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HomeMy WebLinkAbout13-2417 THE Pt o �goho TAij y 2013 HAY -2 AM 9: 52 PAUL R. OBER & ASSOCIATES PENNSYLVANIA BY: Joseph A. La Flamme, Esquire Attorney I.D. #73603 234 North Sixth Street Reading PA 19601 (610) 378 -0121 Attorney for Claimant Rahns Construction Materials Co., a division IN THE COURT OF COMMON PLEAS of H.Y.K. Construction Co., Inc., CUMBERLAND COUNTY, PENNSYLVANIA Claimant CIVIL ACTION - LAW 1 j� v. NO. /� �✓ US Real Estate Limited Partnership, Respondent MECHANICS' LIEN CLAIM (720 Allen Road, Carlisle, Cumberland County, Pennsylvania) AND NOW, comes Claimant, Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc. and hereby files the following Mechanics' Lien Claim for the labor and materials furnished by Claimant in connection with and incidental to the construction of improvements for the Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Cumberland County, Pennsylvania including, but not limited to, providing and operating a portable concrete plant and suppling concrete materials to and for the project, herein described, upon the following statements: 1. Claimant, Rahns Construction Material Co., a Division of H.Y.K. Construction Co., Inc., with an address of 430 Rahns Road, Rahns, Pennsylvania 19426 files this Mechanics' Lien awl 4,x CV.LL g6,0( a gcl 9 N6 Claim as Subcontractor. 2. The Owner and/or Reputed Owner of the property subject to the lien is US Real Estate Limited Partnership ( "Owner ") with an address of 9830 Colonnade Boulevard, Suite 600, San Antonio, Texas 78230. 3. The date upon which Claimant completed the work for which claim is made was on or about December 10, 2012. 4. The Contract under which the work was done and materials furnished was made with J.F. Neuber, Jr. General Contractor, Inc. (the "Contractor "),a Pennsylvania corporation with a place of business at 42 Ridge Road, Phoenixville, Pennsylvania 19464 and a mailing address of P.O. Box 745, Kimberton, Pennsylvania 19442. 5. Neuber's Contract was with R.S. Mowery & Sons, Inc., the General Contractor who had a contract with the Owner for construction of the Project. 6. Claimant files this claim under a contract with the Contractor wherein Claimant agreed to furnish labor and materials in connection with and required for the Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Cumberland County, Pennsylvania. 7. The general nature and character of labor and materials furnished by Claimant was in connection with and incidental to the construction of improvements for the Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Cumberland County, Pennsylvania including, but not limited to, providing and operating a portable concrete plant and suppling concrete materials to and for the project. 8. To the extent that Claimant has not completed improvements, Claimant has been excused, prevented and/or hindered by the Owner and /or Contractor from completing the 2 improvements due to, inter alia, lack of payment. 9. Formal notice of intention to file a Mechanics' Lien Claim was served on Owner by Certified Mail on or about March 25, 2013 as evidenced by copies of said formal notice attached hereto as Exhibit "A." 10. This claim is made for the work, labor and materials described below: a. Concrete: 4,000 psi NA SOG Mix — 7,163 cubic yards at $43.99/ cubic yard b. Concrete: 4,000 psi NA 1NF -1 Mix — 48 cubic yards at $46.11 /cubic yard C. Concrete: 4,500 psi AE Mix — 88.5 cubic yards at $46.91 /cubic yard 11. The amount claimed due Claimant is Three Hundred Twenty Thousand Eight Hundred Forty Nine and 91/100 Dollars ($320,849.91) plus interest. 12. The property subject to the lien is all that certain piece, parcel or lot of land and the building or buildings thereon known as Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Cumberland County, Pennsylvania 17105. 13. Any waiver of liens that may have been filed is against public policy, ineffective, unlawful, and/or void under the Pennsylvania Mechanics' Lien Law of 1963, as amended. Respectfully submitted, PAUL R. OBER & ASSOCIATES By: A h A. La Flamme, Esquire Attorney for Claimant F:\Rahns\Mountain Creek Distribution Center\Mechanics' Lien Claim Rahns Concrete.wpd 3 EXHIBIT A PAUL Q. 05EQ 0 A&SOCIATE(S A PENNSYLVANIA PARTNERSHIP PAUL R. OBER ATTORNEYS AT LAW TERRY L. PARISH 234 N. 0 STREET JOHN J. MURPHY, JR. (1984) JAMES L. DAVIS' READING, PENNSYLVANIA 19601 CHARLES M. WATKINS JOSEPH A. LA FLAMME, P.E.• BOYERTOWN OFFICE: THOMAS C. ANEWALT Bo t-o , PA 19512 MICHELLE A. RHIZOR+ aggressive advocacy (610) 367 -6991 (610) 378 -0121 FAX (610) 378 -9712 • ALSO MEMBER CALIFORNIA BAR jalaflamme @oberandassociates.com ` ALSO MEMBER NEW JERSEY & FLORIDA BARS t LL-M. IN TAXATION ALSO MEMBER NEW JERSEY BAR - LICENSED PROFESSIONAL ENGINEER March 22 IN PENNSYLVANIA, FLORIDA & NEW YORK , 2013 VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED US Real Estate Limited Partnership 9830 Colonnade Boulevard, Suite 600 San Antonio, TX 78230 RE: Mountain Creek Distribution Center Project 720 Allen Road, Carlisle, Pennsylvania Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc. NOTICE OF INTENTION TO FILE MECHANICS' LIEN To Whom It May Concern: This Firm represents Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc., with regard to work performed on the Mountain Creek Distribution Center Project located at 720 Allen Road, Carlisle, Pennsylvania (the "Project "). Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc., is currently owed in excess of Three Hundred Twenty Thousand Eight Hundred Forty Nine and 91/100 Dollars ($320,849.91) for work, labor, materials and equipment provided and/or performed in connection with the Project. Be advised that Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc. intends to file a mechanics' lien against the real property upon which it performed the work, including, but not limited to, real property owned in whole or in part by US Real Estate Limited Partnership for the work, labor, materials and equipment provided and/or performed in connection with the Project. Enclosed is the Notice of Intention to File Mechanics' Lien addressed to US Real Estate Limited Partnership. Also, please forward to us any and all Payment Bonds posted with regard to the Project. SUBURBAN OFFICES b appointment HAMBURG, PA 19526 (610) 562 -5879 1244 -'TEST HAMILTON STREET, AU.ENTO -TN, pA 18102 (610) 437 -4455 P.O. BOX 196, SIaPPACK, PA 19474 (484) 576 -0233 IDAUL Q. 015EQ 01880CIATE8 US Real Estate Limited Partnership March 22, 2013 Page 2 Should you have any questions, do not hesitate to contact me. Very truly yours, PAUL R. OBER & ASSOCIATES o ph A. La Flamme, Esquire JAL /wak Enclosure cc: J.F. Neuber, Jr. General Contracting, Inc. R.S. Mowery & Soris John B. Haines, IV Jack Kibblehouse Dan Condiles ( U Po stal S ervice ' ( Domestic -,CERTIFIED MAIL RECEIPT • m o A rticle a ru US Real Estate Limited Partnership ti Ir Postage $ . 46 Q' M Certified Fee 3.10 Postmark C Return Receipt Fee .,{fHere r1 (Endorsement Required) 2.55 C3 C3 Restricted Delivery Fee ` (Endorsement Required) lim O Total Postage & Fees $ 6.11 M Name Please riot Clearly) (to be completed by mailer) US �Rea� Estate Limited Partnership - - - - -- - -- - - - -- - Q- Street, Apt. No.; or PC Box No. IT C3 9830 Colonnade Boulevard, Suite 600 [�- City Safe, ZIP +4 ------------------°-----------°------------------------------------- San Antonio, TX 78230 3 PS Form 3 800 , July 1999 See�Reverse for instructions i C OMPLETE • ■ Complete items 1, 2, and 3. Also complete A. Signature item 4 if Restricted Delivery is desired. ❑ Agent ■ Print your name and address on the reverse X ❑ Addressee so that we can return the card to you. B. Received by (Printed ame) C. Da of Delivery N Attach this card to the back of the mailpiece, or on the front if space permits. L D. Is delivery address different from item 1? ❑ Yes 1 _ Article Addressed to: If YES, enter delivery address below:, ❑ No - US Real Estate Limited Partnersh 9830 Colonnade Boulevard, Suite 00 San Antonio, TX 78230 3. Service Type M Certified Mail ❑ Express Mail ❑ Registered M Return Receipt forNerchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes 2: Article Number 7099 3400 0010 3992 2103 (Transfer from service label) i PS Form 3811 February 2004 Domestic Return Receipt 102595 -02 -M -1540 ; NOTICE OF INTENTION TO FILE MECHANICS' LIEN TO: US REAL ESTATE LIMITED PARTNERSHIP NAME OF CLAIMANT: Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc. NAME OF PERSON WHOM CLAIMANT CONTRACTED: J.F. Neuber, Jr. General Contractor, Inc. AMOUNT CLAIMED DUE: Three Hundred Twenty Thousand Eight Hundred Forty Nine and 91/100 Dollars ($320,849.91) GENERAL NATURE AND CHARACTER . The general nature and character of labor and materials furnished by Claimant was in connection with and incidental to the construction of improvements for the Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Pennsylvania and included, but was not- limited to, providing and operating a portable concrete plant and suppling concrete materials to and for the project. DATE OF COMPLETION OF WORK or DAY LAST WORKED ON PROJECT: December 10, 2012 DESCRIPTION OF PROPERTY SUBJECT TO LIEN Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Pennsylvania 17105 THIS NOTICE IS TO INFORM YOU THAT THE ABOVE NAMED CLAIMANT INTENDS TO FILE A MECHANIC'S LIEN CLAIM FOR THE WORK AND MATERIALS PROVIDED. F:\Rahns\Mountain Creek Distribution Center \Notice of Intention to file Mechanics lien Concrete.wpd VERIFICATION I, John R. Kibblehouse, Sr., state under the penalties of 18 Pa.C.S. Section 4904 (relating Secretar to unsworn falsification to authorities) that I am Treasurer of Rahns Trucking, Inc. , a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania; that I make this verification on its behalf being authorized to do so; and that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. Dated: ,5- 1 )) N 6�John R. Kibblehouse, Sr. SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson +-OFFICE Sheriff ,- F� 1140HOTAFO Jody S Smith Chief Deputy ` Richard W Stewart _ sI 5VASolicitor NNYLN1A PE Rahns Construction Material Co., a Division of H.Y.K. Construction Co. Case Number vs. 2013-2417 US Real Estate Limited Partnership, SHERIFF'S RETURN OF SERVICE 05/16/2013 12:59 PM - Deputy William Cline, being duly sworn according to law, served the requested Mechanics Lien Claim upon the within named Defendant, to wit: US Real Estate Limited Partnership„ pursuant to Order of Court by"Posting"the premises located at 720 Allen Road, South Middleton, Carlisle, PA 17015 With a true and correct copy according to law. LLIAM CLINE, DEPUTY SHERIFF COST: $40.78 SO E May 17, 2013 R NY R ANDERSON;SHERfF—F--- -0 NOTARIAL SEAL CLAUDIA A.BREWBAKER,NOTARY PUBIC Carlisle Boro,Cumberland Couoty My Commisslon.Expires April 4,2017 ---------- ------ ------- --------------- --------------------- ------ ------------------------------ ------------ ------- NOTARY Affirmed and subscribed to before me this or day of G'C (/ (c)CountySuite Sheriff,Toleosoft,Inc 411. i ai: i 6`liJ 1 I I�0 j, t�-1a JL N --4 AI; 10: 24 'CUM F-RLAND COUNTY PAUL R. OBER& ASSOCIATES PENNSYLVANIA BY: Joseph A. La Flamme, Esquire Attorney I.D. #73603 234 North Sixth Street Reading PA 19601 (610) 378-0121 Attorney for Claimant Rahns Construction Materials Co., a division IN THE COURT OF COMMON PLEAS of H.Y.K. Construction Co., Inc., CUMBERLAND COUNTY, PENNSYLVANIA Claimant CIVIL ACTION-LAW V. NO. 13-2417 MLD US Real Estate Limited Partnership, Respondent AFFIDAVIT OF SERVICE (720 Allen Road, Carlisle, Cumberland County, Pennsylvania) COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF BERKS I,Joseph A. La Flamme,Esquire,being duly sworn according to law and depose and say as follows: 1. At 12:59 p.m. on May 16,2013,the Cumberland County Sheriff duly served upon US Real Estate Limited Partnership by posting a notice of the filing of the Mechanics' Lien Claim filed herein bearing the Court,term and number and date of filing of said Claim. True and correct copies of the Cumberland County Sheriff's Department's Request for Service and Return of Service are attached hereto as Exhibit "A." 2. A true and correct copy of the Mechanics'Lien Claim Notice of Claim to Owners is attached hereto as Exhibit`B." Respectfully submitted, PAUL R. OBER& ASSOCIATES By: o ph gA. La 4Flamme, Esquire ttorney for Claimant F:\Rahns\Mountain Creek Distribution CenterW,ffidavit of Service-Rahns Concrete.wpd EXHIBIT A Request for Service Ronny R.Anderson, Sheriff Cumberland County Office of the Sheriff One Courthouse Square Carlisle, PA 17013 Ph: 717-240.6390 Fx: 717.z4O.6397 Plaintiff/s: Court Number: 3-2417 MLD Rahns Construction Material Co.,a Division of Expiration Date: JUne 1,2013 HYX Construction Co.,Inc. Type of Action: Mechanics'Lien Claim Defendant/s: US Real Estate Limited Partnership Serve Upon: US Real Estate Limited Partnership,Mountain Creek Distribution Center Address for Service: 720 Allen Road Carlisle State 