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HomeMy WebLinkAbout06-0716 Brigid Q. Alford, Esquire Supreme Court 1.0. #38590 Leonard Tintner, Esquire Supreme Court 1.0. #06859 BOSWELL, TINTNER, PICCOLA & ALFORD 315 North Front Street Post Office Box 741 Harrisburg, PA 17108-0741 (717) 236-9377 (Phone) (717) 236.9316 (Facsimile) brigidaiford@attnet (Email) Attorneys for Plaintiff UNITED RESTAURANT EQUIPMENT, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW v. NO. ddO(, - 7/b KAMAND CONSTRUCTION, INC. and ZURICH NORTH AMERICA, Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17073 1-800-990-9108 (717) 249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, uted tiene viente (20) dias de plazo al partir de la fecha de Ie demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas os sus objeciones a leas demandas en contra de su persons. Sea avisado que si usted no se defiende, la corte tomara medidas y peude entrar una order contra usted sin pervio aviso 0 notificacion y por cualquier queja or alivio que es pedido en la peticion de demanda. Usted peude perder dinero os sus propiedades 0 ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAzR RAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONE A LA ICINA CUYA DIRECCION SE ENCUENTRA ESCRIT A ABAJO PARA VERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17073 1-800-990-9108 (717) 249-3166 Brigid Q. Alford, Esquire Supreme Court 1.0. #38590 Leonard Tintner, Esquire Supreme Court 1.0. #06859 BOSWELL, TINTNER, PICCOLA & ALFORD 315 North Front Street Post Office Box 741 Harrisburg, PA 17108-0741 (717) 236.9377 (Phone) (717) 236-9316 (Facsimile) brigidalford@attnet (Email) Attorneys for Plaintiff UNITED RESTAURANT EQUIPMENT, INC" Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW v. NO. () t.. "It. Civi-I -r ~ KAMAND CONSTRUCTION, INC. and ZURICH NORTH AMERICA, Defendants COMPLAINT Plaintiff, United Restaurant Equipment, Inc., by its attorney, Brigid Q. Alford, Esquire, Leonard Tintner, Esquire, and Boswell, Tintner, Piccola & Alford, presents its Complaint against Defendants Kamand Construction, Inc. and Zurich North America as follows: The Parties 1. Plaintiff, United Restaurant Equipment Plaintiff, United Restaurant Equipment, Inc., is a Pennsylvania corporation with its principal place of business located at 2980 Jefferson Street, Harrisburg, Dauphin County, Pennsylvania 17105. 2. Defendant Kamand Construction, Inc. is a corporation incorporated under the laws of the Commonwealth of Pennsylvania, doing business in Pennsylvania, and with registered offices at 203 Lynndale Court, Mechanicsburg, Cumberland County, Pennsylvania. 3. Defendant, Zurich North America is an insurance company licensed to do business in the Commonwealth of Pennsylvania, with offices at Rossmoyne Industrial Park, Mechanicsburg, Cumberland County, Pennsylvania. The Contracts 4. On or about June 21, 2002, Plaintiff entered into a subcontract with Defendant Kamand Construction, Inc. to perform construction work as a subcontractor on a project designated as the Spring Grove Area High School/Cafeteria Addition at Spring Grove Area High School, Spring Grove, Pennsylvania. 5. As a condition of being awarded the bid as general contractor on the Spring Grove Area High School/Cafeteria Addition project, Defendant Kamand Construction was required to and did submit to the owner a payment and performance bond to assure that it would perform the construction contract and to assure that all subcontractors and material suppliers performing work or supplying materials on the project would be paid. 6. In the event of Kamand's failure to pay material suppliers and subcontractors, Defendant Zurich North America, by virtue of a surety bond issued on behalf of Kamand Construction, Inc. on the project, agreed to be liable for all such costs to the extent of the amount of the bond. -2- 7. Plaintiff, as a subcontractor on the project, was a third-party beneficiary of the surety bond. 8. Plaintiff performed work and provided equipment as a subcontractor on the project at issue in the amount in excess of $100,000.00. 