HomeMy WebLinkAbout99-05354& 99. -5.3.5-11M 4t7 7:;-
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MECHANIC'S LIEN ; A"a ld W:ba, ";.„ ?l 11h. I,vsM it
CDr101610w.r u".. nos Mmnnv hmnennn.
Pennsylvania
STATF M' IOWA-. Cumberland COUNTV.ssl
I, Iha undersigned Want. (who is b oak k e e pe r _ (of) file Clnhnanl)
being di dy sworn, dnpnsn- and nny INA the following statement Is true to the boM of my kllowladQ4 and belief, and Is
made of my personal knowledge by reasnn of Ilia relationship aforeseld:
That, on the dolits sat forth In Exhibit "A" Ilereof, _ F o o d P l a n t C o n s t -r u c t ion , Inc .
Illrmh M m,, un, N.. a amparllon IuubLlnp nOInIU 0, Ilbo,j
. _, herein referred to P-; the Claimant, furnished material or labor for, or pmlnrmnrl
mbar Llpan, Ihn bullding or land rot Ingnovennant alteration, or repair fhernof, Mtonled upon, or lining Idnntleol with
IhP following describer) rnat POMP in Cuulb.e r 1 a n d r',nunty, tnwa. In-wit,
Pennsylvania
See Attached - Parcel ll 16 0212 003
Thal said ilalns were furnished pursuant to a contract made by the then Owner of naid preminne., and were
furnished by said Claimant who is (1) a contractor tharaundor. [hat sold Items were furnished heginning flip.
(2}asubcontractor-
I 0 t__ day of - - -U_LK_ . 19 S3__._ ,and ending nn thin 319 -t_ day of _.3 u.1 y.. _.. t o 2,2-
all as speciftp.d in said statement or Account Wain attached, marked txhibtt "A" and by this reference nmdn pall
hereof, and at the respective dates, amounts and prices therpin slnlod, which said ancounl is a true and Just
statement for flip same, after allowing all credits and onsets thereon.
that Knauss Foods Cooperative, Incwnalhenand
800 INrP) each_Glen___I,d?v;7le M !1
Rnad
Pea?clen, PA 17375-0001
!nay, rn+nl Ic+r.TnwN
is nnw the ownp.r of ?riirl,real astnte and thnt tern IS now dup. rind owing to the said Claimant flip 01illdpal sum
of $ _. 4.36, 122 .00 __ with interest thereon at 12 % per annum Gem rind nflnt Iha
1 G} day of _Ayqqust , 19 -9.9_ -, for which sum and interest, Ingplher with rnsts as
pfovlde.ff by Inw, Bald Clalaranl asSNlts in Meclianir,'s Lien against said unprovemenl and the above Owwribed
real aarnre upon which the same Is slh.trilrnf
Artingfot Foe Plant Constr
51.11)srrit) d In my presences ana sworn to hotore me by the above name
AT IACI I rXIMIT "A"
See r:r7 a
Accounting Offices, Ltd.
1320 N. le Avenue, Suite C
Yakima, WA 98902
Cary D. Ferguson, CPA Pt-(509) 457.2440
e-mail 0M er @aOl.COm Fax (509) 457.2443
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Exhibit A
AIA Application #19 $270,282.00
Retainage Held 165,840.00
Total Due 436,122.00
Real Property Tax Assessor Record: PA - knouse foods No.I
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Detail Record
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SUMMARY RECORD
Detail Record No. 1
Information America Database: REAL PROPERTY TAX ASSESSOR
Information Current: through
Last Updated: (Updated on a HISTORICAL basis)
Filed:
County:
Assessors Parcel Number:
Assessed Value (Land):
Assesed Value (Buildings):
Assessed Value (Total):
Tax Amount:
Lot Size:
Lot Depth:
Land Use:
Last Sale Book:
Last Sale Page:
Transfer Date:
Mailing Address:
Name:
Name Type:
Cumberland
16 0212 003
$1,600
$11,940
$13,540
$2,318.05
696,960
0.
