The URL can be used to link to this page

Home My WebLink About01-05477 _ __ ~ ~ - , ~- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. J. FISHER & ASSOCIATES, INC., N0. 01-5477 Plaintiff CIVIL ACTION -LAW v. LOCKE PROPERTY COMPANY; INC., Defendant EXHYBITS 1. Engineering Plans for the Golden Triangle project prepared by R. J. Fisher & Associates, Inc. 2. May 1, 2000 proposal executed by William Locke on March 23, 2001 3. Preliminary Project Schedule 4. May 9, 2001 facsimile with Standard Form of Agreement between Owner and Engineer 5. June 8, 2001 letter from Locke to Fisher faxed on June 25, 2001 6. July 12, 2001 letter to Defendant from Plaintiff regarding delinquent balance owed 1 7. Phone records of R. J. Fisher & Associates, Inc. during the period of time that services were being performed 8. All invoices relating to work performed by R. J. Fisher & Associates, Inc. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Dated: Q~~~deY 17. 2cc.9 By: _ ~~ Craig A~iehl, Esquire Attorney ID No. 52801 3464 Trindle Road Camp Hill, PA 17011-4436 (717)763-7613 Counsel for Plaintiff 2 ..+ 6 O1 10:49a Robert J. Fisher 717-774-7190 P~6 _ R. J. Fisher & Associates. Inc. 1546 bridge Street • New Cumberland, PA 17070 717-7747534 • FA:t:717-774-7190 ENGINEERING,PWNNING,SURVEYtNGiIANDSCAPEARCNIiECTURE www.rjfisher.org Ff -Rb May 1, 2000 Mr. William E. Locke Locke Yropcrty Company 4 Running Ridge Road Manchester-By-The-Sea, MA 01944 Re: Professional Design Services for the Golden Triangle Project Silver Spring Township, Ctunbrrland County, Pa. Dear Mr. Lucke, We are delighted tv provide this proposal to yott for professional engineering and planning services relative to the Goldcu Triangle project in Silver Spring Township, Cumberland County, Ycnnsylvania. (hu services will include, updating the land development and subdivision plan fora 400,000 sq. ft. warehouse as required in the June 8~' 1994 settlement agreement, coordination and assistance to HRG regarding the FEM.k, flood plain boundary, consultations and coordination regard'mg the Jimmy George tract . for utility connections and preparation of an overall subdivision plan to subdivide the warehouse tract from other lands of Triple Crown Corpvratiun anti provide for public access roads and utilities to the tract. As we discussed the total scope ofthis prvject is hard to define due to the complexities of the settlerneat agreement, the FEMA issues and other agreements needed for the utility service. R.J. Fisher ~ Associates, inc. is proud of our reputation of ptovidiug responsive professional services !or a wide variety oPsuccessful clients. We take special pride in our design team expenise of land planning, site design, construction, and landscape architecture can create very attractive and yet alTordable project. A. SERVICES TO BE PRUVIllEll SIJBDIV1SiUN PLAN • Yreparc a Subdivision to separate the warehouse tract from other lands vfTriple Crown Corporation. • Prepare street and utility plans oral grofilcs. • Yrcparc grading plans for streets and stormwater management facilities. • Prepare starrrrwater deign and management calculations and report. • Coordinate with HRG ou !''loud Plain revisions and assise with exhibits. • Client consultations and meetings on site design issues. • Submission of Subdivision Plan to the Mturicip<-t]ity. • Presentations at municipal meetings to address comments. Jun 06 O1 1O:49a Robert J. Fisher 717-774-7190 ~. ~`, LAND DEVF..I.OPMENI' • Prepare a Land Development Plan fora 400,000 sq. ft. warehouse generally following the prior plea referenced in the June 8t6 settlement agreement. • Prepare updated site grading plan for building, parking' and stormwater management facilities. • Prepare plans and profiles for on-site utilities. • Prcparc stormwater design and tnanagetnent calculation and report. • Client consriltations and meetings on site design. • Submission of Land Developrnern Plan to the Municipality. • Presentations at municipal meetings to address comments. B. COMPENSATION The following are our estimated tee for performing the above services. 8illiag will be 14i- weekly based oathe services completed as of the date of the invoice. AJi fives will be valid for services authorized and paid for in 2000. Cosrts for all submission, review fccsy prints, Mylar's and other expenses will be paid for by the client and are not included in the fees for professional services, Other services requested which are not included in tlhe above items will be reimbursed on as hourly basis in accordance with the fee schedule ;.,, listed below. A retainer in the atnouttt of $ 3,000.00 will be due upon execution of this ~:;, proposal. The retainer shall be applied to the final utvoice for services oa this project. Estimated Fee SUBDIVISION PLAN $15,000.00 LAND DEVELOPMENT PLAN $ 20,000.00 FF,F. SCtiEt)ULE t;n}nixar Vlll $95.00/Eiour Engineer VII $80.OOhlour Engineer VI $75.00/Hour Engineer V $60.00/Hour Engincer IV $50.00/Hour Engineer III $45.00/Elour Engineer I[ $35.00/Hour Engineer) $30.00/Hour Landscape Arch VI $70.00/Hour Landscape Arch V $60.00/Hour l.andscgpe Arch IV $55.00/IIour Landscape Arch III 550.00lHour Landscape Arch. II $45.00/Hour p.7 CAD Designer VI CAD Designer V CAD Designer IV CAD Designer III -___ -- CAD Designer II CAD Designer I Survey Crew (2 persons) Survey Crew (3 persons) $60.00lHour $50.00/Hour $45.00/I-lour $40.00/Hour__ $35,00/Hour $30.00lHour $100.00/llour $150.OO/I-lout C. Client shall provide all criteria and full information as to the clients requirements for the project; designate a person to act with authority on clients behalf in respect to all aspects of the project; examine and respond promptly to consultants submissions; and give prompt written notice to consultant whenever he observes or otherwise becomes aware of any defect in the work. D. Liability of the consultant for a~ service performed under this contract shall be limited to the amount of the fee charge. E. The provisions of the attached Exhibit i aze incorporated hereunto and made a part of this agreement. If this proposal is acceptable, please sign the enclosed copy of this letter and return it to us. Thank you for the opportunity to serve you. ' c ely, Robert J. Fisher, PLS., PE. President Accepted this ~'~ day of ~~*4 , 2000. z ~~ ~ ~+~E Prwwt-tti cb..,~a++~t , ,a+~z.. Title: ~"u' pe.--t -~ g~ tz~t~~acEm srt~..a~. ~j~(,w. IkSC.E/ Co NtKAGT WC.Y N.f.A~T~ ~~, Jun 06 O1 10:49a Robert J. Fisher 717-774-7190 p.9 ~.,-~ CONTRACT BETWEEN ~' LOCKS PROPERTY COMPANY and R.J. FISEIER & ASSOCIATES, INC. STANDARD PROVISIONS OF CONTRACT FOR PROFESSIONAL SERVICES The clirnrand consultant agree that the folloaving provisions shall be part oftheir egreentent: I. Consultant shall not fx: liable for damage r4RUlting from the actions or inactions of governmental agencies, and consultant shall only ad as an adviser in all governmrntsl relations. 2. All fees and other charges will be billed by weekly and shall be duo at the time of billing unl~yx utherwixc specified in [his a6RCement. The fee schedule included, as pan ofthe agreement shall be adjusted annually. 3. A latNpaymcnt PENALTY ofanc and ono-halt'pcr cent per month, which is an annual rate ofeighT~rt pw certt (1'8%), shall be applied to any unpaid balaacc, commencing thirty (30) days after the date of the original invo"tee. d, In the event that any staking is destroyed by an act of God or parties other than catsultant, the cat of restaking shall be paid by client as extra work, provided such work is authorized Iry client. 5. The clirnt shall pay the cats of checking and inspection fees, goverttmetttal fees, soil-testing fees, aerial phaography fees, title-company charges, blueprints and reproductions, and all other charges na "~ specifically covered by the terms of this agreement. ~~ Any toes or coats paid by the consultant on behalf ofthe client shall be subjeu to a 10°/. handling fee, 6. !n the event all or any portion of the work prepared err partially Prepared by the consultam be saapcndcd, abandoned terminated, the client shall pay the consultant For all fees, charges, and services provided Ca the project, not to exceed any contract limit specified herein. 7. In the event of litigation, client agrees to pay to consultant intermit on all past due balances at the rate of 18% per armtao w the rate 2°iG per annum over the interest costs actually incurred by cwttndtant due to such client default whichever is more. 8. In the event client fails to pay consultant within thitiy (30) days after invoices are rendered, cliutt agree that consultant shall have the right to consider said default a total breach of this agretanent and, upon wrten notice, the duties, obligations, and responsibilities of the consultant under this agreement are then terminated. 9. In the event that client institutes a suit against consultant because of any failure or an alleged fiilure to `~J~. perform, error, omission or negligence, and if such suit is not successfully prosecuted, client agrees to .>ay consultant any and all costs of defense. <,- lU. All original papers artd documents, and copies thereof; produced as a result of this contract, except doctuttcnts which are required to be filed with public agencies, shall rcmaitt the property of the consullnrtt and maybe used by consultant without the consent of client. They are not intrnded or represented to Ue suitable for reuse by the clirnt or others on utcnsions of the project w on arty other project. My reuse without written verification w adaptation by the consultant for the specified purposes intended will be u the clirnt sole rink and without liability or Icgal cxposttrc to the consultant; and client shall indemnify and hold harmless consultant from all olaims damages, losses and exp®scs including attomcys fixs arising out of or resulting there from. My such verification or adaptation will entitle consultant to further 'J compensation at rates to be agreed upon by client and consultant. Golden Triangle Warehouse Locke Property Comuany Preliminary Project Schedule February 2001 RJF&A Receive authorization to proceed, deposit and signed agreemem. Resolve issues on Jimmy George, Traffic engineering, Flood Plain engineering etc. so we know how to proceed with subdivision and land development plans. April 12, 2001 Submission of Preliminary Subdivision & Land Development Plan Apri126, 2001 Workshop meeting with staff May 3, 2001 Planning Commission meeting tabled May 22, 2001 Revise plans and resubmit June 7, 2001 Planning Commission meeting recommendation for approval Tune 13, 2001 Board of Supervisors BOS workshop meeting review June 27, 2001 BOS contingent approval of Preliminary Subdivision & Land Development Plan assuming FEMA letter of map revision, Pa DOT permit issues & other legal matters are resolved or allowed to be deferred to final approval. July 12, 2001 Submission of Final Subdivision & Land Development Plan July 26, 2001 Workshop meeting with staff August 2, 2001 PC Meeting ffFEMA, PaDOT & legal issues are resolved receives recommendation for approval at this meeting. August 8, 2001 BOS workshop meeting August 22.2001 BOS plan approval September 2001 Post securities and proceed with construction if PaDOT, FEMA & legal issues are resolved. 05109!2001 23:22 9785268754 L~ftE PR~'ERTY PAGE 01 (,i1 L4CKE FROPERTY COMPANY 46 Central Street Manchester-By-The-Sea, MA 01944 (978} 526-8840 FAX (978) 526-8754 Date: Jet ~ ~ ee r Company: ~ Fsttc~ idscekrt~t Fax No: '~ t~ j ~~ 4 -,tso From: William E. Locke, Jr. Number of pages (including cover page): Comments: "gob - '+_" st:~r•ted .~t,,.c .,...~ua~F F6.-ttw. fi•; autf~. hrE ~~ lort..- eJt ®E '{+~c ~~ECt~ +_ ,n~,y scsis~..`t ~6 ,t,~ el~ te.n ~E6ci v.a•EK.6'bc.'Tial-~ •~FC~.-e/r~ o~autoJS(t.~. y w av.~ kK v. .t.~ ~M '~-L ~~{-- o P '~f- w fit- . ~- J l 1~ ~ y \ ~ L y T! ~ ~ S ~'i t"`4f •~01~Mf.LL CM^a(+C' w- . W w ~~ Y~Jt ., - ~ ~C ham- ~ •~ ,.k-e..c~ ,.~ ~., ~ ~ : "~" dk+~ ~ i - ''`~ e`;c 9'~ e~E ,,,,~•+~ ~..®bie... .K~ .wed -{~ se1.FE vet .HCd -4o gt~{ ~r,t,~.~.tF ~~ Y~., ceM.e («.~..~ . a# ,,,;,,~ a~ - a..,a has bee... - 4. r-a~~•ri.M.~ rsE- .+r..1 1e,.,.~a.~ ta,.l ~~..~•a ....,~.~f5 ~r- ,~'.-~ ctu.y_ +r-i :.s~..o...f rt .:to.r~ F'`•~~~ ~1 ~~ S ft P ~ . ~ ..'~ tm"^ Rn'wwE o..~ '~+"~ t•ovt~{~ . (~er6..P1 7w eo.iCa t ~- 05/09/2001 23:22 9785258754 l_(xKE PROPERTY PAGE 02 ', T H,B A M! B I C A N I N S T I T U T E O F e B t: H l 1' B L' 't ... AfA Document Bl4l ~_ S#andard Form of Agreement Between t'~wner and Ar.et F,,,b,Nt~ 1987 EDITIQN THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR .NODlFIt;ATION. AGREEMENT made as of the 2nd day of June Nineteen Hundred and Ninety-Nina ',~- BETWEEN the Owner: 1100 ails d sod es, trP pVame arw arldrra) C/o Hay a ociatea 2 To r Con cken, PA 19428 and the Architect: (Nome and addrRS) in the year of ~9.- t.er~ AroNC..~Nf !~-d~An1, ~...c . i46 Lf,•.t{K, tzwsc~ ~+••~trsrlx- I+y,1lw SiR. uul4 Gt9gr• 260 R' ~' FSt~t~it_ Ar~3oc..g7~ .r 4e iiew66 s?+crtr Neu Gu•,.O[tr.M,tp ,PA 5: wW. iP„ t..t ft4 For the following Prolect:tt~T pA warehouse. o llneram dflarNd Bmenpnon M Ro)eer, kedrWn, arMrlers aM swpr.) Projee[ cansiate of a warehouse iding of approximately 87,600 SF, steel frame structure, 30'-0" cl aith a It up concret xterio Servic s cove ed under this proposal nc de Arc it ctural and ructura de ign f r t bu dig ell. Site Planning C vil ng eri aervi es wil 'be ov ed b of ere Der direct contract, ch ni al> E ec ical, pl bing~and s r kier d gn se ices sill be provided a de gn bull 6ais by th C631etruet 'bn Manager. C2arrcu.E ,nr I a.ac3~• gre «. , N noomla•••• ~+ . The Owner and Architect agree as set forth below, Cupyrlpht t9t7. t9:6, 19ae. 195t. 1953, tySe. 19(11. I Hl3. Igd6, R~7. t970, 1970, t977, ftj t9N76y The Amcrirm tnndum V of ArchlleCti, 1735 New Ynrk venue. N. W., tViinm(lhm, D.C. ?wk16. eeprauuct'raa vi ,ne rrr~rerrul herein ur subsramrm quOtltl~e nl It3 pfUVi3Wns wiUlOUI wrttlrn permia5h)r! ui the AlA riW:ates she [ppyrighr I~ws ni the tlnhetl tigre! 9nd will he >ubjrcr m ItN71 proarNrinn. Ca Aera e e e,~i`c. 65 Va ey eam rkwayr Suite Nal rn> PA 19355 AA DOCUMENT BNl • gmNkR.eRpitTECT AGNF.I•MENT • >'OUNTGEMN fD1T10N • AIA'• • Uzi PM' TIrE.lnItN1UNIP1,ITIWTY.t)FnN[IIITfCT3,l)t~rytw TONN aVF.NU~, N.Sr„We3H1Nf.TON. D.C.lU/N• 6t41't 98~ t 05!04!2001 23:22 9765268754 LOCICE PRf~ERTY PAGE 03 TERMS AND CONDtTtONS OE AGREEMENT BETWELN OWNER AND ARCHITECT ARTICLE 1 ARCHITECT'S RESPONSI®ILITIES t,t ARCHITECT`S SERVICES 1.1.1 The Architect's scn~k'rs consist uF thux scn~ices pct !tamed by the ArChitee;a Architrcti s employees and ,trchtteci iunsultanrs ;ti cnWnutaectl in ArciCkS 2 and 1 olthls Agreement ant! anY other servitts inCluekkl in Article 13. 1.1.2 The Archhecr :s services shall rte performeat xw txpedi- ek>ttsiv as is cwt[iuent with pmfr5sknul skill and qre and [he orderiv pmgress of the Work. . nc~ ferc t iJlrj iC!' i~rrtiee F w ;teed for ~ appmval of submersions by autharinies having ryrisdiceion over the Project. Time lirteles establ6hed by [his sr.hedule approved by the Owrcr shall rack, t~ecept for reasonable carne. tIC . by the' ArethteC~~t[ W Ow r. Qyy~y~r~~K MN4 ytr R StA4.W1E Karl A[ 1.1.3 The services covered by this Agreemrnt arc subieCt t0 the time limimtbtu mn[ained in Subparagraph 11.;,1. ARTICLE 2 SCOPE OP ARCHITECT'S BASK SERVICES 2.1 OEFINITIpN * 21.1 The NChi[e!CYS Basle 9envkcs coasts[ of thWe desczibed in Paragnph4 3? mtategtt 2.6 and any ocher services identified in Article 12 u par[ uF Basic Sm~. and include engeneeNng services. 4i`*r - 2,2 SCHEbATIC OES~1 PMA9E 2.2.1 The Atchitec[ shall mew the program Famished by the Owner ro ascenvlcl [he r~eq!u_vegmma of the Projec[ and shag arrive a[amut ~Ige3 ~4temW-w~ilreT1•re N1FQ o r.r Owner. ~dslr L P16~st1C li . 222 The anrchitrxT sii~g~IIff,pp vide a preliminary cvaltlatlan of the Owner'} ProRralrP"Ytrohtaiuk. approaches ro design and construction ut the Projec[ 2.2.4 Based on [he mwuagy agreed-upon program. sCheduk and cons[Ittcnon nudger requirements, the Archuec[ sha8 prepare, for approval by [ht Owrter, SCMeMtnie'Be~BoCU- g r ~ tLtLVf~SLP 'pR-IMMrN4f A N~ rN oMRrlrr.LC 1'a. 22.8 .try eN UthYFeWIFN[leN& 2.3 OE9IGN iT it~w Ea* 2.3.1 Bored on the approved ~+rre~ie-9esir[n t'kxvme.-rats and anY adlus[mena authorized by [hc ()wart in ehr pntgeun, the nrrhitect shall prepare. for approval Is rwwsMrirtRTn"dr;twinµ<anrl olncr dVCumcnn Iwiw(hMeKlaritec t ruC- 'o.l~ t*~+d' a i h . 2.3.2 T I,g c , 2.4 ~CONSTRUCTWN OpCUMFAdTS PHASE ~ A:Q•lNlp 1R7GbrN6s 2.4J t)asettl un ehr appmvcd - u• rtleMte and any Further adlusmunts in me scope ur yualky or me Pn)iert ur in the arastnK•tion budget autltunzed by the Owner, the Architect shall prepare. for approval by the pwllcr. c:unstcuetian Documents consisting of Drawings >ereing Forth in atenil the re-quicemena for the construc- tion of the ProKet. * 2.42 ton of ondi- t' he OvmCr~cd-C.nrunttor. * 2.4.3 T t01r =f1-~IyY ..r r,. ..a,,,. r,w ..a~. ca ~ 7 * 24.4 The Arehteett shall,~ssisr [ ka eonneY[Iph with the Owner's responsibgity For tiling documents required for [he approval of governmental au[hodties having junsdktlon over the Proi<c[. * ON ]ail-~Ne-,4rekic~-~7[yaWervner'rapprov4~tRte Construction Documents Uee hre•t pr estimate of Construction C Vt all usist the O m obtaining bids or negotiate owls and assist ' wardeng and papuing C ~" 2.8 CONSTI9UCTIpr1 PHASE-A~INN<TR/[TIOPI .. OF THE CONSTRUCTION CONTiACT 2.8.1 The Architect s respansibility to provi~ Basic Services for the Canstrtutian Phase utedtt this ngmment mmtrtrnces with the award of nc~ Contract For Gonsentetiv and Ierminates ere [he earlier OF the issuance to the Owner of [ Mal Certifica[e for Payment or W) days aher [he dare of Su 'tial Cumpktion of me Wenk, uNess ex('erecled under the s of Subparagraph Id.3.5' 15S.e olr +vbfE !f (~s+.d S.8$ The Architect shall provide admken[ntkrn of the Can- rncc far Cuns[nx~dnn as .ter k)rth heWw and in nc~ edtrian of AIA Dexumrm .itU 1, General Gmdirevns of [he Con[rac[ For Cgnstruction, Curren[ a1 of rhv ante of thb Agreeneen[, unless atherwiar provided in Ines ngcerment. * 2.8.3 Owics, resprmsihilitias and limin[ioru of au[horily of nc~ Architte:r shag nut lie re}[tutee, m(xti8cd ur exrenckd wirham written :Iprecmenc of the Owatt and Architect r++r t ly w«a Au OOCUMENf n{t • Vwgek•aa(=11RE(T aVREFd/ENT • r(NIIREENTII hen-Ia1V • nln" • k~ 1'MT The nMENN:Ar/ Ir1YTeT1TEaF ~Nf:HrrPa;rS, qdt N@w Ye)Nk.14t:NUe_ n.w., wasNlr$:1'tIN. D l;.:eNMb 8141-1~7 2 * See attached amendments __ 1:8.4 The Architect shall he a repreaentanve of and shy! :Wvisc and consult wleh mr Owner (t) during tr7nstruecitm um8 fmal payment to me Contracmr is ehrc, and (3) as an Artdinuny Scr vice u she Owner's direction Yrom dmt ev [trot During the a7r- reainn peritxs Jtscrihed in the C:Imrnct for Cunstnrctkm. The Architect sh:dl havr atghurity to :xt on hehalM of ehr Owner only n7 the extent providtrd in rota Agreemtrtt unless uthcrwlve mctnrticU by tvrrrrcn inswment. 2.8.3 Tltc Architect sh:Nl viyt me sire at inlcrvys appropriace to the xnge of consertx;tian or as athetwist agretd by the ,Owner and Architect in wNek7g W hecr7me generally familiar with the progress and quality of the Wurk compkctd and m determine in general ;f the Work is being performeU in a man- ner mUlcadng that the Work when completed wgI he in accor- dance wim the Contract Documents. However, the Architect shall nor he required r0 make exhaustive or COminnoug on-site Insprc{kms'ro check the quyitY ar yuanUty of the Wurk. Un the basis of on-Site Observa[bns ss an architect. the Architect shall kelp the Owner informed of the progress and gnaliey of the WOtk, and shag etffieavor to guard the Owner agynst defttrs and deficiencies in the Work. (More exrensite .,ere represenrarcon may be agreer! r0 as an .iddilional.iertace. as riescrfi7EtJ in Paragraph 3.?~1 2.8.8 The Architect shall not have contcol Qvef or charge of and Shat not he responsible for construction means, muhads, rcehttiques, sequentxs or procedures, or for safety precautons aced programs in rnnnection with me Work. since mere are solely the ConrrxtOr'g responsibility under me Contract far Construction. The Architect shall not be responsible for [he Contractor's schedules or !allure to tarry out the Work In ac~or- ' dance with tltc Contract Oocumtmcs. The Mchctett shall not have control over or charge of acts Ur omissions of the Cuntrac• rot, Submntnttors, or their agrmn or empbyees, Ur of any other persons performing partiong of the Work. 2.8.7 The architect shall a[ all timeg have access to the Wprk wherever it is in prcpuation or progress. *' 2 tract Otrcumrnts or whe eer ¢ommunicatic ave seen spe- tinily aoehori a Owner and Conr r shall eommunipee through rchitect. Con7muniSa h3 by and with me Archi- e Nee-Iefhitect. e 2.8.9 eased on the Architect's Observations and evyuations of the Con[ract0[s Applications for Payment, the Architect shalt review arw ecnify the amounes due me Contractor SEE i4.•'~t4C 1L. 2A.t0 The Archittti s ttnkkation for payment shag cons~i- mee a repre5entatibn m the Owner, based nn ehr ArchirecPS obxrvatlons ac the sire as pmvrded in Subparagraph ~?.6.5 ono un the data comprising the Contractor's Applicatk7n: for Pay- mrnt, that ehr Work ha7 progressed to rot point indicated and that, to the ben of the Archhect's ktwwledge, infatm;ttinn anU hdlef,~gvaliey of the W<uk is in accoKlanCe with firContnct Otxxurnents. The mregoing rcpresrnrariuns arc subject tO an evyuution of ehr Work for conormance with the Can[ract Otxumenrs upm Substantial Cumpletk)n, m resuhs of subse~ yutnt tests and inspections, to minus deviations ream the Cun- UaCt Dncdmenrg on[rectable pnnf IU COmpItCldO ;utU lU spr- [il'tC yualitit:ations expresved by the Architect. Tht ixwancc uf;i Cenificarc tiu Payment shall Fur[her conuiate a reprwrnntioa mu ehr Contractor is rnti[k:U m paymau in the amtwnt ecrti• ricU. Huwevtr, the issuance of a CerUt'u:arr fur 1)•aymcm .hall not hr a represcntulun that me Acchimct has (1) made exhaus- we ur a7ntinuuus txtsitc inspcctams « 1 chceK the yuallry t)r 3 eta-1se~ • See attached ementhnetlte quurtlty nF the Work, 131 rcvitwW ct7nvrnictkm mans, mah- uds, tev:ltniyuq, w:yuenccs ur prtXtxltxes. (.5) rcvkrtvtY7 ,:uples of requivitk7ns rcceiveU tram Subcontracmn and mucn;u vary pliers :mU other t4a reyucsred by the Owner to subuanelatc the Coneruaai v right ro paymau ur fti) asccreained haw ur 1'or what purpt7sr the Cuntrx«)r has used money previously pain ,m aaaunt of the Cw,cran Sum. ifre;ewrrLAd ~ trwvu~ {v~[tr~ai;,A i'f 2.8.11 The Archicrn shall ttavc•~. ~-~~-----vV,7rk which noes nor canhum eo the twmtraci Ot7ctrmrnts. Wncnevrr chc Arhitttt aNtsiUen It necrigry nr advisable for implemcnta~ clan rat the inrent ¢ u Ma(~Dt7cumcnt5. the nrcnicect wilt have aumgrity m~tkmal inspection ar to[ing of the W<xk in xct7rdancc with the provigitms nl'the Contract U.x;U- mentg, whe[her or our such Work is fibrinced. installed ur comphttd. However. neither this aumuncy of the Arethrtct nor a necisiun made in gdcxt faith timer ro [xerciYe or rata w exer- cisr such aumarity shall give rise to a tluey ur respexuibilicy of ehe Archstect ro the Contactor. 9utrcOntmcn)rs, macrrral artd cuuipntent suppliers. their ;[gents ur tmpWyers nr Other per setn5 performing portions of ehe Wur~~~a 2.8.12 The Architect shalt review and ap}.e.e ur rake t'>nc~r appropriate anion updn Cuntnecor's submheals such :L5 shop Drawings, Product Data and $ynpks, but only for ehr limited purpose uP chttking for conformance wim in(ormatlull given and the [![sign concept txpfessed in me Contract Documtnrs. The Architects action shall be token' wim such reasonable promptness as ro cause no delay to rot Work or in [he con. srn7ceiort of the Owner or of separktc contracmrs, white aNnw. ing suffkimt time in me .architecCS pm[esstony lodgment to permit adequarc review. Review of such submiaalS u not tom ductt:d for the puepase of dettrmihing the accuracy and cam- pkrenas of other tYetags such as dimtnsioru and gitantigts or for substantiating ingentetions foe instagaabn Or perfOrtnantt of equipment or sv5rcms deslgtxo by rot Contractor. w of which remain ttte responsibility of me Conrnccoc ro the cxtrnc requited by me CUntrxc Documents. Tht Architect s review shalt not consrirure approval of sak[y precautions or. unless otherwise spe6f~cagy s[ared by the. Architect. of construction means. medtOds. techniques, sequencGS Or procedures. The Architai s approval of a specat7e item shall not indicate approval of an assembly Of which ehe i[em is a cnmpanent. When professmnaf c-erti8radon of performance charxtcristics of materials, systems or equtpmenr is required by the Comnce DnCUmmG4, the Architect shall lx mdtled to rely upon such - certiFadon ro esnbiLSh That rot materials, Sydrems ar equip• men[ wgl meet tt)e performance crueria rcquked by the Can- vact Documen4~~' 2.8.13 The A~RCt shag prepare Change Orders and Con- s[mttion Change Dircetivts, with sttpponing documentarian, S .. ,for the Owner's approval ant executk7n in accordance aim ehe Contract Dc7cutttenrs, aW \ may aWhruize miner trianges in the Wurk nut involving,RR adjustment in the Conuact Sum or m rxrensian of rot Cunuxt Time which are nor imm~sisrcnt wim the imm~r of the Contract Oncvmritts. ,~ ~~~, 6•t. SIrEJ~ WTsw~e- 3 e k R 2.8.14 the Arch1tec;t .vhyl canduc'~,~nspertkms w determine ~ t)k; date ur dates ul' Substantial Cumpletk>n anU the Dace or rival cnmplrtiun, Jttgl--raw ~ - . ' rt~r+ar~•ette Uwncr's fIVICw .yy?? fI:LY)rdi wntren ante s :tntl tared doaunrnts r 1(red by ehr t}our ' )cameo[' awunt- hlyd by t ante-acu7canl. sh' '.. uc a tln-al ' titxur rut rsry- ment m .vmpiiance ai the reyuircmcnta ut ehr (:Doane[ 6trwwautrte~ AU OOCUYENT Bt41 • r 7wpER~ANlN17ECY AI:REENENT • YOURTEErTni EOrtIOn • AiM • ut 19x] 'fliE AMERIG]H MsTITt1TE UY ANCHITECTS, 1775 MEw Yrkrk AYENUC PI.Yr. VAgmiMCTgN, O.t:. Nxral ou iFttfn AiaxtGbsi 33tULtl pSL0SZ58L6 ZZ ~CZ L00Z/60lSfl 05/8912001 23:22 9785268754 I.OCKE PROPERTY PAGE 05 * 7.8.15 The Architect shiW ktrcepret and tkcklr maetm trm- ccming perfnfmanee of the Owtxr and fgntt~ch)r unckr thr: tequlrcmmn of the Coronet OncUtrtcnes r)rl wdnm rcgacet of either chr t?wnCr nr Comrat[gr. The A¢hnecis responx m such requearv ahatl br roads wleh reus(mabte pn)mptnesc anU within any time kmkr agreed tyxm. 7.8.18 Inrerprcntk)ns and decwtxts uF the Architect .hall he cnrisiseenr with the intrnt of and reasrmahly intertblr loon the Gmtrxt DgNtnents and shall tlc in writirgS rx in the Fnrm IN~ drawings. Whrn making such intcryltetations and initial dcci• sk)nr, tht Architect shall endeav<x m sccucc F.Uthhil perfix- manec by Wnh Owner and Cnntnctor. shall nrg show panl:dlty u) either, antl shall nal he liable Fur results of intctprcndtlns ur .deCilinni.sd rrntketsr! in grxxl fakh. 2.8.17 The ArchkeCt's decisions n mmten rchtiny m aermr- tic effect shall be Mat iFconsisteflf wkh the intent expressrd in the Contrxr Otxwnenrs. ,. `~~,~~ ~ AuaWY 7.8.18 The Architect shall tinder wrirrrn dccisk)ns within a reasonable tune on all claims, disputes or other maters in quey- eion between the Owtxr and Csmtrxtor relahng ro the r~ecu- tion or progress of the Work as provided pr the Connxt Documrnts. 2.8.19 The AfChircC['S decisiortr wt chirna, disputes or ocher matters. iruWtling mole in gtkstlon be[wern the Owner and Contncror, except for those relating to agrhetic effect as pro- vided in Subparagraph 3.6.17, be wb{ar ro arbirtatlon as provided in rots Agrecmen[ and in the Contract 17ocuments. A~1-Y ARTICLE 3 ADDITIONAL SERVICES 3.1 GENFRAI 3.1.1 The scrvka dexrlbed in rho Ankle 3 arc not inclltaed In BasK Semce tmkss sO ideng8ed in Article 7 3, and dry shall lx paid !or by ehe Owner as provided in this Agrcemeat, in addition co Me compensation !ar tlasic Services. The services described under Paragtaaphs 3 : and 3.4 shalt oNy be provided if amhorized or confirmed in wn[ing by the Owner. ifservices described under ConringeYte gddi[tanai Srrvka in Paragraph 3.3 ue requked due to tarcumstattces beyond the Architect s ctmtml, the Architect shall notify the Owner prgr to com• mtmctng 9uth ~rviccs. [f rite Owrtu [keens rho suds smices described under Paragraph d.1 are nor r[qufred, the Owner shall give prompt wdhen notice ro the Architect. If she Owr)<r indCatcs in wft(irtg shat al{ or part of such Contingent Addt- tiorgtl5crvices arc not required. me Architect shall have no obll- gatiun roprovide [hale smites. * 3.2 PRO.IEOT iiEPRESENTATiON DEYOIt~ BASS SERVICES '~F OurNtLL qN0 AtaM1ltTAftttE 3.1.1 l[ more extensive reptesennnon at the sire than is rlescribcd in Subparagraph 2.b.i is rcyulred, the Architect shall provide one ur mute Project Repteaentttivcs u> assist fn cury- ing our sur.-h additkmal umsice raprmsibig[ieY- 3.7.7 Pn)jece Rcprrsertntives shall he selected, emph)yetl anu directed by the Architect, :1nU [he architect sha11 be compen- sated therefor ;a agreed by [he Owner and Art'hiKCr. T1sc du[ies, resptmsihililks aml limieaek>Ynr nY awhnriry oY Project grpresenru[ivcs shall Ix ar desccitxU In the edition of ,lira Drk:umenr U:153 current :n oY the dart of Chic Aµreement, unkar ~lthl'rwill' agrl'CYt. 9.7.3 'Fltmugh the 1)h;tcr:rtiuns yy such PMlc~ct Rcprc:xn• rativcs. the Archi[ec[ shall cnekavor w provitk Yunher pnnet~ tkrn n)r the Owner ag:tlnc[ deletes and akRticndes In thr Work, but thr furnlshtnµ of s(tch pmictt represrnntku+ shall our rmx11Fy rhr rtyihti. rcr, ptmsihilltia yr nyliµatigns oY the Architect :tr drstribrd elµwhCrc in mi, ,lµrcemtn[. 7.3 COKTiN(;ENT ADDITIONAL SENVICES ~~~ {~tewp[0 tteglp.isf+ewt AwC W1 TAfEglyeTs 13.1 Makinµ reviskms'in Dawings, Slxciflcatinnx or oth~`~ doatlmrnts whrn ouch rcvisktnr arc: .1 incoasistenc with:y)pn)rth tN im,ItcuCtiuns prcvu)urly given by the Owner. including rcviskms made nect„s- sary by asqus[menrs in the Owner's prgµnm or Prilj• rte budget: A required by the enactment ur rcvtsign nF a)des. laws or regula[k>ns suhsequem u) the prepantkm of such dncumrnts. or .3 due m changes required as a result of the Qwner'$ iuil- ufe [U render deCi5lan5 in a timriv mannC[. 3.3.2 Providing servkes required because of significant ctim+gea in the ~Projecr including, bur nor Rmhed ro, size, qual- ity, tumplexi[y, the Ownei s scheduk, or the method of bid atng oc negotndng and contracting for construction, aTCept for services rcquircd under 5ubparagrapn 5.3.5. 3.3.3 preparing Drawings. Specif)Catrotu and other documrn- eation and suppohing dam, evaluating Contrxror's proposals, and providing tuber 5ervkes fn cotatKCtWn with Change Orders and Conswccion Change Directives. P~+pfP`9itrA clwfiMt Ar6l IrroY' 1WG ~iN1-T OG 3:3.4 -pPp.idil$Stto iew:.wd-... ~ ~ g 9U7uii- tutiOns proposed b onttat:mr making subxquem revisions to g5. Speci6car sand other documentation resekeig-eherePtpetr. 3.9,8 Providing rnnsukation conccming rcptaccmrnt of Work damagedbyfire or omcr cause during constn)cuon, ono fur- nishing servicrs required in connectkn with [he replacemeht of such Work. 3.3.8 Providing xrvkes made necessary by the dt[aWt of the Contractor, by major ~fe<ts or deficiencies in the Work of the Contractoc, of by tsilurc of per[onnanCe of either the Owner or Concrae[or under We Contract for Constnreuon. 3.3.7 Providing servims in evaluating an exmnswe numtxr of shims submi[red by the Contmctor or others un connection with the Wnrk. 3.3.8 Providing services in mnnextion with a pubkc hearing. arbt[ruWn proceedbrg pr legal proceeding creep[ where the Archiact is ryarty there[o. m711P.L 'Mww W9t.W PCr7twMMNt lb o:Blrw.s pnea.rT1 3.3.8 Preparing dtxuments far ;rlios~e, sepanue or xyuential bids or pa)virllng services in eonr>renon with bidding, negtxia- tWn or rx)nstruction prku w nc~ completion of the Conrwa tion Documents Phwc. 3.4 OPTIONAL ADDITIONAL SERVICES * 3.4.1 Providing arWyscs .>f the Owntrs nerdy anJ pn)µrtm- ming [hr requiremcnn of the Pn,j(K6 ~~ A~uysClD 3.4.2 Providing figantiai teLLSihili[y or InM:r ypeeial sadtcn. 3.4.3 Providing planning s(uveys, site cvahutiuns ur cnn+- narative srUdks of nn>.cpl'l(ivl' SitCS. AU paataAEnT lUt • gwNER-ARCI1tTECY AtiRleMFxr • FOURTEENTN EOPr1tNi • nin• • K)19N'! The AMF.xn:AN INNTfT1rrE OP nRCN1T!<;TS. 1)?5 Now YORK nVeNlle. N.w, wnaNlN({TOW, p,l:. [IMNNI 8141-1987 4 * See attached anendmente 05/89/2001 23:22 9765266754 R 7,4,4 PurvkGng ynYWl ,wrveys. unvimnmcmW studies anal suhtnL~csiunX rttiuimd fur appruvaLr ui glrvrrmnatul :unhuritai ur oUtrrs h:winµ jun)kllrtiun over nc~ 1'rujtxr 7.4.5 Pnn9Jinµ urncus rdatjvr n) latent Iarilitie+, svskms anJ cYluipmrnr. 3.4.6 providing .+erviccs ro invtsni[arc cxhtlng cu°tlitk nts ur • • - tarilitics °r +o rlrakc mruurcV Jnwings thereof, 3.4.7 Pr)viding services ui vcrifp Ihr acevnley uF drtwings or other inform:rth>n fiunid+cd by the Uwner- tsiWr (~~,, pt`E 4•K QsMy pi`lprtwel IRti A.t-Mdedr' . 3.4,8 Providing e~X)rclinatiun ur uu+. tnlction prrhumtTl by tirp:uale rpntrJC[grs nr hV fhr C1wnCf i 11wn furclx imd Oa°rdi- naeiun uY srrvicu-i rcyuircd in connrctiun with cute<trurtitm Ixvrivmrxt ;md equipmrm alpplieJ by [he Owner. ~ 3. . can 3.4,70 pmviding JetaileJ catinutes of Cuns[ruuiun Gnr. 3.4,11 Pmviding derallcW quan[kv survrvs ur inrentoric a( materui. equipmene and labor. 4tt-(f iinr-.. ~,~,~(yd~ * 3.4.12 SI?+ ~~ --"' • 3.4.13 p Ices . pmcuremem or' [ 3.4.14 P ces- 3,4.15 Makktg klv~rrgaUVm, inventories or mateaials yr cquip- °seilt, dr vallJat10It9 antl. tlefailed :Ipplaisals Of gdt[Ir~ facilides. 3,4.18 Preparing a se[ of reproducible record drawings sh~w- ing significant changes in the Vaork [rode during eorsstevetion based on marked-up prints. drawings and othtr darn fvmished by the Cvntrattor ro the Archirecr. 3.d.17 [ yr sY uon vt ° Yor 0 7.4.1fl providing strriees after isswsnr [u the Uwner vC nc~ tidal Cerzideate for PaymMr, ur in ehe absenct of a final Cer tificate for Payrncnt, more [flan 40 days after the dale of Suo- stanrial Cvmplaion of the Work. 3,4,19 Prvv;tl;ng scrvtees of consultants for other titan archi• teetotal. srruautai, mecha[Ixal and eltetrical rngrnetring p(x- tiotls of the Prvlecr provided u a pan of Sasie 5trvices. * 3.4.28 P in t' e witjl3rdttaLLY "~~~",..raw ,..max»ie. ARTICLE 4 LOCMCE PROPERTY PAGE 06 4.7 'fhr [)wrier steal) csubllM+:u'IJ uptWtrm overall hutfµet Yor the Pn)ject, irnlu\Ilnµ mr (lmarrtlctiun Ctrl[, the Uwnef's uth[v axes and rraatmabk c[nuingencia related a):UI ul'thcu ax+d. 4.3 If rcquruvd by the Architcrt, the Owner .hWl liunidt cvi- tlrnce that 6n:un'ial arrangrmrnts hoot been maJr to lidlill nc~ Uwltrr'.; Vhilltalkinn ltndcf this Agrl'lmlCnt. 4.4 Thr gtvncr ah:dl dcsiµnatr a rcpn:xmmivr authurizrJ to act un fhr Uwnrr's hehalF with rcpee[ u> the Pruwct, Thr [)wnl'f tlf leach aUlhuci/.CJ rrpirsrMatlVr :rhaU fentkM dCt'15k)R; in a timely m;uu+rr pcrnininµ to documems submitted by thu Architect in artier fv avukl unn-asunahlc delay in fhr nnlcrly and stycenryal proglrtcs ,>I fir Architcct'.a services. • ird~ 1Mp' OrrMtl4 sth-u. Pa+rIPE 4.5 The sh;Ul nish surveyA dcyerlbing physkal characrenuirs. leg nack)ns an[I uliljry locations ti)r the she ur [ht Prnjec~ 1 a wnnCn Ir}pU ticscNp[R)n ur the Slte. The surveys :rnU kpl~ ir[ftt~YR4Y Sb:UI include, as applicable. gradr7 and lines of streets, aUeyti. pavements :md adloining pfope[(y ar1U s[IUCtU[Ca: adjarrm JrainagC: rlgtl[.S-pt-waV, restrktions, easements. rncrvuhmenrs, caning, deed rcsuly- hvnx, boundaries and contours of fhr sire: itxadvns, dimerv lions and necessary elan pertaining [q existing buildings, +xher impmvemems and trccs: and information concerning available utility services and tines, twm public and prirue, above antl below gra(k. including jnverts and depths. All the information on the;prvrv, 3 all be iefcrcncedcp~-oro c beach r~rk. ul atnal:-- M@ sMw\E by\ h,sn•tq ~r..~dar.dj , 4,6 Thr Uwner shall Pornish [he se[vtttSOf geotechnical rngi- neers when such services are requested by me Architect. Such 32rvicrs may indtWe bur arc not limited to rest borings. rest pits, determinations of wU bearing ralUG1, percolarlun rests. evaluaciuns of hazardous matenaLS, ground cOrrOStdn xld rests• tivity tests. including necosuy operations for anuclpating sub- soil condi[iuns, wuh reports and apprapdare professional recommenda[ivns. 4,6,1 The Owner shall furnish me services of other ionsul- [arlrs when such services are rruvaabiy rcquiced by the scope of [hc Project and are rcquestM by me Architect. * d,7 The Owner shalt famish swcrunl, mechanical, chemical, air and water pvllurion tests, rests Fvr ha7ard°us ma:etials, and ocher IaMM)ntoty and environmental [estR, inspeaivns and reports required by law or the Contra[ docyments. ~ens..lvver selft~Utrt•`e. 4.B The Owner shay (umish all legate xco Wg andmsurartcc crwrlseiing Services ss may be necrss ae any [one for the Pn)jecr, including wditing services the Owner may rcquirc a verify the Canrmc[vr's ApplkarlonS for Paymrnt or ro ascertain how nr for what purposes the C°mraeevr hss used ehe money paid by ur on hehalF of the Owner. 4.9 The services, information, .curvevs and rrpuns required by Paragraphs through 4.µ shag be furflislted at the Uwncr's cftpensc. and chi ~Architcct shall be cn[ided [u rely uqm the :scanty and eomplcYeness thcrcof. owNEfl'fi RESPOIVSIe~uTIEs ~ 6ra6rNKpL•r • 4.1 The Uwner sMl tll prrivldr-iig intvrmaCUn regarding reeptircmcnts'rix the Prvide, i hall s en- (r '' xi- [e rmYerr.snr-+'[s':' AS w.4iw. ..w ~r.t I4-r1 /r~cK~ ri 5 8141.1987 4.10 Prompt wrincn nutlet shall be given by nc~ Owner a) me ArrhitttiT if the Owner hecomes aware vi any Yaul[ t>t tkfea in fhr Pniject ur nunconh>rmanee with the C,umnet Otn'umrnn. 4.11 Thr pn>pt~eU lanµwµc ul' rrrtilica[es yr ccnificatluns rCyUU'SICU ul thl- Arl'hIICQ Ur AR11iICl'i ~ CUnSUlfL714 shall he sunmiueti to the Archurcr fur review aAd approval at le;x;t la Jays pUV[ U) rxCUtkpl. Thu t)wner tihaa ntu requval tafrlltit;Y rives that would rcquirc knuwledµe nr srrvtces beyond the leapt of chi, Aµrccmm[. AU ooew~rtY 0141 • UW NEN~nNta uCEC'r AGItEE%rEN'1' • FUUR'rEENT11 EWTk)N • AIA~ • "a 1VMl Ti1E nMERX:.\N IN87tTtCtF Ur .\Xt:111TF./'ll. r74! NEw vr)Nl( AVr;Wi!1!, Y.W., WANIIN(:Ti)N. U.r;. !IMMM+ • See attached ismenelmente 05!09!2001 23:22 9785258754 LOgCf PROPERTY PACE 07 ARTICLE B s. DFPlfrtnoN 5.7. 7hc G)m[ntctitm taro shall to [hc n)t:U coat .r tui- matL I tnst IV the gwnur ul all tlemenn of the Pmjatit J r4ncd ar sp •ifred by the Nchittcr. 5,1,2 hr S:unatNCtk)n Ctyt shall incntate the aLU : nrrrent market ors of IaMx ynd matttials NMcaheJ by the t Ixr anal eyulpm t Jcscµncd. spnifieJ, atlautl ur spL•ciall pnrviJtd ti>r by t • da•hitL•C[, puts a reasumabk aik>w•ancc Ir iht Cun- cnaur s vtrhesd anJ profit. In addirkm. + rca< able :dlan•- :mm 11If L )n[mgencl[5 shah t)e intltnled 1'or mar LY \tlntlitU)n1 at nc~ rim ui' hirWing surd For charl~s m rh WorK During eOnt[NL-tll SA.;; Cun ukm Crur dyes not include the -r)mpcnsation of Inc Architec and ALChltttt'ti LY]naUltartLS. [h c<Las Vf the IanJ, rightsy)f-wqV, IinanCing or uthtr cUSts whi h :Ire the rtspun- sibili[y of the wrttt as provkicJ in Ar[IC i. 5.7 FOR CONSTFJUCTWN COST 5.2.1 Evaluwio of tltc Owrrci s Pm' r budge[, preliminary estimates of Co wtrion Cvsr and led estimates of Cun- slNCdon Cost. if y, prepared by .VChltect, rcpresrnt me Archiaci s best ju t as a doign Oftssional t'amiliar wieh me tonstNCtion his re izcd, however. chat nei- ther [he Archirett r tht Owtlet comrol over nc~ oust of labor. mdtt[wts Ur a it o! dearmkring bid Pr e or negorraeittg eontsii and doe, not warrant o will not vary from the estimate of CorLSr[ucdon to by ehe .atefic[ea. 5.2.2 No ficcd limit of as a condition of mu AE establishmrnc of a Pcoj been agretd upon in wt SUCK a fixed timi[ has 1 permitted r0 include price escalation, m de Irnt, o the ContraCrors methods Or over 'ompe[idee bidding, market ACto ingsy, the Archi[ec[ carmtu pr [hu bids or nt:gotiattd poets weK s Project budget or from any ;fur revaluation prepared or agreed gotten! 3ys[em5 and Of the Conerace Doc tots, e0 the scope of the jeer acrd ro nteny altermm bi m adjust the limit. Fixed limit' Dany. stnR Ine[eye in the react Sum Cunvut for C ruction. :don Cvst stall be n[ablishetl by the famishing, proposal ur tt, unless such fLCed limit has signeu by the games hereto. If Dllshed, [he A[chitlXt shall be tits for design. bidding and tat materials, tquipmcnt. Lrom- [mn are ro he included in t reasortable~ idjwfineny N ' dude in [he Ctxtuatt Dptu• «tudun Cost to ehe fixed be i din the amoune of an ' g star necudvn of nc~ 5.2.3 if the ~ 'got Nej;otiatron P has nor commenced within yq Mfr nc~ A[tlri[ett its the Co[ISUUCtcon Document' r [he Owner. any Prolct:t 6 get ur fixed limit or f,.ons[NRiu C.ut Stbil be adjuuetl [q leer changes in me general ley ui' prices in the construction in tucry hetweL•tl [he Batt Vf % mlaaid0 l!f the CUn1[N[tlnn 111nCOy tt) the Owner' d me Joe tln whuh pn)pauais as ~ough[. 5.2.4 I a rr,Ted limit of CunuNCtion Cost { iusteu a prn- vidrJ - $ubp:uagraph 5.2.3) is cxcecrled by r c luwt5[ INlna tilt d nr nL•>jvtisutd ptuptzsai, the Uwntr s • .1 give wrxtrn approval of an incrCase h such fixed Iimih .2 aulhorlaC fMltkllrlg rN rrnLxxxiatinK •rf lh Project .9 if l+nricct is abanduneJ, tetminatt in acLTrrtktnw with raµt:tph 4 ,5: ur .4 ctuq)trate r •viainµ Jtc Pmpct stulx t quality tN nyttirtd iu rcJua Ic t:onsmrCtiu .uvt. 5,2,5 R dx Uwncr Chunets ur p vnalcf CWtLat i..: r.~r, the nrchintt. witituut :Nditkn.al ~ . rµ , hall mtxlcfy ehe l:un- rrtct Dtxumr:nts es na•ccssart' n)mpw w he riXtd IimiL if tstahlished :LS :r cundiriw this Aµteement.'T nliliCatiun rat Cunvacr Urxvm• v +hall ht the limit rrl the ittt't's rLxpuftsihility a ~ µ out „i the tstahli+hmcm ul a Iixr.K nit. The Nchit .:h:t11 Iq; annueJ nr ~umpensatiun us accunAtna' with t ~ • µrccmunt iur ~,JI scn•ica~s Ixrtnrmtd whtuttr or nut the . ]n5[NItIUrI I°h:uc i5 IX)Iltnrl:nl'L'd- AATICLE fi USE OF ARCHITECT'S DRAWINGrS, SPECIFICATIONS AND OTHER DOCUMENTS 8.1 The Drawings. Slxaftcartuns arw other datumeNS pre- pated by the Archit[tt lur this Projccc ate instNmcnts qi the Archi[etCS service tUr use wlely w)[h resprc[ tU Ibis PmjcC[ and. unless otherwise provideU. dtc Arch)teet shall be Jeemetl nc~ author of these tLrtumeny and shall retain all cnmmun law, statutorv and other rexrscd right'. including she rnpyright. The Owner shah be permitted to retain Copies, inClualing repro- dueibk copies. of me AKhcteei s Drawings, Specifirauune and pthec documents for inlormadon old reference in eunneenon wieh the Ownei s t45e and occupancy of the Projec[. The A/thi- aci s Dmwmgs. 5ptcifitahury or other tlotuments shall nor be wed by the Owner or others oA other projects. for addidvns ro this Projett Or tar camplerion of this ProjeeT by txlicrs. uNess the A[ehi[ec[ is :Wjudged to be in def9ul[ under ehis Agreement. exeepe by agteemrnr in writing and wieh appropriaee Compm- satbn to the Architect. * 8,2 Submission nr dis[dbutivn of document' to mee[ offkial regtalarory requirements ar for Similar purposes m conneGion with [he Project is nor [U he construed is publication in Deroga- tion Uf the Architect s reserved rights. rte' yhta,l.1- r.lk J1Q I~I.rHI ar4 ,... '1Wr cr' ~ .{WSf, ~fkGE * ARTICLE 7 ARBITRATION ~ME d-.wls..~C' ra.dWlL :- o.r.kt+. qtE ~t>terili,. 7.1 Claims, disputes or ocher matters in question bdween [hc patio ro this Agreement arising nut of to relating m this Agree• mrnl or broth thcrcvf shwl he sable[[ ro and decided by arbi- vuion in aeeorJancc w¢h me Cunseructiun industry A[biua• lion Ruks of the Amehcm Arbrtfa[iun Aa6[]a'17UUn turremlV in e$eet unlass the putties mutually agree ucherwue. 7,2 Demand Wr arhitntlon shall he filed in writing wim nc~ other party m this Agiterrten[ and wire [he ArntriCalt ArhitG- tidn isYdaiatk)n. A rkmand for a[biaatiun shad be mask within a ratsotrable Jmt aC[er nc~ cl•.dm. DLSputt ur other mater in yuotlun has arlpen. In nu event shall the Demand fix arbitnriun be made after the Date when insnw[iun ut Icgal or cyuiGlNc pnx;ceJinys UascJ on such dorm. Dispute ur nlhcr matter in yucl[km wnatW ix nurcJ by rhr applicahk v:t[uru uP Iimnatv)ns. 7.7 Nu arbitration arising •rut ul' ur rclatinµ ro this Agreement soon inctuJc, nv consuliafatWn. IUrndcr rye in troy airier nwnncr. .~ :Waµuunal peru)n nr rnuty nut a party u> this Aµrcemcnt. AN nndxrENT NAT • gtpNOl•ARGi1TECT nGaEENEM • rOURTEENTH aD1mON • Aug • ,] IYNr 8141-19A] 8 TI{E AMEaIr'AN INSTIME IX ANGdTECTi, r 7)S NEW YpRx nVlNUE, N.W.. WASHINGTON, D.L. !roan * See attached amendtnenta 05/84!2001 23:22 9785268754 LOCKS PR~ERTV PAGE 08 t7tcept by wnttcn mnttnt coneaininq a spetitie Inhvrncc to mW ARn;~Tnrnt 5iµnrd by the Qwner. Arehitec[. an(I :my ,iU+(T pctsrm or Cmity st)ul;ht ro hr joined. t:+In:iem tv arhitruum involving an additlnn:d Persw+ Ur cntRy ,Shall nn( tdnstirulc IIMUm( In 'dthitratiOn of Joy dalm, ditptl(l• +)r clthc[ mat[Cr in eryestion nn[ Jrscribed in the wriaan cnnunt +Ir with a prra)n nr tn(1(y nn[ named Q[ dcscdhcd IhCTCIn. The ttlrrjR)lrt+[ aRCCC~ mrn[ td obi<raa :tn(I Uthrr aµnlcments m amitrarc wim :m :+ddttionaS pesscm dr rmuy (Ally ron,entrd «) M~ the; txtnirs « ) the rtµreemene shall he specifically rnforCeahlt in accordance with aPplicablr Iaw in :my clnrri hwinp jusisdiatt)n menmY. 7.4 The award rendcrr(t by tot arbizra«7r 4r;trni[ratnr$ shall be rinai, and ludgmen[ mar be rnccrcd upon a in acrx7Nance with appticahlr law in anY court having juclsdiccWn thcreu(. .2 Tun p tie tlre[ic and -nduitWnal Servlea taco to if Icrminatiun occurs doting me 4opment Phax:.tr .3 flue perccn r total abmprnyatiun fur Ikavir and 4dd1( SeNtl'l's u'Irned C it Iwmin;ltldn r~~. a YegUrnt pha(C. ARTICLE 9 M15CELLANEOUS PROVISfONS 9.1 UnlcsS nmerwisc provided, this Aµrermrnr shatl Ix µuv- emcd by the !aw Ur du principal plan of hu5incss n( thr Archnrcc. ARTICLE e TERMINATION, SUSPENSION OR ABANDONMENT 8.1 This Agreement may be crrminaad by ei[htr party upon not 1255 coon seven days' written notice should the n(her party fal substan[ially t0 pCrforrn in a[xordanee wi[h the termsof this ,~greemrnt through no took pf me party ini[arng the cmninuion. 5.7 ff the Project Is suspended by mt Owner for more than Sp conucutive days. the archi(ce( shall br COmpensatetl for ser• vices performed prior (o notice Of roll 5[lspension. vlfhen me Project is resumed, the architece's compensation Shad be equi- tably adjuS[ed co provide for esptr7ses incurred in the interrup- [ion and rtsumption of mt rlcchi[eCt's services. 9.3 on not less man seven days' wnaen n o the rtrch' m the even[ char the Projetc is p .ndy atrando the Project i5 3bondpned 6y (h net for mere m CtmstCU[ive days, [he AtChiR y [crnlinare this A men[ by giving written s a,0 Failtue of me Owner ro makt paymcn[s (d me Atchitece in accordance with (his :tgreemtnt shall he considered substantial r)ot\pertocmance and cause for cerminaddn. B.5 t( me Owrter fails eo make paymrnr when due me archi•[~ tree Eor'services and expenses, the uchi[en may, updn aeAw days' wnt(cn tio[ice ro the Owrrcr, suspend performance of ser- vices under (hit rtgreemtQfr Umess payment in full is rrccived by ehe Architect wimin swrin days U(the dat<vF the noeiee, the suspensivn 3ha11 take effeC[ without further ounce. (n the event pF a suspension of services. the Architttt ihall have no Uabliry t0 the Owner for delay ur damage cauSeU me Owner because of such suspension Uf 3erviccs. 8.8 In me event of termination nut the ftWt Uf ehe Archi(eco the arehiteet~shall tx a)mpensutrU for iervieri perfiumcd privy m rcrminadon, roge[her with Reimbursable E:tpenacs then Uue and all Termination Expenses ai detinell in Pzrignph M.-. CnmpC M (t1r DaSic and Addltitmal jerviecs. and include r7tp whkh :ut dirCCtly aRrihutanlC t0 Irtmina(iun, Termi~ ' ~ )n 8xprnseE sltall he CompureU :u a prrcennge of th cal compcn.,acidn for Dasit Jervir;eK and Addkkmul; es carnal u) the time of lee minatWn, a5 elk)ws: .1 Twenty cent of the tuts) [nm(x:nauum Iiu tluwc an tlitinnal Servltu't carntt4 w date if rcrminntiun t:(tpfN Ixtirre • if llUlIOR (hC prrdl'S11tn. N[C analV\I\. UI' uw:.: 9.2 7rrms in This .~reemem .na11 hart she came meaning a5 th[rrr m stn fr+cumcnt ,~!ul, Genrnd Gmditiuns r7f the G7n- tne[ for CUns(rua;tion. cuncn[ ;ts of [he tram of This 3Rreemrnt. 9.3 Causes of acGOn betweM tnc panic co this =\grcemcrn perctining m ae(5 ur Falures to ala mall be deemed to have aecrutd and the applicable tta[u[es pt' limita[ions shall tom- mence rorun not Leer man richer the dale of Substantial Com- plc[fon for acts ur failurcs ro at[ accurting prior ro SuYUtan(iat Completion. Oc me date pf issuance of the f[nal Camfica<e For Pavmrnt for aces or failura co act occurring vier Substantial Completion. 9.6 The OwnCT and :ltchi[Gtr waive all rlgha sganst each ocher and against ISte COntcac[Ors. tp[ywt[ancs, zgen[5 and employee of me ocher (oc damages, but only to the excem cov- cscd by properly intucance tlucing consttvedon, e:ccrpt seen righ[s as [hey may have m me proceeds of such ituurartce a5 see Corm N the edi[ion of rtw Oocumenr 1201, General COntlinons of me Conemec for Corlstnrerton, current :4 0( (he dace of mis ,sgreemrn[. Ttte Owner ac(d >rchi(eCt ach anaLL require similar waivers from melt conrncrors. constutant9 and agents. 9.5 Tht Owner and .~rchilca, respec[Ively. hind memselves. their panners, successors, au)gns and legal reprrsencatlves ro mt abet pam c0 this agcamenc and [o the partners, suctts• stxs- assigns and legal rep(esentatives of 5txh orate pang with respect [o al covenants of mis Agreement. Neiet+ec lyararnwe( arU1i[eet shalt assign thLS ~li<eemen[ wimoue the wriam con- sen( of the o er. 9.fi This .lgrcetttem rcpresencs me ensue and in[egn[ed agrcc- mrne between the Owner and Architect and sttpersedcs alt prior negdtiuions. represcn[ations or agreements, tuner wrle- cen or peal. This Agreement may be amentkd only by written ins[n[men[ signed by bosh Owner and Archttec(. 9.7 Vt)(hing contained in this Agteernem shak crnee a cpmne• coal rela[kmihip with Ur a CalI5C df aLTlgn in favgr of a third pang against richer the Owner or AKhhect. 9.9 [;ntcss <ufltewise pcpvitkd in chit Ag[Centrn(, me :\rcnuecl and Arehi[eci s consultants shall have no resp)nsibiliey ti)r me ati7itovery, presence, h:Mdli(tg, rtmuval pr dfspUSal vi Ur ~•xpv- ,ure Uf persons m hazardous ma[triala in any form at me Pn)inr She. incltWing cwt n[x timxctf n) Wit, asixst<x ylnxlua:t.. pl)lysitk7rtn:l(rd Ulphrnyl tPr;Dl , 7r .xhcr m7l[' suhvturtc+. 9.9 TI)e .4rthi(cC[ shell have Ihr riµht tt7 include repel"-;cn[;7~ uui), uF the akxiKn .7i the Prericcc. ideludlnµ phun7µr:yNU . d me cs[criur and intrnor, mnUng the nrchiRtit',c pn>ntou.,n:d .vtd prnte55N )+Ct/ u):[(e[caL+. Tltr ~VChitcre's matcruiv .aBal not intluate the t 7avner'., dnnlduntial or Ilmprie(arv inliuntan+u, ~i +hc \)wnc[ h:ai lxcvg7tlily -.tdvi+<d the A[chucct in writinK iii AU dOCU1[I)<WT aT~l • t)w1+Ett-aRtar)TE[T st:REEMEhT • PWRTEEt[th EOITIpIV • atA' JI•Mir 7 Bt91-i D67 'fllh:AA[I~uI1:AN,NYI'1'fl?rnl'dNCI11TEC7\.1ti5 NF.w YONK A`reNIfE, N.qt, +LAA(INf TgN,ne-=i~Ym * See attached aIDendmente .1i213oi1'ud 37t~~ pSL89Z58L6 ZZ~EZ I00ZI60/50 ~,,wr ..._... ~~.