaint as Exhibit "A." It is admitted that Ms. Kreiser is identified onthe letter as "Controller." It is admitted thatthe signature ofMichael J. Kosoffof Barclay White, Incorporated, appears on the letter. It is denied that Barclay White entered into an agreement with Ziegler "to issue joint checks to Ziegler and Pennsyin an amount not to exceed the sum of $275,000: ' To the contrary, as a writing, the letter speaks for itself. 8. The averments of paragraph 8 are legal conclusions for which no response is required. 9. Denied. Afterreasonable investigation, Barclay White is withoutknowledge orinformation sufficient to form a belief as to the truth of the averments of paragraph 9. 10. The averments of paragraph 8 are legal conclusions for which no response is required. 11. TheauermentthatPennsySupplysuppliedmaterialsinrelianceuponthepurportedJoint Check Agreement is a legal conclusion for which no response is required. To the extent a response is deemed to be required, the averment is denied for the reason that, after reasonable investigation, Barclay White is without knowledge or information sufficient to form abeliefas to the truth of said averment. After reasonable investigation, Barclay White is without knowledge or information sufficient to form abelief as to the truth ofthe averment that the materials purportedly supplied byPennsy Supplyhave a total invoice value of $149,141.56. 12. Denied. It is denied that "Zieglermade the appropriate requests upon Barclay [White] to issue payments in the form of a j oint checks ... " To the contrary, Ziegler did not make anyrequests upon Barclay White to issue joint checks. It is denied that Barclay White failed or refitsed to issue joint checks. To the contrary, Barclay White was not obligated to issue j oint checks. Further to the contrary, Ziegler did not make any requests upon Barclay White to issue joint checks. 13. The averments of paragraph 13 are legal conclusions for which no response is required. To the extent that a response is deemed to be required, the averments are admitted in part and denied in part. It is admitted thatBarclayWhitemadepaymentstoZieglerinaccordancewiththeiragreement. The balance ofthe averments ofpazagraph 13 aze denied forthe reasonthatBazclay White was not obligated to issue joint checks. 14. Denied. Afterreasonableinvestigation,BarclayWhiteiswithoutknowledgeorinformation sufficient to form a belief as to the truth of the averments of paragraph 14. 15. Admittedinpartanddeniedinpart.ItisadmittedthatPennsySupplydemandedpayment, andthatBarclay Whiterefused to tenderpayment. It is deniedthat anyamount is due andowing to Pennsy SupplyfromBarclayWhite. To the contrary,BazclayWhitedoesnothaveanyobligationtomakepayment to Pennsy Supply, and no amount is due and owing from Barclay White to Pennsy Supply. WHEREFORE, Defendant, Barclay White Skanska Inc., demands judgment in its favor and against Plaintiff, Pennsy Supply, Inc., together with costs of suit. NEW MATTER By way of New Matter, Barclay White asserts the following: 16. Pennsy Supply has failed to state claims upon which relief can be granted. 17. PennsySupply'scausesofactionazebarredbecauseithasfailedtojoinanecessaryand indispensable parry to this action, Ziegler. 18. Without admitting the existence, legality, and enforceability ofthe purported Joint Check Agreement, and specifically denying any and all liability thereunder, Pennsy Supply's causes of action aze barred because it has failed to satisfy conditions precedent: A. Zieglerdidnot specifically approve and submit to Barclay White anypurported joint check requests; and 4 B. Ziegler did not request that Barclay White issue any joint checks. 19. Pennsy Supply's causes of action are barred because the purported Joint Check Agreement fails for lack of consideration. 20. Pennsy Supply's causes of action are barredbythe doctrine ofwaiver, because Pennsy SupplyreceivedpaymentsdirectlyfromZiegler, andvoluntarilyandintentionallyrelinquishedanyrightsthat it purports to have, or have had, with respect to Barclay White under the alleged Joint Check Agreement. 21. PennsySupply'scausesofactionareban•edbythedoctrineofestoppel,becausePennsy Supplyreceived payments directly from Ziegler, and failedto request anyjointpayments from Barclay White under the alleged Joint Check Agreement. 