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HomeMy WebLinkAbout10-4930SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson ~=,~ '= - •; .- Sheriff ,.: T'E !" - . _ ,.~ .~ q~~tp OS ~l[iR~p~~r .a , , Jody S Smith "~ '~~ 1~~~ ~: ~ 1 r~; ~ ~~= 4;a Chief Deputy ~ ~ , ~~~~~~~ ~ it Q l ~ ~'V G- 1 ~ i~ M Richard W Stewart ~~ ~~~ ~ ~ ~~_ $'~~ LG~ ;; . Solicitor t~~~ce .-F rr1E sKeaIFF - ~-- j~.',t r '... Penn National Casualty Insurance Co. Case Number vs. B.C. Mc~4llister Paving (et al.) 2010-4930 SHERIFF'S RETURN OF SERVICE 08/03/2010 07:25 PM -Ronald Hoover, Deputy Sheriff, who being duly sworn according to law, states that on August 3, 2010 at 1925 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: B.C. McAlister Paving, by making known unto Jill Buffington, adult in charge at 5140 Erbs Bridge Road, Mechanicsburg, Cumberland County, Pennsylvania 17050 its contents and at the same time handing to her personally the said true and correct copy of the same. RONALD HOOVER, DEPUTY 08/03/2010 07:25 PM -Ronald Hoover, Deputy Sheriff, who being duly sworn according to law, states that on August 3, 2010 at 1925 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Bradley C. McAllister, by making known unto Jill Buffington, Wife of defendant at 5140 Erbs Bridge Road, Mechanicsburg, Cumberland County, Pennsylvania 17050 its contents and at the same time handing to her personally the said true and correct copy of the same. RONALD HOOVER, DEPUTY SHERIFF COST: $53.44 August 05, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF (c) CountySuite Sheriff. Teleosoft, Inc. Johnson, Duffie, Stewart & Weidner c By: Jeffrey B. Rettig ?a I.D. No. 19616 Attorneys for Defendan1w. : 301 Market Street P. O. Box 109 == - Lemoyne, Pennsylvania 17043-0109 " " » = cn (717) 761-4540 - br@Jdsw.com 1 PENN NATIONAL MUTUAL CASUALTY INSURANCE CO., a/s/o WINALL INC., d/b/a MIDSTATE, Plaintiffs V. BRAD MCALLISTER, individually and B.C. MCALLISTER PAVING, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. NO. 2010-4930 CIVIL ACTION - LAVA/ JURY TRIAL DEMANDED Defendants PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary of Cumberland County: Kindly enter my appearance on behalf of Defendants, Brad McAllister, individually and B. C. McAllister Paving. in the above-captioned action. Respectfully submitted, JO"NS N , UE?IE, S WART & WEIDNER rrey B. Rettig, Es re rttcrney I. D. No. 1 16 301 Market Street Lemoyne, Pennsylvania 17043 717-761-4540 jbr _jdsw.com Attorney for Defendants 413818 CERTIFICATE OF SERVICE AND NOW, this day of September, 2010, the undersigned does hereby certify that he did this date serve a copy of the foregoing Praecipe for Entry of Appearance upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Thomas E. Brenner, Esquire P. o. Box 1268 Harrisburg, PA 17108-1268 Counsel for Plaintiffs JOHNSON, DUFFIE, ST€rART & WEIDNER by: '?- J rey B. Rettig _ x.r..~i-~'~r ~~.~ s; a?;~~; n f-,f ~~ ~ : ; ~ ~ ~.,. ~,~~r~i~, t IN THE COURT' OF COMMON PLEAS OF ~, ~ £ ~ „Wry ,, ,~ ~_, , ,. CUMBERLAND COUNTY, PENNSYLVANIA •' ~- ~' ' `~'~' ~• ~ PENN NATIONAL MUTUAL _ ; , W , , ,'_ti ~ ~ i ri CASUALTY INSURANCE CO. . a/s/o WINALL INC. d/b/a MIDSTATE, NO. 10-4930 Plaintiff CIVIL ACTION -LAW v. BRAD MCALLISTER, individually and B.C. MCALLISTER PAVING :JURY TRIAL DEMANDED Defendants STIPULATION The parties wish to add as an Exhibit to the Complaint the Contract between the parties attached hereto as Exhibit "A" and referenced in the Complaint in Count I. .~1~ By: ~- ~~eti T ,. .Brenner, Esquire Attorney ID #32085 GOLDBERG KATZMAN, P.C. PO Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney for Plaintiff By: - Jeff e B ti squire Att ey , . ~~ Johnson Duffie 301 Market Street Lemoyne, PA 17043 Attorney for Defendantt Dated: ~ / ~ 1 -- Dated: / ~ // 195583.1 ~X~li b,T ~,~ MID-STATE ~~ F, ~~;, SUBCt~~+tTRACT AGREEMENT AGREEMENT NO: PHASE CODE: 02-353-5 4o22a PHASE DESCRIPTION: Mid-State, 638 Antoine Street, P.O. Box 1864 Harrisburg, PA 17105-1864 • (717) 236.4321 FAX 236-477t1 th AGREEMENT made as of the 13 day of Dec . 2 0 02 between the Contractor: MID-STATE, and B• C. McAllister Paving 5140 Erbs Bridge Rd., Mechanicsburg, PA 17055 The Subcontractor: Attn: Brad McAllister 730-7808 Fax: 761-4447 Renovations & Addition The Project: 1 Peter Drive, Mechanicsburg, PA 17055 Roman Catholic Diocese of Harrisburg The Owner: Union Deposit Rd. , Harrisburg, PA Crabtree Rohrbaugh & Associates The Architect: The Contractor and Subcontractor agree as set forth below, intending to be legally bound hereby: ARTICLE 1. THE CONTRACT DOCUMENTS. The Contract Documents for this Subcontract consist of this agreement and any Exhibits attached hereto, the Agreement between the Owner and the Contractor dated December 5 , 2 0 02 (the "Principal Contract") the Conditions of the Contract between the Owner and Contractor (General, Supplementary and other Conditions), the Drawings, the Specifications, all Addenda issued prior to and all Modifications issued after execution of the agreement between the Owner and Contractor and agreed upon by the parties to this Subcontract. The Principle Contract, less financial information, can be reviewed by the Subcontractor at the Contractor's principal place of business during normal business hours. The Contract Documents include those documents identified on Exhibit A hereto and are incorporated herein by reference as though set forth at length. In the event of any conflict between the provisions of the Subcontract and any other Contract Document, the provisions of this Subcontract shall govern. ARTICLE 2. THE WORK. The Subcontractor hereby covenants and agrees to perform in accordance with the terms and conditions of the Principal Contract, to the approval and acceptance without condition of the Owner and the Contractor, that portion of the work of the Principal Contract as set forth in Exhibit B. All work covered by this Subcontract shall be performed in a skillful and workmanlike manner with material, equipment, etc. being both new and of the best lind and grade for the purpose intended. ARTICLE 3: TIl41E OF C014~IENCEMENTAND SUBSTANTIAL COI4'LPLETION. The subcontractor shall commerce and complete work and deliveries of materials at the times required by the Contractor, TIME BEING OF THE ESSENCE of this Subcontract. ARTICLE 4: THE CONTRACT SUM. The Contractor shall pay the Subcontractor in current funds for the per- formance of the work, subject to additions and deductions by Change Order, the total sum of One Hundred Twenty Seven. Thousand Five Hundred Fifty Twa & 00/100 - - - - - ~ 12 7 , 5 5 2 . 0 0 Dollars, which sum does include. Pennsylvania Sales Tax, and all local taxes as may be required. he Contract Sum shall be paid in the manner set forth in Article 6 hereof. ARTICLE S: SPECLAL CONTRACT CONDITIONS. In addition to the foregoing provisions the parties also agree to the Special Conditions on pages 2 and 3 of this document. THIS AGREEMENT entered into as of the day and year first written above. R ~B . ~~ , PMc~']~1~Paving By ~ By _-. ~ J~ Attest: ~ Attest: - / D-STATE 1 ~~ in~,t~ers,~Jr. , Ch~a~irman SPECIAL CONTRACT CONDITIONS ARTICLE 6. PAYA•IENTS. The Contractor shall pay the Subcontractor monthly progress payments upon written application on farms approved by Contractor, stating the estimated percentage of the Work in this Subcontract has been satisfactorily completed, which shall be submitted to the Contractor per the terms of "Exhibit C" Payment Procedures and Billing requirements. Payment is subject to the Contractor's withholding an amount reasonably necessary to fully protect and insure itself against any actual or potential liability or damage directly or indirectly relating to this Subcontract or the Subcontractor's breach or threatened breach of any other contract. The Contractor shall make payment to the Subcontractor of the por- tion of the Contract Sum attributable to the substantially completed Work, less permitted retainage and any portion of the funds for the Subcontractor's Work withheld in accordance with the Certificate to cover costs of items to be completed or corrected by the Subcontractor. The Contractor's withholding of money shall be inter- est free. Final payment shall be due when the Work described in this sub- contract is fully completed and performed in accordance with the Contract Documents and is satisfactory to the Architect andlor Owner. No payment, including final payment, shall be evidence of the performance of this Subcontract by the Subcontractor, either in whole or in part, and no payment shall be construed as acceptance of defective or incomplete work, and the Subcontractor shall remain liable for its performance being in strict compliance with the Subcontract and the Principal Contract. Notwithstanding anything to the contrary elsewhere in the Contract Documents, Subcontractor expressly acknowledges and agrees that payments to the Subcontractor shall become due only if final payment has been received by the Contractor. No payment for stored materials shall be made, unless prior written consent for such payment has been given by the Contractor after receipt of Subcontractor's written request therefor. ARTICLE 7. CHANGES IN THE WORK. The Contractor, at any time during the progress of this work, may make any additions to, alterations in, or deviations from, the drawings or specifications or revisions without invalidating this agreement. If such additions, alter- ations, or deviations shall result in the omission of any of the Work, then, in that event, the fair and reasonable value of the same as deter- mined by Architect shall be deducted from the amount herein agreed to be paid by Owner to the Subcontractor; provided, however, that no additional work shall be considered extra unless the same shall be done in pursuance of a written order signed by the Contractor. There shall be no other monetary or time allowance, direct or indirect, to the Subcontractor other than what is specifically written in the Change Order, including, but not limited to, delays, suspensions, escalation, impact or other cost factors. Change Orders are subject to the terms of these Articles and all other Contract Documents. Unless otherwise agreed, if Subcontractor per- forms extra work other than overtime work ordered by the Contr tor, it shall receive the act+~ual costs of labor and materials, plus ~ 90 for overhead, plus ,1 0% for profit, plus actual cost of applicable insurance and payroll. Should overtime work be ordered by the Contractor or Owner, due to no fault of the Subcontractor, payment will be made to the Subcontractor only for the actual premium por- tion of the labor cost of said overtime work, plus the taxes and insur- ances applicable only to the actual premium portion of the labor cost. Any extra or overtime work performed by others for the Subcontractor shall be paid for by the Subcontractor on the same basis as specified above. In the case of extra work, payment will be made ,to the Subcontractor for the cost of such extra work, plus ~ % to cover handling charges. In the case of overtime work,~ayment will be made to the Subcontractor for the exact cost of such overtime work performed by others. ARTICLE 8. NO ASSIGNMENT. The Subcontractor shall not assign this Subcontract without prior written consent of the Contractor, not subcontract the whole or a portion of this Subcontract without prior written notice to the Contractor. Any assignment or attempt to assign any monies due or which may become due to the Subcontractor hereunder shall be void and of na force or effect unless prior thereto the Subcontractor shall have obtained the written con- sent of the Contractor. ARTICLE 9. INSL''~RANCE. Before commencing the work. (1) The Subcontractor shall supply all applicable insurances as required by the specifications and conditions; and (2) the Subcontractor shall delivec certificates thereof to the Contractor which shall provide for thirty (30j days prior written notice of cancellation. Subcontractor shall name Contractor as an additional insured_ If the Subcontractor shall fail to deliver such certificates, the Contractor may obtain such insurance and charge the cost thereof to [he Subcontractor. If at any time during the term of this Subcontract and policy for the insurance coverage agreed to be provided hereunder by the Subcontractor shall expire or for any reason be cancelled, the Subcontractor agrees to promptly comply with the request of the Contractor to provide cover- age and upon Subcontractor's failure to so provide within five (S) days of the giving of notice thereof by the Contractor, then the Contractor may provide therefor and charge the cost to the Subcontractor. ARTICLE 10. LAWS, REGULATIONS, ETC. All work, labor, services and materials to be furnished, supplied or performed by the Subcontractor must strictly comply with all Federal, $[ate, Local, Municipal, as well as any and all other governing jurisdictions' and authorities' Laws, Rules, Regulations, Statutes, Ordinances, and Directives (hereinafter "Laws"). All work, labor, services or materi- als, in addition to that specifically required by this Contract, but nec- essary to fully comply with said Laws, will be furnished by the Subcontractor as part of this Contract and without any additional compensation. The Subcontractor shall secure and pay for all permits and governmental fees, licenses and inspections necessary for the proper execution and completion of the Subcontractor's Work, unless specifically stated otherwise in the Contract Documents. ARTICLE 11. MECHANICS' LIENS. The Subcontractor for itself, its subcontractors, suppliers, materialmen and employees, waives, releases and relinquishes all rights to file any Notice of Intent, Notice of Lien, Mechanics' Lien or any other encumbrance against the Contractor, Surety, Owner, Project, or any monies earned by the Contractor. The filing or effectuating of such encumbrance shall con- stitute amaterial breach of the Subcontract. In the event that such an encumbrance is filed, the Subcontractor will. within five (S) days after request by either [he Owner or Contractor and at Subcontractor's expense, have such lien or encumbrance discharged by payment, release, filing of a bond, or other method approved by Contractor. Subcontractor for itself and for anyone else acting under or through it hereby irrevocably authorizes and empowers any attorney of any court of competent jurisdiction to appear as attorney for it, them or any of them in any such court and, (1) in its or their name or names, mark satisfied of record at the cos[ and expense of Subcontractor or of them, any and all claims or liens; or (2) caused to be filed any pleading or instrument. The Subcontractor shall be responsible and liable for all damages and expenses, including bond premiums, attor- neys' fees, etc. to discharge and/or defend against same. The exis- tence of any encumbrance shall preclude the Sttbeontractor's right to receive payment until such encumbrance has been satisfied and removed. ARTICLE 12. WARRANTY. The Subcontractor, in addition to all other guarantees and warranties contained in this Subcontract and the Principal Contract and not in limitation of the Contractor's other legal rights, warrants and guarantees that its work is in strict and absolute accord with the Subcontract, and Principal Contract. ARTICLE 13. FIELD MEASURE1YlENTS. Any field measure- ments which must be taken to insure the proper and exact fit of any material which is furnished under this Subcontract will be the respon- sibility of the Subcontractor. OUR ]OB #02-353 RENOVATIONS & ADDITIONS ST. KATHERINE DREXEL CHURCH MECHANICSBURG, PA The Subcontractor/Vendor hereby covenants and agrees to perform in accordance with the Terms and conditions of the Principal Contract the following work as well as any and all other work incident or related thereto, including but not limited to, that work reasonably necessary for a complete and proper Project, or which is necessary to have a properly working and totally acceptable system and project. The Subcontractor/Vendor is reminded to familiarize itself with all relevant contract documents. SCOPE OR WORK: Furnish & install a{I necessary labor, material and equipment for the complete Sitework as per plans & specifications (see Exhibit E) to include but not limited to the following; 1. Site clearing & demolition. 2. Erasion control. 3. Silt fence & super silt fence. 4. Curlex matting. S. Temporary seeding. 6. Temporary piping for detention pone 7. Sanitary sewer excavation, piping & connections. 8. Cutting & patching of sidewalk. 9. Excavation & grading. 10, Backfill & compaction. 11. Place & grade stone for concrete. 12. Stabilized construction entrance. 13. Trenching & backfill for lighting & water line. 14. Under slab trenching. 15. Excavation for concrete light standards. 16. Removal of excess soi! from site. 17. Spread topsoil. 18. Piping for waterline. 19. Storm drainage system. 20. Temporary inlet protection. 21. Foundation drainage. 22. Storm drain piping. 23. Inlets & endwalls. 24. Paving. 25. Place & grade stone for paving. 26. Place BCBC & ID2 wearing. 27, Tack coat & seal. 28. Line painting & H/C symbols. 29. Saw cutting & patching. 30. All site signage. 31. Final seeding. Soil bearing tests, compaction tests and density test are excluded from this subcontractors scope of work. Subcontractor shail furnish a current certificate of insurance with the limits as per Exhibit D, naming Mid- State, Crabtree Rohrbaugh & Associates and St. Katherine Drexel Church as an additional insured prior to starting this work. All inquires concerning this project relating to Management, Scheduling, Correspondence, submittals, sample, etc. must be directed to Dan Wilson at 236-4321. Please forward al4 shop drawings, samples, catalog cuts, MSDS Sheets, and all other pertinent submittal data ASAP. "ARTICLE 9B" INSURANCE ** The minimum acceptable limit for General Liability shall be $1,000,000 each occurrence and $2,000,000 aggregate, and for Automobile shall be$1,000,000 Combined Single Limit. SPECIAL CONTRACT COND[T10NS ARTICLE 14. DELAYS. Extensions of time shall be Subcontrac- or's sole remedy for delay unless [he same shall have been caused by acts :onstituting intentional interference by the Contractor of Subcontractor's rerformance of the Work where and to the extent that such acts continue tfter Subcontractor's written notice to Contractor of such interference. Con- ractor's exercise of any of its rights under Article 7, Changes, regardless tf the extent or ntunber of such changes, or Contractor's exercise of any of is remedies of suspension of the Work, or requirement of correction ~r re-execution of any defective Work, shall not under any circumstances to construed as intentional interference with Subcontractor's performance tf the Work. ARTICLE 15. INDE2V[NIFICATION, The Subcontractor agrees that t shall. defend, indemnify, and save harmless the Contractor, Owner and the \rchitect, from and against any and ail claims, damages, losses and •xpenses (including but not limited to attorneys' fees and costs), demands, airs and causes of action (irrespective of whether such claims or actions are lased upon contract, tort, negligence, strict liability, or otherwise) arising >ut of, caused by, resulting from, or occurring in connection with the per- ormance of the V4'ork hereunder, or by or on account of any act or omis- ion of the Subcontractor, whether or not caused in whole or in part by tegligent, reckless or intentional acts or omissions of the Subcontractor, .nyone directly or indirectly employed by it, or anyone for whose acts it nay be liable, and regardless of whether or not such claim, damage, Ioss or :xpense is caused in patt by a party indemnified hereunder, and whether or tot such claim, damage, toss or expense be based in whole or in part upon he Contractor's, Owner's, Architect's or any other person's alleged negligence, recklessness, or strict liability, or upon any alleged breach of :ny statutory duty or obligation on [he part of the Contractor, Owner, Ar- :hitect or any other person, which claim, damage, loss or expense the Con- tactor or Owner may sustain by reason of: injury, damage or loss of use, o the work, tools or materials of any other subcontractor, or to the work, wilding, or structure or [o any adjoining building or structure, or to any .djeining work or property, whether of any subcontractor or any other per- on; any injury of any kind or nature whatsoever ('including disease or death •esulting therefrom) to all persons, whether employees of the Subcontrac- or or other workers or the public odherwise. The aforesaid indemnifica-lion tbligation shall not be limited by a limitation on amounts or types of la,mages, compensation or benefits payable by or for the Subcontractor under workers' compensation acts, disability benefits acts or other employee tenefits acts. The aforesaid indemnification obligations shall not be con- ttrued to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this aaragraph. The Subcontractor further shall indemnify and hold harmless the 7wner, Architect and the Contractor from any and all costs and fees, neiuding but not limited [o attorney's fees, incurred by the Owner, Ar- :hitec[ or Contractor in connection with establishing any of [he Owner's 4rchitect's or Contractor's rights and remedies under this Contract including gut not limited to the Owner's, Architect's and Contractor's rights of in- ieatnification under this paragraph. This Agreement shall be liberally con- strued in favor of the Subcontractor's obligations to defend, indemnify and save harmless the Owner, Architect and Contractor. ARTICLE 16. TERViINATION. Should the Subcontractor fail to perform in strict accordance with the Principal Contract, this Subcontract, where or as the Contractor may so direct, or should the Subcontractor become insolvent, unable to or fail to pay its obligations as they mature, ur, in any other respect, fail, in the opinion of the Contractor, to properly prosecute and perform any part of its work, fail to exert its best perfor- mance efforts, be involved in labor disputes, or be terminated under any other contract with the Contractor, [hen the Subcontractor may be deemed by the Contracwr to have materially breached [his Subcontract. In case of a breach, as indicated herein or as might otherwise be determined by law, then Uae Contractor may, a[ its discretion, terminate this Subcontract, or any part thereof, by giving written notice thereof to the Subcontractor. In the case of such termination, the Contactor may use any and all materials, equipment, fouls, or chattels furnished by or belonging to the Subcontrac- for either at or for the Project. The Subcontractor, on termination, will be deemed to have offered to the Contractor an assignment of all of its sub- contracts and purchase orders relating to this Projcet. The Contractor may, as its discretion, do whatever is necessary to assure performance of any terminated work, and to take such action, if necessary, in the Subcontract- tor's name. The Contractor may withhold from Subcontractor monies due or to become due under this or any other contract to offset the damages incurred or possibly incurred as a result of the breach. In case of a breach, the Subcontractor and its surety company shall be liable to the Contractor for any and all additional cost, expenses, attorneys' fees, and other damages, both liquidated and unliquidated, which directly or indirectly result from the Subcontractor's breach or threatened breach, ARTICLE 17. BONDS. If [he Subcontractor has been requested to furnish a Labor and ,1+taterials Bond and a Performance and Payment Bond as part of this Subcontract, the Subcontractor will furnish a letter from their bonding company indicating that bonds will be issued within five (5} work- ing days of being notif-led of the award of this Subcontract, and such bonds will be in place prior to the cotnmencemenl of work. Subcontractor's failure to meet these requirements may be deemed a material breach of this Sub•- contraet. The Subcontractor's officers and the signatory of this Subcon- tract accept full personal liability should bonds, for whatever reason, not be furnished. All bonds furnished on behalf of the Subcontractor shat] be issued by bonding companies listed in the Federal Register of Approved Sureties and shall be in a form satisfactory to the Contractor. ARTICLE 13. LEGAL FORUM. Any dispute as to the operation, fulfallment or meaning of this Subcontract ur the execution or breach thereoF, may be resolved either by arbitration or by action at taw, at [he sole option of the Contractor. If the Contractor shall determine, in its sole discretion, to resolve the dispute between the parties by arbitration, such should be in accordance with the then prevailing rules, regulations and procedures for arbitration as established and administered by the American Arbitra- tion Association and an award pursuant to such arbitration shall be final and binding on both panics. [f the Contractor shall determine, in its sole discretion, that an action at law shall be commenced, such action shall be brought in the Court of Common Pleas of Dauphin County, Pennsylvania. In either forum, Pennsylvania law shall be applied. ARTICLE 19. hIODIF1CATiON. This Subcontract shalt not be modified by any oral agreement, implied agreement or custom, and no waiver by the Contractor of these provisions shall be deemed to have been made unless in writing. ARTICLE 2t1. CLEANUP. The Subcontractor shall continuously maintain the Project free from all dirt, rubbish, debris, and any other waste materials. The Subcontractor shall be responsible fur the removal and disposal of all receptacles and containers into which same is deposited. On the completion of the various portions of the Work, the Subcontractor shaIl broom clean its work areas. The Subcontractor shall perform whatever ad- ditionai cleanup work is so directed, at oo additional cost, by the Contrac- tor's Field superintendent. ARTICLE 21. SAFETY. The Subcontractor shall be responsible w the Contractor for compliance with all laws, rules, regulations and orders, including without limitation, any issued under the Occupational Safety and Health Act of 1970, including any amendments or changes thereto, during Subcontractor's performance of the Work. Subcontractor shall abide by the regulations of the OSHA Hazard Communication Standard, Title 29, Code of Federal Regulation 1926.59, including without lintation, submitting to the Contractor its material safety data sheets for all hazardous materials this Subcontractor brings onto the site; keeping a current list of hazardous materials being used in the Subcontractor's Work: property Labeling all run- tamers for materials stored on site. Hazardous materials shall not be disposed of in dumpsters or waste containers provided by the Contractor or Owner. 