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HomeMy WebLinkAbout09-0150 WAGGONER CONSTRUCTION, INC., : IN THE COURT OF COMMON PLEAS 135 Bentz Mill Road :CUMBERLAND COUNTY, PENNSYLVANIA East Berlin, Pennsylvania 17316 Claimant . MARK C. SPICHER and KOLENE E. SPICHER, husband and wife 517 Halyard Way Enola, PA 17025 Mechanic's Lien Owner/Reputed Owner NOTICE OF MECHANIC'S LIEN CLAIM To: KOLENE E. SPICHER 517 Halyard Way Enola, PA 17025 Please be advised that a mechanics' lien claim was filed in the Court of Common Pleas of Cumberland County on January 12, 2008, at the above captioned docket number. A true and correct copy of the mechanics' lien claim is attached hereto. REAGER & ADLER, P.C. ~'!~ Thoma O. Williams, Esquire Attorney I.D. No. 67987 Wayne S. Martin, Esquire Attorney I.D. No. 208078 2331 Market Street Camp Hill, PA 17011-4642 (717) 763-1383 Attorneys for Claimant WAGGONER CONSTRUCTION, INC., : IN THE COURT OF COMMON PLEAS 135 Bentz Mill Road :CUMBERLAND COUNTY, PENNSYLVANIA East Berlin, Pennsylvania 17316 . Claimant NO. MARK C. SPICHER and KOLENE E. SPICHER, husband and wife 517 Halyard Way Enola, PA 17025 Mechanic's Lien Owner/Reputed Owner NOTICE OF MECHANIC'S LIEN CLAIM To: MARK C. SPICHER 517 Halyard Way Enola, PA 17025 Please be advised that a mechanics' lien claim was filed in the Court of Common Pleas of Cumberland County on January 12, 2008, at the above captioned docket number. A true and correct copy of the mechanics' lien claim is attached hereto. REAGER & ADLER, P.C. ~v Thomas O. Williams, Esquire Attorney I.D. No. 67987 Wayne S. Martin, Esquire Attorney I.D. No. 208078 2331 Market Street Camp Hill, PA 17011-4642 (717)763-1383 Attorneys for Claimant WAGGONER CONSTRUCTION, INC., : IN THE COURT OF COMMON PLEAS 135 Bentz Mill Road :CUMBERLAND COUNTY, PENNSYLVANIA East Berlin, Pennsylvania 17316 . Claimant L n t ~e,~-- NO. 0 I - /0.5a N1 MARK C. SPICHER and KOLENE E. SPICHER, husband and wife 517 Halyard Way Enola, PA 17025 Mechanic's Lien Owner/Reputed Owner MECHANIC'S LIEN CLAIM Claimant Waggoner Construction, Inc., files this mechanics' lien claim against Mark C. Spicher and Kolene E. Spicher, husband and wife, and against the real property hereinafter described and the curtilege appurtenant thereto for the payment of a debt due Waggoner Construction, Inc., as a contractor in the construction work on the property. The following is a statement of the claim: 1. The name of the Claimant is Waggoner Construction, Inc., (hereinafter "Claimant"), a corporation formed under the laws of the Commonwealth of Pennsylvania, with its principal office located at 135 Bentz Mill Road, East Berlin, Pennsylvania, 17316, and it files this claim as a contractor. 2. The name and address of the record Owners at the time of the furnishing of the labor, goods and materials and the attaching of the lien therefore is Mark C. Spicher and Kolene E. Spicher, husband and wife, residing at 517 Halyard Way, Enola, Pennsylvania, 17025. 3. Mark C. Spicher conducts business under the name Spicher & Company, a fictitious name owned by Mark C. Spicher and registered under the laws of the State of Pennsylvania with a principal place of business at 1452 Trindle Road, Carlisle, Pennsylvania, 17013. 4. This claim relates to labor and materials provided by the Claimant upon the Owner's premises known as the Spicher Warehouse, Louis Parkway & Carlisle Pike, Carlisle, Pennsylvania, 17015. 5. The Claimant contracted with the Owner, Mark C. Spicher, pursuant to a written agreement to supply all labor, equipment and tools necessary to provide the site work, excavation, site paving, and underground utilities for the Spicher Warehouse. A true and correct copy of the subcontract between Claimant and Mark C. Spicher is attached hereto and incorporated herein, as Exhibit "A". 6. Pursuant to Claimant's contract, Claimant was to be paid a contract sum of $121,000.00. The contract was subsequently revised by approved change orders resulting in a revised contract amount of $130,296.92. 7. Claimant provided labor and materials and performed its work in a good and workmanlike manner. The last day that Claimant provided any labor or materials was October 29, 2008. 8. The amount or sum claimed to be due for the labor and materials is $18,070.61 plus interest. 9. This lien is claimed against the fee simple interest of the Owners in the aforesaid premises. 2 10. All conditions precedent for the assertion of this mechanics lien have occurred and/or have been performed. WHEREFORE, Claimant claims to have a lien upon the premises herein described in the amount of $18,070.61 plus interest and costs. Respectfully submitted, REAGER & ADLER, P.C. ~~~ Date: January 12, 2009 Thom O. Williams, Esquire Attorney I.D. No. 67987 Wayne S. Martin, Esquire Attorney I.D. No. 208078 2331 Market Street Camp Hill, PA 17011-4642 (717) 763-1383 Attorneys for Claimant r+~r'.-. Y .~. ~~ ~. '; ~~,~,,15-t-R.~;,~ ~T1©N, INC. . ~n~• 1717) 432-~3 ^' F9 ioad East Berlin PA 17316 ~ Ph .` ... _ Submitted To: Spichsr and Company.. Attn: Mark Spicher 1452 ~Trindle Road Carlisie, PA 170797 phone: (717) 240 pax: (717) 240-0206 Project pverview: propose to famish ali the materials and perform all the Spicher Warehouse grope of Work to lnciude: Site Gradin& and Preparation: Bulk~Grading - Cut ~ FIU (Approx- 550 C.Y.) . i~;pgrt Fill Material from Adjacent Site (Approx. 3,500 C.l Place and Compaq Fitl Material rox. 4,227 S.Y•) Grade for Building Pad; Paved and Concrete Areas (APP .. Import and Place Topsoil (ARPrax. 380 C.Y.) Seed and Muich Disturbed Areas (Approx. 3,360 S.Y.) Buiiding Excavation: 9 rox. 565 L.F.) Excavate & Backfili for Exterior & Interior Watl Footin s (rox 11,132 S.F.) Piave and Fine Grade 6° Stone Under Buiiding Pad (App . Sanitary Sewer: Sanitary Lateral Tie into Existing rox. 178 L.F.) Insta116" $DR 35 to within 5' of Building (App lnstatl Manhole Provide Ali Necessary Excavation ~ Backfill Provide AN Necessary Stone for gadding Water Line: Main Tie into Existing rox 18Q L.F.) Install 1" W~-ter Service to within 5' of Buiiding (App Provide All Necessary Ex~-`~°n S~Backflil Provide All Necessary St°ne for Bedding Stone Under Concrete: rox. 102 S.Y.) pace 4" Stone Base and Fine Grade for SidewalksroAp 237 S.Y.) Place 6' Stone Base and Fine Grade for Pad (App rox. 23 S.Y.) Place 6" Stone Base and Fine Grade for Dumpster Pad (App Gas Service: g rox. 175 L.F.) Tie into Existing. Main Excavation and Backfill for Gas Service to Outside of Buildin (App Provide Ali Necessary F_xcavabon & Backfill Provide Afl Necessary Stone for Bedding page 1 of 3 X:\1' Chris R\~1CI Proposal SPicher W>r~1O~° ~vised 5-3.doc _- - ~ S.