HomeMy WebLinkAbout05-6348Dean F. Piennattei, Esquire
Attorney I.D. No. 53847
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
McCOY BROS., INC.
V.
Plaintiff
DONALD DIEHL and SUZANNE
DIEHL
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW L'
7 -
NO. O5 - 3 to l o; 141Lr,?._1
NOTICE TO PLEAD
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 are served, by entering a written appearance personally or by attorney and filing
in writing with the Court your defenses or objections to the claims set forth against you.
You are warned that if you fail to do so the case may proceed without you and a judgment
may be entered against you by the Court without further notice for any money claimed in
the Complaint or for any other claim or relief requested by the Plaintiff. You may lose
money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(800) 990-9108
AVISO
USTED HA SIDE DEMANDADOIA EN CORTE. Si usted desea
defenderse de ]as demandas que se presentan mas adelante en las siguientes paginas, debe
tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta
Demanda y Aviso radicando personalmente o per medio de un abogado una comparecencia
escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas
presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como
se describe antcriormente, el caso puede proceder sin usted y un fallo per cualquier suma de
dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el
demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted
puede perder dinero o propiedad u otros derechos importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO
INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE
PAGARLE A UNO, LLAME O VAXA A LA SIGUIENTE OFICINA PARA
AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(800) 990-9108
Dean F. Piermattei, Esquire
Attorney I.D. No. 53847
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
n
NO. DS- L3 ? CI'D i
COMPLAINT
NOW COMES, McCoy Bros., Inc. ("McCoy Bros.") through their attorneys,
McCOY BROS., INC.
V.
Plaintiff
DONALD DIEHL and
SUZANNE DIEHL
Rhoads & Sinon LLP and Dean F. Piermattei and avers the following in support of it's
Complaint:
I. McCoy Bros. is a Pennsylvania Corporation engaged in the general
construction business with a principal office located at 1514 Commerce Avenue,
Cumberland County, Pennsylvania 17013.
2. At all relevant times, Donald Diehl and Suzanne Diehl were adult
individuals who maintain a residence in Cumberland County.
3. In January 2005, Defendants acquired a parcel of land from McCoy
Business Center and inquired of McCoy Bros. about moving forward with development
of the parcel as Defendants desired to construct an office building on the land.
4. An official "kick off meeting" was scheduled for February 4, 2005 at 1:00
p.m. to discuss various topics relating to land development submissions and approvals,
1V610 I
zoning variances, progress on building drawings, review of owners' concept for
construction of the building, budget review, sub-contractor selection, time schedule for
start and finish of construction, identification of individuals who would be working on
the project and billing procedures. Furthermore, the Owners requested samples of
commercial lease advertising for the building. A copy of an e-mail from Greg Kuhn at
McCoy Bros. detailing the various topics to be discussed at the February 4, 2005 meeting
is attached hereto as Exhibit "A" and incorporated herein by reference.
5. The February 4, 2005 kick off meeting occurred and the topics identified
above were in fact discussed. Present at this meeting were representatives from McCoy
Bros. as well as the Defendants, the owners' financing representative, the architect and
the civil engineer involved with the project.
6. At the kick off meeting, McCoy Bros. and the other professionals were
given authorization from the Defendants to move forward with development of the parcel
and plans for constructing the office building. The Owners also instructed McCoy Bros.
and the other professionals at the meeting on the procedure for submitting invoices for
services being provided.
7. McCoy Bros, along with the other professionals involved in the project
moved forward as requested by the Defendants with development relating to both the
parcel of land and the office building to be constructed.
8. Subsequent to the kick off meeting as a result of services being performed
by the architect, engineering firms and McCoy Bros., invoices were submitted
periodically to the Defendants and these invoices were paid.
9. As part of the services provided, McCoy Bros. obtained certain aerial
mapping for the property and invoiced the same to the Defendants through invoice
2-
number 1520 which was paid on March 11, 2005. A copy of this invoice and check
paying the same is attached hereto as Exhibit "B" and incorporated herein by reference.
10. On May 31, 2005, McCoy Bros. submitted another invoice for structural
engineering services relating to development of the plans for the building. This invoice
for $4,738 was paid by the Defendants on June 10, 2005. A copy of this invoice and
Defendants' check is attached hereto as Exhibit "C" and incorporated herein by
reference.
11. On June 30, 2005, McCoy Bros. and Robert Cianfichi (the Architect) met
with Mr. Diehl to provide him with a break down of the project costs associated with
construction of the building. At that time, the Defendant indicated that the costs were
little higher than he expected, however, Diehl authorized McCoy Bros, to continue with
the project and obtain bids from different subcontractors. The Owner at that time also
told McCoy Bros. representatives to contact the Owner's financing person. The Owner
represented at the conclusion of the meeting that he would be moving forward with the
project. The only contingency would be if the project could not be brought in on budget,
he may need to delay construction until he could obtain a commercial tenant. If
modifications could be made by using alternatives for construction, and the budget could
be met, the project would begin immediately. Accordingly, McCoy Bros. continued to
move forward with examining construction alternatives in an attempt to fine tune the
budget.
12. After the June 30'h meeting, McCoy Bros. had two subsequent telephone
conferences with the architect and Mr. Diehl wherein the parties discussed value
engineering which included discussing McCoy Bros.' efforts relating to a masonry
alternative. The Parties explored value engineering in an attempt to fine tune the budget.
Subsequently, the week of July 18t`, McCoy Bros. learned for the first time through a
-3-
party other than the Owner, that the Owner had engaged in discussions with another
builder regarding construction of the building. When McCoy Bros. attempted to follow-
up with the Owner to discuss this topic, Mr. Diehl simply never returned McCoy Bros.'
calls and McCoy Bros. never heard from Mr. Diehl again relating to the status of the
project or whether the Owner wished to have McCoy Bros. continue its involvement in
the project.
13. After some time had passed from the June 30`h meeting, McCoy Bros.
learned that the Defendants had ultimately decided to go with another contractor to
complete development of the office building. This was never conveyed directly from the
Defendant to McCoy Bros. rather, McCoy Bros. discovered this fact after they saw
another contractor's sign on the lot.
14. On July 31, 2005 McCoy Bros. submitted an invoice to the Defendants in
the amount of $13,738 for the past engineering fees which were previously incurred by
McCoy Bros. as per Defendants' direction to move forward with the development of the
building. This invoice however, remains unpaid by the Defendants notwithstanding
repeated requests for payment by McCoy Bros. A copy of this invoice is attached hereto
as Exhibit "D" and incorporated herein by reference.
15. McCoy Bros. also submitted an invoice in the amount of $5,824 relating to
site clearing required for subsurface testing. The Defendants have refused to pay this
invoice notwithstanding the fact that the Defendants paid the civil engineer for the actual
testing that was performed after the site was cleared. A copy of this invoice is attached
hereto as Exhibit "E" and incorporated herein by reference.
I. BREACH OF CONTRACT
16. Paragraphs 1 through 15 above are incorporated herein by reference.
-4-
17. The parties had a verbal agreement whereby McCoy Bros. would move
forward with developmental process relating to both the parcel of land purchased by the
Defendants and the proposed office building. In exchange for this, Defendants agreed to
pay McCoy Bros. for the cost of services provided by McCoy Bros.
18. McCoy Bros. engaged the services of various engineers and construction
people in fulfilling the request of the Defendants for development of the property.
19. While Defendants made partial payments on some of the invoices
submitted, Defendants have refused to make payment on the Outstanding Invoices
totaling $19,562. These charges were incurred prior to McCoy Bros. discovery that the
Defendants decided to continue the development with another contractor.
20. McCoy Bros. performed all services necessary and fulfilled all conditions
necessary to receive payment on the Outstanding Invoices.
21. The Defendants never indicated either directly or through their counsel,
that McCoy Bros. somehow did not properly perform the services.
22. As a direct result of the breach of the agreement between the parties,
McCoy Bros. has incurred damages in the amount of $19,562, plus interest on the
Outstanding Invoices plus the value of McCoy Bros. actual services.
23. The Outstanding Invoices do not include the cost of McCoy Bros. actual
services associated with assisting the Defendants in the development of the property,
which McCoy Bros. are entitled to collect, but rather, reflect costs associated with
engaging engineers and excavators to assist with the development requested by the
Defendants.
WHEREFORE, McCoy Bros. respectfully requests that this Court enter judgment
in its favor and against the Defendants in the amount of $19,562, together with the value
5-
of McCoy Bros. actual services, plus interest and costs as allowed by law and attorneys
fees, an amount which exceeds the mandatory arbitration amount of $35,000.
II. UNJUST ENRICHMENT
24. Paragraphs 1 through 23 above are incorporated herein by reference.
25. McCoy Bros. provided valuable services to the Defendants to allow them
to develop the parcel and develop the office building they intended to construct on the
property.
26. The reasonable value of these services which remain unpaid exceeds
$19,562.
27. The Defendants have received significant benefit from the services
provided by McCoy Bros. and Defendants have wrongfully refused to pay McCoy Bros.
for these services.
28. Defendants have been unjustly enriched by the services provided by
McCoy Bros. in that they have refused to make payment to McCoy Bros.,
notwithstanding repeated requests for the same.
