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HomeMy WebLinkAbout09-6772' cnMR90NWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS 9th Judicial District, County Of Cumberland NOTICE OF APPEAL FROM MAGISTERIAL DISTRICT JUDGE JUDGMENT /11 COMMON PLEAS No. pQ NOTICE OF APPEAL s~2rn Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District Judge on the date and in the case referenced below. NAME OF APPELLANT MAG. DIST. NO. NAME OF MDJ Lobar Associates, Inc. 109-3-05 Mark Martin ADDRESS OF APPELLANT CITY STATE ZIP CODE 4 Barlo Circle Dillsburg PA 17019 DATE OF JUDGMENT IN THE CASE OF (Plaintift) (Defendant)' 9/29/09 Black Landscape Contracting vs obar Associates, Inc. DOCKET No. SIGZ: LANT OR ATTORNEY OR AGENT CV-0000298-09 S Williams, Esq. PA I.D.#62051 This block will be signed ONLY when this notation is required under P R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the Magisterial District Judge, will operate as a SUPERSEDEAS to the judgment for possession in this case. Signature of Prothonotary or Deputy was Claimant (see Pa. R. C. P. D. J. No. 1001(6) in action before a Magisterial District Judge, A COMPLAINT MUST BE FILED within twenty (20) days after filing the NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before Magisterial District Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Black Landscape Contracting Name of appellee(s) (Common Pleas No. ..1172- within twenty (20) days after , to file a complaint in this appeal rule or suffer entry of judgment of non pros. Signature of appellant or attorney or agent Steven M. Williams, Esq., PA I.D. #62051 RULE: To Black Landscape Contracting appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date c Dater r- YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-05 FILED-,CrFiCE or THE R7";,-`,- l0TARY 2009 OCT -9 P11 3: 53 ATY f?'S. ZS l?? { c« *L .3 s-;),, 12? ?317?,? PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF Cumberland ; ss AFFIDAVIT: I hereby (swear) (aftr4 that I served ® a copy of the Notice of Appeal, Common Pleas No. (date of service) , 20 , upon the Magisterial District Judge designated therein on ? by personal service ® by (certified) ($agWered) mail, sender's receipt attached hereto, and upon the appellee, (name) Black Landscape Contracting, on 20 ?by personal service® by (certified) {fegietef Omail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF , 2009 Signature of official before whom affidavit was made Signature of affiant Steven M. Williams, Esq. 240 North Third Street, a Floor Harrisburg, PA 17101 (717) 234-5530 Title of official My commission expires on , 20 AOPC 312A - 05 ( IAONWEALTH OF PENNSYLVANIA ?`f,i ?? ??• coastia? 09-3-05 NOTICE OF JUDGMRRANSCRIPT CnnL CA E PLAINTIFF: twE.w pac ? rM aCE ca:s 1360 l.LIMMM m X§Cn=CSMM, PA 17055 L J VS. DEFENDANT: NMeNWADOPIUM rLO?as AISi10CIATSBI IMC wift" HM Nam MAR= """"' 507 ! a 8T ?G9>EasICOBURG, PA ran--. (717) 766-4575 17055 LOSAR A/80CIAT , xMC 4 NARW CIRCLE DILLONUMO, PA 17019 THIS IS TO NOTIFY YOU THAT: Judgment: 9= PTAINTZ" (Date of Judgment) 9/29/09 Q Judgment was entered for. (Name) SZ.i= TAMBCAP= Or'Mv "T Judgment was entered agakist: (Narne.) LMM ASsOCIAM ZIP © in the amount of $ t,1 4 . Defendents are 0* and smr* liable. Damages will be assessed on Date 8 Time This cue dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 S Portion of Judgment for physical damages arift out of --- JudgM0nt Coots 13 ?M Interest on Judgment $ •04 Attorney Fees $ :0r0 Ta 8,134.50 Poet AWWnwd Credits $ Post Judgment Coots $ CwWlod JtrdBn wd Told Z 7=-71 ANY PARTY HAS THE R1WfT TO APPEAL WTTHNN 30 DAYS AFTER THE ENTRY OF JUD I1W T BY PTLNNNY A NOTICE OF APPEAL WITH THE PROS 1HONO1 ARYIWM OF THE COURT OF COMAON PLEAt, CIVM_ DNWI W YOU MW INCLUDE A COPY OF 7HII NO= OF JUDGMENTMAMCRWT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IH THE RUL.E8 OF CM& PROCEDURE FOR MAONRTTONAL DINTIOCT JUDWS, IF THE •,AXMMW.."CUM Tt TO /LATER THE AXXW EO T W THE COURT OF COMMDN PLJaAtL, ALL. FURTHER PRO MUST COME PROM THE 66U NT OF 00016ift 0-L€" Alm NO ANITHER'PROI:ESS MAY THE MSUED BY THE MAQMM MAL LMSTAICT JUDGE, LUMS THE JUDGMENT E WWfEMD Nr THE COURT OF COMMON PLEAS, ANVOI E WTIIPESIiID NI THE JUDOWNT MAY PILE A R40LIIST FOR DORY OF "TWFACTM WITH THE MAG TWAAL DWTIMCT JUDGE IF THE JUDGMENT DWTOR PAYS M FULL, SEMES, OR OTHERWISE-COMPIS.Mfl:1 H THE JUDGMENT. Msgl*WW District • I cerW that Weis a true-and •ooP ed OOpyOfttle "record Of the proceedkW -containing the Judgment. . Date , Magisterial District Judge My oonxniseion expires flrst Monday Of Januaa ry, 2012 SEAT AOPC 315-07 DMM Pza'!me 9/30/09 2802100 P!M 4 sAIRLO Clue= DMAMURG, VA 17019 L J Docket No.: CV-0090298-89 Date Filed: 8/24/09 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF Cumberland ; ss AFFIDAVIT: I hereby (swear){affirythat I served ® a copy of the Notice of Appeal, Common Pleas No.09-6772 Civil, upon the Magisterial District Judge designated therein on (date of service) October 12, 2009, ? by personal service ® by (certified)/fsois6an* mail, sender's receipt attached hereto, and upon the appellee, (name) Black Landscape Contracting, on October 12, 202009 ?by personal service ® by (certified) 0eyiWin" mail, sender's receipt attached hereto. I'll (SWORI (AFFIRME" A?VD SUBSCRIBED BEFORE ME THIS 1 A DAY OF ?2009 Y iv; ignatureof official before who a rdavit was made Also one" Mir In : Title of official My commission expires on 4?1 , 20 7 -W aTgnature of arrant Steven M. Williams, Esq. 240 North Third Street, 7th Floor Harrisburg, PA 17101 (717) 234-5530 AOPC 312A - 05 • Postal CERTIFIED MAIL, RECEIPT m (Domestic Only; No Insurance Coverage Provided) N M rI Postage $ M Certified Fee O C3 Return Receipt Fee Postmark O (Endorsement Required) Here O Restricted Delivery Fee t3 (Endorsement Required) M rU Total Postage K Fees $ i m Sent Iri 03 Y, or PO Box No. 1,"l?/) _ J_. .- IS .CMy -- .. ............... City, State, ZI (Domestic Only; ? Insurance Coverage Provided) CO N For delivery information visit our websit e at www.usps.co M - r-q ?- Postage $ M Certified Fee 0 Postmark O C3 Return Receipt Fee (Endorsement Required) Here 0 Restricted Delivery Fee 0 (Endorsement Required) M W Total Postage & Fees M cc) Sent To -- C3 C3 Street, A . No.: ..,? or PO Box No. /?) - -•-•----• - -_ - ,rye City, State, ZIP I 0" [ti For delivery inform ation visit our w ebsite at www.usps.com m _r Postage $ M Certified Fee O Postmark O O Return Receipt Fee (Endorsement Required) Here C3 Restricted Delivery Fee C3 (Endorsement Required) M rU Total Postage & Fees m ent T mA) a! '1a C3 M o..--- -- Street, . No.; or PO Box No. . -- n " / M _ ----- State, ZIW4 C/ty, ft wil OMelvol Jl d / lei /? Om ?/ ?° Cohen Seglias Pallas Greenhall & Furman, PC Steven M. Williams, PA I.D. # 62051 silliams@cohenseglias.com 240 N. Third Street, 7'" Floor Harrisburg, PA 17101 (717) 234-5530 Attorneys for Defendant BLACK LANDSCAPE CONTRACTING, INC., Plaintiff V. LOBAR ASSOCIATES, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 09-6772 Civil Term JURY TRIAL DEMANDED CIVL ACTION - LAW P_RAECIPE REGARDING SERVICE (SUPPLEMENTAL) OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT To the Prothonotary: Please accept this Praecipe and the attached Domestic Return Receipts as Supplemental Proof of Service of the Notice of Appeal and Rule to File Complaint (herein, "Notice") in this case. As indicated on the attached Domestic Return Receipts, Magisterial District Judge Mark Martin received the Notice on October 14, 2009, and Plaintiff s attorney, Gerald S. Gaetano, received the Notice on October 15, 2009. Respectfully Submitted, Date: 10I Zpl - Cohen & Furman, PC Stev U. Williams, PA I.D. #62051 silliams@cohenseglias.com 240 North Third Street, 7th Floor Harrisburg, PA 17101 (717) 234-5530 Attorneys for Defendant 2 CERTIFICATE OF SERVICE I hereby certify that the foregoing Praecipe was sent by first class mail, postage prepaid this day to the following: Gerald S. Gaetano, Esquire Whitney & Bogris, LLP 401 Washington Avenue, 12th Floor Towson, MD 21204 Attorneys for Plaintiff Date: IDI AO P17 Respectfully submitted, Cohen Seglias Pallas Greenhall & Furman PC B ' Y: Alison A. Zortman, al Assistant 240 North Third Street, 7th Floor Harrisburg, PA 17101 (717) 234-5530 Attorneys for Defendant #817887-v1 08273-0022 .. , % Compbts k ms 1, 2, and.& Also oompbte !tern 4 It Restrlot is desired. w • Print your name ! on the reverse so that we to you. • Attach this aeA of the malipiece, or on the front N . 1. ArWe Addressed to: "4 V?tr ?YK fty i6 (??c??s hur f g / 7? D. lsdelivery sddmw Vftw t from Rem 19 ti Y• H YES, enter delivery address below If No a t wwm Type MC-0 Map O 13tgeas Mail O Reptatwed pAmWn Receipt for Merar.M•li. 0 Insured Mail 0 C.O.D. 4. RaaMded DaYwry! O5rtra Feed 0 lies 2. ArecisNumtber 7008 3230 0000 3413 7797 Pam I, Mi WMV 2m Daenseiltsf?MrrntllraaMc Complete sterns 1, 2, and 3. Also compide A. item 4 If Rest acted-Delivery Is desired. 0 Agent . ¦ Print your name and address on the reverse 0 so that we can return the card to you. B, by (PrhrEad Ab"AJ C. Deis / ¦ Attach this card to the back of the mailpiece, C-? or on the front If space permits. D. Is delvery addre? wifft6rRem 1? ves 1. Artlde Addressed to: tf YEs, enter deihwy address below: O No 8eevlos Typo l0I INC n Rogial Mel Flulun n I r [ 0 immed ma 0 C.O.D. sr?l'1 MD ?9 cal 4. Restricted Delivery? Pft Fb 0 Yes 2' Ardcl'"u"1b°r 7008 3230 0000 3413 7780 (Trarrelbr Arxr? asrvk?e ? PS Fatter Ulf, Pdomry UN FLED-'-, 2009 OCT 21 PPI 12:4 8 CUN :aJi?diY Gerald S. Gaetano Whitney & Bogris, LLP 401 Washington Avenue, 12`h Fl. Towson, MD 21204 (410) 427-8044 ggae tano Qwhitneybogris. com Attorneys for Plaintiff BLACK LANDSCAPE CONTRACTING, INC., Plaintiff, V. LOBAR ASSOCIATES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . CIVIL ACTION - LAW NO. 09-6772 CIVIL TERM 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 Gerald S. Gaetano Whitney & Bogris, LLP 401 Washington Avenue, 121h Fl. Towson, MD 21204 (410) 427-8044 ggaetano0a whitneybogris.com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS BLACK LANDSCAPE OF CUMBERLAND COUNTY, CONTRACTING, INC., PENNSYLVANIA Plaintiff, V. CIVIL ACTION - LAW LOBAR ASSOCIATES, INC., NO. 09-6772 CIVIL TERM Defendant. COMPLAINT AND NOW COMES the Plaintiff, Black Landscape Contracting, Inc., by and through its attorneys, Whitney & Bogris, LLP, and, in support of its Complaint, hereby avers as follows: PARTIES 1. Plaintiff, Black Landscape Contracting, Inc., is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with offices located at 1360 East Lisburn Road, Mechanicsburg, Pennsylvania 17055. 2. Defendant, Lobar Associates, Inc., is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with offices located at 4 Barlo Circle, Dillsburg, Pennsylvania 17019. FACTUAL BACKGROUND 3. At all times relevant herein, Defendant was the general contractor on a project on commercial property known as the Harrisburg Foot and Ankle Center, located 2 at the intersection of Linglestown Road and Crums Mill Road in Dauphin County, Pennsylvania, having an address of 4033 Linglestown Road, Harrisburg, Pennsylvania, alternatively referred to in Dauphin County property records as having an address of 2251 Crums Mill Road, Harrisburg, Pennsylvania, and more particularly identified as the "New Lot" as shown on the Preliminary/Final Subdivision /Land Development Plan for Allan and Annette Grossman, dated June 20, 2007, prepared by Evans Engineering, Inc. and recorded on April 9, 2008 in the Office of the Dauphin County Recorder of Deeds as Instrument No. 20080012596. 