17105 F77 I Alternate Address for for Service: State �A Type of Service: F—, Adult in Charge Personal Deputize Certified Mail F>7(,. Posting **Copy of Court Order Required with Posting— Special Service Instructions: Post upon a conspicuous part of the improvement pursuant to Pennsylvania Statute 49 Section 1502(c). *If service is to be made by deputized service to another county please specify which county* Filing Attorney: Name: oseph A.La Flamme,Esquire 234 North 6th Street Reading State ............... ----------- Phone Number: +1 (610)378-0121 _ SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor Rahns Construction Material Co., a Division of H.Y.K. Construction Co. vs. Case Number US Real Estate Limited Partnership, 2013-2417 SHERIFF'S RETURN OF SERVICE 05/16/2013 12:59 PM - Deputy William Cline, being duly sworn according to law, served the requested Mechanics Lien Claim upon the within named Defendant, to wit: US Real Estate Limited Partnership„ pursuant to Order of Court by"Posting"the premises located at 720 Allen Road, South Middleton, Carlisle, PA 17015 with a true and correct copy according to law. ALLIAM CLINE, DEPUTY SHERIFF COST: $40.78 SO � -- May 17, 2013 R 9ZNYR ANDERSON;SHE:RfPF- NOTARIAL SEAL CLAUDIA A. BREWRAKER, NOTARY PU IC Carlisle Bom,Cumberland County t My Commission Expires April 4, 2017 � ------- NOTARY Affirmed and subscribed to before me this r 1 day ofC .:' C /2, County5ullo Sh .riff,701cosoft Inc, EXHIBIT B PAUL R. OBER&ASSOCIATES BY: Joseph A. La Flamme, Esquire Attorney I.D. #73603 234 North Sixth Street Reading PA 19601 (610) 378-0121 Attorney for Claimant Rahns Construction Materials Co., a division IN THE COURT OF COMMON PLEAS of H.Y.K. Construction Co., Inc., CUMBERLAND COUNTY, PENNSYLVANIA Claimant CIVIL ACTION - LAW V. NO. 13-2417 MLD US Real Estate Limited Partnership, : Respondent MECHANICS' LIEN CLAIM NOTICE OF CLAIM TO OWNERS (720 Allen Road, Carlisle, Cumberland County,Pennsylvania) TO: US Real Estate Limited Partnership Mountain Creek Distribution Center 720 Allen Road Carlisle,PA 17105 TAKE NOTICE that on the 2nd day of May, 2013 in the Court of Common Pleas of Cumberland County at number and term 13-2417 MLD,Rahns Trucking,Inc.has filed a Mechanics' Lien Claim for labor and materials furnished by Claimant was in connection with and incidental to the construction of improvements for the Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Cumberland County, Pennsylvania including, but not limited to, providing and operating a portable concrete plant'and suppling concrete materials to and for the project. A true and correct copy of the Mechanics' Lien Claim is attached hereto By: a eph A. La Flamme, Esquire Attorney for Claimant FARahnsWountain Creek Distribution CenterWotice of Claim to Owners-Rahns Concrete.wpd ONO 2013 MA 4_M 9 PAUL R. OBER & ASSOCIATES CL1P18ERLAqAN�At"r'TY BY: Joseph A. La Flamme, Esquire PENNSYL -.---A-ttorney-l-D-.1-7-36-03- 234 North Sixth Street Reading PA 19601 (610) 378-0121 Attorney for Claimant Rahns Construction Materials Co., a division IN THE COURT OF COMMON PLEAS of H.Y.K. Construction Co., Inc., CUMBERLAND COUNTY, PENNSYLVANIA Claimant CIVIL ACTION - LAW V. NO. US Real Estate Limited Partnership, Respondent MECHANICS' LIEN CLAIM (720 Allen Road, Carlisle,Cumberland County, Pennsylvania) AND NOW, comes Claimant, Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc. and hereby files the following Mechanics' Lien Claim for the labor and materials furnished by Claimant in connection with and incidental to the construction of improvements for the Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Cumberland County,Pennsylvania including,but not limited to,providing and operating a portable concrete plant and suppling concrete materials to and for the project, herein described, upon the following statements: 1. Claimant, Rahns Construction Material Co., a Division of H.Y.K. Construction-Co., Inc., with an address of 430 Rahns Road, Rahns, Pennsylvania 19426 files this Mechanics' Lien Claim as Subcontractor. 2. The Owner and/or Reputed Owner of the property subject to the lien is US Real Estate Limited Partnership ("Owner") with an address of 9830 Colonnade Boulevard, Suite 600, San Antonio,Texas 78230. 3. The date upon which Claimant completed the work for which claim is made was on or about December 10, 2012. 4. The Contract under which the work was done and materials furnished was made with J.F. Neuber, Jr. General Contractor, Inc. (the "Contractor"),a Pennsylvania corporation with a place of business at 42 Ridge Road,Phoenixville,Pennsylvania 19464 and a mailing address of P.O. Box 745,Kimberton,Pennsylvania 19442. 5. Neuber's Contract was with R.S. Mowery & Sons, Inc.,the General Contractor who had a contract with the Owner for construction of the Project. 6. Claimant files this claim under a contract with the Contractor wherein Claimant agreed to furnish labor and materials in connection with and required for the Mountain Creek Distribution Center located at 720 Allen Road,Carlisle,Cumberland County,Pennsylvania. 7. The general nature and character of labor and materials ftu-nished by Claimant was in connection with and incidental to the construction of improvements for the Mountain Creek Distribution Center located at 720 Allen Road,Carlisle,Cumberland County,Pennsylvania including,but not limited to,providing and operating a portable concrete plant and suppling concrete materials to and for the project. 8. To the extent that Claimant has not completed improvements, Claimant has been excused, prevented and/or hindered by the Owner and/or Contractor from completing the 2 improvements due to, inter alia, lack of payment. 9. Formal notice of intention to file a Mechanics'Lien Claim was served on Owner by Certified Mail on or about March 25, 2013 as evidenced by copies of said formal notice attached hereto as Exhibit"A." 10. This claim is made for the work, labor and materials described below: a. Concrete: 4,000 psi NA SOG Mix—'7,163 cubic yards at$43.99/cubic yard b. Concrete: 4,000 psi NA INF-1 Mix—48 cubic yards at $46.11/cubic yard C. Concrete: 4,500 psi AE Mix—88.5 cubic yards at $46.91/cubic yard 11. The amount claimed due Claimant is Three Hundred Twenty Thousand Eight Hundred Forty Nine and 91/100 Dollars($320,849.91) plus interest. 12. The property subject to the lien is all that certain piece,parcel or lot of land and the building or buildings thereon known as Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Cumberland County, Pennsylvania 17105. 13. Any waiver of liens that may have been filed is against public policy,ineffective,unlawful, and/or void under the Pennsylvania Mechanics' Lien Law of 1963, as amended. Respectfully submitted, PAUL R. OBER& ASSOCIATES pph A. La Flamme, Esquire Attorney for Claimant MahnsWountain Creek Distribution CenterWeebanics'Lien Claim Rahns Concrete.wpd 3 EXHIBIT A DAUL I. OBEQ (?5 A880CIATE(S A PAMWEP-6HiP DAUL R.OBER ATTORNEYS AT LAW JOHN J.MURPHY,JR.(1994-) TERRY L.PARISH 234 N.0 STREET JAMES L.DAVIS READING,PENNSYLVANIA 19601 CHARLES M.WA=S BOYERTOWN OFFICE: )OSEPH A-LA FLANiME,P.E.. BeryeMviy PA 19512 1 HOMA$C.ANET?iT T d (6n)367-6991 MICHELLE A.RHIZOR` aggressive a vaQacy -.--.-.. (610 378-0121 FAX(61D)378-9712 -- --- ALSO MEMBER,CALIFOP.NIABAR jalaflamme @oberandassociates.com ALSO MEMBER NEW JERSEY L+FLOPSDA BAP LLM.IN TAXATION a ALSO MEMBEP,NEW JERSEY BAP. `LUCENSED PROFESSIONAL ENGINEER March 22, 2013 IN PENNSYLVANIA,FLOPMA&NEW YOPT VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED US Real Estate Limited Partnership 9830 Colonnade Boulevard, Suite 600 San Antonio, TX 78230 RE: Mountain Creek Distribution Center Project 720 Allen Road, Carlisle, Pennsylvania Rahns Construction Materials Co., a division of H.Y.K. Construction Co.,Inc. NOTICE OF INTENTION TO FILE MECHANICS' LIEN To Whom It May Concern: This Firm represents Rahns Construction Materials Co., a division of H.Y.K. Construction Co.,Inc.,with regard to work performed on the Mountain Creek Distribution Center Project located at 720 Allen Road, Carlisle, Pennsylvania (the "Project"). Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc., is currently owed in excess of Three Hundred Twenty Thousand Eight Hundred Forty Nine and 91/100 Dollars ($320,849.91) for work, labor, materials and equipment provided and/or performed in connection with the Project. Be advised that Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc. intends to file a mechanics' lien against the real property upon which it performed the work, including, but not limited to, real property owned in whole or in part by US Real Estate Limited Partnership for the work,labor,materials and equipment provided and/or performed in connection with the Project. Enclosed is the Notice of Intention to File Mechanics' Lien addressed to US Real Estate Limited Partnership. Also, please forward to us any and all Payment Bonds posted with regard to the Project. SUBUP.B_4N OFFICES by evpoin4men4 H-A-MBUP.G,PA 195?6 (610) 362-5879 1244 WEST HA ULTON STREET,A.T J:F OWN,PA 18102 (610)437-4-4:55 P.O.BOX 196, SnPPACK, PA 194 74- 576-0233 IDAUL ID. OBEQ 0 A880CIATE8 US Real Estate Limited Partnership March 22, 2013 Page 2 Should you have any questions, do not hesitate to contact me. Very truly yours, PAUL R. OBER& ASSOCIATES o ph A. La Flamme, Esquire JAL/wak Enclosure cc: J.F. Neuber, Jr. General Contracting, Inc. R-S.-Mowery& Sons- John B. Haines, IV Jack Kibblehouse Dan Condiles m C3 ra `u US Real Estate Limited Partnership ru tr Postage $ .46 Er- m Certified ee 3_1-0 Postmark ---- 0 Return Receipt Fee ,rttiere r-=1 (Endorsement Required) 2.55 rAl. C3 ° Restricted Delivery Fee (Endorsement Required) ° O Total Postage&Fees $ 6.11 M N me lease not Clearly)(to be completed by mailer) IBS R,ea-- Estate Limited Partnership ------t,Apt. .;or--- ---- ---------------- Street,Apt.No.;or PO Box No. -""`-""'-'---° C3 ° 9830 Colonnade Boulevard, Suite 600 ------------------------------ [� City,Stafe.ZPi-q "----'--------------------------°------- San Antonio, TX 78230 1 0 0 REMOVE M Complete items 1,2,and 3.Also complete A- Signature item 4 if Restricted Delivery is desired. ` ❑Agent ® Print your name and address on the reverse ❑Addressee so that we can return the card to you. B. Received by(Printed ame) C. Da of Delivery a.Attach this card to the back of the mailpiece, _ or on the front if space permits. 2L D. Is delivery address different from item 1? 13 Yes 1, Article Addressed to: If YES,enter delivery address below.. ❑No US Real Estate Limited Partnersh 9830 Colonnade Boulevard, Suite WO San Antonio, TX 78230 3, Service Type It Certified Mail 13 Express Mail ❑Registered M Return Receipt for Merchandise ❑ Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2i Article Number 7099 3400 0010 3992 2103 (Transfer from service labeg PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540; NOTICE OF INTENTION TO FILE MECHANICS' LIEN TO: US REAL ESTATE LIMITED PARTNERSHIP N Co., I Construction Materials Co.,a division of H.Y.K. Construction Co., nc. NAME OF PERSON WHOM CLAIMANT CONTRACTED: J.F.Neuber, Jr. General Contractor, Inc. AMOUNT CLARVIED DUE: Three Hundred Twenty Thousand Eight Hundred Forty Nine and 91/100 Dollars ($320,849.91) GENERAL NATURE AND CHARACTER The general nature and character of labor and materials furnished by Claimant was in connection with and incidental to the construction of improvements for the Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Pennsylvania and included, but was not- -- limited to,providing and operating a portable concrete plant and suppling concrete materials to and for the project. DATE OF COMPLETION OF WORK or DAY LAST WORKED ON PROJECT: December 10, 2012 DESCRIPTION OF PROPERTY SUBJECT TO LIEN Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Pennsylvania 17105 THIS NOTICE IS TO INFORM YOU THAT THE ABOVE NAMED CLAIMANT INTENDS TO FILE A MECHANIC'S LIEN CLAIM FOR THE WORK AND MATERL4LS PROVIDED. FAR.ahnsWountain Creek Distribution CenterWotice of Intention to file Mechanics lien Concrete.wpd VERIFICATION I,John R. Kibblehouse,Sr., state under the penalties of 18 Pa.C.S. Section 4904 (relating Secretary/ to unworn falsification to authorities) that I am Treasurer of Rahns Trucking, Inc. , a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania;that I make this verification on its behalf being authorized to do so; and that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. Dated: John R. Kibblehouse, Sr. j.. r l'l_ ^/.h- {1ty,i(((Ft jyiC`fi (p�I 1 331y4{1VfIVl�4 T�'ll ,ld X013 JUL AV, I0- its McNEES WALLACE & NURICK LLC CUMBERLAND COUNTY James W. Kutz, Esquire PENNSYLVANIA I.D. No. 47245 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108 (717) 237-5441 jkutz .mwn.com Attorneys for Respondent Rahns Construction Materials Co., a IN THE COURT OF COMMON PLEAS OF division of H.Y.K. Construction Co., Inc., CUMBERLAND COUNTY, PENNSYLVANIA Claimant V. CIVIL ACTION — LAW US Real Estate Limited Partnership, NO. 13-2417 MLD Respondent MOTION TO DISCHARGE MECHANICS' LIEN AGAINST PROPERTY AND NOW comes US Real Estate Limited Partnership ("US Real Estate"), through their undersigned counsel, and petitions this Honorable Court to discharge the mechanics' lien against property owned by Respondent filed by Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc. ("Rahns Construction"), and in support thereof, avers the following: 1. US Real Estate is the owner or purported owner ("Owner"), as that term is defined in the Mechanics' Lien Law of 1963, 49 P.S. § 1101 et seq., as amended, of the real property located at 720 Allen Road, Carlisle, Pennsylvania ("Property"). 