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HomeMy WebLinkAbout10-5270' Sty 4 Pecht & Associates, PC Rob Bleecher, Esquire PA I.D. No. 32594 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 aob KU6 rr IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JAMES G. KNISELY and CAROLINE L. KNISELY, Plaintiff VS. MILLER & NORFORD, INC., d/b/a MILLER & NORFORD, and RYAN SILVAGIO, individually and in his capacity as Officer and Director, Defendants Gol'I(Ttro NO.: 10 - SQ-`0 : CIVIL TERM NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 4q a, oo P0 A7" 717-249-3166 C 9 as(/ p,* ayl, loy i LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defende se de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de partir de la fecha de la demanda y la notifcacion. Usted debe presentar una apariencia escrita o en persona o por abodago y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y peude entrar una orden contra usted sin previo adviso o notificacion y por cualquier queja o alivio-que es pedido en la peticion de demanda . Usted puede perder dinero o sus propiedades o ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENT ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 Rob Bleecher, Esquire PA ID No.: 32594 Pecht & Associates, PC 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 Attorneys for Plaintiffs JAMES G. KNISELY and IN THE COURT OF COMMON PLEAS OF CAROLINE L. KNISELY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. No. MILLER & NORFORD, INC., CIVIL TERM d/b/a MILLER & NORFORD,; and RYAN SILVAGIO, individually, and in his capacity as Officer and Director; COMPLAINT AND NOW, come the Plaintiffs by and through their attorneys Pecht & Associates, PC and allege in support of their claims: PARTIES 1. Plaintiffs are adult individuals and are owners of the Knisely Garden Center, located at 19 Enola Drive, Enola, Cumberland County, Pennsylvania 17025. Further, Plaintiffs are the owners of that certain parcel of real estate located at 19 Enola Drive, Enola Drive, Cumberland County, Pennsylvania 17025. 2. Defendant Miller & Norford, Inc. is believed to be, and at all times material and relevant hereto, was a Pennsylvania corporation engaged in the business of constructing buildings as general contractor for commercial purposes. At all times material and relevant hereto Defendant Miller & Norford, Inc. operated from an address of 700 Ayers Avenue, Lemoyne, Pennsylvania, 17043. 3. Defendant Miller & Norford, Inc. is believed to have operated under various fictitious names during the relevant times in question including "Miller & Norford," and "All Kinds of Construction," and at various other times operated under the name "Miller & Norford Construction, LLC," and other unknown names. 4. Defendant Ryan Silvagio is an adult individual and is believed to have been at all times material and relevant hereto a Pennsylvania resident and the President and sole shareholder of Defendant Miller & Norford, Inc. JURISDICTION AND VENUE 5. Jurisdiction and venue are proper in this Court as the transactions and occurrences giving rise to the Plaintiffs' cause of action took place in Cumberland County, Pennsylvania. FACTS 6. On or about July 2008, Plaintiffs entered into a written contract with Defendant Miller & Norford, Inc. (a copy of said contract is attached as Exhibit "A" and is incorporated herein by reference) pursuant to a bidding process conducted through the architectural firm of Willigerod & MacAvoy Architects, P.C. (hereinafter "W&A") 7. As a condition of the contract between the parties, Defendant Miller & Norford, Inc. agreed to purchase a bond (performance and/or payment) in the amount of $529,368.00 for a premium of $6,068.00. 8. However, Defendant Miller & Norford, Inc. failed to obtain the necessary bond to protect the Plaintiffs and failed to inform Plaintiffs that a bond had not been obtained. Consequently, Plaintiffs were subjected to increased and unreasonable and substantial 2 risks in the event of nonpayment of the subcontractors by Defendant Miller & Norford, Inc. 9. In fact, Defendant Miller & Norford, Inc. failed to pay at least three (3) subcontractors resulting in mechanics' liens being filed against Plaintiffs' property. 10. Defendant Miller & Norford attempted to obtain a bond but failed. Defendant did not inform Plaintiff that a bond was not obtained until April 15, 2009. 11. By April 15, 2009, substantially all work on the project had been performed. 12. W & A's agent, Michael Martin, advised Defendant Miller & Norford, Inc. by letter of July 8, 2008, that a bond needed to be obtained under the terms of the contract. 13. The name Miller & Norford, Inc. is a brand that had been in existence since 1957. Defendant Miller & Norford, Inc. used that brand to misrepresent the fact that in 2007 the company was sold to Defendant Ryan Silvagio for an unknown consideration. 14. It is believed, and therefore averred, that Ryan Silvagio was inadequately capitalized to operate the company safely. 