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07-7500
It e VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 0'1- rISM MLO CIVIL ACTION - LAW MECHANICS' LIEN MECHANICS' LIEN CLAIM NOTICE TO OWNER TAKE NOTICE, that on this date, in the Court aforesaid at the above number and term, Varish Construction, Inc. has filed a Mechanics' Lien Claim for work done and material furnished in the erection and construction of a subdivision known as the Commons at Parker Spring located partly in North Middleton Township and partly in Middlesex Township, Cumberland County, Pennsylvania. The amount claimed is $306,872.28 plus interest. Respectfully submitted, Date: / L tA d 7 SMIGEL, ANDERSON & SACKS, L.L.P. By: Peter M. Good, squire 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 Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. D 7- 7 1 p C? Q om. THE COMMONS AT CIVIL ACTION - LAW PARKER SPRINGS, INC., Defendant. MECHANICS' LIEN MECHANICS' LIEN CLAIM AND NOW COMES Claimant Varish Construction, Inc. who files this Claim of Mechanics' Lien against The Commons at Parker Springs, Inc., pursuant to the Mechanics' Lien Law of 1963, as amended, against the improvements and the estate or title of the owner, for the payment of all debts due Claimant as a contractor for labor and materials furnished in the construction of a subdivision known as the Commons at Parker Spring located in North Middleton Township, Cumberland County, Pennsylvania, herein described, upon the following statements: 1. The Claimant is Varish Construction, Inc. ("Varish"), a Pennsylvania business corporation having its principal office located at 800 Bullfrog Road, Gettysburg, Adams County, Pennsylvania 17325. 2. The Owner or reputed owner of the leasehold, property and improvements against whom the claim is filed is The Commons at Parker Springs, Inc. ("Parker Springs"), a Pennsylvania business corporation having its principal office located at 2159 Overhill Road, Allentown, Lehigh County, Pennsylvania 18103. 3. Varish makes this claim as a subcontractor. Varish provided certain work, labor, equipment and materials related to the construction of a housing subdivision known as the Commons at Parker Spring located in North Middleton Township, Cumberland County, Pennsylvania. True and correct copies of the contract documents are attached hereto and made part of this document as Exhibit "A". True and correct copies of unpaid invoices detailing the work done are attached hereto as Exhibit "B." 4. Varish ceased all work labor and provision of materials that are the subject of this claim by September 17, 2007. 5. The total amount claimed to be due and owing is as follows: a. Balance on the unpaid Contract price: $149,340.80 b. Balance on the unpaid Invoices: $112,901.30 C. Cost of unused water pipe and other materials: $37,730.18 d. Cost for removal of materials: $2,400.00 e. Cost for storage of materials: $4,500.00 TOTAL $306,872.28 6. The property subject to the lien is the housing subdivision known as the Commons at Parker Spring, located partly in North Middleton Township and partly in Middlesex Township, Cumberland County, Pennsylvania, more fully described in the Deed recorded on June 21, 2006, in Cumberland County Deed Book Volume 275, Page 1220, in the Recorder of Deed's Office of Cumberland County, Pennsylvania, known, now or formerly, as Parcel Nos. 29- 08-0575-001 and 29-08-0575-002 including all equipment that as part of said structure constitutes fixtures, together with the lot or cartilage appurtenant thereto belonging to the same Owner. A true and correct copy of the Deed is attached hereto as Exhibit "C". 7. This lien is claimed from June 21, 2006, the date Varish commenced performance of the work on the property herein described and against the Owner's interest in that property. 2 WHEREFORE, Claimant Varish Construction, Inc. files this claim for mechanics' lien in the amount of $306,872.28, with interest as provided by law. Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Date: L e By: _ /W f Peter M. ood, 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 3 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. Vanish, President of Varish Construction, Inc. cxti,e?+A 1724 9! 0 0' "4 - 0 ? 1213: 50 i FF'(°1 T-?13 P002i 010 F-0 13 otiirnunit ban17 051 Contractor Agreement THIS AGREEMENT made the 21st day of June 2006 by and between hereinafter called the Contractor and The Ccnttins at Parker Spr1 rag, InC . hereinafter called the Owner. WITNESSET'H, that the Contractor and the Owner for the considerations named agree as follows. Atlicle 1. Scupe of the Work The Contractor shall furnish all of the materials and perform all of the wort - shown on the Driwings and/or described in the Speci- fications entitled Exhibit A. as annexed hereto as it pertains to imork to be performed on property at subdivision krKywn as the Cartons at Parker Sprinq located in North Middleton Township, Ctattberland County, Pennsylvania Article Z. Time of Completion, The work to be performed under this Contract shall be commenced on or before Aucrust 26. 1p 06 and shall be substantially compieted on or before June 20_ 20 07 Time is of the esstrice. The following constitutes substan- Gal completion of work pursuant to this proposal and contract: (Specify) Artide 3, The Contract Price The Owner shall pay the Contractor for the material and labor to be performed under the Contract the sum of Six Htindrjad Fifty_Thousand_-Four Hundred Fifty- ,Dollars (1650',454 subject to additions and deductions pursuant to authorized change orders, four Article 4. Progress Payments Payments of the Contraa Prke shall be paid in the manner following- (Specify) In stages as the iittprovenents are insT3ected and aocepted by North Middleton Township and North Middleton Authority and as the security 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 additional material andlor labor costs, 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 contract price of this contract. if payment is not made when due, Contractor may suspend work on the job until such time as all payments due have been made. A failure to make payment fora period in excess of 20 days from the due date of the payment shall be deemed a material breach of this contract. Page 1 __40u+rns cem e,aca. Sooiv, !qty, LLC ,.e c.. •.. A:n 09-?4- 07 03:50 Malik 0,51 717249'22121'T--P003 '010 F-033 In addition, the foliow.ng genera provisions apply 1. .Alf wont shall be completed in a workman-like manner and in Compliance with all building codes and other applicable laws. 2, The Contractor shah furnish a plan and scale drawing showing the Shape. size afrnensions, 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 extent required by law all work shall be performed by individuals duly licensed and authorized by law 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 furnish Owner appropriate releases or walvers of Ilen for all work performed or materials provided at the time the next periodic payment shall be due. 6. All change orders shop be in writing and signed both by Owner and Contractor, and shall be incorporated in, and btcome a part of the conuaa. 7. Contractor shall at its own expense obcaln all permits necessary for the work to be performed. 8 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 instanment payment due hereunder, Contractor may cease work without breach pending payment or resolution of any dispute 1a Ail disputes hereunder shall be resolved by binding arbitration in accordance with rules of the American Arbitration Association 1 l Contractor, shall not be liable for any delay due to circumstances beyond its.conucif including strikes, casualty or general unavailability of materials. 12 Contractor warrants all work for a period of 12 months following completion. Article 6. Inde nA ftcatlon To the fullest extent permitted by law, the Contractor shall indemnify, defend and hold harmless„ Clwner 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 agreement 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 will 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 resuh from the Conuaaor's operations under this proiea 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 shall 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 ??g1 Z w.vw,io7 ill t.CO? 02001, Sccaid tM, LLC "It 4 • 1.V. 0475 09-34- 0" 08, 50 FFt:f9-r. roriiUtiit? ban};? 051 7172492'0" T-213 F004 `010 F-033 written on a "Claims mad..°-+ form Will be maintained without intelruplion from the commencement of work until tF.e expiration Of all applicable statutes of limitation. 1) Worker's Compensation 1700 , 000.00 2} Comprehensive General Liability with limits of not less than S 2 , 000.000.00 per occurrence. 3! Comprehensive Automobile Liability (owned, non•owred, hired) of S 1, 000, 000.00 each accident:. -- The Contractor shall file Certificates of Insurance, narning 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 Pti-Mit Indtei idl changes until at least thirty 30 } days wrinen notice has been given to additional insured- Article 8. Additional Terms as per bchibit B Name and Registraton No, of any Salesperson who solicited or negotiated this contract- N/A Signed this 21st day of June 20 06 Witness Name of Contractor. t h f? c4? 7 I-? Y C•l p , ? V? f Signed in the presence of; Witness: r'r Y Nam@ofOwnedYr??. 6y. Signature; By Street Address, City/statel2ip, Telephone No., Contractor's State license No. P'Ve 4 1oa. s«,su. L,46 ,. 4C 4 T 09-24-' 0 7 01' : 50 FRO("1-c. ninn_lt;it % t_?anl>? 051 172492223, T-213 P005/010 F- V APISH C ONSTRUCTION NC .., _._,_-..___....,..x .. . j Bid Proposal Commons at Parker Springs Middlesex Township Cumberland County Proposal Offered to: Proposal nata• The Commons Parkers Spring Inc. LLC Phone: 717-226-2127 i. Erosion Control: 1 18" Silt Fence 1000 If (P $ 2.50 $ 2,500.00 2 Construction Entrance 3 ea $ 1,090.00 $ 3,270.00 3 Inlet Sift Sacks 7 ea $ 88.00 $ 616.00 4 Outlet Structure 1 ea $ 3,300.00 $ 3,300.00 5 Trash Rake/ Anti Vortex 1 ea $ 1,800.00 $ 1,800.00 Erosion Control Subtotal S 11,486.00 il. Excavation to Include the Following: 1 Clearing 3 ac $ 4,890.00 $ 14,670.00 2 Strip Topsoil-8" Depth 4126 cy Q $ 2.00 $ 8,252.00 3 Bulk Excavation Cut/Fill 9420 cy C $ 2.80 $ 26,376.00 4 Topsoil Replacement 6" 237 cy Q $ 4.50 $ 1,066.50 5 Fine Grade Curb 1252 If Q $ 1.00 $ 1,252.00 6 Backflll Curb 1252 If @ $ 0.80 $ 1,001.60 7 Temp, Seed & Mulching 2 ac $ 1,200.00 $ 2,400.00 8 Export Rock Material 150 cy $ 12.00 $ 1,800.00 9 Shoulder Excavation 503 cy $ 11.00 $ 5,533.00 Excavation Subtotal $ 62,351.10 Ili. Sanitary Sewer to include the Followi ng: 1 $" SDR-35 Sewer Laterals 700 If (? $ 28.00 $ 19,600.00 2 4" Force Main Installation 440 If Q $ 23.00 $ 10,120.00 3 6" SOR-35 Sewer Laterals 898 If C $ 22.00 $ 19,756.00 4 Precast Manhold 4' 4 ea @ $ 1,880,00 $ 7,520.00 5 8" x 6" Wyes 30 ea $ 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 Backfili 11 ton Q $ 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 C $ 44.00 $ 440.00 14 Lift Station 1 is @ $ 195,600.00 $ 195,600.00 Sanitary Sewer Subtotal $ 285,648.00 Phone; -I'-.i;i•i-711:, Fn%: -17 -,•,3'1-?'7f)': vvr?11,;tx'm ? `, 15 0'?-'-A- 07 1:l.. 50 F?,Obanks 051 .' 172'492 2 4? ',3, T-"1;? F4?l?b,i 01k7 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 @ $ 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- Q $ _ 1,060.00 $ 1,060.00 5 Precast Manhole 1 ea (g $ 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. Wa ter Line to Include the Following: 1 8" D.I. Installation 720 If @ $ 43.50 $ 31,320,00 2 314" 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 Q $ 28.00 $ 11,700.00 5 Fire Hydrant Complete 2 ea @ $ 3,450.00 $ 6,900.00 6 Meter Pit Installation 2 ea (Q $ 26,900.00 $ 53,800.00 7 Water Main Testing 720 If (§ $ 3.00 $ 2,160.00 Water Line S ubtotal 126,880.00 Vi. Paving and Curb to include the Following: 1 Fine Grade Subgrade 2512 sy (?D $ 1,00 $ 2,512.00 2 6" 2A-Mod. Subbase 2512 sy Q $ 4.50 $ 11,304.00 3 2" ID-2 Binder Course 2512 sy 0 $ 7.00 $ 17,584,00 4 1" ID-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 @ $ 3.00 $ 2,535.00 7 Tackcoat 2512 sy @ $ 1.00 $ 2,512.00 8 Curb Sealing 2650 If Q $ 0.35 $ 927.00 9 Traffic Control 1 Is a $ 5,500.00 $ 5,500.00 10 18" Concrete Curbing 1255 If @ $ 9.50 $ 11,922.50 11 Road Widening Paving 366 sy (Q $ 55,00 $ 20,130.00 Paving and Curbing Subtotal $ 98,715.80 Vil. General Conditions to Include the Following: 1 Supervision 1Is @ $ 3,500.00 $ 3,500.00 2 Mobilization 1Is @ $ 6,200.00 $ 13,200.00 G enera l Conditions Subtotal $ 16,700.00 G rand Total $ 632,454,90 54% 09-"' 4 0 r 0 : 50 FF'Cd'9-cutiiGiLlti t'+,' banks 051 717'Z'49'-2'0: T-213 P007, i010 F-033 Special 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 at the time of placement hased on the published RADOT 6 q Uid Asphalt index, The Asphalt index foi April 2ee6 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 owners 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 topsoll, 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 ??u 0'a-24- 0`' 03:50 FrCi'9-rnninit_ttiit: batiks 051 7172492::03 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 tt- iginal contract amount. Ripped Bulk Rock Excavation Blasted Bulk Rock Excavation Ripped Trench Rock Excavation Blasted Trench Rock Excavation Rock Excavation with Hoe Ram Ripping Frozen Ground Sore Rock Excavation T-213 F'003i'010 F-033 I for rock $ 9.00 /cy $ 45.00 /cy $ 65.00 /cy $ 75.00 /cy $ 185.00 Icy Time & Materials $ 175.00 /cy Varish Construction Inc. shall execute a stipulation against Liens at Owners request. No construction Ali 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: Acceptance of Proposal: Date: ?` ?? ??-- U? ?_ . 5lt FF'OP'1-cunini?_u?it, )ianl ??51 '17 17'2492220 :; T-2 1: F009/010 F-03 Language for Proposal of Site Work: 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 shat! 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. 09'2-' 07 Ue" 51 1951 The Commons at Parker Spring, T OWNER ! vs. f/,rl?t? ? y? ?Y ?C ./?" S,liy?G, ?r TjG,?? T,vc. CONTRACTOR 71 72' , 49' 2703 T- 1.. F0101/010 F-033 STIPULATION AGAZ* 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 of ,Cotmtyof 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, 204) ?, 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 PARKER SPRING, INC, in the presence of: ,. T BY: (Seal) Harry rill, President ATTEST: ?-" BY: Seal X VCI Varish 1 1 n . 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 AUT IZATION Project: The Commons at Parker Springs North Middleton Township Cumberland County $27,000.00 VCI aril Construction Inc. 800 Bullfrog Road Date: 07/17/07 Gettysburg, Penna. 17325 717 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 TL150 rubber track loader @ $90.00 per hour 29 hrs EC 140 volvo excavator @ $ 105.00 per hour 38 hrs labor @ $30.00 per hour 101 tons of stone @ $11.00 per ton 170 feet of 8" pipe replaced in order to raise grade @ $ 2.83 per foot 1 box mastic sealer 1 miscellaneous materials 1 trench box rental 8X8X8 1 trench box rental 8X12X36 1 test for manhole and line $ 2,925.00 3,045.00 1,140.00 1,111.00 481.10 55.00 66.00 300.00 240.00 240.00 TOTAL AMOUNT $ 9,603.00 VCI aris Construction Inc. 800 Bullfrog Road Date: 07/17/07 Getivsburg, Penna. 17325 717 334-7173 Bill to: K & I Construction 801 E. Fairmont Street Allentown, Penna. 18109 Description 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 7.5 hrs.953B track loader @ $ 125.00 per hour 26 hrs TL 150 rubber track loader @ $90.00 per hour 1 590SM back-hoe W/ 1500 pound hammer Project: The Commons at Parker Springs North Middleton Township Cumberland County TOTAL AMOUNT $ 3,780.00 937.50 2,340.00 855.00 $ 7,912.50 vCI Varish Construction Inc. 800 Bullfrog Road Gettysburg, Penna. 17325 717;34-7173 Bill to: K & I Construction 801 E. Fairmont Street Allentown, Penna. 18109 INVOIC,I:: # 1 C) Date: 07/24/07 Project: The Commons at Parlor Springs North Middleton 'Township Cumberland County Description Amount Cost of Win 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 5/21/07 TOTAL AMOUNT AUTHORIZATION $ 6,152.10 TO ' d ZOoS+bii+L i L 9N0 11 '-1 t:ti lS:N00 o-HS I':I!+r'. Wd to: 60 .! O-b z-d31 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 o1'2" foam insulation for inside of foundation walls, stone, track hoe, Laborand grading of 8" of stone for house, garage and porch for buildings 1 1- 15 as per proposal number 354 dated 05/21/07, TOTAL AMOUNT AU"rHORIZATION INVOICE # I I Date. 07/224/07 Project: The Commons at Parker Springs North Middleton Township Cumberland County Amount $7.607,10 z© ' d Z06Q-#-t'==+L T L 9M 0 1 10 i:J1SN00 C HS I'-tf W.A t-0: 60 L9-b z-d3^-. VCI Varish Construction Inc invoice # 12 800 Bullfrog Road Date: 08/29/07 Gettysburg, Penna. 17325 717 334-7173 Job Location: The Commons at Parker Spring ,jib Dese[a t? Additional work and materials required by Middlesex Township uote• (See attached drawing supplied by the township) Co ition 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 Lawry, the Borough inspector, including backlill and grading $ 4'215,90 Cost of materials (MH 401 A stone, fittings, pipe & etc) $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 1 d ZO69+b22+L T L 9NO I Iona IsNo`,?H J' I a".1, LJj VO: 60 40-V Z-d3s VCI Varish Construction Inc. 800 Bullfrog Road Gettysburg, Penna. 17325 717 334-7173 Gill ta: K & T Construction 801 E. Fairmont Street Allentown, Penna. 18109 Description 1NVOIC F' # 13 bate: 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 '/_ days) Forenian/operator for removal of rock ( six hours) Move in/move out charge 590 SM back hoe w/ hammer (twice) 590 SM hack hoe usage charge ($ 105.00 per hr) EC 140 volvo excavator ( $90.00 per hr) IT 150 rubber track loader ($90.00 per hr) TOTAL AMOUNT AU'T'HORIZATION Amount $ 1,283.10 270.00 470.00 420.00 180.00 630.00 $ 3.2.53.10 t7o d Y? oS+t ?i+? i! 9N0 I _L011-?iIS N00<-HS I -80e% t4•=1 t-0: 60 .! 9-t- Z-d3'= OCT-02-07 11:51 PM VARISH-*CONSTRUCTION6 717+334+5902 P.03 VCI Varish Construction Inc. 901) Bullfrog Road Gettysburg, Penna. 17325 717 334-7173 Bill to: K & I Construction 801 1. Fairmont 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 l1.5 hrs F.C 140 Volvo Excavator @1 $ 105.00 per hour 15 hrs foreman on site fa; $45.00 per hour 15 hrs laborer can site (uJ $30.00 per hour INVOICE # 14 Date: 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 OC'T-02-07 11:51 PM VARISH-CONSTRUCTION6 vCI 717+334+5902 P.02 Varish Construction Inc. 800 Bullfrog, Road Gettysburg, Penna. 17325 717334.7173 13111 to: K & I Construction 801 F. Fairmont Street Allentown, Penna. 18109 INVOICF # 1.5 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 reccivcd viii counsel for Flurry Brill on 09/17/07 'T'his rental period is for 09/18/07 thru 09/22/07 and 09/24/07 thru 09/26/07 Track I•loc AC 140 10 hrs per dray at $95.00 per hr Skid [.ouder "l L.150 10 hr.,; per day at $85.00 per hr Rake Ilog/Bucket 10 hrs per day at $10.00 per hr Gravel Bucket 10 hrs per day at $20.00 per hr Trench Roller 10 hrs per day at $300.00 per day Forks for skid loader 10 hrs per day at $10.00 per hr Rackhoe 580SM 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 OCT-18-07 04:03 AM VARISH;CONSTRUCTION6 717+334+5992 P_02 VCI Vurish Construction inc. 800 Bullfrog Road Gettysburg, Penna. 17325 717334-7173 Bill to; Harry Brill 21,54 Ovcrhill Road Allentown, Penna. 18103 Description INVOICE # 16 Date: 10/15/07 Project: The Commons at Parker Springs North Middleton Township Cumberland County 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) OC?T-24-07 04:43 PM VARISH+CONSTRUCTION6 VCI 717+334+5902 P•02 Varish ('(instruction Inc. 800 Bullfrog Road Gettysburg, Penna. 17325 717 334-7173 Dill to: Marry Brill 2159 Uverhill 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 I{oover Engineering attached) Amount $940.110 rx?ibI + C 12/10/2007 16:01 FAX 17172328986 12/12/2007 06:25 7172580862 ? lq 4 f };1}1L8M W Q'At1I?Y1 ?w?Atoo?f.i,de?e BONNIE A MEEAFFIE Q001 rpue. nl TRI COUNTY ABSTRACT 2006 JUN 21 PM 12 08 Parcel Nan: 29.48-os75-001 29.08-0575-002 DEED MADE TIM 16x` day oflune, 2006. BSTWBEN 9f'. iL UN =R, sitWc man, of the Born* of Carlisle, C I,,I nd Cowry, Pexmsylvatxia, imi:oafr referred as: Cnant04 and MC CO1rIIVt'ONSATPARMWMG,ANC., a withasacld m of 2159 OveshM Road, A11e;0eown, Pa msylV410ia 18103, be to refcnvd to as: In c widaation of FM HUNDRED SEA-FM T30U5A M AND 00/100 ($95,0DO.00)DOLLARS,therecaptwbasa isboteby ,ft Crantordoeshavb'ygmt and convey to tho Cam, its m==oor aad assigns: ALL THAT CERTAIN had of land situate partly m North 1lditdd sWn TownsUP and pwdyinbaddle =Townstp,cuoin iaml mk. ed nddoocnlbed aeoordia8 W the Final Sdbdivt d*nP1mJbr1U Commons atPatioeo *=& prepar dby Hartman and Associates, be., Eaginsars and 8ttrvsyers, dated March 23,1999, mvined Oatobee20, 2405, andrewrd d in Cmbalaad County. PI=Book", PW w follows: BEGWNINGataairon*wtintheomftlitsaofPe PAW(T•710)(33'rig -Of-way) atOwso thwc*mcomwofbodn worlsWofftBamughofCacH*SewaAudwrgr thence along sumac and passing tl mu& a proposed co cretc 25.91 fact ft= the centwUue ofsaid Post Road, NM& 77 dagzM 14minutes 0a seconds East 510.60 feet to an hw pia set; thence alongsame and laud raw or We of CountyofCnmbaland, Cumberland Cou AyPrison, North 63 degm 34 minutw 00 seconds East 231,91 fimt to an iron pin set; Ownce along lmd now or late ofCotmtyof'Cmabcr1m*dd Cambmisnd CountyPrmu ft fotlowi .g ilve cmzm and dishma: (1) North 72 degrees 30 minutes 40 seconds East 117.21 feet to an ixon pin sat; (2) Nam 45 degrma 45 »tes 40 seconds East 111.16 f mtto mx im pin sae; (3) South 56 & Wow 06 m rotates 00 swA mds DO 274 PlsE1220 12/10/2007 16:01 FAX 17172328986 BONNIE A MERAFFIE X1002 .,arcuorapoz TRI COUNTY ABSTRACT PAGE 02 i Bast 97.28 feetto as inmpin; (4) South43 degrew 29mimm 00 semmds West306.70 fm ba an in?atpin w and (s} South 16 &wm42lea 26 sw4ws weet60.00 feet toashwpiQaw, idoagleadnoworlafooeRdwmA. RouwktheEol &*ftfay couraoe and diataacas: (1) Xortb 66 daVm 31 rnimrtes 00 saooada Went 56.95 foal to an iroaPia at (2) South 82 dogma S9 miaufes oo noon& Wat 392.46 feat to =iron pinsct; (3) Sotrth 33 dc9rme547 mivAm 00 seeouda Banc 359.24 feet to an i rampiu set; nod (4) 3ouxh 39 degrees 02 miuauk*00 seconds East 221.70 Slat mtdpasaing tbmugh aproposedooamwmmtmemt25.02imAfromtoreironpQasetitrChmmonlRoad(S.R. 2002); thence tbrough, udd Clan a at Rm d (23, rigwa--way), Son& 49 &W m 29 minutes 80 seconds West 340.00 feet to an iron pin set in the intetwcdm of said Claranont Road attd Post Road (T-710); tl?enoa through said Post Road, Norfb 28 degrees 01 minute 00 se m& West 824.86 fleet to as ivm Vin set, the poitrt aadplace of Beginning. CONTAMUNG 7,0922 acres. WNGt o 3m@plombw Richard R BraVm dad Plw xUB. Bu Won, his w1k boythar Deed dated December 29,1999, sad V=rdcd in, Cumba kod County, Penn*+4aWa Dad Book 214, Page I W, gramtedand cmarveyW veto, W. R, User, Gr'a uw bwaK AND the Sm= panim whiebG.RWWWKadm,Jr,,byhmAttormy4m-Faat,RobotL. Kelm; and Linda Thoms, bybw Aftmmcy--hi-Fact, R =t,L„ Kerim bythek DaW drtod Jsmtsary 12, 2000, and mcorded in Cmaberland Coady, Pemyh=iaDeed Bask 214, Page 1036, granted and coaveyed uwo W. R Unger, Gra wr he chL AND the said Creator Wmby cavmMtX and ap ecs AM he w01 warrant spocittlly the Wvpcrty hereby conveyed. IN W1TMS WHEMP, said Crantorhw hermmW set hiahamd and wd the day aadycw srst WNM written. SIGNED, SEALED AND DELIVERED IN TM PRESENCE OF AA I.C.1 (SEAL) W. R. Urger BOOK 276 PAGE12a 12/10/2007 16:01 FAX 17172328986 ` BONNIE A MEHAFFIE 2003 ,- IRI COUNTY ABSTRACT PAGE 03 COWONWEALTH OF PV6MS'MVAMA ) COUNTY OF MASERU } On d1ij, the (lp?'??, o? f ..k , 2006, befte rM die =derWped.M,, "eMW W. X UNaE P kno,II to me of ?'pwveuto bathe , =Wwfbe4 19 to the W'ft fiMmumat 'ad vdMowt dwbo ezecWodthe same g3rthopuposm IN WrrM$S VV'MREQF, I hcM=90 Set mY hind aad official seal. COM10NWEALTFf op PENNMVAM A M hwe w. Mcaoy. H,aoyy pvw EAL} Sow' &$ Top" ax^t"A0w Co4w N FubII Oornie?wlon no Nor. t& 200 Wnerr, a Noaaoa ffia Ofthe+i6sinGtanmees /Sp 'rte -.rte' ?? Attu fat MARMN DFARDORM WMLL L&jWS & Orr GN`ADVI?'?.ALY - this to by fcDrded Cumberland COY pA 4-.; 411. Y P111PI fills A?1?IY)FNIE'XB & 9 .. TRN ZAw RF= 8T=T TS "ROME (717) 243-M4 j FACBMIX M7)243-1850' ,so O o Of Deeds ? a ig tdo 27S PAa12= VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 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 Mechanics' Lien 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 Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Date: /t 12 d 7 By: Peter M. ood, 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 TI? - COP d O o 99 9 vz? chi crr cc? VARISH CONSTRUCTION, INC., Plaintiff vs. THE COMMONS AT PARKER SPRINGS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 07-7500 : CIVIL ACTION - LAW : MECHANICS' LIEN DEFENDANT'S MOTION TO STRIKE MECHANICS' LIEN CLAIM AND NOW comes Defendant The Commons at Parker Springs, Inc., through its counsel, Mette, Evans & Woodside, P.C. and moves this Court to Strike the Mechanics' Lien Claim filed in the above-captioned matter by Plaintiff Varish Construction, Inc., in support of which it avers as follows: 1. Defendant The Commons at Park Springs, Inc. ("Parker Springs") is the owner of certain property located partly in North Middleton Township and partly in Middlesex Township, Cumberland County, Pennsylvania as more fully described in a deed recorded on June 21, 2006 in Cumberland County Deed Book Volume 275, Page 1220, a copy of which deed was attached as Exhibit C to a Mechanics' Lien Claim of Plaintiff Varish Construction, Inc. ("Varish") filed previously in this matter. 2. Varish entered into a contract with Parker Springs to perform site work on the property in connection with the involvement thereon of a residential subdivision. A copy of Varish's contract with Parker Springs was attached as Exhibit A to the Mechanics' Lien Claim filed previously by Varish in this matter. 3. On June 21, 2006, Parker Springs filed with this Court a Stipulation Against Liens executed by Varish in favor of Parker Springs. A true and correct copy of the Stipulation Against Liens is attached hereto as Exhibit A and incorporated herein by reference as if fully set forth. 4. On or about December 12, 2007, Varish filed the present Mechanics' Lien Claim and served a copy upon counsel for Parker Springs. The copy served upon counsel for Parker Springs did not contain a Notice to Plead. 5. Pursuant to Rule 1651(d) of the Pennsylvania Rules of Civil Procedure, the procedure with regard to mechanics' lien claims is to be in accordance with the rules relating to a civil action, except as otherwise provided thereunder. 6. Varish's Mechanics' Lien Claim is invalid on its face given the prior filing of a valid Stipulation Against Liens. 7. The residential subdivision project is substantially complete, and Parker Springs has negotiated at least one contract of sale for one of the lots in the subdivision and has offered additional lots within the subdivision for sale to the public. 8. The illegal and improperly filed Mechanics' Lien Claim of Varish would unreasonably interfere with the closing of any sales of lots within the residential subdivision. 9. Accordingly, this Court should strike the legally invalid Mechanics' Lien Claim of Varish for lack of conformity to law and rule of court. 10. Counsel for Parker Springs wrote to counsel for Varish on July 23, 2008 demanding that Varish withdraw its Mechanics' Lien Claim due to the previously filed Stipulation Against Liens. A true and correct copy of that letter is attached hereto as Exhibit B. 11. Counsel for Varish has advised counsel for Parker Springs that Varish refuses to withdraw the Mechanics' Lien Claim. 2 12. Due to the immediate and irreparable harm which would be suffered by the interference of Varish's lien with pending sales of lots within the residential subdivision, Defendant Parker Springs respectfully requests that the Court issue an expedited briefing and argument schedule with respect to this Motion. 13. Pursuant to Local Rule 208.3(a)(2) Defendant Parker Springs notes that The Honorable J. Wesley Oler has ruled upon issues arising from the same facts and circumstances relating to the same construction project in a related case docketed at number 07-6274 Civil Term. WHEREFORE, Defendant The Common at Parker Springs, Inc. respectfully requests this Court to strike the Mechanics' Lien Claim of Varish Construction, Inc. and to enter an Order awarding costs and reasonable attorneys' fees to Defendant in connection with the filing of this Motion. Respectfully submitted, METTE, EVANS & WOODSID BWaeMic • l lD. Reed, Esquire Sup. Ct. I.D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 August 15, 2008 Attorney for Defendant 3 EA,b ? ? The Commons 4 Parker Spring, Inc. STIPULATION AGAINST LIENS OWNER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY VS. COMMONWEALTH OF PENNSYLVANIA V,0 i 3?# CONTRACTOR NO. OG- 3S"3 ? /)7. J9 T - WHEREAS, The Commons at Parker Spring, Inc. of the City of Allentown, County of Lehigh and Commonweal of Pennsylvania hereinafter called the Owner, entered into a contract with C o,v <- T/Z i;17-? of ?y , County of ACY4 "? s and Commonwealth of Pennsylvani , hereinafter called the Contractor, to provide mat rials and perform-labor necessary for the construction and development of all site improvements including but t limited to grading, paving storm water management systems, water systems, sanitary sewer and infrastruc a upon land known as: -AdTHAT (CERTAIN tract of land situate partly in North Middleton Township and Partly in Middlesex Township, C berland 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, 19 9, revised October 20, 2005, to be recorded in the Office for the Recording of Deeds in Cumberland ounty, Pennsylvania Now, ?vH Z 20 a ?, before any authority has been given by the Owner to the Contractor to commence wo on said improvements or purchase materials for the same, it is hereby stipulated and agreed by and between said p 'es as part of said contract and for the consideration therein set forth, that neither the undersigned Contractor, an Sub-Contractor or material man, nor any other person furnishing labor or materials to the said Contractor under the con t entered into between said parties shall file a lien for work done or material furnished to said building, improvements or any part thereof. This stipulated is made and intended to be filed with the Prothonotary within 10 days after date in accordance with the requirements f the Act of August 24, 1963, P.L. 497, as amended. IN WITNES WHEREOF, the said parties have hereunto set their hands and seals the day and year aforesaid. SIGNED, S ALED AND DELIVERED THE COMMONS AT PARKER SPRING, INC. in the presence of: BY: (Seal) Harry rill, President ATTEST: BY: f PA.4 (Seal) ?x??bT+ ? METTE? EVANS & WOODSME A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 3401 NORTH FRONT STREET P.O. BOX 5950 HARRISBURG, PA 17110-0950 E-MAIL ADDRESS MICHAEL D. REED IRS NO. mdreed@mette.com 23-1985005 TELEPHONE FAX (717) 232-3000 (717) 236-1810 HTTP://WVV W.METTE.COM July 23, 2008 VIA FACSIMILE Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 Re: Varish Construction, Inc. v. The Commons at Parker Springs, Inc. Dear Peter: As you will recall, you filed a Mechanics' Lien Claim on behalf of your client in the above-referenced matter on or about December 12, 2007. That claim is, invalid on its face and violates Pennsylvania law, due to the fact that a Stipulation Against Liens signed by your client was filed with the Cumberland County Court on June 21, 2006. A true and correct copy of the Stipulation Against Liens is attached for your reference. On behalf of my, client, I must demand that you immediately file a Praecipe to Withdraw the Mechanics' Lien Claim with the Cumberland County Prothonotary's office. If you do not take this action to discontinue this legally invalid claim on or before July 30, 2008,1 will move to have the Mechanics' Lien Claim stricken and will seek costs and fees in connection with that motion, along with any other available legal remedies. Thank you for your attention to this matter. Very truly yours, Michael D. Reed MDR:tas Enclosure cc: The Commons at Parker Springs, Inc. Wyomissing Office 1105 Berkshire Boulevard, Suite 320 1 Wyomissing, PA 19610 Telephone (610) 374-1135 1 Facsimile (610) 371-9510 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, L.L.P. River Chase Office Center, 3`d Floor 4431 North Front Street Harrisburg, PA 17110-1778 METTE, EVANS & WOODSIDE BY: )"z Micha 1 D. Reed, Esquire Sup. Ct. I.D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 August 15, 2008 Attorney for Defendant c? r t? ? t1l 7 ^ Cpl 1t.-? t 'T, cn? u'? VARISH CONSTRUCTION, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW THE COMMONS AT PARKER SPRINGS, Defendant NO. 07-7500 CIVIL TERM ORDER OF COURT AND NOW, this 21St day of August, 2008, upon consideration of Defendant's Motion To Strike Mechanics' Lien Claim, it is ordered that: 1. A Rule is issued upon Plaintiff to show cause why Defendant is not entitled to the relief requested; 2. Plaintiff shall file an answer to the motion within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Thursday, December 4, 2008, at 3:00 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Briefs shall be submitted at least seven days prior to argument. BY THE COURT, t i ;ry ? t r a r?,l UC° WV ZZ Z) -Gal Peter M. Good, Esq. River Chase Office Center Third Floor 4431 North Front Street Harrisburg, PA 17110-1778 Attorney for Plaintiff Michael D. Reed, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendant SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center 4431 North Front Street, and Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire pgood@sasllp.com Darryl J. Liguori, Esquire dliguori@saslip.com Attorneys for Plaintiff VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-7500 MLD CIVIL ACTION - LAW MECHANICS' LIEN PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO STRIKE AND NOW COMES, Plaintiff Varish Construction, Inc., (hereinafter "Varish"), by and through its attorneys, Smigel, Anderson & Sacks, LLP, to file the following Plaintiffs Motion to Defendant's Motion to Strike and avers in support as follows: 1. Admitted. 2. Admitted with clarification. Varish entered a construction contract with Parker Springs to perform the contract work described in the contract. Varish also contracted with Parker Springs' general contractor on the job site, K&I Contractors, to perform additional work at the job site memorialized in a series of written invoices attached to Varish's Mechanics' Lien as Exhibit B. 3. Admitted. 4. Admitted in part and denied in part. It is admitted that on or about December 12, 2007 filed a Mechanics' Lien. The Mechanics' Lien contained a "Mechanics' Lien Claim Notice to Owner" as well as the actual Mechanics' Lien. Counsel for Parker Springs accepted service on behalf of Parker Springs. 5. Admitted. 6. Denied. The Mechanics' Lien is for work done not covered by the Stipulation Against Liens for K & I Contractors but for the benefit of Parker Springs. See Mechanics' Lien at 15. The Mechanics' Lien is valid as there was no Stipulation Against Liens filed by K & I Contractors. Although there was a Stipulation Against Liens filed by Parker Springs against K & I, Varish was not a party to this Stipulation and it was entered into after pre-waiver of lien rights was prohibited by the Pennsylvania Mechanics' Lien Law. 49 P.S. § 1401 (amended 2006). 7. 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. 8. Denied. It is denied that the Mechanics' Lien is invalid for the above-stated reasons. 9. Denied. The averments of this paragraph contain conclusions of law to which no response is required. 10. Admitted. 11. Admitted. 12. It is denied that Parker Springs will suffer immediate and irreparable harm. Varish has no objection to this Court setting an expedited briefing and/or argument schedule. 13. Admitted. By way of further clarification, it should be noted that K&I Contractors, Inc. is also a party to that action. WHEREFORE, Varish Construction, Inc. respectfully requests that the Motion to Strike filed by Defendant The Commons at Parker Springs, Inc. be denied. 2 Respectfully submitted, Date: q /o SMIGEL, ANDERSON & SACKS, L.L.P. By: 1A ?6/ 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., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. NO. 07-7500 MLD : CIVIL ACTION - LAW 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 Response 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 Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Date: ff?