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HomeMy WebLinkAbout09-8859CUMBERLAND ANALYTICAL ASSOCIATES, LLC, Plaintiff VS COLONIAL SURETY AGENCY, LLC, a/k/a COLONIAL SURETY COMPANY, Defendant * IN THE COURT OF COMMON PLEAS OF * * CUMBERLAND COUNTY, PA. * * CIVIL ACTION * * NO.2009 - Rs?S? Civil le-rill * * COMPULSORY ARBITRATION * TO: COLONIAL SURETY AGENCY, LLC, a/k/a COLONIAL SURETY COMPANY, 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. Pennsylvania Bar Association Lawyer Referral Service 100 South Street, P.O. Box 186 Harrisburg, Pennsylvania 17108-0186 Telephone: 1-800-692-7375 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, Pennsylvania 17013 Telephone: 1-717-249-3166 or 1-800-990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans With Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the Court, please contact the office of the Cumberland County Court Administrator, Cumberland County Court House, One Courthouse Square, Carlisle, Pennsylvania 17013, Telephone No. (717) 240-6200. All arrangements must be made at least seventy-two (72) hours prior to any hearing or business before the Court. You must attend the scheduled conference or hearing. Respectfully submitted, WIEST, MUO NOON & SWINEHART BY: Roger V. Wiest, Esquire Atty ID #: 07638 James C. Bathgate, Esquire Atty ID #: 91196 240-246 Market Street P.O. Box 791 Sunbury, PA 17801-0791 Telephone: (570) 286-7777 COUNSEL FOR PLAINTIFF CUMBERLAND ANALYTICAL * IN THE COURT OF COMMON PLEAS OF ASSOCIATES, LLC, Plaintiff * CUMBERLAND COUNTY, PA. * VS * CIVIL ACTION * COLONIAL SURETY AGENCY, LLC, * c Also Known As COLONIAL SURETY * NO. 2009 - VV5y CNN COMPANY, Defendant * COMPULSORY ARBITRATION COMPLAINT The Plaintiff, Cumberland Analytical Associates, LLC, by and through legal counsel, Wiest, Muolo, Noon & Swinehart, file the foregoing Complaint against the above referenced Defendant and in support thereof avers as follows: 1. The Plaintiff, Cumberland Analytical Associates, LLC, is a duly organized and existing Limited Liability Company of the Commonwealth of Pennsylvania with its principal place of business located at 49 West Hollow Road, Middleburg, Pennsylvania, 17842. 2. The Defendant, Colonial Surety Agency, LLC, a/k/a Colonial Surety Company, (hereinafter referred to as Colonial Surety Company), is an insurance company authorized to do business in Pennsylvania. Defendant maintains its principal place of business located at 50 Chestnut Ridge Road, Montvale, New Jersey, 07645. 3. On or about April 14, 2008, the Plaintiff entered into a subcontract with D M E Construction Associates, Inc., (hereinafter referred to as D M E Construction). Under the terms of the Subcontract Agreement, Plaintiff was to perform work as a subcontractor, namely performing indoor quality monitoring during the removal of asbestos containing roofing material and VOC testing, on a project designated as Roof Replacement, Buildings 203 and 204, Naval Support Activity, Mechanicsburg, Pennsylvania on behalf of the Department of Navy, Naval Facilities Engineering Command, (hereinafter referred to as "the Project") 4. As a condition of being awarded the bid for the construction on the roof replacement, D M E Construction was required to submit to the Department of Navy a payment and performance bond to assure that it would perform the construction contract and to assure that all subcontractors and materials suppliers performing work or supplying materials on the project would be paid. A true and correct copy of the Award Letter and Contractor's Bond is attached hereto, made a part hereof and designated as Exhibit "A". 5. In the event of D M E Construction's failure to pay suppliers and subcontractors, Defendant, Colonial Surety Company, by virtue of a surety bond issued on behalf of D M E Construction on the project, agreed to be liable for all such costs to the extent of the amount of the bond. 6. The Plaintiff, as a subcontractor on the project, was a third party beneficiary of the surety bond. 7. The Plaintiff performed work as a subcontractor on the project valued at Twenty-Seven Thousand Eight Hundred ($27,800.00) Dollars. 8. The Plaintiff submitted to D M E Construction invoices for the services that it rendered on the project. A true and correct copy of the invoices are attached hereto, made a part hereof and designated as Exhibit "B". 9. Despite repeated demands for payment, D M E Construction has refused to pay Plaintiff the sum due and owing. 10. The Plaintiff has put the Defendant on notice of said claim and Defendant has refused to pay Plaintiff the sum due and owing. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of Twenty-Seven Thousand Eight Hundred ($27,800.00) Dollars, plus costs and interest. Respectfully submitted, WIEST, MUOLO, NOON & SWINEHART BY: Roger V. Wiest, Esquire James C. Bathgate, Esquire 240-246 Market Street P.O. Box 791 Sunbury, Pennsylvania 17801 Attorneys for Plaintiff VERIFICATION I verify that the statements in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. ?a vv_? / -111W Timothy o sh, a member of Cum and Analytical Associates, LLC Dated: December 18, 2009 L EXHIBIT "A" 10/28/2009 01:07 2158976932 PHILA ROICC PAGE 02/06 DEPARTMENT OF THE NAVY OFFICER IN C 4AME NAVFAC CONTRACTS NAVAL SUPPORT ACTIVITY 5450 CARLISLE PIKE P.O. BOX 2020 MECHANICSBURG. PA 17055-0788 F180IN081C/dN I OCT 2007 DIRE Construction Associates, Inc. 126 Old Field Road B. Setauket, MY 11733 Subject: CONTRACT W40085-07-C-4467, REPLACE ROOF, BUILDIRW 203 AND 204, NAVAL SUPPORT ACTIVIM 148CEiWICSSURG, PA Gentlemen: Enclosed is a duplicate original copy of the contract. before your company can proceed with on-site performance, you must furnish the following: (X) Acceptable Performance and Payment Bonds. The performance bond shall be i004 and the payment bond shall be 50* of the Contract price. The contract number must be annotated an the bonds. {X) Acceptable Certificate of Insurance for the prime contractor that includes: a. The specified insurance coverage. b. An endorsement that any cancellation or material change adversely affecting the Governments interest shall not be effective for thirty (30) days. . e. The contract number referenced an all insurance certificates. { ) Certification as to the percentage of work to be performed by the prime contractor. Upon approval of the above bonds and certifications, you will be notified that you may proceed with on site work and a signed copy of the contract will be forwarded to you. 10/28/2009 01:07 2158976932 PHILA ROICC PAGE 03/06 N40085-01-C-4467 p. 2 Upon receipt of this notice, your company should Contact Lonnie Moyer at 717-605-2659 to arrange for the :required pre-performance conference. Please address all correspondence to the officer in Charge NAVFAC Contracts, Naval Support Activity, 5450 Carlisle Pike, P.O. Box 2020, Building 305, Code MOB1C, Mechanicsburg, PA 17055-0788. Sincerely, . M. NIHO Contract Specialist By direction officer in Charge NAVFAC Contracts CC: Project Manager 10/28/2009 01:07 2158976932 PHILA ROICC PAGE 04/06 11. {AwYAaCrw) w.o?? CM 001MhUftion AMD= D= . 126 Old Field Road f0.tit1latRT ?r1AalYerr?wtswMj E. SatnWnt, W 11733 D"NUMEt 9, 4 ' d s i ? MW bpM6erM¦sM1?t+t1 t/ Ww amt ittlttaer/tOt1l??lismtdnpn trdOMltbtllaolWMft . my K A11011111? BIpTi6?l1lI0001-:2,695,000.00 1.TM b 1!, d AMENDWRrMD , 1 DAIE al15 (7°'e'v"PWtsr CRMrdM ;cesideft 23/07 , Contract 21. 1. Bid Item 001 as described by Solicitation !lumber 840085-07-3-4467 and Amendment 0001 thereto. Z. The Contxact shall commence on 28 September 2007 and be completed on 26 October 2008. This constitutes the award referred to In 31"k 11. 22.MIOUNT 3LA000UN=AWAWMF%1flO nm s2t695,000.00 See the attached contract award supplement. 2l. NOOIyti01 Orfm w jj I U-FATMWWLLMKWjFf OFFMM M COVA WFAC CONTRArm WMOW4bW-FI4 tAoosWia Pti11N NWAL StJPPMACINRY PA DMOO M P.O. M 2: ONLOlp 3M CODE MO IC OMwlmid, ON 411W sws,rgnr I- sloft aNlMOi1N1ED 4=61* 0 atMM ii ?? ssb ilM1lT OMW 1"., . toNtrtNh.bat?r+?wt r+?olkw?itmMlsld?nlMtt a..t?rsrwr.l?se.wraaplr»?wt.+ww?A.aa astttylamwrd/gl Artlttrsmmlittt?satl yOUr?tO11(MtealMS?l NoM811rpebbmlfumtltM mesp.lhlt?a a1wsAMMsbt?sOAlatrlr6s mxemrr . • Indmft ? ? .w>e r n° MEW, J a? er ze s?`?3oa7 ?, _ _? _ ? . R .,?wuvsv raw yam ¦ic?t 10/26/2009 01:07 2158976932 PHILA ROICC PAGE 05/06 Riau r•...o s. d s..?.,....? C?mtrad NM???•C.#?i7 Block 23 Aommdrig Bpd Appropsiuion Dm AS 1707111203 2379 OW 98M 0 OWM 2D 7C4167 AMDA0020154 $1.4 44&00 A1; 17071112015 2579 0321 96206 0 06!<T31 217 MAW AMA0020I34 $ 75 .00 AG 1707111205 2579 0323 9620.5 0 06X733 3D 704467 AGOOA0020136 S1.O3A26A0 AH t707111205 2579 0323 96209 A 00732 2D 7C4461 A1#MAOM136 S 93.674-00 10/28/2009 01:07 2158976932 PHILA ROICC PAGE 06/06 AND AWARD must be BY OFFICER IN CHARGE NAVFAC CONTRACTS NAVAL SUPPORT AM", CODE M001C 54$0 CARLISLE PIKE P.O. Sox 2020, BULDING 305 4 A. SANE AS BLOCK NO, 7 0. CALLS) In, bate). J*V 10. THE- GMSMMT -MQUM - - - - - M; AWE OF THE THESE WCUMEM OAK Solicitation 9400$S-07-2-4467 CONTACT, P, Q%%-en 737-605-4665, faK 717-605-3929/COntractive officer, 0. M. Nihaff 717.605-4579 Title: Replace Roof, 00ildings 203 and 204, Naval Support Activity, Mechaniceburg, PA Scope of Worke Thee work includes replacing the existing roofing system en sldgs 203 and 704 including removal of existing built-up and/or modified bitunesn roofing, repair of deteriorated roof deck, removal of asbestos containing roofing materials and transite board, installation OL roof deck tnsulstioa and EPDM roofing, replacement of vieiating street lights. installation of exhaust fans and x0111-mounted louvers. installation of exterior insulation and finish syetes and incidental related work. .ltstimated Price Range: Between $1,000,000 and $5,000,000. Number of Days in Contract: 240 with a 1 MarCh 2000 start for on site work. lumber of Rid Items: One NAICS Code, 336160 Roofing Contractors $33 Million. Prospective contractors must register in the DOD Central ContractorRegiatration Database prior to award. biddera are notified that failure to register may render their firm ineligible for award. Specifications and drawings will not be directly provided in a paper and copy format or LM-ROM. The address for downloading this solicitation from the internfe is http://aml.nvvtac.navy.mil. All prospective bidders are encouraged to register op the above web site for this procure seat when apoeificationx and drawings become available. Plan holders will be maintained on and can be printed from the web site. Notification cot any changes to this solicitation li.e. amendmantal shall be marls only on the web site. xt is therefore the bidder,e ie6ponoibility to check the web site daily for any posted Cnansggee¦ to the solicitation. Thi9 acquisition xl,all be unrestricted with a 10% Rvalnation Preference for Nets Zone Small business. site viAlt by appointment. Contact Lonnie 14wev at 717-605-2659- * :1, -Ee mWn how many cafendardays d w award h &m 128.) :S n No A. Proposals in arig W and M copies b vertonn 1* WO& MMJI I are due at the *0 MM W M Nom 8 by (h* bW *w 23 Aupus12W (defs). 11 d* is a aided bid zftbBm o5n. wig be p My gpMW at Md Imo. Mod omdopa canlairtN offers shah be ma,lasd Io dhow fhe olferols name and addernsa, iht ookboon maber, and the dale and 5me offers am due. 13. An after guerarnme ® is, ? is not requred. C. AN oelars ere subjects to the (1) work mga mments, and (2) other provie M end dsuses irx arpcrHed in to sokbtkm in toll lod or by D- Offers providing leas then 60 calendar days fair GovmnyWt accepWm agar ft date offers are due vA not be considered and ® SEALED MD (FM N40WWA744487 E3 NEOD'r IM (RM 8. PAM 24 j% 2007 4 1 of 2 NSN 7540-0t-15SQ12 1442.102 FAR 10/22/2009 21:14 2158976932 PHILA ROICC PAGE 02/09 Bond 10. CSC-219207 Payment Bond Pam In "M orM w ,: S (See anlrsefboss an nrsrsy ?' C0f 1rs? 10/11/07 PUbk E "wiewo -pwf bwden %r fre o ' Ieefen m MMnalfM Y §dklldeb U0*P W&%6 epr ??11e11oe a 4111e f111e for 1er11¦?q k11ee0ftee, *0 aft" T dtoa?%awtat ep?lanMla? gfiem6rSanOrh MOe. d oMMo?A ? Inawainp N?.re„¦b1f?.duergfa anrkar? Iwt (seawner EFOWC AM= rnmvff-AL (L"01 nerve anp b QWM$ K%VM) . DM construction Associates lab old Field Road E. Setauket, NY 11733 - I Time) (NOT") ens binlrme edtkfeeps) COLONIAL SURETY COMPANY SO Chestnut Ridge Road Montvale, NJ 07645 TYPE OF ORGANIZATION (w one) ? INDIVIDUAL. ? PARTNERSHIP ? JOINT VENTURE R CORPORA noN STATE OF INCORPORATION " .-- NY PENAL SUM OF WW -----? I ---695 CONTRACT DATE ---000 1 00 09/21/2007 1N40085-07-C-4467 OSLIGATiON: P 00 a w dd3onlyp alw6rd)reernebr.u?r4dlM?sa+b1s11or?1w.r.?rwMwMwOv?wlNMOMPNOMponivAmferpyaentaf?. ¦aeea. ? e» &11ate1t ww 8Moab i M &Am a.eledn?111 Me(on ' a11d eoool.ole, Jekldy enf a«wtr 1•wMr.r, wieq fe M¦efa aie 9?M?d?w?enAraswNUlwr..f?ad)r4bpeoandowos 1r aw. Ford I IF pmpeen, aee? swaly lrnd? tE1ek lobslrend e+vanry rM11 f1e P1klplpet, ar lIM peNne,d d a1.,,,0 M a eeNn o..erale,0.1aM.,,y a Imil d ItebtMly M MdlnMe, h fmk a itebAlbr h the Gi enaant d fw aend sum. oppftb ft no w dfa ?. N no CONDITIONS: rtle eeor. okpefon M vole 1f fw P1YIdpd "w rily i11esn peyeeik f .gor. fer wsoreheWqasndnYopwo oNNleipeerawbIN 11 1 ,Nehda?bdM teponn> MalineovkPwftd PM r ooiegprifleP1Y1c1pM for mnlr.q kIMltlAed obo^ end any ?1e1Med nlodMc+efaK aa. mrroel d+N wbeeque - - mlde. Nolte d t en leod hook y loft q,rdy f* eq wo WITNESS: The PrlnciPsl/a?1d/,•. "''e-e) oolsa?tsd are bend and fond uw an dey, 1.a .,__ ->.Z? I k I a. - - - =3- !T __ J NAME 4 1 (? (Sow) (lyp9d) 2. CORPORATE NMrf" NAMES COLONIAL StlArry faOIr pArT STATE OF IN LWBIL)'i'Y UWr ADORE93 50 Chestnut Ridge Road, Mentvdlle, NJ PA 5873,000,00--- SrONATURF431 A NAhfB(S) 6 1; S erryanna bepirre Attorney-in-pact Bond A". 10/22/2009 21:14 2158976932 PHILA ROICC PAGE 03/09 _ CORPORATE nrt ;eo w-wdn ) 1 NAM & PMbW RelanoeoeeCWVW atdaeU.S STATE OF IN I L1ASI6IT1l LIFItI' C I AL?ORES9 On?orsionvidhTWs MY $2,074,000-00 ?? s1aNA1 URE(8) L 2. NAME($) 8 1. Anthony jo. imae)mai? Z zti Alf TITLE(s)(Typom Attarney-in-Fact a>auo Bond Adel. NAM a STATE OF M LkbN.ITY LI co ADOMOS SIt3NATl1!!E(S) , 7• 2. cj cj;, TITLE(Sr (Ti?P?I ? NAME aR STATE OF IN UARO Y UMIT a ADMESS v MAMM(s) a i 2. - TITLE(9) (Typed) ; NAM 9 i I STATE OF IN i LIJAMLITY LUdT SIGNATURE(S) 11. --••-_ _--.. . K ...._..---- +... I _ . ...... rn NAME(S) S 1. Tics) rn?a.d) .. ?..... _.1. _......., ! NAME a ? ADDRESS i -SIGNATURE(S) 1. + NAME($) A _ 1. 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Any pemn draft in a repmwAWn ttevardv ad = MrbnrMr oorkrp r+.? 11n¦+del ege00Ay ?aOaNgrtR4.. en arovaaalr•41AUq awettleadeh atitdwaoe dsarary r to ntoteewpMM Is net a aeavabev of the . n?IoYi wnr<re. oraa oteer of iae ogapoedeaa ivvaNad. a Ca pa mill wtewrrnr MUM Nad o tr that onapwar sift t+OaAdaaf etnll wfloMa M bad eppeoMa ria wear ?Caperdr tiaalF; sxl a• i!UporeMate wo!+ww1t!a Bond as «+reMae nwrlr aypee?aa+he sholl oft a+nfrdl!.an? wqu11rMgiveIn . Mffin OepwMawat of r1a Treeuaryl Ma?terealMarvw watered ea vaatalt erl wm to tMnllndan Ofd moll whw no thm era ooipogle saes Y MwoMed, rut anarno and e0daeeeo Ad kt M aaeoee (luae?? 3 ? ; & Typo M Deese ww ft of each pmm wwft ri bond in ria epees F?ovldld. a -dy 5, ems) headed roow o 7 OL)R rQMV in Vm op o, ,10/22/2009 21:14 2158976932 PHILA ROICC PAGE 04/09 C? ON1AL SURETY COMPANY otlnaanncn. Psrns>livar141 ndnlirliehaNva al?co; 5o cnee? ?. 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Urd tlts Praeidnr? er4l MOS?Pneldalt. Mrr ?>y or ?!? AasllMarlt saolstee>Y s11s? t?et and M hMrtl+f? tarstsd wi1A fug power and authorlgl to appsllt sryr ens a rasne Ndtsbls psnrons a Mlsrnsy?sot b rr?rraaarrt sed Mot for and on bR1uiM aR iM Con1pMM?? sulr?at ?a tlra frrNM?wbq proylelorie: "'Js?atafan t Atlsnre?n.lnfaat ?Mon?11-?I?et ma4? ba 91wn ? P? atd Mt?q?e?14? Ibr ahO In 11M nrtlM W Mnd Mn bdIMM of ria Coft?rq, t0 M10/Mtb? aoknOwMdN MM dsMsrf? Mlly Meld ? boldrr HsoColldsrrcas? OOr1?a0d? MpMMl?alrr d MdMntt?? and a1hM oontiftlond or obMslMry uldMrbeldnOS Mnd anir and ai rtMUOSa aee! dso1s11Mnb oaaosNrtl? or MrnlMlair!? t? Coapar9r'? bMbNItX tllsrwilldMr? and eery eeeitr MplrtrriMrl{a so Mo?Md btt INry sash Mb1iN?Nt•gat a11M bM bMrdlrrp r? ? ?P?!? MM if st?ruld bfl ties Peuskls+et sad salad snd atbeslsd b!/ ? CarporMts Ssestary?' -- --- sne As aorpawN sM11e a 1tMSte eAlbwd the ? loll a1 ?a1? - +? O.. 9A0? ?? °?, ste1M d Nsw Jerss?? .°c die c uKOr.n+.s ?, ?? ? ? ? 1f7M A ?4 ??nay?v*? CQlAIV1AL SUltl:TY COMPMNY Ultryne Nu?a4M ? this as. led of Saeeenlhar _ h iha>fssr 700?r bolero roe TtW..¦ ?r -a nolrrll per Perssn?l?spjlswsd _ _ _ -- VYlnsra NreoW . psrsose?r brssnf to wrs tv bs tlrs psnrert rW1o s>Ae4utap 1M wMhh hrstrsrnwll ss _ _P1wld1rlrt - on bahi d tIM OOrpsrsYen lirMNn rrarlred Mnd scMncwladi>od to nr thsf ? aorparMron allsctaad R THER66?1 S?1IMOTMT ? ? ? ?us.rruwaatr..,?n.? . hM ??? bUMr?lpMltMIL a>w Thelon SlrtnlorlM NOisry PubIIC tOrO? ? p?OWMr At?OfTlay ? trytly lYd QOMIpMI? ? hr??lOf Oe{'????p?r d?A1?1111? ? Md 1 do hawb?l hrrMrsr ardf><tAMt tM Csrtlposrorr of 11r1s wowMr ai IltbornM>r M MiDtMd and saalM isle faoslrsMs eedMr and bfl t1n andhe?ld awn firs ?OMof J?N?ry 1Md9. A ?d?d naohttloa bw MM?twnIMO e?Ne d a ?p dulY ooMnd ,1hMt ties a,h. saaMtary or sap /1.eiMant •aorteeirll a tlria fbeparatfoa?.wtd +n...d a Cavontlen. nrh? bs >tAlbeMb or pNrgsd d!?? b areir aarMbaa io a PoMSr of M{orlMll a tl11M Qorpsraron? and feral snob prtrlMA tacMrrlba sIp- nsturr and seal shag !1a rMd and ttindtrtll upon this CelpoenlaR" G1veN under Ilelrtd ana rona seMl a said Compsrlil, st MontvaN? Now dassr tills 1 ? dry of ?cbeear .2o_QL-. Fbl Vi'./I??L?MNI /? tM NAQMIINCtty ? 1hk nOrTl. M IU1MMy yAU At1y EIN tR01) 5?J171'? an0 Mra 'o.'1m r„,,,?, nl nnrrnt?y rwr.1'lruw rahn h• Iho ntewn'tfl++ett rtpMtMW;?I Ants holntw d tw 1.7n;: ?? .?n:n n+n rhrlwn ?!, altnMhl. Fo1m $.100.101(Rw 9?OS) FnIdwIC1t S' ?0' 9lOrMtafy .10/22/2009 21:14 2158976932 PHILA ROICC PAGE 05/09 State of New Jersey County of Bergen On this 11th of ar-tober . in the year 2007, before me, Theresa Simmons., a Hairy Publfc, personally corals Shwryanm dePhr6; known to onto be-are Attvrneyanfsot of Colmlel Surety Company, the corporation described in the within instrument, and she acknowledged that she execelsd the within Instrument as the act of said Coianisl Surety Company in accordance with authority duly conferred upon her by said Company. Theresa SI mnx= A Notary Public of New Jersey My Commission Expires September 2, 2010 Theresa Simmons Notary Public 10/22/2009 21:14 2158976932 PHILA ROICC PAGE 06/09 COLONIAL SURETY COMPANY Dunew"m , Pnlrmny"Onm - Inc 19$0- P94ANOM _mwmrlillmp m, 9006 1.IApS E1, IIURPLYS 'Stocks and Bonds ......... ..........f iSAW151 Cash In Offies & Banks .................. 1.500AW Accnwd IHWOK A Dlvldends .............. 233.925 Premiums A Apants Salarm.s Reoswab * , ... 864.396 Other Assets .......................... 1.263,713 Total Admitted Aav4% .. . ........... 22.131.779 Reserve fvr Unewned PNNANrrs ....... .......SCUSAW Claim Rssarvss ......................... .7,032.800 Other Liabmdn ........................... 1,191,4:53 iloilill" Mold ............................ 848.973 CapU Stole ............................. 3,W0AW Surplus ..... ............................8,730.941 Told Ummod" a Supkrs ...............22.131,779 •8wWv and aI I w wavAd m b W -ppMevrd by UdkanU AmOdOw of kwxonm Gawisraorwn. COUNTY OF MGEN I, Wayne Nunslatr Prosidert of COLONIAL GUAM CDAAPAl1Y, dohs 4% cerwy #w*j ale a tut w" end corrsct ON of the FinanoW Statement of said Company, a. of 0800111WWer 61.200!. IN W17 4wa WmaRmo . I tlave signed this sblwftm et Montvale, New Jersey. this 16th day of Fdxuwy. 2007. o ?,o O Inecrperatwl . • tm r 4?ez A4.000. woos NIMUti111? Prraldant TTtw SMwnens "almy Pubb TAarwr slmfno A HvWV PMlfb of Nsw Jw y f* Gnnrrd.n ft0m #rpNSlk I4 8Ma 10/22/2009 21:14 2158976932 PHILA ROICC PAGE 07/09 POWER OF ATTORNEY KNOW ALL MEN VV THESE PRESMOS: 110 PARTNOR RUMURANCi COMPANY OF THE U.S., a New York ootporatiod (Ole *Corporation"), with offiocs atOne Gro mieb PaMOutwi*Cooagtkm. 06830Inmaeeonetitu1 mad appohr lod and bythno prmet - does make, oorq k I and appoint Wayne Nmmk tor, ANNOM J. Claw" OW Sftierryeiwr DePi re., amAm w of Colardaf S1wV Commir its true and lawful AttoeR: Oin.Fact, of . ih Use Stage of uu.. anal nitro ottlwn tdope b Iwo fidiewl8nut We poi w or weds, bmim; eneem wA ddhw on hs bdwf, .......... ?Y R ........... .... .... . . . . IS surety or co-Suaaxy. bends and under"Ithw prep for my and all part 0 1 6 do to clmarlae and ddhw as id bahaif a ammsaW tare+rA erntmaioat, tl(Reertt 04 waivers. coeeals or diputadons relating to mck bonds or wWataltatp pmWK howar+r, that m skngk hosed or undmtskrrg to mak a and deiivcrod shell oWlpts SSW Corporation lbr any portion of dm pant Sum tlhcreoF (s ..LRQQ,QQQ..). Such txorrh and anaknskinp far saW pwpoate, when door aamated by and Atortwy(r}m,Fahat. sbaM he Iindinng upon the Corpowim as filly and to the same extent as if signed by the Ptaidtma of the Cogtorstiopusder ik eorpomie sed t 11, , by its Corpotele Seaakryr or AsdXM 5ersatary. This apiwiMntent is made miler and by authority Of m oartdO Res k*m adop4d at a owing of 0 a Dowd of Dkftm of tam COW"" duly held on the 22nd day of Jniy 2003. s copy of which appesn bmirr uada: the hmdkha end*d Tmdl! aa." The Power of Momey may be sipmd end sealed by iksbn& under and by autmrtty of the AWowieg enoludon adapted by the Hoard of Directors of the Corpuration at a aaeetit(t duly called and held on the 22nd day of July 2003 and said tesokdon her not shm berm loraked. anlall I or fepaled. RESOLVtiD, that airy two of die ibllemag ofhlom of the Company, ear Hem Group A: PAbia M. WHlimm. Charles T. Coid'it, Repr C. Jacobsen. or Richard MayadWm and am >itam Orcup 9: 3outt D. M mat John N. AdWML Cathy A. Hauek at Af dw i. Gant, be, sad ray hereby in. auWortaed. Rom thm to dam in their discretion, to eppohm each agent or agents of Money or Mraaeysd&Aiet as demed by dmn neeessuy or desimble for tie purpose of earryiad on dw Campmyl bwMma. aW lomwoewaaaD spoor apnb or same my or abmisp inabet to eaaeeatc sad deliver, is We Coralmno theme and on its belmlt: and under is eml or oOlerwlle, bomk oMipGaro, uodut*kW sad n mpkbwao . whodw maft by m odtpany r $vrew Tom or myowrelm co'maear and rntdaredtkage rode in the oo4aa of the CAmple" lrtahaaaos and rebw mama bmhmati and ramwils, ...w viora? epos nwm. warhem consents or stipdatk m texwm& cx0mi ft amcndim mwkmmft raaslMing or amadiag moulmets at uaderteltimp so made, or approving or eonsea ft no the modiFeation, auemdion at mftmnem of epaanaaru4r or specitmatkam reftnsd io in eont+aoa or mtdertakinp; m msde'md beit FURTHER RESOLVED, thatin Venting porn. of at001tley pwsuatt so Om aforataid raaolutlan, Ore aipotmw of=* Orom dkmm ad 01111oers 10 NA*ff=d and Me ad ofdue Company a" be affixed to nay such poorer of t omM or oy cmdoe se rda ft therale by racsintha, and any such power of ammy or certificate bmwft such famiaatk Is I I re or and shall bs valid and binding upm time O=q mry in the Mum with roapeet 10 any bond or undertaking to wbreh it is moncMd. This Power or Attorney shall expos end all authority hereunder shall termimhie wkhout notice a midnight (Staednd Tinto whore said Aleclo (s),in.Fact is authorized to ad) ............. ...t?p!K ?l.»