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HomeMy WebLinkAbout01-5477R. J. FISHER & ASSOCIATES, INC., Plaintiff VS. LOCKE PROPERTY COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 R. J. FISHER & ASSOCIATES, INC., Plaintiff LOCKE PROPERTY COMPANY, INC., Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NOTICIA 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 romar 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 pot el demandante puede set dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 R. J. FISHER & ASSOCIATES, : INC., Plaintiff VS. LOCKE PROPERTY COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COMPLAINT 1. Plaintiff, R. J. Fisher & Associates, Inc., is a Pennsylvania corporation with its principal office address at 1546 Bridge Street, New Cumberland, Cumberland County, Pennsylvania, 17070. 2. Defendant, Locke Property Company, Inc., is believed to be a Massachusetts corporation, with its principal office address at 46 Central Street, Manchester-By-The-Sea, Massachusetts, 01944. 3. On or about February, 2001, Plaintiff and Defendant entered into an oral agreement for professional engineering and planning services to be performed by Plaintiff on behalf of Defendant relative to its Golden Triangle project in Silver Spring Township, Cumberland County, Pennsylvania. 4. Based on this oral agreement and instruction by Defendant, Plaintiff commenced services and had two or three meetings with William Locke to discuss the status and various issues with the project prior to the execution of a written agreement. 5. A written agreement dated May 1, 2000 was eventually executed by William E. Locke, President of Locke Property Company, Inc., approving the written proposal by Plaintiff on or about March 23, 2001. See Exhibit "A" attached hereto and made a part hereof for a full and accurate copy of said agreement. 6. Plaintiff continued to provide professional services through May 31,2001 at which time services ceased due to nonpayment of prior invoices. 7. The amount owed by Defendant to Plaintiff is $20,688.86. Copies of the invoices are attached hereto and made a part hereof as Exhibit "B". 8. Pursuant to the written agreement, interest accrues at the rate of 1-1/2% per month on delinquent balances after 30 days from the invoice date. 9. Despite demand, Defendant has failed and refused to pay the aforementioned unpaid balance of $20,688.86 as of June 1, 2001. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in favor of the Plaintiff and against the Defendant in the amount of $20,688.86 plus continuing interest at the rate of 18 percent per annum plus costs of this proceeding. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Dated:~/ By: Craig ~. DieM, Esquire Attorney ID No. 52801 3464 Trindle Road Camp Hill, PA 17011-4436 (717) 763-7613 Counsel for Plaintiff 2 R. J. FISHER & ASSOCIATES, ' INC., Plaintiff VS. LOCKE PROPERTY COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW VERIFICATION I, Robert J. Fisher, President of R. J. Fisher & Associates, Inc., 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 false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: ~/~°Ai By: R. J. FISHER & ASSOCIATES, INC. Robert J. Fisher, President LAND DEVE. I.OPMENT · Prepare a Land Development Plan lbr a 400,000 ~1- ff. warehou,~ n Pr~p~e updated site ~ pl~ ~r build,g, ~king ~ sto~w~ ~ge~nt ~c~. Prep~ p~ ~d pro~ for on-site u~ties. ~cp~c sto~ter ~i~ ~d ~ge~t c~ ~d Cll~t co~tatiom ~d me~gs on site dasigm · Sub'sion ofL~ Dewlopment Pl~ to ~e M~ip~ty. · Pres~tiom at mu~c~ meet~gs to ~ess co~e~s. B. COMPENSATION The following are our esrlm~ted t~e for perforlning the above service~. ]~illlno wifl he based pa the services completed as of the dine of the invoice. All f~ will be ~-alid for services authorized and paid for in 2000. Costs for all subr~sion, prints, Mylar's and other egpenses will be paid or by the cheat and are not iml~ded in fi . rc~cw the fees for profcssioaal service, Otber ~rviccs requested which are not included in the above items will be reimbursed on aa hourly basis in accordance with the fee schedule listed below. A retainer in the amoum ors 3,000.00 will he due upon execution ofthis~ proposal. The retainer shell be applied to the ~ invoice for services on this project. Estimated Fee SUBDIVISION PLAN $15,000.00 LAND DEVELOPMENT PLAN $ 20,000.00 Fig, E SCI~EDUI .~ Engiacer VIII Engineer VIi Engineer VI Engineer V Engin~r IV Engineer III Engine~- II Engineer I Landscap~ Arch VI Landseap~ Arch V Land.scape Arch IV Landscape Arch L[I Landscape Arch. II $95.00/Hour $80.O0/l-lour $75.00/Hour $60.00/Hour $50.00/Hour $45.00/Hour $35.00/HOur $30.00/I-Iour $70.00/Hour $60.00/Hour $$5.00/I lout $50.00/Hour $45.00/I-/our CAD Designer VI CAD Dcsignt."r V CAD Desigl~er IV CAD Dc'sig~cr III CAD D~il=.mm' II CAD Designer I Survey Cn:w (2 pm'sons) Survey Crew (3 persons) $60.00/Hour $50.00/Hour $45.00/Ilour $40.00/l. lour $35.00/Hour $30.00/Hour $100_00/l-'lour $ ] $0_00/lqour C. Client shall provide all criteria nad full information as to the clients requir~ncnts fora the project; designate a person to act with authority on clients behalt'in respect to all aspects of the project; examine and respond promptly to consultants submissions; and give prompt written notice to consultant whenever he observes ar otherwise becomes aware of any defect in the work. D. Liability orr. he comukant tbr any set'vice pertbrmed under this contract shall limited to tim amount of the t~e charge. E. Thc provisions of the attached ExNbit 1 arc incorporated hereunto and made a pm of tim agreen~nt. If this proposal is acceptable, please sign thc enclosed copy o£this letter and return it to us. T-hank you for th~ opportunity to serve you. Robert J. Fisher PLS., PE. President Accepted this ~"~ day of By:_ ,,u~--- ~ ~r,~'~. Title: ,2000. CONTRACT BETWEEN LOCKE PROPERTY COMPANy and R.J'. FISHF, R & ASSOCIATES, INC. STAND.,LRD PROVISIONS OF CONTRACT FOR PROFESSIONAL SERVICES The client and consultant agree that the follow~ng provisions shall be part of their agreement: ]. Conaulta.qt shall not ~ liable For damage r~ulting fi.om the a~ions or inactiolls of governmental agencies, and consultant shall only act as an adviser in all governmental relations. 2. All fees and other chazges will be billed by weekly mid shall be due at thc lilac of billing unk..-~.,~ otherwise specified in this agr~.'ernent. The fee s~hedule included, as par~ ortho agreement shall be adjusted annually. 3. A larc,.payment PENALTY of one and ono-halfper ~nt per month, wi~ich is an annual rate o{'elghtI~'n per coot (lC%). shall bc applied to any unpaid balance, commencing thirty (30) days at'er the date of tile original invoice. 4, In the event thai any staking is destroyed by an act of Ged or parties other than cor~uitant, the cost of restaking shall be paid by client as extra work, provided such work is authorized by client. 5. The client shall pay the cos~ of checking and inspection fees, goverranental fees, mil-testing fees, aerial photography fees, title-company charges, blueprints and reproductions, and all other charges not specifically covered by the terms of this agreement. Any ti:~S or coats paid by the con.9.altant on behalf'of the client shall bo subj¢~ to a 1 OM handling lee. 6. In the event all or any portion of the work prepared or partially prepared by the consultant he .~tn-pendcd, ahab., doned terminated, the client shall pay the consultant for all fees, charges, and serviees provld~d fo~ thc project, not to exceed any coulYact limit ~-pecifigd herein. 7. In the event ot'litigatien, client agrees to pay to consultant interest on all past due balances at the ra'~e 17.~ per ar~um or the rate 2'./. per annum over thc mlerc~t costs actuall incurred bv cheat Y . consultant due to default whichever is more. 8. in the event client Mis to pay consultant within thirty 00) days aRer invoicos are rendered, cli~;t agr~ that col~sultant shall have the fight to ecmsider said default a total breach of this agre. e~ent and, upon written notice, the duties, obligations, and responsibilities of the consultant under this agreement are t~en terminated. 9. in the event that client institutes a suit against consultant because or'any failure or an alleged failure to perform, error, omission or negligence, and if such suit is not successfully prosecuted, clle:K agrees to consu]tant any and all cos'ts ofdeleense. - 10. All original papers m~d documants, and copies thereof, produced as a result of this contracg except~ dOeumcnts which ate required to be filed with public agencies, shall remain the property of the eonsuleant and may be used by constlltant without thc consent of client. They are not intended or represented to 1~ suitable for retie by the client or others on extensions oft,he project or on any other project. Any reuse without wriRen verification or adaptation by the consultant for the specified purposes intended will be at the client sole ri.ok and without liability or legal c',cposurc to the consultant; and client shall indemnify tad hold harmless consullanl from all claims damages~ I~$e~ and expcns~a including attoraoys fi.n.~ arising out of or resulting there fxom, Any such veritication or adaptation will ~ntitle consultant to further compensation at rat~s to i~ agreed upon by client and consultant. ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE R. J. Fisher & Associates, Inc. 1546 Bridge Street · New Cumberland, PA 17070 717-774-7534. FAX:717-774-7190 www. rjfisher.org Statement DATE 7/11/2001 TO: Mr. William E. Locke Locke Property Company 46 Central Street Manchester, MA 01944 AMOUNT DUE AMOUNT ENC. $20,688.86 DATE TRANSACTION AMOUNT BALANCE 12/31/2000 Balance forward 1,245.00 02/23/2001 02/23/2001 02/23/2001 02/23/2001 03/30/2001 04/13/2001 04/27/2001 05/04/2001 05/18/2001 05/25/2001 06/01/2001 05/18/2001 200032 Golden Triangle 7- 1NV #3622 PMT PMT PMT 1NV #3693 3,000.00 -865.00 -380.00 -3,000.00 6,475.59 CURRENT 0.00 4,245.00 3,380.00 3,000.00 0.00 6,475.59 [NV #3701 INV #3746 [NV #3756 [NV #3779 INV #3792 ][NV #3822 201055 Golden Triangle Pa DOT HOP- [NV #3780 7,155.47 1,237.09 1,546.86 2,989.41 0.00 493.54 790.90 13,631.06 14,868.15 16,415.01 19,404.42 19,404.42 19,897.96 20,688.86 1-30 DAYS PAST 31430 DAYS PAST 61-90 DAYS PAST OVER 90 DAYS DUE DUE DUE PAST DUE AMOUNT DUE 9,939.42 0.00 6,475.59 4,273.85 $20,688.86 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE R. J. Fisher & Associates, Inc. 1546 Bridge Street · New Cumberland, PA 17070 717-774-7534 · FAX:717-774-7190 www. rjfisher.org Invoice BILL TO Mr. William E. Locke Locke ProperS, Company 46 Central Street Manchester, MA 0194.4 P.O. NO. [ DATE- I! [NvoIc~ ~ 6/1/2001 II 3822 Due on receipt / 200032 Golden Triangle 7 I DESCRIPTION Protbssional Engineering, Planning, and Surveying Services rendered during the time period from 05/26/01 to 06/01/01 Project No. 200032 Golden Triangle 7 * Prepare erosion & sedimentation control plans. * Coordination with PaDOT to setup meeting on permit. , Followup with Township on PaDOT issues. Engineer VIII Engineer VI Postage or express mail federal express fee paid on behaif of chent - credit remaining $577.50 out of $3000.00 deposit QUANTITY RATE AMOUNT 95.00 70.00 26.66 34.38 -577.50 380.00 630.00 26.66 34.38 -577.50 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. [Total ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE R. J. Fisher & Associates, Inc. 1546 Bridge Street · New Cumberland, PA 17070 717-774-7534 · FAX:717-774-7190 www.rjfisher.org Invoice BILL TO I Mr William E Locke I LoCke Propert~ Company 46 Central Street Manchester, MA 01944 5 2512o01 Due on receipt Gol , Profi~ssional Engineering, Planning, and Surveying Services rendered during the time period from 05/19/01 to 05/25/01 Project No. 200032 Golden Triangle 7 DESCRIPTION QUANTITY RATE AMOUNT * Client consultations on site plan issues. * Revisions to Subdivision and Land Development Plans. * Followup on sanitary sewer issues. Engineer VI CAD Design [] Engineer V[] 26.75 70.00 4.25 40.00 4 95.00 -2,422.50 Credit $2422.50 out of $3000.00 deposit 1,872.50 170.00 380.00 -2,422.50 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE [----ora IT -I 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. $0.00 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE R. J. Fisher & Associates, Inc. 1546 Bridge Street · New CumberLand, PA 17070 717-774-7534 · FAX; 717-774-7190 www. rjfisher, org Invoice BILL TO Mr, William E. Locke Locke Property Company 46 Central Street Manchester, MA 0 944 DATE ] [ INVOICE # 5/18/2001 3779 P.O. NO. TERMS Due on receipt ........ ???__T } Professional Engineering, Planning, DESCRIPTION and Surveying Services rendered during the time period from 05/05/01 to 05/18/01 Project No. 200032 Golden Triangle 7 iClient consultations on site plan issues. Coordination with Township on sanitmy sewer pumping station issues. Revisions 1o Subdivision Plan per Township comments. Revisions to Land Development Plan per Township comments. Engineer VII1 Engineer VI Mileage mi. ~ $0.345/mile Prints 1.00 / each fee paid on behalf of client - Johnson Imaging Postage or express mail Intrest on Past Due Account.55 days 6 95.00 31 70.00 12 0.345 204 0.64 34.38 1.39 78.94 570.00 2,170.00 4.14 130.56 34.38 1.39 78.94 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. Total $2,989.41 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE R. J. Fisher & Associates, Inc. 1546 Bridge Street · New Cumberland, PA 17070 717-774-7534 · FAX:717-774-7190 www.rjfisher.org Invoice BILL TO Mr. William E. Locke Locke Property Company 46 Central Street Manchester, MA 01944 DESCRIPTION P.O. NO. TERM~S ~ PROJECT, Due on receipt , 200032_ ?