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HomeMy WebLinkAbout03-2750TAM SYSTEMs, INc. 1248 South Mountain Road Dillsburg, PA 17019 Plaintiff, : IN THE COURT OF COMMON PLEAs OF · CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION LAW NORTH CENTRAL MECHANICAL, INC., ~ THE F/DELITY & DEPOSIT COMPANy : OF MARYLAND, and ZURICH NORTH AMERICA SURETY, ' Defendants· : JURY TRIAL DEMANDED PRAECIPE FOR A WR/T OF SUMMoNs TO: CURTIS R. LONG, PROTHONOTARy Please enter my appearance on behalf of the Plaintiff. TAM Systems, Inc. Please issue a Writ of Summons upon the Defendants, No~th Central Mechanical,'Inc., The Fidelity & Deposit Company of Maryland, and Zurich No~h America Surety. Mechanical, Inc. at the following address: Please also have the Sheriff serve Defendant North Central NORTH CENTRAL MECHANICAL,/NC. 589 South Avenue Bradford, PA 16701 The remaining Defendants are located at 3910 Keswick Road, 5th Floor, Baltimore, Maryland 21211 and will be served by certified mail, return receipt requested. Date: June 11, 2003 Respectfully, submitted IRWIN, Mci<NIGHT & HUGHES By: ~ 60 West Pomfret Street Carhsle, PA 17013 (717) 249-2353 North Central Mechanical, Inc., The Fidelity & Deposit Company of Maryland, and Zurich North America Surety You are hereby notified that TAM Systems, Inc., the Plaintiff, has commenced an action against you which you are required to defend or a default judgment may be entered against you. Date: ~, 2003 TAM SYSTEMS, INC. Plaintiff, NORTH CENTRAL MECHANICAL, INC.,: THE FIDELITY & DEPOSIT COMPANY : OF MARYLAND, and ZURICH NORTH : AMERICA SURETY, : Defendants. : : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ._ : CIVIL ACTION - LAW : : NO. 2003-2750 JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE OF COMPLAINT COMMONWEALTH OF PENNSYLVANIA : : SS: COUNTY OF CUMBERLAND : NOW, Douglas Miller, Esquire, being duly sworn according to law, does depose and state: 1. That he is a competent adult and attomey for the Plaintiff in the captioned action. That a certified copy of the Complaint was served upon the defendant, Fidelity & Deposit Company of Maryland on June 13, 2003 by certified mail, return receipt requested, addressed to Zurich North America Surety, 3910 Keswick Road, 5th Floor, Baltimore, Maryland 21211 with return receipt number 7002 0860 0000 1074 4001. That the said receipt for certified mail is signed and attached hereto and made a part hereof. I verify that the statements made in this affidavit are tree and correct. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. IRWIN, McKNIGHT & HUGHES Date: June 16, 2003 Dough-G./~vl~lle;, i~squi{e- - Supreme Cgurt Id # 83776 60 West Pomfi'et Street Carlisle, PA 17013 (717) 249-2353 Attorney for Plaintiff TAM Systems, Inc. C AL · 'Complete ~tems 1, 2, and 3. Also complete ~tem 4 if Restricted Delivery is desired. · Pdnt your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the maiipiece, or on the front if space pan'nits. c'1 Agent by ( Printed Name) 1. Article Addressed to: Y~del~y & Deposit Company o£ I~a~yland 3910 Kesmick Road 5th Floor Balti~ore, ND 21211 3. Sef~ce Type [] Certified Marl [~] Express Mail r-I Registered ~ Return Receipt for Merchendise ~-I Insured Mail [] C.O.D. 4. Restricted Delivery? (~tra Fee) 2. Article Number [] Yes D. Is deflve~y address different from item If YES, enter defivery addre.~ [] No ~i-rans~rfr~rn~ervicelabel) 7002 0860 0000 1074 4001 PS Form 3811, August 2001 Domestic Return Receipt 102595-02-M- 1035 TAM SYSTEMS, INC. Plaintiff, NORTH CENTRAL MECHANICAL, INC.,: THE FIDELITY & DEPOSIT COMPANY : OF MARYLAND, and ZURICH NORTH : AMERICA SURETY, : Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW .. NO. 2003-2750 : JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE OF COMPLAINT COMMONWEALTH OF PENNSYLVANIA : : SS: COUNTY OF CUMBERLAND : NOW, Douglas Miller, Esquire, being duly sworn according to law, does depose and state: 1. That he is a competent adult and attomey for the Plaintiff in the captioned action. That a certified copy of the Complaint was served upon the defendant, Zurich North America Surety on June 13, 2003 by certified mail, return receipt requested, addressed to Zurich North America Surety, 3910 Keswick Road, 5th Floor, Baltimore, Maryland 21211 with return receipt number 7002 0860 0000 1074 3967. That the said receipt for certified mail is signed and attached hereto and made a part hereof. I verify that the statements made in this affidavit are tree and correct. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. IRWIN, McKNIGHT & HUGHES Date: June 16, 2003 Douglas G.(j~liller, E~quire Supreme Court Id # 83776 60 West Pomfi'et Street Carlisle, PA 17013 (717) 249-2353 Attorney for Plaintiff TAM Systems, Inc. C]AL US $ ,3-7 · 'Complete items 1, 2, and 3. Also complete item 4 if Rsstdcted Delivery is desired. · Pdnt your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpiece, or on the front if space permits. 1. Articie Addressed to: Zurich HorthAmerlca Surety 3910 EeswickRoad JSth Floor Baltimore, I~D 21211 ,A, Signatu B. R~'~ved by (Pnnf~d Name) of~iv'* 3. Se~ice Type [] Certified Mall [] Express Mall [] Registered ~[Return Receipt for Merchandise [] Insured Mail [] C.O.D. 4. Restricted Delivery? (Extra Fee) [] Yes 2. Article Number (Transfer from service label) PS Form 3811, August 2001 7002 0860 0000 1074 3967 Domestic Return Receipt 102595-02-M-1035 TAM SYSTEMS, 1NC., Plaintiff NORTH CENTRAL MECHANICAL, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 03-2750 INC., FIDELITY & DEPOSIT COMPANY: OF MARYLAND and ZURICH NORTH : Civil Action AMERICA SURETY, : Defendants : PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Thomas O. Williams, Esquire and Theodore A. Adler, Esquire of the law firm ofReager & Adler, P.C. as attorneys for Defendants in the above captioned case. Date: July 3, 2003 Respectfully s3i~mitted, REAGER &/ADLT, P.C. Theodore A. Adler, Esquire Attorney I.D. No. 16267 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorneys for Defendants CERTIFICATE OF SERVICE AND NOW, this 3ra day of July 2003, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: Douglas G. Miller, Esquire IRWlN, McKNIGHT & HUGHES 60 West Pomfret Street Carlisle, PA 17013 stine M. Ciccocioppo, Paralegal TAM SYSTEMS, INC. 1248 South Mountain Road Dillsburg, PA 17019 Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2750 Civil Term NORTH CENTRAL MECHANICAL, INC.,: THE FIDELITY & DEPOSIT COMPANY OF MARYLAND, and ZURICH NORTH AMERICA SURETY, Defendants. JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Pursuant to Pa. R.C.P. 1037, please issue a role granting l?laintiff twenty (20) days in which to file a Complaint in the captioned action against the Defendants, after service hereof or suffer the entry of a Judgment of Non-Pros. Date~ ~)! ~)~ Respectfull~ a¢itted, Attorney I.D. No. 16267 Thomas O. 'Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants TAM SYSTEMS, INC. 1248 South Mountain Road Dillsburg, PA 17019 Plaintiff, vi. IN THE COURT OF COMMON PLEAS OF CUMBERLAND ,COUNTY, PENNSYLVANIA C1VIL ACT]ION - LAW NO. 03-2750 Civil Term NORTH CENTRAL MECHANICAL, INC.,: THE FIDELITY & DEPOSIT COMPANY : OF MARYLAND, and ZURICH NORTH AMERICA SURETY, Defendants. JURY TRIAL DEMANDED RULE TO FILE COMPLAIN']? AND NOW, this 8th day of July, 2003, a Rule is hereby granted upon TAM Systems, Inc., Plaintiff, to file a Complaint herein against North Central Mech~mical, Inc., The Fidelity & Deposit Company of Maryland, and Zurich North America Surety, Defendants, within twenty (20) days after service hereof or suffer the entry of a Judgment of Non Pros. CERTIFICATE OF SERVICE AND NOW, this 8th day of July 2003, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: Douglas G. Miller, Esquire 60 West Pomfret Street Carlisle, PA 17013 THEOI~OKE A. ADLER, ESQUIRE 5° SHERIFF'S RETURN - OUT OF COUNTY 'CASE NO: 2003-02750 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TAM SYSTEMS INC VS NORTH CENTRAL MECHANICAL ET AL R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT NORTH CENTRAL MECHANICAL INC but was unable to locate Them deputized the sheriff of MCKEAN serve the within WRIT OF SUMMONS , Sheriff or Deputy Sheriff who being says, that he made a diligent search and to wit: in his bailiwick. County, He therefore Pennsylvania, to On June 30th , 2003 , this office was in receipt of the attached return from MCKEAN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep McKean County 34.00 .00 71.00 06/30/2003 Sheriff of Cumber a~nd County IRWIN MCKNIGHT HUGHES Sworn and subscribed to before me this 7~ day o~,~ a~ A.D. ---- Prothonotary ' 'In ~he Court of Common Pleas of Cumberland County, Pennsylvania Tm Systems Inc VS, North Central Mechanical Inc SERVE: s~e No. 03-2750 civil Now, June 13, 2003 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of McKean County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within a o'clock M. served the and made known to }'3 t°f the contents thereof. Sworn and subscribed before me thiscs~a~day of (~_ ,20 0_.% AFFIDAVIT T RIA SEAL N0 A L ~ I T'~I~k t. MORt'Y, NOTARY PU.UC I I KEATIN6 TWR. McKEAII COUNIY I [ My CO~MISSION [XPI,£$ FEB, 6. 20061 So answers, SERVICE $ MILEAGE TAM SYSTEMS, INC. 1248 South Mountain Road Dillsburg, PA 17019 Plaintiff, · IN THE COURT OF COMMON PLEAS OF i CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 03-2750 Civil Term NORTH CENTRAL MECHANICAL, INC.,: THE FDELITY & DEPOSIT COMPANY : OF MARYLAND, and ZURICH NORTH : AMERICA SURETY, : Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Christine M. Ciccocioppo, verify that on August 8, 2003, I caused the Notice which is attached hereto as Exhibit A to be placed in the United States mail, first class, postage prepaid and addressed to Plaintiff at TAM SYSTEMS, INC., 1248 South Mountain Road, Dillsburg, Pennsylvania 17019 and Douglas G. Miller, Esquire, 60 West Pomfret Street, Carlisle, Peimsylvania 17013. A copy of the certificates of mailing is attached hereto as Exhibit B. Date: August 12, 2003 Respectfully submitted, REAC~ &/ADLER, P.C. Christine M. Ciccocioppo, Paralegal TAM SYSTEMS, INC. 1248 South Mountain Road Dillsburg, PA 17019 Plaintiff, NORTH CENTRAL MECHANICAL, INC., THE FIDELITY & DEPOSIT COMPANY OF MARYLAND, and ZURICH NORTH AMERICA SURETY, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 03-2750 Ci~vil Term JURY TRIAL DEMANDED IMPORTANT NOTICE To~ TAM Systems, Inc. 1248 South Mountain Road Dillsburg, PA 17019 Douglas G. Miller, Esquire 60 West Pomffet Street Carlisle, PA 17013 Date of Notice: August 8, 2003 YOU ARE IN DEF~AULT BECAUSE YOU HAVE FAILED TO FILE A COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JIJDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER. AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP:: EXHIBIT "A' Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 TheodOre A. 5kdler, Esquire Attorney I.D. No. 16267 Thomas O. Williams, Esquire Attorney I.D. NO. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants U,S. POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT PROVIDE FOR ,,I~,~URANCE --POSTMASTER Received From: REAGER & ADLER, PC 2331 Market Street C~-mp Hi!!, PA 17011 One piece of ordinary mail edd Dill~hnrg. PA 1701( PS Form 3817, Mar. 1989 Affix fee here in stamps or meter postage and post mark. Inquire of Post~0aster for current c,i IU.S, POSTAL SERVICE CERTIFICATE OF MAILING MAY gE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT PROVIDE FOR iNSURANCE--POSTMASTER Received From; REAGER & ADLER, PC Z3.5 i MarKI Douglas ~ ~ uire C~lisle, PA 17013 PS Form 3817, Mar. 1989 Affix fee here in stamps /~ostm?~_te~- ~0t ~Jrrem EXI-IIBIT TAM SYSTEMS, INC. Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : NORTH CENTRAL MECHANICAL, INC.,: THE FIDELITY & DEPOSIT COMPANY : OF MARYLAND, and ZURICH NORTH : AMERICA SURETY, : Defendants. : CIVIL ACTION - LAW NO. 2003 - 2750 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, 6rder 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 ar~ warned that if you fail to do so the case may proceed without you and a judgment may be entere¢l against you by the court without further money claimed in the complaint or for any other clain~ 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 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 (800) 990-9108 Americans with Disabilities Actof1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please co~tact our office. All arrangements must be made at least 72 hours prior to any hearing or business before t~e court. You must attend the scheduled conference or hearing. TAM SYSTEMS, INC. Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : NORTH CENTRAL MECHANICAL, INC.,: THE FIDELITY & DEPOSIT COMPANY : OF MARYLAND, and ZURICH NORTH : AMERICA SURETY, : Defendants. : CIVIL ACTION - LAW NO. 2003 - 2750 JURY TRIAL DEMANDED COMPLAINT AND NOW, this 18th day of August, 2003, comes the Plaintiff, TAM SYSTEM~, INC., a Pennsylvania Corporation, by and through its attomeys, Irwin, McKnight & Hughes, a~d makes the following Complaint against the Defendants, NORTH CENTRAL MECHANICAL, INC., FIDELITY & DEPOSIT COMPANY OF MARYLAND, and ZURICH NORTH AMERICA SURETY, jointly and severally, averring as follows: 1. Plaintiff TAM Systems, Inc. (hereinafter "TAM"), is a Pennsylvania corPoration with its principal place of business at 1248 South Mountain Road, Dillsburg, PA 17019.: 2. Defendant North Central Mechanical, Inc. (hereinafter "North Central"), is a Pennsylvania corporation with an address of 589 South Avenue, Bradford, PA 16701. 