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HomeMy WebLinkAbout04-1109L. C. Heim KATHERMAN & HEIM Attorney I.D. No. 23155 345 East Market Street York, PA 17403 Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA H&N LANDSCAPING Plaintiff VS. LYONS CONSTRUCTION SERVICES, INC. and UNITED STATES FIDELITY & GUARANTEE COMPANY, INC. Defendants Civil Action - LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may Proceed without you and a judgment may be entered against you by the court without further claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Court Administrator Cumberland County Court House Carlisle, PA 17013 (717) 240-6200 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas edxuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificcion. Usted debe presentar una apariencia escrita o en persona o pot abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su corte tomara medidas y puede entrar una orden contra usted alivio que es pedido en la peticion de demanda. Usted puedo perder dinero o sus propiendades o otros derechos imnportantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO 1NMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL D1NERO SUFICIENTE DE PAGAR AL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTA ESCRiTA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. Lawyer Referral Service Court Administrator Cumberland County Court House Carlisle, PA 17013 (717) 240-6200 L. C. Heim KATHERMAN & HEIM Attorney I.D. No. 23155 345 East Market Street York, PA 17403 (717) 854-5124 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA H & N LANDSCAPING Plaintiff VS. LYONS CONSTRUCTION, No. SERVICES, INC., and : UNITED STATES FIDELITY & : GUARANTEE COMPANY, 1NC. : Defendants Civil Action - LAW COMPLAINT 1. Plaintiff is H & N Landscaping, a sole proprietorship with offices at 1243 Lisburn Road, Mechanicsburg, Pennsylvania 17055 (herein "H&N)". 2. Plaintiff is a "subcontractor" within the meaning of the Contractor and Subcontractor Payment Act, 73 P.S. §501 et seq. 3. Defendant is Lyons Construction Services, Inc., a Pennsylvania corporation with offices at 5237 East Trindle Road, Mechanicsburg, PA 17055 (herein "Lyons"). 4. Defendant Lyons is a "contractor" within the meaning of the Contractor and Subcontractor Payment Act, 73 P.S. §501 et seq. 5. Defendant United States Fidelity & Guarantee Company, Inc. is a foreign corporation doing business in Pennsylvania with an address of 5801 Smith Avenue, Baltimore, MD (herein "USF&G). 6. Plaintiffis engaged in the business of landscaping. 7. Defendant Lyons is engaged in the business of general contracting. 8. Defendant USF&G is engaged in the business of insurance and bonding. COUNT - I H&N vs. Lyons Breach of Contract 9. Paragraphs 1 through 8 hereof are incorporated herein by reference thereto. 10. On February 15, 2001, defendant Lyons entered into a contract with the Carlisle Area School District (herein "Carlisle") for the construction of additions and alterations to the High School Complex, Phase 1 - Swartz Education Technology Center, situate in Cumberland County, Pennsylvania. 11. On February 28, 2001, the plaintiff and the defendant Lyons entered into a subcontract agreement 149-3, wherein plaintiff was to perform landscape grading, seeding and soil supplementation and exterior planting work as more fully described therein for the sum of $87,515.00. A copy of the subcontract is attached hereto as Exhibit A. 12. From March 2, 2001 until September 23, 2003, plaintiff performed the work called for in the subcontract 149-3 in a workmanlike manner, which work was accepted by the defendant Lyons and Carlisle. 13. Plaintiff has sent applications, certificates for payment and invoices to defendant Lyons for the amount due, which total $87,515.00. 14. Defendant Lyons has paid plaintiff the sum of $76,805.09, leaving a balance due under the terms of subcontract 149-3 of $10,709.91. 15. Despite repeated requests and demands, defendant Lyons has failed and refused to pay plaintiff the balance due. 16. Pursuant to paragraph 15 of subcontract 149-3, defendant Lyons agreed to pay plaintiff its portion of all payment received by defendant Lyons from Carlisle within seven (7) days after receipt thereof. 17. Plaintiff's work was accepted by Carlisle. 18. Defendant Lyons was paid by Carlisle on January 22, 2004, however defendant Lyons refuses to pay plaintiff the amount due it according to the terms of subcontract 149-3. 19. Paragraph 21 of subcontract 149-3, gave defendant Lyons the choice of resolving disputes by either binding arbitration or an action at law, however failed to act within thirty days after written notice and receipt of complete information by plaintiff, which occurred on or before September 24, 2003. 20. Defendant Lyons is in default under the terms of subcontract 14943. 21. Plaintiff is incurring reasonable attorney's fees in collecting the sum due to him. 22. Plaintiff is entitled to a statutory penalty of 1% per month of the amount due it that has been wrongfully withheld, pursuant to 73 P.S. §512(a). 23. Plaintiffis entitled to interest at the statutory rate of 1% per month from the day following the due date until paid, pursuant to 73 P.S. §507(d). 24. Plaintiff is entitled to reasonable attorneys fees and expenses in prosecuting this action for payment, pursuant to 73 P.S, §512(b). WHEREFORE, plaintiff demands judgment against defendant Lyons in the amount of $10,709.91, plus interest, penalty, reasonable attorney's fees, expenses and cost of suit. COUNT II H&N vs. USF&G Action on Payment Bond 25. All preceding paragraphs are incorporated herein by reference thereto. 26. Defendant USF&G issued a Contractor Labor and Material Payment Bond No. KE0452 on subcontract 149-3, as identified in paragraph 11 hereof, (herein the "Bond"), in accordance with the provisions of the Public Works Contractors' Bond Law of 1967, 8 P.S. §191, etseq (herein the "Act"). A copy of the Bond is attached hereto as Exhibit B. 27. Pursuant to paragraph 10 of subcontract 149-3, upon defendant Lyons default of contract 149-3, defendant Lyons interest in subcontract 149-3 is assigned to defendant USF&G. 28. Under the provisions of the Bond and the Act, plaintiff, who has not been paid in full before the expiration of ninety (90) days after the day on which it last performed or last furnished materials for which payment is claimed, may institute an action upon the Bond. 29. Despite repeated requests and demands, defendant USF&G has failed and refused to pay plaintiff pursuant to the terms of the subcontract 149-3 and the Bond. WHEREFORE, plaintiff demands judgment against defendant in the amount of $10,709.91. KATHE~EI~ bY:~ei~-,~ttomey for pf.n~t~ff VERIFICATION I, HENRY L. LENKER, hereby verify that the statements in this Complaint are tree and correct to the best of my knowledge information and belief. I understand that false statements herein are made subject to the penalties of 18 PA.C.S. Sec. 4904, relating to unsworn falsification to authorities. DATE: HENRY L. LENKER 02/2g/01 SUBCONTRACT AGREEMENT 149-3 This Agreement made and entexed into, by and between Lyons Co~astrootion Sexvkes, Inc. a Pennsylvania Corporati°~ having prinelpal office at 5237 East Trindlo Road, Mechanicsburg, Pa 17050 hominaf[e~ called '%yens", of the one part and herelnaier called the "Sub~mlractor", of the other part: H & N LANDSCAPING 1243 BAST LISBURN ROAD MECHANICSBURG, PA 17055 Phone (717) 697-2908 Fax (717) 69%5018 On February 15, 2001, a contract has been mtered into betwe~m the Carlisle Area SchcolDistriet, here'ma~er called "The Ovme~, and Lyons for the eons/ax~on of Additions and Alte~tions to: High