15. Further, it is believed, and therefore averred, that all of the Defendants withheld pertinent financial and ownership information from the Plaintiffs in order to prevent Plaintiffs from discovering that there was new ownership of Miller & Norford, Inc. and that the new ownership had inadequate capitalization. 16. On or about April 15, 2009, Plaintiffs discovered that Defendant Miller & Norford, Inc. did not obtain a bond as required by the contract and as Defendants had represented that they would; further, that Defendants did not require the subcontractors to sign a Stipulation Against Liens; and, further, did not file a Stipulation Against Liens. 3 17. Moreover, on or about July 2009, Plaintiff discovered that Defendant Miller & Norford, Inc. had not paid its subcontractors the amounts owed to the subcontractors by Defendant Miller & Norford, Inc. for work done by those sub-contractors on Plaintiffs' property at 19 Enola Drive, Enola, Pennsylvania. 18. On or about September 11, 2009, Plaintiffs received a notice of Mechanics' Liens filed by George Brown & Son Glass Work, Inc.; on or about August 14, 2009, Plaintiffs received notice of the filing of a Mechanics' Lien by Richard Krall, Inc.; and on July 9, 2009, Plaintiffs received notice of the filing of a Mechanics' Lien by Robert H. Kepler Masonry Contractor, Inc., all subcontractors of Defendants. COUNT I - BREACH OF CONTRACT MILLER & NORFORD, INC. 19. All preceding paragraphs are incorporated by reference as though fully set forth herein. 20. Defendant Miller & Norford, Inc. has breached the contract between itself and Plaintiffs by failing to comply with the terms of that Agreement, including failing to pay all subcontractors for the work performed by the subcontractors; failing to purchase a Payment and Performance Bond; failing to require that the subcontractors sign the Stipulation Against Liens; and failing to file the said Stipulation Against Liens. 21. The breaches of contract by Defendant Miller & Norford, Inc. were material. 22. The breaches by Defendants Miller & Norford, Inc. were the direct and factual cause of the loss and harm to Plaintiffs and the conduct of Defendants was the proximate cause of the injury to Plaintiffs. 4 WHEREFORE, Plaintiffs request this Honorable Court find for the Plaintiffs and against the Defendants in the amount of Fifty Six Thousand Dollars ($56,000), plus interest and costs, plus such other relief as this Court deems just and proper. COUNT II - BREACH OF CONTRACT- RYAN SILVAGIO. INDIVIDUALLY ALTER EGO 23. All preceding paragraphs are incorporated by reference as though fully set forth herein. 24. Defendant Ryan Silvagio, as sole shareholder and as President of the corporation, exercised complete domination of the corporation with respect to the use of corporate funds. 25. Defendant Ryan Silvagio used that control to commit a wrong by failing to pay sub-contractors the monies earned by them and payable to them resulting in Mechanics Liens being filed by them against the Plaintiffs' real property. 26. Defendant Ryan Silvagio used that control to use corporate funds for his own personal purposes including spending corporate funds on food, liquor, bicycles, real estate and other as yet unknown and improper items. 27. It is believed, and therefore is averred, that Defendant Ryan Silvagio failed to maintain the corporate formalities required by law in Pennsylvania. 28. As a consequence of the improper and wrongful use of corporate funds for his own personal purposes, Defendant Ryan Silvagio breached his duty under the contract with Plaintiffs to use the money paid by Plaintiffs to pay the subcontractors their rightful compensation for their products and services. 5 29. The conduct of Defendant Ryan Silvagio was the direct and factual cause of the losses suffered by Plaintiffs. 30. The improper and wrongful use of corporate funds by Defendant Ryan Silvagio for his personal purposes was the proximate cause of the injury to Plaintiffs. WHEREFORE, Plaintiffs request this Honorable Court pierce the corporate veil and find for the Plaintiffs and against the Defendant Ryan Silvagio, individually, in the amount of Fifty Six Thousand Dollars ($56,000), plus interest and costs, plus such other relief as this Court deems just and proper. COUNT III- BREACH OF CONTRACT RYAN SILVAGIO. INDIVIDUALLY UNDERCAPITALIZATION 31. All preceding paragraphs are incorporated by reference as though fully set forth herein. 32. Defendant Ryan Silvagio, as sole shareholder and as President of the corporation, failed to capitalize the Defendant Miller & Norford, Inc. adequately to pay its expenses as they came due. 33. As a consequence of Defendant Ryan Silvagio's failure to capitalize the company adequately, there was insufficient money to pay all of the subcontractors which was the direct and factual cause of the Mechanics Liens being filed against the Plaintiffs' property. 34. The conduct of Defendant Ryan Silvagio was the proximate cause of the losses suffered by Plaintiffs. 