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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).
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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".
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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.
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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.
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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
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