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HomeMy WebLinkAbout01-4871PENNSY SUPPLY, INC., Plaintiff RVG MANAGMENT & DEVELOPMENT: CO.; HERSHEY GF LP; and ROBRYCE: CORP., its general partner, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. CIVILACTION-LAW 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 this complaint and notice are served, by entering a written appearance personally or by 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 OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 Telephone 717-249-3166 or 800-990-9108 HANDLER, HENNING & ROSENBERG I.D. #322~8 / / 1300 Lingle',~5'wn Ro,,~ Harrisburg, PA 17,/~10 (717) 238-2000/ Attorney for ,~ntiff PENNSY SUPPLY, INC., Plaintiff RVG MANAGEMENT & DEVELOPMENT CO.; HERSHEY GF LP;andROBRYCECORP.,itsgene~ partner, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COMPLAINT AND NOW, comes the Plaintiff, Pennsy Supply, Inc., by and through its attorneys, HANDLER, HENNING & ROSENBERG, by W. Scott Henning, Esquire, and makes the within Complaint against Defendants, as follows: 1. Plaintiff, Pennsy Supply Inc. (hereinafter referred to as "Permsy"), is a Pennsylvania corporation qualified to do business in the Commonwealth of Pennsylvania, having its principal place of business located at 1001 Paxton Street, P.O. Box 3331, Harrisburg, Dauphin County, Pennsylvania, 17105. 2. Defendant, RVG Management & Development Co. has a place of business located at 1000 North Front Street, Suite 500, Wormleysburg, PA 17043. 3. Defendant, Hershey GF, LP is a Pennsylvania limited partnership with a registered office at 1000 North Front Street, suite 240, Wormleysburg, PA 17043. 4. Defendant, Robryce Corp., is a Pennsylvania corporation with a registered office at 1000 North From Street, Suite 240, Wormleysburg, PA 17043 and which is the General Partner of Hershey GF, Limited Partnership. 5. At ail times material hereto, Pennsy was a corporation engaged in the business of selling and supplying construction materiais including, but not limited to, stone, asphait and other materials related to paving of roadways and driveways. 6. At ail times material hereto, RVG was a corporation engaged as a general contractor on a construction project known as the "Hershey Giant Store Project". 7. At all times material hereto, RVG had engaged an entered into a subcontract with Bryan A. Ziegler Excavating & Paving, Inc. (hereinafter referred to as "Ziegler") to perform excavating and paving services at the aforesaid project. 8. At all times material hereto, RVG had knowledge that Ziegler subcontracted with Plaintiff Pennsy to acquire the materiais necessary for Ziegler to perform its excavation and paving job under the terms of the subcontract between Ziegler and RVG. 9. On or about April 16, 2000, by and through its authorized representative, Dennis J. Schmidt, Partner of RVG Management & Developmem Co., and also in his capacity as a Partner of Hershey GF, L.P., entered imo an agreement with Ziegler by and through its controller, Sandra K. Kreiser, whereby RVG agreed to issue joint checks to Ziegler and Pennsy in an amount not to exceed the sum of $176,637.00. A copy of the Joint Check Agreement is attached hereto and incorporated herein as Exhibit "A". -2- 10. The Joint Check Agreement was executed between RVG and Ziegler by and through their authorized representatives, with the express intention of benefitting Pennsy, such that Pennsy would be assured of receiving payment for the materials supplied by Pennsy to Ziegler. 11. The aforesaid Joint Check Agreement was a requirement made by Pennsy for the sale and supply of goods and materials to Ziegler for the Hershey Giant Store project. 12. In executing the Joint Check Agreement, RVG and Ziegler intended to modify the standard payment provision of the parties' contractual dealings whereby RVG would pay Ziegler and then Ziegler would in turn pay Pennsy. The Joint Check Agreement created an obligation on the part of RVG to issue checks jointly payable to Ziegler and Pennsy. 13. Plaintiff, Pennsy supplied materials to the Hershey Giant Store project in reliance upon the Joint Check Agreement. The materials sold and tendered by Pennsy to the Hershey Giant project in reliance upon the Joint Check Agreement have a total invoice value in the sum of $88,122.17. 14. RVG failed to fulfill its obligations under the Joint Check Agreement by failing to issue joint checks, but instead issued checks payable solely to Ziegler. 15. As a result, the sum of $88,122.17 remains due and owing to Pennsy Supply, inc. for materials supplied to the Hershey Giant Store project. 