6 35. It is believed, and therefore is averred, that Defendant Ryan Silvagio failed to maintain the corporate formalities required by law in Pennsylvania to protect shareholders from personal liability for the liabilities of the corporation. WHEREFORE, Plaintiffs request this Honorable Court pierce the corporate veil and find for the Plaintiffs and against the Defendant Ryan Silvagio, individually, in the amount of Fifty Six Thousand Dollars ($56,000), plus interest and costs, plus such other relief as this Court deems just and proper. COUNT IV-FRAUD MILLER & NORFORD, INC., AND RYAN SILVAGIO INDIVIDUALLY AND AS OFFICER AND SHAREHOLDER OF MILLER & NORFORMINC. 36. All of the preceding paragraphs are incorporated by reference as if fully set forth herein. 37. Defendants Miller & Norford, Inc. and Ryan Silvagio knew that a Payment and Performance Bond was not obtained and Stipulations Against Liens were never signed and filed as required by the terms of the contract with Plaintiffs. 38. Defendants never informed Plaintiffs that the Bond was not obtained and Stipulations Against Liens were never signed and filed until substantially all of the work had been performed. 39. The failure of Defendants to inform Plaintiffs of this fact was a misrepresentation and a non-disclosure of a material fact, about which Defendants knew Plaintiffs had a right to know. 40. Defendants acted with knowledge of the significance of the information it withheld and of its wrongdoing in withholding that information. 7 41. Plaintiffs justifiably relied to their detriment on Defendants' representation in the Contract that it would obtain the Payment and Performance Bond, and that it would file the Stipulations Against Liens and were harmed as a direct and proximate result of the misrepresentation and non-disclosure. 42. Plaintiffs were injured by these misrepresentations. 43. Plaintiffs have been injured by the fraudulent conduct of Defendants. 44. The conduct of Defendants was the cause in fact and the proximate cause of Plaintiffs' injuries. 45. Defendants acted with wanton and reckless disregard for the Plaintiffs well being. 46. Defendants actions were intentional and/or reckless. 47. Punitive damages are warranted in this case. WHEREFORE, Plaintiffs request this Honorable Court find for the Plaintiffs and against the Defendant in the amount of Fifty Six Thousand Dollars ($56,000), plus interest and costs, plus punitive damages, plus attorneys fees, and such other relief as this Court deems just and proper. Date: 2 a J70 Respectfully submitted, PECHT & P.C. By: Rob Bleec uire PA I.D. No.: 32594 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 Attorney for Plaintiffs 8 VERIFICATION I, JAMES G. KNISELY, the Plaintiff herein, state that the averments contained in the foregoing pleading are true to the best of my knowledge, information and belief. Further, I am aware that any false statements made herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: I IQ 4?v O 9 VERIFICATION I, CAROLINE L. KNISELY, the Plaintiff herein, state that the averments contained in the foregoing pleading are true to the best of my knowledge, information and belief. Further, I am aware that any false statements made herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. 1X96110 Date: CAROLINE L. KNISELY 10 #rA1A Document A101" - 2007 Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum A43REEMENT made as of the Eleventh day of July in the year Two Thousand Eight (In words, indicate day, month and year) BETWEEN the Owner: (Name, address and other information) Knisely Land Sculpting, Inc. 3822 Palmy Drive Mechanicsburg, PA 17055 and the Contractor: (Name,' address and other information) Miller & Norford, Inc. 700 Ayers Avenue Urnoyne, PA 17043 for the following Project: {Name, location, and detailed description) New Facility for KniSely Land Sculpting 19 North tnola Road, Past Pennsboro Township, Cumberland County, Enola, Pennsylvania Architect's Project No. P0713A ' The Architect, (Name, address and other information)' Willigerod & Mac Array Architects, P.C. 2223 North Second Street Harrisburg; Pennsylvania 17110 The Owner and Contractor agree as follows. a EXHIBIT ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. AIA Document A201 TM-2007, General Conditions of the Contract for Construction, is adopted in this document by reference. Do not use with other general conditions unless this document is modified. AIA Document A11011m - 2007. Copyright ®1915,1918, 1925,1937, 1951, 1958,1961,1963,1967, 1974, 1977, 1987,1991,1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA° Document Is protected by US. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AW Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 11:08:05 on 07/11/2008 under Order No.1000349875_1 which expires on 4124/2009, and is not for resale. User Notes: (1135548391) TABLE OF ARTICLES I THE CONTRACT DOCUMENTS 2 THE WORK OF THIS CONTRACT 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION ONTRACT SUM 'AYMENTS IISPUTE RESOLUTION 'ERMINATION OR SUSPENSION INSURANCE AND BONDS DOCUMENTS ARTICLE 1 THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement, all of which form the Contract, and are as fully a part of the Contract` as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Contract Documents, other than a Modification, appears in Article 9. ARTICLE 2 THE WORK OF THIS CONTRACT The Contractor shall fully execute the Work described in the Contract Documents, except as specifically indicated in the Contract Documents to be the responsibility of others. ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION § 3.4 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the Owner. f Insert the date of commencement if it differs from the date of this Agreement or, if applicable, state that the date will be fixed in a notice to proceed) I The date of commencement shall be upon a notice to proceed by the Owner or Owner's Agent if that date is before the date' of this agreement. If, prior to the commencement of the Work, the Owner requires time to file mortgages and other security interests, the Owner's time requirement shall be as follows: N/A § 3.2 The Contract Time shall be measured from the date of commencement. (' § 3.3 The Contractor shall achieve Substantial Completion of the entire Work not later than One Hundred Eighty (180) days from the date of commencement, or as follows: (Insert number of calendar days. Alternatively, a calendar date may be used when coordinated with the date of commencement. If appropriate, insert requirements for earlier Substantial Completion of certain portions of the Work.) AIA Document A101 TN -2007. Copyright ®1915, 1918, 1925, 1937, 1951, 1958,1961, 1963, 1987, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIAs Document Is protected by U.S. Copyright Lew and International Treaties. Unauthorized 2 reproduction or distribution of this AIAe Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by ALA software at 11:08:05 on 07/11/2008 under Omer No.1000349875_1 which expires on 4/24/2009, and is not for resale. User Notes: (1135548391) Portion of Work Substantial Completion Date subject to adjustments of this Contract Time as provided in the Contract Documents. (Insert provisions, if any, for liquidated damages relating to failure to achieve Substantial Completion on time or for bonus payments for early completion of the Work.) 'ICLE 4 CONTRACT SUM 1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance of the tract. The Contract Sum shall be Five Hundred Twenty-Nine Thousand Three Hundred Sixty-Eight Dollars and Cents ($529,368.00), subject to additions and deductions as provided in the Contract Documents. ?:a. acFernat 4.3 U (Identif I' $523,300.00 t Bondi $ 6,068.00 $529,368.00 i upon the following alternates, if any, which are described in the Contract Documents Owner: nti fication of accepted alternates. If the bidding or proposal documents permit the is subsequent to the execution of this Agreement, attach a schedule of such other for each and the date when that amount expires.) 2nd state the unit price; state quantity limitations, if any, to which the unit price will be applicable.) horn Units and Limitations Price Per Unit Bulk Rock Excavation Cubic Yard $220.00 french Rock Excavation Cubic Yard $220.00 7wances included in the Contract Sum, if any: (raentyy allowance and state exclusions, if any, from the allowance price.) Item Price I Light fixtures and lamps. Materials only $5,000.00 at contractor's discount price. ARTICLE 5 PAYMENTS 5.1 PROGRESS PAYMENTS 5.1.1 Based upon Applications for Payment submitted to the Architect by the Contractor and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. § 51.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: § 5.1.3 Provided that an Application for Payment is received by the Architect not later than the first (0) day of a month; the Owner shall make payment of the certified amount to the Contractor not later than the thirtieth (30`s) day of the same month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the Owner not later than thirty (30) days after the Architect receives the Application for Payment. (Federal, state or local laws may require payment within a certain period of time.) AIA Document A101 TM -2007. Copyright ®1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1987, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIAs Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAe Document, or any portion of ft, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 11:08:05 on 07/11/2008 under Order No. 10003498751 which expires on 4/24/2009, and is not for resale. User Notes: (1135548391) § 5.1.4 Each Application for Payment shall be based on the most recent schedule of values submitted by the Contractor in accordance with the Contract Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment. § 5,1.5 Applications for Payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. § 5.1.7 follows determined in accordance with Section 5.1.6 shall be further modified under the Substantial Completion of the Work, a sum sufficient to increase the total payments to the t of the Contract Sum, less such amounts as the Architect