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03-3531
Larry L. Miller, Esquire Pa. Supreme Court I.D. No. 28122 1423 State Road Duncannon, PA 17020 Telephone: [717] 957-2828 Attorney for Plaintiff: CIESCO, Inc. CIESCO, INC. : 109 Millers Lane : Harrisburg, PA 17110 : Plaintiff : FIDELITY AND DEPOSIT COMPANY : OF MARYLAND : 300 Saint Paul Place, POB 1227: Baltimore, MD 21202 : CUMBERLAND PERRY VOCATIONAL : TECHNICAL SCHOOL : 110 Old Willow Mill Road : Mechanicsburg, PA 17055 : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 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 Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAK~ THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT RAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET L~GAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 170133 800.990.9108 Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viento (20) dias de plazo al partir de le fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea advisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo adviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o es propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ARODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO DUFICIENTE DE PAGAR TAT, SERVICIO, VAYA EN PERSONA O LI,AME POR TELEFONO A T,A OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 170133 800.990.9108 /"i / MILLER I.D. #28122 Attorney for Plaintiff Date: July 23, 2003 Larry L. Miller, Esquire Pa. Supreme Court I.D. NO. 28122 1423 State Road Duncannon, PA 17020 Telephone: [717] 957-2828 Attorney for Plaintiff: CIESCO, Inc. CIESCO, INC. : 109 Millers Lane : Harrisburg, PA 17110 : Plaintiff : FIDELITY AND DEPOSIT COMPANY : OF MARYLAND : 300 Saint Paul Place, POB 1227: Baltimore, MD 21202 : CUMBERLAND PERRY VOCATIONAL : TECHNICAL SCHOOL : 110 Old Willow Mill Road : Mechanicsburg, PA 17055 : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LJ~W COMPT,AINT 1. Plaintiff, CIESCO, Inc. ("CIESCO"), is a Pennsylvania corporation with its principal place of business located at 109 Millers Lane, Harrisburg, PA 17110. CIESCO is engaged in the business of, inter Kal~, supplying building materials for use in the construction and building industry. ( "F&D" ) , business 2. Defendant, is an insurance company with located at 300 Saint Paul Place, Fidelity and Deposit Company of Maryland its principal place of Baltimore, MD 21202. 3. Defendant, Cumberland Perry Vocational Technical School ("Cumberland"), of 110 old Willow Mill Road, Mechanicsburg, PA 17055, is the owner of a project known as the Cumberland Perry Vocational Technical School Project ("Project"). 4. Venue is proper in Cumberland County as this dispute arises from a construction project at the Cumberland Perry Vocational Technical School that is located in Cumberland County. COUNT I CIESCO, INC. FIDELITY AND DEPOSIT COMPANY OF MARYLAND Inc. ("Kamand"), executed a whereby Kamand, as principal, F&D and its bankrupt principal, Kamand Construction, Payment Bond, Bond No. PAY 8578638, and F&D, as surety, bound themselves jointly and severally conditioned upon the prompt payment by Kamand to all persons supplying labor and material in the prosecution of the work under said contract for the Project. Even though Plaintiff has requested copies of the bond from Defendants, Defendants have failed and refused to provide Plaintiff with a copy of the bond. 2 6. In reasonable reliance upon the Project being bonded, CIESCO delivered goods and materials to Jacob Construction for the Project. 7. The total sales delivered by CIESCO and accepted unpaid is $7,723.59, plus service 8. It is believed price for the goods and materials by Jacob Construction remaining charges. and therefore averred that Jacob Construction has not been paid for the materials that were used and incorporated into the Project. 9. CIESCO's materials between Jacob Construction, materials furnished by construction and used in Project. 10. were utilized on the contract Kamand, and Cumberland and all of the CIESCO were incorporated into the the execution and completion of the CIESCO has been damaged by the loss of use of these liquidated 11. CIESCO perfecting its claim sums owed and is entitled to the recovery of interest. has complied with all conditions for and right of action under the payment bond. Ail conditions precedent to the making of this claim have been performed or have been waived by F&DJ 12. One year has not elapsed from the date on which the last materials were provided by CIESCO to the Project and although due demand has been made upon F&D, no part of the remaining amount 3 due of $7,723.59 or any interest thereon, or any sums owed herein above stated, has been paid to CIESCO. 13. CIESCO has been forced by F&D to employ the undersigned attorney to enforce payment under the bond and is entitled to recover from F&D reasonable attorney's fees. as Honorable Court Deposit Company interest, WHEREFORE, Plaintiff, CIESCO, Inc., prays for this Fidelity and in the amount of $7,723.59, plus costs. to enter judgment against Defendant, of Maryland, attorney's fees, and COUNT II CIESCO, INC. FIDELITY A_ND DEPOSIT COMPA/~Y OF MARYLAND 14. Paragraphs 1 through 13 of this Complaint are incorporated herein by reference as if set forth in full. 15. Pursuant to the applicable common law and insurance regulatory scheme in Pennsylvania, F&D owed CIESCO the duties of good faith and fair dealing. 16. CIESCO promptly notified F&D of its claims as soon as it was able to determine that F&D was the surety on the Project. A true and correct copy of the June 19, 2003 notice letter to F&D is attached hereto as Exhibit '~A" and incorporated herein by reference. 17. refused to respond to 18. bond claim. 19. obligations F&D has wilfully and in bad faith, failed and furnish a copy of the bond and to investigate and CIESCO's claim as required by Pennsylvania law. F&D has no non-frivolous defense to CIESCO's payment F&D has in bad faith, and contrary to its under Pennsylvania law and regulations, and in bad faith, good faith advantage. completely ignored CIESCO's claim. 20. By its deliberate breach of the implied covenants of and fair dealing, F&D sought an unconscionable 21. There was no reasonable basis in fact or law for the undue delay in paying CIESCO's claim and F&D and its agents acted with knowledge that their conduct was unreasonable and in reckless disregard of CIESCO's rights. 22. F&D, through its authorized agents, evil intend and with malice. though breach of surety. has acted with 23. F&D has forced CIESCO to institute this action even has no non-frivolous defense to the bond claim. 24. F&D's acts constitute willful misconduct and a its duties and obligations as a licensed Pennsylvania 5 25. F&D is liable to CIESCO for all damages caused by its bad faith conduct. ~ 42 Pa. Cons. Stat. § 8361; ~ Construction v. First Indemnity of America, 829 F. Supp. 752, 764 (E.D. Pa. 1993); Reading Tube Corp. v. Employer's Ins. of Wausau, 944 F. Supp. 398, 403 (E.D. Pa. 1996) ("[c]ourts have extended this [bad faith] statute to actions against sureties for failure to honor performance bonds"); J. Surety Company, No. 97-CV-2225 WHEREFORE, Bevi]acqua Sons, Inc. v. Colonial (C.P. Lackawanna, August 28, 1998). Plaintiff, CIESCO Inc., demands judgment against Defendant, all of its damages together with costs damages. Fidelity and Deposit Company of Maryland, for which exceed the local arbitration limit, of this suit, attorney's fees, and punitive COIINT III CIESCO, INC. CUMBERLAND PERRY VOCATIONAL TECHNICAl, SCHOOl, 26. Paragraphs 1 through 25 of this Complaint incorporated herein by reference as if set forth in full. 27. entered into Cumberland Perry Vocational Technical School are It is believed and therefore averred that Cumberland a contract with Kamand for construction work on the Project. 6 28. Even though Defendants have failed and refused to produce a copy of the contract to CIESCO, it is believed and therefore averred that the contract gives the owner the right to pay unpaid suppliers and subcontractors on the Project. 