Loading...
HomeMy WebLinkAbout09-4278David J. Lanza I.D. No. 55782 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 HERBERT, ROWLAND & GRUBIC, INC., Plaintiff V. MANEKIN, LLC Defendant To the Defendant: Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09 - Na'78 0-i" i t T rn, NOTICE TO DEFEND CIVIL ACTION - LAW You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 David J. Lanza I.D. No. 55782 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 Attorney for Plaintiff HERBERT, ROWLAND & GRUBIC, INC., Plaintiff V. MANEKIN, LLC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 49. ?z7f' 6d- CIVIL ACTION - LAW COMPLAINT AND NOW, this day of June 2009, comes the Plaintiff, HERBERT, ROWLAND & GRUBIC, INC., by and through its undersigned attorney, David J. Lanza, and files this Complaint, and in support thereof avers as follows: 1. The Plaintiff, Herbert, Rowland & Grubic, Inc., is a Pennsylvania corporation with an address at 369 East Park Drive, Harrisburg, Dauphin County, Pennsylvania 17111. 2. The Defendant, Manekin, LLC, is a business entity of undetermined nature with an address at 7061 Columbia Gateway Drive, Columbia, MD 21046. COUNT I BREACH OF CONTRACT 3. Plaintiff incorporates the averments of paragraphs one (1) through two (2) as if fully set forth herein. 4. On or about November 11, 2005, Plaintiff and Defendant entered into an agreement whereby Plaintiff agreed to provide and Defendant agreed to pay for engineering services relating to Defendant's real estate development project in Upper Allen Township, Cumberland County, Pennsylvania. The terms of the aforesaid agreement are set forth in the documents attached hereto as Exhibit "A". 5. Plaintiff has fully performed its obligations under the aforesaid contract. 6. The contract was performed in the counties of Dauphin and Cumberland, Pennsylvania. 7. The contract required Defendant to pay to Plaintiff the amount of $111,747.18 "within 30 days of Preliminary Plan approval by the Upper Allen Township Board of Commissioners." 8. The aforesaid Preliminary Plan approval took place on June 15, 2006. 9. Defendant has failed to pay the aforesaid sum or any part thereof. 10. The contract also required Defendant to pay to Plaintiff the sum of $75,000.00 by February 2006. 11. Defendant has paid the aforesaid sum of $75,000.00 pursuant to the aforesaid terms. 12. The aforesaid contract called for compensation for additional services to be paid on a "time and materials basis plus customary reimbursable expenses." 13. Pursuant to the aforesaid terms, Plaintiff has provided invoices to Defendant in the amount of $ 66,686.26 (over and above other required payments under the contract). True and correct copies of the aforesaid invoices are attached hereto as Exhibit "B." 14. The aforesaid contract specifies, in §14, that Plaintiff is entitled to recover its attorney fees for collection of outstanding amounts. 15. Plaintiff's attorney fees are expected to equal or exceed 5 % of the balance due for collection of the outstanding amounts. 16. The aforesaid contract, in §14, specifies that Plaintiff is entitled to recover interest at the rate of 1.5% per month for all outstanding amounts. 17. Interest on the $ 66,686.26 obligation has accrued in the amount of $ 41,941.30 as of June 15, 2009. 18. Interest on the $ 111,747.18 obligation has accrued in the amount of $ 60,343.48 as of June 15, 2009. 19. Plaintiff is entitled to judgment against Defendant in the amount of $ 294,754.13, calculated as follows: Principal Balance $ 178,433.44 Interest through June 15, 2009 $ 102,284.78 5 % Attorney fees $ 14,035.91 Total $ 294,754.13 20. Plaintiff has demanded the total amount due, but Defendant has refused and continues to refuse and neglect to pay the balance due or any part thereof. WHEREFORE, Plaintiff demands judgment against Defendant, Manekin, LLC, in the amount of $ 294,754.13, together with costs, interest from June 15, 2009 and additional attorney fees through trial. COUNT 11 IN QUANTUM MERUIT 21 fully set forth herein. Plaintiff incorporates the averments of paragraphs one (1) through eighteen (20) as if 22. Plaintiff fully performed engineering services and general consulting services for Defendant pursuant to Defendant's requests. 23. Plaintiff conferred a material benefit upon Defendant upon the promise of Defendant to pay the reasonable value of Plaintiff's services. 24. Defendant authorized all work performed by Plaintiff. 25. Plaintiff expected remuneration from Defendant at the time of Plaintiff's performance. 26. Defendant was aware that Plaintiff expected payment for Plaintiff's services. 27. Despite demand by Plaintiff for payment for Plaintiff's services, payment has not been received. 28. Defendant's failure to make payment has resulted in Defendant's unjust enrichment. 29. The value of the aforesaid services (less payments made) to Defendants equals $ 294,754.13 (including interest and attorney fees as set forth above). WHEREFORE, Plaintiff demands judgment against Defendant, Manekin, LLC, in the amount of $ 294,754.13, together with costs, interest from June 15, 2009 and additional attorney fees through trial. COUNT 111 BOOK ACCOUNT 30. Plaintiff incorporates the averments of paragraphs one (1) through twenty-nine (29) as if fully set forth herein. 31. Defendant owes Plaintiff the amount of $ 294,754.13 for services performed (including interest and attorney fees) in accordance with a book account, a true and correct copy of which is attached hereto as Exhibits "A" through "B". 32. Plaintiff has demanded payment from Defendant. 33. Defendant has refused and neglected and still refused and neglects to pay the same or any part thereof. WHEREFORE, Plaintiff demands judgment against Defendant, Manekin, LLC, in the amount of $ 294,754.13, together with costs, interest from June 15, 2009 and additional attorney fees through trial. .615 Respectfully submitted, By: David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Plaintiff VERIFICATION Bruce Yerger, Vice-President of Herbert, Rowland & Grubic, Inc., verify that I am authorized to make the statements herein and that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Dated: h ?Z3 f ?1 ?- Bruce r Exhibit A Engineering & Related Services November 11, 2005 Mr. Richard Alter MANEKIN, LLC 7061 Columbia Gateway Drive Columbia, MD 21046 369 Fast Park Drive 1-Harrisburg, PA 17171 (717) 564-1 121 FAX (717) 564-1 158 Re: Proposal for Subdivision Plans for Proposed Residential Development on the Bumble Bee Hollow Property Upper Allen Township, Pennsylvania Dear Mr. Alter: In response to your request, Herbert, Rowland & Grubic, inc. (HRG) is pleased to present the following cost proposal for the aforementioned work in accordance with the scope of work and general terms as outlined below. GENERAL DESCRIPTION MANEKIN, LLC is considering the development of an approximately 65-acre tract along Bumble Bee Hollow Road in Upper Allen Township. The intention is to construct a mixed-use residential development with an associated internal street network, utilities, stormwater management, etc. Preliminary plans have previously been submitted by others and commented on by the Upper Allen Township Planning Commission, The objective ofHRG under this proposal will be to provide professional engineering services that will include the revision of preliminary plans and associated technical reports addressing comments for submission to Upper Allen Township in accordance with the scope of work described below. SCOPE OF BASIC SERVICES Based upon the above general description and in order to meet your specific project