HomeMy WebLinkAbout04-3558LFGC, INC.,
Plaintiff
V.
ATLANTIC MINIATL RE GOLF,
LLC,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04- 35-CIVIL TERM
JURY TRIAL DEMANDED
NOTICE
You have been sued in Court. If you wish to defend against the claims set forth in
the following pages, you must take action within twenty (20) days after the pleadings and
Notice are served, 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 pleadings or for any other claim of 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 OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
Telephone: (717) 249-3166
WAYNE F. SHADE
Wayn F. Shade, Esquire
Supreme Court No. 15712
53 West Pomfret Street
Carlisle, Pennsylvania 17013
Telephone: 717-243-0220
Attorney at Law
Si West Pomfret Street Attorney for Plaintiff
Carlisle, Pennsylvania
17013
LFGC, INC., : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
V.
NO. 04- 3Ss CIVIL TERM
ATLANTIC MINIATL RE GOLF,
LLC.
Defendant : JURY TRIAL DEMANDED
COMPLAINT
1.
Plaintiff LFGC, [NC. (hereinafter "LFGC) is a corporation organized and existing
under the laws of the Commonwealth of Pennsylvania, with its main office located at
3425 Simpson Ferry Road, Camp Hill, Cumberland County, Pennsylvania 17011.
2.
Defendant ATLANTIC MINIATURE GOLF, LLC (hereinafter "Atlantic") is a
limited liability company organized and existing under the laws of the Commonwealth of
Virginia with its principal place of business located at 801 Orapax Avenue, Norfolk,
Virginia 23507.
3.
On or about Ma} 6, 2003, the parties entered into a written Agreement for the
construction by Defendant of a miniature golf course on the real estate of Plaintiff in
Cumberland County, Pennsylvania. A copy of said Agreement is attached hereto as
WAVNP. F. SHAH Exhibit "A" and incorporated herein by reference as though fully set forth.
Attorney at Caw
53 West Pomfret Street
Carlisle, Pennsylvania
17013
4.
The Agreement was drafted by Atlantic.
5.
The Agreement did not provide for a date by which construction would have been
required to commence.
6.
The Agreement permitted LFGC to establish the date for commencement of
construction by written notice to proceed.
7.
The designation of Mike Codman as the foreman for the project was specified in
the Agreement by LFGC because it was an important and material provision to LFGC.
8.
At all times pertinent to these proceedings, including the verification and filing by
Atlantic of the Complaint in a separate mechanics' lien action docketed in this court to
No. 04-1930 MLD, Atlantic has misrepresented to LFGC that Mike Codman was
employed by Atlantic.
9.
Plaintiff believes and therefore avers that Mike Codman has never been an
employee of Atlantic.
WAYNE F. SHADE
Attorney at Law
53 West Pomfret Street
Carlisle, Pennsylvania
17013
-2-
10.
Plaintiff believe,; and therefore avers that Mike Codman has always been an
independent contractor in his dealings with Atlantic.
11.
Atlantic further misrepresented to LFGC that Mike Codman was unavailable to
construct the project because he had left the business of miniature golf course
construction at the insistence of his wife who objected to his traveling.
12.
When it became necessary for LFGC to engage another contractor because
Atlantic had not completed the project by 112 days after the contractual completion date,
LFGC's research revealed that Mike Codman was an independent contractor who had
never left the business of miniature golf course construction.
13.
Mike Codman simply refused to take further projects with Atlantic due to the
ineptitude of Atlantic.
14.
LFGC was able i.o engage Mike Codman to complete the project after Atlantic's
material breach of the Agreement.
WAYNE F. SHADE
Attnmey m Law
53 West Pomfret Street
Carlisle. Pennsvlvania
17013
-3-
15.
If LFGC had known the truth about the reason why Atlantic could not engage the
services of Mike Codman, LFGC would have never permitted Atlantic to proceed with a
replacement foreman, but would have pursued an agreement that would have required
construction of the project by Mike Codman.
16.
On October 10, 2003, LFGC issued to Atlantic the notice to proceed in compliance
with § 10 of the Agreement.
17.
The notice to proceed informed Atlantic that it could commence construction on
October 22, 2003.
18.
Atlantic's 35 dk completion date under §4.1 of the Agreement required
completion of construction, other than carpeting, by November 26, 2003.