~ -- 05/89//2_001 23:22 9785268754 p~ .,. .... .,.v,• waw+uuw ay uw ,~wrurC [D tX c't)nll• denttll ur prnprktaty. THC Owner shalt pmtriak pmf~wlk)nal et~ilh li)r the Arhhitect un the d7MtnK[lun .rigs anal In the pm- motkJnal rn:ueriau ftx the Pm1eCt. aRTICLk 1Q PAYMENTS TO TNp ARCHITECT 10.1 DIRECT PERSDNNFJ. EXPENSE * 10.1.1 •-i, nted--ss" t1tt^01T~ct s:darics of the Archittt['s perumr aged nn Ihr Pmjcc[ anU ItIC portion of Inc LT73f t ~ m:ItldalUN Ind t.4Y(UTa(y CUM tntwrinnY and . tts relater! [hereto, such :u empk)ymmt t]Ye5 ' i statutory empWvice txnetiu, insuf4nm, Sick holidays, vaCR~MS, penYlUrA and .ilmll;V <UntrlbhtiWt3 1tW-bexelito. Af'R~. ~4 ,~~A A..~ , 10.2 REIMBURSABLE E%PEN5ES 10.2.1 Reimbursable Expenses are in addition w compcnsr don for Basic and Addiriptlal Seroicq and include exprnses incurred ov the Architect and Archi[ttt's employees ana con- lulranrs N the interest of the PmjCet. u idcntitied N the fallUw- ing Clauses. * 70,2.1,7 Expense of tlJrt3paigtjan in cotuteclWn wim Iht Pioj[m expenses in coartcction widt authorized uu[y>f-town tnvcl: Tong-datance communicarJOns: antl fees paid for sttvr• ing approval of Llthdritip hgvin; IucEtsdrction auk chc Pmjet:t. 7M !tab!!! rat CG 7'i• aArftwawTca 70.2.7.2 E.cpense of reproduc[iuns, postage and handling of Drawings. Specifications and other documents. t0.Z.1,3 If audtoriud in advance by the Owner. exper)se of ovenime work rcquiring higher than reguiu rtes. 16.21.4 Expense of tendeti[tgS, nmdeis and mockups [equaled by the Owner. Lf~ PROPET2TY PAC's 10 10.9 PAYMElRg ON ACCOUNT OF 9ASIC SERVICPS * 70.3.1 An initial IY.tymcnr ;Q set forth in Patagnph 11.1 is the minvnum poymunt unekr this Aflteement. +~ 70,3,2 .ti1111VMIUCn1 IY.tymegla (t)f Ba.Yll' Seroict:3 shall 17C Ingak monthly anU, when; apphcabt<. sha71 he in pmr>')reiun ro xr vices performed whhln loch phase uF scrvicC on the I7:ali.Y ,tier ti vrh in Subparagraph ! t,t..l. 1Q,3.3 It ;mtl tt) the extcm that dte time initially e.Ytahli.ncd in Jubpar-Jgnpn 11.5. i ut' this ,tgtv'~emern is cxaYtled ur extrndutl Ihnwgh nu t:ntlt ul the ArchihcL emnpeMa[k)n li')r anv .wa vtccs rendered during the aUttitk)n;4 peckxl of ttmC slug he compureU in nc~ manner sqt rhnn in Subparagraph i i.~.:. 3tn~Cth)M1 (;ust and anv ptiniUns Uf the CI alC til'ICIeLL Uf uthcrwite nut egnstructeU, trnnpe ~~ )n ri)r those porcn>ns of chr PiOKCt sha0 he p:tyabl the cxrcm ServiCts are per Formed on mt)se ptvuu '. n accordance wi[h the xneUWe >Kt forth .n Subpangr i.?.?. 17-JSCd un 111 the Igwest Myna tide bN w ncttoti' proposal. •)r I2J ~( no a,ch bid •u pmparal AY receive a mutt recent preliminary estimace of Construction C.JS t UclmieU estimate of t:unstturnon CaJSt for such por- 70,4 PAYMENTS ON ACCOUNT OF ADDRIpNAL SERVICES 10.4.1 Paytneats Dn account Of the Architects Addieiona! Serokes :ofd for Reimbursabk Expenses sha0 be mach monthly upon premttation ui the Architects stamment of services ren- deted Dr <:Cpen3R t[7CUtttd. 10.5 PAYMENTS WRHHELD t0.5.t ?lo acaucnons sha0 be made from nc~ .a[chitecYS com• pensarion on account uP prnalry, liquidates 6unaga uc omer Sums withheld from payment.5 ro con[raccors, ut un recount of the cost ofchanges +n the tWO<k other ettan those tpr which the Architect has been fotmd w be liable. 10.2.1.5 Expense of additional insurance coverage nr limits. 10.8 ARCHITECTS ACCOUNTING RECORDS including professional (lability 4uurance. regaetrad by the 70.8.7 Records of Reimbursabe Ex and ex trues er- Owner in excess Jf chat nurmaJly attics by the Architect and Pew P P ArehkecCs con3ultanu. ~ raining to .additional Services e * ~ shall be avail- 103.1. r ing able ro the Owner or the Owner's authorized representative at eq mumaily cnnvrnicnt ume5. ARTICLE 11 BASIS' pF COMPQJ$ATION The Owner shall wmpensate the Arhnitect a3 to0ows: )k 71,1 MY lN17WLP.1Ybl);:V7 of Dtr11ar51s shall he made upon ext:cvtiun of this Agrecmrnt and crtt8red It) the r)ancr'i account n final pavmcm. 11.2 BASIC COMPETISATION * 11.2.1 FqR BASIC SERVICES, a rkscrihed in Artwk 2, art! any tAhci +crviccs ;tntudrd in Mriclc 4 L v 7rJrt ttt l)J.)%1l xrvic,ny. Il'1Ylc 4umpens:Jtinn sha11 he computed as fnOntSn: //IRMI )NNLf qJ J' MQlryl/bWtUt, irry'/YWl1p %OrnltY(M/ sutx%, mldbrl)Mf .rI r4N'[M4}K,Y, Iwrf /Ir,YngY (MFWY M1, I,'tln4 (n,I1tt P/n/ .IM1N/nnU ~9 ,.nn/M1Y,.Vtl+,m •rrMY p. .t waax+t,rv.l y.b - inc. ~k :, NA aOCY1tlElfr 91N'• +)7ptYEN~~aI:InTEr:T .~a:ae£MiN\' • 4tlyaT($NTfI EDITION ~ .aya" • •91•)K' ntl'AMExII:An IN3TITtl'r1;gl Artr:UITP6"r5.i"ttNlWVtatK ~Wfrrlll;. V.`a4, WA3r11fYdTdN, V.L. 4aMM+ 8'141.1967 0 +~ See ateaehed amendmenes 05/09/2001 23:22 9785?68754 LO(yCE PRf]F~RTY PAGE 11 ' 11.2.2 WI«;rc cnmprmsachm n Ivsl(xl on a atlpulatt.~cl .ttm r u pxreentage of Cungructnm c:a]st, pnµcrc'xs p:lvtttpnt< I'nr l{;xk Rt,'r,ni<cy in a:ntt phau xtrall u)tal the 1'olluwing pcrccncagc^; rIF the local Ikrsic c;um~nvmum p:)yahcc: r O!xmr ,mr/rrvuw/ lwxaua m n(prngxrwr.I kNtYry)tatie Iksign Ph2vc: percrnt ( `Z.) ifu~l{ut IkvuAt/pmcm Vhaa:: ~ Twenty perttm Q0 751 4aro~ln(critm fh)cuments Phax: SiXty peramt (60 75) Bidding ur NvRolrath)n Ph•.tv~. (xrccm l ter.) t:unitnR:tkm Admin. Twenty percent (70 'x,) Total liasicLdmpsnsaciunc rant hundred pcrctnt t I tlp'r,~ I 17.3 COMPENSATION FOR ADOR7pNAl SERVICES 11.3.7 FUR PROJECT REPRESENTATION BEYOND BASIC SERVICES. a+ described in Par/gnpl] 5.3. cnmpc))sainn shall be arm puled as &Np>ws: Billed at current hourly billing rates at the time work is performed. 11.3.2 FOR AAO[TSONAL SERVICES OF THE ARCHITECT. u tsescrpbted itt uncles 3 and !?. other thou (I} Additional Prpiccc Represrntation, u desenbed N Paragraph 3 _). and (?) servtces Included in AniUe t 2 as put of Attditional Services. but e:eclWmg ser- vieB Of tdr)su(rants. compensadon shag be mmpn[ed as follows: 1llatwr /xu]r +y cxmwnsalrPn rile(w6MP nuq x/mgq mwnDfet r4 D/rnrt YanmmY Erpentt jot Ynrl[rPWr ar/d m/MOt•Rl, PxP ixelr JM Pn/t[lyalr an9 rlPrr/Jl• wrplmvrr. f rPgrMwd~ (MM)P rDRVx /Pn]rpr M Nb1lI> /)PnN'xlnr mHppf d tPmDwuxnow e0p11'. !f xKHfPN ) Billed at current hourly rates at the time work is performed. 77.3.3 FOR ADOIT1pNAL SERVICES OF ~ON$t.'CTANTS, including additional scn]ctunl, mechanical and electrical enginening services and those provided under Subparagraph ;.x.19 or it7entihed in ,ACdele F? as part of Adtticiuttvf Services. a mugiplc of one point One ( 1.1 !times the amounts trilled to the uchnecc for such servxeS. /xhvw/r SDa'S'1/x' ryyw+n/ nuuWbmc rx ANUir f!~ q rn/x.ryrl./ 77.4 REIMBURSA6LE-EXPENSES 11.4,7 FOR REIMBURSABLE ESPENSE5. as deurihed .n ParagCPphi 01. and am~ rather hems incturkd in Anick 1? as Rcimbwsablc Expenses. a mahiple of one point one c 1 )times [ne e~prnses mcuned by the uChitea. the Architect's cmpk)vccs and Con.4Ultanlr in thr iMCtCSt rat' the Pn)jeCt. 77.5 ADDITIONAL PF7QVIS~NS 17.5.7 IF THE B(SIC 5ERY7C&c Co~trrd by thLy Agreement have nvYt been completed within nine ( 9 ) rt«PtthS tg' chc date hermf. thn)ugh no Cavh of chc NChitecr. exeenrk)n of ttte Architect ;v Servlety Ixyt]od that time sh;dl be lUmper4latCU 15 pn>videU N SuURua{tnPhs 1(). i_1 anU F 1.{.~, 11.5.3 !"aymencs arc due and (ztyahir thirty l 30 1 days from ene Uaw of the Architca-n invutcl:. Amounts unp-nU thirty ( 9D )days alien the mvull:c date shall betf interelt n the t:Ue entered hcWw. ql' m the ansenee thermf m tM te)pl rate txcvailin(; Gum time « 1 tune m the pnna;ipa{ place of hlnmcss of the Architect. (Ir/.w•./ rxir IM nnrmx/ nCntrl nym / lZ per IDOnth_ //hare buy urw mwxrmmis nxWr xx• hiJMUI ]'nrtN rn /:]nxx)I Aa/. nmW/nnwlr ww xx.W .xmuxuw t+aJlt bury PIW r.rlxr nwrdxluxa. w .Pr• 1 wnxv ..um nnxi la5'I a flRwr(NI (NtwM .Q IMirlry~, xx• Nµ'an/xrr xf llx• rMl11Y'l xnY aVMa9.t1r'n-111YN w(/MiI I{M ~aliW rM 11/ xn> firynnl'lfnr .tIRY.'IJr(' 1(9WI nW'Itr.iMpIIP rM.iIMNI1ICrl x'UI~ qY/4M W .1f/PIxuF, ~w' mrxryll<Wxw; trawl nlwa n}wrMflx(I nYlurrenx+r4' abiN xY nnlrnl Wa'lmxM ur xnnMrt.l AM pOG{IMl11T alN ' r1vMV,A-wPlln7eCT .uia[fMPJrr • PO(IR1rliNT11 RnITK)N • wlwx • T1IVP' 9 0747'790T 'rb F. wM1r@R«:wN tNSTtTt rrF. <]F wtet:1111•NYT%. r15 Nl`wf YOPtt wv):Mll:. N m., uvwStllN(iTOn. D t:. !txnP. 0510912001 23:31 9765268754 LOCKS PROPERTY PAGE 09 Sasaki Associates, Inc. DORltp1IBR'S ARCBITECI LETTER tags ibo We tutther agraa to tertity to yoa, at the coapletioe of the Lproveaante, thae to the bees o! our kaowlsdge sad ballet as eat forth above, the came Nava been completed is accordance wish the pleas or to Sadiesta anp malarial deviations thezetra Mhich have case to our atteatlon during the course o! construction. iie also agraa to prompeiy aotity you is writing of such deviations when ebaervad. You shall also be entitled to use ali plane, specltleationa, ~dzawinge a~ any modillcatione, additions, ealargemeats or areenaiona tharaot prepared by us for the Improveaaaca without epee to you, provided that they are used for this pro~eei anly and we have bean paid for their preparation is aceordaaee with the Architect's Contract or you have praviausly advanced loan preeeads to borrower in respect o! amount owing to us !or such preparation. Vary truly your!, SASAKI ASSOCIA?ES, INC. m+eloauree: ~ List 'nL:Dsawi.aga -and Spteiticatiooa ~ ,-• 05(8912001 23;31 9785260754 LOCK PR~ERTY PAGE 08 Sasaki Associates, ~nC. "E%NZBI? A" Plirurfnµ: MCAi1M1Ure r l.UrlSrdpe ArthileclUre t Urltan Desiµn Gn'ilEnpinlNinpfEnvinulmemal5aavlcy`s Borrewr'• Architect'• Letter 71-a Ohue Nanhattaa beak (N.A.) 101 Park Avenue Nw York, NY 10001 Att: Reai Freata Pihanea Re: Premises: Improvements: Borrwsr: Contract Date: Coacract Nork: CNB Loaa No.: Oaatleaan: We are the architectural or engineezing firm respoasible for pesfosmiag the contract 41ork described above for borrovei uadar a contract Cthe "Arehitect'• Contract") catered into •a ot:ehe Conezact Rate sat forth above. Ia consideration of your making a lose to Dorrwer to lSnanca eonttsuction of the Improvements, w agree chat la the evene Of a default by 8orroaer wader the Architect"s Contract or any of its lose dacumanta with you, we shall, at your request, eoneinue petfotmaace on your behalf uoder the Architect's eontrsct in aceordane• rith the terms tharaoi provided that (a) at the time of such requut vs have than Dean paid in accordance with the Architect's Contract for our services eo data or, i! not, thae you agree to pay us an amount equal to the ameunt then owed us uoder the Architect's Contract leas the aggregate ameunt o! any_advaacss o! loan proceeds made to ehe Aorsouar in respeee o! such services and paid to tht Architect and, (b) ue ere reimbursed in accordance with said agreement Eoz all service rendsred on your behalf. We certify to you that, to the best of our knwledge and Bella! based upon iaveatigation consistent with generally aecsptad standards o! profassioasl practice applicable to a project in ehe greater Beaton area of the seeps o! ehe subject project, the plena and specifications scheduled below (eolleccivaly the "Plans") for the Improvemantt conform to and comply with all applicable building, enviroameatal, atological, landmark, aubdiviaan and coning codes, lays, ordinances and regulations, imposed by all governmental authorltiea having jurisdiction over the Isprovements and the Premises. , 64PksstmStreel.Wafertolvn,Masuciwsens02t72 617/926)300 Tetea92l2a7t arr~`rt4rtKi•drt"tvrf9roMV.rrd,Cur.dG.ra+.tlrmrf.r"fl-"~r itlS•nglttJa t't:i fan atl'InW }Ir.t't. C.oild>. {V~.P ~S`Ifl :~ ;.y ~: `/ tilt{ ,05/89/2001 ~.1dAY-;~-pi 23:31 reu :2:03 9785268754 e~ N3BS CROIILEY LOG1C< PRIJPERTV FAR NQ Sib 774 3153 PAGE 01 P. SILVER SPRtNC EI~K.INEER'S SERVICRS pert ~ Pam t: ProjtU tonststs of permitting, design and engir~ing developmern of a 400,000 SF warehpuse situaoed on a 4&acre parcel, subdivision of a TO•acre that as shown on Plar~, design of JUe~wndra drive, tndudieg but rat limited to relocation of prriteigen Run, al l a shown on the atmched plans. Aett••(A_ 2 dfF~ Ap+ is mner+ded and srmntemeeted to include the following agre@ment of the parties. ENGINEER has previously provided or shall provide Basic Services as set forth below. PJRY~ Work EnglneerhaspreviouslypreparedLandpevekipmerttandSubdivhionPlansdated _. The previous owner, DiSarNO and the Township has agreed to certain changes as outlined is the settlement llgreemenl dated ,and in particular the Township's torrrment letter dated Engir~r has reviewed Taarnship Settlement Agreement and Township cwnment Ireter, Engineerackrtowltdgeslhe following resorts and studies have bean completed and that the following 11st n a complete Ilst of alt reports previously prepared and furnished to pNrner. • Hydraulic and Fltwdway Relocation Study prepares by MRG ~0• • Fisher Stormwater Repots prepared by RJ Fisher & ,Associates • Topo/8oundary Survey prepared by Engineer represens that Engineer has prepared above referenced drawings and that such list represents a complete Ilst of drawings, skies, reports prepared for Triple Crown, and presented to Township. Errgirreer adtnotvled~s receipt and possession ~ previ0uSly prepared topa/boundary surveys and that such surveys are acceptable to Engineer in their present co~tion• In accordance with Agreemem between DiSanto and Owner, DiSaMo has assigned all of DiSartto's dgFMs, dtk and interest in said docwnents to Owner. Engineer adrrawledges and conseMS tb assignment of Triple Crown Rights, title and interest in previous drawings and repoAs prepared in 1990-1992, by way of assignment dated sun. tw'^a.NMI~•rr'+ srr•w-_sm 85/89/2001 23.31 9785260754 LOgCE PR~ERTY PAGE 02 .,NLt'i-!!~-ai 1HU ]L~U4 tf9 ft5tl: 4kU6Ylh't I+RX ftU. y'IH ;''?4 ?i~tl ~'. Y Page 2 l~1!)f9;~ • ,Prepare revisions to Lid pevelopment Plan dated in accordance with the SMtlement Agreement dated and 3iiver Spring Township Comments .dated . to sutxnit to Silver Spring Planning Commissbn. Prepare -evisiotas to Subdivision Plans dated in accordance with the Sedlement Agreement drAed and Sf Iver Spring Tovmship Comments dated _,, m srd~ma to Silver Spring Planning Commission. • Prepare revisiore ro Erosion and Sedimentation control plans as outlined above and m~e application to the County Conservation OisMct for review and approval. • Attendance at aIB necessary Silver Spring7ownship Plann)ngCommission nu~ings and Board of Supervisors meetings. • in acconlence with reVlsed plans, prepare a Stom-water Management Reptrrt, including design of ~amwater management system. + PrsRran: appkcatlons for s sewage facilities planning module as necessary. (Silver Sprmg Township authority, County Authority and City of _____~„~). • Prepare applicadons for an t~DES Permit which includes the PA Historical and Museum Commission. • Assist and/or coordinate with Gannet Fleming on Floodway Relocation Study. • Updase boundary survey to AtTA Standards • Auist and/or coordinate FLOP application. • Prepa-ation of a landscapirtg plan by a Registered landscape Architect in confomraneo with municipal ordinances. • Preparation of a site lighting plan. • Engineer will attempt to produce a design that balances the eanhwork. + The Arcfiited further agrees tOldentify, apply for and obtain all permits, approvals, or reviews required by any gtlvernmental errdty necessary torthe above referenced work to be compteted. Corxrtruction DoCUmintf • Subsequa-t to approvals, prearare construction drawings in accordance with rim above described revised plans showing all neceuary informattar for this project ~ foilaws: Site pevehrpmertt Plan. Grading Plan ss...spn~ t~ng~neer~swkgsar 05/89(2801 23.31 978526875A 1f3C9CE PROPERTY PAGE 03 wn, :U u; luv ~G•U7 i:W nJDa 4hJflYC1 rMd IYJ, .yip Ht ji90 C, 7 Page 3 - Utility Plan (storm, sanitary, water, gas, electrtra. - Erosion and Sedlmerttetlon Control Plan. - landt~rrg ami Ughdng Plan, r - Detaih and Utility Profiles. - Drawings will Incltrdesary specifications. • Develop these plans in conformance with the applkabte munlctpal ordinances. • AtMrtd local design coordination meetings as this project progresses. • Make avef table mylar plans in the AutoCAD drawing format for your uso. • Attend weekly eonstrt>ction coordination meetingc. • Shop drawing review as It pertains to the civil aspect of die protect. Ser:tices ITT included with thb tecdon are: • Perform a daffic impact study. • Setting ~ any missing property corne-s. Payment of any application, review, or recording fees. • Consauction stakeout and construction inspections. • As•built survey shat construction is complete. • Mlscellarteous environmental studies. Engineer shalt be respatstWe fo-the technkat accunxy of its services and documents rewking d+erefrom, and Owner shall twt be responsible far discovering deAciencles dtwein. Engineer shall oorreCt such deiiciencies wldtout therein. Engineer shall correct such deficiencies without additronal corrgtensatiat exeept to the extant such action is directly attributable ro deficiencies in owner famished infonnaNon. Add ha feBryylne uetaarip m 5erti~r 1O.S; If the Owner disputes in good faith alt or any portion of any ua0emertt hom the architect for Baste Services, Additional Services, or Reimbt>rsabk Expenses, the Oxmershall tbtltythe Architect in writingwithln twenty-one t3:1L days of receipt of the disputed statement of the nature of the d-sptrte. Such wrt7ten notice shall clearly indicate that portion of the statement which the Owrwr disputes arui shall Include a reasonably detailed explanation of the reasons for diluting such portion. Any statement not disputed by the Owner In the manner and within the time period set forth atoll be-paitf, by the Owner within the applicable period of time set forth M Subparagraph 6.7.2 and 6.2. t respectively. Thp Owner shat~ot ~ _.!Y+uired to make aav.nenr ro the Architect on a~i~x of arty amount disputed in good faith by the Owner in the manner and within the time period set torlh above until the matter in dispute has been resolved either by this parties or pursuant to Article 9. Arty amount so disputed shalt be deemed to be an amount not due the Architect under this AgrewneM until the matter is so resolved either by rite parties or pursuant to Amide sih..~sawae~ eat ,05(89!2001 23:31 9785268759 LL]CKE PROPERTY PAGE 04 •,MAY-ID-D1 THLr 12~D6 PN H5B$ CkOVf16t aAZ Nll. S7tl i74 3i'.ro r, t Page 4 9. If the resolution of the matter indicates that the ArchNecl is entitled to be paid all or any ponion of such disputed amount, the resolved amount shall be due and payable within thirty (3W days after resolution of the matter. Nahir~ contained in this Subparagraph 6.5,1 shall be deemed 4o waive the Owner's right to later dispute the basis of any statement aRer payment thereof has been made unless such dispute has been resolved pursuant to Article 9. In addRlon, as part of Architect's Basic Services, Architect agrees to promptly, upon request of Owner, execute and deliver to Owner's Construction tender a letter of urrdertak)rtg Ir the Coen attached herero as ExhlWt A. in addition, at the tune of closing of Owner's Coratrurtion and Perrrarrertt loan an the Propery, Archdect agrees to ceAify to Owner's Permanent lender that ta) the building and the Id have been designed so as to comply with all applicable zoning ordinances, rules and regulations of ell govemmental authoNties applicable ther~o, Ib) the lot is a separate legal bt subdivided in acmrdtmce with all eppNcable laws, ordinances, rules and reguiatiars dureto, (c} (to the beg of the Architect's knowledge, Consistent wRh its obligations under this AgreentenU, the Building and the Lot have been built in accordance with the plans and spe[Iflcailons prepared by Archtect and td) to the hest of ifs knowledge based upon reasonable and wstomary pro(esslonal standards in the architectwal industry, the Building the tot conform to and comply whh all ecological and envirorenental laws, ordinances and regulatiars imposed by governmental duthorltiab having jwisdiction overtire Project. Notwithstanding anything to the contrary conlairred in Article 12 of thk Agreemerk, the Owner shah also have Nre right to as8lgr thh Agreement to any affiliate of the Owner or to ~,y lender providing firsarrcing for the Project provided that: ta) The owner shall remain Ilable to the Architect for all of the Owner's obligations under this Agreement arising both prior and subsequent to the assignment; tb) The Archlteet shall be ergNled to rely on the assignee's written notice to the Architeu that an assignment has taken plxe; and (c) As of the date the Architect receives notlfxation in writing hom the assignee That an assignment has occurred, and thera(ter until oompletfoh of the Architect's services wider Ntis Agreer-uttrt, the Architect shall be entided to look solely to the assignee for al Instrudtons, decisions, approvals and the like, without regard to the Owner. Aprj the tollowirlg p~ranh to Section 8.3: This Agreement may alw be terminated by the Owner at wilt upon at least seven (~ days' written rmtice to the Architect, In such case, the Architect shall be comp~ensaled pursuant to the provisions of this Agreement for all Qasic Services and Additional Services performed and Reimbursable Expenses incurred to the date of termination, together with reasonable demobNlzatlon expenses aaually incurred by the Architect on acrnunt of such temrinatlon within the first two weeks following receipt of such notice. Suvatpney,~[~~uenservbe~ s.m 05/09/2001 23:31 9705268754 An~'t4"U! gnu rt-U. fx rN6~ bAUilLtl ~~ PRCWERTY PAC 05 rna nu, yra rli .715a r. Page 5 The Mchitect represents, covenants, and agrees that the professional services will 6e performed in a manner cwvsistent with that level of tare and skill ordinarily exercised b1' members Of the architectural procession currerNly prectking under similar condRions and circumNaturs. The Architect s that Fre wi{I use the level of care and skill deigned above so that the construction documents prepared by Architect concorm ro ail publMhed governmental regulations, s-iautes, codes and ordinances to the bust of Architect's ability, knowledge, information and 6eliaf. sa.,so~e~sa~wste~wca soy 05189!2001 23.31 9785268754 LOgCE PR~ER7Y PAGE 06 xr aCi 7S 10•r)~ rR JPm lrgl,MtMIwC nuawl Jac J_S GaJYJ .u Ja J, oJ{OO,~,r r .yY•w Amarromant a the atendard Feria of Agraemam 0atwaan Oemsr end Archdect - AW Ooptmw+t 8141 ARTICLE 12 OT-IER CONOfl7ONS Op tlER1/ICE3 12.4 ~ - a tad in its smeary and raptacad as ldfowe: t2.4. f ArchilOCt ehaR carry and msertain at its otw.t cast nAet such oomperr~s ae they ere raseonsoty aocep9abk 10lTxner ~ rtaelseBiy Iiabeity ktwrancs (which shall ingv~i w a minimum the reVUlMt1Nh1B ~ set sotto batew) durirq are term of this AgraemeM, ra damages caused or eonhibuted M trSr Arcfi, Mtd Mstek~,g Argatect apahtst claims whkh may arise cut of result tr'W11 Arohittwt'B OerfdrrMtlCe or tailun b perform fhe 9ennos haeundar. a) Workers` Compensation end Etryroyer'e Li~ilitY Insursntt a the htd etttent as required by applfpbie lavr, b) CommerpM Qenerai liabtilpr Covat~e, including CentraduM Llapegy and Pelsonal liabVlity Coverages, stud namigt Owner, its ParMps, la aftdlates and Met reepad'wo oteean, emAtoyeee ~ s~nb and oe+ae Onignele0 by Owner and Owner's tnorl~geee w Addltlonal IttsunWs, in rat lees Man dts following ar~tnta: 80diyr Injury ettd Property t)almage Lietrsly $1,000, e1Ch occurrence $1,~pt~ aggfegate c) Comprohensiw Automobile Llal~ity bteurenca covering aN owned and nonawnad and hired vehicles Indudatg are kMditdl amt untoading Meru with gmire o/: t3odity Injury and Property O+>rwge liabiYgy $1,OgQ,Cpp each gcddent AN rteft linbelty ktwranCS ahae irt4lYde as conWtron that h re primary and that arty wch inNpanCe maiMainsd tTy Owner and arty oMer Ad0ilienei Mwrad M exwee and non-contrdwtory, 12.4,2 fran afM after tM dam t»reol to a phial of at least Mrtae (3) years fellev4rg lhs date of euluantlel completlon of eu Project, ArchAeeta Shale malnlein a non•Wnealr191a mum-project arras end onNaeloro imurance pelky_itrxNing Architect a,d its corsWtanb end any oM~ Prplaseiorrali engaged oY them with limits of blsrr!ance of at least FNe Minion and t10/5o0 (lallera ($ll.t~0,0~) per cladm tirnt In the agpropete with respect t0 deans 'natle against Archlfeet, its con®Wtsrue, aml other profe6Nonals angaped try roam for rtegiigent ace, errors w nnieetona or or attributattts to Atchltaa, es coaunlan~, and oMer profeerionats errpeged by Mem in Mo petformwree of Sarvitt In Conaeedon wiM the Projad, aududetg prior ads, which emovnt 4heN rat, however, be conetnted tt a Ilmllstion of the IvAiihily 01 Ardtdeet wtM reaped to the earvius to be psrforlned under a purattttt to ads AgraameM Tha insuranw herein provided may snow for a reasonable deduclak up tc f25,~0. 12.4.3- Architect wolves sal rlgtth d BCtlon and 4Utrrdgaddn against Owner to the extent aT any insurehCe rettvwlw grol may bs obmtned by Arohi~tlor damages caused by fire or oMM pent dowrod by insurahfNe, excpt even rights tta MehReot may have b proceeds et inawnee bald ny any otlMr person ~ trustee or otherwise in behdf of Archiled. Amendmatl Addanovm.doc 05/89/2881 23;31 97852b8754 LOCKS PROPERTY PAGE 07 ~~ • -~~ u~ ~~ ,v+w rrt .•r,o ~•v~wv.in.C wtrn.~ .]lG 7aJ G17b IU y7YRAtGii~f~ Y.lAi~ t2.a,4 tr;cept fa the rNplipence of any oP Vis eMarrrlBroe (herelnatter deAnaa-, Archikct hereby agrees b protect, dsfaxf, indemnay and tad teas Owner. end ns t>artnera. end that/ raapadlre viAcera. aaggayesa, epanb eeM eiss~ns (toltocdwiy, same wlrod'Mdemmsea') hom and aplainat all Ion. d~ a7ta exponsea, adtapnp, but not 8miteQ m, reaearebis attmr»ya' roes. calm COete an0 ea> a which resWro fYom ArchhiLeePa nepllpMR perfamenoe of prePMa0t~1 e6ndole a' wronplW acre under ale ApreanMt. TnA IndemniP~atlon shNl Irxk,~, txR not be limned 10, ~ to deebul~on of prpaefty, Metudinp bsa o1 use thereof, soda because ~ bogey MJury, permr~ Injury, Sldcneae or d!saaee, w death suaMlned try anY verwn, Such odlpationt of Arddtp6l hareuntlef shall not be limlrod by dro svailabluty, flmhs, a tovsrape of Msurance carried or reyullad troreb+, rX faquUeA by law>o ba axried. 12.4.5 In me evert drat AfdUtett hie ro oflect a s~tnet;~ the reatrirad Ineu7anea, Owner may prodre dfe tuale or pay the Oremtum tnerertXa, in whll;h saN ero cat shall be etuepad b Ardiiroct a t>d from paymenro da to Aratefact. MandmeM 4ddendumdoe ~* TOTfri. PAI~.05 wk Sent 8y: R.J. Fisher & Associates, Inc.; 05!?5f 2001 00:55 9785268754 717 774 7190; Jun-25-01 t_OCKE PROPERTY LOCKE PROPERTY COMPANY 46 CENTRAL STREET MANCHESTER-BY-THE-SEA, MA 01944 June S, 2001 Mr. Bob Fisher R. ). Fisher & Associates 1546 Bridge Street New Cumberland, PA 17070 Dear Bob: 2:42PM; Page 3 PAGE 02 In response to the messages you left this past week, 1 have the following comments. The problems and obstacles 1 have with your past and future involvement in this project are not limited to your refusal to enter into a contract. As you know, you have repeatedly failed to follow instructions, you have acted without authorization and you have felled to perform as initially agreed. • You were asked to send plans to contractors for pricing but in most cases the plans were not sent on a timely basis and the plans sent were not the complete set. • You were asked to prepare a schedule but the schedule prepared was incomplete and inaccurate. After reviewing the multitude of omissions and errors with yau, you were asked to update the schedule. To date you have ignored this request. • As far back as January, and as recently as April, you were asked to prepare a contrail in ehe AIA format or FJCDC format. As I have explained to you on numerous occasions, the document you refer to as a contrail is woefully incemnletp and does not meet the requirements of my construction lender and financial partner. A compj~, contract is needed by my financial partners and lender. To date you have ignored that request. After not receiving a contrail from you, I spent significant time preparing a rnntract and sent It to you on May 9. Since that time you have ignored my request that you respond to it. You were directed to ineorporate the Township's changes outlined in the Settlement Agreement and to minimize any other alterations. In the course of our meetings and discussions on the scope of work, I emphasized how important le was to honor the terms of the Settlement Agreement and the risks associated with deviating from the Agreement, in particular, the risk that any changes outside the scope of the Agreement could be construed as a new plan in which case the Agreement would become void. Notwithstanding this directive and the associated risks involved, without notice or discussion, you pnsceeded to make a number of material changes to the plans. These changes included but are not limited to the location of entrance driveway and the size of the detention basin. In addition, you added a new detention basin to the south of the building. Your contention that the detention basin needs to be increased to balance the site is contradiiled by the reviews conducted by 2 site work contrailors. The addition of the, detention basin and relocation of the driveway rnnflicted with ehe terms of the Silver SprI~F{9her ~_ ,~ - ~I - ant By: R.J. Fisher & Associ2tes, Inc.; 717 774 7190; Jun-25-Ot 2:42PM; Psge 418 ~~. rw <uui uo: oa tl~tl~ZbHf54 LOCI(E PROPERTY PAGE 03 MR. BOB F15HEt2 JUNE 8, 2(101 PAGE 2 Settlement Agreement. Your failure to follow our specific direction has jeopardized the enforcability of the Settlement Agreement. You were asked to prepare a cover fetter to outline compliance and status of the 22 Township comments but the cover letter was woefully incomplete and difficult to follow. You were asked vn theee specific occasions to incorporate comments that Jack Hurley and i thought were necessary to address the issues but you refused to incorporate these changes. • You were asked to outline any and all changes made to the plans beyond those required by the Settlement Agreement and the basis for making them. t requested this due to the sensitive nature required to work with the Township and comply with the Settlement Agreement. Both )ack Hurley and I thought this would be very helpful in establishing a good relationship with the Town. Despite several requests, you ignored this directive. • You failed to meet one of the most important deadlines of the project. You were asked to incorporate she Township's comments artd resubmit a complete set of land Development and Subdivision Plans by April 12. On April 12, however, the day of the scheduled deadline, the majority of the plans were not complete and not ready for submission. You had 8 weeks to change the pans-more than twice the time most fond planners require to do a plan of this size from scratch! Your explanation that they were not needed was a veiled excuse to hide the fact you were unable to wmply with the agreed upon time frame. Your failure to comply with the agreed upon time frame Caused us to get off on the wrong foot with the Township, was extremely embarrassing to our group and may have effectuated the waiver of Certain rights we had in the Settlement Agreement. • You have repeatedly failed to keep me apprized of your progress on the project. As previously stated, you were asked to incorporate the Township's comments and resubmit a complete set of Land Development and Subdivision Plans by April 12. Howeve-, it was not until the day of the scheduled deadline, I teamed the majority of the plans were not complete and not ready for submtsston. Your explanation that they were not needed was a veiled excuse to hide the fact you were unable to comply with the agreed upon time frame. Your failure to inform me in advance that these omitted plans would not be ready for submission is inexcusable. You have madt revisions to the plans and submitted them to the Township without authorization. On May 3, the Township identified several changes that needed to be made to the plans submitted on April 12. Subsequent to receipt of the Township's letter, I reviewed the changes with Tim Mellor and asked that Jack Hurley and t be sent copies of the changes before resubmission, this request was ignored. Although it is my understanding the plans were resubmitted, neither )ack nor myself has seen copies of the plans. • You were asked to prepare a cover letter to identify the May 3'd revisions but the same refusal to cooperate and follow instructions surfaced again, this time with Tim Mellott. In the course of reviewing the proposed letter witFt Tim, )ack and Hurley and I requested a sever Sprin~F~eher gent 8y: A.J. Fisher 8 Associates, Inc.; 717 774 7190; Jun-25-01 2:43PM; Page 5/6 06/25;2801 00:55 9785266754 LOCKE PROPERTY PAGE 04 MR. 806 FISHER JUNE 8, 2001 PAGE 3 number of revisions which I believed were critical to the success of our submission. He informed me that he thought they were not necessary and would not make any additional changes. )adc Hurley and 1 requested copies of this letter but to date we have not received them. • You were asked one month ago to secure a quote for the insurance coverage required try my lender and partners including errors and omissions. To date you have ignored this requese. You have made numerous defamatory remarks concerning me and the Township that are less than constructive for the project. • In January, you informed Mark DiSanto the project was being held up because I had not authorized'you to start. In fact, you knew 1 had given you the goahead and had asked you to simultaneously prepare a contract. Your deliberate failure to omit the fact I had asked you to prepare a contras and begin work simultaneously leh-Mark with the inconed impression I was unnecessarily delaying the project when you knew this was not the case. • Several months ago you leh Mark with the impression that I was unnecessarily delaying the engagement of HRG as FEMA consultant. Contrary to what you told him, you were well await! f had requested changss m their contract which they had not responded to, that their proposal was based on development of 2 buildings, a plan completely Inrnnsistent with our plan and my requests to meet with senior HRG people to "establish" a relationship and review the work done 8 years ago had been rebuffed. Once again, your deliberate failure to omit these facts leh Mark with the incorrect impression I was unnecessarily delaying the project when you knew this was-not the case. • You recently informed Mark that Gannett Fleming was holding up the project. In fact, you knew and neglected to tell hIm that Gannett had been released, had requested information from fEMA and was waiting on FEMA to deliver the information. Again, your deliberate failure eo omit these fads left Mark with the incorrect impression the project was being unnecessarily delaying when you knew this was not the Case. • You have informed Mark on several occasions that you were not being paid promptly and that I had no basis not to pay you. You said this with the complete knowledge I had told you some time ago we needed a contras before being paid, that 1 viewed your 'proposal' as woefully incomplete and that the proposed terms and rnnditions, including bi-weekly billing were unacceptable. With respell to your comments in May that your invoices are approaching CSO days past due, once again you are spreading half truths. The invoices you are referring to were for work performed in April, which every other organization in the world would bill in early May and expect payment within 30 days. This is what t told you I would be happy to do when you give me what (need-a wntract. Hence, according to the norms of the business world and the scope of how we agreed to work, these invoices would clearly not be considered late. Once again, you've concocted a gross distortion of the fads by neglecting to tell people the 60day period you'refer to is based on weekly billing, something I never agreed to. Silver SprlnB flsAer x; ~c-nt ey: R.J. Fisher & Associates, Inc , 06y 5!2001 00:55 9785268754 MR. BOB FISHER JUNE B, 2001 PAGE4 717 774 7190; Jun-25-O1 2:43PM; Page 6/6 LOCKE PR~PERT4 PACE 85 • On repeated occasions you have made mtical and condescending remarks concerning the Township of Silver Spring employees, Board members, and consultants. The distribution of these half truths and rnmbative attitude toward the Township-a Township we need to cooperate with-reeve to undemeine our efforts and cause me to address issues that had you told the truth I would not have to waste time addressing. In sum, Bob, your level of performance and level of rnoperation have been miserable. Jack Hurley and 1 have repeatedly asked you to do things that we deemed critical to the success of this project which you have ignored. Time and time again, you have failed to perforr» as needed. Time and time again, you have failed to perform as directed. You are quite clearly on your own agenda. Quite frankly, your agenda appears to make it as difficult as possible for the rest of us on the project, It's interesting to note that out of the 7-8 organizations working on this project, that there's only one I am having trouble with and only one who through their actions indicate they do not want to be involved-yQtd, Evety other group-l;annett Fleming, Jack Hurley, Conewago, Lathers, Prudential, Carolan & Greeley and NAICIR-have been very responsive and happy to be involved with the project. With respect to your inability to perform and your lade of cooperation, at best I would say you are overworked. At worst, you are a huge pain in the ass to deal with and your ability to perform to the level of others in your field is questionable. in either case, the project cannot afford the continued disruptions and sour attitude you have displayed. Hence, I believe the project is best served without you. The disruptions you have caused are unnecessary and have had a very costly impact, both economically and to the schedule. Most important, your failure eo pe-fonn and your attitude pose a significant threat to the viability of the project itself, We cannot afford to take the risk of you making additional unauthorized changes to the plans or finding out at'the last minute that you are unable to complete a designated task on a timely basis, i.e., on schedule. I therefore agree with your initial statement that now would be a good time to s0op work and f disagree with your most recent statement that we resolve things so that you can finish the project. Sincerely, William E. Locke, Jr. WEl:cc cc: -lack Hurley AI Carolan Mark DiSanto BIII Gladstone S~Iver sprin~fisM1pr }. iii ~, , R. J. Fisher & Associates, Inc. t ~'~ ~` ~ 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 • FAX:717-774-7190 ENGINEERING,PLANNING, SURVEYINGBLANDSCAPEARCNITECTURE www.rjfisher.org FISHER, July 12, 2001 Sent Certified Mail No. 700 0600 0028 3893 2617 Mr. William E. Locke Locke Property Company 46 Central Street Manchester, MA 01944 Dear Mr. Locke, Your account is delinquent and we are informing you of what could happen should we decide to institute further action. Rfull payment is not received by R.J. Fisher & Associates, Inc. within ten days of receipt of this letter, R.J. Fisher & Associates, Inc. will begin collection procedures. When judgment is entered against you, you will have to pay the full amount of the debt, plus interest to the date of payment, in addition to all collection costs incurred. If you have any questions please call me at 717-774-7534. Please avoid additional costs by paying R.J. Fisher & Associates, Inc. directly at 1546 Bridge Street, New Cumberland, Pa. 17070 in the amount of $20,688.86. We have included copies of invoices and a statement for your assistance. Please remember if the total amount is not paid collection procedures will automatically be initiated. Please be advised that all plans and reports prepared to date for the Golden Triangle project are property of R.J. Fisher & Associates, Inc. and any attempt to use any information without my authorization will be prosecuted to the full extent of the law. If all outstanding debt is paid we will fully cooperate with whomever you choose to complete the project. Also be advised that your letter dated June 8, 2001 to me, which I did not receive until June 25, 2001, is considered slanderous to me. I would advise you to keep all future correspondence between us confidential to avoid any additional conflicts. This is an attempt to collect a debt and any information will be used for that purpose. S cerely, 1 l ''t , Robert J. Fisher PLS., PE. President Cc: Craig A. Diehl, Esquire, C.P.A. LJ Ifou~e®nm.~c®ucaum~vnmom ~.:i:: R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 • FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE www. rjfi Sher. org Statement DATE 7/11/2001 TO: Mr. William E. Locke Locke Property Company 46 Central Street Manchester, MA 01944 AMOUNT DUE AMOUNT ENC. $20,688.86 DATE TRANSACTION AMOUNT BALANCE 12/31/2000 Balance forwazd ],245.00 200032 Golden Triangle 7- 02/23/2001 INV #3622 3,000.00 4,245.00 I 02/23/2001 PMT -865.00 3,380.00 02/23/2001 PMT -380.00 3,000.00 02/23/2001 PMT -3,000.00 0.00 03/30/2001 INV #3693 6,475.59 6,475.59 04/13/2001 INV #3701 7,155.47 13,631.06 04/27/2001 1NV #3746 1,237.09 14,868.15 05/04/2001 INV #3756 1,546.86 16,415.01 05/18/2001 1NV #3779 2,989.41 19,404.42 05/25/2001 INV #3792 0.00 19,404.42 06/01/2001 INV #3822 493.54 19,897.96 201055 Golden Triangle Pa DOT HOP- OS/18/2001 INV #3780 790.90 20,688.86 CURRENT 1-30 DAYS PAST 31-60 DAYS PAST 61-90 DAYS PAST OVER 90 DAYS AMOUNT DUE DUE DUE DUE PAST DUE 0.00 4,273.85 9,939.42 6,475.59 0.00 $20,688.86 R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 • FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE www. rjf ishe r. o rg Invoice -- BILL TO -- DATE INVOICE # Mr. William E. Locke 6/1/2001 3822 Locke Property Company 46 Central Street - ' Manchester, MA 01944 P.O. NO. TERMS PROJECT ~ Due on receipt 200032 Golden Triangle 7 ~_- DESCRIPTION QUANTITY RATE AMOUNT Professional Engineering, Planning, and Surveying Services rendered during the time period from 05/26/01 to 06/01/01 I Project No. 200032 Golden Triangle 7 I * Prepare erosion & sedimentation control plans. * Coordination with PaDOT to setup meeting on permit. * Followup with Township on PaDOT issues. Engineer VIII 4 95.00 380.00 Engineer VI 9 70.00 630.00 Postage or express mail federal express 26.66 26.66 fee paid on behalf of client - 34.38 34.38 credit remaining $577.50 out of $3000.00 deposit I -577.50 -57250 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE I-1/2%PER MONTH AFTER 30 DAYS PAST INVOICE DATE. TO~~ $493.54 .~_... . max, ~:" ib" ~tT.- ". R. J. Fisher & Associates, Inc. s 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 FAX:717-774-7190 ~ ENGINEERING, PLANNING,SURVEYING&LANDSCAPEARCNITECTURE www.rjfisher.org FISHERS '' Invoice I BILL TO I Mr. William E. Locke Locke Property Company 46 Central Street Manchester, MA 01944 0 IN O1 CE # 5/2 5/2 O1 3 9 P.O. NO. TERMS PROJECT Due on receipt 200032 Golden Triangle 7 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. TO~~ $0.00 ¢; ~, ~~., R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 • FAX:717-774-7190 ~~ ENGINEERING, PLANNING,SURVEYING&LANDSCAPEARCHITECTURE www.r'fisher.or FISHERS 1 9 Invoice BILL TO Mr. William E. Locke Locke Properly Company 46 Central Street Manchester, MA 01944 DATE INVOICE # 5/18/2001 3780 P.O. NO. TERMS PROJECT Due on receipt 201055 Golden Triangle... PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAY5 PAST INVOICE DATE. TO~' ' $790.90 #~., i R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE www. rjfishe r.o rg Invoice BILL TO Mr. William E. Locke ~~ Locke Property Company 46 Central Street Manchester, MA 01944 DATE INVOICE # 5/18/2001 3779 P.O. NO. TERMS PROJECT Due on receipt 200032 Golden Triangle 7 DESCRIPTION QUANTITY RATE AMOUNT Professional Engineering, Planning, and Surveying Services rendered during the time period from OS/OS/Ol to 05/18/01 Project No. 200032 Golden Triangle 7 * Client consultations on site plan issues. * Coordination with Township on sanitary sewer pumping station issues. * Revisions to Subdivision Plan per Township comments. * Revisions to Land Development Plan per Township comments. Engineer VIII 6 95.00 570.00 I Engineer VI 31 70.00 2,170.00 Mileage mi. @ $0.345/mile 12 0.345 4.14 Prints L00 /each 204 0.64 130.56 fee paid on behalf ofclient -Johnson Imaging 34.38 34.38 Postage or express mail 1.39 1.39 Intrest on Past Due ACCOUnt.55 days ~ ~ 78.94 ~ 78.94 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-I/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. TQ#a ~ $2,989.41 R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 • FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE www.rjf isher.org Invoice BILL TO Mr. William E. Locke '. Locke Property Company 46 Central Street Manchester, MA 01944 IN 01 E # SD 2001 3 6 .___ P.O. NO. TERMS PROJECT Due on receipt 200032 Golden Triangle 7 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-1J2%PERMONTH AFTER 30 DAYS PAST INVOICE DATE. TQtC1i $1,546.86 r°,.' ~~, R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 • FAX:717-7747190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE www. rjfisher.org Invoice I--BILL TO I Mr, William E. Locke Locke Property Company 46 Central Street Manchester, MA 01944 DATE INVOICE #- 4/27/2001 3746 P.O. NO. TERMS PROJECT Due on receipt 200032 Golden Triangle 7 DESCRIPTION I QUANTITY RATE AMOUNT - Profcssional Engineering, Planning, and Surveying Services rendered duirng the time period from 04/14/01 to 04/27/01 Project No. 200032 Golden Triangle 7 * Client consultations on site plan issues. * Consultations with Township on sanitary sewer options. * Revise pumping station location. * Begin erosion and sedimentation control plan and coordination with Conservation District. CAD Design III 0.5 40.00 20.00 Engineer VIII 4 95.00 380.00 Engineer VI 10.5 70.00 735.00 Mileage mi. @ $0.345/mile 51 0.345 17.60 Postage or express mail 39.80 39.80 Interest on past due - 76 days 44.69 44.69 I PAYMENT DUE UPON RECEII'T. LATE PAYMENT FEE 1-112%PERMONTH Ah"I"ER 30 DAYS PAST INVOICE DATE. T~ta~ $1,237.09 R. J. Fisher & Associates, inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 • FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE www. rjfisher. org Invoice BILL TO DATE INVOICE # ~ Mr. William E. Locke 4/13/2001 3701 Locke Property Company 46 Central Street Manchester, MA 01944 P.O. NO. TERMS PROJECT Due on receipt 200032 Golden Triangle 7 DESCRIPTION QUANTITY RATE AMOUNT Professional Engineering, Planning, and Surveying Services rendered duirng The time period from 03/21/01 to 04/13/01 Project No. 200032 Golden Triangle Subdivision & Land Development Plans. * Client consultations and meetings on site plan issues. * Prepaze Final Subdivision Plans. * Prepaze Land Development Plan. * Prepaze sffeet and utility plans and profiles. * Prepaze stormwater management design, calculations and report. * Coordination with HRG on flood plain issues. Engineer VIII 21 95.00 1,995.00 CAD Design V 4.5 55.00 247.50 Engineer VI 50.5 70.00 3,535.00 ~AD Design III 11 40.00 440.00 '. Landscape Arch. VI 5 70.00 350.00 Intrest on Past Due Accomt. 90 days 304.09 304.09 fee paid on Uehalf of client - 546 sq ft plain paper copy 57.88 57.88 Prints 1.00 /each 226 1.00 226.00 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. TQtaI $7,155.47 R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 • FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING 8 LANDSCAPE ARCHITECTURE www. rjfi sher. o rg Invoice BILL 70 DATE INVOICE # Mr. William E. Locke ~ 3/30/2001 3693 Locke Properly Company 46 Central Street Manchester, MA 01944 P.O. NO. TERMS PROJECT Due on receipt 200032 Golden Triangle 7 DESCRIPTION QUANTITY RATE AMOUNT Professional Engineering, Planning and Surveying services rendered during the time period from 02/24/0] to 03/30/01 Project No. 200032 Golden Triangle 7 * Client consultations and meetings on site design issues. * Prepare preliminary sketch plan. * Prepare preliminary grading plan. * Evaluate grading and stormwater issues. * Revise site sketch plan and grading per clients comments. * Field survey to check of storm sewer elevations. Engineer VIII 22 95.00 2,090.00 Engineer VI 54 70.00 3,780.00 Landscape Arch. VI 0.75 70.00 52.50 2 Man Survey Crew 2 100.00 200.00 fee paid nn behalf of client 40.07 40.07 Intrest on Past Due Account. - 103 days 313.02 313.02 PAYMENT DUE UPON RECEII'T. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. TOta~ $6,475.59 R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-7747534 • FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPEARCHITECiURE www. rjtisher.org Invoice BILL TO Mr. Witham E. Locke Locke Property Company 4 Running Ridge Road Manchester-By The Sea, MA 01944 DATE INVOICE# 2/23/2001 3622 P.O. NO. TERMS PROJECT Due on receipt 200032 Golden Triangle 7 i ~ DESCRIPTION ~ QUANTITY ~ RATE ~ AMOUNT Pmfessional Engineering, Planning, and Surveying Services rendered during the time period from 02/23/01 Project No. 200032 Golden Triangle 7 Deposit on project 1. .viENT DUE UPON RECEIl'T. LATE PAYMENT EEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. 3,000.00 ~ 3,000.00 Total $3,000.00 ,_ ~ ~ ~: R. J. Fisher & Associates, {nc. 1546 Bridge Street • New Cumberland, PA 17070 717-7747534 • FAX:717-774-7190 si~~ ENGINEERING,PLANNING,SURVEYING&LANDSCAPEARCHITECTURE www.rjfisher.org Statement DATE 1/16/2001 TO: Mr. William E. Locke Locke Property Company 4 R~'^nin~ Ridge Road Manchester-By The Sea, MA 01944 AMOUNT DUE AMOUNT ENC. $1,245.00 DATE TRANSACTION AMOUNT BALANCE 12/31/1999 Balance forward 0.00 200032 Golden Triangle 7- 10/13/2000 INV #3384 865.00 865.00 12/29!2000 INV #3529 380.00 1,245.00 2- 3-07 PAST DUE PLEASE REMIT CURRENT 1-30 DAYS PAST 31-60 DAYS PAST 61-90 DAYS PAST OVER 90 DAYS AMOUNT DUE DUE DUE DUE PAST DUE 380.00 L_ 0.00 0.00 865.00 0.00 $1,245.00 ..~ ~ ~ i R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberfarni, PA 17070 777-7747534 • FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE www. rjfisher. org Invoice BILL TO Mr. William E. Locke Locke Property Company 4 Running Ridge Road Manchester-By The Sea, MA 01944 DATE INVOICE # 17129/2000 3529 P.O. NO. TERMS PROJECT Due on receipt 200032 Golden Triangle 7~1 I DESCRIPTION I QUANTITY RATE I AMOUNT Professional Engineering, Planning, and Surveying Services rendered duimg the time period from 11/13/00 to 12/29/00 Project No. 200032 Golden Triangle 7 ' Client consultations and meetings on site plan issues. s Research on grinds pump issues and conti-altations with Township engineer on feasibility. Engineer VIII ~ ~ 4 ~ 95.00 ~ 380.00 a~3 oI T fENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-_ _ /• PER MONTH AFTER 30 DAYS PAST INVOICE DATE. ~Q{~" ~ 5380.00 ~a i R.J. Fisher 8~ Associates, Inc. 01Po8101 Time by Job Detail All Transactions Date Name Billing Status -L~iceP~ty Qompany:200032 Paldert`rriangfe~-- Engr. 8 1 1 /7 3120 0 0 Fisher, Robert... Unbilled 11/15Y200D Fisher, Robert... Unbilled Total Engr. 8 Total Locke Property Company:2lbtXi2Goiden Triangl TOTAL Duration 2.DD 2.00 4.00 4.00 4~1V(i~ 'i1~.5 `jlne'1~ ._, g R. J. Fisher & Associates, Inc. ~ 1546 Brid a Street • New Cumberland, PA 17070 ~¢ 717-7747534 • FAX:717-7747190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE www. rjfisher.o rg 1t7VOfC@ BILL. TO Mr. William E. Locke Locke Property Company 4 R' ~ e Ridge Road Manchester-By TLe Sea, MA 01444 -:-~-1 - DESCRIPTION - Professional Engineering, Plann~nc and Surveying Services rendered duirng the time period from 07/01/00 to 10/13/00 Pmjed No. 200032 Golden Triangle 7 • Clieat consultations aad meetings. • Followup on prior plans and provide prints to cfient and attorney. • Consider alternating layom options. ,. ~ :eer VlII i.._,_scape Arch Vl ~~33-e, _. R _-__ DATE INVOICE# 101I3J2000 3384 V P.O. NO. TERMS PROJECT Due on receipt 200032 Golden Triangle 7 ;.