29. As direct and proximate cause of such unjust enrichment, McCoy Bros.
has sustained damages an amount in excess of $19,562.
30. Injustice will result if recovery is denied to McCoy Bros.
WHEREFORE, McCoy Bros. respectfully requests that this Court enter judgment
in its favor and against the Defendants in the amount of $19,562, together with the value
of McCoy Bros. actual services, plus interest and costs as allowed by law and attorneys
fees, an amount which exceeds the mandatory arbitration amount of $35,000.
III. PROMISSORY ESTOPPEL
31. Paragraphs 1 through 30 above are incorporated herein by reference.
6-
32. Defendants promised to pay McCoy Bros. for the reasonable value of
McCoy Bros.' services relating to the development of the property and building.
33. Throughout the course of 2005, while McCoy Bros, was working pursuant
to Defendants' request, Defendants made numerous requests for McCoy Bros. to
continue working on development of the building and land, knowing that it had been
charged for past services and would be charged for future services.
34. McCoy Bros. complied with these requests and provided engineering and
other construction services.
35. Defendants' actions and words relating to promises that McCoy Bros.
would be paid for its services, including the paying of prior invoices submitted to the
Defendants, encouraged McCoy Bros. to continue its activities relating to the
development of the Defendants' property.
36. McCoy Bros. substantially performed all of the obligations owed to the
Defendants for the amounts it is seeking to collect.
37. It was reasonable for Defendants to expect that its request for services and
representations that they would make payment for the same, would be relied upon by
McCoy Bros. and others.
38. McCoy Bros. reasonably and justifiably relied upon Defendants' action
relating to requests for services and promises to pay and McCoy Bros. fully performed
accordingly.
39. As a direct and proximate result of Defendants' action and McCoy Bros.
reliance thereon, Defendants have been benefited at McCoy Bros. expense by failing to
pay McCoy Bros. $19,562, for the Outstanding Invoices and failure to pay McCoy Bros.
for other services rendered.
-7-
40. An injustice will result if Defendants do not pay as per representations and
promises.
41. The aforementioned injustice can be avoided only by enforcing the
promises and representations made by the Defendants by awarding payment to McCoy
Bros. in the amount in excess of $19,562.
WHEREFORE, McCoy Bros. respectfully requests that this Court enter judgment
in its favor and against the Defendants in the amount of $19,562, together with the value
of McCoy Bros. actual services, plus interest and costs as allowed by law and attorneys
fees, an amount which exceeds the mandatory arbitration amount of $35,000.
IV. CONTRACT AND SUBCONTRACTOR PAYMENT ACT CLAIM
42. Paragraphs 1 through 41 above are incorporated herein by reference.
43. McCoy Bros. has fully performed the services requested of it by the
Owner.
44. Notwithstanding McCoy Bros.' invoices for payment and the satisfaction
of all conditions precedent allowing for payment to McCoy Bros., the Owner has
continued to refuse to make payment to McCoy Bros.
45. Pursuant to the Contractor and Subcontractor Payment Act, 73 P.S. §501
et seq., (the "Act"), payment was due 20 days after delivery of McCoy Bros.' invoice to
the Owner.
46. As a result of the Owner's failure to make payment under the Act, McCoy
Bros. is entitled to recover interest at the rate of 1% per month as well as a penalty at the
rate of 1% per month and attorney's fees which McCoy Bros. has incurred in this matter.
-8-
WHEREFORE, McCoy Bros. respectfully requests that this Court enter judgment
in its favor and against the Defendants in the amount of $19,562, together with the value
of McCoy Bros. actual services, plus interest, penalty and attorney's fees and other costs
as allowed by law, an amount which exceeds the mandatory arbitration amount of
$35,000.
Respectfully submitted,
RHOADS & SINON LLP
By;
e icrmattei, Esquire
South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
Date: December 13, 2005
9-
VERIFICATION
Gregory S. Kuhn, deposes and says, subject to the penalties of 18 Pa. C.S. §4904
relating to unworn falsification to authorities, that he is the Vice President of Design,
Build Construction of McCoy Bros. Inc., 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.
Date
EXHIBIT "A"
717 241 2055 P.03
Greg Kuhn
From: Bill McCoy
Sent: Friday, February 04, 2005 1:25 PM
To: Greg Kuhn
Subject: FW: Lot 911
-----original Message-----
From: Greg Kuhn (mailto:gkuhn45@comcast.net]
Sent: Monday, January 31, 2005 11:10 FM
To: Pamela Fisher (E-mail)
Cc: Robert Cianfiehi (E-mail); Bill McCoy
Subject: Lot 411
Hello All,
The purpose of this e-mail note is to confirm a new kick-off meeting for Lot $11.
As we all know Don Diehl is the new owner.
The meeting shall be at McCoy Brothers' office this Friday, Feb 04 @ l:OOPM.
I have a rehab appointment @ ll:DO and will get a ride to the office afterwards.
Don may invite his bank representative from Members 1st to the meeting.
Se,,eral items to discuss shall be as follows: Me'' ` h IYt w0,1010
1. Define new Land Development submission/approval schedule.
2. File for zoning variance for mixed occupancy groups. A Z `
'. Review progress on current land development drawings.
FI*V
4. Review Bob's current floor plans and elevations. S M 10 .
5. Understand Don's purpose for the proposed building, such as: construct maximum
building now vs build in phases, rental property, how many tenants, special features, etc.
G. Develop budget, sub-contractor selections, start and/or finish construction dates.
7. Understand who is working for who, project name, billings, etc.
Pam and Bob could you bring one (1) set of your current drawings.
We can reproduce extra sets prior to the meeting.
I should be in the office by 12:30 on Friday.
Looking forward to another great project opportunity.
Any thoughts, comments and/or suggestions, please forward accordingly.
GSK
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EXHIBIT "B"
AUG-19-2005 14:05 MCCOY BROTHERS INC 717 241 2055 P.04
THIS IS YOUR INVOICE NO. 1520
COMMERCIAL - INDUSTRIAL PRE-ENGINEERED
INSTITUTIONAL- DESIGN! BUILD BUILDING SYSTEMS P A rn; P. nI IS
reOR-
1514 Commeme Avenue + P.O. Box 7300 a Carlisle. PA 17013
Phone (717) 241-2023 *'Fax (117).241-2055
ATP.
TO: Suzanne Diehl DATE: 28 February 2005
ADDRESS: -,4?EastHigh -SStreet, Suite A PROJECT* 04W 22O-0 CUSTOMER* .22550
Carlisle PA 17013 BASIS:T 6 M complete -to date
NATURE.OF WORK Lat9H 1 - McCoy .Business Center
commerce Avenue - Carlisle PA TERMS: Net :25 Days Fr=-Invoice Date
DONALD E. DIEHL o2/9e
RENTAL ACCOUNT
4 E. HIGH ST. 717-249-7127
CARLISLE PA 17019
16296
' e-sa/sto
DATE_ /! O
PAY
TO THE ORDER OF 4 $
WACnOVIA
Wachovia Bank, N.A,
wachovla.com
0
8 w..?
-....? _ ? C -? W
11'0001829611° I:031000SO 31:200092i74556411'
TOTAL MATERIAL &.EQUIPMENT
SUBTOTAL
OVERHEAD. AND'' ADMINISTRATION.
SUBTOTAL
PROFIT
1'150.00
1150.00
MCCOY BROTHERS INC
sad/ 9Rreld/t 7&ddA'#'arc A dAv*
P.O. Box 8
345 Criswell Drive
Boiling Springs, PA 17007.0008
Arthur E. Bear, Operations Manager
email: smtmaDsmtma,org
February 8, 2005
McCoy Brothers, Inc.
1514 Commerce Avenue
P.O. Bos 7300
Carlisle, PA 17013
717 241 2055 P.05
dministration of:
Sewer System
Water System
Telephone: 717-258-6476
Fax: 717-258-3599
Website: www.smtma.org
rl' US klll?v S U V %! "1111 N
i
FEB 2 3 2005 ti
Re: Aerial Mapping -Lot#11, Commerce Avenue
(Minimum Billing)
Gentlemen:
The following is the billing for the above survey information you requested.
A. 60 Acres @ $15/acres $ 900,00
B. Overhead & Engineering 250.00
$1,150.00
N t. R-:ef
Please issue a check payable to SMTMA for $1,155.00 at your earliest convenience.
Sincerely yours,
Arthur B. Beat
Operations Manager
AEB/wss
6 r *-20
cc: Blue File U a
Project File
Rod Vorkapich; Glace Associates
EXHIBIT "C"
RIJG-19-2005 14:06 MCCOY BROTHERS INC 717 241 2055 P.06
No. 1568
THIS Is YOUR INVOICE
PRE-ENGINEERED
COMMERCIAL -INDUSTRIAL
INSTITUTIONAL -DESIGN /BUILD BUILDING SYSTEMS
oaiBUL COMTRACfC
1514 Commerce Avenue P.O. BOX 7300 Caffisie, PA 17013
Phone (717) 241-2023 • Fax (717);241-2055
kTT:
r0: Suzanne Diehl DATE:31 May 2DO5
iDDRESS; 4 :East High Street, Suite A PROJECT* 04=220-0 '.CUSTOMER: 22550
Carlisle PA 1'7013 BASIS*T e M ccarplete.to date
NATURE OF WORK L0t'#11=McCoy Buainms.Center
commerce Avenue - Carlisle PA TERMS: Net 25: Days ':Frm IIIwioe Date
Ritchie
SUBCONTRACTORS I MATERIALS
AMOUNT
CLASSIFICATION
4600.00
LABOR:
O,h .RATE. -AMOUNT .
