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HomeMy WebLinkAbout07-6368CENTRAL PENN ASPHALT, INC.,: 3701 G. Derry Street IN THE COURT OF COMMON PLEAS Harrisburg, PA 17111 CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. Orl - (o3(og vs. Civil Action LCL MANAGEMENT 1001 Rupley Road Camp Hill, PA 17011 Defendant PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Civil jertA Please issue a Writ of Summons in the above-captioned matter. Date: Antho W. Parker Att Qrt ID 81251 KELLY, PARKER & COHEN, LLP 300 North Second Street, 10d' Floor Harrisburg, PA 17101 717-920-2220 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT: You are notified that the above-named Plaintiff has commenced an action against you. /.5/ P. Prothonotary Date: to ?30 ?a? BY J?,? r Deputy c -t 56 8 gg0??? cA3 CENTRAL PENN ASPHALT, INC.,: IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. Civil Action LCL MANAGEMENT, : No. 07-6368 Defendant 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 BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 Respectfully submitted, 4 tho W. Parker, Esquire .D. No. 81251 KELLY, PARKER & COHEN LLP Commerce Towers - 10'' Floor 300 North Second Street Harrisburg, PA 17101 (717) 920-2220 FAX (717) 920-2370 Dated: November 29, 2007 aparkern Tc-law com Counsel for Central Penn Asphalt, Inc. CENTRAL PENN ASPHALT, INC.,: IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. Civil Action LCL MANAGEMENT, No. 07-6368 Defendant AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n 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 acci6n 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 reclamaci6n 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 BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 CENTRAL PENN ASPHALT, INC.,: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. Civil Action LCL MANAGEMENT, No. 07-6368 Defendant COMPLAINT 1. Plaintiff, Central Penn Asphalt, Inc. ("Central Penn Asphalt"), is a Pennsylvania corporation maintaining an office and place of business located at 3701 Derry Street, Suite G, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant, LCL Management is a Pennsylvania corporation with an office and/or place of business located at 1001 Rupley Road, Camp Hill, Cumberland County, Pennsylvania. 3. Central Penn Asphalt entered into an agreement with LCL Management to provide, at the special instance and request of LCL Management, snow and ice removal materials and services. 4. Pursuant to the aforementioned agreement, and at the special instance and request of LCL Management, Central Penn Asphalt performed snow and ice removal services and applied roadway salt and cinder to LCL Management's real property on February 13, 2007, February 14, 2007, February 15, 2007, February 19, 2007, March 7, 2007, March 16, 2007, March 17, 2007, and December 16, 2005. The quantities and description of work performed on said dates are more fully set forth in the invoices attached hereto and marked as Exhibit A (hereinafter referred to as the "Invoices"). 5. LCL Management received and accepted the services and materials as set forth in the Invoices. 6. The price for the aforesaid services and materials that Central Penn Asphalt charged and LCL Management agreed to pay are set forth in the invoices. 7. Although demands have been made, LCL Management, has failed and refused, and continues to fail and refuse to make payments on the balances due to Central Penn Asphalt, which currently totals $38,283.75. 8. The monies due and owing to Central Penn Asphalt are wrongfully withheld by LCL Management. COUNTI BREACH OF CONTRACT 9. Central Penn Asphalt hereby incorporates by reference the allegations contained in Paragraphs 1 through 8 above as if set forth herein at length. 10. By its actions as aforesaid, LCL Management is in breach of its contract with Central Penn Asphalt, thereby causing damages in the amount of $38,283.75, plus interest, costs, penalties and reasonable attorney's fees in the amount of $7,656.75 ($38,283.75 x.20). 