HomeMy WebLinkAbout99-00231
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COMI'I,AIN'I'
Phlintiff8, by nnd through undersigned 1'01111801, hy wny of eOl11plnint ullninst the
t)efendants horoby stute:
I. Pluintiff, Al'Ilold Restaurnnts, Inc. is n cOl"pol'lltion ol"gunized und cxlsting
undel" the luws of the Stute of Kcntucky, with II principle pluce of husincss locuted nt the address set
forth in the cuption above.
2. Plaintiff, Fuzoli's, is u corporutionol"gnnized and existing under the luws of
the State of Kentucky, with u principle place of husincss located ut thc uddress set forth in the
cuption ubove.
1. Defendunt, Cork em Constl1lction Company, ("Corkem") is a corpol'lltion
organized and existing under thc laws of the State of Kentucky with a principle pla\:e of business
located at the addrcss sot fOl1h in the cuption ubove. At all time relcvuntto this litigation, Corkern
was l:ngaged in the business of general contracting work.
4. Defendunt, Puul Chancy, individually, trading as, ,md doing business us A I
Roofing, UpOIl illforll1ation and belief; is an individual with a prineiple plnee of business locuted
at the address set forth in the caption ubove. At alltill1cs rclcvant tn this Iitigution, Paul Chancy
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enguged in the lmsiness of I'llof construction.
5. It is possihle that Defendant, A I Roofing is a sepal'llte corpol"all: entity
organized and existing under the laws oflhe Statc of West Virginia with a principle placc of business
located al thl' uddress set forth in the caption above. At all times relevant to this litigation, A I
Roofing engaged in the business of roof construction.
6. Hcreinafter, Defendants Paul Chancy and A I Roofing will be refclTcd to
collectively us "A I Roofing".
7. Defendant, Joseph L. Ducy, Jr., individually, trading as, and doing business
as, Joc Duey Plumbing & Heating, upon infonnation and bclicf~ is an Individual with a principle
pluce of business located at the address set forth in thc caption abovc. At all times relevnnt to this
litigation Joscph I.. Duey, Jr. was engaged in the husincss of installing and/or constructing henting,
ventilation, ail" conditioning, lInd plumhing systems.
R. Upon information and beliel~ it is possihlc that Defendant, Joe Duey Plnll1hing
& Iicating, IS a sepnrato corporate entity organizcd nnd existing under thlJ laws of the
Commonwealth of Pennsylvunin, with n principlc plncc of business loented althc addl"ess set forth
in the caption ahove. At all times I'elcvantto this Iitignlion .Ioc Duey Plumbing & Heating was
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COllNT III -IIRII:ACII ()Ii' CONTRACT
I'LAINl1J<'ES..Y...J..:'URKERNt:.OJllS'I'I{lJC'I'lON..cu.
24, Plnlntiffs incorporntc herein by relCrClwe parngrnphH I throngh 23, as
though the slime were lillly set 1<1l1h at length.
25. The COi1stl1letion Contmel he tween the Plaintiffs and Corkem ineorpol'llted
the following relevant paragmphs, conditions, and duties.
26. Pal'llgraph 7 SUBCONTRACTORS- Sl !PPI JERS rcquirL~1 that: "Contractor
[CoTkem) mny suhcontract pnrts of the work subject to the Owuer's right to reject any
Subcontractor or supplier; however, the Contmctor shnll not subeontrnct its dUly of
supervision. The Contmetor shall he fully responsible to the Owner for the acts and
omissions of a Subcontractor and Ihe I\ersons or firms employed hy a SlIhcontractor."
27. Paragraph II UUARANTEE stated thai: "Contractor glllll'lmtees all work
and mnterlals against defects lInd ngainst failure under ordinary lISllge, exclusive of
ordlnmy weal' and tenr, for ollt) (I) ycar from the datc of finalaeceptlllwc of the Work hy
Owner, Under such gunl'llntee Contmctor makes such Ihrther gUll run tees as may be
provided in the [lpecilicntions and any other Contract documents listed inl'aragraph 28."
28. Paragraph 13 LIABILITY TO OTIIERS requircd thilt: "Thc Contractor
shall indemnify and save Ihe Owner hamlless from all liability and loss (including court
costs, nllorncy's fees and Owner's related cxpenscs, whether or not litigation is
commenced) because of injury (including death) to any person, or damage to mlY propel1y
that may occur or may be alleged to have occurred in the perfonnancc of the Work, as a
result directly or indirectly, of ContI' net or's or any Suhwntruetor's fault or negligence, or
of their servnnts, agents, and employees, At its (lwn expensc, the Contrnctor shall defend
all suits 01' c1nims nlleging such injury 01' damages and shall pay nil chllrges of attomeys,
court costs, IInd nil other costs and expenses in connection therewith."
29, Bnsed upon the careless, negligent, and other Iiahility producing conduct
on the pal1 of Cork em and its servants, employees, agents, and/or suhcontractors, as set
forth in Counts land II ahove, Defendant Corkern hreached the aforementioned provisions
of tile Construction Contract in plnee hetween the Plaintiffs and Corkern.
)0. Plaintiffs had IInd hav(1 performed all conditions preeodcnt to recovery
hased npon sllch hrclIch.
