HomeMy WebLinkAbout95-01219
PFS:8869-ll.CMP
1. The Plaintiff is Telco, Inc., a corporation organized
and doing business under the laws of the Commonwealth of
Pennsylvania with a principal place of business at 1224 Cross
Keys Road, Reading, Berks County, Pennsylvania 19605.
2. The Defendant is Adams County Asphalt co., Inc., a
Pennsylvania corporation organized and doing business under the
laws of the Commonwealth of Pennsylvania, with a registered
address at 614 North Front street, P. O. Box 1531, Harrisburg,
Dauphin county, Pennsylvania 17105.
3. The Plaintiff, Telco, Inc., (hereinafter "Telco") is
engaged in the sale, supply and installation of traffic signals
and related equipment and services.
4. The Defendant, Adams County Asphalt Co., Inc.,
(hereinafter "Adams County Asphalt") is a general contractor in
the construction business.
5. Adams County Asphalt solicited bids from
subcontractors including Telco in order to satisfy certain
contractual obligations of Adams County Asphalt to Cumberland
Valley School District in connection with a construction project
at the Cumberland Valley Middle School (hereinafter "Middle
School project").
6. By a proposal dated July 13, 1994, (hereinafter "Bid
proposal"), Telco offered to Adams County Asphalt to supply and
install all necessary equipment, labor and material for the
traffic signalization for the Middle School Project at the
2
.
,I
I
I
I
I
I
I
I
I
I
I
i
I
i
I
I
!
i
:
I
I
,
,
I
I
i
,
.
PFS:BB69-11.CMP
.
.
intersection of Carlisle Pike (SR 0011) and Cumberland Valley
High School Driveway in Silver Springs Township, Cumberland
County, for the lump sum price of Forty-four Thousand Three
Hundred Fifteen Dollars and 95/100 ($44,315.95) plus Two
Thousand Ninety-nine Dollars ($2,099.00) for necessary signs and
Three Thousand Seven Hundred Ninety-Five Dollars ($3,795.00) for
necessary pavement markings. A true and correct copy of the Bid
Proposal is attached hereto as Exhibit "A" and incorporated
herein by reference.
7. Included in the Bid Proposal was the condition that
payment be made by Adams County Asphalt to Telco as follows:
a. One-third (1/3) upon completion of Underground;
b. One-third (1/3) upon receipt of Equipment for
project; and
c. One-third (1/3) prior to traffic signal turn on.
B. On July 2B, 1994, Telco forwarded two executed copies
of the Subcontract Agreement for the Middle School Project one
of which was then counter-signed by Robert M. Mumma II,
President of Adams County Asphalt, (hereinafter "Mumma"), and
returned to Telco. A true and correct copy of the Subcontract
Agreement is attached hereto as Exhibit "B" and incorporated
herein by reference.
9. The Subcontract Agreement was executed after the
effective date of the Contractor and Subcontractor Payment Act,
73 P.S. S 501 et.sea., (hereinafter "the Payment Act").
3
,
PFS: BB69-11.CMP
. .
10. The Subcontract Agreement contained the fOllowing
special provision regarding contract price and payment
requirements by Adams County Asphalt to Telco:
a. One-third (1/3) upcn completion of Underground;
b. One-third (1/3) upon receipt of Equipment for
project; and
c. One-third (1/3) prior to traffic signal turn on.
11. On October 26, 1994, Telco commenced work on the
traffic signal installation at the Middle School Project,
including the provision of signs and pavement markings.
12. Telco performed all of its obligations in accordance
with the terms of the Subcontract Agreement and in a
professional and workmanlike manner.
13. Telco completed performance under the terms of the
Subcontract Agreement on November 15, 1994.
14. Telco is entitled to payment by Adams County Asphalt
for its performance under the terms of the Subcontract Agreement
and under the provisions of the Payment Act.
15. On November 16, 1994, Telco forwarded its invoice for
services rendered under the terms of the Subcontract Agreement,
Invoice No. 5567, in the total amount of $50,209.95, to Adams
County Asphalt for payment. A true and correct copy of that
invoice (hereinafter "Invoice"), is attached hereto as Exhibit
"c" and incorporated herein by reference.
16. Payment was due under the terms of the Subcontract
Agreement and the Payment Act on or before December 5, 1994.
4
PFS: 8B69-11.CMP
.
17. Telco made repeated attempts to telephonically contact
Mr. Mumma to inform him that payment of the Invoice was past
due.
18. Thereafter, Telco sent a letter by certified mail,
return receipt requested, addressed to Mr. Mumma and dated
January 25, 1995, (hereinafter "First Demand Letter"), informing
him that payment of the Invoice was past due and demanding
payment by Adams County Asphalt. Adams County Asphalt personnel
refused to sign the return receipt. A true and correct copy of
the First Demand Letter is attached hereto as Exhibit "0" and
incorporated herein by reference.
19. Telco thereafter sent the First Demand Letter to Mr.
Mumma by regular certified mail.
20. By letter to Mr. Mumma dated February 14, 1995, sent
by certified mail, return receipt requested and first class
mail, (hereinafter "Second Demand Letter"), Plaintiff's counsel
again demanded payment of the Invoice and informed Adams county
Asphalt of Telco's intention to file suit and seek relief
including all remedies provided by the Payment Act. A true and
correct copy of the Second Demand Letter and certified mail
receipt is attached hereto as Exhibit "E" and incorporated
herein by reference.
21. To date, payment due and owing under the terms of the
Subcontract Agreement and the Payment Act has not been made.
5
PFS: 8869-11. CMP
,
-
22. As set forth in the Invoice, Telco is entitled to
impose a service charge of one and one-quarter percent per month
on all amounts past due, as is the custom in the industry.
23. Adams County Asphalt has no defense or justification
for its wrongful refusal to pay the amount due under the terms
of the Subcontract Agreement and the Payment Act.
24. Any opposition or defense interposed by Adams County
Asphalt is obdurate, vexatious, frivolous, and is interposed
solely for purposes of delay.
25. The amount in controversy exceeds the jurisdictional
limits for compulsory arbitration.
WHEREFORE, Plaintiff, Telco, Inc., demands judgment in its
favor and against the Defendant, Adams County Asphalt Co., Inc.,
in the amount of $50,209.95 plus one and one-quarter percent of
that amount per month from December 5, 1994, until the date of
judgment, plus all remedies which may be provided under the
Contractor and Subcontractor Payment Act, 73 P.S. S 501, et.
~, plus costs of suit.
KOZLOFF, DIENER, PAYNE & FEGLEY
'--a<.~ ~H.
Peter F. Schuchman, Jr., EsquirJ----
Attorneys for Plaintiff
2640 westview Drive
P. O. Box 6286
Wyomissing, PA 19610
(610) 670-2552
Attorney I.D. No. 69343
6
PFS: 8869-11. CMP
,
No.
TELCO, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
ADAMS COUNTY ASPHALT CO.,
INC. ,
Defendant
JURY TRIAL DEMANDED
VERIFICATION
The undersigned, having read the attached Complaint
hereby verifies that all averments of fact not appearing of
record contained in the attached Complaint are true and correct
to the best of the undersigned's personal knowledge or
information and belief. To the extent that the Complaint is
based on information provided to the undersigned by counsel, the
undersigned has relied upon counsel in taking this verification.
The language is that of counsel. This verification is made
subject to the penalties of 18 Pa.C.S. section 4904 relating to
unsworn falsification to authorities.
TELCO, INC.
Dated:
., J-r, /1,)-
. .
BY:
TITLE:
_I?~LJ q. JJ--.-
/nd.
'"
7
~
~rnpn5nl
Paqe .'10
of
Pages
- " .
r . ,
! ~! l1C3(h~(!)Q arn~~ -' Phone: 16101916.6200
.
