HomeMy WebLinkAbout99-02755
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JOliN F. WALTER EXCA V ATING, INC., : COURT OF COMMON PLEAS OF
: CUMBERI.ANI) COUNTY, PENNSYLVANIA
PLAINTIFF
\'.
NO. CIVIL 1999 - 2755
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IIARRY II. FOX, JR., and JOliN n. FOX,
t1a1 FOX AND FOX, a pRrtnersblp,
CIVIL ACTION .. LAW
DEFENDANTS
DEFENDANT'S PRETRIAL MEMORANDUM
I. STATEMENT OF FACTS AS TO LIABILITY AND DAMAGES
This casc ariscs out of the Plaintiff's claims that the Defendant has breached a contract made
between the parties by failing to pay the full amount of outstanding invoices duc to Plaintiff.
In the month of September 1995, Plaintiff and Defendant cntered into a contract agrccmcnt
where Plaintiff agreed to perfOlm cenain excavating and paving work. Under the terms of the contract,
Defendant agreed to pay Plaintiff $140,238.00 for the work. The contract also provides that Defendant
was to pay Plaintiff only upon acceptance by West Pcnnsboro Township (hereimfter called "Township")
of the work perfomled by Plaintiff and upon release of thc money held by the Township under a
completion bond. Further, Plaintiff was responsible to notify thc Township so the Township could make
the Ilecessary inspections for acceptance of the work. lbe Plaintiff agreed to begin the work on
September 25, 1995 and have thc work completed by Deccmber 15. 1999,
To datc, Defendant has paid all amounts payablc to Plaintiff for that construction that the
Township has acccpted and for which it has released bond complction money.
On May 7. 1999, PlaintifT initiated this action by filing a complaint in the Cumberland County
Court of Common Pleas, claiming that Defendant was in breach of the contract. Subsequently, on July
26. 1999, Defendant filoo Preliminary Objections to thc Plaintiffs complaint.
r-,""\ - 6
'i"
On or about January 7, 2000, Defendant Fox lHed an Answer With New Matter and Countcrclaim
ancr this Honorable Court dcnicd thc Dcfcndant's ('rcliminury OhjL'Ctions. Plaintiff Waltcrs filcd an
Answer to Defendant's New j,1allcr and Cowllcrclaim on or about May 5, 2000. On or about June 27,
2000, Plaintiff scrved Intcmlgatorics and Request for Production of Documcnts on the Dcfendant. On or
about Scplenlber 7, 2000, Dct~'11dant filed Responses to Plaintiff's Intcrrogatories and Production of
Documcnts.
Subsequent to the receipt of Plaintiffs Discovery Responses, Plaintiff's counsel listed the instant
action tor the January 200 I trialtenn. On October 30, 2000, after Defcndant became aware of problems
and concerns with the workmanship of the construction projcct at issue, Detendant filed a Petition for
Leave of Court to Amcnd Defcndant's Answer with New Maller and Counterclaim. In addition,
Dcfendant has served discovery requests in the form of Interrogatories and Request for Production of
Docunlents on Plaintiff. On or about November 22, 2000, in response to a Rule to Show Case issued by
this Honorable Court, the Plaintiff filed an Answer to Defendant's Petition for Leave of Court to Amend
Defendant's Answer with New Maller and Counterclaim, By way of lellm-to this Court dated Novcmber
22,2000, the Defendants fonnally objected to the listing of this mallcr for trial on the grounds of the need
for completion of discovery and thc nero for decision regarding Defendant's Petition to Amend Answer
With New Maller and Counterclaim.
Once it became obvious to Defendants that the Plaintiff as part of a resolution of this malleI'
would not agrec to complete the work necessary to finish the projcct, Defendant made arrangements to
have the work on Phase 1I conml~!cd. During tbe completion of the work on Phase II, certain deficiencics
were disrovercd including, inter alia. lack of sufficient stone dcpth and improper grading, This newly
disc..wered infonnation, prompted the necessity for the Defendant's Pelition to Amend its Answer With
New Maller and Counterclaim.
2
II, QUESTIONS PRESENTED
A. Whcthcr Defendant Fox should be pennilled to amend its Answer With New Maller and
Counterclaim in light of the ncwly discovered dcficiencies in the Plaintiff's workmanship on the project
at issue?
SUGGESTED ANSWER: YES
Rule 1033 of the Pennsylvania Rulcs of Civil Procedure pcmlits a party with leave of court at any
time to amend its pleading. 1be courts have discretion at any stage of the legal proceedings to pennit an
amendmcnt jf it is necessary for the proper dL'Cision on the merits (1ft"," case. MaeGrel!or vs, Media, 395
Pa. Superior Court 221, 576 A.2d 1123 (1990). The court may deny an amendment where there is
prejudice to the other party be.cause of delay in seeking the amendment. However, mere delay is not a
sufficient basis to deny an amendment. The opposing party must show prejudice, Brooks vs.
~eMenamin. 349 Pa. Superior Court 436503 A,2d 446 (1986). Mere prejudice because the amendment
requested strengthens the defense of the Defendant is n~t the type of prejudice required, The opposing
party must show that there is some substantial prejudice to his legal position. For example, where there is
a request to amend after an opposing pal1y has presented all his evidence or where the opposing party has
incurred substantial costs to present his case might be considered sufficient prt'judice, Ga~...YS.,
Mankamver, 485 Pa. 525,403 A.2d 87 (1979).
In general, amendments of the pleadings should be allowed with great liberality at any stage of
the proceedings in order to secure a proper determination of the case. Roberson vs, Davis. 397 Pa.
Superior Court 292, 580 A.2d 39 (J990).
Defendants were not aware of certain deficiencies in the workmanship of the Plaintiff's work on
the project with regard to improper stone dcpth and grading, until Defendants hired another conlract0r to
complete the project. The Dcfendants did not complete the paving project in hopes that a resolution of
this matter would result in the Plaintiff fulfilling its contractual obligations. Whell it became clear that
that would not be part of any resolution of this maller, Defendants attcmptcd to have the .....ark completed.
3
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It was not until that time in September and October of 2000 at which Defendants bccame aware
of these deliciencies. It is noll-d thatlhe Defendant's reply to Plaintiff's Discovery which was served on
or about September 7, 2000, indieatL-d that at that time Defendants had not yet hired anyone to complcte
the project. ll1ese particular problems would not have been discovered by Defendant but for another
contractor beginning to complete the job.
In order for this matter to be fully and fairly litigated, the Defendants should be granted the
opportunity to present evidence of the deficiency in the workmanship of Plaintiff as it regards to their
request for their additional payment of money. While it is true t1J.1tthe facts with regard to this particular
action occurred several Y<.'<lrs ago, the litigation is relatively young in tlJ.1t the Complaint was tiled on May
7,1999. The ease has proceeded through Preliminary Objections and through the Defendant's Answer to
New Malter and Counterclaim filed on or about May 5, 2000. There has not been any unreasonable delay
of tillS malleI' by the parties and Defendants contend that allowing the Amendment would not prejudice
the Plaintiff with unreasOl;~ble delay. After that time should discovery be complcted, it would be
appropriate to re.listthis malleI' for trial.
B. Whetiter Defendant Fox is entitled to recover the late charges pursuant to a signed
agrccment which calls for late charges to be assessed against Plaintiff for failure to complete the
project?
SUGGESTED ANSWER: YES.
C. Whether Defendant Fox is required to pay additional monies to Plaintiff when
Plaintiff has fi:ed to complcte the contemplated project as evidenced by the fact that the
township has not fully released the bond held for the paving work?
SUGGESTED ANSWER: NO.
D. Whether Defendant Fox is required to pay any monics to Plaintiff Walters in
excess of the contract amount?
SUGGESTED ANSWER: NO.
4
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On or about January 7, 2000, Dcfendant Fox filed an Answer With New Maller and Counterclaim
aller this Honorable Court denied thc Defendant's Preliminary Objections. Plaintiff Walters filcd an
Answer to Defendant's New Maller and Counterclaim on or about May 5, 2000. On or ab-Jut June 27,
2000, Plaintiff servcd Interrogatories and Request for Production of Documents on the Defendant. On or
about September 7, 2000, Defendant filed Responses to Plaintiff's Interrogatories and Production of
Documcnts,
Subsequent to the receipt of Plaintiff's Discovery Responses. Plaintiff's counselliste!! the instant
action for the Janunry 200 I trial term. On October 30, 2000, after Defendant became aware of problems
and concerns with the workmanship of the construction project at issue, Defendant filed a Petition for
Leave of Court to Amend Defendant's Answer with New Malter and Counterclaim, In addition.
Dcfendant has served discovery requcsts in the form of Intmogatories and Request for Production of
Documents on Plaintiff. On or about November 22, 2000, in response to a Rule to Show Casc issued by
this Honorable Court, the Plaintiff filed an Answer to Defendant's Petition for Leave of Court to Amend
Dcfendant's Answer with New Maller and Counterclaim. By way of leller to this Court dated November
22,2000, the Defendants fonnally objected to the listing of this matter for trial on the grounds of the need
for completion of discovery and the need for decision regarding Defendant's Petition to Amend Answer
With Ncw Maller and Counterclaim.
Once it became obvious to Dcfendants that the Plaintiff as part of a resolution of this mailer
would not agree to complete the work necessary to finish the project, Defendant made arrangements to
have the work on Phase II completed. During the completion ofthc work on Phase II. certain deficiencies
were discovered including. inTer alia. lack of sufficient stone depth and improper grading. This newly
discovercd information. prompted the necessity for the Defendant's Petition to Amend its Answer With
New Matter and Counterclaim,
2
II, QUESTIONS PRESENTED
A, Whether Defendant Fox should be pennilled to amend its Answer With New Malter and
Counterclaim in light of the ncwly discovered deficiencies in the Plaintiffs workmanship on the prcject
at issue?
SUGGESTED ANSWER: YES
Rule 1033 of the Pennsylvania Rules of Civil rrocedure pennits a party with leave .')f court at any
time to amend its pleading. The courts have discretion at any stage of the legal proceedings to pennit an
amendment ifit is necessary for the proper decision on the merits of the case. MacGrel!or vs. Media, 395
Pa, Superior Court 221, 576 A,2d 1123 (1990). The court may deny an amendment whom: there is
prejudice to the other party because of delay in seeking the amendment. However, mere delay is not a
sufficient basis to deny an amendment. The opposing party must show prejudice. Brooks v~
McMenamin, 349 Pa. Superior Court 436503 A.2d 446 (1986). Mere prejudice because the amendment
requested strengthens the defense of the Defendant is not the type of prejudice required. The opposing
party must show that there is some substantial prejudice to his legal position. For example, where there is
a request to amend after an opposing party has presented all his evidence or where the opposing party has
incurred substantial .:osts to present his case might be considered sufficient prejudice. Garv vs.
Mankm!1ver, 485 Pa, 525, 403 A.2d 87 (1979),
In general, amendments of the pleadings should be allowed with great liberality at any stage of
the proceedings in order to secure a proper d~1em1ination of the case. Roberson vs, Davis, 397 Pa,
Superior Court 292, 580 A.2d 39 (1990).
Defencbnts were not aware of certain deficiencies in the workmanship of the Plaintiff's work on
the project with regard to improper stone depth and grading, until Defendants hired another contra~1or to
complcte the project. The Defendants did not complete the paving project in hopes that a resolution of
this matter would rcsuh in the Piaintiff fulfilling its c..1ntractual obligations. When it became clear that
that would not be part of :my resolution of this mlltter. Defendants al1empled to have the work completed.
3
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It was not until that time in September and October of 2000 at which Defendants became aware
of these deficiencies. It is noted that the Defendant's reply to Plaintil'rs Discovery which was served 011
or about September 7, 2000, indicated that at that time Defendants had not yet hired anyone to complete
the project. 'These particular problems would not have been discovered by Defendant but for another
contractor beginning to complete the job.
In order for this maller to be fully and fairly litigated, the Defendants should be granted the
opportunity to present evidence of the deficiency in the workmanship of Plaintiff as it regards to their
request for their additional payment of money, While it is true that the facts with regard to this particular
action occurred several years ago, the litigation is relatively young in that the Complaint was f1led on May
7, 1999, The case has proceeded through Preliminary Objections and through the Defendant's Answer to
New Maller and Counterclaim filed 011 or about May 5, 2000. There has not been any wrreasonable delay
of this maller by the parties and Defendants contend that allowing the Amendment would not prejudice
the Plaintiff with unreasonable delay. After that time should discovery be completed, it would be
appropriate to re-list this mailer for trial.
B. Whether Dcfendant Fox is entitled to recover the late charges pursuant to a signed
agreement which cal1s for late charges to be assessed against Plaintiff for failure to complete the
project?
SUGGESTED ANSWER: YES.
C. Whether Defendant Fox is required to pay additlonal monies to Plaintiff when
Plaintiff has filed to complete the contemplated project as evidenced by the fact that the
township has not ful1y released the bond held for the paving work?
SUGGESTED ANSWER: NO.
D, '.\lhctltcr Defendant Fox is required to pay any monies to Plaintiff Walters in
excess of the contract amoilnt?
SUGGESTED ANSWER: NO,
4
E. Whether there W'lS a valid settlement agreement reached between the parties
when it was premised on the fact that the project had been completed when in fact it was still
uncompleted?
SUGGESTED ANSWER: NO,
III. SUMMARY OF LEGAL ISSUES REGARDING ADMISSmlLITY OF EVIDENCE
Defendants are not aware of any special issues regarding admissibility of evidence at this time.
IV. WITNESSES
A, Defendant, Harry H. Fox. Jr.
B. Witnesses to support allegations to be made pursuant to amendment of Defendant's
Answer with New Maller and Counterclaim.
C. Defendant reserves the right to supplement this list and to call all witnesses identified by
PlaintitT.
V. EXIImITS
A. All documents attach~.I as Exhibits to Defendant'~ Answer With New Matter and
Counterclaim as well as Exhibits attached to other Pleadings.
B. All Exhibits as identified by PlaintitT.
C, Defendant reserves the right to supplement this list with regard to items raised in
Defendant's Petition to Amend Answer With New Maller and Countcn:laim,
VI, SETTLEME/Io'T PROPOSAL
Prior to the discovery of deficiencies in workmanship, Defendant had otTered $14,848.36. The
Plaintiff's se\tlement demand is $24,000.00.
~
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Respectfully submitted,
By:
1~1(t'ruGHES
..::u r&w~'n-
Mark D, Schwartz, Esquire
60 West Pomfret Street
Carlisle, PA 17013
717-249-2353
Supreme Court 1.D, No: 70216
Attorney for Defendants,
Harry H. Fox, Jr" and Jobn H. Fox
tI&IFOX & FOX, a partncrnhip
6
JOHN F. WALTER EXCA V ATlNG, INC" : IN THE COURT OF COMMON PLEAS OF
Plaintiff
v,
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
IL\RRY H, FOX, JR., and JOHN II, FOX,
t1a1 FOX AND FOX, a partnership,
Defendants
NO. CIVIL 1999-2755
CERTIFICATE OF SERVICE
I, Mark D. Schwartz, do hereby certify that I am this day serving a true and correct copy of the
foregoing document upon the person, and in the manner indicated below, which selVice satisfies the
requirements of the Pennsylvania Rules of Civil Procedure, by depositing the same with the United States
Post Office in Carlisle, Pennsylvania, postage prepaid, and addressed as follows:
Theodore A. Adler, EsqUIre
Thomas O. Williams. Esquire
REAGER & ADLER, P.C.
2331 Market Street
CampHill,PA 17011
B"X'~::
Mark D, Scbwartt, E5quire
60 We5t Pomfret Street
CarU5lr, PA 17013
717-249-2353
Supreme Court I.D. # 70216
Attorney for the Defendant5,
ilarry II, Fox, Jr. and John II, Fox
tis Fox and Fox, a Partnenhip
Date: llecember ---b-"(fC . 2000
,
,
JOHN F. WALTER EXCA V A TING,INC" : COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
v.
NO, CIVIL 1999 - 2755
HARRY H, FOX, JR., and JOHN H. FOX,
t1a1 FOX AND FOX, a partnership,
CIVIL ACTION - LAW
DEFENDANTS
DEFENDANT'S PRETRIAL MEMORANDUM
I. STATEMENT OF FACTS AS TO LIABILITY AND DAMAGES
This ease arises out of the Plaintiffs claims that the Defendant has breached a cvnlract made
between the parties by failing to pay the full amount of outstanding invoices due to Plaintiff,
In the month of September 1995, Plaintiff and Defendant entered into a contract agrccolent
where Plaintiff agreed to perfllnn cer\1lin excavating and paving work. Under the tenus of the contract,
Defendant agreed to pay Plaintiff $140.238.00 for the work. The contract also provides that Defendant
was to pay Plaintiff only upon acceptance by West Pennsboro Township (hereinafter called "Township")
of the work perfonned by Plaintiff and upon release of the money held by the Township under a
completion bond. Further, Plaintiff was responsible to notify the Township so the Township could make
the necessary inspections for acceptancc of the work. The Plaintiff agre<:d to begin the work on
September 25, 1995 and have the work completed by December 15, 1999.
To date, Defendant has paid all amounts payable to Plaintiff for that construction that the
Township has accepted and for which it has released bond completion money.
