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" I d , .. , CCI CONSTRUCTION COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant 96-110 CIVIL TERM vs. THE RAY GROUP, INC., Additional Defendant JURY TRIAL DEMANDED ANSWER OF CUMBERLAND VALLEY SCHOOL DISTRICT AND NOW comes Answering Defendant, CUMBERLAND VALLEY SCHOOL DISTRICT, (hereinafter called "District") by its Attorneys, Snelbaker & Brenneman, P.c., and responds to Plaintiff's Complaint (as amended) as follows: 1. Admitted. 2. It is admitted that CCI is a general contracting company engaging in private construction projects. After reasonable investigation, District is without knowledge or information SUfficient to form a belief as to the allegation that CCI performs public construction projects in Pennsylvania and other states; therefore, said averment is deemed to be denied pursuant to Pa. R.C.P. 1029(c) and proof thereof is demanded at the trial of the case. LAw O"ICU SNELPAKER a BRENNEMAN J. District admits its identity but denies that it is responsible to Plaintiff as a defendant or otherwise. 4. Admitted. 5. It is admitted that The Ray Group, Inc. was engaged by . , the School District to be the architect for the Project pursuant to the terms and provisions of a contract between the School District and The Ray Group. As such, it is denied that The Ray Group acted as and/or was an agent of the School District for the project and it is averred, on the contrary, that the relationship between the School District and The Ray Group is set forth and specified in the agreement between said parties and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments in Paragraph' 5 are conclusions of law to which no responsive pleading is required and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(d) and strict proof thereof is demanded. 6. All of the averments in the first sentence of paragraph 6 are admitted. It is denied that the scope of work is described in Part 1.OJ of Section 01010 of Project Specifications. On the contrary, said Part and Section refer to "Description of Contracts", not the scope of work for each contract; the scope of work is not described. It is averred, on the contrary, that the scope of work for each of the five (5) contracts was and is set forth and stated in the various contract LAw O'flCEII SNELDAKER It BRENNEMAN documents including, but not limited to, the contracts with each prime contractor, the specifications and drawings for the project, the General and SUpplemental Conditions of the construction contracts, addenda, etc. and any and all documents, drawings, records, etc. incorporated by reference in said -2- . , contract documents. The remaining averments in Paragraph 6 are conclusions of law to which no responsive pleading is required and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(d) and strict proof thereof is demanded. 7. After reasonable investigation, the District is without knowledge or information SUfficient to form a belief as to the truth of those averments contained in this paragraph with regard to the basis for the bid of CCI and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(c) and strict proof thereof is demanded at the trial of the case. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. IJ. Denied in part and admitted in part. After reasonable LAW a"ICElI SNELDAKER a aRENNEMAN investigation, the District is without knowledge or information SUfficient to form a belief as to the truth of those averments contained in this paragraph with regard to whether any such sequence was intended by or permitted CCI to close-in Building Section A before winter and, therefore, said averments are deemed to be denied pursuant to Pa. R.c. P. 1029(c) and strict proof thereof is demanded at the trial of the case. It is admitted -J- . that CCI submitted a planned sequence of construction as stated but it is averred that CCI subsequently submitted a revised planned sequence of construction which was acceptable to CCI and which would have permitted CCI to proceed in the same or similar manner with regard to any close-in of a building section. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C.P. 1029(d). 14. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 above, and LAw O"ICU SNELBAKER a eRENNEMAN said response and averments are incorporated by reference herein. The substance of any notification with regard to these items speaks for itself and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C.P. 1029(d). 15. Denied as stated. The substance of any notification with regard to the matters set forth in Paragraph 15 speaks for itself and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. 16. Denied as stated. The substance of any notification speaks for itself and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. Those averments contained in Paragraph 16 with regard to the scope of work of the Sitework Contractor are conclusions of law to which -4- . , no responsive pleading is required and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(d) and strict proof thereof is demanded. Furthermore, District incorporates by reference herein the averments contained in its answer to Paragraph 6 above, and realleges said averments to this Paragraph 16 as if the same were completely set forth here and at length. 17. It is averred, on the contrary, that CCI had, at all times material hereto, access to the site and had access to all or part of the building pad as of July 14, 199J so as to permit and/or facilitate the commencement of work by and/or the operations of CCI at the site and at that time and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. It is specifically denied that CCI's operations were in any way delayed and, in any event, all such averments as well as the remaining averments in Paragraph 17 are conclusions of law to which no responsive pleading is required and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(d) and strict proof thereof is demanded. 18. District incorporates by reference herein those averments contained in its answer to Paragraph 17 above and real leges said averments to this paragraph as if the same were LAW OP'"CU SNELBAKER a BRENNEMAN completely set forth herein at length. Further, after reasonable investigation, the District is without knowledge or information sufficient to form a belief as to the truth of the allegations with regard to the schedule and/or any scheduling conflicts of subcontractors of CCI and, therefore, said averments are deemed -5- LAW a'''CEII SNELDAI<ER a BRENNEMAN . , to be denied pursuant to pa R.C.P. 1029(c) and strict proof thereof is demanded at the trial of the case. The remaining averments of Paragraph 18 are conclusions of law to which no responsive pleading is required and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(d) and strict proof thereof is demanded. In any event, it is specifically denied that District and/or any of its representatives caused the disruption of CCI's schectule with its subcontractors and it is averred, on the contrary, that the obligation to coordinate the work and to maintain job progress was the responsibility of CCI under the terms and provisions of the contract documents and that any delay and/or disruption was caused, in whole or in part, by the erroneous and unrealistic plan or schedule of CCI which was made without CCI's coordination and cooperation with or consideration of the other prime contractors on the project. 19. District incorporates by reference herein the averments contained in its answers to Paragraphs 17 and 18 above and realleges said averments in response to Paragraph 19 as if the same were completely set forth herein at length. Furthermore, it is averred that CCI is barred from any monetary compensation by reason of the terms and provisions of the contract documents including, but not limited to, the Supplemental Condition section 8.J.J of the General conditions of the contract for Construction. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). -6- LAW O"ICtII SNELBAI<ER a BRENNEMAN . . 20. It is averred, on the contrary, that as part of discussions and considerations between and among the prime contractors on the project including CCI, it was agreed by such prime contractors, including CCI, to modify and/or change the sequence of construction so as to proceed with and perform such construction in an orderly and workmanlike manner and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. 21. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in Paragraph 21 with regard to the method and manner of work decided upon by CCI and/or with regard to any alleged disruption of CCI's operations and/or productivity and/or the alleged incurrence by CCI of additional unanticipated costs and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(c) and strict proof thereof is demanded at the trial of the case. Furthermore, District incorporates by reference herein the averments contained in its answers to Paragraphs 16 through 18 above and real leges said averments to this paragraph as if the same were completely set forth herein at length. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 22. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the -7- . . , truth of the alleged factual averments contained in Paragraph 22 with regard to alleged non-specific building line dimensional problems and/or interior partition dimension problems and/or those allegations with regard to the resolution of such alleged dimensional problems, all such averments being too general and non-specific to formulate a specific response, and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(c) and strict proof thereof is demanded at the trial of the case. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 2J. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in this Paragraph 2J with regard to those matters which allegedly adversely impacted on CCI's ability to perform its work, and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(c) and strict proof thereof is demanded at the trial of the case. Further, District incorporates by reference herein the averments contained in its answer to Paragraph 22 above and realleges said averments in response to Paragraph 2J as if the same were completed set forth herein and at length. The LAW O"ICES SNELDAtcER a BRENNEMAN remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). -8- . 24. It is denied that The Ray Group was an agent of District as set forth ~nd stated in the answer to Paragraph 5 hereinabove, LAw o,."cu SNELBAtcER a BRENNEMAN and said response and averments are incorporated herein by reference thereto. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in Paragraph 24 with regard to the nature and extent of any alleged delay sustained by or on behalf of CCI and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(c) and strict proof thereof is demanded at the trial of the case. It is further averred, on the contrary, that proper, appropriate and timely responses were provided on behalf of District to CCI and/or to CCI's representative and that CCI and/or its representatives could have and should have proceeded with its operations and/or activities in connection with the project while awaiting receipt of any and all such responses and the failure of CCI and/or its representatives to proceed in such a manner was the cause of or a contributing factor to any such alleged delay. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 25. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 hereinabove, and said response and averments are incorporated herein by reference thereto. It is averred, on the contrary, that CCI was provided with appropriate and timely responses to any and all -9- LAW a,.,.lcr:. SNELDAI<ER a BRENNEMAN . , questions regarding the metal deck procurement and steel joist procurement and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. Also, District incorporates by reference herein the averments contained in its answer to Paragraph 24 above and real leges said averments to this paragraph as if the same were completely set forth here and at length. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 26. The alleged factual averments contained in Paragraph 26 are denied and it is averred, on the contrary, that at all times material, CCI had access to the site and that none of the items alleged made the performance of the work of CCI any more difficult and/or less efficient or more costly and any and all avermenta to the contrary are specifically denied and strict proof thereof is demanded. District also incorporates by reference herein those averments contained in its answers to Paragraphs 16 through 18 above and realleges said averments to this Paragraph 26 as if the same were completely set forth herein at length. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 27. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 hereinabove, -10- LAW OPPle.:. SNELDAtcEA a BRENNEMAN . , and said response and averments are incorporated herein by reference thereto. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in Paragraph 27 as to the anticipations of CCI and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(c) and strict proof thereof is demanded at the trial of the case. Furthermore, District incorporates by reference herein the averments contained in the answers to Paragraphs 16 through 18 above and realleges said averments to this paragraph as if the same were completely set forth herein at length. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 28. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 hereinabove, and said response and averments are incorporated herein by reference thereto. The remaining alleged factual averments in Paragraph 28 are denied. It is averred, on the contrary, that proper, appropriate and timely responses to any and all requests of CCI were made and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 29. The alleged factual averments contained in Paragraph 29 -11- LAW O"ICE6 SNELDAtcER lit BRENNEMAN . . ' are denied, and it is averred, on the contrary, that the weather conditions for the time period in question neither commenced as of the time noted nor would CCI's description as being extraordinary and/or abnormal be appropriate, and all such averments are denied and strict proof thereof is demanded. Furthermore, at no time did District fail or refuse to provide access to the site and it is averred, on the contrary, that CCI had, at all times material, access to the site by way of a paved road which continued to within a short distance of the site and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). JO. Denied. It is averred, on the contrary, that it was not and is not the responsibility of District to address winter conditions since this was the responsibility of CCI under the terms and provisions of the contract documents and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). Jl. The alleged factual averments contained in Paragraph J1 are specifically denied. It is averred on the contrary that the contents of the Job Conference Meeting Minutes respond to CCI's -12- allegations. Furthermore, the nature and extent of the progress of the project at the time in question was the result of the conduct of CCI and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). J2. The alleged factual averments contained in Paragraph J2 are specifically denied. Each and everyone of the matters alleged in said Paragraph J2 came within and were the responsibility of CCI as set forth and provided in the contract documents for the project and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. LAW O'PlCF.1S SNELBAKER /lr BRENNEMAN R.C. P. 1029(d). JJ. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in Paragraph JJ with regard to alleged attempts, deployment and/or extra work on the part of CCI and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(c) and strict proof thereof is demanded at the trial of the case. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be -lJ- . , denied pursuant to Pa. R.C. P. 1029(d). In any event, it is averred by way of further response that those items referenced in Paragraph JJ came within and were the responsibility of CCI pursuant to the terms and provisions of the various contract documents. J4. The content of Paragraph J4 consists of a series of conclusions of law to which no response is required; therefore, the same is deemed to be denied pursuant to Pa. R.C.P. 1029(d). If said content is determined to be an averment of factual material, all is denied. On the contrary, for all the reasons set forth in Paragraphs 29 through J2, sUDra, the responsibility for the matters complained of were entirely accepted by CCI by reason of the Contract. J5. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 hereinabove, and said response and averments are incorporated herein by reference thereto. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in Paragraph J5 with regard to allegations of disruption and/or the sustaining of additional costs and loss of time and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(c) and strict proof thereof is demanded at the trial of the LAW o'fleu SNE:LBAKER a BRENNEMAN case. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. -14- . , P. 1029(d). Furthermore, it is averred that the responsibility for coordination of the prime contractors on the project was that of CCI and/or the other prime contractors as set forth and provided in the contract documents including, but not limited to, those referenced in answer to Paragraph 6 above. J6. It is admitted that the quotation from the Contract is accurate, but is a conclusion of law to which no response is required; therefore, the application of such quotation to the case at hand is deemed to be denied pursuant to Pa. R.C.P. 1029(d). LAW o,,,cu SNELBAI<EA a BRENNEMAN J7. It is admitted that CCI performed the matters averred in part but the nature and extent of same were inadequate and insufficient and, therefore, not in compliance with the terms and provisions of the contract documents with regard to the responsibility of CCI to provide coordination. The remaining av.rm.,..... in this paragraph are conclusions of law to which no r.spondivo ploading is required and, therefore, the same are d..med to U~ doniod pursuant to Pa. R.C. P. 1029(d). J8. It is averred that the project specifications referenced in Paragraph 38 speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. Also, CCI's responsibility for coordination is set forth and stated in the contract documents and is referenced in such documents and not limited to the section noted in the Complaint, and it is specifically denied that CCI performed the coordination required by the terms and provisions of the contract -15- "'i~..~.. _"." 1 documents and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). J9. It is averred that the terms and provisions of the project specifications and/or other contract documents speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The averments contained in Paragraph J9 are, in any event, conclusions of law on the part of CCI to which no responsive pleading is required and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(d) and strict proof thereof is demanded. In addition, reference should be made to other contract documents and records including the contracts between and among the parties which clearly establish that any such coordination was and is the responsibility of CCI and not the responsibility of District and/or The Ray Group. 40. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 hereinabove, and said response and averments are incorporated herein by reference thereto. It is admitted that CCI made various LAW a"leu SNELBAtcER BI BRENNEMAN allegations with regard to the other prime contractors on the project and all such allegations were investigated, discussed, and considered including similar allegations made against CCI. Both District and The Ray Group responded to and took the -16- LAw a'flCU SNELBAKER a S"INNEMAN appropriate and timely action as required by the contract documents for the project with regard to each and every matter referenced and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). a. It is denied that CCI had "sidewalk work" in the courtyard. On the contrary, CCI was required to install only two small stoops at exterior doors. It is denied that any "problems" were caused by access through two J'O" doors. b. It is denied that the Plumbing contractor was required to perform "slab work" and that the Electrical contractor was required to perform "duct work". c. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the averment that the alleged delay of light fixtures had a "serious impact on CCI's schedule"; therefore, the same is deemed to be denied pursuant to Pa. R.C.P. 1029(c) and proof thereof is demanded at the trial of the case. d. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the averments in paragraph 40(d); therefore, the same are denied pursuant to Pa. -17- LAw a,,.ICElI SNELBAtcER a BRENNEMAN R.C.P. 1029(c) and proof thereof is demanded at the trial of the case. It is denied that District failed and/or refused to coordinate as alleged. On the contrary, it is averred that CCI was the author of its grievances for failure and/or refusal to coordinate and cooperate with other contractors, District and architect. 41. It is denied that District set any schedules which were unrealistic. The only schedule issued by District occurred on or about October 4, 1994, after CCI was granted a 60-day construction time extension and after CCI had alienated itself with other contractors by its lack of cooperation and coordination. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in this paragraph with regard to alleged acceleration of work, disruption of the progress of work, and/or incurrence of additional costs and, therefore, said averments are deemed to be denied pursuant to Pa. R.C. P. 1029(c) and strict proof thereof is demanded at the trial of the case. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 42. It is denied that CCI was required to perform the alleged extra slab work because of the fault of anyone other than CCI. On the contrary, the alleged "extra" work was required as a correction because of CCI's own disturbance of the earth under -18- LAW O"'''ICU SNELBAI<ER llO BRENNEMAN the concrete slab. The remaining averments in this paragraph are conclusions of law to which no r~sponsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 4J. The existence of "Exhibit C" is admitted; however, it is de~ied that District had any contractual or other obligation to represent acceptability of the site to CCI. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 44. Admitted generally; however, it is denied that the area in question was not properly compacted prior to CCI's disturbance thereof. 45. Admitted. 46. It is admitted that CCI corrected the slab caused by settlement. It is denied that CCI was not at fault. On the contrary, it is averred that the cause of the settlement was CCI's disturbance of the subject earth without proper compaction. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 47. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 hereinabove, and said response and averments are incorporated herein by reference thereto. It is denied that CCI was backcharged improperly for the alleged materials. On the contrary and -19- LAw a""CIE8 SNELBAKER a BRENNEMAN pursuant to the response in Paragraphs 48 and 49, infra, the materials were to be provided by CCI pursuant to the Contract. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 48. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 hereinabove, and said response and averments are incorporated herein by reference thereto. The factual averments in Paragraph 48 are admitted. By way of further response it is averred that CCI agreed to provide 2517-C sinks which include faucets and bubblers. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 49. The factual averments in Paragraph 49 are denied. On the contrary, CCI specifically agreed to provide sinks of the 2517-C type which are defined to include the faucets and bubblers accessories. The reference to "C" identifies the sinks to include the accessories. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 50. The factual averments in Paragraph 50 are denied. On the contrary, the affirmative averments in Paragraphs 48 and 49, sUDra, are incorporated herein by reference thereto as the true -20- LAw O,.,ICU SNELBAI<EA a BRENNEMAN facts. Therefore, it is further denied that District wrongfully refused to pay again for sinks expressly agreed to be furnished by CCI under the Contract. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 51. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 hereinabove, and said response and averments are incorporated herein by reference thereto. It is admitted that the deductive change order was issued by District. The remainder of the paragraph contains only conclusions of law to which no response is required; therefore, the same is deemed to be denied pursuant to Pa. R.C.P. 1029(d). If such content is determined to be a factual averment, it is denied. On the contrary, the affirmative averments in Paragraphs 48, 49 and 50, sUDra, are incorporated herein by reference thereto. 52. The content of Paragraph 52 is a conclusion of law to which no response is required; therefore, it is deemed to be denied pursuant to Pa. R.C.P. 1029(d). 5J. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 hereinabove, and said response and averments are incorporated herein by reference thereto. It is denied that CCI was directed to form the concrete pads. It is admitted that District directed CCI to reinforce and pour concrete in the forms pursuant to CCI's -21- LAW O,."Ct:1I SNELIIAKER a BRENNEMAN contract to provide reinforcing mesh, set anchor bolts and pour concrete at the ticket booths in forms installed by anothsr contractor. It is denied that such work was "extra". On the contrary, the subject work was specifically within CCI's contract. The remaining averments in this paragraph are conclusions of law to which no responsivo ploading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 54. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 hereinabove, and said response and averments are incorporated herein by reference thereto. The remaining averments in Paragraph 54 are denied. On the contrary, the subject work was included in CCI's contract by reference to the construction plans at "SP2", "SP6" and "SP2J" as the responsibility of CCI, and for which no additional compensation is allowable. The remaining aVerments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 55. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 hereinabove, and said response and averments are incorporated herein by reference thereto. After r~asonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in Paragraph 55 with regard to CCI's alleged ability to perform its -22- LAW a"lcr:6 SNELBAKER a eRENNEMAN , , work and/or any alleged adverse effect on the part of CCI and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(C) and strict proof thereof is demanded at the trial of the case. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 56. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 hereinabove, and said response and averments are incorporated herein by reference thereto. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in Paragraph 56 except to the extent of those admitted and/or denied in the answers of District to Paragraphs 1 through 55 above, and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(c) and strict proof thereof is demanded at the trial of the case. Furthermore, it is specifically denied that this was a critical path project and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. Furthermore, after reasonable investigation, the District is without knowledge or information sufficient to form a belief as to the truth of those averments contained in Paragraph 56 as to the nature and extent of alleged damages and/or delays sustained by CCI and, therefore, all such averments are deemed to be denied pursuant to Pa. R.C.P. 1029(C) and strict proof thereof -2J- LAw O"'''ICr:. SNELBAICER a BRENNIMAN is demanded at the trial of the case. The romaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, thereforo, tho Bame are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 57. It is denied that The Ray Group waD an agent of District as set forth and stated in tho answor to Paragraph 5 hereinabove, and said response and averments aro incorporated horein by reference thereto. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in Paragraph 57 with regard to what was anticipated by CCI and/or with regard to the nature and extent of any alleged costs and/or time and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1027(c), and strict proof thereof is demanded at the trial of the case. The remaining averments in this paragraph are conclUDions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 58. It is denied that The Ray Group was an agent of District as set forth and stated in the answer to Paragraph 5 hereinabove, and said response and averments are incorporated herein by reference thereto. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the allegod factual averments contained in Paragraph 58 with regard to tho nature, extent and amount of alleged damages sustainod by CCI and, therefore, said averments -24- , . are deemed to be denied pursuant to Pa. R.C.P. 1029(c) and strict proof the~eof is demanded at the trial of the case. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). 59. After reasonable investigation, District is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in Paragraph 59 with regard to what was anticipated by CCI and/or the alleged amount of any extension of contract time and, therefore, said averments are deemed to be denied pursuant to Pa. R.C.P. 1029(c) and strict proof thereof is demanded at the trial of the case. The remaining averments in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, the same are deemed to be denied pursuant to Pa. R.C. P. 1029(d). NEW HATTER By way of further answer and defense, District avers the following: 60. The term "Contract Documents" as used hereinbelow includes all General Construction contractual documents between LAw O"ICU SNELBAKER a BRENNEMAN District and CCI including, but not limited to, the Agreement, Plans, Drawings, Specifications, General Conditions of the Contract for Construction, Supplementary Conditions, being too voluminous to be attached hereto but are in the possession of CCI. Said contract Documents are incorporated herein by reference thereto. -25- " ' . 