COMMERCIAL MISC
14C
381
--1996
800 PEACH GLEN-IDAVILLE ROAD
PEACH GLEN PA 17375-0001
KNOUSE FOODS CO-OPERATIVE INC
OWNER
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I of 2 8/31199 9:36 AM
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MCNEES. WALLACE & NURICK
loo PIN[ 51REC1
HARRISDURG PA IJION
iJCT 1 8 ;99y,?, ,
' 1
FOOD PLANT CONSTRUCTION, INC., : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Claimant
V. No. 99-5354 MLD TERM
KNOUSE FOODS COOPERATIVE, INC., MECHANICS LIEN CLAIM
Respondent
RULE TO SHOW CAUSE
AND NOW, this 3?1,z t day of l y r-ek& /, , 1999, upon
consideration of Respondent Knouse Foods Cooperative, Inc. Is
Preliminary Objections to Claimant Food Plant Construction,
Inc.'s Mechanics' Lien Claim, it is hereby ordered that Claimant
Food Plant Construction, Inc. is to show cause why the mechanics'
lien claim should not be stricken and dismissed. This rule is
returnable at a hearing to be held on the ,V,,r4day of
1999, at 3V a+m./p.m. in Courtroom L,
Cumberland County Courthouse, Carlisle, Pennsylvania.
By the Court:
4 4
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OF .)1i41?
99 ncT z I 1i1,! 9: 49
•
CUt'` ' ' ? GGUw'fY
FEN"i? i L`:?JdIA
FOOD PLANT CONSTRUCTION, INC., : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Claimant
V. No. 99-5354 MLD TERM
KNOUSE FOODS COOPERATIVE, INC., MECHANICS LIEN CLAIM
Respondent
RESPONDENT'S PRELIMINARY OBJECTIONS
TO MECHANICS' LIEN CLAIM
AND NOW COMES, Respondent Knouse Foods Cooperative, Inc.
(hereinafter "Knouse") by and through its attorneys, McNees,
Wallace and Nurick, and makes the following preliminary
objections to Claimant Food Plant Construction, Inc. Is
(hereinafter "Food Plant") mechanics, lien claim in accordance
with 49 P.S. §1505.
FACTUAL BACKGROUND
1. Food Plant filed a mechanics, lien claim in this Court
on September 1, 1999 against property owned by Knouse located in
Cumberland County, Pennsylvania. In its claim, Food Plant
alleges that Knouse owes it $436,122. Food Plant claims that it
furnished material or labor for the construction of an
improvement situated in Cumberland County, Pennsylvania. Food
Plant identifies the parcel by attaching a document printed from
the Internet World Wide Web site of KnowX.com. The printout
references a property owned by Knouse in Cumberland County which
is identified by assessor's parcel number 16 0212 003.
2. Attached to Food Plant's mechanics' lien claim is the
first page of Application and Certificate for Payment No. 19
dated August 19, 1999. The Application for Payment references a
contract dated August 28, 1998 for construction of a controlled
atmosphere storage facility to be located in Peach Glen, Adams
County, Pennsylvania, 17375. The original guaranteed maximum
price of the contract is $8,028,437.
PRELIMINARY OBJECTION ON THE BASIS THAT
THE PROPERTY IS EXEMPT OR IMMUNE FROM LIEN
3. The Mechanics' Lien Law of 1963 provides at 49 P.S.
§1505 that: "Any party may preliminarily object to a claim upon
a showing of exemption or immunity of the property from lien, or
for lack of conformity with this act."
4. On July 6, 1998, Food Plant and Knouse entered into a
Stipulation Against Liens agreement (hereinafter "Stipulation").
A copy of the Stipulation is attached hereto as Exhibit "A". The
Stipulation was filed in Court of Common Pleas for Adams County,
which is where the property upon which the work was to be
performed is located.
5. The Stipulation provides in part that:
The undersigned contractor ... known as FOOD PLANT
CONSTRUCTION, INC. ... for itself and any subcontractors,
materialmen, laborers or anyone else acting through or under
it, covenants and agrees that no mechanics or materialmen's
liens or claims shall be filed or maintained by it, them or
any of them, against the real estate described in Schedule
"A", attached hereto and made a part hereof, or against any
2
buildings or other improvements thereon (jointly and
IfI severally, the "Real Estate"), for or on account of any work
to be done or materials furnished under the principal
contract between Owner and Contractor, dated July 6, 1998,
or under any supplemental contract, verbal or written, or
contract for extra work or materials relating to and work to
be done or material furnished under said principal contract.
The undersigned, for itself, its subcontractors,
materialmen, laborers and anyone else acting or claiming
through or under it, hereby waives and relinquishes all
right to file a mechanics' lien, claim or notice of
intention to file any lien or claim against the Real Estate.
6. The Mechanics' Lien Act of 1963 provides at 49 P.S.
§1401 that: "A contractor or subcontractor may waive his right
to file a claim by a written instrument signed by him or by any
conduct which operates equitably to estop the contractor or
subcontractor from filing a claim."
7. The Stipulation signed by Food Plant waived its right
to file a mechanics' lien claim against the property owned by
Knouse upon which the work was performed.