'EXHIBIT G' . MID-STATE, INC. ~- ~ FAYMENT PROCEDURES Ah'D BII-LING P.vSTRUCTIONS EFFECTTYE 5/01 J92 PAYMENT TEIL'~iS - Any contract billing for serviws or materials will be paid on the 25th of the month, providing the invoice is cot7ect and it is receivcd in our office by the Last day of the previous month. Example: Invoices receivcd by 4/30/92 will be paid on 5/25/92. - Any material or subcontract invoices that are discountable, wiI1 be considered for payment within the discount terms. We will make every effort to take advantage of cash discounts. - Special payment teams may exist for certain projects. if so, these terms will be stated in the contract. BILLING REOUIIZEMENTS With cooperation from you, u~e c2n make sure that the above ieims are met. • a ~ r i 1 Please incorpora~c the followu,g guid.lines into }oar bi.ling pyactices as they.P - :. - . .: pertain. Failure to cotnpty may res..It ut the delay of 'our pa ment andJor th.. - ~. _ - return of your invoice. 1. Please mark all invoices with oux job and contract number, the location of the work, and a description of the work. 2. If you are billing under a connect, please make sure that the contract has been fully executed and returned to our office. Also, DO NOT send an invoice chat exceeds the current contract amount as revised by Mid-State. If you have performed extra work, submit a change order request and wait for our corresponding change order before invoicing. 3. Please provide sufficient back-up with any time znd material invoices. Time and material contracts CAT\'Ir'OT be billed as Iump sum. 4. Please do not bill us for work that is not completed. • "EXfIIB~T D" - Certificate of Insurance requirements for Saint Katharine Drexel Church Renovations and Addition I 1 / I sio2 I Commercial Comprehensive Contractors' General Liability including coverage for Products.'Completed Operations, Blanket Contractual, Protective and Professional Liability and Broad Form Property Damage. A Bodily Injury and Property Damager $1,000,000 per occurrence $2,000,000 aggregate B Products!Completed Operations C Contractually Assumed Liability for both Bodily In;ury and Property Damage D PersonaIlnjury $2,000,000 aggregate $1,000,000 per occurrence $1,000,D00 aggregate $2,000,000 aggregate II Automobile Liability covering all owned, non-owned and hired vehicles: Bodily Injury and Property Damage $1,000,000 combined single limit III Worker's Compensation As required by Federal Law, As required by State Law, and As required by Local law. Notes: • The contractor shall pay any deductible amount on all insurances. • A minimum of 30 days written notice of cancellation of insurance is required. • Mid-State, Crabtree, Rohrbaugh & Associates, and St. Katharine Drexel Church shall be named as additional insureds. Mid-State 638 Antoine Si. P.O. Box 1864 Hamsburo, PA 1 7 7 05-1 864 Ph 71 % 236-4321 Fax 717 236770 Mid-State 5t. Katharine Drexel Ghurch Drawings, 638 Antoine St. Specifications, and P.O.Box18b4 Renovations and Addition Addendums Harrisburg, PA 17105 Ph 717 236-4321 Fax 717 236-4770 Spe_cific_ation _Rev/Date __ ___ Title/Description iVotume 1 Project'9?25/02--------- Divisians0-I ------~-----~-----~----.`--_~-' :Manual I i Volume 2 ~ 9/24;02 ;Divisions 2-14 Geaeral Constrrction Technical iSpecifications ;Volume 3 9:24,'02 ~; Divisions 15-16 h4lPiE Construction ~ ~'I Technical ~ I Specificatians Addendum Number Date 1-_.._. October iQ, 2002 ------ --- ------------ _ _-- ----- ---- - i _.--- --------- ----- 2 October 16, 2002 '~ 3 October 16, 2002 ' ---- 4 --~ October 17, 2002 -', ----- ----- ---- - - Drawing Number _ R_ev/Date_ - ~ _____ Titie/Description ^ -~- ~ CS.1 r-- 9123/02 •---- Cover Sheet --- - -~. CS.2 9i23;OZ ----_ ____- CoverSheet Civil Drawings Drawing Number Rev/Date Title/Description r 1- _ - Rev E - 4/ 12102 _ ___ _ I, Cover Sheet -'-- ---- ! - 2 iRevC- 11/i4/01 Existing Boundary Survey Plan i 3 _ i Rev E - d/ 12!OZ _ _ 'Land Development Plan (Site) _4 'Rev E - 4/12:'02 I Land Development Plan (Grading and Utilities) -^ I J j 5 I Rev E -4.'12/02 i Soil Erosion & Sediment Control Plan ~ 6 ~; Rev A - 10/22.01 ___ _ ;Site Lighting Plan I-----~ 7 ~_ __.~ ! Rev E - 4/12/02 -_.~. .- ~ .-~_.___-____I I Plan & profile of S_torm_ Sewer - 8 _ _ _' Rev D - 12'5101 - -i ':.Misc. Details 9 RevC-11iI4;0i Misc.Details ~~ Architectural Drawings Drawing Number Rev/Date _- __^T_ - , Title/Deseription _ _ B1.1 ! 9123102 ~ ~_ ' BOCA 1993 Fire Plan B2. I r---- _-.__.~ ' 9/23%0? T_...--------- ' Labor 8 Industry Plan -----~------------------ ~ A1. ] ~ 9,23102 ---- _- _ _.._.--------------------j i Ground Floor Plans i i A1.2 !9123/02 jFirstFloorPlans A 1.3 __ _ - - 9 23%02 - Reflected ceiling plans -~: . _----- A1 4 9~~~f02 __ 'Finish Schedule and Larae Scale Plans A2.1 -- -- ' 9,"L3/02 - I Elevahons A2.2 9r23r02 'Elevations A3.1 ;9,2,02 -Wall Sections A3.2 ' 9123!02 ! W'a13 Sections A3.3 9:23/02 ~Va1lSections A4.4 9, 23102 _ _ __ _ __ 'Door and Frame Elevations, Door details A4.2 ~_ 9%23,`02 I Door Schedule and window elevations Page 1 of 2 Mid-Start 638 Antoine St. P.O. Box 1864 Harrisburg, PA 1710 Ph 7 17 236-4321 Fax 717 236-4770 St. Katharine Drexel Ghurch Renovations and Addition Plumbing Drawings Drawing Number Rev,~Date Titie/Description -_ _ _ T P1.1 .9;23102 _ ;Ground Floor Plumbino_Plan _ _ _ 'P1.2 _ ', 9123102 - _ Partial First Floor Plan; Large Scale Drawin; _ - -~-- Mechanical Drawings Drawing Number Rev/Date HO.I 9,'23102 - Hi.1 '.9!23102 H 1.2 ~. -- 9%23102 -- H2.1 9'23102 - 53.01 '.9x23!02 - J _ ~ Second Floor Roof Framing Plan ~ 54.01. _ ; 9:23!02 ~ Foundation Details - ~ - - --_- 54.02 ,- -- ' 9123%02 __ __ ________-_- ~ iFaundation Details 55.01 9'23102 ~ Ftamin~ Details ~'', 55.02 -- ____ ! 9123102 ___, _-.~_._.._. Framin Details ' -. --_ _ g --.._.._- --------- -- - i 55.03 9;23!02 - ------_-- -- -- ;TrvssDetails TitIe/Description (HVAC Schedules, Notes, Symbols, & Details ___ _ !Ground Floor Plan -HVAC `First Floor Plan -_HVAC_-----------~_-_ -v_--__ 'Ground Floor Plan -HVAC -Demolition Electrical Drawings Drawing Number __ Rev/Date ~__ _ T'itte/Description E0. I - '.9.23;0_2 _ i ~ Electrical Symbols, .Abbreviations, and Notes El.l --- I 19/23102 ~ __ ~Gmund Floor Plan -Lighting -A ----__-_ ~_ E1.2 9!23i02 IFitst Floor Plan -_Lightingo E2.1 ~ 4;23x02 _ _~ ~ ~ G_round Floor Plan -Power ~ ~ E22 ! 91'23!02 First Floor Plan -Power ! ' E3.1 j 9f23i'02 Ground Floor Pian -Special Systems j ~-- E3.2 l _ - 9!23!02 ___._ ------ _.._ I i First Floor Plan -Special Systems _ .~__ I E4. t 1.---- ; 9!23x02 - _ ___. ~__-- ':Site Plan .. E5.1 j 9%23102 _ __,- __ _ ',Electrical Schedules and Details DEI . i 9 3,''02 _T _,Ground Floor Plan -Demolition ~ j Structural Drawi Drawing Number ngs Rev/Date - Title/Description S0.01 ' 9!23; 02 _ _ ~ ~ General Notes _ ~I ~ 51.01 ;923102 ___ __ IFoundationPlan - 52.01 9; 231'02 :First Floor and Low Roof Framing Plan ____ Drawings, Specifications, and Addcndums Page 2 of 2 CHANGE ORDER 638 Antoine St/P O Box 1864 M~® ~~~~ Harrisburg, PA 17105 ~ 717-236-4321lFAX 236-4770 CONSTRUCTION AND MAINTENANCE SPECIALISTS 02-353-5-1 Mr. Brad McAllister B. C. McAllister Paving To: 5140 Erbs Bridge Rd. Mechanicsburg, PA 17055 Gentlemen: Change Order No. Oct. 24, 2003 Date Name of Jab and Location St. Katherine Drexel Church Peter Drive, Mechanicsburg, PA Renovations Wo propose to iurnfsh •tl mstsrisls end is perform sit Isbsr ososssary to aompl~ts the faltawin0: Original contract amount dated 12/13/02--------------------------------------$127,552.00 1. Add new yard drain $ 629.00 2. Add retaining wall at West of new addition $7,291.40 ADD - - $ 7,920.00 Revised contract amount ---------------------------- --$135,472.00 ------------------ Code: 40220 Excludes any asbestos or other hazardous material removal or abatement. AS ABOVE For the sum of:........ .............................. . ................... ........................................................................... Dollars (S I This Change Order is based on al! work being performed during regular working hours - 8:00 a.m. 4:30 p.m., Mondays thru Fridays. Extra charges will be made for all overtime work. This Change Order hereby incorporates by references, as though written in full herein the same terms and conditions as that inckuded in the original contract. 30 This Change Order is subject to acceptance within days #rom above date. Indicate acceptance by signing a copy and returning tD this office. This offer and its acceptance is with Lhe intent to be legally bound hereby. Date of Acceptance . .. . . ...... .. ....... .................... ..... Respectfully submitted ......... . Acceptance far . ~ . ]•!C"C+.1-art:? l ~l~ , ~~~ I(~l.*' -~ C , Winall, Inc. d.b.a. _. ....~ ...... ............ MidState ,/ ~' 8~~ ~I)---r~'i .(,.. ~h!,~ J . ... ........ .. ... ..... .... ..... .. By .~.~r/... ............... . CHANGE ORDER ~~ 638 Antoine St/P ~ Box 7 864 Q Harrisburg, PA 17105 MID-STI~"~' 717-236-4321IFAX 236-4770 CONSTRUCTION AND MAINTENANCE SPECIALISTS 02-353-5-2 Mr. Brad McAllister B. C. l~icAllister Paving ta: 5140 Erbs Bridge Rd. Mechanicsburg, PA 17055 Change Ordat• No. Nov. 19, 2003 Date Name of Jab and Location St. Katherine Drexel Church Peter Drive, I<•lechanicsburg, PA Renovations Gant[ere~en: Wr p~opeso fe furniah all matariola red to prrfe~nf alt lrbor' eoerasat+y to eeinpMta tho fotbwino: Revised contract amount dated l0/24/03------------------------ -----$135,472.00 Extra courtyard excavation-------------------------------------------$ 805.00 Courtyard work drain tie-ins, (2) planters, Architectural stone, excavation for concrete - - $7,228.00 Architectural stone for west retaining wall - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - g 240.00 Tie-in west drains to storm system --------------------------------------$1,134.00 Tie-in north drains to storm system--------------------------------------$1,534.00 ADD - - $ 1 U,941.00 Revised contract amount ---------------------_______°___________-________$14,413.00 Code: 40220 Excludes any asbestos or other hazardous material removal or abatement. ~ ~ +•~ .~ ~.. for the sum af:... AS ABOVE ................................... tv~--.e.:.`: ~' .a__.'.:.~:r.~......~ ...... ... . ............................................................................ Ool4ars[S This Change Order is based on all work being performed during regular working hours - 8:00 a.m. 4:30 p.m., Mondays thru Fridays. Extra Charges wild be made for alf overtime work. This Change Order hereby incorporates by references, as though written in full herein the same terms and conditions as that included in the original contrac[. This Change Order is subject to acceptance within30 days From above date. Indicate acceptance by signing a copy and returning W this office. This offer and its acce7pt/once is with the in[ent to be legally bound hereby. Oate of Acceptance . i ~. ~ L.3 !L~! 3 .. ....... .......... .. Re p ctf y ~m~tted .............. , ......... _ ......... . (1 ~••~ •. ..., s e ull s Acceptance ror ~ ' 61:ICALLI.S ~ ~~ 1 ~~j ~~- Winall, Inc. d.b_. . ... ~ .. ~ ....... ~~ C~ ........ .. Mid-State ; ]. ~ ,~ ..... ..... .... Y.. ... p s ~ :.; . s9 l ` ', ~ ; __ _ _ ~° ~ CHANGE ORDER 638 Antoine St/P O Box 1864 M~D QT~~~ Harrisburg, PA 17105 ~ 717-236-4321/FAX 236-4770 CONSTRUCTION AND MAINTENANCE SPECIALISTS 02-353-5-3 Changs Ordsr No. Mr. Brad McAllister May 14, 2004 B. C. 1V1cAllister Paving Date To: 5140 Erbs Bridge Rd. Name of Job and loeatioln Mechanicsburg, PA 17055 St. Katherine Drexel Church Peter Drive, NIechatzicsburg, PA Renovations Gentlemen: Ws ProPOSS W furnish ^fl moLOriNs and to psrfo~m ^Il loboe nsesowey W eomplsis drs fotlewiny: Revised contract amount datedll!19!03--------------------------------------$146,413.00 1. Excavate for new light pole. $ 500.00 2. Excavation for conduit from church to rectory. $1,300.00 ADD - - $ 2,100.00 Revised contract amount ________________________________________________$148,513.00 Code: 40220 s _= _ „:~ - Excludes any asbestos or other hazardous material removal or abatement. AS ABOVE For chfs sum ot:.. . ..................................... - ........................................................................... Ocllars [S ? This Change Order is based on all work being performed during regular working hours - 8:00 a.m. A:30 p.m., Mondays thru Fridays. Extra charges will be made for al[ overtime work. This Change Order hereby incorporates by references, as though written in full herein the same terms and conditions as that included in the original contract. 30 This Change Drder;s subject to acceptance within days from above date. Indicate acceptance by signing a copy and returning to this office. This offer and its ac1ceptance'~}is with the intent co be legally bound hereby. pate of AecepUnca . ~1. ~ ~~ ~ ( R pec[f ub fed ............. .. es idly s mic ................... __ Acceptance (or3 . ~ . ~.L.. ~~~~ 1 ~ ~ ~ 'L~Q11i , T ~~ Winall, inc. d.b.a. ..... ~ :...~~-ice ... ... Mid-State ~ 1 ~.~ ~~~i` ,-1 . 7777 .I- ..............BY. ~ crlAluoE ORDER • 638 Antoine St/P O Box 1864 MID ~~~~ Harrisburg, P/~ 17105 ~ 717-236-4321IFAX 236-4770 CONSTRUCTION AND MAlNTENAl1lCE SPEClAl.lSTS Mr. $rad McAllister B. C. McAllister Paving Tc: S 140 Erbs Bridge Rd. Mechanicsburg, PA 17055 02-353-5-4 ChanSa ©rder No. Aug. 14, 2004 Data Hama of Job and Location St. Katherine Drexel Church Peter Drive, Mechanicsburg, PA Renovations ~'isntlsman: Ws propose to lurnlsh all n+sarials and to paAa~m a115abo~ *+assaaey to complete the }olbwinp: Revised contractarnountdated05/14/03--------------------------------------$148,513.00 Additional retaining wall ADD - - $ 2,513.00 Revised contract amount ----------------------------------- ------X151,026.00 Excludes any asbestos or other hazardous material removal or abatement. ~S ABOVE 1`or the sum of:....` ...................................................... . ................................. ...................................... . ............................. . ...... Dollars it l This Cfiange Order is based on all work being performed during regular working hours - B:00 a.m. 4:30 p.m., Mondays thru Fridays. Extra charges will be made for all overtime work. This Change Order hereby incorporates by references, as though written in full herein the same terms and conditiens as that included in the original contract. 30 This Change Order is subject to acceptance within days from above date. Indicate acceptance by signing a copy and returning to this office. This offer and its acceptance is with the intent to be legally beund hereby Dace of Accep~a~ce . r?~ ~~' .~ ~-!..~W T . .. Respectfully suhmit[ed Acceptance fvr ~~.. ~'~ ~~'1"~ - -' ~~~; ~~ Winall, Inc. d.b.a. ....... ..... ................. Mid-State ........................ Y /~' F .`~ MID-8TATE CHANGE ORDER 638 Antoine St1P O Box 1864 Harrisburg, PA 171 d5 717-236-43211FAX 236-4770 CONSTRUCTION AND MAINTENANCE SPECIALISTS 02-353-5-5 Chanss Order No. Mx. Brad McAllister July 15, 2005 B. C. McAllister Paving Data To: 5140 Erbs Bridge Rd. Name of Jab and location Mechanicsburg, PA 17055 St. Katherine Drexel Church Peter Drive, Mechanicsburg, PA Renovations Gentlemen: W~ propoN to f urni~ •li matsnals •nd to preform all Mbo~ noeaawey to eomplota thn fo~fowinQ: Revised contract amount dated 08114/04--------------------------------------$151,026.00 B. C. McAllister subcontract agreement scope of work for seeding Around detention pond completed by Mid-State. DEDUCT - - ($ 500.00) Revised contract amount ------------------------------------------------$150,526.00 Code: 40220 Excludes any asbestos or other hazardous material removal or abatement. AS ABOVE For the sum of: ............................................................................... ........................................................................... Dollars [S l This Change Order is based on all work being performed during regular working hours - 8-00 a m. 4:30 p.m., Mondays thru Fridays. Extrs charges will be made for all overtime work. This Change Order hereby incorporates by references, as though written in full herein the same terms and conditions as that included in the original contract. 30 This Change Order is subject to acceptance within days from above date. indicate acceptance by signing a copy and returning to this office. This offer and its acceptance is with the intent to be legally bound hereby. Oate or Acceptance . ........ ......... ................... RespectfuNy subm~cted .......... ..... ................... . Winall, Inc. d.b.a. AcceDwnce for ................................. ............ Mld-State Bv ...........................................................Bv........ Page 1 of 1 Brenner, Thomas E. From: Steve Shadle [sshadle@midstate-winall.com] Sent: Thursday, September 16, 2010 11:43 AM To: Brenner, Thomas E. Cc: 'Mike Neiswender' Subject: Penn National Insurance Vs B C McAllister Paving (Your file no. 64000-1228) Attachments: ST KATHERINE MCALLISTER SUB AGRMT.pdf Dear Mr. Brenner, I have attached a copy of the subcontract agreement between Winall Inc. d/b/a Mid-State and B C McAllister Paving per your request. I have included all the attachments to the subcontract as well as the executed change orders to the original subcontract. If you have any questions or need any additional information please contact our office at your convenience. Please confirm receipt to the email and attachment. Thank you. Steve Shadle www.midstate-winall.com 638 Antoine Street, Harrisburg, PA 17110 PH: (717) 236-4321 FX: (717) 236-4770 CELL: (717) 576-6974 Construction Services From The People Committed to Quality Intearity and Safety • General Construction Design Build Specialty Construction • Maintenance & Repair Work Emergency Services Carpentry & Concrete • Custom In-House Mill Shop Construction & Project Mgmt. Painting & Waflcoverings 9/17/2010 Johnson, q uffe, Stewart 8~ Weidner By: Jeffrey', B. Rettig I.D. No. 19 16 301 Marke Street P. O. Box 1 9 Lemoyne, ennsylvania 17043-0109 (717) 761- 540 jbr@jdsw.c m PENN CASUAL WINALL I NATIONAL MUTUAL ' INSURANCE CO., a/s/o C., d/b/a MIDSTATE, Plaintiffs NO. 2010-4930 CIVIL ACTION -LAW v. BRAD MC LLISTER, individually and B.C. MCA ISTER PAVING, Defendants JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As ~~ prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.2, Defendants, hereby certify that: (1) ~ A Notice Of Intent To Serve A Subpoena on Crabtree, Rohrbaugh and Associates Architects and B.S.&T. Labs, with a copies of the subpoenas attached thereto, were mailed or delivered to each party at least twenty (20) days prior to the date on wh~i~ch the subpoenas were sought to be served; (2) ~ A copy of the Notice Of Intent, including the proposed subpoenas, is attached tc~~this Certificate; (3) (4) ~ No objection to the subpoenas have been received; and The subpoenas to be served are identical to the subpoena attached to the Attorneys for Defendants m m c~ '?a tJ)f~ N ~'rac:7 ~~ -~_c' ~ c a ~ r :s .~ _ar~ -~ r.~ =rte _` ets :•, IN THE COURT OF COMMON PLEAS O F CUMBERLAND COUNTY, PENN A. Notice Of I Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: ry B. Rettig, E re orney I.D. No. 1 6 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants Date: ,dO ~' ~(~ .~ Johnson, Duffle, Stewart & Weidner By: Jeffrey B. Rettig I.D. No. 19Q16 301 Market Street P. O. Box 1 9 Lemoyne, ennsylvania 17043-0109 (717) 761-4~~40 jbr@jdsw.c m PENN CASUALTY WINALL IN Attorneys for Defendants NATIONAL MUTUAL IN THE COURT OF COMMON PLEAS OF INSURANCE CO., a/s/o CUMBERLAND COUNTY, PENNA. ;., d/b/a MIDSTATE, Plaintiffs NO. 2010-4930 CIVIL ACTION -LAW v. BRAD MC LLISTER, individually and B.C. MCAL ISTER PAVING, Defendants JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: PO E Harri PL ones attac file of recc made, the as Brenner, Esquire x 1268 burg, PA 17108 SE TAKE NOTICE that Defendants intend to serve subpoenas identical to the to this notice. You have twenty (20) days from the date listed below in which to and serve upon the undersigned an objection to the subpoena. If no objection is poenas may be served. JOHNSON, DUF T T 8~ WEIDNER By: Andrew P. Dollman, Esquire Jeffrey B. Rettig, Esquire Attorney I.D. No. 19616 301 Market Street; P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants DATE: V ~ ' PENN NAl INSURANC d/b/a MIDS- COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ONAL MUTUAL CASUALTY CO., a/s/o WINALL INC., ATE, Plaintiffs NO. 2010-4930 CIVIL ACTION -LAW v. BRAD MCA MCALLISTE LISTER, individually and B.C. t PAVING, Defendants JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. fates Arch (Name of Person or Entity) Withi twenty (20) days after service of this subpoena, you are ordered by the court to produce the following ocuments or things: Conies of anv and all minutes of construction meetings held for at You ay deliver or mail legible copies of the documents or produce things requested by this subpoena, to ether with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the hings sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its servi ,the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPO NA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: ADDRESS: TELEPHONE SUPREME C URT ID #: ATTORNEY R: Jeffrey B. Rettig, Esquire 301 Market Street Lemoyne, PA 17043 717-761-4540 19616 Defendants BY THE COURT: Prothonotary/Clerk, Civil Division Deputy DATE: Seal f the Court (Eff. 7197) COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND PENN NAT~~ONAL MUTUAL CASUALTY IN THE COURT OF COMMON PLEAS OF INSURANC CO., a/s/o WINALL INC., CUMBERLAND COUNTY, PENNA. d/b/a MIDST' TE, NO. 2010-4930 Plaintiffs CIVIL ACTION -LAW v. JURY TRIAL DEMANDED BRAD MCA LISTER, individually and B.C. MCALLIST PAVING, Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 To: B.S. T Labs. Inc.. PO Box 15360. Harrisburg, PA 17105 (Name of Person or Entity) Withi twenty (20) days after service of this subpoena, you are ordered by the court to produce the following ocuments or things: Copies of any and all correspondence, communications, including e- ails between B.S.8~T Labs. Inc.. and representatives of Mid-State regarding the ~d b B.S.BT C Dies of at Joh You ay deliver or mail legible copies of the documents or produce things requested by this subpoena, to ether with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing th things sought. If yo fail to produce the documents or things required by this subpoena within twenty (20) days after its servi ,the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: ADDRESS: TELEPHON SUPREME C ATTORNEY Jeffrey B. Rettio. Esquire 301 Market Street Lemoyne, PA 17043 717-761-4540 RT I D #: 19616 t: Defendants BY THE COURT: Prothonotary/Clerk, Civil Division Deputy DATE: ~' Seal pf the Court (Eff. 7/97) • ~ CERTIFICATE OF SERVICE I HE~tEBY CERTIFY that a true and correct copy of the foregoing document has been duly served'i~pon all counsel of record and parties of interest by placing the same in the United States Mail, class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Thomas Brenner, Esquire PO Box 1268 Harrisburg, PA 17108 Date: JOHNSON, DUF IE, STEWART & WEIDNER ~ By: Andrew. P. Dollman, Esquire 416074 CERTIFICATE OF SERVICE CERTIFY that a true and correct copy of the foregoing document has been duly served I,~apon all counsel of record and parties of interest by placing the same in the United States Mail, class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Thomas Brenner, Esquire PO Box 1268 Harrisburg, PA 17108 JOHNS.