........... 2008. IN tlWITNESS WHO MP, this Cotpomdoa bee cawed these I 1 0 b be duty sip sal and its oorpoe k and to be herermto QMW and anmted this ,..#.• .....................day or.... .....2007, at Greaewheh. Coramatiad. (CarpuateSeal) P/A,/R?JlN?F.R_ Arteat?,_ •'.,,?; ;i;;, ? ..iLivs.l?a:l+s?;..!lr?i,:;? {R Vies Pre3W=l A Amda and Secretary 7??? tl/J`3?.1 DY__?______ STATU OF CONNECTICUT ss: COUNTY OF FAIRFlaD On the 8!...Ay of,+mm.......... 2007, befbm me posoollY cow did depose and say do hWm is the by me duly sworn, did acpnre and try that ....at heot hadaita is the • is the ••••'-' and befdm use personally „„8?ytiR>'Ap?iltlt.. tic Carpfwstioa described iu and wbici • swap excemd the abova ioMl!anaet? (fiat htrbio imaam ...... >deami of um mntc Seal. that it was so affixed by order orthe noted gfDbMm of? and that (Notarial Seal) taSr/ S I PPUBLIC THE U.S. ..a to me ktawn, who bang by ms duly :mere. ftLJQ L .............. to m known, cob being AM REINSURANCE COMPANY OF TIJR U.S., for; tort the asd affixed to said inrtrornmr ts sud? their saran themtpN lira miff. 1#hPanw@tAaregNWMM.„Pew*raask"r'PARTMMROMMA -CECOMPANYCarTMUs- aM it" l-W "halllkasw wmmk d,ele"dv. Power No. CSC ;519 I of 2 10/22/2009 21:14 2158976932 PHILA ROICC PAGE 08/09 CERTMCATE STATE OF 00NNEMCUT 311; COUNTY OF FAIRFIELD fhc undenitiod............ UMA'AdI ft .......................».. ben6y aatirw, 1. That the odgW nesottution of which the following is o cupy was duly adopbd se, and reeoNed is tln rabtrreea of, a NSWW naMiq Of ft Bond of Dlrecton of said Cnrpnratian duly held oe JWy 22, 2003. and has not sieve bean mvokmt mtettded or modifiod, RESOLVED. thst any two of tim fbilowing otl ms of do Compey, are Beea Group A: Robin M. Williams, (harks T. Geldie. Rogers C. Jacobsen, or Richard lArtu eirq and one 5oro GmW 81 Sea D. bioaR John N. AdbUrk Cdhy A. Haadr er Amber I. Ong. 1a, and tllry htaeby are. walaritred, Rom time to torte in their discretion, in ap dM suds m@W or aptm of AM, my or mdommyWo4lift as dul"d by them maraary or desirable fbr the ttnrpoea of ataryhr? as the Company's haellNSe. sad b empower atilt egeat 9r a/sttls err rttontey or aasrasy6im- ac to wteeree and deliver. in the Com*Wls mane and oaks behdf, and order i0 aeat or o m wise bends, obNpeierte, ands mkilp, ad read ffi lle toW, whollm made by tt„s Catrrpetty as suety " - c c or otherwise, indent ft amW M R'ittsurmos trMiias, mnortae' arA awtifi , ' , and ergs and mill other eattttrecis and underl kfop made is the course Of die Cempswo issaRllae and 1 e*1 ---, busirt M and ram ml , oftnions, agtemncuts, wefvers. oamwm at stipulations ranewfnB, exte Ak& sasendfng, 11' 1& reireeasfng or taateelimg eorRsad or radaddnp N made, or approving or maaentirrp to die modiflemion. alternation or Nagrarrerd of astomm mrm orrpeeiBoom Mfttted loin aoaltacls Or adocukh js so made: and he it FUR'T'HER RF.SOLVED. dot it par4irra powers of m mey Pursaenl to the eAorasi/ raototiss, the ei/Mrras ei aeb of diaee diraelors sd ofllimrs m u0mind sad the red of the Compaty any be affixed b ssty such power of stlotltefr *ray aastlfioale tdxft Meletu by fscsitttila. such4haftlk si¦natnea - Beat did be vidW sed 664a am So Caatpoy !aft fimtse with respect to m y bond or umde Wft to which it is trashed. 2. 'The undwsigncd further certifies tho the above resolution is Spits, correct and complete copy of the sesolutiaa m so t RPM ind in its omirety. IN WITNMS WHCRCOF, I hart lreretrrrto eat my hand and affixed the corporate coal thi;.......... ....... day ?..........811nfil ................ _ 200?. IC'orporad` Scat ? ......... ................. V"tae Aeeldtax&Apfetant So m fory. Thor Pear nrAamar u p uded a pAm wom wtwi TAIt'tMM XCNKWAMZ C0MrAtry OF TW U7• wd w nor nerd wieiwadw-dowmh ad red hordk 2 Powa No. CSC-549 of 2 ! 10/22/2669 21:14 2158976932 PHILA ROICC PAGE 09/09 Sdna 1930 50 Chestnut Ridge Road, mo-dwale, New j 0I soy 007645 - -- Phone: 201-573-8788/800-221-3662 Fax: 201-573-1062J800-743-1062 www colonialsurety'com I i • i . EXHIBIT "B" !9L associates, LLC CUMBERLAND ANALYTICAL ASSOCIATES, LLC 49 West Hollow Road Middleburg, PA 17842 Phone: 570-541-2183 Fax: 570-837-0595 04MC E To: DME Construction P. O. Box 482 Port Jefferson, NY 11777 Quantity Description ASBESTOS AIR MONITORING Dept. of Navy Mechanicsburg, Pennsylvania 1 04/14/2008 - Time On: 7:00 Time Off. 15:00 1 04/15/2008 - Time On: 7:00 Time Off: 15:00 1 04/16/2008 - Time On: 7:00 Time Off: 14:00 1 04/17/2008 - Time On: 7:00 Time Off: 14:00 1 04/18/2008 - Time On: 7:00 Time Off. 12:00 1 04/22/2008 - Time On: 7:00 Time Off. 10:00 1 05/13/2008 - Time On: 9:30 Time Off. 15:00 1 05/14/2008 - Time On: 7:00 Time Off: 12:00 1 05/17/2008 -Time On: 7:00 Time Off: 11:00 1 05/21/2008 - Time On: 7:00 Time Off. 11:00 1 05/23/2008 - Time On: 7:00 Time Off. 11:00 1 05/30/2008 - Time On: 7:00 Time Off: 12:00 1 06/01/2008 - Time On: 7:00 Time Off: 15:00 1 06/02/2008 - Time On: 7:00 Time Off: 12:00 1 06/03/2008 - Time On: 7:00 Time Off. 13:00 1 06/06/2008 - Time On: 7:00 Time Off: 15:00 1 06/07/2008 - Time On: 7:00 Time Off: 15:00 1 06/08/2008 - Time On: 7:00 Time Off. 15:00 06/09/2008 - Time On: 7:00 Time Off: 15:00 Invoice Number: 08-1164 Invoice Date: Aug 8, 2008 Due Date: Sept 8, 2008 Terms: Net 30 Your P.O.: NA CAA Job No.: 08-1714-016 Hygienist: Michael Dellaporta George Wagner Unit Price I Total $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $435.00 $435.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $435.00 $435.00 $435.00 $435.00 $385.00 $385.00 I "L A associates, LLC CUMBERLAND ANALYTICAL ASSOCIATES, LLC 49 West Hollow Road Middleburg, PA 17842 Phone: 570-541-2183 Fax: 570-837-0595 1 06/10/2008 -Time On: 7:00 Time Off: 15:00 $385.00 $385.00 1 06/11/2008 - Time On: 7:00 Time Off: 12:00 $385.00 $385.00 1 06/12/2008 - Time On: 7:00 Time Off: 14:00 $385.00 $385.00 1 06/13/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 06/16/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 06/17/2008 - Time On: 7:00 Time Off. 14:00 $385.00 $385.00 1 06/24/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 06/25/2008 - Time On: 7:00 Time Off: 13:00 $385.00 _____ 385.00 1 06/27/2008 -Time On: 7:00 Time Off. 13:00 $385.00 $385.00 1 06/28/2008 - Time On: 7:00 Time Off. 13:00 * * * * * $435.00 $435.00 1 06/30/2008 - Time On: 7:00 Time Off. 13:00 $385.00 $385.00 1 07/01/2008 - Time On: 7:00 Time Off. 14:00 $385.00 $385.00 1 07/02/2008 - Time On: 7:00 Time Off: 14:00 $385.00 $385.00 1 07/03/2008 - Time On: 7:00 Time Off. 14:00 $385.00 $385.00 1 07/08/2008 - Time On: 7:00 Time Off: 14:00 $385.00 $385.00 5 VOC test analysis 06/06/2008 - 06/10/2008 $499.00 $2495 Total Amount Due This Invoice $15785.00 All Invoices, unless otherwise agreed upon, are expected to be paid in full within thirty (30) days from date of invoice. A 1.5% per month finance charge will be added to past due accounts over thirty (30) days. REMITTANCE ADVICE FOR Invoice #08-1164on 08/08/2008 Please detach and send with remittance to: Received From: DME Construction Cumberland Analytical Associates, LLC Balance Due: $_ 15785.00 49 West Hollow Road Amount Paid: $ Middleburg, Pennsylvania 17842 CUMBERLAND ANALYTICAL ASSOCIATES, LLC 49 West Hollow Road 5& Middleburg, PA 17842 Phone: 570-541-2183 associates, L LC Fax: 570-837-0595 WVaCE To: DUE Construction Invoice Number: 08-1182 P. O. Box 482 Invoice Date: Oct 20 2008 , Port Jefferson, NY 11777 Due Date: Nov 20, 2008 Terms: Net 30 Your P.O.: NA CAA Job No.: 08-1714-016A Hygienist: George Wagner Quantity Description Unit Price Total ASBE=STOS AIR MONITORING Dept. of Navy Mechanicsburg, Pennsylvania 1 08/04/2008 - Time On: 6:30 Time Off. 14:00 $385.00 $385.00 1 08/07/2008 - Time On: 6:30 Time Off: 14:00 $385.00 $385.00 1 08/08/2008 - Time On: 6:30 Time Off. 14:00 $385.00 $385.00 1 08/13/2008 - Time On: 6:30 Time Off: 14:00 $385.00 $385.00 1 08/14/2008 - Time On: 6:30 Time Off: 14:00 $385.00 $385.00 1 08/18/2008 - Time On: 6:30 Time Off. 14:00 $385.00 $385.00 1 08/19/2008 - Time On: 6:30 Time Off: 14:00 $385.00 $385.00 1 08/20/2008 - Time On: 6:30 Time Off. 14:00 $385.00 $385.00 1 08/21/2008 -Time On: 6:30 Time Off: 14:00 $385.00 $385.00 1 08/26/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 09/03/2008 - Time On: 7:00 Time Off. 13:00 $385.00 $385.00 1 09/04/2008 - Time On: 7:00 Time Off 13:00 $385.00 $385.00 1 09/05/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 09/08/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 09/10/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 09/11/2008 - Time On: 7:00 Time Off. 13:00 $385.00 $385.00 1 09/15/2008 - Time On: 7:00 Time Off 13:00 $385.00 $385.00 1 09/17/2008 - Time On: 7:00 Time Off. 13:00 $385.00 $385.00 1 09/19/2008 - Time On: 7:00 Time Off. 13:00 $385.00 $385.00 1 09/22/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 !9L associates, LLC CUMBERLAND ANALYTICAL ASSOCIATES, LLC 49 West Hollow Road Middleburg, PA 17842 Phone: 570-541-2183 Fax: 570-837-0595 1 09/23/2008 - Time On: 7:00 Time Off. 13:00 $385.00 $385.00 1 09/24/2008 - Time On: 7:00 Time Off. 13:00 $385.00 $385.00 1 09/25/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 09/29/2008 - Time On: 7:00 Time Off. 13:00 $385.00 $385.00 1 09/30/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 10/02/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 10/06/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 10/14/2008 -Time On: 7:00 Time Off_ 1.3:00 385.00 $385.00 __ _.___ 1 10/17/2008 -Time On: 7:00 Time Off: 13:00 $385.00 $385.00 PID VOC test analysis $850.00 $850.00 Total Amount Due This Invoice $12,015.00 All Invoices, unless otherwise agreed upon, are expected to be paid in full within thirty (30) days from date of invoice. A 1.5% per month finance charge will be added to past due accounts over thirty (30) days. REMITTANCE VI FOR Invoice #08-1182 on 08/08/2008 Please detach and send with remittance to: Received From: DME Construction Cumberland Analytical Associates, LLC Balance Due: $-12.015.00 49 West Hollow Road Amount Paid: $ Middleburg, Pennsylvania 17842 0 2009 C;'^ f r, +qa. oo pr.-, PATr4 ?,it- ? 5q'10 ?t cj js5 oq CUMBERLAND ANALYTICAL ASSOCIATES, LLC, Plaintiff VS COLONIAL SURETY AGENCY, LLC, a/k/a COLONIAL SURETY COMPANY, Defendant * IN THE COURT OF COMMON PLEAS OF * * CUMBERLAND COUNTY, PA. * * CIVIL ACTION * * NO. 2009 - 8859 Civil Term * * COMPULSORY ARBITRATION * ACCEPTANCE OF SERVICE The undersigned, being authorized to do so, hereby accepts service of the Complaint in the above-captioned matter on behalf of the Defendant,--C?' c»rP??, ?n Colonial Surety Company. Miller, Esquire Dated: 12 ?Zl& S o p' M C C C' .. .5c: w N RLED-OFFICE LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 1423 State Road Duncannon, PA 17020 Telephone: [717]957-2828 2010 J .H 13 RN 1: 21 f L ? .l %!F i . ar..: Attorney for: COLONIAL SURETY COMPANY CUMBERLAND ANALYTICAL ASSOCIATES, LLC Plaintiff V. COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2009-8859 Civil Term NOTICE TO PLEAD TO: CUMBERLAND ANALYTICAL ASSOCIATES, LLC 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. i / DATE: January 12, 2010 By: LAR L. M LLER LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 1423 State Road Duncannon, PA 17020 Telephone: (717]957-2828 CUMBERLAND ANALYTICAL ASSOCIATES, LLC Attorney for: COLONIAL SURETY COMPANY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION Plaintiff V. COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY Defendant NO. 2009-8859 Civil Term COLONIAL SURETY COMPANY'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Colonial Surety Company ("Colonial"), by and through its counsel, and while expressly reserving all defenses, hereby files these Preliminary Objections to Plaintiff's Complaint. 1. Plaintiff has attempted to file suit on a payment bond that Colonial issued to the federal government for a Miller Act project at the Naval Support Activity Base in Mechanicsburg, Pennsylvania. 2. First, Plaintiff has failed to correctly name the surety. 3. Instead of suing Colonial, the suety on payment bond CSC-215207, Plaintiff has incorrectly sued "Colonial Surety Agency, LLC a/k/a Colonial Surety Company." 4. Plaintiff has failed to sue the surety on the bond and instead, has sued an unknown and unrelated entity "Colonial Surety Agency, LLC." 5. Because Plaintiff has failed to state a cognizable claim against Colonial, its complaint should be dismissed. 6. Second, the payment bond for the federal project was issued pursuant to the Miller Act. 7. Pursuant to the Miller Act, federal courts have exclusive jurisdiction of Miller Act payment bond claims. 8. Federal courts have exclusive jurisdiction over Miller Act claims. 40 U.S.C. §270b(b). 9. Plaintiff's action should be dismissed as this Court has no jurisdiction to hear a Miller Act payment bond claim. See 40 U.S.C. §270b(b). 10. Third, Plaintiff's invoices, which are incorporated into Plaintiff's complaint, reflect that Plaintiff's last performance of work occurred on October 17, 2008. See Exhibit "B" to Plaintiff's complaint. 11. Pursuant to the Miller Act, all suits must be filed within one year of the date of the last performance of work. 12. The Miller Act provides that "no such suit [on a payment bond] shall be commenced after the expiration of one year after the day on which the last of the labor was performed. . . by the subcontractor . . . . 11 40 U.S.C. §270b(b). 13. Plaintiff did not file suit until December 29, 2009. 14. Plaintiff's suit is barred by the statute of limitations which expired on or before October 17, 2009. 15. In that the permissible period for suit expired on or before October 17, 2009, Plaintiff's complaint should be dismissed, with prejudice, as it has no possible legitimate claim on Colonial's payment bond. WHEREFORE, Colonial Surety Company respectfully requests that this Honorable Court dismiss the complaint of Cumberland Analytical Associates, LLC, with prejudice. DATE: January 12, 2010 By: VERIFICATION I, LARRY L. MILLER, have prepared the foregoing PRELIMINARY OBJECTIONS. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this Verification on behalf of my client, COLONIAL SURETY COMPANY. The facts set forth in the pleading are based upon my review of the documents and information provided by Colonial Surety Company and/or of which I have personal knowledge as counsel for Colonial Surety Company. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Date: January 12, 2010 By: CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing PRELIMINARY OBJECTIONS upon counsel of record this 12th day of January, 2010 by placing the same in the United States Mail, 1ST CLASS and CERTIFIED mail, postage prepaid, addressed as follows: James C. Bathgate, Esquire Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 R? By ` t ? 201110 JAN 14 PH I` CUMBERLAND ANALYTICAL ASSOCIATES, LLC * IN THE COURT OF COMMON PLEAS OF Plaintiff * CUMBERLAND COUNTY, PA. * VS COLONIAL SURETY AGENCY, LLC, a/k/a COLONIAL SURETY COMPANY and COLONIAL SURETY COMPANY Defendant * CIVIL ACTION * NO. 2009-8859 CIVIL TERM * COMPULSORY ARBITRATION TO: COLONIAL SURETY COMPANY, Defendant c/o Larry Miller, Esquire 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. Pennsylvania Bar Association Lawyer Referral Service 100 South Street, P.O. Box 186 Harrisburg, Pennsylvania 17108-0186 Telephone: 1-800-692-7375 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, Pennsylvania 17013 Telephone: 1-717-249-3166 or 1-800-990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans With Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the Court, please contact the office of the Cumberland County Court Administrator, Cumberland County Court House, One Courthouse Square, Carlisle, Pennsylvania 17013, Telephone No. (717) 240-6200. All arrangements must be made at least seventy-two (72) hours prior to any hearing or business before the Court. You must attend the scheduled conference or hearing. Respectfully submitted, WIEST, MUOLO, NOON & SWINEHART BY: er . Wiest, Esquire Atty I : 07638 James C. Bathgate, Esquire Atty I D #: 91196 240-246 Market Street P.O. Box 791 Sunbury, PA 17801-0791 Telephone: (570) 286-7777 COUNSEL FOR PLAINTIFF CUMBERLAND ANALYTICAL ASSOCIATES, LLC " IN THE COURT OF COMMON PLEAS OF Plaintiff * CUMBERLAND COUNTY, PA. VS * CIVIL ACTION COLONIAL SURETY AGENCY, LLC, NO. 2009-8859 CIVIL TERM a/k/a COLONIAL SURETY COMPANY and COLONIAL SURETY COMPANY Defendant * COMPULSORY ARBITRATION AMENDED COMPLAINT The Plaintiff, Cumberland Analytical Associates, LLC, by and through legal counsel, Wiest, Muolo, Noon & Swinehart, files the foregoing Amended Complaint against the above referenced Defendant and in support thereof avers as follows: The Plaintiff, Cumberland Analytical Associates, LLC, is a duly organized and existing Limited Liability Company of the Commonwealth of Pennsylvania with its principal place of business located at 49 West Hollow Road, Middleburg, Pennsylvania, 17842. 2. The Defendant, Colonial Surety Company, is a corporation duly authorized to engage in the business of executing surety bonds, with its principal office and place of business located at 50 Chestnut Ridge Road, Montvale, New Jersey, 07645. 3. On or about April 14, 2008, the Plaintiff entered into a subcontract with D M E Construction Associates, Inc., (hereinafter referred to as D M E Construction). Under the terms of the Subcontract Agreement, Plaintiff was to perform work as a subcontractor, namely performing indoor quality monitoring during the removal of asbestos containing roofing material and VOC testing, on a project designated as Roof Replacement, Buildings 203 and 204, Naval Support Activity, Mechanicsburg, Pennsylvania on behalf of the Department of Navy, Naval Facilities Engineering Command, (hereinafter referred to as "the Project'). 4. As a condition of being awarded the bid for the construction on the roof replacement, D M E Construction was required to submit to the Department of Nary a payment and performance bond to assure that it would perform the construction contract and to assure that all subcontractors and materials suppliers performing work or supplying materials on the project would be paid. A true and correct copy of the Award Letter and Contractor's Bond is attached hereto, made a part hereof and designated as Exhibit "A". 5. In the event of D M E Construction's failure to pay suppliers and subcontractors, Defendant, Colonial Surety Company, by virtue of a surety bond issued on behalf of D M E Construction on the project, agreed to be liable for all such costs to the extent of the amount of the bond. 6. The Plaintiff, as a subcontractor on the project, was a third party beneficiary of the surety bond. 7. The Plaintiff performed work as a subcontractor on the project valued at Twenty-Seven Thousand Eight Hundred ($27,800.00) Dollars. 8. The Plaintiff submitted to D M E Construction invoices for the services that it rendered on the project. A true and correct copy of the invoices are attached hereto, made a part hereof and designated as Exhibit "B". 9. Despite repeated demands for payment, D M E Construction has refused to pay Plaintiff the sum due and owing. 10. On or about November 17, 2008, Plaintiff submitted to Defendant a written letter requesting payment for its services. 11. On November 18, 2008, Plaintiff received written communication from Defendant requesting information about the Plaintiff's job and services. 12. The Plaintiff subsequently provided to the Defendant all supporting documentation for Plaintiff's job and services. 13. After supplying the information to the Defendant, Defendant informed Plaintiff that it would investigate this matter. 14. On or about April 8, 2009, Plaintiff was copied on a written email from Defendant and the same indicated that Defendant has agreed to pay to the Plaintiff the sum of Twenty Thousand ($20,000.00) Dollars of the total Twenty-seven Thousand Eight Hundred ($27,800.00) Dollar claim and that Defendant was investigating the remainder of the claim. 15. The Defendant subsequently verbally promised the Plaintiff that its payment in the sum of Twenty Thousand ($20,000.00) Dollars would be processed in a prompt manner. 16. Despite repeated demands for payment, Defendant has failed to pay Plaintiff the sum of Twenty Thousand ($20,000.00) Dollars that it promised and agreed to pay Plaintiff. 17. Accordingly, Defendant is in breach of its agreement to pay Plaintiff the sum of Twenty Thousand ($20,000.00) Dollars. