HomeMy WebLinkAbout99-06179Ll
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LAItI U T. IIOFFIIIAN, III IN'1'HE COURT 01; COMMON PLEAS
1'buhrlill' CUMBERLAND COUNTN',
PENNSYLVANIA
V. CIVIL ACTION - LAW
PYRAMIDCONSTRUCI'ION NO. ?q. 4,1'j9 ante. 7..
SERVICES, INC.
Defendant JURY TRIAL DEMANDED
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims
set forth against you in the following pages, you must lake action within twenty (20) days aller
tills 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 is you fail to do so, the case nnay proceed without you and a
default judgment may be entered against you by the Court without Ihrther notice for any
money clahned in the Compliant or fur ally other claim or relief requested by the Defendants.
You may lose money or property or other right important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE.
IF YOU DO NOT HAVE A LAWYER Olt CANNOTAFFORD ONE,
GO TO OR TELEPRONE THIS OFFICE SET FORT'll BELOW TO
FIND OUT WHERE YOU CAN CET LEGAL HELP.
Court Administrator
Fourth Floor
Cumberland County Cumt Ilouse
Carlisle, Peiinsyivania 17013
(717) 2,10-6200
LARUE'L HOFFMAN, III IN THE COURT OF COMMON PLEAS
1'IainlilT CUMBERLAND COUN'T'Y,
PENNSYLVANIA
V. CIVIL ACTION - LAW
13VIIAMID CONSTRUCTION NO.
SERVICES, INC.
Defendant JURY TRIAL DEMANDED
USTED HA SIDO DEMANDADO EN LA COURE. Si usted desea derenderse de las
quejas eXpuestas en las paginas siguie"tes, dcbe tonrar accion dentro do veintc (20) Bias a
partir de la fecha on quo recibio la demanda y cl aviso. Usted dcbe presentar comparecencia
escrila on persona o par abogado y presentar on la Corte par escrito sus derensas o sus
objeciones a [as dcmandas on su contra.
Se la avisa quo si no so dcfieude, el case pucdc proceder sin usted y la Corte puede dccidir en
su contra sin mas aviso o nolilicacion par cualquier dinero reclamado on la demanda o par
cualquier olra queja o compensacio reclamados par el Denrandante. USTED PUEDE.
PERDER DINE'RO, 0 PROPIEDADES U OTROS DERECIIOS IMPORTANTCS PARA
USTED.
LLEVE ESTA DEMANDA A UN ADOGADO INMEDIATAMENTE, SI USTED
NO TIENE 0 NO CONOCE UN ADOGADO, VAYA O LLAME A LA OFICINA
EN LA DWXCCION ESCRITA ADAJO PARA AVERIGUAR DONDE PUDED
ODTENER ASISTENCIA LEGAL.
Court Administrator
Fourth Floor
Cumberland County Court House
Carlisle, Pennsylvania 17013
(717) 240-6200
LARUE T. HOFFMAN, 111 IN THE COURT OF COMMON PLEAS
1'Ininti(1 CUMBERLAND COUNTY,
PENNSYLVANIA
V. CIVIL ACTION - LAW
PYRAMID CONSTRUCTION NO. 4'I? • G 179 eciri l T.?
SERVICES, INC.
Defendant JURY TRIAL DEMANDED
COMPLAINT
1. Plaintiff, Larue T. Hoffman is a painting subcontractor with a place of business located at 86
Sedgewick Drive, East Berlin, Pennsylvania.
2. Defendant Pyramid Construction Services, Inc., a corporation organized and existing under the
laws of the State of Pennsylvania, and duly registered to do business in the Commonwealth of
Pennsylvania in accordance with the Act of Assembly so providing, is a general building
contractor with its principal place of business in Pennsylvania located at 4425 Valley Road,
Enola, Pennsylvania.
3. On June 16th, 1998, plaintiff and defendant entered into a written contract for the interior
painting required on the "Outlook Pointe"building project, a commercial building project
regarding which defendant was the general contractor and situate at 129 Walnut Bottom Road,
Shippensburg, Pennsylvania. A true and correct copy of the subcontract agreement is attached
hereto, made a part hereof, and marked as Exhibit "A."
4. Article 3 of the subcontract agreement makes time of the essence.
5. On or about August 131h, 1998 plaintiffwas instructed by defendant to begin performance of
the subcontract on October ISth, 1998, and accordingly plaintiff arranged his job schedule, his
employees job schedule, and arranged for materials necessary for said start date.
6. Plaintiff through no fault of his own but rather do entirely to time overruns with respect to
other areas of the construction project within the control and responsibility of defendant was
prevented by defendant from starting performance under the contract on the originally scheduled
date of October I Sth, 1998.
7. Plaintiff was unable at that time to schedule other work to replace the anticipated work on the
subcontract hereunder and thus lost opportunities and profits.
8. On or about January 7th, 1999 plaintiff received amended instructions from defendant
delaying the start date of performance of the subcontract until January 201h, 1999, and for a
second time plaintiff arranged his job schedule, his employees job schedule, and arranged for
materials necessary for said start date.
9. Plaintiff through no fault of his own but rather do entirely to time overruns with respect to
other areas of the construction project within the control and responsibility of defendant was
prevented by defendant from starting performance under the contract on the re-schcdulcd date of
January 20th, 1999.
10. Plaintiff was unable at that time to schedule other work to replace the anticipated work on
the subcontract hereunder and thus lost opportunities and profits.
11. On or about January 20th, 1999 plaintiff received further amended instructions from
defendant delaying for the third time start date of performance of the subcontract until January
27th, 1999, and for a third time plaintiffarrangcd hisjob schedule, his employees job schedule,
and arranged for materials necessary for said start date.
12. Plaintiff through no fault of his own but rather do entirely to time overruns with respect to
other areas of the construction project within the control and responsibility of defendant was
prevented by defendant from starting performance under the contract on the rc-schcdulcd date of
January 27th, 1999.
13. On or about January 28th. 1999 plaintiff was finally permitted by dclcndant to begin
performance of the subcontract.
14. Upon the commencement of performance of the subcontract, plaintiff discovered that
conditions, which were in no way caused by the acts or conduct of the plaintiff but rather were
under the control and responsibility of the defendant, caused further substantial delay in
plaintiffs ability to perform in a timely manner under the terms of his subcontract, including:
a). Lack of proper healing in the building;
b). Lack of proper power supply in the building;
c). Lack of systematic installation of dry wall in continuous area so as to allow the
orderly progression of the paint application;
d). Substandard drywall installation;
15. Said deficiencies were caused by the inexperience and inef!ectiveness of the site
management and general management of the project which were delendants responsibilities and
in no way caused by the acts or conduct of plaintiff.
