Loading...
HomeMy WebLinkAbout05-1412John H. Widman Attorney I.D. No. 37166 Christine N. Shultz Attorney I.D. No. 84828 Susanin, Widman, & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 (610) 337-4510 ROMAN MOSAIC AND TILE CO 2039 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS: P.O. Box 189 525 W. New Castle Street Zelienople, PA 16063, Defendant. Attorneys for Plaintiff Roman Mosaic COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action - Law No. DS - 1410 , ?2,-C) t ? NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by 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 relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17103 (717) 249-3166 John H. Widman Attorney I.D. No. 37166 Christine N. Shultz Attorney I.D. No. 84828 Susanin, Widman & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 (610) 337-4510 ROMAN MOSAIC AND TILE CO 2039 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS: P.O. Box 189 525 W. New Castle Street Zelienople, PA 16063, Defendant. Attorneys for Plaintiff Roman Mosaic COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action - Law No. 6S- NO- COMPLAINT Plaintiff, Roman Mosaic and Tile Company ("Roman Mosaic' or "Plaintiff") acting by and through its undersigned counsel, hereby complains against Defendant, Foreman Architects Engineers ("Foreman") as follows: 1. Plaintiff Roman Mosaic is a Pennsylvania corporation engaged as a tile and terrazzo flooring contractor in the building and construction industry, with its principal office located at 2039 Mountain Road, Manheim, PA 17545. 2. Defendant Foreman is a Pennsylvania corporation offering architectural services, with its principal office located at 525 W. New Castle Street, Zelienople, PA 16063. 3. Foreman is a licensed professional, and Plaintiff is asserting a professional liability claim against Foreman. 4. On or about February 15, 2001, the Carlisle Area School District (CASD) entered into a construction contract with Lyons Construction Services, Inc. ("Lyons"), in which CASD agreed to pay Lyons for the construction of Additions and Alterations to Swartz Intermediate High School, a high school located in Cumberland County. 5. On or about May 29, 2001, Lyons entered into a Subcontract with Plaintiff in which Lyons agreed to pay Plaintiff for Plaintiff's installation of terrazzo at Swartz Intermediate High School. See Exhibit A. 6. Pursuant to the Subcontract, Plaintiff was required to submit terrazzo samples for color approval by Foreman, the Architect on the project, and was required to install only terrazzo that conformed to the samples that were approved by Foreman. 7. Plaintiff began submitting samples to the Architect in December of 2001, and Plaintiff submitted the last of its samples on March 15, 2002. 8. After submitting the last of its samples and prior to installing the terrazzo, Plaintiff contacted the Architect and asked the Architect to send it a list of the color samples that had been approved. 2 9. On or about March 19, 2002, the Architect faxed its list of approved samples submitted by Plaintiff to Lyons, and Lyons forwarded this information to Plaintiff. See Exhibit B. 10. Foreman understood that Plaintiff would rely upon its March 19th approvals regarding colors and composition in order to complete its contractual obligations to Lyons in accordance with the Subcontract. 11. According to the March 19th approval list, Plaintiff was required to install terrazzo that matches the color of Sample number 5944 #2 in the cafeteria area of the Swartz building. 12. In reasonable reliance on the March 19th approval list and in accordance with the Subcontract, Plaintiff installed terrazzo in the cafeteria area of the Swartz building that matches Sample number 5944 #2. 13. Defendant Lyons subsequently wrote Plaintiff and informed Plaintiff that the Owner had rejected the terrazzo installed in the cafeteria area of the Swartz building because the color, which conformed to the March 19th approvals, did not match the color that Owner had selected for that area. 14. In all respects, Plaintiff has complied with and fully performed its obligations under its Subcontract with Lyons and has submitted all of its required applications for payment on the project. 15. Lyons presently refuses to pay the balance that is due and owing to Plaintiff under the Subcontract, which now totals $40,961.76 plus interest. 3 16. Lyons has informed Plaintiff that it stopped paying Plaintiff's invoices because Plaintiff failed to install the proper color of terrazzo in the cafeteria at CASD. 17. In December of 2004, Plaintiff commenced a civil action against Lyons and CASD for the amount of money that Lyons is withholding from Plaintiff. COUNTI NEGLIGENT MISREPRESENTATION/DEFENDANT FOREMAN 18. The averments set forth in paragraphs 1 through 17 of this complaint are incorporated herein by reference as if restated in full. 19. Defendant Foreman responded to Plaintiff's inquiry regarding what samples had been approved in the course of its regular business as the Architect on the project. 20. Defendant Foreman had a professional duty of care to Plaintiff because Foreman understood that Plaintiff would rely on its communication of what samples were approved. 21. Plaintiff reasonably relied upon Foreman's indication of what samples were approved, as the Subcontract required Plaintiff to obtain the Architect's approval of its samples prior to installing terrazzo. 22. In approving the wrong sample for the cafeteria, Foreman failed to use the reasonable care expected from an Architect on a construction project. 21 Plaintiff has been damaged by Foreman's failure to exercise reasonable care because Lyons has refused to pay Plaintiff the monies owed to it 4 on the ground that Plaintiff failed to install the proper color of terrazzo in the cafeteria. WHEREFORE, Plaintiff Roman Mosaic and Tile Company demands that judgment in excess of $40,961.76 be entered in its favor and against Defendant Foreman, together with applicable interest, costs, attorney's fees and such other and further relief as may be just and proper under the circumstances. COUNT II INDEMNIFICATION 24. The averments set forth in paragraphs 1 through 23 of this complaint are incorporated herein by reference as if restated in full. 25. By virtue of Plaintiff's contractual relationship with Lyons, Plaintiff had no choice regarding what color terrazzo to install at CASD, but instead was required to install at CASD terrazzo that matched the samples approved by Foreman. 26. Plaintiff has suffered a loss because Lyons is withholding money from Plaintiff pursuant to its contractual relationship with Plaintiff, on the ground that the terrazzo installed in the cafeteria at CASD is not the proper color. 27. Foreman, and not Plaintiff, is responsible for the color of the terrazzo that was installed at the cafeteria at CASD, and is therefore directly responsible for Plaintiff's loss of $40,961.76 28. As a matter of law and/or in accordance with the Subcontract, Foreman is obligated to indemnify Plaintiff for any damages found to have been caused by installation of the incorrect color of terrazzo at the cafeteria at CASD. 5 WHEREFORE, Plaintiff Roman Mosaic and Tile Company demands that judgment in excess of $40,961.76 be entered in its favor and against Defendant Foreman, together with applicable interest, costs, attorney's fees and such other and further relief as may be just and proper under the circumstances. SUSANIN, WIDMAN & BRENNAN, P.C. Date: A I C ' By::' + r/1 John H. Widman (. o. 37166) Christine N. Shultz (I.D. No. 84828) 455 South Gulph Road, Ste 240 King of Prussia, PA 19406 (610) 337-4510 6 03/15/2005 12:01 FAX 6104307739 ROMAN MOSAIC WC VERIFICATION I, Paul Trevisan, hereby verify that I am the President of Roman Mosaic and Tile Company and that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. This verification is made subject to the penalties of 16 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Paul Trevisan 2002 7 ua cc cuuv uo:uo rAA oxuajurrsa 03/01/01 HUMAN MOSAIC WC SUBCONTRACT AGO 3LMENT 149-13 11002 This Agreement trade and entered into, by and between Lyons Construction Services, hic. a Pennsylvania Corporation, having principal office at 5237 East Trindle Road, Mechanicsburg, Pa 17050 hereinafter called Lyons", of the one part and hereinafter called the "Subcontractor", of the other part ROMAN MOSAIC AND TILE COMPANY 2039 MOUNTAIN RD. MANAE11vi, PA 17545 Phone(717)665-2991 Fax(717)665-3214 1. On February 15, 2001, a contract has been entered into between the Carlisle Area School District, hereinafter called "The Owner", and Lyons for the construction ofAddidous and Alterations to: M& School Complex: Phase 3 - Swartz Education Technology Center, which contract, addenda, if any, plans, specifications, addenda thereto, and g4 ere and special conditions all will collectively be hereinafter referred to as the "Principal Contract". Notice to proceed will be issued approximately March 2, 2001 and contract must be totally completed by April 9, 2003. The project is to be completed in phases. The addendas clarify the completion date for each phase. The Subcontractor does represent that it has carefully and folly examined all ofthe doanneuts that are collectively designated as the principal contract and is thoroughly 5muliar with each of than and Subeontract r further represents that the site for the work has Mewise been examined and the site for the work and the conditions present are imown and are fiimtliar to the Subormtractor. The- parties hereto agree that the principal contract as herein defined is incorporated by reference in every particular in this subcontract and is part hereof In the event, however, of any conflict between the provisions of this subcontract and of the principal contract, the provisions of this subcontract shall cwbmL 2_ Lyons does hereby assign, set over and sublet to the Subcontractor, and the Subcontractor does hereby covenant and agree with Lyons to perform and fact in a satisfactory and workmatUlce manner, and in accordance with the terms and conditions ofthe principal contract, to the approval and acceptance without condition, of the owner and ofLyons, that portion of the work of the principal contract as heroin designated as follows: (A) Scope of Work: SECTION 09410 -PORTLAND CEMhNT TERRAZZO SECTION 09440 - PLASTTC-MATRIX TERRAZZO Also included, but not limited to the following. -Protection of surrounding surfaces from your work -Clean-up and.removal of all debris caused by your work -ALTERNATES G10 and G - 12 HAVE BEEN ACCEPTED BY TBE OWNER -PRECAST TERRAZZO BASE AT EXISTING FLOORS ONLY q?p\ -REFINISH EXISTINQ TERRAZZO PER PLANS. s SPECIFICATIONS ??a -PATCH TERRAZZO AS REQUMED PER TEE ARCHITECTS DRAWINGS EXCLUSIONS: Concur; Lyonsps u,r z}fir _i YtrYln - ?Jrtl MOSAIC WC 03/01/O1 -BONDS -FINAL CLEANING -LEVELING OF EXISTING SLABS DEMOLITION OF EXISTING FLOORS -Protection of flnishad terrazzo. = Dumpster Power supply d hook-up as required for terrazzo. UNIT PRICES: NONE CONTRACT AMOUNT: S317,500.00 6> 0 e DOCUMI2,T LIST: Plans, Specifications, Addendum 1 through 10 as prepared by Farman Architects Engineers, Inc>, Box 189, 2685 Flossler Road, Manheim, Pa, Box 189, 525 West New Castle Street, Zeilienople, Pa 16063. CSUBUMALS as required by contract, allowing 25 days for approval and processing. Z003 TRAE SCBEDUL.E: All walk by the Subcontractor is to be completed to allow sufficient time for the other Subcontractors, Prime Contractors, and Lyons to complete the project no later than Apn19, 2003. Sufficient time must also be allowed for the completion of each phase. The Subcontractor must complete its work as required by the progress of Lyons. (13) Special conditions to schedule ofwork 1. Subcontractors perform work in accordance with the project speoif c Land tract drawings. 