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of Twenty Thousand ($20,000.00) Dollars, plus costs and interest. Respectfully submitted, WIEST, MUOLO, NOON & SWINEHART BY: R e V. Wiest, Esquir Jame C. Bathgate, Esquire 240-246 Market Street P.O. Box 791 Sunbury, Pennsylvania 17801 Attorneys for Plaintiff DATED: January 5 , 2010 VERIFICATION I verify that the statements in this Amended Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Timoth bus as a member of Cumberland Analytical Associates, LLC Dated: January _L2,- , 2010 EXHIBIT "A" 10/28/2009 01:07 2158976932 PHILA ROICC PAGE 02/06 OEPARTMENT OF THE NAVY OFFICER IN CHAAOE NAVFAC CONTRACTS NAVAL SUPPORT ACTMTY 5450 CARLME PIKE P.O. BOX 2020 MECHANICMRG. PA 1705"786 11801MOSiC/dN 1 OCT 2007 DMZ Construction Associates, Inc. 126 old Field Road 9. Setauket, NY 11733 Subject: CONTRACT 1140085-07-C-4467, RZPLACZ ROOF, BUILDIN= 203 AND 204, NAVAL MPOR'T ACT'IVIT'Y, 142CHAMCSSM, PA Gentleman: Inclosed is a duplicate original copy of the contract. Before your company can proceed with on-site performance, you must furnish the following: (X) Acceptable Performance and Payment Banda. The performance bond shall be i00i and the payment bond stall be 503 of the contract price. The contract number must be annotated an the bonds. (Y) Acceptable Certificate of Insurance for the prime contractor that includes: a. The specified insurance coverage. b. An endorsement that any cancellation or material change adversely affecting the Government's interest shall not be effective for thirty (30) days. . e. The contract number referenced on all insurance certificates. ( ) Certification as to the percentage of work to be performed by the prima contractor. Upon approval of the above bonds axW certifications, you will be notified that you may proceed with on site work and a signed copy of the contract will be forwarded to you. 10/28/2009 01:07 2158976932 PHILA ROICC PAGE 03/06 N40005-07-C-4467 p. 2 upon receipt of this notice, your company should contact Lonnie Moyer at 717-605-2659 to arrange for the required pre-performance conference. Please address all correspondence to the officer in Charge NRVFAC Contracts, Naval Support Activity, 9450 Carlisle Pike, P.O. Sou 2020, Building 305, Code M081C, Mechanicsburg, PA 17055-0740. Sincerely, H. NIw Contract Specialist By direction Officer in Charge NAVFAC Contracts cc: Project Manager 10/28/2009 01:07 2158976932 PHILA ROICC PAGE 04/06 a1L OXStZUCtIW A¦OOes Moo. 101!!RT 'N » I?frwdlw M 126 old held Goad E. Satsnkst, M 11733 DUNINUMOt MIN b M - b a N r ME N y N l „? MA NOO nnra "Nays111 wove Moo OMAIMM . w?w do p*eseNarr 404 hMbiiw/ai/ddaWw ftd hwMWkI mMmbMwtfIN AMs ? OMMIOM.$ 2,895,000.00 r AMENONUIM 1 a/1S M"s4ra`"VlltW GUnka, WMddlMt 23/07 I. Bid Itao 001 as deaeribed by SolicitatLon fraber 040085-07-3-dws7 sud Amendment 0001 thereto. Z. The Contract shalt commence an 28 feptmbar 2007 aid be completed on 26 October 2008. This constitutes the award referred to in Block 11. 22.AriMW RAMOWI bA1DMIRMU ntOft $2,695,000.00 feu the attack" contract sward supploomt. 71. acaWW4MQRMw MVW" PA¦o12M¦NLgAnR000 SEE PArx? CiOMMM, ON 9"ft Irss s` br?i dowssliasf b a?sbs` a p a?ow dtewbasfdrbirr Ma4lasdildda? b+r?wpiwawWON d..Brrrw?INa>•II d ooft .rwl0fted A?Maa?rlldrlBbB? aabsllarssrdt ?AMwe?ad¦ardUosaaRs ?? l ga IBb/iaMasiib e l M aPMM?q aw t/sd?b?11?1?w w 70 J VIM AWAPW M z8 sip75007 oa..r 10/28/2009 01:07 2158976932 PHILA ROICC PAGE 05/06 Sam lkilillillill[mil?? Blat 23 AcwuW q od App mpiWm DM AE 1707111203 2379 0029 96200 0 OdIM 2D 7C4461 AMOAGM34 $1.2 44&0O AF 1707111300 2379 0321 9620! 0 060731 ZD 7CW7 APWADMIid $ "OM AG 1707111203 2579 din 9?20d d 016792 ?D 7G4447 A00MOOMSO S1JMA26A0 AM 170711130 2379 03n 96703 0 065732 2D 7CW AMMAOMI36 S 93,674.00 . 10/28/2009 01:07 2158976932 PHILA ROICC PAGE 06/06 ATKK 1. ATIM NO. 2. TYPE OF ease DA FMW PAGES AND AWARD ® SFxfO tIID {? ar PAWII N1aoe?o7?.1117 O fMMM1W WTI 24 JM 2W lot 2 WVWART. The 'oMer' onffha mmt be kh Fn w! 11 dby ofAeoor. No. a. CONTRACT NO. r 7. By !CODE 1. OFIIER TO OFFICER IN 04ARGE NAVFAC CONTRACTS NAVAL SUPPORT ACTIVITY, CODE MW C 5150 CARLISLE POT SW AS BLOCK 140.7 P.O. I= 200 BUILDING 305 PA 1 9. FOR or A RTION A. NAB M. Wit (WCMMrGILLS} CALL- 1 IL MHOFF 717 TIDN SEW • h 'dW even '!hidden WWVW 10. THE OF T!E TWX WOM-M W id RO)Ohp na, df>th: solicitation 9940066.07-2-4467 COMTACri F. Crsea 717-605-4645, fan 717-606-1619/Contra"160 Officer, 0. M. MOff 717-405-4579 Title: Replace Roof, evildi 203 and 104, Naval SMVVM Activity, Mecheniceb", M Scope of Works Thee work includes replacing the existing roofing system cc 11fts 203 and 204 including removal of f l b d as existing bui eck, removal o estos t-up and/or modified bitumen hoofing, repair of deteriorated coo containing roofing materials and tram6ita board, installation of roof dea9 inseiative and R M roofing. replacement of axis" street lights. installation of andeust tone and wall-mooned louvers, installation of exterior insulation and finish eysten and incidental related work. .fstimotad privet Ranges setweea $1,000,000 and 95,006,000. Number of Gaye in Contract. 240 with a 1 M*Wth 2006 start for W site work. Member of aid 1tc.ss one WAiea Code, 376140 Roofing Contractors $23 Million. Prospective ooatraetors suet register in the DOD Central Contractorhegiatration Database prior to award. eid0era are notified that failure to register may rosdec their firm ineligible for award. specifications and drawings will not be directly ppssoow?idea in a paper and copy forest or N Th dd l . e a ress for dowa CO•RO eading this solicitation from tee internee is https//seol.nsvfse.nsvy..i.i. All prosoactive bidders are encouraged ea register or the above rap site for tbie prmmnummat when specifications and drawings become available. Plan folders will be maintained on and can be printed from the web site. Notification at my changes to this solicitatlau Ii.e. amendmental atoll be safe eply on the web site. It is tberefors the bldder?9 te6p0s4ibi3ity to check the web site daily tore any posted Cbafgaa to the solicitation. This acquisition .hall be vnreatricted with a 100 avelvation preference for ma Scene Smell ansipess. Site visit by appointment. Contact Lonnie Mays at 717-005-2469. 11. TBIa 0W**dOf bane Perbh WM 99NIn JS ;rw7ft- drys and t Jim cakefdar days 9aoaM9p now la I . TM5 1, ice is Lift 12AL CONTRACTOR lIlQU M AND PA 900b84 129. CAUDC M DA (fl , k dolt W N* few Nov =frow fd" afirewd M &M 12&) 1S 13_ AOIDMIAL SOLWATON REgW43A9T& A. Propoe515 in a low anal ga won b pwlonm to W * nquinad are *0 at to ON s0edw h Mfg 8 by (hoary local %W 23 AfWAM 2007 (daK If Elite it a ceded diet sofI 11h . oMM w/ ba ple6 * ap W W Met Ina. SWW afw6lopw ca"WrA lp olfirs $haM bW 9n 1 111 b Dhow trim OQefof a nwna wed addfw, Min 6o1o1a10 n MM6W, and fie data pod *M DMus wag due. fB. Anaft gAMM ® is, ? a not fagf;j, C. AN ofl69s we a,bjede 1o the (1) work re**wn6lek, and (2) 00W poriNo N and dews lrePOP' raled Into soli "M in u lest or by ralesana. D. ? Pr y IM ftM 1 catehfdfr days ter Go9wnn96nt aocepwfce aver tie dale COM are due WN not be" nMan and *ft AMMMD FM TZM _ N5F17S10-01-156,1212 MM FAR lM 6RI xl.? U4 10/22/2009 21:14 2158976932 PHILA ROICC PAGE 02/09 flood No. CSC-213207 Payment Bond DATE BOND WRICI RSO P1Auat be writ or MW O INNo.: 90004MI malt dde d aenbaq 10/11/07 (?. AnaMeehas oe i.wr,,l Push mpo" b~ ax oft comes" r blrOr?lerwl Ie eeMleeca b atielep nilMes/w lae/e?w. k?deeM? M M wr 1er11eal? eleatlewee` n%WMENOft" 10YSONA"IMAW"1011,0VI00""ell0WAftftNQ*1dadb*mV1@ l WdOeltelleabMwdg1 w ?igh?oc ?oeraae" a . rmno w?¦ drwduery brc a? er Mo RMe Hawn M?O? ? ??' PRINCIPAL OA*d neon wW boomm pd*=Q 00 ConatruCtiOn Aaaociatf3e 124 Old Field Road E. Satauket, NT 11733 sI.NRf MIM Vim") OW bmditw a/ltaeaPO C70LOI m suRaTy COmmy so chestnut Ridge Road Montvale. N.7 07649 TYPE OF OR"40ZATION (r one) ? IM VMUAL ? PARTMIMIP O XMT VEMRE 91 CORP )RATMON STATE OF ORATION NY -----7 ---6911 CONTRACT DATE 09/29/3007 ---000 1 00 W40083-07-C-4467 0B GATTON: We,, ft Ptbetpd w d *Am" el, ew /wy awrd b"'WW WAM a AM" PE Mdbrta W ft OeMwtaewp M On dews pert ewe PW MrANlt dOe PWW MIA we bbd ow WkV% m MW aeeMl m UVW1016w, Ud a?e.leblMp 10110 Ibaiawr. dlele ? lalerea cweapMrss ed? w w• WAO" IMA Mischa led a".Mr10 Al Nfe111M1'7?poYY?1?d 10Ywe?/ M wMwti.r?cy'a?br hpwC10oafateweys}M wbw cr wrMM aPinM?ryv MdewFtrddJlrpwP10M.aeeftflrcyMmdefbcKMONANummombalePWAN LarMp"mmdda-elleeew*mftM"? d7flesm o"o imp d 4bdgl w bleeele4 M M of Idler is h Ili Mww1e/fw pe"d eue? CONDTTMON& Two"" aageaol M Vw M the ftilltdpltl plgMli "Ifaee pefelelltb r pews E a AecdnlrlaeeMpgllt rIe Mle?d r a ?o+oww d M PIilC?e1 far fullYtil11 Ullor. nalelY r bar111 fob poeaerbt d h eiaiY pre141M tar b h varael IIwIrNe/ abel?, a"a elgr wbe11w1 rl1e111ce11alle d fhem?eaet wlel eldleeWAn* era neat NOW d IWO Ieed bd" M h swdyo w Mdaa WITNESS: The Pnnclpel wd3lewjr "saran fide P*pm boob end asl.1 sm an III -- delve 1. 1. y + 1. / R moo ceppemb it i (goo COMPORATESUMTyp" NAME i COUNIAL SQWT COMA" STATE OF IN LNBRM LWf AaORESS so Chestnut Ridge Road. Montvale. NJ - PA ;873,000.00--- SIGNATU E(MI SaM > MAME(s) i 1. S erryanae Depirzo -Nkz TMAS) (r"wm Ar-tornsy-in-Pact Ai ALtano Bond Ads. PENAL HM OF Body 3.0/22/2009 21:14 2158976932 PHILA ROICC PAGE 03/09 CORPORATE OURETY" ??„M a ?rwar Rfl?.a.e.e Coed et As U S STATE OP N UAORM U W AOORES>I ?OseOraanri?l?rWa IQYr?- `$2, 074, 000.00 ?_ S10NAYlJRE(s1 ? 1 • +`' ?? Z.I ?' m NAIYE(S) a T1. Anthoi?? iaiasloo Z gi Alfaao TITLEM (Typ@M Attorney-in-Pact •Obd Adel. -- - NAM! 8 _ _ . - BTATii OF NV L{AiIIL! Y1f i ADDIIESS CA SIGMTUFMM) 0' MAW) 21 TnixM gypsm i __ .., .. .., _ _ ..... _..._ ATE OF M UWT 1 VUR a LUlYL„Y ADDRESS ....?_.. .. .. ._ ..._. ..._ - 91GNA'tURE(8) 1 ,.. NAMB(8) A 1. TTAM (TYPOO ! . NAi1M a _ -?eeasse- NAMEMA 1. TmEm Rvem.l. NAM A I - AOOFIM SIGNATLIMM 1. 2 STATE OF N L.IAMLITY LU T 2 STATiOFN IUAMLITYUNT 1 2 comorm Sod a momm Sod CO9ma sow a I ADO M .. - STATE OP 14 UAM" UNT 3m3mTURE(S) i 1• 2. INS 7. ThN lf11R idf fr P?dew d Pam ?N Mlerrlld n+M1IM1, Is TIi?JCT10NE dwsl/UM'sl1lTyf?r onto fla d b ? hoof a?s! fa bdYr u.rwlwn?pryrnMl0eedi?IMiM1?MRtIwAeldA?p??1f1? IdM?MIdMsNnMr? N ? 1? ? U.SA. '??0? Anp alll?l iaM fi fsn wA rqi? fr vdM? sspersl dfls AdwMMw d Ai?iar S?rlva pq 11111rN brtrlfrll swsllw w bf!eNfA saos0l?fit AflMrt d b1AYl01IM 4w*PWdWI4aw.Mfte euMdWlb lswMdid Z MrMt>M AA MM RMII/ as/ bs?bsss addlar d b i•?ia?d loft Mr bead. ift Oww?a n+nq I flf M ?Po P*wW a Vw ra dMs ftm An nAiabal d IM I ?i / b i M AW sMlrtMSy b!idI111ra1 m?eenib!? hk brndd M ? I? a pPs?o?? ? hpMW A pNr? eA oeDi? lM» w rM4nls?lUq sect ?miY aAdaw dwariN ¦ flel wpMNMMM le net s df?f i ds ar ?obd l Cefmsmm mu" M MM sl!e? fAk rislr map mb soft vwam erso elMar d"epparbe b vkvd 'GtiF- -- s/n"fest MO lm li Nar a. W CWOWSMM 0WAM*0 sow M swabs W40 soW a fu ora?d?r?aYAiin waiMPoOmbe s" 13Mabnw!Idf1e Tassryti setsdapisuff swtlM MywAMM fel rdfdn fM iaNdon fdd fisrYt 1Mnss nob flea OM eapesr sn+r f. lyps M nsas sow MsdMdi oawin Npiq fi bond b fr NOW !rs4 flex nslMe nel e/iMefs 111e1 aoren M rM /MOw AID tam perbbA ? sa.h? s..r:l ?.rd.a •ooi?oA+ere et?rvpes>• M f¦.?. . 10/22/2009 21:14 2158976932 PHILA ROICC PAGE 04/09 C( ON1AL SURETY COMPANY GWAN%AL PON OP MOM W KMW AN un by Tbow A Sam The COLONIAL SLWAI T COWAfff. a oaP. v A 0 dao asearbd sad SON" urt I 1lte laws d 1hr Ogttattatwe? d P0--m to tlb mW hoWN an sdinkAdIndin GAlw M MoaMale, Rerun Go Aft NJ dor by so" pwgar I maim Qw4 tda and appow MWNtb Nuroila or Antlioty J. 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'/e x Aesofrar; Mal tm proddN4 wW Vlo& pwddm& ant Saammy err gV Amd" Seaelery aba$ bs gad r Mntby watbd wUb *S power and aalltorlgl 1o aAtvld any err err metr srMtbib pewala to Atietaey btratd fb rspraaaat gad got for and en lashes d >M Can,pasy tadtpo! tb Rr friO,Mq pteMM?ottw "vadhm t AMurnvpw r-iaat AMerrwtbrlr.e mW be tr+be b/ peers gad aaMtMw fbr end In the patine of d an babas of the Catpettr, N 4no^ a-1, 1 1-ds "dtelray my and d boft% woo29binvo^ asaftder areaaad• of btdm* and GOO oundHisnal or ehigMery utderlol*" err any d 0 noRON aed doemooor oebod" or bnabta " go COMP"Is MbRlty even waft and any nam bveua bA an writ d b fr my =0 Aft my b i dW be Madre am ft Cosipm as S vir" by the ftvd wK bed sealer and atbrbd by the capaab Saawtax' Tir mod as omperarb ssd is lag aowie dbwd Mtg 46 drr of lbalbbdnr A b, 290E gttt.fr c6; Side of New JerseyW County tee _._ re of serven y1.4 -0 av .4-z2v A ?* VNPZ Non" go NOS ggti drib at Searaa?m b the tsar 7000, bade" nm !1 BrAWFOOMI Mb "*saw T YAMS Ntobm peraeaeNJ boon IS, ma to boom pewee Wo 00"Ass us wtmbt buboserd w fharird an behr of •o ost1, - * rebt omnd oboe using go swealadlL THEMASNAMUM No" AftftWMft4fNW4A" pwde s(;IJ Thwu SMnmr Nl*" PUM Dopy etAdarwy bnrmeyadd Ooatpatt* and mwbrhalitar eerOly titer M1e Mld`powar dal NNW plasm In f Assl I do hereby hewer wr* 1Aat Obe CaOdaarbn d lds pewr d Adonwy b d/Nd oW sealed by fooskuls aaN? and br the lv?-n III of thehORr rgaslo/se ed00bbd by to ft" of Mmebn of fee OOlanA>f bead Catapasy art a rttaebt0 duly called and ea the of li I gad that raid maebal n bn not been as "all or malledt. be III Or prMMbd by to t o porter d Aalenla of dit Q pamft% and VO wwb pAMOa bwbtie sip' lu b" and sod duo be ve" seal wft% lapse 1lAe Ogrpeg OWL* C 4M under vW hen# w10 W so of add Comport at Mertb?ale? Now Jersey tl _ 11 dq of orsmar ?qL_. Foi xrot,rM err N,r1.1111CNr d tMr q,a? d A.MNy r?u n,a «w aa1) STl.A7R/ W r? 'of 'fin P.yar nl ANMM&f EM P.. MfbM f WW N rs At. ?Ny. i?OM?MrKM MNI ?MUw d M ?.vwt• .? .MtA or M?.* •. •.nENN. '10/22/2009 21:14 2158976932 PHILA ROICC PAGE 05/09 State of Now Jersey County of Bwgm On this 1 i? of pauggy . In the year 2007, bsfon me, Th*r Simmons, a platmy Putac, psrsonalry cane Shwryanns DORM,10mm 10 mm 16 bs art Aa msyanfact of Coionial'ur%ty CompOW9 vo owpw~ dsscribsd in t1w soknowlsdwd that ste eotecuMd the within within iratnment, and she in ournsnt so the set of said Colonial Surety Company in accvndsncs with authority duly confined upon her bay said Company. Theresa Unr-mm A Notary Public of Now Jsrssy My Comndssion lams 9 i plembsr 2, 2010 Theresa Simmons Notary Public 10/22/2009 21:14 2158976932 PHILA ROICC PAGE 06/09 COLONIAL SURETY COMPANY Dunaamaii. Pw- WIVI -w - Ina IM- L IABILZIM a SUMM 'Steely and sari" .................... 6 13Ap.1el Cash In Offko a say" ............. • • • • • 1.s0..m Aeentad W*om t a MvkW s .. ........... 233.926 Ptwniuttta a Anna BMMtoaa RaoakrOW .... s"Aft 00m Mash .......................... IaW713 . UW Admithed AaMM ............... 22.131.770 Amman OW Wnanlad PMMkNnw ..............$4,598 W omm Rasatrae ........................... 7AILO 0 other UdAN Iaa ........................... 1.191,463 ca l" Ndd ............................ S"An enpIW stank ............................. 3r0 oM Swphat ................ 5.730.3M Tom Ud NUS a Sukp" .. ............0.131.779 'lipid. NAd fRaw M YMI? 011 t001w O?IaYOy ? ttOtk0101 ?fJ0ad1 ? t7?lA ??? STA-n or NVAI IIR Y aw CoLm" OP NlIIOEll k V ft w PANltllata. PlotldnM of COLOPNAL BUFWN 00100 Y. do 1NkI'll 1 DWWV 01110 taloOslt 8 Is a hk3. tno and m val *ON al the Fwancitl Sts- i of add Canptrll, as of Dsownhw 31.200L w4 Wn'Noe V*M% OR l two* sipwd this statwnwtt a Llekuwls. 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CSC-S" Of 2 ! ?'uwar 10/22/2009 21:14 2158976932 PHILA ROICC PAGE 09/09 i 30 Chestnut Ridge Road. mor'"le, Now jersey 07-645 Phone: 201-573-8788/800-221-3662 i Fam 201-573-1062/800-743-1062 - I www.colonialsurety.com t i f { i Stu 'oty '' .Fide--,h t it EXHIBIT "B" CUMBERLAND ANALYTICAL ASSOCIATES, LLC 49 West Hollow Road !P%6 Middleburg, PA 17842 Phone: 570-541-2183 associates, LLC Fax: 570-837-0595 WMC E To: DME Construction Invoice Number: 08 -1164 P. O. Box 482 Invoice Date: Aug 8 , 2008 Port J efferson, NY 11777 Due Date: Sept 8, 2008 Terms: Net 30 Your P.O.: NA CAA Job No.: 08-1714-016 Hygienist: Michael Dellaporta George Wagner Quantity Description Unit Price Total ASBESTOS AIR MONMRING Dept. of Navy Mechanicsburg, Pennsylvania 1 04/14/2008 - Time On: 7:00 Time Off. 15:00 $385.00 $385.00 1 04/15/2008 - Time On: 7:00 Time Off. 15:00 $385.00 $385.00 1 04/16/2008 - Time On: 7:00 Time Off. 14:00 $385.00 $385.00 1 04/17/2008 - Time On: 7:00 Time off.- 14:00 $385.00 $385.00 1 04/18/2008 - Time On: 7:00 Time Off: 12:00 $385.00 $385.00 1 04/22/2008 - Time On: 7:00 Time Off: 10:00 $385.00 $385.00 1 05/13/2008 - Time On: 9:30 Time Off: 15:00 $385.00 $385.00 1 05/14/2008 - Time On: 7:00 Time Off: 12:00 $385.00 $385.00 1 05/17/2008 - Time On: 7:00 Time Off. 11:00 $385.00 $385.00 1 05/21/2008 - Time On: 7:00 Time Off. 11:00 $385.00 $385.00 1 05/23/2008 - Time On: 7:00 Time Off: 11:00 $385.00 $385.00 1 05/30/2008 - Time On: 7:00 Time Off. 12:00 $385.00 $385.00 1 06/01/2008 - Time On: 7:00 Time Off: 15:00 * * * * * $435.00 $435.00 1 06/02/2008 - Time On: 7:00 Time Off: 12:00 $385.00 $385.00 1 06/03/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 06/06/2008 - Time On: 7:00 Time Off: 15:00 $385.00 $385.00 1 06/07/2008 - Time On: 7:00 Time Off: 15:00 ***** $435.00 $435.00 1 0 6/08/2008 - Time On: 7:00 Time Off: 15:00 * * * * * $435.00 $435.00 1 0 6/09/2008 - Time On: 7:00 Time Off. 15:00 $385.00 $385.00 !9L associates, LLC CUMBERLAND ANALYTICAL ASSOCIATES, LLC 49 West Hollow Road Middleburg, PA 17842 Phone: 570-541-2183 Fax: 570-837-0595 1 06/10/2008 -Time On: 7:00 Time Off: 15:00 $385.00 7 $385.00 i 1 06/11/2008 -rime On: 7:00 Time Off: 12:00 $385.00 $385.00 1 06/12/2008 - Time On: 7:00 Time Off: 14:00 $385.00 $385.00 1 06/13/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 06/16/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 06/17/2008 - Time On: 7:00 Time Off: 14:00 $385.00 $385.00 1 06/24/2008 - Time On: 7:00 Time Off. 13:00 $385.00 $385.00 1 06/25/2008 - Time On: 7:00 Time Off: 13:00 5385.00 $385.00 1 06/2712008 -Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 06/28/2008 - Time On: 7:00 Time Off. 13:00 ***** $435.00 $435.00 1 06/30/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 07/01/2008 - Time On: 7:00 Time Off: 14:00 $385.00 $385.00 1 07/0212008 - Time On: 7:00 Time Off: 14:00 $385.00 $385.00 1 07/03/2008 - Time On: 7:00 Time Off: 14:00 $385.00 $385.00 1 07/08/2008 - Time On: 7:00 Time Off: 14:00 $385.00 $385.00 5 VOC test analysis 06/06/2008 - 06/10/2008 $499.00 $2495 Total Amount Due This Invoice $15785.00 All Invoices, unless otherwise agreed upon, are expected to be paid in fail within thirty (30) days from date of invoice. A 1.5% per month finance charge will be added to past due accounts over thirty (30) days. REMITTANCE ADVICE FOR Invoice #08-1164on 0810=008 Please detach and send with remittance to: Received From: DME Construction Cumberland Analytical Associates, LLC Balance Due: S_ 15785.00 49 West Hollow Road Amount Paid: $ Middleburg, Pennsylvania 17842 CUMBERLAND ANALYTICAL ASSOCIATES, LLC 49 West Hollow Road i9k Middleburg, PA 17842 Phone: 570-541-2183 associates, LLC Fax: 570-837-0595 9 MCE To: DME Construction Invoice Number: 08-1182 P. O. Box 482 Invoice Date: Oct 20, 2008 Port Jefferson, NY 11777 Due Date: Nov 20, 2008 Terms: Net 30 Your P.O.: NA CAA Job No.: 08-1714-016A Hygienist: George Wagner Quantity Description Unit Price Total ASBESTOS AIR MONITORING Dept. of Navy Mechanicsburg, Pennsylvania 1 08/04/2008 - Time On: 6:30 Time Off. 14:00 $385.00 $385.00 1 08/07/2008 - Time On: 6:30 Time Off: 14:00 $385.00 $385.00 1 08/08/2008 - Time On: 6:30 Time Off: 14:00 $385.00 $385.00 1 08/13/2008 - Time On: 6:30 Time Off. 14:00 $385.00 $385.00 1 08/14/2008 - Time On: 6:30 Time Off. 14:00 $385.00 $385.00 1 08/18/2008 - Time On: 6:30 Time Off: 14:00 $385.00 $385.00 1 08/19/2008 - Time On: 6:30 Time Off: 14:00 $385.00 $385.00 1 08/20/2008 -Time on: 6:30 Time Off. 14:00 $385.00 $385.00 1 08/21/2008 - Time On: 6:30 Time Off: 14:00 $385.00 $385.00 1 08/26/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 09/03/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 09/04/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 09/05/2008 - Time On: 7:00 Time Off. 13:00 $385.00 $385.00 1 09/08/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 09/10/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 09/11/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 09/15/2008 - Time On: 7:00 Time Off. 13:00 $385.00 $385.00 1 09/17/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 09/19/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 1 09/22/2008 - Time On: 7:00 Time Off: 13:00 $385.00 $385.00 . .. !9L associates, LLC CUMBERLAND ANALYTICAL ASSOCIATES, LLC 49 West Hollow Road Middleburg, PA 17842 Phone: 570-541-2183 Fax: 570-837-0595 1 09/23/2008 - Time On: 7:00 Time Off. 13:00 1 09/24/2008 - Time On: 7:00 Time Off: 13:00 1 09/25/2008 - Time On: 7:00 Time Off: 13:00 1 09/29/2008 - Time On: 7:00 Time Off: 13:00 1 09/30/2008 - Time On: 7:00 Time Off. 13:00 1 10/02/2008 - Time On: 7:00 Time Off: 13:00 1 10/06/2008 - Time On: 7:00 Time Off. 13:00 1 10/14/2008 - Time On: 7:00 Time Off: 13:00 1 10/17/2008 - Time On: 7:00 Time Off: 13:00 PID VOC test analysis $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $850.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.00 $385.OQ $385.00 $850.00 Total Amount Due This Invoice 512,015.00 All Invoices, unless otherwise agreed upon, are expected to be paid in fall within thirty (30) days from date of invoice. A 1.5% per month finance charge will be added to past due accounts over thirty (30) days. REMITTANCE ADVICE FOR Invoice #08-1182 on 08/08/2008 Please detach and send with remittance to: Received From: DME Construction Cumberland Analytical Associates, LLC Balance Due: S_ 12.015.00 49 West Hollow Road Amount Paid: S Middleburg, Pennsylvania 17842 CUMBERLAND ANALYTICAL ASSOCIATES, LLC, Plaintiff VS COLONIAL SURETY AGENCY, LLC, a/k/a COLONIAL SURETY COMPANY and COLONIAL SURETY COMPANY Defendant * IN THE COURT OF COMMON I~S,EA~OF, * CUMBERLAND COUNTY, PQ. ` a ~, ~' ~c r; t 1;.-+ ~ * a: tz~ ~..'rn * CIVIL ACTION ~= ~_ ; -" r^~, * . ~~ ~ J * NO. 2009-8859 CIVIL TERI~~ ~_' ,;~ ~ * ,.~ , '~ .. c.a :p * a~ -t * COMPULSORY ARBITRATION PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS The Plaintiff, Cumberland Analytical Associates, LLC, by and through legal counsel, files the foregoing Answer to Defendant's Preliminary Objections and in support thereof avers as follows: 1. Denied. The Plaintiff has filed a lawsuit against Defendant, Colonial Surety Company, sounding in Defendant's breach of its promise to pay the Plaintiff the sum of Twenty Thousand ($20,000.00) Dollars under a payment bond that Colonial issued on a project at the Naval Support Activity Base in Mechanicsburg, Pennsylvania. The Plaintiff was a third party beneficiary under the surety bond. 2. Denied. The averments in Paragraph 2 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. I. PRELIMINARY OBJECTIONS BASED UPON LACK OF JURISDICTION OVER THE PERSON. 