(j By: ?A? "/ 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 4c" 0 . cn Ali .,f r? OR I ?,-i k %I-?L VARISH CONSTRUCTION, INC., Plaintiff VS THE COMMONS AT PARKER SPRINGS, INC., Defendant : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-7500 MLD : CIVIL ACTION - LAW DEPOSITION OF: ZIGGY GORSKI TAKEN BY: Defendant BEFORE: HEATHER L. ARTZ, RMR, CRR REPORTER-NOTARY DATE: October 10, 2008, 11:15 A.M. PLACE: METTE EVANS & WOODSIDE 3401 North Front Street Harrisburg, Pennsylvania APPEARANCES: METTE EVANS & WOODSIDE BY: MICHAEL D. REED, ESQUIRE FOR - PLAINTIFF SMIGEL, ANDERSON & SACKS, LLP BY: PETER M. GOOD, ESQUIRE FOR - DEFENDANT Jean Davis Reporting 140 Peregrine Lane • Hummelstown, PA 17036 (717) 503-6568 • Fax (717) 566-5599 2 1 2 I N WITNESS Ziggy Gorski By Mr. Reed By Mr. Good D E X EXAMINATION 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3, 18 7, 20 3 1 2 3 4 5 6 7 8 9 10 11 12 ' 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATIONS It is hereby stipulated by and between the respective parties that signing, sealing, and certification are waived; and that all objections, except as to the form of the question, are reserved until the time of trial. ZIGGY GORSKI, called as a witness, being duly sworn, was examined and testified, as follows: EXAMINATION BY MR. REED: Q Mr. Gorski, we met earlier. My name's Mike Reed. I represent the Commons at Parker Springs in an action that was brought against them by Varish Construction, Inc. And we've asked you to come here today to give a deposition. Have you ever had your deposition taken before? A No. Q Okay. What will happen is that both I and Attorney Good, who represents Varish Construction, will be asking you a series of questions. And both my questions and your answers will be recorded by the stenographer, and they may be used in this litigation. So it's important today that if you don't hear or understand a question that you ask that it be repeated 4 1 2 3 4 5 6 7 8 9 10 11 12 ' 13 14 15 16 17 18 19 20 21 22 23 24 25 or rephrased so that we get an accurate transcript. Do you understand that? A Yes. Yes, I do. Q And also today if there are any times when you want to give a yes or no answer, you have to do that verbally, not by nodding your head or shaking your head, because we have to have a transcript of it. A Okay. Q So if you understand that, and then the other instruction would be to wait until the questions are finished before you answer, because the reporter can't take down both of us talking at the same time. Do you understand that? A Yes. Q Okay. Thank you. Mr. Gorski, would you state your address for the record, please? A Okay. It's 5480 -- -- yeah, 5480 Quince Road, Q-U-I-N-C-E Road, Apartment B, Wescosville, PA, 18106. Q And how are you employed, sir? A Right now I'm self-employed. Q Okay. At one time were you employed with K&I Contractors, Inc.? A Yes. Q Were you employed by them at the time they 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were involved in a project that was identified as the Commons at Parker Springs in Cumberland County, Pennsylvania? A Yes. Q And what was your role for K&I Contractors, Inc., on that project? A I work as a project manager. I was overseeing the project. Q And were you on that project during the time that site work was being done before town homes began to be erected, or did you just come on site when town homes began to be erected? A Actually, I was before, before, checking out how the project is going, going with the roads, so I was trying to frame time when I can start the project. Q Were you there -- you say you were there before the construction of town homes began? A Yes. Q Were you there before the construction of the roads and all that began, or had that already began when you first got there? A Actually, at the same time, the same time. Q Okay. And were you there on an everyday basis? A I would say 90 percent, 90, 95 -- 90, 95 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 percent. Q And what did you understand the role of K&I Contractors, Inc., to be with regard to Varish Construction? A To Varish Construction -- what I know it's between K&I, that was between K&I and Commons at Parker Spring. Q Okay. MR. GOOD: I didn't quite understand your answer. The first part of your answer, I didn't hear what you said. THE WITNESS: Yeah, it's there's nothing between Varish and K&I. MR. GOOD: Okay. BY MR. REED: Q Okay. Your understanding was that the Commons at Parker Springs had hired K&I to do the work K&I was going to do? A Yes. Q And who had hired Varish Construction to do their work? A That was Commons at Parker Springs did it. Q In an earlier deposition Mr. Varish testified that there was a meeting at a diner where you and Mr. Zieja were both present and also 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Brill, and he said that there was a verbal subcontract entered into between K&I and Varish Construction at that meeting. Do you recall that happening? A No. Everything was happening, I mean, it was between Commons at Parker Springs, which is Harry Brill, and Varish. Varish was hired by Brill. Q Do you recall being at a meeting like that, at a diner? A I was -- we had meetings. Q And what do you recall being discussed in those meetings, if anything? A I never -- I mean, we never had anything deal with -- with the Varish as K&I. MR. REED: That's all I have. BY MR. GOOD: Q Mr. Gorski, you said that you were on the project -- from the time you arrived at the project you were on the project approximately 90 to 95 percent of your time? A Yes. Q So pretty much every day? A Yeah, pretty much every day, yes. Q What were you doing? What were your duties? A Basically I was pricing out all the 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 contractors from every trade, I was trying to get it to, like, free estimates, looking for the local contractors, subcontractors. So I was meeting them at the job site, giving them blue prints and do all the estimating. Q And for how many days were you on the project before the construction began on the townhouses? A Almost every day. Q Was it for a week or a month or -- A It was a few months. Q A few months before they started? A Yes, yes. Q And did you have daily communications with Tom Varish? A No, not daily. They -- they said they gonna keep me posted how they going to do with the road and all the infrastructure. Q And do you know who Terry was? I don't know his last name. Terry? A Yes, I think he worked for Varish, yeah. Q Was he Varish's project superintendent? A Yes, I believe. Q Did you and Terry communicate on a daily basis? 9 rl 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Q So you didn't talk to him at all? A We talked, yeah, we talked. He said -- he's supposed to keep me informed how they going to do, when they going to finish, and but he didn't communicate it. Q So when there were -- when there were questions that Terry or Tom Varish had, did they talk to you about that? A Sometimes, yes. Q And what was your job as far as answering those questions? A Basically I called K&I office and then they called Harry Brill. Q Now, are you aware that Varish did site work to install pads and footers for certain lots on the premises? A They gave us proposals for that. Q Did they do the work? A On the both of them, yes. Q How about on this site work for Pads 16 through 19? Do you remember? A Sixteen through nineteen, yes. Q How about for 35 feet of boring under footers for Pad 11 through 15? Did they do that work? 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I don't remember. Q And are you -- are you familiar with a company called Hoover Engineering Services? A I never met this guy. We never -- I know there was some people showing up there, but I never have a chance to meet them. Q And did you make any decisions regarding payment to Varish? A No. I couldn't make that. Q That would be Mr. Zieja? A Not even him. That was Mr. Brill. Q But if K&I were to make payments to Varish, who would have made those payments? A That was probably through K&I because I -- I never handled the checks. I mean, for some of the contractors, when I was driving from Allentown to Carlisle, I was bringing checks for the contractors. Q Now, on this project there was a lot of blasting, wasn't there? A There was -- there was a little, not that much. Q Well, there was a fair amount of rock on the project? A It was rock, yeah. Q And there were invoices that were prepared 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 by Varish that were sent to K&I for blasting. Are you aware of that? A Yes, yes. Q Do you know why Varish was invoicing K&I? A I have no idea. Q Did you talk to Varish about that at all? A No. Q Were you involved with the issue regarding the manhole and raising the grade of the pipe to that manhole? A Which manhole? Q Manhole No. 7. This is the pipe between Manhole No. 7 and Manhole No. 6. Were you involved in that? A No, no. Q No involvement at all? A No. Q You weren't consulting with Varish on that or with Terry on -- A No, no, no, I wasn't, no. Q -- that issue? Can you -- were you aware of the problem? A There was some problems I heard from township. They had some problems that they were installed improperly by Varish. That's what I heard. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Who told you that? A Inspector from the townships. Q And why were you communicating with the inspectors from the township? A Because they -- they were there. They were there every day and they were telling me. Q And what was your job on this project? You were the project manager you said? A Yes. Q And what were your duties as project manager? A Overseeing the project. Q So that included speaking with township personnel? A Yes, basically yes, because I was pulling up the permits for the building, so. Q Any communications with any of the blasting subcontractors? A No. Q And you and Varish -- when I say Varish, I mean the company, it could be Terry or Tom, you did not talk to them during the project? A I spoke to them, yes, but not- -- not on a daily basis, no. Q On a weekly basis? 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I would say yeah, probably every -- every couple weeks or something like that. Q If I asked -- strike that. Did you inform Varish that you were the project manager? A Yes. Q How did you come to talk to the township regarding the manhole situation? A They were there on the job site and they knew I'm the project manager, so they actually came to me to talk to me. Q Are you aware that at some time Parker Springs told Varish to stop working on the project? A Yes. Q Were you part of that decision process? A No. Q You were just told? A I was just told, yeah. Q By whom? A By K&I. Q Did you instruct Varish to remove their materials from the project? A I don't remember that. Q Do you recall giving Varish any instructions at all on this project? A No. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Never? A No, never. Q You're sure of that? A Basically probably like clean up, stuff like that, clean up. Q Anything else? A No. Q Did Parker Springs have any project manager on site? A No. Q I mean besides yourself? A No. Yeah, no, no. Q And you were an employee of K&I? A Yes, yes. Q K&I paid your salary? A Yes. Q When did you become self-employed? A That was six months ago. Q Prior to that were you employed by -- A By K&I. Q And how long were you employed by K&I? A Two and a half years. Q Did you work in any other new construction projects besides this one? A Down in New York. 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q In New York state? A New York state, yeah. Q Had you ever done any project work at all in this area prior to this project? A No. Q I say this area, I mean Central. Pennsylvania, Carlisle, Harrisburg? A No, no, not this area, no. Q Were you living in Carlisle during the project? A Actually, I was staying in a hotel. Q When Varish discovered a problem on the project, say there was rock, as an example, and they needed to do blasting, would they let you know about that before they did their work? A They did, yes. Q And what was your response when they would tell you that? A Every time I -- he asked me something, and I wasn't sure, then I called to the office to K&I, then Konrad contact -- K&I contact Mr. Brill. Q Now, about when you did know the answer, like you said there's rock there; they said, We're going to blast. Did you say, Go ahead, blast? A No. 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q I mean, you were the project manager? A Yes, but I couldn't make any decisions. Q So every question Varish asked you -- A Yes. Q -- you had to call? A I had to call, yes. Q Let me finish my question. It's hard for the reporter. Every time you had a question you had to call Mr. Zieja? A Yes. Q You gave Varish no instructions without talking to Mr. Zieja? A That's right. Q So when Varish had a question, say, regarding blasting, they would just sit there and wait for you to get back to them before they did their work? A Yes. Q Okay. Then you would get back to them and say go ahead, do it? A Yes. Q Did this delay the project? A Not really. I was there every day. They had my cell phone number; they had e-mail address, so they shouldn't. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q My question was when they asked you a question, you were not allowed to give them an answer, you had to -- A Not right away. Q You had to call and get approval? A Yes, yes. Q How long would that take you? A Probably 15, 20 -- up to an hour. Q But you get an answer in the same day? A Yes, same day, yes. Q Now, was there a time that Mr. Brill was not available, he was sick and in Florida? A Yes. Q During that period of time, what was -- how did you handle the project? A Normally, as I did before. Q You just called Mr. Zieja? A Yeah. Q And he would give you the answers you needed? A Yes. Q Do you recall how long Mr. Brill was not available for questions? A It was a short period of time I would say. Q About three months or four months? 18 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Oh, no, I would say a couple weeks probably. Q I thought he was sick for several months? A Yeah, he was sick, but I think in the hospital he was for a week or so. I'm not sure. But it was a really short time. Q But he wasn't -- he was in Florida, correct? A He was in Florida. Q Wasn't in Pennsylvania? A Yeah, that's right. Q So for how many months was Mr. Brill not on the project physically? A How many months, the wintertime he usually spends in Florida, about once a month he's usually -- every month he's here in PA. Q Okay. Except for when he was sick? A Yeah. Q And that was a few months? A Yes. MR. GOOD: Nothing more. BY MR. REED: Q Just a couple follow-up questions. Mr. Gorski, are you aware of a contractor that performed work on the project that was known as TNT? A Yes. Q And what did they do? 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A They were actually subcontractor for Varish. Q Okay. They were a subcontractor for Varish? A Yes. Q What kind of work did they do? A They -- they supposed to do excavating, but I believe they were the first project as excavators, because TNT is cable. They do just cable work. Q Okay. And do you recall any proposals that you received from TNT? A Yes, they -- they give us some proposals for the -- for the pads. Q For the pads? A For the building, yes. Q Do you remember reviewing those? A Yes, I did, yes. Q And did you give them to -- A To K&I, yes. Q K&I, okay. Mr. Good asked you some questions about the time period that Mr. Brill was unavailable in Florida during his illness. And I think you said he may have been in the hospital for a week or so or maybe two weeks. Other than that period of time, was he available by phone in Florida? A Yes, yes. MR. REED: That's all I have. 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. GOOD: Q Did you ever call Mr. Brill yourself? A Sometimes, yes. When I couldn't reach K&I, then I called Mr. Brill. Q When you say K&I, you're an employee of K&I? A Yes, yes. Q You mean Konrad? A Yes, Konrad. Q Did you deal at all with PSI on the pumping station? A No. Q Was it your responsibility to oversee PSI installing the pumping station? A Yes, I did oversee, but it's -- I'm not -- I'm not -- I don't have knowledge about, you know, pump stations, so. MR. GOOD: Nothing further. (Proceedings concluded at.11:35 a.m.) 21 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMONWEALTH OF PENNSYLVANIA) ss COUNTY OF DAUPHIN ) I, HEATHER L. ARTZ, RMR, CRR, a Court Reporter-Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Mechanicsburg, Pennsylvania, do hereby certify the foregoing is the testimony of ZIGGY GORSKI taken by Plaintiff at METTE EVANS & WOODSIDE, 3401 North Front Street, Harrisburg, Pennsylvania. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down in stenotype by the said Reporter-Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. IN WITNESS WHEREOF, I have hereunto subscribed my hand this 29th day of October, 2008. 'COMMONWEALTH OF PENNSYLVANIA ,?? f, NOTARIAL SEAL ? HEATHER L. ARTZ, Notary Public NOTARY PUBLIC Lower Allen Twp., Cumberland County My Commission Expires Feb. 22, 2010 My Commission Expires February 22, 2010. 22 1 _ . 11[1]-9:25 15 [21- 9:25, 17:8 16 [11- 9:21 18106 [11- 4:19 19 [11 - 9:22 2 20 [11- 17:8 3 35[11-9:24 5 5480 [21- 4:17 6 6[11 - 11:13 7 7 [21- 11:12, 11:13 9 90 [4] - 5:25, 7:19 95 [31- 5:25, 7:19 A a.mt11-20:18 accurate [11 - 4:1 action [11- 3:14 address [21 - 4:16, 16:24 ago [11 - 14:18 ahead [21 - 15:24, 16:20 Allentown [11- 10:16 allowed [11 - 17:2 Almost [1l - 8:9 amount [11 - 10:22 answer [71 - 4:5, 4:11, 6:10,15:22, 17:2,17:9 answering [1] - 9:11 answers 121 - 3:22, 17:19 Apartment [11 - 4:18 approval [11 - 17:5 area 13] - 15:4, 15:6, 15:8 arrived [11 - 7:18 at.11:35 [11- 20:18 Attorney [1l - 3:20 available [3] - 17:12, 17:23,19:23 aware [51 - 9:15, 11:2,11:21, 13:11, 18:22 B basis [4] - 5:24, 8:25, 12:24, 12:25 become 111- 14:17 began [el - 5:10, 5:12,5:17,5:20, 5:21, 8:7 between [7] - 3:2, 6:6, 6:13, 7:2, 7:6, 11:12 blast [21 - 15:24 blasting [51- 10:19, 11:1, 12:17, 15:14, 16:15 blue [1] - 8:4 boring [11- 9:24 Brill [121- 7:1, 7:7, 9:14, 10:11, 15:21, 17:11, 17:22, 18:10, 19:19, 20:2, 20:4 bringing [11- 10:17 brought [1] - 3:14 building (21- 12:16, 19:13 BY [51- 3:11, 6:15, 7:16,18:20,20:1 C cable [21 - 19:7 Carlisle [31- 10:17, 15:7,15:9 cell [1l - 16:24 Central [11 - 15:6 certain [1] - 9:16 certification [11- 3:4 chance [11- 10:6 checking [11- 5:13 checks [21- 10:15, 10:17 clean [21 - 14:4, 14:5 Commons [6] - 3:13, 5:2,6:6, 6:17,6:22, 7:6 communicate [2] - 8:24, 9:6 communicating [11- 12:3 communications [21 - 8:14,12:17 company [21- 10:3, 12:21 concluded [11- 20:18 Construction [61- 3:15, 3:20, 6:4, 6:5, 6:20, 7:3 construction [41- 5:17, 5:19, 8:7, 14:23 consulting 111 - 11:18 contact [21- 15:21 contractor [1] - 18:22 Contractors [3] - 4:23, 5:5, 6:3 contractors [41- 8:1, 8:3,10:16,10:17 correct [11- 18:6 County [11- 5:2 couple 131 - 13:2, 18:1, 18:21 Cumberland [1] - 5:2 D daily 141 - 8:14, 8:16, 8:24, 12:24 days [11- 8:6 deal [2] - 7:14, 20:9 decision [11- 13:14 decisions [21 - 10:7, 16:2 delay [1] - 16:22 deposition [31- 3:16, 3:17, 6:23 diner [21- 6:24, 7:9 discovered [11 - 15:12 discussed [11 - 7:11 done [21- 5:10, 15:3 Down [11- 14:25 down [11- 4:12 driving 111- 10:16 duly [11- 3:9 During [1] - 17:14 during [41 - 5:9, 12:22, 15:9,19:20 duties [21 - 7:24, 12:10 E e-mail t1] - 16:24 employed [71- 4:20, 4:21, 4:22, 4:25, 14:17,14:19, 14:21 employee [21- 14:13, 20:5 Engineering [1] - 10:3 entered [11 - 7:2 erected [21- 5:11, 5:12 estimates [11- 8:2 estimating [11- 8:5 everyday [11 - 5:23 EXAMINATION [11 - 3:10 examined [1l - 3:9 example t11- 15:13 excavating 111 - 19:5 excavators [1] - 19:6 except [1l - 3:5 Except 11l - 18:15 F fair [11- 10:22 familiar[11- 10:2 far [1] - 9:11 feet [1] - 9:24 few [3] - 8:11, 8:12, 18:17 finish [21 - 9:5, 16:7 finished 111 - 4:11 first [31- 5:21, 6:10, 19:6 Florida 16] - 17:12, 18:6, 18:7, 18:13, 19:20, 19:23 follow [11 - 18:21 follow-up [11 - 18:21 follows 111 - 3:9 footers [21 - 9:16, 9:25 form [11- 3:5 four [1l - 17:25 frame [11- 5:15 free [1l - 8:2 G gonna [11- 8:16 GOOD [6] - 6:9, 6:14, 7:16,18:19, 20:1, 20:17 GORSKI [11- 3:8 Gorski [41- 3:12, 4:15, 7:17, 18:22 grade [11 - 11:9 guy [11- 10:4 H half [1] - 14:22 handle [1l - 17:15 handled [11 - 10:15 hard [11- 16:7 Harrisburg [1l - 15:7 Harry [21 - 7:6, 9:14 head [21- 4:6, 4:7 hear [21 - 3:24, 6:10 heard [21 - 11:23, 11:25 hereby [11- 3:2 hired [31 - 6:17, 6:20, 7:7 homes [3] - 5:10, 5:12, 5:17 Hoover [1] - 10:3 hospital [21- 18:4, 19:21 hotel [11- 15:11 hour [11- 17:8 idea [1] - 11:5 identified [11- 5:1 illness [1] - 19:20 important [1] - 3:24 improperly [11 - 11:25 Inc [41 - 3:15, 4:23, 5:6, 6:3 included [11- 12:13 inform [11- 13:3 informed [11- 9:4 infrastructure [11- 8:18 Inspector Ili - 12:2 inspectors [11 - 12:4 install [11 - 9:16 installed [11 - 11:25 installing [11 - 20:13 instruct [11 - 13:20 instruction [11 - 4:10 instructions [21 - 13:23, 16:11 invoices [11- 10:25 invoicing 111 - 11:4 involved [31 - 5:1, 11:8,11:13 involvement 111- 11:16 issue 121 - 11:8, 11:21 J job [41 - 8:4, 9:11, 12:7, 13:8 K K&I [271- 4:23, 5:5, 6:2, 6:6, 6:13, 6:17, 6:18, 7:2, 7:14, 23 9:13, 10:12, 10:14, 11:1, 11:4, 13:19, 14:13, 14:15, 14:20, 14:21, 15:20, 15:21, 19:17, 19:18, 20:3, 20:5 keep [21- 8:17, 9:4 kind [1] - 19:4 knowledge 11] - 20:15 known Ill - 18:23 Konrad [3] - 15:21, 20:7, 20:8 needed [21- 15:14, 17:20 never [71 - 7:13, 10:4, 10:5, 10:15, 14:2 Never Ill - 14:1 new [ll - 14:23 New 13] - 14:25, 15:1, 15:2 nineteen [11- 9:23 Normally [1] - 17:16 Nothing [2] - 18:19, 20:17 nothing [11- 6:12 number[il - 16:24 prepared [11 - 10:25 present 111- 625 pretty [2] 7:22, 7:23 pricing [i1- 7:25 prints [l] - 8:4 problem [2] - 11:22, 15:12 problems [2] - 11:23, 11:24 Proceedings [11- 20:18 process [11- 13:14 project [35] - 5:1, 5:6, 5:7, 5:8, 5:9, 5:14, 5:15, 7:18, 7:19, 8:7, 8:22, 10:18, 10:23, 12:7, 12:8, 12:10, 12:12, 12:22, 13:4, 13:9, 13:12, 13:21, 13:24, 14:8, 15:3, 15:4, 15:10, 15:13, 16:1, 16:22, 17:15, 18:11, 18:23, 19:6 projects [11- 14:24 proposals [31 - 9:18, 19:8,19:10 PSI [2] - 20:9, 20:12 pulling [i1- 12:15 pump [l] - 20:16 pumping [21 - 20:9, 20:13 10:1, 13:22, 19:14 remove [11- 13:20 repeated [il - 3:25 rephrased [11- 4:1 reporter 121- 4:11, 16:8 represent 111- 3:13 represents [11- 3:20 reserved Ill - 3:5 respective Ill - 3:3 response [l] - 15:17 responsibility Ill - 20:12 reviewing [i1 - 19:14 Road [21- 4:18 road Ill - 8:17 roads [21- 5:14, 5:20 rock [41 - 10:22, 10:24, 15:13, 15:23 role [21 - 5:5, 6:2 stations [11- 20:16 staying [i1- 15:11 stenographer [1] - 3:23 stipulated [1] - 3:2 STIPULATIONS Ill - 3:1 stop [l] - 13:12 strike [11- 13:3 stuff [11 - 14:4 subcontract [11 - 7:2 subcontractor [21 - 19:1, 19:2 subcontractors [21- 8:3, 12:18 superintendent [i1- 8:22 supposed [21- 9:4, 19:5 sworn [11- 3:9 L last [11- 8:20 litigation [11 - 3:23 living [1] - 15:9 local [l] - 8:2 looking [11- 8:2 M mail Ill - 16:24 manager[71- 5:7, 12:8, 12:11, 13:4, 13:9, 14:8,16:1 manhole [41- 11:9, 11:10, 11:11, 13:7 Manhole [31- 11:12, 11:13 materials [i1 - 13:21 mean [8] - 7:5, 7:13, 10:15, 12:21, 14:11, 15:6,16:1, 20:7 meet Ill - 10:6 meeting [4] - 6:24, 7:3, 7:8, 8:3 meetings [21- 7:10, 7:12 met [21 - 3:12, 10:4 Mike [1] - 3:12 month [3] - 8:10, 18:13, 18:14 months [9] - 8:11, 8:12, 14:18, 17:25, 18:2, 18:10, 18:12, 18:17 MR [>>1 - 3:11, 6:9, 6:14, 6:15, 7:15, 7:16, 18:19, 18:20, 19:25, 20:1, 20:17 N name 11l - 8:20 name's [l] - 3:12 O objections Ill - 3:4 office [21- 9:13, 15:20 once [i] - 18:13 one [21 - 4:22, 14:24 oversee 121 - 20:12, 20:14 Overseeing [11- 12:12 overseeing [l1- 5:8 P PA [2] - 4:18, 18:14 Pad [1] - 9:25 pads 13] - 9:16, 19:11, 19:12 Pads 1l1 - 9:21 paid [11- 14:15 Parker [81- 3:13, 5:2, 6:7, 6:17, 6:22, 7:6, 13:11, 14:8 part [2] - 6:10, 13:14 parties [i] - 3:3 payment [l1- 10:8 payments 121- 10:12, 10:13 Pennsylvania [31- 5:3, 15:7, 18:8 people Ill - 10:5 percent [3] - 5:25, 6:1, 7:19 performed pi - 18:23 period [41 - 17:14, 17:24, 19:19, 19:22 permits [i1- 12:16 personnel Ill - 12:14 phone [21- 16:24, 19:23 physically [11- 18:11 pipe 121- 11:9, 11:12 posted Ill - 8:17 premises [11 - 9:17 Q questions [81- 3:21, 3:22, 4:10, 9:8, 9:12, 17:23, 18:21, 19:19 Quince [11- 4:17 QUINCE [11- 4:18 quite Ill - 6:9 R raising [1] - 11:9 reach [i1- 20:3 really [21- 16:23, 18:5 received [i] - 19:9 record [i1- 4:16 recorded [1] - 3:22 REED [5] - 3:11, 6:15, 7:15, 18:20, 19:25 Reed [il - 3:13 regard [1] - 6:3 regarding [4] - 10:7, 11:8, 13:7, 16:15 remember [41 - 9:22, s T salary [l1- 14:15 sealing [U - 3:3 self 121 - 4:2 1, 14:17 self-employed [21 - 4:21, 14:17 sent [l1- 11:1 series [i1- 3:21 Services [il - 10:3 several Ill - 18:2 shaking 111- 4:6 short [21- 17:24, 18:5 showing [il - 10:5 sick [41- 17:12, 18:2, 18:3, 18:15 signing Ill - 3:3 sit [11 - 16:15 site [71- 5:10, 5:11, 8:4, 9:15, 9:21, 13:8, 14:9 situation [i1 - 13:7 six [V - 14:18 Sixteen Ill - 9:23 Sometimes [21- 9:10, 20:3 speaking Ill - 12:13 spends [1] - 18:13 Spring [l1- 6:7 Springs [7] - 3:13, 5:2, 6:17, 6:22, 7:6, 13:12, 14:8 start [11- 5:15 started Ill - 8:12 state [31- 4:16, 15:1, 15:2 station [21- 20:10, 20:13 Terry [61 - 8:19, 8:20, 8:24, 9:8, 11:19, 12:21 testified 121 - 3:9, 6:24 THE [1] - 6:12 three [11- 17:25 TNT [3] - 18:23, 19:7, 19:9 today [31- 3:16, 3:24, 4:4 Tom [31- 8:15, 9:8, 12:21 town [31- 5:10, 5:11, 5:17 townhouses [11 - 8:8 township [41 - 11:24, 12:4, 12:13, 13:6 townships [l] - 12:2 trade [l1 - 8:1 transcript [21 - 4:1, 4:7 trial Ill - 3:6 trying [2] - 5:15, 8:1 two [11- 19:22 Two [11- 14:22 U unavailable [il - 19:20 under [11- 9:24 UP [6] - 10:5, 12:15, 14:4, 14:5, 17:8, 18:21 24 V 10 Varish [341- 3:14, 3:20,6:3,6:5,6:13, 6:20, 6:23, 7:2, 7:7, 7:14, 8:15, 8:21, 9:8,9:15,10:8, 10:12,11:1, 11:4, 11:6,11:18,11:25, 12:20,13:4,13:12, 13:20,13:23, 15:12,16:3,16:11, 16:14, 19:1, 19:2 Varish's [11- 8:22 verbal [11- 7:1 verbally [1] - 4:6 W wait [21 - 4:10, 16:15 waived [ij - 3:4 week [31 - 8:10, 18:4, 19:22 weekly [11 - 12:25 weeks [31- 13:2, 18:1, 19:22 Wescosville [1] - 4:18 wintertime [11 - 18:12 witness [i] - 3:8 WITNESS [11 - 6:12 Y years [i1- 14:22 York [3] - 14:25, 15:1, 15:2 yourself [2] - 14:11, 20:2 Zieja [5] - 6:25, 10:10, 16:9,16:12, 17:17 ZIGGY [11 - 3:8 cr) C"? ORIGINAL D 'ARISH CONSTRUCTION, INC., Plaintiff V CHE COMMONS AT PARKER SPRINGS, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-7500 MLD CIVIL ACTION - LAW JURY TRIAL DEMANDED DEPOSITION OF: THOMAS E. VARISH TAKEN BY: DEFENDANT BEFORE: JEAN M. DAVIS, REPORTER NOTARY PUBLIC DATE: OCTOBER 6, 2008, 12:05 P.M. PLACE: SMIGEL, ANDERSON & SACKS, LLP 4431 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA • APPEARANCES: SMIGEL, ANDERSON & SACKS, LLP BY: PETER M. GOOD, ESQUIRE 4431 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA 17110 1717.234.2401 FOR - PLAINTIFF METTE, EVANS AND WOODSIDE BY: MICHAEL D. REED, ESQUIRE 3401 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA 17110 717.232.5000 FOR - DEFENDANT Jean Davis Reporting 140 Peregrine Lane • Hummelstown, PA 17036 (717) 503-6568 • Fax (717) 566-5599 2 • 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I N D E X WITNESS NAME THOMAS E. VARISH BY MR. REED BY MR. GOOD EXAMINATION 3, 27 26 0 25 3 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, and certification are hereby waived and that all objections except as to the form of the question are reserved to the time of trial. THOMAS E. VARISH, called as a witness, being duly sworn, testified as follows: EXAMINATION BY MR. REED: Q Mr. Varish, could you state your name for the record, please? A Thomas E. Varish, V-a-r-i-s-h. Q And what is your address, sir? A 800 Bullfrog Road, Gettysburg, PA. Q We met previously. My name is Michael Reed, and I represent The Commons at Parker Springs, Inc., in this mechanics' lien action that you have instituted. I'm going to be asking you a series of questions today, and both my questions and your answers will be transcribed by the stenographer. For that reason, it's important that you hear and understand my questions and that you answer them as 4 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fully and truthfully as you can. Do you understand that? A Yes. Q And so for that reason, if there's any time today where you don't hear or understand a question of mine, I would ask you to ask me to repeat it or rephrase it and I'll be glad to do that. Do you understand? A Yes. Q The mechanics' lien action that I referred to was brought by a corporation named Varish Construction, Inc. Is that the corporation with which you're affiliated? A Yes. Q And what is your position with Varish Construction, Inc.? A President. Q Are you the sole shareholder of Varish Construction, Inc.? A Yes. Q Are there any other officers other than you, sir? A No. Q Is there a board of directors? A No. 5 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q When was Varish Construction, Inc., incorporated, if you can recall? A I believe in 1993. Q Is that a Pennsylvania corporation? A Yes. Q What type of work does Varish Construction, Inc., do? A General construction. Q Okay. Did you have any experience in general construction before 1993? A Yes. Q What was that experience, if you could just briefly describe it for me? A I worked for various companies doing construction. Q How many years before 1993 would you estimate that you worked? A Since 1980. Q Okay. And since 1993, your primary occupation has been as president and owner of Varish Construction, Inc.; is that correct? A Yes. Q And in that capacity, does your company sometimes perform as a contractor on a project, a general contractor? 6 is r? • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q Have you also had occasion to perform as a subcontractor on projects? A Yes. Q And so you know the difference between being a contractor and a subcontractor? A Yes. Q Have you ever filed any lien claims as Varish Construction, Inc., prior to this lien claim? A I'm not sure. Q Okay. I'm going to show you -- and you can review it with your attorney if you like. I don't think we need to mark this as an exhibit. It's just a copy of the lien claim that you filed with the exhibits attached to it. MR. REED: I'll give you an extra one, Peter. MR. GOOD: I have it. MR. REED: This is already a matter of record with the Court, so I don't think we need to make it an exhibit. I just have some questions about the document. BY MR. REED: Q This lien claim relates to the project that was owned by The Commons at Parker Springs, correct? A Yes. 7 • • U 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And that project was initiated, at least from your perspective, pursuant to a Contractor Agreement that you signed on June 21, 2006; is that correct? A Some of it, yes. Q What part of that is not correct? A The part that was billed to K&I. Q I'm not asking you about what was billed to someone. I'm asking, was the project started out as a contract between you and The Commons at Parker Springs? A Yes. MR. GOOD: I'm going to object to the term and just make sure we define what you mean by "project." MR. REED: Okay. BY MR. REED: Q The project that I'm referring to is the subdivision known as The Commons at Parker Springs located in North Middleton Township, Cumberland County, Pennsylvania. Are you familiar with that project? A Yes. Q Any time I refer to the word "project" today, I'll be referring to that overall project. Do you understand that? 8 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Is it the mechanics that were under the original contract or what was beyond the original contract? Q We'll get into that. I understand that you're filing this -- you say you're filing this as a subcontractor and I'm going to get into that, obviously. A Okay. Q But I'm asking now just about -- we're not talking about the lien claim yet. We're only talking about the contract. A Okay. Q You entered into a contract with The Commons at Parker Springs to do work on this project; is that correct? A Yes. Q And as part of that contract, you also entered into a stipulation against liens that is the last page of Exhibit B to your lien claim. Do you see that? A Yes. Q And that is your signature, "Thomas E. Varish, President"? A Yes. Q And you understood that by signing that 9 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stipulation against liens, that you as contractor were not going to be permitted to file any lien claims against the owner, The Commons at Parker Springs; is that correct? MR. GOOD: Objection. You can answer. THE WITNESS: At the time, no, I did not understand it. BY MR. REED: Q You didn't understand it? A No. Q But you signed it? A Yes. Q Okay. Did you ask anybody to explain it to you? A I believe I asked McFadden. Q What do you recall him saying? A I asked if -- I was under the impression that this was for my subs, not for me. Q But you don't dispute that this document, which says whatever it says, you signed it, right? A Yes. Q And whatever it says, you were agreeing to be bound by whatever it says, right? MR. GOOD: Objection. 10 • 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 You can answer. THE WITNESS: Yes. But that wasn't your question before. BY MR. REED: Q I'm not asking you that. You agreed to be bound by what this document said when you signed it? A Yes. Q Okay. What was your scope of work under the contract that you entered into with The Commons at Parker Springs? A To do the infrastructure. Q And infrastructure would include grading and excavation; is that right? A The area of grading and excavation was only the area that I had to put the mechanics on, yes. Q And it would also include the installation of the sanitary sewer? A Yes. Q And the storm sewer? A Yes. Q And the water line? A Yes. Q And certain paving and curbs as described in the contract? 11 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q And then other general conditions were also listed, is that right, as part of your price? A The supervision, mobilization. Q Mobilization? A Yes. Q And then there was also a reference in an earlier deposition today to a pump station. What was your scope of work with regard to the pump station? Was that part of the sanitary sewer? A Yes. On No. 14, it says "lift station." Q So that would have been the pump station you referred to earlier? A Yes. Q The lift station, No. 14, under sanitary sewer to include the following; is that right? A Yes. Q When you began work on the project or at some time before or after that, did you become familiar with an entity known as K&I Construction? A Yes. Q And what did you understand their role in the project to be? A They were in charge of building the condos. Q This mechanics' lien claim -- and let me just 12 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 back up for a second. The mechanics' lien claim as a verification -- it's the page before Exhibit A -- could you look at that? A Yes. Q The page before Exhibit A. A Yes. Q Looking at that verification page, is that your signature, sir? A Yes. Q And it's dated 12/12/07? A Yes. Q The date on the front of the document indicating the date that it was likely filed is also 12/12/07. Do you also see that? A Yes. Q And there's a document of Certificate of Service at the end of the document that's also dated 12/12/07. Do you see that? It's the last page of the entire document after the exhibits. A Okay. Q And it's also dated 12/12/07, correct? A Yes. Q All right. To the best of your knowledge, was this lien claim filed on your behalf by your 13 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 counsel on or around December 12th, 2007? A I'm not sure when it was filed. Q Okay. In paragraph 3 of your lien claim, you state in the first sentence of that paragraph that Varish makes this claim as a subcontractor. To whom was Varish a subcontractor on this project? A K&I. Q And when did you enter into a subcontractor with K&I? A When they -- verbally when they started taking over the direction of the project. Q Okay. Let me just clear this up. There's no written subcontract between you and K&I; is that correct? A They would not sign one. Q Did you provide one to them that you wanted them to sign? A Yes. Q And they refused to sign it? A Yes. Q Did you write them a letter and confirm that you understood yourself to be a subcontractor to them? A I believe we may have. I will have to verify 14 r • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. Q You don't have any such letter with you today, do you, sir? A No. Q And there's no such letter attached as an exhibit to this complaint, is there? A No. Q So you're saying that this is an oral agreement between you -- oral subcontract between you and K&I; is that right? A Yes. Q Who at K&I did you enter into that oral subcontract with? A Both a guy that said he was -- his name was Ziggy. And another guy said he was Konrad. I met them with Harry Brill. Q Where did you meet them? A At a diner. Q Is this the meeting at the diner near Allentown that Mr. Brill referred to in his deposition? A No. It was the one in December. Q December of what year? A When was the contract? Q The closing was June of 2006. 15 i • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. It was December. Somewhere around November or December of 2006. Q You had a meeting with Mr. Brill and Ziggy and Konrad? A Yes. Q And you're saying that this oral subcontract was entered into at that meeting? A Yes. Q And what were the specific discussions that you contend constituted a subcontract? A At that time, they started asking me to do footers, asked me if I'd be interested in doing building pads and various items like that that was beyond my contract. Q Okay. Items that were related to the houses? A Yes. Q And so are those the items that you're contending you entered into a subcontract with K&I? A Yes, some of them. Q Are there any other items that you entered into as a subcontract with K&I? A At that time, no. When they assumed -- say that question again. Q Were there any other items -- other than the 16 1] 17-J • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ones related to the houses, which you've talked about the footers and the building pads -- any other items that you entered into a subcontract with K&I? A Yes. Q What were those items? A Probably the listing of the invoices. Q Okay. You're referring to the invoices that are attached as Exhibit B to the complaint; is that right? A Yes. Q And these are the invoices that you contend are unpaid to you; is that right? A Yes. Q And therefore, these invoices make up the amount of the lien claim that you are bringing? MR. GOOD: Objection. You can answer. THE WITNESS: I'm not sure. BY MR. REED: Q Why are you not sure about: that, sir? A You said -- I wasn't sure I understood the question on lien claim. Q You filed a lien claim that you verified, entitled "Mechanics' Lien Claim," this very document that we're looking at. 17 • 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Okay. Q And I'm asking if these invoices comprise the unpaid amounts that you're saying you're due pursuant to the lien claim? A I'm sorry. I don't understand the question. Q You have certain -- I asked you what other items other than the footers and the building pads you had entered into to subcontract with K&I about, and you said the items that were reflected in these invoices that are attached as Exhibit B to your complaint. A Yes. Q And I asked you then if those were the invoices that you contend are unpaid, and you said yes. So I asked you then, and I'll ask you again, does that comprise the entire amount that you are pursuing as this lien claim? MR. GOOD: Note my objection. I think the document speaks for itself as to the lien claim. MR. REED: It doesn't, so that's why I'm asking. THE WITNESS: I'm not sure. BY MR. REED: Q Okay. Your lien claim at paragraph 5 18 • 11 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 contains a tabulation of amounts claimed to be due and owing. Do you see that? A Yes. Q Did you review that before you verified the document? A It's been awhile. Q Okay. Is that amount correct, the $3,600? A I believe so. Q Are you contending that the balance on the unpaid contract price -- is that a contract with K&I or a contract with Commons at Parker Springs? A I'm not sure. I think it might be some of both. Q Okay. The balance on the unpaid invoices is in the amount identified as $112,901.30. Are those the unpaid invoices that are attached here as Exhibit B? A I'd have to add them up. Q The item C in your tabulation at paragraph 5, identified as a cost of unused water pipe and other materials at $37,730.18, does that refer to materials that you purchased for this project but which were never installed or supplied to the project? A I guess it speaks for itself, unused pipe and -- 19 • 17-? • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q No, it doesn't speak for itself. You have here -- A I'm not sure what the other materials are. I'd have to go over the invoices. Q Sir, I'm not asking what your other materials were. I'm just asking you whether this item refers to materials which were used at the site or not used at the site. A Not used. Q Okay. And then there's an item $2,400 for removal of materials. What materials does that refer to, if you recall? A C. Q So that would refer to items that were brought to the site and then eventually removed by you; is that right? A Yes. Q And this $2,400 represents your cost to do that removal? A Yes. Q Okay. And then cost for storage materials at $4,500. What does that refer to? A For the cost of storing that material at that time, which it has gone up since then. 20 r • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q With respect to your subcontract with K&I that you've alleged, this oral subcontract, you said that part of it was entered into at the meeting at the diner that you referred to in November or December of 2006, and then it was added to somehow -- I think you said when K&I took over supervision of the project or words to that effect; is that right? A Yes. Q In what time frame did that occur, if you recall? A Various stages from the December meeting when Harry was -- I could not contact Harry. Q And did somebody at K&I tell you that you were to do the work for them as opposed to doing it for The Commons at Parker Springs? A Yes. Q Who told you that? A Konrad. I can't pronounce his last name. Q And when did he tell you that? A Prior to doing the work. I'm not sure of the date. Q The work that you invoiced for the invoices that are included as Exhibit B, were they within the scope of your original contract to The Commons at Parker Springs or not? 21 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Q None of this work in any of these invoices was within your original scope of work? A I don't believe it was. Q When you are in a general contract with an owner and you encounter work which is beyond the scope of your contract, how do you normally amend your contract to identify that work? A I give proposals prior to work. Q And usually a change order is issued; is that right? A It depends. Some of it will be a proposal and some of it will be a change order. Q And that is a method for you and the owner to amendment the contract price by identifying work that has come up that's beyond the scope of what you're originally contracted to do; is that right? A Yes. Q Why, in this case, did you not follow that procedure? Why did you enter into a subcontract with K&I instead of doing that? A Harry Brill was not available. And it was my understanding that K&I was taking over the pads and the various items at the site. Q The pads which are part of the building, 22 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct? A Yes. Q But what about the part that you were originally involved with with The Commons at Parker Springs, the site work and the utilities? Did you understand K&I to be taking over that part of the work also? A Harry and K&I made it -- I'll put it this way -- fuzzy and confusing. Q So you weren't sure whether K&I had taken over that part or not? A Again, Harry was -- I could not contact him. Q Okay. A And they made it very confusing and fuzzy in any direction. Q The total claim that you've tabulated at paragraph 5 of your lien claim of $306,872, I'll represent to you that that total far exceeds the total amount of the invoices attached as Exhibit B, if those were totaled up. Are there other invoices to K&I that exist other than the ones attached to your complaint as Exhibit B? MR. GOOD: Objection. 