16. Although Plaintiff has made due demand for payment of the aforesaid balance upon RVG, said Defendant has failed and refused to tender payment to Pennsy Supply, Inc. -3- WHEREFORE, Plaintiff demands Judgment against the Defendants in the amount of $88,122.17, plus interest and the costs of suit. Date: Respectfully Submitted, HANDLER, HENN1NG & ROSENBERG (717) 238-2000 Attorney for Plaintiff -4- 04/20/2000 23:45 FAX ~-20-2000 ~ THU 07:37 -> PENNSY SUPPLY; Page 3 F~X N0, ?,,,318457 P. O1 Bryan A. Ziegler ExGavating & Pavlng',"lr ? ? R.R. ,e3, BOx 362 · Palmyra, PA 17078-9751 (717) 83B-~848 · 1-800-734-777B · Fax: (717) 838-9811 Mandt 28, 2000 Dannil S~hmidt I~VO Management & Development C~tpany 1000 N Front ~treeL Suite 500 Werml..eytburg. PA 17043 .... . RE: Hershey Giant Store Dear Dennis: This letter serves es notice filet you are authorized and requested to pay Pennsy Supply Co, leo by joint oheck fT~m any fund due Bryan A Ziegler Ex¢avating & Paving, II10 for paving subcontracting by Penney Supply Co, Ina for the above job, as ia apeoh'lcally approved and submitted to your efl~ee. This amount ~hould not exceed $170,657.00 for the above project. Hemhey GF, L.P should be noti~ in writing of any Increases or d~reese~ to this ortginal amount. Any joint checi~ so drawn will be endorse;I first I~y aryan A Ziegler Excavating & I~ving, Inc at Hershey GF, LP Corporate Offioe and then forwarded by I.lemhey GF, LP to: F~nn,y Supply Co, In~. Bryan A Ziegler Ex~aveUng & Paving, Inc agrees that the sole purpose of this document i~ to authorize Hershey GF, I.P to issue a joint ~he~k when requested by the subeo.~ctor, Bryan A Ziegler ExeaveUng & Pavir~, In=. If thi~ arrangement meets your approval, please s'~n below and return one (~) copy. 8incemJy, Sandra K Krel~er Con. teller p~ ADproved by Hemhey GF, L _. (signature) / / TEAMWORK Together Fie Ach~e The F. xtraordinary VERIFICATION The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the document are that of counsel, I have relied upon my counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn fals~~ .t_h~ ---.~ohn J~S~war,~/, Jr Date: 9~ ~_~ 0 C re~l~ M ~¢r/a/g e r SHERIFF'S RETURN - CASE NO: 2001-04871 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PENNSY SUPPLY INC VS RVG MANAGEMENT & DEVELOPMENT REGULAR CPL MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon RVG MANAGEMENT & DEVELOPMENT CO the DEFENDANT , at 1145:00 HOURS, on the 27th day of August at 1000 N FRONT ST STE 500 , 2001 WORMLEYSBURG, PA 17043 DOUG LEHMAN a true and attested copy of by handing to ATTORNEY FOR BUSINESS COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18 00 9 75 00 10 00 00 37 75 Sworn and Subscribed to before me this /~- day of ~~ --3¢,~/ A.D. / /Prothonotary ' ' So Answers: R. Thomas Kline 08/28/2001 HANDLER HENNING & ROSENBERG By: ~ ~ Deputy F~ri[f ~ SHERIFF'S RETURN - REGULAR CASE NO: 2001-04871 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PENNSY SUPPLY INC VS RVG MANAGEMENT & DEVELOPMENT CPL MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon HERSHEY GF the DEFENDANT , at 1145:00 HOURS, on the 27th day of August at 1000 N FRONT ST , 2001 WORMLEYSBURG, PA 17043 by handing to DOUG LEHMAN ATTORNEY FOR BUSINESS a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this /3? day of ~ ~( A.D. ! /Prothonotary So Answers: R. Thomas Kline 08/28/2001 HANDLER HENNING & ROSENBERG ~-~ Deputy ~rif f SHERIFF'S RETURN - REGULAR CASE NO: 2001-04871 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PENNSY SUPPLY INC VS RVG MANAGEMENT & DEVELOPMENT CPL MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ROBRYCE CORP the DEFENDANT , at 1145:00 HOURS, at 1000 N FRON ST WORMLEYSBURG, PA 17043 DOUG LEHMAN on the 27th day of August , 2001 by handing to ATTORNEY FOR BUSINESS a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this /3 ~ day of ~ J~! A.D. 'P~oth-onotary So Answers: R. Thomas Kline 08/28/2001 HANDLER HENNING & ROSENBERG /~ ~' ' ~ Deputy --S~eri f f PENNSY SUPPLy, INC., : Plaintiff : V. RVG MANAGEMENT & : DEVELOPMENT CO.; HERSHEY GF, : LP; and ROBRYCE CORP., its : general partner, Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANiA NO. 01~4871 CIVIL CIVIL ACTION q LAW NOTICE TO PLEAD TO: Pennsy Supply, Inc., Plaintiff W. Scott Henning, Esquire, Attorney for Plaintiff You are hereby notified to file a written response to the enclosed PRELIMINARY OBJECTIONS within twenty (20) days from service hereof or a judgment may be entered against you. LAW OFFICES STEPHEN C. NUDEL, Stephen C. N~del~ Esquire ACtorney ID #41~03 - Mark W. Allshouse, Esquire Attorney ID #78014 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendants PC PENNSY SUPPLy, INC., Plaintiff RVG MANAGEMENT & DEVELOPMENT CO.; HERSHEY GF, LP; and ROBRYCE CORP., its general partner, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANiA NO. 01-4871 CIVIL CIVIL ACTION - LAW PRELIMINARy OBJECTION~ AND NOW, Come Defendants, RVG Management & Development Co.; Hershey GF, LP; and Robryce Corp., its general partner, by and through their attorneys, Law Offices Stephen C. Nudel, PC and respectfully file these Preliminary Objections to Plaintiff,s Complaint as follows. 