~,r R~ ~,T 1 ~ N, tNC~ C~ ad ~-East Berlin PA 17316 ..Phone: 71 432-8403 ~ Faz: 71 ~~ 133' dents 14IiD Ro Edo gervice: 9 rox. 135 L.F.) . Excavation and Backflll for Electric Scrvicel'o Outside of Buildin (App Provide Ail Necessary f=xcavation & Backfi Provide All Necessary Stone for Bedding Bite Paving: rox. 2,865 S.Y:) place 6 2A Stone (App Place 4" BCBC (Approx.2;865 S.Y.) Place 1° Wearing (aPProx. 2,865 S.Y.) 1=urnish and Install (7) Bumper Blocks rev. 03-05-07) Furnish and lrstalt Line Painting as per Site Plan (Dated 12-04-06 ' Parking Signage as Per Site Plan (Dated 12-04-06 rev. 03-08"07) Furnish and install Handicap Bid Amount: $121,ppID•QO Proposal Specifications rmits to construct this project. in fees, if 1. Not responsible for securing any or ail necessan ~ }' pe~~` t~~ in8pecdans and tape 9 2. All: engineering- (i.e. stakeout and setting g required, shall be the responsibility others. 3, Not responsible for any .unstable ! unsuitabl t Su ~de elevations alt~~ ell ~ ~~ on hourly 4. If any unstable conditions are encountered a b-9 rode, utility rental rates, to undercut these are re due to settlement off pavement, overload, unstable sutrg 5. Not responsible for pavement fa~lu trenches, etc. 6. All uttldies are bid to W~ j~~5~ement oniy~ No rak ng or rock) removal by machine or other methods• 7, Rough grading of topsoi lied. Screened topsoil not supp nce. Add $10.51) I L.F. for trenching, bedding and backfill only. 8. No telephone trench included in bid p 9. t_andscaping not in included in bid price. 10. No storm sewer included in laid pri~• 11. No roof drains or=downspout included m bid prig: Submitted: C~ ~ Respectfully. ct Estimator Christopher Rued, Probe Waggoner Construction, inc. May 3, ZO07 withdrawn by if not eccePted in 30 da s This proposaE may: be page 2 of 3 ~ x:~l ct~ x~wci >~ sp~~ w~~ is s-3.aoc ;~ ~-GGONER CONSTRUCTION, INC. bonds or permits. 1. We have-.not included costs for any ro sal is valid for. 20 days after whi cement. b~ect to written confirmatton. 2. 13ue m-fl~tuations. in raw material prices this p. Po _ tart of the subcontract aSr 3. Upon shall become an Integra p es that are mutually agreed upon. award, this entire prop t sub'ect to clarifications and Chang from invoice date, 4, We agree to. use the contractor's or owners subcomrac J eat not not automaticailX accept "P`ay When Paid" clauses. in contracts.: Payment. terms are net of w~• Apy ~~° $. WCI does duo later than 60 days. after completion of our scope e to be pm . ess and egress for 1% dlsCODUt net 10: days,: Retaina8_ , made per the above terQis.will. incur an 18°i61~ rovided by the General Contractor. Tms includes providing ingr 6. Clear access for. performing all work to be p ~ meat wit}iin the site. eats during the delivery of serials to-the building, and movement of eq P e to the extent caused by WCI or its ag ~~~' , on is limited to personal injury or property damag . 7: WCI s indemnificati or direct'any modification or addition to the work performance of its work. ublic body or inspect 8. Should owner, Contractor, constru ~ adde d to the~cyon ct price. All requests for extra work shall be made in writin8 covered by mys comract, the cost shall extra work performed by WCI which is not covered by aid for led or to WCI starting the work. Any change order ~ rented and invoiced by WCI on a Time and Material basis, however WCI is entitled to P change order ~ or not. WCI. Neither Contractor nor other extra work. whether reduced to writing lied by a to equipment 9. ~y gquipment or Tools rewired for the execution of this Contract will be supp ~~ of WCI. Any damag subcontractors.may use wCI's equipment or tools without the consent of authorized pe nsibi of the Contractor if the damage inflicted is by Contractor or other subcon~ o~•owner's agent, or tools shall be the respo ~` letion of the contract caused by acts of God, acts delay in comp extra work, incomplete or inaccurate 10. WCI shall be excusedfor-any ublic utilities, public. bodies or inspectors, encies unforeseen by contractor stormy weather, .labor trouble, acts of p eats promptly, or other coating construction documents, failure of owner to make progress paym and beyond the reasonable control of contractor. nsation insurance policy and a comprehensive liability insurance 11. WCI will maintain in full force and affect a workers' compe less than S1,000,OOO.OO per single occurrence,. and shall furnish certificates of insurance to owner be ore policy'in amounts not landslide, subsidence or commencing work. ed by an accident, disaster or calamity, such as fire, storm, flood, aid for by owner as 12. If tht project is destroyed or dama8 or restoring the project shall be p work done by WCI ~ rebuilding eiutliquake~ br by theft or vandalism, any eernent; WCI may keep the job extra work under item 8. a eat shall not be made to WCI under this agt 13. WCI shall have the right to stop work if any p ym idle until all payments due are received. sr~rtsnce of Proposal and are herby accepted. You are authorized The above prices; specifications and conditions are satisfactory ._ , to do the work as Signature: Date:. x:\1 Chris R1WCI Proposal SAicha ~A-atehouse R~~ S'3.doc page 3 of 3 TERMS AND" CONDITIONS Quotation Byron S. Waggoner Construction 135 Bentz Mill Road East Berlin, PA 17316 (717) 432 -8403 Spicher & Company 1452 Trindle Road Carlisle, Pa 17015. 717-240-0797 5/3/2007 1oa rum Spicher 8c Company Warehouse R3 ~4~Enc~-~~°N Carlisle, Pa Atpna Spicher & Company Warehouse R3 l . General Conditions 2 . Site Excavation 3 . Sanitary Sewer 4 . Water Line 5 . Stone-Under Slab 6 . Typical Paving 7 . Gas Line 8 . Building Excavation 9 . Seeding & Mulching 10. Paving 11. Electric Service Total: $121,000.00 Date: 513 /2007 Quotation Submitted B}-: Chri o her R Title: Pro ect E ~ for Pagc 1 of 3 - r -' ' ' R,d ~y~ j~-~-akdown 1. General Conditions 1.00 Ls Mobilization 1.00 Ls Supervision. 