9. To date, the unpaid balance due and owing from Defendant Kamand Construction, Inc. on this project is $49,903.64. COUNT I Plaintiff v. Kamand Construction. Inc. Breach of Contract 10. Plaintiff incorporates herein by references the allegations set forth in Paragraphs 1-9 above. 11. Despite demand from the Plaintiff, Kamand Construction, Inc. has failed to pay the balance due and owing. WHEREFORE, Plaintiff demands judgment against Defendant Kamand Construction, Inc. in the amount of $49,903.64, plus interest and costs of suit. COUNT II Plaintiff v. Kamand Construction. Inc. Uniust Enrichment 12. Plaintiff incorporates herein by reference the allegations set forth in Paragraphs 1-11, above. 13. The goods and services provided by Plaintiff to Defendant Kamand Construction, Inc. under the terms of the subcontract at issue have unjustly enriched said Defendant in the amount of $49,903.64, plus interest and costs of suit. -3- WHEREFORE, Plaintiff demands judgment against Defendant Kamand Construction, Inc. in the amount of $49,903.64, plus interest and costs of suit. COUNT III Plaintiff v. Zurich North America 14. Plaintiff incorporates herein by reference the allegations set forth in Paragraphs 1-13, above. 15. Plaintiff has complied with all notice obligations required under the terms of the surety bond issued by Defendant Zurich North America applicable to the project at issue, has initiated a claim under said bond, and has demanded payment of the unpaid balance from Defendant insurer. 16. Despite demand, Defendant Zurich North America has refused to pay Plaintiff any or all of the amount due and owing as a result of the general contractor's failure to pay. WHEREFORE, Plaintiff demands judgment against defendant in the amount of $49,903.64, plus interest and costs of suit. Respectfully submitted, By: Brigid . Alford, Esq e Supreme Court LD. 8590 Leonard Tintner, Esquire Supreme Court 1.0. #06859 BOSWELL, TINTNER, PICCOLA & ALFORD 315 North Front Street Post Office Box '741 Harrisburg, PA 17108-0741 Attorneys for Plaintiff Date: .zJ 3/o{P , VERIFICATION I, Michael Weiss, Vice-President of United Restaurant Equipment, Inc., hereby verify that the facts contained in the foregoing Complaint 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.SA S4904 relating to unsworn falsification to authorities. fl?~ ~ ~/ ~.-- Michael Weiss Date: ,J,)3p,. I .;;~ ~. ~. I':J 'r:~ tJ+- ",J 10_ v.J 0"' -D G"" -D __ -.-\) ~-, ... 0\ v\ ~ -~ -'"~ C3 n '. r--.> 0 (-.:-:. "n Co!' .-i -fl T .)"1 [,1 1:;:-;t:J I G' "':7 o CJ ... Wolff & Samson PC By: Robert T. Carlton, Jr Attorney No. 25050 Two Penn Center, Suite 1310 1500 John F. Kennedy Boulevard Philadelphia, PA 19102 (215) 567-2877 Attorneys for Defendant Zurich North America UNITED RESTAURANT EQUIPMENT, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff CIVIL ACTION-LAW v. NO. 2006-716 KAMAND CONSTRUCTION, INe. and ZURICH NORTH AMERICA ENTRY OF APPEARANCE .TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant Zurich North America in this civil action. Wolff & Samson PC By: Attorneys for Defendant Zurich North America " CERTIFICATE OF SERVICE I, Robert T. Carlton, Jr., certify that on February 24, 2006 I caused a true and correct copy of the foregoing Entry of Appearance to be served by first class mail upon: Brigid Q. Alford, Esquire Boswell, Tinter, Piccola & Alford 315 North Front Street P.O. Box 741 Harrisburg, P A 17108-0741 ~ /~~/1 Robert T. Carlton,tlr. 2 '\, Wolff & Samson PC By: Robert T. Carlton, Jr Attorney No. 25050 Two Penn Center, Suite 1310 1500 John F. Kennedy Boulevard Philadelphia, P A 19102 (215) 567-2877 Attorneys for Defendant Zurich North America UNITED RESTAURANT EQUIPMENT, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff CIVIL ACTION-LAW v. NO. 2006-716 KAMAND CONSTRUCTION, INC. and ZURICH NORTH AMERICA DEFENDANT ZURICH NORTH AMERICA'S PRELIMINARY OBJECTIONS Defendant Zurich North America ("Zurich") submits the following Preliminary Objections to Plaintiff United Restaurant Equipment, Inc.'s ("United") Complaint. 