needs, HRG proposes the following scope of services: Task 1- Preliminary Subdivision Desian Services A. Using the previously submitted plans as the basis for design, HRG will revise the Preliminary Subdivision Plan for the project for submission to and review by Upper Allen Township, Cumberland County and other regulatory agencies, and for site construction. The revised plans will consist ofthe following general format. hrgehrg4nc.com ¦ www.hrg-inc.com Harrisburg ¦ Lancaster ¦ State College ¦ Gettysburg ¦ Pittsburgh ¦ Stroudsburg ¦ West Chester ¦ Hermitage ¦ Lewisburg Mr. Richard Alter MANEKIN,. LLC November 11, 2005 Page 2 L' Title Sheet 2, Existing Topographic and Boundary Survey Plan 3. Subdivision Plan (including Lot Consolidation Plan) 4. Grading and Site Utilities Plan 5. Soil Erosion and Sedimentation Control Plan 6. Construction Details and Miscellaneous Information 7. Site Landscaping Plan 8. Street and Utility Profiles i It is assumed that all plans will be prepared to a size 24" x 36" using AutoCAD format. B. ERG will prepare the following engineering reports and submittals, as required for design and approval for the project. 1. Steep Slope Report including: a. Determination of the Stability of the Existing and Proposed Slopes b, Slope Stability Cross Sections C. Requirements for Soil and/or Rock Stabilization 2. Geotechnical Report including: a. Geotechnical Site Evaluation (including terrain description, brief geological history and surface drainage conditions) b. Description of Subsurface Conditions (including description of exploration and sampling methods, soils identification and classification) C. Results of Geotechnical Analysis d. Test Pits (6-8) e. Test Pit Logs £ Test Pit Location Plan g- Results of all Laboratory Testing h. Recommendations Concerning: Stratification Characteristics and Correlated Soil Strengths Potential for Construction and/or Differential Settlements 3. Utility company submittals, as required (i.e., water, sewer, gas and electric). 4. Apply for a sewer module or module waiver through DEP. 5. Pump Station design including DEP Part Il Permit Application. Herbert, Rowland & Grubic, Inc. Mr. Richard Alter MANEKIN, LLC November 11, 2005 Page 3 C. HRG will revise the following previously submitted engineering reports and submittalsi as required for design and approval for the project i. Storm Collection and Stormwater Management System Design Report. 2. Soil Erosion and Sedimentation Control Report including County Conservation District submission and NPDES Permit Application. 3. Traffic Impact Study- Upper Allen Township Ordinances require the submission of aTraflic Impact Study. Per discussions with the Township Engineer, it is assumed that four (4) intersections and the site driveway will be studied. D. Attend municipal/governmental review meetings and design meetings with your office, utility companies and. others, as required for completion of the project. For purposes of this proposal, approximately 20 hours has been allocated for meetings (including travel time) outside ofthe office of HRG. If exceeded, HRG will be entitled to reimbursement on a time and material basis in accordance with the attached Fee Schedule. E. Design required contiguous off-site traffic improvements at the proposed roadway' intersections. It is assumed that the improvements will be limited to road widening, curbing and sidewalk along the property frontage on Old Hollow Road. P. Address comments from review agencies and make plan revisions and resubmissions, as may be reasonably necessary. Services under this portion of the project will be considered complete upon the receipt of all necessary permits and approvals and once the plan has been approved by Upper Allen Township. Additional services will be provided by HRG only if requested by your office. PROPOSALS CONDITIONS AND ASSUMPTIONS Our proposal has assumed that the project can be served by a combination of an extension ofa gravity sewer system to the existing sanitary sewer collection system along the Bumble Bee Hollow Road as well as an on site pump station. We have also assumed that adequate capacity exists in the existing collection, conveyance, and treatment facilities such that no upgrades or special planning will be required. It is also assumed that additional off-site surveying for the design of off-site sewers will not be necessary and will be covered by existing aerial photogrammetry. If this is not the case, services to provide those items can be contracted for an additional fee to be determined. Herbert, Rowland & Grubic, Inc. Mr. Richard Alter MANEKIN, LLC November 11, 2005 Page 4 2. We have assumed. that water service will be obtained from an extension of an existing system. It is also assumed that additional off-site surveying for the design of off-site waterlines will not be necessary and will be covered by existing aerial photogrammetry. If this is not the case, this service can be provided for an additional fee to be determined. 3. We have assumed that the owner will be responsible for the acquisition of any off site easements and/or rights-of-way which may be required for the project. 4. Although HRG is committed to providing services for tracking and expediting the review, permitting and approval phases of the project, no warranties or guarantees are given, expressed, implied, or otherwise relative to the successful completion of this effort. 5. As previously mentioned, the Township Subdivision and Land Development Ordinances require the submission of a Traffic Impact Study. The Township has defined the scope of that study. The costs represented in this proposal for the traffic study are estimated -based upon that scope. Off-site signalization or roadway improvement design and related additional field survey information that may become necessary per the results of the Traffic Impact Study are not part of this proposal. That work, if required, can be contracted separately. SPECIFIC SERVICES EXCLUDED The scope of services and related costs outlined in this proposal do not include the following: • Work performed for variances, rezoning, conditional use, or other similar requests for changes to existing municipal regulations. • Bid phase or construction phase services. • Historical, archeological, endangered species or other similar studies. • Wetland delineation, mitigation design and permitting. • Filing, application and/or permit review fees required for the project. Client or governmental agency requested design revisions resulting in a substantial change to the plans or reports. • As-built sanitary sewer plans or plats for associated rights-of-way. • Final Subdivision Plans (Shall be addressed in separate proposal). • Traffic signal or noncontiguous ofd site intersection improvements. • Other engineering services not specifically referenced in the Scope of Basic Services. Herbert, Rowland & Grublc, Inc. Mr. Richard Alter MANEKiN, LLC November H, 2005 Page 5 • Certified ALTA Survey. Phase I Bog Turtle Survey HRG can provide the above mentioned services as needed as additional services if requested by you. COMPENSATION FOR BASIC SERVICES We propose to complete the work described in our Scope of Basic Services for, an estimated fee of $75,000 plus customary reimbursable expenses. The fee would be paid in three monthly installments of $25,0 00. The first installment would be paid concurrently with the execution of this contract. The second and third payments would occur in January and February of 2006. Additional compensation for services, rendered previously on this project in the amount of $111,747.18, shalt be paid in a