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HomeMy WebLinkAbout07-5446 RarMal G. Gale, Esquire Attorney I.D. #26149 Corey J. Adamson, Enquire Attorney I.D. #204508 THOMAS, TH011~45 8 HAFER, LLP P.O. Box 999 Hartisburg, PA 17108-0999 717-255-7639 cadamson~tthlaw.com Attorneys for Pia~ifF CUMBERLAND DISTRICT, v VALLEY SCHOOL Plaintiff BRT, INC. and FARM AND HOME OIL COMPANY; Defendants CIVIL ACTION -LAW JURY TRIAL DEMANDED 1~R}IEGPf FOit 1~MRIT OIF S[!1S TO THE PROTHONOTARY: Kindly issue Writs of Summons in the above-captioned action directed to BRT, Inc. and Farm and Home Oil Company. The Writs of Summons shall be issued and forwarded to the Sheriff of Cumberland County for service on the Defendants. Respectfully submitted, THOMAS, THOMAS &HAFER, LLP I.D. # 204508 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7639 Attorneys for Plaintiff DATE: 530724.1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA By: nd I~f ale, Esquire I.D. 2 49 Co J. Adamson, Esquire ns ~F # °-~ i~ t i ~~ W ~ ~ ~' G - S1~ ~ r- ~; D S v ~ ~ ~ ^' ca CUMBERLAND DISTRICT, v VALLEY SCHOOL ~ Plaintiff BRT, INC. and FARM AND HOME OIL COMPANY; Defendants. TO DEFENDANT, BRT, INC., 813 North Octorara Trail, Parkesburg, PA 19365-0419: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. (~7- 5+~41o Ci v ~ 1 T~er,i-n CIVIL ACTION -LAW JURY TRIAL DEMANDED WRIT aF S~JIVIl~ONS YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. othonotary Date: q/~g/p7 By: Deputy CUMBERLAND DISTRICT, v VALLEY SCHOOL Plaintiff BRT, INC. and FARM AND HOME OIL COMPANY; Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. ~~" 5 X44 Civil T~e~r~ CIVIL ACTION -LAW JURY TRIAL DEMANDED I~' QF SiTl~~i' TO DEFENDANT, FARM AND HOME OIL COMPANY, 3115 State Road, Telford, YA 18969: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. othonotary Date: 9/IS/o7 By: eputy ~b9. N ° ~ ~ J ~ m~ t ~ v ~ r ~ - !! ~ F ~ .i,^ ~„~ ~ O ~. i ~ ;ter C . A , _ ~ ~ a ,~ c? SHERIFF'S RETURN - OUT OF COUNTY CASE N0: 2007-05446 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CUMBERLAND VALLEY SCHOOL DIST VS BRT INC ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT BRT INC but was unable to locate Them to wit: in his bailiwick. He therefore deputized the sheriff of CHESTER serve the within WRIT OF SUMMONS County, Pennsylvania, to On October 12th 2007 this office was in receipt of the attached return from CHESTER Sheriff ' s Costs : So answe ~,,...•,^,:`-=--~ .r-~==~""' Docketing 18.00 ,,/' Out of County 9.00 -'` Surcharge 10.00 Thomas K in Dep Chester County 47.84 Sheriff of Cumberland County Postage 1.74 86.58 / rv13vjo7 ~. 10j12j2007 THOMAS THOMAS HAFER Sworn and subscribe to before me this day of A.D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-05446 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CUMBERLAND VALLEY SCHOOL DIST VS BRT INC ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT FARM AND HOME OIL COMPANY to wit: but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of MONTGOMERY serve the within WRIT OF SUMMONS County, Pennsylvania, to On October 12th 2007 this office was in receipt of the attached return from MONTGOMERY . Sheriff ' s Costs : So answer -~ ... - ~.,--r Docketing 6.00 -- ~- --~" ~ Out of County 9 . 00 -~ 11 --- -~ `~~~~~ ' ~~ Surcharge 10.00 R.~Thomas Kline Dep Montgomery Co 33.00 Sheriff of Cumberland County .00 10/12/2007 ~~_` THOMAS THOMAS HAFER Sworn and subscribe to before me this day of , A.D. ,~ ~. , ,~ .~ ~ , , n ~~^~~~~~ Date - - 9°"z ~ °- ~-~~ ~n The Court of Con~gnon Pleas of Cumberland County, Pen~sylvan~-~ CtanbArland Vallsy School District ~ ~ ~ ~~ yy vs. Receipt No. ,.~ l ast;~ay to se~vite ~ o -~ ~L-o -7 BRT Inc st al 07-5446 civil SERVE : BRT Inc . N o . Now, S~t~nbA..x 20, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of ChAstsr County to execute this- Writ, this deputation being made at the request and risk of the Plaintiff. ~ ~ v ~~ Sheriff of Cumberland County, PA ,~., =~ "ir`y~;, Please mail return of service to Cumberland County Sheriff. Tharp y~` ~ b Affidavit of Service © ~: Now, .~~PrEi"I~f R ~ S ~ , 20 o 7 , at /a ~ ~ P o'clock /° M. served the within l/~I~Z ~ ~f S ~i/t?~N S upon ~ /~ /"~ ~'i'.' C . at ~ /!/. Q Cpl/ /~'~ ~ ~~~L ~ , ~!~-'/~/~ ~ S~~L /`~ ~ by handing to a ~R ~' ~ copy of the original ~~ ~ ~ ohs and made known to ~~~ ~ ~ G--ODf~ Y~~ ~ the contents thereof. NOTARIAL SEAL Rebecca S. Yepremian, Notary Public West Chester Boro., Chester County My commission expires August ~, '~C~J8 Sworn and subscribe before me thi~~~iay of - 20 p]~ ~. So answers, `~ '!~ i~'~ O£ ~t7~Sheriff of C~ ~ S ~f.:! County, PA COSTS SERVICE $ MILEAGE AFFIDAVIT `. Iin The Court of Common Pieas of Cumberland County, Pennsylvania CtianbQrland Valley School District VS. BRT Inc ~t al SERVE: No, 07-5446 civil Fa=m and HamQ Oil Company Now, s~t~,bQr 20, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of r~ont9cxn~ry County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~~ ~~ Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, , 20 , at o'clock M. served the within upon at by handing to a ~ copy of the original and made known to the contents thereof. So answers, Sheriff of Sworn and subscribed before me this day of , 20 COSTS SERVICE _ MILEAGE _ AFFIDAVIT County, PA NUMBER: D- 3459 Y DATE:10-02-07 COMMONWEALTH OF PENNSYLVANIA COUNTY OF MONTGOMERY Cumberland Valley School District Vs Farm & Home Oil Company 3115 State Rd. Telford, PA 18969 ,moo ~erbice ~co att~~ner~... ~~ P, gym ~~jeriff of ~totttgottterp ~Countp On September 26, 2007 @ 14:10 the deputy returnd because the address is in Bucks County. Deputy Zappala ,,. r'~ CUMBERLAND VALLEY SCHOOL DISTRICT Plaintiff v. IN THE COURT OF COMMON PLEAS NO 07-5446 CIVIL TERM CIVIL ACTION-LAW BRT, INC. AND FARM AND HOME OIL COMPANY JURY TRIAL DEMANDED Defendants PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter our appearance on behalf of Defendant, BRT, INC. in this matter. RESPECTFULLY SUBMITTED: Do~'a~arcello (I.D. Number 36510) Sonya Kivisto (I.D. Number 92919) Marcello & Kivisto, LLC 1501 Commerce Ave. Carlisle, PA 17013 O: (717)240-3686 F: (717)258-4686 CERTIFICATE OF SERVICE I certify that the foregoing document in the within action was served upon the following by enclosing the same in an envelope addressed as follows, postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 19th day of November , 2007. Randal G. Gale, Esq. Thomas, Thomas & Hafer LLP P.O. Box 999 Harrisburg, PA 17108 Dougl arcello C ~, a T? r ~, ~' Fr, ~=; O ;_' .. "+C _r . a=> '"~ L'.. 1 -` O t~t~7 TJ ~~ CJ 'L ~l ~C7 J~ CUMBERLAND VALLEY SCHOOL DISTRICT Plaintiff v. IN THE COURT OF COMMON PLEAS NO 07-5446 CIVIL TERM CIVIL ACTION-LAW BRT, INC. AND FARM AND HOME . OIL COMPANY JURY TRIAL DEMANDED Defendants PRAECIPE FOR RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Please issue a Rule against Plaintiff to file a complaint in the above-captioned matter or suffer judgment non pros. RESPECTFULLY SUBMITTED: -~~~~~ Douglas A~arcello (I.D. N ber 36510) Marcello & Kivisto, LLC 1501 Commerce Ave. Carlisle, PA 17013 O: (717)240-3686 F: (717)258-4686 TO THE PLAINTIFF A Rule is hereby issued against you to file Complaint in the above-captioned matter within 20 days of service of this Rule or suffer a judgment non pros. BY THE PROTHONOTARY: ~~ ,.. CERTIFICATE OF SERVICE I certify that the foregoing document in the within action was served upon the following by enclosing the same in an envelope addressed as follows, postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 19th day of November , 2007. Randal G. Gale, Esq. Thomas, Thomas & Hafer LLP P.O. Box 999 Harrisburg, PA 17108 1 . Marcello (~ C "' o °r~ ~,r ~ ~~ o ~~ ~-~ r=' C'.. ~ aC1~ rJ ' z- "-fir ~ R, ,c.._ "a ..~ LJ ~~, i ^~ r t ~ t. .e ,a° ~ Randall G. Gale, Esquire Attorney I.D. # Corey J. Adamson, Esquire Attorney I.D. #204508 THOMAS, THOMAS 8~ HAFER, LLP P.O. Box 999 Harrisburg, PA 17108-0999 717-255-7639 cadamson@tthlaw.com Attorneys for Plaintiff CUMBERLAND DISTRICT, v VALLEY SCHOOL Plaintiff BRT, INC.; FARM AND HOME OIL COMPANY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5446 CIVIL ACTION -LAW JURY TRIAL DEMANDED C~MPLAiNT AND NOW comes Plaintiff, Cumberland Valley School District, by and through its attorneys, Thomas, Thomas and Hafer, LLP, and respectfully files the instant Complaint, stating and averring as follows: 1. Plaintiff Cumberland Valley School District is a Pennsylvania political subdivision with a business address of 6746 Carlisle Pike, Mechanicsburg, PA 17050. 2. Defendant BRT, Inc. is a Pennsylvania corporation with a business address of 813 North Octorara Trail, Parkesburg, PA 19365-0419 and is engaged in the fuel oil delivery business. 3. Defendant Farm and Home Oil Company is a Pennsylvania corporation with a business address of 3115 State Road, Telford, PA 18969 and is a supplier of fuel oil. 4. Plaintiff operates the Middlesex Elementary School located at 250 North Middlesex Road, Carlisle, Pennsylvania 17013. 5. On or about September 19, 2005, Plaintiff placed an order for a shipment of oil with Defendant Farm and Home Oil Company, which order was made pursuant to the contract attached hereto as Exhibit A. 6. Defendant Farm and Home Oil Company contracted with Defendant BRT to deliver the subject oil to the Middlesex Elementary School. Attached hereto as proof of the fact of that agreement without admission of the contents of the document is the Bill of Lading (Exhibit B). 7. At all times relevant hereto, Defendant BRT, Inc. was acting on behalf of and as agent for Defendant Farm and Home Oil Company. 8. On or about September 20, 2005 Defendant BRT, Inc. made an oil delivery to the Middlesex Elementary School pursuant to its instructions from Defendant Farm and Home Oil Company pursuant to the contract to supply fuel oil entered into between Plainfiff Cumberland Valley School District and Defendant Farm and Home Oil Company. 9. At the time of the delivery, personnel from Defendant BRT, Inc. did not stick the oil tank to determine the amount of oil in the tank prior to pumping oil into the tank. 10. It is standard practice to take such a stick reading prior to pumping fuel oil on a commercial delivery such as this. 11. The BRT, Inc. Bill of Lading has a preprinted place for "Stick Reading" but the "Before" noted was not a stick reading even though it was possible to do a stick reading prior to pumping oil into the tank. 12. Instead of doing a stick reading, the personnel from the Defendant BRT, lnc. apparently relied on an interior gauge indicating 1,046 gallons present in the outside 10,000 gallon tank. 2 13. The personnel from the Plaintiff school district requesting the oil delivery did not know the reading on the interior gauge was incorrect on September 19, 2005 and September 20, 2005. 14. Had personnel from Defendant BRT, Inc. taken a stick reading as is customary for commercial fuel oil deliveries such as this one, Defendant BRT, Inc. would have known that the fuel oil requested would not have fit into the 10,000 gallon tank and the oil spill would have been avoided. 15. Despite having taken no stick reading, Defendant BRT, Inc.'s agents and employees proceeded to pump oil from the delivery truck into the oil tank at Middlesex Elementary School. 16. Due to Defendant BRT, Inc.'s failure to verify the gauge reading, as Defendant BRT Inc.'s employees and/or agents were pumping the oil into the outdoor above ground 10,000 gallon tank, oil began to spill out of the tank and onto the area surrounding the tank. 17. Contrary to statements of Defendant BRT, Inc. on the Bill of Lading stating that the spill consisted of 15 gallons of fuel oil, Plaintiff has been informed and therefore avers that the estimate of the total fuel oil volume release was a volume greater than 100 gallons and perhaps as high as several hundred gallons of fuel oil. 18. As a result of this fuel oil spill, the soil surrounding the subject tank was adversely impacted and contaminated. 19. As a result of this contamination, Plaintiff was forced to pay for extensive remediation and decontamination procedures at the spill site at a cost of approximately $122,626.90 Attached hereto as Exhibit C is a Summary of Expenses. 20. The damages in this case exceed the mandatory arbitration limits for Cumberland County. 3 COUNT ONE PLAINTIFF v. BRT, INC. NEGLIGENCE 21. Plaintiff Cumberland Valley School District incorporates by reference the averments of paragraphs 1 through 20 of this Complaint as if set forth at length herein. 22. Defendant BRT, Inc. owed Plaintiff Cumberland Valley School District a duty to safely and properly deliver the subject oil and pump the same into the school district's outdoor above ground oil tank without spilling the oil and causing environmental and property damage. 23. Defendant BRT, Inc. breached that duty to safely and properly deliver the subject oil and pump the same into the school district's outdoor above ground tank without spilling the oil and causing environmental and property damage. 24. Defendant BRT, Inc. through its agents was negligent and careless as follows: (a) Failure to take necessary precautions to prevent the oil spill in accordance with industry practice; (b) Failure to obtain a proper oil level reading of Plaintiffs oil tank prior to pumping the oil into the tank; (c) Failure to use a dip stick to get a measurement of the oil in the tank prior to pumping oil into the tank; (d) Failure to use reasonable care under the circumstances to adequately observe and monitor the oil being pumped into the subject oil tank and promptly observe and notice that oil was spilling out; (e) Failure to use reasonable care under the circumstances to promptly shut off the oil after it began to spill; (f) Failure to take adequate measures to minimize the impact of the oil spill; 4 :, ,, (g) Failure to ensure its delivery personnel possessed the necessary experience, skill and training to safely deliver oil without spilling; (h) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to obtain a correct oil level reading prior to pumping oil into the tank. (i) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to adequately observe and monitor the oil being pumped into the subject oil tank and promptly observe and notice that oil was spilling out; (j) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to promptly shut off the oil after it began to spill; (k) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to take adequate measures to minimize the impact of the oil spill. 25. Due to the causative negligence of Defendant BRT, Inc. as set forth herein, Plaintiff Cumberland Valley School District sustained the damages as set forth on Exhibit C. WHEREFORE, the Plaintiff Cumberland Valley School District demands judgment in its favor and against Defendant BRT, Inc. for an amount of damages in excess of Cumberland County arbitration limits. COUNT TWO PLAINTIFF v. FARM AND HOME OIL COMPANY NEGLIGENCE 26. The Plaintiff Cumberland Valley School District incorporates by reference the averments of paragraphs 1 through 25 of this Complaint as if set forth at length herein. 5 ,. .. 27. The Defendant Farm and Home Oil Company accepted an order for oil delivery to the Middlesex School of Cumberland Valley School District, said delivery to be made on September 20, 2005. 28. Defendant Farm and Home Oil Company owed Plaintiff Cumberland Valley School District a duty to safely and properly deliver the subject oil and pump the same into the school district's outdoor above ground oil tank, without spilling the oil and causing environmental and property damage. 29. Defendant Farm and Home Oil Company breached that duty to safely and properly deliver the subject oil and pump the same into the school district's outdoor above ground tank without spilling the oil and causing environmental and property damage. 30. Defendant Farm and Home Oil Company through its agents was negligent and careless as follows: (a) Failure to take necessary precautions to prevent the oil spill in accordance with industry practice; (b) Failure to obtain a proper oil level reading of Plaintiffs oil tank prior to pumping the oil into the tank; (c) Failure to use a dip stick to get a measurement of the oil in the tank prior to pumping oil into the tank; (d) Failure to use reasonable care under the circumstances to adequate{y observe and monitor the oil being pumped into the subject oil tank and promptly observe and notice that oil was spilling out; (e) Failure to use reasonable care under the circumstances to promptly shut off the oil after it began to spill; (f) Failure to take adequate measures to minimize the impact of the oil spill; 6 (g) Failure to ensure its delivery personnel possessed the necessary experience, skill and training to safely deliver oil without spilling; (h) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to obtain a correct oil level reading prior to pumping oil into the tank. (i) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to adequately observe and monitor the oil being pumped into the subject oil tank and promptly observe and notice that oil was spilling out; Q) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to promptly shut off the oil after it began to spill; (k) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to take adequate measures to minimize the impact of the oil spill. 31. Due to the causative negligence of Defendant Farm and Home Oil Company as set forth herein Plaintiff Cumberland Valley School District sustained the damages as set forth in Exhibit C. WHEREFORE, The Plaintiff Cumberland Valley School District demands judgment in its favor and against Defendant Farm and Home Oil Company in an amount of damages in excess of the Cumberland County Arbitration limits. COUNT THREE PLAINTIFF V. FARM AND HOME OIL COMPANY BREACH OF CONTRACT 32. The Plaintiff Cumberland Valley School District incorporates by reference the averments of paragraphs 1 through 31 of the Complaint as if set forth at length herein. 7 33. The Defendant Farm and Home Oil Company supplied the subject oil to Plaintiff pursuant to a contract for the supply of oil as set forth in Exhibit A.. 34. The Defendant Farm and Home Oil Company was the successful bidder to supply fuel oil to the Middlesex E{ementary School of the Cumberland Valley School District through the bidding process conducted through the Central Pennsylvania Energy Consortium during the 2005/2006 bid contract July 1, 2005 through June 30, 2006. 35. Under the supply contract entered into between Plaintiff Cumberland Valley School District and Defendant Farm and Home Oil Company the oil was to be delivered by Defendant Farm and Home Oil Company in a safe manner without spillage. 36. The Defendant Farm and Home Oil Company breached this contract by the following: (a) Failure to take necessary precautions to prevent the oil spill in accordance with industry practice; (b) Failure to obtain a proper oil level reading of Plaintiff s oil tank prior to pumping oil into the truck; (c) Failure to use a dip stick to get a measurement of the oil in the tank prior to pumping oil into the tank; (d) Failure to use reasonable care under the circumstances to adequately observe and monitor the oil being pumped into the subject oil tank and promptly observe and notice that oil was spilling out; (e) Failure to use reasonable care under the circumstances to promptly shut off the oil after it began to spill; (f) Failure to take adequate measures to minimize the impact of the oil spill; 8 (g) failure to ensure its delivery personnel possessed the necessary experience, skill and training to safely deliver oil without spilling; (h) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to obtain a correct oil level reading prior to pumping oil into the tank; (i} Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to adequately observe and monitor the oil being pumped into the subject oil tank and promptly observe and notice that oil was spilling out; (j} Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to promptly shutoff the oil after it began to spill; (k) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to take adequate measures to minimize the impact of the oil spill. 37. Paragraph 7 of the Central Pennsylvania Energy Consortium's "Instructions to Bidders" provided as follows: 7. Supplier shall be liable for any damages, overflow of oil, etc., done by their personnel. Successful bidder shall take the necessary precautions to prevent dripping or spillage. If spillage should occur bidder will accept liability for EPA/DER penalties. Retrieval of fuel not meeting specifications will be at supplier's expense. 38. Paragraph 9 of the conditions of Bid provided as follows: 9. The successful bidder will be responsible for any damage to property caused by the successful bidder or their agents. Supplier further covenants and agrees to assume and does hereby assume all liability for, and shall and does agree to, indemnify and save harmless the participants against any and all loss, costs, suits, claims, charges or damages arising from injuries sustained by mechanics, laborer, workmen or by any person 9 or persons, whatsoever, to their persons or property, whether employed in and about the said work or otherwise, by reason of accidents, damages or injuries, torts or by reason of the performance of this contract and the performance of said work and labor, including costs, counsel fees, and all expenses of defense, and agrees to cant' the usual Property Damage and Liability Insurance and to furnish certificates therefore, when required by the participants. 39. It was agreed that the Supplier Defendant Farm and Home Oil Company shall be liable for any damages regarding overflow of oil done by their personnel including accepting liability for EPA/DER penalties should spillage occur. 38. The Defendant Farm and Home Oil Company agreed as successful bidder that it would be responsible for damage to property caused by Defendant Farm and Home Oil Company or their agents. 39. As the supplier, Defendant Farm and Home Oil Company agreed to assume all liability for damages and indemnify and save harmless the participant Cumberland Valley School District against any and all loss or damages arising from injury to property by reason of accidents or performance of the contract and said work including costs, counsel fees and expenses. 40. Defendant Farm and Home Oil Company has breached its contract by failing to accept responsibility for damages regarding the overflow of oil done by their personnel. 41. The Defendant Farm and Home Oil Company has breached its contract by failing to pay for damage to property caused by Defendant Farm and Home Oil Company or their agents. 42. The Defendant Cumberland Valley School District has damages caused by the breach of contract of Defendant Farm and Home Oil Company as set forth above including costs of the cleanup and repairs to the site, (See Exhibit C), costs of suit and counsel fees. WHEREFORE, the Plaintiff Cumberland Valley School District demands judgment in its favor and against Defendant Farm and Home Oil Company. 10 Respectfully submitted, THOMAS, T OMAS ~ HAFER, LLP fi. By: all G. Gale, Esquire I.D.# 26149 Corey J. Adamson, Esquire I.D. # 204508 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7100; fax: 717-237-7105 Attorneys for Plaintiff DATE: 560671.1 11 VERIFICATION I, MICHAEL M. WILLIS, have read the foregoing COMPLAINT and hereby affirm that it is true and correct to the best of my personal knowledge or information and belief. This Verification and statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to sworn falsification to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa.C.S.§4904. Mich el M. Willy Dire for of Business Support Services Cum ,erland Valley School District Date: ~ I ~' © a 560909.1 CERTIFICATE OF SERVICE I, Randall G. Gale, Esquire, Thomas, Thomas & Hafer, do hereby certify that a copy of the foregoing document was served upon the following by enclosing a true and correct copy in envelopes addressed as follows, postage prepaid, and depositing same in the United States Mail at Harrisburg, Pennsylvania on the _~~~ day of ~, _, 2008. Douglas B. Marcello, Esquire MARCELLO & KIVISTO, LLC 1501 Commerce Avenue Carlisle, PA 16915 Farm and Home Oil Company 3115 State Road P.O. Box 389 Telford, PA 18969 THOMAS, THOMAS & HAFER, LLP By ndall G. Gale, Esquire 12 A 3115 state Road P.O. Sox 389 Teiford, PA 16968 215/257-0131 Fax: 2151257-2088 h i tP : /lwww. t h o i l. c o m/ Lower bucks Division 210 ~.evittown Parkway ~~ittown, PA 19054 2i 51943-0772 Fax: 215/943-2660 Milton Division P.O. Box 60 Milton, PA 17647 570na2-6715 Fax: 570,742-3663 Macungie Division P.O. Box 146 Macungie, PA 16062 6101965-6076 Fax: 810/965-7099 Pottstown Division 552 N. Mana#awny 5ireat Pottstown, PA 19464 6101326-4641 Fax: 810/970-0744 June 3, 1005 Mr. Paul L. Zeigler Central PA Energy Consortium and Capital Area IU 55 Miller Street Summerdale, PA 17093 Dear Mr. Zeigler: Please accept this letter as confirmation that Farm & Home Oil Company will furnish the products listed on the enclosed report with the exception of fuel oil to Dauphin County. These gallons were awarded to ISO Bunkers and not Farm & Home Oil Company. We have also enclosed our performance bond and certificate of insurance as requested. Thank you for the opportunity to participate in this joint purchasing program. Sincerely yours, Farm ome Oil Company ~~ Rodne Derstin , VP Supply & Distribution rd/dlf Enclosures 011 COMPANY Central Pennsylvania Energy Consortium (CPEC) Member Name Delivery Location 2005-2006 Fuel Supplies Bid Award by Vendor 2005-2006Usage 2004-2005 EstimatelGallons Usage Gallons Farm ~ Home Oil Company Cumberland Type of Fuel: Diesel, #2 Low Sulphur Transport Cumberland Valley School District Kauffmans Bus Service 55000 Cumberland Valley School District Millers Bus Service 70000 Hampden Township Highway Garage 65000 Total Estimate: ~ 19o,0ooi~Total Usage 0405: Type of Fuel: Diesel, #2 Low Sulphur 70/30 or 80120 Transport Lom~er Allen Township 22000 i Total Estimate: i~ 22,oo0/'fotal Usage 0405: - Typc of Fuel: Fuel Oil Transport Big Spring School District Big Spring High School 50000 Big Spring School District District Administrative Office Bldg 27000 Big Spring School District Frankford Elementary School 16000 Big Spring School District Mifflin Elementary School 11000 Big Spring School District Newville Elementary School 12000 Big Spring School District Oak Flat Elementary School 18000 Big Spring School District Plainfield Elementary School 17000 Carlisle Area School District Crestview Elementary 25000 Carlisle Area School District McGowan Building 7000 Carlisle Area School District North Dickinson 7800 Cumberland Valley School District Cumberland Valley High School 0 Cumberland Valley School District Eagle View Middle School 0 Cumberland Valley School District Good Hope Middle School D Cumberland Valley School District Green Ridge Elementary 25000 Cumberland Valley School District Middlesex Elementary 15000 Cumberland Valley School District Monroe Elementary 20000 Cumberland Valley School District Shaull Elementary 20000 Cumberland Valley School District Silver Spring Elementary 0 Cumberland-Perry Vo-Tech School Cumberland-Perry Vo•Tech School 50000 West Shore School District Allen Middle School 38000 West Shore School Districi Cedar Cliff High School 80000 West Shore School District Highland Elementary School 20000 West Shore School District Hillside Elementary School 20000 Tuesday, May 24, 2005 Pabe 1 of 19 i Requested By/Program MICHAEL .,~EFFENBACH CZJM~3ERLAND VALLEY SCHOOL DIST 6796 CARLISLE PIKE IyECHANICSBURG, PA 17050 PURCHASE ©RDER N0.06001008 O5-OE FISCAL YEAR THIS NUMBER M[lST APPEAR ON ALL CORRESPONDENCE, 2NVOICES & PACKAGES Ph: 717-697-8261 ext 3323 Far,: 717-795-8990 Ph: 800-821-6989 Fa>;: 215-257-2088 v E FARM & HOME OIL COMPANY [FARMHOME] N 3115 STATE RD D BOX 3 8 9 TELFORD, PA 18969 R Date 06/03/2005 s H MIDDLESEX. ELEMENTARY SCHOOL I 250 NORTH MIDDLESEX ROAD P CARLISLE, PA 17013 T ° Attn: BOB WHITZEL Phone:717-697-2362 UANTITY ITEM .'AND'.DESCRIPTSON U/M UNIT 'COST EXTENSION 1.00 2005-06 ESTIMATED GALLONS 15,000 OF FUEL OIL AS PER CPEC BID GALS 23076.000 23076.00 ate: MAIL TO: PAUL ZEIGLER, ESQUIRE, PO BOY, B, NEW CUMBERLAND PA 17070 Total 23:07-6'.00 M Dieffenbach, Business Myr PURCHASE ORDER TERMS & CONDITIONS Payment of invoices exceeding prices on PO will not be honoree without authorization prior to shipment. ACCOUNT DISTP,IBUTION 1U-2600-624-000-10-223-000-000-0000 23076.00 Central Pennsylvania Energy Consortium (CPEC) 2005-?006 Fuel Supplies Bid Ativard Report CPEC Member: Cumberland Valley School District Farm & Home Oil Company Contact: Rodney Derstine 3115 State Road Phone: 800 821-6489 BOX 389 Fax: 215 257-2088 Telford, PA 18969 Diesel, #2 Low Sulphur Transport Price per gallon: 1.594 Kauffmans Bus Service Jason Petroff Tank Size: Fill Pipe Size: Special Notes: 1565 Jerusalem Road 717_737-3396 10,000 4" Mechanicsburg, PA 17050 Dual Fuel Capable: ^ Above Ground Tank ^ Below Ground Tank 2005-2006 Estimate Gallons: 55000 Diesel, #2 Low Sulphur Millers Bus Service Allen Miller 1189 Boiling Springs Road 717-258-3371 Mechanicsburg, PA 17055 Dual Fuel Capable: ^ Above Ground Tank ^ 2005-2006 Estimate Gallons: 70000 Fuel Oil Shaull Elementary Bill Yeager 1920 Good Hope Road 717-732-2460 Enola, PA 17025 Dual Fuel Capable: ^ Above Ground Tank ^ 2005-2006 Estimate Gallons: 20000 Fuel Oil Monroe Elementary Matt West 1240 Boiling Springs Road 717-697-0028 Boiling Springs, PA 17007 Dual Fuel Capable: ^ Above Ground Tank ^ 2005-2006 Estimate Gallons: 20000 Transport Pt•ice per gallon: 1.594 Tank Size: Fill Pipe Size: Special Notes: 10,000 4" Below Ground Tank Transport Price per gallon: 1.5384 Tank Size: Fill Pipe Size: Special Notes: 10,000 4" Below Ground Tank Transport Tank Size 10,000 Below Ground Tank Q Price per gallon: 1.5384 Fill Pipe Size: Special Notes: 3" Fuel Dil Silver Spring Elementary Bob Kreitrer 6746 Carlisle Pike 717-766-3332 Mechanicsburg, PA 17050 Dual Fuel Capable: ^ Above Ground Tank ^ 2005-2006 Estimate Gallons: 0 Transport Price per gallon: 1.5384 Tank Size: Fill Pipe Size: Special Notes: 8,000 4" No Fuel Needed this contract Below Ground Tank `I] "Tuesday, ~titay 24, 2005 Contract Year: July 1, 2005 -.fune'i(l. 2clnG Central Pennsylvania Energy Consortium (CPEC) 200-2006 Fuel Supplies Bid Award Report CPEC Member: Cumberland Valley School District Farm & Home Oil Company Contact: Rodney Derstine 311 State Road Phone: 800 821-6489 BOX 389 Fax: 215 257-2088 Telford, PA 18969 Fuel Oil Transport Price per gallon: 1.5384 Cumberland Valley High School Karen Hardy Tank Size: Fill Pipe Size: Special Notes: 6746 Carlisle Pike 717-506-3321 12,000 3" No Fuel Needed this contract Mechanicsburg, PA 17050 Dual Fuel Capable: ^ Above Ground Tank Q Below Ground Tank ^ 2005-2006 Estimate Gallons: 0 Fuel Oil Transport Price per gallon: 1.5384 Eagle View Middle School Scott Fieseler Tank Size: Fill Pipe Size: Special Notes: 6746 Carlisle Pike 717-766-0217 10,000 2.5" No Fuel Needed this contract Mechanicsburg, PA 17050 Dual Fuel Capable: ^ Above Ground Tank Q Below Ground Tank ^ 2005-2006 Estimate Gallons: 0 Fuel Oil Green Ridge Elementary Merv Madson 1 Green Ridge Road 717-766-491" Mechanicsburg, PA 17055 Dual Fuel Capable: ^ Above Ground Tank ^ 2005-2006 Estimate Gallons: 25000 Transport Price per gallon:. 