1. Preliminary Objection Pursuant to Pa.R.c.P. 1 028(a)(2) - Failure to Conform to Law or Rule of Court I. This is an action on a payment bond allegedly issued by Zurich North America as surety for Kamand Construction, Inc. ("Kamand") the alleged general contractor on a project for the construction of the Spring Grove Area High School/Cafeteria Addition Project ("the Project"). 2. Because United's claim against Zurich is based upon a writing, the payment bond, Pa.KC.r 1019(i) requires that United: "[S]hall attach of copy of the writing [to the Complaint], or the material part thereof, but if the writing or a copy is not accessible to the pleader, it is sufficient to so state, together with the reason, and to set forth the substance of the writing." 3. United's Complaint is in violation of Pa.RC.P. 1019(i) because Untied has not attached a copy of the payment bond to its Complaint or explained why the payment bond is not accessible to it. WHEREFORE, Defendant Zurich North America respectfully request that its Preliminary Objection pursuant to Pa.RC.P. 1028(2) be sustained and that Plaintiffs Complaint be stricken for failure to conform to law or rule of court. II. Preliminary Objection Pursuant to Pa.R.c.P. 1028(a)(3) - Insufficient Specificity In A Pleading 1. Pa.RC.P. (f) requires that "Averments of time, place and items of special damage shall be specifically stated." 2. United's Complaint does not specifically state the last day that it performed labor and/or supplied materials to Kamand on the Project. 3. This date is material information because suit on a payment bond for a public school project must be commenced within one year and ninety days from the last day on which the last labor was performed or material supplied by the person claiming against the bond. Centre Concrete Company v. AGI, Inc., 522 Pac 27, 559 A.2d 516 (1989); 42 Pa.C.S. 9 5523(3). In the absence of a specific statement of the date United last performed labor and/or supplied material, Zurich cannot determine if this action has been timely filed. 4. United's failure to specifically state the last date on which it performed labor or supplied material violates Pa.RC.P. 101 9(f) and as a result United's Complaint must be stricken. WHEREFORE, Defendant Zurich North America respectfully request that its Preliminary Objection pursuant to Pa.R.C.P. 1028(3) be sustained and that Plaintiffs Complaint be stricken 2 for failure to specifically state the last date on which it performed labor or supplied material to Kamand Construction, Inc. on the Project. Respectfully submitted, Wolff & Samson PC ~ ~'-' ft .r~ By: '<~-<' / ~~/c?i Robert T. Carlton, Jr. Attorneys for Defendant Zurich North America 3 CERTIFICATE OF SERVICE I, Robert T. Carlton, Jr., certify that on February 28, 2006 I caused a true and correct copy of the foregoing Preliminary Objections to be served by first class mail upon: Brigid Q. Alford, Esquire Boswell, Tinter, Piccola & Alford 315 North Front Street P.O. Box 741 Harrisburg, PA 17108-0741 ra4 7d;;h. Robert T. Carlto , r. 4 ',I ..J i"' '. SHERIFF'S RETURN - NOT FOUND CASE NO: 2006-00716 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND UNITED RESTAURANT EQUIPMENT IN VS KAMAND CONSTRUCTION INC ET AL R. Thomas Kline ,Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT KAMAND CONSTRUCTION INC but was unable to locate Them in his bailiwick. He therefore returns the COMPLAINT & NOTICE , NOT FOUND , as to the within named DEFENDANT , KAMAND CONSTRUCTION INC 203 LYNNDALE COURT MECHANICSBURG, PA 17055 DEFENDANT IS IN BANKRUPTCY. Sheriff's Costs: Docketing Service Not Found Surcharge 18.00 8.80 5.00 10.00 .00 41.80 So answers:,,,,~ ~;-;-/ ~... ~7 .