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HomeMy WebLinkAbout03-5313CARLISLE AREA SCHOOL DISTRICT, PLAINTIFF LYONS CONSTRUCTION SERVICES, INC., DEFENDANT : IN THE COURT OF COMMON OF : CUMBERLAND COUNTY, : PENNSYLVANIA : : ACTION FOR DECLARATORY : JUDGMENT : 2003 CIVIL TERM, NO. '~_'f I ii NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by 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 CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 SAIDIS, SHUFF, FLOWER & LINDSAY SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA Dated: Supreme Court I.D. #27742 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff CARLISLE AREA SCHOOL DISTRICT, PLAINTIFF LYONS CONSTRUCTION SERVICES, INC., DEFENDANT : IN THE COURT OF COMMON OF : CUMBERLAND COUNTY, : PENNSYLVANIA : : ACTION FOR DECLARATORY : JUDGMENT : 2003 CIVIL TERM, NO. ~J/ COMPLAINT AND NOW COMES the Plaintiff, Carlisle Area School District, by and through its attorneys, and hereby makes claim for declaratory relief to join Lyons Construction Services, Inc. as a party to this action adjudicating Rogers Electric, Inc.'s ("Rogers Electric") claim for construction work completed by Rogers Electric, and in support thereof avers as follows: 1. Plaintiff is the Carlisle Area School District ("the District"), with principal offices located at 623 West Penn Street, Carlisle, Cumberland County, Pennsylvania. 2. Defendant is Lyons Construction Services, Inc. ("Lyons Construction"), a general contractor with principal offices located at 5237 East Trindle Road, Mechanicsburg, Cumberland County, Pennsylvania. SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 3. Pursuant to competitive bidding procedures, the District accepted Lyons Construction's submitted bid to perform certain general contracting work for the District, according to terms and conditions set forth in a written contract made between Lyons Construction and the District. 4. The contract between the District and Lyons Construction, at Contract Section 01311, item 1.05M, provides that interior pads were to be furnished by each of the prime contractors, and "[e]xterior concrete stairs, retaining walls, pads and bases are by the General Contractor." A photocopy of the relevant portion of the contract is attached hereto and incorporated herein as Exhibit A. 5. The contract between the District and Lyons Construction also stated in Section 01101, item 1.22A3, provided that the Electrical Construction Contractor shall provide cast-in-place concrete work for "interior concrete pads required for work of this Contract." A photocopy of the relevant portion of the contract is attached hereto and incorporated herein as Exhibit B. 6. The contract between the District and Lyons Construction further states in Section 01101, item 1.06A3, provides that the General Construction Contractor would provide all cast-in-place concrete work "except as included in other prime contracts." A photocopy of the relevant portion of the contract is attached hereto and incorporated herein as Exhibit C. 7. The work provided for in the contract between the District and Lyons Construction concerning the cast-in-place concrete work, specifically for concrete site light bases, which was actually performed by the electrical contractor, Rogers Electric, Inc. SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 8. Rogers Electric now claims, and the District disputes, monetary damages allegedly due to Rogers Electric in consequence of the asserted installation of certain "concrete site light bases," which were to have been installed by Lyons Construction. 9. Rogers Electric has submitted to arbitration under the auspices of the American Arbitration Association its claim for damages of $58,014.00, pertaining to the said site light bases, to which the District has refused to pay. 10. It is the position of the District that any recovery of Rogers Electric should be from Lyons Construction, the general contractor, that had been assigned the work under the relevant contract provisions. 