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HomeMy WebLinkAbout99-02953®_A MAR 0 4 2003 P POW ELL, TRACHTMAN. LOGAN. C'ARRI.IL BOWMAN A'• LOMBARDO. P.C. DAVID W. FRANCIS, RSQ. A'rIoRNrY I.D. #53718 114 NORTH SECOND S'H(EFl' HARRISBURG. FA 17101 (717)238.9300 FAX: (717) 238.9325 ATTORNEYS FOR FREDERIC M. FREDERICK; AND FREDERICK, SFII3ER'1' & ASSOCIATES. INC. SENIOR COTTAGES OF SHIPPENSBURG, LTD; MILLENNIUM PROPERTIES, LLC; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and DRANK L. REESE,AIA Additional Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Tenn j? RDER AND NOW, this 6 [day o _ 20(3, upon consideration of Plaintiffs' Motion for Scheduling Conference and any response thereto, the Court hereby orders a scheduling cv 3 conference for / cirr' I-.j?? , ?003 in 6xd;;417 ' 3 zop./ory 141r? n- HB:4889Gvi 3794-01 ?- h1 CC H! ....' i; if 0 POWELL,'I'RACIri-NIAN, LOGAN, CARRI.F. BOWMAN & LOMBARDO. P.C. DAVID W. FRANCIS, ESQ. A170RNEY I.D. P53718 KIiLLY 11. DECKER A'rl'ORNEY I.D. A 84886 114 NORI'11 SECOND STREFT IIAIUUSBCIRG,, I'A 17101 - 1717) 238.9300 FAX: (717) 238-9325 ATTORNEYS FOR ITFI)ERIC M. FRIi )FRICK; AND FREDERICK, SEIBER1'.b' ASSOCIATES. INC. SENIOR COTTAGES OF SHIPPENSBURG, LTD; MILLENNIUM PROPERTIES, LLC; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and FRANK L. REESE,AIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Term Additional Defendants DEFF,NDANTS FREDERIC M. FREDERICK AND FREDERICK, SEIBERT & ASSOCIATES INC.'S MOTION FOR A SCHEDULING CONFERENCE Defendant's Frederic M. Frederick and Frederick, Seibert & Associates, Inc.'s by and through their undersigned counsel hereby move the Court as follows: I . This lawsuit is almost four years old. 2. It was initiated on May 14, 1999 by way of writ of sunnnons. 3. A complaint was finally filed on October 25. 1999. HB:46896v1 3794.01 4. Since it was first filed, plaintiffs have done very little to aggressively pursue this case. As example, in the almost four years that this case has been pending, plaintiffs have not served any interrogatories or requests for documents; subpoenaed any documents; or conducted any depositions, whatsoever. 5. Defendant's Frederic M. Frederick and Frederick, Seibert & Associates, Inc. (together °FSAI") desire to bring this matter to a conclusion; accordingly FSAI moves this Honorable Court for a Scheduling Conference the purpose of which is to establish a schedule for completion of discovery and trial in this case. WHEREFORE, Plaintiffs respectfully request that this Honorable Court provide for a scheduling conference in this matter. Dale: October 25, 2001 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN LOMBARDO, P.C. By Da'6id W. Francis I.D. #53718 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 HB 46896v1 3794.01 2 CERTIFICATE OF SERVICE 1, David W. Francis, hereby certify that on February 28, 2003, a true and correct copy of the within Defendants Frederic Al. Frederick and Frederick, Seiberl & Associates, I71c, s Molion for a Scheduling Conference was served upon the following person(s) by first class U.S. Mail, postage prepaid: Michael D. Reed, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Senior Collages of Shippensburs; Amy Coryer-Host, Esq. Lavery Faberty Young & Patterson, P.C. 301 Market Street, suite 800 P.O. Box 1245 Harrisburg, PA 17108-1245 Attorne.rfor Frank Reese.lrehilecls and Frank L. Reese 111A .CS J 1. Kelly H. Decl - H©:37178.13794.01 O?r 3 33 c? t1' 'S) lei i. U C:J O q 'J 3 i i 1 SENIOR COTTAGES OF SHIPPENSBURG, LTD; MILLENNIUM PROPERTIES, LLC; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Term V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and FRANK L. REESE, AIA Additional Defendants CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Frederic M. Frederick and Frederick, Seibert & Associates, Inc. certify that (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and HB:39758.13794.01 (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By David W. Francis I.D. #53718 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Date: August 2, 2000 HB:39758.13794-01 SENIOR COTTAGES OF SHIPPENSBURG, LTD; MILLENNIUM PROPERTIES, LLC; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Tenn V. I I PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and FRANK L. REESE, AIA Additional Defendants NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS 17nrr Wren^,r.,., _ __ Frederic M. Frederick and Frederick, Seibert & Associates, Inc. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By David .Francis I.D. #53718 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Date: July 13, 2000 HB:39600.13794-01. Se Pr P1 Se Re De 6 E t L;UIV11V1UIVVVL'NLI h Ur NtNNbY LVNIVIH COUNTY OF CUMBERLAND yior Cottages of Shippensbure, Ltd; Millennium :)perties, LLC; and Senior Cottages of America, LLC, iintiffs v. Frederic M. Frederick; and Frederick, Lbert a Associates, inc., Defendants v. Pierce :se, Architects; and Frank L. Reese, ATA, Additional File No. 29.1g?? r.ivjlTerm Pendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 O: _Rarcy_A._Iiesi,-Surveyor.,-!402_.Bear-_Valley_Rd-,-FS.. Lcudon,_PA-172.2!1 (Nanm of Person or Entity) Vithin twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: See Exhibit A t 114 North Second Street. Harrisburg, PA 17101 (Address) bu may deliver or mail legible copies of the documents or produce things requested by this subpoena, together Pith the certificate of compliance, to the party making this request at the address listed above. You have the right > seek in advance the reasonable cost of preparing the copies or producing the things sought. you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, he party serving this subpoena may seek a court order compelling you to comply with it. HIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Jame David 14. Francis Address: 114 North second street Harrisburg, PA 17101 Telephone: (717) 238-9300 Supreme Court ID ft 53719- - - - - -- -_- Attorney For: Defendants BY THE COURT: / ProthonotarryylClerk, Civ Ision Date: _Jcd lv _o^LC - / Seal of the Court Deputy (EN. 7/97) Exhibit A Any and all documents pertaining to surveying work performed by Barry A. Best, Surveyor for Lovering Johnson Inc. on the Project. Any and all correspondence between Barry A. Best, Surveyor and Lovering Johnson, Inc., D.H. Martin Excavating, Inc., Frederick, Seibert & Associates, Inc. or the Borough of Shippensburg relating to the Project. Any and all applications for payment, invoices, claims or change order proposals or executed change orders on the Project. Any and all documents relating to any claims for additional costs for surveying work on the Project. Any and all documents relating to any impacts or disruptions to surveying work caused by operations of Lovering Johnson or D.H. Martin Excavating, Inc. Any and all documents identifying additional surveying costs caused by any impacts or disruptions attributable to Lovering Johnson and/or D. H. Martin Excavating, Inc. H8t3963813794.01 CERTIFICATE OF SERVICE 1, David W. Francis, hereby certify that on July 13, 2000, a true and correct copy of the within Notice of Intent to Serve Subpoena to Produce Documents and Things for Discoveo) Pursuant to Rule 4009.21 was served upon the following person(s) by first class U.S. Mail, postage prepaid: Michael D. Reed, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Senior Cottages of Shippensburg Frank J. Lavery, Jr., Esq. Lavery & Associates, P.C. 301 Market Street, Suite 800 P.O. Box 1245 Harrisburg, PA 17108-1245 Attorney for Frank Reese Architects and Frank L. Reese AIA David W. Francis HB:371?8.13794-01 CERTIFICATE OF SERVICE I, David W. Francis, hereby certify that on August 2, 2000, a true and correct copy of the within Certificate Prerequisite to Service ofa Subpoena Pursuant to Rule 4009.22 was served upon the following person(s) by first class U.S. Mail, postage prepaid: Michael D. Reed, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Senior Cottages of Shippensburg Frank J. Lavery, Jr., Esq. Lavery & Associates, P.C. 301 Market Street, Suite 800 P.O. Box 1245 Harrisburg, PA 17108-1245 Attorney for Frank Reese Architects and Frank L. Reese ,41A David .Francis H9:3717e.13794•01 .,. . ... ;, Lavery, Faherty, Young & Patterson, P.C. Attorneys for Defendant By: Frank J. Lavery, Jr., Esq. Frank Reese Architects, PA, and ID9 42370 Frank L. Reese, AIA By: Amy L. Coryer-Host ID#82718 225 Market Street, Suite 304 Harrisburg, PA 17108-1245 (717)233-6633 SENIOR COTTAGES OF SHIPPENSBURG, IN THE COURT OF COMMON LTD,, MILLENIUM PROPERTIES, LLC, and PLEAS OF CUMBERLAND SENIOR COTTAGES OF AMERICA, LLC, COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW FREDERIC M. FREDERICK and FREDERICK, SEIBERT & ASSOCIATES, INC. NO. 99-2953 Defendants V. JURY TRIAL DEMANDED PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and FRANK L. REESE, AIA, Additional Defendants REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANTS FREDERICK M. FREDERICK AND FREDERICK SEIBERT & ASSOCIATES INC. BY ADDITIONAL DEFENDANT FRANK REESE ARCHITECTS AND FRANK L. REESE AIA TAKE NOTICE: Pursuant to Pa.R.C.P. 4014, you are hereby required to admit or deny the truth of the following statements, or otherwise comply with the rule, within thirty (30) days. No written contracts exist between Defendants Frederic M. Frederick or Frederick, Seibert & Associates, Inc. and Additional Defendant, Frank Reese Architects or Frank L. Reese concerning the subject Senior Cottages project. ANSWER: ADMIT: DENY: If denied, please consider this a Request for Production of Documents pursuant to Pa.R.C.P. 4009.11 and attach copies of any written contracts. 2. Defendant Frederic M. Frederick or Frederick, Seibert & Associates, Inc. generated the final site plan used in the subject Senior Cottages project. ANSWER: ADMIT: DENY: If denied, please consider this a Request for Production of Documents pursuant to Pa.R.C.P. 4009.11 and attach documentation to support that Defendant Frederick did not generate the final site plan. 3. Defendant Frederic M. Frederick or Frederick, Seibert & Associates, Inc. had the responsibility for determining the location of the buildings within the subject project limits. ANSWER: ADMIT: DENY: If denied, please consider this a Request for Production of Documents pursuant to Pa.R.C.P. 4009.11 and attach documentation to support that Defendant Frederick did not have the responsibility for determining the location of the buildings within the subject project limits. 4. By an invoice dated February 18, 1997, Defendant Frederic M. Frederick or Frederick, Seibert & Associates, Inc. charged the Plaintiff, Senior Cottages, $11,700 for developing the site plan layout design. ANSWER: ADMIT: DENY: 5. Defendant Frederic M. Frederick or Frederick, Seibert & Associates, Inc. has no evidence to support the contention that Additional Defendant Frank Reese Architects or Frank L. Reese had the responsibility for placement of the buildings within the subject Senior Cottages Project. ANSWER: ADMIT: DENY: If denied, please consider this a Request for Production of Documents pursuant to Pa.R.C.P. 4009.11 and attach documents to support the contention that Additional Defendant Frank Reese Architects or Frank L. Reese had the responsibility for placement of the buildings within the subject Senior Cottages Project. Respectfully submitted, Lavery, Faherty, Young & Patterson, P.C. Date: q /q /02- By: . Amy L. Coryer ost, Esquire Atty No. 82718 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 Attorney for Additional Defendant Frank Reese Architects and Frank L. Reese CERTIFICATE OF SERVICE I, Kelly M. Foreman, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on the date listed below, I did serve a true and correct copy of the foregoing document upon the following person(s) at the following address(es) by sending same in the United States mail, first-class, postage-paid: Michael D. Reed, Esq. Mette, Evans & Woodside 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney, for Plaintiffs David W. Francis, Esq. Powell. Trachtman, Logan, Carrie, Bowman & Lombardo, P.C. 114 N. Second Street Harrisburg, PA 17101 Atlorney for Original Defejrdants Frederic M. Frederick and rreclerick, Seibert & Associates, Inc. Date: Kel M. ?oreman ?" U ?- ? , ,: u. E; la , ?? iv ; c>f-' -`? `.,.. In ?^Fn ?I;? Q ?? L ? j r V ??- <? N J o U SENIOR COTTAGES OF SHIPPENSBURG, IN THE COURT OF COMMON PLEAS LTD; MILLENNIUM PROPERTIES, LLC; and CUMBERLAND COUNTY, PA SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and FRANK L. REESE, AIA Additional Defendants No. 99-2953 Civil Term CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Frederick, Seibert & Associates, Inc. certifies that (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. LOGAN,CARRLE, 1, P.C. Date: March 22, 2001 Wavid W. Fran&.- Aponte} s for Frederick Seibert & Associates HB:41337.13794-01 SENIOR COTTAGES OF SHIPPENSBURG, IN THE COURT OF COMMON PLEAS LTD; MILLENNIUM PROPERTIES, I,I,C; CUMBERLAND COUNTY, PA and SENIOR COTTAGES 01, AMERICA, LLC. Plaintiffs No. 99-2953 Civil Term V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and FRANK L. REESE, AIA Additional Defendants NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Frederic M. Frederick and Frederick, Seibert & Associates, Inc. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. 