31. As a pl'Oximllle reslllt or thc ul<)rellwntioncd hrenches on the part of
Corkern, Plllintiffs sustained and incurred damage 10 Iheir property, loss of husiness
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The Contractor will complete all pUlleh-lisl items as SOOIlIIS reasollably possible bUI rIOt
later than thirty (30) calendar days from the date of the puneh-Iist il1';pection (l'the
Contractor lails to complete the entire pUllch-list withinthlll period, the Owner may
proceed to have the remaining items corrected ill the e,~pense of the Contractor and lhe
monies paid 10 correct lhose items will be deducted liornlhe balance due to Contractor
(finy punch-list items remllinthat cart/lot be compleled hecause of the weather, the
Contraclor will correct those ilems as soon as reasonably possible bUl not later than thirty
(30) days from being notified by the Owner ,hat work should commence on the weather-
related punch-list items. Until the weather-related punch-list Items are completed 10 the
Owner's satisfaction, the Owner will retain from lhe Contractor a sum equal to 2 1/2
times that required, in the Owner's reasonahle estimati(lll, 10 complete or correct the
weather-related puneh-lisl items.
j CONTRACTOR'S RESPONSIDILlTY Conlraetor is an independent contractor
for all work to be perfomled hereunder. The delailed manner and method of doing the
work shall be under the control of Contractor All employees of Conlractor performing
Work under this C(lntraet shall he and remain the Contractor's employees and shall he
promptly paid by Contractor for such Work. The Contractor shall not be relieved from ilS
obligations to perform the Work in accordance with this Contract, either by the aClivilies
or duties of the owner or its employees, representatives 01' agents in administration of this
Contract, or by inspections, tests or approvals requircd or pertl)('lned by the Owner or ils
employees, represenlativ(ls or agents
The Conlraetor is required to provide 11111 lime supervision The Contractor shall provide
a storage trailer on site and shall be responsible for the receipt and safe storage of Owner
furnished equipment and matcrials The Contractor is required to maintain a "daily log"
which will identify all daily projecl related activities including, but not limited to, weather,
equipment deliveries, inspections, Owner representatives viuits, etc. The log is to be
turned ovcr 10 the Owner upon completion of the Work
4. WORK CHANGES Owner reserves lhe right to make alterations, additions or
deletions in the Work All such Work changes shall be accomplished only by wrillen
change order on the Owner's slandard form and shall contain all necessary documentation
deemed by lhe Owner as ndequate to subslantiatc the actual costs incurred and monies
requested from Contractor. Any price adjustment shall be agreed upon in the wrillen
change order prior to Contrac,tor changing the Work If the pal1ies cannot agree to lhe
price adjustment, lhe adjustment shall be conclusively detennined in good faith by the
architect assigned to the Work by the Owner, on the basis of estimated reasonable
expenditures and/or savings and a rcasonable allowance for overhead and prot1t
page 2
5 RECORD SET OF I'LANS The Contractor will be required to maintain a
. "Record Sel" during constlllction This set of plans is to be kept on the job site at all
times and must contain the following informalion"
I Exact location of underground utilities, including sanitary sewer, water gas
(if applicable), and electricity (if applicable)
2 E~aet location of pole sign, lot lights, exterior menu boards, and direclional
sign
) Exact location of all underground conduits (excluding conduit under slab)
4 Exacllocntion and size of on-Bile storm drainage (if applicable)
5. Exaetloclltion of overhead.
6 Any change or devialion from plans and specifications are to be marked on
appropriate details throughout the set of plans
The "Record Set" is to be kept updated at all times, with the necessary information being
recorded as the work is completed The "Record Set" is to be suhmilted to the Owner
after completion of constlllction.
6. TIME OF PERFORMANCE An express condilionpreeedcnt to the dUlies and
obligations of Contractor 01' Owner to performundcr this Contract is the delivcry, wilhin
sixty (60) days from the datc hcrcof, to Contractor of a Lcltcr of AuthOlizationto
Commencc Constlllction ("Leltcr of Authorization") expressly instructmg Contractor to
commencc performance hercundcr. Owner is under no obligation to send a Lclter of
Authoril.alion if it clects in its sole discrction not to proceed with eonstlllcti(ln under the
terms of this Constllleti(ln Contract. This Contract will be deemed terminated if the Leltcr
of AUlhorization is nOl delivered to the Contractor within the said sixty (60) day period
The Lcltcr of Authorization is to be signed by the Owncr's Director ofConstruetion or
any other Owner representative designalcd by Owncr. No individual or individuals other
than the aforesaid persons are emp(lwered by Owner to execute a Letter of Authorization
Receipt by the Conlractor of the Letter of Authorization is sullicient to create duties and
obligalions under this Contract. This exprcss condilion precedent cannot be waived,
amended, altercd or terminated by any person or entity representing or purporting to
represent the Owner. The Owner shall not be liable for any costs or expenses, however
named or dcscribed, incurred by Contraclor prior to Contractor's reccipl of the Leiter of
Authorization Cost and expcnsc as used hereinahove shall include, but not be limited to,
material, labor, equipment, plnnning, conununicalion and/or transportation
Afler rcccipt of the Letter of Authorization, Ihe Contractor shall commcnce thc Work
within sevcn calendar days and shall eomplctc the work not later than 80 calendar days
fromthc date ofreecipt of the Lctter of Autholilalion Time is of the esscncc
N(I eXlcnsion of time shall bc allowed for delays duc to normal seasonal inclement weather
or for delays in delivery ofmatcrinls othcr than lhose supplicd by lhe Owner for the Work
page .1
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7. SWBCONTRACTOR-SUPPLlERS The Contractor may subcontract parts of the
Work, subJecl to the Owner's right to reject any Subcontractor or supplier; however, the
Contraelor shall nol subcontract its dUly of supervision The Contractor shall be fully
responsible 10 the Owner for lhe aClS and omissions of a Subcontractor and the pcrsons or
firms employed by a Subcontractor.