2.- )Umatenals siiQplied an ar e u tot requremems ana speu?nexizio? ur this project and all material shipments must be accompanied by certification. 3. Sulwontractor is responsible for administrative procedures and requirements associated with subcontracted schedule of work- 4. Subcontractor is required to fii nish evidence of Insnrance as required by specifications. 5. Quantities of work performed are to be verified by Lyons. 6. Suboonhactoc is bouhd to prevailing wage sdiedule (attached). Certified payrolls must be submitted to Lyons every mouth- No payments shall be released until all certifications are up to date. 7. Subcontractor shall be responsible for any penalties assessed against LyemS due to the lack of performance by Subcontractor. 8. Subcontractor to commence work within 48 hours ofnotice from Lyons and proceed with diligence. 9. Lyons resn-wes the right to issue a joint check to Subcontractor and/or material suppliers. 10. Subcontractor required to have qualified Owner approved Supervisor on the project at all times. 11. Subcontractor required to have all applicable sales and/or use taxes included in prices. 1. The S by ?ceruhtrg dos subcontract, represents and warrants to Lyons that it is able emcee and availalile to perform the whe Jule ofthe work as set forth Concur: Lyons 03/01/01 Z004 in paragraph 2 of this subcontract agreement under the terms and conditions of the principal contract and this subcoutract, in the quantity and for the amount therein set forth, and within the time as is, during the execution ofher principal contract, designated The Subcontractor does furtrer represent to Lyons that where prequalification to perform the work,in this contract is required by the Owner and is a condition m. contracting or subcontracting to peribrm such work, that the Subcontractor is duty so prequalified and will remain prequalified for such work for the duration ofthis subcontract, including any addition or extension thereof 2. LLkBM 'I'Y: The project work designated to be performed under this contract will be performed entirely as Subcontractor's sole responsibility. Subcontractor will carry, for the duration of this contact, public general liability insurance a minimum amount as indicated in the specifice6oas. Subcontractor warrants and agrees. to provide a Ceramic of hw=ce to evidence said coverage and naming Lyons as additional insured on said policy. Subcontractor fisther warrants the existence of Workers' Compensation and property and vehicle ooverage and shall provide a copy of said insurance binder to Lyons. All of the above mentioned policies insurance shall provide that said policies of insurance shall not be changed or cancelled until ninety (90) days written notice has been given to Lyons. 3. PROGRESS OF WORK The Subcontractor will begin said work within 48 hours after he is notified by Lyons and will carry forward and complete said work as rapidly as the progress of the work ofLyons will permit The Subcontractor will fisnish said materials, labor and equipment, prosecute said work with diligence, without delay, and will not in any manner delay or otherwise interfere with the work of Lyons or other Subcontractors. Should L conclude that a Subcontractor is tmjustly and without valid reason delaying said work or th Subcontractor has performed said work in a deficient or improper manner, he shall so n said Subcontractor by facsimile or by telegram; setting forth the complaint in detail, and the, Subcontractor fills to comply with said notice and to correct the complaint, Lyons shall have 5 the legal right to take possession of all equipment, machinery and supplies, in and up on the " contract site, including, but not limited m; construction machinery, equipment and supplies of the Subcontractor and to use the same to correct the complaint or to have the complaint corrected by subletting this work to otters, and said construction machinery and equipment as needed to be used to correct said work deficiencies shall be used by Lyons or any Subcontractor designated by Lyons to so use the same. Lyons shall charge the expense of the eoaecting work against said subcontract and deduct the same from the contract. 4. THAE ALLOWED FOR CONSTRUCTION OF PROJECT: It is expressly understood and agreed by and between the parties hereto that time is and shall be considered the essence of the contract on the part of said Subcontractor and should the said Subcontractor fail to begin, continue and complete the work as herein provided and should Lyons suffer or permit said Suboorinadar to occupy more time than required under this agreement, in that the said Subcontractor hereby covenants and agrees to indemnify and save harmless Lyons from any loss and damage which may be compelled to make good to the Owner, for or on account of delay in the completion thereof; insofar as said delay was caused by the said Subcontractor. If the Subcontractor claims he is delayed in tie prosecution of his work through no fault of his own and that such delay is costly to him, he shall be entitled only to such compensation for such delay as is allowed and paid for by the Owner to Lyons to the extent such is attributable to the Subcontractor's work any such claim by the Subcontractor shall be submitted to Lyons in writing, containing all perturent details, by the Subcontractor five (5) days prior to the deadline needed for Lyons to submit to the Owner. Fail= ofthe Subcontractor to give such written notice within the time frame needed by Lyons shall terminate any right of the Subcontractor to make such claim to Lyons or the owner. S. CO TIO WORK: The Subcontractor shall provide sufficient, safe and proper Conan: Ly - 3 vaicciZuca UO:uo rAA ni0430773a ROMAN MOSAIC WC [a 005 03/01/01 facilities at all times for the inspection of the work by the project Engineer, Architect and Lyons or their authorized representatives, for the inspection of the Subcontractor's work and materials used or to be used He shall 9 once, remove all materials, and take down and rebuild all portion of the work condemned by the Project Engineer, the Architect and Lyons or their representative, upon receiving notice in writing of such condemnation. 6. EXTRA WORK: All wdra work to be performed by the Subcontractor must be condensed to writing at a rate of pay apved upon before such work is undertaken. Said extra wank agreement must be signed by representatives of Lyons and Subcontractor and will be subject to the terms and conditions of the subcontract agreement. 7. ' INDEMNIFICATION OF CONTRACTOR- PATENTS AND PATENT 1UGWS: The Subcontractor hereby covenants and agrees to indemnify and save harmless Lyons from any and all claims or suits from infringements of patents or violation ofPatmt rights, including all costs and expenses to which Lyons may be put in defending any action that may arise through the work of the Subcontractor. 8. INDEMNIFICATION OF CONTRACTOR AND OWNER FROM ALL LIABILITY: The Subcontractor shall have charge of the tenure work now compldion and acceptance, and shall alone be liable fur and shall pay all loss or damage caused by him or by his servants, agents or employees to property, buildings or adjacent work and for any accident to persons that may occur during the perfbi once of the work covered by this subcontractor at anytime thereafter as a coosequeace of the performance of said work. The Subcontractor shall observe all State and Municipal laws, ordinances and regulations and shall defend and save harmless Lyons and the Owner farm all snits and claims whatever for loss of life or injury occurring t? employees ofthe Subcontractor who perform such work. The Subcontractor agrees to fully )I indemnify, protect and save harmless Lyons and the Owner from all liability from all claims loss, damage, suits and actions of every kind and from all costs and expenses in connection with such claims, suits and actions due to injuries to persons or damage to property whether resulting from acddemy negligence or any other cause whatsoever occurring during the performance of the work covered by this subcontract or at any time thereafter as a consequence of the peefe rmanee of the same or which may at any time occur or result from or be caused by such work and if there are any such claims Installed when the work herein provided for is completed, final settieatent by Lyons and subcontractor shall be deferreduntil such claims are adjusted or suitable special indemnity acceptable to Lyons is provided by the Subcontractor. 9. TAXES: The Subcontractor shall Pay all the Paansylvaaia sales and use taxes on all taxable items, and all Federal Old Age Benefit taxes, Federal Unwaployment Compensation lnstuance on all labor furnished under this contract, as required by the Commonwealth of Pennsylvania and the United States Government , as well as any other taxes, Federal, State or Local, applicable to or occasioned by the Subcondractos''sperfvrmaace of this contract or employment of persons hereunder. 10. ASSIGNMENT OF SUBCONTRACT. None of the rights undo this subcontract. including assignment of fiords, shall be assigned by the Subcontractor without prior written consort from Lyons. Any attempt to assign the subcontract will operate as an instant forfeiuae and repudiation thereof by the Subcontractor and the rights ofth parties shall be determined in the same manner as though the Subcontractor had at the time of such attempted assignment failed and refused to continue to perfam the contract. In case of default by Lyons, this subcontract is assigned to UNITED STATES FIDIaLIIY AM GUARANTY COMPANY, C/O ST. PAUL COMPANIES, P. O. BOX 13576, BALTIMORE, MD 21203. Concur; Lyon-r ROMAN MOSAIC WC 03/01/01 11. EX'T'ENSION OF TIlvIE: No allowance of time will be made to the Subcontractor for delay in preparing his drawings or, in sectu ing approval ofthe Owner and his representative when such drawings are not properly prepared for approval of the Owner and his representative. Extensions oftime to be granted to the Subcontractor will be the same only as is granted to Lyons by the Owner, and will be in accordance with the specifications in the principal contract that lie with' anceusly, with the execution of this agreement, R006 with a contract board, w performance ofthe]? cafi?aCted the penal sum of 100°/6 of the amount of the contra a for labor and materials," covering the prompt payment in fuller sourer d Tdto Sub-Subcontractors and for all materials £nnish equipment used and/or labor snpp ' or performed in the pros ion off6e work. and also in the penal sum of 100% of the amrnmt o °ea esuaglia$re Mi& the above baa? FGRMk-e? a u? / 15. TERMS OF PAYMRNT: Lyons agrees to pay the Subcontractor his portion of all pa is received by Lyons from the Owner within seven (7) days after receipt thereof It is also understood and agreed that all estimates shall include the materials on site if so permitted by the Owner as a part of the current estimate. A. Ninety (90) percent ofthe compensation due to Subcontractor under the agreement shall be paid by Lyons to Subcontractor upon appropriate invoice by Subcontractor after substantial inspection and approval of the work by Lyons; and B. Ten (10) percent of the compensation due Subcontractor under this agreartent shall be paid by Lyons to subcontractor upon appropriate invoice by Subcontractor after' acceptance of the work by the Owner or general Subcontractor. If the work is found to be unacceptable by the Owner or his agumy Lyons shall have the right to complete any Cantnac or aha no Tid V h?iold? rom Subencon Subcontract as?refaatn ge a percentage that 1s higher than the, rC ntag held p?nor S contra ' M It tsPer unedersmo? ?n4 agree°?thano payma ac?Sfmt shall operate as an approval of said work or in ateriaN or any part thereof 16. APPROVAL OF SUBCONTRACT: It is understood and agreed by the parties hereto that I this agreement is subject to the approval of saute by the Owner. 