13y D vid Francis I.D. #53718 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Date: February 12, 2001 Ha:39600.13794-01 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Senior Cottages of Shippensburg, Ltd; Millennium Properties, LLC; and senior Cottages of America, LLC, Plaintiffs v. Frederic M. Frederick; and Frederick, Seibert 8 Associates, Inc., Defendants v. Pierce Reese, Architects; and Frank L. Reese, AIA, Additional File No. y Defendants 9-799_-C1v ;7 serm _ SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANTTO RULE 4009.22 TO: SGS Architectural Assxiates, Inc., one Tyler Court, Carlisle, PA 17013 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: See Attachment A at (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together . with the certificate of compliance, to the party making this request at the address listed above.You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name David IV. Francis Address: 114 North Second Street lfarrisburp, PA 17101 Telephone:(717) 238-9300 Supreme Court ID # 53718 Attorney For: Defendants t BY THE Date: .Jt -t y IUr o2o'no Seal of the Cout I Prothonolary,Clerk, Deputy (Elf. 7/97) ATTACHMENT A Instructions and Definitions The word "document" or "documents" refers to any printed, written, taped, recorded, graphic, computerized print-out, or other tangible matter, from whatever source, however produced or reproduced, whether in draft or otherwise, whether sent or received, or neither. It includes, but is not limited to, the original, a copy (if the original is not available) and all non-identical copies (whether different from the original because of notes made on or attached to the copy or otherwise) of any and all writings, correspondence, letters, telegrams, cables, telexes, contracts, proposals, agreements, minutes, acknowledgments, notes memoranda, analysis, projections, work papers, books, forecasts or appraisals, papers, records, reports, diaries, statements, questionnaires, schedules, computer programs or data, books of account, calendars, graphs, charts, transcripts, tapes, transcripts or recordings, photographs, pictures or film, ledgers, registers, worksheets, summaries, digests, financial statements, and all other information or data, records or compilations, including all underlying supporting or preparatory material now in your possession, custody or control, or available to you, your counsel, accountants, agents, representatives or associates. "Document" or "documents" specifically includes documents kept by individuals in their desks, at home or elsewhere. It includes all e-mail or other e- communications or electronic communications, 2. The term "communication" or "communicate" includes or requests information relating to all oral communications and "documents" (as described above), whether or not any such documents, or information contained therein, was transmitted by its author to any other person. Ha.39598.13794-01 3. The term "you," "your," "S.G.S.," or other reference to anyone to whom this Subpoena to Produce Documents or Things is directed shall mean Sowers, Garner, Saylor Architects Engineers, Inc., its directors, officers, employees, agents, and representatives, as well as any attorneys, experts, investigators or persons acting or purporting to act on its behalf'. 4. The term "S.S.G.S." shall mean Scholl, Sowers, Garner, Saylor, Architectural Associates, Inc. 5. The term "project" shall mean the project known as the Senior Cottages of Shippensburg, constructed at 300 Baltimore Pike, Shippensburg, PA 17257, also known as SSGS Project No. 98082. 6. The term "Lovering-Johnson" shall mean Lovering Johnson Inc. 300 Baltimore Road, Shippensburg, PA 17257. 7. The term "Senior Cottages" shall mean Senior Cottages of America L.L.C. and/or t' Senior Cottages of Shippensburg, L.L.C. Documents to be Produced A copy of any contract between S.S.G.S. and Frank Reese Architects, Inc. for architectural services in connection with the project. 2. A complete copy of the entire file for the project. 3. Copies of any and all correspondence relating to the project. 4. Copies of all inspection reports relating to the project. 5. Copies of all written reports relating to the project. 6. Copies of all photographs relating to the project. M8:39596.13794.01 7. Copies of all construction schedules relating to the project. 8. Copies of all claim documentation relating to the project. 9. Copies of all applications for payment relating to (lie project. 10. Copies of all diaries, logs, reports, notes, memoranda, field notes or other such documents relating to the project. 11. Copies of all minutes of meetings relating to the project. HS 39598 13794-01 1 CERTIFICATE, OF SERVICE I, David W. Francis, hereby certify that on March 22, 2001, a true and corr^ct copy of the within Certificate Prerequisite to Service of Subpoena was served upon the following person(s) by first class U.S. Mail, postage prepaid: David A. Fitzsimons, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Senior Cottages of Shippensburg Cheryl L. Kovaly, Esq. Lavery Faherty Young & Patterson, P.C. 301 Market Street, Suite 800 P.O. Box 1245 Harrisburg, PA 17108-1245 Attorney for Frank Reese Architects and Frank L. Reese AIA David W. Francis HB:37178.13794-01 (f': '?tl?l_I _ i]a SENIOR COTTAGES OF SHIPPENSBURG, LTD; MILLENNIUM PROPERTIES, LLC; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and FRANK L. REESE, A-LA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Term Additional Defendants CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Frederic M. Frederick and Frederick, Seibert & Associates, Inc. certify that (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and HB:39758.13794-01 4 (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By/?? David W. Francis- -- 1.D. #53718 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Date: August 2, 2000 H8:39758.13794-01 SENIOR COTTAGES OF SHIPPENSBURG, LTD; MILLENNIUM PROPERTIES, LLC; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and FRANK L. REESE, AIA Additional Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Tenn NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVFRY PURSUANT TO RULE 4009.21 Frederic M. Frederick and Frederick, Seibert & Associates, Inc, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By D W. Francis I.D. #53718 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Date: July 13, 2000 HB:39rr00.13794.01 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Senior Cottages of Shippensburg, Ltd; Millennium Properties, LLC; and Senior Cottages of America, LLC, Plaintiffs v. Frederic M. Frederick; and Frederick, Seibert B.Associates, Inc., Defendants v. Pierce Reese, Architects; and Frank L. Reese, AIA, Additional File No. gg-2g-U?;vit_ `_- Term Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANTTO RULE 4009.22 TO: John R. Kissin y_1/4 Molly Pitcher (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: at (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above.You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name David 14. Francis Address: 114 North Second Street flarrisburr PA 17101 Telephone:__ (717) 238-9300 Supreme Court ID # 53718 Attorney For: _ Defendants Date: Y_ f Seal of the Court BY THE OURT: Prothonotary/Clerk, Civ' ision r Deputy (Elf. 7/97) Exhibit A Any and all documents pertaining to surveying work performed by John Kissinger Surveying for Lovering Johnson Inc. on the Project. Any and all correspondence between John Kissinger Surveying and Lovering Johnson, Inc., D.H. Martin Excavating, Inc., Frederick, Seibert & Associates, Inc. or the Borough of Shippensburg relating to the Project. Any and all applications for payment, invoices, claims or change order proposals or executed change orders on the Project. Any and all documents relating to any claims for additional costs for surveying work on the Project. HB:39637.13794-01 CERTIFICATE OF SERVICE I, David W. Francis, hereby certify that on July 13, 2000, a true and correct copy of the within Notice of Intent to Serve Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 was served upon the following person(s) by first class U.S. Mail, postage prepaid: Michael D. Reed, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Senior Collages of Shippensburg Frank J. Lavery, Jr., Esq. Lavery & Associates, P.C. 301 Market Street, Suite 800 P.O. Box 1245 Harrisburg, PA 17108-1245 Attorney for Frank Reese Architects and Frank L. Reese AJA David W. Francis HB:37178.13794.01 CERTIFICATE OF SERVICE I, David W. Francis, hereby certify that on August 2, 2000, a true and correct copy of the within Certificate Prerequisite to Service ofa Subpoena Pursuant to Rule 4009.22 was served upon the following person(s) by first class U.S. Mail, postage prepaid: Michael D. Reed, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Senior Cottages of Shippensburg Frank J. Lavery, Jr., Esq. Lavery & Associates, P.C. 301 Market Street, Suite 800 P.O. Box 1245 Harrisburg, PA 17108-1245 Attorney for Frank Reese Architects and Frank L. Reese AIA Davi W. Francis HB:37178.13744-01 t vY. M ?j1 t s, x , s i iJ SENIOR COTTAGES OF IN THE COURT OF COMMON PLEAS SHIPPENSBURG, LTD; MILLENNIUM PROPERTIES, LLC; and SENIOR CUMBERLAND COUNTY, PA COTTAGES OF AMERICA, LLC. Plaintiffs No. 99-2953 Civil Tenn V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and FRANK L. REESE,AIA Additional Defendants CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Frederic M. Frederick and Frederick, Seibert & Associates, Inc. certify that (1) a notice of intent to serve the subpoena with a copy of the subpoena a aced thereto was mailed or delivered to each party at least twenty days tt h prior to the date on which the subpoena is sought to be served, (2) certificate, (3) a copy of the notice of intent, including the proposed subpoena, is attached to this no objection to the subpoena has been received, and HB:39756.137WI (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. BY Davi W. Francis I.D. #53718 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Date: August 1, 2000 H8:39758.13794-01 j i SENIOR COTTAGES O SHIPPENSBURG, LTD; MILLENNIUM PROPERTIES, LLC; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and FRANK L. REESE, AIA Additional Defendants IN THE COURT OF COMMON CUMBERLAND COUNTY, PA No. 99-2953 Civil Terri NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DVRCnV>. DV n Tm 1 __ Frederic M. Frederick and Frederick, Seibert & Associates, Inc, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, p.C. B r !/ Y David W. Francis _ I.D. #53718 E. 114 North Second Street - Harrisburg, PA 17101 (717) 238-9300 Date: July 7, 2000 HB:39600.13794-01 OMMONWEALTH OF PENNSYLVAt COUNTY OF CUMBERLAND Senior Cottages of Shippensbure, Ltd; Millennium Properties, LLC; and Senior Cottages of America, LLC, Plaintiffs v. Frederic M. Frederick; and Frederick, Seibert a Associates, Inc., Defendants v. Pierce Reese, Architects; and Frank L. Reese, AIA, Additional : File No. 99_?g53 Sivii Te m Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: -David H. Martin Excavating, Inc., 4961 Cumberland Highway, Chambersburg (Name of Person or Entity) Within twenty (20) days after service of this subpoena, documents or things: you are ordered by the court to produce the following See Attachment "A" at Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C., 114 North Second ul (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name David W. Francis Address: 114 North Second Street Harrisburg, PA 17101 Telephone: (717) 238-9300 Supreme Court ID # 53718 Attorney For: Defendants BY THE COURT: Prothonotary/Clerk, Civil Division Date: Seal of the Court Deputy (Eff. 7/97) eL__ ATTA HMGNT A Ustnlctions and Definitions 1 • The word "document" or "documents" refers to any printed, written, taped, recorded, graphic, computerized print-out, or other tangible matter, from whatever source, however produced or reproduced, whether in draft or otherwise, whether sent or received, or neither. It includes, but is not limited to, the original, a copy (if the original is not available) and all non-identical copies (whether different from the original because of notes made on or attached to the copy or otherwise) of any and all writings, correspondence, letters, telegrams, cables, telexes, contracts, proposals, agreements, minutes, acknowledgments, notes memoranda, analysis, projections, work papers, books, forecasts or appraisals, papers, records, reports, diaries, statements, questionnaires, schedules, computer programs or data, books of account, calendars, graphs, charts, transcripts, tapes, transcripts or recordings, photographs, pictures or film, ledgers, registers, worksheets, summaries, digests, financial statements, and all other information or data, records or compilations, including all underlying supporting or preparatory material now in your possession, custody or control, or available to you, your counsel, accountants, agents, representatives or associates. "Document" or "documents" specifically includes documents kept by individuals in their desks, at home or elsewhere. It includes all e- mail or other c-communications or electronic communications. 2. The term "communication" or "communicate" includes or requests information relating to all oral communications and "documents" (as described above), whether or not any such documents, or information contained therein, was transmitted by its author to any other Ha:39598.13794-01 person. 3. The tern "you," "your," "D. H. Martin," or other reference to anyone to whom this Subpoena to Produce Documents or Things is directed shall mean David Ii. Martin Excavating, Inc., its directors, officers, employees, agents, and representatives, as well as any attorneys, experts, investigators or persons acting or purporting to act on its behalf. 4. The term "project" shall mean the project known as the Senior Cottages of Shippensburg, constructed at 300 Baltimore Pike, Shippensburg, PA 17257. 5. The term "Lovering-Johnson" shall mean Lovering Johnson Inc. 300 Baltimore Road, Shippensburg, PA 17257 Documents to be Produced I • A complete copy of the plans, drawings and specifications for the project. 2. Any and all documents pertaining to how the rock excavation work should be bid and/or priced by D.H. Martin on the project. 3. Any and all documents pertaining to whether D. H. Martin anticipated that rock would be encountered during excavation on the project. 4. Any and all documents pertaining to any rock excavation work performed on the project. 5. Any and all documents pertaining to any claim or change order for rock excavation work performed on the project. 