61. The Contract Documents between the parties herein contain certain "General Conditions of the Contract for Construction" which include the following specific provision in Supplementary Conditions Section 8.J.J of Article 8, page 00800-5 : "No payment or compensation or claim for damages shall be made to the Contractor as compensation for damages for any delays or hindrances from any cause whatsoever in the progress of the Work, notwithstanding whether such delays be avoidable or unavoidable. The Contractor's sole remedy for delays shall be an EXTENSION OF TIME ONLY, pursuant to and only in accordance with this Paragraph 8.J, such extension to be a period equivalent to the time lost, by reason of any and all of the aforesaid causes, as determined by the Architect. In consideration for this grant of a time extension, the Owner and the Architect shall not be held responsible for any loss or damage or increased costs sustained by the Contractor through any delays caused by the Owner or Architect or any other contractor or on account of the aforesaid causes or any other cause of delay. In the event the Contractor shall choose to litigate this clause or issue and loses said litigation, the Contractor shall reimburse the Owner and the Architect for their reasonable attorney'S and expert witness fees and all other costs and expenses incurred by them in the litigation." 62. CCI is the "Contractor" and District is the "Owner" as those ter~s are used in Section 8.J.J quoted in Paragraph 61 hereinabove. LAW o,."etll SNELBAtcER a BRENNEMAN 6J. CCI is barred from any monetary compensation by reason of Contract Documents between the parties hereto including, but not limited to, Section 8.J.J quoted in Paragraph 61 hereinabove. 64. The Complaint of CCI against District fails to state a cause of action against District upon which relief may be granted. 65. CCI was engaged by District to perform work and/or -26- .. . services in connection with the construction project in question and such work and/or services were set forth and stated in the Contract Documents between the parties and/or any and all Contract Documents and all such work and/or services were to be performed in conformance with the terms and provisions of said Contract Documents and in a careful and workmanlike manner and consistent with recognized and accepted standards, practices and/or procedures in the construction industry. 66. The work performed and/or to be performed by or on behalf of CCI on the construction project in question was not performed in a careful and workmanlike manner nor was all such work performed in accordance with the terms and provisions of the Contract Documents nor in accordance with recognized and accepted standards, practices and/or procedures in the construction industry and, therefore, District is not liable to CCI. 67. The alleged claims and/or cause(s) of action alleged by CCI were caused, in whole or in part, by the breach(es) of the Contract Documents between the parties by CCI and such breach(es) preclude CCI from any recovery against District, said claims and any and all liability on the part of District being specifically denied in the first instance and, therefore, District is not liable to CCI. LAw O'''CtI SNEL8AtcER 1II BRENNEMAN 68. Any alleged liability of District with regard to the Complaint of CCI, said liability being specifically denied in the first instance, is limited by the terms and provisions of the Contract Documents and, therefore, District is not liable to CCI. -27- LAW O"ICU SNELBAKEn a BRENNEMAN , .. . .. . . 69. The alleged claims and/or cause(s) of action made by CCI in its complaint, said alleged claims and/or cause(s) of action being specifically denied in the first instance, are barred by the doctrines of waiver, estoppel and/or laches and, therefore, District is not liable to CCI. 70. CCI has failed to mitigate its alleged claims and/or damages, said alleged claims and/or damages and any liability on the part of District being specifically denied in the first instance, and CCI engaged in careless and negligent conduct which aggravated any such alleged claims and/or damages and, therefore, District is not liable to CCI. 71. The responsibility for coordination of the work of the prime contractors on the Construction Project was vested in CCI as set forth and provided in the Contract Documents. 72. CCI failed and neglected to perform the coordination of work among the prime contractors as required by the Contract Documents. WHEREFORE, District respectfully requests your Honorable Court to dismiss Plaintiff CCI's Complaint and enter judgment in favor of Defendant District and against CCI. COUNTERCLAIM District avers the following claims and cause of action against CCI: 7J. The averments contained in Paragraphs 60 through 6J hereinabove are realleged herein and incorporated herein by reference thereto as though set forth in full in separate -28- LAW a"lcu SNELDAKER a BRENNEMAN I I . . " . paragraphs. 74. By contesting, disputing and litigating the provisions of section 8.J.J quoted above, CCI has breached and continues to breach the terms thereof. 75. Because CCI contests, disputes and litigates the provisions of said section 8.J.J, District has incurred and will incur in the future substantial attorney fees and costs involved in the defense of this matter. 76. Because of CCI's contest, dispute and litigation as aforesaid, District may require the engagement of expert witnesses and other defensive costs and expenses resulting in substantial expense to the District. 77. The terms of said Section 8.J.J require CCI to reimburse District for District's reasonable attorney's fees, expert witness fees and all other costs and expenses incurred in the litigation. WHEREFORE, District requests your Honorable Court to enter judgment in favor of Defendant District and against plaintiff CCI in the amount of its reasonable attorney's fees, expert witness fees and all other costs and expenses incurred and to be incurred in this litigation. N, P.C. By d c. Snelbaker Attorney Registration Number 06J55 44 West Main Street Mechanicsburg, PA 17055-0J18 (717) 697-8528 Attorneys for Defendant Cumberland Valley School District -29- ('-) " " f:l In ~;:i !::: ~ ,n ... ... ... rs ~ ... c " i:l;J ..... 111 111 ~~ ... 'tl 'tl ,-l ;!; " " " ~8); Lll5 z . ..... llJ llJ ~ ~ ~ "'Ill ~ 111 ,-l ... ... :;.;<;;:l ~3 ~ffi r-i 8 llJ llJ Siid fa 3 ~ '" I'> I'> ~ El ~ ~~ ~ ~ ~ c ~'" . .-< ~~el ;j 0 . III . , 111 lXl8 ~ 5 8gj~ U Ul Ul U C H~ I1l ~ ~ :> l::i :> ~ 0 ~~ Z m Z ..... ... E9UP I'> 1&0 I-< 0 ~ ... (..1-10 ~ 9 it ~ I,j 0 00',-l ..... . ... B~u ~ ..: . t; !:i 'tl Lll a 0 p ~u z..... 'tl 1Il'tl ~~ t:; ~ '"' g; S~ ~ 0 ..: I&o.....c ~ <~ '( rJ 8~t;U ~g ti 01'>111 III ~8 ~ 5< ~ ":0 Z >< Lll ~~ ~ 7 0 ;,a 7- :t u U E91-< ~~ V1 '" ..... !Ol~ ~ ;;; Z .....'" u ..... UO\ U Ul'> - . . . . .. ~ It .. '. : , Ia , -,....-' .' . ~-...,...,.----- --- - ....'2J ' - .......~ ... I ;31 . ""-.., . . . ,.' . . - ~ , . " .' It. .. . CCI CONSTRUCTION COMPANY, INC. IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. CUMBERLAND VALLEY SCHOOL DISTRICT . . . . . . NO. C;~J-II () ,. . 1996' T'~\I" Defendant COMPLAINT 1. Plaintiff is CCI Construction Company, Inc., a corporation, which maintains a principal place of business at 4720 Old Gettysburg Road, Mechanicsburg, PA 17055 (hereinafter "CCI"). 2. CCI is a general construction contractinq company which engages in the performance of pUblic and private construction projects in Pennsylvania and other states. J. Defendant is Cumberland Valley School District, a school district governed by the laws of the Commonwealth of Pennsylvania, which maintains a principal place of business at 6746 Carlisle Pike, Mechanicsburg, PA 17055 (hereinafter "District"). 4. In 199J, the District issued for pUblic bidding and award a construction project then known as "New Middle School, Cumberland Valley School District" (hereinafter "Project"). 5. The architectural consultant for the Project, engaged by the District, was The Ray Group, Inc., which maintains a f , , ~ principal place of business at 4 South Fourth street, Lebanon, PA 17042 (hereinafter "The Ray Group"). At all times l'elevant hereto, The Ray Group acted as the agent of the District for the Project. PROJECT BIDDING TO MULTIPLE PRIME CONTRACTORS 6. The Ray Group prepared the Projent'~ plans and specifications for the District, and, at the instruction of the District, issued requests for bid on the Project for competitive pUblic bidding for five (5) separate prime contracts, to-wit: General Construction; Hearing, Ventilation, Air-conditioning; Plumbing; Electrical; sitework. The scope of work for each of the five contracts is more clearly described in the Project Specifications, section 01010, Part 1.0J Description of Contract. A copy of Section 01010, Part 1.0J is attached hereto, marked Exhibit "A", and incorporated herein by reference. 7. CCI submitted its competitive bid for the General Construction contract based upon the plans and specifications issued by the District. Following bidding, CCI was determined by the District to be the lowest responsible bidder for the General Construction contract. 8. On May 27, 199J, CCI was notified by The Ray Group, at the direction of the District, that the District had passed a resolution, stating its intent to award the prime contract for General Construction to CCI. 2 " ,.. . 9. On June 16, 199J, CCI and the District entered into a prime contract for the general construction of the New Middle School Project. A true and correct copy of the Agreement portion of the general construction contract documents is attached hereto, marked Exhibit "B" and incorporated herein by reference. The remaining contract documents are too voluminous to be attached hereto, but are in the POssession of the District. 10. The District awarded the four (4) other prime contracts on the Project to the following contractors: HVAC Contract: Frey Lutz Corp. of Lancaster, PA Plumbing Contract: Herre Bros. Inc. of Enola, PA Electrical Contract: Warren Electrical Construction Corp., of Myersville, MD Sitework Contract: Adams County Asphalt, Harrisburg, PA 11, Ray Group issued to CCI a Notice to Proceed on June 22, 199J. eeI'8 CON8TRUCTION 8EOUENCE FOR BUILDING CON8TRUCTIOH 12. CCI's original schedule submitted to the District for bUilding construction (which did not include sitework outside of the building footprint) depicted a construction start date of July 12, 199J (commencement of foundations) with a contract completion date of August 15, 1994. 1J. CCI's original planned sequence of construction was to construct Building Section A (classroom wing) first with a transition to Building Section B (administration and aUditorium), and thereafter to BUilding Section C (gymnasium and mechanical ,: ;1 I' i \ / di t !! " J I I. ; I - , . . . . rooms). This sequence permitted CCI to close-in Building Section A before the onset of winter weather. 14. On June 23, 199J, CCI notified the District's agent, The Ray Group, of CCI's intent to mobilize foundation operations during the week of July 12, 199J, with its intent to commence foundation work on the east side of the two-story classroom wing, facing the main entry and parking lot. 15. CCI also gave notice of its intent to mobilize the job site office trailer during the week of July 12, 199J to prepare for job site administration, provided that the front parking lot stone base was completed by the sitework contractor. 16. CCI gave notice that CCI's actual building construction on the site was contingent upon the District providing to CCI a complete building pad and access to the pad, both of which work items were within the prime sitework Contractor's scope of work. 17. The District did not give access to the site to CCI in accordance with CCI's plan and schedule. CCI received access to the building pad and confirmation from the District that the pad was acceptable for construction on July 2J, 199J, facilitating a July 26, 199J start. Accordingly, CCI's operations were delayed by the District, and/or agents or other prime contractors of the District. 18. The District's failure to provide access as planned disrupted CCI's schedule of subcontractor operations and required CCI to resolve scheduling conflicts among eCI's subcontractors, and constituted interference with CCI's performance of its 4 ,~ . . " . ~ contract work. This was the consequence of the District not adhering to its obligation to maintain the job progress of the prime sitework contractor. The timely performance of the Sitework contractor's work, and the completion of the building pads according to specification, were both critical to the start dates of the downstream work activities within the scope of work of the General Construction contract. 19. CCI is entitled to additional Contract time and monetary compensation for the disruption caused by the District's failure to maintain the required Project progress of other prime contractors performing critical work. THB DISTRICT'S IMPRUDENT RESEOUENCINO or CONSTRUCTIOH AHD THB DBrECTIVE DES ION IN THE DISTRICT'S PLANS 20. On June 24, 199J, CCI was requested by the District's Mechanical/Electrical Engineer to resequence CCI's logic for construction of the buildings. CCI was requested to construct Building Section C first in order to accommodate the mechanical, electrical and plumbing prime contractor. 21. FUlfilling its contractual duty to cooperate, CCI re- sequenced its work to commence work on Building Section C. The District's prime Sitework Contractor was not completed with the building pad for Building section C, and CCI was forced to begin foundation excavation where it could be constructed in order to avoid interference with the prime sitework Contractor. However, the prime sitework Contractor's untimely performance of building 5 ... ,,' .~. , . 4 pad work disrupted CCI's sequence of operations and productivity which caused CCI to incur additional unanticipated costs. 22. During the week of June 28, 199J, CCI discovered latent design defects in the District's plans. The design for the building was erroneous in that the specified building lines would not close dimensionally and numerous interior partition dimensions were also in error. These interior dimensional problems were significant because the majority of partitions were masonry walls extending to footings. The dimensional errors were continuous and significant in number. The District, and/or its agents or contractors, failed to resolve these dimensional errors efficiently and promptly. 2J. The building line dimensional problems (both exterior and interior) had the following significant adverse impact on CCI's ability to perform its contract work as well as overall Project progress: (a) Development of structural steel shop drawings could not be completed by CCI's subcontractor. This prevented CCI's submission of shop drawings to The Ray Group for approval and prevented CCI from ordering the fabrication of steel as planned; (b) The building dimensions needed to be re-surveyed, recalculated, and re-staked by CCI on several occasions; (c) Underslab plumbing work by the prime Plumbing Contractor was disrupted and delayed; 6 '- . ~ ~ Cd) CCI was forced to perform footing/foundation work out of planned sequence, and was disrupted and delayed; and ee) CCI's critical path activities were adversely impacted. 