1.5384 Tank Size: Fill Pipe Size: Special Notes: 10,000 4" Below Ground Tank ^ Fuel Oil Good Hope Middle School George Kirchner 451 Skyport Road 717-761-1865 Mechanicsburg, PA 17050 Dual Fuel Capable: ^ Above Ground Tank 2005-2006 Estimate Gallons: 0 Transport Price per gallon: 1.5384 Tank Size: Fill Pipe Size: Special Notes: 10,000 3" No Fuel Needed this contract Below Ground Tank ^ Fuel Oil Middlesex Elementary Bob Whitzel 250 North Middlesex Road 717-249-5586 Carlisle, PA 17013 Dual Fuel Capable: ^ Above Ground Tank 2005-2006 Estimate Gallons: 15000 Transport Price per gallon: L5384 Tank Size: Fill Pipe Size: Special Notes: 10,000 3" Below Ground Tank ^ Tuesday, ~-Iny 2~1, 2005 Contract Year: July 1, 2005 - .June 30, 2006 Central Pennsylvania Energy Consortium 200-2006 Fuel Supplies Bid (CPEC) Award Report CPEC Member: Cumberland Valley School Districf Farm 8 Home Oil Company Contact: Rodney Derstine 3115 State Road Phone: 800 821-6489 BOX 389 Fax: 215 257-2088 Telford, PA 18969 1. Attach this award report to your organization's purchase order. 2. To calculate purchase order estimated total multiply your estimated gallons by the price per gallon award price. 3. Forward your purchase order with attached report by June 10 to: Paul L. Zeigler, P.C. Attn: Lizz i/Iaioli P. O. Box B New Cumberland, PA 17070 CPEC will foward to vendors. Tuesday, 1~Iay 24, 2005 ~ Contract Year: July 1, 2005 -June 30, 2006 ~,~~r;.Q CENTRAL PENNSYLVANIA ~ CPEC ~~~,,_ ENERGY CONSORTIUM ~~`= ~~ 4, ;' .- x~ M _ BOARD MEMBERS: ADAMS COUNTY CAMP HILL BOROUGH CAPITAL AREA INTERMEDIATE UNIT CUMBERLAND COUNTY DAUPHIN COUNTY HARRISBURG AREA COMMUNITY COLLEGE HOLY SPIRIT HOSPITAL LEBANON COUNTY PERRY COUNTY UPPER DAUPHIN COUNCIL OF GOVERNMENTS TO: VENDORS FROM: Paul L. Zeigler, General Counsel Central Pennsylvania Energy Consortium DATE: May 6, 2005 RE: 2005-2006 FUEL SUPPLIES BID The Central Pennsylvania Energy Consortium (CPEC) in .coordination with the Capital Area Intermediate Unit (CAIU) are soliciting bids for the following items: Fuel Oil, Grade No. 2 Diesel Fuel, Low Sulphur Diesel Fuel, Ultra Low Sulphur (ULSD) Diesel Fuel, Off Road Unleaded Gasoline 87 Octane Unleaded Gasoline 89 Octane Unleaded Gasoline 92 Octane Unleaded Gasoline 93 Octane Sealed bids are due no later than 12:00 noon on Thursday, May 19, 2005, and will be opened at 12:00 noon on Thursday, May 19, 2005, at the Capital Area Intermediate Unit at 55 Miller Street, Summerdale, Pennsylvania 17093. Bids will be awarded at a special meeting of the CPEC board of directors on Thursday, May 19, 2005. Bidders will be notified of award results on Thursday, May 19, 2005. Thank you for your interest in this joint purchasing program. Please do not hesitate to contact the undersigned (717-920-8420) if you have any questions on the enclosed information. THE POWER OF COOPERATION CENTRAL PENNSYLVANIA ENERGY CONSORTIUM INVITATION FOR BIDS FOR FUEL SUPPLIES ;,i.:2 CPC ~~,~~~ - ~ _. _ The Central Pennsylvania Energy Consortium (CPEC), in coordination with the Capital Area intermediate Unit (CAIU), invites sealed bids for fuel supplies. The sealed fuel supplies bid must be delivered, or received by U.S. Mail (fax not acceptable), no later than 12:00 noon on Thursday, May 19, 2005, to: Capital Area Intermediate Unit (CAIU) Attn: Jan Howe 55 Miller Street P.O. Box 489 Summerdale, Pennsylvania 17093 Bid opening will be at 12:00 noon on Thursday, May 19, 2005 in the Hemlock Room at the Capital Area Intermediate Unit. Full Instructions to Bidders, Conditions of Bid, Specifications, Form of Proposal, and all other Contract Documents required, may be obtained from Paul L. Zeigler, at 300 Bridge Street, Second Floor, New Cumberland, Pennsylvania 17070. [717-920-8420]. Submit bids based on the Oil Price information Service (OPTS) Daily Publication for the Harrisburg -Lebanon -Carlisle area, on the closest publication date prior to the date of the bid opening. Bid awards will be based on the price of the fuel and compliance with the bid specifications. CPEC reserve the right to reject any or all bids. Paul L. Zeigler General Counsel Central Pennsylvania Energy Consortium THE POWER OF COOPERATION ?' n: F CENTRAL PENNSYLVANIA CPEC ,~ {: ENERGY CONSORTIUM ~~~3,. ~`~~~`~.~,._r. INSTRUCTIONS TO BIDDERS 1. Sealed bids will be received by the CPEC/CAIU, until 12:00 noon., Thursday, May 19, 2005, at the Capital Area Intermediate Unit, Attn: Jan Howe, 55 Miller Street, P. O. Box 489, Summerdale, PA 17093. 2. All bids shall be submitted in sealed envelopes marked "SEALED BID FOR FUEL SUPPLIES". 3. Bids must be typewritten or written with ink and must be signed by the bidder using only the enclosed form. Unsigned bids will not be considered. 4. A bid bond for 10% of the bid based on the usage history gallonage must accompany the bid. Successful bidders must provide a performance bond for 10% of the bid award. 5. Bid figures shall include all charges, including delivery at the destinations called for, based on the usage history gallonage and estimates reported on the enclosed bid sheets. Bid figures shall include all discounts other than cash discount. Deductions for State and Federal Taxes from which school districts/members are exempt shall be included in the bid. Participating members upon request will furnish tax exemption certificates. 6. Deliveries will be made to participating members between the hours of 8:00 a.m. and 3:00 p.m., Monday through Friday, within 48 hours of request or an automatic delivery schedule as agreed between successful vendor and participant.. A dated, metered, pick-up ticket from the point of origin of the shipment or other written verification of delivered amount must be provided at delivery. Usage history gallonage and estimates, storage capacity and number of delivery sites are included on the enclosed bid sheets. 7. Supplier shall be liable for any damages, overflow of oil, etc., done by their personnel. Successful bidder shall take the necessary precautions to prevent dripping or spillage. if spillage should occur bidder will accept liability for EPA/DER penalties. Retrieval of fuel not meeting specifications will be at supplier's expense. 8. Successful bidder agrees if requested to split transport loads at the same school district/member to the maximum of two locations. Transport vehicle must be ale to safely access location in order fr split load to happen. 9. All bids are to be based on usage history andlor estimated gallonage. The CPEC/CAIU does not have the power to bind individual participants to the purchase of specific amounts. 10. Bidders must bid on all delivery sites within a county or counties, but are not required to bid on all products. Bids shall be one price for all delivery sites per county. Bidders may bid tankwagon and/or transport prices. Both firm-fixed and fluctuating bids with a cap will be accepted. Specify "firm-fixed" or "fluctuating with cap" on each product bid. 11. Successful vendor will be responsible for all taxes, including filing for any refunds or credits, due on any and all taxes, including the Federal Excise Tax, from which participants are exempt. 12. Terms of the contract will be July 1, 2005 through June 30, 2006. Successful vendor(s) will provide purchase reports, itemized by delivery location, to the CPEC/CAIU following contract completion. THE POWER OP COOPERATION CENTRAL PENNSYLVANIA t . CPEC ~ ~,.. ENERGY CONSORTIUM ,~-; ~~~~~,. _. . _ CONDITIONS OF BID GENERAL CONDITIONS 1. Local Conditions: All deliveries shall be made as ordered and bidders shall acquaint themselves with local conditions at the locations where delivery is to take place so that note can be made of anything that might affect their bids. 2. Invoicin~7: Invoices shall be sent to the business office of the school district/memberbeing supplied as stated on purchase orders provided by members following the award. Separate invoices shall be rendered for each delivery ticket signed by an authorized school district/member representative. DUPLICATE invoices are required. 3. Discrepancies: if any bidder finds discrepancies in, or is in doubt as to the true meaning of any part of the plans, specifications or other contract documents, the bidder shall immediately submit to the CPEC/CAIU a written request for an interpretation thereof. LEGAL CONDITIONS 1. The Invitation for Bids, Instructions to Bidders, General Conditions of the Bid, Special Conditions (if any), the Specifications for the supplies and/or materials desired, as well as the Form of Proposal, Agreement and Bonds, shall be collectively known and designated as the "Contract Documents" and together shall form the Contract. 2. No bidder may withdraw his bid for a period of 30 days after the date set far the opening thereof 3. The CPEC/CAIU reserves the right to waive any formalities or reject any or al! bids or portions thereof. The CPEC/CAIU members are referred to as the owner and/or the participating members in this bid request. 4. No rights shall accrue to any person submitting a bid or proposal until such bid has been accepted, contract awarded, and the contract finally and completely executed in writing by duly authorized officers of each participant. 5. Deposits: Each bid submitted must be accompanied by a certified check, cashier's check or a treasurer's check drawn to the order of the CPEC/CAIU, or a bid bond in the amount of 10% of the bid, with surety acceptable to the said CPEC/CAIU, except where noted. All Bonds shall be issued by companies such as will be acceptable to CPEC/CAIU, and which are authorized to transact business in Pennsylvania. Surety Companies must have a Certificate of Authority as an acceptable Surety on Federal Bonds and as an acceptable reinsuring company in accordance with the latest Treasurer's Department Bulletin published by the Fiscal Service Company of Surety Bonds. THE POWER OF CDDPERATION CENTRAL PENNSYLVANIA F, OPEC ,;-, ENERGY CONSORTIUM , r"~: ~~s~: ,,_. CONDITIONS OF BID, Continued 6. Checks will be returned to al! bidders after the successful bidder has furnished and properly signed all Contract Documents. The successful bidder must complete and deliver all Contract Documents within fifteen (15) days of the date postmarked on the envelope in which the documents are mailed by the Board. If the bidder to whom an award is made shall fail or refuse to execute the contract within the time specified and allowed for completion, the participants may deduct and retain out of the monies due the bidder or from the deposit required by the above paragraph, such sum as shall be sufficient to pay the difference between the price on which the award was made and the price which the participants may or shall be obliged to pay to procure the supplies and/or materials from other sources. 7. The successful bidder shall provide a Performance Bond to the CPEC-CAIU in the amount of 10% of the estimated purchase within fifteen (15) days of the date postmarked on the envelope in which the documents are mailed by the Board. 8. Evidence of Insurance: The successful bidder shah submit a Certification of Insurance for fleet delivery vehicles. Liability shall not be less than $1,000,000 single limit liability combined, Property Damage $1,000,000. Vendor must forward a certificate of insurance for Workers Comp if awarded the bid. 9. The .successful bidder will be responsible for any damage to property caused by the successful bidder or their agents. Supplier further covenants and agrees to assume and does hereby assume all liability for, and shall and does agree to, indemnify and save harmless the participants against any and a!I loss, costs, suits, claims, charges or damages arising from injuries sustained by mechanics, laborers, workmen or by any person or persons, whatsoever, to their persons or property, whether employed in and about the said work or otherwise, by reason of accidents, damages or injuries, torts or by reason of the performance of this contract and the performance of said work and labor, including costs, counsel fees, and all expenses of defense, and agrees to carry the usual Property Damage and Liability Insurance and to furnish certificates therefore, when required by the participants. 10. All applicable laws shall be deemed to be part of these specifications and the contract shall be read and enforced as though they were included. 11. Successful bidder must sign contract as prescribed by the forms. When the successful bidder is a corporation, documents should be signed by the President or Vice President and by the Secretary or Assistant Secretary. If signed by one person, a copy of the authority of such person must accompany the proposal. l 2. In compliance with the Act of the General Assembly, the succ ssfu! bidder further covenants and agrees to accept, insofar as the work covered by this contract in Pennsylvania is concerned, the provisions of the Workers Compensation Act of 1951, and any such supplements or amendments thereto, which may have been or may hereafter be passed, or shall file with the participants a certificate from the Department of Labor and industry. Tr-a~ PnwFR nF COOPERATION CENTRAL PENNSYLVANIA ENERGY CONSORTIUM CONDITIONS OF BID, Continued i?'il:i CPEC _r~ ;;. 13. The bidder agrees, if awarded the contract, to furnish and deliver the specified products at such times, at such places and in such quantities as herein specified, and that all of the products shall be subject to inspection and approval. In the event that any of the said products shall be rejected as unsuitable or not in conformity with these specifications, such products of proper quality as set forth in these specifications shall be furnished in place thereof at the expense of the successful bidder. 14. In the event that the successful bidder shall neglect or refuse to furnish and deliver the said articles or any part thereof as provided in these specifications or to replace any which are rejected as stated in the preceding paragraph, the participants are authorized and empowered to purchase articles in conformity with this contract from such party or parties in such quantities in such manner as it shall select at the expense of the successful bidder, or to cancel this contract reserving to itself, nevertheless, all rights for damages which may be incurred by the participants. 1 S. The bidder agrees that if the contract is awarded to him, he will not assign, transferor sublet it, unless specific permission to do so is requested in writing by the bidder, and granted in writing by the CPECICAIU. 16. NON-COLLUSION STATEMENT -Bidders by submitting a signed Form of Proposal certify that the bid or proposal is not the result of, or affected by, any unlawful act of collusion with any other person or company engaged in the same Line of business or commerce, or any other fraudulent act punishable under Pennsylvania or United States law. THE POWER OF COOPERATION :ir~icE CENTRAL PENNSYLVANIA ,~ CPEC ;~=` , ^~ ~j ~b ~. ENERGY CONSORTIUM .~.~;_...:.:_. ~' ~... . - FORM OF PROPOSAL VENDOR: Farm & Home Oil Company To the: CPEC/CAIU 55 Miller Street P. O. Box 489 Summerdale, PA 17093 DATE: May 18, 2005 We, the undersigned, herewith propose and agree to furnish to the participants any item or items at the net prices set opposite each item on the attached sheets. This proposal is subject to all the terms of the Contract Documents which include the Invitation for Bids, Instructions to Bidders, Conditions of Bid, Special Conditions, if any, the Specifications for the Supplies and/or Materials, and we hereby agree to enter into a written contract to furnish such item(s), as may be awarded to us, and to furnish such security as these specifications require. We understand that the CPEC/CAIU reserves the right to reject any or all bids or any portion thereof not deemed satisfactory, or to select single items from any bid. The original of this form of proposal is being returned to you containing our bid. A copy was retained for our files. The undersigned bidder certifies to having read the Invitation for Bids, Instructions to Bidders, Conditions of Bid, and Specifications and offers to furnish supplies and/or materials as specified to CPEC/CAIU members, in exact accordance with these specifications and conditions at the prices stated on the attached forms. The following are three references that maybe contacted to support satisfactory performance of our company for the purchase of similar items contained on this bid: REFERENCES: Company Name Eastern Industries Contact Person Company Name, Jim Case Penske Truck Phone 61D-689-9551 Contact Person Virind S. Gujral Phone 610-775-6174 Company Name. Contact Person Tom bunting Phone 610-222-3560 Haines & Kibblehouse Ti-r~ POWER OF COOPERATION ,, CENTRAL PENNSYLVANIA ENERGY CONSORTIUM IF BIDDER IS A CORPORATION: Farm & Home Oil Company FUEL SUPPLIES BID FORM OF PROPOSAL, CONTINUED i3'l::E CPEC ,~~ _ ,~. n q ~.,~.. 1.J-~ _ ~ /~~ ~~-~ Signed President Corporation Name 3115 State Road, Box 389 P. O. Box/Street Address Telford, PA 18969 City/State/Zip 800-321-6489 215-.257-2088 Daryl HaC}Qnan Type Name Sigrid ~'Secr tary ~% James Boyd Telephone Fax Type Nam ~' i' Rodney Derstine, VP Supply & Distribution ' -_~''~ ~ Type Name and Title of Bid Contact Person Signed ~ dfloyd@fhoil.com www.fhoil.com E-mail address Web Site IF BIDDER TRADES UNDER A FICTITIOUS NAME OR IS A PARTNERSHIP: Trading Name Signed P. O. Box/Street Address City/State/Zip Bid Contact Person E-mail address Type Name and Title Signed Telephone Fax Web Site THE POWER OF COOPERATION - ~ w 0 ~ v '~ _~ 1 G Z O 7 :. nw ~, o i C~ a 7 v n v i]. t9 U o c = 0 0 0 0' ~ _ CO p ~ r-I N d 0. rn c = o w y ~ `~ N `~ b b O a U in ~] c~ A ~ A ~ H ~ d' II1 ('JQ ~ O O O ~ ~ ~ U W a` ~ w t°- Q f9 ~ _ _~ U a~ 3 a ~ ~ ~ o ~ ~ ,n ~i ~ sn _ ~ C~ • u o H 7 d ~ + ~ V 7 LL. H O O Q ~ ~ Q„ rl G1 C U O ~L //^^ ~~ ~ V V L ~ W ~ ~ a U o~ to Q O U U r,, ~ ~~ L c] y C ~ W ,_ co '~ •= d ~ z ~ ~ J F~ ~ R W ~ a ¢ ~~ ~~c~ ~ ~~ U U rn Lf O t N Y ~ r~ ~ Y 0 a ca i- C o 3 c I- .. a ca I- G 0 ~ = F-- a co ~- c 0 3 c I- 0 J O J m ~ ~ ~ ~ N ~ ~ ~ a~ a~ ' i ,~ ~ D b ~ b ~ ,O ,o .Q ~ O O O O ~ ~ ~ O Q O r ~~-+ ~ ~ r~ r~+ ~ ~ ~ ~-+ 0 ~ ~ ~ ~ Q Q c c c c c ~ 0 0 0 0 0 . n o a 3 ~ a ~ a ~ a ~ N c c c c c ~ ~ ~ ~ ro ~ co ~ c4 ~ ca ~ (~ ~ aS }- f- 1- I-- f- I-- f- F- 1- F- ~ ~ ~ ~ N O ~' C~ (Sf f0 (0 O O O O O ~ ~ ~ ~ ~ ~ __ _ O O O O N ~ .~ 6 ( 6 (0 (p D ~ ~O ~ ~O ~ ~O ~ ~O a> U X N O C .~ a~ U .a m C .~ 7 U f~ O F- a~ .~ -a Q m 7c 43 7 LL a~ 0 .-I O C O i0 t'~ d a N O U t0 Q z 0 F a O 0 O (''1 O "D C _~ CO O N O LL ~~~~~:z CENTRAL PENNSYLVANIA 'CPEC ~,; ENERGY CONSORTIUM `n ~~~~~ May 24, 2005 Rodney Derstine Farm & Home Oil Company 3115 State Road, Box 389 Telford, PA 18969 RE: Bulk Fuel Bid - 2005/2006 The Central Pennsylvania Energy Consortium (CPEC) established the award for Bulk Fuel Requirements as a result of a special CPEC meeting May 20, 2005, after the bids were opened on May 19, 2005. Notice of the bid award was provided to all vendors on May 20, 2005. A copy of the award is enclosed. Successful bidders must advise by letter that your company will furnish the various items awarded to you as per the enclosed report. Successful bidders must provide a performance bond to CPEC in the ampunt of 10% of the estimated award within fifteen (15) days, by June 6, 2005. In addition, in accordance with the Conditions of Bid, evidence of insurance must be provided in the form of a Certificate of Insurance for fleet delivery vehicles. When the Confirmation Letter, Performance Bond, and Certificate of Insurance have been received, members will be notified to issue purchase orders to your company. That purchase order becomes the contract between your company and the member. The contract period for this bid is July 1, 2005 through June 30, 2006. Please contact me if you have any questions regarding this bid award. We appreciate your continued participation in this joint purchase program. Sincerely, Paul L. Zeigler THE POWER OF COOPERATION :l9', - m i~ . . <+ n v a u: v ~ 0 r, c -~ cn `• ~ rri V1 ~,7 ~ (~`4 O ~ ,~ ~ Zaa ~ ~ ~``. ~ -= o E"' ~ Z '~ O ~ ~ Z ~ +~~ t ' 7 4~ 0~ i ! ~ ct ~.. 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E rna~E~ E E E Ew~s~-,,., m c c}°~ ~~JJ~ `ol~F~-F-~ m `o~ ~ aci ~ (p fA C 0 C t6 t0 C t0 C C C C V t0 •~ C •~ - F- • ¢~c.~,~o,~~aww~u.u.i~cnwovwcn~-- U ~, C ~' ~ C ~ td U C C ~ CJ ~ II. ~ ~- C C 7 W C~ ~ C C f0 C ~= O ~-o~osC:acc~C7fl o a a cC7~c~f- O ~ A U co E ~ ~ a~ -n -o ~ ~ w ~ U ~ ~ ~ C7 .o w c o o m~ 2 w~~ o~ o c ~u- o 0 o c c~ o~~~ m ~ Q Q Z U U ~ ~~ -> Z Z» J~ U¢ t7 U ~~ .., .7 '~ .. .+) ~ r.. ... . s "°) _. ~ } i..: ! ~ w MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: PATRICIA A. FECILE-MORELAND, ESQUIRE IDENTIFICATION NO. 83798 1800 JOHN F. KENNEDY BLVD., 19TH FLOOR PHILADELPHIA, PA 19103 (215) 564-6688 Our File No. 779-78185 Respectfully submitted, CUMBERLAND VALLEY SCHOOL DISTRICT COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. N0.07-5446 BRT, INC. and FARM AND HOME OIL COMPANY JURY TRIAL DEMANDED (12 JURORS) ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Kindly enter the appearance of Patricia A. Fecile-Moreland, Esquire on behalf of Defendant, Farm and Home Oil Company, in the above-captioned matter. Defendant, Farm and Home Oil Company, by and through its undersigned attorney hereby demands a trial by jury of twelve in the above referenced matter. By: ATTORNEY FOR DEFENDANT, FARM AND HOME OIL COMPANY RKS O'NEILL, O'BRIEN & ~URTNEY, P.C. Patribia'~~Moreland, Esquire Attorneys for Defendant, Farm and Home Oil Company {PH215048.1 } CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Entry of Appearance and Demand for Jury trial was sent by first-class U.S. mail, postage prepaid, to the counsel below listed: Randall G. Gale, Esquire Corey J. Adamson, Esquire Thomas, Thomas & Hafer LLP P.O. Box 999 Harrisburg, PA 17101 Counsel for Plaintiff Douglas B. Marcello, Esquire Marcello & Kivisto, LLC 1501 Commerce Avenue Carlisle, PA 17015 Counsel for Defendant, BRT, Inc. .r-> Constance A. atein, Legal Assistant Date: February 5, 2008 {PH215048.1) t'1 +v ~ Q lr, m ~s '"~ ~f r -- `, '. ' ' _ r : ~ r , _. t~ J ~ rra V MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: PATRICIA A. FECILE-MORELAND, ESQUIRE IDENTIFICATION NO. 83798 1800 JOHN F. KENNEDY BLVD., 19~ FLOOR PHILADELPHIA, PA 19103 (215) 564-6688 Our File No. 779-78185 ATTORNEY FOR DEFENDANT, FARM AND HOME OIL COMPANY CUMBERLAND VALLEY SCHOOL DISTRICT COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. BRT, INC. and FARM AND HOME OIL COMPANY : NO. 07-5446 JURY TRIAL DEMANDED (12 JURORS) DEFENDANT FARM AND HOME OIL COMPANY'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant Farm and Home Oil Company by and through its undersigned counsel, Marks, O'Neill, O'Brien & Courtney hereby preliminarily objection to Plaintiff s Complaint and in support thereof aver as follows: Plaintiff Cumberland Valley School District filed a writ of summons on or about September 18, 2007. 2. Thereafter, Defendant BRT filed a Rule to File Complaint on or about November 19, 2007. 3. Plaintiff filed the Complaint in this matter on or about January 24, 2008 asserting claims of negligence and breach of contract against Defendant Farm and Home Oil Company. 4. As averred in the Complaint, Defendant BRT delivered fuel to Middlesex Elementary School pursuant to an agreement for the supply of fuel oil between Plaintiff and {PH215417.1 } Defendant Farm and Home Oil Company ("Defendant Farm and Home"). See Exhibit "A" attached hereto, Plaintiff s Complaint. 5. Plaintiff further avers that Defendant Farm and Home had a contract with Plaintiff to supply fuel oil. See Exhibit "A." 6. It is further averred that on September 20, 2005 Defendant BRT made an oil delivery Middlesex Elementary School and in the course of that delivery a spill of fuel oil occurred. See Exhibit "A." I. DEMURRER TO COUNT TWO NEGLIGENCE AS LEGALLY INSUFFICIENT UNDER THE GIST OF THE ACTION 7. Pennsylvania Rule of Civil Procedure 1028(a)(4) states that a party may object to a complaint on the basis of legal insufficiency (demurrer). 