19.
When Atlantic had not completed the project, other than carpeting, as required
under §4.1 of the Agreement, by November 26, 2003, Atlantic stood in material breach of
the Agreement.
WAYNE F. SHADE
A homey at Law
53 West Pomfret Street
Carlisle, Pennsylvania
17013
-4-
20.
When Atlantic had not completed construction, other than carpeting, by 112 days
later on March 17, 2004, LFGC asserted Atlantic's material breach of the Agreement and
engaged the aforesaid Mike Codman to complete the project.
21.
Mike Codman was able to complete the project, including the carpeting, in 22
days.
22.
The failure of Ai lantic to complete the project in accordance with the completion
terms in the Agreement which it drafted was due totally to the ineptitude of Atlantic.
23.
In spite of Atlamic's material breach of the completion provisions of the
Agreement as of November 27, 2003, LFGC did not assert the breach until 112 days after
November 26, 2003, on March 17, 2004, after continual and repeated attempts to
persuade Atlantic to complete the project.
24.
The cost to LFGC to complete the project was $82,650.10.
WAYNE F. SHADE
Attomev at Law
53 West Pomfret Street
Carlisle, Pennsylvania
17013
-5-
25.
LFGC's damages for completion costs are reduced by the unpaid $47,761 of the
fourth and fifth draws under the Agreement and by $986.16 for light poles for total
completion damages of $33,902.94
26.
By way of further damages, LFGC asserts completion penalties of $112,000
against Atlantic under the provisions of §4.2 of the Agreement.
WHEREFORE, LFGC demands judgment against Atlantic in the amount of
$145,902.94 plus costs and interest from March 17, 2004.
Wayne Shade, Esquire
Supreme Court No. 15712
53 West Pomfret Street
Carlisle, Pennsylvania 17013
Telephone: 717-243-0220
Attorney for Plaintiff
WAYNE F. SHADE
Attorney at Law
53 West Pomfret Street
Carlisle, Pennsylvania
17013
-6-
WAYNE F. SHADE
Ammey at LAW
53 Wes ftmfm Suer
GAok, Pemn+l
17013
I, KURT E. WIL.LMMS, verify that I am the President of LFGC, Inc., that I make
this verification on its behalf being authorized to do so and that the statements made in
the foregoing documem are true and correct. I understand that false statements herein are
made subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to
authorities.
Date: July _j?L, 2004
Kurt E. Williams
,r,atd D9 09 ?5e 09p PTL.PNTIC MINI GOLF 7576?C''?17040
Atlantic
Miniature Golf
Ylr IA~ j"rt yet e.v/or."
AGREEMENT
Section 1 THIS AGREEMENT, Made this 6th day of May;:2003
By and between
Atlantic Miniature Golf
A Virginia Limited Liability Company,
with principal offices located at
801 Orapox Avenue
Norfolk, Virginia 23507
Hereinafter referred to as "SELLER"
and
LFGC, Inc
P.O. Box 1229
Camp Hill, Pa 17001-1229
Hereinafter referred to as "BAYER"
IMTNESSETH
Section 2 That BUYER and SELLER respectively agree to buy and sag a certain
"Boulder-style" 10-hole miniature golf course, to bs,dssigned and
constructed by SELLER according to the specificationa on atte plan,
(Job # 03-04 ) located In Mechanicsburg, %nnsyivanih,, If spy
changes are necessary or requested, said
t3El:' TIT The total sum or purchase price is C
SEVENTY-FIVE THOUSAND SEVEN HUNDREI
($175,761.00) DOLLARS, to be paid under the
conditions:
and
Should BUYER elect to start construction of "4101tie11al 18 holes,
no later than Spring of 2004, on the same she its depicted on the site
plan, BUYER will receive special pricing inthe amount of ONE-
HUNDRED FORTY-TWO THOUSAND ($1Q,000.00) DOLLARS.
00 39ad
EXHIBIT "A"
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Section 3
1. A payment of FORTY-TWO THOUSAND («42*M-00) DOLLARS
when SELLER'S construction crew arrfv4 on site
2. A payment of FORTY-THREE THOUSAND (;43,000.00)
DOLLARS when six (6) holes are poured,.
3. A payment of FORTY-THREE THOUSANV j$43,*.00)
DOLLARS when twelve (12) hotes lard poured.
