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HomeMy WebLinkAbout09-6062Anthony W. Parker, Esquire PA ID 81251 Kelly, Parker & Cohen LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717- 920-2220 FAX 717-920-2370 aparker(a kpc-law.com CAPITAL EXCAVATORS, INC., 681 Knight Road Harrisburg, PA 17111 Plaintiff V. VARISH CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. OQ - ?0(Da ?Vi (?Gt'M+ : Civil Action - Law 800 Bullfrog Road Gettysburg, PA 17325 Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 800-990-9108 Background: 4. On or about September 12, 2005, Varish approached Capital Excavators and re uested it furnish material and labor on the construction of a Best Western Hotel located on q Limekiln Pike in Cumberland County, Pennsylvania. All work was to be performed on a time and material basis. 5. On or about September 14, 2005, Capital Excavators prepared and submitted a Proposal and Agreement detailing the scope and terms of work Capital Excavators was to perform for Varish (the "Best Western Contract"). Varish verbally accepted the Contract and Capital Excavators commenced work on or about September 14, 2005. A true and correct copy of the Best Western Contract is attached hereto as Exhibit A and incorporated herein by reference. 6. On or about October 31, 2005, Terry Helwig, Superintendent for Varish, signed the Best Western Contract on behalf of Varish. See Exhibit A. 7. Between September 2005 and May 2006, Capital Excavators supplied Varish with substantial quantities of material and labor under the Best Western Contract for which a balance of Seven Thousand One Hundred Twenty Dollars and Eighteen Cents ($7,120.18) remains unpaid. True and correct copies of Capital Excavators' Invoices are attached hereto as Exhibit B. 8. On or about May 15, 2006, Terry Helwig, Superintendent of Varish, requested Capital Excavators perform demolition work of and back fill a pool at the Rodeway Inn, Fairview Township ("Rodeway Inn Contract"). All work was to be completed on a time and material basis. A balance of Five Thousand Three Hundred Ten Dollars ($5,310) remains unpaid. True and correct copies of the work order and invoice are attached hereto as Exhibit C. 2 9. All material and services supplied by Capital Excavators pursuant to the Best Western and Rodeway Inn Contracts were provided in a good and workmanlike manner and in full compliance with all applicable requirements. s received to date, Vanish owes the principal . Taking into consideration all payment 10 sum of Twelve Thousand Four Hundred Thirty Dollars and Eighteen Cents ($12,430.18) for material and services supplied under the Best Western and Rodeway Inn Contracts, exclusive of accrued interest, penalties, attorney's fees, and costs due under the Contractor and Subcontractor Payment Act. 11. Although demands have been made, Varish has failed and refused to make payments on the balance due Capital Excavators. 12. All conditions precedent to Capital Excavators' right to payment from Varish have occurred or been otherwise satisfied and, therefore, Capital Excavators has demanded that the Defendant pay the principal balance due for the material and services supplied, together with interest and costs as required and as set forth above and below. 13. The monies due and owing to Capital Excavators are wrongfully withheld by Varish. COUNTI Breach of Contract 14. Capital Excavators hereby incorporates by reference the allegations contained in Paragraphs 1 through 13 above as if set forth herein at length. 15. Varish materially breached the Best Western and Rodeway Inn Contracts by failing and refusing to pay Capital Excavators the balance due for the materials and labor supplied by failing and refusing to pay such sum in a timely manner, and by otherwise failing refusin to comply with the terms of the Contracts. By its actions, Varish caused Capital and g Excavators damages in the amount of Twelve Thousand Four Hundred Thirty Dollars and Ei hteen Cents ($12,430.18), exclusive of accrued interest, penalties, attorney's fees, and costs. g 16. Pursuant to Section 512 of the Contractor and Subcontractor Payment Act, 73 P.S. Capital Excavators is entitled to recover a penalty of 1% ($124.30) per month and § 501, et seq, interest of 1% ($124.30) per month for all payments wrongfully withheld. 