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HomeMy WebLinkAbout08-10560 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff No. A5-_ /0.521 vs. MCCOY BROTHERS, INC. Defendant NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone (717) 249-3166 PECHT & ASSOCIATES, PC / By: Herbert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 Telephone: (717) 367-2800 Attorney I.D. #56304 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff : No. vs. MCCOY BROTHERS, INC. Defendant Q M EL R ANT 1. The Plaintiff, Dawood Associates, Inc., (hereinafter "Dawood"), is a Pennsylvania business corporation, duly incorporated under the laws of this Commonwealth, with a principal place of business at 354 Alexander Spring Road, Suite 4, Carlisle, Pennsylvania, Cumberland County 17013. 2. Defendant herein is McCoy Brothers, Inc., (hereinafter "McCoy"), is believed to be a Pennsylvania business corporation with a last known principal place of business located at 1514 Commerce Drive, Carlisle, Pennsylvania 17013. OPERATIVE FACTS 3. Paragraphs 1 and 2 are incorporated herein by reference as set forth at length. 4. The Plaintiff, Dawood, is a licensed engineering firm which engages in the business of civil engineering, land development and planning, and surveying in connection with the development of real estate for both commercial and residential subdivisions and construction. 5. The Defendant, McCoy, is a general contractor. 6. On or about February 28, 2005, Greg Kuhn, a duly authorized agent of McCoy, did enter into and otherwise contract with Dawood to assist McCoy in obtaining approval of a variance for improvements McCoy was contacted to complete for the Camp Hill Diner located at 3449 Simpson Ferry Road, Hampden Township, Camp Hill, Pennsylvania 17011. 7. Pursuant to an oral agreement between Dawood and McCoy, and based upon their previous relationship. Dawood provided a series of engineering, land development planning and surveying services for McCoy. 8. Dawood did perform the necessary work required of it in a satisfactory and professional manner in accordance with standards promulgated by and accepted by standards of the industry for engineering, land development planning and surveying. True and correct copies of the consolidated invoices incorporating all invoices provided are attached hereto, made a part hereof, incorporated herein by reference and marked collectively as Exhibit "A". 9. The amount outstanding, due and owing for the work for services provided McCoy Brothers for the Camp Hill Diner job is $6,758.39 which amount is due and owing and currently past due, which amount includes all past due invoices and interest. 10. To date, despite Dawood's numerous demands for payment, McCoy has failed and otherwise refused to pay the total outstanding amount totaling $6,758.39. 11. Although McCoy claims the Camp Hill Diner agreed to pay the statement, at no time has McCoy provided any documentation. COUNTI (Breach of Contract) 12. Paragraphs 1 through 11 are incorporated herein as if set forth at length. 13. Plaintiff believes, and therefore avers, that McCoy entered into a contract with Dawood whereby Dawood agreed to perform various survey, engineering and land development planning services in connection with McCoy's proposed Camp Hill Diner project in Hampden Township, Cumberland County, at or near 3449 Simpson Ferry Road. 14. Plaintiff believes and therefore avers, that failure to pay all invoices when submitted in a timely basis is a material breach of the parties' contract. 15. McCoy, at some point in time after the services were provided, advised Dawood that it received payment from the Camp Hill Diner and that Camp Hill agreed to pay Dawood directly. Dawood acknowledges these terms, but never agreed to secure payment from Camp Hill Diner nor release McCoy from its contractual obligation. 16. Plaintiff believes, and therefore avers, that McCoy has breached its contract with Dawood in that McCoy has failed and refused to pay the outstanding contract amount of $6,758.39. 17. As a result of the breach Plaintiff has suffered damages in the amount of $6,758.39. WHEREFORE, Plaintiff, Dawood Associates, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Defendant McCoy Brothers, in the amount of $6,758.39 plus costs and reasonable attorney fees, and such other relief as this Court deems just and appropriate, which amount is within the arbitration limits of this county. COUNT II (Unjust Enrichment) (Pleaded in the Alternative) 18. Paragraphs 1 through 17 are incorporated herein by reference as set forth at length. 19. By failing to pay the contract amount for work performed by the Plaintiff, the Defendant has been unjustly enriched in the amount of $6,758.39. WHEREFORE, Plaintiff, Dawood Associates, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Defendant McCoy Brothers, in the amount of $6,758.39 plus costs and reasonable attorney fees, and such other relief as this Court deems just and appropriate, which amount is within the arbitration limits of this county. Respectfully Submitted, PECHT & AS By: Herbert P. Henderson, II, Esquire Attorney I.D. # 56304 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 VERFICATION The undersigned, Pamela E. Fisher, hereby verifies and states that: 1. She is the Vice-President of Dawood Associates, Inc.; 2. She is authorized to make this Verification on behalf of Dawood; 3. The factual statements set forth in the foregoing document are true and correct to the best of his knowledge, information and belief, 4. She is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. / Pamela E. Fisher Dated: J, Z Z/ Za DAWOOD associates, inc. r Camp Hill Diner Saint Joseph and Mary, Inc. 3449 Simpson Ferry Road Camp Hill PA 17011 CARLISLE REGIONAL OFFICE 354 ALEXANDER SPRING ROAD SUITE 4 CARLISLE, PA 17013 717.249.9595 VOICE 717.249.8088 FAX STATEMENT February 8, 2006 According to McCoy Brothers you reached a settlement on their invoices that did not include our services. We have been directed by McCoy Brothers that we were to forward these invoices to you for payment. Please note that we accomplished what we were asked to do. You received a variance from the Zoning Hearing Board and were allowed to re-open without the necessity of a Land Development Plan. Inv. Project # Invoice Project Desc Date # 02/28/05 105502.C 1 Cam Hill Din 03/31/05 105502.0 2 Cam Hill Dingy 04/30/05 105502.C 3 Cam Hill Dinl 05/31/05 105502.C 4 Camp Hill Din( BALANCE DL ripiion Invoice amount er 1765.53 er 1254.15 'r 2108.69 'r 402.57 IE $ 5530.94 We did received payment in the amount of $ 204.35 for our invoice # 5 dated August 31, 2005. Payment received from Camp Hill Diner on 11-09-05 Please review the attached invoice copies. If our information is incorrect and payment has been made, please advise. Prompt payment of the outstanding balance would be appreciated. Thank you Pamela E. Fisher ENGINEERS i- ['LANNEP,?S n CII?vFVnRc ,. .. associates, inc. CARLISLE REGIONAL O F F I C ENGINEERS PLANNERS SURVEYORS Statement 2/12/2007 Project # 105502.C McCoy Brothers Incorporated 1514 Commerce Drive PO Box 7300 Carlisle PA 17013 The invoices on this statement are past due. Should you have any questions and/or need to make payment arrangements, please call Pamela E. Fisher at (717) 249-9595. Project Name: Camp Hill Diner Simpson Ferry Road - Hampden Twp. Date Original Invoice Information Invoice Amount Balance Due 02/28/2005 INV #05-02-8. Orig. Amount $1 765 53 03/31/2005 , . . INV #05-03-16. Orig. Amount $1 254 15 1,76 5 - 53 1,765.53 04/30/2005 , . . INV #05-04-15. Orig. Amount $2 108 69 15 1,254.15 3,019.68 05/31/2005 , . . INV #05-05-13. Orig. Amount $402 57 08.69 2,1 5,128.37 02/10/2007 . . INV #FC 16. Orig. Amount $1,227.45. Finance 402 .57 1 227 45 5,530 .94 Charge , . 6,758.39 Total mount Due $6,758.39 The invoice(s) shown on this statement are over 90 days deliquent. Please note that finance charges have been added to your account balance. If payment IS received within 10 days from the date of this statement, the finance charges will be forgive. If payment, in full, is NOT received within 10 days from the date of this statement we will be turning this account over to our attorney for collection where you will be liable for the original invoice, finance charges and our attorney fees. Please note: All the invoices you have received for this project have indicated our intent to charge 12% interest on past due balances. Please forward your payment to Dawood Associates, Inc. in the enclosed envelope. Thank you CURRENT Finance Charges 31-60 DAYS PAST 61-90 DAYS PAST OVER 90 DAYS DUE DUE PAST DUE Amount Due 0.00 1,227.45 1 0.00 1 0.00 1 5,530.94 1 $6,758.39 INVOICE 8/31/2005 Project # 105502.C Project Invoice # 5 Camp Hill Diner 3449 Simpson Ferry Road Camp Hill PA 17011 Camp Hill Diner - Simpson Ferry Road - Ham Township - Cumberland County Services rendered from last invoice forwa cCoy Brothers through August 27, 2005 on the h 'I above referenced project. Services incl ndance at Zoning Hearing Meeting at Hampden Township and revisions to site plan request by Jerry Spease, Hampden Township Engineer. Although this is invoice # 5 for this project, this is the 1st invoice forwarded directly to the Camp Hill Diner. The previous 4 invoices were send to McCoy Brothers, Inc. Should you have any questions on this invoice, please call. Please forward payment along with the yellow invoice copy in the enclosed envelope. Make sure checks are made payable to Dawood Associates and NOT Dawood Engineering. Thank you ! Dawood Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 17013 Total amount due $204.35 RECEIV NOV U ? 2005 All invoices are due and payable upon receipt. All invoices paid after 30 days of invoice date will be charged interest. Interest is calculated at 1 % per month or 12% annually. INVOICE 5/31/2005 Project # 105502.C Project Invoice # 4 McCoy Brothers, Inc. 1514 Commerce Avenue P.O. Box 7300 Carlisle PA 17013 CAMP HILL DINER - Simpson Ferry Road - Hampden Township - Cumberland County Services rendered in the attendance at the Hampden Township PC meeting, revisions to the ZHB Variance application (as a result of the denial at the PC meeting) and changes to the site plan. The revisions created the necessary parking spaces needed for the vestibule expansion and does not exceed the maximum lot coverage of 80%. Please forward payment to Dawood Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 17013 Total amount due $402.57 All invoices are due and payable upon receipt. All invoices paid after 30 days of invoice date will be charged interest. Interest is calculated at 1 % per month or 12% annually. INVOICE 4/30/2005 Project #105502.C Project Invoice # 3 McCoy Brothers, Inc. 1514 Commerce Avenue P.O. Box 7300 Carlisle PA 17013 CAMP HILL DINER - Simpson Ferry Road - Hampden Township - Cumberland County Services rendered from last invoice through April 30, 2005. Services include attendance at Hampden Township Planning Commission, meeting with clients and general contractor, review of parking requirements for this use and adjoining property, and revisions to sketch plan showing four (4) additional parking spaces as required by Zoning Ordinance. Revisions were also made to the Special Exception and Variances requested previously. Please forward payments in enclosed self-addressed envelope to: Dawood Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 17013-3193 Total amount due $2,108.69 All invoices are due and payable upon receipt. All invoices paid after 30 days of invoice date will be charged interest. Interest is calculated at 1 % per month or 12% annually. INVOICE 3/31/2005 Project #105502.C Project Invoice # 2 McCoy Brothers, Inc. 1514 Commerce Avenue P.O. Box 7300 Carlisle PA 17013 CAMP HILL DINER - Simpson Ferry Road - Hampden Township - Cumberland County Services rendered from last invoice through March 26, 2005 on the above referenced project. Services include, but not limited to: Meetings and revisions to sketch plans related to the Special Exception Application filed with Hampden Township for the expansion of the existing facility and variance for parking spaces. Please forward payments in enclosed self-addressed envelope to: Dawood Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 17013-3193 Total amount due $1,254.15 All invoices are due and payable upon receipt. All invoices paid after 30 days of invoice date will be changed interest. Interest is calculated at 1 % per month or 