~1, DUFFIE, ST T & WEIDNER ~ ~ `~ ` v Janine Schwalm, Paralegal to Jeffrey B. Rettig, Esquire 418517 y ~ Thomas E. Brenner, Esquire ID #32085 Jennifer L. Ruth, Esquire ID #93960 PO Box 1268 Harrisburg, PA 17108-1268 (717)234-4161 Attorneys for Plainti, fJ' )' zofQ ocr 27 P~ ~: ^U~4BERL~PiU CQU~#r'i' °~E+~BSY~,~~;~~~~-i PENN NATIONAL MUTUAL IN THE COURT OF COMMON PLEAS CASUALTY INSURANCE CO. :CUMBERLAND COUNTY, a/s/o WINALL INC. d/b/a MIDSTATE, N0.2010-4930 Plaintiff v. BRAD MCALLISTER, individually and B.C. MCALLISTER PAVING Defendants CIVIL ACTION -LAW JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANTS' NEW MATTER 36. Denied. The contract document indentified the sub-contractor as B.C. McAllister Paving. 37. Denied. The Paragraph states a legal conclusion to which no response is necessary. By way of further response, the issues raised involve more than the interpretation of the contract. The location of Defendant and the site of the work (Cumberland County), make this Court an appropriate forum. 38. Denied. The Paragraph states a legal conclusion to which no response is necessary. 39. Admitted. 40. Denied in part. Testing obligations before installing fill rested with McAllister. 196484.1 41. Admitted with clarification. The testing that McAllister was to perform would have detected whether the soil and fill was too wet for the project. The testing referenced in this paragraph did not address the moisture content of the fill and soil. 42. Denied. The obligation to assure the soil to be used involved pre-installation tests to be performed by McAllister. 43-48. Denied. These Paragraphs state legal conclusions to which no response is necessary. 49. Denied. Count III is brought against McAllister and Count IV is brought against the B.C. McAllister Paving entity. WHEREFORE, Plaintiff requests that Defendants' New Matter be dismissed with prejudice. Respectfully submitted, GOLDBERG KATZMAN, P.C. BY: mas E. Brenner, Esquire ID #32085 Jennifer L. Ruth, Esquire ID #93960 320 Market Street, PO Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff Date: ~ 0 I Z.S) ~ o 196484.1 i VERIFICATION I, ~o ~,,,,, ~~ ~, an authorized representative of PENN NATIONAL MUTUAL CASUALTY INSURANCE, COMPANY, hereby acknowledge that I have read the foregoing PLAINTIFFS' REPLY TO DEFENDANTS' NEW MATTER, and that the facts stated therein aze true and correct to the best of my knowledge, information and belief. I understand that any false statements herein aze made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. PENN NATIONAL INSURANCE ~.,..` ~ By: Date: __ ~.kd..._ ~ i , 2010 197250.1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served on this date a true and correct copy of the foregoing document upon all counsel of record by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Jeffrey B. Rettig, Esquire JOHNSON DUFFIE STEWART & WEIDNER 301 Market Street, PO Box 109 Lemoyne, PA 17043 GOLDBERG KATZMAN, P.C. BY: ~~y~~ d - ~~<< a ~f Malinda A. Elliott, Pa.C.P., Paralegal 320 Market Street, PO Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff Dated: ~ o~~/~ ~ 196484.1 t Johnson, Duffe, Stewart & Weidner By: Jeffrey B. Rettig I.D. No. 19616 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com PENN NATIONAL MUTUAL CASUALTY INSURANCE CO., a/s/o WINALL INC., d/b/a MIDSTATE, Plaintiffs v. BRAD MCALLISTER, individually and B.C. MCALLISTER PAVING, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. NO. 2010-4930 CIVIL ACTION -LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoena for documents and things pursuant to Rule 4009.22, Defendants hereby certifies that: 1) Plaintiffs' Attorney, Thomas Brenner, Esquire, has waived the 20-day objection period for the notice of intent to subpoena; 2) A copy of the Notice of Intent, including the proposed subpoenas, are attached to this certificate; and 3) The subpoenas to be served are identical to the subpoena attached to the Notice ~~' ~:~ ~.. of Intent. "~ `~"' °-' Respectfully submitted, .~e^- ©~" ~.= ~~ JOHNSON, DUFFIE, STEWART & WEIDNER `~1 ~,;r `~ ~ ' Ea i-j By: ~~ ~ ~ c., ,~F, Jeffe ettig, Esquire c ° ~~ Attorney I.D. No. 19616 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Date: /Q/Z ~~~j Attorneys for Defendants Johnson, Dufi•ie, Stewart 8~ Weidner By: Jeffrey B. Rettig I.D. No. 19616 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com Attorneys for Defendants PENN NATIONAL MUTUAL CASUALTY INSURANCE CO., a/s/o WINALL INC., d/b/a MIDSTATE, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. NO. 2010-4930 CIVIL ACTION -LAW v. JURY TRIAL DEMANDED BRAD MCALLISTER, individually and B.C. MCALLISTER PAVING, Defendants NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Thomas Brenner, Esquire PO Box 1268 Harrisburg, PA 17108 PLEASE TAKE NOTICE that Defendants intend to serve subpoenas identical to the ones 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 an objection to the subpoena. If no objection is made, the subpoenas may be served. N, DUFFIE, STEWART & WEIDNER DATE: J ffr . Ret Esquire C tto . D. .19616 301 a et Street; P.O. -Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND PENN NATIONAL MUTUAL CASUALTY INSURANCE CO., a/s/o WINALL INC., d/b/a MIDSTATE, Plaintiffs v. BRAD MCALLISTER, individually and B.C. MCALLISTER PAVING, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. NO. 2010-4930 CIVIL ACTION -LAW JURY TRIAL DEMANDED Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Remington, Vernick & Beach Engineers (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Copies of anv and all documents pertaining to or referring to the underpinning of footers at the St. Katherine Drexel Church construction project on or about 2003. at Johnson. Duffle, Stewart & Weidner, 301 Market Street, P.O. Box 109, Lemoyne, PA 17043. 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 above. 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 it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Jeffrey B. Rettig, Esquire ADDRESS: 301 Market Street Lemoyne, PA 17043 TELEPHONE: 717-761+4_540 SUPREME COURT ID #: 19616 ATTORNEY FOR: Defendants BY THE COURT: • f' ~ ~y~X Pfothonotary/Clerk, Civil Division Deputy -DATE: 30 /o Seal of t e COUrt (Eff. 7/97j COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND PENN NATIONAL INSURANCE CO., d/b/a MIDSTATE, v. MUTUAL CASUALTY IN THE COURT OF COMMON PLEAS OF a/s/o WINALL INC., CUMBERLAND COUNTY, PENNA. Plaintiffs CIVIL ACTION -LAW BRAD MCALLISTER, individually and B.C. MCALLISTER PAVING, Defendants JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: SMB&R Structural Engineers (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Copies of any and all documents aertaining to or referring to the underpinning of footers at the St. Katherine Drexel Church construction aroiect on or about 2003 at Johnson, Duffle, Stewart & Weidner, 301 Market Street P.O Box 109 Lemoyne PA 17043. 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 above. 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 it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Jeffrey B. Rettig, Esquire ADDRESS: 301 Market Street Lemoyne, PA 17043 TELEPHONE: 717-761-4540 SUPREME COURT ID #: 19616 ATTORNEY FOR: Defendants NO. 2010-4930 BY THE COURT: S ~~~.~ Prot onotary/Clerk, Civil Division eputy DATE: _ 3D a Seal oft e Court ~Eff. ~is~~ 7 • , i y CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document has been duly served upon. all counsel of record and parties of interest by placing the same in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Thomas Brenner, Esquire PO Box 1268 Harrisburg, PA 17108 Date: /D~`~~U JOHNSON, UFFIE, ~'fiNART & WEIDNER By: ~_ - Janine Schwalm, Paralegal to Jeffrey B. Rettig, Esquire 418789 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document has been duly served upon all counsel of record and parties of interest by placing the same in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Thomas Brenner, Esquire PO Box 1268 Harrisburg, PA 17108 Date: ~~~ ~~ JOHNSO , DUFFIE, ~TfVVR~RT & WEIDNER By: Janine Schwalm, Paralegal to Jeffrey B. Rettig, Esquire 419542 F!Lr*n-;f 77* ^.-. Goldberg Katzman, P.C. T1 E 1'1 Eta Thomas E. Brenner, Esquire ID #32085 rtn! r n/^ a '4 S. Baker Kensinger, Esquire ID #208305 CUMSERL ND f-?;" PO Box 1268 L"'..1 vi _61 " Harrisburg, PA 17108-1268 (717) 234-4161 Attorneyfor Plaintiff PENN NATIONAL MUTUAL IN THE COURT OF COMMON PLEAS CASUALTY INSURANCE CO., a/s/o CUMBERLAND COUNTY, PENNSYLVANIA WINALL INC., d/b/a MIDSTATE, Plaintiffs NO. 2010-4930 V. CIVIL ACTION-LAW BRAD MCALLISTER, individually and B.C. MCALLISTER PAVING, Defendants JURY TRIAL DEMANDED MOTION FOR SUMMARY JUDGMENT AND NOW, comes Plaintiffs, Penn National Mutual Casualty Insurance Co. a/s/o Winall Inc. d/b/a Mid-State, by and through their attorneys, Goldberg Katzman, P.C, who file this Motion for Summary Judgment pursuant to Rule 1035.2, Pennsylvania Rules of Civil Procedure and in support thereof aver as follows: 1. Procedural History Plaintiffs initiated this action by filing a Complaint on or about July 27, 2010. 2. In the Complaint Plaintiffs alleged breach of contract and negligence on the part of the Defendants. 3. Defendants filed an Answer with New Matter on or about September 22, 2010. 4. Plaintiffs filed a Response to New Matter on or about October 27, 2010. Discovery has been completed including the exchange of written discovery and deposition of party representatives as well as others with knowledge of the factual circumstances at issue and this matter is ripe for summary judgment. 00564370A I) II. Factual History 6. Paragraphs 1-5 are incorporated by reference as if fully set forth herein. 7. Plaintiffs contracted with Defendants to provide excavation services for a building project at the Saint Katherine Drexel Church in Mechanicsburg, Pennsylvania, in December 2002. 8. A copy of said Contract is attached hereto as Exhibit "A". 9. Pursuant to paragraph 3.15 (A): Place backfill and fill materials in layers not more than 8 inches in loose depth for material compacted by heavy compaction equipment, and not more than 4 inches in loose depth for material compacted by hand-operated tampers. See Exhibit "A". 10. Defendant Bradley McAllister admitted that: a. He was not aware of the eight inch contractual requirement. See selected pages of the Deposition Transcript of Bradley McAllister, at 36:2-7, attached hereto as Exhibit "B"; b. It was possible that more than eight inches of fill were used per layer prior to compacting (McAllister Dep. Tr., 36:8-11); and c. That he did not task any employee with deciding how much loose fill should be compacted. (McAllister Dep. Tr., 37:8-12). 11. In fact, Mr. McAllister admitted that he is not even sure whether any measuring device or equipment was utilized gauge the depth of the loose fill. (McAllister Dep. Tr., 37:13- 17). 12. To the contrary, and in direct breach of paragraph 3.15 (A) above, Defendant's employee, Gary Gingrich, testified that even when utilizing a "hand wacker," "we normally put {00564370;v l } eight inches of lift in.... pretty much guesstimate it." See selected pages of the Deposition Transcript of Gary Gingrich, at 16:7-17:2, attached hereto as Exhibit "C". 13. Thus, Defendants' employees admitted to utilizing twice the amount of the contracted amount of loose fill/backfill when the material was being compacted by hand- operated tampers. 14. Defendants admitted to working after hours on the project and not testing the compacted layers before installing additional layers of dirt. See selected pages of the Deposition Transcript of Bradley McAllister, at 17:25-19:10, attached hereto as Exhibit "B" and selected pages of the Deposition Transcript of Gary Gingrich, at 15:9-24, attached hereto as Exhibit "C". 15. In October 2006, soil settlement occurred in an area where excavation, grading, backfill and soil compaction had been performed by Defendants resulting in damages to the building. 16. A damage claim was presented to Penn National as the insurer for Winall, Inc., the general contractor, which has been paid in the amount of $86,902.53. III. Questions Presented A. Whether Plaintiffs are entitled to Summary Judgment as to Counts I and II of the Complaint where Defendants have admitted that they breached their contractual duties? Suggested Answer: Yes. IV. Lesal Argument 17. Paragraphs 1-13 are incorporated by reference as if fully set herein. 18. Pursuant to Pa.R.C.P. No. 1035.2, summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to summary judgment as a matter of law. (00564370;vl) 19. The purpose of summary judgment is to avoid unnecessary trials and to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality. See Curran v. Children's Serv. Ctr., 396 Pa. Super. 29, 33, 578 A.2d 8, 9 (1990). 20. Where the non-moving party fails to introduce evidence, or introduces insufficient evidence to establish the existence of an element essential to his case, on which he bears the burden of proof, the moving party is entitled to judgment as a matter of law. Ertel v. Patriot News Co., 544 Pa. 93, 100-02, 674 A.2d 1038, 1042 (1996), cert. denied 519 U.S. 1008 (1996). 21. In the instant case, by Defendant Bradley McAllister's own admission, and by the admission of his employees, Defendants breached paragraph 3.15 (A) of the Contract. WHEREFORE, Plaintiffs respectfully request that this Honorable Court Grant their Motion for Summary Judgment as to Counts I and II of the Complaint. Respectfully submitted, GOLDBERG KATZMAN, P.C. BY: (::: : Thomas E. Brenner, Esquire ID #32085 S. Baker Kensinger, Esquire ID #208305 320 Market Street, PO Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff Date: 7/)"/It 00564370:v I } I Ic Ak c 0 MID-STATE Mid-State, 638 Antoine Street, P.O. Box 1864 Harrisburg, PA 17105-1864 • (717) 236-4321 FAX 236-4770 SUBCUNTRACT AGREEMENT AGREEMENT NO: 02-353-5 PHASE CODE: 40220 PHASE DESCRIPTION: th AGREEMENT made as of the 13 day of Dec. 2002 between the Contractor: MID-STATE, and B. C. McAllister Paving 5140 Erbs Bridge Rd., Mechanicsburg, PA 17055 The Subcontractor: Attn: Brad McAllister 730-7808 Fax: 761-4447 Renovations & Addition The Project: 1 Peter Drive, Mechanicsburg, PA 17055 Roman Catholic Diocese of Harrisburg The Owner: Union Deposit Rd., Harrisburg, PA The Architect: Crabtree Rohrbaugh & Associates The Contractor and Subcontractor agree as set forth below, intending to be legally bound hereby: ARTICLE i. THE CONTRACT DOCUMENTS. The Contract Documents for this Subcontract consist of this agreement and any Exhibits attached hereto, dated December 5, 2002 , (the "Principal Contract") the Conditions of the Contract between the Owner and Contractor (General, Supplementary and other Conditions), the Drawings, the Specifications, all Addenda issued prior to and all Modifications issued after execution of the agreement between the Owner and Contractor and agreed upon by the parties to this Subcontract. The Principle Contract, less financial information, can be reviewed by the Subcontractor at the Contractor's principal place of business during normal business hours. The Contract Documents include those documents identified on Exhibit A hereto and are incorporated herein by reference as though set forth at length. In the event of any conflict between the provisions of the Subcontract and any other Contract Document, the provisions of this Subcontract shall govern. ARTICLE 2. THE WORK. The Subcontractor hereby covenants and agrees to perform in accordance with the terms and conditions of the Principal Contract, to the approval and acceptance without condition of the Owner and the Contractor, that portion of the work of the Principal Contract as set forth in Exhibit B. All work covered by this Subcontract shall be performed in a skillful and workmanlike manner with material, equipment, etc. being both new and of the best lind and grade for the purpose intended. ARTICLE 3: TIME OF COMMENCEMENT AND SUBSTANTIAL COMPLETION. The subcontractor shall commerce and complete work and deliveries of materials at the times required by the Contractor, TMIE BEING OF THE ESSENCE of this Subcontract. ARTICLE 4: THE CONTRACT SUM. The Contractor shall pay the Subcontractor in current funds for the per- formance of the work, subject to additions and deductions by Change Order, the total sum of One Hundred Twenty Seven Thousand Five Hundred Fifty Two & 00/100 - 127,552.00 Dollars, which sum does include. Pennsylvania Sales Tax, and all local taxes as may be required. A e Contract Sum shall be paid in the manner set forth in Article 6 hereof. ARTICLE 5: SPECIAL CONTRACT CONDITIONS. In addition to the foregoing provisions the parties also agree to the Special Conditions on pages 2 and 3 of this document. THIS AGREEMENT entered into as of the y and year first written above. SUB9ONTRAC` R B• M ii Paving -STATE By ?- EXHIBIT /inters, Jr., Chairman Attest: ???"? SPECIAL CONTRACT CONDITIONS ARTICLE 6. PAYMENTS. The Contractor shall pay the Subcontractor monthly progress payments upon written application on forms approved by Contractor, stating the estimated percentage of the Work in this Subcontract has been satisfactorily completed, which shall be submitted to the Contractor per the terms of "Exhibit C" Payment Procedures and Billing requirements. Payment is subject to the Contractor's withholding an amount reasonably necessary to fully protect and insure itself against any actual or potential liability or damage directly or indirectly relating to this Subcontract or the Subcontractor's breach or threatened breach of any other contract. The Contractor shall make payment to the Subcontractor of the por- tion of the Contract Sum attributable to the substantially completed Work, less permitted retainage and any portion of the funds for the Subcontractor's Work withheld in accordance with the Certificate to cover costs of items to be completed or corrected by the Subcontractor. The Contractor's withholding of money shall be inter- est free. Final payment shall be due when the Work described in this sub- contract is fully completed and performed in accordance with the Contract Documents and is satisfactory to the Architect and/or Owner. No payment, including final payment, shall be evidence of the performance of this Subcontract by the Subcontractor, either in whole or in part, and no payment shall be construed as acceptance of defective or incomplete work, and the Subcontractor shall remain liable for its performance being in strict compliance with the Subcontract and the Principal Contract. Notwithstanding anything to the contrary elsewhere in the Contract Documents, Subcontractor expressly acknowledges and agrees that payments to the Subcontractor shall become due only if final payment has been received by the Contractor- No payment for stored materials shall be made, unless prior written consent for such payment has been given by the Contractor after receipt of Subcontractor's written request therefor. ARTICLE 7. CHANGES IN THE WORK. The Contractor, at any time during the progress of this work, may make any additions to, alterations in, or deviations from, the drawings or specifications or revisions without invalidating this agreement. If such additions, alter- ations, or deviations shall result in the omission of any of the Work, then, in that event, the fair and reasonable value of the same as deter- mined by Architect shall be deducted from the amount herein agreed to be paid by Owner to the Subcontractor; provided, however, that no additional work shall be considered extra unless the same shall be done in pursuance of a written order signed by the Contractor. There shall be no other monetary or time allowance, direct or indirect, to the Subcontractor other than what is specifically written in the Change Order, including, but not limited to, delays, suspensions, escalation, impact or other cost factors. Change Orders are subject to the terms of these Articles and all other Contract Documents. Unless otherwise agreed, if Subcontractor per- forms extra work other than overtime work ordered by the Con tor, it shall receive the actual costs of labor and materials, plus % for overhead, plus y7 sic for profit, plus actual cost of applicable insurance and payroll. Should overtime work be ordered by the Contractor or Owner, due to no fault of the Subcontractor, payment will be made to the Subcontractor only for the actual premium por- tion of the labor cost of said overtime work, plus the taxes and insur- ances applicable only to the actual premium portion of the labor cost. Any extra or overtime work performed by others for the Subcontractor shall be paid for by the Subcontractor on the same basis as specified above. In the case of extra work, payment will be made-to the Subcontractor for the cost of such extra work, plus f % to cover handling charges. In the case of overtime work, ayment will be made to the Subcontractor for the exact cost of such overtime work performed by others. ARTICLES. NO ASSIGNMENT. The Subcontractor shall not assign this Subcontract without prior written consent of the Contractor, not subcontract the whole or a portion of this Subcontract without prior written notice to the Contractor. Any assignment or attempt to assign any monies due or which may become due to the Subcontractor hereunder shall be void and of no force or effect unless prior thereto the Subcontractor shall have obtained the written con- sent of the Contractor services and materials to be furnished, supplied or performed by the Subcontractor must strictly comply with all Federal, State, Local, Municipal, as well as any and all other governing jurisdictions' and authorities' Laws, Rules, Regulations, Statutes, Ordinances, and Directives (hereinafter "Laws"). All work, labor, services or materi- als, in addition to that specifically required by this Contract, but nec- essary to fully comply with said Laws, will be furnished by the Subcontractor as part of this Contract and without any additional compensation. The Subcontractor shall secure and pay for all permits and governmental fees, licenses and inspections necessary for the proper execution and completion of the Subcontractor's Work, unless specifically stated otherwise in the Contract Documents. ARTICLE 11. MECHANICS' LIENS. The Subcontractor for itself, its subcontractors, suppliers, materialmen and employees, waives, releases and relinquishes all rights to file any Notice of Intent, Notice of Lien, Mechanics' Lien or any other encumbrance against the Contractor, Surety, Owner, Project, or any monies earned by the Contractor. The filing or effectuating of such encumbrance shall con- stitute a material breach of the Subcontract. In the event that such an encumbrance is fled, the Subcontractor will, within five (5) days after request by either the Owner or Contractor and at Subcontractor's expense, have such lien or encumbrance discharged by payment, release, filing