The URL can be used to link to this page

Home My WebLink About05-3569David W. Francis, Esquire Attorney I.D. No. 53718 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff ENGINEER V. Plaintiff BINK PARTNERSHIP, 'NC- Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW n JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the set forth against court your defenses or objections to the claims 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 by the P aintiff.cYoou may lose money or property orlother rights important to YOU or relief plaint or for any other claim requested YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU OFFICE SET FORTH BELOW TOO FIND OUT WHERE YOU CAN GE O LEGAL HELP. THE CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 550174.1 AA V USTED HA SIDE DEMANDADOIA EN CORTE. Si usted desea defenderse de 'as debe tomar accion dentro de 10s demandas que se Presentan mas adelante en las siguientes pagin t Aviso radicando icando en la Corte por proximos veinte (20) dias despues de la notificacion de esa Dem and personalmente o por medio de un abogado Una comparecencia escrita y 'ecciones a, las demandas presentadas aqui en contra suya. Se le escrito sus defensas de, y obJ uier ede dvierte d q si uste sted falla d uatllqui r suma de d hero reclamada en la demanda o cualq er o e peclarn r sin ust sted y un fallo por rtarrtes para av o remedio stedo por el d nerd o propiedad u otros derechos impo or la Corte sin mas sin mas avi so adicional. Ustd puede perder usted. OGADO ENTE. 9I USTED NOT ENE UN AB GADO OTNO UEDE PAGARLE A INMEDIATAM UNO, LLAME OISTENCIA LEGAL. OFICINA PARR AVERIGUAR DONDE PUED ENCONTRAR S CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 nosa2A David W. Francis, Esquire Attorney I.D. No. 53718 F.HOADS & SINON LLP One South Market square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff BRUCE ENSOR STRUCTURAL ENGINEER Plaintiff V. BINK PARTNERSHIP, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW n I NO. ?r -?CI_9 l'cvcl? JURY TRIAL DEMANDED COMPLAINT 1. Bruce Ensor Structural Engineer (`BESE") is a sole proprietorship with offices located at 500 North Front Street, Wormleysburg, Pennsylvania 17043. BESE is owned and operated by Bruce Ensor, P.E. 2 Bink Partnership, Inc. (Bink") is an architectural firm with offices located at 133 South 3fd street, Camp Hill, Pennsylvania 17011. 3 Bink served as the architect of record for the calvary United Methodist Church Phase I and Phase II Project ("the Project") located at 4700 Locust Lane, Harrisburg, Pennsylvania 17109. 4. On or about October 12, 2004, BESE entered into an agreement with Bink by ices in connection which BESE was to provide certain professional structural engineering serv is attached hereto as Exhibit A and incorporated by with the project. A copy of the contract reference. 570563.1 5. The contract provided that BESE would be paid by Bink as follows a A lump sum payment of $41,750; b. An additional professional fee of 1.25% on any increase in the construction budget for the project; C. An additional professional fee for Value Engineering Services provided; d. An additional professional fee for attendance at more than four (4) project meetings; C. An additional professional fee for additional site visits; f. Additional services provided; and g. Reimbursable expenses. 6. BESE performed its obligations under the contract, including the performance of additional work as set forth above, and properly invoiced Bink for services provided. The total value of the services provided as of May 21, 2005 was $17,035.39. A copy of the invoices as of may 21, 2005 are attached hereto as Exhibit B and incorporated by reference. 7. The contract required Bink to issue payment to BESE within thirty days after receipt of an invoice. 8. Bink has not paid BESE in accordance with the provisions of the contract. 9. BESE is entitled to payment in the amount of $17,035.39. 10. Despite repeated demands and repeated promises to pay, Bink continues to refuse to issue payment to BESE for any amounts presently due. 11. Bink's conduct is in bad faith. 2 McNEES WALLACE & NURICK LLC Diane M. Tokarsky, Esquire I.D. No. 44369 Susan V. Metcalfe, Esquire I.D. No. 85703 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Partnership, Inc. BRUCE ENSOR STRUCTURAL IN THE COURT OF COMMON PLEAS ENGINEER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 05-3569 CIVIL TERM V. BINK PARTNERSHIP, INC., Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Diane M. Tokarsky and Susan V. Metcalfe of McNees Wallace & Nurick LLC as counsel on behalf of Defendant Bink Partnership, Inc. in the above-referenced matter. Dated: August ?5' , 2005 McNEES WALLACE & NU/RICK LLC By L y, 1 Diane M. Tokarsky, Esquire I.D. No. 44369 Susan V. Metcalfe, Esquire I.D. No. 85703 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Partnership, Inc. CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served via United States first-class mail upon the following: David W. Francis, Esquire RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 McNEES WALLACE & NURICK LLC By AAAjA, V, &djgj lu'Diane M. Tokarsky, Esquire Attorney I.D. No. 44369 Susan V. Metcalfe, Esquire Attorney I.D. No. 85703 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Partnership, Inc. Dated: August _? , 2005 2 P -a xi G s 2. cn 1:: co lok C. i .p c1'1 C4 p W 12. As a result of Bink's refusal to issue payment to BESE, BESE has been required to hire counsel to pursue its monies. 13. The contract between Bink and BESE specifically provides that Bink is responsible for all cost of collection and reasonable attorneys' fees caused by Bink's failure to issue payment. 14. BESE is also entitled to collect monies pursuant to the provisions of the Contractor and Subcontractor Payment Act, 73 P.S. §501, et seq. (1994) ("the Act"). 15. BESE seeks judgment in its favor in the amount of $17,035.39, together with interest, cost of collection, penalties and legal fees. COUNT I-BREACH OF CONTRACT 16. BESE incorporates all of the above-referenced paragraphs as if fully set forth here at length. 17. Bink's failure to issue payment to BESE as set forth above is a material breach of the contract between Bink and BESE. 18. BESE is entitled to be paid for the work he performed in an amount in excess of $17,035.39 together with interest, cost of collection and legal fees. 19. BESE has satisfied all conditions precedent to bring this claim. WHEREFORE, Bruce Ensor Structural Engineer demands judgment in its favor and against Bink Partnership, Inc. in the amount of $17,035.39, together with interest, costs of collection, legal fees and any other remedy as provided by law. 3 20. BESE incorporates all of the above-referenced paragraphs as if fully set forth here at length. 21. BESE is a subcontractor for purposes of the Contractor and Subcontractor payment Act, 73 P.S. §502 (1994). 22. Bink's failure to pay BESE is in bad faith. 23. Pursuant to the provisions of the Act, BESE is entitled to recover the following: a. Interest at the rate of one percent (1%) per month. 73 P.S. §507(d); b. A penalty equal to one percent (1 0) per month of the amount that is wrongfully withheld. 73 P.S. §512(a); and c. A reasonable legal fee together with expenses. 73 P.S. §512(b). 4 WHEREFORE, Bruce Ensor Structural Engineer demands judgment in its favor and against Bink Partnership, Inc. in an amount equal to one percent (10/,,) per month withheld, a penalty of one percent (1 %) per month the money is wrongfully withheld, and legal fees and costs, together with such other relief as provided by law. Respectfully submitted, RHOADS & SINON LLP By: ' David W. Francis Attorney I.D. No. 53718 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 Phone: (717) 233-5731 Fax: (717) 231-6600 Email: dfrancis@rhoads-sinon.com Attorneys for Bruce Ensor Structural Engineer Date: July 13, 2005 Bink Partnership, Inc. I _ October 12, 2004 September 9, 2004 Bruce Ensor Structural Engineer 500 N. Front Street, Wormlcysburg, Pa. 17043 V:717-737-1559, C:717-877-2521, F:717-737-1320 Email: brucc(q),bestructural.com www.bestru ctu ral.com Bink Partnership Inc. Attention: Rued Hoffman 133 South 32nd Street Camp Bill, Pennsylvania 17011 RE: Additions and Renovations to Calvary United Methodist Church - Phase I and II 4700 Locust Lane, Harrisburg, PA 17109 Structural Engineering Services LETTER AGREEMENT Dear Rood: In response to the request for professional structural engineering services for the above referenced project, Bruce Frtsor Structural Engincor hercut noted as 13ESE is pleased to famish you with this Letter Agreement. SCOPE OF WORK Ilascd on the meeting on August 25, 2004 at your office, telephone and email correspondence, the Request for Proposal dated Septetnbcr 30, 2003, herein referred to as RFP and preliminary floor and roof' plans, please consider this our proposal to provide professional Structural Engineering services to design the referenced structure. 'I1te RFP is included by reference and the scope is clarified below by the addition of Phase II to the requirements of the RFP. We have included in our proposal: 1) Site visit to field verify the condition and layout of existing structural members. 2) Structural Engineering Services. 3) Construction documents (drawings and specifications). 