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Home My WebLink About10-4348,_ - nV 2rJ,i1v JiI_ ( ? 11 =4 4vl?p. , ?., ? 1Y! McCorkel Construction, Inc. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA M. Webster Construction Inc. and Michael J. Webster NO. 20 Defendant : Civil Term NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILLING 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 JUDGEMENT 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 PEOPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 om d "/V IQ 1l ) dA(r REAGER & ADLER, P.C. BY: THEODORE A. ADLER, ESQUIRE Attorney I.D. No. 16267 TAdler@ReagerAdlerPC.com By: WAYNE S. MARTIN, ESQUIRE Attorney I.D. No. 208078 WMartin@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 MCCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS SERVICES, INC. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. ; No.. M. WEBSTER CONSTRUCTION, INC. and MICHAEL J. WEBSTER Defendants : CIVIL ACTION - LAW COMPLAINT Plaintiff, McCorkel Construction Services, Inc., by its undersigned attorneys brings this Complaint against Defendants, M. Webster Construction, Inc. and Michael J. Webster and in support thereof avers as follows: PARTIES 1. Plaintiff, McCorkel Construction Services, Inc. ("McCorkel") is a Pennsylvania corporation, with its principal office located at 1405 Zimmerman Road, Carlisle, Cumberland County, Pennsylvania, 17015. 2. Defendant, M. Webster Construction Inc. ("Webster Construction") is a Pennsylvania corporation with a registered office address of 805 Pershing Street, Lebanon, Pennsylvania 17042. 3. Defendant, Michael J. Webster is an adult individual with an address of 805 Pershing Street, Lebanon, Pennsylvania 17042. 4. Michael J. Webster is, upon information and belief, the Chief Executive Officer of Webster Construction. 5. Michael J. Webster, upon information and belief, is the President of Webster Construction. 6. Michael J. Webster, upon information and belief, is the Vice President of Webster Construction. 7. Michael J. Webster is, upon information and belief, the Treasurer of Webster Construction. 8. Michael J. Webster is, upon information and belief, the Secretary of Webster Construction. 9. Uncle Bob's is the owner of the property located at 6358 Bay Shore Drive, Mechanicsburg, Pennsylvania ("Property"). FACTUAL BACKGROUND 10. In 2009, McCorkel entered into a contract with Sovran Self Storage, Inc. ("Sovran"), whereby McCorkel agreed to construct a climate controlled, two-story self storage unit on the Property ("Project"). 11. After entering into the agreement with Sovran, McCorkel sought estimates to subcontract the concrete work on the Project. 12. One of McCorkel's subcontractors, Miller Building Systems ("Miller"), provided Webster Construction with a set of contract drawings for the Project to allow Webster Construction to prepare a bid for the concrete work. 13. On or about November 18, 2009, Webster Construction provided McCorkel with a "Service Invoice" offering to provide the labor and equipment necessary to pour a concrete foundation and the slab work for two floors for $23,450.00 based on the set of contract drawings provided by Miller. A true and correct copy of the Service Invoice is attached hereto as Exhibit "A" and is incorporated herein by reference. 14. McCorkel verbally accepted Webster Construction's November 18, 2009 offer to Michael J. Webster. 15. Thereafter, McCorkel provided Webster Construction with an additional set of contract drawings. Upon information and belief, Defendants are in possession of a complete set of these contract drawings; which are too large and voluminous to attach to this Complaint. 16. On December 29, 2009, Webster Construction poured the first floor concrete slab. 17. The temperature at the job site at the time Webster Construction poured the first floor slab was approximately sixteen degrees Fahrenheit with twenty one mile per hour winds gusting to forty five miles per hour. 18. The exposure of the first floor slab to the freezing temperatures caused the areas of the slab to scale and flake. 19. Webster Construction's employees walked on the uncured concrete of the first floor slab leaving behind footprints. 20. The first floor slab did not meet the hardness requirements of the contract. 21. The first floor slab installed by Webster Construction failed to adhere to industry standards and failed to adhere to the standards set forth in the contract drawings. 22. Webster Construction attempted to repair the first floor slab by grinding and recoating. 23. Webster Construction failed to repair the first floor slab to bring it to an acceptable standard. 24. On March 16, 2010, Webster Construction poured the second floor concrete slab. 25. Portions of the second floor slab installed by Webster Construction failed to adhere to industry standards and failed to adhere to the standards set forth in the contract drawings. 26. Webster refused to repair or replace the unacceptable slabs. 27. McCorkel entered into a subcontract with C.A. PrepRite to grind, patch, overlay, repair and stain the concrete floors installed by Webster Construction and to bring the slabs to an acceptable standard. 28. To date, McCorkel has spent $80,506.30 to repair the concrete slabs installed by Webster Construction. JURISDICTION / VENUE 29. This Court has jurisdiction and venue over this matter because: (a) Defendant, Webster directed its offer at Plaintiff, McCorkel, a resident of Cumberland County, Pennsylvania; (b) McCorkel accepted Webster's offer and the contract was formed in Cumberland County, Pennsylvania; (c) Performance of the contract occurred in Cumberland County, Pennsylvania; and (d) The injury arising out of Webster's failure to perform occurred in Cumberland County, Pennsylvania. COUNTI Breach of Written Contract McCorkel Construction Services, Inc. v. M. Webster Construction, Inc. 30. McCorkel incorporates herein by reference the averments of paragraphs 1 through 29 as if set forth fully herein. 31. The Service Invoice that Webster Construction provided to McCorkel offered to provide the labor and equipment necessary to pour a concrete foundation and the slab work for two floors at the Project for $23,450.00 based on the contract drawings provided to Webster Construction by McCorkel. 32. The Service Invoice formed a written contract when McCorkel verbally accepted the offer and when Webster Construction began installing the concrete slabs based upon the Service Invoice. 33. Webster Construction breached its duty under the Service Invoice by failing to install the concrete foundation and slab work in accordance with the contract drawings upon which the Service Invoice was based. 34. Webster Construction failed to perform the foundation and slab work in accordance with applicable industry standards. 35. Webster Construction failed to perform the foundation and slab work in accordance with acceptable workmanship standards. 36. As a result of Webster Construction's breach of contract, McCorkel has suffered damages in the principal amount of $57,056.30 ($80,506.30 repair cost less the contract amount of $23,450.00). 37. All conditions precedent for the bringing of this action have occurred and/or have been performed. WHEREFORE, Plaintiff, McCorkel Construction Services, Inc., demands judgment in its favor and against Defendant, M. Webster Construction Inc. under Count I in the amount of $57,056.30 plus interest, costs, attorney's fees and such other relief as the Court deems appropriate. COUNT II In the Alternative Breach of Oral Contract McCorkel Construction Services, Inc. v. M. Webster Construction, Inc. 38. McCorkel incorporates herein by reference the averments of paragraphs 1 through 37 as if set forth fully herein. 39. A legal binding oral contract was formed when McCorkel verbally accepted Webster Construction's offer to provide the labor and equipment necessary to pour a concrete foundation and the slab work for two floors at the Project for $23,450.00 and when Webster Construction began installing the concrete slabs. 40. Webster Construction breached its duty under the contract by failing to follow any industry standard in installing the concrete foundation and slab work. 41. As a result of Webster Construction's breach of contract, McCorkel has suffered damages in the principal amount of $57,056.30 ($80,506.30 repair cost less the contract amount of $23,450.00). 42. All conditions precedent for the bringing of this action have occurred and/or have been performed. WHEREFORE, Plaintiff, McCorkel Construction Services, Inc., demands judgment in its favor and against Defendant, M. Webster Construction Inc. under Count II in the amount of $57,056.30 plus interest, costs, attorney's fees and such other relief as the Court deems appropriate. COUNT III Piercing the Corporate Veil McCorkel Construction Services, Inc. v. Michael J. Webster 43. McCorkel incorporates herein by reference the averments of paragraphs 1 through 42 as if set forth fully herein. 44. Webster Construction is undercapitalized. 45. In a meeting with Jim Boggs, Estimator with McCorkel Construction, Michael J. Webster admitted that Webster Construction is undercapitalized. 46. It is believed and therefore averred that Webster Construction has annual revenue of $385,000. 47. As of June 2, 2010 Webster Construction had only one open and active bank account in Pennsylvania. 48. As of June 2, 2010 Webster Construction's lone bank account had an account balance of -16.03. 49. It is believed and therefore averred that Michael J. Webster owns all the equipment utilized by Webster Construction. 50. Webster Construction's principal place of business and registered office address is Michael J. Webster's home. 51. It is believed and therefore averred that Webster Construction issues no stock or that Michael J. Webster owns all of Webster Construction's corporate stock. 52. Michael J. Webster is the only officer of Webster Construction. 53. At all times relevant hereto Michael J. Webster was the only person actively involved in the day-to-day operations of Webster Construction. 54. At all times relevant hereto Michael J. Webster used his control of Webster Construction to further his personal interests. 55. At all times relevant hereto Michael J. Webster was acting on behalf of himself, unjustly seeking corporate protection. WHEREFORE, Plaintiff, McCorkel Construction Services, Inc., demands judgment in its favor and against Defendant, Michael J. Webster under Count III in the amount of $57,056.30 plus interest, costs, attorney's fees and such other relief as the Court deems appropriate. Respectfully submitted, REAGER & ADLER, P.C. Date: July 1, 2010 Theo re A. Adler, Esquire Attorney I.D. No. 16267 Wayne S. Martin, Esquire Attorney I.D. No. 208078 2331 Market Street Camp Hill, PA 17011-4642 (717) 763-1383 Attorneys for Plaintiff 11/18/2009 14:04 ) / /tx C???264 7172732980 WEBESTER CONST M. Webster Construction inc. 805 Peeshing • Street Lebanon, Pennsylvania 17042 717/273-0113 PAGE 01/01 9 sE'Zv'CETyv0'CE 1 BILL TO J08 LOCATION 46 O 6 S TERNS: A FINANCE CHARGE OF M PER MONTH (ANNUAL RATE OF 18%) WILL BE CNAROEO ON BALANCFQ oven an nsva OAT6 NTITY SOLO .Y []CASH C.O.D. CHARGES ?MDSE. RETD. OE9GAIPTIOM PgILE AMOUNT /1 ?_U ?..... Vim- . ` _. ?? .. _. ?. ?j 4 U fn- DESCRIPTION MON. TUES. WEO: THURS. FRI. SAT, SUN. TOTAL OF WORK P MATERIAL K SALES TAX TOTAL • L S Powe LABOR d I F A B/ n.. S TOTAL AMOUNT _ ?• F•.I ?RUm I M. lnvulf-C. nu UTMER 5TATEMENT WILL BE RENDERED EXHIBIT -A- VERIFICATION I, Joseph B. McCorkel, hereby verify that I am the President of McCorkel Construction Services, Inc., and, as such, i am authorized to verify the averments of the foregoing Complaint are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: June,?S , 2010 By: oseph B. McCorkel, President DETHLEFS-PYKOSH LAW G OUP, LLC BY: DARRELL C. DETHLEFS ESQUIRE Attorney I.D. No. 58805 ddethlefs@aol.com 2132 Market Street Camp Hill, PA 17011 Telephone: (717) 975-944 Facsimile: (717) 975-2309 2010 J~.~~ i 9 l l i~ ;~ ~.7 ~iv,:7 (i.. 4~,..,j~~~r ~; McCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS SERVICES, INC. :CUMBERLAND COUNTY, PENNSYLVANIA PI intiff .No.. Iv _' M. WEBSTER COIVSTRU TION, INC. And MICHAEL J. WEBSTER D fendants :CIVIL ACTION -LAW PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOT Please enter the'appea nce of Darrell C. Dethlefs, Esquire, of Dethlefs-Pykosh Law Group, LLC, as attorney for the Defe dants, M. Webster Construction, Inc.,an~! Michael J. Webster. / \ _.._ Darrell C. Dethlefs, Esquire ~• DETHLEFS-PYKOSIE/ LAW GROUP, LLC BY: DARRELL C. DETHLEFS, ESQUIRE Attorney I.D. No. 56805 ddethlefs aol.corll 2132 Market Stree. Camp Hill, PA 1701 Telephone: (717) 975-9446 Facsimile: (717) 95-2309 McCORKEL CONSTRUCTION SERVICES, INC. Plaintiff: ,~ ~~i~ ~_~._ ~2 Ail 9= 17 . ';:~.. _t. ~, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. M. WEBSTER CONSTRUCTION, INC. k And MICHAEL J. WEBST.',ER Defendants No.: 10-4348-CIVIL 2010 CIVIL ACTION -LAW NOTICE TO DEFEND YOU HAVE BEEN ~~UED IN COURT. If you wish to defend against the claims set forth in the following pages, you must fake action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and Oling 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 I:;AWYER. f IF YOU CANNOT -4FFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION AE)OUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR fJ0 FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 (717)249-3166 t~ AVISO LISTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de /as demandas que se presentan mas adelante en /as siguientes paginas, debe tomaraccion dentro de /os proximos veinte (20) dias despues de la no~ificacion de esta Demands y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falls de tomar accion como se describe anteric~rmente, el caso puede proceder sin usted y un fallo por cua/quier sums de dinero reclamada en la dpmanda o cua/quier otra reclamacion o remedio solicitado por e/ demandante puede ser dictado en conga suya por /a Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos im~r~ortantes Para usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO T1ENE UN ABOGADO, LLAME 0 VAYA A LA S/GU/ENTE OFIC/NA. ESTA OF/C/NA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. r SI LISTED NO PUEc~E PAGAR POR LOS SERV/CIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER I;NFORMA- C10N SOBRE AGENC/AS QUE OFREZCAN SERV/CIOS LEGALES SIN CARGO O BAJO COSTO A PEFfiSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 (717) 249-3166 t DETHLEFS-PYKOSM LAW GROUP, LLC BY: DARRELL C. DETHLEFS, ESQUIRE Attorney I.D. No. 58805 ddethlefsLa~aol.com 2132 Market Street Camp Hill, PA 17011 Telephone: (717) 975-9446 Facsimile: (717) 97, 5-2309 McCORKEL CONSTRUCTION SERVICES, INC. '_ Plaintiff v. M. WEBSTER CONSTRUCTION, INC. And MICHAEL J. WEBSTER Defendants TO: Wayne S. Martin, Esquire REAGER &c ADLER, P.C. 2331 Market Street Camp Hilly PA 17011 IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA No.: 10-4348-CIVIL 2010 CIVIL ACTION -LAW You are hereby notified to file a written response to the enclosed New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. /~ Dethlefs, Esquire DETHLEFS-PYKOSh LAW GROUP, LLC BY: DARRELL C. DETHLEFS, ESQUIRE Attorney I.D. No. 58805 ddethlefs~aol.com 2132 Market Street Camp Hill, PA 170:1.1 Telephone: (717) 975-9446 Facsimile: (717) 9;°5-2309 McCORKEL CONSTRUCTION SERVICES, INC. Plaintiff a v. M. WEBSTER CO~`dSTRUCTION, INC. And ; MICHAEL J. WEB:}TER Defendants t IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 10-4348-CIVIL 2010 CIVIL ACTION -LAW ANSWER. NEW MATTER and COUNTERCLAIM Defendants, M. Webster Construction, Inc. and Michael J. Webster, by its undersigned attorney, Answer the Complaint brought by Plaintiff, McCorkel Construction Services, Inc., and brings this New (~~latter and Counterclaim in response thereto: PARTIES 1. Admitted. 2. Admifted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admir~ted. 9. Specifically denied. Defendant is without information with which to form a belief as to the truth of the averment contained in Paragraph 9; and, therefore, specifically denies the same. FACTUAL BACKGROUND 10. Specifically denied. Defendant is without sufficient information with which to form a belief as to the averment contained in Paragraph 10; and, therefore, specifically denies the same. 11. Specifically denied. Defendant is without sufficient information with which to form a belief as to the averment contained in Paragraph 11; and, therefore, specifically denie the same. 12. Specifically denied as stated. The Defendant, M. Webster Construction, Inc., specifically denies that it was requested to prepare a bid for the "concrete work". At all times relevant to the construction of the project at 6358 Bayshore Drive, Mechanicsburg, Pennsylvania, McCorkel Construction Services, Inc. was in charge of the "concrete work". The bid which the Defendant was requested to provide was a bid t~ supply "labor only" for the concrete work. The contract which Plaintiff attaches to its Complaint specifies that the bid was a "labor only" bid. r .s 13. Specifically denied as stated. Defendant specifically denies that it was to provide both Tabor and all equipment necessary to pour a concrete foundation and for the contact price of $23,450.00. The contract price for "labor only" was $28,450.00. r McCorkel Construction Services, Inc. provided the cement for the project. McCorkel Const~~uction Services, Inc. provided all equipment except for the pump. 14. Admitted. 15. Admitted. 16. Speci{ically denied as stated. Defendant, M. Webster Construction, Inc., specifically denies that on December 29, 2009, it poured the first floor concrete slab. But rather`, as stated, the Plaintiff, McCorkel Construction Services, Inc., was in charge of the concrete job. M. Webster Construction, Inc. only provided the labor in conn€`••ction with the first floor concrete slab. 17. Admitted. By way of further response, M. Webster Construction, Inc. was not in chargA of picking the date with which to do the concrete job. At all times relevant to the ~ onstruction of the project at 6358 Bayshore Drive, Mechanicsburg, Pennsylvania, McCorkel Construction Services, Inc. was in charge of the concrete job. McCorkel Construction Services, Inc. picked the date of the job and McCorkel Construction Services, Inc. ordered the concrete and paid for the delivery of the concrete. McCorkel Construction Services, Inc. also decided the type of concrete mix to use on the project. Defendant, M. Webster Construction, Inc. was advised of the date that the job would be completed and was requested to provide "labor only" for the concrete. i 18. Admitted in part and Denied in part. Defendant, M. Webster Construction, Inc., admits that the exposure of the first floor slab to freezing temperatures was one of the causes of the slab scaling and flaking. M. Webster Construction, Inc., specifically denies that this was the only cause of the scaling and flaking. Other causes included the failure of McCorkel Construction Services, Inc. to remove snow from the project and tFiat as the snow would melt pockets of water would sit on the construction slab and teen freeze and then melt again causing scaling and flaking. Other causes included the inco"rrect concrete mixture. 