3. Defendant Fidelity & Deposit Company of Maryland (hereinafter "Fideli{y"), is a corporation authorized to provide certain insurance services in Pennsylvania with an address of 3910 Keswick Road, 5th Floor, Baltimore, MD 21211. 4. Defendant Zurich North America Surety (hereinafter "Zurich"), with an address of 3910 Keswick Road, 5th Floor, Baltimore, MD 21211. 1s a cot ~oration 5. Defendant North Central served as general contractor for certain construction and renovation work at the State Correctional Institution in Camp Hill, Cumberland County, Pennsylvania (hereinafter "the Project"). 6. The Project included the provision of an ash silo enclosure at the facility.! 7. L. Robert Kimball & Associates had prepared architectural and engineering drawings for the dimensions and other requirements of the ash silo. 8. On its plan dated September 20, 2001, L. Robert Kimball & Associates provided for the installation of a "pre-engineered galvanized metal silo" referenced as "Brock Model No. 85-01815." 9. On or about October 1, 2001, after receiving a copy of the engineer's Orawings, Plaintiff TAM submitted a sales proposal to Defendant North Central to provide tt~e Brock Commercial Bin, Model #01815, for the Project and to assemble the structure on site. A true and correct copy of the Sales Proposal in the mount of $25~635.00 is attached hereto and incorporated herein as Exhibit "A." I0. The proposal attached as Exhibit "A" specifically provides that the commercial bin is to be set on steel and welded in place by others. 11. On or about November 26, 2001, Defendant North Central accepted Piaintiff's proposal in the amount of $25,635.00. Tree and correct copies of Defendant's signett ],etter of Transmittal dated November 26, 2001 and signed Submittal Cover Sheet are attached he :eto and incorporated herein as Exhibit "B." 2 12. On or about November 30, 2001, Defendant North Central paid a deposit of $3,845.00 to Plaintiff, but also put a hold on the purchase order of the commercial bin due to what its agents referred to as "height concerns." 13. Shortly thereafter, Defendant North Central by and through its representatives released the hold and allowed the purchase order to be submitted as originally prepared.i 14. On or about February 4, 2002, Plaintiff TAM began construction to assemble the commercial bin on site at the correctional facility. 15. Plaintiff TAM verified that the commercial bin shipped to the project ~ite was a Brock Commercial Bin, Model #01815, per the original architectural and engineering d~awings. 16. On or about February 27, 2002, Defendant North Central or its authorized agents installed the assembled commercial bin. 17. Defendant North Central subsequently contacted Plaintiff TAM and asked for the price to raise the height of the commercial bin by one ring. 18. In response Plaintiff TAM submitted a proposal to Defendant North (~entral to add one ring, 32 inches high, to the commemial bin. A true and correct copy of We Sales Proposal dated March 4, 2002, in the amount of $6,460.00 and submitted by Plaintiff isi attached hereto and incorporated herein as Exhibit "C." 3 19. Defendant North Central did not respond to Plaintiff's proposal, but upon information and belief it had the height of the commercial bin raised by individuals and/or entities other than Plaintiff. 20. In correspondence dated March 12, 2002, and March 25, 2002, Defendant North Central informed Plaintiff that it was electing to withhold payment of the balance of th~ contract price pending alleged backcharges incurred by it. 21. On or about April 2, 2002, Plaintiff was notified of an alignment problem with a ladder and the top hatch of the enclosure. 22. Modifications were subsequently approved by Defendant North Cehtral and performed by Plaintiff TAM on or about April 23, 2002 at no additional cost. i 23. Plaintiff subsequently received a payment from Defendant North Central in the amount of $2,647.00, and notice that the remaining amount due of $19,143.00 ~as being retained for backcharges. 24. Despite repeated requests by Plaintiff TAM, Defendant North Central has failed and refused to pay the remaining sums due under the invoice, which amotmt is $19,143.00, plus additional interest at the invoice rate of 1½% per month. WHEREFORE, Plaintiff TAM Systems, Inc. respectfully requests judgment against Defendants in the amount of $19,143.00, together with interest at the contract rate of 1½% per month, costs, reasonable attorney fees, and such other and further relief as this Court d, ~ms just. COUNT I - BREACH OF CONTRACT TAM SYSTEMS, INC. v. NORTH CENTRAL MECHANICAL, INC. 25. The averments contained in paragraphs one (1) through twenty-four (24) are hereby incorporated by reference and are made part of this Count I. 26. Plaintiff submitted the Sales Proposal attached as Exhibit "A" to Defendant North Central in accordance with the Project drawings provided to Plaintiff. 27. Defendant North Central accepted Plaintiff's proposal on or about November 26, 2001 as indicated by the documents attached as Exhibit "B." 28. Plaintiff ordered the commercial bin selected by Defendant North Central and its architects and engineers as indicated on the Project drawings. 29. Prior to assembly, Plaintiff verified that the commercial bin that was shipped to the Project site matched the type requested by Defendant North Central and its agents. 30. Plaintiff timely and satisfactorily provided labor and materials in compliance with the terms and conditions of the contract between the parties, including correcting the glignment problems at the top of the structure at no additional cost to Defendant North Cehtral, and Plaintiff performed all of its work described in Exhibit "A" in a good and workmanlike [nanner. 31. Defendant North Central has breached said contract by refusing to make payment in full pursuant to the terms of the contract. 5 32. The proposals submitted to Defendant North Central provide that payment shall be made within thirty (30) days, or interest shall accrue at the rate of one and one-half percent (1½%) per month. 33. As a result of the aforementioned breach and Defendant North Central's!refusal to compensate Plaintiff under the terms of their contract, Plaintiff has suffered actual dhrnages in the amount of $19,143.00, plus applicable interest as provided in the contract. WHEREFORE, Plaintiff TAM Systems, Inc. respectfully requests judgmegt against Defendants in the amount of $19,143.00, together with interest at the contract rate o4 1½% per month, costs, reasonable attorney fees, and such other and further relief as this Court de,ems just. COUNT II - UNJUST ENRICHMENT TAM SYSTEMS, INC. v. NORTH CENTRAL MECHANICAL, INC. 34. The averments contained in paragraphs one (1) through thirty-three (33) are hereby incorporated by reference and are made part of this Count II. 35. Plaintiff conferred a benefit upon Defendant North Central in the form of labor and materials to order and assembly the commercial bin selected by Defendant for the ]~roject. 36. commercial bin identified in Defendant's Project drawings, and at all times during endeavors, Defendant North Central knew and was aware of the work being unde Plaintiff. Defendant North Central contracted with Plaintiff TAM for the provision of the ?laintif~s rtaken by 6 37. Defendant North Central has failed to timely and satisfactorily remit full payment to Plaintiff TAM for services and materials rendered in the ordering and assembly of the commercial bin selected by Defendant and its agents for the Project. 38. Defendant North Central received the full benefit of those services an4 materials rendered by Plaintiff TAM and continues to enjoy the benefits of the work completed b~ Plaintiff by falling to submit payment for the work to Plaintiff. 39. Defendant North Central has been unjustly enriched by receiving the full benefit of the work completed by Plaintiff TAM and by failing to remit to Plaintiff the full p~yment for such services rendered. WHEREFORE, Plaintiff TAM Systems, Inc. respectfully requests judgment against Defendants in the amount of $19,143.00, together with interest at the contract rate oM 1½% per month, costs, reasonable attorney fees, and such other and further relief as this Court d~ems just. COUNT III - CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT TAM SYSTEMS, INC. v. NORTH CENTRAL MECHANICAL, INC. 40. The averments contained in paragraphs one (1) through thirty-nine (39) are hereby incorporated by reference and are made part of this Count III. 41. The Contractor and Subcontractor Payment Act (hereinafter "CSPA"), 73 Pa.C.S.A. § 501, et seq., applies to the Project and the contract between the parties. 42. Defendant North Central entered into a construction contract with the Department of General Services of the Commonwealth of Pennsylvania to improve the real property in Camp Hill, Cumberland County, Pennsylvania known as the State Correctional Institution! in Camp Hill. 43. CSPA. Defendant North Central is therefore a "Contractor" as that term is defi~ed in the 44. Plaintiff TAM contracted with Defendant North Central for furnish !labor and materials to Defendant as Contractor, in connection with its prime contract with the l~epartment of General Services. 45. Plaintiff TAM is therefore a "Subcontractor" as that term is def'med in ~e CSPA. 46. Plaintiff TAM has performed in accordance with the provisions of its contract by supplying all of the labor and materials described in the sales proposal accepted by the Icontractor and its architects and engineers. 47. to Defendant North Central in the amount of $21,790.00. On or about February 22, 2002, Plaintiff TAM submitted its invoice fo~' payment 48. Defendant North Central has only made payment of $2,647.00 in r~ Plaintiff's invoice, resulting in an amount owed under the contract of $19,143.00. sponse to 49. Notwithstanding Plaintiff's repeated demands, Defendant North Central has wrongfully and unreasonably failed and refused to pay Plaintiff for labor and materials supplied in accordance with the terms of the parties' contract. 50. Defendant North Central's wrongful and unreasonable failure to pay Plaintiff monies owed for work performed on the Project violates the CSPA. 51. Upon information and belief, Defendant North Central has been paid by the Department of General Services for the labor and material supplied by Plaintiff ~nder the contract between the parties. 52. The CSPA provides that if payment is wrongfully and unreasonably not Imade to a subcontractor when due, the contractor shall pay to the subcontractor, in addition to the amount due, interest computed at the rate of one percent (1%) per month. 53. The CSPA further provides that if an action is commenced to recover payments due under the Act, and it is determined that a contractor failed to comply with the pay~aent terms of the Act, in addition to all other damages due, the Court may award a penalty eqhal to one percent (1%) per month of the amounts wrongfully and unreasonably withheld tog :ther with reasonable attorney's fees and expenses. 54. Defendant North Central, without justification or cause, has violated the CSPA by wrongfully and unreasonably failing to pay Plaintiff's invoice in full when due. 55. As a result of Defendant North Central's wrongful and unreasonable withholding of amounts due to Plaintiff TAM in violation of the CPSA, Plaintiff requests that a penalty be assessed against Defendant North Central as follows: An award to Plaintiff of interest at 1% per month of the amount wrongfully withheld by Defendant North Central; An award to Plaintiff of damages equal to 1% per month of tt~e amount wrongfully withheld by Defendant North. Central; and ~ An award to Plaintiff of its reasonable attorney's fees eXl~ended in pursuing its claims under the CPSA. WHEREFORE, Plaintiff TAM Systems, Inc. respectfully requests judgment against Defendants in the amount of $19,143.00, together with interest, penalties as provided above, costs, reasonable attorney fees, and such other and further relief as this Court deems just. COUNT IV - CLAIM AGAINST SURETY ON SUBCONTRACTOR'S BOND TAM SYSTEMS, INC. v. FIDELITY & DEPOSIT COMPANY OF MARYLAND and ZURICH NORTH AMERICA SURETY 56. The averments contained in paragraphs one (1) through fif~y-five (55) are hereby incorporated by reference and are made part of this Count IV. 57. Defendant Fidelity & Deposit Company of Maryland is an insurance company authorized to do business in the Commonwealth of Pennsylvania. ~ 58. As a condition of being awarded the Project, Defendant North ~entral as contractor was required to submit to the owner of the real estate a payment and p~rformance bond to assure that it would perform the construction contract and to ass~e that all subcontractors and material suppliers performing work or supplying materials oni ~he Project 10 would be paid. A tree and correct copy of the bond is attached hereto and incorporated herein as Exhibit "D." 59. In the event of contractor's failure to pay material suppliers and subcontractors, Defendant Fidelity, by virtue of the surety bond issued on behalf of Defendant North Central on the Project, agreed to be liable for all such costs to the extent of the amount of the bonc[ 60. Plaintiff TAM, as a subcontractor on the Project, was a third-party beneficiary of the surety bond. 61. Plaintiff has received payments from the contractor, Defendant North Central, totaling $9,107.00, which leaves the amount of $19,143.00 remaining and due under tile contract between Plaintiff and the contractor. 