4) Shop Drawing Review. The following summarizes our understanding of the scope of Services: Calvary United Methodist Church, herein noted as "Owner", would like to [Hake additions and renovations to the existing facility at the above referenced address. Bink Partnership Inc., herein noted as "Client", has been retained by the Owner. BESfi will provide Structural P;ngineering Services outlined below to accomplish this goal. Field verification of the existing condition and layout of the existing structural members will be visual in nature and will not include demolition of existing construction to gain access. Material testing is not a part of this scope of service. Field verification shall not relieve the general contractor of verification of existing conditions prior to proceeding with his work. BrS??.. eLe:OT SO ST unc ,.l 02E1LELLIL Bink Partnership, Inc. 2 October 12, 20(14 IIE$E will perform structural analysis and engineered design for the new construction as well as the existing structure that is affected by the renovation and addition. Construction documents will be prepared on Clients background sheets based on the Construction Document Staandards listed in the RI.-I, We will modify Client's electronic copies of relevant standard specification sections for the project and return them to your ogee for inclusion in the project specifications. Structural Engineering Services shall be provided for customary structures identified at this stage of the project development, but shall exclude special structures or fi>undaiions not identified in this agreement, Site related structural work is excluded from our work except retaining walls that arc adjacent to the structure. A Geotechnical Engineer will be retained by the Owner and a soil report will be provided to BESE early enough to prevent redesign of the foundation systems. The proposed addition would require continuous reinforced concrete wall footings supporting reinforced masonry or concrete walls. Reinforced spread footings are anticipated for column loaded footings. We will provide assistance in developing a scope of service for the Gcotechnical Engineering if requested. A Certificate of Professional Liability Insurance will be issued to Client directly from our insurance Carrier by US Mail. The coverage is for one million dollars per occurrence and one million dollars per year. The design shall conform to the 1996 BOCA National Building Code as required in the RFP. Construction Document sheet size is 30x42. Floor and Roof Plnnc F,,, sheet. nt ........ SCHEDULE Architectural CAD format base drawings for both Phases I & TI shall be available on September 15, 2004 to continue the design and production of the contract documents. The anticipated design schedule for the Project documents will requite construction documents be Contractor, Miller &i Norford,lInc. tob cub-eonlr2004. aetorsLshall follow.e Co. t ectim tes Burin ennui development shall be prepared by Miller & Norford, Inc. R design The anticipated Construction Schedule is as follows: Foundation Placement: December 2004 to April 2005 Superstructure Erection: April 2005 to December 2005 PROFESSIONAL FEES The Construction Budget is set at Three Million Eight Hundred work in both Phase I & 11. Thousand Dollars ($3,S00.000.0()) for the . The Professional Services identified in this agreement shall be provided on a lum S urn basis 0f Forty One Thousand Seven llundred Nifty Dollars ($41,'750.00). P , um basis of If the Construction Budget is increased the Professional Fee will be increased at the raft of 1.25"/". l Ch ' 1 T d D2eue4LTL eDDtTT 90 ST unr Bink Partnership, Inc. -3 October 12, 2004 Our services do not include Value Engineering after a design has been engineered and provided on the drawings. If Value Engineering is required it will be billed as an Additional Service baud on the terms below. We shall provide four (4) proiect Meetings during design, Each additional design meeting required shall be billed at $280.00 per meeting with a three hour maximum meeting length (exclusive reimbursable direct expenses). We shall provide additional sit(; visits during construction at $280.00 per visit. BESE will not exceed this estimate without prior CLIENT authorization. Upon receipt of prior Client approval Additional Services will be invoiced'exclusivc of reimbursable expenses: Structural Engineering; $55.00 per hour, Auto CAI): $60.00 per hour GFNERAI, CONDITIONS Fees and Compensation Services performed on an "Hourly Basis" shall be billed in accord with the current hourly hates quoted above, Lump Sum, Per Unit Fees and/or "Hourly Not to Exceed" Pecs may be increased each January by a percentage of up to five percent (5"/0) or the CPI-W (U.S. Labor Consumer Price Indcx-Waihington,), which ever is greater. In the event the client request,- the performance of service- not specifically described herein, the client agrees to compensate BESE in accordance with the current Hourly Rates. It is understood and agreed to by both parties that the Hourly Rates arc subject to annual adjustment in January of each calendar year. If the services are to be provided on an "Hourly lump sum` or buget dot to ti exceed" in this oposal is an eimate only and BESE hourly rates are shown above. should not be regarded as a Invoices for services performed will be rendered on a monthly basis based on a percentage completion. Payment is requested upon receipt and due within thirty (30) days after invoice date. BESE reserves the right to make a finance charge of 1 1 /2 percent per month on any unpaid balance if not paid within thirty days. If BESE does not receive notification from you, with verbal or written, within twenty (20) days of the date ofour invoice, it will be construed to be correct. In addition all payments made on your account should specify the invoice number being paid. Ifpayments are received that do not indicate the invoice being paid BESE reserves the right to apply those payments against unpaid invoices at is discretion. Reimbursable Expenses: The Client shall pay BESE for all expenses necessarily incurred by BESE' in connection with the performance of professional services for the Client. Such expenses include, but are not limited to, the following: transportation expenses, meals and lodging in connection with travel; long distance telephone charges; data processing expenses; photographic expenses; filing and inspection fees paid by BESE in behalf of the Client to appropriate regulatory agencies; additional insurance coverage requested by the Client; overtone required by the Client; delivery shipping, courier expenses, drawings and document reproduction or copying expenses; renderings and models; the cost of obtaining bids of proposal from other contractors or consultants when done at the request of the Client and other out-of= pocket expenses incidental to performance of BESE services. Invoicing for reimbursable expenses may occur separately from other invoices for services rendered. Collection Costs and Attorney Fees; Client shall be responsible for and shall pay all cost of collection and reasonable attorney fees incurred by BESE in the collection of moneys owned to BESP. by the Client under this Agreement. These costs of collection and attorney fees may be awarded against the Client and in favor of BESE by an arbitrator in an arbitration proceeding and by a court in an action of law. Clien BESE -?-- E'd 02CILELLTL eLE:01 90 21 unr Bink Partnership, Inc. -4- October 12, 2(X)4 Proprietary Rights: Client acknowledges that BESE has a proprietary right in all work produced for Client, and that documents representing such work product, including drawings, specifications and reports, shall not be furnished to third persons unless written authorisation is first obtained from BESE or unless by clear implication from the circumstances of the work produce such work product was intended by the Client and BEST? to be furnished to third persons. Assignment: Neither BESE nor the Client shall assign, lease or transler any rights or interest arising pursuant to this Agreement without the written consent of the other. 'I'hc foregoing, not withstanding, BESE may employ independent consultants, associates, and subcontractors as it may be deem necessary in order to perform BESE Services which are the subject of the Agreement. Additionally, BESE may assign its rights to payment or Ices as BESE deems appropriate. lndeninif ication: The Client shall indemnify BESE against injury to or death of any employee or agent of BESE (including consultants retained by BESE for the purpose of fulfilling the terms of this Agreement) while on the Client's property or arising out of any act of omission of the Client, or its employees or agents, for which the Client would have been liable if sued directly by such employee or agent or his personal representative. CLIENT RFSPONSIBILITIFS Client agrees to furnish BESR with full information as to project requirements, including any special or extraordinary considerations for the project, or special services needed. Client agrees to provide electronic copies of progress drawings on a weekly basis to reduce the effort required by BESE in cutting sections and preparing details. This Letter Agreement represents the entire understanding between the Client and BESE• and may be amended only in writing and signed by both parties. Please indicate your acceptance of and agreement with this Letter Agreement by signing two copies in the space provided below and each page and returning them for our signature. Execution of this Agreement will constitute Notice to Proceed with the scope of services outlined herein. Thank you for this opportunity to assist you. We look forward to a successful project. Accepted By: Approved For: Rink Partnership, Inc. Bruce Ensor Structural ngincnr Harrison