24. The District, and/or its agent The Ray Group, failed to provide responses to CCI's questions about dimensional defects in the plans until August 5, 199J, which response was untimely. This six (6) week delay rippled through the Project and delayed the completion of the fabrication of steel until the end of October 199J. This, in turn, yielded a delay of nine (9) weeks from the original schedule for delivery of structural steel and caused an unanticipated and unreasonable increase in Project costs and time for completion. 25. CCI incurred a similar delay because of the District's, and/or its agent The Ray Group's, failure to provide timely responses to questions regarding metal deck procurement and steel joist procurement. As a result, CCI suffered unanticipated and unreasonable delay and increase in Project costs and time for completion caused by the District's untimely Project administration. 26. After CCI was given access to the site on July 26, 199J, areas of the building pad were not up to the lines and grades called for in the plans, including but not limited to the Dock Area, Mechanical Room Area, depressed slab area and the AUditorium. CCI was, in fact, forced to perform work out of 7 . . '.' . , . sequence, which made contract work more difficult, less efficient and more costly. 27. The District, and/or its agent The Ray Group, was ineffective in maintaining its prime site Contractor on an established schedule and agreed upon sequence. The timely performance of the prime Site Contractor's scope of work was critical to the efficient performance of CCI's general construction contract work. Therefore, the District's failures caused CCI's performance to be out of planned sequence, less efficient, and more costly. CCI did not anticipate in its bid or in its schedule of its work that the District would administer the prime site Contractor's contract so ineffectively. As a consequence, CCI has suffered adverse cost and time impact of the District's poor administration. 28. The District, and/or its agent The Ray Group, never provided meaningful or timely responses to the design problems recited in the foregoing paragraphs, and notwithstanding numerous requests for schedule adjustments and effective Project administration, the Project and CCI were forced by the District to fall behind schedule. IZTRBMI WINTZR CONDITIONS IN 1993-94 29. Extraordinary cold and abnormally snowy and icy weather conditions occurred as early as November 199J and continued throughout the winter of 199J-94. The District had the duty to provide access to the site in order for CCI to perform its B ,~ , ~' . building construction under the General Construction contract. The District failed and refused to provide access to the New Middle School Project site which sat approximately one-quarter mile away from the nearest paved private access road and on top of a steep hill, during the abnormally snowy, icy and cold conditions described above. The District had resources to make the building site accessible to prime contractors, but the District failed and/or refused to do this. JO. The District's failure to address the winter conditions deprived CCI of access to the building site for construction work, and made building construction progress effectively impossible. Jl. At the time of the onset of winter conditions, the building itself was not enclosed as defined by the specifications, that is, the building did not have a roofing system in place, nor were exterior walls substantially complete, nor was the mbtal deck complete. At Job Conference Meeting No. 16, January 20, 1995, The Ray Group agreed that Project success was not benefitted by enclosing a partially completed building. J2. Notwithstanding the above, CCI suffered from the fOllowing unreasonable demands made by the District: (a) to remove snow and ice from the building access road. Snow and ice removal from the building access road was not a part of CCI's contract obligation under the scope of work for General Construction contract; 9 .- . , r . (b) to temporarily enclose the building, when the building was not ready for temporary enclosure; (c) to heat the unenclosed building; (d) to work in hazardous working conditions; and (e) to reschedule and resequence work inconsistent with the Project schedule. JJ. Using its own resources, CCI attempted, under protest, to resolve the adverse impact of the extreme weather conditions by deploying its own resources to achieve progress on the Project, which include the extra work of snow and ice removal. CCI made it clear that such extra work was to be compensated by the District. 34. As a consequence of the foregoing, CCI incurred additional costs which were not reasonably anticipated at the time of bidding, for which CCI deserves compensation. TaB DISTRICT'S .AILURE TO COORDINATE PRIM. CONTRACTORS J5. The District, and its agent The Ray Group, failed and refused to carry out contract responsibilities to coordinate the work of the multiple prime contractors performing the Project. This failure or refusal was unanticipated by CCI at the time CCI submitted it bid, and caused CCI to be disrupted from its plan and sequence of work and to suffer additional costs and loss of time in CCI's effort to perform its General Construction contract work. 10 ~ . J6. The General Conditions of Contract, Article 6, Construction by Owner or by Separate Contractors, provides: 6.1.J - The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Contractor shall make any revisions to the construction schedule and [deleted words] deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors and the Owner until subsequently revised. J7. CCI regularly and in good faith attempted to coordinate its contract progress with the District, The Ray Group, and with other prime contractors (1) by compiling and inputting submitted schedule information, (2) by reporting the status of the schedule at each bi-weekly progress meeting, and (J) by corresponding with all parties. J8. CCI performed this coordination in furtherance of the Project Specifications, at Section 01010, Part 1.07 which provides for every contractor to be responsible for the coordination of the progress of his work with the progress of other contractor's work and provides that each contractor shall perform his work at such time and in such manner as not to delay or otherwise interfere with the work progress of other contractors. The District, the Ray Group, and other prime contractors failed and/or refused to coordinate in order to maintain proper Project progress. 11 , . . J9. The Project Specifications place coordination responsibilities on The Ray Group, as the District's Architect for progress meetings at Section 01200 - Project Meetings, as follows: 1.0J ADMINISTERING MEETINGS A. The Architect will schedule, administer, record and report all meetings. B. Reporting: No later than 7 days after each progress meeting date, the Architect will distribute copies of minutes of the meeting to each party present and to other parties who should have been present. 1.05 PROGRESS MEETINGS A. Progress meetings will be held every two weeks. Times, dates and location shall be agreed upon by the Architect, Owner and Contractor. B. Attendance: Job superintendent, Prime Contractors, Owner and Architect as appropriate to agenda topics for each meeting. Major subcontractors and suppliers shall attend when requested. C. The first progress meeting shall be held soon after start of work. All Contractors, having previously carefully examined Drawings and Specifications, shall present to The Architect any questions that have arisen. D. Agenda: 1. Review and correct or approve minutes of the previous progress meeting. 2. Review other items of significance that could affect progress. J. Include topics for discussion as appropriate to the current status of the Project. 4. Construction Schedule: Review progress since the last meeting. Determine where each activity is in relation to the Construction Schedule, whether on time or ahead or behind schedule. Determine how construction behind schedule will be expedited; secure commitments from parties involved to do so. Discuss whether schedule revisions are required to ensure that current and subsequent activities shall be completed within the Contract Time. 12 , . . 5. Review the present and future needs of each entity present, including such items as: a. Interface requirements b. Time c. Sequences d. Deliveries e. Off-site fabrication problems f. Access g. site utilization h. Temporary facilities and services i. Hours of Work j. Hazards and risks k. Housekeeping l. Quality and Work standards m. Change Orders n. Documentation of information for payment requests 40. CCI notified the District, and, its agent The Ray Group, of the repeated failures of other prime contractors to coordinate with CCI, including the fOllowing particular areas: (a) The Sitework contractor refused to perform his grading work in the school courtyard. This refusal prevented CCI from performing its sidewalk work in the courtyeard, and created further problems relating to limited access via two J' 0" doors; (b) The District did not provide timely access as planned to the building pads to CCI during the 199J construction season, which caused disruptions to the prime Plumbing contractor performing slab work and the prime Electrical contractor performing duct work; (c) In the spring of 1994, the delivery of light fixtures for installation by the electrical 13 , I , , contractor was late, which had a serious impact on CCI's schedule; (d) In the fall of 1994, the site contractor, the electrical contractor and the mechanical contractor were not on schedule as agreed upon in previous progress meetings, and they did not provide scheduling information as required by their contract. , ij ~ , il In all of the above, the District, and/or its agent, The Ray Group, failed and/or refused to fulfill contractual obligations to coordinate, all of which worked to the detriment of CCI. 41. The District insisted that CCI meet unrealistic construction schedules, arising out of problems caused by the District, The Ray Group, and other prime contractors, and caused CCI to accelerate its work to meet the District's unilaterally ordered milestones. This caused disruption to the progress of CCI's contract work. CCI incurred additional costs to accelerate its work to comply with the directives of the District, for which compensation is due to CCI. BITRA WORK TO CORRECT BUILDING SLAB SETTLEMENT 42. CCI was required by the District to perform extra work to correct a building slab settlement which occurred as a result of the improper actions or inactions of the District, The Ray Group, and/or the District's Sitework prime contractor. 14 " 43. On July 15, 199J, before CCI accepted the building pad for the ntart of building construction, the District (through its Project Manager) acknowledged to CCI that the building pad met all architect and engineer requirements and was acceptable for the start of building construction. This was evidenced by the signature of Project Manager Ed Haldeman in a document attached hereto, dated July 14, 199J, marked Exhibit "C" and incorporated herein by reference. 44. CCI had expressed its concern with the insufficiency of evidence of compaction tests by the District for fill operations undertaken by the District's prime sitework contractor, and had informed the District of this concern prior to slab construction. There was no conclusive evidence that the District had performed compaction tests on every lift of backfill (one test per every 1600 square feet per fill layer) as specified in Project specifications, section 02200. 45. The building slab-on-grade experienced settlement in Building section B. The District required CCI to perform remedial work to correct the settlement deficiency. 46. CCI corrected the slab settlement at substantial expense for which compensation is due and owing. CCI was not at fault in causing the above described settlement, which settlement would not have occurred had the District's Sitework Contractor adequately compacted and tested the building pad as requested by CCI. 15 .' IMPROP~R BACKCHAROE FOR SINK ACCESSORIES 47. The District, and/or its agent The Ray Group, has acted improperly by back-charging CCI for procurement of materials which were to be furnished and installed by the Plumbing contractor, a separate prime contractor of the District. 48. The District, and/or its agent The Ray Group, directed CCI to furnish sink type S-6 and S-7 from Elkay Catalog No. DRKR- 25l7-C. The District, and/or its agent The Ray Group, directed CCI to provide this sink type complete H1th accessories known as faucets and bubblers. 49. CCI's scope of work did DQt include the furnishing of the accessories known as faucets and bubblers for sink type S-6 and S-7 by clear reference to the District's plans and specifications. The Complete Sink Schedule on architectural drawing A-35 provides two specific notes as follows: "GC [general contractor] to furnish and install sinks (& accessories on S-12 only) "P.C. [plumbing contractor] to furnish and install accessories (except S-12) II 50. The District's request for an S-6 or S-7 sink places no obligation on CCI to provide accessories for that type of sink, particularly where that obligation is squarely within the Plumbing contractor's scope of work. When the District requested CCI to furnish these accessories, CCI rightly insisted upon an ADD change order to the CCI contract. The District wrongfully refused. 16 51. Notwithstanding the above, the District, or its agent The Ray Group, unilaterally issued a deductive change order to CCI for the cost of furnishing and installing the referenced faucets and bubblers, which deductive change order is inconsistent with the terms of the plans and specifications. 52. The District deductive change order in the amount of $2,711.15 is an improper change order which must be reversed. IXTRA WORK TO ~URNISH AND INSTALL CONCRBTB PADS AT TICK IT BOOTHS 5J. CCI was directed to form and place three concrete pads at the ticket booths by the District and/or its agent The Ray Group in August of 199J. This work was extra to CCI's scope of work. 54. The directed work was part of an alternate bid item (Alternate SDP-4) that was not part of the General Construction bid package, and was in fact an bid alternate under the Sitework contractors bid package. In as much as the District, or its agent, The Ray Group, directed CCI to perform this work, this work was performed under protest in order to expedite the Project with the expectation that CCI would be compensated for the extra work. COMPBNSABLB IMPACTS AND EXTENSION OF CONTRACT TIMI 55. CCI's ability to perform its scope of contract work on time and within its budget was severely and adversely affected by the actions and omissions of the District, and/or its agent The 17 Ray Group, and/or other prime contractors of the District, all of which is the responsibility of the District. 