17. Pursuant to Section 512(b) of the Contractor and Subcontractor Payment Act, 73 P.S. § 501, et seq., Capital Excavators is entitled to reasonable attorney's fees and expenses. WHEREFORE, Plaintiff Capital Excavators, Inc., respectfully requests this Honorable Court enter judgment in its favor and against Defendant Varish Construction, Inc., in the amount of Twelve Thousand Four Hundred Thirty Dollars and Eighteen Cents ($12,430.18), plus 1% $124.30) interest per month, a penalty of 1% ($124.30) per month, and reasonable attorney's ( fees and costs. COUNT II Unjust Enrichment (In the Alternative) 18. Capital Excavators hereby incorporates by reference the allegations contained in Paragraphs 1 through 17 above as if set forth herein at length. 19. Varish knew, or should have known, that the labor and materials provided by Capital Excavators would benefit Varish. 4 20. Varish knew, or should have known, that Capital Excavators was relying on its Contracts with Varish, and/or the representations made or directions given by agents, servants, and/or employees of Varish, to be paid in full for the work performed and materials provided. 21. V arish accepted and appreciated the benefits of all the materials and labor supplied and services performed by Capital Excavators. 22. Varish cannot possibly receive the benefits of Capital Excavators' work, materials, and services and not pay for the benefits received for such work and materials. 23. By retaining the benefits of the materials supplied and services rendered by Excavators without paying for that benefit, Varish has been unjustly enriched. Capital 24. The reasonable value of all of the material supplied and services rendered by Capital Excavators, less any payments received to date, is Twelve Thousand Four Hundred Thirty Dollars and Eighteen Cents ($12,430.18), exclusive of accrued interest, penalties, attorney's fees, and costs. 25. It would be inequitable for Varish to retain the benefit of the materials supplied and services rendered by Capital Excavators without paying the reasonable value of the material and services. 26. Pursuant to Section 512(a) of the Contractor and Subcontractor Payment Act, 73 P.S. § 501 et seq., Capital Excavators is entitled to recover interest of 1% ($124.30) per month and a penalty of 1% ($124.30) per month for all payments wrongfully withheld. 27. Pursuant to Section 512(b) of the Contractor and Subcontractor Payment Act, 73 P.S. § 501, et seq., Capital Excavators is entitled to reasonable attorney's fees and costs. WHEREFORE, Plaintiff Capital Excavators, Inc., respectfully requests this Honorable Court enter judgment in its favor and against Defendant Varish Construction, Inc., in the amount 5 of Twelve Thousand Four Hundred Thirty Dollars and Eighteen Cents ($12,430.18), plus 1% 124.30 interest per month, a penalty of 1% ($124.30) per month, and reasonable attorney's fees and costs. Respectfully submitted, Ali Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 anarker(a?kpc-law.com Dated: September 3, 2009 Counsel for Plaintiff Capital Excavators, Inc. 6 R PROPOSAL & AGREEMENT COPY Post office Box 126337 Harrisburg, PA 17112-6337 (717) 671-9525 TO Mr. Tom Varish Varish Construction, Inc. Fax - (717) 334-5902 DATE: September 14, 2005 BID: We hereby propose to furnish material and labor to complete the work outlined herein for the sum of: See Billing Rates Below Payment to be made as follows: Net 10 days Limekiln Road, York County submit specifications and bid for, Best Western- We hereby Mobilization with Capital Excavators truck and trailer $150.00 each $40.00 per hour 580 Backhoe $50.00 per hour CX-160 Trackhoe $35.00 per how Head Shaker for Trackhoe $45.00 per how Demo Hammer for Trackhoe $50.00 per how 622 Track Loader $30.00 per how Bomag BW 75 Walk Behind Roller $50.00 per how Single-Axle Dump Truck w/ driver $60.00 per how Tri-Axle Dump Truck w/ driver $45.00 per how Supervisor $50.00 per how Foreman $35.00 per how Operator $25.00 per hour Laborer $50.00 per day AGL Floor Laser (as needed) installation) d storm pipe d $125.00 per day e Pipe Laser (as nee Any fuel purchased by Capital Excavators will be billed as cost plus 10% mark-up Any materials or mobilizations purchased by Capital Excavators will be billed as cost plus 10% mark-up *AT T OTHER _ CONTRACTOR'S GUARANTEE We guarantee all material used in this contract to be as specified above and the entire job to be done in a neat, workmanlike manner. Any variations from plan or alterations requiring extra labor or material will be performed only upon written order and billed in addition to the sum covered by this Contract. Agreements made with our workmen are not recognized. SIGNED PRINTED SIGNATURE n NEEDED IS TO BE PROVIDED BY VARISH CONSTRUCTION, INC. DATE: 9114/2005 ACCEPTANCE OF BID The above specifications, terms and contract are satisfactory, and (1)(we) hereby authorize the performance of this work. DATE SIGNED ? wl- 4 ul / 6 THIS CONT CT IS VOID S COMPENSATIONE& PROPERITY DSIGNED AMAGEN LIABILITY NSD RANLAWS WE COMPLY WITH ALL WORKMAN' 1,3 ` J,Is ,..) ,1 Ire COPY VAfP'SH 800 gU!