On May 7, 1999, Plaintiff initiated this action by filing a com!llamt in the Cumber!:md County
Court of Common Pk.as, claiming that Defendant was in breach of the contract. Subsequently, on July
26, 1999, Defendant filed Preliminary Objections to the Plaintiffs complain\.
On or about January 7, 2000, Defendant Fox filed an Answer With New Maller and Counterclaim
after this Honorable Court denied the Defendant's Preliminary Objections. Plaintiff Walters liled an
Answer to Defendant's New Malter and Counterclaim on or about May 5, 2000, On or about June 27,
2000, Plaintiff served Interrogatories and Request for Production of Documents on the Defendant. On or
about September 7, 2000, Defendant filed Responses to Plaintiffs Interrogatories and Production of
Documents.
Subsequent to the reccipt of Plaintiffs Discovery Responses, Plaintiffs counsel listed the instant
,
["
,
action for the January 2001 trialtcnn. On October 30,2000, after Defendant became aware of problems
and concerns with the worlananship of the cons\nlction project at issue, Defendant filed a Petition for
Leave of Court to Amend Defendant's Answer with New Maller and Counterclaim. In addition,
Defendant has served discovery requests in the fonn of Interrogatories and Request for Production of
Documents on Plaintiff. On or about November 22, 2000, in response to a Rule to Show Case issued by
this Honorable Court, the Plaintiff filed an Answer to Defendant's Petition for Leave of Court to Amend
Defendant's Answer with New Maller and Counterclaim. By way of leller to this Court dated November
22, 2000, the Defendants fonnally objected to the listing of this matter for trial on the grounds of the need
for completion of discovery and the need for decisicn regarding Defendant's Petition to Amend Answer
With New Maller and Counterclaim.
Once it bccanje obvious to Defendants that the Plaintiff as part of a resolution of this matter
would not agree to complete the work necessary to finish the project, Defendant made arrangements to
have the work on Phase II completed. During the completion of the work on Phase II, certain deficiencies
were discovered including, inter alia, lack of sufficient stone depth and improper grading. This newly
discovered infol1D3tion, prompted the necessity for the Defendant's Petition to Amend its Answer With
New Matter and Countcrclaim.
~
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Defendants were not aware of certain deficiencies in the workmanship of the Plaintiff's work on
<........_;.
n. QUESTIONS PR.ESENTED
A. Whether Defendant Fox should be pc-nnilled to amend its Answer With New Maller and
Counterclaim in light of the newly discovered deficiencies in the Plaintiff's workmanship on the project
at issue?
SUGGESTED ANSWER: YES
Rule 1033 of the Pennsylvania Rules of Civil Pr~cedure pennits a party with leave of c,ourt at any
time to amend its pleading. The courts have discretion at any stage of the legal proceedings to pennit an
amendment ifit is necessary for the proper decision on the merits of the case. MacGregor vs. Medig, 395
Pa. Superior Court 221, 576 A,2d 1123 (1990). The court may deny an amendment whP.!'e there is
prejudice to the other party because of delay in seeking the amendment. However, mere delay is not a
sufficient basis to deny an amendment. The opposing party must show prejudice. Brooks vs.
McMenami)}, 349 Pa, Superior Court 436503 A.2d 446 (1986). Mere prejudice because tb~ 8mendment
requested strengthens the defense of the Defendant is not the type of prejudice requh'ed. The opposing
party must show that there is some substantial prejudice to his legal position. For example, where there is
a request to amend after an opposing party has presented all his evidence or where the opposing party has
incurred substantial costs to present his case might be considered sufficient prejudice. Garv vs.
Mankamvcr, 485 Pa, 525,403 A.2d 87 (1979).
In general, amendments of the pleadings should be allowed with great liberality at any stage of
the proceedings in order to secure a proper detennination of the case, RobCl"Son vs, Davis" 397 Pa.
Superior Court 292,580 A.2d 39 (1990).
tlle project with regard to improper stone depth and grading. until Defendants hired another contractor to
complete the project, The Defendants did not complete the paving project in hopes that a resolution of
this mailer would result in the Plaintiff fulfilling its contractual obligations. When it became clear that
t1ut would not be part of any resolution of this matter, Defendants allempted to have the work completed.
3
....
" I'
It was not until that time in September and October of 2000 at which Defendants became aware
of these deficiencies. It is noted that the Defendant's reply to Plaintiffs Discovery which was SClVed on
or about September 7. 2000, indicated that at that time Defendants had not yet hired anyone to complete
the project. These particular problems would not have been discovered by Defendant but for another
contractor beginning to complete the job,
In order for this maller to be fully and fairly litigated, the Defendants should be granted the
opportunity to present evidence of the deficiency in the workmanship of Plaintiff as it regards to their
request for their additional payment ofmooey. While it is true that the facts with regard to this particular
action occurred several years ago, the litigation is relatively young in that the Complaint was filed on May
7, 1999. The case has proceeded through Preliminary Objections and through the Defendant's Answer to
New Maller and Counterclaim filed on or about May 5, 2000. There has not been any unreasonable delay
of this mailer by the parties and Defendants contend that allowing the Amendment would not prejudice
the Plaintiff with unreasonable delay, After that time sho'Jld discovery be completed, it would be
appropriate to rc-listthis maller for trial.
B, Whether Defendant Fox is entitled to recover the late charges pursuant to a signed
agreement which calls for late charges to be assessed against Plaintiff for failure to complete the
project?
SUGGESTED ANSWER: YES.
C, Whether Defendant Fox is required to pay additional monies to Plaintiff when
Plaintiff has filed to complete the contemplated project as evidenced by the fact that the
township has not fully released the bond held for the paving work?
SUGGESTED ANSWER: NO.
D. Whcther Defendant Fox is required to pay any monies to Plaintiff Walters in
excess of the contr:lct amount?
SUGGESTED ANSWER: NO,
4
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E. Whether there was a vldid settlement agreement reached between the parties
when it was premised on the faet that the project had bcen completed when in fact it was still
uncompleted?
SUGGESTED ANSWER: NO.
III. SUMMARY OF LEGAL ISSUES REGARDING ADMISSIBILITY OF EVIDENCE
Defendants arc not aware of any special issues regarding admissibility of evidence at this time,
IV, WITNESSES
A, Defendant, Harry H. Fox, Jr.
B. Witnesses to support allegations to be made pursuant to amendment of Defendant's
Answer with New Matter and Counterclaim.
C. Defendant reserves the right to supplement this list and to call all witnesses identified by
Plaintiff.
V, EXHIBITS
A. All docunlents attached as Exhibits to Defendant's Answer With New Matter and
Counterclaim as well as Exhibits attached to other Pleadings.
B, All Exhibits as identified by Plaintiff.
C, Defendant reserves the right to supplement this list with regard to items raised in
Defendant's Petition to Amend Answer With New Matter and Counterclaim.
VI, SEITLElIfEr.'T PROPOSAL
Prior to the discovCl)' of deficiencies in workmanship. Defendant had offcrl'>d $14.848.36, The
Plaintiff's sctllement demand is $24,000,00.
5
".
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Respectfully submitted,
KN1rt HUGHES
~./f{}w~
Mark D, Schwartz, Esquire
60 West Pomfret Street
Carllsle,PA 17013
717-249-2353
Supreme Court I,D. No: 70216
By:
Attorney for Defendants,
Harry H. Fox, Jr., and Jobn H, Fox
t1a1FOX & FOX, a partnenblp
(,
".
REAGER & ADLER, P.C.
ATTORNEYS AT LAW
2331 MARKET STREET
CAMP HILL, PA 1701'.4642
(717) 763-1383
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JOHN F. WALTER EXCA VA TING, INC., : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v,
: No. 99-2755 CIVIL TERM
HARRY H. FOX, JR., and JOHN H. FOX, : CIVIL ACTION _ LA W
t/a FOX AND FOX, a partnership,
Defendants
: JURY TRIAL DEMANDED
PLAINTIFF'S PRE-TRIAL MEMORANDUM
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out ofa written agreement between Plaintiff John F, Walter Excavating,
Inc, (hereinafter "Walter") and Harry H. Fox, Jr., and John H. Fox, t/a Fox and Fox, a partnership
(hcreinaller "Fox") dated Scptember 1995. Under thc agreement Walter agrecd to provide
excavating and paving construction work at a project owned by Fox known as Crossroads School
Estates (hereinaller the "Project"). Aller Walter commenced its pcrfonnance under the
agreement, Fox requested that Walter expand the scope ofiis work under the contract to include
excavating work in connection with the laying of electrical lines at the Project on a time and
materials basis, which Walter agreed to do, Walter submilled pcriodic invoices for the work it
was perfonning undcr the contract while its work was ongoing thrcughout the course of the
project. The total amount of the invoices submilled by Waltcr to Fox was $171,458.77. Despite
the fact that Walter completed all of its work undcr the agreemcnt in a workmanlike manner in
accordance with the contractual plans, Fox has paid Waltcr only $138,670.50 leaving a principal
balance due of$32.788.27.
Under thc tcmlS of the agrcclllcJ1t, Fox '....as to pay Walter on or before thirty (30) days
aftcr rcceipt of Waltcr's invoices. Fox did nOI givc Waltcr any notice of any alleged deficiencies
in the pcrfomlancc of its work,
Thc instanl action was COll1ll1enccd by Walter by the filing ofa Complaint on or about
May 7, 1999. Fox filed preliminary objections to thc Complaint which preliminary objections
were dcnied by this Honorable Court on November 23, 1999. On or about January 7,2000, Fox
filed an Answer with New Malter and Counterclaim to whieh Walter's respondcd on May 5,
2000.
Walter's Complaint contained two (2) counts, one for breach of contract and the other for
unjust enrichment. Walter's breach of contract count contained a request for relief under the
Pcnnsylvania's Contractor and Subcontractor Paymcnt Act 73 P.S, 9501 et seq, which authorizes
the award of statutory interest, pcnalties and allorney's fees for Fox's unjustified withholding of
payments earncd by Walter. Walter's Complaint request,s jUdgmcnt in tlie principal amount of
$32,788.27 plus inlcrest, penaltics and attorney's fecs as authorized by the Pennsylvania
Contractor and Subcontractor Payment Act.
In its Counterclaim Fox asscrts that it is entitlr.d to recover from Walter $734,000,00 in
liquidated damages based on an allcgcd delay in the completion of Walter's work. Notably this
Counterclaim was not asserted until more than four (4) years had expired from the time of
Walter's alleged breach.
Moreover, by Fox's own admission, the parties entered into a sClllement agreement
regarding the balance due Walter in which Fox acknowledged in writing the balance due Walter
as well as a paymcnt schedule by which the selllemcnt payments were to bc made by Fox, Fox
made scycral paymcnts toward thc balance remaining in accordance with the selllernent
agrcement. It was not until immediatcly prior to Fox's making thc final payment undcr the
agrccd to sClllcmcllt that Fox first c1aimcd that \Valtcr failed to complete its contract work. Fox
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D. Whethcr Fox has been unjustly enriched when it has accepted all oCWalters' labor
and materials without fully paying for thcm.
Suggested Answer: Yes
E. Whether the liquidated damages clause is unenforceable as a penalty?
Suggested Answer: Yes
III. DISCUSSION OF AUTHORITY
A, FOX'S UNJUSTIFIABLE WITHHOLDING OF CONTRACT PAYMENTS
FROM WALTER CONSTITUTES A BREACH OF CONTRACT AND
VIOLATES THE PENNSYLVANIA CONTRACTOR AND
SUBCONTRACTOR PAYMENT ACT UNDER WHICH WALTER IS
ENTITLED TO RECOVER STATUTORY INTEREST, PENALTIES AND
ATTORNEY'S FEES,
The evidence to be presented by Walter at the trial oCthis matter will show that Walter
completed its work in a workmanlike manner and submitted invoices for payment. The evidence
will show that after completing its work and submiaing invoices in a total amount of
$171,458.77, and that Fox has paid only $138,670.50 leaving a principal balance due of
$32,788,27. Fox acknowledged the balance due and in fact entered into a wriUen Sealement
Agrecmcnt to pay the balance due plus interest with a paymcnt schedule. The evidence will
show that Fox made some, but not all of the scheduled paymcnts under the Settlement
Agrccment.
Under Section 50S(c) of the Pennsylvania Contractor and Subcontractor Payment Act (73
P,S, SSOS(c)) a project owncr is requircd to make payment to the contractor for work and
matcria!s provided within twenty (20) days after dclivcry oClhe contractor's invoices or within
the time limit set forth in the contract. Hcre the evidence will show that the parties agreed that
Fox was to pay Walter within thirty (30) days of submission of Waller's invoice. The only
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TO TIMELY COMPLETE THE WORK IS BARRED BY THE STATUTE
OF LIMITATIONS.
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Under 42 Pa.C.S. ~5525 thc statute of limitations for a breach of contract action is four
(4) years. In its Complaint Fox allcges that Walter was to complcte its work under the contract
by December IS, 1995. It is this date that Fox cites in its Countcrclaim sctting the time of
Walter's alleged breach of the contract. However, Fox did not file a counterclaim in this action
until January 7, 2000, more than four (4) years beyond the alleged breach of contract. As such,
Fox's counterclaim is barred by the statute of limitations.
Co FOX'S CLAIMS FOR LATE CHARGES IS BARRED BY THE
DOCTRINES OF WAIVER AND ESTOPPEL BECAUSE FOX ENTERED
INTO A SETTLEMENT AGREEMENT WHEREBY IT
ACKNOWLEDGED THAT IT OWED WALTER THE BALANCE OF ITS
CONTRACT MONmS AND ACTUALLY MADE SEVERAL PAYMENTS
TOWARD THE SETTLEMENT AGREEMENT.
An estoppel can be asserted where one, by his acts, representations, or admissions, or by
his silence when he has the duty to speak out, has intentionally or by culpable negligence
induced another to believe that certain facts exist and the othcr rightfully relics and acts on such
belief to his prejudice if the fonner is pemlitted to deny the existence of such facts. B1of~en v.
rlltaiar, 460 Pa, 411, 333 A.2d 841 (1975). The evidence to be introduced at the trial will show
that Fox acknowledged that it ow cd Waltcr the balance due on its contract. The evidence will
also show tt,lt Fox also made paymcnts toward a Settlement Agrecment under which Fox
acknowlcdges the amounts due in writing, Thc evidence will show that Fox is estopped from
now arguing that it docs not owc Walter the amounts duc under the contract. In the instant case
Fox not only acknowledgcd in writing that it owed Walter thc balance of the contract but Fox
also made payments toward a Scttlemcnt Agrcement which acknowledged the balance duc. As
sueh, Fox is cstoppcd from claiming that it docs not owc the monies claimed by Wahcr.
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D. FOX HAS BEEN UNJUSTLY ENRICHED IN THAT IT HAS ACCEPTED
THE LABOR AND MATERIALS OF WALTER WITHOUT FULLY
PAYiNG FOR THEM,
Unjust enrichment has been defined by the Appellate Courts of Pennsylvania as a quasi
contractual doctrine based in equity which elements include a benefit confcrred 1m the Defendant
by the Plaintiff, an appreciation of such benefits by the Defendant, and acceptance and retention
of the benefits under such circumstances that it would be inequitable for the Defendant to retain
the benefit without paying for same. Wiemik v PHH IJ S. Mortgage Corporation, 736 A.2d 616
CPa.Super 1999). The evidence to be presented at trial will show that Walter conferred upon Fox
the benefit of its labor and materials and that Fox accepted and rctained the benefits of Walter's
labor and materials without fully paying for same, As such, Fox has becn unjustly enriched by
Walter.
E, THE LIQUIDATED DAMAGES CLAUSE IS UNENFORCEABLE AS A
PENALTY.
The liquidated damages clause contained in the contract and the amount ofliquidated
damages being claimed are unenforceable because they constitute a pcnalty and had no
relationship to the actual damages allcgcdly suffercd by Fox. BrinicllJUbl.a.Brinich Ruildcrs v
Jrncka, _ Pa.Super _' _ A.2d _' 2000 WL 1035975 (July 28, 2000).
IV. WITNESSES
A. J. Brian Waltcr, Vice President
John F. Waltcr Excavating, lnc,
8, Rogcr M. Morgcl1lhal. Esquire
C. Plaintiffrescrves the right to call all witnesses identified by the Defcndant as on
cross,
7
v, EXHIBITS
1. Contract datcd Septcmber 1995,
2. Projcct Plans
3. Invoiccs from John F. Walter Excavating, Inc. to Defendant.
4. Applications for Payment submitted by Jolm F. Waltcr Excavating, Inc. to
Defendant.
5. Proposal of John F. Walter Excavating, Inc. dated July 24, 1995,
6. John F, Walter Excavating, Inc. account statement concerning Fox's West
Pennsboro Township project.
7. Liberty Associates checks payable to John F. Waltcr Excavating, Inc.
8. Drawings depicting the Project property.
9, Scptember 24, 1997 leller from Roger M, Morgenthal, Esquire to James Hughes,
Esquire.
10. November 3, 1997 letter from James Hughes, Esquire to Roger Morgcnthal,
Esquire.