-::-- / . ~:_~-c, -:.- . .:::::---'" R. Thomas Kline Sheriff of Cumberland County BOSWELL TINTNER PICCOLA ALFORD 02/14/2006 Sworn and subscribed to before me this fAX- day of )n",~ 20-0 (., SHERIFF'S RETURN - REGULAR CASE NO: 2006-00716 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND UNITED RESTAURANT EQUIPMENT IN VS KAMAND CONSTRUCTION INC ET AL RONALD HOOVER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ZURICH NORTH AMERICA the DEFENDANT , at 1400:00 HOURS, on the 8th day of February, 2006 at ROSSMOYNE INDUSTRIAL PARK MECHANICSBURG, FA 17055 by handing to DARLENE LENIG, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge So Answers: 6.00 8.80 .39 10.00 .00 25.19 -P/(2".':-~~. < .... .,/~A .r "'-;;;r::':..,t;''''''''"y...:~,.."... ,-~. ~ R. Thomas Kline 02/14/2006 BOSWELL TINTNER PICCOLA ALFORD Sworn and Subscribed to before By: CilR&/k Deputy Sheriff me this !.u- day of .D. , ~ Brigid Q. Alford, Esquire Supreme Court I.D. #38590 Leonard Tintner, Esquire Supreme Court ID. #06859 BOSWELL, TINTNER, PICCOLA & ALFORD 315 North Front Street Post Office Box 741 Harrisburg, PA 17108-0741 (717) 236-9377 (Phone) (717) 236-9316 (Facsimile) brigidalford@attnet (Email) Altorneys for Plaintiff UNITED RESTAURANT EQUIPMENT, INC., Plaintiff v. KAMAND CONSTRUCTION, INC. ZURICH NORTH AMERICA, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-716 CIVIL ACTION - LAW PRAECIPE TO WITHDRAW COMPLAINT AS TO DEFENDANT KAMAND CONSTRUCTION. INC.. ONLY TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please withdraw the Complaint as to Defendant Kamand Construction, Inc., ONLY. Date: 3).u./O{. , I Respectfully submitted, By: ~~-<o~ Brigid a. Alford, EsciJire Supreme Court LD. #38590 315 N. Front SI. P.O. Box 741 Harrisburg, PA 17108-0741 (717) 236-9377 Attorneys for Plaintiff CERTIFICATE OF SERVICE I do hereby certify that I have served a true and correct copy of the foregoing Praecipe to Withdraw Complaint as to Defendant Kamand Construction, Inc., by placing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Kamand Construction, Inc. 203 Lynndale Court Mechanicsburg, PA 17050 Robert T. Carlton, Jr. Two Penn Center, Suite 1310 1500 John F. Kennedy Blvd. Philadelphia, PA 19102 Counsel for Defendant Zurich North America ~~~.~ rigi Q. Alford, Es '. ire Dated: 31:2.2/0;' (~~ ~(>.-'J ~\ . <-<=., ~ .- (- <.J'\~ =<". . . --l ~ <-p.. Ui --'" cl () c-_ C) -:n :-:-.~ \\'1 -:....,:> ::>::1 'i'.' N <;'" (..1; .. Brigid Q. Alford, Esquire Supreme Court LD. #38590 Leonard Tintner, Esquire Supreme Court LD. #06859 BOSWEll, TINTNER, PICCOLA & ALFORD 315 North Front Street Post Office Box 741 Harrisburg, PA 17108-0741 (717) 236-9377 (Phone) (717) 236-9316 (Facsimile) brigidalford@att.net (Email) Attorneys for Plaintiff UNITED RESTAURANT EQUIPMENT, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO. 2006-716 ZURICH NORTH AMERICA, Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do SO, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17073 1-800-990-9108 (717) 249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, uted tlene viente (20) dias de plazo a1 partir de la fecha de /e demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas os sus objeciones a leas demandas en contra de su persons. Sea avisado que si usted no se defiende, la corte tomara medidas y peude entrar una order contra usted sin pervio aviso 0 notificacion y por cualquier queja or alivio que es pedido en