11. The Supplemental Conditions of the Construction Contract between the District and Lyons Construction, at Paragraph 6.2.5.1, provided that the owner would not be a party to disputes or actions between prime contractors or sub- contractors. A photocopy of the relevant portion of the contract is attached hereto and incorporated herein as Exhibit D. 12. The Supplemental Conditions of the Construction Contract also specifically authorized, under Paragraph 4.9.5, the District to "join other Contractors to such proceeding either by consolidation of proceedings or by joinder where such joinder or consolidation is necessary to afford complete relief." A photocopy of the relevant portion of the contract is attached hereto and incorporated herein as Exhibit E. 13. The District sought to have the arbitrator dismiss the action with respect to the District, or in the alternative, to join Lyons Construction, as the proper responsible party under the Contract. SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street 14. On October 1, 2003, Lyons Construction filed an answer to the District's Demand for Arbitration, which provided that Lyons Construction did not have a direct contractual relationship with Rogers Electric, and therefore all funds are recoverable against the District. WHEREFORE, the plaintiff Carlisle Area School District prays this Honorable Court for a declaration that, under the terms of the contract between the parties, Lyons Construction, Inc. should be joined as a party in the arbitration before the American Arbitration Association. SAIDIS, SHUFF, FLOWER & LINDSAY By: 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA CARLISLE AREA SCHOOL DISTRICT,: IN THE COURT OF COMMON OF PLAINTIFF : CUMBERLAND COUNTY, LYONS CONSTRUCTION SERVICES, INC., DEFENDANT :PENNSYLVANIA :ACTION FOR DECLARATORY JUDGMENT : 2003 CIVIL TERM, NO. CERTIFICATE OF SERVICE On this ~t~.~ day of October, 2003, I hereby certify that I served a true and correct copy of the foregoing Complaint for Declaratory Judgment, upon all parties of record via Certified Mail, addressed as follows: Sudhir R. Patel, Esquire Riley and Fanelli, P.C. No. 1 Mahantongo Street Pottsville, PA 17901 ..... ~lyn I~. smith, Esq. SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 9/21'/2000 ' SI~CTION '01311 PROJECT COORDINATION AND MEETINGS Each Prime Contractor shall, after Owner occupancy of premises, coordinate access to site for correction of defective Work and Work not in accord with Contract Documents, to minimize disruption of Owner's activities. Staff Name Submittal: Within seven days after notification by the Construction Manager, each Prime Contractor shall submit to the Construction Manager and the Architect/Engineer list of its principal staff assignments, including Superintendent and other personnel in attendance at site; identify individuals, their duties, and responsibilities; list their addresses, telephone numbers, and home telephone numbers for use in case of "off-hour" emergencies. 1. General: In addition to its project superintendent, each Prime Contractor shall provide other administrative and supervisory personnel required for proper performance of Work, including special personnel required for coordination of operations with other Prime Contractors. 1,04 COORDINATION DRAWINGS H.V.A.C. Contractor shall prepare basic ductwork coordination drawings for project use, outlining the installation routing of his particular contract items. The Contract Documents will be used as guide, with final approved coordination drawings governing installation sequence and location. Ductwork coordination drawings shall be distributed within 25 days after bid award. Each Prime Contractor shall take basic coordination drawings and within 14 days add (draft) their particular trade item in locations decided upon in coordination meetings. Each Prime Contractor shall add items to the coordination drawings only after all present at the coordination meetings agree to their location. Sequencing of drawing additions as follows: 1. H.V.A.C. Construction Contractor (prepares original coordination documents). 2. General Construction Contractor. 3. Plumbing Construction Contractor. 4. Fire Protection Construction Contractor. 