18558
a-6a/9ta
DAO O
6 el ;7
DOLLARS 8 W=
WACHOVIA
- - Waohovia Bank, N.A.
Hacnovia.cam ? ? `
FOR,-
11'0001855811' 1:03 1000 50 31:2000921775561,11'
INSURANGE?ANDTA%ES
TOTAL'MMT•eRIAL.&:EQUIPMENT 4600, DD
SUB TOTAL
OVERHEAD AND ADMINIST.RAMON
SUBTOTAL
PROFIT (3% owrdinabon fee) 138.,00
TOTAL (2) 76888:00 4738- 00
DONALD E. DIEHL D2/8s
RENTAL ACCOUNT
4 E. HIGH ST. 717-249-7127
r•o- CARLISLE, PA 17013
OUG-19-2005 14 OG MCCOY BROTHERS INC 717 241 2055 P.07
itchie
Engineenng.
sournral eauurtilly??.>ns.,Ialrn ssrvl<es
51W IMIVA W=?• Qftk, M11013
M 717143,1355' fM'. 717.333.IMI
McCoy Brothers, Inc.
P.O. Box 7300
1514 Commerce Avenue
Carlisle, PA 17013
Attn: Greg Kuhn
Invoice
Date Invoice #
5/20/2005 1200
Terms RE Job #
Net 15 05043
Description Rate Amount
Professional Structural Engineering Services through May 20, 4,600.00 4,600,00
2005 for the Design Phase Services for the Diehl Office
Building located in Carlisle, PA.
This Invoice is based on the Scope of Services and Terms and
Conditions included in the Proposal Letter dated May 20, Cx
2005.
pag?k6
Total $4,600.00
Nc? Rb-f-
EXHIBIT "D"
AIJG-19-2005 14 05 MCCOY BROTHERS INC
THIS IS YOUR INVOICE
COMMERCIAL- INDUSTRIAL
INSTITUTIONAL - DESIGN/ BUILD
aE1?+AL CONtRAC10R6
1514 Commerce Avenue P.O. Box 7300 • Cadisic. PA 17013
Phone (717)"241-2023 • Fax (717) 241-2055
Fr.
717 241 2055 P.08
No. 1650
PRE-ENGINEERED
:BUILDING' SYSTEMS
Suzanne Diehl .. -DATE: 31 July 2005
:)DRESS: 4 Fast High Street, Suite A PROJECT*. 04-220-0 CUSTOMER*- 22550
Carlisle PA 17013 BASIS:T S M complete to date
iATURE OF WORK LotS11-McCoy.Bu I-n Center
Commerce Avenue Carlisle FA TERMS: Net 25 Days 'Fran Invoice Date .
SUBCONTRACTORS IMATERIALS
AMOUNT LABOR
CLASSIFICATION p? RATE AMOUNT
1EQ Engineering 10566.25
Utchie Engineering 2772.00
'EQUIPMENT. HOURS. ' -RATE TOTALLABOR
TRAVELEXPENSE
INSURANCE AND TAXES
TOTAL MATERIAL & EQUIPMENT 13338.25
SUBTOTAL
OVERHEAD AND ADMINISTRATION
SUBTOTAL 13338,25
PROFIT (3%coordinetiohiee) 399..75
TOTAL 119618:00 13738.00
EXHIBIT "E"
MCCOY BROTHERS INC
THIS IS YOUR INVOICE
COMMERCIAL - INDUSTRIAL O .
INSTITUTIONAL - DESIGN ! BUILD
GEr6rAL C4rtAAClo116
717 241 2055 P.12
No. 1651
PRE-ENGINEERED
BUILDING SYSTEMS
1514 Commerce Avenue a P.O. Box 7300 . Carlisle, PA 17013
Phone (717) 241-2023 a Fax (717) 241-2055
,TT:
O' Suzanne Diehl DATE;1. August 2005___
,DDRESS: 4 East High Streets Suite A PROJECT* 04-220-0 CUSTOMER: 22550
Carlisle PA 17013 BASIS:T & M complete to date
NATURE OF WORK Lot 011 - McCoy Business Carter - Carlisle PA
Site work services to allow surface geophysics investigation by TERMS: Net 25 Days Frcm invoice Date
?awood Associates
SUBCONTRACTORS M
TERIALS OUNT LABOR
A AM TOTAL w RATE AMOUNT
Tri-Bozo 227.37 Labor 91.0 2207,00
.EQUIPMENT .' HOURS, ;RATE TOTAL LABOR 2207.00
Komatsu Loader 26.0 55.00 1430.00 TRAVELEXPENSE
CAT 955L Loader 8. 45.0 360.00 INSURANCE AND TAXES
Tractor Trailer 3. 35.00 105.00 TOTAL MATERIAL & EQUIPMENT 2832.37
Tri-Axle Dump 27.0 25-0 675.00 SUBTOTAL 5039.37
Oliver Tractor 1.0 20.0 20.00 OVERHEAD AND ADMINISTRATION 8% 403.15
Pick-Up Truck 1. 15.00 15.00 SUBTOTAL 5442.52
PROFIT 7% 381.48
TOTAL 4 =25470.00 5824.00
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4-?
r
McCOY BROTHERS, INC.,
Plaintiff
vs.
IN THE COURT OF COMMON
PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION
DONALD DIEHL and No. 05-6348 Civil Term
SUZANNE DIEHL,
Defendants JURY TRIAL DEMANDED
DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S COMPLAINT
COME NOW Defendants, Donald Diehl and Suzanne Diehl ("Diehls"),
through their counsel, Saidis, Flower & Lindsay, and respectfully represent:
1. Plaintiff commenced the instant action by filing a complaint against
Defendants on or about December 13, 2005.
2. Plaintiff alleges in its complaint that it had an oral contract with
Defendants calling for Plaintiff to commercially develop a piece of land and for
Defendants to pay Plaintiff according to terms that are not specified in the complaint.
3. Plaintiff alleges in its complaint that Defendants "inquired" of Plaintiff
about "moving forward" with development of the parcel. Complaint, paragraph 3.
4. Plaintiff further alleges in its complaint that a "kick-off meeting" was
SAIDIS,
FLOWER &
LINDSAY
A! UHUNL}S.pi.uu
26 West High Street
Cedislc, PA
then held "to discuss various topics relating to land development submissions and
approvals...." Complaint, paragraph 4.
5. Plaintiff alleges that at the same meeting, Plaintiff got "authorization
from the Defendants to move forward with development of the parcel and plans for
constructing the office building." Complaint, paragraph 6.
6. Plaintiffs complaint explicitly alleges conditions on Defendants'
obligation to pay Plaintiff to "go forward" with the vaguely described development
project:
On June 30, 2005, McCoy Bros. and Robert Cianfichi (the Architect) met with
Mr. Diehl to provide him with a break down of the project costs associated
with construction of the building. At that time, the Defendant indicated that
the costs were little higher than he expected, however, Diehl authorized
McCoy Bros. to continue with the project and obtain bids from different
subcontractors. The Owner at that time also told McCoy Bros.
representatives to contact the Owner's financing person. The Owner
represented at the conclusion of the meeting that he would be moving forward
with the project. The only contingency would be if the project could not be
brought in on budget, he may need to delay construction until he could
obtain a commercial tenant. If modifications could be made by using
alternatives for construction, and the budget could be met, the project
would begin immediately. Accordingly, McCoy Bros. continued to move
forward with examining construction alternatives in an attempt to fine
tune the budget.
Complaint, paragraph 11 (emphasis added).
COUNTI-DEMURRER
Paragraphs 1-3 set forth above are incorporated herein by reference.
8. In pleading the terms of its alleged contract, Plaintiff is no more
SAIDIS,
FLOWER &
LINDSAY
Armau -ATuW
26 Wm High Sam
C,di,1,, PA
specific than to allege that Defendants authorized Plaintiff to "go forward" with an
undefined commercial land development project, that Plaintiff undertook to "move
forward" with such project, and that Defendants agreed to pay Plaintiff for "moving
forward." Complaint, paragraphs 6-7.
The terms of the "contract" alleged by Plaintiff are so vague, indefinite
and lacking in clarity as to be unenforceable.
WHEREFORE, Plaintiff respectfully requests the Court to sustain their
demurrer and dismiss Plaintiff s count for breach of contract.
COUNT 11-DEMURRER
(IN THE ALTERNATIVE)
10. Each paragraph set forth above is incorporated herein by reference.
11. According to Plaintiff's own averments, if they were trying to pare
down the budget, then by definition, the budget had not been met, and Defendants
had no obligation to "go with" Plaintiff.
12. Plaintiff has failed to plead an unconditional contractual obligation on
the part of either Defendant.