6• Any and all change orders issues to D.H. Martin for rock excavation work performed on the project. Ha:39598.73194•01 7. Any and all backup documentation of costs relating to any rock excavation perfonned on the project. 8. Any and all correspondence between D. H. Martin and any other party pertaining to rock excavation on the project. 9. Any and all correspondence or other documents copied to D.H. Martin and pertaining to rock excavation on the project. 10. Any and all correspondence between D. H. Martin and any other party pertaining to the type and location of excavation work to be performed on the project by D. H. Martin and/or Lovering Johnson. 11. Any and all correspondence between D. H. Martin and Lovering-Johnson pertaining to D. H. Martin's scope of work for the project. 12. Any and all documents comprising D. H. Martin's estimate for the project, including all take off sheets relating to excavation and/or rock excavation. 13. Any and all documents comprising D. H. Martin's bid for the project. 14. Any and all applications for payment submitted by D. H. Martin to Levering- Johnson for work performed on the project. 15. Any and all documents relating to pertaining to any discussions or meetings relating to rock excavation and/or the costs associated therewith. 16. D. H. Martin's job file for this project. HB:39598.13794-01 CERTIFICATE, OF SERVICE I, David W. Francis, hereby certify that on August 1, 2000, a true and correct copy of the within Certificate Preregnisite 10 Service ofa Subpoena Pursuant to Rule 4009.22 was served upon the following person(s) by first class U.S. Mail, postage prepaid: Michael D. Reed, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Senior Cottages of Shippensburg Frank J. Lavery, Jr., Esq. Lavery & Associates, P.C. 301 Market Street, Suitc 800 P.O. Box 1245 Harrisburg, PA 17108-1245 Attorney for Frank Reese Architects acrd Frank L. Reese ,41A David W. Francis H@:37178.13754-01 I 1'I' ?'i . ?'I 1? ?1 ?? l:. \? "' ?''? } .::? ?' 1''? (, POWELL, IRACIITMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. DAVID W. FRANCIS, F-SQ. ATTORNEY I.D. #53718 114 NORTH SECOND STREET HARRISBURG, PA 17101 (717)238.9300 rAX:(717) 238.9325 ATTORNEYS FOR DEFENDANTS SENIOR COTTAGES OF SHIPPENSBURG, LTD; MILLENNIUM PROPERTIES, LLC; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Term V FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and FRANK L. REESE,AIA Additional Defendants FREDERIC M. FREDERICK and FREDERICK, SEIBERT & ASSOCIATES' ANSWER TO PIERCE REESE, ARCHITECTS, and FRANK L. REESE'S NEW MATTER 9. Denied as a conclusion of law to which no response is required. 10. Denied as a conclusion of law to which no response is required. H. Denied as a conclusion of law to which no response is required. 12. Denied as a conclusion of law to which no response is required. 13. Denied as a conclusion of law to which no response is required. HB:39507.13794-01 14. Denied as a conclusion of law to which no response is required. 15. Denied as a conclusion of law to which no response is required. 16. Denied as a conclusion of law to which no response is required. IT Denied as a conclusion of law to which no response is required. 18. Denied as a conclusion of law to which no response is required. 19. Denied as a conclusion of law to which no response is required. 20. Denied as a conclusion of law to which no response is required. 21. Denied as a conclusion of law to which no response is required. 22. Denied as a conclusion of law to which no response is required. By way of additional answer, FSAI avers that Frank Reese Architects located the building in the area where rock was shown on the survey drawings. 23. Denied as a conclusion of law to which no response is required. To the extent a response is required, everybody was aware that rock conditions existed where the building was located. This fact was repeatedly pointed out to plaintiffs and additional defendants. 24. Denied as a conclusion of law to which no response is required. 25. Denied as a conclusion of law to which no response is required. 26. Denied as a conclusion of law to which no response is required. 27. Denied as a conclusion of law to which no response is required. 28. Denied as a conclusion of law to which no response is required. HB:39507.13794-01 29. Denied as a conclusion of law to which no response is required. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By David W. Francis I.D. #53718 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Dater July 7, 2000 HB:39507.13794-01 3 VERIFICATION I, Frederic M. Frederick, verify that the statements in the attached Frederic M. Frederick and Frederick, Seibert & Associates' Answer to Pierce Reese, Architects and Frank L. Reese's New Matter are true and correct, to the best of my knowledge, information and belie r, and that this verification is being made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. X", Frederic . Fred¢eri*c/k ?- Date: G- Z-1. t HB:38339.13794-01 CERTIFICATE OF SERVICE I, David W. Francis, hereby certify that on July 7, 2000, a true and correct copy of the within Frederic M. Frederick and Frederick, Seibert & Associates' Answer to Pierce Reese, Architects, and Frank L. Reese's Mew Matter was served upon the following person(s) by first class U.S. Mail, postage prepaid: Michael D. Reed, Esq. Mette, Evans & Woodside 3401 North Front Street P.Q. Box 5950 Harrisburg, PA 17110-0950 Attorney for Senior Cottages of Shippensburg Frank J. Lavery, Jr., Esq. Lavery & Associates, P.C. 301 Market Street, Suite 800 P.O. Box 1245 Harrisburg, PA 17108-1245 Attorney for Frank Reese Architects and Frank L. Reese AIA David W. Francis HB:37178.13794-01 ! J!LI SENIOR COTTAGES OF IN THE COURT OF COMMON PLEAS SHIPPENSBURG, LTD; MILLENNIUM CUMBERLAND COUNTY, PA PROPERTIES, LLC; AND SENIOR COTTAGES OF AMERICA, LLC, PLAINTIFFS V. NO. 99-2953 CIVIL TERM FREDERIC M. FREDERICK AND FREDERICK, SEIBERT & ASSOCIATES, INC., JURY TRIAL DEMANDED DEFENDANTS V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; AND FRANK L. REESE, ALA, ADDITIONAL DEFENDANTS NOTICE TO PLEAD TO: PLAINTIFFS You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be filed against you. TO: CO-DEFENDANTS You are hereby notified to plead to the enclosed New Matter and New Matter elo, eos Pursuant to PA.R,C.P. 2252(4) within twenty (20) days from service hereof or a default judgment may be filed against you. LAVERY & ASSOCIATES, P.C. Date: 23 o By: By .t? Frank J. Lavery, r. P.O. Box 1245 Harrisburg, PA 7108-1245 (717) 233-6633 Atty I.D. 42370 Attys for Defendants Frank Reese Architects and Frank L. Reese AIA r"`1 SENIOR COTTAGES OF SHIPPENSBURG, LTD; MILLENNIUM : PROPERTIES, LLC; AND SENIOR COTTAGES OF AMERICA, LLC, PLAINTIFFS r? IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. NO. 99-2953 CIVIL TERM FREDERIC M. FREDERICK AND FREDERICK, SEIBERT & ASSOCIATES, INC.' DEFENDANTS JURY TRIAL DEMANDED V. PIERCE REESE. ARCHITECTS; FRANK REESE, ARCHITECTS; AND FRANK L. REESE, ALA; ADDITIONAL DEFENDANTS ANSWER OF ADDITIONAL DEFENDANTS FRANK REESE ARCHITECTS AND FRANK L. REESE AIA TO JOINDER COMPLAINT OF DEFENDANTS FREDERICK M. FREDERIC AND FREDERICK SEIBERT & ASSOCIATES INC. Additional Defendants, Frank Reese Architects and Frank L. Reese, AIA, by and through their authorized counsel, Lavery & Associates, hereby Answer and respond to this Joinder Complaint as follows: 1. Admitted. 2. Admitted. 3. Denied as stated. It is admitted only that Additional Defendant, Pierce Reese Architects was a Minnesota professional organization which has been dissolved and is no I /, longer an existing entity. It is admitted only that Additional Defendant, Pierce Reese Architects prepared a preliminary site plan for the Shippensburg project. However, it is denied that the preliminary site plan prepared by this Additional Defendant was ultimately used for the project. To the contrary, the actual site plan that was used for the project was designed by, laid out by, and came from the original Defendants. 4. Admitted in part; denied in part. It is admitted only that this Answering Additional Defendant is a Minnesota professional association with its address as indicated in this paragraph. By way of further answer, as to the remaining averments of this paragraph, these are denied as unintelligible as stated. By way of additional further answer, it is denied that this Answering Additional Defendant determined whether housing units would be constructed for the project or that this Answering Additional Defendant prepared the site plan that was actually used for the project. 5. Admitted in part; denied in part. It is admitted only that this Answering Additional Defendant is the President of Frank Reese Architects. It is further admitted that this Answering Additional Defendant drafted preliminary sketches in connection with the Shippensburg project. It is denied that this Answering Additional Defendant or Additional Defendants, Pierce Reese Architects or Answering Additional Defendant, Frank Reese Architects drafted or laid out the site plan that was ultimately used for this project. 6. Denied. It is denied that the Additional Defendants had primary responsibility for determining the location of buildings within the project limits. On the contrary, this responsibility was that of the original Defendants, Frederic M. Frederick and 2 r. Frederick, Seibert & Associates, Inc. 7. Denied. These averments are denied as conclusions of law to which no response is necessary pursuant to the Pennsylvania Rules of Civil Procedure. By way of further answer, it is denied that Answering Additional Defendants caused any damage to Plaintiff, or were responsible for the placement of the buildings within the project limits. On the contrary, this responsibility was with the original Defendants, Frederic M. Frederick and Frederick, Seibert & Associates, Inc. and which are solely responsible to Plaintiff for any damages, if said damages are proven. 8. Denied. These averments are denied as conclusions of law to which no response is necessary pursuant to the Pennsylvania Rules of Civil Procedure. Tot he extent that further answer may be deemed necessary, it is denied that Answering Additional Defendants are liable to any party to this action or that Answering Additional Defendants are responsible for the site plan that was used for the project and for any non-disclosure of rock as alleged in Plaintiffs' Complaint. NEW MATTER 9. The Joinder Complaint fails to state claims or causes of action upon which relief may be granted. 10. Plaintiffs' Complaint fails to state claims or causes of action upon which can be granted. 11. The claims against the Additional Defendants are barred in whole or in part by the applicable statute of limitations. 3 r"`. 12. The claims against the Additional Defendants are barred in whole or in part by the assumption of the risk by Plaintiffs and/or the original Defendants and Additional Defendants plead application of the doctrine of assumption of the risk. 13. Plaintiffs, upon information and belief, were negligent and Plaintiffs' claims are barred in whole or in part by their own comparative negligence and Additional Defendants plead application of the Comparative Negligence Act of the Commonwealth of Pennsylvania. 14. Plaintiffs' claims are barred in whole or in part by the doctrine of contributory negligence. 15. The claims against the Additional Defendants are barred and/or are limited by application of the doctrine of ]aches. 16. The claims against the Additional Defendants are barred and/or are limited by application of the doctrines of waiver and estoppel. 17. The claims against the Additional Defendants are barred in whole or in part by application of the doctrine of accord and satisfaction. 18. The claims against the Additional Defendants are barred in whole or in part by application of the doctrines of payment and release. 19. The claims against the Additional Defendants are barred in whole or in part by application of the doctrine of economic loss. 20. Any damages sustained by Plaintiffs, if proven, were caused by Plaintiffs' own knowing conduct and decisions, and by the knowing conduct and decisions of the 4 r1 original Defendants who were responsible for the survey of the site for preparation of a site plan and for the site plan design and lay-out which was ultimately used for the project. 21. Plaintiffs' claims are barred and/or are limited by its own failure to mitigate damages. 22. The actual responsibility for locating buildings on the project site was with the Plaintiffs and/or the original Defendants and not with the Additional Defendants. The claims against the Additional Defendants are barred in whole or in part by the terms of any applicable written contracts executed by Plaintiffs and/or by the original Defendants. 23. At all times material hereto, the original Defendants were on site for the project and were aware or should have been aware of the rock conditions existing on the site as were Plaintiffs. With this knowledge, the original Defendants and Plaintiffs were responsible for the ultimate location of the buildings at issue on the site and for the number of units which were to be constructed on the site. 24. Any injuries or damages sustained by Plaintiff, if proven, were caused by the negligence and/or breach of contract of the Plaintiff and the original Defendants. WHEREFORE, Additional Defendants, Frank Reese, Architects and Frank L. Reese, AIA pray that the joinder Complaint filed against them be dismissed with prejudice and that judgment be entered in their favor, together with allowable costs of this action. FREDERICK. SEIBERT & ASSOCIATES. INC. 25. For purposes of this New Matter and Crossclaim only, the allegations of ?5 ^N rll? Plaintiffs' Complaint against original Defendants, Frederic M. Frederick and Frederick, Seibert & Associates, Inc. is incorporated by reference as if fully set forth at length herein without admission or adoption. 