2. R.S. Mowery & Sons, Inc. ("Mowery") served as the general contractor for the construction of a warehouse/office facility for Owner located on the aforesaid Property ("Project"). 3. On or about May 2, 2013, Rahns Construction filed in the Office of the Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, a mechanics' lien claim for the sum of $320,849.91 ("Rahns Construction's Lien Claim") against US Real Estate's interest in the Project and Property for materials, labor, and equipment allegedly provided pursuant to an alleged contract between Rahns Construction and J.F. Neuber, Jr. General Contractor, Inc. ("Neuber"), a subcontractor to Mowery on the Project. 4. Concurrently with the filing of the mechanics' lien described herein, a separate entity of Rahns, Rahns Trucking, Inc. ("Rahns Trucking") filed in the Office of the Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, a mechanics' lien claim for the sum of$467,345.58 ("Rahns Trucking's Lien Claim") against US Real Estate's interest in the Project and Property for materials, labor, and equipment allegedly provided by Rahns Trucking pursuant to an alleged contract between Rahns Trucking and Neuber, a subcontractor to Mowery on the Project. A similar motion to discharge the Rahns Trucking's Lien Claim Against Property is being filed concurrently herewith with this Honorable Court. 5. The Pennsylvania Mechanics' Lien Law, specifically Section 1510(d), authorizes this Motion to Discharge Mechanics' Lien Against Property and the deposit of security in double the amount of the lien as the security proposed by US Real Estate herein. 6. US Real Estate requested its general contractor, Mowery, to discharge Rahns Construction's Lien Against Property by filing appropriate security with the 2 Cumberland County Court of Common Pleas pursuant to Section 1510 of Pennsylvania's Mechanics' Lien Law. 7. US Real Estate attaches hereto, and incorporates herein, a Surety Bond obtained by its general contractor, Mowery, in double the amount of Rahns Construction's Lien Claim. The aforesaid Surety Bond is attached hereto as Exhibit A. 8. The attached Surety Bond satisfies and complies with all requirements of Pennsylvania's Mechanics' Lien Law. 9. Counsel for US Real Estate has personally communicated with counsel for Rahns Construction with respect to this Motion to Discharge Mechanics' Lien Against Property and Proposed Order. 10. Counsel for Rahns Construction has affirmatively agreed to US Real Estate's Motion to Discharge Mechanics' Lien Against Property pursuant to 49 P.S. § 1510(d). WHEREFORE, US Real Estate Limited Partnership respectfully requests that this Honorable Court determine the amount and form of the proposed Surety Bond to be proper, and that the Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, be directed to discharge of record Rahns Construction's Lien 3 Claim Against Property filed on May 2, 2013, in the Court of Common Pleas of Cumberland County, Pennsylvania. Respectfully submitted, MCNEES WALLACE & NURICK LLC BY t Dmes W. WOZ . No. 4 7 2-t 5 Geoffrey B. Fehling I.D. No. 311711 100 Pine Street, P. O. Box 1166 Harrisburg, PA 17108-1166 Telephone: (717) 237-5441 Attorneys for US Real Estate Limited Partnership Dated: July l� , 2013 4 EXHIBIT A TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA COMMONWEALTH OF PENNSYLVANIA Bond No. 105873518 COUNTY OF CUMBERLAND In the Matter of the Application of R.S.Mowery&Sons,Inc., BOND DISCHARGING Contractor MECHANIC'S LIEN For an Order Discharging a Certain Mechanic's Lien Filed by Rahns Construction Materials Co., a division of H.Y.K. Construction Co.,Inc., Lienor KNOW ALL MEN BY THESE PRESENTS, That we, R.S. MOWERY & SONS, INC., as Principal, and TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a Corporation created, organized and existing under and by virtue of the laws of the State of Connecticut, as Surety, are held and firmly bound unto RAHNS CONSTRUCTION MATERIALS CO., a division of H.Y.K. CONSTRUCTION CO., INC. ("Rahn Construction"), in the sum of Six Hundred Forty One Thousand Six Hundred Ninety Nine and 82/100 Dollars ($641,699.82), lawful money of the United States of America, conditioned for the payment of any and all amounts finally determined to be due to Rahns Construction relating to the mechanic's lien described herein. WHEREAS, on the 2nd day of May, 2013, a certain mechanic's lien claim in the amount of Three Hundred Twenty Thousand Eight Hundred Forty Nine and 91/100 Dollars ($320,849.91) was filed by Rahns Construction in the Court of Common Pleas of Cumberland County, Pennsylvania, at No. 13-2417 MLD, against property allegedly owned by US Real Estate Limited Partnership,alleged owners,which is described as follows: Mountain Creek Distribution Center,720 Allen Road,Carlisle,Pennsylvania 17105 NOW, THEREFORE, THE CONDITION of this obligation is such that if the above bounden R.S. Mowery & Sons,Inc.,or its assign, shall well and truly pay amounts finally determined to be due to Rahns Construction in the mechanic's lien proceedings or in any action to enforce said lien,not exceeding the sum of Six Hundred Forty One Thousand Six Hundred Ninety Nine and 82/100 Dollars ($641,699.82), then this obligation is void, otherwise to remain in full force and effect. SEALED with our seals and dated this 28th day of May,2013. R.S.MOWERY&SONS,INC. • BY: ruce o dale,Executive Vice Ilresident TRAVnERSASU TY AND SURETY COMP CA BY: Rob A orney in fact WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER POWER OF ATTORNEY TRAVELERSJ� Farmington Casualty Company St.Paul Mercury Insurance Company Fidelity and Guaranty Insurance Company Travelers Casualty and Surety Company Fidelity and Guaranty Insurance Underwriters,Inc. Travelers Casualty and Surety Company of America St.Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company St.Paul Guardian Insurance Company Attorney-In Fact No. 214134 Certificate No. 004004357 KNOW ALL MEN BY THESE PRESENTS:That St.Paul Fire and Marine Insurance Company,St.Paul Guardian Insurance Company and St.Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota,that Farmington Casualty Company,Travelers Casualty and Surety Company,and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut,that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland,that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa,and that Fidelity and Guaranty Insurance Underwriters,Inc.,is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the"Companies"),and that the Companies do hereby make,constitute and appoint Robert N.Striewig Jr.,and Anthony S.Phillips of the City of Wormleysburg State of Pennsylvania their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above,to sign,execute,seal and acknowledge any and all bonds,recognizances,conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons,guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or,permitte&in any bons onproceedings allowed by law. .�` 14th IN WITNESS WHEREOF,the Companies have caused this instrument to'be signed:and the. corporate seals to be hereto affixed,this day of December 2010 Farmington Casualty Company' p St.Paul Mercury Insurance Company Fidelity and Guaranty Vlnsarance'Company; Travelers Casualty and Surety Company Fidelity and Guaranty Insurance Underwriters,Inc. Travelers Casualty and Surety Company of America St.Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company St.Paul Guardian Insurance Company °�6U.F� pyn•• F1RE4 ��N•�NSG +•�R�q t J„�tV 4N0 NW WfllTY FY'Y� ���r g o 9 rLipRCORA>�l �+,�P+r�:'. 'O t •? 9 ��19.82S�0 7C 1977 ����� ���_ m1 -. F•m }WA'coaeoeaTf::,�s a HARTFORD, � �aiRIF6� �� 0� State of Connecticut By: City of Hartford ss. /Georg90 Thompson, enior ice President On this the 14th day of December 2010 before me personally appeared George W.Thompson,who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company,Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St.Paul Guardian Insurance Company, St. Paul Mercury Insurance Company,Travelers Casualty and Surety Company,Travelers Casualty and Surety Company of America,and United States Fidelity and Guaranty Company,and that he,as such,being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. G.TilT _ In Witness Whereof,I hereunto set my hand and official seal. A Q� V My Commission expires the 30th day of June,2011. A(�BUG * Mane C.Tetreault,Notary Public 58440-4-09 Printed in U.S.A. WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company,Fidelity and Guaranty Insurance Company,Fidelity and Guaranty Insurance Underwriters,Inc.,St.Paul Fire and Marine Insurance Company,St.Paul Guardian Insurance Company,St.Paul Mercury Insurance Company,Travelers Casualty and Surety Company,Travelers Casualty and Surety Company of America,and United States Fidelity and Guaranty Company,which resolutions are now in full force and effect,reading as follows: RESOLVED,that the Chairman,the President,any Vice Chairman,any Executive Vice President,any Senior Vice President,any Vice President,any Second Vice President,the Treasurer,any Assistant Treasurer,the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds,recognizances,contracts of indemnity,and other writings obligatory in the nature of a bond,recognizance,or conditional undertaking,and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her;and it is FURTHER RESOLVED,that the Chairman,the President,any Vice Chairman,any Executive Vice President,any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company,provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary;and it is FURTHER RESOLVED,that any bond,recognizance,contract of indemnity,or writing obligatory in the nature of a bond,recognizance,or conditional undertaking shall be valid and binding upon the Company when(a)signed by the President,any Vice Chairman,any Executive Vice President,any Senior Vice President or any Vice President,any Second Vice President,the Treasurer,any Assistant Treasurer,the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary;or(b)duly executed(under seal,if required)by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER.RESOLVED,that the signature of each of the following officers:President,any Executive Vice President,any Senior Vice President,any Vice President, any Assistant Vice President,any Secretary,any Assistant Secretary,and the seal of the Company may be.affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident.Vice Presidents,Resident Assistant Secretaries or Attorneys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof,and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. 1,Kori M.Johanson,the undersigned,Assistant Secretary,of Farmington Casualty Company,Fidelity and Guaranty Insurance Company,Fidelity and Guaranty Insurance Underwriters,Inc.,St.Paul Fire and Marine Insurance Company,St.Paul Guardian Insurance Company,St.Paul Mercury Insurance Company,Travelers Casualty and Surety Company,Travelers Casualty and Surety Company of America,and Unitte®�5tates Fid�eiwy'iand Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said� �les ich<�inMull force nd effect and has not been revoked. �.V IN TESTIMONY WHEREOF,I have hereunto set my hand andfyfixedl of saidC6 mpanies this day of 20 Kon M.Johans Assistant Secretary G/.SU,��, yFl0.E4� \�µ.