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HomeMy WebLinkAbout07-5705David W. Francis, Esquire Attorney I.D. No. 53718 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. ??7, ;!?t PAL.... IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW LAMARCO CONTRACTING, INC. Defendant JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR YOU CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 656292.4 AVISO USTED HA SIDE DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 2 David W. Francis, Esquire Attorney I.D. No. 53718 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff V. LAMARCO CONTRACTING, INC Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW tra NO U7 ?? 0 5 CJv• +c JURY TRIAL DEMANDED COMPLAINT NOW COMES, Heirloom Cabinetry of Pennsylvania, Inc. by its attorneys, Rhoads & Sinon LLP, and hereby submits the within Complaint against LaMarco Contracting, Inc., and avers as follows: 1. Plaintiff Heirloom Cabinetry of Pennsylvania, Inc. ("Heirloom") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of RR 4 Box 390, Nelson Road, Mifflintown, Pennsylvania 17059. Heirloom's principal business is constructing and installing wood cabinetry as well as constructing wood furniture. 2. Defendant LaMarco Contracting, Inc. ("LaMarco" or "Defendant"), upon information and belief, is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania and has a registered address of 130 Hillymede Circle, Harrisburg, PA 17111. LaMarco is an HVAC contractor. 1 3. Custer Homes, Inc. ("Custer Homes") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of 2805 Old Post Road, Harrisburg, Pennsylvania 17110. Custer Homes' principal business is serving as a general contractor constructing residential homes. 4. Custer Design Group, Inc. ("Custer Design") is a Pennsylvania business corporation incorporated under the laws of the Commonwealth of Pennsylvania having an address of 2805 Old Post Road, Harrisburg, Pennsylvania 17110. Custer Design's principal business is serving as a general contractor constructing residential homes. (Custer Homes, Inc. and Custer Design Group, Inc. collectively referred to as "Custer") 5. Steven Neiman, owner of property located at 3 Springdale Way, Mechanicsburg, Cumberland County, Pennsylvania ("Neiman"), contracted with Custer, as General Contractor, for the construction of a residence on his property located at 3 Springdale Way ("Neiman Residence"). 6. Custer Design entered into a Supplemental Trade Contractor Agreement on or about October 2003 with Heirloom ("Heirloom Subcontract") for the construction and installation of cherry and pear wood cabinetry and paneling in the dining room, family room, office, master bedroom and master bathroom in the Neiman Residence ("Heirloom Cabinetry"). Heirloom also constructed several pieces of wood furniture for the Neiman Residence, including, but not limited to, an entertainment center, a bed, a desk, and a dining room suite ("Heirloom Furniture"). A true and correct copy of the Heirloom Subcontract is attached hereto as Exhibit "A" and incorporated herein by reference. 2 7. Custer Homes entered into Supplemental Trade Contractor Agreements (collectively the "LaMarco Subcontract") for installation of the HVAC system in the Neiman Residence. A true and correct copy of the LaMarco Subcontract is attached hereto as Exhibit "B" and incorporated herein by reference. 8. The Heirloom Subcontract and the LaMarco Subcontract ("Both Subcontracts") specifically provided: a. The each was responsible to the other (i.e. LaMarco responsible to Heirloom) for damages arising out the work; and b. That each would hold Custer as not responsible for damages incurred as a result of the other's conduct (i.e. that Heirloom could not look to Custer for its damages); and c. That each would look to the other to recover damages caused by the other (i.e. that Heirloom had to pursue its claim against LaMarco directly). These contractual obligations on both parties was set forth in Both Subcontracts as follows: Should Trade Contractor damage work of other contractors or Builder, Trade Contractor shall pay the cost of repairing such damage and hold Builder and owner harmless. Trade Contractor agrees that he will not hold Builder responsible for loss or damage or injury caused by another contractor and further agrees to look to said trade contractor for recovery from it of any such damage or injury. 9. Thus, under terms of Heirloom Subcontract, Heirloom was contractually obligated to pursue its claim directly against LaMarco. 10. Further, under the terms of the LaMarco Subcontract, LaMarco was contractually obligated to pay Heirloom's claim directly to Heirloom. 11. LaMarco installed an HVAC system, which included equipment addressing humidity levels, in the Neiman Residence on or around October 2003. 12. In accordance with the LaMarco Subcontract, LaMarco was to perform all work at the Neiman Residence in a good workmanlike manner. See LaMarco Subcontract, ¶ 1. 13. Thus, LaMarco owed a general duty to install the HVAC system in the Neiman Residence in a workmanlike manner and in accordance with a. Section M1411.3 of the International Residential Code(k) for One- And Two-Family Dwellings, 2003 Edition, and b. Section 307.2 of the 2003 International Mechanical Code, and C. American Society of Heating, Refrigerating, and Air-Conditioning Engineers ("ASHRAE") Standard 55; and d. 2005 ASHRAE Handbook-Fundamentals; and C. ASHRAE Standard 62.1 Ventilation for Acceptable Indoor Air Quality; and f. ASHRAE Standard 62.2 Ventilation and Acceptable Indoor Air Quality in Low-Rise Residential Buildings 4 14. These documents required LaMarco to install its work and operate its equipment so that the humidity in the home was within requirements set forth therein. 15. LaMarco also had a duty to ensure that its work did not damage work performed by Custer or Custer's other subcontractors, such as Heirloom. 16. LaMarco failed to install and operate the equipment so that the humidity levels remained within these levels. In fact, Restorations Unlimited, the Custer Subcontractor who installed the hardwood-flooring in the house, measured the moisture and determined that it was three to four times the normal range. 17. As a result of LaMarco's failure to install and operate the equipment properly, Heirloom's work was damaged and had to be replaced at an additional cost to Heirloom. This damage included: a. Damage to the wooden cabinetry installed in the family room; and b. Damage to the wooden cabinetry in the master bedroom; and c. Damage to the cabinetry in the master bathroom; and d. Damage to the dining room table; and C. Damage to the office desktop. 18. As a result of this damage, Heirloom incurred damages in the amount of $34,558.00. 5 19. LaMarco's improper installation and/or operation of the equipment was a material breach of its contract with Custer. 20. Despite demand, LaMarco has failed to pay Heirloom for the these damages. 21. Following the problems encountered because of LaMarco's breaches as described herein, the entire heating and air conditioning system installed by LaMarco was reengineered and rebuilt by a new HVAC subcontractor. 22. Pursuant to the terms of Both Subcontracts as discussed above, Heirloom is looking directly to LaMarco to recover its damages. 23. To date, LaMarco has failed and refused to pay Heirloom for Heirloom's damages it incurred in replacing the Heirloom Cabinetry and Heirloom Furniture. COUNT I - BREACH OF CONTRACT Assignment of Claim 24. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 25. The provisions of Both Subcontracts as discussed above amounted to an assignment of Custer's claim for breach of contract to Heirloom. 26. LaMarco's failures as discussed above constitute a breach of the LaMarco Subcontract. 27. Pursuant to the terms of Both Subcontracts, LaMarco is contractually obligated to pay Heirloom directly for the damages that Heirloom incurred. 