29. As a result of CIESCO's delivery of the goods and materials to the Project, there became due and owing to CIESCO the sum of $7,723.59, plus service charges~ 30. Cumberland received the benefit of and accepted the goods and materials that were furnished to the Project by CIESCO. 31. On June 19, 2003, CIESCO notified Cumberland in writing, that it had not been paid for the materials furnished to the Project and requested payment from Cumberland, as well as a copy of the payment bond. A true and correct copy of the June 19, 2003 letter is attached hereto as Exhibit "A." 32. CIESCO has continued to demand payment from Cumberland and Cumberland has refused and still refuses to pay any or all of said amount that is due CIESCO for the goods and materials that were delivered to the Project. 33. All of the materials furnished by CIESCO to the Project have been incorporated into the Project for the sole benefit of Cumberland. 34. CIESCO has a right to be paid directly by Cumberland for the materials that CIESCO furnished to the Project. 7 35. At all times relevant hereto, sufficient funds have been due for Cumberland to pay CIESCO's claim of $7,723.59, plus interest, in full. 36. Upon information and belief, the contract between Kamand and Cumberland, of which CIESCO is an intended beneficiary, provides that payment will not be made to Kamand until suppliers of materials are paid and that final payment will not be made until all claims of suppliers are paid. 37. The above-set forth terms and conditions were material terms of a contract between Kamand and Cumberland and were terms upon which CIESCO reasonably relied, in part, in furnishing and supplying goods and materials to the Project. 38. CIESCO is an intended obligation to Cumberland to ensure that on the Project are paid in full. beneficiary of Kamand's all suppliers of material contract, it is withholding from Kamand. ~Q~pany, 364 Pa. 52, 70 A.2d 828 Savings A.2d 132 39. In accordance with the terms and conditions of the Cumberland has a duty to pay CIESCO out of the funds that Spires v. Hanover FJre Insurance (1950); Kreimer v. Second Federal & Loan Ass'n of Pittsburgh, 196 Pa. Super. Ct. 694, 176 (1961). 8 40. Under such circumstances, equity and justice recognize the supplier's claim against the contract balance. See Restatement of Restitutions ~ 160 (1937) . 41. CIESCO is a third-party beneficiary of the contract between Cumberland and Kamand. 42. CIESCO is a third-party beneficiary to the undisbursed funds held by Cumberland and therefore, is entitled to full payment from these funds. WHEREFORE, Plaintiff, CIESCO, Inc., prays for and demands judgment against Defendant, Cumberland Perry Vocational Technical School, in the amount of $7,723.59, plus interest, and such other relief as this Honorable Court deems just and proper. COUNT IV CIESCO, INC. CIIMBERI,AND PERRY VOCATIONAL TECHNICAL SCHOOL 43. Paragraphs 1 through 42 of this Complaint are incorporated herein by reference as if set forth in full. 44. The funds held by Cumberland are being held in trust for CIESCO as an unpaid material supplier on the Project. 45. CIESCO has an equitable lien against the funds being withheld by Cumberland and is entitled to receive full payment for the goods and materials delivered to the Project. See Selby v. Ford Motor Company, 509 F.2d 642 (6th Cir. 1979); Jacobs v. ~ortheastern Corporation, 416 Pa. 417, 206 A.2d 49 (1965); Ram Construction Company, Inc. v. American States Insurance Company, 749 F.2d 1049 (3d Cir. 1984); In Re Inca Materials, Inc., 880 F.2d 1307 (11th Cir. 1989); United Parcel Service, Inc. ¥. Weben Industries, Inc., 794 F.2d 1005 (5th Cir. 1986). 46. Kamand for its performance of the contract for Cun~erland. 47. Cumberland is required to pay CIESCO in full the funds that it is holding in trust for CIESCO's benefit. CIESCO has an equitable lien against all funds due WHEREFORE, Plaintiff, CIESCO, Inc., prays judgment in its favor and against Defendant, Vocational Technical School, in the amount of interest and such other relief as this Honorable COUNT V and proper. from Cumberland $7,723.59, Court deems just CIESCO, INC. CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL for and demands Perry plus 48. Paragraphs 1 through 47 of this Complaint are incorporated herein by reference as if set forth in full. 49. Cumberland has received the benefit of CIESCO's performance. 10 50. As a direct result of CIESCO's performance, Cumberland has received goods and materials of a value of $7,723.59 that have been permanently incorporated into the Project for which payment it has received goods and materials that were has never been made. 51. Cumberland has also been unjustly enriched because delivered by CIESCO and has never paid for them. 52. Therefore, CIESCO is entitled to obtain a full recovery against Cumberland. See In Re Gebco Investment Corporation, 641 F.2d 143 (3d Cir. 1981); Gee v. Eberle, 279 Pa. Super. Ct. 101, 420 A.2d 195 (1980). WHEREFORE, Plaintiff CIESCO, judgment in its favor and against Defendant, Cumberland Vocational Technical School, in the amount of interest and such other relief as this Honorable Court deems COUNT VI Inc., prays for and demands Perry $7,723.59, plus just and proper. CIESCO BUILDING SUPPLY CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL 53. Paragraphs 1 through 52 of this Complaint are incorporated herein by reference as if set forth in full. 11 54. CIESCO has an from Cumberland to Kamand. Jacobs v. Pa. 417, 206 A.2d 49 (1965); In Re 641 F.2d 143 (3d Cir. 1987). equitable interest in the funds due Northeastern Corporation, 416 Gebco Investment Corporation, WHEREFORE, Plaintiff, CIESCO, Inc., prays for and demands judgment in its favor and against Defendant, Cumberland Perry Vocational Technical School, in the amount of $7,723.59, plus interest and such other relief as this Honorable Court deems just and proper. COUNT VII CIESCO BUILDING SUPPLY CUMBERLAND PERRY VOCATIONA¥, TECHNICAL SCHOOL and FIDELITY AND DEPOSIT COMPANY OF MARYI,AND 55. Paragraphs 1 through 54 of this Complaint are incorporated herein by reference as if set forth in full. 56. Cumberland and Kamand owed fiduciary duties to all suppliers and subcontractors on the Project. 57. Cumberland and Kamand had full knowledge that CIESCO was an intended beneficiary of the payment bond that had been issued by Kamand and F&D. 58. Cumberland and Kamand knew that CIESCO and other suppliers on the Project had no access to the surety information except through them. 12 59. Under contract, Cumberland, as general contractor, had a Pennsylvania law and pursuant to their obligee and owner, and Kamand, as the legal duty and responsibility to ensure that payment was properly being made to the suppliers on the job. 60. CIESCO, at all times relevant hereto, was a third- party beneficiary under the payment bond that was issued by F&D and Kamand for the Project. 61. When Kamand failed to pay the $7,723.59 due CIESCO, CIESCO promptly made numerous inquiries to obtain the necessary surety information. 62. Defendants wilfully failed and refused to timely provide the surety information to CIESCO pursuant to its requests. 63. Defendants wilfully and in bad faith failed and refused to respond to CIESCO's many requests for the surety information with the intention and desire of intentionally interfering with CIESCO's contractual rights under the bond. 64. Defendants deliberately and wilfully conspired to conceal the surety information with the specific intention of destroying CIESCO's contractual rights under the payment bond. 65. Defendants had a duty to provide the surety information to CIESCO. 13 66. Despite their duties pursuant to the contract and Defendants still have not provided a copy of the surety under law, bond. 67. Defendants with CIESCO's contractual willfully and intentionally interfered rights by their intentional misconduct. 68. As a direct and proximate result of the interference and misconduct, CIESCO has suffered damages, which continue. 