the tri-m group, llc v. omega service maintenance corporation et al complaint

7/27/2019 THE TRI-M GROUP, LLC v. OMEGA SERVICE MAINTENANCE CORPORATION et al Complaint

http://slidepdf.com/reader/full/the-tri-m-group-llc-v-omega-service-maintenance-corporation-et-al-complaint 1/5

1235817 1

LEO M. GIBBONS, ESQUIREATTORNEY I.D. NO. 67267MacELREE HARVEY, LTD.17 W. Miner Street, P.O. Box 660West Chester, PA 19381-0660(610)436-0100

UNITED STATES FOR THE USE ANDBENEFIT OF THE TRI-M GROUP, LLC d/b/ATRI-M GROUP, a Pennsylvania LimitedLiability Company

204 Gale LaneKennett Square, PA 19348

Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRIGT OF PENNSYLVANIA

ATTORNEY FOR PLAINTIFF

CIVIL ACTION

NO

VS

OMEGA SERVICE MAINTENANCECORPORATION, a New York Corporation

11 Evergreen AvenueNeptune City, NJ 07753

WESTCHESTER FIRE INSURANCE COMPANY,a Pennsylvania lnsurance Business Corporation

436 Walnut Street, P.O. Box 1000Philadelphia, PA 19106

Defendants

COMPLAINT

Jurisdiction

1. This Court has subject matter jurisdiction pursuant to 28 U.S.C. S1331 and the

provisions of the Miller Act, 40 U.S.C. S3133(bX3)(B). The Court has pendent jurisdiction and

supplementaljurisdiction over the state law claims alleged in this Complaint pursuant to 28

u.s.c. s1367.

Venue

2. The contract at issue was to be performed and executed in Philadelphia County,

Pennsylvania. Venue therefore lies in the United States District Court for the Eastern District of

Pennsylvania pursuant to 40 U,S.C. S3133(bX3)(B) and 28 U.S.C. S1391(bX2).

Case 2:13-cv-04024-MSG Document 1 Filed 07/11/13 of 5



1235817 1

Parties

3, Plaintiff, TheTri-M Group,LLC d/b/aTri-MGroup ("Tri-M"),is a Pennsylvania Limited

LiabilityCompany, organized and existingunder the laws ofthe Commonwealthof

Pennsylvania, witha place of business at204 Gale Lane, Kennett Square,Chester County,

Pennsylvania19348.

4. Defendant,Omega ServiceMaintenance Corporation("Omega"),is a NewYork

Corporation,organized and existingunder the laws ofthe State of NewYork, witha place of

business at 11 Evergreen Avenue, Neptune City,New Jersey 07753.

5. Defendant, Westchester Fire lnsurance Company("Westchester''), is a Pennsylvania

lnsurance Business Corporation,organized and existingunder the laws ofthe Commonwealth

of Pennsylvania, with aplace of business at 436 WalnutStreet, P,O. Box1000, Philadelphia,

Pennsylvania 19106.

Statement of Facts

6. ln or about NovemberoÍ 2011, Omega contracted with GeneralServices Administration

("GSA")on a federal project for the Social Security Administrationat 300 Spring Garden Street,

Philadelphia,Pennsylvania 19123, project no. GS-PO3-12-AZ-5006,pursuant to contract no.

GS-03P-1 1-AZ-D-0713(hereinafter the "PrimeContract").Tri-Mis not inpossession of a copy

of the Prime Contract.

7. On or about November 9,2011, Omega obtained a MillerActpayment bond (hereinafter

the "Bond")fromWestchester in the amount of $359,500.00,as requiredby the GSA. ln the

Bond, Westchester agreed to be bound jointlyand severally withOmega to make payment to all

persons having a directcontractualrelationshipwithOmega or to any subcontractorof Omega

who furnishedlabor, materialor bothin the prosecutionof the workprovided for in the Prime

Contract in the event that Omega failed to make prompt payment to such persons, A true and

correctcopy of the Bond is attached hereto, made a part hereof and marked Exhibit"4".