8. Preliminary objections on the grounds of legal insufficiency of a pleading, in the nature of a demurrer will be sustained and the pleading will be dismissed where the law is clear that no recovery by Plaintiff is possible. Silo v. Ride, 728 A.2d 394 (Pa. Comwlth. 1999). 9. For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts; however the pleaders conclusions of law or averments of law are not considered to be admitted as true by a demurrer. See Bash v. Bell Telephone Co. of Pennsylvania, 601 A.2d 825, 828 (Pa. Super. 1992) (internal citations omitted). 10. Pennsylvania courts have recognized the doctrine of "gist of the action" which precludes tort claims which "(1} arise solely from a contract between the parties' (2) where the duties breached were created and grounded in the contract itself; (3) where the liability stems from the contract; and (4) where the tort essentially duplicates a breach of contract claim or the {PH215417.1 } success of which is wholly dependent on the terms of the contract." Etoll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 19 (Pa. Super. 2002) (internal citations omitted). 11. More specifically, the difference between contract claims and tort claims has been stated as follows: although they derive from a common origin, distinct differences between civil actions for tort and contract breach have developed at common law. Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals... to permit a promissee to sue his promisor in tort for breaches of contract inter se would erode the usual rules of contractual recovery and inject confusion into our well-settled forms of actions. Id. at 8-9, quoting, Bash v. Bell Telephone Co. of Pennsylvania, 601 A.2d 825, 829 (Pa. Super. 1992) (other citations omitted). 12. "The important difference between contract and tort actions is that the latter lie from the breach of duties imposed as a matter of social policy while the former lie for breach of duties imposed by mutual consensus; in other words, a claim should be limited to a contract claim when the parties' obligations are defined by the terms of the contracts, and not by the larger social policies embodied by the law of torts." Id. at page 9, quoting, Redevelopment Auth. v. International Ins. Co., 685 A.2d 581, 590 (Pa. Super 1996) (en banc), appeal denied 69S A.2d 787 (Pa. 1997) and Bohler-Uddeholm Am., Inc. v. Ellwood Group, Inc., 247 F.3d 79, 104 (3`d Cir. 2001} cert. denied, 534 U:S. 1162, 122 S.Ct. 1173 (2002). 13. In the matter at hand, the relationship and duties between Plaintiff and Defendant Farm and Home are established by the contract for the supply of fuel oil referred to in Plaintiff s Complaint. 14. Any obligations owed to Plaintiff are defined by and limited by the contract between the parties. {PH215417.1 } 15. Consequently, Plaintiff's claim for negligence should stricken from the Complaint. II. ALTERNATIVELY DEMURRER TO COUNT TWO AS LEGALLY INSUFFICIENT UNDER THE ECONOMIC LOSS DOCTRINE 16. In the alternative, Plaintiff's tort claims are legally insufficient in light of the economic loss doctrine. 17. "Pennsylvania cases clearly limit the extent that a negligent tortfeasor will be made legally liable for an economic loss caused directly by or indirectly by the tortfeasor's negligent act or conduct. Purely economic loss, when not accompanied with or occasioned by physical injury, is considered beyond the scope of recovery even if a direct result of the negligent act." Margolis v. Jackson, 543 A.2d 1238, 1240 (Pa. Super. 1988). 18. "To allow a cause of action for negligent cause of a purely economic loss would be to open the door to every person in the economic chain of the negligent person or business to bring a cause of action." Aikens v. Baltimore & Ohio R. Co., 501 A.2d 277, 279 (Pa. Super. 1985). 19. In the matter at hand, Plaintiff asserts damages for remediation and contamination; there are no allegations of physical injury as part of the claimed damages. 20. Therefore, the losses claimed are purely economic, further precluding a claim sounding in tort. 21. If the gist of the action standazd does not bar Plaintiff's claim for negligence against Defendant Farm and Home, then the economic loss doctrine precludes the raising of tort claim in this instant matter. {PH215417.1 } WHEREFORE, it is respectfully requested this Honorable Court enter an order in the form attached hereto sustaining Defendant Farm and Home's preliminary objections and striking Count Two from Plaintiff s Complaint. Respectfully submitted, MARKS, O'NEILL, O'BRIEN & C TNEY, .C. By: Pa "cia A. Fecile-Moreland, Esquire Attorney for Defendant, Farm and Home Oil Company {PH215417.1 } MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: PATRICIA A. FECILE-MORELAND, ESQUIRE IDENTIFICATION NO. 83798 1800 JOHN F. KENNEDY BLVD., 19TH FLOOR PHILADELPHIA, PA 19103 (215) 564-6688 Our File No. 779-78185 ATTORNEY FOR DEFENDANT, FARM AND HOME OIL COMPANY CUMBERLAND VALLEY SCHOOL DISTRICT COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. NO. 07-5446 BRT, INC. and FARM AND HOME OIL COMPANY JURY TRIAL DEMANDED (12 JURORS) DEFENDANT FARM AND HOME OIL COMPANY'S MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT I. STATEMENT OF FACTS Plaintiff Cumberland Valley School District filed a writ of summons on or about September 1$, 2007. Thereafter, Defendant BRT filed a Rule to File Complaint on or about November 19, 2007. Plaintiff filed the Complaint in this matter on or about January 24, 2008 asserting claims of negligence and breach of contract against Defendant Farm and Home Oil Company. See Exhibit "A" attached hereto, Plaintiff s Complaint. As averred in the complaint, Defendant BRT delivered fuel to Middlesex Elementary School pursuant to an agreement for the supply of fuel oil between Plaintiff and Defendant Farm and Home Oil Company ("Defendant Farm and Home"). Plaintiff further avers that Defendant Farm and Horne had a contract with Plaintiff to supply fuel oil. See Exhibit "A." It is further stated in Plaintiff s Complaint that on September 20, 2005 Defendant BRT made an oil delivery {PH21S417.1 } Middlesex Elementary School and in the course of that delivery a spill of fuel oil occurred. See Exhibit "A." II. QUESTION PRESENTED Should Defendant Farm and Home's preliminary objections to count two of the complaint be sustained under a theory of gist of the action? Suggested Answer: YES Alternatively, should Defendant Farm and Home's preliminary objections to count two of the complaint be sustained under the economic loss doctrine? Suggested Answer: YES III. LEGAL ARGUMENT A. Standard of Review Pennsylvania Rule of Civil Procedure 102$(a)(4) states that a party may object to a complaint on the basis of legal insufficiency (demurrer}. Preliminary objections on the grounds of legal insufficiency of a pleading, in the nature of a demurrer will be sustained and the pleading will be dismissed where the law is clear that no recovery by Plaintiff is possible. Silo v. Ride, 728 A.Zd 394 (Pa. Comwlth. 1999). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well- pleaded, material, relevant facts; however the pleaders conclusions of law or averments of law are not considered to be admitted as true by a demurrer. See Bash v. Bell Telephone Co. of Penns ly vania, b01 A.2d 825, 828 (Pa. Super. 1992) (internal citations omitted). {PH215417.1 } B. Demurrer to Count Two Negligence as Legally Insufficient Under the Gist of the Action Pennsylvania courts have recognized the doctrine of "gist of the action" which precludes tort claims which "(1) arise solely from a contract between the parties' (2) where the duties breached were created and grounded in the contract itself; (3) where the liability stems from the contract; and (4) where the tort essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of the contract." Etoll. Inc. v. Elias/Savion Advertising, Inc., 811 A.Zd 10, 19 (Pa. Super. 2002) (internal citations omitted). More specifically, the difference between contract claims and tort claims has been stated as follows: although they derive from a common origin, distinct differences between civil actions for tort and contract breach have developed at common law. Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals... to permit a promissee to sue his promisor in tort for breaches of contract inter se would erode the usual rules of contractual recovery and inject confusion into our well-settled forms of actions. Id. at 8-9, quoting, Bash v. Bell Telephone Co. of Penns ly vania, 601 A.2d 825, 829 (Pa. Super. 1992) (other citations omitted). "The important difference between contract and tort actions is that the latter lie from the breach of duties imposed as a matter of social policy while the former lie for breach of duties imposed by mutual consensus; in other words, a claim should be limited to a contract claim when the parties' obligations are defined by the terms of the contracts, and not by the larger social policies embodied by the law of torts." Id. at page 9, quoting, Redevelopment Auth. v. International Ins. Co., 685 A.2d 581, 590 (Pa. Super 1996) (en banc), appeal denied 695 A.2d 787 (Pa. 1997) and Bohler-Uddeholm Am.. Inc. v. Ellwood Group, Inc., 247 F.3d 79, 104 (3ra Cir. 2001) cert. denied, 534 U.S. 1162, 122 S.Ct. 1173 (2002). (PH21541'I.l } In the matter at hand, the relationship and duties between Plaintiff and Defendant Farm and Home are established by the contract for the supply of fuel oil referred to in Plaintiff s Complaint. As averred in Plaintiff s Complaint, there was a contract between Plaintiff and Defendant Farm and Home for the supply of fuel oil. Pursuant to that agreement, fuel was delivered by BRT on the date of the subject loss. Any obligations owed to Plaintiff by Defendant Farm and Home are defined by and limited by the contract between the parties. Consequently, Plaintiff s claim for negligence should stricken from the Complaint under the gist of the action. C. Alternatively Demurrer to Count Two as Legally Insufficient Under the Economic Loss Doctrine In the alternative, Plaintiffs' tort claims are legally insufficient in light of the economic Loss doctrine. "Pennsylvania cases clearly limit the extent that a negligent tortfeasor will be made legally liable for an economic loss caused directly by or indirectly by the tortfeasor's negligent act or conduct. Purely economic loss, when not accompanied with or occasioned by physical injury, is considered beyond the scope of recovery even if a direct result of the negligent act." Margolis v. Jackson, 543 A.Zd 1238, 1240 (Pa. Super. 1988). Furthermore, "to allow a cause of action for negligent cause of a purely economic loss would be to open the door to every person in the economic chain of the negligent person or business to bring a cause of action." Aikens v. Baltimore & Ohio R. Co., 501 A.2d 277, 279 (Pa. Super. 1985). In the matter at hand, Plaintiff asserts damages for remediation and contamination; there are no allegations of physical injury as part of the claimed damages. See Exhibit "A." Therefore, the losses claimed are purely economic, further precluding a claim sounding in tort. If the gist of the action standazd does not bar Plaintiff s claim for negligence against Defendant {PH215417.1 } Farm and Home, then the economic loss doctrine precludes the raising of tort claim in this instant matter. IV. CONCLUSION In light of the foregoing arguments, Defendant Farm and Home respectfully requests this Honorable Court enter an Order in the form attached hereto, sustaining Defendant's Preliminary Objections and striking Count Two from Plaintiff s Complaint. MARKS, O'NEILL, O'BRIEN & C,QURTNEY, P.C. Attorney for Defendant, Farm and Home Oil Company {PH215417.1 } VERIFICATION I, Patricia A. Fecile-Moreland, Esquire, verify that I am counsel for Farm and Home Oil Company, a Defendant in this matter, and that the facts set forth in the foregoing Defendant Farm and Home Oil Company's Preliminary Objections to Plaintiffs Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to Date: February 7, 2008 Fecile-Moreland, Esquire {PH215417.1 } CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendant Farm and Home Oil Company's Preliminary Objections to Plaintiffs Complaint was sent by first-class U.S. mail, postage prepaid, to the counsel below listed: Randall G. Gale, Esquire Corey J. Adamson, Esquire Thomas, Thomas & Hafer LLP P.O. Box 999 Harrisburg, PA 17101 Counsel for Plaintiff Douglas B. Marcello, Esquire Marcello & Kivisto, LLC 1501 Commerce Avenue Carlisle, PA 17015 Counsel for Defendant, BRT, Inc. Constance A. Katem, Legal Assistant Date: February 7, 2008 {PH2154i7.1} ~,b~+ ~- }2and~l G. Gale, Esquire Altomey I.p. # Coney J. Adamson.. Esquire Altomey 1.0. #204508 THOMAS. THOMAS 8 FiAFER,IIP P.O. eox 999 Flanisbu+g, PA 17108-0999 717-256-7639 cadarruon~ithlaw.oom A>ttomeys for Pl7irt8ff CUMBERLAND VALLEY SCHOOL DISTRICT, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v BRT, INC.; FARM AND HOME OIL COMPANY, Defendants NO. 07-5446 CIVIL ACTION -LAW JURY TRIAL DEMANDED AND,NOW comes Plaintiff, Cumberland Vakley School District, by and through its attorneys, Thomas, Thomas and Hafer, LLP, and respeatfutiy files the instant Complaint, stating and averring as follows: 1. Plaintrff Cumberland Vaiiey School District is a Pennsylvania political subdivision with a business address of 6746 Carlisle Pike, Mechanicsburg, PA 17x50. 2. Defendant 9RT, inc. is a Pennsylvania corporation with a business address of 613 North Octorara Trail, Parkesburg, PA 19365-0419 and is engaged in the fuel oil delivery business. 3. Defendant Farm and Home Oil Company is a Pennsylvania corporation with a business address of 3115 State Road, Telford, PA 18969 and is a supplier of fuel oil. 4. Plaintiff operates the Middlesex Elementary School located at 250 North Middlesex Road, Carlisle, Pennsylvania 17013. 5. On or about September 19, 2D05, Plaintiff placed an order for a shipment of oil with Defendant Farm and Mome Oil Company, which order was made pursuant to the contrail attached hereto as Exhibit A. S. Defendant Farm and Home Olt Company contracted with Defendant BRT to deliver the subject oil to the Middlesex Elementary School. Attached hereto as proof of the fact of that agreement without admission of the contents of the document is the Bill of lading {Exhibit B). 7. At all times relevant hereto, Defendant BRT, Inc. was acting on behalf of and as agent for Defendant Farm and Home Oil Company. 8. On or about September 20, 2005 Defendant BRT, inc. made an oil delivery to the Middlesex Elementary School pursuant to its instructions from Defendant Farm and Home Oil Company pursuant to the contract to supply fuel oil entered into between Plaintiff Cumberland Valley School District and Defendant Farm and Home Oil Company. S. ,: At the time of the delivery, personnel from Defendant BRT, tnc. did rat stick the oil tank to determine the amount of oil in the tank prior to pumping oil into the tank. 10. It is standard practice to take suds a stick reading prior to pumping fuel oil on a commercial delivery such as this. 11. , ; The BRT, lnc. Bit! of t_ading has a preprinted place for `Stick Reading' but the "Before" noted was not a stick reading even though it was possible to do a stick reading prior to pumping oil into the tank. 12. Ins#ead of doing a stick reading, the personnel from the Defendant BRT, inc. apparently relied on an irrteriar gauge indicating 9,046 gallons present in the outside 10,000 gallon tank. 2 13. The personnel from the Plaintiff school district requesting the oil delivery did not know the reading on the interior gauge was incorrect on September 19, 2005 and September 20, 2005. 14. Had personnel from Defendant BRT, Inc. taken a stick reading as is cx~stomary for commercial fuel oiI deliveries such as this one, Defendant BRT, Inc. would have known that the fuel oil rec}uested would not have fd into the '10,000 gallon tank and the oil spi!# would have been avoided. 15. Despite having taken no stick reading, Defendant BRT, Int.'s agents and employees proceeded to pump oil from the delivery truck into tt~e oil tank at Middlesex Elementary School. 16. Due to Defendant BRT, Int.'s failure to verify the gauge reading, as Defendanf BRT Inc.'s employees andlor agents were pumping the oil into the outdoor above ground 10,000 gallon tanks ail began to spill out of the tank and onto the area surrounding the tank 17. Contrary #o statements of Defendant BRT, inc. an the Biil of tiding stating that the spill consisted of 15 gallons of fuel oil, Plaintiff has been informed and therefore avers that the estimate of the total fuel oil volume release was a volume greater than 100 gallons and pefiaps as high as several hundred gaNons of fuel ail. 18. As a result of this fuel al spill, the coif surrounding the sut~ject tank was adversely impacted and contaminated. 19. As a result of this contamination, Plairrtiff was forced to pay for extensive remediation .and decontamination procedures at the spill site at a cost of approximately $122,626.90 Attached hereto as Exhibit C is a Summary of Expenses. 20. The damages in this case exceed the mandatory ari,i#ration limits for Cumberland County. 3 COUNT ONE PLAINTIFF v, BRT, INC. NEGLIGENCE 21. Plaintiff Cumberland Valley School District incorporates by reference the averments of paragraphs 1 through 20 of this Complaint as i# set forth at length herein. 22, pe#endarrt BRT, Inc. owed Plaintiff Cumberland Valley School District a duty to sa#ely and properly deliver the subject oil and pump the same into the school district's outdoor above ground oi[ tank without spilling the ail and causing environmental and property damage. 23. Defendant BRT, inc. breached that duty to safely and properly deliver the subject oll and pump the same into the school distnct's outdoor above ground tank without spilling the oil and causing environmental and property damage. 24. Defendant BRT, Inc. through its agents was negligent and careless as follows: {a) Failure to take necessary precautwns to prevent the oil spill in accordance with industry practice; (b) Failure to obtain a proper oil level reading of ,Plaintiff's oil tank prior to pumping the oil into the tank; (c) Failure to use a dip stick to get a -measurement of the oil in the tank prior to pumping oil into the tank; (d) Fallure to use reasonable care under the arcurnstances to adequately observe and monitor the oil being pumped into the sublect ail tank and promptly observe and notice that oil was spilling out; (e) Failure to use reasonable care under the circumstances #o promptly shut off the oil after it began to spill; (f) Failure to take adequate measures to minimize the impact of the oil spill; 4 {g} Faiiur~e to ensure its delivery personnel possessed the necessary experience, skill and training to safely deliver oil without spilling; (h} Failure to ensure that its delivery personnel possessed the necessary experience, skin and training to obtain a correct oil level reading prior to pumping oil into the tank. {i) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to adequately observe and monitor the oil being pumped into the subject oil tank and promptly observe and notice that oil was spilling out; ~) )=allure to ensure that its delivery personnel possessed the necessary experience, skill and training to promptly shut off the oil after it began to spill; {k} Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to take adequate measures to minimize the impact of the oil spill. ; ,. 25. Due to the causative negligence of Defendant BRT, inc. as set forth herein, Plaintiff CumberlandValtey Schoo{ District sustained the damages as set forth on F..xhibit C. WHEREi={?RE, the Plaintiff Cumberland Valley School District demands judgment in its favor and against Defendant BR7, Inc. for an amount of damages in excess of Cumberland County arbitration limits. COUNT TWO PLAINTIFF v. FARM AND HpME q1L COMPANY NEGLIGENCE 26. The Plaintiff Cumberland Valley School bistrict incorporates by reference the avemtents of paragraphs 7 through 25 of this Complaint as if set forth at length herein. 5 27. The Defendant Farm and Home Oil Company accepted an order for oil delivery fo the Middlesex School of Cumberland Valley School District, said delivery to be made on September 20, 2005. 28. ~ Defendant Farm and Home Oil Company awed Plaintiff Cumberland Valley Schoo! District a duty. to safely and property deliver the subject oii and pump the same into the school district's outdoor above ground oil tank, without spitting the oil and causing environmental and property damage. 29. Defendant Farm and Hame Oil Company breached that duty to safely and properly deliver the subject oil and pump the carne into the school district's outdoor above ground tank wtthaut spilling the ail and causing environmental and property damage. 30. Defendant Farm and Home Oil Company through its agents was negligent and careless as follows: (a) Failure to take necessary precautions to prevent the oil spi11 in accordanos with industry practice; {b) Failure to obtain a proper oil level reading of Plaintiffs oil tank prior to pumping the oil into the tank; (c) Failure to use a dip stick to get a measurement of the oil in the tank prior to pumping oil into the tank; {d) Failure to use reasonable care under the circumstances to adequately observe and monitor the ail being pumped into the subject oil tank and promptly observe and notice that oil was spilling out; ' (e) Failure to use reasonable care under the circumstances to promptly shut off the oii after it began to spilh, {f) Failure to take adequate measures to minimize the impact of the oil spill; 8 (g} t=allure to ensure its delivery personnel possessed the necessary experience, skill and training to safety deliver oil without spitting; (h) Failure to ensure that its delivery personnel possessed the necessary experience, skill anti training to obtain a cared oil level reading prior to pumping oil into the tank. (i) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to adequately observe and monitor the ail tieing pumped into the sut~ject oiJ tank and promptly observe and notice that oil was spilling out; (j} Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to promptly shut off the oil after it began to spill; {k) Failure tQ ensure that its delivery personnel possessed the necessary experience, skill and training to talcs adequate measures to minimize the impact of the oil spill.:; 31. Due to the causative negligence of Defendant f=arm and Home Oil Company as set forth herein ;Plaintiff Cumberland Valley School District. sustained the damages as set forth in Exhibit C. WHEREFORE, The Plaintiff Cumt~erland Valley School District demands judgment in its favor and against Defendant Farm and Home Oil Company in an amount of damages in excess of the Cumberland Ccwnty Arbitration limits. COUNT THREE PLAfNTII=F V. FARM AND HOME O1L CC3#1PANY BREACH OF CONTRACT 32. The Plaintiff Cumberland Valley School District incorporates by reference the averments of paragraphs 1 through 31 of the Complaint as if set forth at length herein. 7 33. The Defendant Farm and Home Oil Company suppl'~ed tt~e subject oil to Plaintiff pursuant to a contract for the supply of al as set forth in Exhibit A.. 34. The Defern3ant Farm and Home Oii Company was the successful bidder to supply fuel oil to the Middlesex Elementary School of the Cumberland Valley School District through the bidding process conducted through the Central Pennsylvania i=nergy Consortium during the 200~l2008 bid contract Juiy 1, 2005 through June 30, 2flQ6. 35. Under the suppty contract entered into between Plaintiff Cumberland Valley School District and Defendant Farm and Home Oil Company the oil was to be delivered by Defendant Farm and Home Oil Company in a safe manner without spillage. 3fi. The Defendant Famti and Home Oil Company braeached this contract by the following: {a} Failure to take necessary prscautians to prevent the oil spill in accontance with industry practice; (b} Failure to ot~tain a proper oil level reading of Plaintiff's oil tank prior to pumping oil into the truck; (c) Failure to use a dip stick to get a measurement of the oil in the tank prior.;to pumping oil into the tank; {d} Failure to use reasonable care under the circumstances to adequately observe and monitor the oil being pumped into the subject oil tank and promptly observe and notice that oil .was spilling out; (e) Failure to use reasonable care under the circumstances to promptly shut off the oil after it began #o spill; (f) Failure to take adequate measures to minimize the impact ofi the oil spilt 8 (g) failure to ensure its delivery personnel possessed the necessary experience, skill and training to safety deliver oil without spilling; (h} Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to obtain a correct oil level reading prior to pumping oil into the tank; (i) Failure to ensure that 'tts delivery personnel possessed the riec~ssary experience, skill and training to adequately obsen+e and monitor the oil being pumped into the subject oil tank and promptly observe and notice that oil was spilling out; ~) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to promptly shutoff the oil after it began to spill; (k) Failure to ensure that its delivery personnel possessed the necessary experience, skill and training to take adequate measures to minimize the impact of the oil spill. 37. Paragraph 7 of the Central Pennsylvania Energy Consortium's "Instructions to Bidders" provided as follows: 7. Supplier shall be liable for any damages, overflow of oil, etc., done by tfieir personnel. Successful bidder shall take the necessary precautions to prevent dripping yr spillage. ff spillage should occur bidder will accept liability for EPAlDER penalties_ Retrieval of fuel not meeting specifications wi11 be at supplier's expense. 3$. Paragraph 9 of the conditions of Bid provided as follows: 9. The successful bidder will bs responsible for any damage to ~, property caused by the sucxessful bidder or their agerrts. Supplier further ;; covenants and agrees to assume and does hereby assume alt I'iability for, - and shalt and doss agree ta, indemnify and save harmless the participants against any and ail Toss, costs, suits, claims, cfiarges or damages arising from injuries sustained by mechanics, laborer, workmen or by any person 9 or persons, whatsoever, to their persons or property, whether employed in and about the said work or otherwise, by reason of accidents, damages or injuries, torts or by reason of the performanoe of this contract and the performance of said work and labor, induding costs, counsel fees, and all expenses of defense, and agrees to carry the usual Property Damage and Liability insurance and to furnish certificates therefore, when required by the participants. 39. K was agreed that the Supplier Defendant Farm and Home Oil Company shall be liable for any damages regarding overflow of oil done by their personnel induding acoepting liability for EPAIDER penalties should spillage occur. 38. The Defendant Farm and Home Oil Company agreed as successful bidder that it would be responsible for damage to property caused by Defendant Farm and Home Oil Company or their agents. 39. As the supplier, Defendant Farm and Home Oil Company agreed to assume all liability for damages and indemnify and save harmless the' pattiapant Cumberland Valley School District against any and all loss or damages arising from injury to property by reason of accidents cx performance of the contract and said work including costs, counsel fees and expenses. 40. Defendant Farm and Home Oi! Company has brieached its contract by failing to accept responsibil'~ty for damages regarding the overflow of oil done by their personnel. 4'l. ~. The Defendant Farm and Hama Oi! Company has breached its contract by failing to pay for damage to property caused by Defendant Farm and Home Oil Company or their agents. 