4. Upon information and belief, at all relevant times, the owners of the property on which the Harrisburg Foot and Ankle Center was erected and constructed were Dr. Allan Grossman and his wife, Annette Grossman. COUNT I - BREACH OF CONTRACT 5. Plaintiff incorporates all preceding paragraphs as if fully set forth herein. 6. On or about November 24, 2008, Defendant, as general contractor, entered into a subcontract (hereinafter "Agreement") with Plaintiff, as subcontractor, pursuant to which Defendant agreed to pay Plaintiff the sum of $8,200.00 as consideration for Plaintiff's performance of landscape services on the Harrisburg Foot and Ankle Center project. A true and correct copy of the Agreement between Plaintiff and Defendant is attached hereto and incorporated herein as "Exhibit L" 7. From on or about November 26, 2008 through on or about December 5, 2008, Plaintiff provided landscape services and required materials pursuant to the Agreement with Defendant. 3 8. Specifically, Plaintiff provided landscape services, products and materials, including planting of various trees, flowers, and shrubs, mulching and fertilizing, substantially as follows: Trees and Shrubs $4,527.00 Tree Stakes $54.00 Tanbark Mulch $105.00 Plantone Fertilizer $19.00 Landscape Labor & Service $3,495.00 Total $8,200.00 9. Plaintiff completed all services and work pursuant to its Agreement with Defendant by December 5, 2008. 10. Upon information and belief, by December 23, 2008, Defendant was paid in full by Dr. and Mrs. Grossman for the landscape work and services provided by Plaintiff on the Harrisburg Foot and Ankle Center project. 11. On or about December 22, 2008, Plaintiff tendered application for payment for the full amount of $8,200.00 from Defendant under the Agreement. 12. As of the date of the filing of this Complaint, Plaintiff has not received any payment for the services it performed and the materials it furnished pursuant to the Agreement with Defendant despite numerous requests therefor. 13. Defendant's failure to make payment and unjustified retention of funds received from the project owners for the landscape services and materials provided by Plaintiff has been and continues to be in bad faith and in breach of the covenant of good faith and fair dealing. 14. Defendant is obligated under the Agreement to pay Plaintiff for its services and materials, and Defendant's failure to make payment is a material breach of the Agreement. 4 15. Based upon the foregoing, Defendant is liable to Plaintiff for breach of contract. 16. Plaintiff has been damaged by Defendant's breach of contract in that it has not been paid for the services that it completed and the materials that it furnished. Plaintiff has also been damaged by Defendant's breach of contract in that it has not been paid interest as allowed by law from the date full payment was rightfully due. WHEREFORE, Plaintiff, Black Landscape Contracting, Inc., respectfully requests that judgment be entered in its favor and against Defendant, Lobar Associates, Inc., in the amount of $8,200.00 plus interest, costs and expenses as permitted by law. COUNT II - UNJUST ENRICHMENT/IMPLIED CONTRACT 17. Plaintiff incorporates paragraphs 1 through 4, and paragraph 8 above as if fully set forth herein. 18. Plaintiff conferred benefits on Defendant in the form of landscape services and materials worth $8,200.00. 19. Defendant was aware of and accepted the services and materials provided by Plaintiff. 20. Defendant benefited from the services and materials provided by Plaintiff. 21. Upon information and belief, Defendant used Plaintiff's work on the project to obtain required developmental, interim, and/or progress approvals, permits, and payments on the project. 22. Defendant has refused to pay Plaintiff for the value of the services and materials provided for the project. 5 23. It would be inequitable for Defendant to retain the benefit of the services and materials provided by Plaintiff without payment of fair value for those services and materials. 24. Defendant will be unjustly enriched if it is not required to pay Plaintiff for the benefit Defendant received as a result of the services and materials provided by Plaintiff. WHEREFORE, Plaintiff, Black Landscape Contracting, Inc., respectfully requests that judgment be entered in its favor and against Defendant, Lobar Associates, Inc:., in the amount of $8,200.00 plus interest, costs and expenses as permitted by law. COUNT III - CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT 25. Plaintiff incorporates paragraphs 1 through 16 above as if fully set forth herein. 26. The Agreement between Plaintiff and Defendant and Defendant's payment obligations thereunder are governed by the Pennsylvania Contractor and Subcontractor Payment Act, 73 P.S. § 501, et seq. (hereinafter "the Act"). 27. Plaintiff performed and completed services and furnished materials on the project pursuant to its Agreement with Defendant. 28. Defendant did not provide Plaintiff with timely written notice of any deficiency item in Plaintiff's work. 29. Defendant did not provide Plaintiff with timely written notice of any error, defect, or impropriety in Plaintiff's billing for services performed and materials furnished pursuant to the Agreement. 30. Defendant's failure to pay Plaintiff in a timely manner is a violation of the Act, including but not limited to, sections 504, and 507 through 511 thereof. 6 31. Defendant has failed to provide any legitimate justification for withholding payment to Plantiff for the services and materials Plaintiff provided on the project. 32. Defendant's withholding of payment from Plaintiff has been in bad faith and in violation of the Act as set forth herein. 33. Based upon Defendant's failure to comply with the Act, Plaintiff is entitled to interest, penalties, attorneys fees, and expenses, which continue to accrue, pursuant to sections 505(d), 507, 509, 510, and 512 of the Act. WHEREFORE, Plaintiff, Black Landscape Contracting, Inc., respectfully requests that judgment be entered in its favor and against Defendant, Lobar Associates, Inc., in the amount of $8,200.00, and, as permitted by law, interest, penalties, attorneys' fees, costs, and expenses, which continue to accrue. Respectfully submitted, WHITNEY & BOGRIS, LLP Dated: November 2, 2009 BY: Gerald S. Gaet o (PA 69520) 401 Washington Avenue, 121 Fl. Towson, MD 21204 (410) 427-8044 ggaetano@whitneybogris.com Attorneys for Plaintiff BLACK LANDSCAPE CONTRACTING, INC. 7 VERIFICATION I, Gregory Black, President, Black Landscape Contracting, Inc., hereby verify that I am authorized to execute this Verification on behalf of Black Landscape Contracting, Inc. and that the facts set forth in the foregoing document are true and correct to the best of my knowledge, and information or belief. To the extent that the contents of the foregoing document are that of counsel, I have relied upon such in making this Verification. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904, relating to unworn falsificatioi BY: 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 2111 day of November 2009, I caused a true and correct copy of the foregoing Complaint to be sent via United Parcel Service overnight mail to the following person (s) : Steven M. Williams, Esquire Cohen Seglias Pallas Greenhall & Furman, PC 240 North Third Street, 7"' Floor Harrisburg, PA 17101 Attorney for Defendant Lobar Associates, Inc. Gerald S. Gaetano 9 EXHIBIT ASSOM S D'c-'C 0 12098 SUBCONTRACT AGREEMENT BETWEEN CONTRACTOR & SUBCONTRACTOR Subcontract# 071102900s19 AGR.EFIN4EN'T MADE AS OF THE 24 DAY OF NOVEMBER N TH)=. ' TAR OF TWO THOUSAND AND EK314T BETI 17EENi THE CONTRACTOR: LOBAR ASSOCIA'T'ES, INC. 4 BARLO CIRCLE P.O. 432 DILLSBURG, PA 170I9-0432 AND THE SUBCONTRACTOR : Black Landscape Cont., Inc. 717-697-4439 1360 East Lisburn Road Mechanicsburg, PA 17055 WITN'E,SSETH, THAT THE SUBGONTI? ACTOR ANTD CONTRACTOR. FOR TFE CONSIDERATION HEREitiAFTER h A MED AGREE AS FOLLOWS: ARTICLE I. 1 he subcontractor agrees to furnish all material and perform all work as described in article ii hereof for: lfsbrg Footcf Anki Grossinu PA For LOBAR ASSOCIATES; ENC. in accordance with this agreement, the aggree rent bemeen the owner & contractor, & in accordance with Th-- general conditions of be conic- supplem. nta_ry general condifions, the drawings, specifications, amendments, anduo" a e_c-j^ !1xr $r ?.h tcc.. ,, i, 2ut e' `'i .?^b' ?, ?+.` i.y?..r. r? ? ? , r ,G....? •.c..i..ia _ `?O razed Gi : lu' Ml, dv^C` slliieiJtS, SIgn..C t','ie parties thereto or identified b, the architect or ov4ver's authorized agent, form a part of a contract between the contractor and the ovAner dated 813/2007 & hereby become a par of this contract, & herein referred to as the contract documents,.& shall be made available to f5e subcontractor upon his request.prior to and anytime subsequent to signing this subcontract. ARTICLE IT. The subcontractor & the contractor agree that the materials and equipment to be furnished & work to be performed are complete as required and in strict accordance A th plans, specifications, amendments, addenda, etc. & as follows: A. APPLICABLE SECTIONS OF DIVISION I - GENERAL REQUIREMENTS. B. See Attachment #J. SPECIAL REQUIREMENTS: A. Submit 2 insurance certificates to this office as soon as possible. Certificates must be submitted prior to cormnencing lk'ith ar work and have LOBAR ASSOCIATES, N:.. named as additionally insured on a primary and noncontributory' basis. ?SLr3C0NTRACT contil",UeC(c7.10290cs19,- B. All correspondence concerning this :project is to be forwarded to LOBAR ASSOCIATES, INC. C. Field measurements and verification are the responsibility of this subcontractor. Review of site and foundation conditions is a requirement for this contract. D. Material safety data sheets are a requirement for this project and must be submitted within fourteen (] 4) days of the subcontract date and prior to materials arriving on the job sibe. E_ Submission of Operation & Maintenance manuals/warranties to be made with initial submissions. F. This is formal notification that development and enforcement of all OSHA, safety, and MSDS requirements on this project is the sole responsibility of Black Landscape Cont,Inc. including verified safety conditions of other trades. It is also the responsibility of your personnel to immediately correct any safety violations observed by our project superintendentlforeman, Pincin; Barry R; on the project. Any fines issued to LOBAR ASSOCIATES, INC. as a result of firm's negligence or nor.-compliance will be the responsibility of your firm. This subcontractor shall indemnit, and save the contractor harmless in connection therewith from any and all damage including attorney's fees, cost of corrective action, fines, etc. G. This project has a firm completion date of 12/15/2008 with no time extensions permitted. All materials and work schedules must be coordinated very closely with our project superintendent/foreman at the site to meet the required completion date. Day to day schedule adjustments by this subcontractor are a requirement to accommodate various project intangibles (weather, etc.) to maintain the final completion date. Multiple shifts and overtime are a requirement of this project as necessary to meet schedule requirements and/or LOBAR ASSOCIATES, IN C' superintendent/foreman's instructions. H. Daily removal R disposal of related debris off site. 1. Provide sufficient manpower for scheduling, receiving, unloading, & distribution of all material deliveries for this contract J. All layout & coordination costs associated with this subcontract are a subcontract requirement. K. All subcontractors must participate in a !