~.I QUANTITY RATE 8 95.00 I.5 70.00 AMOUNT 760.00 105.00 i.-. MCN1 llUh UYUN Ht':(:F1Y1. LA1~I::YAYtv11•:N~1'NfSE I-1/2%PER MONTH AFTER 30 DAYS PAST INVOICE DATE. T®~' $865.00 R.J. Fisher & Associates, Inc. 10"~0 Time by Job Detail Ail Transactions ®ate Name Billing Spurs Ou-atlon ~8 e~C~WnY~Z00082 ~ Go1denTriarrgleT Em~r T00 g/30l2 Flah~, Robert... Unbilled 2 ~ 000 1011012000 Fes, Robert... Fisher, Robert... Unb~7kd Unln7led 2.00 10/13/2000 Fisher, Robert... UnbNled 2.OD 2.00 Total Engr. 8 g.00 LAB 70N3/2000 Scaly, Thoma... Unbflled 150 Total LA 6 1.50 Total Lodre Property Company200032 GWden Triangl... 9.50 TOTAL 8.50 'e i W a w 8~0~~~0 NOOO O ~ IpIJJ npn~~pp NWNN~pp~ ~ ~ ~~~~~~~8~~~~Wp ~~p~~ S O S~~ S O O S~ O~ 0 0~~ ,m o, 33~3~33333~~3333333 ~333333~33 m ,p,m m m m m~ m R, Lp ~o m m m m m m m m m m m m m m Le T~ p O O oo oo pp O O S O O S~ p~p pp Opppp -p O G-G ss pp O ~O~~x~RR33~#A~ARR~3_ 3~_'.F R_.'S2R3R~ -i_i~~li i-_i-i-11~~-1-i-i-i-i~~1j1 _i1-I _i _I~_I ~_ 3 3 3 3 3 3 ~3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . WW~Ol 0o 0o QO W QOW WQO [o 0o [O GO 0o 0ommmmWWOI On On W 0o 0o ~~i ~.a ~n~a~~.nnn~.n~nna~° ~-~.~~in~nn~in (JON-'OA Jm AN~NA~NNWOO~JV pN AN NN OOOI~~Opp ONNIANOINWW S N O N N (Nli N N O~ O N N O~ N O N O N N O O N S N O O N N 3 m m ~ m m Aao ~1D•.mz 3. ~ ~ ooim n n ~~~ ° ~ mm' ~ 3 ~ ~ ~ ~ . ~ o ~~ ~ m ° ~ ~ of s o ~ -« ~ 3 ^ma w is is 8~~ g m m o 3 ,ga md ~ A ~ m w ~ m ~ ~ ~ mo ~~^~ ~ ~~'m m $ 3 ~o°~.~ 0 330' 'o. ~. m~`~3m '3.m S. N m S' ,. ~ ~ ~ m a ~ O ~, O S_. O ~' p ~ N m O f ~ m ~ f ~+. ~ a 3 a . s ~ c s o > ~ g m ~ > 9 ~~~, cA3 i3~N ' Q o°s i ~o~~~~oDx 0 m o ~ '09 ~ °' ~ `° o' 0 0 ~ ut ar W ccce c c c ~G ~`~ ~~~~c~c~c~ o z ~8 ~~~~zzz ~ m .'fl .'V AAA .~ .'~ ~ n 'S e 0 mW OoWmmW W W N W a 1° ~ ~ m m b v ~ ;A AO N OON NO NO pg Opp O O O N N N N N N O O m m a 0 0 N a L ~I -~ .~ a~ ~ ~~ ~ ~4~D .~i, ~ ~ q ~ d n 9 m m 0 s W f 3~~~~ f 3~~~ W P 3 N~~~ N f 3 t3 " 'p Q~ 00 ?I T T T T T T T T T T "~1 T T T T T T T T T T T T T m N N W 01 !ll YI fll (p N N m m m m m m m fp 0 (p N fp A N N~ N m N N O N N N N N N N N m m m m N 0 N AAAAAAAAAAA.'aAAAAAAAAAAAAA oQ o 0 0 oQ oQ oP oQ o~ 0 0 oQ oQ oQ o 0 oQ 0 0 0 0 0 oQ oP ~~~$z~z~a~~.z~z~~z~S~~~zz N~~~f~~t~. 13 f3N N~Ji UIN~~$~Nt` ~ ~g~~S~~~~~8~~~~~~g~ m m o' ~7~0~333~~33~333~33~3~ CmC - o-_o m m m m Gm_G Gm_G m_ pm_p m m_ m_ g y_ m_ o-_o pmp m R~RR~22RR~LC~~~~~~R22 Z _i~~~~~-iii-~1~~~i~1_i~~ m 3 3 3 3 3 3 3 3 3 3 3 3 3 330 3 3 3 3 sssgs~~QSQQS~s»~~~~.. mmao aommwmwmm mmaomaaowmmm_mmm wmmmmmmmmmmwmmwmmmmw ~ nnnn~ ~~ na ¢n nnnna B ~ ~ ~~ nan ~ ~ ~ ~ ~ ~ nn~aan~ S ~nnnn~ . . . . . . . . . . . . i i . . . m O 1pV W N N W W W W W N~ W W N W W N N N N N N N N N N O~+ O N W~ N W tli A WNN O~ W J~ A N~~ A O_ S O O O O O O O O O O S O S S S S S S S S S S S S O O N N 0 0 0 0 UJiO O N N~ N N 0 0 0 0 0 ° a ~ L° ~ m 9 ~mw ° ~ m m ~ m ~ y p , . . d = ~ m ~~nna ~ $ 'o ' ~ F ' m m m~c~~a~3 ~ . ~ F s m n ~ ~, ~°-n-^ n ° d a d m a ' -~-r~~n~36D ~nnm O : N ~' J A m ~ m o a a m vi ~ no =m ~m~n' m 'm m m m m 4 m °-' g'o ~ w d ~' o ~ - ° ,$~ o ~_°3'~m s 'o. m ° ~ 3 ~ ~, 0. ~ o ~ cm ~ ~ f o d o L ~ 97 3 ~' a~ W d ~ ~° N ` ~ M ~ Q A~ ~ ,r M 7 n 9 m m N 4 'a 0 w 1 N e m 'o O a Pppl W m° wm fN`D m N 13 m age N '~ c ~ ~3N O N y ~ 1 0 0 D ryW m~m 6 6 .p .~N jO j~~~NN~+f3~N ~ N xNn~ ~'~~;, N~~ °r~3n t ~ °~'d oo 'd ~ ~ os~~~y a ~ o o o d oW a m rn a (/l d)fn (p (n ~ TTTTTTTTTT ~ O O O O O C C c ry ~ N tl1 N T (ll OI w N N C C `G `Z'<`G `G S S S S S S S S S S N N W 0 0 N m W N N Z ~'~~'~'{ ~'~ ~~~ AAAAAAAAAA 0 0 0 0 0 0 0 0 0 0 a O O O O O d d 3d ~ d Q Q 6 Q0p~pp O' V SO' a ~a 3 a ~~ 76 . . ~. .~S ~~~~ W m~~~al Olmm W W ~ nnnnn ~ naa~a~ ~ ~ a . . . . m N d s N A N N V w N 0 0 ~ O O O O N O SON O w~ O O ~ 3 rr m m m m E F a: S S ~ ~ 3 ~. a as N N C C ~' m m ~ 3 m 0 a 0 w m O ~N pN pN pN pN Np pN pN~ O O 0000000000 , Z O m N N L N a~ ~ d ~ ~° "tea »°a'o w ~ d• ~. N n 9 d m m w DEC 0 q 2003 ~j' West Long LLc 105 North Front Street Suite 205 Harrisburg, PA 17101 (717) 233-5051 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., : No. 01-5477 Plaintiff v. LOCKS PROPERTY COMPANY, INC. :CIVIL ACTION -LAW Defendant DEFENDANT'S TRIAL BRIEF COMES NOW, Defendant Locke Property Company, Inc, by and through counsel, and files its Trial Brief in advance of the bench trial in the above-referenced action. 1. BACKGROUND. Plaintiff, R. J. Fisher & Associates, Inc. ("Fisher, Inc.") has brought this action for the non- payment of certain invoices for professional services that Fisher, Inc., claims to have rendered pursuant to an alleged written agreement between Fisher, Inc., and Defendant Locke Property Company, Inc. ("Locke Property"). Defendant anticipates that the evidence at trial will establish that, contrary to Fisher, Inc.'s assertions, the written proposal provided to Locke Property by Fisher, Inc. was never accepted by Locke Property and, therefore, there was no written agreement between the parties. Instead, as alleged in Plaintiff s Complaint, the parties had previously entered into an oral agreement for Fisher, Inc., to provide professional engineering and land planning services to Locke Property in connection with a real estate project known as The Golden Triangle Project situated in Silver Spring Township, Cumberland County, Pennsylvania. For at least a decade, beginning in the late 1980s or in 1990, the DiSanto family, owners of the project site, have been attempting to develop the Golden Triangle property into a commercial and/or industrial park but had met significant resistence from, among others, the Silver Spring Township. During that decade, the DiSantos had retained and were utilizing the engineering and planning services of Robert Fisher, P.E., and Fisher, Inc. Simply put, Robert Fisher and his company, Fisher, Inc., were the DiSantos' land development engineers for the Golden Triangle Project. In the early 1990s, the DiSantos filed a series of lawsuits against Silver Spring Township in response to the Township's disapproval ofthe DiSantos' developmentplans fortheGolden Triangle. In 1994, the lawsuits were settled and the terms and conditions of the settlement were set forth in a settlement agreement and stipulation (collectively the "1994 Settlement Agreement"). Among other things, the 1994 Settlement Agreement prescribed the requirements and conditions for future development of The Golden Triangle. Thus, any future developer, whether the DiSantos or others, would be required to comply with the 1994 Settlement Agreement as a condition to any subdivision or land development approval by Silver Spring Township. In 2000, Locke Property entered into a real estate agreement to purchase approximately 48.5 acres of land (out of a total of 100 acres) of The Golden Triangle from the DiSantos. In 2000, based on DiSantos' advice and Robert Fisher and Fisher, Inc.'s, representations, Locke Property orally engaged Fisher, Inc., to update and file the requisite land development plans - a Subdivision Plan and a Land Development Plan -with Silver Spring Township. Fisher, Inc., failed to perform his obligations under the oral agreement, for example, by failing to provide timely and substantive 2 information to Locke Property and by failing to update the plans as required by the Silver Spring Township and the 1994 Settlement Agreement. Considering these and other failures to perform, Locke Property terminated the services of Fisher, Inc. When Locke Property attempted to secure the services of a replacement engineer in order to permit Locke Property to perform its obligations under its real estate agreement with the DiSantos, Robert Fisher and Fisher, Inc. refused to provide any of the plans and work papers for The Golden Triangle project to any successor engineering firm until Locke Property agreed to pay to him the disputed amount of $23,293.71. Due to Robert Fisher's and Fisher, Inc.'s refusal to cooperate with a successor engineering firm, Locke Property was deprived of the ability to timely meet its obligations under its real estate purchase agreement with the DiSantos. In January, 2002, the DiSantos terminated the agreement with Locke Property, alleging that Locke Property was in default under the terms of the agreement. In response to Plaintiff's complaint, Locke Properly contends that Fisher, Inc., is barred from enforcing the terms of the alleged written contract since none ever existed. Additionally, Fisher, Inc., cannot enforce the oral agreement for several reasons as more specifically set forth below. Furthermore, Fisher and Fisher, Inc. breached the oral contract with Locke Property and breached the implied covenant of good faith and fair dealing causing Locke Property to suffer damages. 2. EVIDENTIARY STANDARDS. 2.1. BURDEN OF PROOF AND PRESUMPTIONS. Corbin on Contracts states that "Contract actions almost always involve and claim to pecuniary compensation or other reparation for a breach. It is practically always necessary, therefore, for the plaintiff to allege and prove both the making of a valid contract and its breach; he must show that the defendant came under a contractual duty, that it became immediately performable by the fulfillment of all conditions precedent, and that it was not performed. The burden is 3 I f k not thrown upon him, however, of alleging and proving that there has been no discharge." Accordingly, if an affirmative contract to perform a duty is proved, it is incumbent on the person bound to perform the duty to prove that the terms and conditions of the contract have been met. In suing on a contract to recover damages, it is sufficient to prove a breach, and it is not necessary to show that the contract was broken in its entirety. P.L.E.2d Contracts §469, at p. 477 (footnotes omitted).I See also, Brakemen v. Potomac Insurance Company, 472 Pa. 66, 371 A.2d 193 (1977). "The general rule that the burden of proof rests on the party having the affirmative of the issue is applicable to the actions on contracts; thus, the burden of proving the existence of a contract is on the party asserting it. Likewise, the burden is on the plaintiff to establish the terms of the contract on which he bases his claim." P.L.E.2d Contracts §501, at p. 505 (footnotes omitted). See also Idell v. Falcone, 427 Pa. 472, 235 A.2d 394 (1967). Further, in the case of an oral contract, a party must prove that the contract was clear and precise. Edmondson v. Zetusky, 674 A.2d 760, 764 (Pa. Commw. Ct.1996)(citing Suravitz v. Prudential Ins. Co., 261 Pa. 390, 104 A. 754 (1918)). 2.2. EXPERT TESTIMONY IS NOT REQUIRED. Several of Defendant's counterclaims and affirmative defenses include issues of Fisher, Inc.'s, and Robert Fisher's failure to provide professional engineering and planning services that conformed to the standard of care of a professional engineer. Since Robert Fisher's and Fisher, Inc.'s lack of due care is obvious and within the comprehension of the ordinary lay person, no expert All citations to the Pennsylvania Law Encyclopedia 2d Contracts is to the hardbound 2001 edition, unless otherwise indicated. 4 testimony is required. Cipriani, et al. v. Sun Pipe Company, 393 Pa. Super. 471, 574 A.2d 706 (1990). 2.3. DEFENSES. "Generally, to constitute a good defense to an action based on contract, the matters relied on must be germane to the cause of action pleaded and must present a legal reason why the plaintiff should not recover. It has been said that, in an action on a written contract, anything which would entitle the defendant to relief in equity constitutes a good defense." P.L.E.2d Contracts § 492, at p. 483 (footnotes omitted). 2.4. ADMISSIBILITY OF EVIDENCE. As in civil actions generally, evidence which is competent, material, and relevant to the issues is admissible in actions on contracts, although the court has discretion to reject evidence which is merely cumulative or repetitive. On the other hand, evidence which is incompetent, immaterial, and irrelevant is inadmissible. Accordingly, where relevant and material documentary evidence is admissible, including other agreements which form a relevant part of the circumstances leading up to and surrounding the contract in question. The acts and declarations of the parties, corroborative of allegations, may be admissible, and it has been held, in an action for a breach of contract wherein the acts of the parties were to be considered, that the court would consider latches as an aid in determining what might be doubtful inferences from conduct." P.L.E.2d Contracts §502, at pp. 508-509 (footnotes omitted). 2.5. WEIGHT AND SUFFICIENCY OF EVIDENCE. In an action on a contract, as in civil actions generally, the parry having the burden of proof must sustain that burden by preponderance of the evidence, and if the evidence is conflicting, but there is enough, if standing alone, legally to support the findings of fact of the court or the verdict of the jury, whether the plaintiff or defendant, the verdict, as a rule, will not be disturbed on the ground that it was contrary to the weight of the evidence. P.L.E.2d Contracts §503, at p. 511 (footnotes omitted). "These rules are applicable to questions involving proof of the existence of the contract, as well as of its terms. It has been said that an oral agreement must be shown by evidence that is clear, precise, and indubitable, and that the evidence to alter or bverthrow a written agreement must be of similar clarity and preciseness, and of a higher degree than if the agreement were oral." Id. at p. 512 3. DEFENDANT'S PRINCIPAL CONTENTIONS. Defendant anticipates proving the following principal claims and defenses at the trial of this matter: 3.1. THE ALLEGED WRITTEN AGREEMENT. The fundamental rule in construing a contract is to ascertain and give affect to the parties. Son Co. (R&M) v. Pennsylvania Turnpike Commission, 708 A.2d 875, 878 (Pa. Commw. Ct. 1998). To constitute a contract, there must be an offer on one side and an unconditional acceptance on the other. Accordingly, an acceptance, to result in a contract, must be unconditional and absolute, and so long as any condition is not agreed to by both the parties, the dealings are mere negotiations and may be terminated at any time by either party P.L.E.2d Contracts §26, at 51-52 (footnotes omitted). Further, "[a] reply, which purports to accept an offer, but which adds qualifications or requires the performance of additional conditions, constitutes acounter-offer, rather than an acceptance, and where one party offers a definite thing and anew term is introduced in the acceptance, there is no such meeting of the minds as will create a contract." Id. at 52. "On the other hand, where the acceptance of an offer imposes new terms, the proposer's assent to such new terms may be inferred from the fact that the parties thereafter proceed to conduct business under the condifional acceptance, and where a party makes an offer and assents to an acceptance not responsive to the proposal, he enters into a contract on the terms of the acceptance and is bound thereby." Id. at 52-53 6 Fisher, Inc., alleges that Locke Property agreed to Fisher's proposal when Locke Property signed the proposal on March 23, 2001. While the president of Locke Property, William Locke, indeed signed the Fisher, Inc., proposal on behalf of Locke Property, he conditioned his acceptance on Fisher, Inc.'s use of a standard form ASCE -American Society of Civil Engineers - or similar standard professional engineering agreement. Locke Property introduced additional conditions that constituted acounter-offer to, not an acceptance of, Fisher, Inc.'s written proposal. Fisher refused and failed to take steps to adopt the required standard form agreement, and therefore, rej ected Locke Property's counter-offer. Thus, there was no written agreement between the parties. 3.1.1. Fisher, Inc., bears the burden of proving the existence of the written contract. "The burden of proving the existence of a contract lies with the party relying on its existence." P.L.E.2d. Contracts §93, at pg. 118 (citing Viso v. Werner, 471 Pa. 42, 369 A.2d 1185 (1977); Edmondson v. Zetusky, 674 A.2d 760 (Pa.Commw.Ct. 1996)). Fisher, Inc., has the burden of proving the existence of the alleged written agreement. 3.2. THE ORAL AGREEMENT. Even though the parties entered into an oral contract, Fisher, Inc., cannot enforce the terms of the oral agreement for the following reasons: 3.3 THE CONTRACT IS NOT JUDICIALLY ENFORCEABLE DUE TO FAILURE OF CONSIDERATION. "When the consideration for a promise wholly fails, the promise is held not judicially enforceable." P.L.E.2d Contracts §66, at p. 92. See also, M.N.C. Corp. v. MG Lebanon Medical Center, Inc., 510 Pa. 490, 509 A.2d 1256,1259 (1986); See also In re Estate ofBeeruk, 429 Pa. 415, 241 A.2d 755 (1968)(failure of consideration is affirmative defense, and burden ofproof rests with party asserting such defense). "Failure of consideration is to be distinguished from want of 7 ~~'i consideration, which embraces transactions or instances where no consideration was intended to pass, whereas a failure of consideration implies that consideration moving from the obligee to the obligor was contemplated.... The failure of consideration occurs where the consideration bargained for does not pass, either in whole or in part, to the promisor." P.L.E.2d Contracts §66, at p.93. 3.4 FISHER, INC. FAILED TO PERFORM CONDITIONS PRECEDENT. Conditions precedent Where one party promises to perform upon a condition that the other party shall previously do something, or that a certain event shall happen, the doing of the act or the happening of the event is a condition precedent, and an action cannot be maintained for a breach of the contract in the absence of proof of the fulfillment of the condition. Separate actions may be maintained for breaches of the several items of a severable contract, and it is not necessary, in such separate actions, to prove as a condition precedent to recovery that the several other items of the severable contract have been performed. P.L.E.2d Contracts §491, at p. 482 (footnotes omitted). 3.4.1 Fisher, Inc. Failed to Perform the Conditions Imposed Upon it by the Contract Therefore He Cannot Recover For Any Alleged Breach By Locke Property. Full and substantial performance of a contract is essential to compel performance by the other parry or parties involved; and a parry to a contract is not bound to accept a substitute for full performance. Thus, it is the general rule that the right to recover on a contract is based on performance, and that one who refuses or fails to perform the conditions imposed upon him by the terms of a contract, and shows no excuse for such refusal or failure, cannot recover for a breach of the contract by the other party. P.L.E.2d Contracts §441, at p. 422, and cases cited therein (footnotes omitted). See also First Mortgage Co. of Pennsylvania v. Carter, 306 Pa. Super. 498, 452 A.2d 835, 837 (1982)(discussing doctrine of substantial performance and party's obligation to fully perform under a contract). "In a bilateral contract, if a condition precedent is not satisfied, the obligations of the non-performing party r] are discharged; the party alleging the breach of contract bears the burden of proof that the condition was satisfied." P.L.E.2d Contracts §446 at p. 431 (footnotes omitted). A party alleging performance of a contract as a basis for recovery has the burden of proof when such a fact is put in issue, and when the performance is to be to the satisfaction of the other party, the satisfacfion of the other party must be shown. Additionally, plaintiff has the burden of proving time of completion of performance in accordance with the terms of the contract. The burden rests on plaintiff to show the fulfillment of a condition precedent to his right of recovery. Ordinarily, the burden of proving a breach of contract is on the party asserting it. P.L.E.2d Contracts §501, at p. 507 (footnotes omitted). 3.4.2 A Condition of the Agreement was for Fisher, Inc. to Perform to the Satisfaction of Locke Property. A condition of the oral contract was for Fisher, Inc. to perform to the satisfaction of Locke Property in that Fisher, Inc. was required to prepare and file the Golden Triangle land development plans consistent with the 1994 Settlement Agreement and Township subdivision and land development ordinances so that Locke Property could comply with its obligations under its real estate agreement with the DiSantos for the purchase Lot "1" of the Golden Triangle project. "A contract for performance to the satisfaction of a party is enforceable, and where such a contract provides that work is to be done to the satisfaction of the owner or his agent, it must be so done, and if not, there cannot be said to be substantial performance. It is not sufficient, in this connection, to show that the owner ought to have been satisfied, if he has an honest and reasonable objection." P.L.E.2d Contracts § 447, at p. 432. See also, Jenkins Towel Service Inc. v. Tidewater Oil Company, 422 Pa. 601, 223 A.2d 84 (1966). The oral contract imposed on Fisher, Inc. the duty to satisfy Locke Property's desire, and obligation of submitting legally complaint plans for Silver Spring Township's review and approval. 9 ~~ _ ,, Fisher, Inc. failed to fulfill that duty. ""Inasmuch as [Fisher, Inc.] has failed to satisfy a condition on which [Locke Property's] performance depended, [Locke Property] was justified in terminating the agreement." 223 A.2d at 87. 3.4.3 A Condition of the Oral Contract was for Fisher, Inc. To Update and File the Land Development Plans Consistent with the 1994 Settlement Agreement. As mentioned above, one ofthe principal conditions of the oral contract obligated Fisher, Inc. to revise, update and file the requisite land development plans in compliance with the 1994 Settlement Agreement between the DiSantos and Silver Spring Township. Fisher, Inc. failed to do so, therefore, it failed to perform a condition of the oral contract. Moreover, since compliance with the 1994 Settlement Agreement with Silver Spring Township was a condition of Fisher, Inc.'s performance, the Silver Spring Township was a third party that would determine whether Fisher, Inc. performed under the contract. "A contract may provide that the sufficiency of its performance shall be determined by some third person; and where the parties to a contract provide for such a determination, the decision of the third person is final, and no action maybe sustained with reference to the matters embraced in the prospective submission." P.L.E.2d Contracts §448, at p. 434 (footnotes omitted). See also Stierheim v. Bechtold, et ux., 158 Pa.Super. 107, 43 A.2d 916, 917 (1945); John Conti Co. v. Donovan, 358 Pa. 566, 57 A.2d 872, 874- 75 (1948). Since Fisher, Inc. filed plans that did not comply with the 1994 Settlement Agreement and which were disapproved by the Township's Planning Commission, Fisher, Inc. failed to perform under the oral contract. 10 3.4.4 A Condition of the Oral Contract was that Fisher, Inc. was Required to Exercise Due and Specialized Skill in the Field of Engineering and Land Planning and to Perform in a Workmanlike Manner. "Where skill, as well as care, is required in performing a particular type of service, and the party involved holds himself out to the world as skilled in such business and undertakes for hire, he is bound to the exercise of due and ordinary skill in the employment of his business and to perform in a workmanlike manner." P.L.E.2d Contracts §445, at p. 429 (footnotes omitted). Fisher, Inc., however, failed to exercise due and either ordinary or specialized skill as a professional engineer by failing to deliver meaningful, faithful and diligent services to Locke Property. If a parry purports to have skill in a business, and he undertakes for hire, he is bound to the exercise of due and ordinary skill in the employment of his art or business, and if he fails to come up to the standard of his duty, the consideration of the implied contract fails, and he cannot recover compensation for such work as he has done. On the other hand, when the thing is so far perfected as to answer the intended purpose, and is taken possession of and turned to that purpose by the parry for whom it was constructed, no mere imperfection or omission which does not virhxal effect its usefulness and is not willful will prevent a recovery therefor but the damage caused by such imperfection will be deducted from the contract price. P.L.E.2d Contracts § 467 at pg. 473. Finally, even if Fisher, Inc. substantially performed its obligations under the oral contract, its performance was substantially defective, and Locke Property did not accept Fisher, Inc.'s defective performance. "As a general rule, if performance of a contract is substanfially defective, acceptance is necessary to render the party liable for the contract price." P.L.E.2d Contracts § 458 at p. 454. See also First Mortgage Co. ofPennsylvania v. Carter, 306 Pa. Super. 498, 452 A.2d 835, 837 (1982)("[I]fbenefits of substantial performance have been voluntarily accepted with knowledge that there have been omissions in achieving strict performance, the party accepting performance will be precluded from setting up such omissions as a defense ...."). 11 "A defective performance is a defense pro tanto, not merely aset-off, to an action on a contract. Accordingly, a party is not bound to pay for an improvement on his land, in every way radically defective, in view of the purpose for which it was intended, even though it may be of some value to him; and an action may lie against the defaulting party for the defective performance of his contract." P.L.E.2d Contracts §467 at p. 473. 3.5 THE AGREEMENT BETWEEN FISHER, INC. AND LOCKS PROPERTY IS PRESUMPTIVELY VOID DUE TO THE CONFIDENTIAL RELATIONSHIP BETWEEN THE PARTIES. Any agreement between the parties -whether oral or written - is presumed to be void because, due to Fisher, Inc.'s unique position, experience and knowledge as the long-standing engineer on The Golden Triangle project and, further, based on Fisher's and Fisher, Inc.'s representations, Locke Property was induced to place significant reliance and trust in Fisher, Inc.; and, consequently, Fisher, Inc., took unfair advantage of Locke Property's reliance and trust. When parties stand on equal term, and are dealing at arms' length and the plaintiff has no control over the defendant or his property, there is a presumption that the defendant possesses ordinary firmness; and a party asserting the existence of a confidential relationship, lack of capacity or undue influence, generally has the burden of proving such assertion. However, our courts have stated on numerous occasions, that when it appears from the relation of the parties that they did not deal on equal terms, but that on one side there was an overmastering influence, or on the other side, from weakness, dependence, or trust justifiably reposed, unfair advantage is rendered probable, then the transaction is presumed to be void, and it is incumbent upon the party in whom confidence is reposed to show affirmatively that no deception was used and that all was fair, open, voluntary, and well- understood. P.L.E.2d Contracts §93, at p. 119 (and cases cited therein). See also Frowen v. Blank, 493 Pa. 137, 425 A.2d 412, 418 (1981). "When the relationship between the parties to an agreement is one of trust and confidence, the normal arm's length bargaining is not assumed, and over reaching by the dominant party for his 12 benefit permits the aggrieved party to rescind the transaction." 425 A.2d at 416. "This is so because the presence of a confidential relationship negates the assumptionthat eachparty is acting in his own best interest." Id. "Once a confidential relationship is shown to have existed, it then becomes the obligation of the party attempting to enforce the terms of the agreement to establish that there has not been a breach of that trust." Id. (citations omitted) "The general test for determining the test for such a relationship is whether it is clear that the parties did not deal on equal terms." Id. (citations omitted). "[A] confidential relationship is not limited to any particular association of parties but exists wherever one occupies toward another such a position that advisor or counselor has a reasonably to inspire confidence that he will act in good faith for the other's interest ...." Id. at 417 (quoting Brooks v. Constone, 356 Pa. 69, 76-77, 51 A.2d 684, 688 (1947)). 3.6 FISHER I5 ENTITLED TO NO FEE UNDER THE ORAL AGREEMENT BECAUSE HE FAILED TO RENDER FEASHiLE ADVICE TO LOCKS PROPERTY. Since the professional services rendered by Fisher, Inc., under the oral agreement consisted of advice to Locke Property as to the updating, filing and Township approval of the Subdivision and Land Development Plans; and further, since the advice provided by Fisher was not feasible in that regard, Fisher, Inc., is riot entitled to any fee under either the oral agreement or alleged written agreement. "Where the service to be rendered consists of advice to be given, the advice given must be feasible to produce the result promised in order to entitle the party giving the advice to the fee agreed upon under the contract." P.L.E.2d Contracts §226, at p. 283 (footnotes omitted). 3.7 FISHER, INC. BREACHED THE CONTRACT WITH LOCKS PROPERTY. "Under Pennsylvania Law, a breach of contract claim required a plaintiff to prove four elements: (1) the existence of the contract to which plaintiff and defendant were parties; (2) the essential terms ofthe contract; (3) abreach ofthe duty imposed by the contract; and (4) that damages 13 resulted from the breach." P.L.E. 2d Contracts §462 at p. 14 (2002 Supp.). "To prevail on a breach of contract claim, a plaintiff must establish that there was an agreement which the defendant breached, thereby causing damages to the plaintiff." Matthews v. Unisource Worldwide, Inc. , 748 A.2d 219, 221 (Pa. Super. Ct. 2000). "Upon the breach of a contract, the injured party is not compelled to rescind, but may sue and recover damages or specific performance, while the party guilty of the breach is subjected to a corresponding liability.... However, if each ofthe parties to a bilateral contract commits a material breach thereof, the law will give leave to neither party." P.L.E.2d Contracts §468 at p. 475. Due to Fisher, Inc.'s breach of the contract, Locke Property was damaged in a number of ways. First, Locke Property was unable to secure replacement engineers to finish his proposed project and, thus, was unable to obtain governmental approval of his proposed project. As a consequence, the DiSantos terminated the real estate sales agreement with Locke Property. Not only has Locke Property lost the Golden Triangle project, it has also lost extensive money that was expended by it in attempting to meet its contractual obligations with the DiSantos and in attempting to secure approval of the land development plans. While Locke Propertywas notpermitted to use ortransfer Fisher, Inc.'s workproduct, Fisher, Inc. on the other hand, continued to work on the Golden Triangle proj ect on behalf of the DiSantos. The Township conditionally approved the Golden Triangle project in December 2002. Groundbreaking on the Golden Triangle proj ect by the DiSantos is likely to begin sometime in 2004. 3.8 FISHER, INC. BREACHED THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING. In Pennsylvania, the courts have recognized the duty of good faith only in limited situations.... More specifically, the duty of good faith may not be implied where (1) a plaintiff has an independent cause of action to vindicate the same rights with respect to which the plaintiff invokes the duty of good faith; (2) such implied duty would 14 result in defeating a party's expressed contractual rights specifically covered in the written contract by imposing obligations that the party contracted to avoid; or (3) there is no confidential or fiduciary relationship between the parties. Agrecycle, Inc. v. City of Pittsburgh, 783 A.2d 863, 867 (Pa. Commw. Ct. 2001). 3.9 FISHER, INC. IS EQUITABLY ESTOPPED FROM ENFORCING ANY CONTRACT BETWEEN IT AND LOCKS PROPERTY. Equitable estoppel is a doctrine that prevents one from doing an act differently than a manner in which another was induced by word or deed to expect. A doctrine sounding inequity, equitable estoppel recognizes that an informal promise implied by one's words, deeds or representations which leads another to rely justifiably thereon to his own injury or detriment maybe enforced in equity. Kreutzer v. Montery County Herald Co., 787 A.2d 358 (Pa. 2000) (citing Novelty Knitting Mills v. Siskind, 500 Pa. 432, 457 A.2d 502, 503 (1983). "There are two essential elements to estoppel: inducement and reliance. The inducement may be words or conduct and the acts that are induced may be by commission or forbearance provided that a change in condition results, causing disadvantage to the one induced. More important, the law requires that: There can be no equitable estoppel where the complainant's act appears to be rather the result of his own will or judgment than the product of what the defendant did or represented. The act must be induced by and, be the immediate or proximate result of, the conduct or representation, which must be such as the party claiming the estoppel had a right to rely on. The representation or conduct must of itself have been sufficient to warrant the action of the party claiming the estoppel. If notwithstanding such representation or conduct he was still obliged to inquire for the existence of other facts and to rely on them to sustain the course of action adopted, he cannot claim that the conduct of the other party was the cause of his action and no estoppel will arise. Where there is no concealment, misrepresentation or other inequitable conduct by the other party, a party may not properly claim that an estoppel arises in his favor from hisownomissionormistake. Estoppel cannotbepredicatedonerrors of judgment by person asking the benefit. Zitelli v. Dermatology 15 EDUC. and Research Foundation, 534 Pa. 360, 369-370, 633 A.2d 134,139-140 (1993) (some internal citations and quotations omitted). Price v. Chevrolet Motor Division of GMC, 765 A.2d 800, 808 (Pa. Super. Ct. 2000). 3.10 FISHER, INC. HAS "UNCLEAN HANDS"; THEREFORE, IT SHOULD NOT BE PERMITTED TO ENFORCE ANY CONTRACT OR ENJOY ANY RECOVERY. "The equitable doctrine of `unclean hands', to be raised as a defense, requires that the plaintiff s allegedly improper conduct affect the equitable relations between the parties and be directly connected with the matter in controversy". Young v. Cerone, 338 Pa.Super. 280, 287, 487 A.2d 965 (1985). 3.11 ROBERT FISHERAND FISHER, INC. TORTIOUSLY INTERFERED WITH LOCKS PROPERTY'S CONTRACTUAL OBLIGATIONS UNDER ITS REAL ESTATE AGREEMENT WITH THE DISANTOS. In Pennsylvania, "[o]ne who intentionally and improperly interferes with the performance of a contract ... between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the third person's failure to perform the contract." Joseph D. Shein, P. C. v. Myers, 394 Pa.Super. 549, 576 A.2d 985, 988 (1990), appeal denied, 533 Pa. 600, 617 A.2d 1274 (1991) (emphasis in original) (citations omitted). Further, "once a finding of tortious interference has been made, the tortfeasors must pay damages." Shein, 576 A.2d at 986. 16 [. 3.12 PURSUANT TO THE DECLARATORY JUDGMENT ACT, THE COURT SHOULD DECLARE THAT THE CONTRACT IS VOID AND UNENFORCEABLE. In light of Fisher, Inc.'s and Fisher's acts and omissions, Defendant requests that the Court declare any agreement between the parties to be void and unenforceable, pursuant to the Declaratory Judgment Act, 42 Pa.C.S. §7531 et seq.; Pa.R.C.P. 1601-1602. Respectfully Submitted, WEST LONG LLc Robert R. Long, Jr. 105 North Front Street Suite 205 Harrisburg, PA 17101 (717) 233-5051 (717) 234-7517 -fax Dated: December 4, 2003 Counsel for Defendant Locke Property Company, Inc. 17 CERTIFICATE OF SERVICE I hereby certify that on this 4th day of December, 2003, a true and correct copy of the foregoing Trial Brief of Defendant was served upon the party named below via hand delivery, addressed as follows: Craig A. Diehl, Esquire 3464 Trindle Road Camp Hill, PA 17011 iy a'~ f l ' ~ ~~rf anne M. Bennett Paralegal DEC 0 4 2003 West Long LLc 105 Noxth Fxont Street Suite 205 Harrisburg, PA 17101 (717) 233-5051 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., : No. 01-5477 Plaintiff v. LOCKS PROPERTY COMPANY, INC. :CIVIL ACTION -LAW Defendant DEFENDANT LOCKS PROPERTY COMPANY, INC.'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW COMES NOW, Defendant Locke Property Company, Inc., by and through counsel, and files its Proposed Findings of Fact and Conclusions of Law in advance of the bench trial in the above-captioned action.' PROPOSED FINDINGS OF FACT 1. Locke Property Company, Inc. ("LOCKS PROPERTY") is a Massachusetts corporation, with its principal office address at 46 Central Street, Manchester-by-the-Sea, Massachusetts 01944. 2. R.J. Fisher and Associates, Inc. ("FISHER, INC.") is a Pennsylvania corporation, with its principal office address at 1546 Bridge Street, New Cumberland, Pennsylvania 17070. ' Upon request, Defendant would be pleased to provide the court with an electronic version of these Proposed Findings of Fact and Conclusions of Law. 3. Robert J. Fisher ("FISHER") is an adult individual who is a licensed by the Commonwealth of Pennsylvania as a professional licensed engineer. 4. At all material times, FISHER, INC. held itself out as having professional engineering and planning expertise, particularly in land planning, site design, construction and landscape architecture, and with particular familiarity with Silver Spring Township, Cumberland County, Pennsylvania and the Golden Triangle Project. 5. At all material times, Robert J. Fisher, PLS, PE ("FISHER") held himself out as a licensed engineer with professional engineering and planning expertise, particularly in the areas of land planning, site design, construction, landscape architecture, and with particular familiarity with Silver Spring Township, Cumberland County, Pennsylvania and the Golden Triangle Project. 6. LOCKS PROPERTY is a real estate developer, which at all material times had contract rights to and was ready, willing and able to proceed in the process of acquiring and developing an approximately 48.5 acre parcel of unimproved real estate property (known and described as "Lot 1 ") that was part of a larger parcel of approximately 100 acres called "The Golden Triangle" located in Silver Spring Township, Cumberland County, Pennsylvania (hereinafter the "Golden Triangle Project")(Def. Ex. 10, Recitals). 7. The Golden Triangle property is owned by Alex A. DiSanto, Jr., Julia Szabo, and Mark DiSanto (the "Trustees") who obtained the property in a 1993 Irrevocable Trust left by their parents, Alex and Dora DiSanto, and by Mark X. DiSanto, John M. DiSanto and John DiSanto, who obtained their ownership from their parents, Alex and Dora DiSanto (collectively referred to as the "DiSANTOs"). 2 8. In the late 1980s or in 1990, FISHER and FISHER, INC. was retained by the DiSANTOs to provide professional engineering services to the DiSANTOs for, inter alia, the preparation and submission of the requisite subdivision and land development plans to Silver Spring Township to seek the township's approval of The Golden Triangle Project. 9. In August 1990, the Land Development Plan for The Golden Project that was prepared by FISHER, INC. as submitted by the DiSANTOs was disapproved by Silver Spring Township (Def. Ex. 1). 10. Silver Spring Township's grounds for disapproving The Golden Triangle Project were extensive and were set forth in (1) a four-page letter dated August 24, 1990, to the DiSANTOs' development company, Triple Crown Corporation, which set forth 22 reasons for disapproval and (2) six pages of township staff comments that were attached to the letter. (Def. Ex. 1). 11. In July, 1991, the DiSANTOs received a proposal from general contractor Leon E. Wintermyer, Inc., ("Wintermyer, Inc.") of Lemoyne, PA, which set forth a proposal for site work on The Golden Triangle Project (Def. Ex. 3). 12. On August 26, 1992, Silver Spring Township approved the DiSANTOs' preliminary subdivision plan for The Golden Triangle Project subject to 17 conditions that the DiSANTOs were required to meet (Def. Ex. 2). 13. FISHER and FISHER, INC. provided professional engineering services to the DiSANTOs in connection with the approved preliminary subdivision plan as approved in August, 1992. (Def. Ex. 2). 14. A dispute between the DiSANTOs and Silver Spring Township arose over the township's disapproval of the DiSANTOs proposed land development plan for The Golden Triangle Project which led to the DiSANTOs filing of three lawsuits in this Court at Docket Nos. 3310 Civil 1990; 304 Civil 1991; and 1351 Civil 1993. (Def. Ex. 4, p. 2). 15. The dispute and lawsuits between the DiSANTOs and Silver Spring Township were settled by and through a written settlement agreement dated June 8, 1994 (the "1994 Settlement Agreement") (Def. Ex. 4). 16. Pursuant to the 1994 Settlement Agreement, the DiSANTOs, as the owners and developers of tract of land for The Golden Triangle Project, were required to comply with the Silver Spring Township subdivision ordinances that were in effect when FISHER and FISHER, INC., on behalf of the DiSANTOs, submitted the original Subdivision Plan 92-7P (Def. Ex. 4, pp. 8-9). 17. Further, pursuant to the 1994 Settlement Agreement, the DiSANTOs were required to prepare and submit subdivision and final land development plans for The Golden Triangle Project which conformed to the 1994 Settlement Agreement. 18. At least a decade after the DiSANTOs began their plans to develop the Golden Triangle Project, LOCKS PROPERTY entered into a Letter of Intent to Purchase Real Estate dated March 28, 2000 with the DiSANTOs, as amended by an addendum dated April 12, 2000. (Def. Ex. 6). 19. Under the proposed sale of the subject tract from the DiSANTOs to LOCKS PROPERTY, only a 48.5-acre portion of the DiSANTOs 100-acre tract of land was to be conveyed to LOCKS PROPERTY; the DiSANTOs would continue to own the remainder of approximately 51.5 acres of the Golden Triangle site. 20. The DiSANTOs submitted a copy of the subdivision and land development plans that were prepared by FISHER and FISHER, INC., as part of the DiSANTOs submission of 4 bLL +w.~~ L.. information to LOCKS PROPERTY for its review and consideration in advance of entering into an agreement with the DiSANTOs for the purchase of the subject tract of land. (Def. Ex. 7, p. 2, item 14). 21. LOCKS PROPERTY was introduced to FISHER, INC., and FISHER by Mark X. DiSanto as exceedingly competent, professional and expert in providing land planning, design, construction, landscape architecture, engineering and planning services, and as having direct experience in the design and planning of the Golden Triangle Project that previously had been submitted to Silver Spring Township by Triple Crown Corporation, by or on behalf of the DiSanto Parents as the prior owners of the Golden Triangle Project and had been rejected by Silver Spring Township. 22. On or about March 28, 2000, DiSANTO recommended FISHER and FISHER, INC. as the engineers and planners to be retained by LOCKS PROPERTY to update and submit the requisite development plans to the Township. That same day, LOCKS met with FISHER. during which FISHER explained the work that would need to be performed to correspond to the Township requirements and the 1994 Settlement Agreement. FISHER made no mention of material changes. 23. At the time LOCKS explained he would be interviewing other architects to finish the plans. FISHER made no objection to the use of the plans by others. 24. FISHER, on behalf of himself and FISHER, INC., promoted the professional expertise of himself and of FISHER, INC. concerning engineering and planning, particularly land planning, architecture and engineering services generally, and professional services that had previously been provided to Triple Crown Corporation, the DiSANTOs development company and the DiSANTOS and the concerning the Golden Triangle Project and that could be provided to LOCKS PROPERTY concerning the Golden Triangle Project. 25. FISHER and FISHER, INC. had actual knowledge of the 1994 Settlement Agreement when they met LOCKS PROPERTY for the first time. 26. Indeed, FISHER and FISHER, INC. represented to LOCKS PROPERTY'S president, LOCKS, that they had intimate knowledge of the terms and conditions of the 1994 Settlement Agreement. 27. FISHER, INC. and FISHER represented that they had already prepared the prior plans for Triple Crown Corporation and the DiSANTOs regarding subdivision and land development of the Golden Triangle Project, and that these prior plans could be "updated" for LOCKS PROPERTY'S use in acost-effective, efficient manner by FISHER, INC. and FISHER, and that such "updating" could result in substantial savings for the cost of professional services that are normally provided in such development projects. 28. FISHER, INC. and FISHER represented that, as part of their scope of work and their professional services, they would adhere to the terms of the 1994 Settlement Agreement in which the Township of Silver Spring agreed to the land development and subdivision of The Golden Triangle property on specified terms; and that they would incorporate those terms and comments from the Township into the "updating" of the Prior Plans. 29. On May 8, 2000, FISHER and FISHER, INC., faxed a written proposal to LOCKS PROPERTY setting forth the professional engineering and planning services that were to be provided by FISHER and FISHER, INC., on behalf of LOCKS PROPERTY. (Def. Ex. 8). 30. The services listed by the written proposal of FISHER and FISHER, INC., stated, in pertinent part, that FISHER'S and FISHER, INC.'s services "will include, updating the land 6 ~.~v ~, development and subdivision plan fora 400,000 sq. ft. warehouse as required in the June 8`" 1994 settlement agreement, ...." (Def. Ex. 8)(emphasis added). 31. Also, as part of their proposal, FISHER and FISHER, INC., state that they will "[p]repare a Subdivision to separate the warehouse tract from other lands of Triple Crown Corporation." (Def. Ex. 8). The July. 2000 Purchase and Sale Agreement. 32. On or about July 10, 2000, LOCKS PROPERTY entered into a written Agreement of Purchase and Sale with the DiSANTOS ("P&S Agreement") (Def. Ex. 10) 33. Pursuant to the P&S Agreement (§§1 and 2), the DiSANTOS agreed to sell the Golden Triangle Project to LOCKS PROPERTY for $1.5 million. 34. Pursuant to the P&S Agreement (§3(a)), LOCKS PROPERTY made a $60,000.00 cash escrow deposit for the Golden Triangle Project (hereinafter "Deposit"). 35. Pursuant to the P&S Agreement (§C(6)and (32) and §3(b)), the DiSANTOS agreed with LOCKS PROPERTY that the balance of the purchase price would be paid on or before the "Closing Date", which was agreed to be thirty (30) days after the "Permit Date", which was agreed to be the date on which LOCKS PROPERTY received all final, permits, licenses and approvals to develop, build, use and operate the Golden Triangle Project, including approvals by Silver Springs Township, and other governmental authorities having jurisdiction over the Land Development Plan, Preliminary Subdivision Plan and Final Subdivision Plan, and revisions to the flood plain by the Federal Emergency Management Agency ("FEMA"); but in no event more than eighteen months after the P&S Agreement's date. 36. Pursuant to the P&S Agreement (Recitals "A" and "B"), the parties understood that a land development plan and final subdivision plan had been filed with Silver Spring 7 Township but remained unapproved and were the subject of the 1994 Settlement Agreement. (Def. Ex. 10, Recitals "A" and "B"). 37. Pursuant to the P&S Agreement, LOCKS PROPERTY was purchasing the Lot "1"property to pursue construction and completion of a free standing 400,000 square foot building designed for warehouse, trucking and related uses (the "Project")(Def. Ex. 10, page 5). 38. Pursuant to the P&S Agreement (§ 12(b)(vii) and (xii)), the DiSANTOs represented that assignment of all development plans, land development plans, preliminary subdivision plans, final subdivision plans, structural reviews, architectural drawings and engineering, soil, seismic, geologic, environmental and architectural reports, studies and certificates and other documents concerning the Golden Triangle Project ("Plans") to LOCKS PROPERTY did not require the consent of third parties, and that they had good and marketable title to such Plans, which were fully paid for and free and clear of any claims, disputes, liens or encumbrances. 39. Pursuant to the P&S Agreement (§12(d)(i) and (ii)), the DiSANTOs represented that: (i) they would use due diligence and best efforts to keep in full force and effect the terms of the 1994 Settlement Agreement, to comply with governmental regulations, and to keep LOCKS PROPERTY advised concerning developments about the 1994 Settlement Agreement; (ii) they would not change the terms of the 1994 Settlement Agreement or enter into any contracts, restrictions or obligations affecting the Golden Triangle Project without LOCKS PROPERTY'S prior written consent; (iii) they would not file any development plans, subdivision plans or other plans with any governmental authorities concerning the Golden Triangle Project, without LOCKS PROPERTY'S prior written consent; and (iv) they would not seek zoning approvals or change in variances regarding the Golden Triangle Project, without LOCKS PROPERTY'S prior written consent. 40. Pursuant to the P&S Agreement (§ 12(d)(iii)), the DiSANTOs represented that they: (i) would fully cooperate regarding LOCKS PROPERTY'S plans for the Golden Triangle Project and would not hinder, delay or impair LOCKS PROPERTY from filing or obtaining any and all project approvals regarding plans for the Golden Triangle Project; (ii) would take no action to adversely affect or delay or increase LOCKS PROPERTY'S cost of the Golden Triangle Project; and (iii) would not modify the Development Plan, the Preliminary Subdivision Plan, or the Final Subdivision Plan or any uses planned for related property so as to adversely affect or delay or increase LOCKS PROPERTY'S costs regarding the Golden Triangle Project. 41. Pursuant to the P&S Agreement, LOCKS PROPERTY was responsible to apply for and receive all necessary governmental approvals for the Project, including, but not limited to, the approvals of Silver Spring Township for the Project's subdivision and land development plans. 