lump sum payment within 30 days of Preliminary Plan approval by the Upper Allen Township Board of Commissioners. Total amount of compensation upon Preliminary Plan approval shall be $186, 747.18. Compensation for additional services, if requested, shall be handled on a time and materials basis plus customary reimbursable expenses. Attached and made a part of this proposal is a copy of our 2005 Fee Schedule, which is updated in January of each year. COMPLETION SCHEDULE We propose to begin work on this project immediately upon your authorization to proceed. Additionally, we realize that time is of the essence and, accordingly, we will program the project such that planning and design will be completed in the shortest possible time frame. Please refer to the attached proposed project schedule. HRG provides no guarantee, either expressed or implied, that the project will be approved by the local municipality or other governmental agencies having jurisdiction. AUTHORIZATION We have developed the above-outlined scope of services specifically with your project needs in mind.' To indicate your acceptance of these terms, and authorize the work to begin, please sign the authorization statement below, return one copy to our office, and keep the other for your files. Herbert, Rowland & Grubic, Inc. Mr. Richard Alter MANEKIN, LLC November 11, 2005 Page 6 if you have any questions concerning our proposal, including the Scope of Basic Services, the Completion Schedule, or the attached General Provisions, please feel free to contact me to discuss it in greater detail. We appreciate the opportunity to provide you with professional services in this capacity and look forward to working with you on this project. Thank you. Sincerely, Approved by: Ronald M. Secary, P.E. Service Group Manager EAS/RMS/aeb 3294.003 X,%3Ta294U29.400"mpuW hna2PrupaW-m.:dx Enclosures Herbert, Rowland & Grubic, Inc. Edward A. Stalnecker, P.E. Project Manger ACCEPTED BY., NEKIN, LLC TITLE DATE Herbert, Rowland & Grubic, Inc. HRG angineering & Refitted Services 2005 FEE SCHEDULE Classification Hourly Billing Rates Junior Technician $35.00 Administrative Staff $47.00 Technician I $69.00 Technician II $75.00 Senior Technician $85.00 Staff Professional I $82.00 Staff Professional 11 $85.00 Project Professional $102.00 Senior Professional $135.00 Principal $155.00 Professionals include Engineers, Land Surveyors, Landscape Architects, Planners, Scientists and similar professionals. Technicians include Designers, CADD Operators, Inspectors, Survey Technicians and similar technical staff. All non-exempt employees have overtime rates of 15 times their normal billing rate. Reimbursable expenses are billed at cost plus 10%a, including, but not limited to Travel, Printing, Postage, Photography, Videos, Laboratory Work, Equipment Rental, and special outside Consultants. PLEASENOTE. HRG adjusts the fee schedule annually to reflect the cost of doing business for the coming year. This fee schedule is effective December 1.8, 2004 through Beesivibei i6 b.. K c}? 31 t 2o a FAAdm1dlAeuueim&U005 Fee Schedutal&n CceAw Tc%iuMpdw 0 2003. Herbert, Rowland & Gtuble. Inc. t2/D4 GENERAL PROVISIONS FOR CONSULTING AND DESIGN ENGINEER: CLIENT.• MANEKIN, LLC HERBERT, ROWLAND do GRUBIC, INC ENGINEERING dl RELATED SERVICES PROPOSAVA,GREEMENT DATED: November 11, 2005 PROJECT: Subdivision Plans for Proposed Residential Development on the Bumble Bee Hollow Property - Upper Allen Twp., PA 1. GENERAL: Herbert, Rowland & Grubde, Inc. (herein after referred to as HRG) shall provide for CLIENT professional engineering services in any or all phases of the Project to which the Agreement applies. These services will include serving as Client's Professional Engineering Representative fbr the Projcctt providing professional engineering consultation and advice and famishing customary civil, errvironmental, transportation and related engineering and surveying serviea as required. HRG's ptofeasional services will be performed in accordance with generally accepted rinciples of engineering practice. It is understood that HRG shall not be hold Diable for work performed by other parties, for the accuracy of data supplied by other parties upon which HRG may rely, or for testing or inspection work performed by other parties. 2. TIMING OFPROPOSAL: HRG agrees that the Proposal/Agreement shall remain open and may be accepted by the CLIENT for thirty (30) days from the above date. Acceptance of the Agreement afire the end of the 30-day period shall be valid only If HRG elects, in writing, to reaff mi the Proposal/Agreement and waive its right to reevaluate and resubmit the Proposal/Agreament. 3, CONDUCT OF THE WORK: All concept, preliminary and final plans will be submitted to CLIENT or its authorized re resentative for approval concurrent with proceeding to attempt to secure approvals by local, county, state and all other vemmenM authorities having juris coon over the Project eotcsgp6LlfdR F a , Survey work is weather dapendenk and HRG cannot always guarantee the time or date a survey crew will be available. HRG recognizes the importance of survey scheduling and will makea good faith effort to meeting clients' needs. 4. RIGHT OF ENTRY: CLIENT agrees to provide rights of entry and all permits and permissions necessary for the completion of HRG's service under the A txment - t t HRG computer hardware differing from those used by HRG at the beginning of this Project, nor does HRG confer or transfer any soflwarelit:ense or right io usa with the conveyance of data files. 6, COPYRIGHT. .40 exc[ cr and h Mul mew in to documents prepared for to • ect and t use said fuI t documents for the Project to ha CLIENT upon the fof all invoices rcndered( R6 6b a to trim tnmsfer said license ex t adT Paragraph 9 of chase ttnaml Provisions, Tha failure of H obtainco "ghtregistrationsh 's ownership of these en . 7. INDEhIMFICATION: CLIENT will indemnify and hold harmless HRG, its t"J It officers, directors, shareholders, or agents, emplayy?eeems,, consultants and subcontractors from and sgainst any and all liabilities, rlarrrages, or expanses in connection with any personal injury or property damage arising out of or in any way connected with the negligence, mekfesA. or intentional sets or omissions by CLIENT, its officers, directors, agents, contractors and employees. CLIENT further agrees to indemnify and hold harmless HRG for Any and all tees and expenses incurred in enforcing or defending HRG's right under this Agreement or the performance of its duties under this Agreement. gt -C- a 5. USE OF DOCUMENTS: All document are instruments of service with respect to this Project, fisaKUOtt trEbiitfr) witeNt+ranreHl>L RacrjeWis cornpktad CLIENT may make and retain copies of Documents for information and retera:ce in connection with use on the Pmjact by CLIENT. Such Documents are not intended or represented to be suitable for rouse by CLIENT or others on extensions of the Protect or on any other project. Any such rouse or modification without written verification or adaptation by HRG, as Appropriate for the specific purpose Intended, will be at CLIENT's sole risk and without liability or legal exposure to HRG or to HRG's Consultants. CLIENT shall indemnify and hold harmless HRG and HRG's Consultants from AN claims. damages, losses, and expenses, including attorneys' Ices arising out of or resulting therefrom. Any verification of adaptation of the Documents for extensions of the Project or for any other project will catitle HRG to further compensation w rates to ba agreed upon by CLIENT and HRG. (?t Copies of Documents that may be relied