13. Plaintiff has consequently failed to state a claim upon which relief can
be granted, and the Court could not grant Plaintiff relief on its breach of contract
claim.
WHEREFORE, Defendants respectfully request the Court to sustain their
demurrer and dismiss Plaintiffs count for breach of contract.
COUNT III - DEMURRER
14. Each paragraph set forth above is incorporated herein by reference.
15. Under the facts alleged by Plaintiff, there was no consideration for any
alleged agreement.
WHEREFORE, Defendants respectfully request the Court to sustain their
demurrer and dismiss Plaintiff's count for breach of contract.
SAIDIS,
FLOWER &
LINDSAY
ATI00.VEVSAi•UW
26 West High Street
C Aisle, PA
COUNT IV - DEMURRER
16. Each paragraph set forth above is incorporated herein by reference.
17. In light of the lack of clarity of the terms of the alleged contract, the
lack of consideration, and the admitted failure to satisfy conditions to Defendants'
obligations, there is no "agreed-upon work" under the Contractor and Subcontractor
Payment Act. Consequently, there is no "contract" to be enforced under the Act and
the Act does not apply.
WHEREFORE, Defendants respectfully request the Court to sustain their
demurrer and dismiss Plaintiff s count for violation of the Contractor and
Subcontractor Payment Act.
COUNT V - (IN THE ALTERNATIVE)
MOTION FOR MORE SPECIFIC COMPLAINT
18. Each paragraph set forth above is incorporated herein by reference.
19. Several times in its complaint, Plaintiff refers to "actual services" or
"other services" it allegedly performed for Defendants. Complaint, paragraphs 22,
23, 39.
20. Concerning the other amounts it claims, Plaintiff has alleged precise
figures, down to the penny. See Complaint, paragraphs 14-15.
21. Under the circumstances, and particular] v in view of the vague and
SAIDIS,
FLOWER &
LIlVDSAY
ATfORNMINAW
26 Wm High Sweet
Cadi,[,, PA
conditional nature of Defendants' alleged contractual obligations, Defendants are
entitled to a more specific allegation of the amount(s) Plaintiff contends they owe for
"actual services" and "other services."
WHEREFORE, Defendants respectfully request the Court to sustain their
preliminary objection in the nature of a motion for more specific pleading, and order
Plaintiff to file an amended complaint specifying alleging the amount(s) Plaintiff
contends Defendants owe for "actual services" and "ether services" Plaintiff alleges it
performed.
aidis, Flower & Lindsay
Brian C. Caffrey, Esquire
Attorney 1D #42667
26 West I Iigh Street
Carlisle, Pennsylvania 17013 -?
Phone: 717.243.6222
Fax: 717.243.6510
Attorney for Defendants
5
CERTIFICATE OF SERVICE
I hereby certify that on January 13, 2006 I served a copy of the foregoing
preliminary objections by mailing it by first-class mail to Dean F. Piermattei, Esquire,
attorney for Plaintiff, addressed to him at Rhoads & Sinon, One South Market Square,
P.O. Box 1146, Harrisburg, PA 17108-1146.
M13nan . , .i Cfrey
SAIDIS,
FLOWER &
LINDSAY
AlM1[1NNEYSALUW
26 West High Street
Cadisle. PA
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CASE NO: 2005-06348 P
SHERIFF'S RETURN - REGULAR
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MCCOY BROS INC
VS
DIEHL DONALD ET AL
BRIAN BARRICK , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
DIEHL DONALD the
DEFENDANT at 1155:00 HOURS, on the 15th day of December-, 2005
at 4 EAST HIGH STREET _
CARLISLE, PA 17013 by handing to
DONALD DIEHL _
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 18. 00
Service 4. 80
Affidavit . 00
Surcharge 10. 00 R. Thomas Kline
32. 00
80
12/19/2005
RHOADS & SINON
Sworn and Subscribed to before By:
me this ? l 4_ day of -Deputy Sheriff
SHERIFF'S RETURN - REGULAR
CASE NO: 2005-06348 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MCCOY BROS INC
VS
DIEHL DONALD ET AL
BRIAN BARRICK , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
DIEHL SUZANNE the
DEFENDANT , at 1155:00 HOURS, on the 15th day of December-, 2005
at 4 EAST HIGH STREET
CARLISLE, PA 17013 by handing to
DONALD DIEHL, HUSBAND OF SUZANNE DIEHL
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
So Answers:
OOOO
R. Thomas Kline
12/19/2005
RHOADS & SINON
Sworn and Subscribed to before By:
me this }l 1w
- day of
?L u J024 A.D.
/ Pro o a
Deputy Sher
Dean F. Piermattei, Esquire
Attorney I.D. No. 53847
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 05-6348 Civil Term
PLAINTIFF'S RESPONSE TO DEFENDANTS' PRELIMINARY
OBJECTIONS TO PLAINTIFF'S COMPLAINT
NOW COMES, McCoy Bros., Inc. ("McCoy Bros.") through its attorneys, Rhoads &
McCOY BROS., INC.
Plaintiff
DONALD DIEHL and
SUZANNE DIEHL
V.
Sinon LLP and Dean F. Piermattei and file the following Response to Defendants' Preliminary
Objections to Plaintiff's Complaint and aver the following in support thereof:
1. Admitted.
2. Denied in part. It is admitted that Plaintiff has alleged in its complaint that it had
an oral contract with Defendants calling for Plaintiff to commercially develop a piece of land.
However, it is specifically denied that the terms of the contract are not sufficiently specified in
the Complaint. Rather, when read, the Complaint sets forth the oral contract and specifies the
exact areas or work performed by McCoy Bros., and the specific amounts owed by the
Defendants as a result of their breach of the agreement.
594244.3
3. The allegations in this paragraph are admitted with the clarification that other
aspects of the parties' interactions are pled as well, and the portions cited in Defendants'
Preliminary Objections are only a partial quote.
4. The allegations in this paragraph are admitted with the clarification that other
aspects of the parties' interactions are pled as well, and the portions cited in Defendants'
Preliminary Objections are only a partial quote.
5. The allegations in this paragraph are admitted with the clarification that other
aspects of the parties' interactions are pled as well, and the portions cited in Defendants'
Preliminary Objections are only a partial quote.
6. Denied. It is specifically denied that Plaintiff's complaint alleges any conditions
on Defendants' obligation to pay Plaintiff to "go forward." Furthermore, it is specifically denied
that the development project was vaguely described.
COUNT TI-DEMURRER
7. Paragraphs 1-6 set forth above are incorporated herein by reference.
8. Denied. It is specifically denied that Plaintiffs pleading the terms of its alleged
contract are not specific enough to withstand a demurrer. Therefore, all allegations contained in
this paragraph are specifically denied. By way of further answer, McCoy Bros. has alleged the
specific activities it was authorized to perform which are the basis for its damages.
9. The allegations of this paragraph are a legal conclusion for which no responsive
pleading is required. To the extent a response is required, all allegations contained in this
paragraph are specifically denied for the reasons set forth above.
-2-
WHEREFORE, Plaintiff respectfully requests the Court to deny Defendants' demurrer.
COUNT 11-DEMURRER
(IN THE ALTERNATIVE)
10. Paragraphs 1-9 set forth above are incorporated herein by reference.
11. Denied. It is specifically denied that the budget had not been met, and it is also
specifically denied that Defendant had no obligation to "go with" Plaintiff.
12. The allegations of this paragraph are a legal conclusion for which no responsive
pleading is required. To the extent a response is required, all allegations contained in this
paragraph are specifically denied.
13. The allegations of this paragraph are a legal conclusion for which no responsive
pleading is required. To the extent a response is required, all allegations contained in this
paragraph are specifically denied.
WHEREFORE, Plaintiff respectfully requests the Court to deny the Defendants'
demurrer.
COUNT 111-DEMURRER
14. Paragraphs 1-13 set forth above are incorporated herein by reference.
15. Denied. It is specifically denied that under the facts alleged by Plaintiff, there
was no consideration for the agreement. Rather McCoy Bros. has pled the consideration as
development services being offered by McCoy and payment for said services being offered by
Defendants.
WHEREFORE, Plaintiff respectfully requests the Court to deny Defendants' demurrer.
-3-
COUNT IV-DEMURRER
16. Paragraphs 1-15 set forth above are incorporated herein by reference.
17. The allegations of this paragraph are a legal conclusion for which no responsive
pleading is required. It is specifically denied that there is a lack of clarity of the terms of the
contract, that there is a lack of consideration, and that there is an admitted failure to satisfy
conditions to Defendants' obligations. By way of further answer, Defendants knew exactly their
obligation to pay and as alleged, and the Defendants have made partial payment. To the extent
that any further response is required, all remaining allegations contained in this paragraph are
specifically denied.
WHEREFORE, Plaintiff respectfully requests the Court to deny Defendants' demurrer.
COUNT V- 1N THE ALTERNATIVE)
MOTION FOR A MORE SPECIFIC COMPLAINT
18. Paragraphs 1-17 set forth above are incorporated herein by reference.
19. Denied in part. It is admitted that in the Complaint, Plaintiff refers to "actual
services" or "other services" it performed for Defendants. It is specifically denied that Plaintiff
has made "several" references to this language in its complaint. By way of further answer,
Defendants have only partially quoted the allegations of the Complaint in an attempt to mislead
the Court.