~lden Trifgle ~ QUANTITY Prol~ssional Engineering, Planning, and Surveying Services rendered during the time period from 04/28/01 to 05/04/01 Project No. 200032 Golden Triangle 7 * Client consultations on site plan issues. * Presentation at Planning Commission meeting. * Followup on comments and begin plan revisions. * Consultations with Gannett Fleming on Flood plain issues. Engineer VI Engineer VllI Mileage mi. ~ $0.345/mile Interest on past due account - 69 days RATE 15.75 70.00 4 95.00 39 0.345 AMOUNT 50.90 1,102.50 380.00 13.46 50.90 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. Total *1,546.86 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE R. J. Fisher & Associates, inc. 1546 Bridge Street · New Cumberland, PA 17070 717-774-7534. FAX:717-774-7190 www. rjfisher, org Invoice BILL TO Mr. William E. Locke Locke Property Company 46 Central Street Manchester, MA 01944 P.O. NO. TERMS PROJECT Due on receipt 200032 Golden Triangle 7 DESCRIPTION QUANTITY RATE AMOUNT Professional Engineering, Planning, and Surveying Services rendered duimg the time period fi.om 04/14/01 to 04/27/01 Project No. 200032 Golden Triangle 7 * Client consultations on site plan issues. * Consultations with Township on sanitary sewer options. * Revise pumping station location. * Begin erosion and sedimentation control plan and coordination with Conservation District. CAD Design III Engineer VIII Engineer VI Mileage mi. ~ $0.345/mile Postage or express mail Interest on past due - 76 days 0.5 4 10.5 51 40.00 20.00 95.00 380.00 70.00 735.00 0.345 17.60 39.80 39.80 44.69 44.69 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. Total $1,237.09 -- ~ ~1 ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE R. J. Fisher & Associates, Inc. 1546 Bridge Street · New Cumberland, PA 17070 717-774-7534 · FAX:717-774-7190 www.rjfisher.or9 Invoice i BILL TO [Mr. Willimn I Locke Property Co~npany 46 Central Street Manchester, MA 01944 l DAI :~ --~ iN~)-OI~E ~ P.Q. NO. TERMS DESCRIPTION Due on receipt QUANTITY 200032 Golden Triangle 7 ] RATE AMOUNT Professional Engineering, Planning, and Surveyang Servmes rendered dmrng the tnne period from 103/21/01 to 04/13/01 l Project No. 200032 Golden Triangle Subdivision & Land Development Plans. * Client consultations and meetings on site plan issues. Prepare Final Subdivision Plans. Prepare Land Development Plan. Prepare street and utility plans and profiles. Prepare stormwater management design, calculations and report. Coordination with HRG on flood plain issues. ;ngineer Vgl i CAD Des gn V Engineer VI CAD Design gl Landscape Arch. VI I lntrest on Past Due Account. 90 days tee paid on behalf of client - 546 sq fi plain paper copy Pr nts 1.00 / each 21 4.5 50.5 11 5 226 95.00 1,995.00 55.00 247.50 70.00 3,535.00 40.00 440.00 70.00 350.00 304.09 304.09 57.88 57.88 1.00 226.00 $7,155.47 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE I-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. Total ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE[ HER~~ R. J. Fisher & Associates, Inc. 1546 Bridge Street · New Cumberland, PA 17070 717-774-7534 · FAX:717-774-7190 www.rjfisher.org Invoice BILL TO Mr. William E. Locke Locke Property Compm]y 46 Central Street Manchester, MA 01944 P.O. NO. Due on receipt 1200032 Golden Triangle 7 DESCRIPTION QUANTITY RATE AMOUNT Professional Engineering, Planning and Surveying services rendered during the time period from 02/24/01 to 03/30/01 Projecl No. 200032 Golden Triangle 7 * Client consultations and meetings on site design issues. * Prepare preliminary sketch plan. * Prepare preliminary grading plan. * Evaluate grading and stormwater issues. * Revise site sketch plan and grading per clients comments. * Field survey to check of storm sewer elevations. Engineer VIII Engineer VI Landscape Arch. VI 2 Man Survey Crew lee paid on behalf of client Intrest on Past Due Account. - 103 days 22 95.00 2,090.00 54 70.00 3,780.00 0.75 70.00 52.50 2 100.00 200.00 40.07 40.07 313.02 313.02 PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVOICE DATE. ~i ENGINEERING, PLANNING, SURVEYING & LANDSCAPE ARCHITECTURE [F1S~!~_R ~] R. J. Fisher & Associates, Inc. 1546 Bridge Street · New Cumberland, PA 17070 717-774-7534 · FAX:717-774-7190 www. rjfisher, org Invoice BILL TO Mr. wiiliam E. Locke Locke Property Company ,46 Central Street Manchester, MA 01944 DATE INVOICE Ct 5/18/2001 3780 P.O. NO. Due on receipt 201055 Golden Trim~gle... i DESCRIPTION Professional Engiaeering, Planning, and Surveying Services rendered during the time period from 05/01/01 to 05/t8/01 Project No. 201055 Golden Triangle Pa DOT HOP * Field survey to locate current lane stripping, pavement and utility locations. * Input survey data to update site base map. 2 Man Survey Crew CAD Design II CAD Design V Engineer 11 Engineer l Mileage mi. ~ $0.345/mile lntrest on Past Due Account.55 days QUANTITY RATE AMOUNT 4,5¸ 3.5 0.5 2 3 29 100.00 450.00 35.00 122.50 55.00 27.50 35,00 70.00 30.00 90.00 0.345 10.01 20.89 20.89 I PAYMENT DUE UPON RECEIPT. LATE PAYMENT FEE 1-1/2% PER MONTH AFTER 30 DAYS PAST INVO1CE DATE. L - otal '- $790.9d BLANK ROME COMISKY & MCCAULEY LLP By: ALEXANDER D. BONO Identification No. 25845 By: FRANK A. DANTE Identification No. 87888 One Logan Square Philadelphia, PA 19103 215-569-5500 Attorneys for Defendant Locke Property Company, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., Plaintiff, V. LOCKE PROPERTY COMPANY, INC., Defendant. NO. 01-5477 CIVIL ACTION - LAW ENTRY OF APPEARANCE TO: PROTHONOTARY Kindly enter an appearance for us as counsel for the Defendant, Locke Property Company, Inc. ~K R~ ~KY &fCAULEY LLP ~_lexandf D. Bono (P~. Id. 23-~45) / nk A. Dante (Pa. Id. 87888) e Logan Square Philadelphia, PA 19103 215-569-5500 215-569-5555 (fax) Attorneys for Defendant, Locke Property Company, Inc. CERTIFICATE OF, SERVICE It is certified that on February __, 2002 a copy of Entry of Appearance was served via first class mail and fax upon: Craig A. Diehl, Esquire Law Offices of Craig A. Diehl 3464 Trindle Road Camp Hill, PA 17011-4436 FRANK A. DANTE 116012.00601/20995517vl BLANK ROME COMISKY & MCCAULEY LLP By: ALEXANDER D. BONO Identification No. 25845 By: FRANK A. DANTE Identification No. 87888 One Logan Square Philadelphia, PA 19103 215-569-5500 Attorneys for Defendant Locke Property Company, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., Plaintiff, V. LOCKE PROPERTY COMPANY, INC., Defendant. NO. 01-5477 CIVIL ACTION - LAW LOCKE PROPERTY COMPANY, INC.'S PRELIMINARY OBJECTIONS TO COMPLAINT Defendant, Locke Property Company, Inc. ("LPC'), pursuant to Pennsylvania Rule 1028, raises the following preliminary objections to the Complaint of Plaintiff, R. J. Fisher & Associates, Inc. ("Fisher, Inc."). PRELIMINARY OBJECTION NO. 1: DEMURRER (RULE 1028(a)0)) 1. The Complaint fails to state a claim upon which relief can be granted because the alleged written contract on which Plaintiffseeks to premise its claim, on its face, was never agreed to by LPC or anyone on bchalfofLPC. The alleged written agreement attached to the Complaint as Exhibit "A' was signed with the counter offer terms: "to be replaced Standard/Form ASCE/Contract Documents." This constituted a cotmter-offer and not an acceptance of the proposed written contract. Thus, as a matter of law, a written contract was 116012.00601/20995388vl never formed between the parties. GMH Associates, Inc. v. Prudential Realty Group, CB, 752 A.2d 889, 899 (Pa. Super. 2000); Yarnell v. Almy, 703 A.2d 535, 538-39 (Pa. Super. 1997). PRELIMINARY OBJECTION NO. 2: INSUFFICIENT SPECIFICITY (RULE 1028{a)(3)) 2. The Complaint fails to plead with sufficient specificity to make LPC aware of the nature of Plaintiff's claims, and to afford LPC the opportunity to make a proper defense. Rule 1028(a)(3) allows for a defendant to object to a complaint that lacks specificity in order to give the defendant an opportunity to understand the allegations being made and to prepare a proper defense. Rule 1028(a)(3); Seghetti v. Heritage Resorts of Gettysburg, 19 Pa. D.&C. 4th 218, 221 (1993). PRELIMINARY OBJECTION NO. 3: FAILURE TO CONFORM TO A RULE OF COURT (RULE 1028(a){2)) 3. Plaintiff's Complaint fails to satisfy the requirement of Rule 1019(h) to specifically state whether the claim(s) made are based on an oral or written agreement. The Complaint alleges that both an oral and written contract existed, but fails to state which alleged contract provides the basis for the claim. Rule 1019(h). PRELIMINARY OBJECTION NO. 4: FAILURE TO CONFORM TO A RULE OF COURT (RULE 1028(a)(2)~ 4. The Complaint fails to satisfy the requirement of Rule 1020(a) to state each cause of action in a separate count containing a demand for relief. Plaintiff's Complaint does not separate the cause(s) of action into counts nor does it even state the nature of the cause(s) of action. Rule 1020(a). 116012.00601/20995388vl WHEREFORE, the preliminary objections of Defendant £PC should be sustained and the C°mplaint sh°uld be dismissed in its ~'nt~ety witl prejud~ j RA~~~ s~c~t~-s~ ed- ~ / Dated: February 20, 2002 ' /.~ i~'~~ ex; ide~lD. Bono (Pa. 1~. 25845) Fran~ ~.. Dante (Pa. Id. 87888) BLA [K ROME COMISKY & MCCAULEY LLP One ,ogan Square tPhil~ [elphia, PA 19103 i2 ,' 15< 59-5500 t215-569-5555 (fax) Attorneys for Defendant, Locke Property Company, Inc. 116012.00601/20995388vl CERTIFICATE OF SERVICE It is certified that on February'S, 2002 a copy of Locke Property Company, Inc.'s Preliminary Objections was served by first class mail and fax upon: Craig A. Diehl, Esquire Law Offices of Craig A. Diehl 3464 Trindle Road Camp Hill, PA 17011-4436 FRANK A. DANTE 116012.00601/20995388vl PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please li~t the within matter for the next Argnmm~nt Court. CAPTION OF CASE (entire caption must be stated in ~lll) R.J. FISHER & ASSOCIATES, INC. ( p1 ~intiff ) LOCKE PROPERIY COMPANY, INC. (Defer~ant) No. 01 Civil 5477 %R 2001 State m~tter to be argued (i.e., p]alntiff'sm~tion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Complaint. Identify counsel whowill argue case: (a) for p~mintiff: Craig A. Diehl, Esquire 3464 Trindle Road Address: Camp Hill, PA 17011 (b) far defer~mnt: Ar]dress: Alexander Bono, Esquire/ Frank A. Dante, Esquire One Logan Square Philadelphia, PA 19103 I will notif7 mll parties in writingwithin two days that this case has been listed for argument. 4. Argument Court Date: May 22, 2002 Attorn~ far 15Iaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., Plaintiff LOCKE PROPERTY COMPANY, INC.,: Defendant : NO: 01-Civil-5477 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date, a true and correct copy of the foregoing document was served upon the opposing parties by way of facsimile and United States First Class Mail, postage prepaid, addressed as follows: Alexander Bono, Esquire Frank A. Dante, Esquire One Logan Square Philadelphia, PA 19103-6998 Fax Number: (215) 569-5555 Date:~~2.-~ LAW OFFICES OF CRAIG A. DIEHL ~te~hani~ ~ I~o0rec~Leg~t~fSecretary 3464 Trindle Road Camp Hill, PA 17011 (717) 763-7613 R. J. FISHER & ASSOCIATES, INC., Plaintiff VS. LOCKE PROPERTY COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5477 CIVIL CIVIL ACTION - LAW PRAECIPE TO THE PROTHONOTARY: Kindly remove the above-captioned matter from the argumem list on May 22, 2002. The parties are attempting to amicably resolve their dispute. LAW OFFICES OF CRAIG A. DIEHL Craig A{] Diehl~ EsqUire Attorney ID No. 52801 3464 Trindle Road Camp Hill, PA 17011-4436 (717) 763-7613 Counsel for Plaintiffs R.J. Fisher & Associates, Inc. V Locke Property Company, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5477 CIVIL TERM ORDER OF COURT AND NOW, May 23, 2002, by agreement of counsel, the above-captioned matter is continued from the May 22, 2002 Argument Court list. Counsel is directed to relist the case when ready. XCraig A. Diehl, Esquire For the Plaintiff XAlexander Bono, Esquire Frank A. Dante, Esquire For the Defendant Court Administrator ld By the Court, PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sdm~itted Jm duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the n~:t ~t Court. CAPTION OF CASE (entire caption must be stated in ~]]) R.J. FISHER & ASSOCIATES, INC. ( pi aintiff) LOCKE PROPERTY COMPANY, INC. ( Defendant ) No. O1 Civil 5477 %R 2001 State matter to be argued (i.e., plaintiff's n~ption for new trial, defendant's d~,~zer to c~,~]aint, etc. ): Defendant's Preliminary Objections to Complaint. 2. Identify counsel who w~]] argue case: (a) for pi aintiff: ~ess: Craig A. Diehl, Esquire 3464 Trindle Road Camp Hill, PA 170].1 (b) for defeDd~nt: ;u~dress: Alexander Bono, Esquire/ Frank A. Dante, Esquire One Logan Square Philadelphia~ PA 19103 3. I w~ll notify all parties in writingwithin t~)days that this case has been listed for ~t. 4. ~t Court Date: January 8, 2003 Dated: Attorney fSr Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., : Plaintiff : : V. : LOCKE PROPERTY COMPANY, INC.,: Defendant : NO: 01-Civil-5477 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date, a tree and correct copy of the foregoing document was served upon the opposing parties by way of facsimile and United States First Class Mail, postage prepaid, addressed as follows: Alexander Bono, Esquire Frank A. Dante, Esquire One Logan Square Philadelphia, PA 19103-6998 Fax Number: (215) 569-5555; Date: LAW OFFICES OF CRAIG A. DIEHL 3464 Trindle Road Camp Hill, PA 17011 (717) 763-7613 R.]