19. Admitted in part and Denied in part. M. Webster Construction, Inc., admits that its employees walked on the uncured concrete on the first floor slab. By way of further response, M. Webster Construction, Inc. employees walked on the slab in order to set the thermal blankets that were owned by McCorkel Construction Services, Inc. over the concrete so that the cement would cure. Any implication that the only employees walking on the uncured concrete were M. Webster Construction, Inc. is specifically denied. By way of further response, M. Webster Construction, Inc. avers that the employees from McCorkel Construction Services, Inc. also walked on the uncured concrete in order to set the thermal blankets required to cure the concrete. 20. Specifically denied. Defendant is without sufficient information with which to form F a belief as to the averment contained in Paragraph 20; and, therefore, specifically denied the same. a 21. Specifically denied. Defendant is without sufficient information with which to form a belief as to the averment contained in Paragraph 21; and, therefore, specifically denies the same. 22. Admitted. 23. Specifically denied. Defendant is without sufficient information with which to form a belief as to the averment contained in Paragraph 23; and, therefore, specifically denies the same. 24. Specifically denied as stated. On March 16, 2010, M. Webster Construction, Inc. provided the labor to pour the concrete for the second floor slab. 25. Specifically denied. Defendant is without sufficient information with which to form :~ a belief as to the averment contained in Paragraph 25; and, therefore, specifically denies the same. i 26. Admitted. By way of further response, M. Webster Construction, Inc. was contracted to provide "labor only". McCorkel Construction Services, Inc. was in chargQ of the concrete project. 27. Specifically denied. Defendant is without sufficient information with which to form a belief as to the averment contained in Paragraph 27; and, therefore, specifically denies the same. 28. Specifically denied. Defendant is without sufficient information with which to form a belief as to the averment contained in Paragraph 28; and, therefore, specifically denies the same. JURISDICTION /VENUE 29. Admitted. Y COUNTI ,: Breach of Written Contract Mcf~orkel Construction Services, Inc. v. M. Webster Construction, Inc. 30. Defendant, M. Webster Construction, Inc., incorporates herein by reference the averments contained in Paragraphs 1 through 29 as if fully set forth herein. 31. Specifically denied. M. Webster Construction, Inc. offered to provide McCorkel Construction Services, Inc. with "labor only" to pour the concrete foundation and for slab work for two (2) floors at the project for $28,450.00. 32. Admitted. sy way of further response, the contract states that it was a "labor only" job. McCorkel Construction Services, Inc. was in charge of all other aspects of the concrete project. 33. Specifically denied. M. Webster Construction, Inc. specifically denies that it breached its duty under the Service Invoice by failing to install the concrete foundation and slab work in accordance with the contract drawings upon which the Service Invoice was based. M. Webster Construction, Inc., was requested only to provic'e labor. Any problems in the concrete foundation and slab work resulted from +McCorkel Construction Services, Inc.'s decision to proceed with the concrete ~, work on the day in question under the temperatures that prevailed. All decisions regarding the construction of the concrete work including the concrete mix to use were made by McCorkel Construction Services, Inc. 34. Specifically denied. Defendant is without sufficient information with which to form a belief as to the averment contained in Paragraph 34; and, therefore, specifically denies the same. f 35. Speci ~ically denied. Defendant is without sufficient information with which to form a belief as to the averment contained in Paragraph 35; and, therefore, specifically denies the same. 36. Specifically denied. By way of further response, the contract amount was $28,450.00. 37. Specifically denied. Defendant is without sufficient information with which to form t a belief as to the averment contained in Paragraph 37; and, therefore, specifically <: denies the same. WHEREFORE, Defendant, M. Webster Construction, Inc., demands judgment in its favor, plus its costs, attorney's fees and such other relief as the Court deems appropriate. COUNT II In the Alternative Breach of Oral Contract McCorkel Construction Services, Inc. v. M. Webster Construction, Inc. 38. Defendant, M. Webster Construction, Inc., incorporates herein by reference the averments of Paragraphs 1 through 37 as if fully set forth herein. 39. Specifically denied as stated. Defendant, M. Webster Construction, Inc., agreed to provide "labor only" for the concrete work for the two floors at the contract price of $28,4$0.00. 40. Specifically denied. Defendant is without sufficient information with which to form a belief as to the averment contained in Paragraph 40; and, therefore, specifically denies the same. 41. Specifically denied. Defendant is without sufficient information with which to form a belief as to the averment contained in Paragraph 41; and, therefore, specifically denied the same. 42. Specifically denied. Defendant is without sufficient information with which to form a belief as to the averment contained in Paragraph 42; and, therefore, specifically denies the same. WHEREFfJRE, Defendant, M. Webster Construction, Inc., demands judgment in its favor, under Count II, ~ plus its costs, attorney's fees and such other relief as the Court deems appropriate. ' COUNT III Piercing the Coraorate Veil McCorkel Construction Services, Inc. v. Michael J. Webster 43. Defendant, Michael J. Webster, incorporates herein by reference the averments of Paragraphs 1 through 42 as if fully set forth herein. 44. Specifiically denied. M. Webster Construction, Inc. specifically denies that it is undercapitalized. 45. Specifically denied. Michael J. Webster specifically denies that when he met with Jim Boggs that he admitted that M. Webster Construction, Inc. was undercapitalized. To the contrary, M. Webster Construction, Inc. is sufficiently capitalized. 46. Admitted. 47. Admitted. 48. Admitted. By way of further response, any implication that the company had a value of -$16.03 or had assets of only -$16.03 is specifically denied. 49. Specifically denied. Michael J. Webster does not own all the equipment utilized by M. Webster Construction, Inc. To the contrary, M. Webster Construction, Inc., owns substantial equipment and substantial assets. 50. Admitted. 51. Admitted. Michael J. Webster admits that he owns 100% of the corporate stock issued in M. Webster Construction, Inc. 52. Admitted. 53. Admitted. 54. Specifically denied. Michael J. Webster specifically denies that he uses his control of M. Webster Construction, Inc. to further his personal interest. To the contrary, Michael J. Webster uses his control to benefit the corporation. 55. Specifically denied. Michael J. Webster specifically denies that all times relevant hereto he was acting on behalf of himself and unjustly sought corporate protection. r WHEREFORE, Defendant, Michael J. Webster, demands judgment in its favor on Count III, plus its costs, attorney's fees and such other relief as the Court deems appropriate. NEW MATTER t 56. Defendants, M. Webster Construction, Inc. and Michael J. Webster, incorporate and make~part of this New Matter Paragraphs 1 through 55 of the foregoing Answer to Plaintiff s Complaint as if fully set forth herein. 57. Plaintiff's Action may be barred by the doctrine of estoppel. 58. Plaintiff's Action may be barred by the doctrine of waiver. 59. PlaintifYs Action may be barred by the doctrine of unclean hands. WHEREFORE, the Defendants, M. Webster Construction, Inc. and Michael J. Webster, respectfully demand a judgment in their favor and against Plaintiff with costs, attorney's fees and any other relief the Court deems just. COUNTERCLAIM.- COUNT I Breach of Contract M. Webster Construction, Inc. v. McCorkel Construction Services, Inc. 60. M. V4'ebster Construction, Inc. incorporates and makes a part of this count Paragraphs 1 through 59 of this Answer, New Matter and Counterclaim as if fully set forth l5erein. 61. M. Webster Construction, Inc. entered into a contract to provide "labor only" for a concrete job located at 6358 Bayshore Drive, Mechanicsburg, Pennsylvania. A true and correct copy of the "labor only" contract was attached to the Plaintiff's Compiaint. 62. The "labor only" contract provided for the payment of $28,450.00 to M. Webster Construction, Inc. 63. All construction decisions, including when to pour the concrete as well as the ~~ supplying of the concrete and the type of concrete to use, were made by McCorkel ,. Construction Services, Inc. 64. At all times relevant hereto M. Webster Construction, Inc. performed labor services in accordance with applicable industry standards. 65. At all .times relevant hereto, M. Webster Construction, Inc. performed the labor in connFCtion with the foundation and slab work in accordance with acceptable workmanship standards. 66. McCorkel Construction Services, Inc. has failed to pay any money to M. Webster Construction, Inc. 67. All conditions precedent for bringing this action have occurred and/or have been performed. WHEREFORE, M. Webster Construction, Inc. demands judgment in its favor in the amount of $28,450.00, plus interest, costs, attorney's fees and such other relief as the Court deems appropria#e. COUNTERCLAIM -COUNT II Unjust Enrichment M. Webster Construction, Inc. v. McCorkel Construction Services, Inc. 68. M. Vl-'ebster Construction, Inc. incorporates and makes a part of this count Parag~`aphs 1 through 67 of this Answer, New Matter and Counterclaim as if fully set forth herein. 69. M. Webster Construction, Inc. provided McCorkel Construction Services, Inc. with a service invoice for "labor" services totaling $28,450.00. A photocopy of the service invoice is attached to the original Complaint filed by the Plaintiff. 70. M. Webster Construction, Inc. believes and, therefore, avers that by not paying the invoica as referenced in the above paragraph and on the service invoice, the Defendant realized the benefit of having work done to real property to the 3 detriment of M. Webster Construction, Inc. 71. The ~riork done by M. Webster Construction, Inc. was a benefit conveyed unto r McCorkel Construction Services, Inc. whereby McCorkel Construction Services, Inc. realized the gain and use of the services of M. Webster Construction, Inc. without payment to M. Webster Construction, Inc. c 72. M. 1l~!ebster Construction, Inc. believes and, therefore, avers that McCorkel r Construction Services, Inc. appreciated a benefit. 73. M. V~'lebster Construction, Inc. believes and, therefore, avers that McCorkel Constt uction Services, Inc. was unjustly enriched by receiving the labor and services provided by M. Webster Construction, Inc. and then not paying for the labor and services requested. 74. M. V1~ebster Construction, Inc. believes and, therefore, avers that it would be unconscionable for McCorkel Construction Services, Inc. to not be required to pay M. Webster Construction, inc. for the labor and services rendered and performed by i M. Webster Construction, Inc. and its employees for the benefit of McCorkel Construction Services, Inc. WHEREFORE, M. Webster Construction, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against McCorkel Construction Services, Inc. in the amount of $28,450.00 plus costs of suit and any other relief this Honorable Court deems is necessary and just. COUNTERCLAIM -COUNT 111 Contractor Subcontractor Payment Act M. Webster Construction, Inc. vs. McCorkel Construction Services, Inc. 75. M. Webster Construction, Inc. incorporates and makes a part hereof the preceding Paragraphs 1 through 74 as if fully set forth herein. 76. M. Webster Construction, Inc. believes and, therefore, avers that this matter is controlled by the Contractor and Subcontractor Payment Act, 73 Pa.C.S. Section 501 et seq., hereinafter the "CSPA". 77. McCorkel Construction Services, .Inc. is a "contractor" as defined by the CSPA. 78. M. Webster Construction, Inc. is a "subcontractor" as defined by the CSPA. CSPA is applicable to the service contract entered into between M. Webster Construction, ~; Inc. and McCorkel Construction Services, Inc. 79. M. Webster Construction, Inc. fully executed his duties pursuant to the service contract. 80. M. Webster Construction, Inc. is not in breach of the contract. 81. M. Webster Construction, Inc. provided "labor" for the cement job on December 29, i 2009 and on March 16, 2010. 82. There is no mention in the aforementioned service invoice of a condition precedent to pad%ment to M. Webster Construction, Inc. for services provided. 83. Pursuant to 73 Pa.C.S. Section 504, performance by M. Webster Construction, Inc. in accordance with the service invoice contract entitles M. Webster Construction, Inc. to pad=ment from McCorkel Construction Services, Inc. 84. M. Webster Construction, Inc. invoiced McCorkel Construction Services, Inc. for the work completed by M. Webster Construction, Inc. as provided for under the service invoice. 85. To date, M. Webster Construction, Inc. has not been paid by McCorkel Construction Services, Inc. for the aforementioned labor provided. 86. McCorkel Construction Services, Inc. did not notify M. Webster Construction, Inc. of any d~2ficiency in M. Webster Construction, Inc.'s work within seven (7) calendar days after completion of the labor provided. Therefore, McCorkel Construction Services, Inc. is barred from withholding payment to M. Webster Construction, Inc. and is barred in asserting the claim for $57,056.30 for work allegedly completed by L another company. a 87. As a result of McCorkel Construction Services, Inc.'s failure to comply with the CSPA, s M. V1r'ebster Construction, Inc. is entitled to recover the following quantifiable dama;;es: a. Interest from March 30, 2010, the date established by the CSPA; b. A penalty for failure to comply with the CSPA equal to one percent (1%) per month of the amount wrongfully withheld pursuant to 73 Pa.C.S. Section ' S12(a); and, c. ~ An award of attorney's fees, costs and expenses to M. Webster Construction, Inc. as the prevailing party in this proceeding pursuant to 73 Pa.C.S. Section 512(b). L WHEREPQRE, M. Webster Construction, Inc. respectfully requests this Honorable Court enter judgment against McCorkel Construction Services, Inc. in the amount of $28,450.00 with a penalty of one percent (1%) from March 30, 2010 per month pursuant to 73 Pa.C.S. Section 507(d). A penalty for failure to comply with the CSPA equal to one percent (1%) per month of the amount wrongfully withheld pursuant to 73 Pa.C.S. Section 512 and award of attorney's fees, costs and .expenses to M. Webster Construction, Inc. as the prevailing party in the proceeding pursuant to 73 Pa.C.S. Section 512(b). Respectfully Submitted: DETHLEF Y OSH LAW GROUP, LCC Date: a Z 1 ~~ Darrell C. Dethlefs, Esquire Attorney ID No. 58805 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 Attorney for Defendants VERIFICATION I, Michael J. Webster, hereby verify that the statements of fact made in the foregoing docurnents are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C. S. Section 4904, relating to unsworn falsification to authorities. Date: ~ ~ ~-~- ~ d Michael J. ster DETHLEFS-PYKOSH LAW GROUP, LLC BY: DARRELL C. DETHLEFS, ESQUIRE Attorney I.D. No. 58805 ddethlefs(a~aol.com 2132 Market Street Camp Hill, PA 17011 Telephone: (717) 975-9446 Facsimile: (717) 975-2309 McCORKEL CONSTRUCTION SERVICES, INC. Plaintiff v. M. WEBSTER CONSTRUCTION, INC. And MICHAEL J. WEBSTER Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 10-4348-CIVIL 2010 CIVIL ACTION -LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing ANSWER, NEW MATTER and COUNTERCLAIMS was hereby served by depositing the same within the custody of the United State Postal Service, First Class, postage prepaid, addressed as follows: Wayne S. Martin. Esquire S REAGER & ADLE~, P.C. 2331 Market Street Camp Hill, PA 17011 Respectfully Su~rr~itted: Dated:_~" ~~~(~ BY: I C. Dethlefs, Esquire SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~~~,ttitr n[ ~e+nbr~~7~ ~~ u .,d~ ~iCE +F rho SHERIFF ., , ,_, 'r-iL - Ti-~' ~ `,'~v Jody S Smith Chief Deputy Richard W Stewart Solicitor ~M g~~~3 McCorkel Construction Services, Inc. Case Number vs. Michael J. Webster (et al.) 2010-4348 SHERIFF'S RETURN OF SERVICE 07/06/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search .and inquiry for the within named defendant, to wit: Michael J. Webster, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Lebanon County, PA to serve the within Complaint and Notice according to law. 07/06/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: M. Webster Construction, Inc., but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Lebanon County, PA to serve the within Complaint and Notice according to law. 07/09/2010 01:30 PM -Lebanon County Return: And now July 9, 2010 at 1330 hours I, Michael J. DeLeo, Sheriff of Lebanon County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: M. Webster Construction, Inc. by making known unto Joann Webster, adult in charge at 805 Pershing Street, Lebanon, PA 17042 its contents and at the same time handing to'her personally the said true and correct copy of the same. 07/09/2010 01:30 PM -Lebanon County'. Return: And now July 9, 2010 at 1330 hours I, Michael J. DeLeo, Sheriff of Lebanon County, Pennsylvahia, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Michael J. Webster by making known unto Joann Webster, Wife of defendant at 805 Pershing Street, Lebanon, PA 17042 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $53.00 July 22, 2010 SO ANSWERS, ~~-~._~ RON R ANDERSON, SHERIFF (c} CountySuite Sheriff, Teleosoff, hoc. CIVIL COMPLAINT No. 10-4348 (Return to Cumberland Cou~hty) McCorkel Construction Services, Inc. vs. M. Webster Construction, Init. and Michael J. Webster STATE OF PENNSYLVANIA' } COUNTY OF LEBANON } SS: David Heath, Deputy Sheriff, within CIVIL COMPLAINT WEBSTER the within named personally to Joann Webster, July 9, 2010 at 1:30 P.M. at 8 Pennsylvania, and by making Reager & Adler, P.C. Theodore A. Adler, Esquire 2331 Market Street Camp Hill, PA 17011 717-763-1383 Docket Page 32406 ing duly sworn according to law, deposes and says that he served the >n M. WEBSTER CONSTRUCTION, INC. AND MICHAEL J. 3FENDANTS, by handing two true and attested copies thereof, being the Wife of Owner and Person in Charge at the time of service on Pershing Street, Lebanon (North Lebanon Township), Lebanon County, own to her the contents of the same. Sworn to and subscribed before me This 19th day of July, 2010 _ ~ Notary Public ~__--- T .. DY1 ~1 :,E~E ~ - ~ (1'1 ~~CY2I'}~ i 17 o11C ~ -,..F,; , ~ ` ,.~;;z3 ciunty SO ANSWERS, ~ - ~~~,~f~ ~S DEPUTY SHERIFF Is SHERIFF SHE~2IFF'S COSTS IN ABOVE PROCEEDINGS Advanced Costs paid on 07/08/10 Check No. 28261 Amount $ 135.00 Costs Incurred: Amount $ 48.50 Refund: CheckNo~~`"1(j~ Amount $ 86.50 All Sheriff's Costs shill be due and payable when servicffes are performed, and it shall be lawful for him to demand a d receive from the party instituting the proceedings, or any party liable for the costs thereof, all unpaid sheriff's fees on the same before he shall be obligated by law to make return thereof. Sec. 2, Act of June 20, 1911, P.L. 1072 REAGER &ADLER, P.C. BY: THEODORE A. ADLER, ESQUIRE Attorney I.D. No. 16267 TAdler@ReagerAdlerPC.com By: WAYNE S. MARTIN, ESQUIRE Attorney I.D. No. 208078 WMartin@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 MCCORKEL CONSTRUCTION SERVICES, INC. Plaintiff v. M. WEBSTER CONSTRUCTION, INC. and MICHAEL J. WEBSTER Defendants n~'^= r- i ~. ~ ~ i ~T ' ; ' ~ .