1235817 1

8. On or about December 2,2011, Omega contracted with Tri-M (hereinafter the

"Subcontract") to furnish labor, services, materials, and equipment required to complete work for

Omega which Omega had agreed to provide pursuant to the Prime Contract. A true and correct

copy of the Subcontract is attached hereto, made a part hereof and marked Exhibit "8",

9. Omega agreed to pay Tri-M within thirty (30) days after completion of the work and Tri-

M's request for payment. Tri-M is entitled to recover interest on any overdue payment and the

contract further entitles the prevailing party to an award of its reasonable attorney's fees.

10. Tri-M completed its work on July 13,2012, all of which work was furnished in the

prosecution of the work provided in the Prime Contract and specifications. A true and correct

copy of Tri-M's job history report is attached hereto, made a part hereof and marked Exhibit "C".

1 1. Omega failed to pay Tri-M $30,291.70 due under the Subcontract within thirty (30) days

of Tri-M's final invoice, dated April 1 6, 2012, and more than ninety (90) days have passed since

Omega's failure to pay. A true and correct copy of Tri-M's application for payments and detailed

accounts receivable are attached hereto, made a part hereof and marked Exhibit "D".

First Claim

(Breach of Contract - Tri-M vs. Omega)

12. Tri-M repeats and realleges paragraph 1 through 1 1 above as though fully set forth in

this claim.

13. Tri-M has performed all of its obligations under the Subcontract.

14, Omega has breached the Subcontract in that it has failed and refused to pay Tri-M in full

for the labor, services, materials, and equipment furnished in the prosecution of the work

provided for in the Prime Contract and pursuant to the Subcontract.

15. Tri-M has suffered damages as a direct and proximate result of Omega's breach of

contract.




1235817 1

Second Claim

(Quantum Meruit - Tri-M vs. Omega)

16, Tri-M repeats and realleges paragraph 1 through 15 above as though fully set forth in

this claim.

17. Tri-M provided valuable labor, services, materials and equipment that were necessary

for Omega to perform and complete its obligations under the Prime Contract.

18. Omega benefitted from Tri-M's labor, services, materials and equipment, including but

not limited to the fact that Omega could not have fully performed and completed its obligations

under the Prime Contract in the absence of the labor, services, materials and equipment that

Tri-M provided.

19. Omega has failed and refused to pay Tri-M for the labor, services, materials and

equipment referenced herein.

20. Tri-M has suffered damages and Omega has been unjustly enriched as a result of

Omega's failure to pay plaintiff for the labor, services, materials and equipment provided by Tri-

M.

Third Glaim

(Miller Act Payment Bond - Tri-M vs. Westchester)

21. Tri-M repeats and realleges paragraph 1 through 20 above as though fully set forth in

this claim.

22. Westchester is obligated, pursuant to the Bond, to pay Tri-M for the labor, services,

materials and equipment it furnished in the prosecution of the work provided for in the Prime

Contract and Subcontract, and for which Omega failed to make payment.

23. Westchester has failed to fulfill its obligations under the Bond to pay plaintiff for labor,

services, materials and equipment furnished in the prosecution of the work provided for in the

Prime Contract and the Subcontract, and for which Omega failed to make payment.




1235817 1

24.Tn-M is entitled to payment from Westchester pursuant to the Miller Act, 40 U.S.C.

s31 33.

Praver for Relief

WHEREFORE, plaintiff prays for:

1. Damages in the amount of $30,291.70 plus interest from May 16,2012;

2. Costs of suit incurred herein;

3. Reasonable attorney's fees; and

4. Such other and further relief as the Court may deem just and proper.

MacEL HARVEY, LTD.

Date: 1 \0 \3 By:Leo M. Gibbons, Esqu rreAttorney for Plaintift


the tri-m group, llc v. omega service maintenance corporation et al complaint

Documents