la peticion de demanda. Usted peude perder dinero os sus propiedades 0 ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAzR RAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONE A LA ICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA VERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Car/isle, PA 17073 1-800-990-9108 (717) 249-3166 Brigid Q. Alford, Esquire Supreme Court ID. #38590 Leonard Tintner, Esquire Supreme Court 1.0. #06859 BOSWELL, TINTNER, PICCOLA & ALFORD 315 North Front Street Post Office Box 741 Harrisburg, PA 17108-0741 (717) 236-9377 (Phone) (717) 236-9316 (Facsimile) brigidalford@attnet (Email) Attorneys for Plaintiff UNITED RESTAURANT EQUIPMENT, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v, NO. 2006-716 ZURICH NORTH AMERICA, Defendant AMENDED COMPLAINT Plaintiff, United Restaurant Equipment, Inc" by its attorney, Brigid Q. Alford, Esquire, Leonard Tintner, Esquire, and Boswell, Tintner, Piccola & Alford, presents its Complaint against Defendant Zurich North America as follows: The Parties 1. Plaintiff, United Restaurant Equipment Plaintiff, United Restaurant Equipment, Inc., is a Pennsylvania corporation with its principal place of business located at 2980 Jefferson Street, Harrisburg, Dauphin County, Pennsylvania 17105. 2. Kamand Construction, Inc. is a corporation incorporated under the laws of the Commonwealth of Pennsylvania, doing business in Pennsylvania, and with registered offices at 203 Lynndale Court, Mechanicsburg, Cumberland County, Pennsylvania. 3. Defendant, Zurich North America is an insurance company licensed to do business in the Commonwealth of Pennsylvania, with offices at Rossmoyne Industrial Park, Mechanicsburg, Cumberland County, Pennsylvania. The Contract 4. On or about June 21,2002, Plaintiff entered into a subcontract with Kamand Construction, Inc. to perform construction work as a subcontractor on a project designated as the Spring Grove Area High School/Cafeteria Addition at Spring Grove Area High School, Spring Grove, Pennsylvania. 5. As a condition of being awarded the bid as general contractor on the Spring Grove Area High School/Cafeteria Addition project, Kamand Construction was required to and did submit to the owner a payment and performance bond to assure that it would perform the construction contract and to assure that all subcontractors and material suppliers performing work or supplying materials on the project would be paid. 6. The surety bond is a written document, but Plaintiff does not have possession, custody or control of said bond; Plaintiff avers that Defendant Zurich North America is in possession of the bond. 7. Plaintiff last performed labor and/or supplied materials, pursuant to its subcontract with Kamand Construction, on November 26, 2002. -2- 8. I n the event of Kamand's failure to pay material suppliers and subcontractors, Defendant Zurich North America, by virtue of a surety bond issued on behalf of Kamand Construction, Inc. on the project, agreed to be liable for all such costs to the extent of the amount of the bond. 9. Plaintiff, as a subcontractor on the project, was a third-party beneficiary of the surety bond. 10. Plaintiff performed work and provided equipment as a subcontractor on the project at issue in the amount in excess of $100,000.00. 11. To date, the unpaid balance due and owing from Kamand Construction, Inc. on this project is $49,903.64. Plaintiff v. Zurich North America 12. Plaintiff put Defendant Zurich North America on notice that it was initiating a claim under the bond when it notified Zurich's agent on April 3, 2003. 13. Plaintiff has complied with all notice obligations required under the terms of the surety bond issued by Defendant Zurich North America applicable to the project at issue, has initiated a claim under said bond, and has demanded payment of the unpaid balance from Defendant insurer. 