42. Additionally, LOCKS PROPERTY was required to adhere to the terms and conditions of the 1994 Settlement Agreement in connection with its subdivision and land development plans for the Golden Triangle site. (Def. Ex. 4, the 1994 Settlement Agreement) 43. Under the P&S Agreement, LOCKS PROPERTY was responsible to complete the subdivision process for the entire 100-acre parcel. 44. Under the P&S Agreement, LOCKS PROPERTY would then have taken title to the 48.5 acre Lot "1 "and the DiSANTOs would have retained ownership of the remaining subdivided lots including those fronting along U.S. Route 11, known as the "Carlisle Pike", which the DiSANTOs intended to immediately use as retail pad sites. 9 45. Pursuant to the P&S Agreement (§24), the DiSANTOs agreed that they would: (i) not modify the Land Development Plan, the Preliminary Subdivision Plan, the Final Subdivision Plan or the 1994 Settlement Agreement without LOCKS PROPERTY'S prior written consent; (ii) fully support and join in any modification to those plans and any related project approvals required by LOCKS PROPERTY in connection with LOCKS PROPERTY'S plans for the project; (iii) execute and deliver any amendments to pending plans relating to the filing and approval that LOCKS PROPERTY may seek to develop, build or operate the project; and (iv) fully support LOCKS PROPERTY in seeking project approvals. Def. Ex. 10, §24. 46. Beginning in or about the latter half of 2000, LOCKS PROPERTY began assembling a team of professional consultants to prepare, file and prosecute the various applications for governmental approval. 47. LOCKS PROPERTY'S team of consultants included a civil engineer, traffic engineer, FEMA engineer, general contractor, site work sub-contractor, marketing specialist and a zoning lawyer. 48. FISHER stated he knew the project. We also reviewed the changes needed. NO waterline changes were discussed. In August, 2000, LOCKS met with FISHER again and reviewed FISHER'S proposal. As a result of FISHER's assurances that he would act expeditiously, LOCKS engaged FISHER. 49. In August, 2000, LOCKS PROPERTY again met with FISHER and FISHER, INC. to discuss their work in furtherance of LOCKS PROPERTY'S contractual obligations pursuant to the P&S Agreement. 50. At the meeting with FISHER and FISHER, INC. in August, 2000, LOCKS PROPERTY discussed FISHER'S and FISHER, INC.'s form written proposal and, further, 10 advised FISHER and FISHER, INC., that LOCKS PROPERTY required a standard form engineering contract. 51. Also, at that August, 2000, meeting LOCKS PROPERTY reviewed with FISHER and FISHER, INC. the changes to the Golden Triangle subdivision and land development plans required in order to comply with the 1994 Settlement Agreement. 52. Based on the representations of FISHER, INC. and FISHER, LOCKS PROPERTY engaged FISHER, INC. and FISHER to perform professional land planning engineering services concerning the Golden Triangle Project and FISHER, INC. and FISHER orally agreed to provide those services to LOCKS PROPERTY ("Oral Professional Services Agreement"). 53. In this Oral Professional Services Agreement, the parties expressly agreed that FISHER, INC. and FISHER would efficiently and economically provide professional services by, among other things, "updating" the existing prior plans concerning subdivision and development of the Golden Triangle Project that FISHER, INC. and FISHER had prepared, by incorporating changes that adhered to the 1994 Settlement Agreement and Silver Springs Township's comments. 54. In or about August, 2000, LOCKS PROPERTY requested that FISHER and FISHER, INC. send a copy of the then-existing subdivision and land development plans to LOCKS PROPERTY'S contractor, Wintermyer, Inc., so that the contractor could begin to prepare its cost estimates for the construction on the proposed site. 55. Thereafter, LOCKS PROPERTY met with Wintennyer, Inc. and discovered that FISHER and FISHER, INC. had not provided the full set of plans to Wintermyer, Inc. as 11 previously requested by LOCKS PROPERTY, which precluded Wintermyer, Inc. from promptly quoting on the project. 56. As a result of FISHER'S and FISHER, INC.'s failure to promptly send out the plans to Wintermyer, Inc., LOCKS PROPERTY suffered a loss of time of approximately six weeks of the planning process. 57. After the P&S Agreement was signed by LOCKS PROPERTY and the DiSANTOS, analysis of the road cost indicated the costs to be significantly higher than the DiSANTOS had represented to LOCKS PROPERTY. 58. By a letter dated November 2, 2000, LOCKS PROPERTY and the DiSANTOS agreed to reduce the purchase price of the property by up to $250,000.00 because the site costs were higher than originally estimated. (Def. Ex. 13.) 59. In or around January, 2001, LOCKS PROPERTY'S Locke again advised FISHER and FISHER, INC. that LOCKS PROPERTY'S financing of the Golden Triangle Project by investors, such as Prudential Real Estate Investors, Inc. and others, would be conditioned on, among other things, the engagement of a professional service provider for architectural, planning and engineering services pursuant to a contract with terms in a standazd AIA, ASCE or EJCDC format, and proof of appropriate professional liability errors and omissions insurance coverage. 60. FISHER, on behalf of himself and FISHER, INC., represented that FISHER, INC. would provide both the contract in the appropriate standard term format, and proof of adequate professional liability insurance coverage. 61. Based on the Oral Professional Services Agreement, and even though FISHER, INC. and FISHER had not prepared a written contract with teens in the standazd term AIA, 12 ASCE or EJCDC format, FISHER, INC. and FISHER began performing professional services for LOCKS PROPERTY concerning The Golden Triangle property in or about February 2001. 62. In February, 2001, FISHER and FISHER, INC. submitted a proposed preliminary project schedule to LOCKS PROPERTY for the latter's review and approval. (Def. Ex. 18). 63. Upon its review of the proposed schedule, LOCKS PROPERTY discovered that it was incomplete and unacceptable in that it did not include a detailed work schedule for PennDOT, FEMA, environmental and sewer planning. 64. LOCKS PROPERTY requested that FISHER and FISHER, INC. revise and correct the proposed schedule, but they failed to do so. 65. LOCKS PROPERTY provided a copy of FISHER and FISHER, INC. proposed preliminary project schedule to LOCKS PROPERTY's real estate counsel in Harrisburg, PA, Jack F. Hurley, Jr., Esquire, who had been retained by LOCKS PROPERTY, to provide legal services in connection with the Golden Triangle Project. (Def. Ex. 19). 66. In reliance on FISHER'S and FISHER, INC.'s schedule, LOCKS PROPERTY'S attorney, Jack F. Hurley, Jr., Esquire, submitted a written request dated February 22, 2001, to Silver Spring Township asking that an item be added to the agenda for the upcoming workshop meeting of the Township Board of Supervisors scheduled for March 14, 2001, to discuss the proposed development of Lot "1" of the Golden Triangle by LOCKS PROPERTY. (Def. Ex. 20). 67. In response to Attorney Hurley's request, the Silver Spring Township placed the Golden Triangle Project on its agenda for the Township Board of Supervisors' workshop scheduled for March 14, 2001. 68. This workshop meeting would have been the first occasion for LOCKS PROPERTY to meet with the Township Board of Supervisors. 13 69. Pursuant to Pennsylvania statutory law, a developer is required to comply with a Municipality's subdivision and land development ordinances. 53 P.S. §10507 (Pardon's 2003). 70. Pursuant to Silver Spring Township's Subdivision and Land Development ordinance, any subdivision or land development plan must be reviewed by the Township's staff, engineer and planning commission, among others prior to review and consideration by the Township's Board of Supervisors for approval or disapproval. (Def. Ex. 85) 71. From early February to mid-March, 2001, LOCKS PROPERTY was in contact with FISHER and FISHER; INC. with respect to the status of FISHER'S and FISHER, INC.'s work. (Pl. Ex. 7, Def. Ex. 82). 72. LOCKS PROPERTY found FISHER's and FISHER, INC.'s responses to its questions and request for information to be incomplete and evasive during this period of time and thereafter. 73. On the morning of March 14, 2001, the day on which LOCKS PROPERTY was to meet with the Silver Spring Township Supervisors for the first time at the scheduled workshop, LOCKS PROPERTY cancelled its presentation to the Board of Supervisors because of deficiencies in the proposed updated plan prepared by FISHER and FISHER, INC. (Def. Ex. 21). 74. LOCKS PROPERTY, with advice and guidance of counsel, cancelled the meeting to avoid any problem or embarrassment with Silver Spring Township. 75. FISHER and FISHER, INC. provided the proposed plans to LOCKS PROPERTY on March 13, 2001 for LOCKS PROPERTY'S review and approval, the day before the scheduled workshop meeting with Silver Spring Township. 14 76. The proposed plans prepared by FISHER and FISHER, INC. were substantially different than the proposed plans that LOCKS PROPERTY had reviewed at least a month previously and did not comply with LOCKS PROPERTY'S previous instructions to FISHER and FISHER, INC. 77. LOCKS PROPERTY identified a number of major changes made to the plans by FISHER and FISHER, INC. which had not been items not brought to its attention by FISHER and FISHER, INC. that were clearly outside the scope of the 1994 Settlement Agreement and which would have triggered a breach of the 1994 Settlement Agreement. 78. For example, these changes included (1) the addition of two large stormwater detention basins on the proposed Lot "1 ", (2) the increase of the floor elevation of the proposed warehouse, (3) the elimination of the primary driveway to the site, and (4) the addition of a second driveway which would have resulted in the DiSANTOs not having to build their own driveway to Lot " 3" which was to be retained by the DiSANTOs. (Def. Ex. 80) 79. Thereafter, FISHER and FISHER, INC. continued to work on and revise the proposed subdivision and land development plans which were eventually submitted to Silver Spring Township for review by the Silver Spring Township Planning Commission "to determine compliance with the Township staff and engineering comments contained in the Township's letter dated August 24, 1990, subject to the limitations and conditions set forth in the above- referenced Agreement and Stipulation." (Def. Ex. 22, 23). 80. On March 23; 2001, while at the offices of FISHER and FISHER, INC., William Locke for LOCKS PROPERTY signed the Fisher Proposal on the express counter-offer condition that the Fisher Proposal had "to be replaced [by] standard form ASCE/contract documents". (Pl. Ex. 2.) 15 81. During the period from March 14 until April 12, 2001, the next set of plans prepared by FISHER and FISHER, INC. were discussed by LOCKS PROPERTY to be deficient with respect to compliance with the 1994 Settlement Agreement. 82. When these deficiencies and differences were brought to their attention by LOCKS PROPERTY, FISHER and FISHER, INC. referred LOCKS PROPERTY to the "needs" of the 20+/- acre retail parcels that were going to be retained by the DiSANTOs, the DiSANTOs' direction to FISHER and FISHER, INC. that certain features be placed on the plans to accommodate the DiSANTO parcels, and represented emphatically to LOCKS PROPERTY that the changes were compliant with the 1994 Settlement Agreement. 83. On or about April 12, 2001, plans were submitted to Silver Spring Township for review at the scheduled May 3, 2001, meeting of the Township Planning Commission. (Def. Ex. 23). 84. Prior to submission of the plans, LOCKS PROPERTY was forced to extensively revise FISHER'S and FISHER, INC.'s proposed transmittal letter to Silver Spring Township because of significant deficiencies with FISHER and FISHER, INC. proposed draft of the letter. (Def. Ex. 23 (attachments)). 85. Notwithstanding LOCKS PROPERTY'S efforts to revise the letter, FISHER'S and FISHER, INC.'s letter was still deficient in that it did not explain LOCKS PROPERTY'S efforts to comply with the 1994 Settlement Agreement. 86. Furthermore, LOCKS PROPERTY requested that FISHER and FISHER, INC. identify any changes that were outside the scope of the 1994 Settlement Agreement. (Def. Ex. 23 - handwritten revisions). 16 87. FISHER and FISHER, INC. refused to make the requested changes utilizing their office staff, forcing LOCKS PROPERTY to e-mail the draft to its offices in Massachusetts for typing revisions to be made and returned to FISHER, INC.'s offices. 88. The Subdivision and Land Development Plans were submitted to the Township by FISHER and FISHER, INC. on April 12, 2001, and were reviewed by the Silver Spring Township Engineer, Mark Bruening, P.E., of Pennoni Associates, Inc. (Def. Ex. 29.2, 31). 89. By memo dated May 3, 2001 to Silver Spring Township Manager, William S. Cook, the Township Engineer, Mark Bruening, P.E., notified the Township that the plans submitted to the Township by FISHER and FISHER, INC. did not comply with the 1994 Settlement Agreement and noted that changes were made to the plans "which do not appear to be changes based on (sic) settlement agreement". (Def. Ex. 27). 90. The Subdivision and Land Development Plans prepared by FISHER and FISHER, INC. for LOCKS PROPERTY were placed on the May 3, 2001, agenda of the Silver Spring Township Planning Commission for review. (Def. Ex. 28). 91. At the May 3, 2001, meeting, the Silver Spring Township Planning Commission tabled action on the proposed Subdivision and Land Development Plans prepared by FISHER and FISHER, INC. to provide the Township's solicitor to determine whether these plans complied with the 1994 Settlement Agreement and Stipulation. (Def. Ex. 29.1, 30). 92. LOCKS PROPERTY, through its president, Locke, repeatedly advised FISHER, INC. and FISHER of the need for them to satisfy the condition of providing a written contract with terms in the standard ALA, ASCE or EJCDC format. 93. Given the failure of FISHER, INC. and FISHER to prepare and provide a written contract with terms in the standard AIA, ASCE or EJCDC format, LOCKS PROPERTY 17 prepared a contract according to the appropriate standard needed to satisfy its lender and investors, and sent it to FISHER, INC. and FISHER on May 9, 2001 (Def. Ex. 32). 94. Despite LOCKS PROPERTY's repeated requests concerning the written contract it sent to FISHER, INC. and FISHER on May 9, 2001, FISHER, INC. and FISHER ignored requests for a response, and they failed and refused to make the contract in the standard form format which FISHER, INC. and FISHER knew was needed by LOCKS PROPERTY in order to satisfy the lending terms of Prudential to finance the project. 95. By fax memo dated May 9, 2001, LOCKS PROPERTY sent a draft sample standard form of agreement to FISHER and FISHER, INC., for their review and use in providing LOCKS PROPERTY with the form of agreement that was required by it and its lenders. (Def. Ex. 32). 96. On or about May 21, 2001, FISHER and FISHER, INC. transmitted an "official resubmission" of the Subdivision and Land Development Plans to Silver Spring Township purporting to respond to the Township's May 4, 2001, letter. (Def. Ex. 35, 36). 97. LOCKS PROPERTY reviewed the proposed draft transmittal letters by FISHER and FISHER, INC., found them to be deficient and inadequate, and was forced to revise or comment on the proposed draft letters. (Def. Ex. 35, 36 attachments). 98. By letter dated Tune 1, 2001, the Silver Spring Township Solicitor, Steven A. Stine, Esquire, of the law firm of James Smith Durkin & Connelly, LLP, notified Silver Spring Township that the Subdivision and Land Development Plans prepared by FISHER and FISHER, INC. for LOCKS PROPERTY did not comply with the 1994 Settlement Agreement. (Def. Ex. 41). 18 99. Township Solicitor Stine stated, in pertinent part, the following in his June 1, 2001 letter: When read together Pazagraphs 6 and 12 indicate that the Owners may either submit and haue reviewed and approved a plan consistent with the original plans under the old Enterprise District Ordinance or submit new plans to be reviewed under the current ordinances. The Owners, however, may not mix and match parts of the original plans with parts of new plans and apply the most advantageous provisions of the old ordinance and the current ordinances to obtain approval of a hybrid plan under the Settlement Agreement. (Def. Ex. 41, p. 2). 100. In a fax memo dated June 5, 2001, and in response to FISHER'S and FISHER, INC.'s inquiries concerning unpaid invoices, LOCKE PROPERTY again reminded FISHER and FISHER, INC. that LOCKE PROPERTY required a signed contract in the form as required by LOCKE PROPERTY and its lenders. (Def. Ex. 42). 101. In its June 5, 2001, memo to FISHER and FISHER, INC., LOCKE PROPERTY'S president, William Locke, wrote as follows: Bob, I received your messages concerning Thursday and the unpaid invoices. As I've explained to you previously I need to have (sic) s~ned contract with you. The contract was sent to you 4 weeks ago and I have not heard a word on it. I also need to know how much the appropriate insurance costs will be. I am reluctant to make a large payment w/out having a contract that I have been requesting for months and we cannot continue in any event if you do not haue the appropriate insurance. You haue been awaze of these requirements for some time. Once settled, you will be paid promptly. Quite frankly based on your attitude towards the project, it sotmds like you are looking for an excuse to stop work. If you aze -that's fine, too. We'll get someone else to finish it if you don't want to. (Def. Ex. 42)(emphasis in original). 19 102. The Silver Spring Township Planning Commission placed the revised Subdivision and Land Development Plans dated May 21, 2001 and prepared by FISHER and FISHER, INC. on its June 7, 2001, meeting agenda for review. (Def. Ex. 43). 103. By memos dated June 7, 2001, to the Township Board of Supervisors, the Township's Engineer, Mark Bruening, P.E., submitted his comments pertaining to the May 21, 2001, version of Subdivision and Land Development Plans prepared and submitted by FISHER and FISHER, INC. which comments identified matters that remained outstanding, that were incomplete or deficient and that required further work on the part of FISHER and FISHER, INC. (Def. Ex. 44, 45). 104. Township Engineer Bruening also submitted a "Plan Sets Comparison" dated June 7, 2001, to the Township Manager in which he identified differences between the May 21, 2001 Subdivision and Land Development plans prepared and submitted by FISHER and FISHER, INC. and the 1994 Settlement Agreement with which the Plans were supposed to, but did not, comply. (Def. Ex. 46). 105. At its June 7, 2001, the Silver Spring Township Planning Commission reviewed and considered the May 21, 2001 Subdivision and Land Development Plans as prepared and submitted by FISHER and FISHER, INC. (Def. Ex. 47). 106. At its June 7, 2001, meeting, the Silver Spring Township Planning Commission recommended that the May 21, 2001 Subdivision and Land Development Plan as prepared and submitted by FISHER and FISHER, INC. should be denied by the Township's Board of Supervisors for a litany of reasons, because the plans were inconsistent with the 1994 Settlement Agreement. 20 107. Based on the Township Engineer's and staffs comments and the review by the Township Planning Commission, the Subdivision and Land Development Plans prepared and submitted by FISHER and FISHER, INC. had to be extensively revised to be consistent with the original plans and the 1994 Settlement Agreement. (Def. Ex. 56). 108. By letter dated June 7, 2001, FISHER and FISHER, INC. wrote to LOCKS PROPERTY in response to LOCKS PROPERTY'S fax memo of June 5, 2001, to FISHER and FISHER, INC. (Def. Ex. 49.) 109. In their letter, FISHER and FISHER, INC. rejected LOCKS PROPERTY'S requests for a written contract in an acceptable standard professional engineering form and, further, stated that they did not carry the type of insurance coverage required by LOCKS PROPERTY and its lenders. (Def. Ex. 49). 110. Following the Township Planning Commission's June 7, 2001, recommendation that the Subdivision and Land Development plans should be rejected, LOCKS PROPERTY'S attorney, Jack F. Hurley, Esquire, requested that the Boazd of Supervisors table the matter at the Board of Supervisor level and grant LOCKS PROPERTY with an extension of time before the Board of Supervisors took action on the plans. (Def. Ex. 52). 111. Given the professional service failures of FISHER and FISHER, INC., LOCKS PROPERTY terminated the services of FISHER and FISHER, INC. in or about June, 2001. 112. In the meantime, LOCKS PROPERTY attempted to retain the services of another engineering firm to correct the deficiencies of the Subdivision and Land Development plans prepared and submitted by FISHER and FISHER, INC. 21 113. On June 21, 2001, LOCKS PROPERTY'S counsel, Jack F. Hurley, Jr., discussed the status of the submission before Silver Spring Township with the DiSANTOs' attorney, F.R. Martsolf, Esquire. 114. During his conversation with the DiSANTOs' attorney, Jack Hurley advised the DiSANTOs' attorney that LOCKS PROPERTY was prepared to proceed with resubmitting the plans to the Township by utilizing the services of a new engineering firm which LOCKS PROPERTY intended on retaining. (Def. Ex. 53). 115. LOCKS PROPERTY was unable to retain the services of another engineering firm because FISIIER and FISHER, INC. refused to transfer the plans and necessary information to a new engineering firm until LOCKS PROPERTY paid to FISHER and FISHER, INC. the disputed fees that FISHER and FISHER, INC. claimed were owed to them by LOCKS PROPERTY. (Def. Ex. 49.) 116. By letter dated June 28, 2001, the Silver Spring Township Manager informed LOCKS PROPERTY, the DiSANTOs, FISHER, FISHER, INC., and other interested parties that the Township Board of Supervisors had agreed to table further action on the Golden Triangle plans consistent with LOCKS PROPERTY'S request, but added that the Township Planning Commission's comments to the plans had to be addressed. (Def. Ex. 54). 117. In August, 2001, in recognition of various delays caused by FISHER and FISHER, INC., LOCKS PROPERTY and the DiSANTOS agreed to extend the "Outside Date" until July 10, 2002. 118. FISHER, INC. and FISHER refused to permit the proposed successor, Michael J. Brill & Associates ("Brill"), to use the existing plans or any data from them and threatening to 22 sue Brill if Brill attempted to submit any revised plans based on the plans or data of FISHER, INC. and FISHER because they owned them and had not been paid for them. (Def. Ex. 58.) 119. In seeking to replace FISHER, INC. and FISHER, LOCKS PROPERTY requested Mark X. DiSanto to prove that it owned plans or data that FISHER, INC. and FISHER claimed it owned when it threatened to sue. 120. However, Mark DiSanto failed and refused to give support for their ownership of the plans or data. 121. LOCKS PROPERTY also sought to hire another firm, Gannett Flemming, but again was unable to do so. 122. As a result of the conduct of FISHER, INC. and FISHER, LOCKS PROPERTY sought to resolve any outstanding issues between them. 123. Unknown to LOCKS PROPERTY, and while it was negotiating in good faith, and the DiSANTOS had acknowledged their delays by agreeing to extend the Outside Closing Date until July, 2002, and while LOCKS PROPERTY was waiting for the release of the plans by FISHER, INC. and FISHER, on or about September 20, 2001, FISHER, INC. and FISHER filed this lawsuit. 124. FISHER, INC. and FISHER did not notify LOCKS PROPERTY of this lawsuit against LOCKS PROPERTY during negotiations, and eventually served it at Locke's home address on Saturday, January 19, 2002. 125. Following the termination of their work for LOCKS PROPERTY, FISHER and FISHER, INC. continued to provide professional engineering and planning services to the DiSANTOS for the Golden Triangle Project. 23 126. In 2002, the DiSANTOS terminated the P&S Agreement alleging that LOCKS PROPERTY was in default of the Agreement. 127. In August, 2002, the 1994 Settlement Agreement between the DiSANTOS and Silver Spring Township was amended by the parties thereto to facilitate the Township approvals of the Subdivision and Land Development Plans that did not comply with the original 1994 Settlement Agreement. (Def. Ex. 84.) 128. In December, 2002, pursuant to the Amended Settlement Agreement and its subdivision and land development review process, Silver Spring Township conditionally approved the Golden Venture property. 24 PROPOSED CONCLUSIONS OF LAW 1. LOCKS PROPERTY imposed conditions upon the terms and conditions of FISHER, INC.'s written proposal which constituted acounter-offer. Since FISHER, INC. did not accept the terms of the counter-offer, there was no written agreement between the parties. 2. FISHER, INC. failed to perform conditions precedent to the oral contract. 3. FISHER, INC. failed to perform the conditions imposed upon it by the oral contract therefore he cannot recover for any alleged breach by LOCKS PROPERTY. 4. FISHER, INC. failed to perform the oral contract to the satisfaction of LOCKS PROPERTY. 5. FISHER, INC. failed to update and file the land development plans in compliance with the 1994 Settlement Agreement. 6. FISHER, INC. failed to exercise due and specialized skill in the field of engineering and land planning and to perform in a workmanlike manner. 7. The agreement between FISHER, INC. and LOCKS PROPERTY is void due to FISHER, INC.'s breach of the confidenfial relationship between the parties. 8. FISHER, INC. is entitled to no fee under the oral agreement because it failed to render feasible advice to LOCKS PROPERTY.. 9. FISHER, INC. breached the oral contract with LOCKS PROPERTY. 10. LOCKS PROPERTY suffered damages as a result of FISHER, INC.'s breach of the oral contract. 11. FISHER, INC. breached the implied covenant of good faith and fair dealing, and LOCKS PROPERTY suffered damages because of that breach. 25 12. FISHER, INC. is equitably estopped from enforcing any contract between it and LOCKS PROPERTY. 13. FISHER, INC. has "unclean hands"; therefore, it should not be permitted to enforce any contract or enjoy any recovery. 14. Robert Fisher and FISHER, INC. tortiously interfered with LOCKS PROPERTY's contractual obligations under its real estate agreement with the DiSANTOS. 15. Pursuant to the Declaratory Judgment Act, the Court hereby declares that the contract between the parties is unenforceable and null and void. Respectfully Submitted, WEST LONG LLc Robert R. Long, Jr. 105 North Front Street Suite 205 Harrisburg, PA 17101 (717)233-5051 (717) 234-7517 -fax Dated: December 4, 2003 Counsel for Defendant LOCKS PROPERTY Company, Inc. 26 CERTIFICATE OF SERVICE I hereby certify that on this 4`"day of December, 2003, a true and correct copy of the foregoing Proposed Findings of Fact and Conclusions of Law was served upon the party named below via hand delivery, addressed as follows: Craig A. Diehl, Esquire 3464 Trindle Road Camp Hill, PA 17011 ~~~~~~~ anne M. Bennett Paralegal R.J. FISHER & ASSOCIATES, INC. V. LOCKE PROPERTY COMPANY, INC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-5477 CIVIL CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 23RD day of JULY, 2003, the pretrial conference in the above-captioned matter scheduled for July 18, 2003, at 11:00 a.m. has been rescheduled for TUESDAY, JULY 29, 2003, at 3:00 p.m. in Chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. A Pretrial memorandum shall be submitted by counsel in accordance with C.C.R.P. 212-4. TRIAL in the matter will be scheduled at the pretrial conference. Counsel is directed to have their calendars available. „C`raig A. Diehl, Esquire 'rank A. Dante, Esquire Court Administrator :sld c~ o~-ay-~ ~., ;, ~4~e~:~ n r+as..c,,,~.K.., . ~xa,t _ tin ..._ ,. t , ~~.'~1e. ~Yn.~„a` '~-_ _ r - -;.;lk~•.v ~ ~.~` ~- 4 ~ ~1 C.~`. _ .. ~~ R.J. FISHER & ASSOCIATES, IN THE COURT OF COMMON PLEAS OF INC. :CUMBERLAND COUNTY, PENNSYLVANIA V. LOCKE PROPERTY COMPANY, NO. 2001-5477 CIVIL INC. ORDER OF COURT AND NOW, this 21~ day of NOVEMBER, 2003, trial in this matter is continued until FRIDAY. DECEMBER 5. 2003, at 11;00 a.m. Ifi additional time is needed, we will reconvene on TUESDAY, DECEMBER 23, 2003, at 11:00 a.m. in Courtroom # 5. By the Court, Edward E. Guido, J, .l Craig A. Diehl, Esquire 3464 Trindle Road Camp Hill, Pa. 17011 Rober~Long, Jr., Esquire ~$-Pe~~46 :Sid ~'fia,NE^ R 3 3 _ 503/ Robf ,Gow.~ £sq . /05 N. ~Yld~ 59~. 5~.,'f ~ ~ ~L5 hj~t.`t6u2G' ~ . ~Y/D/ i iii! i ~~ ! e. Int. S"a i:'.! R~ ,~. • RJ FISHER & ASSOCIATES, INC., Plaintiff V. LOCKE PROPERTY COMPANY, INC., Defendant IN RE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 01-5477 CIVIL TERM TRIAL CONFERENCE A pretrial conference was held Tuesday, July 29, 2003, before the Honorable Edward E. Guido, Judge. Present for the Plaintiff was Craig A. Diehl, Esquire, and present for the Defendant was Frank A. Dante, Esquire. This is a breach of contract case in which the Defendant has counterclaimed under numerous theories. Counsel estimate that the case may take as many as three days to try. We are skeptical of that claim, and will schedule two days initially. We will adjourn to a third date if that becomes necessary. Trial in this matter is scheduled to commence at 8:30 a.m. on Thursday, November 20, 2003. We have set aside all day November 20 and all day November 21 for the hearing. Counsel are directed forthwith to check the availability of their witnesses for the scheduled trial dates. We will not entertain any request for a continuance, other than for a dyer emergency, made no more than ten days after today's date. The parties are directed to exchange all exhibits by Monday, October 20, 2003. Any objection to the proposed exhibits of the other party, other than for relevance, shall be made in the form of a motion in limine. All exhibits are to be pre-numbered prior to trial. Any motion in limine requiring a hearing to ~ resolve issues of facts must be filed, with supporting authority, by October 1, 2003. Any reply, with supporting authority, shall be filed by October 6, 2003. All other motions in limine, with supporting authority, must be filed by Monday, October 27, 2003. Any replies, along with supporting authority, shall be filed by November 7, 2003. The parties are currently in the process of attempting to negotiate a settlement. It is difficult for the Court to determine how likely that settlement is. Craig A. Diehl, Esquire For the Plaintiff Frank A. Dante, Esquire For the Defendant Court Administrator :mae By the Court, ~_> <.~ c> l `, `.wA ._.~ 17^ G-J ~~ -n r `.i CO:I: ~ .~. ~~i -"10 -<.. ~"`. 1 :C~ ~ -~ r, ~ `~ Z C7 = =t v r { ~ ") 1 OCT 2 8 2003 WITHDRAWAL NOTICE TO: LOCKS PROPERTY COMPANY, INC. RE: R.J. FISHER & ASSOCIATES, INC. V. LOCKS PROPERTY COMPANY, INC. NO.OI-5477 You are hereby notified that the undersigned has filed a Petition to Withdraw as counsel in this case. A copy of the Petition is attached to this notice. If you object to this request, you must object in writing within ten (10) davs to: Honorable Edward E. Guido Court of Common Pleas for the County of Cumberland Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 If no written objection is received within ten (10) davs, the Petition may be granted. LLP Date: Octob~ , 2003 " lexand r o o, Esquire (PA LD. #2S84S) rank ante, e (PA I.D. #87888) BLAN OME LLP One Lo an Square Philade hia, PA 19103 215-569-SS00 - JG ~J ~~• 215-569-SSSS (fax) 116012.00601/21206546v1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RJ. FISHER & ASSOCIATES, INC., Plaintiff, NO.O1-5477 CIVIL ACTION -LAW v. LOCKS PROPERTY COMPANY, INC., Defendant. ORDER AND NOW, this day of 2003 upon the Petition of Defense Counsel to Withdraw Their Appearance on Behalf of Defendant Locke Property Company, Inc., it appearing that Defendant Locke Property Company, Inc., showed good cause, it is hereby ORDERED that counsel for Defendant, Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. Dante, Esquire, are hereby granted leave to withdraw as counsel for Defendant Locke Property Company, Inc. in this matter; ORDERED that Defendant, Locke Property Company, Inc. is directed to retain substitute counsel within days of the entry of this Order. BY THE COURT Edward E. Guido, J. 116012.00601/21206546v1 J F#. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RJ. FISHER & ASSOCIATES, INC., NO.Ol-5477 Plaintiff, CIVIL ACTION -LAW v. LOCKS PROPERTY COMPANY, INC., Defendant PETITION OF DEFENSE COUNSEL TO WITHDRAW THEIR APPEARANCE ON BEHALF OF LOCKS PROPERTY COMPANY. INC. The law firm of Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. Dante, Esquire, hereby move to withdraw their appearance on behalf of Defendant, Locke Property Company, Inc. In support of their motion, counsel represents as follows: On or about February 16, 2001, Alexander D. Bono, Esquire of Blank Rome LLP ("Blank Rome") entered their appearance on behalf of Defendant Locke Property Company, Inc. ("Locke Property") in this matter. 2. The terms of Locke Property's engagement of Mssrs. Bono and Dante and Blank Rome are documented in a letter dated February 4, 2002 (the "Engagement Letter"). The Engagement Letter is not attached to this Petition because it contains privileged and confidential information, but will be provided to the Court for an in camera inspection upon request. 4. There is a total outstanding and unpaid balance of $16,735.03 for legal fees for work which had been done on Locke Property's behalf by Blank Rome in this matter. Blank Rome has repeatedly requested that Locke Property pay the outstanding invoices. Consistent with the terms of the Engagement Letter, Blank Rome regularly provided Locke Property with invoices for legal fees and disbursements. Blank Rome has 116012.00601/21206546v1 repeatedly requested that Locke Property pay the outstanding invoices. Blank Rome has outstanding invoices for every month dating back seventeen months to May, 2003. Blank Rome continued to provide legal services to Locke Property. Moreover, Blank Rome has provided Locko Property almost two years to pay the outstanding legal bills or otherwise make a payment arrangement, but Locke Property has not done so. Blank Rome can no longer provide legal services without being paid. 6. Based upon Locke Property's communications to Blank Rome, and Locke Property's failure to fulfill his obligations to Blank Rome, it is clear that the necessary ingredients for anattorney-client relationship between Locke Property and Blank Rome do not exist. 7. Blank Rome notified Locke Property beginning in January 2002 that it must be paid or it would withdraw as counsel. Locke Property repeatedly assured Blank Rome that it would seek another counsel. On October 16, 2003, Locke Property was again advised that Blank Rome had not been paid and that it was no longer possible for Blank Rome to represent Locke Property and requested that he immediately take steps to retain other counsel. A copy of this letter has not been attached as it contains privileged and confidential information but it will be provided to the Court for in camera inspection upon request. On October 21, 2003 Blank Rome again wrote to Locke Property and expressly stated that it would seek leave to withdraw as counsel on October 21, 2003. 8. Locke Property has refused to pay any portion of the $16,735.03 of his outstanding legal fees for services rendered and has refused to provide any assurance that any portion of these fees will be paid. This case has been scheduled for a bench trial on November 20 and 21, 2003. 116012.00601/21206546v1 f 10. Counsel should be permitted to withdraw under Rule 1.16(6) of the Rules of Professional Conduct because the withdrawal can be accomplished at this time without a material adverse effect on Locke Property's interests. Locke Property will have ample time to retain other counsel, and has represented that it has retained replacement counsel. 11. Counsel should be permitted to withdraw under Rule 1.16(6)(4) because Locke Property failed to substantially to fulfill his obligation to counsel by failing to pay fees and costs now owed to Blank Rome as agreed in the Engagement Letter. 12. Counsel should be permitted to withdraw under Rule 1.16(6)(5) because further representation of Locke Property, without financial security or payment of fees, will result in an unreasonable financial burden on counsel. WHEREFORE, Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. Dante, Esquire, seek the entry of an Order granting them leave to withdraw their appearance as counsel for Defendant Locke Property in this matter, together with such other relief as the Court deems just. Dated: Octob~~, 2003 ACexand D. Bono j~A I.D. #25845) Frank ante (PA LD. #87888) BL ROME LLP One L gan Square Philadelphia, PA 19103 215-569-5500 215-569-5555 (fax) ,4ttorneys for Defendant, Locke Property Company, Inc. ll 6012.0 0601/2 1 206546v7 r VERIFICATION I, Alexander D. Bono, Esquire, hereby verify that the facts set forth in the foregoing Petition to Withdrawal as Counsel are true and correct to the best of my knowledge, information and belief. I understand that the facts stated in the Petition are made subject to the penalties of 18 P.S. §4904 relating to unsworn falsification to authorities. ~ ~~ v D. BONG, ESQUIRE ~LS~~{ 116012.00601/21206546v1 .:. b.... __.. L....a,....~. o.. __ .. _...:. _. .,., _ ~ ` . CERTIFICATION OF SERVICE I, Frank A. Dante, attorney for Defendant Locke Property Company, Inc., do hereby certify that the following are all of the known addresses of my client. Locke Property Company, Inc. 46 Central Street Manchester-By-The-Sea, MA 01944 and that a copy of the Motion and this Notice have been mailed to the address above and to counsel for Plaintiff Craig Diehl by first class mail and facsimile on October.~'3 , 2003. Date: 1('~~L'SI O,T,~ `z..-s~+-~~- Frank A. Dante, Esquire 116012.00601/21206546v1 C; 't 4' i~3 !i ~~ ~ ~ 3 ~ ~(~ }.~ i~ _ td ~~ L_f ~l~ .• L `~ ~ I~ ~ ~~~ ~ } .. l~Y ~\ ±I OCT 2 8 2003 r WITHDRAWAL NOTICE TO: LOCKS PROPERTY COMPANY, INC. RE: R.J. FISHER & ASSOCIATES, INC: V. LOCKS PROPERTY COMPANY, INC. NO.OI-5477 You are hereby notified that the undersigned has filed a Petition to Withdraw as counsel in this case. A copy of the Petition is attached to this notice. If you object to this request, you must object in writin¢ within ten (10) days to: Honorable Edward E. Guido Court of Common Pleas for the County of Cumberland Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 If no written objection is received within ten (101 days, the Petition may be granted. LLP Date: Octobef?' , 2003 fllexand r o o, Esquire (PA LD. #25845) Frank ante, 're (PA LD. #87888) iBLAPi OME LLP }~ !One Lo an Square ~~Philade hia, PA 19103 215-569-5500 215-569-5555 (fax) 116012.00601/21206546v1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., Plaintiff, NO.Ol -5477 CIVIL ACTION -LAW v. LOCKS PROPERTY COMPANY, INC., .: Defendant. ORDER AND NOW, this day of 2003 upon the Petition of Defense Counsel to Withdraw Their Appearance on Behalf of Defendant Locke Property Company, Inc., it appearing that Defendant Locke Property Company, Inc., showed good cause, it is hereby ORDERED that counsel for Defendant, Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. Dante, Esquire, are hereby granted leave to withdraw as counsel for Defendant Locke Property Company, Inc. in this matter; ORDERED that Defendant, Locke Property Company, Inc. is directed to retain substitute counsel within days of the entry of this Order. BY THE COURT Edward E. Guido, 7. 116012.00601/21206546v1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., NO. O1-5477 Plaintiff, CNIL ACTION -LAW v. LOCKS PROPERTY COMPANY, INC., : c ,_ ~• -, zl r'; Defendant. m=-. ~~ ---~ f ` ,~.,~ - ~,~ _. ._, -~ __ c. '~ PETITION OF DEFENSE COUNSEL TO WITHDRAW THEIIlr ~,- ~ - ~-' APPEARANCE ON BEHALF OF LOCKS P-ROPERTX COMPANY~~C. ~ =~' `~, ~, -- The law firm of Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. )jante°, -` Esquire, hereby move to withdraw their appearance on behalf of Defendant, Locke Property Company, Inc. In support of their motion, counsel represents as follows: On or about February 16, 2001, Alexander D. Bono, Esquire of Blank Rome LLP ("Blank Rome") entered their appearance on behalf of Defendant Locke Property Company, Inc. ("Locke Property") in this matter. 2. The terms of Locke Property's engagement of Mssrs. Bono and Dante and Blank Rome are documented in a letter dated February 4, 2002 (the "Engagement Letter"). The Engagement Letter is not attached to this Petition because it contains privileged and confidential information, but will be provided to the Court for an in camera inspection upon request. 4. There is a total outstanding and unpaid balance of $16,735.03 for legal fees for work which had been done on Locke Property's behalf by Blank Rome in this matter. Blank Rome has repeatedly requested that Locke Property pay the outstanding invoices. Consistent with the terms of the Engagement Letter, Blank Rome regularly provided Locke Property with invoices for legal fees and disbursements. Blank Rome has 116012.00601/21206546v1 repeatedly requested that Locke Property pay the outstanding invoices. Blank Rome has outstanding invoices for every month dating back seventeen months to May, 2003. Blank Rome continued to provide legal services to Locke Property. Moreover, Blank Rome has provided Locke Property almost two years to pay the outstanding legal bills or otherwise make a payment arrangement, but Locke Property has not done so. Blank Rome can no longer provide legal services without being paid. 6. Based upon Locke Property's communications to Blank Rome, and Locke Property's failure to fulfill his obligations to Blank Rome, it is clear that the necessary ingredients for anattorney-client relationship between Locke Property and Blank Rome do not exist. 7. Blank Rome notified Locke Property beginning in January 2002 that it must be paid or it would withdraw as counsel. Locke Property repeatedly assured Blank Rome that it would seek another counsel. On October 16, 2003, Locke Property was again advised that Blank Rome had not been paid and that it was no longer possible for Blank Rome to represent Locke Property and requested that he immediately take steps to retain other counsel. A copy of this letter has not been attached as it contains privileged and confidential information but it will be provided to the Court for in camera inspection upon request. On October 21, 2003 Blank Rome again wrote to Locke Property and expressly stated that it would seek leave to withdraw as counsel nn October 21, 2003. 8. Locke Property has refused to pay any portion of the $16,735.03 of his outstanding legal fees for services rendered and has refused to provide any assurance that any portion of these fees will be paid. 9. This case has been scheduled for a bench trial on November 20 and 21, 2003. ~ iemz.oovotmzoesa6~i 10. Counsel should be permitted to withdraw under Rule 1.16(b) of the Rules of Professional Conduct because the withdrawal can be accomplished at this time without a material adverse effect on Locke Property's interests. Locke Property will have ample time to retain other counsel, and has represented that it has retained replacement counsel. 11. Counsel should be permitted to withdraw under Rule 1.16(b)(4) because Locke Property failed to substantially to fulfill his obligation to counsel by failing to pay fees and costs now owed to Blank Rome as agreed in the Engagement Letter. 12. Counsel should be permitted to withdraw under Rule 1.16(b)(5) because further representation of Locke Property, without financial security or payment of fees, will result in an unreasonable financial burden on counsel. WHEREFORE, Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. Dante, Esquire, seek the entry of an Order granting them leave to withdraw their appearance as counsel for Defendant Locke Property in this matter, together with such other relief as the Court deems just. Dated: Octob~~, 2003 A!'exand D. BonojlPA LD. #25£ Frank ante (PA LD. #87888) BL ROME LLP One L gan Square Philadelphia, PA 19103 215-569-5500 215-569-5555 (fax) Attorneys for Defendant, Locke Property Company, Inc. 116012.00601Y21206546v1 I, Alexander D. Bono, Esquire, hereby verify that the facts set forth in the foregoing Petition to Withdrawal as Counsel are true and correct to the best of my knowledge, information and belief. I understand that the facts stated in the Petition are made subject to the penalties of 18 P.S. §4904 relating to unsworn falsification to authorities. °-~~ ~' D. BONO, ESQUIRE a~s~~c~ ]16012.00601/21206546v1 CERTIFICATION OF SERVICE I, Frank A. Dante, attorney for Defendant Locke Property Company, Inc., do hereby certify that the following are all of the known addresses of my client. Locke Property Company, Inc. 46 Central Street Manchester-By-The-Sea, MA 01944 and that a copy of the Motion and this Notice have been mailed to the address above and to counsel for Plaintiff Craig Diehl by first class mail and facsimile on October ~3 , 2003. Date: ~(~~ L'3~ O~ Frank A. Dante, Esquire 116012.00601/21206546v1 _„~i--- -...~.L ~lel Z ll ~OQ~ Q~ WITHDRAWAL NOTICE TO: LOCKS PROPERTY COMPANY, INC. RE: R.J. FISHER & ASSOCIATES, INC. V. LOCKS PROPERTY COMPANY, INC. NO. 01-5477 You are hereby notified that the undersigned has filed a Petition to Withdraw as counsel in this case. A copy of the Petition is attached to this notice. If you object to this request, you must object in writing within ten (10) days to: Honorable Edward E. Guido Court of Cornmon Pleas for the County of Cumberland Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 If no written objection is received within ten (101 days, the Petition may be granted. LLP Date: Octob~ , 2003 xire (PA LD. #25845) (PA I.D. #87888) ''BLANROME LLP One Lo an Square Philade hia, PA 19103 215-569-5500 215-569-5555 (fax) t16072.00601/21206546v1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., Plaintiff, v. LOCKS PROPERTY COMPANY, INC., Defendant. ORDER AND NOW, this day of 2003 upon the Petition of Defense Counsel to Withdraw Their Appearance on Behalf of Defendant Locke Property Company, Inc., it appearing that Defendant Locke Property Company, Inc., showed good cause, it is hereby ORDERED that counsel for Defendant, Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. Dante, Esquire, are hereby granted leave to withdraw as counsel for Defendant Locke Property Company, Inc. in this matter; ORDERED that Defendant, Locke Property Company, Inc. is directed to retain substitute counsel within days of the entry of this Order. NO. 01-5477 CNIL ACTION -LAW BY THE COURT Edward E. Guido, J. 116012.00601/21206546v1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RJ. FISHER & ASSOCIATES, INC,, Plaintiff, v. NO.OI-5477 CIVIL ACTION -LAW LOCKS PROPERTY COMPANY, INC., Defendant. PETITION OF DEFENSE COUNSEL TO WITHDRAW THEIR APPEARANCE ON BEHALF OF LOCKS PROPERTY COMPANX. INC. r_, w 0 _> -~, ~,. ,.-~ ~n ~r The law firm of Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. Dante, Esquire, hereby move to withdraw their appearance on behalf of Defendant, Locke Property Company, Inc. In support of their motion, counsel represents as follows: ~~ ~1 -, ,, ;, =; ~, ~':, -; ;, _:., On or about February 16, 2001, Alexander D. Bono, Esquire of Blank Rome LLP ("Blank Rome") entered their appearance on behalf of Defendant Locke Property Company, Inc. ("Locke Property"} in this matter. 2. The terms of Locke Property's engagement of Mssrs. Bono and Dante and Blank Rome are documented in a letter dated February 4, 2002 (the "Engagement Letter"). The Engagement Letter is not attached to this Petition because it contains privileged and confidential information, but will be provided to the Court for an in camera inspection upon request. 4. There is a total outstanding and unpaid balance of $16,735.03 for legal fees for work which had been done on Locke Property's behalf by Blank Rome in this matter. Blank Rome has repeatedly requested that Locke Property pay the outstanding invoices. 5. Consistent with the terms of the Engagement Letter, Blank Rome regularly provided Locke Property with invoices for legal fees and disbursements. Blank Rome has ~> c= .~,? nor ~' c. . c~~. -, ,__ <: ~_> °~- 116012A0601/21206546v1 repeatedly requested that Locke Property pay the outstanding invoices. Blank Rome has outstanding invoices for every month dating back seventeen months to May, 2003. Blank Rome continued to provide legal services to Locke Property. Moreover, Blank Rome has provided Locke Property almost two years to pay the outstanding legal bills or otherwise make a payment arrangement, but Locke Property has not done so. Blank Rome can no longer provide legal services without being paid. 6. Based upon Locke Property's communications to Blank Rome, and Locke Property's failure to fulfill his obligations to Blank Rome, it is clear that the necessary ingredients for an attorney-client relationship between Locke Property and Blank Rome do not exist. Blank Rome notified Locke Property beginning in January 2002 that it must be paid or it would withdraw as counsel. Locke Property repeatedly assured Blank Rome that it would seek another counsel. On October 16, 2003, Locke Property was again advised that Blank Rome had not been paid and that it was no longer possible for Blank Rome to represent Locke Property and requested that he immediately take steps to retain other counsel. A copy of this letter has not been attached as it contains privileged and confidential information but it will be provided to the Court for in camera inspection upon request. On October 21, 2003 Blank Rome again wrote to Locke Property and expressly stated that it would seek leave to withdraw as counsel on October 21, 2003. 8. Locke Property has refused to pay any portion of the $16,735.03 of his outstanding legal fees for services rendered and has refused to provide any assurance that any portion of these fees will be paid. 9. This case has been scheduled for a bench trial on November 20 and 21, 2003. 1160I2.00601/21206546v1 10. Counsel should be permitted to withdraw under Rule 1.16(b) of the Rules of Professional Conduct because the withdrawal can be accomplished at this time without a material adverse effect on Locke Property's interests. Locke Property will have ample time to retain other counsel, and has represented that it has retained replacement counsel. 11. Counsel should be permitted to withdraw under Rule 1.16(b)(4) because Locke Property failed to substantially to fulfill his obligation to counsel by failing to pay fees and costs now owed to Blank Rome as agreed in the Engagement Letter. 