42. The Defendant Cumberland Valley School District has damages caused by the breach of cortract of Defendant Farm and Home Oil Company as set forth above inclixling cosfis of the cleanup~and repairs to the site, (See Exhibit C), casts of suit and counsel fees. WHEREFORE, the Plaintiff Cumberland Valley School District demands judgment in its favor and against Defendant Farm and Home Oil Company. 10 Respectfully sutxnitted, THOMAS, THOMAS ~ HAFER, LI,.P ~% r. ~ 1i Byw 11 G. Gate, Esquire l.D.# 26149 Corey J. Adamson, Esquire !.t). # 204508 305 North Front Street P.O. Box 999 Harrisburg, PA 177480999 (717) 255-7100; fax: 717-237 7105 Attorneys for Plaintrft DATE: ~' ~ ssos~t.i 11 VERii=1GATiON i, MICHAEL PVI. WILLiS, have read the foregoing COMPLAINT and hereby affirm that it is true and correct to the best of my personal knowledge or in#ormation and belief. This Verification and statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to sworn falsification to authorities; I verify that al! the statements made in the foregoing are true and correct and that #alse statements may subject me to the penalties of 18 Pa.C.S.§4904. r Nfich Date: ~ 1 ` Q ~ ~so9os.ti of Business ~ Suppor# Services and Valley School Districf CERTtPICATE OF SERVICE !, Randall G. Gale, Esquire, Thomas, Thomas & Hafer, do hereby certify that a copy of the foregoing document was served upon the fallowing by enclosing a true and correct copy in envelopes addressed as follows, postage prepaid, and depositing same in the United States __.-- Mail at Harrisburg, Pennsylvania on the ,~ day of , 2008• Douglas B. Marcello, Esquire MARCELLO i~ KIVISTO, LLC 1501 Commerce Avenue Carlisle, PA 15915 Farm and !-tome Oil Company 3115 State Road P.O. Box 389 Telford, PA 18969 THOMAS, THOMAS & HAFER, LLP • ,, 13y ndalt G. Gale, Esquire 1z June 3, 1005 tl it t: C 0 ~1 G A M Y 91 T5 Slate Road P.O. Bax 3E9 Telford, ~! 18969 zTa-zs7-oTS1 Fax: 2T s~7-20x8 httpJlwww. thail.comJ Laver Bucks Division ~T~ te~vtttev~-n Parkway avitlvwn, QA T9U54 ~s~-a7r2 Fax:fi1519d3-?660 Mitton Division p o. a~ so A~liiton, PA 17547 570r7d2-87'15 Fax: 57DJ74236E3 t,Aacunpie Division f?a. Scoc 146 Macungie, PA 111362 ES{Y965-6076 Fax: E1019E`r7099 f'ottslown Division 552 N. Manatawr>y Street Pottstown, PA T 9464 6TOf32fr4&41 Fax: ST0~+970-D744 Mr. Paul L. Zeigler Cents! PA Energy Consortium and Cap'ltat Area IU 55 Miller Street Summerdale, PA 17093 Dear Mr. Zeigler: Please accept this letter as confirmation that Farm & Mome Ciil Company will furnish the products listed on the enclosed report with the exception of fast oil to Dauphin County. These gallons were awarded to ISO Bunkers and not Fame ~ Home Oil Company. We have also enclosed our performance bond and certificate of insurance as requested. Sincerely yours, Thank you for the opportunity to participate in this joint purchasing program. Farm ame ail Company r Rodney Derstin , VP Supply & Distribution rdldlf Enclosures Central Pennsyl~~ania Energy Consortium {OPEC} Member Name Aelivery Location Farm & Home Oil Company Cumberland Type ofFual: Diesel, #2 Law Sulphur Cumberland Valley 5d~ool District iCauffmans Bus Service ~QUS-2006 Fuel Supplies $id .Award by ~%enclor 2005-200tiUsage 2004-20U5 EstlrnateJGaiions Usage Gallons Transport 55000 Cumberland Valley Sr~rool District Millers Bus Service 711000 Hampden Township ~.~.~_-_.._- ----• - Highway Garage 650010 ~-------.-...._..._ Total Estimate: ~ 190,ot)or otal Usage 0405: Typc of Fuel: Diesel, #2 Low Sulphur 74134 or 84124 Transport Lower Allen Townsf+.ip ~ 22000 ..^^~ Total Estimate: j C; f^•-'' 22,00o/Totaf Usage 0403: Type oJFuel: Fuel Oi! TransporE Big Spring School Dlshic~ Sig Spring hi'igh Scholl 50000 Big Sprir-g School District DisUtcl Administrative office Bldg 27000 Big Spring School District 1=ranktord Elementary School 1G000 Big Spring School Oistrict A+Hfflin Elementary Sd~ool t 1000 Big Spring School Dlsfric# ldewvile ci~nentary School 12000 Big Spring School District C+ak flat Elementary School 18000 &g Spring School DisMct Plainfield Elementary School 97000 Carlisle Area School District Crestview Elementary 25000 Carlisle Area School District McGowan Building 7000 Carlisle Area Scholl District f~farlh Didiv~son 7800 Cumberland Valley Sch6o1 District Cumberland Val}ey Nigh School 0 Cumbew'land Valley Schaoi District Eagle View Middle Sdiod 0 Cumberland Valley School District Good Hope Middle School 0 Curnbedand Valley Schad District t:xeen midge )=lementary 25000 Cumberland Valley 5drgol District Middlesex t" lemenlary 15000 Cumberland Valley Scholl District Monroe Elementary 20000 Cumberland Valley Sd~od 1]isiricl Shaul{ Etemeritary 20000 Cumberland Valley Sct,od Distrir~ Silver Spring Fasmentary 0 Cumberland-Perry Vo-Tech School Cumberland-l7erry Vo-Tech School 50W0 West Shore Scholl District Allen Middle Sctwoi 38040 West Shore Scholl District Cedar Cliff Higri7 School 80000 West Stwre Scrrod Distric! Fi'ighfand Elementary Scrod 20040 West Shore Scholl T?istrict Hitisidr, elementary Scholl 20000 Tucsriay, Muv 24; 28U5 Pugr 1 of i9 F(equested By/Program M1CFL9E~ ...~EF.FEN3ACH CIJMBERI.~AND VALLEY SCFIOOL D1:BT 67 S b CP.RLI SLE E~7KE Mu'CHf.N3C~8UkC, PP, 17050 FtJRCHA.SE ORDER N0.06o0100$ os-oE• r°iscr,~. ~~.~,v THZ$ N[TMHE& MUST P.PPEAR ON L7.f" + CORItESPONUENCE, ITrNOICES i BACKAGES ` Ph: 73'1-69'r--6261 ~xt 3323 Fax: 777-795-8990 Ph: E3UU-fi21-6489 Far.' G15-~'S7-2UBE ~ F'F~.kM b t1UME Gl: L CUMF'AN Y { FAFtMtIOME ) L N j11 S 57'kTE RU n BUX 36 9 ~ TELFUkD, Pa 1$y69 x Dade U6/U3/2Ut15 s x MIUDLE~!;}; ELEiNENTAN.Y ~CIiC~UL Y ~SU iVUk7'H MIGULESEX ROAD p CAA,LISLE, UA 7 7U] 3 x p Attn: BOB WHTTZEL Phone: 717-697-2362 .. ~. ~:^ -. ~'~ :) ~-~'; .:: i.l.; ..-!_:'.~~^•-'yp:i~ :~i'~'F~4 .1~~..~8481F J-LVP:~': i~~•~: _..... ~~"~..' i :. - •. ~Yl~ 'YR.[1 rpsx ~...._• i .i. ~.' .Bir~'~.5~ r\^ 1.00 2005--06 E:~T;MAiEO rzz1LLONS 15, UOU OF FUEL GIL AS PER CPEC BID GALS L3U76. UUU '13076.00 ~~.~: r,n:a, ~v: rr,UL'G>;1GLC.K, r.:,+,{UJ. ttrr, YV tHlF. 13, Nl':W t.:UMt1=:Y,J.aANL1 YF. 1(V ~U :COtal ~,~_~, .•. 230-/6. U.U ~~~~ ~ ~ `~%~_ Payment of invvic~s ercecd.au T"l'~ - pries or: PC will r,ot be ironc,teC without autiruriza~_p+, pwxar tc M UieFfEnc,uch, &usiness Mg: shipmerr . PURC}3ASE OFtbER }ERNS S CONUITIOl7S ACCOUN'_' DISTY.T9i7'1•ION SU-2606-G24-OUO-10-223-ODG-OOU-LOGO 23U7E.U0 Central Pennsylvania Energy Consortium (CPEC) GPEC Member: Cumberland Valley School Disfricf Farm & Horne 011 Company 31'15 State Road Box 389 - Telford, PA 1$969 .Diesel, #2 .Low Sulphur Kauffrnans Bus Service Jason Petrolf 1565 Jerusalem Road 71 T-737-3396 Mechanicsburg, PA 97050 ZOU~~2Q06 Fuel Supplies Bid A~~~ard Report Contact: Rodney Derstine Phone: 800 821-6A89 Fax: 215 257-208$ Transport Price pet gallon: 1.5594 Tank Size: Fik Pipe Sire: Special Notes: 14,004 4" Dual Fuel Capable: ^ . Above Ground Tank ^ i3elow Ground Tank 1~ 2005.200b Estimate Gallons: 55000 Diesel, #2 Lofv Sulphur Millers Bus Service Allen Miller 1189 Boiling Springs Road 717-256.3371 Mechanicsburg, PA 17055 Dual Fuel Capable: ^ Above Ground Tank ^ 2005-2006 Estimate Gallons: 70000 Transport Price per gallon: l'.5594 Tank Size: FiA Pipe Size: Special Notes: 10,000 4" Below Ground Tank e fiuel Oil - Transport Price per gttllon: ,1.5384 Shaun Elementary Bill Yeager lank Size: FAI Pipe Size: Special Notes: 9920 Good Hope Road 71 T•732-2460 10,000 4" Enota, PA 17025 Qua! Fuel Capable:l] " Above Ground Tank ^ Below Ground Tank 2D05-xODb Estimate Gallons: 20000 Fuel Oil Monroe Elementary Mall Wesl 1240 So{ling Sprtngs Road T17-697-0028 Boiling Springs, PA 17007 Dual Fuel Capable: ^ 2005-2008 £s$mate Gallon Transport Price per gallon: 1.5384 Tank Size: F111 Pipe Size: Specla! Notes: 10,000 J" Above Ground Tank ^ Below Ground tank 5: zo4o4 Fuel Oil Silver Spring Elementary Bob Kreiger 6746 Carlisle Pike 717-7B1'r3332 Mechanicsburg, PA 17050 Rual Fuel Capable:^ Above Ground Tank ^ 2005-2008 Estimate Gallons: 0 Transport Price per gallon: 1.5384 . Tank Size: Fill Pipe Size: Specla! Notes: 8,000 4" No Fuet Needed this contrect Befaw Ground Tank ~/ 'Tuesdxv. ~iav 3Q, 2(1U~ r.......__..:- .. _ _....- - _ Central Pennsyl~rania Energy Consortium t;CP.EC) CPi*C Member:- Cumberland Valley Schoo( District farm 8 Home Oii Company 3'! 9 5 Sta#e Roan Qox 389 Telford, PA 18969 Fuel Oil Cumberland 5/ailey High School Karen Hardy 6746 Carlisle Pike 717-50E-3321 Mechanicsburg. PA 17tJ50 Dual Fuel Capable: ^ Above Ground Tank 2005-2006 Estimate Gallons- D ?{I05-?OU6 Fuel Supplies ~3id Award Report Contact: Rodney Derstine Phone: 800 821-64$9 Fax: z1s zs7-Zara :l'ransporl Price pctr gallolt: 1.5384 Tank Size: Fill Pipe Sixe: Special Notes: 12,p00 3" No Fuel Needed this contract Below Ground Tank ^ Fuel Oil Transport Price per gallon: 1.5384 Eagle View Middle School 5cpti Fiesaler Tank Size: FUI Pipe Size: Special Notes: 6746 CarUsle Puce 717-766-0217 10,000 2.3" No Fuel Needed this contract Mechanicsburg, PA 97050 Dual Fuel Gapable: ^ Above Ground Tank ® Below Ground Tank ^ 2005-2006 Estimate Gallons: 0 Fuel Oil ~ Transport Price per gallon:. 1.5384 Green Wdge Elementary Merv Madson ~ Tank Size; FBI Plpe Size: Special Notes: 1 Green Ridge Road 717-76ii-4911 10,000 4" Mechanicsburg, PA 17055 Dual Fuel Capable: ^ Above Ground Tank [] Below Ground Tank ^ 2005-2006 istimate Gallons: 25000 Fuel Oll Good Hope WTiddle School George l<achner 451 Skyport Read 717-761-1titfb5 Mechanicsburg, PA 17050 Dual Fuel Capable: ^ Above Ground Tank Q 2005-2005 Estimate Gallons: 0 Fuel Uil lAiddtesex Elementary Bob Whitzel 250 North WSddieser. Road 717.249-558fi Carlisle, PA 17013 Dual Fuei Capable: ^ Above Ground Tank 2005-206fi Estimate Gallons: 1500D E I'ursd sv. ~lnv ?~. ?00~ Transport Frice per gallon: 1.5384 Tank SFie: F1R Pipe Size: Speaal Notes: 10,OOp 3" No Fuo! Needed this t~nlraCl below Ground Tank ^ Transport Price pergallnn: 1.5384 Tank Size: FiU Pipe Size: Speaal Notes; 10,000 3" t3QJow Ground Tank ^ r'nnirnrt Yr.n•• Inly 1 ~nnc r....n zn ~nnr. Central Pennsylvania Enemy Consortium {CPEC) 200+-?006 Fuel Supplies Bid Award Report CPEC Membsr: Cumberland Valley Schoo! District Farm 8 Home Oil Company contact: Rodney Derstine 3495 Stafe Road Phone: Saos2~-sas9 BoX 389 Fax: 2 y 5 257-2088 Telford, PA 7 89fi9 1. Attach this award report to your orgaaization's purchase order. 2. To calculate purchase order estimated total mnitiply your estimated gallons >Uy the price per gaIloa award price. 3. k'orward your purchase order t~~itb attached report by .Tune XO to: 1'auI L. Zeigler, F.C. Attn: Litz ivlaioli P. Q. Bos B iYew Cumberland, PA 1707U CPEC will foward to vendors. "1'iirsday, 13ay 2~1,?ODS Cuntrxcl 1'carc -lwh• 1 '-nri: _ r.,~,w zn ~nru, OR161NAL GENTRAL PENNSYLVANIA ENERGY CONSORTIUM . $QARD MEMBERS: AoAMS Cou+vTY GAMP HILT. BOROUGH CAPffAL AREA INTERMEDU4TE UNIT CUMBERLAND COUI,ITY DAUPHIN COUNTY HARRISBURG AREA COMMUNITY COLLEGE 1-IOi.Y $PIR1T HOSPfrAI LEBANON CattNTY PERRY COUNTY UPPER DAUPHIN COUNCIL Of GOVERNMENTS TO: VENDORS PROM: Paul 1.. Zeigler, General Counsel Central Pennsylvania Energy Consortium DATE: May 6, 2045 RE: ? 20E}5-2006 FUEL SUPPLIES BID The Central-Pennsylvania Energy Consortium {CPEC) in coordination with the Caprfal Area intermediate Unit {CAIU) are soliciting bids for the following items: Fuel Oil, Grade No. 2 Diesel Fuei, Low Sulphur - Diesel Fuel, Uttra Low Sulphur {Ui.SD) Diesel l=uel, Off Road Unleaded Gasoline 87 Octane Unleaded Gasoline 89 Octane Unleaded Gasoline 92 Octane Unleaded Gasoline 93 Octane Sealed bids are due no cater than 12:04 noon on Thursday, May 19, 2005, and will be opened at 12:04 noon an Thursday, May 19, 2405, at the Capital Area Intermediate Unit at 5'; Miller Street, Summerdale, Pennsylvania 17093. Bids will be awarded at a special meeting of the CPEC board of directors on Thursday, May 19, 2005. Bidders will be notifed of award results on Thursday, May 19, 2005. Thank you, for your interest in this joint purchasing program. Please do not hesitate to contact the undersigned (717-924-8420) if you have any questions on the enclosed information. THE POW~'R OF COOPEP.ATiON 4 }x:; •, CENTRAL PENNSYLVANIA ~:~~~p~~". :.{-.a ENERGY CONSORTIUM ~~;.., _„ INViTAT10N i"OR SIDS FOR FUEL SUPPUf=5 The Central Pennsylvania Energy Consortium (CPEC), in coordination with the Capita! Area intermediate Unit (CA}U), invites sealed bids for fuel supplies. The sealed foal supplies bid must be delivered, or received by U.S. Mail (fax not acceptab}e), no la#er than 12:00 noon on Thursday, May 19, 2005, to: Capital Area Intermediate Unit {CAIU) Attn: Jan Howe 55 Miller Street P.O. Box 489 Summerdale, Pennsylvania 17093 Sid opening wilt be at 12:00 noon an Thursday, May 19, 2005 in the Herniack Room at the Capital Area intermediate Unit ~ - Full Instructions to Bidders, Conditions of f3id, Spedfications, Form of Proposal, and all other Contract Documents required, maybe obtained from Paul L. Zeigler, at 300 Bridge Street, Second Floor, Mew Cumberland, Pennsylvania 17070. [717-920-8420]. Submit bids based on the Oil Price information Service (OPISI Dai}v Publication for the Harrisburg -Lebanon -Carlisle area on the c}osest pubi'tcation date prior to ifie date of the bid or~enina. Bid awards wi}l be based on the price of the fuel and compliance v+irth the bid specifications, CPEC resen~e the right to reject any or ail buts. Paul L. Zeigler General Counsel Central Pennsylvania Energy Consortium Tuc An1A/Cn fiC C.f1nPFRATI!)Al CENTRAL PENNSYLVANIA ~ '~~ "''~ ~~ GEC ' xw~ ,.,, ENERGY CONSORTIUM ~r..~a.t ` . t_~L.~..~ ~_....Y.....,,,,, INSTRUCTIONS TO BIDDERS 1. Sealed bids utill be received by the CPEC/CAiU, until 12:40 noon.. Thursday,~Ma~19 2005, at the Capital Area Intermediate Unit, Attn: Jan Howe, 55 Miller Street, P. Q. Box 489, Summerdaie, PA 17Q93. 2. All bids shall be submitted in sealed envelopes marked "SEALED BID FQR FUEL SUPPLIES". 3. Bids must be typewritten or written with ink and must be signed by the bidder using only the enclosed form. Unsicined bids will not be considered. 4. A laid bond far 1d% of the bid based on the usage history gaNonage must accompany the bid. SucceSSfu! bidders must provide a performance t>anc! far 10% of the bid award. S. Bid figures shall include all charges, including delivery at the destinations called far, based on the usage history gallonage and estimates reported on the encased bid sheets. Bid figures shai! inc~de all discounts other tfian cash discount. Deductions for State and Federal Taxes from which school districtslmember~ are exempt shall be included in the bid. Participating members upon request will furnish tax exemption certificates. 6. Deliveries will be made #o participating members between the hours of 8:00 a.m. and 3:40 p.m., Monday through Friday, within ~8 hours of request or an automatic delivery schedule as agreed between successful vendor and partiapanL , A dated, metered, pick-up #icket from the point of origin of the shipment or other written verification of delivered amount must be provided at delivery. Usage history gallonage and estimates, storage capacity and number of delivery sites are included on the enclosed bid sheets. 7. Supplier shai! be liable for any damages, overflow of oil, etc., done by their personnel. Successful bidder shall take the necessary precau#ions to prevent dripping or spillage. >f spillage should occur bidder will accept liability far EPA(DER penalties. Retrieval of fuel not meeting specifications will be at supplier's expertise. $. Successful bidder agrees if requested to split transport loads at the same school distiict/mernber to the maximum of tuna locations. Transport vehicle must be ale to safely access bcation in order fr split Toad to happen. 9. A!l bids are to be based on usage history andlor estimated gallonage. The CPEC(CAIU doss not have the power to bind indvidual participants to the purchase of specific amounts. 10. Bidders must bid an ai! delivery sites within a county or counties, but are not required to bid on al! products. Bids'shall be one price for all delivery sites per county. Bidders may bid tankwagon and(or transport prices. Both firm-fixed and fluctuating bids with a cap will be accepted. Specify "firm-fixed" or "fluctuating with cap" on each product bid. 11. Successful vendor will be responsible for a!1 taxes, including filing for any refunds or credits, due on any and ail taxes, including the Federal Excise Tax, from which participants are exempt. 1?. Terms of~the contract will be July 1, 2005 through June 34, 20(?6. Successful vendor(s) will provide purchase reports, itemized by delivery location, to the CPECICAIU following contract completion. Ti ,r 7~nuir-n r+c r`nnnccanr~n~.r . } 'F ~. si•/~ CENTRAL PENNSYLVANIA °~ "j~p~,~~:j;, ENERGY.CONSORTIUM ~±;-~~::, .,,_„ CONDITIONS OF BID GENERAL COtVDiTIONS 1. Local Conditions: All deliveries shall be made as ordered and bidders shall acquaint themselves with local conditions at the locations where delivery is to take place so that note can be made of anything that might affect their bids. 2. Invoici : invoices shall be sent to the business offrce of the school district/member being supplied as stated on purchase orders provided by members following the award. Separate invoices shall be rendered for each delivery ticket signed by an authorized school districtlmember representative. DUPLICATE invoices are required. 3. Discrepancies: tf any bidder finds discrepancies in, or is in doubt as to the true meaning of any part of the plans, specifications or other contract documents, the bidder shall immediately submit to the CPEGCAIU a written request for an interpretation thereof. LEGAL CONDITIONS 1. The Invitation for Bids, Instructions to Bidders, General Conditions of the Bid, Special Condttions (if any), the Spec cations for the supplies andlor materials desired, as well as the Form of Proposal, Agreement and Bonds, shall be collectively known and designated as the "Contract Documents° and together shall form the Contract 2. No bidder may withdraw his bid for a period of 30 days after the da#e set for the opening thereof. 3. The CPEC1CAiU reserves the right to waive any formalities or reject any ar all bids or portions thereof. The CPEG/CAIU members are referred to as the owner and/or the participating members in this bid request. 4. No rights shall accrue to any person submitting a laid or proposal until such bid has been accepted, contract awarded, and the contract finally and completely executed in writing by duly authorized officers of each participant. 5. De osits: Each bid submitted must be accompanied by a cer#if+ed check. cashier's checl~ or a treasurers check drawn to the order of the CPEClCAIU, or a bid bond in the amount of 10°k of the bid, with surety acieptable to the said CPEC/CAIU, except where noted. All Bonds shall be issued by companies su;^rh as will be acceptable to Cf'EGCAIU, and which are authorized to transact business in Pennsylvania. Surety Companies must have a Certificate of Authority as an acceptable Surety on Federal SondS and as an acceptable reinsuring company in accordance with the latest Treasurer's Department Bulletin published by the Fiscal Service Company of Surety Bonds. Tuc Pn~ni~a nc (~:nnDFRATInAI ~ , ' } u:~.'. CENTRAL PENNSYLVANIA ~ ?~+~ ~''~' *, ENERGY CQNSORTIUM ~r:.:CPEC ^ ~~:~~ ,a. P.~y;,,... va.:v..::: .~~ CONDITIONS OF BID, Continued 6. Checks will' be returned to all bidders after the successful bidder has furnished and properly signed all Contract Documents. The successful bidder must complete and deliver all Contract Documents within fifteen {15) days of the date postmarked on the envelope in which the documents are mailed by the Board. fl the bidder to whom an award is made shall fail or refuse to execute the contract within the time specified and allowed for completion, the participants may deduct and retain out of the monies due the bidder or from the deposit required by the above paragraph, such sum as shall be sufFicaent to pay the difference between the price on which the award was made and the price which the participants may or shall be obliged to pay to procure the supplies andlor materials from other sources. 7. 7'he successful bidder shat) provide a Performance Bond to the CP1;C-CAIU in the amount of 10°!0 of the estimated Aurchase within fifteen {15) days of the date postmarked on the envelope in which the documents are mailed by the Board. 8. Evidence of Insurance: The successful bidder shall submit a Certifrcation of Insurance for fleet delivery vehicles. Liability shaft not be less than $1,000,000 single limit liability combined, Praperty Damage $1,000,004. Vendor mus# forward a certificate of insurance for Workers Comp if awarded the bid. 9. The successful bidder will be responsible for any damage to property caused by the successful bidder or their agents. Supplier further covenants and agrees to assume and does hereby assume all liability for, and-shall and does agree to, indemnify and save harmless the participants against any and all loss, casts, suits, claims, charges or damages arising from injuries sustained by mechanics, laborers, workr'~en or by any person or persons, whatsoever, to their persons or property, whether employed in and about the said worts ar otherwise, by reason of accidents, damages ar injuries, torts or by reason of the performance of this contract and the performance of said work and labor, including costs, counselfees, and ail expenses of defense, and agrees to carry the usual Property Damage and Liability Insurance and to famish certificates therefore, when required by the participants. 10. All applicable laws shaft be deemed to be part of these spec cations and the contract shah be read and enforced as though they were included. 1 l . Success#ui bidder must sign contract as prescribed by the forms. When the successful bidder is a corpora6on> documents should be signed ay the President or Vice President and by the Secretary or Assistant Secretary. !f signed by one person, a copy of the authority of such person must accompany me proposal. i 2. In compliance with the Act of the General Assembly, the successful bidder further covenants and agrees fo accept, inso#ar as the work covered by this contract in Pennsylvania is concerned, the provisions of the Workers Compensation Act of 1951, and any such supplements or amendments thereto, which may have been or may hereafter be passed, or shall fife with the participants a certificate from the Department of Labor and Industry, T ._ ..~ ..~.. ~.~ ~...,,,,-,,.-.,,,~r i r -4w •;,~:. CENTr~AL PENNSYLVANIA ` "~'~~'" "~ ~~`~ :;;;.: CPEC ~ti•'~ ~:~ ENERGY CONSORTIUM ~~=~jv :~; CONAlTIONS OF BlD, Corrtinued l3. The bidder agrees, if awarded the contract, to famish and deliver the specified products at such times, at such places and in such quantities as herein specified, and that al( of the products steal( be subject to inspection and approval. In the event that any of the said products shall be rejected as unsuitable or not in conformity with these specifgti4ns, such products of proper quality as set forth in these specifications shall be furnished in place thereof a# the expense of the successful bidder. i;a. In the event that the successful bidder shall neglect or refuse to famish and deliver the said articles or any part thereof as provided in these specificat~ans or to replace any which are rejected as stated in the preceding paragraph, the participants are authorized and empowered to purchase articles in conformity with this contract #rom such party or parties in such quantities in such manner as it shall select at the expense of the successful bidder, or to cancel this contract reserving to itself, nevertheless, all rights for damages which may be incurred by the participants. I5. The bidder agrees that if the contract is awarded to him, he will not assign, transfer or sublet it, unless specific permission to do so is requested in writing by the bidder, and granted in writing by the CPEC/CAIU. ~ 16. NON-COLLUSION STATEMENT -Bidders by submitting a signed Form of Proposal certify that the bid or proposal is not the result of, or affected by, any unlawful act of collusion with any other person or company engaged in the same 4'sne of business or commerce, or any other fraudulent act punishable under Pennsylvania ar United States iaw_ THE POtNEP, OF COOPERATION ~ , y. CENTRAL PENNSYLV~-NIA ENERGY CONSORTIUM FORM Ol" PROPOSAL Faun & Hgme Dil Company VENDOR: DATE: To the: CPEC/CAIU 55 Miller Street P. O. Box 489 Summerdale, PA 17093 }•_ ~i'' ~ :ill`. May ls, zaa5 We, the undersigned, herewith propose and agree to furnish to the participants any item or items at the net prices set opposite each item on the attached sheets. This proposal i5 subject to all the terms of the Contract Documents which include the Invitation for Bids, instructions to Bidders, Conditions of Bid, Special Conditions, if any, the Specifications for the Supplies andlar Materials, and we hereby agree to enter into a written contract to famish such item(s), as may be awarded to us, and to famish such security as these specifications require. Wa understand that the CPEC/CAIU reserves the right to reject any ar all bids or any portion thereof not deemed satisfactory, or to select single items from any bid. The original of.this forrr- of proposal is being re#umed to you containing our bid. A copy was retained for our files. The undersigned bidder cerfifies to having read the lnvitation far Bids, instructions to Bidders, Conditions of Bid, and Specifjcations and offers to furnish supplies and/or materials as specified to CPEClCAIU members, in exact accordance with these specifications and conditions at the prices stated on the attached forms. The following are three references that maybe contacted #o support satisfactory performance of our company for the purchase of similar items contained on this bid: REFERENCES: Company Name Eastern Industries Contact Person 3 un case Phone 610-689-9551 Company Name Penske Track Contact Person Virind S. Gujral Phone 610-775-b174 Company Name Haines ~ Kibblehouse Contact Person Tom bunting Phone 610-Z22-3560 ~ ~ , CENTRAL PENNSYLVANIA ENERGY CONSORTIUM IF ORATION. FUEL SUPPLIES BID FORM OF PROPOSAL, ConiT1NUSD .rw ....A, ..ri..~ ~r I'axm & Home Oil Company /~~ ~~ Corporation Name Signed ~~ President 3115 State Road, Box 369 aryl Hac~anan P. Q. Box/Street Address Type Name 1 Telford, PA 18959 City/State2ip Sri ~ Secr tary 800-321-6489 215-257-2088 3atnes Boyd Telephone Fax Type Na Rodney Derstine, VP Supply & Distribution Type Name and Title of Bid Contact Person Signed < . dfloyd@fh,oil. can www. fhoil .corn E-mail address ~~ 5•>te ~F glD~ R TQADES UND R A t=1CTITlOIJS NAME OR LS A PARTNERSHIP Trading Name Signed P. O. Box/Street Address Type Name and Ti#le CitylStatelZip ~ Signed Bid Contact Person Telephone Fax E-mail address Web Site TrIE POWER of Coop~~ crow 1 T t a ;~ V o 0 ?y c C a rn o ~ p~ m Q V ~ ~ r~ N 1C 1 O ~ m j m a o iQ C ~ ~ r m o j ~ O N ~ N TS 'O ''O '~ `d l 'd~ 'd l b i 'O l 'Cf -i v '0 ~ y O ~.i + ~' V e-1 ltl •r{ ~; N M rI ~ rI ~ ~-I .Q .O r ,O ~ r .t~ r .fl r .Q ~ p Q ~ ~~ ~~ O '~' ti ~ O' ~ O ~ 0 O O C O C O ~ O ~ O O m ~ ~ ~ ~ C Q Q C O ~ c V ~ W G U _ ~i d F' y ~ m C ~ . ~ ~ lL V ~ m = O w ~ a ~ '; r n m_ ~' U ~ ~~ ~ y C~ rn C t!) ~ U~ O Q Q- aa o } + V ~ 7 Y ~~ ~ {x O C o ~ ~ p 9 n n N o H ri o W C a ~ a~ + m a ~ ~ ~ 0 () ua a U ~.. _~ 0 r_ U . ~ , ' 0.~ . ~y~- .` :~~~i ::.