14. Despite demand, Defendant Zurich North America has refused to pay Plaintiff any or all of the amount due and owing as a result of the general contractor's failure to pay. -3- WHEREFORE, Plaintiff demands judgment against defendant in the amount of $49,903.64, plus interest and costs of suit. Respectfully submitted, Date: 3!2.l.!Ofp By: ? Brigia Q. Alford, squir Supreme Court 1.0. # 590 Leonard Tintner, Esquire Supreme Court 1.0. #06859 BOSWELL, TINTNER, PICCOLA & ALFORD 315 North Front Street Post Office Box 741 Harrisburg, PA 17108-0741 Attorneys for Plaintiff VERIFICATION I, Brigid O. Alford, Esquire, hereby state that 1 am the attorney for Plaintiff United Restaurant Equipment, Inc., and that said Plaintiff cannot make the verification to the foregoing Amended Complaint because the verification of Plaintiff cannot be obtained within the time necessary for this filing, and that I am authorized to make this verification on behalf of Plaintiff United Restaurant Equipment, Inc., and that the facts set forth in the foregoing Amended Complaint are true and correct upon my personal knowledge, information and belief. I understand that my statements are made subject to 18 Pa.C.S. S4904 providing for criminal penalties for unsworn falsification to authority. ~.z.~ Brigid O. Iford, Esquire . Date: 3J~/o\. I I CERTIFICATE OF SERVICE I do hereby certify that I have served a true and correct copy of the foregoing Amended Complaint by placing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Robert T. Carlton, Jr. Two Penn Center, Suite 1310 1500 John F. Kennedy Blvd. Philadelphia, PA 19102 Counsel for Defendant Zurich North America Date: -3/iJ..~ lab n ~-, n '-~:) , ~ '..:.' ., :?i: .-\ :c " ",,, rn Sa c;; - f":} '" J:,' ~;.') J ~I ~- ,. CJ ., -....-.:. - Wolff & Samson PC By: Robert T. Carlton, Jr. Attorney No. 25050 Two Penn Center, Suite 1310 1500 John F. Kennedy Boulevard Philadelphia, PA 19102 (215) 567-2877 Attorneys for Defendant Zurich North America UNITED RESTAURANT EQUIPMENT, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff CIVIL ACTION-LAW v. NO. 2006-716 ZURICH NORTH AMERICA Defendant DEFENDANT ZURICH NORTH AMERICA'S PRELIMINARY OBJECTIONS TO THE AMENDED COMPLAINT Defendant Zurich North America ("Zurich") submits the following Prelimmary Objections to Plaintiff United Restaurant Equipment, Inc. 's ("United") Amended Complaint. I. Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(2) - Failure to Conform to Law or Rule of Court I. This is an action on a payment bond allegedly issued by Zurich North America as surety for Kamand Construction, Inc. ("Kamand") the alleged general contractor on a project for the construction of the Spring Grove Area High School/Cafeteria Addition Project ("the Project"). 2. Because United's claim against Zurich is based upon a writing, the payment bond, Pa.R.CP 1019(i) requires that United: "[S]hall attach of copy of the writing [to the Complaint], 1 008016.1 - or the material part thereof, but if the writing or a copy is not accessible to the pleader, it is sufficient to so state, together with the reason, and to set forth the substance of the writing." 3. United's Amended Complaint is in violation ofPa.R.C.P. IOI9(i) because Untied has not attached a copy of the payment bond to its Amended Complaint or explained why the payment bond is not accessible to it 4. A copy of the bond is accessible to United by virtue of 8 P.S. S I 96(a)(l ) which provides: (a) The contracting body shal1 furnish a certified copy of any payment bond and the contract for which such bond was given to any person who makes an application for such copy and who submits an affidavit stating that: (I) He has furnished material or performed labor, for the completion of the work provided for in the contract; and that he has not been ful1y paid for such labor and material; 5. Thus a copy of the bond is available to United if only United would ask for it in accordance with the provisions of8 P.S. S 196(a)(l). WHEREFORE, Defendant Zurich North America respectful1y request that its Preliminary Objection pursuant to Pa.R.C.P. 1028(2) be sustained and that Plaintiffs Complaint be stricken for failure to conform to law or rule of court. WOLFF & SAMSON PC By: Robert T. Carlt // Z::' // ...