12. Counsel should be permitted to withdraw under Rule 1.16(b)(5) because further representation of Locke Property, without financial security or payment of fees, will result in an unreasonable financial burden on counsel. WHEREFORE, Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. Dante, Esquire, seek the entry of an Order granting them leave to withdraw their appearance as counsel for Defendant Locke Property in this matter, together with such other relief as the Court deems just. Dated: Octob~~, 2003 D. Bonol~'A LD. Frank bante (PA LD. #87888) BLA ROME LLP One L gan Squaze Philadelphia, PA 19103 215-569-5500 215-569-5555 (fax) Attorneys for Defendant, Locke Property Company, Inc. 116012.00601/21206546v1 I VERIFICATION I, Alexander D. Bono, Esquire, hereby verify that the facts set forth in the foregoing Petition to Withdrawal as Counsel are true and correct to the best of my knowledge, information and belief. I understand that the facts stated in the Petition are made subject to the penalties of 18 P.S. §4904 relating to unsworn falsification to authorities. ~~ V D. BONG, ESQUIItE ~LS~`{~ 116012.00601/21206546v] CERTIFICATION OF SERVICE I, Frank A. Dante, attorney for Defendant Locke Property Company, Inc., do hereby certify that the following are all of the known addresses of my client. Locke Property Company, Inc. 46 Central Street Manchester-By-The-Sea, MA 01944 and that a copy of the Motion and this Notice have been mailed to the address above and to counsel for Plaintiff Craig Diehl by first class mail and facsimile on October ~3 , 2003. Date: ~tL'~O~ 'T..~+-~ Frank A. Dante, Esquire 116012.00601/21206546v1 ro ~ ~~n N• m a r p a r x ¢o mw ~ ra• ro~ x d r- m a w ,Q a C rF v m roy• ~m i--' N ~ ~ r O W C1 w A ~ rn v ro ~ ~• xy ~• n ~ rw• rp ad r r• romm m x • xr o- ~a ~n~~ O N F-~ I~ r t~o ~V M 1 t ~ _ ~') L6a. ~ `i~/.~ ~../g °~, 1~° ~; «. ,~{ ~~ N O ~Q W ~ !~ O O ~ ~ O W Z y _~ A °0 ~. w N N N W N ~ L M O U O V ~ m N L_ r O ~ ~ Y m v ism ~ n ~ v m m r O d O Fn M .~ ~ Q~ ~ ~ a ~ .-r N a Ca A ~ ~ .~ ~ ~ ~ofl `i~~/ ICI W ~ ~ wr~oa 0 H Ti/13/2003 09:27 FAX BLANK ROME f~1j002 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IC.,I. FISHER & ASSOCIATES, INC., Plaintiff; v. Li )CKE PROPERTY COMPANY, INC., Defendant. Tu the Prothonotary: NO.01-5477 C1V]L ACTION -LAW Kindly substitute Robert R. Long, Jr., Esquire in as counsel to replace Alexander D. I3~ mo, Esquire, Frank A. Dante, Esquire and the law firm of Blank Rome LLP as counsel in the a1 ove captioned matter. R Ebert R. Long, Jr, `est Long LLC 105 N. Front Street, I~J:urisburg, PA 17101 717-233-5051 7~7-234-7517 (fax) Elated: Novemberl~ 2003 ~ ~~-~_ Alexander D. Bono (Pa. Id. 25845) /~/' /lid/2U~3 Frank A. Dante (Pa. Id. 87888) BLANK ROME LLP One Logan Square Philadelphia, PA 14103 215-569-5500 215-569-5555 (fax) n soy z.oocovz i zo~~7o~~ ~ ,_. ~ ;, ;. ~- ,~ FY 1 ~[' .__ ~ - ~ ~ i ~ L. ~ -r: -- i C ` v'~ ~'li ~ _ ~~ ~~ ~1 ~~ R.J. FISHER and IN THE COURT OF COMMON PLEAS OF ASSOCIATES, INC. :CUMBERLAND COUNTY, PENNSYLVANIA V. LOCKE PROPERTY N0. 2001-5477 CIVIL TERM COMPANY, INC. ORDER OF COURT AND NOW, this 27T" day of OCTOBER, 2003, it appearing that trial in this matter is imminent, and it further appearing that an agreed upon order requiring exhibits to be exchanged and Motions in Limine to be filed within days, the petition of Defendant's counsel to withdraw their appearance at this late date is DENIED. Each of the deadlines set in our order of October 21, 2003, shall be extended by five (5) days. Edward E. Guido, J. /Craig A. Diehl, Esquire For the Plaintiff ~exander D. Bono, Esquire ~ d rank A. Dante, Esquire For the Defendant :sld ~~ RK~ Ib•~'1-63 ~.. w ~'IiW'!ti i1,SNN3~ f~~~irn ~~.~'~~-11`~Y 1`i iV ((44 ~1 3Jt~~?l.P-`J~~iF~ 10/27/03 MON 09:45 FAX 2406460 CLIMB/COUNTY COURTS (~3J 001 ! ~**~a~**~a:**a:e***x~*~* **ra TX REPORT *~* TRANSMISSION OK TX/RX NO 2612 CONNECTION TEL 912158325645 CONNECTION ID ST. TIME 10/27 09:45 USAGE T 00'27 PGS. SENT 1 RESULT OK R.J. FISHER and IN THE COURT OIF COMMON PLEAS OF ASSOCIATES, INC. : CUMOERLAND COUNTY, PENNSYLVANIA V. LOCKS PROPERTY : N0.2001-5477 ClNTL TERM COMPANY, INC. ORDER OF COURT AND NOW, this Z7T" day of OCTOBER, 2003, it appearing that trial in this matter is imminent,, and it further appearing that an agreed upon order requiring exhibits to be exchanged and Motions in Limine to be filed within days, the petition of Defendant's counsel to withdraw their appearance at this late date is DENIED, Each of the deadlines set in our order of October 21, 2003, shall be extended by five (5) days. BLANK~ROME«P COUNSELORS AT LAW Phone: (215) 569-5645 Fax: (215) 832-5645 Email: dance@b[ankrome.com October 23, 2003 VIA FEDERAL EXPRESS The Honorable Edward E. Guido Court of Common Pleas for the County of Cumberland Cumberland County Courthouse One Courthouse Squaze Carlisle, PA 17013 Re: R.J. Fisher & Associates, Inc. v. Locke Property Company, Inc. Civil Action No. 01-5477 Dear Judge Guido: Enclosed please fmd a courtesy copy of Defense Counsel's Petition to Withdraw their appeazance on behalf of Defendant Locke Property Company, Inc., which was filed with the Prothonotary today. Respectfully, FRANK A. DANTE FAD:jb Enclosure cc: Craig Diehl, Esquire William Locke (both via facsimile and regular mail) One Logan Square 18th & Cherry Streets Philadelphia, PA 19103-6998 www.BlankRome.com 116012.00601/212073are Florida Maryland • New Jersey New York Ohio Pennsylvania Washington, DC emu; a WITHDRAWAL NOTICE TO: LOCKS PROPERTY COMPANY, INC. RE: R.J. FISHER & ASSOCIATES, INC: V. LOCKS PROPERTY COMPANY, INC. NO.OI-5477 You are hereby notified that the undersigned has filed a Petition to Withdraw as counsel in this case. A copy of the Petition is attached to this notice. If you object to this request, you must object in writing within ten (10) davs to: Honorable Edward E. Guido Court of Common Pleas for the County of Cumberland Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 If no written objection is received within ten (10) davs, the Petition may be granted. LLP Date: Octob~ , 2003 zire (PA I.D. #25845) (PA I.D. #87888) BLANlROME LLP One Lo an Square Philade hia, PA 19103 215-569-5500 215-569-5555 (fax) 116012.0060V21206546v1 ~~ i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., Plaintiff, NO.O1-5477 CIVIL ACTION -LAW v. LOCKS PROPERTY COMPANY, INC., Defendant. ORDER AND NOW, this day of 2003 upon the Petition of Defense Counsel to Withdraw Their Appearance on Behalf of Defendant Locke Property Company, Inc., it appearing that Defendant Locke Property Company, Inc., showed good cause, it is hereby ORDERED that counsel for Defendant, Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. Dante, Esquire, are hereby granted leave to withdraw as counsel for Defendant. Locke Property Company, Inc. in this matter; ORDERED that Defendant, Locke Property Company, Inc. is directed to retain substitute counsel within days of the entry of this Order. BY THE COURT Edward E. Guido, J. 116012.0060]/2t206546v1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., NO.OI-5477 Plaintiff, CNIL ACTION -LAW v. LOCKS PROPERTY COMPANY, INC., Defendant. PETITION OF DEFENSE COUNSEL TO WITHDRAW THEIR APPEARANCE'ON BEHALF OF LOCKS PROPERTY COMPANY INC. The law film of Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. Dante, Esquire, hereby move to withdraw their appearance on behalf of Defendant, Locke Property Company, Inc. In support of their motion, counsel represents a5 follows: 1. On or about February 16, 2001, Alexander D. Bono, Esquire of Blank Rome LLP ("Blank Rome") entered their appearance on behalf of Defendant Locke Property Company, Inc. ("Locke Property") in this matter. 2. The terms of Locke Property's engagement of Mssrs. Bono and Dante and Blank Rome are documented in a letter dated February 4, 2002 (the "Engagement Letter"). The Engagement Letter is not attached to this Petition because it contains privileged and confidential information, but will be provided to the Court for an in camera inspection upon request. 4. There is a total outstanding and unpaid balance of $16,735.03 for legal fees for work which had been done on Locke Property's behalf by Blank Rome in this matter. Blank Rome has repeatedly requested that Locke Property pay the outstanding invoices. 5. Consistent with the terms of the Engagement Letter, Blank Rome regularly provided Locke Property with invoices for legal fees and disbursements. Blank Rome has 116012.00601 /21206646v l repeatedly requested that Locke Property pay the outstanding invoices. Blank Rome has outstanding invoices for every month dating back seventeen months to May, 2003. Blank Rome continued to provide legal services to Locke Property. Moreover, Blank Rome has provided Locke Property almost two years to pay the outstanding legal bills or otherwise make a payment arrangement, but Lockc Property has not done so. Blank Rome can no longer provide legal services without being paid. 6. Based upon Locke Property's communications to Blank Rome, and Locke Property's failure to fulfill his obligations to Blank Rome, it is clear that the necessary ingredients for anattorney-client relationship between Locke Property and Blank Rome do not exist. Blank Rome notified Locke Property beginning in January 2002 that it must be paid or it would withdraw as counsel. Locke Property repeatedly assured Blank Rome that it would seek another counsel. On October 16, 2003, Locke Property was again advised that Blank Rome had not been paid and that it was no longer possible for Blank Rome to represent Locke Property and requested that he immediately take steps to retain other counsel. A copy of this letter has not been attached as it contains privileged and confidential information but it will be provided to the Court for in camera inspection upon request. On October 21, 2003 Blank Rome again wrote to Locke Property and expressly stated that it would seek leave to withdraw as counsel on October 21, 2003. 8. Locke Property has refused to pay any portion of the $16,735.03 of his outstanding legal fees for services rendered and has refused to provide any assurance that any portion of these fees will be paid. 9. This case has been scheduled for a bench trial on November 20 and 21, 2003. 116012.0060]/21206546vt 10. Counsel should be permitted to withdraw under Rule 1.16(b) of the Rules of Professional Conduct because the withdrawal can be accomplished at this time without a material adverse effect on Locke Property's interests. Locke Property will have ample time to retain other counsel, and has represented that it has retained replacement counsel. 11. Counsel should be permitted to withdraw under Rule 1.16(b)(4) because Locke Property failed to substantially to fulfill his obligation to counsel by failing to pay fees and costs now owed to Blank Rome as agreed in the Engagement Letter. 12. Counsel should be permitted to withdraw under Rule 1.16(b)(5) because further representation of Locke Property, without financial security or payment of fees, will result in an unreasonable financial burden on counsel. WHEREFORE, Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. Dante, Esquire, seek the entry of an Order granting them leave to withdraw their appearance as counsel for Defendant Locke Property in this matter, together with such other relief as the Court deems just. Dated: Octob~~, 2003 D. Bonoll'A LD. Frankbante (PA I.D. #87888) BL ROME LLP One L gan Squaze Phtladelphia, PA 19103 215-569-5500 215-569-5555 (fax) Attorneys for Defendant, Locke Property Company, Inc. 116012.00601/21206546v1 VERIFICATION I, Alexander D. Bono, Esquire, hereby verify that the facts set forth in the foregoing Petition to Withdrawal as Counsel are true and correct to the best of my knowledge, information and belief. I understand that the facts stated in the Petition are made subject to the penalties of 18 P.S. §4904 relating to unsworn falsification to authorities. • ~~ ~ D. BONG, ESQUIItE ~s~~cs 176012.00601/21206546v1 ~ - ._ CERTIFICATION OF SERVICE I, Frank A. Dante, attorney for Defendant Locke Property Company, Inc., do hereby certify that the following are all of the known addresses of my client. Locke Property Company, Inc. 46 Central Street Manchester-By-The-Sea, MA 01944 and that a copy of the Motion and this Notice have been mailed to the address above and to counsel for Plaintiff Craig Diehl by first class mail and facsimile on October ~3 , 2003. Date: ~~~L'31~~ Frank A. Dante, Esquire 116012.00601/21206546v1 .. ~. .~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RJ. FISHER & ASSOCLATES, INC., Plaintiff, v. LOCKS PROPERTY COMPANY, INC., Defendant. NO.O1-5477 CIVIL ACTION -LAW ORDER AND NOW, this ~~ day of ~ 2003, upon the request of the parties, it is hereby ORDERED and DECREED that the following deadlines set forth in the Court's July 29, 2003 Pretrial Order are hereby changed: (1) the October 20, 2003 deadline for exchanging proposed exhibits is moved to October 27, 2003; (2) the October 27, 2003 deadline for filing motions in limine is moved to November 3, 2003; and (3) the November 7, 2003 deadline for filing replies to motions in limine is moved to November 14, 2003. cc: ~raig A. Diehl, Esquire For the Plaintiff /Nrank A. Dante, Esquire For the Defendant Court Administrator By the C Edward E. Guido, 7. ~ ~0.~ /~~ J io -aa~~ 116012.00601/21205854v1 1~ _ .. ` BLANK~ROMEuP COUNSELORS AT LAW Phone: (215) 569-5645 Fax: (215) 832-5645 Email: dan[e@b[ankrome.com October 20, 2003 VIA FEDERAL EXPRESS The Honorable Edward E. Guido Court of Common Pleas for the County of Cumberland Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: RJ. Fisher & Associates, Inc. v. Locke Property Company, Inc. Civil Action No. 01-5477 Dear Judge Guido: Pursuant to a telephone conversation that I had today with Sandy in your chambers, enclosed please find a Proposed Order that alters the deadlines established by the Court's July 29, 2003 Order for exchanging exhibits and filing motions in limine. Counsel for both parties have agreed to the proposed changes, and respectfully request the Court's approval. Respectfully, FRANK A. DANTE FAD:jb Enclosure cc: Craig Diehl, Esquire (via facsimile) One Logan Square 18th & Cherry Streets Philadelphia, PA 19103-6998 www.BlankRome.com Delaware Florida . Maryland New Jersey . New York Ohio . Pennsylvania . Washington, DC 116012.00601 /21205859v1 ~~~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RJ. FISHER & ASSOCIATES, INC., Plaintiff, NO. 01-5477 CIVIL ACTION -LAW v. LOCKS PROPERTY COMPANY, INC., Defendant. ORDER AND NOW, this' day of C~ 2003, upon the request of the parties, it is hereby ORDERED and DECREED that the following deadlines set forth in the Court's July 29, 2003 Pretrial Order are hereby changed: (1) the October 20, 2003 deadline for exchanging proposed exhibits is moved to October 27, 2003; (2) the October 27, 2003 deadline for filing motions in limine is moved to November 3, 2003; and (3) the November 7, 2003 deadline for filing replies to motions in limine is moved to November 14, 2003. cc: Craig A. Diehl, Esquire For the Plaintiff Frank A. Dante, Esquire For the Defendant Court Adrninistrator By the C , Edward E. Guido, J. 116012.00601/21205854x1 ~F ~ffia%"¢l 9~tfi'~-@3s4 n v. t_s_..~ .~+ - Bk °Y.~NA §~k&~kLs~sl ~'-fycw vu.zs~...~sv..4'~e'~~~ -F _ <..w'awL..{ ~~ fl ~~ it i ~-JI ~Ijr~ ,-~; ~,,.~._, ,_,,,~~il~~i~; r4~, ;, ;U'.-'. .i-~ ealm'LNfa:JR'3idtihld:t+3L -A~L+i+:Rt'IE.~B~SM^_'@¢„'s~AiYi..._' ' ~~~~ R.J. FISHER & ASSOCIATES, INC. V. LOCKE PROPERTY COMPANY, INC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-5477 CIVIL CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 23RD day of JULY, 2003, the pretrial conference in the above-captioned matter scheduled for July 18, 2003, at 11:00 a.m. has been rescheduled for TUESDAY, JULY 29, 2003, at 3:00 p.m. in Chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. A Pretrial memorandum shall be submitted by counsel in accordance with C.C.R.P. 212-4. TRIAL in the matter will be scheduled at the pretrial conference. Counsel is directed to have their calendars available. Craig A. Diehl, Esquire Frank A. Dante, Esquire Court Administrator :sld • ~~ 5~.4:n: ~:.. ~.~ ^~ ~~~ I'mo' n` it is tAli j ~ n -. - /1 l.~ I v r ~ ~ ill.. 3 R.J. FISHER & ASSOCIATES, INC. ~~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. LOCKE PROPERTY COMPANY, INC NO. 2001-5477 CIVIL CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 10TH day of JULY, 2003, a pretrial conference in the above-captioned matter scheduled for FRIDAY, JULY 18 2003, at 11:00 a.m. in Chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. TRIAL in the matter will be scheduled at the pretrial conference. Counsel are directed to have their calendars available. Edward E. Guido, J. Craig A. Diehl, Esquire Frank A. Dante, Esquire Court Administrator :sld u.Y.y. __ _ _ .. _ _ ' [t+IDa kFYE~'*t a. d .e . o ~ r .. _ n ~ r, / an-!Y $553.31 a _ WRHr..~ ti~mrGt,~~,~~n~nr~aNn~ ~r, ,,, ~ , ~,'~ ~~~ .:~ E 1 iii ~~ `0 ~~~ :~ PU ! .~I OFFICE OF THE COURT ADMINISTRATOR CUMBERLAND COUNTY COURT OF COMMON PLEAS 1 Courthouse Square Carlisle, PA 17013 Taryn N. Dixon Phone Court Administrator (717) 240-6200 (717) 697-0371 (717) 532-7286 (717) 240-6460 FAX MEMORANDUM TO: The Honorable Edward E. Guido FROM: Melissa H. Calvanelli, Assistant Court Administrator DATE: July 2, 2003 IN RE: 01-5477 Civil Action -Law R. J. Fisher & Associates, Inc. v. Locke Property Company, Inc. Melissa H. Calvanelli Assistant Court Administrator The above case is assigned to you for a non jury trial. Please provide me with copies of your scheduling orders and final disposition date so that I can monitor the case for statistical purposes. Attachment TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( ) for JURY trial at the next term of civil court. C ~ ~, ( X) for trial without a jury. r rt~ - - ~~ ~+---- ~ CAPTION OF CASE ~~ ~ ~.~^ (entire caption must be stated in full) (check one) ~%+ „~ =~ (X) Civil Acti~i~ Laxer ~~r. `~~`'' ~ ( ) Appeal from Aibiiti'ati8n R. J. FISHER & ASSOCIATES, INC., (Plaintiff) vs. (other) The trial list will be called on and August 12, 2003 LOCKE PROPERTY COMPANY, INC., vs. (Defendant ) Trials commence on September 8, 2003 Pretrials will be held on August 20, 2003 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 5477 Civil X~I 2001 Indicate the attorney who will try case for the party who files this praecipe: Cram A. Diehl, Esquire/Law Offices of Craig A. Diehl Indicate trial counsel for other parties if known: Alexander D. Bono, Esquire, and Frank A. Dante, Esquire/Blank Rome LLP This case is ready for trial. Date: June 20, 2003 Signed: ~'~~ Print Name: Craig A. Diehl, Esquire Attorney for: Plaintiff m ...~...` _. .. .. ....... a _..__...: 1.... .:. .. ,_ mdS3...d. o~.. SL1L.28.2003 10~14RM CRAIG R DIEHL ESQ ND. 135 P.2i6 >N Ts~ corn~~ aF col~oN PLE.A,S of CUIVIBERLANU COUNTY, PENNBYLVANTPi lt. r. Flsz~ ~ AssoCXAT~S,INC., Plaintiff xo. of-sa~~ J U L 2 8 2003 v. T.OCICE P1ZOP131tT'Y COMPAN"Y',1NC., ]defendant . CI'VXC. AC'T'ION' - I.,AW P1tTTRTdi, 1VIEMUR4N%lUM OF PLAIlVTIFF R 7 bRSHTR & ASSOCIATES INC T. STATEMEM' OF FACTS A5 TO i I,e RIr ~V Plaintiff and Aefendaut entered ittty au oral agreeineut for prvfesslvual engineer wg and planning services to be performed by Plaintiff for the benefit of Defendant on or about p'ebruary, 2001. Services to be rendered by Plaintlfk'were related to the project known as the GVolden Triangle, Plaintiffeommencedmgineering services pursuant to this oral agreement acid by instrtwtiun from Dnfnnclruit. Eventually, a wriltan agreement was nxcculcd by the panties approving the written proposal by Plaintiff on or about March 23, 2001. Plaintiff continued to provide professional engineering services through May 31, 2001, at which time services stopped due to nonpayment of invoices submitted. Said invoices amount to $20,488.86 with interest to accrue at 1 %z% per month on delinquent balances after 30 days from the invoice date. The instant proceeding seeks recovery of this outstanding balance plus accnled interest. JUL.z8.2903 10:14RM CRRIG R DIEHL ESQ N0. 135 P.3i6 Flaintiff acknowledges that the March 23, 2001 contract executed by the parties did designate that the contract was to be replaced by standard fuxu~ ASCII/contract documents. It is further aclrnowledged that on or about May 9, 2001, a sample ASCE agreement was provided to Plaintiff I lowever, this sample agreement materially changed the scope of work and requirements of what was expected of Plaintiff by 1efendant. Plaintiff offered to meet with Defendant to discuss these new issues, however, Defendant failed to rehun phone calls and failed to show up for a Scheduled meeting to discuss the contractual issues, Additionally, what was even more alarming was that as of May 9, 2001, 90.09/0 of the scope of work in the March 23.2001 agreement had already been completed. Plaintiff believes that all work performed was done iu a tunely uiauner couslderu~g Defendant's lackofcommunication, wasperfonxled in aprofessional matmer, andbenefitted Defendant's objectives. II. ST'ATEMEN'Y' OP FACTS AS TO DAMAQES Plaintiff seeks judgment on the outstanding balance of $20,688,86 plus accrued interest at the rate of 18,0% per annum plus casts of this pmeeedittg. Defendant seeks judgment in exaecc of ,~ 150,000.00 for claims that include fraud, deceit, misrepresentation, malpractice, breach of covenant of good thtth and fair dealings, tortious interference with conttact and prospective contract, breach of contract, defamation, and declaratory judgment. 2 Jl1L~.28.2003 10~15RN CRRIG A DIEHL E5Q N0.135 P.Ai6 ITT. STATI?MENT AS TO THE PRINCIPAL I33LiFS OF LI ILITY AND DA~?AGES Plaintiff avers that a written oontraet exists betweer<the pareies that was brcachcd by Defendant for failure to pay for engineering services. These services done for the benefit of Aefendant at reasonable, customary rates for similar enoE±±±~~ work total $20,688.86. I`V. SUMMARY OF LEGAL ISST.TI;S A. Aid Defendant breach the oral and written agreements by failing to pay for ' engineering selvices rendered by Plaintiff? V. IDENTITY Or WITNL+SSIrS A. Robert r. Fisher B, Beth Fisher C, William Loeke D. Mark X. DiSanto E. All witnesses on Defendant's list F. Plaintiff reserves the right to supplement 'V•I. LIST bF LtXIIIDTP9 i~i7ITH BRIEF IDENTIFICATION OF EACH A. May 1, 2000 proposal that was executed by William Locke, President, on March 23, 2001 B. Invoices from Plaintiff to Defendant related to the Crolden Triangle project 3 JLIL.28.2003 10~15RM CRRIG R DIEHL ESQ N0. 135 P.Si6 C. Phone records of R. J. Fisher 8t Associates, Inc. during the period of time that services were being performed Fox Defendant D. July 12, 2001 letter to Defendant from PlaintifPregarding delinquent balance ovued E, June 6, 2001 letter regarding disputed issues F, Standard Form of Agreement between Omer and Engineer G, Preliminary Projeot Sahedula For Golden Triangle which includes tentative submission deadlines H. Plaintiff reserves the right to supplement VII, ST T[7S OF SETTLEMENTNEC~OTIATIONS Plaintiff has offered to settle if it receives the sutra of $10,000.00 which has been rejected by Defendant. 12espeotfully submitted, LAW OFFICES OF CRAIG A. DIEHL i Dated: f_ uT~ 2Bd~ 13y: ~.,.~.,,~. /~. Craig .Diehl, Esquire Attomcy IT) No. 52801 3464 Trindle Road Camp Hill, PA 1701 T-443b (71.7) 763.7F1'i Counsel for Plaintlfl:' 4 7L1L.28.2003 10~15RM CRRI6 R DIEHL ESQ N0. 135 P.6i6 IN'3'~+ COURT OF COMMON PLEAS OF CU10~BERI,ANri COUNTY, PENNSYLVANIA R J, FIBBER & ASSOCIATES, INC., Plaintiff NO.OI-5477 CTVrL ar..rr~N - r,aw W, LOCTCL PROPERTY COMPANY, INC., ; Defendant CERTIFICATE OF SERVICE On this 2$~' day of July, 2003, I, the undersigne$, hereby certify that I have served a true and correct copy of the PItETRTAL MEMORANDUM OF PLAIN'T'IFF, R J. FISHER & ASSOCIA'T'ES, INC. via facsimile to the following party: Alexander D, Bono, Esquire Frank A. Dante, Esquire ALANTC TiQA~I.+ LLP One Logan Square Philadelphia, PA 19I03 Fax No_ (215) 832-5645 LAw OFFICES OF CRAIG A. DIRHL Helen E. mussen, Legal Assistant 3464 Trindle Road Camp ITIII, PA 17011-4436 (717)763-7613 BLANK4ROMEuP COUNSELORS AT LAW Pkone: (275) 569-5645 Fax: (215) 832-5645 Email: dance@blankrome. com July 25, 2003 VIA FEDERAL EXPRESS Ms. Taryn Dixon Court Administrator Court of Common Pleas for the County of Cumberland Cumberland County Courthouse, Room 6200 One Courthouse Square Carlisle, PA 17013 JUL 2 8 2003 ~! Re: R.J. Fisher & Associates, Inc. v. Locke Property Company, Inc. Civil Action No. 01-5477 Dear Ms. Dixon: Enclosed please find an original and two copies of Defendant Locke Property, Inc.'s Pretrial Memorandum for filing. Please return atime-stamped copy of the Pretrial Memorandum in the enclosed postage- ,~~ prepaid envelope. If you have any questions, please give me a call. Thank you for assistance with this matter. Very truly yours, ~~ FRANK A. DANTE FAD:jb Enclosures One Logan Square 18th & Cherry Streets Philadelphia, PA 19103-6998 www.BlankRome.com 116012.00601/211754~6'~rNare Florida • Maryland • New Jersey • New York • Ohio Pennsylvania • Washington, DC "lI 2 8 2003 BLANK ROME LLP By: Alexander D. Bono, Esquire Frank A. Dante, Esquire Identification Nos. 25845/87888 One Logan Square Philadelphia, PA 19103 215-569-5500 Attorneys for Defendant Locke Property Company, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., NO. 01-5477 Plaintiff, CIVIL ACTION -LAW v. LOCKE PROPERTY COMPANY, INC., Defendant. DEFENDANT LOCKE PROPERTY COMPANY, INC.'S PRETRIAL MEMORANDUM Defendant Locke Property Company, Inc. ("LPC"), submits this Pretrial Memorandum pursuant to Local Rule of Civil Procedure 212-4. 1. STATEMENT OF FACTS AS TO LIABILITY LPC is a real estate developer. At all material times, LPC had contract rights to and was ready, willing and able to proceed in the process of acquiring and developing an approximately 48.5 acre parcel of unimproved real estate property called "The Golden Triangle" located in Silver Spring Township, Cumberland County, Pennsylvania ("The Golden Triangle Project"). The Golden Triangle Property was owned by Alex A. DiSanto, 7r., Julia Szabo, and Mark DiSanto (the "Trustees") who obtained the property by the 1993 Irrevocable Trust left by their 116012.0060 1 /2 1 1 75061 v 1 parents, Alex and Dora DiSanto, and by Mark X. DiSanto, John M. DiSanto, and John DiSanto, who obtained their ownership from their parents, Alex and Dora DiSanto. Fisher, Inc. held itself out as having professional engineering and planning expertise, particularly in land planning, site design, construction and landscape architecture, and with particular familiarity with Silver Spring Township, Cumberland County, Pennsylvania and The Golden Triangle Project. Robert J. Fisher, PLS., PE ("Fisher') held himself out as a licensed engineer with professional engineering and planning expertise, particularly in the areas of land planning, site design, construction, landscape architecture, and with particular familiarity with Silver Spring Township, Cumberland County, Pennsylvania and The Golden Triangle Project. On or about July 10, 2000, LPC made a written Agreement of Purchase and Sale with the Trustees and Mark X. DiSanto and John M. DiSanto ("P&S Agreement"). By the P&S Agreement (§§1 and 2), the Trustees, Mark X. DiSanto and John M. DiSanto agreed to sell The Golden Triangle Project to LPC for $1.5 million. By letter dated November 2, 2000, the parties agreed to reduce the purchase price of the property by up to $250,000.00 because the site costs were higher than originally estimated. By the P&S Agreement (§3(a)), LPC made a $60,000 cash escrow deposit for The Golden Triangle Project ("Deposit"). By the P&S Agreement (§C(6)and (32) and §3(b)), the Trustees, Mark X. DiSanto and John M. DiSanto agreed with LPC that the balance of the purchase price would be paid on or before the "Closing Date", which was agreed to be thirty (30) days after the "Permit Date", which was agreed to be the date on which LPC received all final, permits, licenses and approvals to develop, build, use and operate The Golden Triangle Project, including approvals by the Township of Silver Spring and other governmental authorities having jurisdiction over the Land Development Plan, Preliminary Subdivision Plan and Final Subdivision Plan, and revisions to 116012.00601/21175061v1 the flood plain by the Federal Emergency Management Agency ("FEMA"); but in no event more than eighteen months after the P&S Agreement's date. In August, 2001, in recognition of the delays caused by the defendants that are described below, the parties agreed to extend the "Outside Date" until July 10, 2002. By the P&S Agreement (§ 12(b)(vii) and (xii)), the Trustees, Mark X. DiSanto and John M. DiSanto represented that assignment of all development plans, land development plans, preliminary subdivision plans, fmal subdivision plans, structural reviews, architectural drawings and engineering, soil, seismic, geologic, environmental and architectural reports, studies and certificates and other documents concerning The Golden Triangle Project ("Plans") to LPC did not require the consent of third parties, and that they had good and marketable title to such Plans, which were fully paid for and free and clear of any claims, disputes, liens or encumbrances. By the P&S Agreement (§ 12(d)(i) and (ii)), the Trustees and Mark X. DiSanto and John M. DiSanto represented that: (i) they would use due diligence and best efforts to keep in full force and effect the terms of a Settlement Agreement made June 8, 1994 by and between Alex A. DiSanto and Dona L. DiSanto, TCC, and the Township of Silver Spring ("1994 Settlement AgreemenP'), comply with governmental regulations and keep LPC advised concerning developments about the 1994 Settlement Agreement; (ii) they would not change the terms of the 1994 Settlement Agreement or enter into any contracts, restrictions or obligations affecting The Golden Triangle Project without LPC's prior written consent; (iii) they would not file any development plans, subdivision plans or other plans with any governmental authorities concerning The Golden Triangle Project, without LPC's prior written consent; and (iv) they would not seek zoning approvals or change in variances regarding The Golden Triangle Project, without LPC's prior written consent. 116012.00601/21175061v1 By the P&S Agreement (§ 12(d)(iii)), the Trustees, Mark X. DiSanto and John M. DiSanto represented that they: (i) would fully cooperate regarding LPC's plans for The Golden Triangle Project and would not hinder, delay or impair LPC from filing or obtaining any and all project approvals regarding plans for The Golden Triangle Project; (ii) would take no action to adversely affect or delay or increase LPC's cost of The Golden Triangle Project; and (iii) would not modify the Development Plan, the Preliminary Subdivision Plan, or the Final Subdivision Plan or any uses planned for related property so as to adversely affect or delay or increase LPC's costs regarding The Golden Triangle Project. By the P&S Agreement (§24), defendants Trustees, Mark X. DiSanto and John M. DiSanto agreed that they would: (i) not modify the Land Development Plan, the Preliminary Subdivision Plan, the Final Subdivision Plan or the 1994 Settlement Agreement without LPC's prior written consent; (ii) fully support and join in any modification to those plans and any related project approvals required by LPC in connection with LPC's plans for the project; (iii) execute and deliver any amendments to pending plans relating to the filing and approval that LPC may seek to develop, build or operate the project; and (iv) fully support LPC in seeking project approvals. LPC was introduced to Fisher, Inc. and Fisher by Mark X. DiSanto as exceedingly competent, professional and expert in providing land planning, design, construction, landscape architecture, engineering and planning services, and as having direct experience in the design and planning of The Golden Triangle Project that previously had been submitted to Silver Spring Township by TCC, by or on behalf of the DiSanto Parents as the prior owners of The Golden Triangle Project (the "Prior Plans"), and had been rejected by Silver Spring Township. In or 116012.00601/21175061v1 about August 2000, LPC's President, William E. Locke, Jr. ("Locke"), met with Fisher, Inc. and Fisher. Fisher, on behalf of himself and Fisher, Inc., promoted the professional expertise of himself and of Fisher, Inc. concerning engineering and planning, particularly land planning, azchitecture and engineering services generally, and professional services that had previously been provided to TCC and the DiSanto Parents in the Prior Plans concerning The Golden Triangle Project and that could be provided to LPC concerning The Golden Triangle Project. Fisher, Inc. and Fisher represented that they had already prepared the Prior Plans for TCC and the DiSanto Parents regarding subdivision and land development of The Golden Triangle Project, and that these Prior Plans could be "updated" for LPC's use in acost-effective, efficient manner by Fisher, Inc. and Fisher, and that. such "updating" could result in substantial savings for the cost of professional services that are normally provided in such development projects. Fisher, Inc. and Fisher represented that, as part of their scope of work, their professional services would adhere to the terms of the 1994 Settlement Agreement, in which the Township of Silver Spring agreed to the land development and subdivision of The Golden Triangle property on specified terms; and that they would incorporate those terms and comments from the Township into the "updating" of the Prior Plans. Based on the representations of Fisher, Inc. and Fisher, in or about August 2000, LPC was induced to hire Fisher, Inc. and Fisher to perform professional land planning, architecture and engineering services concerning The Golden Triangle Project, and Fisher, Inc. and Fisher orally agreed to provide those services to LPC ("Oral Professional Services AgreemenP'). In this Oral Professional Services Agreement; it was expressly agreed that Fisher, Inc. and Fisher would efficiently and economically provide professional services by, among other 116012.00601/21175061v1 ~~ things; "updating" the existing Prior Plans concerning subdivision and development of The Golden Triangle Project that Fisher, Inc. and Fisher had prepared, by incorporating changes that adhered to the 1994 Settlement Agreement and the Township of Silver Spring's comments. In or around January, 2000, LPC's Locke advised Fisher and Fisher, Inc. that LPC's financing of The Golden Triangle Project by investors, such as Prudential Real Estate Investors, Inc. and others, would be conditioned on, among other things, the engagement of a professional service provider for architectural, planning and engineering services pursuant to a contract with terms in a standard AIA, ASCE or EJCDC format, and proof of appropriate professional liability enors and omissions insurance coverage. Fisher, on behalf of himself and Fisher, Inc., represented that Fisher, Inc. would provide both the contract in the appropriate standard term format, and proof of adequate professional liability insurance coverage. Fisher, Inc. and Fisher agreed, in or around January 2001, to engage in the conduct described below regarding the redesign of the Prior Plans to incorporate changes that would harm LPC and accrue to the benefit of TCC, Mark X. DiSanto, John M. DiSanto and the Trustees, and the submission of plans to the Township of Silver Spring, without LPC's approval or consent. Fisher, Inc. and Fisher knowingly and intentionally concealed from LPC their plan and agreement to engage in the conduct described below, and the details of their plan and agreement are particularly within their own knowledge. Based on the Oral Professional Services Agreement, and even though Fisher, Inc. and Fisher had not prepared a written contract with terms in the standard term AIA, ASCE or EJCDC format, in or about February 2001, Fisher, Inc. and Fisher began performing professional 116012.00601/21175061x1 services for LPC concerning The Golden Triangle property. Even though Fisher, Inc. and Fisher knew that LPC needed a contract with terms in the standard term AIA, ASCE or EJCDC format in order to satisfy lending and investment requirements, and even though Fisher, Inc. and Fisher had represented that they would prepare a contract with such terms, Fisher, Inc. and Fisher instead sent LPC a "proposal" for "professional engineering and planning services relative to The Golden Triangle project in Silver Spring Township, Cumberland County, Pennsylvania", which was dated May 1, 2000 ("ProposaP'). The Proposal expressly reiterated the oral representation that the professional services would involve "updating the land development and subdivision plan fora 400,000 sq. ft. warehouse as required in the June 8"' 1994 Settlement Agreement, coordination and assistance to HRG regarding the FEMA flood plain boundary, consultations and coordination regarding the Jimmy George tract for utility connections and preparation of an overall subdivision plan to subdivide the warehouse tract from other lands of Triple Crown Corporation and provide for public access roads and utilities to the tract." (emphasis added) On Mazch 23, 2001, LPC signed the Proposal on the express counter-offer condition that the Proposal had "to be replaced [byJ standard form ASCE/contract documents.", as agreed in the prior Oral Professional Services Agreement. LPC, through its president, Locke, repeatedly advised Fisher, Inc. and Fisher of the need for them to satisfy the condition of providing a written contract with terms in the standazd AIA, ASCE or EJCDC format. In Apri12001, LPC again notified Fisher, Inc. and Fisher of the requirement of such a contract in order to satisfy Prudential's lending requirements. Given the failure of Fisher, Inc. and Fisher to prepare and provide a written contract with terms in the standard AIA, ASCE or EJCDC format, LPC prepared a contract according to the appropriate 116012.00601/21175061x] standard needed to satisfy its lender and investors, and sent it to Fisher, Inc. and Fisher on May 9, 2001. Despite LPC's repeated requests concerning the written contract it sent to Fisher, Inc. and Fisher on May 9, 2001, Fisher, Inc. and Fisher ignored requests for a response, and they failed and refused to make the contract in the standard term format as orally agreed, which Fisher, Inc. and Fisher knew was needed by LPC in order to satisfy the lending terms of Prudential to finance the project. Fisher, Inc. and Fisher provided professional services to LPC under the Oral Professional Services Agreement described above; however, Fisher and Fisher, Inc. were negligent in performing those duties and failed to satisfy the standard of care for professionals providing professional engineering, architecture and planning services. Among the failures of Fisher, Inc. and Fisher were: Failure to send to contractors, on a timely basis, copies of plans needed to be used for pricing purposes, and failure to .send complete plans to those contractors (Leon Wintermeyer, Inc., R.S. Mowery & Sons, Inc. and Connewago Contractors, Inc. [the "Contractors"]); Failure to prepare a complete and accurate schedule and, after being advised of numerous errors and omissions in a proposed schedule, failing to update or revise the schedule as requested; Failure to incorporate into the plans the Township of Silver Spring's changes outlined in the 1994 Settlement Agreement; Without notice to or discussion with LPC, making material changes to the plans that were outside the scope of the Settlement Agreement, including the location of an entrance driveway and size of the detention basin, and adding a new detention basin on the South side of the building -all of which increased costs and harm to LPC but benefited the Trustees, Mark X. t t6oiz.oo6ovzi i~so6i~i DiSanto and John M. DiSanto, who had agreed to sell The Golden Triangle Project to LPC, owned adjacent land, and had an existing relationship with Fisher, Inc. and Fisher through TCC and the DiSanto Parents; Advising LPC that unauthorized work would not be removed from the plans without the approval of Mark X. DiSanto; Failure to prepare a complete, organized and professional report outlining compliance with and the status of twenty-two comments made by the Township of Silver Spring; Failure to incorporate into plans comments from LPC, made by Locke and its counsel, Jack F. Hurley, Jr., Esquire; Failure to outline any and all changes made to the plans beyond those required by the 1994 Settlement Agreement notwithstanding the knowledge that such changes jeopardized the Township's approval of The Golden Triangle Project due to deviations from the 1994 Settlement Agreement, and failure to explain the basis for making such changes, despite repeated requests; Failure to meet important project deadlines, including failure to incorporate the Township of Silver Spring's comments and resubmit a complete set of land development and subdivision plans by April 12, 2001; Failure to keep LPC apprised of progress on The Golden Triangle Project on a timely basis; Revision and submissions of plans to the Township of Silver Spring without notice of the revisions to LPC and without authorization from LPC, including refusal to supply to LPC copies of the plans for which the Township required resubmission; 9 116012.00601/21175061v1 Failure to secure a quote for errors and omissions insurance coverage despite notice from LPC that this was a requirement from Prudential; and Failure to prepare and provide and enter into a written contract with terms in the standard AIA, ASCE or EJCDC format. In addition to the failures described above, Fisher, Inc. and Fisher made defamatory remarks that were designed to impure the character, business integrity, business acumen and financial ability of LPC. These included: lil January 2001, Fisher, Inc. and Fisher advised Mark X. DiSanto that The Golden Triangle Project was being held up because LPC had not authorized Fisher to begin work, in order to create the false impression that LPC was unnecessarily delaying the project; Iii or about March 2001, Fisher, Inc. and Fisher sought to create the false impression with Mark X. DiSanto that LPC was unnecessarily delaying the engagement of Herbert Rowland Gnrbic, Inc. ("HRG") as a FEMA consultant, even thought they knew that HRG was still negotiating a contract, that HRG's proposal was based on the development of two buildings and a plan completely inconsistent with The Golden Triangle Project plans, and there were efforts to review work done eight years ago regarding the same project by HRG; Fisher, Inc. and Fisher informed Mark X. DiSanto that Gannett Fleming was delaying the project when, in fact, they knew that Gannett had been released, had requested information from FEMA, and was waiting for a response; Fisher, Inc. and Fisher advised Mark X. DiSanto on several occasions that LPC was impecunious and unable to pay for services that they had rendered. LPC terminated the services of Fisher, Inc. and Fisher and sought to engage another firm to provide professional services. Fisher, Inc. and Fisher interfered by refusing to permit the 10 116012.00601/21175061x1 proposed successor, Michael J. Brill & Associates ("Brill"), to use the existing plans or any data from them and threatening to sue Brill if Brill attempted to submit any revised plans based on the plans or data of Fisher, Inc. and Fisher because they owned them and had not been paid for them. In seeking to replace Fisher, Inc. and Fisher, LPC requested Mark X. DiSanto to prove that it owned plans or data that Fisher, Inc. and Fisher claimed it owned when it threatened to sue; however, DiSanto failed and refused to give support for their ownership of the plans or data on which Fisher, Inc. and Fisher threatened to sue Brill and delayed providing such information in order to preclude LPC from engaging a successor engineer on a timely basis. LPC also sought to hire another firm, Gannett Flemming, but again was prevented from doing so. On or about June 7, 2001, the Silver Spring Township Planning Commission met and - given the changes that Fisher, Inc. and Fisher had made to the plans at the direction of Mark X. DiSanto, John M. DiSanto and the Trustees and given their failure to adhere to the 1994 Settlement Agreement -recommended that preliminary subdivision of The Golden Triangle Project be denied because it was inconsistent with the 1994 Settlement Agreement. As a direct and proximate result of defendants' conduct described above, LPC has suffered substantial economic harm, has had its contract and business relationships interfered with and has been prevented from acquiring and developing the unique real property located in The Golden Triangle Project. As a result of the conduct of Fisher, Inc. and Fisher, LPC sought to resolve any outstanding issues between them. Unknown to LPC, and while it was negotiating in good faith, and after the Trustees, Mark X. DiSanto and John M. DiSanto had acknowledged their delays by agreeing to extend the Outside Closing Date until July, 2002, and while LPC was waiting for the release of the plans by Fisher, Inc. and Fisher, on or about September 20, 2001, Fisher, Inc. and Fisher filed this lawsuit. Fisher, Inc. and Fisher concealed this lawsuit from LPC 11 116012.00601 /21175061 v 1 during negotiations, and eventually served it at Locke's home address on Saturday, January 19, 2002. Plaintiff s complaint alleges breach of Contract against LPC. LPC alleges counterclaims for: (1) Fraud; (2) Negligent Misrepresentation; (3) malpractice; (4) Breach of Covenant of Good Faith and Fair Dealings; (5) Tortious interference with Contract; (6) Breach of Contract; (7) Defamation; (8) Declaratory Judgment. 2. STATEMENT OF FACTS AS TO DAMAGES Plaintiff alleges in its Complaint that LPC owes $20,688.86 as of June 1, 2001 and requests interest at the rate of 1 %x% per month. LPC alleges in its counterclaims that it has been damaged as a result of Plaintiff's conduct in an amount exceeding $150,000.00 to be determined at trial. Damages include: (1) civil engineering fees --$70,000.00; (2) deposit on land -- $60,000.00; (3) legal fees --$30,000.00; (4) traffic report--$10,000.00; (5) LPC personnel wages- -$30,000.00. 3. LPC denies ever entering into a written contract with Plaintiff, and asserts that it made a counteroffer to Plaintiff, which was never accepted. Moreover, LPC asserts that Plaintiff fraudulently induced LPC into entering into the oral contract for professional services, and that contract should be void. LPC also asserts that as a result of Plaintiff's wrongful conduct, LPC has been damaged in that the plan to develop the golden triangle project has never been approved and as a result Plaintiff has lost a great deal of money. 4. SUMMARY OF LEGAL ISSUES There are none at this time. Defendant reserves the right to supplement. 12 116012.00601/21175061 vt 5. IDENTITY OF WITNESSES A. William Locke B. Robert 7. Fisher C. Alex A. DiSanto, Jr. D. Julia Szabo E. Mark DiSanto F. Mark X. DiSanto G. John M. DiSanto H. Dona L, DiSanto I. Representative of the Township of Silver Spring J. Representative of Leon Wintermeyer, Inc. K. Representative of R.S. Mowery & Sons, Inc. L. Representative of Connewago Contractors, Inc. M. Jack F. Hurley, Esquire N. Representative of Michael J. Brill Associates O. All witnesses on Plaintiff's list. P. Defendant reserves the right to supplement. 6. LIST OF EXHIBITS WITH BRIEF IDENTIFICATION OF EACH 1. May 1, 20001etter with attached purported contract from Robert J. Fisher to William E. Locke for professional design services for the golden triangle project. 2. Agreement of Purchase and Sale dated July 10, 2000 between John DiSanto, Alex A. DiSanto, Jr.,-Julia Szabo and Mark DiSanto and Locke Property Company for the sale of the golden triangle property. 13 116012.00601/21175061v1 3. Agreement by and between Alex A. DiSanto and Donna L. DiSanto and Triple Crown Corporation and the township of Silver Spring dated June 8, 1994. 4. November 2, 20001etter from Mark X. DiSanto of Triple Crown Corporation to William Locke regarding additional costs. 5. January 17, 2001 fax with amendment from Mark X. DiSanto to William Locke. 6. January 22, 2001 fax memo from William Locke to Mark DiSanto regarding first amendment to agreement of purchase and sale. 7. August 30, 2001 fax from William Locke to Mark DiSanto regarding first amendment to agreement of purchase and sale. 8. January 18, 20021etter from William Locke to John DiSanto, Alex A. DiSanto, Jr., Julia Szabo, Mark DiSanto, John DiSanto notifying sellers that buyers not in default. 9. March 14, 2001 fax from William Locke to Robert Fisher regarding cancellation of meeting. 10. June 5, 2001 fax from William Locke to Robert Fisher regarding invoices, refusal to sign contract. 11. June 8, 2001 letter from William Locke to Robert Fisher detailing history of problems and obstacles. 12. June 8, 2001 letter from William S. Cook of Silver Spring Township to Triple Crown Corporation recapping meeting in which Silver Spring Township Planning Commission recommended that the development plan be denied. 13. June 22, 2001 letter from F. R. Martsolf to Jack F. Hurley, Jr. regarding Silver Spring Township recommendation and denial of approval for land development plan. 14 116012.00601/21175061v1 14. 2002 submission to the Silver Spring Township by Robert Fisher and Mark DiSanto along with related correspondence requesting the review and approval of previously rejected changes. 15. All documents on Plaintiff s list. 16. Defendant reserves the right to supplement. 7. STATUS OF SETTLEMENT NEGOTIATIONS No settlement discussions have taken place. Plaintiff made a demand of $10,000.00, which was rejected by LPC. Dated: July 25, 2003 Respectfully submitted, Alexander D. Bono (Pa. Id. 25845) Frank A. Dante (Pa. Id. 87888) BLANK ROME LLP One Logan Square Philadelphia, PA 19103 215-569-5500 215-569-5555 (fax) Attorneys for Defendant, Locke Property Company, Inc. 15 116012.00601/21175061v1 CERTIFICATE OF SERVICE It is certified that on July 25, 2003 a copy of Locke Property Company, Inc.'s Pretrial Memorandum was served by facsimile and first class mail upon: Craig A. Diehl, Esquire Law Offices of Craig A. Diehl 3464 Trindle Road Camp Hill, PA 17011-4436 FRANK A. DANTE 16 116012.00601/21175061v1 dlr.. 2 8 2003 BLANK ROME LLP By: Alexander D. Bono, Esquire Frank A. Dante, Esquire Identification Nos. 25845/87888 One Logan Square Philadelphia, PA 19103 215-569-5500 Attorneys for Defendant Locke Property Company, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RJ. FISHER & ASSOCIATES, INC., NO. 01-5477 Plaintiff, CIVIL ACTION -LAW v. LOCKE PROPERTY COMPANY, INC., Defendant. DEFENDANT LOCKE PROPERTY COMPANY, INC.'S PRETRIAL MEMORANDUM Defendant Locke Property Company, Inc. ("LPC"), submits this Pretrial Memorandum pursuant to Local Rule of Civil Procedure 212-4. 