-LFROG RO"'-7 GETT`(SBURG, PA '17325 t CKNO. DAMn Ship Via None 4- 01-05-0054 Best Western, L.ime!<iln Road \Nork Dates 05-01-06 thru 05-04-06 operator CX-160 Laborer 622 Loader Dump Truck Ferguson Inv (836 49 + 16.95) 853.44 + 10% 66.00 hrs 35.00 9000 37.00 hrs ' 30.00 56.00 hrs 50.00 29:00 hrs 30.00 8.00 hrs i TERb4S: Net 15 Days Amount Billed Total Tax Retainage Held 2,310.00 1,850.00 1,680-00 1,450.00 240.00 938.78 $8,468 08,46 05-09-2006 BRIDGEPORT , NU VOIJ I + please contact with Questions: 856-467-1144 un1l,.Jl,l...l,61111L1111LIL1 CAPITAL EXCAVATORS PO BOX 126337 HARRISBURG, PA 17112-6337 00001002 6 1002 WHSE. WHSE. 924 924 PAONLY 0 RKW IBEST WESTERN MAKING PAYMENT AND REMI + t ?+• FERGUSON" Waterworks FEI #1920 PO BOX 827066 PHILADELPHIA, PA 19182-7066 SHtP Tt3: IO 05/01/06 6988 pEp kl :;:. 740 2 FT 72 213. 78 78 SDR35PU13 6X13 pVC SDR35 PVC GJ SWR PIPE SWR HUB FEM CO ADPT . 13.560 8 770 EA EA 67.80 43.85 5 5 PSSFAU 6 6 pVC SWR RH THRD CO PLUG . 6.680 EA 20.04 5 5 PSSTPU 6 pVC SWR GSKT CAP 210 11 EA 33.63 3 3 PSGCAPU 6 pVC SWR GXG 45 BEND . 26.820 EA 134.10 3 3 PSG4U g PVC SWR GXGXG TEE WYE 69.000 EA 276.00 5 5 4 PSGTYU NR1975A2 LAMPHOLE RNG & LID 789.14 4 INVOICE SUB-TOTAL TAX P NNSYLVANI ONLY 47.35 3tc?o Oct-) _ - 7 836.49 ORIGIN% INY?OtCfaximum rate allowed TERMS: ?IET }OTH PROX. Fps°? FNG00501.OTr 00001001 1 °°°°'g' II accounts are due an payab a per the Invoiced terms. All past due amounts are subject to a service c arge a t e m y state law plus costs of collection including attorney lees if incurred. Freight terms are FOB our dock unless otherwise specified above. Urm: SEE REVERSE SIDE A 10187 1 - ., ;. , , . PIP -0 Limekiln :flay: Brea do,Nrl of ilcurs for P-est ?,'esteri, 5/1/ 6 Operator (Dave)- Q8 hours Operator (Jeff) -8 hours Laborer (Rick)- 8 hours Laborer (Josh) -8 hours Trackhoe -8 hours Loader -8 hours 5/2_ /20_06 Operator (Dave)- 9 hours Operator (Jeff) -8 hours Laborer (Rick)- 8 hours Laborer (Josh) -8 hours Trackhoe -9 hours Loader -8 hours 5/33/2005 Operator (Dave)- 10 hours Operator (Jeff) -8 hours Laborer (Rick)- 8 hours Laborer (Josh) -8 hours Trackhoe -10 hours Loader -8 hours Dump Truck -8 hours 5/4_ 6 Operator (Dave)- 10 hours Operator (Jeff) -5 hours Laborer (Rick)- 4 hours Laborer (Josh) -4 hours Trackhoe - 10hours Loader - 5 hours 7 HARRISBURG, PA 17112-6337 PHONE: (717) 671-9525 FAX: (717) 652-6449 P.O.BOX 12633 , G CAPITAL EX(-.i'`,'A) ORS INC ,?jb I,KNIGHT ROAD HARRISBURG, PA 17111 COPY To: VARISH CONSTRUCTION, INC. 800 BULLFROG ROAD 25 GETTYSBURG, A Invoice Date Customer ID 05-24-2006 VARISH Draw ID Work Order 1 Invoice ID 1220 Ship Date Job Location: RODEWAY INN-FAtRVIEVV TOWNSHIP Ship Via None 01-06-0073 RODEWAY INN-FAIRVIEW TOWNSHIP Work Order # 39914 Demo pool and pool deck. Fill in pool with dirt. Cover with topsoil. Subtotal Total Due - NET 15 DAYS Amount Billed Total Tax Retainage Held 05-24-2006 5,310.00 5,310.00 $5,310.00 $5,310.00 ,r - - ; D rE OF ORDER _ --" AFECHANI: GUSTOI?AEFt ORDER NC ?y( PI101JE ? HELPER STARTING DATE ?,? / 1j ORDER TAKEN BY BILL TO t I i - ---=_ ADDRESS ? DAY WORK CONTRACT CITY EYTRA JOB NAIVE AND LOCATION I V _-_-- \? i JOB PHONE DESCRIPTION OF WORK; ' Pte) t 3 1 I \- ?I IC-3 _ ? i ? ?_ lys w t-j 1 L1 , ?` 1 Z kr r\5 DATE C MPLt i tu_ ?? Signature PRODUCT 259 moo j v '• C?- c? r ?YV'\?Y J TOTAL MATERIALS TOTALLABOR TAX -?- , WORK ORDERED BY M 1 1?r j TOTAL AMOUNT VVV ?