�NSG pV6' P�tY ANO Y V�l Sr ei � 'pa ANl To verify the authenticity of this Power of Attorney,call 1-800-421-3880 or contact us at www.travelersbond.com.Please refer to the Attorney-In-Fact number,the above-named individuals and the details of the bond to which the power is attached. WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served upon the following individual(s) in the manner indicated: Joseph A. La Flamme, Esquire PAUL R. OBER &ASSOCIATES 234 North Sixth Street Reading, PA 19601 Attorneys for Claimant James "It Utz Dated: July 2013 RAHNS CONSTRUCTION MATERIALS 'fl1 CO., A DIVISION OF H.Y.K. 0 CONSTRUCTION CO., INC., Claimant IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT V. aO)3 eay/ 7 2014 @Q"4 CIVIL TERM US REAL ESTATE LIMITED MECHANICS' LIEN PARTNERSHIP, Respondent IN RE: MOTION TO DISCHARGE MECHANICS' LIEN AGAINST PROPERTY ORDER OF COURT AND NOW, this 16th day of July 2013, upon consideration of Claimant's Motion to Discharge Mechanics' Lien Against Property, a RULE is issued .upon respondent to show cause why the relief requested should not be granted. CLAIMANT shall serve this Rule upon respondent in accordance with the Pennsylvania Rules of Civil Procedure. RULE RETURNABLE twenty (20) days from the date of service by PLAINTIFF. Thom 6s A. Placey C.P.J. Distribution: ✓Joseph A. LaFlamme, Esq. James W. Kutz, Esq. J 3 `= � p r-- /� b Rahns Construction Materials Co., a IN THE COURT OF COMMON PLEAS OF division of H.Y.K. Construction Co., Inc., CUMBERLAND COUNTY, PENNSYLVANIA Claimant `- 4� v. CIVIL ACTION – LAW rn US Real Estate Limited Partnership, NO. 13-2417 MLDci �' Respondent 2:CD. kni- ORDER = - AND NOW this — l� day of , 2013, and in consideration of the Motion to Discharge Mechanics' Lien Against Property filed by US Real Estate Limited Partnership, and in consideration of the Stipulation provided to this Court by the parties related to that Motion, said Motion is hereby GRANTED. US Real Estate Limited Partnership having caused a surety bond obtained by R.S. Mowery & Sons, Inc., a copy of which is attached to the Motion as Exhibit A, to be filed with the Prothonotary of the Court of Common Pleas of Cumberland County, the Prothonotary of the Court of Common Pleas of Cumberland County, pursuant to 49 P.S. §1510, is directed to discharge the mechanics' lien as against the property filed by Rahns Construction Materials on or about May 2, 2013 pursuant to 49 P.S. §1510. This Order does not preclude Claimant from filing a Complaint to Enforce the Lien consistent with the Pennsylvania Mechanics' Lien Law. BY THE COUR Th mas&Placey J. Common Pleas Judge Wtribution List: Joseph A. La Flamme, Esquire, PAUL R. OBER &ASSOCIATES, 234 North Sixth Street Reading, PA 19601 –Attorneys for Claimant ames W. Kutz, Esquire, McNees Wallace & Nurick LLC, P.O. Box 1166, Harrisburg, PA 17108-1166 –Attorneys for Respondent )'31 i?.S Cwt i c ees Wallace & Nurick LI:c JAMES W.KUTZ ,PA 17108-1166 DIRECT DIAL:(717) 60-17 41 100 Pine Street o PO Box 1166 C Harrisburg, DIRECT FAX:(717)260-1714 Tel: 717.232.8000 a Fax: 717.237.5300 E-MAIL ADDRESS:JKLITZ(7MWN.00M f A August 12, 2013 The Honorable Thomas Placey Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013-3387 RE: Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc. v. US Real Estate Limited Partnership (No. 2013-2417) and Rahns Trucking, Inc. v. US Real Estate Limited Partnership (No. 2013-2418) Dear Judge Placey: The purpose of this letter is to advise you that the parties to the above-referenced mechanics' lien actions have reached a stipulation with respect to the recent Rules Returnable which were issued by this Court following Motions to Discharge Mechanics' Liens Against Property filed by US Real Estate Limited Partnership. While the parties respectfully request that you sign the attached Orders, based on communications with your office, it is our understanding that we are to provide you with some background with respect to this stipulation, and accordingly we have done so below. We are enclosing two Proposed Orders because there are Mechanics' Lien Claims filed under two separate docket numbers by two separate entities, Rahns Construction Materials Co., a division of.'H.Y.K. Construction Co., Inc., and Rahns Trucking, which allege that each entity served as a second tier subcontractor for Neuber Concrete on a project owned by US Real Estate Limited Partnership, for which R. S. Mowery served as the General Contractor. On July 11, 2013, the Owner, through the General Contractor, R. S. Mowery, provided two separate bonds (one for each action) in double the face amount of the lien claim as required by the Pennsylvania Mechanics' Lien Law. At the same time, US Real Estate Limited .Partnership also filed a Motion to Discharge both liens as against the property, although it is understood that once the liens themselves are discharged, that the bonds would merely replace the liens as security, and that a Complaint to enforce the lien could ultimately be filed by the Claimants in both cases. Thereafter, this Honorable Court issued a Rule in both actions to show why the relief requested by US Real Estate Limited Partnership should not be granted. Counsel for US Real Estate Limited Partnership subsequently served'those Rules on counsel for Claimants www.mwn.com HARRISBURG, PA • LANCASTER, PA • STATE COLLEGE, PA COLUMBUS,OH WASHINGTON, DC { W- i The Honorable Thomas Placey ' August 12, 2013 Page 2 in both actions. As a result of discussions between counsel, the parties have agreed to a stipulation that•an Order should be issued which discharges the mechanics' lien against the property, and recognizes that the underlying mechanics' Iien.Complaint may,still proceed. The parties believe that the attached proposed Order in both cases satisfies that requirement, and jointly request that these Orders be signed by the Court. Thank you for your consideration of this request. Please let us know if you require any further information. i Very truly yours, McN ES WA•LA E NURICK LLC PAUL R. OBER &ASSOCIATES By By J mes W. Ku I/Jep/hf, a Flamme JWK/mrs Enclosures l 1, ED r f- ,i. I IL t 1(0 I HONQ TARY �, 3 2013 OCT --3 PH 2: 17 CUMBERLAND COUNTY PAUL R. OBER& ASSOCIATES PENNSYLVANIA BY: Joseph A. La Flamme, Esquire Attorney I.D. #73603 234 North Sixth Street Reading PA 19601 (610) 378-0121 Attorney for Claimant Rahns Construction Materials Co., a division : IN THE COURT OF COMMON PLEAS of H.Y.K. Construction Co., Inc., : CUMBERLAND COUNTY, : PENNSYLVANIA Claimant/Plaintiff : : CIVIL ACTION -LAW v. L NO. ' /3 - Lily- J�1 US Real Estate Limited Partnership, Respondent/Defendant : NOTICE TO DEFEND-CIVIL 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,GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER,THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERENCE SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 717-249-3166/800-990-9108 PAUL R. OBER& ASSOCIATES BY: Joseph A. La Flamme, Esquire Attorney I.D. #73603 234 North Sixth Street Reading PA 19601 (610) 378-0121 Attorney for Claimant Rahns Construction Materials Co., a division : IN THE COURT OF COMMON PLEAS of H.Y.K. Construction Co., Inc., : CUMBERLAND COUNTY, : PENNSYLVANIA Claimant/Plaintiff : : CIVIL ACTION -LAW v. : NO. 13-2417 MLD US Real Estate Limited Partnership, Respondent/Defendant : COMPLAINT IN ACTION UPON MECHANICS' LIEN AND NOW comes Plaintiff, Rahns Construction Materials Co., a division of H.Y.K. Construction Co.,Inc.,by and through its attorneys,Paul R.Ober&Associates,files this Complaint in Action Upon Mechanics' Lien averring, as follows: 1. Plaintiff,Rahns Construction Materials Co., a division of H.Y.K. Construction Co.,Inc.,is a Pennsylvania corporation with its principal place of business at 430 Rahns Road,Rahns, Pennsylvania 19426. 2. Defendant,US Real Estate Limited Partnership, is a limited partnership with an address of 9830 Colonnade Boulevard, Suite 600, San Antonio, Texas 78230. 3. The name and address of the contractor with whom Plaintiff contracted is J.F. Neuber, Jr. General Contractor, Inc., a Pennsylvania corporation with a place of business at 42 Ridge Road,Phoenixville,Pennsylvania 19464 and a mailing address of P.O.Box 745,Kimberton, Pennsylvania 19442. 4. On May 2,2013,Plaintiff filed a Mechanics' Lien Claim in the Court of Common Pleas of Cumberland County,Pennsylvania at Docket No. 13-2417 MLD. A true and correct copy of the Mechanics' Lien Claim is attached hereto as Exhibit "A." WHEREFORE, Plaintiff, Rahns Construction Materials Co., a division of H.Y.K. Construction Co.,Inc.,demands judgment in the amount of Three Hundred Twenty Thousand Eight Hundred Forty Nine and 91/100 Dollars ($320,849.91)plus interest and costs of suit. Respectfully submitted, PAUL R. OBER& ASSOCIATES By: I ///."5 -.' " 416 kph A. La Flamme, Esquire •ttorney for Plaintiff F;\Rahns\Mountain Creek Distribution Center\Complaint in Action Upon Mechanics'Lien-Rahns Concrete.wpd 2 ■ EXHIBIT A OF THE pR©KF)i; Q,NQ r4 R, 201311A 2An9: 52 PAUL R. OBER& ASSOCIATES CUMBERLAND D C BY: Joseph A. La Flamme, Esquire PENNS YL V A jU NT Y Attorney I.D. #73603 234 North Sixth Street Reading PA 19601 (610) 378-0121 Attorney for Claimant Rahns Construction Materials Co., a division : IN THE COURT OF COMMON PLEAS of H.Y.K. Construction Co., Inc., : CUMBERLAND COUNTY, : PENNSYLVANIA Claimant : : CIVIL ACTION - LAW` l v. IS - 1 `� 1-1 11/}1f -b : NO. _ US Real Estate Limited Partnership, Respondent : MECHANICS' LIEN CLAIM (720 Allen Road, Carlisle, Cumberland County, Pennsylvania) AND NOW, comes Claimant, Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc. and hereby files the following Mechanics' Lien Claim for the labor and materials furnished by Claimant in connection with and incidental to the construction of improvements for the Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Cumberland County,Pennsylvania including,but not limited to,providing and operating a portable concrete plant and suppling concrete materials to and for the project, herein described, upon the following statements: 1. Claimant, Rahns Construction Material Co., a Division of H.Y.K. Construction Co., Inc., with an address of 430 Rahns Road,Rahns,Pennsylvania 19426 files this Mechanics' Lien Claim as Subcontractor. 2. The Owner and/or Reputed Owner of the property subject to the lien is US Real Estate Limited Partnership ("Owner") with an address of 9830 Colonnade Boulevard, Suite 600, San Antonio, Texas 78230. 3. The date upon which Claimant completed the work for which claim is made was on or about December 10, 2012. 4. The Contract under which the work was done and materials furnished was made with J.F. Neuber, Jr. General Contractor, Inc. (the "Contractor"),a Pennsylvania corporation with a place of business at 42 Ridge Road,Phoenixville,Pennsylvania 19464 and a mailing address of P.O. Box 745, Kimberton,Pennsylvania 19442. 5. Neuber's Contract was with R.S. Mowery& Sons, Inc.,the General Contractor who had a contract with the Owner for construction of the Project. 6. Claimant files this claim under a contract with the Contractor wherein Claimant agreed to furnish labor and materials in connection with and required for the Mountain Creek Distribution Center located at 720 Allen Road,Carlisle,Cumberland County,Pennsylvania. 7. The general nature and character of labor and materials furnished by Claimant was in connection with and incidental to the construction of improvements for the Mountain Creek Distribution Center located at 720 Allen Road,Carlisle,Cumberland County,Pennsylvania including,but not limited to,providing and operating a portable concrete plant and suppling concrete materials to and for the project. 8. To the extent that Claimant has not completed improvements, Claimant has been excused, prevented and/or hindered by the Owner and/or Contractor from completing the 2 improvements due to, inter alia, lack of payment. 9. Formal notice of intention to file a Mechanics'Lien Claim was served on Owner by Certified Mail on or about March 25, 2013 as evidenced by copies of said formal notice attached hereto as Exhibit"A." 10. This claim is made for the work, labor and materials described below: a. Concrete: 4,000 psi NA SOG Mix—7,163 cubic yards at$43.99/cubic yard b. Concrete: 4,000 psi NA INF-1 Mix—48 cubic yards at $46.11/cubic yard c. Concrete: 4,500 psi AE Mix— 88.5 cubic yards at $46.91/cubic yard 11. The amount claimed due Claimant is Three Hundred Twenty Thousand Eight Hundred Forty Nine and 91/100 Dollars($320,849.91)plus interest. 12. The property subject to the lien is all that certain piece,parcel or lot of land and the building or buildings thereon known as Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Cumberland County, Pennsylvania 17105. 13. Any waiver of liens that may have been filed is against public policy,ineffective,unlawful, and/or void under the Pennsylvania Mechanics' Lien Law of 1963, as amended. Respectfully submitted, PAUL R. OBER & ASSOCIATES By: 11 - r Y: •s;ph A. La Flamme,Esquire Attorney for Claimant F:1Rahns\Mountain Creek Distribution Center\Mechanics'Lien Claim Rahns Concrete.wpd 3 EXHIBIT A DELL Q. OBEQ t 880CIAT:8 A PENNSYLVANIA PARTNISHIP PAUL R.OBER ATTORNEYS AT LAW JOHN J.MURPHY,JR.(1984) TERRY L.PARISH 234 N.6TH STREET JAMES L.DAVIS READING,PENNSYLVANIA 19601 CHARLES M.WATKINS BOYERTOWN OFFICE: JOSEPH A.LA FLAMME,P.E.• Wage ,PA 19512 THOMAS C.ANEWALT (610)advocacy 367-6991 MICHELLE A.RHIZOR` (610)378-0121 FAX(610)378-9712 •ALSO MEMBER CALIFORNIA BAR jalaflamme @oberandassociates.com ALSO MEMBER NEW JERSEY at FLORIDA BARS LL.M.IN TAXATION ~ALSO MEMBER NEW JERSEY BAR LICENSED PROFESSIONAL ENGINEER March 22, 2013 IN PENNSYLVANIA.FLORIDA&NEW YORK VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED US Real Estate Limited Partnership 9830 Colonnade Boulevard, Suite 600 San Antonio, TX 78230 RE: Mountain Creek Distribution Center Project 720 Allen Road, Carlisle, Pennsylvania Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc. NOTICE OF INTENTION TO FILE MECHANICS' LIEN To Whom It May Concern: This Firm represents Rahns Construction Materials Co., a division of H.Y.K. Construction Co.,Inc.,with regard to work performed on the Mountain Creek Distribution Center Project located at 720 Allen Road, Carlisle, Pennsylvania (the "Project"). Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc., is currently owed in excess of Three Hundred Twenty Thousand Eight Hundred Forty Nine and 91/100 Dollars ($320,849.91) for work, labor, materials and equipment provided and/or performed in connection with the Project. Be advised that Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc. intends to file a mechanics' lien against the real property upon which it performed the work, including, but not limited to, real property owned in whole or in part by US Real Estate Limited Partnership for the work,labor,materials and equipment provided and/or performed in connection with the Project. Enclosed is the Notice of Intention to File Mechanics' Lien addressed to US Real Estate Limited Partnership. Also, please forward to us any and all Payment Bonds posted with regard to the Project. SUBURBAN OFFICES by appointment HAMBURG, PA 19526 (610) 562-5879 1244 WEST HAMILTON STREET,AT T=NTO N,PA 18102 (610)437-4455 P.O. BOX 196, STTPPACK, PA 19414 454)576-02E3 ?�UL OBEY AMOCA.TEc US Real Estate Limited Partnership March 22, 2013 Page 2 Should you have any questions, do not hesitate to contact me. Very truly yours, PAUL R. OBER& ASSOCIATES o -ph A. La Flamme,Esquire JAL/wak Enclosure cc: J.F.Neuber, Jr. General Contracting, Inc. R.S.Mowery& Sons* :. ....._-.. John B. Haines, IV Jack Kibblehouse Dan Condiles S Poste Service T x F; "ACERTIPIED,,MAILRECEIPTt,,,;.--, (Domestic Marl Only,No lnsarance;Coverage Provided) m - ry US Real Estate Limited Partnership ru tr Postage $ .46 b— m Certified Fee 3.10 Postmark Return Receipt Fee );Here r� (Endorsement Required) 2.55 Restricted Delivery Fee (Endorsement Required) O Total Postage&Fees $ 6. 11 m a e lease rint Clearly)(to be completed by mailer) US Real Estate Limited Partnership U" Street,Apt.No.;or PO Box No. O 9830 Colonnade Boulevard, Suite 600 [` City,State,ZIP+4 San Antonio, TX 78230 13`�FoC�iL36I10`=.�U`�1'599��-�� _ s°=_n�,�5eeif3�vErsen�ch,�uEhgriS� SENDER COMPLETE THIS SECTION COMPLETE THISSECTION ON DELIVERY „ el Complete items 1,2,and 3.Also complete A. Signature Item 4 if Restricted Delivery is desired. �[f ❑Agent ® Print your name and address on the reverse �1 0 Addressee so that we can return the card to you. B. Received by(Printed ame) C. Date of Delivery Attach this card to the back of the mailpiece, J I) - or on the front if space permits. D. Is delivery address different from item 1? ❑Yes 1; Article Addressed to: If YES,enter delivery address below: ❑No - US Real Estate Limited Partnership 9830 Colonnade Boulevard, Suite 600 San Antonio, TX 78230 3. Service Type 3 Certified Mall 0 Express Mall ❑ Registered El Return Receipt for Merchandise ❑ Insured Mail ❑C.C.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 7099 3400 0010 3992 2103 (Transfer from service label PS Form 3811,February 2004 Domestic Retum Receipt 102595-02-M-1540 E NOTICE OF INTENTION TO FILE MECHANICS' LIEN TO: US REAL ESTATE LIMITED PARTNERSHIP NAME OF CLAIMANT: Rahns Construction Materials Co.,a division of H.Y.K. Construction Co., Inc. NAME OF PERSON WHOM CLAIMANT CONTRACTED: J.F. Neuber, Jr. General Contractor,Inc. AMOUNT CLAIMED DUE: Three Hundred Twenty Thousand Eight Hundred Forty Nine and 91/100 Dollars ($320,849.91) GENERAL NATURE AND CHARACTER The general nature and character of labor and materials furnished by Claimant was in connection with and incidental to the construction of improvements for the Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Pennsylvania and included, but was not - - - -- limited to,providing and operating a portable concrete plant and suppling concrete materials to and for the project. DATE OF COMPLETION OF WORK or DAY LAST WORKED ON PROJECT: December 10, 2012 DESCRIPTION OF PROPERTY SUBJECT TO LIEN Mountain Creek Distribution Center located at 720 Allen Road, Carlisle,Pennsylvania 17105 THIS NOTICE IS TO INFORM YOU THAT THE ABOVE NAMED CLAIMANT INTENDS TO FILE A MECHANIC'S LIEN CLAIM FOR THE WORK AND MATERIALS PROVIDED. F ARahns'Mountain Creek Distribution CenterWotice of Intention to file Mechanics lien Concrete.wpd VERIFICATION I,John R.Kibblehouse,Sr., state under the penalties of 18 Pa.C.S. Section 4904 (relating Secretary/ to unsworn falsification to authorities) that I am Treasurer of Rahns Trucking, Inc. , a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania;that I make this verification on its behalf being authorized to do so; and that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. Dated: 5))) ) ) ylr John R. Kibblehouse, Sr. VERIFICATION I,John R.Kibblehouse,Sr., state under the penalties of 18 Pa.C.S. Section 4904(relating Secretary/ to unsworn falsification to authorities) that I am Treasurer of H.Y.K. Construction Co. , Inc. ,a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania;that I make this verification on its behalf being authorized to do so; and that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. Dated: '1).20)3 'John R. Kibblehouse, Sr. SHERIFF'S OFFICE OF CUMBERLAND COUNTY R Anderson -o Sheriff „ti, 0 rr y, r -urn Jody S Smith { --1— Chief Deputy ; at Richard W Stewart Solicitor fi ,t-_ ,;.;".. x r Rahns Construction Material Co., a Division of H.Y.K. Construction Co. Case Number vs. US Real Estate Limited Partnership, 2013-2417 SHERIFF'S RETURN OF SERVICE 10/25/2013 07:27 PM- Deputy Jason Kinsler, being duly sworn according to law, served the requested Mechanics Lien Claim upon the within named Defendant, to wit: US Real Estate Limited Partnership„ pursuant to Order of Court by"Posting"the premises located at 720 Allen Road, South Middleton, Carlisle, PA 17015 with a true and correct copy according to law. JASON KINSJ'R, DEPUTY SHERIFF COST: $40.78 SO ANSWER,,S, dr October 28, 2013 RO Y ANDERSON, SHERIFF NOTARIAL SEAL MAMA A.BREWBAKER,NO TARY PUBLIC Carlisle Borg,Cumberland Ctmilty My.commission Expires April 4,2017 NOTARY Affirmed and subscribed to before me this day of iba,(01,142, c O ' } � ^oui, u ie Sh3,f " aeosOR '..,. McNEES WALLACE & NURICK LLC f�L X1 j"WOOL n ; By: James W. Kutz, Esquire 2914 AI 2 Attorney I.D. No. 47245 ` " /1: 42 CJ By: Geoffrey B. Fehling, Esquire ry�S ,RLAt Cpl Attorney I.D. No. 311711 hNSYLV, A,/ T 100 Pine Street Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 facsimile jkutz @mwn.com gfehling @mwn.com Attorneys for Respondent RAHNS CONSTRUCTION MATERIALS : IN THE COURT OF COMMON PLEAS OF CO., A DIVISION OF H.Y.K. : CUMBERLAND COUNTY, PENNSYLVANIA CONSTRUCTION CO., INC., Claimant : v. : CIVIL ACTION — LAW • US REAL ESTATE LIMITED PARTNERSHIP, • Respondent : NO. 13-2417 MLD • PRELIMINARY OBJECTIONS TO CLAIMANT RAHNS CONSTRUCTION MATERIALS CO.'S COMPLAINT IN CIVIL ACTION TO OBTAIN JUDGMENT ON A MECHANICS' LIEN AND NOW, comes Respondent US Real Estate Limited Partnership ("US Real Estate"), through its counsel McNees Wallace & Nurick LLC, and hereby submits the following Preliminary Objections to the Complaint In Action Upon Mechanics' Lien filed by Claimant Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc. ("Rahns Construction" or "Claimant"). In support thereof, US Real Estate states the following: Background 1. At the time the mechanics' lien was initially filed by Rahns Construction, US Real Estate was the owner, as that term is defined in the Mechanics' Lien Law of 1963, 49 P.S. § 1101 et seq. ("Lien Law"), as amended, of the real property located at 720 Allen Road, Carlisle, Cumberland County, Pennsylvania 17015 (the "Property"). 2. US Real Estate, as owner, engaged R.S. Mowery & Sons, Inc. ("Mowery"), as contractor, to construct a Warehouse/Distribution Center (the "Project") on its Property. 3. Subsequently, Mowery engaged J.F. Neuber, Jr. General Contractor, Inc. ("Neuber"), as a subcontractor, to perform certain work, including, but not limited to, construction of concrete flooring for the Project. 4. Rahns Construction alleges that Neuber, in turn, contracted with Rahns Construction to provide labor and materials for the Project, including, but not limited to, providing and operating a portable concrete plant and supplying concrete material to and for the Project. See Mechanics' Lien Claim, ¶¶ 6-7. 5. US Real Estate has paid Mowery in full for all amounts due Mowery, in accordance with the terms of the agreement between US Real Estate and Mowery. 6. Similarly, Mowery has paid Neuber in full for all amounts due Neuber, in accordance with the terms of the agreement between Mowery and Neuber. 7. On or about January 17, 2013, US Real Estate and Mowery received preliminary notice via certified mail (the "Notice") from Claimant of a large mechanics' lien claim. 8. On March 22, 2013, Claimant inexplicably divided its pending lien claim into two parts—one claim by Rahns Construction and one claim by Rahns Trucking, and subsequently provided separate notices of these claims to Mowery and US Real Estate. A copy of the notice is attached to Claimant's Complaint as Exhibit A. 9. On or about May 2, 2013, Claimant filed a Mechanics' Lien Claim ("Lien Claim") against US Real Estate's interest in the Project and Property for the sum of 2 $320,849.91 representing the payments allegedly unpaid and due to Claimant from Neuber for concrete equipment and materials furnished by Claimant to Neuber on the Project. 10. While Claimant has not specifically alleged that it has not been paid its full contract amount, from the Lien Claim it is apparent that Claimant avers that Neuber failed to pay Claimant in accordance with their agreement for the work, labor, and materials related to supply of concrete for the Project. 11. Claimant made no attempt to serve the Lien Claim against US Real Estate or its registered agent. Instead, Claimant apparently attempted service by posting the Lien Claim on a job-site trailer on the Property on or about May 16, 2013. On June 4, 2013, Claimant filed an Affidavit of Service purporting to effectuate service upon US Real Estate by publication at the Property. See Rahns Construction Affidavit of Service, 1111-2, a copy of which is attached to Claimant's Complaint. 12. On July 11, 2013, US Real Estate, through counsel, filed a Motion to Discharge Mechanics' Lien Against Property by posting a surety bond. 13. On August 16, 2013, this Court granted US Real Estate's Motion to Discharge, ordering that the Lien Claim filed by Claimant against the Property be discharged. The Court's August 16, 2013 Order did not preclude Claimant from filing a Complaint to Enforce the Lien consistent with the Pennsylvania Mechanics' Lien Law. 14. On October 3, 2013, Claimant apparently filed a Complaint In Action Upon Mechanics' Lien ("Complaint"). 15. Claimant again made no effort to serve the Complaint upon US Real Estate, its attorney, or its registered agent, despite US Real Estate having filed a motion and entered into a stipulation with Claimant's counsel during the course of the litigation. 16. On or about November 5, 2013, a Sheriff's Return of Service was filed indicating that the sheriff"served the requested Mechanics' Lien Claim upon [US Real 3 Estate] pursuant to Order of Court by 'Posting' the premises located at 720 Allen Road, South Middleton, Carlisle, PA 17015." 17. This Court has not entered any orders permitting alternative methods of service or otherwise authorizing Claimant's service of documents upon US Real Estate through publication. 18. On January 3, 2014, counsel for Rahns Construction finally served counsel for US Real Estate with the Complaint via e-mail. The Complaint did not include a certificate of service. 19. US Real Estate now files Preliminary Objections to Claimant's Complaint. Inasmuch as these Preliminary Objections are filed within twenty (20) days of service on counsel, they are timely filed. First Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(4) - Legal Insufficiency (Demurrer) 20. Paragraphs 1 through 19 are incorporated by reference as if set forth at length herein. 21. Pursuant to Pa.R.C.P. No. 1028(a)(4), a party may present the issue of legal insufficiency by the filing of a preliminary objection to a pleading. 22. Pursuant to the Mechanics' Lien Law, "[a]ny party may preliminarily object to a claim upon a showing of . . . lack of conformity with this act." Penstan Supply Div. of Hajoca Corp. v. Traditions of Am. L.P., 2009-3216, 2010 WL 687512 (Pa. Com. PI. Jan. 7, 2010) (quoting 49 P.S. § 1505). 