16. The derelictions of the site manager in the lack of coordination of the tradesmen and
subcontractors and failure to provide adequate work conditions required plaintiff to perform
additional tasks normally the responsibility of the site superintendent of coordinating the
schedules and job completion segments of the other tradesmen and subcontractors, primarily the
dry wallers.
17. Nevertheless, in accordance with the contract, plaintiff was performing all work in a quality
and workmanlike manner and providing all material necessary for the completion of his
responsibilities under the subcontract up to and including February 23rd, 1999, at which time the
subcontractor agreement was terminated by defendant.
19. After termination, James Miller, an employee of defendant in the capacity of superintendent
on site agreed to buy from plaintiff 7 gallons of acrylic paint which plaintiff had on the job site at
the agreed upon price of $170.00.
19. James Miller took delivery of said paint, and notwithstanding repeated requests from
plaintiff to remit the purchase price, has refused and continues to refuse to remit payment for said
paint.
20. Defendant has failed and refused to pay to plaintiff any amount under the subcontract
agreement including the original contract price in the amount of $40,955.00, and subsequent
change orders bringing the total contract price to the amount of $45,360.00 although plaintiff has
demanded payment of the same.
21. Plaintiff has repeatedly demanded payment of the amount due, but defendant has wholly
neglected and refused to pay the same or any part thereof.
22. Defendant's breach of contract and non payment for the work done and lost profits for being
prevented from completion of the work has caused plaintiff damages beyond the contract price in
that plaintiff has been unable to pay his suppliers for the materials purchased by plaintil7' for use
on the job, and has been forced to hire counsel to represent him in litigation brought by said
suppliers for non-payment, and forced to acquire new suppliers of said material all at plaintiffs
great embarrassment and economic damage.
COUNT I - BREACH OI' SUBCONTRACTOR AGREEMENT
23. Paragraphs I - 22 are incorporated herein by reference as if fully set forth.
24. Defendant's termination of the contract constitutes a breach and has caused great damage to
plaintiff by reason of the loss of profits plaintiff would have made if the contract had been fully
performed.
WHEREFORE, plaintiff demands judgment against defendant for a sum in excess of $3,000
with costs and interest.
COUNTII - BREAC11 OF CONT'RAC'T' FOR SALT: OF FAIN'T'
25. Paragraphs I - 22 are incorporated herein by reference as if fully set forth.
26. Defendant's failure to remit payment for the paint purchased after termination constitutes a
breach of contract causing plaintiff the loss of the purchase price.
WIiEREFORE, plaintiff demands judgment against defendant for u sum of $170.00 with costs
and interest.
COUNT III - QUANTUM MERUIT
27. Plaintiff incorporates herein by reference the allegations set forth in paragraphs I through 26
as though the same were fully set forth herein at length.
28. Between the commencement of performance under the subcontractor agreement and the early
termination of same, plaintiff perfar med certain work and services for defendant, consisting of
painting and the supplying of paint materials necessary to perform under the subcontractor
agreement, at the specific rcgnest of defendant, for which work, labor and services defendant
promised to pay plaintiff.
29. The work, labor and services performed by plaintiff on defendant's behalf have a reasonable
value of $ 27,450.
30. Defendant has failed to pay plaintiff for the work, labor and services performed by plaintiff.
31. As a result of defendant's refusal to make full payment to plaintill'of the reasonable value of
plaintiffs work, labor and services, plaintiff has suffered serious and continuing injury, including
but not limited to loss of the value of time and cfTort expended on defendant's behalf.
32. As a result of defendant's refusal to make full payment to plaintill'ofthe reasonable value of
plaintiffs work, labor and services. defendant has been unjustly enriched at the expense of
plaintiff.
WHEREFORE, plaintilTdcmands that this Court coterjudgment in its favor and against defendant
in the amount in excess of 530,000 together with costs, interest and attorneys' fees.
f/3t q9
David J. Lenox, Esqu' r /
Attorney for PlaintifT
Attorney I. D, 29078
One S. Baltimore Street
Dillsburg, PA 17019
(717) 432-9666
5
LARUE T. HOFFMAN, Ili
Plaintiff
V.
PYRAMID CONSTURCTION
SERVICES, INC.
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO.
VERIFICATION
I, LARUE T. HOFFMAN, III, depose and say subject to the penalties of 18 PA. C.S.
Section 4904 relating to unswom falsifications to authorities that the facts set forth in the
foregoing Complaint are true and correct of my inform be ' .
9 L RUC T. 4OFFMAN,III
6
SUBCONTRACT AGREEMENT
PYRAMID CONSTRUCTION SERVICES, INC. Agreement No. 0071.08
4417 Valley Road Project No. 1.042.0031
P. O. Box 249 Code 09A•090
Enola, PA 17025 Category Sub
AGREEMENT made as of the 16th day of June, 1998 between the Contractor:
PYRAMID CONSTRUCTION SERVICES, INC. (1'.C.S.1.) and
The Subcontractor: LII PAINTING, 52 Carrol Dr., Dlilsburg, PA 17019
The Project: Outlook Pointe L Shippensburg, 129 Walnut Bottom Road, Shippensburg, PA
The Owner: BCC Development and Management Company, 5021 Louise Dr., Mechanicsburg, PA 17055
The Architect: Charles D. Foster, Architect, P.A., 4500 Burrow Drive, North Little Rock, AR 72117
The Contractor and Subcontractor agree as set forth below, intending to be legally bound hereby:
ARTICLE I. THE CONTRACT DOCUMENTS. The Contract Documents for this Subcontract consist of this
Agreement and any Exhibits attached hereto, the Agreement between the Owner and the Contractor dated March 24. 1998 . (the
"Principal Contract"), the Conditions of the Contract between the Owner and Contractor (General, Supplementary and other
Conditions), the Drawings, the Specifications, all Addenda issued prior to and all Modifications issued after execution of the
Agreement between the Owner and Contractor and agreed upon by the parties to this Subcontract. The Principal Contract, less
financial information, can be reviewed by the Subcontractor at die Contractor's principal place of business during normal business
hours. The Contract Documents include those documents Identified on Exhibit A hereto and are incorporated herein by reference
as though set forth at length. In the event of any conflict between the provisions of the Subcontract and any other Contract
Document, the provisions of this Subconlnict shall govem.
ARTICLE 2. THE WORK. The Subcontractor hereby covenants and agrees to perform In accordance with the terms
mid conditions of the Principal Contract, to the approval and acceptance without condition of the Owner and the Contractor, that
portion of the work of the Principal Contract as set forth in Exhibit D. All work covered by this Subcontract shall be perfarined in
a skillful and workmanlike manner with material, equipment, etc. being both new and of the best kind and grade for the purpose
intended.