17. LYONS RIGHT TO WI'1'TIFIOIa PAYMENTS: Lyons shall have the tight to withhold hr payments from the Subcontractor, in addition to retain percentages as may be provided in the ? 6C5 principal conhact, of such amounts as may be necessary both to insure compliance with all of the terms of this contract by subcontract, for work performed by the Contractor or other G w Subcontractors Ift accordance with paragraph 4 of this contract, and as necessary to pay all h ^? just claims for labor and services, rental and materials furnished in and about said work r which is the obligation ofthe Subcontractor to pay. Lyons shall have the right , acting as p agent ofthe subcontractor, to apply such retained amount to the payments of such just clauns , and for work required to be performed. 18. SUBCONT'RACTOR'S RELEASE TO CONTRACTOR Upon receipt of final payment, the S does hereby agree to give Lyons a duly signed release relieving the Contractor fr ility in 7sard to monies due under this subcontract, and the Subcontractor will Concur: Lyon ` 5 S MOSAIC WC 03/01/01 certify that all of his obligations for services, materials, equipment rattal, tools, etc-, incurred on this subcontract have b= paid and that if any liability should Occur on his behalf; then the Subcontractor will indemnify the Contractor. 19. pR10R NEGOTIATIONS AND AGREEMENTS: All negotiations and agreements prior to the date ofthis agreement are merged herein. This subcontract has been read and is WY understood by the Subcontractor. Lyons and the Subcontractor for themselves, they successors, executors, administrators and assigns, hereby ages to the full performance of the covenants ofthis agreement. 20. TERMINATION: IfLyons work is terminated or abandoned, if Subcontractor cannot work in harmony with other Contractors, Subcootractors or their employers, is in breach of contract or it is otherwise necessary for the welfare of the job in the judgment ofLyons to terminate this contract, Lyons may do so by written notice to Suboontraemr and, absent any breach of contract by subcontract, pay Subcontractor on a pro rata basis for Contract completion to that point accordingly as Lyons has been so paid for such work by the Owner, but Subcontractor shall not receive or is entitled to anticipated profits for any work not completed by Subcontractor at time oftermination. 21. REMEDIES ON DEFAULT: Any disputes as to the operation, fulfillment of meaning oftbis contract or ofthe execution thereof, may be resolved either by arbitration or by action at law, at the, sole option of Lyons. If Lyorn shall determine in its sole discretion, to resolve the dispute between the parties by arbitratirm, such should be in accordance with the then prevailing rules, regulations and procedures for commercial arbitration as established and administered by the American Arbitration Association and an award pursuant to such arbitration shall be final and binding on both parties. Lyons shall have thirty (30) days after written notice and receipts of complete inkrmation by the Subcoatrarxor to determine what legal action it will choose to take to resolve the disputed matter. In witness whereof; the parties hereto, with the intent to be legally bound hereby, have executed this subcontract the day and year above written- ATTEST: Ai.AO'SECRET Y (CORPORATE SEAL) CONTRACTOR: LYONS CONSN VICES, INC. MI?XV T. LX , PRESIDENT ATTEST OR WITNESS: (CORPORATE SEAL) Concur: LJ_11 Paul T/Trevfsan, Ylce-Presiamt 6 _? prl ?„?c mat X06 ??y- 525 4?' ?& ASS fv?v?lll Fb`i ` 2?t 1 CeIY IWO ?s ? 5 ??y 1" . 1; ®4at i, °.?,etc'a5 Ga ?,?owa R+6 /?i 'd stL AA d 6 ' #59 ?ca?°? fop S15g5Q " Ga?OS of °?c ?l,4wG ??sap°s ,?tm9 lV ? ?o /' 3 John H. Widman Attorney I.D. No. 37166 Christine N. Shultz Attorney I.D. No. 84828 Susanin, Widman & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 (610) 337-4510 ROMAN MOSAIC AND TILE CO. 2039 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS: P.O. Box 189 525 W. New Castle Street Zelienople, PA 16063, Defendant. Attorneys for Plaintiff Roman Mosaic COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action - Law No. CERTIFICATE OF MERIT AS TO DEFENDANT FOREMAN ARCHITECTS ENGINEERS 1, Christine N. Shultz, Esq., certify that expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against Defendant, Foreman Architects Engineers. R/E+NNAN, P.C. SUSANIN, WID'MMA?N & B/j (9, r Date: 3'r?lC7? -L ! ?-,1! By: , e hristine N. Shultz (I.D. j 4o. 84828) 455 South Gulph Road, Ste 240 King of Prussia, PA 19406 (610) 337-4510 -, _: ? ? -? ;? •; ,, ,: _, ??:> SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-01412 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROMAN MOSAIC AND TILE CO VS FOREMAN ARCHITECTS ENGINEERS R. Thomas Kline , Sheriff or Deputy Sheriff who duly sworn according to law, says, that he made a diligent sear and inquiry for the within named DEFENDANT to wit: FOREMAN ARCHITECTS ENGINEERS but was unable to locate Them in his bailiwick. He therefor ing and deputized the sheriff of BUTLER County, Pennsylvania, to serve the within COMPLAINT & NOTICE 2005 , this office was in receipt attached return from BUTLER Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Butler County 45.00 Postage .37 So answers: R. Thomas Kline Sheriff of Cumberland County 82.37 04/22/2005 SUSANIN WEIDMAN BRENNAN Sworn and subscribed to before me this C>Z5 day of A.D. t U Prothonot y - V?lj In The Court of Common Pleas of Cumberland County, Pen Roman Mosaic & Tile Co vs. Foreman Architects Engineers No. 05-1412 civil Now, March 23, 2005 , I, SHERIFF OF CUMBERLAND COUNT hereby deputize the Sheriff of B,,r] er County to execute this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, Pe Affidavit of Service Now, within 20,, at o'clock M. upon at by handing to a and made known to So answers, the contents Sworn and subscribed before me this _ day of 20? copy of the original Sheriff of COSTS SERVICE _ MILEAGE AFFIDAVIT PA, do Writ, this the PA Couutp of JUutler, Peuuotbauia t )ffiCC Of (:ollnt? Sheriff Dennis C. Rickard, Sheriff Douglas R, l lays, Chief Deputy Thomas W. King, H], Solicitor Court Docket #: o?- j7 /aI County of Butler County, Commonwealth of Pennsylvania ROMAN MOSAIC AND TILE CO VS. FOREMAN ARCHITECTS ENGINEERS Sheriff File Number - 05000676 Affidavit of Service COMPLAINT IN CIVIL ACTION - NOT DEFEND, COUNTS & VERIFICATION I hereby CERTIFY and RETURN that on 4/7/2005 at 2:35PM at PO BOX 189 525 W NEW CAS' LIENOPLE, PA 16063 the within COMPLAINT IN CIVIL ACTION - NOTICE TO DEFEND, IRWVERIFICATION. was served on FOREMAN ARCHITECTS ENGINEERS, the defendant named t following manner: ALTERNATE PERSON By delivering to and leaving with BETH DOERFLINGER the RECEPTIONIST to the defendant thereof, a person over the age of eighteen. Said address was the BUSINESS of the defendant. SERVICE ATTEMPTS This is the first attempt at service Deputy Notes: Fees Received from Attorney: SURCHARGE ($10.00), WRIT ($9.00), COPIES ($5.00), MILEAGE ($12.00), SERVICE ($9.00) $45.00 Attorney Name: CUMBERLAND COUNTY SHERIFF, ONE COURTHOUSE SQUARE, CARLISL 17013 Affirmed & Subscribed to before Me April 14, 2005 DAMON HOAK, D • Notary Public Courthouse • P.O. Box 1208 . Bt.-., _- TO coM hlSalUi:G%rkF64 F,?Si V1?Ui ?Atl iN d:tir 2Dat1 i ?t Sheriff, Butler County, Pennsylvania STREET UNTS & in, in the true copy Charges Fax: (724) 284- 5248 • Telephone (724) 284-5245 • TDD (724) 284-5473 Matthew M . Hoffman PA I.D. No. 43949 Jessica R. Quinn-Horgan PA I.D. No . 89124 F. Stephen son Matthes PA I.D. No . 67408 Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Attorneys for Defendant. Foreman Architects Engineers, Inc. ROMAN MOSAIC AND TILE CO. 2038 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS P.O. Box 189 525 W. New Castle Street Zelienople, PA 16063, Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Civil Action -- Law No. 05-1412 PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT NOTICE TO PLEAD TO: PLAINTIFF. ROMAN MOSAIC AND TILE CO. You are hereby notified to file a written response to the enclosed Preliminary within twenty (20) days from service hereof or a judgment VVy be entered Matthew M. Hoffman I' v /Attorney I.D. No. 43949 Jessica R. Quinn-Horgan Attorney I.D. No. 89124 Stephenson F. Matthes Attorney I.D. No. Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Counsel for Defendant Matthew M. Hoffman PA I.D. No. 43949 Jessica R. Quinn-Horgan PA I. D. No. 89124 F. Stephenson Matthes PA I.D. No. 67408 Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Attorneys for Defendant. Foreman Architects Engineers, Inc. ROMAN MOSAIC AND TILE CO. 2038 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS P.O. Box 189 525 W. New Castle Street Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Civil Action -- Law No. 05-1412 PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant, Foreman Architects Engineers ("Foreman" or "Defendant") by and through its undersigned counsel, Tucker Arensberg, P.C., files the following Preliminary Objections to Plaintiffs Complaint in the above-captioned case, averring as follows: BACKGROUND Plaintiff Roman Mosaic and Tile Co. ("Roman" or "Plaintiff") initiated this case by filing a Complaint against Defendant Foreman on March 17, 2005. A true and correct copy of (the time-stamped Complaint is incorporated herein and attached hereto as Exhibit "A". In its Complaint, Plaintiff alleges that it entered into a subcontract with Lyons (Constructions Services, Inc. ("Lyons"), wherein it agreed to complete the installation of terrazzo necessary for the additions and alterations to Swartz Intermediate High School in the Carlisle Area School District (the "Project"). 3. Pursuant to its subcontract with Lyons, Plaintiff was required to submit terrazzo samples for color approval to Defendant Foreman, the Project architect, and was required to install only terrazzo that conformed to the samples approved by Foreman. 4. Plaintiff alleges in its Complaint that subsequent to its submission of terrazzo samples for approval, Foreman issued a list of approved samples on March 19, 2002, including Sample No. 5944 #2, which Plaintiff installed at the Project and was rejected by the Project owner. 5. Plaintiff now seeks damages for its reliance on the allegedly negligent misrepresentations made by Foreman on March 19, 2002, when it approved Sample No. 5944#2. 6. In response to the Complaint, Defendant Foreman files the following Preliminary Objections. FIRST PRELIMINARY OBJECTION: 7. Pennsylvania Rule of Civil Procedure 1028 (a)(4) provides for a preliminary objection, in the nature of a demurrer, based upon the legal insufficiency of a pleading. 8. Count I of Plaintiffs Complaint attempts to set forth a cause of action against Foreman for negligent misrepresentation. See Exhibit A, Paragraphs 1-23. 9. Pursuant to 42 Pa.C.S. §5524, the statute of limitations for a cause of action ,sounding in negligence is two (2) years. 10. In Paragraph 9 of the Complaint, Plaintiff states that Foreman's alleged negligent misrepresentation occurred on March 19, 2002, when Foreman issued a list of approved samples, including Sample No. 5944 #2, which Plaintiff installed at the Project and was rejected 2 by the Project owner. 11. Accepting all well pleaded, material allegations in the Complaint as true, Plaintiff was required to file its cause of action of negligent misrepresentation against Foreman within two years from the date the right to institute and maintain a suit arose (i.e. on or before March 19, 2004). See Cappelli v. York Operating Company Inc., 711 A.2d 481, 484 (Pa. Super. 1998) (citing Hayward v. Medical Center of Beaver County, 608 A.2d 1040, 1042 (Pa. 1992)). 