26. The averments of Answering Additional Defendants' Answer and New Matter are incorporated by reference as if fully set forth at length herein. 27. Any injuries or damages sustained by Plaintiffs, if proven, were caused solely and proximately by the conduct, actions, inactions, decisions, negligence and breach of contract of the original Defendants, Frederic M. Frederick and Frederick, Seibert & Associates, Inc. 28. Original Defendants, Frederic M. Frederick and Frederick, Seibert & Associates, Inc. are joined for purposes of contribution or indemnity over to the Answering Additional Defendants. 29. Original Defendants, Frederic M. Frederick and Frederick, Seibert & Associates are alone liable to Plaintiffs, jointly and severally liable to Plaintiffs, or liable over to Additional Defendants, Frank Reese, Architects and Frank L. Reese, AIA. for full indemnity. WHEREFORE, Additional Defendants, Frank Reese, Architects and Frank L. Reese, AIA pray that original Defendants, Frederic M. Frederick and Frederick, Seibert & Associates, Inc. be found alone liable to Plaintiffs, jointly and severally liable to Plaintiffs, 6 or liable over to Additional Defendants, Frank Reese, Architects and Frank L. Reese, AIA for full indemnity. Respectfully submitted, LAVERY & ASSOCXATES, P.C. Date: 7 By: Fran Lavery, Jr. P.O. x 1245 Harrisburg, PA 17 8-124_` (717) 233-6633 Atty I.D. 42370 Attys for Defendants Frank Reese Architects and Frank L. Reese AIA VERIFICATION The undersigned hereby verifies that the facts set forth in the foregoing Answer to joinder Complaint are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the defense of this lawsuit. The language of the Answer to joinder Complaint is that of counsel and not my own. I have read the Answer to joinder Complaint and to the extent that the Answer to Joinder Complaint is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the Answer to joinder Complaint is that of counsel, I have relied upon my counsel in making this verification. The undersigned also understands that the statements therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification, to authorities. Date:-?? Frank L. Reese (" '1?1 CERTIFICATE OF SERVICE I, Sandra K. Spade, an employee of the law firm of Lavery & Associates, P.C., do hereby certify that on this 2?'L`day of February, 2000, I served a true and correct copy of the foregoing ANSWER OF ADDITIONAL DEFENDANTS TO JOINDER COMPLAINT via U.S. First Class mail, postage prepaid, addressed as follows: Michael D. Reed, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0960 David W. Francis, Esquire POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. 114 North Second Street Harrisburg, PA 17101 k /?JQ Sandra K. Spade t. . I i I, SENIOR COTTAGES OF SHIPPENSBURG, LTD., MILLENNIUM PROPERTIES, LLC, and SENIOR COTTAGES OF AMERICA, LLC, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-2953 CIVIL TERM V. FREDERIC M. FREDERICK and FREDERICK, SEIBERT & ASSOCIATES, INC., JURY TRIAL DEMANDED Defendants V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; AND FRANK L. REESE, ALA, Additional Defendants PLAINTIFFS SENIOR COTTAGES OF SHIPPENSBURG LTD.. MILLENNIUM PROPERTIES. LLC. AND SENIOR COTTAGES OF AMERICA LLC'S ANSWER TO DEFENDANTS FREDERIC M. FREDERICK AND FREDERICK SEIBERT & ASSOCIATES INC.'S NEW MATTER AND NOW, come Plaintiffs, Senior Cottages of Shippensburg, Ltd., Millennium Properties, LLC, and Senior Cottages of America, LLC, by and through their attorneys, Mette, Evans & Woodside, and respond to Defendants', Frederic M. Frederick and Frederick, Seibert & Associates, Inc., New Matter as follows: ., l no responsive pleading is required by the Pennsylvania Rules of Civil procedure. fully set forth herein. p amt as if 37. Denied. The averments of paragraph 37 constitutes conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 38. Denied. The averments of paragraph 38 constitutes conclusions of law to which 36. Plaintiff incorporates by reference paragraphs I through 35 of its Com 1 39. Denied. The averments of paragraph 39 constitutes conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 40. Denied. The averments of paragraph 40 constitutes conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 41. Denied. The avernents of paragraph 41 constitutes conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 42. Denied. The averments of paragraph 42 constitutes conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 43. Denied. The averments of paragraph 43 constitutes conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 44. Denied. The averments of paragraph 44 constitutes conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 45. no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. Denied. The averments of paragraph 45 constitutes conclusions of law to which -2. 46. Denied. The averments of paragraph 46 constitutes conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 47. Denied. The averments of paragraph 47 constitutes conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 48. Denied. The averments of paragraph 48 constitutes conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 49. Denied. It is specifically denied that Defendants rendered all professional services in a reasonable, proper and prudent manner and in accordance with applicable standards of care and the requirements of any contract pursuant to which the services were rendered. To the contrary, the engineering services provided by Defendants in connection with the site plan were negligent and not consistent with the standards applicable to professional engineers in the Commonwealth of Pennsylvania for the following reasons: (a) Defendants failed to undertake an adequate site inspection and survey prior to preparation of the site plan; (b) Defendants failed to note the presence of visible rock outcroppings and formations on the site plan; (c) Defendants located building structures on the site plan without regard to the visible outcroppings of rock which they knew or should have known would interfere with the construction of such building structures on that portion of the property; -3- (d) Defendants failed to advise Plaintiffs of the presence of visible rock outcroppings and formations which would interfere with the proposed placement of building structures on the site plan; and (e) Defendants failed to advise Plaintiffs of the necessity of extraordinary rock removal expenses in order to construct the buildings as shown on the site plan. 50. The averments of paragraph 50 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, Plaintiffs have not failed to mitigate its damages. To the contrary, Plaintiffs mitigated their damages to the extent reasonably practicable. 51. Denied. It is specifically denied that Plaintiffs Senior Cottages of America, LLC, purchased the project site with the intention of constructing at least 120 housing units thereon. To the contrary, Plaintiff, Senior Cottages of America, LLC, purchased the project site with the knowledge that it would be able to buy additional property contiguous with the site in the event that the original site could not accommodate 120 housing units or reduce the number of units. 52. Denied. It is specifically denied that Senior Cottages of America, LLC needed to construct at least 120 housing unit on the project site in order to obtain certain funding for the project. To the contrary, the Pennsylvania Housing Finance Agency furnished Senior Cottages of America, LLC with enough credit to build 120 units. 53. Denied as stated. Plaintiffs made a preliminary analysis of the site, subject to the Defendant engineer's final determination as to whether the site would be adequate to locate 120 -4- units thereon. By way of further answer, Plaintiffs ascertained that contiguous property would be available for purchase if needed to accommodate 120 units. 54. Denied. It is specifically denied that Plaintiff Senior Cottages of America, LLC engaged the services of Pierce Reese, Architects; Frank Reese Architects, and/or Frank L. Reese, AIA ("Senior Cottages of America, LLC's Architect's") to perform certain design professional services in conjunction with the project, including, inter alia, locating the buildings on the project site. To the contrary, Senior Cottages of America, LLC's Architects were hired to provide architectural services. These services did not include locating the buildings on the project site. 55. Denied. It is specifically denied that any damages sustained by Plaintiffs were caused in whole or in part by the acts or failures of Plaintiffs, their agents, employees, officers or agents, and that the Plaintiffs, their agents, employees, officers or agents were under the control of Defendants. To the contrary, all damages sustained by Plaintiff's were caused entirely by the acts or failures of Defendants, their agents, employees, officers or agents. WHEREFORE, Plaintiffs request judgment in their favor and against Defendants, jointly and severally, in the amount of $690,461-62, together with delay damages, costs of this action, and such other remedies as the Court shall deem appropriate. 5- Respectfully submitted, ME}TTTEE, EVANNS & WOODSIDE BY: G' f l u ?E /? Michael D. Reed, Esquire Sup. Ct. I. D. #35193 Elizabeth Goldstein Dixon, Esquire Sup. Ct. I.D. #73779 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 DATED: February 17, 2000 Attorneys for Plaintiffs FES-16-00 15.56 FROM.METTE EVANS WOODSIDE ID.717 236 1616 PAGE 2/2 VERIFICATION I,Roger G.Peterson, hereby affirm that IamManager ofMillenniumProperties, LLC, that I make this Verification on behalf of Millennium Properties, LLC, that I have read the foregoing document and to the extent that it contains facts supplied by me, they are true and correct to the best of my personal knowledge, information and belief, however, to the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this verification. a?Ib?2DO? Date: Ro ger G. eterson CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: David W. Francis, Esquire Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C. 114 N. Second Street Harrisburg, PA 17101 Frank J. Lavery, Jr., Esquire Lavery & Associates, P.C. P. O. Box 1245 Harrisburg, PA 17108-1245 METI'E, EVANS & WOODSIDE BY: 4L ' e_e Michael D. Reed, Esquire Sup. Ct. I. D. #35193 Elizabeth Goldstein Dixon, Esquire Sup. Ct. I.D. #73779 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232.5000 Attorneys for Plaintiffs DATED: February 17, 2000 214210 F I ANTS V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; AND FRANK L. REESE, ALA, ADDITIONAL DEFENDANTS ENTRY OF APPEARANCE DEFEND JURY TRIAL DEMANDED FREDERIC M. FREDERICK AND FREDERICK, SEIBERT & ASSOCIATES, INC . NO. 99-2953 CIVIL TERM NIOR COTTAGES OF AMERICA, LLC, PLAINTIFFS V SENIOR COTTAGES OF IN THE COURT OF COMMON PLEAS SHIPPENSBURG, LTD; MILLENNIUM CUMBERLAND COUNTY, PA PROPERTIES LLC AND SE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Frank Reese Architects and Frank L. Reese, AIA, only, in the above-captioned matter. ?` Date: JILO By: Respectfully submitte , LAVE* OC TES, P.C. Fr nk Lavery, Jr. P. . B x 1245 Har 's urg, PA 171 8-124- (717) 3-6633 Atty I.D. 42370 Attys for Defendants Frank Reese Architects and Frank L. Reese AIA CERTIFICATE OF SERVICE I, Kelly Ann Guyer, an employee of the law firm of Lavery & Associates, P.C., do hereby certify that on this 5 d ?_ day of January, 1999, I served a true and correct copy of the foregoing ENTRY OF APPEARANCE via U.S. First Class mail, postage prepaid, addressed as follows: Michael D. Reed, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0960 David W. Francis, Esquire POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. 114 North Second Street Harrisburg, PA 17101 Pierce Reese Architects 219 Main Street, Suite 400 Minneapolis, MN 55414 Kelpy Ann Guyer ° ._ ?; ? ?; ? ;_ - ?.` J < _ , i I t i ?.b ? ia:: N a = , r . ?tIJ -- : '1[l i, . r'7 -? ?! v U SENIOR COTTAGES OF SHIPPENSBURG, LTD; MILLENNIUM PROPERTIES, LLC; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and FRANK L. REESE, AIA Additional Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Term NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served by entering a written appearance personally, or by an attorney, and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any claim or relief requested by the defendant. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE Court Administrator 4`h Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 HB:38387.13794-01 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presenlan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medic, de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra soya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEME LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Court Administrator 4`h Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By Attomeys for Defendants H0:38387.13794-01 I i POWELL. TRACKMAN, LOGAN, CARRLIi, BOWMAN & LOMBARDO. P.C. DAVID W, FRANCIS, ESQ. ATTORNEY I.D. #53718 114 NORTII SECOND STREET HARRISBURG. PA 17101 (717)238.9300 ?. FAX: (717) 238.9325 ATTORNEYS FOR DEFENDANTS SENIOR COTTAGES OF SHIPPENSBURG, LTD; MILLENNIUM PROPERTIES, LLC; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Term V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; and FRANK L. REESE, AIA Additional Defendants JOINDER COMPLAINT I • Plaintiffs Senior Cottages of Shippensburg, Ltd; Millennium Properties, LLC; and Senior Cottages of America, LLC (collectively "plaintiffs") have instituted a suit against defendants Frederic M. Frederick; and Frederick, Seibert & Associates, Inc. (collectively "defendants") for damages sustained in conjunction with a construction project in Shippensburg, Cumberland County, Pennsylvania. A true and correct copy of the original complaint is attached as exhibit A, and incorporated by reference. HB:3833E.13794-01 2. Defendants have denied any liability to plaintiffs. Attached hereto as exhibit B is a true and correct copy of Defendants Answer to Complaint with New Matter, which is incorporated by reference. 