School Complex: Phase 1 - Swartz Education Technology Camter, which contract, addende, ffany, plans, specificafiens, addmda thereto, and gmeral and special cenditions all will collectively be herelnater referred to as the "Principal Contxact". Notice to proceed will be issued approximately March 2, 2001 and c~mtract must be totally ccaaplcted by April 9, 2003. The project is to be completed in phases. The a_ddmdas clarify the canpletion date for each phase. The Subcontractor does represent that it has carefully and fully examined all ofthe documents that are coliectively designated as the pr~elpal cootract and is thoroughly fluniliar with each of them and Subcontractor further represmts that the site for the work has likewise been examined and the site for the work and the conditions presmt are known and are familiar to the Subcontractor. The parties hereto agree that the principal contract as herein defined is incorporated by ref~reace in every particular in this subcontract and is part hereof. In the event, howevel', of any conflict betw~ tho provisions of this subcontract and of the principal contract, the provisions of this subcontract shall control. Lym~ does hereby assign, set over and sublet to the Subcontractor, and the Subcontractor does hereby covenant end agree with Lyons to perform and construct in a satisfactory and w°~kmanHke manner, and in accordance with the terms and ccoditions ofthe principal contract, to the approval and acceptance without cond/tion, of the owner and of Lyons, that portion Of the work of the prinelpel amtract as herein designated as follows: Scope of Work: SECTION 02923 - LANDSCAPE GRADING SECTION 02924 - SEEDIN~ AND SOIL SUPPLEMENTS SECTION 02930 - EXTERIOR PLANTS Also included, but not limited to the following: -Protectien of surrotmdtng surfaces from your work -Clean-up and removal of all debris caused by your work -ALTERNATES G-10 and G- 12 HAVE BEEN ACCEPTED BY THE OWNER -SOIL WILL BE PLACED AND ROUGH GRADED BY THE EXCAVATOR. H & N WILL NEED TO RACK AND FINE GRADE PRIOR TO SEEDING -SEEDING FOR ALL AREAS DISTRUBED Concur: Lyen~/Aub_~ EXHIBIT "A" 02/28/01 EXCLUSIONS: -BONDS UNIT PKICES: NONE CONTRACT AMOUNT: $87,515.00 DOCUMENT LIST: Plans, Specifications, Addendum 1 through .10 as prepared by Fore,an Architects Eugineers, Inc>, Box 189, 2685 Hossler Road, Manheim, Pa, Box 189, 525 West New Castle Street, Zeilimople, Pa 16063. SUBMITTALS as required by coatrac~ allowing 25 days for approval and processing. TIME SCHEDULE: All work by the Subcontractor is to be completed to allow sufficient time f~r the other Subcontractors, Prime Contracts, and Lyons to complete the project no later than April 9, 2003. Suflicieot time must also be allowed for the completion of each phase. The Subcont?actor must COmplete its work as required by the progress of Lyans. (B) Special cunditions to schedule of w~k 1. The Subcontractor by executin~ this subcontract, repremmts and warrants to Lyoos that it is .qualif~l~pable, e~perieaced and available to perform the schedule of the work as set forth in ~[lph ~,.9~?,~ subcontract agreeme~at under the terms and conditions of the principal Cancx~r: Lyons~ t/"Sub~___ 2 02728/01 contract and this subconiract, in the o. uantity and for the amount therein set forth, and within the time as is, during the execution of the principal contract, designated. The Subcontractor . does furth~ represent to Lyons that whore prequalification to perform the W~k in this coniract is required by the Owner and is a condition to con/racting or subcontracting to per£m m such work, that the Subcontractor is duly so prequal~ed and will remain prequalified for such work for the duration of this subcontract, including any addition or extension thoreof. LIABILITY: The project work designated to be performed under this c~mtract will be performiki ontirely as Subcontra~or's sole responsibility. Subcontractor will cany, for the duration of this cxmtract, public gmoral liability insurance a mln{m~lIll amOUllt lis indicated ill the spceifications. Subconlract~r warrants and agrees to provide a Certiticate oflnsuranceto evideoce said coverage and naming Lyons as additional insured on said policy. Subcontractor flu'thor warrants the existence ofWorkors' Compmsation and property and vehicle eoverage and shall provide a copy of said insurance binder to Lyons. All ofthe above montioned policies insurance ~h~ll provide that said policies of insurance shall not be changed or cancelled until ninety (90) days writtan notice has been given to Lyons. 3. PROGRESS OF WORK: The Subcon~'actor will begin said'work w~thin 48 hours aRor he is notified by Lyons and will carry forward and complete said work as rapidly as the progress of the work of Lyons will peamit. The Subcontractor will furnish said materials, labor and equipmmt, prosecute said work with dillgmce, without delay, and will not in any mannor delay or otherwise into, f~e with the w~k of Lyons or cthor Subcontractors. Should Lyons conclude that a Subcontractor is unjustly and without valid reason delaying said w~k, er the Subeonlractor has performed said work in a deficieot or improper mannor, he shall so notify said Subcontractor by facsimile or by telegram, setting forth the c~nplaint in detail, and the Subcontractor fails to comply with said notice and to correct the c~mplaint, Lyons shall have the legal right to take possession of all equipment, machinery and supplies, in and up on the · contract site, including, but not limited to; construction machinery, equipment and supplies of the Subcontractor and to use the same to ex~rrcet the complaint or to have the complaint corrected by subletting this work to othors, and said conm-ucfion machinory and equipmeot as needed to be used to correct said work deficiancies shall be used by Lyons or any SubcontraCtor designated by Lyons to so use the same. Lyons shall charge the expense of the correcting work against said subcontract and deduct the same from the conlract. TIME ALLOWED FOR CONSTRUCTION OF pROjEcT: It is expressly understood and agreed byand between the parties horeto that time is and shall be considered the essence of the contract on the part of said Subconlractor and should the said Subconiractor fail to begi~'n~ continue and ccmplcte the work as horein provided and should Lyons suffer or permit said Subcontractor to occupy more time than required undor this agreemant, in that the said Subcontractor horeby covenants and agrees to indemnify and save harmless Lyons bom any loss and damage which may be compelled to make good to the Owns, for or on account of delay in the completion thereo/; insofar as said delay was Caused by the said Subcontractor. If the Subcontractor claims he is delayed in the prosecution of his work through no fault of his own and that such delay is costly to hlm~ he shall be eotifled only to such c~npensation for such delay as is allowed and paid for by the Ownor to Lyons to the extent such is attributable to the Subcontractor's work any such claim by the Subcontractor shall be submiRed to Lyons in writing, c~taining all pertinent details, by the Subcontractor five (5) days prior to the de~uillne needed for Lyons to submit to the Ownor. Failure of the Subamiractor .to give such written notice within the time frame needed by Lyons shall terminate any right ofthe Subcontractor to make such claim to Lyons or the ownor. 