~"T { r1-r ~ _ - ~ _ - ' Tl O cw ~ -- - ~~ . SU'.. ' .. ::' ~ ~:. - IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 10-4348-CIVIL-2010 CIVIL ACTION -LAW NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAYBE ENTERED AGAINST YOU. REAGER &ADLER, P.C. Date: August ~, 2010 The ore A. Adler, Esquire Attorney I.D. No. 16267 Wayne S. Martin, Esquire Attorney I.D. No. 208078 2331 Market Street Camp Hill, PA 1 70 1 1-4642 (717) 763-1383 REAGER &ADLER, P.C. BY: THEODORE A. ADLER, ESQUIRE Attorney I.D. No. 16267 TAdler@ReagerAdlerPC.com By: WAYNE S. MARTIN, ESQUIRE Attorney I.D. No. 208078 WMartin@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 MCCORKEL CONSTRUCTION SERVICES, INC. Plaintiff v. M. WEBSTER CONSTRUCTION, INC. and MICHAEL J. WEBSTER Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 10-4348-CIVIL-2010 CIVIL ACTION -LAW PLAINTIFF. MCCORKEL CONSTRUCTION SERVICES. INC.'S REPLY TO DEFENDANTS'. M. WEBSTER CONSTRUCTION INC. AND MICHAEL J. WEBSTER'S NEW MATTER AND ANSWER TO COUNTERCLAIM WITH NEW MATTER AND NOW, comes Plaintiff, McCorkel Construction Services, Inc.,, by and through its attorneys Reager & Adler, P.C., and files the within Answer to Defendants, M. Webster Construction, Inc.'s and Michael J. Webster's New Matter and Counterclaim, and in support thereof avers the following: REPLY TO NEW MATTER 56. Paragraph fifty-six (56) is an incorporation by reference paragraph to which no responsive pleading is required. 2 57. This Paragraph contains a legal conclusion to which no responsive pleading is required. 58. This Pazagraph contains a legal conclusion to which no responsive pleading is required. 59. This Pazagraph contains a legal conclusion to which no responsive pleading is required. ANSWER TO COUNTERCLAIM COUNT I -Breach of Contract 60. Paragraph sixty (60) is an incorporation by reference pazagraph to which no responsive pleading is required. 61. Denied as stated. The contract attached to the Complaint is a written document which speaks for itself and Defendants' characterization of the contract is specifically denied. 62. Denied. The contract attached to the Complaint is a written document which speaks for itself By way of further answer, it is specifically denied that the contract provided for the payment of $28,450.00 to M. Webster Construction, Inc. (hereinafter "Webster"). To the contrary, the contract, which is attached to the Complaint as Exhibit A, clearly states "Total 23,450.00". 3 63. Denied. It is specifically denied that all construction decisions where made by McCorkel Construction Services, Inc.. To the contrary, Webster was under contract to perform the concrete scope of work. The means, methods and timing of the concrete work was up to Webster. Webster decided to pour the first floor slab when the temperature at the job site was sixteen degrees Fahrenheit with twenty one mile per hour winds gusting to forth five miles per hour. Further, McCorkel Construction Services, Inc. did not prepare the contract drawings or specify the type of concrete to be used on the Project. 64. Denied. It is specifically denied that Webster performed the work in accordance with applicable industry standards. To the contrary, Webster's work failed to adhere to applicable industry standards. McCorkel Construction Services, Inc. spent $80,506.30 to have the slabs ground, patched, overlayed, repaired and stain because of Webster's failure to adhere to applicable workmanship standards. 65. Denied. It is specifically denied that Webster performed the work in accordance with applicable workmanship standards. To the contrary, all the work performed by Webster failed to adhere to applicable workmanship standards. 66. Denied as stated. McCorkel Construction Services, Inc. did not pay Webster for the work because it failed to perform the work in accordance with the contractual requirements. McCorkel Construction Services, Inc. spent $80,506.30 to have the work repaired. 67. This paragraph contains a legal conclusion to which no response is required. 4 WHEREFORE, Plaintiff, McCorkel Construction Services, Inc. respectfully requests this Honorable Court enter judgment in its favor and against Defendant, M. Webster Construction, Inc. COUNT II -Uniust Enrichment 68. Pazagraph sixty-eight (68) is an incorporation by reference pazagraph to which no response is required. 69. Denied. The contract attached to the Complaint is a written document which speaks for itself By way of further answer, it is specifically denied that the contract provided for the payment of $28,450.00 to Webster. To the contrary, the contract, which is attached to the Complaint as Exhibit A, clearly states "Tota123,450.00". 70. This paragraph contains a legal conclusion to which no response is required. By way of further answer, McCorkel Construction Services, Inc. was not benefited by Webster's breach of the contract attached to the Complaint as Exhibit A and McCorkel Construction Services, Inc. suffered damages in the principal amount of $57,056.30 ($80,506.30 repair cost les the contract amount of $23,450.00) on account of M. Webster Construction, Inc.'s breach. 71. This paragraph contains a legal conclusion to which no response is required. By way of further answer, McCorkel Construction Services, Inc. was not benefited by M. Webster Construction, Inc.'s breach of the contract attached to the Complaint as Exhibit A. McCorkel Construction Services, Inc. suffered damages in the principal amount of $57,056.30 5 ($80,506.30 repair cost less the contract amount of $23,450.00) as a result of Webster `s breach of contract. 72. McCorkel Construction Services, Inc. was not benefited by Webster's breach of the contract attached to the Complaint as Exhibit A. McCorkel Construction Services, Inc. suffered damages in the principal amount of $57,056.30 ($80,506.30 repair cost les the contract amount of $23,450.00) as a result of Webster's breach. 73. McCorkel Construction Services, Inc. was not unjustly enriched by Webster's breach of the contract attached to the Complaint as Exhibit A. McCorkel Construction Services, Inc. suffered damages in the principal amount of $57,056.30 ($80,506.30 repair cost les the contract amount of $23,450.00) as a result of Webster's breach. 74. This paragraph contains a legal conclusion to which no response is required. WHEREFORE, Plaintiff, McCorkel Construction Services, Inc. respectfully requests this Honorable Court enter judgment in its favor and against Defendant, M. Webster Construction, Inc. COUNT III -Contractor Subcontractor Payment Act 75. Paragraph seventy-five (75) is an incorporation by reference paragraph to which no response is required. 76. This paragraph contains a legal conclusion to which no response is required. 77. This paragraph contains a legal conclusion to which no response is required. 78. This paragraph contains a legal conclusion to which no response is required. 6 79. This paragraph contains a legal conclusion to which no response is required. By way of further answer, Webster breached its duties under the contract attached to the complaint as Exhibit A, As a result, McCorkel Construction Services, Inc. suffered damages in the principal amount of $57,056.30 ($80,506.30 repair cost less the contract amount of $23,450.00). 80. This paragraph contains a legal conclusion to which no response is required. 81. Admitted in part, denied in part. It is admitted that Webster poured the first floor concrete slab on December 29, 2009 and that it poured the second floor concrete slab on March 16, 2010. It is denied that the work performed by Webster was in compliance with the contract or any recognized industry standards. By way of further answer, the cost of repairing Webster's work far exceeded the value of the contract. 82. The contract is a written document which speaks for itself. By way of further answer, the contract between the parties required that the work comply with the contract drawings and industry standards. 83. This paragraph contains a legal conclusion to which no response is required. 84. Denied. Webster never invoiced McCorkel Construction Services, Inc.. By way of further answer, it was McCorkel Construction Services, Inc. who by letter dated May 6, 2010 invoiced Webster for the costs it had incurred. 85. Admitted with clarification. It admitted that McCorkel Construction Services, Inc. did not pay Webster .Webster was not paid because it failed to install the concrete slabs pursuant to the contract and industry standards. 7 86. This paragraph contains a legal conclusion to which no response is required. By way of further answer, Joseph B. McCorkel of McCorkel Construction Services, Inc. notified Mike Webster of M. Webster Construction, Inc. that the first floor slab was deficient the same day Shaun Keisling from Pennsy Supply came to the Project site and tested the slab and indicated that it failed the hardness test. Further, Mike Webster of M. Webster Construction, Inc. admitted that the concrete work was deficient as to both slabs during a meeting with Joseph B. McCorkel of McCorkel Construction Services, Inc. and representatives of the owner. Mike Webster refused to repair the deficient work, stated "you cannot get blood from a turnip" and abandoned the Project. 8?. This paragraph contains a legal conclusion to which no response is required. WHEREFORE, Plaintiff, McCorkel Construction Services, Inc. respectfully requests this Honorable Court enter judgment in its favor and against Defendant, M. Webster Construction, Inc. NEW MATTER 88. Webster's Counterclaims fail to state causes of action upon which relief can be granted. 89. Webster's Counterclaims are barred by the doctrines of waiver and estoppel, release, failure to mitigate damages, laches, accord and satisfaction, justification and failure to give notice. 90. Webster's Counterclaim for unjust enrichment is barred because both Webster and McCorkel Construction Services, Inc. admit to the existence of a contract between Webster and McCorkel Construction Services, Inc.. WHEREFORE, Plaintiff, McCorkel Construction Services, Inc. respectfully requests this Honorable Court enter judgment in its favor and against Defendant, M. Webster Construction, Inc. Respectfully submitted, REAGER & ADLER, P.C. Date: August t'd , 2010 Theodore A. Adler, Esquire Attorney I.D. No. 16267 Wayne S. Martin, Esquire Attorney I.D. No. 208078 2331 Market Street Camp Hill, PA 1 70 1 1-4642 (717) 763-1383 Attorneys for Plaintiff 9 ., VERIFICATION I,loseph B. McCorkel, hereby verify that I am the President of McCorkel Construction Services, Inc., and, as such, I am authorized to verify the averments of the foregoing Complaint are true and correct to my personal. knowledge, information and belief. I .understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §49Q4, relating to unsworn falsification to authorities. .fit Date ~~~e ~~OI 4 By: J eph B. McCorkel, President CERTIFICATE OF SERVICE I, Wayne S. Martin, Esquire, hereby certify that I have caused a true and correct copy of the foregoing Reply to Defendant's New Matter and Answer to Counterclaim with New Matter to be served upon the following counsel of record via First Class Mail, postage prepaid, addressed as follows: Darrell C. Dethlefs, Esquire Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 Date: Au ust l0 2010 ~/~~~~~ II _, Wayne S. Martin, Esquire 10 4 DETHLEFS-PYKOSH LAW GROUP, LLC BY: DARRELL C. DETHLEFS, ESQUIRE Attorney I.D. No. 58805 ddethlefs aol.corti 2132 Market Street Camp Hill, PA 1701-1 Telephone: (717) 975-9446 Facsimile: (717) 975-2309 McCORKEL CONSTRUCTION SERVICES, INC. Plaintiff V. I M. WEBSTER CONSTRUCTION, INC And MICHAEL J. WEBSTER Defendants AUCT 19 AM 11 a6 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 10-4348-CIVIL 2010 CIVIL ACTION -LAW REPLY TO NEW MATTER AND NOW, comes the Defendants, M. Webster Construction, Inc. and Michael J. Webster, by and through their, attorneys, Dethlefs-Pykosh Law Group, LLC, and files the following Reply to New Matter: 88. This Paragraph contains legal conclusion to which no response is required. 89. This Paragraph contains legal conclusion to which no response is required. 90. This Paragraph contains legal conclusion to which no response is required. WHEREFORE, Defendants, M. Webster Construction, Inc. and Michael J. Webster, respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, McCorkel Construction Services, Inc. Re/pe fully Submitted: DETHL S-P GROUP, LLC By: arrell C. Dethlefs, Esquire Attorney for Defendants VERIFICATION I, Michael J. Webster, hereby verify that I am the President of M. Webster Construction, Inc. and, as such, I am authorized to verify that the statements in the foregoing Reply to New Matter are true and correct to my personal knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. to vzv ?'?00 Date: Michael J. ebster, President M. Webster Constructi n, Inc. Michael J. Webster, Individually DETHLEFS-PYKOS14 LAW GROUP, LLC BY: DARRELL C. DETHLEFS, ESQUIRE Attorney I.D. No. 58805 ddethlefs a@aol.com 2132 Market Street Camp Hill, PA 17011 Telephone: (717) 975-9446 Facsimile: (717) 975-2309 McCORKEL CONSTRUCTION SERVICES, INC. Plaintiff V. M. WEBSTER CONSTRUCTION, INC. And MICHAEL J. WEBSTER Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 10-4348-CIVIL 2010 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Darrell Dethlefs, Esquire, hereby certify that I have caused a true and correct copy of the Plaintiff's Reply to Defendant's New Matter to the Counterclaim to be served upon the following counsel of record via United States Postal Service, First Class Mail, postage prepaid, addressed as follows: Wayne S. Martin:. Esquire REAGER & ADLEF, P.C. 2331 Market Street Camp Hill, PA 17011 Dated: BY: q f!k Respe fu y Submitt . Darr .Dethlefs Es uire MCCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS SERVICES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : No.: 10-4348 - CIVIL V. r) ( p -n M. WEBSTER CONSTRUCTION,: CIVIL ACTION - LAW ?rn =-.n WC., and MICHAEL J. - o EBSTER, rn , Defendants CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA = -- r f PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, M. Webster Construction, Inc. and Michael J. Webster, Defendants, certifies that: 1. A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed to delivered to each party at least twenty days prior the date on which the subpoena is sought to be service, 2. A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, 3. No objection to the subpoena has been received, and 4. The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Respec Ily Submitted, Date: Darr . Dethlefs, Esquire I. D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants Darrell C. Dethlefs, Esquire ID 4 58805 Dethlefs-Pykosh Law Croup, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 DDethlefs_u?aol.com Attorney for Defendants MCCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS SERVICES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. No.: 104348 - CIVIL M. WEBSTER CONSTRUCTION,: CIVIL ACTION - LAW INC., and MICHAEL J. WEBSTER, Defendants NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO PA. R.C.P. 4009.21 Defendants, M. Webster Construction, Inc. and Michael J. Webster intend to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned and objection to the subpoena. If no objection is made the subpoena may be service. Date: Darrell ethlefs, Esquire I. D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants MCCORKEL CONSTRUCTION SERVICES, INC., Plaintiff V. M. WEBSTER CONSTRUCTION,: INC., and MICHAEL J. WEBSTER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 10-4348 - CIVIL CIVIL ACTION - LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO PA. R.C.P. 4009.22 To: Sovran Self Storage, Inc. Attn: Peter Billiod 6467 Main Street Buffalo, NY 14221 Within twenty (20) days after service of this subpoena, you are ordered by the Court to produce the following documents or things: 1. All contracts with any change orders or addenda between Sovran Self Storage, Inc., any predecessors, successors, agents, employees, joint ventures, partnerships, etc. and McCorkel Construction Services, Inc. 2. Copies of all checks paid to McCorkel Construction Services, Inc. 3. Copies of all checks paid to any other parties for goods supplied or services performed at 6358 Bay Shore Drive, Mechanicsburg, Pennsylvania. 4. Copies of any letters, emails, correspondence, voice messages or other communications or documents regardless of their medium to McCorkel Construction Services, Inc. 5. Copies of any letters, emails, correspondence, voice messages or other communications or documents regardless of their medium from McCorkel Construction Services, Inc. 6. Copies of all invoices related to 6358 Bay Shore Drive, Mechanicsburg, Pennsylvania. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed below. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with hit. This subpoena was issued at the request of the following person. Darrell C. Dethlefs, Esquire I. D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants Date: Seal of the Court BY THE COURT: Prothonotary, Civil Division Deputy MCCORKEL CONSTRUCTION SERVICES, INC., Plaintiff V. M. WEBSTER CONSTRUCTION,: INC., and MICHAEL J. WEBSTER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 10.4348 - CIVIL CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Notice of Intent to Serve a Subpoena pursuant to Pa. R.C.P. 4009.21, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: McCorkel Construction Services, Inc. clo Wayne S. Martin, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, Pennsylvania 17011 Attorney for Plaintiff Respec liy Submitted, Date: .r L\1 Darrell ethlefs, Esquire I.D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants MCCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS SERVICES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No.: 10-4348 - CIVIL V. M. WEBSTER CONSTRUCTION,: CIVIL ACTION - LAW INC., and MICHAEL J. WEBSTER, Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing depositing the same within the custody of the United postage prepaid, addressed as follows: McCorkel Construction Services, Inc. c/o Wayne S. Martin, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, Pennsylvania 17011 Date Attorney for Plaintiff Certificate, was hereby served by States Postal Service, First Class, Respectf II ubmitted, Darrell . Dethlefs, Esquire I. D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants MCCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS SERVICES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No.: 10-4348 - CIVIL V. <2 V, 't M. WEBSTER CONSTRUCTION,: CIVIL ACTION - LAW INC., and MICHAEL J. ter- WEBSTER, ar% --4 C:) Defendants -? 1 V _ ?