6 WHEREFORE, Plaintiff, Heirloom Cabinetry of Pennsylvania, Inc. respectfully requests this Court enter judgment in favor of Plaintiff and against Defendant LaMarco Contracting, Inc., in the amount of $34,558.00, together with costs, fees and attorney's fees as permitted by law. COUNT II - INTENDED THIRD PARTY BENEFICIARY 28. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 29. In the alternative, the provisions of Both Subcontracts discussed above provided that Heirloom is an intended third party beneficiary of the LaMarco Subcontract. 30. As an intended third party beneficiary, Heirloom is permitted to pursue this claim directly against LaMarco for the damages suffered by Heirloom on account of LaMarco's breaches discussed above. 31. LaMarco has breached its duty to Heirloom by failing to pay Heirloom for the damages that Heirloom incurred because of LaMarco. WHEREFORE, Plaintiff, Heirloom Cabinetry of Pennsylvania, Inc. respectfully requests this Court enter judgment in favor of Plaintiff and against Defendant LaMarco Contracting, Inc., in the amount of $34,558.00 together with costs, fees and attorneys fees as permitted by law. 7 COUNT III - BREACH OF CONTRACT Use Claim Pursuant To Pa.R.C.P. 2002 32. The foregoing paragraphs are incorporated herein by reference as if set forth here at length. 33. As explained herein, Heirloom is the real party in interest in this action. 34. Heirloom is permitted to assert this claim under Pa.R.C.P. 2002. 35. As discussed herein, specific provisions of the LaMarco Subcontract were entered into for the benefit of Heirloom. 36. LaMarco therefore is directly liable to Heirloom for its breach of the LaMarco Subcontract. 37. LaMarco is liable to Heirloom for the damages to the Heirloom incurred. 8 WHEREFORE, Plaintiff, Heirloom Cabinetry of Pennsylvania, Inc. respectfully requests this Court enter judgment in favor of Plaintiff and against Defendant LaMarco Contracting, Inc., in the amount of $34,558.00, together with costs, fees and attorneys fees as permitted by law. Respectfully submitted, RHOADS & SINON LLP DATED: September-li1, 2007 By: David . Fra s, E quire Atto ey I.D. 3718 Jennifer Zimmerman, Esquire PA I.D. No. 89459 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 9 Exhibit A 581717.1 13/13/2G121 ,' '_u;5b Ili?4 jA'b'..`i UJtz, ith; tt1?-:,Ju1- r- r_ U4 Custer Design Group, Inc. Stir-rLEMMENTAL TL,tAP C(-;NTRACT0R ,gc*;trT-.V7,N7 Trade Consmezor must provide a cxanx 6rrtrfuat.r of lmui vme, ??asnzs?g, Custet.Desw, Cifolig, l.C2c., as 68 Ca t'1j6CC7tJ Holder, 7-Ur Cerl??iCr1t?* r1r r Ve Oi,! d°f?, °nr xn re! rte ?Tftr1 ?C7?'f)lEH? '411, T. rvnice x mz, t be i?taad ?b Custer Dee, Liso Inr:., 60. Old Pn. t Road S mire 00. rya ?z+rk P./d 17110. The parties to this Construction A&:ccmcnt ue -Cwtej; Desi??Qm=, Tne., "Builder," and ???/.-t 2 ERR/NET Y /SF? , "Trace Contractor." ..c7VCs. This Agrcrmc-a- s6,11 Bova-m. 4 labor pex£ozzaied aid ma:eriai furnished by Tladc C:on,-racror for, Bt6ldex until either party revokes it by d.CLi acng.written nonce of such rcvocarion to the other party. If either piny revokes this agxec:mcnt, is isi>z1i be nL:ll and -oid for all contra=s entczed into t4erea:F6= Tr•adc C?oa?lcr.Ut; ??ee: To petforr_z all work ix: a cvorkmanw= manner, and To d.e'ivex materials which = azw and irL sLccotd=cc vrith the plant; and specifications delivered to Trade. Consen=t=s, Upon recoikng notice frorn Etsiloer that l'ra de Contractor has performcd iafetio; i?prgps r, or unsound labor, or 3;liQezed Matesials at amin=e midi which is ap,eeiiied, :Crsde Contractor ??ill, witll+si t-erarj-fosr (24) hours, proceed to remove sucii roods car materials and mrikc good all other work ,.)z materials damaged thereby. Tr.-.de Contractor sh n not subcoatmct any purr of tdc , ork I.&itlaout: nc,& P riot written consent of BvLder, and such consent slink not zeleaae Trade Contractor from =7 responsibilit? at liability ix: connmctiott critb. rbe subconrtrs et 2. It is mutually understood and agreed betwcen B- lder aad Trade Contracto. tba; Trade Cont-a.cr;or is an. mdependent contractor; that s.t ao tune "c alit' O F Txadc Coatractor's employees in the crsir}ioy of Buildet, a?or. io Builder xcapcnsiblc to any of Trace Coa=actcr's employ==s for th.c pay==t of rheit wages: rhat Tradc Contractor Alone is =sponsiblc forLc_ompli=ce with rX ap.-lica.blc statutts, ordinances, azd Ingulation'l carsGc=ing W5 Gmployrces S4cia1 Se-C=y, War?_rnan`s Crimp ensauon, and all 12fe3,5- conditioca and record kccp'g xeciuj.x mcnts under the 4ccapataon!il, Saferv and Hezith Act of 1970 and amcndmcntr ehcxetej, State and Federal t;taation. nad liccztai; g. Trade Co=rtor a.b.all jnaintain, at h.ia own cxp=se, suet Msurarice a 1 will prorcct him from wot)v.ncn's ccmpcnsstivn acts and ?cta o*her. claims and =amazes for persona: injury„ Including de:,* in the mir..itttutn amounT of 500,x00.00, ahicis =y arise 1;rom opcratawls itrdcr zh:a cc>ntsaci-. whe:.lrs such opcratioz:s be br the Tra.dc Contractor JI by any nthcr ,lade contrmc:ors oz his n ploycr. by qal one directly or in irectl.y cmoky-7rd b_ Farhat rf ri,Cxy. Tsadc n?rartot ucxeby ailzccs to ir,dettutify and hold ha.=1c" Builder frow any c? i=s, -'qd +;0? Td W8T T : 0 T SOO? 60 ' daS Z60z9Zb2_T L : 'ON SNOHd A L3N I SUO W007'? 13H : 4JOd d v;',.b. respect to the matters oudiucd in the parx6-r2Ph. e? ccpq ofT.rnde Contractor's CextLlicate o- Insurance mawt be approved art -bong by Custer Design Grog, Inc. at I=A three (3) davs pxioz to commencement of wot+i-, by Trade Contracto7. 3. Tradc Contractor zgrcci to pay for 211 MvitcxigL and aII .labor supplied by Tradc Con=ctot for tnc job when tiuc and to hold Builder and the owner har:rAes< rrom any liens =zing out of labor, materials, or subcontracts f=rdAhcd by Trade Contractor. Buildcx shall have the tight to =cquirc Tradc C_oa.tmr-tor ro p=cride rclt icz by 211 persons supplying labor, naa=L-dc, or cservk" to Tmde Contractor for the job herein dcscnbed and to withhold final. pay mm.t until such releases are supplied. Trade Contractor acknowledges that it is an indeper,dcT%t contractor and agrees to pay all contributions required by law Qr co.ut:=t which if unpaid could be an encumbrance upon the real prkT t 7 vvktcze th-e woxl,, s perfazmed. 4. Trade C ont;,zctot gees to permit other Trade Cannzcrazs teasonable opportunity fnz srozago of materials as3d execution of their,Kv'ork anc( shall ptopezly coordinate its work with theirs, If arty part Qf the work w be performed by Trade Contractor depends, for jarnpa-r executa.oo, or. the work of other trv.de contractors or BuiWee or the owamr, Tr„rde Contractor Shall immediately report coutlicta, d6 cam or otnaesiorls gnat rmadcr such outer vcrk untimely or unsuitiblc for execution of its work. Ftoceeding with its work vithout such rzpatt of dcfecw is =d acceptance by Tradc Contractor of The Work of ozb= that p:ccedeR., or. is pe.r.Eortxved si.zuWMn,eously Tvith, irs work, Should Tradc Contractor damage w'otk of other trade contractors or Builder, Trade Contractor shall pay the coot of :cp?,,L=g such dz=p; and hold Builder and owner harmless, Trade Contractor agrees that be will not hold Bwi.dct responsible fin loss or damage or injury caased by another trade contzactot and huthcr agrccp to look to said trade contractor fzr the recovery from it of any such damage or injury. TM4 z Contractor Shia procure and pay all oecemary permits required for pe, zormaace by Tradc Contractor -aa cx this 4,reemcnt which arc obtainabit by Trade Contractor and will protect unfinished work and all tnnate.tiala far Trade cotytt&ztc,e3 uzc, or incidental thcrcto, agaimt c:vc.rtr kind aTdamagc, uicluding d:.magx: by the elements, except dasnm.l,e by fire„ %3 r.til completion of the building. 