8. A mechanics' lien can only be filed against property
upon which the improvement was constructed. A contractor cannot
file a mechanics' lien against property of the owner which is
unrelated to the construction project. Food Plant it attempting
to avoid the Stipulation by filing a mechanics' lien claim
against property owned by Knouse which had nothing to do with the
parties' construction contract and is not even in the same county
as the Real Estate upon which the improvement was constructed.
WHEREFORE, Respondent Knouse Foods' Cooperative, Inc.
respectfully requests that the Court strike the mechanics' lien
claim filed by Claimant Food Plant Construction, Inc.
3
PRELIMINARY OBJECTION ON THE BASIS THAT THE
MECHANICS' LIEN CLAIM FAILS TO CONFORM WITH THE ACT
9. The Mechanics' Lien Law of 1963 sets forth at 49 P.S.
§1503 the information which must be contained in the mechanics'
lien claim. Food Plant has failed to comply with a number of the
requirements of the Act. Section 1503(5) provides that: "if
filed by a contractor under a contract or contracts for an agreed
sum, an identification of the contract and a general statement of
the kind and character of the labor and materials furnished."
Food Plant attached to its mechanics' lien claim the first page
of Application for Payment No. 19 which provides that the
original guaranteed maximum price was $8,028,437 pursuant to a
contract dated August 28, 1998. Food Plant did not provide any
detailed statement of the kind and character of the labor and
materials furnished in the body of its mechanics' lien claim.
10. Section 1503(8) provides that the claim must include:
"Such description of the improvement and of the property claimed
to be subject to the lien as may be reasonably necessary to
identify them." The only description Food Plant provides of the
property is a reference to a printout from the Internet World
Wide Web site of KnowX.com, which identifies an assessor's parcel
number for land owned by Knouse in Cumberland County,
Pennsylvania. The description of the property contained in the
mechanics' lien claim is in direct conflict with the Application
for Payment attached to the claim which identifies the project as
located in Peach Glen, Adams County, Pennsylvania.
4
11. Food Plant is attempting to avoid the Stipulation filed
in Adams County by asserting a lien in Cumberland County against
property owned by Knouse which is totally unrelated to the
parties' construction project. The Mechanics' Lien Act only
permits a claim to be filed against the property and improvement
upon which the contractor worked, not any property or improvement
of the owner regardless of where located. Food Plant did not
perform any work for Knouse on property located in Cumberland
County, and its description of the improvement upon which it
performed work as being located in Cumberland County is false.
WHEREFORE, Respondent Knouse Foods' Cooperative, Inc.
respectfully requests that the Court strike the mechanics' lien
claim filed by Claimant Food Plant Construction, Inc.
PRELIMINARY OBJECTION FOR FAILURE TO SERVE
WRITTEN NOTICE OF THE FI 1NG OF THE LIEN UPON THE QM R
12. The Mechanics' Lien Act of 1963 provides at 49 P.S.
§1502 that in order to perfect a lien, every claimant must: "(2)
serve written notice of such filing upon the owner within one (1)
month after filing, giving the court term and number and date of
filing of the claim. An affidavit of service of notice or an
acceptance of service, shall be filed within twenty (20) days
after service setting forth the date and manner of service.
Failure to serve such notice or to file the affidavit or
acceptance of service within the time specified shall be
sufficient grounds for striking off the claim."
5
13. Food Plant filed the mechanics, lien claim on September
1, 1999, and as such, it was required to serve notice of the
filing by October 1, 1999. Food Plant failed to serve written
notice of the filing of the mechanics, lien claim by October 1,
1999, and as of the filing of these preliminary objections, still
has not served Knouse with written notice of the filing of the
mechanics' lien claim. Knouse only learned that a mechanics,
lien claim had been filed in Cumberland County when it was
reported in the September 24, 1999 issue of the Central Penn
Business Journal.
WHEREFORE, Respondent Knouse Foods, Cooperative, Inc.
respectfully requests that the Court strike the mechanics, lien
claim filed by Claimant Food Plant Construction, Inc.
Respectfully submitted,
MCNEES, WALLACE & NURICK
/ Jonathan H. Rudd, Esq.
Attorney I.D. No. 56880
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 237-5405
Attorneys for Respondent
Knouse Foods Cooperative, Inc.
Date: `0(q r C1
6
e
Exhibit A
i'
OFFICIAL PATRICIA A. FUNT
RECEIPT PROTHONOTARY
ADAMS COUNTY COURT HOUSE
ROOM 104
Gettysburg, PA. 17325
RECEIPT
a -, -- NO.
c,-
DOCUMENT NO. DATE -
RECEIVED FROM - -
REMARKS
REFERENCE NO. DESCRIPTION AMOUNT
i