upon by CLIENT are limited to the printed copies (also known as hard copies) that are signed or seated by Hite. Files in electronic media format of text, data, graphics, or of other types that are furnished by HRG to CLIENT are only for convenience of CLIENT. Any conclusion or information obtained orderived fiom such electronic files will be at the user's solo risk If there is A discrepancy between the electronic riles and the hard copies, the hard copies govern. Because date stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic fries Agrees that it will perform acceptance tests or procedures within 30 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any errors detected within the 30-day Acceptance period will be corrected by the party delivering the electronic files. HRG shall not be responsible to maintain documents stored in electronic media format After acceptance by CLIENT. fl When transferring documents in electronic media format. HRG makes no representations as to longterm compatibility, usabfii%or readability ofdocuments resulting from the use of schwam application packages, operating systems, or Y''' HRG may settle any claim for which it has a right of indemnification against CLIENT without CLIENT's consent. Notwithstanding that settlement doeurrmts shall state that HRG does not admit liability and that rat is a disputed claim, HRG shall not be required to prove its liability orthere asonableness of thesettlement to obtain indcmmfication from CLIENT. 8. INSURANCE: HRG and its agents, employees and consultants are covered by Worker's Compensation insurance and have limited coverage under public liability and property damage insurance policies. Certificates of insurance will be provided upon request. HRG shall not be responsible for any loss, damage, or liability beyond the amounts, limits and conditions ofsuch insurance. Additional covcraga may be obtained at the CLIENT's expeas. Failure to exercise this option waives any claims of liability beyond such limits. If thcCLIENT obtains a builder's risk policy for the construction phase of this Project, HRG shall be a named insured. 9. ASSIGNS: CLIENT and HRG each binds itselfand its partncrs, successors, executors, administrators, assigns, and legal representatives to the other party of this Agreement and to the partners, successors, executors, administrators, assigns, and legal representatives of such other patty in respect to all covenants, Agreements and obligations of this Agreement Neither CLIENT nor HIM shall assign or transfer any rights under or interest in this Agreement without the prior written consent of the other, except to she extent that the effect of this limitation may be restricted by law. ID. SUBCONSULTANIT: HRG has the right to employ or retain such independent consuhants, associates and subcontractors as it may deem appropriate to assist it in the performance ofthe services required. 11. SAFETY RESPONSIBILITY. HRG is not responsible for any safety precautions or programs of the CLIENT or any contractors working on the Project except for the safety of HRG's own employees. 12. CONTROLLING LA IV The Letter Agreement is to be governed by the laws of the Commonwealth of Pennsylvania which is the principal plate of business of HRG. 13. HAZARDOUS SUBSTANCES: CLIENT represents and warrants to HRG that It has and will comply with all obligationsimposel by applicable law Wort the generation, storage or disposal of hazardous substances muter waste and that it will promptly notify HRG of any notices concerning such matters. CLIENT agrees to hold harmless, identify and defend HRG from and against any and all damages and liabilities And expenses arising out ofor in any wayconnected 12104 Page 1 oft pages 3) PS4 with the presence, discharge, exposure, release, orescape of hazardous substances, or wastes of any kind, excepting only such liability as may arise out of the sole negligence of HRG in theperformance ofservices under this Agreement. 14. PAYMENTS; Invokes will bo submitted by HRG on a monthly basis as the work proceeds. Payments will be due and payable in full on receipt ofan invoice by CLIENT without retainagq and will not be contingent upon receipt of funds from third parties. If fees are not paid in full within 30 days of the date of the invoice, HRG reserves the right to pursue all remedies, including withdrawing certifications, stopping work on three (3) days' prior written notice, and retaining all documents without recourse. [fat any time an Invoice remains unpaid for a period in excess of 30 days, interest of the rata of IVkW per month will be charged on past-due accounts. CLIENT agrees to indemnify and hold harmless HRG from and against any and all reasonable fbes, expenses and costs incurred by HRG including, but not limited to, court costs, arbitrators and attorneys' fees and other claim related expenses incurred in the collection process. All invoicing will be substantiated by HRG cost record sheets and work order system, all of which shall be mede available to CLIENT upon request and during regular working hours for inspection and audit. Time spcntin additional detailing of Invoices is considered extra effort on the Project and will be invoiced as additional work along with any related cost of making copies and reproductions. Any increase In HRG's cost after'the effective data of the Agreement resulting from slate or federal legislation shall be reimbursed by the CLIENT, Timely payment of invoices is it condition of this Agreement. Failure to make payments in full within the time limits stated above will be considered substantial noncompliance with the terms of this Agreement and will be cause for termination of the Agreement if HRG so chooses. Unless otherwise agreed in writing, all fees and costs payable to HRG pursuant to this Agreement are payable at HRG's principal place of business in Dauphin County, Pennsylvania. its i or State Court in Dauphin County nns Iva ' o er tionat sole 0641w plan fpaymen HRG elsewhere shall not constitute aw tireserpkretltenk addition to its other remedies, HRG reserves the right to withhold submission CLIENT or any third party municipolity or agency) of any plans or other documents and withhold performance of any other term of this Agreement upon de0aft by CLIENT of any of CLIENT's obligation under this Agreement. ./,115 TERMINATIONt The obligation to provide further services under this 7tgratment maybe terminated by either party upon three (3) days' written notice in the event of a substantial failure by the other patty to perform in accordance with the terms hamof through no fault of the terminating party. CLIENT agrees to be liable and pay HRG for all labor done, work performed, materials furnished, and all expanses incurred for all work and additional work up to and including the day work is terminated, In accordance with the notice required under this section. i but e CLIENT`S inability to provide credit re ceannAltwg, ptable to HRG prior or f anon of this Agreement. Notwithstanding the o HRG to request said credit references shall not. retieve client ofits obli rrn un to 16. THIRD PARTYBENEFICIARIES: Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the CLIENT and HRG, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole Bad exclusive benefit ofCLENTand HRG and not for the benefit of any other party, 17. LIMITATION OF LIABILITY: HRG shall endeavor to perform the services under this Agreement with the care and skill ordinarily used by members of HRG's profession practicing under similar conditions at the same time and in the same locality. There are no other warranties, express