12% annually. INVOICE 2/28/2005 Project #105502.C Project Invoice # 1 McCoy Brothers, Inc. 1514 Commerce Avenue P.O. Box 7300 Carlisle PA 17013 Camp Hill Diner - Simpson Ferry Road - Hampden Township - Cumberland County Services rendered through February 26, 2005 on the preparation of an application to the Zoning Hearing Board for a Special Exception to allow for the expansion of a non-conforming use and variance that will allow the construction of small expansions to the existing building footprint. Please forward payments in enclosed self-addressed envelope to: Dawood Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 17013-3193 Total amount due $1,765.53 All invoices are due and payable upon receipt. All invoices paid after 3p days of invoice date will be charged interest. Interest is calculated at I% per month or 12% annually. v "V MIS a ._a Yi l .. yi SHERIFF'S RETURN - REGULAR CASE NO: 2008-01056 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MAWOOD ASSOCIATES INC VS MCCOY BROTHERS INC STEPHEN BENDER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MCCOY BROTHERS INC the DEFENDANT , at 1040:00 HOURS, on the 21st day of February-, 2008 at 1514 COMMERCE DRIVE CARLISLE, PA 17013 WANDA WICKARD, OFFICE MANAGER by handing to ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge 31v31or 18.00 4.80 .58 10.00 .00 33.38 Sworn and Subscibed to before me this day So Answers: ?00-% R. Thomas Kline 02/21/2008 PECHT & ASSOCIATES By: D puty Sheriff of A. D. DAWOOD ASSOCIATES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PA CIVIL ACTION LAW V. NO. 08-1056 McCOY BROTHERS, INC. Defendant NOTICE TO PLEAD To: Herbert P. Henderson, II, Esquire PECHT & ASSOCIATES, P.C. 55 West High Street Elizabethtown, PA 17022 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER TO PLAINTIFFS' COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, Date: ? -t_' K RHOAD & SINON LLP B D Piermattei, Esquire `Stephanie E. DiVittore, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Dean F. Piermattei, Esquire Attorney I.D. No. 53847 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant McCoy Brothers, Inc. DAWOOD ASSOCIATES, INC., Plaintiff' V. McCOY BROTHERS, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION LAW NO. 08-1056 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER NOW COMES, Defendant, McCoy Brothers, Inc., by and through counsel, Rhoads & Sinon LLP, and files the within ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT, as follows 1. Admitted based on information and belief. 2. Admitted. 3. No response is required. 4. Admitted based on information and belief. 5. Admitted. 6. Denied as stated. Greg Kuhn did contact an agent for Dawood and inquired as to whether they could assist the owner of the Camp Hill Diner in obtaining approvals for a variance for expansion improvements that the owner of the Camp Hill Diner wished to undertake. McCoy Brothers at no time, however, entered into any agreement with Dawood Engineering either orally 402131.1 or in writing for Dawood's services, nor did McCoy Brothers ever benefit to any extent from any work performed by Dawood. 7. Admitted in part. It is admitted that Dawood provided engineering, land development planning and surveying services, but these services were not performed for McCoy Brothers. Rather, they were performed for the owner of the Camp Hill Diner. By way of further answer, see McCoy Brothers' response as set forth in paragraph 6 above. 8. Denied. The allegations in this paragraph are specifically denied as McCoy Brothers is unaware of the actual services performed by Dawood and is, therefore, without sufficient information or knowledge to form a belief as to the truth of the allegations. These services were performed for the owner of the Camp Hill Diner, and Plaintiff worked with the owner directly. At no time dial McCoy Brothers bill or collect from the owner of the Camp Hill Diner for the services at issue in this Complaint. Dawood was instructed by McCoy Brothers to deal directly with the owner and did have direct interaction with the owner after McCoy Brothers was no longer involved in the Project. 9. Denied. This is a conclusion of law and does not require a response. To the extent that there are averments of fact contained herein, the same are specifically denied as there is no amount due and owing by McCoy Brothers to Dawood. Furthermore, McCoy Brothers did not receive any "services" from Dawood Engineering, but rather these services were provided directly to and for the benefit of the owner of the Camp Hill Diner. Dawood Engineering dealt directly with representatives for the Camp Hill Diner. 10. It is admitted that McCoy Brothers has not paid the amount demanded to Dawood, however, this refusal to pay is justified for the reasons set forth above. 2 11. Denied. The allegations in this paragraph are specifically denied. It has been explained to Dawood on a number of occasions that McCoy Brothers did not bill or collect for the services provided by Dawood, however, Dawood has chosen not to sue the party who received the benefit of their services. In fact, McCoy Brothers was only involved in the Project initially to do cleanup after a fire at the Camp Hill Diner and to secure the premises. McCoy Brothers was not involved in the reconstruction efforts or the expansion work which involved Dawood's services. COUNTI (Breach of Contract) 12. McCoy Brothers incorporates its answers in paragraphs 1 through 11 above as if fully set forth herein at length. 13. Denied. It is unknown what Plaintiff's believes and, therefore, this portion of the allegation is denied. By wavy of further answer, at no time did McCoy Brothers enter into a contract with Dawood for Dawood to perform "various survey, engineering, and land development planning services" in connection with work performed by McCoy Brothers' at the Camp Hill Diner. In fact, McCoy Brothers only involvement with the Diner was to cleanup the debris and repair the building to the point where the natural elements would not penetrate the interior of the building. Thereafter, McCoy Brothers was not involved in any reconstruction or expansion work performed at the facilities. Dawood's services were specifically required for the expansion portion which did not involve McCoy Brothers. Hence, McCoy Brothers informed Dawood that they should deal directly with the owner and Dawood subsequently did deal with the owner. McCoy Brothers received no benefit from Dawood's services. 3 14. Denied. This is a conclusion of law and does not require a response. By way of further answer, McCoy Brothers is without sufficient information or knowledge to understand what Plaintiff believes. 15. Denied. The allegation in this paragraph is specifically denied. By way of further answer, this paragraph contains conclusions of law and does not require a response. 16. Denied. This paragraph contains conclusions of law and does not require a response. To the extent that this paragraph contains factual averments, the same are denied for the reasons set forth above. 17. Denied. This paragraph contains conclusions of law and does not require a response. To the extent that this paragraph contains factual averments, the same are denied for the reasons set forth above. WHEREFORE, McCoy Brothers respectfully requests that this Court enter judgment in its favor, together with costs and reasonable attorney fees and such other relief as this Court deems appropriate in light of the frivolous nature of the action being commenced by Dawood against McCoy Brothers. COUNT II (Unjust Enrichment) (Pleaded in the Alternative) 18. McCoy Brothers incorporate all of the above paragraphs as if fully set forth here at length. 19. Denied. This paragraph contains conclusions of law and does not require a response. To the extent that this paragraph contains factual averments, the same are denied for the reasons set forth above. WHEREFORE, McCoy Brothers respectfully requests that this Court enter judgment in its favor, together with costs and reasonable attorney fees and such other relief as this Court 4 deems appropriate in light of the frivolous nature of the action being commenced by Dawood against McCoy Brothers. NEW MATTER 20. Plaintiff has failed to state a cause of action against McCoy Brothers. 21. At no time has McCoy Brothers been enriched or benefited by any services allegedly provided by Dawood. to the owner of the Camp Hill Diner. 22. To the extent Dawood has provided services, it is believed that these services were deficient and not in accordance with industry standards or the agreement between Dawood and the owner justifying non-payment by the owner. 23. Dawood cannot collect from McCoy Brothers as there is a failure of consideration to McCoy Brothers. 24. Dawood's claims are barred by the doctrine of estoppel, waiver and laches, as well as unclean hands. 25. Dawood has failed to mitigate its damages. 26. McCoy Brothers does not owe Dawood any money. 27. To the extent Dawood has suffered any damages, the same were caused by parties other than McCoy Brothers. 5 WHEREFORE, McCoy Brothers respectfully requests that this Court enter judgment in its favor, together with costs and reasonable attorney fees and such other relief as this Court deems appropriate in light of the frivolous nature of the action being commenced by Dawood against McCoy Brothers. RHOADS & SINON LLP e . Fiormattei A 6rney I.D. No. 53847 Stephanie E. DiVittore Attorney I.D. No. 85906 One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Dated: May 1, 2008 Attorneys for Defendant McCoy Brothers, Inc. 6 VERIFICATION Greg Kuhn, being duly sworn according to law, deposes and says that he is authorized to make this affidavit on behalf of McCoy Brothers, Inc.; that lie has read the foregoing "Answer with New Matter" and that the facts contained herein are true and correct to the best of his knowledge, information and belief. This verif,Faiion is made subject to the penalties of I8 Pa. C.S. §4904 relating to unsworn falsifications to authorities. G . CERTIFICATE OF SERVICE I hereby certify that on May 1, 2008, a true and correct copy of "Defendant's Reply to Plaintiff's Complaint with New Matter" was served by means of regular United States mail, first class, postage prepaid, upon the following: Herbert P. Henderson, II, Esquire PECHT & ASSOCIATES, P.C. 55 West High Street Elizabethtown, PA 17022 Dean F. Piermattei, Esquire Attorney I.D. No. 53847 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant McCoy Brothers, Inc. DAWOOD ASSOCIATES, INC., Plaintiff V. McCOY BROTHERS, INC. Defendant V. HANY MAAWAD, Individually and t/d/b/a CAMP HILL DINER Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION LAW NO. 08-1056 NOTICE TO DEFEND TO THIRD PARTY DEFENDANT YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 402131.1 Dean F. Piermattei, Esquire Attorney I.D. No. 53847 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant McCoy Brothers, Inc. DAWOOD ASSOCIATES, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION LAW NO. 08-1056 McCOY BROTHERS, INC. Defendant V. HANY MAAWAD, Individually and t/d/b/a CAMP HILL DINER Additional Defendants ADDITIONAL DEFENDANT COMPLAINT NOW COMES, the Defendant McCoy Brothers, Inc., by and through counsel, Rhoads & Sinon LLP, and files the within Additional Defendant Complaint stating as follows: 1. The Plaintiff, Dawood Associates, Inc. (hereinafter "Dawood"), is a Pennsylvania business corporation, duly incorporated under the laws of this Commonwealth, with a principal place of business at 354 Alexander Spring Road, Suite 4, Carlisle, Pennsylvania, Cumberland County, 17013. 2. At all relevant times, Hany Maawad has been an adult individual who resides in Cumberland County, Pennsylvania. 3. On February 15, 2008, Dawood Associates, Inc. ("Dawood") filed a Complaint against McCoy Brothers alleging that it performed certain engineering services for the benefit of McCoy Brothers as it relates to the Camp Hill Diner. (A copy of the Plaintiff's Complaint is attached hereto as Exhibit "A" and incorporated herein by reference.) 4. On May 2, 2008, McCoy Brothers filed an Answer and New Matter to Dawood's Complaint alleging that it has never contracted with Dawood for engineering services at the Camp Hill Diner, nor did it receive any benefit from Dawood's services, but rather the contract, to the extent it existed, was between Dawood and the owner of the Camp Hill Diner. McCoy Brothers' Answer, is attached hereto as Exhibit "B" and is incorporated herein by reference. 