ARTICLE 3. TIME OF COMMENCEMENT AND SUBSTANTIAL COMPLETION. The Subcontractor shall
commence and complete work and deliveries of materials at the times required by the Contractor, TIME BEING OF THE
ESSENCE of this Subcontract.
ARTICLE 4. THE CONTRACT SUM. The Contractor shall pay the Subcontractor in current funds for the
performance of the Work, subject to additions and deductions by Change Order, the total sum of FORTY THOUSAND NINE
HUNDRED FIFTY FIVE DOLLARS (S40,955.00), which sum includes Pennsylvania Sales Tax. The Contract Sum shall be
paid in the manner set forth in Article 6 hereof.
ARTICLE 5. SPECIAL CONTRACT CONDITIONS. In addition to the foregoing provisions, tie parties also agree
to the Special Conditions pages 2 and 3 of this document.
THIS AGREEMENT entered into as of the day and year first written above.
SUBCONTRACTOR:
L H PAINTING i
By: /
Attest:
CONTRACTOR:
PYRAMID CONSTRUCTIUN SERVICES INC.
By:
1a s F. Reed, Vice Pres., Estimating & Purchasing
? -
Attest
Dorothy I. Baddrf, Asst. Secrets
SPECIAL CONTRACT CONDITIONS
ARTICLE 6 . PAYMENTS. lie Contractor shall pay the Subcontractor monthly progress payments upon written application on
forms approved by Contractor, staling he estimated percentage of One Work in this Subcontract tins been satisfactorily completed. which shall be
ithh
's w
submitted
an amount necessary ttotfully°protecttanon or d I sureeit%lie selff against any actual or potential rliability or damage°directly relat ng°toinhis Subcontract or the
Subcontractor's breach or threatened beach of any other contract.
Within days following Issuance of the Architect and/or Owner's representative of the Certificate for Payment. the Contractor shat
make payment to the Subcontractor of the portion of he Contract Suni attributable to line substantially completed Work less permitted retalnaga
and any portion of the funds for the Subcontractor's Work withheld in accordance with the Certificate to cover costs of Items to be completed or
corrected by the Subcontractor. The Contractor's withholding of omncy shall be interest free.
Final payment shall be due when the Work described in this Subcontract is fully completed and performed in accordance with he
Contract Documents and is to lite Architect performance of his Subcontracttby he Subcontractor. either inh° a or in part. andtic) payment shall be construed as acceptance of defective or
Incomplete work, and the Subcontractor shall remain liable for its perfomnaee being In strict compliance with this Subcontract and the Principal
Contract.
Receipt of payment by the Contractor from the Owner, and Subcontractor has provided Waiver de Release (see Exhibit F) shall be
conditions precedent to the right of the Subcontractor to receive payment unless lie failure to have received payment shall be solely caused by
the fault of the Contractor.
Receipt of payment from the Owner by the Contractor for extra work, damages for delay (If applicable) or for any other such claim costs. damages or claims.
strati be o N piaymnt for storedtmaterials shall be made, un le srp for written consent for such payment has/ been given by the Contractor alter
receipt of Subcontractor's written request therefor and the subcontractor has provided the proper insurance.
ARTICLE 7. CHANCES IN THE WORK. The Contractor, at any time during the progress of this Work may make any additions
this
thout
fair and reason bletvalue of he some nas
shall the rawings; or
omisson ofsanylorthe Work then In that eventIn,vthalidating
to,
agreemen alterations`, or deviations deviations
determined by Architect no additional %vork shall be shallcob f de ed an extra unless the (same shall be done n a pursuance of a written orde or r signed by heiC ntrn ctor.tThere
shall be no other monetary or time allowance. direct or indirect, to the Subcontractor other than %lint Is specifically written In he Change Order,
Including, but not limited to delays, suspensions, escalation. Impact or other cost factors.
Change Orders are subject to line terms of these Articles and all other Contract Documents. Unless otherwise agreed. If Subcontractor
pctforms extra wo ek other than overtime work ordered by th Insurance Contractor. it shat lireceive the actual cost crialss labor and Jas he actual price paid
overhead, plus _ If for profit, plus actual cast of applicable
age d pon°mark-up overhead.
for
plus sales tax. If applicable; plus freight, If applicable. All other costs
s rOAll thetrl costs for labor to be Included in theupon
plus
ri defined as swages actually paid.
The actual cost of labor
to the Subcontractor only for Should the actual premium portion of the labor cost of said overtime work plus
overhead. payroll a will be mode ivIII be Invoice at
the Subcontractor, payment
he taxes and Insprances applicable only to the actual premium portion of the labor cost. ye to cover handling aid f
ur by
Subc Any extra or or overtime war payment performed °nado of hthe e Subcontractor forltheecost of such extra svork.tplush? t brans cits over handling
above. In the case of extra work, p y
chugs. In the acme of ovcrthne work, payment will be made to the Subcontractor for the exact cost of such overtime work performed by Others.
ARTICLE 8. NO ASSIGNMENT. 'fie Subcontractor shall not assign this Subcontract without prior written consent of the
Contractor, nor subcontract the whole or a portion of this Subcontract without prior written notice to he Contractor. Any assignment or attempt
to assign any monies due or which may become due to he Subcontractor hereunder shall be void and of no force or effect unless prior thereto he
Subcontractor shall have obtained the wrillen consent of the Owner.
ARTICLES. INSURANCE. Before commencing the work, (1) Cite Subcontractor shall supply all applicable insurances as
required by he specifications and conditions. In addition, if the types and limits as shown in Exhibit "E" are more stringent. they shall be rovide
thirty cancelllmlonr thSubcont actor shall nano Contractor tas tan radditioral insured. If the S bcontractor shall fail to deliverpsuch ccrti0cets,ethe
hereunderl by Subcontractor. If any the term
any reasonbe policy for cancelled. the rovidt:
such insurance coverage agreed to charge be provided thereof
Contractor he obtain
to provide
Subcontr
and u
wl hinn five (S) days of the giving of notice theteof bysho Clite Contractor to ontractor, hen the Cuntro for may provide theeforamidtchaargrtl a cost to the
Subcontractor.
performed y
ARTICLE 10. LAWS, REGULATIONS. ETC. All work, labor, services and materials to be famished, supplied or peany
the Subcontractor must strictly comply with all Federal. State. Local. Municipal. as well as any and all other governing jurisdictions'
authorities' Laws. Rules. Regulations, Statutes, Ordinances. and Directlwes (hrcinaller "Lawn'). All work. , labor. , services, or materials In
lab er
addition to that specifically required by this Contract, but necessary to fully comply with said Laws, will be furnished by the Subcontractoras
pan of this contract and without any additional compensation. The Subcontractor shall secure and pay fur all permits and governmental fees,
licenses and inspections necessary for he proper execution and csmnpletiun of the Subcontractors Work, unless specifically stated otherwise in
the Contract Documents.
p)amld Construction Servics. Inc.