-hour weekly job site cleanup each Friday. L. No invoices received by fax will be accepted. All invoicing must be submitted in hard copy v?a mail or hand carry. M. Subcontractor agrees to indemnify and hold harmless the Owner and/or the Contractor and their agents and employees, from and against any and all demands, claims, suits, causes of action damages, losses, penalties; and/or expenses, including attorneys fees, arising out of or resulting from subcontractors performance of the work required by the subcontract, regardless of whether such demand, claim, suit; cause of action, loss, penalty. or expense is incident to or arises out of conditions or omissions permitted or-acts performed by any indemnitee. The Subcontractor agrees to assume the entire responsibility and liability for all damages or injury to all persons, and to all property, arising out of or in any manner connected with the execution of the Work under this Subcontract and to the f-uliest extent permitted by law. the Subcontractor shall defend and indemnity the Contractor froin all such claifns including without limitation claims for which the Contractor may be or may be claimed to be liable by reason of its own independent negligence. The Subcontractor agrees.to assume its entire responsibility and liability for all damages or injury to all persons, whether its employees or otherwise, and to all property arising out of or in any manner connected with the execution of the Work under this Subcontract Specifically, Subcontractor also agrees to indemnify Contractor from liability for Contractor's own negligence which results in harm to Subcontractor's employees. The Subcontractors obligation under this section shall not be limited in any way, by any limitation on the amount or type of damages compensation or benefits payable by or for the Subcontractor under worker's or worlonen's compensation acts; disability benefit acts or other employee benefit acts. The Subcontractor shall defend and indemnity the Contractor from all such claims, including without limitation, claims for which the Contractor may be or may be claimed to be liable in whole or in part, and legal fees and disbursements paid or incurred to defend any such claims, as well as legal fees paid or incurred -in connection with enforcing- the provisions of this section. The Subcontractor further agrees to obtain, maintain; and pay for such general liability insurance coverage as will insure the provisions of this section and other contractual obligations. N. AlI materials/equipment/systems are to be installed in a manner that provides proper protection against adverse conditions created by excessive moisture. ABy moisture air quality related issues due to the performance under this contract will be the complete responsibility of this vendor- Proper coordination of equipment/materials with design intent is required. 0. Synthetic stucco or exterior insulation and finish system (E.I.F.S-) subcontractors shall bear the frill responsibility, for providing ,JBC0Af7R4CT continUed 071102900st9 the proper insurance coverage and warrann for..the project as stipulated in this. subcontract agreement. P. If Subcontractor fails to comply with Contractors directions or project reguirernents. Contractor reserves the right to terminate Subcontractor upon f6m. -eight (48) hours written, notice. 0. Your iron agrees to perform the above work as required for the sum of EIGHT THOUSAND TVVO HUNDRED AND XX / 100 S (8 X00.00)_ The above-specified project is to be completed in strict conformance m-rith all specifications and conditions relating to this agreement. In addition, the project is to be performed in compliance with OSHA regulations, local, state, and national building codes, and EEO regulations. Although the contractor has control over the quality of all work relating to this project, the subcontractor is an independent contractor in all respects- the subcontractor is responsfole for his employees, his subcontractors, materials,,equipment, and all applicable-taxes, benefits, and insurance. The subcontractor is responsible for coordinating his activity WW hi otr;; . aadts and-!Y bit tly cieasink tip ain surplus or ren-use, - hich w"as cy-&atod by 1315 `4VZork. Payment terms: Net 45 days, less 10?,o retainage, subject to architect-engineer/owner appTelval and receipt of payment by LOBAR ASSOCIATES, INC. No other cfiarges such as carrying charges, interest, taxes; etc. will be honored unless indicated otherurise or as agreed to by both parties in uTifing. Monthly payment applications to be submitted on LOBAR ASSOCIATES' application for payment form showing percent completed each month. LOBAR ASSOCIATES. INC. CONTRACTOR: . Stephen E. Diller, Sr VP?ldministration Black Landscape Cont., Inc. BST: e? (TITLE;: Date: /O' /-///o Date: ?' T Subcontract Attachment #1- 071102900s19 B. Subcontractor confirms by signature below that all of its personnel are legal, documented workers and not illegal aliens. Should Contractor or Owner be made aware of any workers on the project which are illegal in any manner whatsoever; Contractor and/or Owner may immediately terminate this subcontractor at their discretion and may suspend payments to subcontractor until the issue is clarified to Contractor and Owner's satisfaction. All costs incurred by Contractor and Owner, including but not limited to, costs of subcontract completion, legal fees, lost profitability, loss of client, delay costs, etc. will be the responsibility of this subcontractor. It is the Subcontractor's responsibility to comply with all Owner and Contractor policies and project rules for this project, including but not limited to parking, etc. and to notify its onsite persomel/vendors of these requirements. Subcontractor personnel/vendors in violation of Owner/Contractor policies and/or project rules will result-in immediate dismissal from. the project u-rithout warning. Smoking is not permitted on jobsite. LOBAR ASSOCIATES, INC. shall have the right to terminate this contract for convenience upon seven (7) days after written notice to Subcontractor. Contractor shall reimburse Subcontractor for documented and approved actual costs of amount of work performed, man hours expended, and materials acquired prior to the date of termination plus a maximum of five percent overhead and profit on the actual approved costs incurred. Subcontractor shall make every reasonable effort to minimize such termination charges and payment will be made by Contractor within sixty days after receipt of Subcontractors approved invoice s with all required documents it copies of invoices, z ;-m1re ordti, etc. substantiating the costs attached. A list of sub--z-'er subcontractors used and suppliers for your materials must be submitted. Waivers of liens are required with applications for payment prior to payment. C. Landscaping work complete as per plans and specifications including, but not limited to the following: 1. For complete installation of items 1, 4, and 5 see attachmeni A. 2. For complete installation of items 1, 4, and 5 as per Ivir. Finger and Dr. Grossman. r D. Deslgn'eluding all maintenance and warranties , t Cgt;i -ed b-,7 Dr. Grossman. 4. The design was negotiated and developed directly by Black Landscape and Allan Grossman r.. October 28, 2008 Attn: Barry Pincin 'F Lobar Associates 4 Barlo Circle P.O. Box 432 Dillsburg, Pa. 17019 Refer: Allan Grossman Offices Subject: Landscape Contract Attachment A 1.) Trees on land development Plan: • 10 Hawthorn Trees 2" caliper • 10 lap Tree Lilac 2" caliper (sub for Red Maple) • Tree stakes • Bark Mulch • Fertilizer • Labor i 2.) Providing top soil has been spread: • Final grade, Seed, Mulch,, including Rain Garden 3.) Mulching Beds and Islands as per plan: • using 2B washed Gravel 2" deep and Geo Textile tinder. 4.) Landscape using following material: • 6 Gracillimus Grass #3 • 25 Dwarf Nandina #3 • 32 Spirea Little Princess #3 • 11 Bayberry #3 • 7 Viburnum aTinte ur #3 10 Deutzia Nflko #3 • 3 Pink Velour Crape Myrtle 4-5' • 28 Liriope 4" pot • 30 Day Lilly 91 Total $15 00 5.) Plus up to 10 Butterfly Bush in Islands. @ $22.50 each Very truly yours, M. Leon Finger Black Landscape Contracting, Inc. 6p-- i `r" j--.s ?`.` r} _; ? 1 TP' 21,'9 NOV -2 PH 2: 3Z CL' ;l, Cohen Seglias Pallas Greenhall & Furman, PC Steven M. Williams, PA I.D. # 62051 swilliams@cohenseglias.com 240 N. Third Street, 7`h Floor Harrisburg, PA 17101 Attorneys for Defendant BLACK LANDSCAPE IN THE COURT OF COMMON PLEAS CONTRACTING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : No. 09-6772 Civil Term LOBAR ASSOCIATES, INC., Defendant JURY TRIAL DEMANDED CIVL ACTION -LAW NOTICE TO PLEAD To: Plaintiff, Black Landscape Contracting, Inc., c/o Gerald S. Gaetano, Esquire, Whitney & Bogris, LLP, 401 Washington Avenue, 12`h Floor, Towson, MD 21204 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Cohen Seglias & Furman, PC Date: I I A 1L)q By: Steven M. Williams, PA I.D. #62051 240 North Third Street, 7th Floor Harrisburg, PA 17101 (717) 234-5530 Attorneys for Defendant BLACK LANDSCAPE CONTRACTING, INC., Plaintiff V. LOBAR ASSOCIATES, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 09-6772 Civil Term JURY TRIAL DEMANDED CIVL ACTION -LAW DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT PURSUANT TO Pa.R.Civ.P. 1028(a)(1) and (6) AND NOW, comes Defendant, Lobar Associates, Inc. (hereinafter referred to as "Lobar") by and through its attorneys, Cohen Seglias Pallas Greenhall & Furman, PC, and files this Preliminary Objections to Plaintiff's Complaint Pursuant to Pa.R.Civ.P. 1028(a)(1) and (6), stating the following: Plaintiff filed its Complaint in this case on November 2, 2009. 2. In its Complaint, Plaintiff alleges claims for breach of contract, unjust enrichment/implied contract and violations of the Contractor and Subcontractor Payment Act, all arising out of work Plaintiff alleges to have completed at Lobar's request ("Plaintiff's Work") under a certain Subcontract Agreement between Contractor & Subcontractor that the parties entered into on or about November 24, 2008 (the "Subcontract") regarding a construction project that Lobar had contracted to complete for Allan and Annette Grossman ("Owners"). A true and correct copy of the Subcontract is attached hereto as Exhibit A and is incorporated herein by reference. 3. Article I of the Subcontract states: [Plaintiff] agrees to furnish all material and perform all work as described in article ii hereof for: Hsbrg Foot&Ankl Grossmn PA [sic] for [Lobar] in accordance with this agreement, the agreement between the owner and [Lobar] .& [sic] and in accordance with the general conditions of the contract, supplementary general conditions, the drawings, specifications, amendments, and/or addenda prepared by , [sic] hereinafter called the architect or owner's authorized agent, all of which documents, signed by the parties thereto or identified by the architect or owner's authorized agent, form a part of a contract between [Lobar] and the owner dated 8/3/07 & hereby become a part of this contract & herein referred to as the contract documents . . . . 4. On or about July 9, 2007, Lobar and Owners entered into a Standard Form of Agreement Between Owner and Design-Builder (the "Prime Contract"). Relevant portions of the Prime Contract are attached hereto as Exhibit B and are incorporated herein by reference. The Prime Contract is the "agreement between the owner and [Lobar]" that is referenced in Article I of the Subcontract. 6. In accordance with Article I of the Subcontract, the provisions of the Prime Contract are incorporated into and made a part of the Subcontract. 