or implied, including, without limitations, no warranties of merchantability or fitness for particular purpose, made by HRG in this Agreement or in any reports, opinions, drawings, specifications or other documents furnished by HRG under this Agreement, or otherwise. HRG shall not be liable for the results of services performed with professional care and skill. To the fullest extent permitted bylaw, HRG's total liability to CLIENT for say and all injuries, claims, losses, expenses or damages whatsoever arising out of or in any way related to the Project or this Agreement from any cause orcauses including, but not limited to. MRG's negligence, errors, omissions, strict liability, intentional acts, breach of contract or breach ofwaranty shall not exceed the total compensation received by HRG under this Agreement, or th e amount paid on behalfof HRG by their insurers in settlement or satisfaction of CLIENT's claims under the terms and conditions of HRG's professional insurance policy or policies applicable thereto, whichever is greater. HRG presently carries professional liability insurance coverage with a limit of liability of 52,000,000 for all claims made and claim expenses during ;a policy term. HRG cannot, therefore, assure the CLIENT that the coverage limit will be available for the CLIENT's projecL Additional coverage for the CLMNN project may be obtained at the CLiENT's expense. Failure to exercise the option of obtaining additional project coverage waives any of the CLIENT's claims in excess of the amount of coverage remaining at the time the CLIENT makes a claim. i M DESIGN WITHOUT CONSTRUCTION PHASE SERVICES: 11 is understood and agreed dust HRG's Basic Services under this Agreement do not include project observation or review of the Contractor's performance or any other construction phase services, and that such services will be provided by the CLIENT. The CLIENT assumes all rcsponsibtllt, fbr interpretation of the Contract Documents and for construction observation and administration and waives any claims against HRG that may be in any way connected thereto, In addition, the CLIENT agrees, to the fullest extent permitted by low, to indemnify and hold HRG barmless from any loss, claim or cost, including reasonable attorneys' fees and costs of defense, arising or resulting from the performance of such services by other persons or entities mW from any and all claims arising from modifications, clarifications, interpretations, adjustments or changes made to the Contract Documents to reflact changed field or otter conditions, except for claims arising from the sole negligence or willful misconduct of HRG. If the CLIENT requests in writing that HRG provide any specific construction phase services, HRG will submit additional General Provisions for Construction Services and HRG shall be compensated for tbese Additional Services. ?C 19. RECORD DRAWINGS. Record Drawings will not be prepared for this project unless the CLIENT specifically requests and agrees to compensate HRG for the extra work. HRG will then prepare a set of reproducible record prints of Drawings showing those changes made during the construction process based upon the marked-up prints, drawings, and other data furnished by theContructor(s) to HRG and which HRG considers significant. It is noted that HRG was not present noninvolved in the construction project and has no information pertaining to the validity or completeness of the marked-up prints provided by the Contractor(s). Because these Record Drawings are based on unverified Information provided by other parties which will he assumed reliable, HRG cannot and does not warrant the accuracy, 20. CONTRACTOR/MANUFACTURER SUPPLIED DESIGNS. The Work may require the famishing and supplying of design services for such products as pre-manufactured buildings, tanks, special structures end systems, etc. CLIENT shall not hold HRG responsible for any such design which is furnished by others. of 21, OTHER WORK: If the CLIENT requests HRG to provide engineering services on other Projects before a written Agreement is consummated for the other Project, the terms and conditions of this Agreement shall apply in full. 22. AUTHON17T TO SIGN: The individual signing this Agreement warrants that he has authority to sign as, or on behalf of CLIENT for whom or for whose benefit HRG's services are mndored. If such individual does not have such authority, he understands and agrees that he Is personally responsible for this Agreement to HRG in addition to any liability which CLIENT may have. 23. MAR%ETINGIADVERTISING CLIENT hereby authorizes and grants to HRG the right to display a company sign at the project site during the construction phase of the projccL CLIENT also grants HRG the right to use project related photographs, renderings, artisfs depictions, project related articles and ibis like for marketing and advertisement purposes of the firm without further authorization from or compensation to the CLIENT. HRG will be responsible for securing any applicable permits and/or approvals associated with the installation of said project signs and for all direct costs associated with internal marketing and advertising activities. 24. ENTIREAGREEMENT. These General Provisions, any drawings, plans, plats, and/or exhibits attached hereto, and the Proposal or Agreement to which these items are attached, set forth the entire understanding and agreement between the parties with respect to the subject matter contained therein and shall be binding upon and inure (except as otherwise provided herein) to the benefit ofthe parties and their respective successors and assigns. This Agreement supersedes all prior documents, agreements, and understandings between the parties with respect to the transactions contemplated hereby. 12/04 Page 2 of 2 pages (EA3) PS4 Exhibit B HRG ,Herbert, Rowland & Grubic, Inc. Engineering & Related Services MANEKIN, LLC 7061 Columbia Gateway Drive Columbia, MD 21046 Attn: Richard Alter 369 East Park Drive Harrisburg, PA 17111 (717) 564-1 121 FAX (717) S64-1158 Invoice No: 38416 Date: 03/02/2006 Page: 1 ID #: 3294 Terms: Net 30 Days NOTE: Please Include Invoice number on your check Made Payable to: Herbert, Rowland & Grublc, Inc. Re: 3294.003 Prelim Subdivision Upper Allen Property Client Manager: Ronald M Secary Professional services rendered January 21, 2006 to February 17, 2006 for the referenced project. Professional Services Administrative Project Professional Staff Professional I Staff Professional II Technician I Technician II Total Professional Services - 2.05 61.00 2.00 1.50 1.50 2.50 70.55 Reimbursable Expense Mileage-Company Vehicles Mileage-Employee Vehicles Xerox Copies Blueprints/Bond Outside Reproductions & Services Permits/Applications Postage Miscellaneous Charge Total Reimbursable Expenses $1,464.62 Invoice Total $9,222.12 Total Now Due $9,222.12 Hours Amount $102.50 $7,015.00 $180.00 $142.50 $105.00 $212.50 $7,757.50 Amount $8.32 $66.57 $1.49 $139.70 $250.73 $770.00 $6.16 $221.65 HR Engineering & Related Services 369 East Park Drive Harrisburg, PA 17111 (717) 564-1 121 FAX (717) 564-1 158 Invoice No: 38416 Project No: 3294.003 Page: 2 ID M 3294 ***A finance charge of 1.5% per month (18% annually) will be added to all delinquent accounts.