69. for tortious interference, costs and has been unduly damages due it. WHEREFORE, judgment in its favor and Vocational Technical School Maryland, intentional substantial Solely because of Defendants' willful misconduct and CIESCO has suffered additional fees and delayed in receiving the payment and Plaintiff, CIESCO, Inc., prays for and demands against Defendants, Cumberland Perry and Fidelity and Deposit Company of in an amount exceeding the local arbitration limits. COUNT VIII CIESCO, INC. CUMBERI~AND PERRY VOCATIONAL TECHNICAl, SCHOOL 70. Paragraphs 1 through 69 of this Complaint are incorporated herein by reference as if set forth in full. 14 that paid. 71. Under Pennsylvania law, subcontractors and suppliers on owners have a duty to ensure a project are being timely 72. Cumberland breached its duties of good faith and fair dealing by refusing to address CIESCO's inquiries for the surety information and by refusing to acknowledge CIESCO's equitable rights to the job funds. 73. The actions of Cumberland were intentional and designed to cause specific harm and injury to CIESCO. 74. Cumberland willfully acted in bad faith in an effort to injury CIESCO. 75. Cumberland's conduct was 76. As a direct and acts of intentional misconduct, damages. outrageous. proximate result of Cumberland's CIESCO has suffered substantial WHEREFORE, Plaintiff, CIESCO, judgment in its favor and against Vocational Technical School, in an amount arbitration limits, plus punitive damages. Date: July 23, 2003 By: Inc., prays for and demands Defendant, Cumberland Perry exceeding the local 15 MILLER LAW OFFICES, P.C. 1423 State Road Duncannon. PA [7020 :001 717 957 2828 6/19/03 #4001 Fax71795?4843 ,84 3875 44 I 1000 6952 New lersey Office - Suite 108, 50 Chestnut Ridge Road Momvale. NJ 07645 201 476 9089 Fax 201 573 1062 June 19, 2003 VIA CERTIFIED MAIL Mary Rodman Administrative Director Cumberland Perry Vocational Technical School 110 Old Willow Mill Road Mechanicsburg, PA 17055 VIA CERTIFIED MAIL Kamand Construction, Inc. 203 Lynndale Court Mechanicsburg, PA 17050 VIA CERTIFIED MAIL Fidelity and Deposit Maryland 300 Saint Paul Place P.O. Box 1227 Baltimore, MD 21202 *001 6/19/03 #4001 ,84 3875 44 I ]000 6969 Company of Re: NOTICE OF COMMERCIAL INTERIOR & EXTERIOR SUPPLY COMPANY, INC.'S CLAIM AGAINST THE PAYMENT BOND, EQUITABLE LIEN, AND UNJUST ENRICHMENT CLAIM Project: Cumberland Per~ Vocational Technical School Our File: #4001 m#alt~ttam,m,~z, ul ~001 Dear Sirs or Madams: 6/19/03 #4001 ~84 3875 44 I ]000 6983 Please be advised that I am representing Commercial Interior & Exterior Supply Company, Inc. CClESCO"), regarding its claim for non-payment for goods and materials that it delivered to Jacob Construction Co., LLC. at the project known as the Cumberland Perry Vocational Technical School ("Project"). The last shipment of materials to the Project was made on or after April 3, 2003. CIESCO's claim is in the amount of $7,723.59, plus service charges. CIESCO asserts its claim under the Payment Bond, requests that you promptly furnish it with a copy of the Payment Bond, and demands payment thereunder. Please be advised that CIESCO also desires to assert an equitable lien against all funds being withheld by the owner and/or general contractor so that it can receive full payment for the materials that were delivered to and incorporated into the project. ~ Jacobs v. Northeastern Corporation, 416 Pa. 417,206 A.2d 49 (1965); U. LzJted Parcel Service, Inc. v. Weben Industries, Inc., 794 F.2d 1005 (5th Cir. 1986). In addition, CIESCO seeks to assert a claim for unjust enrichment because its materials have been utilized in the performance of the work on the job and no one has been paid for its materials. ~ In re Gebco Investment Corporation, 641 F.2d 143 (3rd Cir. 1981 ); G.e,_e_v_, E~, 279 Pa. Super. Ct. 101,420 A.2d 195 (1980), We believe that the District has a EXHIBIT A Mary Rodman, Administrative Director FJde~ty and Deposit Company of Maryland Kamand Construction, Inc. June 19, 2003 Page 2 duty to impose a constructive trust for the benefit of ClESCO and to withhold sufficient funds to pay its claim in full, with interest. I certify that the foregoing statements made by me as an agent for ClESCO are true and correct, Further, I have been specifically authorized and reguested by CIESCO to fi;e this notice. I am acting pursuant to the specific request of Jeffrey G. Depew, II, Controller for CtE$CO. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Please confirm that you will take all necessary actions to ensure that the funds on the project are protected and preserved for the payment of the claim of my client, CIESCO, in full. Sincerely,,/ Larry L. Miller CC: LARRY L. MILLER, ESQUIRE MILLER LAW OFFICES, P.C. 1423 STATE ROAD DUNCANNON, PA 17020 6/19/03 #4005 Striewig Bonding Agency, Inc. 7184 3875 4490 0000 6969 Ill I IIIlffillllllll!!!!! 7184 3875 4490 0000 6969 ?IDELITY AND DEPOSI? COMPANY OF M~ 300 SAINT PAUL PLACE P.O. BOX 1227 BALTIMORE MD 21202 LARRY L- MILLE~'~ ESQUIRE 1423 S~ATE ROAD DUNCANNON, PA 17020 (Exits ;'ee) ~¥~s CERTIFIED 7184 3875 4490- 0000 6952 7184 3875 4490 DODO 69~2 MARY RODMAN* ADMINISTRATIVE DIREC~ CUMBERLAND pERRY VOCATIONAL TECHNICAL SCHOOL 110 OLD WILLOW MILL ROAD MECHANICSBURG PA 1705~ VERIFICATION I, LARRY L. MILLER, have prepared the foregoing COMPLAINT. The factual statements contained therein are true and correct. I am authorized to make this Verification on behalf of my client, CIESCO, Inc., who is outside the jurisdiction of this Court. The facts set forth in the pleading are known to me and are also based upon my review of the documents and information furnished by Mr. Jeffrey G. Depew, II, Controller, CIESCO, Inc. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal p~nalties. Date: July 23, 2003 ~LA~ L. MILLER CIESCO, INC., Plaintiff VS. FIDELITY AND DEPOSIT COMPANY OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 03-3531 CIVIL TERM NOTICE TO PLEAD TO PLAINTIFF: You are hereby notified to file a written response to the enclosed Answer and New Matter of defendant Cumberland Perry Area Vocational Technical School within twenty (20) days from service hereof or a judgment may be entered against you. KEEFER WOOD AI.I.~N & RAHAL, LLP CIESCO, INC., Plaintiff VS. FIDELITY AND DEPOSIT COMPANY OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 03-3531 CIVIL TERM ANSWER AND NEW MATTER OF CUMBERLAND PERRY AREA VOCATIONAL TECHNICAL SCHO0]I, AND NOW, comes the defendant, Cumberland Perry Area Vocational Technical School, by and through its counsel, Keefer Wood Allen & Rahal, LLP, and files this Answer and New Matter to the Complaint in the above matter, averring as follows: 1. Admitted upon information and belief. 2. After reasonable investigation, defendant, Cumberland Perry Area VocatiOnal Technical School ("Cumberland"), is without sufficient knowledge to admit or deny the allegations set forth in this paragraph. Therefore, they are denied and strict proof thereof is demanded at the time of thal. 3. Denied as stated. The correct name of the defendant is Cumberland Perry Area Vocational Technical School. 4. Admitted. COUNT I 5-13. These allegations relate to another defendant and no response is required. COUNT II 14~25. These allegations relate to another defendant and no response is required. 26. COUNT III Paragraphs 1 through 25 above are incorporated here by reference as if set forth in full. 27. Admitted. 28. Denied as stated. It is denied that Cumberland failed and refused to produce a copy of the contract between Kamand Construction ("Kamand") and Cumberland, since none was requested. Further, the contract is a document and therefore speaks for itself. 29. After reasonable investigation, Cumberland is without sufficient knowledge to form a belief as to the troth of the matters asserted. Therefore, they are denied and strict proof thereof is demanded at the time of trial. 30. After reasonable investigation, Cumberland is without sufficient knowledge to form a belief as to the truth of the matters asserted. Therefore, they are denied and strict proof thereof is demanded at the time of trial. By way of further answer, Cumberland had no contract with Ciesco and was provided no benefit by Ciesco. 