of a bond, or other method approved by Contractor. Subcontractor for itself and for anyone else acting under or through it hereby irrevocably authorizes and empowers any attorney of any court of competent jurisdiction to appear as attorney for it, them or any of them in any such court and, (1) in its or their name or names, mark satisfied of record at the cost and expense of Subcontractor or of them, any and all claims or liens; or (2) caused to be filed any pleading or instrument. The Subcontractor shall be responsible and liable for all damages and expenses, including bond premiums, attor- neys' fees, etc. to discharge and/or defend against same. The exis- tence of any encumbrance shall preclude the Subcontractor's right to receive payment until such encumbrance has been satisfied and removed. ARTICLE 12. WARRANTY. The Subcontractor, in addition to all other guarantees and warranties contained in this Subcontract and the Principal Contract and not in limitation of the Contractor's other legal rights, warrants and guarantees that its work is in strict and absolute accord with the Subcontract, and Principal Contract. ARTICLE 13. FIELD MEASUREMENTS. Any field measure- ments which must be taken to insure the proper and exact fit of any material which is furnished under this Subcontract will be the respon- sibility of the Subcontractor. SPECIAL CONTRACT CONDITIONS ARTICLE 14. DELAYS. Extensions of time shall be Subcontrac- or's sole remedy for delay unless the same shall have been caused by acts onstituting intentional interference by the Contractor of Subcontractor's erformance of the Work where and to the extent that such acts continue fter Subcontractor's written notice to Contractor of such interference. Con- ractor's exercise of any of its rights under Article 7, Changes, regardless if the extent or number of such changes, or Contractor's exercise of any of s remedies of suspension of the Work, or requirement of correction ?r re-execution of any defective Work, shall not under any circumstances ?e construed as intentional interference with Subcontractor's performance ,f the Work. ARTICLE 16. TERMINATION. Should the Subcontractor fail to perform in strict accordance with the Principal Contract, this Subcontract, where or as the Contractor may so direct, or should the Subcontractor become insolvent, unable to or fail to pay its obligations as they mature, or, in any other respect, fail, in the opinion of the Contractor, to properly prosecute and perform any part of its work, fail to exert its best perfor- mance efforts, be involved in labor disputes, or be terminated under any other contract with the Contractor, then the Subcontractor may be deemed by the Contractor to have materially breached this Subcontract. In case of a breach, as indicated herein or as might otherwise be determined by law, then the Contractor may, at its discretion, terminate this Subcontract, or any part thereof, by giving written notice thereof to the Subcontractor. In the case of such termination, the Contractor may use any and all materials, equipment, tools, or chattels furnished by or belonging to the Subcontrac- tor either at or for the Project. The Subcontractor, on termination, will be deemed to have offered to the Contractor an assignment of all of its sub- contracts and purchase orders relating to this Project. The Contractor may, as its discretion, do whatever is necessary to assure performance of any terminated work, and to take such action, if necessary, in the Subcontract- tor's name. The Contractor may withhold from Subcontractor monies due or to become due under this or any other contract to offset the damages incurred or possibly incurred as a result of the breach. In case of a breach, the Subcontractor and its surety company shall be liable to the Contractor for any and all additional cost, expenses, attorneys' fees, and other damages, both liquidated and unliquidated, which directly or indirectly result from the Subcontractor's breach or threatened breach. ARTICLE 17. BONDS. If the Subcontractor has been requested to furnish a labor and Materials Bond and a Performance and Payment Bond as part of this Subcontract, the Subcontractor will furnish a letter from their bonding company indicating that bonds will be issued within five (5) work- ing days of being notified of the award of this Subcontract, and such bonds will be in place prior to the commencement of work. Subcontractor's failure to meet these requirements may be deemed a material breach of this Sub- contract. The Subcontractor's officers and the signatory of this Subcon- tract accept full personal liability should bonds, for whatever reason, not be furnished. All honds furnished on behalf of the Subcontractor shall be issued by bonding companies listed in the Federal Register of Approved Sureties and shall be in a form satisfactory to the Contractor- ARTICLE 13. LEGAL FORUM- Any dispute as to the operation, fulfillment or meaning of this Subcontract or the execution or breach thereof, may be resolved either by arbitration or by action at law, at the sole option of the Contractor. If the Contractor shall determine, in its sole discretion, to resolve the dispute between the parties by arbitration, such should be in accordance with the then prevailing rules, regulations and procedures for arbitration as established and administered by the American Arbitra- tion Association and an award pursuant to such arbitration shall be final and binding on both parties. If the Contractor shall determine, in its sole discretion, that an action at law shall be commenced, such action shall be brought in the Court of Common Pleas of Dauphin County, Pennsylvania. In either forum, Pennsylvania law shall be applied. ARTICLE 19. MODIFICATION. This Subcontract shall not be. modified by any oral agreement, implied agreement or custom, and no waiver by the Contractor of these provisions shall be deemed to have been made unless in writing. ARTICLE 24. CLEANUP. The Subcontractor shall continuously maintain the Project free from all dirt, rubbish, debris, and any other waste materials. The Subcontractor shall be responsible for the removal and disposal of all receptacles and containers into which same is deposited. On the completion of the various portions of the Work, the Subcontractor shall broom clean its work areas. The Subcontractor shall perform whatever ad- ditional cleanup work is so directed, at no additional cost, by the Contrac- tor's field superintendent. ARTICLE 21. SAFETY. The Subcontractor shall be responsible to the Contractor for compliance with all taws, rules, regulations and orders, including without limitation, any issued under the Occupational Safety and Health Act of 1970, including any amendments or changes thereto, during Subcontractor's performance of the Work. Subcontractor shall abide by the regulations of the OSHA Hazard Communication Standard, Title 29, Code of Federal Regulation 1926.59, including without limitation, submitting to the Contractor its material safety data sheets for all hazardous materials this Subcontractor brings onto the site; keeping a current list of hazardous materials being used in the Subcontractor's Work: properly labeling all con- tainers for materials stored on site. Hazardous materials shall not be disposed of in dumpsters or waste containers provided by the Contractor or Owner. OUR JOB #02-353 RENOVATIONS & ADDITIONS ST. KATHERINE DREXEL CHURCH MECHANICSBURG, PA The Subcontractor/Vendor hereby covenants and agrees to perform in accordance with the Terms and conditions of the Principal Contract the following work as well as any and all other work incident or related thereto, including but not limited to, that work reasonably necessary for a complete and proper Project, or which is necessary to have a properly working and totally acceptable system and project. The Subcontractor/Vendor is reminded to familiarize itself with all relevant contract documents. SCOPE OR WORK: Furnish & install all necessary labor, material and equipment for the complete Sitework as per plans & specifications (see Exhibit E) to include but not limited to the following: 1. Site clearing & demolition. 2. Erosion control. 3. Silt fence & super silt fence. 4. Curlex matting. 5. Temporary seeding. 6. Temporary piping for detention pone 7. Sanitary sewer excavation, piping & connections. WCuttin & atchin of sidewalk. or concrete. . 11. Place & grade stone 12. Stabilized construction entrance. 13. Trenching & backfill for lighting & water line. 14. Under slab trenching. 15. Excavation for concrete light standards. 16. Removal of excess soil from site. 17. Spread topsoil. 18. Piping for waterline. e y Ir W.Rn Wenwa 24. Paving. 25. Place & grade stone for paving. 26. Place BCBC & ID2 wearing. 27. Tack coat & seal. 28. Line painting & H/C symbols. 29. Saw cutting & patching. 30. All site signage. 31. Final seeding. Soil bearing tests, compaction tests and density test are excluded from this subcontractors scope of work. Subcontractor shall furnish a current certificate of insurance with the limits as per Exhibit D, naming Mid- State, Crabtree Rohrbaugh & Associates and St. Katherine Drexel Church as an additional insured prior to starting this work. All inquires concerning this project relating to Management, Scheduling, Correspondence, submittals, sample, etc. must be directed to Dan Wilson at 236-4321. Please forward all shop drawings, samples, catalog cuts, MSDS Sheets, and all other pertinent submittal data ASAP. ".ARTICLE 9S" NSURANCE ** The minimum acceptable limit for General Liability shall be $1,000,000 each occurrence and $2,000,000 aggregate, and for Automobile shall be$1,000,000 Combined Single Limit. 'EX M[T C' MID-STATE, INC. - PAYMENT PROCEDURES AhTD BILLING INSTRUCTIONS EFFECTIVE 5/01/92 PAYMENT TERMS Any contract billing for servi-ces or materials will be paid on the 25th of the month, providing the invoice is correct and it is received in our office by the Last day of the previous month. Example: Invoices received by 4130/92 will be paid on 5/25/92- - Any material or subcontract invoices that are discountable, will be considered for payment within the discount teats. We will make every effort to take 2dvantage of cash discounts. - Special payment terms may exist for cet'?ain projects. If so, these terms will be stated in the contract. BILLING RE 1 EMENTS With cooperation from you, we can make sure that the above terms are met. Please incorporate the following guidelines into your billing practices as they - -7. pertain. Failure to comply may result in the delay of your payment and/or the - return of your invoice. 1. Please mark all invoices with our job and contract number, the location of the work, and a description of the work. 2. If you are billing under a cootiact, please make sure that the contract has been fuUy executed and returned to our office. Also, DO NOT send an invoice that exceeds the current contract amount as revised by Mid-State. If you hsve performed extra work, submit a change order request and wait for our corresponding change order before invoicing. 3. Please provide sufficient back-up with any time and material invoices. Time and material contracts CANNOT be billed as lump sum. 4. Please do not bill us for work that is not completed. "EXHIBIT D" Certificate of Insurance requirements for Saint Katharine Drexel Church Renovations and Addition 11/18/02 I Commercial Comprehensive Contractors' General Liability including coverage for Products/Completed Operations, Blanket Contractual, Protective and Professional Liability and Broad Form Property Damage. A Bodily Injury and Property Damager S 1,000,000 per occurrence $2,000,000 aggregate B Products/Completed Operations C Contractually Assumed Liability for both Bodily Injury and Property Damage D Personal Injury $2,000,000 aggregate $1;000,000 per occurrence $2,000;000 aggregate $2,000,000 aggregate II Automobile Liability covering all owned, non-owned and hired vehicles: Bodily Injury and Property Damage $1000,000 combined single limit III Worker's Compensation As required by Federal Law, As required by State Law, and As required by Local law. Notes: • The contractor shall pay any deductible amount on all insurances. • A minimum of 30 days written notice of cancellation of insurance is required. Mid-State, Crabtree, Rohrbaugh & Associates, and St. Katharine Drexel Church shall be named as additional insureds. Mid-State 638 Antoine St. P.O. Box 1864 Haaisbu _ PA 17105-1864 Pb 71-1, 236-4321 Fax 717 2364770 Mid-.State 632 Antoine Si- P.O. Box 1864 Harrisburg, PA 17105 Ph 717 236-4321 Fax 717 236-4770 "F'XFTTRTT Ev. 5t. Katharine Drexel Church Renovations and Addition Specification Rev/Date - Title/Description ,Volume 1 Project '9i25/02 1 Divisions 0-1 !Manual __ _ __-__ -- ---, --------_ ' Volume 2 - ! 9/24.'02 ! Divisions 2-14 General Construction ;Technical Specifications -- Volume 3 -19!24/02 Divisions 15-16 M/P/E Construction Technical ! I Specifications Addendum Number Date 1 October 10, 2002 2 October 16, 2002 3 October 16, 2002 -- 4 October 17, 2002 -- Drawing _ Number Rev/Date Title/Description CS.1 9;23,02 Cover Sheet i C&2 '9,,23/02 Cover Sheet Civil Drawings Drawing Number Rev/Date Title/Descrir 1 ' Rev E -4/12/02 - ;Cover Sheet 2 !Rev C- 11/14/01 IExisting Boundary Survey Plan 3 :Rev E - 4/12/02 ;/.and Development Plan (Site) 4 ;Rey E - 4111102 1 land Development Plan (Grading and 5 1 Rev E - 4;12'02_1 Soil Erosion & Sediment Control Plan 6 i Rev A - 10,22!01 `, Site Lighting Plan 7 ' Rev E - 4/12/02 _ Plan & profile of Storm Sewer 8 ;Rev D- 12/5/01 Misc. Details 9 Rev C - ] 1114;01 !Misc. Details Architectural Drawings Drawing Number Rev/Date - TitlelDescription - B 1.1 9123±02 BOCA 1993 Fire Plan --- 62.1 19/2-33/02 -- 'Labor & Industry Plan - ---------- AL I 19,,23i02 - - ; Ground Floor Plans -^- --- --- - Ai.2 9(23102 First Floor Plans _ - A1.3 9123('02 Reflected ceiling plans A1.4 19/23/02 Finish Schedule and Large Scale Flans A2.1 ;9123;02 Elevations A2.2 9(23102 'Elevations - - -A 3_ I -- 9.'23102 Wall Sections A3.2 19123/02 !Wall Sections A3.3 - - ' 9123/02 - - ;Mall Sections --- - - ---- ---- A4.1 ^ - 723102 ! Door and Frame Elevations, Door details A42 9.123/02 ; Door Schedule and window elevations Drawings, Specifications, and Addendums Page 1 of 2 Mid-:Statt 638 Antoine St. P.O. Box 1864 Harrisburg, PA 17105 Ph 717 236-4321 Fax 717 236-477 St. Katharine Drexel Church Renovations and Addition Plumbing Drawings Drawing Number Rev/Date Title/Description P1.1 _J 9.23/02 _ :Ground Floor Plumbing Plan P 1.2 ~9.?3102 Partial First Floor Plan; Large Scale Drawing _ Mccharical Drawings Drawing Number RevlDate Title/Description HO.1 923/02 'HVAC Schedules, Notes, Symbols, & Details HI.1 !9!23;02 !Ground Floor Plan - HVAC -- H 1.2 9:23:02 s First Floor Plan - HVAC IU.1 9.%23102 •. Ground Floor Plan - HVAC - Demolition Electrical Drawings Drawing Number Rev./Date E0.1 9123102 ELI 923102 T E1.2 9i2 3:D2 E2.1 _ 9!23!02 1 E2.2 _ ' 9,23/02 E3.1 19/23102 E3.2 19;23,'02 E4.1 _ 923,'02 F.S.I ;9123;02 DEL I 19J2102 Ground Floor Plan - Lighting First Floor Plan -_Lighting _ _Ground Floor Plan - Power First Floor Plan - Power Ground Floor Plan - Special Sys First Floor Plan - Special Systen Site Plan Electrical Schedules and Details Ground Floor Plan - Demolition and Notes Structural Drawing Drawing Number Rev/Date Title/Description _ r 50.01 921'02 _ General Notes S1.01 9,23102 Foundation Plan S2.01 9123:02 First Floor and Low Roof Framing Plan 53.01 9!23102 Second Floor Roof Framing Plan 54.01 ? ;9.%23'02 {Foundation Details - S4.02 - ' 9x23`02 'Foundation Details - - - j 55-01 9123%02 ;Framing Details 55.02 - _ ° 9123102 --- ? Framing Details --- ---+---..- -- -- 55.03 92.i102 Truss Details Drawings, Specifications, and Addendums Page 2 of 2 R CHQi11GE ORDE 638 Antoine St/P 0 Box 1864 Harrisburg, PA 17105 MID-STATen. - -` 717-236-43211FAX 236-4770 CONSTRUCTION AND MAINTENANCE SPECIALISTS 02-353-5-1 Mr. Brad McAllister B. C. McAllister Paving To: 5140 Erbs Bridge Rd. Mechanicsburg, PA 17055 Change Order No. Oct. 24, 2003 Date Name of Job and Location St. Katherine Drexel Church Peter Drive, Mechanicsburg, PA Renovations Gentlemen: We propose to furnish all materials and to perform Oil labor ee000sarif to Complats the following: Original contract amount dated 12/13/02-------------------------------------- $127,552.00 1. Add new yard drain. $ 629.00 2. Add retaining wall at West of new addition $7,291.00 ADD - - $ 7,920.00 Revised contract amount ------------------------------------------------$135,472.00 Code: 40220 Excludes any asbestos or other hazardous material removal or abatement. AS ABOVE For the sum of:. .....................................................................::.................... . .... .............................................................. Dollars (S 3 This Change Order is based on all work being performed during regular working hours - 8:00 a.m. 4:30 p.m., Mondays thru Fridays. Extra charges will be made for all overtime work. This Change Order hereby incorporates by references. as though written in full herein the same terms and conditions as that included in the original contract. 30 This Change Order is subject to acceptance within days from above date. Indicate acceptance by signing a copy and returning to this office. This offer and its acceptance is with the intent to be legally bound hereby. Date of Acceptance .... ....... Respectfully submitted .................................. . AAr ?t t t, tfvt*" T C , Kiidall, Inc. d.b.a i Acceptance for ... ` [ .. ... .. ... Kid-State 5 .V..ft ................................BV.... ..t?.... ................ CHANGE ORDER 9 S 638 Antoine St/P O Box 1864 Harrisburg, PA 17105 MI a /'©-STATE 717-236-4321 /FAX 236-4770 CONSTRUCTION AND MAINTENANCE SPECIALISTS 02-353-5-2 Change Order No. Mr. Brad McAllister Nov. 19, 2003 B. C. McAllister Paving note To: 5140 Erbs Bridge Rd. Name of Job and Location Mechanicsburg, PA 17055 St. Katherine Drexel Church Peter Drive, Mechanicsburg, PA Renovations Gentleman: We propose to furnisk all materials and to perform ell labor sooeasery to aomploto the following: Revised contract amount dated 10/24/03 --.------------------------------------$135,472.00 Extra courtyard excavation ------------------------------------------- $ 805.00 Courtyard work drain tie-ins, (2) planters, Architectural stone, excavation for concrete - - $7,228.00 Architectural stone for west retaining wail - - - - - - - - - - - - - - - - - - - - - - - - - - - - - • - - - $ 240.00 Tie-in west drains to storm system --------------------------------------$1,134.00 Tie-in north drains to storm system -------------------------------------- $1,534.00 ADD - - $ 10,941.00 Revised contract amount --------------------------- .--------------------Sl,f,413.00 Code: 40220 Excludes any asbestos or other hazardous material removal or abatement. t J? AS ABOVE - - ?^ For the sum of: .............................................. I ............. ........... ............... - } ................................. ........... Dollars IS This Change Order is based on all work being performed during regular working hours - 8:00 a.m. 4:30 p.m.. Mondays thru Fridays. Extra charges will be made for all overtime work. This Change Order hereby incorporates by references, as though written in full herein the same terms and conditions as that included in the original contract. 34 This Change Order is subject to acceptance within days from above date. Indicate acceptance by signing a copy and returning to this office. This offer and its acceptance is with the intent to be legally bound hereby. Date of Acceptance . i ? Ls l .......... .n ................ I ....... Respectfully submitted .................................. . CAIL+ S 1lr? 1 I? i (T 'fit Winat Inc. d.b.a. Acceptance for ........................k%l r ........... MidState; I- r?7 By By C, CHANGE LARDER Ail 638 Antoine St/P 0 Box 1864 Harrisburg, PA 17105 M10-STATE 717-236-4321/FAX 236-4770 CONSTRUCTION AND MAINTENANCE SPECIALISTS 02-353-5-3 Change Order No. Mr. Brad McAllister May 14, 2004 B. C. McAllister Paving Date To: 5140 Erbs Bridge Rd. Name of Job and Location Mechanicsburg, PA 17055 St. Katherine Drexel Church Peter Drive, Mechanicsburg, PA Renovations Gentlemen: We propose to furnish an materials and to perform all insor necessary to complete the follawiailf: Revised contract amount dated 11/19/03 -------------------- ------------------$146,413.00 1. Excavate for new light pole. $ 800.00 2. Excavation for conduit from church to rectory. $1,300.00 ADD - - $ 2,100.00 Revised contract amount ------------------------------------------------$148,513.00 Excludes any asbestos or other hazardous material removal or abatement. AS ABOVE For the auras of_ ..................... ........................................................................... Dollars (S This Change Order is based on all work being performed during regular working hours - 8:00 a.m. 4:30 p.m., Mondays thru Fridays. Extra charges will be made for all overtime work. This Change Order hereby incorporates by references, as though written in full herein the same terms and conditions as that included in the original contract. 30 This Change Order is subject to acceptance within days from above date. Indicate acceptance by signing a copy and returning to this office. This offer and its acceptance is with the intent to be legally bound hereby /j7, Date of Acceptance .. ..... " . ................... Respectftity submitted Q? ? ?.L?J I 1 , . s" , Winaf, Inc. d.b.a. Acceptance lorj ........... ?.... 1 Q?It . Mid-State By J??J- Y 1? ............ By ' CHANGE ORDER 638 Antoine St/P O Box 1864 Harrisburg, PA 17105 MIMSTATE 717-236-4321 /FAX 236-4770 CONSTRUCTION AND MAINTENANCE SPECIALISTS Mr. Brad McAllister B. C. McAllister Paving To: 5140 Erbs Bridge Rd. Mechanicsburg, PA 17055 02-353-5-4 Change Order No. Aug. 14, 2004 Date Name of Job and Location St. Katherine Drexel Church Peter Drive, Mechanicsburg, PA Renovations Gentlemen: We propose to furnish eg metaris Is and to perform all labor eecesoary to complete the following: Revised contract amount dated 05/14/03------------------------------ -----$148,513.00 Additional retaining wall ADD - - $ 2,513.00 Revised contract amount ------------------------------------------------5151,026.00 r Excludes any asbestos or other hazardous material removal or abatement. AS ABOVE For the sum of: ....................................................... ............ .......... ............ ) . .................... Dollars M This Change Order is based on all work being performed during regular working hours - 8:00 a.m. 4:30 p.m., Mondays thru F=ridays. Extra charges will be made for all overtime work. This Change Order hereby incorporates by references, as though written in full herein the same terms and conditions as that included in the original contract. 30 This Change Order is subject to acceptance within days from above date. Indicate acceptance by signing a copy and returning to this office. This offer and its ac?}c?je??ppt?aan(cce its with the intent to be legally bound hereby. Dare of Acceptance . - : / "?. r. .Ir '2oo f ....................... RasPeccftily submitted .......... . 1 9 winall, Inc. d.b.a. Acceptance for .... ......... QRL ...... . Mid-State BY 'Z ..................... 9X .... ?.? .. ......... ... .................. /J CHANGE ORDER 0 638 Antoine St/P 0 Box 1864 Harrisburg, PA 17105 MID-ST'AT'E 717-236.4321/FAX 236-4770 CONSTRUCTION AND MAINTENANCE SPECIALISTS 02-353-5-5 Mr. Brad McAllister B. C. McAllister Paving To: 5140 Erbs Bridge Rd. Mechanicsburg, PA 17055 Change Order No. July 15, 2005 Data Name of Job and Location St. Katherine Drexel Church Peter Drive, Mechanicsburg, PA Renovations Gentlemen: We propose to furnish ell materials sad to perform all labor naessaarV to complete the following: Revisedcontract amount dated 08/14/04-------------------------------------- $151,026.00 B. C. McAllister subcontract agreement scope of work for seeding Around detention pond completed by Mid-State. DEDUCT - - ($ 500.00) Revised contract amount ------------------------------------------------$150,526.00 Code: 40220 Excludes any asbestos or other hazardous material removal or abatement. AS ABOVE ................... . . . . . . . . . . . . For the sure of. .................................................. . . . . . . . . . . . .... Doilars (S This Change Order is based on all work being performed during regular working hours -- 8:00 a.m. 4:30 p.m., Mondays thru Fridays. Extra charges will be made for all overtime work. This Change Order hereby incorporates by references, as though written in full herein the same terms and conditions as that included in the original contract. 