6. Tradc Contractor ages to place debris in Builder's durapster, unless instructed otharmisc, rubbish and arastc materials tzeated by its operati,ozi as The work progresses, in order tQ stain-min a. clcazt, safo condition arid, upon completion of im Work, to sctno'te alt tools, ecLtigmcnt, materials and wa3 te..U laddcxe are to be lawcred and/or safely stored at the cnd of each day. Any rubbish or waste materials riot clean ud up and properly disposed of by Trade Con==x will result in a backcharge. Trade Contractor hrreby uncont itionaily guarxztees All his work, labor. and rziatrrinls to Bua der. and the own= -;x purchaser fox the pezic`d Of'Btlilder`s wa=zty to the ouwncr or p•:tchascr. revised 4.'03 d WdZT :0T S00Z 60 'day =60z92bLTZ ON E3NOHd ,lc?lENI3d0 W00721IEH Wf_lcld ?TJI??/LVVJ yi.!•JV ?/.tt..rlvt i ??.?. ?• -•.--. Bolder agrees to aupercisc the work =4 coordinate tho work of ocher suppliers and trade ccmtmctor; to c,rsablc'Trade Contractor to pc:rfc=n its work timely and efficiently, aia(I'Dwilder agrees that it will make •tbe pmyrttents required hereunder prompt,Ey wbtzt due. 9. Builder ag:ees to pay promptly Trade Contractor in his perfoanaacc of his woxk sad na later than 30 days within aubmisai;on. of nay, invoice, cooditiotted upon verification by Builder that the work had been tatisfactc,rily, performed. If pv7ment is not received neithin dzis period and Trade Corurac=x dais trot receive notification ju3ii ying the delay in payment:, Trade Contract'ot may tesmina-to this Agreeitcnt upon sc`vcn 7) ciay, writ= notice of him intent to do 5o. Tf Trade Contractor dots ,,o terminate following said notice, he shall be eutided to receive the reasonable 7a1uc of sill rnztcrials and labor incorporated in de job to the time of temvnation and the profit Trade Contractor wo:dd normally expect to have been made had the =ntract been fully and properly pcrfor=CC1, 10. If the Trade Contractor shall become bankrupt, m.1ke assignment for the bcntfn of creditors, or oth=xwis0 become unable to Qi=y our the work or if the Trade Conractor, without proper cause, removes £rotn the work for a period in excess of forty-eight (48) houm, then the Builder many, by notice in writing or verbal to the Track Contractor, tcLZauzare risks Aezzte;oti£;?cdozz zs riot taken to cute said default within twenty-four (24) hours after Builder's communication of such notate. If Trade Contractors shat in au4 manse= unduly delay or otherwise acglect: to Enish his responsibilities, without: boua fide cause, witkun tine ti=c 1lcrciabcforc provided, or otherwise breach any pzovision of this Agrersnsnt; Builder =y, b-, wtirtet% or verbal notice as hetainbefore provided, require the Trade Conrs,¢ctor ro p:=meci d-ith the work within twenty-fotu (24) ho= after conveyance oi' such. notice or correct nay such breach of this trip- -rent. widii twenty-four (24) hoax period and upon failure to do so, the Builder,%LgZ then. bgve the zigbt; tt7 te=ninpte this Agreement and to employ any oth r Trade Contractor w continue and complete the said w ork according to said pleas and specificadons, or aziy alterations or additions as herei,nbefam provided, aztd shall 2190 leave the fight to :Iurhatixc suc.b, replacement trade contractor to use any materlaler cu pscOporty of the Trade Contractor upon the ground. If the expense to complete the cootw't, in addition to any payments made of the Trade Contractor hereur?dex, oball exceed the o6giszal subcotntsact price plus cosrs for :Lny additional work, Trade Contmcto:r shall be liable to the Builder for, such eeccss sorts. 11. In the event Tradc Contractor diacovcts any iu,;onsistcncies or c=LS in bis work with the Builder or other trade contractors is the plans and apcclfirarion3, h'. 51aall, before perfor=lAg said work, promptly brims such csatteca to the attention of the Builder who sb.4 risers gr7e Trade Cont=ctor,trrittmn instructions or directions zzlativc to said i•ticonsistency of error. No eialms for additional compensation will be considexod and T=da Contractor is 41. be catitled to no such additional tsutns, unless 11c shad have, if ae all posaibic, brought :he inconsistency or arror to the Builder's attention prior to perfoming aztp work thereon. 17. This Agrecnacnr and every conversant and prorision herein shall bind, apply :o, and n.1n in favor of the pt.re.et, their successors it interest 2,11d their legal rcprc5antztives. reu,,aO, :xM3 --d LJdcT :OT SBOc 60 'daS Z60zM7Ll z 'ON 3NOHd Aai3NI3d0 W007c1I0H : WO?2 13. In construing this Agre=euz, the: Build= -&Ud Txade Caat>rze;or Way be mote: thAr. one person; that if the context so rcquires, the singular pronoun shalt he mken to mean and includm the pitu;sl, the marcWine, t1:e fcrnirjir c, and the acute;.; and that geacxall; all gtamtnadeat changes elaall be made, asFUmtd, a>yd xtnplird to rnakc the provisions hereof apply equally to corporauoas and to :Ludivi.duals. Trsdc C antracrot's AddrMSEc Z7VIT RR y QDX ???? ?y ?.seN j22P1-G11r7a wN, Yow 7a?? Business Phonc(`V-1) 6( Bog/ T=Lde Con=CWr's redct4 TO t#, L-iwrporatcd? Eyca ?nQ IRGDOm BlN ooc W DrC, Printed Tsadc Cozttacinr Company Name THEppp ,C ?- VVW&A.66,e, Ninted Name of Trad/c C ontcacwx AcccPted anti ,approved 7 SiPatsztc ofT=de Co 'motor last Custer Design Group, Inc. Sign.at re of Builder Builder's Addr=;, 2805 V2 Post ]Znad, Suite 290 74.ux:sburg, PA 17110 Busincis Phone: ("117) 2.i2-602 7 -cctsea 4!03 bd WdS T : 0 T SOW 60 ' daS 26029£t7L W- : 'ON SNOHd .1 J113N I aHD W001b I EH : WOd Exhibit B LANVV<-3J HLA 11NG Y, AC PACE 04 CJ_ISTER HD1ES It-K: PAGE F,^ cuss- €R HOMES, INC. SUTPLEMENIAL SUSCONIUCT AGREEMENT The parties to this Construction Agreement are Custer Homes, Inc., 'Builder," and ,4a ,r F6 ?'?t?acTi 1 vc?. _ , ?Subcontractor." This Agreamerrt shall govern all labor performed and material furnished by Subcontractor for Dkti dm- until tither party revokes it by delivpmng written notice of such revocation to the other parry If either party revokes this agreement, it shall be null and void for all contracts entered into thereafter. Subcontractor agees' To perform all work in a workmanl&e Manner; and To deliver materials which are new and in accordance with the plans and specifications delivered to Subcontractor. Upon receiving notice from Builder that Subcontractor has performed inferior, improper, or unsound labor or delivered materials at variance with which is specifi4 Subcontractor will, within twenty- four (24) boors, proceed to remove such work or materials and make good all other work or materials damaged thereby. Subcontractor shall not subcontract arty part of the work without the prior written consent of Budder, and such consent shall not release Subcontractor from any responsibility or liability in connection with the subcontract- Z. It is mutually understood and agreed bct"= Builder ez?d Subcontractor that Subcontractor is an independent contractor; that at uo tune are any of Subcontractor's employees in the employ of Builder, nor is Builder responsible to any of Subcontractor's employees for the payment of their wage ; the Subcontractor alone is responsible for compliance with all applicable statutes, ordinances, and regulations concerning his employee's Social Security, Workman's Compensation, and all safety conditions and record keeping roquirements under the Occupational, Saftty and Hc41th Act of 1970 and amendmems thereto, State and Federal taxation, and licensing. Subcomractor shall maintain, at his own expense, such insurance as will protect bim from workmen's compensation acts and from other claims and damages for personal injury, including death, in the minimum amount of $500,000.00, which may arise from operations under this contract, whether such operationi be by the Subcontractor or by any other subcontrwors or his stupioyer by anyone direedy or indirectly employed by tither of them Subcontractor hereby ogees to indemnify and hold harmless Builder from any dollars with respect to the miners outlined in the paragraph. A copy of Subcontractor's Certificate of Iusursttce must be approved in writing by Custer Homes, Inc ar least tbrvc (3) days prior to oommv=wmtent of work by Subcontractor e,.05/c?