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Home My WebLink About07-1939POST & SCHELL, P.C. BY: THOMAS L. ISENBERG, JR. I.D. #: 76652 17 NORTH SECOND STREET 12TH FLOOR HARRISBURG, PA 17101 717-612-6000 H.M. NUNES & SONS CONSTRUCTION, INC., Plaintiff V. BARRETT COMPANY, Defendant. TO: DEFENDANT, BARRETT COMPANY ATTORNEYS FOR PLAINTIFF H.M. NUNES & SONS COSNTRUCTION, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 0 1 - 1932 CIVIL ACTION - LAW (21-v i LQ7-?-?n NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166; (800) 990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despu6s de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEQUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVIDIOS DE UN ABOGADO, ES POSIBLE QUIE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUIE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166; (800) 990-9108 POST & SCHELL, P.C. BY: THOMAS L. ISENBERG, JR. I.D. #: 76652 17 NORTH SECOND STREET 12TH FLOOR HARRISBURG, PA 17101 717-612-6000 H.M. NUNES & SONS CONSTRUCTION, INC., Plaintiff V. BARRETT COMPANY, Defendant. ATTORNEYS FOR PLAINTIFF H.M. NUNES & SONS CONNTRUCTION, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 07 - 1133 CIVIL ACTION - LAW COMPLAINT Plaintiff, H.M. Nunes & Sons Construction, Inc., by and through its counsel, Post & Schell, P.C., respectfully files this Complaint against the Barrett Company, and in support thereof, states the following: 1. Plaintiff is H.M. Nunes & Sons Construction, Inc. ("Nunes"), a Massachusetts corporation with a principal place of business located at 82 Carmelinas Circle, Ludlow, MA. 2. Defendant is Barrett Company ("Barrett") a business entity believed to be duly authorized to conduct business in the Commonwealth of Pennsylvania with a principal place of business located at 1525 Cedar Cliff Drive, Camp Hill, PA. 3. On or about October 20, 2004, Barrett, entered into a contract with Nunes, for the provision of labor, materials and equipment, and the performance of certain site, excavation and concrete work on the Hampton Inn construction project located in Battleboro, Vermont ("Project"). A true and correct copy of the contract is attached hereto and marked as Exhibit «A CPH 384265v1 4. The contract sum for which Barrett was obligated to pay Nunes totaled $62,275.00. 5. Pursuant to the contract, all site lighting and/or conduit work was excluded form the contract sum of $62,275 and, if performed Barrett would be billed by the hour for such work. 6. Nunes performed site lighting and conduit work on the Project. 7. Throughout the course of the Project, Nunes performed extra work and change order work totaling $39,047.20, the same of which included site lighting and conduit work as aforesaid. Copies of all such extra work and change orders are attached hereto and collectively marked as Exhibit "B" 8. Nunes performed all contract, extra and change order work as directed and/or required. 9. Barrett accepted this extra and change order work. 10. To date, Nunes has received a total of $62,275.00 for work performed on the Project, leaving a remaining balance of $39,047.20. COUNT I - BREACH OF CONTRACT 11. Paragraphs 1-10 are incorporated herein by reference as if set forth in full. 12. Despite repeated demands for payment of the same, Barrett has refused and failed to pay the remaining $39,047.20, the same of which is currently due and owing to Nunes. 13. Barrett's refusal and failure to pay the remaining $39,047.20 constitutes a breach of the contract. 14. As a result of Barrett's breach of contract as aforesaid, Nunes has been damaged in an amount totaling $39,047.20. 2 15. At all times material hereto, Nunes satisfactorily performed all contractual obligations and performed the same with all required good faith. WHEREFORE, H.M. Nunes & sons construction, Inc. demands judgment to be entered in its favor and against the Barrett Company in the amount of $39,047.20, together with interest, costs, attorneys' fees and any other relief this Honorable Court deems just and appropriate. COUNT II - QUANTUM MERUIT 16. Paragraphs 1 through 15 are incorporated herein by reference as if set forth in full. 17. Nunes provided labor and materials on the Project, the value of which totals $101,322.20. 18. To date, Barrett has paid a total of $62,275.00, and has failed or refused to pay the remaining balance of $39,047.20. 