22. PennsySupply'scausesofactionarebarredbythedoctrineofpayment,becausePennsy Supply received payment from Ziegler for the materials it allegedly supplied. 23. PennsySupply'sallegeddamages,ifany,arethedirectandproximateresultofitsown action or inaction. WHEREFORE, Defendant, Barclay White Skanska Inc., demands judgment in its favor and against Plaintiff, Pennsy Supply, Inc., together with costs of suit. Respectfully submitted, COHEN, SEGLIAS, PALLAS & GREENHALL, P.C. By: Edward Seglias Rene Dauid Quinlan Dated: December 17, 2001 (Attorneys for Barclay White Skanska Inc.) F:~R D Q~Barclay White 6747~Pennsy 059Wnswer and New Matter.wpd I, SteveWeau~,beingdutYBUthorizadae aVioel~Sidento~arciaYWhito SksnskaTnc.,have readthefozagoirtg,4nswerand'N'ewMatter, andvea-fytbattbefscctualstatemeutscoataiaodthereiame truasndcarrectto thebestofmyknowledge, inforntation, andbelief. Iimderetamdibattbis Verification ismade subjoctto thepenaltiesof 18I+e.C_S.t#. § 494,relatiagtou~swomfalsifioatieuto authoriiiee, which prorndes that T may be subj ect to ociminal petialtios if 1 m akc awritten £elae statement that T do not believe to be trua. T)ated• ~.~ . / ? Zoo ( ~~~ VIJi~/I stave warner CERTIFICATE OF SERVICE Iherebycertifythat atnxeand correct copyofDefendant, Barclay White SkanskaInc.'sAnswer and New Matter was served on the 17`h day of December, 2001, by Overnight Mail, postage prepaid, upon the following: W. Scott Henning, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road Harrisburg, PA 17110 (Attorneys for Plaintiff, Pennsy Supply, Inc.) Rene David Quinlan •+'y~n..~. avw C ~ E' ~. hrs. ~ - ; --' ~'~ i\! - GJ __ _ fi r ~' c N ~; c- ~' c,> _n PENNSY SUPPLY, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 01-4277 Civil Term BARCLAY WHITE SKANSKA, INC Defendant CIVIL ACTION -LAW PLAINTIFF'S REPLY TO NEW MATTER AND NOW, comes the Plaintiff, Pennsy Supply, Inc., by and through its attorneys, HANDLER, HENNING & ROSENBERG, by W. Scott Henning, Esquire, and makes the within Reply to New Matter, as follows: 16. Denied. The allegation set forth in Paragraph 16 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that Plaintiff Pennsy Supply has failed to state a claim upon which relief can be granted and proof to the contrary is demanded at the trial in this matter. 17. Denied. The allegation set forth in Paragraph 17 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that PiaintifPs cause of action should be barred because Plaintiff has failed to join a necessary and indispensable party to the action, namely Bryan A. Ziegler Excavating & Paving, Inc. Plaintiff asserts that it has set forth a cause of action against the Defendant that is separate and distinct from any cause of action that Plaintiff may have against Ziegler and that Ziegler is not a necessary and indispensable party. 18. Denied. It is denied that Ziegler did not specifically approve and/or submit to Defendant Barclay billing statements coupled with requests for the issuance of a joint check. Plaintiff believes and therefore avers that Ziegler did submit and make it clear to Defendant Barclay that certain billing statements were to be paid in the form of a joint check. 19. Denied. The allegation set forth in Paragraph 19 is a conclusion of law to which no responsive pleading is required, however, to the extent thatthe Honorable Court deems a response necessary, it is denied that Plaintiffs cause of action is barred because the purported Joint Check Agreement fans for lack of consideration. To the contrary, the Plaintiff tendered materials and labor to the Defendant's project based upon justifiable reliance on the Joint Check Agreement, and proof to the contrary is demanded at the trial in this matter. Z0. Denied. The allegation set forth in Paragraph 20 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that Plaintiffs cause of action should be barred by the Doctrine of Waiver by the mere fact that Pennsy received payments directly from Ziegler and that certain payments received from Ziegler were not in the form of joint checks, and proof to the contrary is demanded at the trial in this matter. -2- 21. Denied. The allegation set forth in Paragraph 21 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiffs cause of action is barred simply because Plaintiff received payments directly from Ziegler rather than demanding that the payments be in the form of a joint check. Proof that Plaintiff's actions in accepting certain payments directly from Ziegler invokes the Doctrine of Estoppel is demanded at the trial in this matter. 