~. PERMITS, FEES AND NOTICES The Contractor shall secure and pay for all
permits and governmental fees, licenses and inspections necessary for the proper execution
and completion of the Work, which are customarily secured by a contractor and which are
legally required. Such permits and licenses are lhe property of the Owner and shall be
delivered to the Owner upon its request. The Contractor shall give all notices and comply
with all laws, ordinances, rules, regulations, and lawful orders of any public authority
bearing upon the performance of the Work and the Contractor's obligalions hereunder.
9. PERFORMANCE AND LABOR AND MATERIAL PAYMENT BOND The
Owner shall have the right to require the Contractor to furnish bonds covering the filit~ful
performance of the contract and payment of all obligations arising from the Work, if and
as required by the Owner, subject to the terms specified in the bidding documents.
10 BREACH All of the Work done Ilnd all malerinls furnished by Contractor shall be
subject to approval of Owner's aUlhorized representative, who shall have the right to
inspect the Work and materials at any time (or compliance wilh the provisions of the
Contract, and the right to reject any defective work or materials. Any defective work and
materials shall be promptly remedied or replaced by Contractor at Contractor's expense
If Contractor should fail at any lime to provide the necessary materials, labor, tools,
equipment, utilities, transportation, and supervision for the proper performance and timely
completion of the Work, or should otherwise br\"ach the Contract in whole or in pan or
fail to use diligence in the performance lhereof, or should Contractor become insolvent, or
should insolvency, receivership or bankruptcy proceedings be commenced by or against
Contractor, or should Contractor make an assignment for the benefit of creditors, then
Owner may, at its election, take over the Work any or all materials at lhe Work site and
perform either through Owner's employees or another eontraelor all or any part of the
Work lhen remaining unperformed upon lwo (2) days' notice to Contractor. If Owner
should exercise such right, Contractor will receive no further paymenls until the Work has
been completed; then if the total cosl of completion and Owner's actual expenses are less
than the Contract ('rice, Contractor shall pay the difference to Owner upon demand
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II GUARANTEE C(Jlllractor guarantees all work and materials against defects and
against failure under ordinary usage, exclusive of ordinary wcar and tear, for one ( I ) year
from thc date of final acceptance of the Work by Owncr Under such guarantee
Cmuraelor makes such Ihrthcl' guarantees as may be provided in the specifications and any
(l\her Conlract document!llistcd in I'aragrnph 28
12 ASSUMPTION OF RISK The Contractor represellls prior to ItS execution of this
Contract that the Contractor has examined carefully all the Contract documents,
acquainted itself with lhe site and all other condirions relevant 10 the Work, and made all
investigations essential to a full understanding of the ditlkulties which may be encountered
in perfonning the Work.
13 LIABILITY TO OTHERS The Contractor shall indemni(v and save the Owner
harmless from all liability and loss (including court costs, a!torney's fees and Owner's
related expenses, whether or nOllitigation is commenced) becnuse of injury (including
death) to any person, (II' damage to any property that may occur or may be alleged to have
occurred in the performance of the Work, as a result, directly or indirectly, of Contractor's
or any Subeolllractor's fault or negligence, 01' of their servants, agents, and employees At
its own expense, the Contractor shall defend all suits or claims alleging such injury or
damages and shall pay all charges of attorneys, court costs, and nil other costs and
expenses in connection lherewith.
14. CONTRACTOR'S INSURANCE The Contractor agrees ill lIs own expense 10
purchase and maintain throughout the work such insurance as willprolect It from claims
under Workers' Compensation Acts and other employee benefit acts, from claims for
damages because of bodily Injury, including death, and all claims for damages to property
which may arise out of or result from the Contractor's operations under the Contract,
whether such operations be by the Contractor or by any Subcontraclor or anyone directly
or indirectly employed by any of them. Cenificates of such insurance shall be filed with
the Owner and shall show Owner as an additional named insured on all pohcies.