11. Pursuant to Section 512 of the Contractor and Subcontractor Payment Act, 73 P.S. § 501, et. seq., Central Penn Asphalt is entitled to recover a penalty of one percent (1 %) per month for all payments wrongfully withheld. 12. Pursuant to Section 512(b) of the Contractor and Subcontractor Payment Act, 73 P.S. § 501, et. seq., Central Penn Asphalt is entitled to reasonable attorney's fees in the amount of $7,656.75, and expenses. WHEREFORE, the Plaintiff, Central Penn Asphalt, Inc., respectfully requests this Honorable Court enter judgment in its favor and against the Defendant LCL Management, in the amount of $38,283.75, plus interest, a penalty of 1% per month, reasonable attorney's fees in the amount of $7,656.75, and expenses. ALTERNATIVE COUNT II UNJUST ENRICHMENT/CONTRACT IMPLIED IN LAW 13. Central Penn Asphalt hereby incorporates by reference the allegations contained in Paragraphs 1 through 12 above as if set forth herein at length. 14. LCL Management knew or should have known that the labor and materials provided by Central Penn Asphalt would benefit LCL Management. 15. LCL Management knew or should have known that Central Penn Asphalt was relying on its contract with LCL Management and/or the representations made or directions given by agents, servants, and/or employees of LCL Management in that Central Penn Asphalt expected to be paid in full for the work performed by the Plaintiff, Central Penn Asphalt, Inc., and the materials provided. 16. LCL Management cannot passively receive the benefits of Central Penn Asphalt's work and materials and not pay for the benefits received for such work and materials. 17. LCL Management was unjustly enriched in that it received the benefits or value of the materials provided and the work performed by Central Penn Asphalt and for which LCL Management did not pay in full. 18. It would be unconscionable for LCL Management to retain the benefits of the materials and labor provided without compensating Central Penn Asphalt. 19. The fair market value of the work and the materials provided by the Central Penn Asphalt to LCL Management, which remains unpaid is $38,283.75 and Central Penn Asphalt has been damaged in said amount as a result of LCL Management's failure to pay the said sum. 20. Pursuant to Section 512(a) of the Contractor and Subcontractor Payment Act, 73 P. S. § 501, et. seq., Central Penn Asphalt is entitled to recover a penalty of 1% per month for all payments wrongfully withheld. 21. Pursuant to Section 512(b) of the Contractor and Subcontractor Payment Act, 73 P.S. § 501, et. seq., Central Penn Asphalt is entitled to reasonable attorney's fees in the amount of $7,656.75 ($38,283.75 X.20), and expenses. WHEREFORE, the Plaintiff, Central Penn Asphalt, Inc., respectfully requests this Honorable Court enter judgment in its favor and against LCL Management in the amount of $38,283.75, plus interest, a penalty of 1% per month, reasonable attorney's fees in the amount of $7,656.75, and expenses. ALTERNATIVE COUNT II CONTRA- IMPLIED IN FACT 22. Central Penn Asphalt hereby incorporates by reference the allegations contained in Paragraphs 1 through 21 above as if set forth herein at length. 23. Central Penn Asphalt and LCL Management have agreed upon the obligations to be incurred by each party in connection with the work described above, but their intentions were not expressed in words and are, instead, inferred from their actions or conduct in light of the surrounding circumstances, including their course of dealings. 24. A contract implied in fact exists between Central Penn Asphalt and LCL Management for the labor and materials provided and LCL Management is in breach thereof by causing Central Penn Asphalt to sustain losses or damages in the amount of $38,283.75. 25. Pursuant to Section 512(a) of the Contractor and Subcontractor Payment Act, 73 P. S. § 501, et. seq., Central Penn Asphalt is entitled to recover a penalty of l% per month for all payments wrongfully withheld. 