. FISHER & ASSOCIATES, INC. V. LOCKE PROPERTY COMPANY, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-5477 CIVIL ]:N RE: DEFENDANT'S PREL]~M[NARY OB~IECT[ONS BEFORE BAYLEY, GU[DO, .1.J_. ORDER OF COURT AND NOW, this 8TM day of JANUARY, 2003, defendant's preliminary objections are DENIED. It is directed to file an answer within twenty (20) days. Edward E. Guido, .1. Craig A. Diehl, Esquire Alexander Bono, Esquire Frank A. Dante, Esquire :sld To .Plaintiff: You are hereby notified to plead to the enclosed New Matter and Counterclaims within twenty (20) days from service hereof, or a default judgment may be entered against you. Frank.4. Dante, Esquire .4ttorney for Defendant BLANK ROME LLP By: Alexander D. Bono, Esquire Frank A. Dante, Esquire Identification Nos. 25845/87888 One Logan Square Philadelphia, PA 19103 215-569-5500 Attorneys for Defendant Locke Property Company, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., Plaintiff, V. : LOCKE PROPERTY COMPANY, INC., ' Defendant. · NO. 01-5477 CIVIL ACTION - LAW DEFENDANT LOCKE PROPERTY COMPANY, INC.'S ANSWER~ NEW MATTER AND COUNTERCLAIMS 1. ADMITTED upon information and belief. 2. ADMITTED. It is admitted that Locke Property Company, Inc. ("LPC") is a Massachusetts corporation, with its principal office address at 46 Central Street, Manchester-by- the-Sea, Massachusetts 01944. 116012.00601/21112117v2 3. DENIED. The averments set forth in this paragraph constitute a conclusion of law to which no response is required. 4. DENIED. After reasonable investigation, LPC lacks knowledge or information to form a belief as to the troth of the allegations in paragraph 4. 5. DENIED. It is specifically denied that a written agreement was executed between LPC and Plaintiff for the reasons alleged in the counterclaims, particularly ¶¶ 19-38.2 below, which are incorporated. 6. DENIED. After reasonable investigation, Defendant lacks knowledge or information sufficient to form a belief as to the troth of the averments set forth in this paragraph. 7. DENIED. It is specifically denied that Defendant LPC owes Plaintiff any amount for the reasons stated in the counterclaims, particularly ¶¶19-38.2 below, which are incorporated. 8. DENIED. It is specifically denied that there is a written agreement; that LPC has a delinquent balance with Plaintiff; and that any alleged interest would accrue at the rate of 1½% per month on any alleged delinquent balance. LPC incorporates ¶¶19-38.2 below. 9. DENIED. It is specifically denied that Plaintiff has a right to any payment from LPC, and it is fimher denied that LPC owes Plaintiff any money. It is admitted only that Plaintiff has requested payment from LPC and from LPC has rel~used to pay. LPC incorporates ¶¶19-38.2 below. WHEREFORE, LPC requests that this Honorable Court enter judgment in its favor and against Plaintiff. 2 116012.00601/21112117V2 10. 11. 12. 13. 14. 15. consideration. NEW MATTER AFFIRMATIVE DEFENSES AFFIRM~ TIVE DEFENSE .NO. 1 The Complaint fails to state a claim upon which relief can be granted. AFFIRMATIVE DEFENSE NO. 2 The Complaint is ban'cd, in whole or in part, by the doctrine of estoppel. AFFIRMATIVE DEFENSE NO. 3 The Complaint is barred, in whole or in part, by the doctrine of unjust enrichment. AFFIRMATIVE DEFENSE NO. 4 The Complaint is barred, in whole or in part, by plaintiff's unclean hands. AFFIRMATIVE DEFENSE NO. 5 The Complaint is barred, in whole or in part, by the doctrine of waiver. AFFIRMATIVE DEFENSE NO. 6 The Complaint is barred, in whole or in part, by thc defense of failure of AFFIRMATIVE DEFENSE NO. 7 16. The Complaint is barred, in whole or in part, because the writing attached to the Complaint as Exhibit "A" was never accepted by LPC. AFFIRMATIVE DEFENSE NO: 8 17. A counter-offer was made by LPC when it signed[ the writing attached to the Complaint as Exhibit "A" on the condition that it was "to be replaced with Standard/Form ASCE/Contract Document." AFFIRMATIVE DEFENSE NO,. 9 18. Plaintiffnever performed the conditions as required by the counter-offer. 3 l16012.00601/21112t17v2 COUNTERCLAIM FACTS 19. LPC is a real estate developer, which at all material times had contract rights to and was ready, willing and able to proceed in the process of acquiring and developing an approximately 48.5 acre parcel of unimproved real estate property called "The Golden Triangle" located in Silver Spring Township, Cumberland County, Pennsylvania ("The Golden Triangle Project"). 19.1 The Golden Triangle Property was owned by Alex A. DiSanto, Jr., Julia Szabo, and Mark DiSanto (thc "Trustees") who obtained the property the 1993 Irrevocable Trust left by their parents, Alex and Dora DiSanto, and by Mark X. DiSanto, John M. DiSanto, and John DiSanto, who obtained their ownership fi~om their parents, Alex and Dora DiSanto. 20. At all material times, Fisher, Inc. held itself out as having professional engineering and planning expertise, particularly in land planning, site design, construction and landscape architecture, and with particular familiarity with Silw~r Spring Township, Cumberland County, Pennsylvania and The Golden Triangle Project. 21. At all material times, Robert J. Fisher, PLS., PE ("Fisher") held himself out as a licensed engineer with professional engineering and planning expertise, particularly in the areas of land planning, site design, construction, landscape architecture, and with particular familiarity with Silver Spring Township, Cumberland County, Pennsylvania and The Golden Triangle Project. 22. On or about July 10, 2000, LPC made a written Agreement of Purchase and Sale with the Trustees and Mark X. DiSanto and John M. DiSanto ("P&S~4greement"). 4 116012.00601/21112117v2 22.1 By the P&S Agreement (§ § 1 and 2), the: Trustees, Mark X. DiSanto and John M. DiSanto agreed to sell The Golden Triangle Project to LPC for $1.5 million. By letter dated November 2, 2000, the; parties agreed to reduce the purchase price of the property by up to $250,000.00 because the site costs were higher than originally estimated. 22.2 By the P&S Agreement (§3(a)), LPC m~de a $60,000 cash escrow deposit for The Golden Triangle Project ("Deposit"). 22.3 By the P&S Agreement (§C(6)and (32) and §3(b)), the Trustees, Mark X. DiSanto and John M. DiSanto agreed with LPC that the balance of the purchase price would be paid on or before the "Closing Date", which was agreed to be thirty (30) days after the "Permit Date", which was agreed to be the date on which LPC received all final, permits, licenses and approvals to develop, build, use and operate The Golden Triangle Project, including approvals by the Township of Silver Spring and other govermnental authorities having jurisdiction over the Land Development Plan, Preliminary Subdivision Plan and Final Subdivision Plan, and revisions to the flood plain by the Federal Emergency Management Agency ("FEM~I"); but in no event more than eighteen months after the P&S Agreement's date. In August, 2001, in recognition of the delays caused by the defendants that are described below, the parties abreed to extend the "Outside Date" until July 10, 2002. 5 116012.00601/21112117v2 22.4 By the P&S Agreement (§ 12(b)(vii) and (xii)), the Trustees, Mark X. DiSanto and John M. DiSanto represented that assigTunent of all development plans, land development plans, preliminary subdivision plans, final subdivision plans, structural reviews, architectural drawings and engineering, soil, seismic, geologic, environmental and architectural reports, studies and certificates and other documents concerning The Golden Triangle Project ("Plans") to LPC did not require the consent of third parties, and that they had good and marketable title to such Plans, which were fully paid for and free and clear of any claims, disputes, liens or encumbrances. 22.5 By the P&S Agreement (§ 12(d)(i) and (ii)), the Trustees and Mark X. DiSanto and John M. DiSanto represented that: (i) they would use due diligence and best efforts to keep in full force and effect the terms of a Settlement Agreement made June 8, 1994 by and between Alex A. DiSanto and Dona L. DiSanto, TCC, and the Township of Silver Spring ("1994 Settlement Agreement"), comply with governmental regulations and keep LPC advised concerning developments about the 1994 Settlement Agreement; (ii) they would not change the terms of the 1994 Settlement Agreement or enter into any contracts, restrictions or obligations affecting The Gol&m Triangle Project without LPC's prior written consent; (iii) they would not file any development plans, subdivision plans or other plans with any governmental authorities concerning The Golden Triangle Project, without LPC's prior written consent; and (iv) they would not seek zoning approvals or change, in variances regarding The Golden Triangle Project, without LPC's prior written consent. 6 116012.00601/21 112117v2 22.6 By the P&S Agreement (§12(d)(iii)), the Trustees, Mark X. DiSanto and John M. DiSanto represented that they: (i) woUld fully cooperate regarding LPC's plans for The Golden Triangle Project and would not hinder, delay or impair LPC from filing or obtaining any and all project approvals regarding plans for The Golden Triangle Project; (ii) would take no action to adversely affect or delay or increase LPC's cost of The Golden Triangle Project; and (iii) would not modify the Development Plan, the Preliminary Subdivision Plan, or the Final Subdivision Plan or any uses planned for related property so as to adversely affect or delay or increase LPC's costs regarding The Golden Triangle Project. 22.7 By the P&S Agreement (§24), defendants Trustees, Mark X. DiSanto and John M. DiSanto agreed that they would: (i) not modify the Land Development Plan, the Preliminary Subdivision Plan, the Final Subdivision Plan or the 1994 Settlement Agreement without LPC's prior written consent; (ii) fully support and join in any modification to those plans and .any related project approvals required by LPC in connection with LPC's plans for the project; (iii) execute and deliver any amendments to pending plans n~lating to the filing and approval that LPC may seek to develop, build or operate; the project; and (iv) fully support LPC in seeking project approvals. 7 116012.00601/21112117v2 23. LPC was introduced to Fisher, Inc. and Fisher hy Mark X. DiSanto as exceedingly competent, professional and expert in providing land planning;, design, construction, landscape architecture, engineering and planning services, and as having direct experience in the design and planning of The Golden Triangle Project that previously had been submitted to Silver Spring Township by TCC, by or on behalf of the DiSanto Parents as the prior owners of The Golden Triangle Project (the "Prior Plans"), and had been rejected by' Silver Spring Township. 24. In or about August 2000, LPC's President, William E. Locke, Jr. ("Locke"), met with Fisher, Inc. and Fisher. 24.1 Fisher, on behalf of himself and Fisher, Inc., promoted the professional expertise of himself and of Fisher, Inc. concerning engineering and planning, particularly land planning, architecture and engineering services generally, and professional services that had previously been provided to TCC and the DiSanto Parents in the Prior Plans concerning The Golden Triangle Project and that could be provided to LPC concerning '['he Golden Triangle Project. 24.2 Fisher, Inc. and Fisher represented that they had already prepared the Prior Plans for TCC and the DiSanto Parents regarding subdivision and land development of The Golden Triangle Project, and that these Prior Plans could be "updated" for LPC's use in a cost-effective, efficient manner by Fisher, Inc. and Fisher, and that such "updating" could result in substantial savings for the cost of professional services that are normally provided in such development projects. 8 116012.00601/21112117v2 24.3 Fisher, Inc. and Fisher represented that, as part of their scope of work, their professional services would adhere to the terms of the 1994 Settlement Agreement, in which the Township of Silver Spring agreed to the land development and subdivision of The Golden Triangle property on specified terms; and that they would incorporate those terms and comments from the Township into the "updating" of the Prior Plans. 25. Based on the representations of Fisher, Inc. and Fisher, in or about August 2000, LPC was induced to hire Fisher, Inc. and Fisher to perform professional land planning, architecture and engineering services concerning The Golden Triangle Project, and Fisher, Inc. and Fisher orally agreed to provide those services to LPC ("Oral Professional Services Agreement"). 25.1 In this Oral Professional Services Agreement, it was expressly agreed that Fisher, Inc. and Fisher would efficiently and economically provide professional services by, among other things, "updating" the existing Prior Plans concerning subdivision and development of The Golden Triangle Project that Fisher, Inc. and Fisher had prepared, by incorporating Changes that adhered to the 1994 Settlement Agreement and the Township of Silver' Spring's comments. 26. In or around January, 2000, LPC's Locke advised Fisher and Fisher, Inc. that LPC's financing of The Golden Triangle Project by investors, such as Prudential Real Estate Investors, Inc. and others, would be conditioned on, among other things, the engagement of a professional service provider for architectural, planning and engineering services pursuant to a contract with terms in a standard AIA, ASCE or EJCDC format, and proof of appropriate professional liability errors and omissions insurance coverage. 9 116012.00601/21112117v2 26.1 Fisher, on behalf of himself and Fisher, Inc., represented that Fisher, Inc. would provide both the contract in the appropriate standard term format, and proof of adequate professional liability insurance coverage. 27. Fisher, Inc. and Fisher agreed, in or around January 2001, to engage in the conduct described below regarding the redesign of the Prior Plans to incorporate changes that would harm LPC and accrue to the benefit of TCC, Mark X. DiSanto, John M. DiSanto and the Trustees, and the submission of plans to the Township of Silver Spring, without LPC's approval or consent. 