Certificates shall also have a thirty (30) day notice of cancellation/change in condition
clause
Unless thc Owner shall otherwise specify to Contractor, the Contractor shall oblain and
mainlain throughout the Work the coverages and minimum limits of insurance sel forth
bclow
Coverage Type
Limits
Worker's Compcnsation to cover all enlployces
who nre engaged in work under thiS Contract
Statutory
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~.El11ployer's liability, including bodily injury,
death and disease
$100,000 each ace idem
$100,000 disease each
employee
$500,000 policy limit
1 Comprehensive General Liability and Property Damage
Liability
Comprehensive Oeneral Liability 10 be broad. form
coverage and include, but not be limited to premises,
operations, contractual liability, independent contractor's
liability, broad-form property damage and personal injury
Combined Single limits
of $1.000,000 each
occmrence
$1,000,000 aggregate
15. TESTS If the specifications, Owner'~ prior instructions, laws, ordinances or any
public authority require any part of the Work to be tested 01 approved, Contractor shall
give Owner and such public aUlhorilY, as required, timely notice of its readiness for
inspeolion (fany such part of the Work is covered up without Owner's approval or the
required approval of public authority it must be uncovered for inspection at Contractor's
expense if directed by Owner or such public authority Owner shall have the opportunity
of witnessing all tests and shall receive a copy of the results of such tests from the
Contractor
16. OWNERSHIP OF DOCUMENTS All drawings, sketches, test data, survey
results, photographs, renderings, and olher material related to the Work prepared by the
Contractor, or furnished to the contractor by the Owner or its employees, agents or
representatives, are the property of the Owner. The Contractor will not use any such
materials or copies thereof on other work, nor shall it divulge information on such
materials without the Owner's prior written approval
17. LIENS Contractor shall furnish a list of all fabricators, materialmen,
subcontractors and workmen involved in the Work, logether with evidence satisfactory to
Owner (including a cenificale under oath) of payment of all amounts for wages, materials
rurnished, and other indebtedness of Contractor and Its subcontractors in connection with
thai portion of the Work covered by any invoice. The Contractor shall immediately pay
and discharge any lien or claim fm which the Owner or its property might become subjecl
or liable because of the Work (fat any time there should be evidence of any lien or claim
for which Owner or ilS property might become subject or liable hecause of the Work,
Owner may retain out of any payments to Contractor then due or thereaf\er to become
due an amount sull1cientto completely indemnify Owner against such lien or claim until
such time as Contractor shall deliver to Owner a complete release 01' other document
satisfactory of Owner discharging such lien or claim
page 6
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Owner may at any time pay and discharge such lien or claim and deduct the amount so
paid, togcther with costs, allorncy's fees, and Owncr's rclatcd expenses from any payment
then due or thcreafter to become duc 1.0 Contractor; Including, but not limited to, issuing
third party chceks payable 10 the Contractor and any third party claimant(s) If any lien or
claim remains unsatisfied after final payment has been made, Contractor shall promptly pay
to Owner the entire sum that Owner may be compclled to pay in discharging such lien or
claim, together with all costs, allorney's fees, and related expcnses incurred by Owner
18 TERMINATION Owner shall have the right at any time to terminate this Contract
by giving at least five (5) days' notice in writing to Contractor, who shall thcn be cntitled
to full payment for the part of the Work done in accordance with this Contract up to the
time of such termination, including the retained percentage. Owner shall also reimburse
Contractor for those reasonable expenses necessarily incurred by Contractor because of
the termination for which Contractor has not been otherwise compensated Contractor
shall mitigate its expenses Owner shall not be held liable for any damages, including
those for anticipated pmfits, because of such tennination. Should this Contract be
terminated before the completion of the Work for any cause whatever, Contractor shall
promptly remove its equipment and supplies from Owner's premises Should Contractor
fai/to do so, Owner may remove and storc such equipment and supplies at Contractor's
expense
19. SUSPENSION OF WORK Owncr may at any time stop thc Work or any part
lhereofby giving notice 10 contractor. The Work shall be rcsumed by contractor within
ten (10) days after the date of resumption set by Owner, which shall be within thirty (30)
days of thc dale of suspensi(ln of the Work Owner shall not bc held liable for any
damages, including those for anticipated profits, bceause of Work being suspended, or for
any Work done contrary to the notice of suspension Owner will pay C(lntractor, at rental
rates to be mutually agreed upon at time of suspension, for the construction tools and
equipment furnished by Contractor for the Work which are idle during the period of
suspension. Contractor shall mitigate any rentalpaymenl.
20. CONFLICTS If therc is a conflict betwecn any of the provisions hereof and any of
the proposals, general pmvisions, specifications or any other document or agreement
which may have been executed by or passed between the parties hereto in connection with
the Work, it is underst(lod and agrced that the provisions of this Contract shall be
controlling
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21. AUTHORIZED REPRESENT ^ TIVES Each party hereto may from time 10 time
designate by written notice to the other pany, a person or persons to represent and act for
such pany hereunder, butlhe authority of any such person designated shall not exceed that
specifically granted or limited herein
22. ARBITRATION Upon written demand of the Owner, all disputes, claims or other
issues between the Owner and the Contractor arising out of or relating to Ihis Contract,
including a breach thereof, shall be settled by arbitration in accordance with the
construction industry arbitration nlles of the American Arbitration Assoeialion, and the
judgment upon the award may be entered iu any court having jurisdiction thereof. The
Contractor shall not cause a delay of the Work during an arbitration proceeding.
23. STRICT PERFORMANCE The failure, with or without intent, by either the
Owner or the Contractor, to insist upon the slrict performance of the other party of any
provisions of this Contrael, shall not be deemed to constitute a modification of any
provision hereof, nor shall such failure be deemed to constitute a waiver of the right of
such party at any time thereafter to insist upon performance by the other strictly in
accordance with any provision hereof.
24. SURVIV AL OR REMEDIES The obligations of the Contractor hereunder shall
survive completion of the Work and acceptance thereof by Owner.
2S NOTICES All notices required 01' permitted to be given he;eunder shall be
deemed to be properly given if delivered in writing personally to a pany's authorized
representative or deposited in the United States mail addressed to Owner or Contractor,
as the case may be, at the addresses set forth above, with postage thereon fully prepaid
26. ASSIGNMENT Contractor shall not assign Contractor's rights or obligations or
any sum that may accrue 10 Conlractor hereunder without the prior written consent of
Owner.
27. GOVERNING LAW This Agreement was accepted and exeeuled by the Owner in
Lexington, Fayette County, Kentucky, and shall be governed as to validily, interpretation,
construction and effect by the laws of the Commonwealth of Kentucky If a legal action is
commenced, II shall be commenced and maintained in the Fayette Circuit Court, Fayette
County, Lexington, Kentueky, which shall have exclusive jurisdiction over the action and
the parties thereto with respec.tto the action In any such action, the parties expressly
waive their righl to a jury trial Each party hereto is commercially sophi.sticated, therefore
the Contract shall be interpreted without regard to which party drafted the Contract.