Bink, AIA Bruce C. Ensor, P.P.,, 5.1;.. Clicrit? BLSEr-"? z'd 02ETLELLIL eDO:TT SO ST unC Page 1 of 1 Bruce Ensor Structural Engineer wwtn .bestructural.com PAST l1? Name Bink Partnership, Inc. (Attn.: Sondra Plesic Address 133 South 32nd Street Pa ZIP 17011 City Camp Hill Fax: 717-737-0442 Phone 717-737-0402 E-mail __ ne arlnns to Calvary United E Misc Initial Date: 01125105 Statement Date: 03102105 Statement Date: 04108105 Statement Date: 05103105 5o0 North Front Street, Wormleysburg, PA 17043 Page 1 of 1 ki- Bruce Ensor Structural Engineer www.bestructural.com INVOICE Customer Name Bink Partnership, Inc. ( Attn. Address 133 South 32nd Street City Camp Hill Phone 717-737-0402 E-mail Sondra Plesic) Pa ZIP 17011 Fax: 717-737-0442 Misc Date 04129/05 Project: Additions and Renovations to Calve United Methodist Church Date Percent Description Fee TOTAL Com iete 4/29/2005 Increase In Fee due to Bid Amount from 3.8 million to 4,625,466.00 Based on Calvary UM Church Estimate b Miller and Norford 4/22/05 90.00% Net Fee Increase = $625466.00 x1.25% based on Letter Agreement $ 10,318.53 $ 9,286.68 Total Due This Invoice $ 9,286.66 500 North Front Street, Wormleysburg, PA 17043 Voice:717-737-1559 Fax: 717-737-1320 email: brute@bestructural.com _ Bruce Ensor Structural Engineer ki - mrww.bestruL;LUI .com INVOICE EE Bruce Ensor Structural Engineer www.bestructural.com INVOICE ?uawwe r Mise Name Bink Partnership, Inc. (Attn.: Sondra Plesic) Address 133 South 32nd Street Date 05/18/05 City Camp Hill Pa ZIP 17011 Phone 717-737-0402 Fax: 717-737-0442 E-mail Project: Additions and Renovations to Calvary United Methodist Church Date Hours Description Unit Price TOTAL 4/29/2005 5/2/2005 5!3/2005 1 4 4 Meeting with Harrison and Reed Engineer Review Changes for Fee Estimate ACAD Tech Review Chan es for Fee Estimate $ 280.00 $ 85.00 $ 80.00 $ 280.00 $ 340.00 $ 240.00 TOTAL $ 860.00 500 North Front Street, Wormleysburg, PA 17043 Voice: 117-737-1559 Fax: 717-737-1320 email: bruce0bestructural_mm VERIFICATION Bruce C. Ensor, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that he is the owner of Bruce Ensor Structural Engineer, that he makes this verification by its authority and that the facts set forth in the Complaint are true and correct to the best of his knowledge, information and belief. 711 z /as Date nice C. Ensor z•d 0099TE26:01 :woa-i CTs:to soot-2T--)nf r: cn TI r_ r - ? T7 r ? - -ii rv ? n a C,.i David W. Francis, Esquire Attorney I.D. No. 53718 RHOADS & SINON LLP One South Market Square, 12th Floor Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. TO THE PROTHONOTARY: Please replace the attached original verification to the Complaint in this action filed on July 14, 2005. Respectfully submitted, )S & SINON LLP By: H David W. Francis ZV?? One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 Phone: (717) 233-5731 Fax: (717) 231-6600 Email: dfrancis@rhoads-sinon.com Attomeyys for Bruce Ensor Structural Engineer July 21, 2005 571514.1 VERIFICATION Bruce C. Ensor, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities, that he is the owner of Bruce Ensor Structural Engineer, that he makes this verification by its authority and that the facts set forth in the Complaint are true and correct to the best of his knowledge, information and belief. 7 ?z s A ? -- ruce C. Ensor Date f) ?- Q _- ul f" _ 1V N U? W 0 r' 1;7 ?i it McNEES WALLACE & NURICK LLC Diane M. Tokarsky, Esquire I.D. No. 44369 Susan V. Metcalfe, Esquire I.D. No. 85703 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Architectural Partnership, Inc. BRUCE ENSOR STRUCTURAL IN THE COURT OF COMMON PLEAS ENGINEER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 05-3569 CIVIL TERM V. BINK PARTNERSHIP, INC., : CIVIL ACTION - LAW Defendant : JURY TRIAL DEMANDED NOTICE TO PLEAD TO: BRUCE ENSOR STRUCTURAL ENGINEER, Plaintiff, and its attorney David W. Francis, Esquire You are hereby notified to file a written response to the within New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. McNEES WALLACE & NURICK LLC By r' Diane M. Tokarsky, Esquire Attorney I.D. No. 44369 Susan V. Metcalfe, Esquire Attorney I.D. No. 85703 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Partnership, Inc. Dated: August _1_5' , 2005 McNEES WALLACE & NURICK LLC Diane M. Tokarsky, Esquire I.D. No. 44369 Susan V. Metcalfe, Esquire I.D. No. 85703 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Partnership, Inc. BRUCE ENSOR STRUCTURAL IN THE COURT OF COMMON PLEAS ENGINEER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 05-3569 CIVIL TERM V. BINK PARTNERSHIP, INC., : CIVIL ACTION - LAW Defendant : JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM Defendant, Bink Partnership, Inc. ('Kink"), by and through its attorneys, McNees Wallace & Nurick LLC, for its Answer with New Matter and Counterclaim, states as follows: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. Admitted in part and denied in part. It is admitted that on or about October 12, 2004, BESE entered into an agreement ("Agreement') with Bink to provide professional structural engineering services in connection with the project. It is admitted that the document attached to the Complaint as Exhibit A is a copy of the contract as entered into on October 12, 2004. However, Bink and BESE modified the terms of the contract as they are set forth in Exhibit A, and BESE agreed that it would not be entitled to payment from Bink until Bink received payment from the owner of the project, Calvary United Methodist Church ("the Owner"). 5. Denied. The document attached to the Complaint as Exhibit A is a writing that speaks for itself, and Plaintiffs characterization of it is therefore denied. 6. Denied. It is denied that BESE performed its obligations under the Agreement. On the contrary, BESE failed to substantially complete construction documents by December 15, 2004, failed to design customary structures using commonly available materials and configurations, and failed to adequately perform structural engineering with the proposed budget. It is further denied that the value of BESE's services was $17,035.39, and it is denied that BESE is entitled to such sums in addition to the amounts already paid by Bink to BESE. The documents attached to the Complaint as Exhibit B are writings that speak for themselves, and Plaintiffs characterization of them is therefore denied. 7. Denied. BESE agreed that it would not be entitled to payment from Bink until Bink received payment from the Owner. 8. Denied. On the contrary, Bink has paid BESE $1,439.41 more than the total amount BESE was due under the contract. 9. Denied. Bink's responses to paragraphs 6-8, above, are incorporated herein by reference. 10. Denied. Bink has made no promises to pay BESE any money beyond the sums verified as due to BESE. 2 11. Denied. The allegations of paragraph 11 constitute legal conclusions to which no response is required and they are therefore denied. 12. Denied. BESE is not entitled to collect further sums from Bink. Furthermore, BESE's hiring of counsel and pursuit of this lawsuit is frivolous and unreasonable. 13. Denied. The document attached to the Complaint as Exhibit A is a writing that speaks for itself, and Plaintiffs characterization of it is therefore denied. Bink's response to paragraph 12, above, is incorporated herein by reference. By way of further answer, Bink denies that it wrongfully refused to issue payment to BESE. 14. Denied. The allegations of paragraph 14 constitute legal conclusions to which no response is required and they are therefore denied. By way of further answer, BESE is not entitled to further payment by Bink. Moreover, BESE agreed that it would not be entitled to payment until Bink received payment from the Owner; and, upon receiving the invoices in question, Bink timely notified BESE that it disputed BESE's entitlement to further payment. 15. Denied. It is denied that BESE is entitled to further payment in addition to the sums already paid by Bink. Count I - Breach of Contract 16. Paragraphs 1-15 of Bink's Answer with New Matter and Counterclaim, above, are incorporated herein by reference as if set forth in full. 17. Denied. The allegations of paragraph 17 constitute legal conclusions to which no response is required and they are therefore denied. By way of further answer, Bink fulfilled all of its obligations under the Agreement. 3 18. Denied. The allegations of paragraph 18 constitute legal conclusions to which no response is required and they are therefore denied. By way of further answer, BESE failed to perform its obligations under the Agreement, and it is therefore not entitled to further payment from Bink. 19. Denied. The allegations of paragraph 19 constitute legal conclusions to which no response is required and they are therefore denied. By way of further answer, Bink's responses to paragraphs 17 and 18, above, are incorporated herein by reference. WHEREFORE, Defendant Bink Partnership, Inc. requests that judgment be entered in its favor and against Plaintiff, together with costs of suit and such other relief as this Court deems just and appropriate. COUNT II - CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT 20. Paragraphs 1-19 of Bink's Answer with New Matter and Counterclaim, above, are incorporated herein by reference as if set forth in full. 21. Denied. The allegations of paragraph 21 constitute legal conclusions to which no response is required and they are therefore denied. 