1.Q0 Ls Safety 1.00 Ls Fuel 2 Site Excavation Prep Site & Clean-up 1.00 Ls 550.00 Cy Cut & Fill 2 865.00 Sy Fine Grade Paving , Fine Cn'ade Building Pad , 1,237.00 5y 3,500.00 Cy Fill Import Import & Place Topsoil 400.00 Cy 3. Sanitary Sewer Tie Into Existing Lateral 1.00 Ea 6" SDR 35 Pipe 178.00 Lf Manholes 1.00 Ea Rock Excavation 1.00 Ls $8,250.00 $24,339.35 58,106.00 $4,945.00 4 Vhater Line Tie Into Existing Main 1.00 Ea 1" Water Service 180.00 Lf Rock Excavation I.00 Ls $7,239.02 5• Stone -Under Slab 6" 2B Stone Under Building 1,237.00 Sy 4" 2B Stone Under Sidewalk 102.00 5y 6" 2A Stone Under Dump. Pad 23.00 Sy 6. 'I~pical Paving ~ $53,862.00 6" 2A Modified Stone Base 2,865.00 Sy 4" BCBC Course 2,8b5.00 Sy 1~, Nearing Course 2,865.00 Sy 52,220.©0 7. Gas Line Gas Service Exc. & Bckfl Only 175.00 Lf Rock Excavation 1.00 Ls Date: 5/3/2007 Quotation Submitted B}': Title: Pro ect Estimator page 2 of 3 „r......._ ~ _ - -- . - $7,694.50 . S. Building Excavation • 565.00 Lf Footer Excavation & Backfill 1.00 Ls Rock Excavation $1,597.20 9. seeding & Mulching 3,630.00 Sy Seeding & :Mulching $1,376.68 IQ Paving 7.00 Ea Bumper Blocks- 1.0o Ls Line Painting & signs $1,370.25 11. Electric ServiCC 135.00 Lf Electric Trench Exc.& Bkfl $121,000.00 Total: S.~ial ~viaions -••---- i . Bond is not included in bid price. en ' Bering, stakeout, pemr~its, Testing, and tapping fees are not included in bid pri~• 2 . All gm there will be a additional 3 . If unsuitable conditions are encountered t ese areas andg eplace them with suitable materials. charge based on hourly rates to undercut 4 . An relocation or protection far existing utilities wilt be done on a time & materials basis. Y 5 . All utilities axe bid to within 5 ft. of the building foundation wall only. eviction from the original lnd drawuigs ~ constitute a change in the Puce of the original 6 . Any d quotation. 7 , Landscaping not included in-bid price. No raking or rock removal by ~~ or other g . Rough grading of topsoil replacement only. methods. Screened topsoil not supplied. ~9 . No storm sewer included in bid price. 10 . No roof leaders included in bid price. 12 . Pro oral based on the import fill material to be provided by owner on adjacent lot. P Date: 5/3/2007 Quotation Submitted B~-: Christo h r Reed . Title: Pro ect E r Page 3 of 3 VERIFICATION I, David Whitesel, of Waggoner Construction, Inc., am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Date: J< ~ ~ ~ By: Title: ~ 0~ ~ ~- ~ ~. N W tN~^ A( .~+ :"4 ~~ r~ C ~;. ..f~ ~,~ i ., ~~ ~" ~%.~ m L A~ N '~ N !~ ~, ~^ ~~ - J ~~ WAGGONER CONSTRUCTION, INC Plaintiff v. MARK C. SPICHER and KOLENE E. SPICHER, husband and wife Defendants IN THE COURT OF COMMON CUMBERLAND COUNTY, PE1 No.: 09-0150 MLD Term CERTIFICATE OF SERVICE I, Thomas O. Williams, verify that on June 10, 2009, I caused the Notice, which is hereto as Exhibit A, to be placed in the United States mail, first class, postage pre: addressed to Defendants, Mark C. Spicher and Kolene E. Spicher, 517 Halyard W. 17025 and addressed to Defendant's Counsel, Rob Bleecher, Esquire, Pecht & As: Manor Drive, Suite 200, Mechanicsburg, PA 17055. A copy of the certificate of n attached hereto as Exhibit B. Respectfully REAGEI~ Thbr~s O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 1 70 1 1-4642 Telephone: (717) 763-1383 Attorney for Plaintiff, Waggoner Construction iYLVANIA yid and Enola, PA ciates, 1205 iline is Inc. REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: Twilliains(a~ReagerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: Wmartin(cr~,ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Waggoner Construction, Inc. WAGGONER CONSTRUCTION, INC. IN THE COURT OF COMMON P EAS Plaintiff :CUMBERLAND COUNTY, PE SYLVANIA v. No.: 09-0150 MLD Term MARK C. SPICHER and KOLENE E. SPICHER, husband and wife Defendants IMPORTANT NOTICE TO: Mark C. Spicher Rob Bleecher, Esquire and Kolene E. Spicher Pecht & Associates 517 Halyard Way, 1205 Manor Drive, Suite 200' Enola, Pennsylvania 17025 Mechanicsburg, PA 17055 llATE OF NOTICE: June 10, 2009 YOU ARE IN DEFAULT BECAUSE YOU HAVE FALLED TO ENTER A WR[TT N APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WI H THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST OU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF TH[S NOTICE, A JU GMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE OUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS N TICS TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFF RD ONE, GO TO OR TELEPHONE THE FOLLOWING OFF[CE TO FIND OUT WHERE YOU AN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717-249-3166) O. Williams, Esq I.D. No. 67987 2331 Market Street Camp Hill, PA 1 70 1 1-4642 Telephone: (717) 763-1383 • > U.S. POSTAL SERVICE CERTIFICATE OF MAILING - MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT PROVIDE FOR INSURANCE-POSTMASTER_ Received From: REAGER & ADLER, PC 2331 MARKET STREET AMP BILL, PA 17011 - ~ ~ __ III ~ ~ ~ ~31a~~~Y rn w Q ti ~ ~'' ~~ 6Z ~~ , ~~~~~ '~ N ~ ~ / ~ ~ ~{y1s~ HHH One piece of ordinary mall addressed to: /(~,~ C} ~r,~ z ~, ~Zob f3le~cher , Esa ui+re /-~ ~ ~ ~~ ~ ~ ~~Q7 MUl10r ~f1N2 ~$uj l'G ZOO o ~.~13 ~ ,~ ~~ ~ -* rya t, N Mecanan,< csbur a .'~/~ x'105 S __.. PS Fonn 3817, January 2001 /~ U.S. POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT PROVIDE FOR INSURANCE-POSTMASTER Received From: ~'s~j~s~ 233 ~r 4~~ CAMP b>' One piece of ordinary mall addressed ta: '~ ~~~- d ~~N Mark C. S~il:~+er ~ Koltn~ ~. S~~ 51 ~ Daly an d t~Ja~-t Er+ola~ , ~A 110.5 PS Fonn 3817, January 2001 fl'..f ~ ~ w k1N~7,~~s ~ ~ ro ~ InJ Y IU r~ ~ rY~~~ F~ '4~ 3 'r;, ~ ~r~ K ~ r, ~.~ ~,~ .~ C~ -~ r~s t~ .~ tx hl b- ~- ~ ~ . uFiLE.i.; wit="rkC.;~: ~~a9.