31. Admitted. 2 32. Denied. Ciesco has not made continued demands for payment from Cumberland. Further, Cumberland has no obligation under any legal or equitable basis to pay monies to Ciesco. 33. After reasonable investigation, Cumberland is without sufficient knowledge to form a belief as to the truth of the matters asserted. Therefore, they are denied and strict proof thereof is demanded at the time of trial. 34. Ciesco has no right, either in law or in equity, to be paid by Cumberland for the materials it provided to Kamand. 35. Denied. It is specifically denied that Cumberland has an obligation to pay Ciesco's claim of $7,723.59. 36. Denied. Ciesco is not an intended beneficiary of any contract between Kamand and Cumberland. Further, to the extent that paragraph 36 states a conclusion of law, no response is required. To the extent a response is deemed necessat~y, it is denied and strict proof thereof is demanded at the time of trial. 37. Denied. Ciesco is not an intended beneficiary of any contract between Karnand and Cumberland. Further, to the extent that paragraph 37 states a conclusion of law, no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 38. Denied. Ciesco is not an intended beneficiary of any contract between Kamand and Cumberland. Further, to the extent that paragraph 38 states a conclusion of law, no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 39. Denied. Cumberland has no duty, equitable or legal, to pay Ciesco for materials that it sold to Kamand. Further, to the extent that paragraph 39 states a conclusion of law, no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 40. Denied. Ciesco is not an intended beneficiary of any contract between I{amand and Cumberland. Further, to the extent that paragraph 40 states a conclusion of law, no!response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 41. Denied. Ciesco is not an intended beneficiary of any contract between Kamand and Cumberland. Further, to the extent that paragraph 41 states a conclusion of law, no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 42. Denied. Ciesco is not an intended beneficiary of any contract between Kamand and Cumberland. Further, to the extent that paragraph 42 states a conclusion of law, no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Cumberland requests that this Honorable Court dismiss the claims against Cumberland and grant such other relief as it deems fair and just. 4 43. full. 44. COUNT IV Paragraphs 1 through 42 above are incorporated hem by reference as if set forth in Paragraph 44 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at trial. 45. Paragraph 45 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at trial. 46. Paragraph 46 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at trial. 47. Paragraph 47 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded ,at trial. WHEREFORE, Cumberland requests that this Honorable Court dismiss the claims against Cumberland and grant such other relief as it deems fair and just. full. 48. COUNT V Paragraphs 1 through 47 above are incorporated here by reference as if set forth in 49. To the extent that Cumberland has received the benefit of any materials provided by Ciesco, it has paid Kamand or will pay Kamand, the Trustee in Bankruptcy or the performance bond company any monies that would otherwise be due and owing to Kamand under its contract. 50. After reasonable investigation, Cumberland is without sufficient knowledge to form a belief as to the truth of the matters asserted. Therefore, they are denied and strict proof thereof is demanded at the time of trial. 51. Paragraph 51 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at trial. 52. Paragraph 52 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at trial. WHEREFORE, Cumberland requests that this Honorable Court dismiss the claims against Cumberland and grant such other relief as it deems fair and just. full. 53. COUNT VI Paragraphs 1 through 52 above are incorporated here by reference as if set forth in 54. Paragraph 54 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at trial. WHEREFORE, Cumberland requests that this Honorable Court dismiss the claims against Cumberland and grant such other relief as it deems fair and just. COUNT VII 55. Paragraphs 1 through 54 above are incorporated here by reference as if sctl forth in full. 6 56. Denied. It is specifically denied that Cumberland owed any fiduciary duties to any suppliers or subcontractors on the project. 57. Paragraph 57 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 58. Denied. Ciesco and any other supplier on the project had access to surety information through McKissick Associates. 59. Paragraph 58 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 60. Paragraph 60 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 61. After reasonable investigation, Cumberland is without sufficient knowledge to form a belief as to the truth of the matters asserted. Therefore, they are denied and strict proof thereof is demanded at the time of trial. Denied. Upon inquiry, Cumberland forwarded Ciesco's request to McKissick 62. Associates. 63. Paragraph 63 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 7 64. Paragraph 64 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of thai. 65. Paragraph 65 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 66. Paragraph 66 states a conclusion of law to which no response is required; To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 67. Paragraph 67 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 68. Paragraph 68 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 69. Paragraph 69 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Cumberland requests that this Honorable Court dismiss the claims against Cumberland and grant such other relief as it deems fair and just. 8 full. 70. COUNT VIII Paragraphs 1 through 69 above are incorporated here by reference as if set forth in 71. Paragraph 71 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 72. Denied. It is specifically denied that Cumberland breached any duty under the Subcontractors and Suppliers Act or that it failed to act in good faith. By way of further answer, paragraph 72 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 73. Paragraph 73 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 74. Paragraph 74 states a conclusion of law to which no response is required; To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 75. Paragraph 75 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of trial. 9 76. Paragraph 76 states a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied and strict proof thereof is demanded at the time of thai. WHEREFORE, Cumberland requests that this Honorable Court dismiss the claims against Cumberland and grant such other relief as it deems fair and just. NEW MATTER 77. Plaintiff's complaint fails to state a claim upon which relief can be granted. 78. Plaintiff failed to mitigate its damages. 79. Plaintiff had no contractual relationship with Cumberland. 80. Cumberland's project, being a public entity, is not subject to lien for construction purposes under the Pennsylvania Mechanic's Lien Law. 81. Being a public works contract, plaintiff's counsel knew or should have known that a payment and performance bond was required. 82. Cumberland has paid for, is in the process of paying, or has legitimately received a charge back for all work performed by Kamand on the project in accordance with the original contract, except those monies which have been legitimately withheld from payment. 