56. Contract perf~rmance was extended on the critical path solely as a result of the following actions and omissions of the District, and/or its agent The Ray Group, and/or other prime contractors of the District: (a) (b) (c) District providing late site access; incomplete building pad; building pad not having been compacted according to specification; building pad compaction not having been tested (d) according to specification; (e) The Ray Group's requirement that the sequence of work not be as CCI planned, but instead be reversed to suit the interests of the District; (f) design errors; (g) untimely resolution of design errors; (h) untimely responses to shop drawing submissions and other CCI requests for information; (i) failure to coordinate the multiple prime contractors by assuring adherence to CCI's Project progress schedule; (j) failure to adhere to Project specifications in the issuance of directions to prime contractors; (k) failure to make payment for compensable extra work; (I) wrongfully threatening CCI with liquidated damages; 18 (D) wrongfully creating a job climate which forced CCI's acceleration of contract work and project schedule, and forced CCI to incur costs in the field and in the home office which were never reasonably anticipated, and impacting CCI adversely; (n) causing an unanticipated and unforeseeable Project delay of approximately twenty (20) weeks, and disruption to orderly Project completion. 57. All of the above actions and/or omissions were not reasonably anticipated at the time CCI submitted its bid to perform the General Construction contract work. CCI should not have been made to incur extra costs nor extra time, caused by these actions and/or omissions. SUMMARY or DAMAGES 58. CCI suffered damages as a direct result of the District's, or its agent The Ray Group's wrongful and erroneous contract administration, contract interpretation and error or omission, as follows: A. GBNBRAL CONDITION ITEMS: 1. superintendent 20 Weeks at $1419.00/wk. Foreman 20 Weeks at $Jo.44/hr. on-site Project Engineer - Full time on-site for 6 months due to magnitude of problems General Labor 20 Weeks at $19.67/hr. Trailer Rental 5 Months at $J08/mo. = $ 28,380.00 2. = 24,352.00 J. = 24,160.00 15,7J6.00 1,540.00 4. = 5. = 19 E. DAMAGES RELATED TO OWNER'S ~AILURE TO TEST COMPACTION OF SUBGRADE Damages related to District's failure to test compaction of subgrade resulting in removal and replacement of concrete slabs Labor Material Equipment Testing Total Dir~ct Costs profit (10%) Subtotal Direct Costs $ 16,559.00 2,212.00 6,103.00 1. 598.00 $ 26,472.00 2.647.00 $ 29,119.00 F. DAMAGES RELATED TO IMPROPER BACICHARGE Damages related to improper backcharge for faucets and bubblers Deduct Change Order Refused by CCI Subtotal $ 2,711.00 G. DAMAGES RELATED TO REJECTED CHANGE ORDER Damages related to Owner's directive to install ticket booth concrete pads Total Direct Costs Profit (10%) Subtotal $ $ 1,J90.00 139.00 1,529.00 H. TOTALS 1. General Conditions - $12J,170.00 2. Extended Home Office Overhead 85,J16.00 J. Snow Removal 21,768.00 4. Additional survey 2,014.00 5. Damages Related to Owner's Failure to Test Compaction of Subgrade 29,119.00 6. Damages Related to Improper Backcharge - 2,711.00 7. Damages Related to Rejected Change Order 1.529.00 Total $265,627.00 21 , 59. CCI suffered from the performance of work beyond the originally anticipated contract time, and CCI is entitled to an extension of contract time in the amount of 140 calendar days. WHEREFORE, CCI Construction co., Inc. demands jUdgment in its favor and against Cumberland Valley school District in the sum of $265,627.00 plus the granting of an extension of Contract Time of 140 calendar days, plus attorneys fees, as may be appropriate, and such other relief as this Court deems appropriate. POWELL, TRACHTHAN, LOGAN, CARRLE & BOWMAN, P.C. By () ,))It.<t~':fl eVh'tl-,..J C. Grainger Bowman I. D. #15706 David W. Francis I.D. #5J718 Michael W. Winfield I.D. #72680 114 North Second Street Harrisburg, PA 17101 (717) 2J8-9JOO Date: January 4, 1996 22 CUMBERLAND VALLEY MIDDLE SCHOOL 201.91 SECTION 01010 . SUMMARY OF WORK PART I - GENERAL 1.01 RELATED DOCUMENT~ A, Drawings and general prOVisions of Contract, including General and Supplementary Conditions and other Division-I Specification Sections, apply to this Section. 1.02 PROJECT DESCRIPTION A. The proposed project wlll be located in the eXisting Cumberland Valley School District campus in Silver Spring TownShip, Cumberland County, PennsYlvania, along U.S. Route II, Carli~le Pike. The eXisting site is comprised of 102 acres of land, B, The building 101111 be a "T" shaped structure with the two story Academic wing located along the top of the tee and the one story auditorium, Administration, Cafeteria, Gymnasium, Technologies, Music and Support SerVice portion located on the base of the tee. C. The building's construction is rated non-combustible, comprised of a steel frame with non-load bearing masonry interior and exterior walls, The primary exterior finished will be split-face CMU and brick, with aluminum frame windows and tinted glaZing. The bUilding roof will be flat/slightly pitched steel Joists, steel deck and rigid Insulation with an adhered single membrane roof. The primary Interior finishes 101111 be painted CMU and gypsum board partitions, acoustical tile ceilings or painted exposed structure (at gym, shops, auditorium and cafeteria); the floors 101111 be carpet, VCT, terrazzo, quarry tile, ceramic tile and wood (at gym and at stage). 1.03 DESCRIPTION OF CONTRACTS . A. The oroiect Is soecif1ed to be multiole construction contracts segregated into the fOllowing contracts, each requiring a separate proposa 1 : Contract No, 1 General ConstructioQ shall Include all labor, materials, equipment and services necessary for the complete construction of all Work shown on draWings and described In Division O. I, & 2 through 12 and 14 of the Specifications, eXcluding sections indicated for Contracts 2. 3, 4 & 5, and including building foundation excavation and backfill In Section 02200. Contract No. 2 "VAC Constructio'1 shall include all labor. materials, equipment and services necessary for the complete construction of all work shown on draWings and described In divisions O. 1 and 15 of the specifications for HVAC work, SUHHARY OF WORK 01010-1 CUMBERLAND VALLEY MIDDLE SCHOOL 201-91 Contrict No, 3 Plumbing Construction shill include ill libor, miteriils, equipment and services necessary for the complete construction of all work shown on drawings ind described In Divisions 0, I ind 15 of the speciflcitlons for plumbing work. Contract No.4 Electrical Construction shall include all libor, materials, equipment and services necesnry for the complete construction of ill work shown on drawings ind described In Divisions 0, I ind 16 of the specifications for electrlcil work. Contrict No,S Sltework Construction shall include ill labor, materials, equipment, and services necessny for the complete construction of all work shown on driwings ind described in Division 0, I, 2 & 13 of the specificitions for sitework, excluding bUilding foundation excavation and bickfill in Section 02200. 1.04 WORK PROVIDED BY OWNER A. The Owner will provide loose finishing and equipment not specified herein and references as Not in Contract (N.I.C.), or furnished by Owner. 1.05 WORK SEOUENCE A. This project has no phasing requirements. 1.06 CONTRACTOR USE OF PREMISES A. General: during the construction period the Contractor shall have full eu of the premises for construction operations, including use of the site. B. Confine operations to areiS within Contract limits Indicated. Portions of the building or site beyond areas in which construction operations are indicated are not to be disturbed. C. Contractor shall maintain means of egress from building as required by code. 1.07 PROJECT COORDINATION A. Every Contractor shall be responsible for the coordination of the progress of their work with the progress of all other contractor's work. B, Inumuch is Proiect comDletion within the time limit is dependent upon cooperition of those engaged therein, it is imperative that each Contractor perform his work at such time and in such a manner as not to delay or otherwise interfere with work progress of other Contractors, If any Contractor's work depends upon proper execution or results of another Contractor's work, the former shall inspect the work and report any defects therein to the Architect. SUItlARY OF WORK 01010-2 . CUMBERLAND VALLEY MIDDLE SCHOOL 201-91 00500 AGREEMENT BETWEEN OWNER AND CONTRA~ THIS AGREEMENT, entered into this 16th day of .June 199.1. , by and between Cuwberla~d Va] ley School District, Cumberland County, PA hereafter called the Owner', and I an individual, of OR cons 1st i ng of , a partnersh i p, and as all the partners, having its principal office at OR CCI Construction State of Pennsylvania 4720 Old GettysburQ Road. having MechanlcsburQ. Cumberland , a Corporation of the its principal office at County, Pennsylvania, hereinafter called the "Contractor" (and hereinafter treated as if of the s1n9ular number and neuter gender) WITNESSETH, that the "Contractor" and the "Owner", for the considerations named, agree as follows: WHEREAS, the Owner heretofore has advert i sed for proposals I as required by Pennsylvania laws, for the Genera Construction work necessary for the construction 0 the Cumberland Valle Middle Schoo , and has received proposals t erefor; an WHEREAS, the Owner has considered the proposals so received and has made an award to the Contractor based upon the proposal so received from the Contractor. NOW, therefore, in consideration of the mutual promises, covenants and agreements herein contained, the Owner and Contractor promise, covenant and agree, as follows: 1. SCOPE OF WORK - The "Contractor" shall furnish all of the materials and perform all of the Genera 1 Constrll.ct 1 on Work shown on the drawings and described In the specifications entitled as prepare y T e Ray Group Inc., Arc itects & P anners, 127 E. Orange Street, Lancaster, Pennsylvania 17602 (acting as and in these Contract Documents entitled the "Architect" and shall do everything required by this Agreement and Contract Documents. AGREEMENT 00500.1 . . CUMBERLAND VALLEY MIDDLE SCHOOL 201-91 2. TIME OF COMPLETION - The work to be performed under this contract shall be CORmenced within ten (10) calendar days after notification by the "Owner" or the "Architect" to start work and shall be completed within 420 calendar days. The "Contractor" shall be liable to the "Owner" for any damages sustained by the latter through extra engineering, Architects' or other costs of any nature Incurred by reason of the "Contractor's" failure to complete Its work by the above date, or any extension thereof granted under Article 8.3 of the "General Conditions". 3. PAYMENTS - The "Owner" shall pay the "Contractor" for the performance of the General Co~tructlon Contract, subject to additions and deductions provided therein, In current funds, the sum of SEVEN MILLION. FIVE HUNDRED SIXTY-THREE THOUSAND. FIVE HUNDRED FORTY DOLLARS (S7,55~.540 ) which sum represents the Contractor's base bid or adjust~d base bid as a result of the acceptance of the following alternates by the Owner as follows: G-I - ~1O.460 Payments shall be made to the Contractor In accordance with Article 9 of the "General Conditions." 4, CONTRACT DOCUMENTS shall consist of the following all of which are part of the contract between the parties as though repeated herein or hereto attached: A. This Agreement B. Performance and Payment Bond C. General Conditions AlA A201 D Supplementary Conditions E. Specifications F. Drawings. G. Addenda Identified as follows: Addendum II: 4/30/93: Addendum #2: 5/6/93: Addendum #3: 5/6/93 (faxed): Addendum #4: 5/12/93 (faxed). AGREEMENT 00500-2 CUMBERLAND VALLEY MIDDLE SCHOOL 201,91 5. REPRESENTATIONS OF CONTRACTOR - The Contractor represents and warrants: That it is financially solvent and experienced in and competent to perform the work and to furnish the plant, materials, supplies or equipment, to be so performed or furnished by it; That it is familiar with all Federal, State, Municipal and Departmental laws, ordinances and regulations, which may in any way affect the work of those employed herein, including, but not limited to, any special acts relating to the work or to the project of which it is a part; That such temporary and permanent work required by the Contract Documents as is to be done by it can be satisfactorily constructed and used for the purposes for which it is intended and that such construction will not injure any person or damage any property; and That it has carefully examined the plans, specifications and site of the work, and that it has satisfied itself as to the nature and location of the work, the character, quality and quantity of surface and sub-surface materials likely to be encountered, the character of equipment and other facil ities needed for the performance of the work, and the general and local conditions, and all other materials which may in any way affect the work or its performance. 6, HEIRS, ETC. - This Agreement shall bind and inure to the benefit of the heirs, legal representatives and successors and assigns of both parties hereto, except that this sentence shall not be interpreted to grant any right of assignment of any nature whatsoever to the Contractor. D, ". A. B. C. 7. The Owner and the Contractor each intend to be bound I ega lly by th i s Agreement. IN WITNESS WHEREOF, the parties have executed the Agreement the day and year first above written. BY: At."~ JlAnt) ./ Secretary AGREEMENT 00500-3 , .. , ., , CUMBERLAND VALLEY MIDDLE SCHOOL 201-91 (Individual Contractor) (SEAL) (Hame of Individual)--- Trading and Doing Business as Witness: -.---------------.-.---.-.....-.....-.-.------------------------------------- (Partnership Contractor) (Name of Partnership) Witness: BY: (SEAL) Partner BY: (SEAL) Partner BY: (SEAL) Partner BY: (SEAL) Partner -----------------------------------------------------------------------------. (Corporation Principal) ~~ nt) Secretary (Corporate Seal) OCI Construction Company, Inc. (Name of Corporatiqo) BY: ~~<t~~~~~rJ Shane A. Miller AGREEMENT 00500-4 .. ....~"UI.\lu.\ ...'n"'~ Ill" ......uID (!) .. J ", I' "1>' ,'_....:' -'""'-, "d'<J;Hl~;4i{i;~,i;",';'::ii;,+J';U,$"~~,;~~~#""""_~M~'''. 0> ( t.. ,'\' , t'" ". nr ; I. it I I; I;. I ' I Exhibit C . .. " I , . , , . FI.LE. ., . .' July 14, 199J , Mr. Ed Haldeman Cumberland Valley Middle 6746 carlisle pike Mechanicsburg, PA 17055 Re: cumberland Valley Middle School School Dear Ed: Per our conversation last week regarding compact,ion results, please be advised of the following: Prior to starting construction, CCI construction company requests copies of all compaction tests taken at the building pad. In reviewing the site operations to-date, CCI is under the impression that compaction tests are only being taken at the top of the backfilled areas. In accordance with the contract specifications, compaction results should be taken with every lift/layer of backfill material. with this in mind, CCI requests that select areas of backfill be excavated and tested ~o ensure proper compaction. In addition, once the building pad is'ready to be turned over for construction, CCI asks that the cumberland Valley school District sign below and return this document acknowledging that the building pad meets all Architect and Engineer requirements and is acceptable for the start of building construction. I . .