+ (1(ba(n4t( LAIAPCO HEATING & AC i` CUSTER HOMES INC t' 3. Subcvtitractor agrees to pay for all materials end ell labor supplied by Subcontractor for the job *ben due and to bold Budder and the owner haradoss from any Gees arising out of labor, materials, or subcontmats ftunished by Subcontractor. Builder shall have the right to require Subcontractor to provide releases by all persons supplying labor, materials, or services to Subcontractor for the job herein described and to wtthhold final payme% until such releases are supplied. Subcontractor acknowledges that it is an independent oontractor and agrees to pay all contributions required by law or contract which if unpaid could be an encumbrance upon the real property where the work is perfbrmed. 4, Subcontractor agrees to permit other Subcontractors reasonable opportanity for storage of materials and execution of their work ettd shall properly coordinate its work with theirs. If any part ofthe work to be performed by Subcontractor depends, for proper execution, on the work of other subcontractors or Builder or the owner, Subcontractor shall itanodiately report con8iets, defects or omissions that render such other work untimety or.unsuittable for execution of its work. Proceeding with its work without such. report of defects is and aeaeptm2cc by Subcontractor of the work of others that precedes, or 13 performed si nulta:rcously with, its work. Should Subconnetor damage work of other subcontractors or Budder, Subcontractor shall pay the cost of repairing such damage and hold Builder and owner harmless. Subcontractor agrees that he will not hold Builder responsible for loss or damage or injury caused by ano&er subcontractor and further agrees to look to Said subcontractor for the recovery from it of any such damage or injury. Subcoatrac?or shall procure and pay all nemssary permits requirod for performance by Subeontractor under this agreement which are obtainsWe by Subcontractor and will protect unftnisbod work and all materials for Suboautractor's use, or incidental thereto, againsi every mind of damage, including damage by the elements, except damage by Eta, until completion of the building. 6. Subcontractor agrees to remove front the site, unless instructed otherwise, rubbish artd waste materials created by its operation as the work progresses, to order to maintain a clean,. safe condition and, upon completion of its work, to remove all tools, equipment, materials and waste. All ladders art to be lowered anWor safely stored at the cad of each day. Any rubbish or waste materials not cleaned up and properly disposed of by Subcontractor wdl result in a backcharge. Subcontractor hereby a wm4itiom ly guarantees ail his work labor and materials to Builder and the owner or purchaser for the period of Builder's warranty to the owner or purchaser. PAGE 03 PAGE r73 0 E2/92/200?1 79 ,! 7 W129 CUSTER HOMES INi . 8. Builder agrees to supervise the work and coordinate the work of other suppliers and subcontractors to enable Subcontractor to perform its work timely and efficiently, and Budder agrees that it will make the payments required hereunder promptly when due. 9 Builder agrees to pay promptly Subcontractor in his performance of his work and no later than 30 days within submission, of any invoice, conditioned upon verification by Builder that the work has been satisfactorily performed. If payment is not received within this period and Subcontractor does not receive notification justifying the delay in payment, Subcontractor may terminate this Agreement upon seven (7) days written notice ofbis Went to do so. If Subcontractor does so terminate fallovAng said notice, he shall be entitled to receive tho reasonable value of all materials and labor incorporated in the job to the time of terming on and the profit Subcontractor would normally expect to have beta made hed the contract bees fnnlly and property performed_ 14. If the Subcouvaator shall become barkxUK make assigartent for the benefit of creditors, or otherwise become unable to cant' out the work or if the Subcontractor, without proper causes, removes from the work for a period in excess of forty-right (48) hours, then the Duskier may, by notice in writing or verbal to the Subcontractor, terminate this Agreement if action is not taken to curd said default within twenty-four (24) boars after Builder's communication of such notice. If Subcontractors shall in aay manaesr unduly delay or otheswi?sc neglect to finish his responsibititiek vHthout bona fide cause, within tho time hereinbefore provided, or otherwise breach any provision of this Agreement, Builder may, by smitten or verbal notice as beeeinbefore provided, require the Subcontractor to proceed with the work withic twenty-four (24) hours after corNes ce of such notice or correct any such breach of this Agreement within twenty-four (24) bour period and upon failure to do so, tbo Budder shall then have the right to terminate this Agreewnt and to employ any other Sub-ontractor to continue aiod complete the said work according to said plans and Specifications, or any alterations.or additions as haxiaWbre provided, and aban also have the right to authorize such replacement subcontractor to use any materials or properly of the Subcontractor upon the ground. If the expense to complete the contract, it addition to any payments made of the Subcontractor hereunder, shall exceed the original subcontract price plus costs for any additional work, Subcontractor shall be liable to the Builder for such excess sums. 11. In the west Subcontractor discovers any inconsistencies or errors in his work with the Builder or other subcontractors is the plans and specifications, he shall, before performing said work, promptly bring such matters to the attention of the Builder who shall ales give Subcontractor writtegn, instructions or directions relative to said inconsistency or error. No daises for additional compa=tion will be considered and Subcontractor shall be entitled to no such additional sums, unless be shall PAGE 04 0 -- -' .s+•ra?w 1 tiri iii w rw. rr-K?c !71 02 32i 2009 13: 2 q Ct15TER HOh£S INC PAGE ® have, if at all possible, brought the inconsistency or error to the B-,ulder's attention prior to performing any work thereon. 121. This Agreement and every convenant and provision herein shall bind, apply to, and run in favor of the parties, their suecessors in interest and their legal representatives. 13. In construing this Agreement, the Builder and Subcontractor msy be more than one person; that if the context so requires, the singular prom shall be taken to mean and include the phu-al, the mascufine, the feminine, snd the neuter, and that generally all grammatical changes shall be made, assumed, and implied to make the provisions hereof apply equally to corporations and to individuals, Subcontractor Subcontractor's Federal ID Subcontractor's Adcltess: _ '?// y oo?v ?