26. Pursuant to Section 512(b) of the Contractor and Subcontractor Payment Act, 73 P.S. § 501, et. seq., Central Penn Asphalt, Inc. is entitled to reasonable attorney's fees in the amount of $7,656.75 ($38,283.75 x.20), and expenses. WHEREFORE, the Plaintiff, Honorable Court to enter judgment in its favor and against the Defendant LCL Central Penn Asphalt, Inc., respectfully requests this Management, in the amount of $38,283.75, plus interest, a penalty of 1 % Per month, reasonable attorney's fees in the amount of $7,656.75, and expenses. Respectfully submitted, AgeN . 251 KELL Y, PARKER & COHEN, LLP Commerce Towers, 10th Floor 300 North Second Street Harrisburg, PA 17101 717-920-2220 a arker k c-law.com Dated: November 29, 2007 VERIFICATION I, JAMES A. GRIFFITH, President of Central Penn Asphalt, Inc., hereby state that I have read the foregoing Complaint, which has been drafted by counsel. The factual statements contained therein are true and correct to the best of my information, knowledge, and belief, although the language is that of counsel and, to the extent that the content of the foregoing document is that of counsel, I have, relied upon counsel in making this Verification. This statement is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. 0-7 Date James A. Gnffi resident r Central Penn Asphalt, Inc. EXHIBIT A CENTRAL PENN INVOICE DATE INVOICE # 2/16/2007 7068 BILL TO: LCL Management Attn: Sherri Hockley 1001 Rupley Road Camp Hill, PA 17011 WORK DATE DUE DATE TERMS 2/16/2007 3/18/2007 NET 30 DAYS Job # Storm 5 2/13-2/19/07 DESCRIPTION OF WORK Storm 5--5 inches of snow, 1 inch of sleet and several hours of freezing rain. Thursday 2/15/2007 Large Plow 14 hours @ $95 Per Hour Backhoe-Bucket 20 hours @ $90 Per Hour Wheel Loader 7.5 hours @ $135 Per Hour Friday 2/16/2007 Backhoe-Bucket 17.5 hours @ $90 Per Hour Wheel Loader 10 hours @ $135 Per Hour Note: We did not finish the job. Personnel asked that we stop because of time and money all ready spent. TOTAL AMOUNT DUE LOCATION P.O. # Village Knoll Snow Removal QUANTITY RATE AMOUNT 14 95.00 1,330.00 20 90.00 1,800.00 7.5 135.00 1,012.50 17.5 90.00 10 135.00 1,575.00 1,350.00 $7,067.501 Balance Due $7,067.50 3701 G Derry Street Harrisburg, PA 17111 717-564-5630 Fax: 717-564-9064 CeNTRAL PENN Storm 5 2/13-2/18/07 DESCRIPTION OF WORK Storm 5-5 inches of snow, 1 inch of sleet and several hours of freezing rain. Tuesday 2/13/2007 Small Plow 15.75 hours @ $90 Per Hour Large Plow 19 hours @ $95 Per Hour Backhoe-Bucket 5 hours @ $90 Per Hour Wheel Loader 6 hours @ $135 Per Hour Roadway Salt and Cinder Flat Rate AM applications Wednesday 2/14/2007 Small Plow 4.75 hours @ $90 Per Hour Large Plow 8 hours @ $95 Per Hour Backhoe-Bucket 24 hours @ $90 Per Hour Wheel Loader 6 hours @ $135 Per Hour Roadway Salt and Cinder Flat Rate AM Application Thursday 2/15/2007 Small Plow 2.5 hours @ $90 Per Hour Large Plow 4 hours @ $95 Per Hour Backhoe-Bucket 17 hours @ $90 Per Hour Wheel Loader 8.5 hours @ $135 Per Hour Roadway Salt and Cinder Flat Rate PM Application Friday 2/16/2007 Backhoe-Bucket 6 hours @ $90 Per Hour INVOICE DATE INVOICE # 2/19/2007 7065 BILL TO: LCL Management Attn: Sherri Hockley 1001 Rupley Road Camp Hill, PA 17011 Uptown Plaza Snow Removal QUANTITY I RATE I AMOUNT 15.75 90.00 1,417.50 19 95.00 1,805.00 5 90.00 450.00 6 135.00 810.00 1 650.00 650.00 4.75 90.00 427.50 8 95.00 760.00 24 90.00 2,160.00 6 135.00 810.00 1 650.00 650.00 2.5 90.00 225.00 4 95.00 380.00 17 90.00 1,530.00 8.5 135.00 1,147.50 1 650.00 650.00 61 90.00 540.00 TOTAL AMOUNT DUE Balance Due Page 1 3701 G Derry Street Harrisburg, PA 17111 717-564-5630 Fax: 717-564-9064 Job # I LOCATION . CENYRAL PENN INVOICE 22/199//22000077 ATE INVOICE # 7065 BILL TO: LCL Management Attn: Sherri Hockley 1001 Rupley Road Camp Hill, PA 17011 Page 2 3701 G Derry Street Harrisburg, PA 17111 717-564-5630 Fax: 717-564-9064 CENYRAL PENN INVOICE DATE INVOICE # 3/7/2007 7084 BILL TO: LCL Management Attn: Sherri Hockley 1001 Rupley Road Camp Hill, PA 17011 3701 G Derry Street Harrisburg, PA 17111 717-564-5630 Fax: 717-564-9064 WORK DATE DUE DATE TERMS P.O. # 3/7/2007 4/6/2007 NET 30 DAYS CENTRAL PENN INVOICE DATE INVOICE # 3/16/2007 7096 BILL TO: LCL Management Attn: Sherri Hockley 1001 Rupley Road Camp Hill, PA 17011 Job # Strom 8 3/16-3/17/07 DESCRIPTION OF WORK Snow removal services for storm on 3/16/2007 totaling 9 inches. 