5. Electrical Construction Contractor. Adjustments in sequencing and location will be made as necessary in coordination meetings. Drawings will be prepared in accord with applicable rules, regulations, and governing authorities. Once reviewed and approved by each Prime Contractor, the H.V.A.C. Contractor shall prepare a final reproducible systems coordination drawing, illustrating the work by each Prime Contractor. This reproducible drawing shall be submitted with two prints to the Construction Manager and one to each applicable Prime Contractor. The Construction Manager will forward this drawing to the Architect/Engineer for his information. 1.05 MULTIPLE PRIME COORDINATION A. General Contractor shall provide lintels required for openings, recesses in new construction to allow the passage of plumbing, fire protection, H.V.A.C., and electrical equipment. General Contractor shall also provide chases and openings for equipment in new construction as directed, supervised, located, marked, and configured within the project structure, by the Plumbing; Fire Protection, H.V.A.C.; and Electrical Contractors' personnel on-site. © 2000 by Foreman Architects Engineers 01311-3 98146 9/21/2000 SECTION"01311 ' PROJECT COORDINATION AND MEETINGS O. P. Q. The Prime Contractor whose work requires an opening, or recess, in existing construction shall be responsible to provide that alteration; to furnish and install lintels required; and to patch the construction to match the existing unaltered. General Contractor shall apply sealant around wall mounted fresh air intake louvers provided by the H.V.A.C. Contractor. General Contractor shall provide storm sewer system from a point five feet outside the perimeter of the building, unless noted otherwise. The Plumbing Contractor shall provide storm system within building including open air enclosed and partially enclosed courtyards, and underground to a point five feet outside the building perimeter, unless noted otherwise and shall make final connection to storm system. General Contractor shall provide door I¢)uvers. General Contractor shall coordinate coiling overhead counter doors with soiled dish table by Food Service Equipment Contractor and electrical requirements by the Electrical Contractor. General Contractor shall install various items furnished by the Food Service Equipment Contractor as indicated. Food Service Equipment Contractor shall furnish dry contacts for interconnection with building alarm, mounting curbs and pipe portals, and drain pan to appropriate contactors for installation. Plumbing Contractor shall make final connections and shall provide valved connections to make-up water feeders to hydronic system and chilled water system, as indicated. Plumbing Contractor shall make final connections to gas cocks on gas-fired heating units as indicated. Plumbing Contractor shall provide devices for food service equipment such as hose bibs, Guy-Gray box (Model B-150), water conditioner, water filter and pet cock for icemaker, hose reel with control units. Interior concrete bases and pads required for plumbing, fire protection, heating, and electrical equipment furnished under this specification shall be constructed by the Plumbing; Fire Protection, H.V.A.C.; and Electrical Contractors. Exterior concrete stairs, retaining walls, pads and bases are by the General Contractor. H.V.A.C. Contractor shall install ductwork extension from dryer and for dishwasher. H.V.A.C. Contractor shall set controls, panelboards, and appurtenances installed in pipe lines and ductwork and shall furnish and install all control wiring. General; Plumbing; H.V.A.C.; and Electrical Contractors shall disconnect items of food service equipment scheduled for non-reuse, relocation, or reuse. Electrical Contractor shall provide electrical service and connection of food service equipment and auxiliary equipment. © 2000 by Foreman Architects Engineers 01311-4 98146 J I i t i 912112000 SECTION 01101 SUMMARY OF THE'PROJECT 1.21 CONTRACT NO. 98146-416 - H.V.A.C. CONSTRUCTION (Continued) 10. Division 15- Mechanical: (Continued) t. Section u. Section v. Section w. Section x. Section y. Section z. Section aa. Section bb. Section cc. Section dd. Section ee. Section ff. Section gg. Section hh. Section ii. Section jj. Section kk. Section II. Section mm, Section nn. Section oo. Section pp. Section qq. Section Section 15540 - H.V.A.C. Pumps. Section 15542 - Heat Transfer Package. 