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Home My WebLink About07-6274J VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07- 6ol-*?q c yu'il 4e-rM : CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 S. Bedford Street Carlisle, PA 17013 (800) 990-9108 VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. CIVIL ACTION - LAW JURY TRIAL DEMANDED AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan ma's adelante en las siguientes paginas, debe tomar accibn 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, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 S. Bedford Street Carlisle, PA 17013 (800) 990-9108 SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center 4431 North Front Street, 31d Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire pgood@sasllp.com Darryl J. Liguori, Esquire dliguori@sasllp.com Attorneys for Plaintiff VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW comes Plaintiff Varish Construction, Inc., by and through its attorneys, Smigel, Anderson & Sacks L.L.P., who states the following causes of action and, in support thereof, avers as follows: 1. Plaintiff Varish Construction, Inc. ("Varish") is a Pennsylvania Business Corporation with a principal place of business located at 800 Bullfrog Road, Gettysburg, Adams County, Pennsylvania. 2. Defendant The Commons at Parker Springs, Inc. ("Parker Springs") is a Pennsylvania corporation with a principal place of business located at 2159 Overhill Road, Allentown, Lehigh County, Pennsylvania 18103. 3. Defendant K&I Contractors, Inc. is a Pennsylvania Business Corporation with a principal place of business at 801 E. Fairmont Street, Allentown, Lehigh County, PA 18109. 4. PSI Pumping Solutions is a Pennsylvania corporation with a principal place of business at 134 Gun Club Road, York Springs, Adams County, Pennsylvania 17322. 5. This Court has jurisdiction over the parties and subject matter of the instant dispute. 6. Venue is appropriate in Cumberland County, Pennsylvania under Pennsylvania Rule of Civil Procedure 2179 as it is the county in which the Contract that is the subject matter of this Complaint was made and performed in and as it is the county that the transactions and/or occurrences out of which the causes of action arose took. Factual Backeround: 7. Varish and Parker Springs entered into the Contract on June 21, 2006 to perform site work at a location in North Middleton Township, Cumberland County, Pennsylvania. See Contractor Agreement (hereinafter "The Contract"), a true and correct copy of which is attached hereto and made part of this document as Exhibit "A". 8. In exchange for the timely performance of the site preparation, Parker Springs agreed to pay Varish $650,545.00. See Exhibit A, ¶ 3. 9. In addition to the work contracted for under the terms of the Contract, Vanish was requested to perform additional work by Parker Springs and K & I Contractors, which was memorialized through written invoices with K&I Contractors. See Invoices Nos. 1 though 16, of which 7 through 17 have not been paid (true and correct copies of which are attached hereto and made part of this document collectively as Exhibit "B".) 2 10. K & I Contractors, Inc. is the contractor hired by Parker Springs to construct the buildings at the site and at all times relevant hereto and were the authorized agents of Parker Springs. 11. The additional unpaid work, memorialized in the Invoices, totals $112,901.30. See Exhibit B. 12. The Defendants approved and accepted the additional work performed by Varish under the Contract and Invoices. 13. Varish has timely fulfilled its obligations under the terms of the Contract to the satisfaction of both Parker Springs, as the owner and K&I Contractors. 14. Furthermore, pursuant to the Contract, Varish contracted to purchase a sanitary pump with PSI for a cost of $196,500.00. A true and correct copy of the purchase agreement is attached hereto as Exhibit C. 15. Also, pursuant to the Contract, Varish purchased water pipe and other materials in the amount of $37,730.18. 16. By letter dated, September 17, 2007, counsel for Parker Springs cancelled the Contract between Varish and Parker Springs. (A true and correct copy is attached as Exhibit E) 17. Prior to the letter of September 17, 2007, there was no notice produced to Varish of any deficiencies or other problems with the Contract work. 18. As of the date of the filing of this action, a balance remains due, owing, and unpaid by Defendants on the Contract price in the amount of $149,340.80. 19. Furthermore, Varish incurred costs of $2,400.00 to remove materials from the job site and $4,500.00 to store materials removed from the job site due to Parker Springs' actions. 20. In addition, Varish incurred lost profits of $150,000.00 on the Contract price. 3 21. The total amount Defendants owe Varish, calculated by adding the unpaid Invoices to the unpaid Contract price, lost profits, as well as cost for materials purchased, and costs incurred to remove and store the materials, is $653,372.28. 22. Despite Varish's repeated and reasonable demands, the Defendants have failed, refused, and continue to refuse to pay all sums due and owing to Varish. COUNTI Breach of Contract Parish v. The Commons at Parker Springs, Inc. and K & I Contractors, Inc. 23. Varish hereby incorporates paragraphs 1 through 22, inclusive, of this Complaint as if fully set forth herein. 24. Varish and Parker Springs and K & I Contractors entered into the Contract whereby (a) Varish agreed to perform the work for the Parker Springs site; and (b) Parker Springs and K & I Contractors agreed to pay Varish for the work performed by Varish, whether that was work covered by the Contract or additional work requested by K & I Contractors. 25. Parker Springs and K & I Contractors accepted and approved all work performed by Varish. 26. Parker Springs and K & I Contractors have breached the Contract, by failing to pay Varish for the work performed. 27. Varish has continually abided by the terms of the Contract. 28. Varish suffered damages in the following amounts due to Defendants' breaches: a. Balance on the unpaid Contract price: $149,340.80 b. Balance on the unpaid Invoices: $112,901.30 4 C. Amount owing on sanitary pump: $196,500.00 d. Cost of unused water pipe and other materials: $37,730.18 e. Cost for removal of materials: $2,400.00 f. Cost for storage of materials: $4,500.00 g. Lost profits: $150,000.00 29. Therefore, Varish has suffered damages in the amount of $653,372.28 as a result. WHEREFORE, Varish Construction, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Parker Springs and K & I Contractors in an amount in excess of this county's mandatory arbitration limits together with interest, the costs of this action, attorney's fees, and such other relief that this Court may deem reasonable. COUNT II Quantum Meruit Parish v. Parker Springs and K&I Construction 30. Varish hereby incorporates paragraphs 1 through 29, inclusive, of this Complaint as fully set forth herein. 31. Defendants requested Varish to perform additional excavation and site work at the Parker Springs location at the direction and instruction of K&I Construction. 32. Defendants promised to pay Varish for the work performed. 33. Varish performed the excavation and site work, as requested, for the parker Springs location, as invoiced. 34. Defendants approved and accepted the work performed by Varish. 35. The Defendants have benefited from the work performed by Varish, but have failed to pay for such work. 5 36. The amount of $261,302.10 is the fair and reasonable value for the work performed by Varish comprising of the balance remaining on the Contract price and the unpaid Invoices. 37. Although Defendants have been repeatedly and reasonable notified of an outstanding balance of $261,302.10 due and owing to Varish for the performance of said work, Defendants have refused to make payment. WHEREFORE, Varish Construction, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Parker Springs and K&I Construction in an amount in excess of this county's mandatory arbitration limits together with interest, the costs of this action, attorney's fees, and such other relief that this Court may deem reasonable. COUNT III Unjust Enrichment Varish v. Parker Springs and K&I Construction 38. Varish hereby incorporates paragraphs 1 through 33, inclusive, of this Complaint as if fully set forth herein. 39. Defendants would be unjustly enriched if they were permitted to retain the benefit form the work performed by Varish without paying the monies owed to Varish for said work. 40. The aforesaid work performed by Varish and accepted by Defendants enriched Defendants in the amount of $261,302.10 41. The aforesaid amount is the fair and reasonable cost for the work performed by Varish and approved and accepted by Defendants. WHEREFORE, Varish Construction, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Parker Springs and K&I Construction in an amount in 6 excess of this county's mandatory arbitration limits together with interest, the costs of this action, attorney's fees, and such other relief that this Court may deem reasonable. COUNT IV Tortious Interference with Contract Parish v. PSI Pumping Solutions, Inc. 42. Varish hereby incorporates paragraphs 1 through 38, inclusive, of this Complaint as if fully set forth therein. 43. Varish and PSI entered into the contract to purchase a sanitary pump for the Parker Springs location in Cumberland County. The purchase agreement for the pump is attached hereto as Exhibit C. 44. Before the sanitary pump was installed, Parker Springs wrongly evicted Varish from the job site. 45. Thereafter, based upon information and belief, PSI contacted Parker Springs and offered to install the pump station themselves knowing that Varish already had a construction contract with Parker Springs which included, in part, the installation of the pump station. 46. Varish's anticipated profit on that portion of the construction Contract with Parker Springs was $30,000.00. 47. PSI's actions were intentional, willful, wanton and improper and designed to interfere with Varish's construction Contract with Parker Springs. 48. PSI did in fact interfere with the contractual relationship between Varish and Parker Springs by negotiating its own contract directly with Parker Springs. 49. PSI is liable to Varish for liability, pecuniary loss, punitive damages, costs, and attorneys fees for its tortuous conduct. 7 WHEREFORE, Varish Construction, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Parker Springs and K&I Construction in an amount in excess of this county's mandatory arbitration limits together with interest, the costs of this action, attorney's fees, and such other relief that this Court may deem reasonable. Respectfully submitted, SMIGEL, ANDERSON & SACKS, LLP Date: ? ob ?A 7 By Ole Teter M. G od, Esquire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff 8 OCT-24-07 02:50 PM VARISH?CONSTRUCTION6 717+334+5902 P.02 rKupr Y-d12 P O1?/01C F-/8' VERMCAMDIV The undersigned hereby verified th"t he is the President of the named Plaintiff in the foregoing action, that tree Beets set forth in the Complai,at are nue and corract to the best of his knowledge, iiifurrnador, , and belief, and further Rates that false statements herein are made subject to the penalties .019 Pa.C.S.A. ¢ 4904 relating to unworn falsification to authorities. Date: Ile< Thomas E, Varish„ President or?* Varish Con m,etion, Inc. ?Ky?l b?i+ 7( 09-2'4-' 07 0t : 50 FROM-cotarrn-tnity bans 051 717'2 92:03 T-213 P002/010 F-033 Contractor Agreement THIS AGREEMENT made the 21st day of June 20_2_6 by and between hereinafter tailed the Contraw and The Cottmons at Parker SPrs ng, Inc . hereinafter called the Owner WITNESSETN, that the Contractor and the Owner for the considerations named agree as follows. Arlicle 1. Scope of the Work The Contractor shall furnish all of the materlals and perform alt of the work shown on the Drawings and/or described in the Specl- fications entitled Exhibit A, as annexed hereto ash pertains to work to be performed on property at Svbdivision known as the Ca=ns at Parker Sprinq located in North Middleton Township, Cumberland County- Pennsylvania Article Z Tlmr of completion, The work to be performed under this Contract shall be commenced on or before August 26 20 06 and shall be substantially completed on or before June 20 .20_ 07 . Time is of the essence. The following constitutes substan- Gal completion of work pursuant to this proposal and contract: (Specify) Article 3. The Contract Price The Owner shall pay the Contractor (or the material and labor to be performed under the Contract the sum of Six Hindred. Fifty Thousand Four Hundred Fifty- , Dollars (S 650', 4541, subject to additions and deductions pursuant to authorized change orders. four Article 4. Progress Payments Payments of the Contract Price shag be paid in the manner following- (Specify) In stages as the ' rover et?ts are ins cted and acre ed North middleton Township and North Middleton AUthorit and as the securi is reduced. Article S. General Provisions Any alteration or deviation from the above specifications, including but not limited to any such alteration or deviation involv- ing, additlonal material and/or labor com, will be executed only upon a written order for same, signed by Owner and Contrac- tor, and if there is any charge for such alteration or deviation, the additional charge will be added to the conract price of this contract. if payment is not made when due, Contractor may suspend work on the job until such time as all payment; due have been made. A failure to make payment for a period in excess of 20 days from the due date of the payment shall be deemed a material breach of this contract. Page 1 • -Awam tear 6ME4. Soo,uuke!?, Ile .. e. c.. e.. A,- L? 09-24-'07 08: 50 FROM-cornrnuniV.; t_atiks 051 7173492303 T-213 P003;'010 F-033 In addition, the following get)era! prov6tons apply All work shall be completed in a wertrnan•like manner and in cGmpiiance with all building codes and other applicable laws. The Contractor shali furnish a plan and scale drawing showing the shape. size dimensions, and construction and equipment specifications for home improvements, a description of the work to be done and description of the materials to be used and the equ!pment to be used or installed, and the agreed consideration for the work. 3 To the extehl required by law all work shall be performed by individuals duly licensed and authorized by law to perform said work. 4. Contractor may at its discretion engage subcontractors to perform work hereunder, provided Contractor shall fully pay said subcontractor and in all instances remain responsible for the proper completion of this contract. 5. Contractor shall furnlsh Owner appropriate releases or waivers of lien for all work performed or materials provided at the time the next periodic payment shall be due. 6. All change orders shall be in writing and signed both by Owner and Contractor, and shall be incorporated in, and become a part of the contract. 7. Contractor shall at its own expense obtain all permits necessary for the work to be performed. E Contractor agrees to remove all debris and leave the premises in broom clean condition. !9 in the event Owner shall fall to pay any periodic or installment payment due hereunclK Contractor may - cease work without breach pending payment or r0ioiution of any dispute 10 All disputes hereunder shall be resolved by binding arbitration in accordance with rules of the American Arbitration Association 11 Contractor shall not be liable for any delay due to circumstances beyond its.control including strikes, casualty or general unavailability of materials. 12 Contractor warrants all work for a period of 1Z rnont},s following completion. Article 6. Indemplflcatlon To the fullest extent permitted by law, the Contractor shall indemnify, defend and hold harmless,. Owner and its agents and employees, from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of the work or providing of materials to the extent caused in whole or in part by negligent or wrongful acts or omissions of, or a breach of this apreement by, the contractor, a subcontrac- tor, anyone directly or indirectly employed by them or anyone whose acts they are legally responsible. Article 7. Insurance The Contractor represents that it has purchased and agrees that it will keep in force for the duration of the performance of the work or for such longer term as may be required by this agreement, in a company or companles lawfully authorized to do busi- ness in the State of Pennsylvania such Insurance as wi11 protect and the owner of the site, if the site is not owned by from claims for loss or injury which might arise out of or result from the Contractor's operations under this project, whether such operations be by the Con- tractor or by a subcontractor or its subcontractors. The Contractor represents and agrees that said insurance is written for and shalt be maintained in an amount not less than the limits of the liability specified below or required by law, whichever coverage is greater, The Contractor certifies that coverage plyr z waw,,wpgc.<Om 6 2001, Saolies VeO, l4C 4.?166 -1- 04,04 09-24-' 07 L13: 50 FROM-cornrnunit,? hanks 051 7172492203 T-213 P004/010 F-033 written on a "claims made' form will be maintained without interruption f(om the Commencement of work until the expiration of all applicable statutes of limitation?. t) Workers Compensation j 700.000.00 2) Comprehensive General Uability with limits of not less than S 2 000 000.00 per occurrence. 3! Comprehensive Automobile Liability (owned, non-owned, hired) of s 1 r 000, 000.00 each accident. The Contractor snail file Certificates of insurance, naming the owner/person hiring the contractor as additional insured, in dupli- cate, acceptable to all parties with prior to commencement of work, which shall contain a provision that coverages under the policies shall not be cancelled or allowed to expire or peintit rridte6dl changes until at least thirty (30 } days written notice has been given to additional insured- Article 8. Additional Perms as per Fxh-ibit B Name and Registraton No, of any Salesperson who solicited or negotiated this contract, Signed this 21st Signed in the presence of: N/A day of June 20 06 Witness: `? > f J rr •).?. ??.,. ?t•` ,.?-,,_-, Witness' Y Name of Owner/ Name of ContCbctor. l h U u? 1? Y tti ?L I? By. ? By: Signature: Sign tue: ?.w. Street Address, Wwv.soa?ur roT page i 0 206t. Sou.w Lyd,,, uC City/State/21p- Telephone No,, Contractor's State License No, L 34% 09-24-'07 08: 50 FROM-couitiiunitv banks 051 717249'2203 T-213 P005/010 F-033 V ARTS14 C ONSTRUCTION NC --- - _..._....... 777? 11 11 _....? .. Bid Proposal Commons at Parker Springs _ Middlesex Township Cumberland County Proposal Offered to: Proposal nate, The Commons Parkere Spring Inc. LLC Phone: 717-226-2127 1. Erosion Control: 1 18" Silt Fence 1000 If (M $ 2.50 $ 2,500.00 2 Construction Entrance 3 ea (M $ 1,090.00 $ 3,270.00 3 Inlet Sift Sacks 7 ea (Q $ 88.00 $ 616.00 4 Outlet Structure 1 ea Q $ 3,300.00 $ 3,300.00 5 Trash Rake/ Anti Vortex 1 ea a $ 1,800.00 $ 1,800.00 Erosion Control Subtotal i 11,486.00 II. Excavation to Include the Following: 1 Clearing 3 ac (M $ 4,890.00 $ 14,670.00 2 Strip Topsoil-8" Depth 4126 cy a $ 2,00 $ 8,252.00 3 Bulk Excavation CuttFill 9420 cy (0 $ 2.80 $ 26,376.00 4 Topsoil Replacement 6" 237 cy Q $ 4.50 $ 1,066.50 5 Fine Grade Curb 1252 if C $ 1.00 $ 1,252.00 6 Backflll Curb 1252 If @ $ 0.80 $ 1,001.60 7 Ternp, Seed & Mulching 29c a $ 1,200.00 $ 2,400.00 8 Export Rock Material 150 cy a $ 12.00 $ 1,800.00 9 Shoulder Excavation 503 cy C $ 11.00 $ 5,533.00 Excavation Subtotal $ 62,351.10 Sanitary Sewer to include the Following: 1 8" SDR-35 Sewer Laterals 700 If C $ 28.00 $ 19,600.00 2 4" Force Main Installation 440 If Q $ 23.00 $ 10,120.00 3 6" SDR-35 Sewer Laterals 898 If @ $ 22.00 $ 19,756.00 4 Precast Manhold 4' 4 ea @ $ 1,880.00 $ 7,520.00 5 8" x 6" Wyes 30 ea a $ 65.00 $ 1,950.00 6 Poured Flow Channel 4 ea $ 90.00 $ 360.00 7 Clean Outs Complete 2 ea $ 200.00 $ 400.00 8 Complete Stone Backfill 11 ton $ 12.00 $ 132.00 9 Connect to Existing Manhold 2 ea @ $ 880,00 $ 1,760.00 10 Test Manholes 4 ea @ $ 135.00 $ 540.00 11 Flush + Test Main 2108 If $ 2.50 $ 5,270.00 12 Horizontal Boring-Dirt Conditions 160 If $ 140.00 $ 22,400.00 13 Temp. Paving 10 sy Q $ 44.00 $ 440.00 14 Lift Station 1 Is @ $ 1 95,600.00 $ 195,600.00 Sanitary Sewer Subtotal $ 285,848.00 hlwsir: 717-434.7173 Pcx:; 717-.t.94.,°.<7f7t P:ui1: cut'qa•:a,n - - - .r? ? f3 09-24-' 07 03: 50 FPC111-colnniunit - batiks 051 7172492203 T-213 P006/010 F-033 IV Storm Sewer to include the Following: 1 15" CSPP Installation 580 if @ $ 25,00 $ 14,500.00 2 18" CMP Installation 60 If 0 $ 18.00 $ 1,080.00 3 Precast Type C Inlets 6 ea @ $ 1,250.00 $ 7,500.00 4 Precast Type M inlets _1 ea _.@_ _.$ _ _ 1,060.00 _ $ _ 1,060.00 5 Precast Manhole 1 ea @ $ 1,880.00 $ 1,880.00 6 End Sections 2 ea @ $ 550.00 $ 1,100.00 7 Rip Rap R-4 56 ton @ $ 44.00 $ 2,464.00 Storm Sewer Subtotal $ 30,484.00 V. Water Line to Include the Following: 1 8" D.I. Installation 720 If @ $ 43.50 $ 31,320.00 2 3/4" Copper K Service Installation 735 if @ $ 26.00 $ 19,110.00 3 8" Cate Valves 2 ea @ $ 950.00 $ 1,900,00 4 Service Extensions 450 If @ $ 28,00 $ 11,700.00 5 Fire Hydrant Complete 2 ea @ $ 3,450,00 $ 6,900.00 6 Meter Pit Installation 2 ea $ 26,900.00 $ 53,800,00 7 Water Main Testing 720 If $ 3.00 $ 2,160.00 Water Line Subtotal 126,890.00 VI. Paving and Curb to Include the Following: 1 Fine Grade Subgrade 2512 sy @ $ 1.00 $ 2,512.00 2 6" 2A-Mod. Subbase 2512 sy @ $ 4.50 $ 11,304.00 3 2" ID-2 Binder Course 2512 sy @ $ 7.00 $ 17,584.00 4 1" 10-2 Wearing Course 2512 sy @ $ 7.40 $ 18,588.00 5 Road Widening Excavation 200 cy @ $ 26,00 $ 5,200.00 6 Precut Bituminous Paving 845 If C $ 3.00 $ 2,535.00 7 Tackcoat 2512 sy @ $ 1.00 $ 2,512.00 8 Curb Sealing 2650 If @ $ 0.35 $ 927.00 9 Traffic Control 1 Is $ 5,500.00 $ 5,500.00 10 18" Concrete Curbing 1255 If @ $ 9,50 $ 11,922,50 11 Road Widening Paving 366 sy @ $ 55,00 $ 20,130.00 Paving and Curbing Subtotal $ 98,715.80 VII. Gen eral Conditions to Include the Foll owing: 1 Supervision 1Is @ $ 3,500.00 $ 3,500.00 2 Mobilization 1Is @ $ 6,200.00 $ 13,200,00 General Conditions Subtotal $ 16,700.00 Grand Total $ 632,454,90 S4% 09-24-`07 03:50 FPCM-cotarjunity banks 051 7172492203 T-213 P007/010 F-033 ?peclal Provisions Commons at Parker Springs Upon acceptance of this proposal, please forward Varish Construction Inc. applicable financing information for this project, which may Include verification of the funding source of the established line of credit This proposal has been prepared with material prices available to us on the date of the proposal and will remain firm for 30 days. After 30 day if not accepted, we reserve the right to increase our iunit prices to reflect cost increases. Due to the current volatility of the liquid asphalt market, all asphalt pricing on this proposal is subject to escalation ixt the lime of plaCernen't hmsed on th? published RADOT Liquid Asphalt index. The Asphalt lmdex for April 2006 is 304.00/ Ton. All engineering, project stakeout, permits, test, inspections and tapping fees, and bonds shall be the responsibility and at the expense of the Owner. Prior to the start of any excavation, the owner's engineer and/or surveyor shall provide Varish Construction Inc. Limited verification of existing topography as shown on grading plans. All Bulk Excavation Is moved once, either to fill area or to stockpile. If this material must be handled again an additional charge will apply All excess topsoil, fill and rock are to remain stockpiled on the site. Import Fill will be at Owner Expense Any and all wetland replacement work. If unstable conditions are encountered at any subgrade elevation, there will be an additional charge to undercut these areas and replace them with sutlable material. If water for compaction purposes is not available on site or permitted to be used from that source, importing of water from an off-site source will be an additional charge to the contract. Please not our price does not include any gas trenching. Upon receipt of approved plan from the utility company a firm price will be quoted. Storm Drainage - Decorative facing, plantings, landscaping at endwalls and drainage areas are not included within this proposal Waterline - No permanent blow-off devices have been estimated. Upon completion of the binder course Varlsh Construction Inc. will request that the Owner accept all erosion control measures installed and release Varlsh Construction Inc, from further responsibility Exclusions Soils Testing Site Stakeout - by others Townships, Street & Storm Permit Final Pond Conversion Wetland Mitigation work Pavement Base Drain No Brick Paver Installation or Stone Base Street Signs Gas Trenching Electrical trenching and Light Standards Sweep and Tack Coat . 09-24-'07 08:50 FROM-community banks 051 7172492203 If any rock is encountered, the following i,-:* prices will apply. These unit prices will be t- that is drilled and blasted in addition to tl•. iginal contract amount. Ripped Bulk Rock Excavation Blasted Bulk Rock Excavation Ripped Trench Rock Excavation Blasted Trench Rock E=xcavation Rock Excavation with Hoe Ram Ripping Frozen Ground Bore Rock Excavation T-213 P008f010 F-033 I for rock @ $ 9.00 /cy @ $ 45.00 /cy @ $ 65.00 Icy @ $ 75.00 /cy @ $ 185.00 Icy @ Time & Materials @ $ 175.00 /cy Varish Construction Inc. shall execute a stipulation against Liens at Owners request. No construc%on All required insurance information naming Owner as additional insured, shall be in effect prior to construction. Varish Construction Inc. shall furnish all labor, equipment and material necessary to complete the above mentioned scope of work for the sum of $ 632,454.00 VCI Authorized Signature: L Date: l Acceptance of Proposal: Date: t 7 d.}r'6 09-24-' 07 02: 50 FP0M-rorurnunit:,J banks 051 7 17 2492203 Language for Proposal of Site Work: T-213 P009/010 F-033 Contractor shall furnish all labor and materials necessary to construct and complete all improvements and infrastructure as set forth in the Land Development Improvement - Agreement between North Middleton Township and The Commons- at Parker Spring, Inc_, and the plans and specifications of The Commons at Parker Spring Subdivision. The improvements shall be completed to the satisfaction, approval an acceptance by North Middleton Township and the North Middleton Authority, All construction shall be in accordance with the laws, ordinances, regulations and requirements of the Commonwealth of Pennsylvania, North Middleton Township, The Pennsylvania Department of Environmental Protection Agency, the North Middleton Authority and any and all other appropriate agencies. Payment under this proposal by the Owner to the Contractor shall be made in stages as the improvements are inspected and accepted by North Middleton Township and North Middleton Authority. 09-24-1 07 08: 51 banl<:s 051 7172492203 T-2-13 P010/010 F-033 The Commons at Parker Spring, T OWNER VS. C,141 &" e ara' 1, CONTRACTOR STIPULATION AGAR' LIENS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA NO. WHEREAS, The Commons at Parker Spring, Inc, of the City of Allentown, County of Lehigh and Commonwealth of Pennsylvania , hereinafter called the Owner, entered into a contract with (/ i? > >T of County of and Commonwealth of Pennsylvania, hereinafter called the Contractor, to provide materials and perform labor necessary for the construction and development of all site improvements including but not limited to grading, paving storm water management systems, water systems, sanitary sewer and infrastructure upon land known as: ACCTHAT CERTAIN tract of land situate partly in North Middleton Township and Partly in Middlesex Township, Cumberland County, Pennsylvania, bounded and described according to the Final Subdivision Plan for The Commons at Parker Spring, prepared by Hartman and Associates, Inc., Engineers and Surveyors, dated March 23, 1999, revised October 20, 2005, to be recorded in the Office for the Recording of Deeds in Cumberland County, Pennsylvania Now, -Fvh e 3 /- , 204) t7 , before any authority has been given by the Owner to the Contractor to commence work on said improvements or purchase materials for the same, it is hereby stipulated and agreed by and between said parties as part of said contract and for the consideration therein set forth, that neither the undersigned Contractor, any Sub-Contractor or material man, nor any other person furnishing labor or materials to the said Contractor under the contract entered into between said parties shall file a lien for work done or material furnished to-said building, improvements or any part thereof. This stipulation is made and intended to be filed with the prothonotary within 10 days after date in accordance with the requirements of the Act of August 24, 1963, P.L. 497, as amended. IN WITNESS WHEREOF, the said parties have hereunto set their hands and seals the day and year aforesaid. SIGNED, SEALED AND DELIVERED THE COMMONS AT PARTNER SPRING, INC. in the presence of: BY: (Seal) Harry rill, President ATTEST: y? , BY: P,AXE/?,s-??-? ?? ,T- VCI Varish seonstruction inc. rArVnrrr. # ry 800 Bullfrog Road Date: 06/26/07 Gettysburg, Penna. 17325 717334-7173 Bill to: K & I Construction 801 E. Fairmont Street Allentown, Penna. 18109 Description Amount Blasting, test drilling water and sewer lines, blasting materials, Dyno TX 2, hydraulic drills, seismology reports and filling, travel time, Removal and placement of blasting mats, removal of blasted material (approximately 491 Cubic Yards at $55.00 per yard) Fees, blasters, laborers and seismology reports plus filing fees ......... $27,000.00 TOTAL AMOUNT . l AUT IZATION Project: The Commons at Parker Springs North Middleton Township Cumberland County $27,000.00 VCI aris Construction Inc. 800 Bullfrog Road Date: 07/17/07 Gettysburg, Penna. 17325 717 334-7173 Bill to: K & I Construction 801 E. Fairmont Street Allentown, Penna. 18109 Project: The Commons at Parker Springs North Middleton Township Cumberland County Description Amount Work performed in addition to contract required by township to raise manhole # 7 and raise grade of pipe to manhole # 6 32.5 hrs TL 150 rubber track loader @ $90.00 per hour $ 2,925.00 29 hrs EC 140 volvo excavator @ $ 105.00 per hour 3,045.00 38 hrs labor @ $30.00 per hour 1,140.00 101 tons of stone @ $11.00 per ton 1,111.00 170 feet of 8" pipe replaced in order to raise grade @ $ 2.83 per foot 481.10 1 box mastic sealer 55.00 1 miscellaneous materials 66.00 1 trench box rental 8X8X8 300.00 1 trench box rental 8X12X36 240.00 1 test for manhole and line 240.00 TOTAL AMOUNT $ 9,603.00 VCI aris onstruction nc. 800, Bullfrog Road Date: 07/17/07 Gettysburg, Penna. 17325 717 334-7173 Bill to: K & I Construction 801 E. Fairmont Street Allentown, Penna. 18109 Description Project: The Commons at Parker Springs North Middleton Township Cumberland County Amount Removal of additional rock and rental of hammer required for removal over and above blasting and removal on previous billing 36 hrs EC 140 volvo excavator @ $105.00 per hour $ 3,780.00 7.5 hrs 953B track loader @ $ 125.00 per hour 937.50 26 hrs TL 150 rubber track loader @ $90.00 per hour 2,340.00 1 590SM backhoe W/ 1500 pound hammer 855.00 TOTAL AMOUNT $ 7,912.50 vCI Varish Construction Inc. 800 Bullfrog Road Gettysburg, Penna. 17325 717 1'34-7173 Bill to: K & 1 Construction 801 E. Fairmont Street Allentown, Penna. 18109 INVOK"E" # 10 Date: 07/24/07 Project: The Commons at Parker Springs North Middleton'rownshi.p Cumberland County Description Amount Cost of 2" foam insulation for inside of foundation walls, stone, track hoe, Labor and grading of 8" of stone for house, garage and porch for buildings 16-19 as per proposal number 355 dated 5/21107 TOTAL AMOUNT AUTHORIZATION $ 6,152.10 TO "d c'66St1s^=^z+L i L qNo I lollaISM4`3_ (-HS I ZAH ti WJ VO: 50 vCI Varish Construction Inc. 800 Bullfrog Road Gettysburg, Penna. 17325 717 334-7173 Bill to: K & I Construction 801 F. Fairmont Street Allentown, Penna. 