23 • • C7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Other invoices? Other unpaid invoices or paid invoices? MR. REED: Right. Unpaid. MR. GOOD: Okay. THE WITNESS: Unpaid invoices. BY MR. REED: Q To K&I, is the critical part of the question. In other words, you have unpaid invoices to K&I attached as this Exhibit B. They total -- I'll represent to you they total approximately; I'm not going to say it's exact -- but approximately the $112,000 that you have listed as small "b" under paragraph 5. For these other items, A, C, D, and E, did you issue any invoices to K&I with respect to those amounts? A No. Q Did you issue any invoices to The Commons at Parker Springs with regard to those amounts? A I'm not sure. Q I believe the docket in this matter will reflect the fact that this lien claim was filed on December 12, 2007. A Okay. 24 0 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Are you aware of any written notice that you provided to The Commons at Parker Springs, Inc., prior to December 12, 2007, that you intended to file a lien claim? A I believe they were notified, yes. Q Can you provide me today with a copy of any written notice that you provided to The Commons at Parker Springs prior to December 12th, 2007? A I believe I can get one, but I don't have it with me today. I don't have it with me. MR. REED: Let me just say on the record, if there is such a notice that's out there, I have not seen it, and it's important to the claim here. Peter, if you're aware of it and can produce it, I would ask that you do that now so that I can ask some questions about it. MR. GOOD: I can consult with my client on that. But I can tell you that the only notice that I'm aware of is the e-mail communication between you and I. MR. REED: An e-mail to me? MR. GOOD: Yes. MR. REED: An e-mail where you asked me if I would accept service of this claim; is that right? MR. GOOD: That's correct. 25 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. REED: That's the only notice I'm aware of also. Is there any other written notice? is what I'm asking. THE WITNESS: I'm not sure. MR. REED: If there is any, I would ask that you supplement the record of this deposition, and I'm going to have to ask to resume and ask a couple questions if it does exist. I don't think it exists, because I haven't seen it. MR. GOOD: Okay. MR. REED: If we find afterwards that that exists, I'm going to reserve the right to ask a couple of questions about it. MR. GOOD: Sure. MR. REED: I'm done other than that. I don't have anymore questions. Do you want to take a break and see if you can find anything and let me know? MR. GOOD: Sure. (Break.) BY MR. REED: Q Mr. Varish, you've taken some time off the record with your counsel to look. Are you aware of any document constituting a written notice of your 26 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 intent to file a mechanics' lien prior to the actual filing of it? A I believe there may be one. Q And what document is that? A That I contacted K&I. Q You mean a letter? A Yes. Q Do you have that with you today? A No. Q Is that something that you would have in your files at your office? A Yes. Q Can you produce that to me through your attorney? A Yes, if I find it. But also, you could contact K&I. They may have a copy, too. Q I don't choose to do that. A Okay. Q Your deposition is here, and I want to ask you about it. A Okay. MR. REED: Okay. That's all I have. MR. GOOD: I just have one question. EXAMINATION BY MR. GOOD: 27 E • C: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Mr. Varish, Mr. Reed walked you through paragraph 5 of the mechanics' lien claim that you filed. A Yes. Q Regarding the C and D issues, the cost of unused materials and the cost for removal of the materials, did K&I give you instructions regarding those items? A Yes. Q What instructions did K&I give you? A They told me to remove the items. MR. GOOD: That's all I have. MR. REED: One follow-up question. EXAMINATION BY MR. REED: Q You mentioned, in saying that you think there may be a document giving notice of your intention to file the lien claim, you said that you thought you might have done a letter to K&I. Isn't that what you said? A Yes. Q Are you aware of whether or not you ever gave any such letter to The Commons at Parker Springs? A I will have to check on that. I may have sent both of them the same letter. 28 171 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. REED: Can we agree to leave the deposition open until that's provided? MR. GOOD: Yes. Is there anything else you want to add? THE WITNESS: Again, they would not do, for some reason, nothing on paper, nothing documented. They were very adamant and made it very confusing all through this project not to sign anything or accept papers. BY MR. REED: Q Well, when you got to the point of filing a lien claim, I don't think you were in the mood to cooperate with them much anymore, were you? A Cooperate? Q Sir, when you filed the lien claim, you had already filed another civil action against both K&I and The Commons at Parker Springs; isn't that right? A I believe I may have. Q You did. You previously filed a civil action against The Commons at Parker Springs, K&I, and PSI Pumping, correct? A Yes. Q And so at the time I'm asking about, when you would have been giving notice of filing a later mechanics' lien claim, at that point. you weren't 29 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 failing to provide written notice out of any kind of cooperation with K&I or The Commons at Parker Springs, were you? A I was always trying to negotiate or cooperate with them, yes. Q At that point, after you had sued them, you pretty much decided to fight over what you felt you were due and owed; isn't that right? A But I always negotiated. Is that what you're -- Q No. I'm asking whether you had any -- you seem to be saying that the reason you may not have sent a written notice is that they didn't like things in writing. A Right. Q I'm saying that that is a ridiculous statement, because at that point you had already sued them, hadn't you? A No, no, no. I'm saying I sent letters throughout the whole project, but they would not sign anything or verify anything. That's what I'm saying. Q I'm now talking about a notice of an intent to file a mechanics' lien. I'm not talking about any other issues. 30 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A Okay. Q Just with respect to your notice to The Commons at Parker Springs as the owner of this project, that you were about to put a lien on their property, did you send them a written notice of that? And your answer was, you may have. A Yes. I'll have to verify that. MR. REED: I'll wait to hear from you. MR. GOOD: Thank you. (The deposition concluded at 12:40 p.m.) 0 25 31 1 STATE OF PENNSYLVANIA SS. 2 COUNTY OF DAUPHIN 3 I, Jean M. Davis, a Reporter Notary Public, 4 authorized to administer oaths within and for the 5 Commonwealth of Pennsylvania and take depositions in 6 the trial of causes, do hereby certify that the 7 foregoing is the testimony of THOMAS E. VARISH. 8 I further certify that before the taking of 9 said deposition, the witness was duly sworn, that the 10 questions and answers were taken down stenographically 11 by the said reporter, Jean M. Davis, a Reporter Notary 12 Public, approved and agreed to, and afterwards reduced 13 to typewriting under the direction of the said 14 Reporter. 15 I further certify that the proceedings and 16 evidence are contained fully and accurately in the 17 notes by me on the within deposition and that this 18 copy is a correct transcript of the same. 19 In testimony whereof, I have hereunto 20 subscribed my hand and seal this 2nd day of November, 21 2008. 22 G?'JQ 23 Jean M. Davis, Reporter 24 Notary Public My commission expires: 25 March 29, 2012 Jean M. Davia, Notary public xnmission Expires Muoh 28. 0 32 to E $112,000 (i1- 23:13 $112,901.30 [11- 18:15 $2,400121- 19:11, 19:19 $3,600 Ill- 18:7 $306,872 [1l - 22:18 $37,730.18 Ill - 18:21 $4,500 [i]- 19:23 1:20 717.234.2401 [i) - 1:16 800 Ill - 3:16 A accept 121 - 24:24, 28:8 accurately [i) - 31:16 ACTION ill - 1:3 action [41- 3:19, 4:10, 28:16, 28:19 actual ill - 26:1 adamant Ill - 28:7 add [21- 18:18, 28:4 added Ill - 20:5 address (i1- 3:15 administer Ill - 31:4 affiliated Ill - 4:13 afterwards [21- 25:12, 31:12 agree (i 1- 28:1 agreed [2) - 10:6, 31:12 agreeing [1) - 9:23 Agreement (i 1- 7:2 agreement [i1- 14:9 alleged [11- 20:2 Allentown Ill - 14:20 amend [1) - 21:7 amendment (i 1- 21:15 amount[51- 16:15, 17:16, 18:7, 18:15, 22:20 amounts (41- 17:3, 18:1, 23:17, 23:20 AND Ill - 1:18 ANDERSON [2) - 1:10, 1:14 answer [51- 3:25, 9:6, 10:1, 16:17, 30:6 answers (21- 3:23, 31:10 APPEARANCESpl- 1:13 approved Ill - 31:12 area [21- 10:15, 10:16 assumed Ill - 15:23 ATlil- 1:3 attached [8) - 6:15, 14:5,16:8,17:10, 18:16, 22:20, 22:23, 23:10 attorney [21- 6:12, 26:14 authorized [1l - 31:4 available 111- 21:22 07-7500 [11- 1:2 12 [21- 23:24, 24:3 12/12/07 [41- 12:11, 12:15, 12:19, 12:22 12:05(11 - 1:9 12:40(11-30:11 12th (21- 13:1, 24:8 14[2)-11:11,11:15 17110121- 1:15, 1:19 1980[1]-5:18 1993141- 5:3, 5:10, 5:16, 5:19 2 2006 [41- 7:3, 14:25, 15:2, 20:5 2007 [4l - 13:1, 23:24 24:3, 24:8 200812) - 1:9,31:21 2012 (11- 31:25 21 [1] - 7:3 26(i1-2:6 27(11-2:5 29[11-31:25 2nd (11- 31:20 3 3[21-2:5, 13:3 3401 Ill - 1:19 4 4431 [2) - 1:11, 1:15 5 5 (51- 17:25, 18:19, 22:18, 23:14, 27:2 6 6[11- 1:9 7 717.232.5000 Ill - aware [61- 24:1, 24:14, 24:19, 25:1, 25:24, 27:22 awhile [iI - 18:6 B balance (21- 18:9, 18:14 become Ill - 11:19 BEFORE Ill - 1:8 began [i1 11:18 behalf Ill 12:25 bestli) - 12:24 between (71- 3:2, 6:5, 7:9,13:14,14:9, 24:19 beyond [4) - 8:2, 15:14, 21:6, 21:16 billed [21- 7:6, 7:7 board [i1 - 4:24 bound (21- 9:24, 10:6 break Ill - 25:18 Break [iI - 25:21 briefly ill - 5:13 Brill [41- 14:16, 14:20, 15:3, 21:22 bringing ill - 16:15 brought (21- 4:11, 19:16 building (51- 11:24, 15:13,16:2,17:7, 21:25 Bullfrog Ill - 3:16 BY 1171- 1:7,1:14, 1:18, 2:5, 2:6, 3:11, 6:22,7:16,9:9,10:4. 16:19,17:24, 23:6, 25:22, 26:25, 27:15, 28:10 C capacity [i1 - 5:23 case (iI - 21:19 causes [11- 31:6 certain (21- 10:24, 17:6 Certificate [1l - 12:17 certification (1) - 3:4 certify [3) - 31:6, 31:8, 31:15 change [21- 21:10, 21:13 charge (i1- 11:24 check [il - 27:24 choose [1] - 26:17 CIVIL [1) - 1:3 civil (21- 28:16, 28:19 Claim [11- 16:24 claim [281- 6:9, 6:14, 6:23,810, 8:19, 11:25,12:2,12:25, 13:3,13:5,16:15, 16:22,16:23,17:4, 17:17,17:20,17:25, 22:17, 22:18,23:23, 24:4, 24:13, 24:24, 27:2, 27:18,28:12, 28:15,28:25 claimed [11- 18:1 claims [21- 6:8, 9:2 clear [iI - 13:13 client [i) - 24:17 closing (11- 14:25 commission [11 - 31:24 COMMON [i) 1:1 Commons [191- 3:18, 6:24, 7:9, 7:18, 8:13, 9:3,10:10,18:11, 20:15, 20:24, 22:4, 23:19, 24:2, 24:7, 27:23, 28:17, 28:20, 29:2, 30:3 COMMONS Ill - 1:3 Commonwealth [1l - 31:5 communication Ill - 24:19 companies (i) - 5:14 company ill - 5:23 complaint (41- 14:6, 16:8,17:11, 22:23 comprise (21- 17:2, 17:16 concluded [i1- 30:11 conditions [i ) - 11:2 condos ill - 11:24 confirm Ill - 13:22 confusing [3) - 22:9, 22:15, 28:7 constituted [1) - 15:10 constituting [11- 25:25 Construction [8) - 4:12, 4:16, 4:19, 5:1, 5:6, 5:21, 6:9, 11:20 CONSTRUCTION (1) - 1:1 construction (31- 5:8, 5:10, 5:15 consult Ill - 24:17 contact (31- 20:12, 22:12, 26:16 contacted (ii - 26:5 contained (1) - 31:16 contains Ill - 18:1 contend [31 - 15:10, 16:11,17:14 contending [21- 15:19, 18:9 contract (181- 7:9, 8:2,8:3, 8:11, 8:13, 8:17,10:10,10:25, 14:24, 15:14,18:10, 18:11, 20:24, 21:5, 21:7,21:8,21:15 contracted Ill - 21:17 contractor (41 - 5:24, 5:25,6:6,9:1 Contractor([] - 7:2 cooperate [2) - 28:13, 29:4 Cooperate [i1- 28:14 cooperation ill - 29:2 Copy [41- 6:14, 24:6, 26:16,31:18 corporation [31- 4:11, 4:12, 5:4 correct (131- 5:21, 6:24,7:3,7:5, 8:15, 9:4,12:22,13:15, 18:7, 22:1, 24:25, 28:21, 31:18 cost (6l - 18:20, 19:19, 19:22,19:24, 27:5, 27:6 counsel [3) - 3:2, 13:1, 25:24 COUNTY [2) - 1:1, 31:2 County [i1- 7:20 couple [21 - 25:8, 25:13 COURT [i) - 1:1 Court (i1- 6:19 critical ill - 23:7 CUMBERLAND [11- 1:1 Cumberland Ill - 7:19 curbs (il - 10:24 D DATE Ill - 1:9 date [31- 12:13, 12:14, 20:21 dated 131- 12:11, 12:18,12:22 DAUPHIN [i) - 31:2 DAVIS (1) - 1:8 Davis [31- 31:3, 31:11, 31:23 December [io1- 13:1, 14:22,14:23, 15:1, 15:2,20:4,20:11, 23:24, 24:3, 24:8 decided (11- 29:7 Defendant [1) - 1:4 DEFENDANT (21- 1:7, 1:21 define [i l - 7:13 DEMANDED [1) - 1:4 deposition (al - 11:8, EAN DAVIS REPORTING PHONE (717)503-6568 FAX (717)566-5599 33 to • • 14:21, 25:7, 26:19, 28:2, 30:11, 31:9, 31:17 DEPOSITION [1) - 1:6 depositions 111- 31:5 describe (11- 5:13 described 11) -10:24 difference 111- 6:5 diner[31- 14:18, 14:19, 20:4 direction 13] - 13:12, 22:16, 31:13 directors [11 - 4:24 discussions [11- 15:9 dispute 111- 9:20 docket 11) - 23:22 document (131- 6:21, 9:20,10:6, 12:13, 12:17,12:18, 12:20, 16:24,17:19,18'.51 25:25, 26:4, 27:17 documented 111- 28:6 done 121- 25:16, 27:19 down ill-31:10 due [31- 17:3, 18:1, 29:8 duly [21- 3:9, 31:9 E e-mail [31- 24:19, 24:21, 24:23 effect 111- 20:7 encounter 111- 21:6 end 111- 12:18 enter [3) - 13:9, 14:12, 21:20 entered 191- 8:13, 8:18, 10:10, 15:7, 15:19,15:21, 16:3, 17:8, 20:3 entire [21- 12:20, 17:16 entitled (1) - 16:24 entity 11) - 11:20 ESQUIRE [21- 1:14, 1:18 estimate [11- 5:16 EVANS 11l - 1:18 eventually [11- 19:16 evidence (1) - 31:16 exact 11] - 23:12 EXAMINATION (41- 2:3, 3:10, 26:24, 27:14 excavation 121- 10:14, 10:15 exceeds 11l - 22:19 except 11) - 3:5 Exhibit(1ol - 8:19, 12:3,12:6,16:8, 17:10,18:17, 20:23, 22:20, 22:24, 23:10 exhibit 131- 6:13, 6:20,14:6 exhibits [21- 6:15, 12:20 exist 121- 22:22, 25:9 exists (21- 25:9, 25:13 experience [2) - 5:9, 5:12 expires 11) 31:24 explain (11- 9:14 extra (1) - 6:16 F fact (1l - 23:23 failing 111 - 29:1 familiar 121- 7:21, 11:19 far [1) - 22:19 felt (11- 29:7 fight 111- 29:7 file [51- 9:2, 24:3, 26:1, 27:18, 29:24 filed [111- 6:8, 6:14, 12:14, 12:25, 13:2, 16:23, 23:23, 27:3, 28:15, 28:16, 28:19 files [11- 26:11 filing [51- 8:5, 26:2, 28:11, 28:24 first [11- 13:4 follow [2) - 21:19, 27:13 follow-up (1) - 27:13 following 11l - 11:16 follows [11- 3:9 footers 131 - 15:12, 16:2, 17:7 FOR (2) - 1:17, 1:21 foregoing 11) - 31:7 form (11- 3:5 frame (1) - 20:9 front (11- 12:13 FRONT [3) - 1:11, 1:15, 1:19 fully [21- 4:1, 31:16 fuzzy [21- 22:9, 22:15 G General [11- 5:8 general 141- 5:9, 5:25, 11:2, 21:5 Gettysburg 111- 3:16 glad [11- 4:7 GOOD [21) - 1:14, 2:6, 6:17, 7:12, 9:5, 9:25, 16:16, 17:18, 22:25, 23:4, 24:17, 24:22, 24:25, 25:11, 25:15, 25:20, 26:23, 26:25, 27:12, 28:3, 30:9 grading [2) - 10:13, 10:15 guess 11) - 18:24 guy (21- 14:14, 14:15 H hand 111- 31:20 HARRISBURG (31- 1:11, 1:15, 1:19 Harry [61- 14:16, 20:12, 21:22, 22:8, 22:12 hear (31- 3:24, 4:5, 30:8 hereby (31- 3:2, 3:4, 31:6 hereunto (1I - 31:19 houses 121 - 15:16, 16:1 identified 121- 18:15, 18:20 identify Ill - 21:8 identifying lit - 21:15 important [21- 3:24, 24:13 impression (11- 9:18 IN 111- 1:1 Inc 191- 3:18, 4:12, 4:16, 4:19, 5:1, 5:7, 5:21, 6:9, 24:2 INC(21- 1:1, 1:4 include 13) - 10:13, 10:17,11:16 included [1) - 20:23 incorporated 111- 5:2 indicating 11l - 12:14 infrastructure (21- 10:12, 10:13 initiated I1) - 7:1 installation (11- 10:17 installed 111- 18:23 instead 111- 21:21 instituted ill - 3:20 instructions 121- 27:7, 27:10 intended 11) - 24:3 intent [21- 26:1, 29:23 intention [1] - 27:17 interested 111- 15:12 invoiced 11l - 20:22 invoices 1211- 16:6, 16:7, 16:11, 16:14, 17:2, 17:10,17:14, 18:14, 18:16, 19:4, 20:22, 21:2, 22:20, 22:22, 23:1, 23:2, 23:5, 23:9, 23:16, 23:19 involved (11- 22:4 issue 121 - 23:16, 23:19 issued Ill - 21:10 issues [21- 27:5, 29:25 item [31- 18:19, 19:6, 19:11 items 1131- 15:13, 15:18, 15:21, 15:25, 16:2, 16:5, 17:7, 17:9, 19:15, 21:24, 23:15, 27:8, 27:11 Items (11- 15:15 itself [3) - 17:19, 18:24, 19:1 J JEAN 11) - 1:8 Jean 131- 31:3, 31:11, 31:23 June [21- 7:3, 14:25 JURY 111- 1:4 K K&I 132) - 7:6, 11:20, 13:8, 13:10, 13:14, 14:10, 14:12, 15:19, 15:22, 16:3, 17:8, 18:10, 20:1, 20:6, 20:13, 21:21, 21:23, 22:6, 22:8, 22:10, 22:22, 23:7, 23:10, 23:16, 26:5, 26:16, 27:7, 27:10, 27:19, 28:16, 28:20, 29:2 kind [11- 29:1 knowledge (11- 12:24 known 12) - 7:18, 11:20 Konrad [31- 14:15, 15:4, 20:18 L last [31- 8:19, 1219, 20:18 LAW (il - 1:3 least [1) - 7:1 leave (11- 28:1 letter [7) - 13:22, 14:2, 14:5, 26:6, 27:19, 27:23, 27:25 letters (11- 29:19 Lien 11l - 16:24 lien [311- 3:19, 4:10, 6:8, 6:9, 6:14, 6:23, 8:10, 8:19, 9:2, 11:25, 12:2, 12:25, 13:3, 16:15,16:22, 16:23, 17:4, 17:17, 17:20, 17:25, 22:18, 23:23, 24:3, 26:1, 27:2, 27:18, 28:12, 28:15, 28:25, 29:24, 30:4 liens (21- 8:18, 9:1 lift [21- 11:11, 11:15 likely [11- 12:14 linelll - 10:22 listed [21 - 11:3, 23:13 listing (1l - 16:6 LLP [21- 1:10, 1:14 located 11l - 7:19 look 12) - 12:3, 25:24 looking 111- 16:25 Looking 111 - 12:8 M mail [31- 24:19, 24:21, 24:23 March Ill - 31:25 mark p I - 6:13 material (1) - 19:24 materials (1ol - 18:21, 19:3, 19:5, 19:7, 19:12, 19:22, 27:6, 27:7 matter [21- 6:18, 23:22 McFadden [11- 9:16 mean [21- 7:13, 26:6 mechanics 12] - 8:1, 10:16 mechanics' [81- 3:19, 4:10, 11:25, 12:2, 26:1, 27:2, 28:25, 29:24 Mechanics' [11- 16:24 meet 11) - 14:17 meeting (51- 14:19, 15:3, 15:7, 20:3, 20:11 mentioned 111- 27:16 met 121- 3:17,14:15 method (11- 21:14 METTE11)- 1:18 MICHAEL [11- 1:18 Michael 111- 3:17 Middleton [11- 7:19 might (21- 18:12, 27:19 mine [11- 4:6 MLD [1) - 1:2 mobilization (11- 11:4 Mobilization 111- 11:5 mood 111- 28:12 MR [481- 2:5, 2:6, DAVIS REPORTING PRONE (717)503-6568 FAX (717)566-5599 34 • • r? 3:11, 6:16, 6:17, 6:18, 6:22, 7:12, 7:15, 7:16, 9:5, 9:9, 9:25,10:4, 16:16, 16:19, 17:18, 17:21, 17:24, 22:25, 23:3, 23:4, 23:6, 24:11, 24:17, 24:21, 24:22, 24:23, 24:25, 25:1, 25:6, 25:11, 25:12, 25:15, 25:16, 25:20, 25:22, 26:22, 26:23, 26:25, 27:12, 27:13, 27:15, 28:1, 28:3, 28:10, 30:8, 30:9 N NAME Ill - 2:3 name [41- 3:12, 3:17, 14:14, 20:18 named 111- 4:11 near(1l - 14:19 need 12) - 6:13, 6:19 negotiate (11- 29:4 negotiated [1) - 29:9 never Ill - 18:23 NO [11- 1:2 None [11- 21:2 normally Ill - 21:7 NORTH [31- 1:11, 1:15,1:19 North Ill - 7:19 Notary (31- 31:3, 31:11, 31:24 NOTARY Ill - 1:8 Note (1l - 17:18 notes [1) - 31:17 nothing 121- 28:6 notice 1141- 24:1, 24:7, 24:12,24:18, 25:1, 25:3.25:25, 27:17, 28:24, 29:1, 29:13,29:23, 30:2, 30:5 notified (11- 24:5 November 13) - 15:2, 20:4, 31:20 O oaths 111- 31:4 object Ill - 7:12 objection [1l - 17:18 Objection [41- 9:5, 9:25, 16:16, 22:25 objections [11- 3:5 obviously (1l - 8:7 occasion 111- 6:2 occupation [11- 5:20 occur (1l - 20:9 OCTOBER I11- 1:9 OF [4l - 1:1, 1:6, 31:1, 31:2 office [11- 26:11 officers [11- 4:21 One (1l - 27:13 one 171- 6:16, 13:16, 13:17, 14:22, 24:9, 26:3, 26:23 ones (21- 16:1, 22:23 open Ill - 28:2 opposed (11- 20:14 oral 151- 14:8, 14:9, 14:12, 15:6, 20:2 order [21- 21:10, 21:13 original 14) - 8:2, 20:24, 21:3 originally (21- 21:17, 22:4 overall (11- 7:24 owed Ill - 29:8 owing 111- 18:2 owned [1l - 6:24 owner [51- 5:20, 9:3, 21:6, 21:14, 30:3 P P.M 111- 1:9 p.m Ill-30:11 PA Ill - 3:16 pads [51- 15:13, 16:2, 17:7, 21:23, 21:25 page [51- 8:19, 12:3, 12:6,12:8,12:19 paid (11- 23:2 paper [11 - 28:6 papers [11- 28:9 paragraph (71- 13:3, 13:4,17:25,18:19, 22:18, 23:14, 27:2 Parker [191- 3:18, 6:24, 7:9, 7:18,8:14, 9:3,10:11, 18:11, 20:15, 20:25, 22:4, 23:20, 24:2, 24:8, 27:23, 28:17, 28:20, 29:2,30:3 PARKER Ill - 1:3 part [111- 7:5, 7:6, 8:17,11:3,11:10, 20:3,21:25, 22:3, 22:6, 22:11, 23:7 parties I11- 3:3 paving Ill - 10:24 Pennsylvania [31- 5:4, 7:20, 31:5 PENNSYLVANIA (51- 1:1,1:11,1:15,1:19, 31:1 perform [21- 5:24, 6:2 permitted (11- 9:2 perspective 111- 7:2 PETER [i1- 1:14 Peter [2l - 6:16, 24:14 pipe (21- 18:20, 18:24 PLACE [1l - 1:10 Plaintiff [11- 1:1 PLAINTIFF (11- 1:17 PLEAS [1) - 1:1 point 141- 28:11, 28:25,29:6, 29:17 position Ill - 4:15 President 121- 4:17, 8:23 president [iI - 5:20 pretty [11- 29:7 previously [21- 3:17, 28:19 price [31- 11:3, 18:10, 21:15 primary (11- 5:19 procedure Ill - 21:20 proceedings 11l - 31:15 produce [21- 24:14, 26:13 project 12o1- 5:24, 6:23,71, 7:8, 7:14, 7:17,7:21, 7:23, 7:24, 8:14,11:18, 11:23,13:7,13:12, 18:22,18:23, 20:6, 28:8, 29:20, 30:4 projects I11- 6:3 pronounce [1l - 20:18 property [1l - 30:5 proposal (1l - 21:12 proposals Ill - 21:9 provide 131- 13:17, 24:6, 29:1 provided (31- 24:2, 24:7, 28:2 PSI [1l - 28:20 PUBLIC (11- 1:8 Public 131- 31:3, 31:12,31:24 pump [31- 11:8, 11:9, 11:12 Pumping (1I - 28:21 purchased Ill - 18:22 pursuant (21- 7:2, 17:4 pursuing Ill - 17:17 Put [31- 10:16, 22:8, 30:4 Q questions 19) - 3:22, 3:25,6:20, 24:16, 25:9,25:14,25:17, 31:10 reading p) - 3:3 reason [41- 3:24, 4:4, 28:6, 29:12 record [51- 3:13, 6:18, 24:11, 25:7, 25:24 reduced I11- 31:12 REED (291- 1:18, 2:5, 3:11, 6:16,6:18, 6:22, 7:15, 7:16, 9:9, 10:4, 16:19, 17:21, 17:24, 23:3, 23:6, 24:11, 24:21, 24:23, 25:1, 25:6, 25:12, 25:16, 25:22, 26:22, 27:13, 27:15, 28:1, 28:10, 30:8 Reed [21- 3:17, 27:1 refer (51- 7:23, 18:21, 19:12, 19:15, 19:23 reference (1l - 11:7 referred [4l - 4:10, 11:13, 14:20, 20:4 referring 13) - 7:17, 7:24, 16:7 refers l1l - 19:6 reflect Ill - 23:23 reflected (1l - 17:9 refused Ill - 13:20 regard [21- 11:9, 23:20 Regarding 111 - 27:5 regarding [11 - 27:7 related [21- 15:15, 16:1 relates 111- 6:23 removal 131- 19:11, 19:20, 27:6 remove [11- 27:11 removed (1l - 19:16 repeat [11- 4:6 rephrase (11- 4:7 REPORTER 111- 1:8 Reporter 141- 31:3, 31:11, 31:14, 31:23 reporter ill - 31:11 represent (3) - 3:18, 22:19, 23:11 represents (1I - 19:19 reserve [1) - 25:13 reserved (11- 3:6 respect [3l - 20:1, 23:16, 30:2 respective 111- 3:3 resume Ill - 25:8 review (21.- 6:12, 18:4 ridiculous [1l - 29:16 Road [11- 3:16 role Ill - 11:22 SACKS [21--- 1:10, 1:14 sanitary 13) - 10:18, 11:10,11:15 scope (61- 10:9, 11:9, 20:24, 21:3, 21:6, 21:16 seal 111- 31:20 sealing (i 1- 3:4 second 111- 12:1 see [51- 8:19, 12:15, 12:19, 18:2, 25:18 seem [11- 29:12 send [1l - 30:5 sent 131- 27:25, 29:13, 29:19 sentence 111- 13:4 series [i ] - 3:21 service I11 - 24:24 Service [1l - 12:18 sewer 14] - 10:18, 10:20,11:10, 11:16 shareholder Ill - 4:18 show 111-6:11 sign (51- 13:16, 13:18, 13:20, 28:8, 29:21 signature (21- 8:22, 12:9 signed [41- 7:3, 9:12, 9:21, 10:7 signing 121- 3:3, 8:25 site (51- 19:7, 19:8, 19:16, 21:24, 22:5 small [11- 23:13 SMIGEL [21- 1:10, 1:14 sole (11- 4:18 someone [11- 7:8 sometimes (11- 5:24 Somewhere Ill - 15:1 sorry [11- 17:5 speaks [2] - 17:19, 18:24 specific [11- 15:9 Springs 1191- 3:18, 6:24, 7:10, 7:18, 8:14, 9:3,10:11, 18:11, 20:15, 20:25, 22:5, 23:20, 24:2, 24:8, 27:23, 28:17, 28:20, 29:2, 30:3 SPRINGS Ill - 1:4 SS (1l - 31:1 stages Ill - 20:11 started (31- 7:8, 13:11, 15:11 state [21- 3:12, 13:4 STATE (1] - 31:1 EAN DAVIS REPORTING PHONE (717)503-6568 FAX (717)566-5599 35 • • E statement 111- 29:17 station 151- 11:8, 11:9,11:11, 11:12, 11:15 stenographer [1l - 3:23 stenographically [il - 31:10 stipulated 11l - 3:2 stipulation 121- 8:18, 9:1 STIPULATION 11l - 3:1 storage 111- 19:22 storing [11- 19:24 storm [11- 10:20 STREET 131-1:11, 1:15,119 subcontract 1121- 13:14, 14:9, 14:13, 15:6,15:10, 15:19, 15:22, 16:3,17:8, 20:1, 20:2, 21:20 subcontractor [71- 6:3, 6:6, 8:6, 13:5, 13:6, 13:9,13:23 subdivision 111- 7:18 subs [11 - 9:19 subscribed [1[ - 31:20 sued 121- 29:6, 29:17 supervision 121- 11:4, 20:6 supplement 117 - 25:7 supplied [iI - 18:23 sworn [21- 3:9, 31:9 T tabulated l1I - 22:17 tabulation [21-18:1, 18:19 TAKEN ill - 1:7 tern [11- 7:12 testified [1l - 3:9 testimony 121- 31:7, 31:19 THE [91- 1:1, 1:3, 9:7, 10:2, 16:18, 17:23, 23:5, 25:5, 28:5 therefore 111- 16:14 THOMAS (41- 1:6, 2:4, 3:8, 31:7 Thomas ill - 3:14, 8:22 throughout [11- 29:20 today [81- 3:22, 4:5, 7:23, 11:8, 14:3, 24:6, 24:10, 26:8 took [1l - 20:6 total [51- 22:17, 22:19, 23:10, 23:11 totaled [i [ - 22:21 Township [11- 7:19 transcribed 111- 3:23 transcript 11l - 31:18 trial [21- 3:6, 31:6 TRIAL [1l - 1:4 truthfully [1l - 4:1 trying [il - 29:4 type 111- 5:6 typewriting [il - 31:13 U under (61 - 8:1, 9:18, 10:9, 11:15, 23:13, 31:13 understood [31- 8:25, 13:23, 16:21 unpaid 187 - 16:12, 17:3, 17:14, 18:10, 18:14, 18:16, 23:1, 23:9 Unpaid [21- 23:3, 23:5 unused [3l - 18:20, 18:24, 27:6 up [81- 12:1, 13:13, 16:14, 18:18, 19:25, 21:16, 22:21, 27:13 utilities [il - 22:5 V V-a-r-i-s-h [11- 3:14 various [3l - 5:14, 15:13, 21:24 Various 111- 20:11 Varish 1141- 3:12, 3:14, 4:11, 4:15, 4:18, 5:1, 5:6, 5:20, 6:9, 8:23, 13:5, 13:6, 25:23, 27:1 VARISH 157 - 1:1, 1:6, 2:4, 3:8, 31:7 verbally [i[ - 13:11 verification 121- 12:2, 12:8 verified 121- 16:23, 18:4 verify [31- 13:25, 29:21, 30:7 W waitiil - 30:8 waived [i[ - 3:4 walked 111- 27:1 water [2l - 10:22, 18:20 whereof l1l - 31:19 whole [1l - 29:20 WITNESS [el - 2:2, 9:7, 10:2, 16:18, 17:23, 23:5, 25:5, 28:5 witness 121- 3:8, 31:9 WOODSIDE [1[ - 1:18 word [11 - 7:23 words 121- 20:7, 23:9 write Iil - 13:22 writing [1l - 29:14 written (el - 13:14, 24:1, 24:7, 25:3, 25:25,29:1, 29:13, 30:5 Y year (1l - 14:23 years 11) - 5:16 yourself [11- 13:23 Z Ziggy [21- 14:15, 15:3 EAN DAVIS REPORTING PHONE (717)503-6568 FAX (717)566-5599 ;r- ?? ,? ?=:; x ^ ? ? ?, ... ' L.? = _ ? ?'_? ? '^y,? ' ?'] t? £'•? ? .?..1 ;_. ?..? C ?? ORIGINAL VARISH CONSTRUCTION,INC., Plaintiff VS THE COMMONS AT PARKER SPRINGS, INC., Defendant DEPOSITION OF: TAKEN BY COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-7500 MLD CIVIL ACTION - LAW KONRAD ZIEJA Defendant BEFORE: HEATHER L. ARTZ, RMR, CRR REPORTER-NOTARY DATE: October 10, 2008, 10:00 A.M. PLACE: METTE EVANS & WOODSIDE 3401 North Front Street Harrisburg, Pennsylvania APPEARANCES: METTE EVANS & WOODSIDE BY: MICHAEL D. REED, ESQUIRE FOR - PLAINTIFF SMIGEL, ANDERSON & SACKS, LLP BY: PETER M. GOOD, ESQUIRE FOR - DEFENDANT Jean Davis Reporting (ap 140 Peregrine Lane • Hummelstown, PA 17036 (717) 503-6568 • Fax (717) 566-5599 2 1 1 1 1 14 15 16 17 18 19 20 21 22 23 24 25 1 I N D E X 2 Fj3y EXAMINATION 3 4 eed 3, 48 5 By Mr. Good 1 3, 52 6 7 8 9 0 1 2 3 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATIONS It is hereby stipulated by and between the respective parties that signing, sealing, and certification are waived; and that all objections, except as to the form of the question, are reserved until the time of trial. KONRAD ZIEJA, called as a witness, being duly sworn, was examined and testified, as follows: EXAMINATION BY MR. REED: Q Mr. Zieja, is that how it's pronounced? A Yes. Q Would you state your address for the record, please? A My business address or my personal address? Q Business is fine? A 801 East Fairmont Street, Allentown, Pennsylvania, 18109. Q Okay. And what type of business are you involved in? A Contracting. Q Do you own a contracting company? A Yes. Q And what's the name of that company? 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A K&I Contractors. Q How long have you -- I'm sorry? A Go ahead. Q How long have you owned that company? A From '93. Q In that company what type of work do you do? A Remodelling, construction management, exterior renovations, commercial flat roofing. Q Okay. Have you ever built townhouses? A Yes. Q Are you familiar with the project that was known as the Commons at Parker Springs in North Middleton Township, Cumberland County? A Yes. Q If during this deposition I say the project, I'm referring to that project. What was K&I's role on that project? A K&I's role on this project was to manage the proj ect . Q Okay. And were you also responsible for building the townhouses? A I was responsible to manage the activity. MR. GOOD: I'm sorry. Excuse me. I didn't hear you. You said manage what? THE WITNESS: Manage the activity. 5 i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GOOD: Okay. Thank you. BY MR. REED: Q And who did you contract with, if anyone, for those duties? A K&I had agreed to a flat fee to super -- to supervise the project. Q And who had agreed to pay you that flat fee to supervise the project? A Owner of the development. Q And was that Mr. Brill? A Yes. Q Harry Brill? A Harry Brill. Q Had you worked with Mr. Brill previously? A Yes. Q And Mr. Brill testified previously in this case that you -- what he had with you was an oral agreement, not a written agreement; is that correct? A Yes. Q What do you recall about the terms of that agreement? What was your role to be? A My role to be was to manage the activity -- Q Okay. A -- on the construction of the town homes. Q And other than the flat fee that your 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 company was paid -- A Yes. Q -- the other contractors on the site, who was to pay them? A Harry Brill, the Commons at Parker Springs technically. Q Okay. The Commons at Parker Springs which was a corporation? A Exactly. Q Owned by Mr. Brill? A Correct. Q And did there come a time during the project when K&I made some payments on behalf of the Commons at Parker Springs? A Yes. Q And what was the reason for that arrangement? A Harry Brill was in Florida and he had problems with his health and our contractors were asking for payment. So basically we front the money. Q K&I fronted the money? A Yes. Q And then was K&I repaid by Mr. Brill? A Yes. Q Was K&I paid any percentage markup on the 7 9 E 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bills that they fronted for -- for other contractors? A There was -- there was no percentage charged. Q No percentage was charged? A No. Q If you were to hire subcontractors on a project, would that be something you would normally do is add a percentage for markup? A If I were to hire contractors, I would have to attach percentage. Q Did you hire any subcontractors on the Commons at Parker Springs project? A No. Q I'm going to show you a document that was marked at Mr. Brill's deposition as Brill Exhibit 4, a copy of it. And these appear to be a series of invoices from Varish Construction, Inc. The first one is to Harry Brill and the remainder of this package are to K&I. Do you see that? A Yes. Q Who was Varish Construction and what did they have to do with this project? A Varish Construction was excavating company hired by Harry Brill, the Commons at Parker Springs corporation. 8 1 Q What were they doing on the project? 2 A Infrastructure, road, sewer. 3 Q Okay. In that capacity, did they also at 4 times do pads and footers as shown on Invoices 3 and 4 5 and I guess partially Invoice 5 in this package? 6 A The footers and pads, I think those invoices 7 are incorrect. 8 Q In what respect are they incorrect? 9 A On behalf of Harry Brill we approved a 10 different company to do -- to work on footers. 11 Q Who was the company that you approved to 12 work on the footers? 13 A That was -- the company's name was TNT. 14 Q TNT? 15 A Yes. 16 Q And did your company enter into any kind of 17 agreement or was it a proposal from TNT? 18 A On behalf of Harry Brill we -- I agreed 19 to -- well, Harry Brill hired TNT to do the job. 20 Q Okay. Did you ever see any written proposal 21 or contract from TNT? 22 A Yes. 23 Q Is that something that you have with you 24 today? 25 A I don't have the copy of it today. 9 1 Q Okay. Is that something you might be able 2 to produce in the future? 3 A Yes. I Q Did K&I -- these invoices are marked paid. Did K&I pay these invoices, to the best of your knowledge? F C J 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q And why did K&I pay -- for example, the first invoice that was to Harry Brill on this package, this invoice is directed to Harry Brill. Why would K&I have made payment on that? A Varish Construction, the way they invoiced the job was incorrect. But we didn't want to delay the construction schedule. We paid the invoices as they were presented. Q As they were submitted. And was this during the time when Mr. Brill was not available because of his health problems? A Yes. Q And again, you were paid back by Mr. Brill or Commons at Parker Springs -- A Yes. Q -- for those payments? And no percentage markup was applied? A No. 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q I'm going to show you a copy of the mechanic's lien claim with exhibits that was filed by the -- by Varish Construction in this case. And refer you to Exhibit B -- MR. GOOD: Could I get a copy of that? I didn't bring -- BY MR. REED: Q Sure. I refer you, Mr. Zieja, to Exhibit B. And it was represented by Mr. Varish during his deposition that these are the unpaid invoices which he submitted some to K&I and the last two in the package to Harry Brill with regard to extra work that he contends he performed at the project. And can you tell me why K&I Construction did not pay these invoices? A They supposed to be invoice to the Commons at Parker Spring directly. Q And you said earlier that you didn't object to that problem with other invoices because you wanted to keep the project rolling. A Yes. Q These invoices are a little later in the project, starting in June and going through the last one in September -- or I'm sorry, October of 107. Had something changed that made you decide not to pay 11 1 these invoices as opposed to the other ones? 2 A The Commons at Parker Spring, Harry Brill, 3 from what I understand, and I -- I know for fact there 4 was no change order, anything submitted prior to doing 5 this extra work. 6 Q And was this beyond the period of time when 7 Mr. Brill was unavailable? These invoices were during 8 the time when Mr. Brill was available or not? Do you 9 know? 10 A I don't remember exactly date. 11 Q At some point in the summer of 2007 did 12 Mr. Brill come back from Florida? 13 A Yes. 14 Q And would it, in your view, would it have 15 been appropriate for these bills to have been 16 submitted directly to Commons at Parker Springs rather 17 than K&I? 18 A Yes. 19 Q Were you in charge of approving change 20 orders from Varish if they had been submitted? 21 A My job was to present those to Harry Brill, 22 send them in the mail or faxed over. 23 Q So it would be Mr. Brill's final. decision 24 whether or not to approve a change order? ` 25 A Yes. 12 9 E 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q I'd like you to look at -- there's a tabulation of amounts claimed to be due on Page 2, Paragraph 5 of the claim, not exhibits there but the claim itself. I'll represent to you that the unpaid invoices that we just reviewed that are Exhibit B, that there -- that they're summarized in this tabulation at Paragraph B, balance on the unpaid invoices. With respect to the other items, the balance on the unpaid contract prices of 149,000, that's Subparagraph A to Paragraph 5, do you know what that refers to? A Okay. Like -- Q Balance on the unpaid contract price, do you see that? A Yes. Q Do you know what that refers to? A From my understanding that refers to contract between the Commons at Parker Spring, Incorporated, and Varish. Q And with respect to Items C, D, and E, cost of unused water pipe and other materials, cost for removal of materials, and cost for storage of materials, were those ever things that K&I subcontracted with Varish for? 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No, no. Q Did K&I subcontract with Varish for anything on this project? A No. MR. REED: Thank you. I don't have any further questions. BY MR. GOOD: Q Mr. Zieja? A Yes. Q Am I saying that correctly? Close enough? A Yes. Q My name is Peter Good. I represent Varish Construction, Inc. And I want -- I'm here to ask you some questions pursuant to the deposition that Mr. Reed just asked you questions about. Do you have counsel representing you today? A No. Q Now, Mr. Reed, is he your counsel for the other matter that Varish filed against you, the matter -- it's a complaint that was filed against the Commons at Parker Springs; K&I Contractors, Inc.; and PSI Pumping Solutions. It's docketed at 07-6274 in Cumberland County Court of Common Pleas. A We don't have -- we don't have -- I guess you not our lawyer on K&I. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q That's my question. Do you know? Is Mr. Reed your lawyer -- A No. Q -- on that matter? A No. Q Is anyone representing you in that matter as far as you're concerned? A No. Q So how have you been responding to the lawsuit that's been filed against you in that matter? A I guess the lawsuit was entered against three different companies -- Q Okay. A -- at once -- Q Right. A -- on one sheet of paper. We sorting things out and I wanted to see where -- where we go from here, and I have my own lawyer. Q Who is your lawyer? A I -- I'm not sure who I'm going to use. I have three lawyers actually. Q Now, you said that you -- are you the president of K&I Construction? A Yes. Q Is K&I Construction incorporated? 15 9 G 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q Incorporated in Pennsylvania? A Yes. Q With the address of East Fairmont in Allentown? A Yes. Q And it's a corporation? A Yes. Q Are there any other people besides yourself who are owners of the company? A Me. Q So you are 100 percent owner of the company? A My wife, she owns -- she owns half of the company. Q What's her name? A I-L-O-N-A, Ilona. Q Is there a board of directors? A It's regular corporation. Q Is that a yes? A Yes. Q And who are the members of the boards of directors? A Me and my wife. Q Are there corporate officers? A Yes. 16 c 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Q Who are the corporate officers? 2 A My lawyer has all the information. 3 Q And who -- which lawyer is that? 4 A George Konups. Q Please spell that. A George. Q Okay. A K-O-N-U-P-S. Q Is that in Allentown? A Yes. It's actually Bethlehem. Q Bethlehem? A Bethlehem, Pennsylvania. Q Are you the president of the corporation? A Yes. Q Do you know who the vice president is? Is that you r wife? A Um-hum. Q Yes? A Yes. Q And do you know is there a treasurer or secretary? A You're going to have everything from my lawyer, all the information. Q Okay. Does Harry Brill have any ownership in the company? 17 1 A What do you mean? 2 Q Does Harry Brill have any ownership of K&I 3 Contracting? 4 A No. 5 Q Does Harry Brill -- what is the relationship 6 between your company and Harry Brill personally? 7 A Personally there's -- I know I know Harry 8 Brill for ten years as you know, business to business. 9 Q What types of work have you done in 10 conjunction with Harry Brill? 11 A Harry Brill used to own B&K Equity, a 12 different company. 13 Q Okay. What type of work did you do for B&K 14 Equity? 15 A Maintenance. 16 Q Could you please be more specific in what do 17 you mean by maintenance? 18 A Maintenance on the apartment complexes, just 19 upkeep on the buildings. 20 Q Did you do any construction projects for B&K 21 Equity? 22 A No. 23 Q Have you done, prior to this project, which 24 Mr. Reed defined as the Commons at Parker Springs, had 25 your -- you or your company, K&I Construction, done 18 S 1 any construction work for Harry Brill? 2 A Not building but remodelling, yes. 3 Q That was in Allentown? 4 A That was in Allentown, Easton, Emmaus. 5 Q And when you say remodeling, what does that 6 entail? 7 A Replacing of roofs on apartment buildings, 8 repairs to soffits and facia, repairs on gutters and 9 downspouts, underground drainage system. 10 4 Had you ever done any new construction for 11 Harry Brill prior to this project? 12 A No. 13 Q How did you come to be involved in this 14 project? 15 A I was offer -- I was asked by Harry Brill to 16 manage the project. 17 Q And what do you mean by manage the project? 18 Were you its construction manager? 19 A Yes. 20 Q Did you have a contract for that? 21 A We had verbal agreement. 22 Q What were the terms of your verbal 23 agreement? 24 A That I will receive payment per unit to 25 manage the project. 19 1 Q What were your responsibilities in managing 2 the project? 3 A To supervise the activity. 4 Q Anything else? 5 A No. 6 Q What was your payment per unit? 7 A You need to know the amount? 8 Q Yes? 9 A $7500. 10 Q How many units were to be constructed? 11 A We had agreement on five-unit building. 12 Q A five-unit building? 13 A Yes. 14 Q Okay. 15 A We got paid for five unit building. 16 Q What was the scope of the project 17 originally? How many units were there to be? 18 A The entire project, 30 unit. 19 Q But you've only been paid on five units so 20 far? 21 A Yes. 22 Q Is that correct? 23 A That's all we did, yeah. 24 Q Now, when you say, Mr. Zieja, that you were 25 to supervise the activity, can you be specific as to 20 1 what were your duties in that respect? Whom did you 2 supervise? What did you supervise? What was your 3 scope of your responsibilities? 4 MR. REED: Object to the form. You can 5 answer. 6 THE WITNESS: My responsibilities was to 7 make sure that the construction goes smoothly and the 8 quality of the work is in line with industry 9 standards. 10 BY MR. GOOD: 11 Q You testified that you Y previously had done 12 some construction management in other projects, 13 correct? 14 A Yes. 15 Q As far as staffing, do you have someone on 16 the site full time? 17 A Yes. 18 Q Who was that? 19 A His name is Zi ggy Gorski. 20 Q Okay. And what was his title? 21 A He was the construction manager. 22 Q And he reported to you? 23 A Me and Harry Brill, yeah. 24 Q How often were you on the project? 25 A Once a week. 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Now, specifically related to Varish Construction, did you explain your function to them as construction manager? A Can you repeat that question? Q Yes. I'm referring to Varish Construction. Did you inform anyone at Varish Construction as to what your role was to be on this project? When I say you I mean your company. A Yes. Q What did you tell Varish that your role was? A That we're supervising the project for the Commons at Parker Spring, Inc., Harry Brill. Q Did you tell Varish anything about who would be responsible for signing change orders? A The contract was between the Commons at Parker Spring and Harry Brill and Varish. Q Okay. My question was did you talk -- strike that. Did you have the responsibility to approve change orders? A On behalf of Harry Brill. Q So that would be a yes? A Yes. Q Did you have the responsibility to make payment to Varish Construction? A No. 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q If there was a question that Varish Construction had at the project, any question, who were they to ask for clarification for instruction? A The project manager. Q That would be Ziggy? A Yes. Q And did you give Ziggy the authority to give Varish answers to his questions? A No. All the questions have to be cleared by Harry Brill. Q Now, I understand for a period of maybe five or six months Mr. Brill was not available; is that correct? A He was not available at the job site but he was available on the phone. Q Well, he was sick, wasn't he? A But he was able to talk. Q So my question is when there was a -- any question on site -- A Yes. Q -- was Varish instructed to talk to Ziggy for -- to ask those questions? A Yes. Q And did you give Ziggy the authority to provide answers to questions that Varish might have? 23 i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. REED: Objection, asked and answered. BY MR. GOOD: Q You can answer. A He had to clear with the owner. Q Whose job was it to review the invoices on the project that Varish submitted to you? I say you again, I mean K&I. A Yes. Harry Brill. Q Okay. Now, Mr. Zieja, why was Varish giving invoices to you, meaning titled K&I Construction? A He was confused probably. Q Did you tell him about the confusion, that he was doing something incorrectly? A His contract was with the Commons at Parker Spring and he's supposed to make those invoices to the Commons at Parker Spring. Q Did you tell him not to invoice you directly? A Yes. Q Did you tell them -- did you confirm that in writing? A I would have to look into that. Q Okay. Do you have a file on this project? A Yes. Q And that file, do you have payment records 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as well? A I have everything. Q Okay. Do you want me to communicate with you directly or with your -- or with an attorney in requesting that file from you? A With my attorney. Q And that was Mr. -- Mr. Konups? A Konups. Q Sorry. Is that who I should contact? A I'm not sure yet. I got to make that decision. Q Okay. Well, will you let me know by the end of the day today -- or how about Monday? A Yes. Q Okay. I'll give you a card, you can let me know. But for the record, I'm going to be requesting either of you directly or from your attorney your project file on this project. Mr. Reed showed you what was marked as Brill No. 4. Do you have that in front of you still? This is the invoices. MR. REED: I believe that's in front of me. Let me give him. THE WITNESS: Okay. BY MR. GOOD: 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Now, besides invoice -- besides Page 1 of this document, you'll agree with me that the other pages all have VCI titled invoices billed to K&I Contractors, Inc.? A Yes. MR. GOOD: Off the record. (A discussion was held off the record.) BY MR. GOOD: Q I'm going to show you what's marked as Brill No. 3. This appears to be a check stub from K&I Contractors. Do you recognize this document? A Yes. Q Is that -- did I identify it correctly, Mr. Zieja, is this a check stub? A Yes. Q And it's on PNC Bank? A Yes. Q What branch is that bank, do you know? A What do you mean? Q What PNC Bank branch are these checks written from? A Allentown. Q Allentown. Do you have an address? A No. Q Can you give me a street? 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Broadway. Q Now, on this invoice, on this check stub, you agree that these five -- these six invoices were paid? A Yes. Q Including Page 1 of Brill No. 4, which was the bill to Harry Brill for $39,424, Page 1? A Yes. Q As I understand your testimony, Mr. Zieja, you say that Parker Springs reimbursed you for that amount? A Yes. Q And in your project file does it have those records of that reimbursement? A Yes. Q And you stated that you made this payment, I think you said, as a convenience or as -- I don't want to put words in your mouth. Tell me again why you made -- why K&I made payment on behalf of Parker Springs on this invoice. A Harry Brill was in Florida. He had health problems. And Varish Construction asked us for payment. And not to delay the project, we fronted the money. Q Okay. Now, besides Page 1 of Brill No. 4, 27 J L G E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L the remainder of the invoices in this exhibit, Invoice '. No. 3, No. 4, No. 5, and No. 6, those are all invoiced to K&I Contractors, correct? A Yes. Q And you paid those invoices; isn't that correct? A Yes. Q Is it your testimony that Mr. Varish was incorrect in invoicing K&I for this work? A Yes. Q And what's the basis of your belief that this was incorrect? A My basis, based on the contract between Varish Construction and the Commons at Parker Spring, they engage in contract agreement for this work. Q So this -- was the work as set forth in the invoices in this document, was it -- is it your testimony that this work was contract work under the Parker Springs contract? A I didn't personally read the contract. Let me see. Q Again, besides not counting Page 1 of the document, but the remaining pages. A Okay. I would have to check on that. Q Okay. Now, Mr. Reed also showed you in the 28 is • 0 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 complaint, the claim, another series of invoices. And I think those were marked as Brill No. 5, but that's -- it's the same documents that are Exhibit B to that. Is that marked from last exhibit? MR. REED: It wasn't marked as an exhibit. It's Exhibit B to the complaint that's of record here. BY MR. GOOD: Q So looking at Exhibit B to the complaint of record, you have not paid those invoices , have you? A (Pause.) I would have to look into that. I don't remember exactly which invoices we re paid. Q Okay. I'm going to represent to you that Mr. Varish testified that these invoices as Exhibit B have not been paid. A Okay. Q Why have they not been paid by K&I? A We're not responsible. Q Do you know, Mr. Brill, if the work as set forth on these invoices was completed? A Can you repeat the question? Q I think I called you Mr. Brill. I apologi ze. I'll try again. Mr. Zieja, the work that's listed on the invoices attached a s Exhibit B, do you know if it was completed? A No, it was not completed. 29 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q None of it? A Some of it. Q Some of it was; some of it wasn't? A (Nodded head up and down.) Q In your project file do you have -- MR. REED: I'm sorry. You have to say yes. THE WITNESS: Y es. MR. REED: So she can pick it up. BY MR. GOOD: Q In your project file, would it have the details as to what parts of the work were or were not completed as set forth on these invoices? A Yes. Q Is it your testimony that some of the work was completed as set forth -- A Yes. Q -- in these invoices? Yes? A Yes, it is. Q And as I understand it, it was your responsibility, your company's responsibility to review these invoices? A Harry Brill as the owner of the company. Q Asked you to review them? A That was his responsibility. Q What was your responsibility? 30 0 1 2 3 4 5 6 7 8 9 10 I LL- -] 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A To, like I said before, supervise the project. Q Did that include the reviewing of invoices? A No. To make sure that the project is completely finally finished. Q The first invoice is Invoice No. 7 in Exhibit B and it's dated June 26, 2007. A Yes. Q At some point did you receive that invoice from Varish Construction? A Yes. Q What did you do with it? A I forwarded it to Harry Brill. Q Did you make any annotations on the invoice as indicating what work was or was not completed? A As I remember, we set up a meeting between Harry Brill and Varish. Q And you were present as well? A Yes. Q Was that meeting on or about June 30th in Allentown? A Yeah. Q And what was the result of that meeting? A Result of that meeting, we were not satisfied -- Harry Brill was not satisfied with the 31 0 1 2 3 4 5 6 7 r? L? 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 performance of Varish. And from what I remember, he questioned the work, additional work that was done. Q Anything else? A And questioned the invoices presented. Q Now, as I understand that, Mr. Zieja, you were the representative of Parker Springs on site, you were the construction manager, correct? A Yes, construction manager. Q What did you say regarding -- at that meeting, what did you say regarding these invoices, if anything? A The job was not a hundred percent. We are behind schedule. The additional costs that we're -- arrive because of delays. Q Did you question Varish's performance -- A Yes. Q -- at the meeting? A Yes. Q Did you put that in writing? A No. Q Did you understand, Mr. Zieja, how the- -- how payment was being made to Varish throughout the project? And what I mean by that is were you aware of the bond system in place and the release of bond money to allow for payment to contractors? 32 • 1 2 3 A I don't have that information. Q My question is were you aware of that process? 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I was aware of the process. Q And did you understand that certain payments were submitted to the township for release of the bond which would then be paid to Mr. Brill and then on to the contractors? A I couldn't have that specific information. Q Right. But were you aware of that process? A It's a standard process in construction, new construction. Q But you had not had much experience in new construction previous to this, had you? A Yes, I did. Q I thought you said you did mostly -- mostly renovations? A No. I built -- for Harry Brill. Q Okay. A I build other houses as well. Q Do you have any ownership in the Commons at Parker Springs? A No. Q So although some of the work by your own testimony was done on these invoices attached to 33 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exhibit B, as far as you know no payment was made; isn't that correct? A Yes. Q I'm going to show you what's been marked as Brill Exhibit il. This is a one-page document called Stipulati on Against Liens. Are you familiar with this document, Mr. Zieja? A Yes. Q And is that your signature on the bottom? A Yes. Q Along with Harry Brill's? A Yes. Q Why did you enter into this agreement with Mr. Brill? A Because I'm the g eneral contractor. Q You were -- A Not General contr actor, I'm the super -- supervisor. Q Now, it doesn't say that you were the supervisor of this project, does it? I mean, it makes reference to -- let me strike that. Start again. A Yes. Q On this document it says that you are identified as the contractor. Isn't that true? You see that on the -- you show him, like, on the second 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 paragraph, K&I Contractors, Inc., of Allentown, County of Lehigh, Commonwealth of Pennsylvania, hereinafter called the contractor? A Yes. Q Is this document incorrect - A It's correct. Q -- that you were not the contractor? A It's correct. Q Did Mr. Brill ask you to sign this document? A Yes. Q And what's your understanding of the document? A Okay. K&I Contractors subbed out from the Commons at Parker Spring the roofing part of the job, siding installation, and gutters and downspouts. Q Okay. Is that -- that's your answer? A Yes. Q Did Mr. Harry Brill, did he have the authority to sign checks for K&I? A No. Q Did you have the authority to sign checks for Parker Springs? A No. Q So any check that was issued by K&I was signed by you? 35 • 1 2 3 4 5 • 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A That's correct. Q And checks issued by Parker Springs was signed by Mr. Brill? A Yes. Q Did Mr. Brill pay you any fee for the construction management at this project over and above the per townhouse fee you mentioned previously? A Harry Brill pay me for the management $7,500. Q Per unit? A Per unit. Q Any other fees he paid you? A He didn't pay me fees. He paid me contract price to install roofing and siding and gutters and downspouts. Q Was there a written contract for that work? A Proposal. Q Is that a yes? A Yes. Q There's a written contract? A Um-hum. Q And you have to say yes or no. A Yes. Q Is that in your file -- A Yes. 36 2 3 4 5 6 7 8 9 10 11 • Q -- those contracts? I'm sorry. for roofing? A Siding. Q Spouting? A Yes, and siding. Q Roofing, spouting, and siding? A Yes. They were Q On this project, do you recall that there was a lot of rock? A Yes. Q And it required a lot of blasting? A Yes. Q Who was responsible for approving the blasting work to be done? A All the documents were presented to Harry 12 13 14 15 Brill. Q My question was who had the authority to approve the additional blasting work to be done on the project? A Harry Brill. Q Did you authorize Varish to do blasting? A Harry -- Harry Brill and Varish talked about blasting. They had the meeting prior of starting the project, yes. Q My question was at -- 16 17 18 19 20 21 22 23 24 25 37 • F- L] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Then, yes, Harry Brill. Q But my question was, Mr. Zieja, did you or Ziggy ever authorize Varish to do blasting work? A Harry Brill authorized blasting. There was no need for second authorization. Q How about when Harry Brill wasn't on the project or on the site? Who would authorize Varish to do blasting then? A Harry Brill authorized Varish to blast the project. So I pretty much understand your question, it's the approval was made before the project was started. Q Did you ever ask Varish to cancel the invoices issued to you and to reissue them to Commons at Parker Springs? A We told them to bill the Parker Springs development. Q So as you received the invoices that are Exhibit B to the complaint, you told Varish to invoice Parker Springs? A Yes. Q Each and every time or one time? A And again, the contract was between Varish and the Commons at Parker Spring. Q I'm trying to understand, Mr. Zieja. You 38 1 2 3 4 5 6 7 had -- there was a contract between Commons at Parker Springs and Varish Construction. A Yes. Q And yet Varish Construction was sending your company invoices, correct? A Yes. Q And some of the invoices you paid, correct? r? 0 25 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A Yes. Q Others you chose not to pay, correct? I mean, yes or no? A It was supposed to invoice the Commons at Parker Spring. I was not responsible for paying any invoices. Q But yet you agreed with me that some of the invoices were paid by your company? A I've fronted the money, not to delay the project. And I was reimbursed a hundred percent with no profit from Harry Brill. Q But on Invoices No. 7 through whatever the last number is here, 15 is the last invoice sent to Parker Springs, these invoices were not paid by you and you don't -- you don't know whether Parker Springs paid them, do you? A I don't know. Q My question was did you tell Varish that you 39 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 E 25 17 18 19 20 21 22 23 24 were not going to pay these and they should re-invoice Parker Springs? A I told them we're not responsible for paying any invoices. Q When did you tell them that? A I don't have specific date. I don't remember. Q Let's look at these quickly in a row. Invoice No. 7 is dated June 26th, 2007. Do you recall when you received that? A Yes. Q When? A Oh, I'm sorry. I don't have a date. The -- Q Would it have been on or about June 26th of 2007? A Yes. Q Next, Invoice No. 8 is dated July 17, 2007. Do you know when you would have received that invoice? A I don't remember the dates. Q Well, did you tell Mr. Varish each and every time you received an invoice that you weren't going to pay it or did -- how did you communicate with Mr. Varish regarding these invoices? A Varish Construction entered agreement with the Commons at Parker Spring and they suppose to 40 1 2 3 4 • 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 invoice the Commons at Parker Spring. Q Is that what you told Mr. Varish? A Yes. Q Did you tell him that one time or each and every time he sent you an invoice? A I don't remember. Q But my question is, on June 26th he sent you an invoice and at some point you told him there was a contract between Parker Springs and Varish and he should not be invoicing you; is that correct? A Yes. Q And then he sent you another invoice three weeks later, same thing happened, on July 17th? MR. REED: I'm going to object to the form of the question because I think it's confusing. He said he already -- he doesn't remember when he told him that. And so it may have been before, between, or whatever, any of these invoices. BY MR. GOOD: Q I understand. I'll follow the question. A Just on the dates are -- strike that. Q Okay. A I don't remember. Q I see going through the documents they're Invoiced No. 10 and 11 were on July 24th? 41 0 1 2 3 4 5 6 • 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. REED: Well, the Invoice No. 11 is July 224th. BY MR. GOOD: Q I see that. Someone made a typo. Do you know if that was July 22nd or July 24th? A I don't remember. Q And then the next number, 12, the date on that one is August 29th, 2007. This is approximately five weeks after Invoices 10 and 11. Do you know why Mr. Varish continued to invoice K&I for this work? A I don't know why. Q Did you talk to him about it? A We told him to invoice the Commons at Parker Spring. Q And Invoice No. 13 is dated September 5th, 2007. Do you see that? A Yes. Q So this is more than two months after the first invoice wasn't paid and Mr. Varish continues to invoice K&I Construction? That's correct? A Yes, yes. Q And you did not -- did you talk to him again in September? Do you remember? A I don't remember. Q Invoice No. 14 is dated September 24th, 42 • 1 2 3 4 • • 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2007. Did you talk to him about this invoice? A Don't remember. Q Invoice No. 15 is dated September 28th, 2007, for $26,000. Did you discuss this invoice with Mr. Varish? A I don't remember. Q Mr. Zieja, as you receive these invoices, did you have conversations with Mr. Brill? A Yes. Q Did you make a recommendation to Mr. Brill regarding these invoices? A I gave him the copies of the invoices and I gave him the update on the project. Q What was your recommendation regarding whether Mr. Brill should make payment on these invoices? A Mr. Brill and -- and project manager schedule work through the development and inspected the project, and based on the inspection Harry Brill was not satisfied with Varish performance. Q My question was whether you made a recommendation to Mr. Brill regarding payment -- A No. Q -- of these invoices. A No. 43 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q No? A No recommendation. Q Now, regarding the complaint that Mr. Reed showed you and Page 2 of that complaint, where it summarizes the work, the claim -- I'm sorry -- D is cost for removal of materials, $2,400. Do you see that? A I see that. Q Did K&I instruct Varish to remove the materials from the project? A From what I understand, that was included in his contract. Q My question was did K&I instruct Varish to remove the materials from the project? A What materials? Q Any materials. A Is this construction materials or rock or topsoil? Q Was there ever an instruction made by K&I to have Varish remove materials from the project? A There was no -- from what I remember, it had to be authorized by Harry Brill and change order supposed to be presented to Harry Brill and approved in order to do that. Q I understand that, Mr. Zieja. My question 44 0 1 2 3 4 5 6 7 8 9 • f ? 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was whether K&I Construction ever told Varish to remove materials from the site. A Me personally, I didn't authorize Varish. Q Do you know if Ziggy authorized -- not -- strike that. Do you know if Ziggy told Varish to remove materials from the site? A I was not aware of that. I don't -- I'm not sure. Q Did you ever inform Varish Construction that you were -- K&I was the construction manager on this site? A Yes. Q Verbally? A Yes. Q Did you explain to him what your duties would be as the construction manager? A Yes, to build the units. Q Excuse me? A Construct the units, help supervise -- supervise construction of the units. Q I'm referring to Varish's contract work? A Yes. Q Did you tell Varish that you were the construction manager as relating to his work? A The infrastructure, I was not contracted to 45 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 do that. I was not paid -- I was not responsible for that. Q Who was responsible for that? A Harry Brill and Varish. Q So you were not the construction manager on Varish's contract? A No. Q And you were not to give Varish instructions as to work, coordination, or anything of those types of issues? A No. Q Excuse me? A No. Q And how about Ziggy, same thing? A Yes. Q Mr. Zieja, did you change your testimony from the beginning of the deposition till now? I thought you testified previously that you were the construction manager on this project? A On units only, not the infrastructure of the development. Q If you had no authority regarding the Varish contract with Parker Springs, why were you at the meeting on or about June 30th of 2007? A Because we started the construction of the 46 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 • 15 16 17 18 19 20 21 22 23 24 25 units. Q okay. When did you -- when did K&I first have a presence on this project? What date, approximately? If it helps, I can tell you that Varish's contract with Commons at Parker Springs is dated June 21st, 2006, if that helps you. A Yes. Well, okay. My -- roughly March 2007. Q You had no presence there until that time? A (Shook head left and right.) Q And when did you first begin the construction of town homes? A After March of 2007. Q A week after? A month after? A year after? A Probably a month, a couple -- two months later. Q So when you go to the project there was no town homes started, correct? A No. Q When you first arrived on the project what was the status of the construction at that project? A The excavating of the road, excavating was, you know, in progress. Q And isn't it true that Ziggy was overseeing that excavation? A Not the road, just the unit. 47 r? • r? ?J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Well, there were no units? A We were preparing to start the foundations, preparing. Q And what does it mean to prepare to start the foundations? A Well, you got start somewhere. Q Where did you start? A The paperwork, hiring subs, not -- we're subcontracting subs, basically. Q So if Tom Varish testified that he was taking instruction from you and Ziggy, that would be incorrect? MR. REED: When? BY MR. GOOD: Q In March -- when you got to the project, in March of 2007? A Instructions, what kind? Q What to do, where to do it, what -- where to blast -- A No. Q -- those types of things? Ziggy -- neither Ziggy nor yourself had any authority regarding Varish Construction? A No. Q Even though you told Varish you were the 48 1 2 3 4 5 6 7 8 9 10 11 12 is 13 14 15 16 17 18 19 20 21 22 23 24 25 construction manager, that's your testimony? A Yeah. MR. GOOD: Okay. I have nothing further. BY MR. REED: Q Just a couple follow-up questions, Mr. Zieja. On this project you've talked about how you were the construction manager. Did you hire any subcontractors on the project? Did K&I hire any subcontractors? A No, we did not. Q So any contractors that were on this project were to be paid directly by Mr. Brill, is that your understanding? A Yes. Q Or by Commons at Parker Springs? A Yes. Q And did that include K&I as a contractor for the work that K&I did -- the roofing, the spouting, and the siding? A Yes. Q In his testimony the other day, Mr. Varish testified that he was present at a meeting, I believe, at a diner with you and that Ziggy was present and that Mr. Brill was present, and that during that meeting that you and he entered into a verbal 49 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subcontract for him to do pads and footers at the town homes. Is that correct? Did that happen? A That's incorrect. Q What do you recall, if anything, about such a contract? Or did that conversation not happen? A It did not happen. Q Mr. Good asked you several questions about the invoices that were not paid. And some of those invoices are dated in September of 2007. Do you see that? A Yes. Q I want you to look particularly at Invoice No. 15 as part of exhibit -- it's part of Exhibit B to the complaint. The first item on that invoice says rental for equipment left on site due to work stoppage as per letter received via counsel for Harry Brill on 9/17/07. Do you see that? A Yes. Q Did you become aware at some point that Mr. Brill, through his attorney, had -- Mr. McFadden, had asked Varish Construction to stop work on the project and leave? A Yes. Q You were aware of that? A Yes. 50 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And if you received an invoice after Varish Construction left the project, would that have been a reason for you not to pay, in addition to your comments earlier, that any invoices should have been paid if at all by Commons at Parker Springs, but once Varish left the project did you consider you had any duty to pay invoices to Varish? A I was not responsible to pay any of the -- his invoices. Q For the reasons you said before? A Yes. Q Now I want to ask you a little bit more in detail or try to clear something up about the representation -- your representation in the other case that's involved here. Do you recall when that case was initiated that you came here to my office with Mr. Brill and we discussed who was going to represent the various parties in the case? A Yes. Q And do you recall Mr. Brill saying that because he felt that his company was primarily responsible for anything that was in the dispute that he would pay me to represent not only Commons at Parker Springs but to represent K&I and to represent 51 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 • 19 20 21 22 23 24 25 PSI Pumping Solutions, correct? A Now that -- now that -- I remember. Q And you and I even had some discussion after that about the fact that I was going to be filing preliminary objections on your behalf. Do you recall that? A Okay. Yes, now I do. Q So when I acted on your behalf to file those preliminary objections, did I have authority to do that on your -- from you? A Yes. Q And there was some discussions even at that meeting that we're talking about where we talked about whether or not I could ethically represent you and PSI Pumping Solutions, correct? A Yes. Q And the way we left it was that I was going to file these preliminary objections and that after those got sorted out we might have to -- you might have to obtain other counsel, but for right now I could represent you. Do you recall that? A Yes. Q And so we haven't gotten beyond preliminary objections in that case, and that's why there hasn't been any other counsel contacted, at least at this 52 • E .7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point; is that right? A Yes. MR. REED: That's all I have. BY MR. GOOD: Q Mr. Zieja, am I to understand in light of your testimony just now to Mr. Reed that Mr. Reed does represent you in the initial complaint that was filed against you in Cumberland County that you referred to just now; is that correct? A Yes. Q But in this mat -- in this complaint he does not represent you? MR. REED: He's not a party to this complaint. Nobody needs to represent him. MR. GOOD: I understand. THE WITNESS: No. MR. GOOD: Well, my question is I have a request for Mr. Zieja's project file and I want to know if I can contact him directly or if I should contact his attorney, and I don't know who his attorney is. MR. REED: Well, I think he told you who his attorney is for this case. BY MR. GOOD: Q Well, he didn't. He said he didn't know. 53 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 He said Mr. Konups was his corporate attorney. And I'm going to give you my card and ask that you let me know by Monday who -- MR. REED: Right. BY MR. GOOD: Q -- whom I should contact. I don't want to contact you if you have a lawyer. That's what I'm concerned about. But I do want a copy of the project file. Can I make that request, and this would be, I guess, third-party discovery, but I need to do it through your attorney unless you don't have one and I could talk to you directly. I'm concerned because Mr. Reed represents you in another companion action. I don't want to run afoul of any rules that Mr. Reed and I have to live by. Do you understand that? A We met -- we just met 30 minutes ago. I got to talk to my lawyer and see where we stand. Q Okay. So I'll give you my card and -- A I'll go -- I'm going to make that decision. Q And either you or he call me by Monday? A My legal rights. MR. GOOD: Exactly. I have nothing further. (Proceedings concluded at.11:12 a.m.) 54 01 1 2 3 4 5 6 7 8 9 10 11 12 0 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMONWEALTH OF PENNSYLVANIA) ) Ss COUNTY OF DAUPHIN ) I, HEATHER L. ARTZ, RMR, CRR, a Court Reporter-Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Mechanicsburg, Pennsylvania, do hereby certify the foregoing is the testimony of KONRAD ZIEJA taken by Plaintiff at METTE EVANS & WOODSIDE, 3401 North Front Street, Harrisburg, Pennsylvania. I further certify that before the taking of said I deposition the witness was duly sworn; that the questions and answers were taken down in stenotype by the said Reporter-Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. IN WITNESS WHEREOF, I have hereunto subscribed my hand this 29th day of October, 2008. COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL HEATHER L. ARTZ, Notary Public OTARY PU L Lower Allen Twp., Cumberland County M My ommission Expires Feb. 22, 2010 February 22, 2 010 . 0 C] 55 $ [$2,400 [1] - 43:6 $26,000 [1] - 42:4 $39,424111- 26:7 $7,500111- 35:9 $7500 111 - 19:9 '07 (11 - 10:24 '93 [11 - 4:5 ?- 0 07-6274 [1]- 13:22 • 1 [51- 25:1, 26:6, 26:7, 26:25, 27:22 10 [21- 40:25, 41:9 100[1]-15:12 11 [41 - 33:5, 40:25, 41:1, 41:9 12 [1]- 41:7 13 [1] - 41:15 14 [1]- 41:25 149,000 [1] - 12:10 15 [31- 38:20, 42:3, 49:13 17 [1]- 39:17 17th (11-4 :13 18109 [11 - 3:19 2 • 2 (21- 12:2, 43:4 2006 [11- 46:6 2007 [141- 11:11, 30:7, 39:9, 39:15, 39:17, 41:8, 41:16, 42:1, 42:4, 45:24, 46:7, 46:12, 47:16, 49:9 2's"" - 46:6 224th [11- 41:2 22nd [11- 41:5 24th [31- 40:25, 41:5, 41:25 26[11-30:7 26th [31- 39:9, 39:14, 40:7 28th [11- 42:3 129th (11- 41:8 3 3 [31- 8:4, 25:10, 27:2 30 [21- 19:18, 53:16 30th [21- 30:20, 45:24 4 4161- 7:15, 8:4, 24:20, 26:6, 26:25, 27:2 5 5 [51- 8:5,12:3, 12:11, 27:2, 28:2 5th [11 - 41:15 6 6 [1] - 27:2 7 7 [31- 30:6, 38:19, 39:9 8 8 [11- 39:17 801111 - 3:18 9 9117/07 [1] - 49:17 A 33:13, 39:24 ahead (11- 4:3 Allentown [91 - 3:18, 15:5,16:9,18:3, 18:4, 25:22, 25:23, 30:21, 34:1 allow [11- 31:25 amount [21- 19:7, 26:11 amounts [11 - 12:2 annotations [11 - 30:14 answer [31- 20:5, 23:3, 34:16 answered (11- 23:1 answers [21- 22:8, 22:25 apartment (21- 17:18, 18:7 apologize 111- 28:22 appear [11- 7:16 applied [11 - 9:24 appropriate [11- 11:15 approval [1] - 37:11 approve [31- 11:24, 21:19, 36:18 approved [31- 8:9, 8:11, 43:23 approving [21- 11:19, 36:13 arrangement (11- 6:17 arrive [11 - 31:14 arrived [11- 46:19 at.11:12 111 - 53:23 attach (11- 7:10 attached [21 - 28:23, 32:25 attorney [91- 24:4, 24:6, 24:17, 49:20, 52:20, 52:21, 52:23, 53:1, 53:11 August [11 - 41:8 authority [81- 22:7, 22,24, 34:19, 3421, 36:17, 45:22, 47:22, 51:9 authorization [11 37:5 authorize [41 - 36:21, 373, 37:7, 44:3 authorized [a1- 37:4, 37943:22, 44:4 available 151- 9:17, 11:8, 22:12, 22:14, 22:15 aware [71- 31:23, 32:2, 32:4, 32:10, 44:7, 49:19, 49:24 a.m [11- 53:23 able [21- 9:1, 22:17 acted [11- 51:8 action [1] - 53:13 activity [51- 4:22, 4:25, 5:22,19:3. 