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HomeMy WebLinkAbout02-1752 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. DAVID W. FRANCIS, ESQ. ATTORNEY I.D. #53718 114 NORTH SECOND STREET HARRISBURG, PA 17101 (717) 238-9300 FAX: (717) 238-9325 ATTORNEYS FOR CONSERVATIVE ENVIRONMENTAL SERVICES, INC. CONSERVATIVE ENVIRONMENTAL SERVICES, INC. Plaintiff V. CARLISLE AREA SCHOOL DISTRICT Defendant CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION - LAW DOCKET NO: to -17st-;L, Crty? C JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served by entering a written appearance personally, or by an 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 j udgment may be entered against you by the court without further notice for any money claimed in the complaint or for any claim or reliefrequested by the defendant. 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Ave. Carlisle, PA 17013 (800) 990-9108 HB:44090v1 3503-05 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las 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 por 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 anteriormente, el caso puede proceder sin usted y un fallo por 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 DEME LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Ave. Carlisle, PA 17013 (800) 990-9108 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By David . Francis, Esq. I.D. #53718 Anthony S. Potter, Esq. I.D. #75903 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Attorneys for Conservative Environmental Services, Inc. HB:44090vl 3503-05 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. DAVID W. FRANCIS, ESQ. ATTORNEY I.D. #53718 114 NORTH SECOND STREET HARRISBURG, PA 17101 (717) 238-9300 FAX: (717) 238-9325 ATTORNEYS FOR CONSERVATIVE ENVIRONMENTAL SERVICES, INC. CONSERVATIVE ENVIRONMENTAL SERVICES, INC. Plaintiff V. CARLISLE AREA SCHOOL DISTRICT Defendant CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION - LAW ? DOCKET NO: 6217,' ? l:tc?C JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff is Conservative Environmental Services, Inc. ("CES"). CES is a Pennsylvania Corporation with offices located in, Mechanicsburg, Pennsylvania. CES is an environmental remediation contractor. 2. Defendant is the Carlisle Area School District ("CASD"). CASD owns and/or operates the Swartz Intermediate High School and Senior High School in Carlisle, Pennsylvania. 3. Analytical Laboratory Services, Inc. ("ALSI") is an engineering company with offices located at 2521 North Front Street, Harrisburg. ALSI entered into a contract with CASD with respect to a project known as Phase I Renovations Carlisle School District Swartz Intermediate High School & Senior High School ("the project"). Upon information and belief, ALSI's contract with CASD included design phase and construction phase services. 4. At all times relevant hereto ALSI acted as an agent and representative of the CASD. HB:43474v1 3503-05 5. On or about September 18, 2000, CASD advertised the project for competitive bidding in accordance with the plans, drawings and specifications prepared by ALSI. 6. CES submitted a bid to perform the work in accordance with the contract documents. 7. Following submissions of bids, CES was identified as the lowest responsive and responsible bidder. 8. On or about June 21, 2001, CASD entered into a written contract with CES for the performance of the project work. A copy of the contract is attached as exhibit A and incorporated by reference. 9. The scope of work for the project included, among other things, certain asbestos abatement work, including the removal and disposal of certain pipe fitting and hanger insulation, transite panels, floor tile and associated mastic, blanket insulation and other asbestos containing materials, all in accordance with the contract documents. Swartz Intermediate High School Lower Level Pipe Tunnel 10. The contract specifications required CES to remove all non-fiberglass/non-foam fitting insulation, pipe hanger insulation and associated debris located in the Swartz Intermediate High School Lower Level Pipe Tunnel ("the tunnel work"). A copy of the specification describing this work is attached as exhibit B and incorporated by reference. 11. The pipe tunnel included several hundred asbestos-containing fittings and hangers which had to be removed. 12. The specification for the tunnel work did not require CES to utilize either glove bags or mini-containment systems during removal of the pipe fitting and hanger insulation. HB:43474v1 3503-05 2 13. CES based its bid for performance of the tunnel work upon the representations contained in the contract documents that glove bags and/or mini-containment systems would not be required. 14. When CES began to perform the tunnel work, ALSI directed CES to either utilize glove bags during the removal of the pipe fittings in the tunnel area, or--as a threat to ensure CES' compliance--to polywrap all of the walls and floors in the tunnel. 15. As a result of this direction, CES was required to perform extra and additional work, including supplying more glove bags and incurring significantly greater labor costs installing glove bags prior to removing the fittings. 16. Furthermore, during performance of the tunnel work, CES was frequently denied timely and reasonable access to the tunnel. Specifically, access to the tunnel was provided through other rooms and offices, such as for example, the nurses's office. CES was not authorized access through such rooms and offices so as to accommodate CES' planned sequence of construction. 17. As a result, CES' productivity was impacted, and it incurred additional costs. 18. CES also based its bid price upon representations that the work could be completed during the summer, when the schools were not in full session. 19. Due to no fault of CES, the project work was resequenced and rescheduled such that CES was required to perform certain work while school was in full session. 20. As a result of this impact, CES was required to perform extra and additional work. As an example, CES was required to construct an additional exhaust system for which it has not been compensated. HB:43474vl 3503-05 3 21. CASD is directly responsible to CES for the extra costs incurred by CES to perform the tunnel work at the direction of ALSI. Glove Bags and Mini-Containment Svstems 22. The project scope of work also included certain other pipe fitting and hanger insulation removal work in other areas of the project. 23. For such other areas, the specifications provided that CES could remove the pipe fitting via the glovebag method or via the use of a mini-containment system. A copy of this specification section is attached as exhibit C and incorporated by reference. 