_ / 3d f/.111//Y! E QG Incorporated? ;Ayes Ono Business Phonc: Emergency Phone; S?? :Z,5?6 9/ 7oD/ Accepted and approved Z ZOa Custer Ho.tnes, inc. -1-----Hnildcr Builder's Address: 1309 Laurel Point Circle Harrisburg, PA 17110 Buainess Phone: (717) 232-6027 Custer Homes, Inc. 0 SUPPLEMENTAL TRADE CONTRACTOR AGREEMENT Trade Contractor mustprnvide a current Certificate of Insurance, naming, Custer Homes, Inc., as the Certificate Holder. This Certificate must be on file prior to release offirstpgment. All Invoices must be issued to Custer Homes, Inc., 2805 Old Post Road Suite 200, Harrisbur ,& PA 17110. The parties to this Construction Agreement are Custer Homes, Inc., "Builder," and LaMarco Heating and Cooling , "Trade Contractor." This Agreement shall govern all labor performed and material famished by Trade Contractor for Builder until either party revokes it by delivering written notice of such revocation to the other party. If either party revokes this agreement, it shall be null and void for all contracts entered into thereafter. Trade Contractor agrees: To perform all work in a workmanlike manner; and To deliver materials which are new and in accordance with the plans and ® specifications delivered to Trade Contractor. Upon receiving notice from Builder that Trade Contractor has performed inferior, improper, or unsound labor or delivered materials at variance with which is specified, Trade Contractor will, within twenty-four (24) hours, proceed to remove such work or materials and make good all other work or materials damaged thereby. Trade Contractor shall not subcontract any part of the work without the prior written consent of Builder, and such consent shall not release Trade Contractor from any responsibility or liability in connection with the subcontract 2. It is mutually understood and agreed between Builder and Trade Contractor that Trade Contractor is an independent contractor; that at no time are any of Trade Contractor's employees in the employ of Builder, nor is Builder responsible to any of Trade Contractor's employees for the payment of their wages; that Trade Contractor alone is responsible for compliance with all applicable statutes, ordinances, and regulations concerning his employee's Social Security, Workman's Compensation, and all safety conditions and record keeping requirements under the Occupational, Safety and Health Act of 1970 and amendments thereto, State and Federal taxation, and licensing. Trade Contractor shall maintain, at his own expense, such insurance as will protect him from workmen's compensation acts and from other claims and damages for personal injury, including death, in the minimum amount of $500,000.00, which may arise from operations under this contract, whether such operations be by the Trade Contractor or by any other trade contractors or his employer by anyone directly or indirectly employed by either of them. Trade Contractor hereby agrees to indemnify and hold harmless Builder from any claims with respect to the matters outlined in the paragraph. A copy of Trade Contractor's revised 4/03 Certificate of Insurance must be approved in writing by Custer Homes, Inc. at least three (3) days prior to commencement of work by Trade Contractor. Trade Contractor agrees to pay for all materials and all labor supplied by Trade Contractor for the job when due and to hold Builder and the owner harmless from any liens arising out of labor, materials, or subcontracts furnished by Trade Contractor. Builder shall have the right to require Trade Contractor to provide releases by all persons supplying labor, materials, or services to Trade Contractor for the job herein described and to withhold final payment until such releases are supplied. Trade Contractor acknowledges that it is an independent contractor and agrees to pay all contributions required by law or contract which if unpaid could be an encumbrance upon the real property where the work is performed. 4. Trade Contractor agrees to permit other Trade Contractors reasonable opportunity for storage of materials and execution of their work and shall properly coordinate its work with theirs. If any part of the work to be performed by Trade Contractor depends, for proper execution, on the work of other trade contractors or Builder or the owner, Trade Contractor shall immediately report conflicts, defects or omissions that render such other work untimely or unsuitable for execution of its work. Proceeding with its work without such report of defects is and acceptance by Trade Contractor of the work of others that precedes, or is performed simultaneously with, its work. Should Trade Contractor damage work of other trade contractors or Builder, Trade Contractor shall pay the cost of repairing such damage and hold Builder and owner harmless. Trade Contractor agrees that he will not hold Builder responsible for loss or damage or injury caused by another trade contractor and further agrees to look to said trade contractor for the recovery from it of any such damage or injury. Trade Contractor shall procure and pay, all necessary permits required for performance by Trade Contractor under this agreement which are obtainable by Trade Contractor and will protect unfinished work and all materials for Trade Contractor's use, or incidental thereto, against every kind of damage, including damage by the elements, except damage by fire, until completion of the building. 6. Trade Contractor agrees to place debris in Builder's dumpster, unless instructed otherwise, rubbish and waste materials created by its operation as the work progresses, in order to maintain a clean, safe condition and, upon completion of its work, to remove all tools, equipment, materials and waste. All ladders are to be lowered and/or safely stored at the end of each day. Any rubbish or waste materials not cleaned up and properly disposed of by Trade Contractor will result in a backcharge. Trade Contractor hereby unconditionally guarantees all his work, labor and materials to Builder and the owner or purchaser for the period of Builder's warranty to the owner or purchaser. Builder agrees to supervise the work and coordinate the work of other suppliers and trade contractors to enable Trade Contractor to perform its work timely and revised 4/03 efficiently, and Builder agrees that it will make the payments required hereunder promptly when due. ® 9. Builder agrees to pay promptly Trade Contractor in his performance of his work and no later than 30 days within submission of any invoice, conditioned upon verification by Builder that the work has been satisfactorily performed. If payment is not received within this period and Trade Contractor does not receive notification justifying the delay in payment, Trade Contractor may terminate this Agreement upon seven (7) days written notice of his intent to do so. If Trade Contractor does so terminate following said notice, he shall be entitled to receive the reasonable value of all materials and labor incorporated in the job to the time of termination and the profit Trade Contractor would normally expect to have been made had the contract been fully and properly performed. 10. If the Trade Contractor shall become bankrupt, make assignment for the benefit of creditors, or otherwise become unable to carry out the work or if the Trade Contractor, without proper cause, removes from the work for a period in excess of forty-eight (48) hours, then the Builder may, by notice in writing or verbal to the Trade Contractor, terminate this Agreement if action is not taken to cure said default within twenty-four (24) hours after Builder's communication of such notice. If Trade Contractors shall in any manner unduly delay or otherwise neglect to finish his responsibilities, without bona fide cause, within the time hereinbefore provided, or otherwise breach any provision of this Agreement, Builder may, by written or verbal notice as hereinbefore provided, require the Trade Contractor to proceed with the work within twenty-four (24) hours after conveyance of such notice or correct any ® such breach of this Agreement within twenty-four (24) hour period and upon failure to do so, the Builder shall then have the tight to terminate this Agreement and to employ any other Trade Contractor to continue and complete the said work according to said plans and specifications, or any alterations or additions as hereinbefore provided, and shall also have the right to authorize such replacement trade contractor to use any materials or property of the Trade Contractor upon the ground. If the expense to complete the contract, in addition to any payments made of the Trade Contractor hereunder, shall exceed the original subcontract price plus costs for any additional work, Trade Contractor shall be liable to the Builder for such excess sums. 11. In the event Trade Contractor discovers any inconsistencies or errors in his work with the Builder or other trade contractors in the plans and specifications, he shall, before performing said work, promptly bring such matters-to the attention of the Builder who shall then give Trade Contractor written instructions or directions relative to said inconsistency or error. No claims for additional compensation will be considered and Trade Contractor shall be entitled to no such additional sums, unless he shall have, if at all possible, brought the inconsistency or error to the Builder's attention prior to performing any work thereon. 