10 WHEREFORE, Cumberland requests that this Honorable Court enter judgment against Ciesco and in its favor and grant such other relief as it deems fair and just. Respectfully submitted, KEEFER WOOD Al J .FN & RAHAL, LLP Dated: August ~,2003 By "~P~N L. GP~OSE Attorney I.D. #31006 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8052 Attorneys for Defendant, Cumberland Perry Area Vocational Technical School 11 VERIFICATION The undersigned, Mary Rodman, Administrative Director of Cumberland/Perry Area Vocational Technical School, hereby verifies and states that: 1. She is authorized to sign this verification on behalf of Cumberland/Perry Area Vocational Technical School; 2. The responses set forth in the foregoing Answer and New Matter are tree and correct to the best of her knowledge, information, and belief; and 3. She is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unswom falsification to authorities. Mary~Rodman CERTIFICATE OF SERVICE I, Stephen Grose, Esquire, one of the attorneys for defendant, Cumberland Perry Area Vocational Technical School, hereby certify that I have served the foregoing paper upon parties and counsel of record this date by depositing a tree and correct copy of the same in the United States mall, first-class postage prepaid, addressed as follows: Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 Fidelity and Deposit Company of Maryland 300 Saint Paul Place POB 1227 Baltimore, MD 21202 KEEFER WOOD Al I.EN & RAHAL, LLP Dated: August 1.~, 2003 r-' ] L~kRRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. No. 28122 1423 State Road Duncannon, PA 17020 Telephone: [7171957-2828 Attorney for Plaintiff: CIESCO, INC. CIESCO, INC. Plaintiff FIDELITY AND DEPOSIT COMPANY OF MARYLAND CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03-3531 Civil Term ANSWER OF CIESCO, INC. TO NEW MATTER OF CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL CIESCO, Inc. (~'CIESCO"), by and through its counsel, hereby answers the New Matter of the Cumberland Perry Vocational Technical School ("VoTech") as follows: 77. Denied. The averments set forth in paragraph 77 state an incorrect conclusion of law and accordingly are denied. 78. Denied. The averments set forth in paragraph 78 are false and accordingly, are specifically denied. Proof thereof is demanded. 79. Denied. The averments set forth in paragraph 79 state an incorrect conclusion of law and accordingly are denied. 80. Admitted. 81. Denied. The averments set forth in paragraph 81 are denied as irrelevant. 82. Denied. CIESCO lacks knowledge to form a belief as to the forth in paragraph 82 and they are accordingly denied. WHEREFORE, CIESCO, Inc. respectfully requests sufficient information or truth of the averments set this Honorable Court grant judgment in its favor and against Cumberland perry Vocational Technical School. DATE: August 19, 2003 By: VERIFICATION I, LARRY L. MILLER, have prepared the foregoing ANSWER TO NEW MATTER. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this Verification on behalf of my client, CIESCO, INC. The facts set forth in the pleading are based upon my review of the documents and information provided by CIESCO, Inc. and/or of which I have personal knowledge as counsel for CIESCO, This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Date: August 19, 2003 By: CERTIFICATE OF SERVIC~ I HEREBY CERTIFY that I served a true and correct copy of the foregoing ANSWER TO NEW MATTER upon counsel of record this 19th day of August, 2003 by placing the same in the United States Mail, 1sT CLASS and CERTIFIED mail, postage prepaid., addressed as follows: Stephen L. Grose, Esquire Keefer Wood 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 SHERIFF'S RETURN - REGULAR CASE NO: 2003-03531 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CIESCO INC VS FIDELITY AND DEPOSIT CO OF MD JASON VIOP~AL , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE was served upon CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL DEFENDANT , at 1412:00 HOURS, at 110 OLD WILLOW MILL ROAD MECHANICSBURG, PA 17055 KAREN YESELAVAGE, BUSINESS Sheriff or Deputy Sheriff of who being duly sworn according to law, on the 28th day of July by handing to MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE the , 2003 together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 6.21 Affidavit .00 Surcharge 10.00 .00 34.21 Sworn and Subscribed to before me this ~ ~- day of ~¢~ ~, ~0~.~ A.D. So Answers: R. Thomas Kline 07/29/2003 LARRY L MILLER By: ELLSWORTH, CARLTON, MIXELL & WALDMAN, BY: ROBERT T. CARLTON, JR., ESQ. Attorney I.D. No.: 25050 1105 Berkshire Boulevard, Suite 320 Wyomissing, PA 19610 (610) 374-1135 CIESCO, INC. Plaintiff, FIDELITY AND DEPOSIT COMPANY OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL Defendants. Attorneys for Defendant Fidelity & Deposit Company of Maryland COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 03-3531 - LAW ENTRY OF APPEARANCR TO THE PROTHONOTARY: Kindly enter this firm's appearance on behalf of Defendant Fidelity and Deposit Company of Maryland in this civil action. Ellsworth, Carlton, Mixell & Waldman, P.C. August 22, 2003 obert T. Carlto~n, Jr. Attorneys for Defendant Fidelity and Deposit Company of Maryland ELLSWORTH, CARLTON, MIXELL & WALDMAN, BY: ROBERT T. CARLTON, JR., ESQ. Attorney I.D. No.: 25050 1105 Berkshire Boulevard, Suite 320 Wyomissing, PA 19610 (610) 374-1135 P.e. Attorneys for Defendant Fidelity & Deposit Company of Maryland CIESCO, INC. Plaintiff, Vo FIDELITY AND DEPOSIT COMPANY OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL Defendants. COURT OF COMMON PLEAS OF CUMBERLANiD COUNTY, PENNSYLVANIA r~ N 03-3531 - LAW CIVIL AC..IO NO: ENTRY OF A~PE/~ANCE TO THE PROTHONOTARY: Kindly enter this firm's Fidelity and Deposit Company appearance on behalf of Defendant of Maryland in this civil action. Ellsworth, Carlton, Mixell & Waldman, P.C. Robert T. , Jr. Attorneys for Defendant Fidelity and Deposit Company of Maryland August 22, 2003 ELLSWORTH, CARLTON, MIXELL & WALDMAN, BY: ROBERT T. CARLTON, JR., ESQ. Attorney I.D. No.: 25050 1105 Berkshire Boulevard, Suite 320 Wyomissing, PA 19610 (610) 374-1135 P.e. Attorneys for Defendant Fidelity & Deposit Company of Maryland CIESCO, INC. Plaintiff, Vo FIDELITY AND DEPOSIT COMPANY OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL Defendants. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 03-3531 LAW CERTIFICATE OF SERVICE I, Robert T. Carlton, Jr., certify that on August 22, 2003, I caused a true and correct copy of the foregoing entry of appearance to be served today by first class mail upon each of the following: Larry L. Miller, Esquire Cumberland Perry Vocational 1423 State Road Technical School Duncannon, PA 17020 110 Old Willow Mill Road Mechanicsburg, PA 17055 Larry L. Miller, Esquire Pa. Supreme Court I.D. No. 28122 1423 State Road Duncannon, PA 17020 Telephone: [717] 957-2828 Attorney for Plaintiff: CIESCO, Inc. CIESCO, INC. Plaintiff FIDELITY AND DEPOSIT COMPANY OF MARYLAND 300 Saint Paul Place, POB 1227 Baltimore, MD 21202 CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL Defendants IN THE COURT OF COMMON PLEAS CUMBERI~AN-D COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03--3531 Civil Term I, LARRY L. MILLER, counsel for Plaintiff, CIESCO, Inc., solemnly affirm and swear under the penalties of perjury and upon personal knowledge that I am over eighteen years of age and that on July 29, 2003, I served a true and correct copy of the Complaint upon the out-of-state Defendant, Fidelity' and Deposit Company of Maryland, via first class and certified mail, addressed to 300 Saint Paul Place, P.O. Box 1227, Baltimore, MD 21202. While the signed certified return receipt card has never been returned to our office, neither has the certified or the first class mailing been returned as undeliverable. A true and correct copy of the July 29, 2003 service letter is attached hereto as/~xhibit "A.- Date: September 30, 2003 By: LAR~ L.~ILLER ~ 2 MILLER LAW OFFICES, P.C. l~enmylvania Office 1423 State Road Duncannon, PA 1702 717 957 2828 Fax 717 957 4843 00~ · 2 EMAIL Ihn@epix.net 7/~9/fl3 #4fitlY.. ~ ,84 3875 44 I )000 8543 New Jersey Office - Suite 108, 50 Che~mut Ridge Rd, Montvale, NJ07645 201 476 9089 Fax 201 573 1062 July 29, 2003 Fidelityland Deposit Company of Maryland 300 Saint Paul Placce PCB 1227 Baltimore, MD 21202 Re: ClESCO v. Fidelity and Deposit Comoanv of Maryland. et Docket No. 03-3531 Civil Term ' ' Our File #4001.2 Dear Sir or Madam: I enclose and serve upon you a true and correct copy of the Complaint filed in the above-referenced matter. Enclosure , Since~rely'/ _ La'rr~ L.