~ ! CERTIFICATE ` -- ` PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, M. Webster Construction, Inc. and Michael J. Webster, Defendants, certifies that: 1. A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed to delivered to each party at least twenty days prior the date on which the subpoena is sought to be service, 2. A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, 3. No objection to the subpoena has been received, and 4. The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. ,', Respect Submitted, Date: ? (' C - I DarrDethlefs, Esquire I. D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants Darrell C. Dethlefs, Esquire ID it 58805 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 DDethiefsti aaol.com Attorney for Defendants MCCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS SERVICES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No.: 10-4348 - CIVIL V. . M. WEBSTER CONSTRUCTION,: CIVIL ACTION - LAW INC., and MICHAEL J. WEBSTER, . Defendants NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO PA. R.C.P. 4009.21 Defendants, M. Webster Construction, Inc. and Michael J. Webster intend to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned and objection to the subpoena. If no objection is made the s oena may be service. Date: arre D Dethlefs, Esquire I. D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants MCCORKEL CONSTRUCTION SERVICES, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 10-4348 - CIVIL M. WEBSTER CONSTRUCTION,: CIVIL ACTION - LAVA INC., and MICHAEL J. WEBSTER, Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO PA. R.C.P. 4009.22 To: Pennsy Supply, Inc. 1001 Paxton Street Harrisburg, PA 17105 Within twenty (20) days after service of this subpoena, you are ordered by the Court to produce the following documents or things: 1. All contracts with any change orders or addenda between Miller Building Syetsms, LLC, any predecessors, successors, agents, employees, joint ventures, partnerships, etc. and McCorkel Construction Services, Inc or Sovran Self Storage, Inc. related to 6358 Bay Shore Drive, Mechanicsburg, Pennsylvania. 2. Copies of all batch tickets for cement orders of December 29, 2009 and March 16, 2010 from McCorkel Construction Services, Inc or Sovran Self Storage, Inc. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed below. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with hit. This subpoena was issued at the request of the following person. Darrell C. Dethlefs, Esquire 1. D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants Date: Seal of the Court BY THE COURT: Prothonotary, Civil Division Deputy MCCORKEL CONSTRUCTION SERVICES, INC., Plaintiff V. M. WEBSTER CONSTRUCTION,: INC., and MICHAEL J. WEBSTER, , Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 10-4348 - CIVIL CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Notice of Intent to Serve a Subpoena pursuant to Pa. R.C.P. 4009.21, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: McCorkel Construction Services, Inc. c/o Wayne S. Martin, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, Pennsylvania 17011 Attorney for Plaintiff Date: Rest11 Submitted, Darre . Dethlefs, Esquire I. D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants MCCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS SERVICES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No.: 10-4348 - CIVIL . V. -° W M. WEBSTER CONSTRUCTION,: CIVIL ACTION - LAW zm mar- INC., and MICHAEL J. r WEBSTER o Defendants =-n p CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, M. Webster Construction, Inc. and Michael J. Webster, Defendants, certifies that: 1. A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed to delivered to each party at least twenty days prior the date on which the subpoena is sought to be service, 2. A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, 3. No objection to the subpoena has been received, and 4. The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Respectf I Submitted, Date: Darr ethlefs, Esquire I. D. 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants Darrell C. Dethlefs, Esquire ID # 58805 Dethlefs-Pykosh Law Croup, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Attorney for Defendants MCCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS SERVICES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. M. WEBSTER CONSTRUCTION,: INC., and MICHAEL J. WEBSTER, , Defendants No.: 10-4348 - CIVIL CIVIL ACTION - LAW NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO PA. R.C.P. 4009.21 Defendants, M. Webster Construction, Inc. and Michael J. Webster intend to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned and objection to the subpoena. If no objection is made the s bpoena may be service. 1 Date: ! Darrell . Dethlefs, Esquire I. D. # 58805 2132 Market Street Camp Hill, Pennsylvania '17011 Attorney for Defendants MCCORKEL CONSTRUCTION SERVICES, INC., Plaintiff V. . M. WEBSTER CONSTRUCTION,: INC., and MICHAEL J. WEBSTER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 10-4348 - CIVIL CIVIL ACTION - LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO PA. R.C.P. 4009.22 To: Miller Building Systems, LLC 1408 Bethlehem Pike Flourtown, Pennsylvania 19031 Within twenty (20) days after service of this subpoena, you are ordered by the Court to produce the following documents or things: 1. All contracts with any change orders or addenda between Miller Building Syetsms, LLC, any predecessors, successors, agents, employees, joint ventures, partnerships, etc, and McCorkel Construction Services, Inc or Sovran Self Storage, Inc.. 2. Copies of all checks paid to McCorkel Construction Services, Inc. 3. Copies of all checks paid to any other parties for goods supplied or services performed at 6358 Bay Shore Drive, Mechanicsburg, Pennsylvania. 4. Copies of any letters, emails, correspondence, voice messages or other communications or documents regardless of their medium to McCorkel Construction Services, Inc. 5. Copies of any letters, emails, correspondence, voice messages or other communications or documents regardless of their medium from McCorkel Construction Services, Inc. 6. Copies of all invoices related to 6358 Bay Shore Drive, Mechanicsburg, Pennsylvania. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed below. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with hit. This subpoena was issued at the request of the following person. Darrell C. Dethlefs, Esquire I.D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants BY THE COURT: Prothonotary, Civil Division Date: Seal of the Court Deputy MCCORKEL CONSTRUCTION SERVICES, INC., Plaintiff V. M. WEBSTER CONSTRUCTION,: INC., and MICHAEL J. WEBSTER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 10-4348 -CIVIL CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Notice of Intent to Serve a Subpoena pursuant to Pa. R.C.P. 4009.21, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: McCorkel Construction Services, Inc. c!o Wayne S. Martin, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, Pennsylvania 17011 Attorney for Plaintiff Respectf Il Submitted, Dater t -? Darrel ethlefs, Esquire I.D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants MCCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS SERVICES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No.: 10-4348 - CIVIL V. M. WEBSTER CONSTRUCTION,: CIVIL ACTION - LAW INC., and MICHAEL J. WEBSTER, Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Certificate, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: McCorkel Construction Services, Inc. c/o Wayne S. Martin, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, Pennsylvania 17011 Attorney for Plaintiff Date: Darrell'C. Dethlefs, Esquire I. D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants -,-„ .. i,. ~~„~ ~ fi~~;,`r~ !q ~,~ ~ ~.. ..~ r ~ s f ~_ L. ;'1 ~ 7 _.~<~.~i ~ ~,. ~ ~. READER &ADLER, P.C. THEODORE A. ADLER, ESQUIRE Attorney I.D. No. 16267 TAdler@ReagerAdlerPC.com WAYNE; S. MARTIN, ESQUIRE Attorney LD. No. 208078 WMartin cr,ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Counsel to Plaintiff MCCORI~EL CONSTRUCTION IN THE, COURT OF COMMON PLEAS SERVICES, INC. :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No.: 10-4348-CIVIL-2010 M. WEBSTER CONSTRUCTION, INC. and MICI~~IAEL J. WEBSTER Defendants :CIVIL ACTION - LA W PROPOSED FINDINGS OF FACTS AND CONCLUSIONS OF LAW OF MCCORKEL CONSTRUCTION SERVICES, INC. L PROPOSED FINDINGS OF FACT A. The Parties 1. Plaintiff, McCorkel Construction Services, Inc. i,hereinafter ``1~1:c('orkel") is a Pennsylvania corporation, with its principal office located at 1405 .7immerman Road, Carlisle, Cumberland County, Pennsylvania, 17015. Corraplaint and Answer at ¶1. 2. Defendant, M. Webster Construction Inc. (hereinafter "Webster Construction") is a Pennsylvania corporation with a registered office address of 805 Pershing Street, Lebanon, Pennsylvania 17042. Complaint and .Answer at ¶2. 3. Defendant, Michael J. Webster is an adult individual with an address of 805 Pershing Street, Lebanon, Pennsylvania 17042. N. T. 116, LN 25; Complaint and Answer at ¶3. >g. The Cc-ntract 4. In 2008, McCorkel entered into a, contract with Sovran Self Storage, Inc. (hereinafter "Sovran"'), whereby McCorkel agreed to construct a climate controlled., two-story self storage unit on the Property (hereinafter "the Project"). Joint Ex~~iibit No. 7. 5. The contract between McCorkel and Sovran incorporated contract drawings. Joint Exhibit No. 7. 6. Webster Construction entered into a subcontract with Miller Building Systems to erect the steel on the Project. N.T. 122, LN 1. 7. While on the Project, Michael J. Webster approached a McCorkel representative and gawe him a bid to do the concrete work on the Project. N.T. 122, L,~~ 11. 8. On November 18, 2009, Webster Construction :faxed McCorkel a bid to do the concrete work on the Project. N. T. 18, LN 4; Joint E,rhibit No. 6. 9. The bid submitted by Webster Construction was for the labor to place and finish the concrete work on the Project in a workmanlike manner. N. T. 18, LN 23. 10. The bid submitted by Webster Construction excluded the materials which were to be provided by McCorkel. N.7: I8, LN 25; Joint Exhibit No. 6. 2 11. The bid submitted by Webster Construction offered to provide the labor to place and finish the concrete for the first floor slab for ~$ 11,000.00..E T. 19, L_N ?; Joint Exhibit No. 6. 12. The bid submitted by Webster Construction offered to provide the labor to place and finish the concrete for the second floor slab fir $12,450.00. N. T. 19, LN 13 ~ Joint Exhibit No. 6. 13. The bid submitted by Webster Construction offered to provide the pump necessary to install the concrete. Joint Exhibit No. 6. 14. McCorkel verbally accepted Webster Construction's November 18, 2009 offer. Complaint and Answer at ¶14. l 5. Michael J. Webster used the contract drawings to prepare a bid for the concrete work. N.T. 122, LN 19. 16. The contract drawings reference t:he LB.C. (2006). N. T. 123, LN 16; Joint Exhibit N~. 8. C. Liability of Webster Construction -Breach of Contract 17. Michael J. Webster represented to McCorkel that Webster Construction had the expertise to pour and finish concrete. N. T. 119, LN 25. 18. Michael J. Webster has no certification with respect to the pouring or setting of concrete. N T. 119, LN 7. 19. No employee of Webster Construction has any certification ~%ith respect to the pouring or setting of concrete. 1~:'l. 119, LN 11. 20. Webster Construction does not provide any specific training t4} its employees with respect to the pouring and setting of concrete. N. T. 11.9, LN 14. 3 21. When Michael J. Webster prepared its bid he was not familaar with the LB. C. (2006). N. T. 124, LN 3. 22. The LB.C. (2006) incorporates the ACI standards for cold weather concreting. ,'V. T. 12~, LN 16, Joint Exhibit Nos. 9 and 10. 23. When Webster Construction performed the work on the Project, Michael J. Webster was not familiar with the ACI standards for cold weather concreting. 1V T. 126, LN 1 S. 24. When Webster Construction performed the work on the Project, Michael J. Webster had not reviewed the ACI standards for cold weather concreting. N. T. 126, LN 12. 25. Michael J. Webster had never seen the ACI standards for cold weather concreting until the clay of the trial. N.T. 125, LN 14. 26. McCorkel Construction ordered the delivery of the concrete on the dates and times selected by Michael J. Webster. N. T. 82, LN .15. 27. Michael J. Webster could have cancelled the pour on December 29, 2012, as he had done previously, but he chose not to cancel the pour. N T. ~~4, LN 21; N. ;~' 137, LN 20. 28. When Webster Construction poured the concrete, parts of the sub-grade were frozen. N. T. 12!x, LN 12. 29. On December 29, 2009, Webster Construction poured the concrete for the first floor slab on grade. N.T. 130, LN 19. 30. When Webster Construction poured the concrete for the first floor slab on grade the temperature was 16 degrees in the morning, with 21 mile per hour winds gusting to 45 miles per hour. N. T. 130, LN 22. 4 31. Portions of the first floor slab froze and portions of the first floor slab flaked off. N.T. 131, LN ?. 32. Approximately ninety percent of the first floor slab was defective. N. T. 8?, I1~' 18. 33. Employees of Webster Construction walked on the wet concrete of the first floor slab leaving behind footprints. N. T. 131, LN 12. 34. Webster Construction waited until December 30, 2009 to attempt to finish the first floor slab, but by that time the concrete had already set and could not be finished correctly. N.T. 131, LN 17. 35. Michael J. Webster admitted that the first floor concrete was unacceptable, N. T. 131, 1.N 22; N. 2~ 134, LN 19. 36. The concrete supplier, Pennsy Supply, sent a quality control :manager to the site to on January 5, 2010 to inspect and test the first: floor concrete slab. N. T. 10?, LN 4. 37. Pennsy Supply's quality control manager, a certified concrete plant technician, a certified. field testing technician and a certified strength testing technician, determined that there was nothing wrong with the mix specified for the Project. N. 1" 116, LN 6. 38. The concrete mix that was specified for the Project was suitable for cold weather applications. N. T. 110, LN i. 39. Based upon the assurances of Michael J. Webster that he would correct the defective work on the first floor slab and that Webster Construction could properly install the second floor slab McCorkel permitted Webster Construction to pour the second floo~° slab in March. 201 ~_). N. T. 76, LN 2. 5 40. When Webster Construction installed the second floor slab the weather conditions were fine and the temperature was above freezing. N. T. 133, 6. Howe~~-rer, the finish of the second floor slab had cracks and ridges caused by the trowel rnachines operated by Webster Construction. N. T. 133, I,N 17. 41. The owner of the Project refused to accept the concrete work: performed by Webster Construction. N. T. 90, LN 16. 42. When McCorkel advised Michael J. Webster that the concrete had been rejected by the owner, Michael J. Webster refused to repair or replace the defective work. Instead, he advised McCorkel to:"Go ahead and sue me, you can't get blood out of a turnip." N. 7 : 91, ~! ,ti' 6; N T. 1' 35, LN 4. 43. Webster left the Project site and never returned to do any concrete work. N: T. ~1, 1:N 13. 44. After Webster Construction abandoned the Project, McCorkel attempted to mitigate its damages by contacting the concrete supplier and other concrete companies on how to correct the defective concrete work without tearing down the building. N.T. 91, 1.1'V ?1. D. Damages 45. Michael J. Webster admits that McCorkel had to repair the slabs after Webster Construction abandoned the Project so that the work would be acceptable to the owner. N. T. 138, ~,~ 16. 46. McCorkel has incurred the following costs to repair the Webster Construction's work: (a) $57,110.00 to C.A. Prep Rite to ground down portions of the slabs, resurface everything and stain the concrete to blend the repairs. N.T. 35, LN 5; Joint Exhibit No. 15. 6 (b) $14,157.39 for employee labor to repair the concrete. ~~~LT. 40, LN 2; Joint Exhibit No. 15. (c) $5,098.99 for rental of equipment used for concrete repair. N.T. 41, LN 3; Joint Exhibit No. 15. (d) $1,340.00 for cleanup and supervision. N.T. 41, LN 2~1~i; Joint Exhibit No. 15. (e) $3,804.00 for the supply and installation of a carpet in tlxe second floor hallway to mask the defects in the concrete floor. '~~: T. 42, LN 7; Plaintiff ~' .Exhibit No. 1. 47. McCorkel Construction also incurred the following additional costs as a result of Webster Construction's failure to perform: (a) $2,800.00 to ThyssenKrupp, the elevator subcontractor, for having to store the elevator equipment while the defective concrete was corrected. N. T. 37, LN 1 S; .IGint Exhibit No. 15, Plaintifj'~~'s Exhibit No. 2. 48. McCorkel suffered total damages in the principal amount of $60,860.38 (total paid out of $84,310.381ess the unpaid Webster contract amount: of $23,450.00}. Joint Exhibit N~. 1 S. E. Liability of Michael J. Webster as Guarantor or Piercing the Corporate Veil 49, Michael J. Webster is the Owner crf Webster Construction. N T 118, LN 1 ~. 50. Michael J. Webster is the sole shareholder, director and officer of Webster Construction. N.T. 139, LN3. 51. Michael J. Webster is the Chief Executive Officer of Webster Construction. Complaint and Answer at ¶4. 52. Michael J. Webster is the President: of Webster Construction. +~'omplaint and Ansn~er at ¶5. 7 53. Michael J. Webster is the Vice President of Webster Construction. Complaint and Answer at ¶6. _54. Michael J. Webster is the Treasurer of Webster Construction. Complaint and Answer at ¶7. 5~. Michael J. W"ebster is the Secretary of Webster Construction. (complaint and Answer at ¶8. 56. Webster Construction has never :held a corporate meeting, r~r'. T. 139, LN 7. 57. Webster Construction has no corporate records other than the three page Articles of Incorporation filed with the Department of State. N. T. 139, LN I5. 58. Webster Construction has no cor)~orate minutes, no corporation bylaws and no corporate books of any kind. N. T. 139, LN 20. 59. According to Michael J. Webster he loaned Webster Construction money, but there are no documents memorializing those loans and the loans clo not appear in Webster Construction's tax returns or financial statements. N. T. 140, LN S; N. T. 141, LN 13. 60. According to Webster Construction's tax returns, Webster Construction loaned money to Michael J. Webster. N. T. 141, LN 2; Joint Exhibit .~~o. 21. 61. According to Michael J. Webster'. testimony and Webster Construction's financial records it had seven employees in 2009 when it contracted with McCorkel to do the concrete work and with Miller Building Systems to erect the steel on the Project, yet it paid only $400.00 in wages that year. N.T. 144, LN 7; Joint Exhibit No. 19. 62. Despite Webster Construction's financial records showing $4(10.00 in payroll for 2009, Webster Construction's W-2 forms for 2009 show it paid $77,558. ] 7 in wages for 2009. 1Defendant's Exhibit 1. 8 63. Webster Construction's headquarters is in a building owned by Michael J. Webster and his wi:Ee. N. T. 146, LN 13. However, there is no written lease. N. T. 146, LN 19. Michael ,f . Webster on occasion takes rent. N. T. 148, L;N 9; Joint E~chibit No. 22. 64. As of June 2, 2010 Webster Construction's lone bank account had an account balance of -$16.03. Complaint and Answer at ¶48. 65. According to the balance sheets included with Webster Constrcuction's 2008 and 2009 tax returns, its liabilities are always exactly equal to its total assets. Joint Exhibit Nos. 20 ~xnd 21. II. PROPOSED CONCLUSIONS OF LAW 1. The bid telefaxed by Webster Construction to McCorkel on :'vovember 18, 2009 expressed a willingness to enter into a contract to perform the concrete work on the Project; therefore, it was an offer. 