L I I Painting
ARTICLE 11. hiECIIANICS' LIENS, The Subcontractor I'or itself, its subcontractors, suppliers, materialmen and employees,
wnhes. releases and relinquishes all rights to file any Notice of Intent. Notice of Lien, Mechanics' Lien or any other encumbrance against the
Contractor. Surely. Owner, Project, or any ninnies earned by the Contractor. 1'he filing or affectuating of such encumbrance shall constitute a
material breach of the Subcontract. In the event, that such an encumbrance is Illed, the Subcontractor will, within five (3) days after request by
either the Owner or Contractor and at the Subcontractor's expense, have such Ilen or encumbrance discharged by payment, release, filing era
bond, or other mrthod approved by Contractor. Subcontractor I'or itself and 1'or anyone else acting under or through it hereby irrevocably
authorizes And empowers any attorney or any coup of competent jurisdiction to appear as attorney for it. them or any of them in my such court
and. (1) in its or their music or names. mark satisfied of record at the cuss and expense of Subcontractor or of them, any and all claims or liens; or
(2) caused to be filed any pleading or instrument. tine Subcontractor shall he responsible and Ilable rural I damages And expenses, including bond
premiums, attomeys' fees, etc. to discharge and/or defend against same. Tlie existence of any encumbrance shall preclude the Subcontractor's
right to receive payment until such encumbrance has been satisfied and removed.
ARTICLE 12. WARRANTY. The Subcontractor, in addition to all other guarantees and worrantics contained in this Subcontract and
the Principal Contract and not in limitation of the Contractor's other legal rights, wartants and guarantees that its work is In strict and absolute
accord with the Subcontract and Principal Contract.
ARTICLE 13. FIELD MEASUREMENTS. Any field measurements which must be taken to insure the proper and exact tit of any
material which is Ibmished under this Subcontract will be the responsibility of tine Subcontractor.
ARTICLE 14. DELAYS. rxlensions of time shall be Subcontractor's sole remedy for delay unless the same shall have been caused
by acts constituting intentional Interference by the Contractor of Subcontractor's performance of the Work where and to the extent that such acts
continue after Subcontractor's notice to Contractor of such interference. Contractor's exercise of any of its rights under Article 7, Changes,
regardless or the extent of number of such changes, or Contractor's exercise of any of its remedies of suspension of the Work, or requirement of
correction or re-execution of any defective Work, shall nut under any circumstances be construed as intentional interference with Subcontractor's
performance of the Work.
ARTICLE IS. INDEMNIFICATION. The Subcontractor agrees that it shall defend. Indemnity, and save harmless the Contractor,
Owner and the Architect, from and against any all claims, damages, losses and expenses (including but not limited to attomeys' fees and costs),
demands, suits and causes of action (irrespective of whether such claims or actions are based upon contract, tort, negligence, strict liability, or
otherwise) arising out of, caused by, resulting from. or occurring In connection with the perfomnance of the Work hereunder, or by or on account
of any act or omission of the Subcontractor, whether or not caused in whole or in part by negligent, reckless or intentional acts or omissions of
the Subcontractor, anyone directly or indirectly employed by it, or anyone for whose acts it cony be liable, told regardless of whether or not such
claim, damage, loss or expense is caused inn any pan by a party indemnified hereunder, and whether or not such claim, damage, loss or expense
be based In part upon the Contractor's, Owner's, Architect's or any other person's alleged negligence, recklessness, or strict liability, or upon any
alleged breach of any statutory duty or obligation on the part of the Contractor, Owner, Architect or Any other person. which claim, damage, loss
or expense the Contractor or Owner may sustain by reason or: injury, damage or loss of use, to the work. tools or materials of any other
subcontractor, or to die work, building, or structure, or to any adjoining building or structure, or to any adjoining work or property, wherler or
any subcontractor or any other person; any injury of any kind or nature whatsoever (including disease or death resulting therefrom) to all persons,
whether employees of the Subcontractor or other workers or time public or otherwise. The aforesaid Indenmincation obligation shall not be
limited by a limitation on arnounts or types of damages, compensation or benefits payable by or for the Subcontractor under workers'
compensation acts, disability benefits acts or other cmplo)ee benelits acts. 'fie aforesaid indemnification obligations shall not be construed to
negate. abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this
paragraph. floe Subcontractor further shall indenndl'y and hold hamnless the Owner, Architect and the Contractor front any and all costs and fees,
Including but not limited to attomeys' lees. incurred by the Owner, Architect or Contractor in connection with establishing any of the Owner's,
Anhilect's or Contractor's rights And remedies under this Contract Including but not limited to the Owner's. Architect's and Contractor's rights
or Indemnification under this paragraph. 1"his Agreement shall be liberally construed in fhvor of the Subcontractor's obligation to defend,
indemnify and save harmless the Owner, Architect and Contractor.
Article 16. TERMINATION. Should the Subcontractor tail to perform in strict accordance with the Principal Contract, this
Subcontract. where or as the Contractor may so direct, or should the Subcontractor become Insolvent. unable to or fail to pay its obligations as
they mature, or, in any other respect. fail, in the opinion of she Contractor, to properly prosecute and perform any part of its work. fall to exert its
best performance efforts, be Involved in labor disputes. or be terminated under any other contract with the Contractor, then the Subcontractor
may be deemed by the Contractor to have materially breached this Subcontract. In case or a breach, as indicated herein or as might otherwise be
determined by law, then the Contractor may, at its discretion, terminate this Subcontract or arty part Thereof, by giving written notice thereof so
the Subcontractor. In the case of such termination, the Contractor may use any and all materials, equipment. tools, or chattels furnished by or
belonging to the Subcontractor either at or for the Project. The Subcontractor, on termination, will be deemed to have offered to the Contractor
an assignment or all or its subcontracts told purchase orders rchating to this Project. The Contractor may, at its discretion, du whatever is
necessary to assure perfomance of any terminated work, and to take such action, if necessary, in the Subcontractor's name. The Contractor may
withhold from Subcontractor monies due or to become due under this or any other contract to offset the damages Incurred or possibly incurred as
a result of the breach. In case or a breach, the Subcontractor and its surety conmpanY shall be liable to the Contractor for any and all additional
costs. expenses, attomeys' fees. and other damages, both liquidated and unliquidated, which directly or indirectly result front the Subcontractor's
breach or threatened breach.