22. Denied. The allegations of paragraph 22 constitute legal conclusions to which no response is required and they are therefore denied. By way of further answer, Bink's responses to paragraphs 6-8, above, are incorporated herein by reference. 23. Denied. The allegations of paragraph 23 constitute legal conclusions to which no response is required and they are therefore denied. By way of further answer, it is denied that BESE is entitled to additional money under the Agreement. It is further denied that any penalties, interest, or legal fees are due to BESE. On the contrary, the 4 Contractor and Subcontractor Payment Act provides that legal fees shall be awarded to the prevailing party. BESE's pursuit of this lawsuit is frivolous and unreasonable, and Bink, not BESE, is therefore entitled to recover its legal fees. WHEREFORE, Defendant Bink Partnership, Inc. requests that judgment be entered in its favor and against Plaintiff, together with its legal fees, expenses, costs of suit, and such other relief as this Court deems just and appropriate. NEW MATTER 24. Paragraphs 1-23 of Bink's Answer with New Matter and Counterclaim, above, are incorporated herein by reference as if set forth in full. 25. Plaintiffs Complaint fails to state a claim upon which relief can be granted. 26. Plaintiffs claims are barred by the doctrine of accord and satisfaction. 27. Bink at all times fulfilled its obligations under the Agreement. 28. Pursuant to the Agreement, BESE was obligated to substantially complete the construction documents by December 15, 2004. 29. BESE breached the Agreement by failing to substantially complete construction documents by December 15, 2004. 30. As of December 15, 2004, the construction documents prepared by BESE were substantially incomplete; they remain only eighty percent (80%a) complete. 31. As of December 15, 2004, Bink owed BESE eighty percent (80%) of the $41,750.00 lump sum fee specified in the Agreement, for a total of $33,400.00. 32. As of April 16, 2004, Bink has paid BESE $34,839.41. 33. BESE did not perform further work to complete the construction documents. 5 34. Bink's payment of $34,839.41 represented an overpayment to BESE in the amount of $1,439.41. 35. BESE further breached the Agreement by failing to design customary structures using commonly available materials and configurations, and failing to design the project so that it could be constructed within the proposed budget. 36. The alleged increase in the construction budget from $3,800,000.00 to $4,625,466.00 was a result of BESE's failure to provide commercially reasonable structural engineering services utilizing customary structures and commercially available materials and configurations. 37. BESE is not entitled to a fee increase based upon an increased estimated budget, because such estimate was wrongfully inflated due to BESE's failure to fulfill its obligations under the Agreement. 38. Bink did not request that BESE perform value engineering services. On the contrary, because BESE failed to perform structural engineering services in a commercially reasonable manner, Bink worked with BESE to give it the opportunity to modify the construction documents in order to rectify the problems. Such work does not constitute value engineering services but rather is part of the basic structural engineering services under the Agreement, and BESE is therefore not entitled to additional payment for this work. 39. BESE is not entitled to any interest or penalties on the sums it has claimed are allegedly due and owing because: a. BESE is not entitled to further sums under the Agreement; 6 b. BESE agreed to a pay-when-paid arrangement, whereby BESE would not receive payment from Bink until Bink was paid by the Owner; and, c. Bink timely notified BESE that its invoices for additional payment were incorrect. 40. BESE's failure to timely complete its work under the Agreement delayed the project by approximately six months. 41. The six-month delay substantially increased construction costs on the project due to industry-wide inflation. 42. BESE's failure to timely complete its work under the Agreement in a commercially reasonable manner resulted in substantial cost overruns, forcing Bink to engage other structural engineering professionals to complete and correct BESE's work, at an additional cost to Bink of $7,500.00. 43. In the event that BESE is found to be entitled to additional payment under the Agreement, Bink is entitled to a set-off for additional costs Bink incurred as a result of BESE's untimely and commercially unreasonable work. 44. In the event that Bink prevails in this action, Bink is entitled to recover its legal fees and expenses under the Contractor and Subcontractor Payment Act, 73 P.S. § 512(b), which provides that "notwithstanding any agreement to the contrary, the substantially prevailing party in any proceeding to recover any payment under this act shall be awarded a reasonable attorney fee in an amount to be determined by the court or arbitrator, together with expenses." 7 WHEREFORE, Defendant Bink Partnership, Inc. requests that judgment be entered in its favor and against Plaintiff, together with its legal fees, expenses, costs of suit, and such other relief as this Court deems just and appropriate. COUNTERCLAIM - BREACH OF CONTRACT 45. Paragraphs 1-44 of Bink's Answer with New Matter and Counterclaim, above, are incorporated herein by reference as if set forth in full. 46. Bink at all times fulfilled its obligations under the Agreement. 47. BESE breached the Agreement by failing to substantially complete construction documents by December 15, 2004, failing to design customary structures using commonly available materials and configurations, and failing to adequately perform structural engineering with the proposed budget. 48. As a result of BESE's breaches, Bink has incurred substantial increased costs including: a. Overpayment to BESE in the amount of $1,439.41; b. Payment to other structural engineering professionals to complete and correct BESE's work, at an additional cost to Bink of $7,500.00; C. Substantial increased construction costs due to the delay caused by BESE's failure to timely compete its work under the Agreement. 49. The six-month delay substantially increased construction costs on the project due to industry-wide inflation. 50. In the event that Bink prevails in this action, Bink is entitled to recover its legal fees and expenses under the Contractor and Subcontractor Payment Act, 73 P.S. § 512(b), which provides that "notwithstanding any agreement to the contrary, the 8 substantially prevailing party in any proceeding to recover any payment under this act shall be awarded a reasonable attorney fee in an amount to be determined by the court or arbitrator, together with expenses." WHEREFORE, Defendant Bink Partnership, Inc. requests that judgment be entered in its favor and against Plaintiff, in an amount less than $35,000.00, together with its legal fees, expenses, costs of suit, and such other relief as this Court deems just and appropriate. Respectfully submitted, McNEES WALLACE & NURICK LLC BY L V/ 6A4 Diane M. Tokars y Attorney I.D. No. 44369 Susan V. Metcalfe Attorney I.D. No. 85703 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Dated: August 2005 9 Subject to the penalties of 18 Pa. G.S.A. §4904 relating to unsworn falsification to authorities, I hereby certify that I am the President of Bink Partnership, Inc., that I am authorized to make this verification on its behalf, and that the facts set forth in the foregoing document are true and correct to the best of my information and belief. Harrison F. in Dated: August a, 2005 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served via United States first-class mail upon the following: David W. Francis, Esquire RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 McNEES WALLACE & NURICK LLC By LIO t Lak - Mane M. Toka ky, Esquire Attorney I.D. No. 44369 Susan V. Metcalfe, Esquire Attorney I.D. No. 85703 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Architectural Partnership, Inc. Dated: August ('J, 2005 o c-> r, -„ "' r_ ?,? .) Y Q? `-? C? '? =r_ -;j c-, .? ?rn _., ', r = -,? 4s, cn w David W. Francis, Esquire Attorney I.D. No. 53718 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 JURY TRIAL DEMANDED NOTICE TO PLEAD TO: BINK PARTNERSHIP, INC., Defendant, and its attorney Diane M. Tokarsky, Esquire You are hereby notified to file a written response to the within Plaintiffs Answer to New Matter and Counterclaim and New Matter to Counterclaim within twenty (20) days from service hereof or a judgment maybe entered against you. Respectfully submitted, RHOADS."INON LLP Date: C7 By: Davi W. F'r Esquire One South Market Square P. O. Box 1.146 Harrisburg, PA 17108-1146 Phone: (717) 233-5731 Fax: (717) 231-6600 Email: dfr:mcis@rhoads-sinon.com Attorneys for Plaintiff Bruce Ensor Structural Engineer 576674.1 David W. Francis, Esquire Attorney I.D. No. 53718 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 JURY TRIAL DEMANDED BRUCE ENSOR STRUCTURAL ENGINEER'S ANSWER TO NEW MATTER AND COUNTERCLAIM AND NEW MATTER TO COUNTERCLAIM Answer To New Matter Bruce Ensor Structural Engineer hereby responds to the Answer of Bink Partnership, Inc. BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. as follows: 24. Bruce Ensor Structural Engineer (`BESE") hereby incorporates paragraphs I through 23 of its Complaint as if fully set forth here at length. 25. Denied as a conclusion of law to which no response is required. 26. Denied as a conclusion of law to which no response is required. 27. Denied as a conclusion of law to which no response is required. 