~:5: CENTRAL PENNSYLVANIA ,-.x~ ~~'~~ ~~,: CPEC ~ ,.: ''~ ENERGY CONSORTIUM ~'~•~~_-- May 24, 20U5 Rodney Derstine Farm & Hvme Oil Company 3115 State Road, Box 3 89 Telford, PA 18969 RE: Bulk Fuel Bid - 2005!2006 The Central Pennsylvania Energy Consortium (CPEC) established the award for Bulk Fuei Requirements as a result of a special CPEC meeting May 20, 2005, after the bids were opened on May 19, 2005. Notice of the bid award was provided to all vendors on May 20, 2005. A copy of the award is enclosed. Successful bidders must advise by letter that your company will furnish the various items awarded to you as per the enclosed report. Successful bidders must provide a performance bond to CPEC in the ampunt of 10% of the estimated ayvaxd within fifteen {15) days, by June 6, 2005. In addition, in accordance with the Conditions of Bid, evidence of insurance must be provided in the form of a Certificate of Insurance for fleet delivery vehicles. When the Confirmation Letter, Performance Bond, and Certificate of Insurance have been received, members will be notified to issue purchase orders to your company. That purchase order becomes the contract between your company and the member. The contract period for this bid is July 1', 2005 through June 30, 2006. Please contact me if you have any c}uestions regarding this bid award. We appreciate your continued participation in this joint purchase program. Sincerely, Paul L. Zeigler THE POWER OF COOPERATION ~ } ...I M o~~~ w Z ~ ~ U a ~ CY ~ vm, ~ ~ o~ ~a cry \~(~ l f~` O a b s, 0 q ,.*.~ ~• fl:=~i ~ ~• i m ~ ~ + "~ rrW~ VJ 1 II O ~, u ~~~ C ~ `° O '.' quo '' ~ c u o ° °, a ~ ~ u ~ v N ~ ~ 'K a a s~~~ p ~ ~ ~ .G O 0 v " c u ~ v x u `d ~ a ~~~~ ~~a ~ .y ~• ~ .~ V C.. ~n U 0 ~ ~ .:~ ~ -p ~ N r - w .~ ~ ~ - y b ~ 1-• K-I v~x~^ If. _ u~ ~ G? cµi a W U L ~ p C ~ ~ Q ~Eb~~~G ~ .~ 8 ~ ~~~~~~~ W ~ ~~"? ~ o ~~~c~~~ Ems°y 8. C `o ~'M ~ ~ JS N u a g,~,~ d .~ O' ~'~ °mE ~ r a 5 's~k~~ c ~_• ~,~c a~ ~~~~~°9 ~ ti~~~~~ 1 ~~ ~~ 9~~ ~~ c a~~~~a~ g9 ~ a-- ~ ~~ E ~~~~~~~ : ~~~o~~~ ~~E~~ ~ $~;~ ~ ~ N ~ ~ $~~~~~.~ ~~~~~~ ~~~ o ~ ~~~~ m d19 w ~~ ~~~~ ~"~~'~ ~s ~~ ~ ~~ ~ S ~~~ ~ ~ ~~u~~~ -6 M U $$ Q a.~~~ A~p o e ,.. z ~~'a~ ~F ~~~~~~~ ~~'0`~8 ~~~~~~~ "'~ e~ vL .~ n '- s ~ a T~rsso•~ ~ a~.~ ~ ~_~>~E~~ ~~ v ~ G ~'S~ ~ ~ ~ .1@ c V L yp ~ ~7. ~ X Y IUD c 3' V 3 S OL ~ r r .-. G > ~ + , i ~'- ~ i ••~~ NONNTO°n~CrO'SrONO~,•~ryti~S~$ ,_ ~ rGOODOEoH•tq OC1fJtt7Of~~•00Q0Q~~O(ppQOO,~N~pp N ~~Od~1~NrC?sq t~07tl7Nell~rQGA~i"~~t~I CO C ~~~ ~ ~ ifl~~~Wifl~ • X ~. o ~ ~ ~ a ~ ~ ~ • c ~ ~ c c c tin E ~~ ~ a~ • m ~ N c ~ ~ W ~~ ~~ dV ri~~ dm aada~ ~~ ~ ~, .~ E ~,arE~ ~ E ~ Ew~~ D7 ~ O m J~ W L Q1 m m. ~ ~~ a • ¢Ut~u.fl~i ~u,.uSu.~~~.viwoUwu~t- c ~ • ~ V UU fl ~ C G C ~ a. c ~ ~ c fA ? sa i C G ti T •Q~ v(>' Q ~ C G~ _'~ UUw O C C ~ ~. ~ ~ ~, m m •m ~ ~ C 01~ y _ •7 ~ ~ {O~p.C C C E E~~ C!•~ C n~ Q ~ ~~W ~ `~ ~ ~~U U ~~W{~~ O ~F- ~~~ ~~Y~3 ~ ~ ~~~~"~ [a c pct; n. ~ _ ~i ~ '~' _ ~ ~ ~ ~ '~ ~aa p Ol p ~ •~ u- ~ O ~ C G ~ O 7 tr ~ m ]~ QZUUCy~a'~~Z 7~J~000' U ~Y r`-~ -~-~ --t - ~ ~,' i;, ;' ~ ~:~ ~~ ..,. -' '7 • , . ~ ~ y,. F SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-05446 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CUMBERLAND VALLEY SCHOOL DIST VS BRT INC ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: FARM AND HOME OIL COMPANY but was unable to locate Them deputized the sheriff of BUCKS in his bailiwick. He therefore serve the within WRIT OF SUMMONS County, Pennsylvania, to On February 27th 2008 this office was in receipt of the attached return from BUCKS Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Bucks County 48.00 Postage .58 85.58 / 02/27/2008 THOMAS THOMAS HAFER Sworn and subscribe to before me this day of So answer~.:_7 - _ ~_._ ~ .~ .-- ;~.._ ,. ..- - .. ~~- '~ ,_. .r` - rte. ~-"' R. Thomas Klan Sheriff of Cumberland County A.D. Y M ~. ~n The Court of Common Fleas of Cumberla~n~l County, Pennsylvania Ctiunberland Valley School District VS. BRT Inc ~t al 07-5446 civil SERVE : Farn~ and Hom° Oil Company ~ N o . February 8, 2008 Now, , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Bucks County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. . ~~ ~~ Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Affidavit of Service Now, within upon at by handing to a 20 , at o'clock Thank you. M. served the and made known to copy of the original the contents thereof. So answers, Sheriff of Sworn and subscribed before me this day of , 20 COSTS SERVICE $ MILEAGE AFFIDAVIT County, PA -, ~'~ ~ BUC ~~ c `SHERIFF'S RETURN Bucks County Case # 200830356 Invoice to be mailed to .CUMBERLAND County Sheriff's Office Attn: RANDALL G GALE, ESQ Special Instructions I~~FIC~T!"~ ~E~EI~T _rErE:FT ~ '~:kttl~3 1 1~:~5~C1 '~l':tiE~~~FIl1~jll~ ~ ~,'3 EilErs _;{'=F, r;.~~1 t ~. r zl~l;_i'? 1 s?+ T•'s !:r"i l i ~.'~,;'`j €I,;~~; ;~~~;L rilIl'~ ~~~=?~+til Notes TiJTHL '-!-1r°3 ~;~•~.ll_I ~~t~f'~~t `i 1~1 ~r , Filed 1 /25/2008 in CUMBERLAND COUNTY Bucks Case # 200830356 Recd 2/11/2008 Special Instructions Action Civil Action COMPLAINT Plaintiff CUMBERLAND VALLEY SCHOOL - VS - DISTRICT Defendant FARM AND HOME OIL COMPANY 3115 STATE RD TELFORD, PA 18969 Address Served if Different Served~nsier Pa. R.C.P. #402 (A) (i) Defendant personally served (A) (2) (i) Family Member (A) (2) (i) Adult in Charge of Residence (A) (2) (ii) Manager/Clerk at Deft's Lodging (A) (2) (iii) Person in Charge of Busine s By Handling to _4e~~)~ ~ ~/¢L / U~ By Posting Not Served 30 Days Ran Out Defendant Not Home Defendant Moved Address Vacant Defendant Unknown Deputy needs better address Checked Post Office No Forwarding Forwarding Address .~°' Tw ./Bor m/' By Deputy Witness - ~"J` At ~ o'cloc / PM) on ~ ~/9~~~'' The above docume was rve~ on the defendant as per information listed above i Con of Buc s Commonwealth of Pennsylvania. So answers: eriffofBu ounty i Affirmed a scribed before on thi ay , - ~'~ o j~ Prothontary _ ~j~ Affirmed and subscribed before me on this day / / Notary Public My Com. Exp. „" ~ /" 2/11108 ~', 1146 ~ ~ ~~~ loot / / ~.~ ,~ - ;_, .,- r r_ ,~ ,.. ~. a> ~) r '::) 1 n n f # ` +! yn ~t 4f Cg ~ f ~ .~ S ~ ~ 1;"'! ~ a. YOa ~ ~ :n'~G ~ 4 1 ~ ~ ., ~~ *J i ~ ~ ~ ~ ~ r ~ i ~. ~ sJ L .'. £.. ~..L ~Y ;f..• ._ r :, ~ ~.~ .t -~ .,. ~ 3 T.. ~ ~ ~ ~ ~s a r~ 31 ~ C - Z ':}Z~~S Star ~,~11..~;:~a s``~ ,' l?' ~.._~-.~~~) ~..L~~i~s~1..1~~» _~~.~ ~~ ~-'"~~~'T1 vLst~+~+~i ~~~~~p~~~ ~~'~~~ SHERI~F•S ~tE3i1RN CF SERV3CE #~$#;x S~ic:~r ~~• G~F:IG~ ~U~'n=~L.ANC fCilttiTX m ~' ~13~ZT#~f3U5 5~1t~ PLa%,I~a?t~F Ct1M°~~:~ ~~F~ ~A~L £t' SCt#~3t~i. ~JIST~ VS. C~FEt~~}A?~T FARM ANi3 #~^M~ ~Il. CCMP4h~' 311° ~TATe T~Lf'7~'i3, PA 2~'3b9 'su5`~~ "~ ~~'~~~.F47-~~ ~~y~~ AGTI~N ~'E~~ZV~~ FRCN ~~l~~~R~~~~ ~ ~~=~~~~~ ~~PT RAG ~2312".~? °`~CIY~^ Ztr S~i~RZ ~f':S C~'~Yt' FGR S'~Y3C~. TRA~lSACTZ~h +~=8-1-~~c~n RAG ~"'~U"!t" PA?C f4~•~ ~3. ~'?I~~~_;`~ N~~~~~•5 ~'~ T i1R} ~, UNl3 ~ T~ i, R ~ ~ l ~ IL ~~PUTy SCISS ~1~ 31 ~A~! 'G . ' ' ±~AG TT C / t ~ ~ k~ir ~ ; 3 ~'~',n~ '~ ~ y~*~ t 1. i ; ! • T t A R ~'{J N # ~i i ~ 7 ~ ~ ^~t ~ y r t ~! ~ T ! T a A ~# ~ ~.~~ ~~ ~ 1 i F" ~~ i~.s L S~s .I ~l,ll ~ • T N C l l V ~TL~T .;.~ ~~~ f ~M~iR A ~ t ~ t y } ~ ! ( ~177~ il~`ry~ Sw~L Ay t y A r p ~ p {~ /~fT/~ p / ~w~i ~! ~fil~~~i~17 S ~ ~~~1i~?fT'lLP},^', 43 fiL~~.i\T 31~r~• }~ 8f 4'~.. Y!73 ~~u~~.'~3~ N+1^~~~ ~-A~LM#3 T~ CUM~~~LA~~ ~C :~H~~I~FS f~~pT ~TT-~.RANt1Ali. G Gl+~I~,ES RAG •~ TRANS~CTLQM AFB-~.-ti258t3 C ~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Cumberland Valley School District vs. BRT, Inc. and Farm and Home Oil Company No. 07-5446, Term State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant Farm and Home Oil Company's Preliminary Objections to Plaintiff s Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Randall G. Gale, Esquire, Thomas, Thomas & Hafer LLP P.O. Box 999, Harrisburg, PA 17101 Counsel for Plaintiff (Name and Address) (b) for defendants: Douglas B. Marcello, Esquire, Marcello & Kivisto, LLC 1501 Commerce Avenue, Carlisle, PA 17015 Counsel for Defendant, BRT, Inc. Patricia A. Fecile-Moreland, Esquire, Marks, O'Neill, O'Brien & Courtney, P.C. 1800 John F. Kennedy Blvd., Suite 1900, Philadelphia, PA 19103 Counsel for Defendant, Farm and Home Oil Company (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Farm and Home Oil Company Date: March 13. 2008 Attorney for Defendant INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case Is relisted. {PH220430.1 } Patricia A. Fecile-Moreland. Esquire Print your name CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendant Farm and Home Oil Company's Praecipe for Listing Case for Argument of Defendant Farm and Home Oil Company's Preliminary Objections to Plaintiffs Complaint was sent by first-class U.S. mail, postage prepaid, to the counsel below listed: Randall G. Gale, Esquire Thomas, Thomas & Hafer LLP P.O. Box 999 Harrisburg, PA 17101 Counsel for Plaintiff Douglas B. Marcello, Esquire Marcello & Kivisto, LLC 1501 Commerce Avenue Carlisle, PA 17015 Counsel for Defendant, BRT, Inc. ~-- Constance A. Katein, Legal Assistant Date: March 13, 2008 {PH220430.1 } rv ~~ ~ ~ - , ,'~-' r_ _ _ ? . ~ f .' 3$ ° ~ 6Z7~ . . °,i~.f'i ~ ~ _ ~P a r,. ' ~ C~ ` _ e:_ .~ '^-- S3 C.+'? ^C CUMBERLAND VALLEY SCHOOL DISTRICT Plaintiff v. IN THE COURT OF COMMON PLEAS NO 07-5446 CIVIL TERM CIVIL ACTION-LAW BRT, INC. AND FARM AND HOME OIL COMPANY Defendants JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment maybe 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 import to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIIZE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER YOU LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUED FEE OR NO FEES. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 CUMBERLAND VALLEY SCHOOL DISTRICT Plaintiff v. BRT, INC. AND FARM AND HOME IN THE COURT OF COMMON PLEAS NO 07-5446 CIVIL TERM CIVIL ACTION-LAW OIL COMPANY JURY TRIAL DEMANDED Defendants ANSWER, NEW MATTER, AND COUNTERCLAIM OF DEFENDANT, BRT, INC. 1. Denied. Answering Defendant is without information or belief as to truth of the averments of said paragraph, hence it is denied and proof is demanded at time of trial. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e). 2.- Admitted. - 3. Denied. Answering Defendant is without information or belief as to truth of the averments of said paragraph, hence it is denied and proof is demanded at time of trial. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e). 4. Admitted. 5. Denied. Answering Defendant is without information or belief as to truth of the averments of said paragraph, hence it is denied and proof is demanded at time of trial. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e). The averments are further denied as the terms of the document speak for themselves. Any summarization or paraphrasing are denied. 6. Denied as stated. The averments of said paragraph are denied as they state a conclusion of law to which no responsive pleading is required. In the alternative, said averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). The averments are further denied as the terms of the document speak for themselves. Any summarization or paraphrasing are denied. 7. Denied as stated. The averments of said paragraph are denied as they state a conclusion of law to which no responsive pleading is required. In the alternative, said averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). The averments are further denied as the terms of the document speak for themselves. Any summarization or paraphrasing are denied. Any and all allegations of agency are specific denied. 8. Denied in part and admitted in part. The averments of said paragraph are denied as they state a conclusion of law to which no responsive pleading is required. The averments are further denied as the terms of the document speak for themselves. It is admitted that Defendant, BRT attempted to make an oil delivery to Middlesex Elementary School on September 20, 2005. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 9. Admitted in part and denied in part. It is admitted that based upon the representations and assurances of the agents and employees of Plaintiff, the physical and legal limitations preventing same, and the absence of a requirement to do so, BRT's employee did not insert a measuring stick into Plaintiff s tank. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 10. Denied. It is denied that it is standard industry practice to take such a stick reading prior to pumping fuel oil on a commercial delivery such as this. It is further averred that based upon the representations and assurances of the agents and employees of Plaintiff, the physical and legal limitations preventing same, and the absence of a requirement to do so, BRT's employee did not insert a measuring stick into Plaintiff s tank. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 11. Denied as stated. The averments are further denied as the terms of the document speak for themselves. It is admitted that based upon the representations and assurances of the agents and employees of Plaintiff, the physical and legal limitations preventing same, and the absence of a requirement to do so, BRT's employee did not insert a measuring stick into Plaintiff s tank. It is specifically denied that it was possible to do a stick reading prior to pumping the oil into the tank. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 12. Admitted in part and denied in part. It is admitted that based upon the representations and assurances of the agents and employees of Plaintiff that there was only 1046 gallons of fuel in the 10,000 gallon tank, the physical and legal limitations preventing same, and the absence of a requirement to do so, BRT's employee did not insert a measuring stick into Plaintiff s tank. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 13. Denied. It is denied that the personnel from the Plaintiff school district requesting the oil delivery did not know'the reading on the interior gauge was incorrect on September 19, 2005 and September 20, 2005. To the contrary, as documented in the email of Lee M. Brandt, Facilities Director, Cumberland Valley, School District dated November 23, 2005, the true situation was as follows: The existing gauge and alarm system had failed at least 2 times prior to this. A lack of confidence in the gauge prompted us to implement a system to double check the gauge each time the Middlesex head custodian called for oil. Our procedure is as follow: 1. Building custodians call the maint. secretary to request oil. 2. The maint. secretary contacts an HVAC tech to verify. 3. The HVAC tech sticks the tank and calls the maint. secretary to verify a delivery was warranted. 4. The maint. secretary would place the order for the delivery. While our regular secretary has been out on leave, our substitute secretary is designated to order the oil deliveries, however, our substitute was never instructed to follow the unwritten procedures as described above. 14. Denied as stated. It is denied that it is "customary for commercial oil deliveries such as this one" to take a stick reading. It is further averred that based upon the representations and assurances of the agents and employees of Plaintiff that there was only 1046 gallons of fuel in the 10,000 gallon tank, the physical and legal limitations preventing same, and the absence of a requirement to do so, BRT's employee did not insert a measuring stick into Plaintiff's tank. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 15. Admitted in part and denied in part. It is admitted that upon the representations and -assurances of the agents and employees of Plaintiff that-there was only 1046 gallons of -fuel in the 10,000 gallon tank, the physical and legal limitations preventing same, and the absence of a requirement to do so, BRT's employee proceeded to make the delivery of oil. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 16. Denied. Any and all averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 17. Admitted in part and denied in part. It is admitted that based upon information and belief that the amount of oil that escaped as a result of Plaintiff's acts and omissions was approximately 15 gallons. Answering Defendant is without information or belief as to truth of the balance of the averments of said paragraph, hence it is denied and proof is demanded at time of trial. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e). 18. Denied. Answering Defendant is without information or belief as to truth of the averments of said paragraph, hence it is denied and proof is demanded at time of trial. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e). 19. Denied. Answering Defendant is without information or belief as to truth of the averments of said paragraph, hence it is denied and proof is demanded at time of trial. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e). 20. Denied. The averments of said paragraph state conclusion of law to no responsive pleading is required. In the alternative, the averments of said paragraph are denied pursuant to Pa.R.C.P. Rule 1029(e). COUNTI 21. Answering Defendant incorporates the averments of the aforesaid paragraphs of its answer as if set forth in full. 22. Denied. The averments of said paragraph state conclusion of law to no responsive pleading is required. In the alternative, the averments of said paragraph are denied pursuant to Pa.R.C.P. Rule 1029(e). 23. Denied. The averments of said paragraph state conclusion of law to no responsive pleading is required. In the alternative, the averments of said paragraph are denied pursuant to Pa.R.C.P. Rule 1029(e). 24. Denied. In the alternative, the averments of said paragraph and all subparts thereto are denied pursuant to Pa.R.C.P. Rule 1029(e). 25. Denied. The averments of said paragraph state conclusion of law to no responsive pleading is required. In the alternative, the averments of said paragraph are denied pursuant to Pa.R.C.P. Rule 1029(e). Wherefore, Answering Defendant requests this Honorable Court to dismiss Plaintiff's Complaint and award Defendant costs and attorney fees. COUNT II 26. Answering Defendant incorporates the averments of the aforesaid paragraphs of its answer as if set forth in full. 27- 31. The averments of said paragraphs are directed to a party other than answering defendant and thus no responsive pleading is required. In the alternative, if a responsive pleading is required, the averments of said paragraphs are denied pursuant to Pa.R.C.P. Rule 1029(e). Wherefore, Answering Defendant requests this Honorable Court to dismiss PlaintifFs Complaint and award Defendant costs and attorney fees. COUNT III 32. Answering Defendant incorporates the averments of the aforesaid paragraphs of its answer as if set forth in full. 33-42. The averments of said paragraphs are directed to a party other than answering defendant and thus no responsive pleading is required. In the alternative, if a responsive pleading is required, the averments of said paragraphs are denied pursuant to Pa.R.C.P. Rule 1029(e). Wherefore, Answering Defendant requests this Honorable Court to dismiss Plaintiffls Complaint and award Defendant costs and attorney fees. NEW MATTER 43. Answering Defendant incorporates the averments of the aforesaid paragraphs of its answer as if set forth in full. 44. Some or all of Plaintiff s claims may be barred by the applicable statute of limitations. 45. Some or all of Plaintiffls claims maybe barred by waiver. 46. Some or all of Plaintiffls claims may be barred by settlement and/or release. 47. Some or all of Plaintiff s claims may be the result of the carelessness or negligence of an individual or entity other than Answering Defendant. 48. Some or all of Plaintiffls claims maybe barred by impossibility of performance. 49. Some or all of Plaintiff s claims maybe barred by illegality. 50. Some or all of Plaintiff s claims maybe barred by justification. 51. Some or all of Plaintiff s claims may be barred by Plaintiff's assumption of risk. 52. Some or all of Plaintiff s claims may be barred by Plaintiff's comparative and/or contributory negligence. 53. At the time of the delivery at issue, Plaintiff knew that the electronic gauge for the oil tank in question had failed prior to the delivery at issue. 54. At the time of the delivery at issue, Plaintiff knew that the electronic gauge for the oil tank in question had failed at least two (2) times prior to the delivery at issue. 55. At the time of the delivery at issue, Plaintiff knew that the alarm system for the oil tank in question had failed prior to the delivery at issue. 56. At the time of the delivery at issue, Plaintiff knew that the alarm system for the oil tank in question had failed at least two (2) times prior to the delivery at issue. 57. At the time of the delivery at issue, Plaintiff believed that the oil tank in question contained 6,100 gallons of fuel oil. 58. Despite the fact that at the at the time of the delivery at issue, Plaintiff believed that the oil tank in question contained 6,100 gallons of fuel oil, Plaintiff failed or refused to so inform the agent or employee of BRT, Inc. who delivered the fuel oil. 59. At the time of the delivery at issue, Plaintiffhad a lack of confidence in the electronic gauge and alarm system for the oil tank in question. 60. At the time of the delivery at issue, Plaintiffs lack of confidence in the electronic gauge and the alarm system for the oil tank in question necessitated a procedure for Plaintiff to follow to prevent a spill of fuel oil due to overfill. 61. At the time of the delivery at issue, Plaintiff failed to follow and perform the procedure for Plaintiff to follow to prevent a spill of fuel oil due to overfill necessitated by Plaintiff s lack of confidence in the electronic gauge and the alarm system for the oil tank in question. 62. Lee M. Brandt, Facilities Director, Cumberland Valley, School District wrote in an email dated November 23, 2005, the true situation was as follows: The existing gauge and alarm system had failed at least 2 times prior to this. A lack of confidence in the gauge prompted us to implement a system to double check the gauge each time the Middlesex head custodian called for oil. Our procedure is as follow: 1. Building custodians call the maint. secretary to request oil. 2. The maint. secretary contacts an HVAC tech to verify. 3. The HVAC tech sticks the tank and calls the maint. secretary to verify a delivery was warranted. 4. The maint. secretary would place the order for the delivery. While our regular secretary has been out on leave, our substitute secretary is designated to order the oil deliveries, however, our substitute was never instructed to follow the unwritten procedures as described above. 63. A true and correct copy of the email of Lee M. Brandt, Facilities Director, Cumberland Valley, School District dated November 23, 2005 made in the ordinary course of business is attached hereto and made a part hereof as Exhibit A. 64. BRT driver ("Driver"), arrived at the Middlesex Elementary School on September 20, 2005 at 11:00 a.m. 65 The "Driver" was at that location to deliver heating oil to Middlesex Elementary School. 66. The oil tank ("tank") to which the delivery was to be made was anabove-ground tank. 67. There was no spill protection or spill containment at or around the "tank" to prevent any spilled oil from leaving the concrete pad and getting into the soil. 68. There were no gauges on the "tank". 69. The only gauge to indicate the tank's contents was located inside the school building. 70. The "Driver" proceeded to check with the janitor before delivering the oil to the "tank". 71. The janitor took the "Driver" to the boiler room. 72. There was a float screen monitor on the wall. 73. The janitor told the "Driver" that this was the only gauge for the "tank". 74. The janitor told the "Driver" that the gauge on the wall indicated 1,046 gallons. 75. The janitor told the "Driver" that the tank held 10,000 gallons. 76. The "Driver" intended to deliver 7,500 gallons of heating oil. 77. Based upon the janitor's representations that the capacity of the tank was 10,000 gallons and that it contained 1,046 gallons prior to the "Driver" commencing his delivery of 7,500 gallons, the "Driver" commenced his delivery. 78. The janitor with whom the "Driver" spoke knew that the gauge did not work and/or could not be relied upon with confidence. 79. The janitor with whom the "Driver" spoke knew that the gauge did- not work and/or could not be relied upon with confidence but did not convey such information to the "Driver". 80. In the alternative, Plaintiff failed to inform and/or warn the janitor with whom the "Driver" spoke that the gauge did not work and/or could not be relied upon. 81. Despite its knowledge that the gauge did not work and/or could not be relied upon with confidence, Plaintiff failed to post or otherwise warn the "Driver" or other reasonable anticipated to be in his position that the gauge did not work and/or could not be relied upon. 82. After there were indications of a possible spill, the janitor told the "Driver" that there should have been capacity in the tank for his delivery. 83. After there were indications of a possible spill, the janitor and the "Driver" examined the float gauge. 84. After there were indications of a possible spill, the float gauge indicated that the tank contained 1,046 gallons of heating fuel. 85. After the spill, the janitor contacted Bob Early who contacted Lee Brandt. 86. Lee Brandt came to the scene shortly thereafter. 87. The "Driver" showed Lee Brandt the reading on the float gauge when Brandt arrived at the school. 88. Lee Brandt agreed that the float gauge was defective. 89. Lee Brandt told the "Driver" that BRT was not at fault. 90. Lee Brandt told the "Driver" that BRT was not liable. 91. The oil tank in question was equipped with an overfill alarm system. 92. Lee Brandt wrote after the spill at issue, "I can not confirm that the overfill alarm worked." 93. Plaintiff knew or should have known that the gauge would reasonably be relied upon by the "Driver" or those in his position. 94. Had the gauge been operating properly on the date at issue, this spill at issue would not have occurred. 95. Plaintiff knew or should have known that the overfill alarm would protect against or reduce the amount of a spill such as that which is at issue. 96. Had the overfill alarm been operating properly on the date at issue, the spill at issue would not have occurred. 97. Had the overfill alarm been operating properly on the date at issue, the spill at issue would not have been in the amount or to the extent claimed. 98. Prior to September 20, 2005, Cumberland Valley School District ("Cumberland Valley"), by its agents, contractors, or employees made modifications because the fill pipe was not allowing the proper flow of product into the tank. 99. Prior to September 20, 2005, "Cumberland Valley", by its agents, contractors, or employees modified the shut-off valve. 100. Had the shut-off valve been operating properly on the date at issue, the spill at issue would not have occurred. 101. Some or all of Plaintiff s claims are barred or reduced by the "gist of the action." 102. Some or all of Plaintiff s claims are barred or reduced by the economic loss doctrine. COUNTERCLAIM 103. BRT, Inc. incorporates the averments in the paragraphs above as if set forth in full. 104. BRT, Inc. incurred the costs and expenses of responding the spill at issue. 105. Based upon the preceding averments, the spill at issue was the result of the carelessness, negligence, gross negligence, and/or recklessness of Plaintiff. 106. The aforesaid facts were made known to Plaintiff's counsel by correspondence from Defendant BRT, Inc. dated June 20, 2006 and December 8, 2006. 107. Plaintiff s action is without a reasonable basis in fact or law. 108. Plaintiff s commencement of this action was arbitrary, vexatious, and in bad faith. 109. Plaintiff s continuing pursuit of this action is obdurate and vexatious. 