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Home My WebLink About11-34051 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CERAMIC TILE SUPPLY COMPANY, 103 Greenbank Road Wilmington, DE 19805 Plaintiff, -against- McCOY BROTHERS, INC., 1514 Commerce Avenue Carlisle, PA 17015 Defendant. CIVIL DIVISION C-) N S 8 r ' " - CASE NO. I' - 340 ?== 7C CD ( D I CLD yt:7 C COMPLAINT = 5c: F rr, 5 Plaintiff Ceramic Tile Supply Company ("Ceramic Tile"), hereby files this Complaint against.McCoy Brothers, Inc. (hereinafter "McCoy"), and in support hereof states as follows: PARTIES 1. Claimant, Ceramic Tile, is a Delaware corporation. Ceramic Tile operates a division know as Bath/Kitchen & Tile Supply Company located at 103 Greenbank Road, Wilmington, Delaware 19805. 2. Upon information and belief, McCoy is a Pennsylvania corporation duly licensed and registered to conduct business in the Commonwealth of Pennsylvania, with a principal place of business located at 1514 Commerce Avenue, Carlisle, PA 17015. FACTUAL BACKGROUND 3. Upon information and belief, and after reasonable investigation, The Great Commission Care Communities, Inc. d/b/a The Woods at Cedar Run hired McCoy as the general contractor for purposes of performing and completing certain alterations, improvements and/or 182004.00024 / W0497652 } a QMj v4-a.00 PA a ek0 75Z9 rz?457 959 repairs in connection with the property located at The Woods at Cedar Run, 824 Lisburn Road, Camp Hill, PA 17011. 4. Upon information and belief, and after reasonable investigation, The Great Commission Care Communities, Inc. d/b/a The Woods at Cedar Run is and was at all times relevant hereto, the owner or reputed Owner of the property located at The Woods at Cedar Run, 824 Lisburn Road, Camp Hill, PA 17011. 5. In or around May 2010, McCoy requested that Ceramic Tile supply certain kitchen design services and materials, including but not limited to custom solid surface countertops for use and installation on the property located at The Woods at Cedar Run, 824 Lisburn Road, Camp Hill, PA 17011. Attached hereto collectively as Exhibit "A" are true and accurate copies of invoices, reflecting the delivery by Ceramic Tile and acceptance by McCoy of the aforesaid and as evidence of the contract between the parties. 6. In accordance with their agreement, Ceramic Tile delivered said services and materials to McCoy at the property as agreed upon. See Exhibit "A." 7. The agreed upon price for the services and materials provided by Ceramic Tile to McCoy totaled $19,217.80. 8. Despite invoicing McCoy for all of the labor and materials supplied pursuant to their agreement and despite making demands for payment, McCoy has wholly failed and refuses to remit payment to Ceramic Tile. 9. As of this date, the amount of $19,217.80, exclusive of claims for interest, penalties, costs and attorney's fees set forth herein, is owed to Ceramic Tile for labor and materials supplied by Ceramic Tile under their contract. (82004.00024 / W0497652) COUNT I-BREACH OF CONTRACT 10. Plaintiff hereby incorporates the preceding paragraphs as though fully set forth herein. 11. The agreement between Ceramic Tile and McCoy constitutes a valid and enforceable contract. 12. Ceramic Tile performed all of its work as described in their contract in a good and workmanlike manner. 13. To date, McCoy has refused to make any payments to Ceramic Tile despite demand. 14. McCoy's failure and refusal as described above constitute material breaches of McCoy's contract with Ceramic Tile. 15. As a result of McCoy's material breach of the contract, Ceramic Tile has incurred the damages as set forth in Paragraph 9 above. WHEREFORE, Plaintiff, Ceramic Tile, demands judgment against Defendant, McCoy Brothers, Inc., in an amount in excess of $19,217.80, together with interest, costs of suit, and such other relief as this Court deem appropriate. COUNT I1-CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT, 73 P.S. §§501 ET SE Q. 16. Plaintiff hereby incorporates the preceding paragraphs as though fully set forth herein. 