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Home My WebLink About09-4476 CONEWAGO ENTERPRISES, INC., Plaintiff V. INSITE DEVELOPMENT, LLC, and INSITE HOSPITALITY, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. Oq - q4!7 oe eivi l term 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 attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 RHOADS By: Michhil W. Winfield J One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 41 t t Michael W. Winfield, Esquire Attorney I.D. No. 72680 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 E-Mail: mwinfield@rhoads-sinon.com Attorneys for Plaintiff CONEWAGO ENTERPRISES, INC., Plaintiff V. INSITE DEVELOPMENT, LLC, and INSITE HOSPITALITY, LLC, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. ?q - Vq7(o c ?'V COMPLAINT NOW COMES Plaintiff, Conewago Enterprises, Inc., by its attorneys, Rhoads & Sinon LLP, and files the within Complaint upon a Mechanics' Lien Claim as follows: 1. Plaintiff, Conewago Enterprises, Inc., is a Pennsylvania corporation with a principal place of business located at 660 Edgegrove Road, Hanover, York County, Pennsylvania 17331. 2. Defendant Insite Development LLC ("Insite Development"), is a Pennsylvania Limited Liability corporation, with a registered place of business located at 1943 Monterey Drive, Mechanicsburg, Cumberland County, PA 17050. Upon information and belief, Insite Development's current principal place of business is 2055 Technology Parkway, Mechanicsburg, PA 17055. 746948.1 3. Defendant Insite Hospitality, LLC ("Insite Hospitality"), is a Pennsylvania limited liability corporation with a registered place of business located at 1943 Monterey Drive, Mechanicsburg, Cumberland County, PA 17050. 4. Plaintiff filed a Mechanics' Lien Claim on or about March 26, 2009, in the Court of Common Pleas of Cumberland County, Pennsylvania, at Mechanics' Lien No. 09-1899 MLD, a copy of which is attached hereto as Exhibit "A". The averments set forth in the Mechanics' Lien Claim are hereby incorporated in reference in further support of this claim. 5. The party with whom Plaintiff contracted in connection with its Mechanics Lien Claim is Insite Hospitality, LLC. A true and correct copy of the contract entered into between Plaintiff and Insite Hospitality is attached to the Mechanics Lien Claim referenced below. 6. Insite Development is the record Owner of the property upon which the work was performed that gives rise to the Mechanics' Lien Claim upon which this Complaint is filed. 7. At all times relevant hereto, Insite Hospitality represented itself to be the "Owner" in the Contract entered into between itself and Plaintiff. 8. As more fully described in Exhibit "A" attached hereto, Plaintiff supplied labor and materials which were incorporated in the construction of a hotel building on the property owned by Insite Development and/or Insite Hospitality, for which Plaintiff has not been paid.' 9. The amount of Plaintiff's claim is $98,587.72. 1 Although a record search has identified Insite Development as the record owner of the property, the relationship between Insite Development and Insite Hospitality is unknown to Plaintiff at this time. Plaintiff includes Insite Hospitality as an Owner for purposes of this pleading, given the reference in the construction contract to Insite Hospitality as "Owner". In the event that it is established through discovery that Insite Hospitality has no ownership interest in the subject property, then Plaintiff will amend this Complaint accordingly. -2- 10. Plaintiff has satisfied all conditions precedent to the filing of this Complaint. WHEREFORE, Plaintiff Conewago Enterprises, Inc. demands judgment against the Defendants in the sum of $98,587.72, along with interest, cost, and such other relief as the Court deems appropriate. RHOADS By: P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff -3- One South Market Square VERIFICATION David L Donharl, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that he is the Vice President of Operations of Conewago Enterprises, Inc., that he makes this verification by its authority and that the facts set forth in the Complaint are true and correct to the best of his knowledge, information and belief. Date 4 Michael W. Winfield, Esquire Attorney I.D. No. 72680 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Claimant CONEWAGO ENTERPRISES, INC., Claimant V. INSITE DEVELOPMENT, LLC, and INSITE HOSPITALITY, LLC Owner(s) c w v r r , 'r N -- DO IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MECHANICS LIEN NO. O ? - I ?'?Q 14 kD MECHANICS' LIEN CLAIM Claimant, Conewago Enterprises, Inc. ("Conewago"), through its undersigned counsel, Rhoads & Sinon LLP, files this Claim against the improvements and property located at 2055 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, which is more fully described in the Deed attached hereto as part of Exhibit 1 ("Property"), for the payment of a debt due to Conewago pursuant to a written contract between Conewago and Insite Hospitality, LLC ("IHLLC"). In support of this Claim, Conewago avers as follows: 1. Conewago is a Pennsylvania corporation with a principal place of business located at 660 Edgegrove Road, Hanover, PA 17331. Conewago is the party Claimant and files in the capacity of subcontractor to IHLLC. To the extent that IHLLC is considered to be an Owner under the Mechanics Lien Act of 1963, then Conewago files in the capacity of contractor. i 2. Insite Development LLC, upon information and belief, is a Pennsylvania limited liability corporation, with a principal place of business located at 1943 Monterey Drive, Mechanicsburg, Pennsylvania 17050. Insite Development LLC is the record Owner of the Property. 3. IHLLC is a Pennsylvania limited liability corporation with its principal place of business also located at 1943 Monterey Drive, Mechanicsburg, Pennsylvania 17050. Although IHLLC is not the record owner of the Property, IHLLC is represented to be the "Owner" in the contract entered into between Conewago and IHLLC 4. The date of final completion of Conewago's work on the Property was January 20, 2009. Substantial completion of Conewago's work was achieved on October 6, 2008. 5. Formal notice of Conewago's intent to file a Mechanics' Lien Claim was given on February 19, 2009 ("Notice"). A true and correct copy of the Notice, including return receipt, is attached hereto as Exhibit "1" and incorporated by reference. 6. Conewago performed its work, pursuant to a written contract. with IHLLC, a true and correct copy of which is attached as Exhibit "A" to the Notice. 7. The general nature and character of the labor and materials furnished by Conewago is described on the first page of the written contract referenced in paragraph 6 above; on various change orders, copies of which are attached as Exhibit "B" to the Notice; and in a letter from Conewago to Insite Development LLC, dated November 28, 2007, a true and correct Conewago is without information sufficient to determine the legal relationship between Insite Development LLC and IHLLC. The contract between Conewago and IHLLC designates IHLLC as the "Owner" and Conewago as the "Contractor." -2- copy of which is attached as Exhibit "C" to the Notice. All referenced exhibits to the Notice are attached hereto as part of Exhibit 1 and incorporated by reference. 