1. Plaintiff as an alleged third party beneficiary, has filed a Breach of Contract action based upon an alleged Joint Check Agreement between Defendants and Bryan A. Ziegler Excavating & Paving, Inc. ("Subcontractor,,) for the performance of excavating and paving services on a project known as "Hershey Giant Store Project,, ("Project,,.) I. D]/~RRER 2. Paragraph 1 is hereby incorporated by reference as if set forth at length. 3. Defendant has attached a copy of Check Agreement ("Agreement,) as an Exhibit reference. the alleged Joint to its Complaint for 4. Paragraph 3 of the Agreement states that the purpose of the document "is to authorize Hershey GF, LP to issue a joint check when rec~ested by the subcontractor, Bryan A. Ziegler Excavating & Paving, Inc.,, 5. The Agreement does not obligate or require Defendants to issue joint checks without the-request of the Subcontractor. 6. Nowhere in Plaintiff,s Complaint has Plaintiff alleged that the Subcontractor ever requested joint checks to be issued by Defendants to Plaintiff. 7. Plaintiff has failed to plead that all conditions precedent have been met which would require Defendants, payment to Plaintiff. 8. As a result, Plaintiff has failed to plead facts upon which the relief requested may be granted. WHEREFORE, Defendants, RVG Management & Development Co.; Hershey GF, LP; and Robryce Corp., its general partner, respectfully request this Honorable Court to enter an Order on behalf of Defendants and against Plaintiff dismissing Plaintiff,s Complaint. II. DE~IRRER-FAILURE TO PLEAD IN CONFORMITY WIT~ RULE OR LAW 9. Paragraphs 1 through 8 are hereby incorporated by reference as if set forth at length. 10. Paragraph 6 of Plaintiff,s Complaint alleges that RVG Management & Development Co. was engaged as a general contractor on the Project. 11. Paragraph 7 of Plaintiff,s Complaint alleges that RVG Management & Development Co. engaged and entered into a subcontract with Bryan A. Ziegler Excavating & Paving, Inc. 12. against RVG Management & Development Co. 13. Pennsylvania Rule of Civil Procedure 1019(i) states that when a claim or defense is based upon a writing, the pleader shall attach a copy of the writing or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient to provide such statement together with the reasons and set forth the substance of the writing. 14. Plaintiff has failed to attach copies of any documentation which would support its basis that RVG Management & Development Co. is a general contractor for the Project or that RVG Management & Development Co. entered into a subcontract with Bryan A. Ziegler Excavating & Paving, Inc. or its claims against RVG Management & Development Co. 15. As a result of Plaintiff,s failure to attach a copy of the writings or provide sufficient explanation as to why they are not attached, Plaintiff has failed to plead in conformity with the Rule of Law as required by Pennsylvania Rule of Civil Procedure 1028. These two documents form the basis of Plaintiff,s claim WHEREFORE, Defendants, RVG Management & Development Co.; Hershey GF, LP; and Robryce Corp., its general partner, respectfully request this Honorable Court to enter an Order on behalf of Defendants and against Plaintiff pursuant to Pennsylvania Rule of Civil Procedure 1028(2). Respectfully submitted, LAW OFFICES STEPHEN C. NI/DEL, PC en C. Nud~l, Esquire ney ID #~1703 Mark W. Allshouse, Esquire Attorney ID #78014 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendants PENNSY SUPPLY, INC., Plaintiff Vo RVGMJkNAGEMENT & DEVELOPMENT CO.; HERSHEY GF, LP; and ROBRYCE CORP., its general partner, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANiA NO. 01-4871 CIVIL CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: W. Scott Henning, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road P.O. Box 1177 Harrisburg, PA 17108-1177 M~k W. Allshou/e, Esquire Attorney ID #78014 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorney for Defendants U W. Scott Henning, Esquire iD #32298 HANDLER, HENNING & ROSENBERG 1300 Lingtestown Road Harrisburg, PA 17110 (717) 238-2000 ~or Plaintiff PENNSY SUPPLY, INC., Plaintiff RVG MANAGEMENT & DEVELOPMENT CO.; HERSHEY GF LP; and ROBRYCE CORP., its general partner, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4871 CIVIL ACTION - LAW PLAINTIFF'S REPLY TO PRELIMINARY OBJECTIONS AND NOW, comes the Plaintiff, Pennsy Supply, Inc., by and through its attorneys, HANDLER, HENNING & ROSENBERG, byW. Scott Henning, Esquire, respectfully replies to the Defendant's Preliminary Objections as follows: 1. Admitted with clarification. The Defendant refers to the Complaint in Paragraph 1. To the extent that the Complaint is a writing, it speaks for itself and should be read and interpreted in its entirety. I. DEMURRER 2. Paragraph 2 is an incorporation paragraph to which no responsive pleading is required. 