- Y No one home IJ Total amount due for above work, or Total billing to ? be mailed after - % completion the satistactory completion of work 1 er y acl;nowledge of the above mentioned worl!. 15 x. Z - LIS -1150 ?g "CATION I Courtney W. Smyth, Principal of Capital Excavators, Inc., hereby state that I actual g which has been drafted by counsel. The f ' have read the foregoing C and statements contained therein are true and correct to the best of my information, knowledge, the language is that of counsel and, to the extent that the content of the foregoing belief, although document is that of counsel, I have relied upon counsel in making this Verification. I understand that the statements therein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unworn falsifications to authorities. a00 _ Date v V Co ney W. h, Princip Capital Excavators, Inc. 0 :RCE OF TMMjlobTApy 2089 SEP -4 Pm 2: Q 1 CUMBERLiV4D God ;\iTy PEWI VMA '18.50 PO Arty at,'"- 11080 V*,I,so aq CAPITAL EXCAVATORS, INC., Plaintiff V. VARISH CONSTRUCTION, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 09-6062 Civil Term : Civil Action - Law AFFIDAVIT OF SERVICE I hereby certify and return that a copy of the Complaint was served upon Peter M. Good, Esquire, counsel for Varish Construction, Inc., via first class mail at Smigel, Anderson & Sacks LLP, River Chase Office Center, 3`d Floor, 4431 North Front Street, Harrisburg, Pennsylvania 17110-1778, on September 17, 2009. A true and correct copy of Attorney Good's Acceptance of Service is attached hereto. Antho W. Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 aparkernkpc-law. com Dated: September 28, 2009 Counsel for Plaintiff Capital Excavators, Inc. Anthony W. Parker, Esquire PA ID 81251 Kelly, Parker & Cohen LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 aparker(aft2c-law. corn CAPITAL EXCAVATORS, INC., 681 Knight Road Harrisburg, PA 17111 Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. VARISH CONSTRUCTION, INC., 800 Bullfrog Road Gettysburg, PA 17325 No. C??l - (POco.? Clvil Tarn . Civil Action - Law Defendant ACCEPTANCE OF SERVICE I, Peter M. Good, Esquire, accept service of the Complaint on behalf of Varish Construction, Inc., and certify that I am authorized to do so. Respectfully submitted, t9"' ?' mi Peter M. Good, Esquire Smigel, Anderson & Sacks River Chase Off ce Center 4431 North Front Street Harrisburg, PA 17110 717-234-2401 FAX 717-234-3611 pgood(asasllp.com Dated: September a 2009 Counsel for Defendant Varish Construction, Inc. CERTIFICATE OF SERVICE On this 28`h day of September 2009, I, Pamela L. Russell, a legal secretary in the law firm of Kelly, Parker & Cohen LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing AFFIDAVIT OF SERVICE upon the person(s) and at the address(es) below named via United States First Class Mail, postage prepaid in Harrisburg, PA: Peter M. Good, Esquire Smigel, Anderson & Sacks River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 Counsel for Defendant Varish Construction, Inc. FAR. i i, See 2 r ' U i Anthony W. Parker, Esquire PA ID 81251 Kelly, Parker & Cohen LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 aj)arker(@kpc-law.com CAPITAL EXCAVATORS, INC., Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. No. 09-6062 Civil Term VARISH CONSTRUCTION, INC., Defendant Civil Action - Law IMPORTANT NOTICE To: Varish Construction, Inc. Date of Notice: October 9, 2009 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 717-249-3166 800-990-9108 Apth-ony"?V. Parker PA 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 aparker ,kpc-law.com Dated: October 9, 2009 Counsel for Plaintiff Capital Excavators, Inc. CERTIFICATE OF SERVICE On this 9th day of October 2009, I, Pamela L. Russell, a legal secretary in the law firm of Kelly, Parker & Cohen LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing IMPORTANT NOTICE upon the person(s) and at the address(es) below named via United States First Class Mail, postage prepaid in Harrisburg, PA: Peter M. Good, Esquire Smigel, Anderson & Sacks River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 Counsel for Defendant Varish Construction, Inc. 2009 OCT 13 PH 3: 25 C UM Y CAPITAL EXCAVATORS, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. No. 2009-6062 CIVIL VARISH CONSTRUCTION, INC., CIVIL ACTION - LAW Defendant. NOTICE TO PLEAD TO: Capital Excavators, Inc., Plaintiff, c/o Anthony W. Parker, Esq. Kelly, Parker & Cohen, LLP Commerce Towers -10th Floor 300 North Second Street Harrisburg, PA 17101 You are hereby advised to file a written response to the enclosed Defendant's New Matter to Plaintiff s Complaint within twenty (20) days from service hereof. SMIGEL, ANDERSON & SACKS, L.L.P. Date: October 19, 2009 By: t' Peter M. Good, Esqui e - ID #64316 Jessica E. Mercy, Esquire ID #206405 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants SMIGEL, ANDERSON & SACKS, L.L.P. River Chase Office Center 4431 North Front Street, 3`d Floor Harrisburg, PA 17110-1778 (717) 234-2401 CAPITAL EXCAVATORS, INC., Plaintiff, V. VARISH CONSTRUCTION, INC., Defendant. Peter M. Good, Esquire pgood@sasllp.com Jessica E. Mercy, Esquire jmercy@sasllp.com Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 2009-6062 CIVIL CIVIL ACTION - LAW ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW comes Defendant Varish Construction, Inc. (hereinafter "Varish"), by and through its attorneys, Smigel, Anderson & Sacks LLP, who files the following Answer with New Matter to Plaintiffs Complaint and in support thereof avers as follows: The Parties: 1. Admitted upon information and belief. 2. Admitted. Venue: 3. Admitted. Background: 4. Admitted. 5. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 6. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 7. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. By way of further denial, Varish paid Capital Excavators, Inc. (hereinafter "Capital") for the materials and labor supplied under the Best Western Contract in full on or about May 2, 2007 and no balance remains unpaid by Varish. 8. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. By way of further denial, Varish paid Capital for the work completed under the Rodeway Inn Contract in full on or about May 2, 2007 and no balance remains unpaid by Varish. 9. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 10. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. By way of further denial, Varish paid Capital for the materials and labor supplied under the Best Western Contract and the work completed under the Rodeway Inn Contract in full on or about May 2, 2007 and no balance remains unpaid by Varish. 11. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 12. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 13. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. COUNTI Breach of Contract 14. This is an incorporation paragraph to which no responsive pleading is required. 15. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 16. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 17. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Defendant Varish Construction, Inc. respectfully requests that this Honorable Court dismiss Plaintiff's Count I and enter judgment in its favor and against Plaintiff together with any costs associated therewith. COUNT II Unjust Enrichment (In the Alternative) 18. This is an incorporation paragraph to which no responsive pleading is required. 19. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 20. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 21. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 22. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 23. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 24. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 25. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 26. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 27. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Defendant Varish Construction, Inc. respectfully requests that this Honorable Court dismiss Plaintiff's Count II and enter judgment in its favor and against Plaintiff together with any costs associated therewith. NEW MATTER 28. Varish hereby incorporates by reference paragraphs 1 through 27 of this Answer with New Matter as if fully set forth herein. 29. Capital's Complaint fails to state a claim for breach of contract against Varish for which relief can be granted. 30. Capital's Complaint fails to state a claim for unjust enrichment against Varish for which relief can be granted. 31. Capital's claims may be barred in whole or in part by the Doctrine of Laches. 32. Capital's claims are barred in whole or in part by the Doctrine of Unclean Hands. 33. Capital's claims are barred in whole or in part by its failure to litigate any damages sustained (all of which are denied). 34. Capital's claims may be barred in whole or in part by the doctrine of accord and satisfaction. 35. During the construction of the Best Western Hotel located on Limekiln Road, Cumberland County, Pennsylvania, the owner of the Rodeway Inn located across the street from the Best Western Hotel approached Varish and asked him to fill in his pool with the dirt fill that had accumulated at the Best Western Hotel. 