1 I. June 10, 1998 letter from James Hughes, Esquire to Roger Morgenthal, Esquire.
12. August 17, 1998 lellcr from Jamcs Hughes, Esquirc to Roger Morgenthal, Esquire
with enclosed S 13,000.00 check from Libcrty Associates.
13. Scptcmber 1, 19981ctter from Rogcr Morgcnthal, Esquire to James Hughes,
Esquirc with cncloscd account statcmCl11.
14. October 15, 1995 leiteI' from Jamcs lIughcs, Esquire to Roger Morgenlhal,
Esquirc,
15, In\'oices of Rcagcr & Adkr. 1',(',
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VI, SETTLEMENT NEGOTIATIONS
That parties have exchanges settlement proposals as follows:
. The Defendant offered to settle the case for $14,848.36.
. The Plaintiffrejected the offer and has proposed a settlement proposal by which it
would accept $24,000.00 to settle the case.
Date:
Theodo e A. Adler, Esquire
Attorney LD. No. 16267
Thomas O. Williams, Esquire
Attorney LD. No. 67987
2331 Market Street
Camp Hill, PA 17011-4642
Telephone: (717) 763-1383
Attomeys for Plaintiff
9
CER'l'lflCATE OF SERVICE
ANI) NOW, this )" day of December, 2000, I hereby verify that I have caused a true and
correct COllY of PllIintifrs Pre-trial Memorandum to be placed in the U.S. mail, first class,
postage prcpllid and addrcsscd as follows:
Mark D, Schwartz, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, PA 17013
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LAW OFFICES
IRWIN McKNIGHT & HUGHES
ROGeR B, IRWIN
MARCUS A. McKNIGHT. JJ/
JAMHS D. HUGHES
R/;"BECCA R. HUGI/ES
MARK D, SCl/lYARTl
DOUGLAS G. MILLER
WEST POMFRET PROFESSIONAL BUILDING
60 WEST POMFRET STREff
CARLISLE, PENNSYLVANIA 17013'3222
(71 7) 249-2353
FAX (717) 249'6354
!;.AWL: IMHLAWOSUP!;RNEr,COM
JlAROl.D S, IRWIN (/915-1977)
J/AROl.D S. IRWIN, JR. (/9S4-/9H6j
IRWIN. IRWIN &; IRWIN (/I}J6-/9Hfi)
IRWIN. IRWIN d: McKNIGIIT (/9R6./994)
IRWIN, McKNIGHT & I/UGI/ES (/994, )
November 22, 2000
THE HONORABLE J. WESLEY OLER, JR,
CUMBERLAND COUNTY COURTHOUSE
1 COURTHOUSE SQUARE
CARLISLE, PA 17013
RE: John F, Walter Excavatlnl!. Ine, v. Harrv H. Fox. Jr,
and Jobn H, FOll;. tia Fox and Fox. a Partnersbjp
No. 1999 Civil 2755
Dear Judge Oler:
I represent the Defendants in the above-referenced mailer.
Please note that J am writing pursuant to instructions received from your office that any
objections to the listing of this case must be presented in writing. This letter serves as Defendants'
objection to the listing of this case for trial.
Pursuant to the Praecipe for Listing Case for Trial by Plaintiff filed on or about October 3, 2000,
you issued an Order scheduling a Pre-trial Conference for December 6, 2000 at 3:00 P.M. and trial for
January 11,2001, at 9:30 A.M.
In Septemb'cr of 2000, Defendants served Plaintiff with Answers to Interrogatories and Request
for Production of Documents. Defendants were then intending to serve discovery requests of their own
when Defendants were made aware that the Plaintiff had listed this mailer for trial. In that the parties
were in the middle of the discovery phase of this maller, the listing for trial came as a swprise to the
Defendants. In the meantime, Defendants have served IntcrrogatOlles and Request for Production of
Documents on Plaintiff through its counsel.
Additionally, subsequent to the service of Defendants' Answers to Plaintiffs Interrogatories and
Request for Production of Documents, it became known to Defendants that there were certain deficiencies
in the work performed by Plaintiff that had previously been unknown to Defendants. These deficiencies
in workmanship became known to the Defendants because it was at that time period that Defendants
began to attempt to complete the project at issue. Upon Defendants' attempts to complete said project,
the issues with regard to the quality of workmanship became apparent to Defcndants.
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REAcm & ADLER, P.C,
DY, THEODORE A. ADLER, ESQUIRE
Atlorney 1.0. No. 16267
2331 Markel Slreel
C.1mp Hill. PA 17011
Telephone: (717) 763.1383
AlIarneys (or Plaintiffs
JOHN F, WALTER EXCAVATING, INC.,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUM8ERlAND COUNTY, PENNSYLVANIA
vs,
NO, ff- .)/~ t~J
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HARRY H, FOX, jR, and JOHN H, FOX, CIVIL ACTION -lAW
tJaJ FOX AND FOX, a Partnership,
Defendants : JURY TRIAL DEMANDED
NOTICE TO DEFEND
You have been sued in court. If you wish to defend against the claims set forth in the fol/owing
pages, you must take aClion within twenty (20) days after this Complaint and Notice are served, by
entering a written appearance personally or by attorney and filing in writing with the court your
defenses or objections 10 the claims set forth against you, You are warned that if I'OU fJilto do so, the
case may proceed without you and a judgment may be entered against you by the court without further
notice for .my 1l10lWY cI.linll'd in the Complaint, or for any other claim or relief requested by the
plaintiff. You I'lay 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,
Lawyer Referral Service
Court Administrator
4th Floor
Cumberland County Courthouse
One Courthouse Square
Car/i,ll', PA 17013
(717) 2~O,6200
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REAGER & ADLER, P.C.
nY: THEODORE A. ADLER, ESQUIRE
AlIorney I.D, No. 16267
2331 M"rket Slreet
C"mp Hill, PA 17011
Telephone: (717) 763,1303
Attorneys (or Plilinliffs
JOHN F, WALTER EXCAVATING, INC.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
vs.
NO,
HARRY H. FOX, JR. and JOHN H, FOX,
I/al FOX AND FOX, a Partnership,
CIVIL ACTION - LAW
Defendants
JURY TRIAL DEMANDED
COMPLAINT
COUNT I
1. Plainliff is John F. Walter Excavating, inc. (hereinafter "Walter"), a Pennsylvania
corporation with offices in Newville, Cumberland County, Pennsylvania. Walter is a paving and
excavating contractor.
2, Defendants are Harry H, Fox, Jr. and John H. Fox who trade as Fox and Fox, a
partnership with offices at 60 S. Pin Oak Drive, Boiling Springs, Cumberland County, Pennsylvania.
3. In September, 1995,Ihe parlies hereto entered into a contract agreement (hereinafter
the "Contract") whereby Walter agreed to provide excavating and paving construction work at a project
owned by Defendants known as Crossroads School Estates (the "Project"). A copy of the Contract
Agreement is all.lChed hCrI,IO ,lS Exhibit A,
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4. Afler performance commenced under the Contract, Harry fox requested that Walter
expand the scope of work under the Contract to include excavating work in connection with the laying
of electrical lines allhe Project on a time and materials basis. Waller agreed to do so,
~ 5, Waller submitted periodic invoices for the work it was performing under the Contract. d. ,~
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6. The total amount of the invoices submitted to Defendants by Waller is $171,458.77,
7. To date, Defendanls have paid Waller $138,670.50, leaving a principal balance due
of $32,788.27.
8. Despite repealed demands by Walter, Defendants have failed and refused to pay the
principal balance due.
9. Defendants' failure and refusal to pay the balance due Walter is a breach of contract,
/
10.
Walter is a contractor as Ihat term is defined in the Contractor and Subcontractor
Payment Act, 73 P.s. 9501 el seq. (the "ACI")
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1 1. Under the terms of the Contract, Defendants were to pay Waller on or before Ihirty (30)
days after receipt by Defendanls of Walter's invoices.
12, Defendants did not give Walter any notice of any alleged deficiencies in the
~vj performance by Walter or the Project within seven (7) calendar days of the date that the invoices were
P::. . d
rf> ~ rece,ve.
~ 13.
As of Ihis date, Defendants owe Waller a principal balance of $32,788.27 for work
Waller performed on the Project as a contractor.
14. More than Ihirty (30) days have passed since Waller last submitted its final invoices for
payment.
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15, Under 9505 of the Act, if any progress or final payment due Walter was not paid within
seven (7) days of the date for which payment was due under the Contract, Walter is entitled to statutory
interest at the rate of 1 % per month on the balance due and owing.
16. Under 9512 of the Act, if litigation is commenced to recover payment due under the
Act, Defendants are further liable for a penalty equal 10 1 % per month of the amount wrongfully
withheld and an award of reasonable attorneys' fees, together with expenses,
WHERE FORE, Plaintiff, John F. Walter Excavating, Inc., respectfully requests this Honorable
Court to enter judgment in its favor and against the Defendants in the amount of $32,78B.27, plus
statutory interest, statutory penalties, attorneys' fees and costs.
COUNT II - UNJUST ENRICHMENT
17. Walter incorporates herein by reference paragraphs one (1) through five (5) of this
Complaint as if fully set forth herein.
1 B. Defendants promised Walter that they would pay Walter lor the excavation and paving
performed atlhe PlOjecl.
19, The labor and materials provided by Walter to Defendants for which Defendants have
not paid is $32,7B8.27, as is more fully set for\h in Exhibits A and B attached hereto.
20. Waiter, in reliance upon Delendants' promises to pay, was induced to act and did act
by supplying Defendants with the labor and materials as more fully described in Exhibits A and B
allached hereto,
21. Waller'S reliance on Defend~\nts' prornises to pay was reasonable and justified.
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22. It would be unjust to permit Defendants to retain the benefit of Walter's labor and
materials without paying for same,
23. Injustice can only be avoided by enforcement of Defendants' promise to pay Walter.
WHERE FORE, Plaintiff, John F. Walter Excavating, Inc. respectfully requests this Honorable
Court to enter judgment against Defendants in the amount of $32,788,27, plus lawful interest and
costs.
Respectfully submitted,
Date: May 7, 1999
REAGER & ~"ER' P.~
THEa ORE A. ADLER, ESQUIRE
Attorney 1.0, No, 16267
2331 Market Street
C;Jmp Hill, PA 17011.4642
(717) 763.1383
Attorneys for Plaintiff
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EXHIBIT A
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1'lAY 133 '99 Ie: 19
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2.
TilE OWNER agrees to pay the CONTRACTOR for the sum of $140,238.00 for said
work, said pa)-ments to be mnde upon acceptance by West Pennsboro Township and upon release
of the money held by West pennsboro Township under a completion Bond,
3.
CONTRACfOR wiU be responsible to notify the West pennsboro Township to make the
necessary inspections of the work, so that payment may be released from the Township and the
Bond reduced,
4.
CONTRACTOR iigree:; to besin the work on September ,;if' , 1995 and to have the
work fuUy completed by /)2c /5/ ,1995 and agrees to pay a f j'c.o per diem
chnrgc to OWNER if the work has not been completed by , 1995 and until the
work is nctually completed.
5.
This CONTRACT will be binding Ilpollthe parties, their successorS and assigns.
2
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JOHN F, WALTER EXCAV,1\TING,
P.O, Box 175
NEVNILLE, PENNSYLVANIA 17241
(717) 776.3148
PROPOSAL SUDMtTTtO 10
Hany Fox Jr,
SlR[[T
2U Old York Road
"HONE.
or.n
Jul.y 24, 1995
JOB 1~"Ml
Crossroacs School Estates
JOO LOCATION
CITY, &T^1C AND ZIP coot
DilJ.sbl~g, PA 17019
MCtill[CT D"H or rlMiS
JOD rll0r~[
We hereby ~ubmit ~pecillca\lon50 and cs.limalcs, lor: 1-".;:,:r.:C:V':::1:ing Ct pav:i.!lC
C1.(:f.:.rirl9
Corlst. Bnt!"E:.J"IC':::
Silt FGn(';':~
Strip ':~CI.:;;(.i..l
Ebpli1cc ~\:-~~\=cjil (:: I ~':":i'.J (s ',' Hctc!:t i.Cl) L::.~ :":",F. eil] Y)
Si.te c\,;t [. FiJ.~
E.....:ce:r::s Fij 1
Firl'~~ C;~T,di.'l0
S'\',"'::ilc G..tao:iir:g
StC'rr.i SC:\)<lr (5.::c}:..(iJJ. ;..., :0 1Y,;; o:l-sir.e iill.j
Off-site PC':-Jd i'~crl:
Stene StD 13 + '3 to 16 + 33 (6")
7emporDX)' Cul-De-Sac
PFJV~~S - ~~~ 0 + 09 to 13 + 43
TOT?l, $140,238.00
fQ:K EXTFA:
BuD; - S24,OO C. y,
Trench Hand Drill - S80.00 C. Y.
Trench - Wagon Drill - $25.00 C. Y.
Boulders - over ~ C.Y. - $15.00 C. 'l.
I'lcchunical - S15, 00 C. '1 .
mr lJropOnl' hereby to furni!.h material :md labor _ complete in 3tcordance with abo\'e specifications. for the sum
One P.und.rcd Forty TJlOuSund 1'vJO Hundred TlU.r1:y-cight ---------------a6lra,. ($ 140,238,00
P'ymenl to be made u lollo~'~:
Net - 30 DDys
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"(Inl '''wo!'',''1 t'~tr. (.0'" ....n lit' uttvtrCl (lnl,. V('(II'\ ...."11..1\ 0.0..... ,..d ..,II bl'ram, ,n
u". '....r'.. ~f ..nd .t>o~ tht uto.....:... "II _f'lI'l'm.."l. (o"I."tl""\ ",0(>" ,'''lo.fI" Ut'''"nll
Of drl.,... ,*,on(l our (UI'lI.oL 0...."'1 Iv ("f)' lu" to,r.Ulo ."l! Olhrr '."(.rJ....y .,.~u'."l'.
0....- ~Thr'5 .,, ,,,,lIy (ow..O Ly .....o'''"''n.. CO"'P'"nul.,)" IM",ran{l'.
Note: 1 hi~ ploro~:;l mil)' br
w;\hd,"'wn 1'y u~ If nul Jl(.tt'plt'd .....'\l1m
Avlhoflad
S'Cn..lulr
i\rrrptnnrr of 'Prop OJlol-lh. .b.', PI",", '1'<''''''\'0"'
&nd cond,tiOnl are U1t~lattory Ot"d .ft httfby "Ufplt'd. You ..(' IH,tlhofind
10 do 'ht work n lpc-t,f,td. Paymfnt .....11 t.t mpOf U nun,nr-d "bi)vt.
$icnp1r..lIt
S;,n.turt
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26.
The scope of the work required under the agreement was for excavating and paving work
for the Crossroads School Road Estates, Phase II.
27,
The agreement required that Plaintiff complete the project by December 15, 1995,
28,
The Plaintiff did not complete the excavating and paving work required under the
agreement for lhe Crossroads School Road Estates, Phase II by December 15,1995, and has yet
to complete said work,
29,
The agreement requires Plaintiff to pay a $500.00 per diem charge to Defendant if the
work was not completed by the end of 1995.
30.
Under the contract, the Defendants have a duty to pay for work perfonned by Plaintiff on
the condition thal the work is accepted by West Pennsboro Township and the Township has
released monies being held under a completion bond.
31.
TIle Defendants have paid Plaintiffs $138,670.50 which includes payments made
pursuant to release of bond monies by the West Pennsboro Township as required under the
contract and monies paid for additional rock excavation for layi"g of electrical lines whkh was
agreed to by the parties.
7
32,
It is the Plaintiffs duty under the contact at paragraph four (4) to notify the township to
make the necessary inspections so that payment may be released.
33,
West Pennsboro Township still has control of monies held under the completion bond
and has not releasee' <lilY additional monies from the bond which would require additional
payments to the Plaintiff.
34,
In the alternative, the parties reached an agreement (hereinafter "settlement") regarding
payment of the Plaintiff's outstanding invoices for work performed by Plaintiff. Attached as
Exhibit "B" and incorporated herein by reference thereto are two letters exchanged between the
parties' counsel outlining the settlement agreement and it~ terms,
35.
Pursuant to the settlement, Defendants agreed to pay to the Plaintiff a sum of $35,348,36
plus $5,000,00 in interest to pay the outstanding debt owed by Defendants to Plaintiff (See
Exhibit "B"),
36.
By check dated May 27, 1998, Defendants made a payment of $12,500,00 toward the
outstanding agreed upon balance owed of $40,348.36 which rcduced the outstanding debt to
$27,848.36. Attached as Exhibit "C" and incorporated herein by reference thereto,
8
37,
By check dated August 6, 1998, Defendants made a payment of $13,000,00 toward the
then outstanding balance of 27,848.36 which reduced the outstanding debt to $14,848.36. The
Plaintiff acknowledged receipt of said payment by letter from its counsel dated September 1,
1998, Attached as Exhibit "D" and incorporated herein by reference thereto are said letters.
38,
Prior to making the final payment under the settlement, it was discovered by Defendants
that the Plaintiff had not completed the work as contemplated under the contract. The
Defendants notified the Plaintiff of this situation by letter dated October 15, 1998. Attached as
Exhibit "E" and incorporated hereby by reference thereto.