17. The Contractor and Subcontractor Payment Act ("CASPA"), 73 Pa.C.S.A. §§501 et seq. applies to the project described herein and the agreement between McCoy and Ceramic Tile. {82004.00024 / W0497652} 18. McCoy is a "Contractor" as that term is defined in the CSPA. McCoy entered into a construction contract to improve real property with The Great Commission Care Communities, Inc. d/b/a The Woods at Cedar Run. 19. ' Ceramic Tile is a "Subcontractor" as that term is defined in the CSPA. Ceramic Tile contracted to furnish labor and materials to McCoy, a Contractor, in connection with McCoy's Prime Contract with The Great Commission Care Communities, Inc. d/b/a The Woods at Cedar Run. 20. Ceramic Tile has performed in accordance with the provisions of their agreement with McCoy by supplying McCoy with all of the labor and materials described in the invoices attached as Exhibit "A." 21. On or about July 28, 2010 Ceramic Tile submitted two invoices for payment to McCoy for $7,049.00 and $12,168.80 to the attention of Bob Ganoe at McCoy Brothers. A true and correct copy of the facsimile cover sheet and May and June 2010 invoices are attached collectively as Exhibit "A". 26. Ceramic Tile has yet to receive any payment from McCoy in response to Ceramic Tile's invoice forwarded in July 2010 and has not been paid by McCoy. 27. Notwithstanding Ceramic Tile's repeated demands, McCoy has wrongfully and unreasonably failed and refused to pay Ceramic Tile in accordance with the terms of their contract. 28. McCoy's wrongful and unreasonable failure to pay Ceramic Tile undisputed monies owed for work performed on the Project violates the CSPA. 29. McCoy has wholly failed and refuses to remit payment to Ceramic Tile for labor and materials supplied by Ceramic Tile under their agreement. (82004.00024 / W0497652) 30. Upon information and belief, McCoy has been paid by The Great Commission Care Communities, Inc. d/b/a The Woods at Cedar Run for the labor and materials supplied by Ceramic Tile. 31. ' The CSPA provides that if a payment is wrongfully and unreasonably not made to a subcontractor when due, the contractor shall pay to the subcontractor, in addition to the amount due, interest computed at the rate of one percent (I%) per month. 32. The CSPA further provides that if an action is commenced to recover payments due under the Act, and it is determined that a contractor failed to comply with the payment terms of the Act, in addition to all other damages due, the Court may award a penalty equal to 1 % per month of the amounts wrongfully and unreasonably withheld together with reasonable attorney's fees and expenses. 33. McCoy, without justification or cause, has violated the CSPA by wrongfully and unreasonably failing to pay Ceramic Tile's invoices when due. 34. As a result of McCoy's wrongful and unreasonable withholding of amounts due to Ceramic Tile in violation of the Prompt Payment Act, Ceramic 'T'ile requests that a penalty be assessed against McCoy in the form of: (1) an award to Ceramic Tile of interest at 1% per month of the amount wrongfully withheld by McCoy; (2) an award to Ceramic Tile of damages equal to I% per month of the amount wrongfully withheld by McCoy; and (3) an award to Ceramic Tile of its reasonable attorney's fees expended in pursuing its claims under the CPSA. The entire amount of $19,217.80 owed to Ceramic Tile by McCoy has been wrongfully and unreasonably withheld. WHEREFORE, Plaintiff Ceramic Tile, Inc. demands judgment against Defendant, McCoy Brothers, Inc. in an amount in excess of $19,217.80, plus interest, costs, expenses, { 82004.00024 l W04970521 attorney's fees and such other relief as available under the Contractor and Subcontract Payment Act, and such further relief as this Court deems to be just and proper. Dated: 2011 1'4;? ".1 2!!?' By: [Name], [Title] Ceramic Tile Supply Company 103 Greenbank Road Wilmington, DE 19808 [Phone Number] { 82004.00024 / W0497652 } 1) /? 11 No, 3784 P. 1/3 Sco. -?(2ehv , COMMWIAI, DIVISION - (302)737-6409 FAIC ^ (302) 737-7668 TO., 0 ATTN; ?J 0 ?y lT I!?'