18109 Description Cost of'2" foam insulation for inside of foundation walls, stone, track hoe. Laborand grading of 8" of stone for house, garage and porch for buildings 11- 15 as per proposal number 354 dated 05/21/07. INVOICE # 11 Date: 07/224/07 Project: The Commons at Parker Springy North Middleton Township Cumberland County Amount TOTAL AMOUNT $7,607.10 AUTHORIZATION Z9 I J Z06S+b$^z+L T AL 9N0 I ionZJ1SN00<-HS I >JV , W.J v0:60 Le-trZ-d3s VCI Varish Construction Inc Invoice # 12 800 Bullfrog Road Date: 08/29/07 Gettysburg, Penna, 17325 717 334-7173 Job LQcation: The Commons at Parker Spring Jgb I)es #,t?a ion; Additional work and materials required by Middlesex 't'ownship Quote(See attached drawing supplied by the township) Condition Payment due upon receipt as work has been started prior to approval upon request of township inspector to proceed immediately Description Labor to remove and install additional manhole to tie into Carlisle Borough 24" line and adaptor which has to be fabricated and fussed by piece as per Borough specifications via Larry, the Borough inspector, including backlill and grading $ 4,215,90 Cost of materials (MH 401 A stone, fittings, pipe & ctc) $1,804.60 Cost of concrete per yard and placement of five (5) yards $ 525.00 Cost of concrete per yard and placement of one (1) yard $ 225.00 Total amount $ 6.770.50 20 - d z069+tr£'£+L T .J- 9 N o I ion>JISN00tH8I tlrJA Wd fl0 = 60 L0-t? z-d3s VCI Varish Construction Inc:. 800 Bullfrog Road Gettysburg, Penna. 17325 717 334-7173 Bill to: K & I Construction 801 E. Fairmont Street Allentown, Penna. 18109 Description INVOICE -4 13 Date: 09/05/07 Project: The Commons at Parker Springs North Middleton Township Cumberland County Jack hammer rock with 590 SM back hoe w/ hydraulic rental (1 '/2 days) foreman/operator for removal of rock ( six hours) Move in/move out charge 590 SM back hoe w/ hammer (twice) 590 SM back hoe usage charge ($ 105.00 per hr) EC 140 volvo excavator ( $90.00 per hr) TI, 150 rubber track loader ($90.00 per hr) TOTAL AMOUNT AU'I HORIZ.ATION Amount $ 1,283.10 270.00 470.00 420.00 180.00 630.00 $ 3.253.10 tpe • d Z0GQ+V22-.'. T .L 9NO I -Lo n?H1SN03-( HS I a"^ Wa t-0:60 L0-vz- J3S OCT-02-07 11:51 PM VARISH-?CONSTRUCTION6 VCI 717+334+5902 P.03 Varish Construction Inc. 801) Bullfrog Road (;ettysburb. Penna. 17325 717 334-7173 Bill to: K & I Construction 801 I. Fairnlont Street Allentown, Penna. 18109 Description Time spend at this site to determine grades required for sewerage which were incorrectly marked by your employee (Stan) from Hoover Engineering us per contract agreement 6.5 hrs F..C 140 Volvo Excavator n $ 105.00 per hour 15 hrs foreman on site fa; $45.00 per hour 15 hrs laborer on site (41 $30.00 per hour INVOICE # 14 Tate: 09/26/07 Project: The Commons at Parker Springs North Middleton Township Cumberland County TOTAL AMOUNT Amount $ 682.50 675.00 450.00 $ 1,807.50 OICT-02-07 11:51 PM VARISH?CONSTRUCTION6 VCI 717+334+5902 P.02 Varish Construction Inc. 800 Bulll'rug, Read Gettysburg, Penna. 17325 717334-7173 Bill to: K & I Construction 801 E. Fairmont Street Allentown, Penna. 18109 INVOICE # 15 Date: 09/28/07 Project: The Commons at Parker Springs North Middleton Township Cumberland County Description Amount Rental for equipment left on site due to work stoppage as per letter received vies counxel for Harry Brill on 09/17/07 This rental period is floc 09/18/07 thru 09/22/07 and 09/24/07 thru 09/26/07 Track Hoc AC 140 10 hrs per day at $95.00 per hr Skid l.oadcr'T'[.150 10 hrs per day at $85.00 per hr Rake flog/Bucket 10 hrs per day at $10.00 per hr Gravel Bucket 10 hrs per day at $20.00 per hr 'french Roller 10 hrs per day at $300.00 per day Forks for skid loader 10 hrs per day at $10.00 per hr Rackhoe 590SM 10 hrs per day at $75.00 per hr TOTAL AMOUNT $ 7,600.00 6.800.00 800.00 1,600.00 2,400.00 800.00 6,000.00 $ 26,000.00 I OCT-18-07 04:03 AM VARISH+CONSTRUCTION6 VCI Vurish Construction Inc. 800 Bullfrog Road Gettysburg,. Penna. 17325 717 334-7173 [sill to: Harry Brill 21.59 Ovcrhill Road Allentown, Penna. 18103 Description Amount Construction stake out for Pump Station location at above location as requested by the township and above owner $270.00 (Invoice from Hoover Engineering attached) 717+334+5902 INVOICE # 16 Date: 10/15/07 Project: The Commons at Parker Springs North Middleton Township Cumberland County P.02 I OET-24-07 04:43 PM VARISH+CONSTRUCTION6 1,,, W VCI 717+334+5902 P.02 varish Construction Inc. 800 Bullfrog Road Gettysburg, Penna. 17325 717 334-7173 Bill to: Harry Brill 2159 Overhill Road Allentown, Penna. 18103 INVOICE # 17 Date: 10/24/07 Project: The Commons at Parker Springs North Middleton Township Cumberland County Description Construction stake out for Strom Sewer and grade at above location as needed for installation (Invoice from Ifoover Engineering attached) Amount $940.00 ,fix ?.?b",-r ? OCT-23-07 02:35 PM VARISH-*CONSTRUCTION6 717+334+5902 P-02 PSI Pumnina Stlut a-- Inc. ,?,-,?, +34( uU Chub RLI YQ-L Ap•,nrr PA 1737: r)Atc: tt-?8-2121-2007 CIVNtorncr- VC I ;ne. ( ontnel: Tom Veriih A:Idr-%+, SW Hut: Frog Road Caittisturg, PA 17325 Ph. 717-334-7131 1%. 717-334•SQ,)2 Suhmi,led by: Michael Aiell,) Parker Springs Pump Station Statement or %Vorkt As per Attuch_c Quote One Year wnmtnt} from Start-up :f Pimping Sys-:rats. AbSUID116ons t. As Per Anached l.tacte Total Project Investment I QASE HID - ITrve -lase Wd 1a(gel S 196.500.n PROJEC.'I .ACCEPTANCE:- ., r 14? tU PSI Pumping Sc-lutions, Inc. S:gned By: ?•- '?"?-•?_ Date: 9-?7-1007 1-I's is yout uuthorir+tipn to en ete was oatlined 6bovc and on the fo;loNO-iS 4hecti if this p;orwwl. Accep,ancc sigrttl L.?_- --- _ ... .....__..._.. Date: //71 tt ?r:-It +uuttc: y_ ha_t Q 1- /? i 5-.---_ . .?. -_. N:tyrnen.t. rwitu: 5040 down for Submittals, 30% Start-Prmlwt, 200/a Project complcte. 1QtN owner rteaaptance (No-th Middleton TWP: VYnrn hut. parties :ign this pnnposal. this eonsti:'.+tes a legal and binding contract bretweei the parties, in oc>ntp;;vice and to according to the Standard Terms and Conditions of PSI Pumping Solutions, Inc,°s Sale Agroemcm. No a&:ccment shall be made unicis this document is completed Keith a siiaature. This prupaaal may be withdtac+n If not acc:pted within ninety (9M days front date of submission, DISCL..A r N1 ER PSI POMPing SOIutiona, Int.'s proposal hcrtin is cvrIndential ant: contains informetiun proprietary to PSI Prnnping Cnltuiona, Inc. Nc information contained in this proposal nuty' be disclcied to tiny pcrsanls) or parties under any c r?;jmAtances ocher than empluyecs of the company speclfled In the ah^ve I-eading for wt ica it is intended witho..r express wcittcn pent is:ion of PSI Pumping Soi..itons, tnrr i Pumpirp solutions Inc .t Page -1 t'd L09069Z-L tL L990-69Z-L.L 19d epq O1 10 SO daS 1 ` CA 1 w n? , .i r 4 { r. VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.7_ (g a-7 q ()v,( SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. IMPORTANT NOTICE YOU HAVE PROPERTY WHICH THE PARTIES TO THE ABOVE LAWSUIT WITH TO ENTER FOR INSPECTION OR OTHER ACTIVITIES. THE MOTION ATTACHED TO THIS NOTICE ASKS THE COURT FOR AN ORDER ALLOWING THE ENTRY INTO YOUR PROPERTY. IF YOU CONSENT TO THIS ENTRY PLEASE FILL IN THE ATTACHED FORM. PLEASE CONTACT THE ATTORNEY LISTED BELOW: Peter M. Good, Esq. Smigel, Anderson & Sacks, LLP 4431 N. Front Street, 3rd Floor Harrisburg, PA 17110 (717) 234-2401 IF YOU DO NOT CONSENT TO THE ENTRY, YOU HAVE A RIGHT TO A HEARING ON THE MATTER. A DATE FOR PRESENTATION OF THE MOTION TO THE COURT WILL BE SET AND THE PARTY FILING THE MOTION WILL GIVE YOU FIFTEEN DAYS NOTICE OF ITS PRESENTATION. IF YOU DO NOT APPEAR AT THE PRESENTATION OF THE MOTION, THE COURT MAY ENTER AN ORDER ALLOWING ENTRY. YOU MAY WISH TO TAKE THIS NOTICE TO A LAWYER WHO CAN ADVISE YOU. IF YOU DO NOT HAVE A LAWYER AND WISH TO OBTAIN ONE, CONTACT THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 S. Bedford Street Carlisle, PA 17013 (800) 990-9108 VARISH CONSTRUCTION, INC., Plaintiff, V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. d 7- 4-27 V Cccnd 7.w,-, THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S MOTION FOR ENTRY UPON PROPERTY OF A PERSON AND NOW comes Plaintiff Varish Construction, Inc., by and through its attorneys, Smigel, Anderson & Sacks L.L.P., to file the following Motion for Entry Upon Property of a Person and avers in support as follows: 1. Simultaneously with the filing of this Motion, Plaintiff Varish Construction, Inc. (hereinafter "Varish") filed a Complaint against The Commons at Parker Springs, Inc. (hereinafter "Parker Springs") and K & I Contractors, Inc. (hereinafter "K & I Contractors") for breach of contract, unjust enrichment, and quantum meruit. 2. The gravaman of Varish's Complaint is that Parker Springs and K & I Contractors have failed to pay Varish for certain site work and construction done at the Parker Springs subdivision housing project, located at North Middleton Township, Cumberland County, Pennsylvania. 3. At issue in this case, is the status of the job site and the status of the construction and work performed by Varish. 4. Varish has alleged in its Complaint that it has finished certain work, as described in the Contractor Agreement and Invoices attached to the Complaint as Exhibits A and B, respectively. 5. Defendants dispute that Varish performed the work and/or performed the work in accordance with the Contract standards. 6. Varish has been evicted from the job site in September 2007 pursuant to instructions from Defendant's counsel. 7. Varish is now requesting that they be permitted to enter upon the Parker Springs site to inspect it and document the progress that Varish had made on the construction work. 8. Pa. R.C.P. 4009.31 permits a party to enter upon designated property in the possession or control of another person for the purpose of inspecting and measuring, surveying, photographing, testing, or sampling the property or any designated objection or operation thereon. 9. Such information is relevant to Varish's claims and it is necessary for Vanish to be permitted to inspect the site, which is in the control of another party, to assist in substantiating its claims against the Defendants. WHEREFORE, Plaintiff Varish Construction, Inc. hereby requests an Order from this Honorable Court permitting it to enter upon the property located at Parker Springs North Middleton Township, Cumberland County, Pennsylvania to inspect it pursuant to Pa. R.C.P. 4009.31. Respectfully submitted, SMIGEL, ANDERSON & SACKS, LLP Date: By Peter M. Good, Esqui ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. No. THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Plaintiff in the above-captioned matter, certify that I this day served a copy of the foregoing Motion upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: The Commons at Parker Springs, Inc. 2159 Overhill Road Allentown, PA 18103 (Pro se Defendant) K&I Constructors, Inc. 801 E. Fairmont Street Allentown, PA 18109 (Pro se Defendant) PSI Plumbing Solutions, Inc. 134 Gun Club Road York Springs, PA 17322 (Pro se Defendant) Date: /a10?/,,7 SMIGE ANDERSON & SACKS, LLP By Peter M. Go d, Esquire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff t+a 4 y C„] s ? p w ? ?i z (71 D .. Co ; C i VARISH CONSTRUCTION, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW THE COMMONS AT PARKER SPRINGS, INC., K & I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendant NO. 07-6274 CIVIL TERM ORDER OF COURT AND NOW, this 7t' day of November, 2007, upon consideration of Plaintiff's Motion for Entry Upon Property of a Person, a Rule is hereby issued upon Defendants to show cause why the relief requested should not be granted. RULE RETURNABLE within 5 days of service. ,Xter Good, Esq. 4431 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff Xie Commons at Parker Springs, Inc. 2159 Overhill Road Allentown, PA 18103 Defendant, pro Se Is, A BY THE COURT, 1?t S Z :? t-! ! - sAlOll' LOR -4? & I Contractors, Inc. 801 E. Fairmont Street Allentown, PA 18109 Defendant, pro Se ZSI Pumping Solutions, Inc. 134 Gun Club Road York Springs, PA 17322 Defendant, pro Se rc VARISH CONSTRUCTION, INC. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER CIVIL ACTION - LAW SPRINGS, INC., K&I CONTRACTORS, INC., and JURY TRIAL DEMANDED PSI PUMPING SOLUTIONS, INC., : Defendants PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendants The Commons at Parker Springs, Inc., K&I Contractors, Inc. and PSI Pumping Solutions, Inc. in the above-captioned matter. Respectfully submitted, METTE, EVANS & WOODSIDE BY: Michael D. Reed, Esquire Sup. Ct. I.D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendants DATE: November 14, 2007 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 METTE, EVANS & WOODSIDE BY: Michael D. Reed, Esquire Sup. Ct. I.D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendants DATE: November 14, 2007 482630v1 C7 Q q -c? zi a m cn rr? cn X- VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW PLAINTIFF'S MOTION FOR ENTRY UPON PROPERTY OF A PERSON TO THE PROTHONOTARY: Kindly WITHDRAW Plaintiffs Motion for Entry upon Property of a Person filed on October 26, 2007 in the above-captioned action. Respectfully submitted, Date: November 20, 2007 SMIGEL, ANDERSON & SACKS, LLP By Peter M. Goo Esquire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff -i,•_ VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Plaintiff in the above-captioned matter, certify that I this day served a copy of the foregoing Praecipe upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Michael D. Reed, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Date: November 20, 2007 SMIGEL, ANDERSON & SACKS, LLP By_ MIM?.?Go Pet , Esquire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff 7 t:.. L l ? VARISH CONSTRUCTION, INC. Plaintiff V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., : Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT I. PRELIMINARY OBJECTIONS OF DEFENDANT THE COMMONS AT PARKER SPRINGS, INC. A. Demurrer. 1. The Complaint filed by Varish Construction, Inc. (hereinafter "Varish") in this action alleges that Defendants The Commons at Parker Springs, Inc. (hereinafter "CPS") and K&I Contractors, Inc. (hereinafter "K&P") entered into a contract with Varish and purports to attach and incorporate by reference a copy of that contract as Exhibit "A" to the Complaint. 2. The contract attached as Exhibit "A" makes no reference to K&I and does not include K&I as a signatory. 3. Counts I, II and III of the Complaint allege breaches of contract, quantum meruit and unjust enrichment counts against both CPS and K&I despite the fact that K&I is never referenced in the contract attached as Exhibit "A" and is not a signatory to that contract. 4. Thus, Counts I, II and III are legally deficient as to both Defendants CPS and K&I. 5. Paragraph 18 of Plaintiff's Complaint states that a balance due of $149,340.80 of the contract price remains due, owing and unpaid by Defendants CPS and K&I. 6. The contract includes, as an exhibit, a bid proposal submitted by Varish to CPS. 7. The bid proposal submitted by Varish to CPS included a line item at Part III, Line 14 for "Lift Station" at a price of $195,600.00 which apparently represented the cost to acquire and install a sanitary pump on the project. 8. Although Varish never installed the sanitary pump and never invoiced either CPS or K&I for the sanitary pump, the price for the sanitary pump is now included in Varish's alleged damages in Count I of the Complaint. 9. In addition, Count I includes a request for damages characterized as lost profits in the sum of $150,000.00, without any explanation as to how such alleged lost profits would in any way be additional to the contract price, since the contract price presumably included an anticipated profit to Varish. 10. Varish's Complaint contains a demand in Counts I, II and III for attorneys' fees, without setting forth any basis in either the contract or pursuant to any statute which would entitle Varish to recover its attorneys fees in this matter. 11. Thus, Count I of the Complaint is legally insufficient with respect to the statement of damages as to both Defendants CPS and K&I. WHEREFORE, Defendant The Commons at Parker Springs, Inc. respectfully requests this Honorable Court to dismiss Counts I, II and III of Plaintiff s Complaint for legal insufficiency pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure. 2 B. Misioinder of a Cause of Action. 12. The averments set forth in paragraphs 1 through 11 above are incorporated herein by reference as if fully set forth. 13. Counts I, II and III of Varish's Complaint constitute a misjoinder of a cause of action by reason of their joinder of Defendant K&I in counts arising from a contract in which K&I is never referenced and was not a signatory. WHEREFORE, Defendant The Commons at Parker Springs, Inc. respectfully request this Honorable Court to dismiss Counts I, II and III of the Complaint for misjoinder of a cause of action pursuant to Rule 1028(a)(5) of the Pennsylvania Rules of Civil Procedure. C. Insufficient Specificity. 14. The averments contained in Paragraphs 1 through 13 above are incorporated herein by reference as if fully set forth. 15. In the alternative to the foregoing, if Counts I, II and III are not dismissed, Defendant CPS is entitled to a more specific pleading with respect to the basis for the damages alleged for the sanitary pump and for "lost profits," as well as the claim for attorneys' fees. WHEREFORE, Defendant The Commons at Parker Springs, Inc. respectfully request this Honorable Court to order Plaintiff to file a more specific pleading with respect to its alleged damages for the sanitary pump, lost profits and attorneys' fees. 3 II. PRELIMINARY OBJECTIONS ON BEHALF OF DEFENDANT K&I CONTRACTORS, INC. A. Demurrer. 16. The averments contained in paragraphs 1 through 15 above are incorporated herein by reference as if fully set forth. 17. Count I of the Complaint purports to state a cause of action for breach of contract against Defendant K&I, notwithstanding the fact that K&I is not a signatory to the subject contract and is not even referenced therein. 18. Count II of the Complaint purports to state a cause of action in quantum meruit against Defendant K&I. 19. Count III of Varish's Complaint purports to state a cause of action for unjust enrichment against Defendant K&I. 20. Both Counts II and III depend upon Varish's allegation that K&I improperly retained the benefits of Varish's work without payment for such work, despite the fact that Defendant K&I was not the owner of the project and was no signatory to any contract with Varish. 21. Accordingly, there can be no legitimate basis for any allegation that Defendant K&I retained any benefit by virtue of the work allegedly performed by Varish on the project. 22. Varish's Complaint contains a demand in Counts I, II and III for attorneys' fees, without setting forth any basis in either the contract or pursuant to any statute which would entitle Varish to recover its attorneys fees in this matter. 4 WHEREFORE, Defendant K&I Contractors, Inc. respectfully request this Honorable Court to dismiss Counts I, II and III of the Complaint for legal insufficiency pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure. B. Misioinder of a Cause of Action. 23. The averments contained in paragraphs 1 through 22 above are incorporated herein by reference as if fully set forth. WHEREFORE, Defendant K&I respectfully request this Honorable Court to dismiss Counts I, II and III of the Complaint for misjoinder of a cause of action pursuant to Rule 1028(a)(5) of the Pennsylvania Rules of Civil Procedure. C. Insufficient Specificity. 24. The averments contained in Paragraphs 1 through 23 above are incorporated herein by reference as if fully set forth. 25. In the alternative to the foregoing, if Counts I, II and III are not dismissed, Defendant K&I is entitled to a more specific pleading with respect to the basis for the damages alleged for the sanitary pump, "lost profits," and attorneys' fees. WHEREFORE, Defendant K&I Contractors, Inc. respectfully request this Honorable Court to order Plaintiff to file a more specific pleading with respect to its alleged damages for the sanitary pump, lost profits and attorneys' fees. III. PRELIMINARY OBJECTIONS OF DEFENDANT PSI PUMPING SOLUTIONS, INC. A. Demurrer. 26. Count IV of Varish's Complaint purports to set forth a cause of action for tortious interference with the contract against Defendant PSI Pumping Solutions, Inc. (hereinafter "PSI"). 27. At paragraph 45 of Varish's Complaint, Varish alleges "based upon information and belief' that PSI contacted Parker Springs and offered to install the pump station themselves knowing that Varish already had a construction contract with Parker Springs which included, in part, the installation of the pump station. 28. No where in its Complaint does Varish identify the basis of its "information and belief' as to the alleged actions of PSI. 29. In order to prove tortious interference with the contract, Varish must prove with particularity how PSI intentionally interfered with Varish's contract with CPS, yet Varish has failed to identify any facts upon which it bases its conclusory allegation. 30. Varish has included claims for punitive damages and attorneys' fees at paragraph 49 of its Complaint without stating any basis upon which it would be entitled to such damages. 31. Varish has failed to include any formal prayer for relief against Defendant PSI; rather, the prayer for relief names (presumably erroneously) Defendants CPS and K&I. WHEREFORE, Defendant PSI Pumping Solutions, Inc. respectfully requests this Honorable Court to dismiss Count IV for legal insufficiency pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure. 6 B. Insufficient Suecificity. 32. The averments contained in paragraphs 26 through 31 above are incorporated herein by reference as if fully set forth. 33. In the alternative to the foregoing, Defendant PSI is entitled to a more specific pleading with respect to the basis for the allegation of intentional interference with contract and the alleged basis for punitive damages and atttorneys' fees. WHEREFORE, Defendant PSI Pumping Solutions, Inc. respectfully requests this Honorable Court to order Plaintiff to file a more specific Complaint setting forth the factual basis for its allegation of intentional interference with contract and its alleged basis for punitive damages and attorneys' fees. Respectfully submitted, METTE, EVANS & WOODSIDE BY: Michael D. Reed, Esquire Sup. Ct. I.D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendants DATE: November 29, 2007 7 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Peter M. Good, Esquire Darryl J. Liguori, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 METTE, EVANS & WOODSIDE BY: Michael D. Reed, Esquire Sup. Ct. I.D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendants DATE: November 29, 2007 8 483506v1 ? ?, _? --.a ' Y? ? 1. yi ?? {? ?? ,l .. S'` Y Y' . ?w? . ?:a ( .?3 ? ? T? , f,l )??? _ -'1 .. ?-. _... ? `.i.I "? SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-06274 P COMMONWEALTH OF PENNSYLVANIA: ` COUNTY OF CUMBERLAND VARISH CONSTRUCTION INC VS COMMONS AT PARKER SPRINGS 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 to wit: COMMONS AT PARKER SPRINGS INC THE but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LEHIGH County, Pennsylvania, to serve the within COMPLAINT & NOTICE On December 5th , 2007 this office was in receipt of the attached return from LEHIGH Sheriff's Costs: So an s:?r Docketing 18.00 Out of County 9.00 Surcharge 10.00 /R.Th as ine Dep Lehigh County 43.00 of Cumberland County Postage 3.08 8 3 . 0 8 12/05/2007 SMIGEL ANDERSON SACKS Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-06274 P COMMONWEALTH OF PENNSYLVANIA: ` COUNTY OF CUMBERLAND VARISH CONSTRUCTION INC VS COMMONS AT PARKER SPRINGS 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 to wit: K&I CONTRACTORS INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LEHIGH County, Pennsylvania, to serve the within COMPLAINT & NOTICE On December 5th , 2007 this office was in receipt of the attached return from LEHIGH Sheriff's Costs: So a e Docketing 6.00 Out of County .00 Surcharge 10.00 homas Kline .00 riff of Cumberland County .00 16.00 12/05/2007 SMIGLE ANDERSON SACKS Sworn and subscribe to before me this day of , A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-06274 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND VARISH CONSTRUCTION INC VS COMMONS AT PARKER SPRINGS 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 , to wit: PSI PLUMBING SOLUTIONS but was unable to locate Them deputized the sheriff of ADAMS in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On December 5th , 2007 , this office was in receipt of the attached return from ADAMS Sheriff's Costs: So Docketing 6.00 Out of County 9.00 Surcharge 10.00 R Dep Adams County 30.00 Sh 12/05/2007 / / SMIGEL ANDERSON SACKS r Sworn and subscribe to before me Postage 1.65 / .56.65 this day of Komas Kline iff of Cumberland County A. D. In The Court of Common Pleas of Cumberland County, Varish Construction Inc vs. The Carmons at Parker Springs Inc et al 6-7- id s. )-/ I5? Pennsylvania SERVE: The Commons at Parker Springs Inc No. 07-6274 civil Now, October 30, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Lehigh County to execute this Writ, this deputation being made at the request and risk of the Plainti: f Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, , 20 , at o'clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers: Sworn and subscribed before me this day of , 20 Sheriff of COSTS SERVICg MILEAgE AFFIDAVIT County, PA t_: L.; t=',:? , !_. ._ 7 t. ,... t ;-, ('_". #_., i.. ! )?". i yy??• __' ' :•i 7"i ... l..i.:"!; :: . S:i 1 ? _. wAID a v { U; '4 , j C' {.. ;..r , t! f . .....: j,.... ,..._ _ .r y.:f... (A I RIE ? arc SDI 3j?- ,: E. n 5 Q 0 `I?a 4 ?. t,n ir:fr_;?..;..,? !;!._ ..?.._.3..{.:f 'i.:-, -, ._i i_t_. _ i•c:. 1?.!-',. k`.1?:{#i-'t\;.. =1??. ....t-?t7?' ...''.1,?,!ti'1'`:I I!(`Cl:.`..,_. 1::. .... ': r i ., .... -,-- _.._......__..._...«__._...._....._-...__......._.,_-_.._.........__.._..__-......_.__..__-.._.-_..+..,._..._._...._ ...................._....__._............_.:....._.._......._.._........_..._.__•-_...........v.........-... ..... .............. _.._..-.......... ..... 7' i .1 .71 I }('•'i L I-,,i'r...'f-;.. _ - . r# ..?? 1. E ? ,.. r _._._._._.......__._..._._.._._...__._...._,._....-.__._,_......._............ _ ._ - a? tld?? F _._..._......_._._}.?..._p..._. r .............. ....._..•...._...._..._............._....................._..._.._.._..._._._._.....,.... In The Court of Common Pleas of Cumberland County, Pennsylvania Varish Construction Inc VS. The Ccnmons at Parker Springs Inc et al SERVE: K&I Contractors Inc. No. 07-6274 civil Now, October 30, 2007 hereby deputize the Sheriff of I, SHERIFF OF CUMBERLAND COUNTY, PA, do Lehigh County to execute this Writ, this deputation being made at the request and risk of the Plaint?ff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Servilee Now, , 20 , at o'clock M. served the within { upon at a and made known to the contents thereof. Sworn and subscribed before me this day of , 20 AFFIDAVIT by handing to copy of the original So answers, Sheriff of COSTS SERVICV _ MILEAGE County, PA ? o SHERIFF OFFIFIF COURT HOUSE - 5TH 94 HAMILTIDN ST REETS 455 W HAMILTON S11' ROOM 106 i''1 t ,.... L::. N} t.! A,1 if PA 181 01-1614 i_ "..., F -T .i. 1\1 T.k O{.. #v 2007-CV-5921 V `3 CASE: ._.. t !:_. ?...: t_t11°j,_.tl ?' T ... AR K E Y+' "P R 1 1 i.F f._ A ! Ii::;r 25-Nov-254' WRIT ,. i_:t.s'r":' ,._.,':li.!%%!!• .EN' I_.:T 1.F1:.. lr iC_i'ff.*)' AND NOTICE r ; ii 801 1 .? : !'.. ' ' P t-`, r°': 7 i,s. C T t ? •`.; t , 1810`,-';' ----- -- ---- ----------- ------------ RETURN -------------- OF SERVICE ----------- -------- ------------------ w ,...: RELATIONSHIP TO D1.... s.... 1.. tr. :' J 4. LOCATION CT SERVICE! __...__.__....._....._.._.._.__..._........__._...._._......._._...._.____.____..T._ ?._._.__?-..__./_a!? a- !_._._......_. 1..._..._.__.?.._._.....__.?,?//?N 1+. ...................... _-..._...._............ ._._..__.....__..__..._..._... S. UNABLE TO UOCATE.., '- { F:i OF" ... ATTEMPTS LOCATE DEFENDANT + 1'+!_.?i :'j C..... 1.+ AT LAST KNOWN ADDRESS- 1. n 5. DATE & 2. DATE & TIME 4. DATE & TIME 6. DATE & TIME 1 HEREBY ACCEPT SERVICE OF THE LEGAL PROCESS AS 9UTLINED ON THE FRONT OF THi'.-E DOCUMENT. I S ACCEPTED ON ", H %'t i_: THE LISTED DEFENDANT(S) t !'-t .l. .-} SERVICE caC._r•?.1._, OF k-_... r..I. ate: .C.• I F I!'3 AUTHORIZED "("7 __0,...? '..? 1 HEREBY '!"'-+...y...Y THAT PRINTEF NAME OF AUTHORIZED AGENT DATE ?l . ?, ? , I.?. NAME SHERIFF- SO -!•. OF F DEPUTY SIGNATURE OF AUTHORIZED AGENT TI ME_ " _...__..._._......_,..._.........._.... ._. r i .... ...... _....____.......... ..__....._._...... ,.._..._.._. _.._._..... _............... ....._...._ ."-__......._....._......_......._ ._........_........_._ ......... SHERIFF OF LEHIGH COUNTY In The Court of Common Pleas of Cumberland County, Pennsylvania Varish Construction Inc vs. The Canmons at Parker Springs Inc et al SERVE: PSI Plumbing Solutions Inc No. 07-6274 civil Now, October 30, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do. hereby deputize the Sheriff of Adams County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, November 1 , 2007 , at 10:20 o'clock A. M. served the within Complaint in Civil Action upon PSI Pumping Solutions, Inc. at 134 Gun Club Road, York Springs, PA by handing to Kathy Aiello, owner a true & attested copy of the original complaint and made known to Kathy Aiello the contents thereof. So answers, Sworn and subscribed before me this day of N/A , 20 De Weflf f a.A?r? W . riff of Adams County, PA COSTS SERVICE $18.00 MILEAGE 12.00 AFFIDAVIT $30.00 Pd. 11/6/07 FEK 11 S :Of V I E 100 LOU 0,11 s.t? SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center 4431 North Front Street, P Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire pgood@sasllp.com Darryl J. Liguori, Esquire dliguori@sasllp.com Attorneys for Plaintiff VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 07-6274 Civil Term : CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO COMPEL ARBITRATION WITH RESPECT TO CO- DEFENDANT THE COMMONS AT PARKER SPRINGS. INC. AND NOW COMES, Plaintiff Varish Construction, Inc., (hereinafter "Varish"), by and through its attorneys, Smigel, Anderson & Sacks, LLP, to file the following Motion to Compel Arbitration with respect to Co-Defendant The Commons at Parker Springs, Inc. (hereinafter "Parker Springs") and avers in support as follows: 1. Varish and Parker Springs entered into a Contract on June 21, 2006 to perform site work at a location in North Middletown Township, Cumberland County, Pennsylvania. A true and correct copy of the Contract is attached hereto as Exhibit "A." 2. Varish alleges that Parker Springs breached the Contract by failing to pay Varish for work performed at the job site in accordance with the terms of the Contract. 3. The Contract provides that "All disputes hereunder shall be resolved by binding arbitration in accordance with the rule of the American Arbitration Association." See Exhibit A at pg. 2. 4. Parker Springs is required to submit this dispute to binding arbitration pursuant to the terms of the Contract. 5. It is well settled Pennsylvania law that parties are free to draft their own contracts and that the courts will interpret those contracts and enforce them as created. Borough of Ambridge Water Authority v. Columbia, 328 A.2d 498, 500 (Pa. 1974). 6. Courts will enforce provisions that submit future disputes that "arise under the agreement to a tribunal other then a court." Id. "Contracts that provide for arbitration are valid, enforceable, and irrevocable ... and this is equally true of both common law arbitration and the arbitration provided [by statute]." Mendelson v. Shrager 248 A.2d 234, 235 (Pa. 1968). 7. Because there is a valid agreement for alternative dispute resolution in place, Varish is asking this Court to order that Parker Springs submit to arbitration. 8. Judge J. Wesley Oler, Jr. previously issued a Rule to Show Cause on Plaintiffs October 26, 2007 Motion for Entry upon the Property of Co-Defendant Parker Springs. No other Judge has ruled on any other issue in this matter. WHEREFORE, Plaintiff Varish Construction, Inc. respectfully requests that this Honorable Court grant it Motion and order that this dispute be submitted to binding arbitration pursuant to the rules of the American Arbitration Association. Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Date: r« d By: 0,/? l ? Peter M. Good, Esquire - ID # 64316 Darryl J. Liguori, Esquire - ID # 91715 River Chase Office Center, P Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff VERIFICATION The undersigned hereby verifies that he is the President of Varish Construction, Inc. in the foregoing action, that the facts set forth are true and correct to the best of my knowledge, information, and belief, and further states that false statements herein are made subject to he penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Date: Thomas E. Varish, President of Varish Construction, Inc. VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Plaintiff in the above-captioned matter, certify that I this day served a copy of the foregoing Plaintiffs Motion to Compel Arbitration against Co-Defendant The Commons at Parker Springs Inc upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Michael D. Reed, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendants SMIGEL, ANDERSON & SACKS, LLP Date: BY G'r?? 1 ?10 Peter M. Good, Esq ire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff -T7 X f," :rte SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center 4431 North Front Street, P Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire pgood@sasllp.com Darryl J. Liguori, Esquire dliguori@sasllp.com Attorneys for Plaintiff VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW COMES, Plaintiff Varish Construction, Inc., (hereinafter "Varish"), by and through its attorneys, Smigel, Anderson & Sacks, LLP, to file the following Response to Defendant's Preliminary Objections to Plaintiffs Complaint and avers in support as follows: 1. PRELIMINARY OBJECTIONS OF DEFENDANT THE COMMONS AT PARKER SPRINGS, INC. A. Demurrer. 1. Admitted in part and denied in part. It is admitted that Varish filed a Complaint against The Commons at Parker Springs, Inc. (hereinafter "Parker Springs"), K&I Contractors, Inc. (hereinafter "K&I"), and PSI Pumping Solutions, Inc. (hereinafter "PSI"). The Complaint alleges that Parker Springs entered into a written Contract with Varish that was attached to the Complaint. Thereafter, Parker Springs hired K&I as their agents to construct various buildings at the job site. K&I then contracted with Varish to perform various additional work. See Complaint at Ex. B. At all times, K&I was the authorized agent of Parker Springs and authorized to act on their behalf. 2. Denied. The document Defendants reference is a writing which speaks for itself, and therefore Defendants' summaries, conclusions, or characterizations made regarding that writing are specifically denied. 3. Denied. The document Defendants reference is a writing which speaks for itself, and therefore Defendants' summaries, conclusions, or characterizations made regarding that writing are specifically denied. 4. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 10. Denied. The Complaint Defendants reference is a writing which speaks for itself, and therefore Defendants' summaries, conclusions, or characterizations made regarding that writing are specifically denied. 11. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Plaintiff Varish Construction, Inc. respectfully requests that this Honorable Court overrule Defendants' Preliminary Objections to Plaintiffs Complaints and order Defendants to file an Answer within twenty (20) days thereafter. B. Misioinder of a Cause of Action. 12. This is an incorporation paragraph to which no responsive pleading is required. 13. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Plaintiff Varish Construction, Inc. respectfully requests that this Honorable Court overrule Defendants' Preliminary Objections to Plaintiffs Complaints and order Defendants to file an Answer within twenty (20) days thereafter. C. Insufficient Specificity. 14. This is an incorporation paragraph to which no responsive pleading is required. 15. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Plaintiff Varish Construction, Inc. respectfully requests that this Honorable Court overrule Defendants' Preliminary Objections to Plaintiffs Complaints and order Defendants to file an Answer within twenty (20) days thereafter. II. PRELIMINARY OBJECTIONS OF DEFENDANT K&I CONTRACTORS. INC. A. Demurrer. 16. This is an incorporation paragraph to which no responsive pleading is required. 17. Denied. The Complaint Defendants reference is a writing which speaks for itself, and therefore Defendants' summaries, conclusions, or characterizations made regarding that writing are specifically denied. 18. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 19. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 20. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 21. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 22. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Plaintiff Varish Construction, Inc. respectfully requests that this Honorable Court overrule Defendants' Preliminary Objections to Plaintiffs Complaints and order Defendants to file an Answer within twenty (20) days thereafter. B. Misioinder of a Cause of Action. 23. This is an incorporation paragraph to which no responsive pleading is required. WHEREFORE, Plaintiff Varish Construction, Inc. respectfully requests that this Honorable Court overrule Defendants' Preliminary Objections to Plaintiffs Complaints and order Defendants to file an Answer within twenty (20) days thereafter. C. Insufficient Specificity. 24. This is an incorporation paragraph to which no responsive pleading is required. 25. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Plaintiff Varish Construction, Inc. respectfully requests that this Honorable Court overrule Defendants' Preliminary Objections to Plaintiff s Complaints and order Defendants to file an Answer within twenty (20) days thereafter. III. PRELIMINARY OBJECTIONS OF DEFENDANT PSI PUMPING SOLUTIONS, INC. A. Demurrer. 26. This is an incorporation paragraph to which no responsive pleading is required. 27. Denied. The Complaint Defendants reference is a writing which speaks for itself, and therefore Defendants' summaries, conclusions, or characterizations made regarding that writing are specifically denied. 28. Denied. Defendant PSI knowingly interfered with Varish's contract with Parker Springs by negotiating its own contract directly with Parker Springs to install a sanitary pump even though Varish's existing contract with Parker Springs including the installation of the PUMp. 29. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 30. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 31. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Plaintiff Varish Construction, Inc. respectfully requests that this Honorable Court overrule Defendants' Preliminary Objections to Plaintiffs Complaints and order Defendants to file an Answer within twenty (20) days thereafter. C. Insufficient Specificity. 32. This is an incorporation paragraph to which no responsive pleading is required. 33. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Plaintiff Varish Construction, Inc. respectfully requests that this Honorable Court overrule Defendants' Preliminary Objections to Plaintiffs Complaints and order Defendants to file an Answer within twenty (20) days thereafter. Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Date: By. DOLaol Peter M. Good, Equire - ID # 64316 Darryl J. Liguori, Esquire - ID # 91715 River Chase Office Center, 3Td Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Plaintiff in the above-captioned matter, certify that I this day served a copy of the foregoing Plaintiffs to Defendant's Preliminary Objections to Plaintiffs Complaint upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Michael D. Reed, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendants Date: SMIGEL, ANDERSON & SACKS, LLP fd BY A*/ (C ((? Peter M. Good, squire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff :xj -i VARISH CONSTRUCTION, IN, C., Plaintiff V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 07-6274 CIVIL TERM ORDER OF COURT AND NOW, this 29 h day of February, 2008, upon consideration of Plaintiffs Motion To Compel Arbitration With Respect to Co-Defendant The Commons at Parker Springs, Inc., a Rule is hereby issued upon Defendants to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, /Peter M. Good, Esq. Darryl J. Liguori, Esq. River Chase Office Center 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 Attorneys for Plaintiff /Michael D. Reed, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendants J.'Wesley Oler, Jr., J. ?pres m??l?cl a?zq?os J? k C `,'d 6 Z 0 -: I j P -r I J, V k a! a VARISH CONSTRUCTION, INC. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants No. 07-6274 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' RESPONSE TO RULE TO SHOW CAUSE And now come Defendants, through their counsel, Mette, Evans & Woodside, P.C. and respond as follows to the Rule to Show Cause issued in connection with Plaintiff's Motion to Compel Arbitration, in support of which they aver as follows: Plaintiff initiated this action against all three Defendants, despite the fact that its only contract was with Defendant The Commons at Parker Springs, Inc. 2. Despite the fact that its contract with Defendant The Commons at Parker Springs, Inc. contained an arbitration clause, Plaintiff chose to initiate this action by the filing of a Complaint in the Court of Common Pleas of Cumberland County. Plaintiff's choice to file this claim with the Court rather than to file a demand for arbitration and to include two additional Defendants who are not parties to the contract has caused Defendants significant expenditure of time and legal fees to file Preliminary Objections and to undertake preparation for defense of the matters raised in Plaintiff s Complaint. 4. Plaintiff has waived any right to arbitration which may have existed under the contract by filing this matter with the Court and allowing it to proceed for several months while Defendants expended their time and attorneys fees to defend the action in Court. 5. Plaintiff should be estopped from invoking the arbitration clause due to its choice to file the action in the Court of Common Pleas with Cumberland County. 6. Because Defendants believe that Plaintiff has waived its right to arbitration, they respectfully request the opportunity to submit briefs on this issue and to have oral argument before the Court as the Court may direct. WHEREFORE, Defendants respectfully request this Court to provide an Order scheduling briefing and oral argument on the issue of Plaintiff's waiver of its right to arbitration, and Defendants further respectfully request that this Honorable Court deny Plaintiff's Motion to Compel Arbitration, and that the Court award reasonable attorneys fees to Defendants based on the necessity of their response to such a motion when Plaintiff had previously waived any right to arbitration which may have existed. Respectfully submitted, METTE, EVANS & WOODSI ';?? J-1 BY: ichael . Reed, Esquire Sup. Ct. I.D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorney for Defendants DATE: March 20, 2008 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Peter M. Good, Esquire Darryl J. Liguori, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 METTE, EVANS & WOODSIDE BY: x))L/Z Michael D. Reed, Esquire Sup. Ct. I.D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorney for Defendants DATE: March 20, 2008 490328v1 . -r= . ,-- .t ?. G7 .: . Y •r , i _? . ti? -^'? VARISH CONSTRUCTION, INC., Plaintiff V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 07-6274 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO COMPEL ARBITRATION WITH RESPECT TO CO-DEFENDANT THE COMMONS AT PARKER SPRINGS, INC. AND NOW, this 27th day of May, 2008, upon consideration of Plaintiff's Motion To Compel Arbitration with Respect to Co-Defendant the Commons at Parker Springs, Inc., an argument/hearing is scheduled for Friday, June 20, 2008, at 11:15 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BRIEFS on the issues which counsel perceive to exist in the case shall be submitted to the court at least five days prior to the hearing/argument. BY THE COURT, r' ter M. Good, Esq. Darryl J. Liguori, Esq. 3rd Floor River Chase Officer Center 4431 North Front Street Harrisburg, PA 17110-1778 Attorneys for Plaintiff Xichael D. Reed, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendants J. esley Oler, J' ., J a , ` =,-l ?.?.?? ,,, ? \? ?,- ? • ? ?.?? \t 1 SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street, 3`d Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire pgood@sasllp.com Darryl J. Liguori, Esquire dliguori@sasllp.com Attorneys for Defendant VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. PRAECIPE TO ATTACH AN EXHIBIT TO THE PROTHONOTARY: Please attach the following exhibit to the Complaint filed in this matter on October 26, 2007, as Exhibit E. Respectfully submitted, SMI EL, ANDERSON & SACKS, LLP Date: as D /'?4 ?)j Peter M. Good, Esquire ID#64316 Darryl J. Liguori, Esquire ID#91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant ?- hlb?? Y ?? • Mull - iDDEN LAW OF . CES 3015 COLLEGE HEIGHTS BLS'D., SUITE 206 • ALLE.NTO`NIN, PA 18104 PHONE 610-821-3009 • FAX 610-821-9925 e-mail: mcflaw@ptd.net Jamie Michael McFadden September 17, 2007 Varish Construction, Inc. 800 Bull Frog Rd. Gettysburg, PA 17325 Attn: Tom Varish Re: Commons at Parker Spring Subdivision Dear Mr. Varish: Robert C. McFadden Of Counsel The Contractor's Agreement entered by you on June 21, 2006 with respect to the installation of the site improvements in the above-referenced subdivision has not been completed in accordance with the terms of the Agreement. As a result of your failure to perform in accordance with the Agreement, and numerous complaints by the municipal authority, the owner of the subdivision has suffered and will continue to suffer substantial damages in completing the contracted work. In order to mitigate damages and have the contracted work completed as soon as possible, the owner intends to retain another contractor and is hereby notifying you not to come upon the contracted site or interfere with the performance of the contracted site, improvements by the owner or any other contractors. Very truly yours, Robert C. McFadden RCM/mli cc: The Commons at Parker Spring, Inc. VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Defendant in the above-captioned matter, certify that I this day served a copy of the foregoing Praecipe to Attach an Exhibit upon the person(s) indicated below by hand delivery, and addressed as follows: Michael D. Reed, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendants SMIGEL, ANDERSON & SACKS, LLP Date: Ile (a ? 4m/ Peter M. Good, Es uire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant C'd12 t off. i CD "4 VARISH CONSTRUCTION, INC., Plaintiff V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 07-6274 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO COMPEL ARBITRATION WITH RESPECT TO CO-DEFENDANT THE COMMONS AT PARKER SPRINGS, INC. AND NOW, this 23rd day of May, 2008, after careful consideration of Plaintiff's Motion To Compel Arbitration with Respect to Co-Defendant The Commons at Parker Springs, Inc., and following a hearing/argument on the matter on June 20, 2008, the motion is denied. XPeter M. Good, Esq. Darryl J. Liguori, Esq. 3rd Floor River Chase Officer Center 4431 North Front Street Harrisburg, PA 17110-1778 /Attorneys for Plaintiff ? Michael D. Reed, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendants (26piFS ??23?d8 BY THE COURT, 0, i .7' !, N EIM, E VARISH CONSTRUCTION, INC., Plaintiff V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-6274 CIVIL TERM ORDER OF COURT AND NOW, this 20th day of June, 2008, upon consideration of Plaintiff's Motion to Compel Arbitration With Respect to Co-Defendant The Commons at Parker Springs, Inc., and following a hearing/argument, the record with respect to this motion is closed and the matter is taken under advisement. By the Court, /Peter M. Good, Esquire Darryl J. Liguori, Esquire 3rd Floor River Chase Officer Center 4431 North Front Street Harrisburg, PA 17110-1778 For the Plaintiff ?/Michael D. Reed, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 For the Defendants pcb 0.optes ra,'LL h ? 4313' 4 I SMIGEL, ANDERSON & SACKS, L.L.P. Peter M. Good, Esquire River Chase Office Center pgood@sasllp.com 4431 North Front Street, 3rd Floor Darryl J. Liguori, Esquire Harrisburg, PA 17110-1778 dliguori@sasllp.com (717) 234-2401 Attorneys for Plaintiff VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. APPLICATION TO AMEND ORDER TO INCLUDE STATEMENT SPECIFIED IN 42 PA.C.S. 47028) AND NOW COMES, Plaintiff Varish Construction, Inc., (hereinafter "Varish"), by and through its attorneys, Smigel, Anderson & Sacks, LLP, to file the following Application to Amend Order to Include Statement Specified in 41 Pa. C.S. § 702(b) and avers in support as follows: 1. By order entered June 23, 2008, this Court denied the motion of Plaintiff Varish Construction, Inc. to compel arbitration with respect to Co-Defendant The Commons at Parker Springs, Inc. 2. This Court's order involves a controlling question of law as to which there is a substantial ground for difference of opinion, because as indicated in the parties' briefs and during argument, each party cites appellate case law in support of their respective positions. 3. An immediate appeal from this Court's order will substantially advance the termination of this case, in that an order of the Superior Court reversing this Court's order and granting Plaintiffs Motion to Compel Arbitration will terminate this case with respect to Co- Defendant The Commons at Parker Springs, Inc. and avoid the necessity for trial. 4. Pursuant to Pa.R.A.P. 1311, Plaintiff Varish Construction, Inc. may file a petition for permission to appeal from this Court's June 23, 2008 order only if this Court amends that order to include the statement specified in 42 Pa.C.S. §702(b) that the order "involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter." WHEREFORE, Plaintiff Varish Construction, Inc. respectfully requests this Court to amend its order of June 23, 2008, to include the statement specified by 42 Pa.C.S. §702(b). Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Date: July 3, 2008 By; Peter M. Good, Es uire - ID # 64316 Darryl J. Liguori, squire - ID # 91715 River Chase Office Center, 3'd Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff 2 . VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Plaintiff in the above-captioned matter, certify that I this day served a copy of the foregoing Plaintiffs Application to Amend Order to Include Statement Specified in 41 Pa C S § 702(b) upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Michael D. Reed, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendants SMIGEL, ANDERSON & SACKS, L.L.P. Date: July 3, 2008 By: Peter M. Good, Esquire - ID # 64316 Darryl J. Liguori, Esquire - ID # 91715 River Chase Office Center, 3'd Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff r.a t'?? ? ; ?- ; c ?'_ ?.' -.: ro ? ? s ? ? _:; ??? ? ? ? ? ? CY+ -.c VARISH CONSTRUCTION, INC., Plaintiff V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 07-6274 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO COMPEL ARBITRATION WITH RESPECT TO CO-DEFENDANT THE COMMONS AT PARKER SPRINGS, INC. AMENDED ORDER OF COURT AND NOW, this 8d' day of July, 2008, the prior order of court issued in the above matter on June 23, 2008, and incorrectly dated May 23, 2008, is hereby amended to reflect that the correct date of the order should be June 23, 2008. In all other respects, the prior order of court shall remain t he same. BY THE COURT, , TOW esley Oler, r., J. Peter M. Good, Esq. Darryl J. Liguori, Esq. 3'd Floor River Chase Officer Center 4431 North Front Street Harrisburg, PA 17110-1778 Attorneys for Plaintiff Michael D. Reed, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendants '7- 0 0/-d d VJfNVAWNN3d 99:6 Wig 6- r AW10,140 'ILOW Ali. 3oe4o-a3'W VARISH CONSTRUCTION, INC., Appellant V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-6274 CIVIL TERM ORDER OF COURT AND NOW, this 26`x' day of September, 2008, upon consideration of the Appeal filed in the above-captioned matter, Appellant is DIRECTED, pursuant to Pa. R.A.P. 1925(b), to file of record in this Court and to serve upon the undersigned judge a concise Statement of Matters Complained of on Appeal no later than 21 days after entry of this Order. Any issues not properly included in the statement timely filed and served pursuant to this order shall be deemed waived. BY THE COURT, 0,, Darryl J. Liguori, Esq. River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 Attorney for Appellant /Michael D. Reed, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Appellee J. ]Wesley Oler, .*., e.oP,Vs /ham.tl.£CL CAD =- _:i r- °? .. c 4! c9 ; I `-id 6Z d]S 90OZ etc '? C `; . 1 -31A ?0 IJ SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center 4431 North Front Street, 3`d Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire pgood@sasllp.com Darryl J. Liguori, Esquire dliguori@sasllp.com Attorneys for Plaintiff' VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED STATEMENT OF MATTERS COMPLAINED OF ON APPEAL AND NOW COMES, Plaintiff Varish Construction, Inc., (hereinafter "Varish"), by and through its attorneys, Smigel, Anderson & Sacks, LLP, to file the following Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P. 1925(b), and avers in support the following: 1. Plaintiff Varish Construction, Inc. asserts that its claims against Defendant The Commons at Parker Springs, Inc. should be submitted to arbitration pursuant to the terms of the parties' contract. 2. The parties entered into a contract on June 21, 2006 to perform site work at a location in North Middleton Township, Cumberland County, Pennsylvania. 3. The contract between the parties contains an arbitration provision on page 2 which provided that "All disputes hereunder shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association." 4. Varish initiated this litigation when it filed a Complaint on or about October 25, 2007 while simultaneously filing a Motion for Entry upon Property of a Person to inspect the job site under the control of the Commons at Parker Springs. 5. To date, the Commons at Parker Springs has engaged in no discovery and responded to the Complaint by filing Preliminary Objections which are still pending. 6. Varish will argue on appeal that it's breach of contract, unjust enrichment, and quantum meruit claims should have been submitted to arbitration pursuant to the terms of the parties' Contract and that its Motion to Compel Arbitration should have been granted. 7. Varish will also argue on appeal that it did not waive its' right to compel arbitration merely by simultaneously filing a Complaint and Motion for Entry upon the Property of a Person in this matter. A. Varish's breach of contract, unjust enrichment, and quantum meruit claims should be submitted to arbitration pursuant to the terms of the parties' Contract. 8. Not permitting arbitration in this case is contrary to established Pennsylvania law which states that parties are free to draft their own contracts; that the courts will interpret those contracts and enforce them as created; and that contracts that provide for arbitration are valid, enforceable and irrevocable. Mendelson v. Shrager 248 A.2d 234, 235 (Pa. 1968); Borough of Ambridge Water Authority v. Columbia, 328 A.2d 498, 500 (Pa. 1974). B. Varish did not waive the arbitration clause in the parties' Contract by filing a Complaint and a Motion for Entry upon the Property of a Person. 9. The Rules of the American Arbitration Association ("AAA"), which govern the parties' contract, provide that a judicial proceeding by a party relating to the subject matter of the arbitration does not waive a parties' right to arbitrate. 10. Furthermore, Pennsylvania law is clear that filing a Complaint does not automatically waive a party's right to arbitrate, particularly when no discovery was done. Keystone Tech. Group v. Kerr Group, Inc., 824 A.2d 1223, 1227 (Pa. Super. 2003). Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Date: October 14, 2008 By: A Peter M. Good, Esq ire - ID # 64316 Darryl J. Liguori, Esquire - ID # 91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 07-6274 Civil Term SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Plaintiff in the above-captioned matter, certify that I this day served a copy of the foregoing Plaintiffs Statement of Matters Complained of on Appeal upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Michael D. Reed, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendants The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 SMIGEL, ANDERSON & SACKS, L.L.P. Date: October 14, 2008 By: k wl_ Peter M. Good, Esquire - ID # 64316 Darryl J. Liguori, Esquire - ID # 91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff C'3 ^? c ?atr; C/I ry., Cm ?y C': y . t..+ A VARISH CONSTRUCTION, INC., Plaintiff V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-6274 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., December 5, 2008. In this construction case, Plaintiff Varish Construction, Inc. ("Varish") appeals a June 23, 2008, order of this court denying its motion to compel arbitration.' Varish initiated the present action by the filing of a complaint in the Court of Common Pleas of Cumberland County on October 26, 2007, against three defendants - the Commons at Parker Springs ("Commons"), K&I Contractors, Inc. ("K&I"), and PSI Pumping Solutions, Inc. ("PSI"). In conjunction with the action, Varish also filed a motion for entry upon property of Defendant Commons, and a Rule was issued by the court pursuant to the motion. The defendants in the matter jointly filed preliminary objections to Varish's complaint. Varish filed a response to the preliminary objections and also filed a ' Plaintiff's present appeal from this court's order of June 23, 2008, was initiated in the Superior Court on August 4, 2008, as a petition for review of this court's failure to amend the order, pursuant to Section 702(b) of the Judicial Code, to indicate that it involved a substantial ground for difference of opinion. See Petition for Permission To Appeal, filed August 4, 2008, No. 28 MDM 2008 (Pennsylvania Superior Court). Inasmuch as the June 23, 2008, order was appealable as of right pursuant to Section 7320(a)(1) of the Judicial Code, the Superior Court issued an order indicating that the petition for review would be treated as a notice of appeal. Order of Court, September 19, 2008, No. 28 MDM 2008 (Pennsylvania OP; :Il wv s- 330z ?cf? ?. Jo motion to compel arbitration with respect to Defendant Commons only. After a hearing on the motion to compel arbitration, the court issued an order denying the motion. The bases for the appeal from this order by Varish have been expressed in its statement of matters complained of on appeal as follows: 1. Plaintiff Varish Construction, Inc. asserts that its claims against Defendant The Commons at Parker Springs, Inc. should be submitted to arbitration pursuant to the terms of the parties' contract. 2. The parties entered into a contract on June 21, 2006 to perform site work at a location in North Middleton Township, Cumberland County, Pennsylvania. 3. The contract between the parties contains an arbitration provision on page 2 which provided that "All disputes hereunder shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association." 4. Varish initiated this litigation when it filed a Complaint on or about October 25, 2007 while simultaneously filing a Motion for Entry upon Property of a Person to inspect the job site under the control of the Commons at Parker Springs. 5. To date, the Commons at Parker Springs has engaged in no discovery and responded to the Complaint by filing Preliminary Objections which are still pending. 6. Varish will argue on appeal that it's breach of contract, unjust enrichment, and quantum meruit claims should have been submitted to arbitration pursuant to the terms of the parties' Contract and that its Motion to Compel Arbitration should have been granted. 7. Varish will also argue on appeal that it did not waive its' right to compel arbitration merely by simultaneously filing a Complaint and Motion for Entry upon the Property of a Person in this matter. A. Varish's breach of contract, unjust enrichment, and quantum meruit claims should be submitted to arbitration pursuant to the terms of the parties' Contract. Superior Court). The timeliness of the appeal under these circumstances is beyond the scope of this opinion. 2 8. Not permitting arbitration in this case is contrary to established Pennsylvania law which states that parties are free to draft their own contracts; that the courts will interpret those contracts and enforce them as created; and that contracts that provide for arbitration are valid, enforceable and irrevocable. Mendelson v. Shrager, 248 A.2d 234, 235 (Pa. 1968); Borough of Ambridge Water Authority v. Columbia, 328 A.2d 498, 500 (Pa. 1974). B. Varish did not waive the arbitration clause in the parties' Contract by filing a Complaint and a Motion for Entry upon the Property of a Person. 9. The Rules of the American Arbitration Association ("AAA") which govern the parties' contract, provide that a judicial proceeding by a party relating to the subject matter of the arbitration does not waive a parties' right to arbitrate. 10. Furthermore, Pennsylvania law is clear that filing a Complaint does not automatically waive a party's right to arbitrate, particularly when no discovery was done. Keystone Tech. Group v. Kerr Group, Inc., 825 A.2d 1223, 1227 (Pa. Super. 2003). This opinion in support of the order denying Varish's motion to compel arbitration is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS The basic allegations of Plaintiff's complaint may be summarized as follows: Defendant Commons, as the owner of a construction project, retained Varish to perform site work at a location in North Middleton Township, Cumberland County, Pennsylvania.2 The parties entered into a written contract on June 21, 2006, whereby Commons agreed to pay Varish $650,545.00 in exchange for the timely performance of the site preparation.3 In addition to the work provided for under the terms of the contract, 2 Plaintiff Varish Construction, Inc. Complaint, ¶7, filed October 26, 2007 (hereinafter Complaint). 3 Complaint, ¶¶7-8. 3 Varish was requested to perform additional work at the site by both Commons and K&I, the contractor hired by Commons to construct the buildings at the location.4 The additional work performed by Varish was accounted for through written invoices with K&I.5 Pursuant to its contract with Commons, Varish contracted to purchase a sanitary pump for the location from PSI.6 However, before the pump was installed, Commons terminated the contract with Varish by a letter dated September 17, 20077 . Thereafter, PSI contacted Commons and offered to install the pump station itself.8 The contract between Varish and Commons included the following provision: "All disputes hereunder shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association."9 Despite this provision, on October 26, 2007, Varish filed a complaint in the Court of Common Pleas of Cumberland County against three defendants - Commons, K&I and PSI. In its complaint, Varish asserted breach of contract, unjust enrichment and quantum meruit claims against Commons and K&I, and a tortious interference with contract claim against PSI. 10 The first three claims were brought against Commons and K&I jointly;" the fourth claim was brought against 4 Complaint, ¶9. 5 Complaint, ¶9. 6 Complaint, ¶14. Complaint, ¶16. s Complaint, ¶45. 9 See Exhibit A as attached to Complaint. 10 Complaint, ¶¶23-49. 11 See Complaint, ¶¶24-29 ("Varish and [Commons] and K&I Contractors entered into the Contract whereby (a) Varish agreed to perform the work for the [Commons] site; and (b) [Commons] and K&I Contractors agreed to pay Varish for the work"), 31-37 ("Defendants requested Varish to perform additional excavation and site work at the [Commons] location at the direction and instruction of K&I 4 PSI alone, but directly related to the contract between Varish and Commons.12 Varish alleged that the total amount owed by Defendants, "calculated by, adding the unpaid invoices to the contract price, lost profits, as well as cost for materials purchased, and costs incurred to remove and store the materials," was $653,372.28.13 In paragraph five of its complaint, Varish asserted that the Court of Common Pleas of Cumberland County had jurisdiction over the parties and subject matter of the dispute. 14 The complaint did not reference the arbitration clause contained in the contract between Varish and Defendant Commons.ls Concurrently with the complaint, Varish filed a motion for entry upon property of a person. 16 Approximately one month later, on November 28, 2007, Varish filed a praecipe to withdraw the motion for entry. 17 On November 29, 2007, all three defendants jointly filed preliminary objections to Varish's complaint. 18 On December 14, 2007, Plaintiff filed a mechanics' lien claim in this court against Defendant Commons. 19 On Construction"), 39-41 ("Defendants would be unjustly enriched if they were permitted to retain the benefit from the work performed by Varish without paying the monies owed to Varish for said work.") 12 See Complaint, ¶¶43-48. " Complaint, ¶21. 14 Complaint, ¶5. " See Complaint. 