*** HRG Herbert, Rc Engineering & Related Services MANEKIN, LLC 7061 Columbia Gateway Drive Columbia, MD 21046 Attn: Richard Alter 369 East Park Drive Harrisburg, PA 17111 (717) 564-1 121 FAX (717) 564-1 158 Invoice No: 38998 Date: 04/10/2006 Page: 1 ID #: 3294 Terms: Net 30 Days NOTE: Please include Invoice number on your check Made Payable to: Herbert Rowland & Grubic, Inc. Re: 3294.003 Prelim Subdivision Upper Allen Property Client Manager: Ronald M Secary Professional services rendered February 18, 2006 to March 24, 2006 for the referenced project. Professional Services Hours Amount Administrative 10.05 $502.50 Junior Technician 1.10 $44.00 Principal 1.00 $155.00 Project Professional 85.00 $9,775.00 Senior Professional 15.00 $2,100.00 Senior Technician 12.50 $1,187.50 Staff Professional 1 24.50 $2,205.00 Staff Professional II 32.50 $3,087.50 Technician 1 9.50 $665.00 Technician 11 41.50 $3,527.50 Total Professional Services 232.65 $23,249.00 Reimbursable Expense Amount Mileage-Company Vehicles $81.75 Mileage-Employee Vehicles $153.25 Xerox Copies $416.63 Blueprints/Bond $631.40 Outside Reproductions & Services $15.68 Postage $40.84 Total Reimbursable Expenses $1,339.55 Invoice Total $24,588.55 HRG Engineering & Related Services 369 East Park Drive Harrisburg, PA 17111 (717) 564-1 121 FAX (717) 564-1 158 Invoice No: 38998 Project No: 3294.003 Page: 2 ID M 3294 Total Now Due $24,588.55 ***A finance charge of 1.5% per month (18% annually) will be added to all delinquent accounts.**' HRG -Herbert, Rowland & Grubic, Inc. Engineering & Related Services MANEKIN, LLC 7061 Columbia Gateway Drive Columbia, MD 21046 Attn: Richard Alter 369 East Park Drive Harrisburg, PA 17111 (717) 564-1 121 FAX (717) 564-1 158 Invoice No: 39739 Date: 05/08/2006 Page: 1 ID #: 3294 Terms: Net 30 Days NOTE: Please include invoice number on your check Made Payable to: Herbert, Rowland & Grubic, Inc. Re: 3294.003 Prelim Subdivision Upper Allen Property Client Manager: Ronald M Secary Professional services rendered March 25, 2006 to April 21, 2006 for the referenced project. Professional Services Hours Amount Administrative 6.90 $345.00 Project Professional 48.50 $5,577.50 Senior Technician 4.50 $427.50 Staff Professional 1 1.50 $135.00 Staff Professional II 1.00 $95.00 Technician 1 3.50 $245.00 Technician II 12.00 $1,020.00 Total Professional Services 77.90 $7,845.00 Reimbursable Expense Amount Mileage-Company Vehicles $29.37 Mileage-Employee Vehicles $24.48 Xerox Copies $225.23 Blueprints/Bond $355.03 Outside Reproductions & Services $564.80 Total Reimbursable Expenses $1,198.91 Invoice Total $9,043.91 Total Now Due $9,043.91 "'A finance charge of 1.5% per month (18% annually) will be added to all delinquent accounts.' HRG Engineering & Related Services MANEKIN, LLC 7061 Columbia Gateway Drive Columbia, MD 21046 Attn: Richard Alter Re: 3294.003 Prelim Subdivision Upper Allen Property Client Manager: Ronald M Secary NOTE: Please Include invoice number on your check Made Payable to: Herbert Rowland & Grub/a, Inc. 369 East Park Drive Harrisburg, PA 17111 (717) 564-1 121 FAX (717) 564-1 158 Invoice No: 40418 Date: 06/08/2006 Page: 1 ID #: 3294 Terms: Net 30 Days Professional services rendered April 22, 2006 to May 26, 2006 for the referenced project. Professional Services Hours Amount Administrative Project Professional Senior Professional Staff Professional II Technician II 5.10 70.50 4.00 4.00 18.00 $255.00 $8,107.50 $560.00 $380.00 $1,530.00 Total Professional Services 101.60 Reimbursable Expense Mileage-Employee Vehicles Xerox Copies Blueprints/Bond Outside Reproductions & Services $10,832.50 Amount $52.39 $221.77 $137.50 $382.95 Total Reimbursable Expenses $794.61 Invoice Total Total Now Due $11,627.11 $11,627.11 """A finance charge of 1.5% per month (18% annually) will be added to all delinquent accounts.- r HRG Engineering & Related Services MANEKIN, LLC 7061 Columbia Gateway Drive Columbia, MD 21046 Attn: Richard Alter Re: 3294.003 Prelim Subdivision Upper Allen Property Client Manager: Ronald M Secary NOTE: Please Include Invoice number on your check Made Payable to: Herber4 Rowland & Grubic, Inc. 369 East Park Drive Harrisburg, PA 17111 (717) 564-1 121 FAX (717) 564-1 158 Invoice No: 40956 Date: 07/06/2006 Page: 1 ID #: 3294 Terms: Net 30 Days Professional services rendered May 27, 2006 to June 23, 2006 for the referenced project. Professional Services Hours Amount Junior Technician Project Professional Technician I Technician 2 Total Professional Services 0.40 $16.00 25.00 $2,875.00 2.00 $140.00 33.85 $2,877.25 61.25 $5,908.25 Consulting Fees Advantage Engineering LLC Total Consulting Fees Reimbursable Expense Amount $1,754.72 $1,754.72 Amount Mileage-Company Vehicles $23.01 Mileage-Employee Vehicles $80.77 Blueprints/Bond $126.50 Total Reimbursable Expenses $230.28 Invoice Total $7,893.25 Total Now Due $7,893.25 HRG 'Herbert, Rowland & Grubic, Inc. Engineering 6 Related Services 369 East Park Drive Harrisburg, PA 17111 (717) 564-1 121 FAX (717) 564-1 158 Invoice No: 40956 Project No: 3294.003 Page: 2 ID M 3294 ***A finance charge of 1.5% per month (18% annually) will be added to all delinquent accounts.*** HRG Engineering & Related Services MANEKIN, LLC 7061 Columbia Gateway Drive Columbia, MD 21046 Attn: Norman Suss Re: 3294.003 Prelim Subdivision Upper Allen Property Client Manager: Ronald M Secary Invoice No: 41689 Date: 08/03/2006 Page: 1 ID #: 3294 Terms: Net 30 Days NOTE: Please Include invoice number on your check Made Payable to: Herbert, Rowland & Grubk, Inc. 369 East Park Drive Harrisburg, PA 17111 (717) 564-1 121 FAX (717) 564-1 158 Professional services rendered June 24, 2006 to July 21, 2006 for the referenced project. Professional Services Hours Amount Project Professional Technician 2 Total Professional Services $690.00 $1,343.00 $2,033.00 6.00 15.80 21.80 Cansulting Fees Advantage Engineering LLC Total Consulting Fees Reimbursable Expense Amount. $1,177.22 $1,177.22 Amount Blueprints/Bond Outside Reproductions & Services $13.75 $199.80 Total Reimbursable Expenses $213.55 Invoice Total Total Now Due $3,423.77 $3,423.77 ***A finance charge of 1.5% per month (18% annually) will be added to all delinquent accounts.*** HRG Engineering & Related Services MANEKIN, LLC 7061 Columbia Gateway Drive Columbia, MD 21046 Attn: Richard Alter Re: 3294.003 Prelim Subdivision Upper Allen Property Client Manager: Ronald M Secary Invoice No: 42285 Date: 09/07/2006 Page: 1 ID #: 3294 Terms: Net 30 Days NOTE: Please Include Invoice number on your check Made Payable lo: Herbert; Rowland & Grubla, Inc. 369 East Park Drive Harrisburg, PA 17111 (717) 564-1 121 FAX (717) 564-1 158 Professional services rendered July 22, 2006 to August 25, 2006 for the referenced project. Professional Services Hours Amount Project Professional Technician I Total Professional Services $460.00 $245.00 4.00 3.50 7.50 $705.00 Reimbursable Expense Blueprints/Bond Amount $5.50 Total Reimbursable Expenses $5.50 Invoice Total Total Now Due $710.50 $710.50 ***A finance charge of 1.5% per month (18% annually) will be added to all delinquent accounts.*** HR Engineering & Related Services MANEKIN, LLC 7061 Columbia Gateway Drive Columbia, MD 21046 Attn: Richard Alter 369 East Park Drive Harrisburg, PA 17111 (717) 564-1 121 FAX (717) 564-1 158 Invoice No: 43038 Date: 10/06/2006 Page: 1 ID #: 3294 Terms: Net 30 Days NOTE: Please include Invoice number on your check Made Payable to: Herbert, Rowland & Grubic, Inc. Re: 3294.003 Prelim Subdivision Upper Allen Property Client Manager: Ronald M Secary Professional services rendered August 26, 2006 to September 22, 2006 for the referenced project. Reimbursable Expense Amount Outside Reproductions & Services $33.30 Total Reimbursable Expenses $33.30 Invoice Total $33.30 Total Now Due $33.30 ***A finance charge of 1.5% per month (18% annually) will be added to all delinquent accounts.