7. Section 6.2 of the Prime Contract states, in pertinent part: "If the parties do not resolve their dispute through mediation pursuant to Section A.4.3 of Exhibit A, Terms and Conditions, the method of binding dispute resolution shall be the following:. . . [ X ] Arbitration pursuant to Section AAA of Exhibit A, Terms and Conditions." Section 6.3.1 of the Prime Contract states: "If Arbitration is selected by the parties as the method of binding dispute resolution, then any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to arbitration as provided in Section AAA of Exhibit A, Terms and Conditions." 2 9. Section A.4.3.1 of Exhibit A to the Prime Contract states, in pertinent part: "Any Claim arising out of or related to the [Prime Contract] . . . shall . . . be subject to mediation as a condition precedent to arbitration . . . ." 10. Section A.4.4.1 of Exhibit A to the Prime Contract states, in pertinent part: "Claims . . . which have not been resolved by mediation but which are subject to arbitration pursuant to Sections 6.2 and 6.3 of the [Prime] Agreement or elsewhere in the Design-Build Documents, shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect at the time of the arbitration." 11. As a consequence of the foregoing provisions of the Subcontract and Prime Contract, Plaintiff is obligated to first mediate the claims it has raised in this case, and, if mediation fails to resolve the claims, arbitrate the claims. 12. The mediation/arbitration process set forth in the Prime Contract is the exclusive remedy available for the determination of Plaintiff's claims. 13. Pa.R.Civ.P. 1028(a) states, in pertinent part: Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: (1) lack of jurisdiction over the subject matter of the action . . .; (6) pendency of a prior action or agreement for alternative dispute resolution; 14. The mediation/arbitration process set forth in the Prime Contract constitutes alternative dispute resolution, as contemplated by Pa.R.Civ.P. 1028(a)(6), to which Plaintiff is bound for the resolution of its claims against Defendant. 3 15. As a consequence of the required mediation/arbitration process set forth in the Prime Contract, this Court lacks jurisdiction over the subject matter of this action. 16. As a consequence, Plaintiff s Complaint was improvidently filed and this Court should dismiss Plaintiff s Complaint with prejudice. WHEREFORE, Defendant respectfully requests that this Honorable Court sustain its Preliminary Objections, dismiss Plaintiff s Complaint with prejudice, and grant such other relief as this Court deems just and appropriate. Date: 1 112310 Respectfully submitted, Cohen Seglias Pallas GreenhaWK Furman, PC By: Steven M. Williams, PA I.D. #62051 240 North Third Street, 7t' Floor Harrisburg, PA 17101 (717) 234-5530 Attorneys for Defendant 4 M ASSOCIATES SUBCONTRACT AGREEMENT BETWEEN CONTRACTOR & SUBCONTRACTOR Subcontract # 071102900s19 AGREEMENT MADE AS OF THE 24 DAY OF NOVEMBER IN THE YEAR OF TWO THOUSAND AND EIGHT BETWEEN THE CONTRACTOR: LOBAR ASSOCIATES, INC. 4 BARLO CIRCLE P.O. 432 DILLSBURG, PA 17019-0432 AND THE SUBCONTRACTOR : Black Landscape Cont., Inc. 717-697-4439 1360 East Lisburn Road Mechanicsburg, PA 17055 VVTTNESSETH, THAT THE SUBCONTRACTOR AND CONTRACTOR FOR THE. CONSIDERATION HEREINAFTER NAMED AGREE AS FOLLOWS: ARTICLE 1. The subcontractor agrees to furnish all material and perform all work as described in article ii hereof for: Iisbrg Fuot&Ankl Grossmn PA For LOBAR ASSOCIATES, INC. in accordance with this agreement, the agreement between the owner & contractor. & in accordance with the general conditions of the contract, supplementary general conditions, the drawings, specifications, amendments, and/or addenda prepared by , hereinafter called the architect.or owner's authorized agent, all of which documents; signed by the parties thereto or identified by the architect or owner's authorized agent, form a part of a contract between the contractor and the owner dated 8512007 & hereby become a part of this contract g herein referred to as the contract documents. & shall be made available to the subcontractor upon his request prior to and an)1ime subsequent to signing this subcontract. ARTICLE 11. The subcontractor & the contractor agree that the materials and equipment to be furnished & work to-be performed are complete as required and in strict accordance with plans. specifications, amendments, addenda. etc. & as follows: A. APPLICABLE SECTIONS OF DIVISION 1 -GENERAL REQUIREMENTS. B. See Attachment #I. SPECIAL REQUIREMENTS: A. Submit 2 insurance certificates to this office as soon as possible. Certificates must be submitted prior to commencing with am wort; and have LOBAR ASSOCIATES. INC. named as additionall.\- insured on a primary and noncontributorv basis. Page 'i of 3 SUBCONTRACT continuedA71102900st9 B. All con-espondence concerning this project is to be forwarded to LOBAR ASSOCIATES. INC. C. Field measurements and verification are the responsibility of this subcontractor. Review of site and foundation conditions is a requirement for this contract. D. Material safet\ data sheets are a requirement for this proiect and must be submitted within fourteen (14) days of the subcontract date and prior to materials arriving on the job site. E. Submission of Operation & Maintenance manualsiwarranties to he made with initial submissions. F. This k formal notification that development and enforcement of all OSHA, safety. and MSDS requirements on this project is the sole responsibilit of Black Landscape Cont., Inc, including verified safety conditions of other trades. It is also the responsibility of Your personnel to immediately correct any safety violations observed by our project superintendent/foreman. Pincin: Barry R.. on the proiect. Any fines issued to LOBAR ASSOCIATES, INC. as a result of firm's negligence or iron-compliance will be the responsibility of your firm. This subcontractor shall indemnify and save the contactor harmless in connection therewith from any and all damaae includincy attorney's fees. cost of corrective action. fines, etc. G. This project has a fiirn completion date of 12/15/3008 with no time extensions penmined. All materials and work schedules trust be coordinated ven• closely with our project superintendentiforeman at the site to meet the required completion date. Day to day schedule adjustments by this subcontractor are a requirement to accommodate various project intangibles (weather. etc.) to maintain the final completion date. Multiple shifts and overtime are a requirement of this proiect as necessary to meet schedule requirements and/or LOBAR ASSOCIATES. INC' superintendentiforeman's instructions. H. Dail: removal & disposal of related debris off site. 1. Provide sufficient manpower for scheduling. receiving, unloading, 8, distribution of all material deliveries for this contract. J. All layout & coordination costs associated with this subcontract are a subcontract requirement. K. All subcontractors must participate in a 1-hour weekly.job site cleanup each Friday. L. No invoices received by fax will be accepted. All invoicing; trust be submitted in hard copy via trail or hand carry. M. Subcontractor agrees to indemnify and hold harrttless the Owner and/or the Contractor and their agents and employees. from and against am• and all demands. claims, suits, causes of action; damages. losses, penalties, andlor expenses, including attorneys fees. arising out of or resulting from subcontractors performance of the work required by the subcontract, regardless of whether such demand, claim. suit, cause of action, loss, penalty, or expense is incident'to or arises out of conditions or omissions permitted or acts performed by any indemnitee. The Subcontractor agrees to assume the entire responsibility? and liability for all damages or injut•y to all persons, and to all property: arising out of or in any manner connected with the execution of the Work under this Subcontract and to the fullest extent permitted by law, the Subcontractor shall defend and indemnify the Contractor from all such claims includin-'a without limitation claims for which the Contractor may be or may be claimed to be liable by reason of its own independent negligence. The Subcontractor agrees to assume its entire responsibility and liability for all damages or injury to all persons, whether its employees or otherwise. and to all property arising out of or in any manner connected with the execution of the Work under this Subcontract. Specifically, Subcontractor also agrees to indemnify Contractor fi•om liability for Contractor's own negligence which results in harm to Subcontractor's employees. The Subcontractor's obligation under this section shall not be limited in any way by any limitation on the arnount or type of damages compensation or benefits payable by or for the Subcontractor under worker's or workmen's compensation acts. disability benefit acts or other employee benefit acts. The Subcontractor shall defend and ittdemni' the Contractor fi•om all such claims. includina without limitation. claims for which the Contractor may be or may be claimed to be' liable in whole or in part. and legal fees and disbursements paid or incurred to defend any such claims. as well as legal fees paid or incurred in connection with enforcin;_ the provisions of this section. The Subcontractor further agrees to obtain. maintain. and pay for such «eneral liabilin• insurance coverage as will insure the provisions of this section and other contractual obligations. N. All tnaterialsiequirmentisystems are to he installed in a manner that provides proper protection against adverse conditions created by excessive moisture. Any moisture: air quality related issues due to the performance under this contract will be the complete responsibility of this vendor. Proper coordination of equipmentimatetials with design intent is required. 0. Synthetic stucco or exterior insulation and finish system (E.I.F.S.) subcontractors shall bear the full responsibility for providing Page 2 of 3 SUBCONTRACT continued-071102900s 19 the proper insurance coverage and warrant, for the project as stipulated in this subcontract agreement. P. If Subcontractor fails to comply with Contractor's directions or project requirements. Contractor reserves the right to tenninate Subcontractor upon fom?-eight (48) hours written notice. 0. Your firm agrees to perform the above work as required for the suns of EIGHT THOUSAND TWO HUNDRED AND XX / 100 S (8,200.00). The above-specified project is to be completed in strict conformance with all specifications and conditions relating to this aereement. In addition, the project is to be performed in compliance with OSHA regulations, local, state, and national building codes, and EEO regulations. A.Ithouglt the contractor has control over the quality of all work relating to this project, the subcontractor is an independent contractor in all respects; the subcontractor is responsible for his employees, his subcontractors, materials. equipment, and all applicable taxes, benefits, and insurance. The subcontractor is responsible for coordinating his activity with other trades and promptly cleaning up any surplus or refuse, which was created by his work. Payment terns: Net 45 days, less 10% retainage, subject to architect-engineer/owner approval and receipt of payment by LOBAR ASSOCIATES, INC. No other charges such as carrying charges, interest, taxes. etc. will be honored unless indicated otherwise or as agreed to by both parties in writing. Monthly payment applications to be submitted on LOBAR ASSOCIATES' application for payment form showing percent completed each month. LOBAR ASSOCIATES, INC. Black Landscape Cont., Inc. CONTRACTOR: Stephen E. Diller, Sr VP Administration Date: CONTRACTOR: BY 6,6-- ?Iar?