62. By correspondence dated June 12, 2002, Defendant Zurich indicated ihat it was handling the matter on behalf of Defendant Fidelity. A true and correct cot~y of said correspondence is attached hereto and incorporated herein as Exhibit "E." 63. By correspondence dated July 1, 2002, Defendant Zurich refuse4 to remit payment to Plaintiff for the sums due and owing under its contract. A tree and correct copy of said correspondence is attached hereto and incorporated herein as Exhibit "F." 64. Plaintiff TAM has complied with all notice obligations required unde~ the terms of the Defendants' surety bond. 11 65. Despite repeated requests by Plaintiff TAM, Defendants have failed and refused to pay the remaining sums due and owing to Plaintiff. WHEREFORE, Plaintiff TAM Systems, Inc. respectfully requests judgment against Defendants in the amount of $19,143.00, together with interest at the contract rate of' 1½% per month, costs, reasonable attorney fees, and such other and further relief as this Court deems just. Date: August 18, 2003 Respectfully submitted, IRWIN, McKNIGHT & HUGHES Douglas G. ~Vliller, Esquire Supreme Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorneys for Plaintiff TAM Systems, Inc. 12 VERIFICATION The foregoing document is based upon information which has been gathered by.corporate counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. TAM SYSTEMS, INC. ~a~u~tn-Fle~ning,~T~easurer Date: August 18 , 2003 EXItIBIT "A" 08633 iMr' 1.2.48 South Mountain Road SYSTEMS. ,.~. Dillsburg. PA17019 (717) 432-9738 SALES PROPOSAL Date oposalI~o~hSubmittadc~,~ltraltO Mechanical Inc. (814) 362.6029 Octobe~r I, 2001 feet Locatioh--Give Directions 589 South'Avenue ', (814) 362~6376 W, State, Zip Code Bradford, Pa. 16701 , Ret: ProJect No. D.G.S. 573-19 (PH.6) UNIT TOTAL QTY. PART NO. DESCRIPTION I 3rock Conm~ercial Bin - Model 01815 10 degree Industrial roof system with handrail and toeboard I ~' diameter ~0' cave height ~qeoprcne headed bolt~ Bolt~on manhole for roof ~ . Walk door frame and door with knob Facto~ freight of materials to job Site - Labor to assemble Brock 01815 Commercial bin on prepared location at · ;- Camp Hill, Pa. Wage scale labor rote provided. 25,635.00 No sales tax included Commercial bin set on steel and welded in place by others. TWEixrI~i~FIVE THOUSAND SIX HUNDRED TItlRTY-FIVE DOLLARS NO CEhrrs ~ ~o,,.~ ($25,635.00 15% Depo_ sit with sim~ed contraot - $3.845.00 Materials due 1115011 delivery Labor due upon oomplefion Attepta e rnpnaat- he above prices, specifications and condifiOhs ~rb aati~f~Ctbh/and am hereby ac~. Y~are authored Signature _ TAM SY~MS. INC. (Seller) ~o~ ~e to do ~e ~rk as s~ified. Payment Will ~ made ~s Omlined abo~. D~e of Acce~ance: Signature _ (B~er) ~is oroposal together w~h the ~neral conditions ~ contract on the reverse side hem~ constitutes the entire contra~ between ~er and Tam Systems. inc. EXHIBIT "B" NORTH CENTR. AL MECHANICAL INC. IORTH CENTRAL MECHANICAL, INC. ;89 SOUTH AVE. 1RADFORD, PA 16701 ~HONE (814) 362-6029 :AX (814) 362-6376 TAM SYSTEMS, INC. 1248 SOUTH MOUNTAIN RD DILLSBURG, PA 17019 LETTER OF TRANSMITTAL DATE 11/26'/01 A3-rN: HOWARD RIFE ~E: CAMP HILL SCI YE ARE SENDING YOU THE FOLLOWING X Attached Under Separate Cover Via ;OPIES DATE SPECIFICATION/SPEC. NO. 11/26/01 APPROVED SUBMITTAL #S44-024 DESCRIPTI*N ASH SILO ENCLOSURE 'HESE ARE TRANSMITTED AS CHECKED BELOW: ForApproval X ForYourUse As Requested For Review& Comment -'or Bids Due Approved as Submitted Approved as Noted Returned for Corrections Prints Returned After Loan To Us {EMARKS: Resubmit Submit Return Copies for Approval Copies For Distribution Correcte~l Prints ~'OPY TO: Signed 589 SOUTH AVE. BRADFORD, PA 16701 PH:(814)362-6029 FX:(814)362-6376 RENOVATION OF BOILER PLANT CAMP HILL SCI SUBMITTAL COVER SHEET CONTRACTOR: NORTH CENTRAL MECHANICAL, INC. 589 SOUTH AVENUE BRADFORD, PA. 16701 SUBMITTAL # I S44-024 SUBMITTAL DESCRIPTION: DATE: I 11/16/01 ASH SILO ENCLOSURE SUBCONTRACTOR OF VENDOR: MANUFACTURER: TAM SYSTEMS ~248 SOUTH MOUNTAIN ROAD DILLSBURG, PA 17019 BROCK SPECIFICATION SECTION DRAWING NUMBER S 2.05 ARTICLE NUMBER N/A PER L. ROBERT KIMBALL PU O R S N O E L Y VARIATION/DEVIATION XXXX APPROVED APPROVED ASNOTED NAMEOFREVIEWER MI~AELSTEWART SIGNATURE / - [~ APPROVED [] APPROVEDASNOTED [] DATE TITLE VICE PRESIDENT NOT APPROVED REVISE AND RESUBMIT SIGNATURE/TITLE COMMENTS: EXHIBIT "C" SYSTEMS, INC. Dillsburg~ PA '170'19 00902? (717) 432-9738 SALES PROPOSAL ..o.., Subm~.d ~ "~"('S Z4) 362-6029 °"~_arch 4, 20O2 N~ C~ ~e~C· 589 South. Avenue · State, ~ Code : ~f~: ~je~.N~ D.G.S. 5~-19 ~.~, .~e (.)~( .~' "' ~¢) to Bm~ Co., ~.~ B~- Mo~l 01815 ~ 1 ~ l~f~ 18~~° b~e' ~ ~'~'~ o~ silo 6,~0.~ ~ ~ ~ ~ ~bl~ ~r T~ ~ p~o~l ~ ~c~ to ~ ~ ~8 hold ~ s~o for T~ ~ n~ ~ on bo~ of ~ silo ~o~ 2 - 3~ ~om.~ Of ~ for ~t SIX THOUSANDFOUR HUNDILED SIXTY DOLLARS NO CENTS ~o~r, ($ 6,460.00 uT)on ~ ',, Labor ~,upon e. nmpl~c,n ~~ .f ~r.~.~.~.--The above prices, specifications /(~ L~Ct~. ~'.~ and conditions are satisfactory and am hereby accepted, Yeu am authorized Signature to do the work as speeified. Payment will be made as outlined above. TAM SYSTEMS, INC?[Seller) Ho~at~[ ]~fe Date ~f Acceptanc~ Signature -- (Buyer} This proposal together with the general conditions of cerr[rect on the reverse side hereof constitutes the entire contract between Buyer and Tam Systems, inc. 10 ' This proposal valid for clays from above date. 11/2% Interest added to invoice if not paid within 30 days. EXHIBIT "D" UEFI UP UENbK~L ~bKV~UE~ kRX NU, II CONTRACT BO}~D ALL PERSO:~S BY TKESE PRESENTS, That we the undersigned ~,o_.TH cENTP3~L M~CH~ICA5, INC. 529 sOUTH AVENUE, BRADFORD, PA 16701 as Dri~.cipal and FIDELITY AND DEPOSIT COMPANY OF MARYLAND (Surety Company) P.O. BOX 1227, Baltimore, Maryland21203-1227 (AddresS] a Corporation organized and existing under the Laws of the State of ~a_ry~and and authorize~ to transact ~usine$$ in Pennsylvania, as sura~y, are held and flrr~ly bound unto the Department o~ General Services as hereinafter ~et forth, in the full and just several sums of (A) Two Million, Seventeen Thousand and ......... 00/100 Dollars (~2,017,000.0q) for faithful perforraance a£ the Contract as de~i~nated, in Paragraph "A"; and (B) Two Million, Seventeen Thousand and ......... 00/100 Dollars (~,017,~0.00) for pa~rment for labor, material equipment rental and public u~ility services as desi9noted in Paragraph Sealed with our respective seals and dates this .22nd day of January, 2001. JUN-Ud-UZ I'IU,N .VU:db ,AFl UKFI UP UklMI'KRL bbKVtU~.5 PR~ HU, ~1 (/ ~ER~S, the above Principal has entered into ~ ContraCt with the Dep~rtment of General Services daSed the ~jl~day of 2001 for Contract No.~G.S. phase 6 f~ U~e ~;AC Const~ction, Ran~vat~o~ q¢. %n~titutlon/Boiler ~ousa and Upda~ Ma~n Electric~~ .... upon certain te~s and conditions in said Con~rmct more particularly menZioned; and ~ER~S, I~ is one of the CondZtzon of the Award of Dmpar~mmnt of General Se~ices pursuit ~o which 5aid Con~rac~ is about to be entered into, that the~e pre~ents ~e exeCUted; NOW, TME~FO~, the joint and several conditions of this F, U5 o~ligation are such: A. That, if the at:)Ove Principal as Contractor shall well and faithfully do and perform the things agreed by it to be dons and performed according to the terms of said Contract and General Conditions, including the plans and specificatiOni~ therein referred to and made part thereof, a~d such alteri~tions as ~ay b~ made in said plans and specificatiOnS as thereim ~rovlded and which are hereby made part of thim Bond the same as though they were fully set Korth herein, ~d sb~!l inde~ntfy and save har~alesS the Department cf General Services and all of its officerS, agents and employees {rom any expense incurred through the failure of said Contractor to complete ~he work mm speci~iied and for any damages growing out of the manner of perfo~Cei0f said Co~tract by said Contractor or its subcontractors, u~ ~=~ ~ their agents or servants, including, but not li~iited to, patent trademark and copyright infringements, then this part of this obligation shall be void; otherwise, it shall be a~%d relr~in i~% full force and affect, ~. That, if the above Principal shall and will promptly pay or cause to be paid all sums cf money which ntay be due by the principal or any of its suJpcontrastors to eny person, co- pertnership, association or corporation for al! ~aterial furnished and labor supplied or perfor~ned in the p~osecutlon of the Work, whether or not the said ~aterial or laboi~.entered into and ~ecome co~ponent parts of the Work or improve~entS conter~inTated, and for rental of eq~/ipmen~ used., rendered by public utilities in, or in connection with, the prosecution of such Work, then ~his part of tlxis cbli9ati°n shall be void; otherwise, it shall be s_nd ren~ain in full. force and effect. C. It is further agreed tha~ any alteratlon~ which raay be made in the terms of the Contract or in the Work to he done or materials to be furnished or labor to be supplied or performed, or e~ipment to be rented, or public ugi%ity se~;ices to be rendered, or the ~ivin9 by the Department of C~enerml Se~~;ices o~ any extension of time for the performance of the Contract, or the reduction of the retained percentage as pe~itted by the Contract, o~ any other forbearance on the part of either the Department of General Services or the ?rincipa% to the other, shall not in any way release the principal and the surety or I~, U4 JUN-U,3-UZ 1'1UN UU:db HF1 U~'F[' UP UP. DIKKRL ~bKVIU~.U bRA NU, f[ ' ' · ' their heirs~ executors, sureties or either or any of administrators, successors or assigns, from bhe:~= l;ab21~ y HereUnder; notice to the surety or sureties of ~ny such alterations, extension or forbearance being hereby waive~ D. The princtpzl and Sura~y hereby joint%y r~nd severally a~ree wi~h ~he obligee herein that every persor~, co-par~nership, association or co~Oration which, whether ~s s~con~ractor or as a person otherw&se entitled to the banefit~ of this Bond, has furnished ~tarial or supplied or performed labor or re;%ted e~ipment used in the prosecution of the Work as above and any p~lic utility, which has rendered se~lCe.=, %n, or in co~eCt~on with, the prosecution of such Work,. and, which has no~ been paid in fu~l ~he=efor, may sue in asSUmpslb o'a this Bond in his, their, o~ its name and prosecute the same ~o final jud~ent for such sum or su~ as ~y be justly due hin~., them, or its, have execution thereon; provided, however, that tk, e Depar=men~ of General Se~¢ices shall no= be li~le for the pa~nt of any costs or e~penSes of such ~uit to a third party under any theo~ of law of equity. E. Recovery by any persons, co-partnershiP, a~sociation or corporation hereunder is s~bject to the p=ovisions of the Act of May 15, 1998, P.L. 258, No. 57, 62 Pa.C.S. Sections 10%-4509, as amended, which Act is incorporated herein and made a part hereof, as fully and completely as though its provisions were fully and at length herein recited, except that, where said Act ~', Ub JUN-Ud-UE I'IUN US;,~b l~l'l D~'Yl Ut' L~bHEK~L ~bKVIUEb PH/,, NU, II.[llZd58~ W, UU refers to ~.he Co~.mo~%waalsh of ?annSylvania or a Department thereof, i~ ~s dea~ned to refer to the Departmsn~ of General Services, IN WITNESS WHEREOF, The said Principal and Surety have duly executed this Bond under ~eal the day and year above wz:it%en. ~tteSt:  Date MICHAEL J- g~EWART Agent Date Approved as ~o Legality and Fora ' Counsel Date NORT~ CENTR~dZ MECIIAI~IEL%L, INC, Corporation FIDELITY AND DEPOSIT COMPANY OF MA~YI.,AND Surety , ~] '~ ' JUIX-U.