?1 V C TXME: Mors. ? a u a? ? ,P R e d ?n ? tip . xrF/MESS??s; . TOTAL # 0V k'FiGES r INCLUDING COVSR' S}YEET ; p 1?s gig IF YOU DO NOT REC&M ALL PAGES As ZNDXCATEA, Pr ZAS& CALL; PXT. Ju I, 28. 2010 2:29PM Ceramic Tile Supply Company, Inc, 103 Greenbank Road Wilmington DR 19808 (302) 992--9210 Ship To: THE. WOODS THE WOODS a CEDAR RUN 824 LISBURN, ROAD CAMPHILL PA, 302-123--6530 No, 3184 P. 3/3 * ACKNOWLEDGEMENT *, Order# 197068.00 Pg 1 Entered 05/03/2010 By CDR -56 Sold To, BRANDY-MIL BRANDYWINE MILLWORK 1601 JESSUP ST WILMINGTON DE 19801 302-652-3008 Qty Part# Description Prise Amount THE WOODS Lot# THE WOODS Job#•71885 Requested Delivery Date 05/17/2010 Customer PO 275 4A-01 QUOTE INSTALLED 6650.00 6650.00 CUSTOM SOLID SURFACE COUNTER 'L'OPS 1,0 CS-COUNTERTOP TOP SHOP PO#( 46877. SEE DRAWINGS FOR C01,ORS COD TERMS; NET Subtotal - - 6,¢50,00 PA1 Sales Tax On 6,650.00 399.00 TOTAL DUE-%. 7,049,00 Co U • Jul, 28, 2010 2:29PM Ceramic Tile Supply Company, Inc. 103 Greenbank Road Wilmington DE 19808 (302) 992-9210 Ship TO; THE-WOODS 'HE WOODS @.CEDAR RUN 124 LISBURN ROAD 'AMPHILL PA 102-723-6530 No.3184 P. 2/3 * ACKNOWLEDGEMENT * Order# 197792,00 Pg 1 Entered 06/08/2010 By CDR -56 Sold To: BRANDY-MIL BRANDYWINE MILLWORK 1601 JESSUP ST WILMINGTON DE 19801 302-652-3008 Qty Part# Description Price Amount WOODS Lot# THE WOODS Job# 71885 Requested Delivery Date 06/15/2010 Customer PO 275 4A•-Ql QUOTE INSTALLED 11480.00 11480.00 CUSTOM SOLID SURFACE COUNTER TOPS DOOMS 125 & 131 1.0 CS-COUNTERTOP TOP SHOP VO# 46974 SEE DRAWINGS To BE TEMPLATED 'ERMS ; MET Subtotal,.,,. 11,480.00 PAl Sales Tax On 11,480.00 688,80 TOTAL DUE.,... 12,168,80 Wq& (fo,'4ew "Yume ?_KoI0 VERIFICATION Vernon Andrews hereby states he is the Controller of Ceramic Tile Supply Company, is authorized to make this verification on its behalf and verifies that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that knowingly false statements are subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsifications to authorities. {82004.00024/ W0497652) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CERAMIC TILE SUPPLY COMPANY, 103 Greenbank Road Wilmington, DE 19805 ("Claimant") Plaintiff, -against- McCOY BROTHERS, INC., 1514 Commerce Avenue Carlisle, PA 17015 ("General Contractor") Defendant. CIVIL DIVISION CASE NO. 11-3405 PRAECIPE TO REINSTATE COMPLAINT To the Prothonotary: j- jj ED-QFFiCE u '€ , ?ROTHONOTW' 201, jUL i 1 FM 2-. 35 ?u PENNSYLVANIA TY Kindly reinstate the attached Complaint filed in the above-captioned matter on April 1, 2011. Dated: { W05087811 By: Z_ Vernon Andrews, Controller Ceramic Tile Supply Company 103 Greenbank Road Wilmington, DE 19808 Phone: (302) 992-9210, Ext. 316 Qw, s 1b .ob ed pill Clc.??`-??e SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff FILED-OFFICE Jody S Smith 4,?tti,, flt ,t,,rrrry d iTAr THE PROTI ONOTd`tiF§:'¢r Y Chief Deputy 2011 JUL 18 PM 1- 20 Richard W Stewart Solicitor : CUMBERLAND COUNTY PENNSYLVANIA Ceramic Tile Supply Company VS. Case Number McCoy Brothers, Inc. 2011-3405 SHERIFF'S RETURN OF SERVICE 07/13/2011 03:15 PM - Stephen Bender, Deputy Sheriff, who being duly sworn according to law, states that on July 13, 2011 at 1515 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: McCoy Brothers, Inc., by making known unto Gregory Kuhn, Vice President of McCoy Brothers, Inc. at 1514 Commerce Avenue, Carlisle, Cumberland County, Pennsylvania 17015 its contents and at the same time handing to him personally the said true and correct copy of the same. E E BENDER, DEPUTY SHERIFF COST: $34.44 July 14, 2011 SO ANSWERS, 4?a-RONR'Y R ANDERSON, SHERIFF Vic; Countysuite nhenIf I e!ao "Oft Ir, Dean F. Piermattei, Esquire Attorney I.D. No. 5847 Rhoads & Sinon LLIP One South Market Square PO Box 1146 Harrisburg, PA 1710-1146 Telephone: (717) 233-5731 Facsimile: (717)23 -8623 F-Nlail: d1 ierm ittei! i!rhortl Attorney for DeleMda t CERAMIC TILE (SUPPLY COMPANY, Plaintiff V. McCOY BROTHERS, INC. Defendant f=!(.EG-or=teS ?i1 (! •J?