3. Paragraphs 1 through 3 of Plaintiff's Answer are hereby incorporated herein by reference as if set forth in full. 4. Denied. The averments in Paragraph 4 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. By way of further answer, the Plaintiff correctly identified Colonial Surety Company as the Defendant to this proceeding and served both the original Complaint and Amended Complaint on Colonial Surety Company. 5. Denied. The averments in Paragraph 5 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. 6. Denied. The Plaintiff has identified Colonial Surety Company as a party to this proceeding. 7. Denied. The Plaintiff is without sufficient information or knowledge to form a belief as to the truth of the averments in Paragraph 7 of the Defendant's Preliminary Objections. In the event that it is determined that Colonial Surety Agency, LLC has no relationship to Colonial Surety Company then Plaintiff will dismiss the action as to only Colonial Surety Agency, LLC. 8. Denied. The averments in Paragraph 8 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. By way of further answer, the Plaintiff has stated a claim against Colonial Surety Company in its Amended Complaint sounding in breach of a promise to pay. WHEREFORE, the Plaintiff prays that this Honorable Court overrule the Defendant's Preliminary Objections. II. PLAINTIFF'S AMENDED COMPLAINT AGAINST COLONIAL SHOULD BE DISMISSED WITH PREJUDICE. 9. Paragraphs 1 through 8 of the Plaintiff's Answer to Defendant's Preliminary Objections are hereby incorporated herein by reference as if set forth in full. 10. Denied. The averments in Paragraph 10 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. By way of further answer, the Plaintiff clearly identified Colonial Surety Company as the Defendant in the original pleading as well as the Amended Complaint. 11. Denied. The averments in Paragraph 11 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. By way of further answer, the Plaintiff has not attempted to add a new party to this proceeding. Rather, the Plaintiff's Amended Complaint merely clarifies the proper designation of the Defendant, Colonial Surety Company. 12. Denied. The averments in Paragraph 12 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. By way of further answer, the Plaintiff had not added a new party to the proceeding. Rather, it has merely clarified a party designation. 13. Denied. The averments in Paragraph 13 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. A party is permitted to file an Amended Complaint as a matter of right within twenty days after service of Preliminary Objections pursuant to Pa.R.C.P. 1028(c) (1). 14. Denied. It is specifically denied that Colonial Surety Company is being added as a new party Defendant. By way of further answer, the Plaintiff is merely attempting to clarify the proper designation of the Defendant. 15. Denied. The averments in Paragraph 15 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. WHEREFORE, Plaintiff prays that this Honorable Court overrule the Defendant's Preliminary Objections. III. PRELIMINARY OBJECTIONS PURSUANT TO RULE 1028(a)(1). 16. Paragraphs 1 through 15 of Plaintiff's Answer to Defendant's Preliminary Objections are hereby incorporated herein by reference as if set forth in full. 17. Denied. It is specifically denied that Plaintiff has never properly served Colonial Surety Company. By way of further answer, on December 31, 2009, Larry Miller, Esquire, accepted service of the original Complaint on behalf of Colonial Surety Company. A true and correct copy of the signed Acceptance of Service Form is attached hereto, made a part hereof and designated as Exhibit «A» 18. Denied. The Defendant has already previously accepted service of the original pleading in this matter. 19. Denied. The averments in Paragraph 19 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. WHEREFORE, Plaintiff prays that this Honorable Court overrule Defendant's Preliminary Objections. IV. PRELIMINARY OBJECTIONS BASED UPON LACK OF SUBJECT MATTER JURISDICTION OVER THIS MILLER ACT CLAIM. 20. Paragraph 1 through 19 of Plaintiff s Answer to Defendant's Preliminary Objections are hereby incorporated herein by reference as if set forth in full. 21. Denied. The averments in Paragraph 21 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. 22. Denied. The averments in Paragraph 22 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. 23. Denied. The averments in Paragraph 23 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. 24. Denied. The averments in Paragraph 24 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. By way of further answer, the Plaintiff's action is based upon the Defendant's breach of its promise to pay under a surety bond in which the Plaintiff was a third party beneficiary. WHEREFORE, Plaintiff prays that this Honorable Court overrule Defendant's Preliminary Objections. V. DEMURRER PURSUANT TO RULE 1028(a)(4). 25. Paragraphs 1 through 24 of the Plaintiffs Answer to Defendant's Preliminary Objections are hereby incorporated herein by reference as if set forth in full. 26. Admitted. 27. Denied. The averments in Paragraph 27 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. 28. Denied. The averments in Paragraph 28 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. 29. Admitted. 30. Denied. The averments in Paragraph 30 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. By way of further answer, it is improper for the Defendant to raise the issue of statute of limitations as the same can be asserted only in a responsive pleading as a New Matter under Rule 1030. Additionally, the Plaintiff s claim is based on a breach of a promise to pay which is a four (4) year statute of limitations. 31. Denied. The Plaintiff incorporates Paragraph 30 herein by reference as if set forth in full. WHEREFORE, Plaintiff prays that this Honorable Court overrule the Preliminary Objections of the Defendant. VI. PRELIMINARY OBJECTIONS PURSUANT TO RULE 1028(a)(2). 32. Paragraphs 1 through 31 of Plaintiff's Answer to Defendant's Preliminary Objections are hereby incorporated herein by reference as if set forth in full. 33. Denied. The Plaintiff has attached a copy of the Award document and Payment Bond. Additionally, the Plaintiff sets forth the Defendant's promise to pay in Paragraph 14 and 15 of Plaintiff s Amended Complaint. 34. Denied. The averments in Paragraph 34 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. 35. Denied. The averments in Paragraph 35 of the Defendant's Preliminary Objections contain conclusions of law to which no response is required. WHEREFORE, Plaintiff prays that this Honorable Court overrule the Preliminary Objections of the Defendant. Respectfully submitted, WIEST, MUOLO, NOON & SWINEHART Dated: February ~ , 2010 BY: Rog V. Wiest, Esquire ~~' ames C. Bathgate, Esquire 240-246 Market Street, P.O. Box 791 Sunbury, Pennsylvania 17801 Attorneys for Plaintiff CUMBERLAND ANALYTICAL ASSOCIATES, LLC, Plaintiff VS COLONIAL SURETY AGENCY, LLC, a/k/a COLONIAL SURETY COMPANY, Defendant * IN THE COURT OF COMMON PLEAS OF * * CUMBERLAND COUNTY, PA. * * CIVIL ACTION * * NO. 2009 - 8859 Civil Term * * COMPULSORY ARBITRATION * ACCEPTANCE OF SERVICE The undersigned, being authorized to do so, hereby accepts service of the Complaint in the above-captioned matter on behalf of the Defendant~/,• Colonial Surety Company. ' l ,- ? ~ /G ~ a .Miller, Esquire ~ ~~1~~ Dated: /2/~/'~~ r-- ° - ~, 0 `17 ES ~- r... `~ ~ 2* t :. '~ ~ ~ f V "'G •,, FILED-i.%~ ~;G 2010 FCII 1 `~ P1~ 2' S ;3 ~~ ~ Y =~~ .~;_, LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 1423 State Road Duncannon, PA 17020 Telephone: [717]957-2828 CUMBERLAND ANALYTICAL ASSOCIATES, LLC Plaintiff v. COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY Defendant • Attorney for: COLONIAL SURETY COMPANY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2009-8859 Civil Term LOCAL RULE 2 0 8 . 3 (a) (2 ) NOTICE No judge has ruled on any other issue in this case. ~,: DATE: February 18, 2010 By: R ~ L. MILLER orne for Colonial Surety Company FiLFu -;~i; ~i-iCC 2C1~ FLT i 9 ~'r~ Z~ ~~ 1.1~ f~~ `._ 1 .:lti. 1• ..14 LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 1423 State Road Duncannon, PA 17020 Telephone: [717]957-2828 CUMBERLAND ANALYTICAL ASSOCIATES, LLC Plaintiff Attorney for: COLONIAL SURETY COMPANY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2009-8859 Civil Term v. COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY Defendant AFFIDAVIT OF WAYNE NUNZIATA IN SUPPORT OF COLONIAL SURETY COMPANY'S PRELIMINARY OBJECTIONS 1. I, Wayne Nunziata, am the President of Colonial Surety Company ("Colonial"). 2. I have personal knowledge of the facts related to this case and I therefore am in a position to submit this Certification. 3. I am competent to testify as to the truth of the facts set forth herein. 4. Colonial issued the Miller Act Payment Bond, Bond No. CSC-215207, to DME Construction Associates ("DME") for the federal project in Mechanicsburg, Pennsylvania. 5. Colonial has no relationship to "Colonial Surety Agency, LLC." 6. Colonial has never traded nor done business as "Colonial Insurance Agency, LLC." 7. "Colonial Surety Agency, LLC" is not Colonial. 8. Colonial Insurance Agency, LLC is a separate entity in Cooperstown, New York. 9. Plaintiff has not correctly sued Colonial on the payment bond as Plaintiff has failed to name Colonial as a party defendant. 10. Colonial was not named as a party defendant in Plaintiff's Complaint. 11. Colonial never consented to being added as a party defendant in this case. 12. Only federal courts have jurisdiction to hear a payment bond claim against Colonial on a federal Miller Act payment bond. 13. Miller Act suits must be filed within one year of a claimant's last date of work on the bonded job. 14. Plaintiff failed to file suit within one year of its alleged last date of work. 15. Colonial never agreed to an extension of time nor waived the statute of limitations. 2 16. Partial payments or promises of payment do not toll the running of the statute of limitations. See Restatement of Security X120. 17. Colonial never agreed to pay Plaintiff $20,000. 18. Plaintiff and its counsel know that Colonial never agreed to pay Plaintiff $20,000. 19. The averment that Colonial agreed to pay Plaintiff $20,000 is completely false. 20. Colonial had neither any oral nor written agreement with Plaintiff. 21. Plaintiff never discussed its claim with Colonial. 22. Colonial never promised to pay Plaintiff any portion of its claim. 23. Plaintiff and its counsel have falsely averred that Plaintiff had an agreement with Colonial. 24. Pursuant to the applicable statute of frauds, a contract creating a surety obligation is unenforceable as a contract unless in writing. See Restatement of Law of Suretyship and Guaranty at X11. 25. Colonial never entered any written memorandum that promised to pay Plaintiff. This Affidavit is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to 3 02-18-10 01:14pm Fram- T-498 p.001/001 F-033 authorities, which provideB that if T krlowiagly make fa~,se a~rermente, Y may be suYi~ ect to criminal penalties . DATE; February 16, 2010 '~ ,,, ,, Hy; ~+ A 4 CERTIFICATION FOR FACSIMILE SIGNATURE The undersigned attorney, offering the attached, certifies that the affiant or person signing the document acknowledged the genuineness of the signature and that the document or a copy with an original signature affixed will be filed if requested by the Court or a party. I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. l DATE: February 18, 2010 gy; LA RX L. ILLER CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing AFFIDAVIT upon counsel of record this 18th day of February, 2010 by placing the same in the United States Mail, 1sT CLASS and CERTIFIED mail, postage prepaid, addressed as follows: James C. Bathgate, Esquire Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 ,. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) ---- -------------- -------------------------------------------------------------------------------------------- CAPTION OF CASE 0 n`' (entire caption must be stated in full) ~ o ''~ m ~ ~~„ CUMBERLAND ANALYTICAL ASSOCIATES, LLC ~'-J-' .~_ ~ ~ ~~ ~-~ `I: a-=, W ' ~ ~~ ~ ~c COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL 2009-8859 Civil T~ ~ No. SURETY COMPANY 0 „~.. ..~ 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Colonial Surety Company 2. Identify all counsel who will argue cases: (a) for plaintiffs: James Bathgate, Esq., Wiest, Muolo, 240-246 Market Street, Sunbury, PA 17801 (Name and Address) (b) for defendants: Larry L. Miller, Esq., 1423 State Road, Duncannon, PA 17020 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Date: 2/24/10 Print your name Colonial Surety Company Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. .~2. CUMBERLAND ANALYTICAL ASSOCIATES, LLC * IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PA. VS CIVIL ACTION COLONIAL SURETY AGENCY, LLC, NO. 2009-8859 CIVIL TERM a/k/a COLONIAL SURETY COMPANY and COLONIAL SURETY COMPANY Defendant * COMPULSORY ARBITRATION CERTIFICATE OF SERVICE AND NOW, this 17m day of March, 2010, I, James C. Bathgate, Esquire of the firm of Wiest, Muolo, Noon & Swinehart, attorneys for the Plaintiff, hereby certify that I, this day, served Plaintiff's Answer to Defendant's Request for Admissions; Plaintiff's Answer to Defendant's Request for Production of Documents; and Plaintiff's Answers to Defendant's Interrogatories, by depositing a true and correct copy of the same in the United States mail, postage pre-paid, at Sunbury, Penns,, Jylvania, addressed as follows: - ~, Larry L. Miller, Esquire - - MILLER LAW OFFICES, P.C. ;`~; ~ ~ - 1423 State Road ~ ~-, _~ ~ , Duncannon, Pennsylvania 17020 `-~ .. `==~~ c.~ rya -t Respectfully submitted, WIEST, MUOLO, NOON & SWINEHART BY: am C. Bathgate, Eskµ~'re I.D. .91196 240-244 Market Street P.O. Box 791 Sunbury, PA 17801-0791 (570) 286-7777 COUNSEL FOR PLAINTIFF DATED: March 17, 2010 x , ~i _~ ~ ~,- T~, .:L. ,,RV :, -~, Gi.`I ' !~i`~ 1 !` LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 1423 State Road Duncannon, PA 17020 Telephone: [717]957-2828 Attorney for: COLONIAL SURETY COMPANY CUMBERLAND ANALYTICAL ASSOCIATES, LLC Plaintiff v. COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2009-8859 Civil Term COLONIAL SURETY COMPANY'S MOTION FOR SANCTIONS AGAINST PLAINTIFF, PLAINTIFF'S ATTORNEYS, AND THE WIEST, MUOLO, NOON & SWINEHART LAW FIRM Colonial Surety Company ("Colonial"), by and through its counsel, seeks sanctions against Plaintiff, Plaintiff's attorneys, and the law firm of Wiest, Muolo, Noon & Swinehart based upon their wilful violation of Rule 1023.1(c) and, in further statement of Colonial's claims, it avers the following: 1. On December 29, 2009, Plaintiff, Plaintiff's attorneys, Roger V. Wiest and James C. Bathgate, and the law firm of Wiest, Muolo, Noon & Swinehart knowingly filed a frivolous complaint against Colonial that attempted to state a claim against Colonial on a federal Miller Act payment bond after the statute of limitations had expired. 2. On January 4, 2010, Colonial provided notice pursuant to Rule 1023.1 that the complaint was frivolous in that it was untimely filed (after the expiration of the one year Miller Act statute of limitations) in the wrong court (federal courts have exclusive jurisdiction over Miller Act suits). See Exhibit "A" hereto. 3. On January 14, 2010, Plaintiff filed an "amended complaint" which made additional false and frivolous averments including, that Colonial had promised payment to Plaintiff. 4. By letter dated January 15, 2010, Colonial advised Plaintiff, and its attorneys, that the averments of the amended pleading, paragraphs 14 and 15, were entirely false. See Exhibit "B" hereto. 5. By letter dated January 18, 2010, Colonial's counsel sent a follow-up letter to Plaintiff's attorneys regarding the frivolous pleading. See Exhibit "C" hereto. 6. By letter dated January 20, 2010, Colonial's counsel sent another follow-up letter to Plaintiff's attorneys regarding the frivolous pleading. See Exhibit "D" hereto. 7e By letter dated February 19, 2010, Colonial's counsel sent another letter to Plaintiff's attorneys regarding the frivolous pleading. See Exhibit "E" hereto. 8. By letter dated February 19, 2010, Colonial notified Plaintiff's attorneys of the false assertions in Plaintiff's answer to Colonial's Preliminary Objections in accordance with Rule 1023.1. See Exhibit "F" hereto. 9. By letter dated March 26, 2010, Colonial notified Plaintiff and its attorneys that it was improper to harass Colonial with discovery when Preliminary Objections were pending. See Exhibit "G" hereto. 10. On June 21, 2010, the Honorable Court dismissed Plaintiff's amended complaint, with prejudice. See Exhibit "H" hereto. 11. Plaintiff's and its attorneys' conduct violated Rule 1023.1 (c) (2) , (3) , and (4) which provide: By signing, filing, submitting, or later advocating such a document, the attorney . certifies that, to the best of that persons knowledge, information and belief, formed after an inquiry reasonable under the circumstances, (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law, (3) the factual allegations have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual allegations are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. 12. Accordingly, Colonial seeks sanctions pursuant to Rule 1023.1 (d) against Plaintiff, Plaintiff's attorneys, and the law firm of Wiest, Muolo, Noon and Swinehart. 13. Because of Plaintiff's, and its attorneys' pursuit of the frivolous claims in Cumberland County, Colonial has incurred substantial attorney's fees and expenses. 14. As required by Rule 1023.2, Colonial served written notice to Plaintiff's attorneys who signed the pleadings and demanded that they dismiss the frivolous filings. 15. Plaintiff and its attorneys refused to withdraw the frivolous pleadings within twenty-eight days of Colonial's notices. 16. Pursuant to Rule 1023.4(2)(iii), Colonial seeks all attorney's fees and expenses that it incurred because of Plaintiff's pursuit of the frivolous pleadings. WHEREFORE, Colonial Surety Company respectfully requests that this Honorable Court award it reimbursement of the attorney's fees and expenses it incurred because of Plaintiff's improper pursuit of the frivolous action. r DATE: July 6, 2010 By: ' LARR L,~~' MI ER MILLER LAW OFFICES, P.C. Pennsylvania Office New Jersey Office -Suite 108 1423 State Road 50 Chestnut Ridge Road Duncannon, PA 17020 Montvale, NJ 07645 717-957'2828 EMAIL: Ilmmillerlaw@earthlink.net Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) January 4, 2010 VIA 1~ CLASS & CERTIFIED MAIL James C. Bathgate, Esquire Wiest, Muolo 240=246 Market Street P.O. Box 791 Sunbury, PA 17801 Re: Cumberland Analytical v. Colonial Surety, et al. Cumberland Co. CCP No. 2009-8859 Our Client: Colonial Surety Company Principal: DME Construction Associates Bond No: CSC-215207 Project: Roof Replacement, Bldgs. 203 & 204, Naval Support Activity, Mechanicsburg, PA Obligee: Dept. of the Navy, Naval Facilities Engineering Command Our File: #1276.2 Deaz Mr. Bathgate: I represent Colonial Surety Company. Pursuant to Rule 1023.1, it is requested that you withdraw the frivolous Complaint that was filed against Colonial. The case is untimely and filed in the wrong court. A federal district court has exclusive jurisdiction of Miller Act payment bond claims. Additionally, all Miller Act actions must be filed within one year of the date of last week. Please dismiss the Complaint, with prejudice. Otherwise, Colonial will seek sanctions. in ~, ~ ° fD O O N N ~ w O ~ ~ a S 4 W ~ d "~ o _ W $ ~ _ ~ y ~"~< N t W m O ~^ __ N ~A# mo`0~a a m Y ~ ~ -'moo ~ ~'••^ O ci~~ i; LL ~ Q A ~ J~ ~ N z ~ y UU ~~ d 11 1lq " l1J 9 4 N N ~ ~U4lz~ Q F- O EXHIBIT Sir;~e ely, L IL. filler i / ~ RE: ~1276,~ 1~4~LO ~~o7r~~~ 7184 3875 44'0 Ol]Ol~ 4Y,81 pti P ~7a~''m ~~ ~' YA ~~ ~°!_ 'rR ~,,.. MILLER LAW OFFICES, P. C. Pennsylvania Office New Jersey Office -Suite 108 1423 State Road 50 Chestnut Ridge Road Duncannon, PA 17020 Montvale, NJ 07645 717-957-2828 EMAIL: Ilmmillerlaw@earthlink.net Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) January 15, 2010 VIA FAX. 1~ CLASS & CERTIFIED MAIL James C. Bathgate, Esquire Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 Re: Dear Mr. Bathgate: Cumberland Analytical v. Colonial Surety et al. No. 2009-8859 Our Client: Colonial Surety Company Principal: DME Construction Associates Bond No: CSC-215207 Project: Roof Replacement, Bldgs. 203 & 244, Naval Support Activity, Mechanicsburg, PA Obligee: Dept. of the Navy, Naval Facilities Engineering Command Our File: #1276.2 My letter of January 4, 2010 is incorporated herein by reference. It is our position that the averments of paragraphs 14 and 15 are entirely false. Please immediately furnish all proof of these averments. Colonial intends to hold you and your firm responsible for all damages that are incurred by Colonial because of the frivolous litigation that is based upon false averments. Also, Colonial considers your and your client's actions to be the unlawful pursuit of a fraudulent insurance claim and, intends to pursue all available relief for these wrongful acts. ~ ~ ~ O (V nj ~ O O ~ ~ N W d N ~ Q Q _d O W Si ? m N W ro d m M o O # ~ ~~ ~~ ~~rO1.a v ~ a,Or, m C .TJ~O ~ N C G ••' O Ulm ppX m 7 ~ d y N LL L ~ N~ ~ K W CQC C is 0~~~ ~ Z~~Nai y ~ o~i~a~i~ Q ~ ~ n %i ~ a `~ `" ~ ~ O a EXHIBIT _ _ °`~ Since/r.~ly, ~, f ~~ ' ller i RE~ #12762 1/15/10 ~127~~2 i 7184 387.5 4490 0001 4995 (j', lGGV m r ~ p. v ~'"o o- MILLER LAW OFFICES, P . C. Pennsylvania Office ~ New Jersey Office -Suite 108 1423 State Road 50 Chestnut Ridge Road Duncannon, PA 17020 Montvale, NJ-07645 717-957-2828 EMAIL; Ilmmillerlaw@earthlink.net Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) January 18, 201-0 VIA F'AX. 1S'' CLASS & CERTIFIED MAIL James C. Bathgate, Esquire Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 Re: Cumberli Our Client: Principal: Bond No: Project:. Obligee: Our File: Dear Mr. Bathgate: i Analvtical v. Colonial Suret~mpany Colonial Surety Company DME Construction Associates CSC-215207 Roof Replacement, Bldgs. 