(TITLE): Date: P ` C)ff Page 3 of 3 Subcontract Attachment #1 - 07I102900sI9 B. Subcontractor confinns by signature below that all of its personnel. are legal. documented workers and not illegal aliens. Should Contractor or Owner be made aware of any workers on the project which are illegal in any manner whatsoever. Contractor and/or Owner may immediately terminate this subcontractor at their discretion and may suspend payments to subcontractor until the issue is clarified to Contractor and Owner's satisfaction. All costs incurred by Contractor and Owner. including but not limited to. costs of subcontract completion, legal fees, lost profitability, loss of client. delay costs, etc. will be the responsibility of this subcontractor. It is the Subcontractor's responsibility to comply with all Owner and Contractor policies and project rules for this project, including but not limited to parking, etc. and to notify its onsite personnel/vendors of these requirements. Subcontractor personnel/vendors in violation of Owner/Contractor policies and/or project rules will result in immediate dismissal from the project without warning. Smoking is not permitted on jobsite. LOBAR ASSOCIATES, INC. shall have the right to terminate this contract for convenience upon seven (7) days after written notice to Subcontractor. Contractor shall reimburse Subcontractor for documented and approved actual costs of amount of work performed. man hours expended. and materials acquired prior to the date of termination plus a maximum of five percent overhead and profit on the actual approved costs incurred, Subcontractor shall snake every reasonable effort ta minimize such tenmination charges and payment will be made by Contractor within sixty days after receipt of Subcontractor's approved invoice s with all required documents ie copies of invoices, payroll records, etc, substantiating the costs attached. A list of sub-tier subcontractors used and suppliers for your materials must be submitted. Waivers of liens are required with applications for payment prior to payment. C. Landscaping work complete as per plans and specifications including, but not limited to the following: 1. For complete installation of items 1, 4. and 5 see attachment A. 2. For complete installation of items 1; 4, and 5 as per Mr. Finger and Dr. Grossman. ). Design including all maintenance and warranties required by Dr. Grossman. 4. The design was negotiated and developed directly by Black Landscape and Allan' Grossman. Attachment A : October 28, 2008 Attn: Barry Pincin Lobar Associates 4 Barlo Circle P.O. Box 432 Dillsbur,, Pa. 17019 Refer: Allan Grossman Offices . Subject: Landscape Contract 1.) Trees on land development Plan: • 10 Hawthorn Trees 2" caliper 10 Jap Tree Lilac 2" caliper (sub for Red Maple) • Tree stakes • Bark Mulch • Fertilizer • Labor 2.) Providing top soil has been spread: • Final grade, Seed, Mulch, including Rain Garden 3.) Mulching Beds and Islands as per plan: • Using 2B washed Gravel 2" deep ,* ?--? and Geo Textile under. 4.) Landscape using following material: • 6 Gracillimus Grass #3 25 Dwarf Nandina #3 • 32 Spirea Little Princess #3 • 11 Bayberry #3 • 7 Viburnum Winterthur #3 • 10 Deutzia Nikko #3 • 3 Pink Velour Crape Myrtle 4-5' • 28 Liriope 4" pot • 30 Day Lilly #1 Total $15 0.0 5.) Plus up to 10 Butterfly Bush in Islands. @ $22.50 each Very truly yours, M. Leon Finger Black Landscape Contracting, Inc. ? ill T 77?-?? , Document A??'??- 2004 Standard Form of Agreement Between Owner and Design-Builder AGREEMENT made as of the 9th day of July (In words, Indicate day, month and year) BETWEEN the Owner: (Name, address and other information) Allan B. Grossman 3714 Leyland Drive Mechanicsburg, PA 17050 and the Design-Buildcr. (Name, address and other information) LOBAR ASSOCIATES, INC. 4 Bade Circle, P.Q. Box 432 DRlsburg, PA 17019-0432 (717) 432-3429 For the following Project: (Name, location and detailed description) New 13,730 SF Medical Facility Haezisbarg Foot & Ankle Center Harrisburg, PA in the year of 2007 ADDITIONS AND DELETIONS: The author of this document has added Information needed for its completion. The author may also have revised the text of the original AIA standard form. An ArlaGtions and Deletions Raport that notes added information as well as revisions to the standard form text Is available from the author and should be reviewed. A vertical line In the left margin of this document Indicates where the author has added necessary Information and where the author has added to or deleted from the original AIA text. this document has Important legal consequences. Consultation with an attorney Is encouraged with respect to Is completion or modification. Consultation with an attorney Is also encouraged with respect to professional licensing requirements In the jurisdiction where the Project is located. The Owner and Design-Builder agree as follows. knit AlA Document A141 *" - 2004. Copyright 02004 by The Amaricun Inslitute of Architects. Aft rights reserved. WARNING: This AIA* Document Is protected by U.S. Copyright Law and International Treatise. Unauthorized reproduction or distribution of this AIA* Document, or any portion or k, mey result In severe civil and criminal penattles, and will be prosecuted to the mKxlmum extent possible under the law. This document was produced L.. au ..-Of..... .e 44.12.49 nr, mr??nnn7 ?mrfa.nrAAr Nn f nn76ts= t w MA PPnir^c nn Q/"An7 Anti 1C MI fnrrAcalA. material supplier waiver of liens prior to issuance of monthly payments. Copies of all monthly waiver of ti .ns %viII be provided to the Owner at dic end of the project including final waivcr of liens born Contractor and all subcontractors and material suppliers. § 5.1.7 Except with the Owner's prior approval, the Design-Builder shall not make advance payments to suppliers for materials orequipment which have not been delivered and stored at the site. (Paragraphs deleted) § 5.4 PROGRESS PAYMENTS - COST OF THE WORK PLUS A FEE WITH A GUARANTED MAXIMUM PRICE § 5.4.1 See Draw Schedule - Article 5.1.2 § 5.4.2 Subject to other provisions of the Design-Build Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage of completion of each portion of the Work by the share of the Guaranteed. Maximum Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section A.7.3.8 of Exhibit A. Terms and Conditions; .2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stoned at the site for subsequent incorporation in the Work. or if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing: .3 Add the Design-Builder's Fee, less retainage of See Paragraph 5.1.2 Draw Schedule ( % ). The Design-Builder's Fee shall be computed upon the Cost of the Work described in the two preceding sections at the rate stated in Section 4.4.2 or, if the Design-Builders Fee is stated as a fixed sum in that section. shall be an amount that bears the same ratio to that fixed-sum fee as the Cost of the Work in the two preceding sections bears to a reasonable estimate of the probable Cost of the Work upon its completion; .4 Subtract the aggregate of previous payments made by the Owner; .5 Subtract the shortfall, if any, indicated by the Design-Builder in the documentation required by Section 5.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's accountants in such documentation; and .6 Subtract amonncs. if any, for which the Owner has withheld or nullified a Certificate for Payment as provided in Section A.9.5 of Exhibit A. Tams and Conditions. § 5.4.3 Except with the Owner's prior approval, payments for the Work, other than for services provided by design professionals and other consultants retained directly by the Design-Builder, shall be subject to retainage of not less than Zero ( 0 9o' ). The Owner and Design-Builder shall agree on a mutually acceptable procedure for review and approval of payments and retention for Contractors. § 5.5 FINAL PAYMENT § 5.5.1 Final payment. constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Design-Builder upon completion of the monetized punchlist attached to the ALA Substantial Completion Certificate the Design-Builder has fully performed the Design-Build Contract, including the requirements in Section A.9.10 of ExWbit A, Terms and Conditions, except for the Design-Builder's responsibility to correct non-conforming Work discovered after final payment or to satisfy other requirements, if any, which extend beyond final payment ARTICLE 6 DISPUTE RESOLUTION § &I The parties appoint the following individual to serve as a Neutral pursuant to Section A.4.2 of Exhibit A, Terms and Conditions: (Inseri the name, address and other information of the individual to serve as a Neutral If the parties do not select a Neutral; then the provisions of Section A.4.2.2 of Exhibit A, Terms and Conditions, shall apply.) N/A § 6.2 If the parties do not resolve their dispute through mediation pursuant to Section A.4.3 of Exhibit A. Terms and Conditions, the method of binding dispute resolution shall be the following: A!A tbmanent A141ri -2004. Copyright 02004 by The American Institute of Arch1tects. All rights reserved. WARNING: This AIAs Document Is Intt protected by U.B. Copyright Law and InternationalTreacles. Unauthorized reproduction or distribution of this AIAs Document, or any portion of It, may result in severe civil and criminal pensitles, and will be prosecuted to the maximum extent possible under the law. This document was produced (If the parties do not select a method of binding dispute resolution, then the weihod of binding dispute resolution shall be by litigation in a court of competent jurisdiction.) (Check one.) [ X ] Arbitration pursuant to Section AAA of Exhibit A. Terns and Conditions ( I Litigation in a court of competent jurisdiction [ j Other (Specify) § 63 ARBITRATION § 6.3.1 If Arbitration is selected by the parties as the method of binding dispute resolution, then any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to arbitration as provided in Section A.4.4 of Exlu'bit A, Terms and Conditions. ARTICLE 7 MISCELLANEOUS PROVISIONS § 7.1 The Architect, other design professionals and consultants engaged by the Design-Builder shall be persons or entities duly licensed to practice their professions in the jurisdiction where the project is located and are listed as follows: (Insert name, address, license number, relationship to Design-Builder and other information.) Name and Address License Number Relationship to Other information Design-Builder Jay Blackwell-By Architect Design, Conraltarmts, Inc Curt S. Bradley, PE Straetaral Engineer § 71 Consultants, if any, engaged directly by the Owner, their professions and responsibilities are listed below: (Insert name, address, license number, if applicable, and responsibilities to Owner and other infornation_) Name and Address License Number Responsibilities Other Information to Owner Owner Contracted 04 Engineer Review & Coordination Clvil Engineer Only By LOBAR § 7.3 Separate contractors, if any, engaged directly by the Owner, their trades and responsibilities are listed below: (Insert name, address, license number, ifapplicable, responsibilities to Owner and other information.) Name and Address License Number Responsibilities Other Information to Owner § 7.4 The Owner's Designated Representative is: (Insert name, address and other information.) Dr. Allan Grossman § 7.4.1 The Owner's Designated Representative identified above shall be authorized to act on the Owner's behalf with respect to the Project. AIA Document AMrs -20W_ Copyright 02004 by The American Institute of Architects. AA rights reserved. WARNING: This AIA° Dcument Is Inlt protected by U.S. copyright Law and International Treaties, Unauthorized reproduction or distribution of this A10 Document