~-UE I'[UN UU;..lb HI'I DbFl Ur U'bHbNRL 5bi~V[Ub~ hR~/ FlU, /~f[(>'~.t~ F, UI TATE OF N~'~k%K ) ouNTY OF vock~ ) Bond No. 8091103 On this ~ ~day of ~c~c~ , ~Qc~) , before me persona%ly came FPJ%l~K ~COP]~TTI JR. to me ~o~, being ~worn that he ie ~he ~resid~n~ of ~ ~ha~ he ~ows the said seal o~ such eXeCUted the ~ove in~ tz~ment; co~oration; that t~e seal affixed to said inst~m~t is s~ch co,orate seal; ~d t~t it was so affixed by the or,er of the Board of Directors of said co~oratfon, ~d that ke si~ed his name thereto ~y like order. ..... ~WO~ tO a~ ac~owledged o~ the ~ove ~ o~ ~ ) U E T ¥ O~1 this 22n~ day of ja~uary,2a01 , befo~:e m~ pezso'~lly c~ ~XN T. ~ ~o ~ ~o~ who remi4e~ i~ Erie ~%~ ~d duly swo~ ~d says that he is the AttO~ey-i~-~aut of the FID~LI~ ~ DEPOSIT CO~ OF ~ ~d ~ows the co.orate seal ~a t~t it was af~ixe~, thereto by authority of the Power o~ A=to~ey of said ComplY; o{ which a certifi~ copy is attached; ~d t~u he si~.e~ said inst~ment as ~ Atto~ay-in-FaCt of said Swo~ to ~d aC~owledged on the ~we ~ate,_ ~ _ '~ I D I V I D U A L STATE OF N~ YORK COUNTY OF On this ~ -- day of 19 , before m%~ personally came to me known and known to me to be ~he person described in and who executed the foregoing in.strmment and he thereupon acknowledged to me tka~ he executed the same. sworn to and acknowle~ge~ on tke a~oYe date, JUN-Ud-UZ FIUN UB;dU Hi~ DbF'l UF U~NbNRL 5bNVtUb5 bR~ NU, FIFFFZ~UNU F, UB Power of Attorney FIDELITY AND DEPOSIT cOMPANY OF IVU RYLAND HOME OFFICE: P.O. BOX 1227, BALTtMORE, MD 21203-1227 Know ALL MEN BY THESE pILESEIq'TS: That the FIDELITY AND DEPOSIT coMPANY OF MARYLAND, a corporation of the Stale of Maryland., by W. B. WALBKECIq2ER, Vice-President, amd T. E. sMITH, Assistant Secretary, in purSUance of authority ~m-anted by Article VI, Section 2, .Laws Comply, which are ~et fodh on date hereof, does hereby nominate, reverse side hereof and are hereby certified lo be in ~ll constirate and appoint Kevin T. cRAIG and Eveliae K, true and lawful agent and Attomey-in-Fact, to make, ex~ act and deed: say and all bonds and present, shall be as b[nding upon said Company, executed amd acknowledged b) proper perSOgs-:- -- ==: --' :-' The said Assi~am Sccre~qW does hereby Article 'VI, Section 2, llq WITNESS WH2EREOF, fl~* ~aid aff~.t*d the CorpOrate Seal of the Sepmmbcr, A.D. 199S. ^TTI~Sl-: FIDELITY AND [ T. E. Smith of Amherst, New York, EACH its for, al'~d on it~ behalf as rower'y, and as ks t bondS or under'rakings in pur~.mnce ofthes* hntenU an3 purpo~s, "~ tf they had been duly a~y at ks office in B~ltknore, Md-, in their own $~'t forth on the rever~e sk!e hereof is a Irue copy of ecretary have hereunto .mbscribed ~heh' pintoes ?md coMI~ANY OF N~YLAND, ~ 16th day o[' COMPANY OF MARYLAND By: W. B. Wadbre~h~ Yice-Pr~ident ~ ofMar~l=xl } ss: Om thls 16th ~y of Sepmm~, A,D. 1998, ~f~ ~c su~r, a No~ ~blic of ~e Sram of.~ du~ ~sionM ~d qualifi& ~e W, B. W~, Vig-~gidenk ~d T. ~E. Smi~, ~s~ ~ of ~e ~DELI~ A~ DE.SIT cO~A~ OF ~, m me ~n~ ~o~ to ~ ~e ~di~~ak ~d offic~ d~d ~ ~d who ~u~ ~e pr~g ~ ~d ~ each ac~owl~ ~e ~fion of~e ~e, ~d b~g by m~ duly ~om, ~v¢~ly ~d ~h f~ h~lf d~s~ ~d ~, ~a~y ~* ~* ~ o~ of~ Comfy Co~ ~ ~d ~k si~a~ ~ such offi~ w~ ~Y affix~ ~d sab~ m ~e ~d ~t ~ ~e a~od~ ~d d~on of~* ~d Co~on. ~ ~s~O~ ~OF, I have her~xo ~ my h~d ~d a~*d my 0fficifl S~ ~e ~ ~d y~ fl~ a~ve My C'o¢i=iCExp~: A~ 1, 2~0 Lt428432,.6895 ,JUN-J3-gZ HUN 08:3~ AM FAX NU, .-~SE'TS t2~,BS2,915 : 405,909 S~oc~ ....................................................................... Cash L~ E~'dcs ~md Of~ces ~ Sh~ ~e~ ~en~ .............................. aid) ..... p~w~s in Ca~se ~on 16~01 ~ S a ~ ~t cm 7~2,114 ~ for T~ ~dE~ 2 ~48 . , ........ 5 3,330,909 ~, , ~g:~$ ~tement is a co~ e~t ~ ~ ~ ~ l~fi~ of ~e ~d Company on ~e 30 ~ ~y ff l~e, 1959. ?, gU EXHIBIT "E" JUN-14-200~PRI 0~9 PN T~N SYSTENS 717+432+8389 P, 02 Surety and Financial Claims ZURICH P,O. Box 17138 Baltimore, MD 21297 Street: 3910 Keswick Road, 5~ Floor Baltimore, MD 21211 Phone: 1.800-654-5855 ext. 2 Fax; 1-800-329-6106 Email: susan,kerbel@zudchna.com Mr. Galen Julius, Vl~ 'rAM System% Inc. 1248 S. Mountain Rd. Dillsburg, PA 17019 ' 9 June 12, 200. Re: Claim #638 0032247 Principal: North Central Mechanical Project: Renovation State Correction Institution, Ctu~p Hill, PA Dear Mr. J ulitt,: This ~mtter is being handled on behalf of the Fidelity & Deposit Company of Maryland_ This will aclmowledge receipt of yom' faxed letter dated June 6, 2002. I am in the process o£ conumtlng Nm~rh Central Mechanical to obtain its position retailing yom claim and will be bad~ in touch with you shortly. Please be advised that this action is taken at this time without waiver of or prejudice ~:o any of the rights and defenses, past or present, kdmwn or tmlmown, which either Fidelit7 and: Deposit Company of Marjrland or North Central Mech~rdcal Company may have in this matter. · Sin cea'e y, ........ By: Susan Get2 Kerbel Clm, Counsel EXHIBIT "F" JUL-03-200~ ~E~ ~1-:25 ~N TAM SYSTEMS [~1 717i432+8389 ,, P. 02 O Zu~dlNo~Amecica Surety and Financial Claims ZURICH P.O. Box 17138 Baltimore, MD 21297 Street: Phone: Fax: Email: 391(J Keswick Road, 5'" Floor Ral~more, MD 21211 1-800-654-5855 ext. 2 1-80~0-329.6106 susan.kerbel@zurichna.com 07'0302 M~., Galen Jul/us Tstm Systems, Inc. 1248 S. Mount:fin R~.d Dillsbuzg, PA 17019 Claim # 025 0032247 Pfinclpa~ NoJ:r~ Central Mechanic~l, Inc. Oblig~e: PA Dept o£Genetal S~g_ccs De. az Mr. Julius: I have now had an oppo~L~nlt¥ to revi~ the mate~.l, supl -~d by North Cemtal MeChanic.al Inc, with regazd to your ~M,~ fo~ ~I~,145.00. Udommately, due to ~e hnguage in thc purchase orde~ ~ec2.tifing Tam to "field verLfy the silo prior no fal=icafion", we ar.e Unable to make payment to Taln systec,~. , past or p~e.qent, lmowu pr unknown, which either F~D or North Central M~hanical may ha~e in ~ Very m~ly you~, Susan Getz Kerbel Chims Attorney CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: THEODORE A. ADLER, ESQUIRE REAGER & ADLER, P.C. 2332 MARKET STREET CAMP HILL, PA 17011-4642 Date: August 18, 2003 IRWIN, Mci(NIGHT & HUGHES Doug~l~s G. ~Iiller, Esquire Supreme Co~h't I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Plaintiff TAM Systems, Inc. .I TAM SYSTEMS, 1NC., Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW NORTH CENTRAL MECHANICAL, : 1NC., FIDELITY & DEPOSIT COMPANY: NO. 2003-2750 OF MARYLAND and ZURICH NORTH : AMERICA SURETY, : Defendants : NOTICE TO PLEAD To~ TAM SYSTEMS, INC. c/o Douglas G. Miller, Esquire IRWIN, McKNIGHT & HUGHES 60 West Pomfret Street Carlisle, PA 17013 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RI~SPONSE TO THE ENCLOSED DEFENDANTS' ANSWER TO COMPLAINT, WITH NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Date: September 8, 2003 Respectfully/submitted, REAGER//),, ~TLER,~P.C. The6dor¢ A. Adler, Esquire Attorney I.D. No. 16267 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Defendant TAM SYSTEMS, INC., Plaintiff NORTH CENTRAL MECHANICAL, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW INC., FIDELITY & DEPOSIT COMPANY: NO. 2003-2750 OF MARYLAND and ZURICH NORTH : AMERICA SURETY, : Defendants : DEFENDANTS' ANSWER TO COMPLAINT~ WITH NEW MATTER AND COUNTERCLAIM Admitted upon information and belief. Admitted. Denied. Fidelity & Deposit Company of Maryland is part of Zurich U.S. which is a member of Zurich Financial Services Group. It is admitted that the address set forth in paragraph 3 of the Complaint is the correct address for Fidelity. 4. Denied. Zurich North America Surety is not a corporation. Rather, it is a subsidiary of Zurich U.S., which is a member Financial Services Group. It is admitted that the address set forth in paragraph 4 of the Complaint is the correct address for Zurich North America Surety. 5. Denied. Defendant North Central was not the general contractor for the Project. North Central was the mechanical prime contractor for the Project. 6. Admitted. 7. Admitted in part; denied in part. It is admitted that L. Robert Kimball & Associates (hereinafter "Kimball"), the consulting engineer retained by Department of General Services of the Commonwealth of Pennsylvania (hereinafter "DGS"), the owner of the Project, prepared plans for the Project. The remaining averments seek to characterize the contents of a written document which speaks for itselfi To the extent that the averments of paragraph 7 are inconsistent with said document, they are denied. 8. Admitted. In further response, it is averred that Kimball prepared a drawing identified as drawing number S2.05R. The drawing bears a date of September 20, 2001 and describes an "ash silo plan and sections." The structural notes on the drawing state: "Contractor shall verify all existing dimensions, elevations and framing shown on the structural drawings which pertain to any new work prior to beginning fabrication of materials and/or prior to starting any new construction. Contractor shall notify engineer immediately if any existing conditions are found to be in conflict with structural drawings." 9. Admitted in part; denied in part. It is admitted that Exhibit "A" is a proposal submitted to Defendant North Central which bears a date of October 1, 2001. The remaining averments seek to characterize the contents of a written document which speaks for itselfi To the extent that the averments of paragraph 9 are inconsistent with said document they are denied 10. Denied. The averments of paragraph 10 seek to characterize the contents of a written document which speaks for itself. To the extent the averments of paragraph 10 are inconsistent with said document they are denied. 11. Denied. Exhibit "B" is not an acceptance of Plaintiff's proposal. To the contrary, on November 8, 2001, North Central sent a purchase order to Plaintiff which Plaintiff signed on November 30, 2001 and returned to North Central. 12. Admitted in part; denied in part. It is admitted that North Central paid a deposit of $3845.00. It is denied that the purchase order was placed on hold because of"height concerns." To the contrary, no such hold was ever placed on the purchase order because of "height concerns." 2 13. concerns." 14. Admitted. In further response it is averred that the hold was not due to "height Denied. After reasonable investigation, Defendants are without sufficient information to form a belief as to the troth of the averments of paragraph 14 of the Complaint. Said averments are, therefore, denied and proof is demanded at trial. 15. Denied. After reasonable investigation, Defendants are without sufficient information to form a belief as to the truth of the averments of paragraph 15 of the Complaint. Said averments are, therefore, denied and proof is demanded at trial. 16. Denied. It is averred that North Central unsuccessfully attempted to install the enclosure on February 28, 2002. 17. Denied. On February 28, 2002, North Central m~tified the Plaintiff that it was unable to install the enclosure because it did not conform to the contract plans. 18. Admitted in part; denied in part. It is admitted that Exhibit "C" is a proposal from the Plaintiff dated March 4, 2002. The remaining averments seek to characterize the contents of a written document which speaks for itself. To the extent the averments of paragraph 18 are inconsistent with said document they are denied. 19. Denied. North Central responded to the proposal by letter dated March 12, 2002. 20. Admitted in part; denied in part. It is admitted that letters dated March 12, 2002 and March 25, 2002 were sent by North Central to the Plaintiff. The remaining averments seek to characterize the contents of written documents which speak for themselves. To the extent the averments of paragraph 20 are inconsistent with said documents they are denied. 21. Denied. North Central notified the Plaintiff on ,april 1, 2002 that the hatch on the top of the enclosure did not line up with the existing ladder as required by plan drawing S2.05R. 3 22. Admitted in part; denied in part. It is admitted that Plaintiff corrected the misalignment problem. As to the date on which the modifications were made, after reasonable investigation, Defendants are without sufficient information to fbrm a belief as to the truth of this averment. Said averment is, therefore, denied and proof is demanded at trial. 23. Admitted in part; denied in pan. It is admitted that the Plaintiff made a payment to North Central in the amount of $2,647.00. The remaining averments are denied as a legal conclusion. In further response, it is denied that any additional :money is due the Plaintiffby North Central. 24. Admitted in pan; denied in pan. It is admitted that North Central has not paid the Plaintiffthe sum of $19,143.00, which Plaintiff alleges it is due. The remaining averments are denied as a legal conclusion. In further response, it is denied that North Central has failed to pay any money legally due the Plaintiff. COUNT I: BREACH OF CONTRACT TAM SYSTEMS~ INC. v. NORTH CENTRAL MECHANICAL~ INC. Defendants incorporate herein paragraphs 1 through 24 of their Answer to the 25. Complaint. 26. Admitted in pan; denied in pan. It is admitted that a proposal was submitted by the Plaintiff to North Central. It is denied that said proposal was "in accordance with the Project drawings provided to the Plaintiff," or that the proposal was accepted by North Central. Denied. North Central incorporates herein its answer to paragraph 11 of the 27. Complaint. 28. Admitted in pan; denied in part. It is admitted that the "commercial bin" was identified in the Kimball plans. It is denied that the bin supplied had the correct dimensions for 4 the Project. Rather, the "bin" supplied by the Plaintiffwould not fit over the ash silo it was to enclose. 29. Denied. After reasonable investigation, Defendants are without sufficient information to form a belief as to the averments of paragraph 29 of the Complaint. Said averments are, therefore, denied and proof is demanded at trial. In further response, it is averred that the "commercial bin" was not fabricated with dimensions that would allow it to be installed at the Project by North Central. 