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HomeMy WebLinkAbout03-2658ECHO Industries, Inc. Plaintiff V. AVA Industrial Contractors, Inc. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW JURY TRIAL DEMANDED NOTICE TO DEFEND 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 fall 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 fights 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. LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 RHOADS & SINON LLP ~tta~ ¢;5I]~1~~ 53847 Attorney I.D. No. 86291 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 ATTORNEYS FOR PLAINTIFF 475990.1 ECHO Industries, Inc. Plaintiff V. AVA Industrial Contractors, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW Defendant JURY TRIAL DEMANDED COMPLAINT Plaintiff, ECHO Industries, Inc., by and through its attorneys, Rhoads & Sinon LLP, files this Complaint and avers the following: 1. Plaintiff ECHO Industries, Inc. ("ECHO"), is a Pennsylvania corporation with its principal place of business at 2001 State Road Camp Hill, Cumberland County, Pennsylvania 17011. 2. It is believed and therefore averred that Defendant, AVA Industrial Contractors, Inc. ("AVA"), is a Georgia corporation that maintains a business mailing address at PO Box 738, Palmetto, Georgia 30268. equipment. ECHO is in the business of designing, fabricating and constructing crushing 4. On July 10, 2002, ECHO entered into a contract with AVA through Purchase Order F8772 which accepted AVA's offer to provide a plant erection for new equipment at the Florida Rock Industries' Paulding Quarry in Dallas, Georgia (the "Florida Rock project"). IA true and correct copy of the Purchase Order (hereinafter the "Agreement") is attached hereto as Exhibit "A" and incorporated herein by reference]. -1- 5. The Agreement was formed at ECHO's offices in Camp Hill, Pennsylvania when ECHO sent AVA a purchase order accepted AVA's offer. 6. The total price agreed upon for AVA's work on the Florida Rock project was $378,000.00. 7. AVA's work on the Florida Rock project was "to commence around week of 8/26/02 and be completed by early to mid December 2002." 8. After entering into the Agreement with AVA, ECHO learned that the delivery of steel necessary to erect the plant would not allow for AVA to commence erection on August 26, 2002, as contemplated by the parties, and ECHO informed AVA in a timely manner of the situation. 9. ECHO then agreed to pay AVA an additional charge to unload steel in the month of September so that AVA would not have to pay a mobilization charge included with the purchase order. 10. Throughout October and November, AVA began erecting steel with one work crew and one crane, even though the Agreement provided for two crews and two cranes. 11. After repeated requests from ECHO, AVA told ECHO that both crews and both cranes contemplated in the Agreement would be at the Florida Rock project worksite beginning the first Monday of December. Notwithstanding this representation, ECHO had to continually push AVA to add a second crew and crane to the project. At no time did AVA staff the project with two full crews. Additionally, AVA waited until the beginning of December to begin using two cranes. 12. In the beginning of January 2003, AVA promised ECHO that it would increase manpower to three crews for the remainder of the Florida Rocks project, however, during the -2q week of January 27, 2003 during an inspection, it was apparent that AVA was still lacking a sufficient number of properly trained workers as AVA only had 6 or 7 workers on site. 13. On February 12, 2003, ECHO received notice from the owner of the Florida Rock project that the project completion date had to be no later than March 2, 2003 or ECHO would be removed from the job site and replaced with another firm with all cost charged to ECHO. Notwithstanding notice of this completion date, AVA still failed to have sufficient manpower at the job site. 14. AVA refused to provide additional resources to the Florida Rock project, and it was clear that AVA could not meet any of the schedules for the project. 15. Throughout the course of the Florida Rock project, ECHO continually kept AVA informed of the schedule requirements and status, and through the end of January, AVA never indicated to ECHO that it would have any problems meeting the schedule until a meeting on site at the end of January when ECHO met with the owner of AVA and at that time AVA refused to commit to ensure the job was completed in a timely fashion and refused to provide proper manpower. 16. As a result of AVA's failure to provide adequate manpower, and the fact that AVA would clearly not meet the March 2, 2003 start-up date, ECHO was forced to bring additional manpower onto the job site to complete the work that AVA should have performed under the Agreement. 17. Because of AVA's failure to provide proper qualified manpower on the project, Florida Rock Industries was also required to bring eight of its workers to the site to help erect the plant. -3- 18. Throughout the course of the project, AVA failed to perform its duties under the Agreement and failed to meet agreed-upon manpower requirements. 19. As a result of AVA's inadequate performance, ECHO's on-site supervisor had to act as a crew supervisor and actually assist in organizing and erecting of steel functions that were AVA's responsibility under the Agreement. 