8. The unpaid amount due and owing to Conewago for which this Lien is asserted is $98,587.72. 9. The Property subject to the lien is the property located at 2055 Technology Parkway, Mechanicsburg, Pennsylvania, which is located in the Cumberland Technology Park, identified as Tax Parcel No. 10-14-0839-023, and more fully described in the Deed attached to the Notice as Exhibit "D". The improvement to the Property is the construction of a Comfort Suites Hotel building, and related appurtenances, of which Conewago performed the work identified in paragraph 7 above. WHEREFORE, Conewago Enterprises, Inc. respectfully requests that a Mechanics' Lien be issued in the amount of $98,587.72 against the Property. RHOADS By: One South Market Square\, P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Claimant z Other amounts are due and owing to Conewago which are not subject to this Lien. Conewago reserves its right, vis-a-vis all other amounts. -3- VERIFICATION David L Donharl, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities, that he is the Vice President of Operations of Conewago Enterprises, Inc., that he makes this verification by its authority and that the facts set forth in the Mechanics' Lien Claim are true and correct to the best of his knowledge, information and belief, Date David L. o arl EXHIBIT "1" r F RE, 'S s 1?? NTO K LIP Michael W. Winfield ph (717) 237-6703 fx (717) 231-6637 M W infield@Rhoads-Sinon.com FILE No: 6248/20 February 19, 2009 Re: Comfort Suites, PA No 470 Proiect Mr. Donald H. Erwin, President Insite Hospitality LLC 1943 Montery Drive Mechanicsburg, PA 17050 Dear Mr. Erwin: Mr. Donald H. Erwin Insite Development LLC 1943 Montery Drive Mechanicsburg, PA 17050 Please be advised that we represent Conewago Enterprises, Inc. ("Conewago") with respect to the above-referenced Project. Although Conewago has completed its work in full, it has not received final payment, and is currently due $98,587.72 for amounts billed less amounts paid. In addition, Conewago incurred $4,083.71 in additional costs for change order work that it proceeded with in good faith based upon verbal agreements and without a written change order in place, and $62,285 in structural steel cost increases as a consequence of an Owner caused delay in the commencement of the Project. It is my understanding that you have had conversations with representatives of Conewago regarding the above, but no agreement could be reached with regard to the disputed amounts. It is also my understanding that Insite Hospitality, LLC ("Insite") is disputing the amount of a credit for the deletion of structural metal stud shear walls for the Project. By this letter, Conewago is making one final attempt to reach a resolution without the need to resort to the formal dispute resolution procedures set forth in the Contract Documents. In exchange for payment in the amount of $98,587.72 within fifteen (15) days of the date of this letter, Conewago will forego, and otherwise release Insite, from any claims for the changes it performed without a written change order, and for the structural steel cost increases due to the Owner caused delay referenced above. By making payment in this amount, Insite would waive any claims against Conewago for additional credits associated with the deletion of the work referenced above. Payment made by Insite pursuant to this letter would be considered final payment under the Contract Documents, and would trigger all of the same obligations, satisfactions and releases as final payment would in the ordinary course. Conewago's offer to resolve these issues will expire by the close of business on Friday, March 6, 2009, unless accepted in writing by you. In the event that we are unable to reach an agreement based upon the terms set forth above, Conewago will move forward to collect all amounts due and owing to it under the Contract, including, inter alia, penalties and attorneys fees pursuant to the prompt pay provisions of the Contractor Subcontractor Payment Act. Conewago further reserves the right to file a mechanics' lien against the Property for all amounts due and owing, and is contemporaneously issuing with this letter, a Formal Notice of Intent to File Mechanics Lien. It is Conewago's sincere hope that pursuing the lien will not be necessary. 731599 1 Rhoads & Sinon LLP • Attorneys at Law • Twelfth Floor ; One South Market Square • P.O. Box 1146 T-Torric?-.arrt Ad 1 71 /lo 11 AA . ..L /71 ?\ moo, r». - , i Mr. Donald H. Erwin, Presidei. February 19, 2009 Page 2 Should you have any questions regarding the contents of this letter, please contact me. To the extent you are represented by counsel, your counsel should contact me with any questions. Very truly yours, RHOADS & ?kTI N U By: W. wi: Enclosure cc: Mr. David Donharl MWW/Igr M c...- r eu r3 r n ? _. •,. w,, Lr) Dr .,? Postage $ Certified Fee a O 0 Return Reosipt Fee Postmark 0 (Endorsement Required) i Here 0 Restricted Delivery Fee 0 (Endorsement Required) I- Total Mr Donald H Erwin Sent To Insite Hospitality LLC/Insite oM1 Development LLC street, , M1 or POE 1943 Montery Drive ciryf Mechanicsburg PA 17050 '__•--'__ !{??3tllM Complete items 1, 2, and 3. Also complete Item 4 if Restricted Delivery is desired. Print your name and address on the reverse so that we can return the card to you. K Attach this card to the back of the mailpiece, or on the front if space permits. A. Signature X B. Received by (Printed Name) ? Agent Article Addressed to: Mr Donald H Erwin Insite Hospitality LLC/Insite Development LLC 1943 Montery Drive Mechanicsburg PA 17050 C. Date of Delivei 0. Is delivery address different from Item 1? ? Yes If YES, enter delivery address below: ? No 3. Service 'Type i C tfied Mail ?3 Express Mall ? Registered eReturn Receipt for Merchandis. ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number (Transfer from service label) 7007 1490 0000 7679 5 310 PS Form 3811, February 2004 Domestic Return Receipt 102595.02-M-154 FORMAL WRITTEN NOTICE OF INTENTION TO FILE A MECHANICS' LIEN CLAIM TO: INSITE DEVELOPMENT, LLC Attn: Donald Erwin 1943 Monterey Drive Mechanicsburg, PA 17050 INSITE HOSPITALITY, LLC Attn: Donald Erwin 1943 Monterey Drive Mechanicsburg, PA 17050 This formal Notice is being made to Insite Development, LLC., and Insite Hospitality, LLC, both of which are Pennsylvania limited liability companies with a principal place of business located at 1943 Monterey Drive, Mechanicsburg, PA 17050. 1. Conewago Enterprises, Inc. ("Conewago") is the party claimant for purposes of this Notice. 2. Insite Development, LLC is the record owner of the property which is subject to the lien for which this Notice is provided. 3. The entity with whom Conewago contracted with is Insite Hospitality, LLC, pursuant to a written contract dated January 11, 2008, which designated Insite Hospitality LLC as "Owner" and Conewago as "Contractor". 4. The amount claimed to be due for which a lien may be filed is $98,587.72. Other amounts are due and owing to Conewago for which Conewago reserves the right to seek relief directly from Insite Hospitality. 