110. BRT, Inc. is entitled to attorney fees pursuant to 42 Pa.C.S.A. §2503. Wherefore, BRT, Inc. requests this Honorable Court enter judgment in the amount of its costs and expenses in the response to said spill and in the amount of attorney fees and costs. RESPECTFULLY SUBMITTED: Do as .Marcello (I.D. Number 36510) Marcello & Kivisto, LLC 1501 Commerce Ave. Carlisle, PA 17013 O: (717)240-3686 F: (717)258-4686 dmarcello(a~cdl-law.com Fage 1 of 2 Mike Wily -Middlesex oil spill iFrom; Lee Brandt To; Willis,. Mike. Date: 11/23/2005 2:43 PM Sub3eci`: Middlesex oil-spiA 1. The MS. Head Custodian coiled the maim. secretary on 9/19/05 at 9:45 A.M. to order oil. 2. The maim. secretary placed the-order for a tanker load of oil @ 9:47 A.M. 9/19/05. 3, A. the'tanker arrived shortly after 8:00 A'.M. 9/20/05 but didn't realize we had an above ground tank until he arrived. (He was prepared fora gravity flow, in-ground tank B. The second truck aMved @ 11:40 A.M. 9/20/05 and proceeded to pump oil into our tank. 4. I was notified @ 12:20 F.M, 9/20/05 about the oil spill at M.Sex, and I immediately went to tfre site. When I arrived there were 2 men from 6 R T (the oil delivery company) cleaning up ail fmm the concrete pad caused by the overfill. The one gentleman ntroduo2d himself not by name, but that he was the company trainer.teaching the other individual, who was driving, The trainer indicated that he tfiought they may have lost CcD10 to'15 gallons of oil. 5. The electronic gauge mounted in the boiler room failed. The electronic gauge was reading 1100 gallons. In reality we believe the tank had ~a 6100 gatlon in, prior to the delivery, based on a stick measurement dorms in August by one of our HVAC techs The existing gauge and alarm system had failed at least 2 times prior to this. A lack of confidence in the gauge prompted us to implement a system to double check the gauge each time the Middlesex head custodian called for oil. ©ur procedure is as follows: I. Build[ng custodians call the maim. secretary to request oil. > , 2. The maim, secretary contacts an HVAC tech to verify. 3.The HVAC tech sticks the tank and calls the maim. secretary to verify a detr/ery was warranted, 4. The matnt. secretary would then place the order far delivery. While our regular secretary has been out on leave, our substitute secretary is designated to order the oil deliveries, however, our substitute was never instructed to follow the unwritten proce~Jures as described: above. I ~n not confirm that the ovetfiH atarrn worked. The alarm is located in the boiler room, and it was not in alarm when I arrived. The gauge system was repaired 2 rimes before, as recently as the spring of 2004 Lee M. Brandt Facllifies Director Cumberland Valley' SD file:/!C:lnocuments and SettngsMWillislLocal SettinsslTemn~'¢rnwse\4384~FF4cvdomaindavo... 9/11/2007 _. },, VERIFICATION f~Yl ~~Y A I, 1 4~ hereby venfy that the averments made m the attached document are tr a and correct to the best of my information, knowledge and belief based upon the information available. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. By: Dated: ~ '~y ~ ~~ CERTIFICATE OF SERVICE I certify that the foregoing document in the within action was served upon the following by enclosing the same in an envelope addressed as follows, postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 21St day of March, 2008. Randal G. Gale, Esq. Thomas, Thomas & Hafer LLP P.O. Box 999 Harrisburg, PA 17108 Patricia A. Fecile-Moreland, Esq. Marks, O'Neill, O'Brien & Courtney, P.C. Suite 1900 1800 John F. Kennedy Blvd. Philadelphia, PA 19103 ~---- Do as arcello c: ~ ~'~ ~ r --:' r . , . :,~ 1,.. ,t ,~- y r(~~ { l „ "C'7 ~ ._ ' C j ~d Randall G. ,Esquire Attomey I.D. Corey J. A n, Esquire Attomey I.D. 04508 THOMAS, OMAS & HAFER, LLP P.O. Box 999 Harrisburg, P 17108-0999 717-255-7639 cadamson aw.com Attorneys for laintiff DISTRIC~f, v VALLEY SCHOOL Plaintiff BRT, IN~ ;FARM AND HOME OIL COMP Y, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5446 CIVIL ACTION -LAW JURY TRIAL DEMANDED i PRELIIVlI~tARY ~OBJECTIIONS ~OF PLAINTIFF CUNI€BERLAND ~'A.I:IEY ~SC~iUCIL DISTRICT TO CO[Tl~TTERG`LAINY OF DEFENDANT BRT, INC. I A D NOW, comes the Plaintiff Cumberland Valley School District and files these Pr liminary Objections to the Counterclaim of Defendant BRT, Inc. MOTION TO STRIKE FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT 1. This is an action brought by the Plaintiff Cumberland Valley School District a ainst Defendants BRT, Inc. and Farm and Home Oil Company involving fuel oil spill that occurred on September 20, 2005 during a fuel oil delivery eing made to the Middlesex Elementary School. 2.~ The Defendant oil delivery company BRT, Inc. has filed a Counterdlaim. In the Counterclaim the Defendant BRT, Inc. has alleged as follows: 103. BRT, Inc. incorporates the averments in the paragraphs above as if set forth in full. 104. BRT, Inc. incurred the costs and expenses of responding to the spill at issue. 105 Based upon the preceding averments, the spill at issue was the result of the carelessness, negligence, gross negligence, and/or recklessness of Plaintiff. 106. The aforesaid facts were made known to Plaintiff s counsel by correspondence from Defendant BRT, Inc. dated June 20, 2006 and December 8, 2006. 107. Plaintiffs action is without a reasonable basis in fact or law. 108. Plaintiffs commencement of this action was arbitrary, vexatious, and in bad faith. 109. Plaintiff s continuing pursuit of this action is obdurate and vexatious. 110. BRT, Inc. is entitled to attorney fees pursuant to 42 Pa.C.S.A. § 2503. Wherefore, BRT, Inc. requests this Honorable Court enter judgment in the amount of its costs and expenses in the response to said spill and in the amount of attorney fees and costs. 4. The part of the Counterclaim making claim for attorney fees based on allege arbitrary, vexatious, obdurate or bad faith conduct pursuant to 42 Pa. C.S.A. § 503 is not properly raised in the underlying action. See, Shevchik v. 2 8 Pa. D. & C. 4th 66 (C.C.P. Westmoreland Cty, 1990); Seahetti v. 2esorts of Gettysburg 19 D. & C. 4th 218 (C.C.P. Adams Cty 1993); Standar~ Pennsylvania Practice 2d, § 127:53. 5. The Plaintiff moves to strike paragraphs 106 through 110 of the Defendant BRT, Inc.'s Counterclaim. 6.~ The Plaintiff also moves to strike that portion of the "wherefore' clause aking claim at this time for attorney fees. MOTION FOR MORE SPECIFIC PLEADING 7. filed reg~ 8. Pa.R.Civ.P. 1028(a) (3) provides for preliminary objections to be ing insufficient specificity of a pleading. Pa.R.Civ.P. 1019(f) requires that items of special damage shall be ly stated. 9. ~ The Counterclaim raised by Defendant BRT, Inc. makes claim for "costs a expenses of responding the spill at issue." 1 The Counterclaim nowhere indicates what costs and expenses are being referred to or the amounts. 11. As items of special damage a description of the cost or expense and amo nt should be pleaded with specificity. 12 The Plaintiff asks that the Defendant BRT, Inc. be required to file a more specific Counterclaim setting forth specific costs or expenses and amounts. 3 REFORE, the Plaintiff Cumberland Valley School District asks that its Prelimin, Objections to the Counterclaim of Defendant BRT, Inc. be granted. Respectfully submitted, DATE: 583778.1 THOMAS, THOMAS 8~ HAFER, LLP By: ndall G. Gale, Esquire I.D.# 26149 Corey J. Adamson, Esquire I.D. # 204508 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7100; fax: 717-237-7105 Attorneys for Plaintiff ~(a~~~ 4 CERTIFICATE OF SERVICE I, ~andall G. Gale, Esquire, Thomas, Thomas & Hafer, do hereby certify that a coy of the foregoing document was served upon the following by a true and correct copy in envelopes addressed as follows, postage prepaid, nd depositing same in the United States Mail at Harrisburg, Pennsyl ania on the _~~ day of April, 2008. Douglas B. Marcello, Esquire MARCELLO & KIVISTO, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 17013 Patricia A. Fecile-Moreland, Esquire Marks, O'Neill, O'Brien & Courtney, P.C. Suite 1900 1800 JFK Boulevard Philadelphia, PA 19103 THOMAS, OMAS & HAFER, LLP By dall G. Gale, Esquire 583778.1 5 a C.. ~ T ' S' 1 ~ ~ `- y~ ~,~ A t~(~ '' - T , 4m. " I'.Y y ~ CUMBERLAND VALLEY SCHOOL DISTRICT, PLAINTIFF V. BRT, INC. AND FARM AND HOME OIL COMPANY, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 07-5446 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT, FARM AND HOME OIL COMPANY, TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. AND NOW, this ORDER OF COURT L b day of April, 2008, the preliminary objections of defendant, Farm and Home Oil Company, to plaintiff s complaint, ARE DISMISSED. By ~ Randall G. Gale, Esquire For Plaintiff ~ Patricia A. Fecile-Moreland, Esquire For Farm and Home Oil Company / Douglas B. Marcello, Esquire For BRT, Inc. sal . y/~`/D8 ~'i~ ~ ~ ~! ~ ~ ~' «. ;~ CV ~ p~? ~ t,LS L J LMt~ °' .~ _l Cam.. t1.. o ~~~ Q ~~,,,, C..3 CUMBERLAND VALLEY SCHOOL DISTRICT Plaintiff v. IN THE COURT OF COMMON PLEAS NO 07-5446 CIVIL TERM CIVIL ACTION-LAW BRT, INC. AND FARM AND HOME OIL COMPANY JURY TRIAL DEMANDED Defendants NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment maybe 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 import to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER. YOU LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUED FEE OR NO FEES. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 CUMBERLAND VALLEY SCHOOL DISTRICT Plaintiff v. BRT, INC. AND FARM AND HOME OIL COMPANY Defendants IN THE COURT OF COMMON PLEAS NO 07-5446 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED ANSWER, NEW MATTER, AND COUNTERCLAIM OF DEFENDANT, BRT, INC. 1. Denied. Answering Defendant is without information or belief as to truth of the averments of said paragraph, hence it is denied and proof is demanded at time of trial. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e). 2. Admitted. 3. Denied. Answering Defendant is without information or belief as to truth of the averments of said paragraph, hence it is denied and proof is demanded at time of trial. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e}. 4. Admitted. 5. Denied. Answering Defendant is without information or belief as to truth of the averments of said paragraph, hence it is denied and proof is demanded at time of trial. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e). The averments are further denied as the terms of the document speak for themselves. Any summarization or paraphrasing are denied. 6. Denied as stated. The averments of said paragraph are denied as they state a conclusion of law to which no responsive pleading is required. In the alternative, said averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). The averments are further denied as the terms of the document speak for themselves. Any summarization or paraphrasing are denied. 7. Denied as stated. The averments of said paragraph are denied as they state a conclusion of law to which. no responsive pleading is required. In the alternative, said averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). The averments are further denied as the terms of the document speak for themselves. Any summarization or paraphrasing are denied. Any and all allegations of agency are specific denied. 8. Denied in part and admitted in part. The averments of said paragraph are denied as they state a conclusion of law to which no responsive pleading is required. The averments are further denied as the terms of the document speak for themselves. It is admitted that Defendant, BRT attempted to make an oil delivery to Middlesex Elementary School on September 20, 2005. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 9. Admitted in part and denied in part. It is admitted that based upon the representations and assurances of the agents and employees of Plaintiff, the physical and legal limitations preventing same, and the absence of a requirement to do so, BRT's employee did not insert a measuring stick into Plaintiff s tank. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 10. Denied. It is denied that it is standard industry practice to take such a stick reading prior to pumping fuel oil on a commercial delivery such as this. It is further averred that based upon the representations and assurances of the agents and employees of Plaintiff, the physical and legal limitations preventing same, and the absence of a requirement to do so, BRT's employee did not insert a measuring stick into Plaintiff s tank. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 11. Denied as stated. The averments are further denied as the terms of the document speak for themselves. It is admitted that based upon the representations and assurances of the agents and employees of Plaintiff, the physical and legal limitations preventing same, and the absence of a requirement to do so, BRT's employee did not insert a measuring stick into Plaintiffs tank. It is specifically denied that it was possible to do a stick reading prior to pumping the oil into the tank. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 12. Admitted in part and denied in part. It is admitted that based upon the representations and assurances of the agents and employees of Plaintiff that there was only 1046 gallons of fuel in the 10,000 gallon tank, the physical and legal limitations preventing same, and the absence of a requirement to do so, BRT's employee did not insert a measuring stick into Plaintiff s tank. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 13. Denied. It is denied that the personnel from the Plaintiff school district requesting the oil delivery did not know the reading on the interior gauge was incorrect on September 19, 2005 and September 20, 2005. To the contrary, as documented in the email of Lee M. Brandt, Facilities Director, Cumberland Valley, School District dated November 23, 2005, the true situation was as follows: The existing gauge and alarm system had failed at least 2 times prior to this. A lack of confidence in the gauge prompted us to implement a system to double check the gauge each time the Middlesex head custodian called for oil. Our procedure is as follow: 1. Building custodians call the maint. secretary to request oil. 2. The maint. secretary contacts an HVAC tech to verify. 3. The HVAC tech sticks the tank and calls the maint. secretary to verify a delivery was warranted. 4. The maint. secretary would place the order for the delivery. While our regular secretary has been out on leave, our substitute secretary is designated to order the oil deliveries, however, our substitute was never instructed to follow the unwritten procedures as described above. 14. Denied as stated. It is denied that it is "customary for commercial oil deliveries such as this one" to take a stick reading. It is further averred that based upon the representations and assurances of the agents and employees of Plaintiff that there was only 1046 gallons of fuel in the 10,000 gallon tank, the physical and legal limitations preventing same, and the absence of a requirement to do so, BRT's employee did not insert a measuring stick into Plaintiff's tank. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 15. Admitted in part and denied in part. It is admitted that upon the representations and assurances of the agents and employees of Plaintiff that there was only 1046 gallons of fuel in t:he 10,000 gallon tank, the physical and legal limitations preventing same, and the absence of a requirement to do so, BRT's employee proceeded to make the delivery of oil. Any and all other averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 16. Denied. Any and all ,averments are denied as stated pursuant to Pa.R.C.P. Rule 1029(e). 17. Admitted in part and denied in part. It is admitted that based upon information and belief that the amount of ail that escaped as a result of Plaintiff's acts and omissions was approximately 15 gallons. Answering Defendant is without information or belief as to truth of the balance of the averments of said paragraph, hence it is denied and proof is demanded at time of trial. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e). 18. Denied. Answering Defendant is without information or belief as to truth of the averments of said paragralh, hence it is denied and proof is demanded at time of trial. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e). 19. Denied. Answering Defendant is without information or belief as to truth of the averments of said paragraph, hence it is denied and proof is demanded at time of trial. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e). 20. Denied. The averments of said paragraph state conclusion of law to no responsive pleading is required. In the alternative, the averments of said paragraph are denied pursuant to Pa.R.C.P. Rule 1029(e). COUNTI 21. Answering Defendant incorporates the averments of the aforesaid paragraphs of its answer as if set forth in full. 22. Denied. The averments of said paragraph state conclusion of law to no responsive pleading is required. In the alternative, the averments of said paragraph are denied pursuant to Pa.R.C.P. Rule 1029(e). 23. Denied. The averments of said paragraph state conclusion of law to no responsive pleading is required. In the alternative, the averments of said paragraph are denied pursuant to Pa.R.C.P. Rule 1029(e). 24. Denied. In the alternative, the averments of said paragraph and all subparts thereto are denied pursuant to Pa.R.C.P. Rule 1029(e). 25. Denied. The averments of said paragraph state conclusion of law to no responsive pleading is required. In the alternative, the averments of said paragraph are denied pursuant to Pa.R.C.P. Rule 1029(e). Wherefore, Answering Defendant requests this Honorable Court to dismiss Plaintiff's Complaint and award Defendant costs and attorney fees. COUNT II 26. Answering Defendant incorporates the averments of the aforesaid paragraphs of its answer as if set forth in full. 27- 31. The averments of said paragraphs are directed to a party other than answering defendant and thus no responsive pleading is required. In the alternative, if a responsive pleading is required, the averments of said paragraphs are denied pursuant to Pa.R.C.P. Rule 1029(e). Wherefore, Answering Defendant requests this Honorable Court to dismiss Plaintiff s Complaint and award Defendant costs and attorney fees. COUNT III 32. Answering Defendant incorporates the averments of the aforesaid paragraphs of its answer as if set forth in full. 33-42. The averments of said paragraphs are directed to a party other than answering defendant and thus no responsive pleading is required. In the alternative, if a responsive pleading is required, the averments of said paragraphs are denied pursuant to Pa.R.C.P. Rule 1029(e). Wherefore, Answering Defendant requests this Honorable Court to dismiss Plaintiff's Complaint and award Defendant costs and attorney fees. NEW MATTER 43. Answering Defendant incorporates the averments of the aforesaid paragraphs of its answer as if set forth in fall. 44. Some or all of Plaintiff s claims maybe barred by the applicable statute of limitations. 45. Some or all of Plaintiff's claims maybe barred by waiver. 46. Some or all of Plaintiff s claims may be barred by settlement and/or release. 47. Some or all of Plaintiff's claims maybe the result of the carelessness or negligence of an individual or entity other than Answering Defendant. 48. Some or all of Plainti ff s claims maybe barred by impossibility of performance. 49. Some or all of Plaintiff s claims may be barred by illegality. 50. Some or all of Plaintiff s claims maybe barred by justification. 51. Some or all of Plaintiff s claims maybe barred by Plaintiff's assumption of risk. 52. Some or all of Plaintiff s claims maybe barred by Plaintiff's comparative and/or contributory negligence. 53. At the time of the delivery at issue, Plaintiff knew that the electronic gauge for the oil tank in question had failed prior to the delivery at issue. 54. At the time of the delivery at issue, Plaintiff knew that the electronic gauge for the oil tank in question had failed at least two (2) times prior to the delivery at issue. 55. At the time of the delivery at issue, Plaintiff knew that the alarm system for the oil tank in question had failed prior to the delivery at issue. 56. At the time of the delivery at issue, Plaintiffknew that the alarm system for the oil tank in question had failed at least two (2) times prior to the delivery at issue. 57. At the time of the delivery at issue, Plaintiff believed that the oil tank in question contained 6,100 gallons of fuel oil. 58. Despite the fact that at the at the time of the delivery at issue, Plaintiff believed that the oil tank in question contained 6,100 gallons of fuel oil, Plaintiff failed or refused to so inform the agent or employee of BRT, Inc. who delivered the fuel oil. 59. At: the time of the delivery at issue, Plaintiff had a lack of confidence in the electronic gauge and alarm system for the oil tank in question. 60. At the time of the delivery at issue, Plaintiff s lack of confidence in the electronic gauge and the alarm system for the oil tank in question necessitated a procedure for Plaintiff to follow to prevent a spill of fuel oil due to overfill. 61. At the time of the delivery at issue, Plaintiff failed to follow and perform the procedure for Plaintiff to follow to prevent a spill of fuel oil due to overfill necessitated by Plaintiff s lack of confidence in the electronic gauge and the alarm system for the oil tank in question. 62. Lee M. Brandt, Facilities Director, Cumberland Valley, School District wrote in an email dated November 23, 2005, the true situation was as follows: The existing gauge and alarm system had failed at least 2 times prior to this. A lack of confidence in the gauge prompted us to implement a system to double check the gauge each time the Middlesex head custodian called for oil. Our procedure is as follow: 1. Building custodians call the maint. secretary to request oil. 2. The maint. secretary contacts an HVAC tech to verify. 3. The HVAC tech sticks the tank and calls the maint. secretary to verify a delivery was warranted. 4. The maint. secretary would place the order for the delivery. While our regular secretary has been out on leave, our substitute secretary is designated to order. the oil deliveries, however, our substitute was never instructed to follow the unwritten procedures as described above. 63. A true and correct copy of the email of Lee M. Brandt, Facilities Director, Cumberland Valley, School District dated November 23, 2005 made in the ordinary course of business is attached hereto and made a part hereof as Exhibit A. 64. BRT driver ("Driver"), arrived at the Middlesex Elementary School on September 20, 2005 at 11:00 a.m. 65 The "Driver" was at that location to deliver heating oil to Middlesex Elementary School. 66. The oil tank ("tank") to which the delivery was to be made was anabove-ground tank. 67. There was no spill protection or spill containment at or around the "tank" to prevent any spilled oil from leaving the concrete pad and getting into the soil. 68. There were no gauges on the "tank". 69. The only gauge to indicate the tank's contents was located inside the school building. 70. Th.e "Driver" proceeded to check with the janitor before delivering the oil to the "tank". 71. The janitor took the "Driver" to the boiler room. 72. There was a float screen monitor on the wall. 73. The janitor told the "Driver" that this was the only gauge for the "tank". 74. The janitor told the "Driver" that the gauge on the wall indicated 1,046 gallons. 75. The janitor told the "Driver" that the tank held 10,000 gallons. 76. The "Driver" intended to deliver 7,500 gallons of heating oil. 77. Based upon the janitor's representations that the capacity of the tank was 10,000 gallons and that it contained 1,046 gallons prior to the "Driver" commencing his delivery of 7,50() gallons, the "Driver" commenced his delivery. 78. The janitor with whom the "Driver" spoke knew that the gauge did not work and/or could not be relied upon with confidence. 79. The janitor with whom the "Driver" spoke knew that the gauge did not work and/or could not be relied upon with confidence but did not convey such information to the "Driver". 80. In the alternative, Plaintiff failed to inform and/or warn the janitor with whom the "Driver" spoke that the gauge did not work and/or could not be relied upon. 81. Despite its knowledge that the gauge did not work and/or could not be relied upon with confidence, Plaintiff failed to post or otherwise warn the "Driver" or other reasonable anticipated to be in his position that the gauge did not work and/or could not be relied upon. 82. After there were indications of a possible spill, the janitor told the "Driver" that there should have been capacity in the tank for his delivery. 83. After there were indications of a possible spill, the janitor and the "Driver" examined the float gauge. 84. After there were indications of a possible spill, the float gauge indicated that the tank contained 1,046 gallons of heating fuel. 85. After the spill, the janitor contacted Bob Early who contacted Lee Brandt. 86. Lee Brandt came to the scene shortly thereafter. 87. The "Driver" showeci Lee Brandt the reading on the float gauge when Brandt arrived at the school. 88. Lee Brandt agreed that the float gauge was defective. 89. Lee Brandt told the "Driver" that BRT was not at fault. 90. Lee Brandt told the "Driver" that BRT was not liable. 91. The oil tank in question was equipped with an overfill alarm system. 92. Lee Brandt wrote after the spill at issue, "I can not confirm that the overfill alarm worked." 93. Plaintiff knew or should have known that the gauge would reasonably be relied upon by the "Driver" or those in his position. 94. Had the gauge been operating properly on the date at issue, this spill at issue would not have occurred. 95. Plaintiff knew or should have known that the overfill alarm would protect against or reduce the amount of a spill such as that which is at issue. 96. Had the overfill alarm been operating properly on the date at issue, the spill at issue would not have occurred. 97. Had the overfill alarm. been operating properly on the date at issue, the spill at issue would not have been in the amount or to the extent claimed. 98. Prior to September 20, 2005, Cumberland Valley School District ("Cumberland Valley"~, by its agents, contractors, or employees made modifications because the fill pipe was not allowing the proper flow of product into the tank. 99. Prior to September 20„ 2005, "Cumberland Valley", by its agents, contractors, or employees modified the shut-off valve. 100. Had the shut-off valve been operating properly on the date at issue, the spill at issue would not have occurred. 101. Some or all of Plaintiff s claims are barred or reduced by the "gist of the action." 102. Some or all of Plaintiff s claims are barred or reduced by the economic loss doctrine. COUNTERCLAIM 103. BRT, Inc. incorporates the averments in the paragraphs above as if set forth in full. 104. BRT, Inc. incurred the costs and expenses of responding the spill at issue in the amount of $2,344.00. 105. Based upon the preceding averments, the spill at issue was the result of the carelessness, negligence, gross negligence, and/or recklessness of Plaintiff. Wherefore, BRT, Inc. requests this Honorable Court enter judgment in the amount of its costs and expenses in the response to said spill in the amount of $2,344.00 plus costs and expenses as warranted by the applicable law. RESPECTFUL SU MITTED: ~~-~ Do~fglas B. Marcello (I.D. Number 36510) Marcello & Kivisto, LLC 1501 Commerce Ave. Carlisle, PA 17013 O: (717)240-3686 F: (717)258-4686 darcello na,cdl-law. com Apr, 28. 