15545 - Chemical (Water) Treatment. 15557 - Cast Iron Boilers ~ Power Type. 15559 - Electric Hydronic Water Boilers. 15575 - Breechings, Chimneys, and Stacks. 15581 - Packaged Boiler Feedwater Equipment. 15624 - Direct Fired Air Units. 15671 -Air Cooled Condensing Units. 15682 - Air Cooled Reciprocating Water Chillers ACG ITl. 15663 - Air Cooled Rotary - Screw Water Chillers. 15731 - Environmental Control System. 15781 - Packaged Rooftop Air Conditioning Units. 15782- Large Packaged Rooftop Air Conditioning Units. '~5786 - Split Packaged Air Conditioning Units. 15790 - Air Coils. 15835 - Terminal Heat Transfer Units. 15840 - Air Terminal units. 15846 - Indirect Fired Make-Up Air Units - Kitchen. 15870 - Power Ventilators. 15886 - Dust Collection Systems. 15890 - Ductwork. 15910 - Ductwork Accessories. 15940 - Air Outlets and Inlets. 15970 - Automatic Temperature Control System. 15991 - Testing, Adjusting, and Balancing of H,V.A.C, Systems. 1.22 CONTRACT NO. 98146-417 - ELECTRICAL CONSTRUCTION Contract Work is specified in the following sections: 1. Division 1 - General Requirements: a. Administrative and procedural sections listed in Paragraph 1.04. b. Facilities and services sections listed Paragraph 1.05. 2. Division 2 - Site Work: a. Section 02072 - Minor Demolition for Remodeling. (demolition required for removal of existing electrical work and installation of the work of this contract) b. Section 02315 - Excavation. (excavation required for installation of underground electrical work) c. Section 02320 - Backfilling. (electrical trenches) d. Section 02324 - Trenching. (underground electrical line) e. Section 02743 - Bituminous Concrete Pavement. (patching at electrical trenches) 3. Division 3 - Concrete: a. Section 03300 - Cast-In-Place Concrete. (interior concrete pads required for work of ti © 2000 by Foreman Architects EnGineers 01101-13 98146 i i i i i i i i 9/21/2000 SECTI~3N 01101 SUMMARY OF THE PROJECT 1.06 CONTRACT NO. 98146-401 - GENERAL CONSTRUCTION (Continued) Division 2 - Site Work: (Continued) n. Section 02824 - Ornamental Metal Fences and Gates. o. Section 02840 - Walk, Road, and Parking Appurtenances. Site Furnishings. p. Section 02870 - Division 3 - Concrete: a. Section 03100 - b. Section 03200 - c. Section 03300 - Concrete Forms and Accessories. Concrete Reinforcement. Cast-In-Place Concrete. (except as included in other prime contracts) d. Section 03450 - Plant - Precast Architectural Concrete. Division 4 - Masonry: a. Section 04065 - Masonry Mortar and Grout. b. Section 04413 - Limestone. c. Section 04418 - Slate Window Stools. d Section 04810 - Unit Masonry Assemblies. e. Section 04910 - Unit Masonry Restoration. f. Section 04930 - Unit Masonry Cleaning. Division 5 - Metals: a. Section 05120 - Structural Steel. (except as included in other prime contracts) b. Section 05210 - Steel Joists. c. Section 05311 - Steel Floor Deck. d. Section 05312 - Steel Roof Deck. e. Section 05400 - Cold Formed Metal Framing. f. Section 05500 - Metal Fabrications. g. Section 05510 - Metal Stairs. h. Section 05521 - Pipe and Tube Railings - Steel. i. Section 05530 - Gratings. j. Section 05800 - Expansion Control. Division 6 - Wood and Plastic: a. Section 06112 - Framing and Sheathing. b. Section 06114 - Wood Blocking and Curbing. (provide blocking for work under this contract and in cold formed metal framing as located by other prime contractors) c. Section 06200 - Finish Carpentry. d. Section 06610 - Glass Fiber Reinforced Plastic Fabrications. Division 7 - Thermal and Moisture Protection: a. Section 07140 - Fluid-Applied Waterproofing. b. Section 07212 - Building Board Insulation. c. Section 07213 - Batt Insulation. (except as included in other prime contracts d. Section 07260 - Vapor Retarders. e. Section 07270 - Air Barriers, f. Section 07412 - Metal Wall Panels. g Section 07466 - Preformed Metal Soffit Panel, (except as included in other prime contracts h, Section 07840 - Firestopping. i. Section 07900 - Joint Sealers, (except as included in other prime contracts 2000 by Foreman Architects Engineers 01101-3 98146 9/21/2000 DOCUMENT 00800 SUPPLEMENTARY CONDITIONS ARTICLE 6. CONSTRUCTION BY OWNER OR BY OTHER CONTRACTORS i 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION WITH OWN FORCES AND TO AWARD OTHERS CONTRACTS. 