39.
Tite Defendants had originally agreed to the settlement upon representation by Plaintiff
that all work contemplated under the original contract had been completed.
40.
After discovery that all work had not been performed, the Defendants required that
Plaintiff perform its obligations under the contract before final payment would be made.
41.
The Plaintiff did not complete the remainder of the required work under the contract and
the Defendants have therefore not made final payment under the settlement agreement.
WHEREFORE, the Defendants, Harry H, Fox, Jr, and Jolm H, Fox, tla Fox and Fox,
respectfully request that this Honorable Court enter judgment in favor of the Defendants and
9
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~~y 03 '99 10:19
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2.
TElE OWNER ngrees to pay the CONTRACTOR for the sum of $140,238.00 for said
work, said pl1yment~ to be made upon acceptance by West pennsboro Township and upon release
of the money held by West Pennsboro Township under Ol. completion Bond.
3,
CONTRACTOR will be responsible to notify the West pennsboro Township to mllke the
necessary inspections of the work, so that payment may be released from the Township and the
Bond reduced,
4,
CONTRACTOR 3grecs to beBin the work on September ,;1"- , 1995 and to have the
'/ "lC fuUy completcd by {fic /5/ ,1995 and agrees to pay:: I' ")C-o per diem
charge to, OWNER if the work has not bcen completed by , 1995 and until the
work is nctually completed.
5.
This CONTRACT will be binding upon the parties, their successors and assigns.
2
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.
LAW OFFICES'
IRWIN McKNIGHT & HUGHES
ROGER D. IRWIN
MARCUS A. McKNlGUT, /IJ
JAMES D. HUGHES
REBECCA R. HUGHES
DANIEL W. DeARMENT
WEST POMFRET PROFESSIONAL BUILDING
60 WEST POMFRET STREET
CARUSLE, PENNSYLVANIA 17013,3222
(717) 249.m3
FAX (717) 249.6354
E.MAIL: IMHLAWGAOL.COM
HAROLD S./RWlN (fO:.s.rOm
HAROl.D $, IRWIN, JR. (r~flletl'
lRW1N,/RYflN" IRWIN (UI56-fG66)
IRWIN, IRWIN.. IkKNl:itfT (fIlM.fllP4)
November 3, 1997
fiLE COpy
VlA HAND DELIVERY
ROGER M. MORGENTHAL. ESQUIRE
FLOWER, MORGENTHAL. FLOWER & LINDSAY
11 EAST mGH STREET
CARLISLE, P A 17013-3016
RE: JOHNF. WALTER EXCAVATING/CROSSROAD SCHOOL
ROAD ESTATES, PHASE II
Dear Roger:
In accordance with our previous conversations, enclosed here\\ith please find the proposed Mortgage and
accompanying Nole with respccllO the agreement reached between the parties concerning the above.referenced
mauer as outlined in my leuer to you of July 1, 1997, Both of the enclosed documents provide that Liberty
Associates, or its assigns, would tender the outstanding principal amounl due ofS35,348.36, together ,vith an
interest charge of S5,CQO,OO, to your client by April 15, 1998. TIle mengage would be recorded against the
fl'm.;n;ng lots of Crossroad School Road Estates, Phase II, West Pennsboro Township.
However, please nOle that the payment is subject to your client obtaining wriuen appro\'a1 from West
Pennsboro Township that its services were appro\'ed and that the completion bond of the developer has been
reduced accordingly. These provisions were clearly provided for in paragraph 2 of the original Agreement. In
addition, in the C\'ent that any of the lots are sold prior to the anticipated payoff date of April 15, 1998, your client
would agree to release the same in consideration of recehing :ill of!!!e net proceeds due 10 the dC\'eloper upon the
conveyance,
1 trust that the enclosed documents set forth the agreement reached between the panics. Upon your rcviC\\'
of the same, please advise as to any changes or revisions which )'OU feel are necessary. lfthese documents are
satisf.actory, please advise and I \lill ha\'e my client e.xecute the same and thereafter record the mongage.
Thalli< you for your cooperation in this matter.
JDH:c1c
cc: HaIry H. Fox, Jr.
lIT & h'UGHES
EXHIBIT "C"
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60 S. PIN OAK DR,
BOiliNG SPRINGS, Pf, 17007
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EXHIBIT "D"
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lA W OfFICES
FLOWER, MORGENTHAL, FLOWER & LINDSAY
A PROrrSSIONAt CORPORA liON
11 EAST HIGH STREET
CARLISLE. PENNSYLVANIA 17013-3016
JAMES D, FLOWER
ROGER M. MORGENTHAL
JAMES D. FLOWER. JR.
CAROL J. llNDSA \.
(717)243.5513
FAX: (717) 243.6510
E.m:til: FMFL uW@3ol.com
DIETSCH & MORGENTHAL
(1975.1985)
FLOWER, KR.AMER
MORGENTHAl &, FLOWER
(1985.1992)
September 1,1998
James D. Hughes, Esquire
IRWIN, McKNIGHT & HUGHES
60 West Pomfret Street
Carlisle, PA 17013-3222
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RE: JOHN F. WALTER EXCAVATING/LIBERTY ASSOCIATES
Dear Jim:
Enclosed is a copy of a statement which I received from my client showing the
balance which they calculated after the last payment of $13,000.00.
Where do we stand on getting the balance paid? If there is going to be any
significant delay, it is important that the mortgage gets recorded to secure my client's
interests.
Thanks for your cooperation.
Ve'f (:!:;:~'
Roger M. Morgenthal
f(';
Ollie. ~hr(;'" (7'7) 776.31.9 & 776,3"~
,ome Phon.. (7' 7~ 776."b9
FAX: (717) 776,'S66
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JOHN F. WALTER Excavating, Inc.
PO. BOX 175 . NEWVILLE, PA, 17241
Harry H. ~ Jr.
241 Old 'iork Read
Dillsburg. FA 17019-9318
RE. Crossroads School road Phase II project in West peJ'.nsboro Township
DATE:.
BALAlJ.:E
SEIUICE: c.~
rurAL I:UZ
04-30-98
05-31-98
35. :>46.36
530.23
35,878.59
36,408.82
35,:>48.36
530.23
Service ~ Agreed To Be Paid By Fox
06-19-98
paid $12,500.00
Check 1866
Liberty Associates 35,;348.36
5,OOO.CO
41,406.62
06-30-98
07-31-98
28,908.62
28,908.62
433.63
28,906.82
29,:>42.45
29.776.08
433.63
0e-<l6-96
p.:;.i.1 $13,000.00
Check 1677
Liberty Associates 28,908.82
16,776.08
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LAW OFFICE;S .
IR"VlN McKNIGHT & HUGHES
ROGER B. IRWIN
MARCUS A.. MCKNIGHT. 111
JAMES D. HUGHES
REBECCA R. HUGHES
CAmEl. W. OeARMENT
WEST POMFRET PROFESSIONAL BUILDING
60 WEST POMFRET STREET
CARLISLE, PENNSYLVANIA 77013.n22
(717) 249.2353
FAX (717) 249.6354
".MAIL' IMH LAW@AOLCOM
HAROLO S./RWIN (H'2S"P77)
HAROLD 5. IRWIN, JR. (,g~4.rgeel
IRWIN, IRwm & IRWIN (HI35.r!1e~J
IRWIN. IRWIN & McKNIGHT (1985. ,gpIJ
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October 15, 1998
FJLE GD~'~.!
ROGER M. MORGENTHAL, ESQUIRE
FLOWER, MORGENTHAL, FLOWER & LINDSAY
11 EAST HIGH STREET
CARLISLE, PA 17013-3016
RE: JOHNF. WALTER EXCAVATING I LffiERTY ASSOCIATES
Dear Roger:
With respect to this outstanding matter, it is my understanding that with one more lot
sold, the remaining balance due to your client would be paid. However, as I indicated to you in
my correspondence of August 17, 1998, it is my understanding that approximately one hundred
feet of the first phase had not been paved. Therefore, please advise as to whether Mr. Walter will
be finishing that section prior to receiving the last payment.
I shall look forward to hearing from you.
Very truly yours,
JDH:c1c
cc: Mr. Harry H. Fox
IGHT & HUGHES
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REAGER & ADLER, P.c.
BY: THEODORE A, ADlER, ESQUIRE
Attorney I.D. No. 16267
2331 M.1rkel Slreet
Camp Hill, PA 17011
Telephone: (717) 763-1363
Attorneys (or Plaintiffs
JOHN F. WALTER EXCAVATING, INC.,
IN THE CCURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PlainliH
vs.
q9- .27.S5 ~ -r:.--
NO'.
HARRY H. FOX, JR. and JCHN H. FOX,
tla! FCX AND FCX, a Partnership,
CIVIL ACTICN - LAW
Defendants
JURY TRIAL DEMANDED
CCMPLAINT
CCUNT I
1. Plaintiff is John F. Walter Excavating, Inc. (hereinafter "Walter"), a Pennsylvania
corporation with offices in Newville, Cumberland COllnty, Pennsylvania. Walter is a paving and
excavating contractor.
2. Defendants are Harry H. Fox, Jr. and John H. Fox who trade as Fox and Fox, a
partnership with offices at 60 S. Pin Oak Drive, Boiling Springs, Cumberland County, Pennsylvania.
3. In September, 1995. the parties hereto entered inlo a contract agreement (hereinafter
the "Contra(1") whereby Walter agreed to provide excavating and paving construction work at a proj(~d
owned by Defendants knowll as Crossroads School Estales (the "Project"), A copy of the Contract
Agrepl11ent is .1l1ac!1t'd Iwrplo as Exhibit A.
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4. AftN performance commenced under the Cunlrall, H,ury Fux requesled thaI Waiter
expand the scope of work under lhe Contract to include excavating work in connection with the laying
of electrical lines at the Project on a time and materials basis. Walter agreed to do so.
5. Walter submitted periodic invoices for the work it was performing under the Contract.
Copies of the invoices submilled by Walter are attached hereto as Exhibit B.
6. The total amount of the invoices submitted to Defendants by Walter is $171,458.77.
7. To date, Defendants have paid Walter $138,670.50, leaving a principal balance due
of $32,788.27.
8. Despite repeated demands by Walter, Defendants have failed and refused to pay the
principal balance due.
9. Defendants' failure and refusal to pay the balance due Walter is a breach of contract.
10. Walter is a contractor as lhat term is defined in the Contractor and Subcontractor
Payment Act, 73 P.s. 9501 eC seq. (the "Act")
11. Under the terms of the Contrad, Defendants were to pay Walter on or before thirty (30)
days after receipt by Defendants of Walter's invoices.
12. Defendants did not give Walter any nollce of any al!eged deficiencies in the
performance by Waltl'r or tll<' Project within seven (7) calendar days of the date that the invoices were
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receiv('d.
13. As of this datI" Dpfpndants owe Walter a principal balancp of $32,788.27 for work
\V,llh>r pl>rfonlwd ontl1<' ProjPct as ,J contractor.
14. Mon.th,lnlhir1\, (30) days haw pasSl>d since \Valt,'r laq submil1pd its final invoices for
paYIlH'n1.
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15, Under ~505 of the Act, if any progrl'ss or final payment due Walter was not paid within
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seven (7) days of the date (or which payment was due under the Contract, Walter is entitled to statutory
interest at the rate of 1 % per month on the balance due and owing,
16, Under ~512 of the Act, if litigation is commenced to recover payment due under the
Act, Defendants are further liable for a penalty equal to 1 % per month of the amount wrongfully
withheld and an award of reasonable attorneys' fees, loge!her with expenses,
WHERE FORE, Plaintiff, John F, Walter Excavating, Inc., respectfully requests this Honorable
Court to enter judgment in its favor and against the Defendants in the amount of $32,788.27, plus
statutory interest, statutory penalties, attorneys' fees and costs,
COUNT" - UNJUST ENRICHMENT
17. Walter incorporates herein by reference paragraphs one (1) through five (5) of this
Complaint as if fully set forth herein.
18, Defendants promised Walter that they would pay Walter for the excavation and paving
performed at the Project.
19. The labor and materials provided by Walter to Defendants for which Defendants have
not paid is $32,788.27, as is more fully spt forth in Exhibits A and B attached hereto.
20. Walter, in reliance upon Dpfpndants' promisps to pay, was induced to ad and did ad
by suppll'ing Defpndants with the labor a/ld matl'rials as more fully described in Exhibits A and B
an,lChed hereto.
21. Vvalter's r"'iann' on Dl'f,'nd,lI1h' pfomi,,>s to p.lY was fl'asomble and justified.
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. 7177764566 JOHN F WALTER EXC
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974 POI;
l'lAY 133 '99 113: 19
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2.
TIlE OWNER agrees to pay the CONTRACTOR for the sum of $140,238.00 for said
work, said payments to be made upon acceptance by West Pennsboro Township and upon release
of the money held by West Pennsboro Township under a completion Bond.
3.
CONTRACTOR wiU be re6pDnsible to notify the West Pennsboro Township to make the
necessary inspections of the work, so that payment may be released from the Township and th~
Bond reduced,
4.
CONTRACTOR agrees to begin the work on September .;1"- . 1995 and to have the
work fuUy completed by Dc 15/ ,1995 and agrees to pay a .f'Ji::t:' per diem
charge to OWNER if the work has not been completed by , 1995 :ll1d until the
work is actually compk'ted.
5.
This CONTRACT will be binding upon the parties, their successors and assigns,
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Sent by: REMER & ADLER, ATTNYS
717 730 7366;
05/05/99 7:53', J_~_ #268'Pa 3
""'1"". ,_ ge
VERIFICATION
I, J. BRIAN WALTER, hereby verify that I am the Vice President of John F. Walrer
Excavating, inc., and as such, I am authorized to verify the averments of the foregoing document
lire true and correct to my personal knowledge, information and belief. I understand that false
statements herein are made subject to the penalties of 18 Pa. (,5. 94904, relating to unsworn
falsification 10 authorities.
JOHt-.. F. WALTER EXCAVATING, INC.
By:
~~A/~
, RIAN WALTER, VICE PRESIDENT
Date: .s /5/ CJCj
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has paid Walter $138.670.50. leaving a principal balance due of $32.788.27. Despite repeatcd
demands by Waltcr. Fox has fail cd and rcfused to pay thc principal balance due, Under thc terms of
the contract. Fox was to pay Waltcr on or bcfore 30 days after reccipt of Walter's invoices. Fox has
not givcn Waltcr any noticc of any allcgcd dcficicncies in the performance by Waltcr on the Project.
More tiJan thiny days havc passcd sincc Walter last submitted its final invoices for paymcnt for work
performcd on thc Projcct
This action was commenccd by tilC filing ofa complaint by Walter on or about May 7.1999.
The Plaimiff's complaint contains two counts: one for Breach of Contract and onc for Unjust
Enrichmcnt. Count I of Walter's complaint entitled "Breach of Contract" contains avermcnts undcr
tile Pennsylvania C011lractor and Subcontractor Payment Act. 73 P.S. s501 C1 Sl:Q.. under which Waltcr
is entitled to statutory interest. pcnaltics and reasonable attorneys' fees for failurc to pay Waltcr in
accordance witil tile contract. Thc averments rclating to the Pennsylvania Contractor and Subc011lractor
Payment Act contained in Count I of tile complaint do not consti<utc an additional cause of action but
arc mercly allcgations through which Walter is entitled to recover additional damages duc to Fox's
brcach of tilC contract Fox has assened Preliminary Objectioi1s in thc naturc of a demurrcr to Waltcr's
brcach of contract claim. Fox has also asscncd a dcmurrcr to Waltcr's allcgations undcr thc Comractor
and Subcontractor Paymcnl Act as well as a prcliminary objection claiming a violation of Pa. R.C.p.
1020(d)(I).
This bricf is rcspectfully submittcd in oppositioJJ to Fox's preliminary objcctioJJs.
~2-
1991). On prcliminary objcctions in thc nature of a dcmurrcr. all doubts must be rcsolved in favor of
the non-moving pany and the dcmurrcr should be sustaincd only in cases that arc clear and frec from
doubt. lmleoellr/ellceJlhw Cro.n' v Pelln~I'/"allia IIlS/lmnCi?-.D.eollrtlllel1t, Pa. Comwlth. ,
. . . - -
670 A.2d 221. reargumcm denied. affirmcd. 546 I'a. 627. 677 A.2d 1117 (I'a. COlllwlth, 1996).
Finally, whcn faced with preliminary objections in the nature of a demurrer. thc trial court must accept
as true all well pleaded facts comained in tile plaimiff's complaim along witil any reasonable inferences
which may bc drawn thcrefrom. WI'l>b MIII1I([{I/'lUrillg CO. I' Sinoff, 449 Pa, Super. 534.674 A.2d
723 (I'a. Super, 1996),
A. BECAllSE THE PLAINTIFF EXPLICITLY AND BY INFERENCE HAS
fl-EADED SUFFICIENT FACTS SHOWING AN AGREEMElSI
BETWEEN THE PARTIES, PERFORl\L\NC:E BY THE PLAINTIFF
AND A FAIUJRE TO PAY ON THE PART OF THE DEFENDANT, THE
PLAINTIFF HAS SIJFFICIE~LY PLEADED A CAliSE OF ACTION
EO.R.B.REACH OF COJl.'TRACT AND, AS SllCH, THE DEFENDANTS'
DEI\1lJRREI~ SHOlJl.D BE DISMISSED.