27.1 Fisher, Inc. and Fisher knowingly and inttentionally concealed from LPC their plan and agreement to engage in the conduct described below, and the details of their plan and agreement are particularly within their own knowledge. 28. Based on the Oral Professional Services Agreement, and even though Fisher, Inc. and Fisher had not prepared a written contract with terms in the standard term AIA, ASCE or EJCDC format, in or about February 2001, Fisher, Inc. and FiSher began performing professional services for LPC concerning The Golden Triangle property. 29. Even though Fisher, Inc. and Fisher knew that [,PC needed a contract with terms in the standard term AIA, ASCE or EJCDC format in order to satisfy lending and investment requirements, and even though Fisher, Inc. and Fisher had represented that they would prepare a contract with such terms, Fisher, Inc. and Fisher instead sent LPC a "proposal" for "professional engineering and planning services relative to The Golden Triangle project in Silver Spring Township, Cumberland County, Pennsylvania", which was dated May 1, 2000 ("Proposal"). 10 116012.00601/21112117v2 29.1 The Proposal expressly reiterated the oral representation that the professional services would involve "npdating the land development and subdivision plan for a 400,000 sq. ft. warehouse as required in the June 8th 1994 Settlement Agreement, coordination and assistance to HRG regarding the FEMA flood plain boundary, consultations and coordination regarding the Jimmy George tract for utility connections and preparation of an overall subdivision plan to subdivide the warehouse tract from other lands of Triple Crown Corporation and provide for public access roads and utilities to the tract." (emphasis added) 29.2 On March 23, 2001, LPC signed the Proposal on the express counter-offer condition that the Proposal had "to be replaced [by] standard form ASCE/contract documents.", as agreed in the prior Oral. Professional Services Agreement. 30. LPC, through its president, Locke, repeatedly advised Fisher, Inc. and Fisher of the need for them to satisfy the condition of providing a written contract with terms in the standard AIA, ASCE or EJCDC format. 30.1 In April 2001, LPC again notified Fisher, Inc. and Fisher of the requirement of such a contract in order to satisfy Prudential's lending requirements. 31. Given the failure of Fisher, Inc. and Fisher to prepare and provide a written contract with terms in the standard AIA, ASCE or EJCDC forrnat, LPC prepared a contract according to the appropriate standard needed to satisfy its lender and investors, and sent it to Fisher, Inc. and Fisher on May 9, 2001. 11 116012.00601/21112117v2 31.1 Despite LPC's repeated requests concerning the written contract it sent to Fisher, Inc. and Fisher on May 9, 2001, Fisher, Inc. and Fisher ignored requests for a response, and they failed and refused to make the contract in the standard term format as orally agreed, which Fisher, Inc. and Fisher knew was needed by LPC in order to satisfy the lending terms of Prudential to finance the project. 32. Fisher, Inc. and Fisher provided professional services to LPC trader the Oral Professional Services Agreement described above; however, Fisher and Fisher, Inc. were negligent in performing those duties and failed to satisfy the standard of care for professionals providing professional engineering, architecture and planning services. Among the failures of Fisher, Inc. and Fisher were: 32.1 Failure to send to contractors, on a timely basis, copies of plans needed to be used for pricing purposes, and failure to send complete plans to those contractors (Leon Wintermeyer, Inc., R.S. Mowery & Sons, Inc. and Connewago Contractors, Inc. [the "Contractors"]); 32.2 Failure to prepare a complete and accurate schedule and, after being advised of numerous errors and omissions in a proposed schedule, failing to update or revise the schedule as requested; 32.3 Failure to incorporate into the plans the Township of Silver Spring's changes outlined in the 1994 Settlement Agreement; 12 116012.00601/21112117v2 32.4 Without notice to or discussion with LPC, making material changes to the plans that were outside the scope of the ',Settlement Agreement, including the location of an entrance driveway and size of the detention basin, and adding a new detention basin on the South side of the building - all of which increased costs and harm to LPC but benefited the Trustees, Mark X. DiSanto and John M. DiSanto, who had agreed to sell The Golden Triangle Project to LPC, owned adjacent land, and had an existing relationship with Fisher, Inc. and Fisher through TCC and the DiSanto Parents; 32.5 Advising LPC that unauthorized work would not be removed from the plans without the approval of Mark X. DiSanto; 32.6 Failure to prepare a complete, organized and professional report outlining compliance with and the status of twenty-two comments made by the Township of Silver Spring; 32.7 Failure to incorporate into plans comments from LPC, made by Locke and its counsel, Jack F. Hurley, Jr., Esquire; 32.8 Failure to outline any and all changes made to the plans beyond those required by the 1994 Settlement Agreement notwithstanding the knowledge that such changes jeopardized the Township's approval of The Golden Triangle Project due to deviations from the 1994 Settlement Agreement, and failure to explain the basis for making such changes, despite repealed requests; 32.9 Failure to meet important project deadlines, including failure to incorporate the Township of Silver Spring's comments and resubmit a complete set of land development and subdivision plans by April 12, 2001; 13 116012.00601/21112117v2 32.10 Failure to keep [PC apprised of progress on The Golden Triangle Project on a timely basis; 32.11 Revision and submissions of plans to the Township of Silver Spring without notice of the revisions to LPC and without authorization fi:om LPC, including refusal to supply to LPC copies of the plans for which the Township required resubmission; 32.12 Failure to secure a quote for errors and omissions insurance coverage despite notice from LPC that this was a requirement fi:om Prudential; and 32.13 Failure to prepare and provide and enter into a written contract with terms in the standard AIA, ASCE or EJCDC format. 33. In addition to the failures described above, Fisher, Inc. and Fisher made defamatory remarks that were designed to impune the character, business integrity, business acumen and financial ability of LPC. These included: 33.1 In January 2001, Fisher, Inc. and Fisher advised Mark X. DiSanto that The Golden Triangle Project was being held up because LPC had not authorized Fisher to begin work, in order to create the false impression that LPC was unnecessarily delaying the project; 33.2 In or about March 2001, Fisher, Inc. and Fisher sought to create the false impression with Mark X. DiSanto that LPC was unnecessarily delaying the engagement of Herbert Rowland Grubic, Inc. ("HRG") as a FEMA consultant, even thought they knew that HRG was still negotiating a contract, that HRG's proposal was based on the development of two buildings: and a plan completely 14 116012.00601/21112117v2 inconsistent with The Golden Triangle Project plans, and there were efforts to review work done eight years ago regarding the same project by HRG; 33.3 Fisher, Inc. and Fisher informed Mark X. DiSanto that Gannett Fleming was delaying the project when, in fact, they knew that Gannett had been released, had requested information from FEMA, and was waiting for a response; 33.4 Fisher, Inc. and Fisher advised Mark X. DiSanto on several occasions that LPC was impecunious and unable to pay for services that they had rendered. 34. Given the defamatory conduct and professional service failures of Fisher, Inc. and Fisher, LPC terminated the services of Fisher, Inc. and Fisher and sought to engage another firm to provide professional services. 34.1 Fisher, Inc. and Fisher interfered by refusing to permit the proposed successor, Michael J. Brill & Associates ("Bril£'), to use the existing plans or any data from them and threatening to sue Brill ifBrill attempted to submit any revised plans based on the plans or data of Fisher, Inc. and Fisher because they owned them and had not been paid for them. 34.2 In seeking to replace Fisher, Inc. and Fisher, LPC requested Mark X. DiSanto to prove that it owned plans or data that Fisher, Inc. and Fisher claimed it owned when it threatened to sue; however, DiSanto failed and refused to give support for their ownership of the plans or data on which Fisher, Inc. and Fisher threatened to sue Brill and delayed providing suclh information in order to preclude LPC from engaging a successor engineer on a timely basis. 15 116012.00601/2l 112117v2 34.3 LPC also sought to hire another finn, G~mnett Flemming, but again was prevented from doing so. 35. The conduct, statements and representations of Fisher, Inc. and Fisher described above, and particularly in paragraphs 24-31.1, were false, deceitful and misleading because Fisher, Inc. and Fisher knew that: 35.1 They did not intend to provide professional services to LPC in a cost-effective manner by "updating" the Prior Plans, but instead intended to benefit themselves and their other clients, all of the def~mdants, by making changes to the Prior Plans that benefited the defendants and not LPC, and that increased the costs for LPC concerning The Golden Triangle Project; 35.2 They omitted, concealed and failed to disclose that their true loyalty was to the defendants, rather than to LPC, and that they intended to benefit the defendants at LPC's expense; 35.3 They intended to hinder, delay, and prew~nt LPC's financing of The Golden Triangle Project and interfere with LPC's relationship with Prudential, and other lenders and investors; 35.4 They intended to hinder, delay, and prew~nt LPC from closing on the acquisition of The Golden Triangle Project under the P&S Agreement; and 35.5 They did not intend to adhere to the 1994 Settlement Agreement or to incorporate changes consistent with the terms of the 1994 Settlement Agreement or incorporate changes and comments from the Township of Silver Spring concerning the 1994 Settlement Agreement; and 16 116012.00601/21112117v2 35.6 They intended to hinder, delay and prew:nt LPC from incorporating changes consistent with the terms of the 1994 Settlement Agreement and the Township of Silver Spring's comments regarding The Golden Triangle Project. 36. On or about June 7, 2001, the Silver Spring Township Planning Commission met and - given the changes that Fisher, Inc. and Fisher had made to the plans at the direction of Mark X. DiSanto, John M. DiSanto and the Trustees and given their failure to adhere to the 1994 Settlement Agreement - recommended that preliminary subdivision of The Golden Triangle Project be denied because it was inconsistent with the 1994 Settlement Agreement. 37. As a direct and proximate result of defendants' conduct described above, LPC has suffered substantial economic harm, has had its contract and business relationships interfered with by the defendants, and has been prevented from acquiring and developing the unique real property located in The Golden Triangle Project. 38. As a result of the conduct of Fisher, Inc. and Fislher, LPC sought to resolve any outstanding issues between them. 38.1 Unknown to LPC, and while it was negotiating in good faith, and after the Trustees, Mark X. DiSanto and John M. DiSanto had acknowledged their delays by agreeing to extend the Outside Closing Date until July, 2002, and while LPC was waiting for the release of the plans by Fisher, Inc. and Fisher, on or about September 20, 2001, Fisher, Inc. and Fisher filed this lawsuit. 38.2 Fisher, Inc. and Fisher concealed this lawsuit from LPC during negotiations, and eventually served it at Locke's home address on Saturday, January 19, 2002. 17 116012.00601/21112117v2 COUNTERCLAIMS COUNT I - Fraud, Deceit and Misrepresentation (LPC v. Fisher, Inc.) 39. Paragraphs 19 through 38.2 of LPC's New Matter are re-alleged and incorporated. 40. This Count charges Fisher, Inc. with fraud against LPC by engaging in false, deceitful and misleading course of conduct that was designed and intended to deceive LPC and to fraudulently induce LPC to agree to engage Fisher, Inc. 41. The false, deceitful and misleading conduct of Fisher, Inc. described above and in making the fraudulent representations described above, which they knew to be false, or which they made in reckless disregard of the truth, and in continuing their conduct interfering with LPC concerning The Golden Triangle Project, constituted fraud and deceit. 42. LPC detrimentally relied in good faith on the conduct of Fisher, Inc. described above without knowledge of or reason to know of such conducll, which allowed Fisher, Inc. to defraud LPC. 43. LPC has been damaged as a direct and proximate result of the false, misleading and deceptive course of conduct and misrepresentations of Fisher, Inc. described above. 44. The conduct of Fisher, Inc. was so outrageous, wanton and deviant from the norms of acceptable conduct, and so malicious, that punitive damages are warranted. WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted by law. 18 116012.00601/21112117v2 45. incorporated. 46. 47. COUNT II - Negligent Misrepresentation (LPC v. Fisher, Inc.) The allegations of paragraphs 19 through 44 above are re-alleged and 51. incorporated. 52. 