5. CO~A;,O~FWORK: The Subcontractorshallprovidesttfficien~,safeandproper Concur: LYons~'~''' Sub__~ 3 02/28/01 facilities at all time~ for the inspection of the work by the Project Engineer, Architect and Lla:ms or the/r authorized representativeS, for the inspection ofthe Sulxx~tractor's work and materials used or to be used. He shall at once, removeall materials, and take down and rebuild all portion of the work condemned by the Projecl Engineer, the Architect and Lyons or their representative, upon receiving notice in writing of such cond~mnalicll. EXTRA WORK: All extra work to be performed by the Sulxxmlracter must be condensed to writing at a rate of pay agreed upm before such work is undegtaken: Said ex. ira work agre~nent must be signed by repres~mtatives of Lyes and Subconiractor and will be subject to the t~'ms and conditiefls of the subcontrac~ agreement. 7. INDEMNIFICATION OF CONTRACTOR- PATENTS AND PATENT RIGHTS: · The Subcontractor hereby covenants and agrees to indemnify and save harmless Lyons from any and all claims or suits ~om infrlngeme~ts of patents ar violation of patent rights, including all costs and exp~nses to which Lyons may be put in deflmding any acti~ that may arise through the work of the Subcontractor. IlqDEMNIIqCATION OF CONTRACTOR AND OWNER FROM ALL LLABIL/TY: The Subccotraotor shall have charge of the e~tire work ~mtll e~m~pleti(m and acceptance, and shall alone be liable for and shall pay all loss or clnmago ~aused by him or by his servallt$, agemts or eanployees to property, buildings or adjae~mt work and for any accident to persons that may occur during the performance of the w~rk covexed by this subcontract or at any time thexea/~ as a consequence of the performance of said w~k. The Subcontractor shall observe all State and Municipal laws, ordinances and regulations and shall defend and save harmless Lyes and tho Owner from all suits and claims whatevez for loss of life or injury occun'ing to employees ofthe Subcontractor who perform such work. The Subcontractor agrees to fully indemnify, protec~ and save harmless Lyons and the Owne~ from all liability from all loss, damage, suits and actions of every kind and l}am all costs and expenses in connection with such claims, suits and actions due to in'juri~ to persons or damage to property whether resulting flare accident, negligmce or any other cause whatsoever occurring during the perfarmance of the work covexed by this subcontract or at any time thereaRe~ as a consequence of the performance of the same or which may at any time occur or result i~om or be ~aused by such work and if there are any such claims installed whe~l tho work h~eill provided for is completed, final settlem~t by L.v~ and Subconlra~tex shall be d~f~ ~1 until Sllch claims are adjusted or suitablo special indezanily acceptable to Lytms is provided by Subcontractcl-. TAXES: The Subcontractor shall pay all the Pennsylvania sales and use taxes on all taxable items, and all Federal Old Age Benefit taxes, Federal Unemploymeat Compensation Insurance on all labor furnished under this c.<mlract, as required by the Commonwemlth of Peamsylvani. mxd the United States Government, as well as any othe~ taxes, Federal, State or Local, applicable to or occasioned by the Subcontractor's pr~ £u~mance of this compact or employment of persons hea~nder. 10. ASSIGNMENT OF SUBCONTRACT: No~e of the rights under this subcontract, including asslgnm,mt of funds, shall be ~ssign~i by the Subcontracter without pri~ wrimm co~se~t fi:om Lyons. Any attempt to assign the subconlract will operate as an instant forfeiture and repudiati~ thereof by the Subcontractor and the rights of the parties shall.be determined in the ~ne manne~ as though the Subcontractor had at the time of such atte~lpted assi~,nmeat lhiled and refused to caofinue to perform the conlract. In case of default by Lyes, this subcontract/s assigned to UNITED STATES FIDELITY A_ND GUARANTY COMPANY, C/O ST. PAUL COMPANIES, P. O. BOX 13576, BALTIMORE, MD 21203. 4 02/28/01 11. 12. 15. 16. 17. ExTENsIoN OF TIME: No allowance oftime will be made to the Subcontractor for delay in preparing his drawings or, in securing approval of the Owner and his repre~antative when such drawings are not properly prepared for approval of the Owner and his representative. Exte~sians oftime to be granted to the Subcontractor will be the same only as is granted to Lyons by the Owner, and will be in accordance with the Sl~Cificafions in the principal contract. CONTRACT AND LABOR AND MATERIAL BONDS: The Subcontractor further agrees that he will simultaneously, with the execution of this agrceme~g provide Lyons, if requested, with a contract bond, covering satisfactory performance of the work contraoted, the peo~l sum of 100% of the amount of the contract, and an "additional bond for labor and materials," covering the prompt payment in full/ar utility services rendered to Sub-Sulx~al~tors and for all materials furnished, reotal for equipment used, and/or labor supplied or performed, in the prosecution of the work, and also in the penal sum of 100% of the amount ofthe contract. Both bonds must also be executed by a Corporate Surety satisfactory to Lyons. Payments under this subcontract may be withheld at any time during the life Of same for non-complianco with the above bonding requirements. TERMS OF PAYMENT: Lyons agrees to pay the subconlractor his portion of all payments received by Lyons ~cm the Owner within sevea (7) days afinr receipt ther~)£ It is also understood and agreed that all estimates shall include the materials on site if so permitted by the Owner as a part of the carrent estimate. A. Ninety (90) percent of the compensation due to Subcontractor under the agreement shall be paid by Lyons to Subcontractor upon appropriate invoice by Subcontractor alter substantial inspection and approval of the work by Lyons; and B. T~m (10).percent of the comlx~sation due Subcontractor under this agreement shall be paid by Lyons to Subcontractor upon appropriate invoice by Subcontractor after acceptance of the work by the Owner or goneral Subcontractor. If the work is found to bo unacceptable by the Owner or his ag~lt, Lyons shall have the right to complete any necessary repairs and backcharge subcontractor for said repairs. It is further understood and agreed that no payment on account shall operate as an approval of said work or materials, or any part thereo£ APPROVAL OF SUBCONTRACT: It is understood and agreed by the parties hereto that this agreement is subject to the approval of same by the Owner. LYONS RIGHT TO WITHHOLD PAYMENTS: Lyens shall have the right to withhold payments from the Subcontractor, in addition to retain percantagss as may bo provided in the principal contract, of soch amounts as may boneces.sary both to insure compliance with all of the terms ofthis contract by subcontract, for work performed by the Contractor or other Subcontractors in accordance with paragraph 4 ofthls contract, and as necessary to pay all just claims for hbor and services, rental and materials famished in and about said work, which is the obligation ofthe Subixmiractor to pay. Lyons shall have the right, acting as agent of the suboonWactor, to apply such retained amount to the payments of such just claims and for work required to be performed. 18. SUBCONTRACTOR'S RELEASE TO CONTRACTOR: Upon receipt of final payment, the SubconWactor deep~ agree to give Lyons a duly signed release relieving the Contractor 02/28/01 ce~fy that all of his obligations for services, materials, equipment rental, tools, etc., incurred on this subcontract have ~ paid and that if any liability should occur on his be. half; then the Subcontractor will indemnify the Contractor. 