I - R.O, #2 Box 2B81 Fax: (610)916.1377
. I Cross Keys Road
! ! Reading, PA 19605
-
~OPOSAL SU8MlnED TO !'HONI IOA1I
.'.daIl'S Cccnt:r )..sphalt (i17) 234-02';01 ;'~ly . ? .. ~C.
-~, _....'
.5~RU~ ..oaMME
P. O. Box 1531 Ct:rrberlar.d "",lIe'! :1idCle Sch:ol
=TY. srATI AND Z!'CCDI .;01 ~OCA no",
:iar=-is~ur; , PJl.. 17105 Carlisle Pike ~ Cl:ml:erland 'lalle',
A"CHITICT IDATIO'~HS ..01 ,..o,rtt
)..ttn: .t::I,;; :<:er-.r.edy P.igh Scl:col Drive'Jiay - Traffi Signal
~---
w. nerecy submit IpeclfiClllon.lnd esllml,,1 for:
~o1e propJse to supply ar.d ir.stall all ~lecessary Equiprent, laj:or
ar.d ll'2.terial for tl':e traffic signalization at the L'ltersection
of Carlisle Pike (SR 0011) ar.d C\.:rrberlar.d Valley P.igh School
Drive'Jiay in Silver Spri;:;s Tcwnship, CUrN::erland County for the
Lurp St.:lII Price of:
$44,315.95
NCTE: ~.bove price eces N:11' include signs or paver.ent markings.
If required there 'rill I::e additional cha.."'g'es as follcws :
SIGNS $ 2,099.00
PA~7r loIl\P.Y.INC:-5 3,795.00
I We 'ropose hereby:o furnish material and labor - complete In accordance with above specifications, for the sum of:
SEE ABOVE BPEl\KtGlN dollars (S
),
.'."'.'" !o:M .....G...!O.......,
One-Third (1/3) '.:;:or. ~letion of Ur.der;rour.d, One-Thi...-c. (1/3) ~;:on recei;:t: ~f E..,-u:.. ;:r:.e. 'lt
:::r '.::"=':e,=,:. and Or.e-Thirc (1/3) ::rior ':~ ~a=fic s:.cr.al t..:..."":'l en.
"II m,""" 'l"'f."tttcltOM ISlOKllied. All.....,. fa be CGmOltltcl ,I" wo"m,"I,k, "'I""'f AUlhotiUd .~_L-,-.../ Co) r .. ;
UI:OIlS.", :~ .""cltd i:lf1Ct1C", Afty ,ltetlllOft Ot O-lIlIIn If om .oo.e totCJ'oeltoOll, '"VOfVI^9 .'..,:,.....,....
..,,:t (011. _II De 1'.Iolted antr WOO" wnlll" OIdl'" ,,,. w,ll tltcom. 'I' t.U' cn.", 0\1" ,Nt SiGnllur. . -
'00.. Ihl tll",ulI' All If,..m."" CO"U",,"I '*" ..".... ,",C'"II or dll'''' l)tyond ~'" ?.icha.--c ~ HilTner - presic.ent
C:O"trOl 0",""'0 U'ry "'I. fOlMdo .twlOI"" "ICIIU", ,n''!f"nn, Cuf war.." ,,.lul" ~tcI Notl: ThiS DrOOOSill mily 30
,., Nor"""" t C~""'IIOI'II"'Yflnc,. wltnd,'W" by us If nOl lCelPlld wunln ell",
~rr1!ptllnr1! af Jropo9111 -Tho .ba.. p';OII. Ip.o,I;OlllO""
,nd conditions ,,. UUSI.C10ry and Ir. hltlbYICCIOled. You I,. .u1homed 10 Sign.lu"
do UII work IS speCified. Paym.nl will be m.dl IS aullined .bov..
0111 of Accep1.nce Sign.lutl
.,.,..,,,..
Form PP.Q2
/. "'.
,--.....
,
"
.<- ,
'.'
"
.
SUBCONTRACT AGREEMENT
ADAMS COUNTY ASPHALT COMPANY, INC.
P.O. Box 1531
Harrisburg, PA 17105
Phone: (717) 234-0204 FAX: (717) 257-5373
CONTRACTOR
WITH
TELCO, Inc.
R.D. 12 Box 2881
Cross Keys Road
Reading, PA 19805
SUBCONTRACTOR
PROJECT: Cumberland Valley New Middle School
JOB NUMBER: 550
~
WORK: Instal traffic light
DATE: 7/14/94
\.
\
/-::::..
,
.'CUMBERLAND VALLEY MIDDLE SCHOOL/550
June 14, 1994
TELCO, INC
.
'........
SUBCONTRACT AGREEMENT
This agreement made and entered into, by and between Adams County
Asphalt Company, Inc. a Pennsylvania corporation, having a
principal office at 614 North Front Street, P. O. Box 1531,
Harrisburg, Pennsylvania 17105 hereinafter called "Contractor",
of the one part and hereinafter called the "Subcontractor", of
the other part:
TELCO, INC.
R.D. '2 bOX 2881
CROSS KEYS ROAD
READING, PA 19805
PHONE: 610-916-6200
FAX: 610-916-1377
1. On 5/10/93, a contract has been entered into between
Cumberland Valley School District hereinafter called the OWner,
and the Contractor for the construction of Cumberland Valley New
Middle School which Contract, Addenda, if any, Plans,
Specifications, Addenda thereto, and General and Special
Conditions all will collectively be hereinafter referred to as
the Principal Contract. The Subcontractor does represent that it
has carefully and fully examined all of the documents that are
collectively designated as the Principal Contract and is
thoroughly familiar with each of them and Subcontractor further
represents that the site for the work has likewise been examined
and the site for the work and the conditions present are known
and are familiar to the Subcontractor. The parties hereto agree
that the Principal Contract as herein defined is incorporated by
reference in every particular in this Subcontract and is a part
hereof. In the event, however, of any conflict between the
provisions of thin Subcontract and of the Principal Contract, the
provisions of this Subcontract shall control.
2. The Contractor does hereby ,assign, set over and sublet
to the Subcontractor, and the Subcontractor does hereby covenant
and agree with the Contractor to perform and construct in a
satisfactory and workmanlike manner, and in accordance with the
terms and conditions of the Principal Contract, to the approval
and acceptance without condition, of the OWner and of the
Contractor, that portion of the work of the Principal Contract as
herein designated as follows:
(a) SCOPE OF WORK: Supply all equipment, labor, and
materials to istall the traffic liqht at the intersection of SR
0011 and Drive "B" as per the plans and specifications.
ITEM' 1
Quantity: 1 complete light assymbly.
CONCUR:
RMMII ~
SUBCONTRACTOR If. d. 1+
2
,~...
",
"CUMBERLAND VALLEY MIDDLE SCHOOL/550
June 14, 1994
TELCO, INC
--
.
CONTRACT AMOUNT: $44,315.95
EXCLUSIONS:
SUBMITTALS:
(a)
(b)
Equipement
Special Conditions to Schedule of Work
1. Subcontractor to perform work in accordance with the project
specifications and contract drawings.
2. All materials supplied and/or used by the Subcontractor
shall meet requirements and specification for this project
and all material shipments must be accompanied by certification.
3. Subcontractor is responsible for administrative procedures
and requirements associated with subcontracted schedule of
work.
4. Subcontractor is required to
as required by specifications.
5. Quantities of work performed are to be verified by the
Contractor.
6. Subcontractor are bound to prevailing wage schedule
(attached). Certified payrolls must be submitted to
Contractor in a timely manner.
7. Subcontractor shall be responsible for
assessed against Contractor due to lack of
Subcontractor.
8. Subcontractor to commence work within 48 hours of notice
from Contractor and proceed with all diligence.
9. Contractor reserves the right to issue a joint check to
Subcontractor andlor material suppliers.
10. Subcontractor required to have qualified OWner approved
supervisor on Project at all times.