5. The general nature and character of the labor and materials furnished by Conewago is described on the first page of the written contract referenced in paragraph 2 above, a copy of which is attached hereto as Exhibit "A"; in various executed change orders, copies of which are collectively attached hereto as Exhibit "B"; and in a letter from Conewago to Insite Development dated November 28, 2007, a copy of which is attached hereto as Exhibit "C". 6. The date of final completion of the work for which the claim is made is January 20, 2009. Substantial completion of the work was achieved on October 6, 2008. 731853.1 7. The property subject to the lien is the property located in the Cumberland Technology Park in Mechanicsburg, Pennsylvania, identified as Tax Parcel No. 10-14-0839-023, and more fully described in the Deed attached hereto as Exhibit "D". The improvement to the property is the construction of a Comfort Suites Hotel building and related appurtenances, of which Conewago performed the work identified in paragraph 4 above. 3. Conewago intends to file its Mechanics Lien Claim unless payment is received in the amount set forth in paragraph 3 above, within thirty days of the date of service of this Notice. RHOADS & By: U - U-\aAll {/uvv Michael . Winfield One South Market Square P. 0. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Conewago Enterprises, Inc. -2- r Document Al01 -1997 Standard Form of Agreement Between Owner and Contractor where the basis of payment is a STIPULATED SUM AGREEMENT made as of the I Ith day of January in the year of Two Thousand Eight (/n words, inrlica/e day, ntorilh and year) ADDITIONS AND DELETIONS: BETWEEN the Owner: The author of this document has (Narcre, address and ollrcr it jorncaliorc) added information needed for its completion. The author may also e Hospitality LLLLC have revised the text of the original Infsil sil Monterey, y AIA standard form. An Additions and Mechanicsbu PA 43 nterrg, Drive 19 17050 Deletions Report that notes added information as well as revisions to the standard form text Is available Irom the author and should be and the Contractor: reviewed. A vertical line in the tell (Name, address and other injonvation) margin of this document Indicates where the author has added Conetvngo Enterprises, Inc. necessary Information and where the author has added to or deleted 660 Edgegrove Road from the original AIA text. P. O. Box 407 Hanover, PA 17331 This document has important legal consequences. Consultation with an allomey is encouraged with respect to its completion or modification. The Project is: AIA Document A201-1997, General (Nanne and localion) Conditions of the Contract for I Construction, is adopted in this Comfort Suites PA #470 document by reference. Do not use Mechnnicsburg, PA with other general conditions unless this document is modified. The Architect is: This document has been approved and endorsed (Nance, address and alit er irtfonnation) by The Associated General Contractors al f America. MWT Architecture PC 520 Collins Aikman Drive - Suite 200 Charlotte, North Carolina 28262 The Owner and Contractor agree as follows. Conewago Enterprises, Inc. to furnish and erect the structural package to include: structural steel, B" hollow core floor plank, load bearing structural steel stud wall system including shear walls and non-load bearing exterior steel studs with DensGlass Gold sheathing on exleror walls. Does not Include any interior partitions for hallways, room to room, etc. Init. AIA Document A101 T°-1997. Copyright ®1915, 1916, 1925, 1937, 1951, 1956, 1961, 1963, 1967, 1974, 1977, 1967,1991 and 1997 by The American Inslilule of Architects. All rights reserved, WARNING: This AIAe Document is protected by U.S. Copyright Law and International Trealies. Unoulhorized / reproduction or distribution of this AIA° Document, or any portion of II, may result In severe civil and criminal penalties, and wilt be prosecuted to the under e:picas on maximum 3 extent and re is not for the resale. taw. This docum ent was produced by AIA software at 13:49:19 on 01/11/2006 under Order NNO-101)(1289592t 9592_I which 1 User Notes: (1157310406) ARTICLE 1 THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of [his Agreement; these Form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Contract Documents, other than Modification- nn-- ; Article 8. I (Paragraphs deleted) ARTICLE 2 THE WORK OF THIS CONTRACT The Contractor shall Fully execute the Work described in the Contract Documents, except to the extent specifically indicated in the Contract Documents to be the responsibility of others. ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION § 3,1 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the Owner. (insert the date of commencement ijit differs from the elate 0f [his mill be Agreement or, if applicnblc, stale that the dare ffTed in a notice to proceed.) I Seven days after final inspection and acceptance of footings If, prior to the commencement of the Work, the Owner requires time to rifle mortgages, mechanic's liens and other security interests, the Owner's time requirement shall be as follows: Sixty days from date of agreement § 3.2 The Contract Time shall be measured from the date of commencement. i?Pq,-.4 § 3,3 The Contractor shall achieve Substantial Completion of the entire Work not later than9? da of commencement, or as follows: Ys from the date (Insert number of calendar days. Alternatively, a colendardate may be used when coordinated wirh the date of conintencenrent. Unless stated elsewhere in the Contract Doaurren?s, insert arty requirementsfor earlier Substantial Completion of certain portions of rite Work ) Portion of Work Substantial Completion Date , subject to adjustments of this Contract Time as provided in the Contract Documents. (hrsert provisions, if any, for liquidated damages relating to jniltu•e ro corrtplere on early completion of [lie Work) lime orjor bonus prtyruenfsjor ARTICLE 4 CONTRACT SUM § 4.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance of the Contract, The Contract Sum shall be One Million Eight Hundred Fifty Seven Thousand Six Hundred Sixty One Dollars and No Cents (51,857,661.00 ),subject to additions and deductions as provided in the Contract Documents. § 4.2 The Contract Sum is based upon the following altemates, if any, which are described in the Contract Documents and are hereby accepted by the Owner. (State the numbers or other identiftcation of accepted alternates. If decisions on other alternates are to be male by the Owner subsequent to the execution of this Agreement, attach a schedule ofsnch other alternates showing the to iounf fo• each oud the doe when flint anlotnu expires) Intl. AIA Daeumant A1011r+_ 1997. Copyright m 1915, 1910, 1425, 1937, -------------- 1951.1958,1c961,1963,1267.1974,1977 1987, 1991 and 1997hy The Amerian d institute of Architects. All rights reserved. WARNING; This AiA° Document Is protected by U,S. Copyright Low and International Treaties. Unouthorize reproduction or distribution of this Ale Document, or any portion of It, may result In severe -tuft and criminal penalties, and wilt be prosecuted to the / moximum extent possible under the low. This document was produced by AIA soliware at 13:49;19 on 01111/2000 under Order No.1000269592_1 which 2 expires an 3 /2312 0 0 0, and Is not for resale, User Notes: (1157310406) § 4.3 Unit prices, irany, are as follows: Description Units Price ($ 0,00) ARTICLE 5 PAYMENTS § 5.1 PROGRESS PAYMENTS § 