12. As Plaintiff failed to file its claim of negligent misrepresentation against Defendant Foreman until March 17, 2005, over two (2) years after Defendant's alleged negligent misrepresentation, the statute of limitations bars Count I of Plaintiffs Complaint and it accordingly must be dismissed. See Exhibit A. WHEREFORE, Defendant, Foreman Architects Engineers, respectfully request that this Honorable Court sustain its Preliminary Objection and dismiss Count I of Plaintiffs Complaint with prejudice. SECOND PRELIMINARY OBJECTION: 13. Pennsylvania Rule of Civil Procedure 1028 (a)(4) provides for a preliminary objection, in the nature of a demurrer, based upon the legal insufficiency of a pleading. 14. Count II of Plaintiffs Complaint attempts to set forth a cause of action against Foreman for indemnification. See Exhibit A, Paragraphs 24-28. 15. Plaintiff alleges in Paragraph 26 of the Complaint that it "has suffered a loss because Lyons is withholding money from Plaintiff'. See Exhibit A, Paragraph 26. 16. "Indemnity is a common law remedy which shifts the entire loss from one who has been compelled, by reason of some legal obligation, to pay a judgment occasioned by the initial negligence of another who should bear it." Builders Supply Co. v. McCabe, 77 A.2d 368, 370 (Pa. 1951); See Restatement (First) of Restitution § 76 (1962). 3 17. Under Pennsylvania law "...before the right of indemnification arises, the indemnitor must in fact pay damages to a third party. Any action for indemnification before such payment ... is premature." McClure v. Deerland Corporation, 585 A.2d 19, 23 (Pa. Super. 1991) (citing F.J. . Schindler Equipment Company v Raymond Company, 418 A.2d 533, 534 (Pa. Super. 1980)). 18. Accepting all well pleaded, material allegations in the Complaint as true, Plaintiff has failed to set forth a claim against Foreman for indemnification. 19. Count II fails to establish that Plaintiff Roman has been required to pay damages to a third party or suffered a loss as a result of judgment or settlement. 20. Moreover, Plaintiff Roman has not alleged that it has suffered any definitive loss, but merely alleges that money it is owed is currently being withheld by Lyons. 21. Accordingly, Plaintiff has failed to set forth a claim of indemnification against Foreman and Count II of the Complaint must be dismissed. WHEREFORE, Defendant, Foreman Architects Engineers, respectfully request that this Honorable Court sustain its Preliminary Objection and dismiss Count It of Plaintiffs Complaint with prejudice. ? IT358381-1 021025-122396 Respectfully submitted, A 7tthew M. Hoffman I.D. No. 43949 Jessica R. Quinn-Horgan PA I. D. No. 89124 F. Stephenson Matthes PA I.D. No. 67408 Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Attorneys for Defendant, Foreman Architects Engineers, Inc. 4 John H. Widman Attorney I.D. No. 37166 Christine N. Shultz Attorney I.D. No. 84828 Susanin, Widman, & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 (610) 337-4510 ROMAN MOSAIC AND TILE CO. 2039 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS: P.O. Box 189 525 W. New Castle Street Zelienople, PA 16063, Defendant. APR - 71219 FOREMAN ARCHITECTS ENGINEERS ZELIENOPLE, PA Attorneys for Plaintiff Roman Mosaic COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action - Law No. 05 - )Ally NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by 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 relief requested by the plaintiff. You may lose money or property or other important to you. EXHIBIT A.. '1'$:?jUE COPY FROM P[00r<U ?'l3 .+5:1ant1tt?7? t.:J0.l ti:•.f oe.i?u:4 My b'Y+y :cd ?y2,".t: vy : ;. j {ri arl ra :ep? -r„S:w, ?. Y1? ?"`(3d?f ?r C/1lLr?s ..-t YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17103 (717) 249-3166 John H. Widman Attorney I.D. No. 37166 Christine N. Shultz Attorney I.D. No. 84828 Susanin, Widman & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 (610) 337-4510 ROMAN MOSAIC AND TILE CO 2039 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS: P.O. Box 189 525 W. New Castle Street Zelienople, PA 15063, Defendant. Attorneys for Plaintiff Roman Mosaic COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action - Law No. COMPLAINT Plaintiff, Roman Mosaic and Tile Company ("Roman Mosaic" or "Plaintiff") acting by and through its undersigned counsel, hereby complains against Defendant, Foreman Architects Engineers ("Foreman") as follows: 1. Plaintiff Roman Mosaic is a Pennsylvania corporation engaged as a the and terrazzo flooring contractor in the building and construction industry, with its principal office located at 2039 Mountain Road, Manheim, PA 17545. I 2. Defendant Foreman is a Pennsylvania corporation offering architectural services, with its principal office located at 525 W. New Castle Street, Zelienople, PA 16063. 3. Foreman is a licensed professional, and Plaintiff is asserting a professional liability claim against Foreman. 4. On or about February 15, 2001, the Carlisle Area School District (CASD) entered into a construction contract with Lyons Construction Services, Inc. ("Lyons"), in which CASD agreed to pay Lyons for the construction of Additions and Alterations to Swartz Intermediate High School, a high school located in Cumberland County. 5. On or about May 29, 2001, Lyons entered into a Subcontract with Plaintiff in which Lyons agreed to pay Plaintiff for Plaintiffs installation of terrazzo at Swartz Intermediate High School. See Exhibit A. 6. Pursuant to the Subcontract, Plaintiff was required to submit terrazzo samples for color approval by Foreman, the Architect on the project, and was required to install only terrazzo that conformed to the samples that were approved by Foreman. T Plaintiff began submitting samples to the Architect in December of 2001, and Plaintiff submitted the last of its samples on March 15, 2002. & After submitting the last of its samples and prior to installing the terrazzo, Plaintiff contacted the Architect and asked the Architect to send it a list of the color samples that had been approved. 2 9. On or about March 19, 2002, the Architect faxed its list of approved samples submitted by Plaintiff to Lyons, and Lyons forwarded this information to Plaintiff. See Exhibit B. 10. Foreman understood that Plaintiff would rely upon its March 19th approvals regarding colors and composition in order to complete its contractual obligations to Lyons in accordance with the Subcontract. 11. According to the March 19th approval list, Plaintiff was required to install terrazzo that matches the color of Sample number 5944 #2 in the cafeteria area of the Swartz building. 12. In reasonable reliance on the March 19th approval list and in accordance with the Subcontract, Plaintiff installed terrazzo in the cafeteria area of the Swartz building that matches Sample number 5944 #2. 13. Defendant Lyons subsequently wrote Plaintiff and informed Plaintiff that the Owner had rejected the terrazzo installed in the cafeteria area of the Swartz building because the color, which conformed to the March 19th approvals, did not match the color that Owner had selected for that area. 14. In all respects, Plaintiff has complied with and fully performed its obligations under its Subcontract with Lyons and has submitted all of its required applications for payment on the project. 15. Lyons presently refuses to pay the balance that is due and owing to Plaintiff under the Subcontract, which now totals $40,961.76 plus interest. 3 16. Lyons has informed Plaintiff that it stopped paying Plaintiffs invoices because Plaintiff failed to install the proper color of terrazzo in the cafeteria at CASD, 17. In December of 2004, Plaintiff commenced a civil action against Lyons and CASD for the amount of money that Lyons is withholding from Plaintiff. COUNT I NEGLIGENT MISREPRESENTATION/DEFENDANT FOREMAN 18. The averments set forth in paragraphs 1 through 17 of this complaint are incorporated herein by reference as if restated in full. 19. Defendant Foreman responded to Plaintiffs inquiry regarding what samples had been approved in the course of its regular business as the Architect on the project. 20. Defendant Foreman had a professional duty of care to Plaintiff because Foreman understood that Plaintiff would rely on its communication of what samples were approved. 21. Plaintiff reasonably relied upon Foreman's indication of what samples were approved, as the Subcontract required Plaintiff to obtain the Architect's approval of its samples prior to installing terrazzo. 22. In approving the wrong sample for the cafeteria, Foreman failed to use the reasonable care expected from an Architect on a construction project. 23. Plaintiff has been damaged by Foreman's failure to exercise reasonable care because Lyons has refused to pay Plaintiff the monies owed to it 4 on the ground that Plaintiff failed to install the proper color of terrazzo in the cafeteria. WHEREFORE, Plaintiff Roman Mosaic and Tile Company demands that judgment in excess of $40,961.76 be entered in its favor and against Defendant Foreman, together with applicable interest, costs, attorney's fees and such other and further relief as may be just and proper under the circumstances. COUNT II INDEMNIFICATION 24. The averments set forth in paragraphs 1 through 23 of this complaint are incorporated herein by reference as if restated in full. 25. By virtue of Plaintiffs contractual relationship with Lyons, Plaintiff had no choice regarding what color terrazzo to install at CASD, but instead was required to install at CASD terrazzo that matched the samples approved by Foreman. 26. Plaintiff has suffered a loss because Lyons is withholding money from Plaintiff pursuant to its contractual relationship with Plaintiff, on the ground that the terrazzo installed in the cafeteria at CASD is not the proper color. 27. Foreman, and not Plaintiff, is responsible for the color of the terrazzo that was installed at the cafeteria at CASD, and is therefore directly responsible for Plaintiffs loss of $40,961.76 28. As a matter of law andlor in accordance with the Subcontract, Foreman is obligated to indemnify Plaintiff for any damages found to have been caused by installation of the incorrect color of terrazzo at the cafeteria at CASD. 5 WHEREFORE, Plaintiff Roman Mosaic and Tile Company demands that judgment in excess of $40,961.76 be entered in its favor and against Defendant Foreman, together with applicable interest, costs, attorney's fees and such other and further relief as may be just and proper under the circumstances. SUSANIN, WIDMAN & BRENNAN, P.C. Date: jib d > By;' John H. Wi man (. o. 37166) Christine N. Shultz (I.D. No. 84828) 455 South Gulph Road, Ste 240 King of Prussia, PA 19406 (610) 337-4510 6 AUID IN Au JAlI TYU VERIFICATION I, Paul Trevisan, hereby verify that I am the President of Roman Mosaic and Tile Company and that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities. r?? ? Paul Trevisan WJ U UL 7 03/01/01 SUBCONTRACT AGF.Iil 'f 149-13 Thin Age=eat made and entered into, by and between Lyons Caustrimuon Services, Inc. a Pennsylvania Ccrporatian, having principal office at 5237 Bast Trindle Road, Mechanlcsbtag, Pa 17050 heranaitr called' Lyons", of the one part and herema8?r called the "mow", of the other part . ROMAN MOSAIC AND TILE COMPANY 2039 MOUNTAIN RD. MANHEI I, PA 17545 Phone(717)665-2991 Fax (717) 665-32I4 On February 15, 2001, a contract has been entered into between the Carlisle Area School District, havina&er called -no Owner", and Lyons for the construction of Additions and Alterations to: High School Complex: Phase 3 - Swartz Education Technology Center, which contract, addenda, if any, plans, specifications, addenda thereto, and general and special conditions all will collectively be herama@er refaced to as the "Principal Contract". Notice to proceed will be issued approximately March 2, 2001 and contract must be totally aaaplded by April 9, 2003. The project is to be completed in phases. The addendas clarify the completion date for each phase. The Subcontractor does represent that it has carefully and fully c mused all ofthe doaments that are collectively designated as the priucipal cox1 act and is thoroughly familiar with each of them and Suhcm&.tdar further represents that the site far the work has hUrwise been = mnaad and the site for the work and the conditions present are known and are >mm3liar to the Subcontractor. The- parties hereto agree that the principal combrad as herein defined is incorporated by reference in every partiailar in this subcontract and is part hereof In the event, however, of any conflict between the provisions of ibis subcontract and of the principal contract, the provisions of this suboentract shall control. 