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

1235817
1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRIGT OF PENNSYLVANIA

LEO M. GIBBONS, ESQUIRE ATTORNEY I.D. NO. 67267 MacELREE HARVEY, LTD. 17 W. Miner Street, P.O. Box 660 West Chester, PA 19381-0660 (610)436-0100
UNITED STATES FOR THE USE AND BENEFIT OF THE TRI-M GROUP, LLC d/b/A TRI-M GROUP, a Pennsylvania Limited Liability Company 204 Gale Lane Kennett Square, PA 19348 Plaintiff
VS

ATTORNEY FOR PLAINTIFF

CIVIL ACTION

NO

OMEGA SERVICE MAINTENANCE CORPORATION, a New York Corporation 11 Evergreen Avenue Neptune City, NJ 07753 WESTCHESTER FIRE INSURANCE COMPANY, a Pennsylvania lnsurance Business Corporation 436 Walnut Street, P.O. Box 1000 Philadelphia, 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 Page 2 of 5

1235817
1

Parties

3,

Plaintiff, The Tri-M Group, LLC d/b/a Tri-M Group ("Tri-M"), is a Pennsylvania Limited

Liability Company, organized and existing under the laws of the Commonwealth of Pennsylvania, with a place of business at204 Gale Lane, Kennett Square, Chester County,

Pennsylvania 19348.

4.

Defendant, Omega Service Maintenance Corporation ("Omega"), is a New York

Corporation, organized and existing under the laws of the State of New York, with a 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 existing under the laws of the Commonwealth of Pennsylvania, with a place of business at 436 Walnut Street, P,O. Box 1000, Philadelphia, Pennsylvania 19106.

Statement of Facts

6.

ln or about November o 2011, Omega contracted with General Services Administration

("GSA") on a federal project for the Social Security Administration at 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 "Prime Contract"). Tri-M is not in possession of a copy of the Prime Contract.

7.

On or about November 9,2011, Omega obtained a Miller Act payment bond (hereinafter

the "Bond") from Westchester in the amount of $359,500.00, as required by the GSA. ln the
Bond, Westchester agreed to be bound jointly and severally with Omega to make payment to all

persons having a direct contractual relationship with Omega or to any subcontractor of Omega who furnished labor, material or both in the prosecution of the work provided for in the Prime Contract in the event that Omega failed to make prompt payment to such persons, A true and correct copy of the Bond is attached hereto, made a part hereof and marked Exhibit "4".

Case 2:13-cv-04024-MSG Document 1 Filed 07/11/13 Page 3 of 5

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.

Case 2:13-cv-04024-MSG Document 1 Filed 07/11/13 Page 4 of 5

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 TriM.

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.

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

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. 2. 3. 4.

Damages in the amount of $30,291.70 plus interest from May 16,2012; Costs of suit incurred herein; Reasonable attorney's fees; and Such other and further relief as the Court may deem just and proper.
MacEL

HARVEY, LTD.

Date:

\0

\3

By:

Leo M. Gibbons, Esqu rre Attorney for Plaintift