3. The allegation set forth in Paragraph 3 is somewhat garbled, however, to the extent that the Defendant is simply endeavoring to make reference to the attachment of the Joint Check Agreement as an exhibit to the Preliminary Objections, there is no need to admit or deny Paragraph 3. By way of further answer, the Joint Check Agreement was not attached to the copy of the preliminary Objections received by Plaintiff's counsel. 4. Denied. The allegation set forth in Paragraph 4 is a recitation of a portion of the Joint Check Agreement. The Agreement being a writing, speaks for itself and should be read and interpreted as a whole. 5. Denied. The allegation set forth in Paragraph 5 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, the Plaintiff asserts that the Agreement, read as a whole, does not obligate the Defendants to issue a joint check only if there is a specific request of the subcontractor. By way of further answer, even if the Court determines that this is a reasonable interpretation of the Agreement, the Plaintiff believes and therefore avers that the subcontractor, Bryan A. Ziegler Excavating, Inc. by and through its employees, agents and representatives made requests upon the Defendant to issue joint checks upon the submission of billing statements. 6. Denied. The allegation set forth in Paragraph 6 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, the Plaintiff asserts that the Agreement, read as a whole, does not obligate the Defendants to issue a joint check only if there is a specific request -2- of the subcontractor. By way of further answer, even if the Court determines that this is a reasonable interpretation of the Agreement, the Plaintiff believes and therefore avers that the subcontractor, Bryan A. Ziegler Excavating, Inc. by and through its employees, agents and representatives made requests upon the Defendant to issue joint checks upon the submission of billing statements. 7. Denied. The allegation set forth in Paragraph 7 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, the Plaintiff asserts that the Agreement, read as a whole, does not obligate the Defendants to issue a joint check only if there is a specific request of the subcontractor. By way of further answer, even if the Court determines that this is a reasonable interpretation of the Agreement, the Plaintiff believes and therefore avers that the subcontractor, Bryan A. Ziegler Excavating, Inc. by and through its employees, agents and representatives made requests upon the Defendant to issue joint checks upon the submission of billing statements. 8. Denied. The allegation set forth in Paragraph 8 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, the Plaintiff asserts that the Agreement, read as a whole, does not obligate the Defendants to issue a joint check only if there is a specific request of the subcontractor. By way of further answer, even if the Court determines that this is a reasonable interpretation of the Agreement, the Plaintiff believes and therefore avers that the subcontractor, Bryan A. Ziegler Excavating, Inc. by and through its employees, agents -3- and representatives made requests upon the Defendant to issue joint checks upon the submission of billing statements. II. DEMURRER- FAILURE TO PLEAD IN CONFORMITY WITH RULE OR LAW 9. Paragraph 9 is an incorporation paragraph to which no responsive pleading is required, however, to the extent applicable, the Plaintiff incorporates its reply to Paragraph 1 through 8 as those set forth at length herein. 10. Admiffed. 11. Admitted. 