2 Lyons does hereby assign, set over and sublet to the Subcontractor, and the Subcontractor does hereby covenant and agree with Lyons to perform and construct in a satisfactory and workmanh"ke manner, and in accordance with the terms and conditions oftheprincipal contract, to the approval and acceptance without condition, of the owner and of Lyons, that portion ofthe work of the principal contract as harem designated as Views: (A) Scope of Work: SECTION 09410 -PORTLAND CEMENT TERRAZZO SECTION 09440 -PLASTIC-MATRIX TERRAZZO Aim included, but not limited to the following. -Protection of Surrounding suruces from your work -Cle=AV end removal of all debri s catased by your work -ALTERNATES 0-10 and G -12 HAVE BEEN ACCEPTED By TEE OWNER PRECAST TERRAVO BASE AT EXISTING FLOORS ONLY ?\aaNb - (pXISTIN;t'1$pjLAZZO PER PLANS.& SPECIFICATIONS -PATCH TERRAZZO AS REQUIRED PER THE ARCHITECTS DRAWINGS EXCLVSIONS??/J ? Concur: Lyons S 0 III 03/01/01 -BONDS -FINAL CLEANING -LEVELING OF EXISTING SLABS DEMOLITION OF EXISTING FLOORS Protection of finished terrazzo, Dumpster - Pover supply b hook-up as required for terrazzo. UNrf PRICES: NONE CONTRACT AMOUNT: S317,500.00 DOCUMENT LIST: Plans, Specifications, Addendum 1 through 10 as prepared by P(reman Architects Engineers, Inc>, Boat 139, 2685 Hassler Road, Marheim, Pa, Box 199, 525 West New Castle Street, Zelenople, Pa 16063. CSUBMITTALS, as required by contract, allowing 25 days for approval and processing. TllvE SCHMULE: All work by the Subcontractor is to be completed to allow sufficient time for the other Subcontractors, Prase Contractors, and Lyons to complete the project no later than April 9, 2003. Sufficient time must also be allowed for the oompletiun of each pba4e. The Subcontractor must complete its work as required by the progress of Lyons. (R) Special conditions to schedule ofwork . 1. Subcontractor to perform work in aecardmace with the project speaificafimt_and contract drawings. 2.- All Medals supplied and/or u?Fy Iia U meet regrm v=en_U an sp on this project and all material sbipments must be accompaaiel by certification, 1 Subcontractor is responsible for administrative procedures and requirements associated with subcontracted schedule of work- 4. Subcontractor is required to furnish evidence of Insurance as required by specifications. 5. Quantities of work performed are to be verified by Lyons. 6. Subcenhactar is bound to prevailing wage schedule (attached). Certifiedpayrolls must be submitted to Lyons every month. No payments shall be released until all certifications are up to date. 7. Subcontractor shall be responsible for aaypeealties assessed against Lyons due to the lack of performance by Subcontractor. 8. Subcontractor to commence work within 48 hours afxwdce from Lyons and proceed with diligence. 9. Lyons reserves the right to issue a joint check to Subcontractor and/or material suppliers. 10. Suboontactor requited to have qualified Owner approved Supervisor on the project at all times. 11. Subcontractor required to have all applicable sales and/or use taxes hicluded in prices. 1. The S by rareartiag dos subcontract, represents and warrants to Lyons that it is able, eucod and available W perform the schedule ofthe work as set forth Cont. I-yons z 03101!01 m paragraph 2 of this subcontract agremtmt under the terms and conditions of the principal contract and this subaoatraof, in the quantity and for the amount therein set forth, and within the time as is, during the exeartion ofthe principal contract, designated. The Subcontractor does further represent to Lyons that where prequa ication to perform the work, in this contract is required by the Owner and is a condition to. contracting or subcontracting to pm (xm such work, that the Subcontractor is duly so prequalified and will remain prequalified for such work for the duration ofthis m*oontract, including may addition or extension thereof 2. L ABRII Y: The project work designated to be performed under this contract will be performed entirely as Subcontractor's,sole responsibility. Subcontractor will carry, for the duration of this contract, public general liability rusurance it minimum amount as indicated in the spedficatiaas- Subcontractor watrtmts and agrees. to provide a Certificate of Insurance to evidence said covaage and naming Lyams as additional tonsured on said polity. Subcontractor further warrants the adstence of Workers' Compensation and property and vehicle coverage and shall provide a copy of said insurance binder to Lyons. AJJ of the above meationed policies insurance shall provide that said policies of insurance shall not be changed or cancelled until ninety (94) days written notice has been given to Lyons. 3. PROGRESS OF WORK The Subcontractor wiz] begin said work within 48 hours after he is notified by Lyons and will carry forward and complete mid work as rapidly as the progress of the work of Lyers will permit- The Subcontractor will 5snish said materials, labor and equipment, prosaatte said work with diligence, without delay, and will not in any manner delay or otherwise interfere with the work of Lyons or other Subcontractors. Should L conclude that a Subcontractor is unjustly and without valid reason delaying said work or th Subcontractorhas perfor med said work Ina deficient or improper manner, he shall so said Subcontractor by &csm le er by telegram; setting froth the complaint in detail, and the Subcontractor falls to comply with said notice and to correct the complaint, Lyons shall have the legal right to take possession of all equipment, machinery and supplies, in and up on the contract site, including, but not limited to; construction machinery, equipment and supplies of the Subcontractor and to use the -same to correct the complaint or to have the complaint corrected by subletting this work to others, and said construction machinery end equipment as needed to be used to correct said work deficiencies shall be used by Lyons or any Subcontractor designated by Lyons to so use the same. Lyons shall charge the expense of the conicting work against said subcontract and deduct the same fiom the contract. 4. TIME ALLOWED FOR CONSTRUCTIQN OF PROJECT- It is expressly understood and agreed by and between the parties hereto that time is and shall be considered the essence of the contract on the part of said Subcontractor and should the said Subcontractor fail to be&a, continue and Complete the work as herein provided and should Lyons suffer or permit said Subcontractor to occupy more time than required under this agreement, in that the said Subcontractor hereby coveaaDL5 and agrees to indenwify and save harmleas Lyons from any loss and damage which may be compelled to make good to the Owner, for or on account of delay in the completion they 4 Insofar as said delay was caused by the said Subcontractor. If the Subcontractor claim he is delayed in the prosevi daa ofhis work through no fault of his own and that such delay is costly to him, he sball be entitled oalyto such Compensation for such delay as Is allowed and paid for by the Owner to Lyons to the extent such is attributable to the Subcontractor's work any such elaim by the Subcontractor shall be submitted to Lyons 3a wring, containing all pertmedt details, by the Subcontractor five (5) days prior to the deadline needed for Lyons to submit to the Owner. Failure ofthe Subcontractor to give such written notice with n the time frame needed by Lyons shall terminate any right of the Subcontractor to make such claim to Lyons or the owner. 5. CO TTON WOM- The Subcontractor shall provide sufficient safe and proper Concur, Lyo'_"'yQ''/ - 3 03/01/01 facilities at all times for the inspection of the work by the Project Engineer, Architect sad Lyons nor their authaa ized represeutatives, for the inspection offer Subcontractor's work and materials used ar to be used He shall at once, remove all materials, and take down and rebuild ad portion of the work condemned by the Project Engineer, the Architect and Lyons or their representative, upon receiving notice in writing of auch condemnation. 6. EXTRA WORK: All extra work to be performed by the subcontractor must be condensed to writing at a rate ofpay agreed upon. before such work is undertaken. Said extra work avemem must be signed by representatives ofLyoes and Subcontractor and will be subject to the terms and conditions of the aubcoatract agreement, 7. INDEMNIFICATION OF CONTRACTOR-PATENTS AND PATENT RIGM: The Subcontractor hereby covenants and agrees to mdemuify and save harmless Irons from any and all chins or suits from infringements of patents or violation of patent rights, including all costs and expenses to which Lyons may be put in defending any action that may arise through the work of the Subeamiractor_ 8. INDEMNIFICATION OF CONTRACTOR AND OWNER FROM ALL LIABUMI: The Subcontractor shall have charge of the lcotare work until completion and acceptance, and shall alone be liable fa and shall pay all loss or damage caused by him or by his servants, agents or employees to property, buildings or adjacent work and for any accident to persons that may ocau during the pwihimeace of the work covered by this subcontract or at any time thereafter as a coosequence otter performance ofsaid work. The Subcontractor shall observe all State and Mtmicipal laws, ordinances and regulations and shall defend and save harmless Lyons and the Owner from all suits and claims whatever for loss oflife or injury occrmrmn employees of the Subcontractor who perform such work. The Subcontractor agrees to fully indemnify, protect and save harmless Lyons and the Owner Erect all liability from all claims leas, damage, suits and actions of every kind and from all costs and expenses in connection with such claims, suits and aeons dne to injuries to persons or damage to property whether resulting from accidaat, negligence or any other curse whatsoever occurring during the peafix anee of the work covered by this suhcouha,ct or at anytime thereafter as a consequence of the performance offer same or which may at any time occur or result from or be caused by such work and if there are any such claims installed when the work herein provided for is completed, final settlevment by Lyons and Subcontractor shall be deferred until such claims are adjusted or suitable special indemnity acceptable to Lyons is provided by the Subcontractor. 9. TAXES: The Subcontractor shall pay all the Pennsylvania sales and use taxes on all taxable items, and all Federal Old Age Benefit taxes, Federal ilnemploj+ment Compeosafm Insurance on all labor furnished under this contract, as required by the Commonwealth of Pennsylvania and the United States Government , as well as any other taxes, Federal, State or Local, applicable to or ow4moned by the Subconhactor'sperf rmance of this contract or employment ofpersoos hereunder. 