6.1.1: Delete the last sentence, and insert: "This Project will be performed with multiple Prime Contractors as indicated in Section 01101. The Contractors shall be aware that schedule adjustments will be required to coordinate with the Work of their Contract with the Work of other Prime Contractors." .1.3: Delete Subparagraph in its entirety. MUTUAL RESPONSIBILITY. .2.4: Delete from the first sentence, first line, the word "wrongfully" and amend the paragraph by the following: "The Contractor agrees to indemnify and hold the Owner harmless from any claims or damages brought by a separate Contractor arising out of actions, or omissions of the Contractor or his Subcontractors or suppliers in performing his work under the Contract Documents." 12.5: Delete this Subparagraph in its entirety and insert the following: 6.2.5 DISPUTES OR ACTIONS BETWEEN CONTRACTORS. 6.2.5.1: Should the Contractor, either itself or by its subcontractor or sub-subcontractors or their respective agents, servants, or employees, cause damage or injury to the property or work of any Prime Contractor or Contractors, or by failing to perform its Work (including the work of its subcontractor or sub-subcontractors) with due diligence, delay any Prime Contractor or Contractors, which suffer additional expense or damage as a result, the parties involved in such dispute shall settle by agreement or arbitrate said claim, dispute or disputes by referring same to the American Arbitration Association. Said dispute or disputes shall be determined pursuant to the Construction Industry Arbitration Rules of the American Arbitration Association then in effect. The Owner will not be a party to disputes or actions between Prime Contractors or subcontractors concerning such additional expense or damage. It is agreed by ali par[les that disputes or actions between Contractors concerning the additional expense or damage will not delay completion of the work, which shall be continued by the parties, subject to the rights hereinbefore provided. It is agreed by the parties to this Contract (the Owner as promisee and that the Contractor as promisor) that the intent of this clause is to benefit the other Prime Contractors on the project or related projects and to serve as an indication of the mutual intent of the Owner and the Contractor that this clause raise such other Prime Contractors to the status of third party beneficiaries only as to the terms and conditions of Subparagraphs 6.1.1, 6.2.1, and 6.2.5. The Contractor agrees that Subparagraphs 6.1.1, 6.2.1, and 6.2.5 are provided as a benefit to the Contractor and, that they specifically exclude claims against the Owner for delay or other damages. , Foreman Architects Engineers 00800-25 98146 9/21/2000 DOCUMENT 00800 SUPPLEMENTARY CONDITIONS .4: In addition and prior to arbitration, the parties shall endeavor to settle disputes by mediation under the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Mediation shall commence, unless otherwise agreed, within the same time limits stipulated in Subparagraphs 4.9.1, 4.9.4, and 4.9.4.1 for the filing of a notice of a claim in arbitration. Such time limits for arbitration shall then be extended for the duration of the mediation process, plus ten days." 4.9.2: Add Subparagraphs 4.9.2.1 through 4.9.2.3: 4.9.2.1: if any arbitration proceeding commenced pursuant to this Agreement, the parties shall be entitled to conduct pre-hearing discovery for a period ninety days, which discovery may include depositions, written interrogatories not to exceed forty in number (inclusive of subparts) and written requests for the inspection and reproduction of relevant documents or tangible things. Responses to written interrogatories and document' requests shall be served within thirty days of service thereof. With respect to expert testimony and discovery related thereto, Rule 4003.5 of the Pennsylvania Rules and Civil Procedure shall apply. The arbitrator(s) shall have the authority to issue appropriate orders to enforce the par[les' entitlement to discovery hereunder and, upon disobedience of any such order, may prohibit the disobedient party from introducing in evidence designated documents, things or testimony. 