30 This Change Order is subject to acceptance within days from above date. Indicate acceptance by signing a copy and returning to this office. This offer and its acceptance is with the intent to be legally bound hereby. Date of Acceptance .. . ................................... Respectfuly subm cted ............. ..................... . Winati, Inc. d.b.a. to Acceptance for .. .................. ............ Mid- By .............. .By.................................... ........ ?x ?? 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ------------------------------- X PENN NATIONAL MUTUAL CASUALTY INSURANCE COMPANY a/s/o WINALL, INC. d/b/a MIDSTATE, Plaintiffs,: -vs- . BRAD MCALLISTER, individually and as B.C. MCALLISTER PAVING, Defendants.: ------------------------------- X NO. 2010-4930 Civil Action - Law Deposition Testimony of BRADLEY MCALLISTER 301 Market Street Lemoyne, PA February 8, 2011 1:50 P.M. IT IS HEREBY STIPULATED and agreed that the sealing of the within transcript is waived; IT IS FURTHER STIPULATED and agreed that all objections except as to the form of the question are reserved to the time of trial. ERSA REPORTING 30 South 17th Street United Plaza, Suite 1520 Philadelphia, PA 19103 (215) 564-1233 Fax (215) 564-1225 EXHIBIT BRADLEY MCALLISTER 14 1 been rummaging through things and trying to find -- I do 1 2 not have many records at all to tell you the truth. 2 3 Q. Do you have some records that relate back to the 3 4 work done -- 4 5 A. Absolutely, yeah, I have some. 5 6 Q. Do you know what a proctor is? 6 7 A. I do. 7 8 Q. Did you secure a proctor with regard to the 8 9 soil that was to be used for backfilling purposes at 9 10 St. Katharine's? 10 11 A. No. 11 12 Q. Some questions were asked earlier about testing 12 13 that was to be done by Mid-State and what would be 13 14 responsibilities of McAllister. 14 15 Did you discuss, when you entered into this 15 16 contract, what testing would be performed by your company 16 17 and what testing would be performed by Mid-State? 17 18 A. No. 18 19 Q. Are you aware that for excavation and 19 20 backfilling purposes that a proctor needed to be done? 20 21 A. Yes. 21 22 Q. Did you have any discussions with anyone with 22 23 Mid-State as to who would undertake to perform a proctor? 23 24 A. Who they would hire or -- 24 25 Q. Whether you would do it or Mid-State or some 25 15 1 designee of Mid-State would do it? 1 2 A. No, I just didn't have any discussions with 2 3 anyone. 3 4 Q. Did you obtain a copy of the proctor that Mid- 4 5 State did have done to evaluate whether the soil would be 5 6 proper for backfill purposes? 6 7 A. No. 7 8 Q. Are you aware that if the soil did not meet 8 9 appropriate standards that you would be required to bring 9 to in off-site soil to backfill? 10 11 A. Yeah, absolutely. 11 12 Q. Did you bring any off-site soil in for backfill 12 13 purposes at St. Katharine's? 13 14 A. Never. 14 15 Q. If you were to need off-site soil, would that 15 16 soil have to be tested before it could be used on a site 16 17 like St. Katharine's? 17 18 A. Absolutely. 18 19 Q. A proctor test? 19 20 A. A proctor test. 20 21 Q. Let's do it this way, have you ever had jobs 21 22 where you needed more fill than was available on a site? 22 23 A. Absolutely. 23 24 Q. And in those instances, have you had to seek 24 25 fill or obtain fill from another location? 25 16 A. I have. Q. And in doing so, would that soil from another site be submitted or be tested by proctor before it could be used on a particular project? A. Yes. Q. And if that proctor was done, would you provide a copy of that analysis to the general contractor, whoever was running the project, that you were seeking to bring the fill to? A. Yes. Q. Was it your understanding under this contract that if you had to use fill beyond that available on site, that you would have to have it tested and submit a report for approval by the general contractor? A. Yes. Q. In terms of the testing during the backfilling work, it's my understanding that BS&T was called to the site to test density, compaction and soil bearing during the installation of the backfill, is that correct? A. That is correct. Q. Was there an understanding that McAllister had as to how often that would occur? A. I don't understand. Q. A better question. It's my understanding that a certain amount of loose dirt is put in, compacted to 17 complete each stage of the backfill process; that a fair description? A. Yeah. Q. How much dirt is put in before compaction occurs? A. It can be -- it varies -- but it can be anywhere from a three-inch up to a twelve-inch lift. Q. Were there requirements in the documents for this project as to how large the lifts were to be? A. I'm sure. Q. Do you recall what that was? A. I do not. Q. I think I've got that document, I'll find it here in a moment. Was there any discussion with Mike Radel as to how often the backfill would be tested; that is, after each lift, after every two lifts, or was there any discussion along those lines? A. As far as the lifts are concerned, no. Q. Was there any discussion recognizing you put in so many inches of material and then compact it, that when you moved up another foot or foot and a half, we'll do a test at that time? A. No. Q. Did you provide Mike information that if you did 5 (Pages 14 to 17) ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES BRADLEY MCALLISTER 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work after the end of his business day, that when he would get there the next day you'd say to him, we put "X" feet of fill in between the time you left yesterday and when we finished last evening? A. No, that was fairly a visual thing. Q. I understand. But sometimes people provide reports as to what was done. Was there any reporting to Mike to say, we put like two and a half feet of fill in between three yesterday and eight last night when we left the site? A. No. Q. Were there any discussions with Mike or anyone else from Mid-State about the testing of the backfill that was being put in after he left for the day? A. Were there any discussions with Mike? Could you repeat the question? Q. Sure. Were there any discussions with Mike about the testing of the backfill work that was done after he left for the day? A. No. Q. Were there any arrangements made with BS&T or any other testing entity to test your work that was done after Mike had left for the day? MR. RETTIG: By him? MR. BRENNER: Yes. 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. That I don't -- I wouldn't know. MR. RETTIG: He meant by you. Did you make any arrangements? A. No, I didn't make any arrangements. Q. Did you say to Mike or anyone from Mid-State, we're going to be working into the evening, we hope to get "X" number of lifts in and compacted, would it make sense to have somebody here like seven o'clock at night to test what we've done up to that point? A. No. Q. Any discussions about testing the work that you were doing after three o'clock into the evening hours with Mike or anyone else? A. Well, the only discussions that Mike and I had were I could only backfill to a certain level. Mike would only let me backfill to a certain level because of the waterproofing that was going on the side of the building. There was a specification from the manufacturer that we had to let glue dry for a 24-hour period or whatever in order for it to hold warranty. So I was only allowed to backfill to a certain level. Q. So if you came in there at 3:30 on Wednesday, you could only go so far in terms of the backfilling from whenever you started until it was too dark to work 20 1 anymore? 2 A. I could only go as far as the waterproofing 3 would allow me to is basically -- 4 Q. What is the maximum amount of fill that you 5 recall installing in that time after three o'clock on any 6 particular day? 7 MR. RETTIG: In terms of lift? 8 MR. BRENNER: Yes. 9 A. I can't really give you a definite answer 10 there. As you come up, the hole gets wider and wider and 11 wider so I can't really say for sure. 12 Q. Do you know if you installed three or four 13 lifts in a particular session? 14 A. Yeah. I would say three lifts. 15 Q. How much time -- and I appreciate that it 16 gets wider as you go up farther -- but was there an 17 average amount of time to move the soil from the pile 18 into the hole, level it and then compact it before a 19 lift was finished? 20 A. Well, there was plenty of time to compact it 21 because the -- most of the fill was -- had to be 22 brought in by a skid loader because of the way the 23 building was designed and because of the way we cut 24 it. 25 So we could not get -- you couldn't take a dump 21 1 truck in there and dump a whole dump truck load. No, it 2 was brought in bucket by bucket. 3 Q. So can you give me an estimate of how long it 4 would take you, it was taking you to do a lift between 5 we're ready to go, let's go get the skid loader, bring 6 in the fill, and then compact it to the point of 7 conclusion of a lift? 8 A. No. I can't recall the specific time frame 9 really. 10 Q. Are we talking more than an hour? 11 A. No, no, not more than an hour. 12 Q. So you think you could get the fill compaction, 13 be ready to move on to the next lift within an hour? 14 A. It depends what you -- like I said, the hole 15 just keeps getting bigger and bigger as you get higher 16 so I can't really -- I mean, the higher you come up 17 out of that hole the -- your lift naturally gets wider. 18 Q. And in terms of the equipment used, you're using 19 skid loaders to move the dirt from the dirt pile to the 20 hole, is that correct? 21 A. I believe there was a loader loading a dump 22 truck or an excavator loading a dump truck; the dump 23 truck would then back in maybe halfway, dump the pile. 24 The skid loader would then bucket it in little by little 25 and there was a roller back there that would roll the 6 (Pages 18 to 21) ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES BRADLEY MCALLISTER 34 1 Directing your attention specifically to the 1 2 second page of that document under the heading Products, 2 3 2.1, Soil Materials. And it talks about satisfactory and 3 4 unsatisfactory soil materials. 4 5 Were you aware that use of backfill containing 5 6 clay was an unsatisfactory soil material for this 6 7 project? 7 8 A. That would have been relayed to me through Mid- 8 9 State or BS&T. 9 10 Q. Did you ask for confirmation that the proctor 10 11 showed that there was not a clay content in the soil that 11 12 you were going to use to backfill on this project? 12 13 A. No, I did not. 13 14 Q. Did you make any effort to ascertain from any 14 15 source what the optimum moisture content would be for 15 16 the soil to be used to backfill on this project? 16 17 A. No, I did not. 17 18 Q. Do you recall what the composition of the soil 18 19 was that was used to backfill on this project? 19 20 A. No, I don't recall the composition of the soil. 20 21 Q. Do you recall if there was a clay component of 21 22 the soil. 22 23 A. No, I don't recall, but I would assume there 23 24 had to be some clay. 24 25 Q. Did you review this section of the project 25 35 1 manual that sets forth the specifications for the type of 1 2 soil that was suitable for this project. 2 3 A. No, I don't believe that I specifically 3 4 reviewed that. 4 5 Q. How did you know then that the soil on the 5 6 pile was satisfactory to use for backfill on this 6 7 project? 7 8 A. That would be determined by Mid-State and 8 9 BS&T Labs whether it was satisfactory. 9 to Q. Did you have that assurance or information 10 11 from Mid-State that the soil in the pile was 11 12 satisfactory to use as backfill? 12 13 A. The only assurance I would have had would be 13 14 if it had not been satisfactory they would have shut the 14 15 job down usually. But I don't have -- 15 16 Q. Did anyone from Mid-State say to you that the 16 17 soil in that pile was appropriate for use as backfill on 17 18 this project? 18 19 A. No, I don't believe anybody from Mid-State 19 20 actually told me that. 20 21 Q. Anyone from BS&T tell you that? 21 22 A. No. 22 23 Q. I am going to show you what we've marked as 23 24 Exhibit No. McAllister 3. This is another page of the 24 25 earthwork section of the project manual. Section 315 25 36 specifically deals with compaction of backfill. Were you aware that the requirement on this project called for you not to install more than eight inches in loose depth before compacting it on this project? A. No, I don't -- I can't say that I specifically read that. Q. In terms of your installation of fill then, did you install more than eight inches, at a time, loose fill before it was compacted? A. Well, that's a possibility, yes. Q. How did you track the amount of fill that you were putting in before you compacted it? Did you mark an area on the side wall and put dirt in until it reached a certain height or use a ruler or a tape, or how did you do it? A. I don't recall. I don't know if -- I don't know if it was done visually or with a laser or anything -- I don't know, I don't know. Q. Who was tasked with -- when you were working, operating equipment on in the midst of this fill -- who was tasked with saying, that's enough fill, now let's compact it? A. It was a constant compaction going on. So there was no -- you don't just put in a lift and say, 37 okay, that's it, stop what you're doing and you compact. There's a sequence of it. This side of the building would get compacted while this side is being filled, and then the roller would come over here, the roller would be compacting that side while the skid loader was over here. That's the way it -- Q. Was there someone on your work crew who was tasked with deciding that that's an appropriate amount of loose fill to begin the compaction process in that particular area? A. No one person was deemed with that, no. Q. And in terms of how that determination was made you indicate visually, and you're not sure if there was any measuring devices or equipment used to make that determination, is that correct? A. That is correct. (A recess was taken from 2:18 p.m. to 2:20 p.m.) MR. BRENNER: I have no further questions. I sense you want to say something? THE WITNESS: No. EXAMINATION BY MR. RETTIG: Q. I have one question for you, sir. Did you have any discussions with Mr. Radel during the St. Katharine's job about him having testing done on this 10 (Pages 34 to 37) ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES ???% IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA -------------------------------- X PENN NATIONAL MUTUAL CASUALTY INSURANCE COMPANY a/s/o WINALL, INC. d/b/a MIDSTATE, Plaintiffs, -vs- BRAD MCALLISTER, individually and as B.C. MCALLISTER PAVING, Defendants. . -------------------------------- X NO. 2010-4930 Civil Action - Law ORIGINAL Deposition Testimony of GARY GINGRICH 301 Market Street Lemoyne, PA August 24, 2011 10:30 a.m. IT IS HEREBY STIPULATED and agreed that the sealing of the within transcript is waived; IT IS FURTHER STIPULATED and agreed that all objections except as to the form of the question are reserved to the time of trial. ERSA REPORTING 30 South 17th Street United Plaza, Suite 1520 Philadelphia, PA 19103 (215) 564-1233 Fax (215) 564-1225 EXHIBIT 14 15 GARY GINGRICH 1 A. I don't recall. 2 Q. Mike Radel -- R-A-D-E-L -- was a person with 3 authority from Winall on this project. Do you recognize 4 Mike's name? 5 A. Yes. 6 Q. Do you remember having any discussions with Mike 7 about excavation and filling in excavation? 8 A. No, that usually was Brad's -- 9 Q. We're told by some earlier witnesses that 10 some of the work done to fill in excavations occurred 11 after three o'clock in the afternoon and after some of 12 the other trades had left the work site. 13 Do you have recollection of working late 14 afternoon, maybe into early evening, doing the filling 15 in of excavation on that site? 16 A. I know we worked late some nights, I'm not 17 really sure if that's what we had done or not but -- 18 Q. Thinking about the nights that you worked late, 19 and assuming for my question that some of the work done 20 in those later hours involved placing soil into 21 excavation, do you ever remember any testing company 22 being present during those later hours to test any soil 23 that had been placed in the excavations? 24 A. I don't recall of any, no. 25 Q. We've heard a term in your experience -- maybe ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 16 GARY GINGRICH 1 you're familiar with this -- do you recognize a term 2 lifts in terms of putting soil back into excavations? 3 A. Yes. 4 Q. In terms of the St. Katharine's project, how 5 were lifts placed into the excavation before compaction 6 occurred? 7 A. Well, we normally put eight inches of lifts in. 8 Q. How was the eight inches put in? What equipment 9 was used to do that? 10 A. Either the backhoe or the skid loader, whichever 11 was appropriate. 12 Q. How did you measure the eight inches? 13 A. Well, you always had a laborer that would shovel 14 it around. Pretty much guesstimate it, you know. 15 Q. As opposed to -- I've seen some situations when 16 they're trying to measure things in construction where 17 they put a stake in or something that has marks on it 18 showing however many inches or feet they want to have for 19 different things that they're working. 20 Do you have any recollection of stakes being 21 planted that showed the eight-inch levels for the lifts 22 that you were using as the ground was put in? 23 A. No. A lot of times we use the block measure, 24 kind of gauges if there's block. 25 Q. After the eight inches of soil was put in, how ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 17 GARY GINGRICH 1 was it compacted? 2 A. With a hand whacker. 3 Q. And you, at times, operated the hand whacker? 4 A. Yes. 5 Q. Did you, after you had used the hand whacker 6 over a particular area of soil, test in any fashion to 7 see what the compression of that soil was? 8 A. No. But you can pretty much tell after you 9 whack it if it's soft or not. 10 Q. And when I say test I'm going to say utilize 11 some type of equipment that's made to ascertain the 12 compaction of the soil, whether by probes or meters or 13 whatever it might be. Did you use any equipment like 14 that to test the compacted soil? 15 A. Once in a while we would grab a piece of rebar 16 and just -- 17 Q. Stick it in? 18 A. -- see if it would go, how -- you know what I 19 mean? I f it would sink. 20 Q. But other than the rebar did you use any kind 21 of, I'll say, more sophisticated equipment to do that? 22 A. No. 23 Q. Do you have any sense as to how many lifts would 24 have bee n placed during a particular shift when you were 25 filling in the excavation at St. Katharine's? ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served on this date a true and correct copy of the foregoing document upon all counsel of record by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Jeffrey B. Rettig, Esquire JOHNSON DUFFIE STEWART & WEIDNER 301 Market Street, PO Box 109 Lemoyne, PA 17043 GOLDBERG KATZMAN, P.C. BY: Thomas . Brenner, Esquire ID #32085 320 Market Street, PO Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff Dated: [ /-13/11 {00564370;vl } Pf ,. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) rr, TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within m4? f r n . . Argument Court.) , ` ---------------------------------- CAPTION OF CASE , - . (entire caption must be stated in full) Penn National Mutual Casualty Insurance Company a/s/o Winall, Inc. d/b/a MidState vs. Brad McAllister, individually and B.C. McAllister Paving No. 2010-4930 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Plaintiffs' Motion for Summary Judgement 2. Identify all counsel who will argue cases: (a) for plaintiffs: Thomas E. Brenner, Esquire (Name and Address) P O Box 1268, Harrisburg, PA 17108 (b) for defendants: Jeffrey B. Rettig, Esquire (Name and Address) 301 Market Street, Lemoyne, PA 17043 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4 name Jeffrey B. Rettig, Esquire, (Def counsel) - 100/11 Attorney for #1/ Date: INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Argument Court Date: December 16, 2011 Johnson, Duffle, Stewart & Wgld ' ;0THON0TA By: Jeffrey B. Rettig I.D. No. 19616 2111 O CT 13 All I I 301 Market Street P.O. Box 109 C.IRf1BERLAND COUNT",! Lemoyne, Pennsylvania 17043-010b-NNBYLVANIA 717-761-4540 JBR@jdsw.com PENN NATIONAL MUTUAL CASUALTY INSURANCE CO., a/s/o WINALL, INC., d/b/a MIDSTATE, PLAINTIFFS V. BRAD McALLISTER, individually and B.C. McALLISTER PAVING, DEFENDANTS Attorneys for Defendants Brad McAllister, individually and B.C. McAllister Paving IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-4930 CIVIL ACTION - LAW REPLY OF DEFENDANTS TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND NOW comes the Defendants, by their attorneys, Johnson, Duffie, Stewart & Weidner, and responds to Plaintiffs' Motion for Summary Judgment as follows: 1. Admitted. 2. It is admitted that Plaintiffs' Complaint asserts one count of breach of contract and one count of negligence against each of the two named Defendants. 3. Admitted with clarification. A Stipulation was filed attaching to the Complaint a copy of the contract prior to Defendants filing an answer. 4. Admitted. 5. Admitted in part. Denied in part. It is admitted that counsel has exchanged written discovery and some depositions have been scheduled. It is denied that discovery "has been completed" or that this matter is "ripe for summary judgment." As a result of reviewing written discovery furnished by Plaintiffs' counsel, the undersigned counsel determined that the subrogating insurer, Penn National, had retained an engineering expert from National Forensics Consultants to examine the scene of this incident and was billed 5.9 hours to do so. By letter dated December 2, 2010, the undersigned counsel requested Plaintiffs' counsel furnish him with the photographs and reports taken by the engineer. (See Exhibit 1 attached hereto). By letter dated February 15, 2011, Plaintiffs' counsel responded to Defendants' attorney advising that he had "...an engineer reviewing this matter...". (See Exhibit 2 attached hereto). Whether that engineer was the gentleman from National Forensics Consultants referenced in Exhibit 1 is unknown. Having learned the name of the engineer who Penn National hired to examine the scene and realizing through discovery that Penn National had asked this engineer to not prepare a report of his findings, defense counsel wrote to Plaintiffs' counsel on April 25, 2011 asking to take Mr. Catanzaro's deposition. Mr. Catanzaro had not been listed as an expert by Plaintiffs' counsel up to that point in time. (See Exhibit 3 attached hereto). In response to that letter, Plaintiffs' counsel wrote on May 2, 2011 that he expected Mr. Catanzaro to serve as Plaintiffs' expert and that he was discussing with him the completion of his "expert analysis". Plaintiffs' counsel indicated that once defense counsel had his report, if defense counsel still wished to have a fact deposition, that could be discussed. (See Exhibit 4). Two months later on July 6, 2011, the undersigned counsel again wrote to Plaintiffs' counsel asking about the report from Mr. Catanzaro. (A copy of that letter is attached hereto marked Exhibit 5). In response to that letter, Plaintiffs' counsel advised that Mr. Catanzaro would be serving as Plaintiffs' expert and that he had been requested to "complete a comprehensive report" which would be provided to Defendants' counsel. (See Exhibit 6 attached hereto). Additional depositions were taken in this case on August 24, 2011. Following those depositions, the undersigned counsel again wrote to Plaintiffs' counsel inquiring about his expert and expressing a desire to list this case for trial. (See Exhibit 7 attached hereto). Instead of furnishing the expert report as promised for many months, Plaintiffs' counsel instead filed the instant Motion for Summary Judgment without any expert reports purporting to causally connect the asserted improper compaction by Defendant to the problem experienced by St. Catherine's Church. Based on the foregoing and the repeated promises from Plaintiffs' counsel to submit an expert report, Defendant disagrees with the statement that "discovery has been completed." 