shall determine for incomplete inage applicable to such work and unsettled claims; and 8.5 of AIA Document A201-2007 requires release of applicable retainage upon Substantial t of Work with consent of surety, if any.) Il completion of the Work is thereafter materially delayed through no fault of the Contractor, any additional' amounts payable in accordance with Section 9.10.3 of AIA Document A201-2007. § 5.1.8 Reduction or limitation of retainage, if any, shall be as follows: (If it is intended, prior to Substantial Completion of the entire Work, to reduce or limit the retainage resulting from the percentages inserted in Sections 5.1.6.1 and 5.1.6.2 above, and this is not explained elsewhere in the Contract Documents, insert here provisions for such reduction or limitation.) At the time the Work is fifty percent (50%) complete, and thereafter, if the manner of the completion and its progress are and remain satisfactory to the Owner and in the absence of other good and sufficient reasons, the. Owner will authorize a reduction in retainage from ten percent (10%) to five percent (5%) of the value of the Work completed. Owner reserves the right to restore retainage to ten percent (10%) of the Contract Sum as is necessary to protect Owner against claims or if the Work is unsatisfactory to the Owner. § 5.1.9 Except with the Owner's prior approval, the Contractor shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. 5.2 FINAL PAYMENT § 5.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when .1 the Contractor has fully performed the Contract except for the Contractor's responsibility to correct Work as provided in Section 12.2.2 of AIA Document A201-2007, and to satisfy other requirements, if any, which extend beyond final payment; and AIA Document A101^" -2007. Copyright ®1915, 1918, 1925,1937, 1951, 1958, 1981, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Lew and International Treaties. Unauthorized 4 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 11:08:05 on 07/1112008 under Order No.100034987b 1 which expires on 4/24/2009, and is not for resale. User Notes: (1135548391) of the Contract Documents, the amount of each progress payment shall be of the Contract Sum properly allocable to completed Work as determined by ;rcentage completion of each portion of the Work by the share of the Contract Sum ortion of the Work in the schedule of values, less retainage of ten percent (10%). xmination of cost to the Owner of changes in the Work, amounts not in dispute shall ovided in Section 7.3.9 of AIA Document A201TM-2007, General Conditions of the of the Contract Sum properly allocable to materials and equipment delivered and the site for subsequent incorporation in the completed construction (or, if approved in )wner, suitably stored off the site at a location agreed upon in writing), less retainage gate of previous payments made by the Owner; and if any, for which the Architect has withheld or nullified a Certificate for Payment as n 9.5 of AIA Document A201-2007. .2 a final Certificate for Payment has been issued by the Architect. 6.2.2 The Owner's final payment to the Contractor shall be made no later than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows: ARTICLE 6 DISPUTE RESOLUTION 6.1 INITIAL DECISION MAKER The Architect willserve as Initial Decision Maker pursuant to Section 15.2 of AIA Document A201-2007, unless the parties appoint below another individual, not a party to this Agreement, to serve as Initial Decision Maker. (If the parties mutually agree, insert the name, address and other contact information of the Initial Decision Maker, if other than the Architect..) 62 BINDING 'DISPUTE RESOLUTION For any Claim subject to, but not resolved by, mediation pursuant to Section 15.3 of AIA Document A201-2007, the method of binding dispute resolution shall be as follows: (Check the appropriate bax, If the Owner and Contractor do not select a method of binding dispute resolution below, or do not subsequently' agree in writing to a binding dispute resolution method other than litigation, Claims will be resolved by litigation in a court of competent jurisdiction.) [ X J Arbitration pursuant to Section 15.4 of AIA Document A201-2007 [ J Litigation in a court of competent jurisdiction [ ] Other (Specify) ARTICLE 7 TERMINATION OR SUSPENSION § T The Contract may be terminated by the Owner or the Contractor as provided in Article 14 of AIA Document A201-2007 7.2 The Work may be suspended by the Owner as provided in Article 14 of AIA Document A201-2007. ARTICLE 8 MISCELLANEOUS PROVISIONS § &I Where reference is made in this Agreement to a provision of AIA Document A201-2007 or another Contract Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. § 8.2 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. '(Insert rate of interest agreed upon, if any.) Prime rate asset forth in the Money Section of The Wall Street Journal as of the date of execution of this Agreement. 