4.9.2.2: A party who files a notice of demand for arbitration must assert in the demand all Claims then known to that party on which arbitration is permitted to be demanded. When a party fails to include a claim fails to include a Claim through oversight, inadvertence or excusable neglect or when a Claim has matured or been acquired subsequently, the arbitrator or arbitrators may permit amendment only if reasonable notice is given prior to any evidentiary hearing. 4.9.2.3: In the event of any litigation or arbitration between the parties hereunder, all attorneys fees and other costs shall be borne by the party determined to be at fault and, in the event that more than one party is determined to be at fault, shall be allocated equitably by the court or arbitrator. 4.9.5: LIMITATION ON CONSOLIDATION OR JOINDER. Delete the first three sentences of Subparagraph 4.9.5 in their entirety and insert the following: "In any arbitration commenced pursuant hereto, either Owner or Contractor may join other Contractors to such proceeding either by consolidation of proceedings or by joinder where such joinder or consolidation is necessary to afford complete relief. In any arbitration commenced pursuant hereto, the Owner may join the Construction Manager and/or the Architect to such proceeding, either by consolidation of proceedings or by joinder where such joinder or consolidation is necessary to afford complete relief. In any arbitration proceeding commenced pursuant to the agreements between the Owner and the Construction Manager and Architect, either the Owner, the Construction Manager or the Architect may join the Contractor to such proceeding either by consolidation of proceedings or by joinder where such joinder or consolidation is necessary to afford complete relief." © 2000 by Foreman Arch/tects Engineers 00800-23 98146 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW CARLISLE AREA SCHOOL DISTRICT, Plaintiff VS. LYONS CONSTRUCTION SERVICES, INC., Defendant 2003 CIVIL TERM, NO. 5313 ACTION FOR DECLARATORY JUDGMENT PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Sudhir R. Patel, Esquire, as counsel for the above-captioned Defendant. Respectfully submitted, RILEY AN[) FANELLI, P.C. SUDHIR R. PATEL, ESQUIRE Attorney I.D. No. 75914 The Necho Allen No. 1 Mahantongo Street Pottsville,, PA 17901 Phone: (570) 622-2455 Fax: (570) 622-5336 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Praecipe for Entry of Appearance has been served on the following person(s) in the following manner: BY FIRST-CLASS MAIL, POSTAGE PREPAID ADDRESSED AS FOLLOWS: James D. Flower, Esquire SAIDIS, SHUFF, FLOWER & LINDSAY 26 West High Street Carlisle, PA 17013 DATE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW CARLISLE AREA SCHOOL DISTRICT, Plaintiff VS. LYONS CONSTRUCTION : SERVICES, INC., : Defendant : 2003 CIVIL TERM, NO. 5313 ACTION FOR DECLARATORY JUDGMENT NOTICE TO: Carlisle Area School District c/o James D. Flower, Esquire SAIDIS, SHUFF, FLOWER & LINDSAY 26 West High Street Carl!sle, PA 17013 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN' RESPONSE TO DEFENDANT'S, LYOiNS CONSTRUCTION SERVICES, INC., NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, RILEY AND/~NELLI, P.C. SUDHIR R. PATEL, ESQUIRE Attorney I.D. No. 75914 The Necho Allen No. 1 Mahantongo Street Pottsville, PA 17901 (570) 622-2455 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW CARLISLE AREA SCHOOL DISTRICT, Plaintiff VS. LYONS CONSTRUCTION SERVICES, INC., Defendant 2003 CIVIL TERM, NO. 5313 ACTION FOR DECLARATORY JUDGMENT ANSWER AND NEW MAi ~ ER ANSWER AND NOW, comes Defendant, Lyons Construction Services, Inc., ("Lyons"), by and through its undersigned counsel and Answers Plaintiff, Carlisle Area School District's ("the District") Claim for Declaratory Relief to join Lyons as a party to this action adjudicating Rogers Electric, Inc.'s ("Rogers Electric") claim for construction work completed by Rogers Electric and in support thereof avers as follows: 1. Admitted. 