11. Subcontractor required to have all applicable sales tax
included in prices.
furnish evidence of insurance
any penalties
performance by
3. The Subcontractor by executing this subcontract,
represents and warrants to the Contractor that is qualified,
capable, experienced and available to perform the Schedule of the
Work as set forth in paragraph 2 of this Subcontract agreement
under the terms and conditions of the Principal Contract and this
Subcontract, in the quantity and for the amount therein set
forth, and within the time as is, during the execution of the
Principal Contract, designated. The Subcontractor does further
represent to the Contractor that where prequalification to
perform the work in this contract is required by the OWner and is
a condition to contracting or subcontracting to perform such
work, that the Subcontractor is duly so prequalified and will
,,-,
CONCUR: CONCUR: RMMII LN;uft-
RMMII
SBBBOBDJUla:lDBRd? 4, H,
3
-,CUMBERLAND VALLi." MIDDLE SCHOOL/SSO
June 14, 1994
TELCO, INC
.
remain prequalified for such work for the duration of this
Subcontract, including any addition or extension thereof.
4. INSURANCE REQUIREMENTS:
out and pay for:
The Subcontractor shall take
(a) WORKMEN"S COMPENSATION and EMPLOYER'S LIABILITY
insurance in accordance with the laws of the State of
Pennsylvania and the Federal Statutes.
(b) CONTRACTOR'S PUBLIC LIABILITY and PROPERTY DAMAGE
INSURANCE. Said policy of insurance will be written to provide
for the following limits:
$1,000,000.00 dollars for all damages arising out of bodily
injuries to or death of one person, and subject to that limit for
each person, a total of $3,000,000.00 dollars for all damages
arising out of bodily injuries to or death of two or more persons
in anyone accident, and regular contractors property damage
liability insurance providing for a limit of not less than
$1,000,000.00 dollars for all damages arising out of injury to or
destruction of property in anyone accident and subject to that
limit per accident, a total (or aggregate) limit of $3,000,000.00
dollars for all damages arising out of injury to or destruction
of property during the policy period. This policy of insurance
shall be endorsed as follows: To cover the explosives and
collapse hazards and injury to or destruction of wires, conduits,
pipes, mains, sewers, or other similar property, or any
apparatuses in connection therewith, below the surface of the
ground, as injury or destruction is caused by occurs during the
use of mechanical equipment for the purpose of excavating or
drilling or injury to or destruction of property at any time
resulting therefrom.
(c) Public Liability and Property Damage insurance
covering the operation on any motor vehicle used by or for the
account of subcontractor in connection with the work to be
performed under this subcontract. BODILY INJURY LIABILITY
$1,000,000.00 dollars each person and $3,000,000.00 dollars each
accident, PROPERTY DAMAGE LIABILITY $1,000,000.00 dollars each
accident.
The contractor shall furnish three (3) copies of the policy
and three (3) certificates of insurance for the following of the
above mentioned pOlicies.
(a) Workmen's Compensation
(b) Contractor's Public Liability and Property Damage
Liability Insurance
(c) Public Liability and Property Damage Insurance covering
the operation of motor vehicles.
CONCUR:
RMMII 3'vwJ2
CONCUR:
RMMII
SBBBOBlIl1UUllrQlsll/ a 1+,
4
.-..""
CUMBERLAND VALLEY MIDDLE SCHOOL/550
June 14, 1994
TELCO, INC
.
All of the above mentioned policies insurance shall provide that
said policies of insurance shall provide that said policies shall
not be changed or canceled until ninety (90) days written notice
has been given to the contractor.
5. PROGRESS OF WORK The subcontractor will promptly begin
said work as soon as he is notified by the Contractor and will
carry forward and complete said work as rapidly as the progress
of the work of the Contractor will permit. The subcontractor
will furnish said materials, labor and equipment, prosecute said
work with diligence, without delay, and will not in any manner
delay or otherwise interfere with the work of the contractor or
other Subcontractors. Should the said contractor conclude that a
subcontractor is unjustly and without valid reason delaying said
work, or the Subcontractor has performed said work in a deficient
or improper manner, he shall so notify said subcontractor by
certified or registered mail, or by telegram, setting forth the
compliant in detail, and the subcontractor will have two (2) days
from the receipt of said mailed complaint or telegram to correct
the compliant. In the event Subcontractor fails to comply with
said notice and to correct the complaint, said contractor shall
have the legal right to take possession of all equipment,
machinery and supplies, in and up on the contract site,
including, but not limited to; construction machinery, equipment
and supplies of the Subcontractor and to use the same to correct
the complaint or to have the complaint corrected by subletting
this work to others, and said construction machinery and
equipment as needed to e used to correct said work deficiencies
shall be used by the contractor or any subcontractor designated
by the contractor to so use the same. The Contractor shall
charge the expense of the correcting work against said
subcontract and deduct the same from the contract, and should the
amount of payments due on said contract be insufficient, to
collect the said deficiency from the subcontractor by legal
process and/or surety company, or its agents, by request or legal
process. Upon correction of said work, of the deficiency, the
machinery and equipment of the subcontractor shall be delivered
to Subcontractor, upon notice, at the contract site.
subcontractors shall supply skilled and experienced employees
ready and able to work in harmony with the Contractor and with
other prime contractors and subcontractors andlor their
employees, acceptable to the contractor, the Owner and the
Owner's representatives.
In performing the foregoing work the Subcontractor shall
furnish all labor, equipment, materials, supplies and everything
necessary to furnish or incidental thereto or in connection with
the performance by it of its work as required and called for
under the provisions of the principal Contract. It is understood
and agreed by the parties hereto that the quantity of work as
shown above are approximate only and are subject to increase or
'17" , t11
RMMII k:'MIu.!!.-
CONCUR:
CONCUR:
RMMII
SBBBOl9nMCCmBR If. If. H-
5
...-....
"
CUMBERLAND VALLEy'MIDDLE SCHOOLI550
June 14, 1994
TELCO, INC
.
decrease and it is further understood that all quantities of work
whether increased or decreased are to be performed at the unit
price above quoted and agreed upon and that the Subcontractor, in
all events, shall be entitled to be paid for that number of units
finally determined upon by he OWner, if the OWner's determination
is not acceptable to the Subcontractor, the Contractor shall
appeal such determination to the extent such is feasible and
permissible at the Subcontractor's written request to do so and
at the Subcontractor's cost and expense.
6. TIME ALLOWED FOR CONSTRUCTION OF PROJECT It is
expressly understood and agreed by and between the parties hereto
that time is and shall be considered the essence of the contract
on the part of said Subcontractor and should the said
Subcontractor fail to begin, continue and complete the work as
herein provided and should the Contractor suffer or permit said
Subcontractor to occupy more time than required under this
agreement, in that event the said Subcontractor hereby covenants
and agrees to indemnify and save harmless the said Contractor
from any loss an damage which may be compelled to make good to
the OWner, for or on account of delay in the completion thereof,
insofar as said delay was caused by the said Subcontractor. If
the Subcontractor claims he is delayed in the prosecution of his
work through no fault of his own and that such delay is costly to
him, he shall be entitled only to such compensation for such
delay as is allowed and paid for such by the OWner to the
Contractor to the extent such is attributable to the
Subcontractor's work. Any such claim by the Subcontractor shall
be submitted to the Contractor in writing, containing all
pertinent details, by the Subcontractor within ten (10) days of
the alleged delay. Failure of the Subcontractor to give such
written notice within ten (10) days shall terminate any right of
the Subcontractor to make such claim to the Contractor or the
OWner.
7. CONDEMNATION OF WORK The Subcontractor shall provide
sufficient, safe and proper facilities at all times for the
inspection of the work by the Project Engineer, Architect and the
Contractor or their authorized representatives, for the
inspection of the Subcontractor's work and materials used or to
be used. He shall, at once, remove all materials, and take down
and rebuild all portion of the work condemned by the Project
Engineer, the Architect and the Contractor or their
representative, upon receiving notice in writing of such
condemnation.