Article 17. BONDS. If the Subcontractor has been requested to fumish a Labor and Materials Bond and a Performance and Payment
Bond as part of this Subcontract, the Subcontractor will fumish a letter from their buiding company indicating that bonds will be issued witidn
five (S) working days of being notified of the award of this Subcontract. and such bonds will be in place prior to the commencement of work.
Subcontractor's failure to meet these requirenents may be dccned a material breach of this Subcontract. The Subcontractor's officers aid the
signatory of this Subcontract accept full perwnal liability should bonds, lit whatever reason, not be furnished.
L 11 fainting 3 lyanud Contraction Services, Inc.
All bonds famished on behalf of the Subcontractor shall be Issued by bonding companies listed in the Federal Register of Approved
Sureties and shall be in a form satisfactory to the Contractor.
Article 18. LEGAL FORUM Any dispute as to the operation. ILIRllment of meaning of this Subcontract or the execution or breach
thereof. may be resolved either by Arbitration or by action at law, at the sole option of the Contractor. If the Contractor shall determine, In Its sole i
discretion. to resolve the dispute between the parties by arbitration, such should be in accordance with the then prevailing rules, regulations and
procedures for arbitration as established end administered by the American Arbitration Association and an award pursuant to such arbitration
shall be Rnal and binding on both parties. Any Award rendered by Arbitrators and any appeal therefrom shall be governed by the Pennsylvania
Statutory Arbitration Law, 42 PLC.S.A. Section 7701, Chapter A. If the Contractor shall determine, in its sole discretion, that an action at law
shall be commenced, such action shall be brought in the Court of Common Pleas of Cumberland County, Pennsylvania. In either forum,
Pennsylvania law shall be applied. J
Article 19. MODIFICATION. This Subcontract shall not be modified by tiny oral agreement. Implied agreement or custom, and no
waiver by the Contractor of these provisions shall be deemed to have been made unless in writing.
Article 20. CLEANUP. The Subcontractor shall continuously maintain the Project free from all dirt, rubbish, debris, and any other
waste materials. The Subcontractor shall be responsible for the removal and disposal of all receptacles and containers Into which same Is
deposited. On the completion of the various portions of the Work, the Subcontractor shall broom clean its work areas. The Subcontractor shall
perform whatever additional cleanup work Is so directed, at no additional cost, by the Contractor's personnel. -
Article 21. SAFETY. The Subcontractor shall be responsible to the Contractor for compliance with all laws, rules, regulations and
orders, Including without limitation, any issued under the Occupational Safety and Health Act of 1970, Including any amendments or changes
thereto, during Subcontractor's performance of the Work. Subcontractor shall abide by the regulations of the OSHA Hazard Communication
Standard, Title 29, Code of Federal Regulations 192639, Including without limitation, submitting to the Contractor Its material safety data sheets
for all hazardous materials being used In the Subcontractor's Work; properly labeling all containers for materials stored on site. Hazardous
materials shall not be disposed of is dwnpsters or waste containers provided by Contractor or Owner.
Article 22. EXHIDITS. This Subcontract is the exclusive contract between the ponies. All prior written or oral representations or
agreements, not Incorporated herein are superseded. The Subcontractor shall incorporate the provisions of this Subcontract and the Contract
Documents In Subcontractor's agreements with suppliers, materialmen, or sub-subcontractors. The Exhibits attached to and made pan of this
Subcontract are as follows:
Exhibit A -Contract Documents
Exhibit D - Scope of Work
Exhibit C - Contract Reconciliation
Exhibit D - Special Requirements
Exhibit E - Insurance
Exhlbit F - Waiver & Release (Partial R Final)
Exhibit G - Liquidated Damages
L It Painting 4 P) amid Construction Services. Inc.
EXIIIBIT A
CONTRACT DOCUMENTS
Outlook Pointe at Shlppensburg
Job No. 1-042-0031
Architectural, Structural, Mechanical. Electrical & Plumbing Drawings prepared by: Charles D. Foster, Architect, P.A.
Civil Drawings prepared by: Alpha Consulting Eng. Finish Schedule Drawings prepared by: Diversified Design
Dwa. No, jtg(11 Drawing Title
CI 12/31/97 Cover
C2 12/31197R Subdivision
C3 12/31/97R Existing Features Plan
C4 12/31/97R Land Development Plan
CS 12/31197R Grading Drainage and Erosion Comm[ Plan
C6 12/31/97R Site Lighting Plan
C7 12/31/97R Misc. Details NI
C8 01/16/98 Misc. Details #2
A301 12/03197 Reference Floor Plan
A302 01/14198A Attic Floor Plan
A401 01/14/98A Dimension Floor Plan
A501 01/14/98A Life Safety Definitions
A502 12/03197 Life Safety Plan
A601 12103197 Reflected Ceiling Plans
A701 12/03197 Roof Plan
A801 12/03197 Elevations
A901 12/0197 Building Sections
AI001 12/3197 Wall Sections
A1002 12/3/97 Wall Sections
A1003 12/3197 Well Sections
A1004 12103197 Wall Sections
AI IOI 12/3197 Gorden Plan
A1301 12103/97 Enlarged Plans
A1401 IV03197 Interior Elevations
A1701 12/03/97 Door/Window Schedule
A1801 12/3197 Miscellaneous Details
A1902 12/3/97 Jamb/Ilead Details
AI803 12/3197 Fireplace Detail
AI804 12/03/97 Miscellaneous Details
SLI IV31197R Foundation Plan
SI.2 12/31197R Foundation Sections & Details
S2.1 12/31/97R Roof Framing Plan
S22 12/31/97R Roof Sections & Details & General Notes,
M 1 12103197 Mechanical Floor Plans
M2 12/3197 Mechnnical Schedules & Details
M3 12/3197 Mechanical Details
El 11/30197 Electrical Notes, Legend & Schedules
E2 11/30197 Electrical Lighting Plan
E3 11/30197 Electrical Power Plan
E4 11/30197 Electrical Enlarged Suite Plans
ES 11/30/97 Electrical Panel Schedules
PI 11/30197 Floor Plan - Waste Piping
P2 11/30197 Floor Plan - Water Piping
P3 11/10197 Flour Plan - Gas Piping
P4 11/30/97 Floor Plan - Therapy, Kitchen, and Sprinkler Layout
P5 11/30197 Flour Plan - Gas Piping, Pressure Backfiow detail, Fire Protection Riser
ID-1 01108/98 Finish Schedule
ID-2 01109/98 Finish Schedule
ID-3 01/09/98 Finish Schedule
A- Addendur. R-Revised
Specifications dated December 3, 1997. Addendum No, 1 dated 01/ 14198, Addendum No. 2 dated 01116198
L It Painting 5 Pyramid Construction Services. Inc.