3. Additional defendant Pierce Reese Architects was a Michigan business organization with a principal place of business located at 219 Main Street, Suite 400, Minneapolis, MN 55414. Pierce Reese Architects performed certain design services for plaintiff Senior Cottages of America, LLC ("SCA"), including, inter alia, the original site plan for the project. 4. Additional defendant Frank Reese, Architects is a Michigan business organization with a principal place of business located at 1669 South Highway 100, suite 118, St. Louis Park, MN 55416. Frank Reese, Architects performed certain design services for SCA including, inter alia, determining whether the structures containing the 120 housing units would be constructed, preparation and designation of documents to be included in the contractor's contract. 5. Additional defendant Frank Reese, AIA is the president of Frank Reese, Architects, and personally performed many of the design services described in paragraphs 3 and 4 above (together with Pierce Reese Architects and Frank Reese, Architects as "additional defendants). 6. At all times relevant hereto, the additional defendants had primary responsibility for determining the location of the buildings within the project limits. 7. To the extent plaintiffs have suffered compensable damages because of the placement of the buildings within the project limits, which is denied, then the additional HB:38338.13794-05 2 defendants are solely liable for all of plaintiffs damages or are liable over to defendants by way of contribution and/or full indemnity. 8. To the extend plaintiffs have suffered compensable damages because of the non- disclosure of rock to the contractor, then the additional defendants are solely liable for all of plaintiffs damages or are liable over to defendants by way of contribution and/or full indemnity. WHEREFORE, should judgment be entered against defendants, liability for which is strictly denied, then defendants demand judgment be further entered against the additional defendants by way of contribution and/or indemnity. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By David W. Francis I.D.#53718 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Date: November 24, 1999 HB:36333.13794-01 VERIFICATION I, Frederic M. Frederick, verify that the statements in the attached Joinder Complaint are true and correct, to the best of my knowledge, information and belief, and that this verification is being made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. Frederi M. Frederick Date: ??? • -L- L, ( 9 9 9 HB:38339.13794-01 Exhibit e SENIOR COTTAGES OF SHIPPENSBURG, LTD,; MILLENNIUM PROPERTIES, LLC,; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Term NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013-3387 (717) 240-6200 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notification. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la torte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la torte tomara medidas y puede entrar una orden contra usted sin previo aviso o notification y por cualquier queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013-3387 (717) 240-6200 SENIOR COTTAGES OF SHIPPENSBURG, LTD,; MILLENNIUM PROPERTIES, LLC,; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants IN THE. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Term COMPLAINT 1. Plaintiff, Senior Cottages of Shippensburg, Ltd., is a Pennsylvania limited partnership with its principal place of business at 1660 South Highway, Suite 122, St. Louis Park, Minnesota, 55416. 2. Plaintiff, Millenium Properties, LLC (hereinafter "Millenium") is a limited liability corporation with its principal place of business at 10500 Bren Road East, Suite 200, Minnetonka, Minnesota, 55343. 3. Plaintiff, Senior Cottages of America, LLC, is a limited liability corporation with its principal place of business at 1660 South Highway, Suite 122, St. Louis Park, Minnesota, 55416. 4. With respect to all matters pertinent to this litigation, Plaintiff Millenium is the successor in interest to Plaintiff Senior Cottages of America, LLC, having acquired inter alia, the interests of Senior Cottages of America, LLC in the project in question in this litigation. 5. Defendant Frederic M. Frederick (hereinafter "Frederick") is an adult individual currently residing in the state of Maryland, with a business address at 128 South Potomac Street, Hagerstown, Maryland, 21740. 6. Defendant Frederick, Seibert & Associates, Inc., upon information and belief, is a Maryland corporation, with its principal offices located at 128 South Potomac Street, Hagerstown, Maryland, 21740. 7. Jurisdiction and venue are proper in this Court in that the causes of action set forth herein arise out of a construction project located in Shippensburg, Cumberland County, Pennsylvania, and Defendants provided engineering services in connection with that project. 8. Plaintiffs are the developers and owners of a 120 unit housing development for senior citizens located at 300 Baltimore Street in Shippensburg, Cumberland County, Pennsylvania (hereinafter "the project"). -2- 9. Plaintiff Senior Cottages of America, LLC purchas d Project was to be located in January 1997. V the land on which the . 10. On or about February 4, a letter agreement dated January 30, 1997 which had been drafted by Frederick, Seibert & Associates Inc. and signed by Defendant Frederick, proposing to perform certain engineering services with respect to the project. A t the letter a rue and correct copy of greement is attached hereto as Exhibit "A" and incorporated herein by reference as if fully set forth. 11. The January 30, 1997 letter agreement included WORK" the following services to be performed by Frederick within the "SCOPE OF Inc., inter ells: " ,Seibert & Associates, Design and engineer site plan"; " and "site construction details as needed." site layout and dimensioning plan 12. Pursuant to the letter agreement, Defendants proceeded to perform surveys and inspections of the project site and produced a site plan laying out the proposed locations on the property of the building structures which would contain the 120 housing units and related offices and common areas contemplated for the project. The site plan is not attached to this complaint due to its unwieldy size and -3 1997, Senior Cottages Of America, LLC approved volume. However, both Plaintiffs and Defendants are in possession of copies of the site plan and it is incorporated herein by reference as if fully set forth. 13. At all times pertinent hereto, Plaintiff's relied upon the accuracy of the site plan in making decisions regarding the need or lack thereof to acquire additional properties, formation of construction contracts for the project and the preparation of budgets and financing for the project. 14. During construction of the project it was discovered for the first time by Plaintiffs that the site plan was defective and erroneous in that it called for the placement of building structures on an area of the project site which contained numerous severe outcroppings of rock which subsequently required removal by blasting and other extraordinary means of rock removal not contemplated prior to construction. 15. As a direct and proximate result of the errors and omissions contained on Defendants' site plan, Plaintiffs incurred additional construction costs as follows: Additional rock removal costs - $260 138 70 Additional concrete costs - , . 75 000 00 Additional survey costs - , . 56 000 00 Additional fill materials and related costs - , . 56 298 74 Additional costs to lower inlet and sewer lateral - , . 3 504 18 Increased general condition costs - , . 209 400 00 Escalation of material costs due to delay - , . -.30,120.00 $690,461.62 -4- COUNT I • NEGLIGENCE 16. The averments contained in paragraphs 1 through 15 are incorporated herein by reference as if fully set forth. 17. Upon information and belief, Defendant Frederick is a professional engineer registered and licensed in both the state of Maryland and the Commonwealth of Pennsylvania. 18. As a professional engineer licensed in the Commonwealth of Pennsylvania, Defendant Frederick is obligated to provide engineering services in accordance with the standards and practices of the engineering profession in Pennsylvania. 19. Both Defendants had a duty to Plaintiffs to provide engineering services on the project in question commensurate with the standard of care applicable to professional engineers and engineering firms in Pennsylvania. 20. Upon information and belief, Defendants affixed to the site plan their professional seal certifying that the site plan was prepared in accordance with the standards required of professional engineers in the Commonwealth of Pennsylvania. -5- 21. The engineering services provided by Defendants in connection with the site plan were negligent and not consistent with the standards applicable to professional engineers in the Commonwealth of Pennsylvania for the following reasons: (a) Defendants failed to undertake an adequate site inspection and survey prior to preparation of the site plan; (b) Defendants failed to note the presence of visible rock outcroppings and formations on the site plan; (c) Defendants located building structures on the site plan without regard to the visible outcroppings of rock which they knew or should have known would interfere with the construction of such building structures on that portion of the property; (d) Defendants failed to advise Plaintiffs of the presence of visible rock outcroppings and formations which would interfere with the proposed placement of building structures on the site plan; and (e) Defendants failed to advise Plaintiffs of the necessity of extraordinary rock removal expenses in order to construct the buildings as shown on the site plan. 22. As a direct and proximate result of the professional negligence of Defendants as set forth above, Plaintiffs incurred damages of $690,461.62 as set forth in detail above. 23. Plaintiffs are entitled to delay damages pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure from January 5, 1999, the date the final costs were incurred, through the date of judgment in this matter. -6- WHEREFORE, Plaintiffs request judgment in their favor and against Defendants, jointly and severally, and in the amount of $690,461.62 together with delay damages, the costs of this action and such other remedies as the Court shall deem appropriate. II. BREACH OF IMPLIED WARRANTY 24. The averments contained in paragraphs 1 through 23 above are incorporated herein by reference as if fully set forth. 25. Defendants, in undertaking to provide professional engineering services to Plaintiffs, impliedly warranted that such services would be rendered in accordance with the professional standards required of professional engineers in the Commonwealth of Pennsylvania. 26. Defendants' negligent acts and omissions as set forth above are not in accordance with the professional standards required of professional engineers in the Commonwealth of Pennsylvania and thus constituted breaches of Defendants' implied warranties to Plaintiffs. -7- 27. As a direct and proximate result of Defendants' breaches of implied warranties, Plaintiffs suffered damages in the amount of $690,461.62 as set forth in detail above. WHEREFORE, in the alternative to Count I above, Plaintiff's demand judgment in the amount of $690,461.62, together with pre-judgment and post. judgment interest, the costs of this action and such other remedies as the Court shall deem appropriate. 28. The averments of paragraphs 1 through 27 above are incorporated herein by reference as if fully set forth. 29. Defendants' site plan constituted a representation to Plaintiffs that the building structures shown thereon could be constructed in the locations shown based upon Defendants' visual survey of the site and without unreasonable additional expense for rock excavation. 30. Defendants knew or should have known that the visible rock outcroppings were present on the project site and would unreasonably interfere with the construction of the buildings in the locations shown on the site plan. -8- 31. Defendants' representations as set forth on the site plan were false. 32. Defendants were under a duty to disclose the presence of visible rock outcroppings on the project site to Plaintiffs and failed to do so. 33. The representations on Defendants' site plan and the non-disclosure of information regarding visible rock outcroppings on the project site were made with the intent to induce Plaintiffs' reliance thereon. 34. Plaintiffs justifiably relied upon Defendants' representations and non- disclosures. 35. Plaintiffs suffered damages in the amount of $690,461.62 as set forth above as a direct and proximate result of Defendants' negligent misrepresentations as to the rock outcroppings at the project site. WHEREFORE, in the alternative to Counts I and II above, Plaintiffs request judgment in their favor and against Defendants, jointly and severally, and in the amount of $690,461.62 together with delay damages, the costs of this action and such other remedies as the Court shall deem appropriate. -9- 1. 