*** HRG ?rubic, Inc.: Engineering 6 Related Services Invoice No: 44304 MANEKIN, LLC Date: 12/04/2006 7061 Columbia Gateway Drive Page: 1 Columbia, MD 21046 ID #: 32,94 Attn: Richard Alter Terms: Net 30 Days NOTE: Please Include Invoice number an your check Made Payable to: Herbert Rowland d Grubk, Inc. Re: 3294.003 Prelim Subdivision Upper Allen Property Client Manager: Ronald M Secary 369 East Park Drive Harrisburg, PA 17111 (717) 564-1 121 FAX (717) 564-1 158 Professional services rendered October 21, 2006 to November 17, 2006 for the referenced project. Professional Services Hours Amount Project Professional Total Professional Services 1.25 1.25 $143.75 143.75 Invoice Total $143.75 Total Now Due $143.75 ***A finance charge of 1.5% per month (18% annually) will be added to all delinquent accounts.*** Q -f 18.50 PQ A7r/ ae I sco4 Wt aa7IIS Sheriffs Office of Cumberland County R Thomas Kline Sheriff Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor a«r?r1, ct trrn yr ?? a QFFiCE A LED--0 ti 10F TR7: 2209 vu G (t' 12: iii} Herbert, Rowland & Grubic, Inc. i vs. Manekin, LLC Case Number 2009-4278 SHERIFF'S RETURN OF SERVICE 06/25/2009 On this date R. Thomas Kline, Sheriff mailed the within complaint and notice by certified mail, return receipt requested to Manekin, LLC. 07/27/2009 R. Thomas Kline, Sheriff, who being duly sworn according to law, states that he made a diligent search and inquiry for the within named defendant to wit: Manekin, LLC, but was unable to locate them in his bailiwick. He therefore returns the within Complaint and Notice as not found as to the defendant Manekin LLC. Request for service at 7061 Columbia Gateway Drive Columbia, MD 21046 by certified mail was returned "not deliverable as addressed, unable to forward" by the Post Office. An exact address is not available. SHERIFF COST: $40.27 July 27, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF IWR ? f ? ?s _ i LL 60 [j?tt1Vt1 '.. rU L rq ro Ln m 0 0 0 0 Ln -- m o 0 r`- .; N ? N N ? a) 'o D) _0 } C } ¢ ¢ O Z Q Cl. O cU E 3: o 0 m N -0 L2 2 CL ? ? ? d C`• v ?, m m CL a) T o 7 N f- 5 m N c U N W Z U N N C ¢ N U) A C/) Q 11 El cc ¢ x m O M 7 N ? a N > a a E??'?1° H Q A ' o yt TE 4) >i aN°?6Y ?p E cn c- 0)) U n H ? ?t E--l O Co a) C> 0 L a O r{ N ( N Co V -a E J.; 8 N N H t2? ? C! a r y co ? E i E C ?•_ o H a Q 2 '-"g °' Z S H H -o3«w a ? >, a H L4 -i EECYCo 0 D F4 °a)'°o=L U-=a coQ o ¢ O g N N o N m I_ N 4 O David J. Lanza I.D. No. 55782 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 HERBERT, ROWLAND & GRUBIC, INC., Plaintiff V. MANEKIN, LLC, Defendant Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-4278 CIVIL ACTION - LAW PRAECIPE TO REINSTATE COMPLAINT To the Prothonotary: Please reinstate the Complaint in the above matter. By: Respectfully submitted, David'J/ Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 :s-,s Attorney for Plaintiff OF 'ME *y 1009 AUG 28 AN 8: 14 $1?? f ?? ?3 lj f Sheriffs Office of Cumberland County R Thomas Kline Sheri Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor ir at ClullGert RLE[ccCE OF THE p Q?- MOTARY 2009 SEP - 8 AM 10= 3 5 PENNSYLVANA Herbert, Rowland & Grubic, Inc. vs. Manekin, LLC Case Number 2009-4278 SHERIFF'S RETURN OF SERVICE 08/28/2009 On this date R. Thomas Kline, Sheriff mailed the within complaint and notice by certified mail, return receipt requested to Manekin, LLC. 08/31/2009 R. Thomas Kline, Sheriff, who being duly sworn according to law, states that he served the within Writ of Summons upon the within named defendant, Manekin, LLC, in the following manner: On August 28, 2009 the Sheriff mailed by certified mail, return receipt requested a true and correct copy of the within Complaint and Notice to the defendant's last known address of 8601 Robert Fulton Drive, Suite 200 Columbia, MD 21046. The certified mail return receipt card was received by the Cumberland County Sheriffs Office signed by Carol Alston on August 31, 2009. SHERIFF COST: $34.83 September 03, 2009 SO ANSWERS, R THOMA KLINE, SHERIFF ¦ COMON" g item 4 If 111v daiMd. • PrMt Your ft" snci? "Ch me to ft mvmo so that wm am F *04P I&Yw ¦ AttadObb oansl * to b*k of OW loopq, or on the art i[MM. 8 1. Ardds k Wmo"d fo: MANEi4I1M, LLC 8601 amm Rx L», SUITE 200. tOMMIA, MD 21046 ? Agent 3e, 0 No D 0~ nau 0 Exams mom ? p4owwed E3 Fbtum f for Merchandise ? Inamd Mai! ? C.O.D. .?+ 4. ReaMcted D*.wfl (Ex" Fes) El yes 2. Article Number fifer fi, s.roce koo 7004 1350 0003 7145 8183 , PS Form 3811, February 2w4 00*810 F1ban FiMm t ?• 102595-02-wl54o t Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 Heather Z. Kelly, Esquire Sup. Ct. I.D. No. 86291 3401 North Front Street METTE, EVANS & WOODSIDE P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax klsimpson@mette.com Attorneys for Defendant Manekin, LLC HERBERT, ROWLAND & GRUBIC, INC., Plaintiffs V. MANEKIN, LLC, Defendant _ F1L rD-0Fr1C.!7 2a 1 v 29 PH 12:1, 3 1,.?MB R L A 14 tl r,cr rte F; '.,r COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-4278 CIVIL TERM CIVIL ACTION - LAW NOTICE TO PLEAD TO: Herbert, Rowland & Grubic, Inc. c/o David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 YOU ARE HEREBY notified to file a written response to the enclosed New Matter to Plaintiff's Complaint within twenty (20) days from the date of service hereof or a judgment may be entered against you. Respectfully submitted, METTE, EVANS & WOODSIDE By: HEATHER Z. LY Sup. Ct. I.D. 86291 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants, Manekin, LLC Date: December 29, 2010 522661vl Kathryn L. Simpson, Esquire Sup. Ct. I.D. No. 28960 Heather Z. Kelly, Esquire Sup. Ct. I.D. No. 86291 3401 North Front Street METTE, EVANS & WOODSIDE P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax klsimpson@mette.com Attorneys for Defendant Manekin, LLC HERBERT, ROWLAND & GRUBIC, INC., Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 09-4278 CIVIL TERM MANEKIN, LLC, Defendant : CIVIL ACTION - LAW ANSWER WITH NEW MATTER AND AFFIRMATIVE DEFENSES Defendant, Manekin, LLC, by its counsel, Mette, Evans & Woodside, files the following Answer with New Matter and Affirmative Defenses: Admitted based on information and belief. 2. Admitted that Manekin, LLC ("Manekin") is a Delaware LLC. By way of further answer, its correct address is 8601 Columbia Gateway Drive, Columbia, MD 21046. COUNTI BREACH OF CONTRACT 3. The answers of paragraphs 1 through 2 are hereby incorporated. 4. Exhibit A is a written document that speaks for itself. To the extent a response is required, the averments are denied and strict proof is demanded at time of trial. 5. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, the averments are denied and strict proof is demanded at time of trial. 6. After reasonable investigation, Defendant is without knowledge or information regarding the truth of the averments contained in paragraph 6. 7. Exhibit A to the Complaint is a written document that speaks for itself. To the extent a response is required, the averments are denied and strict proof is demanded at time of trial. By way of further response, Defendant's obligation to pay Plaintiff $111,747.18 was subject to the requirements of the Agreement of Purchase and Sale dated December 9, 2005 which is attached hereto as Exhibit 1 (hereinafter the `Bumblebee Hollow Purchase Agreement"). Plaintiff was both aware of and a third-party beneficiary of the Bumblebee Hollow Purchase Agreement. 8. After reasonable investigation, Defendant is without knowledge or information regarding the truth of the averments contained in paragraph 8. 9. Denied as Stated. It is unclear what "aforesaid sum" Plaintiff refers to. 2 10. Exhibit A to the Complaint is a written document that speaks for itself. To the extent a response is required, the averments are denied and strict proof is demanded at time of trial. 