20. Denied. The full allegations of the Complaint speak for themselves.
21. The allegations of this paragraph are a legal conclusion for which no responsive
pleading is required. It is specifically denied that Defendants' contractual obligations were
-4-
vague and conditional. By way of further answer, the invoices were attached to the Complaint
for the areas of services being claimed along with the dollar amounts.
WHEREFORE, Plaintiff respectfully requests the Court to overrule Defendants'
preliminary objection in the nature of a motion for more specific pleading; and deny Defendant's
request for an order that Plaintiff file an amended complaint specifically alleging the amount(s)
Plaintiff contends Defendants owe for "actual services" and "other services" Plaintiff performed.
Respectfully submitted,
RHOADS & SINON LLP
By: ) GC/!/?LCw?, /s?
Dean F. Piermattei, Esquire
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
-5-
CERTIFICATE OF SERVICE
I hereby certify that on this 1st day of February, 2006, a true and correct copy of the
foregoing Plaintiff's Response to Defendants' Preliminary Objections to Plaintiffs Complaint
was served by means of United States mail, first class, postage prepaid, upon the following:
Brian C. Caffey, Esquire
26 West High Street
Carlisle, PA 17013
Attorney for Defendants
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Dean F. Pier iattei, Esquire
Attorney I.D. No. 53847
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
McCOY BROS., INC.
Plaintiff
V.
DONALD DIEHL and
SUZANNE DIEHL
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 05-6348 Civil Term
PRAECIPE TO LIST PRELIMINARY OBJECTIONS FOR ARGUMENT
TO THE PROTHONOTARY:
Pursuant to Rule 1028(c) of the Cumberland County Rules of Civil Procedure, kindly list
the preliminary objections in the above-captioned matter for argument court.
Respectfully submitted,
RHOADS & SINON LLP
By:
?t7 F Piermattei, Esquire
' OneSeuth Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
Date: February 21, 2006
59733) .1
CERTIFICATE OF SERVICE
I hereby certify that on thiol zi> day of March, 2006, a true and correct copy of the
foregoing Praecipe to List Preliminary Objections for Argument was served by means of United
States mail, first class, postage prepaid, upon the following:
Brian C. Caffey, Esquire
26 West High Street
Carlisle, PA 17013
'
S
Dean F. Piennattei, Esquire
Attorney I.D. No. 53847
Cory A.Iannacone
Attorney I.D. No. 200530
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Defendants
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 05-6348 Civil Term
PRAECIPE FOR ENTRY OF APPEARANCE OF CORY A. IANNACONE
McCOY BROS., INC.
V.
Plaintiff
DONALD DIEHL and
SUZANNE DIEHL
TO THE CLERK:
Kindly enter the appearance of Cory A. Iannacone, Esquire and Rhoads & Sinon LLP as
counsel for Plaintiff, McCoy Bros., Inc., in the above-captioned matter.
Respectfully submitted,
Date: 22 ?06
RHO) SINON P
By:
or A.Iahnacone
Attorney I.D. 200530
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorney for Plaintiff
601253.1
CERTIFICATE OF SERVICE
I hereby certify that on this 22"6 day of March, 2006, a true and correct copy of the
foregoing Praecipe for Entry of Appearance of Cory A. Iannacone was served by means of
United States mail, first class, postage prepaid, upon the following:
Robert C. Saidis, Esquire
Saidis, Shuff, Flower & Lindsay
2109 Market Street
Camp Hill, PA 17011
Attorney for Defendants
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MCCOY BROTHERS, INC.,
PLAINTIFF
V.
DONALD DIEHL AND
SUZANNE DIEHL,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
05-6348 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO
PLAINTIFF'S COMPLAINT
BEFORE BAYLEY, J.
ORDER OF COURT
AND NOW, this "G-l day of March, 2006, the preliminary objections
of defendants, Donald Diehl and Suzanne Diehl, to the complaint of plaintiff, McCoy
Brothers, Inc., ARE DISMISSED.
Cory A. lannacone, Esquire
For Plaintiff
Brian C. Caffrey, Esquire
For Defendants
3. 3P-U'L
sal
a ;I ;'d 0-' `':'i1 iiG
McCOY BROTHERS, INC., IN THE COURT OF COMMON
PLEAS
Plaintiff CUMBERLAND COUNTY, PA
VS. : CIVIL ACTION
DONALD DIEHL and No. 05-6348 Civil Term
SUZANNE DIEHL,
Defendants JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO: McCoy Bros., Inc.
c/o Dean Piermattei, Esquire
Rhoads & Sinon
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
You are hereby notified to file a pleading in response to the enclosed new matter
and counterclaim within twenty days after service thereof, or a judgment may be entered
against you.
Saidis, Flower & Lindsay
SAIDIS,
FLOWER &
LINDSAY
26 Wm High Street
Carlisle, PA
Date: 4.1 ? .; qo
Brian C. Caffrey, EsquirV-'
Attorney ID #42667
26 West High Street
Carlisle, Pennsylvania 17013
Phone: 717.243.6222
Fax: 717.243.6510
Attorney for Defendants
McCOY BROTHERS, INC.,
Plaintiff
VS.
DONALD DIEHL and
SUZANNE DIEHL,
Defendants
IN THE COURT OF COMMON
PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION
No. 05-6348 Civil Term
JURY TRIAL DEMANDED
DEFENDANTS' ANSWER, NEW MATTER AND COUNTERCLAIM
Admitted.
2. Admitted.
Denied as stated. Defendants admit that they acquired a parcel of land
from McCoy Business Center and wanted to build an office building on the land.
Defendants deny that they "inquired of McCoy Bros. about moving forward with
development of the parcel." The fact is that Defendant Donald Diehl asked McCoy Bros.
what its price would be to build the office building. Furthermore, certain of the vendor-
real estate partnership's owners are also interested in McCoy Bros., Inc.
4. Defendants deny that the meeting was to be an "official kick-off meeting."
SAMIS,
FLOWER &
LINDSAY
nrrow?rsnruw
26 West High S[reet
Carlisle, PA
There was nothing to "kick off," inasmuch as McCoy Bros. and the Defendants had no
contractual relationship at that time. Defendants admit that the meeting was scheduled
for February 4, 2005 at 1:00 PM. The e-mail announcement of this meeting, upon which
Plaintiff's allegations are evidently based, speaks for itself. The e-mail was not
addressed to either of the Defendants. Defendants admit that a copy of the described e-
mail is attached to the complaint as Exhibit "A." Defendants deny that they requested
samples of "commercial lease advertising" for the building.
Defendants admit that a meeting occurred on February 4, 2005; however,
they deny that all of the topics listed in paragraph 4 were discussed at the meeting, and
deny that the meeting was a "kick-off meeting." "Identification of individuals who
would be working on the project" was not discussed. The only discussion of the budget
was the statement of Greg Kuhn, McCoy Bros.'s representative, that McCoy Bros. could
build an office building for Defendants for $66.00 per square foot. Defendants admit that
representatives from McCoy Bros., the Defendants, Mark Ritter from Members First
Credit Union, and architect Robert Cianfinchi were present. Defendants do not
remember whether a civil engineer was present, and therefore deny the allegation in that
respect. Furthermore, Pam Fisher of Dawood Associates, Inc. engineering firm was also
present.
6. Defendants deny that at the "kick-off meeting," which designation they
SAMIS,
FLOWER &
LINDSAY
nrrow,?vswrt.uw
26 }Lest High Street
Carlisle, PA
once again deny, "McCoy Bros. and the other professionals were given authorization
from the Defendants to move forward with development of the parcel and plans for
constructing the office building." The only thing that Defendants authorized McCoy
Bros. to do was to come up with a proposed price for constructing the building.
Furthermore, McCoy Bros. and Defendants had no contract or agreement at this point,
either written or verbal. Defendants admit that Pam Fisher discussed sending invoices to
her.
Defendants deny that McCoy Bros., along with any other professionals
"moved forward as requested by the Defendants with development relating to both the
parcel of land and the office building to be constructed." McCoy Bros. and Defendants
had no contract or agreement at this point, either written or verbal; there was no
"project." The only thing that Defendants authorized McCoy Bros. to do was to come up
with a proposed price for constructing the building. Whatever engineering or other work
McCoy Bros. and "the other professionals" did was not authorized by Defendants.
Defendants deny that subsequent to the kick-off meeting as a result of
services being performed by the architect, engineering fines and McCoy Bros., invoices
were submitted periodically to the Defendants and these invoices were paid. Paragraph 7
above is incorporated herein by reference. Defendants paid two invoices only, and only
because they thought the services described in the invoices were undertaken for the
purpose of bidding the project. Defendants ultimately stopped paying invoices received
from McCoy Bros. because they didn't know what the invoices were for, didn't authorize
the services, and didn't receive a quoted price from McCoy Bros. for constructing the
building that met their satisfaction. Defendants again deny that the meeting was to be a
"kick-off meeting."
9. Denied as stated. Defendants deny that they in any way requested the
"services provided." Defendants admit that McCoy Bros. produced aerial mapping.