Under Pcnnsylvania law. a causc of action fur brcach of contract is cstablished by plcading tile
cxistcnce of a contract. including its essential terms. breach of a duty imposcd by the COlllract and
resultant damages. GeJJe111.L)fa!.e..A111iwIiJ:>-.:LJ",Q/I'nlllll Cable & Wire Co.. 27 Pa. Comwlth. 385. 265
A.ld 1347 (I'a. Comwllh. 1976). In the instant <'ase. the Plaintiff has pleaded. and is prcparcd to
prove, all the neces:;ary clements of its cause of action in breach of contract. First. at paragraph 3 of
the complaim. the Plaintiff alleges that there was a contract between the parties, The Plaimiff has
plead cd the essential terms of the contract between the parties. i.e. the scope of work agreed to be
perfl1nned by the Plaintiff and lhe payment \I) he lIlade by the Dcfcndallls in exchange for thc PlaintiWs
perfl1rm:mce. The Plaintilf has further pleaded that it performed its ohligations under the l'ontracl.
--1.
B. BECAllSE THR PLAINTIFF HAS PLEADED THE REQlJISITE FACTS
11NDER ITS BREACH OF CONTRACT CAllSE OF ACTION IIY
WIIICH IT IS ENTITLED TO RECOVER INTEREST, PENALTIES
AND REiASONAllLE ATTORNRYS' FEES I'IJRSUANT TO TilE
PElSNSY_,YA!S'IA CONTRACTOR AND SUBCONTRACTOR
PAYMENT ACT, TIm DEFENDANTS' DRMlJRRER UNDER WHICH
IT SEEKS THE DISMISSAl, OF STATUTORY DAMAGES MUST liE
DISMISSED.
Under Count I of its complaint, the Plaintiff has made factual averments which if proven at trial
would entitle it to recover interest. penalties. and reasonable attorneys' fees under the Pennsylvania
Contractor and Subcontractor Payment Act. 73 P.S. ~501 e.t sell. (hereinafter the "Act"). Under the
Act. at Section 505. the owner of a construction project is required to pay the contractor strictly in
accordance with ule terms of ule construction contract. Under the contract at issue in u1is complaint,
the Defendants were required to pay the Plaintiff within 30 days of receiving the Plaintiff's invoices.
Under the Act. if the owner is to withhold any monies from the contractor, it must provide ule
contractor with a notice of any and all deficiencies within 7 days of receipt of the invoice from ule
contractor. If no such notice is provided. the owner is required to pay the contractor in full for its
invoices within 30 days of receipt of the invoices, Under Section 512. if litigation is commenced to
recover payment due under the Act. defendants are further liable for a penalty equal to one percent
(1 %) llf the amount wrongfully withheld and award reasonable attorneys' fees together with expenses.
Here. the Plaintiff has alleged sufficient facts to cntitle it to recover the statutory interest.
penalties and reasonable anorneys' fees as authorized by the Act. Specitically, ule Plaintiff has alleged
that it has performed its work and submined its invoices for thc work to the Defendants. It is further
:illcged that the invoices arc more than 30 days old and that no notice of any deficiencies has been
received from the Defendams. Thus. the requisile facts to show entitlement under the Act have bl'en
pkaded and. as such. the Defendants' demurrer should be dismissed.
.Cl-
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=ply with the pa)lmem tenlJ.U)f this akl. the arbitrator or court shall
award. in addition to all other damages due, a penalty equal to 1 % pcr
momh of the amount that was wrongfully withheld. An amount shall
not bc dcemed to have been wrongfully withhcld to thc cxtent it bcars
a rcasonable relation to thc value of any claim hcld in good faith by thc
owner. contractor or subcontractor against whom thc contractor or
subcontractor is sccking to rccovcr paymcnt.
(b) Award of attorneys' fcc and expcnscs. - Notwithstanding
any agreemcntto thc contrary. thc substantially prcvailing pany in any
proceeding to recover any payment undcr this act shall bc awarded a
rcasonable anorney fce in an amount to be determined by thc court or
arbitrator. together with expenses." (cmphasis added)
Because thc Plaimiff's pleading of facts emitling the Plaintiff to additional damages undcr the
Act. damagcs which arisc out of the Defendants' breach of the payment tenns under the contract. does
not constitute a scparate cause of action, the Defcndants' preliminary objection should be dismissed.
IV. CONCLUSION
Based on the authority sct forth above. the Defcndams' preliminary objections should be
dismissed.
Respectfully submined.
Date: October 8. 1999
Th~odore A. Adler
Pa. LD. No. 16267
Thomas O. Williams
I'a. LD. No. 67987
2331 Market Street
Camp Hill. I'A 170l1-4M2
(717) 763-1383
Attorneys 1()r Plaimiff
-9-
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CERTIFICATE OF SEImcE
AND NOW. this S" day of October. 1999. I hereby verify that I have caused a true and correct
copy of the PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' PRELIMINARY
OBJECTIONS to be placed in the U ,So mail. first class. postage prepaid and addressed as follows:
Mark D, Schwartz. Esquire
Irwin McKnight & Hughes
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013
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Previous Image
Refilmed to Correct
Possible Error
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ARGl.':\IENT
A preliminary objection in the nature ofa demurrer is subject to Pa,R.C.P. No. I02~(aH4)
which provides tor the "legal insufticieney of a pleading" and allows the Coun to dismiss the
claim bccause of a 1:lilurc to state a claim upon which relic!' can be grallled,
The Supreme Court of Pennsylvania has explaincd that the standard of review ftlr a
preliminary objection ill the nature of a demurrer is to assume as true the avemlents of the
complaint, except as to the extent that they constitute conclusions of law. Cafaz7.0 S'. Central
l\ledical Health Sen'iccs. 542 Pa. 526, 668 A.2d 521 (1':1. 1995). The Coun noted that it was
not compelled to accept the complaint's legal conclusions, only the recitation of the facts, It!. at
523. The Court is to sustain the preliminary objection if the complainant is not entitled to relief
as a matter of law even if the complaint's assenions of fact arc true.
In the case at bar. Plaintiff is not entitled to relicfupon his claim, even ifall of his
assertions offact arc true. Plaintiff's claim is based on a breach ofcllntracl. but Plaintiff's elaim
fails to aver ali of the essential facts in the contract. Consequently, Plaintiffs claim does not
state a cause of action upon which relief can be granted because Plaintiff ignores that part of the
contract which provides for the payment process. of which pan of the contract Defendant has not
breached.
A. Plaintifrs Complaint Docs Not State A C:mse Of Action For Brcach Of Contract
Upon Whjch Relicf :\las' Be Grantcd BCc:lllsc The Claim 1l!f1orcs Essential Terms Of
The Contract.
Plaintiff claims that Defendant is in breach of the contract because Dc!cndant has not
paid invoices that arc allegedly past due. lJpl1l1 examining tbe tenllS of the contract and the
,
.,
~omplaint. the Plaintifl's complaint must be dismissed be~ause it f:lils 10 statc a causc Ill' a<':lilln
upon which relief may be granted.
First. Plaintiff asserts that Defendant is in breach of the contract because "Defendants
have failed and retused to pay the principal balance due." (Complaint Paragraph S). In ordcr f()r
the Defendant to be in breach. the work must have been completed and then Dcfcndant must
hm'c refused to pay the balance due. Nowhere in PJaimiffs complain! docs the Plain!itfallcgc
that the work was completed. Completion of the work is an essential element of the breach of
contra~t because Defendant was to pay Plaintiff only afier the Township had acceptcd the work
and rcleascd the completion bond, Such acceptance and rclease by the Township would only
occur aftcr completion of the work. Thcrefore, Plaintiffs complaint is ddicient in its pleading
because it fails to allegc or aver that the work was completed. [I' the Court were to accept as true
that Defendant has not paid Plaintiff for the invoices that have been received. there is no cause of
action statcd becausc the complaint has not averrcd that the work has been completed.
Second, Plaintiff's complaint should be dismissed for not stating a cause of action upon
which relief may be granted because Plaintiffs complaint fails to allege or aver that thc
Township has accepted Plaintiffs work and that the Township has released the money held
under a completion bond. Paragraph Two of the contract specifically statcs that Dcfendant will
pay Plaintiff"upon acccptance by West Pennsboro Township and upon release of the moncy
held by West Pennsboro Township under a completion bond." (Complaint Exhibit "A")
Plaintiff cannot recover under a claim of breach of the cllntract without asscrting that the
Township has ac(;epted tbe construction and released the completion bond money. Plaintifrs
4
complaint fails to allcgc 01' aver that thc Township has acccptcd complction and Ihat the
Township has released the completion bond money,
Even accepting as true that Defend.mt has not paid all of Plaintiff's outstanding invoiccs,
Plaintiff is not entitled to relief because Plaintiff has ignored thc tenns ofthc conlract which state
that Defendant docs not hal'e to pay li.)r work performed until the Township has accepted the
completion of the conslluction and has released the bond completion money.
7 B.
Defendant's Counterclaim Docs Not Slate A Cause Of Action Upon Which Relief
i\Iav Be Granted Because The Contractor And Suhcontractor Pal'ment Act. Upon
Which Plaintiff Relics. Is Not ApPlicahle As Averred To The Contract Brtween
Plaintiff And Defendant.
o
~y
-V d:-\\..() PlaintitTrelies on Section 505 of the Contractor and Subcontractor Payment Act. 73 1'.5.
La!' ..,
'1~,(, l ~ 505, which states the owner's payment obligations. Under S 505. "[T]he owner shall pay thc
\~:L ucontractor strictly in accordance with tenns of the construction contract." According to
"",'$\1\ Paragraph Two of the contract, payment was "to be made upon acceptance by Wcst P,~nnsboro
Township and upon release of the money held by West Pennsboro Township under a c,'mpletion
bond." In its complaint. Plaintifffaiis to allege 01' aver that West Pennsboro Township had
accepted the construction ponion that represented the unpaid bill. Funher, Plaintiff tailed to
allege or al'er that West Pennsboro Township released any of the completion bond money. which
represents any unpaid ponion of Defendant's bill owed to Plaintiff. Therclore, el'en if Defendant
has not paid the outstanding balance due to Plaintiff. Defendant may not be in breacb of contract
because West Pennsboro Township has not accepted that ponion ofthc constl1lction or released
thc completion bond money for that pO!1jon of the construction. BCL'ause Plaintifffailed to
;Jllege or al'er these tacts in its compbint. Plaintifj's complaint does not stale a cause of action
5
111 th~ alt~rnatiw. th~ Dd~lldants' r-:qu~st that this HOllorahl-: Cl1urtr-:quir-: th-: Plailltiff
to s-:parate the multiple causcs of actinll ill Coullt I of the Complaint into separatc counts.
Respcctfully submitted.
Date: October 1. 1999
IRWIN McKNIGHT & HUGHES
(/'
.) l;vf1~
. 'ames D. Hughes, Esquirc
Supreme Court ID # 5888-1
Mark D. Schwartz. Esquirc
Supreme Court ID;; 70216
60 West Pomtret Street
Carlisle. Pennsyl\'ania 170 I"
(717) 2-19-2353
A nomey for Defendants
IlU,n-nl.l.tO\l^lrme(
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JOHN F, WALTER EXCAVATING, INC., IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PlaintifT
vs.
NO. 99-2755 CIVIL
HARRY H. FOX, JR, and JOHN H. FOX,
tia FOX AND FOX, a Partnership,
CIVIL ACTION - LAW
Defendants
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Theodore A. Adler. Esquire, verify that on July 26, 1999, I caused dle Notice which is attached
hereto as Exhibit A to be placed in the United States mail, first class, postage prepaid and addressed to
Defendants c/o their attorney, Mark D. Schwartz, 60 West Pomfret Street, Carlisle, Pennsylvania 17013.
A copy of the certificate of mailing is attached hereto as Exhibit B.
Respectfully submitted.
REAGER & A
THE OR = A. ADLER. ESQUIRE
Attorney 1.0. No. 16267
2331 Market Street
Camp Hill, PA 17011-4M2
(717) 763.1383
Attorneys for Plaintiff
Exhibit A
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II
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JOHN F. WALTER EXCAVATING, INC" IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
vs. NO. 99-3755 CIVIL
HARRY H. FOX, ,JR. and JOHN n. FOX, CIVIL ACTION - LAW
t/u FOX AND FOX, u Partncrship,
Dcfcndants : JURY TRIAL DEMANDED
~MPORTANT NOTICE
TO: Harry H. Fox, Jr. and John H. Fox,
lla Fox and Fox, a Parlncrship
clo thcir attorncy, Mark Schw:lrtz. Esquire
DATE OF NOTICE:
July 26. 1999
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITIEN
APPEARANCE PERSONALLY OR BY A TIORNEY AND FILE IN WRITING WITH
THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH
AGAINST YOU, UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE
OF THIS NOTICE, A JUDGMENT MA Y BE ENTERED AGAINST YOU WITHOUT
A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT
RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LA WYER AT ONCE. IF YOU
DO NOT IIA VE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR
TELEPIIONE TilE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET
LEGAL IIELI'.
Cumbcrland County Bar Association
2 Liberty A venue
Carlisle, PA 17013
(717) 249-3166
I
,
REAGER&A~
THEO ORE A. ADLER, ESQUIRE
Attorncy LD. No, 16267
2331 Market Street
Camp lIill. PA 17011-4642
(7 I 7) 763-1383
Allorneys for Plaintiff
i.
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exhibit B
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CAPTION OF CASE
(entire caplion must be slaled in full)
John F. Walter Excavating, Inc.
(I'lain tif!)
vs.
Harry H. Fox, Jr. and John H, Fox, tla Fox and Fox, a Partnership
(Defendant)
vs.
No. 275L.,
Civil - Law
19..2L
1. State mailer to br. "gued (1. c., plaintifrs motiun for new trial.
defendant's demurrer to complaint. etc.):
Defendants' Preliminary Objections
2. Identify counsel who will argue ca,,:
(a) for plaintiff: Theodore A. Adler
(b) for defendant: Mark Schwartz
3. I will notify all parties in wrilih!; within lwo da/s tha1 1hib ca\c hat. been
listed for argument._
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(All<llneY~ 1'1-.1il1tlff )
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JOliN F. WALTER EXCA VATINC;, lNC.,
COtJHT OF COMMON PLEAS OF
ClIMHERLAND COlJNTY, PENNSYLVANIA
PLAINTIFF
\'.
NO.
CIVIL 1999
- .;)7SS
IIARRY II. FOX, ,JR., allll JOliN II. FOX,
I/al FOX AND FOX, 11 partnership,
CIVIL ACTION - LAW
DEFENDANTS
PRELlM!NARY OB.IECTIONS OF THE DEFENDANTS
TO TilE PLAINTIFF'S COMPLAINT
AND NOW, this 26th day of July, 1999, come the Defendants, Harry H. Fox, Jr" and John H.
Fox, tla! Fox and Fox, a partnership. by their attorneys. Irwin, McKnight & Hughes and
make the f(lllowing Preliminary Objections tn Plainlil1's Complailll. and in support thereof aver
the f()lIowing:
Miminarv Objeclion in the Nature of a Demurrer Pursuant to Pa. R.C.p. 1028(a)(11:
Breach of Contract
I. Plaintif1~ in its Complaint fikd on or ahout May 7, 1999, seeks, ;,,/('/' alia,
damages for breach of a contract made betwecn thc parties in S,'ptember of 1995. A copy of said
contract is attached herctn as Exhibit "A" and is incorporated herein by rc1i:.renee thereto.
2. Plaintiff c1ail'lS lhalthe Defendants haw breached said ;;onlmct by t(tiling and
rc1using to pay the "halancl'" due to the PlaintifC
3. Th,' (\)mplai!ll f;lils In al cgc or .1'. n '.Il\' f;\Cl.1. wl,ich indie:lte thai the Plainliff
has ci)mplcted the \\,<\rk a~quir,'J under thc \'<'llIra,'1.
WHEREFORE, Defendants, Hany H, Fox, Jr., and John H, Fox, tJal Fox and Fox, a
partnership, respectfully reyuest this Honorable Court to grant its Preliminary Objections in the
nature of a demulTer and dismiss the e1aim of breach of contract in Plaintim' Complaint against
Defendants, Hany H. Fox, Jr., and John H, Fox, tJal Fox and Fox, a partnership lor failure to
state a cause of action upon which relief may be granted.
Preliminary Objection in the Nature of a Demmrer Pursuant to Pa. R.C.P. 1028(a)(4).
Statutory Remedy Pursuant to 73 P.S. 505 /'1 ,W!II~
II. Plaintiff has additionally demanded damages under the Contractor and
Subcontractor Payment Act (73 P.S. 501 ef scq,) (hereinafter "Act").
12. The Act requires that payment be made 10 the cuntractor "slIietly in accordance
with tenns of the construction contract". (73 P,S. 505(a)).
13. The constructiun agreement required payment pursuant to a bid and monies were
to be released only upon acceptance of the Plaintitrs wurk by the Township and the release of
monies held under a completion bond as alleged in paragraph six (6) above.