or any portion of it, 7 may result In severe civil and criminal penalties, and wlu be prosecuted to the maximum extent possible under the law. This document was produced § 8.1.6 The Addenda, if any, are as I-ollows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) Title of the Addenda exhibit: NIA (Table deleted) § 8.1.7 Exhibit A. Terms and Conditions. (If the parties agree to substitute terms and conditions other than those contained in AIA Document A 141.2004, Erhihit A, Terms and Conditions, then identify such terms and conditions and attach to this Agreement as Exhibit A.) See Attached Exhibit "A" § 8,1.8 Exhibit B, Determination of the Cost of the Work, if applicable. (If the parties agree to substitute a method to determine the cost of the Work other than that contained in AIA Document A141-2004, Exhibit B, Determination of the Cost of the Work then identify such other method to determine the cost of the Work and attach to this Agreement as Exhibit B. If the Contract Stun is a Stipulated Sum, then Exhibir B is not applicable.) § 8.1.9 Exhibit C, Insurance and Bonds, if applicable. (Complete AIA Document A141-2004, Exhibit C, Insurance and Bonds or indicate "not applicable. Not Included In Proposal - Can Be Provided At An Additional Cost If Requested. Add For Construction Risk Insurance if required by the Owner is $980.00. Add For Payment & Performance Bonds if required by the Owner ig $23,030.00. § 8.1.10 Other documents, if any, forming part of the Design-Build Documents are as follows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) Title of the Other Documents exhibit: Exhibit C - Base Labor & Equipment Rates, Exhibit D- Drawing A141 Dated 3/29/07 & Evans Final Development Plan Sheet i of 1 Printed 617/07'; 07MBAW-dwg 11:43:02 AM, MWaketield. (When Design Is Finalized, Final Drawing List For Construction Will Be Added To The Conhud). 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 Dcsign-Builder and one to the Owner. ER (S' t re) Dr. Allan Grossman Date: (Printed name and title) LOBAR ASSOCIATES, INC. ??? ---- DESION-BUILDER (Signature) Lee E. Eichelberger, !President Date: 1?7 (Printed name and title) AIA Document A141 TM -2004. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA' Document Is Init. proleclad by U.S. Copyright Law and International Trestles. Unauthorized reproduction or distribution of this AIA° Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced l`IV =Document A141Tu - 2404 Exhibit A Terms and Conditions for the following PROJECT: (Name and location: or address) New 13,130 SF Medical Facility Harrisburg Frn?t & Ankle Center Harrisburg, PA THE OWNER: (Nano and location) A Ilan B. Grussman 3714 Leyland Drive Mechanicsburg, PA 170SO THE DESIGN-BUILDER: (Name and location) LOBAR ASSOCIATES, INC. 4 Barlo Circle, P.O. Box 432 Dillsburg, PA 17019-0432 ADDITIONS AND OELEnm: The author of this document has added information needn d for its completion. The athor may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text Is available from the author and should tQ reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. Thfs document has important legal consequences. Consultation wilh an attorney is encouraged with respect to Its completion or modification. Consultation with an attorney is also encouraged with respect to professional Ilcensing requirements in the Jurisdiction where the Project is located. loss or e>ipense is caucui in part by a party indemnified hereunder. Such obligation shall nu( be enns(rucd to ne.gate, ahridge or reduce other rivfits or obligations of indeannity than would otherwise erase as to a party or person desctihed in this Section A.3.17. § A.3.17.2 in claims against any person or earthy indemnified under this Section A.3.17 by an entp)ovee of the Design-Builder, the Architect, a Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Section A.3.17.1 shall not be limited by a limitation un unotint or tylx- of damages, compensation or benefits payable by or for the Design-131.lildcr, tile Architect or a Contractor or a Subcon(ractor under wrorkcrs' compensation acts, disability benefit acts or other employee benefit acts. ARTICLE A.4 DISPUTE RESOLUTION § A.4.1 CLAIMS AND DISPUTES § A.4.1.1 Definitlon. A Claim is it demand or assertion by one of the parties seeking, as it matter of right, adjustment or interpretation of Design-Build Contract terms, payment of money, extension of time or outer relief with respect to (he terms of the Design-Build Contract. The term "C7aim' also includes other disputes and mattcrs in question between the Owner and Design-Buildcr arising out of or relating to the Design-Build Contract. Claims must be initiated by written notice. The responsihility to suhstantiats Claims chaff rest with the party making the Claim. § A.4.1.2 Time Limits on Claims. Clitims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days alter the claimant first rccogni7es the condition giving rise to the Claim. whichever is later. Claims must he initiated by written notice to the other party. § A.4.1.3 Continuing Performance. Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Section A.9.7.1 and Article A. 14, the Design-Builder shall proceed diligently with performance of the Design-Build Contract and the Owner shall continue to make payments in accordance with the Dcsign-Build Documents. § A.4.1.4 Claims for Concealed or unknown Conditions. If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Design- Build Documents or (2) unknown physical conditions of an unusual nature which differ materially from those ordinarily found to exist and generally recognized as inherent in constroction activities of the character provided for in the Design-Build Documents, then the observing party shall give notice to the other party promptly before conditions arc disturbed and in no event later than 21 days after first observance of the conditions. The Owner shall promptly investigate such conditions and, if they [lifter materially and cause an increase or decrease in the Design- Builder's cost of, or time required for, performance of any put of the Work, shall negotiate with the Design-Buildcr an equitable adjustment in the Contract Sum or Contract Time, ur both. If ilia Owner determines that the conditions at the site are not materially different from thasc indicated in the Design-Build Documents and that no change in the terms of the Design-Build Contract is justified, the Owner shall so notify the Design-Builder in writing, stating the reasons. Claims by the l7esign-Builder in opposition to such determination must be made within 21 days after ilia Owner has gi ven notice of the decision. If the conditions eneountcrml are materially different, the Contract Sum and Contract Time shall be equitably adjusted, but if the Owner and Design-Builder cannot agree on an adjustment in the Contract Sum or Contact Time. ilia adjustment shall procrcd pursuant to Scciinn A.4.2. § A.4.1.5 Claims for Additional Cost if the Design-Builder wishes to make Clairn for an increase in the Contract Sum, written notice as pro, idcd herein shall be given before proceeding to exectne the Work. Prior notice is not required for Chtinis relating to an emergency endangering life or property arising under Section A. 10.6. § A.4.1.6 If the Design-Buildcr belicvcs additional cost is involmd for reasons including but not limited to (1) an order by the Owner to stop the Wact %here the Design-Bui)der was not at fault, (2) it written order for the Work issued by the Owner, (3) failure of payment by the Owner, (4) termination of the Design-Build Contract by the Owner. (S) Owncr's suspension or (6) other reasonable grounds, Chaim shall be filed in accordance with this Section AA 1. § A.4.1.7 Claims for Additional Time g A.4.1.7.1 If the Design-Builder wishes to snake Claim fur an increase in the Contract Time, wriiten notice as provided herein shall be given. The I)rsign-Builder's Claim Oall include an estimate of (fie lime and its effect on the progress of the Work. In the case of a continuing delay, only one Claim is necessary. § A.4.1.7.2 If adverse weather conditions arc (he hasis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnorina I for the period of time, could riot have peen reasonably anticipated avid had an adverse effect on the scheduled construction. § A.4.1.8 injury or Damage to Person or Property. If either party to the Design-Build Contract suffers injury or danraoc to person or properly because of an acct or ontissioa of the other party or of others for whose acts such patty is legally responsible, written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. § A4.1.9 if unit prices are stated in the T)estgn-Build 1)ocurnents or subsequently agreed upon, and if quantities originally contemplated are matmially changed in a proposed Change Order or Construction Change Directive so that application of such trait prices to quantities of Work proposedl will cause substantial inequity to the. Owner or Design-Builder, the applicable unit prices shall be equitably adjusted. § A4.1.10 Claims for Consequential Damages. Design-Builder and Owner waive Claims against each other for consequential damages arising out of or relating to the Design-Build Contract. This mutual waiver includes: .1 damages incurred by the Owner rot rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and .2 damages incurred by the Design-Buildcr for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance w rith Article A.14. Nothing emitained in this Section A.4.1.10 shall be deemed to preclude an award of liquidated direct damages, when applicable, in accordance with the requirements of the Design-Build Documents. § A.4.1.11 If the enactment or revision of codes, laws or regulations or official interpretations which govern the Project cause an increase or decrease of cite Design-Builder's cost of, or time required for, performance of the Work, the Design-Builder shall be entitled to an equitable adjustment in Contract Surn or Contract Time. If the Owner and le-sign-Builder cannot agree upon an adjustment in the Contract Sum or Contract Time, the Design-Builder shall submit a Claim pursuant to Section AA 1. § A.4-2 RFSOLUr1ON OF CLAIMS AND DISPUTES § A.4.2.1 Decision by Neutral. If the parties have identified a Neutral in Section 6.1 of the Agreement or elsewhere in the Design-Build Documents, then Claims, excluding those arising under Sections A.10.3 through A.10.5, shall he referred initially to the Neuhsl for decision. An initial decision by the Neutral shall be required as a condition precedent to mediation of all Clairrrs between the Owner and Dcsig r-Builder arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Neutral with no decision having been rendered by the Neutral. Unless the Neutral and all affected parties: agree, the Neutral will not decide disputes between the Design-Builder and persons or entities other than the Owner. § A.4.2.2 Decision by Omer. If the parties have not identified a .Neutral in Section 6.1 of ilia Agreement or elsewhere in the Design-Build Documents then, except for Chase claims arising under Sections A.10.3 and A.10.5, the Owner shrill provide an initial decision. An initial decision by the Owner shall be required as a condition precedent to mediation of all Claims between the Owner and IX-sign-Builder nrising prior to the dare final payment is due, nr]Jess 30 days have passed niter the Claim has peen rcfcrrcd to the Owner with zm decision having been rendered by the Owner. § A.4.2.3 The initial decision pursuant. to Sections A.4.2.1 and A.4.2.2 shalf be in writing, shall state the reasons ihmnforac and shall notify the parties of any change in the Contract Sum or Contract Time or