19:25 add [11 - 7:8 addition [11 - 50:3 additional [31- 31:2, 31:13, 36:18 address (5) - 3:14, 3:16,15:4, 25:23 afoul [11- 53:14 ago [1] - 53:16 agree [21- 25:2, 26:3 agreed [41- 5.5, 5:7, 8:18, 38:14 agreement [1ol - 5:18, 5:21, 8:17, 18:21, 18:23, 19:11, 27:15, B M [31- 17:11, 17:13, 17:20 oalance [21- 12:7, 12:9 Balance [11- 12:14 Bank [21- 25:16, 25:20 bank [11- 25:18 based [21 - 27:13, 42:19 basis [21 - 27:11, 27:13 become [11- 49:19 begin [11- 46:10 beginning [11- 45:17 behalf [71- 6:13, 8:9, 8:18, 21:20, 26:19, 51:5, 51:8 behind (11- 31:13 belief [11 - 27:11 best [11- 9:5 Bethlehem (31- 16:10, 16:11, 16:12 between [101 - 3:2, 12:19, 17:6, 21:15, 27:13, 30:16, 37:23, 38:1, 40:9, 40:17 beyond [21- 11:6, 51:23 bill [21- 26:7, 37:16 billed [11- 25:3 bills [21- 7:1, 11:15 bit [11- 50:12 blast [21- 37:9, 47:19 blasting 181 - 36:11, 36:14, 36:18, 36:21, 36:23, 37:3, 37:4, 37:8 board (11 - 15:17 boards [1] - 15:21 bond [31- 31:24, 32:6 bottom [11 - 33:9 branch [21- 25:18, 25:20 Brill [871- 5:10, 5:12, 5:13, 5:14, 5:16, 6:5, 6:10, 6:18, 6:23, 7:15, 7:18, 7:24, 8:9, 8:18, 8:19, 9:9, 9:10, 9:17, 9:20, 10:12, 11:2,11:7, 11:8, 11:12, 11:21, 16:24, 17:2,17:5, 17:6, 17:8,17:10 ' 17:11, 18:1, 18:11, 18:15, 20:23, 21:12, 21:16, 21:20, 22:10, 22:12, 23:8, 24:19, 25:9, 26:6, 26:7, 26:21, 26:25, 28:2, 28:18, 28:21, 29:22, 30:13, 30:17, 30:25, 32:7, 32:18, 33:5, 33:14, 34:9, 34:18, 35:3, 35:5, 35:8, 36:16, 36:20, 36:22, 37:1, 37:4, 37:6, 37:9, 38:18, 42:8, 42:10, 42:15, 42:17, 42:19, 42:22, 43:22, 43:23, 45:4, 48:12, 48:24, 49:16, 49:20, 50:17, 50:21 Brill's [31- 7:15, 11:23, 33:11 bring [11 - 10:6 Broadway Ili - 26:1 build [21 - 32:20, 44:17 building (51- 4:21, 18:2, 19:11, 19:12, 19:15 buildings [21- 17:19, 18:7 built [21 - 4:9, 32:18 business 141- 3:16, 3:20,17:8 Business [11- 3:17 BY 1171 - 3:11, 5:2, 10:7,13:7, 20:10, 23:2, 24:25, 25:8, 28:7, 29:9, 40:19, 41:3, 47:14, 48:4, 52:4, 52:24, 53:5 L C cancel [11- 37:13 capacity [11 - 8:3 card [31- 24:15, 53:2, 53:18 case 171 - 5:17, 10:3, 50:15, 50:16, 50:19, 51:24, 52:23 certain [11- 32:5 certification [11- 3:4 change [71 - 11:4, 11:19,11:24, 21:14, 21:19, 43:22, 45:16 changed [11- 10:25 charge (11- 11:19 1 charged [21- 7:3, 7:4 56 • • 17--? check [51 - 25:10, 25:14, 26:2, 27:24, 34:24 checks 141- 25:20, 34:19, 34:21, 35:2 chose 111- 38:9 claim [5) - 10:2, 12:3, 12:4, 28:1, 43:5 claimed (11- 12:2 clarification [11- 22:3 clear 121- 23:4, 50:13 cleared 111- 22:9 Close [11- 13:10 comments 111- 50:4 commercial [1] - 4:8 Common 111- 13:23 Commons 1311- 4:12, 6:5, 6:7, 6:13, 7:12, 7:24, 9:21, 10:16,11:2,11:16, 12:19,13:21, 17:24,21:12, 21:15, 23:14, 23:16, 27:14, 32:21, 34:14, 37:14,37:24, 38:1, 38:11, 39:25, 40:1, 41:13, 46:5, 48:15, 50:5, 50:24 Commonwealth 111- 34:2 communicate 121 - 24:3, 39:22 companies [11 - 14:12 companion (11 53:13 company (211- 3:23, 3:25,4:4, 4:6,6:1, 7:23,8:10,8:11, 8:16,15:10,15:12, 15:14,16:25,17:6, 17:12,17:25, 21:8, 29:22, 38:5, 38:15, 50:22 company's [2) - 8:13, 29:20 complaint 1111- 13:20, 28:1, 28:6, 28:8,37:19, 43:3, 43:4, 49:14, 52:7, 52:11, 52:14 completed [61- 28:19, 28:24, 28:25, 29:12, 29:15, 30:15 completely 111 - 30:5 complexes [11 - 17:18 concerned [31 - 14:7, 53:8,53:12 concluded I1l- 53:23 confirm 111- 23:20 confused (11 - 23:11 confusing [11- 40:15 confusion (11 - 23:12 conjunction [1) - 17:10 consider 111 - 50:6 Construct 111 - 44:19 constructed [11 - 19:10 Construction 1281- 7:17, 7:21, 7:23, 9:12,10:3,10:14, 13:13,14:23, 14-25,17:25, 21:2, 21:5, 21:6, 21:24, 22:2, 23:10, 26:22, 27:14, 30:10, 38:2, 38:4, 39:24, 41:20, 44:1, 44:9, 47:23, 49:21, 50:2 construction 1291- 4:7, 5:24, 9:14, 17:20, 18:1, 18:10, 1818, 20:7, 20:12, 20:21, 21:3, 31:7, 31:8, 32:11, 32:12, 32:14, 35:6, 43:17, 44:10, 44:16, 44:20, 44:24, 45:5, 45:19, 45:25, 46:11, 46:20, 48:1, 48:7 33:24, 34:3, 34:7, 48:17 contractors [71- 6:3, 6:19,7:1, 7:9, 31:25,32:8, 48:11 Contractors [7) - 4:1, 13:21, 25:4, 25:11, 27:3, 34:1, 34:13 contracts 111- 36:1 convenience 11] - 26:17 conversation Ill - 49:5 conversations [1] - 42:8 coordination [1] - 45:9 copies [11 - 42:12 copy (51- 7:16, 8:25, 10:1,10:5, 53:8 corporate (3l - 15:24, 16:1, 53:1 corporation 151- 6:8, 7:25,15:7,15:18, 16:13 correct [211- 5:18, 19:22, 20:13, 22:13, 27:3, 27:6, 31:7, 33:2, 34:6, 34-8135:1, 38:5, 38:7, 38:9, 40:10, 41:20, 46:17, 49:2, 51:1, 51:15, 52:9 Correct [11- 6:11 correctly [21- 13:10, 25:13 cost [41- 12:21, 12:22,12:23, 43:6 costs 111- 31:13 counsel [51- 13:16, 13:18, 49:16, 51:20, 51:25 counting (11- 27:22 County [41- 4:13, 13:23, 34:1, 52:8 couple l21 - 46:14, 48:5 Court ill - 13:23 Cumberland (31- 4:13, 13:23, 52:8 contact [51- 24:9, 52:19, 52:20, 53:6, 53:7 contacted 111 - 51:25 contends 111- 10:13 continued [11- 41:10 continues 111- 41:19 contract 1251 - 5:3, 8:21, 12:10, 12:14, 12:19, 18:20, 21:15, 23:14, 27:13, 27:15, 27:18, 27:19, 27:20, 35:13, 35:16, 35:20, 37:23, 38:1, 40:9, 43:12, 44:21, 45:6, 45:23, 46:5, 49:5 contracted [ll - 44:25 Contracting (21- 3:22, 17:3 contracting (1] - 3:23 contractor [61- 33:15, 33:17, date [51- 11:10, 39:6, 39:13, 41:7, 46:3 dated 181- 30:7, 39:9, 39:17, 41:15, 41:25, 42:3, 46:6, 49:9 dates [2) - 39:19, 40:21 decide [11- 10:25 decision [31- 11:23, 24:11, 53:19 defined ill - 17:24 delay (31- 9:13, 26:23, 38:16 delays 111 - 31:14 deposition [51- 4:15, 7:15,10:10, 13:14, 45:17 detail 111- 50:13 details (11 - 29:11 development [4] - 5:9, 37:17, 42:18, 45:21 different [31- 8:10, 14:12, 17:12 diner [11 - 48:23 directed (11- 9:10 directly [61- 10:17, 11:16, 23:18, 24:4, 24:17, 48:12, 52:19, 53:12 directors 121- 15:17, 15:22 discovery [1] - 53:10 discuss 111- 42:4 discussed 111 - 50:18 discussion [21- 25:7, 51:3 discussions 11) - 51:12 dispute [1] - 50:23 docketed (11- 13:22 document (111- 7:14, 25:2, 25:11, 27:17, 27:23, 33:5, 33:7, 33:23, 34:5, 34:9, 34:12 documents 131- 28:3, 36:15, 40:24 done [91- 17:9, 17:23, 17:25, 18:10, 20:11, 31:2, 32:25, 36:14, 36:18 down [11- 29:4 downspouts (31- 18:9, 34:15, 35:15 drainage (11 - 18:9 due (2) - 12:2, 49:15 duly [11- 3:9 during [61- 4:15, 6:12, 9:16, 10:9, 11:7, 48:24 duties 131- 5:4, 20:1, 44:15 duty [11- 50:7 E East [21- 3:18, 15:4 Easton Ill - 18:4 either (21- 24:17, 53:20 Emmaus [11- 18:4 end ill - 24:12 engage 11] - 27:15 entail 111 - 18:6 enter [21- 8:16, 33:13 entered [31- 14:11, 39:24, 48:25 entire 111- 19:18 equipment (11- 49:15 Equity (31- 17:11, 17:14,17:21 ethically 111 - 51:14 exactly [21- 11:10, 28:11 Exactly [21- 6:9, 53:22 EXAMINATION 11] - 3:10 examined 111- 3:9 example 111- 9:8 excavating [3) - 7:23, 46:21 excavation 111 - 46:24 except (1l - 3:5 Excuse 131 - 4:23, 44:18, 45:12 Exhibit (141- 7:15, 10:4,10:8,12:5, 28:3, 28:6, 28:8, 28:13, 28:23, 30:7, 33:1, 33:5, 37:19, 49:13 exhibit [41- 27:1, 28:4, 28:5, 49:13 exhibits (21- 10:2, 12:3 experience [11- 32:13 explain (21- 21:2, 44:15 exterior (11 - 4:8 extra (21- 10:12, 11:5 F facia (11- 18:8 fact 121- 11:3, 51:4 Fairmont [21- 3:18, 15:4 fare mar [21- 4:11, 33:6 far 141- 14:7, 19:20, 57 • • 20:15, 33:1 faxed [11- 11:22 fee 151- 5:5, 5:7, 5:25, 35:5, 35:7 fees 121- 3512, 35:13 felt [11- 50:22 file [121- 23:23, 23:25, 24:5, 24:18, 26:13, 29:5, 29:10, 35:24, 51:8, 51:18, 52:18, 53:9 filed [51- 10:2, 13:19, 13:20, 14:10, 52:7 filing [11- 51:4 final [1] - 11:23 finally [11- 30:5 fine [11- 3:17 finished (11 - 30:5 first [81- 7:17, 9:9, 30:6, 41:19, 46:2, 46:10, 46:19, 49:14 five [71 - 19:11, 19:12, 19:15, 19:19, 22:11, 26:3, 41:9 five-unit[21- 19:11, 19:12 flat [41 - 4:8, 5:5, 5:7, 5:25 Florida [31- 6:18, 11:12, 26:21 follow 121 - 40:20, 48:5 follow-up [1] - 48:5 follows 111- 3:9 footers [5] - 8:4, 8:6, 8:10, 8:12, 49:1 form 13] - 3:5, 20:4, 40:14 forth 141- 27:16, 28:19, 29:12, 29:15 forwarded [11- 30:13 foundations 121 - 47:2, 47:5 front [31- 6:20, 24:20, 24:22 fronted [41- 6:21, 7:1, 26:23, 38:16 full 111- 20:16 function [1l - 21:2 future [11- 9:2 G general [2l - 33:15, 33:17 George [21- 16:4, 16:6 GOOD [211- 4:23, 5:1, 10:5, 13:7, 20:10, 23:2, 24:25, 25:6, 25:8, 28:7, 29:9, 40:19, 41:3, 47:14, 48:3, 52:4, 52:15, 52:17, 52:24, 53:5, 53:22 Gorski [1] - 20:19 guess [4l - 8:5, 13:24, 14:11, 53:10 gutters [31 - 18:8, 34:15, 35:14 H half [1l - 15:13 Harry [54] - 5:12, 5:13, 6:5, 6:18, 7:18, 7:24, 8:9, 8:18, 8:19, 9:9, , 9:10, 10:12,11:2 11:21, 16:24, 17:2, 17:5,17:6, 17:7, 17:10,17:11, 18:1, 18:11, 18:15, 20:23, 21:12, 21:16, 21:20, 22:10, 23:8, 26:7, 26:21, 29:22, 30:13, 30:17, 30:25, 32:18, 33:11, 34:18, 35:8, 36:15, 36:20, 36:22, 37:1, 37:4, 37:6, 37:9, 38:18, 42:19, 43:22, 43:23, 45:4, 49:16 head 121- 29:4, 46:9 health [31- 6:19, 9:18, 26:21 hear [1l - 4:24 held [11- 25:7 help 111- 44:19 helps [21- 46:4, 46:6 hereby [11- 3:2 hereinafter [11- 34:2 hire 151 - 7:6, 7:9, 7:11, 48:71 48:8 hired [21- 7:24, 8:19 hiring [11- 47:8 homes [41- 5:24, 46:11, 46:17, 49:2 houses [11 - 32:20 hum [21- 16:17, 35:21 hundred [21- 31:12, 38:17 identified [1l - 33:24 identify [11- 25:13 ILONA [1] - 15:16 Ilona [11- 15:16 Inc [61- 7:17, 13:13, 13:21, 21:12, 25:4, 34:1 include [21- 30:3, 48:17 included [1] - 43:11 Including (1l - 26:6 Incorporated [21- 12:20, 15:2 incorporated [11- 14:25 Incorrect 181- 8:7, 8:8, 9:13, 27:9, 27:12, 34:5, 47:12, 49:3 incorrectly (11- 23:13 indicating [11- 30:15 industry [1] - 20:8 inform 121- 21:6, 44:9 information (41- 16:2, 16:23, 32:1, 32:9 Infrastructure 11] - 8:2 infrastructure [21- 44:25, 45:20 initial [11- 52:7 initiated [11- 50:16 inspected [11 - 42:18 inspection [1l - 42:19 install [1] 35:14 installation [11- 34:15 instruct [21- 43:9, 43:13 instructed [11- 22:21 instruction [31 - 22:3, 43:19, 47:11 Instructions 11l - 47:17 instructions 11] - 45:8 Invoice [101- 8:5, 27:1, 30:6, 39:9, 39:17, 41:1, 41:15, 41:25, 42:3, 49:12 invoice [281- 9:9, 9:10, 10:16, 23:17, 25:1, 26:2, 26:20, 30:6, 30:9, 30:14, 37:19, 38:11, 38:20, 39:1, 39:18, 39:21, 40:1, 40:5, 40:8, 40:12, 41:10, 41:13, 41:19, 41:20, 42:1, 42:4, 49:14, 50:1 Invoiced [11- 40:25 invoiced [21- 9:12, 27:2 invoices (551 - 7:17, 8:6, 9:4, 9:5, 9:14, 10:10,10:15, 10:19, 10:22, 11:1, 11:7, 12:5,12:8, 23:5, 23:10, 23:15, 24:21, 25:3, 26:3, 27:1, 27:5, 27:17, 28:1, 28:9, 28:11, 28:13, 28:19, 28:23, 29:12, 29:17, 29:21, 30:3, 31:4, 31:10, 32:25, 37:14, 37:18, 38:5, 38:7, 38:13, 38:15, 3821, 39:4, 39:23, 40:18, 42:7„ 42:11, 42:12, 42:16, 42:24, 49:8, 49:9, 50:4, 50:7, 50:9 Invoices [31- 8:4, 38:19, 41:9 invoicing [21- 27:9, 40:10 involved [31- 3:21, 18:13, 50:15 issued 131- 34:24, 35:2, 37:14 issues [1] - 45:10 item (11- 49:14 items [11- 12:9 Items [11- 12:21 itself [11- 12:4 J job (7] - 8:19, 9:13, 11:21, 22:14, 23:5, 31:12, 34:14 July [e1- 39:17, 40:13, 40:25, 41:1, 41:5 June (81- 10:23, 30:7, 30:20, 39:9, 39:14, 40:7, 45:24, 46:6 K K&I [461- 4:1, 5:5, 6:13, 6:21, 6:23, 6:25, 7:19, 9:4, 9:5, 9:8, 9:11, 10:11, 10:14, 11:17, 12:24,13:2, 13:21, 13:25, 14:23, 14:25,17:2, 17:25, 23:7, 23:10, 25:3, 25:10, 26:19, 27:3, 27:9, 28:16, 34:1, 34:13, 34:19, 34:24, 41:10, 41:20, 43:9, 43:13, 43:19, 44:1, 44:10, 46:2, 48:8, 48:17, 48:18, 50:25 K&I's [21- 4:16, 4:18 K-O-N-U-P-S [1] - 16:8 keep [1l - 10:20 kind [21- 8:16, 47:17 knowledge [1] - 9:6 known [1l - 4:12 KONRAD [11- 3:8 Konups 141- 16:4, 24:7, 24:8, 53:1 L last 151 - 10:11, 10:23, 28:4, 38:20 lawsuit 121- 14:10, 14:11 lawyer [91- 13:25, 14:2, 14:18,14:19, 16:2,16:3,16:23, 53:7, 53:17 lawyers (11- 14:21 least [11- 51:25 leave [1] - 49:22 left [51- 46:9, 49:15, 50:2, 50:6, 51:17 legal [11 - 53:21 Lehigh [11 - 34:2 letter [11- 49:16 lien [1l - 10:2 Liens 11l - 33:6 light [11- 52:5 line Ill - 20:8 listed [11- 28:23 live [1I - 53:15 look 151- 12:1, 23:22, 28:10, 39:8, 49:12 looking [11- 28:8 M mail ill - 11:22 Maintenance [21- 17:15, 17:18 maintenance ill - 58 • 11 E 17:17 manage p1 - 4:18, 4:22, 4:24, 5:22, 18:16,18:17,18:25 Manage [11- 4:25 management [41 - 4:7, 20:12, 35:6, 35:8 manager 1141- 18:18, 20:21, 21:3, 22:4, 31:7,31:8, 42:17, 44:10, 44:16, 44:24, 45:5, 45:19, 48:1, 48:7 managing ill - 19:1 March [41- 46:7, 46:12, 47:15, 47:16 marked [81 - 7:15, 9:4, 24:19, 25:9, 28:2, 28:4, 28:5, 33:4 markup [31- 6:25, 7:8, 9:24 mat 111- 52:11 materials [121 - 12:22, 12:23, 12:24, 43:6, 43:10, 43:14, 43:15, 43:16, 43:17, 43:20, 44:2, 44:6 matter [51 - 13:19, 13:20,14:4,14:6, 14:10 McFadden [11 - 49:20 mean 11 of - 17:1, 17:17,18:17, 21:8, 23:7, 25:19, 31:23, 33:20,38:10, 47:4 meaning 111 - 23:10 mechanic's 11l - 10:2 meeting 1111- 30:16, 30:20, 30:23, 30:24, 31:10, 31:17, 36:23, 45:24, 48:22, 48:25, 51:13 members [11- 15:21 mentioned 11) - 35:7 met [21- 53:16 Middleton 11l - 4:13 might [41- 9:1, 22:25, 51:19 minutes 111 - 53:16 Monday [31- 24:13, 53:3, 53:20 money [51- 6:20, 6:21, 26:24, 31:24, 38:16 month 121- 46:13, 46:14 months 13j - 22:12, 41:18, 46:14 mostly [21- 32:16 mouth [1l - 26:18 MR [391- 3:11, 4:23, 5:1, 5:2,10:5,10:7, 13:5,13:7, 20:4, 20:10, 23:1, 23:2, 24:22, 24:25, 25:6, 25:8, 28:5, 28:7, 29:6, 29:8, 29:9, 40:14, 40:19, 41:1, 41:3,47:13,47:14, 48:3, 48:4, 52:3, 52:4, 52:13, 52:15, 52:17, 52:22, 52:24, 53:4, 53:5, 53:22 N name 151- 3:25, 8:13, 13:12,15:15, 20:19 need [31- 19:7, 37:5, 53:10 needs 11l - 52:14 new [31- 18:10, 32:11, 32:13 next [11- 41:7 Next ill - 39:17 Nobody 11l - 52:14 None 111- 29:1 normally [11 - 7:7 North [11- 4:12 nothing [21- 48:3, 53:22 number [21- 38:20, 41:7 O Object [11- 20:4 object [21- 10:18, 40:14 Objection 11j - 23:1 objections [51- 3:4, 51:5, 51:9, 51:18, 51:24 obtain [11- 51:20 October Ill - 10:24 offer [11 - 18:15 office [1] - 50:17 officers [21- 15:24, 16:1 often 11j - 20:24 once [21- 14:14, 50:5 Once [11- 20:25 one [8l - 7:17, 10:24, , 14:16,33:5,37,22 40:4, 41:8, 53:11 one-page Ill - 33:5 ones 111- 11:1 opposed [11 - 11:1 oral [1l - 5:17 order 141- 11:4, 11:24, 43:22, 43:24 orders [31- 11:20, 21:14,21:19 originally [11- 19:17 overseeing (11- 46:23 own 14) - 3:23, 14:18, 17:11, 32:24 Owned 11l - 6:10 owned [11- 4:4 Owner[il - 5:9 ownerl3j - 15:12, 23:4, 29:22 owners I11- 15:10 ownership [31- 16:24, 17:2, 32:21 owns 121- 15:13 P package [41 - 7:18, 8:5, 9:9,10:11 pads [31 - 8:4, 8:6, 49:1 page (11- 33:5 Page 17) - 12:2, 25:1, 26:6, 26:7, 26:25, 27:22, 43:4 pages 121- 25:3, 27:23 paid [251- 6:1, 6:25, 9:4, 9:14, 9:20, 19:15,19:19,26:4. 27:5, 28:9, 28:11, 28:14, 28:16, 32:7, 35:12, 35:13,38:7, 38:15,38:21, 38:23,41:19,45:1, 48:12, 49:8, 50:5 paper [11 - 14:16 paperwork 111- 47:8 paragraph [11- 34:1 Paragraph [31- 12:3, 12:7,12:11 Parker [441- 4:12, 6:5, 6:7, 6:14, 7:12, 7:24, 9:21, 10:17, 11:2,11:16 ' 12:19, 13:21, 17:24, 21:12,21:16, 23:14,23:16, 26:10, 26:19, 27:14,27:19,31:6. 32:22, 34:14, 34:22, 35:2, 37:15, 37:16, 37:20, 37:24, 38:1, 38:12, 38:21, 38:22, 39:2, 39:25, 40:1, 40:9, 41:13, 45:23, 46:5, 48:15, 50:5, 50:25 part [31- 34:14, 49:13 partially [11 - 8:5 particularly [11- 49:12 parties [21- 3:3, 50:19 parts [11- 29:11 party 121 - 52:13, 53:10 Pause [11 - 28:10 pay [161 - 5:7, 6:4, 9:5, 9:8,10:14, 10:25,35:5,35:8, 35:13, 38:9,39:1, 39:22, 50:3, 50:7, 50:8, 50:24 paying [21- 38:12, 39:3 payment [141- 6:20, 9:11,18:24,19:6, 21:24, 23:25, 26:16, 26:19, 26:23, 31:22, 31:25, 33:1, 42:15, 42:22 payments [31- 6:13, 9:23, 32:5 Pennsylvania [41- 3:19,15:2,16:12, 34:2 people 111- 15:9 per 141- 18:24, 19:6, 35:7, 49:16 Per [21- 35:10, 35:11 percent [31- 15:12, 31:12, 38:17 percentage [61- 6:25, 7:2, 7:4, 7:8, 7:10, 9:23 performance 131- 31:1, 31:15,42:20 performed Ill - 10:13 period [21 - 11:6, 22:11 personal 11l - 3:16 personally [31- 17:6, 27:20, 44:3 Personally 111- 17:7 Peter 111- 13:12 phone 111- 22:15 pick [11- 29:8 pipe [1l - 12:22 place 11j - 31:24 Pleas 111 - 13:23 PNC [21 - 25:16, 25:20 point 151- 11:11, 30:9,40:8, 49:19, 52:1 preliminary [41- 51:5, 51:9, 51:18, 51:23 prepare [11- 47:4 preparing 121- 47:2, 47:3 presence [21 - 46:3, 46:8 present (51- 11:21, 30:18, 48:22, 48:23, 48:24 presented 141- 9:15, 31:4, 36:15, 43:23 president f3) - 14:23, 16:13,16:15 pretty [1] - 37:10 previous Ill - 32:14 previously [51- 5:14, 5:16,20:11, 35:7, 45:18 price [2j - 12:14, 35:14 prices lit - 12:10 primarily Ill - 50:22 problem [11- 10:19 problems [31- 6:19, 9:18, 26:22 Proceedings ill - 53:23 process [41- 32:3, 32:4,32:10, 32:11 produce 11j - 9:2 profit Ill - 38:18 progress [11- 46:22 project [711- 4:11, 4:15, 4:16, 4:17, 4:18, 4:19, 5:6, 5:8, 6:12, 7:7, 7:12, 7:22, 8:1, 10:13, 10:20,10:23, 13:3, 17:23, 18:11, 18:14, 18:16, 18:17, 18:25,19:2, 19:16,19:18, 20:24, 21:7, 21:11, 22:2, 22:4, 23:6, 23:23, 24:18, 26:13, 26:23, 29:5, 29:10, 30:2, 30:4, 31:23, 33:20, 35:6, 36:8, 36:19, 36:24, 37:7, 37:10, 37:11, 38:17, 42:13, 42:17, 42:19, 43:10, 43:14, 43:20, 45:19, 46:3, 46:16, 46:19, 59 • • • 46:20, 47:15, 48:6, 48:8, 48:11, 49:22, 50:2, 50:6, 52:18, 53:8 projects [21- 17:20, 20:12 pronounced 111 - 3:12 Proposal [11- 35:17 proposal 121- 8:17, 8:20 provide 111 - 22:25 PSI 131- 13:22, 51:1, 51:14 Pumping [31- 13:22, 51:1, 51:15 pursuant [11- 13:14 Put [21 - 26:18, 31:19 Q quality 111- 20:8 questioned [21- 31:2, 31:4 questions [91- 13:6, 13:14, 13:15, 22:8, 22:9, 22:22, 22:25, 48:5, 49:7 quickly [11- 39:8 R rather [11- 11:16 re [11- 39:1 re-invoice [11- 39:1 read 111 - 27:20 reason [21- 6:16, 50:3 reasons 111 - 50:10 receive 131 - 18:24, 30:9, 42:7 received 161- 37:18, 39:10, 39:18, 39:21, 49:16, 50:1 recognize 111- 25:11 recommendation [41 - 42:10, 42:14, 42:22, 43:2 record 161- 3:14, 24:16, 25:6, 25:7, 28:6, 28:9 records [21 - 23:25, 26:14 REED 1161- 3:11, 5:2, 10:7,13:5, 20:4, 23:1, 24:22, 28:5, 29:6, 29:8, 40:14, 41:1, 47:13, 48:4, 52:3, 52:13, 52:22, 53:4 Reed [111- 13:15, 13:18, 14:2, 17:24, 24:19, 27:25, 43:3, 52:6, 53:13, 53:14 refer 121-10:3, 10:8 reference [11- 33:21 referred [11- 52:8 referring [31- 4:16, 21:5, 44:21 refers [31- 12:12, 12:17, 12:18 regard [11- 10:12 regarding 191- 31:9, 31:10, 39:23, 42:11, 42:14, 42:22, 43:3, 45:22, 47:22 regular [11 - 15:18 reimbursed [21- 26:10, 38:17 reimbursement 111 - 26:14 reissue [11 - 37:14 related [11- 21:1 relating [11- 44:24 relationship [11- 17:5 release 121 - 31:24, 32:6 remainder [21- 7:18, 27:1 remaining [11 - 27:23 remember 1161- 11:10, 28:11, 30:16, 31:1, 39:7, 39:19, 40:6, 40:16, 40:23, 41:6, 41:23, 41:24, 42:2, 42:6, 43:21, 51:2 remodeling 111 - 18:5 Remodelling [11- 4:7 remodelling 111- 18:2 removal [21- 12:23, 43:6 remove [51- 43:9, 43:14, 43:20, 44:2, 44:6 renovations 121 - 4:8, 32:17 rental [11 - 49:15 repaid 111- 6:23 repairs [21- 18:8 repeat [21 - 21:4, 28:20 Replacing 111 - 18:7 reported 111- 20:22 represent [121- 12:4, 13:12, 28:12, 50:18, 50:24, 50:25, 51:14, 51:21, 52:7, 52:12, 52:14 representation 121- 50:14 representative [11- 31:6 represented 111 - 10:9 representing 121- 13:16, 14:6 represents 111- 53:13 request 121- 52:18, 53:9 requesting [21- 24:5, 24:16 required [11- 36:11 reserved [11- 3:5 respect [41- 8:8, 12:9,12:21, 20:1 respective [11- 3:3 responding [11- 14:9 responsibilities 131- 19:1, 20:3, 20:6 responsibility [61- 21:18, 21:23, 29:20, 29:24, 29:25 responsible 1111 - 4:20, 4:22, 21:14, 28:17, 36:13, 38:12, 39:3, 45:1, 45:3, 50:8, 50:23 result [11- 30:23 Result [11- 30:24 review [31- 23:5, 29:21, 29:23 reviewed [11 - 12:5 reviewing [11- 30:3 rights [1] - 53:21 road [31- 8:2, 46:21, 46:25 rock [2] - 36:9, 43:17 role [el - 4:16, 4:18, 5:21, 5:22, 21:7, 21:10 rolling 111 - 10:20 roofing [5] - 4:8, 34:14, 35:14, 36:2, 48:18 Roofing [11- 36:6 roofs [11- 18:7 roughly [11- 46:7 row [11 - 39:8 rules 111 - 53:14 run[11-53:14 S satisfied 131- 30:25, 42:20 schedule [31- 9:14, 31:13, 42:18 scope 121- 19:16, 20:3 sealing 111- 3:3 second (2) - 33:25, 37:5 secretary[ 11- 16:21 see 1141 - 7:19, 8:20, 12:15,14:17, 27:21, 33:25, 40:24, 41:4, 41:16, 43:6, 43:8, 49:9, 49:17, 53:17 send [11- 11:22 sending [11- 38:4 sent [41- 38:20, 40:5, 40:7, 40:12 September 161- 10:24, 41:15, 41:23, 41:25, 42:3, 49:9 series [21- 7:16, 28:1 set [51- 27:16, 28:18, 29:12, 29:15, 30:16 several [11 - 49:7 sewer [11- 8:2 sheet 111- 14:16 Shook [11- 46:9 show151-7:14, 10:1, 25:9, 33:4, 33:25 showed [31- 24:19, 27:25, 43:4 shown [11- 8:4 sick [11- 22:16 siding [s1 - 34:15, 35:14, 36:5, 36:6, 48:19 Siding [11- 36:3 sign [31- 34:9, 34:19, 34:21 signature [11- 33:9 signed 121- 34:25, 35:3 signing 121- 3:3, 21:14 site [101- 6:3, 20:16, 22:14, 22:19, 31:6, 37:7, 44:2, 44:6, 44:11, 49:15 SIX 121- 22:12, 26:3 smoothly (11- 20:7 soffits 111- 18:8 Solutions 13) - 13:22, 51:1, 51:15 Someone 111- 41:4 someone [11- 20:15 somewhere 111- 47:6 sorry [71- 4:2, 4:23, 10:24, 29:6, 36:1, 39:13, 43:5 Sony [11- 24:9 sorted 111 - 51:19 sorting [11 - 14:16 specific 141- 17:16, 19:25, 32:9, 39:6 specifically [11- 21:1 spell 111- 16:5 Spouting 111- 36:4 spouting 121 - 36:6, 48:18 Spring 1141 - 10:17, 11:2,12:19, 21:12, 21:16, 23:15, 23:16, 27:14, 34:14, 37:24, 38:12, 39:25, 40:1, 41:14 Springs [301- 4:12, 6:5, 6:7, 6:14, 7:12, 7:24, 9:21, 11:16, 13:21, 17:24, 26:10, 26:20, 27:19, 31:6, 32:22, 34:22, 35:2, 37:15, 37:16, 37:20, 38:2, 38:21, 38:22, 39:2, 40:9, 45:23, 46:5, 48:15, 50:5, 50:25 staffing 111 - 20:15 stand [11- 53:17 standard [11- 32:11 standards [11 - 20:9 Start [11- 33:21 start 141 - 47:2, 47:4, 47:6, 47:7 started [31- 37:12, 45:25, 46:17 starting 12] - 10:23, 36:23 state [11- 3:14 status [11- 46:20 still [11- 24:20 stipulated 111- 3:2 Stipulation 111 - 33:6 STIPULATIONS 111- 3:1 stop 111 - 49:21 stoppage [11- 49:15 storage [11- 12:23 street 111- 25:25 Street [11- 3:18 strike [41- 21:18, 33:21, 40:21, 44:5 stub [31 - 25:10, 25:14, 26:2 subbed [11 - 34:13 subcontract 121 - 13:2, 49:1 60 subcontracted [11- 12:25 subcontracting [11 - 47:9 II subcontractors (41- 7:6, 7:11, 48:8, 48:9 submitted [71- 9:16, 10:11, 11:4111:16, 11:20, 23:6, 32:6 Subparagraph [11- 12:11 subs [21- 47:8, 47:9 summarized [11 - 12:6 I1 summarizes I11- 43:5 • summer [11- 11:11 super (21- 5:5, 33:17 supervise 191- 5:6, 5:8,19:3,19:25, 20:2, 30:1, 44:19, 44:20 supervising [11- 21:11 supervisor [21- 33:18, 33:20 suppose (il - 39:25 supposed 141- 10:16, 23:15, 38:11,43:23 sworn [11- 3:9 system [21- 18:9, 31:24 T 0 tabulation 121 - 12:2, 12:7 technically [11 - 6:6 ten 11l - 17:8 terms [21- 5:20, 18:22 testified [71- 3:9, 5:16, 20:11, 28:13, 45:18, 47:10, 48:22 testimony [91- 26:9, 27:8, 27:18, 29:14, 32:25, 45:16, 48:1, 48:21, 52:6 THE (51- 4:25, 20:6, 24:24, 29:7, 52:16 third (11- 53:10 third-party [11- 53:10 three 131- 14:12, 14:21, 40:12 throughout 01 - 31:22 title [1l - 20:20 titled [21- 23:10, 25:3 TNT 151.8:13, 8:14, 8:17, 8:19, 8:21 today [41- 8:24, 8:25, 13:16, 24:13 Tom (11- 47:10 topsoil [11- 43:18 town [41- 5:24, 46:11, 46:17, 49:1 townhouse [11- 35:7 townhouses [21- 4:9,4:21 township [11- 32:6 Township [11 - 4:13 treasurer 111- 16:20 trial ill- 3:6 true [21- 33:24, 46:23 try 121- 28:22, 50:13 trying [1] - 37:25 two [31 - 10:11, 41:18, 46:14 type 131- 3:20, 4:6, 17:13 types [3) - 17:9, 45:9 47:21 typo [11- 41:4 U Um-hum [21- 16:17, 35:21 unavailable (11- 11:7 under (1l - 27:18 underground [1l - 18:9 unit [91- 18:24, 19:6, 19:11, 19:12, 19:15,19:18, 35:10, 35:11, 46:25 units [91- 19:10, 19:17,19:19, 44:17, 44:19, 44:20, 45:20, 46:1, 47:1 unless [11 - 53:11 unpaid [51- 10:10, 12:4,12.7, 12:10, 12:14 unused 11l - 12:22 up i51- 29:4, 29:81 30:16, 48:5, 50:13 update 111- 42,13 upkeep [11- 17:19 v various [11- 50:18 Varish 1721- 7:17. 7:21, 7:23, 9:12, 0, 10:3, 10:9,11:2 12:20, 12:25,13 2, 1312,13:19, 21:1, 21:5, 21:6, 21:10, 21:13, 21:16, 21:24, 22:1, 22:8, 22:21, 22:25, 23:6, 23:9, 26:22, 27:8, 27:14, 28:13, 30:10, 30:17, 31:1, 31:22, 36:21, 36:22, 37:3, 37:7, 37:9, 37:13, 37:19, 37:23, 38:2, 38:4, 38:25, 39:20, 39:23, 39:24, 40:2, 40:9, 41:10, 41:19, 42:5, 42:20, 43:9, 43:13, 43:20, 44:1, 44:3, 44:5, 44:9, 44:23, 45:4, 45:8, 45:22, 47:10, 47:22, 47:25, 48:21, 49:21, 50:1, 50:6, 50:7 Varish's (41- 31:15, 44:21, 45:6, 46:5 VCI [11- 25:3 verbal [31 - 18:21, 18:22, 48:25 Verbally [11 - 44:13 via (11- 49:16 vice 111- 16:15 view [11- 11:14 W Z ZIEJA[11- 3:8 Zieja [181- 3:12, 10:8, 13:8,19:24, 23:9, 25:14, 26:9, 28:22, 31:5, 31:21, 33:7, 37:2, 37:25, 42:7, 43:25, 45:16, 48:6, 52:5 Zieja's [11 - 52:18 Ziggy [141- 20:19, 22:5, 22:7, 22:21, 22:24, 37:3, 44:4, 44:5, 45:14, 46:23, 47:11, 47:21, 1 47:22, 48:23 waived [1l - 3:4 water [11 - 12:22 week [21 - 20:25, 46:13 weeks [21- 40:13, 41:9 wife (31- 15:13, 15:23,16:16 witness [11- 3:8 WITNESS [51- 4:25, 20:6, 24:24, 29:7, 52:16 words [11- 26:18 writing 121- 23:21, 31:19 written (51 - 5:18, 8:20, 25:21, 35:16, 35:20 Y year [U - 46:13 years [11- 17:8 yourself [21- 15:9, 47:22 00 _ is y ?„Y3 r ?-- N ?.? ?^ CD t VARISH CONSTRUCTION, INC., Plaintiff V THE COMMONS AT PARKER SPRINGS, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-7500 MLD CIVIL ACTION - LAW JURY TRIAL DEMANDED DEPOSITION OF: HARRY Z. BRILL TAKEN BY: PLAINTIFF BEFORE: JEAN M. DAVIS, REPORTER NOTARY PUBLIC DATE: OCTOBER 6, 2008, 10:15 A.M. PLACE: SMIGEL, ANDERSON & SACKS, LLP 4431 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA APPEARANCES: SMIGEL, ANDERSON & SACKS, LLP BY: PETER M. GOOD, ESQUIRE 4431 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA 17110 717.234.2401 FOR - PLAINTIFF METTE, EVANS AND WOODSIDE BY: MICHAEL D. REED, ESQUIRE 3401 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA 17110 717.232.5000 FOR - DEFENDANT ALSO PRESENT: THOMAS E. VARISH Jean Davis Reporting 140 Peregrine Lane • Hummelstown, PA 17036 (717) 503-6568 • Fax (717) 566-5599 2 I N D E X WITNESS NAME HARRY Z. BRILL BY MR. GOOD EXAMINATION 4 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I N D E X EXHIBITS BRILL EXHIBIT NO. PRODUCED AND MARKED 1 - DEED 11 2 - CONTRACTOR AGREEMENT 19 3 - CHECK STUB 43 4 - VARISH CONSTRUCTION INVOICES 44 5 - INVOICES 51 6 - CONTRACT CHANGE ORDER NO. 1 DATED 6/30/07 58 7 - CHECK 61 8 - REQUEST FOR BOND REDUCTION 64 9 - LETTER 66 10 - DOCUMENT 67 11 - STIPULATION 67 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that sealing and certification are hereby waived and that all objections except as to the form of the question are reserved to the time of trial. HARRY Z. BRILL, called as a witness, being duly sworn, testified as follows: EXAMINATION BY MR. GOOD: Q Good morning, Mr. Brill. A Good morning. Q My name is Peter Good. I represent Varish Construction, and we're here today to take your deposition. A Okay. Q Have you been deposed before? A Yes. Q In what type of matter were you deposed? A I don't remember that. I was deposed, like, once or twice in my life. That's it. Q Was it a civil or a criminal action? Do you remember? A Civil action. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Civil. A Yeah; no criminal. Q Well, I just want to review with you the general ground rules. A Okay. Q You're under oath to answer my questions. A Okay. Q Is there any reason today that you cannot answer my questions truthfully? A With this? Q On anything I ask you. Can you answer my questions? A No; I'm okay. Q And the primary rules are that because the court reporter is taking down what we say on a word-for-word basis, I ask that you please allow me to complete my question before you give your answer. Is that okay? A Okay. Q And at the same time, I will let you complete your answer before I ask you another question. A That is fine. Q Now, if for some reason I ask you a question that you don't understand for any reason, please tell me and I'll try to rephrase it. Okay? 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Okay. Q Another rule is that although it's common in normal conversation to nod our head or shrug our shoulders, in this case, you must make all your answers verbally. Is that okay? A Yeah. Q If you don't answer verbally, I'll remind you to please answer in that respect. A Okay. Q Are you taking any medication today which will affect your memory in any way? A No. MR. GOOD: The usual stipulations? MR. REED: I was going to talk to you about that, because I'm not sure whether that works in the format that the Judge had set up for us. I'm willing to say yes, the usual stipulations, but I'd like him to sign -- MR. GOOD: Okay. Read it and sign it. MR. REED: Read and sign, but, I mean, maybe we should do this off the record. (Discussion held off the record.) MR. GOOD: Q Mr. Brill, please state your name and address for the record. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Harry Brill. My address is 2159 Overhill Road, Allentown, PA 18103. Q Is that your personnel residence or your business address? A No, no. Well, I don't have many businesses, but this business comes to my house. Q Okay. So is that where The Commons at Parker Springs is also located, at the same address? A Yeah. I have a little office in my house. Q Mr. Brill, what business are you in? A I'm not in business; I'm retired, but somehow after I retired, I was offered a piece of ground and -- and I bought it. Q Prior to your retirement, what was your business? A Real estate. I was a builder. Q What location did you build in? A Mostly in the Allentown area -- Allentown, Bethlehem, east. Q What types of projects did you build? A Apartments, town houses, and houses. Q Any commercial construction? A No. Q Immediately before you retired, were you working for your own company or for another 8 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 employer? A For mine. Q And what was the name of your company? A Krawitz & Brill Equity was the ownership. Q You'll have to spell that for her. A K-r-a-w-i-t-z -- my partner -- & Brill Equity. Q Krawitz & Brill Equity? A That's right. Q And that company built apartments, town homes, and houses? A That's right. Q Was that an incorporated entity? A No, Krawitz was the ownership, incorporated was the construction company. Q Okay. I'm not sure I understood that. A He had the construction company which built it for Krawitz & Brill. That was incorporated. Krawitz & Brill was the ownership. Q That was the ownership? A Yeah. Q Okay. What was the name of the construction company? A North Atlantic Construction Company. Q North Atlantic? 9 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yeah. Q And were you an owner of that company? A Huh? Q Were you an owner? A Yes. Q Is North Atlantic Construction still incorporated? A Not anymore. Q Dissolved? A Everything is dissolved. Q How long have you been retired, Mr. Brill? A Three and a half to four years. Q And how long were you in business with Mr. Krawitz? A With Mr. Krawitz? Since 1972. Q So from 1972 until about 2005? A 2005; that's right. That settlement was in 2005. Q I want to talk to you a little bit about The Commons at Parker Springs. When was that corporate entity formed? A I know that this piece of ground was closed on June 21st, '06. Q June 21st, 2006? A Right. 10 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q That's when The Commons at Parker Springs purchased the North Middleton Township site -- A That's right. Q Let me finish my question so she can get that down before you start answering. A Okay. Q I appreciate you're willingness to answer, but it's hard. A That's okay; that's okay. Q So on June 21st of 2006, The Commons at Parker Springs purchased a piece of ground in North Middleton Township? A That's right. Q Do you know when The Commons at Parker Springs was formed? I assume it was formed before that. A It was formed before, and I told him that I don't mind to take over the corporation -- I told the seller, I told the seller, I don't mind to take it over as long as it's clear and free from any, you know, liens. I'm thinking it looks okay. Q And who was the seller? Do you remember? A Unger. Mr. Unger. Q Mr. Unger? A I think so, Unger. Maybe I'm wrong. 11 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GOOD: I'll mark this as Brill 1. (Deed marked as Brill Exhibit No. 1.) BY MR. GOOD: Q Mr. Brill, I'm showing you a document which I've marked as Brill Exhibit No. 1. A Okay. Q Can you identify this document? A I don't remember that, because I had -- my attorney was with me at the closing, so he took care of all the papers. But I see that the date is June 21st. Q And is this the deed that you purchased the property that we're talking about? A Yeah. The Commons at Parker Springs, yeah. Q And you paid $525,000? A That's right. Q Was that financed by a bank? A Yes. Q Can you please tell me the details of that purchase -- how much money you put down? If you remember. A Well, I don't remember exactly. The amount was paid in full. Q Was there bank financing, though? A Yeah. 12 L • 0 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q Who was the bank? A The Commons -- I forget. It's now the Susquehanna, but they merged. MR. REED: Community? THE WITNESS: Pardon me? MR. REED: Was it Community Bank? THE WITNESS: Community Bank. MR. REED: It was Community prior to Susquehanna. BY MR. GOOD: Q Now, The Commons at Parker Springs, Inc., who owns that company? A Me. Q Now, are you the sole owner? A Yes. Q So you own 100 percent of the shares of that company? A Yes. Q Is there a board of directors? A No. Q Are there officers of the corporation? A No. Q So no officers and no board directors? A No. Q And there are no partners? 13 11 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A No. Q Are you married? A Yes. Q That's nice. A I'm married fifty-six years. Q What's your wife's name? A Edna. Q Edna. Is she a partner -- A No, no, no. Q -- in any of your ventures? A No, no, no. Q Does she work? A No. Q The Commons at Parker Springs, it says it is incorporated in Pennsylvania; is that -- A It's incorporated in Pennsylvania. Q -- right? A Yes. Q With an address of Overhill Road, Allentown, which is your home address? A Yes. Q Was The Commons at Parker Springs, Incorporated, formed for the sole purpose of purchasing this piece of property at North Middleton Township? 14 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, because I took it over from Mr. Unger. Q Does The Commons at Parker Springs, Incorporated, own any other property? A No. Q Any other assets? A No. Q And I think I asked you, but I'm not sure if you remembered or not, was the company formed immediately prior to the purchase of the property? A Well, I purchased it a few months before. I mean, I went into an agreement -- Q Okay. A -- subject to get financing and the other stuff. But then we took over the company; yeah. Q When you say the company, do you mean the property? A The property -- there was a closing on The Commons at Parker Springs. Q What was your purpose in buying this property? A The purpose was, number one, to buy it and to resell it. And when -- originally somebody else was supposed to come in with me, and he backed out. Q Who was that? A Mr. Charles Mallios, the broker. 15 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Charlie Mallios? A Yeah. M-a-1-1-i-o-s; Mallios. Q So Mr. Mallios was supposed to be a partner in this venture with you? A Yeah. He told me, why don't we buy it together because I'm in Allentown, and then before the closing, he backed out. So I bought it, and I figured the market was still a little bit better than today, so I decided I'm going to have to build it. Q So when you bought the property, you said you were considering either reselling it or developing it? A That's correct. Q What type of development were you considering putting on this property? A Exactly what I'm doing. This was -- I bought a subdivision with approvals, subject with all the approvals. Q Okay. A It was approved for 30 town houses. Q Thirty town houses? A Yes. That's correct. Q How did you find this property? How did you locate or identify this property? A I came out and I looked at it and I figured, 16 • 9 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 let's do it, you know. I'm retired but, you know, I just have the age. Q Did Mr. Mallios identify the property for you? A Yeah. Yeah. Yeah. Q Okay. Had you worked with Mr. Mallios previously? A No. I met him. Q How did he come to find you? A I met him through a guy that he knew in Allentown who owns a diner. And the guy told me he has a broker if I'm interested to buy something, and I says, I'll take a look, you know. And I looked at it, and I was thinking and thinking and just got into it. I don't know why. Q So after you purchased the property for $525,000, what did you do then next to begin to develop it? A Well, I started right away. And when we closed the property, Tommy was at the closing. Q Mr. Varish? A That's right. He was at the closing. He signed the stipulation against liens. We recorded it. And I told Mr. Varish, go ahead and start working. 