5. At all relevant times, the Camp Hill Diner was owned by Hany Maawad, who has a business address for the Diner of 3449 Simpson Ferry Road, Hampden Township, Camp Hill, Pennsylvania 17011. 6. McCoy Brothers had a contract with Mr. Maawad to perform partial demolition work involving removal of debris and cleaning of the Camp Hill Diner, making the diner impervious to the natural elements, all following a fire which occurred at the Camp Hill Diner. McCoy Brothers, however, was not hired by Mr. Maawad or anyone who represented the Camp Hill Diner to perform any rebuilding or expansion work, which was undertaken at the Camp Hill Diner. 2- 7. During the course of McCoy Brothers' work, McCoy Brothers put Dawood in contact with representatives from the Camp Hill Diner as Mr. Maawad required certain civil engineering work to be performed as part of an expansion project to take place at the Camp Hill Diner. 8. It has been averred by Dawood that it performed certain civil engineering work related to construction at the Camp Hill Diner. To the extent that this work was performed, it was done so pursuant to a contract between Dawood and Mr. Maawad. 9. To the extent Dawood performed civil engineering services for the construction and expansion of the Camp Hill Diner, the benefit of the same was received by Mr. Maawad. 10. To the extent that it is judicially determined that Dawood Services, Inc. has a claim for services provided, Hany Maawad is directly liable to Dawood Services for said services in any amount judicially determined to be owing. In the alternative, to the extent it is judicially determined that McCoy Brothers is liable to Dawood Services on its claim, Hany Maawad is liable to McCoy Brothers for any amounts recovered by Dawood Engineering against McCoy Brothers. WHEREFORE, Third Party Plaintiff, McCoy Brothers, prays that judgment be entered directly against Hany Maawad for any sums judicially determined to be due and owing to Dawood, or alternatively to the extent that judgment is entered against McCoy Brothers, McCoy Brothers respectfully requests judgment over and against Third Party Defendant Hany Maawad -3- for the amount recovered by Plaintiff, together with costs and such other relief as deemed appropriate. RHOADS & SINLP a r; / Piermattei, Esquire Attorney I.D. No. 53847 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Dated: May 1, 2008 Attorneys for Defendant McCoy Brothers, Inc. -4-- VERIFICATION Greg Kuhn, being duly sworn according to law, deposes and says that he is authorized to make this affidavit on behalf of McCoy Brothers, I ,e.. that he has read the foregoing "Additional Defendant Complaint" and that the facts contained herein are true and correct to the best of his knowledge, information and belief. This verification is trade subject t the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications b auth)arities. , r ident of Design Inc. m ?. c. RECEIVED FLH 2 1 7008 MoCOY BROS. INC_ IN THE COURT OF COMMON PLEAS OI' CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC, Plaintiff VS. M000Y BROTHERS, INC_ No. NOTICE ("J You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against. you. You are warned that if you fail to do so the case. may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WRERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone (717) 249-3166 PECHT & ASSOCIATES, PC. By: Herbert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 Telephone: (717) 367-2800 Attorney T.D. #56304 TRUE COPY FROM RECORD In Testimony whereof, I :here unto set my hand and the seal of said Court at Carlisle, Pa. This -./ ....... day of„>-4.x......'.s Defendant .1.10 4AL ,. . Prothonotary tp-qty-??,?,r? le. D7 IT-k-U 7 VMU 1 r1rzMZ3 1IW-1 f 1 t c141 GU `J !JJ i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -- LAW DAWOOD ASSOCIATES, INC. Plaintiff No. vs. MCCOY BROTHERS, INC. Defendant : CtM-PLAINT 1. The Plaintiff, Dawood Associates, Inc., (hereinafter "Dawood"), is a Pennsylvania business corporation, duly incorporated. under the laws of this Commonwealth, with a principal place of business at 354 Alexander Spring Road., Suite 4, Carlisle, Pennsylvania, Cumberland County 17013. 2. Defendant herein is McCoy Brothers, Itic., (hereinafter "McCoy"), is believed to be a Pennsylvania business corporation with a last known principal place of business located at 1.514 Commerce Drive, Carlisle, Pennsylvania 17013. OPERATM F'A.CTS 3. Paragraphs 1 and 2 are incorporated herein by reference as set forth at length. 4. The Plaintiff, Dawood, is a licensed engineering firm which engages in the business of civil engineering, land development and planning, and surveying in connection with the development of real estate for both commercial and residential subdivisions and construction. 5. The Defendant, McCoy, is a general contractor. 6. On or about February 28, 2005, Greg Kuhn, a duly authorized agent of McCoy, did enter into and otherwise contract with Dawood to assist McCoy in obtaining approval of a. variance for improvements McCoy was contacted to complete for the Camp Hill Diner located at 3449 Simpson Ferry Road, Hampden Township, Camp Dill, Pennsylvania 17011. 7. Pursuant to fur oral agreement between Dawood and McCoy, and based upon their previous relationship. Dawood provided a series of engineering, land development planning acid surveying services for McCoy. r CI7-Ct7-GFJI'.10 1J • UU I'11..1.U I DftU 1 f1CftJ 11Y?. ? i ? tai ?'?`"' ? • "? 8. Dawood did perform the necessary work required of it in a satisfactory and professioml manner in accordance with standards promulgated by and accepted by standards of the industry for engineering, land development planning and surveying. True and correct copies of the consolidated invoices incorporating all invoices provided are attached hereto, made a part hereof, incorporated hereiu by reference and marked collectively as Exhibit "A". 9. The amount outstanding, due and owing for the work for services provided McCoy Brothers for the Camp Hill Diner job is $6,758.39 which amount is due and owing and currently past due, which amount includes all past due invoices and interest. 10. To date, despite Dawood's numerous demands for payment, McCoy has failed and otherwise refused to pay the total outstanding amount totaling $6,758.39. 11. Although McCoy claims the Camp Hill Diner agreed to pay the statement, at no time has McCoy provided any documentation. COUNTI (Breach of Contract) 12. Paragraphs 1 through l 1 are incorporated herein as if set foa.lh at length. 13. Plaintiff believes, and therefore avers, that McCoy entered into a contract with Dawood whereby Dawood agreed to perform various survey, engineering and land development planning services in connection with McCoy's proposed. Camp Hill Diner project in Hampden Township, Cumberland County, at or near 3449 Simpson Ferry Road. 14, Plaintiff believes and therefore avers, that failure to pay all invoices when submitted in a timely basis is a material breach of the parties' contract. 15. McCoy, at some point in time after the services were provided, advised Dawood that it received payment from the Camp Hill Diner and that Camp Hill agreed to pay Dawood directly. Dawood aelmowledges these terms, but never agreed to secure payment from Camp Hill Diner nor release McCoy from its contractual obligation. rtti-c:t7-Ge?L`lt7 1J • eiu ii?.?,u ? DfCU I f•1Cf[J 1IY'.. 1 1 1 ....?T1 LV.J? i . v.J 16. Plaintiff believes, and therefore avers, that McCoy has breached its contract with Dawood in that McCoy has failed and refused to pay the outstanding contract amount of $6,758.39. 17. As a result of the breach Plaintiff has suffered damagcs in the amount of $6,758,39. WHEREFORE, Plaintiff, Dawood Associates, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Defendant McCoy Brothers, in the amount of $6,758.39 plus costs and reasonable attorney fees, and such other relief as this Cotu't deems just and appropriate, which amount is within the arbitration limits of this county. COUNT H (Unjust Enrichment) (Pleaded in the Alternative) 18. Paragraphs 1 through 17 are incorporated herein by reference as set forth at length. 19. By failing to pay the contract amount for work performed by the Plaintiff, the Defendant: has been unjustly enriched in the amount of $6,758.39. WHEREFORE, Plaintiff, Dawood Associates, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Defendant McCoy Brothers, in the amount of $6,758.39 plus costs and. reasonable attorney fees, and such other relief as this Court deems just and appropriate, which amount is within the arbitration limits of this county. Re; PEA By Herbert P. Henderson, H, Esquire Attorney I.D. # 56304 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 FEB-2e-2008 13:00 MOCO`r' HRO I HERS 1 NC: VERFICATION The undersigned, Pamela E. Fisher, hereby verifies and states that: 1. She is the Vice-President of Dawood Associates, Inc.,- 2. She is authorized to make this Verification on behalf of Dawood; f 1 ( ' - I ---- i . -- 3. The factual statements set forth in the foregoing document are true and correct to the best of his knowledge, information and belief; 4. She is aware that false statements herein are made subject to the penalties of 18 Pa. CS, §4904, relating to unworn falsification to authorities. Dated: J-& 2 ed Pamela 1-7. Fisher FEB-2e-200e 13:00 MCCOY BROTHERS INC DAWOOD r associates, inc. amp Hill Diner, aint Joseph and. Mary, Inc. 449 Simpson Ferry Road amp Hill. PA 17011 STATEMENT February 8, 2006 i G41 ':UD r.U( CARLISLE ILEGIONAL OFFIC 354 ALEXANDER SPRING KOA1 SUITE CARLISLE, PA 1701: 717.249.9595 Voic 717.289.8088 FA; According to McCoy Brothers you reached a settlement on their invoices that did not include our services. We have been directed by McCoy Brothers that we were to forward these invoices to you for payment. Please note that we accomplished what we were asked to do. You received a variance from the Zoning Hearing Board and were allowed to re-open without the necessity of a land Development Plan. Inv. Date Project # Invoice # Project Description Invoice amount 02/28/05 105502.C 1 Cam Hill Diner 1765.53 03131/05 105502.C 2 Cam Hill Diner 1254.1*5 04/30/05 105502.C 3 Gam. Hill. Diner 2108..69 05/31/05. 105502.C 4 Cam Hill. Diner 402.57 BALANCE DUE $ 5530.94 We did received payment in the amount of $ 204.35 for our invoice # 5 dated August 31, 2005. Payment received from Camp Hill Diner on 11-09-05 Please review the attached iri.voice copies. If our information is incorrect and. payment has been maae,.please advise. Prompt payment of the outstanding balance would be appreciated. Thank you Pamela E. Fisher I 1 I G'•11 Gr_'?? ' v" 1"1L-L,IJY tt-oJ I ritrrti 11Vt- DAV OOD WSSOCIates, inc. :N G I N E E R S P L A N N E R S SURVEYORS - Statement 2/12/2007 Project # 105502,C McCoy Brothers Incorporated 1594 Commerce Drive PO Box 73.00 Carlisle PA 17013 CARLISLE RE-GIONAL OFF. The invoices on this statement are past due. Should you have any questions, and/or need to make payment arrangements, please call Pamela E. Fisher at (717p 249-9595. Project Name: Camp Hill Diner. Simpson Ferry Road - Hampden Twp. Date Original Invoice Information Invoice Amount Balance Due 02/28/2005 INV #05-02-5. Orig. Amount $1,765-53. 1,765.53 1,765.53 03/31/2005 INV #05-03-16, brig, Amount $1,254.15, 1254.15 3,019.68 04/30/2005 INV ;R#05-04-15. Orig. Amount $2,108.69. 2,108.69 5,128.37 05/31/2005 INV #05-05-13. Ong, Amount $402.57. 402.57 5,530.94 02/10/2007 INV #FC 16. Orig. Amount $1,227.45. Finance 1,227.45 6,758.39 Charge Total mount Due 4 $6,758.39+ The invoice(s) shown on this statement are. over 90 days,deliquent. Please note that finance charges have been added .to your account balance, If Payment IS received within. 10 days from the date of this statement, the- finance charges will be forgive. If payment, in full, is NOT received witfiln 10, days. from the date of this ststement•We will. be turning.ihis account over to our attorney for col.fection where you will be liable for the, original -irivoice,finance charges and our attorney fees. Please note: All the invoices you have-received for this project have indicated vur intent to charge 12%, interest on past.. due balances, Please forward your. payment to'Dawood-Associates, Inc. in the enclosed envelope. Thank you 31-60 DAYS PAST 6.1-90 DAYS PAST. OVER 90 DAYS. CURRENT Finance Charges Amount Due DUE : DUE PAST.:D.UE 0.00 1,227 45 .0.00 0.00. 5,530.94 $6,758.39 F ??1-?f?