5.1.1 Based upon Applications for payment submitted to the Architect by the Contractor and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. § 5.1,2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: § 5.1,3 Provided that an Application for Payment is received by the Architect not later than th 20th day of a month, the Owner shall make payment to the Contractor not later than the e by the 5th day of the following month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made Owner not later than fourteen ( 14 ) days after the Architect receives the Application for Payment. § 5.1,4 Each Application For Payment shall be based on the most recent schedule of values submitted by the Contractor in accordance with the Contract Documents. The schedule of values shall allocate Elie entire Contract Sum among the various portions of the Work. The schedule of values shall be prepared in such form and supported by such data to substantiale its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment. § 5,1.5 Applications for payment shall indicate the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. § 5.1.6 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: ,1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Wort; by the share of the Contract Sum allocated to that portion of the Work in the schedule of values, less retainage of five percent ( 5% ). Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section 7.3,8 of AIA Document A201-1997; 2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage of rive percent ( 5% ); ,3 Subtract the aggregate of previous payments made by the Owner, and .4 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 95 of AIA Document A201-1997. § 5,13 The progress payment amount determined in accordance with Section 5. I.6 shalt be further modified under the following circumstances: Init. AIA Document A101 n - 7997. Copyright ®1915, 1910, 1925 1937, 1957, t se, o1951, lecl 1963, 1 74.1977.1991 American This Institute - . Copyright Law 19B7. nte and 1997 by The reproduction ore st bu rights reserved. ocument, r an AIAr Document Is protected by U. S. Copyright Law and Inlernaltonnl Treatie ss. . Unauthorized raprjule of on or diia. Al trig is this AIA Document, a ony portion of Il, may result In severe elvll and criminal penalties, and will be prosecuted to the 3 / maximum extent possible under the law. This document was producod by AIA software al 13:49:19 an 01/1112008 under order No. 1000209592_7 which expires on 3/23/2008, and is not tar resale. User Notes: (1157310408) ,7 Add, upon Substantial Completion of the Work, a sum sufficient to increase the total payments to the full amount of the Contract Sum, less such amounts as the Architect shall determine for incomplete Work, retainage applicable to such work and unsettled claims; and (Section 9.8.5 of AIA Document A201-1997 requires release of applicable retainage upon Substantial Completion of Work with consent of surety, if any.) .2 Add, if final completion of the Work is thereafter materially delayed through no fault of the Contractor, any additional amounts payable in accordance will) Section 9.10.3 of AIA Document A201-1997. § 5.1.8 Reduction or limitation of retainage, ifany, shall be as follows: (!fit is intended, prior ro Substantial Completion of rile attire Work, to reduce or limit the rewhiage resulting from the percentages inserted in Seclions 5.1.6.1 and 5.1.6.2 above, and this is not explained elsewhere it, the Contract Docrunents, insert here provisions forsuch rerhiction or linlitatlon.) Retainage of five percent (5010) shall be held by Owner until the Use and Occupancy Perinit is issued, at which time the retainage shall be reduced to one hundred fifty percent (150e o) of cost for any outstanding items, § 5.1,9 Except with Elie Owner's prior approval, the Contractor shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. § 52 FINAL PAYMENT § 5,2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when: ,1 the Contractor has fully performed the Contract except for the Contractor's responsibility to correct Work as provided in Section 12.2,2 of AIA Docullient A201-1997, and to satisfy other requirements, if any, which extend beyond final payment; and ,2 a final Certificate for Payment has been issued by the Architect. § 5.2,2 The Owner's final payment to the Contractor shall be made no later than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows: ARTICLE 6 TERMINATION OR SUSPENSION § 6,1 The Contract may be terminated by the Owner or the Contractor as provided in Article 14 of AIA Document A201-1997. § 6.2 Tile Work may be suspended by the Owner as provided in Article 14 of AIA Document A201-1997. ARTICLE 7 MISCELLANEOUS PROVISIONS § 7.1 Where reference is made in this Agreement to a provision of AIA Document A201-1997 or another Contract Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. § 7.2 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated below, or in the absence thereof, at the legal rate prevailing from time to time at the pine where the Project is located. (Insert rate of interest agreed upon, if any. ) 08"0 ) per annum (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local constuner credit laws and other regulations a1 the Olvner's and Contractor's principal places of business, the location of the project and Intl AIA Document AtOtn+_ 1897, Copyright 113 1915, 1918, 1925, 1937 5 , 191, 1959, 1961, 1953, 1967, 1974, 1977, 1997 1991 and 19976y The American Irtstilule of Architects. All rights reserved. WARNING: This AIA° pocumcni Is protected by U.S. Copyrlghl Low and International Treaties. Unauthorized reproduction or distribution of this AIA° Document cr any pardon of It, may result In severe civil and criminal penalties, and will be prosecuted to fire t maximum extent passible under the law. This document was produced by AIA software at 13:49:19 on 01/1112009 under Drder No.10o0299592 t which explres on 312312008, and is not for resale. User Notes: _ (1157310406) elsewhere may affect the validity of III is provision. LessI advice should be obtained tvitlt resp eel I a deletions or modifications, and also regordins requirements such as written disclosures or lvaivets.) § 7.3 The Owner's representative is: (None, address and other hforntation) Mr. Don Irwin 1943 Monterey Drive Mechanicsburg, PA 17050 § 7.4 The Contractor's representad ve is: (Name, address and otlrer it for7nation) Mr. David L. Donharl. Conewago Enterprises, Inc. 660 Edgegrove Road P. 0. Box 407 Hanover, PA 17331 § 7.5 Neither the Owner's nor the Contractor's representative shall be changed without ten days written notice to the other party, § 7,6 Other provisions: ARTICLE 8 ENUMERATION OF CONTRACT DOCUMENTS § 8.1 The Contract Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows: § 6.1.1 The Agreement is this executed 1997 edition of the Standard Form of Agreement Between Owner and Contractor, AIA Document A101-1997. § 8.1.2 The General Conditions are (lie 1997 edition of the General Conditions of the Contract for Construction, AIA Document A201-1997. § 8.1.3 The Supplementary and other Conditions of the Contract are those contained in the Project Manual dated and are as follows Document Title NA Pages § 8,1,4 The Specifications are those contained in the Project Manual dated as in Section B. 1.3, and