11. Admitted. 12. Exhibit A to the Complaint is a written document that speaks for itself. To the extent a response is required, the averments are denied and strict proof is demanded at time of trial. 13. After reasonable investigation, Defendant is without knowledge or information regarding the truth of the averments contained in paragraph 13. 14. Exhibit A to the Complaint is a written document that speaks for itself. To the extent a response is required, the averments are denied and strict proof is demanded at time of trial. 15. After reasonable investigation, Defendant is without knowledge or information regarding the truth of the averments contained in paragraph 15. 16. Denied. To the contrary, the "General Provision" attached to Exhibit "A" is marked up to reflect a I% interest charge. 17. Denied. It is denied that the amounts alleged are due and owing. By way of further response, the interest calculation based on 1 %2% is incorrect as the correct interest factor is 1%. 18. Denied. It is denied that the amounts alleged are due and owing. By way of further response, the interest calculation based on 1 %s% is incorrect as the correct interest factor is 1%. 3 19. Denied. The averments contained in paragraph 19 are legal conclusions to which no response is required. To the extent a response is required, the averments are denied and strict proof is demanded at time of trial. 20. Denied. To the contrary, at all times Plaintiff has requested payment only of the principal amount. WHEREFORE, Defendants respectfully request this Honorable Court enter judgment in its favor and against Plaintiff. COUNT II QUANTUM MERUIT 21. The answers contained in paragraphs 1 through 20 are hereby incorporated. 22. Denied. To the contrary, services provided were substandard and were of a value well under the invoiced price of the services. 23. Denied. To the contrary, services provided were substandard and were of a value well under the invoiced price of the services. 24. Denied. To the contrary, Manekin relied on Plaintiff's representation of the cost of the services in authorizing the performance of the work. 25. Defendant is without information or knowledge sufficient to admit or deny Plaintiff's subjective expectations. 26. Admitted that Defendant was aware that Plaintiff expected payment for its services. By way of further answer, when the cost of those services far exceeded the estimates of Plaintiff, Manekin questioned the services and its responsibility to pay. 4 27. Admitted that Defendant has not remitted the full amount demanded by Plaintiff, as it is denied that further payments are due to Plaintiff. 28. Denied. 29. Denied that any further payments are due to Plaintiff. WHEREFORE, Defendants respectfully request this Honorable Court enter judgment in its favor and against Plaintiff. COUNT III BOOK ACCOUNT 30. The answers contained in paragraphs 1 through 29 are hereby incorporated. 31. Denied. To the contrary, Defendant owes Plaintiff nothing further. 32. Admitted. 33. Denied that any further payments are due to Plaintiff. WHEREFORE, Defendants respectfully request this Honorable Court enter judgment in its favor and against Plaintiff. NEW MATTER 34. Pursuant to the Bumblebee Hollow Purchase Agreement, MOR Acquisition LLC, an entity related to Defendant, entered into an agreement with the prospective seller ("Seller") of real property located in Upper Allen Township, Cumberland County, Pennsylvania, which is more fully described in the Bumblebee Hollow Purchase Agreement (the "Real Property") 35. The purpose of the Bumblebee Hollow Purchase Agreement was, in part, to secure payment for Plaintiff for engineering services related to the Real Property which services Plaintiff had already provided prior to entering into any agreement with Defendant. 5 36. Pursuant to the Bumblebee Hollow Purchase Agreement, Defendant was only required to pay Plaintiff in the event that Defendant decided to purchase or develop the Real Property. 37. In entering into a contractual relationship with Defendant, Plaintiff was, at all times, a third-party beneficiary of the Bumblebee Hollow Purchase Agreement and was aware of the terms of the Bumblebee Hollow Purchase Agreement. 38. Defendant did not purchase or develop the Real Property and the Bumblebee Hollow Purchase Agreement was terminated. 39. When entering into its contractual relationship with Defendant, Plaintiff agreed that it would not retain ownership to documents and instruments of service. See Exhibit A to Complaint, General Provisions at paragraph 5. 40. Based on information and belief, Plaintiff has utilized the documents and instruments of service with respect to the project for the subsequent owner of the property. 41. Plaintiff provided substandard services to Defendant, for which Defendant is not required to make payment. 42. The cost of services provided by Plaintiff significantly exceeded Plaintiff's cost estimates. WHEREFORE, Defendants respectfully request this Honorable Court enter judgment in their favor and against Plaintiff. AFFIRMATIVE DEFENSES 43. Defendant has satisfied its contractual obligations to Plaintiff. 44. Plaintiff's claim for $111, 747.18 plus interest and attorneys fees is barred by the doctrine of mutual mistake. 6 45. Plaintiff s claims are barred by the doctrine of estoppel. 46. Plaintiff failed to perform its contractual obligations to Defendant. 47. Defendant is entitled to set-off any amounts demanded by or awarded to Plaintiff by amounts paid to Plaintiff by Defendant or third-parties for the services performed. 48. Plaintiffs attorneys fee claim is excessive and unreasonable. Respectfully submitted, METTE, EVANS & WOODSIDE By: HEATHER Z. KE Y, E9Q1GIItC Sup. Ct. I.D. No. 86291 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendant, Manekin, LLC Date: December 29, 2010 7 ATTORNEY VERIFICATION I, Heather Z. Kelly, am the attorney for Defendant in the above-captioned action and make this Verification pursuant to Pennsylvania Rule of Civil Procedure 1024(c). The averments in the above-pleading are true and correct to the best of my knowledge, information and belief based on information and documents obtained from Defendant. A verification cannot be obtained from the party within the time allowed for filing this pleading because Defendant is outside the jurisdiction and representatives of Defendant are unavailable due to the holidays. This Attorney Verification will be substituted with a party Verification within a reasonable time. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. DATE: HEATHER Z. KELLY, Esq. CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) by U.S. First Class mail addressed as follows, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure: David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 Attorney for Plaintiffs METTE, EVANS & WOODSIDE HEATHER Z. Y, ESQUI Sup. Ct. I.D. No. 86291 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendant, Manekin, LLC Date: December 29, 2010 533694v1 David J. Lanza I.D.No. 55782 2132 Market Street Attorney for Plaintiff Camp Hill,Pennsylvania 17011 (717)730-3775 HERBERT, ROWLAND & GRUBIC, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 09-4278 V. CIVIL ACTION—LAW MANEKIN, LLC, Defendant PLANTIFFS PRAECIPE TO SATISFY AND DISCONTINUE AND NOW,this j�lay of April 2013,please mark the above case satisfied and discontinued. Respectfully submitted, By: I-- David J. Lanza Attorney I.D.No. 55782 2132 Market Street Camp Hill,PA 17011 Telephone(717)730-3775 =rn C-;