12. Denied. The allegation set forth in Paragraph 12 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that it is necessary for the two documents impliedly referenced in Paragraph 6 of the Complaint and Paragraph 7 of the Complaint to be attached to the Complaint in order to comply with Pennsylvania Rule of Civil Procedure 1019. By way of further answer, the Plaintiff asserts that the two documents in question are not within the possession and custody of the Plaintiff, but rather are documents that are clearly within the possession and/or custody of the Defendant. The absence of the attachment of those two documents to the Complaint does not in any way effect the Defendant's ability to understand the nature of the cause of action being asserted against it or to prepare a proper defense to the cause of action. If in fact the Defendant is not the general contractor on the subject Project, they can simply deny that -4- allegation. Further, if the Defendant did not have a subcontract relationship with Bryan A. Ziegler Excavating and Paving, Inc., that fact can simply be denied also. 13. Denied. The allegation set forth in Paragraph 13 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that it is necessary for the two documents impliedly referenced in Paragraph 6 of the Complaint and Paragraph 7 of the Complaint to be attached to the Complaint in order to comply with Pennsylvania Rule of Civil Procedure 1019. By way of further answer, the Plaintiff asserts that the two documents in question are not within the possession and custody of the Plaintiff, but rather are documents that are clearly within the possession and/or custody of the Defendant. The absence of the attachment of those two documents to the Complaint does not in any way effect the Defendant's ability to understand the nature of the cause of action being asserted against it or to prepare a proper defense to the cause of action. If in fact the Defendant is not the general contractor on the subject Project, they can simply deny that allegation. Further, if the Defendant did not have a subcontract relationship with Bryan A. Ziegler Excavating and Paving, Inc., that fact can simply be denied also. 14. Denied. The allegation set forth in Paragraph 14 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that it is necessary for the two documents impliedly referenced in Paragraph 6 of the Complaint and Paragraph 7 of the Complaint to be attached to the Complaint in order to comply with Pennsylvania Rule of Civil -5- Procedure 1019. By way of further answer, the Plaintiff asserts that the two documents in question are not within the possession and custody of the Plaintiff, but rather are documents that are clearly within the possession and/or custody of the Defendant. The absence of the attachment of those two documents to the Complaint does not in any way effect the Defendant's ability to understand the nature of the cause of action being asserted against it or to prepare a proper defense to the cause of action. If in fact the Defendant is not the general contractor on the subject Project, they can simply deny that allegation. Further, if the Defendant did not have a subcontract relationship with Bryan A. Ziegler Excavating and Paving, Inc., that fact can simply be denied also. 15. Denied. The allegation set forth in Paragraph 14 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that it is necessary for the two documents impliedly referenced in Paragraph 6 of the Complaint and Paragraph 7 of the Complaint to be attached to the Complaint in order to comply with Pennsylvania Rule of Civil Procedure 1019. By way of further answer, the Plaintiff asserts that the two documents in question are not within the possession and custody of the Plaintiff, but rather are documents that are cleady within the possession and/or custody of the Defendant. The absence of the attachment of those two documents to the Complaint does not in any way effect the Defendant's ability to understand the nature of the cause of action being asserted against it or to prepare a proper defense to the cause of action. If in fact the Defendant is not the general contractor on the subject Project, they can simply deny that -6- allegation. Further, if the Defendant did not have a subcontract relationship with Bryan A. Ziegler Excavating and Paving, Inc., that fact can simply be denied also. WHEREFORE, Plaintiff requests the Honorable Court to deny and dismiss the Defendant's Preliminary Objections and order the Defendant to file an Answer to the Complaint within ten (10) days. Date: Respectfully submitted, By: W. Sc -7- PENNSY SUPPLY, INC., Plaintiff RVG MANAGEMENT & DEVELOPMENT CO.; HERSHEY GF, LP; and ROBRYCE CORP., its general partner, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4871 Civil Term CIVIL ACTION - LAW C ERTIFICA TE OF SERVICE,, I hereby certify that a true and correct copy of. the foregoing Plaintiff's Reply to Preliminary Objections was served on this .~/~ day of March, 2002, by First Class U.S. Mail, upon the following: Stephen C. Nudel, Esquire 219 Pine Street Harrisburg, PA 17101 Date: March ~:2~,2002 HANDLE~iirR~~ENBERG W. ScottH~ ~