are as follows: (Either list file Specifications here or rzjer to an e_dtibit nnadted to this Agreement.) Title of Specifications exhibit: (Table deleted) § 8.1.5 The Dmwings are as follows, and are dated unless a different date is shown below: (Either list the Drawings here or refer to an exhibit allached to this Agreement.) Title of Drawings exhibit: See attached (Table deleted) § 8,1,6 The Addenda, if any, are as follows: Init. AM Document Ards. All 1997. Copyright WARNI G. 1925, 1937, 1951, 1956, 1961, 1983, 1967, 1974, 1977, 1987, 1991 and 1997 by The Amerlean reprodu institute of Arehllecls. A11 rights reserved. WgRNiNG: This s AIA° Dacumsnt is protected by U.S. Copyright Low and ernallonal 7 The . OrIca orized ction or dlsfribullon of this AtA ° Document, or any Portion Of It, may / maximum extent possible under tho low. This tloeument was produced by ALA soflwalren exPrOs On 31231 ax m 908, and is not for reaow User Notes: at 13 49ci ton 01dtcriminal 2 ODS urderllOrdeand Oo 2Q9592 Su fad tto the 0 IS73104o6) Number Date NA Pages Portions of Addenda relating to bidding requirements are not part of the Contract Documents bidding requirements are also enumenlted in this Article 8. unless the § 8.1.7 Other documents, if any, forming part of the Contract Documents are as follows: (List /sere any additional docuurenrs dint are intended to foml parr of the Contract Documents. AIA Documeru A201- 1997provides that bidding requirements Stich as advertisement or inviiaiion to bld, Instntctions la Bidders, sample johns and the Contractor's bid are not part of the Contract Dacrwt nt uulesr enumerated in this Agreement. They should be listed here only if intended to be port oJAre Contract Dacuuttents.) Conewago Enterprises, Inc, proposal dated November 28, 2007 § 8.2 Davis-Bacon Wages - Owner acknowledges that the Contract Sum is based on Own.Cris representation that the Work is not subject to any statute, ordinance, regulation or determination requiring payment for labor for the Work in accordance with the federal Davis-Bacon Act, any state prevailing wage tale, or any similar requirement, and that this is material to Contractor's agreement to perform the work for the Contract Sum, Owner agrees that in the event it is determined by any regulatory agency, governmental board or court that the Work is subject to any prevailing wage or similar requirement, Owner will adjust tite Contract Sum to pay Contractor for any increase in Contractor's cost as a result of such determination. § 8.3 Mold Clause - Should the Owner fail to properly maintain the building and permit a hazardous condition such as mold to develop after construction, the Owner will indemnify the Contractor for any and all claims resulting from this condition including bodily injury, physical damage, remedintion, and loss of use. This Agreement is entered into as of the day and year first written above and is executed in at least three original copies, of which one is to be delivered to the Contractor, one 10 the Architect for use in the administration of the Contract, and the remainder to the Owner. NER (Si a CON Don Irwin tgnahtre) I Date: ?_ ?g_ a ra David L. Donh rl, Vi a President (rrtnted name lntd title/ Dale: y7e? b? b4? m,5 - (Printed Haute n ul rifle Intl. AIA Document A101 TM _ 1997. Copyright 01915, 1910, 1925, 1937, 1951, 0 protected by U.S. Copyright ht O1w967, and into nte andrnallon N :' 1997 re The. Unauthorized American an 195y Institute of Architects. All rights reserved. WARNING: TltlsYAIA°poDocument is proeelad by S. La by T e reproduction or distribution of tills AIq° Document, or of 11,mn r clvtl1974antl criminal Parini fez, and will be prosceufed to the anion esult, In19se maximum extent possible under the taw. This document was produced by AIA software al 13:49:19 on 0 1 /1 11200 8 under Order Na.1000289592_l which ti expires 312312000, and Is not for resale. User Notes: (1157310408) DEC-22-200841102 - INEWRGD ,576 E4SLVrpv0 gGap, pp Bau 461, Na nctrct, PA i 793 T www'Conewago'com Msy 16, 2008 tnstie Develop»-ent 1943 Monterey o, Mechenlcsburg PA 17050 Aoi: C-O"on guiles Dear Don: 7176306441 P.01/01 '?i'lb•1?g41 P, BI X01 in the come are reque8iirpg a change order in the amount Of $12.62e.op for we additionet tube columns cantr?d eo m ay aPlease sign below to accept this c ?ge and Forward a chan9e order to the original iFYO'J have any questions or concsms Pteaat: Co m hesitate to contact me. Sincerely, CONEW, INC ,tonn Hagarm n 5--116 --a-5 Dale: conewago, Ready 2 Phone; o'W., i 17-633-5022 Cnne*rago Pwaln Building systems Fax: 7/7.630.8x01 rhanr¢ 717L632.1jZZ Canew23o Seel Sysren,s Coneyyrgo Condttes Far,; 717.636-64+91 Ppwne, 717432-7722 moires Fast 717-632.8659 Phone-" 717-632-77,1.1 Flag.' 717.632-8659 TQ1'RL P. 01 TnTAl P. R i A"ONEWAGO Edgegrove Road, PO. 8ox 461, Hanover, PA 17331 www.conewago.com Insite Development 1943 Monterey Dr Mechanicsburg PA 170,50 Attn: Don Erwin Re[: Comfort Suites Dear Don: rj1D C E o J U L 7 2008 `nNl l\'AGCI BUILDR4GSYSTEMS, LLC June 27, 2008 We are requesting a change order to the original contract in the amount of $153,957.00 for the addition of 17,579 SF of roof plank. Please sign below acknowledging your agreement to this change. If you have any questions please feel free to contact me. Sincerely, CONEWAGO ENTERPRISES INC David L. Donharl ud+e Conewago Ready Mix Conewago Precast Building Systems Conewago Steel Systems Conewago Concrete Services Phone: 7 i 7-633-5022 Phone: 717-632-7722 Fax: 717-630-8441 Phone: 717-632-7722 Phone: 717.632-7722 Fax: 717-630-8441 Fax: 717-632-8659 Fax: 717-632-8659 RUG-11-2008 - 12:56 FRDM:RBECO INC "' -- --- -- 217 458 8362 August t 1.2008 ir?She DeveloprneM 1943 Monterey Dr Mechanlceburg PA 17050 Attn: Don Erwin Ref; Comfort States Dear Dart: TD:6309441_ P:1_ J We ere "LlBating a change Wder to the original c:Dntm t in the amDurg of $3,824,t? for ft addiSon of 2M Sl= of R° plank at Stair trn?r5 &S, and C,_ Pl sign (dour Contact rvi me. t?clgin9 Y agreement to the change ease aortta If your have any q eSgon9 please feet free to Sincerely, C ONEWAGO ENTERPRI INC Dan 5nearinger Authorized Ga+'l-ago Reamr Mix PhOOO. 7 r 7-633-5022 FaC 717.63"04 T d ~ ? l? Data CGnewagp Precast B?ding Systems tanewago 5th! Systems Phane- ? 7722 Phone: 717.632.7772 imago C?? 5erviRs Paz 717-63"4,41 F2x: 717.632.8659 F Pax: : 717.632-7722 Fax: 717-63Z-8659 Aug 23 08 09:11a Don Envin AUS-22-2006 36=20 J S76 Edgegrave Road, P.D. Bar 461, wvwv conevvvgo.a PA 77331 .7-236-5570 i i =.3rjo-. 4 t August 22, 2008 lnsite Development IW Monterey Dr Mechanicsburg PA 7' Attu Don Erwin Ref; Comfort Dear Don; We are real $10,251.00 for the ac 4. Please sign belt questions please fee! hn9 a change order to the original contract in the amount of on of 570 SF of 8" Plank to stair tower A, S, and C at noors 2, 3, and arknDWledging your agreement to this change. If you have any e to contact me. Sincerely. CONEWAGO ENTERPRISES INC Don Sneeringer P.1 r. Gir wi eonewago Rratty mix C rlewago precast Building Systems Conewago Steel Systems Conewago Concrete Services phone: 717-633-SD22 Phone: 777-632-7722 Phone: 717-631.7712 Fax: 717-630-84141 FRX: 71 7.6,30-8441 Phunt-: 7 t 7-632-7722 Fax. 717.632-8659 Fax: 717-632-9654 TOTAL P.0] i 576 Edgegrove Road, PO. Box 461, Hanover, PA 17337 wti"'w.conewago,corn November 28, 2007 Insite Development 1943 Monterey Or Mechanicsburg PA 17050 Attn: Don Erwin Ref: Comfort Suites Dear Don: L-' 'L k_' '?' i ? q1C? After reviewing the latest set of preliminary structural drawings dated Nov. 7, 2007 we have budget numbers for the structural steel and plank package. These estimates may need to be adjusted based upon receipt of a final set of construction drawings, however I feel this estimate should be very close. 