10. ASSIGNMENT OP SUBCONTRACT: None of the rights under this subcontract, including assignment of iimds, shall be assigned by the Subcontractor without prior written ocrseat from Lyons. Any attempt to assign the auboout act will operate as an instant fmfam= and repudiation thereof by the Subcontractor and the rights ofth patties shall be dd=Aned in the same manner as though the Subcontractor had at the time of such attempted assignment failed and re8ued to continue to perform the cant cox. In case pf default by Lyons, this subcontract is assigned to UNITED STATES FIDELITY AND GUARANTY COMPANY, GO ST. PAUL COMPANIES, P. O. BOX 13576, BALTIMORE, MD 21203. Conan: L? 03/01/01 11. EXTENSION OF T21YM. No allowance of time will be made to the Subcontractor for delay in preparing his drawings or, in securing approval ofthe Owner and his representative when such drawings are not properly prepared for approval of &a Owner and his representative. EAensioos oftime to be granted to the Subcontractor will be the same only as is granted to Lyons bythe Owner, and will be in accordance with the specifications in the principal contract that he VMsi=tasty, with the execution of this agre=mar, provide L requested, with a contract board, co tisfactoryperfotmaace ofthee WXIr- ed, the penal stmt of 100°/a of the amount ofthe ceartrac a 'tiemaThand for labor and materials' covering the prompt payment in tilljp sertne to Sub-Subcontractors and for all materials fuTm near equipment used and/or labor ed, at the pro`x=-orMre work., and also in the penal suet of 100% of the amwmt o Asia \J XlaN j' 15. TERMS OF PAYMENT: Lyons agrees to pay the Subcontractor his portion of all pa is received by Lyons from the thvncr within seven (7) days after receipt thereof It is also understood and agreed that all estimates shall include the materials on site if so permitted by the Owner as a part of the current estimate A. Ninety (90) percent ofthe compensation due to Subcontractor tender the agreement shall be paid by Lyons to Subcontractor upon appropriate invoice by Subcontractor after substantial inspection and approval of the work by Lyons; and B. Ten (10) percent of the compensation due Subcontractor tender this agreement shall be paid by Lyons to Subcontractor upon appropriate invoice by Subcontractor after' aooeptanoe of the work by the Owner or general Subcontractor. If the weak is found to be unacceptable by the Owner or his agent, Lyons shall have the right to complete any C o n + re = e er as M t v ( f h ? o l d t"rom Sb ub?n aimretaa I ge a percentage that i s h i gher than f u8,tmtn rc aura held b 0.rner S,trcontr•ec?-fr' W er tmedecstootl 6W agree?tha'iao paynGl2 z a8llat shall operate as an approval of said work or materials, or any part thereof ?a1u 16. APPROVAL OF SUBCONTRACT: It is understood and agreed by the parties hereto that /%/? this agreement is subject to the approval of some by the Owner. 17. LYONS RiGM TO WITIMOLD PAYMENTS: Lyons shall have the right to withhold t payments from the Subcontractor, in addition to retain percentages as may be provided in the J be S principal c bnhaet, of such amounts as may be necessary both to insure compliance with all of u the terms of this contract by subcontract, for work performed by the Contractor or other 6l w Subcontractors lil accordance with paragraph 4 of this contract, and as necessary to pay all just claims for labor and services, rental and materials famished in and about said work, which is the obligation ofthe Subcontractor to pay. Lyons shall have the right , acting as 1 p agent ofthe subcontractor, to apply such renamed amount to the payments of arrch just darns and far work required to be performed.{ s ; 18. SUBCONTRACTOR'S RELEASE TO CONTRACTOR: Upon receipt of final payment, the S does hereby agree to give Lyons s duly signed release relieving the Contractor ility in rep?rd to monies due under this subamt vA and The Subcontractor will Conte: Lyons S /- 03/01/01 certify that all ofhis obligations for services, materials, equipment rental, tools, etc.; inured on this subcontract have beta paid and that if any liability should occur on his behalf then the Subcontractor will indemnify the Contractor. 19. FRIOR NEGOTIATIONS AND AGRHEMEIM: All negotiations gad agreetuents prior to the date ofthis agreement are merged herein. This subcontract has been read and is fully understood by the Subcontractor. Lyons and the Subcontractor for themselves, their successors, executors, administrators and assigns, hereby agree to the fill] performance of the covenants oftbis agreement. 20. TERMINATION: IfLyons work is termhuLW or abandoned, if Subcontractor cannot work in harmony with other Contractors, Subcontractors or their employees, is inbrw& of contract or it is otherwise necessary for the welfare, of tho job in the judgment ofLyous to terminate this contract, Lyons may do so by written notice to Subcontractor and, absent any breach of contract by subcontract, pay Subcontracw on a pro rata bads for Contract completion to that point accordingly as Lyons has been so paid for such work by the Owner, but Subcontractor shall not receive or is altitled to anticipated profit, for any work not completed by Subcontractor at time oftamination. 21. REUEDIES ON DEFAULT: Any disputes as to the operation, fulfillment of meaning of this contract or ofthe execution thersot may be resolved either by arbitration or by action at law, at the, sole option of Lyons. If Lyons shall determine in its sole discretion, to resolve the dispute between the parties by arbitration, such should be in aocordanee with the then prevailing rules, regulations and procedures for commercial arbitration as established and administered bythe American Arbimedon. Association and an award prnaaaot to such arbitration shall be final and binding on both parties. Lyons shall bane thirty (30) days afba written notice and receipts of complete mfarmatioa by the Subcontractor to determine what legal action it will dtoos6 to take to resolve the disputed matter. In witness vvhereo4 the parties hereto, with the intent to be legally bawd hareby, have executed this subcontract the day and year above written. ATTEST: /?i: aon? Y (CORPORATE SEAL) CO 'NTRACTOR ONS CONS VICES, INC. L T.LY ,PRESIDENT ATTEST OR WITNESS: (CORPORATE SEAL) Paul T-,./Trev1`sa6, Yloe-Presidett Cones: Lyon'" S _9Py /L449LM4 Fax FOREMAN Architects Engineers Transmittal PO BOX 189 - 525 W NEW CASTLE ST 44 ZEI IRg0FLE PA 16063 ARMAN To: Berry Lyons From: Christine V. Walters Company. LyansCmzhvcticn Company: FcrernaaArehitect Er4;ineers Fix*: 717306.1795 Faz # : (724) 452-0136 Phone # : 717.697.3771 P} =#, (724) A52-969D RE: Carlisle Date: 19 March 2002 Pa-s includin¢ this cover sheaf 1 ? Urgent 0 For Review ? Please Comment QPlease Reply ? Please Can • Co=ants: Barry, The approved terrazzo colors axe as follows, ?S 95944 #1 Matches Existing 1'?L 05944 #2 Matches Existing 1 >r? #585o'7etxaCotta"Color #6119 "Green" Color ?L 3 If there am any more questions or enncerns please let rm know. k ?? t/?f VVILI.--/ Christinc V. Walters John H. Widman Attorney I.D. No. 37166 Christine N. Shultz Attorney I.D. No. 84828 Susanin, Widman & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 (610) 337-4510 ROMAN MOSAIC AND TILE CO. 2039 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS: P.O. Box 189 525 W. New Castle Street Zelienople, PA 16063, Defendant. Attorneys for Plaintiff Roman Mosaic COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action - Law No. OS - 1q1),_ CERTIFICATE OF MERIT AS TO DEFENDANT. FOREMAN ARCHITECTS ENGINEERS I, Christine N. Shultz, Esq., certify that expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against Defendant, Foreman Architects Engineers. SUSANIN, WIDMAN & BRENNAN, P.C. Date: By: Klf w., //;// J- L hristine N. ShultzN. Shultz (I.-D. o. 84828)84828) 455 South Gulph Road, Ste 240 King of Prussia, PA 19406 (610) 337-4510 Matthew M . Hoffman PA I.D. No . 43949 Jessica R. Quinn-Horgan PA I.D. No . 89124 Stephenso n F. Matthes PA I.D. No . 67408 Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Attorneys for Defendant. Foreman Architects Engineers, Inc. ROMAN MOSAIC AND TILE CO. 2038 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS P.O. Box 189 525 W. New Castle Street Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Civil Action -- Law No. 05-1412 ORDER OF COURT AND NOW, this day of 2005, upon consideration of Defendant Foreman Architects Engineers, Inc.'s Preliminary Objections to Plaintiffs Complaint and Brief in Support thereof, it is hereby ORDERED, ADJUDGED and DECREED that said Preliminary Objections are sustained and Counts I and II of Plaintiffs Complaint are dismissed, with prejudice. J. CERTIFICATE OF SERVICE The undersigned counsel of record hereby certifies that the foregoing Preliminary Objections to Complaint has been served via United States First Class Mail, postage pre-paid, this day of April 2005, upon: John H. Windman, Esquire Christine N. Shultz, Esquire Susanin, Widman & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406-3119 '? L1T:358381-1 021025-122396 y C1 c> i5 r? i.ss o John H. Widman Attorney I.D. No. 37166 Christine N. Shultz Attorney I.D. No. 84828 McAleese, McGoldrick, Susanin & Widman, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 Attorneys for Plaintiff (610) 337-4510 Roman Mosaic ROMAN MOSAIC AND TILE CO. 2039 Mountain Road Manheim, PA 17545, Plaintiff V. FOREMAN ARCHITECTS ENGINEERS: P.O. Box 189 525 W. New Castle Street Zelienople, PA 16063, Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action - Law No. 05-1412 PRAECIPE TO LIST FOR ARGUMENT To the Prothonotary: Kindly list the issues raised in Defendant's Preliminary Objections and Plaintiff's Answer to Defendant's Preliminary Objections for argument on July 6, 2005. Date: -'? / n Christine N. Shul z Attorney for Plaintiff r 'ry f CERTIFICATE OF SERVICE I, Christine N. Shultz, hereby certify that on this date, I served a true and correct copy of the foregoing Praecipe to List for Argument on counsel of record in this action, via first class United States Mail, postage pre-paid, addressed as follows: Matthew M. Hoffman, Esquire Jessica R. Quinn-Horgan, Esquire F. Stephenson Matthes Tucker Arnsberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Date: !3 6 Christine N. Shultz r,? _ { _ is `-? ? .-? John H. Widman Attorney I.D. No. 37166 Christine N. Shultz Attorney I.D. No. 84828 Susanin, Widman & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 (610) 337-4510 ROMAN MOSAIC AND TILE CO. 2039 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS: P.O. Box 189 525 W. New Castle Street Zelienople, PA 16063, Defendant. Attorneys for Plaintiff Roman Mosaic COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action - Law No. 05-1412 PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS Plaintiff, Roman Mosaic and Tile Co., by and through its undersigned counsel, hereby answers the preliminary objections of the Defendant, Foreman Architects Engineers, and in opposition thereto, avers the following: BACKGROUND 1. Denied, save it is admitted that Plaintiff filed a complaint against Defendant on or about March 17, 2005, a copy of which is attached as Exhibit A to Defendant's Preliminary Objections. 2. Denied. The averments contained in paragraph 2 are denied because the complaint is a writing which speaks for itself and should be referred 1 to for its contents. Plaintiff denies any and all characterizations and summaries of that document by Defendant. 3. Admitted. 4. Denied. The averments contained in paragraph 4 are denied because the complaint is a writing which speaks for itself and should be referred to for its contents. Plaintiff denies any and all characterizations and summaries of that document by Defendant. 