19. PRIOR NEGOTIATIONS AND AGREEMENTS: An negotiafien~ and agreemants prior to the date of this agreement are mesged h=ein. ~ subcon~:act ha~ been remi and is fully understood by the Subcontractor. Lyons and the Subcxmtracter fc~ ~he~selves, their successors, executors, administrators and assigns, hereby agree to the full performance of the covenants of this agree~ant. 20. TERM]NATION: If Lyons work is terminated or abandoned, if Subcontractor cannot work in harmony with other Contractors, Subcontractors c~ their e~ployees, is in breach of contract or it is otherwise necessary for the welfare ofthe job in the judgment of Lyens to terminate this exmtract, Lyons may do so by written notice to Subcontraotor and, absent any breach of contract by subcoutract, pay Subcontractor on a pro rata basis for Conl~act completion to that point, accordingly as Lyons has been so paid far such work by the Owner, but Subcontractor shall not receive or is entitled to anticipated profits for any work not canpleted by Subcontractor at time of termination. 21. REMEDIES ON DEFAULT: Any disputes as to the operation, fulfillment ofme~nlng ofthis contract or of the ~ecution thersof~ may be resolved eith~ by arbitration or by action at law, at the sole option of Lyons. If Lyons shall determine in its sole diseretie~ to resolve the dispute between the parties by arbitration, such should be in accordance with the then prevailing rules, regulali~ms and procedures for commercial arbitration as established and administered by the American Arbitration Association and an award pursuant to such arbitration shall be final and bindin~ on both parlies. Lyans shall have thirly (30) days ater writtlm notice and receipts of complete information by the Subcontractor to determine what legal action it will choose to take to resolve the disputed matter. In witness whereo~ the parties hercto, with the intent to be legally bound hereby, have · xecuted this subconu-aot the day and yenr above written. ATrEST: (CORPORATE SEAL) AofTt/ST OR WITNESS: (CORPORATE SEAL) CONTRACTO. P~' / ~ ~B~; T, Y~S, PRESIDENT Concur: Ly~Sub~ THE..AMERICAN INSTITUTE' OF ARCHITECTS AIA Document A372 .Performance Bond Al~y ,qnBular m~erence to Cortt. m(:tor, Surety, Owner or other pm'~T shah be c~h~ldered plural where appl~c~Me. CONTRACTOR (.Name and Addreaa): LYONB OONSTRUO~OlJ S~fIVZCrf$~ I~O~i~J[OBBIlRG, F& 17050-3552 0~ (N~e and ~d~ss): ~ 623 ~S~ ~A~L~, PA 1701~2298 CO~ ~ a~ O~ CO~ '- ~te: ~Y 15, 2001 Amount: SURETY (Name and Prfnclpal Place of Business): UR/I~gD ST.~TK0 FXDKLX~'Y AND GnAuARTY: 2605 ~ ~XS~j YA 17110 Description (Name and Location): BONA~Oq'wtt,,~ZoNB TO RIG'II SCHOOL Date (Not earlier then Construction Contract Date): i~BIUA~y 20, 2001 Amount: · B~i~ ~2J'ZO~ ,gZZ at~O~O ~:msd1'~-1'gO '~ODBAIlD /v~odlflcagoni to thl~ Bond: [~None CONTRACTOR AS I~RINCtPAL Company: · (Corporate Seal) SUREI3' 00/100 ($9,622,000.00) ' DSeePa~e3 Sisnature: _ SiBneture: Name and Title: Name and 'lille: &LSON O. ~iOLC01~, J'R. - AI~ORI~Y (,~U~¥ additional aiBnatures appear on page 3) (FOg INFORMA TIQN ONL Y--~ame, At'dress and Telephone) AGENT. or.BROKER: OWNER'S REPRESENTATIVE (Architect, EnsIneer or /R~ & au.~8~, Z'~. - ~O~W'~ other party):~ "' P.O. BOZ 698 LB, KOT~R¥ JL~D 8OIIS~ ~ NT~.T.~ PA 170'13. 625 'n,Ud'TL'JL'ON (?Z?) .763--1~44 CJ~,l,~r~'l,~, PA 17013 F_.w2~IBIT "B" I The Contreclor and the (~urety, jointly and several¥, bind themselves, their heirs, exeCUtors, administrators, successors and usl~ns to the Owner for the performance of the Construction Contract, which is Incorporated I~erein by reference. 2 ff the Conlractor performs Ihs ConstrUction Contract~ the Surety and the Cantractor shall have no obllBuion under this Bond, except to participate in conferences as provided in SubpareBraph 3 II' there is no Owner Default. the Surety'a obligation under this Bond shall arise after: 3.1 The Owner has notified the Contractor and the Surety st its address described In PereBraph 10 below that the nv)ney ts conrdderJng declarin8 a Contractor Default and has requested and atterripted In arranBe conference with the Contractor and the Surety to be held not later than fifteen daw after receipt of such notice to discuss methods of performing the Construc- tion Comract. It' the Owner, the Contractor and the au~Ly sBree, the Contractor shall be a/Jawed · reason- able dine to perform the Construction Contact, but . such an aBreement shall no~ waive the owner's right, any, subsequently to declare · Contractor Det'auh; end 3.2 The Owner he~ declared e Contractor Defauffand formally tel'm~ated the Contractor's right to complete the centmcr, Such Contractor DefabH ahall not b~ de* -c)ared eadlar than twenty days after the Contractor and the Surety have recetved..notlce as provkled In Sub- · a.:l '~e Owner has aareed to pay the Balance of the Conl~Kt Price to the Surety In accordance wiIh the termi of the Conltructlon Contract'ur to a contractor selected to perform the Construction Contract In accor- dance with the terms of the contract with the Owner. 4 When the Owner hu MtJsfled the conditions of P~a- ~raph 3., the Surety shall promptly and ,at the Sure~s pense take one of the followinB actions. 4.1 A~renga for the Contractor~ with consent of the Owner~ to perform and complete the Construction Contract; or I.~] Llndemlke to perform and complete the Conatruc~ tlun Contract itself, ~hroullh Its sBents or through inde- pendent contractors: or 4,,a, Obtain bids ar neBotlated proposals from q'6sll(led contractors acceptable to the Owner for contract for performance and completion of the Con- stmctton Contract, erran&e for s conlrect to be pre- pared for execution by the Owner and the contractor selected with the Owner's concurrenca~ to be iecured with .~.erformsnce and payman! bonds executed by qualified surety equivalent tn the bonds Issued on the ConstruCtion Contract, and pay to the Owner the anmunt of dameBes ,u. cle~crlbed in Paragraph 6 in ex, (:ess ~ the Balance o!the Contract Price Incurred by the ~h~_er re, a~lUn8 from the`Contractor'a delault; ur 4~4 Waive its right to perform and.complete, arranE, e , '~or complellon, or obtain a new contractor end wiih resJonable promptnesa bader the-c rcumslanees: .1 After Investigation, delermine the amount for which, it may be liable tO the Owner end, as soon'as practicable after the amount is deter- mined, tender payment therefor to Ihs · Owner; or .2 Deny liability In whole or in Pert ned natl,/the Owner title8 reasons therefor. a I f the Surelydoes not proceed as provided In Paragraph 4 with reuonable promptness, the Surety ;hell be deemed tn be In default on'this Bond fifteen days after receipt o! an additional whiten notice from the Owner to the Surety demendln8 thai the Surety pe~form Itl obllBations under this Bond, and the Owner shall be entitled to enforce ang remedy available icl the owner. If the Surety proceeds as provided in. SubparaBraph 4.4, and the Owner refuses (he payment tendered or the Surety has denied llablilly, In whole or In parl~ withobt further notice the OWner shall be entitled to enforce any remedy available' to the Owner. e' After the Owner haa termlna~ed the Contractor's r~ht to complete the Construction Contract, and If the Surety electa to act under $ubparaBraph 4.1~ 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be 8reeler than those of the Contractor under the Construction Contrect~ and the responsibilities of the Owner to the Surety ahell not be 8reeler than those of the Owner under the ConstruCtion Contract. To the limit of the amount m' this g~dLbut sublect to commitment by the Owner of the Balance of th · Contract Price to mitigation of ' co~ta and damages on the Cons(ruction Contract, the Sure* ty Is obllBated without duplication for: 6.1 T~e responsibilities of ~e Contractor for correc- tion o(defectlve work and completion of the Conslruc- tide Contract; 8.2. Additional label, denise prof.e?lonai and de,ay coats resultln8 from the Contractor s Default. and re- aultln8 from the actions or failure to act of the Surety under ParaBraph 4; end ~l.:l Uquldated clamaEes, or If no liquidated d~mages are Ipedfled In the Construction Contract, actual dam- abes caused by delayed performance or non.perfor~ rnance of Ihs Contractor. 