16 Plaintiff's Motion for Entry upon Property of a Person, filed October 26, 2007. 17 Praecipe To Withdraw Plaintiffs Motion for Entry upon Property of a Person, filed November 28, 2007. 18 Defendant's Preliminary Objections to Plaintiff s Complaint, filed November 29, 2007. 19 See Mechanics' Lien Claim, No. 07-7500 Civil Term (Cumberland County), filed December 14, 2007. It appears that at least a portion of the amount of this lien relates to the contract at issue herein between Plaintiff and Commons. Id. 5 February 21, 2008, Varish filed a response to the preliminary objections.20 On the same day, Plaintiff also filed a motion to compel arbitration with respect to Defendant Commons only.21 On June 20, 2008, a hearing was held on Varish's motion to compel arbitration. At the hearing, Varish argued that it had not waived its right to arbitration by filing the complaint in this court. 22 Varish claimed that it filed the complaint primarily to gain entry onto the premises of Commons to conduct an inspection, 23 and also because it needed to file a complaint against the other two defendants, who were not parties to the contract and therefore not subject to the arbitration provision.24 Varish further argued that Commons had not been prejudiced by the initiation of the action in this court by Varish because the activity of Commons in the case had been limited to the filing of preliminary objections to the complaint, 25 and because Commons had not incurred additional costs inasmuch as all three defendants were being represented by the same law firm.26 20 Plaintiff's Response to Defendant's Preliminary Objections to Plaintiffs Complaint, filed February 21, 2008. 21 Plaintiffs Motion To Compel Arbitration with Respect to Co-Deft the Commons at Parker Springs, Inc., filed February 21, 2008. 22 N.T. 9. 23 N.T. 6. "N.T. 6, 9. 25 N.T. 9. 26 N.T. 10-11. 6 Commons asserted that Varish had availed itself of the judicial process and, in doing so, waived its right to arbitration.27 Commons argued further that Varish chose to file its complaint against all three defendants collectively, thereby waiving its right to arbitration, rather than filing a separate action against the two defendants not subject to the arbitration provision.28 Commons claimed that it had been prejudiced by the filing of the complaint as Commons was required to perform an investigation into the allegations contained in the complaint and to file preliminary objections.29 Furthermore, Commons argued that, if Varish's motion were granted, two actions arising out of the same set of facts would proceed in different forums, which could lead to inconsistent results.30 Following the hearing, the court issued an order denying the motion on June 23, 2008.31 DISCUSSION Statement of Law As a matter of public policy, Pennsylvania courts favor the settlement of disputes by arbitration; nevertheless, the "right to enforce an arbitration clause can be waived." Goral v. Fox Ridge, Inc., 453 Pa. Super. 316, 321, 683 A.2d 931, 933 (1996). A waiver of the right to proceed to arbitration may be expressly stated or it may be inferred from a "party's undisputed acts or language so inconsistent with a purpose to stand on the "N.T. 16. 2s N.T. 14. 29 N.T. 17. 30 N.T. 17. 31 Order of Court, dated June 23, 2008. 7 contract provisions as to leave no opportunity for a reasonable inference to the contrary."' Id. (quoting Samuel J. Marranca Gen. Contracting Co., Inc. v. Amerimar Cherry Hill Assocs. Ltd. Partnership, 416 Pa. Super. 45, 49, 610 A.2d 499, 501 (1992)). To establish whether or not the right to arbitration has been waived, a court must initially determine if the party, by virtue of its conduct, has availed itself of the judicial process. Moscatiello Construction Co. v. Pittsburgh Water and Sewer Authority, 167 Pa. Commw. 508, 513-14, 648 A.2d 1249, 1252 (1994), appeal denied, 540 Pa. 608, 655 A.2d 995 (1995). "Where a party has every opportunity to assert its right to arbitration, yet clearly indicates its preference for judicial proceedings through the party's participation, that party can no longer assert a right to arbitration. ,32 Castle Cheese, Inc. v. Sadler, 81 Pa. D. & C. 4't' 157, 159, 2007 WL 1797513 (Pa. Com. Pl.) (citing Samuel J. Marranca General Contracting Co. Inc. v. Amerimar Cherry Hill Assocs. Ltd. Partnership„ 416 Pa. Super. 45, 50-51, 610 A.2d 499, 501-502 (1992). Waiver "should not be lightly inferred and unless one's conduct has gained him an undue advantage or resulted in prejudice to another[,] he should not be held to have relinquished the right." Kwalick v. Bosacco, 329 Pa. Super. 235, 238, 478 A.2d 50, 52 (1984). Accordingly, the "mere filing of a complaint or answer without resulting 32 Generally it is the defendant who seeks to invoke and enforce an arbitration provision in a contract after having been sued by the plaintiff. Consequently, most of the cases dealing with waiver of the right to arbitration are ones in which the defendant has belatedly asserted the applicability of an arbitration clause after arguably availing himself to the judicial process. The present case is therefore atypical as Varish is both the plaintiff in the action and the party that now seeks to avoid the judicial process. But see Keystone Technology Group v. Kerr Group, Inc. 2003 PA Super. 199, 824 A.2d 1223; Kwalick v. Bosacco, 329 Pa. Super. 235, 238, 478 A.2d 50, 52 (1984). 8 prejudice to the objecting party will not justify a finding of a waiver of the right to arbitration." Id.; 33 see Oxford Valley Pets, Inc. v. Docktor Pet Centers, Inc., Pa. D. & C.3d 558, 561-62 (Phila. 1981). Thus, prejudice to the party asserting waiver must be demonstrated. Goral v. Fox Ridge, Inc., 453 Pa. Super. 316, 322, 683 A.2d 931, 933, (1996). Application of Law to Facts In the present case, where (a) Plaintiff Varish initiated the action against Defendant Commons, inter alia, without reference to the arbitration clause contained in their contract, (b) the action against Defendant Commons included claims for some work not covered by the contracts, (c) the action involved interconnected claims against several defendants which could result in inconsistent results if tried separately, (d) Plaintiff subjected Defendant Commons to a motion for court-ordered entry upon its property, (e) Plaintiff elicited preliminary objections from all Defendants, including Commons, (f) Plaintiff responded to the preliminary objections, (g) Plaintiff filed a mechanics' lien against Defendant Commons in this court, and (h) Plaintiff waited until four months after the commencement of the instant action to attempt to avoid the judicial process it had initiated against Defendant Commons, the court was of the view that Plaintiff, through its 33 In Kwalick, the Pennsylvania Superior Court stated that a plaintiff "is not automatically deemed to have waived his rights to proceed to binding arbitration as set forth in [the] contract" merely because he filed a complaint in the court of common pleas. Rather, the Court found that the "mere filing of a complaint or answer without resulting prejudice to the objecting party will not justify a finding of a waiver of the right to arbitration. The court concluded that the defendant had not shown any prejudice to him or undue advantage gained by the plaintiff, and, therefore, affirmed the trial court's order granting plaintiff's motion to compel arbitration. Kwalick v. Bosacco, 329 Pa. Super. 235, 238, 478 A.2d 50, 52 (1984) (emphasis added). 9 conduct, waived its right to pursue arbitration in the course of availing itself of the judicial process. For the foregoing reasons, the court issued the order denying Plaintiff's motion to compel arbitration of its claims against Defendant Commons. BY THE COURT, Wesley Oler,`Ir., J. ? Peter M. Good, Esquire Darryl J. Liguori, Esquire River Chase Office Center Third Floor 4431 North Front Street Harrisburg, PA 17110-1778 Attorneys for Plaintiff Michael D. Reed, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendant s 10 COMMONWEALTH OF PENNSYLVANIA Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary Superior Court of Pennsylvania Middle District September 19, 2008 100 Pine Street. Suite 410 I larrisbure. PA 17101 717-772-1294 www. supcrior. court.state.Pa. us Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: 1672 MDA 2008 V Varish Construction, Inc., Appellant V. The Commons at Parker Springs, Inc., K&I Contractors, Inc. and PSI Pumping Solutions, Inc. Dear Mr. Long: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the.information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, Karen Reid Bramblett, Esq. Prothonotary WJT Enclosure 2:48 PA Appeal Docket Sheet Docket Number: Page 1 of 3 September 19, 2008 1672 MDA 2008 Ad* Varish Construction, Inc., Appellant V. The Commons at Parker Springs, Inc., K&I Contractors, Inc. and PSI Pumping Solutions, Inc. Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: August 4, 2008 Awaiting Original Record Journal Number: Case Category: Civil CaseType: Civil Action Law Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Original Record Received Next Event Due Date: October 3, 2008 Next Event Type: Receive Docketing Statement Next Event Due Date: October 3, 2008 Superior Court of Pennsylvania 9/19/2008 3023 2:48 P.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 1672 MDA 2008 IOU Page 2 of 3 September 19, 2008 _ COUNSEL INFORMATION Appellant Varish Construction, Inc. Pro Se: Appoint Counsel Status: IFP Status: No Appellant Attorney Information: Attorney: Good, Peter M. Bar No.: 64316 Law Firm: Smigel, Anderson & Sacks, L.L.P. Address: 4431 N Front St 3rd FI Harrisburg, PA 17110 Phone No.: (717)234-2401 Fax No.: (717)234-3611 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Attorney: Liguori, Darryl J. Bar No.: 91715 Law Firm: Smigel, Anderson & Sacks, L.L.P. Address: 4431 N Front Street Harrisburg, PA 17110-1709 Phone No.: (717)234-2401 Fax No.: (717)234-3611 Receive Mail: No E-Mail Address: Receive E-Mail: No Appellee The Commons at Parker Springs, Inc., K&I Contractors, Inc. and PSI Pumping Solutions, Inc. Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information: Attorney: Reed, Michael D. Bar No.: 35193 Law Firm: Address: Mette Evans & Woodside 3401 North Front Street Harrisburg, PA 17110-0950 Phone No.: (717)232-5000 Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No FEE INFORMATION Paid Fee Date Fee Name Fee Amt Amount Receipt Number TRIAL COURVAGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil 9/19/2008 3023 2:48 P.M. Appeal Docket Sheet Docket Number: 1672 MDA 2008 Superior Court of Pennsylvania Page 3 of 3 Aft September 19, 2008 Date of Order Appealed From: June 23, 2008 Judicial District: 9 Date Documents Received: August 4, 2008 Date Notice of Appeal Filed: Order Type: Order Entered Judge: Oler, Jr., J. Wesley Judge OTN: Lower Court Docket No.: 07-6274 Civil Term ORIGINAL RECORD CONTENTS Original Record Item Date of Remand of Record: Filed Date ContenVDescription BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By August 4, 2008 Notice of Appeal Filed Appellant Varish Construction, Inc. September 19, 2008 Transferred Case Case transfered from Miscellaneous Docket Type (28 MDM 2008) to Appeal Docket Type (1672 MDA 2008) Superior Court September 19, 2008 Docketing Statement Exited (Civil) Middle District Filing Office Cross Court Actions Docket Number: 28 MDM 2008 Court Name: Superior Short Caption: Varish Construction, Inc. v. The Commons at Parker Case Status Type: Closed Disposition: Transfer Disposition Date: 9/19/2008 12:00:OOAN Petition Reargument/Reconsideration Filed Date: Reargument Disposition Reargument Disposition Date: Cross Court Action Type: Transfer to Appeal 9/19/2008 3023 i v) Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 C 10/1/99 1013-10/99 Superior Court of Pennsylvania Karen Reid Bramblett, Esq. Middle District Prothonotary James D. McCullough, Esq. Deputy Prothonotary September 19, 2008 RE: Varish Construction, Inc. v. The Commons at Parker No. 28 MDM 2008 Trial Court Docket Number: 07-6274 Civil Term Dear : 100 Pine Street. Suite 400 Flarrisbum, PA 17101 717-772-1294 www. superior. court. state. pa. us Enclosed please find a certified copy of an order dated September 19, 2008 entered in the above-captioned matter. Very truly yours, . C James D. McCullou , Esq. Deputy Prothonotary TP Enclosure cc: Michael D. Reed, Esq. The Honorable J. Wesley Oler, Jr. Judge Mr. Curtis R. Long Prothonotary No.: 28 MDM 2008 Carbon Copy Recipient List Addressed To: Peter M. Good, Esq. Smigel, Anderson & Sacks, L.L.P. 4431 N Front St 3rd Fl Harrisburg, PA 17110 Carbon Copied: Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Michael D. Reed, Esq. Mette Evans & Woodside 3401 North Front Street Harrisburg, PA 17110-0950 The Honorable J. Wesley Oler, Jr. Court of Common Pleas of Cumberland County Cumberland County Courthouse, One Courthouse Sq Carlisle, PA 17013 1013 -10/99 10/1/99 Varish Construction, Inc. V. The Commons at Parker Springs, Inc., et al. . IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County No. 07-6274 Civil Term) No. 28 MDM 2008t Filed: September 2008 ORDER As the underlying order is an appealable order, the petition for review shall be treated as a notice of appeal. See Pa.R.A.P. 1316; 311(a)(9); 42 Pa.C.S. § 7320(a)(1). The matter shall proceed as an appeal from the order of June 23, 2008. TRUE COPY FROM RECORD Attest: S E P 13 2008" "., ?- Vic La? Superior Court of PA - Middle District Per Curiam ?"t ? ;") ^' ?':Xa `3"f L.r"3 -;-i .,? ?' ? ? .? "?..? ? -. CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Varish Construction, Inc. VS. The Commons At Parker Springs, Inc., K & I Contractors, Inc., and PSI Pumping Solutions, Inc. 2007-6274 Civil 1672 MDA 2008 The documents comprising the record have been numbered from No.1 to 117, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 12/9/2008 . Cu s R. Lo thou ary Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland ss: In TESTIMONY WHEREOF, I have hereunto this 9th 1, CttrtiG R. rung , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Vanish C=Strur-tiGn Inc Plaintiff, and Tha Cgmmns At Rar-kar Springer , Inn- - Wit, a]. Defendant , as the same remains of record before the said Court at No. 07-6274 - Of -Givi Term, A. D. l9 . set my hand and affixed the seal of said Court day of December q A. D., 19-3t2(M Prothonotary 1, Edgar B_ Ra,Ylelz President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that QiT-f-J.R_ Tong , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of 0miter1 and in the Commonwealth of Pennsylvania, duly commissioned and ualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of ' icatur as elsewhere, and that the said record, certificate and attestation are in due form of law a made by t propel o is r. Commonwealth of Pennsylvania County of Cumberland ss: I P?esident Judge 1, Curtis R. Long , Prothonotary Of the Court of Common Pleas in and for the said County, do certify that the Honorable Edgar B_ Aa=1p)l by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this day of A. D. W-". Prothonotary Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CUMBERLAND in the Commonwealth of Pennsylvania 1672 M_bA 2008 to No. 2007-6274 Cimi 1 Term, 19 is contained the following: COPY OF A I*earance DOCKET ENTRY Varish Construction, Inc. Vs. The Cannons At Parker Springs, Inc., K & I Contractors, Inc., and PSI Ptmtping Solutions, Inc. **See Certified Copy of the Docket Entries** O S 0 m C CL A? D a n. y o v 69 ITI 0 C 1.11 ts7 k v n 0 v V! H n . x H O yy? ,l rh O 5 rt nG1? y n z z O ? V PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2007-06274 VARISH CONSTRUCTION INC (vs) COMMONS AT PARKER SPRINGS INC Reference No..: Filed........: 10/26/2007 Case Type.....: COMPLAINT d Time.........: 8:14 Ju gment..... 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: ------------ Case Comm t - Disposed Date. 0/00/0000 en s ------------ Higher Crt 1.: 1672 MDA2008 Higher Crt 2.: General Index Attorney Info VARISH CONSTRUCTION INC PLAINTIFF GOOD PETER M 800 BULLFROG ROAD GETTYSBURG ADAMS CO PA COMMONS AT PARKER SPRINGS INC DEFENDANT REED MICHAEL D THE 2159 OVERHILL ROAD ALLENTOWN PA 18103 K&I CONTRACTORS INC DEFENDANT REED MICHAEL D 801 E FAIRMONT STREET ALLENTOWN PA 18109 PSI PUMPING SOLUTIONS DEFENDANT REED MICHAEL D 134 GUN CLUB ROAD YORK SPRINGS ADAMS CO PA 17322 * Date Entries FIRST ENTRY 1-3- 10/26/2007 COMPLAINT - CIVIL ACTION FILED BY PETER M GOOD ESQ FOR PLFF ----------------------------------------------------- 10/26/2007 PLAINTIFF'S-MOTION-FOR-ENTRY-UPON-PROPERTY-OF- A - PERSON - FILED - BY ---- Y3 30 PETER M GOOD ESQ FOR PLFF 3&.3 7 11/07/2007 ORDER OF COURT - DATED 11-07-07 - IN RE: PLFFS MOTION FOR ENTRY ------------------------------------------------------------------- UPON PROPERTY OF A PERSON - A RULE IS HEREY ISSUED UPON DEFTS TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 5 DAYS OF SERVICE - BY J WESLEY OLER JR J - COPIES MAILED 11-07-07 ---------------------------------------------------------- l?y- 5 11/15/2007 DEFTSIPEMFOR EEVANSOF WOAPPE ODAIANCE - BY MICHAEL D REED ATTY FOR ------------------------------------------------------------------- '7 11/28/2007 PRAECIPE TO WITHDRAW PLAINTIFF MOTION FOR ENTRY UPON PROPERTY OF A PERSON - BY PETER M GOOD ATTY FOR PLFF ------------------------------- --------------------------- ljg11/29/2007 DEFEND ATTY PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY MICHAEL D FOR DEFT ------------------------------------------------------------------- S4 12/05/2007 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Out of County Case Type: COMPLAINT & NOTICE Ret Type.: Out of County Litigant.: COMMONS AT PARKER SPRINGS INC THE Address..: 2159 OVERHILL ROAD Cty/St/Zp: ALLENTOWN, PA 18103 County Nm: LEHIGH Ret Date.: 12/05/2007 10:00 AM Costs....: $83.08 Pd By: SMIGEL ANDERSON SACKS 12/05/2007 ------------------------------------------------------------------- 12/05/2007 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Out of County Case Type: COMPLAINT & NOTICE Ret Type.: Out of County Litigant.: K&I CONTRACTORS INC Address..: 801 E FAIRMONT STREET Cty/St/Zp: ALLENTOWN, PA 18109 County Nm: LEHIGH Ret Date.: 12/05/2007 10:00 AM Costs....: $16.00 Pd By: SMIGLE ANDERSON SACKS 12/05/2007 ------------------------------------------------------------------- _?(?12/05/2007 SHERIFF'S FILE RETURNED FILED. PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2007-06274 VARISH CONSTRUCTION INC (vs) COMMONS AT PARKER SPRINGS INC Reference No..: Filed........: 10/26/2007 Case Type..,..: COMPLAINT Time.........: 8:14 Judgment..... 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Hi hher Crt 1.: 1672 MDA2008 Higher Crt 2.: Case Type: COMPLAINT & NOTICE Ret Type.: Out of County Case Type: COMPLAINT & NOTICE Ret Type.: Out of County Litigant.: PSI PLUMBING SOLUTIONS Address..: 134,GUN CLUB ROAD Cty/St/Zp: YORK SPRINGS, PA 17322 County Nm: ADAMS Ret Date.: 12/05/2007 10:00 AM Costs....: $56.6 Pd By: SMIGEL ANDERSON SACKS 12/05/2007 ---------------------------------------- --------------------------- -7O 2/21/2008 THE COMMONS AT MOTION SPRINGS INC. - BY PETER M RESPECT GOOD TATTY CO-DEFT FOR PLFF ------------------------------------------------------------------- 2/21/2008 PLAINTIFF'S RESPONSE TO DEFTS PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY PETER M GOOD ATTY FOR PLFF 7 2/29/2006 ORDER OF COURT - 2/29/08 IN RE: PLFF'S MOTION TO COMPEL - ------------------------------------------------------------------ ARBITRATION WITH RESPECT TO CO-DEFT THE COMMONS AT PARKER SPRINGS INC A RULE IS HEREBY ISSUED UPON DEFTS TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 20 DAYS OF SERVICE - BY J WESLEY OLER JR J - COPIES MAILED 2/29/08 -------------------------------------------------------------- Q-?a 3/20/2008 DEFENDANT'S RESPONSE TO RULE TO SHOW CAUSE - BY MICHAEL D REED ------------------------------------------------------------------- g:3 5/27/2008 ORDER - 5/27/08 IN RE: PLFF'S MOTION TO COMPEL ARBITRATION WITH RESPECT TO CO DEFT THE COMMONS AT PARKER SPRINGS INC - AN ARGUMENT HEARING IS SCHEDULED FOR 6/20/08 AT 11:15 AM IN CR1 CUMBERLAND COUNTY COURTHOUSE - BRIEFS ON THE ISSUES WHICH COUNSEL PERCEIVE TO EXIST IN THE CASE SHALL BE SUBMITTED TO THE COURT AT LEAST 5 DAYS MPARIOR TO/THj08EARING/ARGUMENT - BY J WESLEY OLER JR J - COPIES LED ------------------------------------------------------------------- :FZI-5 7 6/20/2008 PRAECIPE TO ATTACH AN EXHIBIT - BY PETER M GOOD ATTY FOR DEFT ------------------------------------------------------------------- 6/23/2008 ORDER - 6/23/08 IN RE: PLFF'S MOTION TO COMPEL ARBITRATION WITH RESPECT TO CO DEFT THE COMMONS AT PARKER SPRINGS INC - AFTER CAREFUL CONSIDERATION OF PLFF'S MOTION TO COMPEL ARBITRATION WITH CO DEFT AREHEARINGSPECT ONE THECOMMATTERMONS J WESLEY OLER JR J - COPIES MAILED 6/23/08 ------------------------------------------------------------------- 6/30/2008 ORDER OF COURT - 6/20/08 - UPON CONSIDERATION OF PLFFS MOTION TO COMPEL ARBITRARION WITH RESPECT TO CO DEFT THE COMMONS AT PARKER SPRINGS INC AND FOLLOWING HEARING/ARGUMENT THE RECORD WITH RESPECT TO THIS MOTION IS CLOSED AND THE MATTER IS TAKEN UNDER ADVISEMENT BY J WESLEY OLER JR J - COPIES MAILED 6/30/08 7/08/2008 APPLICATION TO AMEND ORDER TO INCLUDE STATEMENT SPECIFIED IN 42 PA -------------- ---------------------------------------------------- CS 702B - BY PETER M GOOD ATTY FOR PLFF 0 3 7/09/2008 AMENDED ORDER OF COURT - 7/8/08 IN RE: PLFFS MOTION TO COMPEL ------------------------------------------------------------------- ARBITRATION WITH RESPECT TO CO DEFT THE COMMONS AT PARKER SPRINGS INC - THE PRIOR COURT ORDER ISSUED IN THE ABOVE MATTER ON 7/23/08 AND INCORRECTLY) DATED 5/23/08 IS HEREBY AMENDED TO REFLECT THAT THE CORRECT DATED OF THE ORDER SHOULD BE 6/23/08 IN ALL OTHER RESPECTS THE PRIOR ORDER OF COURT SHALL REMAIN THE SAME - BY J WESLEY OLER JR J - COPIES MAILED 7/9/08 ---------------------------------------------- --------------------- 9/22/2008 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO #1672 MDA 2008 ------------------------------------------------------------------- 9/22/2008 ORDER - IN THE SUPERIOR COURT OF PA - AS THE UNDERLYING ORDER IS AN APPEALABLE ORDER THE PETITION FOR REVIEW SHALL BE TREATED AS A NOTICE OF APPEAL SEE PA R A P 1316 311(A)(9) 42 PA CS 7320(A)(1) THE MATTER SHALL PROCEED AS AN APPEAL FROM THE ORDER OF JUNE 23, 2008 PER CURIAM ------------------------------------------------------------------- 1 9/29/2008 ORDER OF COURT - 9/26/08 - UPON CONSIDERATION OF THE APPEAL FILED IN THE ABOVE CAPTIONED MATTER - APPELLANT IS DIRECTED PURSUANT TO PYS511 Cumberland Civilu se CaPprintnotar Office 2007-06274 VARISH Y's CONSTRUCTION INC Page Case No..; (vs) INC COMMONS AT PARKER SPRINGS - ase Type COMPLAINT ment. Judg" " ' 10/26/2007 DidposedgDescd. OLER J WESLEY JR Timea ------------ ExecutionDate 0/00/0000 Case Comments ------- ;JurygpposTrial Dat.,e- OF Dg. PA RAP 1925B TO FILE i her Crt 2 THE UNDERSIGNED JUDGE A RECORD IN THIS COURTher Crt 1.• 1670200/0MDA20000 RvcE ON APPEAL NO H08 OMPL UPON H 21 DAYS AFTER ENTRY OFA HIS COMPLAINED OF ISSUES NOT o PROPERLY LATER THAN 21 INCLUDED IN THEER E T OF ATEMENT AND TO TIMELY SC FILED DY SERVED PURSUANT TO THIS ORDER SHALL BE DEEMED WAIVED - BY J WESLEY EMENT OF ---- A TTY ATTY FOR PLFFTTERS COMPLAINED OF ON APPEAL /07-?? 12/05/2008 ORDER--- --12-1- - -5/0-8- - - -IN - -R ----- - BY PETER M GOOD ---- WESLEY OLEh jRJE; OPINION PURSUANT TO PA OPI ES S MAILED 12/5/08 RAP 1925 --gY-J--'--- 12/09/2008 NOTICE OF DOCKET ENTRI // , LIGUORI ES MAILED TO -P - -- --------------- - --- Q AND MICHAEL D REED ES ETER M GOOD ESQ DARRYL J ************%**X?*Li* x*?r? ?s LAST EQ TRY * * Fees ******************* - - - - **Fees & *Debits Escrow ********* **********************Be Information ************ Dal ****ymts/Ad' ******* COMPLAINT Dal ********* TAX ON CMPLT **************** SETTLEMENT 55.050 0 55.00 ****** AUTOMATION 8.00 00 JCP FEE 5.00 8.00 •00 APPEAL HIGH CT 10.00 5.00 48.00 10.00 •00 48.00 .00 ********************** 126.50 ----------- ---------00 * 126.50 --- End ************************** •00 of Case Information ********* ******************** ***************************** ************ ******************* * ******* TRUE COPY d In Testimony whereof, ! ..cr' hand and the seal of said Court at Cark.d-, Fa. This .......%......... day of....:...... cam. ................. .... ?... . Prothonotary 46 ?% VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. No. 07-6274 Civil Term THE COMMONS AT PARKER CIVIL ACTION - LAW SPRINGS, INC., K&I CONTRACTORS, INC. and JURY TRIAL DEMANDED PSI PUMPING SOLUTIONS, INC., : Defendants PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendants, The Commons at Parker Springs, Inc., K&I Contractors, Inc., and PSI Pumping Solutions, Inc. in the above-referenced matter. Respectfully submitted, CALDWELL & KEARNS, P.C, By: .._let Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: January 21, 2009 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Peter M. Good, Esquire Darryl J. Liguori, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 CALDWELL & KEARNS, P. By: Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: January 21, 2009 143541 ?-- a -n . _. ?-_ °?"aw 4..?.? ?`% ? n ? µ; a a.- ? , ? , ` JS -""7 ? ?? ?... ? Y• YJ` ? ?_? ? i? .! y+ ! ? •'? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) Defendants' Preliminary Objections to Plaintiff's Complaint CAPTION OF CASE (entire caption must be stated in full) VARISH CONSTRUCTION, INC., vs. THE COMMONS AT PARKER SPRINGS, INC. K&I CONTRACTORS, INC. PSI PUMPING SOLUTIONS, INC. No 07-6274 Civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): 2. Identify all counsel who will argue cases: (a) for plaintiffs: Peter M. Good, Esquire (Name and Address) Smigel, Anderson & Sacks, LLP, 4431 N. Front St., 3rd Floor, Harrisburg, PA 17110 (b) for defendants: Michael D. Reed, Esquire (Name and Address) Caldwell & Kearns, 3631 N. Front St., Harrisburg, PA 17110 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Wednesday, February 17, 2010 Print your name Plaintiff Varish Construction, Inc. Date: (,u Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Peter M. Good, Esquire Cg/ 1 L 2309 NOV u0 P 3: L9 °?r; Karen Reid Bramblett, Esq. 6uper%or Court of Vennopfbania Pennsylvania Judicial Center Prothonotary Middle District P.O. Box 62435 Milan K. Mrkobrad, Esq. 601 Commonwealth Avenue, Suite 1600 Deputy Prothonotary Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court. state. pa. us CERTIFICATE OF REMITTAUREMAND OF RECORD TO: Mr. Long Prothonotary RE: Varish Construction, Inc. v. The Commons at Parker 1672 M DA 2008 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 07-6274 Civil Term Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part w/ envelope attached December 10, 2008 1 Remand/Remittal Date: 12/14/2009 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, el&0-46L? Milan K. Mrkobrad, Esq. Deputy Prothonotary /aas Enclosure cc: Peter M. Good, Esq. The Honorable J. Wesley Oler, Jr., Judge Michael D. Reed, Esq. _x Varish Construction, Inc. v. The Commons at Parker 1672 MDA 2008 Letter to: Mr. Curtis R. Long Acknowledgement of Certificate of RemittaltRemand of Record (to be returned): Signature Date Printed Name , i ;F FILED-0 F T I E c;,- ; a ,, nTAf?Y 2009DrC 16 P 1:59 J. A16044/09 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 VARISH CONSTRUCTION, INC., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant V. . THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC. AND PSI PUMPING SOLUTIONS, INC., NO. 1672 MDA 2008 Appellees Appeal from the Order entered June 23, 2008 In the Court of Common Pleas of Cumberland County Civil Division at No. 07-6274 Civil Term BEFORE: ALLEN, FREEDBERG AND CLELAND, JJ. MEMORANDUM: FILED: November 5, 2009 Appellant in this case, Varish Construction, Inc. (Varish), appeals the order of the Court of Common Pleas of Cumberland County denying its motion to compel arbitration. We conclude there is evidentiary support for the trial court's holding, and no abuse of discretion. We affirm. Varish and The Commons at Parker Springs (The Commons) entered into a construction contract (the Contract) on June 21, 2006 to perform site work such as excavation and paving. Disputes arose and, on September 17, 2007, counsel for The Commons cancelled the Contract with Varish. On October 26, 2007, Varish filed a complaint in the Court of Common Pleas of Cumberland County. The complaint named The Commons, K&I Contractors, Inc. and PSI Pumping Solutions, Inc. as defendants. In addition J. A16044/09 to the complaint, Varish filed a motion for entry upon the property of The Commons. On November 7, 2007, the trial court issued an order to show cause why Varish's requested relief should not be granted. Varish later withdrew the motion for entry upon property. Defendants jointly filed preliminary objections to Varish's complaint. On February 21, 2008, Varish filed a response to the preliminary objections. Also on February 21, 2008, Varish filed a motion to compel arbitration with respect to defendant, The Commons. On June 23, 2008, following a hearing on the matter, the trial court denied Varish's motion to compel arbitration with respect to The Commons. Varish appeals. Varish presents two questions for our review: 1) whether its claims against The Commons should be submitted to arbitration pursuant to the terms of the Contract, and 2) whether it waived the arbitration clause in the Contract when it filed a complaint and motion for entry upon property. Appellant's Brief at 4. "In reviewing the denial of a petition to compel arbitration, our review is limited to determining whether the trial court's findings are supported by substantial evidence and whether the trial court abused its discretion in denying the petition." Keystone Technology Group, lnc. v. Kerr Group, Inc., 824 A.2d 1223, 1227 (Pa. Super. 2003) (internal quotations and citation omitted). -2- 1. A16044/09 As the trial court correctly notes, Pennsylvania courts favor the settlement of disputes by arbitration, but this right can be waived. Trial Court Opinion (T.C.O.), 12/5/08, at 7 (citing Goral v. Fox Ridge, Inc., 683 A.2d 931 (Pa. Super. 1996)). '"Waiver is a voluntary and intentional abandonment or relinquishment of a known right. . . .[and] may be established by a party's express declaration or by a party's undisputed acts or language so inconsistent with a purpose to stand on the contract provisions as to leave no opportunity for a reasonable inference to the contrary." Samuel J. Marranca Gen. Contracting Co., Inc. v. Amerimar Cherry Hill Assoc. Ltd. P'ship, 610 A.2d 499, 501 (Pa. Super. 1992) (internal quotations omitted). "[A] waiver of a right to proceed to arbitration pursuant to the term of a contract providing for binding arbitration should not be lightly inferred and unless one's conduct has gained him an undue advantage or resulted in prejudice to another he should not be held to have relinquished the right." Kwalick v. Bosacco, 478 A.2d 50, 52 (Pa. Super. 1984). Accordingly, the "mere filing of a complaint or an answer without resulting prejudice to the objecting party will not justify a finding of waiver of the right to arbitration." Id. See Keystone, 824 A.2d 1223 (finding plaintiff did not waive its right to arbitration simply by initiating litigation). The trial court considered, in determining if Varish waived a right to arbitration, whether Varish had availed itself of the judicial process. See, -3- 1. A16044/09 e.g., Marranca (finding the party's actions in initiating litigation clearly indicated a preference for judicial proceedings). The trial court found Varish initiated the action without reference to the arbitration provision, filed a motion for court-ordered entry upon the property of The Commons, elicited preliminary objections from all defendants, filed a mechanics' lien in the court, and waited four months after commencing the action to file a motion to compel arbitration. T.C.O. at 9. The trial court also considered the prejudice to The Commons. It noted The Commons' argument "it had been prejudiced by the filing of the complaint as [it] was required to perform an investigation into the allegations contained in the complaint and to file preliminary objections." Id. at 7. Additionally, the trial court found the action involved interconnected claims that could lead to inconsistent results if tried separately. Id. at 9. In light of these findings of waiver of the right to arbitration by Varish and prejudice to The Commons, which findings are supported by the evidence, we cannot conclude the trial court abused its discretion in denying Varish's motion to compel arbitration. Judgment Entered. Order affirmed. Deputy Prothonotary November 5, 2009 Date: -4- FlUEID-,u"r1uw f1F ?! ?'TAY : 59 2009 DEC ! u P s 4 A VARISH CONSTRUCTION, INC., Plaintiff V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC. and PSI PUMPING SOLUTIONS, INC., : Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term c o CIVIL ACTION - LAW 7r JURY TRIAL DEMANDED ?