53. services described above. This Count charges Fisher, Inc. with negligent misrepresentation. Fisher, Inc. at all material times had a pecuniary interest to supply the information and to engage in the conduct described above, failed to exercise reasonable care and competence in communicating information, and intended to induce LPC to ihire it and to rely on the foregoing conduct. 48. LPC justifiably relied on the information, continuing conduct, and misrepresentations of Fisher, Inc. described above. 49. By the foregoing, Fisher, Inc. is liable to LPC for its negligent misrepresentations and for all resulting damages to LPC. 50. LPC has been damaged as a direct and proximate result of its reliance on the negligent misrepresentations of Fisher, Inc. WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,0000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted by law. COUNT III - Malpractice (LPC v. Fisher, Inc.) The allegations of paragraphs 19 through 50 above are re-alleged and This Count charges Fisher, Inc. with professional malpractice. Fisher, Inc. owed a duty of professional care in performing the professional 19 116012.00601/21112117v2 54. Fisher, Inc. breached their duty of care that they owed to LPC in performance of the services described above. 55. As a direct and proximate result of the professional malpractice of Fisher, Inc. as described above, LPC has been damaged. WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00,. exclusive of interest and costs, together with costs of suit and such other relief as permitted by law. COUNT IV - Breach of Covenant of Good Faith and Fair Dealings (LPC v. Fisher, Inc.) The allegations of paragraphs 19 through 55 above are re-alleged and 56. incorporated. 57. This Count charges Fisher, Inc. with breach of their implied covenant of good faith and fair dealing. 58. The conduct described above constitutes breach of an implied covenant of good faith and fair dealing that Fisher, Inc. owed to LPC, and they have caused damage to LPC as a result. WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted by law. COUNT V - Tortious Interference with Contract and Prospective Contract (LPC v. Fisher, Inc.) 59. The allegations of paragraphs 19 through 58 above are re-alleged and incorporated. 20 116012.00601/21112117v2 60. This Count charges Fisher, Inc. with tortious interference with contracts and prospective contracts between LPC and others, including Mark X. DiSanto, John M. DiSanto, the Trustees, Brill, Gannett Flemming, Prudential and the Contractors, concerning The Golden Triangle Project. 61. As described above, LPC had contracts and prospective contractual relationships concerning The Golden Triangle Project, and Fisher, Inc. interred to harm LPC by interfering with and preventing such contractual relationships from occurring, even though they lacked any privilege or justification in doing so. 62. LPC has been damaged as a direct and proximate result of the conduct of Fisher, InC. WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted by law. COUNT VI - Breach of Contract (LPC v. Fisher, Inc.) The allegations of paragraphs 19 through 62 above are re-alleged and 63. incorporated. 64. Agreement. 65. This Count charges Fisher, Inc. with breach of the Oral Professional Services By the conduct described above, Fisher, Inc. have breached and failed to fulfill their obligations under the Oral Professional Services Agreement even though LPC has satisfied all of its obligations. 21 116012.00601/21112117v2 66. LPC has been damaged by the breach of Fisher, Inc. and will suffer irreparable harm if the breach continues because it will prevent LPC from developing the unique property that is The Golden Triangle Project. WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted by law. COUNT VII - Defamation (LPC v. Fisher, Inc.) The allegations of paragraphs 19 through 66 above are re-alleged and 67. incorporated. 68. 69. This Count charges Fisher, Inc. with defamationt. The conduct of Fisher, Inc. described above is capable of defamatory meaning with respect to LPC because it impunes LPC's business representation and falsely alleges breach of agreements. 70. The recipients of the information described above understood and appreciated its defamatory meaning. 71. Fisher, Inc. acted maliciously and attempted to qefame LPC and to damage its business reputation. 72. The foregoing defamatory conduct was not protected by privilege, and was so outrageous, wanton, unconscionable and deviant from acceptable norms of conduct that punitive and exemplary damages are wan'anted to punish Fisher, Inc. and to make an example of them. 73. LPC has suffered "actual harm" from the defamation in an amount to be proven at trial. 22 116012.00601/21112117v2 WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00,. exclusive of interest and costs, together with costs of suit and such other relief as permitted by law. COUNT VIII - Declaratory Judgment (LPC v. Fisher, Inc.) 74. Paragraphs 19 through 73 above are re-alleged and incorporated. 75. This Count seeks declaratory judgment because an actual, present and substantial controversy exists between LPC and Fisher, Inc. concerning the Oral Professional Services Agreement. 76. Alternatively, the Oral Professional Services Agreement should be declared void and unenforceable against LPC given the conduct of Fisher, Inc. described above, including the fraudulent inducement· WHEREFORE, Locke Property Company, Inc. demands judgment be entered in its favor and against Fisher, Inc. in an amount in excess of $150,000.00, exclusive of interest and costs, together with costs of suit and such other relief as permitted by law. / Re e subrr' Dated: February 4, 2003 f;..~\~ ~-~ t~le: term i On Ph /er D.~oh~(Pa.'~d. ~845) · Dante (Pa. Id. 87888) 31K ROME ILLP Logan Square adelphia, PA 19103 215-569-5500 215-569-5555 (fa>:) Attorneys for Defendant, Locke Property Company, Inc. 23 116012.00601/21112117v2 CERTIFICATE OF SERVICE It is certified that on February 4, 2003 a copy of Locke Property Company, Inc.'s Answer, New Matter and Counterclaim was served by facsimile and first class mail upon: Craig A. Diehl, Esquire Law Offices of Craig A. Diehl 3464 Trindle Road Camp Hill, PA 17011-4436 24 116012.00601/21112117v2 om~: Fdmmryd, 2002 i 1401~,,OOt~Ob~ 11211M IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. J. FISHER & ASSOCIATES, INC., Plaintiff Vo LOCKE PROPERTY COMPANY, INC., Defendant NO. 01-5477 CIVIL ACTION - LAW PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIMS AND NOW COMES, R. J. Fisher & Associates, Inc. ("Fisher, Inc."), by and through its counsel, Law Offices of Craig A. Diehl, and files its Answer to the new matter and counterclaims as follows: 10. is required. Denied. The averment states a conclusion of law to which no responsive pleading 11. is required. Denied. The averment states a conclusion of law to which no responsive pleading 12. is required. Denied. The averment states a conclusion of law to which no responsive pleading 13. is required. Denied. The averment states a conclusion of law to which no responsive pleading 14. is required. Denied. The averment states a conclusion of law to which no responsive pleading 15. is required. 16. is required. 17. is required. 18. is required. Denied. The averment states a conclusion of law to which no responsive pleading Denied. The averment states a conclusion of law to which no responsive pleading Denied. The averment states a conclusion of law to which no responsive pleading Denied. The averment states a conclusion of law to which no responsive pleading 19. Denied. It is denied that LPC was at all material times ready, willing, and able to proceed in the process of acquiring and developing a 48.5 acre parcel of unimproved real estate called "The Golden Triangle". LPC failed to communicate or provide necessary information to Fisher, Inc. for submission deadlines to the local municipality. 19.1 Admitted. 20. Admitted. 21. Admitted. 22. Admitted. 22.1 Admitted. 22.2 Admitted. 22.3 Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averment. Fisher, Inc. further denies that it caused any alleged delays resulting in an extension of the "Outside Date". 2 22.4 Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averment. 22.5 Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averment. 22.6 Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averment. 22.7 Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averment. 23. Admitted. 24. Denied. The first meeting between LPC's President, William E. Locke, Jr. ("Locke") and Fisher, Inc. was in or about April, 2000. 24.1 Denied in Part, Admitted in Remainder. It is denied that Fisher, Inc. or Robert J. Fisher, individually ("Fisher"), promoted the professional services of architecture. It is further denied that Fisher, in an individual capacity, promoted himself, as he was at all times working as an employee of Fisher, Inc. The remaining averments are admitted. 24.2 Admitted in Part, Denied in Remainder. It is admitted that Fisher, Inc. had already prepared plans for TCC. The subdivision and land development plans were updated based on a written agreement with Locke. (See written contract.) It is further denied that Fisher, Inc. or Fisher represented that substantial savings would occur as a written contract explicitly set forth the fees to be charged for professional services. Lastly, at no time did Fisher act in an individual capacity, but as an employee of Fisher, Inc. 24.3 Denied in Part, Admitted in Remainder. It is denied that Fisher, individually, represented the averments set forth. It is admitted that Fisher, Inc. represented that its services would adhere to the terms of the 1994 Settlement Agreement. It is believed that Fisher, Inc. did update the plans in adherence to the terms of the 1994 Settlement Agreement. 25. Denied. Fisher, Inc. sent LPC a written proposal dated May 1, 2000 and began consulting with Mr. Locke on site plan revisions and options in July, 2000 through December, 2000. These professional services are evidenced by two invoices numbered 3384 and 3529. During the aforementioned time frame, LPC was considering several plan options with the Township and was contemplating how the plans were to be revised. Actual revisions to the subdivision and land development plans began upon receipt of LPC's deposit of $3,000.00 on February 23, 2001 and a simultaneous payment of invoices 3384 and 3529. LPC also promised a signed contract when the deposit was received but the executed contract did not come until March 23,2001. Services 25.1 Denied in Part, Admitted in Part. Agreement exists. A written contract exists It is denied that an Oral Professional setting forth the scope of work and renumeration for professional services to be received. It is admitted that Fisher, Inc. agreed to perform professional services as described in the written contract dated March 23,2001. 26. Denied. LPC's Locke did not advise Fisher, Inc. or Fisher of the requirement for professional liability errors and omissions insurance coverage until Fisher, Inc. requested that past due invoices be paid in April, 2001. LPC's Locke discussed an ASCE contract with Fisher, Inc. when he signed the written agreement on March 23, 2001 at which time LPC's Locke said he would provide a copy of a sample contract for Fisher, Inc.'s review. 4 26.1 Denied. Fisher and Fisher, Inc. never represented that Fisher, Inc. would provide an ASCE, AIA, or EJCDC contract and adequate professional liability insurance coverage. In fact, it was not until a May 9, 2001 memo was received by Fisher, Inc. that it first became aware of certain insurance coverage requirements. However, at this time, Fisher, Inc. had already completed approximately 90.0% of its submissions for the municipality. Fisher, Inc. and Fisher also never agreed that the written contract already in effect would be modified. 27. Denied. Fisher, Inc. and Fisher never agreed with anyone to engage in conduct that would harm LPC. 27.1 Denied. Fisher, Inc. and Fisher have no knowledge of intentionally concealing from LPC any information that may harm LPC. 28. Denied. There was a written Agreement entered into by LPC and Fisher, Inc. LPC expressly directed Fisher, Inc. to perform services and how to perform certain plan issues on its behalf. 29. Denied. Fisher, Inc. or Fisher never knew LPC needed a contract with terms in standard AIA, ASCE, or EJCDC language in order to satisfy lending and investment requirements until Fisher, Inc. demanded payment for services performed. 29.1 Admitted. 29.2 Denied. On March 23, 2001, LPC executed the proposal creating a binding, written contract. LPC also indicated that it would supply a sample agreement for Fisher, Inc.'s consideration consistent with the executed proposal. 5 30. Denied. LPC never supplied a sample agreement to Fisher, Inc. until May 9, 2001 and this sample agreement totally changed the scope of work previously agreed to by the executed written contract. Fisher, Inc. offered to meet with LPC to discuss these issues, however, LPC did not return phone calls and failed to show up at a scheduled meeting to discuss contract issues. 30.1 Denied. In May, 2001, was the first time LPC informed Fisher, Inc. about the contract requirements for his financing. performed. 31. 9, 2001. issues. However, 90.0% of Fisher, Inc.'s work had already been Denied. It is admitted that a proposed Agreement was mailed to Fisher, Inc. on May However, LPC refused to return phone calls to resolve any contract issues. 31.1 Denied. LPC failed to communicate with Fisher, Inc. to resolve contract Furthermore, 90.0% of Fisher, Inc.'s work was complete when it found out about LPC's alleged financing requirements. 32. Denied. There was a written Agreement that Fisher, Inc. adhered to. By way of further answer, Fisher, Inc. and Fisher deny that it was negligent in performing its duties. Fisher, Inc. and Fisher do not even perform architecture services. 