~.Miller cc: Fidelity and Deposit Co. of Md (with enclosure via ~lv' class mail) EXHIBIT A IN RE: : PETITION OF MOHD SHAFIQ : MOHD NOOR : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-3535 CIVIL TERM CIVIL ACTION - LAW IN RE: HEARING CONTINUED ORDER OF COURT AND NOW, this 1st day of October, 2003, hearing herein is continued to give the petitioner the opportunity to make publication. October 23rd, 2003, Continued hearing is set for Thursday, at 11:30 a.m. By the Court, y n A.Hess, J. ~ohd Shafiq Mohd Noor 1725 Douglas Drive Carlisle, PA 17013 :mae ELLSWORTH, CARLTON, MIXELL & WALDMAN, P.C. BY: ROBERT T. CARLTON, JR., ESQ. Attorney I.D. No.: 25050 1105 Berkshire Boulevard, Suite 320 Wyomissing, PA 19610 (610) 374-1135 Attorneys for Defendant Fidelity & Deposit Company of Maryland CIESCO, INC. : : Plaintiff, : FIDELITY AND DEPOSIT COMPANY OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL Defendants. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 03-3531 LAW NOTICE TO PLEAD TO: Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 Attorney for Plaintiff You are hereby notified to file a written response to the enclosed new matter within twenty (20) days from service hereof or a judgment may be entered against you. Ellsworth, Carlton, Mixell & Waldman, P.C. Robert T. Carlton, Jr. Attorneys for Defendant Fidelity & Deposit Company of Maryland ELLSWORTH, CARLTON, MIXELL & WALDMAN, P.C. BY: ROBERT T. CARLTON, JR., ESQ. Attorney I.D. No.: 25050 1105 Berkshire Boulevard, Suite Wyomissing, PA 19610 (610) 374-1135 320 Attorneys for Defendant Fidelity & Deposit Company of Maryland CIESCO, INC. : : Plaintiff, : FIDELITY AND DEPOSIT COMPANY OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL Defendants. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA CIVIL ACTION NO: 03-3531 - LAW DEFENDANT FIDELITY AND DEPOSIT COMPANY OF MARYLAND'S ANSWER AND NEW MATTER Defendant Fidelity and Deposit Company of Maryland ("F&D")answers the correspondingly numbered paragraphs of Plaintiff CIESCO, Inc.'s ("CIESCO") 1. Admitted. 2. Denied as stated. located at 3910 Keswick Road, 3. Denied as stated. Complaint as follows: F&D is a dorporation with offices Baltimore, Maryland. It is averred upon information and belief that the correct name of this Defendant is Cumberland Perry Area Vocational Technical School. 4. Admitted. COUNT I 5. Admitted in part, denied in part. and Kamand executed a payment bond. The speaks for itself and to the extent paragraph are inconsistent therewith, It is admitted that F&D bond being in writing that the averments of this those averments are denied. By way of further answer it is specifically denied that F&D was obligated to furnish a copy of the bond to CIESCO. Indeed, Section 6 of the Public Works Contractors' Bond Law of 1967 ("the Bond Law"), 8 P.S. ~ 196, sets forth the terms and conditions under which a claimant such as CIESCO may make application to the contracting body, in this case, Defendant Cumberland Perry Area Vocational Technical School, for a certified copy of the payment bond and the contract pursuant to which it was issued. CIESCO did not comply with those terms and conditions. 6. After reasonable investigation F&D is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph. 7. After reasonable investigation F&D is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph. 8. Denied. To the contrary, Jacobs has been paid for the materials that were used and incorporated into the project and has otherwise been paid according to the provisions of 62 Pa.C.S.A. ~ 3931-3939. 9. After reasonable investigation F&D is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph. 10. After reasonable investigation F&D is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph. By way of further answer, CIESC©'s averment that it is entitled to the recovery of interest is a conclusion of law to which no response is required and is therefore deemed denied. 11. Denied. It is denied CIESCO has complied with all conditions precedent for perfecting its claim and right of action under the bond. To the contrary, it is averred upon information and belief that CIESCO has not complied with the notice provisions of 8 P.S. ~ 194(b). 12. After reasonable investigation F&D is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph. 13. After reasonable investigation F&D is without knowledge or information sufficient to averments of this paragraph. averment that it is entitled form a belief as to the truth of the By way of further answer, CIESCO's to reasonable attorney's fees is a conclusion of law to which no response is required and is therefore deemed denied. WHEREFORE, Defendant Fidelity & Deposit Company of Maryland 3 demands that judgment be entered in its favor and against Plaintiff and that Plaintiff's Complaint be dismissed with CIESCO, Inc. prejudice. COUNT II 14. F&D incorporates by reference the averments of its answers to paragraphs 1 through 13 of CIESCO's Complaint. 15. The averments of this paragraph are conclusions of law to which no response is required and are therefore deemed denied. 16. Admitted in part, denied in part. It is admitted that a true and correct copy of CIE$CO's letter of June 19, 2003 is attached as Exhibit "A" to CIESCO's Complaint. After reasonable investigation F&D is without knowledge or information sufficient to to the truth of the remaining averments of this form a belief as paragraph. 17. After reasonable investigation F&D is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph. By way of further answer it is specifically denied that F&D was obligated to furnish a copy of the bond to CIESCO. Indeed, Section 6 of the Bond Law, 8 P.S. ~ 196, sets forth the terms and conditions under which a claimant such as CIESCO may make application to the contracting body, in this case, Defendant Cumberland Perry Area Vocational Technical School, for a certified copy of the payment bond and the contract pursuant to which it was issued. CIESCO did not comply with those terms and The averments of this paragraph are conclusions require a response and are therefore deemed conditions. 18. Denied. of law which do not denied. 19. Denied. The averments of this paragraph are conclusions of law which do not require a response and are therefore deemed denied. By way of further answer, it is specifically denied that F&D has ignored CIESCO's claim. 20. Denied. The averments of this paragraph are conclusions which do not require a response and are therefore deemed Denied. The averments of this paragraph are conclusions do not require a response and are therefore deemed The averments of this paragraph are conclusions do not require a response and are therefore deemed of law denied. 21. of law which denied. 22. Denied. of law which denied. 23. After reasonable investigation or information sufficient to form a belief as to the averment that CIESCO was forced to instJ_tute this F&D is without knowledge truth of the action. The remaining averments of this paragraph are conclusions of law which do not require a response and are therefore deemed denied. 24. Denied. The averments of this paragraph are conclusions of law which do not require a response and are therefore deemed denied. 25. of law which do not denied. WHEREFORE, Defendant Fidelity & Deposit Denied. The averments of this paragraph are conclusions require a response and are therefore deemed Company of Maryland demands that judgment be entered in its favor and against Plaintiff that Plaintiff's Complaint be dismissed with CIESCO, Inc. and prejudice. COUNT III 26 - 42. The averments of these paragraphs are addressed to and relate to another Defendant and therefore do not require a response from F&D. 43 47. and relate to another Defendant response from F&D. 48 - 52. and relate to COUNT IV The averments of these paragraphs are addressed to and therefore do not require a COUNT V The averments of these paragraphs are addressed to another response from F&D. Defendant and therefore do not require a COUNT VI 53 54. The averments of these paragraphs are addressed to and relate to another Defendant and therefore do not require a response from F&D. 6 COUNT VII 55. F&D incorporates by reference the answers to paragraphs 1 through 54 of CIESCO's 56. The averments of relate to another Defendant require a response from F&D. averments of its Complaint. this paragraph are addressed to and and a non-party and therefore do not 57. The averments of relate to another Defendant and a require a response from F&D. 58. The averments of relate to another Defendant require a response from F&D. 59. The averments of relate to another Defendant require a response from F&D, 60. Denied. this paragraph are addressed to and non-party and therefore do not this paragraph are addressed to and and a non-party and therefore do net this paragraph are addressed to and and a non-party and therefore do not The averments of this paragraph are conclusions of law which do denied. 