7 TheSuretyshell notbellabletotheOwnerorotharafor. obllBadons of the Conlractor that are unrelated to the COn structlon Contract, and the Balance of the Contract Pdce shall nat be reduced Or att off on Kcaunt et. any such unrelated obligations, No right of action shall accrue on thla Bond to any pe'rson or entlty olher than the Owner or Ils heirs, execulors, adminislratora or suCcessors. B TheSuretyherebywaiveanoticeofanych&nBe, includ- InBchanges of time, to the Construction Contract or to related subcontracts, purchase orders and other oblige. tions. g Any proceeding, lesal or equitable, under this Bund rnay be Instituted in any coutl of compelant jurisdiction In the Iocatlo~ In which the work or par! of the work Is located and shall be Inst~u~ed wilhin two yeeri efter Contra'ctor Defeull or wlth~ Iwo years after the. Ceetractor ~:eased workinL~ or whhin Iwo years after the Surely refuaet' Or/ails to perform Ils obfiBatlons' under this Bond/whichever Curs flrSl; I¢ the provisions o( Ihib PareL~reph ere void or prohibited by ay... the minimum per od of limitation avail- AaiS. lB84 2 Ib~ to sureties as a' defense.irt the lm. bdlcflen of the suit ehi~l be ipplicable. .lB NotiCe to the $ure~Y, the Owner or the C°ntract9r shal! be milled or delivered to the address shown on She nature paee* 11 When this Bond has been furnished to complywithe sTJtutory or other label .requt~ment .In the Imf,on where the conltructlon was to Depenorrne,~, anypro~SlOnin this Bond =onflictlni with Mid statutory or lelal requirement shall be deemed deleted herefrom end pn~a!ona con- ¢ormln$ to such statutory or other legal requirement be d.~t, ~ed InCorporated herein. The Intent Il thlt this Bond a~tli be construed ~s s statutory bond and not as a comn~n law bond. 1'~ DEFINItiONS 1~1.1 Balan~Ce of'the CoMract Pr!ce: 3'he total amount p~le by the Owner to'the Contractor under the. Construction ContraCt ~.fter all proper adjustments. have been made, including allowance, to the Con tractor of any amounts received or to be Mceived.by the C)wn~r In settlement of insurance M othe~ claims for clamato to which the Contractor Is entitled, re- dueed by all valid and proper PaYment~ made to or on behalf oithe ContrKtor under the ConstruCtlofl Con- 1~1.2 Cona6'uction Cont tact: Tbe aKreemem between the Owner and the Contractor Identified on the sig- net#re paae, Includlni a~l Contract Documents amJ changes thereto. '.. 12.3 Contrm~r Default: Failure of the Contre~o~:, which ba~ n.,Ither been remedied nor waived, to per- form or nthen&~ae to comply with the terms of the ConstructJolt Colttract.: 1].4 Owner Default; Failure of the Owner, ,~lch ha; neither been remedied nor wah/ad, to pay the Con- traCtor as requ{red by the Construction Contract or to p~rform and complete or comply With the other terms MODIFICATI~ON~.TQ~Ti41S BOND ARE A~ (Space is provided below for additional signatures of added parties, other than those appearinB on the cover page.) CONT~AC'FOR AS PRINCIPAL SURETY Com~.ny: - CCorporate Seal) . Company: , (Corporate Seal) SIBnature: $1Bnature: Name and Title: Name and Title: Address: Address: aMA DOA_'UME~T ~, Pf, RK)RMANC~ K~ID AND fAYMtNT BONO; D~CLMBIR t~4 iD. * AIA e* ~I,IE AMERICAN INSTITUT[ OF AIICHITECT~;, 173~ NEW YORK AVl., N,W,, W~HINGYON, D,C. ZOOM A312-1~4 ~ 1HISD I~INTING ·MAacN 1~ THE , ERICAN INSTITUTE. OF ARCHITECTS AIA Document A312 Payment Bond A~Y alnaul, r reference to Contractor, Sure~y, Owner Or other party shall be considered plural where appllcabld. CONTRACTOR (Name and. Address): 5237 ~ ~L~D)7~ ~ ~A~, ~ 170~0-3~52 SURETY (Name and,Principal Place of Business): · 2605 ~T. A2~ DIIVK OWNER (Name and Address): · 623 ,~SX ni~T.~m.X, FA 27013-2298 CON~RU~ION CO~ Date: ~B~Y 15, 2001 00/Z00 ($9,622,000.00) Description (Name and Location): eORTRAOT MO. ! - O~HZRA.L ({OHHTM~TT.0F/, AOD:iT][OtiB AHD BOf~CF~i~ZOHfJ TO l~ZgH SCHOOL e~: ~ 1 - ~Z/~A~Z~ ~~ C~ Da~ (Not eadler than ~nst~on ~ntra~ Date): ~BR~Y 20, 2ooA Amount,' ' ~C~:li~ }ITT.LTOM S~EX Hl~tD~.O lq/Ir~]~ I~0UBAt~ Modifications to this Bond: '[~ None CONTRACTOR AS PRINCIPAL Sibnatu re: Name and Title.. 0D/lO0 (~89,622,000.00) [] See Page 6 SURETY Company: Signature: Name and Title: Al, BOM O. MOLOOTT, (Any additional signatures appear-on page 6) tFOR ~NFORMATION ONL Y--Name, Add/eas and Telephone) '-' AGENT 6r BROKER: OWNER'S REI~ESENTATIVE (Architect, ~Bineer or ~S~g &. ~, ~e. - ~ olher ~r~): P.O. ~X:698 ~.8. ~Y ~ H~, PA 17011 625 ~YOH I The Contractor end the SOU jointly and severally, bind themselves, their ~ral~, .executor~, edmlnistretors` successOr~ ad ~sigr~ to ~ Owner to pey for' labor, metetials, end equipment furnished for u~e ip the perfo~ make ut t~ Co .nstructlon Contract, which h Incorpo. ret~ herein o¥ 2 With respect to the Owner, this obligation shell be null and void if the Contractor. 2.1 Promptly makes payment, directly or indirectly, for alt sums due ~:lalmants, and · 2.2 Defends..indemnifies and holds harmless the Owner from claims, demands, Ii&ns or suits by any person or entity whose claim, demand, lien or suit Is for the payment for labor, materials or equipment fur- nished for use in the performance of the Constr~ction Contract, provided the Owner ha~ promptly notified the Contracto~ and the Surety Cat the address. described in Paragraph 12) of any claims, demands; - liana ur suits and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety, and IXovlded there Is no Owner Default. 3 With respect to ClaimantS, this obligation shall be' null end void if the Contractor promptly makes pay- moat, directly or indirectly, for al/sums due, 4 The Surety shall have no obligation to-Claimants ud~ier th~s Bond until: 4.1 Claimants who ara employed by or have a direct contract with the Contractor. have 81yen notice to the Surety [at the address de~crthed In Paragraph 12J and sent a copy. or notice thereof, to the Owner, stetinl that a claim, is being made under this Bond and, with substantiel accuracy, the amount of the claim. 4~2 Clalments who do not have a dkect contract with the Contractor:. .1 Have furnished written notice to the Cum tractor and sent a.copy, or notice thereof, to the Owner, withJn 90 days after hevtni last performed labor or J~tt furnished materials or ~pment Included in the claim statln& with tantiai accuracy, the amount of the claim and the name of the pe~ to whom the · ' materials were fUmbhed or suppllbd 'or for whom the labor was done or performed; and .2 Have either received a re ection in whole or In part :from the Contractor, or not race red : within 30 days of fu;nishing the above t~ce any communication ~rom the Contractor by which the Contractor has Indicated the claim will be Paid directly or Indirectly; and' .3 Not having been paid within the.above 30 days, have sent a wdtton notice to the Surety (at the eddte~s desc'rJbed in Paragraph 12) end / Sent a O:)py, or notk:e thereof, to the Owner. · staUne that a claim is belnl made under this ,~ Bond and encl~lng a ~ of the _pr~v,ious '~ - wr~ten notice furnished to the Cofltracto~. $ If a notice required by Paragraph 4 is ~lven by the Owner to the Contractor or to the Su~&ty. ~hat is suffi- cleflt compliance. & When the C~mant has satisfied the conditions of Paragraph '4, the Surety shall promptly and at the Surety's expense take the followlnl actions: 6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 d'ays after receipt of the claim,, stating the arnounts that are un. dlsputec~..and ~ bas~s for challenging any amounts that are o~sl~tetL 6.2 Pay or arrange for payment of any undisputed amounu. 