EXHIBIT B
SCOPE OF WORK
Outlook Pointe at Shippensburg
Job No. 1.042-0031
The following description of the subcontractor's work is not a complete description of the subcontractor's
obligation for this project and the subcontractor must familiarize itself with all relevant contract documents.
1. Scope
To Ibmish and install in accordance with the Project Specification Section 09900 PAINTING and Section
09950 WALL COVERINGS and all project documents and including but not limited to the following:
Painting as specified:
Interior walls and ceilings
Exterior columns
Touch-up
Trim at fireplace
Wood handrail
Wood chairrail
Wood baseboard
Door frames
Doors that are not prefinished
Cabinetry and/or shelving requiring painting
Vinyl wall covering in accordance with the allowances No. 6 and No. 7 as stated under Unit Prices In
Exhibit C.
2. Exclusions
Painting of bl-fold door sets
Painting of panel/flush doors
Bonds
3. Clarifications
None
L II Painting 6 Pyanid ConstnKtion Scniccs, Inc.
EXIIIBIT C
CONTRACT RECONCILIATION
Outlook Pointe at Shippensburg
Job No. 1.042.0031
1. Base Bid
Base Bid $40,955.
PA Sales Tax Sincluded
Bond S N/A
TOTAL $40,955.
2. Unit Prices
Allowance No. 6 - Vinyl Well Coverin¢
The contractor shall allow 510.00 per lineal yard (54 material) for vinyl wall covering (material only),
fo.b, jobsite. Installation, overhead, profit, and miscellaneous materials shall be Included in the base bid.
Allowance No. 7 - Vinyl Wall Coverin¢ Border
The contractor shall allow 515.00 per 15 yard spool (6" depth) for vinyl wall covering border (material
only), f.o.b. jobsite. Installation, overhead, profit and miscellaneous materials shall be included in the
base bid.
3. Billing Rates
N/A
4. Alternates
N/A
S. Relainage
Retainage will be held at die rate of 10%.
L It Painting 7 lyunid Construction Services. Inc.
i
EXHIBIT D
SPECIAL REQUIREMENTS
Outlook Pointe at Shippensburg
Job No. 1.042-0031
The following requirements are intended to supplement this Subcontract and the contract documents
incorporated therein. These Special Requirements are not the extent of the Subcontractor's contractual obligation,
and the Subcontractor must familiarize itseif with all relevant contract documents.
L 11 Palming I Pyanld Comtruction Serriui. Inc.
EXHIBIT E
INSURANCE REQUIREMENTS
Outlook Public at Shippensburg
Job No. 1.042.0031
The following provisions are intended to supplement this Subcontract, and all contract documents
incorporated therein, In the event the contract documents do not require the types and limits as shown here, the
types and limits as shown below must be provided.
Specifically note that all policies of insurance which are required (excepting Worker's Compensation)
provide insurance coverage, on a primary basis, to Pyramid Construction Services, Inc. as Additional Insured and
that these policies have been endorsed to name Pyramid Construction Services, Inc. (insert names oral) other parties
reguired to be named as Additional Insured by our contract with the Owneri as Additional Insureds.
Provide for thirty (30) days prior written notice to Contractor of cancellation and/or non-renewal.
The insurance policies and limits required are as follows:
1. Comprehensive General Liability Insurance on an "occurrence basis" for hazards of (1) Premises -
operations, (2) Explosion, Collapse and Underground, (3) Independent Contractor's Protection, and (4)
Products and Completed Operations (Including coverage for explosion, and underground hazards). Such
General Liability insurance must be endorsed with a Broad Form Property Damage Endorsement (Including
Completed Operations).
a. Bodily Injury:
51,000,000 Each occurrence
51,000,000 Aggregate
b. Property Damage
S1,000,000 Euch occurrence
S1,000,000 Aggregate
C. Products and Completed Operations to be maintained for two (2) years after the date of
acceptance of the Work by Owner and Contractor.
d. Fire Damage:
S50,000 Any one Fire
2. Contractual Liability (must be endorsed so drat any exclusions related to watercrall, railroad property,
products and completed operations and explosion, collapse and underground hazards are deleted.
a Bodily Injury:
$1,000,000 Each Occurrence
51,000.()00 Aggregate
L 11 Painting 9 P)unid Construction Services, Inc.
b. Property Damage:
$1,000.000 Each Occurrence
51,000,000 Aggregate
3. Personal Injury, with Employment Exclusion deleted:
A. S1,0001000 Aggregate
4. Automobile Liability covering all owned, non-owned and hired automobiles, trucks, and trailers. Such
insurance shall provide coverage not less than that of the Standard Comprehensive Automobile Liability
policy (on Business Auto Policy) including owned, non-owned and hired automobiles in limits not less than:
A. Bodily Injury:
5110001000 Each Occurrence
51,000,000 Aggregate
b. Property Damage:
S110001000 Each Occurrence
51,000,000 Aggregate
S. Umbrella Excess Liability of at least S 1,000,000 over the primary insurance for tills project.
6. Worker's Compensation and Employer's Liability:
a. $100,000 Each accident
b. 5300,000 Disease - Policy Limit
C. $100,000 Disease - Each employee
7. If the Subcontract is for a design/build subcontract, the Subcontractor shall provide Professional Liability and
Errors and Omissions Insurance in the following amounts:
a. 51,000,000 Each occurrence
b. $1,000,000 Aggregate
This coverage shall extend one year beyond the date of tlnal acceptance by the Owner.
8. If the Subcontractor intends to submit a request for payment for "Stored Materials", the Subcontractor shall
be required to provide Property Insurance endorsed for Transit and Personal Property Coverage at Unnamed
Locations in the an amount as acknowledged by Subcontractor as not being less than the replacement value of any
stored materials, in the aggregate, for this project. This coverage must also be endorsed to name Pyramid
Construction Services, Inc. and the Owner as Additional Insured and/or loss payees.
L 11 Painting 10 P) amid Construction Servtras.Inc.
EXIIIBIT F
WAIVER & RELEASE
Outlook Pointe at Shippensburg
Job No. 1.042-0031
The undersigned hereby certifies that the work performed and Ilia materials supplied to-date, as shown on
application or invoice number , dated , and fit the amount of S represent the value
of accomplishment under the terms of the Contract (and all authorized changes (hereto) between the undersigned
and Pyramid Construction Services, Inc. relating to the above-referenced project.