• s PRAECIPE TO WITHDRAW FROM ARGUMENT LIST TO THE PROTHONOTARY: Kindly withdraw Defendants' Preliminary Objections in the above-captioned matter from the Argument List scheduled for February 17, 2010. Plaintiff's counsel has been consulted and concurs with this request. Respectfully submitted, CALDWELL & KEARNS, P By: ?-? Michael . Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: February 5, 2010 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 CALDWELL & KEARNS, P.C By: '?- '% Z Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: February 5, 2010 158934 CA/AL PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter Argument Court.) CAPTION OF CASE (entire caption must be stated in full) VARISH CONSTRUCTION, INC. vs. THE COMMONS AT PARKER SPRINGS, PSI PUMPING SOLUTIONS, INC. Signature Michael D. Reed, Esquire tV -c x' INC., K&I CONTRACTORS, INC. and N rod d r+-t c? rv Co No. 07-6274 Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Peter M. Good, Esquire, Smigel, Anderson & Sacks, LLP, River Chase Office Center (Name and Address) 4431 North Front Street, Third Floor, Harrisburg, PA 17110-1778 (b) for defendants: Michael D. Reed, Esquire, Caldwell & Kearns (Name and Address) 3631 North Front Street, Harrisburg, PA 17110 3. 1 will notify all parties in w' g withi two days that this case has been listed for argument. rit / 4. Argument Court Date: March 31 2010 fn F7i 17 Print your name Defendants jO Date:C2Z Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. VARISH CONSTRUCTION, INC., PLAINTIFF V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC. and PSI PUMPING SOLUTIONS, INC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 07-6274 CIVIL IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE OLER, J. GUIDO, J. AND EBERT, J ORDER OF COURT AND NOW, this 9th day of April, 2010, upon consideration of the Defendants' Preliminary Objections to Plaintiff's Complaint, the briefs filed by the parties and after oral argument held on March 31, 2010, IT IS HEREBY ORDERED AND DIRECTED that the Defendants' Preliminary Objections are DENIED. Defendant is afforded a period of 20 days from the date of this Order within which to file an Answer to Plaintiff's complaint. By the Court, ' Peter M. Good, Esquire Attorney for Plaintiff /chael D. Reed, Esquire Attorney for Defendants bas LJ frta L6C n f _Z d W (j'1 Fi 171 t7l , t_ 7. -. '17 AJ VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER CIVIL ACTION - LAW SPRINGS, INC., K&I CONTRACTORS, INC. and JURY TRIAL DEMANDED PSI PUMPING SOLUTIONS, INC., : Defendants C _ C! -- f l E7 Z7 i'il `11 NOTICE TO PLEAD rv =- TO: Peter M. Good, Esquire rr, Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 Your are hereby notified to file a written response to the enclosed New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. CALDWELL & KEARNS, P.C. By. ichael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: April 29, 2010 VARISH CONSTRUCTION, INC., Plaintiff V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC. and PSI PUMPING SOLUTIONS, INC., : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM OF DEFENDANT THE COMMONS AT PARKER SPRINGS, INC. 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied as stated. The contract, being an instrument in writing, speaks for itself. Therefore, to the extent that the averments of Paragraph 8 are inconsistent therewith, they are specifically denied. 9. Denied. It is specifically denied that Varish was requested to perform additional work by Parker Springs and K&I Contractors. It is further specifically denied that the written invoices attached to Plaintiffs' Complaint constitute accurate invoices for such work. 10. Admitted in part and denied in part. It is admitted that K&I Contractors, Inc. was the contractor hired by Parker Springs to construct the buildings at the site. It is specifically denied that K&I Contractors, Inc. was the authorized agent of Parker Springs at all times relevant hereto. To the contrary, K&I Contractors, Inc. was specifically authorized to do certain items of work and was, at times, a conduit for information between Parker Springs and other contractors at the site, including Varish. 11. Denied. It is specifically denied that any payment is owed for any additional work or that the invoices attached to the Complaint represent correct information regarding the amount and cost of such alleged additional work. 12. Denied. It is specifically denied that Defendants approved and accepted any additional work performed by Varish. To the contrary, no such approval or acceptance occurred. 13. Denied. The averments of Paragraph 13 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Varish has timely fulfilled its obligations under the terms of the contract to the satisfaction of both Parker Springs as the owner and K&I Contractors. To the contrary, Varish did not timely fulfill its obligations and was terminated by Parker Springs as a result. 14. Admitted in part and denied in part. It is admitted that Varish contracted with Parker Springs to purchase a sanitary pump from PSI for a cost of $196,500.00. It is specifically denied that the Purchase Agreement attached to the Complaint constitutes a true and correct copy of the entire Purchase Agreement. To the contrary, it does not. 15. Denied. After reasonable investigation, Defendant Parker Springs is without knowledge or information sufficient to form a belief as to the truth of the averment and it is therefore denied, with strict proof thereof demanded at trial. 16. Admitted. 2 17. Denied. It is specifically denied that prior to the letter of September 17, 2007 there was no notice produced to Varish with any deficiencies or other problems with the contract work. To the contrary, Varish was repeatedly notified of deficiencies in its work throughout the course of the project. 18. Denied. It is specifically denied that any contract balance whatsoever remains payable to Varish. To the contrary, Varish owes repayment to Parker Springs for payments which it received for work which was never completed satisfactorily. 19. Denied. It is specifically denied that Varish incurred any costs as a result of any actions taken by Parker Springs. To the contrary, any such additional costs were caused by Varish's own failures to perform its contract obligations. 20. Denied. It is specifically denied that Varish incurred lost profits in any amount whatsoever and it is further specifically denied that any of the Defendants were responsible for such alleged lost profits. To the contrary, Varish itself was responsible for any lost profits due to its failures to perform its obligations under the contract. 21. Denied. It is specifically denied that Defendants owe Varish any amount whatsoever. It is further specifically denied that Varish's calculation of the alleged amounts owed is correct. 22. Admitted in part and denied in part. It is admitted that Defendants refused to pay any sums demanded by Varish. It is specifically denied that any such demands were reasonable in nature. COUNTI 23. Defendant Parker Springs hereby incorporates its responses at Paragraphs 1 through 22 above as if fully set forth herein. 3 24. Denied as stated. The contract, being an instrument in writing, speaks for itself. Therefore, to the extent that the averments of Paragraph 24 are inconsistent therewith, they are specifically denied. 25. Denied. It is specifically denied that Parker Springs and K&I Contractors accepted and approved all work performed by Varish. To the contrary, they did not. 26. Denied. The averments of Paragraph 26 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Parker Springs and K&I Contractors have breached the contract by failing to pay Varish for work performed. To the contrary, there has been no such breach or violation. 27. Denied. It is specifically denied that Varish has continually abided by the terms of the contract. To the contrary, Varish was responsible for defective performance of its work on several occasions and late performance of its work on other occasions throughout the project, all of which led to Varish's eventual termination from the project by Parker Springs. 28. Denied. It is specifically denied that Varish has suffered any damages whatsoever due to any breach of the contract by Defendants. To the contrary, there have been no such breaches and no such resulting damages. 29. Denied. It is specifically denied that Varish has suffered any damages. WHEREFORE, Defendant Parker Springs respectfully requests this Court to dismiss Count I of Varish's Complaint and enter judgment in favor of Defendant Parker Springs. COUNT II 30. Defendant Parker Springs incorporates Paragraphs 1 through 29 of this Answer as if fully set forth herein. 4 31. Denied. It is specifically denied that Defendants requested Varish to perform additional excavation and site work at the Parker Springs location at the direction and instruction of K&I Construction. To the contrary, there was no such request. 32. Denied. It is specifically denied that Defendant Parker Springs or K&I Construction promised to pay Varish for the alleged additional work. 33. Denied. It is specifically denied that Varish performed the excavation and site work as requested for the Parker Springs location as invoiced. To the contrary, the invoices are inaccurate. 34. Denied. It is specifically denied that Defendants approved and accepted the work performed by Varish. To the contrary, they did not. 35. Denied. It is specifically denied that Defendants have benefited from the work performed by Varish or that they have retained the benefit of any other work. 36. Denied. It is specifically denied that the amount of $261,302.10 is the fair and reasonable value for the work performed by Varish. It is further denied that any unpaid balance remains on the contract price or the unpaid invoices. To the contrary, there is no such legitimate balance. 37. Admitted in part and denied in part. It is admitted that Defendants have refused to make payment of the alleged outstanding balance. It is specifically denied that any such amounts are due and owing to Varish. WHEREFORE, Defendant Parker Springs respectfully requests this Court to dismiss Count II of Varish's Complaint and enter judgment in favor of Defendant Parker Springs. 5 COUNT III 38. Defendant Parker Springs hereby incorporates Paragraphs 1 through 37 of this Answer as if fully set forth herein. 39. Denied. The averments of Paragraph 39 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendants would be unjustly enriched if they were permitted to retain the benefit of the work performed by Varish without paying any further monies to Varish for said work. 40. Denied. It is specifically denied that Defendants have accepted work in the amount alleged by Varish or that they have been enriched in that amount. To the contrary, they have not. 41. Denied. It is specifically denied that the amount alleged by Varish is a fair and reasonable cost for the work performed by Varish, or that such work was approved and accepted by Defendants. To the contrary, the work was not so approved or accepted and the amount alleged by Varish is inaccurate and excessive. WHEREFORE, Defendant Parker Springs respectfully requests this Court to dismiss Count III of Varish's Complaint and enter judgment in its behalf. COUNT IV 42-49. Defendant Parker Springs believes and therefore avers that the allegations in Paragraphs 42 through 49 are directed to other parties and therefore require no response by Defendant Parker Springs. 6 NEW MATTER 50. Varish's Complaint fails to state a cause of action upon which relief can be granted. 51. Varish breached its contractual obligations to Defendant Commons at Parker Springs by failing to perform work required under its contract, defectively performing such work and delaying project operations. 52. Additionally, at various times during the project, Varish submitted documents to Defendant Parker Springs which were false and which attempted to fraudulently induce Defendant Parker Springs to make payments to Varish which were not otherwise due and owing. 53. By reason of Varish's actions, Defendant Parker Springs owes no payment whatsoever to Varish on the contract. 54. As a result of its own actions, Varish is estopped from recovery of any further payments under the contract. 55. As a result of its own actions, Varish's claims for quantum meruit and unjust enrichment should be denied based upon the doctrine of unclean hands. 56. Varish has been paid in full for all work which it performed under the contract. WHEREFORE, Defendant Parker Springs respectfully requests this Court to dismiss Varish's Complaint and enter judgment in favor of Defendant Parker Springs. COUNTERCLAIM 57. The averments contained in Paragraphs 1 through 56 above are incorporated herein by reference as if fully set forth. 58. The site work for which Varish was responsible pursuant to its contract with Parker Springs was critical to the progress of the project and was required as a precondition to 7 Township approval so the project without which the subdivided lots owned by Parker Springs would be unsellable. 59. Varish failed to perform its obligations under the contract and breached that contract through the following acts and omissions: (a) failure to complete work in a workmanlike, non-defective manner; (b) failure to complete work required for Township approvals; (c) failure to accurately account for work performed; (d) submission of false and fraudulent invoices to Parker Springs and K&I; (e) refusal to perform work within the original scope of the contract unless paid for such as additional work; and (f) interference with work of other contractors on the site. 60. As a direct and proximate result of the acts and omissions of Varish as set forth above, Parker Springs suffered damages of the following nature: (a) overpayment of invoices for defective work and work not performed; (b) costs for correction and completion of Varish's work after Varish left the project; (c) loss of respective sales of lots; and (d) loss of property values due to delays. 61. The amount of damages suffered by Parker Springs has not yet been calculated, but will exceed the $50,000.00 arbitration limit. WHEREFORE, Counterclaim Plaintiff the Commons at Parker Springs, Inc. respectfully requests this Court to enter judgment in its favor and against Defendant Varish Construction, Inc. 8 in an amount yet to be determined but exceeding $50,000.00, together with the costs of this action and such other remedies as this Court shall deem just and appropriate. COUNT I - BREACH OF CONTRACT 62. The averments of Paragraphs 57 through 61 are incorporated herein by reference as if fully set forth. 63. Varish's acts and omissions constitute material breaches of its contract with Parker Springs. 64. As a direct and proximate result of Varish's breaches of contract, Parker Springs suffered damages in an amount yet to be calculated but in excess of the $50,000.00 arbitration limit. WHEREFORE, Counterclaim Plaintiff the Commons at Parker Springs, Inc. respectfully requests this Court to enter judgment in its favor and against Defendant Varish Construction, Inc. in an amount yet to be determined but exceeding $50,000.00, together with the costs of this action and such other remedies as this Court shall deem just and appropriate. COUNT II - BREACH OF IMPLIED WARRANTY OF WORKMANLIKE QUALITY 65. The averments of Paragraphs 57 through 64 are incorporated herein by reference as if fully set forth. 66. In entering into its contract obligations for the site work at the project, Varish impliedly warranted that its work on the project would be of good workmanlike quality. 67. Varish's work on the project was defective and therefore in breach of its implied warranty of workmanlike quality. 9 68. As a direct and proximate result of Varish's breach of implied warranty, Parker Springs suffered damages as set forth above herein in an amount yet to be determined but exceeding the $50,000.00 arbitration limit. WHEREFORE, Counterclaim Plaintiff the Commons at Parker Springs, Inc. respectfully requests this Court to enter judgment in its favor and against Defendant Varish Construction, Inc. in an amount yet to be determined but exceeding $50,000.00, together with the costs of this action and such other remedies as this Court shall deem just and appropriate. COUNT III - MISREPRESENTATION/FRAUD 69. The averments of Paragraphs 57 through 68 are incorporated herein by reference as if fully set forth. 70. During the project, Varish submitted documentation in support of invoices which was false and fraudulent, seeking to induce payment of such invoices, relating to work allegedly performed by Varish's subcontractor, Explosives Experts, Inc. 71. In reliance upon the documents submitted to it by Varish, Parker Springs made payments to Varish on several invoices for work which had not, in fact, been performed, in an approximate amount of $89,424.00. 72. The precise amount of overpayment by Parker Springs due to fraudulent invoices submitted by Varish has not yet been calculated, but, upon information and belief, exceeds the $50,000.00 arbitration limit. WHEREFORE, Counterclaim Plaintiff the Commons at Parker Springs, Inc. respectfully requests this Court to enter judgment in its favor and against Defendant Varish Construction, Inc. in an amount yet to be determined but exceeding $50,000.00, together with the costs of this action and such other remedies as this Court shall deem just and appropriate. 10 Respectfully submitted, CALDWELL & KEARNS, P.C. By: Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: April 29, 2010 11 VERIFICATION I, Michael D. Reed, do hereby verify that I am counsel for Defendant The Commons at Parker Springs, Inc. and that, in that capacity, I am familiar with the factual matters set forth in the foregoing document and do hereby verify that the facts set forth therein are true and correct to the best of my knowledge, information and belief. This verification is made subject to the provisions of 18 Pa. C.S.A. §4904, relating to unsworn falsifications to authorities. DATE: '/ " ?- ? ` / D --t- Michael D. Reed CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 CALDWELL & KEARNS, P By:2t ? Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: April 29, 2010 162027 VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER CIVIL ACTION - LAW SPRINGS, INC., K&I cn N o =n CONTRACTORS, INC. and JURY TRIAL DEMANDED _, PSI PUMPING SOLUTIONS, INC. , : z. Defendants NOTICE TO PLEAD TO: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 Your are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. CALDWELL & KEARNS, P.C. BY: ichael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: April 29, 2010 VARISH CONSTRUCTION, INC., Plaintiff V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC. and PSI PUMPING SOLUTIONS, INC., : Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT PSI PUMPING SOLUTIONS, INC. 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied as stated. The contract, being an instrument in writing, speaks for itself. Therefore, to the extent that the averments of Paragraph 8 are inconsistent therewith, they are specifically denied. 9. Denied. It is specifically denied that Varish was requested to perform additional work by Parker Springs and K&I Contractors. It is further specifically denied that the written invoices attached to Plaintiffs' Complaint constitute accurate invoices for such work. 10. Admitted in part and denied in part. It is admitted that K&I Contractors, Inc. was the contractor hired by Parker Springs to construct the buildings at the site. It is specifically denied that K&I Contractors, Inc. was the authorized agent of Parker Springs at all times relevant hereto. To the contrary, K&I Contractors, Inc. was specifically authorized to do certain items of work and was, at times, a conduit for information between Parker Springs and other contractors at the site, including Varish. 11. Denied. It is specifically denied that any payment is owed for any additional work or that the invoices attached to the Complaint represent correct information regarding the amount and cost of such alleged additional work. 12. Denied. It is specifically denied that Defendants approved and accepted any additional work performed by Varish. To the contrary, no such approval or acceptance occurred. 13. Denied. The averments of Paragraph 13 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Varish has timely fulfilled its obligations under the terms of the contract to the satisfaction of both Parker Springs as the owner and K&I Contractors. To the contrary, Varish did not timely fulfill its obligations and was terminated by Parker Springs as a result. 14. Admitted in part and denied in part. It is admitted that Varish contracted with Parker Springs to purchase a sanitary pump from PSI for a cost of $196,500.00. It is specifically denied that the Purchase Agreement attached to the Complaint constitutes a true and correct copy of the entire Purchase Agreement. To the contrary, it does not. 15. Denied. After reasonable investigation, Defendant PSI Pumping Solutions, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averment and it is therefore denied, with strict proof thereof demanded at trial. 16. Admitted. 2 17. Denied. It is specifically denied that prior to the letter of September 17, 2007 there was no notice produced to Varish with any deficiencies or other problems with the contract work. To the contrary, Varish was repeatedly notified of deficiencies in its work throughout the course of the project. 18. Denied. It is specifically denied that any contract balance whatsoever remains payable to Varish. To the contrary, Varish owes repayment to Parker Springs for payments which it received for work which was never completed satisfactorily. 19. Denied. It is specifically denied that Varish incurred any costs as a result of any actions taken by Parker Springs. To the contrary, any such additional costs were caused by Varish's own failures to perform its contract obligations. 20. Denied. It is specifically denied that Varish incurred lost profits in any amount whatsoever and it is further specifically denied that any of the Defendants were responsible for such alleged lost profits. To the contrary, Varish itself was responsible for any lost profits due to its failures to perform its obligations under the contract. 21. Denied. It is specifically denied that Defendants owe Varish any amount whatsoever. It is further specifically denied that Varish's calculation of the alleged amounts owed is correct. 22. Admitted in part and denied in part. It is admitted that Defendants refused to pay any sums demanded by Varish. It is specifically denied that any such demands were reasonable in nature. 3 COUNTI 23-29. Defendant PSI believes and therefore avers that the averments of Paragraphs 23 through 29 are directed to parties other than Defendant PSI and, therefore, no response is required. COUNT II 30-37. Defendant PSI believes and therefore avers that the averments of Paragraphs 30 through 37 are directed to parties other than Defendant PSI and therefore, no response is required. COUNT III 38-41. Defendant PSI believes and therefore avers that the averments of Paragraphs 38 through 41 are directed to parties other than Defendant PSI and therefore, no response is required. COUNT IV - TORTIOUS INTERFERENCE WITH CONTRACT 42. Defendant PSI hereby incorporates Paragraphs 1 through 41 of this Answer as if fully set forth herein. 43. Admitted in part and denied in part. It is admitted that Varish and PSI entered into a contract for purchase of a sanitary pump for the Parker Springs location in Cumberland County. It is specifically denied that the document attached as Exhibit "C" to Plaintiff's Complaint constitutes a complete copy of the Purchase Agreement. To the contrary, it does not. 44. Denied. After reasonable investigation, Defendant PSI is without knowledge or information sufficient to form a belief as to the truth of the averments and they are therefore denied, with strict proof thereof demanded at trial. 4 45. Denied. It is specifically denied that PSI contacted Parker Springs and offered to install the pump station itself knowing that Varish already had a construction contract with Parker Springs which included, in part, the installation of the pump station. To the contrary, after it had terminated Varish's contract, Parker Springs contacted PSI regarding purchase and installation of the pump station. 46. Denied. After reasonable investigation, Defendant PSI is without knowledge or information sufficient to form a belief as to the truth of the averments and they are therefore denied, with strict proof thereof demanded at trial. 47. Denied. It is specifically denied that PSI took any action to interfere with Varish's contract with Parker Springs, and it is further specifically denied that any such action was intentional, woeful, wanton or improper. 48. Denied. It is specifically denied that PSI interfered with the contractual relationship between Varish and Parker Springs by negotiating its own contract directly with Parker Springs. To the contrary, Parker Springs approached PSI after Parker Springs had terminated Varish's contract relating to the project. 49. Denied. The averments of Paragraph 49 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that PSI is liable to Varish on any basis whatsoever or for any damages whatsoever. To the contrary, PSI is not liable to Varish. WHEREFORE, Defendant PSI Pumping Solutions, Inc. respectfully requests this Court to dismiss Varish's Complaint and enter judgment in favor of Defendant PSI Pumping Solutions, Inc. 5 NEW MATTER 50. The averments contained in Paragraphs 1 through 49 are incorporated herein by reference as if fully set forth. 51. Varish's Complaint fails to set forth a cause of action upon which relief can be granted. 52. In accepting a contract from Parker Springs to provide the pump station to the project, PSI did not interfere with any then-existing contract or business relationship between Varish and Parker Springs, since Parker Springs had already terminated Varish's involvement in the project before approaching PSI. WHEREFORE, Defendant PSI Pumping Solutions, Inc. respectfully requests this Court to dismiss Varish's Complaint and enter judgment in favor of Defendant PSI Pumping Solutions, Inc. Respectfully submitted, CALDWELL & KEARNS, P.C. ?2 By: Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: April 29, 2010 6 VERIFICATION I, Michael D. Reed, do hereby verify that I am counsel for Defendant PSI Pumping Solutions, Inc. and that, in that capacity, I am familiar with the factual matters set forth in the foregoing document and do hereby verify that the facts set forth therein are true and correct to the best of my knowledge, information and belief. This verification is made subject to the provisions of 18 Pa. C.S.A. §4904, relating to unsworn falsifications to authorities. DATE: Michael D. Reed CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 CALDWELL & KEARNS, P.C. 1 By: Michael D. Reed, Esquire Attorney I.D. 435193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: April 29, 2010 162070 VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVA NIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER CIVIL ACTION - LAW SPRINGS, INC., K&I CONTRACTORS, INC. and JURY TRIAL DEMANDED PSI PUMPING SOLUTIONS, INC., : Defendants C_: o °rt N - r ri NOTICE TO PLEAD -51 TO: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP a River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 Your are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. CALDWELL & KEARNS, P By: -?? Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: April 29, 2010 VARISH CONSTRUCTION, INC., Plaintiff V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC. and PSI PUMPING SOLUTIONS, INC., : Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT K&I CONTRACTORS. INC. 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied as stated. The contract, being an instrument in writing, speaks for itself. Therefore, to the extent that the averments of Paragraph 8 are inconsistent therewith, they are specifically denied. 9. Denied. It is specifically denied that Varish was requested to perform additional work by Parker Springs and K&I Contractors. It is further specifically denied that the written invoices attached to Plaintiffs' Complaint constitute accurate invoices for such work. 10. Admitted in part and denied in part. It is admitted that K&I Contractors, Inc. was the contractor hired by Parker Springs to construct the buildings at the site. It is specifically denied that K&I Contractors, Inc. was the authorized agent of Parker Springs at all times relevant hereto. To the contrary, K&I Contractors, Inc. was specifically authorized to do certain items of work and was, at times, a conduit for information between Parker Springs and other contractors at the site, including Varish. 11. Denied. It is specifically denied that any payment is owed for any additional work or that the invoices attached to the Complaint represent correct information regarding the amount and cost of such alleged additional work. 12. Denied. It is specifically denied that Defendants approved and accepted any additional work performed by Varish. To the contrary, no such approval or acceptance occurred. 13. Denied. The averments of Paragraph 13 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Varish has timely fulfilled its obligations under the terms of the contract to the satisfaction of both Parker Springs as the owner and K&I Contractors. To the contrary, Varish did not timely fulfill its obligations and was terminated by Parker Springs as a result. 14. Admitted in part and denied in part. It is admitted that Varish contracted with Parker Springs to purchase a sanitary pump from PSI for a cost of $196,500.00. It is specifically denied that the Purchase Agreement attached to the Complaint constitutes a true and correct copy of the entire Purchase Agreement. To the contrary, it does not. 15. Denied. After reasonable investigation, Defendant K&I Contractors, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averment and it is therefore denied, with strict proof thereof demanded at trial. 16. Admitted. 2 17. Denied. It is specifically denied that prior to the letter of September 17, 2007 there was no notice produced to Varish with any deficiencies or other problems with the contract work. To the contrary, Varish was repeatedly notified of deficiencies in its work throughout the course of the project. 18. Denied. It is specifically denied that any contract balance whatsoever remains payable to Varish. To the contrary, Varish owes repayment to Parker Springs for payments which it received for work which was never completed satisfactorily. 19. Denied. It is specifically denied that Varish incurred any costs as a result of any actions taken by Parker Springs. To the contrary, any such additional costs were caused by Varish's own failures to perform its contract obligations. 20. Denied. It is specifically denied that Varish incurred lost profits in any amount whatsoever and it is further specifically denied that any of the Defendants were responsible for such alleged lost profits. To the contrary, Varish itself was responsible for any lost profits due to its failures to perform its obligations under the contract. 21. Denied. It is specifically denied that Defendants owe Varish any amount whatsoever. It is further specifically denied that Varish's calculation of the alleged amounts owed is correct. 22. Admitted in part and denied in part. It is admitted that Defendants refused to pay any sums demanded by Varish. It is specifically denied that any such demands were reasonable in nature. COUNTI 23. Defendant K&I Contractors, Inc. hereby incorporates its responses at Paragraphs I through 22 above as if fully set forth herein. 3 24. Denied as stated. The contract, being an instrument in writing, speaks for itself. Therefore, to the extent that the averments of Paragraph 24 are inconsistent therewith, they are specifically denied. 25. Denied. It is specifically denied that Parker Springs and K&I Contractors accepted and approved all work performed by Varish. To the contrary, they did not. 26. Denied. The averments of Paragraph 26 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Parker Springs and K&I Contractors have breached the contract by failing to pay Varish for work performed. To the contrary, there has been no such breach or violation. 