5. Denied, save it is admitted that Plaintiff seeks damages from Defendant for the reasons set forth in its complaint. 6. This paragraph contains averments to which no response is required. To the extent a response is required, the averments of paragraph 6 are denied. FIRST PRELIMINARY OBJECTION 7. This paragraph contains conclusions of law to which no response is required. 8. Denied. By way of further response, Count I sets forth a claim for negligent misrepresentation. 9. This paragraph contains conclusions of law to which no response is required. 10. Denied, save it is admitted that on March 19, 2002 Defendant negligently misrepresented that Sample No. 5944 #2 was approved. The remaining averments contained in paragraph 10 are denied because the complaint is a writing which speaks for itself and should be referred to for its 2 contents. Plaintiff denies any and all characterizations and summaries of that document by Defendant. 11. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the averments of paragraph 11 are denied. By way of further response, Plaintiff's claim of negligent misrepresentation did not accrue until Plaintiff first suffered damage as a result of the negligent misrepresentation. 12. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the averments of paragraph 12 are denied. By way of further response, Plaintiff's claim of negligent misrepresentation did not accrue until Plaintiff first suffered damage as a result of the negligent misrepresentation. Additionally, the affirmative defense of statute of limitations is not properly raised in preliminary objections; instead, it is properly raised in new matter. See Devine v. Hutt, 863 A.2d 1160, 1167 (Pa.Super. 2004). WHEREFORE, Roman Mosaic and Tile Co. respectfully requests the Court to enter an order overruling Foreman Architects Engineers' preliminary objections to Roman Mosaic and Tile Co.'s complaint, and directing Foreman Architects Engineers to answer the complaint within ten (10) days. SECOND PRELIMINARY OBJECTION 13. This paragraph contains conclusions of law to which no response is required. 3 14. Denied. By way of further response, Count II sets forth a claim for indemnification. 15. Admitted. 16. This paragraph contains conclusions of law to which no response is required. 17. This paragraph contains conclusions of law to which no response is required. 18. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the averments of paragraph 18 are denied. 19. Denied. 20. Denied. By way of further response, Plaintiff has alleged that it has suffered a definite loss of $40,961.76 plus interest. 21. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the averments of paragraph 21 are denied. WHEREFORE, Roman Mosaic and Tile Co. respectfully requests the Court to enter an order overruling Foreman Architects Engineers' preliminary objections to Roman Mosaic and Tile Co.'s complaint, and directing Foreman Architects Engineers to answer the complaint within ten (10) days. 4 r ohn H. Widman Attorney I.D. No. 37166 Christine N. Shultz Attorney I.D. No. 84828 Susanin, Widman & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 5 CERTIFICATE OF SERVICE I, Christine N. Shultz, hereby certify that on this date, I served a true and correct copy of the foregoing Answer to Defendant's Preliminary Objections on counsel of record in this action, via first class United States Mail, postage pre- paid, addressed as follows: Matthew M. Hoffman, Esquire Jessica R. Quinn-Horgan, Esquire F. Stephenson Matthes Tucker Arnsberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 :_5 l3 a Date Christine N. Shultz 6 h> ? ?, ?. ? a ?•.) ?. John H. Widman Attorney I.D. No. 37166 Christine N. Shultz Attorney I.D. No. 84828 McAleese, McGoldrick, Susanin & Widman, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 Attorneys for Plaintiff (610) 337-4510 Roman Mosaic ROMAN MOSAIC AND TILE CO. COURT OF COMMON PLEAS 2039 Mountain Road CUMBERLAND COUNTY Manheim, PA 17545, Civil Action - Law Plaintiff, No. 05-1412 V. FOREMAN ARCHITECTS ENGINEERS: P.O. Box 189 525 W. New Castle Street Zelienople, PA 16063, Defendant. PRAECIPE TO FILE RETURN OF SERVICE To the Prothonotary: Kindly file the enclosed return of service evidencing service on Defendant in the above-referenced matter. Date: S I O Christine N. hu tz Attorney for Plaintiff 4 SHERIFF'S RETURN - OUT OF COUNTY ASE NO: 2005-01412 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROMAN MOSAIC AND TILE VS FOREMAN ARCHITECTS ENGINEERS R. Thomas K1 , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: FOREMAN ARCHITECTS ENGINEERS but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of BUTLER County, Pennsylvania, to serve the within COMPLAINT & NOTICE On April 22nd , 2005 , this office was in receipt of the attached return from BUTLER Sheriff's Costs: Docketing 18.00 So answers- Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Butler County 45.00 Sheriff of Cumberland County Postage .37 82.37 04/22/2005 SUSANIN WEIDMAN BRENNAN Sworn and subscribed to before me this day of A. D. Prothonotary In The Covert of Common Pleas of Cumberland County, Pennsylvania Ronan Mosaic & Tile Cc vs. Foreman Architects Engineers No. 05-1412 civil Now, March 23, 2005 I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of n„ i er County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a and made known to copy of the original So answers, Sheriff of 20 , at o'clock M. served the COSTS Sworn and subscribed before SERVICE $ me this _ day of , 20 MILEAGE AFFIDAVIT the contents thereof. County, PA I A, Couutp of 38utier, Venngprbania Office of County Sheriff Dennis C. Rickard, Sheriff Douglas R. Hays, Chief Deputy Thomas W. King, 111, Solicitor Court Docket #: 05_ lylo County of Butler County, Commonwealth of Pennsylvania ROMAN MOSAIC AND TILE CO vs FOREMAN ARCHITECTS ENGINEERS Sheriff File Number - 05000676 Affidavit of Service yNf Rif, •?rltR COU1dt COMPLAINT IN CIVIL ACTION - NOTICE TO DEFEND, COUNTS & VERIFICATION I hereby CERTIFY and RETURN that on 417/2005 at 2:35PM at PO BOX 189 525 W NEW CASTLE STREET ZELIENOPLE, PA 16063 the within COMPLAINT IN CIVIL ACTION - NOTICE TO DEFEND, COUNTS & VERIFICATION, was served on FOREMAN ARCHITECTS ENGINEERS, the defendant named therein, in the following manner: ALTERNATE PERSON By delivering to and leaving with BETH DOERFLINGER the RECEPTIONIST to the defendant a true copy thereof, a person over the age of eighteen. Said address was the BUSINESS of the defendant. SERVICE ATTEMPTS This is the first attempt at service Deputy Notes: Fees Received from Attorney: SURCHARGE ($10.00), WRIT ($9.00), COPIES ($5.00), MILEAGE ($12.00), SERVICE ($9.00) Total Charges $45.00 Attorney Name: CUMBERLAND COUNTY SHERIFF, ONE COURTHOUSE SQUARE, CARLISL 17013 Affirmed & Subscribed to before Me April 14, 2005 DAMON H0 AK, D Notary Public I ,- v - ? v 2tF [,oM m4$IOi3 ?. om. int. 9' t .xkt,el i'c,.. '14ett'` Sheriff, Butler County, Pennsylvania Courthouse • P.O. Box 1208 • BL--_.,-.. ----- __-- Fax: (724) 284- 5248 • Telephone (724) 284-5245 • TDD (724) 284-5473 , - -: -?, - _? ;- <.`; ROMAN MOSAIC AND TILE CO., PLAINTIFF V. FOREMAN ARCHITECTS ENGINEERS, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 05-1412 CIVIL TERM f ORDER OF COURT AND NOW, this y day of July, 2005, the preliminary objections of defendant to plaintiffs complaint, ARE DISMISSED. By tae Court, z t ' Edgar B. Christine N. Shultz, Esquire Susanin, Widman & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 For Plaintiff Jessica R. Quinn-Horgan, Esquire Trucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 For Defendant 9.,LS-bd 1-1 sal /11-1 ?I ,!I IV ? 1 .6 WV S I il" SOOZ I,uvjciJGi 31-11 J0 ?'7+'a:!+?-0311 Matthew M . Hoffman PA I.D. No. 43949 Jessica R. Quinn-Horgan PA I.D. No. 89124 F. Stephen son Matthes PA I.D. No. 67408 Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Attorneys for Defendant. Foreman Architects Engineers, Inc. ROMAN MOSAIC AND TILE CO. 2038 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS P.O. Box 189 525 W. New Castle Street Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Civil Action -- Law No. 05-1412 - Civil Term NOTICE TO PLEAD TO: ROMAN MOSAIC AND TILE CO. You are hereby notified to file a written response to the attached Answer and New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17103 (717) 249-3166 LIT'367294-1 021025-122396 Matthew M . Hoffman PA I.D. No. 43949 Jessica R. Quinn-Horgan PA I.D. No. 89124 F. Stephen son Matthes PA I.D. No. 67408 Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Attorneys for Defendant. Foreman Architects Engineers, Inc. ROMAN MOSAIC AND TILE 2038 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS P.O. Box 189 525 W. New Castle Street Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Civil Action -- Law No. 05-1412 ANSWER AND NEW MATTER Defendant, Foreman Architects Engineers, Inc. ("Foreman" or "Defendant") by and through its undersigned counsel, Tucker Arensberg, P.C., files the following Answer and New Matter in response to Plaintiffs Complaint in the above-captioned matter and in support thereof states as follows: After reasonable investigation, Foreman is without sufficient knowledge and information to form a belief as to the truth of the allegations set forth in Paragraph 1 of Plaintiffs Complaint, and those allegations are therefore denied and proof thereof is demanded. 2. The allegations set forth in Paragraph 2 of Plaintiffs Complaint are admitted. The allegations set forth in Paragraph 3 of Plaintiffs Complaint are admitted. 4. The allegations set forth in Paragraph 4 of Plaintiffs Complaint refer to an instrument in writing, the terms and conditions of which speak for themselves. 5. The allegations set forth in Paragraph 5 of Plaintiffs Complaint refer to an instrument in writing, the terms and conditions of which speak for themselves. 6. The allegations set forth in Paragraph 6 of Plaintiffs Complaint refer to an instrument in writing, the terms and conditions of which speak for themselves. 7. The allegations set forth in Paragraph 7 are denied. It is denied that Plaintiff submitted terrazzo samples to Foreman for approval. To the contrary, Plaintiff submitted terrazzo samples to Lyons Construction Services, Inc. ("Lyons"), general contractor on the CASD Project, which in turn submitted them to Foreman for review and approval. It is further denied that Plaintiff submitted samples from December 2001 through March 15, 2002. To the contrary, the first sample submitted by Lyons to Foreman occurred on September 12, 2001 and the last occurred on March 12, 2002. The allegations set forth in Paragraph 8 of Plaintiffs Complaint are admitted in part and denied in part. It is admitted that Foreman was contacted prior to installation of the terrazzo for a list of approved color samples. However, it is denied that Plaintiff contacted Foreman for the approval list. To the contrary, Lyons, general contractor on the CASD Project, contacted Foreman for the approval list. 9. The allegations set forth in Paragraph 9 of Plaintiffs Complaint refer to an instrument in writing, the terms and conditions of which speak for themselves. To the extent a response is deemed necessary, the same are admitted in part and denied in part. It is admitted that Foreman faxed a type-written list of approved samples to Lyons. However, it is denied that Exhibit B to the Complaint, which is referenced in Paragraph 9, is the document created by Foreman and forwarded to Lyons. To the contrary, Foreman only prepared the type-written list of approved terrazzo color samples. The handwritten notations next to each approved terrazzo color were not inserted by Foreman. 