30. Denied as a legal conclusion. In further response it is averred that the materials fabricated and supplied by the Plaintiffwere not consistent with the actual dimensions of the ash silo because Plaintiff failed to verify said dimensions prior to fabrication. 31. Denied as a legal conclusion. 32. Denied. The averments of paragraph 32 seek to characterize the contents of a written document which speaks for itself. To the extent the averments of paragraph 32 are inconsistent with said document they are denied. In further response, it is averred that North Central did not accept the proposal. To the contrary, North Central issued a purchase order to the Plaintiff which did not provide for interest at the rate of 1½% per month. 33. Denied as a legal conclusion. In further response, it is expressly denied that North Central has any legal obligation to pay Plaintiff any additional money. WHEREFORE, Defendant, North Central Mechanical, Inc., requests this Honorable Court to enter an order dismissing Count I of Plaintiff's Complaint. 5 34. Complaint. 35. COUNT II: UNJUST ENRICHMENT TAM SYSTEMS, INC. v. NORTH CENTRAL MECHANICAL~ INC. Defendants incorporate herein paragraphs 1 through 33 of their Answer to the Denied as a legal conclusion. In further response, it is averred that Defendant North Central incurred substantial costs in order to make modifications to the commercial bin selected by the Plaintiff for the Project as more fully set forth in the New Matter to the Complaint. 36. Denied. Defendant North Central did not prepare any drawings for the Project. Rather, the drawings were prepared by Kimball. The drawings were incorporated into the contact between Plaintiff and North Central. The drawings required Plaintiff to field verify the size of the ash silo before fabricating the enclosure. Plaintiff did not field verify the size of the silo. 37. Denied as a legal conclusion. In further response it is averred that Defendant North Central has paid the Plaintiff the amotmt of money to which the Plaintiff is legally due. 38. Denied. Defendant North Central did not receive the full benefit of the services and materials supplied by Plaintiff. To the contrary, the commercial bin supplied to Defendant North Central by the Plaintiff required considerable modifications by North Central in order to make it comply with the Project plans. These modifications were made at the expense of the Defendant North Central. 39. Denied as a legal conclusion. In further response, Defendant North Central incorporates its response to paragraph 38 hereofi WHEREFORE, Defendant, North Central Mechanical, Inc., respectfully requests this court to enter an Order dismissing Count II of Plaintiff's Complaint. COUNT III: CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT TAM SYSTEMS~ INC. v. NORTH CENTRAL MECHANICAL~ INC. 40. Defendants incorporate herein the averments of paragraphs 1 through 39 of their Answer to the Complaint. 41. Denied as a legal conclusion. 42. Admitted. 43. Denied as a legal conclusion. 44. Admitted. 45. Denied as a legal conclusion. 46. Denied. Plaintiff did not perform in accordance with the requirements of the contract. In particular, Plaintiff failed to supply an ash silo enclosure that was properly sized so that it would fit over the ash silo. 47. Admitted. 48. Admitted in part; denied in part. It is admitted that North Central paid $2,647.00 in response to the Plaintiff's invoice dated February 22, 2002. 'Fo the extent that averments of paragraph 48 imply or infer that North Central has any legal obligation to pay Plaintiff additional money said implications and inferences are denied as a legal conclusion. 49. Denied. North Central has failed to pay Plaintiff any additional money because North Central incurred substantial additional costs in order to modify the ash silo enclosure supplied by the Plaintiff. In further response, North Central incorporates herein the averments contained in paragraphs 67 through 81 of its New Matter. 7 50. Denied as a legal conclusion. 51. Denied. North Central was not paid for the substantial modifications and material it supplied in order for the enclosure to fit the ash silo. 52. Denied as a legal conclusion. In further response, to the extent that paragraph 52 implies or infers that North Central wrongfully or unreasonably failed to make payment to the Plaintiff said implications and inferences are expressly denied. To the contrary, North Central incurred substantial additional costs to modify the ash silo enclosure provided by the Plaintiff. 53. Denied as a legal conclusion. In further response, to the extent that paragraph 53 implies or infers that North Central wrongfully or unreasonably failed to make payment to the Plaintiff, said implications and inferences are expressly denied. To the contrary, North Central incurred substantial additional costs to modify the ash silo enclosure provided by the Plaintiff. 54. Denied as a legal conclusion. 55. Denied as a legal conclusion. In further response, to the extent that paragraph 55 implies or infers that North Central wrongfully or unreasonably failed to make payment to the Plaintiff, said implications and inferences are expressly denied. To the contrary, North Central incurred substantial additional costs to modify the ash silo enclosure provided by the Plaintiff. WHEREFORE, Defendant, North Central Mechanical, [nc., respectfully requests this Honorable Court to enter an Order dismissing Count III of the Complaint. COUNT IV: CLAIM AGAINST SURETY ON SUBCONTRACTOR'S BOND TAM SYSTEMS~ INC. v. FIDELITY & DEPOSIT COMPANY OF MARYLAND and ZURICH NORTH AMERICA SURETY 56. Defendants incorporate herein paragraphs 1 through 55 of their Answers to the Complaint. 57. Admitted. 58. Denied as a legal conclusion. In further response, it is admitted that North Central was to provide payment and performance bonds in order to receive the contract from the DGS for the Project. It is denied that Exhibit "D" attached to the Complaint is a copy of the payment bond. To the contrary, Exhibit "D" attached to the Complaint is a copy of the performance bond. 59. Denied. A performance bond is not issued to protect material suppliers and subcontractors on a project. Rather, a performance bond is issued for the sole protection of the owner, which in this case was the DGS. 60. Denied as a legal conclusion. 61. Denied. Plaintiffhas not received payments of $9,107.00. The remaining averments are denied as a legal conclusion. 62. Denied. The averments of paragraph 62 seek to characterize the contents of a written document which speaks for itselfi To the extent the averments of paragraph 62 are inconsistent with said document they are denied. 63. Denied. The averments of paragraph 63 seek to characterize the contents of a written document which speaks for itself. To the extent the averments of paragraph 63 are inconsistent with said document they are denied. 64. Denied as a legal conclusion. In further response, it is denied that the Plaintiff has complied with the requirements contained in the payment bond. 65. Admitted in part; denied in part. It is admitted that the Defendants have not paid the Plaintiffthe sums it is claiming in the lawsuit. To the extent the averments of paragraph 65 imply or infer that said sums are due and owing, said implications and inferences are denied as a legal conclusion. 9 WHEREFORE, Defendants, Fidelity & Deposit of Maryland and Zurich North America Surety respectfully request that this Honorable Court enter an Order dismissing Count IV of the Complaint. NEW MATTER Defendants incorporate herein to paragraphs 1 through 65 of their Answers to the 66. Complaint. 67. On November 8, 2001, North Central issued a purchase order to the Plaintiffto provide a Brock Commercial Bin Model No. 85-01815 ash silo enclosure. The purchase order was accepted by Plaintiff as evidenced by the signature of the Plaintiff's Vice-President on the purchase order. A copy of the purchase order is attached hereto as Exhibit "A". 68. The purchase order required the Plaintiff to verify the dimensions of the ash silo prior to having the enclosure fabricated. 69. Plaintiff released the silo enclosure for fabrication without field verifying the dimensions of the silo. 70. The silo enclosure fabricated by the Plaintiff was received by North Central at the Project in February, 2002. 71. On or about February 28, 2002, North Central atlempted to install the enclosure but could not do so because the enclosure fabricated by the Plaintiff was not large enough. 72. On February 28, 2002, North Central notified the Plaintiff that the enclosure fabricated by Plaintiff did not fit the ash silo and requested that Plaintiff provide a solution to the problem. 10 73. On March 4, 2002, Plaintiff proposed to supply a thirty-two inch ring to add to the enclosure so that it would be able to enclose the ash silo. The cost for the additional ring was $6460.00. 74. On March 5, 2002, North Central proposed two (2) options to Kimball to enlarge the enclosure so that it would fit over the silo, one of which was the Plaintiff's proposal. A copy of the cover letter along with the two (2) proposals is attached hereto as Exhibit "B". 75. On March 8, 2002, North Central received a response from Kimball to the March 2, 2002, letter. Kimball advised North Central that DGS would not pay for any modifications because of the failure by the Plaintiff to field verify the height of the existing silo prior to having the enclosure fabricated. Included with the response was a drawing prepared by the project engineer directing North Central how to correct the problem. A copy of Kimball's response and the drawing is attached hereto as Exhibit "C". 76. Kimball's letter directed North Central to add galvanized steel members to the enclosure as detailed in the aforementioned drawing. 77. On March 12, 2002, North Central notified the Plaintiff that it intended to backcharge Plaintiff for the cost of performing the additional work because it was due to Plaintiff's failure to verify the existing ash silo height. A copy of the March 12, 2002 letter is attached hereto as Exhibit "D". 78. On March 22, 2002, the Plaintiff responded to North Central's March 12th letter. In that letter, Plaintiff indicated that it was not their responsibility to verify the height of the ash silo only to verify the materials it intended to provide were correct. A copy of the March 22nd letter is attached hereto as Exhibit "E". 11 79. On March 25, 2002, North Central responded to the Plaintiff's March 22, 2002 letter. In particular, North Central noted that the Plaintiff's representatives on the site were specifically instructed not to fabricate the enclosure until they w~rified the height of the silo. A copy of that letter is attached hereto as Exhibit "F". 80. North Central completed the modifications to the enclosure in May, 2002. The cost to North Central to perform such work was $19,143.00. 81. North Central sought payment from DGS for the cost of the additional work.. DGS denied North Central's request because the contract drawings required Plaintiffto verify field conditions before fabricating the ash silo enclosure which Plaintiff failed to do. 82. On May 31, 2002, North Central paid to the Plaintiff $2,647.00 representing the balance due on Plaintiff's contract less the cost to North Central of making the required modifications to the enclosure. 83. The bond attached to the Complaint and on which Plaintiff has based its claim against Defendants Fidelity & Deposit and Zurich North America is a performance bond. 84. The performance bond provides that Defendant Fidelity & Deposit is bound to the obligee, DGS, not to the Plaintiff. 85. Plaintiff has failed to state a cause of action against Defendants Fidelity and Deposit and Zurich North America. 86. The performance bond attached to the Complaint does not create any obligation on the part of the Defendants Fidelity & Deposit and Zurich to pay Plaintiff and Plaintiff has no rights under said performance bond. 87. Plaintiff's claim may be barred by the applicable statute of limitations. 12 88. contract. 89. 90. Plaintiffhas been paid in full the amount of money to which it is due under its Plaintiff's claim may be barred by the equitable doctrine of estoppel. If Plaintiff prevails and this court finds that the Kimball drawing of the ash enclosure was an error and Plaintiff had no contractual obligation to field verify the dimensions of the ash silo, such a holding would result in North Central having a claim against DGS and/or Kimball for the additional costs incurred. 91. The decision of this court may constitute res judicata and/or collateral estoppel as to DGS and/or Kimball. 92. DGS and/or Kimball are indispensable parties to this action. 93. This court lacks jurisdiction over the subject matter of this claim. 94. Plaintiffs claim is based upon a written contract. Therefore, Count II of the Complaint (Unjust Enrichment) must be dismissed. WHEREFORE, Defendants respectfully request this Honorable Court to enter an Order dismissing Plaintiff's Complaint. COUNTERCLAIM 95. The averments of paragraphs 1 tkrough 92 of this Answer and New Matter are incorporated herein by reference. 