2008 ' 1: 54AM No, 1106 P, 2 VERIFICATION I, ~ G ~ hereby verify that the averments made in the attached document are tru and correct to the best of my information, lrnowledge aid belief based upon the information available ~ Y understand that false statements herein are made subject to the penalties of 18 Pa,C,S,A, Section 4904 relating to unsworn falsification to authorities. $y: ~ Dated: ~~-~~/ CERTIFICATE OF SERVICE I certify that the foregoing document in the within action was served upon the following by enclosing the same in an envelope addressed as follows, postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 1St day of May, 2008. Randal G. Gale, Esq. Thomas, Thomas & Hafer LLP P.O. Box 999 Harrisburg, PA 17108 Patricia A. Fecile-Moreland, Esq. Marks, O'Neill, O'Brien 8c Courtney, P.C. Suite 1900 1800 Jahn F. Kennedy Blvd. Philadelphia, PA 19103 Do s arcello TO: ALL COUNSEL YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDG NT MAY BE ENTERED AGAINST YOU. ATTO F DE N~ANT, FARM AND HOME OIL COMPANY MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: PATRICIA A. FECILE-MORELAND, ESQUIRE IDENTIFICATION NO. 83798 1800 JOHN F. KENNEDY BLVD., 19TH FLOOR PHILADELPHIA, PA 19103 (215) 564-6688 Our File No. 779-78185 ATTORNEY FOR DEFENDANT, FARM AND HOME OIL COMPANY CUMBERLAND VALLEY SCHOOL DISTRICT COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. BRT, INC. and FARM AND HOME OIL COMPANY N0.07-5446 JURY TRIAL DEMANDED (12 JURORS) DEFENDANT FARM AND HOME OIL COMPANY'S ANSWER WITH NEW MATTER AND NEW MATTER CROSS-CLAIMS TO PLAINTIFF'S (COMPLAINT Denied. After reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in this pazagraph and, therefore, deny same and demands strict proof thereof at trial. 2. Admitted upon information and belief. PH225792 3. Admitted. 4. Admitted upon information and belief. 5. The document referenced in this averment speaks for itself, therefore, no answer is required. 6. The document referenced in this averment speaks for itself, therefore, no answer is required. 7. Denied. The averments contained in this pazagraph state conclusions of law to which no answer is required. 8. Denied. After reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in this pazagraph and, therefore, deny same and demands strict proof thereof at trial. 9. Denied. After reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in this pazagraph and, therefore, deny same and demands strict proof thereof at trial. 10. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. By way of further answer, however, after reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in this pazagraph and, therefore, deny same and demands strict proof thereof at trial. 11. Admitted in part; denied in part. It is admitted only that the Bill of Lading has a preprinted place for "Stick Read." The remainder of this averment is denied. The averments contained in this pazagraph state conclusions of law to which no answer is required. By way of further answer, however, after reasonable investigation, Answering Defendant lacks sufficient { PH2O9463.1 } 2 knowledge or information to foam a belief as to the truth of the averments contained in this paragraph and, therefore, deny same and demands strict proof thereof at trial. 12. Denied. After reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph and, therefore, deny same and demands strict proof thereof at trial. 13. Denied. After reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph and, therefore, deny same and demands strict proof thereof at trial. 14. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. By way of further answer, however, after reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph and, therefore, deny same and demands strict proof thereof at trial. 15. Admitted in part; denied in part. It is admitted only that Defendant BRT proceeded to pump oil from the delivery truck into the oil tank. It is denied as the averments contained in this paragraph state conclusions of law to which no answer is required. By way of further answer, however, after reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph and, therefore, deny same and demands strict proof thereof at trial. 16. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. By way of further answer, however, after reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth { PH2O9463.1 } of the averments contained in this paragraph and, therefore, deny same and demands strict proof thereof at trial. 17. Denied. After reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in this pazagraph and, therefore, deny same and demands strict proof thereof at trial. 18. Denied. The averments contained in this pazagraph state conclusions of law to which no answer is required. By way of further answer, however, after reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph and, therefore, deny same and demands strict proof thereof at trial. 19. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. By way of further answer, however, after reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in this pazagraph and, therefore, deny same and demands strict proof thereof at trial. 20. Denied. The averments contained in this pazagraph state conclusions of law to which no answer is required. COUNT ONE PLAINTIFF v. BRT, INC. NEGLIGENCE 21. Answering Defendant incorporates by reference paragraphs 1 through 2- above as though set forth fully herein at length. {PH2O9463.1 } 4 22. This averment refers to Defendants other than Answering Defendant, and, therefore, no answer is required. 23. This averment refers to Defendants other than Answering Defendant, and, therefore, no answer is required. 24. This averment refers to Defendants other than Answering Defendant, and, therefore, no answer is required. 25. This averment refers to Defendants other than Answering Defendant, and, therefore, no answer is required. WHEREFORE, Answering Defendant demands judgment in its favor and against all other parties, plus interest, costs and fees and other relief deemed appropriate by the Court. COUNT TWO PLAINTIFF v. FARM AND HOME OIL COMPANY NEGLIGENCE 26. Answering Defendant incorporates by reference paragraphs 1 through 25 above as though set forth fully herein at length. 27. Denied. After reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph and, therefore, deny same and demands strict proof thereof at trial. 28. Denied. The averments contained in this paragraph state conclusions of law Uo which no answer is required. By way of further answer, however, after reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the tn.Xth of the averments contained in this paragraph and, therefore, deny same and demands strict proof thereof at trial. { PH2O9463.1 } 5 29. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. 30. Denied. Answering Defendant, Farm and Home Oil Company, denies that it was negligent, careless and/or reckless, either in general, or by any of the means specified in the sub- pazagraphs (a) through (k) of this pazagraph of Plaintiff's Complaint. To the contrary, Answering Defendant, Farm and Home Oil Company, acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, to the Plaintiff. The remaining averments of this pazagraph of Plaintiff's Complaint constitute conclusions of law to which no response is required under the applicable Rules of Civil Procedure and they are therefore deemed denied. 31. Denied. The averments contained in this pazagraph state conclusions of law to which no answer is required. WHEREFORE, Answering Defendant demands judgment in its favor and against all other parties, plus interest, costs and fees and other relief deemed appropriate by the Court. COUNT THREE PLAINTIFF v. FARM AND HOME OIL COMPANY BREACH OF CONTRACT 32. Answering Defendant incorporates by reference paragraphs 1 through 31 above as though set forth fully herein at length. 33. The document attached and referenced as Exhibit A is a document which speaks for itself; therefore, no answer is required. 34. Admitted. {PH2O9463.1 } 35. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. By way of further answer, however, after reasonable investigation, Answering Defendant lacks sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph and, therefore, deny same and demands strict proof thereof at trial. 36. Denied. Answering Defendant, Farm and Home Oil Company, denies that it was negligent, careless and/or reckless, either in general, or by any of the means specified in the sub- paragraphs (a} through (k) of this paragraph of Plaintiff's Complaint. To the contrary, Answering Defendant, Farm and Home Oil Company, acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, to the Plaintiff. The remaining averments of this paragraph of Plaintiff's Complaint constitute conclusions of law to which no response is required under the applicable Rules of Civil Procedure and they are therefore deemed denied. 37. The document referred to in this paragraph is a document which speaks for itself; therefore, no answer is required. 38. The document referred to in this paragraph is a document which speaks for itself; therefore, no answer is required. 39. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. 38. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. 39. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. {PH2O9463.1 } 7 40. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. 41. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. 42. Denied. The averments contained in this pazagraph state conclusions of law to which no answer is required. WHEREFORE, Answering Defendant demands judgment in its favor and against all other parties, plus interest, costs and fees and other relief deemed appropriate by the Court. NEW MATTER DIRECTED TO PLAINTIFFS 43. Plaintiff s claims aze barred, in whole or in part, on the basis that the Complaint fails to state a claim against the defendants upon which relief can be granted. 44. Plaintiff s claims aze barred, in whole or in part to the extent that the facts indicate that the Doctrines of Laches, Estoppel, Collateral Estoppel, Res Judicata, and/or Waiver applied to any of the plaintiffs claims. 45. Plaintiff's claims are barred, in whole or in part, by he Doctrine of Accord and Satisfaction. 46. Plaintiff s claims aze barred, in whole or in part, because of the Doctrines of Single Controversy and Merger Baz. 47. Plaintiff s claims aze barred, in whole or in part, in that Plaintiff s alleged injuries were caused, in whole or in part, by the actions and/or inactions of one or more persons or entities over whom the Answering Defendant exercised no dominion or control and for whom Answering Defendant is not responsible. {PH209463.1 } g 48. Plaintiff's claims aze barred, in whole or in part, to the extent that the Statutes of Limitations has run on any of the Plaintiff's claims. 49. Plaintiff s claims aze barred, in whole or in part, because of the Plaintiff s own acts and/or omissions. 50. Plaintiffs claims are barred, in whole or in part, to the extent that events resulting in the Plaintiff's alleged injuries and damages were not foreseeable by Answering Defendant. 51. Plaintiff s claims aze barred, in whole or in part, to the extent that the Plaintiff s alleged injuries were caused by intervening and/or superseding causes. 52. Plaintiffs claims are barred, in whole or in part, to the extent that the Plaintiff has failed to mitigate its damages. 53. Plaintiff's claims aze barred, in whole or in part, to the extent that any injuries alleged by the Plaintiff were caused in whole or in part by factors which were not attributable to the Answering Defendant. 54. Plaintiff s claims aze barred, in whole or in part, to the extent that the Plaintiff was contributorily negligent. 55. Plaintiffs claims aze barred, in whole or in part, based upon the applicable of Pennsylvania Comparative Negligence Act. 56. Plaintiff s claims are barred, in whole or in part, to the extent that the Answering Defendant owed any duty to the Plaintiff, the Defendant properly dischazged and did not breach any such duty. 57. Plaintiff's claims aze barred, in whole or in part, to the extent that the Plaintiff assumed the risk of all injuries, which limits and/or bazs all claims. 58. Plaintiffls claims are barred, in whole or in part, because of an express or implied contract and/or release. 59. Plaintiff s claims aze barred, in whole or in part, to the extent that any injury alleged by the Plaintiffpre-existed the incidents which aze the subject matter of the Complaint and/or were caused by events sepazate from any of the events described in this matter. 60. Plaintiff's claims aze barred, in whole or in part, to the extent that any negligence proven by the Plaintiff as to the Answering Defendant were not the proximate cause of any injury alleged by the Plaintiff. 61. Plaintiff's claims aze barred because of statutory and/or common law. 62. Plaintiff s claims aze barred, in whole or in part, because the Answering Defendant complied with all applicable federal and state statutes, laws and regulations regazding the subject matter of this litigation. 63. Plaintiff s claims aze barred, in whole or in part, by the operation of federal law and/or regulations which preempt Plaintiff's alleged state law claims. 64. This Answering Defendant hereby reserves the right to interpose such other defenses as discovery may disclose. WHEREFORE, Defendant, Farm and Home Oil Company, demands judgment in its favor and against all other parties, plus interest, costs and fees and other relief deemed appropriate by the Court. NEW MATTER CROSS-CLAIM AGAINST DEFENDANT, BRT, INC. PURSUANT TO PA R C.P 1031 1 65. Answering Defendant incorporates by reference pazagraphs 1 through 64 above as though set forth fully herein at length. {PH2O9463.1 } 1 Q 66. Answering Defendant avers that if the Plaintiff sustained any compensable injuries or damages as alleged in the Plaintiff's Complaint, said injuries and damages were caused by Defendant, BRT, Inc., for reasons set forth in the Plaintiff's Complaint which allegations are hereby incorporated by reference as if each of said allegations were more fully set forth herein at length. 67. Answering Defendant further avers that pursuant to an agreement between Answering Defendant and Defendant BRT, Inc, for the delivery of fuel to Plaintiff, Defendant BRT, Inc. owes to Answering Defendant indemnification, defense and to hold Answering Defendant harmless against all liability arising from acts or omissions of Defendant BRT, Inc. 68. For the purposes of this Cross-Claim only Answering Defendant avers that if the Plaintiff suffered injuries and damages as alleged in the Plaintiff's Complaint, and if not caused by Plaintiff's own negligence and/or assumption of the risk, any injuries, damages and/or losses sustained by the Plaintiff were due solely to the negligence, carelessness, recklessness and/or other conduct of Defendant, BRT, Inc., and were in no way due to the acts or omissions of the Answering Defendant. WHEREFORE, Answering Defendant, Farm and Home Oil Company, avers that Defendant, BRT, Inc., is liable, jointly or severally liable, or liable over to Answering Defendant on any recovery obtained by Plaintiff. Date: June 10, 2008 Respectfully submitted, By: Patricia A. Fecile-~1Gloreland, Esquire Attorney for Defendant, Farm and Home Oil Company {PH2O9463.1 } 11 VERIFICATION I, Joan Gower, verify that I am authorized to make this Verification on behalf of Farm and Home Oil Company, a Defendant in this matter, and that the facts set forth in the foregoing Defendant, Farm and Home Oil Company's Answer with New Matter and New Matter Cross-claims to Plaintiff s Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. oan Gower Date: {PH232019.1 } CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Defendant, Farm and Home Oil Company's Answer with New Matter and New Matter Cross-claims to Plaintiff s Complaint was sent by first- class, U.S. mail, postage prepaid, to the parties listed below: Thomas S. Brumbaugh, Esquire Thomas, Thomas & Hafer LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17101 Counsel for Plaintiff Douglas B. Marcello, Esquire Marcello & Kivisto, LLC 1501 Commerce Avenue Carlisle, PA 17015 Counsel for Defendant, BRT, Inc. Constance A. Katein, Legal Assistant Date: June 10, 2008 {PH2O9463.1 } c"> ,~,, c» ~~ ~ '~ ~-r, C, ,~ ~ ,.+. ~~ ~ ~ J ' :~ C~ ~ .~ ` ' ` '~ ~3 .~ ~ .,,~ CUMBERLAND VALLEY SCHOOL DISTRICT Plaintiff v. BRT, INC. AND FARM AND HOME OIL COMPANY Defendants IN THE COURT OF COMMON PLEAS NO 07-5446 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED DEFENDANT BRT INC.'S ANSWER TO NEW MATTER CROSS-CLAIM OF DEFENDANT FARM AND HOME OIL COMPANY 65. Denied. As the averments of paragraphs 1-64 are directed to a party other than Answering Defendant, no responsive pleading is required. In the alternative, to the extent a responsive pleading is required, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e) and proof is demanded at time of trial. 66. Denied. The averments are denied pursuant to Pa.R.C.P. Rule 1029(e) and proof is demanded at time of trial. Answering Defendant incorporates its answer and new matter to Plaintiff's complaint as if set forth in full. 67. Denied. The averments of paragraph 67 state a conclusion of law to which no responsive pleading is required. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e) and proof is demanded at time of trial. 68. Denied. The averments of paragraph 68 state a conclusion of law to which no responsive pleading is required. In the alternative, the averments are denied pursuant to Pa.R.C.P. Rule 1029(e) and proof is demanded at time of trial. Any and all allegations of negligence and/or liability of Answering Defendant. are specifically denied. RESPECTFULLY SUBMITTED: Douglas B. ello (I.D. # 36510) Mary Klatt (. # 207664) Marcello & Kivisto, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 17015 O: (717)240-4686 F: (717)258-4686 ~' Jun, 2b. 2008 ?2:~~PN' No, 3707 P, 1 y VERIFICATION' ' ~ ~ /~?~ reb ~veci that the averments made in the 1, G ~' fir attached document ale true an correct to the best of m~ information, knowledge and belief based upon the information available. I understand that false statements herein axe made subjeot to the penalties of 18 I'a.C.S.A. Section 4904 relating to unsworn falsification to authorities, Bar; bated: ~ ~ ~~ ~ ~~O CUMBERLAND VALLEY SCHOOL DISTRICT Plaintiff v. BRT, INC. AND FARM AND HOME OIL COMPANY Defendants IN THE COURT OF COMMON PLEAS NO 07-5446 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I certify that the foregoing Answer to New Matter Cross-Claim in the within action was served upon the following by enclosing the same in an envelope addressed as follows, postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 27th day of June, 2008. Randall G. Gale, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17101 Counsel for Plaintiff Patricia A. Fecile-Moreland, Esq. Marks, O'Neill, O'Brien, & Courtney, P.C. Suite 1900 1800 John F. Kennedy Blvd. Philadelphia, PA 19103 Counsel for Defendant Farm and Home Oil Co. Mary Klatt ~?, ~~ C' ~",,,- ~ ~~ 1 j'. Gr7 . ,j `H ~ ~'..~Y w~ ~ ~ ...G. Randall G. Gale, Esquire Attomey I.D. # 26149 Corey J. Adamson, Esquire Attomey I.D. #204508 THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108-0999 717-255-7649 rgale@tthlaw.wm Attorneys for Plaintiff CUMBERLAND VALLEY SCHOOL DISTRICT, Plaintiff v BRT, INC.; FARM AND HOME OIL COMPANY, NO. 07-5446 CIVIL ACTION -LAW JURY TRIAL DEMANDED Defendants ~ ~~ NOTICE TO PLEAD TO: Defendant BRT, Inc. You are hereby notified to file a written response to the enclosed New Matter to Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. TO: Defendant Farm and Home Oil Company You are hereby notified to file a written response to the Cross Claim on Defendant BRT, Inc.'s Counterclaim within twenty (20) days from service or a judgment IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA may be entered against you. THOMAS, THOMAS & HAFER, LLP DATE: ~ ' t~' 615528.1 r ., ~ ~ ., By: R G. Gale, Esquire Attorney ID: PA 26149 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7648; fax: 717-237-7105 rgale(a,tthlaw.com Attorneys for Plaintiff Cumberland Valley School District 2 Randall G. Gale, Esquire Attomey I.D. # 26149 Corey J. Adamson, Esquire Attomey I.D. #204508 THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg PA 17108-0999 717-255-7649 rgale@tthlaw.com Attorneys for Plaintiff CUMBERLAND VALLEY SCHOOL DISTRICT, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v BRT, INC.; FARM AND HOME OIL COMPANY, NO. 07-5446 CIVIL ACTION -LAW Defendants JURY TRIAL DEMANDED PLAINTIFF CUMBERLAND VALLEY SCHOOL DISTRICT'S REPLY TO NEW MATTER OF DEFENDANT BRT, INC., ANSWER AND NEW MATTER TO COUNTERCLAIM OF DEFENDANT BRT, INC. ANDCROSS-CLAIM AGAINST DEFENDANT FARM AND HOME OIL COMPANY ON THE COUNTERCLAIM AND NOW, comes the Plaintiff Cumberland Valley School District and files this Reply to New Matter of Defendant BRT, Inc., Answer and New Matter to Counterclaim of Defendant BRT, Inc. and Cross-Claim against Defendant Farm and Home Oil Company on the Counterclaim. REPLY TO NEW MATTER 43. The Plaintiff incorporates by reference and reasserts the averments of its Complaint as if set forth at length herein. It is further specifically denied there were any legal or physical limitations preventing Defendant BRT, Inc. from doing a stick reading on the tank prior to its pumping oil into the school yard. 44. Denied. The averments of paragraph 44 are conclusions of law to which no response is required. To the extent a response may be deemed to be required, it is denied that any of Plaintiff s claims are barred by the statute of limitations. 45. Denied. The averments of paragraph 45 are conclusions of law to which no response is required. To the extent a response may be deemed to be required, it is denied that Plaintiff s claims are barred by waiver. 46. Denied. The averments of paragraph 46 are conclusions of law to which no response is required. To the extent a response may be deemed to be required, it is denied that Plaintiff's claims are barred by settlement or release. 47. Denied. The averments of paragraph 47 are conclusions of law to which no response is required. To the extent a response may be deemed to be required the averments are neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 48. Denied. The averments of paragraph 48 are conclusions of law to which no response is required. To the extent a response may be deemed to be required it is denied that Plaintiff s claims are barred by the impossibility of performance. 49. Denied. The averments of paragraph 49 are conclusions of law to which no response is required, To the extent a response may be deemed to be required it is denied that Plaintiff s claims are barred by illegality. 50. Denied. The averments of paragraph 50 are conclusions of law to which no response is required. To the extent a response may be deemed to be required. it is 2 denied that Plaintiff s claims are barred by justification. 51. Denied. The averments of paragraph 51 are conclusions of law to which no response is required. To the extent a response may be deemed to be required it is denied that Plaintiffls claims are barred by assumption of risk and it is denied Plaintiff assumed the risk. 52. Denied. The averments of paragraph 52 are conclusions of law to which no response is required. To the extent a response may be deemed to be required it is denied that Plaintiff s claims are barred by comparative or contributory negligence and it is denied that Plaintiff was causally negligent. 53. Admitted in part and denied in part. It is admitted that there had in the past been at least two times when the gauge was believed to have failed. It is denied that there was any knowledge on the part of Plaintiff that the gauge was not working correctly at the time of the delivery at issue. 54. Admitted in part and denied in part. It is admitted that there had in the past been at least two times when the gauge was believed to have failed. It is denied that there was any knowledge on the part of Plaintiff that the gauge was not working correctly at the time of the delivery at issue. 55. Admitted in part and denied in part. It is admitted that there had in the past been at least two times when the alarm system was believed to have failed. It is denied that there was any knowledge on the part of the Plaintiff that the alarm system was not working correctly at the time of the delivery at issue. 56. Admitted in part and denied in part. It is admitted that there had in the past been at least two times when the alarm system was believed to have failed. It is 3 denied that there was any knowledge on the part of the Plaintiff that the alarm system was not working correctly at the time of the delivery at issue. 57. Denied. It is denied that at the time of the delivery at issue Plaintiff believed that the oil tank in question contained 6,100 gallons of fuel oil. On the contrary, at the time the oil was ordered the person that requested the oil delivery believed that there was significantly less oil in the tank. 58. Denied. It is denied that the person requesting the oil believed the oil tank contained 6,100 gallons of fuel oil. It is further denied that Plaintiff failed or refused to inform the agent or employee of BRT, Inc. who delivered the fuel oil as to the amount of oil in the tank. On the contrary, the BRT, Inc. delivery personnel asked to see the gauge and then without checking the accuracy of the gauge proceeded to pump. 59. Admitted in part and denied in part. It is admitted that due to the past problems with the gauge and the alarm system the facilities director had put in place a procedure to stick this tank prior to a delivery. To the extent this paragraph avers that there was any knowledge on the part of the Plaintiff that the gauge and alarm system were not working correctly at the time of the delivery at issue the averments are denied. 60. Admitted in part and denied in part. It is admitted that due to the past problems with the gauge and alarm system the facilities director had put in place a procedure to stick the tank prior to a delivery. To the extent this paragraph avers that there was any knowledge on the part of the Plaintiff that the gauge and alarm system were not working correctly at the time of the delivery at issue the averments are denied. By way of further response, the oil delivery personnel from Defendant BRT, Inc. had an independent duty to verify the amount of oil in the tank prior to pumping and any 4 procedure within the school district does not in any way obviate the duty on the part of Defendant BRT, Inc. to prevent a spill of fuel oil due to overfill. 61. Admitted in part and denied in part. It is admitted that due to the past problems with the gauge and alarm system the facilities director had put in place a procedure to stick the tank prior to a delivery. It is admitted that Plaintiff did not stick the tank prior to this delivery. To the extent this paragraph avers that there was any knowledge on the part of the Plaintiff that the gauge and alarm system were not working correctly at the time of the delivery at issue the averments are denied. By way of further response, the oil delivery personnel from Defendant BRT, Inc. had an independent duty to verify the amount of oil in the tank prior to pumping and any procedure within the school district does not in any way obviate the duty on the part of Defendant BRT, Inc. to prevent a spill of fuel oil due to overfill. 