( r THE i'frLJ ? ] aii,EVTA r-, a 2011 AUG --1 AM g. 30 ?UMBERLI. ND ooUU 4TV PENNSY! VANiA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 11-3405 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Rhoads & Sinon LLP and Dean F. Piermattei as counsel for Defendant, McCoy Brothers, Inc. RHOADS & 5P"N LLP Nor f,Xlea e outh Market Square PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that on this'' day of July, 2011, a true and correct copy of the foregoing Entry of Appearance was served by means of United States mail, first class, postage prepaid, upon thel following: Vernon Andrews, Controller Ceramic Tile Supply Company 10 Greenbank Road W lmington, DE 19808 r CERAMIC TILE SUPPLY COMPANY, Plaintiff V. McCOY BROTHERS, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 11-3405 NOTICE TO PLEAD To: Vernon drews, Controller Ceramic ile Supply Company 103 Gree bank Road Wilmington, DE 19808 C-N ? ca You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (26) days from service hereof or a judgment will be en red against you. RH By; Dean F. Piermattei One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant, McCoy Brothers, Inc. Dean F. Piermattei,' Esquire Attorney I.D. No. 3847 RHOADS & SING LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defe dant CERAMIC T4 SUPPLY COMPANY, Plaintiff McCOY NOW through their opposition to Tile") and in , INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 11-3405 'RELIMINARY OBJECTIONS TO COMPLAINT MES Defendant McCoy Brothers, Inc. (hereinafter "McCoy Bros.") by and nsel, Rhoads & Sinon LLP, and files the following preliminary objections in Complaint filed by Ceramic Tile Supply Company ( hereinafter "Ceramic thereof avers the following: 1. 010 April 1, 2011, Ceramic Tile filed a Complaint against McCoy Bros. alleging a cause of action based on breach of contract (Count I) and breach of the Contractor and Subcontractor P?yment Act (Count II) claiming that Ceramic Tile suppled "kitchen design services and materials, including but not limited to custom solid surface countertops for use and installation on th? property located at The Woods at Cedar Run...." (See Paragraphs 5-9 of the Complaint). A true and correct copy of the Complaint filed by Ceramic Tile is attached hereto as Exhibit "A" and herein by reference. 821089.1 2. The Complaint was served on McCoy Bros. on July 13, 2011, and McCoy Bros. Preliminary Objections are being timely filed pursuant to the Pennsylvania Rules of Civil Procedure. TO STRIKE COUNT I 3. Defendant incorporates herein by reference Paragraphs 1 through 2 above. 4. Pa. R. Civ. P. 1019(h) specifically requires that "when any claim or defense is based upon the agreement, the pleading shall state specifically if the agreement is oral or written." 5. Furthermore, Pa. R. Civ. P. 1019(i) requires that when a claim is based upon a writing, the plea?er "shall attach a copy of the writing." 6. In the present case, Ceramic Tile has filed a current action claiming that they had a contract with McCoy Bros., however, it has failed to plead whether the agreement was oral or written and Ceramic Tile has failed to attach a copy of the writing to the extent that it is claiming the agreement wO written. 7. Ceramic Tile's failure to designate the nature of the contract or attach the writing is a violation of 1 a. R. Civ. P. 1019(h) and (i) and accordingly Count I shall be stricken. 8. Ceramic Tile failed to properly allege the existence of a contract in this case. The only documents that it has attached to the agreement are invoices that show Ceramic Tile sold services and/or materials to a party other than McCoy Bros. Specifically, the invoices show that the materials wer? sold to Brandywine Millwork and as they state the following: -2- Sold To; Brandy-Mil Brandywine Millwork 1601 Jessup St Wilmington DE 19801 302-652-3008 See invoices att?ched to Ceramic Tiles Complaint. ?I 9. I owhere in the invoices does it indicate that Brandywine had an agreement with McCoy Bros. oii that it was selling materials to McCoy Bros. Rather, the only writing provided by Ceramic Till indicates Ceramic Tile had a contract with Brandywine Millwork and not McCoy Bros. RE, McCoy Bros. respectfully requests that this Court strike Count I of Ceramic Tiles M II 10. Defendant incorporates herein by reference Paragraphs 1 through 9 above. 