24. CES plan for the removal of such pipe fitting and hanger insulation was to use mini-containments. 25. During the course of the project, ALSI repeatedly directed CES to use both mini containments and glovebags for removal of all such pipe fittings. 26. As a result of this direction, CES was required to perform extra and additional work, including installation of approximately 40 glovebags where none were required by the contract documents. 27. CASD is directly responsible to CES for the extra costs incurred by CES for providing and installing the glovebags as mandated by ALSI. Transite Removal 28. During the project, CASD requested CES to provide a price to perform certain transite removal for a canopy at the Carlisle High School. 29. CES provided a price of $4000 to remove this transite in accordance with industry standards and the contract documents. HB:43474v1 3503-05 4 30. Once CES began work, ALSI instructed CES to perform extra and additional work including extensive post cleaning of the canopy substrate with wire brushes and scrappers. 31. CASD is directly responsible to CES for the extra costs incurred by CES' performing the post cleaning of the canopy substrate. Vibration Dampers 32. CES' scope of work required it to abate certain vibration dampers. 33. The contract documents did not mandate the use of mini-containment systems around entire air handling units while abating the vibration dampers. 34. CES' plan for this abatement included utilizing critical barriers and removing the vibration dampers "intact," which is a widely accepted industry practice and authorized by the specifications. 35. ALSI interfered with CES' plan by directing it to erect mini-containments around entire air handling units for abatement. 36. As a result of this direction, CES performed extra and additional work and supplied additional materials, all in excess of contract requirements. 37. CASD is responsible to CES for the extra costs incurred performing this work. Plastic Sheeting 38. Industry practice does not require an asbestos abatement contractor to cut up and double bag plastic following use in a containment area. 39. ALSI repeatedly directed CES to remove, cut up and double bag plastic sheeting as if it were a contaminated material. 40. Nothing in the contract documents required CES to remove, cut up and double HB:43474v1 3503-05 5 bag the plastic sheeting prior to disposal. 41. ALSI's direction required CES to perform extra and additional work, including cutting up and double bagging of sheeting prior to disposal. 42. CASD is responsible to CES for the extra costs attributable to this direction. Extra and Additional Cleaning 43. ALSI also frequently directed CES to perform work not required by the contract documents, such as removal of non-asbestos containing materials (e.g. fiberglass pipe insulation or dust) and repetitive cleaning of the same areas. 44. Nothing in the contract documents required CES to perform this extra and additional cleaning. 45. CASD is responsible to CES for the extra costs attributable to this direction. 46. CES has satisfied all conditions precedent to bringing this action. COUNTI BREACH OF CONTRACT 47. CES incorporates all of the above paragraphs as if fully set forth here at length. 48. CASD is responsible for all extra and additional work and materials demanded or otherwise required of CES beyond the requirements of the contract documents. 49. Despite demand, CASD has refused to issue payment to CES for the extra and additional work as described herein. 50. CASD's refusal to pay CES for the extra and additional work and materials is material breach of contract. 51. CES' damages caused by ALSI's direction is in excess of $45,000.00 HB:43474v1 3503-05 6 52. CES is entitled to be paid for the extra and additional work it performed and extra materials it supplied to this project. WHEREFORE, Conservative Environmental Services, Inc. demands judgment in its favor and against CASD in an amount in excess of $45,000 together with costs, fees and attorneys fees as permitted by law. COUNT II QUANTUM MERUIT 53. CES incorporates all of the above paragraphs as if fully set forth here at length. 54. At CASD's and/or its agent's request, CES provided labor and materials to the project. 55. CASD had notice of CES' performance and costs associated with CES' work. 56. CASD knew and reasonably expected to pay CES for the work performed by CES. 57. CASD has not paid CES for the full value of the work performed. 58. CASD will be unjustly enriched if it is not required to pay for the work performed by CES. 59. The value of the work performed by CES, but for which CASD has not paid CES is in excess of $45,000. 60. CES has satisfied all conditions precedent to bringing this action. HB:43474v1 3503-05 7 WHEREFORE Conservative Environmental Services, Inc. demands judgment in its favor and against CASD in an amount in excess of $45,000, together with costs, fees and attorneys fees as permitted by law. Date: April 8, 2002 POWELL, TRACTHMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. By: David W. Fyfincis`" Atty I.D o. 53718 Anthony S. Potter Atty I.D. No. 75903 Attorneys for Conservative Environmental Services, Inc. HB:43474vl 3503-05 g CONTRACT This Contract is executed this 21st day June 2001 by and between Carlisle Area School District "Owner" and Conservative Environmental Services, Inc., his, her, or its heirs, administrators, successors, or assigns, hereafter called "Contractor" WHEREAS OWNER has received proposals and has awarded a contract for the removal of asbestos-containing materials at the Carlisle Area School District to Contractor. WHEREAS, Contractor has given payment and performance bonds to the Owner with sufficient surety in the amounts required by the Owner which bonds are attached hereto. NOW THEREFORE THIS AGREEMENT WITNESSETH that for and in consideration of material promises, covenants and agreements of the parties hereto, and intending to be legally bound, the parties covenant, promise and agree as follows: THE WORK: The Contractor shall perform all the work required by the Contract Documents, which work generally includes and consists of the removal of asbestos-containing materials from the building structures and components identified in the drawings and specifications, disposal of all such materials removed, cleaning of contaminated areas, restitution of auxiliary areas and associated activities as set forth in more detail in the Technical Specifications for the Removal of Asbestos-Containing Materials