~~~ ~ i ~~ ~~ ~~ r M~~.w ~ ~~ :3.;+;.Jti F'~~`~i'v~ i"L'v~~s~-~ A d Rob Bleecher, Esquire Attorney I.D. No. 32954 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 717-691-9809 office rbleecher(a~pechtlaw.com WAGGONER CONSTRUCTION, INC., Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-0150 MLD Term MARK C. SPICHER and KOLENE CIVIL ACTION -LAW E. SPICHER, husband and wife, Defendants NOTICE TO DEFEND 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 AN 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 THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 Rob Bleecher, Esquire Attorney I.D. No. 32954 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 717-691-9809 office rbleecher(c~pechtlaw. com WAGGONER CONSTRUCTION, INC., Plaintiff v. MARK C. SPICHER and KOLENE E. SPICHER, husband and wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-0150 MLD Term CIVIL ACTION -LAW NOTICE TO DEFEND LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defende se de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de partir de la fecha de la demanda y la notifcacion. Usted debe presentar una apariencia escrita o en persona o por abodago y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y peude entrar una Orden contra usted sin previo adviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda . Usted puede perder dinero o sus propiedades o ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENT ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION 5E ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION LAWYER REFERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE, PA 17013-3308 717-249-3166 Rob Bleecher, Esquire Attorney I.D. No. 32954 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 717-691-9809 office rbleecher(a,pechtlaw.com WAGGONER CONSTRUCTION, INC., Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-0150 MLD Term MARK C. SPICHER and KOLENE CIVIL ACTION -LAW E. SPICHER, husband and wife, Defendants NOTICE TO PLEAD To: WAGGONER CONSTRUCTION, INC., YOU ARE HEREBY NOTIFIED to file a written response to the enclosed NEW MATTER AND COUNTERCLAIM to Plaintiffs Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully Dated: ~ ~O D j~ By. PECHY'&tgOCIATES, PC Rob 131eecher, Esquire Attorney I.D. # 32594 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 rbleecher echtlaw.com (717) 691-9809 Phone Attorneys for Defendants Rob Bleecher, Esquire Attorney I.D. No. 32954 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 717-691-9809 office rbleecher(a~pechtlaw. com WAGGONER CONSTRUCTION, INC., Plaintiff v. MARK C. SPICHER and KOLENE E. SPICHER, husband and wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-0150 MLD Term CIVIL ACTION -LAW DEFENDANTS' ANSWER. NEW MATTER, AND COUNTERCLAIM TO PLAINTIFF'S COMPLAINT AND NOW, come the Defendants by and through their attorneys PECHT & ASSOCIATES, PC, and make the following Answer, with New Matter and Counterclaim to Plaintiff s Complaint as follows: Defendant acknowledges that Plaintiff has represented this to be true, but after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and it is, therefore, denied. 2. Admitted. 3. Admitted. 4. Admitted in part; denied in part. It is admitted that Plaintiff's Complaint purports to relate to labor and materials provided by Waggoner. However, since Plaintiff makes reference to two separate properties in paragraphs 2 and 3, it is not clear which property the "aforementioned and described property" refers to and is, therefore, denied. 5. Admitted in part; denied in part. It is admitted that the parties entered into a contract. It is denied that the attachments to the Amended Complaint constitute the entire contract between the parties. 6. Denied. Plaintiff failed to complete the work in a good or workmanlike manner and actually caused Defendants to spend additional monies to correct the work of Plaintiffs. 7. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and it is, therefore, denied. 8. Admitted in part; denied in part. It is admitted that Plaintiff submitted invoices to Defendants in the said amount. It is denied that the costs and fees were "allowed" or in "accordance with the contract." In fact, they were contrary to the contract. 9. Admitted. By way of further response, Plaintiff failed to meet its obligations under the contract and acted in violation of specific instructions of Defendants. 10. Admitted in part; denied in part. It is admitted Defendants have paid $112,226.31 to Plaintiffs. It is denied that any additional money is owed to Plaintiff. 11. Admitted in part; denied in part. It is admitted that Plaintiff filed a Mechanic's Lien Claim against Defendants. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment that Exhibit B contains a true and correct copy of the Mechanic's Lien and it is, therefore, denied. 12. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and it is, therefore, denied. 13. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and it is, therefore, denied. WHEREFORE, Defendants respectfully request judgment in its favor and against Plaintiff, and further, that Defendant be awarded its costs, attorney's fees and such other relief as is just and proper. NEW MATTER FIRST AFFIRMATIVE DEFENSE 14. Plaintiff s damages, if any, were caused in whole or in part by its own acts, omissions or conduct, or by the acts, omissions or conduct of persons other than Defendant over whom Defendant had no control and for whom Defendant is not legally responsible. SECOND AFFIRMATIVE DEFENSE 15. Plaintiff s claim for damages should be barred or reduced to the extent Plaintiff has failed to mitigate its damages. THIRD AFFIRMATIVE DEFENSE 16. Some or all of Plaintiff s claims are barred in whole or in part by the doctrine of waiver, estoppel and/or laches. FOURTH AFFIRMATIVE DEFENSE 17. Defendant has at all time acted in good faith in its dealings with Plaintiff. FIFTH AFFIRMATIVE DEFENSE 18. Plaintiffs claims are barred by the defense of accord and satisfaction SIXTH AFFIRMATIVE DEFENSE 19. Plaintiff's claims are barred by the defense of estoppel by silence SEVENTH AFFIRMATIVE DEFENSE 20. Plaintiff s claims are barred by the defense of promissory estopple. EIGHTH AFFIRMATIVE DEFENSE 21. Plaintiff s claims are barred by the defense of Justification. NINTH AFFIRMATIVE DEFENSE 22. Plaintiff s claims are barred by the defense of failure of consideration. WHEREFORE, Defendants request judgment in their favor, plus costs, and such other relief as the court considers just and equitable. COUNTERCLAIM AND NOW, come the Defendants by and through their attorneys PECHT & ASSOCIATES, PC, and aver as follows: 23. Defendants Mark C. Spicher and Kolene E. Spicher, husband and wife, are adult individuals. 