17 P 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay, but back up a second. I don't want to get to that just yet. A Okay. Q Did you receive township approvals? A Yes. Q When was that? A After the closing -- well, it was subject to get all the approvals. There was one document from the environmental about crossing the creek. Q Crossing the creek? A Yeah, cross. You know, to put in a pipe in the water which -- which was held up for a few weeks. Q Did you need to obtain additional bank financing to begin the development? A No. When I bought the property, I needed a bond for seven hundred and two thousand five hundred approximately. And Tommy signed the -- Q Hold on. Back up. You needed a bond -- A Yes. Q -- from the township? A For the utilities. No, no, no, no, no. Q You said you had to receive a bond before you began construction? A When you buy a subdivision and you have to 18 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 put in utilities, you can do it two ways. Either you put your own money in a certificate for the township that you're going to put it in, or you issue a bond from the bank. The bank, the same bank that gave me -- that gave me on the lend, issued the bond. Q How much was the bond issued for? A Seven hundred and two and a half thousand dollars. Q Seven hundred -- A Seven hundred and two thousand and five hundred -- I don't know exactly. But it is seven hundred and two, I think five hundred and something. Q And how was that bond secured? A It was given from the bank to the township, a security bond that all the work is going to be done. Q That was primarily for the utilities? A Only the underground, right -- excavation, sewer, water, storm drainage. Q Now, how did you come to know Tom Varish and Varish Construction? A Mr. Mallios -- Mr. Mallios brought me a contractor who the price was $550,000, and I tell him it's okay. And then, like, ten days before closing, he says the guy quits; he don't want: it. So I says okay. 19 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So he went and got me Mr. Varish, and Mr. Varish's offer was six hundred and thirty two dollars or something. MR. GOOD: Okay. Let's mark this, please. (Contractor agreement marked as Brill Exhibit No. 2.) BY MR. GOOD: Q Mr. Brill, I'm going to show you what I marked as Brill Exhibit No. 2. A Okay. Q It's a several-page document, and it's titled "Contractor Agreement." Is this the contract that -- A Yes. Q -- you entered into with Mr. Varish? A I just want to see that. Yes. This is it, $632,454.90. Yes; this is it. Q That was the total amount of the contract? A Yes. Q And this is page 7 of 8 you're looking at? A Yes; page 7. Q And on that page, that's your signature? A Yes, this is my signature. Q And you signed that on June 21st? A Yes, I did. Q Who prepared the contract or agreement, this 20 J • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 document? A Mr. Varish. Q Mr. Varish prepared it? A Yes. Q Are you certain? A I'm not sure. I was given it by the closing agreement, but I saw Mr. Varish hand it to my attorney. He signed it and I signed it. Q Who was your attorney at that closing? A At that time it was Mr. Robert McFadden. Q Robert McFadden? A Yeah, from Allentown. Q Do you know if Mr. McFadden prepared this contract? A I don't know. Q Is that possible? A I don't know, I c ouldn't tell you, because I saw Mr. Varish give him the agreement. I saw that Mr. Varis h was gi ving the agreement. Q And your attorney was present at the closing? A Yes. Q Was Mr. Varish's attorney present, do you know? A No. 21 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q No? A Mr. Varish was by himself. Q By himself. A Mr. Mallios, my attorney, and his son. Q Your attorney and his son? A And his son. Q Okay. Is his son also an attorney? A Yes, he's an attorney. They work together. Q Now, I notice on the contract on the same page, 7 of 8, on top of the final amount there are some pri ces listed for various types of excavation, and it's got prices on a per-cubic-yard basis. Was that to be in addition -- A Yes. Q -- to the price? A Yes. Q Let me finish the question. A It's supposed to be extras. Q These are extras on top of -- A Of the 632. Q If you could tell me, in just plain language, what was to be Mr. Varish's role in this contract? What was he to do? A Everything is specified here. There's a price for every item. He was supposed to do the 22 [7 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 excavation, installation of sewer -- Q Okay. So excavation, installation of sewer -- A Sewer, water, storm drainage. Q Sewer, water, storm drainage. A The pump station, and the sidewalks and curbs, whatever. Q Sidewalks? A Sidewalks and curbs. Q And curbs. A And whatever is specified here. Q Well, I'm asking you to describe in your own words what the contract was for. A The utilities. Q So it wasn't to build the buildings? A Pardon? Q It wasn't to build the town houses, was it? A No, no, no, no, no, no. It had nothing to do with it. Q So his duties were excavation, installation of sewer, water, and storm drainage, a pump station, and sidewalks and curbs. Anything else in a general sense? A What I remember -- we talked verbally -- all those extras, I should be notified and agree. On the 23 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rock excavation, I should agree on it. Q You talked verbally about that? A Yeah. We had lunch a few times. Q Was that part of the contract? A Well, it's in the contract that any extras -- but I don't know if the contract said it or not. Q Okay. A But we talked about it that I should be notified and agree. Q Now, on page 4 of 8 and page 5 of 8, this appears to be a bid proposal from Varish Construction, Incorporated; is that correct? A That's right. Q And this was made a part of the contract as you understand it? A Yeah. This is a break up, you know, of every item. Q Did Parker Springs enter into any other contracts with any entities besides Varish Construction? A No. Q Well, I'm asking you -- my question was not very accurate -- at the time of closing, just Varish, correct? A At the time of closing, this was the first 24 IF-] • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 agreement. Q Now, at later dates, did you enter into contracts with any other entities to do anymore construction work on this project? A On this matter? I mean, on utilities? Q On developing the property in general. A No. Q Now, at some point, did you contract with K&I Construction? A Who? Q K&I Construction. A No. K&I Construction, I worked with them many years. He did my roofing, my aluminum on the apartments. He fix like everything -- you know, town houses. And I asked him -- he wanted to come to this area to be active in aluminum and roofing, and I asked him to help me out to build the town houses and to supervise, you know, what's going on on the job. And he agreed for a price. Q My question was, Mr. Brill, did you enter into a contract -- A No. Q Let me finish my question. Did you enter into a contract with 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 K&I Construction? A No. MR. REED: Object to the form of the question. I think he may be confusing a written contract with a contract. You may need to explain that to him. BY MR. GOOD: Q Mr. Brill, let me finish my question before you answer. Did you have an agreement with K&I that they were to construct and build the town homes on the property? A We had a verbal agreement. But we didn't sign no -- no written agreement. Q So the only written contract that you had for this project was the one you had with Varish Construction? A So far, yeah. Q At a later date, did Parker Springs enter into a contract with PSI? A Yes, we did, after he was off the job. Q Besides PSI and Varish, were there any other written contracts that you signed or entered into for this project? 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Q And it's my understanding, Mr. Brill, that it's your testimony that K&I Construction constructed the town houses for you on a verbal contract? A That's right. Q How much did you pay them to do that? A Seven and a half thousand dollars a unit. Q $7,500 a unit? A $7,500 per unit. Q Mr. Brill, looking at the Contractor Agreement with Varish, on page 1 of the document, Article V, titled "General Provisions" -- A Yeah. Q -- it says, in the second paragraph, "If payment is not made when due, contractor may suspend work on a job until such time as all payments due have been made. A failure to make payments for a period in excess of 20 days from due date of the payment shall be deemed a material breach of this contract." Did I read that correctly? A Yeah. Q What was your understanding of what that paragraph meant? A He wants to get paid on time. Q Did you adhere to those terms? Did you pay 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 him on time? A Well, that's a little bit confusing, but I'll explain it. The money was bonded with the township. Mr. Varish knew about it. When he finish his part of the job, the inspector has to be called and inspect his work. When the township releases --- not necessarily the amount that he's asking for, because they appraise it the way they see it how much is finished -- then they release the money. When they release the money, either they send it to me or directly to him if I allow it. Q Well, tell me, did you allow that to happen, or was the money -- A Yeah. Q Let me finish. -- or was the money sent to you and then to him from you? A The first payment, I was in Florida then. I was sending it to him. Q You were what? A I send it to -- I told the township, the bank, to send it to him. The second and third, I received it to my home, and I sent him the money. Q Mr. Brill, are you aware, does the contract discuss the release of bonds in it? Is there anyplace 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 where in this contract it discusses how that's going to work? A I don't know. Article IV says that the contract shall be paid in the manner and following stages of the improvement that's inspected and accepted by North Middleton Township, the Middleton Authority, and of the securities. Q That refers to the bond? A That was happening. Q Did the extra work, the excavation work that's listed on page 7, was that part of the bond? A No. Q So how was that to be paid? A By me. Q And my question was initially, Mr. Brill, did you make payments in a timely manner? And you said it was confusing, and you didn't really answer. A Mr. Varish called me up, and he -- may I start from the beginning? Q Sure. A I met with Mr. Varish for lunch, and Mr. Varish told me, before he started the job, I'm taking tests. I said, well, let me look, you know. And then he said, I put a backhoe; I don't think you have a lot of rock, and I was very, I was 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 very happy with that. And then suddenly I came up and he had lunch again with Mr. Mallios. Mr. Mallios was the man in between. And then suddenly he says, I have a contract; it's going to cost you between thirty-nine or forty thousand dollars. I said, but you said that you tested, your probes, you know, and you said there's not a lot of rock. He said, well, I called up a guy and it's going to cost between thirty and forty thousand dollars. I says, are you sure? He says yes. So what do you want me to do? I want you to sign the contract. I says, give it to me. He says, no, not yet; I'm not finished yet. And he never gave me that sheet of paper. We had lunch. The next call was that he's hitting rock and he wants to get paid. Q Okay. A Well, the foreman, whose name was Ziggy -- Q Ziggy? Z-i-g-g-y? A Ziggy. Q Okay. A I says, Ziggy is there. He says, yeah, they hit some rock. But I don't know exactly how. So anyway, he was hitting rock, and he came 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and I talk -- I don't remember to who I talked -- and I says, well, how do you measure it? He says, the man who blasted it, you know, with explosive, he gives me the figures. So he said, whatever he tells me, you are going to pay me extra. But he never notified me that he's going to start blasting or he's going to do it. And then I got a call, he wants to meet me, so we met. He came up with his superintendent, or all I remember is he was a retired State trooper. And we met at the diner -- the guy who introduced me to Mr. Mallios, and Mr. Mallios came out. He even sat down. And Tommy told me that he hit a lot of rock and it's going to be, like, close to $100,000. I says, you never notified me; you went ahead and you worked. You know, maybe I stop the job. I mean, I don't have this kind of money, you know. He was just saying whatever. And then he said, there's another problem; I have to start the pump. He said if in four days I don't give him a check, if I don't give the man a down payment, he's going to raise 4 percent. Q Raise the price 4 percent? A Yeah. I didn't ask him who, what, or 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 nothing. I says, you know what? We sat down and I says, so what do you need? I says, look, Tommy, I have a little bit of money. I knew the job was going to have extras, no doubt about it, but I didn't -- I didn't think about figures like this. So I said, now you want a deposit for $30,000. That's not the -- when you do it, the township releases it. In the meantime, on the second and third release of the sewers, he had trouble to release the total amount. And I said, Tommy, why you always shorting it out? He says because -- Q Why do you always what? A Why did Tommy short you with the money? If you put in $80,000 and I give you $64,000. I will give you an example. He said, because till they come, it takes five days; in those five days, I figure I can finish more work. I said, that's not fair. That's not right, because, you know, now you have a bad name and I got a bad name and that Commons is never finished. Okay? However, the inspection fees were so high, because the inspector, whose name is Larry Zimmerman, he was there every day by himself, and he told me that things were getting -- everything is getting done 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wrong, and he will watch it. Here it is done wrong, and he tells him, and he tells his people. And even Mr. Varish was not there all the time; he had his own people. He subbed out the sewers to somebody. I don't know; I didn't get into it. Q Okay. A So he says, because it takes me five days. But whenever the township released, I gave him the money. He knew he has a sheet from the township to me and then the bank sends it to him. When I was here, I wanted to give him my check. However, what happened, so I said to him, now I got to give you $30,000. That's in a bond. But I'll do everything I can to help you ifs you help me out. I know I'm in trouble there with the excavation of the rock. So I went and I says, to whom do I make the check? And then I says, who is the guy who's going to put it in? He says, PCI. Q PSI. A PSI; I'm sorry. So I said, to whom do I make the check? So I said, wait, I'll give you the check for PSI, so I have a record, because he didn't have nothing started. However, he started the driveway for the 33 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 parking lot to the pump station, which was wrong. The inspector told me, no, no, no; it has to be opposite. But anyway, there were other things wrong which he was trying to fix. And this was before a holiday. I think it was Labor Day. I don't remember, but I know it was a holiday. I gave him the check. I sent it out. So this, I think, will help you out. And then I says, what are you talking? He says, you know, you should pay one hundred dollars ninety-five, but I'll tell you what, and we started to negotiate. And I said, can you do better? And Charlie Mallios got into the negotiation. And I says, I gave you already $39,900 and something, a check for the extras, before he came out to the meeting. I'll tell you what, I'll give you $50,000, and it's hurting, but that's it. There's not no more extras, you know? Well, he says, no, it's not enough; it should be $100,000 for everything, but it came up $89 something. I says, look, and he agreed, and I gave him a check. I says, I'm sending you out a check for 50; I got to go and get the money. Q For how much? A $50,000. 34 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. A I have the check. The copy is not with me, but I have it. Q And that was for extras? A Yeah. And the $39 something. Well, his foreman, who I think, to my knowledge -- and I build a lot of jobs in the United States -- he didn't have no knowledge. He started bringing in all kinds of bills. And then one day I arrive on the job and there's a commotion. They're putting in the sewers, starting from the bottom of the hill. Now, I would like to explain to you something. There's a house here across the road. The man who sold me the land has his office there. He lives there. He put in a sewer line right through my property, inside the property. The man who he had as a subcontractor is digging up the pipe. And I came and I said, what are you doing? You got to connect from this pipe. The pitch, it's all calculated when they installed it. It started a commotion. I called up Tommy, and Tommy came out, very excited and this and that. Anyway, we decided that the cheapest way to change that pipeline is to change this piece. 35 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q To change the connector piece? A Yeah, the connection that Mr. Unger did. Well, he was very unsatisfied. You know, I understand; it cost him money, but that's not my problem. I didn't do that mistake, and I'm not going to pay. That bill came back to us three or four times. His foreman keeps sending it back. I told Tommy, I'm sorry. He says, maybe I have insurance; I'm going to check it out, and I still have that bill asking for getting paid. Q How much was that bill for? A $9,000 and something. Q And it was never paid? A I don't have to pay for it. I didn't do that mistake. Q Okay. You're saying the mistake was that the connection was put -- A He started from here -- Q Let me finish. A Yes, sir. Q The connection was put in the wrong place? A No. The pitch was done wrong -- Q The pitch. A -- because it starts from here down. The 36 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inspector was on the job when he came and he explained it, and they talked about the pump. And he says to him, Tommy asked the inspector, what kind of pump do you want? He says, don't ask me; you go to the manufacturer. You bring me the pump in the ground from the manufacturer and I'll approve it. Q Is that what was done? A No, no, no. Then I gave him the deposit, and he ordered the pipe -- Q The pump. A I mean the pump, yeah, and then he started to work on the water mains. Q Now, also, there was a manhole that was put in as well? A The manhole was installed. The end of the pipe was in the manhole. Q Who installed the manhole? A Mr. Unger. Q Now, was that put in correctly? A I don't know, but the inspector told me the manhole was fine, the elevation was fine. The manhole was installed by Mr. Unger. Now, there was nothing wrong with the manhole. Now, maybe the top was a little -- I don't 37 • iJ • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know, but the manhole was installed according to the approval of the township. Q Was that prior to your purchasing the property? A Yeah; the manhole was there. Q So the manhole, you're saying, was crooked? A I don't know. I don't know. Tommy claimed later that he had to replace the manhole maybe because that pipe had to be digged out. Q But the question was, why is that the responsibility of Varish that the manhole was put in the wrong place? A He was given the job, the pipe that the manhole was installed. He's supposed to continue from the manhole and have the pitch down to the pump. Well, for some reason, it started here and from the other manhole that will be installed. He went up to there and decided, the guy -- he didn't put it in; it's a subcontractor who put in the pipe -- and he started digging it up when he came. And he started calling him, the inspector was there, and he said, why are you digging it up? And he gave him all kinds of elevations. He said, it's very easy. Things were done wrong from the beginning. 38 • • E -I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Many mistakes were done. Q You're saying that was a mistake made by Varish or his subcontractor? A The guy who worked for him. Q And why is it that the mistake wasn't Mr. Unger's that the manhole was put in prior to construction beginning? A The pipe was put across the road to the property, but the end of the pipe was a manhole. That's the way he sold it to me. He's supposed to continue from the pipe. You can call the inspector. He'll explain it to you. Q And that was Mr. Zimmerman? A Pardon? Q Mr. Zimmerman? A No. His name is Larry Zimmerman. Q Larry Zimmerman. A He was there. The foreman always come, but he was a constant. Q He was working for the township or for -- A He works for the township. He's the township inspector. Q Okay. A So, you know, I just gave you an example. 39 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Things went wrong, and they want me to pay for everything. And then I used to call up every day to start the water. One day he came, the next day he didn't come. I says, you know -- and I talked to him and I says, Tommy, you have a year; your contract is signed for 12 months. Your contract said finish, and you don't even have 25 percent finished. I can know that there will be a delay; I'll work with you, but, you know, I want to beat the market up there. The markets, there's a lot of money involved. Well, this was not his priority job, probably. I don't know. But things were not running smooth. So I figured, when will they finish that job? I gotta have the pump station to help around the houses to have sewer. Then he says, the water needs a special valve. Well, you had the plans. You knew it. He claimed that the township had a lot of stuff. I agree with him, maybe they did, but his job is to supervise it. I'm supposed to get a finished job. Q Now, Mr. Brill, when you say a "finished job," you mean a finished site preparation, correct? A No, no, no, to finish the sewer and water. 40 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Right, but not the buildings, not the houses. A No, they don't have nothing to do with the houses. Q Right. A He don't have nothing to do with the housing. Q Now, you were based in Allentown all this time? You were living in Allentown, correct? A Yeah, but I'm going wintertime to Florida. Q Who was overseeing the project for you? A K&I had a superintendent. His name was Ziggy. Q Okay. So Ziggy, who was the superintendent of K&I -- A He Q -- A He told him to something, And he said works for K&I. was overseeing was overseeing keep an eye, i to let me know, the project? the town houses. And I f he needs something, or you know? Get it moving. Q Now, did you tell Mr. Varish that K&I was in charge of the job? A Only on the town houses. He's not in charge of the job -- he cannot tell them what to do. He can 41 U • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 tell me that something is wrong -- the water is wrong; the inspector said this is not right, this is not right. But Ziggy couldn't tell his men nothing what to do, and he never did. Q Now, Mr. Brill, who owns K&I Construction? Do you know who the president is? A Konrad Zieja. Q Z-i-e-j-a? A Something like that. Zieja. Q But that's not Ziggy? That's someone else? A No, no, no, Ziggy works for him. Q And do you have any ownership in K&I Construction? A No. I have with him a good relation because he does a lot of work. Q Okay. A And he wanted to open up here with Ziggy so he get his work, roofing and the building. So he says, I'll help you out. Q So K&I Construction, they are based in Allentown as well? A In the Allentown area. Q But their responsibility in this job was to actually build the town houses? A Right. 42 • • 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did K&I Construction have the authority to sign documents on your behalf? A I don't know. I never -- never anybody approached me and told me that. Q Do they have a power of attorney or anything along those lines? A No. Only I can do it. Q Now, I understand for a period of time, Mr. Brill, during this construction, you were sick; is that true? A Yeah. I had my second operation. Q So you were out of commission for about five or six months? You were not available? A No, only for two, three months I'm not available. Q During that time period -- A I was available, but I couldn't -- Q Let me finish. During that time period, who was responsible for giving direction to the contractors when you were out and unavailable for two to three months? A I didn't have no problems. I didn't get any calls. If I get calls, I told Konrad, Konrad, could you do me a favor? You know, call the bank or this or that, you know. 43 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 May I say something? Q Of course. A Okay. Let me tell you what I did, what happened. Konrad told me that Tommy is in need of money and he cannot wait until I come back. So I said, Konrad, could you do me a favor? Could you bill certain bills? Could you pay it? And I'm coming back in two or three weeks and I'll pay you back, and be sure you take a receipt. And then I gave back the money to Konrad. Q Okay. I want to make sure I understand you, Mr. Brill. There were some times where you did tell K&I Contractors to make payment to Varish Construction? A I borrow from him the money. You give your checks, be sure you have a receipt, and when I come back, I'll look over the bills and I'll pay you back, and I did. Q All right. A Not all the bills. Some bills. MR. GOOD: Let's mark this, please. (Check stub marked as Brill Exhibit No. 3.) BY MR. GOOD: Q Mr. Brill, I'm showing you a document which I've marked as Brill Exhibit No. 3, and this appears 44 • • C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to be a check stub under the K&I Contractors check with bills paid to Varish Construction. A This was paid on one of my checks? Q I'm asking you. Can you identify this document? A I cannot remember, but it's worth $39,424, which is for rock, which I told you before. Q Okay. A This is the next one. Q Okay. Well, let me take one more second here and mark another exhibit. A Okay. MR. GOOD: This is actually Brill No. 4. (Varish Construction invoices marked as Brill Exhibit No. 4.) BY MR. GOOD: Q I've given you a multi-page document of Varish Construction invoices, and the document is marked Exhibit No. 4. A Okay. Q Looking at Exhibit No. 3 and No. 4 together, it appears that, for instance, on the first page of Brill No. 4, there's an amount of $39,424. And if I look at Brill No. 3, it appears that that was paid on this check. 45 • C] 0 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Do you see that, sir? A Right. Q So is my understanding correct then that as far as Invoice No. 1 in the amount of $39,424, that was paid by K&I Contractors? A No. It was my check. Q Well, now, I understand that this Exhibit No. 3 is a stub of a check from K&I Contractors, Inc.; is that correct? A Which check? Q Well, the total check is for an amount of $64,000. Do we agree that the second line where it references Bill No. 1, that is in the amount of $39,424? A There's a check that somebody made a copy. I think it was my check. Q No, I'm not asking about that check. I'm asking about the payment of these invoices -- A Yeah. Q -- which is Exhibit No. 4. A Right. Q Isn't it true that they were paid by a check made payable by and under the bank of K&I Contractors, Inc.? A Could be. 46 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Well, it is. A It is? Q Right? A I don't know. I didn't see the check. Q Okay. Well, I'm asking you if this check stub lines up with these invoices? In other words, if Brill No. 3 lines up with Brill No. 4? If you know. A I don't -- I couldn't remember. If I look at my bills. If those bills were paid by K&I, then K&I must give me the receipt so I can pay them back. Q Well, I'm not asking you about paying them back. I'm asking you, isn't it true that K&I paid these bills? A Maybe they did. They probably did. They paid some bills. He did. He did pay. He did pay some bills; there's no question about it. Q Now, looking at Brill No. 4, page 1, this exhibit has Invoice No. 1 and it's dated March 8th, 2007. Do you see that? A Yes. Q And isn't it true that this bill was paid on June 6th, 2007? I'm sorry; June 11th is the date of the check. A I don't know. 47 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. A I don't know. Q Is it true that Invoice No. 1 was not paid in a timely manner? MR. REED: Objection. THE WITNESS: If he send it in time; he might hold it because he thought he was going to get two payments or something. I don't know his combination. BY MR. GOOD: Q But, in fact, looking at these records in front of you, would you agree with me that Invoice No. 1 was paid on or about June 11th, 2007? A I have to look at the check. I don't know. You have those checks. I don't know. He could work on the job, and it takes time, because he had a subcontractor who did the blasting with the dynamite. Tommy was not a man to wait for money, okay? Tommy was not a man that could finance even the pump with his money. I had to get him the check. Q Now, looking at Invoice No. 1 on the first page of Brill No. 4, we'll agree that the bill is addressed to Harry Brill as the bill-to person? Is that what it says? A Harry Brill doesn't have to pay him the debt. 48 • r-] • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. A The company has to pay him the debt. Q Right. A So all his billings were wrong. Q Okay. But my question was, the bill is addressed to Harry Brill, correct? A But never paid with Harry Brill. Q I'm not asking you that question. A Yes, yes. Q Okay. A Yes. Q And bill No. 3, page 2, is billed to K&I Contractors? A Um-hum. Q And No. 4, the next page -- A This is before this. Q Okay. A Which I didn't know, and K&I told me. K&I told me that it was comfortable for him to use him because he had the machinery there to dig the footers and the foundation. Somehow again he billed it to K&I Contractors, and I said I didn't know; I didn't see the bills. He cannot wait for the money. Give him the money, and when I come back, I'll reimburse you. 49 • 11 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Is this the time frame, Mr. Brill, that you were or were you recovered from your sickness by then? A Yeah, well, my operation was March the 22nd, and the doctor -- I was in Florida -- he held me there until May, if I remember. Q Okay. A So when I came back, I says, I give you back the money, because, you know, I have to see it. He has to give me a bill that he paid that bill. Q You're saying, Mr. Brill, that you reimbursed K&I Construction? A Of course. Q Okay. A Now, he didn't tell me everything, and I wasn't in Q Who is he? A K&I. Q Konrad? A He didn't tell me, but he told me I had to pay, I hired, because he had the machinery, it's comfortable for me to let him dig out the footings and do the work, and he agreed. Somehow, I don't know why he send the bills. Everything should be sent to the company, including 50 • C] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 his bill. Harry Brill, Harry Brill doesn't do it; I had a company. If I really want to pay him checks, I wouldn't even have minded, but he keeps sending all these bills wrong. Q Okay. So it's my understanding that because you were ill and in Florida recovering, that you instructed K&I to pay your bills and then you would reimburse K&I; is that correct? A It's correct in a way. I asked him a favor. Q Okay. A I didn't give him orders. I cannot tell him that. Q So then you agree that -- A I agreed that if you pay him and you give me the receipts, I'll pay you back. Q Okay. Let me just finish my question for you. I'm sorry, I appreciate your willingness, but it is difficult for the reporter. So looking again at Brill No. 3, we agree that the first bill of $39,000 that was addressed to Harry Brill was paid by K&I; is that fair? Yes? A Yes. Q By the way, any time you need a break to use the bathroom or stretch your legs -- 51 • 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I want to go home. Q -- just advise me and we'll stop. A That's okay. That's okay. If you agree to continue, I agree. My attorney agrees, I agree. Q Okay. Thank you. MR. GOOD: Let's mark this. (Invoices marked as Brill Exhibit No. 5.) BY MR. GOOD: Q I'm going to show you what we marked, Mr. Brill, as Exhibit No. 5. These are a series of invoices, and I will tell you that these were attached to the complaint that Varish filed. A Okay. Q These are invoices to K&I Construction from Varish. A Right. Q First of all, do you recognize these invoices at all? A I don't remember them. I probably have them filed in Tommy's file. Q Now, starting with the first page, Invoice No. 7, would you agree with me that this is work that was not part of the contract between yourself and Varish? A If it says blasting, the blasting was not 52 • • C? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 included. Q Okay. So this was additional work that was done? A Probably. Q And was the work done? A Yeah. But the thing is that he told me there's no more rock. I mean, if he's going to honor it or not, I cannot tell him. Then I sat with Tommy and with Mr. Mallios in the diner. I gave him the $50,000, and I said, there's no more blasting? He says, I don't think because the water is shallow; it's only three feet. And then those bills came. I don't know if he paid them on it or not, but the agreement was, this was it, the $39,000 and the $50,000. Q Okay. A Now, I cannot tell you if I paid it or not. Q Well, I'll represent to you that these bills have not been paid. They have not been paid. A He had it. Q Right. A It's in the office, you know, the secretary. Q What I'm telling you is that the bills have not been paid yet. A I believe you. 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q All right. And would you agree that these bills are all billed to K&I Construction? A Yeah. MR. REED: Objection. The last two are not. MR. GOOD: Okay. BY MR. GOOD: Q I'm sorry; besides the last two pages, were the other bills -- Invoice No. 7, No. 8, No. 9, No. 10, No. 11, No. 12, No. 13, No. 14, and No. 15 -- all billed to K&I Construction? A I'll look it over. Everything is K&I, K&I, K&I. Q Okay. The last two pages, as your attorney pointed out -- Invoices No. 16 and No. 17 -- they are billed to Harry Brill? A Harry Brill. Yeah. Q And apparently both of those invoices represent invoices that Varish received from Hoover Engineering. A Okay. Q Now, it says they're attached. They're not attached to this document, but do you recall any Hoover Engineering invoices? A Not to me. 54 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. A If it was billed to me the company, it was paid. Q Now, do you know why K&I has not paid these bills to Varish? A They couldn't pay. He would com e to me. When I'm in town, they would say, pay it now. However, I'm just going to tell you one thing: He did contact the blasting m an. Q I'm sorry. I didn't underst and you. A He contact the man who used the dynamite to blast th e rock. The figures with his fig ures don't match. Q Okay. A Okay. There's also -- I'm not going to say anymore. Q Okay. A When it comes the time, I' ll share with you. Q Okay. A I'll share you much more. Okay. Go ahead. Q Now, we agree that looking back at Brill No. 3, that K&I did pay Varish for some of the work it did directly? A I probably app roved it thr ough the telephone. Q Okay. 55 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A May I volunteer one thing to say? Q Of course. A And it's to his benefit, because I don't lie and I don't do that to my wife. There is bills that we owe money to him. Q Okay. A I do not disagree with you. But there's money that is owed to us for damages. When he said to me at the table -- and Mr. Mallios was at the diner, and Ziggy was there, and K&I was there. And his superintendent even said, oh, that rock that was left over the pile, that's going to be hauled out; that's included in the price. He had to haul out all the rock. Well, that work was not. I removed it with the contractors. So Tommy didn't finish a lot of work, and that's why we back-hold a few bills. I don't say I don't. Q Okay. A We probably do owe a lot of bills. That was not even correct with Tommy. But what am I? Why do I have to get stuck with everything? With the blasting, it doesn't match. The footage is riot there. Q Mr. Brill, currently, what is the status of the project? Is it completed? A It's 90-some percent completed. The township 56 • • 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wanted to wait until summertime to pour the final coat on the blacktop. There's two coats. And the one additional pump for the sump pump. And I do not put inside work before the house is not built, because when they build it, they break it up, so. Q Who owns the buildings now? A I own the buildings. Q Does K&I have any ownership? A They have nothing. He's not a partner. He don't have nothing. Q Okay. Have you paid K&I in full for all their work? A For the five houses that are finished. Q Now, you said it was going to be a 30-town home development? Three zero? A There's a total of 30 town homes. Q How many have been built so far? A Only five. Q They have not been sold yet? You own them all? A I own it. I have five -- four units that I put in the plumbing, the footing, the foundation, the slab, and I stopped it because the market got so bad. There's no sense. Q So what is the status now? Are those five 57 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 homes complete? A Five homes are built. I moved in one family, and I couldn't close it because of the liens. So she lived there for awhile for rent. And I have customers who want to buy some lots, but I cannot close it. Q So, Mr. Brill, looking at Brill No. 5, these invoices, do you dispute that the work was actually completed by Mr. Varish? A I cannot give you 100 percent until I go over with K&I and I look at the bills that he gave me. And I have them in the file, the done paid. Q Well, these invoices were sent to you and are dated June of 2007 and July of 2007, so over a year ago. A After he was off the job. Q Do you know if the work was completed? A If the job was completed? Q The work that's listed on these invoices. A I'm going to have to ask the superintendent. It probably is, because he finished up the street. The new -- the guy who came in, PSI, he did the job, and I told him, you finish up for the township everything they wanted. So he has a list of everything. And I had to pay twice. If I paid it, then I 58 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 had to pay him what he didn't finish. MR. GOOD: All right. Let's mark this as No. 6. (Contract Change Order No. 1 dated June 30th, 2007, marked as Brill Exhibit No. 6.) BY MR. GOOD: Q I'm going to show you what has been marked, Mr. Brill, as Exhibit No. 6. The document is titled "Contract Change Order No. 1," and it is dated June 30th, 2007. Do you see that? A What does it say here? The pump station. We didn't get to that. The only change they did is they want it on the final, but she didn't put it in yet. Q Okay. A They want a sump pump water. Q Now, I understand, Mr. Brill, that there was a meeting that you mentioned in the diner in Allentown with Mr. Mallios and Mr. Varish and yourself and the superintendent. Do you remember, was that on or about June 30th of 2007? A In the summertime, yes. Q And isn't it true, sir, that Mr. Varish did present you with this change order but you refused to sign it? Do you remember that? 59 11 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A He said there will be a change. I didn't see no blueprints; I didn't see nothing. He's changing work. Q But you said you were going to send him a check. At that meeting you said you will pa y him -- A But I -- Q Let me finish my question. -- that you'll pay him $50,000 and you'll get him a c heck for the extra work. A No, no, no, no. I paid him $50,000 for rock, to fini sh the rock. Q Okay. A Okay? Now, I gave him the $30,000 as a persona l favor to buy the pump. Q Okay. A And when I called a week later, I f ound out this PC A. Who is PCA? Where is the pump? So when I called PCA he says -- I says -- Q Mr. Brill, it's PSI. A Oh, I'm sorry. When I called PCI - - Q PSI. A -- PSI, where is the pump, he says he just brought me a check from you. I says, well, then I gave yo u the money. He didn't give you the money. That's my money. 60 L -A • 0 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q Okay. A I says, did you change the price of the hundred ninety-six thousand something, four hundred ninety-nine? I don't remember the price. Close to 200. He said no, nothing has changed. Q Okay. A He didn't know about the pump, the additional sump pump that they wanted until the building was done. Q Okay. A Maybe they told him, but he couldn't give me his changes because he didn't give the township no blueprints. PSI is the guy who had to give him the plans. He had to give them to the township. Q So, Mr. Brill, is it my understanding that this change order was for the down payment on the pump from PSI? A Yes, that's correct. Q Okay. A Which I'm not supposed to give it to him. Q Okay. A If it's true that he gave it to me in the diner and I gave him the $30,000, why didn't I sign it? 61 • • 0 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q That's my question for you. Why wouldn't you sign it? A It never was given. Q Is it true that you often refused to sign change orders? A Did he give it to me? Q Well, my question is, is it true that you refused to sign them? A I don't remember. I just told him, Tommy, no more rock extras. Because there was a rumor going around, this guy is loaded; there's money there; let's get it. Q Well, who is the "guy"? A I'm not going to tell you who told me. Q Well, you're saying which guy is loaded, that you're loaded? A The people who worked on the job. Q But who was loaded? A That I'm loaded, so why not take the money? So there's extras; there's bills. MR. GOOD: Let's mark this as No. 7. (Check marked as Brill Exhibit No. 7.) BY MR. GOOD: Q I'm showing you Brill No. 7. This is a check that you wrote, that The Commons at Parker Springs 62 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wrote. That's your handwriting on this check? A Well, PSI did the job. Q Mr. Brill, my question is that this is your check that you wrote, correct? A This is the check that I wrote and send it to him. Q Okay. And the check was made payable to PSI Pumpi ng -- A That's right. Q -- but it was sent to Mr. Varish? A Because he says I hav e to give it to him. Q And thi s was done on September 2nd, 2007? A That's right. Q This is more than two months after Mr. Varish asked you for th e $30,000? A No, no, no, no, no, no, no. When I left the diner, I went home. I organized for him the $50,000 and the 30. Took along; I send him the 30 and I send him the 50. When is the 50 done? On what day? Q I don't know. A I don't remember. I -- I didn't know I'm going to be subpoenaed. Q But we'll agree that the meeting and the change order was on or about June 30th, correct? 