from Phase Renovations Carlisle School District Swartz Intermediate High School & Senior High School dated September 18, 2000, and the following Addenda to those Technical Specifications: Addendum Number 1 dated October 25, 2000. Addendum Number 2 dated October 31, 2000. Addendum Number 3 dated November 1, 2000. Addendum Number 4 dated Nnvetnher R 7nnn TIME OF COMMENCEMENT AND COMPLETION AND LIQUIDATED DAMAGES: Contractor agrees to begin the work of this Contract no later than June 11, 2001 and to complete all of the work required by this Contract to the satisfaction and approval of the Owner in every respect on or before the completion dates set forth in the work schedule as indicated by the Owner. Contractor understands and agrees that it is imperative that the work be completed on or before its completion date. Contractor further understands and agrees that if the work is not completed on or before the completion date, the damages sustained by the Owner because of such delay will be uncertain and extremely difficult to ascertain, that the reasonable value of such damages is the sum of One a-d 86L9-1EL-LrL Rang ggoo6 m eLi:6o To 61 gnu Thousand Dollars ($1,000.00) for each calendar day not completed, and that any other possible remedies of Owner are inadequate. Therefore, if the required work is not completed on or before the completion date set forth in the schedule indicated by the Building Owner, Contractor agrees to pay Owner, or agrees to a deduction of any funds due Contractor from Owner, liquidated damages in sum of One Thousand Dollars ($1,000.00) for each calendar day thereafter until the work is completed. The required damages provided for herein are intended as compensation for Owner's actual damages and both parties agree that the liquidated damages sum is reasonable and does not constitute a penalty and shall under no circumstances be construed or interpreted as constituting a penalty. In the event that contractor, for whatever reason, does not complete the work before the specified completion date, and in the event that the school term commences before said completion, contractor shall not interfere with the operation of the school and shall not perform any work within one hour of the school day or in-service day, and shall further assure that any area being worked on is cleaned up for the period of the school day or in- service day. In the event the Owner shall approve or order an extension in the performance of the Contract, Owner shall not be liable to the Contractor in any manner for any expenses, damages, loss of profits, anticipated or otherwise, or any charges whatsoever arising out of an extension of any completion date of the work of either the Contractor or of any sub- contractor engaged in the project, or arising out of any hindrance or delay in the progress of the work from any cause whatsoever, whether such hindrance or delay be caused or attributable to the Owner, Project Manager, or other contractors or sub-contractors. All extensions approved or ordered shall be in writing and shall only be valid if in writing. Any such waiver of damages, including liquidated damages, shall be applicable only for the length of time of the actual extension. Owner shall pay Contractor in current funds for performance of the work, the Contract sum of One Hundred Sixty Eight Thousand Four Hundred Twenty Dollars ($168,420.00) payment to be made as set forth in the General Conditions, provided, however, that deductions from or adjustments to said sum shall be made under the circumstances and upon the basis set forth in the General Conditions. Contractor shall make no claim for loss of anticipated profits if the cost of any items or work actually ordered to be done shall be less than those set forth in the Contract Documents, drawings, or specifications or if any item or items set forth in the Contract Documents, drawings or specifications be entirely omitted. The invitation to bid and information for bidders, general conditions, specifications, drawings, and four (4) addenda issued prior to and all modifications issued after execution of this Contract, and or other documents, instruments and forms attached hereto or references to herein, including the bidders proposal which is on file at the E-d 86L9-TEL-GIG Ring gyoog 0 eLT:60 To bT 2nd offices of the Owner are hereby incorporated into and made part of this Contract to the same extant as if they are fully set forth herein. The term "Contract Documents" as used herein and in all of the documents and instruments described in this paragraph, shall mean and include all of the documents and instruments described in the paragraph. Contractor will not at any time suffer or permit any lien, attachment or other encumbrance of any kind, under any laws of this State, any other state, or the Federal Government, in favor of any person or persons whomsoever, to be put or remain on the building or premises, into or upon which any work is done or materials are furnished under this Contract. Contractor shall not put in any said building any materials to which he has not obtained absolute title. If any such lien, attachment or other encumbrance affecting Owner's building or premises is filed, Owner shall not be obligated to make any payments to Contractor for work done hereunder or otherwise, until such lien, attachment or other encumbrance is removed, and in the event that same is not removed, Owner may remove it at the expense, including legal fees, of Contractor. STIPULATION AGAINST LIENS Contractor agrees to waive and does hereby waive and relinquish all rights to lien upon any real estate and improvements owned by Owner. Contractor also expressly agrees that no lien shall be attached to any real estate and improvements owned by Owner either on behalf of the Contractor herein or on behalf of any sub-contractor, mechanics, journeymen, laborers, materialmen, or persons performing labor upon or furnishing materials and machinery for the project, and Contractor does hereby expressly waive all rights to any such lien under the laws of the Commonwealth of Pennsylvania for and on behalf of itself and all other such persons famishing labor and materials as aforesaid in any form or manner whatsoever in connection with this Contract. It is further agreed that this Stipulation Against Liens may be signed and recorded in the appropriate office in the county in which the work under this Contract is to be performed, and that the filing and recording of same shall be constructive notice of its contents and of the waiver of liens to all parties or persons whomever. Contractor, on request, will sign a separate Stipulation