24. Defendant Mark Spicher does business under the trade name Spicher Company. 25. Plaintiff is believed to be a Pennsylvania corporation. 26. On or about May 7, 2007, Spicher and Company and Plaintiff Waggoner Construction, Inc., contracted for Plaintiff to pave a roadway on Defendants business property located at Louis Parkway & Carlisle Pike, Carlisle, Pennsylvania, with 4" of base asphalt and 1" of topcoat asphalt. 27. Prior to the asphalt being applied, it was necessary to obtain additional dirt for the roadway. Plaintiffs obtained that dirt from a site adjacent to the Spicher and Company site, which was owned by Triple Crown Corporation. 28. Plaintiff was warned by a Pennsylvania Water Company employee who was identifying buried utilities in the subdivision and also by Mark Spicher that a water main was located on the site and that Plaintiff should use extreme care when excavating for dirt. 29. In spite of the notice and warning from Mark Spicher and Pennsylvania Water Company, Plaintiffs agent did not wait for "Pa. One Call" to mark the exact location and broke a water main pipe causing the entire area of the excavation site to be flooded with water. 30. As a result of Plaintiffs agent's action, Defendants paid Triple Crown Corporation $6,250 for the damage caused by Plaintiff. 31. On or about June 19, 2008, Plaintiff was installing the asphalt on the roadway of Spicher and Company. Due to some confusion over the amount of asphalt to be installed, Mark Spicher specifically instructed Plaintiffs employees and agents, that he only wanted a 1" topcoat installed by Plaintiff 32. In spite of this clear direction from Mark Spicher prior to the asphalt being applied to the roadway, Plaintiffs agents put 1 %z inches of topcoat on the roadway. 33. The additional one half inch of asphalt, which Mark Spicher had specifically stated he did not want, cost an additional $ 6,245.61 above the amount of the one inch of topcoat asked for by Mark Spicher. 34. Plaintiff has attempted to obtain that amount of money from Spicher & Company in spite of the fact that Spicher & Company does not owe the money to Plaintiff. 35. In addition, Mark Spicher had substantially reduced the amount of paving Waggoner had to install. Specifically, Mark Spicher installed over 2,000 square feet of concrete, at his own cost, thereby saving Plaintiff the cost of paving the 2,000 square feet with asphalt. 36. Further, the contract between Plaintiff and Spicher & Company provided that Plaintiff would provide dirt and seeding of the lawn adjacent to the roadway. Plaintiff did not complete that work. Mark Spicher had to complete that portion of the contract himself at additional cost to Spicher & Company. 37. Further the contract between Plaintiff and Spicher & Company provided that Plaintiff would provide and install a sewer lateral complete with clean outs, manhole and all testing required by the Silver Spring Sewer Authority. Plaintiff did not complete that work. Mark Spicher had to complete vacuum testing of the manhole for integrity, schedule a township inspection, and lower the roughed-in sewer clean outs to be flush with the finish grade height. 38. Defendants are due an offset for the amount of labor and materials saved by Plaintiff as a result of the reduction of the amount of asphalt required to complete the contract. 39. Defendants are due an offset for the amount of labor and materials expended by Spicher & Company to complete the landscaping required under the contract. 40. Defendants are due an offset for the amount of labor and materials expended by Spicher & Company to complete the sewer lateral required under the contract. 41. Spicher & Company has requested an off set on the amount owed to Plaintiff for the cost of repair to the adjacent property owned by Triple Crown Corporation and for the savings realized by Plaintiff on the reduction of asphalt and labor required under the contract. 42. Plaintiff has declined to provide any offset to Spicher & Company. 43. By deducting the $6,245 for the additional one half inch of paving that Plaintiff installed in spite of a contrary directive by Mark Spicher, the balance due from Spicher & Company to Plaintiff would be $11,825. By deducting the $6,250 paid by Spicher & Company to Triple Crown Corporation, the balance due to Plaintiff is $5,575. By deducting $ 1500 which represents the reasonable cost expended by Spicher & Company to finish the grading and seeding, the balance due to Plaintiff is $ 4075. By deducting $1600 which represents the reasonable cost expended by Spicher and Company to finish the Sewer Lateral, the balance due to Plaintiff is $2475. By deducting $3500 for the 2000 square feet paving installed by Spicher & Company ,the balance due to Plaintiff becomes a credit that is now due to Spicher & Company of $1025.. Moreover, Spicher & Company has had to incur as yet undetermined legal expenses to resolve this matter. COUNT I BREACH OF CONTRACT 43. Paragraph 1 through 42 are incorporated by reference as if fully set forth herein. 44. The parties entered into a contract for the grading and paving and underground utilities by Plaintiff for Spicher & Company. A copy of the Plaintiff's Proposal and the Acceptance by Spicher & Company is attached to Plaintiff's Mechanic's Lien Claim as Exhibit A, which documents are incorporate herein by reference as if fully set forth. 45. The contract specified the work to be performed and the amount to be paid for the materials and labor. 46. The practice in the industry is to reduce any changes to writing to be signed by the parties signifying agreement as to any and all change of terms and/or change of price. 47. There was never a written change order for the additional one half inch of topcoat of asphalt because Spicher & Company did not agree to the additional one half inch or the additional charge for it. A copy of the "Request for Change Order" (for the one half inch of asphalt) that Spicher & Company did not sign is attached as Exhibit "B," incorporated by reference and made a part hereof. 48. By installing the additional one half inch of asphalt in spite of clear direction to the contrary by Mark Spicher, Plaintiff breached the agreement between the parties. 