7 The Surety's total obligation shall not ex.c~d...t.~ amount of this Bond° and the amOunt of this Bond she, on credited for any payments made in good faith by the Surety. 8 AmoUnts oWed by the Owner to the Contractor t~nder the Construction Contract shall be used for the perfor- mance of the ConstmcUon Contract end to satisfy claims, I~ any, under any.Construction Performance Bond. By the Contractor fumishin8 and the Owr~r accepting this Bond, they a~rae that all funds earned by the Corrtrnctor. In the performance of the Construction Contract are dedicated to saUsfy obll~,etlons of the Contractor and the Surety under this Bon~, subject to the OwfleFs prior- Ity to use the funds for the completion of the work. 9 The Surety shall not be liable, to the CX~n.. er, Clalma.nts or others for bbllPd0~ of the CTfl~ector ~at .an~,.unralat- ed to the Construction Contract. The Owner sna, not liable for payment of any co~s or ex .p. emes of_ an~. Cia..~-. ant under this Bond. and shall have unoer this uond'~o obh- gaUons to make payments to, ~lve notices o~. ben.all of, o.r otherwise have obligations to Claimants un~er thts ocno. lOThe Surety hereby wbJges notice 'of any change. Ineludlnii ehangns of time. to the Construction Contract or to related subcontracts; puC'chase order~ and other oblisations, 11 No suit or action shall be Commenced by a Claimant under this Bond other than in a c~dr~ of competent luris- dk:~ion in the location in which the work or paJ'C ut the work is iocetedor after the eq21mtion of one ye~ from the date [1) on which the Claimant gave'the notice requlr~ by Subparagraph 4.1 or Clause 42.3, or C2) on which the*last labor or senace was performed by anyone or ~ last m_ate dels or equll~,Tlent were furnished by anyone oneer the sttuction Cur,'ant, whichever of ~1) or (2) first occurs. If the provisions of this Paragraph am void or 'prnhibiMd by law, the minimum period of [imitation available to s~rat~es ?~ a defense In the Jurisdiction of the suit shal! be ,appl~caom. 12 Notice to the Surety, the Owner or the Contrac.tor shall be mailed or delivered to the address shown off the sle. naturn page. Actual receipt of notice by Surety. the Owner or the Contractor. however accomplished, shall be sufficient compl-iance as of the date recelved at the address shown on the signature page. i3 When this4~ond'hns bee,n furnished to comp[y.w, ith s statutory or oth'er legal reqmremect' in th~ lOCation ~ne.r.e the Construction was to be performed, any provision In tn~s Bond conflicting with saki stalUtory or I.eg~ requirement shall be deemed deleted herefrom aaa provisions con- forminil to such statutory or other legal requirameot shall be deemed incorporated herein. The intent iL that this AIA DO~UMINf A~l~, P[~tOl~MA~CI ROt~D AND PAYI,~I~ llOYD · I~-CtMBEA ~9~41 D, AIA~ A312~984 5 ' tat~ory b · ~sond shall be construed as a s ond and not as a c(3mmon law bond. . . 14 U~oflrequestbyanypersoflorentJlyappearingtobea poten~a! beneficiary of this Bond. the Contractor shall pr0mplly furnish a copy of this Bond or shall permit ~, Cop~/ to be made. 15 I~.1 Clalmant.:Anlnd~ldualorentltyhavlngadlrect coRtract with the Contractor or with a.t;ubco~tractor the Contractor to furnish labor, materials or equip- ment for u~e In the performance of the Contract. The Intent of this.Bound shall be to include without limbe- r)on in the terms "labor, materials or equipment" thai pa? ,of water, Sas, power, light, .heat, oil, telephone servIce or rental equipment used in Ihe Constmctian'~.'~ntraCt, architectural and englneerlns matrices required for performance of the work ot' the Contractor and the Contractor's subcontractors, and all othar'lt~m$ for which a mechanlc'~ lien may be asserted in the lurisdictlan Where Ihe labor, materials or equipment were furnished. 15.2 Construction Contract: The agreement betwecn the Owner end the C.,~tractor Idemlfled on the nalure pJ~e, Indudln~ all Contract Documentl and changes thereto. · lS.3 Owner Default: Failure of the Owner, wfllch has neither been remedied not waived, lo pay the Con, tractor as required by the Construction Contract or to peri'otto ~nd complete or'comply with the other terms thereof. ' MODIRCATION$ TO THIS BOND ARE ~ FOU. OW$~ ($P~:e is provided below for additional signatures of added parries, other than Ihose appearinB on the cover page.) SURETY ICorporate Seal) Company;. Signature: and Title: · (Co!.poral~ ~eal) VERIFICATION 1, HENRY L. LENKER, hereby verify that the statements in this Complaint are true and correct to the best of my knowledge information and belief. 1 understand that false statements herein are made subject to the penalties of 18 PA.C.S. Sec. 4904, relating to unsworn falsification to authorities. HENRY L. LENKER SHERIFF'S RETURN - REGULAR CASE NO: 2004-01109 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND H&N LANDSCAPING VS LYONS CONSTRUCTION SERVICES ET KENNETH GOSSERT , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE LYONS CONSTRUCTION SRVICES INC DEFENDANT , at 1500:00 HOURS, at 5237 EAST TRINDLE ROAD MECHANICSBURG, PA 17055 MARCIA ESPENSHADE, ASST SEC a true and attested copy of COMPLAINT & NOTICE Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon on the 16th day of March by handing to ADULT IN CHARGE the , 2004 together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 8.28 Affidavit .00 Surcharge 10.00 .00 36.28 Sworn and Subscribed to before me this ~V~.~ day of ~ ~673~ A.D. ~rothonotary '~ So Answers: R. Thomas Kl±ne 03/17/2004 L C HEIM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA H&N LANDSCAPING Plaintiff VS. LYONS CONSTRUCTION SERVICES, INC. and UNITED STATES FIDELITY & GUARANTEE COMPANY, INC. Defendants NO. 04-1109 Civil Term COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF YORK I, L. C. Heim, Esquire, being duly sworn according to law, doth depose and say that on March 17, 2004, I served a copy of the Complaint and Notice to Defend in the above-captioned matter on behalf of the Plaintiff on the Defendant, United States Fidelity & Guarantee Company, [nc,, at its address at 5801 Smith Avenue, Baltimore, MD 21209, by certified mail, as evidenced by the mailing receipt and return receipt card attached hereto, bearing the signature of Defendant United States Fidelity & Guarantee Company, Inc.'s representative, all of which facts your deponent avers to be true and correct. Sworn and subscribed to before me this 24th day of March, 2004 CIVIL ACTION - LAW AFFIDAVIT OF SERVICE 7 ~62 683 }68 L/$ Pos~ Service Receipt for Certified Mail No Insurance Coverage Pmvided. Do not use for International Mai{ (See reverse) TOTAL Postage & Fees PS Form 3811. Aught 2ool L. C. Heim KATHERMAN & HEIM Attorney I.D. No. 23155 345 East Market Street York, PA 17403 (717) 854-5124 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA H&N LANDSCAPING : : No. 04-1109 Civil Term VS. LYONS CONSTRUCTION SERVICES, INC., and: UNITED STATES FIDELITY & GUARANTEE : COMPANY, INC. : PRAECIPE FOR ENTRY OF JUDGMENT OF DEFAULT TO THEPROTHONOTARY: Please enter a judgment by default in favor of PlaintiffH&N Landscaping and against Defendant Lyons Construction Services, Inc. for failure to plead to the Complaint in this action within the required time. The Complaint contains a Notice to Defend within twenty days from the date of service thereof. Defendant was served with the Complaint on March 16, 2004, and their Answer was due to be filed on April 5, 2004. Attached as Exhibit "A" is a copy of Plaintiffs written Notice of Intention to File Praecipe for Entry of Default Judgment which I certify was mailed by regular mail to the Defendant at their last known address on April 29, 2004 which is at least ten days prior to the filing of this Pmecipe. No Notice was sent to Defendant's attorney since no appearance has been entered on Defendant's behalf. Enter judgment in favor of Plaintiff and against Defendant Lyons Construction Services, Inc. in the amount of- $10,709.91; plus Statutory Penalty at 1% pursuant to 73 P.S. §512(a) - $428.40; Statutory Interest at 1% pursuant to 73 P.S. §507(d)~~omey Fees- $1,457.00; Total Judgment - $13,023.71. DATE: June 1, 2004 L//C. Heim, ~ttomey for Plaintiff Judgment entered in favor ofplaintiffand against defendant, Lyons Construction Services, Inc. in the amount of $13.023.71. DATE:, )t4.