63 • C7 C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Sir, this was a personal favor. I'm not supposed to give it to him. Q My question is -- A But I did it. Q Right. Mr. Brill, my question is, the change order date and the meeting in Allentown were all around the June 30th time frame? A Around that. Q And yet the check was written two months later. A What day is this? Q June 30th. A No. Right away after the meeting, I made the check. I went home and I send him the $30,000 and then the 50. Q So can you explain to me why this check was dated September 2nd, not June 30th or July 1st? A It was a holiday, I remember. And he had, I think -- Charlie told me that he went on a holiday. He drove to the company to give him the check. I don't know. I cannot remember why. MR. GOOD: Okay. Let's mark this as No. 8. 64 • • 0 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 (Request for bond reduction marked as Brill Exhibit No. 8.) BY MR. GOOD: Q Mr. Brill, I'm showing you Brill Exhibit No. 8. It's titled "Request for Bond Reduction." A Yes. Q Have you seen this document before? A Yes. Q And the total amount on page 2 is $114,000. Do you agree? $114,640? A Yeah. Whatever the township released, yeah. Q Do you know if the township released this money? A They released it, but I don't remember the amount. Q Isn't it true that you have not made payment to Mr. Varish or Varish Construction on No. 3? A I didn't make? Q Is that true? A I don't remember. Q And you testified earlier, Mr. Brill, that sometimes the township, if you authorized it, would pay the money directly to Mr. Varish -- A One check. Q -- otherwise, it goes to you and then to him? 65 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Because I want to record it in the book. Q Okay. Have you been paid on this request? A Probably I did. Q And you have not paid Mr. Varish, have you? A From whom was that? From him or from the township? Q I'm sorry. I don't understand your question. A This bill was made by him or by the township? Q This bill is from Varish to the township requesting a bond reduction in the amount of $114,640. A May I ask something? Was it approved by the township? Q I'm asking you. A I don't remember. Q You're the owner. A I don't remember. Q A minute ago you testified that you received a payment from this reduction. A I don't remember if it was from him. What I'm trying to tell you, usually he never got paid the full amount because he didn't finish the work that was requested. Q In this case, my question is, have you paid 66 E C • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 any money under this request -- A I don't remember. Q Okay. A I will tell you I don't. Q If I represent to you that Mr. Varish will testify he has not been paid, do you know why he would not have been paid on this request? A I don't know. Q Okay. A I don't know. There was one payment for storm sewer that was not paid -- it was paid five, six months later, but it was not finished. The storm sewer that the manholes went on? MR. GOOD: Okay. Let's mark this as No. 9. (Letter marked as Brill Exhibit No. 9.) BY MR. GOOD: Q Mr. Brill, I'm showing you a document I marked as Brill Exhibit No. 9. It's a letter from your attorney, Mr. McFadden, in Allentown. Actually, it's addressed to me, but it says that, in the very first indented paragraph referencing a previous letter, it says, quote, "However, the contractor should complete its obligation with respect to Bond Reduction No. 3 by obtaining approval and 67 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 acceptance from the municipality and the authority for the items set forth in its request for Bond Reduction No. 3." As a result of that occurrence, do you know if that was the basis as to paying on this request? In other words, the township to pay the money on No. 3? A No, they never paid me. They paid me six months later when the other contractor corrected things -- the two manholes, some elevations of manholes. Q When they paid you six months later, did you remit payment to Mr. Varish? A No. Q Okay. A If this was not paid and was released to me later, I didn't. MR. GOOD: Let's take a five-minute break. We're almost done. (Break.) MR. GOOD: Let's mark these. (Document marked as Brill Exhibit No. 10.) (Stipulation marked as Brill Exhibit No. 11.) BY MR. GOOD: Q Mr. Brill, did you have authority to sign 68 • 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 9 25 K&I checks? A No, never signed. K&I. I never signed a check for Q Okay. A Why would I do that? Q That's my question. A Oh, God, never. Q Now, you mentioned earlier in your deposition that you and Tom Varish executed a stipulation against liens? A Yes, on the closing. Q At the closing? A Yes. Q Who prepared this for you? A McFadden. Q What was the purpose of this stipulation against liens as you understood it? A I understood it that they cannot put a lien. The bank wouldn't give me the line of credit if he wouldn't sign it. Q Okay. A Because they gave money on account of this. Q And this was done on June 21st, 2006? A Yes. At the closing. Q The day of the closing? 69 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A The bank was there and they made him sign it. And he saw it and then he gave the bond. Q Okay. I want to show you now what's been marked as Exhibit No. 11. Ignore my name at the top of that. Ignore that word that says "Peter." Other than that, is this the -- A K&I, yeah. Q Let me finish my question. Is this the stipulation of liens executed between you and K&I? A Yes. Q And this was done on March 26th, 2007? A Right. Q Yes? A Yes; yes. Q And why was that done? A Because he recommended, my lawyer, that K&I is going to be there. He's going to be working. If you don't pay it and you disagree, he might put in a stipulation. He agreed to sign it. Whatever my lawyer told me, I did. Q Now, this refers to a contract entered into between the parties. I'm reading in the, let's see, the fifth paragraph, and in the fifth line it says 70 E • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "under the contract entered into between the parties." Now, what contract is that referring to? A To build the five houses. You have here the houses. Q Now, you said that was a verbal contract or a written contract? A No, no. We always shake hands. Q Shake hands? That was the whole contract? A We always did it with him. I don't have no problems with him. MR. GOOD: Okay. Let me take a two-minute break. We may be done. Let's step outside. (Break.) BY MR. GOOD: Q Mr. Brill, you talked about the manhole that was done by Mr. Unger, and do you know who did the drawings that Mr. Varish was working off of? A I think Hartman did the subdivision. Q H-a-r-t-m-a-n? A Yeah. Hartman did the subdivision. Maybe he did for him there. Q And do you know who set the elevations? A It was done a year or two before. Q It wasn't done by Mr. Varish, was it? 71 .7 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No, no, no, no. Q Did Mr. Varish inform you that when he got to the manho le that it was an incorrect elevation? A Pardon? Q Did Mr. Varish inform you that when he laid the lines and got to the manhole, it was an incorrect A I came back -- Q Let me finish. A I came -- Q Wait, wait, wait. MR. REED: You have to wait until he finishes his question. BY MR. GOOD: Q Did Mr. Varish inform you that when he laid the lines and got to the manhole, it was at an incorrect elevation? A No. Q How did you find out that the manhole had to be torn up and relocated? A I arrived that day on the job, and it was a commotion. So I says, what are you doing? Why don't you continue the sewer? He says, oh, I don't know. And who comes? The inspector. He says, what did you do? Why did you dig up the sewer? He says, it was at 72 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the right elevation. He says start from a point; you know, they talk about elevation. Mr. Mallios was there. Mr. Mallios called Tommy. Tommy came out very upset. He was very upset. Q Who was he upset at? Do you know? A About that it is done wrong. Q What was done wrong? A The sewer line. Why did he dug up the existing sewer line? So he said, look, don't touch that sewer line, but it was already -- that is what he says. You just put it back; it's cheaper to put it back than change. Otherwise, I will make you change the whole line that you put in. Q So move the manhole? A From the manhole down all the way down. He went down, you know, halfway. Q Okay. A So I says, I don't want to get involved in it, because it's not my problem. He was upset, and I don't blame him. Q Okay. But at the time, the inspector, did the inspector indicate what the problem was? A Yeah, yeah, yeah. 73 • 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q What did he indicate? A Oh, he will explain it. I'm not a sewer man. I don't know; he told him the elevation is wrong. If he wouldn't touch that line and he wouldn't start this way or this way. You know what? Mr. Zimmerman is probably available. Q Okay. Your testimony is that it was the Hartman company that set the elevations, not Mr. Varish? A I don't know. Q Okay. A It was a year or two -- I don't know. Q A year or two before you got there? A Pardon? Q A year or two what? A You have to ask the people. I don't know when that line was put in. The line was through the property. Q It wasn't put in by Mr. Varish, was it? A No, no, no, no. That line was put in by Mr. Unger. He shouldn't touch that line; that's what the inspector said. That line was designed for the elevation. If he will dig up that line, then he has to put in all new pipes. 74 C, • U 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 You know, Mr. Zimmerman can testify. He'll tell you exactly the elevation. He knew everything. I didn't get involved. I know he was upset. He was saying, I think I have insurance; I think I have insurance. I says, Tommy, it's not my fault. What do you want from me? Q And you said, Mr. Brill, that K&I had done work for you at Allentown previously? Roofing work? A A lot of work -- roofing work, leaders and gutters, aluminum. Q Had they ever constructed any homes for you previously? A Not for me. Q For anyone else? A Yeah, yeah. He did some -- he built and remodeled homes. Q So on what basis, Mr. Brill, did you hire K&I to do the construction of these homes? A Because I worked with him, and he wanted to open here an office and he had a good man. The superintendent is very knowledgeable, Ziggy. And he told me, I'll give you Ziggy, you know, and maybe he can find over here to open an office so I'll have other work. You know, I'll make aluminum. I says, all right. 75 • r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Do you know how K&I financed the project for them? A Which project? Q This project. A K&I didn't finance this project. Q You paid in advance? A How did he pay? Q Did you pay them in advance for the work they did? A Who pay? For him? Q Did you pay K&I in advance for the work that they performed for you? A The five houses? Q Yes. A No. When he finished up -- the way the bank released percentage-wise, if you put the footing foundation and the slab ready to frame, that's, say, 25 percent; upon the roof, another 25 percent; upon drywall, another percent. Q Well, how did K&I get the funding to do the work without getting paid? Do you know? A Well, he didn't pay for material. Q Did you pay for the materials? A Of course. Q So you put money in K&I's account to let them 76 • • 0 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 buy things? A No, no, no, no, no, no. There was some -- a few bills that he paid from him because there were contractors that couldn't wait. But most of the bills were paid from the company. It's just when I was in Florida and I wasn't here when he got paid and I reimbursed him. Q I understand that there was a bond in place for the project. Did that bond include the buildings or just the site work? A Just the site work. Q So where did the money come from for the buildings? A The bank. I took a construction loan. Q Okay. And was K&I a party to that loan? A No. K&I don't have the money to finance. Q So how was K&I writing checks to Varish and others? A I don't know. Q The loan that you got from the bank for the construction, was that a loan to The Commons at Parker Springs, not to Harry Brill personally? A No. Q Did you provide a personal guaranty for that loan? 77 • 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A Probably, yeah. Q Okay. A How do you get a mortgage without a personnel guaranty? MR. GOOD: That's difficult. That's all I have for you, Mr. Brill. MR. REED: No questions. (The deposition concluded at 11:50 a.m.) 25 78 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 0 25 ERRATA SHEET CAPTION: VARISH CONSTRUCTION, INC., V. THE COMMONS AT PARKER SPRINGS. DATE OF DEPOSITION: OCTOBER 6, 2008 **************************************************** DO NOT MAKE ANY CHANGES IN THE DEPOSITION TRANSCRIPT. IF YOU HAVE CHANGES, LIST THEM BELOW PAGE LINE CORRECTION REASON ------------------------------------------------------ ------------------------------------------------------ ------------------------------------------------------- ------------------------------------------------------- ------------------------------------------------------- ------------------------------------------------------ ------------------------------------------------------- ------------------------------------------------------ ------------------------------------------------------- ------------------------------------------------------- Signature: Date: --------------------------- ---------- HARRY Z. BRILL ****WITHIN 20 DAYS RETURN THIS SIGNED FORM TO: JEAN DAVIS REPORTING 140 PEREGRINE LANE HUMMELSTOWN, PA 17036 79 1 STATE OF PENNSYLVANIA SS. 2 COUNTY OF DAUPHIN 3 I, Jean M. Davis, a Reporter Notary Public, 4 authorized to administer oaths within and for the 5 Commonwealth of Pennsylvania and take depositions in 6 the trial of causes, do hereby certify that the 7 foregoing is the testimony of HARRY Z. BRILL. 8 I further certify that before the taking of 9 said deposition, the witness was duly sworn, that the 10 questions and answers were taken down stenographically 11 by the said reporter, Jean M. Davis, a Reporter Notary 12 Public, approved and agreed to, and afterwards reduced 13 to typewriting under the direction of the said 14 Reporter. 15 I further certify that the proceedings and 16 evidence are contained fully and accurately in the 17 notes by me on the within deposition and that this 18 copy is a correct transcript of the same. 19 In testimony whereof, I have hereunto 20 subscribed my hand and seal this 2nd day of November, 21 2008. 22 23 ,•2L - ?C an M. Davis, Reporter 24 Notary Public My commission expires: 40 25 March 29, 2012 COMMONWEALTH OF PENNSYLVANIA; Nobft Seal Jean M. Davis, Notary Public My Commiasbn texpirsS March 29, 2092 Member, Pennsvlvenia Association of Notaries W O R D V 80 11 • $100,000 [21- 30:15, 33:20 $114,000 [11- 64:9 $1114,64012) - 64:10, 65:12 $30,000161- 31:7, 32:13, 59:13, 60:24, 62:15, 63:15 $39 Ill- 34:5 $39,000 [21- 50:21, 52:15 $39,424141- 44:6, 44:23, 45:4, 45:14 $39,900 (11- 33:14 $50,000 [71 - 33:17, 33:25, 52:10, 52:15, 59:8, 59:10, 62:17 $525,000 (21- 11:15, 16:17 $550,000 (1] - 18:22 $632,454.90 [1] - 19:16 $64,000 [21- 31:15, 45:12 $7,500 [21- 26:8, 26:9 $80,000 [11- 31:15 $89 (11- 33:21 $9,000 (11- 35:13 '06 Ill- 9:23 0 07-750011] - 1:2 1 (151- 3:4, 3:9, 11:1, 11:2, 11:5, 26:11, 45:4, 45:13, 46:17, 46:18, 47:3, 47:12, 47:21, 58:4, 58:9 10 [31- 3:14, 53:9, 67:22 100 [21- 12:16, 57:9 10:15 [11- 1:9 11 (51- 3:4, 3:15, 53:9, 67:23, 69:5 11:50111- 77:9 11th [21- 46:23, 47:12 12121- 39:7, 53:9 13 [1l - 53:9 14111- 53:9 140 (11- 78:24 15 [11- 53:9 16[1]-53:15 1711) - 53:15 17036 Ill- 78:25 17110 121- 1:15, 1:19 18103 [11- 7:2 19111- 3:5 1972 [21- 9:15, 9:16 1st[i1 - 63:19 2 2151- 3:5, 19:6, 19:9, 48:12, 64:9 20 (21- 26:18, 78:22 200 [11- 60:5 2005 (31- 9:16, 9:17, 9:18 2006 (31- 9:24, 10:10, 68:23 2007 [iol - 46:19, 46:22, 47:12, 57:13, 58:5, 58:10, 58:21, 62:12, 69:13 2008 [31- 1:9, 78:4, 79:21 2012111- 79:25 2159(1]-7:1 21st16] - 9:23, 9:24, 10:10, 11:11, 19:23, 68:23 22nd [11- 49:4 25 [31- 39:8, 75:18 26th [11- 69:13 29 [1l - 79:25 2nd 133 - 62:12, 63:18, 79:20 3 3 [141- 3:6, 4322, 43:25, 44:21, 44:24, 45:8, 46:7, 48:12, 50:20, 54:22, 64:17, 66:25, 67:3, 67:7 30 [41- 15:20, 56:16, 62:18 30-town 111- 56:15 30th p1- 58:4, 58:10, 58:21, 62:25, 63:8, 63:13, 63:18 3401[11-1:19 4 4 (151- 2:5, 3:7, 23:10, 30:23, 30:24, 44:13, 44:15, 44:19, 44:21, 44:23, 45:20, 46:7, 46:17, 47:22, 48:15 43111- 3:6 44111- 3:7 4431 (21 - 1:11, 1:15 5 5 [51- 3:8, 23:10, 51:7, 51:10, 57:6 50 [41- 33:23, 62:19, 62:20, 63:16 51 (1l - 3:8 58 [11- 3:10 6 6 [61- 1:9, 3:9, 5 58:5, 58:8, 78:4 6/30/07 [i1- 3:10 61 [1l - 3:11 632 (11- 21:20 64(1]-3:12 66111- 3:13 67 (21- 3:14, 3:15 6th I i I - 46:22 7 7[101-3:11, 19:19, 19:20, 21:10, 28:11 51:22, 53:8, 61:21, 61:22, 61:24 717.232.5000 [i1- 1:20 717.234.2401 (11- 1:16 8191- 3:12, 19:19, 21:10, 23:10, 53:81 63:25, 64:2, 64:5 8th (i1- 46:18 9 915] - 3:13, 53:8, 66:15, 66:16, 66:19 90-some (1] - 55:25 A a.m (1] - 77:9 A.M [1] - 1:9 acceptance 111- 67:1 accepted [11- 28:6 according 111- 37:1 account 121- 68:22, 75:25 accurate [11- 23:23 accurately Ill - 79:16 ACTION (11- 1:3 action [2] - 4:23, 4:25 active [1] - 24:17 addition (11- 21:13 additional [41- 17:14, 52:2, 56:3, 60:7 address 161- 6:24, 7:1, 7:4, 7:8, 13:19, 13:20 addressed (41- 47:23, 48:6, 50:21, 66:21 adhere 111 - 26:25 administer (i1- 79:4 advance [3) - 75:6, 75:8, 75:11 advise [11 - 51:2 affect [11- 6:11 afterwards [11- 79:12 age 111- 16:2 ago (21- 57:14, 65:19 agree 1173 - 22:25, 23:1, 23:9, 39:20, 45:12, 47:11, 47:22, 50:14, 50:20, 51:3, 51:4, 51:22, 53:1, 54:21, 62:24, 64:10 agreed [6] - 24:20, 33:21, 49:23, 50:15, 69:21, 79:12 AGREEMENT [iI - 3:5 agreement [11] - 14:11, 19:5, 19:25, 20:7, 20:18, 20:19, 24:1, 25:11, 25:14, 25:15, 52:14 Agreement 121- 19:12, 26:11 agrees [i1 - 51:4 ahead 131- 16:24, 30:16, 54:20 Allentown (1 s1- 7:2, 7:18, 13:19, 15:6, 16:11, 20:12, 40:8, 40:9, 41:21, 41:22, 58:18, 63:7, 66:20, 74:8 allow 131- 5:16, 27:12, 27:13 almost [11 - 67:19 ALSO [1l - 1:22 aluminum (41- 24:13, 24:17, 74:10, 74:24 amount 1131- 11:22, 19:17, 21:10, 27:8, 31:10, 44:23, 45:4, 45:11, 45:13, 64:9, 64:15, 65:11, 65:23 AND [21- 1:18, 3:3 ANDERSON [21- 1:10, 1:14 answer [10] - 5:6, 5:9, 5:11,5:17,5:21,6:7, 6:8, 10:7, 25:10, 28:17 answering 111- 10:5 answers [21- 6:5, 79:10 ANY 111- 78:6 anyplace (11- 27:25 Anyway 111- 34:24 anyway (21- 29:25, 33:3 apartments [21- 8:10, 24:14 Apartments [11- 7:21 APPEARANCES 111- 1:13 appraise 111 - 27:9 appreciate [21- 10:7, 50:18 approached (1] - 42:4 approval [21- 37:2, 66:25 approvals (41- 15:17, 15:18, 17:4, 17:8 approve (11- 36:7 approved 141- 15:20, 54:24, 65:13, 79:12 area [3] - 7:18, 24:17, 41:22 arrive I i I - 34:10 arrived [11 - 71:21 Article (21 - 26:12, 28:3 assets [i1- 14:5 assume 11] - 10:15 AT 121- 1:3, 78:2 Atlantic [31- 8:24, 8:25, 9:6 attached 131 - 51:11, 53:22, 53:23 attorney [131- 11:9, 20:8, 20:9, 20:20, 20:23, 21:4, 21:5, 21:7, 21:8, 42:5, 51:4, 53:14, 66:20 Authority 111 - 28:7 authority [31- 42:1, 67:1, 67:25 authorized [21- 64:22, 79:4 available 141- 42:13, 42:15, 42:17, 73:6 aware [11- 27:24 awhile [11- 57:4 B back-hold [1] - 55:17 backed [21- 14:23, 15:7 backhoe [11- 28:24 bad (31- 31:20, 31:21, 56:23 bank [171- 11:17, 11:24, 12:1, 17:14, 18:4, 18:14, 27:22, 32:10, 42:24, 45:23, 68:19, 69:1, 75:15, 76:14, 76:20 Bank [2l- 12:6, 12:7 based (21- 40:8, 41:20 basis [4] - 5:16, 21:12, 67:5, 74:17 DAVIS REPORTING PHONE (717)503-6568 FAX (717)566-5599 81 r7 11 5:20, 57:1, 66:24 completed (51- 55:24, 55:25, 57:8, 57:16, 57:17 concluded (11- 77:9 confusing (31- 25:5, 27:2, 28:17 connect (11 - 34:20 connection (31- 35:2, 35:18, 35:22 connector (11- 35:1 considering 121- 15:11, 15:14 constant (11- 38:20 construct (11- 25:12 constructed 12) - 26:3, 74:11 CONSTRUCTION (31- 1:1, 3:7, 78:2 construction (111- 7:22, 8:15, 8:17, 8:22, 17:24, 24:4, 38:7, 42:9, 74:18, 76:14, 76:21 Construction (251 - 4:15, 8:24, 9:6, 18:20, 23:11, 23:20, 24:9, 24:11, 24:12, 25:1, 25:18, 26:3, 41:5, 41:13, 41:20, 42:1, 43:14, 44:2, 44:14, 44:18, 49:12, 51:14, 53:2, 53:10, 64:17 contact (21- 54:9, 54:11 contained (11- 79:16 continue (41- 37:14, 38:11, 51:4, 71:23 contract 1341- 19:12, 19:17, 19:25, 20:14, 21:9, 21:22, 22:13, 23:4, 23:5, 23:6, 23:14, 24:8, 24:22, 24:25, 25:6, 25:16, 25:21, 26:4, 26:19, 27:24, 28:1, 28:4, 29:5, 29:12, 39:6, 39:7, 51:23, 69:23, 70:1, 70:2, 70:5, 70:6, 70:8 CONTRACT (1I - 3:9 Contract 12) - 58:4, 58:9 contractor(41- 18:22, 26:15, 66:23, 67:9 CONTRACTOR 11) - 3:5 Contractor 133 - 19:5, 19:12, 26:10 contractors (33 - EAN DAVIS REPORTING PHONE (717)503-6568 FAX (717)566-5599 bathroom (11- 50:25 beat (11- 39:10 BEFORE (13 - 1:8 began (11- 17:24 begin (21- 16:17, 17:15 beginning 131- 28:19, 37:25, 38:7 behalf (13 - 42:2 BELOW (1I - 78:7 benefit (1I - 55:3 Bethlehem (13 - 7:19 better (21- 15:8, 33:13 between (el - 4:2, 29:4, 29:5, 29:10, 51:23, 69:11, 69:24, 70:1 bid (13 - 23:11 Bill pI-45:13 bill (151- 35:7, 35:10, 35:12, 43:6, 46:21, 47:22, 47:23, 48:5, 48:12, 49:10, 50:1, 50:21, 65:8, 65:10 bill-to 111- 47:23 billed 161- 48:12, 48:22, 53:2, 53:10, 53:15, 54:2 billings (1I - 48:4 bills (281- 34:9, 43:7, 43:17, 43:20, 44:2, 46:9, 46:13, 46:15, 46:16, 48:24, 49:24, 50:5, 50:8, 52:13, 52:18, 52:23, 53:2, 53:8, 54:5, 55:5, 55:17, 55:19, 57:10, 61:20, 76:3, 76:4 bit [4] - 9:19, 15:8, 27:2, 31:3 blacktop (11- 56:2 blame 113 - 72:22 blast (1I - 54:12 blasted 111- 30:3 blasting p1- 30:6, 47:16, 51:25, 52:11, 54:9, 55:21 blueprints 123 - 59:2, 60:13 board 12) - 12:19, 12:23 BOND 111- 3:12 bond (161- 17:17, 17:19, 17:23, 18:3, 18:5,18:6, 18:13, 18:15, 28:8, 28:11, 32:13, 64:1, 65:11, 69:2, 76:8, 76:9 Bond 131- 64:5, 66:25, 67:2 bonded (11- 27:4 bonds (11- 27:25 book (11- 65:1 borrow (11- 43:15 bottom (1I - 34:12 bought (51- 7:13, 15:7, 15:10, 15:16, 17:16 breach (1I - 26:19 break 15) - 23:16, 50:24, 56:5, 67:18, 70:12 Break (23 - 67:20, 70:14 BRILL (61- 1:6, 2:4, 3:3, 4:8, 78:20, 79:7 Brill 18ol - 4:12, 6:24, 7:1, 7:10, 8:4, 8:6, 8:8,8:18,8:19,9:11, 11:1, 11:2, 11:4, 11:5, 19:5,19:8, 19:9, 24:21, 25:9, 26:2, 26:10, 27:24, 28:15, 39:22, 41:5, 42:9, 43:12, 43:22, 43:24, 43:25, 44:13, 44:14, 44:23, 44:24, 46:7, 46:17, 47:22, 47:23, 47:25, 48:6, 48:7, 49:1, 49:11, 50:2, 50:20, 50:22, 51:7, 51:10, 53:16, 53:17, 54:21, 55:23, 57:6, 58:5, 58:8, 58:17, 59:19, 60:16, 61:22, 61:24, 62:3, 63:6, 64:1, 64:4, 64:21, 66:16, 66:18, 66:19, 67:22, 67:23, 67:25, 70:16, 74:7, 74:17, 76:22, 77:6 bring 113 - 36:5 bringing (11- 34:9 broker 12) - 14:25, 16:12 brought (21- 18:21, 59:23 build (111- 7:17, 7:20, 15:9, 22:15, 22:17, 24:18, 25:12, 34:7, 41:24, 56:5, 70:3 builder(11- 7:16 building 121- 41:18, 60:8 buildings 161- 22:15, 40:1, 56:6, 56:7, 76:9, 76:13 built 163 - 8:10, 8:17, 56:4, 56:17, 57:2, 74:15 business (61- 7:4, 7:6, 7:10, 7:11, 7:15, 9:13 businesses (1I - 7:5 buy 171- 14:21, 15:5, 16:12, 17:25, 57:5, 59:14, 76:1 buying (11- 14:19 BY (211- 1:7, 1:14, 1:18, 2:5, 4:11, 11:3, 12:10, 19:7,25:8, 43:23, 44:16, 47:9, 51:8, 53:6, 58:6, 61:23, 64:3, 66:17, 67:24, 70:15, 71:14 C calculated 11) - 34:21 cannot (121- 5:8, 40:25, 43:5, 44:6, 48:24, 50:12, 52:8, 52:17, 57:5, 57:9, 63:23, 68:18 CAPTION 111- 78:2 care [1] - 11:9 case (21- 6:4, 65:25 causes (1) - 79:6 certain (21- 20:5, 43:7 certificate (11- 18:2 certification 11) - 4:4 certify (31- 79:6, 79:8, 79:15 Change (21 - 58:4, 58:9 change 1131- 34:25, 35:1, 58:13, 58:24, 59:1, 60:2, 60:17, 61:5, 62:25, 63:6, 72:14 CHANGE (11- 3:9 changed 111- 60:5 CHANGES (21- 78:6, 78:7 changes (13 - 60:12 changing (1I - 59:2 charge (23 - 40:23, 40:24 Charles (13 - 14:25 Charlie (3) - 15:1, 33:13, 63:21 cheaperll) - 72:13 cheapest 113 - 34:24 CHECK (21- 3:6, 3:11 check (411- 30:22, 32:12, 32:18, 32:22, 33:8, 33:15, 33:22, 34:2, 35:10, 44:1, 44:25, 45:6, 45:8, 45:10, 45:11, 45:15, 45:16, 45:17, 45:22, 46:4, 46:5, 46:24, 47:13, 47:20, 59:5, 59:9, 59:23, 61:24, 62:1, 62:4, 62:5, 62:7, 63:10, 63:15, 63:17, 63:22, 64:24, 68:2 Check (21 - 43:22, 61:22 checks 161- 43:16, 44:3, 47:14, 50:3, 68:1, 76:17 CIVIL 113 - 1:3 civil (11- 4:23 Civil (21- 4:25, 5:1 claimed 123 - 37:7, 39:19 clear (13 - 10:20 Close[ i ] - 60:4 close (31- 30:15, 57:3, 57:5 closed [21- 9:22, 16:20 closing (161- 11:9, 14:17, 15:7, 16:20, 16:22, 17:7, 18:23, 20:6, 20:9, 20:21, 23:23, 23:25, 68:11, 68:12, 68:24, 68:25 coat 111- 56:1 coats I13 - 56:2 combination (13 - 47:8 comfortable 121- 48:19, 49:22 coming (13 - 43:7 commercial (11- 7:22 commission 121 - 42:12, 79:24 common[ i I - 6:2 COMMON (1I - 1:1 Commons (151- 7:7, 9:20, 10:1, 10:10, 10:14, 11:14, 12:2, 12:11, 13:14, 13:22, 14:2, 14:18, 31:21, 61:25, 76:21 COMMONS 121- 1:3, 78:2 Commonwealth (11- 79:5 commotion (31 - 34:11, 34:22, 71:22 Community (43 - 12:4, 12:6, 12:7, 12:8 company (191- 7:25, 8:3, 8:10, 8:15, 8:17, 8:23, 9:2, 12:12, 12:17, 14:8, 14:14, 1415, 48:2, 49:25, 503, 54:2, 63:22, 73:8, 76:5 Company (1) - 8:24 complaint (11- 51:12 complete 141- 5:17, 82 • • 42:20, 55:15, 76:4 Contractors (71- 43:13, 44:1, 45:5, 45:8, 45:23, 48:13, 48:23 contracts (31- 23:19, 24:3, 25:24 conversation [1) - 6:3 COPY (31- 34:2, 45:15, 79:18 corporate [1l - 9:21 corporation (21- 10:18, 12:21 correct [16) - 15:13, 15:22, 23:12, 23:24, 39:24, 40:9, 45:3, 45:9, 48:6, 50:9, 50:10, 55:20, 60:19, 62:4, 62:25, 79:18 corrected 111- 67:9 CORRECTION (1) - 78:8 correctly 121- 26:20, 36:20 cost 131- 29:5, 29:10, 35:4 counsel (11- 4:3 COUNTY [21- 1:1, 79:2 course (41- 43:2, 49:13, 55:2, 75:24 COURT[1) -1:1 court (11- 5:15 credit 11) - 68:19 creek [21-17:9, 17:10 criminal (21- 4:23, 5:2 crooked [1) - 37:6 cross [11- 17:11 crossing [1) - 17:9 Crossing [11- 17:10 cubic 111- 21:12 CUMBERLAND (1) - 1:1 curbs 141- 22:7, 22:9, 22:10, 22:22 customers [1) - 57:4 D damages (11- 55:8 date 15) - 11:10, 25:20, 26:18, 46:23, 63:7 DATE [2) - 1:9, 78:4 dated [51- 46:18, 57:13, 58:4, 58:9, 63:18 DATED [1l - 3:10 dates (11- 24:2 DAUPHIN 111- 79:2 DAVIS [2) - 1:8, 78:23 Davis (31- 79:3, 79:11, 79:23 days (61- 18:23, 26:18, 30:21, 31:17, 32:7 DAYS (1) - 78:22 debt 12l - 47:25, 48:2 decided 13) - 15:9, 34:24, 37:18 deed [11- 11:12 Deed [1) - 11:2 DEED [i 1- 3:4 deemed [1) - 26:19 Defendant [1) - 1:4 DEFENDANT [1) - 1:21 delay [1) - 39:9 DEMANDED [1l - 1:4 deposed 131- 4:18, 4:20, 4:21 deposit (21- 31:6, 36:9 DEPOSITION [3) - 1:6, 78:4, 78:6 deposition (51- 4:16, 68:8, 77:9, 79:9, 79:17 depositions (11- 79:5 describe 11) - 22:12 designed [1) - 73:23 details [1) - 11:19 develop [11- 16:18 developing (21- 15:11, 24:6 development 131- 15:14, 17:15, 56:15 difficult 12) - 50:19, 77:5 dig 14) - 48:20, 49:22, 71:25, 73:24 digged (11- 37:9 digging 131- 34:19, 37:20, 37:22 diner 171- 16:11, 30:11, 52:10, 55:10, 58:18, 60:24, 62:17 direction (21- 42:20, 79:13 directly [31- 27:12, 54:23, 64:23 directors [2) - 12:19, 12:23 disagree 12) - 55:7, 69:20 discuss (11- 27:25 discusses 111 - 28:1 Discussion [1) - 6:22 dispute 111- 57:7 Dissolved [1) - 9:9 dissolved [11- 9:10 DO[11-78:6 doctor [1l - 49:5 DOCUMENT [1) - 3:14 Document (1) - 67:22 document 1141- 11:4, 11:7,17:8,19:11, 20:1, 26:11, 43:24, 44:5, 44:17, 44:18, 53:23, 58:8, 64:7, 66:18 documents (11- 42:2 dollars [6) - 18:8, 19:3,26:7,29:6, 29:10, 33:11 done 1241 - 18:15, 31:25,32:1, 35:23, 36:8, 37:25, 38:1, 52:3, 52:5, 57:11, 60:9, 62:12, 62:20, 67:19, 68:23, 69:13, 69:17, 70:13, 70:17, 70:24, 70:25, 72:7, 72:8, 74:7 doubt [1) - 31:4 down [13) - 5:15, 10:5, 11:20, 30:13, 30:23, 31:1, 35:25, 37:15, 60:17, 72:17, 72:18, 79:10 drainage (41- 18:18, 22:4, 22:5, 22:21 drawings (11- 70:18 driveway (1) - 32:25 drove [1] - 63:22 drywall (11- 75:19 due [31 - 26:15, 26:16, 26:18 dug [11- 72:9 duly [21- 4:9, 79:9 during t11- 42:9 During [21- 42:16, 42:19 duties (11- 22:20 dynamite 121- 47:17, 54:11 E east (11- 7:19 easy [1) - 37:24 Edna 121- 13:7,13:8 Either [11- 18:1 either 12) - 15:11, 27:11 elevation pi - 36:22, 71:3,71:17, 72:1, 72:2, 73:3, 73:24, 74:2 elevations 14) - 37:23, 67:10, 70:23, 73:8 employer [11- 8:1 end [21 - 36:16, 38:9 Engineering (21 - 53:20, 53:24 enter [5] - 23:18, 24:2, 24:21, 24:25, 25:20 entered 14) - 19:14, 25:24, 69:23, 70:1 entities (21- 23:19, 24:3 entity [2) - 8:13, 9:21 environmental [1) - 17:9 Equity 131- 8:4, 8:7, 8:8 ERRATA [11- 78:1 ESQUIRE 121- 1:14, 1:18 estate [11- 7:16 EVANS (1) - 1:18 evidence t11- 79:16 Exactly 11) - 15:16 exactly [41- 11:22, 18:11, 29:24, 74:2 EXAMINATION (21 - 2:3, 4:10 example (21- 31:16, 38:25 excavation [6l - 18:17, 21:11, 22:1, 22:2, 22:20, 23:1, 28:10, 32:15 except (11- 4:5 excess 111- 26:18 excited [1l - 34:23 executed 121- 68:9, 69:10 Exhibit (231- 11:2, 11:5,19:5,19:9, 43:22, 43:25, 44:15, 44:19, 44:21, 45:7, 45:20, 51:7, 51:10, 58:5, 58:8,61:22, 64:2, 64:4, 66:16, 66:19, 67:22, 67:23, 69:5 exhibit (21- 44:11, 46:18 EXHIBIT (1l - 3:3 EXHIBITS (11- 3:2 existing [11 - 72:10 expires (1) - 79:24 explain 161- 25:6, 27:3, 34:13, 38:12, 63:17, 73:2 explained 11) - 36:1 explosive 111 - 30:3 extra pi - 28:10, 30:5, 59:9 extras pol - 21:18, 21:19,22:25, 23:5, 31:4, 33:15, 33:18, 34:4, 61:10, 61:20 eye (1) - 40:19 DAVIS REPORTING PHONE (717)503-6568 F fact (1l - 47:10 failure (11- 26:17 fair i21- 31:19, 50:22 family [i1- 57:2 far 131- 25:19, 45:4, 56:17 fault tl) - 74:6 favor (51- 42:24, 43:6, 50:10, 59:14, 63:1 fees [1) - 31:22 feet (iI - 52:12 few 151- 14:10, 17:12, 23:3, 55:17, 76:3 fifth (21- 69:25 fifty pi - 13:5 fifty-six (1) - 13:5 figure [11- 31:17 figured [3) - 15:7, 15:25, 39:15 figures [41- 30:4, 31:5, 54:12 file (21- 51:20, 57:11 filed 121- 51:12, 51:20 final [31- 21:10, 56:1, 58:14 finance 131- 47:19, 75:5, 76:16 financed (21- 11:17, 75:1 financing [31- 11:24, 14:13, 17:15 fine [3) - 5:22, 36:22 finish [211- 10:4, 21:17, 24:24, 25:9, 27:5, 27:16, 31:18, 35:20, 39:7, 39:15, 39:25, 42:18, 50:17, 55:16, 57:22, 58:1, 59:7, 59:11, 65:23, 69:9, 71:9 finished [11) - 27:10, 29:13, 31:21, 39:8, 39:21, 39:22, 39:23, 56:13, 57:20, 66:12, 75:15 finishes 11) - 71:12 First [11 - 51:17 first [71- 23:25, 27:18, 44:22, 47:21, 50:21, 51:21, 66:22 Five [11- 57:2 five [16) - 17:17, 18:10, 18:12, 31:17, 32:7, 33:11, 42:12, 56:13, 56:18, 56:21, 56:25, 66:11, 67:18, 70:3, 75:13 five-minute 11) - 67:18 fix (21- 24:14, 33:4 FAX (717) 566-5599 83 0 • Florida (51- 27:18, 40:10, 49:5, 50:7, 76:6 following [11- 28:4 follows 11l - 4:9 footage [1l - 55:22 footers (11- 48:20 footing 121- 56:22, 75:16 footings [11- 49:22 FOR 131-1:17, 1:21, 3:12 foregoing l1] - 79:7 foreman 141- 29:19, 34:6, 35:8, 38:19 forget (i1- 12:2 form 121- 4:5, 25:3 FORM [1l - 78:22 format [11- 6:16 formed [61- 9:21, 10:15, 10:17, 13:23, 14:8 forth [11- 67:2 forty (2] - 29:6, 29:10 foundation 131- 48:21, 56:22, 75:17 four (51- 9:12, 30:21, 35:7, 56:21, 60:3 frame [3] - 49:1, 63:8, 75:17 free 111- 10:20 front 11) - 47:11 FRONT (31- 1:11, 1:15,1:19 full [3l - 11:23, 56:11, 65:23 fully [1l - 79:16 funding [1] - 75:20 G General (1] - 26:12 genera[ 13) - 5:4, 22:22, 24:6 given (51- 18:14, 20:6, 37:13, 44:17, 61:3 God [11- 68:7 GOOD (361- 1:14, 2:5, 4:11, 6:13, 6:19, 6:23, 11:1, 11:3, 12:10, 19:4, 19:7, 25:8, 43:21, 43:23, 44:13, 44:16, 47:9, 51:6, 51:8, 53:5, 53:6, 58:2, 58:6, 61:21, 61:23, 63:24, 64:3, 66:14, 66:17, 67:18, 67:21, 67:24, 70:11, 70:15, 71:14, 77:5 gotta 111- 39:16 ground [5] - 5:4, 7:12, 9:22, 10:11, 36:6 guaranty (21- 76:24, 77:4 gutters (11- 74:10 guy [13] - 16:10, 16:11, 18:24, 29:9, 30:11, 32:18, 37:18, 38:4, 57:21, 60:14, 61:11, 61:13, 61:15 H half 131- 9:12, 18:7, 26:7 halfway (11- 72:18 hand [21- 20:7, 79:20 hands (21- 70:7, 70:8 handwriting pl - 62:1 happy 111 - 29:1 hard (11- 10:8 HARRISBURG [31- 1:11, 1:15, 1:19 Harry (111- 7:1, 47:23, 47:25, 48:6, 48:7, 50:2, 50:22, 53:16, 53:17, 76:22 HARRY 151- 1:6, 2:4, 4:8, 78:20, 79:7 Hartman (al - 70:19, 70:21, 73:8 HARTMAN 111- 70:20 haul (11- 55:14 hauled 11) - 55:13 HAVE [11- 78:7 head 111- 6:3 held (31- 6:22, 17:12, 49:5 help 161- 24:18, 32:14, 33:9, 39:16, 41:19 hereby [31- 4:2, 4:4, 79:6 hereunto [1] - 79:19 high [1l - 31:22 hill [1l - 34:12 himself [a] - 21:2, 21:3, 31:24 hire pl - 74:17 hired (11- 49:21 hit 12] - 29:24, 30:14 hitting (21- 29:16, 29:25 Hold Ill - 17:19 hold [21- 47:7, 55:17 holiday 141- 33:5, 33:7,63:20,63:21 home (61- 13:20, 27:23, 51:1, 56:15, 62:17, 63:15 homes (81- 8:11, 25:12, 56:16, 57:1, 57:2, 74:11, 74:16, 74:18 honor hl - 52:7 Hoover [2] - 53:19, 53:24 house 141- 7:6, 7:9, 34:14, 56:4 houses (191- 7:21, 8:11, 15:20,15:21, 22:17, 24:15, 24:18, 26:4, 39:17,40:2, 40:4, 40:18, 40:24, 41:24, 56:13, 70:3, 70:4, 75:13 housing lit - 40:7 hum lit - 48:14 HUMMELSTOWN (11- 78:25 hundred 1121- 17:17, 18:7,18:9,18:10, 18:11, 18:12,19:2, 33:11, 60:3 hurting [11- 33:17 identify [4] - 11:7, 15:24,16:3, 44:4 IF [11 - 78:7 Ignore [21- 69:5, 69:6 ill 121- 49:2, 50:7 immediately 111- 14:9 Immediately t1] - 7:24 improvement (11 28:5 IN 121- 1:1, 78:6 Inc [3l - 12:11,45:8, 45:24 INC 131- 1:1, 1:4, 78:2 include [11 - 76:9 included t2]- 52:1, 55:13 including [11- 49:25 Incorporated [3] - 13:23,14:3, 23:12 incorporated [61- 8:13, 8:14,8:18, 9:7, 13:15,13:16 incorrect 131- 71:3, 71:7, 71:17 indented [11 - 66:22 indicate (21- 72:24, 73:1 inform [31- 71:2, 71:5, 71:15 inside 121- 34:17, 56:4 inspect 111- 27:6 inspected (11- 28:5 inspection 111- 31:22 inspector[141- 27:6, 31:23, 33:2, 36:1, 36:4, 36:21, 37:21, 38:12, 38:23, 41:2, 71:24, 72:23, 72:24, 73:23 installation [31- 22:1, 22:2, 22:20 installed (71- 34:21, 36:16, 36:18, 36:23, 37:1, 37:14, 37:17 instance (11- 44:22 instructed (11- 50:8 insurance 13) - 35:9, 74:5 interested (11- 16:12 introduced [i1- 30:11 Invoice [71- 45:4, 46:18, 47:3, 47:11, 47:21, 51:21, 53:8 INVOICES (21- 3:7, 3:8 Invoices [21- 51:7, 53:15 invoices 113) - 44:14, 44:18, 45:18, 46:6, 51:11, 51:14, 51:17, 53:18, 53:19, 53:24, 57:7, 57:12, 57:18 involved (31- 39:12, 72:20, 74:3 issue 111 - 18:3 issued (21- 18:5, 18:6 item 121- 21:25, 23:17 items [11- 67:2 IV[1] -28:3 J JEAN [21- 1:8, 78:23 Jean (3] - 79:3, 79:11, 79:23 job [251- 24:19, 25:22, 26:16, 27:6, 28:22, 30:17, 31:3, 34:10, 36:1, 37:13, 39:12, 39:15, 39:20. 