~ llf Gettysblrg Rend ~btrg, P/\ 17055 F~: (717J 975-5640 "" (717) 975.2650 . I I . . .. . . . . . . , .. . VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to the penalties of 18 Pa.c.s. 54904 relating to unsworn falsification to authorities. ~UC6: SHANE A. MILLER, , Senior Vice President, CCI Date: !' -,. M ~- i~ <"\,! ~-:;: I_co , .. l.t1r~ .J. . G L)': - . );:.': ,...( :C ~.) ~~, '- ..;.;: 0" 1:.-, '. U' i~ , : c :~? ,;~ ~- ': t~_:. ./. '.-' .~ , <:, 'i 'j ,- ,-- w.) .~~. W- I' I ,., ::] , ,:.) (J if 62. Admitted. By way of further reply, CCI incorporates its response to paragraph 61 above. 6J. Denied as a conclusion of law. By way of further reply, CCI incorporates its response to paragraph 61 above. 64. Denied as a conclusion of law. 65. Denied as stated. It is admitted that on June 16, 1993, CCI and the District entered into a prime contract for the general construction of the New Middle School Project. It is further admitted that each party's responsibilities were governed by the terms of the Contract Documents. All other averments are denied as conclusions of law. 66. Denied. The averments in paragraph 66 of the New Matter lack specificity. By way of further reply, CCI's work was performed in accordance with the terms and provisions of the Contract Documents. The remainder of the avsrments of paragraph 66 of the New Matter are denied as conclusions of law. 67. Denied as a conclusion of law. By way of further reply, it is specifically denied that CCI breached any portion of its contract with the District. 68. Denied as a conclusion of law. 69. Denied as a conclusion of law. 70. Denied as a conclusion of law. 71. Denied as stated. It is specifically denied that the responsibility for coordination of the work among the prime contractors on the construction project was vested in CCI by the Contract Documents. By way of further reply, the responsibility 2 for coordination of the work among the prime contractors on the construction pl'oject was specifically retained by the District pursuant to paragraph 6.1.J of Article 6 of the General Conditions of the Contract for construction. All further averments are specifically denied, and strict proof is demanded at time of trial. 72. Denied. It is specifically denied that the contract documents required CCI to perform the coordination of the work among the prime contractors. By way of further reply, CCI incorporates its response to paragraph 71 above. WHEREFORE CCI respectfully requests that judgment be entered in its favor, and against Defendant District for the full amount demanded in its Complaint. COu.rBRCLAXM 7J. CCI incorporates its responses contained in paragraphs 60 through 6J above as if set forth here in full. 74. Denied as a conclusion of law. By way of further reply, the District's active interference in CCI's work as alleged in paragraphs 1 through 57 of CCI's Complaint, which are incorporated herein be reference, renders Section 8.J.3 inapplicable to CCI's claims. 75. Denied. By way of further answer, CCI incorporates its response to paragraph 74 above. 76. Denied. By way of further answer, CCI incorporates its response to paragraph 74 above. J 77. Denied. By way of further answer, CCI incorporate. it. re.pon.e to paragraph 74 above. WHEREFORE CCI respectfully requests that jUdgment be entered in its favor, and against Defendant District, for the full amount demanded in its Complaint. POWELL, TRACHTMAN, LOGAN, CARRLE & BOWMAN, P.C. By C. Gra nger I.D. #15706 Michael W. Winfield I.D. #72680 114 North Second Street Harrisburg, PA 17101 (717) 2J8-9300 Date: June 6, 1996 4 I' r' 0, r " L: , I , , . I~ " ., , ~ ~ , I ! i 'J ,.. 'I. f' \,') :./ t.: - U .. 0 ; " ~ ! c ! ~ Z . c 0 j ~ .. :; 0 .. ::l 0 .. II Z ~ . <( VI .- :J",u~i I ~ a ti ~ II ~ :> a ~ ~ :S iii i I: cox ~ . < 0 .. ~ >. 0 0 W ~ ,... ta D ~ N :5 i .. .t__.. ,. ,.. - ~ . ~I~~H~SHERIFF.~ OFFICE SHERIFF SERVICE PROCESS RECEIPT,end AFFIDAVIT OF RETURN 50 NORTH DUKE STIlEET. LANCASl EA. PENNSYLVANIA 171102 . 1717) 21m \1200 .--.---- ~- -.....-. .,---.,.--,...-.-,--.--.----. ~ INs-rAUCTIONS FOR SERVICE OF PROCESS on u~ f.~.'" of the lal tNo. 5) copy 01 Ihlt lrnm PIt... t'r~ Ql' pMl IItglbly Do M dltach lI'ly coptS 8 ---:!! 2 counT NUMllll(---~-- t. PLAINTIFF/51 Cumberland valley_sE!1()()l_~!",-trlc-L . ...96~llQ.Civil. . 3 DEFENDANT/51 .1 I YI't: m WllIT 0" COMl't AINT The Ray Group, Inc.._..__________.__.____.._._._ _ . _. ..._. __._..._._ __WriLta_Join_Addtl-..Oef..____i:: SERVE { 5 NAME OF INDIVIDUAL. COMPANY. COIU'OIlAIION [tC. TO liE UEIWEO ~ . ~~~DA~5~~511~1~?f~tr-!APJi1~%~).-C~.V~-k)i;;.1:;I-J-.. sl~i"lilmllll)C'oijo)M- .-.. ...-- - ----- --.-- -------"-- ~ AT 127 Eas t Ora!!'3!!_.? t r~~. t.,_LiJ!1.c~_f!.t.9!'.!__.!'__~_I.'7..60.1.____~~__________.____..___ 7. INDICATE UNUSUAL SERVICE COMMON OF PA DEPUTIZE OIHE" Cumherl and Now, __ Jo'eb. 14 19 __~~~:::-:i:-SHERIFFOFI!~\(~COUNTY, PA, d~ti';;bYd~P~lilOlhe sl;~;;iioi'--.----.--._- ----1&ru:D.13ll r ... .." ._.__._._ Co un IV to oxoculo litis '0!I.i!P'~"2:~I"Olurn thereof l)II~~ to lew. This depulnlion being mode otllto requost nndnsk oltlto plmnlill. .. --:r::."".....ci"',,;.r.f.'n?::t,;\t:./;~------"---- S. SPECIAL INSTRuc'iIONS.O'R"Di"ER INFORMATION'i"AT WILL ',,'SSIST IN'EXPEDITINO SERVICE: ... .. ........" ~ - . NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN. Any IIHpulV shulIlI IIIV}'IIIO upon or uMehlng uny property undor within wnl may leavlt r.amo wllhoul a wlIlchmlln. III cU51ot.ly 01 whomovot IS lound m p05S11l>!>lon. illlor notllYlng pOIson 01 levy or nllachmonl, wllhoulllabl1ily on the part 01 such doputy or 1110 .honlllo any plalnllll hOlCln 10f . ~. daatl Ion tlt fI.lIllOW\1 01 uny such propmty bololO shonlfs aalo thlllool S. SIGNATURE 01 ATTORNEY OJ o'ho' DRIDINATDR . M. D'-;;~.'''.;;-.~;a'~ TE.LEPHONE NUMUER =CATE Richard Snelbaker ESQ. AT SNELBAKER & BRENNEfAW-697-8528 2-13-96 12. SEND NOTICE OF SERVICE COpy TO NAME AND ADDRESS BELOW:(Thiaarean;ulib';-C:ompleled ir "011C11110 b. maned) I 44 W MIiN ST. I MECHANICSBURG._J'.~_.J.IP??=-Q3J.e SPACE BELOW FOR USE OF SHERIFF ONLY - 00 NOT WRITE BELOW THIS LINE NAME 01 AulllOfllOIJ Lcsoo;;j;;;!VOI-CIO~----- 14, Qalo ROcOl....od 15 E)lpllllhonIHOllflng dale 13. I acknowledge recclpt ollha Writ} or compl.,nl R. 'nd"Rlod 0"ovo..J.(J!l.\'._foI9.R!u:,s_.~95..3609. .... ._. ._. _ . ._._." _.2~15-96___ ~_t.4ft96 16 I horeby CERTIFY and RETURN thai I hllvo pl1ll>llnnUy SIlf\ltlil, ~h;l\Ie l!lglll UVlth~nt:u 01 SIHVICU II:> tihown III -nllmarks., hnvo Oll!culcd tiS shown in "RomOl"", tho wrll or complainl doscllhcd on Ihll mdl'.llllu:lI, COIll~IV. CorPllfllltoll nle, ill 11m ,lddf{!!is shol'rn ahuve Of on tho indIVidual, company. foot. porallon. ele, ollha addlO!i8 IJlserted bolow by hnmJuIO II TRUE and AnESTED COPY thereal. 17. I homily cCltlfy nnd telum n NOT FOUND bm;ilU!iO Imn unable lu loc;llu!lll! Ulclwnhl,ll. compillly, CflfjlOfilhlll, tJlc, flallllld uhovo (Seo lemnlk~ helow) '5 NRmo Rnd 1,110 01 ",d,,,dIlRI ..,vod ,,1 '1:j'mwn 01;';;oTlli"~ldt,on;,",liC7~.;"':;.';ii""'. -.'-:.. -- ). .--ro . I~'~O" 01 ,","h.. "0. ",' "'~..,'., M .c:....kAt.. ~,,~A__ _ =o_IJ_____.._ .r_fle.StJ_~~_i_~_____ ~~:~IO:;;Si~:~O III ItlU tlolond.lllla IllHml 20 Add,." 01 who,. .d'd Icomplo.o onIV" d'li~,"n shown "ho'''1 t ''''0' 01 "FO. AI''''''''"''' NO. C,'V. !lOlO. T.p 21 Dalo 01 S "'''0 22. Tlmo Slalo ond Ztp Cocln) II ;)/ (5 ~ - PM eST ... 30...Ml__ Dep.,nl.eO'O] MII"Ti.;p.,n'I~'leIMII" Oep.lnl. 26 :",y cr."__L~t.:r6 F 132~05- Dep.lnt. 23 ATTEMPTS Mil.. - .5 OeP~tJ_ Dei. 25. SOrvlCO C051s 24 Advanco Cosls a84319 30 REMARKS, 100.00 ~ /. .,~"j d ft-'f93 zP(, h b STA: ----,:;D-.-P--- 31 AFFIRMED nnft lluhSCflhml 10 holoro mo tillS ~~______.___n : dRV 01 -rL~trf:5 -'~ - -" .f)~ Cl.lL=.==_ i~~UCII\lIVN'llilr'" p,)~ MY COMMISSION EXPIRES 38 I ACKNOWLEDGE RECEIPT OF THESHERIF~BRETUAN'SIGNATUR-E}'-- .~--. OF AUTHORIZED ISSUING AUHtORITY AND TITLE ---~~---~~,-'--_._---------'~-- NC ~"16I1OC8IVIl'J lcsn. I . '911 Amtllllltld \!}<Jj I ISSUING AUTHClHI J Y . . ~ C'I ..;t' '~ct 0 c2 J ill ~ l , i:....h;"'. !...~~~tf; ...., :';i; 0 .- '(J uJ 0 In '0 ill C\:l j3 0: w .- it~ &...- 05 \.0 C'I . ,. ~--. CCI CONSTRUCTION COMPANY, INC. : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA . . v. . . CUMBERLAND VALLEY SCHOOL DISTRICT : NO. 1996-110 Civil Term Defondant v. . . THE RAY GROUP Additional Defendant . . . . PETITION POR LEAVE TO AMEND COMPLAINT CCI Construction Company, Inc. ("CCI"), by and through its attorneys, Powell, Trachtman, Logan, CarrIe & Bowman, P.C., hereby petitions this Court for leave to amend its Complaint, and in support thereof avers the following: 1. On January 5, 1996, CCI filed its Complaint against Defendant Cumberland Valley School District ("District"). 2. On January 16, 1996, service upon the District was offectuated by the Sheriff of Cumberland County. J. On February 2, 1996, the District entered its appearance by filing Preliminary Objections to the Complaint. 4. Among the objections interposed by the District was a preliminary objection in the nature of a demurrer to CCI's claim for attorney's fees. ~ paragraphs 5 and 6 of District's Preliminary Objections. CERTIFICATE OF SERVICE AND NOW, on March 15, 1996, I hereby certify that I have served a true and correct copy of the within Petition for Leave to Aaen4 Co.plaint upon the following person(s) and by regular first class United States mail, postage prepaid. Richard C. Snelbaker, Esq. 44 W. Main Street Mechanicsburg, PA 17055 Attorney for Cumberland Valley School District R. Thomas McLaughlin, Esq. Kelly, McLaughlin & Foster 1700 Atlantic BUilding 260 S. Broad Street Philadelphia, PA 19102-5092 Attorney for The Ray Group ~ '.. \,J I - 17' ,oJ '- I .. tl..1 ~. - 1",,- r:l . " .. . tC:i :. ~\ I lr ~. .j f,: r:> G'~ \ (0) , r< : ',i I : 0 : I .u.. I', l.'l ) L- ,,~ . () ,"A. ~'1 ~ .;t ll'j '1 ~ t ~ CERTIFICATE OF SERVICE AND NOW, on March 15, 1996, I hereby certify that I have served a true and correct copy of the withi~ Pr..cip. tor Li.tinq c... tor Arqua.nt upon the following person(s) and by regular first class United States mail, postage prepaid. Richard C. Snelbaker, Esq. 44 W. Main Street Mechanicsburg, PA 17055 Attorney for Cumberland Valley School District R. Thomas McLaughlin, Esq. Kelly, McLaughlin & Foster 1700 Atlantic BUilding 260 S. Broad Street Philadelphia, PA 19102-5092 Attorney for The Ray Group C~:&B~ Complaint to withdraw i1s request for allomey's fees. Concurrently, CCllisted the remaining objections for argument before this Court. On March 20. 1996,this Court (per Order of Hess, 1.) granted CClleave to wilhdraw its claim for allomey's fees. In accordance therewith, CClliIed its First Amendment to Complaint on or about April I, 1996, On April 8, 1996, CCI received the District's Briefin Support of its Preliminary Objections, CCI now files this Briefin Opposition thereto. II. ISSUES PRESENTED A, WHETHER CCI'S COMPLAINT COMPliES WITH THE SPECIFICITY REQUIREMENTS OF PA.R.elV.p. NO. IOI9(a)? (Suggested Answer: Yes) B, WHETHER eCI's COMPLAINT HAS COMPliED WITH THE SPECIFICITY REQUlRFMENTS WITH REGARD TO DAMAGES? (Suggested Answer: Yes) C. WHETHER CCI'S COMPLAINT SETS FORTH A CLAIM FOR DELA Y DAMAGES UPON WHICH REliEF MA Y BE GRANTED BY THIS COUR'/? (Suggested Answer: Yes) D, WHETHF.R CCI'S COMPLAINT PROPERLY STA TES A CLAIM UPON WHICH RELIEF MA Y BE GRANTED DUE TO THE D1S7'RICT'S ' FAILURE TO COORDINA TE THE MULTIPLE CONTRACTORS' WORK ON THE PROJECn (Suggested Answer: Yes) J c. CCl's Complaint Complies With The Specifici~ ReQuire,:e~~s ~:The Pennsvlvania Rules Of Civil Procedure With ReLlard To D II The District's second objection to CCl's Complaint alleges that CCI has "fail[ed) to comply with Pa.R.Civ.P. 1019(1) in that items of special damages have not been specifically stated." S.el: District's Preliminal)' Obiections at ~14. Special Damages are damages that are not directly related to plaintill's cause of action; that are not the usual and ordinary consequence of the wrong done, but depend upon special circumstances. S.el: Weinllard v Fischer & Porter Co., 47 D. & C.2d 244, 249 (C.P. Bucks 1968); Standard Pennsylvania Practice 2d ~ 16.65 (1994). CCI disputes the District's allegation that the damages it seeks are other than those which nOllnaJlyand ordinarily arise from a delay claim on a construction contract. Nevertheless, CCI has pled its damages with sufficient specificity so as to set forth its right thereto, and to afford the District the opportunity to defend itself. As set forth 2U!DI, that is all that is required under Pennsylvania procedure. Accordingly, the District's objection should be denied. D. CCI Has Set Forth A COllnizable Claim For MonetalY Delay Damaves. Notwithstandinll Article 8 3.3 Of The Contract In its third objection (in the nature of a demurrer) the District asserts that, based upon , Art. 8.3.3 of the Contract, CCI has waived any rights to recover monetary damages for delay. The Districts waiver theory, however, rises and falls upon the application of Art. 8.3.3 to the actions and omissions of the District complained of in CCl's Complaint. As set forth below, the District, based on the facts as pled by CCI, cannot invoke Art. 8.3.3 as a defense to CCl's claims. Pennsylvania courts have routinely refused to enforce contract clauses which limit a party's liability; particularly "no damage lor delay" clauses similar to Art. 8.3.3 of the Contract 6 in this case. The rule in Pennsylvania is that exculpntory provisions in a contract cannot be raised as a defense where (I) there is an affirmative or positive interference by the owner with the contractor's work, or (2) there is a failure on the part of the owner to act in some essential matter necessary to the prosecution of the work. Coatcsvillc Contractors & Enllineers. Inc v. Boroullh ofRidh:y Park, 509 Pa. 553, 506 A,2d 862 (1986); Gasoarini Excavatiml Co v Pennsylvania Turnpike Commission, 409 Pa. 465, 187 A.2d 157 (1963). Under such circumstances, the interference and/or omissions by the owner are deemed to be outside the contemplation of the parties at the time the contract was entered into, and therefore delay resulting therefrom is not subiect to waiver. S.el: Coatesville. ~ 506 A.2d at 867. /--:.::=:. --- -, ~n Coatesville Contra~~rs.~oroullh of Rid lev Park,~, the Pennsylvania Supreme Court held that a contractor could assert a claim for additional compensation in excess of the actual price against the owner, notwithstanding the presence of a "no damage for delay" clause in the contract. The contract called for the contractor to remove salt from a lake bed. Prior to the job being initiated, the lake was drained, and the specifications in the contract provided that it would remain in that condition until all silt removal work had been completed. However, at the time the plaintiff was required to perform the work, water covered the site, occasioning extra expenses in the performance of the contractor's scope of work. Ill, 506 A.2d at 863-864. The parties' contract included a "no damage for delay" clause which is analogous to, if not more onerous than, Art. 8.3.3 of the CClmistrict Contract. The Coatesville contract provision provided, in relevant part: The Contractor shall not be entitled to any claims for damages from any hindrance or delay from any cause whatever in the progress of the work, or any portion thereof, but when such hindrance or delay results from causes entirely beyond the control of the contractor, said hindrance or 7 stated a claim upon which relief may be granted. Accordingly, the District's objection should be denied. IV. CONCLUSION For all the foregoing reasons, Defendant Cumberland Valley School District's Preliminary Objections should be denied, and Defendant should be ordered to file a responsive pleading to the Complaint. POWELL, TRACHTMAN, LOGAN, CARRLE & BOWMAN, P.C. By (J Ji. L c.Grainger~ I.D. #15706 Michael W. Winfield I.D. #72680 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Date: April 12, 1996 12 , ..')If,/ Cl/hcO !10., O'f'\a.. C.t41 ~ IN THE COURT OF COMMON PLEAS OF ~_,_~,: U1D"/t'2;'L CUMBERLAND COUNTY, PENNSYLVANI~~' ~2 f-c 0J' V1J.!l, ,.11 ") \Ct/,' :: ..nVv~ 0\ '';''lA.