28. Denied as stated. It is admitted only that the contract between Bink and BESE provided an anticipated design schedule for completion of construction documents by 575346.1 December 15, 2004. It is denied that Bink adhered to this schedule. During the course of the project Bink repeatedly pushed back this date. Further, BESE needed information from Bink in order to finish its work; however Bink failed to provide much of the information in time for BESE to meet the December 15, 2004 date. By way of example:, Bink provided needed information to BESE after December 15, 2004. Bink never raised this claim of delay during the project. Accordingly, it is denied that BESE has any liability with respect to the schedule for completion of the work. 29. Denied. BESE incorporates its averments in paragraph 28 as if fully set forth at length. 30. Denied as stated. BESE incorporates its averments in paragraph 28 as if fully set forth at length. By way of additional answer, the date of December 15, 2004 is irrelevant to BESE's claim for the reasons set for the above. BESE completed 90% of its contract value and billed Bink for that work. Bink did not object to BESE's billing of 90% of the project. Bink is responsible for paying BESE in full. 31. Denied as stated. BESE incorporates the averments set forth in paragraphs 28 and 30 as if fully set forth at length. 32. Admitted. 33. Denied as stated. Bink's averment in paragraph 33 is vague and ambiguous because it fails to identify any date. By way of additional answer BESE states that Bink failed to honor the provisions of its contract by not paying BESE for work even after approving the amount of BESE's billings. 2 34. Denied. BESE incorporates its answers to paragraphs 28 and 30 as if fully set forth here at length. 35. Denied. Bink's averment as to the defects in BESE's design is vague and ambiguous because it specifically fails to identify the failures in BESE's design. By way of additional answer, BESE states that its design was accepted and/or approved by Bink during the period of contract work by BESE. Bink never raised this claim until its pleadings in this matter. By way of further answer, it is denied that BESE failed to design the project so that it could be constructed in accordance with the proposed budget. Any and all cost issues were under the control of Bink and/or others who were not controlled by BESE. By way of additional answer, all of BESE's design suggestions were accepted and/or approved by Bink. 36. Denied. BESE incorporates its answers to paragraphs 28, 30 and 35 as if fully set forth at length. Bink never notified BESE that it was responsible for the $825,466 increase in project price. Strict proof of this averment is demanded at the time of trial. 37. Denied. BESE incorporates its answers to paragraphs 28, 30, 35 and 36 as if fully set forth here at length. BESE is entitled to be paid for all work as set forth in the invoices attached to the Complaint. 38. Denied. Bink did direct BESE to provide additional engineering services. BESE incorporates its answers to paragraphs 28, 20, 35 and 36 as if fully set forth here at length. By way of additional answer, BESE states that it is entitled to be paid for all work as set forth in its invoices. Bink did not object to the billings set forth in BESE's invoices. BESE is entitled to payment in full. 39. Denied. BESE is entitled to payment of interest and penalties. Bink's conduct in failing to pay BESE and in raising new defenses for the very first time in its pleading is outrageous and in bad faith. a. BESE is entitled to payment under the terms of its agreement. Further, Bink did not object to BESE's invoices. b. BESE never agreed to a modification of its agreement to a "pay when paid" contract. C. Denied. Bink approved BESE's applications for payment and promised payment would be made. 40. Denied. BESE incorporates its answers to paragraphs 28, 20, 35 and 36 as if fully set forth here at length. 41. Denied. Upon information and belief the cost ofthe project increased because of changes in design originated and/or approved by Bink. By way of additional answer, BESE did not delay this project by six months. 42. Denied. BESE incorporates its answers to paragraphs 28, 20, 35, 36 and 41 as if fully set forth here at length. Bink materially breached its contract with BESE. Strict proof of Bink's averments are demanded at the time of trial. 43. Denied as a conclusion of law to which no response is required. 44. Denied as a conclusion of law to which no response is required. 4 WHEREFORE, Bruce Ensor Structural Engineer requests judgment in its favor and against Plaintiff Bink Partnership, Inc., in the amount of $17, 035.39 together with costs, fees and legal fees as permitted by law. Answer To Counterclaim Bruce Ensor Structural Engineer Answers the Counterclaim of Bink Partnership, Inc. as follows: 45. BESE incorporates paragraphs 1 through 44 as if fully set forth here at length. 46. Denied as a conclusion of law to which no response is required. 47. Denied. BESE incorporates paragraphs 8, 20, 35, 36 and 41 as if fully set forth here at length. 48. Denied. BESE incorporates paragraphs 8, 20, 3:5, 36 and 41 as if fully set forth here at length. 49. Denied. BESE incorporates paragraphs 8, 20, 3:5, 36 and 41 as if fully set forth here at length. 50. Denied as a conclusion of law to which no response is required. WHEREFORE, Bruce Ensor Structural Engineer requests judgment in its favor and against Bink Partnership, hic. in the amount of $17,035.39, plus costs, fees and attorneys' fees as permitted by law. New Matter to Counterclaim Bruce Ensor Structural Engineer hereby pleads the New Matter to the Counterclaim of Bink Partnership, Inc. as follows: 51. BESE incorporates paragraphs 1 through 50 as if fully set forth here at length. All of BESE's pleadings in this matter are incorporated as if fully set forth at length. 52. Bink's counterclaim is barred by the Statute of Frauds. 53. Bink previously agreed to pay Bink for all amounts which it is due. 54. Bink's allegation that BESE agreed to a modification to the contract such that it transformed into a "pay when paid" contract is false and made in bad faith. 55. Bink's claims are barred by the doctrine of accord and satisfaction. 56. Bink's claims are barred by the doctrine of estoppel. 57. Bink has waived its right to challenge BESE's invoices. WHEREFORE, Bruce Ensor Structural Engineer demands judgment in its favor and against Bink in the amount of $17,035.39 together with costs, fees and attorneys' fees as permitted by law. Respectfully submitted, RHO <4c ON LLP By: DaDavi 'ranw, One South Market Square P. O. Box 1.146 Harrisburg, PA 17108-1146 Phone: (717) 233-5731 Fax: (717) 231-6600 Email: dfrancis@rhoads-sinon.com p 2005 Attorneys for Bruce Ensor Structural Engineer 7 VERIFICATION Bruce Ensor, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities, that he is the sole proprietor of Bruce Ensor Structural Engineer, that he makes this verification by its authority and that the facts set forth in the Answer To New Matter and Counterclaim and New Matter To Counterclaim are true and correct to the best of his knowledge, information and belief, &2 s os L r! Date i' Bruce Ensor CERTIFICATE OF SERVICE I hereby certify that on this 3e day of August, 2005, a true and correct copy of the foregoing Plaintiff's Answer to New Matter and Counterclaim and New Matter to Counterclaim was served by means of United States mail, first class, postage prepaid, upon the following: Diane M. Tokarsky, Esquire Susan V. Metcalfe, Esquire McNees, Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 Attorneys for Defendant_ David W. h?ffcis, Esquire 576694.1 ?' `? c? ?, __ ? ? "T -n ?; ?-, c ; ri?t- _??t??i _ c,) -- 1Ji) s-',.: c.? ("il -? McNEES WALLACE & NURICK LLC Diane M. Tokarsky, Esquire I.D. No. 44369 Susan V. Metcalfe, Esquire I.D. No. 85703 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Partnership, Inc. BRUCE ENSOR STRUCTURAL IN THE COURT OF COMMON PLEAS ENGINEER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 05-3569 CIVIL TERM v. BINK PARTNERSHIP, INC., : CIVIL ACTION - LAW Defendant : JURY TRIAL DEMANDED REPLY TO NEW MATTER TO COUNTERCLAIM Defendant, Bink Partnership, Inc. ("Bink"), by and through its attorneys, McNees Wallace & Nurick LLC, for its Reply to New Matter to Counterclaim, states as follows: 51. Paragraphs 1 - 50 of Bink's Answer with New Matter and Counterclaim are incorporated herein by reference as if set forth at length. 52. Denied. The allegations of paragraph 52 constitute legal conclusions to which no response is required and they are therefore denied. 53. Denied. It is specifically denied that Bink previously agreed to pay BESE for all amounts claimed to be due to BESE. To the contrary, Bink has made no promises to pay BESE any money beyond the sums verified by Bink as due to BESE. The averments set forth in Bink's New Matter and Counterclaim are incorporated herein by reference as if set forth at length. {A704924:} 54. Denied. The allegations of paragraph 54 constitute legal conclusions to which no response is required and they are therefore denied. By way of further response, Bink and BESE agreed that BESE would not be entitled to payment from Bink until Bink received payment from the Owner. Paragraphs 4, 7, and 14 of Bink's Answer with New Matter and Counterclaim are incorporated herein by reference as if set forth at length. 