11. Count II of the Complaint is based upon Ceramic Tile's pleading that there is a contract that exited between the parties and McCoy Bros. was the contractor and Ceramic Tile was the 12. In fact, in order to maintain a claim under the Contractor and Subcontractor Payment Act, 71, P.S. §§ 501, et seq., a party must plead and have privity of contract to have standing. 13. Fc r the reasons set forth above, Ceramic Tile has failed to properly plead a contract existing between the parties and in fact the evidence of record shows that Ceramic Tile I -3- had a contract with Brandywine Millwork and not McCoy Bros. Accordingly, it is improper for Ceramic Tile to ',maintain a claim under the Contractor and Subcontractor Payment Act. WHER?FORE, McCoy Bros. respectfully requests that this Court strike Count II of Ceramic Tiles Complaint. Respectfully submitted, RHOADB'NQN LLP Dean F. Piermattei, Esquire One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant -4- ?x????i IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CERAMIC TILE SUPPLY COMPANY, 103 Greenbank Road Wilmington, DE 9805 Plaintiff, -agiainst- McCOY BROTH RS, INC., 1514 Commerce venue Carlisle, PA 1701$ Defendant. CIVIL DIVISION ` C: _ 7 M CASE NO. 'CD s -,, 5 o ? M o . COMPLAINT = + , Plaintiff Ceramic Tile Supply Company ("Ceramic Tile"), hereby files this Complaint against.McCoy Brothers, Inc. (hereinafter "McCoy"), and in support hereof states as follows: PARTIES 1. Claimant, Ceramic Tile, is a Delaware corporation. Ceramic Tile operates a division know asi Bath/Kitchen & Tile Supply Company located at 103 Greenbank Road, Wilmington, Dela? are 19805. 2. Upon information and belief, McCoy is a Pennsylvania corporation duly licensed and registered to conduct business in the Commonwealth of Pennsylvania, with a principal place of business located at 1514 Commerce Avenue, Carlisle, PA 17015. FACTUAL BACKGROUND 3. Upon information and belief, and after reasonable investigation, The Great Commission Care Communities, Inc. d/b/a The Woods at Cedar Run hired McCoy as the general contractor for purposes of performing and completing certain alterations. itnprovem_ents and/or TRUE COPY FROM RECORD andest' se y whereof' f here unto set my hand (82004.00024 / W0497652) !, the of of said court at cariwe, Pa. This day of -qWLt_. Prothonotary ? repairs in connection with the property located at The Woods at Cedar Run, 824 Lisburn Road, Camp Hill, PA 17011. 4. Upon information and belief, and after reasonable investigation, The Great Commission Care (Communities, Inc. d/b/a The Woods at Cedar Run is and was at all times relevant hereto, the owner or reputed Owner of the property located at The Woods at Cedar Run, 824 Lisburn Road,l Camp Hill, PA 17011. 5. In or around May 2010, McCoy requested that Ceramic Tile supply certain kitchen design ser?ices and materials, including but not limited to custom solid surface countertops for us? and installation on the property located at The Woods at Cedar Run, 824 Lisburn Road, Canh p Hill, PA 17011. Attached hereto collectively as Exhibit "A" are true and accurate copies of ?nvoices, reflecting the delivery by Ceramic Tile and acceptance by McCoy of the aforesaid and 0 evidence of the contract between the parties. 6. In accordance with their agreement, Ceramic Tile delivered said services and materials to *Coy at the property as agreed upon. See Exhibit "A." T The agreed upon price for the services and materials provided by Ceramic Tile to McCoy totaled $19,217.80. 8. Despite invoicing McCoy for all of the tabor and materials supplied pursuant to their agreement and despite making demands for payment, McCoy has wholly failed and refuses to remit payment to Ceramic Tile. 9. As of this date, the amount of $19,217.80, exclusive of claims for interest, penalties, costs and attorney's fees set forth herein, is owed to Ceramic Tile for labor and materials supplied by Ceramic Tile under their contract. J82004.00024 / W0497652) COUNT I-BREACH OF CONTRACT 10. Plaintiff hereby incorporates the preceding paragraphs as though fully set forth herein. 