Defendants admit the remaining allegations of paragraph 9. Paragraph 8 is incorporated
herein by reference.
10. Denied as stated. Defendants admit only that McCoy Bros. issued an
SAII)IS,
FLOWER &
LINDSAY
w w?rsa •uw
26 Wes, High St,,,t
Carlisle, PA
invoice on or about May 31, 2005 in the amount of $4,378.00, which appears, with
Defendants' check in payment of the invoice, as the first page of Exhibit "C" to the
complaint. The invoice to Defendants doesn't state what was it for, nor did Defendants
know what it was for. Defendants assumed it was for the purpose of bidding the project.
The invoice to Defendants refers only to "Ritchie Engineering." Defendants did not
receive the invoice from Ritchie Engineering to McCoy Bros. Defendants admit they
paid the invoice. Paragraphs 7 and 8 above are incorporated herein by reference.
11. Denied as stated. Defendants admit only that on or about June 30, 2005,
SAII)IS,
FLOWER &
LINDSAY
36 )West High Saeet
Carlisle, PA
representatives of McCoy Bros., as well as architect Robert Cianfichi, met with Donald
Diehl to present him with McCoy Bros.'s proposed costs for building the building. This
cost, $97.20 per square foot, exceeded by almost 50 % the cost McCoy Bros. had
previously told Mr. Diehl they would charge for putting up the building, $66.00 per
square foot. Defendants admit that Mr. Diehl indicated that $97.20 was a higher than he
had expected. This price was far higher than Mr. Diehl expected it would be, based on
McCoy Bros.'s Greg Kuhn's previous statement that McCoy Bros. would build the
building for $66.00 per square foot, just like it did with McCoy's own building.
Defendants deny that Mr. Diehl authorized McCoy Bros. to "continue with the project."
Defendants reiterate that there was no "project" at that point. Defendants admit that Mr.
Diehl told McCoy Bros. to obtain bids from different subcontractors. He did so because
$97.20 per square foot was entirely unsatisfactory to the Defendants as a price for putting
up the building. Defendants deny that Mr. Diehl told McCoy Bros.'s representatives to
contact Defendants' "financing person." Defendants deny that either of them represented
to anyone at the meeting that they would be "moving forward with the project."
Defendants certainly never indicated that they would be using McCoy Bros. after
unexpectedly hearing the proposed price of $97.20. Defendants deny that either of them
ever indicated that "the only contingency" would be if the project could not be brought in
on budget, they may need to delay construction until they could obtain a commercial
tenant. There was no budget on which to be brought, and no project. Defendants never
agreed to have McCoy Bros. build a building for them for $97.20, a price that was
entirely unacceptable to them. Of course Defendants wanted to obtain a commercial
tenant: They were proposing to put up a commercial office building. As for delaying
"the project," there was no project involving Defendants and McCoy Bros. Defendants
intended to "delay" any project until they were quoted a satisfactory and acceptable price
for building the building, and until they assented to an arrangement for building the
building. The statement, "If modifications could be made by using alternatives for
construction, and the budget could be met, the project could be met immediately," was
neither made nor agreed to by Defendants. After reasonable investigation, Defendants
are without knowledge or information sufficient to form a belief as to whether McCoy
Bros. ever examined any "construction alternatives" in an attempt to "fine tune the
budget." There was no budget; there was only an excessively expensive proposal that
was completely unacceptable to Defendants. Since McCoy Bros. didn't propose a price
that was acceptable to Defendants, McCoy Bros. didn't get Defendants' project.
Additionally, McCoy Bros. knew, shortly after this meeting, that Defendants intended to
seek prices from other firms.
12. Defendants admit that subsequent telephone conversations occurred.
SAIDIS,
FLOWER &
LINDSAY
i?ruw
26 West High Street
Carlisle, PA
Defendants deny that the conversations included discussions of "value engineering," a
term with which Defendants were and are unfamiliar, in any event, or McCoy Bros.'s
"efforts relating to a masonry alternative." McCoy did mention the possibility of
changing the brick, but was Eichelberger Construction, which eventually won
Defendants' project, not McCoy Bros., who gave Defendants a price for different brick.
Defendants deny that the parties "explored value engineering" in an attempt to "fine
tune" the budget. Paragraphs 7, 9 and 11 above are incorporated herein by reference.
Defendants admit the remainder of paragraph 12. The "party other than the owner" was
Robert Cianfinchi, the architect, whom Donald Diehl informed the Defendants would go
elsewhere for a builder.
13. After reasonable investigation, Defendants are without knowledge or
information sufficient to form a belief as to how or when McCoy Bros. learned that
Defendants had engaged another construction firm. Defendants admit they never
conveyed this fact directly to McCoy Bros.
14. Defendants admit that McCoy Bros. issued an invoice on July 31, 2005 in
the amount of $13,738.00. After reasonable investigation, Defendants are without
knowledge or information sufficient to form a belief as to whether the invoice was for
"past engineering fees," or how remotely in the past the fees were incurred, or even if the
fees were incurred. Defendants deny that any such fees were incurred "as per
Defendants' direction to move forward with the development of the building."
Defendants admit the remainder of paragraph 14. Paragraphs 7, 9 and 11 above are
incorporated herein by reference.
15. Defendants admit that McCoy Bros. submitted an invoice in the amount of
SAIDIS,
FLOWER &
LINDSAY
A?
26 West High Street
Carlisle, PA
$5,824.00 for site clearing, but deny that the site clearing had anything to do with
subsurface testing. Defendants admit they have refused to pay the invoice and that the
invoice is attached to the complaint. Defendants never ordered, requested, authorized or
agreed to pay for any such work. Defendants deny that they paid the civil engineer for
testing that was performed after the site was cleared.
I. BREACH OF CONTRACT
16. Paragraphs 1-15 set forth above are incorporated herein by reference.
17. Defendants deny that they had a verbal agreement whereby McCoy Bros.
would "move forward with developmental process" relating to both the parcel of land
purchased by the Defendants and the proposed office building, and that in exchange,
Defendants agreed to pay McCoy Bros. for the cost of services provided by McCoy Bros.
Defendants had no agreement of any kind with McCoy Bros. Although it was McCoy
Bros.'s hope and expectation, Defendants would not turn McCoy Bros. loose on a
construction project without having a price or contract with McCoy Bros.
18. Defendants deny that McCoy Bros, engaged the services of various
engineers and "construction people" in fulfilling the request of the Defendants for
development of the property. If McCoy Bros, did so without having any sort of contract
with Defendants, then it is responsible for its own conduct.
19. Defendants deny that they have made "partial payments" on some of the
SAWIS,
FLOWER &
LINDSAY
??raw
26 West High Scree[
Cdidl , PA
invoices submitted. This suggests there was a "whole" price or contract; there was no
such thing. Defendants admit that they have refused to pay the "outstanding invoices"
totalling $19,562.00. Defendants are without knowledge or information sufficient to
form a belief as to when or whether the charges were incurred. Paragraph 18 above is
incorporated herein by reference.
20. Defendants deny that McCoy Bros. performed all services necessary and
fulfilled all conditions necessary to receive payment on the outstanding invoices.
Defendants had no contract of any kind with McCoy Bros., and never ordered, requested,
authorized or agreed to pay for any such services. Defendants merely wanted a
satisfactory proposed price, which they never received.
21. Defendants deny that they never indicated, either directly or through their
counsel that McCoy Bros. did not properly perform the services. That McCoy Bros.
performed the services at all and now seek to force Defendants to pay for them is
improper. Defendants had no contract of any kind with McCoy Bros., and never ordered,
requested, authorized or agreed to pay for any such services.
22. Defendants deny that as a direct result of the breach of the agreement
between the parties, McCoy Bros. has incurred damages in the amount of $19,562.00,
plus interest on the outstanding invoices plus the value of McCoy Bros.'s actual services.
There was no agreement between the parties, and therefore nothing for Defendants to
breach. Paragraph 20 is incorporated herein by reference. Furthermore, Defendants have
no idea to what McCoy refers by the term "actual services," and therefore deny that any
such services were performed or have any value.
23. After reasonable investigation, Defendants are without knowledge or
SAIDIS,
FLOWER &
LINDSAY
26 West High S.... t
Carlisle, PA
information sufficient to form a belief as to what the invoices do or do not include, or as
to what McCoy Bros. means by "actual services." Defendants never requested that
McCoy Bros. do any work for them. McCoy Bros. is not entitled to recover any of the
amounts it claims. Paragraph 22 above is incorporated herein by reference.
WHEREFORE, Defendants request the Court to enter judgment in their favor and
against Plaintiff on Plaintiff's complaint.
II. UNJUST ENRICHMENT
24. Paragraphs 1-23 set forth above are incorporated herein by reference.
25. Defendants deny that McCoy Bros. provided valuable services to them to
allow them to develop their parcel and develop the office building they intended to
construct on the property. In fact, McCoy Bros.'s misrepresentation delayed Defendants
from commencing and completing their project.
26. Defendants deny that the reasonable value of McCoy Bros.'s services
exceeds $19,562.00. Defendants had no contract of any kind with McCoy Bros., and
never ordered, requested, authorized or agreed to pay for any such services. Defendants
merely wanted a satisfactory proposed price, which they never received. Furthermore,
the amount demanded is exorbitant and unreasonable.