---- v ,I ,;'~" f I ,,-. ,.' V , Jr. Attorneys for Defendant 2 1008016.1 '. ... CERTIFICATE OF SERVICE I, Robert T. Carlton, Jr., certify that on April 5, 2006 I caused a true and correct copy of the foregoing Preliminary Objections to the Amended Compalint to be served by first class mail upon: Brigid Q. Alford, Esquire Boswell, Tinter, Piccola & Alford 315 North Front Street P.O. Box 741 Harrisburg, PA 17108-0741 J :/ , ll-~1 /""6../' Robert T. Carlton 1r. CJ t '~; . -,~ ~ Brigid Q. Alford, Esquire Supreme Court I. D. #38590 Leonard Tintner, Esquire Supreme Court I.D. #06859 BOSWELL, TINTNER, PICCOLA & ALFORD 315 North Front Street Post Office Box 741 Harrisburg, PA 17108-0741 (717) 236.9377 (Phone) (717) 236.9316 (Facsimile) brigidalford@altnel (Email) Attorneys for Plaintiff UNITED RESTAURANT EQUIPMENT, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2006-716 ZURICH NORTH AMERICA, Defendant CIVIL ACTION - LAW PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS TO THE AMENDED COMPLAINT United Restaurant Equipment, Inc., through its attorneys, Brigid Q. Alford, Esquire, Leonard Tintner, Esquire, and Boswell, Tintner, Piccola & Alford, presents its Answer to Defendant's Preliminary Objections to the Amended Complaint as follows: 1. Admitted, with the clarification that the Amended Complaint for this action is a written document that speaks for itself. 2. Admitted, with the clarification that the Amended Complaint for this action is a written document that speaks for itself and that Pa.R.C.P. 1 019(i) is a written rule of civil procedure that speaks for itself. 4 3. Paragraph 3 sets forth a conclusion of law to which no response is required. To the extent a response may be required, the averments of this paragraph are denied. 4. Paragraph 4 sets forth a conclusion of law to which no response is required. To the extent a response may be required, the averments of this paragraph are denied. By way of further answer, 8 P.S. S 196(a)(1) is a written statute that speaks for itself. 5. Paragraph 5 sets forth a conclusion of law to which no response is required. To the extent a response may be required, the averments of this paragraph are denied. By way of further answer, contemporaneously with the filing of the within document, Plaintiff's counsel has provided Defendant's counsel with an Affidavit and request for a copy of the bond. WHEREFORE, United Restaurant Equipment, Inc,. respectfully requests that this Court deny Defendant's Preliminary Objections to the Amended Complaint. Dated: April d.-f , 2006 Respectfully Submitted, By: ;;{, Brigid . Alford, Esquir Supreme Court LD. N .38590 G. Edward Schweikert IV, Esquire Supreme Court LD. No. 81976 BOSWEll, TINTNER, PICCOLA & ALFORD 315 North Front Street Post Office Box 741 Harrisburg, PA 17108-0741 (717)236-9377 (telephone) (717) 236-9316 (facsimile) Attorneys for Plaintiff VERIFICATION I, Michael Weiss, Vice-President of United Restaurant Equipment, state upon personal knowledge or information and belief that the statements contained in the foregoing Plaintiff's Answer to Defendant's Preliminary Objections to the Amended Complaint are true and correct, based on my personal knowledge, information, and belief I understand that false statements herein are made subject to the penalties of 18 Pac C.S. S 4904 relating to unsworn falsification to authorities. ~~?