10, The allegations set forth in Paragraph 10 of Plaintiffs Complaint are admitted in part and denied in part. It is admitted Foreman was aware that Plaintiff would rely on its type- written approval list of terrazzo samples for color and composition. However, it is denied that Foreman's approval list was the only document upon which Plaintiff would rely regarding the color and composition of the terrazzo to be installed at CASD. To the contrary, Foreman's approval list merely included approved colors of terrazzo but did not include information regarding where each approved sample was to be installed. Plaintiff was required to consult the contract drawings prior to installation. Moreover, the contract drawings and Foreman's approval list both indicated that Plaintiff was to match the color of the existing floor. 11. The allegations set forth in Paragraph 11 of Plaintiffs Complaint are admitted in part and denied in part. It is admitted Foreman approved Sample Number 5944 #2 for installation at CASD. However, it is denied that Foreman's approval list required Plaintiff to install terrazzo that matched Sample Number 5944 #2 in the cafeteria area of the Swartz building at CASD. To the contrary, Foreman's approval list merely included approved colors of terrazzo but did not include information regarding where each approved sample was to be installed. Plaintiff was required to consult the contract documents and drawings prior to installation. Moreover, the contract drawings and Foreman's approval list both indicated that Plaintiff was to match the color of the existing floor. 12. The allegations set forth in Paragraph 12 of Plaintiff's Complaint are admitted in part and denied in part. It is admitted 13. The allegations set forth in Paragraph 13 of Plaintiffs Complaint refer to an instrument in writing, the terms and conditions of which speak for themselves. 14. The allegations set forth in Paragraph 14 of Plaintiffs Complaint are legal conclusions to which no response is required. To the extent a response is deemed necessary, the same are denied and proof thereof is demanded. 4 15. After reasonable investigation, Foreman is without sufficient knowledge and information to form a belief as to the truth of the allegations set forth in Paragraph 15 of Plaintiffs Complaint, and those allegations are therefore denied and proof thereof is demanded. 16. After reasonable investigation, Foreman is without sufficient knowledge and information to form a belief as to the truth of the allegations set forth in Paragraph 16 of Plaintiffs Complaint, and those allegations are therefore denied and proof thereof is demanded. 17. After reasonable investigation, Foreman is without sufficient knowledge and information to form a belief as to the truth of the allegations set -forth in Paragraph 17 of Plaintiffs Complaint, and those allegations are therefore denied and proof thereof is demanded. COUNTI NEGLIGENT MISREPRESENTATIONIDEFENDANT FOREMAN 18. Foreman incorporates by reference Paragraphs 1 through 17 of its Answer as if fully set forth at length. 19. The allegations set forth in Paragraph 19 of Plaintiffs Complaint are admitted. 20. The allegations set forth in Paragraph 20 of Plain iffs Complaint are legal conclusions to which no response is required. To the extent a response is deemed necessary, the same are denied and proof thereof is demanded. 21. The allegations set forth in Paragraph 21 of Plaintiffs Complaint are legal conclusions to which no response is required. To the extent a response is deemed necessary, the same are denied and proof thereof is demanded. 22. The allegations set forth in Paragraph 22 of Plaintiffs Complaint are legal conclusions to which no response is required. To the extent a response is deemed necessary, the same are denied and proof thereof is demanded. 23. The allegations set forth in Paragraph 23 of Plaintiffs Complaint are legal conclusions to which no response is required. To the extent a response is deemed necessary, the same are denied and proof thereof is demanded. WHEREFORE Defendant Foreman Architects Engineers respectfully requests this Honorable Court dismiss Plaintiffs Complaint with prejudice, award Defendant its attorney fees and costs incurred in the defense of this action, and grant any further relief this Honorable Court deems just and equitable. COUNT II INDEMNIFICATION 24. Foreman incorporates by reference Paragraphs 1 through 23 of its Answer as if fully set forth at length. 25. The allegations set forth in Paragraph 25 of Plaintiffs Complaint are admitted. 26. The allegations set forth in Paragraph 26 of Plaintiffs Complaint are legal conclusions to which no response is required. To the extent a response is deemed necessary, the same are denied and proof thereof is demanded. 27. The allegations set forth in Paragraph 27 of Plaintiffs Complaint are legal conclusions to which no response is required. To the extent a response is deemed necessary, the same are denied and proof thereof is demanded. 28. The allegations set forth in Paragraph 28 of Plaintiffs Complaint are legal conclusions to which no response is required. To the extent a response is deemed necessary, the same are denied and proof thereof is demanded. WHEREFORE Defendant Foreman Architects Engineers respectfully requests this Honorable Court dismiss Plaintiffs Complaint with prejudice, award Defendant its attorney fees and costs incurred in the defense of this action, and grant any further relief this Honorable Court deems just and equitable. NEW MATTER 29. Defendant incorporates by reference Paragraphs 1 through 28 of its Answer as if fully set forth at length. 30. All or parts of Plaintiffs Complaint are barred by the applicable statute of limitations. 31. Plaintiffs Complaint, in whole or in part, fails to state a cause of action upon which relief may be granted. 32. All or parts of Plaintiffs Complaint are barred by the doctrines of waiver, estoppel and/or laches. 33. All or parts of Plaintiffs claims are barred by equitable and promissory estoppel. 34. All or parts of Plaintiffs claims are barred by the doctrine of unclean hands. 35. All or parts of Plaintiffs claims are barred by want and failure of consideration and justification. 36. All or parts of Plaintiffs claims are barred or reduced by its failure to mitigate its damages. 37. The damages alleged in Plaintiffs Complaint are the result of the actions and/or omissions of a third party, over which Foreman had no control. WHEREFORE Defendant Foreman Architects Engineers respectfully requests this Honorable Court dismiss Plaintiffs Complaint with prejudice, award Defendant its attorney fees and costs incurred in the defense of this action, and grant any further relief this Honorable Court deems just and equitable. Respectfully subm' ed, atthew M. ioffma PA I. D. N 43949 Jessica R. Quinn-Horgan PA I.D. No. 89124 F. Stephenson Matthes PA I.D. No. 67408 Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Attorneys for (Defendant, Foreman Architects Engineers, Inc. VERIFICATION I, David Foreman, state that I am authorized to sign this Verification on behaff of Foreman ArchAeectss Engineers and that the facts contained in the foregoing Answer and New Matter are true and correct to the beat of my knowledge, Iftrmadon and befief and I understand the statements therein made are made subject to the penalties of 18 Pa.C,S. §4904 relating to unworn falsification to authorities. UT:387399.5 021023122398 CERTIFICATE OF SERVICE AND NOW, this 41h day of August, 2005, I, Dawn T. Heilman, Secretary for the law firm of Tucker Arensberg, P.C., attorneys for Defendant, hereby certify that I have this day served the foregoing Answer and New Matter, by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: John H. Windman, Esquire Christine N. Shultz, Esquire Susanin, Widman & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406-3119 7- Dawn T. Heilman LIT:367294-1 021025-122396 9 (? r? =5\ i r. ? " ?. t ,`. s ? 'l ' .. a J . Y;? ,.:\ J_ John H. Widman Attorney I.D. No. 37166 Christine N. Shultz Attorney I.D. No. 84828 Susanin, Widman, & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 (610) 337-4510 ROMAN MOSAIC AND TILE CO. 2039 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS: P.O. Box 189 525 W. New Castle Street Zelienople, PA 16063, Defendant. Attorneys for Plaintiff Roman Mosaic and Tile Co. COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action - Law No. 05-1412 Plaintiff, Roman Mosaic and Tile Company ("Roman Mosaic" or "Plaintiff") acting by and through its undersigned counsel, hereby responds to Foreman Architects Engineers' New Matter as follows: 29. Plaintiff incorporates by reference paragraphs 1 through 28 of its Complaint as if set forth in full. 30. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the paragraph is denied. 31. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the paragraph is denied. 32. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the paragraph is denied. 33. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the paragraph is denied. 34. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the paragraph is denied. 35. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the paragraph is denied. 36. This paragraph contains conclusions of law to which no response is required, To the extent a response is required, the paragraph is denied. 37. This paragraph contains conclusions of law to which no response is required. To the extent a response is required, the paragraph is denied. WHEREFORE, Plaintiff Roman Mosaic and Tile Company demands that judgment in excess of $40,961.76 be entered in its favor and against Defendant Foreman Architects Engineers, together with applicable interest, costs, attorney's fees and such other and further relief as may be just and proper under the circumstances. Respectfully Submitted, Cui.?r ti l I John H. Widman Christine N. Shultz Susanin, Widman, & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 (610) 337-4510 I, Paul Trevisan, hereby verify that I am the President of Roman Mosaic and Tile Company and that the facts set forth in the foregoing Answer To New Matter are true and correct to the best of my knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities. Date: q• tq .-e-S Paul visan CERTIFICATE OF SERVICE I certify that on this lyo>day of August, 2005, 1 caused true and correct copies of the foregoing Plaintiffs Answer To Defendant Foreman Architects Engineers' New Matter to be served on the following counsel via U.S. mail: Matthew M. Hoffman Jessica R. Quinn-Horgan F. Stephenson Matthes Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566 - 1212 Date: ?? Jqf 05 r/ Christine N. Shultz, Esq. O ? U1 r` ,. ? ,.. ? xn c? N _ N _? W N T n ? =n ? ?__] ?-{ t_-ci i? n Jan `-? John H. Widman Attorney I.D. No. 37166 Christine N. Shultz Attorney I.D. No. 84828 Susanin, Widman & Brennan, P.C. Suite 240, Executive Terrace 455 South Gulph Road King of Prussia, PA 19406 (610) 337-4510 ROMAN MOSAIC AND TILE CO. 2039 Mountain Road Manheim, PA 17545, Plaintiff, V. FOREMAN ARCHITECTS ENGINEERS: P.O. Box 189 525 W. New Castle Street Zelienople, PA 16063, Defendant. Attorneys for Plaintiff Roman Mosaic COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action - Law No. 05-1412 PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please enter Plaintiff's voluntary discontinuance of the above-captioned action pursuant to Pennsylvania Rule of Civil Procedure 229. Date: ?. 4 ? Lristfinee N. Shultz, Esq. y . CERTIFICATE OF SERVICE I hereby certify that on this date, I served a true and correct copy of the foregoing document on counsel of record in this action, via first class United States Mail, postage pre-paid, addressed as follows: Matthew M. Hoffman, Esq. Jessica R. Quinn-Horgan, Esq. F. Stephenson Matthes Tucker Arnsberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Date: q /C4 Christine N. Shultz, Esq. ?{7 i 4.A? ??y ?_ v CID