1 1. DATED: October 25, 1999 Respectfully submitted, METTE, EVANS & WOODSIDE BY: Michael D. Reed, Esquire Sup. Ct. I. D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiffs • FREDERICK jfA •?tIBERT & Esr. ` ASSOCIATES, INC. CIVIL ENGINEERS ¦SURVEYORS,LANDSCAPE ARCHITECTS¦LAND PLANNERS January 30, 1997 Senior Cottages 1660 South Highway 10 Suite 122 Saint Louis Park, Minnesota 55416 Attention: Jim Roberts Re: Senior Cottages / Shippensburg Project / Pennsylvania Dear Mr. Roberts, Attached is the proposal for the complete engineering of the proposed 120 unit Elderly Housing Project to be located along the south side of Baltimore Street in Shippensburg, Pennsylvania. SCOPE OF WORK 3 4. Field topo/base drawing/ 17 acre lot stakeout (Done by other contract) Design and Engineer Site Plan a. Grading b. Stormwater Management C. Storm Drainage d. Utilities Water and Sewer e. Sediment Erosion Control Design for Soil Conservation Service Approval f. Site layout and dimensioning plan 9. Site construction details as needed h. Penn-Dot Highway Entrance Plan i. Mark-up specifications provided by Architect Process site plan through the following agencies for approval a. Pennsylvania Department of Transportation b. Cumberland County Planning Commission C. Cumberland County Soil Conservation Department and NPDES d. Shippensburg Boro Planning and Engineering e. Shippensburg Boro Municipal Authority for water and sewer lines f. Pennsylvania Department of Environmental Protection for Water and Sewer Line Extensions Represent plan at Planning Commission meeting and gain approvals necessary for construction to begin. As built surveys to be done after the completion of the project at clients request. 128 SOUTH POTOMAC STREET, HAGERSTOWN• MARYLAND 21740 10 WEST BALTIMORE STREET, GREENCASTLE, PENNSYLVANIA 17225 (301) 791-3650 FREDERICK (301) 416-7478 PENNSYLVANIA (717) 597.1007 FAX (301) 739•-?_E WORK NOT INCLUDED 1. Providing any geotechnicel engineering or other specialty engineering that may be requested by the agencies. This includes geotechnical engineering for SWM pond if necessary. 2. Perform any traffic analysis or studies. 3. Complete any revisions after final agency approval. 4. Any wetlands delineation. 5• Performing any constntcdon stakeout or inspection service. COMPENSATION AND TERMS Site plan engineering and agency processing As-Built drawings after construction TOTAL This figure includes all work and materials except the cost of advertisement or prints. All permits and filing fees and prints Size of 12[awin 18"x24" 24"x36" 30"x42.^ *CAD plots submittals, $35,000 $38,500 any filing fees, permit fees, bid will be billed at cost. Blue Print cm Mylar Reproduction CAD Plot on* CAD Pl t $2.00 Cm $3 60 !MnS-1U-(;0.nt Bond o lar $2.50 . $7,25 $6.00 $12 00 $7.50 $3.65 $9.25 . 50 $17 $15.00 on translucent bond will be used for roduc P . $21.50 i g prints for interim agen e c r y vrew Amy additional work that may be requested and is not included in the contract will be billed at ou, unit costs or as negotiated by mutual agreement between the firm and the client. We will r'.otify the client and receive approval for all additional work before proceeding. All original plans, plats, descriptions and records are the sole property of the firm. No liability is assumed by Frederick, Seibert and Associates for the accuracy of the data provided by the client or of data obtained or available from public or governmental records or sources in the public domain. Client shall obtain from the owner thereof any and all consents required to reproduce data protected by patent, trademark, service mark, copyright or trade secret, and client indemnifies and holds Frederick, Seibert and Associates harmless from any claims against Frederick, Seibert and Associates for the reproduction of such materials. Frederick, Seibert and Associates makes no representations, warranties or guarantees, expressed or implied, other than the expressed representations contained in this agreement. Liability of Frederick, Seibert and Associates shall be limited to the amount paid by client for the services provided and Frederick, Seibert and Associates obligations hereunder shall not include any liability for special, direct, indirect or co nsequenual damages. ' Tlie undersigned, by the acceptance of this proposal, agrees to pay all attorney's and court costs incurred by Frederick, Seibert and Associates, Inc. if the matter is referred to an attorney to collect all or any portion of the actual fee for services performed. INVOICES METHOD 1. Frederick, Seibert and Associates, Inc. will bill the client monthly on a time and material basis. 2. All payments are due within 30 days from the date of billing. 3. Any invoices still unpaid after 60 days will be subject to a 1 1/2% per month interest rate. 4. We reserve the right to stop work on all projects with an outstanding invoice of more than 90 days. If the above is acceptable to you, please sign at the bottom where indicated. Return one signed set to us for our files. Please call and inform us when we can start the design work. Very truly yours, FREDERICK, SEIBERT/kiQnD ASSOCIATES, INC. Frederic M. rF a erick , RLS, PE President FMF/vab.shippensburg.pro The terms and price above ou ed meet with my and/or our approval and you are hereby authorized to proceed with the work. ,=;) / - ci 2 Date VERIFICATION I, MICHAEL D. REED, ESQUIRE, verify that I am the attorney for Plaintiffs in this action and that Plaintiffs are located outside the jurisdiction of this Court, and their original verification cannot be obtained within the time allowed for the filing of this document. Therefore, based on information received from the aforementioned parties, I hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subjecb? to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. DATE: 41- ZS- 9q MICHAEL D. ED, ESQUIRE CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: David W. Francis, Esquire Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C. 114 N. Second Street Harrisburg, PA 17101 METTE, EVANS & WOODSIDE BY: Michael D. Reed, Esquire Sup. Ct.1. D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 DATED: October 25, 1999 Attorneys for Plaintiff 201778 DAVID POWELL, TRACHTMAN, LOGAN, CARRLE. BOWMAN & LOMBARDO, P.C, W. FRANCIS, ESQ. ATTORNEY I.D. #53718 114 NORTH SECOND STREET HARRISBURG, PA 17101 (717) 238-9300 FAX: (717) 238.9325 ATTORNEYS FOR DEFENDANTS NOTICE TO PLEAD To Plaintiff: You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereo for a default judgment may be entered against you Attorney for Defendant SENIOR COTTAGES OF SHIPPENSBURG, LTD; MILLENNIUM PROPERTIES, LLC; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Tenn V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants DEFENDANTS' ANSWER TO COMPLAINT AND NEW MATTER Answer Defendants Frederic M. Frederick and Frederick, Seibert & Associates, Inc. (together "defendants") hereby respond to the Complaint of Plaintiffs Senior Cottages of Shippensburg, Ltd.; Millennium Properties, LLC; and Senior Cottages of America, LLC. ( together "plaintiffs") as follows: HB:38229.13794-01 I . After reasonable investigation, defendants arc without sufficient information to either admit or deny this averment. Therefore, it is denied, 2. After reasonable investigation, defendants arc without sufficient information to either admit or deny this avemment. Therefore, it is denied. 3. After reasonable investigation, defendants are without sufficient information to either admit or deny this averment. Therefore, it is denied. 4. Denied as a legal conclusion to which no response is required. To the extent a response is required, defendants are without sufficient information to either admit or deny this averment. 5. Denied. Defendant Frederic M. Frederick is an adult individual currently residing in Pennsylvania. 6. Admitted. 7. Admitted. 8. Admitted upon information and belief. 9. After reasonable investigation, defendants are without sufficient information to either admit or deny this averment. Therefore, it is denied. 10. Admitted. 11. Denied as stated. The contract between the parties is a written document which speaks for itself. Accordingly, plaintiffs' mischaracteri2ation of the scope of Frederick, Seibert & Associates, Ine.'s ("FSAI") scope of work is expressly denied. 12. Denied as stated. By way of additional answer, it is admitted that FSAL performed certain survey work in accordance with its contractual obligations. Further, it is HB:36229.13794-01 2 admitted that FSAI prepared certain plans which reflected proposed locations for the building structures which would contain certain housing units and related offices. However, it is denied that FSAI selected the locations for the building structures. The location of the building structures was selected by plaintiff Senior Cottages of America, LLC, ("SCA") and/or its architect. 13. After reasonable investigation, defendants are without sufficient information to either admit or deny this averment. Therefore, it is denied. 14. Categorically denied. To the contrary, it was noted specifically on, inter aiia, the base map that the project limits contained areas of extreme grades and rock. Plaintiff SCA was specifically advised that it could encounter areas of hard rock within the project limits, and of the means and methods which might be required to excavate any such rock. Strict proof of this averment is demanded at trial. 15. It is specifically denied that there are any errors or omissions in the site plan. Defendants are without sufficient information to either confirm or deny the averments with respect to damages. However, strict proof of this averment is demanded at trial. Count I- NeEligence 16. Defendants incorporate the answers to paragraphs 1 through 15 as if fully set forth herein. 17. Admitted. 18. Denied as a conclusion of law to which no response is required. 19. Denied as a conclusion of law to which no response is required. HB:3=9.13M-01 3 20. Admitted in part and denied in part. It is admitted that defendant FSAI affixed its seal to certain documents. However, insofar as plaintiffs have failed to specifically identify which of the construction documents they consider to be the "site plan," defendants are unable to either admit or deny that FSAI's seal was affixed thereto. The remaining averments are denied as conclusions of law to which no response is required. 21. Denied as a conclusion of law to which no response is required. To the extent a response is required, it is admitted that at all times relevant hereto, defendants fully performed their engineering services consistent with standards eligible for professional engineers in the Commonwealth of Pennsylvania. (a) Denied as stated. As an initial matter, the contract did not call for FSAI to perform a "site inspection." By way of additional answer, defendants fully performed their responsibilities under the contract, including examining the project site and noting the existence of rock outcroppings. (b) Categorically denied. Defendants specifically noted the area of extreme grades and rock. (c) Categorically denied. As an initial matter, the location of the building structures was selected by plaintiff SCA and/or its architect. Secondly, FSAI specifically wamed SCA that, because the adjoining subdivision located its storm water management within the project limits, some of the cottages were located in an area where "there would be lots of rock encountered during excavation." SCA was further advised that the only way to avoid this is to eliminate the number of HB:3a229.13794-01 4 proposed cottages on the site. SCA chose to proceed with construction in the area where rock was anticipated rather than eliminate the number of cottages. (d) Specifically denied. Defendants incorporate their answer to paragraphs 21 (b) and (c) above as if fully set forth here. (e) Denied that defendants had any such duty. By way of additional answer, Plaintiffs were fully informed as to the means and methods which may be necessary to remove the anticipated rock. 22. Denied as a conclusion of law to which no response is required. 23. Denied as a conclusion of law to which no response is required. WHEREFORE, Defendants respectfully request judgment in their favor, together with such costs, fees and attorneys fees as this Honorable Court deems appropriate. Count II. Breach of Implied Warranty 24. Defendants incorporate the answers to paragraphs I through 23 as if.fully set forth here. 25. Denied as a conclusion of law to which no response is required. 26. Denied as a conclusion of law to which no response is required. To the extent a response is required, defendants specifically deny any negligent acts or omissions. Defendants incorporate their answers to paragraphs 20 and 21 as if fully set forth here at length. By way of final answer, it is denied that Defendants breached any implied wamantics to plaintiffs. 27. Denied as a conclusion of law to which no response is required. WHEREFORE, Defendants respectfully request judgment in their favor, together with such costs, fees and attorneys fees as this Honorable Court deems appropriate. HB:38229.13794-01 Count III. Negligent Misrepresentation 28. Defendants incorporate the answers to paragraphs I through 27 as if fully set forth herein. 29. Denied as a conclusion of law to which no response is required. To the extent a response is required, defendants specifically informed plaintiffs as to the existence of rock in the areas where certain of the structures were located. Further, plaintiffs were fully informed as to the means and methods of construction which would be required to remove the anticipated rock. 30. Denied as a conclusion of law to which no response is required. To the extent a response is required, Defendants did know about the existence of rock within the project limits and specifically brought this fact to the plaintiffs' attention. Further, it is averred that the placement of buildings in the area of rock was specifically at plaintiffs' request. 31. Denied as a conclusion of law to which no response is required. To the extent a response is required, it is specifically denied that the defendants made any representations that were false. Strict proof of this averment is demanded at trial. 32. Denied as a conclusion of law to which no response is required. To the extent a response is required, defendants specifically identified the existence of extreme grades and rock. 33. Denied. To the contrary, the defendants specifically identified the existence of rock within the project limits, and specifically advised plaintiffs that certain of the structures would be located in an area where rock was anticipated. 