61. After not require a response and are therefore deemed reasonable investigation F&D is without knowledge or information sufficient averments of this 62. Denied. knowledge or truth of the averments of this paragraph. to form a belief as to the truth of the paragraph. After reasonable investigation F&D is without information sufficient to form a belief as to the By way of further answer 7 196, sets forth the such as CIESCO may it is specifically denied that F&D was of the bond to CIESC©. Indeed, Section 6 of the Bond Law, terms and conditions under which a make application to tke this case, Defendant Cumberland Perry Area School, for a certified copy of pursuant to which it was issued. terms and conditions. 63. Denied. The averments of law denied. obligated to furnish a copy 8 P.S. ~ claimant contracting body, in Vocational Technical the payment bond and the contract CIESCO did not comply with those of this paragraph are conclusion which do not require a response and are therefore deemed By way of further answer F&D incorporates by reference the averments of its answer to paragraph 62 of CIESCO's Complaint. 64. Denied. The averments of this paragraph are conclusions of law which do not require a response and are therefore deemed denied. By way of further answer F&D incorporates by reference the averments of its answer to paragraph 62 of CIESCO's Complaint. 65. Denied. The averments of this paragraph are conclusions of law which do not require a response and are therefore deemed denied. By way of further answer F&D incorporates by reference the averments of its answer to paragraph 62 of CIESCO's Complaint. 66. Denied. The averments of this paragraph are conclusions of law which do not require a response and are therefore deemed denied. By way of further answer F&D incorporates by reference the averments of its answer to paragraph 62 of CIESCO's Complaint. of denied. 68. 67. Denied. The averments of this paragraph are conclusions law which do not require a response and are therefore deemed Denied. The averments of this paragraph are conclusions of law which do not require a response and are therefore deemed denied. 69. Denied. The averments of this psragraph are conclusions of law which do not require a response and are therefore deemed denied. WHEREFORE, Defendant Fidelity & Deposit Company of Maryland demands that judgment be entered in its favor and against Plaintiff CIESCO, Inc. and that prejudice. Plaintiff's Complaint be dismissed with COUNT VIII 70 - 76. The averments of these paragraphs are address to and relate to another Defendant and therefore do not require a response from F&D. NEW MATTER 77. The Complaint and each Count thereof fails to state a claim upon which relief can be granted. 78. Section 4(a) of the Bond Law provides that a claimant may not bring an action upon a payment bond "before the expiration of ninety days after the day on which such claimant performed the last of such labor or furnished the last of such materials for which he 9 claims payments,..." 8 P.S. § 194(a). 79. At the time CIESCO commenced this civil action, 2003, last 80. right 81. July 24, ninety days had not expired since the day on which CIESCO furnished materials for which it claims payment. Therefore, CIESCO brought this civil action before it had to do so and this civil action should be dismissed. CIESCO has failed to mitigate its damages. 82. CIESCO's applicable statute 83. CIESCO'S Pa.C.S.A. § 3939(b) made payment to the claims are barred in whole or in part by the of limitations. claims are barred in whole or in part by 62 this subchapter [Subchapter D General Procurement Provisions, claims for payment against the surety by parties owed payment from which provides that: "Once a contractor has subcontractor according to the provisions of of Chapter 39 of Pennsylvania's 62 Pa.C.S.A. ~ 3901-3942], future contractor and or the contractor's the subcontractor which has been paid in full shall be barred." 84. It is averred upon information and Construction, Inc. has made payment to its belief that Kamand subcontractor Jacob Construction according to the provisions of Subchapter D of Chapter 39 of Pennsylvania's General Procurement Provisions. 85. Accordingly, any claim by CIE$CO against F&D is barred. 86. CIESCO'S claims are barred in whole or in part by the applicable statute of limitations. 10 B7. CIESCO's claims are barred in whole or in part by its failure to give timely notice of its claims as required by Section 4(b) of the Bond Law, 8 P.S. ~ 194(b). 88. Kamand's liability as principal is primary and F&D's liability as surety is secondary, accorc[ingly all of Kamand's defenses, set-offs and counterclaims inure ~o F&D's benefit and F&D incorporates those defenses, set-offs and counterclaims by reference. WHEREFORE, Defendant Fidelity & Deposit Company of Maryland demands that judgment be entered in its favor and against Plaintiff and that Plaintiff's Complaint be dismissed with CIESCO, Inc. prejudice. Ellsworth, Carlton, Mixell & Waldman, P.C. Attorneys for Defendant Fidelity & Deposit Company of Maryland l! VERIFICATION I, W. Glenn Speicher, Jr., Esquire, state that I am Senior Claims Counsel for Zurich North America's Surety and Financial Claims Unit which is responsible for all claims handling in connection with bonds written by Fidelity and Deposit Company of Maryland. I am authorized to make this verification on Fidelity and Deposit Company of Maryland's behalf. Ail of the facts set forth in the foregoing answer and new matter are true and correct to the best of my knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S. ~ 4904 relating to unsworn falsification to authorities. Dated: September~/, 2003 ELLSWORTH, CARLTON, BY: ROBERT T. CARLTON, JR., ESQ. Attorney I.D. No.: 25050 1105 Berkshire Boulevard, Suite Wyomissing, PA 19610 (610) 374-1135 MIXELL & WALDMAN, P.C. 320 Attorneys for Defendant Fidelity & Deposit Company of Maryland CIESCO, INC. Plaintiff, Vo FIDELITY AND DEPOSIT COMPANY OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL Defendants. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 03-3531 - LAW CERTIFICATE OF SERVICE I, Robert T. Carlton, Jr., certify that on October 6, 2003, I caused a true and correct copy of the foregoing entry of appearance to be served today by first class mail upon each of the following: Larry L. Miller, Esquire Stephen L. Grose 1423 State Road Keefer Wood Allen & Rahal, LLP Duncannon, PA 17020 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108 Robert T. , Jr. L~%RRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. No. 28122 1423 State Road Duncannon, PA 17020 Telephone: [7171957-2828 Attorney for Plaintiff: CIESCO, INC. CIESCO, INC. Plaintiff FIDELITY AND DEPOSIT COMPANY OF MARYLAND CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL Defendants IN THE COURT OF COMMON PLEAS CUMBERlaND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03-3531 Civil Term ANSWER OF CIESCO, INC. TO NEW MATTER OF FIDELITY AND DEPOSIT COMPANY OF MARYLAND CIESCO, hereby answers the New Matter of Maryland as follows: 77. Denied. state an incorrect conclusion of 78. Denied as stated. 79. Inc. ("CIESCO"), by and through its counsel, Fidelity and Deposit Company of The averments set forth in paragraph 77 law and accordingly, are denied. Denied. The averments set forth in paragraph 79 are specifically denied and proof thereof is demanded. 