96. Because the Plaintiff failed to supply an ash silo enc, losure that fit the existing silo, North Central incurred costs of $19,143.00 to make modifications that Kimball, acting for DGS, directed it to perform. 13 WHEREFORE, Defendant, North Central, respectfully requests this Honorable Court to enter judgraent in its favor and against the Plaintiff in the amount of $19,143.00. Date: September 8, 2003 Respectfully 55~bmittfxiT, REAGER &?d~, LFTR, P.C. Theodo/~te A!/A~dle! E s~q ~i m/~' Attorney I.iD. No. 16267 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attomeys for Defendants 14 Exhibit A 589 SOUTH AVENUE BRADFORD, PA 16701 pHONE (814) 362-6029 FAX (814) 362-6376 Vendor TAM Systems, Inc. 1248 Sou~ Moumai= Rd Dillsb~g, Pa 17019 A~: Hov~t R.~c URCHASE ORDE R SHIP TO CAMP l-IlI.~. CORKEC~IONAL INS il! uTE C/O NORTH CENTRAL Iv~CHANICAL, INC. 2520 LISBURN ROAD C'~4P ~ PA 17011 PROJECT - ROVIDE AND ASSEMBLE BROCK CO~ . ' RATE DRAWINoS. ALL STOL SF, X~L S nr,.,,=,,~.C~...n~_. MOD~ 0IS I~ m ACCO~.DANC~ wrra ~,,to ~ PROVIDED E OF .... ,,-.,, · ,,.. ,,,.-,.,GIN AND STEEL CERIII,-i INEE1LS 25,635 00 CATION.q SHALL BE 'INSUP,,ANCE CERTn~," ........ ~ , , ~','*-~,~. *'.I'IALL BE PROVIDED CEP. T1F[ED PAYROLL PER TIIE ATTACHED · FIELD SHALL BE PROVIDED FOR. ALL ON SITE AS VERIFY SILO PRIOR TO FABRICATION SEMBLy WORK · EQUIPMENT AND MATERIAL COVERED BY TI"HS PURCHAs£ SHALL BE 1~ ELiVERED WiTI. flN 4 WEEKS · ALL EQI.~PIv~NT AND MATERIAL SHALL BE IN $1'alCT ACCORDANCE WITIt TIIE CONTRACT DOCUMENTS Total Exhibit B March S, 2002 L. Robert Kimball 615 Wes~ Highland Avenue Ebensburg, Pa. 15931 Attn: Terry Shulsky Su~: SCi Camp Hill Contract No. DGS $73-19 Phase Ash Silo Enclosure De~r Terry Attached please find ~orth Central -~ee~a~icai,s Extra Work Order ~0 with two options available to ex~end the ash silo to ma:ch exi~g condition. Option I is the most economical and expeditious and w~ll prov/de for eompletio~ of the enolosure by' March IS, 2002 if approvnl is received no later than eady naomi,,,, orA-larch fi, 2002. Please review the attachments and respond with a proper course of action. If you bare any questions please contact us. Sincerely ~ice Presidem cc: Charles Coy Peter Verbos 589 SOUTH AVE. BRADFORD, PA 16701 PH:(814)362-6029 FX:(814)362.-6376 EWO 20 OPTION 2 JOB ~ DATE TO M~ARCH 5, 2002 L. ROBERT KIMBALL 615 WEST .HIGHLAND AVENUE EBENSBURG. PA 15931 A'FI:N: TERRY SHULSKY PROJECT BOILER HOUSE RENOVATION .PROJECT NO S7,I.19 PHASE .INSTALL ADDITIONAL RING ON ASH SILO TO MATCH .EXiEiTiNG CONDITIONS ,NOTE ADDITIONAL RING IS AVAILABLE WITHIN 3 WEEKS ARO PROJECTED COMPLETION IS 4/5/02 As per the at[ached breakdown we propose as an ADD to our contract: .TWENTY THOUSAND THIRTY FNE _DOLLARS I $ 20,03S j This proposal is valid for 20 days Extension of contract time: Sincerely _~______~ President r~l~e one' i~ mc~KI w~ln U~e InGIc~I]K/ ACCEPTED DATE Im ;n~iu~ed in tnb ~1 C=N/'e~' r~ t~ right fer L-,t,'~en of 589 SOUTH AVE. BRADFORD, PA. 16701 PH:(814)362-6029 FX:(814)362-6376 EWO 20 OPTION I JOB ~ DATE TO MARCH 5, 200,2 L. ROBERT KIMBALL 615 WEST HIGHLAND AVENUE EBENSBURG, PA 15931 ATrN:/r-~cRY SHULSKY PROJECT BOILER HOUSE RENOVATION PROJECT NO 573-19 PHA~E B INSTALL ADDITIONAL STRUCTURAL STFt::I_ TO RAISE SILO 20" TO MATCH FIELD CONDITIONS. ,,NOTE STRUCTURAL S'I'I~I=L IS AVAILABLE FOR DELIVERY ON 3111102 PROJECTED COMPLETION IS 3115102 .As per the ~__~_che~ breakdown we propo&e as an ADD {o our .FIFTEEN THOUSAND NINE ,HUNDRED EIGHTY SlX ., DOLLARS I $ This proposal is valid for 20 days Extension of Contract time: President ACCEPTED DATE Lr"~_ 4. 589 SOUTH .aVE. BRADFORD, PA 16701 PH:(814)362-6029 FX:(814)362.6376 Exhibit C NO[kTH f'.~NTR~L MECHKNICA.L INC. ... ~ %,, FILE COPY To: Z ~ X~.. ATTN: F>~X#: FROM: ~',~ No. of pages including cover: MESSAGE: 589 SOUTH AVE. ~RADFORD, PA 16701 PH:(814)362-6029 L.. Robert Kimball & Associates · I__ DATE_ JOB NO._ ; I .... i 1;i -I I--T-~ Exhibit D March 12, 2002 Tam Systems 1248 South Mountain Road Dillsburg, Pa. 17019 Attn.: Laurin Fleming Subj: Silo Enclosure Dear Laurin North Central Mechanical unsuccessfully attempted to install the Tam Systems fabricated Ash Silo Enclosure on 02-27-02. The ash silo touches the roof of the enclosure before said enclosure rests on the structural steel base. The enclosure is too short and remedial work is required priOr'to final setting. Tam Systems, as a requirement of the purchase order and the engineered drawings, made a visit to thejobsite to field veri~y existing conditions before materials were procured and fabrication was to begin. .requ. irements of the attache.d, purchase order we s cc' · In addition to the Jobslte and field veri~ ,~ ..... : .... , P ~fically instructed Tam t 'sit the -j all ,~,,-~l~ona v~a a phone conversation with Howar~°l~'~. L. Robert Kimball contract drawing clearly indicated the need for field verification of existing ash silo height of 28'-6'. Existing silo height is 32'-0' as verified by NCMI on 02-27-02. '' This issue is clearly an error on Tam's part and we regret to provide this correspondence as notice of subsequent backcharges to complete the enclosure installation fi.you have any questions please contact us. Sincerely Michael J. Stewart Vice President 589 SOUTH AVE. BRADFORD, E~ 16701 P · ', H.(814), 62. 6029 FX:(814)362- 6376 Exhibit E stems, Inc. March 22, 2002 North Central Mechanical Inc. 589 South Ave. Bradford, PA 16701 Attn: Michael J. Stewart Subj: Silo Enclosure Dear Michael In reply to your letter of March 12, 2002 to Laurin Fleming, TAM Systems is not responsible for the problem with the silo height, and will not accept any backcherges for the modifications that were required, for the following reasons: Your letter stares that the drawings list the silo height as 28'6" and that tile exJstk~g silo height was v~.fled by NCM7 as 32' 0" on 02-27-02. The e=closure that we supplied was 40' 1" save height as per the drawings that you approved on I 1-21-01. By these measurements on your l~tter of 3-12-02 there should be g' 1" clearance. Drawing number S2.05R states in the ~truct~mt notes, under the heading of"Pre- engineered Metal Silo" that ~ silo ah,!l be designed for all al~licsble loads, and that the silo shell be designed for the eorffigurations as shown on the drawings. Thc silo wss supplied as noted. The next item on the structural notes ofdrawin8 number 52.05R states that contractor shall field verify all existing dimensions. TAM Systems was not the contractor on this project, but only a supplier o£nurterials to be installed by others. NCMI PO number 44- 021 to TAM Systems is to provide And assemble a Brock model 01gl$ bin in accordance whh e~lgineers drawings, and to "field verif~ silo prior to fabrication", TAM Systems did provide and fabricate the silo 11-21-01. We did acid verify per thc submittals approved by you on that tile materials we provided were correct. I*. is clear!}, the responsibility of thc installer to ver|f~y thc heights and it is not the responslbflny ot the supplier of'materials. ' ' ' ' Our trlp to the jobsite was to verify existing conditions concerning s workspace/'or ]'A_M to rhbricate the enclosure which ~;e were supplying and We-fabricating, not' installing. GENERAL CONSTRUCTION COMPANY SPECIALIZING ;'~RE-E".':GJNEERED 5TE-'LEU!LDING~ .a. ;~OLE~biLDINGS ..~ GRAIN SYSTEMS ~ ms, Inc. 1248 S. Mountain Rca¢ Dillsburg. PA 170~ (717) a,3~-g738 Fex (717) 432.8389 www. tsmsyatemaJnc.c~ m Page 2 NCMI 3-22-02 On November 20, 2002 NCiV~ eaJ/ed TAM Systems and ~t a hold on the ord., ~y~g ~t t~e ~s a q~stion co~emi~g ~e ~ight of~ silo.We ~b~uently ~tified a short time h~ fl~ ~e silo w~ OK ~ p~ su~ii~ ap~ov~ drawinss. Became offs, we ~ ~ dou~s ~ ~e ~n~r ~d ~ or~c ~eers w~ a~ ~a ~c ~r~in~ ~e exi~ me~ments, ~ concl~io~ T~ Sysle~ ~1 ~t ~ept ~ b~ch~ for ~dfficafio~ tM~ were Perfo~ed by ot~ers to ~ silo ~t we ~dcd ~d ~mbl~ ~ NC~ PO 44-02I of i 1/$/2001. ~d ~t ~e~ ~ a ~cHa~ su~jf~ pro~ly. Pl~se ~ly m th~ Icner ~thin 10 ~ys. I~you co~lt our legal co~el ~ ~t ~ ~ment, I ~ to ex~ut~ om r~s ~er~e ~ is~s of~t project, Si emly, Gain M Julia, Vice Presidcn~ GENERAL CONSTRUCTION C~EMPANy SPECIALIZING iN: F'RE-~;XIG:NE.-".RED STEEL 5U!LD~NES ~. POLE t~U;LDiNGS ... GRAIN SYSTEMs .. -'EED PROCESSING Exhibit F March 25, 2002 Tam Systems, Inc. 1248 s. Mountain Road Dillsburg, Pa. 17019 Attn: Galen Julius Subj: Silo Enclosure Dear Galen North Central Mechanical, Inc. is in receipt of your correspondence dated March 22, 2002 regarding the above r~f~r~need maner.and mnstxespond w. ith.a.pnint .by pnlnt accounting due to several misleading statements and/or outright fabrications. The following listing can be follmv~l_in ord~rdfi'om said-Mart, h_22,_2Of12 l~rt~r: rU SILO ltEIGItT o The silo enclosure height per the drawings is 40' and the ash silo height 28' 6" with a requirement to field verify. The fact that your letter states "there should he 8 U1 "mlearance".~hows Mack of knowledge_regarding the issues. Please reference the attached drawing to understand the height problem. _SILO CONFIGURATIONS ra The comment that the silo enclosure was supplied as noted is incorrect. The 28' 6" measurement was never field verified as required by the drawings and yxmr Purchase Order. Additionally. thexoo, f.hateh was not .verified and is presently located incorrectly (This is not a placement ~ssue). Please note; HowardRife was Sllecifically instructed to visit th~ jobsite to verify all dimensions prior to fabrication. In December Howard and two other individuals.performed said site visit for over 4 hours. FIELD VERIFICATION [2 Tam Systems was specifically instructed to field verify all dimensions verbally and within the Purchase Order Agreement. Tam was not just a supplier of material and to_suggest that you have no responsibilityh this matter is a weak attempt to cover up gross errors by your site verification team. .589 SOUTH AVE. BRADFORD, 16701 PH:(814)362-6029 FX.(814)062-6o,6 ~ APPROVED SUBMITTAl, ca North Central Mechanical did not approve your submittal and the engineer reviewed for "conformance with the design criteria as set forth in the contract documents". As previoudy..stated,_yaur Purchase Order specifically requires field verification which Tam performed as instructed. ca SITE VISIT ca Your assertion that the site visit was to verify conditions concerning the workplace is an outright fabrication. Howard was specifically instructed not to fabricate anything until he-performedIhe field verification. Additionally, he was instructed to inform M/ke Stewart/fthere was any problems. ca The statement that the silo enclosure was put on hold due to a "question concerning the height of the silo" is another total fabrication. The only delay was negotiating the finol_ price and receipt ora notice to_proceed. This information is all well documented unlike your smoke screen. In conclusion, all costs associated with this issuedulll bit.to T. am's account. Anya'ebnttaJ should be based on facts not fabrication and further baseleSs correspondence will not be acknowledged. If you wish to discuss the issues in an attempt to resolve the situationat hand please contact Mike Stewart. Sincerely Frank A. Scopetti Ir. President cc: Charles Coy Peter Verbos Terry Shulsky Gates and Adams 09/04/~003 13:36 FAX 717 730 7366 REAG£R & ADLER ~016/016 I, Mike Stewar~, hereby verify that I am the Vice President of North Central Mechanical, Inc. and, as such, I am authorized to verify the aw~ents of the foregoing Complaint ~re true and correct to nay personal knowZeclge, information and belief. I under~tand that false statements herein are made subject tO the penalties of !8 P~ O.S. ~4904, relating to unsworn falsification to authorities. CERTIFICATE OF SERVICE AND NOW, this 8th day of September 2003, I hereby verify that I have caused a tree and correct copy of the foregoing document to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: Douglas G. Miller, Esquire IRWIN, McKNIGHT & HUGHES 60 West Pomfret Street Carlisle, PA 17013 Theoj~lor~/A. Adler, Esquire TAM SYSTEMS, INC., : IN THE COURT OF COMMON PLEAS v. Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW NORTH CENTRAL MECHANICAL, : 1NC., FIDELITY & DEPOSIT COMPANY NO. 2003-2750 OF MARYLAND and ZURICH NORTH : AMERICA SURETY, : Defendants : NOTICE TO PLEAD To~ Tam Systems, Inc. c/o Douglas G. Miller, Esquire IRWIN, McKNIGHT & HUGHES 60 West Pomfret Street Carlisle, PA 17013 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RE;SPONSE TO THE ENCLOSED MOTION FOR JUDGMENT ON THE PLEADINGS WITHIN THIRTY (30) DAYS FROM SERVICE HEREOF. Date: December 5, 2003 Respectfull ',~mitted, Theod~ ' · Attorney I.D. No. 16267 Thomas O. Williarns, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011~464 Telephone: (717) 763-1383 Attorneys for Defendants TAM SYSTEMS, [NC., : IN THE COURT OF COMMON PLEAS v. Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW NORTH CENTRAL MECHANICAL, : [NC., FIDELITY & DEPOSIT COMPANY NO. 2003-2750 OF MARYLAND and ZURICH NORTH : AMERICA SURETY, : Defendants : .DEFENDANTS, MOTION FOR JUDGMENT ON THE PLEADING,,; AND NOW, come Defendants North Central Mechanical Inc., Fidelity & Deposit Company of Maryland and Zurich North America Surety, by artd through their attorneys, Reager and Adler, PC, who file this Motion and in support thereof make the following averments: 1. This action was commenced by the Plaintiff when it filed a Praecipe for Writ of Summons on June I 1, 2003. 