0 8" Hollowcore precast floor plank, appox. 69,943 SF $598,159 Structural steel package to consist of all columns, beams, and lintel angles Y Load bearing structural steel stud wall system and shear walls $487,302 $563,200 Non load bearing structural steel stud exterior wall system with Dens Glass Gold sheathing on all exterior walls, load bearing and non load bearing $209,000 The above prices are furnished, delivered, and erected. Sincerely CONEWAGO ENTERPRISES INC L :!!tnharl Conewago Ready Mix Conewago Precast Building Systems Conewago Steel Systems Conewago Concrete Services Phone: 717- 633-5022 Phone: 777-632-7722 Fax: 630-8441 Phone: 717-632-7722 Phone: 777-632-7722 717- Fax: 717-630.8441 Fax: 717-632-8659 Fax; 717-632-8659 wr.ww. ..?-. .r.r. •w.. ,...w ..w r.r.r ?. wv?.,t' %a.-s/I 1f &Jt ii-vw f.VV If VV.} R-G9ERT P. ZIEGLER C 7REE4RDEP. OF DEED;' WMR12 RF1 8`t2 THIS DEED Tax Parcel Nos. 10-14-08BM23 Made the q ?- day of March, in the year of our Lord two thousand seven (2007) Between NIT. ZION ASSOCIATES L.P., a Pennsylvania limited partnership, party of the first part ("Grantor") AND INSITE DEVELOPMENT, LLC, a Pennsylvania limited liability company, party of the second part ("Grantee") WITNESSEN that the said Grantor, for and in consideration of the sum of Eight Hundred Forty Thousand and 001100 ($840,000.00) Dollars lawful money of the United States unto Grantor well and truly paid by the Grantee, the receipt of which is hereby acknowledged, does hereby grant, bargain, sell, alien, enfeoff, release, convey and confirm unto the said Grantee, Grantee's successors and assigns, LOT 5: ALL THAT CERTAIN tract of land situate in the Township of Hampden, Cumberland County, Pennsylvania known as Lot 5 on the Final ReSubdivision Plans Phase 2A and 213 for Cumberland Technology Park recorded in Plan Book 81 page 53 and bounded and described as follows: BEGINNING at an iron pin, said point being the southeastern corner of the intersection of Mt. Zion Road, having a 50 foot1egal right-of-way and Technology Parkway, having a 80 foot legal right-of=way; thence along the southem right-of-way line of Mt. Zion Road South 79 degrees 33 minutes 17 seconds East a distance of 180.68 feet to a point on said southern right-of-way line of Mt. Zion Road; thence leaving said right-of-way line and along the property now or formerly Russel C. Meek & Anna,E. Meek South 14 degrees 40 minutes 43 seconds West a distance of 152.88 feet to a point; thence continuing along the property now or formerly Russel C. Meek & Anna E. Meek South 79 degrees 33 minutes 17 seconds East a distance of 99.79 feet to a point on the line of property now or formerly Larry S. Myers and Audrey M. Myers; thence along said property now or formerly Larry S. Myers and Audrey M. Myers South 26 degrees 08 minutes 36 seconds West a distance of 272.25 feet to an iron pin, said point being the common corner of now or formerly Larry S. Myers and Audrey M. Myers, now or formerly Pinnacle Health Hospitals and the tract of land herein described; thence along said now or formerly Pinnacle Health Hospitals South 82 degrees 20 minutes 41 seconds West a distance bf 157.13 feet to an iron pin on the eastern right- SL1 707568v UDDDDDD.DDDOD btio? 279 39B ..._.. ..-_•_•? ?. ..fie .I vVI ?-. "II.. ' f .VV6lV VY of-way line of Technology Parkway; thence along said eastern right-of-way line of Technology Parkway along a curve to the right having a radius of 455 feet and a length of 302.72 feet to an iron pin on the eastern right-of-way line of Technology Parkway; thence continuing along the eastern right-of-way line of Technology Parkway North 10 degrees 27 minutes 53 seconds East, a distance of 205.62 feet to an iron pin on the eastern right-of-way line of Technology Parkway; thence continuing along the eastern right-of-way line of Technology Parkway along a curve to the right having a radius of 25.00feet and a length of 39.26 feet to an iron pin on the eastern right-of-way line of Technology Parkway, said point being the juncture of Technology Parkway and Mt. Zion Road, said also being the place of BEGINNING. CONTAINING 104,584.05 square feet (2.401 acres), more or less. EXCEPTING AND RESERVING a 20 foot wide trait easement and a detention basin easement more particularly bounded and described on Final Resubdivision Plans, Phase 2A & 28 for Cumberland Technology Park, recorded in Cumberland County Plan Book 81 Page 53. BEING A portion of property which McNaughton Properties, Inc., a Pennsylvania corporation, by deed dated November 4, 1997 and recorded November 5, 1997 in Cumberland County Deed Book 167, Page 327, granted and conveyed unto Mt. Zion Associates L.P., a Pennsylvania Limited Partnership. Being Tax Parcel 10-14-0839-023 UNDER AND SUBJECT to all restrictions, reservations, easements, covenants, conditions and rights-of-way of record. TOGETHER with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining and the reversions and remainders, rents, issues and profits thereof and all the estate, right, title,' interest, property, claim and demand whatsoever of the Grantor, in law, equity or otherwise, of, in and to the same and every part thereof. TO HAVE AND TO HOLD the above-described premises with the appurtenances unto the Grantee, Grantee's successors and assigns, forever. AND the said Grantor hereby covenants and agrees that it will warrant specially the property hereby conveyed. 5L! 707568v1/DDD0 Q.D=0 r-t 906 4 79 PAGE 397 In Witness Whereof, the Grantor has hereunto set its hand and seal the day and year first above written. ATTEST: - Z? J?? (Asst.) Secretary Mt. Zion Associates, L.P. by its sole General Partner, Mt. Zion Associates, Inc. By: Phi Markovitz Vice President Commonwee IF Pennsytvenie SS.. County of On this, the q4 day of March, 2007, before me, a Notary Public, the undersigned officer, personally appeared Philip Markov'rtz, Vice President of Mt. Zion Associates, Inc., a Pennsylvania corporation, the sole general partner of Mt. Zion Associates L.P., a Pennsylvania limited partnership, known to me (or satisfacto proven) to be the person whose name is subscribed to the within deed and acknowledged that he as such officer executed the same for the purp contained on behalf of the corporation, as general partner of the limited In IMtness Whereof I hereunto set myXanV and gffcial seal. NOTARIAL SEAL DEBORAH N. KOONS, Notary Pub0c Swatara Tvrp„ Dauytrn Caur Cortcnisalon Jme 3,2 DDI I Hereby Certify that the precise residence of the Grantee is: 1943 Monterey Drive. Mechanicsburg, PA 17050 SLf 70756MIDDODOD.00000 No fary Pu is ` My G fission Expires: Attorney for Grantee eoami 279 PACE 398 ... __ - 0210612009 15.26 Patricia 6la lbstracting r,vv4ruv? Commonwealth of PannSylv.811ia Coranty of Cumberland SS Recorded on this County Recorder of D day of eeds Office in Record/Deed g , 2006, in the