55. Denied. The allegations of paragraph 55 constitute legal conclusions to which no response is required and they are therefore denied. To the extent a response is deemed necessary, paragraphs 6 and 26 of Bink's Answer with New Matter and Counterclaim are incorporated herein by reference as if set forth at length. 56. Denied. The allegations of paragraph 56 constitute legal conclusions to which no response is required and they are therefore denied. To the extent a response is deemed necessary, paragraph 6 of Bink's Answer with New Matter and Counterclaim is incorporated herein by reference as if set forth at length. 57. Denied. The allegations of paragraph 57 constitute legal conclusions to which no response is required and they are therefore denied. fA704924:} WHEREFORE, Defendant Bink Partnership, Inc. requests that judgment be entered in its favor and against Plaintiff, in an amount less than $35,000.00, together with its legal fees, expenses, costs of suit, and such other relief as this Court deems just and appropriate. Respectfully submitted, McNEES WALLACE & NURICK LLC By ' Diane M: Tdk?fsky Attorney I.D. No. 443 Susan V. Metcalfe Attorney I.D. No. 85703 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Dated: October 5, 2005 {A704924:} VERIFICATION Subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities, I hereby certify that I am the President of Bink Partnership, Inc., that I am authorized to make this verification an its behalf, and that the facts set forth in the foregoing document are true and correct to the best of my information and belief. .7 anison F. Bink, AIA Dated: October 2005 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date a true and correct copy of the foregoing document was served via United States first-class mail upon the following: David W. Francis, Esquire RHOADS & SINON LLP One South Market Square, 12`" Floor P.O. Box 1146 Harrisburg, PA 17108-1146 A )///// ; 0 7" V, -? lane M. To s Dated: October 5, 2005 {A704924:} ? ? ; ?' ?;, ; r. .a ?:, ?? ?_-_, ?,, l U y} ' ''1 -M1:A ? ?? ? " • ?1 ?_ C. David W. Francis, Esquire Attorney I.D. No. 53718 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 ENTRY OF APPEARANCE Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. TO THE PROTHONOTARY: Please enter my appearance on behalf of Plaintiff, Bruce Ensor Structural Engineer, in the above-captioned case. David W. Francis remains lead counsel of record for Plaintiff. Respectfully submitted, RHOADS & SINON LLP By: 1 Q14 4, Luj David W. F n is Kelly H. Decker One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 Phone: (717) 233-5731 Fax: (717) 231-6600 Email: dfrancis@rhoads-sinon.com kdecker@rhoads-sinon.com Attorneys for Plaintiff Bruce Ensor Structural Engineer 584076 1 CERTIFICATE OF SERVICE I hereby certify that on this 4`h day of November, 2005, a true and correct copy of the foregoing was served by means of United States mail, first class, postage prepaid, upon the following: Diane M. Tokarsky, Esquire Susan V. Metcalfe, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Kelly . cker a ?-? Ca 'T1 ('. rte" ?1 1? l.. ^.'t {"l ?°_ y' ? V ? _J L} -? _,{!. ii r ? .i tom.. David W. Francis, Esquire Attorney I.D. No. 53718 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 (717) 231-6600 - Fax Attorneys for Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. 4009.22, Plaintiff, Bruce Ensor Structural Engineer, certifies that: (1) a Notice of Intent to Serve the Subpoena with a copy of the Subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the Subpoena is sought to be served, (2) a copy of the Notice of Intent, including the proposed Subpoena, is attached to this Certificate, (3) no objection to the Subpoena has been received, and (4) the Subpoena which will be served is identical to the Subpoena which is attached to the Notice of Intent to Serve the Subpoena. 597661.1 Respectfully submitted, RHOADS & SINON LLP Dated: C-P?Z9,, 2006 By: M1p r t David W. Fr is Kelly H. Dec er Attorneys for Bruce Ensor Structural Engineer 2 CERTIFICATE OF SERVICE I hereby certify that on February 28, 2006, a true and correct copy of the foregoing was served by means of United States mail, first class, postage prepaid, upon the following: Diane M. Tokarsky, Esquire Susan V. Metcalfe, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Kelly Decker David W. Francis, Esquire Attorney I.D. No. 53718 Kelly H. Decker, Esquire Attorney I.D. No, 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 (717) 231-6600 - Fax Attorneys for Plaintiff BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff intends to serve a Subpoena identical to the one that is attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned any objection to this Subpoena. If no objection is made, the Subpoena may be served. Respectfully submitted, RHOADS & SINON LLP By: ) R 4, &kL?- David W. Fran s Kelly H. Decker Attorneys for Plaintiff Bruce Ensor Structural Engineer 591713A CERTIFICATE OF SERVICE I hereby certify that on this _31 day of January, 2006, a true and correct copy of the foregoing was served by means of United States mail, first class, postage prepaid, upon the following: Diane M. Tokarsky, Esquire Susan V. Metcalfe, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 /k it Kelly ?Q. ecker David W. Francis, Esquire Attorney I.D. No. 53718 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 (717) 231-6600 - Fax Attorneys for Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. 4009.22, Plaintiff, Bruce Ensor Structural Engineer, certifies that: (1) a Notice of Intent to Serve the Subpoena with a copy of the Subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the Subpoena is sought to be served, (2) a copy of the Notice of Intent, including the proposed Subpoena, is attached to this Certificate, (3) no objection to the Subpoena has been received, and (4) the Subpoena which will be served is identical to the Subpoena which is attached to the Notice of Intent to Serve the Subpoena. 597661.1 Respectfully submitted, RHOADS & SINON LLP By: Y 4 David W. Fr is Kelly H. Dec er Attorneys for Bruce Ensor Structural Engineer Dated: F-" Z 2006 CERTIFICATE OF SERVICE I hereby certify that on February 28, 2006, a true and correct copy of the foregoing was served by means of United States mail, first class, postage prepaid, upon. the following: Diane M. Tokarsky, Esquire Susan V. Metcalfe, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 I? . Kelly . Decker David W. Francis, Esquire Attorney I.D. No. 53718 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 (717) 231-6600 - Fax Attorneys for Plaintiff BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff intends to serve a Subpoena identical to the one that is attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned any objection to this Subpoena. If no objection is made, the Subpoena may be served. Respectfully submitted, RHOADS & SINON LLP By: 4LL1 0I--"C David W. Frans Kelly H. Decker Attorneys for Plaintiff Bruce Ensor Structural Engineer 591713.1 CERTIFICATE OF SERVICE I hereby certify that on this _31 day of January, 2006, a true and correct copy of the foregoing was served by means of United States mail, first class, postage prepaid, upon the following: Diane M. Tokarsky, Esquire Susan V. Metcalfe, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 R , ?L Kelly" ecker 2 David W. Francis, Esquire Attorney I.D. No. 53718 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 (717) 231-6600 - Fax Attorneys for Plaintiff BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Calvary United Methodist Church 4700 Locust Lane Harrisburg, PA 17109 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED at: Rhoads & Sinon LLP, One South Market Square, 12th Floor, Harrisburg, Pennsylvania 17101. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the parry making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: Kelly H. Decker, Esquire Address: Rhoads & Sinon, LLP P.O. Box 1146 Harrisburg, PA 17108-1146 DATE:, 21- Seal of the Court Telephone: (717) 233-5731 ID #: 84886 592584.1 Attorney for Bruce Ensor Structural Engineer Attachment A - Calvary United Methodist Church Subpoena for Documents Definitions The term "the Project" means Phase I and Phase II of the construction project for the Calvary United Methodist Church. The term "BESE" means Plaintiff Bruce Ensor Structural Engineer. The term `Kink" means Bink Partnership, Inc. The term "Church" means Calvary United Methodist Church. The term "Steams" means Francis R. Steams, P.E., structural engineer. The term "document" shall mean and refer to all written, typed or other graphic materials of any kind or nature, and any other tangible thing by which information or data is stored, including, without limitation, any writing, drawing, film, graph, chart, photograph, phone record, mechanical or electrical sound recording, or transcript thereof, any retrievable data, whether in computer storage, carted, punched, taped, coded or stored electrostatically, electromagnetically, or otherwise, and any other data compilation from which information can be obtained. Without limiting the generality of the foregoing, the term "Document" shall include all contracts, forms, correspondence, e-mails, telegram messages, telephone messages, telephone statement or bills, checks, receipts, notices, notes of conversations, memoranda, reports, diaries, minutes, recitals, statements, worksheets, abstracts, resumes, summaries, notes, jottings, books, journals, ledgers, audits, maps, charges, diagrams, drafts, newspapers, appointment books, desk calendars, expense reports, tape recordings, video recordings, agreements, appraisals, financial statements, calendars, analyses and other tangible writings, including all partial and complete copies, drafts and final versions thereof, and attachments and enclosures therewith. Requested Documents 1. Copies of all documents relating to the Project, including but not limited to, correspondence from Bink, meeting minutes, transmittals, submittals, schedules, RFIs, estimate sheets, change orders, and design documents. 