8.3 The Owner's representative: (Name, address and other information) I Janet Young J. Rittner Young Management Company zzfz is owtner mro Lemoyne, PA 1A Phone: (717) 774 AIA Document A101 re - 2007. Copyright ®1915,1918, 1925, 1937, 1951, 1958, 1981, 1963, 1987, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIAs Document is protected by US. Copyright Law and International Treaties. Unauthorised reproduction or distribution of this AIAs Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 11:08:05 on 07/11/2008 under Order No. 10003498751 which expires on 4/24/2009, and is not for resale. User Notes: (1135548391) .4 The Contractor's representative: me address and other information) §. 0.5 other § 8,6 AIRTI t 9.1 r & Norford, Inc. kyers Avenue yne, PA 17043 ;: (717) 763-7014 Neither the Owner's nor the Contractor's representative shall be changed without ten days written notice to the party- Other provisions: CLE 0 ENUMERATION OF CONTRACT DOCUMENTS The Contract Documents, except for Modifications issued after execution of this Agreement, are enumerated in the sections betow. § 0A.1 The Agreement is this executed AIA Document A101-2007, Standard Form of Agreement Between Owner and Contractor, § 9.1.2 The General Conditions are AIA Document A201-2007, General Conditions of the Contract for Construction. 9.1.3 The Supplementary and other Conditions of the Contract: Title Pages Supplementary General Conditions (in specifications) 1-7 § 9.1.4 The Specifications: (Either list the Specocations here or refer to an exhibit attached to this Agreement.) Allcontents of the specification manual entitled "Specifications for New Facility for Knisely Land Sculpting", 19 North Enola Road, Eaola, East Penusboro Township, Cumberland County, Pennsylvania, dated June 16, 2008. (Table deleted) § 9.1.5 The Drawings: (Either list the Drawings here or refer to an exhibit attached to this Agreement.) Number Title Date Civil Engineering 1 of 6 Cover Sheet 6-10-08 2 of 6 Existing Features Plan 4-16-07 3 of 6 Site Plan 6-10-08 4 of 6 Grading/Utility Plan 6-10-08 5 of 6 Erosion & Sediment Control Plan 6-10-08 6 of 6 Details 6-10-08 Information CS1.00 Cover/Information Sheet 6-16-08 Architectural ALGO A101 A2.00 A2.01 A2.02 A3.00 A4.00 Floor Plan Roof Plan, Details, Toilet Rooms Elevations Wail Sections & Details Wall Sections & Details Window, Door, & Finish Schedules, & Millwork Reflected Ceiling Plan 6-16-08 6-16-08 6-16-08 6-16-08 6-16-08 6-16-08 6-16-08 AIA Document A101 Tr -2007. Copyright ®1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991,1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treatise. Unauthorized reproduction or distribution of this A10 ° Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 6 maximum extent possible under the law. This document was produced by AIA software at 11:08:05 on 07/11/2008 under Order No.1000349875_1 which expires on 4/24/2009, and is not for resale. User Notes: (1135548391) Structural S1.00 Foundation Plan, Details & Schedules S1.01 Second Floor & Roof Framing Plans Mechanical & Electrical - Design/Build Scopes of Work M1.00 HVAC Plan P1.00 E1.00 E1.01 9.1.6 The Addenda, if any: Number Addendum #1 Addendum #2 Portions of Addenda relating to requirements are also enumeratA Plumbing Plan Electrical Switching Plan Electrical Power Plan Date June 24, 2008 July 2, 2008 Pages 1-5 6-16-08 6-16-08 6-16-08 6-16-08 6-16-08 6-16-08 dding requirements are not part of the Contract Documents unless the bidding in this Article 9. §. 9.1.7 Additional documents, if any, forming part of the Contract Documents: .1 AlA DocumentE20lTm-2007, Digital Data Protocol Exhibit, if completed by the parties, or the following: .2 Other documents, if any, listed below: f l ist here any additional documents that are intended to form part of the Contract Documents. AM Document A201-2007 provides that bidding requirements such as advertisement or invitation to bid, Instructions to Bidders, sample forms and the Contractor's bid are not part of the Contract Documents unless enumerated in this Agreement. They should be listed here only if intended to be part of the Contract Documents.) Title Date Pages Proposal Form July 3, 2008 1-3 Letter to Mike Martin from Brian Enterline July 9, 2008 1 ARTICLE 10 INSURANCE AND BONDS The Contractor shall purchase and maintain insurance and provide bonds as set forth in Article 11 of AIA Document A201-2007. (State bonding requirements, if any, and limits of liabilityfor insurance required in Article 11 of AIA Document A201-2007.) Type of insurance or bond Workmen's Compensation Contractor's Public Liability: Personal Injury Property Damage Contractor's Contingent Liability: Personal Injury Property Damage Automobile Public Liability Personal Injury Limit of liability or bond amount ($ 0.00) Statutory $500,000/$1,000,000 $100,000/$200,000 $1,000,000 $100,000/$200,000 $1,000,000 AIA Document A101 TM -2007. Copyright ©1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991,1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAe Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum eutent possible under the law. This document was produced by AIA