19. Nunes did not provide the aforementioned labor and materials gratuitously, and at all times material hereto, expected to be paid the value of the same. 20. The labor and materials provided on the Project by Nunes were knowingly and voluntarily accepted by Barrett. 21. The acceptance of the labor and materials provided by Nunes on the Project created an implied contract whereby Barrett is obligated to pay Nunes for the value of the same. 22. Despite repeated demands, Barrett has failed to pay the aforementioned $39,047.20, the same of which constitutes the reasonable value of the work and services performed and, for which Barrett remains obligated to pay. 23. The provision of the aforementioned labor and material has benefited Barrett and in the event that Barrett is not required to pay Nunes the reasonable value of the same, Barrett will have been unjustly enriched. 3 24. Nunes is entitled to recover not less than $39,047.20 in quantum meruit from Barrett. WHEREFORE, H.M. Nunes & Sons Construction, Inc. demands judgment to be entered in its favor and against the Barrett Company in the amount of $39,047.20, together with post- judgment interest, costs, and any other relief this Honorable Court deems just and appropriate. COUNT III - CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT 23. Paragraphs I through 22 are incorporated herein by reference as if set forth in full. 24. The actions and breach of contract by Barrett as aforesaid are in violation of the Pennsylvania Contractor and Subcontractor Payment Act. 25. Barrett's actions and refusal to pay the remaining balance for work performed on the Project is unjustified and constitutes bad faith. 26. As a result of Barrett's violation of the Contractor and Subcontractor Payment Act, Nunes is entitled to recover payment of the outstanding $39,047.20 together with all applicable interest, penalties and attorney fees as provided therein. WHEREFORE, H.M. Nunes & Sons Construction, Inc. demands judgment to be entered in its favor and against the Barrett Company in the amount of $39,047.20, together with interest, penalties, costs, attorney's fees and any other relief this Honorable Court deems just and appropriate POST & SCHELL, P.C. T OMAS L. ISE QUIRE PA Bar #76652 17 North Second Street, 12a' Floor Harrisburg, PA 17101 (717) 612-6000 Dated: April ?, 2007 Attorneys for Plaintiff 4 ?h,b,+ A 10/19/2004 043-2k4 - Berrctt Company, kltmlpton Inn, Brattelbor0, MA PROPOSAL H.M.Nmms & Sons Cons izuctim 1rrc. 62 Cwmaltase Circle Ludlow, MA 01056-2236 Tel(413)547-6488 Fax (413)547-0336 Propoal Plc. Dato SubmtUed ftV s 43-2k4 10/i9M4 Propoaat Subadned opt Barrett Company 1625 Cedar Cliff Dive Camp Hill, PA 17011 Worts to be Paformad at: Hampton Inn Brattleboro, VT We In it r p!T! a to paform the labor necessary for the !:!! thm of Completion of Shipping of Topsoil and Subsoll around project perimeter and re-,sing on site as fig for final grade In lawn areas $3,600.00 Wading and Compacting Imported Fill (Fill Material and Delivery by others) to bring am to subgrade. Thos includes a doter, r ler. and loader with operators, and one labor for grade control $s,aoo.o0 Install Site Concrete Curbing - Includes Excavation, grading, compacting, forming, louring, finishing and baddlIng With Concrete $34,800.00 Labor and Equipment Only $255,550.00 Installing Site and Building Concrete Sidewalks, includes excavation, grading, compacting, iomnirtg. pouring, fmishMg With Concrete $24,250.00 Labor and Equipment Only . $9250.00 instaiiing, Grading and Corrtpeotbng Stone for Pavement Base (Stone Material anti Delivery by others) This Moitades a dozer, roller, and loader with operators and one labor for grade control $6.850.00 -- Placing all topsoll to graft for jute mesh In at sloped areas (Jute Mesh vAl.enher be supplied by others or will be charged as an extra at its cost plus 10% markup) (Topsoil not included) if these areas are to be left low and covered over In mulch to be cleaned up by the landscape in the spring. then the price does not change. This is simply an option. $7,750.00 .?