23. The Lien Law—Title 49 of Pennsylvania's statutes—is to be construed pursuant to its common usage to effect its objects and to promote justice, as is necessary to effectuate the Lien Law's remedial purpose of protecting pre-payment of labor and materials. Bricklayers of W. Pennsylvania Combined Funds, Inc. v. Scott's Dev. Co., 41 4 A.3d 16, 28 (Pa. Super. Ct. 2012); see also Dyer v. Wallace, 107 A. 754, 755 (Pa. 1919) ("A mechanic's lien is a pure creature of the statute, and compliance with statutory requirements is necessary to its validity."). Moreover, claimants must strictly comply with all service and notice requirements. Bricklayers, 41 A.3d at 29; see also Wyatt Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564 (Pa. Super. Ct. 2009) (stating that "any question of interpretation [of the Lien Law] shall be resolved in favor of strict, narrow construction"). 24. Thus, "[t]o effectuate a valid Mechanics' Lien claim, the contractor or subcontractor must strictly comply with the requirements of Title 49." Wyatt, 976 A.2d at 564. 25. Service of mechanics' liens is governed by 49 P.S. § 1502(c), which states: (c) Manner of service. Service of the notice of filing of claim shall be made by an adult in the same manner as a writ of summons in assumpsit, or if service cannot be so made then by posting upon a conspicuous public part of the improvement. 49 P.S. § 1502(c) (emphasis added). 26. "Consequently, a writ of summons in assumpsit must be served in the same manner as service of process in a civil action." Clemleddy Const., Inc. v. Yorston, 810 A.2d 693, 697 (Pa. Super. Ct. 2002). 27. Where a defendant is a Pennsylvania resident, service in a civil action must be made pursuant to Rule 400 of the Pennsylvania Rules of Civil Procedure, but where a defendant is a non-resident, such service must be made pursuant to Rule 404. 28. Service upon non-resident defendants outside the Commonwealth is governed by Pa.R.C.P. No. 404, which states: Original process shall be served outside the Commonwealth within ninety days of the issuance of the writ or the filing of the complaint or the reissuance or the reinstatement thereof: (1) by a competent adult in the manner provided by Rule 402(a); 5 (2) by mail in the manner provided by Rule 403; (3) in the manner provided by the law of the jurisdiction in which the service is made for service in an action in any of its courts of general jurisdiction; (4) in the manner provided by treaty; or (5) as directed by the foreign authority in response to a letter rogatory or request. 29. "The Mechanics' Lien Law expressly permits posting [of the notice on the improvement] as an alternative service methodology, once the claimant establishes that personal service has not been successfully effectuated." Clemleddy, 810 A.2d at 697 (emphasis added). 30. Thus, the Lien Law requires that service be made using the same methods as original service under Rule 404 as would be made in a civil action in Pennsylvania. 31. If such service cannot be made, then the Lien Law permits service by posting of the claim on the improvement itself. 32. Under Rule 404, service on an out-of-state defendant can be made via certified mail. 33. Claimant demonstrated knowledge of the mailing address of US Real Estate by servings its Notice at US Real Estate's out-of-state mailing address in late March 2013. 34. Therefore, given that US Real Estate is a non-resident defendant, service clearly could have been made through traditional means under Rule 404, rather than posting on the improvement. 35. Moreover, US Real Estate has a registered agent within the Commonwealth that could have personally accepted service of a filing on its behalf. 6 36. By not serving the Lien Claim via certified mail or upon US Real Estate's registered agent in Pennsylvania personally, Claimant failed to satisfy the service requirements under Rule 404. 37. Claimant has not averred, nor can it demonstrate, that service by certified mail or other means could not be made such as to permit service by posting. 38. Similarly, the Lien Claim was not posted on the improvement itself, but rather on a project office trailer located on the Property site, and accordingly, to the extent "posting" was a permissible means of service here, the "posting" that took place did not meet the requirements of the Lien Law. 39. Because Claimant failed to comply with the service requirements under the Lien Law, its Complaint is legally deficient as a matter of law and should be dismissed for failing to state a claim upon which relief can be granted. Second Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(4) - Legal Insufficiency (Demurrer) 40. Paragraphs 1 through 39 are incorporated by reference as if set forth at length herein. 41. In Claimant's Lien Claim, which is attached to its Complaint as Exhibit A, Claimant claims that it is entitled to a lien against the Project and the Property and US Real Estate's interest in same in the amount of$320,849.91. 42. The Lien Law provides: Every improvement and the estate or title of the owner in the property shall be subject to a lien, to be perfected as herein provided, for the payment of all debts due by the owner to the contractor or by the contractor to any of his subcontractors for labor or materials furnished in the erection or construction, or the alteration or repair of the improvement, provided that the amount of the claim, other than amounts determined by apportionment under section 306(b) of this act shall exceed five hundred dollars ($500). 49 P.S. § 1301 (emphasis added). 7 43. Accordingly, lien rights only arise on a project where there is a debt due by the owner to the contractor or by the contractor to any of the contractor's subcontractors. 44. As set forth above, there are no sums due and owing by the owner (US Real Estate) to the contractor (Mowery), nor are there any sums due and owing by the contractor (Mowery) to its subcontractor (Neuber). 45. Significantly, Claimant does not allege, in its Lien Claim or in its Complaint, that any debts are due by the owner to the contractor or by the contractor to any of the contractor's subcontractors. 46. Pursuant to Section 1301 of the Lien Law, Claimant has no right to file a lien against the Project and Property, as there are no debts due by US Real Estate to Mowery or by Mowery to any of its subcontractors. 47. Issues of service and notice under the Lien Law must be resolved in favor of a strict, narrow construction. Bricklayers, 41 A.3d at 29; Wyatt, 976 A.2d at 564. 48. Additionally, "[t]o effectuate a valid Mechanics' Lien claim, the contractor or subcontractor must strictly comply with the requirements of Title 49." Wyatt, 976 A.2d at 564. 49. Claimant's Lien Claim is legally insufficient, as the Lien Law does not allow a lien to be filed against a property or improvements thereto unless there remains some debt due by the owner to the contractor or by the contractor to any of the contractor's subcontractors. 50. As Claimant's Lien Claim is legally insufficient, its Complaint should be dismissed. 51. Moreover, the Contractor and Subcontractor Payment Act (the "Payment Act"), 73 P.S. § 501, et seq., provides that once payment to the subcontractor is made by 8 the contractor, future claims against the contractor by parties owed payment by the subcontractor shall be barred. 52. The General Assembly did not intend a prime contractor to be the de facto insurer of construction projects or to have to pay for the same work twice (i.e., direct payment by the contractor to its subcontractors and then again to any second-tier contractor claimants). 53. The Payment Act is consistent with the interpretation of the Lien Law that once a contractor pays its subcontractor, it cannot be liable for additional claims. WHEREFORE, Respondent/Owner US Real Estate Limited Partnership respectfully requests that this Honorable Court sustain the Preliminary Objections to Claimant Rahns Construction Materials Co.'s Complaint In Action Upon Mechanics' Lien, based on legal insufficiency/demurrer pursuant to Pa.R.C.P. 1028(a)(4), dismiss Rahns Construction's Complaint. Respectfully Submitted, MCNEES WALLACE & NURICK LLC I l i By James W. z, Esquire I.D. No. 472.5 Geoffrey B. Fehling, Esquire I.D. No. 311711 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Respondent Dated: January 22, 2014 9 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served upon the following individual(s) in the manner indicated: Joseph A. La Flamme, Esquire PAUL R. OBER & ASSOCIATES 234 North Sixth Street Reading, PA 19601 Attorneys for Claimant 1_ James r . Kutz Dated: January 22, 2014 10 0 3 McNEES WALLACE & NURICK LLC By: James W. Kutz, Esquire Attorney I.D. No. 47245 „ By: Geoffrey B. Fehling, Esquire C Ut-LP ERLANj cou Attorney I.D. No. 311711 PENNS y� 4,4' 100 Pine Street Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 facsimile jkutz @mwn.com gfehling @mwn.com Attorneys for Respondent RAHNS TRUCKING, INC. : IN THE COURT OF COMMON PLEAS OF Claimant : CUMBERLAND COUNTY, PENNSYLVANIA v. • : CIVIL ACTION — LAW US REAL ESTATE LIMITED PARTNERSHIP, • Respondent : NO. 13-2418 MLD PRELIMINARY OBJECTIONS TO CLAIMANT RAHNS TRUCKING INC.'S COMPLAINT IN CIVIL ACTION TO OBTAIN JUDGMENT ON A MECHANICS' LIEN AND NOW, comes Respondent US Real Estate Limited Partnership ("US Real Estate"), through its counsel McNees Wallace & Nurick LLC, and hereby submits the following Preliminary Objections to the Complaint In Action Upon Mechanics' Lien filed by Claimant Rahns Trucking, Inc. ("Rahns Trucking" or "Claimant"). In support thereof, US Real Estate states the following: Background 1. At the time the mechanics' lien was initially filed by Rahns Trucking, US Real Estate was the owner, as that term is defined in the Mechanics' Lien Law of 1963, 49 P.S. § 1101 et seq. ("Lien Law"), as amended, of the real property located at 720 Allen Road, Carlisle, Cumberland County, Pennsylvania 17015 (the "Property"). 2. US Real Estate, as owner, engaged R.S. Mowery & Sons, Inc. ("Mowery"), as contractor, to construct a Warehouse/Distribution Center (the "Project") on its Property. 3. Subsequently, Mowery engaged J.F. Neuber, Jr. General Contractor, Inc. ("Neuber"), as a subcontractor, to perform certain work, including, but not limited to, construction of concrete flooring for the Project. 4. Rahns Trucking alleges that Neuber, in turn, contracted with Rahns Trucking to provide labor and materials for the Project, including, but not limited to, providing and operating a portable concrete plant and supplying concrete material to and for the Project. See Mechanics' Lien Claim, ¶¶ 6-7. 5. US Real Estate has paid Mowery in full for all amounts due Mowery, in accordance with the terms of the agreement between US Real Estate and Mowery. 6. Similarly, Mowery has paid Neuber in full for all amounts due Neuber, in accordance with the terms of the agreement between Mowery and Neuber. 7. On or about January 17, 2013, US Real Estate and Mowery received preliminary notice via certified mail (the "Notice") from Claimant of a large mechanics' lien claim. 8. On March 22, 2013, Claimant inexplicably divided its pending lien claim into two parts—one claim by Rahns Construction and one claim by Rahns Trucking, and subsequently provided separate notices of these claims to Mowery and US Real Estate. A copy of the notice is attached to Claimant's Complaint as Exhibit A. 9. On or about May 2, 2013, Claimant filed a Mechanics' Lien Claim ("Lien Claim") against US Real Estate's interest in the Project and Property for the sum of $467,345.58 representing the payments allegedly unpaid and due to Claimant from Neuber for concrete equipment and materials furnished by Claimant to Neuber on the Project. 2 10. While Claimant has not specifically alleged that it has not been paid its full contract amount, from the Lien Claim it is apparent that Claimant avers that Neuber failed to pay Claimant in accordance with their agreement for the work, labor, and materials related to supply of concrete for the Project. 11. Claimant made no attempt to serve the Lien Claim against US Real Estate or its registered agent. Instead, Claimant apparently attempted service by posting the Lien Claim on a job-site trailer on the Property on or about May 16, 2013. On June 4, 2013, Claimant filed an Affidavit of Service purporting to effectuate service upon US Real Estate by publication at the Property. See Rahns Trucking Affidavit of Service, ¶¶ 1-2, a copy of which is attached to Claimant's Complaint. 12. On July 11, 2013, US Real Estate, through counsel, filed a Motion to Discharge Mechanics' Lien Against Property by posting a surety bond. 13. On August 16, 2013, this Court granted US Real Estate's Motion to Discharge, ordering that the Lien Claim filed by Claimant against the Property be discharged. The Court's August 16, 2013 Order did not preclude Claimant from filing a Complaint to Enforce the Lien consistent with the Pennsylvania Mechanics' Lien Law. 14. On October 3, 2013, Claimant apparently filed a Complaint In Action Upon Mechanics' Lien ("Complaint"). 15. Claimant again made no effort to serve the Complaint upon US Real Estate, its attorney, or its registered agent, despite US Real Estate having filed a motion and entered into a stipulation with Claimant's counsel during the course of the litigation. 