software at 11:08:05 on 07/11/2008 under Order No.1000349875_1 which expires on 4/24/2009, and is not for resale. User Notes: (1135548391) :ulpting, Inc. CONTRA TOR: ilier & Norford, inc. (Si ur nt Ryan J. Silvagio, President (Printed name and title) c a AIA Document A101TM - 2007. Copyright ®1915,1918, 1925,1937,1951,1968,1961, 1963,1967,1974,1977, 1987,1991,1997 and 2007 by The American Institute of Architects. Ali rights reserved. WARNING: This AIAe Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 8 reproduction or distribution of this AIAs Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 11:08:05 on 07/11/2008 under Order No. 10003498751 which expires on 4/24/2009, and is not for resale. User Notes: (1135548391) Property Damage $100,000 each occurrence Performance & Payment Bond Full coverage of all contracted amounts under this contract. (Included in contract amount) This Agreement entered into as of the day d year first written above. SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~;,, ~t ~a~,~f.~,~ Jody S Smith Chief Deputy Richard W Stewart Solicitor James G. Knisely vs. Ryan J. Silvagio (et al.) ~~ ~t ~~~' ~ ~, r~~~~ ~~' Q~~~J~~.~ ~ ~~ Case Number 2010-5270 SHERIFF'S RETURN OF SERVICE 08/12/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Miller & Norford, Inc. d/b/a Miller & Norford, but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of York County, PA to serve the within Complaint and Notice according to law. 08!12/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Ryan Silvagio, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of York County, PA to serve the within Complaint and Notice according to law. 09/01/2010 10:00 AM -York County Return: And now September 1, 2010 at 1000 hours I, Richard P. Keuerleber, Sheriff of York County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Ryan J. Silvagio by making known unto himself personally, at 470 Ofd York Road, New Cumberland, PA 17070 its contents and at the same time handing to him personally the said true and correct copy of the same. 09/01/2010 10:00 AM -York County Return: And now September 1, 2010 at 1000 hours I, Richard P. Keuerleber, Sheriff of York County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Miller & Norford, Inc. by making known unto Ryan J. Silvagio, adult in charge at 470 Old York Road, New Cumberland, PA 17070 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $53.00 September 13, 2010 SO ANSWERS, RON ~ R ANDERSON, SHERIFF t ~~~ ~n , ~ _,. SHERIFF'S OFFICE OF YORK COUNTY Richard P Keuerleber PETER J. MANGAN, ESQ. Sheriff;~~'~~ Solicitor Reuben B Zea er ~~-',./` 9 Richard E Rice, II Chief Deputy, Operations "'~ ., Chief Deputy, Administration JAMES G. KNISELY vs. Case Number MILLER & NORFORD, INC. (et al.) 10-5270 CIVIL SHERIFF'S RETURN OF SERVICE 09/01/2010 10:00 AM -DEPUTY MATTHEW KERR, BEING DULY SWORN ACCORDING TO LAW, SERVED THE REQUESTED COMPLAINT IN CIVIL ACTION (CICA) BY "PERSONALLY" HANDING A TRUE COPY TO A PERSON REPRESENTING THEMSELVES TO BE THE DEFENDANT, TO WIT: RYAN SILVAGIO AT 470 OLD YORK ROAD, FAIRVIEW TOWNSHIP, NEW CUMBERLAND, PA 17070. --~ MA 'THEW KERR, DEPUTY 09/01/2010 10:00 AM -DEPUTY MATTHEW KERR, BEING DULY SWORN ACCORDING TO LAW, SERVED THE REQUESTED COMPLAINT IN CIVIL ACTION (CICA) BY HANDING A TRUE COPY TO A PERSON REPRESENTING THEMSELVES TO BE RYAN SILVAGIO, WHO ACCEPTED AS "ADULT PERSON IN CHARGE" FOR MILLER & NORFORD, INC. AT 470 OLD YORK ROAD, FAIRVIEW TOWNSHIP, NEW CUMBERLAND, PA 17070. ~~'~.... MA "THEW KERR, DEPUTY SHERIFF COST: $51.00 September 08, 2010 Affirmed and subscribed to before me this SO ANSWERS, RICHARD P KEUERLEBER, SHERIFF N OTA RY 8~ day of SEPTEMBER 2010 ccn+rti~,cN~r~~HLTH of rENVSY~vaNla ,.. i /J % .^:, r,r; SSA ~ TMORPE. hO7ARY PUBLIC ~~~~ i~/~ ~` '`)/t~~ - GI i ~ 0~ "0~2K YORK COI~NTY r ~/-~ /~ ~ /(J) ?~ ~1`il . ~'1t~1'~SS Lh EXPIRESA:,'_G. 12, 2013 'r Rob Bleecher, Esquire PA 32594 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, Pik 17055 717-691-9809 A++....«o<. - .. D1-;-i;FCa JAMES G. KNIS tLY and CAROLYN L. KNISELY, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-5270 VS. MILLER & NORFORD, INC., d/b/a MILLER & NORFORD; and RYAN SILVAGIO, individually, and in his capacity as Officer and Director, Defendants PRAECIPE TO ENTER JUDGMENT BY DEFAULT TO THE PROTHONOTARY: CD -,j 'C 7) , - l -Y, ti Please enter Judgment by Default in favor of Plaintiffs, James G. Knisely and Carolyn L. Knisely, and against Defendants, Miller & Norford, Inc., d/b/a Miller & Norford; and Ryan Silvagio, individually, and in his capacity as Officer and Director, for their failure to plead to the Complaint in this action within the required time. The Complaint contains a Notice to Defend within twenty (20) days from the date of service thereof. Defendants were served with the Complaint on September 1, 2010, and their Answer was due to be filed on September 21, 2010. Defendants have not filed an Answer to the Complaint. Pursuant to Pa.R.C.P. 237.1 Notice of Intention to File a Praecipe to Enter Judgment was given to Defenda> is