36. Thereafter, Varish contacted Capital and requested that it transport the dirt fill from the Best Western Hotel to the Rodeway Inn located directly across the street and use the dirt fill to fill the pool. 37. However, rather than moving the dirt fill from the Best Western Hotel to the Rodeway Inn, Capital brought dirt fill to the Rodeway Inn from a different location and then removed the dirt fill from the Best Western Hotel and transported it to yet another location. 38. When Varish received the final invoices from Capital for the materials and labor supplied under the Best Western Contract and the work completed under the Rodeway Inn Contract, Varish informed Capital that it was not paying the full amount of the invoices because Varish was being charged for (1) the cost to bring dirt fill to the Rodeway Inn from a location other than the Best Western Hotel and (2) the cost to remove the dirt fill from the Best Western Hotel and transport it to yet another location, when the terms of the agreement between the Varish and Capital required Capital to simply move the dirt fill from the Best Western Hotel to the Rodeway Inn located directly across the street. 39. As a result, a bona fide dispute arose between the parties regarding the true amount owed to Capital by Varish for the work completed under the Best Western Contract and the Rodeway Inn Contract. 40. On or about May 2, 2007, when Capital approached Varish seeking payment, Varish offered Capital $7,285.00 as payment in full and in satisfaction of the balance remaining under the Best Western Contract and the balance remaining under the Rodeway Inn Contract. 41. At that time, Varish indicated that Capital's acceptance of the $7,285.00 would in satisfaction of the entire amount due under both the Best Western Contract and the Rodeway Inn Contract. 42. Capital accepted Varish's offer of $7,285.00 as payment in full and in satisfaction of the entire amount due under the Best Western Contract and the Rodeway Inn Contract, and such acceptance constituted a valid accord and satisfaction between the parties. WHEREFORE, Defendant Varish Construction, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff together with costs and any other relief that this Court deems just. Respectfully submitted, SMIGEL, ANDERSON & SACKS, LLP Date: October 19, 2009 By ?6 ?04 Peter M. Good, Esq ire ID #64316 Jessica E. Mercy, E quire ID #206405 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant 10/19/2009 10:51 3345902 THOMAS PAGE 03/03 VESICATION The undersigned hereby verifies that he is the President of the named Defendant in the foregoing action, that the facts set forth in the Answer and New Matter are true and correct to the best of his knowledge, information, and belief, and further states that false statements herein are made subject to he penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Date: 16 (2 d 4 Thomas E. Varish, President of Vaxish Construction, Inc. CAPITAL EXCAVATORS, INC., Plaintiff, V. VARISH CONSTRUCTION, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 2009-6062 CIVIL CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Defendant in the above-captioned matter, certify that I this day served a copy of the foregoing Answer with New Matter to Plaintiffs Complaint upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Anthony W. Parker, Esquire Kelly, Parker & Cohen, LLP Commerce Towers -10`h Floor 300 North Second Street Harrisburg, PA 17101 Date: October 19, 2009 SMIGEL, ANDERSON SACKS, LLP By: gr'?' Peter Good, Esqui e ID 464316 Jessica E. Mercy, Esquire ID #206405 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant ,i.,1f rA Rif, 2CC9 O1,; It 9 KA 12: 4U Ra Anthony W. Parker, Esquire PA ID No. 81251 Kelly, Parker & Cohen LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717- 920-2220 FAX 717-920-2370 Qarker(a kpc-law.corn CAPITAL EXCAVATORS, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. No. 09-6062 Civil VARISH CONSTRUCTION, INC., Civil Action - Law Defendant REPLY OF CAPITAL EXCAVATORS, INC., TO DEFENDANT'S NEW MATTER 28. Capital Excavators, Inc. ("Capital Excavators"), hereby incorporates by reference the allegations contained in Paragraphs 1 through 27 of its Complaint as if set forth at length. 29. Denied. The averments contained in Paragraph 29 of New Matter constitute conclusions of law to which no response is required. 