28. CONTRACT DOCUMENTS This Conlract consists of this document and change
orders thereto approved in accordance with paragraph 4 hereof, and lhe following:
page 8
DATE RECEIVED
OA TI ,IIOdI!IIID
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SHERIFF'S DEPARTMENT
BLAIR COUNTY, PENNSYLVANIA
COURTHOUSE, HOLL.lDAYSBURG, PA, 16648
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SHERIFF SERVICE
PROCESS RECEIPT, and AFFIDAVIT OF RETURN
INSTRUCTIONS,
Print t.glbty. Inlurlng ,..Id.bllily of .It c:opItl.
00 not MIlCh any copies. ICID INV.f
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SERVE S N"!:lE 0/' INDIVIDUAL, eOMPANV. CORPORATION ETC.. TO SERViCe OR DESCRipTION OF PRDPERTV TO BlfLEJ;;;\TTACHEO OIl SOlO.
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NOW, lL_, I, SHE IFF OF BLAIR ,COUNTY, PA., do hereby deputize the Sheriff 01
County to execute this Writ and make return thereof accordlllg
to law. This deputation being made at the request and risk 01 the plaintiff,
SHERIFF OF BLAIR COUNTY
8 SPECIAL INSTRUCTIONS OR OTHER INFORMATION ntAT WILL ASSIST IN EXPEDITING SERVICE:
NOTE ONLY APPLICABLe: ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sha,llIlevying upon or allaching Iny property undefwtth!nwrit
may leave !lame without a walchm.1n. in CUSlody of whome....er ie. lound In possession, aftor nolilVing pe,son ollo\'.,. or atlachmenl. wilhoul liablhl.,. on the pill of
luch l1e~UI'l Of the she'illlo any plalnllll heroin for any loss. l1e'itructlon Of removal of any such properlY before sherilfs' safb Itlereof.
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I ACKNOWLEOOE "ECEIPT OF HiE SHERIFF'S RETURN SIONATURE
nJ' AIITliORllFO 1~~lmm AUTHORITV AND TITlF.
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DATE ReceiveD
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SHERIFF'S DEPARTMENT
UtAIA (){)(JN1Y, f1!iNNtlYlVANIA
OOUIHtiOUHI', HOU,IlJAYSIIUAU, PA. 111648
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......----~~--~-..-lJrDiit~--.-----.---
ARNOLD RESTAURANTS, INC.
and FAlOLl'S,
Plalntlffll
v,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-231 Civil
CORKERN CONSTRUCTION
COMPANY, PAUL CHANEY,
A1 ROOFING, JOSEPH L. DUEY,
JR., and JOE DUEY PLUMBING
& HEATING
Civil Action - Law
Defendants
ANSWER WITH NEW MATTER OF DEFENDANT, CORKERN CONSTRUCTION COMPANY
TO PLAINTIFFS' COMPLAINT
AND NOW, Defendant, Corkern Construction Company, by and through their counsel,
Thomas, Thomas & Hafer, LLP, hereby answers Plaintiffs' Complaint as follows:
1, Denied. After a reasonable investigation, Defendant, Corkern Construction
Company (hereinafter referred to as "Corkern"), Is without sufficient knowledge or Information to
form a belief as to the truth of these averments.
2. Denied. After a reasonable Investigation, Defendant Corkern is without sufficient
knowledge or information to form a belief as to the truth of lhese averments.
3. Denied. The allegations contained in this paragraph of Plaintiffs' Complaint are
denied in that Defendant Corkern Is no longer Incorporated In the state of Kentucky, By way of
further response, at all times relevant to this litigation, Defendant Corkern was a corporation
organized and existing under the state of Kentucky with a principal place of business located at
5000verbrook Drive, Nicholasville, Kentucky, 40356.
4. Denied. The allegations contained In this paragraph of Plaintiffs' Complaint are
denied In that after a reasonable investigation, Defendant Corkern is without sufficient
knowledge or Information to form a belief as to the truth of these averments.
5. Denied. The allegations contained in this paragraph of Plaintiffs' Complaint are
denied in that after a reasonable investigation, Defendant Corkern is without sufficient
knowledge or information 10 form a belief as to the truth 01 these averments.
6, Admitted.
7, Denied, The allegations contained In this paragraph of Plaintiffs' Complaint are
denied In that after a reasonable Investigation, Dofendant Corkern Is without sufflolent
knowledge or Informiltlon sufficient to form Il belief IaS to these averments.
8. Denied. The allegations oontalned In this paragraph of Plaintiffs' Complaint are
denied In that after a reasonable Investigation, Defendant Corkern is without sufflolent
knowledge or Information sufflolent to form a belief as to these averments.
9. Admitted,
10. Admitted.
11. Admitted.
12, Denied. It Is specifically denied that Corkern retained Duey to Install and/or
construct heating, ventilation and air conditioning "HVAC" systems at the subject restaurant. To
the contrary, Duey was retained via contract with Corkern Construction to perform plumbing
work for the building.
13, Denied. The allegations contained In this paragraph of Plaintiffs' Complaint are
denied In that on or about January 15, 1997, construction of the subject restaurant was not 92%
complete, To the conlrary, construction of the restaurant was less than 65% complete.