1. STATEMENT OF FACTS AS TO LIABILITY LPC is a real estate developer. At all material times, LPC had contract rights to and was ready, willing and able to proceed in the process of acquiring and developing an approximately 48.5 acre parcel of unimproved real estate property called "The Golden Triangle" located in Silver Spring Township, Cumberland County, Pennsylvania ("The Golden Triangle Project"). The Golden Triangle Property was owned by Alex A. DiSanto, Jr., Julia Szabo, and Mark DiSanto (the "Trustees") who obtained the property by the 1993 Irrevocable Trust left by their ll 6012.00601/21175061v1 parents, Alex and Dora DiSanto, and by Mark X. DiSanto, John M. DiSanto, and John DiSanto, who obtained their ownership from their parents, Alex and Dora DiSanto. Fisher, Inc. held itself out as having professional engineering and planning expertise, particularly in land planning, site design, construction and landscape architecture, and with particular familiarity with Silver Spring Township, Cumberland County, Pennsylvania and The Golden Triangle Project. Robert J. Fisher, PLS., PE ("Fisher') held himself out as a licensed engineer with professional engineering and planning expertise, particularly in the areas of land planning, site design, construction, landscape architecture, and with particular familiarity with Silver Spring Township, Cumberland County, Pennsylvania and The Golden Triangle Project. On or about July 10, 2000, LPC made a written Agreement of Purchase and Sale with the Trustees and Mark X. DiSanto and John M. DiSanto ("P&S Agreement"). By the P&S Agreement (§§1 and 2), the Trustees, Mark X. DiSanto and John M. DiSanto agreed to sell The Golden Triangle Project to LPC for $1.5 million. By letter dated November 2, 2000, the parties agreed to reduce the purchase price of the property by up to $250,000.00 because the site costs were higher than originally estimated. By the P&S Agreement (§3(a)), LPC made a $60,000 cash escrow deposit for The Golden Triangle Project ("Deposit"). By the P&S Agreement (§C(6)and (32) and §3(b)), the Trustees, Mark X. DiSanto and John M. DiSanta agreed with LPC that the balance of the purchase price would be paid on or before the "Closing Date", which was agreed to be thirty (30) days after the "Permit Date", which was agreed to be the date on which LPC received all final, permits, licenses and approvals to develop, build, use and operate The Golden Triangle Project, including approvals by the Township of Silver Spring and other governmental authorities having jurisdiction over the Land Development Plan, Preliminary Subdivision Plan and Final Subdivision Plan, and revisions to 116012.00601/21175061x1 the flood plain by the Federal Emergency Management Agency ("FEMA"); but in no event more than eighteen months after the P&S Agreement's date. In August, 2001, in recognition of the delays caused by the defendants that are described below, the parties agreed to extend the "Outside Date" until July 10, 2002. By the P&S Agreement (§12(b)(vii) and (xii)), the Trustees, Mark X. DiSanto and John M. DiSanto represented that assignment of all development plans, land development plans, preliminary subdivision plans, final subdivision plans, structural reviews, architectural drawings and engineering, soil, seismic, geologic, environmental and architectural reports, studies and certificates and other documents concerning The Golden Triangle Project ("Plans") to LPC did not require the consent of third parties, and that they had good and marketable title to such Plans, which were fully paid for and free and clear of any claims, disputes, liens or encumbrances. By the P&S Agreement (§12(d)(i) and (ii)), the Trustees and Mark X. DiSanto and John M. DiSanto represented that: (i) they would use due diligence and best efforts to keep in full force and effect the terms of a Settlement Agreement made June 8, 1994 by and between Alex A. DiSanto and Dona L. DiSanto, TCC, and the Township of Silver Spring ("1994 Settlement Agreement"), comply with governmental regulations and keep LPC advised concerning developments about the 1994 Settlement Agreement; (ii) they would not change the terms of the 1994 Settlement Agreement or enter into any contracts, restrictions or obligations affecting The Golden Triangle Project without LPC's prior written consent; (iii) they would not file any development plans, subdivision plans or other plans with any governmental authorities concerning The Golden Triangle Project, without LPC's prior written consent; and (iv) they would not seek zoning approvals or change in variances regarding The Golden Triangle Project, without LPC's prior written consent. 116012.00601/21175061v1 By the P&S Agreement (§12(d)(iii)), the Trustees, Mark X. DiSanto and John M. DiSatrto represented that they: (i) would fully cooperate regarding LPC's plans for The Golden Triangle Project and would not hinder, delay or impair LPC from filing or obtaining any and all project approvals regarding plans for The Golden Triangle Project; (ii) would take no action to adversely affect or delay or increase LPC's cost of The Golden Triangle Project; and (iii) would not modify the Development Plan, the Preliminary Subdivision Plan, or the Final Subdivision Plan or any uses planned for related property so as to adversely affect or delay or increase LPC's costs regazding The Golden Triangle Project. By the P&S Agreement (§24), defendants Trustees, Mark X. DiSanto and John M. DiSanto agreed that they would: (i) not modify the Land Development Plan, the Preliminary Subdivision Plan, the Final Subdivision Plan or the 1994 Settlement Agreement without LPC's prior written consent; (ii) fully support and join in any modification to those plans and any related project approvals required by LPC in connection with LPC's plans for the project; (iii) execute and deliver any amendments to pending plans relating to the filing and approval that LPC may seek to develop, build or operate the project; and (iv) fully support LPC in seeking project approvals. LPC was introduced to Fisher, Inc, and Fisher by Mark X. DiSanto as exceedingly competent, professional and expert in providing land planning, design, construction, landscape architecture, engineering and planning services, and as having direct experience in the design and planning of The Golden Triangle Project that previously had been submitted to Silver Spring Township by TCC, by or on behalf of the DiSanto Pazents as the prior owners of The Golden Triangle Project (the "Prior Plans"), and had been rejected by Silver Spring Township. In or 4 716012.OD601/2tt750b1 v1 about August 2000, LPC's President, William E. Locke, Jr. ("Locke"), met with Fisher, Inc. and Fisher. Fisher, on behalf of himself and Fisher, Inc., promoted the professional expertise of himself and of Fisher, Inc. concerning engineering and planning, particularly land planning, architecture and engineering services generally, and professional services that had previously been provided to TCC and the DiSanto Parents in the Prior Plans concerning The Golden Triangle Project and that could be provided to LPC concerning The Golden Triangle Project. Fisher, Inc. and Fisher represented that they had already prepared the Prior Plans for TCC and the DiSanto Parents regarding subdivision and land development of The Golden Triangle Project, and that these Prior Plans could be "updated" for LPC's use in acost-effective, efficient manner by Fisher, Ilic. and Fisher, and that such "updating" could result in substantial savings for the cost of professional services that are normally provided in such development projects. Fisher, Inc. and Fisher represented that, as part of their scope of work, their professional services would adhere to the terms of the 1994 Settlement Agreement, in which the Township of Silver Spring agreed to the land development and subdivision of The Golden Triangle property on specified terms; and that they would incorporate those terms and comments from the Township into the "updating" of the Prior Plans. Based on the representations of Fisher, Inc. and Fisher, in or about August 2000, LPC was induced to hire Fisher, Inc. and Fisher to perform professional land planning, architecture and engineering services concerning The Golden Triangle Project, and Fisher, Inc. and Fisher orally agreed to provide those services to LPC ("Oral Professional Services AgreemenP'). In this Oral Professional Services Agreement, it was expressly agreed that Fisher, Inc. and Fisher would efficiently and economically provide professional services by, among other 1160t2.00601/2t175061v1 ~~ things, "updating" the existing Prior Plans concerning subdivision and development of The Golden Triangle Project that Fisher, Inc. and Fisher had prepared, by incorporating changes that adhered to the 1994 Settlement Agreement and the Township of Silver Spring's comments. In or around January, 2000, LPC's Locke advised Fisher and Fisher, Ina that LPC's financing of The Golden Triangle Project by investors, such as Prudential Real Estate Investors, Inc. and others, would be conditioned on, among other things, the engagement of a professional service provider for architectural, planning and engineering services pursuant to a contract with terms in a standard AIA, ASCE or EJCDC format, and proof of appropriate professional liability errors and omissions insurance coverage. Fisher, on behalf of himself and Fisher, Inc., represented that Fisher, Inc. would provide both the contract in the appropriate standard term format, and proof of adequate professional liability insurance coverage. Fisher, Inc. and Fisher agreed, in or around January 2001, to engage in the conduct described below regarding the redesign of the Prior Plans to incorporate changes that would harm LPC and accrue to the benefit of TCC, Mark X. DiSanto, John M. DiSanto and the Trustees, and the submission of plans to the Township of Silver Spring, without LPC's approval or consent. Fisher, Inc. and Fisher knowingly and intentionally concealed from LPC their plan and agreement to engage in the conduct described below, and the details of their plan and agreement are particularly within their own knowledge. Based on the Oral Professional Services Agreement, and even though Fisher, Inc. and Fisher had not prepared a written contract with terms in the standard term AIA, ASCE or EJCDC format, in or about February 2001, Fisher, Inc. and Fisher began performing professional 176012.00601/21175061v1 services for LPC concerning The Golden Triangle property. Even though Fisher, Inc, and Fisher knew that LPC needed a contract with terms in the standard teen AIA, ASCE or EJCDC format in order to satisfy lending and investment requirements, and even though Fisher, Inc. and Fisher had represented that they would prepare a contract with such terms, Fisher, Inc. and Fisher instead sent LPC a "proposal" for "professional engineering and planning services relative to The Golden Triangle project in Silver Spring Township, Cumberland County, Pennsylvania", which was dated May 1, 2000 ("Proposal"). The Proposal expressly reiterated the oral representation that the professional services would involve "updating the land development and subdivision plan fora 400,000 sq. $. warehouse as required in the June 8th 1994 Settlement Agreement, coordination and assistance to HRG regarding the FEMA flood plain boundary, consultations and coordination regarding the Jimmy George tract for utility connections and preparation of an overall subdivision plan to subdivide the warehouse tract from other lands of Triple Crown Corporation and provide for public access roads and utilities to the tract " (emphasis added) On March 23, 2001, LPC signed the Proposal on the express counter-offer condition that the Proposal had "to be replaced [byJ standard form ASCE/contract documents.", as agreed in the prior Oral Professional Services Agreement. LPC, through its president, Locke, repeatedly advised Fisher, Inc. and Fisher of the need for them to satisfy the condition of providing a written contract with terms in the standard AIA, ASCE or EJCDC format. In Apri12001, LPC again notified Fisher, Inc. and Fisher of the requirement of such a contract in order to satisfy Prudential's lending requirements. Given the failure of Fisher, Inc. and Fisher to prepare and provide a written contract with terms in the standard AIA, ASCE or EJCDC format, LPC prepared a contract according to the appropriate 116012.00601~1175061v1 standard needed to satisfy its lender and investors, and sent it to Fisher, Inc. and Fisher on May 9, 2001. Despite LPC's repeated requests concerning the written contract it sent to Fisher, Inc. and Fisher on May 9, 2001, Fisher, Inc. and Fisher ignored requests for a response, and they failed and refused to make the contract in the standard term format as orally agreed, which Fisher, Inc. and Fisher knew was needed by LPC in order to satisfy the lending terms of Pmdential to finance the project. Fisher, Inc. and Fisher provided professional services to LPC under the Oral Professional Services Agreement described above; however, Fisher and Fisher, Inc. were negligent in performing those duties and failed to satisfy the standard of care for professionals providing professional engineering, architecture and planning services. Among the failures of Fisher, Inc. and Fisher were: Failure to send to contractors, on a timely basis, copies of plans needed to be used for pricing purposes, and failure to send complete plans to those contractors (Leon Wintermeyer, Inc., R.S. Mowery & Sons, Inc. and Connewago Contractors, Inc. [the "Contractors"]); Failure to prepare a complete and accurate schedule and, after being advised of numerous errors and omissions in a proposed schedule, failing to update or revise the schedule as requested; Failure to incorporate into the plans the Township of Silver Spring's changes outlined in the 1994 Settlement Agreement; Without notice to or discussion with LPC, making material changes to the plans that were outside the scope of the Settlement Agreement, including the location of an entrance driveway and size of the detention basin, and adding a new detention basin on the South side of the building -all of which increased costs and harm to LPC but benefited the Trustees, Mark X. 116012.00601/21175061v1 DiSanto and John M. DiSanto, who had agreed to sell The Golden Triangle Project to LPC, owned adjacent land, and had an existing relationship with Fisher, Inc. and Fisher through TCC and the DiSanto Parents; Advising LPC that unauthorized work would not be removed from the plans without the approval of Mark X. DiSanto; Failure to prepare a complete, organized and professional report outlining compliance with and the status of twenty-two comments made by the Township of Silver Spring; Failure to incorporate into plans comments from LPC, made by Locke and its counsel, Jack F. Hurley, Jr., Esquire; Failure to outline any and all changes made to the plans beyond those required by the 1994 Settlement Agreement notwithstanding the knowledge that such changes jeopardized the Township's approval of The Golden Triangle Project due to deviations from the 1994 Settlement Agreement, and failure to explain the basis for making such changes, despite repeated requests; Failure to meet important project deadlines, including failure to incorporate the Township of Silver Spring's comments and resubmit a complete set of land development and subdivision plans by April 12, 2001; Failure to keep LPC apprised of progress on The Golden Triangle Project on a timely basis; Revision and submissions of plans to the Township of Silver Spring without notice of the revisions to LPC and without authorization from LPC, including refusal to supply to LPC copies of the plans for which the Township required resubmission; 116012.00601/21175061v1 Failure to secure a quote for errors and omissions insurance coverage despite notice from LPC that this was a requirement from Prudential; and Failure to prepare and provide and enter into a written contract with terms in the standard AIA, ASCE or EJCDC format. In addition to the failures described above, Fisher, Inc. and Fisher made defamatory remarks that were designed to impune the character, business integrity, business acumen and financial ability of LPC. These included: In January 2001, Fisher, Inc. and Fisher advised Mark X. DiSanto that The Golden Triangle Project was being held up because LPC had not authorized Fisher to begin work, in order to create the false impression that LPC was unnecessarily delaying the project; In or about March 2001, Fisher, Inc. and Fisher sought to create the false impression with Mark X. DiSanto that LPC was unnecessarily delaying the engagement of Herbert Rowland Grubic, Ina ("HRG") as a FEMA consultant, even thought they knew that HRG was still negotiating a contract, that HRG's proposal was based on the development of two buildings and a plan completely inconsistent with The Golden Triangle Project plans, and there were efforts to review work done eight years ago regarding the same project by HRG; Fisher, Inc. and Fisher informed Mark X. DiSanto that Gannett Fleming was delaying the project when, in fact, they knew that Gannett had been released, had requested information from FEMA, and was waiting for a response; Fisher, Inc. and Fisher advised Mark X. DiSanto on several occasions that LPC was impecunious and unable to pay for servicesthat they had rendered. LPC terminated the services of Fisher, Inc. and Fisher and sought to engage another firm to provide professional services. Fisher, Inc. and Fisher interfered by refusing to permit the 10 116012.0060121175061v1 proposed successor, Michael J. Brill & Associates ("BrilP'), to use the existing plans or any data from them and threatening to sue Brill if Brill attempted to submit any revised plans based on the plans or data of Fisher, Inc. and Fisher because they owned them and had not been paid for them. In seeking to replace Fisher, Inc. and Fisher, LPC requested Mark X. DiSanto to prove that it owned plans or data that Fisher, Inc. and Fisher claimed it owned when it threatened to sue; however, DiSanto failed and refused to give support for their ownership of the plans or data on which Fisher, lnc. and Fisher threatened to sue Brill and delayed providing such information in order to preclude I,PC from engaging a successor engineer on a timely basis. LPC also sought to hire another firm, Gannett Flemming, but again was prevented from doing so. On or about June 7, 2001, the Silver Spring Township Planning Commission met and - given the changes that Fisher, Inc. and Fisher had made to the plans at the direction of Mark X. DiSanto, John M. DiSanto and the Trustees and given their failure to adhere to the 1994 Settlement Agreement -recommended that preliminary subdivision of The Golden Triangle Project be denied because it was inconsistent with the 1994 Settlement Agreement. As a direct and proximate result of defendants' conduct described above, LPC has suffered substantial economic harm, has had its contract and business relationships interfered with and has been prevented from acquiring and developing the unique real property located in The Golden Triangle Project. As a result of the conduct of Fisher, Inc. and Fisher, LPC sought to resolve any outstanding issues between them. Unknown to LPC, and while it was negotiating in good faith, and after the Trustees, Mark X. DiSanto and John M. DiSanto had acknowledged their delays by agreeing to extend the Outside Closing Date until July, 2002, and while LPC was waiting for the release of the plans by Fisher, Inc. and Fisher, on or about September 20, 2001, Fisher, Inc. and Fisher filed this lawsuit. Fisher, Inc. and Fisher concealed this lawsuit from LPC i i 6oiz.oowrni nsos~~i 11 during negotiations, and eventually served it at Locke's home address on Saturday, January 19, 2002. Plaintiff's complaint alleges breach of Contract against LPC. LPC alleges counterclaims for: (1) Fraud; (2) Negligent Misrepresentation; (3) malpractice; (4) Breach of Covenant of Good Faith and Fair Dealings; (5) Tortious interference with Contract; (6) Breach of Contract; (7) Defamation; (8) Declaratory Judgment. 2. STATEMENT OF FACTS AS TO DAMAGES Plaintiff alleges in its Complaint that LPC owes $20,688.86 as of June 1, 2001 and requests interest at the rate of 1 '/z% per month. LPC alleges in its counterclaims that it has been damaged as a result of Plaintiff's conduct in an amount exceeding $150,000.00 to be determined at trial. Damages include: (1) civil engineering fees --$70,000.00; (2) deposit on land -- $60,000.00; (3) legal fees --$30,000.00; (4) traffic report--$10,000.00; (5) LPC personnel wages- -$30,000.00. 3. STATEMENT AS TO THE PRINCIPAL ISSUES OF LIABILITY AND DAMAGES LPC denies ever entering into a written contract with Plaintiff, and asserts that it made a counteroffer to Plaintiff, which was never accepted. Moreover, LPC asserts that Plaintiff fraudulently induced LPC into entering into the oral contract for professional services, and that contract should be void. LPC also asserts that as a result of Plaintiff's wrongful conduct, LPC has been damaged in that the plan to develop the golden triangle project has never been approved and as a result Plaintiff has lost a great deal of money. 4. SUMMARY OF LEGAL ISSUES There are none. at this time. Defendant reserves the right to supplement. 12 116012.00601/21175061v1 _ ~ ~_. 5. IDENTITY OF WITNESSES A. William Locke B. Robert J. Fisher C. Alex A. DiSanto, Jr. D. Julia Szabo E. Mark DiSanto F. Mark X. DiSanto G. John M. DiSanto H. Dona L. DiSanto I. Representative of the Township of Silver Spring J. Representative of Leon Wintenneyer, Inc. K. Representative of R.S. Mowery & Sons, Inc. L. Representative of Connewago Contractors, Inc. TVl. Jack F. Hurley, Esquire N. Representative of Michael J. Brill Associates O. All witnesses on Plaintiff's list. P. Defendant reserves the right to supplement. 6. LIST OF EXHIBITS WITH BRIEF IDENTIFICATION OF EACH 1. May 1, 20001etter with attached purported contract from Robert J. Fisher to William E. Locke for professional design services for the golden triangle project. 2. Agreement of Purchase and Sale dated July 10, 2000 between John DiSanto, Alex A. DiSanto, Jr., Julia Szabo and Mark DiSanto and Locke Property Company for the sale of the golden triangle property. 13 116012.00601/21175061v1 3. Agreement by and between Alex A. DiSanto and Donna L. DiSanto and Triple Crown Corporation and the township of Silver Spring dated June 8, 1994. 4. November 2, 20001etter from Mazk X. DiSanto of Triple Crown Corporation to William Locke regarding additional costs. 5. January 17, 2001 fax with amendment from Mark X. DiSanto to William Locke. 6. January 22, 2001 fax memo from William Locke to Mazk DiSanto regarding first amendment to agreement of purchase and sale. 7. August 30, 2001 fax from William Locke to Mark DiSanto regarding first amendment to agreement of purchase and sale. 8. January 18, 20021etter from William Locke to John DiSanto, Alex A. DiSanto, Jr., Julia Szabo, Mark DiSanto, John DiSanto notifying sellers that buyers not in default. 9. March 14, 2001 fax from William Locke to Robert Fisher regarding cancellation of meeting. 10. June 5, 2001 fax from William Locke to Robert Fisher regarding invoices, refusal to sign contract. 11. June 8, 2001 letter from William Locke to Robert Fisher detailing history of problems and obstacles. 12. June 8, 2001 letter from William S. Cook of Silver Spring Township to Triple Crown Corporation recapping meeting in which Silver Spring Township Planning Commission recommended that the development plan be denied. 13. June 22, 2001 letter from F. R. Maztsolf to Jack F. Hurley, Jr. regarding Silver Spring Township recommendation and denial of approval for land development plan. 14 116012.00601l2I1750bivl 14. 2002 submission to the Silver Spring Township by Robert Fisher and Mark DiSanto along with related correspondence requesting the review and approval of previously rejected changes. 15. All documents on Plaintiff's list. 16. Defendant reserves the right to supplement. 7. STATUS OF SETTLEMENT NEGOTIATIONS No settlement discussions have taken place. Plaintiff made a demand of $10,000.00, which was rejected by LPG. Respectfully submitted, Dated: July 25, 2003 Alexander D. Bono (Pa. Id. 25845) Frank A. Dante (Pa. Id. 87888) BLANK ROME LLP One Logan Square Philadelphia, PA 19103 215-569-5500 215-569-5555 (fax) Attorneys for Defendant, Locke Property Company, Inc. 15 116012.0060]/21175061x1 _ ~:,~t, CERTIFICATE OF SERVICE It is certified that on July 25, 2003 a copy of Locke Property Company, Inc.'s Pretrial Memorandum was served by facsimile and first class mail upon: Craig A. Diehl, Esquire Law Offices of Craig A. Diehl 3464 Trindle Road Camp Hill, PA 17011-4436 ~,~~~ FRANK A. DANTE 16 116012.0060]/21175061x1 R.J. FISHER & ASSOCIATES, INC. V. LOCKE PROPERTY COMPANY, INC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-5477 CIVIL CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 10TH day of JULY, 2003, a pretrial conference in the above-captioned matter scheduled for FRIDAY, JULY 18, 2003, at 11:00 a.m. in Chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. TRIAL in the matter will be scheduled at the pretrial conference. Counsel are directed to have their calendars available. By t Court, Edward E. Guido, J. Craig A. Diehl, Esquire Frank A. Dante, Esquire Court Administrator ~,~o ~ ~ /x_03 A sld ~~ ~~ n~; a`.~ 07/25/2003 14:32 FA% 1 BI.ANR Ro%E JUL 2 5 BLANK ROME LLP By: Alexander D. Bono, Esquire Frank A. Dante, Esquire Identification Nos. 25845/87888 One Logan Square Philadelphia, PA 19103 215-569-5500 Attorneys far Defendant Locke Property Company, Inc, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RJ. FISHER & ASSOCIATES, INC., NO.Ol-5477 Plaintiff; CIVIL ACTION -LAW v. LOCKS PROPERTY COMPANY, INC., Defendant. DEFENDANT LOCKS PROPERTY COMPANY, INC.'S PRETRIAL MEMORANDUM Defendant Locke Pmpery Company, Inc. ("LPC'), submits this Pretrial Memorandum pursuant to Local Rule of Civil Procedure 212-4. 1. STATEMENT OF FACTS AS TO LIABILITY LPC is a real estate developer. At all material times, LPC had contract rights to and was ready, willing and able to proceed in the process of acquiring and developing an approximately 48.5 acre parcel of uaimpmved real estate property called "The C,olden Triangle" located in Silver Spring Township, Cumberland County, Pennsylvania ("The Golden Triangle Praject'7. The Golden Triangle Property was owned by Alex A. DiSanto, Jr., Julia Szabo, and Mark DiSanto (the "Trustees' who obtained the property by the 1993 hrevocablc Trust left by their ttcotz.oocotnt t~soet~t 07/25/2003 14:32 FA% BLANR RO%E i~J004 parents, Alex and Dora DiSanto, and by Mazk X. DiSanto, John M. DiSanto, and John DiSanto, who obtained their ownership from their parents, Alex and Dora D1Santo. Fisher, Inc. held itself out as having professional engineering and planning expertise, particularly inland planning, site design, construction and landscape architecture, and. with particular familiarity with Silver Spring Township, Cumberland County, Pennsylvania and The Golden Triangle Project. Robert J. Fisher, PLS., PF ("FY.sker') held himself out as a licensed engineer with professional engineering and planning expertise, particularly in the areas of land planning, site design, construction, landscape architecture, and with particular familiarity with Silver Spring Township, Cumberland County, Pennsylvania and The Golden Triangle Pmject. On or about July 10, 2000, LPC made awrittenAgreement of Purchase and Sale with the Trustees and Mark X. DiSanto and John M. DiSanto ("P&S Agreement'. By the P&S Agreement (§ § 1 and 2), the Trustees, Mark X. DiSanto and John M. DiSanto agreed to sell The Golden Triangle Project to LPC for $1.5 million. By letter dated November 2, 2000, the parties agreed to reduce the purchase price of the property by up to $250,000.00 because the site costs were higher than originally estimated. By the P&S Agreement {§3(a)), LPC made a $60,000 cash escrow deposit for The Golden Triangle Project ("DeposiP~. By the P&S Agreement (§C(6)and (32) and §3(b)), the Trustees, Mark X. DiSanto and John M. DiSanto agreed with LPC that the balance of the gurchase price would be paid on or before the "Closing Date", which was agreed to be thirty (30) days after the "Permit Date", which was agreed to be the date on which LPC received all final, permits, licenses and approvals to develop, build, use and operate The Golden Triangle Project, including approvals by the Township of Silver Spring and other governmental authorities having jurisdiction over the L and Development Plan, Preliminary Subdivision Plan and F5rla1 Subdivision Plan, and revisions to 116012.OOfi0121175061v1 07/25/2003 14:33 FAX BLANR ROME f~J005 t the flood plain by the Federal Emergency Management Agency ("FEMA'~; but in no event more than eighteen months after the P&S Agreement's date. In August, 2001, in recognition of the delays caused by the defendants that are described below, the parties agreed to extend the "Outside Date" until July I0, 2002. By the P&5 Agreement (§ 12(b)(vii) and (xii)), the Trustees, Mark X. DiSanto and John M. DiSanto represented that assignment of all development plans, land development plans, preliminary subdivision plans, final subdivision plans, structural reviews, architectural drawings and engineering, soil, seismic, geologic, environmental and architectural reports, studies and certificates and other documents conceming The Golden Triangle Project ("Plass'~ to I,PC did not require the consent of third parties, and that they had good and marketable tithe to such Plans, which wcre fully paid for and free and clear of any claims, disputes, liens or encumbrances. By the P&S Agreement (§ 12(d}(i) and (ii)), the Trustees and Mark X. DiSanto and John M. DiSanto represented that: (i) they would use due diligence and best efforts to keep In full force and effect the terms of a Settlement Ageement made June 8, 1944 by and between Alex A. DiSanto and Dona L. DiSanto, TCC, and the Township of Silver Spring ("J994 Settlement Agreement"), comply with governmental regulations and keep LPC advised concerning developments about the 1494 Settlement Agreement; (ii) they would not change the terms of the i 994 Settlement Agreement or enter into any contracts, restrictions or obligations affecting The Golden Triangle Project without LPC's prior written consent; (iii) they would not file any development plans, subdivision plans or other plans with any governmental authorities conceming The Golden Triangle Project, without LPC's prior written consent; and (iv) they would not seek zoning approvals or change in variances regarding The Golden Triangle Project, without LPC's prior written consent. 1I6012.00601J21175061vi 07/25/2003 14:33 FA% BI.ANR RO%E f~j006 T t By the P&S Agreement (§12(d)(iii)), the Trustees, Mazk X. DiSanto and John M. DiSanto represented that they: (i) would fully cooperate regarding LPC's plans for The Golden Triangle Project and would not binder, delay or impair LPC from filing or obtaining any and all project approvals regarding plans for The Golden Triangle Project; (ii) would take no action to adversely affect or delay or increasc LPC's cast of The Golden Triangle Project; and (iii) would not modify the Development Plan, the Preliminary Subdivision Plan, or the Final Subdivision Plan or any uses planned for related property so as to adversely affect or delay or increase LPC's costs regarding The Golden Triangle Project. By the P&S Agreement (§24), defendants Trustees, Mark X. DiSanto and John M. DiSanto agreed that they would: (i) not modify the Land Development Plan, the Preliminary Subdivision Plan, the Final Subdivision Plan or the 1994 Settlement Agreement without LPC's prior written consent; (ii) fully support and join in any modification to those plans and any related project approvals required by LPC in connection with LPC's plans for the project; (iii) execute and deliver any amendments to pending plans relating to the filing and approval that LPC may seek to develop, build or operatc the project; and (iv) fully support LPC in seeking project approvals. LPC was introduced to Fisher, Inc. and Fisher by Mark X. DiSanto as exceedingly compctcnt, professional and expert in providing Land planning, design, construction, landscape azchitecture, engineering and planning services, and as having direct experience in the design and planning of The Golden Triangle Project that previously had been submitted to Silver Spring Township by TCC, by or on behalf of the DiSanto Parents as the prior owners of The Golden Triangle Project (the "PriorPla~ns'~, and had been rejected by Silver Spring Township. In or 4 t iwu.oo6oin~ i ~sodtY3 tl7/25/2003 14:34 FA% BI.ANR RO1HE I~j007 i about August 2000, LPC's President, William E. Locke, Jr. ("Locke"), met with Fisher, Inc. and Fisher. Fisher, on behalf of himself and Fisher, Inc., promoted the professional expertise of hitnself and of Fisher, Inc. concerning engineering and planning, particularly land planning, architecture and engineering services generally, and professional services that had previously been provided to TCC and the DiSanto Parents in the Prior Plans concerning The Golden Triangle Project and that could be provided to LPC concerning The Golden Triangle Project. Fisher, Inc. and Fisher represented that they had already grepared the Prior Plans for TCC and the DiSanto Pazents regarding subdivision and Iand development of The Golden Triangle Project, and that these Prior Plans could be "updated" for LPC's use in acost-effective, efficient manner by Fisher, Inc. and Fisher, and that such "updating" could result insubstantial savings for the cast of professional services that are normally provided in such development projects. Fisher, Inc. and Fisher represented that, as part of their scope of work, their professional services would adhere to the terms of the 1994 Settlement Agreement, in which the Township of Silver Spring agreed to the land developmen and subdivision of The Golden Triangle property on specified terms; and that they would incorporate those terms and comments from the Township into the "updating" of the Prior Plans. Based on the representations of Fisher, Inc. and Fisher, in or about August 2000, LPC was induced to hire Fisher, lnc, and Fisher to perform professional land planning, architecture and engineering services concerning The Golden Triangle Project, and Fisher, Inc. and Fisher orally agreed to provide those services to LPC ("Ora! Professional Services Agreement"}. In this Oral Professional Services Agreement, it was expressly agreed that Fish, Inc. and Fisher would efficiently and economically provide professional services by, among other 5 t t eotz.ooso to t t 7so6t~t 07/25/2003 14:34 FA% BLANR ROffiE Idj008 things, "updating" the existing Prior Plans concerning suhdivision and development of The Golden Triangle Project that Fisher, Inc. and Fisher had prepared, by incorporating changes that adhered to the 1994 Settlement Agreement and the Township of Silver Spring's comments. In or around January, 2000, LPC's Locke advised Fisher and Fisher, Inc. that LPC's financing of The Golden Triangle Project by investors, such as Prudential Real Estate Investors, Inc, and others, would be conditioned on, among other things, the engagement of a professional service provider for architectural, planning and engineering services pursuant to a contract with terms in a standard AIA, ASCE or EJCDC format, and proof of appropriate professional liability errors and omissions insurance coverage. Fisher, on behalf of himself and Fisher, Inc., represented that Fisher, Inc. would provide both the contract in the appropriate standard term format, and proof of adequate professiona3 Lability insurance coverage. Fisher, Inc. and Fisher agreed, in or around January 2001, to engage in the conduct described below regarding the redesign of the Prior Plans to incorporate changes that would harm LPC and accrue to the benefit of TCC, Mark X. DiSanto, John M. DiSanto and the Trustees, and the submission of plans to the Township of Silver Spring, without LPC's approval or consent. Fisher, Inc. and Fisher knowingly and intentionally concealed from LPC their plan and agreement to engage in the conduct described below, and the details of their glen and agreement are particularly within their own knowledge. Based on the Oral Professional Services Agreement, and even though Fisher, Inc. and. Fisher had not prepared a written contract with terms in the standard term AIA, ASCE or EJCDC format, in or about February 2001, Fisher, Inc. and Fisher began performing professional 6 116012.0060Ih1175061v1 07/25/2003 14:34 FA& BLANR RO%E f~J009 services for LPC concerning The Golden Triangle property. Even though Fisher, Inc. and Fisher knew that LPC needed a contract with terms in the standard term AIA, ASCE or EJCDC format in order to satisfy lending and investment requirements, and even though Fisher,lnc. and Fisher had represented that they would prepare a contract with such terms, Fisher, Inc. and Fisher instead sent LPC a "proposal" for "pmfcssional engineering and planning services relative to The Golden Triangle project in Silver Spring Township, Cumberland County, Pennsylvania", which was dated May 1, 2000 ("Proposa['~. The Proposal expressly reiterated the oral representation that the professional services would involve "updating the land development antl subdivision plan fora 400,000 sq, ft. warehouse as required in the June Ss' 1994 Settlement Agreement, coordination and assistance to IiRG regarding the FEMA flood plain boundary, consultations and coordination regarding the Jimmy George tract for utility connections and preparation of an overall subdivision plea to subdivide the warehouse tract from other lands of Triple Grown Corporation and provide for public access roads and utilities to the tract." (emphasis added) On March 23, 2001, LPC signed the Proposal on the express counter-offer coedlteon that the Proposal had "to be replaced [byJ standard form ASCTs/contract documents.", as agreed in the prior Oral Professional Services Agreement. LPC, through its president, Locke, repeatedly advised Fisher, Inc. and Fisher of the need for them to satisfy the condition of providing a written contract with terms in the standard AIA, ASCE or EJCDC format, In Apri12001, LPC again notified Fisher, Inc. and Fisher of the requirement of such a contract in order to satisfy Prudential's lending requirements. Given the failure of Fisher, Inc. and Fisher to prepare and provide a written contract with terms in the standard AIA, ASCE or EJCDC format, LPC prepared a contract according to the appropriate I16012.OOfi012[i75061v1 07/25/2003 14:35 FA% BLANR ROME fdj010 standard needed to satisfy its lender and investors, and sent it to Fisher, Inc. and Fisher on May 9, 2001. Despite LPC's repeated requests concerning the written contract it sent to Fisher, Inc. and Fisher on May 9, 2001, Fisher, Inc. and Fisher ignored requests for a response, and they failed and rcfuscd to make the contract in the standard term format as orally agmcd, which Fisher, Ina. and Fisher knew was needed by LPC in order to satisfy the lending terms of Pmdential to finance the project. Fisher, Inc. and Fisher provided professional services to LPC under the Oral Professional Services Agreement described above; however, Fisher and Fisher, Inc. were negligent in performing those duties and failed to satisfy the standard of care for professionals providing professional engineering, architecture and plamring services. Among the failures of Fisher, Inc. and Fisher were: • Failure to send to contractors, on a timely basis, copies of plans needed to be used for pricing purposes, and failure to send complete plans to those contractors (Leon Wintermeyer, Inc., R.S. Mowery & Sons, Inc. and Connewago Contractors, Inc. {the "Contractors"]); • Failure to prepare a complete and accurate schedule and, after being advised of numerous eaors and omissions in a proposed schedule, failing to update or revise the schedule as requested; • Failure to incorporate into the plans the Township of Silver Spring's changes outlined in the 1994 Settlement Agreement; • Without notice to or discussion with LPC, making material changes to the plans that were outside the scope of the Settlemen# Agreement, including the location of an entrance driveway and size of the detention basin, and adding a new detention basin on the South side of the building - all of which increased costs and harm to LPC but benefited the Trustees, Mark X. i iso~z.oo6otni nsoaa~~ 07/25/2003 14:35 FA% BL.ANK ROffiE fi1j011 DiSanto and John M. DiSanto, who had agreed to sell The Golden Triangle Project to LPC, owned adjacent land, and had an existing relationship with Fisher, lnc. and Fisher through TGC and the DiSanto Parents; Advising LPC that unauthorized work would not he removed from the plans without the approval of Mark X. Di5anto; Failure to prepare a complete, organized and professional report outlining compliance with and the status of twenty-two comments made by the Township of Silver Spring; Failure to incorporate into plans comments from LPC, made by Locke and its counsel, Jack F. Hurley, Jr., Esquire; Failure to outline any and all changes made to the plans beyond those required by the 1994 Settlement Agreement notwithstandittg the knowledge that such changes jeopardized the Township's approval of The Golden Triangle Project due to deviations from the 1994 Settlement Agreement, and failure to explain the basis for making such changes, despite repeated requests; Failure to meet important pmject deadlines, including failure to incorporate the Township of Silver Spring's comments and resubmit a complete set of land development and subdivision plans by April 12, 2001; Failure to keep LPC apprised of progress on The Golden Triangle Pmject an a timely basis; Revision and submissions of plans to the Township of Silver Spring without notice of the revisions to LPC and without authorization from LPC, including refusal to supply to LPC copies of the plaus for which the Township required resubmission; 9 i i6ozz.oo6mrai i~sobtvi 07/25/2003 14:35 FA% BLANR ROME 1~j012 Failure to secure a quote for errors and omissions insurance coverage despite notice from LPC that this was a requirement from Prudential; and Failure to prepare and provide and enter into a written contract with terms in the standard AIA, ASCE or E7CDC format. In addition to the failures described above, Fishor, Inc. and Fisher made defamatory remarks that were designed to impure the character, business integrity, business acumen and financial ability of LPC. These included: In January 2001, Fisher, Inc. and Fisher advised Matk X. DiSanto that The Golden Triangle Project was being held up because LPC had not authorized Fisher to begin work, in order to create the false impression that LPC was unnecessarily delaying the project; In or about March 2001, Fisher, Inc. and Fisher sought to create the false impression with Mark X. DiSanto that LPC was unnecessarily delaying the engagement of Herbert Rowland Grubic, Ina ("HRG") as a FEMA consultant, even thought they knew that FIItG was still negotiating a contract, that HRG's proposal was based on the development of two buildings and a plan completely inconsistent with The Golden Triangle Project plane, and there were efforts to review work done eight years ago regarding the same project by FII2G; Fisher, Inc. and Fisher informed Mark X. DiSanto that Gannett Fleming was delaying the project when, in fact, they knew that Gannett had been released, had requested information from FEMA, and was waiting for a response; Fisher, Inc. and Fisher advised Mark X. DiSanto on several occasions that LPC was impecunious and unable to pay for services that they had rendered. LPC terminated the services of Fisher, Inc. and Fisher and sought to engage another firm to provide professional services. Fisher, inc. and Fisher interfered by refusing to permit the 10 a i 6oaa..oowina ti ~safii ~a 07/25/2003 14:36 FA% BI.eiNR ROffiE X013 r proposed successor, Michael J. Brill & Associates ("Brill', to use the existing plans or any data from them and threatening to sue Brill if Brill attempted to submit any revised plans based on the plans or data of Fisher, Llc, and Fisher because they owned them and had not been paid for them. In seeking to replace Fisher, Inc, and Fisher, LPC requested Mazk X_ DiSanto to prove that it owned plans or data that Fisher, Inc. and Fisher claimed it owned when it threatened to sue; however, DiSanto failed and refused to give support for their ownership of the plans or data on which Fisher, Fnc. and Fisher threatened to sue Brill and delayed providing such information in order to preclude LPC from engaging a successor engineer on a timely basis. LPC also sought to hire another fist, Gannett Flemming, but again was prevented from doing so. On or about June 7, 2001, the Silver Spring Township Planning Commission met and - given the changes that Fisher, Inc. and Fisher had made to the plans at the direction of Mark X. DiSanto, Jobn M. Di5anto and the Trustees and given their failure to adhere to the 1994 Settlement Agreement - recommended that preliminary subdivision of The Golden Triangle Project be denied because it was inconsistent with the 1994 Settlement Agreement. As a direct and proximate result of defendants' conduct described above, LPG has suffered substantial economic harm, has had its contract and business relationships interfered with and has been prevented from acquiring and developing the unique real property 1ot:ated in The Golden Triangle Project. As a result of the conduct of Fisher, Inc. and Fisher, LPC sought to resolve any outstanding issues between them. Utrlolown to LPC, and while it was negotiating in good faith, and after the Trustees, Mazk X. DiSanto and John M. D1Santo had acknowledged their delays by agreeing to extend rho Outside Closing Date until July, 2002, and while LPC was waiting for the release of the plans by Fisher, Inc. and Fisher, on or about September 20, 2001, Fisher, loo. and Fisher filed this lawsuit. Fisher, Inc. and Fisher concealed this lawsuit from LPC 11 116012.00601{2117S061v1 07/25/2003 14:36 FA% BLANR ROBE ~ 014 during negotiations, and evemlrally served it at Locke's home address on Saturday, January 19, 2002. Plaintiffs complaint alleges breach of Contract against LPC. LPC alleges counterclaims for: (1) Fraud; (2) Negligent Misrepresentation; (3) malpractice; (4} Breach of Covenant of Good Faith and Fair Dealings; (5) Tortious interference with Contract; (6) Breach of Contract; ('~ Defan-ation; (8) Declaratory Judgment. 2. STATEMENT OF FACTS AS TO DAMAGES Plaintiff alleges in its Complaint that LPC owes $20,688.86 as of June 1, 2001 and requests interest at the rate of 1 %:% per month. LPC alleges in its counterclaims that it has been damaged as a result of Plaintiff s conduct in an aihount exceeding $150,000.00 to be detemuned at trial. Damages include: (1) civil engineering fees --$70,000.00; (2) deposit on ]and -- $60,000.00; (3) legal fees --$30,000.00; (4) traffic report--$10,000.00; (5) LPC personnel wages- -$30,000.00. 3. STATEMENT AS TO THE PRINCIPAL ISSUES OF LIABILITY AND LPC denies ever entering into a written contract with Plaintiff, and asserts that it made a counteroffer to Plaintiff, which was never accepted. Moreover, LPC asserts that Plaintiff fraudulently induced LPC into entering into the oral contract for prafessional services, and that contract should be void. LPC also asserts that as a result of Plaintiff's wrongful conduct, LPC has been damaged in that the plan to develop the golden triangle project has never been approved and as a result Plaintiff has lost a great deal of money. 4. SU1VIlYfARY OF LEGAL ISSUES Thctc are none at this time. Defendant reserves the right to supplement. 12 t ~5at2.oos°trztnsobiw 07/25/2003 14:36 FA% ~s: BI.ANR ROffiE f~1j 015 5. IDENTITY OF WITNESSES A. William Locke B. Robert J. Fisher C. Alex A. DiSanto, Jr. D. Julia Szabo E. MarkDiSanto F. Mark X. DiSanto G. Jobn M. DiSanto H. Dona L. DiSanto I. Representative of the Township of Silver Spring J. Representative of Leon Wintermeyer, Inc. K. Representative of RS. Mowery & Sons, Inc. L. Representative of Conncwago Contractors, Inc. M. Jack F. Hurley, Esquire N. Representative of Michael J. Brill Associates O. All witnesses on.Plaintitl's list. P. Defendant reserves the right to supplement. 6. LIST OF EXHIBITS @VITH $RiEF IDENTIFICATION OF EACH 1. May 1, 20001etter with attached purported contract from Robert J. Fisher to William E. Locke for professional design services for the golden triangle project. 2. Agreement of Purchase and Sale dated July 10, 2000 between John DiSanto, Alex A. DiSanto, Jr., Julia Szabo and Mark DiSanto and Locke Property Company for the sale of the golden triangle pmpcrty. iiwtx.oowinu7so6i~i 13 07/25/2003 14:37 FA% BI.ANR ROffiE f~J016 3. Agreement by and between Alex A. DiSanto and Donna L. DiSanto and Triple Crown Corporation and the township of Silver Spring dated June 8, 1994. 4. November 2, 20001etter from Mark X. DiSanto of Triple Crown Corporation to William Locke regarding additional costs, 5. January 17, 2001 fax with amendment from Mazk X. DiSanto to William Locke. 6, January 22, 2001 fax memo from William Locke to Mark DiSanto regarding first amendment to agreement of purchase and sale. 7. August 30, 2001 fax from William Locke to Mark DiSanto regarding first amendment to agreement of purchase and sale. 8. January 18, 20021etter from William Locke to John DiSanto, Alex A. DiSanto, Jr., Julia Szabo, Mark DiSanto, John D1iSanto notifying sellers that buyers not in default. 9. March 14, 2001 fax from William Locke to Robert Fisher regarding cancellation of meeting. 10. June 5, 2001 fax from William Locke to Robert Fisher regazding invoices, refusal to sign contract. 11. June 8, 2001 letter from William Locke to Robert Fisher detailing history of problems and obstacles. 12. June 8, 2001 letter from William S. Cook of Silver Spring Township to Triple Crown Corporation recapping meeting in which Silver Spring Township Planning Commission recommended that the development plan be denied. 13. June 22, 20011etter from F. R. Martsolf to Jack F. Hurley, Jr. regarding Silver Spring Township recommendation and denial of approval for land development plan. 14 116012.00601211750Fiv1 07/25/2003 14:37 FA% BI.ANR ROBtE r i 4. 2002 submission to the Silver Spring Township by Robert Fisher and Mark DiSanto along with related correspondence requesting the review and approval of previously rejected changes. 15. All documents on Plaintiff s list. 16. Defendant reserves the right to supplement. 