30. Denied. The averments contained in Paragraph 30 of New Matter constitute conclusions of law to which no response is required. 31. Denied. The averments contained in Paragraph 31 of New Matter constitute conclusions of law to which no response is required. 32. Denied. The averments contained in Paragraph 32 of New Matter constitute conclusions of law to which no response is required. 33. Denied. The averments contained in Paragraph 33 of New Matter constitute conclusions of law to which no response is required. 34. Denied. The averments contained in Paragraph 34 of New Matter constitute conclusions of law to which no response is required. 35. Denied as stated. It is admitted that Varish Construction, Inc. ("Varish"), was requested to fill in the pool at the Rodeway Inn. It is further admitted that Varish subcontracted Capital Excavators to fill in the pool at the Rodeway Inn. It is denied Varish instructed Capital Excavators to use "fill dirt" from the Best Western Hotel to fill in the pool at the Rodeway Inn. In fact, Varish did not want to use the soil from the Best Western Hotel as it was topsoil. By way of further answer, there was no fill dirt available for use from the Best Western Hotel. Fill dirt had to be brought into the Best Western Hotel to raise it to grade. By way of further response, Capital Excavators did use topsoil, which was available at the Best Western Hotel, to cover the fill dirt used in the Rodeway Inn project. 36. Denied as stated. It is admitted that Varish Construction, Inc. ("Varish"), was requested to fill in the pool at the Rodeway Inn. It is further admitted that Varish subcontracted Capital Excavators to fill in the pool at the Rodeway Inn. It is denied Varish instructed Capital Excavators to use "fill dirt" from the Best Western Hotel to fill in the pool at the Rodeway Inn. In fact, Varish did not want to use the soil from the Best Western Hotel as it was topsoil. By way of further answer, there was no fill dirt available for use from the Best Western Hotel. Fill dirt had to be brought into the Best Western Hotel to raise it to grade. By way of further response, Capital Excavators did use topsoil, which was available at the Best Western 37. Denied. Varish initially requested Capital Excavators use spill dirt from the Best Western Hotel project to fill in the pool at the Rodeway Inn. However, Capital Excavators advised Varish that there was only topsoil available at the Best Western Hotel. In response, Varish declined to use the topsoil from the Best Western Hotel project for anything other than 2 the final coating on the Rodeway Inn project. Varish instructed Capital Excavators to import fill dirt from another location and to utilize topsoil to cover the fill dirt. By way of further answer, Capital Excavators did not charge Varish to remove fill dirt from the Best Western Hotel as there was no fill dirt to be removed. Fill dirt had to be imported to the Best Western Hotel project in order to bring it up to grade. 38. Denied. It is specifically denied that the terms of the Best Western Hotel contract and the Rodeway Inn contract required Capital Excavators to simply remove fill dirt from the Best Western Hotel project to the Rodeway Inn project. 39. Denied. The allegations contained in Paragraph 39 of New Matter constitute conclusions of law to which no response is required. To the extent the averments are deemed factual in nature, it is specifically denied that a bona fide dispute arose between the parties regarding the amount owed to Capital Excavators by Varish for work completed under the Best Western Hotel contract and the Rodeway Inn contract. By way of further answer, there is no dispute as to the amount owed for the work performed. 40. Denied. Capital Excavators specifically denies that it accepted a payment in the amount of $7,285 as payment in full for the amounts due under both the Best Western Hotel contract and the Rodeway Inn contract. By way of further answer, Capital Excavators advised that it would not accept $7,285 as payment in full. At the time the payment was made, Varish acknowledged owing money above and beyond the $7,285 it was paying. 