Against Liens Agreement, substantially consistent with the foregoing, for the purpose of filing of record. Contractor covenants and agrees to remedy, without cost to Owner, any defects which may develop within one (1) year from the date of completion of the work, as certified by the Project Manager, provided said defects, in the judgment of the Owner, or its successors having jurisdiction in the premises, were caused by defective or inferior materials and workmanship. FINAL PAYMENT Final payment shall be paid by the Owner to the Contractor when the work has been completed, the Contract fully performed, and final certificate for payment has been issued by the Project Manager. b'd 8GL9-1EL-LTL Ring ggoos m eLT:GO To bI 2nH TIME OF ESSENCE: All times and time limits issued herein and in the Contract Documents are of the essence. MODIFICATIONS TO CONTRACT: No modifications or changes to this Contract shall be made except by written instrument, duly executed by Owner and Contractor provided, however that this provision shall not limit or affect the right of Owner to proscribe the extent of changes and variances in the work as provided in the General Conditions. ASSIGNMENT: The Contractor shall not sublet, sell, transfer, assign or otherwise dispose of this Contract or any portion thereof, or of his right, title or interest therein, without the written consent of the Owner. BINDING EFFECT: This Contract shall be binding on the parties hereto, their heirs, executors, administrators, successors, and assigns. IN WITNESS. WHEREOF, the parties hereto have set their hands and seals the day and year aforementioned written, intending to be legally bound by this agreement. Carlisle Area School District Board Preci n (Title) ATTEST: Carlisle Area School District (Name of Corporation or Contractor) S-d 85L9-1EL-LTL R.Jna 3Zoos M e8T=s0 To bT 2nu (d) Contain the work area via the use of a containment system constructed of one (1) layer of six (6) mil. minimum polyethylene sheeting on the walls and ceilings. (e) Negative pressure shall be established in the work area. (f) Remove the floor tile and associated mastic. (g) The mastic shall be removed via the shot blast method. The use of chemical mastic removers shall only be used in closets, restrooms or stairways. The Contractor shall be responsible for turning the building over to the Owner free from all odors generated from the use of mastic removal agents. Floors shall be shot blasted to level surfaces with no gouges. Gouges shall be repaired to a level surface. The Owner's Asbestos Consultant and the Owner's Architect/Engineer shall review conditions of the floor. Any unacceptable condition shall be repaired by the Contractor at no expense to the Owner. (h) After the final clearance air criteria has been achieved and the work area barriers have been removed, the floors shall be thoroughly wet washed and HEPA vacuumed and ceiling tiles shall be replaced. The Contractor shall provide and install new ceiling tiles that match the existing ceiling tiles, for all ceiling tiles damaged by the abatement work. f) Remove all of the non-fiberglass/non-foam fitting insulation, pipe hanger insulation, and associated debris located in the Swartz Intermediate High School Lower Level Pipe Tunnel. (1) At a minimum: (a) Establish a regulated area (b) Seal all critical barriers with two individual layers of six (6) mil. minimum polyethylene sheeting. (c) Erect a decontamination chamber. (d) Negative pressure shall be established in the work area. (e) Remove the fitting and pipe hanger insulation. (f) Apply encapsulant. (g) Remove all visible asbestos-containing debris throughout the entire tunnel and remove enough soil so that final clearance soil samples yield results of less than one percent (<1%) asbestos via Polarized Light Microscopy (PLM) analysis. Final clearance soil samples shall be collected at a minimum of nine (9) locations randomly selected by the Air Monitoring Technician. g) Remove all of the blanket insulation and associated debris located in the Swartz Intermediate High School Lower Level Maintenance Room. (1) At a minimum: (a) Establish a regulated area. (b) Erect a decontamination chamber. (c) Seal all critical barriers with two (2) individual layers of six (6) mil. minimum polyethylene sheeting. (d) Contain the work area via the use of a containment system constructed of two (2) layers of six (6) mil. minimum polyethylene sheeting on the walls, ceilings and floors. (e) Negative pressure shall be established in the work area. (f) Remove the insulation blanket. (g) Apply encapsulant. (h) After the final clearance air criteria has been achieved and the work area barriers have been removed, the floor shall be thoroughly HEPA vacuumed. C. Asbestos removal work to be performed under "Base Bid": 1) Asbestos abatement to be performed in the Swartz Intermediate High School, including the Swartz Intermediate District Administration Area: a) Remove all of the non-fiberglass/non-foam fitting insulation, pipe hanger insulation and associated debris from the Swartz Intermediate High School, including the Swartz Intermediate District Administration Area. (1) At a minimum: (a) Establish a regulated area. (b) Seal all critical barriers with two individual layers of six (6) mil. minimum polyethylene sheeting. (c) Erect a decontamination chamber. (d) Carefully remove ceiling tiles, where necessary, to access the fitting and pipe hanger insulation. (e) Negative pressure shall be established in the work area. (f) Remove the fitting and pipe hanger insulation via the glovebag method or via the use of mini- containment systems. Where the glovebag method is used, drop cloths shall be placed under the glovebags. (g) The Owner will move non-stationery equipment and furniture a maximum of three feet (3') from all sides of fitting and pipe hanger insulation removal work. The Contractor shall provide the Owner sketches highlighting exactly where fitting and pipe hanger insulation removal work is going to take place so that the Owner can make the necessary arrangements for the movement of the equipment and furniture from those areas. The Contractor shall provide those sketches to the Owner no later than June 1, 2000. (h) Apply encapsulant. (i) All associated debris shall be HEPA vacuumed. WNW (j) After the final clearance air criteria have been achieved, ceiling tiles shall be replaced. The Contractor shall provide and install new ceiling tiles that match the existing tiles, for all ceiling tiles damaged by the abatement work. b) Remove all of the floor tile and associated mastic from the Swartz Intermediate District Administration Area