8. EXTRA WORK All extra work to be
Subcontractor must be condensed to writing
agreed upon before such work is undertaken.
agreements must be signed by representatives
performed by the
at a rate of pay
Said extra work
of the Contractor
CONCUR:
CONCUR:
{, IIIl~(
RMMII ('filtH
=-
RMMII
SBBBOI9Il1USli:lIlBRff 4. ~
6
, .,
,""
CUMBERLAND VALLEY MIDDLE SCHOOL/550
June 14, 1994
TELCO, INC
.
and Subcontractor and will be subject to the terms and conditions
of Subcontract Agreement.
9. INDEMNIFICATION OF CONTRACTOR PATENTS AND PATENT
RIGHTS The Subcontractor hereby covenants and agrees to
indemnify and save harmless the Contractor from any and all
claims or suits from infringements of patents or violation of
patent rights, including all costs and expenses to which the
Contractor may be put in defending any action that may arise
through the work of the Subcontractor.
10. INDEMNIFICATION OF CONTRACTOR AND OWNER FROM ALL
LIABILITY The Subcontractor shall have charge of the entire work
until completion and acceptance, and shall alone be liable for
and shall pay all loss or damage caused by him or by his
servants, agents or employees to property, buildings or adjacent
work and for any accident to persons that may occur during the
performance of the work covered by this Subcontract or at any
time thereafter as a consequence of the performance of said work.
The Subcontractor shall observe all state and municipal laws,
ordinances and regulations and shall defend and save harmless the
Contractor and the Owner from all suits and claims whatsoever for
loss of life or injury occurring to employees of the
Subcontractor who perform such work. The Subcontractor agrees to
fully indemnify, protect and save harmless the Contractor and the
Owner from all liability from all claims, loss, damage, suits and
actions of every kind and from all costs and expenses in
connection with such claims, suits and actions due to injuries to
persons or damage to property whether resulting from accident,
negligence or any other cause whatsoever occurring during the
performance of the work covered by this Subcontract or at any
time thereafter as a consequence of the performance of the same
or which may at any time occur or result from or be caused by
such work and if there are any such claims unsettled when the
work herein provided for is completed, final settlement by the
Contractor and Subcontractor shall be deferred until such claims
are adjusted or suitable special indemnity acceptable to the
Contractor is provided by the Subcontractor.
11. TAXES The Subcontractor shall pay all the Pennsylvania
Sales and Use Taxes on all taxable items, and all Federal Old Age
Benefit Taxes, Federal Unemployment Compensation Insurance on all
labor furnished under this contract, as required by the
Commonwealth of Pennsylvania and the United States Government, as
well as any other taxes, Federal, State or Local, applicable to
or occasioned by the Subcontractor's performance of this contract
or employment of persons hereunder.
CONCUR:
CONCUR:
.<"7 " (/f
RMMII ~/II1 ~i.~'
RMMII
SBBBOrinua:lDBR J? 'N.
7
~
CUMBERLAND VALLEy'MIDDLE SCHOOL/550
June 14, 1994
TELCO, INC
......
12. CONTRACT COMPLIANCE The subcontractor shall abide by
all referenced or identified prime contract provisions for
Federal aid projects, statutes, rules, regulations or procedures
applicable thereto as well as by all such prime contract
provisions calling for observance of certain Pennsylvania or
local statutes, rules, regulations or procedures whether or not
specifically referred to in this subcontract and whether or not
forms or certificates are supplied to the subcontractor to
achieve such compliance; without limitation such matters include
Federal and/or State non-discrimination provisions, re-
negotiation provisions, minimum wage provisions, anti kick-back
provisions, pay day provisions, daily and weekly overtime
provisions, payroll deduction provisions, payroll classification
and apprentice provisions. payments under this subcontract may
be withheld at any time to the extent necessary to affect
compliance with this or any other article of this subcontract.
Moreover, the subcontractors shall maintain a record of the total
cost of all materials and supplies purchased for and incorporated
in the work and also the quantities of those specific materials
and supplies and in the units shown. upon completion of the
subcontract, this record, together with the final labor summary
shall be submitted to the State District Engineer, for all State
and Federally assisted projects, for the project on the State's
appropriate form for such or on a form supplied by the prime
contractor in accordance with instructions thereon. The
quantities for the listed items shall be reported separately for
roadway and for structures over twenty feet long as measured
along the entire center line of the roadway.
.
13. ASSIGNMENT OF SUBCONTRACT None of the rights under
this Subcontract, including assignment of funds, shall be
assigned by the subcontractor without prior written consent from
the Contractor. Any attempt to assign the Subcontract will
operate as an instant forfeiture and repudiation thereof by the
subcontractor and the rights of the parties shall be determined
in the same manner as though the subcontractor had at the time of
such attempted assignment failed and refused to continue to
perform the contract.
14. EXTENSION OF TIME No allowance of time will be made
the Subcontractor for delay in preparing his drawings or, in
securing approval of the OWner and the contractor's engineers
when such drawings are not properly prepared for approval of the
OWner and the Contractor's engineers.
Extension of time to be
the same only as is granted
will be in accordance with
contract.
granted to the Subcontractor will be
to the contractor by the OWner, and
the Specifications in the principal
CONCUR:
CONCUR:
RMMII tHI!L@'
RMMII
SBBBOr:lIllUSa:UlBRIf? d. J.I.. .
8
CUMBERLAND VALLEY"MIDDLE SCHOOLI550
June 14, 1994
TELCO, INC
.
15. CONTRACT AND LABOR AND MATERIAL BONDS The
Subcontractor further agrees that he will simultaneously, with
the execution of this agreement, provide the Contractor, if
requested, with a Contract Bond, covering satisfactory
performance of the work contracted, the penal sum of 100\ of the
amount of the contract, and an "Additional Bond for Labor and
Materials," covering the prompt payment in full for utility
aervices rendered to sub-Subcontractors and for all materials
furnished, rental for equip,ent ,used, and/or labor supplied or
performed, in the prosecution of the work, and also in the penal
sum of 100\ of the amount of the contract. Both bonds must also
be executed by a Corporate Surety satisfactory to the Contractor.
Payments under this subcontract may be withheld at any time
during the life of same for non-compliance with the above bonding
requirements.
16. TERMS OF PAYMENT The Contractor agrees to pay the
Subcontractor his portion of all payments received by the
Contractor from the OWner wi thin Seven (7) -, days after receipt
thereof. It is also understood and agreed that all estimates
shall include the materials,on the site if so permitted by the
OWner as a part of the current estimates.
It is further understood and
account shall operate as an approval
or any part thereof.
17. APPROVAL OF SUBCONTRACT It is understood and agreed by
the parties hereto that this agreement is subject to the approval
of same by the OWner.
agreed that no payment on
of said work or materials,
It is also understood and agreed that this agreement is
subject to the principal Contract in its entirety, entered into
by the Contractor and the OWner, relating to this particular
project.
18. CONTRACTOR'S RIGHTS TO WITHHOLD PAYMENTS
IT IS UNDERSTOOD AND AGREED THAT THE SUBCONTRACTOR
SHALL PAY -
(a) All employees unconditionally and not less often
than once a week.
(b) For all
later than the lOth day
which said services are
transportation and utility services not
of the calendar month following that in
rendered.
(c) For all materials, tools,
expendable equipment not later than the 10th
CONCUR:
CONCUR:
rentals, and other
day of the calendar
-, .~
. 'I; t' J
RMMII UllIIVJ;V
RMMII
SBBBOI9I11UAlrlDBRJf.' 4, J..I-
9
'.
CUMBERLAND VALLEY-MIDDLE SCHOOL/SSO
June 14, 1994
TELCO, INC
.
month following that in which said materials, tools, rentals and
equipment are delivered at the site of the project.