~,e '~1 ~.aOO~/ Prothonotary{/~' ') ~' ~9~ L. C. Helm KATHERMAN & HEIM Attorney I.D. No. 23155 345 East Market Street York. PA 17403 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA H&N LANDSCAPING Plaimiff VS. LYONS CONSTRUCTION SERVICES, INC. and UNITED STATES FIDELITY 3: GUARANTEE COMPANY, INC. Defendants CIVIL ACTION - LAW NO. 04-1109 Civil Term TO: Lyons Construction Services, Inc. 5237 East Trindle Road Mechanicsburg, PA 17055 DATE: April 29, 2004 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE 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 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 PAPER TO YOUR LAWYER AT ONCE. IF YOUDO NOT HAVE A LAWYER, GO TO OR TELEPHONE'13IE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Court Adminisffator Cumberland County Court House Carlisle, PA 17013 (717) 240-6200 BY: ~, ESQUIRE I.D. No. 23155 OFFICE OF THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA Cumberland County Court House I Courthouse Square Carlisle, Pennsylvania 170t3 Telephone: (717) 240-6195 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA Plaintiff: H&N LANDSCAPING versus Defendant: LYONS CONSTRUCTION SERVICES, INC. and UNITED STATES FIDELITY & GUARANTEE COMPANY, INC. Judgment No.: 04-1109 Civil Term CERTIFICATE OF RESIDENCE PA R.C.P. 236 I, hereby certify that the precise residence of Plaintiff is: 1245 East Lisburn Road, Mechanicsburg. PA 17055 AND CERTIFY THAT THE LAST KNOWN ADDRESS OF THE WITHIN DEFENDANTS ARE: LYONS: 5237 East Trindle Road, Mechan~ ~'./,C. Heim _ ~ttorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA H&N LANDSCAPING, Plaintiff VS. LYONS CONSTRUCTION SERVICES, INC., and UNITED STATES FIDELITY & GUARANTEE COMPANY, INC., Defendants NO: O4-1109 CIVIL TERM LYONS CONSTRUCTION SERVICES~ INC.'S PETITION FOR RELIEF FROM DEFAULT JUDGMEN¥ AND NOW, comes Defendant, Lyons Construction Services, Inc. ("Lyons"), by and through its undersigned counsel, and petitions this Honorable Court for relief from default .judgment, and in support thereof states as follows: 1. This case involves a subcontractor-contractor dispute. Plaintiff, H&N Landscaping ("H&N"), was a subcontractor to defendant, Lyons. 2. H&N filed a Complaint against Lyons seeking money damages from a projects on which it was a subcontractor to Lyons. 3. H&N's Complaint against Lyons was filed on March 15, 2004. 4. On June 1,2004, H&N filed a Praecipe for Default Judgment against Lyons. A copy of H&N's Petition for Default Judgment is attached as Exhibit "A." Judgment was subsequently entered on June 2, 2004. 5. Lyons respectfully requests that this Court grant its petition to open the default judgment taken by H&N for the following reason: a) Lyons has a meritorious defense to H&N's claim, namely, Lyons has made payment in full to H&N. 6. As evidenced by the Answer with New IVlatter which Lyons proposes to file, a copy of which is attached hereto as Exhibit "B," Lyons has made payment to H&N. WHEREFORE, Defendant, Lyons Construction Services, Inc., respectfully requests that this Court grant its Petition to Open Default Judgment. Respectfully submitted, RILEY AND FANELLI, P.C. SUDHI'R-R. PATI~L, ESQUIRE I.D. NO. 7.~i914 The Necho Allen No. 1 Mahantongo Street Pottsville, PA 17901 Phone: 571:)-622-2455 Fax: 570-622-5336 Counsel for' Defendant -2- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Defendants' Petition for Relief from Default Judgment has been served by the following person(s) in the following manner. BY FIRST-CLASS MAIL, POSTAGE PREPAID ADDRESSED AS FOLLOWS: L.C. Helm, Esquire KATHERMAN & HElM 345 East Market Street York, PA 17403 Date: J~..n n~M~)J o h n s~o~e/l~a r al e g al to 3trL) H II~1~. PATEL(~-5'QU I RE jun-lO-04 06:21A Lyon~ Construction P.02 L. C. Heim KATHERMAN & HElM Attorney I.D. No. 23155 345 East Market Street York, PA 17403 (717) 854-5124 Attorneys fm Plaintiff ~THE COURT OF COMMON PLEAS OF CUMBERLAND COI~TY PENNSYLVAN~ H&N LANDSCAPING No. 04-1109 Civil Term LYONS CONSTRUCTION SERVICES, INC., and: UNITED STATES FIDELITY & GUARANTEE : COMPANY, INC. : PRAECIPE FOR ENTRY OF JUDGMENT OF DEFAULT TO THE PROTHONOTARY: Please enter aj udgment by default in favor of Plaintifftt&N Landscaping and against Defendant Lyons Constmctioa Services, Inc. for t~lure to plead to the Complaint in this action within the requ~rcd time. The Complaint contains a Notice to Defend within twenty days from the date of service thereof. Defendant was served with the Complaint onMarch 16, 2004, and their Answer was due to be filed on April 5, 2004. Attached as Exhibit "A" is a copy of Plaintiffs written Notice of Intention to File Pmecipe tbx Entry of Default Judgment which I c,rtify was mailed by regalar mail to the Defendant at their last known address on April 29, 2004 which is at least ten days prior to the filing of this Prdecipe. No Notice was sent to Defendant's attorney since no appearance has been ~nterod on Defendant's behalf. Enterj udgment in favor of Plaintiffand against Defendant Lyons Construction Services, Inc. in the amount of- $10,709.91; plus Statutory Penalty at 1% pursuant to 73 P.S. §512(a) - $428.40; Statutory Interest at I% pursuant to 73 P.S. §507(d)~ $42~.4~ Attomey Fees- $1,457.00; Total Judgment - $13,023.71. DATE: June 1,2004 ~(~//~t~_ mey for Pl[aintiff Judgment entered in favor ofplaintiffand against defendant, Lyons Construction Services, Inc. in the amount of $13,023.71 . DA : Prothonotary Jun-lO-04 OG:32A Lyon~ Construction P.03 L. C. Heim KATHERMAN & HElM Attorney I.D. No. 23155 345 East Market Street York, PA 17403 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAlq~D COUNTY, PENNSYLVANIA H&N LANDSCAPING : Plaintiff : V'$. ; LYONS CONSTRUCTION SERVICES, : INC. and UNITED STATES FIDELITY & : GUARANTEE COMPANY, INC. : Defendants : CIVIL ACTION - LAW NO. 04-1109 Civil Term TO: Lyons Construction Services, Inc. 5237 East Triadle Road Mechanicsburg, PA 17055 DATE: April 29, 2004 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAJ. LED TO FILE 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. UNLBSS YOU ACT WITHIN TEN 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 PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVEA LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ,~LBOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, TI-I]:S OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCI~-S THAT 2un-10-04 06:32A Lyon~ Construction MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Servioe Court Adminislxator Cumberland County Court House Carlisle, PA 17013 (717) 240-6200 KATI-EE~/& I-~IEIM Jun-10-04 06:32A Lyons Construction P.05 IN THE COURT OF COMMON PLEAS OFCUMBER!JAND COUNTY, CIVIL DIVISION PENNSYLVANIA H&N LANDSCAPING Plaintiff VS. LYONS CONSTRUCTION SERVICES, INC. and UNITED STATES FIDELITY & GUARANTEE COMPANY, INC. Defendants : No. 04-1109 Civil Term : (x) Notice is hereby given that a iud.qment in the