2. Webster Construction's offer was to perform the concrete work on the Project for $28,450; however, McCorkel accepted the ol:fer believing the price offer was $23,450. Since Webster Construction knew of McCorkel interpretation and failed to protest, McCorkel's interpretation as to the price term controls. 3. Webster Construction's offer was to provide only the skilled ,labor and equipment necessary to install and finish the concrete work on the Project in accordance with industry standards and the Project drawings and specifications that formed the basis of the offer. 4. McCorkel accepted Webster Construction's offer thereby creating a binding contract between McCorkel and Webster Construction. 5. Compliance with the laws of the Commonwealtih of Pennsylvania, particularly the Uniform Construction Code, is an implied term of the contract between the parties. 9 6. At the time of the Project, the 2006 International Building Code was incorporated into the Uniform Construction Code pursuant to 34 Pa. Code §403.21. 7. Webster Construction breached the contract by failing to aa:mplete the concrete work on the Project in accordance with the project drawings, specifications and industry standards. 8. The contract between McCorkel and Webster Construction required the work to be performed to the satisfaction of the owner. 9. Webster Construction breached t:he contract by failing to complete the concrete work on the Project to the satisfaction of the owner 10. Webster Construction's breaches were material and went to the essence of the contract. 11. McCorkel gave Webster Construction an opportunity to cure the defective concrete work, but Webster Construction eventually gave up and abandoned the Project without correcting the defective concrete work. 12. Once Webster Construction communicated its refusal to correct the defective concrete work, McCorkel took reasonable actions to reduce or eliminate the damages incurred by Webster Construction's breach of the contract. 13. As a result of Webster Construction's breach of contract, McCorkel suffered damages in the principal amount of $60,860.38 I;total paid out of $84,310.38 less the unpaid Webster contract amount of $23,450.00), which were a direct and foreseeable result of the breach.. 10 14. McCorkel is entitled to recover from Webster Construction damages in the principal amount of $60,860.38 (total paid out of $84,310.38 less the contract amchunt of $23,450.00) to compensate McCorkel for its injuries. 15. Since the sum of Webster Construction's liabilities are equal to the value of all its assets, Webster Construction is undercapitalized and insolvent. 16. Webster Construction failed to observe corporate formalities; it never holds corporate meetings, and it maintains no corporate documents, no corporate n~ieeting minutes, no corporate bylaws and no corporate books of any kind. 17. Michael J. Webster, Webster Construction's sole shareholder, has the ability to withdraw funds from Webster Construction at any time upon demand and. without documentation. 18. Based upon the trial testimony and the financial documents offered at trial there is no formal or consistent manner in which Michael J. Webster :receives payment from Webster Construction showing an intermingling of personal and corporate affairs. 19. Webster Construction utilizes a building owned by Michael .J Webster and his wife with no ].ease agreement between the parties. Rent is paid in an informal and inconsistent manner showing an intermingling of personal and corporate affairs and the sharing of common space. 20. The undercapitalization of Webster Construction, the intermingling of affairs and. the failure to adhere to corporate formalities impacted Webster Construction's ability to correct the defective work and impairs its ability to pay McCorkel the amount it claims in this action and under these circumstances, piercing the corporate veil of Webster Construction is necessary t:o avoid injustice. Il Respectfully submitted., REAGER. &/ADLER, P.C. / y ~~ .~'' Date: October 24 2012 ~ ~~ _ Theodo A. Adler, Esquire Attorney LD. No. 16267 Wayne S. Martin, Esquire Attorney LD. No. 208078 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7?'~66 Attorneys for Plaintiff 12 CERTIFICATE OF SERVICE I, Alana L. Souders, Paralegal to Wayne S. Martin, Esquire, hereby certify that I have this date caused a true and correct copy of the foregoing document to be served upon the following counsel o:f record via First Class U.S. Mail, postage prepaid, addressed as follows: Darrell C. Dethlefs, Esquire Dethlefs-Pykosh Law Group, LLC 2132 .Market Street Camp Hill, PA 17011 '~ Dated: October 24, %;012 ~-,~ ~ ~, PENNSYLV, N1P, Darrell C. Dethlefs, Esquire ID # 58805 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill. Pennsylvania 17011 Telephone - (717) 975-9446 DDethlefs,'a,aol.com Attorney for Defendants MCCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS SERVICES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No.: 10-4348 - CIVIL V. M. WEBSTER CONSTRUCTION,: CIVIL ACTION - LAW INC., and MICHAEL J. WEBSTER, : Defendants DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF AND NOW comes Defendants, M. Webster Construction, Inc. and Michael J. Webster, by and through their attorneys the Dethlefs-Pykosh Law Group, LLC, by Darrell C. Dethlefs, Esquire who responds to Plaintiff's Motion for Post Trial Relief pursuant to Pa. R.C.P. 227.1 as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied as stated. The court found and the testimony of Plaintiff's principal, Joseph McCorkel established that M. Webster Construction, Inc. (hereinafter "Webster Construction") was McCorkel's subcontractor for the contract work. (In Re: Non-Jury Trial, April 2, 2012 - April 3, 2012, J. Ebert, pg. 17 (hereinafter N.T.)). After the concrete work was completed, Webster Construction was hired as a subcontractor of Miller Building Systems to erect steel on the Project. Webster Construction was in the process of erecting steel when they were thrown off of the job by Plaintiff. (N.T. 49). 6. Admitted. 7. Admitted in Part, Denied in Part. It is admitted that Webster Construction submitted a bid of $28,450.00 for labor only and a concrete pump rental. It is denied however that this was the only bid given to Plaintiffs. By way of further response, Webster Construction provided a bid for the entire concrete project of $79,900.00 (N.T. 95). 8. Denied. It is specifically denied that the bid submitted by Webster offered to place and finish the concrete for the first floor slab for $11,000.00. To the contrary, the bid was for $16,000.00 as Your Honor correctly found. (January 9, 2013 Opinion ("Opinion") at 3, fn. 17). 9. Admitted. 10.Admitted. 11. Denied. It is specifically denied that Webster Construction's work was defective. Webster Construction was hired to provide labor only relative to two concrete pours. It is undisputed that Webster Construction provided said labor. Further, during the entire project McCorkel Construction retained command supervision over Webster Construction and its employees. (Opinion at 4). 12. Denied as stated. Defendants' incorporate their response to paragraph 11, supra, as if set forth fully herein. By way of further response, although Defendants agreed to work with Plaintiff to repair the defective concrete, this is in no way an admission that it was Webster Construction's defective labor which caused the concrete work to be defective. 13. Admitted in Part, Denied in Part. It is admitted that Webster Construction's efforts to repair the defective concrete were not satisfactory to Plaintiff however it is denied that Webster testified at any point in this matter that advised McCorkel to "Go ahead and sue me, you can't get blood out of a turnip." 14. Denied as stated. It is specifically denied that McCorkel Construction corrected the defective concrete. Instead, as McCorkel testified, they were unable to correct the defective concrete and hired C.A. Prep Rite to make the repairs. (N.T. 34-35; 92-93). 15. Admitted. Motion to Modify or Change the Order 16. Admitted. 17. Denied. Defendants are without information sufficient so as to form a belief as to the veracity of this allegation. A. Whether the failure to determine that the Pennsylvania Construction Code Act applied to the construction contract in this case was an Error. 3 18. Admitted. 19.The averments contained in paragraph nineteen (19) of Plaintiffs Post Trial Motion are conclusions of law to which no response is required. 20. The averments contained in paragraph twenty (20) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 21. The averments contained in paragraph twenty-one (21) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 22. The averments contained in paragraph twenty-two (22) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. By way of further response, the contract between McCorkel Construction and Webster Construction was for labor only. The fact that Webster wasn't aware of the standards speaks volumes to the point that neither placed much weight in the Code or the Standards prior to the commencement of this litigation. As McCorkel was the party in control of Webster, they had the affirmative duty to ensure that Webster knew of and followed any standard that they deemed important or necessary. McCorkel never bought the Code or the Standards to the attention of Webster. 23. The averments contained in paragraph twenty-three (23) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. By way of further response, Defendants incorporate, as if fully set forth herein, their response to paragraph twenty-two (22) supra. B. Whether the Court's determination that the Project Drawings were not part of the Contract is not supported by the Record and was an Error. 4 24. Admitted. 25. The averments contained in paragraph twenty-five (25) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. By way of further response, Griffith does stand for the well-settled proposition that all essential terms must be included in contract in order for those terms to be binding upon the contracting parties. In this case, McCorkel voluntarily chose to accept a faxed "bid" on a generic "service invoice" form and did not mandate that Webster Construction enter into a formal contract with McCorkel. This decision was McCorkel's and McCorkel's alone. 26. Denied. It is specifically denied that Webster Construction was to install the concrete in accordance with the drawings. The record is devoid of any reference to support the fact that McCorkel ever brought this to Webster's attention prior to the instant lawsuit. 27. Denied. The averments contained in paragraph twenty-seven (27) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. By way of further response, Sovran was the owner and McCorkel was the general contractor on the project. Even if this statement of the law is applicable McCorkel failed to ensure that Webster Construction was made aware of all of the essential terms of the contract. Further, McCorkel proceeded at their own risk when they voluntarily chose to accept a faxed "bid" on a generic "service invoice" form and did not mandate that Webster Construction enter into a formal contract with McCorkel. This decision was McCorkel's and McCorkel's alone. 5 28. Denied. The averments contained in paragraph twenty-eight (28) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. Defendants' incorporate as if fully set forth herein their responses to paragraph twenty-seven (27) supra. By way of further response, the record is devoid of any testimony from Defendants that Defendants based their bid upon the notations on the drawings, but did testify that they placed their bid for labor only on the dimensions of the slabs. 29. The averments contained in paragraph twenty-nine (29) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 30. Denied The averments contained in paragraph thirty (30) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. Defendants' incorporate as if fully set forth herein their responses to paragraph twenty-seven (27) and twenty-eight (28) supra. 31.Denied The averments contained in paragraph thirty-one (31) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 32. Denied The averments contained in paragraph thirty-two (32) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. C. Whether the failure to rule ambiguous terms of a contract against the drafter was an error. 33. Denied. The court found that the contract was a mixed written and oral contract. (Opinion at 9). 34. Denied. It is specifically denied that the Court found that the phrase labor only used in the contract was ambiguous. To the contrary the court held, "the contract stated that Webster would provide "labor only" for the concrete work for 6 both the first and second floors. This Court determines that the term "labor only" as used in this contract meant exactly that; that Webster would provide only the labor or manpower necessary to pour and finish the two contact slabs. This work would be performed under the direct supervision of McCorkel." (Opinion at 9-10). As the court choose the plain meaning of "labor only" the court found the term to be clear and unambiguous. Steuart v. McChesney, 444 A.2d 659, 661 (Pa. 1982). 35. Defendants' incorporate as if fully set forth herein their response to paragraph thirty-four (34) supra. 36. Denied. There is no dispute, aside from that of Plaintiff's counsel that the price term for the first floor was $16,000.00. This was testified to by James Boggs at his April 4, 2011 Deposition, on Page 21 testified that the price of the first floor was $16,000.00. (N.T. 97). At trial he and Mr. McCorkel conveniently changed their testimony to state that the number could either be a six or a one. (N.T. 57, 97). Mr. Webster testified that the number was $16,000.00 and was higher than the second floor because of the additional labor required to pour the foundation and set up the first floor. Specifically Mr. Webster testified that "[t]he first floor you have a lot more labor involved. You have to pour the foundation all the way around, and then you have to set forms all the way around, and you have to put, install the pylon. The second floor you don't have to do no forming. All you have to do is install the wire mesh. All the forms are within the building so there is less labor involved." (N.T. 211). By way of further response, upon review of the "bid" a hook can be seen on the disputed number a third of the way from the bottom 7 which clearly indicates that it is a six rather than a one. There are four other handwritten number ones on the bid and none have the hook. 37. The averments contained in paragraph thirty-seven (37) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 38. Denied The averments contained in paragraph thirty-eight (38) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. D. Whether the Court's determination that Webster Construction complied with the implied warranty of reasonable workmanship and fitness for the intended purpose was an error. 39. The averments contained in paragraph thirty-nine (39) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 40. The averments contained in paragraph forty (40) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 41. Denied. The averments contained in paragraph forty-one (41) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. E. Whether the Court's determination that Webster Construction's performance was impossible due to defective concrete was an error 42. The averments contained in paragraph forty-two (42) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. By way of further response, the Court found that Webster's testimony concerning that exposure to snow, ice, and water damaged the slab beyond his ability to repair it. (Opinion at 13). Further, the Court noted that Webster introduced the batch reports for the cement mix showing some trucks with a lower amount of accelerant which the Court found to be consistent with the theory that the cement did not set up in some areas. (Opinion at 13-14; See N.T. 246-48). The Court 8 further found that "[i]t only stands to reason that if Webster's work was so defective and unsatisfactory on December 29, 2009, why in the world would McCorkel have him back to do the second floor over two and a half months later. (Opinion at 14). 43. Denied. It is specifically denied that the first time Webster Construction alleged that the concrete mixture was somehow deficient was at trial and offered no exhibits or expert testimony to support this excuse for nonperformance. To the contrary, as outlined in Defendants' Counsel's letter to the Court dated November 19, 2012, Defendant's outlined all of the times, of record that Defendants maintained this defense. Defendants first raised this defense in paragraphs 17 and 33 of their Answer. Further, this defense was raised in paragraph 63 of Defendant's, M. Webster Construction, Inc., counterclaim. This defense was listed in Defendants' Pre-Trial Memorandum in Section I (d)(e). Accordingly Plaintiff addressed the concrete mix as a factual issue in its Pre-Trial submission in Section I (c). The Pennsy Supply documents were joint exhibits 13, 26 and 27 at trial. Additionally, at the time of trial, Mr. Webster testified that he requested that the maximum amount of calcium be added to the cement mix as an accelerant. (N.T. 121-223). Sean Keisling of Pennsy Supply testified that Mr. Webster had no dealings with Pennsy regarding the cement mixture. (N.T. 170). Mr. Keisling further testified that the concrete supplied for the project was a standard commercial mix, suitable for a self-storage unit and that the concrete did not contain an accelerant. (N.T. 171-72). Finally, Plaintiff had the burden of 9 establishing the cause of the concrete defects which they failed to do aside from blaming Defendants. 44. The averments contained in paragraph forty-four (44) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. By way of further response, Defendants incorporate, as if fully set forth herein their responses to paragraph forty-three (43) supra. 45. The averments contained in paragraph forty-five (45) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. By way of further response, Defendants incorporate, as if fully set forth herein their responses to paragraph forty-three (43) supra. 46. Denied. The averments contained in paragraph forty-six (46) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. By way of further response, Defendants incorporate, as if fully set forth herein, their responses to paragraph forty-three (43) supra. F. Whether the Court's decision is not supported by the record. 47. The averments contained in paragraph forty-seven (47) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 48. Denied. The averments contained in paragraph forty-eight (48) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. By way of further response, Defendants incorporate, as if fully set forth herein, their response to paragraph thirty-six (36) supra. 49. Denied. The averments contained in paragraph forty-nine (49) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. By 10 way of further response, Plaintiff's own witness, James A. Boggs testified that McCorkel's employees would work together with Webster's employees and were present during the pour to help install the stone and do the gradings. This is further supported by McCorkel's invoices to Sovran which show six hours labor on the date of the pour. (N.T. 100-02). Further, Mr. Boggs testified that it may have in fact been more and the additional time may have been eaten by McCorkel. (N.T. 101). 