14. In light of the fact that the construction agreement contained tenns governing
payment and the tim(~ ,)1' payment, the paymcnt ohligati,)J1s undcr the Act arc not applicable. (73
P.S. 505 (h), (c)).
15. The Complaint taiI- to set j('11h any legally or tactually cognizable basis upon
which the rclief sought undcr thc Act could he grantcd.
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JOHN F. \\fALTER EXCAVATiNG, INC., : COURT OF COMMON PU:AS OF
: CUM8ERLANI> COUNTY, PENNSYLVANIA
PLAINTIFF
v.
NO. CIVIL 1999
HARRY H. FOX, JR., and JOliN H. FOX,
tlal FOX AND .'OX, a partnership,
CIVIL ACTION - LA \V
DEFENI>ANTS
CERTIFICATE OF SERVICE
I, Mark D. Schwartz, Esquire, hereby certify that on this date a true and correct copy of
the foregoing document was served upon the attorney for PlaintitT" by first-class United States
Mail, postage prcpaid in Carlislc, Pcnnsylvania 17013, addrcssed as follows:
Thcodorc A. Adler, Esquire
Rcagcr & Adler, P.c.
2331 Market Strect
Camp Hill, PA 17011-4642
,~~'-
Mark D. Schwartz
Irwin, McKnight & Hughcs
Attorncy ID # 70216
Attorncy /ilr Defendants
60 West POm/rCI Stred
Carlisle,I'A 170D
(717) 249-2353
Dale: July 26, 1999
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EXHIBIT "A"
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7177764%6 JOI-D'I F WHLTER EXC
974 POS
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CONTRACT AGREEMENT
AND NOW, this _ day of September, 1995, this Contract Agreement is entered
into by JOHN F, WALTER EXCAVATL."IG, INC., P. O. Box: 175, Newville, pennsylvnnia
1724'1, h~rein'ill~i' ciJl~d"thd CON1~crOR;
AND
FOX & FOX, A Partnership, of 60 S. Pin Oak Dove, Boiling Springs. Pennsylvania,
17007, hereinafter called the OWNER.
1,
TIIE CONTRACTOR ilgrees to perfonn certain work on behillf of the owner as set
forth in Exhibit "A" and attached hereto and made a part of this Agreement, which includes
elCcavatinB and paving for the Cross Roads School Road Estates, Phase II.
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71777G"51~6 JCHI F IJI~LTER EXC
2.
TIlE OWNER agrees to pay the CONTRACTOR for the sum of $140,238.00 for said
work, said payments to be made upon acceptance by West PeMsboro Township and upon release
orthe money held by West pennsboro Township under a completion BDnd,
3,
CONTRACfOR wiU be responsible to notify the West Pennsboro Township to make the
necessary inspections of the work, so that payment may be released from the Township and the
Bond reduced,
4,
CONTRACTOR agrees to begin the work Oil September .;2~ , 1995 and to have the
work fuUy completed by D,c h; ,1995 and agrees to pay a;f ?(.Q per diem
chnrge to OWNER ifthe work has not been completed by . 1995 and until the
work is actually completed.
s.
This CONTRACT will be binding upou the panics, their successors and assigns.
2
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JO-lH F ~JRL TER EXC
';'7.1 PO?
I'IAY 03 '99 10: 19
717?7Go-I5GG
WHEREFORE, thc parties hcrcby enter thcir hands and scals the date first sct forth
nbove.
WlTNESSETn:
\,',1" ,.'
CONTRACTOR:
JOlIN F. WALTER EXCAVATING, me.
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. HARRY H. FOX, Jlt, l'~ ner
/J()r\ J/ 50 (SEAL)
JOHN 11.1<'OX, Partner
3
REAGER & ADLER, r.c.
OY: THEODORE A. ADLER, ESQUIRE
Attorney I.D. No. 1h267
2331 MarKet Slrl'Cl
Camp Hill, I'A 17011
Telephone: (717) 7C,3.13U3
Allornc)'s for Illilintif(s
JOHN F. WALTER EXCAVATING, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
NO. 99-2755 CIVIL
HARRY H. FOX, JR. and JOliN H. FOX,
I/a FOX AND FOX, a Partnership,
CIVIL ACTION - LAW
Defendants
JURY TRIAL DEMANDED
PLAINTIFf'S ANSWER TO
DEFENDANTS' PRELIMINARY OBJECTIONS
1. Admilled.
2. Admilled.
3. Denied. The complaint al!eges that Defendants failed to pay all of the invuices
submitted as they became due.
4. Denied. To the extent the objection stated .11 paragraph 4 of Defendants' preliminary
objections infers or implies that acceptanCl~ by the Township was a precondition to Defendants' paying
Plaintiff the periodic invoices for payn1l'nt, said objection stales a conclusion of law which is denied.
5.
itself.
6.
ils('If.
7.
Denied. The contract which is Exhibit A to the complaint and is in writing speaks for
Denied. Thl' contract which is Exhibit A to tilt' complaint and is in writing Slll'aks for
Dl)!ljpd. Aller n..l~on.lbll' in\l'...tig.ltion, PI.Jinliff is without infurllldlioll !'-uffici('lltlu (Ollll
.l belief as to the tllllh of th" .lVt'lI11t'nh uf pal.lgl.lph 7 uf th., lJ"fl'nd,lIlt's pll'lilllin.ll)' obj,'ction,. S.lid
J.\'(~rnWnls .Jri.\ tIWII'(OIP, den it,d.
8. Denied, After reasonable inV!'sligation, Plaintiff is wilhoul information sufficient to form
a belief as to the truth of the averments of paragraph 8 of the Defendant's preliminary objections. Said
averments are, therefore, denied,
9. Denied as a legal conclusion.
10. Denied as a legal conclusion,
11, Admitted.
12. Denied as a legal conclusion.
13. Denied as a legal conclusion.
14, Denied as a legal conclusion.
15. Denied as a legal conclusion,
16. Denied as a legal conclusion.
17. Denied as a legal conclusion.
18, Denied as a legal conclusion. There are not multiple causes of action pleaded.
WHEREFORE, Plaintiff requests that this Honorable Court dismiss Defendants' preliminary
objections and that Defendants be ordered to answer the Plaintiff's complaint.
Respeclfully submitted,
Date: August 17, 1999
,
REAGER & ADLER, I' .
I tv
THEODO~E A. ADLER, ESQUIRE
Attoflwy I.D. No. 16267
2331 MiI,ket Stred
C.lI11p Hill, PA 17011-4(,42
(717) 763-1383
AlIOIl1"YS for Plaintiff
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JOI'IN F. WALTER
EXCA VA TING, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
HARRY H. FOX, JR.
and JOHN H. FOX,
tla FOX AND FOX, a
partnership,
Defendants
NO. 99-2755 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S COMPLAINT
BEFORE BAYLEY and OLER. JJ.
ORDER OF COURT
AND NOW, this23rd day of November, 1999, upon consideration of
defendants' preliminary objections to plaintiffs complaint, and for the reasons
stated in the accompanying opinion, the preliminary objections are denied.
BY THE COURT,
Theodore A. Adler, Esq.
Thomas O. Williams, Esq.
233 I Market Street
Camp Hill, PA 1701 I
Attorneys for Plaintiff
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.James D. Hughes, Esq.
Mark D. Schwartz, Esq.
60 West Pomlret Street
Carlisle, P A 17013
Attorneys for Defendants
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JOHNF. WALTER
EXCA VA TING, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LA W
HARRY H. FOX, JR.
and JOHN H. FOX,
tla FOX AND FOX, a
partnership,
Defendants
NO. 99-2755 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S COMPLAINT
BEFORE SA YLEY and OLER. 11.
OPINION and ORDER OF COURT
Oler, J., November ,1999.
In this civil case, plaintiff has sued Defendants for breach of contract and
unjust enrichment. The action arises out of an alleged undertaking by plaintiff
whereby certain excavating and paving work was performed by plaintiff on a
project owned by defendants. Plaintiff alleges that it has not been fully paid tor its
work.
For disposition at this timc arc prcliminary objcctions to plaintiff's
complaint, based upon legal insufficicncy of thc plcadingl and lack of conformity
to rule of court.2 Spccifically, defendants contend (a) that the absence of a breach
1 See Pa. R.C.p. 1028(3)(4).
2 See Pa. R.C.P. 1028(a)(2).
.
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In ruling upon a preliminary objection in the nature of a demurrer, the court
"must accept as true all well-pled allegations and material facts averred in the
complaint as well as inferences reasonably deducible therefrom and any doubt
should be resolved in favor of overruling the demurrer.,,23 "The question
presented by a demurrer is whether, on the facts alleged, the law says with
certainty that no recovery is possible. ,,24
In addition, "[ilt is well settled... that a demurrer cannot be a 'speaking
demurrer' and cannot be used to supply a fact missing in the complaint." Johnston
v. Lehman, 148 Pa. Commw. 98,102,609 A.2d 880, 882 (1992).
In the present case, the terms of the alleged written agreement between the
parties, and their alleged practice under the agreement whereby defendants paid
plaintiff as invoices were submitted, suggest the existence of a factual issue as to
the intended condition(s) precedent for payment by defendants. The complaint
does not, however, show on its face and with certainty that no recovery on the part
of plaintiff is possible due to the manifcst absence of a brcach by defendants.
Furthermore, additional facts averred in Defendants' preliminary objections may
not bl~ cmployed by the court to supplement the record for purposes of disposition
of the matter. For these reasons, defendants' preliminary objections in the nature
of a demurrer will be denied.
23 Tiedeman v. City of Philadelphia, 732 A.2d 696, 698 (1'3. Comm\V. 1999).
24 Feigley v. Department of Corrections. 731 A.2d 220, 222 n.5 (Pa. Comnl\V.
1999).
6
...
.
agreement and proof thereof is demanded. By way offurther answer, Walter was to receive
under said agreement $140,238.00 for completion of the work specified in the agreement.
4.
The avcnnents offact contained in paragraph four (4) of the Complaint are admitted.
5.
The avcnnents of fact contained in paragraph five (5) of the Complaint are admitted in
part and denied in part. It is admitted that Walter submitted periodic invoices for the work
perfonned. It is specifically denied that said invoices attached as Exhibit "8" to the Plaintiff's
Complaint are an accurate reflection of the price agreed upon for the work and services rendered
and proof thereof is demanded.
6.
The avennents of fact contained in paragraph six (6) of the Complaint are admitted in
part and denied in part. It is admitted that the invoices attached as Exhibit "B" to the Plaintiff's
Complaint total $171,458.77. It is denied that said invoices attached as Exhibit "8" to the
Plaintiff's Complaint are an accurate reflection of the price agreed upon for the work and
services rendered and proof thereof is demanded.
7.
The avennents of fact contained in paragraph seven (7) of the Complaint are admitted in
part and denied in part. It is admitted that the Defendants have paid PlaintifTSI38,670.50. It is
specifically denied that the principal balance due is $32,788.27 and proof thereof is demanded.
2
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8.
The avennents offact contained in paragraph eight (8) of the Complaint are specifically
denied. By way of further answer, the parties have subsequent to the original contract entered
into a mutual agreement for payment of monies owed by Defendants for work perfonned by the
Plaintiffs.
9.
The aveffi1ents of contained in paragraph nine (9) of the Complaint are conclusions of law
to which no response is required. To the extent that a response may be required, said avennents
are specifically denied. By way of further answer, Plaintiff Walter is in breach of contract by its
failure to complete the work required under the contract.
10.
The avennents offact contained in paragraph ten (\ 0) of the Complaint arc conclusions
oflaw to which no response is required. To the extent that a response is required, it is denied
that this agreement is subject to the Contractor and Subcontractor Payment Act (73 P.S. 501 et
seq.) and proof is demanded.
II.
The avemlents of fact contained in paragraph cleven (\ I) of the Complaint arc denied.
By way of further answer, under the tenns oflhe contract at paragraph two (2), Defendants were
to pay Plaintiff upon acceptance and release of monies hcld by Wesl Pennsboro Township under
a completion bond.
3
...
12.
The avennents of fact contained in paragraph twelve (12) of the Complaint are admitted.
By way of further answer, there was no need to givc Plaintiff Walter notice of alleged
deficiencies under the partics' agreement.
13.
The avennents of fact contained in paragraph thirteen (13) of the Complaint are
specifically denied and proof thereof is demanded.
14.
The avennents contained in paragraph fourteen (14) of the Complaint are admitted.
15.
The avennents contained in paragraph fifteen (15) of the Complaint are conclusions of
Jaw to which no response is required. In the event that a response is required, the avennents are
specifically denied and proof is demanded.
16.
The avennents contained in paragraph sixteen (16) of the Complaint are conclusions of
law to which no response is required. In the event that a response is required, the avennents are
specifically denied and proof is demanded.
WHEREFORE, the Defendants. Harry H. Fox, Jr. and John H. Fox, tla Fox and Fox,
respectfully request this Honorable Court to entcr judgment in its favor and against the Plaintiffs
and dismiss Plaintiff's Complaint.
4
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22.
The avennents contained in paragraph twenty-two (22) of the Complaint are conclusions
of law to which no response is required. To the extent that a response may be required, said
averments are specifically denied.
23.
The avennents contained in paragraph twenty-three (23) of the Complaint are conclusions
oflaw to which no response is required. To the extent that a response may be required, said
averments are specifically denied.
WHEREFORE, the Defendants, Harry H. Fox, Jr. and John H. Fox, tla Fox and Fox,
respectfully request this Honorable Court to enter judgment in its favor and against the Plaintiffs
and dismiss Plaintiff's Complaint.
NEW MA TTER
By way of further defense and response, the Defendants aver the following new matter:
24.
All of the affirmative avemlents contained in paragraphs one (I) through twenty-three
(23) hereinabove are incorporated herein by rcfcrcnce thereto.
25.
Thc partics agrecmcnt rcquircd Plaintiff to furnish all matcrialto do and pcrfonn thc
work includcd in thc scopc of the agrccmcnt. A truc and correct copy of said agrccmcnt dated
Scptcmbcr 1995 is attached as Exhibit "A" and is incorporated hcrcin by reference thercto.
6
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26.
The scope of the work required under the agreement was for excavating and paving work
for the Crossroads School Road Estates, Phase II.
27.
The agreement required that Plaintiff complete the project by December 15, 1995.
28.
The Plaintiff did not complete the excavating and paving work required under the
agreement for the Crossroads School Road Estates, Phase II by December 15, 1995, and has yet
to complete said work.
29.
The agreement requires Plaintiff to pay a $500.00 pel' diem charge to Defendant if the
work was not completed by the end of 1995.
30.
Under the contract, the Defendants have a duty to pay for work perfonned by Plaintiff on
the condition that the work is accepted by West Pennsboro Township and the Township has
released monies being held under a completion bond.
31.
The Defendants have paid Plaintiffs S 138,670.50 which includes payments made
pursuant to release of bond monies by the West Pennsboro Township a~ required under the
contract and monies paid lor additional rock excavation for laying of electrical lines which was
agrel:d to by the parties.
7
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32.
It is the Plaintiffs duty under the contact at paragraph four (4) to notify the township to
make the necessary inspections so that payment may be released.
33.
West Pennsboro Township still has control of monies held under the completion bond
and has not released any additional monies from the bond which would require additional
payments to the Plaintiff.
34.
In the alternative, the parties reached an agreement (hereinafter "settlement") regarding
payment of the Plaintiff's outstanding invoices for work performed by Plaintiff. Attached as
Exhibit "B" and incorporated herein by reference thereto are two letters exchanged betlVeen the
parties' counsel outlining the settlement agreement and its terms.
35.
Pursuant to the settlement, Defendants agreed to pay to the Plaintiff a sum of $35,348.36
plus $5,000.00 in interest to pay the outstanding debt owed by Defendants to Plaintiff (See
Exhibit "B").
36.
By check dated May 27, 1998, Defendants made a payment of $12,500.00 tOIVard the
outstanding agreed upon balance oIVed of $40,348.36 which reduced the outstanding debt to
$27,848.36. Attached as Exhibit "e" and incorporated herein by reference thereto.
8
37.
By check dated August 6, 1998, Defendants made a payment of $13,000.00 toward the
then outstanding balance of 27,848.36 which rcduced the outstanding debt to $14,848.36. The
Plaintiff acknowledged receipt of said payment by letter from its counscl dated Septembcr I,
1998. Attached as Exhibit "D" and incorporated herein by reference thereto are said letters.
38.
Prior to making the final payment under the settlement, it was discovered by Defendants
that the Plaintiff had not completed the work as contemplated under the contract. The
Defendants notified the Plaintiff of this situation by letter dated October 15, 1998. Attached as
Exhibit "E" and incorporated hereby by reference thereto.
39.
The Defendants had originally agrced to the settlement upon represcntation by Plaintiff
that all work contemplated under the original contract had been completed.
40.
Aftcr discovery that all work had not bcen performed, the Dcfendants rcquired that
Plaintiffpcrform its obligations under thc contract before final payment would be made.
41.
The Plaintiff did not complete the remainder ofthc requircd work under the contract and
the Ddendants havc thercfore not made final paymcnt under the scttlement agrcement.