txrth. The initial decision shall be I inaI and binding on the parties bur subject. first to mediation under Section A.4.3 and !hereafter to such utherdispute resnluliun methods a.a provided in Section 6.2 of the Agwenient orcisewhe.re in the Design-Build Documents. § A.4.2.4 in the event of a Claim against the Design-Builder, the Owner miry, but is not obligated to, notify the surety, if any, of the natureand amount of the Clairn, If the Claim relates to a possibility of a Design•Iluilder'.c default, the Owner tnay, but is not obligated to, notify the surety and request the surety's assistance in resolving the controversy. § A.4.2.5 ifa Claim relates to or is the subject of a mechanic's lien, the party asserting such Claim may prneced in accordance with applicable law to comply with the lien notice or riling deadlines prior to initial resolution of the Claim. § A.4.3 MEDIATION § A.4.3.1 Any Claim arising out of or related to the Design-Build Contract, except those waived as provided for in Sections A.4.1.10. A.9.10.4 and .'1.9.10.5, shall, after initial decision of the Claim or 30 clays after submission of the Claim for initial decision, be subject to mediation as a condition precedent to arhitration or the institution of legal or equitable or other binding dispute resolution proceedings by either party. §•A.4.3.2 The parties shall endeavor to resolve their Claims by mediation which, unless the patties mutually agree otherwise, shall be in accordance with the Construction.rndustry Vfcdiation Rules of the American Arbitration Association currently in effect at the time of the mediation. Request for mediation shall be filed in writing with the other party to the Design-Build Contract and with the American Arbitration Association. The request may be made concurrently with the filing of a demand for arbitration or other binding dispute resolution proceedings but, in such event, tnediation shall proceed in advance thereof or of legal or equitable proceedings, which shall be stayed pending mediation fora period of 60 days from the date of filing, unless stayed for a longer period by agreement of the patties or court order. § A.4.3.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. § A.4A ARBITRATION § A.44.1 Claims, except those wai ved as provided For in Sections AA.1.10, A.9.164 and A.9.10.5, for which initial decisions have not become final and binding, and which have not been resolved by mediation but which are subject to arbitration pursuant to Sections 6.2 and 6.3 of the Apreeutent or elsewhere in the Design-Build Documents, shall be. decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect at the time of the arbitration. The demand for arbitration shall be filed in writing with the other party to the Design-Build Contract and with the American Arbitration Association. § A.4.4.2 A demand for arbitration may be made no earlier than concurrently with the filing of a request for mediation, but in no event shall it be made after the date when instinttion of legal or equitable proceedings based on such Claim would be barred by the applicable statutc of limitations as determined pursuant to Suction A. 13.6. § A.4.4.3 An arbitration pursuant to this Suction AAA may be joined with an arbitration involvinX common issues of law or fact belwecn the Owner or Design-Nuilder and any person or entity with whom the Owner or lksign-Builder has a contractual obligation to arbitrate disputes which does not prohibit consolidation or joinder. No other arbitration arising out of or relating to the Design-Build Contract shall include, by consolidation, joinder or in any other manner, an additional person or entity not a party to 1he Design-Build Contract or not a party to an agreement with the Owner or Design-Builder, except by written constant containing a specific reference to the Design-Build Contract signed by the Owner and Dasign-Builder and any other person or entities sought to he joined. Consent to arhitration involving an additional person or entity shall riot constitute consent to arbitration of any claim, dispute ur other matter in question riot described in the written consent or with a person or entity not named or described therein. The foregoing agiccmew to arbitrate and other agreements to arbitrate Faith an additional person or entity dtrlyconsented to by the parties to the ;Agreement shall be specifically enforcxable in accordance with applicable ---...__...r r .....:.... .....:c.rt.rhnn rherenf § A.4.4.4 Claims and Timely Assertfon of Claims. The party filing a notice of dervand for arbitration n mr assert in the demand all Claims then known to that party on which arbitration is permitted (o he demanded. § A.4.4.5 Judgment on Flnal Award. The award rendered by the arbitrator or arbitrators shall be final, aitd jttdgtrtent may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. ARTICLE A.5 AWARD OF CONTRACTS § A,5.1 Unless otherwise stated in the Design-Build Documents or the bidding or pmposal requirements, the Design- Builder. as Bonn as practicable after award of the Design-Build Contract, shall furnish in writing to the Owner the names of additional persons or entities not originally included in the Design-Builder's proposal or in substitution of a prerson or entity (including those who are to furnish design services or materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Owner will promptly reply to the Design- Builder in writing stating whether or not the Owner has reasonable objection to any such proposed additional person or entity. Failure of the Ownet• to reply promptly shall cortstittac notice of no reasonable objection. § A.52 The Design-Builder shall not contract with a proposed person or entity to whom which the Owner has made reasonable and timely objection. The Design-Builder Ahall not be required to contract with anyone to whom the Design-Builder has made reasonable objection. § A.5.3 If the Owner has reasonable objection to a person or entity proposed by the Design-Builder, the Design- Builder shall propose anodtor to whom the Owner has no reasonable objection. If the proposed but rejected additional person or entity was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute person's or entity's Work. flowever, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Design-Builder has acted promptly and responsively in submitting names as required. § A5.4 The Design 13ttildersiittll not change a person orentity previously selected if the Owner makes reasonable ohjccdcin to such substitute. § A.5.5 CONTINGENT ASSIGNMENT OF CONTRACTS § A5.5.1 Each agreement for a portion of the Work is assigned by the Design-Builder to the owner provided that: .1 assignment is effective only after termination of the Design-Build Contract by Ilie Owner for cause pursuant to Section A. 14.2 an([ only for those agreements which the Owner accepts by notifying the contractor in writing; and .2 assignment is subjtxt to the prior rights of the surety, if any, obligated under bond relating to the Design-Build Contract. § A5.52 Upon such assignment, if the Work has been suspended for more than 30 days, the Contractor's compensation shall be equitably adjusted for increases in cost resulting from the suspension. ARTICLE A.6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS § A.6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE. CONTRACTS § A 6.1.i The Owner reserves the right to W.rforrrr construction or operations related to the Froject with the Owner's own forces aru/ to award separate contracts in connection with other portions of the Project or other construction or operations on the site. The Design-Builder shall cooperate with the Owner and separate contractors whose work might interfere with the Design-builder's 1Vork. )f the Dcsign-Builder clairrts that delay or additional cost is involved because of such action by the Owner, the Design-13WIder shall make such Claim as provided in Section A.4.1 and Owner shall reimburse Contractor for all costs incurred. § A.6.1.2 The rerun 'separate contractor" shall mean any contractor retainul by the Owner pursuant to Section ,1.6.1.1. § A.6.1.3 The Owner shall provide for coordination of nccactivities of the Owner's own forces and of each separate contractor with the work of the Design-Brlilcter, who shall cooperate with them. The Design-Builder sh.cll participvle .,,ti h other sensrate contractors and the Owner in reviewing their construct inn schedules when directed to do so. t'he I have read the foregoing Preliminary Objections and hereby affirm and verify that it is true and correct to the best of my knowledge, information and belief. I verify that all of the statements made in the foregoing are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. Date: CERTIFICATE OF SERVICE I hereby certify that the foregoing was sent by first class mail, postage prepaid this day to the following: Gerald S. Gaetano, Esquire Whitney & Bogris, LLP 401 Washington Avenue, 12th Floor Towson, MD 21204 Attorneys for Plaintiff Date: 111'q3O Respectfully submitted, Cohen Seglias Pallas Greenhall & Furman PC By: A2;t - - Alison A. Zortman,? al Assistant 240 North Third Str et, 7th Floor Harrisburg, PA 17101 (717) 234-5530 Attorneys for Defendant R" I . P- "• OF TY + U 9 N? l,i is• 4 0 r ? Q't t ~ BLACK LANDSCAPE CONTRACTING, INC., PLAINTIFF V. LOBAR ASSOCIATES, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 09-6772 CIVIL TERM BEFORE OLER, J., GUIDO, J., AND MASLAND, J. ORDER OF COURT AND NOW, this ~.%~-~ day of June, 2010, defendant's preliminary objection, IS SUSTAINED. Plaintiff's complaint, IS DISMISSED. By the Court, .~ Gerald S. Gaetano Es uire q For Plaintiff ~eronica J. Finkelstein, Esquire For Defendant Albert H. Masland, J. :sal ~~~ ~ m~~ ~',': ; ~ ~ .. ~, • G~7 ~ ~ - f _ . . ~_ ~. ~::- ~~ ~./ BLACK LANDSCAPE CONTRACTING, INC., PLAINTIFF V. LOBAR ASSOCIATES, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 09-6772 CIVIL TERM BEFORE OLER, J., GUIDO, J., AND MASLAND, J. OPINION AND ORDER OF COURT Masland, J., June 25, 2010:-- Before the court is defendant Lobar Associates Inc.'s (Contractor) preliminary objection to the complaint filed against it by plaintiff, Black Landscaping Contracting, Inc. (Subcontractor) seeking payment due for landscaping services. Contractor objects to the complaint on the grounds that the parties are contractually obligated to resolve all disputes via arbitration. Subcontractor argues no arbitration agreement exists between the parties. Following argument en banc, we sustain Contractor's preliminary objection and dismiss Subcontractor's complaint. I. Background On July 9t", 2007, Contractor entered an agreement with Harrisburg Foot and Ankle Center (Owner) for the construction of a commercial property in Dauphin County. The relationship between Contractor and Owner was governed by a contract (prime contract) that included a provision requiring the parties to 09-6772 CIVIL TERM resolve disputes by arbitration rather than traditional litigation.' Subcontractor was not a signatory to the prime contract. Subsequently, Contractor entered into an agreement (subcontract) with Subcontractor for the completion of landscaping associated with Owner's construction project. The subcontract does not contain an express arbitration provision. However, the subcontract does include an incorporation provision that is the subject of the instant litigation. Contractor argues the incorporation provision in the subcontract binds Subcontractor to all terms of the prime contract, including the arbitration provision. In response, Subcontractor contends the incorporation provision is ambiguous and therefore does not bind it to the arbitration provision in the prime contract. Specifically, Subcontractor argues "unless the subcontract unmistakably incorporates the arbitration provision of the general contract ... the provisions at issue cannot be reasonably construed as binding [Subcontractor] to a prior agreement to arbitrate its claims." Pl.'s Br. at 4 (footnote omitted). Following briefing by the parties and argument en banc, we reach the following conclusions: (1) arbitration provisions may be incorporated by reference through general incorporation provisions; (2) the subcontract's incorporation provision is unambiguous; and (3) the instant dispute is within the 'See Def.'s Ex. 2. "If Arbitration is selected by the parties as the method of binding dispute resolution, then any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to arbitration ...." Prime Contract, § A.6.3.1 (emphasis added). -2- 09-6772 CIVIL TERM scope of the arbitration provision. Accordingly, we sustain Contractor's preliminary objection and dismiss Subcontractor's complaint. II. Existence of Agreement to Arbitrate A. General Principles At the outset we note our courts "strongly favor the settlement of disputes by arbitration." Langston v. National Media Corp., 596 A.2d 860, 864 (Pa. Super. 