12. This Agreement and every convenant and provision herein shall bind, apply to, and run in favor of the parties, their successors in interest and their legal representatives. • 13. In construing this Agreement, the Builder and Trade Contractor may be more than one person; that if the context so requires, the singular pronoun shall be taken to mean and include the plural, the masculine, the feminine, and the neuter; and that revised 4/03 generally all grammatical changes shall be made, assumed, and implied to make the provisions hereof apply equally to corporations and to individuals. Trade Contractor's Address: 3d l)•I/yM&-a& G'/j f1.???f?dv R . /7111 Business Phone: 7 f7 Ufa &/ - yqf Emergency Phone: 9/7 Z Z 3 Fax: 7 7 5-`G - `LS'D Trade Contractor's Federal ID #: Incorporated? Myes 0110 LaMarco Heating and Cooling Printed Trade Contractor Company Name 21-, JA,,-? D - Printed e of rade Contractor Accepted and Approved 104- Signature o Trade Contractor Dat Custer Homes, Inc. 0-0 Signature of Builder Builder's Address: 2805 Old Post Road, Suite 200 Harrisburg, PA 17110 Business Phone: (717) 232-6027 • revised 4/03 Terms and Conditions C, • E Construction Requirements: The work of all Trade Contractors, their employees, and/or trades is expected to be performed in a good and workmanlike manner. Workmanlike quality is defined as workmanship which meets or betters those criteria indicated in the construction plans, The Company's Scope of Work and defined by industry standards for each trade. Inspection Reports: The Trade Contractor and a Company representative shall walk the job together and complete each section of the inspection report(s). The Trade Contractor must correct any deficiency found during the inspection and the job must be 100-percent complete before payment will be made. The Trade Contractor and a Company representative must sign-off on all sections of the inspection reports(s) attesting that the job is correct and complete. Punch-List: The site superintendent shall inspect the work of each Trade Contractor and will issue a punch-list of all items requiring correction as soon as the Trade Contractor has completed his or her work The Trade Contractor is expected to immediately complete their punch-list so that he or she does not slow down the overall construction of the home and/or the scheduling of the next trade contractor. Should the Trade Contactor not return to complete his or her punch-list within a reasonable time then the site superintendent may hire someone to complete the punch-list and the Trade Contractor will be back charged for this work The job will not be considered to be complete and no payment shall be made until all punch-list items are completed and approved by the site superintendent Homeowner's Walk-Through List: Any items found on the homeowner's walk-through that require correction must be completed immediately upon notification by the site superintendent. Time is of the essence for completing corrections on homeowner's walk-throughs. If any Trade Contractor does not return to correct his or her items listed on the walk-through list then someone else will be hired to make the corrections and the Trade Contractor will be back charged Safety: The Trade Contractor acknowledges that he or she has/will complete the Safety Training programs as required by The Company and that he or she has his or her own Safety and Haz-Com program for their employees and/or trade contractors. Trade Contractor agrees to comply with OSHA and/or any other governmental agency's safety rules and regulations. Should any citations, fines, and/or penalties, etc., be incurred by The Company due to the negligence of the Trade Contractor, the Trade Contractor agrees to indemnify The Company for any and all penalties, fines, etc., incurred. Insurance: [Trade Contractor acknowledges that a requirement of working for The Company is for the Trade Contractor to have current Worker's Compensation and General Liability Insurance at all times. The Trade Contractor agrees to indemnify The Company and to be responsible for any claims, expenses, or litigation arising from any claim made against The Company due to any injury of the Trade Contractor's employee or trade contactor for any worker's compensation claim. The Trade Contractor also agrees to indemnify The Company and to be responsible for any claims, expenses, or litigation arising from any claim made against The Company due to the workmanship, equipment, or materials supplied by the Trade Contractor.] It is your responsibility to notify us immediately if your insurance is canceled for any reason. No Trade Contractor is allowed to work without current insurance. Should you fail to notify us and we are notified of your uninsured status by someone other than you, you will be removed from our list of approved Trade Contractors and all money due you for any work will be withheld, in full, until you have current insurance and we have received a new original Certificate of Insurance. Security: The Trade Contractor is responsible for closing and locking all windows and doors before leaving the job site at the end of each day. If there is a problem on the job site due to Trade Contractor not closing and locking all windows and doors the Trade Contractor shall be responsible for said negligence. Cleanliness: The Trade Contractor is responsible for leaving the work area clean and &ee of debris. If it is necessary for The Company to remove debris left by the Trade Contractor, the Trade Contractor will be assessed a minimum clean-up fee of S 100.00. The site superintendent or other The Company representative will designate an area for all building debris and trash to be placed. Such area may be a dumpster or a designated trash pile on the lot Trash, such as lunch or snack trash, is not to be thrown on the floor of the house or on the jobsite. All such trash must be placed in the trash basket/can/dumpster and properly secured so as to not blow away. Port-a johns are provided on all job sites. Any person found using sinks, tubs, commodes that are not hooked up, ductwork, closets, etc., as a toilet will be fined $100.00 and will not be allowed back on any of The Company's jobsites. It is the responsibility of the Trade Contractor to impress on his or her employees and trade contractors that this offensive habit of using any area as a toilet facility will not be tolerated. Warranty: All work is to be guaranteed for one (1) year from date of closing of the house. Certain items must be guaranteed for (2) years- These items are details in The Company's printed Limited Warranty booklet The Trade Contractor acknowledges that he or she received a copy of The Company's printed Limited Warranty booklet and that he or she agrees to abide by the warranty coverage requirements and time period printed in this document as they pertain to his or her trade. Drue-Free Workplace: The Company is a drug-free workplace. The use of any controlled substances (drugs) or alcohol on any of The Company's jobsite(s) is not permitted. Should the Trade Contractor, his or her employees and/or trade contractors be found to be in possession of either drugs or alcohol on thejobsite(s) the Trade Contactor will be requested to leave the jobsite and will not be allowed to return to work until the problem is corrected Pricioz/Change Orders: All work is quoted and priced per home. Payment will be made per the price listed on the purchase order. Any change order will be priced per change order. No additional work