6. The answers to paragraphs 1 through 5 above are incorporated herein by reference thereto. 7. Denied as stated. It is admitted that Defendant B. C. McAllister Paving (and not Defendant Brad McAllister) contracted to provide some services to St. Catherine's Drexel Church. It is specifically denied that Defendant B. C. McAllister Paving agreed to perform any testing on the backfill. To the contrary, under the specific terms of the contract as prepared by Plaintiff, "soil bearing tests, compaction tests and density tests are excluded from this subcontractor's scope of work." (See Exhibit B to Contract attached to Plaintiffs' Motion) 8. Admitted. 9. Denied. There is no paragraph 3.15(a) to the Contract attached as Exhibit A to Plaintiffs' Motion for Summary Judgment. 10. The deposition testimony of Mr. McAllister that is attached to Plaintiffs' Motion for Summary Judgment speaks for itself. However, in order to understand the context of that testimony, a complete copy of Mr. McAllister's deposition testimony is attached to this reply as Exhibit 8. It should be pointed out that at no point in time did Mr. McAllister testify that he knew that more than 8 inches of fill were used per layer prior to compacting at this particular project. 11. The answer to paragraph 10 above is incorporated herein. In further answer, portions of the deposition testimony of Mr. Gingrich are attached hereto marked as Exhibit 9 reflecting how the workmen that were actually doing the work measured the depth of the fill. 12. Mr. Gingrich's deposition testimony speaks for itself. It should be noted that he did testify at page 16 that they used the height of the concrete blocks (8 inches) to gauge the height of the "lift". 13. Denied. It is denied that Defendants' employees admitted to utilizing twice the amount of loose fill/backfill as alleged. 14. Denied as stated. It is admitted that employees of Defendant B. C. McAllister Paving worked "after hours" and did not test the compacted layers. However, as indicated above, the obligation for testing rested with MidState, not B. C. McAllister, and thus if testing of the compaction was necessary, which it was, then that was the obligation of MidState, not Defendants. 15. Denied as stated. To the contrary, as known by Plaintiffs' counsel, the area at issue here, which is a corner of a corridor connecting an existing church building with a new church building, initially subsided in 2003. Significant work was done at that time to buttress the footers supporting the corridor. Ultimately, it was determined in 2003 that the footer would have to be "underpinned" because of its inability to support the portion of the corridor that it was supposed to support. The structural engineer who worked for Capitol Construction Engineering and was involved in the design of the church additions recently gave deposition testimony in this case in which he concluded that the reason the footer subsided in 2003 was because an excessive amount of water was allowed to get into that area and was not due to any improper fill or inadequate compaction. (See selected portions of deposition testimony of Kenneth Bell attached hereto as Exhibit 10, pgs. 22-26, specifically, page 25, lines 3-11. It is admitted that in October 2006 after the area had been underpinned as a result of the problems experienced in 2003, additional settlement occurred in the area where it had in 2003 which resulted in damages to the Church building. It is denied that the area where the settlement occurred in 2006 was an area where excavation, grading, backfill or soil compaction had been performed by the Defendants in 2003. 16. Admitted. 17. The answers to paragraphs 1 through 13 above are incorporated herein by reference thereto. 18. Admitted. Although that is not the case in this lawsuit. 19. Admitted. 20. It is admitted that this is a correct statement of the law. Defendant has not produced its expert's report because of repeated promises from Plaintiffs' attorney that Plaintiff would produce an expert's report on the critical issue in this case, that being the cause of the subsidence in 2006. (See exhibits 1-7 above). Plaintiffs' Motion does not even purport to establish a causal connection between the alleged inadequate compaction of the backfill and the subsequent problems experienced in 2006, despite the fact that Plaintiffs' counsel has repeatedly asserted that Plaintiffs have an expert. Moreover, Plaintiffs have shielded from discovery an engineer who was on site for almost 6 hours at the request of the subrogating insurer, who was specifically requested to not prepare a report and who supposedly is in the process of preparing a report but no such report has been produced for over 8 months. Thus, while this paragraph represents an accurate statement of the law, the fact of the matter is that the Plaintiff has not produced one shred of evidence, expert or otherwise, that the problems experienced in 2006 at this Church were at all attributable to the compaction of fill that took place in 2002. 21. Denied. It is denied that Defendants have admitted breaching any paragraph of the Contract. Indeed, the Motion does not even contain a paragraph 3.15(a) of the Contract. WHEREFORE, Defendants respectfully request that Plaintiffs' Motion for Summary Judgment be denied. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By Jeffrey B. Rettig? uire I . D. No.: 19616] 301 Market Street PO Box 109 Lemoyne, PA 17043 (717) 761-4540 Attorneys for Defendants Brad McAllister, Individually and B.C. McAllister Paving 461948 EXHIBIT 1 JERRY R. DUFrIE RICHARD W. STFwaRT C. ROY WEIDNER, JR. EDMUND G. MYERS DAVID W. DELUCE JOHN A. STATLER JEFFERSON J. SHIPMAN JEFFREY B. RETTIO KEVIN E. OSBORNE MARK C. DUFFIE JOHN R. NINOSKY MICHAEL J. CASSIDY Thomas Brenner, Esquire P. O. Box 1268 Harrisburg, PA 17108-1268 I(AKON DUFFIE December 2, 2010 Re: Penn National v McAllister Cumberland County C.C.P. Docket No. 2010-4930 Dear Tom: MELISSA PEEL GREEVY WADE D. MANLEY ELIZABETH D. SNOVER ANDREW P. DOLLMAN SARAH E. HOFFMAN REW J. PETSU, JR. B. MCCLAIN GOL HORACE A. F. LEE SHIPMAN (1965-2006) Thanks for responding to our discovery in this matter. I noted that in the file notes, there is an entry for April 10, 2007 during which it was stated that a statement would be taken from the insured "this afternoon". I have no record of that statement and would appreciate receiving a copy of it. In addition, I noticed an invoice from National Forensic Consultants, Inc. reflecting 5.9 hours of consultation. I would like to receive whatever photographs and reports Penn National received from NFC. Thank you. Very truly yours, JBR-csj:423100 HNSON D FFIE, STEWART &WEIDNER r ettig 301 MARKET STREET P.O. BOX 109 LEAIOYNE, PENNSYLVANIA 17043-0109 WWW.JDSW.COM 717.761.4540 FAY: 717.761.3015 MAILCJDSW.COM JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. EXHIBIT 2 Le FAA i Goldtner?),, A full-service law firm. February 15, 2011 Jeffrey B. Rettig, Esquire Arthur 1, Goldberg Johnson Duffle 1951-=0001 301 Market Street xarrv B. Goldben Lemoyne, PA 17043 190i-19981 RE: Penn National a/s/o Winall, Inc. v. Brad McAllister, et al. Ronald NIL K,I«nna" Our File No: 64000-1228 P,wl j. Espliito J. ja% ('01T C1, Dear Mr. Rettig: 7 T110111,P) 1. h+e+,ne In response to your letter of February 9, 2011, I do not agree with your analysis of the testimony. I have an engineer reviewing this matter and based upon the deposition transcripts and review of records, I anticipate a report that will be critical of McAllister's work which clearly did not comply with the contract per his own testimony. Po"c" 1.. Ntol-ri:; joseph M. sonllm)t I would like to schedule the depositions of the two individuals that Mr. 1.1?k,I;,+1,10 McAllister identified as being in charge when he was not on site. I will gather je+n,iFer t.. RL+th those names from the transcript when copies are received and forward you a letter s. Baker Kerisinger regarding same. My recollection is that one person still works with Mr. McAllister and the other is in the area. Very truly yours, joshua D. Lock Arnold B. Kogan Heather L. Paterno G??homas E. Brenner TEB/lsb 202837.1 EXHIBIT 3 JERRY R. DUFFIE --,, -eC[IARD W STFW-ART EDMUND G. MYERS DAVID W.DELUCE JOHN A. STATLER JEFFERSON J. SHIPMAN JEFFREY B. RETTIG KEVIN E. OSBORNE MARK C. DUFFIE JOHN R. NINOSKY MICHAEL J. CASSIDY MELISSA PEEL GREEVY (MON J DUFFIE April 25, 2011 Thomas Brenner, Esquire P. O. Box 1268 Harrisburg, PA 17108-1268 Re: Penn National v McAllister Cumberland County C.C.P. Docket No. 2010-4930 Dear Tom: WADE D. MANLEY ELIZABETH D. SNOVER K . REW P. DOLLMAN AH E. HOFFMAN D J. PETSU, JR. CAR TN B CCLAIN 0 ?HO CE A. JOHN C.ggWEIDNER, JR. '0965-21?6) As you know, I have asked to take the deposition of Mr. Catanzaro, an expert who came to the scene and inspected certain parts of the scene. We know of his involvement through the claim notes from Penn National. I would like to take his deposition simply to find out what he observed when he was at the site. You have not listed him as an expert and thus it seems to me I should be able to take his deposition. He may have valuable information regarding the conditions that he observed at the time. I write simply to see if you have any objection if I deal directly with him or if I need to deal through you. Again, since you have not listed him as an expert witness or produced any report from him, I think I am within my rights to contact him directly but do not want to do so without first consulting with you. Best regards. Very truly yours, .,JOHNSON, DUFFIE, STEWART & WEIDNER Q`"Jeff y Rettig JBR:csJj:439019 301 MARKET STREET P.O. BOX 109 LEMOYNE, PENNSYLVANIA 17043-0109 WWWJDSW.COM 717.761.4540 FAX: 717.761.3015 MAIL@JDSW.COM JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. EXHIBIT 4 Goldberg Katzman. A full-service law firm. May 2, 2011 Arthur L. Goldberg (1'151-20001 Harry B. Goldberg 1961-19981 Ronald NL Katzman Paul J. Esposito 1. Jay Cooper Thomas E.. Brenner April L. Strang- KULP,' ferry !. Russia ti1ichael J. t:rocenzi Fho nias 1. %Vcher Steven L,("rubl? RoticC' 1.. Morris Joseph M. Sembrot Ron.tldo 1-e`, aspi lenniti.r L. Mund"r . Bak,!r Kensingei lwdii1,t D. Lock Arnold B. Kogan Heather L. Paterno Jeffrey B. Rettig, Esquire Johnson Duffie 301 Market Street Lemoyne, PA 170+3 R?-,?I lq'y4'SOA, _ <2d11 RE: Penn National a/s/o Winall, Inc. v. Brad McAllister, et al. Our File No: 64000-1228 Dear Jeff- It is anticipated that Mr. Cantanzaro will serve as our expert in this matter. He has changed jobs and I am discussing with him completion of his expert analysis. Therefore, I do object to any direct dealings with Mr. Cantanzaro. Once we have his report, if you still wish to have a fact deposition regarding his observations when he was at the church, we can discuss same. (:::truly yours, ' 0"' omas E. Brenner rEBilsb 206058.1 EXHIBIT 5 ?JF . DUFFLE WADE D. M.ANLEY RICHARD W. STEWART ELIZABETH D. SNOVER EDMUND G. MYERS L A W 0 F F I C E S 4NDltW P. DOLLNIAN DAVID W. DF.LUCE SRH F,?'H'OFFMAN - JOHN A. STATLER CAROLYPf . MCC-LAIN SON ox? JEFFERSON J. SHIPMAN MARTIN ?,?VADE- JEFFREY B. RETTIG y' KEVIN E. OSBORNE OF COUNSEL, FFIE MARK C. DUFFIE HORACE A. JOHNSON JOHN R. NINOSKY C. ROY WEIDNER, JR. MICHAEL J. CASSIDY CONSTANCE P. BRUNT MELISSA PEEL GREEVY F. LEE SHIPA'IAN (1965-2006) W!TITEIt's I' XT Nii. Ifi5 1?-11_a1i. jbr-,,-J l m, rnrn July 6, 2011 Thomas Brenner, Esquire P. O. Box 1268 Harrisburg, PA 17108-1268 Re: Penn National v McAllister Cumberland County C.C.P. Docket No. 2010-4930 Dear Tom: I am still awaiting report from your expert, Mr. Catanzarro. You may recall that I wanted to take this gentleman's deposition as he was at the scene doing an investigation into the cause of the problem. You had indicated that you would use him as an expert which would preclude my deposing him. If you have had a change of heart on that, please let me know so we can schedule his deposition. If you do intent to use him as an expert, please forward to me a copy of his report. Thank you. Very truly yours, JOHNSON, DUFFIE, STEWART & WEIDNER JBR:csj:448782 301 MARKET STREET P.O. BOX 109 LEMOYNE, PENNSYLVANIA 17043-0109 WWW.JDSW.COM 717.761.4540 FAX. 717.761.3015 MAILQJDSWCOM JOHNSON, DUFFIE-, STEWART & WEIDNER, P.C. EXHIBIT 6 r Goldberg Katzman A full-service law firm. July 7, 2011 Arthur l.. t ?olclher Harrv i,. Coldl??er Ronald N1. K,1tr.n1,u1 R ul 1. E.?Ix,sito April LS?r,u1:;- 1 hom.!."' J. . 1 _, Stc?' F. 0111,1b Rw•x L. ;11o! rig; J. hrnr! Flo i Jenniicr 1.. Ruili S. Bal,cr Ken;iugc?r C( w ' l_! losLua 1). Lo k- Arnold B. Kogan Heather L. Patcrno Jeffrey B. Rettig, Esquire Johnson Duffle 301 Market Street Lemoyne, PA i 7043 x P, RE: Penn National a/s/o Winall, Inc. v. Brad McAllister, et al. Our File No: 64000-1228 Dear Jeff: With regard to Mr. Cantanzaro, he will serve as our expert in this matter. We have provided him with additional documents that he requested as well as the transcripts of the depositions in order for him to complete a comprehensive report which I will provide to you. (/-V-e'?y u rs, Homas E. Brenner TEB/lsb (00539602;vI) 320 Nlarket Street, Stra??bcrre Square RO. Box 1268 Harrisburg, PA 17108-1268 1 717-231-4161 1717-2' 4-6808 1 f x ? n?u 'r. ?1r?h??rtkritznunl.iorrr EXHIBI ?I-,RRY R. DUPFIE RICHARD W. STEWART WADE D. MANLEY EDIkIUND G. MYERS ELIZABETH D. SNOVFR L A W 0 F F I C E S DAVID W DELUCE ANDREW P. DOLLMAN JOHN A. STATLFR JEFFERSON J. SHIPMAN SARAH E. HOFF14,4N 4(;'0 YN B. NICCLAIiN SON jqA JEFFREY B. RETTIG A F COUNSEL MARK C. DUPFIE ' HOR 'ZE A UFFIE D JOHN R. NINOSKY ON MICHAEL J. CASSIDY MELISSA PEEL GREEVY C. ROY 1? ? ray' (!ti' CONSTANCE P. t58t VT F. LEE S141PNIAiN 0065-2006) I'?:-1:1?i(, ;I7 r'''1j l14 N l'nYp August 26, 2011 Thomas Brenner, Esquire P. O. Box 1268 Harrisburg, PA 17108-1268 Re: Penn National v McAllister Cumberland County C.C.P. Docket No. 2010-4930 Dear Tom: Following the depositions on Wednesday, I asked about whether you were ready to list this case for trial. You said you wanted to touch base with your expert before doing so. Do you have a problem with my listing the case for trial two weeks from today's date? That should give you ample opportunity to discuss the matter with your expert and hopefully produce an expert's report. I should be in a position to respond to any expert's report that you issue within 30 days of my receipt of your expert's report. This case has been lingering for some time and not much has changed. I think it behooves both of us and our clients to get it over with sooner rather than later. Best regards. Very truly yours, ON, PJFFIE, STEWART & WEIDNER R JBR:csj:457067 301 NIARKET STREET P.O. BOX 109 LEMOYNE, PENNSYLVANIA 17043-0109 W'WVVjDSWCOM 717.761.4540 FAX: 717.761.3015 MAIL6JDS1V..C0N1 JOHNSON, DUFFIE, STEWART & WEIDNER, P.C, EXHIBIT 8 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ------------------------------- X PENN NATIONAL MUTUAL CASUALTY INSURANCE COMPANY a/s/o WINALL, INC. d/b/a MIDSTATE, NO. 2010-4930 Plaintiffs,: Civil Action - -vs- Law BRAD MCALLISTER, individually and as B.C. MCALLISTER PAVING, Defendants.: COPY ------------------------------- X Deposition Testimony of BRADLEY MCALLISTER 301 Market Street February 8, 2011 Lemoyne, PA 1:50 P.M. IT IS HEREBY STIPULATED and agreed that the sealing of the within transcript is waived; IT IS FURTHER STIPULATED and agreed that all objections except as to the form of the question are reserved to the time of trial. q ERSA REPORTING 30 South 17th Street United Plaza, Suite 1520 Philadelphia, PA 19103 (215) 564-1233 Fax (215) 564-1225 BRADLEY MCALLISTER 2 APPEARANCES: GOLDBERG KATZMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 BY: THOMAS E. BRENNER, ESQ. (717) 234-4161 For the Plaintiffs JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043 BY: JEFFREY B. RETTIG, ESQ. (717) 761-4540 For the Defendant ALSO PRESENT: Steven Shadle ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 3 BRADLEY MCALLISTER I N D E X WITNESS EXAMINATION BY PAGE Bradley McAllister Mr. Brenner 5 Mr. Rettig 37 Mr. Brenner 41 ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 4 BRADLEY MCALLISTER 1 E X H I B I T S 2 EXHIBIT DESCRI PTION PAGE 3 McAllister 1 Excerpt from Site Clearing Document 29 4 McAllister 2 Excerpt from Earthwork Document 29 5 McAllister 3 Excerpt from Earthwork Document 29 6 McAllister 4 Excerpt from Project Manual 30 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 5 BRADLEY MCALLISTER 1 P R O C E E D I N G S 2 3 STEVEN SHADLE, being duly sworn by 4 Kathryn Plizga, Notary Public, was called 5 and testified as follows: 6 7 EXAMINATION BY MR. BRENNER: 8 Q. Could you state your name, sir? 9 A. Bradley McAllister. 10 Q. Mr. McAllister, my name is Tom Brenner. I 11 represent the interests of Penn National in this 12 lawsuit. 13 You've sat here for a few hours today, I think 14 you've got a sense of what the process is, do you not? 15 A. I do, yeah. 16 Q. The important direction I sense.you understand 17 that there's a lovely young lady to your right who is 18 making a record for us. The answers to the questions 19 need to be oral. 20 So, if I ask you a question, I need to get some 21 words on the record; do you understand that? 22 A. I do. 23 Q. I don't want you to guess. If I'm asking you 24 about something that you don't know, tell me that and 25 we'll move on. Your represented here by counsel. If you ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 6 BRADLEY MCALLISTER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 want to talk to Jeff at any point let me know that and we'll accommodate, okay? A. Okay. Q. What is your present address, sir? A. 5140 Erbs Bridge Road, Mechanicsburg. Q. 17055? A. 17050. Q. How old are you, sir? A. Forty. Q. A little bit about your background; did you graduate from a local high school? A. I did, I graduated from Upper Dauphin High School. Q- A. Q. A. Q- A. Q- A. Q. A. Q- A. What year? 1988. Any post-high school education? Yes, I attended HACC. Do you have a degree or a certificate from HACC? I don't believe I did get a certificate. What was your area of study at HACC? Architecture. Ever been in the military? Never. Work history, what is your present business? Present business is B.C. McAllister Paving, ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 7 BRADLEY MCALLISTER 1 Incorporated. 2 Q. When did that business start? 3 A. The year 2000, incorporated 2001. 4 Q. When it started was it just a business in your 5 own name? 6 A. Sole proprietorship, yes. 7 Q. You say you incorporated in 2001? 8 A. Yes. 9 Q. Pennsylvania corporation? 10 A. Yes. 11 Q. Prior to going into business as B.C. McAllister 12 Paving in 2000, what had you done for work? 13 A. In 1987 I started working heavy construction 14 -doing-water and sewer lines. Held that heavy 15 construction job excavating right -- all the way through 16 college. 17 Q. Who did you work for doing that? 18 A. Weigley Construction. 19 Q. Where are they based out of? Where were they? 20 A. Dalmatia, PA. 21 Q. How long did you work for Weigley? 22 A. I believe it was 191 or 192. 23 Q. What was your work after that? 24 A. I worked at a tool and die maker called Brubaker 25 Tool for exactly one year. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 8 BRADLEY MCALLISTER 1 Q. What did you do after Brubaker Tool? 2 A. I went to work for a company called J.D. Eckman, 3 Incorporated. 4 Q. What type of work did you do for Eckman? 5 A. We mainly installed -- we did highway work and 6 airports -- the paving and excavating and pipe work. 7 Q. How long did you work with Eckman? 8 A. I worked with Eckman until 1998. 9 Q. In other words, before you started your own 10 business? 11 A. I did -- I worked for a company called Brian 12 Zigler Paving and Excavating. 13 Q. How long were you with Brian? 14 A. Only about a year to learn the driveway side of 15 that business. 16 Q. And then you started your own business in 2000? 17 A. Yes. 18 Q. There's been some questions in the pleadings in 19 this matter, I am going to show you -- Jeff and I tried 20 to get a fairly complete copy of the complaint and we did 21 a stipulation that we filed with the Court back in 22 September of 2010. 23 And I am going to show you that stipulation. 24 The first page is the first page of the contract 25 agreement, and it shows B.C. McAllister Paving on the ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 9 BRADLEY MCALLISTER 1 contract that was dated December 13 of 2002. Were you 2 incorporated at that time? 3 A. Yes. 4 Q. And see down at the bottom where the document is 5 signed subcontractor, B.C. McAllister Paving, it appears 6 to be your signature below that, is that correct? 7 A. That is my signature, yes. 8 Q. Did you point out to whoever prepared this 9 document that the name of your business was incorrect and 10 that it should have reflected that it's a corporation 11 rather than a sole proprietorship? 12 A. No, I did not. 13 Q. We understand then in addition to being involved 14 with Mid-State for-the project at the church, you were 15 also doing work with them at the Harrisburg Area 16 Community College? 17 A. That's correct. 18 Q. When you started the project at the community 19 college, were you incorporated at that time? 20 A. I believe I was. 21 Q. Do you know if the contract that you signed at 22 that time reflected a reference B.C. McAllister, Inc. or 23 whether that also reflected B.C. McAllister Paving, if 24 you recall? 25 A. I don't recall and -- ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 10 BRADLEY MCALLISTER 1 Q. You were going to say something else? 2 A. I had done a project with them before then 3 also. 4 Q. Okay, what project was that? 5 A. A credit union on Front Street. 6 Q. What had you done on that project? 7 A. Just some small excavation work. 8 Q. What was the project at the community 9 college, what was involved there? 10 A. They were putting on an addition to the book 11 store. 12 Q. Your role, your business' role in that 13 project was what? 14 A. The excavation. 15 Q. There were some questions earlier, I am going 16 to move to this. Again, using the stipulation that we 17 signed E xhibit B to the contract is a scope of work 18 document . Had you seen that document and reviewed it 19 before you signed the contract? 20 A. Yes, I believe I did. 21 Q. And it lists some 31 different aspects of work 22 you were going to do on this project, is that correct? 23 A. That's correct. 24 Q. Backfill and compaction is listed as number 10, 25 is that correct? ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 11 BRADLEY MCALLISTER 1 A. That is correct. 2 Q. Removal of excess soil from site is listed as 3 number 16, is that correct? 4 A. That is correct. 5 Q. Was there removal of soil that was involved in 6 the St. Katharine's Church project? 7 A. I believe we did remove soil. 8 Q. Are we talking top soil or are we talking 9 backfill-type material? 10 MR. RETTIG: Let me just object only because I 11 don't know that they're mutually exclusive. But you can 12 answer. 13 A. I don't recall whether -- I know there was 14 top soil removed but I don't recall whether there was 15 Q. Did you work on the St. Katharine's project 16 yourself? 17 A. I did. 18 Q. Did you have someone acting as a 19 supervisor/foreman for McAllister on this project? 20 A. There was always somebody placed in charge if I 21 wasn't there but not per se a job foreman that -- 22 Q. And my understanding of your role on a project 23 like this is you may be there for a couple of days and 24 then you may not need to be back there for maybe a couple 25 of weeks depending on what stage the project is in? ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 12 BRADLEY MCALLISTER 1 A. That's correct. 2 Q. The backfilling that's been the subject of 3 questions for the last few hours, were you yourself 4 involved in the backfilling? 5 A. I was involved, yeah. 6 Q. My understanding is that process of putting 7 in fill and compacting it, it's something that takes 8 several days to complete, particularly when we're talking 9 about here where it was a 15 or a 17-foot area, is that 10 correct? 11 A. That is correct. 12 Q. Were you present on each day when workers for 13 McAllister were involved in the backfilling? 