50. Denied. The averments contained in paragraph fifty (50) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 51. Denied. The averments contained in paragraph fifty-one (51) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 52. Denied. The averments contained in paragraph fifty-two (52) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. By way of further response, Defendants incorporate, as if fully set forth herein their responses to paragraph forty-three (43) supra. 53. Denied. The averments contained in paragraph fifty-three (53) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 54. Denied. The averments contained in paragraph fifty-four (54) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 55. Denied. The averments contained in paragraph fifty-five (55) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 56. Denied. The averments contained in paragraph fifty-six (56) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 11 57. Denied. The averments contained in paragraph fifty-seven (57) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 58. Denied. The averments contained in paragraph fifty-eight (58) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. 59. Denied. The averments contained in paragraph fifty-one (59) of Plaintiff's Post Trial Motion are conclusions of law to which no response is required. Defendants' incorporate as if fully set forth herein their responses to paragraph twenty-five (25) and twenty-seven (27) supra. WHEREFORE, Defendants respectfully request that Your Honor deny Plaintiff's Post-Trial Motions, in their entirety. Date: RespectfuVI bmitted, Darrell . ethlefs, Esquire I. D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants 12 MCCORKEL CONSTRUCTION SERVICES, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 10-4348 - CIVIL V. M. WEBSTER CONSTRUCTION,: INC., and MICHAEL J. WEBSTER, Defendants CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Response to Plaintiffs Post-Trial Motions, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: McCorkel Construction Services, Inc. c/o Wayne S. Martin, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, Pennsylvania 17011 Attorney for Plaintiff Respec Ily Submitted, Date: Darr . Dethlefs, Esquire I. D. # 58805 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendants 13 MCCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS OF SERVICES, INC. CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. M. WEBSTER CONSTRUCTION, INC. AND MICHAEL J. WEBSTER DEFENDANTS NO. 10-4348 CIVIL IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., March 27, 2013 — On January 9, 2013, after a non-jury trial, judgment was entered against Plaintiff McCorkel Construction Services, Inc. (hereinafter"McCorkel") and in favor of Defendant, M. Webster Construction, Inc. (hereinafter 'Webster"). McCorkel was ordered to pay damages in the amount of$28,450.00 with legal interest dating from January 9, 2013, on Webster's Breach of Contract Counterclaim.' McCorkel has filed this appeal to the Superior Court of Pennsylvania, alleging that: I. The Lower Court erred in construing the contract between the parties by: a. Holding that the subcontractor was not obligated to comply with the Pennsylvania Construction Code Act, 35 P.S. §§7210.101- 7210.1103. b. Holding that the implied warranty of reasonable workmanship and fitness for the intended purposes did not require the subcontractor to perform work according to existing standards of construction in the area in which the building was erected. c. Holding that project drawings/blueprints were not an essential part of a subcontract where the subcontractor admittedly based its bid on these drawings/blueprints and evidence shows that the parties intended the drawings/blueprints to be an essential term of the subcontract, and 1 See, In Re: Non-Jury Trial,Order of Court,J. Ebert,January 9, 2013. d. By construing what the Court considered ambiguities in what the Court determined was "the contract" in favor of the party that drafted "the contract". II. The Lower Court erred in failing to find Defendant/Appellee in breach of the contract as it was undisputed that: (1) Defendant/Appellee's work was defective and unacceptable to the owner of the property; and (2) Defendant/Appellee tried but failed to correct the defective work and abandoned the project. III. The Lower Court made an error of law by holding that Defend a nt/Appel lee's performance was impossible due to an alleged defective concrete mixture despite the fact that (1) Defendant/Appellee offered no exhibits or expert testimony that the concrete mixture was defective; (2) there is undisputed evidence that the concrete mixture was proper; and (3) Defend ant/Appellee waived this defense under Pa.R.C.P. 1032 by failing to plead impossibility of performance as an affirmative defense. 2 This Court previously filed an opinion on January 9, 2013, amended January 15, 2013, which deals with the facts and legal issues presented in this case. This opinion is filed pursuant to Pa. R.A.P. 1925(a) to supplement the prior opinion and to more specifically address those issues raised in the Plaintiff's Statement of Matters Complained of on Appeal. Procedural History The procedural history prior to the non-jury trial can be found in this Court's prior opinion, filed January 9, 2013, and amended January 15, 2013.3 After the non-jury trial, this Court found in favor of Webster and ordered McCorkel to pay damages in the amount of$28,450.00 with legal interest.4 McCorkel filed a Motion for Post-Trial Relief Z See Concise Statement of Matters Complained of on Appeal Pursuant to Pa.R.C.P. 1925(b),filed February 22, 2013. 3 In Re: Non-Jury Trial Opinion and Order of Court,filed January 9, 2013, p. 1-2(Ebert,J.)(hereinafter"Trial Opinion at " 4 Trial Opinion at 19. 2 pursuant to Pa.R.C.P. 227.1 on January 22, 2013.5 This Court denied McCorkel's Motion for Post-Trial Relief by Order dated February 5, 2013.6 McCorkel filed a Notice of Appeal on February 7, 2013,' and a Concise Statement of Matters Complained of on Appeal on February 22, 2013.8 Finding of Facts A detailed explanation of the facts can be found in this Court's prior opinion filed on January 9, 2013, and amended January 15, 2013.9 Discussion L Standard of Review On appeal from a non-jury trial verdict, the trial court's findings of fact are given the same weight as jury verdicts. John B. Conomos. Inc. v. Sun Co.. Inc. (R&M), 831 A.2d 696, 703 (Pa. Super. 2003). Those findings that are free from error in applying the law and supported by competent evidence should not be disturbed. Id. "Credibility determinations and consideration of conflicts in the evidence are within the purview of the trial court and...should not be reweighed on appeal". Id. The evidence is reviewed in the light most favorable to the verdict winner. Id. Each matter complained of by McCorkel will be addressed in turn. s Plaintiff, McCorkel Construction Services, Inc.'s Motion for Post-Trial Relief Pursuant to Pa.R.C.P. 227.1,filed January 22,2013. 6 In Re:Plaintiff, McCorkel Construction Services, Inc.'s Motion for Post-Trial Relief Pursuant to Pa.R.C.P. 227.1, Order of Court, February 5,2013,J. Ebert. Notice of Appeal,filed February 7, 2013. 8 Concise Statement,filed February 22,2013. 9 Trial Opinion at 2-7. 3 H. Contract Construction McCorkel first complains that this Court erred in its interpretation of the contract between the parties for several reasons. In reviewing a decision regarding contractual intent, any ambiguity in the contract is subject to an abuse of discretion review because it is considered a fact-intensive finding. Conomos, 831 A.2d at 703-4. If the contract is unambiguous, the meaning is a question of law subject to de novo review. Id. at 704. a. Construction Code McCorkel first contends that this Court erred in finding that Webster was not obligated to comply with the Pennsylvania Construction Code Act, 35 P.S. §§ 7210.101- 7210.1103. During trial, McCorkel argued that Webster failed to follow the American Concrete Institute (hereinafter "ACI") standards for cold weather concrete pouring found in ACI 318 Section 5.12.10 These ACI standards for cold weather concrete pouring are incorporated into the International Building Code 2006 (hereinafter "I.B.C. 2006") through Section 1905.12.11 The I.B.C. 2006 is then incorporated into the Pennsylvania Construction Code. This Court did not err in finding that these standards were not a part of the contract. When interpreting any contract, "one of the major issues concerns the determination of what the parties intended" and whether the writing represents the complete and exclusive agreement between the parties. Peugeot Motors of America, Inc. v. Stout, 456 A.2d 1002, 1006-08 (Pa. Super. 1983). This Court found that the contract was a mixed written and oral contract consisting of Webster's handwritten bid io See In Re: Non-Jury Trial,April 2, 2012—April 3, 2012,J. Ebert, p. 125-28(hereinafter"N.T._");Joint Ex. 10 11 At the time the contract was entered into, I.B.C. 2006 was in effect.See Joint Ex.9. 4 and McCorkel's oral acceptance.12 As highlighted in the previous opinion, the contract itself combined with the fact that McCorkel rejected a previous bid of Webster's for the entire concrete project showed that the contract for labor only was really intended to be the full agreement between the parties.13 The contract contained the size of the slabs to be poured, the price per slab, and the term labor only. The contract made no mention of any standards or regulations required to be followed. Additionally, there was no evidence of any discussions between the parties regarding any standards to be followed either before or after the contract was accepted. McCorkel never went over the I.B.C. 2006 with Webster or discussed codes and standards with him.14 There was simply no evidence of any intent of the parties to include these standards and regulations as part of the labor only contract. However, even assuming arguendo that the Pennsylvania Construction Code Act should have been considered part of the contract, McCorkel has still failed to show that Webster breached the contract. The ACI for cold weather concrete pouring, 318 Section 5.12.1 states that "adequate equipment shall be provided for heating concrete materials and protecting concrete during freezing or near-freezing weather."15 Under the terms of the contract, Webster was only to provide the labor for the concrete pour 12 Trial Opinion at 9 13 See Trial Opinion at 10. It should be noted that neither party objected to the admission of any parol evidence regarding the contract formation, negotiations,or testimony of any discussions between the parties regarding the contract or its terms. Therefore any objections to parol evidence violations have been waived. See Murray v. University of Pennsylvania.490 A.2d 839,844(Pa.Super. 1985)(holding that parol evidence may always be considered to determine whether the writing is intended to be complete). See also Rubin v. Lustro Tile Products Corp., 192 A.2d 731, 733(Pa. 1963)(parol evidence admissible to determine true intent if not used to vary,alter, or contradict terms of written agreement). 14 See N.T. 249 15 Joint Ex. 10 5 and not the equipment.16 Therefore, any equipment required to heat and protect the concrete during the freezing weather as required by the ACI should have been provided by McCorkel. Furthermore, there was no evidence presented that Webster failed to comply with ACI Commentary R5.12, which states that recommendations for cold weather concreting are provided in an article by ACI Committee 306.17 Since the commentary only provides recommendations, the ACI Committee 306 article is not a mandatory requirement of the ACI standards, the I.B.C. 2006 or the Pennsylvania Construction Code Act. Any failure, if any, to follow these recommendations is simply not evidence of a failure on Webster's part to follow the Pennsylvania Construction Code Act. By hiring Webster to perform labor only, McCorkel retained ultimate control of the concrete project. McCorkel had the ability and responsibility to enforce any standards and provide any equipment necessary to pour the concrete properly. There was no error committed by this Court. b. Implied Warranty of Reasonable Workmanship McCorkel next contends that it was an error to hold that the implied warranty of reasonable workmanship and fitness for the intended purpose did not require Webster to perform work in accordance to existing standards of construction. This Court relies on its discussion regarding reasonable workmanship in its prior opinion and reiterates that reasonable workmanship means reasonable under the circumstances. Elderkin v. Gaster, 288 A.2d 771, 776 (Pa. 1972)(see footnote 13).18 Webster met this standard especially when considering the circumstances, including: the labor only contract, 16 With the sole exception that Webster was to supply the pump for the second floor pour. See Joint Ex. 5. 17 Joint Ex. 10 is Trial Opinion at 12-14 6 freezing temperatures, McCorkel's exposure of the slab to the elements, and the questionable quality of the cement mix. This Court did not err in finding that Webster performed to a reasonable workmanship standard. c. Construction Drawings/Blueprints McCorkel next alleges that it was an error in holding that the construction drawings/blueprints were not an essential part of the contract because Webster relied on those drawings to submit a bid. The drawings/blueprints contained the notation I.B.C. 2006 in the corner, which McCorkel argued at trial indicated that the I.B.C. 2006 and by incorporation, the ACI was made part of the contract with Webster.19 This Court did not err in finding that the construction drawings/blueprints were not an essential part of the contract. While it is correct that Webster was provided a copy of the drawings prior to making his bid, Webster only relied on the size of the concrete slabs. Similar to the Pennsylvania Construction Code Act, I.B.C. 2006, and ACI standards, no specific reference was made to the drawings/blueprints in the contract. There was no evidence of any discussion between the parties specifically regarding the drawings/blueprints and their applicability to the contract.20 Additionally, Webster was not made a party to or was shown a copy of McCorkel's contract with Sovran Self Storage, Inc. (hereinafter "Sovran"), the owner of the project.21 This Court found this consistent with a contract for labor only and Webster was not bound by anything contained in the drawings/blueprints other than providing labor for the concrete work. Even assuming arguendo that the drawings/blueprints were part of the contract, McCorkel has not shown that Webster breached the contract. This Court found that 19 N.T. 123-28;Joint Ex.8 20 Again, no objection was made by either party to any parol evidence. 21 N.T. 249;See Joint Ex.7 7 Webster provided the labor and poured the cement for the two size concrete slabs as required by the drawings. The cement was hardening to the strength required by the drawings/blueprints according to Timothy Kindt, the Quality Control manager for aggregate and concrete for Pennsy Supply, who performed a swiss hammer test on the cement.22 Additionally, as discussed supra, any notation of the I.B.C. 2006 on the drawings/blueprints does not show that Webster breached the contract. Furthermore, the ACI Committee 306 Report for Cold Weather Concreting was not made a part of the drawing/blueprints and therefore could not have been incorporated into the contract between McCorkel and Webster, even if the drawings/blueprints are considered part of the agreement. The ACI Committee 306 Report states: ACI Committee Reports, Guides, Standard Practices, and Commentaries are intended for guidance in designing, planning, executing, or inspecting construction and in preparing specifications. Reference to these documents shall not be made in the Project Documents. If items found in these documents are desired to be part of the Project Documents they should be ,phrased in mandatory language and incorporated into the Project Documents." [emphasis added]. There is no mandatory language on the drawing/blueprints suggesting that the ACI Committee 306 report was ever incorporated.24 This Court did not err. d. Contract Ambiguities McCorkel next contends that this Court erred by determining ambiguities in the contract in favor of Webster, the party that "drafted the contract". The contract consisted of a bid on one sheet of paper with the handwritten price to provide labor only. zz N.T. 110 23 Joint Ex. 10 24 See Joint Ex.8 8 MCCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS OF SERVICES, INC. CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. M. WEBSTER CONSTRUCTION, INC. AND MICHAEL J. WEBSTER DEFENDANTS NO. 10-4348 CIVIL IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., March 27, 2013 — On January 9, 2013, after a non-jury trial, judgment was entered against Plaintiff McCorkel Construction Services, Inc. (hereinafter"McCorkel") and in favor of Defendant, M. Webster Construction, Inc. (hereinafter 'Webster"). McCorkel was ordered to pay damages in the amount of$28,450.00 with legal interest dating from January 9, 2013, on Webster's Breach of Contract Counterclaim.' McCorkel has filed this appeal to the Superior Court of Pennsylvania, alleging that: I. The Lower Court erred in construing the contract between the parties by: a. Holding that the subcontractor was not obligated to comply with the Pennsylvania Construction Code Act, 35 P.S. §§7210.101- 7210.1103. b. Holding that the implied warranty of reasonable workmanship and fitness for the intended purposes did not require the subcontractor to perform work according to existing standards of construction in the area in which the building was erected. c. Holding that project drawings/blueprints were not an essential part of a subcontract where the subcontractor admittedly based its bid on these drawings/blueprints and evidence shows that the parties intended the drawings/blueprints to be an essential term of the subcontract, and 1 See, In Re: Non-Jury Trial,Order of Court,J. Ebert,January 9, 2013. d. By construing what the Court considered ambiguities in what the Court determined was "the contract" in favor of the party that drafted "the contract". II. The Lower Court erred in failing to find Defendant/Appellee in breach of the contract as it was undisputed that: (1) Defendant/Appellee's work was defective and unacceptable to the owner of the property; and (2) Defendant/Appellee tried but failed to correct the defective work and abandoned the project. III. The Lower Court made an error of law by holding that Defend a nt/Appel lee's performance was impossible due to an alleged defective concrete mixture despite the fact that (1) Defendant/Appellee offered no exhibits or expert testimony that the concrete mixture was defective; (2) there is undisputed evidence that the concrete mixture was proper; and (3) Defend ant/Appellee waived this defense under Pa.R.C.P. 1032 by failing to plead impossibility of performance as an affirmative defense. 