-?NlJtj 1.3: 01 I1II_tJJY bt^ fi 111tNb 1 N r z r ??+1 c? ? r. r INVO1cE] 8/31/2005 Project # 105502.0 Project Invoice # 5 Camp Hill Diner 3449 Simpson Ferry Road Camp Hill PA 17011 Camp Hill Diner - Simpson Ferry Road - AHam Township - Cumberland County Services rendered from last invoice forwcCoy Brothers through August 27, 2005 on the above referenced project. Services incl nce at ZoningHearing Meeting st Hampden Township and revisions to site plan requrry Seease, Hampden Township Engineer. Although this is invoice # 5 for this project, this is the 1st invoice forwarded directly to the Camp Hill Diner. The previous 4 invoices were send to McCoy Brothers, Inc. Should you have any questions on this invoice, please call. Please forward payment along with the yellow invoice copy in the enclosed envelope. Make sure checks are made payable to Dawood Associates and NOT Dawood Engineering. Thank you I Dawood Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 17013 Total amount due $204.35 NOV 0 y 2005 All invoices are due and payable upon receipt. All invoices paid after 30 days of Invoice date Will be charged interest. Interest is calculated at I% per month or 12% annually. f't1y-?tl-GC4Jh 1J • kll I'R-k_U I OrV-11 ncrt10 11r.- INVOICE 5/31/2005 Project # 105502.0 Project Invoice # 4 McCoy Brothers, Inc. 1514 Commerce Avenue P.O. Box 7300 Carlisle PA 17013 CAMP HILL DINER - Simpson Perry Road - Hampden Township - Cumberland County Services rendered in the attendance at the Hampden Township PC meeting, revisions to the ZHB Variance application (as a result of the denial at the PC meeting) and changes to the site plan. The revisions created the necessary parking spaces needed for the vestibule expansion and does not exceed the maximum lot coverage of 80%. Please forward payment to Dawood.Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 17013 Total amount due $402.57 All invoices are due and payable upon receipt AN invoices paid after 30 days of invoice date will be charged interest, Interest is calculated at 1% per month or 12% annually. Ftl?-?H-?bl9tJ 1.J ? kil 1'U.,.IU T L7K?J 1 I"ICKJ i iv?.? INVOICE 4/3012005 Project #105502.C Project Invoice # 3 McCoy Brothers, Inc. 1514 Commerce Avenue P.O. Box 7300 Carlisle PA 17013 CAMP HILL DINER - Simpson Ferry Road - Hampden Township - Cumberland County Services rendered from last invoice through April 30, 2005, Services include attendance at Hampden Township Planning Commission, meeting with clients and general contractor, review of parking requirements for this use and adjoining property, and revisions to sketch plan showing four (4) additional parking spaces as required by Zoning Ordinance. Revisions were also made to the Special Exception and Variances requested previously. Please forward payments in enclosed self-addressed envelope to: Dawood Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 17013.3193 Total amount due $2,108.69 All invoices are due and payable upon receipt All invoices paid alter 30 days of invoice date will be charged interest. Interest is calculated at 1% per month or 42% annually. r't?1-%I?-Gt'?'UrJ 1J • VJ1 I'11?t,?J ? D(SU ? ncl[J 11Y?.. INVOICE 3/31/2005 Project #105502.C Project Invoice # 2 McCoy Brothers, Inc. 1514 Commerce Avenue P.O. Box 7300 Carlisle PA 17013 CAMP HILL DINER - Simpson Ferry Road - Hampden Township - Cumberland County Services rendered from lest invoice through March 26, 2005 on the above referenced project. Services include, but not limited to_ Meetings and revisions to sketch plans related to the Special Exception Application filed with Hampden Township for the, expansion of the existing facility and variance for parking spaces. Please forward payments in enclosed self-addressed envelope to: Dawood Associates, Inc. 7 Valley Street - Suite 104 Carlisle PA 17013-3193 Total amount due $1,254.15 All invoices are due and payable upon receipt Ali invoices paid after 30 days of invoice date W11 be charged interest. lnterestis calculated at 1% per month or 12% annually. IIVVolCE 2/28/2005 Project #106502.C Project Invoice # 1 McCoy Brothers, Inc. 1514 Commerce Avenue P.O. Box 7300 Carlisle PA 17013 Camp Hill Diner - Simpson Ferry Road - Hampden Township - Cumberland County Services rendered through February 26, 2005 on the preparation of an application to the Zoning Hearing Board for a Special Exception to allow for the expansion of a non-conforming use and variance that will allow the construction of small expansions to the existing building footprint. Please forward payments in enclosed self-addressed envelope to: Dawood Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 17013-3193 Total amount due $1,765.53 All invoices are due and payable upon receipt All invoices paid after3bdays of invoice date will be charged interest. Interest is calculated at I% per month or 12% annually. TOTAL P.13 m ?pe Q DAWOOD ASSOCIATES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PA CIVIL ACTION LAW V. NO. 08-1056 McCOY BROTHERS, INC. Defendant NOTICE TO PLEAD To: Herbert P. Henderson, II, Esquire PECHT & ASSOCIATES, P.C. 55 West High Street Elizabethtown, PA 17022 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER TO PLAINTIFFS' COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, RHOADS & SINON LLP Date: S ? --(-D K B v: !"" ' Piermattei, Esquire Stephanie E. DiVittore, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Dean F. Piermattei, Esquire Attorney I.D. No. 53847 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant McCoy Brothers, Inc. DAWOOD ASSOCIATES, INC., Plaintiff V. McCOY BROTHERS, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION LAW NO. 08-1056 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER NOW COMES, Defendant, McCoy Brothers, Inc., by and through counsel, Rhoads & Sinon LLP, and files the within ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT, as follows 1. Admitted based on information and belief. 2. Admitted. 3. No response is required. 4. Admitted based on information and belief. 5. Admitted. 6. Denied as stated. Greg Kuhn did contact an agent for Dawood and inquired as to whether they could assist the owner of the Camp Hill Diner in obtaining approvals for a variance for expansion improvements that the owner of the Camp Hill Diner wished to undertake. McCoy Brothers at no time, however, entered into any agreement with Dawood Engineering either orally 402131.1 or in writing for Dawood's services, nor did McCoy Brothers ever benefit to any extent from any work performed by Dawood. 7. Admitted in part. It is admitted that Dawood provided engineering, land development planning and surveying services, but these services were not performed for McCoy Brothers. Rather, they were performed for the owner of the Camp Hill Diner. By way of further answer, see McCoy Brothers' response as set forth in paragraph 6 above. 8. Denied. The allegations in this paragraph are specifically denied as McCoy Brothers is unaware of the actual services performed by Dawood and is, therefore, without sufficient information or knowledge to form a belief as to the truth of the allegations. These services were performed for the owner of the Camp Hill Diner, and Plaintiff worked with the owner directly. At no time did McCoy Brothers bill or collect from the owner of the Camp Hill Diner for the services at issue in this Complaint. Dawood was instructed by McCoy Brothers to deal directly with the owner and did have direct interaction with the owner after McCoy Brothers was no longer involved in the Project. 9. Denied. This is a conclusion of law and does not require a response. To the extent that there are averments of fact contained herein, the same are specifically denied as there is no amount due and owing by McCoy Brothers to Dawood. Furthermore, McCoy Brothers did not receive any "services" from Dawood Engineering, but rather these services were provided directly to and for the benefit of the owner of the Camp Hill Diner. Dawood Engineering dealt directly with representatives for the Camp Hill Diner. 10. It is admitted that McCoy Brothers has not paid the amount demanded to Dawood, however, this refusal to pay is justified for the reasons set forth above. 2 11. Denied. The allegations in this paragraph are specifically denied. It has been explained to Dawood on a number of occasions that McCoy Brothers did not bill or collect for the services provided by Dawood, however, Dawood has chosen not to sue the party who received the benefit of their services. In fact, McCoy Brothers was only involved in the Project initially to do cleanup after a fire at the Camp Hill Diner and to secure the premises. McCoy Brothers was not involved in the reconstruction efforts or the expansion work which involved Dawood's services. COUNT I (Breach of Contract) 12. McCoy Brothers incorporates its answers in paragraphs 1 through 11 above as if fully set forth herein at length. 13. Denied. It is unknown what Plaintiff's believes and, therefore, this portion of the allegation is denied. By way of further answer, at no time did McCoy Brothers enter into a contract with Dawood for Dawood to perform "various survey, engineering, and land development planning services" in connection with work performed by McCoy Brothers' at the Camp Hill Diner. In fact, McCoy Brothers only involvement with the Diner was to cleanup the debris and repair the building to the point where the natural elements would not penetrate the interior of the building. Thereafter, McCoy Brothers was not involved in any reconstruction or expansion work performed at the facilities. Dawood's services were specifically required for the expansion portion which did not involve McCoy Brothers. Hence, McCoy Brothers informed Dawood that they should deal directly with the owner and Dawood subsequently did deal with the owner. McCoy Brothers received no benefit from Dawood's services. 3 r 14. Denied. This is a conclusion of law and does not require a response. By way of further answer, McCoy Brothers is without sufficient information or knowledge to understand what Plaintiff believes. 15. Denied. The allegation in this paragraph is specifically denied. By way of further answer, this paragraph contains conclusions of law and does not require a response. 16. Denied. This paragraph contains conclusions of law and does not require a response. To the extent that this paragraph contains factual averments, the same are denied for the reasons set forth above. 17. Denied. This paragraph contains conclusions of law and does not require a response. To the extent that this paragraph contains factual averments, the same are denied for the reasons set forth above. WHEREFORE, McCoy Brothers respectfully requests that this Court enter judgment in its favor, together with costs and reasonable attorney fees and such other relief as this Court deems appropriate in light of the frivolous nature of the action being commenced by Dawood against McCoy Brothers. COUNT II (Unjust Enrichment) (Pleaded in the Alternative) 18. McCoy Brothers incorporate all of the above paragraphs as if fully set forth here at length. 19. Denied. This paragraph contains conclusions of law and does not require a response. To the extent that this paragraph contains factual averments, the same are denied for the reasons set forth above. WHEREFORE, McCoy Brothers respectfully requests that this Court enter judgment in its favor, together with costs and reasonable attorney fees and such other relief as this Court 4 deems appropriate in light of the frivolous nature of the action being commenced by Dawood against McCoy Brothers. NEW MATTER 20. Plaintiff has failed to state a cause of action against McCoy Brothers. 21. At no time has McCoy Brothers been enriched or benefited by any services allegedly provided by Dawood to the owner of the Camp Hill Diner. 22. To the extent Dawood has provided services, it is believed that these services were deficient and not in accordance with industry standards or the agreement between Dawood and the owner justifying non-payment by the owner. 23. Dawood cannot collect from McCoy Brothers as there is a failure of consideration to McCoy Brothers. 24. Dawood's claims are barred by the doctrine of estoppel, waiver and laches, as well as unclean hands. 25. Dawood has failed to mitigate its damages. 26. McCoy Brothers does not owe Dawood any money. 27. To the extent Dawood has suffered any damages, the same were caused by parties other than McCoy Brothers. 