A Contractor shall have the right to withhold payments from
the Subcontractor, in addition to retain percentages as may be
provided in the Principal Contract, of such amounts as may be
necessary both to insure compliance with all of the terms of this
Contract by Subcontractor, for work performed by the Contractor
or other subcontractors in accordance with paragraph 4 of this
contract, and as necessary to pay all just claims for labor and
services, rental and materials furnished in and about said work,
which is the obligation of the Subcontractor to pay. The
Contractor shall have the right, acting as agent of the
Subcontractor, to apply such retained amount to the payments of
such just claims and for work required to be performed.
19. SUBCONTRACTOR'S RELEASE TO CONTRACTOR Upon receipt of
final payment, the subcontractor does hereby agree to give the
Contractor a duly signed release relieving the Contractor from
any liability in regard to monies due under this Subcontract, and
the Subcontractor will certify that all of his obligations for
services, materials, equipment rental, tools, etc., incurred on
this Subcontract have been paid and that if any liability should
occur on his behalf, then the Subcontractor will indemnify the
Contractor.
20. APPROVAL OF QUANTITIES Prior
final quantities, the Contractor shall give
of such quantities to the Subcontractor for
to the acceptance of
five (5) days notice
his approval.
21. PRIOR NEGOTIATIONS AND AGREEMENTS All negotiations and
agreements prior to the date of this agreement are merged herein.
This Subcontract has been read and is fully understood by the
Subcontractor.
The Contractor and the Subcontractor for themselves,
successors, executors, administrators and assigns, hereby
to the full performance of the covenants of this agreement.
their
agree
TERMINATION If prime Contractor's work is terminated or
abandoned, if Subcontractor cannot work in harmony with other
Contractors, Subcontractors or their employees, is in breach of
contract or it is otherwise necessary for the welfare of the job
in the judgment of the Contractor to terminate this contract,
Contractor may do so by written notice to Subcontractor and,
absent any breach of contract by Subcontractor, pay Subcontractor
on a pro rata basis for contract completion to that point
accordingly as the prime contractor has been so paid for such
work by the Owner, but Subcontractor shall not receive nor be
entitled to anticipated profits for any work not completed by
Subcontractor at time of termination. .,}
,.,
~II ~~~~t(~
CONCUR:
CONCUR:
~II
SBBB06nJU1lClDBR j{. 4./J..
10
,.
, . ,
I_
'G
~
;" "
...
.
.
~][h'Jj~~ aJlca~
R.D. #2 Box 2B81
Crass Keys Road
Reading, PA 19605
SHIP TO:
.,
~._...
INVOICE
Phone: (610) 916.6200
Fax: (610) 91 e.; 377
SOLD TO: 1l.dams COUnt-f Jl.sFhalt CO., !r.c.
P.O. =Ox 1531
Po. :risb PA 17105
:a.: Il..--g , O"~I IN'ICICI NO, I ''3.
"/1 ,,'/tH :;:;,:;7 I
,lC::CUNT NO. re~Ms SWIP VI.. OUR ORoe~ NO. YOUR OROf~ NO,
I":'!\I Ne. oesc~lmoN QU,J.~':'Irf . 'RICE EX7i:.~S;ON
CUl1i:e:la.-d Valley Nell !'.iCdle Sc Iu:ol
Job No. 550
T:'a~~ic Sicr.a!.ization at t:-.e
~t~s~onof~~leP~e
(Sit 0011) ar.d ~lard Valley
Hi:::h School Drivellav in Silver
S~ri.;; Towr.ship - ~o:: $ 4' "1- --
-~ ..,oJ ;).~::
Siqn Installation ts , 2/C9~. :.j
Pa~;ement ilolarkir.qs ~ , 3,i95.CO
'!OT'J.L 5 51'), 2C~. is
Tlrms: AI nocld - p..t due IccountJ ''''Dit~ to JI~ic. 1"'1';1 ,'1:~' ;.rtnonlf'l. ,15~;I" Innum).
Minim"m 1tl"WIU C~"'Q' i. St.OO air mantn.
DAVID M. MOZLO""
WALTE" M. DIENE", .J".
.IcaTVN Q. "'AVNI:
.IAMea ... ,.COLEV
.OCRATE. .I. QCO..OCADI.
..ICM LONO
.JAMe. .... LILLI.
.Ic,.,...I:Y ... ELLIOTT
...IAN ,. .OLAND
.A....V w. aAWTELLE
01:0..01: C. .ALeHUNA.
"'CTE" ,.. SCHUCHMAN, .J".
DANIEL" .CCME"
As you may know, the Pennsylvania Contractor and Subcontractor
Payment Act entitles a subcontractor who has performed his
obligations properly under the terms of a subcontract is entitled
to receive a penalty equal to 1% per month of any amount determined
/' to have been wrongfully withheld, together with attorney's fees and
\ expenses. If provision for payment of Telco's invoice dated
," - \ November 16, 1994 is not made by Friday, February 24, 1995, we will
initiate legal proceedings to collect that payment from your
\ company and, if necessary, we will initiate proceedings directly
\ with the bonding company.
1> ~~ \
... "...
; \~'i. \
~-' \
Q. '-'."\ \
~~\~.:\'"\
- .'" \
''c \ \_'~'.:\ \.s
...c;.'~.. \~.\~ ~~~~ \'\
- ,':' v. ,hard A. Hivner, President
..)... ,
r.:.'.r;:.. .'.~, "
.. .
e
e
-. ,
", .
.. .. J
LAW O,.,.ICES
KOZLOF'F. DIENER. PAYNE & FEGLEY
P..O,.C..ION"'L cO....O.....TION
2e40 WI:.TVICW DRIVE
ROo Box eaee
WvOMIIISINO. PA. .8e10
COUNaEL
,...ANMLIN E. ",00..1t UI 08.7'
(15.0) 870-215152
0,. COUNaCL
"'A"'C~ .I. CALA
February 14, 1995
TCLECO"'IER
(elOI 870-..&1
Adams County Asphalt Co., Inc.
P.O. Box 1531
Harrisburg, PA 17105
Attn: Robert M. Mumma, II, President
CERTIFIED MAIL, R.R.R. AND FIRST CLASS MAIL
Re: CUmberland Valley Middle School
Project/Telco
Our File No. 8869-11
Dear Mr. Mumma:
We have been advised by Richard Hivner, President of Telco, Inc.,
that your company has not remitted payment as called for in the
Contract between your company and Telco dated July 14, 1994. Mr.
Hivner has provided us with a copy of that contract, along with
correspondence and a copy of his invoice dated November 16, 1994
an4 a copy of his letter to you of January 25, 1995. Mr. Hivner has
also advised us that your company has not picked up its certified
mail from Telco. Mr. Hivner has also obtained a copy of the Payment
Bond which your company posted with the CUmberland Valley School
District.
Very truly yours,
KOZLOFF, DIENER, PAYNE & FEGLEY
James R. Fegley
DAVID M. "'-OZLOP'P'
WALTE." M. DIENE....J..
..I E.:'!Y '" sa. PAYNE
,JAMES ... ,.L'OLEY
aOC"ATES ,J. OEOAOEADla
"ICK LONG
,JAMEa .... LILLIS
,JE,,...EV A. ELLIOTT
...IAN , BoLAND
.A"AY W. SAWTELLE
OEOROE c. .ALCHUNAa
~ETER ,.. SCHUCHMAN, ,J".
gANleL p. .eCKER
2040 WC.TVIEW O"'vc
PO. BOM e3l"e..
WVOMIIISINO, PA. "1'1110
(eIO) e70..a5l52
0" COUNaEL
..AM ELA ..I. CALA
- .. .
COUNaeL . .