203 & 204, Naval Support Activity, Mechanicsburg, PA Dept. of the'Navy,_Naval Facilities Engineering Command #1276.2 I have received the frivolous Amended Complaint that you filed in Cumberland County. You obviously know that Colonial never promised to pay your client and, that the allegations that. you certified are false and frivolous. You have obviously asserted these false averments to attempt to conceal your malpractice. Colonial intends to hold you and your firm liable for all damages that it incurs because of your misconduct. S' c ely, L. ill °~ ~ ~ ~ ~ W ~ ,~~. ~~ ~ ~ ~ m ~~ ~ g had m°mma S ~ h ~ ~ ~ ~ s ---------- -- __ - - 4- Z _.. .. -_ __ ._ __. - . _ RE= X1276-2 EXHIBIT ~ N C i 1/19/10 =1276-2 ; m 7 E 7184 3875 4490 0001 5046 "m ~ d O MILLER LAW OFFICES, P. C. Pennsylvania Office New Jersey Office -Suite 108 1423 State Road 50 Chestnut Ridge Road Duncannon, PA 17020 Montvale, NJ 07645 717-957-2828 EMAIL: Ilmmillerlaw@earthlink.net Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) January 20, 2010 VIA 1 sr CLASS & CERTIFIED MAIL James C. Bathgate, Esquire Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 Re: Cumberland Analytical v. Colonial Surety, et al. No. 4:10-cv-00080 CCP No. 2009-8859 Our File: #1276.2 Dear Mr. Bathgate: I reply to your fax of January 16, 2010. I was not threatening you. I was simply giving you the notice that is required under the applicable rules that unless you withdraw the frivolous pleadings, Colonial will hold you and your firm responsible for all damages. Also, it is obviously improper to file two suits on the same claim. Colonial demands that you dismiss the repetitive federal action, with prejudice. ~ Otherwise, Colonial will seek all damages incurred in obtaining dismissal of the frivolous complaint. O ~ ~ !T <~ O N ~j ~ W a S ~ Q W v v ~ '~ Q ^ w~ W ~ ~ s o UST NN t OlY~ `- ~ Y ~^ ~ ~~ J O ~~^a O ~ q ~ ~ ~ ~ # O`9 ~ ~ ~m 7 ~ °1 ~ GON- Cq u,~iuym J CC G J ~ ~ ~ m v ~ W ~~warn W a°civ~i~~ Fa- fA d _. _ _ LL-- - -_ ~ ~_. _- -~ FO ~ ~ - - -- - --- _ _ _ -- - - RE: ~+L216-~? ~ 1/20/],p ~y~~~~~ E 7 .m EXHIBIT ~ 7184 3875 4490 UOO~L 5107 ! ~~~ °~ __ , ~' o, MILLER LAW OFFICES, P. C. Pennsylvania Office New Jersey Office -Suite 108 1423 State Road 50 Chestnut Ridge Road Duncannon, PA 17020 Montvale, NJ 07645 717-957-2828 EMAIL: Ilmmilleriaw@earthlink.net Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) February 19, 2010 VIA 1ST CLASS & CERTIFIED MAIL James C. Bathgate, Esquire Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 Re: Cumberland Analytical v. Colonial Surety, et al. Our Client:. .Colonial Surety Company Principal: DME Construction Associates Bond No: CSC-215207 Project: Roof Replacement, Bldgs. 203 & 204, Naval Support Activity, Mechanicsburg, PA Obligee: Dept. of the Navy, Naval Facilities Engineering Command Ow File: #1276.2 Dear Mr. Bathgate: I reply to your letter dated February 17, 2010. You filed a frivolous action in the wrong court after you negligently permitted the statute of limitations to expire. Then, you signed a pleading that you knew contained the absolutely false averment that Colonial had promised payment to your client. Your assertion that Mr. Stos promised payment is wholly false as well. As you have been previously advisedy Colonial intends to recover all damages from you and .your client's abuse of process and other intentional misconduct. ,, Sic ely, a v Q ~ ~ a ~ 7 ~ N N ~ W Z,. ~ller ' aS ~ W " ~ o v W$ w ~, ~ ~ ~ U v° dN L W .^-. O ~^ ~^'e m3°~~¢ m Y ~ .~~o O ci~~ Xa LL ~ ~ ~ ~''t m !- w -, v m ~ ao w - m r~ O~~a Z m~vQ~ ~ Hcvy'ani J ~ LL W' wn rn W a°vy~~ F¢ O - -- W o a -'._ --_-- --N. _. ~ _ RE: #1276.2 ~ °.y EXHIBIT ~ 2/19/10 #1276.2 r~iS~ '~ti,,m i 7184 3875 4490 D001 6241 J~°~ °' _ ~~~Y ,~~ l~IILLER LAW OFFICES, P.C. Pennsylvania Office 1423 State Road Duncannon, PA 17020 717-957-2828 Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) February 19, 2010 VIA 1ST CLASS & CERTIFIED MAIL James C. Bathgate, Esquire Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 Re: Cumberland Analytical v. Colonial Sure , et al. Our Client: Colonial Surety Company Principal: DME Construction Associates Bond No: CSC-215207 New Jersey Office -Suite 108 50 Chestnut Ridge Road Montvale, NJ 07645 EMAIL: Ilmmillerlaw@earthlink.net Project: Roof Replacement, Bldgs. 203 & 204, Naval Support Activity, Mechanicsburg, PA Obligee: Dept. of the Navy, Naval Facilities Engineering Command Our File: # 1276.2 Dear Mr. Bathgate: I write pursuant to Rule 1023.1 and demand that you withdraw the false assertions in your Answer to Colonial's Preliminary Objections which obviously have no evidentiary support including, inter alia, the following false averments: 1. that Colonial made a promise to pay Plaintiff $20,000 under a payment bond; 4. that your Complaint named Colonial Surety Company as a party defendant; 6. that your Complaint named Colonial Surety Company as a party defendant; 8. that Colonial ever made promise to pay your client; 10. that your Complaint named Colonial Surety Company as a defendant; 11. that you did not attempt to add a new party in your Amended Complaint; 12. that you did not add a new party in the Amended Complaint; 14. that Colonial Surety Company was not added as anew party defendant in the Amended Complaint; and, 24. that Colonial made a promise to pay Plaintiff: EXHIBIT RE= X1276.2 2/19/10 #1276 2 ~ 7184 3875 4490 0001 6265 .. .... a.. •+•.aabu.~v, LA~. February 19, 2010 . Page 2 Please delete and dismiss all of your false averments that violate Rule 1023.1(c). Colonial demands that you withdraw these false averments within twenty-eight days of the service of this demand. Otherwise, Colonial will seek sanctions including all attorney's fees incurred and its expenses. ~. ~ ~ N ~ a°m O fV ~ ao °' a w ~ ~ ~ N w s w~ ~ ~ ~ r d ~° ~ V W~ ~N ~~# ~ C m ~~~a W ~ m N O J O U~ t O ~~ W~_ 7 ~ T~~ t ^' I- ~ 1N 07 ~ a u, NC W ! 'D. W O y ° ' ° ° W ~ ~tYN Z ~ sc .~am a Utn r LL LL ~ 2/1y/yam #1276•.2.. ~I(~(~ 7184 3875 4490 OOD1 6265 'N, PA 17020 2 Article Number LARRY L • MILLER, ESQUIRE 4. Restricted Delivery? MILLER...LAW OFF~~j~y~lrrPr~.tytrr[r!r!(i+rirrr~il+rr rt~~.~'~~1(~'~es ~~423 STATE ROD i '1 1 E ! t1 A. Signature: (^Addressee or ^Agent) B, Received By: (Please Print CJearl ) C. Date of Delivery D. Addressee's Address fhonr.~.neFmmaddr..:u..daysendp Delivery Address ll I City ..................................... .State ..._._.... ZIP + 4 Code 3. Service Type CERTIFIED ~ ~iuiiwii~iiiiiiiiiiiiiiuiiiiiiiiAi 1. Article Addressed To: ~ ,' -~_ ~'yyW ~ l JAMES C• BATHGATE, E~QU~RE WIEST, MUOLO 240-246 MARKET STRF~E~'~ P • 0 • BOX 791 ~~~i~ i~~ SUNBURY PA 17801 R~°~ ~--- -.~:., MILLER LAW OFFICES, P.C. Pennsylvania Office New Jersey Office -Suite 108 1423 State Road 50 Chestnut Ridge Road Duncannon, PA 17020 Montvale, NJ 07645 717-957-2828 EMAIL: timmilferiaw(cDearthlink.net Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) March 26, 2010 ~ Isr CLASS & CERTIFIED MAIL Sames C. Bathgate, Esquire Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 Re: Cumberland Analytical v. Colonial Surety Cumberland Co. CCP No. 2009-8859 Our Client: Colonial Surety Company Principal: DME Construction Associates Bond No: ,CSC-215207 Project: Roof Replacement, Bldgs. 203 & 204, Naval Support Activity, Mechanicsburg, PA Obligee: Dept. of the Navy, Naval Facilities Engineering Command Our File: #1276.2 Dear Mr. Bathgate: I received a request for production of documents from you. This discovery was obviously served in bad faith for the improper purpose of harassing Colonial and causing it to unnecessarily incur fees and expenses. You certainly know that Colonial has filed Preliminary Objections to your frivolous lawsuit. Accordingly, Colonial objects to your wrongful harassment before the pleadings are closed. Moreover, you know that Colonial intends to recover all expenses and fees from you and your firm related to your misconduct. Such wrongful activities only increase the claim against you and your firm. ~~ N Qm d O ~ N N w$ w N V V ~ N # w,n ~^ N ~j ~ .J O ~ ~~~ O J ~ ~ - u -- -- - io ~ w C N N ~ ~ Q W d ~ _d ~ ~ io O t~p Ol1C~ r Y m p~ n Q d Q f- m!v t$~ a~i io Fin ~mN a mc~-~c- J H o ~' '. ~ I ~'~ °N RE: #127602 ,~s~~,AO. EXHIBIT ~ 3/26/10 #1276 ~ 2 ~y 6gs 7184 3875 4490 0,001 8.122 a'!y °d ~,(c 3 CUMBERLAND ANALYTICAL ASSOCIATES, LLC, Plaintiff vs. COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO.09-8859 CIVIL IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE HESS, J. ORDER AND NOW, this Z ~''~ day of June, 2010, the preliminary objections of Defendant are SUSTAINED. The Plaintiff s Amended Complaint is DISMISSED, with prejudice, for lack of subject matter jurisdiction. James Bathgate, Esquire For the Plaintiff Larry L. Miller, Esquire For the Defendant :rlm EXHIBIT BY THE COURT, VERIFICATION I, LARRY L. MILLER, have prepared the foregoing MOTION FOR SANCTIONS. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this Verification on behalf of my client, COLONIAL SURETY COMPANY. The facts set forth in the pleading are based upon my review of the documents and information provided by Colonial Surety Company and/or of which I have personal knowledge as counsel for Colonial Surety Company. I am making this Verification on behalf of Colonial Surety Company as it is outside the jurisdiction of the Court and there is insufficient time to obtain a verification from an officer. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. ~~~~~~ Date: July 6, 2010 By: ~~~~ . MILLER CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing MOTION FOR SANCTIONS upon counsel of record this 6th day of July, 2010 by placing the same in the United States Mail, 1sT CLASS and CERTIFIED mail, postage prepaid, addressed as follows: James C. Bathgate, Esquire Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 By: r LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 1423 State Road Duncannon, PA 17020 Telephone: [717]957-2828 JUL 0 9 2010 .,.. r f - , ,, ~ i!'!+~ GUi,~:- 'J1~I F ~H 'a":. Attorney for: COLONIAL SURETY COMPANY CUMBERLAND ANALYTICAL ASSOCIATES, LLC Plaintiff v. COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2009-8859 Civil Term ORDER AND NOW, this /,~' day of July, 2010, upon consideration of the Motion of Colonial Surety Company for Sanctions, IT BE AND IS HEREBY ORDERED that Colonial Surety Company's Motion is granted and Colonial is hereby awarded reimbursement of the attorney's fees and expenses that it incurred because of Plaintiff's violation of Rule 1023.1 (c) . Colonial is directed to submit an affidavit of the fees and expenses incurred within twenty days of the date of this Order. Plaintiff and its counsel will have twenty days after service of Colonial's affidavit to object to Colonial's demanded fees and expenses and, to request a hearing thereon. ~ ~.Q rr y ~.. Wl~ l ~2~-, d ~a.x.zs C, /~c~~Niga~C, E5~ C®p~es ~,~.a,.1ed 7/~~~a CUMBERLAND ANALYTICAL ASSOCIATES, LLC, Plaintiff VS COLONIAL SURETY AGENCY, LLC, a/k/a COLONIAL SURETY COMPANY Defendant * IN THE COURT OF COMMON PLEAS OF * * CUMBERLAND COUNTY, PENI~YL~NIA * ~•- --~ ,~., ,..r.. c.._ - ,. ~r_. * CIVIL ACTION `- ~~ ~'~' * NO. 2009 - 8859 Civil Term ~ * _ ` _.~s * COMPULSORY ARBITRATIO(~t-~ r.-" ; ,. .. ~~ c~. :,.- :~ MOTION FOR RECONSIDERATION The Plaintiff, Cumberland Analytical Associates, LLC, by and through legal counsel, Wiest, Muolo, Noon 8~ Swinehart, files the foregoing Motion for Reconsideration to this Honorable Court's Order dated July 13, 2010, and in support thereof avers as follows: 1. On or about July 7, 2010, the Defendant, Colonial Surety Company, filed a Motion for Sanctions against Plaintiff, Plaintiff's attorneys, and the Wiest, Muolo, Noon &Swinehart law firm. A true and correct copy of the Motion is attached hereto, made a part hereof and designated as Exhibit ~.A„ 2. The aforesaid Motion for Sanctions did not contain a Rule Returnable as required by Local Rule 208.3(a)(3). 3. Pursuant to the Pennsylvania Rules of Civil Procedure, a party is typically afforded twenty (20) days to file an Answer to a Motion. 4. On July 13, 2010, prior to Plaintiff filing an Answer to the Motion, this Honorable Court entered an ex parte Order granting the aforesaid Motion for Sanctions. A true and correct copy of the Order is attached hereto, made a part hereof and designated as Exhibit "B". 5. This Honorable Court's Order did not describe the conduct determined to be a violation of Rule 1023.1 as required by Pennsylvania Rule of Civil Procedure 1023.4(c). 6. The Plaintiff, Cumberland Analytical Associates, LLC, by and through legal counsel, Wiest, Muolo, Noon &Swinehart, respectfully requests that this Honorable Court reconsider its Order dated July 13, 2010, based upon the Plaintiff's Answer to the aforesaid Motion for Sanctions, which is attached hereto, made a part hereof and designated as Exhibit "C". 7. The Plaintiff respectfully requests that this Honorable Court schedule a hearing and/or briefing schedule with argument on this matter in order for the Plaintiff to be afforded an opportunity to oppose the aforesaid Motion for Sanctions. WHEREFORE, the Plaintiff, Cumberland Analytical Associates, LLC, by and through legal counsel, Wiest, Muolo, Noon & Swinehart, respectfully requests that this Honorable Court reconsider its Order dated July 13, 2010, deny the Motion for Sanctions filed by Colonial Surety Company and award the Plaintiff attorneys' fees for opposing said Motion pursuant to Pennsylvania Rule of Civil Procedure 1023.2(b). Respectfully submitted, WIEST, MUOLO, NOON & SWINEHART By: ~J Ja s . Bathgate, uire 240-246 Market Street P.O. Box 791 Sunbury, Pennsylvania 17801 (570) 286-7777 Attorney for Plaintiff, Cumberland Analytical Associates, LLC LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 1423 State Road Duncannon, PA 17020 Telephone: [717]957-2828 Attorney for: COLONIAL SURETY COMPANY CUMBERLAND ANALYTICAL . ASSOCIATES, LLC Plaintiff v. COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2009-8859 Civil Term COLONIAL SURETY COMPANY'S MOTION FOR SANCTIONS AGAINST PLAINTIFF, PLAINTIFF'S ATTORNEYS, AND THE WIEST, MUOLO, NOON & SWINEHART LAW FIRM Colonial Surety Company ("Colonial"), by and through its counsel, seeks sanctions against Plaintiff, Plaintiff's attorneys, and the law firm of Wiest, Muolo, Noon & Swinehart based upon their wilful violation of Rule 1023.1(c) and, in further statement of Colonial's claims, it avers the following: 1. On December 29, 2009, Plaintiff, Plaintiff's attorneys, Roger V. Wiest and James C. Bathgate, and the law firm of Wiest, Muolo, Noon & Swinehart knowingly filed a frivolous complaint against Colonial that attempted to state a claim against Colonial on a federal Miller Act payment bond after the statute of limitations had expired. 2. On January 4, 2010, Colonial provided notice pursuant to Rule 1023.1 that the complaint was frivolous in that it was untimely filed (after the expiration of the one year Miller Act statute of limitations) in the wrong court (federal courts have exclusive jurisdiction over Miller Act suits). See Exhibit "A" hereto. 3. On January 14, 2010, Plaintiff filed an "amended complaint" which made additional false and frivolous averments including, that Colonial had promised payment to Plaintiff. 4. By letter dated January 15, 2010, Colonial advised Plaintiff, and its attorneys, that the averments of the amended pleading, paragraphs 14 and 15, were entirely false. S~ Exhibit "B" hereto. S. By letter dated January 18, 2010, Colonial's counsel sent a follow-up letter to Plaintiff's attorneys regarding the frivolous pleading. See Exhibit "C" hereto. 6. By letter dated January 20, 2010, Colonial's counsel sent another follow-up letter to Plaintiff`s attorneys regarding the frivolous pleading. See Exhibit "D" hereto. 7, By letter dated February 19, 2010, Colonial's counsel sent another letter to Plaintiff's attorneys regarding the frivolous pleading. See Exhibit "E" hereto. 8. By letter dated February 19, 2010, Colonial notified Plaintiff's attorneys of the false assertions in Plaintiff's answer to Colonial's Preliminary Objections in accordance with Rule 1023.1. Seg Exhibit "F" hereto. 9. By letter dated March 26, 2010, Colonial notified Plaintiff and its attorneys that it was improper to harass Colonial with discovery when Preliminary Objections were pending. Seg Exhibit "G" hereto. 10. On June 21, 2010, the Honorable Court dismissed Plaintiff's amended complaint, with prejudice. See Exhibit "H" hereto. 11. Plaintiff's and its attorneys' conduct violated Rule 1023.1 (c) (2) , (3) , and (4) which provide: By signing, filing, submitting, or later advocating such a document, the attorney . certifies that, to the best of that persons knowledge, information and belief, formed after an inquiry reasonable under the circumstances, (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law, (3) the factual .allegations have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4} the denials of factual allegations are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. 12. Accordingly, Colonial seeks sanctions pursuant r_o Rule 1023.1 (d) against Plaintiff, Plaintiff's attorneys, and the law firm of Wiest, Muolo, Noon and Swinehart. 13. Because of Plaintiff's, and its attorneys' pursuit of the frivolous claims in Cumberland County, Colonial has incurred substantial attorney's fees and expenses. 14. As required by Rule 1023.2, Colonial served written notice to Plaintiff's attorneys who signed the pleadings and demanded that they dismiss the frivolous filings. 15. Plaintiff and its attorneys refused to withdraw the frivolous pleadings within twenty-eight days of Colonial's notices. 16. Pursuant to Rule 1023.4(2)(iii), Colonial seeks all attorney's fees and expenses that it incurred because of Plaintiff's pursuit of the frivolous pleadings. WHEREFORE, Colonial Surety Company respectfully requests that this Honorable Court award it reimbursement of the attorney's fees and expenses it incurred because of Plaintiff's improper pursuit of the frivolous action. ~~ DATE: July 6, 2010 By: LARR~C L .- MI ER MILLER LAW OFFICES, P.C. Pennsylvania Office Nsw Jersey Office -Suite 108 1423 State Road 50 Chestnut Ridge Road Duncannon, PA 17020 Montvale, NJ 07645 717-957-2828 EMAIL: IlmmilledawCa3earthlink.net Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) January 4, 2414 1~IA 1 "~ CLASS & CERTIFIED MAIL James C. Bathgate, Esquire Wiest, Muolo 244-246 Market Street P.O. Box 791 Sunbury, PA 17801 Re: Cumberland Analytical v. Colonial Surety. et al. Cumberland Co. CCP No. 2009-8859 Our Client: Colonial Surety Company Principal: DME Construction Associates Bond No: CSC-215207 Project: Roof Replacement, Bld~s. 203 & 204, Naval Support Activity, Mechanicsburg, PA Obligee: Dept. of the Navy, Naval Facilities Engineering Command Our File: #1276.2 Dear Mr. Bathgate: I represent Colonial Surety Company. Pursuant to Rule 1023.1, it is requested that you withdraw the frivolous Complaint that was filed against Colonial. The case is untimely and filed in the wrong court. A federal district court has exclusive jurisdiction of Miller Act payment bond claims. Additionally, all Miller Act actions must be filed within one year of the date of last week. Please dismiss the Complaint, with prejudice. Otherwise, Colonial will seek sanctions. ~~ Sir}de ely, O F Qo Y O m ,~ V o r ,r ~ L.ar~y1s. 'ller V _ ~ $ V 1 ui mm W 4 N Q W $ V ~ WA m N N m ~a ~_ v ~ `e~~~o ~,~ e ~ 0 Y ~~ . r ~-J(~~~ ~ p po O ~~Nm~ O• ~ C G r. ~O Q~ W ~}Nd~ ~~ ' - __ .. ~ F- u' ~ O . -- - EXHIBIT RE~ +~127b•2 ~ P~7 ~'° . 1/410 ~127b•~ y i 7184 3875 4490 0001 4681 f~~ 1VIILL~R LAIN OFFICES, P. C. Pennsylvania Office New Jersey Office -Suite 108 1423 State Road 50 Chestnut Ridge Road Duncannon, PA 17020 Montvale, NJ 07645 717-957-2828 EMAIL: Ilmmillertaw(r~earthlink.net Fax 717-957843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) January 15, 2010 CIA FAX. 1~ CLASS & CERTIFIED MAIL James C. Bathgate, Esquire Wiest, Muolo ?40-246 Market Street P.O. Box 791 Sunbury, PA 17801 Re: Cumberland Analytical v. Colonial Surety, et al. No. 2009-8859 Our Client: Colonial Surety Company Principal: DME Construction Associates Bond No: CSC-215207 Project: Roof Replacement, Bldgs. 203 & 204, Naval Support Activity, Mechanicsburg, PA Obligee: Dept. of the Navy, Naval Facilities Engineering Command Our File: #1276.2 • Dear Mr. Bathgate: My letter of January 4, 2010 is incorporated herein by reference. It is our position that the averments of paragraphs 14 and 15 are entirely false. Please immediately furnish all proof of these averments. Colonial intends to hold you and your firm responsible for all damages that are incurred by Colonial because of the frivolous litigation that is based upon false averments. Also, Colonial considers your and your client's actions to be the unlawful pursuit of a fraudulent insurance claim and, intends to pursue all available relief for these wrongful acts. ~~ ~ ~ w v ~ • ii ~ ~ `~ ~ o a W is ~ ~ n a h m O UY ~~ ~N~ ~ °4 s^~ °a$~Aa b' ~ ~ ~`a O'.la~~ ~~ 61 Z ~a ~~ r~ ~ ~ vf w ~ w `n LL o o o. - -- - -- '7 Since~~ely, ~ / I~'~ler r ~ - I RE~ X1276.2 EXHIBIT I 1/15/10 ~127b.2 i 7184 3875 4490 01701 4995 °y o~ ~ .a ~ p. .~ a~ 1VIILLER LAW OFFICES, P.C. Pennsylvania Office 1423 State Road Duncannon, PA 17020 717-957-2828 Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) January 18, 2010 VIA FAX, 1'~ CLASS & CERTIFIED MAIL James C. Bathgate, Esquire Wiest, Muolo ?40-246 Market Street P.O. Box 791 Sunbury, PA 17801 New Jersey Office -Suite 108 50 Chestnut Ridge Road Montvale, NJ 07645 EMAIL: Ilmmillerlaw(~earthiink.net Re: Cumberland Analytical v. Colonial Surety Company Our Client: Colonial Surety Company Principal: DME Construction Associates Bond No: CSC-215207 Project: Roof Replacement, Bldgs. 203 & 204, Naval Support Activity, Mechanicsburg, PA Obligee: Dept. of the Navy,. Naval Facilities Engineering Command Our File: #1276.2 Dear Mr. Bathgate: I have received the frivolous Amended Complaint that you filed in Cumberland County. You obviously know that Colonial never promised to pay your client and, that the allegations that you certified are false and frivolous. You have obviously asserted these false averments to attempt to conceal your malpractice. Colonial intends to hold you and your firm liable for all damages that it incurs because of your misconduct. S' c ely, L. ill ~ d e~ ~ ~ ~ W~ ~a of S Q~ ~66 ~ ~ ~ ~ o A R b~~~~a A ~ ~ -'f iNR .