62. Admitted in part and denied in part. It is admitted that the former facilities director for the school district prepared a report after the Defendant BRT, Inc. personnel spilled oil in the school yard in which he noted the information presented. To the extent that Defendant BRT, Inc. asserts that this information excuses it from its independent duty to verify the amount of oil in the tank prior to pumping the averment is denied. On the contrary, Defendant BRT, Inc. had a duty regardless of any school district procedures, to verify the amount of oil in the tank prior to pumping and to immediately take measures to stop the overflow so that the spill at issue would not have been in the amount or extent that it was. 63. Denied. There was no Exhibit A attached to the Answer, New Matter and Counterclaim of Defendant BRT, Inc. served on the Plaintiff. 64. Admitted in part and denied in part. It is admitted that on September 20, 2005 around mid-day a BRT, Inc. oil delivery truck came to Middlesex Elementary School. It is believed by the Plaintiff that there were two persons from BRT, Inc. The Bill of Lading contains the names of Billy Spence and Jeff Dawson under "driver." 65. Admitted in part and denied in part. It is admitted that the BRT personnel were at that location to deliver heating oil to Middlesex Elementary School. To the extent the averment asserts there was only one BRT person present the averment is denied as there were two persons. 66. Admitted. 67. Denied. The Plaintiff does not know with certainty what Defendant BRT, Inc. would consider to be spill protection or spill containment and therefore after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. By way of further response, there was a concrete pad under the tank. 68. Admitted in part and denied in part. It is admitted that there was not a visible gauge indicating level or volume of oil in the tank on the outside of the tank itself. It is denied there was no gauge for the tank. The gauge was located inside the school building rather than outside on the tank. 69. Admitted. 70. Admitted in part and denied in part. It is admitted that one of the BRT, Inc. personnel did speak with the custodian to inquire as to where the gauge was for the oil tank. Whether this was the driver is neither admitted nor denied in that after reasonable investigation the information known or readily obtainable is insufficient to 6 permit the Plaintiff to admit or deny and the averment is therefore deemed to be denied and proof thereof is demanded. 71. Admitted with the caveat that after reasonable inquiry Plaintiff does not know whether the BRT delivery person the custodian took to the boiler room was the driver. 72. Admitted. 73. Admitted with the caveat that after reasonable inquiry Plaintiff does not know if this BRT delivery person was the driver. 74. Denied. It is denied the custodian told the BRT, Inc. delivery person that the gauge on the wall indicated 1,046 gallons. On the contrary, the custodian simply showed the individual from Defendant BRT, Inc. where the gauge was located. 75. Admitted in part and denied in part. It is admitted that the tank is a 10,000 gallon tank. It is denied that the custodian told the person from Defendant BRT, Inc. that this was a 10,000 gallon tank. Whether or not the individual from Defendant BRT, Inc. that the custodian showed the gauge to was the driver is neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averment and it is therefore deemed to be denied and proof thereof is demanded 76. Denied. The averments of this paragraph are neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 77. Admitted in part and denied in part. It is admitted that Defendant BRT, 7 Inc. commenced the delivery. It is denied that the custodian made representations to the Defendant BRT, Inc. individual as to capacity of the tank or how many gallons the tank contained. On the contrary, he was asked by the person from BRT, Inc. to be shown the location of the gauge inside the school building and did so. Whether this person from BRT, Inc. was the driver is neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averment and it is therefore deemed to be denied and proof thereof is demanded. 78. Denied. It is denied that the custodian with whom the BRT delivery person spoke knew that the gauge did not work or that it could not be relied upon at the time of the delivery at issue. 79. Admitted in part and denied in part. It is denied that the custodian with whom the BRT, Inc. delivery person spoke knew that the gauge did not work or that it could not be relied on at the time of the delivery at issue. It is admitted that the custodian made no representations as to the gauge. 80. Admitted in part and denied in part. It is admitted that Plaintiff did not tell the custodian that at the time of the delivery at issue the gauge did not work or could not be relied on. The remainder of the averments are denied as Plaintiff had no knowledge at the time of this delivery that the gauge was broken or could not be relied upon at that time. The gauge had had earlier problems that Plaintiff thought had been remedied. 81. Denied. It is denied that Plaintiff knew at the time of the delivery that the gauge did not work or could not be relied upon. The gauge had earlier problems that Plaintiff thought had been remedied. 82. Denied. It is denied there were "indications of a possible spill." On the 8 contrary, there was definitely an oil spill. It is denied that the custodian told anyone from BRT, Inc. that there should have been capacity in the tank for his delivery. 83. Denied. It is denied there were "indications of a possible spill." On the contrary, there was definitely an oil spill. The remainder of the averments are neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 84. Denied. It is denied there were "indications of a possible spill." On the contrary, there was definitely an oil spill. The exact reading on the gauge after the spill is neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 85. Admitted. 86. Admitted. 87. Admitted in part and denied in part. It is admitted that Lee Brandt examined the reading on the gauge after arriving at the school subsequent to the oil spill. The remainder of the averments are neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 88. Admitted in part and denied in part. It is admitted that after the spill Lee Brandt believed that the electronic gauge mounted in the boiler room had failed. The remainder of the averments of this paragraph are neither admitted nor denied in that after 9 reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 89. Denied. the averments of this paragraph are neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. By way of further response, this individual would not have been authorized to make such a statement on behalf of Plaintiff nor would he have been qualified to render a legal opinion regarding fault. 90. Denied. The averments of this paragraph are neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. By way of further response, this individual would not have been authorized to make such a statement on behalf of Plaintiff nor would he have been qualified to render a legal opinion regarding liability. 91. Admitted. 92. Admitted. 93. Denied. It is denied that Plaintiff knew or should have known that the driver or those in his position would rely solely on the gauge and it is denied that it was reasonable for the driver or those in his position to do so. 94. Denied. The averments of this paragraph are neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and 10 proof thereof is demanded. By way of further response, the spill would not have occurred had the BRT delivery personnel taken a stick reading prior to pumping. 95. Denied. the averments of this paragraph are neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 96. Denied. The averments of this paragraph are neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 97. Denied. The averments of this paragraph are neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. By way of further response the Defendant BRT, Inc. delivery personnel should have been watching such that they would have immediately turned off the pumping mechanism at the first sign of spill such that the spill at issue would not have been in the amount of or to the extent that it was. 98. Denied. The averments of this paragraph are neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 99. Denied. The averments of this paragraph are neither admitted nor denied that after reasonable investigation the Plaintiff is without sufficient information to form a 11 belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 100. Denied. The averments of this paragraph are neither admitted nor denied that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 101. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent a response may be deemed to be required it is denied that any claims of Plaintiff are barred or reduced by the "gist of the action." 102. Denied. the averments of this paragraph are conclusions of law to which no response is required. To the extent a response may be deemed to be required, it is denied that any of the Plaintiff s claims are barred or reduced by the economic loss doctrine. WHEREFORE, the Plaintiff Cumberland Valley School District demands that judgment be entered in its favor and against the Defendant BRT, Inc. ANSWER TO COUNTERCLAIM 103. The Plaintiff incorporates by reference its responses to Defendant BRT, Inc.'s New Matter and incorporates by reference the averments in the Complaint filed against Defendant BRT, Inc. 104. Denied. The averments of this paragraph are neither admitted nor denied in that after reasonable investigation the Plaintiff is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and 12 proof thereof is demanded. 105. Denied. The averments of paragraph 105 are conclusions of law to which no response is required. To the extent a response may be deemed to be required the averments are denied. It is denied that the Plaintiff was careless, negligent, grossly negligent, or reckless and it is denied that Plaintiff caused the spill. WHEREFORE, the Plaintiff Cumberland Valley School District demands that judgment be entered in its favor and against the Defendant BRT, lnc. NEW MATTER TO COUNTERCLAIM 106 The Plaintiff Cumberland Valley School District incorporates by reference the previous paragraphs of this Reply to New Matter and Answer to Counterclaim as if set forth at length herein. 107. The Plaintiff Cumberland Valley School District incorporates by reference the averments of its Complaint in this case. 108. The Counterclaim of Defendant BRT, Inc. is barred by the statute of limitations. CROSS-CLAIM AGAINST DEFENDANT FARM AND HOME OIL COMPANY 109. The Plaintiff Cumberland Valley School District incorporates by reference without admission or adoption the averments of the Counterclaim of Defendant BRT, Inc. 110. The Plaintiff Cumberland Valley School District incorporates by reference the averments of its original Complaint against the Defendant Farm and Home Oil 13 Company. 111. Plaintiff avers that pursuant to an agreement between Plaintiff and Defendant Farm and Home Oil Company for the delivery of fuel to Plaintiff, Defendant Farm and Home Oil Company owes to Plaintiff indemnification, defense and to save Plaintiff harmless as specifically set forth in Paragraph 7 of the "Instructions to Bidders" and Paragraph 9 of the "Conditions of Bid." 112. The Defendant Farm and Home Oil Company agreed as successful bidder that it would be responsible for damage to property caused by Defendant Farm and Home Oil Company or their agents. 113. As the supplier, Defendant Farm and Home Oil Company Agreed to assume all liability for damages and indemnify and save harmless the participant Cumberland Valley School District against any and all loss from overflow of oil or damages arising from injury to property by reason of accidents or performance of the contract including costs, counsel fees and expenses. 114. If Defendant BRT, Inc. suffered injuries and damages as alleged in the Counterclaim any such injuries and damages were due solely to the negligence, carelessness, recklessness and/or other conduct of Defendant Farm and Home Oil Company and its agents or representatives. 115. Plaintiff Cumberland Valley School District avers that Defendant Farm and Home Oil Company is jointly and severally liable or liable over to Plaintiff Cumberland Valley School District on the Counterclaim of Defendant BRT, Inc., any liability of Plaintiff Cumberland Valley School District being specifically denied. 14 WHEREFORE, the Plaintiff Cumberland Valley School District demands judgment in its favor and against the Defendant Farm and Home Oil Company. THOMAS, THOMAS & HAFER, LLP B : G~ ~~~~J~ ~ Y R 1 G. Gale, Esquire Attorney ID: PA 26149 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 (717)25-7648; fax: 717-237-7105 ~/ ~! ~ rj r ale ,tthlaw.com DATE: ~ IS Attorneys for Plaintiff Cumberland Valley School District 6iss2s.~ 15 VERIFIGATION I, MICHAEL M. WILLIS, have read the foregoing Plaintiff Cumberland Valley School District's Reply to New Matter of Defendant BRT, lnc., Answer and New Matter to Counterclaim to Defendant BRT, lnc .and Cross-Claim Against Defendant Faun and Home Dil Company on the Counterclaim and hereby affirm that it is true and correct to the best of my personal knowledge or information and belief. This Verbcation and statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to sworn falsification to autfiorities; f verify that all the statements made in tha foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa.C.S.§4904. Date: s-~ ~ oc 580809.4 Support Services pool District CERTIFICATE OF SERVICE I, Randall G. Gale, Esquire, Thomas, Thomas & Hafer, do hereby certify that a copy of the foregoing document was served upon the following by enclosing a true and correct copy in envelopes addressed as follows, postage prepaid, and depositing same in the United States Mail at Harrisburg, ~t~ ~ Pennsylvania on the day of ~ , 2008. Douglas B. Marcello, Esquire MARCELLO & KIVISTO, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 17013 Patricia A. Fecile-Moreland, Esquire Marks, O'Neill, O'Brien & Courtney, P.C. Suite 1900 1800 JFK Boulevard Philadelphia, PA 19103 THOMAS, T OMAS & HAFER, LLP ., By all G. Gale, Esquire 16 t? ~ n %T~ ~ `~' ~~~ t'' > -t{ _ ..~ ~* ' t-~ - -'r. ~'~ --{~ 4 `~ '-t ~ ~ -. („i i Randall G. Gale, Esquire Attomey I.D. # 26149 Corey J. Adamson, Esquire Attorney I.D. #204508 THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg PA 17108-0999 717-255-7649 rgale a)tthlaw.com Attorneys for Plaintiff CUMBERLAND VALLEY SCHOOL DISTRICT, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v BRT, INC.; FARM AND HOME OIL COMPANY, Defendants NO. 07-5446 CIVIL ACTION -LAW JURY TRIAL DEMANDED REPLY OF PLAINTIFF TO NEW MATTER OF DEFENDANT FARM AND :HOME OIL COMPANY AND NOW, comes the Plaintiff Cumberland Valley School District and files this Reply to New Matter of Defendant Farm and Home Oil Company. 43-64. Denied. The averments of paragraph 43 through 64 of the Defendant Farm and Home Oil Company's New Matter are conclusions law to which no response is required. To the extent a response may be deemed to be required the averments are denied and proof thereof is demanded. WHEREFORE, the Plaintiff, Cumberland Valley School District demands that Judgment be entered in its favor and against the Defendant Farm and Home Oil Company. THOMAS, THOMAS & HAFER, LLP r` ~ ~ ~' By: R Ball G. Gale, Esquire Attorney ID: PA 26149 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7648; fax: 717-237-7105 rgale(a~tthlaw.com DATE: '~ Attorneys for Plaintiff Cumberland Valley School District 615528.1 2 CERTIFICATE OF SERVICE I, Randall G. Gale, Esquire, Thomas, Thomas & Hafer, do hereby certify that a copy of the foregoing document was served upon the following by enclosing a true and correct copy in envelopes addressed as follows, postage prepaid, and depositing same in the United States Mail at Harrisburg, Pennsylvania on the ~ da of 20 Y 08. Douglas B. Marcello, Esquire MARCELLO & KIVISTO, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 17013 Patricia A. Fecile-Moreland, Esquire Marks, O'Neill, O'Brien & Courtney, P.C. Suite 1900 1800 JFK Boulevard Philadelphia, PA 19103 THOMAS, T OMAS & HAFER, LLP ~~ ~ -~ BY l !/i7lX(~ andall G. Gale, Esquire 3 VERIFICATION I RANDALL G. GALE, ESQUIRE have read the foregoing Reply of Plaintiff to New Matter of Defendant Farm and Home Oil Company and hereby affirm that it is true and correct to the best of my personal knowledge or information and belief. This Verification and statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to sworn falsification to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa.C.S.§4904. i RAND G. GALE, ESQUIRE Dated: ~ ~ ~~~ ~~ 616405.1 C? ~~ ~~ C ~` .. ray ~ . etc, r~~ rr ~ ~ ~ , . ` Y-s ; €I3 N 1 c.,,~ ~, c--` t , - -~ ~ {:~ C... ~ C~ ~;? ~ :.~ ~ `~. CUMBERLAND VALLEY SCHOOL DISTRICT Plaintiff v. BRT, INC. AND FARM AND HOME OIL COMPANY Defendants IN THE COURT OF COMMON PLEAS NO 07-5446 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED DEFENDANT BRT INC.'S ANSWER TO PLAINTIFF'S NEW MATTER TO COUNTER-CLAIM 106. Answering Defendant incorporates by reference the paragraphs of its New Matter and Counterclaim as if set forth at length herein. 107. Answering Defendant incorporates by reference the paragraphs of its Answer, New Matter, and Counterclaim as if set forth at length herein. 108. Denied. The averments of paragraph 108 state a conclusion of law to which no responsive pleading is required. In the alternative, the averments of this paragraph are specifically denied and proof is demanded at time of trial. WHEREFORE, Defendant BRT, Inc. requests this Honorable Court enter judgment in the amount of its costs and expenses in the response to said spill in the amount of $2,344.00 plus costs and expenses as warranted by the applicable law. CROSS-CLAIM AGAINST DEFENDANT FARM AND HOME OIL COMPANY 109. Answering Defendant incorporates by reference the paragraphs of its Counterclaim as if set forth at length herein. .. 110. Answering Defendant incorporates by reference the paragraphs of its Answer and New Matter as if set forth at length herein. 111-115. The averments of Paragraphs 111-115 are directed to a party other than Answering Defendant; hence no responsive pleading is required. To the extent the allegations in paragraphs 111-115 are directed to Answering Defendant, they are denied pursuant to Pa.R.Civ.P. 1029(e); proof is demanded at the time of trial. WHEREFORE, Defendant BRT, Inc. requests this Honorable Court enter judgment in the amount of its costs and expenses in the response to said spill in the amount of $2,344.00 plus costs and expenses as warranted by the applicable law. Mary Klatt kI. . # 207664) Marcello & visto, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 17015 O: (717)240-4686 F: (717)258-4686 RESPECTFULLY SUBMITTED: ''Aug. 25. 2008 2:54PM CUMBERLAND 'V'ALLE'Y' SCHOOL DISTRICT Plaintiff v, BRT, INC. AND FARM AND HOME OIL COMPANY Defendants No, 5368 P, 1 IN THE COURT OF COMMON PLEAS NO 07-5446 CIVIL TERM CIVIL ACTIOI~T LAW JURY TRIAL DEMANDED 'VERIEYCATION I, ~1f.M1 ~ (.~ /'~ /~'~ereb veri that the averments made in the Y fY attached document are true d correct to the best of my information, knowledge and belief based upon the information available, I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Seetiari 4904 relating #o unswotn falsification to authorities. By Dated: ~~ ~~ ~~ CUMBERLAND VALLEY SCHOOL DISTRICT Plaintiff v. IN THE COURT OF COMMON PLEAS NO 07-5446 CIVIL TERM CIVIL ACTION-LAW BRT, INC. AND FARM AND HOME OIL COMPANY JURY TRIAL DEMANDED Defendants ; CERTIFICATE OF SERVICE I certify that the foregoing Answer to Plaintiff s New Matter to Counterclaim in the within action was served upon the following by enclosing the same in an envelope addressed as follows, postage prepaid and depositing same in the United States Mail, First Class Mail, in Carlisle, PA on the 26th day of August, 2008. Randall G. Gale, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17101 Counsel for Plaintiff Patricia A. Fecile-Moreland, Esq. Marks, O'Neill, O'Brien, & Courtney, P.C. Suite 1900 1800 John F. Kennedy Blvd. Philadelphia, PA 19103 Counsel for Defendant Farm and Home Oil Co. C t r`' e` ~ `= - ~, ., r ~ ' ~ ..,~... r. ~*~.~ 4 ~"'9 ~1 t ; ~" ~~~ .j '~ MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: PATRICIA A. FECILE-MORELAND, ESQUIRE IDENTIFICATION NO. 83798 1800 JOHN F. KENNEDY BLVD., 19TH FLOOR PHILADELPHIA, PA 19103 (215) 564-6688 Our File No. 779-78185 CUMBERLAND VALLEY SCHOOL DISTRICT vs. BRT, INC. and FARM AND HOME OIL COMPANY ATTORNEY FOR DEFENDANT, FARM AND HOME OIL COMPANY COURT OF COMMON PLEAS CUMBERLAND COUNTY N0.07-5446 JURY TRIAL DEMANDED (12 JURORS) DEFENDANT, FARM AND HOME OIL COMPANY'S ANSWER TO THE CROSS-CLAIMS OF PLAINTIFF/COUNTER CLAIMANT DEFENDANT. CUMBERLAND VALLEY SCHOOL DISTRICT 109. Answering Defendant incorporates by reference all previous Answers to New Matter Cross-claims as though the same were set forth herein at length. 110. Answering Defendant incorporates by reference all previous Answers to Plaintiff s Complaint with New Matter and New Matter Cross-claims as though the same were set forth herein at length. 111. The Agreement referred to in this averment is a document which speaks for itself. By way of further response, to the extent the remainder of the averment states conclusions of law, the same are denied. 112. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. {PH242984.1 } 113. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. 114. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. 115. Denied. The averments contained in this paragraph state conclusions of law to which no answer is required. WHEREFORE, Answering Defendant, Farm and Home Oil Company demands judgment in its favor and against all other parties, plus interest, costs and fees and other relief deemed appropriate by the Court. Respectfully submitted, MARKS, O'NEILL, O'BRIEN & C~>~tTN~j, P.C. By: I~atricia A.-Fecile-Moreland, Esquire Attorney for Defendant, Farm and Home Oil Company Date: September 5, 2008 {PH242984.1 } 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Defendant, Farm and Home Oil Company's Answer to the Cross-Claims of Plaintiff/Counter Claimant Defendant, Cumberland Valley School District was sent by first-class, U.S. mail, postage prepaid, to the parties listed below: Randall G. Gale, Esquire Thomas, Thomas & Hafer LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17101 Counsel for Plaintiff Douglas B. Marcello, Esquire Mazcello & Kivisto, LLC 1501 Commerce Avenue Cazlisle, PA 17015 Counsel for Defendant, BRT, Inc. ~.. . Constance A. Katein, Legal Assistant Date: September 5, 2008 {PH242984.1 } ' ~~ ~ ~ ~~ ~a ~° 4-> ~si ~...:J ~.F1 ~~ ~ ~~ ~vf r~ „ { .. ~~ ^r'1 t }±" .. .....w t_,1 ~J Randall G. Gale, Esquire Attomey I.D. # 26149 Corey J. Adamson, Esquire Attomey I.D. #204508 THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108-0999 717-255-7648 rgale@tthlaw.com Attorneys for Plaintiff CUMBERLAND VALLEY SCHOOL DISTRICT, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v BRT, INC.; FARM AND HOME OIL COMPANY, Defendants NO. 07-5446 CIVIL ACTION -LAW JURY TRIAL DEMANDED >PRAFICIPE T0'SUBSTI'TUTE VERIFICATION TO: PROTHONOTARY CUMBERLAND COUNTY Please substitute the Verification of Michael M. Willis for the Verification of Counsel filed on the Reply of Plaintiff to New Matter of Defendant Farm and Home Oil Company. THOMAS, T S & HAFER, LLP By: G. Gale, Esquire Attorney ID: PA 26149 305 North Front Street, 6`l' Floor P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7648; r ale(a,tthlaw.com Attorneys for Plaintiff Cumberland Valley School District CERTIFICATE OF SERVICE I, Randall G. Gale, Esquire, Thomas, Thomas & Hafer, do hereby certify that a copy of the foregoing document was served upon the following by enclosing a true and correct copy in envelopes addressed as follows, postage prepaid, and depositing same in the United States Mail at Harrisburg, Pennsylvania on the ~ day of , 2008. Douglas B. Marcello, Esquire MARCELLO & KIVISTO, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 17013 Patricia A. Fecile-Moreland, Esquire Marks, O'Neill, O'Brien & Courtney, P.C. Suite 1900 1800 JFK Boulevard Philadelphia, PA 19103 THOMAS, THOMAS ~ HAFER, LLP By ndall G. Gale, Esquire 2 VERIFICATION I, MICHAEL M. WILLIS, have read the foregoing Reply of Plaintiff to New Matter of Defendant Farm and Home Oil Company and hereby affirm that it is true and correct to the best of my personal knowledge or information and belief. This Verification and statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to sworn falsification to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa.C.S.§4904. Mich el M.1lllillis I Dire or of Business & upport Services Cum erland Valley School District Date: J ~ sk 143__ , aooS 560909.5 --;,_ r ~ °, _ ~ ~ ~ ~:~ :, a_, Randall G. Gale, Esquire Attorney I.D. # 26149 Corey J. Adamson, Esquire Attorney I.D. #204508 THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108-0999 717-255-7649 rgale@tthlaw.com Attorneys for Plaintiff CUMBERLAND VALLEY SCHOOL DISTRICT, Plaintiff v BRT, INC.; FARM AND HOME OIL COMPANY, 1 ,. ?1E al0 124 AM I? ? i= IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5446 CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants STATEMENT OF INTENTION TO PROCEED TO THE COURT: Plaintiff, Cumberland Valley School District, intends to proceed with the above- captioned matter. Respectfully submitted, Date: THOMAS, THOMAS & HAFER, LLP RaheWl G. Gale, Esquire Attorney I.D. No. 26149 305 North Front Street Harrisburg, PA 17108 (717) 255-7648 Attorneys for Plaintiff 1004975.1 CERTIFICATE OF SERVICE 1, Randall G. Gale, Esquire, of the law firm of Thomas, Thomas & Hafer, do hereby certify that a copy of the foregoing document was served upon the following by enclosing a true and correct copy in envelopes addressed as follows, postage prepaid, and depositing same in the United States Mail at Harrisburg, Pennsylvania on the 24th Day of October, 2011. Douglas B. Marcello, Esquire MARCELLO & KIVISTO, LLC 1200 Walnut Bottom Road Third Floor, Suite 331 Carlisle, PA 17013 Patricia A. Fecile-Moreland, Esquire Marks, O'Neill, O'Brien & Courtney, P.C. Suite 1900 1800 JFK Boulevard Philadelphia, PA 19103 THOMAS, THOMAS & HAFER, LLP By 1004975.1 da . Gale, Esquire 2 Cumberland Valley School District vs BRT,. Inc.; Farm and Home Oil Company To the Court: Case No. 07-5446 STATEMENT OF INTENTION TO PROCEED —;. c Plaintiff Cumberland ValleySD intends to proceed with the above captioned fnatter. Print Name Randall G. Gale, Esq Sign Name Date: 10/21 /14 Attorney for Plaintiff, Cumberland Valley School District IMPORTANT NOTE In the event that this is a second or subsequent filing of a Statement of Intention to Proceed, this matter will be referred to the President Judge for the purpose of conducting a status conference involving all counsel. The goal of the status conference will be to set the matter for trial or other final disposition within a time certain. Prior to the status conference, Counsel will be expected to submit to the court, in writing, a proposed schedule for the completion of discovery, the filing of dispositive motions and a report as to whether alternative dispute resolution has been used or discussed. CERTIFICATE OF SERVICE I, Randall G. Gale, Esquire, Thomas, Thomas & Hafer, do hereby certify that a copy of the foregoing Statement of Intention to Proceed was served upon the following by enclosing a true and correct copy in envelopes addressed as follows, postage prepaid, and depositing same in the United Sta es Mail at Harrisburg, Pennsylvania on the oct day of l 2014. Douglas B. Marcello, Esquire MARCELLO & KIVISTO, LLC 1501 Commerce Avenue Carlisle, PA 16915 Patricia A. Fecile-Moreland, Esquire Marks, O'Neill, O'Brien & Courtney, P.C. Suite 1900 1800 JFK Boulevard Philadelphia, PA 19103 THOMAS, THOMAS & HAFER, LLP By