41. Denied as a conclusion of law to which no response is required. To the extent the averments are deemed factual in nature, it is specifically denied Capital Excavators accepted a payment in the amount of $7,285 as full and final satisfaction of the entire indebted owed under the Best Western Hotel contract and the Rodeway Inn contract. WHEREFORE, Plaintiff Capital Excavators, Inc., respectfully requests this Honorable Court enter judgment in its favor in the amount of $12,430.18 plus one percent (1%) interest per month, a penalty of one percent (1%) per month, and reasonable attorney's fees and costs. Respectfully submitted, thou . Parker PA ID No. 81251 KELLY, PARKER & COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 aparker kpc-law.com Dated: November 12, 2009 Counsel for Plaintiff Capital Excavators, Inc. 4 CERTIFICATE OF SERVICE On this 12'' day of November 2009, I, Pamela L. Russell, a legal secretary in the law firm of Kelly, Parker & Cohen LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing REPLY OF CAPITAL EXCAVATORS, INC., TO DEFENDANT'S NEW MATTER upon the person(s) and at the address(es) below named via United States First Class Mail, postage prepaid in Harrisburg, PA: Peter M. Good, Esquire Smigel, Anderson & Sacks River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 Counsel for Defendant Varish Construction, Inc. 07 N4? 19 t'NR t : 2?+ 1441 CAPITAL EXCAVATORS, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. No. 09-6062 Civil VARISH CONSTRUCTION, INC., Civil Action - Law Defendant ORDER OF THE COURT v AND NOW, a? , 2011, in consideration of the foregoing petition, Esq.,-and t q-' ??{??? , , Esq., are appointed Arbitrators in the above captioned action (or actions) as prayed for. Distribution: By the Court, P.J. Anthony W. Parker, Esq., Kelly, Parker & Cohen, LLP, 5425 Jonestown Road, Ste. 103, Harrisburg, PA 17112 Peter M. Good, Esq., Smigel, Anderson & Sacks, Riverside Chase Office Center, 4431 North Front Street, Harrisburg, PA 17110 C" MW M? pC') C ? :x ? -; - . CD -4 , • Anthony W.Parker,Esquire PA ID No.81251 Kelly,Parker&Cohen LLP " i• --- 5425 .5425 Jonestown Road, Suite 103 Harrisburg,PA 17112 1,v 717-920-2220 i rii r.' FAX 717-920-2370 aparker ii:kpc-law.COM CAPITAL EXCAVATORS, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, : PENNSYLVANIA v. : No. 09-6062 Civil VARISH CONSTRUCTION, INC., : Civil Action—Law Defendant STATEMENT OF INTENTION TO PROCEED TO THE PROTHONOTARY: Please be advised that Plaintiff, Capital Excavators, Inc., intends to proceed with the above captioned matter. Respectfully submitted, de f R - ntho . Parker PA ID No. 81251 KELLY, PARKER& COHEN LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 717-920-2220 FAX 717-920-2370 aparker%cikpc-1aw.com Dated: October 10, 2014 Counsel for Plaintiff Capital Excavators, Inc. CERTIFICATE OF SERVICE On this 13th day of October 2014, I, Kristine F. Hendrix, a legal secretary in the law firm of Kelly, Parker& Cohen LLP, hereby certify that I have, this day, served a true and correct copy of the foregoing STATEMENT OF INTENTION TO PROCEED upon the person(s) and at the address(es) below named via United States First Class Mail, postage prepaid in Harrisburg, PA: Peter M. Good, Esquire Smigel, Anderson& Sacks River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 Counsel for Defendant Varish Construction, Inc. /4<;.-Z-pcle47 Kristine F. Hendrix Robert E. Chernicoff, Esquire PA Supreme Court ID # 23380 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 ,LED-OFHCE OF THE PROIHONOTARI 2014 OCT 1 7 PM 2: 23 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CAPITAL EXCAVATORS, INC. Plaintiff : No. 09-6062 V. VARISH CONSTRUCTION, INC. : Civil Action - Law Defendant NOTICE OF STAY NOTICE IS HEREBY GIVEN that Varish Construction, Inc., an above-named Defendant, has filed a Petition under Chapter 11 of the United States Bankruptcy Code to Case No. 1:14-03677 and as a result thereof, the above -captioned action is stayed until further Order of the United States Bankruptcy Court. The 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. Respectfully submitted, CUNNINGHAM & CHE' ICOFF, P.C. Date: October 16, 2014 obert E. Che I.D. #23380 2320 North Second Stree P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 CERTIFICATE OF SERVICE I, Joanne M. Bartley, do hereby certify that a true and correct copy of the NOTICE OF STAY was sent by first class mail, postage prepaid on October 16, 2014, to the following: Anthony W. Parker, Esquire Kelly Parker & Cohen LLP 5425 Jonestown Road, Suite 103 Harrisburg, PA 17112 e M. Bartley Assistant to Robert E. Chernicoff, Esquire 2