7. STATUS OF SETTLEMENT NEGOTIATIONS No settlement discussions have taken place. Plaintiff made a demand of $10,000.00, which was rejected by LPC. Dated: July 25, 2003 Respectfully submitted, Alexander D. Bono (Pa. Id. 25845) Frank A. Dante (Pa. Id. 87888) BLANK ROME LLP One Logan Square Philadelphia, PA 14103 215-564-5500 215-569-5555 (fax) A#orneys for Defendant, Locke Properly Company, Inc. f~o17 15 i iwiz.oowini ~7so6rvi 07/25/2003 14:37 FA% BLANR ROME I~j018 A CERTIFICATE OF SERVICE It is certified that on July 25, 2003 a copy of Locke Property Company, Int.'s Pretrial Memorandum was served by facsimile and first class mail upon: Craig A. Diehl, Esquire Law Offices of Craig A. Diehl 3464 Trindle Road Camp Hill, PA 17011-4436 ~~~z FRANK A. DANTE 16 116012.006012117506Iv1 Pbone: (115J 569-5645 Far: (21 S) 833-5643 Email: dance®blaakrome.cam July 25, 2003 VIA FACSIMILE (717-240-64521 The Honorable Edward E. Cruido Court of Common Pleas for the County of Cumberland Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: R3. Flshcr & Associates, Inc. v. Locke Property Company, Inc. Civic Ac#on No. 01-Sd77 Dear Judge Guido: Pursuant to a telephone conversation with Sandy in your chambers, Inclosed is a copy of Defendant Locke Property Company, Inc.'s Pretrial Memorandum, which is being delivered via overnight mail to the Court Administrator for filing. Thank you for your courtesies with this matter. Respectfully, PRANK A. DANTE PAD ;jb Enclosure cc: Craig Diehl, Esquire (via facsimile) One Logan Square 18th & Cheny Stneeh Philadelphia, PA 14103-6998 www.BlankRome.mm • Flodda + MaMand • New lersep • New York • Ohio • Pennsylvania Washington, D[ 07/25/2003 14:32 FA% Bi.ANR ROffiE f~j001 ! ~ r BLANK ROMEur CWNEELWS AT LAW FAX TRANSMITTAL FORM Date: July 25, 2003 TO: FIRM: FAX NO.: CONFIRMATION NO.: 1. The Honorable Edward E. Guido Court of Common Pleas for Cumberland County 7I7-240-6462 From: Frank A. Dante, Es . Phone: 215) 569-5645 Fax: 215 832-5645 Email: dente@blankrome.com Atty No.: 1832 # of Pages: ! p include cover 1 O Client/Matter #: 116012-00601 ORIGINAL: WHEN COMPLETED: Will Follow: X Call For Pickup: Will Not Follow: Send Interoffice: COVER MESSAGE: CONFIDt.hI7W.ITYNQTE: The documents accompanying this fax transmission contain Infopnatlon, which may be confidential and/or legally privileged, from the law firm of Blank Rome LLP. The lnforinstlon Is intended onry far the uae of the individual or entity named an this transmission sheet. If you are not the intended rooipient, you ere hereby notified that any tlisi:losure, copying, tlBtdbu[ion or the taking of any adian in reliance on the cantefds of this faxed inlonna0on Is stdGly prohibited, and thaE the documents ahoutd be returned to this film immediately. H you have received this In error, please not(fy Ua by telephone immediatey at fhe number listed above, collect, so that wa may arrange for the Tatum of the original documents to us of no oos! to you. The unauthorized disclosure, use, or publication of cordldantial or pdvileged kdormation inedveRenty trensmkted toyou may resua In criminal and/or etvil liablll TRANSMITTED BY: DATE SENT: TIME SENT: TIME CALLED: BUSY: NO ANSWER: WRONG NUMBER: NO CONNECTION: One Logan Square 1 Bth 8 Cherry Sheets Philadelphia, PA 19103 2t5.559.55g0 Fax. 215.569.5555 www.BlankRome.com 116a12.006m2117S337v I ~r15!`: BLANK ROME COMISKY & MCCAULEY LLP By: ALEXANDER D. BONG Identification No. 25845 By: FRANK A. DANTE Identification No. 87888 One Logan Square Philadelphia, PA 19103 215-569-5500 Attorneys for Defendant Locke Property Company, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., Plaintiff, NO. 01-5477 CIVIL ACTION -LAW v. LOCKS PROPERTY COMPANY, INC., Defendant. LOCKS PROPERTY COMPANY, INC.'S PRELIMINARY OBJECTIONS TO COMPLAINT Defendant, Locke Property Company, Inc. ("LPC"), pursuant to Pennsylvania Rule 1028, raises the following prelirninary objections to the Complaint of Plaintiff, R. J. Fisher & Associates, Inc. ("Fisher, Inc."). PRELIMINARY OBJECTION NO.1: DEMURRER (RULE 1028(a)(4)) 1. The Complaint fails to state a claim upon which relief can be granted because the alleged written contract on which Plaintiff seeks to premise its claim, on its face, was never agreed to by LPC or anyone on behalf of LPC. The alleged written agreement attached to the Complaint as Exhibit "A" was signed with the counter offer terms: "to be replaced Standard/Form ASCE/Contract Documents." This constituted acounter-offer and not an acceptance of the proposed written contract. Thus, as a matter of law, a written contract was 116012.00601/20995388v1 never formed between the parties. GMHAssociates, Inc. v. Prudential Realty Group, CB, 752 A.2d 889, 899 (Pa. Super. 2000); Yarnell v. Almy, 703 A.2d 535, 538-39 (Pa. Super. 1997). PRELIMINARY OBJECTION N0.2: INSUFFICIENT SPECIFICITY (RULE 1028(a)(3)) 2. The Complaint fails to plead with sufficient specificity to make LPC aware of the nature of Plaintiff's claims, and to afford LPC the opportunity to make a proper defense. Rule 1028(a)(3) allows for a defendant to object to a complaint that lacks specificity in order to give the defendant an opportunity to understand the allegations being made and to prepare a proper defense. Rule 1028(a)(3); Seghetti v. Heritage Resorts of Gettysburg, 19 Pa. ID.&C. 4th 218, 221 (1993). PRELIMINARY OBJECTION N0.3: FAILURE TO CONFORM TO A RULE OF COURT (RULE 1028(a)(2)) 3. Plaintiff s Complaint fails to satisfy the requirement of Rule 1019(h) to specifically state whether the claim(s) made are based on an oral or written agreement. The Complaint alleges that both an oral and written contract existed, but fails to state which alleged contract provides the basis for the claim. Rule 1019(h). PRELIMINARY OBJECTION N0.4: FAILURE TO CONFORM TO A RULE OF COURT (RULE 1028(a)(2)) 4. The Complaint fails to satisfy the requirement of Rule 1020(a) to state each cause of action in a separate count containing a demand for relief. Plaintiff s Complaint does not separate the cause(s) of action into counts nor does it even state the nature of the cause(s) of action. Rule 1020(a). 116012.00601/20995388v1 ~,~".: i WHEREFORE, the preliminary objections of Defendant LPC should be sustained and the Complaint should be dismissed in its e~h ety with prejudi~e. v~ Dated: February 20, 2002 Alex de D. Bono (Pa. .25845) `: Fr A. Dante (Pa. Id. 87888) BL K ROME COMISKY & MCCAULEY LLP i One ogan Square j Phil elphia, PA 19103 ;215- 69-5500 215-569-5555 (fax) Attorneys for Defendant, Locke Property Company, Inc. 116012.00601/20995388v1 CERTIFICATE OF SERVICE It is certified that on February` 2002 a copy of Locke Property Company, Inc.'s Preliminary Objections was served by first class mail and fax upon: Craig A. Diehl, Esquire Law Offices of Craig A. Diehl 3464 Trindle Road Camp Hill, PA 17011-4436 ~__~~~ C FRANK A. DANTE 116012.00601/20995388v1 .. c : ~ -: - ~_ . v. - , ~ - ~ ,_; . t? r ~ [r: ,: _: ..: _ ':~ ~ ~S R. J. FISHER & ASSOCIATES, INC., Plaintfiff vs. . LOCKE PROPERTY . COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 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 (717) 249-3166 R. J. FISHER & ASSOCIATES, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. NO. Ol - .S~r°'~7 Cfl~-~' LOCKS PROPERTY COMPANY, INC., CIVIL ACTION -LAW Defendant NOTICIA USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personahnente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier soma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 R. J. FISHER & ASSOCIATES, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. NO. D~_ 6"~7? ~G~ LOCKS PROPERTY COMPANY, INC., CIVIL ACTION -LAW Defendant COMPLAINT 1. Plaintiff, R. J. Fisher & Associates, Inc., is a Pennsylvania corporation with its principal office address at 1546 Bridge Street, New Cumberland, Cumberland County, Pennsylvania, 17070. 2. Defendant, Locke Property Company, Inc., is believed to be a Massachusetts corporation, with its principal office address at 46 Central Street, Manchester-By-The-Sea, Massachusetts, 01944. 3. On or about February, 2001, Plaintiff and Defendant entered into an oral agreement for professional engineering and planning services to be performed by Plaintiff on behalf of Defendant relative to its Golden Triangle project in Silver Spring Township, Cumberland County, Pennsylvania. 4. Based on this oral agreement and instruction by Defendant, Plaintiff commenced services and had two or three meetings with William Locke to discuss the status and various issues with the project prior to the execution of a written agreement. 1 5. A written agreement dated May 1, 2000 was eventually executed by William E. Locke, President of Locke Properly Company, Inc., approving the written proposal by Plaintiff on or about March 23, 2001. See Exhibit "A" attached hereto and made a part hereof for a full and accurate copy of said agreement. 6. Plaintiff continued to provide professional services through May 31, 2001 at which time services ceased due to nonpayment of prior invoices. 7. The amount owed by Defendant to Plaintiff is $20,688.86. Copies of the invoices are attached hereto and made a part hereof as Exhibit "B". 8. Pursuant to the written agreement, interest accrues at the rate of 1-1/2% per month on delinquent balances after 30 days from the invoice date. 9. Despite demand, Defendant has failed and refused to pay the aforementioned unpaid balance of $20,688.86 as of June 1, 2001. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in favor of the Plaintiff and against the Defendant in the amount of $20,688.86 plus continuing interest at the rate of 18 percent per annum plus costs of this proceeding. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Dated:.r~6tP ~~ s~o0/ Craig .-Diehl, Esquire Attorney ID No. 52801 3464 Trindle Road Camp Hill, PA 17011-4436 (717) 763-7613 Counsel for Plaintiff 2 R. J. FISHER & ASSOCIATES, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. NO. LOCKS PROPERTY COMPANY, INC., CIVIL ACTION -LAW Defendant VERIFICATION I, Robert J. Fisher, President of R. J. Fisher & Associates, Inc., verify that the statements made in the foregoing COMPLAINT are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. R. J. FISHER & ASSOCIATES, INC. ~~ r Date: f3/3o Ol By: Robert J. Fisher, President R. J. Fisher & Associates, Inc. ~ 1546 Bridge Street •'f4ew Cymberland, PA 17070 's 717-774.7534 • FAY:717-774-7180 :t ENGINEERING,PWNNING,SURVkY1NG8iANDSCAPEARCN1TECiURE www.rjfisher.org Fist-ir_2.~ ~ May 1, 2000 Mr. William h'. Locke Locke Property Company 4 Rtuuting Ridge Road Manchester-By-The-Sea, MA 01944 Re: Professional Design Services for the Golden Triangle Project Silver Spring Township, Cumberland County, Pa. Dear Mr. Lucke. We are delighted to provide this proposal to you for professional engineering and planning services relative to rho Goldcu Triangle project in Silver Spring Township, Cttmber]and County, Pennsylvania. C7ttr services will include, updating the land development and subdivision plan for. a 400,000 sq. ft. warehouse as required in the June 8i° I9J4 settlement agreement, coordination and assistance to HRG regarding the FEMl4 flood plain boundary, consultations and coordination regarding the Jimmy George tract. for utility connections and preparation of an overall subdivision plan to subdivide the warehouse tract from other ]ands of Triple Crown Corporation and provide for public access roads and utilities to the tract. As we discussed the total scope of this project is hard to define due to the complexities of the settlement agreement, the FEMA issues and other agreements needed for the utility service. R.J. Fisher ~ Associates, Tnc. is proud of our reputation of providing responsive professional services for a wide variety oPsuccessful clients. We take special pride in our design team expenise of land planning, site desie~., construction, Anil landscape architecture can create very attractive and yet alTordabhi project. A. SERVICES TO BE PRUV1llEll S1JBD[VISIUN PLAN • Yrcpare a Subdivision to separate the warehouse tract from other lands ofTriplm Crown Corporation. • Prepare street and utility plate anil prolilcs. • Yrcpare grading plans for streets and stormwater management facilities. • Prepare stormwater design and management calculatiotts az3d report. • Coordinate with HRG on 1•'lood P4zin revisions and assist with exhibits. • Client consultations and meetings on site design issues. • Submission of Subdivision Platt to the Municip<~tlity. • Presentations at municipal meetings to address comments. ~' ; LAND DEVF.T..OPMENI' • Prepare a Laud Development Plan fora 400,000 sq. ft. warehouse generally following the prier plan referenced in the June 8'" settlement agreement. • Prepare updated site grading plan fnr building, parking and stormwater management facilities. • Prepare plans and proSles for on-site utilities. • Prcparc stotmwater design and management calculations and report. • Client consultations and meetings on site design. • Submission of Land Development Plan to the Municipality. • Presentations at municipal meetings to address comments. B. COMPENSATION The following are our estimated tee fnr performing the above services. Billing will be i6i- weekly based oa the services completed as of the date of the invoice. All Sees wiLL be valid for services authorized and paid for in 2000. Costs for all submission, review Secs, prints, Mylar's and other expenses will be paid for by the diem and are not included in the fees for professional services, Other services requested which are not included in the above items will be reimbursed on an hourly basis in accordance with the fee schedule -~. listed below. A retainer in the tunouat of $ 3.000.00 will be due upon execution of this ~;;~ proposal. The retainer shall be applied to the final invoice fnr services on this project. Estimated Fee SUBDIVISION PLAN $15,000.00 LAND DEVELOPMENT PLAN $ 20,000.00 fiF,F. SCf1E.DULE Enginccx Vlil $95.00/Hour Engineer VII $50.00/Hour Engineer VI $75.00/Hour Engineer V $60.00/Hour Engineer IV 550.00/Hour Engineer III $45.OO/lIour Engineer II $35.OOhIour Engineer 1 $30.00/Hour Landscape Arch VI $70.00/Haur Landscape Arch V $60.00/Hour I..andscape Arch IV $55.00/IIour Landscape Arch III $50.00/Hour Landscape Arch. II $45.00lHour CAU Llesigner VI ~' $60.00/Haur CAD Dc~igncr V $50.00/llow CAD Designer IV $45.00/tiour CAD Designer III $40.00lFlour CAD D~i~zrer II S35AOJHow CAD Designer I $30.OO/Hour Survey Crew (2 persons} $100.00/Hour Survey Craw (3 persons) $I50.00/Flour C. Client shall provide all criteria and full information as to the clients requirements fon the project; designate a person to act with authority oa clients behalf in respect to all aspects ofthe project; examine and respond promptly to cousuhants submissions; and give prompt written notice to consultant whenever he observes or otherwise becomes awere of any defect in the work. D. Liability of the consultant for any service pertdrmed under this coatraM shall be limited to the amount of the tee charge. E. The provisions of the attached Exhibit 1 aze incorporated hereunto and made a part of this agreement. "` If this proposal is acceptable, please sign the enclosed copy of this letter and •~ re[um it to us. Thank you for the opportunity to serve you. rely, Robett J. Fisher, PT.S., PE. President Accepted this ~'`d day of ~''~ , 2000. z uu I L.+ASU~E R^oay-rY a-..,~Etn-1 , .at By. w:N-- E ~o-rk TL. R+~t3. OL-"~ 'F g~ tzE rpcRCe 0 sfi..~~i CONTRACT BETWEEN LOCKS PROPERTY COMPANY and R.J. FISFIER & ASSOCIATES, INC. STANDARD PROVISIONS OF CONTRACT FOR PROFESSIONAL S)RVICES The client and consultant sgree that rite following provisions shall be part oftheir agreemrnc: 1. Consultant shall not kx: liahle far damage retulting Gam the actions or inactions of govemmrntal agencies, and consultant shall only ad as an adviser in all governmental relations. 2. All fees and other charges will be billed by weekly nttd shall be due at the time of bill tog unlcvx otherwise spu:ifiecl in this ab~rcement. The fee schedule included, as part ofihe agreement shall6e adjtrsted amually. 3. A latapayment PENALTY of one and ono-half per cent per month, which is an annual rate of tightt~n per tt`nt (18%), shall be applied to any unpaid balance, commencing thirty (30) days after the date of We original invoice. 4. ~ In the even[ that any smkutg is destroyed by an act of God or parties other than emtsultant, the cost of restaking shall be paid by client as extrst work, provided such work is authorized by client. 5. The clienc shall pay the costs of checking and inspection ices, governmental fees, soil-testing ftxs, aerial ,, photography fees, title-company charges, blueprints and reproductions, and all aher chazges not specifically covered by the terms of this agreement. ~' ~ Any fees or costs paid by the consultant on behalf of the client shall be subject to a 10% handling fee. 6. In the event all or any portion of the work prepared or partially prepared by the consultant be suspatdcd, abandoned terminated, the client shal I pay the consultant far pll foes, charges, and services provided Cos the project, not to exceed any contrail limit specified herein. 7. In the event of litigation, client agrees to pay in consultatt ittter~st an all past due balances at the rate of 113% per annum. or the rate 2% per annum outs the inttstst costs acptally incurred by consultant due to such client default whichever is mare. 8. In the event client fails to pay consultant within thirty (30) days after invoices are rendered, clirn[ agree that rnitsultant shalt have the eight to consider said default a total breach of this agreemett and, upon written nonce, the duties, obligations, and responsibilities of the consultant tinder this agreement are tBtrn terminated: 9. In the event thst client institutes a suit against consultant because of any fiilure or an alleged failure to perform, error, omission or negligrnce, and if such suit is not successfully prasewted, client agrees to ?ay consultant any and all costs of defense. 10. All original papers attd documents, attd copies thereof; produced as a result of this contract, excepu documents which are required to be tiled with public agencies, shall rtxttain the property of the consultlant and may be used by constltant without the consent of client. -They are not intended or represented m law suitable for reuse by the client or others on extauions of the project or on any other project My reuse without written verifiption or adaptation by the consultant for the specified proposes intrnded will be u the clirnt sale rink and without liahility or.lcgal cxposuzc to the consultant; and client shall indemnify and hold harmless consultant from all claims damages, lossts and expcnsuw including attorneys fixs arising our of or resulting there from. My such verification or adaptation will entitle consultant to further compensation at rates to be agreed upon by client and consultant. i ~ ~ ~4~ iyry:i ~ `~M~Se~xi~.~tl'7Y^.'N R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 • FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE www. rjf is h e c o rg Statement DATE 7/11/2001 TO: Mr. William E. Locke Locke Property Company 46 CenVal Street Manchester, MA 01944 AMOUNT DUE AMOUNT ENC. $20,688.86 E ~DAT TRANSACTION AMOUNT BALANCE ~ 11 2/31/2000 Balance forward ],245.00 200032 Golden Triangle 7- 02/23/2001 IIdV #3622 3,000.00 4,245.00 02/23/2001 PMT -865.00 3,380.00 02/23/200] PMT -380.00 3,000.00 02/23/200] PMT -3,000.00 0.00 03/30/2001 INV #3693 6,475.59 6,475.59 04/13/2001 1NV #3701 7,155.47 13,631.06 04/27/2001 1NV #3746 1,237.09 14,868.15 05/04/2001 1NV #3756 1,546.86 16,415.01 05/18/2001 1NV #3779 2,989.41 19,404.42 05/25/2001 INV #3792 0.00 19,404.42 06/01/2001 1NV #3822 493.54 19,897.96 201055 Golden Triangle Pa DOT HOP- OS/18/2001 IAN#3780 790.90 2Q,688.86 CURRENT 1-30 DAYS PAST 31-60 DAYS PAST 61-90 DAYS PAST OVER 90 DAYS AMOUNT DUE DUE DUE DUE PAST DUE 0.00 4,273.85 9,939.42 6,475.59 0.00 $20,688.86 R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE www. rjf is h e r. org Invoice I BILL TO I I Mr. William E. Locke ~!, Locke Property Company ' 46 Central Street Manchester, MA 01944 DATE INVOICE # L 6/1/2001 3822 P.O. NO. TERMS PROJECT Due on receipt 200032 Golden Triangle 7 I DESCRIPTION J QUANTITY RATE AMOUNT Professional Engineering, Planning, and Surveying Services rendered during the time period from - - 05/26/01 to 06/0]/01 Project No. 200032 Golden Triangle 7 + Prepare erosion & sedimentation control plans. * Coordination with PaDOT [o setup meeting on permit. * Followup with Township on PaDOT issues. _ ~~ i Engineer VIII 4 95.00 380.00 Engineer VI 9 70.00 630.00 Postage or express mail t8deral express 26.66 26.66 fee paid on behalf ofclient - - 34.38 34.38 credit remaining $577.50 out of $3000.00 deposit -577.50 -577.50 PAYMENT DUE UPON RECEII'T. LATE PAYMENT FEE 1-I/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. TOtaI $493.54 ~~n. ~:. . i R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE www. rjf is h e r. o rg Invoice ~ BILL TO Mr. William E. Locke Locke Property Company 46 Central Street I Manchester, MA 01944 DATE INVOICE # ~ 5/25/2001 _ 3792 - P.O. NO. TERMS PROJECT ~ Due on receipt 200032 Golden Triangle 71 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE I-I/2% PER MONTH AETER 30 DAYS PAST INVOICE DATE. TO~~ $0.00 ~_ R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE www. rjfishe r. org Invoice BILL TO DATE INVOICE tf Mr. William E. Locke 5/18/2001 3779 Locke Property Company 46 Central Streei Nlanchesteq MA 01944 P.O. NO. TERMS - PROJECT L Due on receipt 200032 Golden Triangle 7 ~ DESCRIPTION QUANTITY RATE ^I AMOUNT - Professional Engineering, Planning, and Surveying Services rendered during the time period from OS/OS/Ol [0 05/18/01 Project No. 200032 Golden Triangle 7 * Client consultations on site plan issues. * Coordination with Township on sanitary sewer pumping station issues. * Revisions to Subdivision Plan per Township comments, * Revisions to Land Development Plan per Township comments. - Engineer VIII 6 95.00 570.00 Engineer VI 31 70.00 2,170.00 Mileage mi. @ $0.345/mile 12 0.345 4.14 Prints 1.00 /each 204 0.64 130.56 fee paid on behalf of client -Johnson Imaging 34.38 34.38 Postage or express mail 1.39 1.39 Intrest on Past Due Account.55 days 78.94 78.94 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. TOtaI $2,989.41 ~_ ----- R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 • FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE www. rjfis h e r. org Invoice BILL TO Mr. William E. Locke Locke Property Company 46 Central Street Manchester, MA 01944 DATE INVOICE #-J 5/4/2001 3756 P.O. NO. TERMS PROJECT Due on receipt 200032 Golden Triangle 7 i _. _ DESCRIPTION QUANTITY RATE AMOUNT Professional Engineering, Planning, and Surveying Services rendered during the time period from - 04/28/01 to 05/04/01 Project No. 200032 Golden Triangle 7 ; * Client consultations on site planissues. * Presentation at Planning Commission meeting. i * Followup on comments and begin plan revisions. * Consultations with Gannett Fleming on Flood plain issues. Engineer VI 15.75 70.00 1,102.50 Engineer VIII 4 95.00 380.00 Mileage mi. @ $0.345/mile 39 0.345 13.46 Interest on past due account - 69 days 50.90 50.90 i i PAYMENT DUE UPON RECEII'T. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. Total $1,546.86 R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 • FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING 8 LANDSCAPE ARCHITECTURE www. rjfi sh a r. org invoice BILL TO Mr. William E. Locke Locke Property Company 46 Central Street ,Manchester, MA 01944 DATE INVOICE # 4/27/2001 3746 P.O. NO. TERMS PROJECT Due on receipt 200032 Golden Triangle 7 DESCRIPTION QUANTITY RATE AMOUNT Professio»al Engineering, Planning, and Surveying Services rendered duirng the time period from 04/14/01 to 04/27/01 Project No. 200032 Golden Triangle 7 * Client consultations on site plan issues. * Consultations with Township on sanitary sewer options. * Revise pumping station location. * Begn erosion and sedimentation control plan and coordination with Conservation District. CAD Design III 0.5 40.00 20.00 Engineer VIII 4 95.00 380.00 Engineer VI 10.5 70.00 735.00 Mileage mi. @ $0.345/mile 51 0.345 17.60 Postage or express mail 39.80 39.80 Interest on past due - 76 days 44.69 44.69 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE I-112%PERMONTH AFTER 30 DAYS PAST INVOICE DATE. TO~~ $1,23209 ~__ { i '~ , R. J. Fisher & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING 8 LANDSCAPE ARCHITECTURE www. rjf is h e r. org Invoice BILL TO Mr. William E. Locke Locke Property Company 46 Central Street Manchester, MA 01944 4/ID32 Ol IN 3O10CE # ~ P.O. NO. TERMS-PROJECT Due on receipt 200032 Golden Triangle 7 ~ DESCRIPTION QUANTITY ~ RATE AMOUNT Professional Engineering, Planning, and Surveying Services rendered duirng the time period from 03/21/01 to 04/13/01 Project No. 200032 Golden Triangle Subdivision Bc Land Development Plans. * Client consultations and meetings on site plan issues. * Prepare Final Subdivision Plans. * Prepare Land Development Plan. * Prepare street and utility plans and profiles. • Prepare stormwater management design, calculations and report. * Coordination with HRG on flood plain issues. Engineer VIII 21 - 95.00 1,995.00 CAD Design V 4.5 55.00 247.50 Engineer VI ~ 50.5 70.00 3,535.00 CAD Design lu 1 I 40.00 440.00 Landscape Arch. VI 5 70.00 350.00 Intrest on Past Due Account. 90 days 304.09 304.09 fee paid on behalf ofclient - 546 sq ft plain paper copy 57.88 57.88 Prints 1.00 /each 226 1.00 226.00 PAYMENT DUE, UPON RECEII'T. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. T(1~~ $7,155.47 R. J. Fishe} & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING BIANDSCAPE ARCHITECTURE www. rjf is h e r.o rg Invoice BILL TO ~ DATE INVOICE # i Mr. William E. Locke 3/30/2001 3693 Locke Property Company i 46 Central Street Manchester, MA 01944 P.O. N0. TERMS PROJECT ~ Due on receipt 200032 Golden Triangle DESCRIPTION QUANTITY RATE AMOUNT Professional Engtneenng, Planning and Swveying services rendered dwing the time period from ~ ' 02/2 03/30/Ol '' Project No. 200032 Golden Triangle 7 * Client consultations and meetings on site design issues. * Prepare preliminary sketch plan. * Prepare preliminary grading plan. * Evaluate grading and stormwater issues. * Revise site sketch p]an and grading per clients comments. * Field swvey to check of storm sewer elevations. Engineer VIII 22 95.00 2,090.00 Engineer V1 54 70.00 - 3,780.00 Landscape Arch. V1 0.75 70.00 52.50 2 Man Swvey Crew 2 100.00 200.00 Yee paid on behalf of client 40.07 40.07 ~, Intrest on Past Due Account. -103 days it 313.02 313.02 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE ~l-1/2%PER MONTH AFTER 30 DAYS PAST INVOICE DATE. TOt$I $6,475.59- R. J. Fishe? & Associates, Inc. 1546 Bridge Street • New Cumberland, PA 17070 717-774-7534 • FAX:717-774-7190 ENGINEERING, PLANNING, SURVEYING $ LANDSCAPE ARCHITECTURE www. rjf is h e r. org Invoice BILL TO Mr. William E. Locke Locke Property Company 46 Central Street Manchester, MA 01944 DATE INVOICE # --~ 5/18/2001 3780 -1 P.O. NO. TERMS PROJECT ~ Due on receipt I 201055 Golden Triangle. _-i PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. TQ~~ $790.90 ~ - ~~ • ~;. °~ `~ "~ ~ '~ G~ I ~~` c~ -. ~ ~: , ry ., ~~ ', r~ 6 ~ ~ ` 7 i ~ 5 .. {~ "+l .. BLANK ROME COMISKY & MCCAULEY LLP By: ALEXANDER D. BONG Identification No. 25845 By: FRANK A. DANTE Identification No. 87888 One Logan Square Philadelphia, PA 19103 215-569-5500 Attomeys for Defendant Locke Property Company, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., Plaintiff, v. LOCKE PROPERTY COMPANY, INC., Defendant. NO. 01-5477 CIVIL ACTION -LAW ENTRY OF APPEARANCE TO: PROTHONOTARY Kindly enter an appearance for us as counsel for the Defendant, Locke Property Company, Inc. D. Bono (P~: Id. A. Dante (Pa. Id. 87888) e Logan Squaze Philadelphia, PA 19103 215-569-5500 215-569-5555 (fax) Attomeys for Defendant, Locke Property Company, Inc. LLP 116012.00601/2099551'7x1 CERTIFICATE OF_,5_ERVICE -I'~- It is certified that on February 2002 a copy of Entry of Appearance was served via first class mail and fax upon: Craig A. Diehl, Esquire Law Offices of Craig A. Diehl 3464 Trindle Road Camp Hill, PA 17011-4436 ~~s~`~zc~-e FRANK A. DANTE 116012.00601/20995517v1 r; ,- ~:__ -~: ~_ P_ /.. _ ~'~ L'- 1 ~, i,_ , _ ~'-'- ~-- ~_ ~-. i.r~ .5' l~,~ ~ w P~.AEC~PE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY; Please last the within matter for the next A=yanent Court. CAPTION OF CASE (entire caption must be stated in full) R.J. FISHER & ASSOCIATES, INC. (Plaintiff) vs. (Defendant) ~, O1 Civil 5477 ~ 2001 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurer to cca~laint, etc.) Defendant's Preliminary Objections to Complaint. 2. Identify counsel who will argue case: (a) for plaintiff: Address: Craig A. Diehl, Esquire 3464 Trindle Road Camp Hill, PA 17011 (b) for defendant: Alexander Bono, Esquire/ Frank A. Dante, Esquire Address: One Logan Square Philadelphia, PA 19103 3. I will notify all parties in writing within two days that this case has been Lfsted for a*m+~nt. 4. Argur~ent Court Date: May 22, 2002 ~~ ~~~ Attorn for Plaintiff LOCKS PROPERTY COMPANY, INC. Cited: ..• ~ ~. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RJ. FISHER & ASSOCIATES, INC., Plaintiff NO: O1-Civil-5477 v. LOCKS PROPERTY COMPANY, INC., : CIVIL ACTION -LAW Defendant CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date, a true and correct copy of the foregoing document was served upon the opposing parties by way of facsimile and United States First Class Mail, postage prepaid, addressed as follows: Alexander Bono, Esquire Frank A. Dante, Esquire One Logan Square Philadelphia, PA 19103-6998 Fax Number: (215) 569-5555 Date: LAW OFFICES OF CRAIG A. DIEHL By: ~ Ste hani A. Moore~,eg Secretary 3464 Trindle Road Camp Hill, PA 17011 (717)763-7613 r r n ~ O C. .-W a rrr r %~ ;' ..-~ 5 ~ - ~ -(, ~ 1 v ' p ' f ' f`: - T ,7 ;_;, 7 ~ ~ J~;1 C. `, '~ " ~` (YJ ` R. J. FISHER & ASSOCIATES, INC., , Plaintifff vs. . LOCKS PROPERTY COMPANY, INC., Defendant TO THE PROTHONOTARY: Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5477 CIVIL CIVIL ACTION -LAW PRAECIPE Kindly remove the above-captioned matter from the argument list on May 22, 2002. The parties are attempting to amicably resolve their dispute. LAW OFFICES OF CRAIG A. DIEHL Dated:~~~ 2a02 By: l.tu,4~Q- Crazg Diehl, Esquire Attorney ID No. 52801 3464 Trindle Road Camp Hill, PA 17011-4436 (717) 763-7613 Counsel for Plaintiffs n ~ c ~ ,~ row; mrn x„ -~ ,--, r~, __ z =' zr "' ~ --~ m ~; `, cn Y ~ ~: . ~ ~~L~ , -V .~ .... .C 7 R.J. Fisher & Associates, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V Locke Property Company, Inc. NO. 01-5477 CIVIL TERM ORDER OF COURT AND NOW, May 23, 2002, by agreement of counsel, the above-captioned matter is continued from'the May 22, 2002 Argument Court list. Counsel is directed to relist the case when ready. By the Court, G or . H f , P. . Craig A. Diehl, Esquire For the Plaintiff .Alexander Bono, Esquire Frank A. Dante, Esquire For the Defendant Court Administrator ld \ ~RQ1J1`~ ~ • ~ O.tS t e 7 C ~S ~~ 1~~( .n P~c~hon<W~~l ~~y ~, ~~ ~~ `'`, s ' PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY:. Please 1i.st the within matter far the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) R.J. FISHER & ASSOCIATES, INC. (Plaurtiff ) vs. LOCKE PROPERTY COMPANY, INC. (Defendant) No. 01 civil 5477 2001 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Complaint. 2. Identify counsel who will argue case: (a) for plaintiff Craig A. Diehl, Esquire Address: 3464 Trindle Road Camp Hill, PA 17011 (b) -for defendant: Alexander Bono, Esquire/ Frank A. Dante, Esquire Paidress: One Logan Square Philadelphia, PA 19103 3. I wi.71 notify all parties in writing within two days that this case has been listed for argiment. 4. Arrjurtient Court Date: January 8, 2003 Dated: Ial~ l~ai ~...~L Attor y for Plaintiff IN TIIE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., Plaintiff NO: Ol-Civil-5477 v. LOCKS PROPERTY COMPANY, INC., : CIVIL ACTION -LAW Defendant CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date, a true and correct copy of the foregoing document was served upon the opposing parties by way of facsimile and United States First Class Mail, postage prepaid, addressed as follows: Alexander Bono, Esquire Frank A. Dante, Esquire One Logan Square Philadelphia, PA 19103-6998 Fax Number: (215) 569-5555 Date: ~ ©,~ LAW OFFICES OF CRAIG A. DIEHL By: teph e A. Per ,Leg Secret 3464 Trindle Road Camp Hill, PA 17011 (717)763-7613 v ~. -~ `"'Sx~i~as o-u~.~Ym .i,a~.~,~eeraau~ep5~" i r () ~ == c ~.3 -viz: ~ -- m n z~; r.-> - ` z c- ~ c ~t cam' __;~ C am' -7 --i?. y ~ ~e ;': Z ~~ R.]. FISHER & ASSOCIATES, IN THE COURT OF COMMON PLEAS OF INC. :CUMBERLAND COUNTY, PENNSYLVANIA V. LOCKE PROPERTY COMPANY, N0. 2001-5477 CIVIL INC. IN RE: DEFENDANT'S PRELIMYNARY OBJECTIONS BEFORE BAYLEY. GUIDO.77. ORDER OF COURT AND NOW, this 8T" day of JANUARY, 2003, defendant's preliminary objections are DENIED. It is directed to file an answer within twenty (20) days. By Edward E. Guido, J. Craig A. Diehl, Esquire ,c.~~ ,mu.e~ i- a3 - b ~ Alexander Bono, Esquire Frank A. Dante, Esquire ~""" :sld . 141 1 p 1 '~ 4{ .. ^. I.~ -'L J_'.. ~__ ~ ~ To Plaintiffs Yau are hereby notified to plead to the enclosed New Matter and Counterclaims within twenty (20) days from service hereof, or a default judgment maybe entered against you. Frank A. Dante, Esquire Attorney far Defendant BLANK ROME LLP By: Alexander D. Bono, Esquire Frank A. Dante, Esquire Identification Nos. 25845/87888 One Logan Square Philadelphia, PA 19103 215-569-5500 Attorneys for Defendant Locke Property Company, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., NO. 01-5477 Plaintiff, CIVIL ACTION -LAW v. LOCKE PROPERTY COMPANY, INC., Defendant. DEFENDANT LOCKE PROPERTY COMPANY, INC.'S ANSWER NEW MATTER AND COUNTERCLAIMS 1. ADMITTED upon information and belief. 2. ADMITTED. It is admitted that Locke Property Company, Ina ("LPC") is a Massachusetts corporation, with its principal office address at 46 Central Street, Manchester-by- the-Sea, Massachusetts 01944. I ] 6012.0060t/21112117v2 DENIED. The averments set forth in this paragraph constitute a conclusion of law to which no response is required. 4. DENIED. After reasonable investigation, LPC lacks knowledge or information to form a belief as to the truth of the allegations in paragraph 4. DENIED. It is specifically denied that a written agreement was executed between LPC and Plaintiff for the reasons alleged in the counterclaims, particularly ¶¶19-38.2 below, which are incorporated. 6. DENIED. After reasonable investigation, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the averments set forth in this paragraph. 7. DENIED. It is specifically denied that Defendant LPC owes Plaintiff any amount for the reasons stated in the counterclaims, particularly ¶¶19-38.2 below, which are incorporated. 8. DENIED. It is specifically denied that there is a written agreement; that LPC has a delinquent balance with Plaintiff; and that any alleged interest would accrue at the rate of 1'/z% per month on any alleged delinquent balance. LPC incorporates ¶¶19-38.2 below. 9. DENIED. It is specifically denied that Plaintiff has a right to any payment from LPC, and it is further denied that LPC owes Plaintiff any money. It is admitted only that Plaintiff has requested payment from LPC and from LPC has refused to pay. LPC incorporates ¶¶19-38.2 below. WHEREFORE, LPC requests that this Honorable Court enter judgment in its favor and against Plaintiff. 2 116012.00601/21112117v2 NEW MATTER AFFIRMATIVE DEFENSES AFFIRMATIVE DEFENSE NO.1 10. The Complaint fails to state a claim upon which relief can be granted. AFFIRMATIVE DEFENSE NO. Z 11. The Complaint is barred, in whole or in part, by the doctrine of estoppel. AFFIRMATIVE DEFENSE NO. 3 12. The Complaint is barred, in whole or in part, by the doctrine of unjust enrichment. AFFIRMATIVE DEFENSE NO.4 13. The Complaint is barred, in whole or in part, by plaintiff's unclean hands. AFFIRMATIVE DEFENSE NO. 5 14. The Complaint is barred, in whole or in part, by the doctrine of waiver. AFFIRMATIVE DEFENSE NO. 6 15. The Complaint is barred, in whole or in part, by the defense of failure of consideration. AFFIRMATIVE DEFENSE NO. 7 16. The Complaint is barred, in whole or in part, because the writing attached to the Complaint as Exhibit "A" was never accepted by LPC. AFFIRMATIVE DEFENSE NO. 8 17. A counter-offer was made by LPC when it signed the writing attached to the Complaint as Exhibit "A" on the condition that it was "to be replaced with Standard/Form ASCE/Contract Document." AFFIRMATIVE DEFENSE NO. 9 18. Plaintiff never performed the conditions as required by the counter-offer. 116012.0060 1/2 1 1 12 1 17v2 COUNTERCLAIM FACTS 19. LPC is a real estate developer, which at all material times had contract rights to and was ready, willing and able to proceed in the process of acquiring and developing an approximately 48.5 acre parcel of unimproved real estate property called "The Golden Triangle" located in Silver Spring Township, Cumberland County, Pennsylvania ("The Golden Triangle Project"). 19.1 The Golden Triangle Property was owned by Alex A. DiSanto, Jr., Julia Szabo, and Mark DiSanto (the "Trustees") who obtained the property the 1993 Irrevocable Trust left by their parents, Alex and Dora DiSanto, and by Mark X. DiSanto, John M. DiSanto, and John DiSanto, who obtained their ownership from their parents, Alex and Dora DiSanto. 20. At all material times, Fisher, Inc. held itself out as having professional engineering and planning expertise, particularly in land planning, site design, construction and landscape architecture, and with particular familiarity with Silver Spring Township, Cumberland County, Pennsylvania and The Golden Triangle Project. 21. At all material times, Robert J. Fisher, PLS., PE ("Fisher') held himself out as a licensed engineer with professional engineering and planning expertise, particularly in the areas of land planning, site design, construction, landscape architecture, and with particular familiarity with Silver Spring Township, Cumberland County, Pennsylvania and The Golden Triangle Project. 22. On or about July 10, 2000, LPC made a written Agreement of Purchase and Sale with the Trustees and Mark X. DiSanto and John M. DiSanto ("P&S Agreement"). 116012.0060 1/2 1 1 1 2 1 17x2 22.1 By the P&S Agreement (§§1 and 2), the Trustees, Mark X. DiSanto and John M. DiSanto agreed to sell The Golden Triangle Project to LPC for $1.5 million. By letter dated November 2, 2000, the parties agreed to reduce the purchase price of the property by up to $250,000.00 because the site costs were higher than originally estimated. 22.2 By the P&S Agreement (§3(a)), LPC made a $60,000 cash escrow deposit for The Golden Triangle Project ("Deposit"). 22.3 By the P&S Agreement (§C(6)and (32) and §3(b)), the Trustees, Mark X. DiSanto and John M. DiSanto agreed with LPC that the balance of the purchase price would be paid on or before the "Closing Date", which was agreed to be thirty (30) days after the "Permit Date", which was agreed to be the date on which LPC received all fmal, permits, licenses and approvals to develop, build, use and operate The Golden Triangle Project, including approvals by the Township of Silver Spring and other governmental authorities having jurisdiction over the Land Development Plan, Preliminary Subdivision Plan and Final Subdivision Plan, and revisions to the flood plain by the Federal Emergency Management Agency ("FEMA"); but in no event more than eighteen months after the P&S Agreement's date. In August, 2001, in recognition of the delays caused by the defendants that are described below, the parties agreed to extend the "Outside Date" until July 10, 2002. 116012.00601/21112117v2 22.4 By the P&S Agreement (§12(b)(vii) and (xii)), the Trustees, Mark X. DiSanto and John M. DiSanto represented that assignment of all development plans, land development plans, preliminary subdivision plans, final subdivision plans, stmctural reviews, architectural drawings and engineering, soil, seismic, geologic, environmental and architectural reports, studies and certificates and other documents conceming The Golden Triangle Project ("Plans") to LPC did not require the consent of third parties, and that they had good and marketable title to such Plans, which were fully paid for and free and clear of any claims, disputes, liens or encumbrances. 22.5 By the P&S Agreement (§12(d)(i) and (ii)), the Trustees and Mark X. DiSanto and John M. DiSanto represented that: (i) they would use due diligence and best efforts to keep in full force and effect the terms of a Settlement Agreement made June 8, 1994 by and between Alex A. DiSanto and Dona L. DiSanto, TCC, and the Township of Silver Spring ("1994 Settlement Agreement"), comply with governmental regulations and keep LPC advised concerning developments about the 1994 Settlement Agreement; (ii) they would not change the terms of the 1994 Settlement Agreement or enter into any contracts, restrictions or obligations affecting The Golden Triangle Project without LPC's prior written consent; (iii) they would not file any development plans, subdivision plans or other plans with any govenunental authorities concerning The Golden Triangle Project, without LPC's prior written consent; and (iv) they would not seek zoning approvals or change in variances regarding The Golden Triangle Project, without LPC's prior written consent. 116012.00601/21112117v2 22.6 By the P&S Agreement (§ 12(d)(iii)), the Trustees, Mark X. DiSanto and John M. DiSanto represented that they: (i) would fully cooperate regarding LPC's plans for The Golden Triangle Project and would not hinder, delay or impair LPC from filing or obtaining any and all project approvals regarding plans for The Golden Triangle Project; (ii) would take no action to adversely affect or delay or increase LPC's cost of The Golden Triangle Project; and (iii) would not modify the Development Plan, the Preliminary Subdivision Plan, or the Final Subdivision Plan or any uses planned for related property so as to adversely affect or delay or increase LPC's costs regarding The Golden Triangle Project. 22.7 By the P&S Agreement (§24), defendants Trustees, Mark X. DiSanto and John M. DiSanto agreed that they would: (i) not modify the Land Development Plan, the Preliminary Subdivision Plan, the Final Subdivision Plan or the 1994 Settlement Agreement without LPC's prior written consent; (ii) fully support and join in any modification to those plans and any related project approvals required by LPC in connection with LPC's plans for the project; (iii) execute and deliver any amendments to pending plans relating to the filing and approval that LPC may seek to develop, build or operate the project; and (iv) fully support LPC in seeking project approvals. 116012.00601/21112117v2 23. LPC was introduced to Fisher, Inc. and Fisher by Mark X. DiSanto as exceedingly competent, professional and expert in providing land planning, design, construction, landscape architecture, engineering and planning services, and as having direct experience in the design and planning of The Golden Triangle Project that previously had been submitted to Silver Spring Township by TCC, by or on behalf of the DiSanto Parents as the prior owners of The Golden Triangle Project (the "Prior Plans"), and had been rejected by Silver Spring Township. 24. In or about August 2000, LPC's President, William E. Locke, Jr. ("Locke"), met with Fisher, Inc. and Fisher. 24.1 Fisher, on behalf of himself and Fisher, Inc., promoted the professional expertise of himself and of Fisher, Inc. concerning engineering and planning, particularly land planning, architecture and engineering services generally, and professional services that had previously been provided to TCC and the DiSanto Parents in the Prior Plans concerning The Golden Triangle Project and that could be provided to LPC concerning The Golden Triangle Project. 24.2 Fisher, Inc. and Fisher represented that they had already prepared the Prior Plans for TCC and the DiSanto Parents regarding subdivision and land development of The Golden Triangle Project, and that these Prior Plans could be "updated" for LPC's use in acost-effective, efficient manner by Fisher, Inc. and Fisher, and that such "updating" could result in substantial savings for the cost of professional services that are normally provided in such development projects. 116012.00601/21112117v2 24.3 Fisher, Inc. and Fisher represented that, as part of their scope of work, their professional services would adhere to the teens of the 1994 Settlement Agreement, in which the Township of Silver Spring agreed to the land development and subdivision of The Golden Triangle property on specified terms; and that they would incorporate those terms and comments from the Township into the "updating" of the Prior Plans. 25. Based on the representations of Fisher, Inc. and Fisher, in or about August 2000, LPC was induced to hire Fisher, Inc. and Fisher to perform professional land planning, architecture and engineering services concerning The Golden Triangle Project, and Fisher, Inc. and Fisher orally agreed to provide those services to LPC ("Oral Professional Services Agreement"). 25.1 In this Oral Professional Services Agreement, it was expressly agreed that Fisher, Inc. and Fisher would efficiently and economically provide professional services by, among other things, "updating" the existing Prior Plans concerning subdivision and development of The Golden Triangle Project that Fisher, Inc. and Fisher had prepared, by incorporating changes that adhered to the 1994 Settlement Agreement and the Township of Silver Spring's comments. 26. In or around January, 2000, LPC's Locke advised Fisher and Fisher, Inc. that LPC's financing of The Golden Triangle Project by investors, such as Prudential Real Estate Investors, Inc. and others, would be conditioned on, among other things, the engagement of a professional service provider for architectural, planning and engineering services pursuant to a contract with terms in a standard AIA, ASCE or EJCDC format, and proof of appropriate professional liability errors and omissions insurance coverage. 116012.00601 /2ll 12ll 7v2 26.1 Fisher, on behalf of himself and Fisher, Inc., represented that Fisher, Inc. would provide both the contract in the appropriate standard term format, and proof of adequate professional liability insurance coverage. 27. Fisher, Inc. and Fisher agreed, in or around January 2001, to engage in the conduct described below regarding the redesign of the Prior Plans to incorporate changes that would harm LPC and accrue to the benefit of TCC, Mark X. DiSanto, John M. DiSanto and the Trustees, and the submission of plans to the Township of Silver Spring, without LPC's approval or consent. 27.1 Fisher, Inc. and Fisher knowingly and intentionally concealed from LPC their plan and agreement to engage in the conduct described below, and the details of their plan and agreement are particularly within their own knowledge. 28. Based on the Oral Professional Services Agreement, and even though Fisher, Inc. and Fisher had not prepared a written contract with terms in the standard term AIA, ASCE or EJCDC format, in or about February 2001, Fisher, Inc. and Fisher began performing professional services for LPC concerning The Golden Triangle property. 29. Even though Fisher, Inc. and Fisher knew that LPC needed a contract with terms in the standard term AIA, ASCE or EJCDC format in order to satisfy lending and investment requirements, and even though Fisher, Inc. and Fisher had represented that they would prepare a contract with such terms, Fisher, Inc. and Fisher instead sent LPC a "proposal" for "professional engineering and planning services relative to The Golden Triangle project in Silver Spring Township, Cumberland County, Pennsylvania", which was dated May 1, 2000 ("ProposaP'). 10 116012.00601/21112117v2 29.1 The Proposal expressly reiterated the oral representation that the professional services would involve "updating the land development and subdivision plan fora 400,000 sq. ft. warehouse as required in the June 81h 1994 Settlement Agreement, coordination and assistance to HRG regarding the FEMA flood plain boundary, consultations and coordination regarding the Jimmy George tract for utility connections and preparation of an overall subdivision plan to subdivide the warehouse tract from other lands of Triple Crown Corporation and provide for public access roads and utilities to the tract " (emphasis added) 29.2 On March 23, 2001, LPC signed the Proposal on the express counter-offer condition that the Proposal had "to be replaced [by] standard form ASCE/contract documents.", as agreed in the prior Oral Professional Services Agreement. 30. LPC, through its president, Locke, repeatedly advised Fisher, Inc. and Fisher of the need for them to satisfy the condition of providing a written contract with terms in the standard AIA, ASCE or E7CDC format. 30.1 In Apri12001, LPC again notified Fisher, Inc. and Fisher of the requirement of such a contract in order to satisfy Prudential's lending requirements. 31. Given the failure of Fisher, Inc. and Fisher to prepare and provide a written contract with terms in the standard AIA, ASCE or EJCDC format, LPC prepared a contract according to the appropriate standard needed to satisfy its lender and investors, and sent it to Fisher, Inc. and Fisher on May 9, 2001. 11 116012.00601/21112117v2 31.1 Despite LPC's repeated requests concerning the written contract it sent to Fisher, Inc. and Fisher on May 9, 2001, Fisher, Inc. and Fisher ignored requests for a response, and they failed and refused to make the contract in the standard term format as orally agreed, which Fisher, Inc. and Fisher knew was needed by LPC in order to satisfy the lending terms of Prudential to finance the project. 