27. Defendants deny that they have received significant benefit from the
services provided by McCoy Bros. and that Defendants have wrongfully refused to pay
McCoy Bros. for these services.
28. Defendants deny that they have been unjustly enriched by any services
SAIDIS,
FLOWER &
LINDSAY
A?? .aw
26 West High Street
Carlisle, PA
provided by McCoy Bros. in that they have refused to make payment to McCoy Bros.
notwithstanding repeated requests for the same.
29. Defendants deny that as a direct and proximate cause of such unjust
enrichment, which Defendants deny, McCoy Bros. has sustained damages in an amount
exceeding $19,562.00.
30. Defendants deny that injustice will result if recovery is denied to McCoy
Bros. McCoy Bros. is not entitled to any recovery. The instant suit constitutes injustice.
WHEREFORE, Defendants request the Court to enter judgment in their favor and
against Plaintiff on Plaintiff's complaint.
III. PROMISSORY ESTOPPEL
31. Paragraphs 1-30 set forth above are incorporated herein by reference.
32. Defendants deny that they promised to pay McCoy Bros. for the
reasonable value of its services relating to the development of the property and building.
If there had been a contract been between the parties, there would be no need for McCoy
Bros. to use terms like "reasonable value,"
33. Defendants deny that throughout 2005, while McCoy Bros. was working
pursuant to Defendants' request, Defendants made numerous requests for McCoy Bros.
to continue working on development of the building and land, knowing that it had been
charged for past services and would be charged for future services. Defendants made no
such requests. Defendants had no contract of any kind with McCoy Bros., and never
ordered, requested, authorized or agreed to pay for any such services. Defendants merely
wanted a satisfactory proposed price, which they never received.
34. Defendants deny that McCoy Bros, complied with these requests and
SAIDIS,
FLOWER &
LINDSAY
26 West High Smr t
Carlisle, PA
provided engineering and other construction services. Any engineering and other
construction services were not performed at Defendants' behest.
35. Denied. Defendants committed no actions and uttered no works "relating
to promises that McCoy Bros. would be paid for its services." Defendants paid two
invoices because they thought those were related to bidding the project, not as a blank
10
check for McCoy Bros. to do anything it pleased without informing Defendants. No
actions or words on the part of Defendants encouraged McCoy Bros. to do anything.
36. Defendants deny that McCoy Bros. substantially performed all of the
obligations owed to Defendants for the amounts it is seeking to collect. McCoy Bros.
owed no obligations to Defendants. Defendants had no contract of any kind with McCoy
Bros., and never ordered, requested, authorized or agreed to pay for any such services.
Defendants merely wanted a satisfactory proposed price, which they never received.
37. Denied. Defendants never requested any services from McCoy Bros. and
never represented that they would make payment for any such services. Consequently,
Defendants could not expect McCoy Bros. or others, reasonably or otherwise, to rely on
things that did not occur.
38. Denied. Paragraph 37 is incorporated herein by reference. Any reliance
on the part of McCoy Bros. was neither reasonable nor justifiable. Any services
performed by McCoy Bros., fully or otherwise, were not performed in accordance with
any request or promise of Defendants.
39. Defendants deny that as a direct and proximate result of Defendants'
SAIDIS,
FLOWER &
LINDSAY
AT "W
26 Wes, High Sum
Cadml,, PA
action and McCoy Bros.'s reliance thereon, Defendants have been benefitted at McCoy
Bros.'s expense by failing to pay McCoy Bros. $19,562.00 for the outstanding invoices
and failure to pay McCoy Bros. for other services rendered. Paragraphs 36-38 set forth
above are incorporated herein by reference. Defendants do not even know to what the
term "other services rendered" refers, and so deny the existence and value of any such
services, which, in any event, Defendants did not order, request, authorize, or agree to
pay for.
11
40. Paragraph sets forth a legal conclusion to which no answer is required.
Defendants made no representations or promises. Paragraphs 36-38 set forth above are
incorporated herein by reference.
41. Paragraph 40 set forth above is incorporated herein by reference.
WHEREFORE, Defendants request the Court to enter judgment in their favor and
against Plaintiff on Plaintiff s complaint.
IV. CONTRACT lsiel AND SUBCONTRACTOR PAYMENT ACT
42. Paragraphs 1-41 set forth above are incorporated herein by reference.
43. Denied. Paragraph 36 set forth above is incorporated herein by reference.
44. Denied. Paragraphs 14, 15 and 20 set forth above are incorporated herein
by reference.
45. Defendants deny that under the Contractor and Subcontractor Payment
Act, any payment by Defendants was due to McCoy Bros. at any time. Since there was
never any "construction contract" between Defendants and McCoy Bros., the provisions
of the Act relied upon by McCoy Bros. do not apply.
46. Paragraph 46 sets forth a legal conclusion to which no answer is required.
SAII)IS,
FLOWER &
LINDSAY
ATRIPNESS. .IAW
26 West High Street
Carlisle, PA
The provisions of the Act relied upon by McCoy Bros, do not apply in this case;
consequently, McCoy Bros. is not entitled to any interest, penalty or attorneys' fees. On
the contrary, inasmuch as Defendants will be the substantially prevailing parties under
the Act, it is they who will be entitled to an award of attorneys' fees from McCoy Bros.
WHEREFORE, Defendants request the Court to enter judgment in their favor and
against Plaintiff on Plaintiff s complaint, together with costs and an award of Defendants'
12
attorneys' fees incurred in Defending McCoy Bros.'s action under the Contractor and
Subcontractor Payment Act.
NEW MATTER
47. Each paragraph set forth above is incorporated herein by reference.
48. To the extent the amounts for which McCoy Bros. seeks to charge
Defendants are for services provided by McCoy Bros. for the medical group, any alleged
contract between McCoy Bros. and Defendants violates the statute of frauds and is
therefore void.
49. The amounts sought by McCoy Bros. for its alleged services are exorbitant
and unreasonable.
50. McCoy Bros. has not pleaded any fact or provision of law entitling it to
recover attorneys' fees.
WHEREFORE, Defendants request the Court to enter judgment in their favor and
against Plaintiff on Plaintiff's complaint, together with costs and an award of Defendants'
attorneys' fees incurred in defending McCoy Bros.'s action under the Contractor and
Subcontractor Payment Act.
COUNTERCLAIM
51. Each paragraph set forth above is incorporated herein by reference.
52. Prior to Defendants' purchase of the land in question, the McCoy Business
SAMIS,
FLOWER &
LINDSAY
raw
26 West High Street
Carlisle, PA
Center partnership was attempting to sell the land to a group of physicians, and McCoy
Bros. was seeking to build an office building on the land.
53. The physicians broke off their dealings with the McCoy Business Center
partnership and McCoy Bros.
13
54. McCoy Bros. deliberately set out to lure Defendants into dealing with it by
dangling before Defendants a price, $66.00 per square foot, which McCoy Bros. never
had any intention of meeting.
55. McCoy Bros. hoped that by luring Defendants into dealings with a
proposed price of $66.00 per square foot, a price that McCoy Bros. had no intention of
meeting, it could later charge Defendants at a rate of $97.20 per square foot.
56. McCoy Bros. knew that Defendants' experience was in the area of
residential real estate, not commercial real estate development.
57. McCoy Bros. intentionally attempted to capitalize on Defendants'
inexperience in the business of commercial real estate development in using a sort of
"bait and switch" tactic, first luring Defendants in with an attractive price of $66.00 per
square foot, and then, after making Defendants beholden to McCoy Bros., attempting to
get Defendants to pay a much higher price, $97.20 per square foot.
58. McCoy Bros., through its representatives' statements about building the
building for $66.00 per square foot, intentionally led Defendants to believe that any
initial services undertaken by it were for the purpose of bidding out the project so as to
construct a commercial building for $66.00 per square foot.
59. Defendants reasonably relied on McCoy Bros.'s representations in paying
SAIDIS,
FLOWER &
LINDSAY
26 West High Street
Carlisle, NA
McCoy Bros.'s invoice for $4,738.00.
60. McCoy Bros., on June 30, 2005, demonstrated that it was not then, and
never had been willing to build the building for $66.00 per square foot.
61. Defendants received no benefit at all from paying McCoy Bros. $4,738.00,
which they paid under false pretenses.
14
62. McCoy Bros. intended to induce Defendants to rely on McCoy Bros.'s
false statement to Defendants that it was willing to build the building for $66.00 per
square foot.
63. Defendants justifiably relied on McCoy Bros.'s false statement.
64. Defendants' reliance on McCoy Bros.'s false statement proximately
resulted in damages to Defendants of $4,738.00.
65. McCoy's Bros.'s actions were so outrageous as to demonstrate intentional
and willful conduct resulting from an evil motive, namely the motive to take advantage of
Defendants and charge them an exorbitant amount to construct the building.
WHEREFORE, Defendants demand judgment in their favor and against McCoy
Bros. in the amount of $4,738.00, plus punitive damages and costs, an amount which
does not exceed the jurisdictional limit requiring arbitration by local rule.