14. Admitted and denied. Admitted that on or about January 15, 1997, a fire
occurred at the subject restaurant during the performance of the construction work, including but
not limited to roof construction and/or HVAC Installation and/or construction and/or plumbing
work. The remaining averments of this paragraph are denied as conclusions of law to which no
respollslve pleading Is required under the Pennsylvania Rules of Civil Procedure. To the extent
that portions of the remaining averments of this paragraph can be construed as factual In
nature, said allegations are denied in that after a reasonable Investigation, Defendant Corkern Is
without sufficient knowledge or information to form a belief as to the truth of these averments.
15. Denied. The allegations contained in this paragraph of Plaintiffs' Complaint are
denied as conclusions of law to which no responsive pleading is required under the
Pennsylvania Rules of Civil Procedure.
COUNT I
Negligence
Arnold ReataurantL Inc. and Fazoli'. v, Corkern Construction Company
16, The allegatione ;onlained In this paragraph of Plaintiffs' Complaint merely
incorporate paragraphs 1 through 15 as if fully set forth at length and, thus, requires no
2
responsive pleading by Defendant Corkern. To the extent that portions of this paragraph can be
construed liS factual In nature, Defendant Corkern hereby Incorporates Its answers to
paragraphs 1 through 15 of Plaintiffs' Complalnl as if fully set forth herein at length,
17. The allegations contained In paragraph 17 of Plaintiffs' Complaint, Including
subparagraphs (a) through (g) constltuto conclusions of law to which no responSive pleading Is
required under the Pennsylvania Rules of Civil Procedure, By wal' of further response,
paragraph 17(a)(1) and paragraph 17(a)(2) have been stricken from Plaintiffs Complaint by
Stipulation of Counsel and, therefore, no responsive pleading Is required,
18. Denied, The allegations contained In this paragraph of Plaintiffs' Complaint
constitute conclusiOns of law to which no responslvo pleading Is required under the
Pennsylvania Rules of Civil Procedure. To the extent that portions of this paragraph can be
construed as factual In nature, said allegations are denied In that after a reasonable
investigation, Defendant Corkern is without sufficient knowledge or Information to form a belief
as to the truth of these averments.
WHEREFORE, Defendant, Corkern Construction Company, respectfully requests that
Judgment be entered In Its favor and against Plaintiffs.
COUNT tI
Breach of Implied Warranty
Arnold Restaurants, Inc, and Fazoli's v. Corkern Construction Compan\(
19, The allegations contained In this paragraph of Plaintiffs' Complaint merely
Incorporate parllgraphs 1 through 18 of Plaintiffs' Complaint as if fUlly set forth at length and,
thus, requires no responsive pleading, To the extent that portions oflhls paragraph can be
construed as factual in nature, Defendant Corkern Incorporates herein by reference Its answers
to paragraphs 1 through 18 of Plaintiffs' Complaint as if fully set forth herein at length,
20. Denied, The allegations contained in this paragraph of Plaintiffs' Complaint
constitute conclusions of law to which no responsive pleading Is required under the
Pennsylvania Rules of Civil Procedure.
21. Denied. The allegations contained In this paragraph of Plaintiffs' Complaint
constitute conclusions of law to which no responsive pleading is required under the
Pennsylvania Rules 01 Civil Procedure.
22, Denied. The allegations contained in this paragraph of Plaintiffs' Complaint
constitute conclusions of law to which no responsive pleading Is required under the
3
Pennsylvania Rules of Civil Procedure, To the extent that portions of this paragraph could be
construed as factual In nature, said allegations are denied In that after a reasonable
Investigation, Defendant Is without sufficient knowledge or information 10 form a belief as to the
truth of these averments.
23. Denied. The allegations contained In lhls paragraph of Plaintiffs' Complaint
constitute conclusions of law to which no responsive pleading Is required under the
Pennsylvania Rules of Civil Procedure.
WHEREFORE, Defendant, Corkern Construction Company, respectfully requests that
judgment be entered In Its favor and against Plaintiffs.
COUNT III
Broach of Contract
Arnold Reatauranta, Inc. and Fazoll'. v. Corkern Construction ComDany
24. The allegations contained In paragraph 24 of Plaintiffs' Complaint merely
incorporate paragraphs 1 through 23 as II fully set forth at length and, thus, requires no
responSive pleading. To the extent that a responsive pleading is deemed necessary, Defendant
Corkern Incorporates Its answers to paragraphs 1 through 23 of Plaintiffs' Complaint as if fully
set forth herein at length.
25. Denied. The allegations contained in this paragraph of Plaintiffs' Complaint
constitute conclusions of law to which no responsive pleading Is required under the
Pennsylvania Rules of Civil Procedure.
26, The allegations contained In this paragraph of Plaintiffs' Complaint constitute
conclusions of law to which no responsive pleading Is required under the Pennsylvania Rules of
Civil Procedure, By way of further response, the construction contract between Plaintiffs and
Defendant Corkern speaks for itself.
27. The allBgatlons contained In this paragraph of Plaintiffs' Complaint .constltute
conclusions of law to which no responsive pleading Is required under the Pennsylvania Rules of
Civil Procedure. By way of further response, the construction contract between Plaintiffs and
Defendant Corkern speaks for Itsell,
28. The allegations contained In this paragraph of Plaintiffs' Complaint constitute
conclusions of law to which no responsive pleading Is required under the Pennsylvania Rules of
Civil Procedure. By way of further response, the construction contract between Plaintiffs and
Defendant Corkern speaks for itself.