2. On July 8, 2003, pursuant to a Praecipe for Rule to File Complaint, the Prothonotary issued a Rule on the Plaintiff to file a Complaint. q?he Rule directed the Plaintiffto file its Complaint within twenty (20) days after service of the Rule. 3. When Plaintiff failed to file its Complaint in accordance with the aforementioned Rule, Plaintiffand its counsel was sent a Notice of Default dated August 8, 2003. A copy of said Notice is attached hereto as Exhibit "A". 4. On August 18, 2003, Plaintifffiled its Complaint in the captioned matter. 5. On September 9, 2003, Defendants filed their Answer with New Matter and Counterclaim. Attached to the New Matter and Counterclaim was a Notice to Plead directed to the Plaintiffand its counsel. The Complaint was sent by regular mail and telefaxed to Plaintiff's counsel. A copy of the telefax transmittal report is attached hereto as Exhibit "B". 6. Plaintiffhas failed to answer the New Matter as required by the Notice to Plead and Rules of Civil Procedure 1026 and 1029. 7. Plaintiff has not sought a modification of time in which to file its answer to the New Matter in accordance with Pennsylvania Rule of Civil Procedure 248. 8. In accordance with Pennsylvania Rule of Civil Procedure 1029, "averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication." 9. The pleadings are now closed. 10. Plaintiff has admitted that Defendant North Central issued a Purchase Order to the Plaintiffto provide a Brock Commercial Bin Model Number 85-01815 Ash Silo Enclosure. (See paragraph 67 of Defendants' New Matter) 11. Plaintiff has admitted that the Ash Silo Enclosure was ordered by Defendant North Central in connection with improvements being made by Defendant North Central at the Camp Hill Correctional Institution (the "Project"). (See Exhibit "A" to Defendants' New Matter) 12. Plaintiff has admitted that the Purchase Order issued by Defendant North Central to the Plaintiff required the Plaintiffto verify the dimensions of the Ash Silo prior to having the enclosure fabricated. (See paragraph 68 of Defendants' New Matter) 13. Plaintiffhas admitted that it fabricated the silo enclosure without field verifying the dimensions of the silo. (See paragraph 69 of Defendants' New Matter) 14. Plaintiff has admitted that it delivered the silo enclosure to the project in February, 2002. (See paragraph 70 of Defendants' New Matter) 15. Plaintiff has admitted that Defendant North Central[ could not install the silo enclosure because the enclosure fabricated by the Plaintiff was nol~, large enough to enclose the silo. (See paragraph 71 of Defendants' New Matter) 16. Plaintiff has admitted that on February 28, 2002, Defendant North Central notified the Plaintiff that the enclosure did not fit the ash silo. (See paragraph 72 of Defendants' New Matter) 17. Plaintiff has admitted that on March 4, 2002, it proposed supplying a 32" ring to add to the size of the enclosure so that it would be able to enclose the ash silo and that such a ring would cost $6,460.00. (See paragraph 73 of Defendants' New Matter) 18. Plaintiffhas admitted that on March 5, 2002, Defendant North Central proposed two (2) options to the project architect to enlarge the enclosure so that it would fit over the silo. (See paragraph 74 of Defendants' New Matter) 19. Plaintiff has admitted that Defendant North Cen~!ral advised the project engineer that the installation of an additional ring on the ash silo, which was the proposal made by the Plaintiff, would cost $20,035.00 which included the cost of $6,460.00 for the ring. Plaintiff has also admitted that Defendant North Central proposed a second c,ption to install additional structural steel to raise the silo twenty inches to match field conditions. (See Exhibit "B" attached to Defendants' Answer and New Matter) 20. Plaintiff has admitted that on March 8, 2002, the ]project engineer advised North Central that it had selected option two, but no additional money would be paid to North Central for the modifications. (See paragraph 75 of Defendants' New Matter) 21. Plaintiff has admitted that the Pennsylvania Depamnent of General Services ("DGS"), with whom Defendant had a contract for the Project, advised Defendant North Central that it would not pay for the additional work because of the failure by the Plaintiff to field verify the height of the existing silo prior to the having the enclosure fabricated. (See paragraph 75 of the Defendants' New Matter) 22. Plaintiffhas admitted that on March 12, 2002, Defendant North Central notified the Plaintiff that it intended to backcharge the Plaintiff for the cost of performing the additional work because the additional work was "due to Plaintiff's failure to verify the existing ash silo height". (See paragraph 77 of Defendants' New Matter) 23. Plaintiff has admitted that North Central completed the modifications it was directed to perform by the project engineer in May, 2002, and ]!hat the cost to North Central to perform the modifications was $19,143.00. (See paragraph 80 of Defendants' New Matter) 24. Plaintiff has admitted that Defendant North Central sought payment for the additional work from DGS which request was denied because DGS concluded that the contract drawings required the Plaintiff to verify field conditions before fabricating the ash silo enclosure which the Plaintiff had failed to do. (See paragraph 81 of Defendants' New Matter) 25. Plaintiff has admitted that on May 31, 2002, Defendant North Central paid the Plaintiff $2,647.00 which represented the balance due the Plaintiff less the cost incurred by North Central in making the required modifications to the enclosure. (See paragraph 82 of Defendants' New Matter) 26. Plaintiff has also filed a claim against Defendants Fidelity & Deposit of Maryland and Zurich North America Surety on a performance bond that th,,' Plaintiffhas attached to its Complaint. 27. The performance bond does not obligate either Defendant Fidelity & Deposit or Zurich North America to pay Plaintiff's claims. 28. Plaintiff has admitted that it has been paid in full tJhe amount of money due under its contract. (See paragraph 88 of Defendants' New Matter) 4 29. Defendants are entitled to Motion for Judgment on the Pleadings as a matter of law. WHEREFORE, Defendants respectfully request this Honorable Court to grant Defendants Motion for Judgment on the Pleadings and dismiss Plaintiff's Complaint with costs to Defendants. Date: December 5, 2003 ;i'heodo e~A. :ub~itted,. / Adler, Esquire Attorney I.D. No. 16267 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys fbr Defendants TAM SYSTEMS, INC. 1248 South Mountain Road Dillsburg, PA 17019 Plaintiff, IN THE COLrRT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 03-2750 Civil Term NORTH CENTRAL MECHANICAL, INC.,: THE FIDELITY & DEPOSIT COMPANY : OF MARYLAND, and ZURICH NORTH : AMERICA SURETY, : Defendants : JURY TRIAL DEMANDED IMPORTANT NOTICE To: TAM Systems, Inc. 1248 South Mountain Road Dillsburg, PA 17019 Douglas G. Miller, Esquire 60 West Pomfret Street Carlisle, PA 17013 Date of Notice: August 8, 2003 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE A COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN MAY BE TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAy LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBy LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER Al' ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TEL]EPHONE THE FOLLOWING OFFICE TO FIND OUT WX-IERE YOU CAN GET LEGAL HELP: EXHIBIT "A" Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 ~heodj/re A.l~.dler, Esquire Attorney I.D. No. 16267 Thomas O. Williams, Esquire Attorney I.D. NO. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants *** TX REPORT TRANSMISSION OK TX/RX NO 0467 CONNECTION TEL SUBADDRESS CONNECTION ID ST. TIME 09/08 14154 USAGE T O4'45 PGS. SENT 18 RESULT OK 2496354 FACSIMILE To: Douglas G. Miller, Esquire Irwin, MclOtight & Hughes 717-249-6354 Re: Our File No.: 02-394.001 Pages: ]~l_, including this cover sheet. Date: September 8, 2003 Message: The following pleading will be fried in Cumberland County Tuesday, September 9= 2003. Any questiona or concerns, please call Attorney Ad/er at the number ]below. _12/01Z2003 12:02 FAX 717 730 ?366 REAGER & ADLER ~002 VERIFICATION I, Mike Stewart, hereby verify that I mn the Vice President of North Central Mechanic~l, Inc. and, as such, I am authorized to verify the averments of the foregoing doctunent are true a~d correct to my personal knowledge, information and belief. I understand that false statements here/n are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification lo authorities. Date: _CERTIFICATE OF SERVICE AND NOW, this 5th day of December 2003, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: Douglas G. Miller, Esquire IRWIN, McKNIGHT & HUGHES 60 West Pomfret Street Carlisle, PA 17013 Christine M. Ciccocioppo, Paralegal TAM SYSTEMS, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NORTH CENTRAL MECHANICAL, : INC., FIDELITY & DEPOSIT COMPANY: NO. 2003-2750 OF MARYLAND and ZURICH NORTH AMERICA SURETY, Defendants .ORDER AND NOW, this ___ day of ,200 , Defendants' Motion For Judgment On The Pleadings is hereby GRANTED and Plaintiff's Complaint is dismissed. By the Court, TAM SYSTEMS, INC., Plaintiff : IN THE COLrRT OF COMMON PLEAS : CUMBERLAS~D COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW NORTH CENTRAL MECHANICAL, : INC., FDELITY & DEPOSIT COMPANY: NO. 2003-2750 OF MARYLAND and ZURICH NORTH : AMERICA SURETY, : Defendants : ORDER AND NOW, this __ day of .. 200. , Defendants' Motion For Judgment On The Pleadings is hereby GRANTED and PlaintifF's Complaint is dismissed. By the Cortrt, TAM SYSTEMS, INC. Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : NORTH CENTRAL MECHANICAL, INC.,: THE FIDELITY & DEPOSIT COMPANY : OF MARYLAND, and ZURICH NORTH : AMERICA SURETY, : Defendants. : CIVIL ACTION - LAW NO. 2003 - 2750 JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANTS' NEW MATTER and COUNTERCLAIM AND NOW, this 19th day of December, 2003, comes the Plaintiff, TAM SYSTEMS, INC., a Pennsylvania Corporation, by and through its attorneys, Irwin & McKnight, and makes the following Answer to the New Matter and Counterclaim filed by Defendants, NORTH CENTRAL MECHANICAL, INC., FIDELITY & DEPOSIT COMPANY OF MARYLAND, and ZURICH NORTH AMERICA SURETY, averring as follows: DEFENDANTS' NEW MATTER 66. The averments of fact contained in the Plaintiff's Complaint are hereby incorporated by reference and are made part of this Answer to the Defendants' New Matter. 67. The purchase order referenced by Defendants in paragraph sixty-seven (67) and identified as Exhibit "A" speaks for itself and therefore no response is required. To the extent that a response is required, the averments in paragraph sixty-seven (67) are conclusions of law. 68. The averments contained in paragraph sixty-eight (68) are denied as stated. It is admitted that Plaintiff was required to verify that the commercial bin delivered to the site was a Brock Model No. 85-01815, which was the bin selected by iDefendant North Central and the project engineers prior to engaging the services of Plaintiff. The remaining averments in paragraph sixty-eight (68) are specifically denied and strict proof thereof is demanded at trial. 69. The averments contained in paragraph sixty-nine (69) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 70. The averments contained in paragraph seventy (70) are specifically denied and strict proof thereof is demanded at trial. 71. The averments contained in paragraph seventy-one (71) are admitted in part and denied in part. It is admitted that Defendant North Central attempted to install the enclosure but initially could not complete the installation. The remaining aw~rments in paragraph seventy-one (71) are specifically denied and strict proof thereof is demanded at trial. 72. The averments contained in paragraph seventy-two (72) are admitted in part and denied in part. It is admitted that Defendant North Central requested that Plaintiff prepare a proposal to modify the conunercial bin that was selected by Defendant North Central and the project engineers prior to engaging the services of Plaintiff. The remaining averments in paragraph seventy-two (72) are specifically denied and strict proof thereof is demanded at trial. 73. The averments contained in paragraph seventy-three (73) are denied as stated. It is admitted that Plaintiff supplied a proposal dated March 4, 2002 for additional materials and labor of $6,460.00, a copy of which proposal is referenced as Exhibit "C" in Plaintiff's Complaint. The remaining averments are specifically denied and strict proof thereof is demanded at trial. 74. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph seventy-four (74) so they are specifically denied and strict proof thereof is demanded at trial. 75. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph seventy-five (75) so they are specifically denied and strict proof thereof is demanded at trial. 