WHEREFORE, the Defendants, Harry H. Fox, Jr. and John H. Fox, (/a Fox and Fox,
respectfully request that this Honorable Court enler judgment in favor of the Defendants and
9
against thc Plaintitfand dismiss the eomplaint ofthc Plaintiff with the costs of this action
award cd to the Dcfendants.
COUNTERCLAIM
Defendants further aver by way of dcfense (set-oft) and as affinnative claims, thc
following counterclaim:
42.
All of the Defendants' responses and avennents in paragraphs one (l) through thirty-three
(41) hereinabove are incorporated herein by reference thereto.
43.
The Plaintiff was required under the contract at paragraph four (4) to fully completc the
work proposed under the contract by December 15, 1995.
44.
The Plaintiff did not complcte thc work contcmplated under the agrcemcnt by December
15, 1995, and has refused to complete said work.
45.
The Plaintiff excavatcd and laid stonc thc cntirc length of the road to the end of the phasc
Illinc.
10
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46.
The Plaintiff then paved only a pOltion of the cntire length of thr.l road leaving
approximately three-hundrcd (300) feet unpaved.
47.
The Plaintiff has not placed a final top-coat on the paved portion of the road and has
failed to complete paving on the remaining three-hundred (300) feet of road to the end of the
phase II line.
48.
The Plaintiff has breached the aforementioned contract between the parties in that it has
failed to complete the work contemplated by the agreement by December 15, 1995.
49.
The agrcement rcquires Plaintiff to pay a $500.00 per diem charge to Defendant if the
work was not completed by the end of 1995.
50.
As of the date of this pleading, one thousand four hundred sixty-eight 1468 (days) have
passed since January I, 1996, subjecting the Plaintiff to charges totaling $734,000 for its failure
to complete the work contemplated under thc agreement.
II
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51.
The Plaintiff will continue to accrue additional charges in the amount of $500.00 per
diem for each day the project remains uncompleted.
52.
The Plaintiff has not paid any of the $734,000 "late charge" to the Defendants for its
failure to complete the project contemplated by the agreement.
53.
The Plaintiff has breached the aforementioned contract between the parties in that it has:
a. failed to complete the work contemplated by the agreement by December
15,1995.
b. failed to pay the Defendant the sum of $500.00 per diem for its failure to
complete the project by December 15, 1995.
54.
As a result of said breach, Defendants has suffered damages as aforesaid and will be
required to hire another contractor to complete the work contemplated under the agreement
which will result in additional costs, expcnses and damagcs to the Defendant.
12
WHEREFORE, the Defendants, Harry H. Fox, Jr. and John H. Fox, (/a Fox and Fox,
request this Honorable eourt to enter judgment in its favor and against the Plaintiff in the amount
in excess of $25,000 said amount being the jurisdictional limit for mandatory arbitration.
cKNIGHT & HUGHES
t(~~
By: Mark D. Schwartz, Esquire
Allomey I.D. No. 70216
60 West PomtTet Street
Carlisle, Pennsylvania 17013
717-249-2353
Counsel for Defendants, Harry H. Fox, Jr. and
John H. Fox, (/a Fox and Fox
Date: January 7, 2000
13
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71777645GS J( F WALTER EXC
.
I'IAY 03 . ~~ 11:1: 11:l
974 P85
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CONTRACT AGREEMENT
AND NOW. this _ day of September, 1995, this Contract Agreement is entered
into by JOHN F. WALTEREXCAVATING,lNC., P. O. Box 175, Newville, Pennsylvrmia
" ". . . .' ..-. ..... . ..' .';
17241; hereiniuter ei11led' thci CONTRACTOR;
AND
FOX & FOX, A P:u1:nership, of 60 S. Pin Oak Drive, Boiling Springs, Pennsylvania,
17007, hereinafter called the OWNEU.
1.
TIlE CONTRACTOR agrees to perform certain work on behillf of the owner as set
forth in Exhibit" A" and attached hereto and made a part of this Agreement, which includes
excavnting and pavinB for the CrossRoads School Road Estates, Phase II.
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EXHIBIT "C"
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LAW' OF#ICES
IRWIN McKNIGHT & HUGHES
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ROGER 8. IRWIN
MARCUS A McKNIGHT, //I
JAMES D. HUGHES
REeECCA R. HUGHES
DANIEL W. DeARMENT
WEST POMFRET PROFESSIONAL BUILDING
60 WEST POMFRET STREET
CARLISLE, PENNSYLVANIA 17013-3222
(717) 249-2353
FAX (717) 249.6354
E.MAIL: IMHLAW@AOL.COM
HAROLD S IRWIN (,9;5. '97;")
HAROLD S. IRWIN, JR (f9S':.1!;1l6)
IRWIN.IRWIN~ IRWIN (1956.19061
'''WiN, ""WiN&. Ma,Nii::;hf (Hla6"So~",
June 10, 1998
VIA HAND DELIVERY
ROGER M. MORGENTHAL, ESQUIRE
FLOWER, MORGNETIL\L, FLOWER & LlNDSA Y
11 EAST HIGH STREET
CARUSLE, PA 170n.J016
fiLE COPl
RE: JOHN F. WALTER EXCA V ATlNGfLIBERTY ASSOCIATES
Dear Roger:
Thank you for your copy of the correspondence from West Pennsboro Township with respect to
the above-referenced matter. Also, per our discussions. [ am enclosing my client's check in the amount
of$[2.500.00 as a principle payment on account toward the outstanding balance due from Libeny
Associates to your client for the work performed at Crossroad School Road Estates. Phase II. West
Pennsboro Township.
Based upon our previous correspondence, the remaining balance due would be calculated as
follows:
Outstanding principle amount due .................. 535,348.36
Interest charge ................................................... S5.000.00
Subtotal ...........................................................540,348.36
Less payment ................................................... SI2.500.00
Totaloutstanding .......................................... $27,848.36
In the event that you have any questions with regard to any of the above. please do not hesitate to
give me a call.
Very truly yours.
JDII:c1c
cc: lIarry II. Fox. Jr.
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IRWIN McKNIGHT & HUGHES
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LAW OFFicES
ROGE.~ B IRWIN
MARCUS A. McKNIGHT, 11/
JAMES D, HUGHES
REBECCA R. HUGHES
DANIEL W. Dt!ARMENT
WEST POMFRET PROFESSIONAL BUILDING
60 WEsr POMFRET STREET
CARUStE PENNSYLVANIA 17013.3222
(717) 249-2353
FAX (717) 249.6354
E_MAIL;IMHLAW@AOL.COM
HAROLD S IRWIN (19~S.Hl;;)
HAROLD S U~WJN, JR (195.4.!!j861
IRW/N, IRWIN &. IRWIN {1!l56.198I5J
IRWIN./RWIN &. McKNIGHT (1986.19941
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August 17, 1998
filE COPl
VIA HAND DELIVERY
ROGER M. MORGENTHAL, ESQUIRE
FLOWER, MORGENTHAL, FLOWER & LINDSAY
11 EAST HIGH STREET
CARLISLE, PA 17013
RE: JOHN WALTER/LIBERTY AssoelA TES
Dear Roger:
Enclosed herewith please find my client's check in the amount ofS13,OOO.OO as an
additional payment on account to your client, John Walter Excavating. It is anticipated that at
the next lot sale the remaining balance will be paid in full. I will have to check with Mr. Fox as
to any movement on the remaining lots.
However, in the meantime, Mr. Fox did go out and make a casual inspection of the
development and questioned whether the entire first phase had in fact been paved. It did appear
thatthc paving had stopped short of where it nceded to be. Therefore, please have Mr. Waiter
review this situation and advise.
I shall look forward to hearing from you.
Very truly yours,
IR\V1N, McKNIGHT & HUGHES
R~'h~ d(:k
JDH:c1c
cc: Mr. Harry H. Fox
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LAW OFFICES
FLOWER, MORGENTHAL. FLOWER & LINDSAY
A PROFESSIONAL CORPORA lION
11 EAST HIGH STREET
CARLISLE, PENNSYLVANIA 17013-3016
JAMES D. FLOWER
ROGER M. MORGENTIIAL
JAMES D. FLOWER. JR.
CAROLl. L1NDS,W
B1ETSCH &. MORGENTHAL
(1975.1985)
FLOWER. KRAMER
MORGENTHAL &. FLOWER
(l985.199l1
(717)243-551)
FAX: (7171 H)-6510
E~mllil: FMFL LlIwlq'llol.com
September 1,1998
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James D. Hughes, Esquire
IRWIN, McKNIGHT & HUGHES
60 West Pomfret Street
Carlisle, PA 17013-3222
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RE: JOHN F. WALTER EXCAVATING/LIBERTY ASSOCIATES
Dear Jim:
Enclosed is a copy of a statement which I received from my client showing the
balance which they calculated after the last payment of $13,000.00.
Where do we stand on getting the balance paid? If there is going to be any
significant delay, it is important that the mortgage gets recorded to secure my client's
interests.
Thanks for YOlJr cooperation.
ve~(J;'
Roger M. Morgenthal
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JOHN F. W ALTER EXCAVATING, INC., : COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
v.
NO. CIVIL 1999
HARRY H. FOX, JR., and JOHN H. FOX,
tJaJ FOX AND FOX, a partnership,
CIVIL ACTION - LA W
DEFENDANTS
CERTIFICATE OF SERVICE
I, Mark D. Schwartz, do hereby certifY that I am this day serving a true and correct copy
of the foregoing document upon the person, and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules ofeiviJ Procedure, by depositing the same
with the United States Post Office in Carlisle, Pennsylvania, postagc prcpaid, certified, restricted
delivery, and addressed as follows:
Theodore A. Adler, Esquire
2331 Market Street
eamp Hill, PA 1701 I
IRWIN, McKNIGHT & HUGHES
By ,I J.. (1f,J w. f<
~h\\'artz, Esquire
60 West Porn fret Strcct
Carlisle. P A 17013
717-249-2353
Supreme Court J.D. II 702 J 6
Allorney for the Defendant,
Harry H. Fox.lr. and 10hn II. Fox
T/a Fox and Fox, a Partnership
Date: l 7 ' 2000
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28. Admitted in part; denied in part. It is admitted that Plaintiff continucd to perform
work on the Project after December 15, 1995. To thc extent the averments of paragraph 28 imply
or infer that this constitutes a breach of contract, said implications and inferences are denied. It
is further averred that Plaintiff performed work after December 15, 1995, with the express
approval of Defendant.
29. Denied. The Agreement, being in writing, speaks for itself. To the extent the
avenllents of paragraph 29 of Defendant's New Matter are inconsistent with the plain meaning
thereof, they arc dcnicd. In further response, it is averred that the $500.00 per diem charge is not
part of the Agreemcnt and was never agreed to by Plaintiff.
30. Denied as a Icgal conclusion.
31. Admitted in part; denied in part. It is admitted that Defendant paid Plaintiff
$] 38,670.50. The rcmaining avcnncnts are denied becausc they arc either legal conclusions or seek
to characterize the contents of a written agrcemcnt, which speaks for itself.
32. Dcnied as a legal conclusion.
33. Dcnied. Plaintiff, after rcasonablc investigation, is without infonllation sufficient to
fornl a belief as to the truth of the avcnllcnts of paragraph 33 of Defendant's New Matter. Said
avenllcnts arc, therefore, denied and proof is demanded at trial.
34. Admitted in part; denied in part. It is admitted that the lellers identified as Exhibit
B to Defendant's New Maller were exchanged by counsel for the parties. Since the documents are
in writing and speak for themselves. Defendant', characterization of their contents, to the extent they
arc inconsistent with the plainm('aning thereof. arc denied.
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35. Denied. Thc Agrecmcnt, bcing in writing, speaks for itself. To the extcnt the
averments of paragraph 35 of Dcfendant's New Mattcr arc inconsistent with the plain meaning
thereof, thcy are denied.
36. Admittcd.
37. Admitted.
38. Denied. Plaintiffcomplcted all of the paving work contained in the scope of work
for the Projcct. Dcfendant rcfused to make the final payment because Plaintiff refused to perlonn
additional work without compensation.
39. Denied. The tenns of the settlcmcnt arc as set forth in documents identified as
Exhibit B, which arc attached to Defendant's Ncw Matter. At the time these Icttcrs were exchanged,
Dcfendant knew what work Plainliffhad pcrfol1ncd and agreed thatthc Project had been completed
and that Plaintiffwas due the balance of its contract pricc.
40. Denied. Defcndant rcfused to makc final payment because Plaintiff would not
perfoml additional paving work unless thcrc was an agreement to pay for the additional work.
41. Denied. Plaintiff completed the work contained in the scope of work included in the
Agreement.
WHEREFORE, Plaintiff, John F. Walter Excavating, Inc., respectfully requests this
Honorable Court to enter judgment in its !'l\'Or and against Defendant in the amount of$24,193.77,
plus statutory interest, penalties. attorney's fees and costs,
3
ANSWER TO CO! J1'ITERCLAlM
42. The avcnnents of paragraphs one (I) through forty-one (41) of Plaintiffs Complaint
and Rcply to New Maller are incOll1orated herein by reference as if fully set forth.
43. Denied. Thc Agrecment, bcing in writing, speaks for itself. To the extcntthc
averments of paragraph 43 of Dcfendant's New Maller are incOJ,sistent with the plain meaning
thereof, they are denied.
44. Admilled in part; denied in part. It is admilled that Plaintiff continued to perfoml
work after December 15, 1995 with the approval and concurrence of the Defendant. It is denied that
the Plaintiffhas failed to complete the work contained in the Agreement. To the contrary, all of the
work has been completed.
45. Denied. Plaintiff provided stone from Station 13 + 43 to 16 + 33 as required by the
Agrcement.
46. Admitted in part; denied in part. It is admitted that a portion of the road was unpaved.
It is denied that the scope of Plaintiffs work included paving the entire length of road. Rather,
Plaintiffs scope of work required it to pave from Station 0 + 09 to Station 13 + 43.
47. Admillcd in part; denied in part. It is admilled that the entire length of the road has
not been paved and that a final top-coat has not been placed on the paved portion oflhe road. It is
denied that this work was required by the scope of work contained in the Agreement.
48. Denied as a legal conclusion.
49. Denied as a legal conclusion. In llJl1hcr rcsponsc. it is denied that the parties c\'cr
agreed to a per diem charge.
4
50. Denicd as a Icgal conclusion. In fUlthcr response, it is avcrrcd that the Project work
was completed and accepted by the Defcndant on or about August 6, 1996.
51. Dcnicd as a Icgal conclusion. In further response, Plaintiff incolllorates herein by
reference the avellncnts of the New Matter to Counterclaim.
52. Admitted. In lurther response, until the filing of its Answer to Plaintiffs eomplaint,
Defendant ncvcr rcqucstcd any latc charge payment.
53. Denied as a legal conclusion.
54. Dcnied. PlaintifT completed all of the work contained in its contractual scope of work
Defendant has failed to pay for the work.
NEW MATTER TO THE rOIJNTERCI AIM
55. The avcllnents of paragraphs one (1) through fitly-four (54) of Plaintiff's eomplaint
and Reply to Dcfcndant's Ncw Matter and Plaintiffs Answer to Defendant's eountcrclaim are
incorporated hcrein by reference as if fully set forth.
56. PlaintifTcould not complctc its work until it rcceived the plan ofPcnnsylvania Power
& Light showing electric and communication eascmcnts at the Projcct.
57. Defendant did not providc thc plan until Novcmbcr 1995.
58. Subscquent to rcccipt of the plan, Plaintiffs opcrations wcrc halted becausc of
weather conditions, as the Wintcr of 1995-1996 was historically one of the worst winters in the
gcographical arca of the Project.
5
59. Throughout the period ofPlamtifrs pr.rfollllance, including the pcriod through May
) 996, Defendants requested additional work be perfollllcd by Plaintiff in connection with the Project,
which Plaintiffperfolllled and for which it was paid by Defendant.
60. Defendant knew that the additional work would extend the completion date of the
Project.
61. Defendant's claim for late charges is barred by the applicable statute of limitations.
62. The "late charge" clause alleged by Defendant to be part of the Agreement is
ullenforceable.
63. The "late charge" clause alleged by Defendant to be part of the Agreemcnt has been
waived by Defcndant.
64. The settlement agreement allegedly entered into by the parties is an accord and
satisfaction thereby barring any "Iatc charge" claims.
65. Defendant is estopped from assessing "late charges" allegedly contained in the
Agreement.
66. The Project was substantially completed in August 1996.
67. Defendant suffered no damages as a rcsuIl of the Project not being substantially
completed by December 15, 1995.
68. The Counterclaim of Defendant sl'cking late charges in the amollnt of $734,000 is
frivolous and without any legal merit.
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JOHN F. WALTER EXCA VA T1NG, INC., : COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTn-F
v.
NO. CIVIL 1999 - 2755
HARRY H. FOX, JR., /!lid JOHN H. FOX,
tJa/ FOX AND FOX, a partnership,
CIVIL ACTION - LAW
DEFENDANTS
DEFENDANT'S ANSWER TO NEW MATTER TO THE COUNTERCLAIM
55. See Defendant's Answer with New Matter and Counterclaim which are
incorporated herein by reference thereto. To the extent that Plaintiff has made factual allegations
in its Reply to New Matter and Answer to Defcndants' Counterclaim, these allegations are
specifically denied.