2. Documents relating to any delays associated with the Project. 3. All accounts receivable and accounts payable maintained by the Church. 597698.1 4. An accounting of all payments made by the Church to Bink. 5. A copy of all correspondence relating to BESE's application for payment including the reasons certain applications were not paid. All correspondence regarding the materials utilized or designed for the Project. 7. All correspondence and other documents relating to BESE's design for the Church and/or services provided on the Project. 8. All documents prepared by Francis R. Stearns, P.E. including drawings, plans, specifications, and other construction phase services. 9. A copy of all documents sent by Bink or the Church to Steams. 10. All plans, drawings, specifications (including electronic versions) provided to the Church by Bink or any other entity. 11. All documents relating to the construction budget set forth on the Project, including any increase or approvals for an increase on the construction budget. 12. All modifications made by Stearns or any other entity to BESE's documents, including but not limited to plans, drawings and specifications. David W. Francis, Esquire Attorney I.D. No. 53718 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 (717) 231-6600 - Fax Attorneys for Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. 4009.22, Plaintiff, Bruce Ensor Structural Engineer, certifies that: (1) a Notice of Intent to Serve the Subpoena with a copy of the Subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the Subpoena is sought to be served, (2) a copy of the Notice of Intent, including the proposed Subpoena, is attached to this Certificate, (3) no objection to the Subpoena has been received, and (4) the Subpoena which will be served is identical to the Subpoena which is attached to the Notice of Intent to Serve the Subpoena. 597661.1 Respectfully submitted, RHOADS & SINON LLP Dated: 'j-? h , ZA 12006 By: I? ! A_ _ David W. Fran is Kelly H. Dec er Attorneys for Bruce Ensor Structural Engineer CERTIFICATE OF SERVICE I hereby certify that on February 28, 2006, a true and correct copy of the foregoing was served by means of United States mail, first class, postage prepaid, upon the following: Diane M. Tokarsky, Esquire Susan V. Metcalfe, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Kelly ecker David W. Francis, Esquire Attorney I.D. No. 53718 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 (717) 231-6600 - Fax Attorneys for Plaintiff BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff intends to serve a Subpoena identical to the one that is attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned any objection to this Subpoena. If no objection is made, the Subpoena may be served. Respectfully submitted, RHOADS & SINON LLP By: 0, U??JL David W. cis Kelly H. Decker Attorneys for Plaintiff Bruce Ensor Structural Engineer 591713.7 CERTIFICATE OF SERVICE I hereby certify that on this 3L day of January, 2006, a true and correct copy of the foregoing was served by means of United States mail, first class, postage prepaid, upon the following: Diane M. Tokarsky, Esquire Susan V. Metcalfe, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 0 ?. Kelly H(? ecker tIl 2 David W. Francis, Esquire Attorney I.D. No. 53718 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 (717) 231-6600 - Fax Attorneys for Plaintiff BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Francis R. Steams, P.E. 40 Aspen Drive Dillsburg, PA 17019 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED at: Rhoads & Sinon LLP. One South Market Square, 12th Floor, Harrisburg Pennsylvania 17101. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: Kelly H. Decker, Esquire Address: Rhoads & Sinon, LLP P.O. Box 1146 Harrisburg, PA 17108-1146 DATE:s L,\ o2(e r ?d(, ?o Seal of the Court Telephone: (717) 233-5731 ID #: 84886 592559.1 Attorney for Bruce Ensor Structural Engineer Attachment A - Francis R. Stearns, P.E. Subpoena for Documents Definitions The term "the Project" means Phase I and Phase II of the construction project for the Calvary United Methodist Church. The term "BESE" means Plaintiff Bruce Ensor Structural Engineer. The term "Kink" means Bink Partnership, Inc. The term "Church" means Calvary United Methodist Church. The term "Stearns" means Francis R. Stearns, P.E., structural engineer. The term "document" shall mean and refer to all written, typed or other graphic materials of any kind or nature, and any other tangible thing by which information or data is stored, including, without limitation, any writing, drawing, film, graph, chart, photograph, phone record, mechanical or electrical sound recording, or transcript thereof, any retrievable data, whether in computer storage, carted, punched, taped, coded or stored electrostatically, electromagnetically, or otherwise, and any other data compilation from which information can be obtained. Without limiting the generality of the foregoing, the term "Document" shall include all contracts, forms, correspondence, e-mails, telegram messages, telephone messages, telephone statement or bills, checks, receipts, notices, notes of conversations, memoranda, reports, diaries, minutes, recitals, statements, worksheets, abstracts, resumes, summaries, notes, jottings, books, journals, ledgers, audits, maps, charges, diagrams, drafts, newspapers, appointment books, desk calendars, expense reports, tape recordings, video recordings, agreements, appraisals, financial statements, calendars, analyses and other tangible writings, including all partial and complete copies, drafts and final versions thereof, and attachments and enclosures therewith. Requested Documents Copies of all documents related to the Project including, but not limited to, the following: 1. All documents related to the structural engineering design services provided by Steams on the Project.. 2. Copies of all documents and drawings provided to Stearns by Bink or any other entity on the Project. 3. All documents, including plans, drawings, or specifications, prepared by BESE in your possession, control and/or submitted for your review. 591699.1 4. An modifications made by Steams or any other entity to BESE's documents, including but not limited to plans, drawings and specifications. 5. All correspondence to or from Bink, the Church, Stearns or any other entity involved on the Project. 6. Any documents containing comments regarding BESE's design, drawings, or specifications, including but not limited to the materials used by BESE in its design. 7. A copy of Stearns' contract with Bink on the Project, including the scope of Stearns' services on the Project. All documents evidencing structural engineering services provided by Steams on the Project. All applications for payment or other requests for payment prepared by Stearns on the project. 10. All checks issued to Steams by Bink or any other entity on the Project. 11. A copy of all meeting minutes, RFIs, submittals, schedules, estimate sheets, change orders, design documents, or correspondence in your possession relating to the Project. - ' , ,., '? ` ' .? ? . Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule David W. Francis, Esquire Attorney I.D. No. 53718 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 (717) 231-6600 - Fax Attorneys for Plaintiff BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. 4009.22, Plaintiff, Bruce Ensor Structural Engineer, certifies that: (1) a Notice of Intent to Serve the Subpoena with a copy of the Subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the Subpoena is sought to be served, (2) a copy of the Notice of Intent, including the proposed Subpoena, is attached to this Certificate, (3) no objection to the Subpoena has been received, and (4) the Subpoena which will be served is identical to the Subpoena which is attached to the Notice of Intent to Serve the Subpoena. 