Cumberland O°k Volume Page Given under my hand and the seal of the said Office the date above written. Cumberland County Recorder of Deeds S:1Lega'DeedslCumberiandTech-DeedtolnsiteDev.wpd 319/07 72:58 PM t Certify this to be recorded In Cumberland County pq ( o, ry I+M Recorder of Deeds Pspr*',o:'d nta n R P nrd*i 2 y v'i+??? n, T ??4 V re na xe Ra r~r b ?r+? ' ' O ro•COO ?ay x?SO ?.y .S`i d ~ = C LrT --•i 0 S L 17D 7568 v 1 /DDDODD. D00 W 6669 279 Pace: 39,9 0 W N cn E F.r. ?i c. m m ? w r,a m mO ?Q ?Hti o?o?? r_. f.r 0 4 a v !a ? G \ f? r? r a ? V .a a v C A is ti ? O 1 = ? ?p ti. rn w a FZ1, rp U 0 -07 2x09 JAIL w t y 6.b C.l,* ggS7(43 qx* oull to 1 l Sheriffs Office of Cumberland County R Thomas Kline Sheriff Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor ?4aat3, of?urnt?rrh>?d F E')F 71P c-FRIFF - _ r,- py 20119 AIL I k E; •? J 7 i Conewago Enterprises, Inc. vs. Case Number Insite Developement, LLC 2009-4476 SHERIFF'S RETURN OF SERVICE 07/13/2009 12:20 PM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on July 13, 2009 at 1220 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Insite Development, LLC, by making known unto Donald Erwin, President of Insite Development, LLC at 1 Courthouse Square, Room 303 Carlisle, Cumberland County, Pennsylvania 1701 its contents and at the same time handing to him personally the said true and correct copy of the same. 07/13/2009 12:20 PM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on July 13, 2009 at 1220 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Insite Development, LLC, by making known unto Donald Erwin, President of Insite Development, LLC at 1 Courthouse Square, Room 303 Carlisle, Cumberland County, Pennsylvania 17012 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $44.44 SO ANSWERS, July 13, 2009 R THOMAS KLINE, SHERIFF Aeputy->heriff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA CONEWAGO ENTERPRISES, INC. Civil Action - Law Plaintiff V. No. 09-4476 Civil Term INSITE DEVELOPMENT, LLC. And INSITE HOSPITALITY, LLC Defendant NOTICE TO PLEAD TO: Conewago Enterprises, Inc. c/o Michael W. Winfield, Esquire Rhoads & Sinon One South Market Square Harrisburg, PA 17108 You are hereby notified to file a written response to the enclosed Answer and New Matter to Plaintiff's Complaint within twenty (20) days from service hereof or a judgment may be entered against you. POST & SCHELL, P.C. BY: Thomas L. Isenberg, Jr.-, Esquire Attorney I.D. No. 76652 Post & Schell, P.C. 17 North Second Street, 12t1i Fl. Harrisburg, PA 17101 Telephone: 717-612-6035 Facsimile: 717-731-1985 E-mail: tisenberg6Dpostschell.com Date: Attorneys for Defendants 6522827v1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA CONEWAGO ENTERPRISES, INC. Civil Action - Law Plaintiff V. No. 09-4476 Civil Term INSITE DEVELOPMENT, LLC. And INSITE HOSPITALITY, LLC Defendant INSITE DEVELOPMENT, LLC'S ANSWER WITH NEW MATTER TO COMPLAINT FOR JUDGMENT UPON THE MECHANICS' LIEN CLAIM Defendants Insite Development, LLC and Insite Hospitality, LLC, by and through their counsel, Post & Schell, P.C., respectfully file this Answer with New Matter to Plaintiff, Conewago Enterprises, Inc.'s Complaint and, in support thereof states the following: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. Admitted in part and denied in part. It is admitted only that a Mechanics' Lien Claim, a copy of which is attached to Plaintiffs Complaint, was filed, served and docketed to No. 2009-1899 MLD. Defendants specifically deny any liability or obligation to make payment in the amount of $98,587.72 as set forth in the Mechanics' Lien Claim and the within Complaint. 5. Denied. The allegations contained within paragraph 5 of Plaintiffs Complaint relate to or reference a document, the terms, conditions of which speak for itself. By way of further answer, the allegations contained within paragraph 5 of Plaintiffs Complaint are legal conclusions to which no responsive pleading is required. To the extent that a response is deemed necessary, Defendants specifically denies the same. 6. Admitted. 7. Denied. The allegations contained within paragraph 7 of Plaintiff's Complaint relate to or reference a document, the terms, conditions and contents of which speak for itself. 8. Denied. The allegations contained within paragraph 8 of Plaintiffs Complaint contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendants specifically deny the same. By way of further answer, it is admitted only that Plaintiff supplied labor and materials which were incorporated into the construction of the Project. It is further denied that Plaintiff has not been paid in accordance with the contract. 9. Denied. It is admitted only that Plaintiff has claimed $98,587.72 as due and owing. Defendants specifically deny any liability or obligation to make said payment in the amount of $98,587.72. 10. Denied. The allegations contained in paragraph 10 of Plaintiff s Complaint contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendants specifically deny the same. WHEREFORE, Insite Development, LLC and Insite Hospitality, LLC respectfully request this Honorable Court to enter judgment in their favor and against that of Plaintiff, Conewago Enterprises, Inc. NEW MATTER 11. Paragraphs 1 through 10 above are incorporated herein by reference as if set forth in full. 2 12. Plaintiff's claims are barred, in whole or in part, by the doctrines of laches, waiver, and estoppel. 13. Plaintiffs claims are barred, in whole or in part, by the doctrines of accord and satisfaction. 14. Plaintiffs claims are barred, in whole or in part, by the doctrine of novation. 15. Plaintiffs claims are barred, in whole or in part, by the doctrine of payment. 16. Plaintiff has failed to set forth a claim upon which relief can be granted. 17. Plaintiffs claims are barred inasmuch as Plaintiff has failed to strictly comply with the Pennsylvania Mechanics' Lien Law. 18. Plaintiffs claims are barred as result of Plaintiffs failure to abide by the dispute resolution provision of the contract entered into by and between the parties. 19. Plaintiff s claims are barred pursuant to the applicable statute of limitations. 20. Change orders submitted by Plaintiff were not properly approved and submitted in accordance with the contract entered into by and between the parties and as such, Plaintiff is not entitled to payment for the same. 21. Work performed by the Plaintiff was not performed in workman-like manner. 22. Work for which Plaintiff seeks payment was within its original scope of work, the same of which has been paid. 23. Plaintiff billed Defendants for work for which it is not entitled to payment. WHEREFORE, Insite Development, LLC and Insite Hospitality, LLC respectfully request this Honorable Court to enter judgment in their favor and against that of the Plaintiff, Conewago Enterprises, Inc. 3 POST & SCHELL, P.C. Date: / BY: Th as L. Isenberg, J ., Esq ' e Attorney I.D. No. 7665 Post & Schell, P.C. 17 North Second Street, 12`" Fl. Harrisburg, PA 17101 Telephone: 717-612-6035 Facsimile: 717-731-1985 E-mail: tisenbergapostschell.com Attorneys for Defendants 4 VERIFICATION I, 21 fo! do hereby verify that I am the 4t:r= ,I? of Insite Development, LLC/Insite Hospitality, LLC and have been authorized to execute this Verification on its behalf. I hereby verify that the foregoing is true and correct to the best of my knowledge, information, and belief. This Verification is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. INSITE DEVELOPMENT, LLC/ INSITE HOSPITALITY, LLC DATE: 'X I 141 1 CERTIFICATE OF SERVICE I, Thomas L. Isenberg, Jr., Esquire, of Post & Schell, P.C., do hereby certify that I caused to be served a true and correct copy of the foregoing Answer with New Matter to Complaint for Judgment Upon the Mechanics' Lien Claim to be served on the following parties/counsel of record by U.S. Mail, First-Class, postage prepaid, as follows: Conewago Enterprises, Inc. c/o Michael W. Winfield, Esquire Rhoads & Sinon One South Market Square Harrisburg, PA 17108 Counsel for Plaintiff POST & SCHELL, P.C. Date: BY: Thomas L. Is erg, r., Esq re 1 RLE"BCE TTHEPROTHONOTARY 2H9 AUG 14 PM 3,. 