11 a The agreement between Ceramic Tile and McCoy constitutes a valid and enforceable contract. 12J Ceramic Tile performed all of its work as described in their contract in a good and workrna?like manner. 13.'i To date, McCoy has refused to make any payments to Ceramic Tile despite demand. 14. McCoy's failure and refusal as described above constitute material breaches of McCoy's contract with Ceramic Tile. 15. As a result of McCoy's material breach of the contract, Ceramic Tile has incurred the damages as set forth in Paragraph 9 above. RE, Plaintiff, Ceramic Tile, demands judgment against Defendant, McCoy Brothers, Inc., in ao amount in excess of $19,217.80, together with interest, costs of suit, and such other relief as this Court deem appropriate. ---- - IJ 1 .V. .7VA ET SEO. 16. !I Plaintiff hereby incorporates the preceding paragraphs as though fully set forth herein. 17. The Contractor and Subcontractor Payment Act ("CASPA"), 73 Pa-C.S.A. §§501 et seq. applies to the project described herein and the agreement between McCoy and Ceramic Tile. {82004.000241 W0497652; M McCoy is a "Contractor" as that term is defined in the CSPA. McCoy entered into a construction contract to improve real property with The Great Commission Care Communities, Inc. d/b/a The Woods at Cedar Run. 19. Ceramic Tile is a "Subcontractor" as that term is defined in the CSPA. i Ceramic Tile contracted to furnish labor and materials to McCoy, a Contractor, in connection with McCoy's Pr me Contract with The Great Commission Care Communities, Inc. d/b/a The Woods at Cedar Run. 20. Ceramic Tile has performed in accordance with the provisions of their agreement with McCoy by supplying McCoy with all of the labor and materials described in the invoices attached 21, payment to McC Brothers. A true a are attached collet 26. Ceramic Tile's inv 27. and unreasonably contract. 28. undisputed monies 29, labor and materials (82004.000241 W0497652) Exhibit "A." On or about July 28, 2010 Ceramic Tile submitted two invoices for for $7,049.00 and $12,168.80 to the attention of Bob Ganoe at McCoy d correct copy of the facsimile cover sheet and May and June 2010 invoices vely as Exhibit "A". Ceramic Tile has yet to receive any payment from McCoy in response to forwarded in July 2010 and has not been paid by McCoy. Notwithstanding Ceramic Tile's repeated demands, McCoy has wrongfully ;d and refused to pay Ceramic Tile in accordance with the tenns of their McCoy's wrongful and unreasonable failure to pay Ceramic Tile for work performed on the Project violates the CSPA. McCoy has wholly failed and refuses to remit payment to Ceramic Tile for by Ceramic Tile under their agreement. 30. Upon information and belief, McCoy has been paid by The Great Commission Care Communities, Inc. d/b/a The Woods at Cedar Run for the labor and materials supplied by Ceramic Tile. 31. The CSPA provides that if a payment is wrongfully and unreasonably not made to a subcontractor when due, the contractor shall pay to the subcontractor, in addition to the amount due, interest computed at the rate of one percent (I%) per month. 32. The CSPA further provides that if an action is commenced to recover payments due under the Act, and it is determined that a contractor failed to comply with the payment terms of Ilthe Act, in addition to all other damages due, the Court may award a penalty equal to 1 % per month of the amounts wrongfully and unreasonably withheld together with reasonable attorney's fees and expenses. 