Restrooms and Storage Room (see drawings). (1) At a minimum: (a) Establish a regulated area. (b) Seal all critical barriers with two individual layers of six (6) mil. minimum polyethylene sheeting. (c) Erect a decontamination chamber. (d) Contain the work area via the use of a containment system constructed of one (1) layer of six (6) mil. minimum polyethylene sheeting on the walls and ceilings. (e) Negative pressure shall be established in the work area. (f) The mastic shall be removed via the shot blast method. The use of chemical mastic removers shall only be used in closets or other areas too small to accommodate the use of shot blasting equipment. The Contractor shall be responsible for turning the building over to the Owner free from all odors generated from the use of mastic removal agents. Floors shall be shot blasted to level surfaces with no gouges. Gouges shall be repaired to a level surface. The Owner's Asbestos Consultant and the Owner's Architect/Engineer shall review conditions of the floor. Any unacceptable condition shall be repaired by the Contractor at no expense to the Owner. (g) After the final clearance air criteria has been achieved and the work area barriers have been removed, the floors shall be thoroughly wet washed and HEPA vacuumed. VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. Date: 2 (t W. SCOTT13URY -T I n r°„ ?" z -_ cz) POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN 8, LOMBARDO, P.C. DAVID W. FRANCIS, ESQ. ATTORNEY I.D. #53718 114 NORTH SECOND STREET HARRISBURG, PA 17101 (717) 238-9300 FAX: (717) 238-9325 ATTORNEYS FOR CONSERVATIVE ENVIRONMENTAL SERVICES, INC CONSERVATIVE ENVIRONMENTAL SERVICES, INC. Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION - LAW V. CARLISLE AREA SCHOOL DISTRICT Defendant DOCKET NO: 02-1752 Civil Term JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I accept service of the Complaint on behalf of Carlisle Area School District and certify that I am authorized to do so. (Date) es D. Flower, Jr., sq aidis, Schuff, Flower & Lindsa . 6 West High Street Carlisle, PA 17013 (Attorney for Carlisle Area School District) HB:44087vl 3503-05 N O c - ' ? -a ro r ..' a, - -n :J fn yc° w (D i cn CONSERVATIVE ENVIRONMENTAL In the Court of Common Pleas of SERVICES, INC., Cumberland County, Pennsylvania Plaintiff V. Civil Action - Law CARLISLE AREA SCHOOL DISTRICT, Docket No. 2002 - 1752 Defendant ANSWER TO COMPLAINT 1. Admitted. 2. Admitted. 3. Admitted in part and denied in part, as follows: ALSI is not an engineering company; ALSI provides laboratory and environmental consulting services. Its main office is located at 34 Dogwood Lane, Chambersburg, PA. ALSI did not provide construction phase services under its contract with Defendant; it did provide asbestos abatement air monitoring and project oversight services, as well as the asbestos design services. Construction services were performed by R.S. Mowery & Sons, Inc. 4. This argument is a conclusion of law, to which no responsive pleading is required. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. Swartz Intermediate wink School Lower Level Pi a Tunnel 10. Admitted. 11. Admitted. 12. Denied. The contract specifications for the tunnel work referred to in 112 of Plaintiffs complaint set forth only the "at minimum" abatement procedures, and CES was bound under the contract to comply with all "current Federal, State and Local regulations, codes and/or written procedures," and in the case of "different or conflicting minimums or levels of quality, the most stringent requirement" was to be followed. (Contract pp. 50, 69, 72-73). 13. Defendant lacks sufficient information to form a belief as to whether Plaintiff based its bid on only selected contract provisions to the exclusion of others. 14. Denied. ALSI made no "threats," and did not require Plaintiff to polywrap the tunnel floors; however, ALSI directed Plaintiff that unless glovebags were utilized the ceilings, walls and all pipes and surfaces within the tunnel, except the floor, would have to be polywrapped, to comply with OSHA Asbestos Standard 1926.1001(g)(4)(v), which provides that "[f]or all Class I jobs, all objects within the regulated area shall be covered with impermeable dropcloths or plastic sheeting which is secured by duct tape or an equivalent." 15. Denied. To perform all abatement work in full compliance with all applicable regulations was required by the Contract, and did not constitute extra or additional work. 16. Denied. Plaintiff was not denied reasonable access to any work areas; the departures from Plaintiffs planned sequence of construction (which it agreed to complete before the resumption of classes) resulted from delays caused by Plaintiffs own failure to provide sufficient staffing and equipment in working condition. 17. Denied. Any delays in completion of the work were attributable to Plaintiff's own failure to provide sufficient staffing and equipment in working condition. 18. Defendant lacks sufficient information to form a belief as to whether Plaintiff based its bid on any such alleged representations. 19. Admitted in part and denied in part. During construction and asbestos abatement, minor schedule changes occurred that did not impact project duration or hinder Plaintiff from timely performance of the contract. All schedule changes were coordinated at weekly meetings with Plaintiff and other contractors, and at no time did Plaintiff raise a concern that a change would affect its ability to complete the work on time. Rather, Plaintiffs failure to complete the work on time was wholly attributable to Plaintiffs refusal - despite consistent urging by ALSI - to devote sufficient staffing and to provide equipment in working condition. 20. Denied. Plaintiff was not directed by ALSI to perform extra or additional work beyond the Contract requirements, which mandated use of a negative air filtration system. 21. Denied. Plaintiffs abatement work in the tunnel was required by the Contract, and was not "extra." Glove Ram and Mini-Containment Systems 22. Admitted. 23. Denied. The Contract provision referred to in ¶ 23 of Plaintiff's complaint sets forth only the "at minimum" abatement procedures, and CES was bound under the contract to comply with all "current Federal, State and Local regulations, codes and/or written procedures," and in the case of "different or conflicting minimums or levels of quality, the most stringent requirement' was to be followed. (Contract pp. 50, 69, 72- 73). 24. Defendant lacks sufficient information to form a belief as to what was Plaintiffs plan for removal. 25. Admitted. 