(!V CCI CONSTRUCTION CO., /\V!.\d. ~\J-- X ~r'. Plaintiff ~ 'l~l\ Vn NV tJ: vs. -f ~.. IJ {UMBERLAND VALLEY SCHOOL tJ ,ay DISTRICT, ) Defendant cJAf}J. THE RAY GROUP, Additional Defendant No. 96-110 CIVIL TERM I ,_ r 1)' ( CIVIL ACTION - LAW U ~ - rJ. ( ) I~ JURY TRIAL DEMANDED )r.U~(tJL"\~l I, lJ '. \" . (~lla' ~AIV' :\ l DEFENDANT CUMBERLAND ~~~LEY SCHOOL DISTRICT'S \. BRIEF IN SUPPORT OF ~~~LIMIN~~~ OBJEC~10NS TO PLAINTIFF'S COMP~!NT vs. PROCEDURAL AND FACTUAL BACKGROUHQ CCI Construction Company (IICCIII) initiated this umberland Valley School District (IIDistrictll) was served with the Complaint on or about January 16, 1996. The District filed timely preliminary objections to Plaintiff's Complaint on a Complaint on January 5, 1996. Defendant LAw O'''CEIl SNELBAKER 1\ BRENNEMAN February 2, 1996. District joined The Ray Group as an additional defendant by Writ issued on or about February 13, 1996 and served February 15, 1996. CCI filed a Petition For Leave to Amend Complaint on or about March 15, 1996 which, inter alia, sought to drop its request for attorneys fees. By Order dated March 20, 1996, this Court granted CCI's Petition and ordered CCI to amend its Complaint within 20 days of service of the Order. By letter LAW O....ICE. SNELBAKER a BRENNEMAN dated April 1, 1996, CCI filed its First Amendment to Complaint which withdrew its claim for attorney's fees. This case involves the construction of a new Middle School for the District. (Complaint, Paragraph 4.) On June 16, 1993 CCI and the District entered into a contract for the general construction of the new Middle School. (Complaint, Paragraph 9.) Article 8.3.3 of the contract between CCI and the District provides: No payment or compensation or claim for damages shall be made to the Contractor as compensation for damages for any delays or hindrances from any cause whatsoever in the progress of the Work, notwithstanding whether such delays be avoidable or unavoidable. The Contractor's sole remedy for delays shall be an EXTENSION OF TIME ONLY, pursuant to and only in accordance with this Paragraph 8.3, such extension to be a period equivalent to the time lost, by reason of any and all of the aforesaid causes, as determined by the Architect. In consideration for this grant of a time extension, the Owner and the Architect shall not be held responsible for any loss or damage or increased costs sustained by the Contractor through any delays caused by the Owner or Architect or any other Contractor or on account of the aforesaid causes or any other cause of delay. In the event the Contractor shall choose to litigate this clause or issue and loses said litigation, the Contractor shall reimburse the Owner and the Architect for their reasonable attorney's and expert witness fees and all other costs and expenses incurred by them in the litigation. Despite the clear language of 8.3.3 set forth above, CCI has brought this action for damages. II. ISSUES PRESENTED A. Whether the Complaint is insufficiently specific? (Suggested answer: Yes.) -2- B. Whether the Complaint is insufficiently specific with regard to special damages? (Suggested answer: Yes.) C. Whether CCI is barred from seeking monetary damages for the alleged delays by Section 8.3.3 of the contract? (Suggested answer: Yes.) D. Whether CCI had responsibility to coordinate work and contractors under the contract? (Suggested answer: Yes.) III. ARGUMINT A. THI COMPLAINT 18 IH8UrrICIINTLY 8PICIrIC. Pennsylvania is a fact-pleading jurisdiction. Smith v. Brown, 283 Pa, Super. 116, 423 A.2d 743 (1980); Pa.R.c.p. 1019{a). A complaint must formulate the issues by summarizing the facts essential to support the claim. Smith, 423 A.2d at 745. Mere conclusions are not sufficient to plead a cause of LAW 0'''(:1:0 SNELDAKER It BRENNEMAN action. Where a party fails to plead specific facts in the complaint, those claims are properly dismissed. Hornunq v. Schauseil Insurance, 422 Pa, Super. 472, 619 A.2d 775. When these pleading requirements are applied to the vague and conclusory averments of the Complaint, it is apparent that the Complaint is insufficiently specific. In paragraph 17 of the Complaint, the "agents or other prime -3- LAW OI"P1CU SNELBAKER a BRENNEMAN contractors of the District" are not identified and there are no facts pleaded to indicate the manner in which these unidentified entities allegedly caused a delay. In paragraph 18, CCI fails to identify the subcontractors alleged to have scheduling conflicts and fails to plead any facts surrounding the alleged conflicts. Pa.R.C.P. 1019(f) provides that "[a]verments of time, place and items of special damage shall be specifically stated." In paragraph 21, CCI fails to plead the dates and extent of the allegedly untimely performance by the Sitework contractor. Such failure is a direct violation of Pa.R.C.P. 1019(f). Similarly, CCI fails to plead the places of the alleged design defects and errors referred to in paragraph 22. In Paragraph 23(e), CCI makes a vague reference to its "critical path activities" being "adversely impacted". Such a statement is conclusory and fails to set forth material facts to support such a conclusion. In paragraphs 24 and 25, CCI refers to an "unanticipated and unreasonable increase in Project costs and time for completion" without setting forth a factual basis for the alleged increases. In paragraph 26, CCI fails to indicate the alleged sequence of the work which it avers was broken and further fails to identify the work that was alleged to have been performed out of sequence. In paragraph 27, CCI does not plead material facts sufficient to identify the manner and extent to which the Site contractor allegedly failed to perform in a timely manner. In paragraph 40(a), CCI fails to identify its alleged -4- sidew4lk work in the Courtyard. In paragraph 40(b), CCI does not aver the location and manner in which the prime Plumbing contractor and prime Electrical contractor were allegedly disrupted. In paragraph 40(c), CCI fails to aver material facts to specify the "serious impact" which it allegedly sustained in its schedule. Paragraph 40(d) does not set forth the alleged disruptions in the schedules of Site contractor, Electrical contractor and Mechanical contractor. I-AW O"lI::U SNllnAICl:ft It BRENNEMAN Paragraph 41 is insufficiently specific for failure to aver facts to support the conclusions averred as "unrealistic construction SChedules", "problems caused by the District, The Ray Group and other prime contractors", the "District's unilaterally ordered milestones", the alleged "disruption to the progress of CCI's contract work" and the alleged "additional costs". In paragraph 56, CCI fails to aver facts to indicate which of the enumerated alleged actions and omissions were caused by the District, The Ray Group and/or other prime contractors. In paragraph 58, CCI fails to indicate the dates comprising the "20 weeks" in A.1, 2 and 4; the "6 months" in A.3; the "5 months" in A.5, 6, 7, 8, 9, 10, 11 and 12 and the "140 calendar days" in B. CCI also fails to set forth in paragraph 58 the composition of its various alleged damages such as the number of hours, number and identity of persons performing services, amounts actually spent on utilities, office sUpplies, truck expense, overhead, snow removal and costs to remove and replace concrete slabs. -5- LAW O"ICE5 SNELBAICER 81 BRENNEMAN In order for the District to fully understand CCI's claims and formulate a meaningful response to the Complaint, it is necessary for all of the above deficiencies in pleading to be corrected. B. THE CONPLAINT IS INSUFFICIENTLY SPBCIFIC WITH REGARD TO SPBCIAL DAMAGES. The specific deficiencies set forth in the foregoing section of this brief are incorporated herein by reference. Those include references to special damages which must be specifically pleaded. Pa.R.C.P. l019(f). Special damages are those which arise from the special circumstances of a case. Gooclrich-Amran 2d. S l019(f):6. As this action represents unique circumstances, the alleged damages are special and must be pleaded with specificity. The summary of alleged damages in paragraph 58 of the Complaint does not specifically set forth the number of hours, the number and identity of persons performing services, the amounts actually spent for utilities, office supplies and truck expense, overhead snow removal and costs to remove and replace concrete slabs. As these items are special damages, they must be set forth with specificity in the Complaint. C. CCI IS BARRED FRON SEEKING NONETARY DAMAGBS BY SECTION 8.3.3 OF THE CONTRACT. Supplemental Condition section 8.3.3 of the General Conditions of the Contract for Construction provides: No payment or compensation or claim for damages shall be made to the Contractor as compensation for -6- damages for any delays or hindrances from any cause whatsoever in the progress of the Work, notwithstanding whether such delays be avoidable or unavoidable. The Contractor's sole remedy for delays shall be an EXTENSION OF TIME ONLY, pursuant to and only in accordance with this Paragraph 8.3, such extension to be a period equivalent to the time lost, by reason of any and all of the aforesaid causes, as determined by the Architect. In consideration for this grant of a time extension, the Owner and the Architect shall not be held responsible for any loss or damage or increased costs sustained by the Contractor through any delays caused by the Owner or Architect or any other Contractor or on account of the aforesaid causes or any other cause of delay. In the event the Contractor shall choose to litigate this clause or issue and loses said litigation, the Contractor shall reimburse the Owner and the Architect for their reasonable attorney's and expert witness fees and all other costs and expenses incurred by them in the litigation. By entering into the construction contract with the District, CCI waived its rights with regard to recovery of monetary damages for delay. Waiver is the voluntary and intentional abandonment or relinquishment of a known right. Samuel Marranca General Contractinq Co. v. Amerimar, 416 Pa, Super. 45, 610 A.2d 499 (1992). The averments of the Complaint and the language of Section 8.3.3 of the contract indicate that all of the elements of waiver have been met. First, there is nothing of record that would suggest that CCI's contract with the District was not voluntary and intentional. Second, the language of 8.3.3 indicates that CCI was aware of its right to remedies other than an extension of LAw O"ICtB SNELBAKER 81 BRENNEMAN time. Third, CCI abandoned or relinquished its right to other remedies by entering into the Contract where the parties expressly exchanged an extension of time in consideration for the Owner and Architect not being held responsible for monetary -7- damages for delay. The Section even provides for payment of the Owner's attorneys' fees in the event the Contractor litigates met. this point and loses. All of the elements for waiver have been The District is Unaware of any case law interpreting the precise contract language at issue in this matter. Although some Pennsylvania cases have held that "no damages for delay" clauses were unenforceable under certain fact situations, different contract language and different factual circumstances compel a contrary result. In the case of Sheehan v. Pittsburah, 213 Pa, 133, 62 A. 642 (1905), the city failed to obtain the complete right-of-way necessary to undertake the project. The contract was based upon the assumption by both parties that the right-of- way had been properly secured so that work could begin and proceed without interruption. Under such facts, the Court held that "[nJotwithstanding the breadth of the language of the agreement that all loss or damages from unforeseen obstructions and difficulties and from delay, were to be borne by the contractors, it is clear that the delay from the city's failure to obtain complete right-of-way was not in the class of difficulties and delays which were in the minds of the parties, for the agreement was based on the assumption that the right-of- way had been secured . . " 213 Pa, at 134. LAw a"lcca SNELBAKER a BRENNEMAN In the case at bar, the Complaint does not set forth any claim which would fall into the category of being outside of the class of difficulties or delays in the minds of the parties at -8- the time the contract was entered into. Thus, the situation ~ iUdice is distinguishable from the Sheehan case and its progeny. Further distinguishing our scenario from the Sheehan case is the language of Section 8.3.3. Section 8.3.3 specifically sets forth, inter alia, that U[iJn consideration for this grant of a time extension, the Owner and the Architect shall not be held responsible for any loss or damage or increased costs sustained by the Contractor through any delays caused by the Owner or Architect or any other Contractor. . ..U An extension of time is the sole remedy provided for in Section 8.3.3. Because the clear language of Section 8.3.3 evidences the Contractor's voluntary relinquishment of a known right, CCI cannot now claim damages. Such a result would be contrary to the express language of the contract. In the Complaint, CCI seeks damages against the District based upon the acts or omissions of "other contractors". Examples are found in paragraphs 17, 21, 40 and 56 of the Complaint. CCI's request for damages against the District for the alleged acts and omissions of other contractors is clearly barred by Section 8.3.3. In the case of Henrv Shenk COmDanv v. Erie County, 319 Pa, 100, 178 A. 622 (1935), the Pennsylvania Supreme Court rejected a contractor's claim for delay damages where the contractor alleged losses due to the acts of the LAW a"ICt8 architect and other contractors. These delays found to be SNI!:LBAKER were lit BRENNEMAN within those contemplated by the clause in the contract -9- LAw O'PlCU SNILBAICER a BRENNEMAN addressing Delays and Extension of Time.. When toe reasoning employed by the Court in Shenk case is applied to the case ~ iUdice, it is clear that CCI's claims based upon the alleged acts or omissions of the Architect and other contractors cannot be sustained in light of the language contained in Section 8.3.3. Other Pennsylvania cases decided after the Henrv Shenk Co. case discussed above reached contrary results under different facts. However, cases such as GasDarini Excavatinq v. Pa, TurnDike Comm., 409 Pa, 465, 187 A.2d 157 (1963), Pa, DeDt. of Hiqhwavs V. S.J. Groves, 20 Pa, Cmwlth. 526, 343 A.2d 72 (1975) and C.J. Lanqenfelder & Son v. Pa, DeDt. of Trans., 44 Pa, Cmwlth. 