34. Denied as a conclusion of law to which no response is required. To the extent a response is required, if plaintiffs truly believed that there was no rock in the area where these HB:38229.13794-01 buildings were constructed, which is denied, plaintiffs did not adequately review the information supplied by, inter alia, FSAI. 35. Denied as a conclusion of law to which no response is required. WHEREFORE, Defendants demand judgment in their favor and against Plaintiffs, together with costs, fees and attorneys' fees as permitted by law. New Matter 36. Defendants incorporate paragraphs 1 through 36 as if fully set forth here at length. 37. Plaintiffs have failed to set forth a claim upon which relief may be granted. 38. The Plaintiffs' complaint fails to set forth a claim upon which relief may be granted. 39. Plaintiffs' claims are barred, in whole or in part, by the applicable statute of limitations. 40. Plaintiffs' claims are barred, in whole or in part, by their assumption of the risk. 41. Plaintiffs' claims are barred, in whole or in part, by their comparative negligence. 42. Plaintiff s claims are barred, in whole or in part, by the doctrine of laches. 43. Plaintiffs' claims are barred, in whole or in part, by principles of estoppel and waiver. 44. Plaintiffs' claims are barred, in whole or in part, by the economic loss doctrine. 45. Plaintiffs' claims are barred, in whole or in part, by the doctrine of accord and satisfaction. 46. Plaintiffs' claims are barred, in whole or in part, by the doctrines of payment and release. HB:3=9.13794-01 7 1. 1 47. Plaintiffs' claims are barred, in whole or in part, by the terms of the written contract between the parties, including by not limited to the limitation on liability clause. 48. Plaintiffs may not set forth claims of negligence, breach of implied warranty or negligent misrepresentation when there exists a written contract between the parties. 49. Defendants rendered all professional services in a reasonable, proper and prudent manner and in accordance with all applicable standards of care and the requirements of any contract pursuant to which the services were rendered. 50. Plaintiffs' damages must be reduced because it failed to mitigate its damages. 51. Plaintiff Senior Cottages of America, LLC purchased the project site with the intention on constructing at least 120 housing units thereon. 52. Upon information and belief, SCA needed to construct at least 120 housing unit on the project site in order to obtain certain finding for the project. 53. Upon information and belief, prior to purchasing the project site, SCA did not perform an analysis or study of the project site to determine the feasibility of constructing 120 housing units thereon. 54. Upon information and belief, Plaintiff SCA engaged the services of Pierce Reese, Architects; Frank Reese Architects, and/or Frank L. Reese, AIA ("SCR's Architects") to perform certain design professional services in conjunction with the project including, inter alia, locating the buildings on the project site. 55. Any damages sustained by plaintiffs, which is denied at the present time, was caused in whole or in part by the acts or failures plaintiffs, their agents, employees, officers or agents, none of which were under the control of defendants. HB:3a229.1379"I WHEREFORE, Defendants demand judgment in their favor and against Plaintiffs, together with costs, fees and attorneys, fees as permitted by law. Date: November 24, 1999 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. B 1 Y David W. Francis I.D. #53718 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 HB:38229.1379"I 9 VERIFICATION 1, Frederic M. Frederick, verify that the statements in the attached Defendants' Answer to Complaint with New Matter are true and correct, to the best of my knowledge, information and belief, and that this verification is being made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. %- Fred enc M. Frederick Date: 0"'• Zt, 19 9 9 HB:38339.13794-01 CERTIFICATE OF SERVICE I, David W. Francis, hereby certify that on November 24, 1999, a true and correct copy of the within Defendants' Answer io Complaint and New Matter was served upon the following person(s) by first class U.S. mail, postage prepaid. Michael D. Reed, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Pierce Reese Architects 219 Main Street, Suite 400 Minneapolis, MN 55414 Frank Reese, Architects 1669 South Highway 100, Suite 118 St. Louis Park, MN 55416 Frank Reese, AIA 1669 South Highway 100, Suite 118 St. Louis Park, MN 55416 David V. Francis 37178) ice, o r7 > r , .= cr _x ri L'i Q c• j a. ? CERTIFICATE OF SERVICE I, David W. Francis, hereby certify that on November 24, 1999, a true and correct copy of the within Joinder Complaint was served upon the following person(s) in the manner indicated: Michael D. Reed, Esq. (via U.S. Mail, postage prepaid) Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Pierce Reese Architects (via Certified Mail, Return Receipt. Requested) 219 Main Street, Suite 400 Minneapolis, MN 55414 Frank Reese, Architects (via Certified Mail, Return Receipt Requested) 1669 South Highway 100, Suite 118 St. Louis Park, MN 55416 Frank Reese, AIA (via Certified Mail, Return Receipt Requested) 1669 South Highway 100, Suite 118 St. Louis Park, MN 55416 Da ' W. Francis 37178.1 i r . . lLl??- C i - U T U C SENIOR COTTAGES OF SHIPPENSBURG, LTD,; MILLENNIUM PROPERTIES, LLC,; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Term NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013-3387 (717) 240-6200 'NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notification. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la torte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la Corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notification y por cualquier queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013-3387 (717) 240-6200 SENIOR COTTAGES OF SHIPPENSBURG, LTD,; MILLENNIUM PROPERTIES, LLC,; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Term COMPLAINT 1. Plaintiff, Senior Cottages of Shippensburg, Ltd., is a Pennsylvania limited partnership with its principal place of business at 1660 South Highway, Suite 122, St. Louis Park, Minnesota, 55416. 2. Plaintiff, Millenium Properties, LLC (hereinafter "Millenium") is a limited liability corporation with its principal place of business at 10500 Bren Road East, Suite 200, Minnetonka, Minnesota, 55343. 3. Plaintiff, Senior Cottages of America, LLC, is a limited liability corporation with its principal place of business at 1660 South Highway, Suite 122, St. Louis Park, Minnesota, 55416. 4. With respect to all matters pertinent to this litigation, Plaintiff Millenium is the successor in interest to Plaintiff Senior Cottages of America, LLC, having acquired inter alig, the interests of Senior Cottages of America, LLC in the project in question in this litigation. 5. Defendant Frederic M. Frederick (hereinafter "Frederick") is an adult individual currently residing in the state of Maryland, with a business address at 128 South Potomac Street, Hagerstown, Maryland, 21740. 6. Defendant Frederick, Seibert & Associates, Inc., upon information and belief, is a Maryland corporation, with its principal offices located at 128 South Potomac Street, Hagerstown, Maryland, 21740. 7. Jurisdiction and venue are proper in this Court in that the causes of action set forth herein arise out of a construction project located in Shippensburg, Cumberland County, Pennsylvania, and Defendants provided engineering services in connection with that project. 8. Plaintiffs are the developers and owners of a 120 unit housing development for senior citizens located at 300 Baltimore Street in Shippensburg, Cumberland County, Pennsylvania (hereinafter "the project"). -2- 9. Plaintiff Senior Cottages of America, LLC purchased the land on which the project was to be located in January 1997. 10. On or about February 4, 1997, Senior Cottages of America, LLC approved a letter agreement dated January 30, 1997 which had been drafted by Frederick, Seibert & Associates, Inc. and signed by Defendant Frederick, proposing to perform certain engineering services with respect to the project. A true and correct copy of the letter agreement is attached hereto as Exhibit "A" and incorporated herein by reference as if fully set forth. 11. The January 30, 1997 letter agreement included within the "SCOPE OF WORK" the following services to be performed by Frederick, Seibert & Associates, Inc., inter alia: "Design and engineer site plan"; "site layout and dimensioning plan"; and "site construction details as needed." 12. Pursuant to the letter agreement, Defendants proceeded to perform surveys and inspections of the project site and produced a site plan laying out the proposed locations on the property of the building structures which would contain the 120 housing units and related offices and common areas contemplated for the project. The site plan is not attached to this complaint due to its unwieldy size and -3- volume. However, both Plaintiffs and Defendants are in possession of copies of the site plan and it is incorporated herein by reference as if fully set forth. 13. At all times pertinent hereto, Plaintiffs relied upon the accuracy of the site plan in making decisions regarding the need or lack thereof to acquire additional properties, formation of construction contracts for the project and the preparation of budgets and financing for the project. 14. During construction of the project it was discovered for the first time by Plaintiffs that the site plan was defective and erroneous in that it called for the placement of building structures on an area of the project site which contained numerous severe outcroppings of rock which subsequently required removal by blasting and other extraordinary means of rock removal not contemplated prior to construction. 15. As a direct and proximate result of the errors and omissions contained on Defendants' site plan, Plaintiffs incurred additional construction costs as follows: Additional rock removal costs - $260,138.70 Additional concrete costs - 75,000.00 Additional survey costs - 56,000.00 Additional fill materials and related costs - 56,298.74 Additional costs to lower inlet and sewer lateral - 3,504.18 Increased general condition costs - 209,400.00 Escalation of material costs due to delay - 30.120.00 $690,461.62 -4- COUNT I - NEGLIGENCE 16. The averments contained in paragraphs 1 through 15 are incorporated herein by reference as if fully set forth. 17. Upon information and belief, Defendant Frederick is a professional engineer registered and licensed in both the state of Maryland and the Commonwealth of Pennsylvania. 18. As a professional engineer licensed in the Commonwealth of Pennsylvania, Defendant Frederick is obligated to provide engineering services in accordance with the standards and practices of the engineering profession in Pennsylvania. 19. Both Defendants had a duty to Plaintiffs to provide engineering services on the project in question commensurate with the standard of care applicable to professional engineers and engineering firms in Pennsylvania. 20. Upon information and belief, Defendants affixed to the site plan their professional seal certifying that the site plan was prepared in accordance with the standards required of professional engineers in the Commonwealth of Pennsylvania. -5. 21. The engineering services provided by Defendants in connection with the site plan were negligent and not consistent with the standards applicable to professional engineers in the Commonwealth of Pennsylvania for the following reasons: (a) Defendants failed to undertake an adequate site inspection and survey prior to preparation of the site plan; (b) Defendants failed to note the presence of visible rock outcroppings and formations on the site plan; (c) Defendants located building structures on the site plan without regard to the visible outcroppings of rock which they knew or should have known would interfere with the construction of such building structures on that portion of the property; (d) Defendants failed to advise Plaintiffs of the presence of visible rock outcroppings and formations which would interfere with the proposed placement of building structures on the site plan; and (e) Defendants failed to advise Plaintiffs of the necessity of extraordinary rock removal expenses in order to construct the buildings as shown on the site plan. 22. As a direct and proximate result of the professional negligence of Defendants as set forth above, Plaintiffs incurred damages of $690,461.62 as set forth in detail above. 23. Plaintiffs are entitled to delay damages pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure from January 5, 1999, the date the final costs were incurred, through the date of judgment in this matter. -6- WHEREFORE, Plaintiffs request judgment in their favor and against Defendants, jointly and severally, and in the amount of $690,461.62 together with delay damages, the costs of this action and such other remedies as the Court shall deem appropriate. II. BREACH OF IMPLIED WARRANTY 24. The averments contained in paragraphs 1 through 23 above are incorporated herein by reference as if fully set forth. 25. Defendants, in undertaking to provide professional engineering services to Plaintiffs, impliedly warranted that such services would be rendered in accordance with the professional standards required of professional engineers in the Commonwealth of Pennsylvania. 26. Defendants' negligent acts and omissions as set forth above are not in accordance with the professional standards required of professional engineers in the Commonwealth of Pennsylvania and thus constituted breaches of Defendants' implied warranties to Plaintiffs. -7- 27. As a direct and proximate result of Defendants' breaches of implied warranties, Plaintiffs suffered damages in the amount of $690,461.62 as set forth in detail above. WHEREFORE, in the alternative to Count I above, Plaintiffs demand judgment in the amount of $690,461.62, together with pre judgment and post. judgment interest, the costs of this action and such other remedies as the Court shall deem appropriate. 