2. Admitted. 3. It is admitted that the District accepted Lyons bid to perform certain contracting work for the District. 4. No response required as the contract documents speak for themselves. themselves. 6. themselves. 7. 8. 9. No response required as the contract documents speak for No response required as the contract documents speak for Admitted. Admitted. Admitted. Denied, Lyons had no direct contractual relationship with Rogers Electric. By way of further answer, Rogers did the work at its own peril. 1 ]. No response required as the contract documents speak for themselves. 12. No response required as the contract documents speak for themselves. 1 3. Admitted. ] 4. Admitted. WHEREFORE, Answering Defendant, Lyons Construction Services, Inc., respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, Carlisle Area School District. NEW MATTER Lyons has no direct contractual relationship with Rogers Electric. Damages for which the District contends that Lyons is responsible 4. justified. 5. directly to Rogers Electric or liable over to the District are excessive, unfair, unreasonable and otherwise improper. The District's claims are barred by failure of consideration. Answering Defendant's actions and inactions were, at all times, Rogers Electric's performed work was knowingly performed. WHEREFORE, Answering Defendant, Lyons Construction Services, Inc., respectfully requests that this Honorable Court declare that Lyons Construction Inc. not be joined as a party in the arbitration before the American Arbitration Association. Respectfully submitted, RILEY AN[~,~NELLI, P.C. SUDHIR R.. PATEL, ESQUIRE Attorney I.D. No. 75914 The Necho Allen No. 1 Mahantongo Street Pottsville, PA 17901 (570) 622-.2455 Counsel for Defendant VERIFICATION I, BARRY LYONS, verify that I am authorized to make this Verification on behalf of Lyons Construction Sep~ices, Inc. I verily that the statements made in the foregoing Answer and New Matter to Plaintiff's Complaint which are within my personal knowledge are true and correc: and those which are based on information received from others I believe to be true and correct. I understand that any false statements in the foregoing Answers are subject tO the penalties under 15 Pa.C.S;A. Section 4904, relatin9 to unsworn falsification to authorities. Date: LYONS CONSTRUCTION SERVICES, INC. CERTIFICATE OF SERVI~E I hereby certify that a true and correct copy of Defendants' Answer with New Matter has been served on the following person(s) in the following manner: BY FIRST-CLASS MAIL, POSTAGE PREPAID ADDRESSED AS FOLLOWS: James D. Flower, Esquire SAIDIS, SHUFF, FLOWER & LINE)SAY 26 West High Street Carlisle, PA 17013 DATE: ~.f~_r ~.~ohn~ecretary to SUDHIR RT. PATEC ESQUIRE SAIDIS SHUFF, FLOWER & LINDSAY 26W. High Street Carlisle, PA CARLISLE AREA SCHOOL DISTRICT, PLAINTIFF LYONS CONSTRUCTION SERVICES, INC., DEFENDANT IN THE COURT OF COMMON Ob CUMBERLAND COUNTY, PENNSYLVANIA ACTION FOR DECLARATORY JUDGMENT : 2003 CIVIL TERM, NO. ~13 ACCEPTANCE OF SERVICE I accept service of the Complaint for Declaratory Judgment on behalf of Lyons Construction Services, Inc., and certify that I am authorized to do so. Dated: /~ '$' ,. Sudhir R. Patel, Esquire Riley and Fanelli, P.C. No. 1 Mahantongo Street Pottsville, PA 17901 Attorney for Defendant Lyons Construction Services, Inc. OCl 2 8 2003 CARLISLE AREA SCHOOL DISTRICT, : IN THE COURT OF COMMON OF PLAINTIFF : CUMBERLAND COUNTY, LYONS CONSTRUCTION SERVICES, INC., DEFENDANT : PENNSYLVANIA : : ACTION FOR DECLARATORY : JUDGMENT 2003 CIVIL TERM, NO. 5313 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA PLAINTIFF'S REPLY TO NEW MATTER AND NOW COMES the Plaintiff, Carlisle Area School District, by and through its attorneys, and makes the following Reply to Defendant, Lyons Construction Services, Inc.'s New Matter, and in support thereof avers as follows: 1. Denied. Rogers Electric, Inc. (hereinafter "Rogers") and Defendant Lyons Construction Services, Inc. (hereinafter "Defendant Lyons") both signed contracts with the Plaintiff which were interrelated and under which they had assumed obligations relating to other contractors involved in construction at the Carlisle Area School District. 