13/16/2007 Small Plow 28 hours @ $90 Per Hour Large Plow 14.25 hours @ $95 Per Hour Backhoe-Bucket 20 hours @ $90 Per Hour Roadway Salt and Cinder Flat Rate 1 applications 3/17/2007 Small Plow 4 hours @ $90 Per Hour Roadway Salt and Cinder Flat Rate AM Application LOCATION Uptown Plaza Snow Removal QUANTITY RATE AMOUNT 28 90.00 2,520.00 14.25 95.00 1,353.75 20 90.00 1,800.00 1 650.00 650.00 4 90.00 360.00 650.00 650.00 TOTAL AMOUNT DUE Balance Due $7,333.75 $7,333.75 3701 G Derry Street Harrisburg, PA 17111 717-564-5630 Fax: 717-564-9064 CENTRAL PENN INVOICE DATE INVOICE # 12/16/2005 6382 BILL TO: LCL Management Attn: Sherri Hockley 1001 Rupley Road Camp Hill, PA 17011 WORK DATE DUE DATE TERMS P.O. # 12/16/2005 1/15/2006 Net 30 Job # LOCATION Village Knoll Snow Removal DESCRIPTION OF WORK QUANTITY RATE AMOUNT 12/16/05 0 0.00 Small Plow 8 hours @ $85 Per Hour 8 85.00 680.00 Large Plow 13 hours @ $90 Per Hour 13 90.00 1,170.00 Backhoe-Bucket 20 hours @ $85 Per Hour 20 85.00 1,700.00 Spreader Truck 2 Hours @ $90 Per Hour 2 90.00 180.00 Salt and Cinders 4 Tons @ $125 Per Ton 4 125.00 500.00 Pure Salt 9 Tons @ $185 Per Ton 9 185.00 1,665.00 TOTAL AMOUNT DUE $5,,,895.00 Balance Due $5,895.00 3701 G Derry Street Harrisburg, PA 17111 717-564-5630 Fax: 717-564-9064 CERTIFICATE OF SERVICE On this 29th day of November, 2007, I, Barbara J. Cusick, a legal secretary, with the law firm of Kelly, Parker & Cohen LLP, hereby certify that I have served this day a true and correct copy of the foregoing Complaint by depositing the same in the United States Mail, first class, postage prepaid at Harrisburg, Pennsylvania, addressed to those persons and addresses indicated below: LCL Management C/O Richard S. Friedman, Esquire Friedman & King, P.C. 600 North Second Street, 5th Floor P. O. Box 984 Harrisburg, PA 17108 Barb a J. Cusick - --ri CD ?r • CENTRAL PENN ASPHALT, INC.,: 3701 G. Derry Street IN THE COURT OF COMMON PLEAS Harrisburg, PA 17111 CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. n -?-G36? 6t v, I 1-e rr-L vs. Civil Action LCL MANAGEMENT 1001 Rupley Road Camp Hill, PA 17011 Defendant ACCEPTANCE OF SERVICE I accept service of the Writ of Summons on behalf of LCL Management and certify that I am authorized to do so. Date Richard S. Friedman, Esquire Frf'edman & King, P.C. 600 North Second Street, 5t` Floor P.O. Box 984 Harrisburg, PA 17108 0 C t _ - ? ?- i '1? y"t"i ?:.... r ?. l.'`' t?..? a 4=1 ^?; i t / ...- ^ "r John J. Miravich, Esquire Fox Rothschild LLP 747 Constitution Drive, Suite 100 Exton, PA 19341 (610) 458-3128 - Direct (610) 458-7337 - Fax jiravich@foxrothschild.com Attorney ID No. 56124 Attorney for Defendant/Counterclaim Plaintiff LCL Management CENTRAL PENN ASPHALT, INC., Plaintiff VS. LCL MANAGEMENT, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action No. 07-6368 NOTICE TQ DEFEND TO: Central Penn Asphalt, Inc. 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 of any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Of the Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (800) 990-9108 EX I 401553v l 01/15/08 John J. Miravich, Esquire Fox Rothschild LLP 747 Constitution Drive, Suite 100 Exton, PA 19341 (610) 458-3128 - Direct (610) 458-7337 - Fax jmiravich@foxrothschild.com Attorney ID No. 56124 CENTRAL PENN ASPHALT, INC., Plaintiff VS. LCL MANAGEMENT, Defendant Attorney for Defendant/Counterclaim Plaintiff LCL Management IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action No. 07-6368 NOTICE TQ PLEAD TO: Anthony W. Parker, Esquire Kelly, Parker & Cohen, LLP Commerce Towers, 10th Floor 300 North Second Street Harrisburg, PA 17101 You are hereby notifed to file a written response to the enclosed Answer, New Matter and Counterclaim of Defendant, LCL Management, within twenty (20) days from service hereof or a judgment may be