5 WHEREFORE, McCoy Brothers respectfully requests that this Court enter judgment in its favor, together with costs and reasonable attorney fees and such other relief as this Court deems appropriate in light of the frivolous nature of the action being commenced by Dawood against McCoy Brothers. RHOADS & SINON LLP Dated: May 1, 2008 B-r? 1. e ?ermattei A mey I.D. No. 53847 Stephanie E. DiVittore Attorney I.D. No. 85906 One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant McCoy Brothers, Inc. 6 VERIFICATION Greg Kuhn, being duly sworn according to law, deposes and says that he is authorized to make this affidavit on behalf of McCoy Brothers, Inc.; that he has read the foregoing "Answer with New Matter" and that the facts contained herein are true and correct to the best of his knowledge, information and belief. This verifipation is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications td authorities. i' CERTIFICATE OF SERVICE I hereby certify that on May 1, 2008, a true and correct copy of "Defendant's Reply to Plaintiff's Complaint with New Matter" was served by means of regular United States mail, first class, postage prepaid, upon the following: Herbert P. Henderson, II, Esquire PECHT & ASSOCIATES, P.C. 55 West High Street Elizabethtown, PA 17022 i' CERTIFICATE OF SERVICE I hereby certify that on May 5, 2008, a true and correct copy of "Additional Defendant Complaint" was served by means of regular United States mail, first class, postage prepaid, upon the following: Herbert P. Henderson, II, Esquire PECHT & ASSOCIATES, P.C. 55 West High Street Elizabethtown, PA 17022 And by United States mail, Certified / Return Receipt Requested, postage prepaid upon the following: Hany Maawad c/o Camp Hill Diner 3449 Simpson Ferry Road Camp Hill, PA 17011 N C7 t P y? 4 ?^ f V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff No. 08-1056 VS. MCCOY BROTHERS, INC. Defendant RESPONSE TO NEW MATTER 20. DENIED. It is specifically denied that Plaintiff has failed to state a cause of action against McCoy Brothers. Strict proof otherwise is demanded at the time of trial. 21. DENIED. It is specifically denied that McCoy Brothers has not been unjustly enriched or received any benefit of the services provided by Plaintiff. Strict proof otherwise id demanded at the time of trial. 22. DENIED. It is specifically denied that Plaintiff provided deficient services not in accordance with industry standards that would justify non-payment by McCoy Brothers or Camp Hill Diner. Strict proof otherwise is demanded at the time of trial. 23. No answer required. To the extent an answer is require, the same is DENIED and strict proof otherwise is demanded at the time of trial. 24. DENIED. It is specifically denied that Plaintiff's claim is barred by the doctrine of estoppel, waiver and laches and unclean hands. Strict proof otherwise is demanded at the time of trial. 25. DENIED. It is specifically denied that Plaintiff's claims are barred for any reason including but not limited to any alleged duty to mitigate. It is further denied that Plaintiff failed to mitigate its damages and further denied that Plaintiff had any obligation to mitigate any damages under the circumstances. Strict proof otherwise is demanded at the time of trial. 26. DENIED. To the contrary, McCoy Brothers does owe Plaintiff the damages suffered. 27. DENIED. It is specifically denied that McCoy Brothers did not contribute to the damages suffered by Plaintiff. Strict proof otherwise is demanded at the time of trial. WHEREFORE, Plaintiff, Dawood Associates, Inc. demands judgment in its favor as set forth in its Complaint. Respectfully Submitted, By: Herbert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 717-367-2800 ID#56304 40 '0? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff No. 08-1056 vs. AFFIDAVIT OF SERVICE MCCOY BROTHERS, INC. Defendant Camp Hill Diner 3449 Simpson Ferry Road Camp Hill, PA 17011 Dean F. Piermattei Rhoads & Sinon LLP Twelfth Floor One South Market Square Harrisburg, PA 17108-1146 Respectfully Submitted, PECHT & ASSOCIATES, PC By: Attorney I.D. # 56304 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 a Dean F. Piermattei, Esquire Attorney I.D. No. 53847 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant McCoy Brothers, Inc. DAWOOD ASSOCIATES, INC., Plaintiff V. McCOY BROTHERS, INC. Defendant V. HANY MAAWAD, Individually and t/d/b/a CAMP HILL DINER Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION LAW NO. 08-1056 PRAECIPE TO REINSTATE ADDITIONAL DEFENDANT COMPLAINT TO: THE PROTHONOTARY Kindly reinstate the Additional Defendant Complaint in the above-captioned matter which was originally filed on May 6, 2008. RHOADS & SINON Bv? C_---'Dean F Stephanie E. DiVittore One South Market Square P.O. Box 1146 Harrisburg, PA 17108 (717) 233-5731 Attorneys for Defendant McCoy Brothers, Inc. 693447.1 ,j(2 -e (7 / -,e -#-d V'l'NV A'1),SNN d 90 :Zl Wd C ! Nnr 6OQt MViQ 'Uf FF. Cbd 3HI JO r TRUE T ROM RECORI iri v1111.Iir?wt:?. ?Ivfts 41 d , R Dean F. Piermattei, Esquire Attorney I.D. No. 53847 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant McCoy Brothers, Inc. DAWOOD ASSOCIATES, INC., Plaintiff V. McCOY BROTHERS, INC. Defendant V. HANY MAAWAD, Individually and t/d/b/a CAMP HILL DINER Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION LAW NO. 08-1056 NOTICE TO DEFEND TO THIRD PARTY DEFENDANT YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 402131.1 Dean F. Piennattei, Esquire Attorney I.D. No. 53847 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant McCoy Brothers, Inc. DAWOOD ASSOCIATES, INC., Plaintiff V. McCOY BROTHERS, INC. Defendant V. HANY MAAWAD, Individually and t/d/b/a CAMP HILL DINER Additional Defendants 0 _ ?? w° O 5; c _ C-) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION LAW NO. 08-1056 ADDITIONAL DEFENDANT COMPLAINT NOW COMES, the Defendant McCoy Brothers, Inc., by and through counsel, Rhoads & Sinon LLP, and files the within Additional Defendant Complaint stating as follows: 1. The Plaintiff, Dawood Associates, Inc. (hereinafter "Dawood"), is a Pennsylvania business corporation, duly incorporated under the laws of this Commonwealth, with a principal place of business at 354 Alexander Spring Road, Suite 4, Carlisle, Pennsylvania, Cumberland County, 17013. a 2. At all relevant times, Hany Maawad has been an adult individual who resides in Cumberland County, Pennsylvania. 3. On February 15, 2008, Dawood Associates, Inc. ("Dawood") filed a Complaint against McCoy Brothers alleging that it performed certain engineering services for the benefit of McCoy Brothers as it relates to the Camp Hill Diner. (A copy of the Plaintiff's Complaint is attached hereto as Exhibit "A" and incorporated herein by reference.) 4. On May 2, 2008, McCoy Brothers filed an Answer and New Matter to Dawood's Complaint alleging that it has never contracted with Dawood for engineering services at the Camp Hill Diner, nor did it receive any benefit from Dawood's services, but rather the contract, to the extent it existed, was between Dawood and the owner of the Camp Hill Diner. McCoy Brothers' Answer, is attached hereto as Exhibit "B" and is incorporated herein by reference. 5. At all relevant times, the Camp Hill Diner was owned by Hany Maawad, who has a business address for the Diner of 3449 Simpson Ferry Road, Hampden Township, Camp Hill, Pennsylvania 17011. 6. McCoy Brothers had a contract with Mr. Maawad to perform partial demolition work involving removal of debris and cleaning of the Camp Hill Diner, making the diner impervious to the natural elements, all following a fire which occurred at the Camp Hill Diner. McCoy Brothers, however, was not hired by Mr. Maawad or anyone who represented the Camp Hill Diner to perform any rebuilding or expansion work, which was undertaken at the Camp Hill Diner. 2- 7. During the course of McCoy Brothers' work, McCoy Brothers put Dawood in contact with representatives from the Camp Hill Diner as Mr. Maawad required certain civil engineering work to be performed as part of an expansion project to take place at the Camp Hill Diner. 8. It has been averred by Dawood that it performed certain civil engineering work related to construction at the Camp Hill Diner. To the extent that this work was performed, it was done so pursuant to a contract between Dawood and Mr. Maawad. 9. To the extent Dawood performed civil engineering services for the construction and expansion of the Camp Hill Diner, the benefit of the same was received by Mr. Maawad. 10. To the extent that it is judicially determined that Dawood Services, Inc. has a claim for services provided, Hany Maawad is directly liable to Dawood Services for said services in any amount judicially determined to be owing. In the alternative, to the extent it is judicially determined that McCoy Brothers is liable to Dawood Services on its claim, Hany Maawad is liable to McCoy Brothers for any amounts recovered by Dawood Engineering against McCoy Brothers. WHEREFORE, Third Party Plaintiff, McCoy Brothers, prays that judgment be entered directly against Hany Maawad for any sums judicially determined to be due and owing to Dawood, or alternatively to the extent that judgment is entered against McCoy Brothers, McCoy Brothers respectfully requests judgment over and against Third Party Defendant Hany Maawad -3- for the amount recovered by Plaintiff, together with costs and such other relief as deemed appropriate. RHOADS & SINP*LLP Piermattei, Esquire Attorney I.D. No. 53847 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Dated: May 1, 2008 Attorneys for Defendant McCoy Brothers, Inc. -4- VERIFICATION Greg Kuhn, being duly sworn according to law, deposes and says that he is authorized to make this affidavit on behalf of McCoy Brothers, Inc-;. that he has read the foregoing "Additional Defendant Complaint" and that the facts contained herein are true and correct to the best of his knowledge, information and belief. This verification is made subject tp the penalties of 18 Pa. C. S. §4904 relating to unsworn falsifications 6 autwties. G =V+Piesident of Design But d / r hers. Inc. EXHIBIT "A" RECEIVED FtH 2 i 2008 MOCOY BROS. INC. IN TI4E COURT OF COMMON PLEAS OI, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff No. VS. MCCOY BROTHERS, INC_ Defend ant NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following, pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing ui writing with the Court your defense or objections to the claims set forth against, you. You are warned that if you fail to do so the ease, may proceed without you and a judgment may be entered against. you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important: to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SLT FORTH BELOW TO FIND OU'T WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S, Bedford Street Carlisle, PA 17013 Telephone (717) 249-3166 PECHT & ASSOCIATES, PC By- Herbert P. Henderson, 13, Esquire Attorney for Plaintiff 55 West High street Elizabethtown, PA 17022 Telephone: (717) 367-2800 Attorney T,D. #56304 "RUE COPY FROM RECORD in Testimony whereof, l i7ere unto set my hand and the seal of said Cuurt at Carlisle, Pa. This .... /.-....... day of..U444........, ................. Prothonotary I-tt-?tJ-?l'lL'lly 1G • .? I'V. t_IJ 1 bK,IJ 1 11Gtc.? 11V1 s 1 r c+1 ct>_ r . U-) Irr THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -- LAW DAWOOD ASSOCIATES, INC. : Plaintiff No. vs. MCCOY BROTHERS, INC. Defendant ('0M-PLAINT 1. The Plaintiff, Dawood Associates, Inc., (hereinafter "Dawood"), is a Pennsylvania business corporation, duly incorporated under the laws of this Commonwealth, with a principal place of business at 354 Alexander Spring Road, Suite 4, Carlisle, Pennsylvania, Cumberland County 17013. 2. Defendant herein is McCoy Brothers, Inc., (hereinafter "McCoy"), is believed to be a Pennsylvania business corporation with a Last lmown principal place of business located at 1.514 Commerce Drive, Carlisle, Pennsylvania 17013. OPERATTW; FACTS 3. Paragraphs 1 and 2 are incorporated herein by reference as set forth at length. 4. The Plaintiff, Dawood, is a licensed engineering firm whielh engages in the business of civil engineering, land development. and planning, and surveying in connection with the development of real estate for both commercial and residential subdivisions and construction. 5. The Defendant, McCoy, is,' general contractor. 