2 This Court previously filed an opinion on January 9, 2013, amended January 15, 2013, which deals with the facts and legal issues presented in this case. This opinion is filed pursuant to Pa. R.A.P. 1925(a) to supplement the prior opinion and to more specifically address those issues raised in the Plaintiff's Statement of Matters Complained of on Appeal. Procedural History The procedural history prior to the non-jury trial can be found in this Court's prior opinion, filed January 9, 2013, and amended January 15, 2013.3 After the non-jury trial, this Court found in favor of Webster and ordered McCorkel to pay damages in the amount of$28,450.00 with legal interest.4 McCorkel filed a Motion for Post-Trial Relief Z See Concise Statement of Matters Complained of on Appeal Pursuant to Pa.R.C.P. 1925(b),filed February 22, 2013. 3 In Re: Non-Jury Trial Opinion and Order of Court,filed January 9, 2013, p. 1-2(Ebert,J.)(hereinafter"Trial Opinion at " 4 Trial Opinion at 19. 2 pursuant to Pa.R.C.P. 227.1 on January 22, 2013.5 This Court denied McCorkel's Motion for Post-Trial Relief by Order dated February 5, 2013.6 McCorkel filed a Notice of Appeal on February 7, 2013,' and a Concise Statement of Matters Complained of on Appeal on February 22, 2013.8 Finding of Facts A detailed explanation of the facts can be found in this Court's prior opinion filed on January 9, 2013, and amended January 15, 2013.9 Discussion L Standard of Review On appeal from a non-jury trial verdict, the trial court's findings of fact are given the same weight as jury verdicts. John B. Conomos. Inc. v. Sun Co.. Inc. (R&M), 831 A.2d 696, 703 (Pa. Super. 2003). Those findings that are free from error in applying the law and supported by competent evidence should not be disturbed. Id. "Credibility determinations and consideration of conflicts in the evidence are within the purview of the trial court and...should not be reweighed on appeal". Id. The evidence is reviewed in the light most favorable to the verdict winner. Id. Each matter complained of by McCorkel will be addressed in turn. s Plaintiff, McCorkel Construction Services, Inc.'s Motion for Post-Trial Relief Pursuant to Pa.R.C.P. 227.1,filed January 22,2013. 6 In Re:Plaintiff, McCorkel Construction Services, Inc.'s Motion for Post-Trial Relief Pursuant to Pa.R.C.P. 227.1, Order of Court, February 5,2013,J. Ebert. Notice of Appeal,filed February 7, 2013. 8 Concise Statement,filed February 22,2013. 9 Trial Opinion at 2-7. 3 H. Contract Construction McCorkel first complains that this Court erred in its interpretation of the contract between the parties for several reasons. In reviewing a decision regarding contractual intent, any ambiguity in the contract is subject to an abuse of discretion review because it is considered a fact-intensive finding. Conomos, 831 A.2d at 703-4. If the contract is unambiguous, the meaning is a question of law subject to de novo review. Id. at 704. a. Construction Code McCorkel first contends that this Court erred in finding that Webster was not obligated to comply with the Pennsylvania Construction Code Act, 35 P.S. §§ 7210.101- 7210.1103. During trial, McCorkel argued that Webster failed to follow the American Concrete Institute (hereinafter "ACI") standards for cold weather concrete pouring found in ACI 318 Section 5.12.10 These ACI standards for cold weather concrete pouring are incorporated into the International Building Code 2006 (hereinafter "I.B.C. 2006") through Section 1905.12.11 The I.B.C. 2006 is then incorporated into the Pennsylvania Construction Code. This Court did not err in finding that these standards were not a part of the contract. When interpreting any contract, "one of the major issues concerns the determination of what the parties intended" and whether the writing represents the complete and exclusive agreement between the parties. Peugeot Motors of America, Inc. v. Stout, 456 A.2d 1002, 1006-08 (Pa. Super. 1983). This Court found that the contract was a mixed written and oral contract consisting of Webster's handwritten bid io See In Re: Non-Jury Trial,April 2, 2012—April 3, 2012,J. Ebert, p. 125-28(hereinafter"N.T._");Joint Ex. 10 11 At the time the contract was entered into, I.B.C. 2006 was in effect.See Joint Ex.9. 4 MCCORKEL CONSTRUCTION IN THE COURT OF COMMON PLEAS OF SERVICES, INC. CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. M. WEBSTER CONSTRUCTION, INC. AND MICHAEL J. WEBSTER DEFENDANTS NO. 10-4348 CIVIL IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., March 27, 2013 — On January 9, 2013, after a non-jury trial, judgment was entered against Plaintiff McCorkel Construction Services, Inc. (hereinafter"McCorkel") and in favor of Defendant, M. Webster Construction, Inc. (hereinafter 'Webster"). McCorkel was ordered to pay damages in the amount of$28,450.00 with legal interest dating from January 9, 2013, on Webster's Breach of Contract Counterclaim.' McCorkel has filed this appeal to the Superior Court of Pennsylvania, alleging that: I. The Lower Court erred in construing the contract between the parties by: a. Holding that the subcontractor was not obligated to comply with the Pennsylvania Construction Code Act, 35 P.S. §§7210.101- 7210.1103. b. Holding that the implied warranty of reasonable workmanship and fitness for the intended purposes did not require the subcontractor to perform work according to existing standards of construction in the area in which the building was erected. c. Holding that project drawings/blueprints were not an essential part of a subcontract where the subcontractor admittedly based its bid on these drawings/blueprints and evidence shows that the parties intended the drawings/blueprints to be an essential term of the subcontract, and 1 See, In Re: Non-Jury Trial,Order of Court,J. Ebert,January 9, 2013. d. By construing what the Court considered ambiguities in what the Court determined was "the contract" in favor of the party that drafted "the contract". II. The Lower Court erred in failing to find Defendant/Appellee in breach of the contract as it was undisputed that: (1) Defendant/Appellee's work was defective and unacceptable to the owner of the property; and (2) Defendant/Appellee tried but failed to correct the defective work and abandoned the project. III. The Lower Court made an error of law by holding that Defend a nt/Appel lee's performance was impossible due to an alleged defective concrete mixture despite the fact that (1) Defendant/Appellee offered no exhibits or expert testimony that the concrete mixture was defective; (2) there is undisputed evidence that the concrete mixture was proper; and (3) Defend ant/Appellee waived this defense under Pa.R.C.P. 1032 by failing to plead impossibility of performance as an affirmative defense. 2 This Court previously filed an opinion on January 9, 2013, amended January 15, 2013, which deals with the facts and legal issues presented in this case. This opinion is filed pursuant to Pa. R.A.P. 1925(a) to supplement the prior opinion and to more specifically address those issues raised in the Plaintiff's Statement of Matters Complained of on Appeal. Procedural History The procedural history prior to the non-jury trial can be found in this Court's prior opinion, filed January 9, 2013, and amended January 15, 2013.3 After the non-jury trial, this Court found in favor of Webster and ordered McCorkel to pay damages in the amount of$28,450.00 with legal interest.4 McCorkel filed a Motion for Post-Trial Relief Z See Concise Statement of Matters Complained of on Appeal Pursuant to Pa.R.C.P. 1925(b),filed February 22, 2013. 3 In Re: Non-Jury Trial Opinion and Order of Court,filed January 9, 2013, p. 1-2(Ebert,J.)(hereinafter"Trial Opinion at " 4 Trial Opinion at 19. 2 pursuant to Pa.R.C.P. 227.1 on January 22, 2013.5 This Court denied McCorkel's Motion for Post-Trial Relief by Order dated February 5, 2013.6 McCorkel filed a Notice of Appeal on February 7, 2013,' and a Concise Statement of Matters Complained of on Appeal on February 22, 2013.8 Finding of Facts A detailed explanation of the facts can be found in this Court's prior opinion filed on January 9, 2013, and amended January 15, 2013.9 Discussion L Standard of Review On appeal from a non-jury trial verdict, the trial court's findings of fact are given the same weight as jury verdicts. John B. Conomos. Inc. v. Sun Co.. Inc. (R&M), 831 A.2d 696, 703 (Pa. Super. 2003). Those findings that are free from error in applying the law and supported by competent evidence should not be disturbed. Id. "Credibility determinations and consideration of conflicts in the evidence are within the purview of the trial court and...should not be reweighed on appeal". Id. The evidence is reviewed in the light most favorable to the verdict winner. Id. Each matter complained of by McCorkel will be addressed in turn. s Plaintiff, McCorkel Construction Services, Inc.'s Motion for Post-Trial Relief Pursuant to Pa.R.C.P. 227.1,filed January 22,2013. 6 In Re:Plaintiff, McCorkel Construction Services, Inc.'s Motion for Post-Trial Relief Pursuant to Pa.R.C.P. 227.1, Order of Court, February 5,2013,J. Ebert. Notice of Appeal,filed February 7, 2013. 8 Concise Statement,filed February 22,2013. 9 Trial Opinion at 2-7. 3 H. Contract Construction McCorkel first complains that this Court erred in its interpretation of the contract between the parties for several reasons. In reviewing a decision regarding contractual intent, any ambiguity in the contract is subject to an abuse of discretion review because it is considered a fact-intensive finding. Conomos, 831 A.2d at 703-4. If the contract is unambiguous, the meaning is a question of law subject to de novo review. Id. at 704. a. Construction Code McCorkel first contends that this Court erred in finding that Webster was not obligated to comply with the Pennsylvania Construction Code Act, 35 P.S. §§ 7210.101- 7210.1103. During trial, McCorkel argued that Webster failed to follow the American Concrete Institute (hereinafter "ACI") standards for cold weather concrete pouring found in ACI 318 Section 5.12.10 These ACI standards for cold weather concrete pouring are incorporated into the International Building Code 2006 (hereinafter "I.B.C. 2006") through Section 1905.12.11 The I.B.C. 2006 is then incorporated into the Pennsylvania Construction Code. This Court did not err in finding that these standards were not a part of the contract. When interpreting any contract, "one of the major issues concerns the determination of what the parties intended" and whether the writing represents the complete and exclusive agreement between the parties. Peugeot Motors of America, Inc. v. Stout, 456 A.2d 1002, 1006-08 (Pa. Super. 1983). This Court found that the contract was a mixed written and oral contract consisting of Webster's handwritten bid io See In Re: Non-Jury Trial,April 2, 2012—April 3, 2012,J. Ebert, p. 125-28(hereinafter"N.T._");Joint Ex. 10 11 At the time the contract was entered into, I.B.C. 2006 was in effect.See Joint Ex.9. 4 and McCorkel's oral acceptance.12 As highlighted in the previous opinion, the contract itself combined with the fact that McCorkel rejected a previous bid of Webster's for the entire concrete project showed that the contract for labor only was really intended to be the full agreement between the parties.13 The contract contained the size of the slabs to be poured, the price per slab, and the term labor only. The contract made no mention of any standards or regulations required to be followed. Additionally, there was no evidence of any discussions between the parties regarding any standards to be followed either before or after the contract was accepted. McCorkel never went over the I.B.C. 2006 with Webster or discussed codes and standards with him.14 There was simply no evidence of any intent of the parties to include these standards and regulations as part of the labor only contract. However, even assuming arguendo that the Pennsylvania Construction Code Act should have been considered part of the contract, McCorkel has still failed to show that Webster breached the contract. The ACI for cold weather concrete pouring, 318 Section 5.12.1 states that "adequate equipment shall be provided for heating concrete materials and protecting concrete during freezing or near-freezing weather."15 Under the terms of the contract, Webster was only to provide the labor for the concrete pour 12 Trial Opinion at 9 13 See Trial Opinion at 10. It should be noted that neither party objected to the admission of any parol evidence regarding the contract formation, negotiations,or testimony of any discussions between the parties regarding the contract or its terms. Therefore any objections to parol evidence violations have been waived. See Murray v. University of Pennsylvania.490 A.2d 839,844(Pa.Super. 1985)(holding that parol evidence may always be considered to determine whether the writing is intended to be complete). See also Rubin v. Lustro Tile Products Corp., 192 A.2d 731, 733(Pa. 1963)(parol evidence admissible to determine true intent if not used to vary,alter, or contradict terms of written agreement). 14 See N.T. 249 15 Joint Ex. 10 5 and not the equipment.16 Therefore, any equipment required to heat and protect the concrete during the freezing weather as required by the ACI should have been provided by McCorkel. Furthermore, there was no evidence presented that Webster failed to comply with ACI Commentary R5.12, which states that recommendations for cold weather concreting are provided in an article by ACI Committee 306.17 Since the commentary only provides recommendations, the ACI Committee 306 article is not a mandatory requirement of the ACI standards, the I.B.C. 2006 or the Pennsylvania Construction Code Act. Any failure, if any, to follow these recommendations is simply not evidence of a failure on Webster's part to follow the Pennsylvania Construction Code Act. By hiring Webster to perform labor only, McCorkel retained ultimate control of the concrete project. McCorkel had the ability and responsibility to enforce any standards and provide any equipment necessary to pour the concrete properly. There was no error committed by this Court. b. Implied Warranty of Reasonable Workmanship McCorkel next contends that it was an error to hold that the implied warranty of reasonable workmanship and fitness for the intended purpose did not require Webster to perform work in accordance to existing standards of construction. This Court relies on its discussion regarding reasonable workmanship in its prior opinion and reiterates that reasonable workmanship means reasonable under the circumstances. Elderkin v. Gaster, 288 A.2d 771, 776 (Pa. 1972)(see footnote 13).18 Webster met this standard especially when considering the circumstances, including: the labor only contract, 16 With the sole exception that Webster was to supply the pump for the second floor pour. See Joint Ex. 5. 17 Joint Ex. 10 is Trial Opinion at 12-14 6 freezing temperatures, McCorkel's exposure of the slab to the elements, and the questionable quality of the cement mix. This Court did not err in finding that Webster performed to a reasonable workmanship standard. c. Construction Drawings/Blueprints McCorkel next alleges that it was an error in holding that the construction drawings/blueprints were not an essential part of the contract because Webster relied on those drawings to submit a bid. The drawings/blueprints contained the notation I.B.C. 2006 in the corner, which McCorkel argued at trial indicated that the I.B.C. 2006 and by incorporation, the ACI was made part of the contract with Webster.19 This Court did not err in finding that the construction drawings/blueprints were not an essential part of the contract. While it is correct that Webster was provided a copy of the drawings prior to making his bid, Webster only relied on the size of the concrete slabs. Similar to the Pennsylvania Construction Code Act, I.B.C. 2006, and ACI standards, no specific reference was made to the drawings/blueprints in the contract. There was no evidence of any discussion between the parties specifically regarding the drawings/blueprints and their applicability to the contract.20 Additionally, Webster was not made a party to or was shown a copy of McCorkel's contract with Sovran Self Storage, Inc. (hereinafter "Sovran"), the owner of the project.21 This Court found this consistent with a contract for labor only and Webster was not bound by anything contained in the drawings/blueprints other than providing labor for the concrete work. Even assuming arguendo that the drawings/blueprints were part of the contract, McCorkel has not shown that Webster breached the contract. This Court found that 19 N.T. 123-28;Joint Ex.8 20 Again, no objection was made by either party to any parol evidence. 21 N.T. 249;See Joint Ex.7 7 Webster provided the labor and poured the cement for the two size concrete slabs as required by the drawings. The cement was hardening to the strength required by the drawings/blueprints according to Timothy Kindt, the Quality Control manager for aggregate and concrete for Pennsy Supply, who performed a swiss hammer test on the cement.22 Additionally, as discussed supra, any notation of the I.B.C. 2006 on the drawings/blueprints does not show that Webster breached the contract. Furthermore, the ACI Committee 306 Report for Cold Weather Concreting was not made a part of the drawing/blueprints and therefore could not have been incorporated into the contract between McCorkel and Webster, even if the drawings/blueprints are considered part of the agreement. The ACI Committee 306 Report states: ACI Committee Reports, Guides, Standard Practices, and Commentaries are intended for guidance in designing, planning, executing, or inspecting construction and in preparing specifications. Reference to these documents shall not be made in the Project Documents. If items found in these documents are desired to be part of the Project Documents they should be ,phrased in mandatory language and incorporated into the Project Documents." [emphasis added]. There is no mandatory language on the drawing/blueprints suggesting that the ACI Committee 306 report was ever incorporated.24 This Court did not err. d. Contract Ambiguities McCorkel next contends that this Court erred by determining ambiguities in the contract in favor of Webster, the party that "drafted the contract". The contract consisted of a bid on one sheet of paper with the handwritten price to provide labor only. zz N.T. 110 23 Joint Ex. 10 24 See Joint Ex.8 8 In reality, this contract was really a verbal one. It is clear from the testimony that McCorkel asked for a bid for labor only. Webster wrote it out on a bid sheet and gave it to McCorkel and McCorkel said, in essence, "okay". Webster can hardly be considered the "drafter" of such a simple and basic contract. McCorkel was free to have discussions with Webster regarding any terms, other than "labor only", they wanted included. McCorkel failed to do this, preferring instead to hire Webster for labor only in order to maximize his profit. When viewing a contract, the determination of whether it is ambiguous is a question of law. Hutchison v. Sunbeam Coal Corp., 519 A.2d 385, 390 (Pa. 1986). A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. Id. A contact is not ambiguous simply because the parties disagree over the interpretation. Metzger v. Clifford Realtv Corp., 476 A.2d 1, 5 (Pa. Super. 