-Ww( ~ ~~~ ~ ~~d~~ ~~~~~ LL ~ O EXHIBIT ~ REs X1276.2 ~ ~ ¢ C { 1/19/10 =1276.2 , o'er E 7184 3b75 ~F490 0001 SD46 w ~ o- _..._.._ _._....__ ...-- _. _____ 1~ a __ O MILLER LAW OFFICES, P. C. Pennsylvania Office New Jersey Office -Suite 108 1423 State Road 50 Chestnut Ridge Road Duncannon, PA 17020 Montvale, NJ 07645 717-957-2828 EMAIL: Ilmmillerlaw(c~earthlink.net Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERSy January 20, 2010 VIA 1ST CLASS 8t CERTIFIED MAIL James C. Bathgate, Esquire Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 Re: Cumberland Analytical v. Colonial Surety. et al. No. 4:10-cv-00080 CCP No. 2009-8859 Our File: #1276.2 Deaz Mr. Bathgate: I reply to your fax of January 16, 2010. I was not threatening you. I was simply giving you the notice that is required under the applicable rules that unless you withdraw the frivolous pleadings, Colonial will hold you and your firm responsible for all damages. Also, it is obviously improper to file two suits on the same claim. Colonial demands that you dismiss the repetitive federal action, with prejudice. ~ Otherwise, Colonial will seek all damages incurred in obtaining dismissal of the frivolous complaint. Si~ er y, filler r. O m _~ e ~ o ~ ~ O M N W gvi Q O e ~ ~ ~ W Y t ! Q O . U~ W 8 ~ ~ ~ m i3 ~p qq ~ O ~ ^ Qom. m ' ~ J~ O O U ~ rape < m~ y ~i p l7LL tl c G O A ~ ~~~~ t €~ ~ W ~ fVa LZ W F_ a 1/20/1,0 r127b.? •7 „m EXHIBIT ~ 7284 3875 449Q !7001 5107 °~ - w o. MILLER LAW OFFICES, P. C. Pennsylvania Office 1423 State Road Duncannon, PA 17020 717-957-2828 Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) February 19, 2010 yIA 1 ~ CLASS & CERTIFIED MAIL James C. Bathgate, Esquire Wiest, Muolo 240-246 Mazket Street P.O. Box 791 Sunbury, PA 17801 New Jersey Office -Suite 108 50 Chestnut Ridge Road Montvale, NJ 07645 EMAIL Ilmmillerlaw((~earthlink.net Re: Cumberland Analvtical v. Colonial Surety. et al. Our Client: Colonial Surety Company Principal: DME Construction Associates Bond No: CSC-215207 Project: Roof Replacement, Bldgs. 203 & 204, Naval Support Activity, Mechanicsburg, PA Obligee: Dept. of the Navy, Naval Facilities Engineering Command Our File: #1276.2 Deaz Mr. Bathgate: I reply to your letter dated February 17, 2010. You filed a frivolous action in the wrong court after you negligently permitted the statute of limitations to expire. Then, you signed a pleading that you knew contained the absolutely false averment that Colonial had promised payment to your client. Your assertion that Mr. Stos promised payment is wholly false as well. As you have been previously advised, Colonial intends to recover all damages from you and ,your client's abuse of process and other intentional misconduct. ~~~ Sincdrely, ,p G (V d f'- .~ W d,, Q W $ `~ ° y ~ W ~ ~ 'D 't as ~ a Y A ~ cc 7~.,~_o O ci~~sa ~ a: i C 1Y of ~ w h ry '.+ ~' O A O -JK a D~ O~ ~ y'' _~ J F.- LL W '~N° ~ W a°U w~ y r N h W ~ y~2°' a 1a- O __ - / ~ ~. - .. ___ ~ RE: tt1276.2 ~~ 9y EXHIBIT ~ 2/19/10 X1276.2 ,•acA '~~,,~ 7184 3875 4490 0001 6241 J~m~ a __ - ~, :.~ MILLER LAW OFFICES, P.C. Pennsylvania Office New Jersey Office -Suite 108 1x23 State Road 50 Chestnut Ridge Road Duncannon, PA 17020 Montvale, NJ 07645 717-957-2828 EMAIL: Ilmmillerlaw aQearthlink.net Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) February 19, 2010 yIA I sT CLASS 8c CERTIFIED MAIL James C. Bathgate, Esquire Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 Re: Cumberland Analytical v. Colonial Surety, et al. Our Client: Colonial Surety Company Principal: DME Construction Associates Bond No: CSC-215207 Project: Roof Replacement, Bldgs. 203 & 204, Naval Support Activity, Mechanicsburg, PA Obligee: Dept. of the Navy, Naval Facilities Engineering Command Our File: #1276.2 Deaz Mr. Bathgate: I write pursuant to Rule 1023.1 and demand that you withdraw the false assertions in your Answer to Colonial's Preliminary Objections which obviously have no evidentiary support including, inter alia, the following false averments: 1. that Colonial made a promise to pay Plaintiff$20,000 under a payment bond; 4. that your Complaint named Colonial Surety Company as a party defendant; b. that your Complaint named Colonial Surety Company as a party defendant; 8. that Colonial ever made promise to pay your client; 10. that your Complaint named Colonial Surety Company as a defendant; 11. that you did not attempt to add a new party in your Amended Complaint; 12. that you did not add a new party in the Amended Complaint; 14. that Colonial Surety Company was not added as a new party defendant in the Amended Complaint; and, 24. that Colonial made a promise to pay Plaintiff. ~ , , ~ RE~ X1276.2 EXHIBIT ~ ~ 2/19/10 #1276 2 7184 3875 4490 0001 6265 • rcutualy ty, .:v 1.V , Page 2 Please delete and dismiss all of your false averments that violate Rule 1023.1(c). Colonial demands that you withdraw these false averments within twenty-eight days of the service of this demand. Otherwise, Colonial will seek sanctions including all attorney's fees incurred and its expenses. Sincer y, C filler ~ a O tV ~ c a N W W ~ m ~ ~ ~ ~ U W vt ~~~. ~N= ~ ~o '~ J~o x ~-~ $ ~ ^ a O Ci~m~ ~' ; ev ' ° ~ ' at Z ~ ~zA ; Z ~~ravr ~ W rQ~r LL (~ I V_ ~N, PA 17020 2 Article Number 2/1y/L., X1276.2 ~~~ (~ 7184 3875 4490 0001 6265 LARRY L • MILLER, ESQUIRE 4. Restricted Delivery9 MILLER ..LAW OFFFrTi~Fy~irr~~.t~thnrlrflrer'rrl~l'rrr n~~`~~~~~~es ~~423 STATE ROAD t 1' 1 [ [ 1 /1. Si®nature: (^Addressee or ^Apent) ~. Received By: (Pieeas Print L ~~ C. Dffie of Delivery D.Addrsasee'sAddress /ro/Ir...rranASd~.e.u..seys«a.q S~ooM~ry Addrw f Suk~ / Apr f Fber (FINN P,Nd GN,Iy) DNlwry AddrN~ 3. Service Type CERTIFIED Aiiiiiuuni~iiuiiiiAiiiiei ,.,. 3„= ~~90 000..=.s 1. Artlele Addressed To: -- t.~\; JAMES C• BATH6ATE, .. q ,~ E.SQUZRE WIEST, MUOLO - ', f,) 240-246 MARKET STR EET; ~"' P•0• BOX 791 ,_:~;i~ SUNBURY PA 17801 '~ ~~~5 Stag ZIP • 4 CoM MILLER LAW QFFICES, P.C. Pennsylvania Office New Jersey Office -Suite 108 1423 State Road 50 Chestnut Ridge Road Doncannon, PA 17020 Montvale, NJ 07645 717-957-2828 EMAIL: Ilmmillerlaw(d3earthlink.net r=ax 717-957843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) Mazch 26, 2010 VIA 1 ~ CLASS & CERTIFIED MAIL James C. Bathgate, Esquire Wiest, Muolo 240-246 Mazket Street P.O. Box 791 Sunbury, PA 17801 Re: Cumberland Analytical v Colonial Surety Cumberland Co. CCP No. 2009-8859 Our Client: Colonial Surety Company Principal: DME Construction Associates Bond No: .CSC-215207 Project: Roof Replacement, Bldgs. 203 & 204, Naval Support Activity, Mechanicsburg, PA Obligee: Dept. of the Navy, Naval Facilities Engineering Command Our File: #1276.2 Dear Mr. Bathgate: I received a request for production of documents from you. This discovery was obviously served in bad faith for the improper purpose of harassing Colonial and causing it to unnecessarily incur fees and expenses. You certainly know that Colonial has filed Preliminary Objections to your frivolous lawsuit. Accordingly, Colonial objects to your wrongful harassment before the pleadings are closed. Moreover, you know that Colonial intends to recover all expenses and fees from you and your firm related to your misconduct. Such wrongful activities only increase the claim against you and your firm. ,~ I ' ly, i~ ~~ ~ ~ m ~ v ~ ~ a H$ W ~ ~ 0 Q. w$ H ~ `L N _ _ V 5 S o S O ~ ~ ~ $ Y r ~~~A a ~ m ~ ~ ~ J ! O ~ ~ ~ q~ 0 ~ ~' m ' m a~ ~ ~ ~"'_ ~ CQ G I- i. W ~~ze~ ~ ~ o Z ~~Na W a~ J °° a u. ~ ~ z F - O O o. EXHIBIT ~ ~ RE: #1276.2 3/26/10 X1276.2 /~ ~ 7184 3875 4490 0001 8122 ~~~ ~s~ '•y s J~~'~~d CUMBERLAND ANALYTICAL ASSOCIATES, LLC, Plaintiff vs. COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CNIL ACTION -LAW NO. 09-8859 CNIL IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE HESS. J. ORDER AND NOW, this 2 ~'~ day of June, 2010, the preliminary objections of Defendant are SUSTAINED. The Plaintiff s Amended Complaint is DISMISSED, with prejudice, for lack of subject matter jurisdiction. James Bathgate, Esquire For the Plaintiff Larry L. Miller, Esquire For the Defendant :rlm EXHIBIT BY THE COURT, VERIFICATION I, LARRY L. MILLER, have prepared the foregoing MOTION FOR SANCTIONS. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this Verification on behalf of my client, COLONIAL SURETY COMPANY. The facts set forth in the pleading are based upon my review of the documents and information provided by Colonial Surety Company and/or of which I have personal knowledge as counsel for Colonial Surety Company. I am making this Verification on behalf of Colonial Surety Company as it is outside the jurisdiction of the Court and there is insufficient time to obtain a verification from an officer. This Verification is made subject to the penalties of 18 Pa. Cons. 5tat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Date: July 6, 2010 By: ~~ LAIRR MILLER CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing MOTION FOR SANCTIONS upon counsel of record this 6th day of July, 2010 by placing the same in the United States Mail, 1sT CLASS and CERTIFIED mail, postage prepaid, addressed as follows: James C. Bathgate, Esquire Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 ;' By: ~; ~, EXHIBIT "B" LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 1423 State Road Duncannon, PA 17020 Telephone: [717]957-2828 CUMBERLAND ANALYTICAL , ASSOCIATES, LLC ~ . Plaintiff v. . COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY Defendant . Attorney for: COLONIAL SURETY COMPANY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2009-8859 Civil Term ORDER AND NOW, this /~ day of July, 2010, upon consideration of the Motion of Colonial Surety Company for Sanctions, IT BE AND IS HEREBY ORDERED that Colonial Surety Company's Motion is granted and Colonial is hereby awarded reimbursement of the attorney's fees and expenses that it incurred because of Plaintiff's violation of Rule iC23.i(c). Colonial is directed to submit an affidavit of the fees and expenses incurred within twenty days of the date of this Order. Plaintiff and its counsel will have twenty days after service of Colonial's affidavit to object to Colonial's demanded fees and expenses and, to request a hearing thereon. J. CUMBERLAND ANALYTICAL ASSOCIATES, LLC, Plaintiff VS COLONIAL SURETY AGENCY, LLC, a/k/a COLONIAL SURETY COMPANY Defendant TO: COLONIAL SURETY COMPANY c/o Larry L. MiNer, Esquire * IN THE COURT OF COMMON PLEAS OF * CUMBERLAND COUNTY, PENNSYLVANIA * CIVIL ACTION * NO. 2009 - 8859 Civil Term * COMPULSORY ARBITRATION NOTICE You are hereby notified to file a written response to the enclosed New Matter to Defendant's Motion for Sanctions within twenty (20) days from service hereof or a default judgment may be entered against you. WIEST, MUOLO, NOON & SWINEHART BY: am s C. Bathgate,'Esquire 2 46 Market Street P.O. Box 791 Sunbury, Pennsylvania 17801 (570) 286-7777 Attorney for Plaintiff, Cumberland Analytical Associates, LLC CUMBERLAND ANALYTICAL ASSOCIATES, LLC, Plaintiff VS COLONIAL SURETY AGENCY, LLC, a/k/a COLONIAL SURETY COMPANY Defendant * IN THE COURT OF COMMON PLEAS OF * CUMBERLAND COUNTY, PENNSYLVANIA '' CIVIL ACTION * NO. 2009 - 8859 Civil Term COMPULSORY ARBITRATION PLAINTIFF'S ANSWER TO COLONIAL SURETY COMPANY'S MOTION FOR SANCTIONS The Plaintiff, Cumberland Analytical Associates, LLC, by and through legal counsel, Wiest, Muolo, Noon & Swinehart, files the foregoing Answer to Defendant's Motion for Sanctions and in support thereof avers as follows: 1. Denied as stated. It is admitted that on December 29, 2009, Plaintiff, by and through legal counsel, filed a Complaint against Colonial Surety Company for failure to pay under a payment bond. 2. Admitted. It is admitted that the Plaintiff's attorneys received the letter attached as Exhibit "A". 3. Denied as stated. It is admitted that on January 14, 2010, Plaintiff, by and through legal counsel, filed an Amended Complaint against Defendant, Colonial Surety Company, sounding in breach of a promise to pay. It is specifically denied that the Plaintiff included any "false and frivolous" averments in said Complaint. Strict proof of the same is demanded at the time of hearing. 4. Admitted in part. It is admitted that the Plaintiff's attorneys received a copy of the letter that is attached as Exhibit "B". The Plaintiff specifically denies that the averments in Paragraph 14 and 15 were false as they were supported by evidentiary support or were likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. 5. Admitted in part. It is admitted that the Plaintiff's attorneys received the letter attached as Exhibit "C". The Plaintiff's attorneys deny the content, assertions, and position of Colonial set forth in said letter. 6. Admitted in part. It is admitted that Plaintiff's attorneys received the letter marked as Exhibit "D". The Plaintiffs attorneys deny the content, assertions, and position of Colonial set forth in said letter. 7. Admitted in part. It is admitted that Plaintiff's attorneys received the letter marked as Exhibit "E". The Plaintiffs attorneys deny the content, assertions, and position of Colonial set forth in said letter. 8. Admitted in part. It is admitted that the Plaintiff's attorneys received the letter attached as Exhibit "F". The Plaintiff's attorneys deny the content, assertions, and position of Colonial set forth in said letter. 9. Admitted in part. It is admitted that Plaintiff's attorneys received the letter attached as Exhibit "G". The Plaintiff's attorneys deny the content, assertions, and position of Colonial set forth in said letter. 10. Admitted. 11. Denied. The averments in Paragraph 11 of the Defendant's Motion contain conclusions of law to which no response is required. By way of further answer, the Plaintiff, by and through legal counsel, has not engaged in any conduct that violates Rule 1023.1. 12. Denied. It is specifically denied that Defendant is entitled to sanctions pursuant to Rule 1023.1 {d). Strict proof of the same is demanded at the time of hearing. 13. Denied. It is specifically denied that the Plaintiff, by and through legal counsel, pursued a frivolous claim against Colonial Surety Company. Strict proof of the same is demanded at the time of trial. 14. Admitted in part. It is admitted that Colonial has sent to the Plaintiff's attorneys the above referenced letters. It is specifically denied that Colonial complied with Rule 1023.2. Moreover, it is specifically denied that the Plaintiff's pleadings were frivolous. 15. Admitted in part. It is admitted that Plaintiff, by and through legal counsel, refused to withdraw the pleadings. By way of further answer, Plaintiff's attorneys deny that the pleadings were frivolous. Strict proof of the same is demanded at the time of trial. 16. Denied. The averments in Paragraph 16 of the Defendant's Motion contain conclusions of law to which no response is required. By way of further answer, the Plaintiff requests that this Honorable Court award the Plaintiff expenses and attorney's fees in opposing the instant Motion purs Iuant to Rule 1023.2(b). WHEREFORE, Cumberland Analytical Associates, LLC, by and through legal counsel, respectfully requests that this Honorable Court dismiss Colonial Surety Company's Motion for Sanctions and award the Plaintiff expenses and attorneys' fees incurred in opposing the instant motion. NEW MATTER 17. On January 14, 2010, Plaintiff filed an Amended Complaint against the Defendant, Colonial Surety Company, sounding in breach of promise to pay. 18. The Plaintiff's claim was based on facts that were supported by evidentiary support or were likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. 19. The Plaintiff's claim was warranted by existing law or by anon-frivolous argument for the extension, modification or reversal of existing law or the establishment of new law. 20. On June 21, 2010, this Honorable Court dismissed the Plaintiff's Complaint for lack of subject matter jurisdiction. 21. The note to Pennsylvania Rule of Civil Procedure 1023.1 provides that the grant of preliminary objections does not, of itself, ordinarily warrant the imposition of sanctions against the party opposing the relief. The note further provides that "the rule is not intended to chill an attorney's enthusiasm or creativity in pursuing factual or legal theories. The standard is one of reasonableness under the circumstances." 22. The note to Pennsylvania Ruie of Civil Procedure 1023.1 provides that Rule 1023.1 motions should not be made or threatened to intimidate an adversary into withdrawing contentions that are fairly debatable. 23. The Plaintiff, and its attorneys, did not engage in any willful misconduct, or in any conduct that is in violation of Rule 1023.1. 24. The Defendant's Motion should be dismissed based on the doctrine of unclean hands. 25. As early as June 22, 2009, Colonial Surety Company was aware of Plaintiff's assertion that Colonial's authorized representative, John Stos, promised to pay Plaintiff the sum of Twenty Thousand ($20,000.00) Dollars. A true and correct copy of the letter is attached hereto, made a part hereof and designated as Exhibit "A". 26. Colonial's counsel subsequently supplied a letter to counsel for Plaintiff indicating that it was investigating the same. A true and correct copy of the letter is attached hereto, made a part hereof and designated as Exhibit "B". 27. At no time prior to the filing of litigation did Colonial ever deny the assertions set forth in the June 22, 2009 letter. 28. On January 18, 2009, the attorneys for the Plaintiff sent to defense counsel a letter outlining the June 22, 2009 letter and indicating that Plaintiff needed to conduct reasonable discovery in this matter. A true and correct copy of the letter is attached hereto, made a part hereof and designated as Exhibit "C". 29. On January 21, 2010, the attorneys for the Plaintiff sent to defense counsel a letter outlining its theories and requesting discovery. A true and correct copy of the letter is attached hereto, made a part hereof and designated as Exhibit "D". 30. On February 17, 2010, counsel for the Plaintiff fully outlined Plaintiff's position in the two (2) pending lawsuits to Colonial Surety Company. A true and correct copy of the letter is attached hereto, made a part hereof and designated as Exhibit "E". 31. On March 29, 2010, the attorneys for the Plaintiff sent a response to defense counsel's contention that Plaintiff was serving discovery on Defendant in bad faith and for the wrongful purpose of wrongful harassment. The Plaintiff was requesting a reasonable opportunity to conduct discovery on the same. A true and correct copy of the letter is attached hereto, made a part hereof and designated as Exhibit "F". 32. There is currently pending in the United States District Court for the Middle District of Pennsylvania, a lawsuit filed by the Plaintiff against the Defendant .under the Miller Act. The parties are in the process of conducting discovery in said case including the allegations related to breach of promise to pay. A true and correct copy of a summary of the facts and issues can be found in the relevant portions of the joint case management plan which is attached hereto, made a part hereof and designated as Exhibit "G". 33. The Defendant's written notice and demand does not comply with Pennsylvania Rule of Civil Procedure 1023.2. 34. The Plaintiff respectfully requests that this Honorable Court award the Plaintiff's reasonable expenses and attorneys' fees in opposing the instant Motion pursuant to Rule 1023.2(b). Respectfully submitted, WIEST, MUOLO, NOON & SWINEHART By: D C. Bathgate, Esquire 240- 46 Market Street, P.O. Box 791 Sunbury, PA 17801 (570) 286-7777 Attorney for Plaintiff, Cumberland Analytical Associates, LLC VERIFICATION I, James C. Bathgate, Esquire, in my capacity as counsel of record for Plaintiff, Cumberland Analytical Associates, LLC, hereby verify that the statements made in this Answer to Motion for Sanctions with New Matter are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Ja s C. Bathgate, squire Counsel for Plaintiff DATED: July ~© , 2010 lAW OFFICES WIEST, MUOLO, NOON & SWINEHART ROGER V. WIEST P. O. BOX 791 ASML/1N0 OFFI~ ROBERT J. MUOLO 240.244 MARKET STREET •7s'S=~ OAVIO D. NOON W{LUAM R. 91MINEMART SUN®URY, PENNSYLVANIA 17501 MERNOON OFFN ROGER V. WIEST. 11 AREA CODE X370 ~e+s.e~44 2967777 E_MA1L RICHARD J. SMOCK 2968073 iAX 81lrMMt~ptd.Ml JAMES C. dATMOATt ASSOCIAT[S June 22, 2009 Wayne Nunziata COLONIAL SURETY COMPANY 50 Chestnut Ridge Road Montvale, New Jersey 07645 RE: Claim for Services -Cumberland Analytical Assoc. LLC Dear Mr. Nunziata: I am the legal representative of Cumberland Analytical Associates, IIC (CA Associates) who were engaged by DME Construction Associates for a contract at the NAVFAC Contrails Naval Support site in Mechanicsburg, Pennsylvania It is indicated that my clients were contacted on April 11, 2008, by Peter Chardon and Dazlene Edwards of DME Construction Associates in Port Jefferson, New York. They were advised that DME Construction would be removing and installing roofing materials from Building 203 and 204 at the Naval Support site is Mechanicsburg Pennsylvatia, and required CA Associates to perform Indoor Quality Monitoring during the removal of asbestos containing roofing material during the project and VOC testing during and after the installation of the new roofs. On April 14, 2008, CA Associates began providing on-site services. On August 8, 2008, they submitted their first invoice for work done from April 14, 2008, through August 8; 2008. The invoice was delivered to DME Constructioa on August 18, 2008. When the invoice became past due, CA Associates contacted the on-site representative of DME (Peter Chardon) in Mechanicsburg. He ititially claimed that his oi~'ice had never received the invoice. CA Associates then hand carried an invoice to Mr. Chardon on October 14, 2008, at which time Chardon executed an acknowledgement of receipt of the invoice. On October 20, 2008, CA Associates submitted their second invoice for the remainder of the project. The project ended October 17, 2008. Per this date, CA Associates has received no payment for any of the services rendered. On November 17, 2008, my clients were in contact with you. They learned that none of the other contractors that were working for DME Construction at the Naval Support site were paid for their services either and were forced to make a claim to you as the bonding company for the project. 