entered against you. FOX RQTHSCHILD LLP By: Date: January 15, 2008 ado J. Mira c , Esquire ttorney I.D o. 56124 747 Constitution Drive, Suite 100 Exton, PA 19341-0673 (610) 458-7500 Attorneys for Defendant/ Counterclaim Plaintiff LCL Management EX I 4015530 01/15/08 John J. Miravich, Esquire Fox Rothschild LLP 747 Constitution Drive, Suite 100 Exton, PA 19341 (610) 458-3128 - Direct (610) 458-7337 - Fax jiravich@foxrothschild.com Attorney ID No. 56124 CENTRAL PENN ASPHALT, INC., Plaintiff VS. LCL MANAGEMENT, Defendant To: Central Penn Asphalt, Inc. Attorney for Defendant/Counterclaim Plaintiff LCL Management IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action No. 07-6368 ANSWER, NEW MATTED AND COUNTERCLAIM Defendant LCL Management. ("Defendant'), by and through its attorneys, John J. Miravich, Esquire and Fox Rothschild LLP, hereby Answers the Complaint of Plaintiff Central Penn Asphalt, Inc. ("Plaintiff'), and asserts New Matter and Counterclaim as follows: ANSWER, NEW MATTER, AND COUNTERCLAIM 1. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. 2. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. 3. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies that Plaintiff entered into the agreement with Defendant, EX I 401553v l 01/15/08 3 at least as it is described by Plaintiff, to provide snow and ice removal materials and services. Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegations were fully set forth herein. 4. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies that Plaintiff performed snow and ice removal services and applied roadway salt and cinder to LCL Management's real property as described. Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegations were fully set forth herein. 5. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. If the Court requites a response, the allegations are specifically denied. Defendant specifically denies that Defendant received and accepted the services and materials as set forth in the invoices. Defendant i? corporates the allegations set forth in its New Matter and Counterclaim as if those allegations were fully set forth herein. 6. Denied. The allegations contained! in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies the price for the aforesaid services and materials that Central Penn Asphalt charged and LCL Management agreed to pay are set forth in the invoices. Defendant incorporates the allegations set forth in', its New Matter and Counterclaim as if those allegations were fully set forth herein. 7. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically i denied. Defendant specifically denies Defendant has failed and refused to make payments that BX1 401553v1 01/15/08 4 were purportedly due to Plaintiff. Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegations Were fully set forth herein. 8. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies it wrongfully withheld monies. Defendant incorporates the allegations set forth in its New Matter and Cojunterclaim as if those allegations were fully set forth herein. COOT I BREACH OF CONTRACT I 9. Defendant incorporates each and every prior paragraph of its answer as if fully set forth herein. 10. Denied. The allegations contained', in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies it breached' any contractor that it caused any damages to Plaintiff. Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegations were fully set forth herein. 11. Denied. The allegations contained'in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies that the Contractor and Subcontractor Payment Act ("Subcontractor Act") is applicable to the allegations made by Plaintiff. To the contrary, the Subcontractor Act is not applicable to the allegations made by Plaintiff and no alleged damages, penalties or counsel fees are recoverable under the Subcontractor Act. Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegations were fully set forth herein. EX1401553v101/15/08 5 12. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies that the Subcontractor Act is applicable to the allegations made by Plaintiff. To the contrary, the Subcontractor Act is not applicable to the allegations made by Plaintiff and no alleged damages, penalties or counsel fees are recoverable under the Subcontractor Act. Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegations were fully set forth herein. WHEREFORE, Defendant requests that the Court dismiss Plaintiff's Complaint with prejudice and award Defendant costs and counsel fees (at common law and under the Subcontractor Act, if applicable) and any other relief the Court deems appropriate. ALTERNATIVE COUNT II UNJUST ENRICHMENT/CONTRACT IMPLIED IN LAW 13. Defendant incorporates each and every prior paragraph of its answer as if fully set forth herein. 14. Denied. The allegations contained'!, in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies that the labor and materials purportedly provided by Plaintiff benefited Defendant. Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegations were full set forth herein. 15. Denied. The allegations contamedjln this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies that PlaintiO relied on any purported representations made or directions by Defendant to Plaintiff. Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegati ns were fully set forth herein. EX I 401553v 1 01/15/08 6 16. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies that it has Massively received any benefits from Plaintiff. Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegations were fully set forth herein. 17. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies that it has been unjustly enriched in any way. Defendant denies that it has passively received any benefits from Plaintiff. Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegations were fully set forth herein. 18. Denied. The allegations contained) in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies that it has passively received any benefits from Plaintiff. Defendant incorporates the allegations set forth inl its New Matter and Counterclaim as if those allegations were fully set forth herein. 19. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies that the work and the materials purportedly provided by Plaintiff had any value or that Plaintiff has been damaged in any way. Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegations were fully set forth herein. EX I 401553v l 01/15/08 7 20. Denied. The allegations which no response is required. If the Court req denied. Defendant specifically denies that the made by Plaintiff. To the contrary, the S in this paragraph are conclusions of law to a response, the allegations are specifically Act is applicable to the allegations Act is not applicable to the allegations made by Plaintiff and no alleged damages, penalt es or counsel fees are recoverable under the Subcontractor Act. Defendant incorporates the al egations set forth in its New Matter and Counterclaim as if those allegations were fully set forth herein. 21. Denied. The allegations containedlll in this paragraph are conclusions of law to which no response is required. If the Court a response, the allegations are specifically denied. Defendant specifically denies that the made by Plaintiff. To the contrary, the Act is applicable to the allegations Act is not applicable to the allegations made by Plaintiff and no alleged damages, penalties or counsel fees are recoverable under the Subcontractor Act. Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegations were fully sett forth herein. WHEREFORE, Defendant requests that th Court dismiss Plaintiff's Complaint with prejudice and award Defendant costs and counsel *•ees (at common law and under the Subcontractor Act, if applicable) and any other rell?ef the Court deems appropriate. ALTERNATIVk COUNT II 22. Defendant incorporates each and every prior paragraph of its answer as if fully set I forth herein. 23. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. If the Court requir?s a response, the allegations are specifically denied. Defendant specifically denies that it agreed upon the obligations to be incurred by each party in connection with any work to be performed by Plaintiff. Defendant incorporates the II EX I 401553v l 01/15/08 8 allegations set forth in its New Matter and Counterclaim as if those allegations were fully set forth herein. 24. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. If the Court requi?es a response, the allegations are specifically denied. Defendant specifically denies that a contract implied in fact exists between the parties or that Defendant breached any purported contract. (Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegations were fully set forth herein. 25. Denied. The allegations which no response is required. If the Court denied. Defendant specifically denies that the made by Plaintiff. To the contrary, the S made by Plaintiff and no alleged damages, in this paragraph are conclusions of law to a response, the allegations are specifically Act is applicable to the allegations Act is not applicable to the allegations or counsel fees are recoverable under the Subcontractor Act. Defendant incorporates the allegations set forth in its New Matter and Counterclaim as if those allegations were fully se? forth herein. 26. Denied. The allegations contained) in this paragraph are conclusions of law to which no response is required. If the Court requires a response, the allegations are specifically denied. Defendant specifically denies that the Subcontractor Act is applicable to the allegations made by Plaintiff. To the contrary, the Act is not applicable to the allegations made by Plaintiff and no alleged damages, Subcontractor Act. Defendant incorporates the Counterclaim as if those allegations were fully or counsel fees are recoverable under the set forth in its New Matter and forth herein. EX I 401553v l 01/15/08 9 WHEREFORE, Defendant requests that the Court dismiss Plaintiff's Complaint with prejudice and award Defendant costs and counsel fees (at common law and under the Subcontractor Act, if applicable) and any other the Court deems appropriate. NEW 1. Plaintiff's claims are barred in 2. Plaintiff's claims are barred in services and the quality of said services causing 3. Plaintiff's claims are barred in 4. Plaintiff's claims are barred in miscalculated what monies, if any, it claims are or in part based on estoppel. or in part by the lack of quality of its to Defendant. or in part by lack of causation. or in part because Plaintiff has to it. 5. The Complaint fails to state a cause of action against Defendant upon which relief can be granted. 6. Plaintiff's claims are barred in whdl le or in part based on the statute of frauds. I 7. Plaintiff's claims are barred in whale or in part based on the parol evidence rule. i 8. Plaintiff's claims are barred in whale or in part based on Plaintiff's own negligence. 9. Plaintiff's claims are barred in whale or in part based on Plaintiff's lack of due diligence. 10. Plaintiff has admitted to overcharg ng Defendant but continues to refuse to provide back-up paperwork to justify the charges hat Plaintiff has made and is now attempting to collect. 11. Defendant provided Plaintiff with proper notice and in good faith disputed the I charges in a timely and appropriate manner. i EX I 401553v 101 /15/08 10 12. Plaintiff has charged Defendant was performed and at rates not agreed upon by 13. Plaintiff cannot state a claim Defendant are proper parties and Plaintiff has not work never performed, for more work than parties. the Subcontractor Act as neither Plaintiff nor construction services under the Subcontractor Act. 14. Plaintiff's claims are barred in or in part based on Plaintiff's failure to mitigate its alleged damages. 15. Defendant incorporates by reference all affirmative defenses contained in Pa. R. Civ. P. 1030 and the Counterclaim set forth belo as if they were set forth fully herein. WHEREFORE, Defendant requests that tl a Court dismiss Plaintiff s Complaint with prejudice and award Defendant costs and counsel fees (at common law and under the Subcontractor Act, if applicable) and any other relief the Court deems appropriate. LCL Management ("Counterclaim!, Plaintiff') incorporates each and every prior paragraph of its Answer and New Matter as if fully set forth herein. 