above-captioned matter has been entered against LYONS CONSTRUCTION SERVICES, INC. in the amount of $13,023_71. on .._)~ ~,~¢~_ ~ ,2004. x ) A copy of all documents filed with the Prothonotary in support of the within Prothonotary Civil Div. (~ - If you have any questions regarding this Notice, please contact the fillng party: L. C. Helm, Esq. 345 East Market Street York, Pennsylvania 17.403 Telephone: (717) 854-5124 (This Notice is given in accordance with Pa.R.C.P. 236) Notice sent to: I,yons Construction Serv ecs, Inc. 5237 East Trindle Road Mechanicsburg, PA 17055 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA H&N LANDSCAPING, Plaintiff : : VS. LYONS CONSTRUCTION SERVICES, INC., and UNITED STATES FIDELITY & GUARANTEE COMPANy, INC., Defendants NO: 04-1109 CIVIL TERM NOTICF TO: H&N Landscaping c/o L.C. Helm, Esquire KATHERMAN & HElM 345 East Market Street York, PA 17403 YOU ARE HEREBY NOTIFIED TO FILE A WRITFEN I~ESPONSE TO DEFENDANT, LYONS CONSTRUCTION SERVICES, INC.'s,, NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, RILEY AND FANELLI, P.C. SUDHIR R. PATEL, ESQUIRE Attorney I.D. No. 75914 The Necho Allen No. I Mahantongo Street Pottsville, PA 1790! Phone: (570) 622-2455 Fax: (570) 622-5.336 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY' PENNSYLVANIA H&N LANDSCAPING, Plaintiff VS. LYONS CONSTRUCTION SERVICES, INC., and UNITED STATES FIDELITY & GUARANTEE COMPANY, INC., Defendants NO: 04-1 i09 CIVIL TERM .ANSWER AND NEW MATT,E__~R ANSWER AND NOW, comes Defendant, Lyons Construction Services, Inc., ("Lyons"), by and through its undersigned counsel and Answer:; Plaintiff, H&N Landscaping, ("H&N"), Complaint and in support thereof avers as follows: 1. Admitted. Denied as a conclusion of law to which no response is required. Admitted. o Denied as a conclusion of law to which nc) response is required. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 70.¸ 11. 12. 13. 14. 1 S Denied. has paid H&N in full. 16. 17. 18. 19. 20. 21. COUNT I H&N v. LYONS Breach of Contract No response required. Admitted. Admitted. Denied as a conclusion of law. Admitted. Denied. Lyons has paid H&N in full. Lyons has not failed or refused to pay H&N and, in fact, Admitted. Admitted. Denied. Lyons has paid H&N in full. Denied insofar as Lyons has paid H&N in full. Denied as a conclusion of law. This averment contains a conclusion of law to which no response is required. To the extent a response is required, it is specifically denied that H&N is or should be accruing attorney's fees. 22. This averment contains a conclusion of law to which no response is required. To the extent a response is required, it is denied that H&N is entitled to any statutory penalty. -2- 23. This averment contains a conclusion of law to which no response is required. To the extent a response is required, it is denied that H&N is entitled to any statutory interest. 24. This averment contains a conclusion ol~law to which no response is required. To the extent a response is required, it is denied that H&N is entitled to any reasonable attorney's fees and expenses. WHEREFORE, Defendant, Lyons Construction Services, Inc., respectfully requests that this Honorable Court grant judgment in its favor and against Plaintiff, H&N Landscaping. 25. 26. COUNT II H&N v. USF&G Action on Payment Boned No response required. Admitted. 27. required. 28. This averment contains a conclusion of law to which no response is By way of further answer, there was no default by Lyons. This averment contains a conclusion of law to which no response is required. By way of further answer, H&N is not entitled to maintain any action on the bond since there has been no default by Lyons. 29. It is denied that there is any payment due H&N by USF&G. -3- WHEREFORE, Defendant, United States Fideli'ty & Guarantee Company, Inc., respectfully requests that this Honorable Court grant judgment in its favor and against Plaintiff, H&N Landscaping. NEW MA_____~ER Lyons has made payment in full to H&N. Respectfully submitted, RILEY AND I--ANELLI, P.C. SUDHIR R. PATEL, ESQUIRE Attorney I.D. No. 759]4 The Necho Allen No. 1 Mahantongo Street Pottsville, PA ] 790] Phone: (570), 622-2455 Fax: (570) 622-5336 Counsel for IDefendant, Lyons Construction Services, Inc. -4- VERIFICATION I, BARRY LYONS, verify that I am authorized to make this Verification on behalf of Lyons Construction Services, inc. I verify that the statements made in the foregoing Answer and New Matter to Plaintiff's Complaint which are within my personal knowledge are true and correct and those which are based on information received from others I believe to be true and correct. I understand that any false statements in the foregoing Answers are subject to the penalties under 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: BARRY LYONS, LYONS CONSTRUCTION SERVICES, INC. CERTIFICATE OF SERVIC_~E I hereby certify that a true and correct copy of Defendants' Answer with New Matter has been served on the following person(s) in the following manner: BY FIRST-CLASS MAIL, POSTAGE PREPAID ADDRESSED AS FOLLOWS.: L.C. Heim, Esquire KATHERMAN & HElM 345 East Market Street York, PA 17403 DATE: Jennifer M. Johnstone, Secretary to SUDHIR R. PATEL, ESQUIRE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA H&N LANDSCAPING, Plaintiff VS. LYONS CONSTRUCTION SERVICES, INC., and UNITED STATES FIDELITY & GUARANTEE COMPANY, INC., Defendants NO: 04-1109 CIVIL TERM  i~ ORDER AND NOW, this day of ~--~,~_~ .2004, upon consideration of the Petition of Lyons Construction Services, Inc. for Relief from Default Judgjent, it is hereby ORDERED that: _~1) A rule is issued upon the respondent, H&N Landscaping, to show cause why the petitioner is not entitled to relief y( requested. 2) The respondent shall file an answer to the petition within (3 ~ days of this date. ) The petition shall be decided undelr Pa. R.C.P. No. 206.7. __ (4a) Deposition shall be completed within days of this date. __ (4b) An evidentiary hearing on disputed issues of material fact shall be held on ., 2004, at __ o'clock __.M., in Courtroom No. of the Cumberland County Courthouse. __ (Sa) (Sb) __ (6) _~(7) The question of law presented shalll be resolved by the Court on briefs, without oral argument. if answer is filed hearing/argument shall be scheduled by the Court on or around by Court Order. The attached petition is Denied and Dismissed for failure to comply with Notice of the entry of this Order shall be provided to all parties by the Petitioner. BY THE COURT, STRADLEY, RONON, ~TEVENS & YOUNG, LLP By: Jane Landes Foster Michael D. O'Mara ID Nos. 27185 & 78472 Great Valley Corporate Center 30 Valley Stream Parkway Malvern, PA 19355 (610) 640-5800 Attorneys for Defendant United States Fidelity & Guarantee Company, Inc. H & N LANDSCAPING : : Plaintiff, : LYONS CONSTRUCTION SERVICES, : INC. and UNITED STATES FIDELITY & : GUARANTEE COMPANY, INC., : Defendants : COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil No. 04-1109 STIPULATION OF VOLUNTARY DISMISSAL The parties, by and through their undersigned counsel, hereby stipulate to the voluntary dismissal of Defendant United States Fidelity & Guarantee Company, Inc. from the abo Jane Landes Foster Michael D. O'Mara STRADLEY, RONON, STEVENS & YOUNG, LLP Great Valley Corporate Center 30 Valley Stream Parkway Malvem, PA 19355 Attorneys for Defendant United States Fi/deity & G_ u~rantee Company, Sudhir p.~tel,~re~r,~/ - Riley & Fanelli, P.C. The Neeho Allen No. 1 Mahantongo Street Pottsville, PA 17901 L. ~Heim, Esquire Katherman & Helm 345 Market Street York, PA 17403 Attorneys for Plaintiff H & NLandscaping Attorneys for Defendant Lyons Construction Services, Inc. Doc.#366319v.l