20. AVA's own supervisor lacked the necessary skills to read blue prints, and was unable to read drawings, schedules, and shipping lists, causing numerous delays. 21. Due to lack of supervision and inadequate supervisory skills, the Florida Rock project was delayed and costs were incurred by ECHO. 22. AVA failed to complete many of the tasks included in the Agreement, and ECHO was forced to complete these tasks at substantial cost to ECHO. 23. AVA also deficiently performed much of the work that it did at the Florida Rock project. While AVA corrected some of its own defective work, ECHO was required to expend substantial time and expense in correcting the deficiencies AVA failed to correct. 24. To date, ECHO has paid AVA approximately $380,000.00 for its work at the Florida Rock project; however, ECHO has incurred substantial costs in correcting and completing AVA's work on the project. 25. To date, AVA has remitted invoices to ECHO in excess of $645,000.00 for the Florida Rock project, which ECHO disputes are due and owing to AVA. Many of the costs contained on the invoices are the result of AVA's own inadequate performance, and should be covered by the contract price as this was not a time and materials job. -4- 26. reference. COUNT I BREACH OF CONTRACT The averments contained in paragraphs 1-25 above are incorporated herein by 27. AVA breached the Agreement by failing to complete the erection of the Florida Rock project quarry in a competent, efficient and timely manner and in accordance with the terms of the Agreement. 28. Pursuant to the Agreement, AVA was to provide adequate manpower as well as individuals who were fully qualified to perform the tasks outlined in the Agreement. 29. AVA breached the Agreement by failing to complete the work in the Agreement in a manner required by the Agreement and in accordance with the industry standard and by failing to provide a sufficient number of qualified employees to perform the work identified in the Agreement. 30. As a result of AVA's breach of the Agreement, ECHO incurred substantial costs to correct and complete work covered by the Agreement. WHEREFORE, ECHO respectfully requests this Court to enter judgment in its favor and against AVA in an amount in excess of $25,000.00, the compulsory arbitration amount, plus interest, reasonable attorneys fees and costs, and for such other relief as the Court may deem appropriate. 31. reference. COUNT Il: NEGLIGENT MISREPRESENTATION The averments contained in paragraphs 1-30 above are incorporated herein by -5- 32. In its dealings with ECHO, AVA was under an obligation to speak truthfully about the capabilities of AVA to erect a Florida Rock Industries quarry type plant. 33. AVA made representations to ECHO that AVA was a competent contractor familiar with the requirements for erecting the Florida Rock Industries quarry type plants and that it was capable of erecting said plants in accordance with the industry practice and standards, and its ability to provide the manpower necessary to adequately perform the project. 34. At the time these representations were made to ECHO, which representations were material to ECHO, AVA did not then have the knowledge, skills, or resources necessary to adequately perform the project or to provide the necessary manpower. 35. AVA knew or should have known that it did not have the knowledge or skills necessary to adequately perform the project or the resources to provide the necessary manpower. 36. AVA knew or should have known that ECHO would rely on these representations when entering into the Agreement. 37. ECHO reasonably relied on the representations when it entered into the Agreement and performed under the Agreement. 38. Had AVA not made such misrepresentations regarding its knowledge and abilities, ECHO would not have entered into the Agreement. 39. As a direct and proximate result of AVA's misrepresentations, ECHO has suffered, and will continue to suffer, damages. WHEREFORE, ECHO respectfully requests this Court to enter judgment in its favor and against AVA in an amount in excess of $25,000.00, the compulsory arbitration amount, plus interest, reasonable attorneys fees and costs, and for such other relief as the Court may deem appropriate. -6- 40. reference. COUNT III: DECLARATORY RELIEF The averments contained in paragraphs 1-39 above are incorporated herein by 41. declaration to declare the rights and liabilities of the parties. 42. AVA bid the Florida Rock project for $378,000.00. 43. ECHO has already paid AVA approximately $380,000.00. 44. Additionally, as outlined above, ECHO has incurred substantial costs in completing and correcting work covered by the Agreement. 45. At this time, AVA contends that ECHO owes AVA for unpaid invoices in amounts approximating $300,000.00. 46. Declaratory relief is appropriate to declare the rights and obligations of the parties. Pursuant to the Pennsylvania Declaratory Judgments Act, this Court may issue a WHEREFORE, Plaintiff respectfully requests that this Court issue an order declaring that ECHO is not responsible to pay any additional compensation to AVA for the Florida Rock project now or in the future. Date: June 5, 2003 Respectfully submitted, RHOADS & SINON LLP pean F~'~attei He~tl~r Z. Kelly One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff -7- ~/~.uuJ .