56. Denied as stated. By way of further Reply, the PP&L Plan involved excavation
work which was not part of the agreement, but rather was a separate arrangement between the
parties. The provision of this Plain in no way kept Plaintiff from substantial completion of the
work contemplated by the written agreement.
57. After reasonable investigation, Defcndants are without sufficient knowledge or
information to form a belief as to the truth of this allegation and therefore it is specifically
denied.
58. Denied as stated. By way of further reply, it is denied that the weather conditions
caused Plaintiff to be unable to complete its work under the contract by December 15, 1995.
59. Denied as stated. By way of further reply, the only other work involved the
excavation for utility lines which was a separate arrangement between the parties.
-
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60. Denicd as statcd. By way of further reply, the additional work contcmplatcd by
parties was not of the natun: and scopc which would havc necessarily extended the completion
date of the work contemplated by thc written contract.
61. This allegation is a conclusion of law to which no response is required. To the
extent that an answer is deemed nccessary this allegation is specifically denied.
62. This allegation is a conclusion of law to which no response is required. To the
extent that an answer is deemed ncccssary this allegation is specifically denied.
63. This allegation is a conclusion of law to which no response is required. To the
extent that an answer is deemed necessary this allegation is specifically denied.
64. This allegation is a conclusion of law to which no response is required. To the
extent that an answer is deemed nccessary this allegation is specifically denied.
65. This allegation is a eonclusion of law to which no response is required. To the
extent that an answer is deemed nccessary this allegation is specifically denied.
66. Denicd. By way of further reply, the project was not completed, due to the fact
that therc was no topcoat nor had the Plaintiff compktcd paving to the proper phasc line.
Additionally, the Township still has not releascd the remainder ofthc bond monies. The project
remains uncompleted.
67. Denicd. By way of furthcr reply, thc markctability and ovcrall development of
the lots, intcr alia, was and continucs to bc adversely affccted by thc uncompleted project
rcsulting in Defendants having to sell lots for less money. In addition, the bonds held by the
township have to hc rene\\'(~d on a ycarly hasis thus incurring more cxpcnse filr Dcfcndants.
68. This allegation is :l conciusion of law to which no response is rcquircd. To thc
cxtcnt that an answcr is dccmcd J1<'ccssary this allegation is spccilically dcnicd.
WHEREFORE, the Defendants, Harry H. Fox, Jr. and John H. Fox, (/a Fox and Fox,
respectfully request this Honorable Court to enter judgment in its favor and against the Plaintiffs
and dismiss Plaintiff's eomplaint.
By:
J;'"
Mark D. Schwartz, Esquire
Attorney J.D. No. 70216
60 West Pomfret Street
Carlisle, Pennsylvania 17013
717-249-2353
eounsel for Defendants, Harry H. Fox, Jr. and
John 1-1. Fox, (/a Fox and Fox
Date: June2f 2000
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REAGER &. ADLER, P.C.
ATTORNEVS AT lAW
2331 MARKET sn~EET
CAMP HilL, PA 17011.4642
(717) 763-1383
"IIG ? 1 2000
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JOHN F. WALTER EXCAVATING, INC., : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintili
'I.
: No. 99-2755 CIVIL TERM
HARRY H. FOX, JR., and JOHN H. FOX, : CIVIL ACTION - LAW
tla FOX AND FOX, a partncrship,
Defcndants
RULE
AND NOW, this L ~ J.day of August, 2000, a Rule is issued to Defendants, Harry H.
Fox, Jr., and John H. Fox, (/a Fox and Fox, a partnership, to show cause why Plaintiffs Motion
to Compel should not be granted.
Rule retumable within i 0
days of service.
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JOHN F. WALTER EXCAVATING, INC., : IN TilE COURT 01< COMMON PLEAS
: CUMUERLAND COUNTY, PENNSYLVANIA
PlaintilT
v.
: No. 99-2755 CIVIL TERM
HARRY H. FOX, JR., and JOHN H. FOX, : CIVIL ACTION - LAW
t/a FOX AND FOX, a partncrship,
Defendants
MOTION TO COMPEL ANSWERS TO INTERROGATORIES
AND NOW, comes the Plaintiff, John F. Walter Excavating, Inc. (hereinafter "Plaintiff')
by and through its altorneys, Reager, Adlcr & Cognclli, who move this Honorable Court to
compcl Defendanls, Harry H. Fox, Jr. and John H. Fox, t/a Fox and Fox, a partncrship
(hcrcinatler "Defendanls"), 10 answer inlCITogalorics and rcqucsts for documents propounded to
them by Plaintiff and as reasonlhcreforc slatc:
I. On June 27, 2000, Plaintiff served intcITogalories and requcst for documents on
counsel for the Dcfcndants.
2. Responses to intcITogatories were due on July 27, 2000.
3. On July 3!, 2000, counsel for Plaintiffwrotc to counsel for the Defendants
inquiring as to when responses would bc made. A copy oflhe lcller is allached as
Exhibit "A". No rcsponse was made to the Icllcr.
4. No objections havc been made hy Dcfcndanls to the inlcITogalorics or rcqucst for
documents.
5. As ofthc date of this motion, Defendanls have failcd to respond in any fashion to
Plaintiffs discovery request.
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CERTIFICATE O..E.SERVICE
AND NOW, this 3'd day of October, 2000, I hereby verify that I have caused a true and
correct copy of the foregoing Praecipe for Listing Case for Trial to be placed in the U.S. mail,
first class, postage prepaid and addressed as follows:
Mark D. Schwartz, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
earlisle, PA 17013
Theooore A. Adler, Esquire
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JOHN F. WALTER ExeA V ATlNO, INC., : IN THE eOURT OF eOMMON PLEAS
: eUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: No. 99-2755 CIVIL TERM
HARRY H. FOX, JR., and JOHN H. FOX, : CIVIL AeTION - LAW
(/a FOX AND FOX, a partnership,
Defendants
ANSWER OF PLAINTIFF, JOHN F. WALTER EXCAVATING, INC. TO
DEFENDANTS' PETITION FOR LEAVE OF COURT TO
AMEND DEFENDANTS' ANSWER WITH NEW MATTER.
1. Admitted.
2. Admitted.
.) Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted in part.
It is admitted that Exhihit "B" is a copy of Defendants' Answer
with New Matter and Counterclaim. It is denied that "issues regarding the quality of the work
that had been completed hy Plaintiff' were not raised hecause they "were not known or
knowahle." The project has hecn completed since 1996. Additionally. Defendants have sold the
lots and homes have hecn huilt onlhcm. MorcO\w.the \\011 perfi.lIl11eO hy Plaintiffwas
inspected and accepted hy thc Township in which the project is located.
8. Denied. Plaintifffilcd a Rl'ply to l\:ew ~\j;ltkr and an Answer and New Matter to
the Counterclaim.
9. Admitted.
10. Admilled with clarification. On.llln~ 27, 2000, Plaintiff served interrogatories
and rcqucsts for production of documcnts upon thc Dcfcndants. Dcspit~ rcpcalcd assuranccs that
responses would be filcd,nonc werc forth coming. On AugllSl16, 2000, PlaintifTfilcd a Motion
to Compel and lhis eourt entered a Rule on August 23, 2000, which was retumable twenty (20)
days after scrvice. Answcrs wcre ultimately filed by thc Defendant on Septcmbcr 8, 2000.
11. Admitted. By Ictter dated May 31,2000, counscl for Plaintiff advised counsel for
Defendants that it intended to list the casc for trial once the pleadings wcre closed unless
Defendants' counsel objected. No objections were madc.
12. Denied. After reasonablc invcstigation, Plaintiff has insufficient infollnation to
foml belief as to thc truth of thc avellncnts contained in paragraph 12. Said avemlents are,
therefore, denicd. Plaintiff avers, however, that it had a representative visit the project within the
last month and thc project is apparently completed.
13. Denied. Representations havc continually bcen made by Defendants that they
want to rcsolve the litigation. Based upon thcsc representations, Plaintiff gave Defendants an
extension oftimc 10 answcr thc original eomplaint. After a number ofpostponcments a meeting
was hcld which proved uscless. Thcrcaftcr, Plaintiff filed a 10.day Default Notice to which
Defendants filed a serics of frivolous preliminary objections, all of which were dismissed by the
court on Novcmbcr 23, 1999.
14. Denied. Plaintiff bas always insisted that it pcrfollncd all the work for which it
now seeks paymcnl. This bas bccn "clear" for four (..t) years.
IS. Dcnicd. To thc extcnt thc Dcfendant claims deficicncies in thc work perfollned
by Plaintiff. it is al'crrcd that all of Plaintiff's work was pcrfollncd in acconluncc with the
rcquircments of the contract, was 'nsp'xtcd by the Township and was accepted by the Township.
,
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Moreover, Defendants, to this date, have never noti lied Plainti ff of any deficiencies in the work
perfol1ned. Additionally, there is nothing in Defendants' petition that dcscribcs these allegcd
deficiencies.
16. Denied. Plaintiff incorporates herein its answcr to paragraph 15.
17. Admittcd. In further response, it is averred that Defendants have had cighteen
(18) months to schedule discovery.
18. Admitted in part; denied in part. Plaintiffs counsel advised Defendants' counsel
that it intcnded to list the case for (rial after thc plcadings were closed. After receiving
Defendants' eounterclaim for $738,000.00, Plaintiffsought discovery related to the
Counterclaim. Defendants ncver indicated until the filing ofthis Petition that they intended to
take any discovery.
19. Admittcd in palt; denied in part. It is admittcd that this case has not previously
been listcd for trial. It is denied that additional discovery will not delay the trial in this matter.
NEW MATTER
20. At no time did Defendants' counsel advise Plaintiffs counsel that it wished to file
an amcndcd answer.
21. Gil'enthc fact that Defendants' Answer with New Mattcr and Counterclaim was
filed on January 7, 2000, there was sufficicnt time for Defcndants to filc an amendment at that
time.
22. Other than vaguc allegations of defcctil'c work, Dcfendants' Pctition provides no
reason as to why Defcndants hdicl'c thcy nccd to file an amcndcd answcr. Morcovcr,
Dcfcndants ha\'c failed to allach to the Pctition a copy of their proposed amended plcading.
3
23. Bascd upon previous actions and inactions of Defendants, Plaintiff believes and
avers that the purpose oflhe Petition is to delay a trial on the merits.
WHEREFORE, Plaintiff/Respondent respectfully requests that this court deny
Defendants' Petition to File an Amended Answer with New Maller and Counterclaim.
Date: November 21, 2000
Respectfully s milled,
REAGER & I[;L , P.c.
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Theodore A. Adler, Esquirc
Allomey I.D. No. 16267
2331 Market Street
Camp Hill. P:\ 1701 ].4642
Telephonc: (717) 763-1383
Allomeys for Plaintiff
.;
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JOHN F. WALTER
EXCAVATING, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
HARRY H. FOX, JR., and
JOHN H. FOX, t/a FOX
AND FOX, a partnership,
Defendants
No. 99-2755 CIVIL TERM
ORDER OF COURT
AND NOW, this 6th day of December, 2000,
upon consideration of Defendants' Petition To Amend Answer
with New Matter and Counterclaim, and following a
conference held in the chambers of the undersigned judge on
this date in which Plaintiff was represented by Theodore A.
Adler, Esquire, and Defendants were represented by Mark D.
Schwartz, Esquire, and pursuant to an agreement of counsel,
Defendants' petition is granted, without prejudice to
Plaintiff's right to preserve the issue of the statute of
limitations and any other defenses with respect to any
amended allegations for disposition at time of trial.
Defendants' Amended Answer with New Matter and Counterclaim
shall be filed on or before Friday, Thursday, December 21,
2000.
By the Court,
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Theodore A. Adler, Eoquire
2331 Market Street
Camp Hill, PA 17011
For the Plaintiff
Mark D. Schwartz, Esquire
60 W. Pomfret Street
Carlisle, PA 17013
For the Defendants
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11, 2001, at 9:30 a.m. Counsel have estimated the duration
of trial as one day.
Counsel have indicated that they do not at
this time anticipate a settlement of the case prior to
trial.
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By the Court,
.,
Theodore A. Adler, Esquire
2331 Market Street
Camp Hill, PA 17011
For the Plaintiff
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J. Wesley Oler', Jr., J'.'
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Mark D. Schwartz, Esquire
60 W. Pomfret Street
Carlisle, PA 17013
For the Defendants
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JOlIN F. WALTER EXCAVATING, INC., : COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
v.
NO. CIVIL 1999 - 2755
HARRY H. FOX, JR., and JOHN H. FOX,
tJaI FOX AND FOX, a partncrship,
CIVIL ACTION - LAW
DEFENDANTS
NOTICE TO PI.,EAD
TO: 10HN F. WALTER EXCAVATING, INC.
YOU ARE HEREBY N011FlED that you must responsively plead to the within Defendant's
Amended New Matter with Counterclaim, pursuant to Pa. R.C.P. 2252(d) within twenty (20) days after
service, or a default judgment may be entered against you.
HUGHES
By:
a D. Schwartz, Esquire
60 West Pomfret Street
Carlisle, PA 17013
717 -249-2353
Supreme Court I.D. No: 70216
Auomey for Defendants,
Harry H. Fox, lr., and John H. Fox
, , . ,':-" ". .. ': - . , ."_ '.. " "" " , 'c . " .:" . :',_ ,I . I.'
JOHN F. WALTER EXCAVATING, XNC., : COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
v.
NO.
CIVIL 1999 - 2755
HARRY H. FOX, JR., and JOHN H. FOX,
tJaJ FOX AND FOX, a partnership,
CIVIL ACTION - LAW
DEFENDANTS
DEFENDANT'S AMENDED NEW MA'ITER
WITH COUNTERCLAIM
1. Defendant herewith incorporates the allegations of the New Maller and Counterclaim
filed on or about January 7, 2000.
2. In September 2000, the Defendant undertook the project of completing the paving and
excavating work on the Cross Road School Road Estates Phase II.
3. During the course of completing this project, Defendant became aware of several
deficiencies in the work previously perfonned by Plaintiff. These deficiencies include, inter alia, the
following:
a. improper stone depth at various portions along the roadway;
b. the road was not properly crowned;
c. swails were not properly installed;
d. the catch basins were installed five (5) inches too high requiring the road to be
raised; and
e. tar and chip shoulders were not properly installed.
4. Previously, West Pennsboro Township had inspected the work done by the Plaintiff and
had authorized release of monies for payment by Defendant to Plaintiff.
5. Defendant relied on the inspections done by the township and their authori7Altion for
release OfpaymCl1t when paying for work done by the Plaintiff.
, .
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6. West Pennsboro Township is now aware of the deficiencies noted above and has required
the Defendant to correct the deficiencies in the roadway in order to complete Cross Road School Road
Estate Phase II.
7. Defendant has incurred costs and expenses in the amount of $33,210 to cure the above
deficiencies and to properly complete the Cross Road School Road Estate Phase II project as
contemplated by the original agreement between the parties.
8. Plaintiff is in breach of contract for their failure to complctc the project pursuant to the
terms of the contract and for their failure to perform the work required in a good and workman like
manner.
9. As a result of the breach, Defendant has suffered damages as aforesaid and had to hire
another contractor, Dave Leininger, to complete the work contemplated under the agreement which
resulted in additional costs, expenses and damages to the Defendant.
WHEREFORE, the Defendants, Harry H. Fox, Jr., and John H. Fox, tla Fox & Fox, requests this
Honorable Court to enter judgment in its favor against Plaintiff in the amount in excess of $25,000.00
said amount being the jurisdictional limit for mandatory arbitration.
Respectfully submitted,
By:
Mar D. Schwartz, Esquire
60 West Pomfret Street
Carlisle, PA 17013
717-249-2353
Supreme Court I.D. No: 70216
Attorney for Defendants,
Harry H. Fox, Jr., and John H. Fox
December 3J... 2000
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JOHN F. WALTER EXCA V ATlNG, INC., : COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
v.
NO. CIVIL 1999 - 2755
HARRY H. FOX, JR., and .JOHN H. FOX,
tJaI FOX AND FOX, a partnenhlp,
CIVIL ACTJON - LAW
DEFENDANTS
CERTIFICATE OF SERVICE
I, Mark D. Schwartz, do hereby certifY that I am this day serving a true and correct copy of the
foregoing document upon the person, and in the manncr indicated below, which selvice satisfies the
requirements of the Pennsylvania Rules of Civil Procedure, by deposiiing the same with the United States
Post Office in Carlisle, Pennsylvania, poslJlge prepaid, and addressed as follows:
Theodore A. Adler, Esquire
Thomas O. Williams, Esquire
REAGER & ADLER, P.C.
2331 Market Street
CampHiII,PA 17011
By:
~~
fcKNIGHT & HUGHES
Marl, D. Schwartz, Esquire
60 West Pomfret Street
Carlisle, PA 17013
7] 7-249-2353
Supreme Court Lu. # 70216
Attorney for the Defendants,
Harry H. Fox, Jr. and John H. Fox
(/3 Fox & Fox, a Part.ncrship
Date: December _~_, 2000
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