39:21, 39:23, 40:23, 40:25, 41:23, 47:15, 57:15, 57:17, 57:22, 61:17, 62:2, 71:21 jobs [11- 34:7 Judge (11- 6:16 July 121 - 57:13, 63:19 June (171- 9:23, 9:24, 10:10, 11:11, 19:23, 46:22, 46:23, 47:12, 57:13, 58:4, 58:10, 58:21, 62:25, 63:8, 63:13, 63:18, 68:23 JURY t11- 1:4 K K81(571- 24:9, 24:11, 24:12, 25:1, 25:11, 26:3, 40:12, 40:15, 40:16, 40:22, 41:5, 41:13, 41:20, 42:1, 43:13, 44:1, 45:5, 45:8, 45:23, 46:9, 46:12, 48:12, 48:18, 48:22, 49:12, 49:18, 50:8, 50:9, 50:22, 51:14, 53:2, 53:10, 53:11, 53:12, 54:4, 54:22, 55:11, 56:8, 56:11, 57:10, 68:1, 68:3, 69:8, 69:11, 69:18, 74:7, 74:17, 75:1, 75:5, 75:11, 75:20, 76:15, 76:16, 76:17 K81's t11- 75:25 keep [1l - 40:19 keeps 121- 35:8, 50:4 kind (21- 30:18, 36:4 kinds 121 - 34:9, 37:23 knowledge 12) - 34:7, 34:8 knowledgeable (11- 74:21 Konrad [71- 41:7, 42:23, 43:4, 43:6, 43:10, 49:19 Krawitz (71- 8:4, 8:8, 8:14, 8:18, 8:19, 9:14, 9:15 KRAWITZ (11- 8:6 L Labor 11l - 33:6 laid [21- 71:5, 71:15 land 111- 34:15 LANE [11- 78:24 language (1I - 21:21 Larry 13] - 31:23, 38:17, 38:18 last [31- 53:4, 53:7, 53:14 LAW [11- 1:3 lawyer 121- 69:18, 69:22 leaders (11- 74:9 left t21- 55:12, 62:16 legs [11- 50:25 lend [1l - 18:5 LETTER [11- 3:13 Letter (11- 66:16 lefter[21- 66:19, 66:23 lie [11- 55:3 lien 11l - 68:18 liens [61 - 10:21, 16:23, 57:3, 68:10, 68:17, 69:10 life [1l - 4:22 DAVIS REPORTING PHONE (717)503-6568 FAX (717)566-5599 84 10 • LINE [1) - 78:8 line [1s] - 34:16, 45:12, 68:19, 69:25, 72:9, 72:10, 72:12, 72:15, 73:4, 73:17, 73:20, 73:22, 73:23, 73:24 lines [51- 42:6, 46:6, 46:7, 71:6, 71:16 list [1] - 57:23 LIST 11) - 78:7 listed [31- 21:11, 28:11, 57:18 lived 11 ] - 57:4 lives Ill - 34:16 living Ill - 40:9 LLP 121- 1:10, 1:14 loaded 151- 61:11, 61:15, 61:16, 61:18, 61:19 loan [5] - 76:14, 76:15, 76:20, 76:21, 76:25 locate (11- 15:24 located 111- 7:8 location 111- 7:17 look [111- 16:13, 28:23, 31:2, 33:21, 43:17, 44:24, 46:8, 47:13, 53:11, 57:10, 72:11 looked 121- 15:25, 16:14 looking 18) - 19:19, 26:10, 46:17, 47:10, 47:21, 50:20, 54:21, 57:6 Looking 111- 44:21 looks [11- 10:21 lunch [41- 23:3, 28:21, 29:2, 29:15 M machinery [21- 48:20, 49:21 mains [11- 36:13 MAKE 111- 78:6 MALLIOS 111- 15:2 Mallios [19) - 14:25, 15:1, 15:2,15:3 , 16:3, 16:6, 18:21, 21:4, 29:3, 30:12, 33:13, 52:9, 55:10, 58:19, 72:3 man [11) - 29:3, 30:2, 30:22, 34:15, 34:18, 47:18, 47:19, 54:9, 54:11, 73:2, 74:20 manhole [241- 36:14, 36:16, 36:17, 36:18, 36:22, 36:24, 37:1, 37:5, 37:6, 37:8, 37:11, 37:14, 37:15, 37:17, 38:6, 38:9, 70:16, 71:3, 71:6, 71:16, 71:19, 72:16, 72:17 manholes [31- 66:13, 67:10, 67:11 manner [31- 28:4, 28:16, 47:4 manufacturer (21- 36:5, 36:6 March [41- 46:18, 49:4, 69:13, 79:25 markllo)- 11:1, 19:4, 43:21, 44:11, 51:6, 58:2, 61:21, 63:25, 66:15, 67:21 MARKED 11) - 3:3 marked [191- 11:2, 11:5, 19:5, 19:9, 43:22, 43:25, 44:14, 44:19, 51:7, 51:9, 58:5, 58:7, 61:22, 64:1, 66:16, 66:19, 67:22, 67:23, 69:4 market [a] - 15:8, 39:11, 56:23 markets [1) - 39:11 married [2) - 13:2, 13:5 match [2) - 54:13, 55:22 material [21- 26:19, 75:22 materials [11- 75:23 matter 12) - 4:20, 24:5 McFadden [51- 20:10, 20:11, 20:13, 66:20, 68:15 mean [al - 6:20, 14:11, 14:15, 24:5, 30:17, 36:12, 39:23, 52:7 meantlll - 26:23 meantime [1] - 31:8 measure [1] - 30:2 medication [1] - 6:10 meet [11- 30:8 meeting [61- 33:16, 58:18, 59:5, 62:24, 63:7, 63:14 memory [11- 6:11 men [1) - 41:3 mentioned [2] - 58:18, 68:8 merged 111- 12:3 met [s1- 16:8, 16:10, 28:21, 30:9, 30:11 METTE [1 ] - 1:18 MICHAEL 11) - 1:18 Middleton [51- 10:2, 10:12,13:24, 28:6 might [21- 47:6, 69:20 mind [2) - 10:18, 10:19 minded 11] 50:4 mine [11- 8:2 minute [31- 65:19, 67:18,70:12 mistake [sl - 35:5, 35:16, 35:17, 38:2, 38:5 mistakes [1] - 38:1 MLD [11- 1:2 money 1381- 11:20, 18:2, 27:4,27:10, 27:11, 27:14, 27:16, 27:23, 30:18, 31:3, 31:14, 32:9, 33:23, 35:4,39:11, 43:5, 43:10,43:15, 47:18, 47:20, 48:24, 48:25, 49:9,55:5,55:8, 59:24, 59:25,61:11, 61:19, 64:13, 64:23, 66:1, 67:6, 68:22, 75:25, 76:12, 76:16 months [10] - 14:10, 39:7, 42:13, 42:14, 42:21, 62:14,63:10, 66:12,67:9,67:12 morning 12) - 4:12, 4:13 mortgage [1) - 77:3 most [1) - 76:4 Mostly [1] - 7:18 move 11) - 72:16 moved 111- 57:2 moving 111- 40:20 MR [451- 2:5, 4:11, 6:13, 6:14, 6:19, 6:20, 6:23, 11:1, 11:3, 12:4, 12:6, 12:8, 12:10, 19:4, 19:7, 25:3, 25:8, 43:21, 43:23,44:13, 44:16,47:5,47:9, 51:6, 51:8, 53:4, 53:5, 53:6, 58:2, 58:6,61:21, 61:23, 63:24, 64:3, 66:14, 66:17, 67:18, 67:21, 67:24, 70:11, 70:15, 71:12, 71:14, 77:5, 77:7 multi [1] - 44:17 multi-page 111- 44:17 municipality [1] - 67:1 must 12) - 6:4, 46:10 N NAME (11- 2:3 name 112) - 4:14, 6:24, 8:3, 8:22,13:6, 29:19, 31:20, 31:21, 31:23, 38:17, 40:12, 69:5 necessarily 11) - 27:8 need [5] - 17:14, 25:6, 31:2, 43:4, 50:24 needed 121- 17:16, 17:19 needs [21 - 39:17, 40:19 negotiate 111- 33:12 negotiation [1] - 33:14 never 1153 - 29:14, 30:5, 30:16, 31:21, 35:14, 41:4,42:3, 48:7,61:3, 65:22, 67:8, 68:2,68:7 new 121- 57:21, 73:25 next [5] - 16:17, 29:16, 39:4, 44:9, 48:15 nice [1)- 13:4 nine 12] - 29:5, 60:4 ninety [31- 33:11, 60:3, 60:4 ninety-five [11- 33:11 ninety-nine 11] - 60:4 ninety-six 111- 60:3 NO [31- 1:2, 3:3, 3:9 normal [11- 6:3 North p1- 8:24, 8:25, 9:6,10:2,10:12, 13:24, 28:6 NORTH 131 - 1:11, 1:15,119 NOT [1] - 78:6 NOTARY 111- 1:8 Notary [3] - 79:3, 79:11, 79:24 notes 111- 79:17 nothing [111- 22:18, 31:1, 32:24, 36:23, 40:3, 40:6, 41:3, 56:9, 56:10, 59:2, 60:5 notice [11- 21:9 notified 141- 22:25, 23:9, 30:5, 30:16 November [11- 79:20 number Ill - 14:21 0 oath [11 - 5:6 oaths [11- 79:4 Object 111- 25:3 Objection [21 - 47:5, 53:4 objections [1] - 4:5 obligation 111- 66:24 obtain [11- 17:14 obtaining [11- 66:25 occurrence [1) - 67:4 OCTOBER [21- 1:9, 78:4 OF [5] - 1:1, 1:6, 78:4, 79:1, 79:2 offer [11- 19:2 offered 11] - 7:12 office [51- 7:9, 34:15, 52:22, 74:20, 74:23 officers [2) - 12:21, 12:23 often Ill - 61:4 once [11- 4:22 One [21 - 39:4, 64:24 one [131- 14:21, 17:8, 25:17, 33:11, 34:10, 44:3,44:9,44:10, 54:8, 55:1, 56:2, 57:2, 66:10 open [3] - 41:17, 74:20, 74:23 operation [21- 42:11, 49:4 opposite 111- 33:2 ORDER 11] - 3:9 Order 121- 58:4, 58:9 order [41- 58:24, 60:17,62:25,63:6 ordered [1] - 36:10 orders [2) - 50:12, 61:5 organized [11- 62:17 originally 111- 14:22 Otherwise [11 - 72:14 otherwise [1] - 64:25 outside 111- 70:13 Overhill [2) - 7:1, 13:19 overseeing 131- 40:11, 40:17,40:18 owe [21- 55:5, 55:19 owed [11- 55:8 own 191- 7:25, 12:16, 14:3,18:2,22:12, 32:4, 56:7, 56:19, 56:21 owner 141- 9:2, 9:4, 12:14, 65:17 ownership [61- 8:4, 8:14,8:19,8:20, 41:12, 56:8 owns [41- 12:12, 16:11, 41:5, 56:6 P PA [21- 7:2, 78:25 PAGE 111 - 78:8 page [171- 19:11, 19:19, 19:20,19:21, DAVIS REPORTING PHONE (717)503-6568 FAX (717)566-5599 85 0 • 21:10, 23:10, 26:11, 28:11, 44:17, 44:22, 46:17, 47:22, 48:12, 48:15, 51:21, 64:9 pages [21- 53:7, 53:14 paid pol - 11:15, 11:23, 26:24, 28:4, 28:13, 29:17, 35:11, 35:14, 44:2, 44:3, 44:24, 45:5, 45:22, 46:9, 46:12, 46:15, 46:21, 47:3, 47:12, 48:7, 49:10, 50:22, 52:13, 52:17, 52:19, 52:24, 54:3, 54:4, 56:11, 57:11, 57:25, 59:10, 65:2, 65:4, 65:22, 65:25, 66:6, 66:7, 66:11, 67:8, 67:12, 67:16, 75:6, 75:21, 76:3, 76:5, 76:6 paper 111- 29:14 papers Ill- 11:10 paragraph 141- 26:14, 26:23, 66:22, 69:25 Pardon [51- 12:5, 22:16, 38:15, 71:4, 73:14 Parker 115) - 7:8, 9:20, 10:1, 10:11, 10:14, 11:14, 12:11, 13:14, 13:22, 14:2, 14:18, 23:18, 25:20, 61:25, 76:22 PARKER [2) - 1:3, 78:3 parking l1) - 33:1 part 153 - 23:4, 23:14, 27:5, 28:11, 51:23 parties 131- 4:3, 69:24, 70:1 partner 14) - 8:6, 13:8, 15:3, 56:9 partners Ill - 12:25 party I1) - 76:15 pay [361- 26:6, 26:25, 30:5, 33:11, 35:6, 35:15, 39:1, 43:7, 43:8, 43:17, 46:101 46:15, 47:25, 48:2, 49:21, 50:3, 50:8, 50:15, 50:16, 54:6, 54:7, 54:22, 57:25, 58:1, 59:5, 59:8, 64:23, 67:6, 69:201 75:7, 75:8, 75:10, 75:11, 75:22, 75:23 payable [21- 45:23, 62:7 paying 121- 46:11, 67:5 payment l11) - 26:15, 26:18, 27:18, 30:23, 43:13, 45:18, 60:17, 64:16, 65:20, 66:10, 67:13 payments [41- 26:16, 26:17, 28:16, 47:8 PCA 131 - 59:17, 59:18 PCI (21- 32:19, 59:20 PENNSYLVANIA [sl - 1:1,1:11,1:15,1:19, 79:1 Pennsylvania [31- 13:15, 13:16, 79:5 people [41- 32:2, 32:4, 61:17, 73:16 per (2) - 21:12, 26:9 per-cubic-yard I1) - 21:12 percent [91 - 12:16, 30:23, 30:24, 39:8, 55:25, 57:9, 75:18, 75:19 percentage [1l - 75:16 percentage-wise I1) - 75:16 PEREGRINE l1) - 78:24 performed [1) - 75:12 period 141- 26:17, 42:8, 42:16, 42:19 person 11) - 47:23 personal 131- 59:14, 63:1, 76:24 personally (1I - 76:22 personnel 12) - 7:3, 77:3 Peter [21- 4:14, 69:6 PETER Ill - 1:14 piece (6] - 7:12, 9:22, 10:11, 13:24, 34:25, 35:1 pile I1) - 55:12 pipe till - 17:11, 34:19, 34:20, 36:10, 36:17, 37:9, 37:13, 37:19, 38:8, 38:9, 38:11 pipeline Ill - 34:25 pipes Ill - 73:25 pitch [41- 34:21, 35:23, 35:24, 37:15 PLACE [1l - 1:10 place [31- 35:22, 37:12, 76:8 plain Ill - 21:21 Plaintiff [1) - 1:1 PLAINTIFF (21- 1:7, 1:17 plans 121 - 39:18, 60:14 PLEAS (1I - 1:1 plumbing 11) - 56:22 point [21- 24:8, 72:1 pointed [11 - 53:14 possible I1) - 20:16 pourpl - 56:1 power 111- 42:5 preparation 111- 39:23 prepared [41- 19:25, 20:3, 20:13, 68:14 PRESENT 111- 1:22 present 131- 20:20, 20:23, 58:24 president 111- 41:6 previous I11- 66:22 previously 131- 16:7, 74:8, 74:12 price (81- 18:22, 21:15, 21:25, 24:20, 30:24, 55:13, 60:2, 60:4 prices [21- 21:11, 21:12 primarily Ill - 18:16 primary Ill - 5:14 priority [11- 39:12 probes [1l - 29:8 problem [41- 30:20, 35:5, 72:21, 72:24 problems [2) - 42:22, 70:10 proceedings [11- 79:15 PRODUCED [1I - 3:3 project 1111- 24:4, 25:17, 25:25, 40:11, 40:17, 55:24, 75:1, 75:3, 75:4, 75:5, 76:9 projects [1l - 7:20 property [22] - 11:13, 13:24,14:3, 14:9, 14:16, 14:17, 14:20, 15:10, 15:15, 15:23, 15:24, 16:3, 16:16, 16:20, 17:16, 24:6, 25:13, 34:17, 37:4, 38:9, 73:18 proposal [1I - 23:11 provide [1] - 76:24 Provisions (11- 26:12 PSI 1131- 25:21, 25:23, 32:20, 32:21, 32:23, 57:21, 59:19, 59:21, 59:22, 60:14, 60:18, 62:2, 62:8 PUBLIC I1) - 1:8 Public [31- 79:3, 79:12, 79:24 PUMP (221- 22:6, 22:21, 30:21, 33:1, 36:2, 36:4, 36:6, 36:11, 36:12, 37:15, 39:16, 47:19, 56:3, 58:12, 58:16, 59:14, 59:17, 59:22, 60:7, 60:8, 60:17 Pumping [11- 62:8 purchase 121 - 11:20, 14:9 purchased 151 - 10:2, 10:11, 11:12, 14:10, 16:16 purchasing [21- 13:24, 37:3 purpose 141 - 13:23, 14:19, 14:21, 68:16 put [32) - 11:20, 17:11, 18:1, 18:2, 18:3, 28:24, 31:15, 32:19, 34:16, 35:18, 35:22, 36:14, 36:20, 37:11, 37:18, 37:19, 38:6, 38:8, 56:3, 56:22, 58:14, 68:18, 69:20, 72:13, 72:15, 73:17, 73:19, 73:20, 73:25, 75:16, 75:25 putting 12) - 15:15, 34:11 record (51- 6:21, 6:22, 6:25, 32:23, 65:1 recorded (11- 16:23 records 11) - 47:10 recovered (11- 49:2 recovering I11- 50:7 reduced [TI - 79:12 reduction (31- 64:1, 65:11, 65:20 REDUCTION [1l - 3:12 Reduction 133 - 64:5, 66:25, 67:2 REED 111) - 1:18, 6:14, 6:20, 12:4, 12:6, 12:8, 25:3, 47:5, 53:4, 71:12, 77:7 references I1) - 45:13 referencing [11 - 66:22 referring (1) - 70:2 refers 12) - 28:8, 69:23 refused (31- 58:24, 61:4, 61:8 reimburse (21- 48:25, 50:9 reimbursed [21- 49:11, 76:7 relation Ill - 41:14 release [51 - 27:10, 27:11, 27:25, 31:9, 31:10 released [6) - 32:8, 64:11, 64:12, 64:14, 67:16, 75:16 releases [21- 27:7, 31:8 relocated Ill - 71:20 remember (271 - 4:21, 4:24, 10:22, 11:8, 11:21, 11:22, 22:24, 30:1, 30:10, 33:6, 44:6, 46:8, 49:6, 51:19, 58:20, 58:25, 60:4, 61:9, 62:22, 63:20, 63:23, 64:14, 64:20, 65:16, 65:18, 65:21, 66:2 remembered Ill - 14:8 remind Ill - 6:7 remit [1) - 67:13 remodeled (1l - 74:16 removed Ill - 55:15 rent Ill - 57:4 rephrase [11- 5:25 replace 11) - 37:8 reporter (3) - 5:15, 50:19, 79:11 Reporter [4] - 79:3, 79:11, 79:14, 79:23 REPORTER Ill - 1:8 REPORTING 111- 78:23 Q questions 151- 5:6, 5:9, 5:12, 77:7, 79:10 quits [1I - 18:24 quote [1) - 66:23 R raise (1) - 30:23 Raise I1) - 30:24 read I11- 26:20 Read (21- 6:19, 6:20 reading [1) - 69:24 ready III - 75:17 Real [1) - 7:16 really (21- 28:17, 50:3 REASON Ill - 78:8 reason [41- 5:8, 5:23, 5:24, 37:16 receipt [31- 43:9, 43:16, 46:10 receipts I1) - 50:16 receive 121- 17:4, 17:23 received 131- 27:23, 53:19, 65:19 recognize [1I - 51:17 recommended [11- 69:18 DAVIS REPORTING PHONE (717)503-6568 FAX (717)566-5599 86 101 represent [41- 4:14, 52:18, 53:19, 66:5 Request [21- 64:1, 64:5 REQUEST [il - 3:12 request (51- 65:2, 66:1, 66:7, 67:2, 67:5 requested Ill - 65:24 requesting Ill - 65:11 resell 11) - 14:22 reselling Ill - 15:11 reserved 111- 4:6 residence Ill - 7:3 respect [2l - 6:8, 66:24 respective 111- 4:3 responsibility [21- 37:11, 41:23 responsible [1l - 42:19 result 111- 67:4 retired (61- 7:11, 7:12, 7:24, 9:11, 16:1, 30:10 retirement 11) - 7:14 RETURN [1l - 78:22 review I1 ] - 5:3 road [2l - 34:14, 38:8 Road (21- 7:2, 13:19 Robert [2] - 20:10, 20:11 rock [161- 23:1, 28:25, 29:9, 29:16, 29:24, 29:25, 30:14, 32:16, 44:7, 52:7, 54:12, 55:12, 55:14, 59:10, 59:11, 61:10 role [1] - 21:22 roof 111- 75:18 roofing [41- 24:13, 24:17, 41:18, 74:9 Roofing I1[ - 74:8 rule Ill - 6:2 rules [21- 5:4, 5:14 rumor [1l - 61:10 running 11l - 39:13 S SACKS [21- 1:10,1:14 sat 131- 30:12,31:1, 52:9 saw 141- 20:7, 20:18, 69:2 seal 111- 79:20 sealing Ill - 4:3 second (71- 17:1, 26:14, 27:22, 31:8, 42:11, 44:10, 45:12 secretary 11l - 52:22 secured 11) - 18:13 securities [11- 28:7 security 11l - 18:15 see [121- 11:10, 19:15, 27:9, 45:1, 46:4, 46:19, 48:23, 49:9, 58:11, 59:1, 59:2, 69:24 seller [31- 10:19, 10:22 send [10] - 27:11, 27:21, 27:22, 47:6, 49:24, 59:4, 62:5, 62:18, 63:15 sending [41- 27:19, 33:22, 35:8, 50:4 sends 111- 32:10 sense [2l - 22:23, 56:24 sent [61- 27:16, 27:23, 33:8, 49:25, 57:12, 62:10 September 121- 62:12, 63:18 series [11- 51:10 set [41- 6:16, 67:2, 70:23, 73:8 settlement [l] - 9:17 Seven [41- 18:7, 18:9, 18:10, 26:7 seven 121- 17:17, 18:11 several I11- 19:11 several-page 111- 19:11 Sewer 121 - 22:4, 22:5 sewer p5l - 18:18, 22:1, 22:3, 22:21, 34:16, 39:17, 39:25, 66:11, 66:13, 71:23, 71:25, 72:9, 72:10, 72:11, 73:2 sewers [3l - 31:9, 32:4, 34:11 shake 11l - 70:7 Shake [1] - 70:8 shall [2l - 26:18, 28:4 shallow Ill - 52:12 share [21- 54:18, 54:20 shares [1I - 12:16 SHEET Ill - 78:1 sheet [21- 29:14, 32:9 short [1] - 31:14 shorting Ill - 31:11 shoulders Ill - 6:4 show [4] - 19:8, 51:9, 58:7, 69:4 showing 151- 11:4, 43:24, 61:24, 64:4, 66:18 shrug [11- 6:3 sick 111 - 42:9 sickness [1] - 49:2 sidewalks 121- 22:6, 22:22 Sidewalks [21 - 22:8, 22:9 sign (l 5] - 6:18, 6:19, 6:20, 25:15, 29:12, 42:2, 58:25, 60:24, 61:2, 61:4, 61:8, 67:25, 68:20, 69:1, 69:21 signature [21- 19:21, 19:22 Signature: Date [1] - 78:19 signed [91 - 16:23, 17:18, 19:23, 20:8, 25:24, 39:6, 68:2 SIGNED [1] - 78:22 site [4l - 10:2, 39:23, 76:10, 76:11 six 171- 13:5, 19:2, 42:13, 60:3, 66:12, 67:9, 67:12 slab [21- 56:23, 75:17 SMIGEL 121- 1:10, 1:14 smooth (1 [ - 39:14 sold 13) - 34:15, 38:10, 56:19 sole 121- 12:14, 13:23 someone 111- 41:10 sometimes [1l - 64:22 son 141 - 21:4, 21:5, 21:6, 21:7 sorry 181- 32:21, 35:9, 46:23, 50:18, 53:7, 54:10, 59:20, 65:7 special 111- 39:18 specified [21- 21:24, 22:11 spell 111- 8:5 SPRINGS 121 - 1:4, 78:3 Springs 1151- 7:8, 9:20,10:1, 10:11, 10:15, 11:14, 12:11, 13:14, 13:22, 14:2, 14:18, 23:18, 25:20, 61:25, 76:22 SS Ill - 79:1 stages [1] - 28:5 start [81- 10:5, 16:24, 28:19, 30:6, 30:21, 39:3, 72:1, 73:4 started 1121- 16:19, 28:22, 32:24, 32:25, 33:12, 34:8, 34:22, 35:19, 36:12, 37:16, 37:20, 37:21 starting [21- 34:12, 51:21 starts [11- 35:25 State [i 1 30:10 state [1l - 6:24 STATE [?] - 79:1 States I11- 34:8 station [51- 22:6, 22:21, 33:1, 39:16, 58:12 status 121 - 55:23, 56:25 stenographically [11- 79:10 step [11- 70:13 sti11131 - 9:6, 15:8, 35:10 stipulated [11- 4:2 stipulation 151- 16:23, 68:9, 68:16, 69:10, 69:21 Stipulation 111 - 67:23 STIPULATION [21- 3:15, 4:1 stipulations [21- 6:13, 6:18 stop [21- 30:17, 51:2 stopped [11- 56:23 storm [61 - 18:18, 22:4, 22:5, 22:21, 66:11, 66:12 street [1] - 57:20 STREET [3] - 1:11, 1:15, 1:19 stretch I1[ - 50:25 STUB [1l - 3:6 stub [4] - 43:22, 44:1, 45:8, 46:6 stuck [11- 55:21 stuff 121 - 14:14, 39:19 subbed [11- 32:4 subcontractor [41- 34:18, 37:19, 38:3, 47:16 subdivision [41 - 15:17, 17:25, 70:19, 70:21 subject [31- 14:13, 15:17, 17:7 subpoenaed[1l- 62:23 subscribed 111- 79:20 suddenly [21- 29:2, 29:4 summertime [21- 56:1, 58:22 sump 131- 56:3, 58:16, 60:8 superintendent [71- 30:9, 40:12, 40:14, 55:11, 57:19, 58:20, 74:21 supervise 121- 24:19, 39:21 supposed 191- 14:23, 15:3, 21:18, 21:25, 37:14, 38:10, 39:21, 60:21, 63:2 suspend 11l - 26:15 Susquehanna [21- 12:3, 12:9 sworn [21- 4:9, 79:9 T table [1l - 55:9 TAKEN [11- 1:7 telephone [11- 54:24 ten [1l - 18:23 terms [1] - 26:25 tested I11- 29:7 testified [31- 4:9, 64:21, 65:19 testify [2] - 66:6, 74:1 testimony [41- 26:3, 73:7, 79:7, 79:19 tests [1i - 28:23 THE [71- 1:1, 1:3, 12:5, 12:7, 47:6, 78:2, 78:6 THEM [1] - 78:7 thinking [31- 10:21, 16:14, 16:15 third [21- 27:22, 31:9 Thirty 111-15:21 thirty [31- 19:2, 29:5, 29:10 thirty-nine [1] - 29:5 THIS [1l - 78:22 THOMAS 11l - 1:22 thousand [7l - 17:17, 18:7, 18:10, 26:7, 29:6, 29:10, 60:3 three 151- 35:7, 42:14, 42:21, 43:8, 52:12 Three [21- 9:12, 56:15 timely 121- 28:16, 47:4 titled [41- 19:11, 26:12, 58:8, 64:5 TO Ill - 78:22 today 14] - 4:15, 5:8, 6:10, 15:8 together 131 - 15:6, 21:8, 44:21 Tom [21 - 18:19, 68:9 Tommy [221- 16:20, 17:18, 30:14, 31:2, 31:11, 31:14, 34:22, 35:9, 36:3, 37:7, DAVIS REPORTING PHONE (717)503-6568 FAX (717)566-5599 87 • 9:6, 43:4, 47:18, •7:19, 52:9, 55:15, 15:20, 61:9, 72:4, '4:6 )mmy's [11- 51:20 )ok [11- 62:18 ,ok [41- 11:9, 14:1, 14:14, 76:14 )p [41- 21:10, 21:19, 36:25, 69:5 )m [1I - 71:20 ?tal 151- 19:17, 31:10, 45:11, 56:16, 64:9 ouch (31- 72:11, 73:4, 73:22 own 1141 - 7:21, 8:10, 15:20, 15:21, 22:17, 24:15, 24:18, 25:12, 26:4, 40:18, 40:24, 41:24, 54:7, 56:16 township [271- 17:4, 17:21, 18:2, 18:14, 27:4, 27:7, 27:21, 31:8, 32:8, 32:9, 37:2, 38:21, 38:22, 39:19, 55:25, 57:23, 60:12, 60:15, 64:11, 64:12, 64:22, 65:6, 65:9, 65:10, 65:14, 67:6 Township [41- 10:2, 10:12, 13:25, 28:6 transcript [11- 79:18 TRANSCRIPT 111- 78:7 TRIAL (11- 1:4 trial [21- 4:6, 79:6 trooper [11- 30:10 trouble [21- 31:9, 32:15 typewriting [1l - 79:13 V Um-hum [11- 48:14 unavailable [1] - 42:21 under [61- 5:6, 44:1, 45:23, 66:1, 70:1, 79:13 underground [11- 18:17 understood [31- 8:16, 68:17, 68:18 Unger [1ol- 10:23, 10:24, 10:25, 14:1, 35:2, 36:19, 36:23, 70:17, 73:21 Unger's 111- 38:6 unit [31 - 26:7, 26:8, 26:9 United [11- 34:7 units (11- 56:21 unsatisfied (11- 35:3 up[281-6:16, 17:1, 17:12, 17:19, 23:16, 28:18, 29:2, 29:9, 30:9, 33:20, 34:19, 34:22, 37:18, 37:20, 37:22, 39:3, 39:11, 41:17, 46:6, 46:7, 56:5, 57:20, 57:22, 71:20, 71:25, 72:9, 73:24, 75:15 upset [51- 72:4, 72:5, 72:6, 72:21, 74:4 usual [21- 6:13, 6:17 utilities [51- 17:22, 18:1, 18:16, 22:14, 24:5 V 64:23, 65:4, 65:10, 66:5, 67:13, 68:9, 70:18, 70:25, 71:2, 71:5, 71:15, 73:9, 73:19, 76:17 Varish's [31- 19:2, 20:23, 21:22 venture [11- 15:4 ventures 111- 13:10 verbal [31- 25:14, 26:4, 70:5 verbally 141- 6:5, 6:7, 22:24, 23:2 volunteer [11- 55:1 W 62:1, 62:4, 62:5 Y yard [11- 21:12 year [61- 39:6, 57:13, 70:24, 73:12, 73:13, 73:15 years 131- 9:12, 13:5, 24:13 YOU 111- 78:7 yourself [21 - 51:23, 58:19 Z zero [11- 56:15 Zieja 12l - 41:7, 41:9 wait 131 32:22, 43:5, 47:1 ZIEJA [11- 41:8 8, 48:24, 56:1, 71 Ziggy 1131- 29:19, :11, 71:12, 76:4 Wait 29:20, 29:21, 29:23, [11 71:11 waived 40:13, 40:14, 41:3, [11- 4:4 wants 41:10, 41:11, 41:17, [31- 26:24, 29:1 55:10, 74:21, 74:22 7, 30:8 watch 111 ZIGGY (11 - 29:20 32:1 Zimmerman [71 - water [121- 17:12, 1 31:23,38:14, 38:16, 8:18, 22:4, 22:5, 22:21 38:17, 38:18,73:5, , 36:13, 39:4, 74:1 39:17, 39:25, 41:1, 52:12, 58:16 ways [11- 18:1 week (11- 59:16 weeks 121- 17:13, 43:8 whereof (11- 79:19 whole [21- 70:8, 72:14 wife [11- 55:4 wife's [11- 13:6 willing [11- 6:17 willingness [21- 10:7, 50:18 wintertime 111- 40:10 wise 111- 75:16 WITHIN [11- 78:22 WITNESS [41- 2:2, 12:5, 12:7, 47:6 witness [21- 4:8, 79:9 WOODSIDE [11- 1:18 word [31- 5:16, 69:6 word-for-word [11 - 5:16 words [31- 22:13, 46:6, 67:6 works [41- 6:15, 38:22, 40:16, 41:11 worth (11- 44:6 writing [11- 76:17 written 161- 25:5, 25:15, 25:16, 25:24, 63:10, 70:6 true [111- 42:10, 45:22, 46:12, 46:21, 47:3, 58:23, 60:23, 61:4, 61:7, 64:16, 64:19 truthfully (11- 5:9 try [11- 5:25 try Ing [21- 33:4, 65:22 twice [21- 4:22, 57:25 two [221- 17:17, 18:1, 18:7, 18:10, 18:12, 19:2, 42:14, 42:21, 43:8, 47:7, 53:4, 53:7, 53:14, 56:2, 62:14, 63:10, 67:10, 70:12, 70:24, 73:12, 73:13, 73:15 two-minute [11- 70:12 type [21- 4:20, 15:14 types [21- 7:20, 21:11 valve [11- 39:18 various [11- 21:11 VARISH [41- 1:1, 1:22, 3:7, 78:2 Varish 1581- 4:15, 16:21, 16:24, 18:19, 18:20, 19:1, 19:14, 20:2, 20:3, 20:7, 20:18, 20:19, 21:2, 23:11, 23:19, 23:23, 25:17, 25:23, 26:11, 27:5, 28:18, 28:21, 28:22, 32:3, 37:11, 38:3, 40:22, 43:13, 442, 44:14, 44:18, 51:12, 51:15, 51:24, 53:19, 54:5, 54:22, 57:8, 58:19, 58:23, 62:10, 62:14, 64:17, DAVIS REPORTING wrote [41- 61:25, PHONE (717)503-6568 FAX (717)566-5599 ? •-,.z ;_ t C`e3 t.). J t Y ? _ ?..-? L"... ^' ?- '_ .j1. s..- ? L..? y ALL' 4i f_J i.r_! - {.. i--• . r ' Vim' ?„f - 10 10,11, VARISH CONSTRUCTION,: IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL ACTION - LAW THE COMMONS AT PARKER SPRINGS, INC., : Defendant : NO. 07-7500 MLD IN RE: DEFENDANT'S MOTION TO STRIKE MECHANICS' LIEN CLAIM BEFORE OLER, J. ORDER OR COURT AND NOW, this 51h day of December, 2008, upon consideration of Defendant's Motion To Strike Mechanics' Lien Claim, and following oral argument on December 4, 2008, at which an issue developed as to whether Defendant's alleged failure to serve and file timely advance notice of its intention to file a mechanic's lien in its purported capacity as a subcontractor for K&I Contractors rather than as a contractor for Plaintiff has been properly framed for consideration by the court, it is ordered and directed as follows: 1. Plaintiff is afforded a period of 14 days from the date of this order to amend its motion to strike to specifically include this issue in its motion; 2. Defendant is afforded a period of 7 days thereafter to file an answer in response to this amendment; 3. Supplemental briefs on this issue shall be submitted to the court on or before January 7, 2009; and 4. Further oral argument on Defendant's motion to strike is scheduled for Thursday, January 15, 2009, at 11:00 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. S N N3d cc :I Wd S- 3301oZ jr. "Peter M. Good, Esq. River Chase Office Center Third Floor 4431 North Front Street Harrisburg, PA 17110-1778 Attorney for Plaintiff Michael D. Reed, Esq. 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110 Attorney for Defendant C-6p e S P-AgtL?CL ia?s`oe BY THE COURT, /J/ J1 f Wesley Oleic r., J. s VARISH CONSTRUCTION, INC., Plaintiff vs. THE COMMONS AT PARKER SPRINGS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 07-7500 : CIVIL ACTION - LAW : MECHANICS' LIEN DEFENDANT'S AMENDED MOTION TO STRIKE MECHANICS' LIEN CLAIM AND NOW comes Defendant The Commons at Parker Springs, Inc., through its counsel, Mette, Evans & Woodside, P.C. and moves this Court to Strike the Mechanics' Lien Claim filed in the above-captioned matter by Plaintiff Varish Construction, Inc., in support of which it avers as follows: Defendant The Commons at Parker Springs, Inc. ("Parker Springs") is the owner of certain property located partly in North Middleton Township and partly in Middlesex Township, Cumberland County, Pennsylvania as more fully described in a deed recorded on June 21, 2006 in Cumberland County Deed Book Volume 275, Page 1220, a copy of which deed was attached as Exhibit C to a Mechanics' Lien Claim of Plaintiff Varish Construction, Inc. ("Varish") filed previously in this matter. 2. Varish entered into a contract with Parker Springs to perform site work on the property in connection with the involvement thereon of a residential subdivision. A copy of Varish's contract with Parker Springs was attached as Exhibit A to the Mechanics' Lien Claim filed previously by Varish in this matter. 3. On June 21, 2006, Parker Springs filed with this Court a Stipulation Against Liens executed by Varish in favor of Parker Springs. A true and correct copy of the Stipulation Against Liens is attached hereto as Exhibit A and incorporated herein by reference as if fully set forth. 4. On or about December 12, 2007, Varish filed the present Mechanics' Lien Claim and served a copy upon counsel for Parker Springs. The copy served upon counsel for Parker Springs did not contain a Notice to Plead. 5. Pursuant to Rule 1651(d) of the Pennsylvania Rules of Civil Procedure, the procedure with regard to mechanics' lien claims is to be in accordance with the rules relating to a civil action, except as otherwise provided thereunder. 6. To the extent Varish's Mechanics' Lien Claim is filed in Varish's capacity as a general contractor to Parker Springs, Varish's Mechanics' Lien Claim is invalid on its face given the prior filing of a valid Stipulation Against Liens. 7. At Paragraph 3 of its Mechanics' Lien Claim, Varish states, in pertinent part: "Varish makes this claim as a subcontractor." 8. The Mechanics Lien Law of Pennsylvania, as amended, provides at 49 P.S. §501(b.l): No claim by a subcontractor, whether for erection or construction or for alterations or repairs, shall be valid unless, at least thirty (30) days before the same is filed, he shall have given to the owner a formal written notice of his intention to file a claim, except that such notice shall not be required where the claim is filed pursuant to a rule to do so as provided by Section 506. 9. Section 506 of the Mechanics Lien Law relates to the situation where a rule to file liens has been issued, and does not apply to the present case. 10. Accordingly, Varish was required, as a condition precedent to asserting a mechanics lien claim as a subcontractor, to provide Parker Springs formal written notice of its intent to file such a claim at least thirty (30) days prior to the filing of the claim, pursuant to 49 P.S. §1501(b.1). 2 11. At 49 P. S. § 1501(c) the law requires that the formal written notice from the subcontractor to the owner shall state the following: (1) the name of the party claimant; (2) the name of the person with whom he contracted; (3) the amount claimed to be due; (4) the general nature and character of the labor or materials furnished; (5) the date of completion of the work for which his claim is made; (6) a brief description sufficient to identify the property claimed to be subject to the lien. 12. At 49 P. S. § 1501(d) the law requires the following with regard to service of the subcontractor's formal written notice: (d) Service of notice. The notice provided by this section may be served by first class, registered or certified mail on the owner or his agent or by an adult in the same manner as a writ of summons in assumpsit, or if service cannot be so made then by posting upon a conspicuous public part of the improvement. 13. Varish did not provide to Parker Springs the formal written notice of its intent to file a mechanics lien as required by 49 P.S. § 1501(b. 1), (c) and (d). 14. It is Varish's burden to prove compliance with the formal written notice provisions of the Mechanics Lien Law as a prerequisite to bringing its mechanics lien claim as a subcontractor. 15. The Affidavit of Harry Z. Brill, President and sole shareholder of the Commons at Parker Springs, Inc. is attached hereto as Exhibit "B" and is incorporated herein by reference as if fully set forth. 16. Parker Springs received no prior notice of Varish's intent to file a mechanics lien claim before the claim was filed, with the exception of an e-mail message to its counsel one day before the claim was filed. 17. Accordingly, to the extent Varish filed its claim as a subcontractor, the claim should be stricken for failure to comply with the notice requirements of 49 P. S. § 1501. 18. Accordingly, this Court should strike the legally invalid Mechanics' Lien Claim of Varish for lack of conformity to law and rule of court. 19. Pursuant to Local Rule 208.3(a)(2) Defendant Parker Springs notes that The Honorable J. Wesley Oler has ruled upon issues arising from the same facts and circumstances relating to the same construction project in a related case docketed at number 07-6274 Civil Term. WHEREFORE, Defendant The Common at Parker Springs, Inc. respectfully requests this Court to strike the Mechanics' Lien Claim of Varish Construction, Inc. and to enter an Order awarding costs and reasonable attorneys' fees to Defendant in connection with the filing of this Motion. Respectfully submitted, METTE, EVANS & WOODSID _22 BY: D. Reed, Esquire Sup. Ct. I.D. #35193 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Dated: December 18, 2008 Attorney for Defendant 4 The Commons 4 Parker Spring, Inc. STIPULATION AGAINST LIENS OWNER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY VS. COMMONWEALTH OF PENNSYLVANIA ?rf}R ? S!? C ti sT??'UfT?e?, z-,a?. CONTRACTOR NO. OG - 3 53 ? M. D 1Z, WHEREAS, a Commons at Parker Spring, Inc. of the City of Allentown, County of Lehigh and Commonweal of Pe lvania hereinafter called the Owner, entered into a contract with t1,41Z 1 S/? C o A,f T/? of County of ?Q and Commonwealth of Pennsylvani ,hereinafter called the Contractor, to provide ma rials and perform labor necessary for the construction and development of all site improvements including but t limited to grading, paving storm water management systems, water systems, sanitary sewer and infrastruc a upon land known as: AICTHAT (CERTAIN tract of land situate partly in North Middleton Township and Partly in Middlesex Township, C berland County, Pennsylvania, bounded and described according to the Final Subdivision Plan for The Co ons at Parker Spring, prepared by Hartman and Associates, Inc., Engineers and Surveyors, dated March 23, 19 9, revised October 20, 2005, to be recorded in the Office for the Recording of Deeds in Cumberland ounty, Pennsylvania Now, 9-vH 2 /!? f , 20 O ?, before any authority has been given by the Owner to the Contractor to commence wo on said improvements or purchase materials for the same, it is hereby stipulated and agreed by and between said p ies as part of said contract and for the consideration therein set forth, that neither the undersigned Contractor, an Sub-Contractor or material than, nor any other person furnishing labor or materials to the said Contractor under the con t entered into between said parties shall file a lien for work done or material furnished to said building, improvements r any part thereof This stipulatio is made and intended to be filed with the Prothonotary within 10 days after date in accordance with the requirements f the Act of August 24, 1963, P.L. 497, as amended. IN WITNES WHEREOF, the said parties have hereunto set their hands and seals the day and year aforesaid. SIGNED, S ALED AND DELIVERED THE COMMONS AT PARKER SPRING, INC. in th presence of: BY: (Seal) Harry rill, President ATTEST: BY: PA-0a (Seal) ?]i. 002/004 VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff' CUMBERLAND COUNTY, PENNSYLVANIA V& : N0.07-7500 THE COMMONS AT PARKER CIVIL ACTION - LAW SPRINGS, INC., ; Defendant MECHANICS' LIEN AFFIDAVIT 1, Harry Z. Brill, being duly sworn and deposed, do hereby testify that the following facts are true and correct to the best of my knowledge, information and belief- I . I am the President and sole shareholder of The Commons at Parker Springs, Inc. 2. The Commons at Parker Springs, Inc. is the owner of the property located partly in North Middleton Township and partly in Middlesex Township, Cumberland County, Pennsylvania, more fully described in the Deed recorded on June 21, 2006, in Cumberland County Deed Book Volume 275, Page 1220, in the Recorder of Deed's Office of Cumberland County, Pennsylvania, known, now or formerly, as Parcel Nos. 29-08-0575-003 and 29-08-0575-002, which is the subject of Varish Construction, Inc.'s mechanics' lien claim. 3. My attorney received a copy of Varish Construction, Inc.'s mechanics' lien claim on December 14, 2007. 4. The only prior notice which The Commons at Parker Springs, Inc. received with respect to the mechanics' lien claim was an electronic mail ("e-mail") message directed to my attorney dated December 11, 2007, a copy of which is attached hereto as Exhibit "A". 14:48 F.AC ?r003/004 5. Neither 1, personally, nor The Commons at Parker Springs, Inc. as a corporation, received any other written notice of Varish Construction, Inc.'s intention to file a mechanics' lien claim against the property in question. Date: 2 Harry Z. Bri Sworn to and subscribed before me this 1G day of -/- , 2008. NOTA.R UBLIC COMMONWEALTH OF PENNSYLVANIA Notarial Seal Monica J. Said, Notary Public Susquehanna Twp., Dauphin County My Commission Expires July 12, 2012 Member, Pennsylvania Associaticxi I Notaries 508374vl FAX IZ004/004 Page I of 1 Reed, Mike From: Peter M. Good [pgood@sasiip.com] Sent: Tuesday, December 11, 2007 11:37 AM To: Reed, Mike Subject: Varish v. The Commons at Parker Springs Mike Wilf you accept service of a Mechanics Lien Action we are filing against The Commons at Parker Springs? Regards, Peter Peter M. Good, Esquire 5migel, Anderson & Sacks 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 - tel (717) 234-3611 - fax pgoo_d_@saslip,com q Exhibit "A" 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, L.L.P. River Chase Office Center, 3`d Floor 4431 North Front Street Harrisburg, PA 17110-1778 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 (717) 232-5000 Dated: December 18, 2008 Attorney for Defendant ( ! ? ?? ",' ? ? x ' - _T. 'F? -x { - j ` ...... 4i ?;'t:: .. ' ?.. a? C?:s SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center 4431 North Front Street, 3'd Floor Harrisburg, PA 17110-1778 (717) 234-2401 VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., Defendant. 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. 07-7500 CIVIL ACTION - LAW : MECHANICS' LIEN PLAINTIFF'S RESPONSE TO DEFENDANT'S AMENDED MOTION TO STRIKE MECHANICS' LIEN AND NOW COMES, Plaintiff Varish Construction, Inc., (hereinafter "Varish"), by and through its attorneys, Smigel, Anderson & Sacks, LLP, to file the following Plaintiffs Response to Defendant's Motion to Strike Mechanics' Lien Claim and avers in support as follows: 1. Admitted. 2. Admitted with clarification. Varish entered a construction contract with Parker Springs to perform the contract work described in the contract. Varish also contracted with Parker Springs' general contractor on the job site, K&I Contractors, to perform additional work at the job site memorialized in a series of written invoices attached to Varish's Mechanics' Lien as Exhibit B. 3. Admitted. 4. Admitted in part and denied in part. It is admitted that on or about December 12, 2007 filed a Mechanics' Lien. The Mechanics' Lien contained a "Mechanics' Lien Claim Notice to Owner" as well as the actual Mechanics' Lien. Counsel for Parker Springs accepted service on behalf of Parker Springs. 5. Admitted. 6. Denied. The Mechanics' Lien is for work done not covered by the Stipulation Against Liens for K & I Contractors but for the benefit of Parker Springs. See Mechanics' Lien at ¶ 5. The Mechanics' Lien is valid as there was no Stipulation Against Liens filed by K & I Contractors. Although there was a Stipulation Against Liens filed by Parker Springs against K & I, Varish was not a party to this Stipulation and it was entered into after pre-waiver of lien rights was prohibited by the Pennsylvania Mechanics' Lien Law. 49 P. S. § 1401 (amended 2006). 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 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. 11. Admitted. 12. Admitted. 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. 14. 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. 15. Admitted. 2 16. Admitted with clarification. Counsel for the Commons at Parker Springs, Inc. responded on December 11, 2007 by stating "Yes, I will accept service." A true and correct copy of the e-mail is attached hereto as Exhibit A. 17. 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. 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. Admitted. WHEREFORE, Varish Construction, Inc. respectfully requests that the Motion to Strike filed by Defendant The Commons at Parker Springs, Inc. be denied. Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. !4__I'' )_ml Date: 1,1 By: Peter M. Good, Esquire -TD # 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 3 EXHIBIT A Message Peter M. Good From: Reed, Mike [MDREED@METTE.COM] Sent: Tuesday, December 11, 2007 5:09 PM To: Peter M. Good Subject: RE: Varish v. The Commons at Parker Springs Peter, Yes, I will accept service. Mike -----Original Message----- From: Peter M. Good [mailto:pgood@saslip.com] Sent: Tuesday, December 11, 2007 11:37 AM To: Reed, Mike Subject: Varish v. The Commons at Parker Springs Mike - Page 1 of 1 Will you accept service of a Mechanics Lien Action we are filing against The Commons at Parker Springs? Regards, Peter Peter M. Good, Esquire Smigel, Anderson & Sacks 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 - tel (717) 234-3611 -fax pgood@saslip.com 12/22/2008 VARISH CONSTRUCTION, INC., Plaintiff, V. THE COMMONS AT PARKER SPRINGS, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. NO. 07-7500 MLD CIVIL ACTION - LAW 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 Plaintiffs Response to Defendant's Amended Motion to Strike 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: By. -6CA, ?-l 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,: IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL ACTION - LAW THE COMMONS AT PARKER SPRINGS, INC., : Defendant : NO. 07-7500 MLD IN RE: DEFENDANT'S MOTION TO STRIKE MECHANICS' LIEN CLAIM and DEFENDANT'S AMENDED MOTION TO STRIKE MECHANICS' LIEN CLAIM BEFORE OLER, J. ORDER OR COURT AND NOW, this 16th day of January, 2009, upon consideration of Defendant's Motion To Strike Mechanics' Lien Claim, and Defendant's Amended Motion To Strike Mechanics' Lien Claim, and following oral argument on January 15, 2009, the motion to strike is granted. Ater M. Good, Esq. River Chase Office Center Third Floor 4431 North Front Street Harrisburg, PA 17110-1778 Attorney for Plaintiff ZM/i'chael D. Reed, Esq. a 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110 Attorney for Defendant BY THE COURT, J "Wesley Ole ., J. S.6 y IL.? 0 0.16 14V ZZ NVr HE VARISH CONSTRUCTION, INC., Plaintiff V. THE COMMONS AT PARKER SPRINGS, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-7500 CIVIL ACTION - LAW MECHANICS' LIEN PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, The Commons at Parker Springs, Inc., in the above-referenced matter. Respectfully submitted, CALDWELL & KEARNS, P.C. By: Michael D. Reed, Esq ire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Defendant The Commons at Parker Springs, 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 Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Third Floor Harrisburg, PA 17110-1778 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. DATED: January 21, 2009 143546 ? ;? ('? <<? --j't ... ?~ v':] ? ? ? _ Cam.. - - t`+J ""'? ? j .,. ' i.. .. ?'"? VARISH CONSTRUCTION,: IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL ACTION - LAW THE COMMONS AT PARKER SPRINGS, INC., : Defendant : NO. 07-7500 MLD ORDER OR COURT AND NOW, this 28 h day of September, 2010, upon consideration of the attached letter from Defendant's counsel, Michael D. Reed, Esq., and upon relation of Plaintiff's counsel, Peter M. Good, Esq., that he has no objection to Defendant's request, judgment is hereby entered in the above-captioned mechanic's lien case in favor of Defendant and the mechanic's lien entered in favor of Plaintiff is stricken. ?Peter M. Good, Esq. River Chase Office Center Third Floor 4431 North Front Street Harrisburg, PA 17110-1778 Attorney for Plaintiff ./ Michael D. Reed, Esq. 3631 North Front Street Harrisburg, PA 17110-1533 Attorney for Defendant ?e? ma?lsEL w «m C - ? .: BY THE COURT, CALDWELL & KEARNS JAMES R. CLIPPINGER JAMES L GOLDSMITH P. DANIEL ALTLAND JEFFREY T. MCGUIRE• STANLEY J.A. LASKOWSKI DOUGLAS K. MARSICO BRETT M. WOODBURN MICHAEL D. REED PAULA J. LEK:HT MICHAEL A. FARRELL THOMAS M. FRATICELLI GREGORY D. Gass THOMAS S. LEE ELIZABETH H. FEATHER KAREN W. MILLER DOUGLAS M. OBERHOLSER 'BOARD CERTIFIED CIVIL TRIAL ADVOCATE A PROFESSIONAL CORPORATION OF COUNSEL ATTORNEYS AT LAW JAMES D. CAMPBELL, IR. CHARLES J. DEHART, III THOMAS D. CALDWELL, JR. 3631 NORTH FRONT STREET (1928-2001) HARRISBURG, PENNSYLVANIA 17110-1533 CARL G. WASS (1937-2010) 717-232-7661 FAX: 717-232-2766 RICHARD L KEARNS RETIRED THEFIRM@CKLEGAL.NET September 16, 2010 Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Re: Varish Construction, Inc. v. The Commons at Parker Springs, Inc. Docket No. 07-7500 MLD Dear Judge Oler: As you may recall, I represent the Commons at Parker Springs, Inc. in the above-referenced matter. On January 16, 2009, you entered an Order striking the mechanics' lien which Plaintiff had filed against the property owned by The Commons at Parker Springs, Inc. I was recently advised by an attorney representing a buyer who sought to purchase a townhouse on the property that the mechanics' lien still appears of record and is thus an impediment to the issuance of title insurance. The attorney in question checked with the Prothonotary's office and was advised that the reason the lien had not been removed was that your Order had never been reduced to judgment on the docket. When I was provided with that information, I immediately filed a Praecipe to Enter Judgment based upon your Order. My Praecipe was returned from the Prothonotary's office, indicating that your Order was not sufficiently specific to allow the entry of judgment. Copies of my Praecipe and the Prothonotary's letter are enclosed for your reference. I am therefore requesting guidance from the Court as to whether this is a matter that can be handled internally between your office and that of the Prothonotary, or whether some type of a motion from me is required to have the Order entered as a judgment. I would be most grateful for your guidance on this matter. Thank you for your time and consideration. Very truly yWeed Michael D. MDR/tas Enclosure SEe1,o cc: Peter M. Good, Esquire 167463 VARISH CONSTRUCTION, INC., Plaintiff . v. . THE COMMONS AT PARKER SPRINGS, INC., . Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-7500 MLD CIVIL ACTION -LAW MECHANICS' LIEN PRAECIPE TO ENTER JUDGMENT TO THE PROTHONOTARY: °~~ ~-:~ da.w _ _ ; 7 c a cr'7 ~ i , ~' , ~ s: ~ .:~ ~~ _ l~ ~~ ~~ Pursuant to the Court's Order dated September 28, 2010, kindly enter judgment in favor of Defendant, The Commons at Parker Springs, Inc., in the above-referenced matter. Respectfully submitted, CALDWELL & KEARNS, P.C. B ~.~/ Y~ 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 Defendant The Commons at Parker Springs, Inc. DATED: October 1, 2010 I'~. 00 PA A'~'YH C-1F 55o'L8~ ~-'~ a~41 coq I~o+~ee ~,1lou~-~ 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, Harrisbwg, 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 Harrisbwg, PA 17110-1778 CALDWELL & KEARNS, P. By: Michael D. Reed, Esquire Attorney I.D. #35193 3631 North Front Street Harrisburg, PA 17110-1533 (71?) 232-7661 (717) 232-2766 (fax) Attorneys for Defendants The Commons at Parker Springs, Inc. DATED: October 1, 2010 166378