2. Central Penn Asphalt, Inc. ("Counterclaim Defendant") agreed to provide services to Counterclaim Plaintiff, and promised to do so in a professional and workmanlike manner and promised to bill Counterclaim Plaintiff in an 3. Counterclaim Defendant has manner for services actually undertaken. to overcharging Counterclaim Plaintiff for services never provided and at rates not agreed to by the parties. 4. Counterclaim Defendant failed to workmanlike manner and failed to complete the manner, failed to correct warranted work and these services in a professional and failed to complete the work in a timely to cooperate with Counterclaim Plaintiff and EX I 4015530 01/15/08 11111 instead caused damages to Counterclaim Plaintiff, in an amount exceeding any claim by Counterclaim Defendant. 5. Counterclaim Defendant breached 'its duty to Counterclaim Plaintiff thereby causing damages to Counterclaim Plaintiff. 6. As a direct and proximate result of Counterclaim Defendant's conduct, Counterclaim Plaintiff has suffered substantial WHEREFORE, Counterclaim Plaintiff and against Counterclaim Defendant, require Counterclaim Plaintiff, and award Counterclaim counsel fees (at common law and under the that the Court enter judgment in its favor Defendant to account to compensatory damages, interest, costs, Act, if applicable), and such other relief as the Court deems appropriate. Dated: January 15, 2008 FOX ROTHSCHILD LLP By: "(L? 01?n ,d'o J. Miravi squire A orn ey I.D. 56124 47 Constitution Dri ve, Suite 100 Exton, PA 19341-0673 (610) 458-7500 Attorneys for Defendant/ Counterclaim Plaintiff LCL Management EX I 401553v l 01/15/08 12', I, Sherri Hocklcy, verify that I am an auto representative of LCL i wrnent, LLC and the facts set forth in tl-w Ati,x'tcr, NOW M it®r and Counterclaim are based upon my personal knowledge or upon iinformadou furnish* by counsel and baw been gathered in the course Of rasponding, to this law4ult; and That the fi=ts set rorth in this documoui aro wAe and coiTeet to tho bout of my LnIormation and bolie4 al hougb the lattyuage of this document is that of cou ml and not my own. To the extent that the contents of This document have been supplied by counsel, i have relied upon counsel in taking this eriftcation. I =derstancl that the startments =de herein are subject to the penalties of 18 Pa. S. A. § 49134, reluted to unsworn I falsification to authorities. Bk1 •:uli53YE UIl15?CH ? I, John J. Miravich, hereby certify that New Matter, and Counterclaim was served via Anthony KELLY, PARKE Commerce To 300 North this date, a copy of the foregoing Answer, mail, addressed as follows: ,. Parker & COHEN, LLP -rs, 10th Floor ,ond Street Harrisburg, PA 17101 Dated: January 15, 2008 EX I 401553v l 01/15/08 ? n.a c:? ? r ? e:? ,? ? T i-I"t _r? s'r C;1 ?, `? ' ) `r? -; ?? - .. ==t `' --< CENTRAL PENN ASPHALT, INC., Plaintiff V. LCL MANAGEMENT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION 07- (0368 NO.-97.63f* PRAECIPE TO DISCONTINUE Kindly discontinue the above-captioned civil action with prejudice. Respectfully submitted, Dated: June 9, 2008 thony arker No. 81251 KELLY, PARKER & COHEN LLP Commerce Towers, 10'h Floor 300 North Second Street Harrisburg, PA 17101 717-920-2220 fax 717-920-2370 aparker@kpc-law.com Counsel for Plaintiff Central Penn Asphalt, Inc. CERTIFICATE OF SERVICE On this 9 h day of June 2008, I, Pamela L. Russell, a legal secretary with the law firm of Kelly, Parker & Cohen LLP, hereby certify that I have served this day a true and correct copy the PRAECIPE TO DISCONTINUE by depositing the same in the United States First Class Mail, postage prepaid in Harrisburg, Pennsylvania, addressed to those persons and addresses indicated below: John J. Miravich, Esquire Fox Rothschild LLP Eagleview Corporate Center 747 Constitution Drive, Suite 100 P. O. Box 673 Exton, PA 19341-0673 CZ GR