14 A. As best I can recall I was there every day. 15 Q. Were you there in the capacity of operating 16 equipment or doing the work or were you there to check 17 and see what the progress of your men were doing and then 18 you moved on to something else? 19 A. Some days I was there actually as an equipment 20 operator, other days basically a foreman. And I'm 21 sure there were days that I was in and out. 22 Q. We heard some discussions earlier when Mike 23 Radel was here that approval was sought to allow work to 24 be done after three o'clock in the afternoon that might 25 run into the early evening in terms of the backfilling ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 13 BRADLEY MCALLISTER 1 activities. Did that happen on this project? 2 A. Are you asking, did we work after hours? 3 Q. Yes. 4 A. Yes, we did. 5 Q. Did you seek approval to work after hours from 6 either Mr. Radel or someone else with Mid-State? 7 A. I don't know that I specifically sought them out 8 and said, are we allowed to work after hours? 9 Q. Mr. Radel seemed to recall that he had called 10 Dan Wilson, the project manager, when it was indicated 11 that some work was to be done after 3:00 or 3:30 and got 12 approval from Dan for you to do work or your employees 13 to do work at that time. 14 Do you recall that that sequence of events 15 occurred? 16 A. No, I don't recall -- I don't recall that. I 17 wasn't privy to that conversation so -- 18 Q. Did anyone from Mid-state raise concern that you 19 were going to be working after the typical construction 20 day, that being after three o'clock into the early 21 evening on this project? 22 A. No. 23 Q. Do you still have records with regard to this 24 project? 25 A. Right up until 2006 I had a lot. But no, I have ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 14 BRADLEY MCALLISTER 1 been rummaging through things and trying to find -- I do 2 not have many records at all to tell you the truth. 3 Q. Do you have some records that relate back to the 4 work done -- 5 A. Absolutely, yeah, I have some. 6 Q. Do you know what a proctor is? 7 A. I do. 8 Q. Did you secure a proctor with regard to the 9 soil that was to be used for backfilling purposes at 10 St. Katharine's? 11 A. No. 12 Q. Some questions were asked earlier about testing 13 that was to be done by Mid-State and what would be 14 responsibilities of McAllister. 15 Did you discuss, when you entered into this 16 contract, what testing would be performed by your company 17 and what testing would be performed by Mid-State? 18 A. No. 19 Q. Are you aware that for excavation and 20 backfilling purposes that a proctor needed to be done? 21 A. Yes. 22 Q. Did you have any discussions with anyone with 23 Mid-State as to who would undertake to perform a proctor? 24 A. Who they would hire or -- 25 Q. Whether you would do it or Mid-State or some ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 15 BRADLEY MCALLISTER 1 designee of Mid-State would do it? 2 A. No, I just didn't have any discussions with 3 anyone. 4 Q. Did you obtain a copy of the proctor that Mid- 5 State di d have done to evaluate whether the soil would be 6 proper f or backfill purposes? 7 A. No. 8 Q. Are you aware that if the soil did not meet 9 appropriate standards that you would be required to bring 10 in off-site soil to backfill? 11 A. Yeah, absolutely. 12 Q. Did you bring any off-site soil in for backfill 13 purposes at St. Katharine's? 14 A. Never. 15 Q. If you were to need off-site soil, would that 16 soil have to be tested before it could be used on a site 17 like St. Katharine's? 18 A. Absolutely. 19 Q. A proctor test? 20 A. A proctor test. 21 Q. Let's do it this way, have you ever had jobs 22 where you needed more fill than was available on a site? 23 A. Absolutely. 24 Q. And in those instances, have you had to seek 25 fill or obtain fill from another location? ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 16 BRADLEY MCALLISTER 1 A. I have. 2 Q. And in doing so, would that soil from another 3 site be submitted or be tested by proctor before it could 4 be used on a particular project? 5 A. Yes. 6 Q. And if that proctor was done, would you provide 7 a copy of that analysis to the general contractor, 8 whoever was running the project, that you were seeking to 9 bring the fill to? 10 A. Yes. 11 Q. Was it your understanding under this contract 12 that if you had to use fill beyond that available on 13 site, that you would have to have it tested and submit a 14 report for approval by the general contractor? 15 A. Yes. 16 Q. In terms of the testing during the backfilling 17 work, it's my understanding that BS&T was called to the 18 site to test density, compaction and soil bearing during 19 the installation of the backfill, is that correct? 20 A. That is correct. 21 Q. Was there an understanding that McAllister had 22 as to how often that would occur? 23 A. I don't understand. 24 Q. A better question. It's my understanding that a 25 certain amount of loose dirt is put in, compacted to ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 17 BRADLEY MCALLISTER 1 complete each stage of the backfill process; that a fair 2 description? 3 A. Yeah. 4 Q. How much dirt is put in before compaction 5 occurs? 6 A. It can be -- it varies -- but it can be anywhere 7 from a three-inch up to a twelve-inch lift. 8 Q. Were there requirements in the documents for 9 this project as to how large the lifts were to be? 10 A. I'm sure. 11 Q. Do you recall what that was? 12 A. I do not. 13 Q. I think I've got that document, I'll find it '14 here in a moment. 15 Was there any discussion with Mike Radel as to 16 how often the backfill would be tested; that is, after 17 each lift, after every two lifts, or was there any 18 discussion along those lines? 19 A. As far as the lifts are concerned, no. 20 Q. Was there any discussion recognizing you put in 21 so many inches of material and then compact it, that when 22 you moved up another foot or foot and a half, we'll do a 23 test at that time? 24 A. No. 25 Q. Did you provide Mike information that if you did ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 18 BRADLEY MCALLISTER 1 work after the end of his business day, that when he 2 would get there the next day you'd say to him, we put "X" 3 feet of fill in between the time you left yesterday and 4 when we finished last evening? 5 A. No, that was fairly a visual thing. 6 Q. I understand. But sometimes people provide 7 reports as to what was done. 8 Was there any reporting to Mike to say, we put 9 like two and a half feet of fill in between three 10 yesterday and eight last night when we left the site? 11 A. No. 12 Q. Were there any discussions with Mike or anyone 13 else from Mid-State about the testing of the backfill 14 that was being put in after he left for the day? 15 A. Were there any discussions with Mike? Could you 16 repeat the question? 17 Q. Sure. Were there any discussions with Mike 18 about the testing of the backfill work that was done 19 after he left for the day? 20 A. No. 21 Q. Were there any arrangements made with BS&T or 22 any other testing entity to test your work that was done 23 after Mike had left for the day? 24 MR. RETTIG: By him? 25 MR. BRENNER: Yes. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 19 BRADLEY MCALLISTER 1 A. That I don't -- I wouldn't know. 2 MR. RETTIG: He meant by you. Did you make 3 any arrangements? 4 A. No, I didn't make any arrangements. 5 Q. Did you say to Mike or anyone from Mid-State, 6 we're going to be working into the evening, we hope to 7 get "X" number of lifts in and compacted, would it make 8 sense to have somebody here like seven o'clock at night 9 to test what we've done up to that point? 10 A. No. 11 Q. Any discussions about testing the work that you 12 were doing after three o'clock into the evening hours 13 with Mike or anyone else? 14 A.• Well, the only discussions that Mike and I 15 had were I could only backfill to a certain level. Mike 16 would only let me backfill to a certain level because of 17 the waterproofing that was going on the side of the 18 building. 19 There was a specification from the manufacturer 20 that we had to let glue dry for a 24-hour period or 21 whatever in order for it to hold warranty. So I was only 22 allowed to backfill to a certain level. 23 Q. So if you came in there at 3:30 on Wednesday, 24 you could only go so far in terms of the backfilling from 25 whenever you started until it was too dark to work ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 20 BRADLEY MCALLISTER 1 anymore? 2 A. I could only go as far as the waterproofing 3 would allow me to is basically -- 4 Q. What is the maximum amount of fill that you 5 recall installing in that time after three o'clock on any 6 particular day? 7 MR. RETTIG: In terms of lift? 8 MR. BRENNER: Yes. 9 A. I can't really give you a definite answer 10 there. As you come up, the hole gets wider and wider and 11 wider so I can't really say for sure. 12 Q. Do you know if you installed three or four 13 lifts in a particular session? 14 A. Yeah. I would say three lifts. 15 Q. How much time -- and I appreciate that it 16 gets wider as you go up farther -- but was there an 17 average amount of time to move the soil from the pile 18 into the hole, level it and then compact it before a 19 lift was finished? 20 A. Well, there was plenty of time to compact it 21 because the -- most of the fill was -- had to be 22 brought in by a skid loader because of the way the 23 building was designed and because of the way we cut 24 it. 25 So we could not get -- you couldn't take a dump ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 21 BRADLEY MCALLISTER 1 truck in there and dump a whole dump truck load. No, it 2 was brought in bucket by bucket. 3 Q. So can you give me an estimate of how long it 4 would take you, it was taking you to do a lift between 5 we're ready to go, let's go get the skid loader, bring 6 in the fill, and then compact it to the point of 7 conclusion of a lift? 8 A. No. I can't recall the specific time frame 9 really. 10 Q. Are we talking more than an hour? 11 A. No, no, not more than an hour. 12 Q. So you think you could get the fill compaction, 13 be ready to move on to the next lift within an hour? 14 A. It depends what you -like I said, the hole 15 just keeps getting,bigger and bigger as you get higher 16 so I can't really -- I mean, the higher you come up 17 out of that hole the -- your lift naturally gets wider. 18 Q. And in terms of the equipment used, you're using 19 skid loaders to move the dirt from the dirt pile to the 20 hole, is that correct? 21 A. I believe there was a loader loading a dump 22 truck or an excavator loading a dump truck; the dump 23 truck would then back in maybe halfway, dump the pile. 24 The skid loader would then bucket it in little by little 25 and there was a roller back there that would roll the ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 22 BRADLEY MCALLISTER 1 earth so 2 Q. How far away was the dirt pile from the area 3 that you were filling? 4 A. I would say approximately 70 feet. 5 Q. So it made sense to get it onto a dump truck and 6 get it physically closer to the hole before you unloaded 7 the truc k and then used the skid loader to put it in the 8 hole? 9 A. Correct. 10 Q. You couldn't get the dump truck close enough to 11 be able to dump into the hole? 12 A. The dump truck could not maneuver around the 13 building because of the way the design of the building 14 was. 15 Q. And in terms of the equipment used then, when 16 the dump truck was empty, a skid loader was used to take 17 bucket by bucket and dump it into the excavation? 18 A. Correct. 19 Q. And then you say you had a roller that was used 20 to level and compact the soil? 21 A. Correct. 22 Q. How large a roller? 23 A. We had a dirt roller on site that I have no idea 24 what the weight of that is. And then we also had a 25 five-ton Bowman roller. And it probably would hit say ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 23 BRADLEY MCALLISTER 1 10,000 psi or so. 2 Q. How many men were involved in the operation, if 3 you say we're going to put the next lift in between 4 loading the truck, moving the truck, operating the skid 5 loader, operating the roller or rollers? 6 A. There was usually five -- five men involved. 7 Q. You had mentioned you didn't have a foreman per 8 se, but if you would be there, there would be someone in 9 charge. Can you recollect any of the men that served as 10 the kind of guy in charge when you weren't there on this 11 project? 12 A. Yeah, Collin, Collin Still 13 Q. S-T-I-L-L? 14 A. Yeah. 15 Q. Anyone else? 16 A. I believe Gary Gingrich. 17 Q. G-I-N-G-R-I-C-H?. 18 A. Yes. 19 Q. Anyone else? 20 A. They were pretty much the go-to-guys. 21 Q. Is Collin still with you? 22 A. He is. 23 Q. How about Gary? 24 A. No. 25 Q. Is Gary still in the area? ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 24 BRADLEY MCALLISTER 1 A. Gary is still in the area. 2 Q. Do you know where he lives? 3 A. I have no idea where he lives. 4 Q. Do you know who he works for now? 5 A. The last I heard it was A.P. Williams. 6 Q. Did you, you being McAllister Company, have any 7 testing done of any of the lifts that you installed; that 8 is, you hired someone to do a test of the lifts for soil 9 compaction, density, etc.? 10 A. On the St. Katharine's job? 11 Q. Yes. 12 A. No. 13 Q. Did you ever make any arrangements with anyone 14 from BS& T to come to the site at a time when you were 15 there an d Mike Radel was not to test any of the lifts for 16 density, soil compaction? 17 A. No. 18 Q. Have you ever conducted density testing 19 yourself? 20 A. I have not. 21 Q. Are you aware of how effective it is, depending 22 upon how much fill has been installed from when it was 23 last tested to the point that it's next tested? 24 A. No. When I heard these gentleman talking about 25 it, it only tests the top 10 inches, that was news to me. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 25 BRADLEY MCALLISTER 1 Q. Have you ever heard that before, that the 2 testing of compaction is good for 10 inches or a foot but 3 if there's been more material installed than that, the 4 testing equipment will not be able to sense that there's 5 compacti on at a level below 10 inches 12 inches? 6 A. No, I've never heard that before. 7 Q. Job meetings on this site, did you attend job 8 meetings at all? 9 A. Some. 10 Q. Were there any issues with the work performed 11 by -- and specifically about backfill work -- that your 12 company did on this project? 13 MR. RETTIG: At job meetings or just -- 14 MR. BRENNER: Job meetings. 15 A. While I was present at these meetings or-- 16 Q. Let's start with that. 17 A. Not that -- while I sat at the meetings -- not 18 that I recall. 19 Q. Did you ever hear of discussion at the meetings 20 when you were not present of concerns or complaints about 21 your work doing the backfilling? 22 A. No. 23 Q. Did Mike Radel or Dan Wilson ever contact you 24 and say, there's an issue with regard to your performance 25 of work in performing backfilling on this project? ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 26 BRADLEY MCALLISTER 1 A. No, not that I'm aware of. 2 Q. Did you receive copies of the BS&T reports 3 showing the testing that they did of the backfill 4 installation? 5 A. No. 6 Q. Did you request copies of those reports? 7 A. I believe my insurance company did, but I did 8 not. 9 Q. Did you ever compare those reports to the 10 proctor that was performed to see if the work that was 11 being pe rformed was within the specifications as set 12 forth in the proctor? 13 A. No, I never saw the reports so I don't know what 14 the -- 15 Q. Steve Shadle seated with us here yet, he 16 recalled that in 2006 you visited on two occasions to the 17 St. Katharine's site to discuss the problems that were 18 found or occurring at that time. Do you recall that? 19 A. I recall meeting with Steve once. 20 Q. Do you know when that was roughly? 21 A. I believe it -- I don't know for sure. 22 Q. Do you remember what was discussed? 23 A. The cracks, I remember the discussion of the 24 cracks in the walls. 25 Q. Was there discussion that there was a belief ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 27 BRADLEY MCALLISTER 1 that the backfill had contributed to the cracks in the 2 walls? 3 A. No, at that point there was no discussion about 4 the backfill. The only discussion was about me being 5 involved, do I want to be involved in the solution. 6 Q. And did you choose to be involved in the 7 solution? 8 A. I did not choose to be involved. 9 Q. Why not? 10 A. Because I would have wanted to be paid to be 11 there. 12 Q. Was it your understanding that being involved in 13 the solution was going to be a request for some free work 14 from you? 15 A. Well, that was an assumption you might say. 16 Q. Did you retain anyone to review the work that 17 you did on this project back in 2003 and make an 18 assessment as to whether there was anything that was not 19 done properly by you? 20 A. (Witness, shaking head). 21 Q. No? 22 A. Oh, no. Sorry. 23 Q. I am going to show you first some documents, and 24 if you recognize them we'll mark them and go through it. 25 If you don't recognize them, whatever. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 28 BRADLEY MCALLISTER 1 This is the cover page for the project manual 2 for the St. Katharine's Drexel project. There is an 3 index which lists several categories of things. 4 Had you ever seen the project manual for this 5 project? 6 A. I don't recall seeing these pages, no. 7 Q. Okay. Looking back for a moment at the contract 8 document that was attached to the stipulation here, 9 it was your understanding that beyond the contract for 10 B.C. McAllister that there were other documents that 11 related to this project; other contract plans, documents, 12 things of that sort, is that correct? 13 A. Other than this -- 14 Q. Yeah. 15 A. -- document? I'm not sure what your question 16 is. 17 Q. The document references here in the paragraph 18 beyond December 5, 2002 drawings, specifications, other 19 contract documents. 20 My question, in agreeing to work on this project 21 it was your understanding that the contract documents 22 were more than just the documents that you had on this 23 subcontract, is that correct? 24 A. That would be correct. 25 Q. Did you review the project manual for this ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 29 BRADLEY MCALLISTER 1 project of which what I'm showing you here, the cover 2 pages and the index pages, as you either performed the 3 work on this project or chose to submit a bid on this 4 project? 5 A. I'm not sure that -- at some point I got 6 drawings for it and specifications -- but they don't 7 always come through before the contract comes through 8 necessarily. 9 I mean, the drawings do but -- 10 11 (Deposition Exhibit No. 12 McAllister 1, Excerpt from Site 13 Clearing document, marked for •14 identification.) 15 16 (Deposition Exhibit No. 17 McAllister 2, two-page excerpt 18 from Earthwork document, marked 19 for identification.) 20 21 (Deposition Exhibit No. 22 McAllister 3, Excerpt 10 from 23 Earthwork document, marked for 24 identification.) 25 ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 30 BRADLEY MCALLISTER 1 (Deposition Exhibit No. 2 McAllister 4, first three pages 3 from Project Manual, marked for 4 identification.) 5 6 Q. Mr. McAllister, did you keep progress notes 7 to show the progression of the backfill and how much fill 8 was being installed per day by your workers? 9 A. No. 10 Q. Would you have any documents that would 11 reflect how much fill was installed on any given day 12 by your work crew, whether by volume or by height or 13 distance covered in the excavation? 14 A. At this point in time, no, I would not have any- 15 documents. I have not found any. 16 Q. Exhibit D to the contract form talks about 17 providing a certificate of insurance on this project. 18 Did you provide Mid-State with a certificate to show that 19 you were insured at the time you did the work in 2003? 20 A. I'm sure that I did. 21 Q. The last paragraph of this certificate of 22 insurance requirement indicates that you were to name 23 Mid-State, Crab Tree, Rohrbaugh and St. Katharine's 24 Drexel Church as an additional insureds on that 25 certificate of insurance or on that insurance coverage. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 31 BRADLEY MCALLISTER 1 Did you name them as additional insureds on this project? 2 A. I don't know. 3 Q. Do you have any records from your insurance 4 company or insurance agent that can confirm to you 5 whether you did in fact name these entities as additional 6 insureds on your insurance coverage in place at the time 7 that you were doing the work? 8 A. I would -- again, I don't know. 9 Q. There were questions raised earlier about a need 10 in 2003 to excavate under the footers and install some 11 concrete to provide support under one of the footers on 12 this cor ridor. 13 Were you involved in that work? 14 A. I was. 15 Q. Did you make any determination as to what was 16 causing the footer to settle at that point in time? 17 A. To my recollection, yes, there was water. 18 Q. Was the source of the water determined? 19 A. Yes, roof and surface. 20 Q. We heard a description earlier I think from 21 Steven that there was some piping above that was causing 22 water to discharge into a particular area and that's 23 where the problem occurred? 24 A. Uh-huh. 25 Q. Did you see evidence that water was discharging ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 32 BRADLEY MCALLISTER 1 from the roof or a spouting system directly onto an area 2 where the problem developed? 3 A. Yes. 4 Q. As part of the fix, in addition to excavating 5 and putting concrete in, did you notice that there was an 6 effort made to pipe the water away from that area so that 7 it wouldn't happen again? 8 A. Yeah, there was temporary piping put in to 9 keep -- yeah. 10 Q. The area dry? 11 A. Yeah. 12 Q. I'm going to show you some documents from the 13 project manual. First, I want to just -- and they're not 14 in the o rder I wanted them to be -- but we'll make do the 15 best we can. 16 We've marked this Exhibit No. McAllister 4 17 that cover page and the index. You said earlier you were 18 not sure if you saw this document or not, is that 19 correct? 20 A. That is correct. 21 Q. On the second page of the index there is a 22 specific section that's entitled Section 2300, Earth 23 Work. 24 A. Uh-huh. 25 Q. Do you remember reviewing that section of ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 33 BRADLEY MCALLISTER 1 the project manual for any specifications that it 2 provided? 3 A. I don't recall. I don't recall whether -- 4 Q. I am going to show you a one-page document 5 that we've marked as Exhibit No. McAllister 1 to your 6 deposition. It's entitled Soil Materials. 7 It indicates, "Obtain approved borrow soil 8 materials off- site when satisfactory soil materials are 9 not -- " 10 Well written. 11 You were aware under the St. Katharine's project 12 that if you did not have adequate backfill materials 13 there, that if you had to go off-site they had to be 14 approved before they could be used, correct? 15 A. No. Let me -- that is a general practice in 16 the construction industry. 17 Q. Okay. 18 A. So -- 19 Q. Were you aware that that was a condition in the 20 project manual for this particular project, St. 21 Katharine's, set forth in the section -- 22 A. Sure, yes. 23 Q. I am going to show you what we've marked as 24 Exhibit No. McAllister 2, which is from Section 2300 of 25 the project manual entitled Earthwork. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 34 BRADLEY MCALLISTER 1 Directing your attention specifically to the 2 second page of that document under the heading Products, 3 2.1, Soil Materials. And it talks about satisfactory and 4 unsatisfactory soil materials. 5 Were you aware that use of backfill containing 6 clay was an unsatisfactory soil material for this 7 project? 8 A. That would have been relayed to me through Mid- 9 State or BS&T. 10 Q. Did you ask for confirmation that the proctor 11 showed that there was not a clay content in the soil that 12 you were going to use to backfill on this project? 13 A. No, I did not. •14 Q. Did you make any effort to ascertain from any 15 source what the optimum moisture content would be for 16 the soil to be used to backfill on this project? 