32. Fisher, Inc. and Fisher provided professional services to LPC trader the Oral Professional Services Agreement described above; however, Fisher and Fisher, Inc. were negligent in performing those duties and failed to satisfy the standard of care for professionals providing professional engineering, architecture and planning services. Among the failures of Fisher, Inc. and Fisher were: 32.1 Failure to send to contractors, on a timely basis, copies of plans needed to be used for pricing purposes, and failure to send complete plans to those contractors (Leon Wintenneyer, Inc., R.S. Mowery & Sons, Inc. and Connewago Contractors, htc. [the "Contractors"]); 32.2 Failure to prepare a complete and accurate schedule and, after being advised of numerous errors and omissions in a proposed schedule, failing to update or revise the schedule as requested; 32.3 Failure to incorporate into the plans the Township of Silver Spring's changes outlined in the 1994 Settlement Agreement; 12 itwiz.oo6ovz~i~2ii~Wz 32.4 Without notice to or discussion with LPC, making material changes to the plans that were outside the scope of the Settlement Agreement, including the location of an entrance driveway and size of the detention basin, and adding a new detention basin on the South side of the building -all of which increased costs and harm to LPC but benefited the Trustees, Mark X. DiSanto and John M. DiSanto, who had agreed to sell The Golden Triangle Project to LPC, owned adjacent land, and had an existing relationship with Fisher, Inc. and Fisher through TCC and the DiSanto Parents; 32.5 Advising LPC that unauthorized work would not be removed from the plans without the approval of Mark X. DiSanto; 32.6 Failure to prepare a complete, organized and professional report outlining compliance with and the status of twenty-two comments made by the Township of Silver Spring; 32.7 Failure to incorporate into plans comments from LPC, made by Locke and its counsel, Jack F. Hurley, 7r., Esquire; 32.8 Failure to outline any and all changes made to the plans beyond those required by the 1994 Settlement Agreement notwithstanding the knowledge that such changes jeopardized the Township's approval of The Golden Triangle Project due to deviations from the 1994 Settlement Agreement, and failure to explain the basis for making such changes, despite repeated requests; 32.9 Failure to meet important project deadlines, including failure to incorporate the Township of Silver Spring's comments and resubmit a complete set of land development and subdivision plans by April 12, 2001; 13 116012.00601/21112117v2 32.10 Failure to keep LPC apprised of progress on The Golden Triangle Project on a timely basis; 32.11 Revision and submissions of plans to the Township of Silver Spring without notice of the revisions to LPC and without authorization from LPC, including refusal to supply to LPC copies of the plans for which the Township required resubmission; 32.12 Failure to secure a quote for errors and omissions insurance coverage despite notice from'LPC that this was a requirement from Prudential; and 32.13 Failure to prepare and provide and enter into a written contract with terms in the standard AIA, ASCE or EJCDC format. 33. In addition to the failures described above, Fisher, Inc. and Fisher made defamatory remarks that were designed to impure the character, business integrity, business acumen and financial ability of LPC. These included: 33.1 In January 2001, Fisher, Inc. and Fisher advised Mark X. DiSanto that The Golden Triangle Project was being held up because LPC had not authorized Fisher to begin work, in order to create the false impression that LPC was unnecessarily delaying the project; 33.2 In or about March 2001, Fisher, Inc. and Fisher sought to create the false impression with Mark X. DiSanto that LPC was unnecessarily delaying the engagement of Herbert Rowland Gtubic, Ina ("HRG") as a FEMA consultant, even thought they knew that HRG was still negotiating a contract, that HRG's proposal was based on the development of two buildings and a plan completely 14 ttwtz.oowvztttnnv2 inconsistent with The Golden Triangle Project plans, and there were efforts to review work done eight years ago regarding the same project by HRG; 33.3 Fisher, Inc. and Fisher informed Mark X. DiSanto that Gannett Fleming was delaying the project when, in fact, they knew that Gannett had been released, had requested information from FEMA, and was waiting for a response; 33.4 Fisher, Inc. and Fisher advised Mark X. DiSanto on several occasions that LPC was impecunious and unable to pay for services that they had rendered. 34. Given the defamatory conduct and professional service failures of Fisher, Inc. and Fisher, LPC terminated the services of Fisher, Inc. and Fisher and sought to engage another firm to provide professional services. 34.1 Fisher, Inc. and Fisher interfered by refusing to permit the proposed successor, Michael J. Brill & Associates ("BrilP'), to use the existing plans or any data from them and threatening to sue Brill if Brill attempted to submit any revised plans based on the plans or data of Fisher, Inc. and Fisher because they owned them and had not been paid for them. 34.2 In seeking to replace Fisher, Inc. and Fisher, LPC requested Mark X. DiSanto to prove that it owned plans or data that Fisher, Inc. and Fisher claimed it owned when it threatened to sue; however, DiSanto failed and refused to give support for their ownership of the plans or data on which Fisher, Inc. and Fisher threatened to sue Brill and delayed providing such information in order to preclude LPC from engaging a successor engineer on a timely basis. 15 1 t 6012.0060 1/2 1 1 12 1 17v2 34.3 LPC also sought to hire another firm, Gannett Flemming, but again was prevented from doing so. 35. The conduct, statements and representations of Fisher, Inc. and Fisher described above, and particularly in paragraphs 24-31.1, were false, deceitful and misleading because Fisher, Inc. and Fisher knew that: 35.1 They did not intend to provide professional services to LPC in a cost-effective manner by "updating" the Prior Plans, but instead intended to benefit themselves and their other clients, all of the defendants, by making changes to the Prior Plans that benefited the defendants and not LPC, and that increased the costs for LPC concerning The Golden Triangle Project; 35.2 They omitted, concealed and failed to disclose that their true loyalty was to the defendants, rather than to LPC, and that they intended to benefit the defendants at LPC's expense; 35.3 They intended to hinder, delay, and prevent LPC's financing of The Golden Triangle Project and interfere with LPC's relationship with Prudential, and other lenders and investors; 35.4 They intended to hinder, delay, and prevent LPC from closing on the acquisition of The Golden Triangle Project under the P&S Agreement; and 35.5 They did not intend to adhere to the 1994 Settlement Agreement or to incorporate changes consistent with the terms of the 1994 Settlement Agreement or incorporate changes and comments from the Township of Silver Spring concerning the 1994 Settlement Agreement; and 16 116012.00601/21112117v2 35.6 They intended to hinder, delay and prevent LPC from incorporating changes consistent with the terms of the 1994 Settlement Agreement and the Township of Silver Spring's comments regarding The Golden Triangle Project. 36. On or about June 7, 2001, the Silver Spring Township Planning Commission met and -given the changes that Fisher, Inc. and Fisher had made to the plans at the direction of Mark X. DiSanto; John M. DiSanto and the Trustees and given their failure to adhere to the 1994 Settlement Agreement -recommended that preliminary subdivision of The Golden Triangle Project be denied because it was inconsistent with the 1994 Settlement Agreement. 37. As a direct and proximate result of defendants' conduct described above, LPC has suffered substantial economic harm, has had its contract and business relationships interfered with by the defendants, and has been prevented from acquiring and developing the unique real property located in The Golden Triangle Project. 38. As a result of the conduct of Fisher, Inc. and Fisher, LPC sought to resolve any outstanding issues between them. 38.1 Unknown to LPC, and while it was negotiating in good faith, and after the Trustees, Mark X. DiSanto and John M. DiSanto had aclrnowledged their delays by agreeing to extend the Outside Closing Date until July, 2002, and while LPC was waiting for the release of the plans by Fisher, Inc. and Fisher, on or about September 20, 2001, Fisher, Inc. and Fisher filed this lawsuit. 38.2 Fisher, Inc. and Fisher concealed this lawsuit from LPC during negotiations, and eventually served it at Locke's home address on Saturday, January 19, 2002. 17 1t6012.00601/21112117v2 COUNT I -Fraud, Deceit and Misrepresentation (LPC x Fisher, Inc.) 39. Paragraphs 19 through 38.2 of LPC's New Matter are re-alleged and incorporated. 40. This Count charges Fisher, Inc. with fraud against LPC by engaging in false, deceitful and misleading course of conduct that was designed and intended to deceive LPC and to fraudulently induce LPC to agree to engage Fisher, Inc. 41. The false, deceitful and misleading conduct of Fisher, Inc. described above and in making the fraudulent representations described above, which they knew to be false, or which they made in reckless disregard of the truth, and in continuing their conduct interfering with LPC concerning The Golden Triangle Project, constituted fraud and deceit. 42. LPC detrimentally relied in good faith on the conduct of Fisher, Inc. described above without knowledge of or reason to know of such conduct, which allowed Fisher, Inc. to defraud LPC. 43. LPC has been damaged as a direct and proximate result of the false, misleading and deceptive course of conduct and misrepresentations of Fisher, Inc. described above. 44. The conduct of Fisher, Inc. was so outrageous, wanton and deviant from the norms of acceptable conduct, and so malicious, that punitive damages are warranted. WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted by law. 18 116012.00601/21112117W1 COUNT II -Negligent Misrepresentation (LPC v. Fisher. Inc.l 45. The allegations of paragraphs 19 through 44 above are re-alleged and incorporated. 46. This Count charges Fisher, Inc. with negligent misrepresentation. 47. Fisher, Inc. at all material times had a pecuniary interest to supply the information and to engage in the conduct described above, failed to exercise reasonable care and competence in communicating information, and intended to induce LPC to hire it and to rely on the foregoing conduct. 48. LPC justifiably relied on the information, continuing conduct, and misrepresentations of Fisher, Inc. described above. 49. By the foregoing, Fisher, Inc. is liable to LPC for its negligent misrepresentations and for all resulting damages to LPC. 50. LPC has been damaged as a direct and proximate result of its reliance on the negligent misrepresentations of Fisher, Inc. WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,0000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted by law. COUNT III - Malpractice (LPC v. Fisher, Inc.) 51. The allegations of paragraphs 19 through 50 above are re-alleged and incorporated. 52. This Count charges Fisher, Inc. with professional malpractice. 53. Fisher, Inc. owed a duty of professional care in performing the professional services described above. 19 ~ t6mz.oo6o~ni ~ iu n~z ~~_~~,~~ 54. Fisher, Inc. breached their duty of care that they owed to LPC in performance of the services described above. 55. As a direct and proximate result of the professional malpractice of Fisher, Inc. as described above, LPC has been damaged. WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted bylaw. COUNT IV -Breach of Covenant of Good Faith and Fair Dealings (LPC v. Fisher, Inc.) 56. The allegations of paragraphs 19 through 55 above are re-alleged and incorporated. 57. This Count charges Fisher, Inc. with breach of their implied covenant of good faith and fair dealing. 58. The conduct described above constitutes breach of an implied covenant of good faith and fair dealing that Fisher, Inc. owed to LPC, and they have caused damage to LPC as a result. WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted bylaw. COUNT V - Tortious Interference with Contract and Prospective Contract (LPC v. Fisher, Inc.) 59. The allegations of paragraphs 19 through 58 above are re-alleged and incorporated. 20, . 116012.00601/21112117v2 60. This Count charges Fisher, Inc. with tortious interference with contracts and prospective contracts between LPC and others, including Mark X. DiSanto, John M. DiSanto, the Trustees, Brill, Gannett Flemming, Prudential and the Contractors, concerning The Golden Triangle Project. 61. As described above, LPC had contracts and prospective contractual relationships concerning The Golden Triangle Project, and Fisher, Inc. intended to harm LPC by interfering with and preventing such contractual relationships from occurring, even though they lacked any privilege or justification in doing so. 62. LPC has been damaged as a direct and proximate result of the conduct of Fisher, Inc. WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted by law. COUNT VI -Breach of Contract (LPC v. Fisher, Inc.) 63. The allegations of paragraphs 19 through 62 above are re-alleged and incorporated. 64. This Count charges Fisher, Inc. with breach of the Oral Professional Services Agreement. 65. By the conduct described above, Fisher, Inc. have breached and failed to fulfill their obligations under the Oral Professional Services Agreement even though LPC has satisfied all of its obligations. 21 ll 6012.00601 /2ll 12ll 7v2 66. LPC has been damaged by the breach of Fisher, Inc. and will suffer irreparable harm if the breach continues because it will prevent LPC from developing the unique property that is The Golden Triangle Project. WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted bylaw. COUNT VII -Defamation (LPC v. Fisher, Inc.) 67. The allegations of paragraphs 19 through 66 above are re-alleged and incorporated. 68. This Count charges Fisher, Inc. with defamation. 69. The conduct of Fisher, Inc. described above is capable of defamatory meaning with respect to LPC because it impunes LPC's business representation and falsely alleges breach of agreements. 70. The recipients of the information described above understood and appreciated its defamatory meaning. 71. Fisher, Inc. acted maliciously and attempted to defame LPC and to damage its business reputation. 72. The foregoing defamatory conduct was not protected by privilege, and was so outrageous, wanton, unconscionable and deviant from acceptable norms of conduct that punitive and exemplary damages are warranted to punish Fisher, Inc. and to make an example of them. 73. LPC has suffered "actual harm" from the defamation in an amount to be proven at trial. 22 116012.00601/21112117v2 WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted by law. COUNT VIII -Declaratory Judgment (LPC v. Fisher, Inc.) 74. Pazagraphs 19 through 73 above are re-alleged and incorporated. 75. This Count seeks declaratory judgment because an actual, present and substantial controversy exists between LPC and Fisher, Inc. concerning the Oral Professional Services Agreement. 76. Alternatively, the Oral Professional Services Agreement should be declared void and unenforceable against LPC given the conduct of Fisher, Inc. described above, including the fraudulent inducement. WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted bylaw. Dated: February 4, 2003 't ;lFr t~. Dante (Pa. Id. 87888) BL K ROME LLP V On Logan Square Phi elphia, PA 19103 215-569-5500 215-569-5555 (fax) Attorneys for Defendant, Locke Property Company, Inc. 116012.00601/211121172 23 {_ ~ CERTIFICATE OF SERVICE It is certified that on February 4, 2003 a copy of Locke Property Company, Inc.'s Answer, New Matter and Counterclaim was served by facsimile and first class mail upon: Craig A. Diehl, Esquire Law Offices of Craig A. Diehl 3464 Trindle Road Camp Hill, PA 17011-4436 °~'_` ~' FRANK A. DANTE 24 17 6012.00601/21112ll 7v2 ~, I, WtlHam 8. Locke, 7r., I'rsoidaoat of LacJce Property t..ompany, Inc-, hereby verify that Y am atWiorized to give tlyia vorifiatition oa behalf of Locke Fmpaty company aad that the 13tcta amtainad iA the thre~olnh Anevvet, New Matter aad Crnmtetclaim ere true and eaarect m the bast of my koawledge, inSOxeeatioa sad betieL I make Chia vari6atatian wbjeet to the peaahioa of IS Pa. G5.4904, ralatiai to unswom f~alsiHcetioa. Deter: Febnury 4, 2403 ~^ ' E '~` ~~- WiAiatu S. Locke. Jr. ~tso~saosovu~uu~n `s c_= r' ~- ~:~;: ..- r i'7 ~7 -' -; (,? :.J r ~ ..'7 Cb r-, -; ,- =, ~`>, '' ==~i ri ~~ -~[ F7 rv du ffi:~M...re.ra: PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAI~ID COUNTY Please list the following case: (Check one) ( ) for JURY trial at the next term of civil court. ( X ) for trial without a jury. ----------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) (X) Civil Action - Law ( ) Appeal from Arbitration R. J. FISHER & ASSOCIATES, INC., (Plaintiff) vs. LOCKE PROPERTY COMPANY, ING., (Defendant ) vs. (other) The trial list will be called on and AllQllSt 12, 2003 Trials commence on September 8, 2003 Pretrials will be held on August 20, 2003 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 5477 Civil X~i 2001 Indicate the attorney who will try case for the party who files this praecipe: Craig A. Diehl, Esquire/Law Offices of Craig A. Diehl Indicate trial counsel for other parties if known: Alexander D. Bono, Esquire, and Frank A. Dante, Esquire/Blank Rome LLP This case is ready for trial. Date: June 20, 2003 Signed: ~,~~~ Print Name: Craig A. Diehl, Esquire Attorney for: Plaintiff ~ ~ ~ .nom ~ ~~ ~ N „~-- ~ `' w ~'~ ~ ~r; ~ F '~c~ ~~ w ;~~'' ~ ~ n ~ c,a c 6~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. J. FISHER & ASSOCIATES, INC., NO.O1-5477 Plaintiff CIVIL ACTION -LAW v. LOCKE PROPERTY COMPANY, INC., Defendant CERTIFICATE OF SERVICE On this 20th day of June, 2003, I, the undersigned, hereby certify that I have served a true and correct copy ofthe PRAECIPE FOR LISTING CASE FOR TRIAL by depositing such in the regular U. S. Mail, postage prepaid, addressed as follows: Alexander D. Bono, Esquire Frank A. Dante, Esquire BLANK ROME LLP One Logan Square Philadelphia, PA 19103 LAW OFFICES OF CRAIG A. DIEHL Helen E. Rasmussen, Legal Assistant 3464 Trindle Road Camp Hill, PA 17011-4436 (717)763-7613 O ~t ~ _~ ~~Cii ~ ~~: [J G7 U ~ G ' ~~ CS'1 ;~ W ~' ~ { E.) - -{ ~~ .. .. , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. J. FISHER & ASSOCIATES, INC., NO. 01-5477 Plaintiff CIVIL ACTION -LAW v. LOCKS PROPERTY COMPANY, INC., Defendant PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIMS AND NOW COME5, R. J. Fisher & Associates, Inc. ("Fishex, Inc."), by and through its counsel, Law Offices of Craig A. Diehl, and files its Answer to the new matter and counterclaims as follows: 10. Denied. The averment states a conclusion of law to which no responsive pleading is required. 11. Denied. The averment states a conclusion of law to which no responsive pleading is required. 12. Denied. The averment states a conclusion of law to which no responsive pleading is required. 13. Denied. The averment states a conclusion of law to which no responsive pleading is required. 14. Denied. The averment states a conclusion of law to which no responsive pleading is required. 1 w _ ~, ~ ~. . 15. Denied. The avennent states a conclusion of law to which no responsive pleading is required. 16. Denied. The averment states a conclusion of law to which no responsive pleading is required. 17. Denied. The averment states a conclusion of law to which no responsive pleading is required. 18. Denied. The averment states a conclusion of law to which no responsive pleading is required. 19. Denied. It is denied that LPC was at all material times ready, willing, and able to proceed in the process of acquiring and developing a 48.5 acre parcel of unimproved real estate called "The Golden Triangle". LPC failed to communicate or provide necessary information to Fisher, lnc. for submission deadlines to the local municipality. 19.1 Admitted. 20. Admitted. 21. Admitted. 22. Admitted. 22.1 Admitted. 22.2 Admitted. 22.3 Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averment. Fisher, Inc. further denies that it caused any alleged delays resulting in an extension of the "Outside Date". 2 22.4 Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averment. 22.5 Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averment. 22.6 Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averment. 22.7 Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averment. 23. Admitted. 24. Denied. The first meeting between LPC's President, William E. Locke, Jr. ("Locke") and Fisher, Inc. was in or about April, 2000. 24.1 Denied in Part, Admitted in Remainder. It is denied that Fisher, Inc. or Robert J. Fisher, individually ("Fisher"), promoted the professional services of architecture. It is further denied that Fisher, in an individual capacity, promoted himself, as he was at all times working as an employee of Fisher, Inc. The remaining averments are admitted. 24.2 Admitted in Part, Denied in Remainder. It is admitted that Fisher, Inc. had already prepared plans for TCC. The subdivision and land development plans were updated based on a written agreement with Locke. (See written contract.) It is further denied that Fisher, Inc. or Fisher represented that substantial savings would occur as a written contract explicitly set forth the fees to be charged for professional services. Lastly, at no time did Fisher act in an individual capacity, but as an employee of Fisher, Inc. 3 24.3 Denied in Part, Admitted in Remainder. It is denied that Fisher, individually, representedthe averments set forth. It is admittedthat Fisher, Inc. representedthat its services would adhere to the terms of the 1994 Settlement Agreement. It is believed that Fisher, Inc. did update the plans in adherence to the terms of the 1994 Settlement Agreement. 25. Denied. Fisher, Inc. sent LPC a written proposal dated May 1, 2000 and began consulting with Mr. Locke on site plan revisions and options in July, 2000 through December, 2000. These professional services are evidenced by two invoices numbered 3384 and 3529. During the aforementioned time frame, LPC was considering several plan options with the Township and was contemplating how the plans were to be revised. Actual revisions to the subdivision and land development plans began upon receipt of LPC's deposit of $3,000.00 on February 23, 2001 and a simultaneous payment of invoices 3384 and 3529. LPC also promised a signed contract when the deposit was received but the executed contract did not come until March 23, 2001. 25.1 Denied in Part, Admitted in Part. It is denied that an Oral Professional Services Agreement exists. A written contract exists setting forth the scope of work and renumeration for professional services to be received. It is admitted that Fisher, Inc. agreed to perform professional services as described in the written contract dated March 23, 2001. 26. Denied. LPC's Locke did not advise Fisher, Inc. or Fisher of the requirement for professional liability en•ors and omissions insurance coverage until Fisher, Inc. requested that past due invoices be paid in April, 2001. LPC's Locke discussed an ASCE contract with Fisher, Inc. when he signed the written agreement on March 23, 2001 at which time LPC's Locke said he would provide a copy of a sample contract for Fisher, Inc.'s review. 4 26.1 Denied. Fisher and Fisher, Inc. never represented that Fisher, Inc. would provide an ASCE, AIA, or EJCDC contract and adequate professional liability insurance coverage. In fact, it was not until a May 9, 2001 memo was received by Fisher, Inc. that it first became aware of certain insurance coverage requirements. However, at this time, Fisher, Inc. had already completed approximately 90.0% of its submissions for the municipality. Fisher, Inc. and Fisher also never agreed that the written contract already in effect would be modified. 27. Denied. Fisher, Inc. and Fisher never agreed with anyone to engage in conduct that would harm LPC. 27.1 Denied. Fisher, Inc. and Fisher have no knowledge of intentionally concealing from LPC any information that may harm LPC. 28. Denied. There was a written Agreement entered into by LPC and Fisher, Inc. LPC expressly directed Fisher, Inc. to perform services and how to perform certain plan issues on its behalf. 29. Denied. Fisher, Inc. or Fisher never knew LPC needed a contract with terms in standard AIA, ASCE, or EJCDC language in order to satisfy lending and investment requirements until Fisher, Inc. demanded payment for services performed. 29.1 Admitted. 29.2 Denied. On March 23, 2001, LPC executed the proposal creating a binding, written contract. LPC also indicated that it would supply a sample agreement for Fisher, Inc.'s consideration consistent with the executed proposal. 5 30. Denied. LPC never supplied a sample agreement to Fisher, Inc. until May 9, 2001 and this sample agreement totally changed the scope of work previously agreed to by the executed written contract. Fisher, Inc. offered to meet with LPC to discuss these issues, however, LPC did not return phone calls and failed to show up at a scheduled meeting to discuss contract issues. 30.1 Denied. In May, 2001, was the first time LPC informed Fisher, Inc. about the contract requirements for his financing. However, 90.0% of Fisher, Inc.'s work had already been performed. 31. Denied. It is admitted that a proposed Agreement was mailed to Fisher, Inc. on May 9, 2001. However, LPC refused to return phone calls to resolve any contract issues. 31.1 Denied. LPC failed to communicate with Fisher, Inc. to resolve contract issues. Furthermore, 90.0% of Fisher, Inc.'s work was complete when it found out about LPC's alleged financing requirements. 32. Denied. There was a written Agreement that Fisher, Inc. adhered to. By way of further answer, Fisher, Inc. and Fisher deny that it was negligent in performing its duties. Fisher, Inc. and Fisher do not even perform architecture services. 32.1 Denied. Plans were sent after proper addresses were provided to Fisher, Inc. 32.2 Denied. Schedule provided by Fisher, Inc. to LPC was adequate and no problems were noted until the demand for payment of outstanding invoices occurred. 32.3 Denied. The plans were revised in accordance with the 1994 Settlement Agreement and some instructions from LPC. 6 32.4 Denied. All changes were reviewed with LPC including the driveway and stormwater pond. 32.5 Denied. LPC requested that grading on the lots along Carlisle Pike not be shown on the plans, but this grading was required for Township and County Conservation District approvals. 32.6 Denied. A transmittal letter was prepared which outlined the twenty-two comments made by Silver Spring Township. 32.7 Denied. Fisher, Inc. and Fisher are unaware of plan comments from LPC or its counsel that were not addressed. 32.8 Denied. There were no changes in Fisher, Inc. or Fisher's opinion to the plans outside the terms of the 1994 Settlement Agreement. 32.9 Denied. All deadlines were met. 32.10 Denied. LPC would not return phone calls so if LPC was not informed, it was due to its own fault. 32.11 Denied. LPC refused to timely communicate with Fisher, Inc. which jeopardized the project. Since LPC was not paying for services performed, Fisher, Inc. held in its possession the revised plans until payment was to be received. 32.12 Denied. LPC never advised Fisher, Inc. or Fisher of the requirement for errors and omissions insurance until Fisher, Inc. requested that past due invoices be paid. 32.13 Fisher, Inc. and Fisher never represented that Fisher, Inc. would provide a written contract with terms in the standard AIA, ASCE, or EJCDC format. 7 33. Denied. 33.1 Admitted in Part, Denied in Remainder. It is admitted that Fisher, Inc. advised Mazk DiSanto that the project was being held up because no deposit was received in January, 2001 and no executed contract had been received by Fisher, Inc. It is denied that this conversation adversely impacted LPC. 33.2 Denied. Fisher, Inc. had requested copies of the FEMA work to assist it with the Land Development Plan so as to not duplicate efforts and make it more cost effective for LPC. 33.3 Denied. Fisher, Inc. had requested copies of the FEMA work to assist it with the Land Development Plan so as to not duplicate efforts and make it more cost effective for LPC. 33.4 Denied. Fisher, Inc. informed Mark DiSanto that it was not going to the Township meeting unless payment was received. 34. Denied. It is strictly denied that Fisher, Inc. or Fisher used any defamatory conduct toward LPC or performed its duties in a negligent manner. 34.1 Denied. Fisher, Inc. and Fisher never threatened to sue Brill. Fisher, Inc. did refuse to turn over the engineering work until it was paid. 34.2 Denied. Fisher, Inc. and Fisher never threatened to sue Brill. Fisher, Inc. did refuse to turn over the engineering work until it was paid. 34.3 Denied. Fisher, Inc. and Fisher aze without knowledge or information sufficient to form a belief as to the truth of the averment. 35. Denied. 8 35.1 Denied. Fisher, Inc. was working for LPC and believes all its services were done in the best interests of LPC. 35.2 Denied. Fisher, Inc. was working for LPC and believes all its services were done in the best interests of LPC. 35.3 Denied. Fisher, Inc. was working for LPC and believes all its services were done in the best interests of LPC. 35.4 Denied. Fisher, Inc. was working for LPC and believes all its services were done in the best interests of LPC. 35.5 Denied. Fisher, Inc, believes that the services rendered were in adherence to the 1994 Settlement Agreement. 35.6 Denied. Fisher, Inc. believes that the services rendered were in adherence to the 1994 Settlement Agreement. 36. Denied. The Planning Commission was not in aposition to deal with all the legal and technical aspects of the Plan and denied it so the Board could decide. 37. Denied. Fisher, Inc. and Fisher are without knowledge or information sufficient to form a belief as to the truth of the averment. 38. Denied. LPC prepared a proposed settlement agreement that was unacceptable to Fisher, Inc. 38.1 Denied. LPC should have known that a lawsuit was forthcoming since it failed to pay for invoices for services performed that benefitted LPC. It is admitted that Fisher, Inc. filed suit against LPC. 9 38.2 Denied. LPC should have known that a lawsuit was forthcoming since it failed to pay for invoices for services performed that benefitted LPC. It is admitted that Fisher, Inc. filed suit against LPC COiJNT I -Fraud, Deceit and Misregresentation (LPC v. Fisher. Inca 34. Denied. See prior answers to paragraphs 1 through 38. 40. Denied. Fisher, Inc. strictly denies said allegations. A written contract was executed between the parties with engineering services being performed in adherence thereon on behalf of LPC. 41. Denied. Fisher, Inc. strictly denies said allegations. A written contract was executed between the parties with engineering services being performed in adherence thereon on behalf of LPC. 42. Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averments. 43. Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averments. 44. Denied. Paragraph 44 is a conclusion of law to which no answer need to be filed and is thus deemed denied. WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count I of the Counterclaim with prejudice. 10 COUNT II -Negligent Misrepresentation (LPC v. Fisher. Ines. 45. Answers to paragraphs 1 through 44 are incorporated herein by reference as if fully set forth. 46. Denied. Paragraph 46 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 47. Denied. Fisher, Inc, strictly denies said allegations. A written contract was executed between the parties with engineering services being performed in adherence thereon on behalf of LPC. 48. Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averments. 49. Denied. Paragraph 49 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 50. Denied. Paragraph 50 is a conclusion of law to which no answer need to be filed and is thus deemed denied. WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count II of the Counterclaim with prejudice. COUNT III -Malpractice (LPC v. Fisher. Inca, 51. Answers to paragraphs 1 through 50 are incorporated herein by reference as if fully set forth. 11 r 52. Denied. Paragraph 52 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 53. Admitted. 54. Denied. Paragraph 54 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 55. Denied. Paragraph 55 is a conclusion of law to which no answer need to be filed and is thus deemed denied. WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count III of the Counterclaim with prejudice. COUNT IV -Breach of Covenant of Good Faith and Fair Dealings (LPC v. Fisher. Inca 56. Answers to paragraphs 1 through 55 are incorporated herein by reference as if fiilly set forth. 57. Denied. Paragraph 57 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 58. Denied. Paragraph 58 is a conclusion of law to which no answer need to be filed and is thus deemed denied. WHEREFORE, R. 3. Fisher & Associates, Inc. respectfully requests dismissal of Count IV of the Counterclaim with prejudice. 12 f COUNT V - Tortious Interference with Contract and Prospective Contract (LPC v. Fisher, Inca 59. Answers to paragraphs 1 through 58 are incorporated herein by reference as if fully set forth. 60. Denied. Paragraph 60 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 61. Denied. Paragraph 61 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 62. Denied. Paragraph 62 is a conclusion of law to which no answer need to be filed and is thus deemed denied. WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count V of the Counterclaim with prejudice. COUNT VI -Breach of Contract (LPC v. Fisher. Inc.l 63. Answers to paragraphs 1 through 62 are incorporated herein by reference as if fully set forth. 64. Denied. Pazagraph 64 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 65. Denied. Paragraph 65 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 13 r 66. Denied. Paragraph 66 is a conclusion of law to which no answer need to be filed and is thus deemed denied. WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count VI of the Counterclaim with prejudice. COUNT VII -Defamation (LPC v. Fisher. Inca 67. Answers to paragraphs 1 through 66 are incorporated herein by reference as if fully set forth. 68. Denied. Paragraph 68 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 69. Denied. Paragraph 69 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 70. Denied. Paragraph 70 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 71. Denied. Paragraph 71 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 72. Denied. Paragraph 72 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 73. Denied. Paragraph 73 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 14 t WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count VII of the Counterclaim with prejudice. C®UNT VIII -Declaratory Judgment (LPC v. Fisher, Inc] 74. Answers to paragraphs 1 through 73 are incorporated herein by reference as if fully set forth. 75. Denied. Paragraph 75 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 76. Denied. There is no Oral Professional Services Agreement. A written Agreement was executed by both parties. WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count VIII of the Counterclaim with prejudice. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Dated: February 19, 2003 By: ~Q Craig .Diehl, Esquire Attorney ID No. 52801 3464 Trindle Road Camp Hill, PA 17011-4436 (717)763-7613 Counsel for Plaintiff 15 , •. . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. J. FISHER & ASSOCIATES, INC., Plaintiff NO. 01-5477 CIVIL ACTION -LAW v. LOCKE PROPERTY COMPANY, INC., Defendant VERIFICATION I, Robert J. Fisher, President of R. J. Fisher & Associates, Inc., verify that the statements made in the foregoing PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIMS are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. R. J. FISHER & ASSOCIATES, INC. Date: ~- ~ l ~ By: ~~ U ~ Robert J. Fisher, President 7 ~ c '• ` IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. J. FISHER & ASSOCIATES, INC., NO. 01-5477 Plaintiff CIVIL ACTION -LAW v. LOCKE PROPERTY COMPANY, INC., Defendant CERTIFICATE OF SERVICE On this ~ ~/~day of February, 2003, I, the undersigned, hereby certify that I have served a true and correct copy of the foregoing document by depositing such in the regular U. S. Mail, postage prepaid, addressed as follows: Alexander D. Bono, Esquire Frank A. Dante, Esquire BLANK ROME LLP One Logan Square Philadelphia, PA 19103 LAW OFFICES OF CRAIG A. DIEHL .s- By: / Helen E. Rasmussen, Legal Assistant 3464 Trindle Road Camp Hill, PA 17011-4436 (717)763-7613 o ~` 4 ('S ~ i-_ r _ ;~ iC r',- K: ~ -~. R.J. FISHER & ASSOCIATES, IN THE COURT OF COMMON PLEAS OF INC. :CUMBERLAND COUNTY, PENNSYLVANIA V. LOCKE PROPERTY COMPANY, N0. 2001-5477 CIVIL INC. ORDER OF COURT AND NOW, this 21ST day of NOVEMBER, 2003, trial in this matter is continued until FRIDAY, DECEMBER 5, 2003. at 11:00 a.m. If additional time is needed, we will reconvene on TUESDAY. DECEMBER 23, 2003. at 11:00 a.m. in Courtroom # 5. By the Court, Edward E. Guido, J. „C,raig A. Diehl, Esquire 3464 Trindle Road Camp Hill, Pa. 17011 ~bert H. Long, Jr., Esquire One South Market Square P.O. Box 1146 Harrisburg, Pa. 17108 I rm ~`' 1 PAS a'~ ~~-~-~- :sld ~> ~ i r ~ II~~+~'1 ~i~ i ~~V~G3 ~"~~ ~.f ~: ,, ~~~ g~~1 ~~ R.J. FISHER & ASSOCIATES,: IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. LOCKE PROPERTY COMPANY, CIVIL ACTION - LAW Defendant N0. 01-5477 CIVIL TERM IN RE: TRANSCIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDWARD E. GUIDO, J. Cumberland County Courthouse, Carlisle, Pennsylvania on Friday, January 2, 2004, commencing at 1:30 p.m. in Courtroom Number Five APPEARANCES: Craig A. Deihl, Esquire For the Plaintiff Robert R. Long, Jr., Esquire For the Defendant 1 THE COURT: I understand the parties have 2 reached a settlement. 3 MR. LONG: Yes, Your Honor. 4 THE COURT: Do one of you want to articulate 5 it for the record? 6 MR. LONG: I would be happy to, Your Honor. 7 THE COURT: Okay. 8 MR. LONG: Your Honor, the settlement of this 9 instant case is in associa tion with a settlement of a 10 pending action in Dauphin County Court of Common Pleas 11 that's docketed as Mark E. DiSanto, et al. versus Locke 12 Property Company, Inc., an d today the parties have reached 13 settlement; that is, Locke Property and Mr. Fisher of the 14 instant case, on the terms that the escrow monies in issue 15 in the Dauphin County case in the amount of $60,000.00 will 16 be released by the parties in that Dauphin County action. 17 THE COURT: Those parties aren't party to 18 this particular action, so how am I supposed to enforce 19 that? 20 MR. LONG: I think, Your Honor, the best we 21 can do is say that -- we m ake representations to the Court 22 that there have been discu ssions with the DiSantos. 23 THE COURT: But what I'm looking to avoid is 24 -- I don't want another he aring in this case, so I am 25 prepared to enter a judgme nt today either for the Defendant 2 ;. 1 or for the Plaintiff. You tell me what that judgment is 2 going to be, and then this case is done, and you do what you 3 do. You work out the rest of it in the Dauphin County case. 4 MR. LONG: Your Honor -- 5 THE COURT: Because if the settlement falls 6 through, I don't want to schedule another day of hearings 7 here, and I'm prepared to go today. You're talking about 8 making it contingent upon somebody following through with -- 9 this case is several years old already. Okay. We've been 10 round and round and round some more, and I'm not going round 11 anymore on it. 12 MR. LONG: I follow Your Honor, and -- 13 THE COURT: So I'm ending this case today. 14 MR. LONG: Understood. 15 THE COURT: And I'm prepared to enter it as 16 soon as I hear the rest of the testimony. I'm prepared to 17 render a decision, and that decision will then be final. I 18 won't have to hear it ever again. 19 Now, if you want to agree to what decision I'm 20 going to enter, that's all well and good, but somebody has 21 got to be satisfied that whatever agreement you have, you 22 can enforce in Dauphin County if they don't follow through 23 on it. Okay. So do you need a few more minutes? 24 MR. LONG: Yes, if we may. 25 (Whereupon, a recess was taken.) 3 1 MR. LONG: The Court's approach makes 2 practical sense, Yo ur Honor. The one concern that my client 3 had was that a judg ment -- if we were to settle, that a 4 judgment was going to be entered. 5 THE COURT: What I'll do is enter a verdict. 6 I wouldn't enter a judgment. The judgment is taken by Mr. 7 Diehl, and you can certainly agree that the judgment 8 wouldn't be entered for a period of time. 9 MR. DIEHL: That's satisfactory. 10 MR. LONG: That resolves that issue then, 11 Your Honor. 12 THE COURT: So you may want to articulate for 13 the record what the agreement is, so that you may use that 14 in Dauphin County, and then I will enter a verdict that at 15 least resolves this case. And I take it Mr. Locke is not 16 even -- or Mr. Fish er is not even a party to the Dauphin 17 County action? 18 MR. DIEHL: That's correct. 19 THE COURT: You've talked to Mr. DiSanto? 20 MR. DIEHL: We have, through Mr. Fisher. 21 THE COURT: Are you the attorney? 22 MR. DIEHL: I am not counsel, but we have 23 been on the phone w ith Mr. DiSanto. 24 THE COURT: You obviously have no authority 25 to bind Mr. DiSanto or his attorney? 4 r 1 MR. DIEHL: Correct. 2 MR. LONG: They've been -- Mr. Diehl and Mr. 3 Fisher have been an intermediary passing negotiations back 4 and forth between Mr. DiSanto and Mr. Locke, and it was that 5 global resolution that bore on whose responsibility any 6 amount owed to Mr. Fisher was going to be, so we have 7 discussed this and resolve both of these cases recognizing 8 that out of that global settlement an amount of money will 9 be going to Mr. Fisher out of that escrow. 10 THE COURT: Okay. So your client is at least 11 prepared to acknowledge that X amount is owed him, the 12 verdict I'm going to enter right now? 13 MR. LONG: Yes, Your Honor, and that amount 14 will be used from the escrow proceeds. 15 THE COURT: But from your standpoint, from 16 your client's standpoint, is he satisfied that he won't 17 enter judgment on the verdict until that other case is 18 resolved? 19 MR. DIEHL: We would like to put a very quick 20 time frame on that, but, yes, he acknowledges that and 21 agrees to that. 22 THE COURT: Why don't you articulate what the 23 global settlement is, and I'll enter the verdict based upon 24 that, and if you can agree on the number of days that you'll 25 wait before you enter a judgment on the verdict, and do I 5 1 understand that it's not -- if -- is it DiSanto -- if 2 DiSanto backs out of this settlement, then your client is 3 going -- your client has nothing to enforce that because 4 they can't bind DiSanto. 5 MR. LONG: That's why, Your Honor, with 6 respect to the verdict an d Mr. Diehl and Mr. Fisher's 7 agreement that that verdi ct will be enforced only on the 8 terms that we understand the global resolution to be, that 9 is fine. 10 THE COURT: Okay. If Mr. Locke backs out of 11 that global resolution, t he verdict will still be entered. 12 Why don't you tell me wha t the global resolution is first, 13 and then I'll see if it's satisfactory -- 14 MR. LONG: Okay. 15 THE COURT: -- for me to resolve this 16 particular case. 17 MR. LONG: Yes, Your Honor, and I'll start 18 with again at issue in th e Dauphin County case is a 19 $60,000.00 escrow account amount. Mr. DiSanto claims that 20 is his. Mr. Locke claims that that escrow money is his 21 stemming from this real e state transaction that is at issue 22 in the case before you. 23 THE COURT: Okay. The Golden Triangle 24 Project. 25 MR. LONG: Mr. Fisher in the case before Your 6 1 Honor has brought a claim for professional fees that he says 2 are entitled to him. 3 THE COURT: Right. That much I know. 4 MR. LONG: In reaching a global resolution, 5 the parties have agreed that the $60,000.00 in escrow will 6 be released in the following manner: 7 That Mr. DiSanto will consent to the release of 8 $51,000.00 to Mr. Locke. The balance of $9,000.00 will be 9 used toward the satisfaction of Mr. Fisher's claims in the 10 case before Your Honor. 11 This agreement would result in the resolution of 12 the case before Your Honor and of the case in Dauphin 13 County. Your Honor is correct in recognizing that Mr. 14 DiSanto is not a party to this action. 15 We do not have a written agreement from Mr. 16 DiSanto, although this morning's negotiations have included 17 discussions with Mr. DiSanto -- between Mr. DiSanto, Mr. 18 Diehl, and Mr. Fisher. 19 So we would propose then that in resolving this 20 case that the Court recognizes that the parties have agreed 21 that $9,000.00 will be paid to Mr. Fisher, presuming that 22 that $9,000.00 comes from that escrow amount. 23 We would ask then that the record reflect in some 24 fashion that upon your verdict of $9,000.00 in favor of Mr. 25 Fisher, that Mr. Fisher through counsel will agree not to 7 1 seek or enter judgment to afford the parties, meaning Mr. 2 Locke and Mr. DiSanto and Mr. Fisher, to consummate the 3 settlement by releasing the escrow funds paying $51,000.00 4 to Mr. Locke and then the $9,000.00 are paid directly to Mr. 5 Fisher. 6 It's my understanding that the escrow monies are 7 held in an account in a financial institution in Boston, 8 Massachusetts. That may even be reflected in one of the 9 exhibits that we have or may be attached to the sales 10 agreement in the instant action. 11 So I would presume that it would be a matter that 12 an authorized party, whether that's Mr. Locke or DiSanto, 13 and Locke would direct the escrow -- 14 THE COURT: I guess my question to you is, 15 What happens if Mr. DiSanto decides, No, I'm not going to 16 settle this. 17 MR. LONG: Your Honor, I have one upset 18 client. I understand the Court's question. I don't have a 19 good answer for that question, Your Honor. 20 MR. LONG: I suppose, Your Honor, recognizing 21 the Court's eagerness to resolve this matter and wanting to 22 enter a verdict -- 23 THE COURT: Because I'm ready to go today. 24 We've been rattled quite a bit on this. This has a -- the 25 case is more than two years old. 8 1 MR. LONG: I would only suggest, Your Honor, 2 that -- where I haven't been involved in the case all that 3 time -- coming from Mr. Locke, the resolution that we've 4 arrived at this morning suggests to me that the parties have 5 moved miles, and the faster that we can reduce this into 6 some semblance of a binding document, the better off 7 everybody is going to be, and I understand that's your 8 concern. 9 THE COURT: Would your client be prepared to 10 take an assignment of $9,000.00 worth of the claim in the 11 escrow in satisfaction of this claim, and then you can agree 12 that you'll satisfy this verdict upon the assignment of 13 that, in the event that doesn't go through because, as I 14 understand it, your client has a relationship with Mr. 15 DiSanto. 16 MR. DIEHL: He continued on as engineer for 17 the project to its fruition, to its finale, and may have 18 other relationships into the future. There could be 19 additional monies paid to Mr. Fisher by Mr. DiSanto. 20 THE COURT: Not only on this project but 21 other projects I would presume, so this case can be resolved 22 if he would agree to accept an assignment of $9,000.00 of an 23 escrow due to Mr. Locke from Mr. Fisher. 24 MR. DIEHL: As long as there was a time 25 frame. We're suggesting ten days. 9 1 THE COURT: What I'm saying is that he's got 2 to give the assignment wi thin ten days, and then he does 3 what he will with Mr. -- you can just agree not to enter 4 judgment on the verdict - - 5 MR. DIEHL: We'll agree to that. 6 THE COURT: -- if he will deliver to you the 7 $9,000.00 on assignment, the $9,000.00 worth of his interest 8 in the escrow account wit hin the ten day time frame. Is 9 that satisfactory? 10 MR. DIEHL: That's satisfactory to my client. 11 THE COURT: And then he can deal with Mr. 12 Disanto for that $9,000.0 0. 13 MR. DIEHL: If we can acknowledge that it's 14 our hope that we won't ha ve to go through the assignment 15 process. 16 THE COURT: I understand. I'm just looking 17 that it doesn't come back to me. 18 MR. DIEHL: Understand. 19 THE COURT: So you've got a -- are you 20 satisfied with the record the way it stands right now? If 21 you are, both parties, I will enter a verdict. 22 MR. LONG: Yes, Your Honor. 23 MR. DIEHL: We're fine. 24 THE COURT: Okay. And now, today`s date, by 25 agreement of the parties, we find in favor of the Plaintiff 10 1 and against the Defendant in the amount of $9,000.00. We 2 find in favor of the Plaintiff and against the Defendant on 3 the counterclaim. 4 I believe that resolves it. Okay. You've got the 5 discussions on the record as far as the stipulations then. 6 MR. LONG: In terms of the assignment, Your 7 Honor. 8 THE COURT: And in terms of what your 9 understanding is. 10 MR. DIEHL: Could we have an understanding of 11 the ten days acknowledging -- it's not in your verdict. 12 THE COURT: It's on the record. 13 MR. DIEHL: But I'm not sure that Mr. Long 14 agreed to that. We just threw ten days out. 15 MR. LONG: As I understand, Your Honor, it's 16 either pay the $9,000.00 or give an assignment. 17 THE COURT: That's right. 18 MR. LONG: Yes, Your Honor. I'm hoping, 19 again, that this is a matter that can be taken care of in a 20 number of days, two, three, four business days. 21 THE COURT: Right. And also if Mr. Locke 22 reneges on the settlement, then he can enter judgment on the 23 verdict. If Mr. Locke wants more than $51,000.00, he can 24 enter judgment on the verdict, or wants some other -- 25 anything other than just the $51,000.00 in cash. 11 1 MR. LONG: Right, Your Honor. 2 THE COURT: He might say I didn 't want this 3 option, or I want you to p ay my legal fees, or yada, yada, 4 yada, so the understanding being that if it's DiSanto that 5 reneges on th e verdict, on the settlement, all Locke has to 6 do is assign his $9,000.00 to Mr. Fisher. If it's Mr. Locke 7 that reneges on the settlement, they should be able to take 8 their judgmen t. Is that agreeable? 9 MR. LONG: Yes, Your Honor. 10 THE COURT: Is that agreeable? 11 MR. DIEHL: Yes, Your Honor. 12 THE COURT: Then that resolves it. Good job. 13 MR. LONG: Thank you. Thank yo u for working 14 through that. 15 (Whereupon, Court adjourned at 1:50 p.m.) 16 17 18 19 20 21 22 23 24 25 12 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of the same. Laura F. Handley Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. ~/a~/y Date Edward E. Guido, J. ~ t r, 1 + ~ ,- ~ '- '~,1 ~'GJ ~ b ,,r , _ ~© ;;~,_. w R.J. FISHER & ASSOCIATES,: INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. LOCKE PROPERTY COMPANY, INC., Defendant CIVIL ACTION - LAW N0. 01-5477 CIVIL TERM ORDER OF COURT AND NOW, this 2nd day of January, 2004, by agreement of the parties, we find in favor of the Plaintiff and against the Defendant in the amount of $9,000.00. We find in favor of the Plaintiff and against the Defendant on the counterclaim. B} Edward E. Guido, J. ,/~raig A. Diehl, Esquire For the Plaintiff ,/'Robert R. Long, Jr., Esquire For the Defendant :lfh ~m~ 7.,vm5ti9tiAt"!~'k~timekavw.~+~a~«riursa~u :-s ,~,-e,+u~-~ s. u..~rc«x7 i~~sv[t~.u~n+ _.. .. If i z9 =~ ~'d ~- ~~f h00Z Q~ ,k, ~r~l~~d~7!-llG~ld ?!-il ~E3 3~1~_!~-C131!~ 1 IN THE COURT OF COMMOIV~PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RJ. FISHER & ASSOCIATES, INC., Plaintiff v. NO: O1-Civil-5477 LOCKS PROPERTY COMPANY, INC., : CIVIL ACTION -LAW Defendant PRAECIPE FOR JUDGMENT ON €~`f ~s_.o~(.~a'P~ Kindly reduce the ~~~et Poor Plaintiff entered by Order of Court dated January 2, 2004, in the amount of Nine Thousand and 00/100 ($9,000.00) Dollars to a judgment in the amount of Nine Thousand and 00/100 ($9,000.00) Dollars. Service of this Praecipe was mailed to opposing counsel, Robert H. Long, Jr., on March 23, 2004. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Date: ~ a3 0 By: Q- ~,~.G Craig A. iehl, Esquire 3464 Trindle Road Camp Hill, PA 17011 (717)763-7613 Attorney ID No: 52801 ~o ~ ~o ~ ~. 0 ~ ^3 r ~ ~~ N -~~_ ~~~ ~ ~, ~ ~ ~~ ~ ~ ~ ~~ '" ~ ~, ~ ~ ~, ~- -~ ~~ ~J LJ ~ ~ ~ c o :G ~ r_