will be considered, allowed, or paid other that that priced on the purchase order. Should the Trade Contractor be requested to perform any additional work the Trade Contractor must request a hand purchase order from the site superintendent before additional work is performed. Purchase Order Number. No invoice shall be paid that does not include the purchase order number for the job. The preprinted Request for Payment issued by The Company will be used as the invoice. Trade Contractor shall not begin work before The Company has issued a Purchase Order. Damage and/or Wastefulness of Materials: Damage to materials and installed items such as flooring, windows, cabinetry, fixtures, etc., caused by negligence on the part of the Trade Contactor, his or her employees and/or trade contractors will result in backcharges for the amount necessary to replace or repair the item. Wastefulness of materials by the Trade Contractor will result in the cost of the material being deducted from payment due the Trade Contractor. Proof of Name and IRS ID Number: The IRS requires that we have on file in our office proof that the name and Federal ID number (or Social Security number) that you are working under is the same as is on file with the IRS. We require a copy of a document from the IRS showing your name and ID number (Federal ID for businesses or Social Security number for individuals). You also will be asked to complete a Form W-9. Without this documentation the IRS requires that we withhold 20 percent of all money due you, which must then be forwarded to the IRS. The "insured name" on your insurance certificate must match the name on the documents above and the W-9. All checks will be made payable to the name on the above. No insurance certificate will be accepted as valid that reflects a different name froZone e above-described documents. Signature of Trade Contractor Date Sep 28 07 02:59p Heirloom Cabinetry 7174362093 VERIFICATION Theodore Wagner, Jr_, President of Heirloom Cabinetry of Pennsylvania, Inc., deposes and says, subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification to authorities, that he is the President of Heirloom Cabinetry of Pennsylvania, luc., that he makes this verification by its authority and that the facts set forth in the Complaint are true and correct to the best of his/her knowledge, information and belief. 12- G' '7 Date Theodore E_ Wagner, Jr_, Presi t Heirloom Cabinetry of Pennsylvania, Inc. 9 p.1 CERTIFICATE OF SERVICE I hereby certify that on this _/,D_ day of , 2007, a true and correct copy of the foregoing Complaint was served by means of United States mail, first class, postage prepaid, upon the following: W. Darren Powell, Esq. Corey J. Adamson, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 99 Harrisburg, PA 17108-0999 c ? w 70 a t r, J .? T r d SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-05705 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HEIRLOOM CABINETRY OF PENNSYLV VS LAMARCO CONTRACTING INC 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 LAMARCO CONTRACTING INC but was unable to locate Them deputized the sheriff of DAUPHIN serve the within COMPLAINT & NOTICE County, Pennsylvania, to On October 24th , 2007 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So answers: Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Dauphin County 37.25 Sheriff of Cumberland County Postage 1.99 76.24 ,/ 1??o?JaZ, 10/24/2007 RHOADS & SINON Sworn and subscribe to before me this day of to wit: in his bailiwick. He therefore A. D. -In The Court of Common Pleas of Cumberland County, Pennsylvania Heirloom Cabinetry of Pennsylvania Inc v5. LaMarco Contracting Inc No. 07-5705 civil Now, October 4, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now,. within 20 , at o'clock M. served the upon at by handing to a 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 off1treof e 4exiff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania HEIRLOOM CABINETRY OF PA INC vs County of Dauphin LAMARCO CONTRACTING INC Sheriff's Return No. 1442-T - - -2007 OTHER COUNTY NO. 07-5705-CIVIL AND NOW:October 18, 2007 COMPLAINT LAMARCO CONTRACTING INC to JOEL LAMERCE of the original at 1:14PM served the within upon by personally handing 1 true attested copy(ies) COMPLAINT to him/her the contents thereof at 130 HILLYMEDE CIRCLE HBG, PA 17111-0000 Sworn and subscribed to before me this 18TH day of OCTOBER, 2007 1 A---,I NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2010 and making known So Answers, Sheriff of Dauphin County, Pa. By S. ?? 'A :?? Deputy Sheriff Sheriff's Costs:$37.25 PAID BY COUNTY SCHAEFF David W. Francis, Esquire Attorney I.D. No. 53718 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys ttorneysfor Plaintiff HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. Plaintiff V. LAMARCO CONTRACTING, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-5705 JURY TRIAL DEMANDED HEIRLOOM CABINETRY OF PENNSYLVANIA, INC.'S RESPONSE TO THE PRELIMINARY OBJECTIONS OF LAMARCO CONTRACTING, INC. This is Heirloom Cabinetry of Pennsylvania, Inc.'s ("Heirloom") response to the preliminary objections of LaMarco Contracting, Inc. ("LaMarco") in the above-referenced matter. 1. Admitted. 2. Admitted. 3. Admitted. By way of further answer, Heirloom is also seeking cost and fees as permitted by law. 4. Admitted. 5. Admitted. 671222.1 6. Admitted. By way additional answer, soon after the complaint in this matter was filed, and before the preliminary objections were filed by LaMarco, Counsel for Heirloom told Counsel for LaMarco that it would be filing a Motion to Consolidate both complaints into a single cause of action. A draft of that Motion is attached as exhibit A. 7. Admitted that this Court issued an Order addressing the preliminary objections filed in the matter at Docket No. 06-4482. With the exception of the claim for legal fees in the demand cause, it is denied that this Order has any direct relevance to the actions filed by Heirloom in this matter. 8. Admitted. 9. Admitted. HEIRLOOM'S RESPONSE TO THE FIRST PRELIMINARY OBJECTION OF LAMARCO 10. Heirloom incorporates paragraphs 1 through 9. 11. Admitted. 12. Admitted. By way of additional answer, Heirloom specifically incorporates paragraph 6 above as if fully set forth here at length. Heirloom has never concealed the fact that these complaints arise out of the same contract. Heirloom's counsel has specifically advised LaMarco's counsel of this fact. 13. Admitted. By way of additional answer, Heirloom incorporates paragraphs 6 and 12. Also as further answer, the consolidation of both causes of action into a single matter addresses LaMarco's objection to Heirloom's additional causes of action. 2 14. This averment is denied. These causes of action would only be waived if they are not consolidated with the matter at Docket No. 06-4482. As set forth above, Heirloom specifically advised LaMarco of Heirloom's intention to consolidate these complaints into a single action. 15. Denied. The appropriate resolution of this objection is the consolidation of the matters into a single complaint. HEIRLOOM'S RESPONSE TO THE SECOND PRELIMINARY OBJECTION OF LAMARCO 16. Heirloom incorporates paragraphs 1 through 15. 17. Admitted. 18. Admitted in part and denied in part. Pa.R.C.P. 1020(d) does not mandate that the causes of action are waived where there is a consolidation of the actions. 19. Denied as stated by LaMarco. This objection to Heirloom's complaint can be remedied by a consolidation of the matters into a single complaint. 20. Denied. These claims would only be waived if they are not consolidated. 21. Denied. The appropriate remedy is the consolidation of the cases into a single matter. HEIRLOOM'S RESPONSE TO THE THIRD PRELIMINARY OBJECTION OF LAMARCO 22. Heirloom incorporates paragraphs 1 through 21. 23. Admitted. The inclusion of the demand for legal fees was set forth by our inadvertence. 24. Admitted. 25. Admitted. 3 26. Admitted. 