6. On or about February 28, 2005, Greg Kuhn, a duly authorized agent of McCoy, did enter into and otherwise contract with Dawood to assist McCoy in obtaining approval of a variance for improvements McCoy was contacted to complete for the Camp Hill Diner located at 3449 Simpson Ferry Road, Hampden Township, Camp Mill, Pennsylvania 17011. 7. Pursuant to tai oral agreement between Dawood and McCoy, and based upon their previous relationship. Dawood provided a series of egineering, land development planning and surveying services for McCoy. r r'?tTGC1-GUl'Jf7 l.J • t:11J I'IV..IJ I DRU I f1Gf<.J 11 Y'.. I i c.-+i G.IJ.JJ . v? S. Dawood did perform the necessary work required of it in a satisfactory and professional manner in accordance with standards promulgated by and accepted by standards of the industry for engineering, land dcvelopment planning and surveying. True and correct copies of the consolidated invoices incorporating all invoices provided are attached hereto, made a part hereof, incorporated herein by reference and marked collectively as Exhibit "A". 9. The amount outstanding, due and owing for the work for services provided McCoy Brothers for the Camp Hill Diner job is $6,758.39 which amount is due and owing and currently past due, which amount includes all past due invoices and interest. 10. To date, despite Dawood's numerous demands for payment, McCoy has failed and otherwise refused to pay the total outstanding amount totaling $6,758.39. 11. Although McCoy claims the Camp Hill Diner agreed to pay the statement, at no time has McCoy provided any documentation. ! 0_ (Breach of Contract) 12. Paragraphs 1 through 11 are incorporated herein as if set fbith at length. 13. Plaintiff believes, and therefore avers, that McCoy entered into a contract with Dawood whereby Dawood agreed to perform various survey, engineering and land development planning services in connection with McCoy's proposed Camp Hill Diner project in Hampden Township, Cumberland County, at or near 3449 Simpson Ferry Road. 14. Plaintiff believes and therefore avers, that failure to pay all invoices when submitted in a timely basis is a material breach of the parties' contract. 15. McCoy, at some point in time after the services were provided, advised Dawood that it received payment from the Camp Hill Diner and that Camp ]-Till agreed to pay Dawood directly. Dawood aclmowledges these terms, but never agreed to secure payment. from. Camp Hill Diner nor release McCoy from its contractual obligation. r`tb-?d-ceuo 1 J - uu ri?? u DfCU I rIC1CJ i it --, - --- 16. Plaintiff believes, and therefore avers, that McCoy has breached its contract with Dawood in that McCoy has failed and refused to pay the outstanding contract amount of $6,758.39. 17: As a result of the breach Plaintiff has suffered damages in the amount of $6,758.39. VvIHEREFORE, Plaintiff, Dawood Associates, Inc. respectfully requests that this Nonorable Court enter judgment in its favor and against Defendant McCoy Brothers, in the amount of $6,758.39 plus costs and reasonable attorney fees, and such other relief as this Court deems just and appropriate, which amount is within the arbitration limits of this county. COUNT II (Unjust Enrichment) (Pleaded in the Alternative) 18. Paragraphs 1 through 17 are incorporated herein by reference as set forth at length. 1.9. By failing to pay the contract amount for work performed by the Plaintiff, the Defendant has been unjustly enriched in the amount. of $6,758.39. WHEREFORE, Plaintiff, Dawood Associates, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Defendant McCoy Brothers, in the amount of $6,758.39 plus costs and reasonable attorney fees, and such other relief as this Court deems just and appropriate, which amount is within the arbitration limits of this county. Respectfully Submitted; PECHT & ASSOC16X-L'S-, By: Herbert P. Henderson, 11, Esquire Attorney I.D. # 56304 55 West High Street Elizabethtown, PA 17022 (717)367-2800 FEB-28-2008 13: 00 MCCOY BRO 1 HEHS 1 N VERFICATION The undersigned, Pamela E. Fisher, hereby verifies and states that: I . She is the Vice-President of Dawood Associates, Inc.; 2. She is authorized to make this Verification on behalf of Dawood; 3. The factual statements set forth in the foregoing document are true and correct to the best of his knowledge, information and belief, 4. She is aware that false statements herein are made subject to the penalties of 18 Pa. C. S. §4904, relating to unworn falsification to authorities. Pamela E. Fisher Dated: .T k Z- ?-, ?ey ,FEB-c^e-c00e 1:3:00 MCCOY BROTHERS INC DAWOOD associates, inc. k K. Camp Hill Diner Saint Joseph and Mary, Inc. 3449 Simpson Ferry Road Camp Hill. PA 17011 ST&TEMENT February 8, 2006 (If e4i e-UD r.Ur CARLISLE ICE•GIONAL OFFIC 354 ALEXANDER SPRING ROAE SUITE, CARLISLE, PA 1701, 717.240.9595 Voic 717,249,8088 ra„ According to McCoy Brothers you reached a settlement on their invoices that did not include our services. We have been directed by McCoy Brothers that we were to forward these invoices to you for payment. Please note that we accomplished what we were asked to do. You received a variance from the Zoning Hearing Board and were allowed to re-open without the necessity of a Land Development Plan. Inv. Date Project # Invoice # Project Description Invoice amount 02/28/05 105502_C 1 Cam Hill Diner 1765.53 03131/05 105502_C 2 Carn Hill Diner 1254.1*5 04/30/05 1 105502.C 3 Camp Hill. Diner 2108..69 05/31/0 5. 105502.C a Cam Hill Diner - u W 402.57 1 BALANCE DUIT $ 5530.94 We did received payment in the amount of $ 204.35 for our invoice # 5 dated August 31, 2005. Payment received from Camp Hill Diner on 11-09-05 . Please review the attached invoice copies. If our information is incorrect and payment has been made,.please advise. Prompt payment of the outstanding balance would be appreciated. Thank, you Pamela E. Fisher IrIIJL.IJ Y YJNIJ I rttr;ti ! 141 i 1 i G-.1 GCJJ./ • ?? FHB-2e-c0UH 1..i; OU x DAWOOD 1.: UssoMcCoyctate s, inBrothersc. Incorporated 1514 Commerce Drive PO Box 73,00 Carlisle PA 17013 E N GIN E E R S PLAN N E ?IS S U RV E Y U R $ Statement 2/12/2007 Project # 105502.C CARLISLE REGIONAL OFF The invoices on this statement are past due. Should you have any questions andlor need to make payment arrangements, please call Pamela E. Fisher at (717)' 249-9595. Project Name: Camp Hill Diner: Simpson Ferry Road - Hampden Twp. Date I Origin.al'lnvoice Information I Invoice Amount I Balance Due 02/28/2005 INV #05-02-8. Orig. Amount $1,765.53. 1,765.53 1,765.53 03/31/2005 INV #05-03-16, brig, Amount $1,254.15. 1,254.15 3,019.68 04/30/2005 INV #05-04-15. Orig. Amount $2,105.69. 2,108.69 5,128.37 0513112005 INV #05-05-13. Orig. Amount $402.57. 402.57 5,530.94 02/10/2007 INV #FC 16. Orig. Amount $1,227.45. Finance 1,227.45 6,758.39 Charge Tota0mount Due , $6,758.39 Faccount invoice(s) shown on this staEernent are over 90 days,deliquent. Please note that finance charges h . e'been addeo our account balance. If payment IS received within. 10 days from the date of this statement,..the finance charges i0i forgive. If payment, in ttlll, is NOT received. within 10 days. from the date of this statement we will be'turnirig.thls over to our attorney for collection where you will. be liable for the original invoice, finance charges and our rney fees. Please note: All the invoices you have-received for this project have indicated our intent to charge 120/6- interest on past .. due balances.. Please forward your payment to. Dawood Associates, Inc. in the edclosed envelope, Thank you 31 -80 DAYS PAST 8'I-90 DAYS PAST . OVER 90 DAYS CURRENT Finance Charges ` Amount Due DUE-', DUE PAST;DUE 0.00 1'1227.45 0.00 0.00 5,530.91 $61758.39. I _?: 01 I`1U_IJI' JyKIJ I HtKS IM_ r 1 r eL41 INVOICE) 8/31/2005 Project # 105502.C Project Invoice # 5 Camp Hill Diner 3449 Simpson Ferry Road Camp Hill PA 17011 Camp Hill Diner - Simpson Ferry Road - AHam Township - Cumberland County Services rendered from last invoice forwcCoy Brothers through August 27, 2005 on the above referenced project. Services ihcl nce at Zoning Hearing Meeting at Hampden Township and revisions to site plan requrry Spease, Hampden Township Engineer. Although this is invoice # 5 for this project, this is the 1st invoice forwarded directly to the Camp Hill Diner. The previous 4 invoices were send to McCoy Brothers, Inc. Should you have any questions on this invoice, please call. Please forward payment along with the yellow invoice copy in the enclosed envelope. Make sure checks are made payable to Dawood Associates and NOT Dawood Engineering. Thank you I Dawood Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 17013 Total amount due $204.35 RIMS NOV 0 y 2005 All invokes are due and payable upon receipt. All invoices paid after 30 days of Invoice date will be charged inten:st. Interest is calculated at I% per month or 12% annually. F LYi-GIJ? GY_IU 7 I J- lI 1 r itt t-u i or!, 1 rx-f. 11m% INVOICE 5/31/2005 Project # 105502.0 Project Invoice # 4 McCoy Brothers, Inc. 1514 Commerce Avenue P.O. Box 7300 Carlisle PA 17013 CAMP HILL DINER - Simpson Ferry Road - Hampden Township - Cumberland County Services rendered in the attendance at the Hampden Township PC meeting, revisions to the ZHB Variance application (as a result of the denial at the PC meeting) and changes to the site plan. The revisions created the necessary parking spaces needed for the vestibule expansion and does not exceed the maximum lot coverage of 80%_ Please forward payment to Dawood.Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 17013 Total amount due $402.57 All invoices are due and payable upon receipt. All invoices paid after 30 days of invoice date will be charged interest. Interest is calculated at 1% permontl) or 12% annually. F ?b-?1?-???l7h 1.-); Ui 111-Uli1 t1M.U 1 ntR.? 1l4L. INVOICE 4/30/2005 Project #105502.C Project Invoice # 3 McCoy Brothers, Inc. 1514 Commerce Avenue P.O. Box 7300 Carlisle PA 17013 CAMP HILL DINER - Simpson Ferry Road - Hampden Township - Cumberland County Services rendered from last invoice through April 30, 2005. Services include attendtince at Hampden Township Planning Commission, meeting with clients and general contractor, review of parking requirements for this use and adjoining property, and revisions to sketch plan showing four (4) additional parking spaces as required by Zoning Ordinance. Revisions were also made to the Special Exception and Variances requested previously- Please forward payments in enclosed self-addressed envelope to: Dawood Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 170134193 Total amount due $2,108.69 All invoices are due and payable upon receipt. All invoices paid after 3o days of invoice date will be charged interest. Interest is calculated at I% pernwntl) or 92% annually. 1 tH-=rJ-Gl'IUrJ 1 J• VJ 1 ll ?JJ I Drt i_ I nc1C 7 1 I Y INVOICE 3/31/2005 Project #105502.C Project Invoice # 2 McCoy Brothers, Inc. 1514 Commerce Avenue P.O. Box 7300 Carlisle PA 17013 CAMP HILL. DINER - Simpson Ferry Road - Hampden Township - Cumberland County Services rendered from last invoice through March 26, 2005 on the above referenced project. Services include, but not limited to: Meetings and revisions to sketch plans related to the Special Exception Application filed with Hampden Township for the, expansion of the existing facility and variance for parking spaces. Please forward payments in. enclosed self-addressed envelope to: Dawood Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 17013-3193 Total amount due $1,254.15 All invoices are due and payable upon receipt All invoices paid alter 30 days of invoice dale will be charged interest. Interest is calculated at I% per month or 12% annually. INVOICE 2/28/2005 Project #106602.C Project Invoice # 1 McCoy Brothers, Inc. 1514 Commerce Avenue P.O. Box 7300 Carlisle PA 17013 Camp Hill Diner - Simpson Ferry Road - Hampden Township - Cumberland County Services rendered through February 26, 2005 on the preparation of an application to the Zoning Hearing Board for a Special Exception to allow for the expansion of a non-conforming use and variance that will allow the construction of small expansions to the existing building footprint. Please forward payments in enclosed self-addressed envelope to: Dawood Associates, Inc. 1 Valley Street - Suite 104 Carlisle PA 17013-3193 Total amount due $1,765.53 All invoices are due and payable upon receipt. M invoices paid after304ays ofi.rnvoiee date will be charged interest. Interest is calculated at I% par month or 12% annually. TOTAL P.13 EXHIBIT "B" DAWOOD ASSOCIATES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PA CIVIL ACTION LAW V. NO. 08-1056 McCOY BROTHERS, INC. Defendant NOTICE TO PLEAD To: Herbert P. Henderson, II, Esquire PECHT & ASSOCIATES, P.C. 55 West High Street Elizabethtown, PA 17022 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER TO PLAINTIFFS' COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, Date: S 1 ----) K RHOj?R$ & SINON LLP By- ?fF. Piermattei, Esquire Stephanie E. DiVittore, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Dean F. Piermattei, Esquire Attorney I.D. No. 53847 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant McCoy Brothers, Inc. DAWOOD ASSOCIATES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PA CIVIL ACTION LAW V. NO. 08-1056 McCOY BROTHERS, INC. Defendant DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER NOW COMES, Defendant, McCoy Brothers, Inc., by and through counsel, Rhoads & Sinon LLP, and files the within ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT, as follows 1. Admitted based on information and belief. 