08 0AWRIAND COUNTY FDImyw Michael W. Winfield, Esquire Attorney I.D. No. 72680 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 E-Mail: mwinfield@rhoads-sinon.com Attorneys for Plaintiff CONEWAGO ENTERPRISES, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. INSITE DEVELOPMENT, LLC, and INSITE HOSPITALITY, LLC, Defendants CIVIL ACTION - LAW NO. 09-4476 Civil Term CONEWAGO ENTERPRISES. INC.'S ANSWER TO NEW MATTER NOW COMES Plaintiff, Conewago Enterprises, Inc., by its attorneys, Rhoads & Sinon LLP, and files the within Answer to the New Matter asserted by Defendants Insite Development, LLC and Insite Hospitality LLC, as follows: 11. This paragraph contains no allegations or averments which require a response. 12. The averments of this paragraph are conclusions of law which require no response. To the extent a response is required, the averments are strictly denied. 13. The averments of this paragraph are conclusions of law which require no response. To the extent a response is required, the averments are strictly denied. 14. The averments of this paragraph are conclusions of law which require no response. To the extent a response is required, the averments are strictly denied. 15. The averments of this paragraph are conclusions of law which require no response. To the extent a response is required, the averments are strictly denied. 16. The averments of this paragraph are conclusions of law which require no response. To the extent a response is required, the averments are strictly denied. 17. The averments of this paragraph are conclusions of law which require no response. To the extent a response is required, the averments are strictly denied. 18. The averments of this paragraph are conclusions of law which require no response. To the extent a response is required, the averments are strictly denied. 19. The averments of this paragraph are conclusions of law which require no response. To the extent a response is required, the averments are strictly denied. 20. The averments of this paragraph are conclusions of law which require no response. To the extent a response is required, the averments are strictly denied. 21. The averments of this paragraph are conclusions of law which require no response. To the extent a response is required, the averments are strictly denied. 22. The averments of this paragraph are conclusions of law which require no response. To the extent a response is required, the averments are strictly denied. 23. The averments of this paragraph are conclusions of law which require no response. To the extent a response is required, the averments are strictly denied. -2- WHEREFORE, Plaintiff Conewago Enterprises, Inc. demands judgment against the Defendants in the sum of $98,587.72, along with interest, costs, and such other relief as this Court deems appropriate. RHOADS & By: Michael W. Winfield One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff -3- VERIFICATION David L. Donharl, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsification to authorities, that he is the Vice President of Operations of Conewago Enterprises, Inc., that he makes this verification by its authority and that the facts set forth in the Answer to New Matter are true and correct to the best of his knowledge, information and belief. Date 752049.1 CERTIFICATE OF SERVICE I hereby certify that on August 24, 2009, a true and correct copy of the foregoing Answer to New Matter was served by means of United States mail, first class, postage prepaid, upon the following: Thomas L. Isenberg, Jr., Esquire Post & Schell, P.C. 17 North Second Street, 12`h Floor Harrisburg, PA 17101-1601 Lynne G. er 2 0 0 9 A U G 25 PM 12: 21, ,~ . CONEWAGO ENTERPRISES, INC., PLAINTIFF V. INSITE DEVELOPMENT, LLC, and INSITE HOSPITALITY, LLC, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 09-4476 CIVIL TERM ORDER OF COURT AND NOW, this ~'~ day of June, 2010, it appearing that defendant, Insite Development, LLC, has filed for Chapter 11 Bankruptcy, plaintiff's motion to compel pursuant to Pa.R.Civ.P. 4019 is, therefore, automatically stayed. Counsel is directed to notify the court if and when the stay is lifted and the matter is at issue. By the Court, Albert H. Masland, J. /Michael W. Winfield, Esquire For Plaintiff ~ Kelly M. Knight, Esquire n For Defendants .~, ~ ~' ~± ~J ~ .w_: ~..._ . :.~ ~; d ~ J9, l~~ ~:: o ~ ~ ~ `; ~ - ~ -~, -21L G ~-- ~~ .. _, ;-~, ~} •-~ ,~ . G 38 4809 CONEWAGO ENTERPRISES, INC., Plaintiff v. INSITE DEVELOPMENT, LLC and INSITE HOSPITALITY, LLC, 01:36:14p.m. 06-03-2010 2l3- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CML ACTION -LAW NO: 09-4476 Defendants NOTICE OF STAY NOTICE IS HEREBY GIVEN that Incite Development, LLC, above-named Defendant has filed a Petition under Chapter 1 I of the United States Bankruptcy Code to case number 1-10- 04600 in the Bankruptcy Court for the Middle District of Pennsylvania. As a result thereof, the above-captioned action is stayed in regards to Defendant, Incite Development, LLC, until further Order of the United States Bankruptcy Court. Undersigned executes this Notice for purposes of giving notice only; and the providing of this Notice is not intended to enter an appearance in the within case. submitted, Date: dune 3, 2010 By: Suprflne Court QD No/13380 Kelly M. Knight, Esquire Supreme Court ID No. 87365 2320 North Second Street Harrisburg, PA 17110 Telephone: (717} 238-6570 Attorneys for Defendant 17'238 4809 01:36:24 p.m. 06-03-2010 3/3- CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant, with the law firm of Cunningham & Chernicoff, P.C., hereby certify that a true and correct copy of the NOTICE OF STAY was served via electronic mail and/or first class mail to: Michael W. Winfield, Esquire Rhoads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 CUNNINGHAM & CHERNIC4FF, P.C. sy: Julieanne Ametrano 2320 North Second Street Harrisburg, PA 17110 Date: June 3, 2010 F:WaneUCKMGH'IIDOCS~E~win.DonaldlConewaQo FaterpaiseWatia of Shy.wpd of �(M (David lD. Buell e 1 cnee R Simpson Prothonotary , 5, 1S` Deputy Prothonotary O N,i 4�rG.,z f z �irkS. Sofionage, ESQ r-f Irene E. Morrow Solicitor 1,50 2nd Deputy Prothonotary Office of the Prothonotary Cumberland County, Pennsylvania 69- alp/No CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 291H DAY OF OCTOBER, 2013,AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE-THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 • Carlisle, PA 17013 • (717)240-6195 • cFax(717)240-6573