024 WtEST, MUOl.O, NOON dw SWINEHART Page 2 June 22, 2009 On November 18, 2008, my clients received a communication from Colonial Surety Company requesting information about the job and their services. After submitting this information to you, they contacted you to confirm that you had received the information. You allegedly told them that you would investigate the matter. Subsequently you told my clients that you were unable to do anything on the claim until you got approval from DME Construction to pay them. After several months of trying to get information from you or DME Construction, my clients were contacted by John S. Stos of Cashin Spinellli 8t Ferretti, LLC. He requested information on the job and the services provided. He sent a-mails to Mr. Chardon at DME regarding the invoices. Ia the e-mails from Mr. Stos, he states that he approved that Colonial Surety pay Twenty Thousand ($20,000.00) Dollars of the total of Twenty-Seven Thousand Eight Hundred ($27,800.0) Dollars earned by my clients under their contract. Payment was promised promptly. Per this date, nothing has been received. Demand is hereby made for the sum of Twenty-Seven Thousand Eight Hundred (527,800.00) Dollars represented by the invoices enclosed herein. If no response is received, I have been authorized to commence legal action to collect these monies from DME Construction and you as their surety. Respectfiilly yours, WIEST, MUOLO, NOON &SWINEHART Roger V. Wiest RVWJdm Enclosures Cc: DME Construction Associates John C. Stos 025 MILLER LAW OFFICES, P.C. Pennsylvania Office t a23 State Road New Jersey Office - Swte 108 Duncannon, PA 17020 50 Chestnut Ridge Road 717-957-2828 Montvale, NJ 07645 Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) EMAIL: Ilmmillerlaw(~earthlink.net June 30, 2009 Roger V. Wiest, Esquire Wiest, Muolo 240-246 Mazket Street P.O. Box 791 Sunbury, PA 17301 Re: Our Client: Colonial Surety Company Principal: DME Construction Associates Bond No: CSC-215207 Project: Roof Replacement, Bldgs. 203 & 204, Nava! Support Activity, Mechanicsburg, PA Obligee: Dept. of the Navy, Naval Facilities Engineering Command Claimant: Cumberland Analytical Associates LLC Our File: t#1276.2 Dear Mr. Wiest: 1 represent Colonial Surety Company. Your letter of June 22, 2009 has been sent to DME's counsel, Michael Rabinowitz, to obtain DME's position on the claim. Once we have DME's position, l will be in further contact with you. Cirrr~wly ~ ., Larry L.. ller ~~ 0~ ROtiER V. WIEST ROBERT J. MUOLO DAVID D. NOON WILLIAM R. SWINEHART ROGER V. WIEST, II RICHARD J. SHOCH JAMES C. BATH3ATE ASSOCIATES LAW OFFICES WIEST, MUOLO, NOON &SWINEHART P. O. BOX 791 2ao-2a8 MARKET STREET SUNBURY, PENNSYLVAN{A 17601 AREA CODE 370 288-7777 288-8075 FAX January 18, 2010 Larry L. Miller, Esquire MILLER LAW OFFICES, P.C. i X123 State Road Duncannon, Pennsylvania 17020 RE: Cumberland Analytical Associates, LLC vs. Colonial Surety Agency, LLC No. 2009-8859 Civil Term, Cumberland County, Penns ivania Dear Atty. Miller: ASHLANp OFFICE 676-32Si1i HERNDON OFFICE 7 X36-6644 E-MAIL attwisBtOptd.net I am in receipt of your letter bearing date January I5, 2010. I do not appreciate the threatening tone and accusations in your letter. f am somewhat surprised that you are resorting to these threatening tactics considering you were fully aware of our position as early as June 22, 2009. On June 22, 2009, our office sent to Wayne Nunziata of Colonial Surety Company a letter outlining our position. You subsequently sent to us a letter acknowledging receipt of the same and indicated that you would investigate the same. You were also providing to our office periodic updates that you were investigating the same. It was not until sometime following the ane year anniversary from the date on which. the last work was performed by my client that you notified our otiice for the trst time that you were denying the claim because of various defenses. Accordingly, we were forced to the a lawsuit against your client. The first. time that we heard your position that our client's contentions set forth in the Amended Complaint and the letter dated June 22, 2009, were untrue was by your letter bearing date January 15, 2010. As you are aware, there are now two (2) pending lawsuits against your client in the Court of Common Pleas of Cumberland County and in the Middle District of Pennsylvania. [t is our intention to move these matters forward and conduct reasonable discovery which would include reviewing the entire claims file in this matter. [n order to save expenses to both parties, t would ask that you please provide to my attention a complete copy of the claims file. Obviously after the completion of discovery, we will take the opportunity to review this matter. In the event that you would like to discuss this matter in a professional manner, please contact me so that we can discuss the same. Very truly yours, WIEST, MUOLO, NOON &SWINEHART James . Bathgate JCB/dm ROGER V. WIEST ROBERT J. MUOLO DAVID D. NOON WILLIAM R. SWINEHART ROGER V. WIEST. II RICHARD J. SHOCH JAMES C. BATHGATE ASSOCIATES LAW OFFICES WIEST, MUOLO, NOON &SWINEHART P. O. BOX 791 ASHLAND OFFICE z40-z46 MARKET STREET e7a-3aa>i SUNBURY, PENNSYLVANIA 17601 HERNDON OFFICE AREA CODE 570 76e-6644 2 B6-7 7 7 7 E-MAI L 2B6-8075 FAX attwiest®ptd.net January 21, 2010 Larry L. Miller, Esquire MILLER LAW OFFICES, P.C. 1423 State Road Duncannon, Pennsylvania 17020 RE: Cumberland Analytical Associates, LLC vs. Colonial Surety Agency, LLC No. 2009-8859 Civil Term Cumberland County Pennsylvania Dear Atty. Miller: I am in receipt of your letter bearing date January 20, 2010. As you are aware, the two (2) pending lawsuits are not duplication of one another. "fhe action in the Court of Common Pleas of Cumberland County is premised upon the theory of Colonial Surety Company's breach of its promise to pay my client the Burn of twenty thousand ($20,000.00) Dollars. The litigation in the Federal Court centers around payment under the 'Miller Act. As you can see from the Federal pleadings, to the extent that it is determined in the Court of c'ummun Pleas of Cumberland County that my client is entitled to the sum of Twenty Thousand ($20,000.00) Dollars then we are asking only for the additional Seven Thousand Eight Hundred ($7,800.00) Dollars together with interest and costs in the Federal litigation. Again, I would renew my request for you to produce the entire claims file for this claim. In the event that I do not receive a copy of the same within twenty (20) days, then I will proceed and file a request for production of documents. Very truly yours, WIEST, MUOLO, NOON &SWINEHART James C. Bathgate JCB/dm LAW OFFICES WIEST, MUOLO, NOON &SWINEHART ROGER V. WIEST P. O. BOX 791 ROBERT J. MUOLO za0-24s MARKET STREET OAVID D. NOON SUN9URY, PENN3YlVANIA 17801 WILLIAM R. SWINEHART ROGER V. WIEST. II AREA CODE 570 286-7777 RICHARD J. SHOCH 286-8075 FAX JAMES C. BATHGATE ASSOCIATES February 17, 2010 Larry L. Miller, Esquire MILLER LAW OFFICES, P.C. 1423 State Road Duncannon, Pennsylvania 17020 Re: Your Client: Colonial Surety Company Principal: DME Construction Associates Bond No.: CSC-215207 Project: Roof Replacement, Bldgs. 203 8~ 204. Naval Support Activity. Mechanicsburg. Pennsylvania Obligee: Dept. of the Naw, Naval Facilities Engineering Command Claimant: Cumberland Analytical Associates LLC Your File #: 1276.2 Dear Attorney Miller: ASHLAND OFFICE 876-3299 HERNDON OFFICE 7 65-6544 E-MAIL attwieat8ptd.net This fetter is in response to the numerous correspondences which you have sent to this office on the above-referenced matter. You have continually referenced bad faith on our behalf in pursuing this claim for our client, Cumberland Analytical Associates, LLC. While it is not typicaNy my practice of engaging in spurious banter with opposing counsel, your continued correspondence leaves me no alternative but to clearly outline this case as I see it, as well as the manner in which I believe any objective observer would conclude. As you know, this matter arises as a result of a failure by a general contractor to pay subcontractors amounts owed to them in a project at the Naval Support Activity, Mechanicsburg, Pennsylvania. Your client, Colonial Surety Company, had issued a Payment Bond in conjunction with that work. There is no dispute that my client is a third party beneficiary under the terms of that Payment Bond. Further, there does not appear to be any dispute that my client performed its obligations in a timely and workmanlike fashion, and is entitled to be compensated for that work, with the possible exception of Four Hundred Forty ($440.00) Dollars. I would note that nowhere in any correspondence from you is the workmanship, timeliness or performance under the contract with the general contractor placed in issue. In other words, no meritorious substantive defense to my client's claims have ever been raised throughout, again with the exception of the Four Hundred Forty ($440.00) Dollar figure. Factually, the processing of this claim is as follows: 1. My client completed the work under the contract with the General Contractor on October 17, 2008. WIEST, MUOLO, NOON S SWINEHART February 17, 2010 Page 2 Re: Your Client: Colonial Surety Company Principal: OME Construction Associates Bond No.: CSC-215207 Project: Roof Replacement. Bldgs. 203 S 204. Naval Support Activity. Mechanicsburg. Pennsylvania Obligee: Dept. of the Navv, Naval Facilities Engineerinc Command Claimant: Cumberland Analytical Associates LLC Your File #: 1276.2 2. My client then submitted appropriate invoices on that date or immediately thereafter to the General Contractor. 3. In November of 2008, my clients learned from other subcontractors that the General Contractor had not been honoring their claims. Accordingly, my client contacted Colonial to assert entitlement to payment under the relevant Payment Bond. 4. At some point, but no later than February 25, 2009, my clients were contacted by John Stos, who is with the management firm of Cashin, Spinelli, Ferretti, LLC. The initial contact was by telephone. The content of the initial contact was that Mr. Stos had been retained by Colonial for purposes of handling claims made against the General Contractor's Payment Bond. 5. Based upon that information, my client then submitted the varying invoices and claims to Cashin, Spinelli, Ferretti, LLC. At some point prior to April 8, 2009, discussions with Mr. Stos indicated that of the claim asserted by my client in the amount of Twenty-seven Thousand Eight Hundred ($27,800.00) Dollars, Twenty Thousand ($20,000.00) Dollars was undisputed. There was, however, questions remaining as to the invoices totaling Seven Thousand Eight Hundred ($7,800.00) Dollars. My client was then copied on an email from Mr. Stos to the General Contractor. That email confirmed that a review by Mr. Stos on behalf of Colonial indicated that Twenty Thousand ($20,000.00) Dollars was undisputed. The email further indicated that the only adjustment to the claim of my client which could be found would have reduced the remaining Seven Thousand Eight Hundred ($7,800.00) Dollars to Seven Thousand Three Hundred Sixty ($7,360.00) Dollars. The email further indicated that, unless information disputing this was received from the General Contractor within ten (10) days, the intention would be to pay Twenty-seven Thousand Three Hundred Sixty ($27,360.00) Dollars. Interestingly, you were, in fact, copied on that email as was Colonial. Subsequent thereto, my client again contacted Mr. Stos and was informed by email dated April 30, 2009, that he would be reviewing this matter with Colonial. Subsequently, my client had a telephone conversation with Mr. Stos wherein my client was assured the payment would be forthcoming. Thereafter, when a period of approximately six (6) weeks had passed without any further contact, our office was initially contacted. We then outlined the above in correspondence directed to you. This occurred in June, 2009. Thereafter, various exchanges occurred between yourself and my office. All of those WIEST, MUOLO, NOON & SWINEHART February 17, 2010 Page 3 Re: Your Client: Colonial Surety Company Principal: DME Construction Associates Bond No.: CSC-215207 Project: Roof Replacement, Bldas. 203 8 204. Naval Support Activity. Mechanicsburc. Pennsylvania Obli4ee: Dept. of the Navv. Naval Facilities EnQineeringCommand Claimant: Cumberland Analytical Associates LLC Your File #: 1276.2 correspondences are included herein. Throughout the continued exchange, no defense or indication was given that this claim was not to be paid or honored nor were any defenses raised or asserted. Continued assurance was given by you that this claim was being processed and, at no time, was any previous discussions disavowed. Ultimately, correspondence sent by our office in the continued nature of previous correspondence was answered by you asserting, for the first time, that Colonial would not pay anything as a result of assorted defenses, none of which were mentioned. The only information which was then ultimately supplied by your office was the expiration of one (1) year statute of limitation. Quite frankly, this course of settlement negotiations clearly is a violation of 40 P.S. §1171.5. It also clearly constitutes the type of activity for which the varying Circuit Courts in the United States as well as the US Supreme Court have indicated justify the application of equitable estoppel. At this point, you have our explanation of the basis not only for the federal suit, but also the suit in Cumberland County. 1t is our intention, once the spurious Preliminary Objections filed by you have been resolved, to move forward with discovery. We recognize that the authority of John Stos' firm may be an issue. However, until we have an opportunity to depose the relevant individuals within Colonial as to the scope of the engagement of that firm, a definitive answer cannot be given in the Cumberland County case. Further, with regard to the federal action, it is our belief that the Middle District of Pennsylvania would adhere to the predominant line of cases throughout the country, as well as the {ead set by the Supreme Court in applying equitable estoppel theories to the one year statute of limitations. As to your ridiculous position that our firm is pursuing this course of conduct based upon a reluctance to inform our client as to a potential statute of limitation violation, please be assured that that was the first item which we reviewed with our client. t find it rather humorous that someone who gave a client advice to string a matter out in the hope of obtaining a statute of limitation defense would even raise such an issue. Lastly, since you find it appropriate to counsel opposing law firms as to their obligations, I would point out to you that your firm was in fact copied on the key email in question here. Accordingly, it is likely that you WIEST, MUOLO, NOON &SWINEHART February 17, 2010 Page 4 Re: Youc Client: Colonial Surety Company Princiaal: DME Construction Associates Bond No.: CSC-215207 Project: Roof Replacement. Bldgs. 203 8 204. Naval Suaaort Activity. Mechanicsburg, Pennsylvania Obligee: Dept. of the Navv, Naval Facilities Engineering Command Claimant: Cumberland Analytical Associates LLC Your File #: 1276.2 will become a witness in this matter. Further, your testimony may be adverse to that of your client. Accordingly, under Rule 3.7 of Professional Responsibility you may wish to reconsider your continued representation in this case. Respectfully yours, WIEST, MUOLO, NOON &SWINEHART Robert J. Muolo James C. Bathgate JCB/cjm Enclosure pc: Cumberland Analytical Associates LLC LAW OFFICES WIEST, MUOLO, NOON &SWINEHART ROGER V. WIEST P. O. BOX 791 ASHV.ND OFFICE ROBERT J. MuOLO 240-246 MARKET STREET 87a-3299 DAVID D. NOON SUNBURY, PENNSYLVANIA 17801 HERNDON OFFICE WILLIAM R. SWINEHART ROGER V WIEST, II AREA CODE 570 75e-aa4.- 2 86-7 7 7 7 E-MAI L RICHARD J. SHOCH 286-8075 FAX attwieat®ptd.net JAMES C. BATHGATE ASSOCIATES March 29, 2010 Larry L. Miller. Esquire MILLER LAW OFFICES, P.C. 1 123 State Road Duncannon, Pennsvlvania 17020 RE: Cumberland Analytical Associates, LLC vs. Colonial Suret~Agenc~LLC No. 2009-8859 Civil Term, Cumberland Counter Pennsylvania Dear Atty. Miller: I am in receipt of your letter bearing date March 26, 2010. Your contentions that we served discovery un you in "bad faith'" and for the purpose of ''wrongful harassment" is completely absurd. You can save your breath with this kind of outrageous allegations. Obviously, there is a tactual dispute as to whether or not your client's construction consultant ever promised to make payment to my client. Additionally, there is a legal issue as to whether or not the construction consultant had authority to bind your client. In order to properly evaluate these issues, it is necessary for my client to have an opportunity to conduct discovery on the same. As I would also bring to your attention that your statements in your brief to the Court that our tirTn is somehow coming up with these averments in an attempt to conceal any malpractice is completely ridiculous. Both you and your client were aware of my client's position as early as June 22, 2009. Unfortunately, your client tailed to conduct a reasonable investigation of this particular claim and the same is clearly in violation of the Unfair Settlement Practices Act, a0 P.S. ~ 1171.5. Very truly }'ours, WIEST, MUOLO, NOON &SWINEHART James C. Bathgate JCB/dm Case 4:10-cv-00080-CCC Document 20 James C. Bathgate, Esquire Attorneys for Plaintiff Larry L. Miller, Esquire Attorneys for Defendant Filed 05/11/2010 Page 1 of 11 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA THE UNITED STATES for the use of Cumberland Analytical Associates, LLC, Plaintiff CASE N0.4:10-CV-080 VS COLONIAL SURETY COMPANY, Defendant JUDGE CONNER JOINT CASE MANAGEMENT PLAN 1. Principallssues 1. i Separately for each party, please give a statement summarizing this case: By plaintiff(s): The instant action is being prosecuted by the Plaintiff, Cumberland Analytical Associates, LLC (hereinafter referred to Cumberland) under the Miller Act. The within action arises out of the failure by a general contractor to pay Cumberland amounts owed to it in a project at the Naval Support Activity, Mechanicsburg, Pennsylvania. Colonial Surety Company had issued a payment bond in conjunction with that work and Plaintiff is a third party beneficiary under the terms of the payment bond. Between the dates of April 14, 2008, and October 17, 2008, Cumberland pertormed work as a sub- contractor, namely pertorming indoor quality monitoring during the removal of asbestos Case 4:10-cv-00080-CCC Document 20 Filed 05/11/2010 Page 2 of 11 containing roofing material and VOC testing, valued at $27,800.00. The general contractor failed to pay Cumberland the sum due and owing. On or about November 17, 2008, Cumberland contacted Colonial in writing requesting payment for its services. Cumberland then submitted all appropriate information requested by Colonial with regard to the job and services pertormed by Cumberland. Cumberland initially communicated with Wayne Nunziata and Theresa Simmons, of Colonial Surety Company. On or about February 5, 2009, Cumberland was contacted by Colonial's consultant, John Stos. The content of the initial contact was that Mr. Stos had been retained by Colonial for purposes of handling claims made against the general contractor's payment bond. On or about April 8, 2009, Cumberland was copied on a written a-mail from Colonial's authorized representative, John Stos, to the general contractor. A fair reading of the same indicated that Colonial had agreed to pay Cumberland the sum of $20,000.00 of the total $27,800.00 claim and that Colonial was investigating the remainder of the same. Specifically, that email confirmed that a review by Mr. Stos on behalf of Colonial indicated that $20,000.00 was undisputed. The email further indicated that the only adjustment to Cumberland's claim which could be found would have reduced the remaining $7,800.00 to $7,360.00. The email further indicated that, unless information disputing this was received from the General Contractor within ten (10) days, the intention would be to pay $27,360.00. Colonial's authorized representative, John Stos, promised Timothy Roush, member of Cumberland Analytical Associates, LLC, over the telephone that the payment would be processed in a prompt manner (within a few weeks) of April 8, 2009. On June 22, 2009, Cumberland's counsel sent to Colonial a letter outlining Cumberland's position under the payment bond including Colonial's promise to pay. Colonial's counsel subsequently supplied a letter to Cumberland's counsel that indicated that Colonial was going to investigate the same. Relying on Colonial's promise to pay a portion of the claim and investigate the same, Cumberland requested periodic updates from Colonial. Colonial provided to Cumberland a series of communications that it was continuing to investigate the same. Sometime following the one year anniversary from the date on which the last work was performed by Cumberland, Colonial notified Cumberland, for the first time, that it was denying the claim because of ColoniaPs various defenses. At no time prior to the one year anniversary did Colonial ever deny the claim, raise any defenses or give any indication that the claim would not be honored. Additionally, at no time prior to the filing of litigation did Colonial indicate that Mr. Stos did not have the authority to act on behalf of Colonial. Colonial further failed to conduct a proper investigation and evaluation of Case 4:10-cv-00080-CCC Document 20 Filed 05!11/2010 Page 3 of 11 the claim despite it promises to investigate the same. ey defendant(s): Plaintiff last worked on October 17, 2008 but never filed suit until January 13, 2010. The suit is under the Miller Act which has a one year statute of limitations. Plaintiff's allegation that Colonial promised to pay Plaintiff's claim is false. Colonial never indicated that Plaintiff's claim would be paid. Plaintiff's assertion that the construction consultant that was retained for the project promised payment to Plaintiff is similarly false. No payment was ever promised to Plaintiff. In fact by email dated May 21, 2009, Plaintiff indicated that the claim was being turned over to its counsel. Colonial never indicated anything but that Colonial would investigate the claim with a full reservation of alt rights and defenses. Colonial never waived the right to assert the expiration of the statute of limitations. There was no tolling agreement. Colonial believes Plaintiff's misconduct in pursuing this time barred claim constitutes insurance fraud and related offenses. 