4
29. Denied. The allegations contained in this paragraph of Plaintiffs' Complaint
constitute conclusions of law to which no responsive pleading Is required under the
Pennsylvania Rules of Civil Procedure
30, The allegations contained in thl$ paragraph of Plaintiffs' Complaint constitute
conclusions of law to which no responsive pleading Is required under the Pennsylvania Rules of
Civil Procedure. By way of further response, the construction contract between Plaintiffs and
Defendant Corkern speaks for Itself.
31. Denied. The allegations contained In this paragraph of Plaintiffs' Complaint
constitute conclusions of law to which no responsive pleading Is required under the
Pennsylvania Rules of Civil Procedure. To the extent that portions of this paragraph could be
construed as factual In nature, said allegations are denied in that after a reasonable
Investigation, Defendant Corkern is without sufficient knowledge or information to form a belief
as to the truth of thase averments.
WHEREFORE, Defendant, Corkern Construction Company, respectfully requests that
judgment be entered in its favor and against Plaintiffs.
COUNT IV
Negligence
Arnold Re.!!l!urants, Inc. and fazoll's v. A.1Booflna
32-34. The allegations contained in paragraphs 32 through 34 of Plaintiffs' Complaint
are directed to parties other than Defendant Corkern and, thus, require no responsive pleading
on behalf of Defendant Corkern.
WHEREFORE, Defendant, Corkern Construction Company, respectfully requests that
judgment be entered in Its favor and against Plaintiffs.
COUNT IV (slcl
Breach of Implied Warranty
Arnold Restaurants,Jnc, and Fazoll's v. A1 Roofing
35-39. The allegations cClntained in paragraphs 35 through 39 of Plaintiffs' Complaint
are directed to parties other than Defendant Corkern and, thus, require no responsive pleading
on behalf of Defendant Corkern.
WHEREFORE, Defendant, Corkern Construction Company, respectfully requests that
judgment be entered In Its favor and against Plaintiffs.
5
COUNT VI
Negligence
Arnold Rugur.nt.. Inc,1J1Jl4018Dh L, Duey. Jr, and Joe Duey Plumblna & Heatlna
40-42, The allegations contained In paragraphs 40 through 42 of PlalntlffE' Complaint
are directed to parties other than Defendant Corkern and, thus, requires no responsive pleading
from Defendant Corkern.
WHEREFORE, Defendant, Corkern Construction Company, respectfully requests that
Judgment be entered In Its favor and against Plaintiffs.
COUNT VII
Breach of Implied Warranty
Am9Js! Relgurantl. Inc. and Jo.eDh L. Duey. Jr. and Joe QUOY Plumblna & Heatlna
43-47. The allegations contained In paragraphs 43 through 47 of Plaintiffs' Complaint
are directed to parties other than Defendant Corkern and thus require no responsive pleading
on behalf of Defendant Corkern.
WHEREFORE, Defendant. Corkern Construction Company, respectfully requests that
judgment be entered in Its favor and against Plaintiffs.
NEW MATTER
48. The averments set forth in paragraphs 1 through 47 above are incorporated herein
by reference as though fully set forth herein.
49. Liability on the part of Defendant Corkern Construction Company Is specifically
denied.
50. Plaintiffs have failed to allege a cognizable cause of action against Defendant
Corkern Construction Company in negligence based on the defense of the economic loss
doctrine.
51. Plaintiffs have failed 1(1 state a cognizable cause of action in breach of contract
based on paragraph 11 of the r.onstructlon contract between Plaintiffs and Corkern in that final
acceptance of the work by the owner had not yet taken place at the time of the alleged loss.
52, Corkern Construction Company made no representations or warranties other than
those contained In the contract between Corkern Construction Company and Plaintiffs and any
plans and specifications prepared pursuant thereto.
53. Plaintiffs' claims may be barred by the applicable statute of limitations.
6
WHEREFORE, Defendant. Corkern Construction Company, respectfully requests that
judgmant be entered In Its favor and against Plaintiffs.
NEW MATTER IN THE NATURE OF A CROSS CLAIM PURSUANT TO RULE 2252(d) OF THE
PENNSYLVANIA RULES OF CIVIL PROCEDURE AGAINST DEF~NOANTS PAUL CHANEY,
A1 ROOFING. JQ.SEPH L, DUEY, JR.. and JOE DUEY PLUMBING & HEATING
54. The averments set forth in paragraphs 1 through 53 above are Incorporated herein
by reference as though fully set forth herein.
55, liability on the part of Defendant Corkern Construction Company Is speclTlcally
denied,
56. II the averments contained in the Plaintiffs' Complaint are established, said
averments being specifically denied, they may relate to Defendant Corkern, then the damages
complained of were caused solely by the Defendants Paul Chaney, A1 Roofing, Joseph L. Duey,
Jr. and Joe Duey Plumbing & Heating.
57. Defendants Paul Chaney, A1 Roofing, Joseph L. Duey, Jr. and Joe Duey Plumbing
& Heating have been joined herein to protect Defendant Corkern's right of Indemnity and
contribution and Defendant Corkern avers that the above-said Defendants are alone liable to the
Plaintiffs or, In the alternative, that the above said Defendants are liable over to Defendant
COlkern or jointly and severally liable on Plaintiffs' cause of action.