1984) (internal quotations omitted). Words used in a contract that are not determined to be ambiguous should be given their plain meaning. See Steuart v. McChesney, 444 A.2d 659, 663 (Pa. 1982) (reaffirming the plain meaning doctrine). This Court determined that the term labor only was not ambiguous and gave the term its plain meaning, which was that Webster would provide only the manpower necessary to pour and finish the concrete work.25 McCorkel was responsible for providing the materials, ordering the cement, and choosing the date on which the cement would be poured. Since McCorkel retained ultimate control of the concrete project by accepting Webster's bid for labor only, any fault in the final concrete work 25 Trial Opinion at 10 9 must be assumed by McCorkel. This Court did not err in construing the term labor only as unambiguous and giving its plain meaning. There was also a disagreement during trial regarding the price for the first floor pour. McCorkel argued that the price was $11,000 while Webster maintained that the price was $16,000. This Court found that the price was $16,000.26 When looking at the handwritten bid, it was clear that the second number of the first floor price was a "6" and not a I" when comparing it with the first number, which was clearly a "1,'.27 The total price seen on the bid was handwritten by McCorkel, not by Webster, and was never sent back to Webster as a counteroffer and was, therefore, not clear evidence of the price term.28 Furthermore, there was testimony from Jim Boggs, McCorkel's project manager and the person who accepted Webster's bid, that at his deposition he believed the price to be $16,000.29 At trial he testified that the price could be either$11,000 or $16,0000 Webster, additionally provided credible testimony as to why the first floor would cost more than the second.31 There was no error made by this Court in construing the contract price for the first floor to be $16,000. N. Breach of Contract McCorkel's second matter complained of is that this Court erred in failing to find that Webster breached the contract. As discussed supra and in this Court's prior opinion, Webster did not breach the contract with McCorkel. McCorkel first argues that 26 Trial Opinion at 3,see footnote 17;Joint Ex.5 27 See Joint Ex.5 28 Joint Ex.6 29 N.T.97 30 N.T.97. 31 N.T. 211. Again,neither party objected to the admission of parol evidence regarding the price terms of the contract by either Jim Boggs or Webster. 10 Webster breached the contract because Webster's work was defective and unacceptable to Sovran. However, Webster never entered into a contract with Sovran. Webster was never shown a copy of the contract between Sovran and McCorkel and was not made privy to its terms and conditions.32 The only contract Webster entered into was with McCorkel to provide labor only for the concrete slabs. That contract did not mention, nor was any evidence presented, that Sovran would have to accept Webster's work for the contract to be satisfied. Here again, McCorkel retained ultimate control of the project and is liable for anything that was unacceptable to Sovran. McCorkel also argues that Webster breached the contract because Webster tried but failed to correct the defective work and abandoned the project. A subcontractor is required to make repairs "[w]here a contract contains an express warranty to remedy" such defects. Brandywine Area Joint School Authority v. Van Cor, Inc., 57 Pa. D. & C.2d 606, 616 (Chest. Co. 1971), aff'd, 291 A.2d 884 (Pa. Super. 1972) (emphasis added). In this case, there was no evidence presented of any express warranty in the contract between Webster and McCorkel concerning Webster's duty to repair. Despite the lack of an express warranty to repair defects in the contract, Webster made a good faith effort to repair the concrete slabs. Webster was unable to make the repairs to the first floor slab because McCorkel had left the slab exposed to snow, ice, and water, which damaged the slab beyond Webster's ability to repair it.33 At some point after Webster indicated he could not make further repairs, he was asked to leave 32 N.T. 249 33 N.T. 136 11 the site by McCorkel preventing him from making any further repairs.34 This Court made no error when it determined that Webster did not breach the contract. IV. Impossibility of Performance McCorkel finally contends that this Court erred in holding that Webster's performance was impossible due to the alleged defective concrete mixture. McCorkel mischaracterizes this Court's holding. This Court did not hold that Webster was excused from performance due to impossibility. This Court held that Webster had in fact performed under the contract to a reasonable workmanship standard after considering all the circumstances which included the possibility of defective concrete.35 Not only does McCorkel mischaracterize this Court's holding, but they offer incorrect reasoning to support their position. Specifically, McCorkel argues there was an error because Webster offered no exhibits or expert testimony and there was undisputed evidence that the concrete mixture was proper. Undisputed is defined as "[n]ot questioned or challenged: uncontested". Black's Law Dictionary 1666 (9th ed. 2009). Here, Webster certainly questioned the quality of the cement. In fact, both Webster and his son, Michael R. Webster, offered testimony that the cement was not setting up correctly in certain areas, leading them to believe that something was wrong with the cement.36 Webster also introduced the batch reports for the cement trucks indicating certain trucks had different amounts of accelerant added.37 34 N.T.49 35 See Trial Opinion at 13. 36 N.T. 205-06, 220-21. 37 Joint Ex.26 and 27. 12 This Court found the batch reports consistent with Webster's testimony that certain areas were not setting up correctly.38 This Court did not find that expert testimony was required. Generally questions concerned with the admission of evidence are within the sound discretion of the trial court. Camp Const. Corp. v. Lumber Products Co., 457 A.2d 937, 939 (Pa. Super. 1983). A lay witness is competent to express opinions when it is rationally based on the witness's perceptions, helpful to a clear understanding of his testimony, and not based on scientific, technical or other specialized knowledge. Id. at 940; Pa.R.E. 701. Webster has been in the construction business since 1989 and has considerable experience in concrete work for self-storage facilities.39 Based on his experience, Webster's testimony was admitted and was helpful and persuasive in showing that the cement mix used was of questionable quality. McCorkel only offered the testimony of Timothy Kindt, who performed the test on the concrete after it was poured and stated that nothing was wrong with the cement.40 It should be noted that McCorkel never offered Mr. Kindt as an expert witness regarding the quality of the cement. Mr. Kindt was the Quality Control manager for Pennsy Supply. Mr. Kindt was, therefore, employed by the very company that supplied the cement for this project. Unquestionably, Kindt was not going to fault his employer for defective concrete. Kindt's bias was, therefore, a factor in weighing his testimony. This Court also found it extremely persuasive that McCorkel retained Webster to do the second floor pour, even after the problems with the first floor.41 If the problems 38 Trial Opinion at 13-14. 39 N.T.209, 221 40 N.T. 104, 116. 41 Trial Opinion at 14 13 were really with Webster and not the cement then McCorkel would not have had Webster back to pour the second floor. This Court did not err and simply weighed the evidence and exhibits presented by both sides and found enough evidence existed to question the quality of the cement. Conclusion For the reasons addressed in both the prior opinion and this supplemental opinion filed pursuant to Pa.R.A.P. 1925(a), this Court did not err in finding in favor of M. Webster Construction, Inc. and against McCorkel Construction, Inc. By the Court, M. L. Ebert, Jr., r-, Theodore Adler, Esquire Attorney for Plaintiff " Darrell C. Dethlefs, Esquire Attorney for Defendant Y'r 14 a MCCORKEL CONSTRUCTION : IN THE COURT OF COMMON PLEAS SERVICES, INC. : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. • : No.: 10-4348-CIVIL-2010 -= _W M. WEBSTER CONSTRUCTION, INC. mom' cp �. and • r — fY MICHAEL J. WEBSTER • " Defendants : CIVIL ACTION—LAW ".`? JOINT MOTION TO RELEASE ESCROW APPEAL SECURITY> -< r) AND NOW, come the above captioned parties, by and through their undersigned attorneys, and files this Joint Motion to Release Escrow Appeal Security pursuant to Pa. R.A.P. 1731 — 1734, and in support thereof, aver as follows: 1. Plaintiff, McCorkel Construction Services, Inc. (hereinafter"McCorkel") is a Pennsylvania corporation, with its principal office located at 1405 Zimmerman Road, Carlisle, Cumberland County, Pennsylvania, 17015. 2. Defendant, M. Webster Construction Inc. (hereinafter "Webster Construction") is a Pennsylvania corporation with a registered office address of 805 Pershing Street, Lebanon, Pennsylvania 17042. 3. Defendant, Michael J. Webster is an adult individual with an address of 805 Pershing Street, Lebanon, Pennsylvania 17042. 4. A non-jury trial was held on April 2 and April 3, 2012. 5. By Order filed with the Prothonotary on January 9, 2013 and Amended on January 15, 2013, the Honorable M.L. Ebert, Jr. ordered McCorkel to pay $28,450.00 to Webster Construction with legal interest date from January 9, 2013. 2 6. McCorkel appealed this Court's judgment which was affirmed by Pennsylvania Superior Court decision dated September 25, 2013. 7. Pursuant to Pa.R.A.P. 1731(a) and 1734(a)(1), McCorkel deposited with the Prothonotary a check in the amount of$34,140 made payable to the "Cumberland County Prothonotary" to operate as a supersedeas during the pendency of the appeal. 8. By Order dated February 13, 2013,the Honorable M.L. Ebert, Jr. ordered and directed the Prothonotary to deposit the $34,140 in an interest bearing escrow account and ordered that the deposit is to be released only upon order of the Court. WHEREFORE,the parties respectfully requests that this Honorable Court order the Prothonotary of Cumberland County to release the amount of$29,684.64 payable to M. Webster Construction, Inc. and to release the remaining escrow account balance payable to McCorkel Construction Services, Inc. Respectfully submitted, DETHLEF YKOSH LAW GROUP, LCC REAGER& ADLER, PC B ��►� ,�� '_.:`i�1 By: `�� Darrell trethlefs, Esquire Theodore A. Adler, Esquire Attorney I.D. No. 58805 Attorney I.D. No. 16267 2132 Market Street Wayne S. Martin, Esquire Camp Hill, PA 17011 Attorney I.D. No. 208078 (717) 975-9446 2331 Market Street Attorney for Defendants Camp Hill, PA 17011 (717) 763-1383 Attorneys for Plaintiff Date: September.16, 2013 Date: September3 2013 3 CERTIFICATE OF SERVICE I, Alana L. Souders, Paralegal to Theodore A. Adler, Esquire and Wayne S. Martin, Esquire, hereby certify that I caused two true and correct copies of the foregoing Motion to Release Escrow Appeal Security to be served upon the following counsel of record via First Class U. S. Mail as follows: Darrell C. Dethlefs, Esquire Bryan W. Shook, Esquire Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 Dated: October 1, 2013 C.9-9-afk9 )*■- MCCORKEL CONSTRUCTION : IN THE COURT OF COMMON PLEAS SERVICES, INC. : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. • : No.: 10-4348-CIVIL-2010 M. WEBSTER CONSTRUCTION, INC. : -0 Is: and • MICHAEL J. WEBSTER • n --�► Defendants : CIVIL ACTION-LAW rte- Co --; c ORDER -'° AND NOW,this 8 day of 0 Ck , 2013, upon consideration of the Joint Motion to Release Escrow Appeal Security, IT IS HEREBY ORDERED AND DIRECTED that: The Motion to Release Escrow Appeal Security is GRANTED and the Prothonotary is ORDERED to release the amount of$29,684.64 payable to M. Webster Construction, Inc. and to release the remaining escrow account balance payable to McCorkel Construction Services, Inc. and to deliver said funds to the parties' attorneys of record. It is further ORDERED that the Prothonotary mark this docket satisfied and discontinued with prejudice as to all parties and claims. By the Court, ■ r M.L. Ebe , Jr. ATayne S. Martin, Esquire C✓ ma\ TO ) 46 .4>' Attorney for Plaintiff, McCorkel Construction Services, Inc. /Darrell Dethlefs, Esquire C✓n'►l +0 4 ~' Attorney for Defendants, M. Webster Construction, Inc. and Michael J. Webster 6e\ RECEIPT FOR TRANSFER Cumberland County Prothonotary' s Office Receipt Date 10/17/2013 Carlisle, Pa 17013 Receipt Time 11 : 31 : 10 Receipt No. 297015 Case Number 2010-09999 Remarks PER ORDER OF COURT DATED 10-8- 13 10-4348 Distribution Of Adjustment Transaction Payee This Adj INTEREST 17003708 - 10-9999 154 . 26- REFUND MCCORKEL CONSTRUCTION SERV IN 154 . 26 RECEIPT FOR TRANSFER Cumberland County Prothonotary' s Office Receipt Date 10/17/2013 Carlisle, Pa 17013 Receipt Time 11 : 25 :42 Receipt No. 297012 MCCORKEL CONSTRUCTION 1405 ZIMMERMAN RD CARLISLE, PA 17015 Case Number 2010-04348 Remarks RELEASE BY ORDER OF COURT DATED 10-08-2013 Distribution Of Adjustment Transaction Payee This Adj BOND 17003708 - 10-9999 29, 684 . 64- REFUND M WEBSTER CONSTRUCTION INC 29, 684 . 64 BOND 17003708 - 10-9999 4, 455 . 36- REFUND MCCORKEL CONSTRUCTION SERV IN 4 , 455 . 36 e1 F 12.-161.4t: t 305129 MID PENN BANK www.midpennbank.com 10-11-2013 60-880/313 DATE PAY TO THE OF M. bbster construction $ 29,684.64 M 6pNKN �29,684do1s 64cts DOLLARS OFFICER'S CHECK Case L 0-4 AUTHORIZED SIGNATURE 3 u' 30 5 L 2911' 1:0 3 L30880 71: 066 2 2 Suiting �-� 305135 MID PENN BANK 10-17-2013 60-880/313 DATE PAY TO THE ItCark @1 Construction Services ORDER OF $ 4,609.62 MIBBANK 134,609dols62cts DOLLARS OFFICER'S CHECK AUTHORIZED SIGNATURE acts e D I O -y 3 9 8 - -re-'2/47N-)(Clif‘. '`� 11' 305 1 3511' 1:0 3 130880 71: 066 2 25..1411' -„ 1' 'uperior Court of Venn ptbanta Karen Reid Bramblett,Esq. Middle District Pennsylvania Judicial Center Prothonotary P.O.Box 62435 Mary A.Graybill,Esq. 601 Commonwealth Avenue,Suite 1600 Deputy Prothonotary Harrisburg,PA 17106-2435 (717)772-1 294 www.pacourts.us/courts/supenor-court CERTIFICATE OF REMITTAL/REMAND OF RECORD TO: David D. Buell Prothonotary RE: McCorkel Const. v. M. Webster Const. & Webster, M. 271 MDA 2013 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 2010-04348 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Parts (w/envelope &transcripts April 5, 2013 2 attached) Remand/Remittal Date: 11/04/2013 ORIGINAL RECIPIENT ONLY- Please acknowledge receipt by signing,dating,and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, c Mary A. Graybill, Esq. .43 w Deputy Prothonotary D /alv trt Enclosure C cc: Theodore A. Adler, Esq. >c c) Darrell Charles Dethlefs, Esq. = a c1..; The Honorable Merle L. Ebert Jr., Judge McCorkel Const. v. M. Webster Const. &Webster, M. 271 MDA 2013 Letter to: Buell, David D. Acknowledgement of Certificate of Remittal/Remand of Record(to be returned): • Signature Date Printed Name NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 MCCORKEL CONSTRUCTION SERVICES, IN THE SUPERIOR COURT OF ,g INC., PENNSYLVANIAN p-,Da' Appellant rn rn'p. w `-4 O -C 'q "} V. I ,,<y+ t r—z M. WEBSTER CONSTRUCTION, INC. AND Z ter.. MICHAEL J. WEBSTER, v 9 Appellees No. 271 MDA 201-'3 Appeal from the Judgment entered March 7, 2013, in the Court of Common Pleas of Cumberland County, Civil Division, at No(s): 2010-04348 BEFORE: GANTMAN, ALLEN, and MUNDY, JJ. MEMORANDUM BY ALLEN, J.: FILED SEPTEMBER 25, 2013 McCorkel Construction Services, Inc. ("Appellant") appeals from the trial court's entry of judgment in favor of appellees M. Webster Construction, Inc. and Michael J. Webster ("Webster"). After careful review, we affirm on the opinions authored by the Honorable M.L. Ebert, Jr. Appellant is a general contractor who contracted with Webster, as a subcontractor, to perform concrete work on a project for Sovran Self Storage ("Sovran"). The project, particularly the concrete work, was not completed to Sovran's satisfaction. On July 1, 2010, Appellant sued Webster alleging three counts: breach of written contract, breach of oral contract, and piercing the corporate veil. Webster responded by filing an answer, new matter and counterclaim in which it asserted breach of contract, unjust enrichment, and the contractor subcontractor payment act. The parties appeared for a bench trial on April 2-3, 2012. The trial court entered its order and opinion in favor of Webster on January 9, 2013.1 Appellant filed a post-trial motion on January 22, 2013, which the trial court denied on February 5, 2013. Appellant filed this timely appeal. Both the trial court and Appellant have complied with Pa.R.A.P. 1925(b). Appellant presents three questions for our review, which Appellant phrases as follows: 1. Whether the Lower Court erred in construing the Contract between the parties by: a. Holding that [Webster] was not obligated to comply with the Pennsylvania Construction Code Act, 35 P.S. §§7210.101-7210.1103; b. Holding that the implied warranty of reasonable workmanship and fitness for the intended purposes did not require [Webster] to perform work according to existing standards of construction in the area in which the building was erected; c. Holding that project drawings/blueprints were not an essential part of a subcontract where [Webster] admittedly based its bid on these drawings/blueprints and evidence shows that the parties intended the drawings/blueprints to be an essential term of the subcontract; and d. By construing what the [trial court] considered ambiguities in what the [trial court] determined was "the Contract" in favor of the party that drafted "the Contract." 1 The trial court amended the January 9, 2013 order and opinion on January 15, 2013 to correct the name of counsel Theodore Adler. - 2 - 2. Whether the Lower Court erred in failing to find [Webster] in breach of the Contract as it was undisputed that: (1) [Webster's] work was defective and unacceptable to the owner of the property; and (2) [Webster] tried but failed to correct the defective work and abandoned the project. 3. Whether the Lower Court erred by holding that [Webster's] performance was impossible due to an alleged defective concrete mixture despite the fact that (1) [Webster] offered no exhibits or expert testimony that the concrete mixture was defective; (2) there is undisputed evidence in the form of test results that the concrete mixture was proper; and (3) [Webster] waived this defense under Pa.R.C.P. 1032 by failing to plead impossibility of performance as an affirmative defense. Appellant's Brief at 5-6. Appellant correctly observes that our scope of review is limited to whether the findings of fact are supported by competent evidence and whether the trial court committed an error of law. Id. at 2, citing Roman Mosaic & Tile Co. v. Thomas P. Carney, Inc., 729 A.2d 73, 76 (Pa. Super. 1999). Webster properly emphasizes that "questions of credibility and conflicts in evidence are for the trial court to resolve and the reviewing court should not reweigh the evidence"; additionally, the evidence is reviewed by this Court in the light most favorable to the verdict winner. Webster's Brief at 4, citing John B. Conomos, Inc. v. Sun Co., Inc. (R&M), 831 A.2d 696, 703 (Pa. Super. 2003). Mindful of the foregoing tenets, we have reviewed the record, heard oral argument, considered the applicable law, and concluded that the trial court committed no error of law. Furthermore, the Honorable M.L. Ebert, - 3 - Jr., sitting as the trial court, has issued two comprehensive and well- reasoned opinions, on January 9, 2013, and March 27, 2013, which we adopt as our own. Judge Ebert has cogently analyzed Appellant's claims, such that further commentary by this Court would be superfluous. Judgment affirmed. Judgment Entered. Deputy'Prothonotary Date: 9/25/2013 - 4 -