~4:42 FA,i 71'i' 2;376790 __ R//OAg.q_._.& SINOIV yERrrglCATION Michael J. March, deposes :md says, subject to file pena]tius of 18 Pa. C.S. §4904 relatiug to unswom ~ulslfica~on to auU~c,~tles, that he is ~c Executive Vice Pr~ident of ECHO l~dusi:ics, Inc., Oust he ~c~ ~is re, cation by i~ autho~iiy ~d that tho Facts set /brc~oin~ plc~l'{n~ ~ fmc ~d colrect to th~ best of bls ~owledge, info.aL/on ~d belie[ Michael 1. l~ar-ch~~'' - ' -- Exhibit A 04-0~-0~ O3:~4P~ _ ... 2001 State Road, Camp Hill PA 17011 'phone: (7t7) 731-0204, Fax: (717) 731-0249 r Vendor IF Name AVA Industrial Contractors, Inc. Address PO Box 738 City Palmetto St GA ZIP 302_68 Contact Tany Vacinek Phone 77~4~3-2974 ax 7~'0-453-2976 ~-- Ship To Name Address City Contact Phone Fax _,, Qty I Units Description T-14g P.OOZ?OIO F-548 P~ .nase Order No. FB772 Customer: FLORIDA ROCK EAS WO#: Fabrication WO#: F2222 -- 0'7. By: DTK Date: 7/10/2002 PURCHASE ORDER / St ZIP Unit Price I TOTAL Plant erection for new equipment for Florida Rock Paulding Quarry per AVA fax dated 7/10/02 $378,000.00 $378,000.00 Work will commmence around week of 8/26/02 and to be completed by early to mid December 2002, Shipping Date Sub Total $ 378 000.00 Shipping & Hand_lj.n_g TOTALI $ 378,000.00 mments ECHO Industries, Inc. Plaintiff V. AVA Industrial Contractors, Inc. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 03-2658-Civil Term JURY TRIAL DEMANDED AFFIDAVIT OF RETURN SERVICE BY MAIL On June 5, 2003, I mailed a true copy of Plaintiff's Complaint by certified mail, return receipt requested to the Defendant, Ava Industrial Contractors, Inc., P.O. Box 738, Palmetto, GA 30268. The Defendant signed the return receipt upon delivery and the receipt, attached hereto as Exhibit "A", was returned by the post office on June 12, 2003. I make these statements pursuant to 18 Pa. Cons. Stat. §4904 relating to unsworu falsification to authorities and understand that false statements may subject me to criminal penalties under that statute. Date: June 12, 2003 By: Respectfully submitted, RHOADS & S1NON LLP Teresa L. Paulhamus, Secretary to Dean F. Piermattei One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 476038.1 OFF Hem PS Fo~ 3811, March 2001 ~m~tic Return R~eipt 102595-01-M-1424 ECHO Industries, Inc., Plaintiff, ¥S. AVA Industrial Contractors, Inc., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Law No. 03-2658 Jury Trial Demanded NOTICE OF REMOVAL AVA Industrial Contractors, Inc. ("AVA"), by its undersigned counsel, hereby serves notice that it has removed this action to the United States District Court for the Middle District of Pennsylvania. A copy of the notice of removal filed in that court is attached. The docket number in that court is No. 1:03-cv-1059. Respectfully submitted, KIRKPATRICK & LOCKHART LLP David R. Fine t~ Pa. Supreme Ct. No. 6-6742 240 North Third Street Harrisburg, PA 17101 (717) 231-4500 Counsel for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ECHO INDUSTRIES, INC., Plaintiff, VS. NO. [ELECTRONICALLY FILED] AVA INDUSTRIAL CONTRACTORS, INC., Defendant. : NOTICE OF REMOVAL AVA Industrial Contractors, Inc. ("AVA"), by its undersigned counsel, hereby removes this action to this Court from the Court of Common Pleas of Cumberland County, Pennsylvania. 1. Plaintiff is ECHO Industries, Inc. ("ECHO"), a Pennsylvania corporation with its principal place of business in Pennsylvania. 2. Defendant is AVA Industrial Contractors, Inc. ("AVA"), a Georgia corporation with its principal place of business in Georgia. 3. On June 5, 2003, ECHO filed a complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, asserting claims for breach of contract and negligent misrepresentation and seeking a declaratory judgment that ECHO is not indebted to AVA for unpaid invoices totaling more than $300,000. 4. There being complete diversity of citizenship among the parties and an amount in controversy exceeding the sum or value of $75,000, this action could have been brought within this Court's original jurisdiction. 28 U.S.C. § 1332. 5. The only process or order so far filed in this matter is the complaint attached to this notice at Tab "A." 6. In removing this matter to this Court, AVA does not intend to waive any defenses it might have including, but not limited to, personal jurisdiction and venue. WHEREFORE, Defendant AVA Industrial Contractors, Inc., respectfully removes this case to this Court in accordance with 28 U.S.C. § 1441. Respectfully submitted, KIRKPATRICK & LOCKHART LLP June 25, 2003 s/ David R. Fine David R. Fine PA 66742 Jacqueline Jackson-DeGarcia PA68745 240 North Third Street Harrisburg, PA 17101 (717) 231-4500 Counsel for Defendant CERTIFICATE OF SERVICE I hereby certify that, on June 25, 2003, I served a copy of the foregoing document on the following by U.S. Mail, postage-prepaid: Dean F. Piermattei, Esq. Heather Z. Kelly, Esq. Rhoads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146. s/ David R. Fine David R. Fine CERTIFICATE OF SERVICE I hereby certify that, on June 25, 2003, I served a true and correct copy of the foregoing document on the following by first-class United States Mail, postage-prepaid: Dean F. Piermattei, Esq. Heather Z. Kelly, Esq. Rhoads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 David R. Fine