49. By failing to complete the grading and seeding of the lawn, Plaintiff breached the agreement between the parties. WHEREFORE, Defendants request this Honorable Court hold for Defendants and against Plaintiff and award such amounts this court determines are appropriate including, costs, interest, and such other relief as the court considers just and equitable. COUNT II UNJUST ENRICHMENT 50. Paragraph 1 through 49 are incorporated by reference as if fully set forth herein. 51. Spicher & Company paid $6,250 to Triple Crown Corporation for damage caused to the adjacent property by Plaintiff. A copy of the check payable to Triple Crown Corporation is attached as Exhibit "C," incorporated by reference and made a part hereof. 52. Plaintiff has not reimbursed Spicher & Company for the $6,250 paid to Triple Crown Corporation. 53. Spicher & Company reduced the amount of time and materials that Plaintiff needed to expend to install the asphalt. 54. Plaintiff has not reimbursed Spicher & Company for the monies expended by Spicher & Company to install concrete instead of asphalt. 55. Plaintiff has not reimbursed Spicher & Company for the benefits enjoyed by Plaintiff. 56. Spicher & Company has provided the Plaintiff with items of value and expected compensation in return. 57. Plaintiff s agents acknowledged the benefits and suggested to Mark Spicher that he would be pleased with the invoices that were sent as a result of the considerations provided by Mark Spicher. 58. It would be inequitable and unconscionable for Plaintiff to enjoy the benefit of Mark Spicher's actions without paying for them. WHEREFORE, Defendants request this Honorable Court hold for Defendants and against Plaintiff and award such amounts this court determines are appropriate including, costs, interest, and such other relief as the court considers just and equitable. Respectfully TES, PC RoJa'$le~'ei~er; l~`squire A orney I.D. # 32594 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 rbleecher echtlaw.com (717) 691-9809 Phone Attorneys for Defendants Date: (~ ~ ~ l ~ VERIFICATION I, MARK C. SPICHER state that the averments contained in this document are true to the best of my knowledge, information and belief. Further, I am aware that any false statements made herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: ~ /~ MA VERIFICATION I, KOLENE E. SPICHER state that the averments contained in this document are true to the best of my knowledge, information and belief. Further, I am aware that any false statements made herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: ~~ / ~ ~' ~ • KOLENE E. SPICHER CERTIFICATE OF SERVICE I, Rob Bleecher, Esquire, attorney for the Defendants, MARK C. SPICHER and KOLENE E. SPICHER, husband and wife, hereby certify that I have caused the service of the foregoing papers upon the below-named parties, this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Thomas Williams, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Date: 4O l (O ~ Attorney I.D. # 32594 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 rbleecher(a~pechtlaw com (717) 691-9809 Phone Attorneys for Defendants li /4. ~~C9 ~~~~'~ 17 ~~~~ I 1 ~ t~ r'~-; ~ ~~i~L''G;.;_~1;~ ~. Rob Bleecher, Esquire Attorney I.D. No. 32954 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 717-691-9809 office rbleecher(a,pechtlaw. com WAGGONER CONSTRUCTION, INC., Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-0150 MLD Term MARK C. SPICHER and KOLENE CIVIL ACTION -LAW E. SPICHER, husband and wife, Defendants NOTICE TO DEFEND 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 AN 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 THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 Rob Bleecher, Esquire Attorney I.D. No. 32954 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 717-691-9809 office rbleecher(c~pechtlaw. com WAGGONER CONSTRUCTION, INC., Plaintiff v. MARK C. SPICHER and KOLENE E. SPICHER, husband and wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-0150 MLD Term CIVIL ACTION -LAW NOTICE TO DEFEND LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defende se de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dies de partir de la fecha de la demanda y la notifcacion. Usted debe presenter una apariencia escrita o en persona o por abodago y archivar en la corte en forma escrita sus defenses o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y peude entrar una Orden contra usted sin previo adviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda . Usted puede perder dinero o sus propiedades o ostros derechos importantes pare usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENT ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION LAWYER REFERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE, PA 17013-3308 717-249-3166 Rob Bleecher, Esquire Attorney LD. No. 32954 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 717-691-9809 office rbleecher(a,pechtlaw. com WAGGONER CONSTRUCTION, INC., Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-0150 MLD Term MARK C. SPICHER and KOLENE CIVIL ACTION -LAW E. SPICHER, husband and wife, Defendants NOTICE TO PLEAD To: WAGGONER CONSTRUCTION, INC., YOU ARE HEREBY NOTIFIED to file a written response to the enclosed NEW MATTER to Plaintiff's Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Dated: l~`~ By; PECHT &~~CIATES, PC Koe~cher, Esquire Attorney I.D. # 32594 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 rbleecher echtlaw.com (717) 691-9809 Phone Attorneys for Defendants Rob Bleecher, Esquire Attorney I.D. No. 32954 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 717-691-9809 office rbleecher(a~ pechtlaw. com WAGGONER CONSTRUCTION, INC., Plaintiff v. MARK C. SPICHER and KOLENE E. SPICHER, husband and wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-0150 MLD Term CIVIL ACTION -LAW DEFENDANTS' AMENDED ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, come the Defendants by and through their attorneys PECHT & ASSOCIATES, PC, and make the following Answer with New Matter to Plaintiff's Complaint as follows: Defendant acknowledges that Plaintiff has represented this to be true, but after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and it is, therefore, denied. 2. Admitted. 3. Admitted. 