27. Denied. It is specifically denied that Varish has continually abided by the terms of the contract. To the contrary, Varish was responsible for defective performance of its work on several occasions and late performance of its work on other occasions throughout the project, all of which led to Varish's eventual termination from the project by Parker Springs. 28. Denied. It is specifically denied that Varish has suffered any damages whatsoever due to any breach of the contract by Defendants. To the contrary, there have been no such breaches and no such resulting damages. 29. Denied. It is specifically denied that Varish has suffered any damages. WHEREFORE, Defendant K&I Contractors, Inc. respectfully requests this Court to dismiss Count I of Varish's Complaint and enter judgment in favor of Defendant K&I Contractors, Inc. 4 COUNT II 30. Defendant K&I Contractors, Inc. incorporates Paragraphs I through 29 of this Answer as if fully set forth herein. 31. Denied. It is specifically denied that Defendants requested Varish to perform additional excavation and site work at the Parker Springs location at the direction and instruction of K&I Construction. To the contrary, there was no such request. 32. Denied. It is specifically denied that Defendant Parker Springs or K&I Construction promised to pay Varish for the alleged additional work. 33. Denied. It is specifically denied that Varish performed the excavation and site work as requested for the Parker Springs location as invoiced. To the contrary, the invoices are inaccurate. 34. Denied. It is specifically denied that Defendants approved and accepted the work performed by Varish. To the contrary, they did not. 35. Denied. It is specifically denied that Defendants have benefited from the work performed by Varish or that they have retained the benefit of any other work. 36. Denied. It is specifically denied that the amount of $261,302.10 is the fair and reasonable value for the work performed by Varish. It is further denied that any unpaid balance remains on the contract price or the unpaid invoices. To the contrary, there is no such legitimate balance. 37. Admitted in part and denied in part. It is admitted that Defendants have refused to make payment of the alleged outstanding balance. It is specifically denied that any such amounts are due and owing to Varish. 5 WHEREFORE, Defendant K&I Contractors, Inc. respectfully requests this Court to dismiss Count II of Varish's Complaint and enter judgment in favor of Defendant K&I Contractors, Inc. COUNT III 38. Defendant K&I Contractors, Inc. hereby incorporates Paragraphs 1 through 37 of this Answer as if fully set forth herein. 39. Denied. The averments of Paragraph 39 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Defendants would be unjustly enriched if they were permitted to retain the benefit of the work performed by Varish without paying any further monies to Varish for said work. 40. Denied. It is specifically denied that Defendants have accepted work in the amount alleged by Varish or that they have been enriched in that amount. To the contrary, they have not. 41. Denied. It is specifically denied that the amount alleged by Varish is a fair and reasonable cost for the work performed by Varish, or that such work was approved and accepted by Defendants. To the contrary, the work was not so approved or accepted and the amount alleged by Varish is inaccurate and excessive. WHEREFORE, Defendant K&I Contractors, Inc. respectfully requests this Court to dismiss Count III of Varish's Complaint and enter judgment in its behalf. 6 COUNT IV 42-49. Defendant K&I Contractors, Inc. believes and therefore avers that the allegations in Paragraphs 42 through 49 are directed to other parties and therefore require no response by Defendant K&I Contractors, Inc. NEW MATTER 50. Varish's Complaint fails to state a cause of action upon which relief can be granted. 51. K&I was not a signatory to any contract with Varish and did not enter into any oral agreement with Varish. 52. Defendant K&I owes no payment whatsoever to Varish on the basis of any contract or any other theory. 53. Defendant K&I was not an owner of the project and therefore did not receive or retain any benefit from any work performed by Varish. 54. Additionally, at various times during the project, Varish submitted documents to Defendant Parker Springs which were false and which attempted to fraudulently induce Defendant Parker Springs to make payments to Varish which were not otherwise due and owing. 55. As a result of its own actions, Varish is estopped from recovery of any further payments under the contract. 56. As a result of its own actions, Varish's claims for quantum meruit and unjust enrichment should be denied based upon the doctrine of unclean hands. 57. Varish has been paid in full for all work which it performed under the contract. WHEREFORE, Defendant K&I Contractors, Inc. respectfully requests this Court to dismiss Varish's Complaint and enter judgment in favor of Defendant K&I Contractors, Inc. 7 Respectfully submitted, CALDWELL & KEARNS, P.C. By: \ `` Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: April 29, 2010 8 VERIFICATION 1, Michael D. Reed, do hereby verify that I am counsel for Defendant K&I Contractors, Inc. and that, in that capacity, I am familiar with the factual matters set forth in the foregoing document and do hereby verify that the facts set forth therein are true and correct to the best of my knowledge, information and belief. This verification is made subject to the provisions of 18 Pa. C.S.A. §4904, relating to unsworn falsifications to authorities. 1 DATE: Michael D. Reed CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 CALDWELL & KEARNS, P. By:?.. Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: April 29, 2010 162069 4 SMIGEL, ANDERSON & SACKS, L.L.P. ri..Y Peter M. Good, Esquire River Chase Office Center t? pgood@sasllp.com 4431 North Front Street, 3nd Floor 2010 N j { O hi 3: 04 Darryl J. Liguori, Esquire Harrisburg, PA 17110-1778 dliguori@sasllp.com Attorneys for Plaintiff (717) 234-2401 e 'Ft VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. THE COMMONS AT PARKER : No. 07-6274 Civil Term SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. PLAINTIFF'S ANSWER TO NEW MATTER OF DEFENDANT PSI PUMPING SOLUTIONS, INC. AND NOW COMES, Plaintiff Varish Construction, Inc., ("Varish"), by and through its attorneys, Smigel, Anderson & Sacks, LLP, to file the following Plaintiffs Answer to New Matter of Defendant PSI Pumping Solutions, Inc. and avers in support as follows: 50. This is an incorporation paragraph to which no responsive pleading is required. 51. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 52. Denied. To the contrary, PSI Pumping Solutions, Inc., having already contracted with Varish to sell the pumping station to Varish, did in fact interfere with the contractual relationship between Varish and Parker Springs by negotiating its own contract directly with Parker Springs to sell and install the pumping station. WHEREFORE, Varish Construction, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against PSI Pumping Solutions, Inc. in an amount in excess of this county's mandatory arbitration limits together with interest, the costs of this action, attorney's fees, and such other relief that this Court may deem reasonable. Date: May 18, 2010 Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. By: L9q 1?% Peter M. Good, Esquire - ID # 64316 Darryl J. Liguori, Esquire - ID # 91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. NO. 07-7500 MLD THE COMMONS AT CIVIL ACTION - LAW PARKER SPRINGS, INC., Defendant. MECHANICS' LIEN CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Plaintiff, hereby certify that I this day served a true and correct copy of the foregoing Answer to New Matter of Defendant PSI Pumping Solutions, Inc. upon the person(s) indicated below by depositing a copy of the same in the United States Mail, postage prepaid at Harrisburg, Pennsylvania, and addressed as follows and by certified mail, return receipt requested: Michael D. Reed, Esquire Mette, Evans, and Woodside 3401 N. Front Street, P.O. Box 5950 Harrisburg, PA 17110 Attorney for Defendant SMIGEL, ANDERSON & SACKS, L.L.P. 1) L D atc: May 1 E, 2010 Ey: 0?) Peter M. Good, Esquire Attorney I.D. No. 64316 Darryl J. Liguori, Esquire Attorney I.D. No. 91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff I SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire pgood@sasllp.com Darryl J. Liguori, Esquire dliguori@sasllp.com Attorneys for Plaintiff VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term -i THE COMMONS AT PARKER ; r? -- -+ SPRINGS, INC., K&I CIVIL ACTION - LAW 7_: -TI, CONTRACTORS and INC. , , PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED CJ r =Y' Defendants. 'yam ! ) L _ ;..l PLAINTIFF'S ANSWER TO NEW MATTER OF DEFENDANT K&I CONTRACTORS, INC. AND NOW COMES, Plaintiff Varish Construction, Inc., ("Varish"), by and through its attorneys, Smigel, Anderson & Sacks, LLP, to file the following Plaintiffs Answer to New Matter of Defendant K&I Contractors, Inc. and avers in support as follows: 50. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 51. Denied. Varish and The Commons at Parker Springs ("Parker Springs") and K&I Contractors entered into the Contract whereby Varish agreed to perform the work for the Parker Springs site; and Parker Springs and K & I Contractors agreed to pay Varish for the work performed by Varish, whether that was work covered by the Contract or additional work requested by K & I Contractors. 52. Denied. As described in the Complaint, K&I Contractors was a party to the Contract, was the authorized agent of Parker Springs, and owes Varish for the various breaches of the Contract. 53. Denied. As alleged in the Complaint K & I Contractors was the contractor hired by Parker Springs to construct the buildings at the site and were the authorized agents of Parker Springs. K & I Contractors approved and accepted the work performed by Varish under the Contract and Invoices. 54. Denied. Varish at no time submitted false documents to Parker Springs. 55. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 56. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 57. Denied. Varish has not been paid in full under the terms of the Contract and the amounts claimed in the Complaint remain due and owing to Varish. WHEREFORE, Varish Construction, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Parker Springs and K&I Construction in an amount in excess of this county's mandatory arbitration limits together with interest, the costs of this action, attorney's fees, and such other relief that this Court may deem reasonable. 2 Respectfully submitted, Date: May 18, 2010 SMIGEL, ANDERSON & SACKS, L.L.P. By: ZD-0 I L:?) Peter M. Good, Esquire - ID # 64316 Darryl J. Liguori, Esquire - ID # 91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 07-6274 Civil Term THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Plaintiff, hereby certify that I this day served a true and correct copy of the foregoing Answer to New Matter of Defendant K&I Contractors, Inc. upon the person(s) indicated below by depositing a copy of the same in the United States Mail, postage prepaid at Harrisburg, Pennsylvania, and addressed as follows and by certified mail, return receipt requested: Michael D. Reed, Esquire Mette, Evans, and Woodside 3401 N. Front Street, P.O. Box 5950 Harrisburg, PA 17110 Attorney for Defendant SMIGEL, ANDERSON & SACKS, L.L.P. Date: May 18, 2010 By: Peter M. Good, Esquire Attorney I.D. No. 64316 Darryl J. Liguori, Esquire Attorney I.D. No. 91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff .1 SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center 4431 North Front Street, P Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire pgood@sasllp.com Darryl J. Liguori, Esquire dliguori@sasllp.com Attorn eys for Plaintiff' IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. PLAINTIFF'S ANSWER TO NEW MATTER AND COUNTERCLAIM OF DEFENDANT THE COMMONS AT PARKER SPRINGS, INC. AND NOW COMES, Plaintiff Varish Construction, Inc., ("Varish"), by and through its attorneys, Smigel, Anderson & Sacks, LLP, to file the following Plaintiffs Answer to New Matter and Counterclaim of Defendant The Commons at Parker Springs, Inc. ("Parker Springs") and avers in support as follows: NEW MATTER 50. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 51. Denied. It is specifically denied that Varish breached its contractual obligations to Parker Springs. To the contrary, Varish performed all work required under the contract, did not defectively perform any work, and did not delay project operations. 52. Denied. Varish at no time submitted false documents to Parker Springs. 53. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a I response is deemed required, the averments are specifically denied. Furthermore, to the contrary, Varish has not been paid in full under the terms of the Contract and the amounts claimed in the Complaint remain due and owing to Varish. 54. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 55. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 56. Denied. To the contrary, Varish has not been paid in full under the terms of the Contract and the amounts claimed in the Complaint remain due and owing to Varish. WHEREFORE, Varish Construction, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Parker Springs in an amount in excess of this county's mandatory arbitration limits together with interest, the costs of this action, and any such other relief that this Court may deem reasonable. COUNTERCLAIM 57. This is an incorporation paragraph to which no response is required. 58. Denied. After reasonable investigation, Varish is without knowledge or information sufficient to form a belief as to the averments of this paragraph and the averments are therefore denied, with strict proof thereof demanded at trial. 59. Denied. It is specifically denied that Varish breached its contractual obligations to Parker Springs. To the contrary, Varish performed all work required under the contract, did not defectively perform any work, and did not delay project operations. 2 60. Denied. It is specifically denied that Varish submitted invoices for defective work and work not performed. To the contrary, Varish performed all work required under the contract and did not defectively perform any work. After reasonable investigation, Varish is without knowledge or information sufficient to form a belief as to whether Parker Spring lost sales and property values and therefore those averments are denied, with strict proof thereof demanded at trial. 61. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Varish Construction, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Parker Springs in an amount in excess of this county's mandatory arbitration limits together with interest, the costs of this action, attorney's fees, and such other relief that this Court may deem reasonable. COUNT I - BREACH OF CONTRACT 62. This is an incorporation paragraph to which no response is required. 63. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 64. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 3 WHEREFORE, Varish Construction, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Parker Springs in an amount in excess of this county's mandatory arbitration limits together with interest, the costs of this action, attorney's fees, and such other relief that this Court may deem reasonable. COUNT II - BREACH OF IMPLIED WARRANTY OF WORKMANLIKE QUALITY 65. This is an incorporation paragraph to which no response is required. 66. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 67. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. Furthermore, to the contrary, Varish performed all work required under the contract and did not defectively perform any work. 68. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Varish Construction, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Parker Springs in an amount in excess of this county's mandatory arbitration limits together with interest, the costs of this action, attorney's fees, and such other relief that this Court may deem reasonable. COUNT III - MISREPRESENTATION/FRAUD 69. This is an incorporation paragraph to which no response is required. 4 70. Denied. It is specifically denied that Varish submitted false and fraudulent invoices. To the contrary, all invoices submitted by Varish were work performed under the terms of the Contract for Parker Springs and K&I Contractors. 71. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. Furthermore, Parker Springs has made no payments to Varish for work that was not performed. To the contrary, Varish has not been paid in full under the terms of the Contract and the amounts claimed in the Complaint remain due and owing to Varish. 72. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Varish Construction, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Parker Springs in an amount in excess of this county's mandatory arbitration limits together with interest, the costs of this action, attorney's fees, and such other relief that this Court may deem reasonable. Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Date: May 18, 2010 BY: Peter M. Good, Esquire - ID # 64316 Darryl J. Liguori, Esquire - ID # 91715 River Chase Office Center, 3d Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff 5 VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Plaintiff, hereby certify that I this day served a true and correct copy of the foregoing Answer to New Matter and Counterclaim of Defendant The Commons at Parker Springs, Inc. upon the person(s) indicated below by depositing a copy of the same in the United States Mail, postage prepaid at Harrisburg, Pennsylvania, and addressed as follows and by certified mail, return receipt requested: Michael D. Reed, Esquire Mette, Evans, and Woodside 3401 N. Front Street, P.O. Box 5950 Harrisburg, PA 17110 Attorney for Defendant SMIGEL, ANDERSON & SACKS, L.L.P. Date: May 18, 2010 By: Peter M. Good, Esquire Attorney I.D. No. 64316 Darryl J. Liguori, Esquire Attorney I.D. No. 91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff l i • CERTIFICATI: AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on tile, the transcript of the proceedings, if any, and the docket entries in the following matter: Varish Construction, Inc. vs. The Commons At Parker Springs, Inc., K & I Contractors, Inc., and PSI Pumping Solutions, Inc. • 2007-6274 Civil 1672 MDA 2008 The documents comprising the record have been numbered from No.l to 117, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on v~hich the record has been transmitted to the Appellate Court is 12/9!2008 . C rtis R. io tary Regina Lebo An additional copy of this certificate is enclosed Please sign and date copy, thereby acknowledging receipt of this record. Date tN SUPSRlOR COURT Signature Title DEC 1 0 ?_008 MIDDLE ,. {~~~ ~eR- Ffl~l}-t~i-rl%,,E f~ THE F,~i~l'F°~~'!~`n?`~Y PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ^X for JURY trial at the next term of civil court. ^ for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) Varish Construction, Inc. (Plaintiff] vs. The Commons at Parker Springs, Inc., K&I Contractors, Inc., PSI Pumping Solutions, Inc. (Defendant) vs. 2aEO.~~t~z~ ar~~t:Iz cul~l~~:rT,~.~~r ~. ~~~;?I,;I~TiY ~Ci viVS'r~~~i~{,~ (check one) ^X Civil Action -Law ^ Appeal from arbitration (other) The trial list will be called on Aug. 21, 2010 and Trials commence on Sept. 20, 2010 Pretrials will be held on Sept. 8, 2010 (Briefs are due 5 days before pretrials 07-6274 Civil No. , Indicate the attorney who will try case for the party who files this praecipe: Peter M. Good, Esq., Smigel, Anderson & Sacks, 4431 N. Front St., Harrisburg, PA 17110 Term Indicate trial counsel for other parties if known: Michael D. Reed, Esq., Caldwell & Kearns, 3631 N. Front St., Fjpr~s~PA 17110 This case is ready for trial. Signed: yt/' i " t t (Jy~ Peter M. Good, Esq. Print Name: June 17, 2010 Date: Varish Construction, Inc. Attorney for: ~~# ~~331 ~ ~yyi.~s VARISH CONSTRUCTION, INC., Plaintiff, v. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term CIVIL ACTION -LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Plaintiff, hereby certify that I this day served a true and correct copy of the foregoing Praecipe for Listing Case for Trial upon the person(s) indicated below by depositing a copy of the same in the United States Mail, postage prepaid at Harrisburg, Pennsylvania, and addressed as follows and by certified mail, return receipt requested: Michael D. Reed, Esquire Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 Attorney for Defendant SMIGEL, ANDERSON & SACKS, L.L.P. Date: June 17, 2010 B {~~-"" ~ Y Peter M. Good, Esquire Attorney I.D. No. 64316 Darryl J. Liguori, Esquire Attorney I.D. No. 91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW THE COMMONS AT PARKER SPR=INGS, INC., PSI PUMPING SOLUTIONS, INC., Defendants 07-6274 CIVIL TERM IN RE: CIVIL TRIAL LIST ORDER OF COURT AND NOW, this 31st day of August, 2010, upon consideration of the call of the Civil Trial List and neither counsel having called the above-captioned case for trial, it is stricken from the trial list. ,' Peter M. Good, Esquire River Chase Ofc Ctr 4431 North Front Street Harrisburg, PA 17110 Fo the Plaintiff Michael D. Reed Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 For the Defendants pcb I fc) 1 ? 7:32 _?:E"1 r7'1r7'i ilj3 tV = C' < By the Court, CA/TL '-" FiLE-U-OF ICE - T , F 7','0 i H0 N CTAI PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ?X for JURY trial at the next term of civil court. ? for trial without a jury. ---------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) Varish Construction, Inc. (Plaintiff) vs. The Commons at Parker Springs, Inc., K&I Contractors, Inc., PSI Pumping Solutions, Inc. (Defendant) vs. `0 IS ' ?14 'r 4: ?:04 a 37 ! ;uI U COUNT (other) The trial list will be called on Nov, 2, 2010 and Trials commence on Dec. 6, 2010 Pretrials will be held on Nov. 10, 2010 (Briefs are due S days before pretrials No. 07-6274 Civil Term Indicate the attorney who will try case for the party who files this praecipe: Peter M. Good, Esq., Smigel, Anderson & Sacks, 4431 N. Front St., Harrisburg, PA 17110 Indicate trial counsel for other parties if known: Michael D. Reed, Esq., Caldwell & Kearns, 3631 N. Front St., HarfisbVrg, PA 17110 This case is ready for trial. Date: Sept. 22, 2010 Signed: ?Vr IV ` { `N17-' Peter M. Good, Esq. Print Name: Attorney for: Varish Construction, Inc. 4a5• tx?) Po AT T4 aitalqal 2-'*ayg77s (check one) ?X Civil Action - Law ? Appeal from arbitration a VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW '-* THE COMMONS AT PARKER `7 . <w , SPRINGS, INC., K&I 'r P CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants 07-6274 CIVIL TERM -, IN RE: PRETRIAL CONFERENCE A pretrial conference was held in the chambers'o Judge Oler in the above-captioned case on Wednesday, November 10, 2010. Present on behalf of Plaintiff were Peter M. Good, Esquire, and Darryl J. Liguori, Esquire. Present on behalf of Defendants was Michael D. Reed, Esquire. This case involves Plaintiff's actions for (1) unjust enrichment and breach of contract by an owner of land, the Commons of Parker Springs, Inc., arising out of nonpayment of Plaintiff's charges for excavation and other site work, (2) tortious interference with contractual relations by Defendant PSI Pumping Solutions, Inc., and (3) unjust enrichment and breach of contract by Defendant K&I Contractors, Inc., based upon Plaintiff's failure to receive payment for certain work performed for the benefit of Defendant K&I Contractors, Inc. Counterclaims have been filed by Defendant, the Commons at Parker Springs, Inc., against Plaintiff for costs involved in completing allegedly uncompleted work and for loss of profit. This will be a jury trial in which each side, pursuant to an agreement of counsel, will have four peremptory challenges for a total of eight. The estimated duration of trial is three days. Issues which may arise at trial include whether the owner of Plaintiff Varish Construction, Inc., may be impeached by I? an alleged conviction for tampering with evidence, in other words, whether that is a crimen falsi offense for purposes of impeachment rules. Counsel are in agreement that Mr. Varish may be impeached by a conviction for unsworn falsification to authorities and that he may bring out the fact that that case is on appeal. Counsel are further in agreement that no further explanation of the circumstances of the offense or the bases for appeal may be presented to the jury. Counsel have stipulated that the proof of conviction may be presented in the form of cross-examination of Mr. Varish without the need for counsel to produce certified records from the Adams County Court where the conviction occurred. With respect to deposition testimony which will be shown or read to the jury and contains objections being pursued by counsel, copies of the affected transcripts with the areas of objection being pursued highlighted, shall be furnished to the Court at least five days prior to commencement of the trial term at which this case will be tried with brief memoranda in support of counsels' respective positions on the issues. Counsel have indicated that they do not expect any such issues to arise. Counsel are researching the issue of whether the conviction of Mr. Varish for unsworn falsification to authorities would have any effect upon his right to testify in a civil case. With respect to settlement negotiations, it does not appear to the Court that a settlement of this case is likely prior to trial. By the Court, i / Peter M. Good, Esquire Darryl J. Liguori, Esquire 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 For the Plaintiff Michael D. Reed, Esquire 3631 North Front Street Harrisburg, PA 17110-1533 For the Defendants Court Admin Prothonotary pcb VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA C o '4+7 V. v3 rnCo 0 2C - i 2M < rho THE COMMONS AT PARKER SPRI WZ NGS, INC., p4 K & I CONTRACTORS, INC., AND .gyp ?4 PSI PUMPING SOLUTIONS, INC., : _© Z CD -n DEFENDANTS N0.07-6274 DZ C5m IN RE: PRE-TRIAL ORDER OF COURT < AND NOW, this 29th da y of November, 2010, this Court having been assigned to conduct the trial of this matter, IT IS HEREBY ORDERED AND DIRECTED that: 1. All parties are directed to prepare an exhibit list. Two copies of this exhibit list shall be provided to the Court prior to the commencement of trial. All visual aids used in the case shall be disclosed to the opposing party. 2. Counsel for each party is directed to file with the Court on or before 12:00 p.m, on December 3, 2010, a list of the numbered standard jury instructions the party is requesting. If a party is proposing a unique jury instruction or requesting significant modification of a standard instruction, it shall provide the full text of the proposed instruction to the Court. 3. On or before 12:00 p.m. on December 3, 2010, the parties will provide a proposed verdict slip to the Court for review. 4. On or before 12:00 p.m. on December 3, 2010, the parties shall submit proposed voir dire questions to the Court for review. By the Court, 1* t qj-A V M. L. Ebert, Jr., V 11 J. Peter M. Good, Esquire Attorney for Plaintiff Via Facsimile only: 717-234-3611 Michael D. Reed, Esquire Attorney for Defendants Via Facsimile only: 717-232-2766 bas 2 VARISH CONSTRUCTION, INC.: IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., : DEFENDANTS 07-6274 CIVIL JURY VERDICT FORM 1. Varish Construction v. The Commons at Parker Springs A. Breach of Contract 1. Do you find that there was a valid contract between Varish Construction and The Commons at Parker Springs? Yes No If yes, move on to Question 2. If no, move on to Question 4. 2. Do you find that The Commons at Parker Springs breached the contract? ?`' Yes No If yes, move on to Question 3. If no, move on to Question 4. 3. What is the total amount of damages that Varish Construction incurred as a result of The Commons at Parker Springs' breach of the contract? Damages $ ? S$3" Move on to Question 4. B. Unjust Enrichment 4. Do you find that Varish Construction conferred a benefit on The Commons at Parker Springs? X' Yes No If yes, move on to Question 5. If no, move on to Question 7. 5. Do you find that The Commons at Parker Springs will be unjustly enriched by the acceptance and retention of those benefits? Yes If yes, move on to Question 6. If no, move on to Question 7. 6. What is the total amount of the benefit that The Commons at Parker Springs was unjustly enriched by? -A 0 Damages $ C? - Move on to Question 7. II. Varish Construction v. K & I Contractors A. Breach of Contract 7. Do you find that there was a valid contract between Varish Construction and K No & I Contractors? Yes No If yes, move on to Question 8. If no, move on to Question 10. 8. Do you find that K & I Contractors breached that contract? X Yes No If yes, move on to Question 9. If no, move on to Question 10. 9. What is the total amount of damages that Varish Construction incurred as a result of K & I Contractors breach of the contract? Damages $ Move on to Question 10. B. Unjust Enrichment 10. Do you find that Varish Construction conferred a benefit on K & I Contractors? Yes No If yes, move on to Question 11. If no, move on to Question 12. 11. Do you find that K & I Contractors will be unjustly enriched by the acceptance and retention of those benefits? Yes No If yes, move on to Question 12. If no, move on to Question 13. 12. What is the total amount of the benefit that K & I Contractors was unjustly enriched by? 4SO Damages $ 116 . Move on to Question 13. III. Varish Construction v. PSI Pumping Solutions A. Tortious Interference with Contract 13. Do you find that PSI Pumping Solutions tortiously interfered with Varish Construction's contract with The Commons at Parker Springs? Yes No If yes, move on to Question 14. If no, move on to Question 15. 14. What is the total amount of damages that Varish Construction incurred as a result of the interference with the contract? Damages $ NIA Move on to Question 15. IV. The Commons at Parker Springs v. Varish Construction A. Breach of Contract 15. Do you find that there was a valid contract between The Commons at Parker Springs and Varish Construction? .-Y' Yes No If yes, move on to Question 16. If no, Move on to Question 17. I 16. Do you find that Varish Construction breached the contract? Yes ?C No If yes, move on to Question 17. If no, move on to Question 18. 17. What is the total amount of damages that The Commons at Parker Springs' suffered as a result of Varish Construction's breach of the contract? Damages $ P /A - Move to Question 18. B. Breach of Implied Warranty of Workmanlike Quality 18. Do you find that Varish Construction breached an implied warranty of workmanlike quality in the performance of its contract? Yes No If yes, move on to Question 19. If no, return to the Courtroom. 19. If so, what are the total damages, if any, that The Commons at Parker Springs suffered as a result of Varish Construction's breach? Damages $ ?IA Return to the Courtroom. De e 10 -2 Date Jury Forepe on In the Court of Commons Pleas • of Cumberla nd County PA. a Docket No. 2007-6274 , , Judge: EBERT Attorney: ?e4c - M i?p6 d - Attorney: M "Ck ce I -D. i2eed _ Date: 6 Jb to - URORS j /b 2S CALLED CAUSE P D ;6L r0 WILLIAM K f .Y), ALLISON N K'M ADD M ^ 'II A A ?! t REN L . l ? i?,Ar+e?? ,ISTY R ci r P ? 9??1GI X tENCE J C? Zir. 3pw 17 ININM> oms DEC06-68 MILLER, ROGER W 18 IMNNN OMEN DEC06-229 ADAMS, MELISSA K 19 1NMNENN IN DEC06- , V 201NINNNISEN¦ DEC06- 21 ININNMME DEC J? 22 imommons DEC06-194 FOOS, WILLIAM F VARISH CONSTRUCTION, INC. " In the Court of Commons Pleas of Cumberland County, PA., Docket No. 2007-6274 -VS_ THE COMMONS AT PARKER SPRINGS, K&I CONTRACTORS, INC., PSI PUM INC. No. Juror # 23 I?NNNN¦NNNUN DEC06-U15 24 1NNNNNmmun DEC06-18 INNMNANNNNNN DEC06-315 26 immoNNININNMN DEC06-158 271NNNNNnomme DECo6-43 28 immo INNNN DEC06-272 29 imanNNNNNN DEC06-132 301NNNNNNNNNNNNN DEC06-146 31 INNININNNNNNNN DEC06-38 321NNNNEENNNNNN DEC06-58 33 INNININNNNNNNN DEC06-174 34 ,wmnNNNNNNNN DEC06-295 351NNNININNrNN DEC06-278 36 37 38 39 40 41 42 43 44 Judge: EBERT Attorney: Pe_+er M, . &6416? Attorney: mae"o ' R c-, "d Date: Dec e .