17 A. No, I did not. 18 Q. Do you recall what the composition of the soil 19 was that was used to backfill on this project? 20 A. No, I don't recall the composition of the soil. 21 Q. Do you recall if there was a clay component of 22 the soil. 23 A. No, I don't recall, but I would assume there 24 had to be some clay. 25 Q. Did you review this section of the project ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 35 BRADLEY MCALLISTER 1 manual that sets forth the specifications for the type of 2 soil that was suitable for this project. 3 A. No, I don't believe that I specifically 4 reviewed that. 5 Q. How did you know then that the soil on the 6 pile was satisfactory to use for backfill on this 7 project? 8 A. That would be determined by Mid-State and 9 BS&T Labs whether it was satisfactory. 10 Q. Did you have that assurance or information 11 from Mid-State that the soil in the pile was 12 satisfactory to use as backfill? 13 A. The only assurance I would have had would be 14 if it had not been satisfactory they would have shut the- 15 job down usually. But I don't have -- 16 Q. Did anyone from Mid-State say to you that the 17 soil in that pile was appropriate for use as backfill on 18 this project? 19 A. No, I don't believe anybody from Mid-State 20 actually told me that. 21 Q. Anyone from BS&T tell you that? 22 A. No. 23 Q. I am going to show you what we've marked as 24 Exhibit No. McAllister 3. This is another page of the 25 earthwork section of the project manual. Section 315 ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 36 BRADLEY MCALLISTER 1 specifically deals with compaction of backfill. 2 Were you aware that the requirement on this 3 project called for you not to install more than 4 eight inches in loose depth before compacting it on this 5 project? 6 A. No, I don't -- I can't say that I specifically 7 read that. 8 Q. In terms of your installation of fill then, did 9 you install more than eight inches, at a time, loose fill 10 before it was compacted? 11 A. Well, that's a possibility, yes. 12 Q. How did you track the amount of fill that you 13 were putting in before you compacted it? 14 • Did you mark an area on the side wall and put 15 dirt in until it reached a certain height or use a ruler 16 or a tape, or how did you do it? 17 A. I don't recall. I don't know if -- I don't know 18 if it was done visually or with a laser or anything -- I 19 don't know, I don't know. 20 Q. Who was tasked with -- when you were working, 21 operating equipment on in the midst of this fill -- who 22 was tasked with saying, that's enough fill, now let's 23 compact it? 24 A. It was a constant compaction going on. So 25 there was no -- you don't just put in a lift and say, ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 37 BRADLEY MCALLISTER 1 okay, that's it, stop what you're doing and you compact. 2 There's a sequence of it. 3 This side of the building would get compacted 4 while this side is being filled, and then the roller 5 would come over here, the roller would be compacting that 6 side while the skid loader was over here. That's the 7 way it -- 8 Q. Was there someone on your work crew who was 9 tasked with deciding that that's an appropriate amount of 10 loose fill to begin the compaction process in that 11 particular area? 12 A. No one person was deemed with that, no. 13 Q. And in terms of how that determination was made 14 you indicate visually, and you're not sure if there was 15 any measuring devices or equipment used to make that 16 determination, is that correct? 17 A. That is correct. 18 (A recess was taken from 2:18 p.m. to 2:20 p.m.) 19 MR. BRENNER: I have no further questions. 20 I sense you want to say something? 21 THE WITNESS: No. 22 EXAMINATION BY MR. RETTIG: 23 Q. I have one question for you, sir. Did you 24 have any discussions with Mr. Radel during the 25 St. Katharine's job about him having testing done on this ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 38 BRADLEY MCALLISTER 1 soil and the backfill. 2 A. Yeah, Mike and I had an informal discussion. He 3 actually had BS&T come out and test an area that was just 4 off the soccer field. And that was a significant fill. 5 And BS&T was there for two days testing down there every 6 single lift that went in there. 7 And he did make the comment to me that he's 8 probably going off budget with the testing already. 9 Q. Did he tell you when he was going to have BS&T 10 come in and test ahead of time or was that solely his 11 decision? 12 A. No, that was his decision. 13 Q. Could he have had BS&T come in and do testing 14 when your people weren't even there? 15 A. Oh, absolutely, yeah. 16 Q. Sir, we took a break and I went through the 17 daily construction reports that were prepared by 18 Mr. Radel. You're going to have to accept my word on 19 this, but we all have the same documents. 20 I found three reports in July 10, July 11 and 21 July 15. On July 11 he indicates that B.C. McAllister 22 was there. What does he describe you doing on that day? 23 A. Backfill wall. 24 Q. And the next entry that I found indicating 25 that you were on site was on the next day, July 11. What ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 39 BRADLEY MCALLISTER 1 does Mr. Radel have you doing at that point in time? 2 A. Backfill of building walls. 3 Q. Again, on July 15, 2003, Mr. Radel has you 4 present at the site doing what? 5 A. Backfill walls. 6 Q. And then the entries from the 15th that we 7 just talked about, I just want to confirm that on July 16 8 there's no indication that your men were at the site, 9 correct? 10 A. Correct. 11 Q. On July 17, it appears four of your men were 12 there backfilling walls, started 2:00 p.m.? 13 A. Correct. 14 Q. If your gentleman start work at 2:00 p.m. is 15 it possible that you worked beyond the time that 16 Mr. Radel -- or is it likely that your men worked beyond 17 the time that Mr. Radel was on the site? 18 A. Yes, if he left at 3:30 that day. 19 Q. And if you guys didn't start until two o'clock 20 you might well have gone beyond? 21 A. Yes. 22 Q. For the 21st, is there any indication that 23 McAllister employees were on site? 24 A. No. 25 Q. How about July 22? ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 40 BRADLEY MCALLISTER 1 A. No. 2 Q. July 23? 3 A. No. 4 Q. July 24? 5 A. No. 6 Q. The 25th? 7 A. No. 8 Q. The 28th? 9 A. No. 10 Q. The 29th? 11 A. No. 12 Q. How about July 30; does the daily construction 13 report reflect that your people were on site on that 14 date? 15 A. Yes. 16 Q. What, according to Mr. Radel, what were the 17 McAlli ster employees doing on July 30? 18 A. Dig footers at upper level. 19 Q. Do you understand that to be the upper corridor? 20 A. I would assume, yeah. 21 Q. And in order to dig footers, would the backfill 22 have t o have been completed such that you could dig down, 23 dig a trench to install footers? 24 A. Yes. 25 Q. Do you know, sir, or have you seen any of ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 41 BRADLEY MCALLISTER 1 the BS&T reports reflecting whether any inspections were 2 done on those four or five days that the daily 3 construction reports reflect that you were backfilling 4 walls in July? 5 A. Have I seen any of those reports? 6 Q. Yes, BS&T. 7 A. No, no. 8 MR. RETTIG: That's all, thank you. 9 EXAMINATION BY MR. BRENNER: 10 Q. The reference to the soccer field, do you know 11 when that work was done which you referenced that there 12 was some testing at the soccer field? 13 A. To tell you the truth, I cannot. 14 Q. •, So whether that was before or after you were 15 involved in backfilling the walls you can't say for sure 16 as you sit here today, is that correct? 17 A. As I sit here today, I would not be 100 percent 18 sure. 19 MR. BRENNER: That's all I have, sir, thank 20 you. 21 (The deposition was concluded at 2:32 p.m.) 22 23 24 25 ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES EXHIBIT 9 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA -------------------------------- X PENN NATIONAL MUTUAL CASUALTY INSURANCE COMPANY a/s/o WINALL, INC. d/b/a MIDSTATE, Plaintiffs, -vs- . BRAD MCALLISTER, individually and as B.C. MCALLISTER PAVING, Defendants. -------------------------------- X NO. 2010-4930 Civil Action - Law COPY Deposition Testimony of GARY GINGRICH i 301 Market Street Lemoyne, PA August 24, 2011 10:30 a.m. IT IS HEREBY STIPULATED and agreed that the sealing of the within transcript is waived; IT IS FURTHER STIPULATED and agreed that all objections except as to the form of the question are reserved to the time of trial. ERSA REPORTING 30 South 17th Street United Plaza, Suite 1520 Philadelphia, PA 19103 ;' I (215) 564-1233 Fax (215) 564-1225 16 GARY GINGRICH 1 you're familiar with this -- do you recognize a term 2 lifts in terms of putting soil back into excavations? 3 A. Yes. 4 Q. In terms of the St. Katharine's project, how 5 were lifts placed into the excavation before compaction 6 occurred? 7 A. Well, we normally put eight inches of lifts in. 8 Q. How was the eight inches put in? What equipment 9 was used to do that? 10 A. Either the backhoe or the skid loader, whichever 11 was appropriate. 12 Q. How did you measure the eight inches? 13 A. Well, you always had a laborer that would shovel 14 it around. Pretty much guesstimate it, you know. 15 Q. As opposed to -- I've seen some situations when 16 they're trying to measure things in construction where 17 they put a stake in or something that has marks on it 18 showing however many inches or feet they want to have for 19 different things that they're working. 20 Do you have any recollection of stakes being 21 planted that showed the eight-inch levels for the lifts 22 that you were using as the ground was put in? 23 A. No. A lot of times we use the block measure, 24 kind of gauges if there's block. 25 Q. After the eight inches of soil was put in, how ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 17 GARY GINGRICH 1 was it compacted? 2 A. With a hand whacker. 3 Q. And you, at times, operated the hand whacker? 4 A. Yes. 5 Q. Did you, after you had used the hand whacker 6 over a particular area of soil, test in any fashion to 7 see what the compression of that soil was? 8 A. No. But you can pretty much tell after you 9 whack it if it's soft or not. 10 Q. And when I say test I'm going to say utilize 11 some type of equipment that's made to ascertain the 12 compaction of the soil, whether by probes or meters or 13 whatever it might be. Did you use any equipment like 14 that to test the compacted soil? 15 A. Once in a while we would grab a piece of rebar 16 and just -- 17 Q. Stick it in? 18 A. -- see if it would go, how -- you know what I 19 mean? If it would sink. 20 Q. But other than the rebar did you use any kind 21 of, I'll say, more sophisticated equipment to do that? 22 A. No. 23 Q. Do you have any sense as to how many lifts would 24 have been placed during a particular shift when you were 25 filling in the excavation at St. Katharine's? ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES EXHIBIT 10 22 KENNETH BELL 1 where the water came through and dropped down to the 2 corner. 3 Q. And your impression, based on what you could see 4 when yo u were there on the 19th, was that structural 5 damage was not significant? 6 A. Correct. 7 Q. Then it was your understanding that the Midstate 8 foreman would do the excavation we talked about before 9 earlier in your memo, and then you would come back and 10 have a better idea of what really happened? 11 A. Correct. 12 13 (Deposition Exhibit No. 14 Bell 3, document Memo dated 9-25-03, 15 marked for identification.) 16 17 Q. Let me show you what we've marked as your 18 Exhibit No. Bell 3. That's a two page document. It's 19 a memo from you dated September 25, 2003, to Dan Wilson 20 at Mids tate with a copy to Mr. Castner, correct? 21 A. Yes. 22 Q. Do you have a recollection of how you came to 23 communi cate with Dan Wilson at that time, or who he was? 24 A. He may have been the person I talked to in the 25 field. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 23 KENNETH BELL 1 Q. The fellow you referred -- 2 A. Yes. 3 Q. -- previously referred to as the Midstate's 4 foreman? 5 A. Yes. 6 Q. Do you know what date you actually went back 7 to the site? 8 A. It says in the memo that it was September 25. 9 Q. And it was just for one day, correct? 10 A. A portion of the day. 11 Q. At that point in time had the excavation that 12 you had requested in your earlier -- where you talked 13 about in your earlier memo -- had that been accomplished? 14 A. Yes. He was down to footing level. 15 Q. And had that been dug out in that corner we've 16 previously referred to here where the corridor intersects 17 the -- or interfaces -- with the existing structure? 18 A. Yes. 19 Q. You make a recommendation about an underpinning 20 undertaken because of soil that has been softened by 21 water entering the foundation. 22 Do you see where you talked about that? 23 A. Yeah. 24 Q. What did you have in mind there? I know it's in 25 the di agram but -- ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 24 KENNETH BELL 1 A. Well, there was a soft zone, because of the 2 water coming down off the roof, there was a soft zone of 3 soil that I felt, when I probed it, was not sufficient to 4 support the footing. 5 So in order to get rid of the soft zone down to 6 a harder material, they would have to dig additional 7 excavation and put a new footing underneath the one they 8 had already placed. 9 Q. Was it your belief, from what you could see 10 then, that it was because of this soft soil underneath 11 the footer that had led to the block joint cracks -- 12 A. Yes. 13 Q. -- and fractures? 14 And that term was reflective of the fact that at 15 least that end of the corridor was subsiding somewhat? 16 A. That's correct. 17 Q. What was it that you saw that led you to 18 conclude that the soil supporting that footer had been 19 softened by the water intrusion that we talked about? 20 A. It was just the consistency of the soil itself, 21 how soft it was. That's why I used that -- what I 22 indicate is an inch and a half probe -- 23 Q. Uh-huh. 24 A. -- diameter rod, to drive down through that 25 soft material to find a harder layer. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 25 KENNETH BELL 1 It was just looking at it and probing it that 2 I knew it was too soft to support the footing. 3 Q. Based on what you could observe and what you did 4 observe, was that because of the moisture or because the 5 fill was inappropriate to start with? 6 A. My conclusion was it was because of the water. 7 Q. Based on your training and education as a 8 structural engineer, can an excessive amount of water 9 cause otherwise supportive fill or backfill to become 10 soft? 11 A. Yes. 12 Q. The last paragraph of Exhibit No. Bell 3 13 says, "A vibrating plate compactor is to be used on 14 the soil surface when it is exposed at the 24-inch depth 15 below the bottom of existing footing." 16 I think I know what a vibrating plate compactor 17 is. Why did you make that recommendation? 18 A. Well, once I probed, I was able to tell by the 19 probe when it hit resistance. That's how I selected the 20 24-inch footing. 21 And what I wanted them to do is once they 22 exposed the soil at the bottom of that new footing, I 23 wanted to make sure that they had it compacted. And 24 that's what the plate compactor purpose was. 25 Q. So the plan as you envisioned it was to excavate ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 26 KENNETH BELL 1 and remove the soft soil until you got to the better 2 stuff that you talked about that you found with your 3 probe? 4 A. Correct. 5 Q. Then to compact that better material with a 6 vibrating plate compactor, correct? 7 A. Yes. 8 Q. What was going to be installed on top of that 9 then compacted material? 10 A. The new footing. 11 Q. Concrete essentially? 12 A. Solid concrete between that compacted top 13 layer -- compacted top surface -- to the bottom of the 14 existing footing. 15 Q. Did you have any concern when you made that 16 recommendation about the consistency of the fill that 17 was going to be compacted or the material that this new 18 underpinning footer was going to rest on? 19 A. I didn't have any concern because of the size of 20 the footing that I was recommending compared to the 21 smaller footing that was there before. 22 Q. Did you do any testing of what the material 23 consisted of that you were recommending to be 24 compacted with the vibratory plate compactor? 25 A. No. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES CERTIFICATE OF SERVICE AND NOW, this / / day of October, 2011, the undersigned does hereby certify that he did this date serve a copy of the foregoing Reply of Defendants to Plaintiffs' Motion for Summary Judgment upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Thomas E. Brenner, Esquire Jennifer L. Ruth, Esquire PO Box 1268 Harrisburg, PA 17108 JOHNSON, DUFFIE, STEWART & WEIDNER By: J ey B. Rettig PENN NATIONAL MUTUAL CASUALTY INSURANCE CO., a/s/o WINALL, INC., d/b/a MIDSTATE, Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-4930 CIVIL BRAD MCALLISTER, individually and B.C. MCALLISTER PAVING, Defendants IN RE: PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J. AND MASLAND, J. ORDER AND NOW, this `f day of January, 2012, following argument thereon, it appearing that there are disputed issues of material fact with regard to the ultimate issues in this case, the motion of the Plaintiffs for summary judgment is DENIED. BY THE COURT, Kevin . Hess, P. J. $/Thomas E. Brenner, Esquire For the Plaintiffs rnco C- Y Jeffrey B. Rettig, Esquire x rn z;0 A z r For the Defendants ?A - :rlm b? Z -: - =4= ?= 5 > N aM • FILED-OFFICE ,-F THE PROTHONOTARY PRAECIPE FOR LISTING CASE FOR TRIAI„012 JAN 19 PM 2: 16 (Must be typewritten and submitted in triplicatg UMBERLAND COUNTY L TO THE PROTHONOTARY OF CUMBERLAND COUNTY PENNSYLVANIA Please list the following case: [ V' for JURY tria 1 at the next term of civil court. ? for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) Penn National Mutual Casualty Insurance Co., a/s/o Winall Inc., d/b/a, Midstate, (Plaintiff) vs. Brad McAllister, individually and B.C.McAllister Paving, vs. (Defendant) (check one) X? Civil Action - Law ? Appeal from arbitration a (other) The trial list will be called on 03/27/2012 and Trials commence on the week of 4/23/2012 Pretrials will be held on April 11, 2012 (Briefs are due S days before pretrials No. 2010-4930 Term Indicate the attorney who will try case for the party who files this praecipe: Thomas E. Brenner, Esquire, PO Box 6991, Harrisburg, PA, 17112 Indicate trial counsel for other parties if known: Jeffrey B. Rettig, Esquire, Counsel for Defendants, 301 Market Street, Lemoyne, PA 17043 This case is ready for trial. Thomas E. Brenner, Esquire Print Name: Date: 1 I (l au a Attorney for: Plaintiff " ,. aoi. 7 S ?d A Cie 1+ 1030ol('a X 0 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served on this date a true and correct copy of the foregoing document upon all counsel of record by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Jeffrey B. Rettig, Esquire JOHNSON DUFFIE STEWART & WEIDNER 301 Market Street, PO Box 109 Lemoyne, PA 17043 GOLDBERG KATZMAN, P.C. BY: Thomas E. Brenner, Esquire 320 Market Street, PO Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff Dated: January 17, 2012 t00580413;v1} L Goldberg Katzman, P.C. Thomas E. Brenner, Esquire ID #32085 S. Baker Kensinger, Esquire 1D #208305 4250 Crums Mill Road, Suite 301 PO Box 6991 Harrisburg, PA 17112 (717) 234-4161 Attorney for Plaintiff s, ME* RROTHONOTA; ` 2012 MAR 20 AM 11: 02 CUMBERLAND COUNTY PENNSYLVANIA PENN NATIONAL MUTUAL CASUALTY INSURANCE CO., a/s/o WINALL INC., d/b/a MIDSTATE, Plaintiffs V. BRAD MCALLISTER, individually and B.C. MCALLISTER PAVING, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-4930 CIVIL ACTION-LAW JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please change the address of Plaintiff's attorney, Thomas E. Brenner, Esquire to: Goldberg Katzman, P.C. 4250 Crums Mill Road, Suite 301 PO Box 6991 Harrisburg, PA 17112 GOLDBERG KATZMAN, P.C. By: _ Cc Thomas E. Brenne , Esquire Attorney ID #32085 4250 Crums Mill Road, Suite 301 P. O. Box 6691 Harrisburg, PA 17112 Telephone: (717) 234-4161 Attorneys for Plaintiff Date: 3/19/2012 100590164;vII 04 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid, addressed to the following: Jeffrey B. Rettig, Esquire JOHNSON DUFFIE STEWART & WEIDNER 301 Market Street, PO Box 109 Lemoyne, PA 17043 GOLDBERG KATZMAN, P.C. By: Thomas E. Brenner, squire Date: March 19, 2012 {00590164;vI1-2- 1 0 PENN NATIONAL MUTUAL CASUALTY INSURANCE CO., a/s/o WINALL INC., d/b/a MIDSTATE PLAINTIFF V. BRAD McALLISTER, Individually and B.C. McALLISTER PAVING DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-4930 CIVIL IN RE: PRE-TRIAL CONFERENCE ORDER OF COURT AND NOW, this 11th day of April, 2012, after Pre-Trial Conference with counsel in this matter, IT IS HEREBY ORDERED AND DIRECTED that: 1. Trial counsel in this matter will be Thomas E. Brenner, Esquire for Plaintiff and Jeffrey B. Rettig, Esquire for Defendant. 2. There is no judicial conflict in this case. 3. Counsel has indicated that the trial will take approximately 2 days. 4. Jurors will not be permitted to take notes. 5. Each party will be granted four peremptory challenges. 6. There is no need for a view in this matter. 7. All Pre-Trial Motions to include Motions in Limine should be filed with the Court on or before the close of business on Tuesday, April 17, 2012. 8. The parties shall prepare an exhibit list. Two copies of this exhibit list shall be provided to the Court on or before 12:00 p.m. on Friday, April 20, 2012. All visual aids used in the case shall be disclosed to the opposing party. III 9. Counsel for each party is directed to file with the Court on or before 12:00 p.m. on Friday, April 20, 2012, a list of the numbered standard jury instructions the party is requesting. If a party is proposing a unique jury instruction or requesting significant modification of a standard instruction, it shall provide the full text of the proposed instruction to the Court. 10. On or before 12:00 p.m. on Friday, April 20, 2012, the parties will provide a proposed verdict slip to the Court for review. 11. On or before 12:00 p.m. Friday, April 20, 2012, the parties shall provide a copy of their proposed jury voir dire questions to the Court for review. By the Court, M. L. Ebert, Jr., J. ? Thomas Brenner, Esquire Attorney for Plaintiff = 4250 Crums Mill Road, Suite 301 P. O. Box 6991 Harrisburg, PA 17112 _ tt Jeffrey B. Rettig, Esquire ? Attorney for Defendant c- _~ 301 Market Street Lemoyne, PA 17043 Court Administrator bas 6p,es /Aa 4 (Y PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. X1 for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) Penn National Mutual Casualty Insurance Co., a/s/o Winall, Inc., d/b/a Midstate (Plaintiff) VS. Brad McAllister, individually and B.C. McAllister Paving VS. (Defendant) ' ''APP 17 AM It: P Em,4S YLVA I4A, (check one) X? Civil Action - Law ? Appeal from arbitration (other) The trial list will be called on and Trials commence on April 23, 2012 Pretrials will be held on (Briefs are due S days before pretrials 2010-4930 Indicate the attorney who will try case for the party who files this praecipe: Jeffrey B. Rettig, Esquire Term Indicate trial counsel for other parties if known: Thomas E. Brenner, Esquire This case is ready for trial. Stned: 4/16/12 Date: Attorney for: Defendants ate{ tag.7spd Print NVme: Jeffrey B. PENN NATIONAL MUTUAL CASUALTY INSURANCE CO., a/s/o WINALL INC., d/b/a MIDSTATE PLAINTIFF V. BRAD McALLISTER, Individually and B.C. McALLISTER PAVING DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-4930 CIVIL ORDER OF COURT AND NOW, this 25th day of April, 2012, after Non-Jury Trial in the above- captioned matter, the Court finds that the Plaintiff has not sustained their burden of proof and that a verdict shall be entered in favor of the Defendants; Accordingly, IT IS HEREBY ORDERED AND DIRECTED that judgment shall be entered for the Defendants. By the Court, Thomas Brenner, Esquire Attorney for Plaintiff 4250 Crums Mill Road, Suite 301 P. O. Box 6991 Harrisburg, PA 17112 y' Jeffrey B. Rettig, Esquire Attorney for Defendant 301 Market Street Lemoyne, PA 17043 Court Administrator- A AS 1?k %? ?a M. L. Ebert Jr. c_ , , - Xrn V F, r to Cc r- C C' 5 aC--) ro _ al -Tl ' ?. r o bas 'ell c