2 76. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the troth of the averments contained in paragraph seventy-six (76) so they are specifically denied and strict proof thereof is demanded at trial. 77. The averments contained in paragraph seventy-seven (77) are admitted in part and denied in part. It is admitted that Defendant North Central sent correspondence to Plaintiff dated March 12, 2003, a copy of which is attached as Exhibit "C" to the New Matter. The remaining averments, including the assertions in the letter that Plaintiff was in error, are specifically denied and strict proof thereof is demanded at trial. 78. The correspondence referenced by Defendants in paragraph seventy-eight (78) and identified as Exhibit "E" speaks for itself and therefore no response is required. 79. The averments contained in paragraph seventy-nine (79) are admitted in part and denied in part. It is admitted that Defendant North Central senlr correspondence to Plaintiff dated March 25, 2003, a copy of which is attached as Exhibit "F" to the New Matter. The remaining averments, including the assertions in the letter that Plaintiff was in error, are specifically denied and strict proof thereof is demanded at trial. 80. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph eighty (80) so they are specifically denied and strict proof thereof is demanded at trial. 81. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as tO the troth of the averments contained in paragraph eighty-one (81) so they are specifically denied and strict proof thereof is demanded at trial. 82. The averments contained in paragraph eighty-.two (82) are admitted in part and denied in part. It is admitted that Defendant North Central paid the sum of $2,647.00 to Plaintiff. The remaining averments, including the assertion that this was the balance due to Plaintiff, are specifically denied and strict proof thereof is demanded at trial. 83. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph eighty-three (83) so they are specifically denied and strict proof thereof is demanded at trial. By way of further answer, upon information and belief, Defendant North Central was also required to provide a payment bond as admitted in the answer to paragraph fifty-eight (58) of PlaintiWs Complaint, which payment bond was also provided by remaining Defendants. 84. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contaiined in paragraph eighty-four (84) so they are specifically denied and strict proof thereof is demanded at trial. By way of further answer, upon information and belief, Defendant North Centnd was also required to provide a payment bond as admitted in the answer to paragraph fifty-eight (58) of PlaintiWs Complaint, which payment bond was also provided by remaining Defendants. 85. The averments contained in paragraph eighty-tSive (85) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 86. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph eighty-six (86) so they are specifically denied and strict proof thereof is demanded at trial. By way of further answer, upon information and belief, Defendant North Central was also required to provide a payment bond as admitted in the answer to paragraph fifiy-eight (58) of PlaintiWs Complaint, which payment bond was also provided by remaining Defendants and provides rights to Plaintiff for payment as alleged in its Complaint. 87. The averments contained in paragraph eighty-seven (87) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 4 88. The averments contained in paragraph eighty-eight (88) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 89. The averments contained in paragraph eighty-nine (89) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 90. The averments contained in paragraph ninety (90) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 91. The averments contained in paragraph ninety-one (91) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 92. The averments contained in paragraph ninety-two (92) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, in the event that Defendants believe they may have claims against other persons or entities arising out of this dispute, they had or have the ability to include such persons or entities as additional entities as governed by the Pennsylvania Rules of Civil Procedure. 93. The averments contained in paragraph ninety-three (93) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 94. The averments contained in paragraph ninety-four (94) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor and award Plaintiff the relief requested in its Complaint. DEFENDANTS'COUNTERCLAIM 95. The averments of fact contained in the Plaintiff's Complaint and responses to Defendants' New Matter are hereby incorporated by reference and are made part of this Answer to the Defendants' Counterclaim. 96. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the troth of the averments contained in paragraph ninety-six (96) so they are specifically denied and strict proof thereof is demanded at trial. By way of further answer, any costs that Defendant North Central may have incurred were the result of its failure or the failure of the engineers to select the proper commercial bin, and were excessive. WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor and against Defendant North Central Mechanical, Inc., and award Plaintiff the relief requested in its Complaint. Date: December 19, 2003 Respectfully Submitted, IRWIN & McKNIGHT Dougl~''~ ~. Miller, Esquire"' '~ Supremd/Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorneys; for Plaintiff, TPdVI Systems, Inc. 6 VERIFICATION The foregoing document is based upon information which has been gathered by corporate counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. TAM SYSTEMS, INC. Date: December 19 , 2003 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I h~ave served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: THEODORE A. ADLER, ESQUIRE REAGER & ADLER, P.C. 2332 MARKET STREET CAMP HILL, PA 17011-4642 Date: December 19, 2003 IRWIN & McKNIGHT Douglas G. ~Iiiler, Esquire Supreme Cogtrt I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Plaintiff TAM Systems, Inc. TAM SYSTEMS, INC., Plaintiff V. NORTH CENTRAL MECHANICAL, INC., T~lg FIDELITY & DEPOSIT COMPANY OF MARYLAND, and ZURICH NORTH AMERICA SURETY, Defendants RULE 1312-1, IN THE COURT OF C0~4ON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-2750 CIVIL 19 The Petition for Appointment of Arbitrators shall be subs:antlaliy the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Douglas G. Miller, Esquire , counsel for the plaintiff/,L.f~,.&~-x in the above ac:ion (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of the plaintiff in =he action is $ less than $25.000.00 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are other- wise disqualified to sit as arbitrators: Theodore A. Adler, Esquire and Doumlas G. Miller, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submit:ed, ORDER OF COURT Do. glad. Miller~, Esquire Attorney for Plaintiff AND NOW,~~ /~ , ~9-~, in considera:ion of the above-captioned action (or actions) as prayed for. By the TAM SYSTEMS, INC. V. ) NORTH CENTRAL MECHANICAL, INC.) THE FIDELITY & DEPOSIT CO. OF MARYLAND, and ZURICH NORTH OATH In The Court of Common Pleas of Cumberland County, Pennsylvania No. 2759 2003 We do sol~"ty swear (or affirm) the Co~titution of =he United States wealth and that we will discharEe the uhat we will support, obey and defend and the Consti=uu&on of this Common- duties of our office with fidelity. -~-r.a~ DucaC airu~n 'Brian C. Bornman - ~r,~ ~~ AW~ We, the undersigned arbitrators, havin~ 5ee~ duly a@pointed and sworn (or affirmed), make the follo%rln~ award: (Note: If d~--~es for delay are awarded, =hey shall be applicable.) Date of Hearing: Date of Award: . Arbitrator, dissents. (Insert name if 5/26/04 ~rances H. Del DucaChairman Brian C. Bornman NOTIC~ OF ~NTR~ OF AWARD Arbitrators' comp. ensation to be ~aid upon appeal: Now, =he day of , 2004 ~ at , __.~., =he above award was entered upon =he docket and notice =hereof ~iven by mail to the parolee or ~heir at~orne.vs. Deputy TAM SYSTEMS, INC. Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. NORTH CENTRAL MECHANICAL, INC., THE FIDELITY & DEPOSIT COMPANY OF MARYLAND, and ZURICH NORTH AMERICA SURETY, Defendants. CIVIL ACTION - LAW NO. 2003 - 2750 NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice is given that Plaintiff, Tam Systems, Inc., appeals from the award of the board of arbitrators entered in this case on May 26, 2004. A jury trial is waived. I hereby certify that the compensation of the arbitrators has been paid. Respectfully submitted, IRWIN & MCKNIGHT Dated: June 25 ,2004 Douglas ~. I~Iill~r~ Esquire Atty. ID No.: 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Attomey For Plaintiff PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY PIease list the following case: (Check one) ( ) for JURY trial at the next term of civil court. for trial without a jury. CAPTION OF CASE (entire caption must be stated in futl) T~14 SYS~'E~, INC., (Plaintiff) (check one) ( ) Assumpsit ( ) Trespass (other) NORTHCEIITRAL M~CHANICAL, INC., '£H~. FIDELITY & DEPOSIT COMPANY OF MARYLAND~ and SURICH NORTH AMERICA SURETY, v$, (Defendant) The trial list will be called on _ September 28, 2004 and Trials commence on O~tn~r 25. 2004 Pretrials will be held on October 6, 2004 (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. 2003-2750CiviI 19 --__ Indicate the attorney who will try case for the party who files this praecipe: ]~nll~laR ~t NTllera Esquire Indicate trial counsel for other parties if known: 'rh~na~,re A. Aa'Ler~ ~squire - for Defendants This case is ready for trial. Date: 9-3-04. Print Name: -IloJz~i_G.. Miller Attorney for: -~Ela~iff TAM SYSTEMS, 1NC., Plaintiff NORTHCENTRAL MECHANICAL, INC., : THE FIDELITY & : DEPOSIT COMPANY OF: MARYLAND, and SURICH NORTH : AMERICA SURETY, : Defendants : IN THE COURT OF CO~rflvlON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2750 CIVIL TEILM ORDER OF COURT AND NOW, this 13th day of September, 2004, a pretrial conference in the above matter is scheduled for Friday, October 29, 2004, at 9:30 a.m., in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. A NONJURY TRIAL in the above matter is scheduled for Monday, November 29, 2004, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. ~l~ouglas G. Miller, Esq. Attorney for Plaintiff BY THE COURT, ,,Tti~odore A. Adler, Esq. Attorney for Defendants Court Adm~mstrator Office- ,09/d-Oq :rc TAM SYSTEMS, INC., Plaintiff NORTHCENTRAL MECHANICAL, INC., THE FIDELITY & DEPOSIT COMPANY OF MARYLAND, and SURICH NORTH AMERICA SURETY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2750 CIVIL TERM ORDER OF COURT AND NOW, this 25th day of October, 2004, upon consideration of the attached letter from Douglas G. Miller, Esq., attorney for Plaintiff, the pretrial conference previously scheduled for October 29, 2004, and the nonjury trial previously scheduled for November 29, 2004, are cancelled. BY THE COURT, ~l~ouglas G. Miller, Esq. Attorney for Plaintiff /Trheodore A. Adler, Esq. Attorney for Defendants :rc LAW OFFICES IRWIN & McKNIGHT ROGER lZ IRWIN MARCUS A. McKNIGHT, 11I DOUGLAS G. MILLER MATFHEW A. McKNIGHT WEST POMFRET PROFESSIONAL BUILDING 60 WEST POMFRET STREET CARLISLE, PENNSYLVANIA 17013-3222 (717) 249-2353 FAX (717) 249-6354 WW[A~ IMHLA W. COM October 22, 2004 HAROLD & IRWIN (1925-1977) HAROLD S. IRWIN, JR. (1954-1986) IRWIN, IRWIN&IRWIN (19.56-1986) IRWIN, IRWIN & McKNIGHT (1986-1994) IRWIN. Mt KNIGHT & HUGHES (1994-200~) THE HONORABLE J. WESLEY OLER, JR. CUMBERLAND COUNTY COURTHOUSE ONE COURTHOUSE SQUARE CARLISLE, PA 17013 RE: TAM SYSTEMS, INC. V. NORTH CENTRAL MECHANICAL, INC., ET AL. DOCKET NO.: 2003-2750 Dear Judge Oler: Please be advised that the parties in this matter have reached a mutually agreeable settlement. Therefore, the pre-trial conference scheduled for October 29, 2004 as well as the trial scheduled for November 29, 2004, can be cancelled. Thank you for your attention to this matter. Very truly yours, IRWIN & McKNIGHT uglas G Miller DGM:tds cc: Theodore A. Adler, Esquire Laurin Fleming, TAM Systems, Inc. TAM SYSTEMS, INC. Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : NORTH CENTRAL MECHANICAL, INC.,: THE FIDELITY & DEPOSIT COMPANY : OF MARYLAND, and ZURICH NORTH : AMERICA SURETY, : Defendants. : CIVIL ACTION - LAW NO. 2003 - 2750 JURY TRIAL DEMANDED PRAECIPE TO SETTLE AND DISCONTINUE THE PROTHONOTARY: Kindly mark the above-captioned matter as settled and i~iscontinued. Date: December 10, 2004 Respectfully Submitted, IRWIN & McKNIGHT .ouglas ;. Miil r, l~s~luire Supreme Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiffs CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a tree and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: THOMAS O. WILLIAMS, ESQUIRE REAGER & ADLER, P.C. 2332 MARKET STREET CAMP HILL, PA 17011-4642 Date: December 10, 2004 IRWIN & McKNIGHT Douglas I~. Mill~/, Es~iuire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret .Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Plaintiff TAM Systems, Inc.