2. Denied. It is denied that the damages for which Defendant Lyons may be held liable for are excessive, unfair, unreasonable and otherwise improper, and strict proof thereof is demanded. 3. Denied. Plaintiff's claims are not barred by failure of consideration. 4. Denied. The averment contained in this paragraph constitutes a legal conclusion to which no response is required. The obligation of the Carlisle Area School District to pay Defendant Lyons and Rogers was contingent upon compliance with the terms of the contract. One of the obligations assumed by SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA Defendant Lyons was the obligation to submit to arbitration to resolve disputes between contractors. 5. Denied. The averment contained in this paragraph constitutes a legal conclusion to which no response is required. By way of further answer, to the extent a response is required, Plaintiff believes that Rogers inadvertently performed the work that Defendant Lyons had performed. WHEREFORE, Plaintiff Carlisle Area School District prays this Honorable Court for a declaration that, under the terms of the contract between the parties, Lyons Construction, Inc. should be joined as a party in the arbitration before lthe American Arbitration Association. SAIDIS, SHUFF, FLOWER & LINDSAY James D. Flower, J~ ff Supreme Court I.D. #2774~ 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff VERIFICATION' I verify that the statements made in the foregoing Reply to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 1904, relating to unsworn falsification to authorities. Dated: _~, 2-] Carhsle' ·~r~',~,... $, heel' District Gerald L. Fowler, Superintendent SAIDIS SHUFF, FLOWER & LINDSA¥ 26 W. Hl~:,h Stree! ~'arll~le, PA SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA CARLISLE AREA SCHOOL DISTRICT, : IN THE COURT OF COMMON OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. LYONS CONSTRUCTION SERVICES, INC., DEFENDANT ACTION FOR DECLARATORY JUDGMENT 2003 CIVIL TERM, NO. 5313 CERTIFICATE OF SERVICE On this oq-~-'~ day of December, 2003, I hereby certify that I served a true and correct copy of the foregoing Plaintiff's Reply to New Matter, upon all parties of record via first-class mail, postage prepaid, addressed as follows: Sudhir R. Patel, Esquire Riley and Fanelli, P.C. No. 1 Mahantongo Street Pottsville, PA 17901 ~,giyn 1'~1. b'mith, Esq. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND cOUNTY: Please l i st the within matter for the next A~t Court. CAPTION OF CASE (entire caption must be stated in fuji) Carlisle Area School District, ( P!aint~-f f ) Lyons Construction Services, Inc. ( Defer~ant ) 5313 No. Civil 2003 State matter to be argued (i.e., plaintiff's motion for newtr~al, defendant's demuszer to cc~p]~int, etc.): Resolution of Plaintiff's Declaratory Judgment Action on the record. 2. Identify counsel who will argue case: (a) for plmlntiff: James D. Flower, Jr., Esquire ~ress: Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 (b) for defe_~dant: Sudhir R. Patel, Esquire ~ress: Riley and Fanelli, P.C. No. 1 Mahantongo Street Pottsville, PA 17901 3. I wi 11 notify al 1 Darties in writing within t~o days that ~ case has been Listed for ar9~mmnt- 4. Arg~nent Court Date: February 4, 2004 January 15, 2004 ey ~ for IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW CARLISLE AREA SCHOOL DISTRICT, Plaintiff VS. LYONS CONSTRUCTION SERVICES, INC., Defendant 2003 CIVIL TERM, NO. 5313 ACTION FOR DECLARATORY JUDGMENT ORDER AND NOW, this b ~ , of February, 2004, it is hereby ORDERED and DECREED that Plaintiff, Carlisle Area School District, is entitled to the relief sought forth in its Declaratory Judgment action. Specifically, Carlisle Area School District shall be permitted to join Lyons Construction Services, Inc. as an additional defendant in the American Arbitration Association case docketed to number 14 E 1100147403. BY THE COURT, ,~±Ok!O~O~i8 ~H.I. :lC)