- b er oLU ( 0 JURORS NAMES OF JURORS CALLED DOWS, WENDY J RAKERS, MELISSA R MASON, DAVID G MACHEMER, JILL R MCDONNELL, SEAN P TODD, WILLIAM S WILSON, SHARON L WITHUN, PAUL R FLOOD, JERRY R PETERMAN, CHARLES L KRINER, LINDA A HOLTZAPPLE, MARIE A CAUSE I P I D SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 111E PROTH01,1 2010DEC27 AMID 24 'C'MBERLAN3, COUNTY PE N S YLVA,, ,A Peter M. Good, Esquire p ood(i4sasllp.com Darryl J. Liguori, Esquire dli uori ,sasllp.com Attorneys for Plaintiff VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 07-6274 Civil Term CIVIL ACTION - LAW : JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO CONFORM THE VERDICT FOR PREJUDGMENT STATUTORY INTEREST AND NOW COMES, Plaintiff Varish Construction, Inc., by and through his counsel Smigel, Anderson & Sacks, LLP, who files the following Motion to Conform the Verdict for Prejudgment Statutory Interest and avers in supports as follows: 1. This matter arises out of a construction contract between Plaintiff Varish Construction, Inc. (hereinafter "Varish") and Defendant The Commons at Parker Springs, Inc. (hereinafter "Parker Springs") and Defendant K&I Contractors, Inc. (hereinafter "K&I") 2. After a three day jury trial from December 6 through December 8, 2010, the jury found in favor of Varish as follows: a. $39,883.74 on Varish's breach of contract count against Parker Springs; b. $85,407.30 on Varish's unjust enrichment count against Parker Springs; and c. $62,335.00 on Varish's unjust enrichment count against K&I. 3. Varish now submits this Motion to Conform the Verdict to add prejudgment statutory interest at the rate of six percent (6%) per annum. 4. In Pennsylvania contract cases, statutory prejudgment interest is awarded as of right. Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572 (Pa. Super. 2003). 5. Interest must, as a matter of law, be awarded where damages are ascertainable by computation. Id. 6. The lawful interest rate in Pennsylvania is fixed at 6% per annum. 41 P.S. § 202. 7. A Pennsylvania Trial Court may mold a verdict to include interest owed. Pa. R.A.P. 1701(b). 8. The addition of prejudgment interest in a contract case is a matter of legal right. Burkholder v. Cherry, 607 A.2d 745 (Pa. Super. 1992). 9. Prejudgment interest on the amount of a contract balance owing for work done and services rendered is awarded whether damages were based on terms of a contract or on an unjust enrichment or quantum meruit theory. Id. 10. Prejudgment interest must be awarded in a contract action despite the good faith of a party contesting the claim. Gold & Co., Inc. v. Northeast Theater Corp., 421 A.2d 1151 (Pa. Super. 1980). 11. Statutory interest from September 17, 2007 to the date of the verdict, December 8, 2010 (1179 days), amounts to $7,729.80 on Varish's breach of contract count against Parker Springs. 12. Statutory interest from September 17, 2007 to the date of the verdict, December 8, 2010 (1179 days) amounts to $11,319.82 on Varish's unjust enrichment count against Parker Springs. 13. Statutory interest from September 17, 2007 to the date of the verdict, December 8, 2010 (1179 days) amounts to $12,081.04 on Varish's unjust enrichment count against K&I. WHEREFORE Plaintiff Varish Construction, Inc. respectfully requests this Honorable Court to mold its verdict to reflect: (a) the addition of $7,729.80 in statutory prejudgment interest on Varish's breach of contract count against Parker Springs; (b) the addition of $11,319.82 in statutory prejudgment interest on Varish's unjust enrichment count against Parker Springs; and (c) the addition of $12,081.04 in statutory prejudgment interest on Varish's unjust enrichment count against K&I.. Respectfully submitted, SMIGEL, ANDERSON & SACKS, LLP Date: December 22 2010 By:X /' Peter M. Good, Esquire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 Attorneys for Plaintiff i SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center 4431 North Front Street, P Floor Harrisburg, PA 17110-1778 (717) 234-2401 VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER Peter M. Good, Esquire pgood@sasllp.com Darryl J. Liguori, Esquire dliguori@sasllp.com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and : PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Plaintiff in the above-captioned matter, certify that I this day served a copy of the foregoing Plaintiff's Motion to Conform the Verdict upon the person(s) indicated below by e-mailing a copy addressed as follows: Michael D. Reed, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110-1533 Attorney for Defendants Date: December 22, 2010 SMIGEL, ANDERSON & SACKS, L.L.P. By: Peter M. Good, Esqu e ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff _ FiLED-OFFICF SMIGEL, ANDERSON & SACII;S L:L= t tt}( e1 sr }}-hiy I River Chase Office Center 4431 North Front Street, 3'd Floor ?01 J 0EC 2 Harrisburg, PA 17110-1778 A? (717) 234-2401 C1J MSERL; t3 nllpr?4 VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. EA Peter M. Good, Esquire pgood@sasllp.com Darryl J. Liguori, Esquire dliguori@sasllp.com Attorneys tiorneysfor Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF VARISH CONSTRUCTION, INC.'S RESPONSE IN OPPOSITION TO DEFENDANTS' POST-TRIAL MOTIONS AND NOW COMES, Plaintiff Varish Construction, Inc., by and through its counsel Smigel, Anderson & Sacks, LLP, to file the following Response in Opposition to Defendants' Post-Trial Motions: 1. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part and denied in part. It is admitted that the Court denied Defendants' motion for a non-suit. It is denied that the Court's denial was erroneous. To the contrary, Plaintiff alleged that Defendants breached both the written contract and the additional contracts they had entered into when they requested that Plaintiff perform work in addition to the work contracted for under the terms of the written contract. See Complaint at ¶ 9 and ¶ 24. The jury was free to find that the Plaintiff could recover under the terms of the written contract and the aforesaid oral contracts. The jury was also free to find for Plaintiff under an unjust enrichment theory assuming that Plaintiff did not satisfy all the elements of breach of contract for the different sums of damages it was requesting from the Defendants. It has been long established under Pennsylvania law that Plaintiff was free to plead causes of actions against the Defendants in the alternative and the jury was free to award the Plaintiff damages on each of its various counts. Pa. R.C.P. 1020. 5. Admitted. 6. Denied. It is not contradictory for the jury to award damages for breach of a written contract and unjust enrichment when Plaintiff was alleging that Defendants breached a written contract, oral contracts, and unjust enrichment in the alternative if the jury found that Plaintiff failed to prove the elements for a breach of contract. 7. Denied. It is not contradictory for the jury to award damages for breach of a written contract and unjust enrichment when Plaintiff was alleging that Defendants breached a written contract, oral contracts, and unjust enrichment in the alternative if the jury found that Plaintiff failed to prove the elements for a breach of contract. WHEREFORE, Plaintiff Varish Construction, Inc. respectfully requests this Honorable Court deny Defendants' Post-Trial Motions and affirm judgment in favor of the Plaintiff. II. MOTION FOR A NEW TRIAL 8. This is an incorporation paragraph and no response is required. 9. Denied. Defendants were in no way prejudiced by the denial of Defendants' Motion for a Non-Suit when Plaintiff alleged that Defendants breached a written contract, oral contracts, and unjust enrichment in the alternative if the jury found that Plaintiff failed to prove the elements for a breach of contract. 2 WHEREFORE, Plaintiff Varish Construction, Inc. respectfully requests this Honorable Court deny Defendants' Post-Trial Motions and affirm judgment in favor of the Plaintiff. Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Date: December 22, 2010 By: - w4w? Peter M. Good, Esquire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff 3 SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center Peter M. Good, Esquire 4431 North Front Street, 3rd Floor pgood@sasllp.com Harrisburg, PA 17110-1778 Darryl J. Liguori, Esquire (717) 234-2401 dliguori@sasllp.com Attorneys for Plaintiff VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Plaintiff in the above-captioned matter, certify that I this day served a copy of the foregoing Plaintiffs Response in Opposition to Defendants' Post-Trial Motions upon the person(s) indicated below by e-mailing a copy addressed as follows: Michael D. Reed, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110-1533 Attorney for Defendants Date: December 22, 2010 SMIGEL, ANDERSON & SACKS, L.L.P. By: Peter M. Good, Esquire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW rn -T, - CONTRACTORS, INC., and ::u r' PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Z;i r- cD Defendants. PRAECIPE TO ENTER JUDGMENT AFTER VERDICT TO THE PROTHONOTARY: - Please enter judgment in favor of the Plaintiff Varish Construction, Inc. and against the Defendant the Commons at Parker Springs, Inc. and against the Defendant K&I Contractors, Inc. on the verdict of the jury, the Court having denied Defendants' Motion for Post-Trial Relief. Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Iii Date: a f lIt By: mi Peter M. Good, Esquire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-21401 Attorneys fi)r Plaintiff IQD iCC VAI'Gd Judgment entered pursuant to jury verdict in favor of the Plaintiff Varish Construction, Inc. and against the Defendant the Commons at Parker Springs and against the Defendant K&I Contractors, Inc. a 8 -11 Date: Pr notary ASSESSMENT OF DAMAGES Damages are assessed against the Commons at Parker Springs, Inc. on the judgment in this action as follows: Verdict (Breach of Contract) Verdict (Unjust Enrichment) Total $39,883.74 $85,407.30 $125,291.04 Damages are assessed against K&I Contractors, Inc. on the judgment in this action as follows: Verdict (Unjust Enrichment) Total $62,335.00 $62,335.00 Date: P otary VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 07-6274 Civil Term THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. Pa.R.C.P. 237 CERTIFICATION I certify that I have this day mailed by first-class United States mail a copy of the foregoing Praecipe to Enter Judgment After Verdict upon each attorney who has appeared in this action addressed as follows: Michael D. Reed, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110-1533 Attorney for Defendants Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. J f I, Date: o` C /( By: Peter M. Good, Esq ire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff i SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center 4431 North Front Street, 3 d Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire pgood@sasilp.com Darryl J. Liguori, Esquire dl iguori(erpsasllp. com Attorneys for Plaintiff VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term : CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Plaintiff in the above-captioned matter, certify that I this day served a copy of the foregoing Plaintiffs Praecipe to Enter Judgment After Verdict upon the person(s) indicated below by mailing a copy addressed as follows: Michael D. Reed, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110-1533 Attorney for Defendants SMIGEL, ANDERSON & SACKS, L.L.P. Date: By: G4 " / Peter M. Good Esquire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys f )r Plaintiff VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT' OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO: The Commons at Parker Springs, Inc. K&I Contractors, Inc. 2159 Overhill Road 801 E. Fairmont Street Allentown, PA 18103 Allentown, PA 18109 Pursuant to Pa.R.C.P. 236, you are hereby notified that judgment has been entered against you in the above-captioned matter. Date: O? ' 3qn?J Pr o otary If you have any questions concerning this notice, please contact Plaintiff's Counsel at the following address and phone number: Peter M. Good, Esquire Smigel, Anderson & Sacks, L.L.P. 4431 North Front Street, 3rd Floor Harrisburg, PA 17110 (717) 234-2401 , I _. VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V No. 07-6274 Civil Term . , THE COMMONS AT PARKER CIVIL ACTION - LAW -,, P-- - ' SPRINGS, INC., K&I _ ' CONTRACTORS, INC. and JURY TRIAL DEMANDED PSI PUMPING SOLUTIONS, INC., : .? Defendants :D NOTICE OF APPEAL Notice is hereby given that The Commons at Parker Springs, Inc., and K&I Contractors, Inc., Defendants above named, hereby appeal to the Superior Court of Pennsylvania from the Order entered in this matter on the 27`h day of January 2011. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. REQUEST FOR TRANSCRIPT Appellant's Request for Transcript pursuant to Rule 1911 of the Pennsylvania Rules of Appellate Procedure is attached hereto. By: DATED: February 25, 2011 Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. SY$r ,o o P`-, 4J CV4 563 z 3 Respectfully submitted, VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER CIVIL ACTION - LAW SPRINGS, INC., K&I CONTRACTORS, INC. and JURY TRIAL DEMANDED PSI PUMPING SOLUTIONS, INC., : Defendants REQUEST FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, the official court reporter is hereby ordered to produce, certify and file the transcript in this matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. By: DWELL & EARNS, P ichael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: February 25, 2011 PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2007-06274 VARISH CONSTRUCTION INC (vs) COMMONS AT PARKER SPRINGS INC Reference No... Filed......... 10/26/2007 Case Type...... COMPLAINT d Time. 8.14 Ju gment......: 125,291.04 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... P Disposed Desc.: ------------ Case Comm t ----------- Disposed Date. i 0/00/0000 en s -- H gher Crt 1.: 1672 MDA2008 62335.00 Higher Crt 2.: ******************************************************************* ************* General Index Attorney Info VARISH CONSTRUCTION INC PLAINTIFF GOOD PETER M 800 BULLFROG ROAD GETTYSBURG ADAMS CO PA COMMONS AT PARKER SPRINGS INC DEFENDANT REED MICHAEL D THE 2159 OVERHILL ROAD ALLENTOWN PA 18103 K&I CONTRACTORS INC DEFENDANT REED MICHAEL D 801 E FAIRMONT STREET ALLENTOWN PA 18109 PSI PUMPING SOLUTIONS DEFENDANT REED MICHAEL D 134 GUN CLUB ROAD YORK SPRINGS ADAMS CO PA 17322 ******************************************************************************** Judgment Index Amount Date Desc COMMONS AT PARKER SPRINGS INC 39,883.74 12/08/2010 VERDICT THE COMMONS AT PARKER SPRINGS INC 85,407.30 12/08/2010 VERDICT THE K&I COMMONSTATC PARKER NSPRINGS INC 125,291.04 12/03/20101 JVERDICT UDGMENT ON VERDICT THE K&I CONTRACTORS INC 62,335.00 2/03/2011 JUDGMENT ON VERDICT ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - - - 10/26/2007 COMPLAINT - CIVIL ACTION FILED BY PETER M GOOD ESQ FOR PLFF ----------------------------------------------------------- 10/26/2007 PLAINTIFF'S-MOTION FOR ENTRY UPON PROPERTY OF A-PERSON-FILED-BY ---- PETER M GOOD ESQ FOR PLFF ------------------------------------------------------------------- 11/07/2007 ORDER OF COURT - DATED 11-07-07 - IN RE: PLFFS MOTION FOR ENTRY UPON PROPERTY OF A PERSON - A RULE IS HEREY ISSUED UPON DEFTS TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 5 DAYS OF SERVICE - BY J WESLEY OLER JR J - COPIES MAILED 11-07-07 ------------------------------------------------------------------- 11/15/2007 PRAECIPE FOR ENTRY OF APPEARANCE - BY MICHAEL D REED ATTY FOR DEFTS - METTE EVANS & WOODSIDE ------------------------------------------------------------------- 11/28/2007 PRAECIPE TO WITHDRAW PLAINTIFF MOTION FOR ENTRY UPON PROPERTY OF A PERSON - BY PETER M GOOD ATTY FOR PLFF ------------------------------------------------------------------- 11/29/2007 DEFENDANT'S PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY MICHAEL D REED ATTY FOR DEFT ------------------------------------------------------------------- 12/05/2007 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Out of County Case Type: COMPLAINT & NOTICE Ret Type.: Out of County Litigant.: COMMONS AT PARKER SPRINGS INC THE Address..: 2159 OVERHILL ROAD Cty/St/Z : ALLENTOWN, PA 18103 County Nm: LEHIGH Ret Date.: 12/05/2007 10:00 AM Costs....: $83.08 Pd By: SMIGEL ANDERSON SACKS 12/05/2007 PYS511 Cumberland County Prothonotary's Office Page 2 . Civil Case Print 2007-06274 VARISH CONSTRUCTION INC (vs) COMMONS AT PARKER SPRINGS INC Reference No..: Filed........: 10/26/2007 Case Type ..... : COMPLAINT Time........ 8:14 Judgment..... 125,291.04 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... P Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1672 MDA2008 62335.00 Higher Crt 2.: ------------------------------------------------------------------- 12/05/2007 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Out of County Case Type: COMPLAINT & NOTICE Ret Type.: Out of County Litigant.: K&I CONTRACTORS INC Address..: 801 E FAIRMONT STREET Cty/St/Z : ALLENTOWN, PA 18109 County PM: LEHIGH Ret Date.: 12/05/2007 10:00 AM Costs....: $16.00 Pd By: SMIGLE ANDERSON SACKS 12/05/2007 ------------------------------------------------------------------- 12/05/2007 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Out of County Case Type: COMPLAINT & NOTICE Ret Type.: Out of County Litigant.: PSI PLUMBING SOLUTIONS Address..: 134 GUN CLUB ROAD Cty/St/Z : YORK SPRINGS, PA 17322 County PM: ADAMS Ret Date.: 12/05/2007 10:00 AM Costs....: $56.65 Pd By: SMIGEL ANDERSON SACKS 12/05/2007 ------------------------------------------------------------------- 2/21/2008 PLAINTIFF'S MOTION TO COMPEL ARBITRATION WITH RESPECT TO CO-DEFT THE COMMONS AT PARKER SPRINGS INC. - BY PETER M GOOD ATTY FOR PLFF ------------------------------------------------------------------- 2/21/2008 PLAINTIFF'S RESPONSE TO DEFTS PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY PETER M GOOD ATTY FOR PLFF ------------------------------------------------------------------- 2/29/2008 ORDER OF COURT - 2/29/08 IN RE: PLFF'S MOTION TO COMPEL ARBITRATION WITH RESPECT TO CO-DEFT THE COMMONS AT PARKER SPRINGS INC - A RULE IS HEREBY ISSUED UPON DEFTS TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 20 DAYS OF SERVICE - BY J WESLEY OLER JR J - COPIES MAILED 2/29/08 ------------------------------------------------------------------- 3/20/2008 DEFENDANT'S RESPONSE TO RULE TO SHOW CAUSE - BY MICHAEL D REED ATTY FOR DEFTS ------------------------------------------------------------------- 5/27/2008 ORDER - 5/27/08 IN RE: PLFF'S MOTION TO COMPEL ARBITRATION WITH RESPECT TO CO DEFT THE COMMONS AT PARKER SPRINGS INC - AN ARGUMENT HEARING IS SCHEDULED FOR 6/20/08 AT 11:15 AM IN CR1 CUMBERLAND COUNTY COURTHOUSE - BRIEFS ON THE ISSUES WHICH COUNSEL PERCEIVE TO EXIST IN THE CASE SHALL BE SUBMITTED TO THE COURT AT LEAST 5 DAYS PRIOR TO/THE H8EARING/ARGUMENT - BY J WESLEY OLER JR J - COPIES ------------------------------------------------------------------- 6/20/2008 PRAECIPE TO ATTACH AN EXHIBIT - BY PETER M GOOD ATTY FOR DEFT ------------------------------------------------------------------- 6/23/2008 ORDER - 6/23/08 IN RE: PLFF'S MOTION TO COMPEL ARBITRATION WITH RESPECT TO CO DEFT THE COMMONS AT PARKER SPRINGS INC - AFTER CAREFUL CONSIDERATION OF PLFF'S MOTION TO COMPEL ARBITRATION WITH RESPECT TO CO DEFT THE COMMONS AT PARKER SPRINGS INC AND FOLLOWING A HEARING ARGUMENT ON THE MATTER ON 6/20/08 THE MOTION IS DENIED - BY J WESLEY OLER JR J - COPIES MAILED 6/23/08 ------------------------------------------------------------------- 6/30/2008 ORDER OF COURT - 6/2008 - UPON CONSIDERATION OF PLFFS MOTION TO COMPEL ARBITRARION WITH RESPECT TO CO DEFT THE COMMONS AT PARKER SPRINGS INC AND FOLLOWING HEARING/ARGUMENT THE RECORD WITH RESPECT TO THIS MOTION IS CLOSED AND THE MATTER IS TAKEN UNDER ADVISEMENT - BY J WESLEY OLER JR J - COPIES MAILED 6/30/08 ------------------------------------------------------------------- 7/08/2008 APPLICATION TO AMEND ORDER TO INCLUDE STATEMENT SPECIFIED IN 42 PA CS 702B - BY PETER M GOOD ATTY FOR PLFF ------------------------------------------------------------------- 7/09/2008 AMENDED ORDER OF COURT - 7/8/08 IN RE: PLFFS MOTION TO COMPEL ARBITRATION WITH RESPECT TO CO DEFT THE COMMONS AT PARKER SPRINGS INC - THE PRIOR COURT ORDER ISSUED IN THE ABOVE MATTER ON 7/23/08 THE CINCORRE ORRECTCDATEDDOFETTHE/ /ORDER SHOULDEBE 6//23//08 IN ALLREFLOTHERECT RESPECTS THE PRIOR ORDER OF COURT SHALL REMAIN THE SAME - BY J PYS511 Cumberland County Prothonotary's Office Page 3 Civil Case Print 2007-06274 VARISH CONSTRUCTION INC (vs) COMMONS AT PARKER SPRINGS INC Reference No... Filed....... . 10/26/2007 Case Type ..... : COMPLAINT Time.........: 8:14 Judgment......: 125,291.04 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... P Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1672 M A2008 62335.00 Higher Crt 2.: WESLEY OLER JR J - COPIES MAILED 7/9/08 ------------------------------------------------------------------- 9/22/2008 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO #1672 MDA 2008 ------------------------------------------------------------------- 9/22/2008 ORDER - IN THE SUPERIOR COURT OF PA - AS THE UNDERLYING ORDER IS AN APPEALABLE ORDER THE PETITION FOR REVIEW SHALL BE TREATED AS A NOTICE OF APPEAL SEE PA R A P 1316 311(A)(9) 42 PA CS 7320(A)(1) THE MATTER SHALL PROCEED AS AN APPEAL FROM THE ORDER OF JUNE 23, 2008 PER CURIAM ------------------------------------------------------------------- 9/29/2008 ORDER OF COURT - 9/26/08 - UPON CONSIDERATION OF THE APPEAL FILED IN THE ABOVE CAPTIONED MATTER - APPELLANT IS DIRECTED PURSUANT TO PA RAP 1925B TO FILE OF RECORD IN THIS COURT AND TO SERVCE UPON THE UNDERSIGNED JUDGE A CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL NO LATER THAN 21 DAYS AFTER ENTRY OF THIS ORDER - ANY ISSUES NOT PROPERLY INCLUDED IN THE STATEMENT TIMELY FILED AND SERVED PURSUANT TO THIS ORDER SHALL BE DEEMED WAIVED - BY J WESLEY OLER JR J - COPIES MAILED 9/29/08 ------------------------------------------------------------------- 10/17/2008 STATEMENT OF MATTERS COMPLAINED OF ON APPEAL - BY PETER M GOOD ATTY FOR PLFF ------------------------------------------------------------------- 12/05/2008 ORDER - 12/5/08 IN RE: OPINION PURSUANT TO PA RAP 1925 - BY J WESLEY OLER JR J - COPIES MAILED 12/5/08 ------------------------------------------------------------------- 12/09/2008 NOTICE OF DOCKET ENTRIES MAILED TO PETER M GOOD ESQ DARRYL J LIGUORI ESQ AND MICHAEL D REED ESQ ------------------------------------------------------------------- 1/22/2009 PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFTS - BY MICHAEL D REED ESQ ------------------------------------------------------------------- 11/30/2009 PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY PETER M GOOD ATTY FOR PLFF ------------------------------------------------------------------- 12/16/2009 CERTIFICATE OF REMITTAL/REMAND OF RECORD ------------------------------------------------------------------- 12/16/2009 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I 0 P 65.37 BEFORE ALLEN FREEDBERG AND CLELAND JJ JUDGMENT ENTERED ORDER AFFIRMED ------------------------------------------------------------------- 2/05/2010 PRAECIPE TO WITHDRAW FROM ARGUMENT LIST - BY MICHAEL D REED ESQ FOR DEFTS ------------------------------------------------------------------- 2/11/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFTS PRELIMINARY OBJECTIONS - BY MICHAEL D REED ATTY FOR DEFTS ------------------------------------------------------------------- 4/13/2010 ORDER OF COURT - 4/9/10 IN RE; DEFTS PRELIMINARY OBJECTIONS - PRELIMINARY OBJECTIONS ARE DENIED - BY M L EBERT JR J - COPIES MAILED 4/13/10 ------------------------------------------------------------------- 4/29/2010 ANSWER WITH NEW MATTER AND COUNTERCLAIM OF DEFENDANT THE COMMONS AT PARKER SPRINGS INC - BY MICHAEL D REED ESQ ------------------------------------------------------------------- 4/29/2010 ANSWER WITH NEW MATTER OF DEFENDANT PSI PUMPING SOLUTIONS INC - BY MICHAEL D REED ESQ ------------------------------------------------------------------- 4/29/2010 ANSWER WITH NEW MATTER OF DEFENDANT K&I CONTRACTORS INC - BY MICHALE D REED ESQ ------------------------------------------------------------------- 5/20/2010 PLAINTIFF'S ANSWER TO NEW MATTER OF DEFT PSI PUMPING SOLUTIONS INC - BY DARRYL J LIGUORI ATTY FOR PLFF ------------------------------------------------------------------- 5/20/2010 PLAINTIFF'S ANSWER TO NEW MATTER OF DEFT K&I CONTRACTORS INC - BY DARRYL J LIGUORI ATTY FOR PLFF ------------------------------------------------------------------- 5/20/2010 PLAINTIFF'S ANSWER TO NEW MATTER AND COUNTERCLAIM OF DEFT THE COMMONS AT PARKER SPRINGS - BY DARRYL J LIGUORI ATTY FOR PLFF ------------------------------------------------------------------- PYS511 Cumberland County Prothonotary's Office Page 4 Civil Case Print 2007-06274 VARISH CONSTRUCTION INC (vs) COMMONS AT PARKER SPRINGS INC Reference No... Filed......... 10/26/2007 Case Type.....: COMPLAINT Time...... . 8:14 Judgment......: 125,291.04 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... P Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1672 MDA2008 62335.00 Higher Crt 2.: 6/24/2010 PRAECIPE FOR LISTING CASE FOR JURY TRIAL BY - PETER M GOOD ATTY FOR PLFF ------------------------------------------------------------------- 9/03/2010 ORDER OF COURT DATED 8-31-10 IN RE CIVIL TRIAL LIST - STRICKEN FROM THE TRIAL LIST - BY THE COURT J WESLEY OLER JR J - COPIES MAILED 9-3-10 ------------------------------------------------------------------- 9/24/2010 PRAECIPE FOR LISTING CASE FOR JURY TRIAL BY PETER M GOOD ATTY FOR PLFF ------------------------------------------------------------------- 11/17/2010 PRETRIAL CONFERENCE - BY J WESLEY OLER JR J ------------------------------------------------------------------- 11/29/2010 IN RE: PRE TRIAL ORDER OF COURT - 11/29/10 - BY M L EBERT JR J ------------------------------------------------------------------- 12/08/2010 VERDICT - JURORS SELECTED DECEMBER 6 2010 - 1) DO YOU FIND THAT THERE WAS A VALID CONTRACT BETWEEN VARISH CONSTRUCTION AND THE COMMONS AT PARKER SPRINGS YES 2) DO YOU FIND THAT THE COMMONS AT PARKER SPRINGS BREACHED THE CONTRACT YES 3) WHAT IS THE TOTAL AMOUNT OF DAMAGES THAT VARISH CONSTRUCTION INCURRED AS A RESULT OF THE COMMONS AT PARKER SPRINGS' BREACH OF THE CONTRACT DAMAGES 39,883.74 4) DO YOU FIND THAT VARI H CONSTRUCTION CONFERRED A BENEFIT ON THE COMMONS AT PARKER SPRINGS YES 5) DO YOU FIND THAT THE COMMONS AT PARKER SPRINGS WILL BE UNJUSTLY ENTRICHED BY THE ACCEPTANCE AND RETENTION OF THOSE BENEFITS YES 6) WHAT IS THE TOTAL AMOUNT OF THE BENEFIT THAT THE COMMONS AT PARKER SPRINGS WAS UNJUSTLY ENRICHED BY DAMAGES $85,407.30 7) DO YOU FIND THAT THERE WAS A VALID CONTRACT BETWEEN VARISH CONSTRUCTION AND K & I CONTRACTORS YES 8) DO YOU FIND THAT K & I CONTRACTORS BREACHED THAT CONTRACT YES 9 WHAT IS THE TOTAL AMOUNT OF DAMAGES THAT VARISH CONSTRUCTION INCURRED AS A RESULT OF K & I CONTRACTORS BREACH OF THE CONTRACT DAMAGES 0 10) DO Y 8U FIND THAT VARISH CONSTRUCTION CONFERRED A BENEFIT ON K & I CONTRACTORS YES 11) DO YOU FIND THAT K & I CONTRACTORS WILL BE UNJUSTLY ENRICHED BY THE ACCEPTANCE AND RETENTION OF THOSE BENEFITS YES 12) WHAT IS THE TOTAL AMOUNT OF THE BENEFIT THAT K & I CONTRACTORS WAS UNJUSTLY ENRICHED BY $62,335.30 13) DO YOU FIND THAT PSI PUMPING SOLUTIONS TORTIOUSLY INTERFERED WITH VARISH CONSTRUCTION'S CONTRACT WITH THE COMMONS AS PARKER SPRINGS NO 14) WHAT IS THE TOTAL AMOUNT OF DAMAGES THAT VARISH CONSTRUCITON INCURRED AS A RESULT OF THE INTERFERENCE WITH THE CONTRACT N/A 15) DO YOU FIND THAT THERE WAS A VALID CONTRACT BETWEEN THE COMMONS AT PARKER SPRINGS AND VARISH CONSTRUCTION YES 16 DO YOU FIND THAT VARISH CONSTRUCTION BREACHED THE CONTRACT NO 17 WHAT IS THE TOTAL AMOUNT OF DAMAGES THAT THE COMMONS AT PARKER SPRINGS' SUFFERED AS A RESULT OF VARISH CONSTRUCTION'S BREACH OF THE CONTRACT DAMAGES N/A 18) DO YOU FIND THAT VARISH CONSTRUCTION BREACHED AN IMPLIED WARRANTY OF WORKMANLIKE QUALITY IN THE PERFORMANCE OF ITS CONTRACT NO 19) IF SO WHAT ARE THE TOTAL DAMAGES IF ANY THAT THE COMMONS AT PARKER SPRINGS SUFFERED AS A RESULT OF VARISH CONSTRUCTION'S BREACH DAMAGES $N/A ------------------------------------------------------------------- 12/15/2010 POST TRIAL MOTIONS OF DEFTS THE COMMONS AT PARKER SPRINGS INC AND K&I CONTRACTORS INC - BY MICHAEL D REED ATTY FOR DEFTS ------------------------------------------------------------------- 12/27/2010 PLAINTIFF'S MOTION TO CONFORM THE VERDICT FOR PREJUDGMENT STATUTORY INTEREST - BY PETER M GOOD ATTY FOR PLFF ------------------------------------------------------------------- 12/27/2010 PLAINTIFF VARISH CONSTRUCTION INCS RESPONSE IN OPPOSITION TO DEFTS POST TRIAL MOTIONS - BY PETER M GOOD ATTY FOR PLFF ------------------------------------------------------------------- PYS511 Cumberland County Prothonotary's Office Page 5 Civil Case Print 2007-06274 VARISH CONSTRUCTION INC (vs) COMMONS AT PARKER SPRINGS INC Reference No..: Filed........: 10/26/2007 Case Type.....: COMPLAINT Time.........: 8:14 Judgment......: 125,291.04 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... P Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1672 MDA2008 62335.0 H' her 2.: 1/27/20011 ORDER OF COURT - 1/26/11 IN RE: DEFTS POST1TRIALCMOTIONS - BY M L EBERT JR J - COPIES MAILED 1/27/11 ------------------------------------------------------------------- 1/27/2011 ORDER OF COURT - 1/26/11 IN RE: PLFFS MOTION TO CONFORM VERDICT FOR PREJUDGMENT STATUTORY INTEREST - 1 A RULE IS HEREBY ISSUED UPON THE DEFTS TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED 2 THE DEFTS WILL FILE AN ANSWER ON OR BEFORE 2 15 11 - IF NO ANSWER TO THE RULE TO SHOW CAUSE IS FILED BY THE R QU RED DATE THE RELIEF REQUESTED BY PETITIONER WILL BE GRANTED 3- IF AN EITHER PARTY S WILL I BE FILED ON G3/M8/11 I AT REQUIRED 8:30 AM IIN CR22 CUMBERLAND COUNTY COURTHOUSE - BY M L EBERT JR JR - COPIES MAILED 1/27/11 ------------------------------------------------------------------- 2/03/2011 PLAINTIFF'S AMENDED MOTION TO CONFORM THE VERDICT FOR PREJUDGMENT STATUTORY INTEREST - BY PETER M GOOD ATTY FOR PLFF ------------------------------------------------------------------- 2/03/2011 PRAECIPE FOR ENTRY OF JUDGMENT AFTER VERDICT - IN THE AMOUNT OF $125,291.04 AGAINST DEFT THE COMMONS AT PARKER SPRINGS INC - IN THE AMOUNT OF $62,335.00 AGAINST DEFT K&I CONTACTORS INC - BY PETER M GOOD ATTY FOR PLFF ------------------------------------------------------------------- 2/03/2011 NOTICE MAILED TO DEFENDANTS ------------------------------------------------------------------- 2/08/2011 ORDER OF COURT - 2/8/11 IN RE: PLFFS AMENDED MOTION TO CONFORM VERDICT FOR PREJUDGMENT STATUTORY INTEREST - IT IS HEREBY ORDERED AND DIRECTED THAT 1- A RULE IS ISSUED UPON THE DEFTS TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED 2- THE DEFTS WILL FILE AN ANSWER ON OR BEFORE 2 28 11 - IF NO ANSWER TO THE RULE TO SHOW CAUSE IS FILED BY THE R QUIRED DATE THE RELIEF REQUESTED BY PETITIONER WILL BE GRANTED 3- IF AN ANSWER IS FILED ARGUMENT IF REQUIRED OR REQUESTED BY EITHER PARTY WILL BE HELD ON 3/8/11 AT 8:30 AM IN CR2 CUMBERLAND COUNTY COURTHOUSE 4- THE ORDER OF COURT DATED 1 26/11 DEALING WITH THE PLFFS INIITIAL MOTION TO CONFORM VE ICT FOR PREJUDGMENT STATUTORY INTEREST IS VACATED - THE DEFT NEED NOT ANSWER THE INITIAL MOTION - BY M L EBERT JR J - COPIES MAILED 2/8/11 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq*Bal***Pymts/Adl End Bal ******************************** **** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 APPEAL HIGH CT 48.00 48.00 .00 PRAECIPE TRIAL 25.00 25.00 .00 PRAECIPE TRIAL 25.00 25.00 .00 JDMT 14.00 14.00 .00 ------------------------ ------------ 190.50 190.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TR!17^*?? QOM RECORD to Tesil -into set my hand and' This Pa. _ -'- -y ?1 ( a 20 (( Y CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 Honorable M. L. Ebert, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Marie Farley, Official Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 CALDWELL & KEARNS, P. By: Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: February 25, 2011 174042 VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER CIVIL ACTION - LAW SPRINGS, INC., K&I ?Z„ r-r7m rn _ -,n CONTRACTORS, INC. and JURY TRIAL DEMANDED :-r? enj PSI PUMPING SOLUTIONS, INC., : {?? C3 Defendants ANSWER OF DEFENDANTS THE COMMONS AT PARKER j SPRINGS, INC. AND K&I CONTRACTORS, INC. TO RULE TO SHOW CAUSE Now come Defendants The Commons at Parker Springs, Inc. and K&I Contractors, Inc. through their counsel, Caldwell & Kearns, P.C. and file this Answer to the Rule to Show Cause issued by this Honorable Court on February 8, 2011, in support of which they aver as follows: On December 8, 2010 the jury in this matter returned a verdict in favor of Plaintiff Varish Construction, Inc. ("Varish") in an amount of $39,883.74 against Defendant The Commons at Parker Springs, Inc. ("Parker Springs") on Varish's breach of contract count. The jury further awarded $85,407.30 in favor of Varish and against Parker Springs on Varish's unjust enrichment count. Finally, the jury awarded $62,335.00 in favor of Varish and against Defendant K&I Contractors, Inc. ("K&I") on Varish's unjust enrichment count. 