80. Denied. The averments state an incorrect conclusion of law. 81. Denied. The averments state an incorrect conclusion of law. 82. Denied. The averments state an incorrect conclusion of law. 83. Denied. specifically denied. set forth in paragraph 80 set forth in paragraph 81 set forth in paragraph 82 The averments set forth in paragraph 83 are On the contrary, Kamand Construction, Inc. continues to owe Jacobs more than sufficient funds to pay CIESCO's claim in full. 84. Denied. specifically denied. Jacobs more than sufficient 85. Denied. The state an incorrect conclusion of law. 86. Denied. The averments state an incorrect conclusion of law. 87. Denied. The averments state an incorrect conclusion of law. 88. Denied. The averments state an incorrect conclusion of law. The averments set forth in paragraph 84 are On the contrary, Kamand continues to owe funds to pay CIESCO's claim in full. averments set forth in paragraph 85 set forth in paragraph 86 set. forth in paragraph 87 set forth in paragraph 88 WHEREFORE, CIESCO, Inc. Honorable Court enter judgment in and Deposit Company of Maryland. DATE: October 10, 2003 respectfully requests that this its favo~ and against Fidelity By: ~ J LLER VERIFICATION I, LARRY L. MILLER, have prepared the foregoing ANSWER OF CIESCO, INC. TO NEW MATTER OF FIDELITY AND DEPOSIT COMPANY OF MARYLAND. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this Verification on behalf of my client, CIESCO, INC. The facts set forth in the pleading are based upon my review of the documents and information provided by CIESCO, Inc. and/or of which I have personal knowledge as counsel for CIESCO, Inc. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Date: October 10, 2003 By: Ii~RRY ~. MILLE CERTIFICATE OF SERVICSi I HEREBY CERTIFY that I served a true and correct copy of the foregoing ANSWER TO NEW MATTER upon counsel of record this 10th day of October, 2003 by placing the same in the United States Mail, 1sT CLASS and CERTIFIED mail, postage prepaid, addressed as follows: VIA 1sw CLASS MAIL: Robert T. Carlton, Esquire Ellsworth, Carlton 1105 Berkshire Boulevard, Suite 320 Wyomissing, PA 19610 Stephen L. Grose, Esquire Keefer, wood 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLABD COUNTY Please list the following case: (Check one) ( ) for JURY trial at the next term of civil court. ( X ) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) CIESCO, Inc. (check one) (X) Civil Action - Law ( ) Appeal from Arbitration ( ) ( other ) (Plaintiff) VS. Fidelity & Deposit Company of Maryland and Cumberland Perry Vocational Technical School ( Defendant ) VS. The trial list will be called on and Trials corNnence on Pretrials will be held on (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 03-3531Civil Term ~ Indicate the attorney who will try case for the party who files this praecipe: Larry L. Miller, Esquire Indicate trial counsel for other parties if known: Robert Carlton, Esq. and Stephen Grose, Esq. This case is ready for trial. Signed: ~ a~r Print Name: y L. Miller, Esq. Date: 4/1 4/04 Attorney for: CIESCO, Inc. CIESCO, INC., Plaintiff VS. FIDELITY & DEPOSIT CO. OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-3531 CIVIL CIVIL ACTION - LAW IN RE: NONJURY TRIAL ORDER AND NOW, this 2 / ' day of April, 2004, a pretrial conference in the above captioned matter is set for Thursday, May 27, 2004, at 9:00 a.m. in the Chambers of the undersigned. BY THE COURT, arry L. Miller, Esquire For the Plaintiff M~obert Carlton, Esquire ,/S~ephen Grose, Esquire For the Defendants Court Administrator :rim tess, J. · :iC CIESCO, INC., : Plaintiff : VS. : FIDELITY & DEPOSIT CO. OF : MARYLAND and CUMBERLAND: PERRY VOCATIONAL : TECHNICAL SCHOOL, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COLffqTY, PENNSYLVANIA 03-3531 CIVIL CIVIL ACTION - LAW IN RE: NONJURY TRIAL ORDER AND NOW, this /$ ' day of May, 2004, pretrial conference in the above captioned matter set for May 27, 2004, is continued to Wednesday, June 2, 2004, at 9:00 a.m. in the Chambers of the undersigned. darry L. Miller, Esquire For the Plaintiff tebert Carlton, Esquire phen Grose, Esquire For the Defendants BY THE COURT, tess, J. Court Administrator :rlm CIESCO, INC., Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-3531 CIVIL CIVIL ACTION - LAW FIDELITY & DEPOSIT CO. OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL, Defendant IN RE: NONJURY TRIAL ORDER AND NOW, this 2 t ~ day of May, 2004, pretrial conference in the above captioned matter set for June 2, 2004, is continued to Wednesday, June 16, 2004, at 1:30 p.m. in the Chambers of the undersigned. /~//~arry L. Miller, Esquire For the Plaintiff o~,o_b~ert Carlton, Esquire Stephen Grose, Esquire For the Defendants Court Administrator BY THE COURT, :rim FiLE~OFFiCE 20~1~ ['I?,¥ 21 Pi:i 3:36 CUb!: i '.:i ELLSWORTH, CARLTON, MIXELL & WALDMAN, BY: ROBERT T. CARLTON, JR., ESQ. Attorney I.D. No.: 25050 1105 Berkshire Boulevard, Suite 320 Wyomissing, PA 19610 (610) 374-1135 Attorneys for Defendant Cumberland Perry Area Vocational and Technical School CIESCO, INC. Plaintiff, FIDELITY AND DEPOSIT COMPANY OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL Defendants. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL A~TION NO: 03-3531 - LAW TO THE PROTHONOTARY: Kindly Cumberland action. ENTRY OF APPEARANC~ enter this firm's appearance on behalf of Defendant Perry Area Vocational Technical School in this civil Ellsworth, Carlton, Mixell & Waldman, P.C. June 4, 2004 Robert T. Carlton, Jr. Attorneys for Defendant Cumberland Perry Area Vocational and Technical School KEEFER WOOD ALLEN & RAHAL, LLP BY: STEPHEN L. GROSE, ESQ. Attorney I.D. No.: 31006 415 Fallowfield Road, Suite 301 Camp Hill, PA 17011-4906 (717)612-5802 CIESCO, INC. Plaintiff, FIDELITY AND DEPOSIT COMPANY OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL Defendants. Attorneys for Defendant Cumberland Perry Area Vocational and Technical School COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 03-3531 - LAW WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly note the withdrawal of this firm's appearance on behalf of Defendant Cumberland Perry Area Vocational Technical School in this civil action. May 14, 2004 KEEFER WOOD ALLEN & RAHAL, LLP ~te~ken L. Grose Attorneys for Defendant Cun~berland Perry Area Vocational and Technical School ELLSWORTH, CARLTON, MIXELL & WALDMAN, BY: ROBERT T. CARLTON, JR., ESQ. Attorney I.D. No.: 25050 1105 Berkshire Boulevard, Suite 320 Wyomissing, PA 19610 (610) 374-1135 CIESCO, INC. Plaintiff, Vo FIDELITY AND DEPOSIT COMPANY OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL Defendants. P.e. Attorneys for Defendant Fidelity & Deposit Company of Maryland COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION NO: 03-3531 - LAW caused a true Appearance to following: Larry L. Miller, 1423 State Road Duncannon, CERTIFICATE OF SERVICE Robert T. Carlton, Jr., certify that on June 4, 2004, I and correct copy of the foregoing Withdrawal of be served by first class mail upon each of the Esquire PA 17020 Stephen L. Grose Keefer Wood Allen & Rahal, 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108 LLP R~bert T. Carlton, Jr. ELLSWORTH, CARLTON, MIXELL & WALDMAN, P.C. BY: ROBERT T. CARLTON, JR., ESQ. Attorney I.D. No.: 25050 1105 Berkshire Boulevard, Suite 320 Wyomissing, PA 19610 (610) 374-1135 Attorneys for Defendants Fidelity and Deposit Company of Maryland and Cumberland Perry Area Vocational Technical School CIESCO, INC. Plaintiff, FIDELITY AND DEPOSIT COMPANY OF MARYLAND and CUMBERLAND PERRY VOCATIONAL TECHNICAL SCHOOL Defendants. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 03-3531 - LAW PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned civil discontinued and ended. action settled, Miller La~ Offices By: / La~ L(. Miller Attorneys for Plaintiff CIESCO, Inc. Ellsworth, Carlton, Mixell & Waldman, P.C. Robert T. Carlton,¥Jr. Attorneys for Defendants Fidelity & Deposit Company of Maryland and Cumberland Perry Area Vocational Technical School