- P MICHAEL WEISS Dated: April ~, 2006 CERTIFICATE OF SERVICE I do hereby certify that I have served a true and correct copy of the foregoing Plaintiff's Answer to Defendant's Preliminary Objections to the Amended Complaint by placing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Robert T. Carlton, Jr. Two Penn Center, Suite 1310 1500 John F. Kennedy Blvd. Philadelphia, PA 19102 Counsel for Defendant Zurich North America ~~d~ B id Q. Alford, quire Date: April .2.t/ , 2006 , -0 ,_I. PRAECIPE FOR T.TSTlNG CASE FOR ARGUMENT (Must be typewritten and submitted in dupUcate) TO TIIE PROTIIONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court -~_._--~-----.._-------.._----------------_..----_..----------------------------------- CAPTION OF CASE (entire caption must be stated in fUll) United Restaurant Equipment, Inc. (plaintiff) vs. Zurich North America (Defendant) No. 716 2006 Term I. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complain~ etc.): D~f~ndant's Preliminary Oejestieas to the Amended Complaint 2. Identify cOUDSel who will argue cases: (a) for plaintiff: Robert T. Carlton. Jr.. Wolff & Samson PC (Name and Address) Two Penn Ctr., Ste. 1310. 1500 JFK Blvd.. Phila. PA 19102 (b) for defendant Rrigil'i Q 2l1rrtrn J:t.f"'lCl!~.oll (NOme and Address) 315 N. Front st., P.O. Box 741, Harrisburg, 3. I will notify all parties in writing within two days that this case has been listed for argument ~;nt9r, Pic~ola & Alford PA 17108-0741 4. Argument Court Date: September 6, 2006 s6-/~ Robert T. Carlton, Jr. Print your name Date, Auqust 11. 2006 Attorney for Defendant (") c: s:: "'t:r;d :TIC' Z;c (i) 5~-~ rs. .___c ,- .,;~ ,.., z.. "..C Pc Z =< ....., = <= "'" >- c:::: c-, ~ :2." m- :-oF;; .0" aT -to X:ri ,:::>..D 2~O am ~ -< .l:" -0 :x '1? w N 'I V 37 United Restaurant Equipment, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. Zurich North America : NO. 06-716 CIVIL TERM ORDER OF COURT AND NOW, September 13, 2006, by agreement of counsel, the above-captioned matter is continued from the September 6, 2006 Argument Court list. Counsel is directed to relist the case when ready. BYili22 -...., Edgar B. Bayley, J. Court Administrator lkd 'v'iNV/\lASNN3d AlNn,r'l'\'1' '\J11 ,.,SIAln", . !\.J-,_"^." '~;'f JJ:J t 'fl hJ 20 :2 Wd 61 d3S 900Z AtNIONOHIOod aru. :IO 30!::!:lO{]:nl.:f .' - j.' Brigid Q. Alford, Esquire Supreme Court 1.0. #38590 Leonard Tintner, Esquire Supreme Court 1.0. #06859 BOSWEll, TINTNER, PICCOLA & ALFORD 315 North Front Street Post Office Box 741 Harrisburg. PA 17108-0741 (717) 236-9377 (Phone) (717) 236-9316 (Facsimile) brigidalford@att.net (Email) Attorneys for Plaintiff UNITED RESTAURANT EQUIPMENT, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2006-716 KAMAND CONSTRUCTION, INC. ZURICH NORTH AMERICA, Defendants CIVIL ACTION - LAW PRAECIPE TO WITHDRAW COMPLAINT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please withdraw the Complaint filed on or about February 6, 2006, as amended March 22, 2006 in the above matter, with prejudice. Respectfully submitted, By: Date: 0'1/' f lOb . Bri id . Alford, Es Supreme Court 1.0. 38590 315 N. Front St. P.O. Box 741 Harrisburg, PA 17108-0741 (717) 236-9377 Attorneys for Plaintiff I' CERTIFICATE OF SERVICE I do hereby certify that I have served a true and correct copy of the foregoing Praecipe to Withdraw Complaint by placing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Robert T. Carlton, Jr. Two Penn Center, Suite 1310 1500 John F. Kennedy Blvd. Philadelphia, PA 19102 Counsel for Defendant Zurich North America Date: qq jt II lat, 8 ,....., ~ c:::. <:::;:) ijjS: o;::r.. to U') ~~ Pi ", <:-;r) '""0 tV' - ;Bg ;?';c \.0 0 <: -0 :':;-i ,.-: ;?("" ,.;<l.'~f11 :x ,.) -,... ~C'; ;:.~ ()c- .PC .r:- 6rn .:2: -of ::< N ~ -<