2. Admitted. 3. No response is required. 4. Admitted based on information and belief. 5. Admitted. 6. Denied as stated. Greg Kuhn did contact an agent for Dawood and inquired as to whether they could assist the owner of the Camp Hill Diner in obtaining approvals for a variance for expansion improvements that the owner of the Camp Hill Diner wished to undertake. McCoy Brothers at no time, however, entered into any agreement with Dawood Engineering either orally 402131.1 or in writing for Dawood's services, nor did McCoy Brothers ever benefit to any extent from any work performed by Dawood. 7. Admitted in part. It is admitted that Dawood provided engineering, land development planning and surveying services, but these services were not performed for McCoy Brothers. Rather, they were performed for the owner of the Camp Hill Diner. By way of further answer, see McCoy Brothers' response as set forth in paragraph 6 above. 8. Denied. The allegations in this paragraph are specifically denied as McCoy Brothers is unaware of the actual services performed by Dawood and is, therefore, without sufficient information or knowledge to form a belief as to the truth of the allegations. These services were performed for the owner of the Camp Hill Diner, and Plaintiff worked with the owner directly. At no time did McCoy Brothers bill or collect from the owner of the Camp Hill Diner for the services at issue in this Complaint. Dawood was instructed by McCoy Brothers to deal directly with the owner and did have direct interaction with the owner after McCoy Brothers was no longer involved in the Project. 9. Denied. This is a conclusion of law and does not require a response. To the extent that there are averments of fact contained herein, the same are specifically denied as there is no amount due and owing by McCoy Brothers to Dawood. Furthermore, McCoy Brothers did not receive any "services" from Dawood Engineering, but rather these services were provided directly to and for the benefit of the owner of the Camp Hill Diner. Dawood Engineering dealt directly with representatives for the Camp Hill Diner. 10. It is admitted that McCoy Brothers has not paid the amount demanded to Dawood, however, this refusal to pay is justified for the reasons set forth above. 2 C a 11. Denied. The allegations in this paragraph are specifically denied. It has been explained to Dawood on a number of occasions that McCoy Brothers did not bill or collect for the services provided by Dawood, however, Dawood has chosen not to sue the party who received the benefit of their services. In fact, McCoy Brothers was only involved in the Project initially to do cleanup after a fire at the Camp Hill Diner and to secure the premises. McCoy Brothers was not involved in the reconstruction efforts or the expansion work which involved Dawood's services. COUNTI (Breach of Contract) 12. McCoy Brothers incorporates its answers in paragraphs 1 through 11 above as if fully set forth herein at length. 13. Denied. It is unknown what Plaintiff's believes and, therefore, this portion of the allegation is denied. By way of further answer, at no time did McCoy Brothers enter into a contract with Dawood for Dawood to perform "various survey, engineering, and land development planning services" in connection with work performed by McCoy Brothers' at the Camp Hill Diner. In fact, McCoy Brothers only involvement with the Diner was to cleanup the debris and repair the building to the point where the natural elements would not penetrate the interior of the building. Thereafter, McCoy Brothers was not involved in any reconstruction or expansion work performed at the facilities. Dawood's services were specifically required for the expansion portion which did not involve McCoy Brothers. Hence, McCoy Brothers informed Dawood that they should deal directly with the owner and Dawood subsequently did deal with the owner. McCoy Brothers received no benefit from Dawood's services. 3 14. Denied. This is a conclusion of law and does not require a response. By way of further answer, McCoy Brothers is without sufficient information or knowledge to understand what Plaintiff believes. 15. Denied. The allegation in this paragraph is specifically denied. By way of further answer, this paragraph contains conclusions of law and does not require a response. 16. Denied. This paragraph contains conclusions of law and does not require a response. To the extent that this paragraph contains factual averments, the same are denied for the reasons set forth above. 17. Denied. This paragraph contains conclusions of law and does not require a response. To the extent that this paragraph contains factual averments, the same are denied for the reasons set forth above. WHEREFORE, McCoy Brothers respectfully requests that this Court enter judgment in its favor, together with costs and reasonable attorney fees and such other relief as this Court deems appropriate in light of the frivolous nature of the action being commenced by Dawood against McCoy Brothers. COUNT II (Unjust Enrichment) (Pleaded in the Alternative) 18. McCoy Brothers incorporate all of the above paragraphs as if fully set forth here at length. 19. Denied. This paragraph contains conclusions of law and does not require a response. To the extent that this paragraph contains factual averments, the same are denied for the reasons set forth above. WHEREFORE, McCoy Brothers respectfully requests that this Court enter judgment in its favor, together with costs and reasonable attorney fees and such other relief as this Court 4 deems appropriate in light of the frivolous nature of the action being commenced by Dawood against McCoy Brothers. NEW MATTER 20. Plaintiff has failed to state a cause of action against McCoy Brothers. 21. At no time has McCoy Brothers been enriched or benefited by any services allegedly provided by Dawood to the owner of the Camp Hill Diner. 22. To the extent Dawood has provided services, it is believed that these services were deficient and not in accordance with industry standards or the agreement between Dawood and the owner justifying non-payment by the owner. 23. Dawood cannot collect from McCoy Brothers as there is a failure of consideration to McCoy Brothers. 24. Dawood's claims are barred by the doctrine of estoppel, waiver and laches, as well as unclean hands. 25. Dawood has failed to mitigate its damages. 26. McCoy Brothers does not owe Dawood any money. 27. To the extent Dawood has suffered any damages, the same were caused by parties other than McCoy Brothers. 5 WHEREFORE, McCoy Brothers respectfully requests that this Court enter judgment in its favor, together with costs and reasonable attorney fees and such other relief as this Court deems appropriate in light of the frivolous nature of the action being commenced by Dawood against McCoy Brothers. RHOADS & SINON LLP Btr. e Pfermattei A V?e?y I.D. No. 53847 Stephanie E. DiVittore Attorney I.D. No. 85906 One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Dated: May 1, 2008 Attorneys for Defendant McCoy Brothers, Inc. 6 VERIFICATION Greg Kuhn, being duly sworn according to law, deposes and says that he is authorized to make this affidavit on behalf of McCoy Brothers, Inc.; that he has read the foregoing "Answer with New Matter" and that the facts contained herein are true and correct to the best of his knowledge, information and belief. This verification is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications .0 authorities. f, CERTIFICATE OF SERVICE I hereby certify that on May 1, 2008, a true and correct copy of "Defendant's Reply to Plaintiffs Complaint with New Matter" was served by means of regular United States mail, first class, postage prepaid, upon the following: Herbert P. Henderson, II, Esquire PECHT & ASSOCIATES, P.C. 55 West High Street Elizabethtown, PA 17022 J CERTIFICATE OF SERVICE I hereby certify that on May 5, 2008, a true and correct copy of "Additional Defendant Complaint" was served by means of regular United States mail, first class, postage prepaid, upon the following: Herbert P. Henderson, II, Esquire PECHT & ASSOCIATES, P.C. 55 West High Street Elizabethtown, PA 17022 And by United States mail, Certified / Return Receipt Requested, postage prepaid upon the following: Hany Maawad c/o Camp Hill Diner 3449 Simpson Ferry Road Camp Hill, PA 17011 CERTIFICATE OF SERVICE I hereby certify that on this lilth day of June, 2008, a true and correct copy of the foregoing Praecipe to Reinstate Additional Defendant Complaint was served by means of United States mail, first class, postage prepaid, upon the following: Herbert P. Henderson, II, Esquire Pecht & Associates, P.C. 55 West High Street Elizabethtown, PA 17022 (Attorney for Plaintiff) /uQO`O e?n? ?. IFF'S RETURN - REGULAR CASE NO: 2008-01056 P COMMONWEALTH OF PENNSYL ANIA: COUNTY OF CUMBERLAND MAWOOD ASSOCIATES INC VS MCCOY BROTHERS INC SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County,Penns lvania, who being duly sworn according to law, says, the within COMPLA NT JOINING ADDL was served upon CAMP HILL DINER the ADD'TL DEFEND. , at 110 at 3449 SIMPSON FERRY R CAMP HILL, PA 17011 FAIZ BOLSS a true and attested cor- 00 HOURS, on the 23rd day of June , 2008 by handing to of COMPLAINT JOINING ADDL together with and at the same time di*ecting His attention to the contents thereof. Sheriff's Costs: Docketing 8.00 Service 5.00 Affidavit .00 Surcharge 0.00 .00 7?03f0g?^ ? 3.00 Sworn and Subscibed to before me this ay of So Answers: R. Thomas Kline 06/26/2008 By: V). , RHOADS & A. D. Dean F. Piermattei, Esquire Attorney I.D. No. 53847 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for McCoy Brothers, Inc. DAWOOD ASSOCIATES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PA CIVIL ACTION LAW V. NO. 08-1056 McCOY BROTHERS, INC. Defendant V. HANY MAAWAD, Individually and t/d/b/a CAMP HILL DINER : Additional Defendants IMPORTANT NOTICE: TEN DAY NOTICE OF DEFAULT To: Hany Maawad Camp Hill Diner 3449 Simpson Ferry Road Camp Hill, PA 17011 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING, AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: 698316.1 CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 RHO By: __ .. e ', squire Stephanie E. DiVittore, Esquire One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for McCoy Brothers, Inc. CERTIFICATE OF SERVICE I hereby certify that on this o NO of July, 2008, a true and correct copy of the foregoing Ten Day Notice of Default was served as follows: By Regular Mail: Herbert P. Henderson, II, Esquire Pecht & Associates, P.C. 55 West High Street Elizabethtown, PA 17022 By certified mail, return receipt requested: Hany Maawad Camp Hill Diner 3449 Simpson Ferry Road Camp Hill, PA 17011 P M., r, ^-- y...s Chi" V DAWOOD ASSOCIATES, INC., Plaintiff vs. MCCOY BROTHERS, INC., Defendant vs. HANY MAAWAD, Individually and t/d/b/a CAMP HILL DINER, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-1056 RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Herbert P. Henderson, H, counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of Plaintiff in the action is $6,758.39 The counterclaim of the Defendant in the action is $ The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: Herbert P. Henderson, H, Esquire; Dean F. Piermattei, Esquire, Stephanie E. DiVittore, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully Submitted, Her ert P. Henderson, II, Esquire ORDER OF COURT AND NOW, , 2009, in consideration of the foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators in the above captioned action as prayed for. By the Court, r. "? ? ?" ? ``.,?' ?, r ? ? ? ?