22. Denied. The allegation set forth in Paragraph 22 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that Plaintiffs cause of action is barred by the "Doctrine of Payment", and proof to the contrary is demanded at the trial in this matter. 23. Denied. The allegation set forth in Paragraph 23 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiffs damages were caused by any action or inaction on its part, and proof to the contrary is demanded at the trial in this matter. WHEREFORE, Plaintiff demands Judgment against the Defendant Barclay White Skanska, Inc. for the relief set forth in its Complaint. Date: ~~ Respectfully submitted, W. Scott Hen i , Es ID #32298 1300 Linglest o< Harrisburg, 7110 (717) 238-2000 Attorney for Plaintiff & ROSENBERG -3- VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 Icl W. SCOTT HENNING, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. Date: ~-® a2~J~ W. SCOT E IN ,ESQUIRE PENNSY SUPPLY, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 01-4277 Civil Term BARCLAY WHITE SKANSItA, INC Defendant CIVIL ACTION -LAW CERT/F/GATE OF SERV/CE I hereby certify that a true and correct copy of the foregoing Plaintiff's Answer to New Matter was served on this 7~~day of December, 2001, by First Class U.S. Mail, certified mail, return receipt req ested, upon the following: Rene David Quinlan, Esquire Cohen, Seglias, Pallas & Greenhall, P.C. P.O. Box 59449 1515 Market Street, 11th Floor Philadelphia, PA 19102 Date: Decemberr~2001 HANDLER, HENNING & ROSENBERG C> O r) G. i'J =-~ G -C7 (7J L_ „.~. ._~ /: tV C: 'r-> i L_ •. J ~ ~ x3' `[u ~P ~. pu. .~~{ 4"! y.~. ~At 4) tA) 01 ~~'~ 1 ~Ri' `~.u fix. zm° ArI _ A 7 Hf~lf N ~ yv~ ^'b- -- A P A _` rn ~~; '~ c vpi .:~: Z DA rN ".,.. i Ali _.,. o rm Y N i-r m ~o r 2 .U tl 9 -~ m A ff I ~ 77A ~° ~ C~ ~ 9 a 5 i v, F' ~i fi ~ `~ 1. o L_ 'Q~ r O ~ n C] G ~? ~ w o ye aR r- to (J ~ tr o~~ . W . z ~ ~ C N O c~J+ w ' o .~ ~ ~i~ N ~~` ~.. cn ~? Office of the Prothonotary Cumberland County Curtis R. Long Prothonotary BARCLAY WHITE SKANAKA 4999 LOWE DRIVE SUITE 301 MECHANICSBURG PA 17055 DATE: June 16, 2005 TO: BARCLAY WHITE SKANAI{A THIS IS TO NOTIFY YOU THAT CASE NUMBER 01-4277 CIVIL TERM, PENNSY SUPPLY INC. VS. BARCLAY WHITE SKANSI{A INC. HAS BEEN LISTED FOR ARGUMENT ON JULY 6.2005. Cumberland County Argument Court Rules 1028(c), 1034(a) and 1035.2(a) shall be strictly enforced. If the issue was listed for prior argument you must re-file your brief as per Local Rule 1028(c)10. Curtis R Long Prothonotary PENNSY SUPPLY, INC., Plaintiff v. BARCLAY WHITE SKANSKA, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO.O1-4277 CIVIL TERM IN RE: DEFENDANT'S PETITION FOR RULE TO SHOW CAUSE WHY CASE SHOULD NOT BE TERMINATED BEFORE OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 6`t' day of July, 2005, upon consideration of Defendant's Petition for Rule To Show Cause Why Case Should Not Be Terminated, and neither party having submitted briefs on the matter, and Plaintiff's counsel, W. Scott Henning, Esq., having indicated at argument court that he will be filing a praecipe to discontinue the case, the matter is stricken from the argument court list, without prejudice. BY THE COURT, W. Scott Henning, Esq. 1300 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiff Edward Seglias, Esq. Rene David Quinlan, Esq. 1515 Market Street Suite 1100 Philadelphia, PA 19102 Attorneys for Defendant , ~'e`°t ~ ~ L O a :rc ~Ji~ f ~ '~j ~d ~"" ~vi~lUU4 ~~ ~r~c~~~~u PENNSY SUPPLY, INC. Plaintiff v. BARCLAY WHITE SKANSKA, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4277 CIVIL TERM P1~,4EC/PE TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA: Please mark the above captioned matter settled and discontinued. Date: ~~a ~~ HANDLER HENN,J~G & ROSENBERG, LLP By W. Scott ennii c Attorney I.D. #32298 1300 Linglestown Rod Harrisburg, PA 17110 (717)238-2000 ATTORNEY FOR PLAINTIFF c~ d c, ~~ 4. '_r, C t'~ ~ 2 f -_ - .._.. -a C - v -e J - C _ _ _ . "-~ my ''.- , ~ . J -r - L ~ ..., __= (' lJ ["i J L&~ ~ ~ J ~4 ~~ ~~j J~