4. Admitted in part; denied in part. It is admitted that Plaintiffs Complaint purports to relate to labor and materials provided by Waggoner. However, since Plaintiff makes reference to two separate properties in paragraphs 2 and 3, it is not clear which property the "aforementioned and described property" refers to and is, therefore, denied. 5. Admitted in part; denied in part. It is admitted that the parties entered into a contract. It is denied that the attachments to the Amended Complaint constitute the entire contract between the parties. 6. Denied. Plaintiff failed to complete the work in a good or workmanlike manner and actually caused Defendants to spend additional monies to correct the work of Plaintiffs. 7. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and it is, therefore, denied. 8. Admitted in part; denied in part. It is admitted that Plaintiff submitted invoices to Defendants in the said amount. It is denied that the costs and fees were "allowed" or in "accordance with the contract." In fact, they were contrary to the contract. 9. Admitted. By way of further response, Plaintiff failed to meet its obligations under the contract and acted in violation of specific instructions of Defendants. 10. Admitted in part; denied in part. It is admitted Defendants have paid $112,226.31 to Plaintiffs. It is denied that any additional money is owed to Plaintiff. 11. Admitted in part; denied in part. It is admitted that Plaintiff filed a Mechanic's Lien Claim against Defendants. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment that Exhibit B contains a true and correct copy of the Mechanic's Lien and it is, therefore, denied. 12. After reasonable investigation Defendant is without knowledge or infornation sufficient to form a belief as to the truth of this averment and it is, therefore, denied. 13. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and it is, therefore, denied. WHEREFORE, Defendants respectfully request judgment in its favor and against Plaintiff, and further, that Defendant be awarded. its costs, attorney's fees and such other relief as is just and proper. NEW MATTER 14. Plaintiff s damages, if any, were caused in whole or in part by its own acts, omissions or conduct, or by the acts, omissions or conduct of persons other than Defendant over whom. Defendant had no control and for whom Defendant is not legally responsible. 15. Plaintiff s claim for damages should be barred or reduced to the extent Plaintiff has failed to mitigate its damages. 16. Some or all of Plaintiff s claims are barred in whole or in part by the doctrine of waiver, estoppel and/or lathes. 17. Defendant has at all time acted in good faith in its dealings with Plaintiff. 18. Plaintiff s claims are barred by the defense of accord and satisfaction. 19. Plaintiff s claims are barred by the defense of estoppel by silence. 20. Plaintiff s claims are barred by the defense of promissory estoppee. 21. Plaintiff's claims are barred by the defense of Justification. 22. Plaintiff s claims are barred by the defense of failure of consideration. 23. Plaintiff s claims are barred by the doctrine of Set-Off based on claims arising from the same transaction or occurrence upon which the Plaintiff s claim is based, to wit: 24. Defendants Mark C. Spicher and Kolene E. Spicher, husband and wife, are adult individuals. Defendant Mark Spicher does business under the trade name Spicher Company. 25. Plaintiff is believed to be a Pennsylvania corporation. 26. On or about May 7, 2007, Spicher and Company and Plaintiff Waggoner Construction, Inc., contracted for Plaintiff to pave a roadway on Defendants business property located at Louis Parkway & Carlisle Pike, Carlisle, Pennsylvania, with 4" of base asphalt and 1" of topcoat asphalt. 27. Prior to the asphalt being applied, it was necessary to obtain additional dirt for the roadway. Plaintiffs obtained that dirt from a site adjacent to the Spicher and Company site, which was owned by Triple Crown Corporation. 28. Plaintiff was warned by a Pennsylvania Water Company employee who was identifying buried utilities in the subdivision and also by Mark Spicher that a water main was located on the site and that Plaintiff should use extreme care when excavating for dirt. 29. In spite of the notice and warning from Mark Spicher and Pennsylvania V4'ater Company, Plaintiffs agent did not wait for "Pa. One Call" to mark the exact location and broke a water main pipe causing the entire area of the excavation site to be flooded with water. 30. As a result of Plaintiff's agent's action, Defendants paid Triple Crown Corporation $6,250 for the damage caused by Plaintiff. 31. On or about June 19, 2008, Plaintiff was installing the asphalt on the roadway of Spicher and Company. Due to some confusion over the amount of asphalt to be installed, Mark Spicher specifically instructed Plaintiff's employees and agents, that he only wanted a 1" topcoat installed by Plaintiff 32. In spite of this clear direction from Mark Spicher prior to the asphalt being applied to the roadway, Plaintiff s agents put 1 1/~ inches of topcoat on the roadway. 33. The additional one half inch of asphalt, which Mark Spicher had specifically stated he did not want, cost an additional $ 6,245.61 above the amount of the one inch of topcoat asked for by Mark Spicher. 34. Plaintiff has attempted to obtain that amount of money from Spicher & Company in spite of the fact that Spicher & Company does not owe the money to Plaintiff. 35. In addition, Mark Spicher had substantially reduced the amount of paving Waggoner had to install. Specifically, Mark Spicher installed over 2,000 square feet of concrete, at his own cost, thereby saving Plaintiff the cost of paving the 2,000 square feet with asphalt. 36. Further, the contract between Plaintiff and Spicher & Company provided that Plaintiff would provide dirt and seeding of the lawn adjacent to the roadway. Plaintiff did not complete that work. Mark Spicher had to complete that portion of the contract himself at additional cost to Spicher & Company. 