26. Denied. Plaintiff was not required to perform "extra" abatement procedures; CES was bound under the contract to comply with all "current Federal, State and Local regulations, codes and/or written procedures," and in the case of "different or conflicting minimums or levels of quality, the most stringent requirement" was to be followed. (Contract pp. 50, 69, 72-73). ALSI required Plaintiff to utilize both mini-containments and glovebags only as a result of Plaintiff's decision to double-suit and use a remote decontamination chamber rather than erecting a decontamination chamber for each individual mini-containment as specified in the "Pre-Abatements Preparations" section of the Contract. 27. Denied. Plaintiff incurred no "extra" costs not required by regulations and/or written procedures incorporated into the Contract. Transite Removal 28. Admitted in part and Denied in part. The precise task for which Plaintiff provided a price was the removal of the roofing material from the canopy; this roofing material contained transite or a transite-like product. 29. Admitted. 30. Denied. ALSI did not require the use of wire brushes, specifically; ALSI directed Plaintiff to remove all roofing material down to the surface of the canopy deck/substrate, and the wire-brush method selected by Plaintiff was deemed appropriate. 31. Denied. Plaintiff was required to remove all roofing material from the canopy substrate; this requirement was not "extra" work or "post" cleaning. Vibration Dampers 32. Admitted. 33. Denied. The Contract documents referred to in ¶ 33 of Plaintiffs complaint set forth only the "at minimum" abatement procedures, and CES was bound under the contract to comply with all "current Federal, State and Local regulations, codes and/or written procedures," and in the case of "different or conflicting minimums or levels of quality, the most stringent requirement" was to be followed. (Contract pp. 50, 69, 72-73). 34. Denied. Plaintiffs proposal to remove the vibration dampers "intact," by placing the units on a drop-cloth, wetting the dampers and removing them without any type of containment, was deemed inadequate by both the EPA and the PA Department of Environmental Protection and failed to comply with Contract requirement to apply the most stringent levels of quality required by regulation, code and/or written procedures. 35. Admitted in part and denied in part. ALSI rejected the proposed method of abating the vibration dampers as inadequate, and required Plaintiff, instead, to utilize either mini-containments, or else glovebags, if one could enclose the affected area. 36. Denied. Plaintiff was not directed to perform "extra" or "additional" work not required by the Contract, which mandated compliance with the most stringent levels of quality required by regulation, code and/or written procedures. 37. Denied. Plaintiff was not directed to perform "extra" or "additional" work not required by the Contract. Plastic Sheeting 38. Denied. Plastic sheeting used for abatement area enclosures must be double-bagged and disposed of as asbestos-containing waste, under EPA Model Asbestos Worker & Contractor/Supervisor Training Manual developed under U.S. EPA Cooperative Agreement No. CX 820760-01-0. 39. Admitted in part and denied in part. Cutting up the plastic sheeting was not required, except to the extent it was practically necessary in order to fit the sheeting into disposal bags. 40. Denied. The Contract requires compliance with the most stringent levels of quality required by regulation, code and/or written procedures, which includes the EPA Model Asbestos Worker & Contractor/Supervisor Training Manual. 41. Denied. Double-bagging and disposal of plastic sheeting material used for abatement area enclosures did not constitute extra and additional work. 42. Denied. Double-bagging and disposal of plastic sheeting material used for abatement area enclosures was required under EPA procedures incorporated into the Contract and did not constitute an "extra" cost. Extra and Additional Cleaning 43. Denied. Plaintiff was not directed by ALSI to re-clean any work areas that were free of visible asbestos-containing material, and removal of non-asbestos fiberglass pipe insulation was required only where such insulation was contaminated by the adjoining asbestos pipe-fitting insulation. 44. Denied. Removal of non-asbestos fiberglass pipe insulation was required by the Contract, where asbestos was visibly present on its surfaces. 45. The required removal of asbestos-contaminated fiberglass pipe insulation did not constitute extra costs. 46. This argument is a conclusion of law, to which no responsive pleading is required. Count I 47. Defendant incorporates by reference its answers set forth above. 48. Denied. Plaintiff was not directed to perform any extra or additional work not required by the Contract. 49. Admitted, that Defendant has refused Plaintiffs demands for extra payments above those provided under the Contract. 50. Denied. Defendant has not breached the Contract in any way. 51. Denied. Plaintiff suffered no legal damages. 52. Denied. Plaintiff did not perform any extra or additional work not required by the Contract. WHEREFORE, Plaintiff is entitled to no relief and Count I of its Complaint should be dismissed. Count II 53. Defendant incorporates by reference its answers set forth above. 54-60. Denied. Plaintiff submitted a bid and entered into a Contract with Defendant whereby Plaintiff bound itself to provide such labor and materials as it brought to the project. Defendant has made all payments as required under the Contract. Defendant is in no way unjustly enriched. WHEREFORE, Plaintiff is entitled to no relief and Count II of its Complaint should be dismissed. Dated: (/ ? J 0 6 Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY By: Thomas E. Flower, Esquire Supreme Court Id. # 83993 2109 Market Street Camp Hill, PA 17011 (717) 737-3405 Counsel for Defendant JUN-03-2002 MON 11:35 AM CASD ADMINISTRATION 7172406898 P. 02 CONSERVATIVE ENVIRONMENTAL SERVICES, INC., Pennsylvania Plaintiff V. CARLISLE AREA SCHOOL DISTRICT, Defendant In the Court of Common Pleas of Cumberland County, Docket No. 2002 -1752 Civil Action -.. Law VERIFICATION I, Robert C. Williams, hereby verify that the statements made in the foregoing Answer are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: 6 .z d By: { Robert C. Williams CONSERVATIVE ENVIRONMENTAL SERVICES, INC., Plaintiff V. CARLISLE AREA SCHOOL DISTRICT, Defendant In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Action - Law Docket No. 2002 - 1752 CERTIFICATE OF SERVICE AND NOW, this 3rd day of June, 2002, I, Thomas E. Flower, Esquire, of the firm of Saidis, Shuff, Flower and Lindsay, hereby certify that I this day served a true and correct copy of the foregoing Answer upon the party listed below via United States Mail, postage prepaid, addressed as follows: David W. Francis, Esquire Powell, Trachtman, Logan, Carrie, Bowman & Lombardo 114 North Second Street Harrisburg, PA 17101 Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY By:q Thomas E. Flower, Esquire Supreme Court ID #83993 2109 Market Street Camp Hill, PA 17011 (717) 737-3405 Attorney for Defendant ?