32.1 Denied. Plans were sent after proper addresses were provided to Fisher, Inc. 32.2 Denied. Schedule provided by Fisher, Inc. to LPC was adequate and no problems were noted until the demand for payment of outstanding invoices occurred. 32.3 Denied. The plans were revised in accordance with the 1994 Settlement Agreement and some instructions from LPC. 6 32.4 stormwater pond. 32.5 Denied. All changes were reviewed with LPC including the driveway and Denied. LPC requested that grading on the lots along Carlisle Pike not be shown on the plans, but this grading was required for Township and County Conservation District approvals. 32.6 Denied. A transmittal letter was prepared which outlined the twenty-two comments made by Silver Spring Township. 32.7 Denied. Fisher, Inc. and Fisher are unaware of plan comments from LPC or its counsel that were not addressed. 32.8 Denied. There were no changes in Fisher, Inc. or Fisher's opinion to the plans outside the terms of the 1994 Settlement Agreement. Denied. All deadlines were met. Denied. LPC would not return phone calls so ifLPC was not informed, it was 32.9 32.10 due to its own fault. 32.11 Denied. LPC refused to timely communicate with Fisher, Inc. which jeopardized the project. Since LPC was not paying for services performed, Fisher, Inc. held in its possession the revised plans until payment was to be received. 32.12 Denied. LPC never advised Fisher, Inc. or Fisher of the requirement for errors and omissions insurance until Fisher, Inc. requested that past due invoices be paid. 32.13 Fisher, Inc. and Fisher never represented that Fisher, Inc. would provide a written contract with terms in the standard AIA, ASCE, or EJCDC format. 7 33. Denied. 33.1 Admitted in Part, Denied in Remainder. It is admitted that Fisher, Inc. advised Mark DiSanto that the project was being held up because no deposit was received in January, 2001 and no executed contract had been received by Fisher, Inc. It is denied that this conversation adversely impacted LPC. 33.2 Denied. Fisher, Inc. had requested copies of the FEMA work to assist it with the Land Development Plan so as to not duplicate efforts and make it more cost effective for LPC. 33.3 Denied. Fisher, Inc. had requested copies of the FEMA work to assist it with the Land Development Plan so as to not duplicate efforts and make it more cost effective for LPC. 33.4 Denied. Fisher, Inc. informed Mark DiSanto that it was not going to the Township meeting unless payment was received. 34. Denied. It is strictly denied that Fisher, Inc. or Fisher used any defamatory conduct toward LPC or performed its duties in a negligent manner. 34.1 Denied. Fisher, Inc. and Fisher never threatened to sue Brill. Fisher, Inc. did refuse to turn over the engineering work until it was paid. 34.2 Denied. Fisher, Inc. and Fisher never threatened to sue Brill. Fisher, Inc. did refuse to turn over the engineering work until it was paid. 34.3 Denied. Fisher, Inc. and Fisher are without knowledge or information sufficient to form a belief as to the truth of the averment. 35. Denied. 8 35.1 Denied. Fisher, Inc. was working for LPC and believes all its services were done in the best interests of LPC. 35.2 Denied. Fisher, Inc. was working for LPC and believes all its services were done in the best interests of LPC. 35.3 Denied. Fisher, Inc. was working for LPC and believes all its services were done in the best interests of LPC. 35.4 Denied. Fisher, Inc. was working for LPC and believes all its services were done in the best interests of LPC. 35.5 Denied. Fisher, Inc. believes that the services rendered were in adherence to the 1994 Settlement Agreement. 35.6 Denied. Fisher, Inc. believes that the services rendered were in adherence to the 1994 Settlement Agreement. 36. Denied. The Planning Commission was not in a position to deal with all the legal and technical aspects of the Plan and denied it so the Board could decide. 37. Denied. Fisher, Inc. and Fisher are without knowledge or information sufficient to form a belief as to the truth of the averment. Denied. LPC prepared a proposed settlement agreement that was unacceptable to 38. Fisher, Inc. 38.1 Denied. LPC should have known that a lawsuit was forthcoming since it failed to pay for invoices for services performed that benefitted LPC. It is admitted that Fisher, Inc. filed suit against LPC. 38.2 Denied. LPC should have known that a lawsuit was forthcoming since it failed to pay for invoices for services performed that benefitted LPC. It is admitted that Fisher, Inc. filed suit against LPC COUNT I - Fraud, Deceit and Misrepresentation (LPC v. Fisher, Inc.) 39. Denied. See prior answers to paragraphs 1 through 38. 40. Denied. Fisher, Inc. strictly denies said allegations. A written contract was executed between the parties with engineering services being performed in adherence thereon on behalf of LPC. 41. Denied. Fisher, Inc. strictly denies said allegations. A written contract was executed between the parties with engineering services being performed in adherence thereon on behalf of LPC. 42. Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averments. 43. Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averments. 44. Denied. Paragraph 44 is a conclusion of law to which no answer need to be filed and is thus deemed denied. WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count I of the Counterclaim with prejudice. 10 45. set forth. 46. COUNT II - Negligent Misrepresentation (LPC v. Fisher, Inc.) Answers to paragraphs 1 through 44 are incorporated herein by reference as if fully Denied. Paragraph 46 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 47. Denied. Fisher, Inc. strictly denies said allegations. A written contract was executed between the parties with engineering services being performed in adherence thereon on behalf of LPC. 48. Denied. Fisher, Inc. is without knowledge or information sufficient to form a belief as to the truth of the averments. 49. Denied. Paragraph 49 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 50. Denied. Paragraph 50 is a conclusion of law to which no answer need to be filed and is thus deemed denied. WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count II of the Counterclaim with prejudice. 51. set forth. COUNT III - Malpractice (LPC v. Fisher, Inc.) Answers to paragraphs 1 through 50 are incorporated herein by reference as if fully 11 52. Denied. Paragraph 52 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 53. Admitted. 54. Denied. Paragraph 54 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 55. Denied. Paragraph 55 is a conclusion of law to which no answer need to be filed and is thus deemed denied. WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count III of the Counterclaim with prejudice. 56. set forth. 57. COUNT IV - Breach of Covenant of Good Faith and Fair Dealings (LPC v. Fisher, Inc.) Answers to paragraphs 1 through 55 are incorporated herein by reference as if fully Denied. Paragraph 57 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 58. Denied. Paragraph 58 is a conclusion of law to which no answer need to be filed and is thus deemed denied. WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count IV of the Counterclaim with prejudice. 12 COUNT V - Tortious Interference with Contract and Prospective Contract (LPC v. Fisher, Inc.) 59. Answers to paragraphs 1 through 58 are incorporated herein by reference as if fully set forth. 60. Denied. Paragraph 60 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 61. Denied. Paragraph 61 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 62. Denied. Paragraph 62 is a conclusion of law to which no answer need to be filed and is thus deemed denied. WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count V of the Counterclaim with prejudice. 63. set forth. 64. COUNT Vl - Breach of Contract (LPC v. Fisher, Inc.) Answers to paragraphs 1 through 62 are incorporated herein by reference as if fully Denied. Paragraph 64 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 65. Denied. Paragraph 65 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 13 66. Denied. Paragraph 66 is a conclusion of law to which no answer need to be filed and is thus deemed denied. WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count VI of the Counterclaim with prejudice. 67. set forth. 68. COUNT VII - Defamation (LPC v. Fisher, Inc.) Answers to paragraphs 1 through 66 are incorporated herein by reference as if fully Denied. Paragraph 68 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 69. Denied. Paragraph 69 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 70. Denied. Paragraph 70 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 71. Denied. Paragraph 71 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 72. Denied. Paragraph 72 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 73. Denied. Paragraph 73 is a conclusion of law to which no answer need to be filed and is thus deemed denied. 14 WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count VII of the Counterclaim with prejudice. 74. set forth. 75. is thus deemed denied. 76. Denied. COUNT VIII - Declaratory Judgment (LPC v. Fisher, Inc.) Answers to paragraphs 1 through 73 are incorporated herein by reference as if fully Denied. Paragraph 75 is a conclusion of law to which no answer need to be filed and There is no Oral Professional Services Agreement. A written Agreement was executed by both parties. WHEREFORE, R. J. Fisher & Associates, Inc. respectfully requests dismissal of Count VIII of the Counterclaim with prejudice. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Dated: February 19, 2003 By: Craig ~. Dieh~,'~squire Attorney ID No. 52801 3464 Trindle Road Camp Hill, PA 17011-4436 (717) 763-7613 Counsel for Plaintiff 15 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. J. FISHER & ASSOCIATES, INC., Plaintiff Vo LOCKE PROPERTY COMPANY, INC., Defendant NO. 01-5477 CIVIL ACTION - LAW VERIFICATION I, Robert J. Fisher, President of R. J. Fisher & Associates, Inc., verify that the statements made in the foregoing PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIMS are tree and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities. R. J. FISHER & ASSOCIATES, INC. Date: ~//2_ 4/~ ...% By: Robert J. Fisher, President IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. J. FISHER & ASSOCIATES, INC., Plaintiff Vo LOCKE PROPERTY COMPANY, INC., Defendant NO. 01-5477 CIVIL ACTION - LAW CERTIFICATE OF SERVICE On this ~ (.t~ay of February, 2003, I, the undersigned, hereby certify that I have served a tree and correct copy of the foregoing document by depositing such in the regular U. S. Mail, postage prepaid, addressed as follows: Alexander D. Bono, Esquire Frank A. Dante, Esquire BLANK ROME LLP One Logan Square Philadelphia, PA 19103 LAW OFFICES OF CRAIG A. DIEHL Hele~_/E. Rasmussen, Legal Assistant 3464 Trindle Road Camp Hill, PA 17011-4436 (717) 763-7613 PR2~ClPE FOR LISTING CASE BDR TRIAL (Must be typewritten and suk~nitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAbD COUNTY Please list the following case: (Check one) ( ) for JURY trial at the next tez~n of civil court. ( X ) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) (check one) R0 J. FISHER & ASSOCIATES, INC., (Plaintiff) VS. LOCKE PROPERTY COMPANY, INC., (Defendant) VS. (x) ( ) ( ) Civil Action - Law Appeal from Arbitration (other) The trial list will be called on and August 12, 2003 Trials coranence on September 8, 2003 Pretrials will be held on August 20, 2003 (Briefs are due 5 days before pretrials. ) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1. ) No. 5477 Civil X/~ 2001 Indicate the attorney who will try case for the ~rty who files this praecipe: Craig A. Diehl, Esquire/Law Offices of Craig A. Diehl Indicate trial counsel for other parties if known: Alexander D. Bono, Esquire, and Frank A. Dante~ ESquire/Blank Rome LLP This case is ready for trial. Print N~ne: Craig A. Diehl, Esquire Date: June 20, 2003 Attorney for: Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. J. FISHER & ASSOCIATES, 1NC., Plaintiff LOCKE PROPERTY COMPANY, INC., Defendant NO. 01-5477 CIVIL ACTION - LAW CERTIFICATE OF SERVICE On this 20th day of June, 2003, I, the undersigned, hereby certify that I have served a true and correct copy of the PRAECIPE FOR LISTiNG CASE FOR TRIAL by depositing such in the regular U. S. Mail, postage prepaid, addressed as follows: Alexander D. Bono, Esquire Frank A. Dante, Esquire BLANK ROME LLP One Logan Square Philadelphia, PA 19103 By: LAW OFFICES OF CRAIG A. DIEHL Helen E. Rasmussen, Legal Assistant 3464 Trindle Road Camp Hill, PA 17011-4436 (717) 763-.7613 n.J. FISHER & ASSOCIATES, : INC. : V. : LOCKE PROPERTY COMPANY, INC. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-5477 CIVIL CIVIL ACT[[ON - LAW ORDER OF COURT AND NOW, this l0TM day of JULY, 2003, a pretrial conference in the above-captioned matter scheduled for FRIDAY, JULY 18, 2003, Cumberland County Courthouse, TRIAL in the matter will conference. at 11:00 a.m. in Chambers of the undersigned judge, Carlisle, Pei%nsylvania. be scheduled at the pretrial Counsel are directed to have their calendars available. Edward E. Guido, J. Craig A. Diehl, Esquire Frank A. Dante, Esquire Court Administrator :sld R.J. FISHER & ASSOCIATES, : INC. : V. : LOCKE PROPERTY COMPANY, INC. : IN THE COURT OF COMMON PLEAS OF CUMBERLAIqD COUNTY, PENNSYLVANIA NO. 2001-5477 CIVIL CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 23RD day of JULY, 2003, the pretrial conference in the above-captioned matter scheduled for July 18, 2003, at 11:00 a.m. has been rescheduled for TUESDAY, JULY 29, 2003, at 3:00 p.m. in Chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. A Pretrial ~randum -h~ll be submitted by counsel in accordance with C.C.R.P. 212-4. TRIAL in the matter will be scheduled at the pretrial Counsel is directed to have their calendars conference. available. ~raig A. Diehl, Esquire uFrank A. Dante, Esquire Court Administrator :sld RJ FISHER & ASSOCIATES, Plaintiff LOCKE PROPERTY COMPANY, Defendant INC., INC., 01-5477 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW IN RE: A pretrial 2003, before the Honorable Edward E. Guido, the Plaintiff was Craig A. Diehl, Esquire, Defendant was Frank A. Dante, Esquire. PRETRIAL CONFERENCE conference was held Tuesday,~Jul~,[%~9~ Judge. Pre ~e~r~t and present for the This is a breach of contract case in which the Defendant has counterclaimed under numerous theories. Counsel estimate that the case may take as many as three days to try. We are skeptical of that claim, and will schedule two days initially. We will adjourn to a third date if that becomes necessary. Trial in this matter is scheduled to commence at 8:30 a.m. on Thursday, November 20, 2003. We have set aside ali day November 20 and all day November 21 for the hearing. Counsel are directed forthwith to check the availability of their witnesses for the scheduled trial dates. We will not entertain any request for a continuance, other than for a dyer emergency, made no more than ten days after today's date. The parties are directed to exchange all exhibits by Monday, October 20, 2003. Any objection to the proposed exhibits of the other party, made in the form of a motion pre-numbered prior to trial. other than for relevance, shall be in limine. Ail exhibits are to be Any motion in limine requiring a hearing to resolve issues of facts must be filed, with supporting authority, by October 1, 2003. Any reply, with supporting authority, shall be filed by October 6, 2003. Ail other motions in limine, with supporting authority, must be filed by Monday, October 27, 2003. Any replies, along with supporting authority, shall be filed by November 7, 2003. The parties are currently in the process of attempting to negotiate a settlement. It is difficult for the Court to determine how likely that settlement is. By the Court, Craig A. Diehl, Esquire For the Plaintiff Frank A. Dante, Esquire For the Defendant Court Administrator :mae IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ICJ. FISHER & ASSOCIATES, INC., Plaintiff, LOCKE PROPERTY COMPANY, INC., Defendant. ORDER ANDNOW, this ~'- dayof 0'J~ NO. 01-5477 CIVIL ACTION - LAW ., 2003, upon the request of the parties, it is hereby ORDERED and DECREED that the following deadlines set forth in the Court's July 29, 2003 Pretrial Order are hereby changed: (1) the October 20, 2003 deadline for exchanging proposed exhibits is moved to October 27, 2003; (2) the October 27, 2003 deadline for filing motions in limine is moved to November 3, 2003; and (3) the November 7, 2003 deadline for filing replies to motions in limine is moved to November 14, 2003. By the~ Edward E..~mdo, J CCi ,./Craig A. Diehl, Esquire For the Plaintiff / ,./Frank A. Dante, Esquire For the Defendant Court Administrator I0 BLANK ROMEt cOUNSEl. OaS AT LAW Phone: (215) 569-5645 Fax: (215) 832-5645 Email: dante~blankrome, c°m October 20, 2003 V_IA F~EDERAL EXPRES~S The Honorable Edward E. Guido Court of Common pleas for the County of Cumberland Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Ue~ R.J. Fisher & Associates, Inc. v. Locke property Company, Inc. Civil Action No. 01-5477 ~' ' Dear Judge Guido: . · Pursuant to a telephone conversation that I had today wtth Sandy m your chambers, please find a Proposed Order that alters the deadlines established by the Court's Ju. ly enclosed exchanging exhibits and filing motions in limine. Counsel for both part~es 29, 2003 Order for have agreed to the proposed changes, and respectfully request the Court' s approval. RespectfullY, FRANK A. DANTE FAD:jb Enclosure cc: Craig Diehl, Esquire (via facsimile) 00601/21205859vl F~orida One Logan Square 18th & Cher~y StreetS philadelphia, PA 19103-6998 www. B~ankRome.com Mapjiand New Jersey New York Ohio pennsylvania Washington, DC WITHDRAWAL NOTICE TO: LOCKE RE: R.J. FIS NO. 01- You are counsel in this case. A If you Honor~ Court o for th, Cumbe~ One Co Carlisle If no granted. Date: Octob~-'~ , 2103 'ROPERTY COMPANY, INC. ER & ASSOCIATES, 1NC. V. LOCKE. PROPERTY COMPANY, INC. 5477 hereby notified that the undersigned has filed a Petition to Withdraw as copy of the Petition is attached to this notice. ect to this request, you must object in writing within ten (10) days to: Edward E. Guido · Common Pleas : County of Cumberland land County Courthouse n'thouse Square PA 17013 :itten objection is received within ten (10) days, the Petition may be //BL K RO _~.E LLP hlexand~r p.l}off0~, Esquire (PA I.D. # ) Frank A/. ~ante,"CE~re (UA I.D. #87888) BLANI~ ROME LLP One Lo~an Square \ iPhiladelphia, PA 19103 ~] 215-569-5500 v 215-569-5555 (fa>:) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., ~laintiff, V. LOCKE PROPERT~ ORDER AND NOW, Defense Counsel to W Company, Inc., it app~ it is hereby ORDERED and Frank A. Dante, Locke Property Corn ORDERED substitute counsel wi COMPANY, INC., 9efendant. NO. 01-5477 CIVIL ACTION - LAW is day of ,2003 upon the Petition of hdraw Their Appearance on Behalf of Defendant Locke Property ring that Defendant Locke Property Colnpany, Inc., showed good cause, at counsel for Defendant, Blank Rome LLP, Alexander D. Bono, Esquire squire, are hereby granted leave to withdraw as counsel for Defendant any, Inc. in this matter; at Defendant, Locke Property Company, Inc. is directed to retain lin days of the entry of this Order. BYTHECOURT Edward E. Guido, J. I 16012.00601/21206546vl IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., V. LOCKE PROPERT~ PETITI APPEARANI The law firm o Esquire, hereby move Company, Inc. In supl 1. On or a ("Blank Rome") enter ("Locke Property") in 2. The ter Rome are documente~ Engagement Letter is information, but will 4. There work which had been Rome has repeatedly: 5. Consis provided Locke Prop~ NO. 01-5477 C1VIL ACTION - LAW COMPANY, INC., )efendant. )N OF DEFENSE COUNSEL TO WITHDRAW THEIR ~'[ ON BEHALF OF LOCKE PROPERTY COMPANY~ INC. !Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. Dante, , withdraw their appearance on behalf of Defendant, Locke Property rt of their motion, counsel represents as follows: >out February 16, 2001, Alexander D. Bono, Esquire of Blank Rome LLP :d their appearance on behalf of Defendant Locke Property Company, Inc. this matter. ns of Locke Property's engagement of Mssrs. Bono and Dante and Blank in a letter dated February 4, 2002 (the "Engagement Letter"). The mt attached to this Petition because it contains privileged and confidential provided to the Court for an in camera inspection upon request. a total outstanding and unpaid balance of $16,735.03 for legal fees for Jone on Locke Property's behalf by Blank Rome in this matter. Blank cquested that Locke Property pay the outstanding invoices. nt with the terms of the Engagement Letter, Blank Rome regularly ~ with invoices for legal fees and disbursements. Blank Rome has repeatedly requested that Locke Property pay the outstanding invoices. Blank Rome has outstanding invoices for every month dating back seventeen months to May, 2003. Blank Rome / continued to provide legal services to Locke Property. Moreover, Blank Rome has provided Locke Property almost arrangement, but Lock services without being 6. Based u Property's failure to fu ingredients for an attot exist. 7. Blank ~ paid or it would withd would seek another co Rome had not been pa Property and requeste~ letter bas not been atta provided to the Court again wrote to Locke i counsel on October 21 8. Locke outstanding legal fees portion of these fees v 9. This c~ two years to pay the outstanding legal bills or otherwise make a payment ; Property has not done so. Blank Rome can no longer provide legal ~aid. ~on Locke Property's communications to Blank Rome, and Locke fill his obligations to Blank Rome, it is clear that the necessary aey-client relationship between Locke Property and Blank Rome do not ,me notified Locke Property beginning in January 2002 that it must be w as counsel. Locke Property repeatedly assured Blank Rome that it msel. On October 16, 2003, Locke Property was again advised that Blank [ and that it was no longer possible for Blank Rome to represent Locke Ihat he immediately take steps to retain other counsel. A copy of this :hed as it contains privileged and confidential information but it will be 'or in camera inspection upon request. Cm October 21, 2003 Blank Rome ~roperty and expressly stated that it would seek leave to withdraw as 2003. roperty has refused to pay any portion of the $16,735.03 of his for services rendered and has refused to provide any assurance that any 'ill be paid. se has been scheduled for a bench trial on November 20 and 21, 2003. 10. Counseli should be permitted to withdraw under Rule 1.16(b) of the Rules of Professional Conduct ~ecause the withdrawal can be accomplished at this time without a material adverse effect on Locke Property's interests. Locke Property will have ample time to retain other counsel, m d has represented that it has retained replacement counsel. 1 I. Counse should be permitted to withdraw under Rule 1.16(b)(4) because Locke Property failed to subs ;antially to fulfill his obligation to counsel by failing to pay fees and costs now owed to Blank R( me as agreed in the Engagement Letter. 12. Counse should be permitted to withdraw under Rule 1.16(b)(5) because further representation of Lock ~ Property, without financial security or payment of fees, will result in an unreasonable financial ~urden on counsel. WHEREFOR , Blank Rome LLP, Alexander D. Bono, Esquire and Frank A. Dante, Esquire, seek the entr of an Order granting them leave to withdraw their appearance as counsel for Defendant Locke 'roperty in this matter, together with such other relief as the Court deems just. Dated: Octob re~, ~003 845 ~/exand~r D. Bono~A I.D. # ) ?rank P/.~)ante (PA I.D. #87888) ~LAN~ ROME LLP 3ne L[gau Square Philadelphia, PA 19103 215-569-5500 215-569-5555 (fax) Attorneys for Defendant, Locke Prqperty Company, Inc. VERIFICATION I, Alexander D Petition to Withdrawal and belief. I understar 18 P.S. §4904 relating Bono, Esquire, hereby verify that the facts set forth in the foregoing as Counsel are tree and correct to the best of my knowledge, information that the facts stated in the Petition are made subject to the penalties of unswom falsification to authorities. CERTIFICATION OF SERVICE I, Frank A. Dante, attorney for Defendant Locke Property Company, Inc., do hereby certify that the following are all of the known addresses of my client. Locke Property Company, Inc. 46 Central Street Manchester-By-The-Sea, MA 01944 and that a copy of tl~ counsel for Plaintiff( Date: Motion and this Notice have been mailed to the address above and to fig Diehl by first class mail and facsimile on October &'~, 2003. Frank A. Dante, l~,squire R.J. FISHER and : ASSOCIATES, INC. : : V. : : LOCKE PROPERTY : COMPANY, INC. : .' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-5477 CIVIL TERM ORDER OF COURT AND NOW! this 27TM day of OCTOBER, 2003, it appearing that trial in this matter is imminent, and it further appearing that an agreed upon order requiring exhibits to be exchanged and Motions in Limine to be filed within days, the petition of Defen~lant's counsel to withdraw their appearance at this late date is DENIED. Each ~)f the deadlines set in our order of October 21, 2003, shall be extended by five i(5) days. ¥Craig A. Diehl, E~quire For the Plaintiff . ~/~iexander D. Bor~o, Esquire ~..~rank A. Dante, Esquire For the Defendar~t :sld Edward E. Guido, 3. L l .'01 g¥ L g 130 gO 1]/15/2003 09:27 FAX BLANK ROME ~002 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1~1,,1. FISHER & ASSOCIATES, INC., Plaintiff, L~')CKE PROPERTY COMPANY, INC., Defendant. NO. 01-5477 CIVIL ACTION - LAW T~ the Prothonotary: Kindly substitute Robert R. Long, Jr., Esquire in as counsel to replace Alexander D. B, ,no, Esquire, Frank A. Dante, Esquire and the law finn of Blank Rome LLP as counsel in the a~ ove captioned matter. Hurisbttrg, PA 17101 7! 7-233-5051 747-234-7517 (fax) Frank A. Dante (Pa. Id. 87888) BLANK ROME LLP One Logan Square Philadelphia, PA 19103 215-569-5500 215-569-5555 (fax) 1~i1 ated: November[~ 2003 R.]. FISHER & ASSOCIATES, INC. LOCKE PROPERTY COMPANY, INC. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA · ' NO. 2001-5477 CIVIL ,. : AND NOW, this 21sT day of NOVEMBER, 2003, trial in this matter is continued until FRZDA¥, DECEI~IBER $, 2003. at :11:00 a.m If additional time is needed, we will reconvene on TUESDAY, D£C~MBI~R 23, 2003, at :1.1:00 a.m. in Courtroom # 5. By the Court, Edward E. Guido, ]. ~rraig A. Diehl, Esquire 3464 Trindle Road Camp Hill, Pa. 17011 ~'6bert H. Long, Jr., Esquire One South Market Square P.O. Box 1146 Harrisburg, Pa. 17108 :sld R.J. FISHER & ASSOCIATES, : INC., Plaintiff : : V. LOCKE PROPERTY COMPANY, : INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW Defendant : NO. 01-5477 CIVIL TERM ORDER OF COURT AND NOW, this 2nd day of January, 2004, by agreement of the parties, we find in favor of the and against the Defendant in the amount of $9,000.00. We find in favor of the Plaintiff and against the Defendant on the Counterclaim. Plaintiff ~ZCraig A. Diehl, Esquire For the Plaintiff ~obert R. Long, Jr., Esquire For the Defendant : lfh R.J. FISHER & ASSOCIATES,: Plaintiff : V. : LOCKE PROPERTY COMPANY, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-5477 CIVIL TERM IN RE: TRANSCIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDWARD E. GUIDO, J. Cumberland County Courthouse, Carlisle, Pennsylvania on Friday, January 2, 2004, commencing at 1:30 p.m. in Courtroom Number Five APPEARANCES: Craig A. Deihl, Esquire For the Plaintiff Robert R. Long, Jr., Esquire For the Defendant 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 3 4 5 6 7 THE COURT: reached a settlement. MR. LONG: THE COURT: it for the record? MR. LONG: THE COURT: MR. LONG: I understand the parties have Yes, Your Honor. Do one of you want to articulate I would be happy to, Your Honor. Okay. Your Honor, the settlement of this instant case is in association with a settlement of a pending action in Dauphin County Court of Common Pleas that's docketed as Mark E. DiSanto, et al. versus Locke Property Company, Inc., and today the parties have reached settlement; that is, Locke Property and Mr. Fisher of the instant case, on the terms that the escrow monies in issue in the Dauphin County case in the amount of $60,000.00 will be released by the parties THE COURT: this particular action, that? in that Dauphin County action. Those parties aren't party to so how am I supposed to enforce MR. LONG: I think, Your Honor, the best we can do is say that -- we make representations to the Court that there have been discussions with the DiSantos. THE COURT: But what I'm looking to avoid is -- I don't want prepared to another hearing in this case, so I am enter a judgment today either for the Defendant 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 or for the Plaintiff. You tell me what that judgment is going to be, and then this case is done, and you do what you do. You work out the rest of it in the Dauphin County case. MR. LONG: Your Honor -- THE COURT: Because if the settlement falls through, I don't want to schedule another day of hearings here, and I'm prepared to go today. You're talking about making it contingent upon somebody following through with -- this case is several years old already. Okay. We've been round and round and round some more, and I'm not going round anymore on it. MR. LONG: I follow Your Honor, and -- THE COURT: So I'm ending this case today. MR. LONG: Understood. THE COURT: And I'm prepared to enter it as soon as I hear the rest of the testimony. I'm prepared to render a decision, and that decision will then be final. I won't have to hear it ever again. Now, if you want to agree to what decision I'm going to enter, that's all well and good, but somebody has got to be satisfied that whatever agreement you have, you can enforce in Dauphin County if they don't follow through on it. Okay. So do you need a few more minutes? MR. LONG: Yes, if we may. (Whereupon, a recess was taken.) 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LONG: The Court's approach makes practical sense, Your Honor. The one concern that my client had was that a judgment -- if we were to settle, that a judgment was going to be entered. THE COURT: What I'll do is enter a verdict. I wouldn't enter a judgment. The judgment is taken by Mr. Diehl, and you can certainly agree that the judgment wouldn't be entered for a period of time. MR. DIEHL: That's satisfactory. MR. LONG: That resolves that issue then, Your Honor. THE COURT: So you may want to articulate for the record what the agreement is, so that you may use that in Dauphin County, and then I will enter a verdict that at least resolves this case. And I take it Mr. Locke is not even -- or Mr. Fisher is not even a party to the Dauphin County action? MR. DIEHL: THE COURT: MR. DIEHL: THE COURT: MR. DIEHL: been on the phone with Mr. THE COURT: to bind Mr. That's correct. You've talked to Mr. DiSanto? We have, through Mr. Fisher. Are you the attorney? I am not counsel, but we have DiSanto. You obviously have no authority DiSanto or his attorney? 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. DIEHL: Correct. MR. LONG: They've been -- Mr. Diehl and Mr. Fisher have been an intermediary passing negotiations back and forth between Mr. DiSanto and Mr. Locke, and it was that global resolution that bore on whose responsibility any amount owed to Mr. Fisher was going to be, so we have discussed this and resolve both of these cases recognizing that out of that global settlement an amount of money will be going to Mr. Fisher out of that escrow. THE COURT: Okay. So your client is at least prepared to acknowledge that X amount is owed him, the verdict I'm going to enter right now? MR. LONG: Yes, Your Honor, and that amount will be used from the escrow proceeds. THE COURT: But from your standpoint, from your client's standpoint, is he satisfied that he won't enter judgment on the verdict until that other case is resolved? MR. DIEHL: time frame on that, but, agrees to that. We would like to put a very quick yes, he acknowledges that and Why don't you articulate what the THE COURT: global settlement is, and I'll enter the that, and if you can agree on the number wait before you enter a judgment verdict based upon of days that you'll on the verdict, and do I 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 understand that it's not -- if -- is it DiSanto -- if DiSanto backs out of this settlement, then your client is going -- your client has nothing to enforce that because they can't bind DiSanto. MR. LONG: That's why, Your Honor, with respect to the verdict and Mr. Diehl and Mr. Fisher's agreement that that verdict will be enforced only on the terms that we understand the global resolution to be, that is fine. THE COURT: Okay. If Mr. that global resolution, the verdict will still be entered. Why don't you tell me what the global resolution is first, and then I'll see if it's satisfactory -- MR. LONG: Okay. THE COURT: -- for me to resolve this particular case. MR. LONG: Yes, Your Honor, and I'll start with again at issue in the Dauphin County case is a $60,000.00 escrow account amount. Mr. DiSanto claims that is his. Mr. Locke claims that that escrow money is his stemming from this real estate transaction that is at issue in the case before you. THE COURT: Project. Locke backs out of MR. LONG: Okay. The Golden Triangle Mr. Fisher in the case before Your 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 Honor has brought a claim for professional fees that he says are entitled to him. THE COURT: MR. LONG: Right. That much I know. In reaching a global resolution, the parties have agreed that the $60,000.00 in escrow will be released in the following manner: That Mr. DiSanto will consent to the release of $51,000.00 to Mr. Locke. The balance of $9,000.00 will be used toward the satisfaction of Mr. Fisher's claims in the case before Your Honor. This agreement would result in the resolution of the case before Your Honor and of the case in Dauphin County. DiSanto Your Honor is correct in recognizing that Mr. is not a party to this action. We do not have a written agreement from Mr. DiSanto, although this morning's negotiations have included discussions with Mr. DiSanto -- between Mr. DiSanto, Mr. Diehl, and Mr. Fisher. So we would propose then that in resolving this case that the Court recognizes that the parties have agreed that $9,000.00 will be paid to Mr. Fisher, presuming that that $9,000.00 comes from that escrow amount. We would ask then that the record reflect in some fashion that upon your verdict of $9,000.00 in favor of Mr. Fisher, that Mr. Fisher through counsel will agree not to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 seek or enter judgment to afford the parties, meaning Mr. Locke and Mr. DiSanto and Mr. Fisher, to consummate the settlement by releasing the escrow funds paying $51,000.00 to Mr. Locke and then the $9,000.00 are paid directly to Mr. Fisher. It's my understanding that the escrow monies are held in an account in a financial instftution in Boston, Massachusetts. That may even be reflected in one of the exhibits that we have or may be attached to the sales agreement in the instant action. So I would presume that it would be a matter that an authorized party, whether that's Mr. Locke or DiSanto, and Locke would direct the escrow -- THE COURT: I guess my question to you is, What happens if Mr. DiSanto decides, No, I'm not going to settle this. MR. LONG: Your Honor, I have one upset client. I understand the Court's question. I don't have a good answer for that question, Your Honor. MR. LONG: I suppose, Your Honor, recognizing the Court's eagerness to resolve this matter and wanting to enter a verdict -- THE COURT: Because I'm ready to go today. We've been rattled quite a bit on this. This has a -- the case is more than two years old. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LONG: I would only suggest, Your Honor, that -- where I haven't been involved in the case all that time -- coming from Mr. Locke, the resolution that we've arrived at this morning suggests to me that the parties have moved miles, and the faster that we can reduce this into some semblance of a binding document, the better off is going to be, and I understand that's your everybody concern. THE COURT: Would your client be prepared to take an assignment of $9,000.00 worth of the claim in the escrow in satisfaction of this claim, and then you can agree that you'll satisfy this verdict upon the assignment of that, in the event that doesn't go through because, as I understand it, your client has a relationship with Mr. DiSanto. MR. the project to its other relationships into the additional monies paid to Mr. DIEHL: He continued on fruition, to its finale, future. There Fisher by Mr. other projects if he would agree escrow due to Mr. MR. frame. as engineer for and may have could be DiSanto. THE COURT: Not only on this project but I would presume, so this case can be resolved to accept an assignment of $9,000.00 of an Locke from Mr. Fisher. DIEHL: As long as there was a time We're suggesting ten days. 9 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: What I'm saying is that bets got to give the assignment within ten days, and then he does what he will with Mr. -- you can just agree not to enter judgment on the verdict $9,000.00 MR. DIEHL: THE COURT: on assignment, We'll agree to that. -- if he will deliver to you the the $9,000.00 worth of his interest in the escrow account within the that satisfactory? MR. DIEHL: THE COURT: DiSanto for that $9,000.00. MR. DIEHL: ten day time frame. Is That's satisfactory to my client. And then he can deal with Mr. If we can acknowledge that it's through the assignment our hope that we won't have to go process. ITm just looking Understand. So you've got a -- are you THE COURT: I understand. it doesn't come back to me. MR. DIEHL: THE COURT: that stands right now? will enter a verdict. Yes, Your Honor. We're fine. satisfied with the record the way it you are, both parties, I MR. LONG: MR. DIEHL: THE COURT: agreement of the parties, If Okay. And now, today's date, by we find in favor of the Plaintiff 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and against the Defendant in find in favor of the the counterclaim. I believe that discussions on the MR. Honor. the amount of $9,000.00. We Plaintiff and against the Defendant on resolves it. Okay. You've got the record as far as the stipulations then. LONG: In terms of the assignment, Your THE COURT: And in terms of what your understanding is. MR. DIEHL: Could we have an understanding of the ten days acknowledging -- THE COURT: MR. DIEHL: But I'm not sure that Mr. agreed to that. We just threw ten days out. MR. LONG: As I understand, Your Honor, either pay the $9,000.00 or give an assignment. it's not in your verdict. It's on the record. Long THE COURT: That's right. MR. LONG: Yes, Your Honor. I'm hoping, again, that this is a matter that can be taken care number of days, two, three, THE COURT: reneges on the settlement, verdict. If Mr. Locke wants more than $51,000.00, he can enter judgment on the verdict, or wants some other -- anything other than just the $51,000.00 in cash. it's of in a four business days. Right. And also if Mr. Locke then he can enter judgment on the 11 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 MR. LONG: Right, Your Honor. THE COURT: He might say I didn't want this option, or I want you to pay my legal fees, or yada, yada, yada, so the understanding being that if it's DiSanto that reneges on the verdict, on the settlement, do is assign his $9,000.00 to Mr. Fisher. that reneges on the settlement, they should be able their judgment. Is that agreeable? all Locke has to If it's Mr. Locke to take through that. MR. LONG: Yes, Your Honor. THE COURT: Is that agreeable? MR. DIEHL: Yes, Your Honor. THE COURT: Then that resolves MR. LONG: Thank you. (Whereupon, it. Good job. Thank you for working Court adjourned at 1:50 p.m.) 12 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of the same. Laura F. Handley ~ Official Court Reporter The foregoing record of the proceedings on the hearing of directed to be filed. Date the within matter is hereby approved and Edward E. Guido, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.J. FISHER & ASSOCIATES, INC., Plaintiff LOCKE PROPERTY COMPANY, INC.,: Defendant : NO: 01-Civil-5477 CIVIL ACTION - LAW K" ' ce' J,~t~-n~ nff£ O ino~y reun me ;'ct .... for Plait' entered by rder of Court dated January 2, 2004, in the amount of Nine Thousand and 00/100 ($9,000.00) Dollars to a judgment in the amount of Nine Thousand and 00/100 ($9,000.00) Dollars. Service of this Praecipe was mailed to opposing counsel, Robert H. Long, Jr., on March 23, 2004. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Date: BY:cra~e~hl~ k~-,~d'~ Esquire 3464 Trindle Road Camp Hill, PA 17011 (717) 763-7613 Attorney ID No: 52801