37. Further the contract between Plaintiff and Spicher & Company provided that Plaintiff would provide and install a sewer lateral complete with clean outs, manhole and all testing required by the Silver Spring Sewer Authority. Plaintiff did not complete that work. Mark Spicher had to complete vacuum testing of the manhole for integrity, schedule a township inspection, and lower the roughed-in sewer clean outs to be flush with the finish grade height. 38. Defendants are due an offset for the amount of labor and materials saved by Plaintiff as a result of the reduction of the amount of asphalt required to complete the contract. 39. Defendants are due an offset for the amount of labor and materials expended by Spicher & Company to complete the landscaping required under the contract. 40. Defendants are due an offset for the amount of labor and materials expended by Spicher & Company to complete the sewer lateral required under the contract. 41. Spicher & Company has requested an off set on the amount owed to Plaintiff for the cost of repair to the adjacent property owned by Triple Crown Corporation and for the savings realized by Plaintiff on the reduction of asphalt and labor required under the contract. 42. Plaintiff has declined to provide any offset to Spicher & Company. 43. By deducting the $6,245 for the additional one half inch of paving that Plaintiff installed in spite of a contrary directive by Mark Spicher, the balance due from Spicher & Company to Plaintiff would be $11,825. By deducting the $6,250 paid by Spicher & Company to Triple Crown Corporation, the balance due to Plaintiff is $5,575. By deducting $ 1500 which represents the reasonable cost expended by Spicher & Company to finish the grading and seeding, the balance due to Plaintiff is $ 4075. By deducting $1600 which represents the reasonable cost expended by Spicher and Company to finish the Sewer Lateral, the balance due to Plaintiff is $2475. By deducting $3500 for the 2000 square feet paving installed by Spicher & Company ,the balance due to Plaintiff becomes a credit that is now due to Spicher & Company of $1025. Moreover, Spicher & Company has had to incur as yet undetermined legal expenses to resolve this matter. 43. Plaintiff has breached its contract with Spicher and Company and an offset is due as a result. 44. The parties entered into a contract for the grading and paving and underground utilities by Plaintiff for Spicher & Company. A copy of the Plaintiff's Proposal and the Acceptance by Spicher & Company is attached to Plaintiff's Mechanic's Lien Claim as Exhibit A, which documents are incorporate herein by reference as if fully set forth. 45. The contract specified the work to be performed and the amount to be paid for the materials and labor. 46. The practice in the industry is to reduce any changes to writing to be signed by the parties signifying agreement as to any and all change of terms and/or change of price. 47. There was never a written change order for the additional one half inch of topcoat of asphalt because Spicher & Company did not agree to the additional one half inch or the additional charge for it. A copy of the "Request for Change Order" (for the one half inch of asphalt) that Spicher & Company did not sign is attached as Exhibit "B," incorporated by reference and made a part hereof. 48. By installing the additional one half inch of asphalt in spite of clear direction to the contrary by Mark Spicher, Plaintiff breached the agreement between the parties. 49. By failing to complete the grading and seeding of the lawn, Plaintiff breached the agreement between the parties. 50. Plaintiff will be Unjustly Enriched as a result of its wrongful conduct, and therefore, Plaintiff s claim should be offset by Defendants' claims as follows: 51. Spicher & Company paid $6,250 to Triple Crown Corporation for damage caused to the adjacent property by Plaintiff. A copy of the check payable to Triple Crown Corporation is attached as Exhibit "C," incorporated by reference and made a part hereof. 52. Plaintiff has not reimbursed Spicher & Company for the $6,250 paid to Triple Crown Corporation. 53. Spicher 8e, Company reduced the amount of time and materials that Plaintiff needed to expend to install the asphalt. 54. Plaintiff has not reimbursed Spicher & Company for the monies expended by Spicher & Company to install concrete instead of asphalt. 55. Plaintiff has not reimbursed Spicher & Company for the benefits enjoyed by Plaintiff. 56. Spicher & Company has provided the Plaintiff with items of value and expected compensation in return. 57. Plaintiff s agents acknowledged the benefits and suggested to Mark Spicher that he would be pleased with the invoices that were sent as a result of the considerations provided by Mark Spicher. 58. It would be inequitable and unconscionable for Plaintiff to enjoy the benefit of Mark Spicher's actions without paying for them. WHEREFORE, Defendants request this Honorable court hold for Defendants and against Plaintiff and award such amounts as this court determines are appropriate including costs, interest, and such other relief as the court considers just and equitable. tted, .TES, PC Rob Bl~che squire Attorney D. # 32594 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 rbleecher~,~law.com (717) 691-9809 Phone Attorneys for Defendants Date: ~ t`~ VERIFICATION I, MARK C. SPICHER state that the averments contained in this document are true to the best of my knowledge, information and belief. Further, I am aware that any false statements made herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: ~ // MA VERIFICATION I, KOLENE E. SPICHER state that the averments contained in this document are true to the best of my knowledge, information and belief. Further, I am aware that any false statements made herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: ~ ~ ZaO~f . • KOLENE E. SPICHER CERTIFICATE OF SERVICE I, Rob Bleecher, Esquire, attorney for the Defendants, MARK C. SPICHER and KOLENE E. SPICHER, husband and wife, hereby certify that I have caused the service of the foregoing papers upon the below-named parties, this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Thomas Williams, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Date: ~ ~~ ~ Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 rbleecher(a,pechtlaw. com (717) 691-9809 Phone Attorneys for Defendants L'u~ ,~~Eo ~~ f't'r ! ~ . r ~'~; ~ ~... _ ~.~~:~.