27. Admitted. HEIRLOOM'S RESPONSE TO THE FOURTH PRELIMINARY OBJECTION OF LAMARCO 28. Heirloom incorporates paragraph 1 through 27. 29. Denied as stated by LaMarco. The provision of the subcontract between LaMarco and Custer Design Group provided as follows: Should Trade Contractor damage work of other contractors or Builder, Trade Contractor shall pay the cost of repairing such damage and hold Builder and owner harmless. Trade Contractor agrees that he will not hold Builder responsible for loss or damage or injury caused by another contractor and further agrees to look to said trade contractor for recovery from it of any such damage or injury. 30. Denied as stated by LaMarco. The subcontract between LaMarco and Custer Homes, Inc. contains the same language as set forth in paragraph 29 above. 31. Admitted in part and denied in part. The term "subdivisions" should actually be "subcontract provisions." 32. Admitted in part and denied in part. It is denied that Custer Design Group could not bring a cause of action for breach of contract against LaMarco. Heirloom's complaint suggests that only one of the Custer entities was the prime contractor on this project, and that the other was its alter ego. In that capacity, Custer Design Group could bring such an action. 33. Denied as stated. Heirloom agrees that the "general rule" is that a breach of contract claim cannot be sustained in the absence of privity between the parties. However, there are exceptions to this general rule. This Court agreed with this in its Order granting in part and denying in part LaMarco's Preliminary Objections to Heirloom's Complaint in matter 06-4482. Heirloom has sufficiently pled sufficient facts supporting its claim as an exception to this rule. 4 34. Denied. This Court's Order actually addressed the fact that the Complaint in matter 06-4482 did not plead sufficient facts to implicate an exception to the general rule. 35. Denied as a conclusion of law to which no responsive pleading is required. 36. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, Heirloom states that LaMarco has misstated the holding of Wilcox v. Regester. 37. Denied as a conclusion of law to which no response is required. HEIRLOOM'S RESPONSE TO THE FIFTH PRELIMINARY OBJECTION OF LAMARCO 38. Heirloom incorporates paragraph 1 through 37. 39. Admitted. 40. Denied as a conclusion-of law to which no response is required. To the extent a response is required, this is an action based upon a breach of the subcontract between LaMarco and Custer Homes, Inc. Specifically, that subcontract provides that LaMarco is responsible for paying for the damages it causes to any other contractor working on the project. It does not limit this duty to only those who have a subcontract with Custer Homes, Inc. 41. Admitted. 42. Admitted. 43. Denied. 44. Denied. 45. Denied. 46. Denied. 47. Denied as a conclusion of law to which no response is required. 5 HEIRLOOM'S RESPONSE TO THE SIXTH PRELIMINARY OBJECTION OF LAMARCO 48. Heirloom incorporates paragraph 1 through 46. 49. Admitted. 50. Admitted. 51. Admitted. 52. Admitted in part and denied in part. Count III to Heirloom's complaint is a breach of contract cause of action. 53. Denied as a conclusion of law to which no response is required. WHEREFORE, Heirloom Cabinetry of Pennsylvania, Inc. hereby respectfully requests that this Honorable Court dismiss the Preliminary Objections filed by Defendant LaMarco Contracting, Inc. with prejudice. RHOADS SINON LLP DATED: November 26, 2007 By: David W. Francis, Esquire Attorney I.D. No. 53718 Jennifer Zimmerman, Esquire PA I.D. No. 89459 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 6 VERIFICATION I, David W. Francis, verify pursuant to 8 Pa. C.S. § 4904 relating to unsworn falsification to authorities, that I am Counsel for Heirloom Cabinetry of Pennsylvania, Inc., and that I am authorized to make this verification on its behalf, and that all factual averments are true and correct to the best of my knowledge, information and belief. The only averments of fact set forth in this pleading relate to communications between this law firm and LaMarco's counsel. As such, Heirloom is without information sufficient to verify these averments but I am. ' ,I 126 ?-? /V/ x Date David W. F cis Counsel for Heirloom Cabinetry of Pennsylvania, Inc. David W. Francis, Esquire Attorney I.D. No. 53718 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff HEIRLOOM CABINETRY OF PENNSYLVANIA, INC. V. Plaintiff LAMARCO CONTRACTING, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NOS. 06-4482 and 07-5705 JURY TRIAL DEMANDED HEIRLOOM CABINETRY OF PENNSYLVANIA, INC.'S MOTION TO CONSOLIDATE This is Heirloom Cabinetry of Pennsylvania, Inc.'s herby moves to consolidate the matter at Docket No. 06-4482 with the matter at Docket No. 07-5705 as follows: 1. This is a motion to consolidate the matters pending at Docket Nos. 06-4482 and 07-5705 into a single cause of action at Docket No. 06-4482. 2. On August 24, 2006 Heirloom Cabinetry of Pennsylvania, Inc. ("Heirloom") filed a complaint against LaMarco Contracting, Inc. seeking payment of damages arising out of a construction project where both served as subcontractors ("the first action") 3. The first action is still pending. 4. On September 28, 2007 Heirloom filed a second complaint against LaMarco for damages arising out of the same project and requesting the same damages ("the second action"). 5. So far, only written discovery has been served. It has not been answered. No depositions have been scheduled. 1 671288.1 6. Neither matter is currently scheduled for trial. 7. Consolidation of these matters into a single cause of action will not prejudice either party. 8. Heirloom seeks to consolidate these actions into a single cause of action at Docket No. 06-4482. 9. Heirloom advised opposing counsel after filing of this complaint that it would be seeking to consolidate these matters. 10. Heirloom has contacted opposing counsel to obtain their consent. WHEREFORE Heirloom Cabinetry of Pennsylvania, Inc. respectfully requests the issuance of an Order granting Heirloom's motion to consolidate these actions into a single action at Docket No. 06-4482. RHOADS & SINON LLP DATED: November 26, 2007 By: David W. Francis, Esquire Attorney I.D. No. 53718 Jennifer Zimmerman, Esquire PA I.D. No. 89459 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Heirloom Cabinetry of Pennsylvania, Inc. 2 CERTIFICATE OF SERVICE I hereby certify that on this 26th day of November, 2007, a true and correct copy of the foregoing "Response to the Preliminary Objections of LaMarco Contracting, Inc." was served by United States mail, first-class, postage prepaid, upon the following: Corey J. Adamson, Esquire Anthony T. Lucido, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 David W. Francis, Esquire T r , ri .d ? : JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE David W. Francis, Esquire Attorney I.D. No. 53718 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff HEIRLOOM CABINETRY OF IN THE COURT OF COMMON PLEAS PENNSYLVANIA, INC. CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. LAMARCO CONTRACTING, INC. CIVIL ACTION - LAW Defendant NO. 07-5705 TO THE PROTHONOTARY: Kindly discontinue, without prejudice, the above-captioned matter and mark it closed for the record. RHOADS & SINON LLP By: David W. Francis, Esquire Attorney I.D. No. 53718 Jennifer Zimmerman, Esquire Attorney I.D. No. 89459 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 Phone: (717) 233-5731 Dated: January 18, 2008 Attorneys for Plaintiffs 676948.1 CERTIFICATE OF SERVICE I hereby certify that on this 18th day of January, 2008, a true and correct copy of the foregoing Praecipe to Discontinue was served by United States mail, first-class, postage prepaid, upon the following: Corey J. Adamson, Esquire Anthony T. Lucido, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 David W. Francis, Esquire 2 C"} f?.J y ('774T7 ? f-"? Y L?? ?? ? -?{ ?? ?rW1 -.?