~ ? p ? q?. ? ? ? ? ?? '`? .:: F ?. t: 't .-:?? ?? V DAWOOD ASSOCIATES, INC., Plaintiff NO. 08-1056 vs. MCCOY BROTHERS, INC., Defendant vs. HANY MAAW.A.D, Individually and t/d/b/a CAMP HILL DINER, Additional Defendants RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Herbert P. Henderson, II, counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of Plaintiff in the action is $6,758.39 The counterclaim of the Defendant in the action is $ The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: Herbert P. Henderson, H, Esquire; Dean F. Piermattei, Esquire, Stephanie E. DiVittore, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Respectfully Submitted, Her ert P. Henderson, II, Esquire ORDER OF COURT AND NOW, , 2009, in consideratti n of the foregoing petition, /-/ q., and ljjl 4/! P.iAA-' 14/. Esq., and Esq., are appointed arbitrators in the above captioned action as prayed 0 for. By e(Court, 1 - } e7i cx 4? f3 tL - ` 46 7 t i]Z °A C L,. C03_ ?C i f ._ i LL.; ?i DAWOOD ASSOCIATES, INC., Plaintiff VS. MCCOY BROTHERS, INC., Defendant VS. HANY MAAWAD, Individually and t/d/b/a CAMP HILL DINER, Additional Defendant : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-1056 CIVIL ACTION - LAW OATH We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the dutie f our office with fidelity. Andrew C. Sheely, Esquire P. O. Box 95 Mechanicsburg, PA 17055 Andrew H. Shaw, Esquire 200 South Spring Garden St. Carlisle, PA 17013 tL 1 r? ? AWARD $ We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: , (Note:nlf damages for *)ay ar",Tv rded, they shall be separately stated.), M Henry F. Coyne, Esquire Chairman Coyne & Coyne, P.C. 3901 Market Street Camp Hill, PA 17011 Date of Hearing: June 11, 2009 Date of Award: , Esquire NOTICE OF ENTRY OF AWARD Now, the -at?day of JLA-A,1¢i , 2009, at ?,'S'? .m., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensate t be paid upon appeal: Prothonotary Arbitrator, dissents. (Insert name if applicable.) $ %,; 00 By: Deputy 9'y FILED-OFFiCE OF THE PRO T HN;, TARY, 2004 JUN I I PM z= 5 7 CUt Ls y :: , +/JL;N Y PEWSYLVAN A (lort-f 'LL -lo IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAWOOD ASSOCIATES, INC. : Plaintiff, ; V. NO. 08-1056 MCCOY BROTHERS, INC. Civil Term Defendant V. HANY MAAWAD, Individually and t/d/b/a CAMP HILL DINER, Additional Defendant NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice is given that Hany Maawad, individually and t/d/b/a Camp Hill Diner appeals from the award of the board of arbitrators entered in this case on the 11 th day of June 2009. I hereby certify that the compensation of the arbitrators has been paid. e am C. Felker, Esquire Attorney for Appellant ID # 67999 P.O. Box 1401 Camp Hill, PA 17001-1401 717-512-0647 FILED -,D- ,-_i Cyry.. 0 F VIE F;-, 2009 JUL -3 PH 12: 22 S366.00 cas? f3 --7)? p?o b IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAWOOD ASSOCIATES, INC. Plaintiff, V. NO 08-1056 CIVIL ACTION - LAW MCCOY BROTHERS, INC. Defendant. V. HANY MAAWAD, Individually and t/d/b/a CAMP HILL DINER Additional Defendants ANSWER WITH NEW MATTER TO ADDITIONAL DEFENDANT COMPLAINT AND NOW, comes the above-named Additional Defendants, by and through their attorney, William C. Felker, files this Answer to Additional Defendant Complaint, sets forth and answers as follows: 1. Admitted based on information and belief. 2. Admitted. 3. Admitted based on information and belief. 4. Denied: As for the specific transactions for which Plaintiff, Dawood Associates Inc., seeks relief from Defendant McCoy Brothers, Inc., the contract was, as Plaintiff, Dawood Associates Inc., has averred in Plaintiff's Complaint filed February 15, 2008, in averments 6 and 7, between Plaintiff, Dawood Associates Inc., and Defendant McCoy Brothers, Inc. 5. Admitted. 6. Denied. Defendant McCoy Brothers, Inc. was hired by Additional Defendants as a general contractor. 7. Denied. Defendant McCoy Brothers, Inc. never put a Camp Hill Diner representative in contact with Plaintiff, Dawood Associates Inc. By way of further answer, Defendant's averment is also disputed by Plaintiff, Dawood Associates Inc. 8. Denied. The work was done pursuant to a contract between Plaintiff, Dawood Associates Inc., and Defendant McCoy Brothers, Inc. 9. Denied as stated. Defendant McCoy Brothers, Inc. received the benefit from Plaintiff, Dawood Associates Inc. Plaintiff, Dawood Associates Inc., was Defendant McCoy Brothers, Inc. sub-contractor; therefore, the benefit was received by Defendant McCoy Brothers, Inc., the services provided by Plaintiff, Dawood Associates Inc to Defendant McCoy Brothers, Inc. helped Defendant McCoy Brothers, Inc. fulfill its contractual obligations to Additional Defendants. 10. Denied. Additional Defendants paid Defendant McCoy Brothers, Inc. in full for all services rendered and therein by indirectly paid the sub-contractors of Defendant McCoy Brothers, Inc. WHEREFORE, Additional Defendant respectfully requests this Honorable Court to dismiss with prejudice Defendant's Additional Defendants Complaint for failure to state a cause of action, and award Additional Defendants' attorney's fees, costs and any other relief this Honorable Court deems just against Defendant. NEW MATTER NOTICE TO PLEA: YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. 11. Hany Maawad, owner of the Camp Hill Diner, hired Defendant, McCoy Brothers Inc., to be the general contractor for work involving the Camp Hill Diner, after a fire had occurred at the diner. 12. As averred in Plaintiff's Complaint filed February 15, 2008, in averments 6 and 7, Plaintiff, Dawood Associates Inc., and Defendant McCoy Brothers, Inc. entered in to a contract to perform work at the Camp Hill Diner. 13. Plaintiff, Dawood Associates Inc., was a sub-contractor of Defendant, McCoy Brothers Inc. 14. During the time Defendant, McCoy Brothers Inc., was performing services for Additional Defendants there was never any separate agreement between Additional Defendants and Plaintiff Dawood Associates Inc. 15. Defendant, McCoy Brothers Inc. is the one responsible for paying its sub-contractors. 16. All monies owed to Defendant McCoy Brothers Inc. by Additional Defendants have been paid in full satisfaction for all work performed by Defendants McCoy Brothers Inc. or preformed by the sub-contractors of Defendants McCoy Brothers Inc. 17. Defendant, McCoy Brothers Inc., seeks to benefit twice from the services preformed by Plaintiff, Dawood Associates Inc. WHEREFORE, Additional Defendant respectfully requests this Honorable Court to dismiss with prejudice Defendant's Additional Defendants Complaint for failure to state a cause of action, and award Additional Defendants' attorney's fees, costs and any other relief this Honorable Court deems just against Defendant. Respectfully Submitted; Date: William C. Felker, Esquire P.O. Box 1401 Camp Hill, PA 17001 (717) 512-0647 I verify that the statements made in this ANSWER WITH NEW MATTER TO ADDITIONAL DEFENDANT COMPLAINT are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unworn falsification to authorities. wa Date: Hany ?11, ner Camp i CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served upon all counsel of record via postage prepaid, first class United States Mail addressed as follows: Herbert P. Henderson, II, Esquire 55 West High Street Elizabethown, PA 17022 And Stephanie E> DiVittore, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Date: Z 4-'AilfWliam C. Felker, Esquire P.O. Box 1401 Camp Hill, PA 17001 (717) 512-0647 i^iL? »Wt S4J lu r [7. ,- M (')TARY 48 Dean F. Piermattei, Esquire Attorney I.D. No. 53847 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 171.08-1146 (717) 233-5731 Attorneys for McCoy Brothers, Inc. DAWOOD ASSOCIATES, INC., Plaintiff V. MCCOY BROTHERS, INC. Defendant V. HANY MAAWAD, Individually and t/d/b/a CAMP HILL DINER Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION LAW NO. 08-1056 MCCOY BROTHERS, INC.'S REPLY TO ADDITIONAL DEFENDANTS' NEW MATTER NOW COMES Defendant McCoy Brothers, Inc. ("McCoy Brothers") by and through its attorneys, Rhoads & Sinon LLP, and files the following Reply to New Matter served by Additional Defendants Hany Maawad t/d/b/a Camp Hill Diner ("Additional Defendants") stating as follows: 11. Denied as stated. It is admitted that McCoy Brothers performed work at the Camp Hill Diner following a fire at the Diner. It is specifically denied that McCoy brothers was hired to be the general contractor for the project. 12. Denied. It is specifically denied that McCoy Brothers entered into a contract with Dawood Associates, Inc. ("Dawood") with respect to work at the Camp Hill Diner or otherwise. 750047.1 By way of further response, all services performed by Dawood at the Camp Hill Diner were performed for the owner of the Camp Hill Diner, and Dawood worked with the owner directly. At no time did McCoy Brothers bill or collect from the owner of the Camp Hill Diner for the services at issue in this action. Dawood was instructed by McCoy Brothers to deal directly with the owner, and Dawood had direct interaction with the owner after McCoy Brothers was no longer involved in the Project. 13. Denied. It is specifically denied that Dawood was a sub-contractor of McCoy Brothers. It is also specifically denied that Dawood had any contractual relationship with McCoy Brothers with respect to the work at issue in this action. 14. Denied as stated. McCoy Brothers is without knowledge sufficient to form a belief as to the truth or falsity as to the allegation that there was no agreement between Dawood and Additional Defendants. It is specifically denied that there was any relationship, contractual or otherwise, between McCoy Brothers and Dawood concerning the work at issue in this action. 15. Denied. It is specifically denied that McCoy Brothers sub-contracted with Dawood regarding work performed at the Camp Hill Diner. It is also specifically denied that McCoy Brothers received payment for any work or services performed by Dawood with respect to the Camp Hill Diner. 16. Denied. It is specifically denied that McCoy Brothers received any payment for services or work performed by Dawood. It is also specifically denied that McCoy Brothers subcontracted with Dawood for any services or work at the Camp Hill Diner. By way of further response, all services performed by Dawood were performed for the owner of the Camp Hill Diner, and Dawood worked with the owner directly. At no time did McCoy Brothers bill or collect from the owner of the Camp Hill Diner for the services at issue in this action. Dawood was instructed by McCoy Brothers to deal directly with the owner and did have direct interaction with the owner after McCoy Brothers was no longer involved in the Project. 17. Denied. It is specifically denied that McCoy Brothers benefited, in any way, from the services performed by Dawood with respect to work at the Camp Hill Diner. By way of further response, McCoy Brothers did not receive any "services" from Dawood, but rather these services were provided directly to and for the benefit of the owner of the Camp Hill Diner. WHEREFORE Defendant McCoy Brothers, Inc. respectfully requests that this Court enter judgment in their favor and against Additional Defendants Hany Maawad Individually and d/b/a/ Camp Hill Diner. Respectfully Submitted, RHOADS & SWON LLP By: US= F.` $ rtfiiattei, Esquire Steph e E. DiVittore, Esquire One So th Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for McCoy Brothers, Inc. CERTIFICATE OF SERVICE I hereby certify that on this day of , 2006, a true and correct copy of the foregoing McCoy Brothers, Inc.'s Reply to Additional Defendants' New Matter was served by means of United States mail, first class, postage prepaid, upon the following: Herbert P. Henderson, II, Esquire 55 West High Street Elizabethtown, PA 17022 William C. Felker, Esquire P.O. Box 1401 Camp Hill, PA 17001 CERTIFICATE OF SERVICE I hereby certify that on this 12th day of August, 2009, a true and correct copy of the foregoing McCoy Brothers, Inc.'s Reply to Additional Defendants' New Matter was served by means of United States mail, first class, postage prepaid, upon the following: Herbert P. Henderson, H, Esquire 55 West High Street Elizabethtown, PA 17022 William C. Felker, Esquire P.O. Box 1401 Camp Hill, PA 17001 ' r ? RM -M OF THE PROTHONOTARY 2009 AUG 13 AN 10* 32 ,.1 ?tY