4. A payment of FORTY-TWO THOUSAND SEVEN 4UNDRED
SIXTY ONE ($42,761.00) DOLLARS when all: eoric ats is
poured.
5. A payment of FIVE THOUSAND ($5,00QX0);DOLL ARS when
SELLER installs carpet, all golf course signs 01. A ids,.
delivers all golf equipment, pro-tests If ppr?lpa/fountains, and
SELLER delivers all promised Web Site sgevtan2s,
Payments to be given to contractor on site, enatossd ln. ;a aeaied
envelope, payments after construction is coMpi be sent via
FedEx to SELLER's address above. Foreman:to;ba ilpitte Crodman.
Should this foramen not be avallabla for aocond couiaier foreman of
some or better standing will construct rho aaicond;coefrse.
Section 4 ;Approximate construction Orno is 31-42 days fiar SELLER's portion of
the construction and project, dependent upon weather conditions,
and site readiness.
Section 4.1 Completion dote ( other than carpeting ) shall l>a 36 osl.orhdst days
after the commencement date, tifitt.pfltmtgbgy„ 'fhpertains to
SELLER'S scope ofwork. BUYER'S subcontr fotorowl?f.work with
SELLER'S construction crew to lnsura the on Lima coi»pletion of the
project Upon the sscolfd notice to proceed (;C rp,004: Nolice to
Proceed) from the BUYER, SELLER will complete vrithin seven
days.
Secton 4.2 SELLER must adhere to the Completion- Ditto stated In_ section 4.1 as
sales and marketing will market the "bouldatr, atyls" IV=.ols miniature
golf course as reedy for play to the public.;QtIW. titan on act of God,
and participation of SUYER'S subcontractors on t;tmaty basis,
SELLER is subject to an 0)1-tlmo completion pdnft 66$1,000 "per
calendar day for each day after the Complotion Dale tl)at the course
is not ready for public play.
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May 09 03 05:1op ATLHMTIC MINI GOLF
7576230040
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Section!; BUYER must submit, in email format, within one week of the start of
construction of the course, logos, etc. for facility wobe te. SELLER
needs that time to prepare the website for the opening of the course,
Includes (3) color logo, additional colors shall be $26.0.00 each. in the
event BUYER does not submit logo on time, which in turn delays the
construction of the course rules sign, which in tam delays shipment
of sign beyond the time SELLER's concrete crew departs from the
site, BUYER must pay SELLER TWO HUNDRED FIFTY ($250.00)
DOLLARS to install sign by SELLER's carpet crew: Should BUYER
not submit the Information on time to SELLER, BUYER does not
have the option of withholding any payments.
Section 6 hymerlts withheld other than good cause is subject to a=penalty of
$1,,000 per day.
Section 7 it will be the kNER's responsibility for provision of the following:
construction equipment: (CAT 963 Track Loader, Kaniatsu Dozer-
small grader with blade. Bobcat 763 and a front-and backhoe I for
SELLER to strip and grade site, site work, utility locating, fill dirt,
electrical work, landscaping and irrigation, fencing,' permits, parking,
clubhouse, lighting, and retaining wells in sumis of three feet.
Existing swales to remain and not be altered by SELLER. Any grass
areas disturbed in the swales by SELLER will be replaced by
SELLER. BUYER will also provide 8013CAT and Backhos to SELLER
for the construction of the miniature golf course, SELLER will
backfill with 5 Inches to top of concrete. SELLER to coordinate all
other trades during construction. BUYER to provide electrical
requirements. Power and water must be installed and "hot" (3)
weeks after commencement of construction. Should power and
water not be installed at the site in a timely manner. SELLER cannot
test pumps and water systems. Should any issues, arise with a
problem with a pump or water system after SELLER'.$ crew
demobilizes, BUYER must reimburse SELLER for all travel related
costs. After completion of landscaping, .BUYER to power wash
miniature golf holes in preparation for carpeting. In the event that
SELLER must complete the power wash of the holes, BUYER must
prepay SELLER $1,000.00.