16. On or about November 5, 2013, a Sheriff's Return of Service was filed indicating that the sheriff"served the requested Mechanics' Lien Claim upon [US Real Estate] pursuant to Order of Court by 'Posting' the premises located at 720 Allen Road, South Middleton, Carlisle, PA 17015." 3 17. This Court has not entered any orders permitting alternative methods of service or otherwise authorizing Claimant's service of documents upon US Real Estate through publication. 18. On January 3, 2014, counsel for Rahns Trucking finally served counsel for US Real Estate with the Complaint via e-mail. The Complaint did not include a certificate of service. 19. US Real Estate now files Preliminary Objections to Claimant's Complaint. Inasmuch as these Preliminary Objections are filed within twenty (20) days of service on counsel, they are timely filed. First Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(4) - Legal Insufficiency (Demurrer) 20. Paragraphs 1 through 19 are incorporated by reference as if set forth at length herein. 21. Pursuant to Pa.R.C.P. No. 1028(a)(4), a party may present the issue of legal insufficiency by the filing of a preliminary objection to a pleading. 22. Pursuant to the Mechanics' Lien Law, "[a]ny party may preliminarily object to a claim upon a showing of . . . lack of conformity with this act." Penstan Supply Div. of Hajoca Corp. v. Traditions of Am. L.P., 2009-3216, 2010 WL 687512 (Pa. Corn. PI. Jan. 7, 2010) (quoting 49 P.S. § 1505). 23. The Lien Law—Title 49 of Pennsylvania's statutes—is to be construed pursuant to its common usage to effect its objects and to promote justice, as is necessary to effectuate the Lien Law's remedial purpose of protecting pre-payment of labor and materials. Bricklayers of W. Pennsylvania Combined Funds, Inc. v. Scott's Dev. Co., 41 A.3d 16, 28 (Pa. Super. Ct. 2012); see also Dyer v. Wallace, 107 A. 754, 755 (Pa. 1919) ("A mechanic's lien is a pure creature of the statute, and compliance with statutory 4 requirements is necessary to its validity."). Moreover, claimants must strictly comply with all service and notice requirements. Bricklayers, 41 A.3d at 29; see also Wyatt Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564 (Pa. Super. Ct. 2009) (stating that "any question of interpretation [of the Lien Law] shall be resolved in favor of strict, narrow construction"). 24. Thus, "[t]o effectuate a valid Mechanics' Lien claim, the contractor or subcontractor must strictly comply with the requirements of Title 49." Wyatt, 976 A.2d at 564. 25. Service of mechanics' liens is governed by 49 P.S. § 1502(c), which states: (c) Manner of service. Service of the notice of filing of claim shall be made by an adult in the same manner as a writ of summons in assumpsit, or if service cannot be so made then by posting upon a conspicuous public part of the improvement. 49 P.S. § 1502(c) (emphasis added). 26. "Consequently, a writ of summons in assumpsit must be served in the same manner as service of process in a civil action." Clemleddy Const., Inc. v. Yorston, 810 A.2d 693, 697 (Pa. Super. Ct. 2002). 27. Where a defendant is a Pennsylvania resident, service in a civil action must be made pursuant to Rule 400 of the Pennsylvania Rules of Civil Procedure, but where a defendant is a non-resident, such service must be made pursuant to Rule 404. 28. Service upon non-resident defendants outside the Commonwealth is governed by Pa.R.C.P. No. 404, which states: Original process shall be served outside the Commonwealth within ninety days of the issuance of the writ or the filing of the complaint or the reissuance or the reinstatement thereof: (1) by a competent adult in the manner provided by Rule 402(a); (2) by mail in the manner provided by Rule 403; 5 (3) in the manner provided by the law of the jurisdiction in which the service is made for service in an action in any of its courts of general jurisdiction; (4) in the manner provided by treaty; or (5) as directed by the foreign authority in response to a letter rogatory or request. 29. "The Mechanics' Lien Law expressly permits posting [of the notice on the improvement] as an alternative service methodology, once the claimant establishes that personal service has not been successfully effectuated." Clemleddy, 810 A.2d at 697 (emphasis added). 30. Thus, the Lien Law requires that service be made using the same methods as original service under Rule 404 as would be made in a civil action in Pennsylvania. 31. If such service cannot be made, then the Lien Law permits service by posting of the claim on the improvement itself. 32. Under Rule 404, service on an out-of-state defendant can be made via certified mail. 33. Claimant demonstrated knowledge of the mailing address of US Real Estate by servings its Notice at US Real Estate's out-of-state mailing address in late March 2013. 34. Therefore, given that US Real Estate is a non-resident defendant, service clearly could have been made through traditional means under Rule 404, rather than posting on the improvement. 35. Moreover, US Real Estate has a registered agent within the Commonwealth that could have personally accepted service of a filing on its behalf. 36. By not serving the Lien Claim via certified mail or upon US Real Estate's registered agent in Pennsylvania personally, Claimant failed to satisfy the service requirements under Rule 404. 6 37. Claimant has not averred, nor can it demonstrate, that service by certified mail or other means could not be made such as to permit service by posting. 38. Similarly, the Lien Claim was not posted on the improvement itself, but rather on a project office trailer located on the Property site, and accordingly, to the extent "posting" was a permissible means of service here, the "posting" that took place did not meet the requirements of the Lien Law. 39. Because Claimant failed to comply with the service requirements under the Lien Law, its Complaint is legally deficient as a matter of law and should be dismissed for failing to state a claim upon which relief can be granted. Second Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(4) - Legal Insufficiency (Demurrer) 40. Paragraphs 1 through 39 are incorporated by reference as if set forth at length herein. 41. In Claimant's Lien Claim, which is attached to its Complaint as Exhibit A, Claimant claims that it is entitled to a lien against the Project and the Property and US Real Estate's interest in same in the amount of$467,345.58. 42. The Lien Law provides: Every improvement and the estate or title of the owner in the property shall be subject to a lien, to be perfected as herein provided, for the payment of all debts due by the owner to the contractor or by the contractor to any of his subcontractors for labor or materials furnished in the erection or construction, or the alteration or repair of the improvement, provided that the amount of the claim, other than amounts determined by apportionment under section 306(b) of this act shall exceed five hundred dollars ($500). 49 P.S. § 1301 (emphasis added). 43. Accordingly, lien rights only arise on a project where there is a debt due by the owner to the contractor or by the contractor to any of the contractor's subcontractors. 7 44. As set forth above, there are no sums due and owing by the owner (US Real Estate) to the contractor (Mowery), nor are there any sums due and owing by the contractor (Mowery) to its subcontractor (Neuber). 45. Significantly, Claimant does not allege, in its Lien Claim or in its Complaint, that any debts are due by the owner to the contractor or by the contractor to any of the contractor's subcontractors. 46. Pursuant to Section 1301 of the Lien Law, Claimant has no right to file a lien against the Project and Property, as there are no debts due by US Real Estate to Mowery or by Mowery to any of its subcontractors. 47. Issues of service and notice under the Lien Law must be resolved in favor of a strict, narrow construction. Bricklayers, 41 A.3d at 29; Wyatt, 976 A.2d at 564. 48. Additionally, "[t]o effectuate a valid Mechanics' Lien claim, the contractor or subcontractor must strictly comply with the requirements of Title 49." Wyatt, 976 A.2d at 564. 49. Claimant's Lien Claim is legally insufficient, as the Lien Law does not allow a lien to be filed against a property or improvements thereto unless there remains some debt due by the owner to the contractor or by the contractor to any of the contractor's subcontractors. 50. As Claimant's Lien Claim is legally insufficient, its Complaint should be dismissed. 51. Moreover, the Contractor and Subcontractor Payment Act (the "Payment Act"), 73 P.S. § 501, et seq., provides that once payment to the subcontractor is made by the contractor, future claims against the contractor by parties owed payment by the subcontractor shall be barred. 8 52. The General Assembly did not intend a prime contractor to be the de facto insurer of construction projects or to have to pay for the same work twice (i.e., direct payment by the contractor to its subcontractors and then again to any second-tier contractor claimants). 53. The Payment Act is consistent with the interpretation of the Lien Law that once a contractor pays its subcontractor, it cannot be liable for additional claims. WHEREFORE, Respondent/Owner US Real Estate Limited Partnership respectfully requests that this Honorable Court sustain the Preliminary Objections to Claimant Rahns Trucking Inc.'s Complaint In Action Upon Mechanics' Lien, based on legal insufficiency/demurrer pursuant to Pa.R.C.P. 1028(a)(4), dismiss Rahns Trucking's Complaint. Respectfully Submitted, MCNEES WALLACE &/NURICK LLC By J•mesW. K 't , Esquire I.'. No. 4724 Geoffrey B. Fehling, Esquire I.D. No. 311711 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Respondent Dated: January 22, 2014 9 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served upon the following individual(s) in the manner indicated: Joseph A. La Flamme, Esquire PAUL R. OBER & ASSOCIATES 234 North Sixth Street Reading, PA 19601 Attorneys for Claimant James W. K t Dated: January 22, 2014 10 ) .< 09 �a PAUL R. OBER& ASSOCIATES ENNs y U f y BY: Joseph A. La Flamme, Esquire LAP�J4 Attorney I.D. #73603 234 North Sixth Street Reading PA 19601 (610) 378-0121 Attorney for Claimant Rahns Construction Materials Co., a division : IN THE COURT OF COMMON PLEAS of H.Y.K. Construction Co., Inc., : CUMBERLAND COUNTY, : PENNSYLVANIA Claimant/Plaintiff : : CIVIL ACTION -LAW v. : NO. 13-2417 MLD US Real Estate Limited Partnership, Respondent/Defendant : CLAIMANT'S/PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTIONS OF RESPONDENT TO CLAIMANT'S/PLAINTIFF'S COMPLAINT UPON MECHANICS' LIEN And now comes Claimant/Plaintiff,Rahns Construction Materials Co.,a division of H.Y.K. Construction Co.,Inc.("Rahns Concrete"),by and through its attorneys,Paul R.Ober&Associates, and hereby responds to the Preliminary Objections to Claimant's/Plaintiffs Complaint in Action Upon Mechanics' Lien. 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. The allegations of Paragraph 5 are denied as they are conclusions of law to which no responsive pleading is required. By way of further response, Claimant/Plaintiff, after reasonable investigation,is without sufficient knowledge or information from which to form a belief as to the truth or falsity of the averment contained in this paragraph. Strict proof is demanded at the time of trial if the same be material. 6. Denied. The allegations of Paragraph 6 are denied as they are conclusions of law to which no responsive pleading is required. By way of further response, Claimant/Plaintiff, after reasonable investigation,is without sufficient knowledge or information from which to form a belief as to the truth or falsity of the averment contained in this paragraph. Strict proof is demanded at the time of trial if the same be material. 7. Admitted. 8. Admitted in part and denied in part. It is admitted that on March 22, 2013 Rahns Concrete and Rahns Trucking provided separate notices of their separate Mechanics' Lien to US Real Estate. It is specifically denied that Claimant/Plaintiff inexplicably divided its pending Mechanics' Lien Claim into two parts as separate lien claims were required to be filed by Rahns Concrete and Rahns Trucking. It is further specifically denied that a copy of the notice is attached to Claimant's/Plaintiff's Complaint as Exhibit A. It is,however,admitted that a true and correct copy of the notice is attached as Exhibit A to Claimant's/Plaintiff's Mechanics' Lien Claim which is attached to Claimant's/Plaintiff's Complaint as Exhibit A. 9. Admitted as stated. It is admitted that on or about May 2,2013 that Claimant/Plaintiff filed a Mechanics' Lien Claim against US Real Estate's interest in a Project and property in the amount of Three Hundred Twenty Thousand Eight Hundred Forty Nine and 91/100 Dollars ($320,849.91)for labor and materials furnished by Claimant/Plaintiff in connection with the Project including,but not limited to,providing and operating a portable concrete plant and supplying concrete materials to and for the Project. 