1991). Where the parties' agreement to arbitrate is sufficiently clear, we make all reasonable efforts to favor such agreements. DiLucente Corp. v. Pennsylvania Roofing Co., Inc., 655 A.2d 1035, 1038 (Pa. Super. 1995). If a valid arbitration agreement exists between the parties, and the dispute is within the scope of the agreement, then the parties must submit to arbitration. Messa v. State Farm lns. Co., 641 A.2d 1167, 1170 (Pa. Super. 1994). However, if a party can establish that it did not agree to arbitrate disputes it may be entitled to enjoin arbitration. Smith v. Cumberland Group, Ltd., 687 A.2d 1167, 1171 (Pa. Super. 1997). When a party to an agreement seeks to avoid proceeding to arbitration, we must determine whether a valid agreement to arbitrate exists between the parties and, if so, whether the dispute involved is within the scope of the arbitration provision. Midomo Co., Inc. v. Presbyterian Housing Development Co., 739 A.2d 180, 186-87 (Pa. Super. 1999). "[A]rbitration is a matter of contract and, as such, it is for the court to determine whether an express agreement between the parties to arbitrate exists." Id. at 187. -3- 09-6772 CIVIL TERM Here, it is undisputed Subcontractor was not a signatory to the prime contract between Contractor and Owner. As such, no express agreement to arbitrate exists between Contractor and Subcontractor. Nonetheless, Contractor asserts Subcontractor is bound by the arbitration provision in the prime contract by the incorporation provision in the subcontract. We agree. B. Incorporation by Reference "As a matter of contract law, incorporation by reference is generally effective to accomplish its intended purpose where ... the provision to which reference is made has a reasonably clear and ascertainable meaning." Bernotas v. Super Fresh Food Mkts., /nc., 816 A.2d 225, 231 (2002) (internal quotation marks omitted), rev'd on other grounds, 581 Pa. 12, 863 A.2d 478 (2004). In dicta, our courts have recognized incorporation by reference provisions in the context of arbitration. Integrated Project Servs. v. HMS Interiors, Inc., 931 A.2d 724, 734-36 (Pa. Super. 2007). However, Pennsylvania state courts have not squarely addressed the issue now before us. Restated for clarity, we now address whether, and under what circumstances, athird-party nonsignatory may be bound to an arbitration agreement on a theory of incorporation by reference. In Bernotas, our Supreme Court held a general incorporation clause will not incorporate indemnification provisions absent express and specific contract language to that effect because of the longstanding policy to construe indemnification provisions narrowly. Bernotas, 863 A.2d at 484. Subcontractor urges us to apply a similarly strict standard where, as here, we must determine -4- 09-6772 CIVIL TERM whether a subcontract's incorporation provision encompasses an arbitration provision. For the following reasons, we decline to do so. As previously stated, Pennsylvania state courts have yet to speak directly to the question now before us; however, the United States Court of Appeals for the Third Circuit recently addressed this issue in a comprehensive and well- reasoned opinion, the reasoning of which we now adopt. See Century /ndem. Co. v. Certain Underwriters at Lloyd's, London, 584 F.3d 513 (3d Cir. Pa. 2009) (interpreting substantive Pennsylvania law). Relevant here, the Third Circuit concluded there was no reason to apply the narrow interpretation associated with an indemnification agreement to the interpretation of an arbitration clause, "because such a clause is quite different from an indemnification clause." Id. at 534. As our Supreme Court stated, indemnification provisions "impose[] an `unusual' and `extraordinary' obligation ...." Bernotas, 581 Pa. at 21, 863 A.2d at 483. Arbitration agreements present no similar difficulties. On the contrary, "[p]ublic policy favors arbitration to settle disputes quickly, fairly, and economically." Smay v. E.R. Stuebner, Inc., 864 A.2d 1266, 1272 (Pa. Super. 2004). For these reasons, we agree with the Third Circuit and conclude "under Pennsylvania law, arbitration provisions, like other contractual provisions, may be incorporated by reference through general incorporation provisions." Century (ndem. Co. , 584 F.3d at 534. -5- 09-6772 CIVIL TERM C. Sufficiency of Subcontract's Incorporation Provision Based on the foregoing principles, we now turn to the incorporation provision itself. Subcontractor argues the incorporation provision is fatally ambiguous and in support proffers an alternative interpretation of the provision in which Subcontractor is not bound to the arbitration agreement in the prime contract. Specifically, Subcontractor argues the provision only incorporates prime contract documents for the "agreed purpose of [Subcontractor's] furnishing of all materials and performance of all work ... in accordance therewith." Pl.'s Br. at 7. Subcontractor further notes Contractor drafted the subcontract and thus all ambiguities must be interpreted against that party. "A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense." Insurance Adjustment Bureau v. Allstate, 588 Pa. 470, 481, 905 A.2d 462, 468- 69 (2006). Notably, "[t]he 'reasonably' qualifier is important: there is no ambiguity if one of the two proffered meanings is unreasonable." Trizechahn Gateway LLC v. Titus, 601 Pa. 637, 652-653, 976 A.2d 474, 483 (Pa. 2009). We will not "distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity." Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 606, 735 A.2d 100, 106 (1999). Further, "[a)II parts of the contract should be interpreted together, with the goal of giving effect to each of its provisions." Midomo, 739 A.2d at 191. -6- 09-6772 CIVIL TERM Here, we conclude the incorporation provision, though inartfully drafted, is unambiguous. It reads, in relevant part: ARTICLE I. The [S]ubcontractor agrees to furnish all material and perform all work as described in article ii hereof for: Hsbrq Foot&Ankl Grossmn PA For LOBAR ASSOCIATES, INC. in accordance with this agreement, the agreement between the owner & contractor, & in accordance with the general conditions of the contract, supplementary conditions, the drawings, specifications, amendments, and/or addenda prepared by _, hereinafter called the architect or owner's authorized agent, all of which documents, signed by the parties thereto or identified by the architect or owner's authorized agent, form a part of a contract between the contractor and the owner dated 8/3/2007 & hereby become a part of this contract & herein referred to as the contract documents, & shall be available to the subcontractor upon his request prior to and anytime subsequent to signing this subcontract. Def.'s Ex. 1 (emphasis added) (errors in original). The incorporation provision is riddled with spelling errors and identifies the prime contract by an erroneous date. However, it identified the parties to the prime contract by name and broadly stated all documents forming a part of the prime contract "hereby become a part of this contract ...." Def.'s Ex. 1. Further, the final line of the provision notified Subcontractor of the existence of external contract documents and empowered it to request those documents prior to signing the subcontract. -7- 09-6772 CIVIL TERM Based on our reading of the incorporation provision, we reject Subcontractor's proffered interpretation as overly narrow and failing to effectuate the provision as a whole. Midomo, 739 A.2d at 191. We find the only reasonable interpretation of the incorporation provision is that it amounts to a general incorporation of the terms of the prime contract, including the arbitration provision, into the subcontract. Century Indem. Co., 584 F.3d at 534. Accordingly, we conclude the incorporation provision is unambiguous and serves to bind subcontractor to the arbitration agreement in the prime contract. III. Scope of Arbitration Agreement Having concluded the parties have entered an agreement to arbitrate, we must now determine whether the instant dispute is within the scope of the arbitration agreement. Midomo, 739 A.2d at 186-87. We analyze arbitration agreements according to the rules of contractual construction and adopt an interpretation giving paramount importance to the intent of the parties and ascribe "the most reasonable, probable, and natural conduct to the parties." Id. at 191. Here, we have little difficulty concluding Subcontractor's payment dispute is within the scope of the arbitration agreement in the prime contract. Section 6.3.1. of the prime contract states "any claim, dispute or other matter in question arising out of or related to [the prime contract) shall be subject to arbitration ...." Def.'s Ex. 2, Prime Contract, § A.6.3.1. This provision is clearly "framed in the broadest conceivable language" and thus encompasses the dispute between -8- 09-6772 CIVIL TERM contractor and subcontractor regarding payment due under the subcontract. See Two Rivers Terminal L. P. v. Benatec Assocs. /nc., 40 Pa. D. & C. 4th 497, 502 (C.P. Dauphin 1998). IV. Conclusion In sum, we reach the following conclusions: (1) arbitration provisions may be incorporated by reference through general incorporation provisions; (2) the subcontract's incorporation provision is unambiguous; and (3) the instant dispute is within the scope of the arbitration provision. Accordingly, we sustain Contractor's preliminary objection and dismiss Subcontractor's complaint. RDER OF COURT AND NOW, this ,-- ~~ day of June, 2010, defendant's preliminary objection, IS SUSTAINED. Plaintiff's complaint, IS DISMISSED. By the Court, ~~ Albert H. Masland, J. Gerald S. Gaetano, Esquire For Plaintiff Veronica J. Finkelstein, Esquire For Defendant sal -9- BLACK LANDSCAPE CONTRACTING, INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. LOBAR ASSOCIATES, INC., DEFENDANT 09-6772 CIVIL TERM ORDER OF COURT N AND NOW, this ~ day of July, 2010, this court's opinion of June 25, 2010, is corrected to reflect that the case cited in Section II A, Langston v. National Media Corp., 596 A.2d 860, 864 (Pa. Super. 1991), IS DELETED and replaced with Smith v. Cumberland Group, Ltd., 687 A.2d 1167, 1171 (Pa. Super. 1997). All other provisions of this court's opinion of June 25, 2010, shall remain in full force and effect. By the Court, Albert H. Masland, J. 'Gerald S. Gaetano, Esquire For Plaintiff 'Veronica J. Finkelstein, Esquire For Defendant -~ o ~ _~,~., :sal ~~ ~ ~~ ~.~ -~