585, 404 A.2d 745 (1979) are based upon fact situations distinguiShable from those in the case at bar. In the Gasoarini case, the Turnpike Commission gave the contractor a notice to proceed in June, 1955 but another contractor was then engaged in drilling and slushing on the same stretch of road. This prevented the plaintiff-contractor from working on the site until November, 1955. The Court held that a paragraph of the contract requiring cooperation with the Slushing contractor did not bar Footnote No.1: Article 18. Delays and Extension of Time. _ If the Contractor be delayed at any time in the progress of the work by any act or neglect of the Owner or the ArChitect, or of any employe of either, or by any other Contractor employed by the Owner, or by changes ordered in the work, or by strikes, lockouts, fire, unusual delay in transportation, unavoidable casualties or any causes beyond the Contractor's control, or by delay authorized by the Architect pending arbitration, or by any cause which the Architect shall decide to justify the delay, then the time of completion shall be extended for such reasonable time as the Architect may decide. 319 Pa, at 103-04 -10- LAW O"ICU SNnSAKER III BRENNEMAN Gasparini from collecting delay damages. There are no comparable averments in CCI's Complaint and Section B.3.3 is much more than a "cooperation" clause. In the S.J. Groves case, the Department of Highways was found to be liable to a contractor for the increased cost of completing a contract where the Department knew, but failed to disclose, that the contractor would not have access to a portion of the site for some 14 weeks. S.J. Groves, 343 A.2d at 75-76. As there are no averments of undisclosed conditions in CCI's Complaint, the holding of the S.J. Groves case has no application to the issues at hand. The Lanoenfelder case is also based upon facts which are materially different from those sub iudice. In Lanoenfelder, an environmental permit issue delayed the project for seven months, the redesign of a temporary street bypass delayed the project by nine months and a problem with concrete delayed the project several more months. A Board of Arbitration awarded the contractor delay damages and the Commonwealth Court affirmed. The Court refused to change the Board of Arbitration's findings of facts regarding the Department assuring concerned citizens and environmental groups that the construction activities through an environmentally sensitive marsh would be limited to the right of way. As it turned out, the Department then approved Langenfelder's plans to dump sediment outside of the right of way. As a direct result of the Department's actions, the contractor was delayed some seven months as the environmental permits were disputed. 404 A.2d at 705. There are no -11- allegations in the Complaint at bar that are remotely akin to those facts in the Lanaenfelde~ case. Thus, the hOlding of that case does not control dispOsition of CCI's claim. CCI's Complaint goes so far as to attempt to collect damages from the District due to the weather. (Complaint, paragraphs 29- 34.) Certainly weather conditions in general and snow in particular were assumptions within the minds of the parties at the time the Contract was entered into. Section 8.3.3 bars the collection of damages for such delays. See, Sheehan vL Pittsburaq, SUDr~. The claim by CCI based upon adverse weather conditions illustrates the unreasonabless of CCI in attempting to blame everyone but itself for delays encountered in the construction project at issu~. Based on the foregOing, the Complaint shoUld be dismissed as legally insufficient pursuant to Pa, R.c.p. 1028(a) (4). D. THB COHTRACT PLACBS RISPOHSIBILITY POR COORDIHATIOH OP WORK SgUARILY OH CCI AHD HOT OH THB DISTRICT. 'j the responsibility to Coordinate Work and contractors. The great, ;' LAw O""'Cts SNELBAkER a BRENNEMAN Throughout the Complaint, CCI asserts that the District had majority of CCI's claims appear to rest on this flawed premise. The Contract provides that the responsibility for Coordination of work and contractors is on the Contractor. This theme is repeated in several sections of the contract. For example, Section 3.3.1 provides: 3.3.1 The Contractor shall supervise and direct the Work, uSing the Contractor's best skill and attention. ~ Contractor shall be solelv resDonsible fo~ and have control -12- 'i-, " ,j L r I I. i; it III! l'i. , 1: I over construction means, methods, techniques, sequences and procedures and for coordinatinq all Dortions of the Work under the Contract, unless Contract Documents give other specific instructions concerning these matters. (Emphasis added. ) Section 4.23 provides, in pertin~nt part: 4.2.3 The Architect will not have control over or charge of and will not be resDonsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's resDonsibilitv as DrQ~!Qed in ParaqraDh 3.3. The Architect will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. ... These two contract provisions conclusively establish that the Contractor, CCI, has sole responsibility for "coordinating all portions of the Work" Clearly the District is not responsible for such activities under the express language of the contract. As a result, CCI has failed to state a cause of action on whjch the relief sought can be granted and the Complaint should be dismissed as being legally insufficient. IV. CONCLUSION For all of the reasons explained hereinabove, the Defendant's Preliminary Objections to Plaintiff's Complaint should be granted. Respectfully submitted, SNELBAK & BRENNEMAN, P.C. / Dated: April 5, 1996 ~~/ ar C. Snelbaker Pa, Sup. ct. I.D. #06355 44 West Main street Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Defendant Cumberland Valley School District LAW O'"cr:a SNELB~KER IIr BRENNEMAN -13- CERTIFICATE OF SERVICE I hereby certify that I am this date serving true and correct copies of the within Defendant Cumberland Valley School District's Brief in SUpport of Preliminary Objections to Plaintiff's Complaint by sending the same by first-class mail postage paid to the fOllowing persons addressed as follows: c. Grainger Bowman, Esquire Powell, Trachtman, Logan, CarrIe & Bowman, P.C. 114 North Second Street Harrisburg, PA 17101 R. Thomas MCLaughlin, Esquire Kelly, MCLaughlin & FostAr 1700 Atlantic BUilding 260 South Broad Street Philadelphia, PA 19102-5092 ard C. Snelbaker Snelbaker & Brenneman, P.C. Attorneys for Defendant CUmberland Valley School District Dated: April 5, 1996 LAw O""ICU SNELIIAICEA It BRENNEMAN ._----- .. -. - ... n_____ .. In " ~ ~ r..< '" .. .. 0.... '" c:: 'tl f:j~ t::: "'~ .,. .. " .;l ..; .. 'tl .. ::lr..i;; I-: ..-. ~~ " " '''' UJ~ 7. ,,. OJ .. ..:w..: '" ~ :.: .. '" '" ::"-H~ ~ ~~ t 1><'" .... S OJ e ~ ~ oj ~ 15ffi:r. I>< '" .... oJ " 0 '" ~ H....p.. UJE ~ S . . :I: " ::S"'t;l ;;: ~B ~ ;; ~I><el . U 0 " "'0 E 1 5 8 . '" , .... ffi '" <>: ~U ~~ ~ UJ S .H:J: III III .. UI><O n. . ~....j > i::i > .... "'H ....'" Z Cl 0 Z 'tl - i: t.. t;" p(9 2 ~ r..~"" 0 ::l 'tl ~ 0 f:: UJ~ ~ ~ c:: ~ o t>1 .... . ..: u'" w :=> HSt)Z H :; ~ H.... '-'H ~~ ~ '" U H '" <>: "'I-: <~ rJ ~~oS ~ 0 ~ 0 O~ '( !:2 <>: :<'....1>< H ~< Z o .....t; . to ~8~ ::s ~ u ..... '" 8 t; UJ 1< Z ~ :I:'" P. Z W .., 0 H r..u U i:l "'~ u <>: w'" Vl UJ ~ H '" :< ~ 't> .... '" w z 0.... U H ~ I-tUZU U '" , . . . ,. , . 01,,--; I., ./ .,,,/ ~ II' .. ~ ~ ~. . .~4~''''.\ specificity tha alleged scheduling conflicts among such subcontractors. C. In Paragraph 21, Plaintiff fails to specify the dates and extent of the alleged untimely performance of the prime sitework Contractor. D. In Paragraph 22, Plaintiff fails to specify the places and locations of the alleged design defects and dimensional errors. E. In Paragraph 2J(e) Plaintiff fails (1) to define or describe its alleged "critical path activities", and (2) to indicate the manner in which such activities were adversely impacted. F. In Paragraphs 24 and 25, Plaintiff fails to indicate with sufficient specificity the alleged "unanticipated and unreasonable increase in Project costs and time for completion." G. In Paragraph 26, Plaintiff fails to indicate (1) the alleged sequence of work which it was alleged to have broken, and (2) the work which was performed out of sequence. H. In Paragraph 27, Plaintiff fails to indicate the manner and extent to which the site Contractor LAW O'''ICl:B 5NELOAK~R & BRENNEM.\N failed to perform in a timely manner. I. In Paragraph 40(a), Plaintiff fails to identify with sufficient specificity its alleged sidewalk work in the courtyard. -2- J. In Paragraph 40(b), Plaintiff fails to identify the location(s) and manner in which the functions of the prime Plumbing contractor and prime Electrical contractor were allegedly disrupted. K. In Paragraph 40(c), Plaintiff fails to aver with sufficient specificity the "serious impact" which it allegedly sustained in its schedule. L. In Paragraph 40(d), Plaintiff fails to aver with specificity the manner and extent to which the Site contractor, Electrical contractor and Mechanical contractor were not on schedule. LAW O'''.C[B GNCLDAKt:R I!r BRENNOMN M. In Paragraph 41, Plaintiff fails to aver with specificity (1) the alleged "unrealistic construction schedules", (2) the "problems caused by the District, The Ray Group and other prime contractors", (3) the "District's unilaterally ordered milestones", (4) the alleged "disruption to the progress of CCI's contract work, and (5) the alleged "additional costs". N. In Paragraph 56, Plaintiff fails to indicate with sufficient specificity which of the enumerated alleged actions and omissions were caused by the District, The Ray Group and/or other prime contractors. o. In Paragraph 58, Plaintiff failed to indicate the dates comprising (1) the "20 weeks" in A.1, 2 and 4, (2) the "6 months" in A.3, (3) the "5 months" in -3- LAW O,,.CU SNELDAKEtl & BRENNEMAN A.5, 6, 7, 8, 9, 10, 11 and 12, and (3) the "140 calendar days" in B. P. In Paragraph 58, Plaintiff failed to state with sufficient specificity the composition of its various alleged damages including the number of hours, number and identity of persons performing services, amounts actually spent for utilities, office supplies and truck expense, overhead, snow removal and costs to remove and replace concrete slabs. 2. Defendant requires that all of the foregoing matters be made more specific in order that it may fully understand Plaintiff's claims and to make appropriate response and defense. WHEREFORE, Defendant respectfully requests your Honorable Court to strike off Plain~iff's Complaint for failure to conform to Pa, R.C.P. 1019(a) or, alternatively, order and direct Plaintiff to file a more specific Complaint to properly plead the matters raised in the foregoing objections. PRELIMINARY OBJECTION: FAILURE TO CONFORM TO RULE OF COURT PER PA, R.C.P. 1028/al/21 3. The specific deficiencies identified in Paragraphs 1.0 and 1.P above are incorporated herein by reference thereto. 4. The Complaint fails to comply with Pa, R.C.P. 1019(f) in that items of special damages have not been specifically stated. WHEREFORE, Defendant respectfully requests your Honorable -4- Court to strike off Plaintiff's Complaint for failure to conform to Pa, R.C.P. 1019(f) and enter judgment herein in favor of Defendant and against Plaintiff. PRELIMINARY OBJECTIONS: LEGAL INSUFFICIENCY (DEMURRERS) PER PA, R.C.P. 1028(al (41 A. DEMAND FOR COUNSEL FEES 5. Plaintiff demands "attorneys fees" in its Complaint. 6. The Complaint fails to set forth any legally cognizable basis for allowing attorneys fees. WHEREFORE, Defendant respectfully requests your Honorable Court to dismiss said Complaint and enter judgment in favor of Defendant and against Plaintiff. B. DEMAND FOR MONETARY DAMAGES 7. Plaintiff demands monetary damages in the amount of $265,000. S. Plaintiff is barred from seeking such damages pursuant to the contract documents which Plaintiff incorporates by reference in its Complaint. 9. Specifically, Supplementary Condition Section 8.3.3 of Article 8 of the General Conditions of the Contract for LAW O"ICI:II 6NELDAKER 8< BRENNEMAN Construction hereinafter quoted limits Plaintiff's remedy to an extension of time and contractually excludes monetary damages: No payment or compensation or claim for damages shall be made to the Contractor as compensation for damages for any delays or hindrances from any cause whatsoever in the progress of the Work, notwithstanding whether such delays be avoidable or unavoidable. The -5- Contractor's sole remedy for delays shall be an EXTENSION OF TIME ONLY, pursuant to and only in accordance with this Paragraph 8.3, such extension to be a period equivalent to the time lost, by reason of any and all of the aforesaid causes, as determined by the Architect. In consideration for this grant of a time extension, the Owner and the Architect shall not be held responsible for any loss or damage or increased costs sustained by the Contractor through any delays caused by the Owner or Architect or any other Contractor or on account of the aforesaid causes or any other cause of delay. In the event the Contractor shall choose to litigate this clause or issue and loses said litigation, the Contractor shall reimburse the Owner and the Architect for their reasonable attorney's and expert witness fees and all other costs and expenses incurred by them in the litigation. WHEREFORE, Defendant respectfully requests your Honorable Court to dismiss said Complaint and enter jUdgment in favor of Defendant and against Plaintiff. LAw Ol'I'lCC8 SNELDAKER a BRENNEMAN c. LIABILITY BASED UPON DEFENDANT'S ALLEGED RESPONSIBILITY TO COORDINATE WORK/CONTRACTORS 10. Throughout its Complaint, Plaintiff asserts that Defendant had responsibility to coordinate work and contractors and, having allegedly breached such responsibility, Defendant is allegedly liable to District for Plaintiff's alleged losses. 11. The contract documents incorporated by reference in the Complaint place responsibility of coordination on the contractors, specifically Plaintiff in context of this case, and not Defendant. Therefore, Plaintiff's Complaint fails to state a cause of action on which the relief sought can be granted when based upon Defendant's non-existent responsibility. WHEREFORE, Defendant respectfully requests your Honorable -6- CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of Defendant's Preliminary Objections to Plaintiff's Complaint by sending the same by United States first-class mail postage paid to the Plaintiff's attorneys addressed as follows: C. Grainger Bowman, Esquire David W. Francis, Esquire Michael W. Winfield, Esquire Powell, Trachtman, Logan, CarrIe & Bowman, P.C. 114 North Second street Harrisburg, PA 17101 ~ chard c. Snelbaker LBAKER & BRENNEMAN, P.C. Attorneys for Defendant Dated: February ttA , 1996 .' " ;~:~.- I"~ ~'-.:' vi" r ~; ~:,~" .~~.", ....-... t "'," ~r ?- ; :.:~~- ~i_ .I!!!!!.. .. "'.... I I '-, ~ , .. I':' -" l.,JI' (' L!' .~I' L~ - i ':'J , . ~ - . , 1.... _ . ~:.,. .- . . ~. ". - .. . - ..,-..., .... - - - ~,~ .,<-,. '-', ~..- ,', <.',f I I:. I' I , 1 ,. , , ".J ,,' (.j '>' ~ " - - III ~< ~ ,n 0..... ~ z "'< -: ~~ ..... ... f:2 ~ w~ ~ ~ . ..... c: -<: Zs ~ "'''' ~ ... ,..., '" z ..... zffi ... 0 "" ~o::i Zg :s ~ ~ c: 0 c: o ei ~ .... p: '" ..e, ~8 ~ ~ p. '" U ..... g ~. ;; d . ..:stl 0 ..... '" '" "'0 ~ ~ U '" . A p.::?;u ~~ p~ ~~::lj~ Ul !:.1 0..0 Z > .....'" '/. ~ 0 0 0 ,..., '" .. . ll!o rt. o ::>I~ ..... ~ . U ~ w6 0 ~ r>! . 0..... f-< ::> ..U UZA U ~~..... ~~ ~ ~ '" ~5iJoS,..., ~ sa . ~o~ Q 0~"'l:J< f-< [:'i ..... ~< ~ u ... ..... 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