2. In its Amended Motion to Conform Verdict for Prejudgment Statutory Interest, Varish seeks an Order molding the verdicts to add prejudgment interest at the rate of 6% per annum from September 17, 2007 to the date of the verdict. 3. While prejudgment interest is a matter of right in contract cases, it should not be added to the verdicts on the unjust enrichment counts. See Wooler Co. v. Fidelity Bank, 479 A.2d 1027 (Pa. Super. 1984). See also, Borough of Dunmore v. Dunmore Police Dept., 526 A.2d 1250 (Pa. Cmwlth Ct. 1987). 4. Varish has provided no legal authority for the addition of prejudgment interest to the unjust enrichment awards against Parker Springs and K&I. WHEREFORE, Defendants The Commons at Parker Springs, Inc. and K&I Contractors, Inc. respectfully request this Court to deny Plaintiff's Amended Motion to Conform Verdict for Prejudgment Statutory Interest with respect to the counts for which the jury awarded damages for unjust enrichment. By: DATED: February 28, 2011 Respectfully submitted, CALDWELL & KEARNS L17/1J1 Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. 2 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 CALDWELL & KEARNS, P.C By: e UGC Michael D. Reed, squire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: February 28, 2011 174100 c VARISH CONSTRUCTION, PLAINTIFF VS. THE COMMONS AT PARKER SPRINGS, INC., K & I CONTRACTORS, INC. PSI PUMPING SOLUTIONS, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N3 ?71) M cz -r 1,77 W %. Defendants : NO. 07-6274 CIVIL ORDER OF COURT AND NOW, this 28th day of February, 2011, the Court being in receipt of a notice of appeal in the above captioned matter, IT IS HEREBY ORDERED AND DIRECTED that: 1. Defendants file a concise statement of the errors complained of on appeal on or before March 21, 2011; 2. The Statement shall be filed of record; 3. The Statement shall be served on this Court pursuant to Pa.R.A.P., Rule 1925(b) (1); IT IS FURTHER ORDERED AND DIRECTED that any issue not properly included in the Statement shall be deemed waived. M. L. Ebert, Jr., J. By the Court, 1/ Peter M. Good, Esquire Attorney for Plaintiff Michael Reed, Esquire Attorney for Defendants bas t`Z-1- Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 AOPC 3014 Rev.03/08/2011 Karen Reid Bramblett, Esq. Prothonotary Milan K. Mrkobrad, Esq. Deputy Prothonotary I i bu erior (Court of Veuuoribauia Middle District March 8, 2011 RE: Varish Construction, Inc. The Commons at Parker Solutions, Inc. Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court. state. Pa. us v. Springs, Inc., K & I Contractors, Inc., and PSI Pumping Appeal of: The Commons at Parker Springs, Inc., and K & I Contractors, Inc. 398 MDA 2011 Trial Court Docket No: 207-06274 Dear Attorney Reed Enclosed please find a copy' of the docket for the above appeal that was recently filed in the Superior Court. Kindly review t information on this docket and notify this office in writing if you believe any corrections are requ'red. Appellant's counsel is also eing sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at he top of this page. Thank you. /vs I Enclosure cc: Buell, David D., Prothor Court Reporter The Honorable Merle L. Peter M. Good, Esq. Respectfully yours, m' Milan K. Mrkobrad, Esq. Deputy Prothonotary m' ?rt Jr., Judge 4:58 P.M. Appeal Docket Sheet Docket Number: 398 MDA 2011 Page 1 of 2 March 8, 2011 CAPTION Superior Court of Pennsylvania Secure Varish Construction, Inc. V. The Commons at Parker Springs, Inc., K & Contractors, Inc., and PSI Pumping Solutions, Inc. Appeal of: The Commons at Parker Spring;, Inc., and K & I Contractors, Inc. CASE INFORMATION` Initiating Document: Notice of Appel Case Status: Active Case Processing Status: February 28, 211 Journal Number: Case Category: Civil CONSOLIDATED Next Event Type: Receive Docketing Next Event Type: Original Record RE Awaiting Original Record Case Type(s): Civil Action Law RELATED CASES Next Event Due Date: March 22, 2011 Next Event Due Date: April 26, 2011 SCHEDULED EVENT COUNSEL INFORMATION Appellant The Commons at Parker Springs, Inc and K&I Contractors, Inc. Pro Se: No Appoint Couns I Status: Represented IFP Status: No Attorney: Reed, Michael Don?hoo Bar No: 035193 Law Firm: Caldwell & Kearns, P.C. Address: 3631 N Front St Harrisburg, PA 17110--1533 Phone No: (717) 232-7661 Fax No: (717) 232-2766 Receive Mail: Yes Receive EMail: No Appellee Varish Construction, Inc. Pro Se: No Appoint Couns I Status: Represented IFP Status: Attorney: Good, Peter M. Bar No: 064316 Law Firm: Smigel, Anderson Sacks, L.L.P. Address: 4431 N Front St 3r FI Harrisburg, PA 17110 Phone No: (717) 234-2401 Fax No: (717) 234-3611 Receive Mail: Yes Receive EMail: No 4:58 P.M. Appeal Docket Sheet Docket Number: 398 MDA 2011 Page 2 of 2 March 8, 2011 Fee Dt Fe N Superior Court of Pennsylvania Secure FEE INFORMATION e ame Fee Amt Receipt Dt Receipt No Receipt Amt 02/25/2011 Notice of Appeal 73.5002/28/2011 2011-SPR-M-000198 73.50 AGENCY/TRIAL COURT INFORMATION Court Below: Cumberland County+ Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Order Appealed From: January 27, 2011 Judicial District: 09 Documents Received: February 28, 2011 Notice of Appeal Filed: February 25, 2011 Order Type: Order Entered OTN(s): Lower Ct Docket No(s):2007-06274 Lower Ct Judge(s): Ebert, Merle L., Jr. Judge inal Record Item ORIGINAL RECORD CONTENT Filed Date Content Description Date of Remand of Record: None Filed Date Docket Entry / Re February 28, 2011 Notice of Appeal BRIEFING SCHEDULE None Filed By DOCKET ENTRY Participant Type Appellant The Commons at Parker Springs, Inc and K&I Contractors, Inc. March 8, 2011 Docketing Statem?nt Exited (Civil) Middle District Filing Office VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. THE COMMONS AT PARKER SPRINGS, INC., c?J K & I CONTRACTORS, INC., AND PSI PUMPING SOLUTIONS, INC., - t- DEFENDANTS NO. 07-6274 =y- ° ?t 7 IN RE: VERDICT ORDER OF COURT AND NOW, this 8th day of March, 2011, after jury trial in the above-captioned matter and upon consideration of the Plaintiff's Amended Motion to Conform Verdict for Pre-judgment Statutory Interest, the Defendants' Answer thereto and after oral argument this date; IT IS HEREBY ORDERED AND DIRECTED that: 1. Plaintiff's Amended Motion to Conform Verdict for Prejudgment Statutory Interest is GRANTED. Accordingly, the verdict in this case is molded to reflect: (a) The addition of $7,729.80 in statutory prejudgment interest for the period from September 17, 2007 to December 8, 2010 on Varish's breach of contract count against Parker Springs; (b) The addition of $16,552.64 in statutory prejudgment interest for the period from September 17, 2007 to December 8, 2010 on Varish's unjust enrichment count against Parker Springs; and (c) The addition of $12,081.04 in statutory prejudgment interest for the period from September 17, 2007 to December 8, 2010 on Varish's unjust enrichment count against K & I Contractors. By the Court, M. L. Ebert, Jr., J. Peter M. Good, Esquire Attorney for Plaintiff ? Michael D. Reed, Esquire Attorney for Defendants Oile M cop; ?f Ia111 ..'I D46 bas 2 VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC. and PSI PUMPING SOLUTIONS, INC., Defendants : No. 07-6274 Civil Term CIVIL ACTION - LAW 'R fir' =• =° JURY TRIAL DEMANDED = DEFENDANTS' CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL Now come Defendants The Commons at Parker Springs, Inc. and K&I Contractors, Inc. and file this Statement of Matters Complained of on Appeal in accordance with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure and pursuant to this Court's Order dated February 28, 2011: The Court erred as a matter of law in denying Defendants' Motion for Non-Suit on the counts involving unjust enrichment, since the evidence presented in Plaintiff s case in chief clearly reflected an express written agreement between Plaintiff and Defendant The Commons at Parker Springs, Inc. and an express oral agreement between Plaintiff and Defendant K&I Contractors, Inc. 2. The Court erred in permitting the unjust enrichment counts to go to the jury where the evidence clearly showed the existence of express written and oral contracts, and recovery for unjust enrichment is inappropriate where the relationship between the parties was based upon an express contract. Roman Mosaic & Tile Co. v. Vollrath, 313 A.2d 305 (Pa. Super. 1973). 3. The Court erred by charging the jury that it could return a verdict for Plaintiff based upon unjust enrichment where the relationship between Plaintiff and Defendants was clearly based upon express contracts. 4. The Court erred in allowing the claim for unjust enrichment against K&I Contractors, Inc. to go to the jury where there was no evidence that K&I retained any benefit from work performed by Varish on the project where K&I was not an owner of the project. The Court erred in denying Defendants' Post-Trial Motions since the verdicts for Plaintiff on unjust enrichment were improper given that the relationship between the parties was governed by express contracts. Roman Mosaic, supra. Respectfully submitted, CALDWELL & KEARNS, P By: Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: March 21, 2011 2 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 CALDWELL & KEARNS, P By: ?b2 Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. K&I Contractors, Inc. and PSI Pumping Solutions, Inc. DATED: March 21, 2011 174852 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 07-6274 Civil CIVIL ACTION - LAW TO THE SHERIFF OF L ?- 4+xQ4 COUNTY: To satisfy the debt, interest and costs due VARISH CONSTRUCTION, INC. Plaintiff (s) From THE COMMONS AT PARKER SPRINGS, INC., 2159 OVERHILL ROAD, ALLENTOWN, PA 18104 (1) You are directed to levy upon the property of the defendant (s)and to sell ALL PERSONAL AND REAL PROPERTY LOCATED AT 2159 OVERHILL ROAD, ALLENTOWN, PA 18104. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: PNC BANK, 1120 SOUTH CEDAR CREST BLVD., ALLENTOWN, PA 18104 LAFAYETTE AMBASSADOR BANK, 4127 TILGHMAN STREET, ALLENTOWN, PA 18104 and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof, (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $125,291.04 L.L. $.50 Interest $1,585.88 Atty's Comm % Due Prothy $2.00 Atty Paid $421.23 Other Costs Plaintiff Paid Date: 3/22/11 David D. Buell, Prothonotary (Seal) B Deputy REQUESTING PARTY: Name PETER M. GOOD, ESQUIRE Address: SMIGEL, ANDERSON & SACKS LLP 4431 N. FRONT STREET HARRISBURG, PA 17110 Attorney for: PLAINTIFF Telephone: 717-234-2401 Supreme Court ID No. 64316 PROTHON-25 PRAECIPE FOR WRIT OF EXECUTION - (MONEY JUDGEMENTS) P.R.C.P. 3101 TO 3149 VARISH CONSTRUCTION, INC, Plaintiff, vs THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 07_6974 Civil Term Amount due $125,291.04 Interest $1,585.88 Atty's Comm. and Costs $199.08 TO THE PROTHONOTARY OF SAID COURT: ISSUE WRIT OF EXECUTION IN THE ABOVE MANNER, (1) Directed to the Sheriff of County, Pennsylvania; (2) against The Commons at Parker Springs, Inc. Defendants(s) and (3) and against PNC Bank, 1120 South Cedar Crest Blvd., Allentown, PA 18103 and Garnishee(s), Lafayette Ambassador Bank, 4127 Tilghman St., Allentown, PA 18104 (4) and index this writ (a) against The Commons at Parker Springs, Inc. Defendants(s) and (b) against PNC Bank, 1120 South Cedar Crest Blvd., Allentown, PA 18103 and Garnishee (s) and Lafayette Ambassador Bank, 4127 Tilghman St., Allentown, PA 18104 as a lis pendens against the real property of the defendant(s) in the name of the Garnishee(s ) as follows : (Specifically describe property and note any specific direction to Sheriff) (Furnish 4 copies for real estate l evy) Please attach/garnish/levy in the following order: 1 All bank accounts held by Garnishees for Defendant; MM E; 2. All personal property located at 2159 Overhill Road, Allentown, PA 18103; 70 ;;0 ..i 3. All real property located at 2159 Overhill Road, Allentown, PA 18103. =r- N) - ZJ' C; p x ,--i C:) CD (5) Exemption has (not) been waived. ? 610- '9 4-j4( Dated ay. so cd al"I $3.p8 CBF 14.00 S6 a i. y4.60 u V 2LS.oo"" as-00, "' ?4. 0 o k, 1, L4 96• ooUII tt ?? ?• SC) sqw- a3 Pd aki S9.oo tau eo. LL .:So 12-0 a %9is Attorney for Plaintiff(s) Print Name: PETER M. GOOD„ ESQ. Address: 4431 N. FRONT ST., HARRISBURG, PA 17110 Attorney for: PLAINTIFF Telephone: Supreme Court ID No (717) 234-2401 64316 1 Al f-C+ 0-P e-X 1 Ued VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 07-6274 Civil Term THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and : PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. WRIT OF EXECUTION NOTICE This paper is a Writ of Execution. It has been issued because there is a judgment against you. It may cause your property to be held or taken to pay the judgment. You may have legal rights to prevent your property from being taken. A lawyer can advise you more specifically of these rights. If you wish to exercise your rights, you must act promptly. The law provides that certain property cannot be taken. Such property is said to be exempt. There is a debtor's exemption of $ 300. There are other exemptions which may be applicable to you. Attached is a summary of some of the major exemptions. You may have other exemptions or other rights. If you have an exemption, you should do the following promptly: (1) Fill out the attached claim form and demand for a prompt hearing. (2) Deliver the form or mail it to the Sheriffs Office at the address noted. You should come to court ready to explain your exemption. If you do not come to court and prove your exemption, you may lose some of your property. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term CIVIL ACTION - LAW : JURY TRIAL DEMANDED WRIT OF EXECUTION AGAINST DEFENDANT THE COMMONS AT PARKER SPRINGS. INC To the Sheriff of Cumberland County: To satisfy the judgment, interest and costs against The Commons at Parker Springs, Inc Defendant: (1) you are directed to levy upon the property of the Defendant and to sell its interest therein; (2) you are also directed to attach the property of the Defendant not levied upon in the possession of LAFAYETTE AMBASSADOR BANK, 4127 Tilghman Street, Allentown, PA 18104 as garnishee of certain bank accounts; in the possession of PNC BANK, 1120 South Cedar Crest Blvd., Allentown, PA 18103 as garnishee of certain bank accounts and to notify the garnishees that: (a) an attachment has been issued; (b) the garnishees are enjoined from paying any debt to or for the account of the Defendants and from delivering any property of the Defendants or otherwise disposing thereof. (3) if property of the Defendant not levied upon and subject to attachment is found in the possession of anyone other than a named garnishees, you are directed to notify him that he has been added as a garnishee and is enjoined as above stated. (continued on following page.) Amount due Interest from Dec. 8, 2010 (6% legal rate): Costs to be Added: Filing Fee (Complaint): Service of Complaint: Writ of Execution (Cumberland County Sheriff): Total: SEAL OF THE COURT $125,291.04 $1,585.88 $92.00 $83.08 $24.00 PROTHONOTARY BY: DEPUTY MAJOR EXEMPTIONS UNDER PENNSYLVANIA AND FEDERAL LAW 1. $ 300 statutory exemption 2. Bibles, school books, sewing machines, uniforms and equipment 3. Most wages and unemployment compensation 4. Social Security benefits 5. Certain retirement funds and accounts 6. Certain veteran and armed forces benefits 7. Certain insurance proceeds 8. Such other exemptions as may be provided by law VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and : PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. CLAIM FOR EXEMPTION To the Sheriff: I, the above-named defendant, claim exemption of property from levy or attachment: (1) From my personal property in my possession which has been levied upon, (a) I desire that my $ 300 statutory exemption be: [ ] (i) set aside in kind (specify property to be set aside in kind): [ ] (ii) paid in cash following the sale of the property levied upon; or (b) I claim the following exemption (specify property and basis of exemption) (2) From my property that is in the possession of a third party, I claim the following exemptions: (a) my $ 300 statutory exemption: [ ] in cash; [ ] in kind (specify property): (b) Social Security benefits on deposit in the amount of $ (c) other (specify amount and basis of exemption): I request a prompt court hearing to determine the exemption. Notice of the hearing should be given to me at: (address and telephone number). I verify that the statements made in this Claim for Exemption are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat. § 4904 relating to unsworn falsification to authorities. Date: (Defendant) THIS CLAIM TO BE FILED WITH THE OFFICE OF THE SHERIFF OF CUMBERLAND COUNTY: Cumberland County Sheriff Cumberland County Courthouse 1 Courthouse Square Room 303 Carlisle, PA 17013 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 07-6274 Civil CIVIL ACTION - LAW TO THE SHERIFF OF L E 14-16- H COUNTY: To satisfy the debt, interest and costs due VARISH CONSTRUCTION, INC. Plaintiff (s) From K&I CONTRACTORS, INC., 801 E. FAIRMONT STREET, ALLENTOWN, PA 18104 (1) You are directed to levy upon the property of the defendant (s)and to sell ALL PERSONAL AND REAL PROPERTY LOCATED AT 801 E. FAIRMONT STREET, ALLENTOWN, PA 18104. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: PNC BANK, 1120 SOUTH CEDAR CREST BLVD., ALLENTOWN, PA 18104 LAFAYETTE AMBASSADOR BANK, 4127 TILGHMAN STREET, ALLENTOWN, PA 18104 and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $62,335.00 L.L. Interest $789.00 Atty's Comm % Atty Paid $418.73 Plaintiff Paid Due Prothy $2.00 Other Costs $40.00 Date: 3/22/11 (Seat) REQUESTING PARTY: Name PETER M. GOOD, ESQUIRE David D. Buell, Prothonot .C? Deputy Address: SMIGEL, ANDERSON & SACKS LLP 4431 N. FRONT STREET HARRISBURG, PA 17110 Attorney for: PLAINTIFF Telephone: 717-234-2401 Supreme Court ID No. 64316 PROTHON-25 PRAECIPE FOR WRIT OF EXECUTION - (MONEY JUDGEMENTS) P.R.C.P. 3101 TO 3149 VARISH CONSTRUCTION, INC, Plaintiff, vs THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term Amount due $62,335.00 Interest $789.00 Atty's Comm. and Costs $40.00 TO THE PROTHONOTARY OF SAID COURT: ISSUE WRIT OF EXECUTION IN THE ABOVE MANNER, (1) Directed to the Sheriff of CeMftEftt*ND /_ E/Xi g County, Pennsylvania; (2) against K&I Contractors, Inc. Defendants(s) and (3) and against PNC Bank, 1120 South Cedar Crest Blvd., Allentown, PA 18103 and Garnishee(s), Lafayette Ambassador Bank, 4127 Tilghman St., Allentown, PA 18104 (4) and index this writ (a) against K&I Contractors, Inc. Defendants(s) and (b) against PNC Bank, 1120 South Cedar Crest Blvd., Allentown, PA 18103 and Garnishee (s) and Lafayette Ambassador Bank, 4127 Tilghman St., Allentown, PA 18104 as a lis pendens against the real property of the defendant(s) in the name of the Garnishee(s) as follows : (Specifically describe property and note any specific direction to Sheriff) (Furnish 4 copies for real es*V 1 e?) Please attach/garnish/levy in the following order: 3 1 All bank accounts held by Garnishees for Defendant; fn4w =-n rn 2. All personal property located at 801 E. Fairmont St., Allentown, PA 18109; 3 All l Wit- -rn . rea property located at 801 E. Fairmont St., Allentown, PA 18109. tV Ste` r z a ' -n o nz s zc"a M (5) Exemption has (not) been waived. ?.. y ® Dated -AJV c y.so? a#y 4 ?-,oo 83. 68 g1?, 9FAot 14. D OD u y S?QQO.IQ S•` " A7 dC> 4 h a7S.bu`' " %Li. CFO -C APlaintiff(s) Print Name: PETER M. GOOD„ ESQ. Address: 4431 N. FRONT ST., HARRISBURG, PA 17110 •? Attorney for: PLAINTIFF Jra,M Rlre6 Telephone: C ( Supreme Court ID No. X84?8 (717) 234-2401 64316 I 1 1,;4,S 9,- -7?zv, . c4 MAJOR EXEMPTIONS UNDER PENNSYLVANIA AND FEDERAL LAW 1. $ 300 statutory exemption 2. Bibles, school books, sewing machines, uniforms and equipment 3. Most wages and unemployment compensation 4. Social Security benefits 5. Certain retirement funds and accounts 6. Certain veteran and armed forces benefits 7. Certain insurance proceeds 8. Such other exemptions as may be provided by law VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 07-6274 Civil Term THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. CLAIM FOR EXEMPTION To the Sheriff. I, the above-named defendant, claim exemption of property from levy or attachment: (1) From my personal property in my possession which has been levied upon, (a) I desire that my $ 300 statutory exemption be: [ ] (i) set aside in kind (specify property to be set aside in kind): [ ] (ii) paid in cash following the sale of the property levied upon; or (b) I claim the following exemption (specify property and basis of exemption) (2) From my property that is in the possession of a third party, I claim the following exemptions: (a) my $ 300 statutory exemption: [ ] in cash; [ ] in kind (specify property): (b) Social Security benefits on deposit in the amount of $ ; (c) other (specify amount and basis of exemption): I request a prompt court hearing to determine the exemption. Notice of the hearing should be given to me at: (address and telephone number). I verify that the statements made in this Claim for Exemption are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat. § 4904 relating to unsworn falsification to authorities. Date: (Defendant) THIS CLAIM TO BE FILED WITH THE OFFICE OF THE SHERIFF OF CUMBERLAND COUNTY: Cumberland County Sheriff Cumberland County Courthouse 1 Courthouse Square Room 303 Carlisle, PA 17013 VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 07-6274 Civil Term THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. WRIT OF EXECUTION NOTICE This paper is a Writ of Execution. It has been issued because there is a judgment against you. It may cause your property to be held or taken to pay the judgment. You may have legal rights to prevent your property from being taken. A lawyer can advise you more specifically of these rights. If you wish to exercise your rights, you must act promptly. The law provides that certain property cannot be taken. Such property is said to be exempt. There is a debtor's exemption of $ 300. There are other exemptions which may be applicable to you. Attached is a summary of some of the major exemptions. You may have other exemptions or other rights. If you have an exemption, you should do the following promptly: (1) Fill out the attached claim form and demand for a prompt hearing. (2) Deliver the form or mail it to the Sheriffs Office at the address noted. You should come to court ready to explain your exemption. If you do not come to court and prove your exemption, you may lose some of your property. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., K&I CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 07-6274 Civil Term CIVIL ACTION - LAW : JURY TRIAL DEMANDED WRIT OF EXECUTION AGAINST DEFENDANT K&I CONTRACTORS. INC. To the Sheriff of Cumberland County: To satisfy the judgment, interest and costs against K&I Contractors, Inc., Defendant: (1) you are directed to levy upon the property of the Defendant and to sell its interest therein; (2) you are also directed to attach the property of the Defendant not levied upon in the possession of LAFAYETTE AMBASSADOR BANK, 4127 Tilghman Street, Allentown, PA 18104 as garnishee of certain bank accounts; in the possession of PNC BANK, 1120 South Cedar Crest Blvd., Allentown, PA 18103 as garnishee of certain bank accounts and to notify the garnishees that: (a) an attachment has been issued; (b) the garnishees are enjoined from paying any debt to or for the account of the Defendants and from delivering any property of the Defendants or otherwise disposing thereof. (3) if property of the Defendant not levied upon and subject to attachment is found in the possession of anyone other than a named garnishees, you are directed to notify him that he has been added as a garnishee and is enjoined as above stated. (continued on following page.) Amount due $62,335.00 Interest from Dec. 8, 2010 (6% legal rate): $789.00 Costs to be Added: Service of Complaint: $16.00 Writ of Execution (Franklin County Sheriff): $24.00 Total: $63"16Q.00 PROTHONOTARY SEAL OF THE COURT BY: DEPUTY SMIGEL, ANDERSON & SA V KS LLP ATTORNEYS AT LAW February 28, 2011 David Buell, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 PETER M. GOOD, ESQUIRE PHONE: (717) 234-2401 TOLL FREE: 1-800-822-9767 FACSIMILE (717) 234-3611 EMAIL: pgood@sasllp.com www.sasllp.com File No. 8470-5-7 Re: Varish Construction, Inc. v. The Commons at Parker Springs, Inc., et al. Docket No. 07-6274 Dear Mr. Buell: Enclosed for filing, please find an original and four (4) copies of a Praecipe for Writ of Execution against K&I Contractors, Inc. and an original and four (4) copies of a Praecipe for Writ of Execution for The Commons at Parker Springs, Inc. in the above- ferenced matter. The Praecipe for Writ of Execution's should be directed to 1g County Sherif . Please file the original, time-stamp the remaining copies, and return them to me with the self-addressed stamped envelope. Thank you for you attention in this matter. Should you have any questions or concerns regarding this matter, please do not hesitate to contact me. Sincerely, Peter M. Good Enclosures PMG/hed cc: Michael Reed, Esquire Varish Construction, Inc. River Chase Office Center, 3rd Floor, 4431 North Front Street, Harrisburg, Pennsylvania 17110-1778 A PENNSYLVANIA LIMITED LIABILITY PARTNERSHIP FILED-OFF. Rr SMIGEL, ANDERSON & SACKS, L.L.P. C; THE PR0T? Peter M. Good, Esquire River Chas Office Center pgood@sasllp.com 4431 North ront Street, 3 d Floor 29 11 APR 25 PH tI' ' Darryl J. Liguori, Esquire Harrisburg, A 17110-1778 dliguori@sasllp.com (717) 234-2 O1 CUMBERLAND C f Attorneys for Plaintiff L d VARISH CONSTRUCTION, INC., Plaintiff, V. THE CO MMONS AT PARKER SPRING S, INC., K&I CONTR ACTORS, INC., and PSI PU MPING SOLUTIONS, INC., Defendants. acknowledge service made by the Lehigh County Sheriff of Plaintiffs Writ of GARNISHEE LAFAYETTE AMBASSADOR BANK TO THE PROTHNOTARY: Exhibit I'A". Date: as to Garnishee LAFAYETTE AMBASSADOR BANK, attached hereto and marked IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term : CIVIL ACTION - LAW JURY TRIAL DEMANDED Respectfully submitted, SMIGEL, ANDERSON & SACKS, LLP 25, 2011 By: /A- Peter M. Good, uire D #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 Attorneys for Plaintiff ????'?? f 975: e?Z ?Z•LrG WESLEY Chief M. t1A Deputy i{AMP gLf'?0- S ?1J Put County of Lehigh Courthouse - 5th & Hamilton Streets 455 W. Hamilton Street Allentown, PA 18101-1614 Phone (610) 782-3175 • Fax 820-3368 W. RE: 20111-0397 ?VARISH CONSTRUCTION VS THE OMMONS AT PARKER SPRINGS Dear Sir: KENNETH J. COIA Captain CHRISTINA MANELSKI Office Manager LORE'TTA-Z. PIIRSELL Reel Estate Supervisor RICHARD H. SOMACH, Esq.. solicitor Please be advised that the garnishee(s) in the above captioned matter was serve on 01-Apr-2011. After nswers are filed by the garnishee(s), please notify this office to discon inue the matter. Sincerely, Ronald W. Rossi, SHERIFF By : l - ?Z//? 11 5 t # t-'i ?,-l.?1'II'#P ?i •f ?, i'i _FfaCr KE-t? JI•'F.L ?`I#.I.`•? •:. J"_# - ; #:. F #i i I:'- # 1.v (f f RA N#`. S:1 A L L, _ # TO W ig f ,, f i._. 11 ? r. u r 1-1? _.. .IL ... t 41 L. D 'A l" 17' 0 N 1) 1) _1 I I "E n P P I— .n., t .. ..,. _ _ -1-1011 OF C •-• ., N ? Ste. - t .._ s 4 .. ? .._ ti:. 4i. 1 i T. is 57 i. Li VR a n I r`I. >'; `IC.IW t:I P1 .a, r;5:l:;at:, a 4D l :`i T E::. °L 1 ME .. . .... F U L" (? ?.._ _.. 4. R, rfE::.R L }::. t,,_f i !: irk i'!1CiR 1 ;-I-f:? r?t.t $' i:`#,. # 1 "I' V_ Ft._' '. ` C'1i: !.f 4J4`•! ..?..r 11 ! i. # f # I I ? ? ..x #a. ?_.... ?: i - F f #.... ? 1..:. l # i . r?+sf F F :; ?' f 3 Y•:i 1-`? ........... 1-4 VARISIf I CONSTRUCTION, INC., i Plaintiff, V. THE COMMONS AT PARKER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term SPRINGS, INC., K&I CIVIL ACTION - LAW CONTRACTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE Peter M. Good, Esquire, attorney for the Plaintiff in the above-captioned matter, certify that I this day served a copy of the foregoing Praecipe upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Pennsylvania, and addressed as follows: Michael D. Reed, Esquire Mette, Evans, and Woodside 3401 N. Front Street, P.O. Box 5950 Harrisburg, PA 17110 Attorney for Defendant Date: SMIGEL, ANDERSON & SACKS, L.L.P. 25, 2011 By: - ?O/ Peter M. ood, Esquire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff SMIGEL, NDERSON & SACKS, L.L.P River Chas Office Center 4431 North Front Street, 3`d Floor Harrisburg, PA 17110-1778 (717)234-2 01 ????Ak Peter M. Good, Esquire tt'. pgood@sasllp.com 25 PH 4. 02 Darryl J. Liguori, Esquire dliguori@sasllp.com -11MBERLANO_ COUNTY Attorneys for Plaintiff VARIS" CONSTRUCTION, INC., Plaintiff, V. THE CO MMONS AT PARKER SPRING S, INC., K&I CONTR ACTORS, INC., and PSI PU MPING SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-6274 Civil Term CIVIL ACTION - LAW ' JURY TRIAL DEMANDED PRAECIPE TO DISSOLVE WRIT OF EXECUTION AS TO GARNISHEE LAFAYETTE AMBASSADOR BANK TO THE PROTHNOTARY: y Dissolve Plaintiffs Writ of Execution as to Garnishee LAFAYETTE AMBASSADOR BANK only in the above-captioned matter. Respectfully submitted, SMIGEL, ANDERSON & SACKS, LLP Date 18, 2011 By: ?A &V Peter M. Good, Esquire ID #64316 Darryl J. Liguori, Esquire ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 Attorneys for Plaintiff PCB * S ??? Nlp) t!1 Cy?# ??aso ?? a<,$y°9 VARIS CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. No. 07-6274 Civil Term THE COMMONS AT PARKER SPRINGS, INC., K&I CIVIL ACTION - LAW CONT CTORS, INC., and PSI PUMPING SOLUTIONS, INC., JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE that I as to copy o. Pennsyl , Peter M. Good, Esquire, attorney for the Plaintiff in the above-captioned matter, certify S day served a copy of the foregoing Plaintiffs Praecipe to Dissolve Writ of Execution iishee Lafayette Ambassador Bank upon the person(s) indicated below by depositing a the same in the United States Mail, first class, postage prepaid, at Harrisburg, and addressed as follows: Michael D. Reed, Esquire Mette, Evans, and Woodside 3401 N. Front Street, P.O. Box 5950 Harrisburg, PA 17110 Attorney for Defendant Date SMIGEL, ANDERSON & SACKS, L.L.P. &/_?'W 1 18, 2011 By. Peter M. Good, squire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 AOPC 1014 Rev.05/06/2011 Karen Reid Bramhleti, Esq. Pennsylvania Judicial Center Prothonotary Middle District P,p. Box 62435 Milan K. Mrkohrad, Esq. 601 Commonwealth Avenue, Suite 1600 Deputy Prothonotary Harrisburg, PA 17106-2435 May 6, 2011 (717) 772-1294 www.superior.court state.pa.us NOTICE OF DISCONTINUANCE OF ACTION RE: Varish Const. v. Commons at Parker Springs 398 MDA 2011 Appeal of: The Commons at Parker Springs, Inc and K&I Contractors, Inc. Initiating Document: Notice of Appeal Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 2007-06274 The above-captioned matter has been marked "Discontinued" with this court. Certification is being sent to the lower court. Attorney Name Participant Name Participant Type Michael Donahoo Reed, Esq. The Commons at Parker Springs, Inc and K&I Appellant Contrac Peter M. Good, Esq. Varish Construction, Inc. Appellee /rh r...n r-? ..:..r.3 cc: Buell, David D., Prothonotary c- C The Honorable Merle L. Ebert Jr., Judge o Peter M. Good, Esq. - c ~ cn r ? =c ?; ?. as E5 ' Karen Reid Bramblett, Esq. Prothonotary Milan K. Mrkobrad, Esq. Deputy Prothonotarv Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Middle District May 6, 2011 RE: Varish Const. v. Commons at Parker Springs 398 MDA 2011 Trial Court Docket No: 2007-06274 Dear David D. Buell: Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior.court.state. Pa. us , received from the Superior Court of Pennsylvania, Middle District Office, the certificate of discontinuance of the court, in the above entitled case. Return to- Superior Court of Pennsylvania Office of the Prothonotary Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 7177721294 /rh > C-~- C:= a IN THE SUPERIOR COURT OF PENNSYLVANIA SITTING IN HARRISBURG No.398 MDA 2011 Varish Construction, Inc. : Appeal from the Order Entered V. :Court of Common Pleas The Commons at Parker Springs, Inc., K&I Contractors, Inc. and PSI Pumping Solutions, Inc. :for the county of Cumberland :No. 2007-06274 May 6, 2011 - The above appeal is hereby withdrawn and discontinued by order of: Michael D. Reed, Esq. Attorney for Appellant May 6, 2011 - DISCONTINUED TRUE COPY FROM RECORD IN TESTIMONY WHEREOF, I have hereunto set my hand and the seal of said Court, at Harrisburg, this 6th day of May, 2011 Deputy Prothonotary