597661 1 Respectfully submitted, RHOADS & SINON LLP Dated: Feb Z? 1, 2006 By: ?. cis David W. F& Kelly H. De er Attorneys for Bruce Ensor Structural Engineer CERTIFICATE OF SERVICE I hereby certify that on February 28, 2006, a true and correct copy of the foregoing was served by means of United States mail, first class, postage prepaid, upon the following: Diane M. Tokarsky, Esquire Susan V. Metcalfe, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Kelly H. Dec r David W. Francis, Esquire Attorney I.D. No. 53718 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 (717) 231-6600 - Fax Attorneys for Plaintiff BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff intends to serve a Subpoena identical to the one that is attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned any objection to this Subpoena. If no objection is made, the Subpoena may be served. Respectfully submitted, RHOADS & SINON LLP By: '19 0A David W. Fri s Kelly H. Dec er Attorneys for Plaintiff Bruce Ensor Structural Engineer 591713.1 CERTIFICATE OF SERVICE I hereby certify that on this day of January, 2006, a true and correct copy of the foregoing was served by means of United States mail, first class, postage prepaid, upon the following: Diane M. Tokarsky, Esquire Susan V. Metcalfe, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 0 . (i ks'? Kelly H. cker 2 David W. Francis, Esquire Attorney I.D. No. 53718 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 (717) 231-6600 - Fax Attorneys for Plaintiff BRUCE ENSOR STRUCTURAL ENGINEER V. Plaintiff BINK PARTNERSHIP, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3569 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Miller & Norford, Inc. 700 Ayers Avenue Lemoyne, PA 17043 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED at: Rhoads & Sinon LLP, One South Market Square, 12th Floor, Harrisburg, Pennsvlvania 17101 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: Kelly H. Decker, Esquire Telephone: (717) 233-5731 Address: Rhoads & Sinon, LLP ID #: 84886 P.O. Box 1146 Attorney for Bruce Ensor Structural Engineer Harrisburg, PA 17108-1146 DATE: (G6- Seal of the Court 592578.1 Attachment A - Miller & Norford Inc. Subpoena for Documents Definitions The term "the Project" means Phase I and Phase II of the construction project for the Calvary United Methodist Church. The term "BESE" means Plaintiff Bruce Ensor Structural Engineer. The term "Kink" means Bink Partnership, Inc. The term "Church" means Calvary United Methodist Church. The term "Steams" means Francis R. Stearns, P.E., structural engineer. The term "Miller" means Miller & Norford, Inc., the contractor involved on the Project. The term "document" shall mean and refer to all written, typed or other graphic materials of any kind or nature, and any other tangible thing by which information or data is stored, including, without limitation, any writing, drawing, film, graph, chart, photograph, phone record, mechanical or electrical sound recording, or transcript thereof, any retrievable data, whether in computer storage, carted, punched, taped, coded or stored electrostatically, electromagnetically, or otherwise, and any other data compilation from which information can be obtained. Without limiting the generality of the foregoing, the term "Document" shall include all contracts, forms, correspondence, e-mails, telegram messages, telephone messages, telephone statement or bills, checks, receipts, notices, notes of conversations, memoranda, reports, diaries, minutes, recitals, statements, worksheets, abstracts, resumes, summaries, notes, jottings, books, journals, ledgers, audits, maps, charges, diagrams, drafts, newspapers, appointment books, desk calendars, expense reports, tape recordings, video recordings, agreements, appraisals, financial statements, calendars, analyses and other tangible writings, including all partial and complete copies, drafts and final versions thereof, and attachments and enclosures therewith. Requested Documents Copies of all documents related to the Project including, but not limited to, the following: 1. All documents related to the structural engineering design services provided by Stearns and BESE on the Project.. 2. Copies of all construction cost estimates prepared for the Project. 3. All documents, including plans, drawings, or specifications, prepared by BESE in your possession, control and/or submitted for your review. 592303.1 4. All modifications made by Stearns or any other entity to BESE's documents, including but not limited to plans, drawings and specifications. 5. All correspondence to or from Bink, the Church, Stearns, Miller or any other entity involved on the Project. 6. Any documents containing comments regarding BESE's design, drawings, or specifications, including but not limited to the materials used by BESE in its design. T A copy of all meeting minutes, RFIs, submittals, schedules, estimate sheets, change orders, design documents, or correspondence in your possession relating to the Project. i? f rX oc F, 5VZ-()C-(VX t- vs 1-5 1 Kt K EA:&-(-U (-,5 W(P ?6,v 6 ilveo??C"VG Case No. 05-3 69 Statement of Intention to Proceed To the Court: ?wL? ScJ JZ(/ C7?/f?/?- intends to proceed with the above captioned matter. Print Name ct c e Ofi_ Name Date: O Attorney for Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. 11 Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the ternmination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. Bruce Ensor Structural Engineer vs Bink Partnership, Inc. Case No. 05-3569 Statement of Intention to Proceed To the Court: Engineer Plaintiff, Bruce Ensor Structural intends to proceed with the above captioned matter. Print Name Kelly H. Decker Sign Name 4. _261L, 61 Date: 10/20/09 Attorney for Plaintiff Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A. 2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. If Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. y CERTIFICATE OF SERVICE I hereby certify that on this 20th day of October, 2009, a true and correct copy of the foregoing Statement of Intention to Proceed was served by means of United States mail, first class, postage prepaid, upon the following: Diane M. Tokarsky, Esq. McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Counsel for Defendants Susan B. Chandler OF TH5 PR?-' -1 TA RY 2009 OCT 21 x,11= 14 BRUCE ENSOR STRUCTURAL ENGINEER, Plaintiff V. BINK PARTNERSHIP, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3569 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED UNCONTESTED MOTION OF MCNEES WALLACE & NURICK LLC TO WITHDRAW AS COUNSEL FOR DEFENDANT Diane M. Tokarsky, Susan V. Metcalfe, and McNees Wallace & Nurick LLC ("Petitioners") respectfully petition this Court for leave to withdraw as counsel to Bink Partnership, Inc. ("Defendant") and in support of their Petition, aver as follows: 1. Petitioners are counsel for Defendant in the above-captioned matter. 2. Petitioners have represented Defendant throughout the current matter. 3. Defendant is obligated to pay Petitioners for legal services rendered. 4. Petitioners have billed Defendants on a monthly basis for legal services rendered. 5. Defendant has not paid Petitioners for a substantial portion of the fees for services rendered in this matter and has not provided adequate assurances of further payment. 6. Defendant has not made payment to Petitioners since late 2008 and is substantially in arrears. ,--ft 7. Defendant has violated its legal obligation to Petitioners with respect to payment for legal services rendered. 8. Petitioners, in accordance with Pennsylvania Rules of Professional Conduct, Rule 1.16(b), advised Defendant that Petitioners would not be able to continue representation unless Defendant met its legal obligations with respect to payment for legal services rendered. 9. To date Defendant has not made arrangements for the payment of the outstanding invoices. 10. Petitioners are unable to competently, diligently, and thoroughly represent Defendant due to Defendant's unresponsiveness. 11. There are no impending deadlines in this matter; in fact, it was recently listed on the purge list. 12. The parties to this litigation will not be prejudiced if Petitioners are permitted to withdraw as counsel. 13. Concurrence was sought from counsel for the Plaintiff. Plaintiffs counsel does concur in this motion. 14. This Court has not ruled upon any other issue in the same or related matter. 15. The current address of Defendant is Bink Partnership, Inc., 133 S. 32"d Street, Camp Hill, PA 17011. 2 WHEREFORE, Petitioners Diane M. Tokarsky, Susan V. Metcalfe, and McNees Wallace & Nurick LLC respectfully request leave to withdraw their appearance as counsel for Bink Partnership, Inc. McNEES WALLACE & NURICK LLC By "Oorzz Diane M. o rsky, Esquire I.D. No. 44369 Susan V. Metcalfe, Esquire I.D. No. 85703 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Dated: November 12, 2009 Attorneys for Defendant Bink Partnership, Inc. 3 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served via United States first-class mail upon the following: Michael W. Winfield, Esquire RHOADS & SINON LLP One South Market Square, 12`h Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Diane M. Tokarsky Dated: November 12, 2009 FILFL ., r f y /y Y lAt 7r lr_ J 1 f t? F m 2009 HOV 13 11 12: 5 7 C' t' , 4: {,.i ' i v, ,???'. NOV 16 2009 BRUCE ENSOR STRUCTURAL IN THE COURT OF COMMON PLEAS ENGINEER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : NO. 05-3569 CIVIL TERM V. : BINK PARTNERSHIP, INC., : CIVIL ACTION - LAW Defendant : JURY TRIAL DEMANDED ,L ORDER AND NOW, this day of Pre? , 1102009, upon consideration of the Uncontested Motion of McNees Wallace & Nurick LLC to withdraw as counsel for the Defendant in the above action, said Motion is hereby GRANTED. Y THE COUR J. DISTRIBUTION: ? Diane M. Tokarsky, Esquire, McNees Wallace & Nurick LLC, 100 Pine St., P.O. Box 1166, Harrisburg, PA 17108 (717) 237-5354 (counsel for defendant, Bink Partnership, Inc.) -' Michael W. Winfield, Esquire, Rhoads & Sinon LLP, One South Market Square, P.O. Box 1146, Harrisburg, PA 17108-1146 717) 237-6703 (counsel for plaintiff, Bruce Ensor Structural Engineer) l..O? ? EEs m,at L4cL /l/l8/oy FILED-OFFICE OF THE PROTHONOTARY 2009 PLOY 18 PM 1: 0 4 pr- uNNSYLVANIA, David (D. Bueff Prothonotary Y,irkS. Sohonage, ESQ, Soficitor t_- F Ci. 1750 Penee X. Simpson 15` Deputy Prothonotary Irene E. Morrow 2nd (Deputy Prothonotary Office of the Prothonotary Cumber(and County, Pennsylvania Ds • 35b.9 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 30TH DAY OF OCTOBER, 2012, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE -THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P. 230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 0 Carfisfe, PA 17013 • (717 240-6195 • Fax (717) 240-6573