,RANKLIN e. ~OO"E III (I'a."1
February 14, 1995
TELItCO~IIt..
telO) e70-asal
Adams County Asphalt Co., Inc.
P.O. Box 1531
Harrisburg, PA 17105
Attn: Robert M. Mumma, II, President
CERTIFIED MAIL, R.R.R. AND FIRST CLASS MAIL
Re: cumberland Valley Middle School
project/Telco
Our File No. 8869-11
Dear Mr. Mumma:
We have been advised by Richard Hivner, president of Telco, Inc.,
that your company has not remitted payment as called for in the
Contract between your company and Telco dated July 14, 1994. Mr.
Hivner has provided us with a copy of that contract, along with
correspondence and a copy of his invoice dated November 16, 1994
an4 a copy of his letter to you of January 25, 1995. Mr. Hivner has
also advised us that your company has not picked up its certified
mail from Telco. Mr. Hivner has also obtained a copy of the Payment
Bond which your company posted with the cumberland Valley School
District.
As you may know, the pennsylvania Contractor and Subcontractor
Payment Act entitles a subcontractor who has performed his
obligations properly under the terms of a subcontract is entitled
to receive a penalty equal to 1% per month of any amount determined
~" _ to have been wrongfully withheld, together with attorney's fees and
I --=u>.nses. If provision for payment of Telco's invoice dated
---.1.6.(. 1994 is not made by Friday, February 24, 1995, we will
:ETOq" '0:"" -.......--1:l.roceedings to collect that payment from your
'lJ s::.EIP' ~,~, ---at:)', we will initiate proceedings directly
"., "''1:: SSc.:i/>y..A,'c.., --
~ C[oI:7"IfO ClUIF.q~""..:l.... Ie... ----
"[E ' Ci~';' ~ --
to:.. "0 . ~ftlJo'l"" CT;-rii:f.O --
~'a."c.t AJ . t':ElI't -- --
~~E~ ~~ --
I,ttn: ?.' ..""'..,,~ MARK OR DATE ---
~ n-.~ i' .... - ~ FEGLEY
p.o ~t: 'I. ,,~ !U
:~':/~ 7!.r1Jl"::''>'~ll: !\..l?, ",. " ~
.....~ ""-'. ."......esf,..,. ~CII
=9, p., ' li1~ _", .,Ifl
8 I, 1")705 -.' ~l
!)(j!l-11. a.,
.Jf>";t ....Q:
~ ~e
15'"
1515
"'..
"'a
,gif
~k
~ RECEIP
- ",""'" T ~OR
.~~ _ r C
'. ERTlFIEO M
AIL
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO.
JURY TRIAL DEMANDED
(0,
HAR B 10 119 AM '95
TELCO, INC.,
':" ," 0fFICE
01 "r "\1 L:\',i1HOW~'DkY
Cd;; ;)UiW C0'J!.TY
.- ~:r!."~)fLt:.all.
Plaintiff
VS.
Ir c) Sv
0~
"'''''W
-" )1)
J
OJ_ J~ ~-rJ
19:{l
@J..1 33
(;( tll(J
ADAMS COUNTY ASPHALT CO., INC.
Defendant
PLAINTIFF'S COMPLAINT
PETER F. SCHUCHMAN, JR., ESQUIRE
LAW OFFICl;:S
KOZLOFF. DIENER. PAYNE & FEGLEY
PHOFt:S510NAL COftPQMAllON
2640 WESTVIEW DRIVE
P 0 Bo< 62B6
WYOMISSING. p" 19610
,
,
SHIlIU..... S IUllTURN
CASS NO. 1995-01219 P
COMMONWIlA%.TH 0.. PIINNByz,VAN%A.
COUNTY 0" CUMaSftLAND
Tmx.eo :tNe:
VS.
A~.U. ~UN~Y ABP~~ eo :tNe:
Ill. Thom.. 1C1in.
, 8he~~~~, who b.~ng du1y .wo~n aaao~d~ng
to 1aw, .ay., that he Made d~1~gent ...Eah and ~nqu~EY ~o~ the w~th~n
named der.ndant, to v1tl
ADAM. C:OUNTY ASPHALT eo :tHe:
but wag unab1. to 1ocae.
IJ!Ihem
~n h~. ba~1~w~ak. He the~e~o~.
d.put~..d the .heE~~~ o~
to ..rve the w1th1n
DAUDH:tN
County, Penn.y1van1a.
CCHP%.A%NT
On Mareh
15t:h. 1995
, th~. o~~~a. w.. ~n reae~pt o~
the attached return rram
DAUPH:IN
County, Penngy1van1a.
ShtU:1rr'. COllt"l
Doaketing
Out o~ County
Surcharge
DAUPH%N COUNTY
18.00
9.00
2.00
25.50
$54.50 PmTll~ SCHUCHMAN J~
03/15/1995
80 .::/,?~,:}, /' ,- / < /
:;'( ~W./ . / /;r')
R.lmhomag K~n., Bharirr
Sworn and .ub.ar~b.d to baror. m.
t,,~.
.2J-...t day o~ IJ.L&...J_'
qo{ A. D.
19
C+ 1~
' t..<- fJ.~ .
J prothonotar~
'C . C -\ (I .. .. .,
I., i ne ourt or .::mmO:1 r s:s or \,.:.Jr.::"-::;lt'l:nr:: \".:;w,;;~'y,
Psnr:syl'lc:r:i ::
Telco, Inc.
'is.
Adans County Asphalt Co., Inc.
:-roo
95.1219 Civil Term
':1
----
~ow,
March 09. 1995
'.9_ 1. S".:-_-":l_'T'-:'-__ 0.':;' "'~r:;,"':""':t ""' CO.~f ':)~ ~Q
_. w~......_..!..n..,.... ~.,,:,,,!. ".__ ..
h=-~ c...71= the S~E oi
Daunhin
c,u:ty :0 =...-::-.::.: .:";c ',V:::.,
... .. . .. . ". -,..-
~ =-::u:::cu =:::q -.....- ~ == ~ =~:-~ ot ::: .:"::t:::::I.
-/,("/..;;;". , . /~~
-r ~~~~':"I-:.t:..!.1 ~,-...
Se.."1:! :It S.---u'.md C~u::rr. ::1.
.A. meavit or Sem~
~ow, !9 .. o\:!ca ~r. 1::-.-=
== wi':":"
-.:pan
:It
by ::u:~ :.0
~ cpr ci = ~:-=-t-""I
,.
:md -~,.:- ic:owu :0 :::.: :--~-... .:,,_-'
-'_' __L.
So =we:.
Sl:c:::i of
CGw:tT. ?::.
.swar: :me! s:zl:sc:-:i:le:i bc:cre
=:: ::::J c!:ly oi
'0
."-
COSJ.'::'
SEA""lc;
~a:r..Z,AG&:
.~: WA '"v! J.'
oS
"
:- '"--t
s
"----
h:\UI..I\pIto.l\pfl\odlt\ea69'lln.Dj
D4/D3/95
TELCO, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
ADAMS COUNTY ASPHALT CO.,
INC.
No. 95-1219 A.D.
Defendant
NOTICE OF INTENT TO ENTER DEFAULT JUDGMENT
TO: Adams County Asphalt Co., Inc.
P.O. Box 1531
Harrisburg, PA 17105
Attn: Mr. Robert M. Mumma, II, President
IMPORTANT NOTICE UNDER PA. R.C.P. RULE 237.1
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION
REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS
FROM THE DATE OF THIS NOTICE, A PRAECIPE FOR THE ENTRY OF DEFAULT
JUDGMENT WILL BE FILED AGAINST YOU, AND A JUDGMENT MAY BE ENTERED
AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR
OTHER IMPORTANT RIGHTS.
YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
Court Administrator
Fourth Floor Cumberland County Courthouse
Carlisle, Pennsylvania
Telephone: (717) 240-6200
KOZLOFF, DIENER, PAYNE & FEGLEY
I
Peter F. Schuchman, Jr.,
Attorney I.D. #69343
2640 Westview Drive
P. O. Box 6286
Wyomissing, PA 19610
(610) 670-2552
Date of Notice: ~ 3. IH5
IN 'lllE CXXJRT OF <lloM::N PLEAS OF
aJMBERLAND CXXJN'lY, PENNSYLVANIA
CIVIL ACl'IOO - LAW
NO. 95-1219 A.D.
df'R II IZo7PH'SS
TELCD, INC.,
0_" OffICE.
I -I.., j,!".tTIIO
()Ow/""liND ~~T,\r,y
rEi;IiS'rt'AC~11~n.
Plaintiff
VB.
ADAMS CXXJN'lY ASPHALT CD. I INC. I
Defendant
l;t;K'!'U'.I.CATE OF SERVICE for
tul'ICE OF INTENl' '10
m:rER DEFAULT JtJI:GIENl'
Peter F. SchucJl!II;~AJFl'~O;' Esquire
KOZLOFF. DIENER, PAYNE & FEGLEY
P"O'E..'ONAL CO""ORATIOH
2640 WESTVIEW DRIVE
P. O. Box 62B6
WVOMISSING. PA 19610
10: PL~'~
W1UAMI&lW.. __ -
lOPlMD."~
.J:JQ>()J vU (~'::-CT?-
=:''r'-=m~
.IUD_A ..rr.....,_-!NIJ-.r
COBEN & BUHTINGTON, P.C.
Roy s. cohen, Esquire
Attorney 1.0. No.1 32342
Renee xilqarriff, Esquire
Attorney 1.0. No.1 67580
1515 Market street, ste. 818
Philadelphia, PA 19102
(215) 564-1700
AI1ORNEYfOII h~,-~(k q-~\
1\J.(t~'\i'S u' .....\\,! t\j~~-~-t
- I
Attorneys for Defendant,
Adams county Asphalt Co.
ADAMS COUH'l'Y ASPHALT
COMPANY, INC.,
Defendant.
CASE NO. 95-12U
TELCO, INC.,
Plaintiff,
IN THE COURT OP COMMON PLEAS
OP CtlHBERLAHD COUH'l'Y
CIVIL ACTION - LAW
v.
CIVIL TERM
ANSWER AND NEW MATTER
Defendant, Adams County Asphalt Company ("ACA"), by and
through its undersigned counsel, hereby responds to the Complaint
of Telco, Inc. ("Telco") as follows:
1. Admitted upon information and belief.
2. Admitted.
3. Admitted upon information and belief.
4. Admitted.
5. Admitted.
6. Admitted in part and denied in part. It is admitted that
Telco submitted a bid proposal to ACA. However, the bid proposal
is a writing which speaks for itself and any characterization or
interpretation thereof is expressly denied.
By way of further
-
answer, it is denied that the proposal included a price for
necessary signs and necessary pavement markings. On the contrary,
the proposal set forth a price for these items only if Telco
performed them.
7. Denied. The bid proposal is a writing which speaks for
itself and any characterization or interpretation thereof is
expressly denied.
8. Admitted in part and denied in part. It is admitted that
ACA entered into a contract with Telco. However, the Contract is
a writing which speaks for itself and any characterization or
interpretation thereof is expressly denied.
9. Admi tted. By way of further answer , although the
Subcontract Agreement was executed after the effective date of the
Contractor and Subcontractor Payment Act ("Payment Act"), it is
denied that the Payment Act applies to this Project, which is a
Public Project.
10. Denied. The Contract is a writing which speaks for
itself and any characterization or interpretation thereof is
expressly denied.
11. Admitted in part and denied in part. It is admitted that
Telco commenced work on the traffic signal on the Project on
October 26, 1994. It is expressly denied, however, that Telco
installed all of the signs and pavement markings on the Project.
12. Denied. Telco did not provide all of the signs and
pavement markings that were required on the Project. In fact, it
was necessary for the School District to install some of the signs
and pavement markings on the Project.
2
13. Admitted in part and denied. It is admitted that Telco
completed the installation of the traffic signal by November 15,
1994. It is expressly denied however, that Telco performed all of
the installation of the signs and pavement markings on the Project
by November 15, 1994.
14. Denied. Telco is not entitled to payment for its
performance under the Subcontract because the School District's
representative has not certified Telco's work on the Project as
acceptable. Moreover, Telco is not entitled to payment under the
Subcontract because ACA has not been paid for any of this work by
the Cumberland Valley School District. By way of further answer,
it is expressly denied that Telco is entitled to payment for the
signs and pavement markings on the Project since Telco did not
complete this work.
15. Admitted in part. Denied in part. Upon information and
belief, it is admitted that on or about November 16, 1994, Telco
forwarded its invoice to ACA. It is denied that Telco completed
all of the work set forth on the invoice.
16. Denied. Telco is not entitled to payment for its
performance under the Subcontract because the School District's
representative has not certified Telco's work on the Project as
acceptable. Moreover, Telco is not entitled to payment under the
Subcontract because ACA has not been paid for any of this work by
the Cumberland Valley School District. By way of further answer,
it is expressly denied that Telco is entitled to payment for the
signs and pavement markings on the Project since Telco did not
3
complete this work. Further, even though it is denied that the
Payment Act applies to this Project, Telco would not be entitled to
receive payment under the Payment Act.
17. Admitted.
18. ACA is without sufficient knowledge or information to
form a belief as to the truth of the allegations in this paragraph
and therefore denies the same.
19. Admitted upon information and belief.
20. Admitted.
21. Denied. It is expressly denied that Telco is entitled to
payment for its performance under the Subcontract because the
School District's representative has not certified Telco's work on
the proj ect as acceptable. Moreover, Telco is not entitled to
payment under the Subcontract because ACA has not been paid for any
of this work by the Cumberland Valley School District. Further,
even though it is denied that the Payment Act applies to this
project, Telco would not be entitled to receive payment under the
Payment Act. By way of further answer, it is expressly denied
that Telco is entitled to payment for the signs and pavement
markings on the Project since Telco did not complete this work.
22. Denied. It is expressly denied that Telco is entitled to
impose a service charge in that Telco is not entitled to payment
for the work set forth on the invoice because the School District.s
representative has not certified Telco's work on the Project as
acceptable. Moreover, Telco is not entitled to payment under the
Subcontract because ACA has not been paid for any of this work by
4
the cumberland Valley School District. By way of further answer,
it is also expressly denied that Telco is entitled to payment tor
the signs and pavement markings on the Project since Telco did not
complete this work.
23. The allegations set forth in this pare'. 'aph are
conclusions of law to which no response is required. By way of
further answer, the Subcontract establishes that payment from the
owner to ACA for work performed by Telco is a condition precedent
to Telco's entitlement to payment for ACA. Moreover, even though
it is denied that the Payment Act applies to this Project, Telco
would not be entitled to receive payment under the Payment Act.
24. Denied. Under the terms of the Subcontract, ACA is not
liable to Telco until ACA receives payment from the owner for work
performed by Telco on the Project. By way of further answer, ACA's
defense is in no way obdurate, vexatious, frivolous, or interposed
for purposes of delay, but rather is a sound legal defense under
the terms of both the Subcontract and the Payment Act, if it
applied to this Project.
25. Admitted.
WHEREFORE, Adams County Asphalt Company respectfully requests
that this Honorable Court enter judgment in favor of Adams County
Asphalt Company, Inc. and against Telco, Inc. and award Adams
County Asphalt Company interest, attorney's fees and costs of suit.
NEW MATTER
26. ACA incorporates paragraphs 1 through 25 above as though
set forth herein at length.
5
27. Telco has failed to state a cause of action upon which
relief can be granted.