58. Corkern Construction believes and therefore avers that Paul Chaney, A1 Roofing
and Joseph L. Duey, Jr. and Joe Duey Plumbing & Heating and are liable to the Plaintiffs, are
liable over to Delendant Corkern Construction Company on the claims set forth in the Complaint
and/or are liable to Defendant Corkern Construction Company by way of contribution and/or
Indemnity.
59. Pursuant to the Petitions 01 the subcontract agreements between Defendant
Corkern Construction Company and Defendants, Paul Chaney, A1 Roofing and Joseph L. Duey,
Jr. and Joe Duey Plumbing & Heating, and by operation of law, Defendants Paul Chaney, A1
Roofing and Joseph L. Duey, Jr. and Joe Duey Plumhlng & Heating owe Defendant Corkern
Construction Company obligations of defense, indemnity and contribution.
7
AND NOW, come Defendants, Paul Chancy, individunUy, trading as, and doing
business as, A-I Roofing and A-I Roofing, by and through their counsel, GOII', Moser,
Dell & Loughney, and Patrick J. Loughney, Esquire and files the fOllowing Answer and
New Mntter, to PlaintilT.q' Complaint.
MlS..WEB
I, The aVemlents contained within of Plaintiffs' Complaint are denied pursuant to
Pa. R,C,P, 1029(e), To the extent that a further responsive pleading is reqllired, it is denied
that there existed any implied warranty betwecn Defendants, Pnul Chaney nnd/or A.I
Roofing, and the Plaintiff.
2, To the extent that a responsive pleading is required, it is denied thnt Defendants
Paul Chnney and/or A-I Roofing, breached IIIIY implicd wnn'anty 10 the Plnintiff and on the
contrary perfomled its work ill a workmanshiplike manner.
3. It is denied lhat Defendnnts Paul Chancy and A-I Roofing or its agents, gervnJ1ls
or employees possessed, maintained or conlrolled any portion of the premises complained of
01' any instrumentality the Plaintiffs complain of.
WHEREFORE, Defendants Paul Chancy, individually, trading as, and doing
business as, A-I Roofing and A-I Roofing, denies liability 10 Plaintiffs and demands
judgment in its favor.
NEW MATTER
4, The terms of any contract helween this party and any other party arc plead as a
defense to any claim in this netion,
5, Some or all of I'lainti ffs' claims may be harred by the applicable Statute (If
Limitations,
"~I
I
,
ji
I
Ii
I:
,
II
I 14. Admitted in part, denied in part. It is admitted
I
,
Ithat on or about January 15, 1997, a fire oocurred at the
Ii
1!8Ubjeot restaurant. To the extent the averments of Paragrapb 14
~allege the damages or injuries suffered by Plaintiffs, after
Ijreasonable investigation, Duey is without. knowledge or
I.
~information sufficient to form a belief as to the truth of the
~matters asserted and strict proof thereof is demanded at trial.
/'
Ii 15. Denied. 'l'he averments of Paragraph 15 constitute
Ilconclusions of law to which no response is required. '1'0 the
,.
/,extent a response is required, said averments are denied. By
,
~way of further answer, to the extent the averments of Paragraph
!i
I'
115 allege that Plaintiff suffel:ed damages, after reasonable
"
i
investigation, Duey is without knowledge or information
i
I
iSUfficient to form a belief as to the truth of the matters
asserted and strict proof thereof is demanded at trial.
COUNT I - NEGLIGENCE
PLAINTIFFS V. C~RKERN CONSTRUCTJON. CO.
16. Duey hereby incorporates Paragraphs 1 t.hrough 15
of his Answer 8S if the same were fully set forth herein.
17. - 18. The averment a of Paragraphs 17 through 18
are directed at a Defendant other than Duey and, therefore, no
response is required by Duey.
-5-
,.
I
,I
~ [
:f
I:
,
I,
e
!:
COUNT V - BRBACH OF IMPLIBD WARRANTY
(Incorrectly COUNT IV in Plaintiff.' Co.plaint)
r..~~ V. A ,j_ROOFI~
35. Duey hereby inoorporates Paragraphs 1 through 34
lof his Answer as if the same were fully set forth he~ein.
,
,
36. - 39. The averments of Paragraphs 36 through 39
are directed at a Defendant other than Duey and, therefore, no
I'response is required by Duey.
I:
II WIfEREFORE, the Defendanj;s, Joseph L. Duey, Jr. and Joe
,:DUey Plumbing r. IffJatJ.ng, Inc. respectfully request, this
~Honorable Court enter judgment in their favor and dismiss
Ii Plaintif fa Arnold Hestaurnntn, Inc. f.\nd ~'f.\zoU' a Complaint with
I/Prejudice. '
I
COUNT VI - NBGLIGBNCB
PLAINTIFFS V. PUBY
40. Duey hereby incorporates Paragraphs 1 through 39
,of his Answer as if the name were fully set forth herein.
41. Denied. The averments of Paragraph 41 constitute
oonolusions of law to whioh no response is required. To the
I
extent a response is required, said averments are deni.ed. By
way of further answer, to the extent the averments of Paragraph
141 alloge the damages and/or injuri.os of the Plai.nti.ffs, after
-8-
/
/.
/
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IN 'I'III~ COtJR'1' OF' CCt.y.10N PLEJIB OF
CLMllE:lU,ANIl COUNl'Y, PI<:NNSYLVJlNIA
No, 99-231 cIvIl 'Ierm
CIVIl, AC'J'ION - LAW
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CAMflRIA COUNl'Y, PI~NNHYL\iJINIA
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