33. McCoy, without justification or cause, has violated the CSPA by wrongfully and un>easonably failing to pay Ceramic Tile's invoices when due. 34. As a result of McCoy's wrongful and unreasonable withholding of amounts due to COamic Tile in violation of the Prompt Payment Act, Ceramic Tile requests that a penalty be assessed against McCoy in the form of. (1) an award to Ceramic Tile of interest at 1% per month of the amount wrongfully withheld by McCoy; (2) an award to Ceramic Tile of damages equal to I1 o per month of the amount wrongfully withheld by McCoy; and (3) an award to Ceramic Tile of il? reasonable attorney's fees expended in pursuing its claims under the CPSA. The entire amount of $19,217.80 owed to Ceramic Tile by McCoy has been wrongfully and unreasonably withheld. WHEWORE, Plaintiff Ceramic Tile, Inc. demands judgment against Defendant, McCoy Brothers, Inc. in an amount in excess of $19,217.80, plus interest costs, expenses, (82004.000241 W0497652) attorney's fees and such other relief as available under the Contractor and Subcontract Payment Act, and such further relief as this Court deems to be just and proper. Dated: 2011 [Name], [Title] Ceramic Tile Supply Company 103 Greenbank Road Wilmington, DE 19808 [Phone Number] (82004.00{}24 / W0497652) !)j4 11 x No, 3784 P. 1/3 ,per 4r. 4yco.) OWMON-(302)737-6409 ^ ( )737-7668 `1:02 TO• ? l ????1 paxE• ? ?00 ATTN: 0 TxME: . MOM; oug k+-ekMpne W oE. ?N c aA- -7 UJ0 od s TOTAL # Ofi RAGLSr INCLUDING COVPlr SHEETt J P S' IF YOU DO ? OT AZCZIVE ALL PAGES AS YNDICAT$D, PLL"AS$ CALL; JOXT. VERIFICATION ernon Andrews hereby states he is the Controller of Ceramic Tile Supply Company, is authorized to make this verification on its behalf and verifies that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that knowingly false statements are subject to the penalties of 18 Pa. C.S.A. § 4904 relating t unsworn falsifications to authorities. 32004.00024 1 W0497652 4 ' ' p CERTIFICATE OF SERVICE I hereby certify that on this 29th day of July, 2011, a true and correct copy of the foregoing Preliminary Objections was served by means of United States mail, first class, postage prepaid, upon the following: Vernon Andrews, Controller Ceramic file Supply Company 103 Gree bank Road WilminMt n, DE 19808 r 0kh1 PRAECIPE FOR LISTING CASE FOR ARGUN (Must be typewritten and submitted in dup ca Q) E P R ( { H 0 N 0 TA R' 'y TO THE PROTHONOTARY OF CUMBERLAND COUNTY (List WW& WtteP r tVb ;? t Argument Court) CUMBERLAND COUNTY PENNSYLVANIA --------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) Ceramic Tile Supply Co., Plaintiff V. McCoy Brothers, Inc. Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : No. 11-3405 State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant McCoy Brothers, Inc.'s Preliminary Objections to Plaintiffs Complaint 2. Identify counsel who will argue case: a. for plaintiff: Pro se / Vernon Andrews, Controller, Ceramic Tile Supply Company, 103 Greenbank Road, Wilmington, DE 19808 b. for defendant: Dean F. Piermattei, Esquire, RHOADS & SINON LLP, One South Market Square, 12th Floor, Harrisburg, PA 17101 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 7, 2011 ea termattei, Esquire Date: August 2011 AtttSrney for Defendant McCoy Brothers, Inc. 822197.1 631803.1 Ir i rI n: COURT OF COMMON PLEAS CU-1vMERLAND COUNTY, PENNSYLVANIA C ER AMTC'. TH .F ST TPPTY COMP ANY, i 03 Cireenhank Road. Wilmingtone nF 1 oQnc C'TVTT . ]INTSTC)N I'll Aa% ?N 11 =34ti5 Plaintiff. -against- COMPLAINT IVlc+001 DR,D'TIH1rxS, UP Ac'.' 1514 Commerce Avenue Carlisle, s v iaty PA s 17015 De_fem ant. P'RAECIPE TO WITi RD- Anti To the Prothonotary: c In Ir cn ? C D D C rI • Y y ?+P Kindly withdraw the Complaint riled in connection with the above-captioned mailer and mark this matter discontinued. Dated: OCZ '--V 5_, 20 i i VerT on A_drews, C nitre-fle ' aTAIluc T iIc Supply l 0111pally 163 Cireenhank Road Wilmington, I ll . 19808 (302) 992-92W i82004,00030 /W051-90W) CER T IFICATE OF SMUCE The undersigned certifies that a true and correct copy of the within Praecipe to Withdraw Complaint was served uptm all parties by I1.,& First (;lass Mail on Dean F. Eietmattei, Esq. rtt M. We ert, Fsq_ iviCAIBS & SINOI UP One South Market ;square P.n.Box 11¢6 liamsburg, PA 17108-1140' (717) 233-3731 Attome-va for MC-C-0v Dr-Dtheraz 1P-r_._ VERNON Al DREWS i82004,00030 I., ri031y083i