- r_> } F- - '; -:r? ;-J -T i ??, - . C?7 : i y? i'..? - li?ij F:::_ _ . _l:i tl._ ?'..E _.? U C_3 C7 CONSERVATIVE ENVIRONMENTAL SERVICES, INC., Plaintiff V. CARLISLE AREA SCHOOL DISTRICT, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02-1752 Civil Tenn JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE COUNSEL TO THE PROTHONOTARY: Please withdraw the appearance of David W. Francis in the above-captioned case for Conservative Environmental Services and enter the appearance of James W. Kutz for Conservative Environmental Services. LOGAN, By Da d W. Francis 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Respectfully submitted, McNEES WALLACE & NURICK LLC B y ames W. u 100 Pine treet - P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5441 Dated: February 25, 2004 CERTIFICATE OF SERVICE I, the undersigned, Linda C. Sents, Secretary to James W. Kutz, Esquire, hereby certify that on this 27`h day of February, 2004, a true and correct copy of the foregoing document was served via United States Mail, First Class, postage prepaid, upon the following individual: James D. Flower, Jr., Esquire Saidis, Shuff, Flower & Lindsay 26 W. High Street Carlisle PA 17013 d C? Linda C. Sents r Y=r nil ;n Vi _, CONSERVATIVE ENVIRONMENTAL SERVICES, INC., Plaintiff V. CARLISLE AREA SCHOOL DISTRICT, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action No. 02-1752 Civil Term JURY TRIAL DEMANDED MOTION TO COMPEL ANSWERS TO INTERROGATORIES COMES NOW Defendant, Carlisle Area School District ("CASD"), by its attorneys, pursuant to Rule 4019 of the Pa. Rules of Civil Procedure, and in support of its motion avers the following: Plaintiff commenced the instant action by filing a complaint on April 9, 2002. 2. Defendant filed its answer on June 3, 2002. On or about February 25, 2004 Plaintiff changed counsel. 4. On September 1, 2005 Defendant served on Plaintiff its first set of interrogatories. A copy of the interrogatories is attached hereto as Exhibit "A." 5. To date, Defendant has not received any response to its interrogatories from Plaintiff. Plaintiff s response to Defendant's interrogatories is now five months overdue. SA ILS, FLOWER & LINDSAY ntt0 Ai•uw 26 We,t High Svrea C.,h,k, PA Counsel for Defendant has sought the concurrence of counsel for Plaintiff in the instant motion, speaking to attorney Kandice J. Giurintano, of McNees, Wallace & Nurick, LLC by telephone on March 8, 2006. Plaintiff s counsel concurs in the motion. To date, no judge of this Court has had occasion to rule on any other matters in this action. WHEREFORE, Defendant respectfully requests the Court to order Plaintiff to serve answers to Defendant's interrogatories within twenty days after service of the Court's order. Respectfully submitted, Saidis, Flower & Lindsay Date: , (fin 131 ?2-FAG e, By: )khan C. Caffrey, Esquiir Attorney ID #42667 26 West High Street Carlisle, Pennsylvania 17013 Phone: 717.243.6222 Fax: 717.243.6510 Attorney for Defendant SAIDIS, FLOWER & LINDSAY nrmmvEVSn t 26 Wes[ High Street C;adisle, PA ' CONSERVATIVE ENVIRONMENTAL IN THE COURT OF COMMON PLEAS SERVICES, INC., CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. Civil Action CARLISLE AREA SCHOOL DISTRICT, No. 02-1752 Civil Term Defendant JURY TRIAL DEMANDED PLAINTIFF'S FIRST SET OF INTERROGATORIES TO: James W. Kurz, Esquire McNees, Wallace & Nurick, LLC P.O. Box 1166 100 Pine Street Harrisburg, PA 17108-1166 You are requested to serve written, verified answers to the following Interrogatories within thirty days after service hereof, in accordance with the Pennsylvania Rules of Civil Procedure. INSTRUCTIONS In answering these interrogatories, you are required to furnish all information which is available to you, including that which has been obtained by and that which is now in the possession of your attorneys, employees, agents and other representatives. Insert your answers in the spaces provided, attaching additional pages as required for complete answers. SAIDIS In lieu of identifying documents, you may supply the documents, or true and correct SHUFF, FLOWER & LINDSAY copies thereof, with your answers to these interrogatories. The documents should be segregated ATTORNEYS•AT•EAW 26 W. High Street Carlisle, PA or otherwise identified to reflect the number of the interrogatory or interrogatories to which the document is responsive. Exhibit "A" Whenever any interrogatory calls for the identity of a document or communication as to which you claim privilege, include in the identification of such document or communication the fact of such claim of privilege and the basis asserted for such claim. This request is deemed to be continuing. You are required to serve supplemental and supply copies of any additional responsive documents as you become aware of them or they come into your possession or the possession of your attorneys or other agents or representatives, as the case may be. According to what provision(s) of the contract documents do you contend you were not required to either use glovebags or polywrap the ceilings, walls, pipes and surfaces of the pipe tunnels, as you allege in paragraph 12 of your complaint? SAIDIS SHUFF, FLOWER & LINDSAY ATrMMYS•AT•LAW 26 W. High Street Carlisle, PA 2. According to what provision(s) of federal statutes or regulations do you contend you were not required to either use glovebags or polywrap the ceilings, walls, pipes and surfaces of the pipe tunnels, as you allege in paragraph 12 of your complaint? 