2 10. Admitted in part and denied in part. It is admitted that Claimant/Plaintiff has averred that Neuber failed to pay Claimant/Plaintiff for work,labor and materials provided in connection with providing and operating a portable concrete plant and supplying concrete materials to the Project. It is specifically denied that Claimant/Plaintiff has not alleged that it has not been paid its full contract amount. 11. Denied. The allegations of Paragraph 11 are denied as they are conclusions of law to which no responsive pleading is required. 12. Admitted. 13. Denied. The Court's August 16, 2013 Order is a writing and speaks for itself. 14. Admitted that on or about October 3,2013 Claimant/Plaintiff filed its Complaint in Action Upon Mechanics' Lien in this matter. 15. Denied. The allegations of Paragraph 15 are denied as they are conclusions of law to which no responsive pleading is required. 16. Admitted in part and denied in part. It is admitted that on or about November 5, 2013 a Sheriff's Return of Service was filed indicating that the Mechanics' Lien Claim was served on US Real Estate. Any remaining allegations contained in Paragraph 16 are denied as the Sheriff's Return of Service is a written document and speaks for itself. 17. Denied. The allegations of Paragraph 17 are denied as they are conclusions of law to which no responsive pleading is required. 18. Admitted in part and denied in part. It is admitted that on or about January 3, 2014 a copy of Rahns Concrete's Complaint was served on Counsel for US Real Estate. The remaining allegations and inferences made by Respondent are denied as they are conclusions of law to which no responsive pleading is required. 3 19. Denied. The allegations of Paragraph 19 are denied as they are conclusions of law to which no responsive pleading is required. First Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(4) - Legal Insufficiency (Demurrer) 20. This is an incorporation paragraph to which no response is required. 21. Denied. The allegations of Paragraph 21 are denied as they are conclusions of law to which no responsive pleading is required. 22. Denied. The allegations of Paragraph 22 are denied as they are conclusions of law to which no responsive pleading is required. 23. Denied. The allegations of Paragraph 23 are denied as they are conclusions of law to which no responsive pleading is required. 24. Denied. The allegations of Paragraph 24 are denied as they are conclusions of law to which no responsive pleading is required. 25. Denied. The allegations of Paragraph 25 are denied as they are conclusions of law to which no responsive pleading is required. 26. Denied. The allegations of Paragraph 26 are denied as they are conclusions of law to which no responsive pleading is required. 27. Denied. The allegations of Paragraph 27 are denied as they are conclusions of law to which no responsive pleading is required. 28. Denied. The allegations of Paragraph 28 are denied as they are conclusions of law to which no responsive pleading is required. 29. Denied. The allegations of Paragraph 29 are denied as they are conclusions of law to which no responsive pleading is required. 4 30. Denied. The allegations of Paragraph 30 are denied as they are conclusions of law to which no responsive pleading is required. 31. Denied. The allegations of Paragraph 31 are denied as they are conclusions of law to which no responsive pleading is required. 32. Denied. The allegations of Paragraph 32 are denied as they are conclusions of law to which no responsive pleading is required. 33. Admitted in part and denied in part. It is admitted that Claimant/Plaintiff had knowledge of the alleged mailing address of US Real Estate. It is further admitted that Claimant/Plaintiff served its notice on US Real Estate at an out-of-state mailing address in late March 2013. It is denied that Claimant/Plaintiff served the Notice (defined by US Real Estate as the January 17,2013 notice in Paragraph 7 of US Real Estate's Preliminary Objections) at US Real Estate's out of state mailing address in late March 2013. 34. Denied. The allegations of Paragraph 34 are denied as they are conclusions of law to which no responsive pleading is required. 35. Denied. The allegations of Paragraph 35 are denied as they are conclusions of law to which no responsive pleading is required. By way of further response, Claimant/Plaintiff, after reasonable investigation,is without sufficient knowledge or information from which to form a belief as to the truth or falsity of the averment contained in this paragraph. Strict proof is demanded at the time of trial if the same be material. 36. Denied. The allegations of Paragraph 36 are denied as they are conclusions of law to which no responsive pleading is required. 5 37. Denied. The allegations of Paragraph 37 are denied as they are conclusions of law to which no responsive pleading is required. 38. Denied. The allegations of Paragraph 38 are denied as they are conclusions of law to which no responsive pleading is required. 39. Denied. The allegations of Paragraph 39 are denied as they are conclusions of law to which no responsive pleading is required. Second Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(4)- Legal Insufficiency (Demurrer) 40. This is an incorporation paragraph to which no response is required. 41. Admitted. 42. Denied. The allegations of Paragraph 42 are denied as they are conclusions of law to which no responsive pleading is required. 43. Denied. The allegations of Paragraph 43 are denied as they are conclusions of law to which no responsive pleading is required. 44. Denied. The allegations of Paragraph 44 are denied as they are conclusions of law to which no responsive pleading is required. By way of a further response,the allegations contained in Paragraph 44 of Respondent's Preliminary Objections constitute a speaking demurrer which is prohibited under the Pennsylvania Rules of Civil Procedure. 45. Denied. The allegations of Paragraph 45 are denied as they are conclusions of law to which no responsive pleading is required. By way of a further response,the allegations contained in Paragraph 45 of Respondent's Preliminary Objections constitute a speaking demurrer which is prohibited under the Pennsylvania Rules of Civil Procedure. 6 46. Denied. The allegations of Paragraph 46 are denied as they are conclusions of law to which no responsive pleading is required. By way of a further response,the allegations contained in Paragraph 46 of Respondent's Preliminary Objections constitute a speaking demurrer which is prohibited under the Pennsylvania Rules of Civil Procedure. 47. Denied. The allegations of Paragraph 47 are denied as they are conclusions of law to which no responsive pleading is required. 48. Denied. The allegations of Paragraph 48 are denied as they are conclusions of law to which no responsive pleading is required. 49. Denied. The allegations of Paragraph 49 are denied as they are conclusions of law to which no responsive pleading is required. By way of a further response,the allegations contained in Paragraph 49 of Respondent's Preliminary Objections constitute a speaking demurrer which is prohibited under the Pennsylvania Rules of Civil Procedure. 50. Denied. The allegations of Paragraph 50 are denied as they are conclusions of law to which no responsive pleading is required. 51. Denied. The allegations of Paragraph 51 are denied as they are conclusions of law to which no responsive pleading is required. By way of a further response,the allegations contained in Paragraph 51 of Respondent's Preliminary Objections constitute a speaking demurrer which is prohibited under the Pennsylvania Rules of Civil Procedure. 52. Denied. The allegations of Paragraph 52 are denied as they are conclusions of law to which no responsive pleading is required. 53. Denied. The allegations of Paragraph 53 are denied as they are conclusions of law to which no responsive pleading is required. 7 WHEREFORE,Claimant/Plaintiff, Rahns Construction Materials Co.,a division of H.Y.K. Construction Co., Inc., respectfully requests that this Honorable Court overrule the Preliminary Objections to Claimant's/Plaintiff's, Rahns Construction Materials Co.'s Complaint in Action Upon Mechanics' Lien. Respectfully submitted, PAUL R. OBER& ASSOCIATES By: % `'� /os, eh A. La Flamme, Esquire Attorney for Claimant/Plaintiff F:\Rahns\Mountain Creek Distribution Center\Answer to Preliminary Objections to Complaint in Action Upon Mechanics'Lien-Rahns Concrete.wpd 8 VERIFICATION I,John R.Kibblehouse,Sr., state under the penalties of 18 Pa.C.S. Section 4904(relating Secretary/ to unsworn falsification to authorities) that I am Treasurer of H.Y.K. Construction Co. , Inc. , a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania;that I make this verification on its behalf being authorized to do so; and that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. Dated: .2)1 Q) y / 7, L-1 John R. Kibblehouse, Sr. 11‘1'7 t L Nk�Lt z. I PAUL R. OBER& ASSOCIATES PC d eA1 y COUNT)/ BY: Joseph A. La Flamme, Esquire A Attorney I.D. #73603 234 North Sixth Street Reading PA 19601 (610) 378-0121 Attorney for Claimant Rahns Construction Materials Co., a division : IN THE COURT OF COMMON PLEAS of H.Y.K. Construction Co., Inc., CUMBERLAND COUNTY, : PENNSYLVANIA Claimant/Plaintiff : : CIVIL ACTION -LAW v. : NO. 13-2417 MLD US Real Estate Limited Partnership, • Respondent/Defendant : CERTIFICATE OF SERVICE The document listed below was served on the named parties,persons or entities as follows: 1. Documents-Claimant's/Plaintiff's Answer to Preliminary Objections of Respondent to Claimant's/Plaintiff's Complaint Upon Mechanics' Lien. 2. Parties, Persons or Entities served - James W. Kutz, Esquire and Geoffrey B. Fehling, Esquire, McNees, Wallace &Nurick, LLC, 100 Pine Street, Harrisburg, PA 17108-1166. 3. Date and/or time of service - February 10, 2014. 4. Manner of Service -Regular First Class Mail. Date: 2., ) Wendy A. irn, Legal Assistant to Joseph A. La Flamme, Esquire Attorney for Claimant/Plaintiff PAUL R. OBER & ASSOCIATES BY: Joseph A. La Flamme, Esquire Attorney I.D. #73603 234 North Sixth Street Reading PA 19601 (610) 378-0121 T�F t �� ilk It ;; 2014 J111. �'At CU rr— P'�: i3 PENNS YL AND NIUt 7' .. A Attorney for Claimant Rahns Construction Materials Co., a division : of H.Y.K. Construction Co., Inc., • Claimant/Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. US Real Estate Limited Partnership, Respondent/Defendant : : NO. 13-2417 MLD MECHANICS' LIEN CLAIM RELEASE WHEREAS, Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc. ("Claimant ") filed a Mechanics' Lien Claim in the amount of Three Hundred Twenty Thousand Eight Hundred Forty Nine and 91/100 Dollars ($320,849.91) plus interest (the "Total Claim") for the labor and materials furnished by Claimant in connection with and incidental to the construction of improvements for the Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Cumberland County, Pennsylvania including, but not limited to, providing and operating a portable concrete plant and suppling concrete materials to and for the project (the "Mechanics' Lien Claim"); WHEREAS, the Mechanics' Lien Claim is Docketed in the Montgomery County Court of Common Pleas at Docket No. 13-2417 MLD; NOW THEREFORE, Claimant, intending to be legally bound hereby releases and discharges all that certain piece, parcel or lot of land and the building or buildings thereon known as Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Cumberland County, Pennsylvania 17105 from the Mechanic's Lien Claim. Notwithstanding anything herein to the contrary, this Mechanics' Lien Claim Release is specifically limited to all that certain piece, parcel or lot of land and the building or buildings thereon known as Mountain Creek Distribution Center located at 720 Allen Road, Carlisle, Cumberland County, Pennsylvania 17105. kid q St) Pg H14 elle# 37478 g 3o896,6 IN WITNESS WHEREOF, the Claimant has caused this Mechanics' Lien Claim Release to be executed this ) l ' day of 11)) , 2014. CLAIMANT RAHNS CONSTRUCTION MATERIALS CO., a division of H.Y.K. CONSTRUCTION CO., INC. BY: ,�:�� F:\Rahns\Mountain Creek Distribution Center\Mechanics Claim Release - Rahns Concrete.wpd 2 PAUL R. OBER & ASSOCIATES BY: Joseph A. La Flamme, Esquire Attorney I.D. #73603 234 North Sixth Street Reading PA 19601 (610) 378-0121 Attorney for Claimant Rahns Construction Materials Co., a division of H.Y.K. Construction Co., Inc., Claimant/Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW v. US Real Estate Limited Partnership, Respondent/Defendant : : NO. 13-2417 MLD PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Please mark the above -captioned matter SETTLED, DISCONTINUED and ENDED, with Prejudice. Date: r))>>)) eph A. La Flamme, Esquire Attorney for Plaintiff/Claimant F:\Rahns\Mountain Creek Distribution Center\Praecipe to Settle, Discontinue and End - Rahns Concrete.wpd