The undersigned hereby agrees to indemnify and hold harmless Pyramid Construction Services, Inc., its surety, the
Owner, and their successors and assigns, from any claims of any and all persons, firms, and corporations arising out
of or for the work, labor, Nel, materials, and/or equipment for which payment is made. We also cenily that
payments, less applicable retention, have been made through the period covered by previous payments received
from the Contractor, to (1) all my subcontractors (sub-subcontraclors) and (2) for all materials and labor used in or
in connection with the performance of this Contract. We further certify that we have complied with Federal, State
and Local tax laws, including Social Security laws and welfare and pension fund payments and fringe benefits of all
nature due in connection therewith, have been fully paid through the period covered by previous payments received
from the Contractor.
In consideration of the payments received, and upon receipt of the amount as stated above, the undersigned does
hereby waive, release and relinquish all claim or right of lien which the undersigned may now have upon the
premises as indicated in the contract documents above described except for claims or right of lien for contractor,
and/or change order work performed to extent that payment is being retained or will subsequently become due.
This Is a Partial Final Waiver and Release.
State of:
County of:
Subscribed and sworn to before me this
Day of , A.D. 19
Notary Public:
SUBCONTRACTOR:
By:
Title:
(Typed name as written above)
Commission Expires:
Date:
L It Painting t I Prunid Construction Services, Inc.
EXHIBIT G
LIQUIDATED DAMAGES
Outlook Pointe at Shlppensburg
Job No. 1.042.OU3I
It is mutually agreed by and between the parties hereto that time shall be an essential part of this Agreement and that
in case of failure on the part of the Subcontractor to complete its work within the time specified and agreed upon,
the Contractor will be damaged thereby; and the amount of said damages, being difficult if not impossible of definite
ascertainment and proof, it is hereby agreed that the amount of such damages shall be the sum of S ' thousand
dollars (S • 1 per day as liquidated damages for each calendar day's delay in Qnishing the work in excess of the
number of days prescribed herein; and the Subcontractor hereby agrees that said sum shall be deducted from monies
due the Subcontractor under the Agreement or if no money is due the Subcontractor, the Subcontractor hereby
agrees to pay to the Contractor as liquidated damages, and not by way of penalty, such total sum as shall be due for
such delay.
• Pyramid Construction Services, Inc.'s scheduled completion date is February 2. 1999. Liquidated damages will
be assessed proportionately to this Subcontractor if Pyramid Construction Services, Inc. 1s assessed liquidated
damages. Pyramid Construction Services, Inc, will be assessed 5730.00 per calendar day beyond the contract
completion date:
L 11 Painlins 12 Pyanld Cont.ruction Servlces.lnc.
a
0
_?t:
SHERIFF'S RETURN - REGULAR
CASE NO: 1999-06179 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HOFFMAN LARUE TO III
VS.
PYRAMID CONSTRUCTION SERV INC
KENNETH GOSSERT , Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within COMPLAINT was served
upon PYRAMID CONSTRUCTION SERVICES INC the
defendant, at 9:20 HOURS, on the 11th day of October ,
1999 at 4425 VALLEY RD
,
ENOLA PA 17025 CUMBERLAND
County, Pennsylvania, by handing to JIM REED (VICE-PRESIDENT)
a true and attested copy of the COMPLAINT ,
together with NOTICE
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So answers:
Docketing 18.00
Service 9.30
Affidavit .00
Surcharge 8.00 e
$3b.3U'WI EY, LENOX & COLGAN
10/12/1999 -
by
sworn and subscribed to before me
this .1.? ...c day of AA-4.._.
1999 ,A.D.
F--r-- FPSE2 8f y-
r
LARUE T. HOFFMAN, III
Plaintiff
VS.
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99 SU.99 6179 Civil Term
PYRAMID CONSTRUCTION
SERVICES, INC.
Defendant
JURY TRIAL DEMANDED
AND NOW, Defendant Pyramid Construction Services, Inc., by and through its counsel,
McNees, Wallace & Nurick, makes the following Preliminary Objections to Plaintiffs
Complaint:
1. Plaintiff and Defendant entered into a written subcontract agreement (attached to
Plaintiffs Complaint as Exhibit "A") on or about June 16'", 1998.
2. Article 18 of the Subcontract Agreement provides that "[a]ny dispute as to the
operation, fulfillment of meaning of the Subcontract or the execution or breach thereof, may be
resolved either by arbitration or by action at law, at the sole option of the Contractor."
(Emphasis added)
3. As Plaintiffs counsel was advised on numerous occasions, the choice of legal forum
was exclusively the Defendant's.
4. With regard to the dispute which is the subject of Plaintiffs Complaint, Plaintiffs
counsel has been repeatedly advised that Defendant has selected arbitration as the method of
resolving the dispute.
5. Notwithstanding the foregoing, Plaintiff filed the instant lawsuit with the Honorable
Court and has refused to withdraw its Complaint and submit the dispute to arbitration.
6. Rule 1028(a)(6) of the Pennsylvania Rules of Civil Procedure provides that a
Complaint may be stricken as a result of an agreement for alternative dispute resolution.
7. Accordingly, Plaintiffs Complaint should be dismissed.
WHEREFORE, Defendant Pyramid Construction Services, Inc. respectfully requests this
Honorable Court to dismiss Plaintiff's Complaint.
Plaintiffs Claim for Attorney's Fees Must Be Stricken
8. In Count III of his Complaint, Plaintiff seeks attorneys' fees.
9. Pennsylvania law provides that each party must bear its own attorney's fees in the
absence of a contractual agreement which would entitle Plaintiff to recover attorney's fees should
it prevail or unless authorized by 42 Pa. C.S.A. §2503.
10. Plaintiff has not identified any entitlement to recover attorney's fees.
11. Plaintiff is neither contractually entitled to attorney's fees nor statutorily entitled to
attomcy's fees.
-2-
WHEREFORE, Defendant Pyramid Construction Services, Inc. respectfully requests this
Honorable Court to strike Plaintiffs demand for attorney's fees in Count III as impertinent
pursuant to the provisions of Pa.R.Civ.P. 1028(a).
Respectfully submitted,
McNEES, WALLACE & NURICK
By Alo?? ;A*V?4?
iane M. 'ok ky
Atty No. 44369
James W. Kutz
Atiy No. 47245
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17101-1166
(717)237-5354
Date: //)"3/00
-3-
1, the undersigned, hereby certify that on this 131 day of January, 2000, a true and correct
copy of the foregoing document was served via United States Mail, First Class, postage prepaid,
upon the following:
David J. Lenox, Esq.