3. What specific provisions of the contract documents represent that glove bags and/or mini-containment systems were not required, as you allege in paragraph 13 of your complaint? SAIDIS SHUFF, FLOWER & LINDSAY ATTORNEYS•AT•LAW 26 W. High Street Carlisle, PA 4. According to what provision(s) of the contract documents do you contend you were permitted to double-suit and use a remote decontamination chamber rather than erect a decontamination chamber for each individual mini-containment? According to what provision(s) of federal statutes or regulations do you contend you were permitted to double-suit and use a remote decontamination chamber rather than erect a decontamination chamber for each individual mini-contaimnent? SAIDIS SHUFF, FLOWER & LINDSAY ATTORNEYS•AT•LAW 26 W. High Street Carlisle, PA With respect to paragraph 30 of your complaint, what substance(s) or material(s) did CES "post-clean" from the canopy substrate with wire brushes and scrapers? According to what provision(s) of the contract documents do you contend you were permitted to remove vibration dampers "intact," as alleged in paragraph 34 of your complaint? SAIDIS SHUFF, FLOWER & LINDSAY ATTORNEYS-AT-LAW 26 W. High Street Carlisle, PA 8. According to what provisionts) of federal statutes or regulations do you contend you were permitted to remove vibration dampers "intact," as alleged in paragraph 34 of your complaint? 9. Do you contend that either the EPA or the Pa. DEP specifically authorized you to remove vibration dampers "intact," as alleged in paragraph 34 of your complaint? SAIDIS SHUFF, FLOWER & LINDSAY ATrORNEYS•AT•LAW 26 W. High Street Carlisle, PA 10. According to what provision(s) of the contract documents do you contend you were not required to remove and double-bag plastic sheeting that had been used to enclose a containment area, as alleged in paragraphs 38-42 of your complaint? 11. According to what provision(s) of federal statutes or regulations do you contend you were not required to remove and double-bag plastic sheeting that had been used to enclose a containment area, as alleged in paragraphs 38-42 of your complaint? SAIDIS SHUFF, FLOWER & LINDSAY ATrORNEYS•AT•LAW 26 W. High Street Carlisle, PA 12. Concerning paragraphs 43-45 of your complaint, do you contend that ALSI directed you to clean areas that were free of visible asbestos-containing material or to remove uncontaminated fiberglass pipe insulation? 13. Why did CES perform any work it contends was not required by the contract documents, unnecessary or "extra"? SAIDIS SHUFF, FLOWER & LINDSAY A ()O YPAT•LAW 26 W. High Street Carlisle, PA 14. Does CES contend that the contract documents did not require CES to comply with federal and state regulations governing asbestos abatement and exposure? 15. If your answer to No. 14 is yes, what provision(s) of the contract documents support(s) your contention? SAIDIS SHUFF, FLOWER & LINDSAY AWORNEYS•AT•LAW 26 W. High Street Carlisle, PA 16. Does CES contend that the industry standards and practices referred to in the complaint are less stringent than the provisions of either state or federal regulations governing asbestos removal and/or exposure? 17. Are there any change orders, approved by ALSI, the School District or the architect, relating to the work CES performed that CES contends was "extra," unnecessary, or not required by the contract documents? SAIDIS SHUFF, FLOWER & LINDSAY ATTORNEYS-AT-LAW 26 W. High Street Carlisle, PA f i SAIDIS SHUFF, FLOWER & LINDSAY ATTORNEYS-AT-LAW 26 W. Nigh Street Carlisle, PA 18. If your answer to No. 17 is yes, identify each such change order by number, date or other distinctive feature. Date: By: Respectfully submitted, Saidis, Shuff, Flower & Lindsay Irian C. Caffrey, Esquire/ Attorney ID #42667 /U 26 West High Street Carlisle, Permsylvania 1701 Phone: 717.243.6222 Fax: 717.243.6510 Attorney for Defendant w and correct to the best of my knowledge, information and belief, and that as I hereby verify that the facts set forth in the foregoing answers to interrogatories are true VERIFICATION of Conservative Environmental Services, Inc. I am authorized to make this verification on its behalf. 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. Conservative Environmental Services, Inc. By: Title: SAIDIS SHUFF, FLOWER & LINDSAY ATr0RNEYS•AT•LAW 26 W. High Street Carlisle, PA a CONSERVATIVE ENVIRONMENTAL SERVICES, INC., Plaintiff V. CARLISLE AREA SCHOOL DISTRICT, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action No. 02-1752 Civil Term JURY TRIAL DEMANDED CERTIFICATE OF SERVICE: On this _L day of '*t __, 2005, I, Autumn L. Johnson, hereby certify that I served true and correct copy of the foregoing PLAINTIFF'S FIRST SET OF INTERROGATORIES via United States Mail, first-class, postage prepaid, addressed as follows: James W. Kutz, Esquire McNees, Wallace & Nurick, LLC P.O. Box 1166 100 Pine Street Harrisburg, PA 17108-1166 SAIDIS, SHUFF, FLOWER & LINDSAY By: /a17L{ A tumn L. Johnson SAIDIS SHUFF, FLOWER & LINDSAY AMRNEYS•AT•LAW 26 W. High Street Carlisle, PA i VERIFICATION I hereby verify that the facts set forth in the foregoing motion 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 unworn falsification to authorities. Date: tl?vt, 13, '?'2 a©` SAIDIS, FLOWER & LINDSAY 26 Wes[ High Sam Cadislc, PA CERTIFICATE OF SERVICE I hereby certify that on March 13, 2006 I served a copy of the foregoing motion on James W. Kutz, Esquire, attorney for Plaintiff, by causing same to be mailed by first-class United States mail to his address at McNees, Wallace & Nurick, P.O. Box 1166, 100 Pine Street, Harrisburg, PA 17108-1166. SAMIS, FLOWER & LINDSAY wuevswuw 26 Wes[ High Sweet Cadislc. PA 4 CONSERVATIVE ENVIRONMENTAL SERVICES, INC., Plaintiff V. CARLISLE AREA SCHOOL DISTRICT, Defendant RECEIVED MAR 1 4 M6 BY: IN THE COURT OF CO CUMBERLAND COUNTY. PENNSYLVANIA Civil Action No. 02-1752 Civil Term JURY TRIAL DEMANDED ORDER AND NOW, this k j It day of M u rj? , 2006, upon consideration of the uncontested motion of Defendant, Carlisle Area School District to compel answers to interrogatories, the motion is hereby GRANTED. Plaintiff is hereby ORDERED and DIRECTED to serve answers to Defendant's interrogatories within twenty days after service of this ORDER. James W. Kutz, Esq. McNees, Wallace & Nurick, LLC P.O. Box 1166 100 Pine Street Harrisburg, PA 17108-1166 Brian C. Caffrey, Esq. 26 W. High Street Carlisle, PA 17013 N BY THE COURT: brier: I,ISflr ?3,-! C Z :1 Wd 9 ! 8vw 900Z AbV,LlQN'o .LU'bd 2H1 d0 30'1 IC}-Tnu Conservative Environmental Services, Inc. vs Case No. 02-1752 Carlisle Area School District Statement of Intention to Proceed To the Court: Plaintiff, Conservative Environmental Services. Inc. intends to proceed with the above captioned matter. Print Name James W. Kutz Sign Name Date: 10/23/09 Attorney for Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I . Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, SSI Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule 230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served upon the following individual(s) in the manner indicated: VIA U.S. FIRST CLASS MAIL James D. Flower, Jr., Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 Dated: October 23, 2009 OF ? ?TARY 2009 OCT 2l AM 10: 17 CUMB,LT' r COUNTY PENNSYLVANIA