Section 8 BUYER Is responsible for concrete pumping if the site, Is not
accessible by the concrete trucks. SELLER will bill BUYER directly
through the concrete pump vendor's account or placelhe payment
on the BUYER'S company or owners' credit cards. '
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may 09 03 05e12p nTLnNTIC MINI GOLF 75723.0040
Section 9 SELLER will supply all pumps for water syaterita, "anowball type"
splash fountain nozzles, concrete. Iaborfor the 0onatroction of the
miniature golf course, stone for the ponds and att6ams,:oarpeting,
cups, numbered flags and flagsticks, (3) nets, rules sigh,::(6000)
scorecards, scorecard stands, 16 dozen Aostfas joif_bfpls (assorted
colors), 125 golf clubs (85 adult, 40. juillOtk 10'gr. 1 P40.015, (2)
benches, and web site for the miniature gaff pottign a :Eho facility.
SELLER will provide 25 yards of green ro Qh. 25 yards'tif white
rough and 15 yards of blue turf for the course. This, ihciudes waste
amounts. Should BUYER want more of the groottor white rough or
blue turf than the amount order, charge will 64 $VAquor0 foot. This
additional payment will be due with the final payn ont;( payment # 3).
Section 10 BUYER must provide SELLER in Ittt{ng "notice t(s pr<M?sd" work
order to commence construction of site. This,nailoe- muat be
received at the offices of the SELLER before oily construction crews
are dispatched to the job site. in the event SELL E %t Crew arrives on
BUYER'S site and the site is not ready for the SEL EVS. crew,
BUYER must pay a 83,600.00 penalty per day, u. 01. iha ilie is ready.
The notice to proceed must be issued seven days=priur_to the
mobilization of SELLER'S crew. The Notice 6: Procesd.Rlust include
a copy of applicable permits and a decloratll*ii.tNat' s.0V ~R has
satisfied all the necessary permit requ'iremanta
Section 11 All streams will be lined with 3" to 6" river gravel or similar size
matching boulder types.
Section 12 All concrete will be poured no less than 3.5' thick. Concrete will be
reinforced fiber mix or reinforced with steal Wire. mesh. Reber will be
used in the streams and ponds. Cups will be reavlatio0ype. Deep
gravel drainage runs to be installed under etch, cup-
Section 13 Carpet will carry a 5-year warranty against Woor.and UY fight.
BUYER must provide two-week load-time for inoblittation of carpet
crew.
Section 14 Site must be properly secured by the owner: BUYER must install all
construction fencing and provide security to the efts:.: BUYER, at his
option, should be covered with constructionlbustrioss risk
insurance.
Section 15 SELLER reserves the right to photograph and/or videotape this golf
course for promotional purposes.
4
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Section 16 WARRANTY -SELLER will warrant for a period of tWo (2j yearn, all
materials & workmanship provided by the SELLER hereunder, except
materials and equipment provided by the BUYER, and other
materials which are covered by separate manufacturers warranties,
to be free of defects in material and workmanship, which materially
affects the Intended use of such materials. Pumps taffy the one-year
manufacturees warranty.
Section 17 This agreement and plans represent all agreemonts and the'ahtW"
undarshwding of the project.
Section 18 SELLER will not be responsible for any personal injuries or
accidents caused in the above said golf course once construction is
completed.
Section 19 This Agreement may be executed In counterparts and via facsimile.
Section 20 Any disputes that arise out of this Agreement shall, be settled in the
courts' jurisdiction ImN6ftl ,'Vl gitfia
Section 21 IN WITNESS WHEREOF, BUYER and SELLER have hereto sat their
hands the day and year above written.
Section 22 This agreement is contingent on state, federal and local approvals of
the project as proposed.
Section 28 ATTEST:
Terence Cowl
f
V
60 3DVd d102i9 NVOI63WV
Christopher wlay, president
Atlantic Mbfttu&GoIf
ft:
L .Ina
Printed name: V- ULLl kVA_1
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Renee K. Simpson
Deputy Prothonotary
Curtis R. Long
Prothonotary
John E. Slike
solicitor
nice o t?je pcotbonotarr
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(furaberlanb CountP
0 j - .3 5 T CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
Tx Y OF NOVEMBER 2007 AFTER MAILING NOTICE OF
AND NOW THIS 5 DA RECEWING NO RESPONSE
INTENTION TO PROCEED AND WITH PREJUDICE IN ACCORDANCE WITH PA
CASE IS HEREBY TERMINATED
R C P 230.2.
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573
One Courthouse