Saidis, Flower & Lindsay
Date: - t ( - 2906
Brian C. Caffrey, Esquirt/l/
Attorney ID #42667
26 West High Street
Carlisle, Pennsylvania 17013
Phone: 717.243.6222
SAIDIS,
FLOWER &
LINDSAY
A PNT21 k •A IpWT
26 West High Street
Carlisle, PA
Fax: 717.243.6510
Attorney for Defendants
15
VERIFICATION
I hereby verify that the facts set forth in the foregoing pleading are true and
correct to the best of my knowledge, information and belief. I understand that false
statements herein are subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to
unsworn falsification to authorities.
Date: / 7 S"
Date:
Donald Diehl
Suzanne Diehl
16
SAIDIS,
FLOWER &
LINDSAY
26 West High Street
Cadisle, PA
CERTIFICATE OF SERVICE
I hereby certify that on April 18, 2006 I served a copy of the foregoing pleading
by mailing it by first-class mail to Dean F. Piermattei, Esquire, attorney for Plaintiff,
addressed to him at Rhoads & Sinon, One South Market Square, P.O. Box 1146,
Harrisburg, PA 17108-1146.
17
Dean F. Piennattei, Esquire
Attorney I.D. No. 53847
Cory A. Iannacone, Esquire
Attorney I.D. No. 200530
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
McCOY BROS., INC.,
Plaintiff,
DONALD DIEHL and
SUZANNE DIEHL,
V.
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 05-6348 Civil Term
PLAINTIFF'S REPLY TO DEFENDANTS'
NEW MATTER AND ANSWER TO COUNTERCLAIM
NOW COMES, Plaintiff, McCoy Bros., Inc. ("Plaintiff' or "McCoy Bros."), by and
through its attorneys, Rhoads & Sinon LLP, and files the within Reply to Defendants' New
Matter and Answer to Counterclaim and avers the following in support thereof:
NEW MATTER
47. All Plaintiff's allegations contained in paragraphs I through 46 of its Complaint
are hereby incorporated by reference as though fully set forth herein.
48. Denied. The allegations contained in this paragraph constitute a conclusion of
law for which no responsive pleading is required. To the extent a response is required, Plaintiff
specifically denies all allegations contained in this paragraph.
606282.1
49. Denied. The allegations contained in this paragraph constitute a conclusion of
law for which no responsive pleading is required. To the extent a response is required, Plaintiff
specifically denies all allegations contained in this paragraph.
50. Denied. The allegations contained in this paragraph constitute a conclusion of
law for which no responsive pleading is required. To the extent a response is required, Plaintiff
specifically denies all allegations contained in this paragraph. By way of further answer,
attorney fees are recoverable pursuant to statutory law in this case.
WHEREFORE, Plaintiff requests this Court to enter judgment in its favor and against
Defendant on the Complaint and award Plaintiff damages sought in its Complaint.
COUNTERCLAIM
51. All Plaintiff s allegations contained in paragraphs 1 through 46 of its Complaint,
and paragraphs 47 through 50 of Plaintiffs Reply to Defendants' New Matter are incorporated
by reference as though fully set forth herein.
52. It is admitted that at one time McCoy Business Center partnership had discussions
with a group of physicians regarding possible acquisition of the land. Any construction of a
building would have been at the direction of the owner of the land not McCoy Bros.
53. Admitted.
54. Denied. It is specifically denied that McCoy Bros. deliberately set out to lure
Defendants into dealing with it by dangling before Defendants a price, $66.00 per square foot,
which McCoy Bros. never had any intention of meeting.
-2-
55. Denied. It is specifically denied that McCoy Bros. hoped that by luring
Defendants into dealings with a proposed price of $66.00 per square foot that it could later
charge Defendants at a rate of $97.20 per square foot. By way of further response, McCoy Bros.
never proposed a price of $66.00 per square foot.
56. It is admitted McCoy Bros. knew Defendants' had experience in residential real
estate.
57. Denied. It is specifically denied that McCoy Bros. intentionally attempted to
capitalize on Defendants' alleged inexperience in the business of commercial real estate
development in using a sort of "bait and switch" tactic, first luring Defendants in with an
attractive price of $66.00 per square foot, and then, after making Defendants beholden to McCoy
Bros., attempting to get Defendants to pay a much higher price, $97.20 per square foot. McCoy
Bros. never quoted $66.00 per square foot for the building. By way of further answer,
Defendants' plan and requirements for the building resulted in pricing of $97.20 per square foot.
58. Denied. It is specifically denied that McCoy Bros., through its representatives'
alleged statements about building the building for $66.00 per square foot, intentionally led
Defendants to believe that any initial services undertaken by it were for the purpose of bidding
out the project so as to construct a commercial building for $66.00 per square foot. By way of
further answer. Defendants were well aware that it would be paying various professionals, such
as McCoy Bros., for development services and did pay such professionals including McCoy
Bros.
-3-
59. Denied. After a reasonable investigation, McCoy Bros. is without knowledge or
information sufficient to form a belief as to what Defendants relied on, and therefore, those
averments are specifically denied. Proof thereof, if relevant, is demanded.
60. Denied. It is specifically denied that McCoy Bros., on June 30, 2005,
demonstrated that it was not then, and never had been willing to build out the building for $66.00
per square foot. By way of further response, at no point in time did McCoy Bros. and
Defendants agree that McCoy Bros. would build the building for $66.00 per square foot.
61. Denied. It is specifically denied that Defendants received no benefit at all from
paying McCoy Bros. $4,738.00. Furthermore, it is specifically denied that Defendants paid said
amount under false pretenses.
62. Denied. It is specifically denied that McCoy Bros. made any false statements to
Defendants or stated that it was willing to build the building for $66.00 per square foot.
63. Denied for the reasons set forth above.
64. Denied for the reasons set forth above. It is further denied that McCoy Bros.
caused Defendants to suffer any damages.
65. Denied. The allegations contained in this paragraph constitute a conclusion of
law for which no responsive pleading is required. To the extent a response is required, Plaintiff
specifically denies all allegations contained in this paragraph.
-4-
WHEREFORE, Plaintiff requests this Court to enter judgment in its favor and against
Defendant, dismissing Defendants' Counterclaim and awarding Plaintiff the relief sought in the
Complaint.
Respectfully submitted,
RHOADS & SINON LLP
By:
at eI' squire
A omey I.D. No. 53847
Cory A. Iannacone, Esquire
Attorney I.D. No. 200530
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
-5-
VERIFICATION
I, Dean F. Piermattei, Esquire, depose and state that I am the attorney for the Plaintiff,
that I am acquainted with the facts set forth in the foregoing and verify that the statements made
in Plaintiff's Reply to Defendants' New Matter and Answer to Counterclaim are true and correct
to the best of my knowledge. I understand that false statements herein are made subject to the
penalties of 18 Pa. C.S. § 4904, relating to unworn falsification to authorities.
F. attei, Esquire
387984.1
CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of May, 2006, a true and correct copy of the
foregoing Plaintiff's Reply to Defendants' New Matter and Answer to Counterclaim was served
by means of United States mail, first class, postage prepaid, upon the following:
Brian C. Caffrey
Saidis, Shuff, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
(717) 243-6222
c h
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33
IIm
ern
to
Dean F. Piermattei, Esquire
Attorney I.D. No. 53847
Cory A. Iannacone, Esquire
Attorney I.D. No. 200530
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
McCOY BROS., INC.,
Plaintiff,
V.
DONALD DIEHL and
SUZANNE DIEHL,
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 05-6348 Civil Term
PRAECIPE TO SUBSTITUTE VERIFICATION
TO: THE PROTHONOTARY
Kindly substitute the attached Verification for the Attorney Verification attached to
Plaintiff's Reply to Defendants' New Matter and Answer to Counterclaim, which was originally
filed on May 8, 2006.
Respectfully submitted,
RH S & SINO
By:
an . Piermatte3, Esquire
Attorney I.D. No. 53847
Cory A. Iannacone, Esquire
Attorney I.D. No. 200530
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
608387.1
i
a
CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of May, 2006, a true and correct copy of the
foregoing Praecipe to Substitute Verification was served by means of United States mail, first
class, postage prepaid, upon the following:
Brian C. Caffrey
Saidis, Shuff, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
(717) 243-6222
4LUW_-e_
VERIFICATION
Gregory Kuhn, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to
unworn falsification to authorities, that he makes this verification by its authority and that the
facts set forth in the Plaintiffs Answer to Defendants' New Matter and Counterclaim are true and
correct to the best of his knowledge, inforr
OD /" 4AJ q,nG
Date
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cn
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Dean F. Piermattei, Esquire
Attorney I.D. No. 53847
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
McCOY BROS., INC.
V.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 05-6348 Civil Term
DONALD DIEHL AND SUZANNE
DIEHL
Defendants
PRAECIPE TO DISCONTINUE
TO: THE PROTHONOTARY
Kindly mark the above-captioned action as satisfied, discontinued and ended, with
prejudice.
Respectfully submitted,
RHOADS & SINON LLP
By:
iermattei, Esquire
ttorney ID #53847
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
SAID WER & L SAY
By:
D E. sa, Esq ' e
ttorn
ey ID # 30 40
26 High Street
Carlisle, PA 17013
(717) 243-6222
Attorneys for Defendants
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