Wiley, Lenox & Colgan, P.C.
One South Baltimore Street
Dillsburg, PA 17019
iane M. Tol arsky
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
CAPTION OF CASE
(entire'caption must be stated in full)
LARUE T. HOFFMAN, III
(Plaintiff)
Va.
PYRAMID CONSTRUCTION
SERVICES, INC.
(Defendant)
99SU.99 6179
No.
o 9
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1'ltr w ??;?
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cn
Civil Law 19 99
1. State matter. to W argued (i.e., plaintiff's motion for new trial, defendant's
demurrer to complaint, etc.):
Defendant's Preliminary objections.
2. Identify counsel who will argue case:
(a) for plaintiff: David J. Lenox
Address:One South Baltimore Street
Dillsburg, PA 17019
(b) for defendant: Diane M. Tokarsky
Address:100 Pine Street
P. 0. Box 1166
Harrisburg, PA 17101-1166
3. I will notify all parties in writing within two days that this case has
been listed for argument.
4. Argument Court Date:
,0_u
Dated: /V0 f a t, 171 .7 0 00 Attof6ey for
LARUE T. HOFFMAN, III,
Plaintiff
VS.
PYRAMID CONSTRUCTION
SERVICES, INC.,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
99.6179 CIVIL
CIVIL ACTION - LAW
IN RE, DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE BAYLEY AND HESS. JJ.
ORDER
AND NOW, this 12 * day of June, 2000, the preliminary objection of the defendant
asserting a prior agreement to arbitrate is SUSTAINED and the complaint herein filed is
DISMISSED.
BY THE COURT,
David J. Lenox, Esquire
For the Plaintiff
Diane M. Tokarsky, Esquire
For the Defendant
Kev' A. I-less, J. _ D J
,1422'__ U?.000Z.
6.13-OO
OKs
:film
LARUE T. HOFFMAN, Ill,
Plaintiff
VS.
PYRAMID CONSTRUCTION
SERVICES, INC.,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
99-6179 CIVIL.
CIVIL ACTION - LAW
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE BAYLEY AND HESS. JJ.
OPINION AND ORDER
The defendant in this case has filed a preliminary objection to the complaint seeking
dismissal because of an agreement to arbitrate. According to the complaint, on June 16, 1998,
the parties entered into a written contract for interior painting at a commercial building project
on the Walnut Bottom Road in Shippensburg. The plaintiff contends that, through no fault of his
own, he was prevented from completing the contract. I le has brought an action for damages
resulting from the breach.
Of the twenty-two articles in the contract, one provides as follows:
Article 18. LEGAL FORUM. Any dispute as to
the operation, fulfillment of meaning of this
Subcontract or the execution or breach thereof,
may be resolved either by arbitration or by action
at law, at the sole option of the Contractor. If the
Contractor shall determine, in its sole discretion, to
resolve the dispute between the parties by
arbitration, such should be in accordance with the
then prevailing rules, regulations and procedures
for arbitration as established and administered by
the American Arbitration Association and an
award pursuant to such arbitration shall be f final
and binding on both parties. Any award rendered
by arbitrators and any appeal therefrom shall be
governed by the Pennsylvania Statutory Arbitration
99-6179 CIVIL
Law, 4211a.C.S.A. Section 7301, Chapter A. If the
Contractor shall determine, in its sole discretion,
that an action at law shall be commenced, such
action shall be brought in the Court of Common
Pleas of Cumberland County, Pennsylvania. In
either forum, Pennsylvania law shall be applied.
Pennsylvania Rule of Civil Procedure 1028(a)(6) expressly provides that preliminary
objections may be tiled asserting a prior agreement for alternative dispute resolution. Our courts
have made it clear that preliminary objections may be used to invoke the process of arbitration.
See Goral v. Pox Ridge, Inc„ 453 Pa.Supcr. 316, 323, 683 A.2d 931, 934 (1996).
Arbitration is a favored method of dispute resolution in this Commonwealth. See
Waddell v. Shriber, 465 Pa. 20, 27, 348 A.2d 96, 99 (1975). The court must decide whether a
dispute should be resolved through litigation or by arbitration. See ad The disputc shall be
resolved by arbitration if it falls within a contractual arbitration provision. See Wolf v.
al i ore, 250 Pa. Super. 230, 234, 378 A.2d 911.912 (1977); scc also Waddell, 348 A.2d at
100. To determine this, the court must review the contractual language and decide whether the
dispute falls within the scope of the arbitration provision. See Shadduck v. Kaclik. Inc., 713
A.2d 635, 635 (Pa.Super. 1998).
In Shadduck v. Kaclik. Inc., the Court held that all claims arising out of construction
contract, or the breach thereof, were subject to a mandatory arbitration provision because of the
provision's expansive terms and the absence of limiting language. Sec !d at 635. The provision
in the contract required that all disputes be submitted to the American Arbitration Association for
final, binding arbitration. Sec Id at 636. The Court held that the dispute should be submitted for
compulsory arbitration consistent with the agreement of the parties. Sec id. at 639.
99-6179 CIVIL
Similarly, in Shamokin Area School Authority v rnrfield Co , the contract between the
parties provided that "all claims, disputes and other matters in question arising out of, or relating
to, this Contract or the breach thereof... shall be decided by arbitration in accordance with the
Construction Industry Arbitration Rules of the American Arbitration Association then obtaining
unless the parties agree otherwise," See Shamokin Area School Authority v rarfield Co,, 308
Pa. Super. 271, 273, 454 A.2d 126, 127 (1982). The Court held that arbitration should be
compelled. See id, at 129. In Waddell v. Shriber, the Court held that by subscribing to the New
York Stock Exchange Constitution, the parties created a contractual obligation to resolve any
disputes through arbitration. See Waddell, 348 A.2d at 100.
In this case, the contract provided for arbitration of any "dispute as to the operation,
fulfillment or meaning of the Subcontract or the execution or breach thereof." It is difficult to
imagine language more expansive that that. We have, therefore, no hesitation in reaching the
conclusion that this dispute is subject to arbitration at the option of the defendant and will,
accordingly, sustain the defendant's preliminary objection.
ORDPR
AND NOW, this /Z-' day of June, 2000, the preliminary objection of the defendant
asserting a prior agreement to arbitrate is SUSTAINED and the complaint herein filed is
DISMISSED.
BY THE- COURT,
t A. I less, J.
99-6179 CIVIL
David J. Lenox, Esquire
For the Plaintiff
Diane M. Tokarsky, Esquire
For the Defendant
Arn
4