28. Telco's claim is barred by the statute of Limitations.
29. Telco's claim is barred by the statute of Frauds.
30. Telco's claim is barred by the doctrines of waiver and
estoppel.
31- Telco's claim is barred by the parole evidence rule.
32. Under the terms of the Subcontract, payment from the
owner to ACA is a condition precedent to Telco's entitlement to
payment from ACA.
Moreover, even though it is denied that the
Payment Act applies to this Project, Telco would not be entitled to
receive payment under the Payment Act.
33. The Payment Act is not applicable to this matter because
"owner" is defined as a "person who has an interest in the real
property that is improved and who ordered the improvement to be
made."
Further, "person" is defined as a "corporation,
I
I
;
I
r
I
,
i
f
I
i
i
I
i
I
I
I
,
partnership, business trust, other association, estate, trust
foundation or a natural individual." Since the School District is
not a person as defined by this statute, the Payment Act does not
apply to this matter.
34. If the Payment Act is applicable to this case, no money
is due Telco at this time. Specifically, 73 P.S.S507 states "when
a Subcontractor has performed in accordance with the provisions of
the contract, a contractor shall pay the Subcontractor...14 davs
after receict of each croaress or final cavrnent or 14 days after
receipt of the Subcontractor I s invoice, whichever is later." Since
6
ACA has not yet received the progress payment which included
Telco's work, the money is not due Telco under the Payment Act.
35. ACA reserves the right to raise each and every defense
which may be discovered during the course of discovery in these
proceedings.
WHEREFORE, Adams County Asphalt Company respectfully requests
that this Honorable Court enter judgment in favor of Adams County
Asphalt Company, Inc. and against Telco, Inc. and award Adams
County Asphalt Company interest, attorney's fees and costs of suit.
COHEN AND HUNTINGTON, P.C.
BY:
OY S. COHEN, E QUIRE
RENEE KILGARRIFF, ESQUIRE
Attorney for Defendants,
Adams county Asphalt Co.
1515 Market Street
suite 818
Philadelphia, PA 19102
(215) 564-1700
I.
I'
,
I
,
i
i;
i
I
I
,
!
f
,
I
I
I
I
I
......41
, 1995
7
~
VI!lRrFrCATrON
ROBERT KtJJIMA, states that he is president of Adams County
Asphalt Company; that he is authorized to make this verification on
its behalf; that he has reviewed the facts set forth in the
foregoing and that the facts set forth herein are true and correct
to the best of his knowledge, information and belief.
The undersigned understands that the statements herein are
made subject to the penalties of 18 Pa. C.S.A. 54904, relating to
unsworn falsification to authorities.
~ ~u~11=
ROBERT M. MUMMA
::..""
."
=--..t
,....
=
::~ (.
c.o
~~ ~;;' ~.
t.,
OJ
S~
<..Q
<.n
..
:) .:,
"
i
f
,
:;
i
1
t
I
~
I
!
::.,.......
'n
:"
,......
~
,r .
.:' fJ~.:;r
c.o
c.,
l1t
""..
-..
--
..,!-'"
-' .:~
-
c..o
.."
8869,".RNM/PfS/MIY 8, 1995
TELCO, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
Case No. 95-1219
ADAMS COUNTY ASPHALT
COMPANY, INC.,
.
.
Defendant
.
.
CIVIL TERM
CERTIFICATE OF SERVICE
I, Peter F. Schuchman, Jr., Esquire, Attorney for Plaintiff,
Telco, Inc., certify that on May 8, 1995, a copy of the attached
Plaintiff's Reply to New Matter was served upon the following party
by first class mail, postage prepaid:
Roy S. Cohen, Esquire and
Renee Kilgarriff, Esquire
Attorneys for Defendant
1515 Market Street
suite 818
Philadelphia, PA 19102
This certificate
Pa.C.S. section 4904
authorities.
is made subject to the penalties of 18
relating to unsworn falsification to
KOZLOFF, DIENER, PAYNE & FEGLEY
*SE~~SqUit
Attorneys for Plaintiff
2640 Westview Dr., P.O. Box 6286
wyomissing, PA 19610
(610) 670-2552
1.0. #69343
DATED: May 8, 1995
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Case No. 95-1219
CIVIL TERM
TELCO, INC. ,
Plaintiff
vs.
ADAMS COUNTY ASPHALT
COMPANY, INC. ,
Defendant
.
'.
.
'.
. PLAINTIFF'S REPLY TO NEW MATTER
and CERTIFICATE OF SERVICE
Pet:er ~'. cnucuman, ur., ~squ1re
LAW OFFICES
KOZLOFF. DIENER. PAYNE & FEGLEY
PROfE.SIONAI. CORPORATION
2640 WESTVIEW OFtIVE
p, O. Box 6266
WVOMI55ING. p" 19610
Nar 9
3 0:, fl/ '95
,.:,t fin..:'
"
0/~~ J)' i;~ t,
.:t.
...
'!'n""'7Mt'r
."" ',: r
":J.;!~
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
ro 'lllE PR:1l'HOKlTARY OF ClMlERLAND COUNl"{
Please list the following case.
(Check one)
( for JURY trial at the next term of civil court.
( X) for trial witoout a jury.
-----------------------------------------
CAPTION OF CASE
(entire caption ll1Jst be stated in full)
(check one)
( X) Civil Action - Law
Appeal from <Arbitration
TELCO, INC.,
(other)
(Plaintiff)
vs.
ADAMS COUNTY ASPHPALT COMPANY, INC.
The trial list will be called on
and
Trials coomence on
(Defendant)
pretrials will be held on
(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.)
vs.
No. 95-1219 Civil Action
19
Indicate the attorney WOO will try case for the party WOO files this praecipe.
Peter F. Schuchman, Jr., Esquire
Indicate trial counsel for other parties if know,,,
Roy S. Cohen, Esquire and Renee Kilgarriff, Esquire
This case is ready for trial.
Signed. ~ ~ f-=-
Print Name. Peter F. Schuchman, Jr.
Date.
June 26, 1995
Attorney for. Telco, Inc.
PFS/8869.II.P2D/Augult 17. 1995
.
TELCO, INC. , . IN THE COURT OF COMMON PLEAS OF
.
Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
. CIVIL ACTION - LAW
.
vs. :
. Case No. 95-1219
.
ADAMS COUNTY ASPHALT .
.
COMPANY, INC. , .
.
Defendant . CIVIL TERM
.
CERTIFICATE OF SERVICE
I, Peter F. Schuchman, Jr., Esquire, do hereby certify that
a time-stamped copy of Praecipe for Discontinuance was served, by
first class mail, upon the following party(s):
Roy S. Cohen, Esquire and
Renee Kilgarriff, Esquire
Attorneys for Defendant
1515 Market Street
Suite 818
Philadelphia, PA 19102
I make this certification subject to the penalties of 18 Pa,
C.S. section 4904 relating to unsworn falsification to authorities.
KOZLOFF, DIENER, PAYNE & FEGLEY
~~~
Peter F. Schuchman, Jr., Esqui e
Attorney I.D. #69343
2640 Westview Drive
P. O. Box 6286
Wyomissing, PA 19610
(610) 670-2552
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
CASE NO. 95-1219
TELCO, INC.,
Plaintiff
~ua 22 \ 26 rK'9S
f.' ,0. OffICE
of '\1; i",'\ll\OIlO'tt.l:..Y
Cu~iERLiHO COIll\T'l
.PEtHI5'fL"'''IlI~
vs.
ADAMS COUNTY ASPHALT COMPANY,
INC.,
Defendant
I
I
PRAECIPE FOR DISCONTINUANCE
Peter F. Schuchman, Jr., Esq.
LAW OFFICES
KOZLOFF. DIENER. PAYNE Be FEGLEY
PAO'EB.'OHAL CO"PO""T10N
2640 WESfYIEW DRIVE
P O. Bo_ 6286
WVOMISSING, p", 19610