28. The averments of paragraphs 1 through 27 above are incorporated herein by reference as if fully set forth. 29. Defendants' site plan constituted a representation to Plaintiffs that the building structures shown thereon could be constructed in the locations shown based upon Defendants' visual survey of the site and without unreasonable additional expense for rock excavation. 30. Defendants knew or should have known that the visible rock outcroppings were present on the project site and would unreasonably interfere with the construction of the buildings in the locations shown on the site plan. _8_ 31. Defendants' representations as set forth on the site plan were false. 32. Defendants were under a duty to disclose the presence of visible rock outcroppings on the project site to Plaintiffs and failed to do so. 33. The representations on Defendants' site plan and the non-disclosure of information regarding visible rock outcroppings on the project site were made with the intent to induce Plaintiffs' reliance thereon. 34. Plaintiffs justifiably relied upon Defendants' representations and non- disclosures. 35. Plaintiffs suffered damages in the amount of $690,461.62 as set forth above as a direct and proximate result of Defendants' negligent misrepresentations as to the rock outcroppings at the project site. WHEREFORE, in the alternative to Counts I and II above, Plaintiffs request judgment in their favor and against Defendants, jointly and severally, and in the amount of $690,461.62 together with delay damages, the costs of this action and such other remedies as the Court shall deem appropriate. -9- Respectfully submitted, METTE, EVANS & WOODSIDE BY: Michael D. Reed, Esquire Sup. Ct. I. D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 DATED: October 25, 1999 Attorneys for Plaintiffs Exhibit A FREDERICK OEIBERT & Esr.1?` ASSOCIATES, INC. CIVIL ENGINEERS •SURVEYORS •LANDSCAPE ARCHITECTS•LAND PLANNERS January 30, 1997 Senior Cottages 1660 South Highway 1@A Suite 122 Saint Louis Park, Minnesota 55416 3 Attention: Jim Roberts Re: Senior Cottages / Shippensburg Project / Pennsylvania I Dear Mr. Roberts, Attached is the proposal for the complete engineering of the proposed 120 unit Elderly Housing Project to be located along the south side of Baltimore Street in Shippensburg, Pennsylvania. SCOPE OF WORK 1. Field topo/base drawing/17 acre lot stakeout (Done by other contract) 2. Design and Engineer Site Plan a. Grading b. Stormwater Management C. Storm Drainage d. Utilities Water and Sewer e. Sediment Erosion Control Design for Soil Conservation Service Approval f. Site layout and dimensioning plot g. Site construction details as needed h. Penn-Dot Highway Entrance Plan i. Mark-up specifications provided by Architect 3. Process site plan through the following agencies for approval a. Pennsylvania Department of Transportation b. Cumberland County Planning Commission C. Cumberland County Soil Conservation Department and NPDES d. Shippensburg Boro Planning and Engineering e. Shippensburg Boro Municipal Authority for water and sewer lines f. Pennsylvania Department of Environmental Protection for Water and Sewer Line Extensions 4. Represent plan at Planning Commission meeting and gain approvals necessary for construction to begin. 5. As built surveys to be done after the completion of the project at clients request. 126 SOUTH POTOMAC STREET, HAGERSTOWN. MARYLAND 21740 10 WEST BALTIMORE STREET. GREENCASTLE. PENNSYLVANIA 17225 (301) 791-3650 FREDERICK (301) 416-7472 PENNSYLVANIA (717) 597-1007 FAX (301) 739.49`6 WORK NOT INCLUDED 1. Providing any geotechnieal engineering or other specialty engineering that may be requested by the agencies. This includes geoteclmical engineering for SWM pond if necessary. 2. Perform any traffic analysis or studies. 3. Complete any revisions after final agency approval 4. Any wetlands delineation. 5. Performing ar,y construction stakeout or inspection service. COMPENSATION AND TERMS Site plan engineering and agency processing $35,000 As-Built drawings after construction $ 3.500 TOTAL $38,500 This figure includes all work and materials except the cost of any filing fees, permit fees, bid advertisement or prints. All permits and filing fees and prints will be billed at cost. Size of Blue Print Mylar Reproduction CAD Plot on* CAD Plot Drawin C!29 cost Translucent Bond Mylar 18"x24" $2.00 $3.60 $6.00 $7.50 24"x36" $2.50 $7.25 $12.00 $15.00 30"x42." $3.65 $9.25 $17.50 $21.50 *CAD plots on translucent bond will be used for producing prints for interim agency review submittals. Am/ additional work that may be requested and is not included in the contract will be billed at ou•; unit costs or as negotiated by mutual agreement between the firm and the client. We will notify the client and receive approval for all additional work before proceeding. All original plans, plats, descriptions and records are the sole property of the firm. No liability is assumed by Frederick, Seibert and Associates for the accuracy of the data provided by the client or of data obtained or available from public or governmental records or sources in the public domain. Client shall obtain from the owner thereof any and all consents required to reproduce data protected by patent, trademark, service mark, copyright or trade secret, and client indemnifies and holds Frederick, Seibert and Associates harmless from any claims against Frederick, Seibert and Associates for the reproduction of such materials. Frederick, Seibert and Associates makes no representations, warranties or guarantees, expressed or implied, other than the expressed representations contained in this agreement. Liability of Frederick, Seibert and Associates shall be limited to the amount paid by client for the services provided and Frederick, Seibert and Associates obligations hereunder shall not include any liability for special, direct, indirect or consequential damages. The undersigned, by the acceptance of this proposal, agrees to pay all attorney's and court costs incurred by Frederick, Seibert and Associates, Inc. if the matter is referred to an attorney to collect all or any portion of the actual fee for services performed. INVOICES METHOD 1. Frederick, Seibert and Associates, Inc. will bill the client monthly on a time and material basis. 2. All payments are due within 30 days from the date of billing. 3. Any invoices still unpaid after 60 days will be subject to a 1 1/29 per month interest rate. 4. We reserve the right to stop work on all projects with an outstanding invoice of more than 90 days. If the above is acceptable to you, please sign at the bottom where indicated. Return one signed set to us for our files. Please call and inform us when we car, start the design work. Very tmly yours, t't? 1?ER CK, SEIBERT AND ASSOCIATES, INC. Frederic M. Fr e erick , RLS, PE President FMF/vab.shippensburg.pro The terns and price above of authorized to proceed with the C, 7 Date ' meet with my and/or our approval and you are hereby v. ?. S:c.q VERIFICATION I, MICHAEL D. REED, ESQUIRE, verify that I am the attorney for Plaintiffs in this action and that Plaintiffs are located outside the jurisdiction of this Court, and their original verification cannot be obtained within the time allowed for the filing of this document. Therefore, based on information received from the aforementioned parties, I hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. DATE: %O-,ZS• 99 MICHAEAR EaD,F,,S'; QU CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: David W. Francis, Esquire Powell, Trachtman, Logan, Carrie, Bowman & Lombardo, P.C. 114 N. Second Street Harrisburg, PA 17101 METTE, EVANS & WOODSIDE 7 BY: 'X Z'?a_ Michael D. Reed, Esquire Sup. Ct. I. D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 DATED: October 25, 1999 Attorneys for Plaintiff 201778 Ci r? :/ t SENIOR COTTAGES OF SHIPPENSBURG, LTD; MILLENNIUM PROPERTIES, LLC; and SENIOR COTTGES OF AMERICA, LLC. Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-2953 Civil Term V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants PRAECIPE FOR RULE TO FILE COMPLAINT PURSUANT TO PA. R. CIV. P. NO. 1037(a) TO THE PROTHONOTARY: Please enter a rule upon plaintiff to file a complaint within twenty days of service thereof or suffer the entry of a judgment of non pros. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMB P.C. By 9D David W. Francis I.D. #53718 114 N. Second Street Harrisburg, PA 17101 (717) 238-9300 Attorney for Defendants RULE AND NOW, this f day of October, 1999, upon praecipe of defendants Frederic M. Frederick and Frederick, Seibert & Associates, a Rule is hereby entered upon the plaintiff to file a complaint within twenty days after service of this rule or suffer the entry of a judgment of not: pros. l_. • t ?t-?C.a1J CurtLong Prothonotary ofC{ m rland County 1 / A r ?"?'? t?..?-? HB:38027.13794-01 1all J41 CERTIFICATE OF SERVICE I, Michael W. Winfield, hereby certify that on October 1, 1999, a true and correct copy of the within Praecipe for Rule to File Complaint Pursuant to Pa.R.Civ.P. No. 1037(a) was served upon the following person(s) by first class U.S. mail, postage prepaid. Michael D. Reed, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Michael W. Winfield 37178.1 u,?. . -- ?I i "? .I ,, ?: ?. (Y R) - ?: ?, ? ? f ? - :: ,_. _ ??? i j ?- Ll. ???_l ??;: _ ? ? ?:? _.. ? (/1 1???... i _`?f I l.i.. U C? -? U Ul U J SENIOR COTTAGES OF SHIPPENSBURG, LTD,; MILLENNIUM PROPERTIES, LLC,; and SENIOR COTTAGES OF AMERICA, LLC. Plaintiffs v FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. r 9. 2 9 S3 ? I ?.. PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a Writ of Summons upon the following Defendants, notifying them that an action has been commenced in Cumberland County, Pennsylvania, which they will be required to defend. 1. Frederic M. Frederick c/o Frederick, Seibert & Associates, Inc. 128 South Potomac Street Hagerstown, MD 21740 2. Frederick, Seibert & Associates, Inc. 128 South Potomac Street Hagerstown, MD 21740 Please return the writs of summons to the undersigned for service. I Respectfully submitted, METTE, EVANS & WOODSIDE BY: ILI Michael D. Reed, Esquire Sup. Ct. I. D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 DATED: May 14, 1999 Attorneys for Plaintiff 164M `'? p ? ? ?? ti b ? 4? 1-?= C7 Lfi j- L." . .. .. _- z <1 , ) i -) !_r C.i ?:I: ? _ -.1 .I >?(._ p i_,V. i ? ? ]: i 7 _.. _ >- :: :. _.?iCi _ ? -? ? v ?? ?? v ?? . Commonwealth of Pennsylvania County of Cumberland Senior Cottages of Shippensburg, Ltd; Millennium Properties, LLC; and Senior Cottages of America, LLC. vs Frederic M. Frederick c/o Frederick, Seibert & Associates, Inc. 128 South Potomac Street Hagerstown, MD. 21740 Frederick, Seibert & Associates, Inc. 128 South Potomac Street Hagerstown, MD, 21740 Court of Common Pleas No. 99 _2953-Civil -Term _______________ 19 Itt Civil-Action-Law ------------------------------------- To _ tPftQri9 M._?ked?rack_ =_EYs?ieriak._Seibert & Associates, Inc. You are hereby notified that Senior Cottages Of Shippensburg, LTD;_Millennium Properties?_LLCi_and Senior Cottages of America, LLC. the Plaintiff ha s commenced an action in --- C1Y_U_J.eb against you which you are required to defend or a default judgment may be entered against you. (SEAL) ?urYi _R_ koo------------------------- Prothonotary Date --- MaY- 1? - ----------- 19_49_ By __ ?d efL?< (4__ n4a's- ---------------- Deputy Qi r 1 E1 i G E?'ll C11 TI z tP b C? p ? a N U U? O a .? N ff11?? r{ N U Lo Lo d O O La 4 41 41 y £ y 0 w m U l O N N r N Q) r4 U) E U) Q O a O Ln rn O N ? $ Y w 80 N a rn C: Ln N O ?Erlam 0 SENIOR COTTAGES OF SHIPPENSBURG, IN THE COURT OF COMMON PLEAS LTD; MILLENNIUM PROPERTIES, LLC; CUMBERLAND COUNTY, PA and SENIOR COTTGES OF AMERICA, LLC. Plaintiffs I No. 99-2953 Civil Tenn V. FREDERIC M. FREDERICK; and FREDERICK, SEIBERT & ASSOCIATES, INC., Defendants PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendants in the above-captioned case. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By David W. Francis I.D.#53718 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Date: June 8, 1999 37177.1 CERTIFICATE OF SERVICE 1, David W. Francis, hereby certify that on June 8, 1999, a true and correct copy of the within Praecipe for Entry of Appearance was served upon the following person(s) by first class U.S. mail, postage prepaid. Michael D. Reed, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 David W. Francis 37178.1 Y ?? ix, u : Z F? -??.? (.?? :F: ??? ? u !1 "- .n ? :y c. ? . ? -,. ?,??? ??- ?, ;?ci ? ;: -? O u U r .- 4 SENIOR COTTAGES OF IN THE COURT OF COMMON PLEAS SHIPPENSBURG, LTD., MILLENNIUM CUMBERLAND COUNTY, PENNSYLVANIA PROPERTIES, LLC, and SENIOR COTTAGES OF AMERICA, LLC, Plaintiffs NO. 99-2953 CIVIL TERM V. FREDERIC M. FREDERICK and FREDERICK, SEIBERT & ASSOCIATES, INC., JURY TRIAL DEMANDED Defendants V. PIERCE REESE, ARCHITECTS; FRANK REESE, ARCHITECTS; AND FRANK L. REESE, ALA, Additional Defendants PRAECIPE FOR DISCONTINUANCE TO THE PROTHONOTARY: Kindly mark the above-captioned matter settled, discontinued and ended with prejudice. Respectfully submitted, /METTE, Ep/VA?NS & WOOD IDE By: Michael D. Reed, Esquire Sup. Ct. I. D. #35193 3401 North Front Street P. 0. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiffs DATE: November b, 2003 w M CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: David W. Francis, Esquire Powell, Trachtman, Logan, Carrie, Bowman & Lombardo 114 North Second Street Harrisburg, PA 17101 Amy. L. Coryer-Host, Esquire Lavery Faherty Young & Patterson, P.C. 225 Market Street, Suite 304 P. 0. Box 1245 Harrisburg, PA 17108-1245 METTE, EVANS & WOODSIDE By: . Y Michael D. Reed, Esquire Sup. Ct. I. D. #35193 3401 North Front Street P. 0. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiffs DATE: November 6, 2003 384148v1 ?? ? _ 7 ?_• r.. C'?: • . _.?; is-) a ... i . 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