on September 22, 2010 and attached as Exhibit "A". I certify the Notice was mailed by United States First Class mail to Defendants, Miller & Norford, Inc., d/b/a Miller & 4141-too3u- 414--l c0 .2sYB A)ALe- .???l?C ' s Norford and Ryan, Silvagio, individually, and in his capacity as Officer and Director, on September 22, 2010, which is at least ten (10) days prior to the filing of this Praecipe and said notice was not returned by the post office. I am not aware of any attorney having entered an appearance of record on behalf of Defendants. Please assess damages in the amount of $56,000, plus interest at the legal rate of six percent (6%), which is the standard interest rate. Please assess costs in the amount of $196.00 for the filing and service of the Complaint, plus $14.00 as the fee for filing this Praecipe, plus attorney fees of $2,025.00. Respectfully submitted, PECHT & ASSOCIATES, PC Dated: October 5, 2010 By: RoYBleecher, Esquire A rney I.D. No. 32594 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 717-691-9809 office Attorneys for Defendants Rob Bleecher, Esquire PA ID No.: 32594 Pecht & Associatep, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PEA 17055 (717) 691-9809 Attornevs for Plaintiffs JAMES G. KNIS ?LY and CAROLINE L. KNISELY, Plaintiffs v. MILLER & NOOORD, INC., d/b/a MILLER & NORFORD; and RYAN SILVAGIO, individually, and in his capacity as Od[cer and Director, Defendants To: Ryan Silvagio 470 Old Yolk Road New Cumberland, PA 17070 Date: September! 22, 2010 IN THE COURT OF COMMON PLEAS OF -- CUMBERLAND COUNTY, PENNSYLVANIA No. 10-5270 CIVIL TERM NO'T'ICE OF PRAECIPE TO ENTER JUDGMENT OF NON PROS YOU ARIE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OIL THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A ARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LA R OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 PECHT & By: EXHIBIT .TES, PC b Bl ec r, Esquire iy Q tGga?oaoaa # RG U 1 JAW O N O ti Q T3 CL 0 C c 0.0 ? E G ? U Uo CD, LO CA N LO F" V- Q Q t j N CL. 00rn = o L ? V CL t Rob Bleecher, Esquire PA ID No.: 32594 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 Attorneys for Plaintiffs JAMES G. KNIS LY and CAROLINE L. KIUSEIX, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 10-5270 MILLER & NORFORD, INC., d/b/a : CIVIL TERM MILLER & NORFORD; and RYAN SILVAGIQ, individually, and in his capacity as Officer and Director, Defendants To: Miller & Norford, Inc., d/b/a Miller & Nouford 470 Old York Road New Cumbe#land, PA 17070. Date: September 22, 2010 NONCE OF PRAECIPE TO ENTER JUDGMENT OF NON PROS YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED- TO TAKE ACTION REQUIRED OF 'SOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF' THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A G AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU HOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LA R OR. CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 X), PE( By: i i .ter i0 uo G (COY 13? _V N 0 ? o ? r- V Q CL 0 -0 (a 0 000-n ZZ? E od a? a? O 3 Uo CL N to N FW- 4 v a? cn ° Q o Drs C i U UJ W N n. Rob Bleecher, Esquire PA 32594 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 717-691-9809 JAMES G. KNISELY and CAROLYN L. KNISELY, Plaintiffs VS. MILLER & NOWORD, INC., d/b/a MILLER & NORFORD; and RYAN SILVAGiO, individually, and in his capacity as Officer and Director, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-5270 NOTICE OF FILING JUDGMENT (X) Notice is hereby given that a judgment in the above-captioned matter has been entered against you in the amount of $56,000.00 on ( ) A copy of all documents filed with the Prothonotary in su of e within judgment vm* is/are enclosed. Prothonotary Civil Division By: If you have any questions regarding this Notice, please contact the filing party: Rob Bleecher, Esquire Pecht & Associates, P.C. 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 (This Notice is given in accordance with Pa.R.C.P. 236) NOTICE SENT TO: Ryan Silvagio 470 Old York Road New Cumberlan , PA 17070 Rob Bleecher, Enquire PA 32594 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 717-691-9809 JAMES G. KNI ELY and IN THE COURT OF COMMON PLEAS CAROLYN L. KNISELY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 10-5270 VS. MILLER & NORFORD, INC., d/b/a MILLER & NORFORD; and RYAN SILVAGIO, individually, and in his capacity as Officer and Director, Defendants NOTICE OF FILING JUDGMENT (X) Notice is hereby given that a judgment in the above-captioned matter has been entered against you in the amount of $_56,000.00 on oc,4- ?_I :101 C? A copy of all documents filed with the Prothonotary in support of the within judgment is/are enclosed. If you have any questions regarding this Notice, please contact the filing party: Rob Bleecher, Esquire Pecht & Associates, P.C. 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 (This Notice is given in accordance with Pa.R.C.P. 236) NOTICE SENT TI O: Miller & Norford, Inc., d/b/a Miller & Norford 470 Old York Rdad New Cumberlan A, PA 17070