1.2 The facts the parties' dis ut are as follows: The disputed facts are noted above. a ree upon are as follows: The parties agree that Plaintiff made a claim under the payment bond on November 17, 2008, submitted a proof of claim on December 8, 2008, and its counsel sent a letter on June 30, 2009. Colonial admits that it issued the payment bond and that Plaintiff was a subcontractor. All other facts are disputed. 1.3 The legal issues the parties dispute are as follows: The parties dispute whether or not Colonial is barred by the doctrine of equitable estoppel from asserting any time limitations under the Miller Act. agree upon are as follows: Case 4:10-cv-00080-CCC Document 20 Filed 05/11/2010 Page 4 of 11 1.4 Identify any unresolved issues as to service of process, personal jurisdiction, subject matter jurisdiction, or venue: Colonial contends that the Court lacks jurisdiction over the claim because it was not timely filed. The Plaintiff believes that Colonial is barred by the doctrine of equitable estoppel from asserting any time limitations under the Miller Act. 1.5 Identify any named parties that have not yet been served: None 1.6 Identify any additional parties that: plaintiff(s) intends to join: None at this time. defendant(s) intends to join: Colonial likely will file a counterclaim and join Plaintiff's attorneys as Defendants. 1.7 Identify any additional claims that: plaintiff(s) intends to add: None at this time. defendant(s) intends to add: See 1.1 and 1.6 above. CUMBERLAND ANALYTICAL IN THE COURT OF COMMON PLEAS OF ASSOCIATES, LLC, Plaintiff CUMBERLAND COUNTY, PA. VS * CIVIL ACTION COLONIAL SURETY AGENCY, LLC, NO. 2009-8859 CIVIL TERM a!k!a COLONIAL SURETY COMPANY Defendant * COMPULSORY ARBITRATION CERTIFICATE OF SERVICE AND NOW, this 20th day of July, 2010, I, James C. Bathgate, Esquire of the firm of Wiest, Muo1o, Noon & Swinehart, attorneys for the Plaintiff, hereby certify that I, this day, served Plaintiff's Motion for Reconsideration with Rule Returnable by depositing a true and correct copy of the same in the United States mail, postage pre-paid, at Sunbury, Pennsylvania, addressed as follows: Larry L. Miller, Esquire MILLER LAW OFFICES, P.C. 1423 State Road Duncannon, Pennsylvania 17020 Respectfully submitted, WIEST, MUOLO, NOON & SWINEHART BY: J C. Batlrigate,t~squire I.D. ~ 1196 240-244 Market Street P.O. Box 791 Sunbury, PA 17801-0791 (570) 286-7777 COUNSEL FOR PLAINTIFF DATED: July 20, 2010 2~E0 .~v_ 27 r'~ :~ u LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 1423 State Road Duncannon, PA 17020 Telephone: [717]957-2828 ~;~ ~ rt, Attorney for: COLONIAL SURETY COMPANY CUMBERLAND ANALYTICAL ASSOCIATES, LLC Plaintiff v. COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2009-8859 Civil Term COLONIAL SURETY COMPANY'S ANSWER TO PLAINTIFF'S MOTION FOR RECONSIDERATION Colonial Surety Company ("Colonial"), by and through its counsel, hereby answers Plaintiff's motion as follows: 1. Admitted. 2. Denied. Colonial's Motion was filed pursuant to Rule 1023.2 (a) of the Pennsylvania Rules of Civil Procedure. The Motion fully complied with the requirements of Rule 208.2(a). Moreover, Colonial's Motion complied with Local Rule 208.3 (a) (3) as a proposed order was provided to the Court. Local Rule 208.3 (a) (3) only requires the submittal of a rule to show cause order when the Court cannot make an ex parte determination of the matter. There was no reason why the Court could not enter an order on the Rule 1023.2 Motion when the Court by Order and Opinion of June 21, 2010 determined that Plaintiff's action was frivolous. Moreover, the Court had inherent authority to enter the sanction order. 3. Denied. Rule 208.4(a)(1) permits the Court to dispose of a motion at the initial consideration of the motion. Additionally, the Court in the July 13, 2010 Order allowed Plaintiff a full opportunity to object to the relief demanded by Colonial and to request a hearing. 4. Denied as stated. As noted, the Order of July 13, 2010 provided Plaintiff with a full opportunity to respond and to request a hearing. The determination that Plaintiff's case was frivolous was already made by Order and Opinion of June 21, 2010. 5. Denied. By Order and Opinion dated June 21, 2010, the Court already determined that the claims were not warranted by existing law. The conduct that violated Rule 1023.1(c)(2) was previously described in the Court's Order and Opinion of June 21, 2010. 6. Denied. Plaintiff has set forth no valid grounds for reconsideration of the Order of July 13, 2010. Plaintiff's Answer to Colonial's Motion is improperly attached as Exhibit "C" to its motion. Additionally, Plaintiff's endorsement of its Answer with a "Notice to Plead" is frivolous. Pursuant to Rule 1026(a), a notice to plead only applies to pleadings as defined by Rule 1017 of which a "motion for reconsideration" is obviously not one. Likewise, "New Matter" is only for affirmative defenses to a pleading pursuant to Rule 1030(a). Plaintiff's "New Matter" in answer to a motion is frivolous. Third, it is inappropriate to file an answer to an adversary's motion as an exhibit to a separate motion. Last, the "Verification" to the "Answer and New Matter" does not comply with Rule 1024 (c) and is a mere nullity. 7. Denied as stated. The Order of July 13, 2010 already establishes a response date and the ability for Plaintiff to request a hearing. WHEREFORE, Colonial Surety Company respectfully requests that this Honorable Court deny Plaintiff's Motion for Reconsideration. DATE: July 26, 2010 By: VERIFICATION I, LARRY L. MILLER, have prepared the foregoing ANSWER TO MOTION FOR RECONSIDERATION. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this Verification on behalf of my client, COLONIAL SURETY COMPANY. The facts set forth in the pleading are based upon my review of the documents and information provided by Colonial Surety Company and/or of which I have personal knowledge as counsel for Colonial Surety Company. I am making this Verification on behalf of Colonial Surety Company as it is outside the jurisdiction of the Court and there is insufficient time to obtain a verification from an officer. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Date: July 26, 2010 By: CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing ANSWER upon counsel of record this 26th day of July, 2010 by placing the same in the United States Mail, 1ST CLASS and CERTIFIED mail, postage prepaid, addressed as follows: James C. Bathgate, Esquire Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 By: / A r a ~" ;t ~~ID vv;_ 27 ~ r :'~ v~;~ ,;p s ~Ll~~s~ ~ ~ ,r J sir f C~; ii_ LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 1423 State Road Duncannon, PA 17020 Telephone: [717]957-2828 Attorney for: COLONIAL SURETY COMPANY CUMt3ERLAND ANALYTICAL . ASSOCIATES, LLC Plaintiff . v. COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION N0. 2009-8859 Civil Term AFFIDAVIT OF SERVICE I, Larry L. Miller, counsel for Colonial Surety Company, being duly sworn according to law, depose and say that on July 26, 2010, I served true and correct copies of the Affidavits of Frederick Gallo and Larry Miller and this Affidavit of Service on all counsel and unrepresented parties addressed as indicated on the attached list of counsel and unrepresented parties. Service was made by first class and certified mail on July 26, 2010. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904, relating to unsworn falsification to authorities, which provides that if I .knowingly make false averments, I may be subject to criminal penalties. DATE: July 26, 2010 By; COUNSEL LIST James C. Bathgate, Esquire VIA 1ST CLASS & CERTIFIED MAIL Wiest, Muolo 240-246 Market Street P.O. Box 791 Sunbury, PA 17801 .~ rip ; ,~ Li'~~~\,~i iii-~i~~`\.F{. LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 1423 State Road Duncannon, PA 17020 Telephone: [717]957-2828 CUMBERLAND ANALYTICAL . ASSOCIATES, LLC , Plaintiff v. , COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY Defendant Attorney for: COLONIAL SURETY COMPANY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2009-8859 Civil Term AFFIDAVIT OF FREDERICK GALLO FILED PURSUANT TO THE ORDER OF JULY 13, 2010 1. I, Frederick S. Gallo, am the Treasurer of Colonial Surety Company ("Colonial"). 2 . I have personal knnwl r~r~rra of thr~ food +-t,~t r.., ,,,.,; .,, incurred related to the suit that was filed by Cumberland Analytical Associates, LLC in the Court of Common Pleas of Cumberland County. 3. I am competent to testify that Colonial was billed the fees described on Exhibit "A" to Larry Miller's Affidavit for the defense of this case and, that Colonial has paid all fees that were billed. 07/22/1010 THU 14:23 FA% M-L~0 -~~-- WAYNE NUNZIATA I~ 009 4. i have knowledge of the billings from attorneys for the handling of similar surety matters. S . The billings for this case. based upon my experience and knowledge, were reasonable. 6. All of the fees that Colonial incurred in this case were incurred in good faith and were necessary. 7. Colonial incurred attorney's fees of at least 58,595.00 related to Plaintiff's filing of the frivolous action in Cumberland County, Pennsylvania through June 25, 2010. This Ver3fiaation is made subject to the penalties of 18 Pa. Cons. 6tat. Section 4904 relating to unaworn falsification to suthoritiea, which provides that if I knowingly make false averments, i may be subject zo criminal penalties. DATE: July 22, 2010 By: ,. ,, .. t_,~ `. -1 i , ~, Gi1~~'~ _ ;,ks ,, rte. ~. •~..`~ ~4 i~.hi t .._L'1 LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 1423 State Road Duncan.non, PA 17020 Telephone: [717]957-2828 Attorney for: COLONIAL SURETY COMPANY CUMBERLAND ANALYTICAL IN THE COURT OF COMMON PLEAS ASSOCIATES, LLC CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION Plaintiff NO. 2009-8859 Civil Term v. COLONIAL SURETY AGENCY, LLC a/k/a COLONIAL SURETY COMPANY Defendant AFFIDAVIT OF LARRY MILLER FILED PURSUANT TO THE ORDER OF JULY 13, 2010 I, Larry Miller, Esquire, being of full age and aware of the penalties of perjury, certify as follows: 1. I am an attorney-at-law duly authorized to practice in all courts of this Commonwealth and I am counsel for Colonial Surety Company ("Colonial") in this matter. 2. I am knowledgeable of the facts related to this case and I therefore am in a position to submit this Affidavit. 3. As counsel for Colonial, I repeatedly requested Plaintiff and its counsel to dismiss the frivolous case against Colonial that was filed in the wrong court (exclusive jurisdiction in the federal courts for Miller Act payment bond claims) and after the expiration of the applicable statute of limitations (one year from last work) . 4. Plaintiff, and its counsel, unreasonably failed and refused to dismiss the wholly frivolous action. 5. Colonial incurred substantial fees related to defending the frivolous action that was filed by and pursued by Plaintiff and its counsel. 6. A true and accurate statement of the fees that were incurred by Colonial in defending the Cumberland County case is attached hereto as Exhibit "A." 7. Colonial was charged my standard billing rate of $225 per hour for the handling of the defense of this case. 8. Colonial has paid all of the fees that were billed to it related to the Cumberland County case. 9. The total fees that Colonial incurred because of Plaintiff's and its counsels' violation of Rule 1023.1 (c) were $8,595 through June 25, 2010. 10. By Order and Opinion dated June 21, 2010, this Honorable Court determined that Plaintiff's claims were groundless. 11. No appeal has been filed from the June 21, 2010 Order. This Verification is made subject. to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. DATE: July 26, 2010 gy; LA Y LLER PROFESSIONAL SERVICES HOURS 12/31/09 Legal research; Letter to Plaintiff's counsel. .40 Review mail; Review Acceptance of Service form; Letter to Mr. Bathgate. .50 Legal research; Preparation Preliminary Objections 1.20 1/8/10 Preparation of documents re: Preliminary Objections to Cumberland Analytical's suit. .40 Review and revisions to Preliminary Objections 1/15/10 Review mail; Review letter from Mr. Bathgate; Review Amended Complaint; Note to file re: Preliminary Objection; Note to file re: locating documents; Letter to Mr. Bathgate. 1/17/10 Review Amended Complaint; Letter to Mr. Bathgate re: frivolous state case. 1/18/10 Review Amended Complaint; Work on Amended Preliminary Objections.. 1/21/10 Legal research re: Rules; Revisions to Preliminary Objections. 1/22/10 Review and revisions to Preliminary Objections to Amended Complaint. 2/11/10 Review answer to Preliminary Objections and mail from Cumberland. 2/17/10 Legal research at Widner Law School library. Review praecipe to list preliminary objections for argument. Revisions to affidavit in support of Preliminary Objections; Search for Colonial Surety Agency. Revisions to Affidavit. Preparation of Affidavit; Revisions to Brief; Review legal research. .40 .80 .60 .80 .80 .30 .20 3.00 .10 .40 .20 .80 EXHIBIT A PROFESSIONAL SERVICES HOURS Review Amended Complaint; Review Preliminary Objections; Work on draft of brief in Cumberland Analytical 1.10 Review Local Rules; Notes to file re: needed items to file in Cumberland County. .40 2/18/10 Review all legal research for Cumberland case; Supplemental brief with case cites. 3.30 Review Cumberland Notice; Review proposed order and revise; Review praecipe for argument. .20 Check changes to Wayne Nunziata's affidavit. .20 Review and revisions to brief. 1.60 Review Certification; Review PA statute of frauds; Revisions to brief. .80 2/19/10 Preparation of Notice and demand letter to Mr. Bathgate re: false averments in the Answer; Review Rule 1023.1. .60 2/20/10 Preparation of Requests for Admission for Cumberland; Review complete file. 1.60 2/22/10 Review and revisions to Interrogatories. .20 Revisions to Requests for Production for Cumberland. .30 Preparation of Requests for Admission, Interrogatories, Request for Production of Documents, and Certificates of Service directed to Cumberland Analytical; Preparation of service letter to Mr. Bathgate. .80 2/24/10 Review mail from Cumberland County re: Cumberland case. .30 Review praecipe; Review and revise letter to Cumberland County Court. .20 3/14/10 Review mail from Prothonotary; Docket argument date; Review 3 local rules mentioned in Notice. .30 PROFESSIONAL SERVICES HOURS 3/21/10 Review papers related to service; Review brief in opposition to preliminary objections; Notes to file. 80 3/23/10 Review Cumberland's response to document request; Letter to Mr. Bathgate re: failure to properly answer requests. .30 Review Answers to Interrogatories; Preparation of letter to counsel re: failure to properly answer Interrogatories. .40 Review response to requests for admission; Letter to Mr. Bathgate re: failure to properly answer Requests. .60 Review fax; Letter to Mr. Bathgate re: waiving argument. .30 3/24/10 Review legal research; Work on two sections of reply brief. 2.20 Review legal research; Work on three sections of reply brief. 2.30 Legal research at Widner Law School library for reply brief for preliminary objections. 3.30 3/25/10 Review and revisions to brief. 2.20 Revisions to brief. .40 Review discovery from Mr. Bathgate; Letter to Mr. Bathgate objection to discovery. .30 3/30/10 Review fax from Mr. Bathgate; Letter to Mr. Bathgate re: discovery. .30 4/13/10 Review mail and Request for Production of Documents; Preparation of draft Response to Plaintiff's requests. .80 4/16/10 Review and revisions to Response to Document Request from Cumberland in state case. .40 PROFESSIONAL SERVICES HOURS Preparation of documents re: Response to Request for Production of Documents of Cumberland Analytical in the Cumberland County matter. .30 6/23/10 Review order and opinion; Letter to Mr. Bathgate. .50 Total Time Charges 38.20 Q $225.00 per hour = $8,595.00 JUL 2 3 2010 CUMBERLAND ANALYTICAL ASSOCIATES, LLC, Plaintiff VS COLONIAL SURETY AGENCY, LLC, a/k/a COLONIAL SURETY COMPANY Defendant * IN THE COURT OF COMMON PLEAS OF * CUMBERLAND COUNTY, PENNSYLVANIA * CIVIL ACTION * NO. 2009 - 8859 Civil Term * COMPULSORY ARBITRATION RULE RETURNABLE AND NOW, this ~ day of A,,~.~.-"" 2010, upon consideration of the foregoing Motion for Reconsideration, it is hereby ordered that: 1. A rule is issued upon the Respondent to show cause why the moving party is not entitled to the relief requested. 2. The Respondent shall file an Answer to the Motion within Z ~ days of this date. 3. The Motion shall be decided under Pa. R.C.P. No. 206.7. a ococ , - ., ' , O 5. Argument shall be held on the ~~ day of 2010, at + ~b o'clock, ~.m., in Court Room No. ~, of the Cumberland County Court House. 6. Notice of the entry of this Order shall be provided to all parties by the moving party. BY THE COURT: A. Hess P- J. ~ ~ ~ ,• ~ ~ ~i Pc: ~ James C. Bathgate, Esquire, Counsel for Plaintiff ~ + , f ~.~ ~'~ c ~ , ! Larry L. Miller, Esquire, Counsel for Defendant F_ ,~ .ry ~ ~ :.:-~ 4=~ ,o ., G ,. ~~ ~ _ _~ ~~ ~ :~_~ ,~ ;e :~; - ALM-0'-DICE (7 TH. ? '.-V7ARY j James C. Bathgate, Esquire Supreme Court Identification Number: 91196 Wiest, Muolo, Noon & Swinehart 240-246 Market Street, P.O. Box 791 Sunbury, Pennsylvania 17801 (570) 286-7777 Attorney for Plaintiff 0 AU S 27 Pty (: 43 CLIMBr ; u v C"OUN Y PEWZYmNiA CUMBERLAND ANALYTICAL IN THE COURT OF COMMON PLEAS OF ASSOCIATES, LLC, Plaintiff CUMBERLAND COUNTY, PA. VS CIVIL ACTION COLONIAL SURETY AGENCY, LLC, NO. 2009-8859 CIVIL TERM a/k/a COLONIAL SURETY COMPANY Defendant * COMPULSORY ARBITRATION AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA SS.: COUNTY OF NORTHUMBERLAND James C. Bathgate, Esquire, being duly sworn according to law, deposes and says that he served a true and correct copy of the Motion For Reconsideration and Rule Returnable dated August 9, 2010 by placing the same in the United States Mail, certified mail, return receipt requested, postage pre-paid, at Sunbury, Pennsylvania, on August 13, 2010 and received by Counsel for the Defendant on August 19, 2010, addressed as follows: Larry L. Miller, Esquire Miller Law Offices, PC 1423 State Road Duncannon, PA 17020 The return receipt card is attached hereto as Exhibit "A". da s C. Bathgate, Esquire Sworn to and subscribed before me this 20th day of August, 2010. n" Not ry Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Carolyn J. McGlinn, Notary Public Point Twp., Northumberland County My Commission Expires Nov. 23, 2012 Member, Pennsylvania Association of Notaries EXHIBIT "A" ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. Print your name and address on the reverse so that we can return the card to you. Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: La, y I . rn, i1er, C -S rn; late Law OI L", ?e / y.2 3 S 5.a R-Oa..ol joA J 702 U Y Signature X Agent ? Addressee 01 B./ Z7iv by (Printv*1d Na a?Iry D. Is delivery address different from item 19 r 0 Yes If YES, enter delivery address below: 0 No 3. Service Type 00eRifled Mail 0 Express Mail 0 Registered 0 Return Receipt for Merchandise 0 Insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number 7008 1830 0002 1508 9419 (Transfer from service label) PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 CUMBERLAND ANALYTICAL ASSOCIATES, LLC, Plaintiff V COLONIAL SURETY AGENCY,: LLC, a/k/a COLONIAL SURETY COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2009-8859 CIVIL TERM IN RE: MOTION FOR RECONSIDERATION ORDER OF COURT AND NOW, this 7th day of October, 2010, this matter having been called for argument, the order of July 13, 2010, is vacated. The parties are given an opportunity within thirty days of today's date to request a hearing to determine the appropriateness of sanctions, and, if appropriate, the amount thereof, with either party given leave to file. By the Court, .,-' James C. Bathgate, Esquire Robert J. Muolo, Esquire For Plaintiff ,,-?Larry Miller, Esquire For Defendant bg (I Es r-,.?c 1 .44 d-t, Kevin Hess, P.J. d? r-r t C:) - { ? ? ?? T ? I .J 1-7-7 ~' CUMBERLAND ANALYTICAL IN THE COURT OF COMMON PLEAS OF ASSOCIATES, LLC, Plaintiff "' CUMBERLAND COUNTY, PENNSYLVANIA VS CIVIL ACTION COLONIAL SURETY AGENCY, LLC, NO.2009 - 8859 Civil Term a/k/a COLONIAL SURETY COMPANY Defendant COMPULSORY ARBITRATION PRAECIPE FOR DISCONTINUANCE TO THE PROTHONOTARY: Please mark the above-captioned action as settled, discontinued and ended with prejudice. Respectfully submitted, DATED: ~~~21~/D DATED: ~D Lam' ~o WIEST, MUOLO, NOON & SWINEHART BY: J e C. Bathgate, squire Coun e! for Plaintiff MILLER LAW O,J~FICES, P.C. C BY: La :1Vliller Esquire Counsel for Defendant f'~ ~f~ "°~ ".- O ~ ~ ~ ~~ ~ ~ ~ J ~ ~ ~ .u+` ~'~ ~~ ~ ~::~ ......y~i ~~~ _.,~ .~ CUMBERLAND ANALYTICAL IN THE COURT OF COMMON PLEAS OF ASSOCIATES, LLC, Plaintiff "' CUMBERLAND COUNTY, PENNSYLVANIA VS "CIVIL ACTION COLONIAL SURETY AGENCY, LLC, '` NO. 2009 - 8859 Civil Term a/k!a COLONIAL SURETY COMPANY Defendant '` COMPULSORY ARBITRATION DISCONTINUANCE AND NOW, this ~~~day of ~~f~~/ , 2010, the above-captioned action is hereby marked settled, discontinued and ended with prejudice.