- If the landscape contractor does not want to Install the turf tracking pads, they will be - installed at an hourly rate. Site Layout - Includes layout of One and grade for improvements covered under tilts proposal The stipulation for this work is that It MUST have made available the full stle AUTOCAO drawings for our use. This data is Imperative Immediately to expedite the work and commence work Hourly Labor and Equipment Rates for any work listed outside of this proposal Excavator with operator (55,000 Lb.) $125.00 Hour Dozer with operator (CAT D-6 or Equal) $110.00 Hour Loader with Operator (Cat 838 or Greater) $100.00 Hour RoNAr with Operator (Cat CS 433 or Equal) $90.00 Hour Laborer with standard hand toots $55.00 Hour Additional Concrete work (Dumpster Pad, Concrete Plaza at Entrance) With Concrete $7.00 S.F. Labor and Equipment Cloy $285 S.F. <? ITE 77 V aff- C4Y)e& 1-j 6744. -V- n- 10/19/2004 13:14 FAX 1 413 547 36 H.11.NLTNES & SONS 10119/2004 043-2k4 - Barrett Company, Huwton Inn, l9rattclboro, MA TERMS Payment Is to be made within 00 days of invoicing Material Testing is not Included In this proposal Field Directives will be acknowledged by our staff' once in writing Additional work wHl be per signed slip, each slip to be signed dally ** Prides are based on Monday Through Friday Work ** Permits and Curb Cut Costs are not included, and will not be secured. They will be the responsibility of the General Contractor 4003 The above work is to be performed In accordance with the drawings and specifications submitted for die above work and completed in a workmanlike Timmer for the sum of : 6 .2 -7 5f 4a Any dtwWo ar denk0m from the abm tpocMcndOm Wv*Mq estrr txtf4 wN be tncaute4 Ooly npoa wtitlpt order. mtd ted11 btrxnaa = amt dwW0vW da above pdsrWw AA ngramW.W aoashtgtmt YpenWoos.060dom,GravOd 'tbayoMmr000rVL Orvasw WV ftIm ada.wdnAyadarDsMoyinow%W6aworb. AWkvwt Compemabo ad rubBc L WAy i dutmue tm the above vwk rrta be nahat owt by: KM.Nunes & Sons ComL Inc. ReypOptinlly submhted on: 1 WI W04 Per. Annul Ntmaa NOW This PtopprlJ may be withdrawo if rw t W?Wd wfthin. days. ACCEPTANCE OF PROPOSAL The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified Payments to be made as ouflined all?vo. } Signed : oate: Signed •?? i r Exhib',+f3 H.M.Nunes & Sons ?,onst.Co.,lnc. 82 Carmelinas Circle Ludlow, MA 01056 Bill To Barrett Company 1525 Cedar Cliff Drive Camp Hill, PA 17011 Invoice Date Invoice # 11/23/2004 2004-63 P.O. No. Terms Project 295 - Hampton Inn, Brattelb... Quantity Description Rate Amount 1 L.S. - Completion of Stripping of Topsoil and Subsoil around project perimeter 3,600.00 3,600.00 1 L.S. - Grading and compacting Imported Fill (Fill Material and Delivery by Others) to 9,600.00 9,600.00 bring site to subgrade I L.S. - Concrete Curbing - Excavate, form, pour, finish 25,550.00 25,550.00 1 L.S. - Site Concrete - place gravel, grade, form, pour, finish 9,250.00 9,250.00 1 L.S. - Site Grading and Compacting of stone for pavement base ( Material and Delivery 8,850.00 8,850.00 by Others) to rough grade - to be fine graded by others I Placing of Topsoil to Grade 5,425.00 5,425.00 1 L.S. - Change Order # 01 (Breakdown Attached) 657.53 657.53 1 L.S. - Change Order # 02 (Breakdown Attached) 884.40 884.40 1 L.S. - Change Order # 03 (Breakdown Attached) 68.75 68.75 1 L.S. - Change Order # 04 (Breakdown Attached) 2,798.40 2,798.40 1 L.S. - Change Order # 05 (Breakdown Attached) 34,482.48 34,482.48 1 L.S. - Change Order # 06 (Breakdown Attached) 155.64 155.64 Total $101,322.20 H.M. Nunes & Sons Construction 82 Carmelinas Circle Ludlow, MA 01056 Tel. (413) 547-6488 Fax. (413) 547-0336 TO Barrett Company 1525 Cedar Cliff Drive Camp Hill, PA 1701'1 9NL%H9M @121MER Number 295-01 DATE: 10/2212004 JOB NAMEILOCATION Hampton Inn Route 5 Brattelboro, VT JOB NUMBER EXISTING CONTRACT NO. DATE OF EXISTING CONTRACT 295 10/20/2004 Ne hereby agree to make the changes specified below: 3 Hour Foreman $ 76.50 Hr. $229,50 3 Hour Operator $ 68.75 Hr. $206.25 3 Hour Cat 95OG Loader $ 54.00 Hr. $162.00 Subtotal $597.75 10% Overhead & Profit $59.78 This Change Order is for work performed on October 22, 2004 . performing a general cleanup of site materials left in the way of performing the work we were hired to do. Examples are moving sewer brick, moving manhole frames and covers, clearing trees and moving old light poles. NOTE : this Change Order becomes part of and In conformance vrith the existing contract We hereby agree to make the changes specicied above at this rice $657.53 DATE PREVIOUS CONTRACT AMOUNT $62 275 00 10/22/04 . , AUTHORIZED SIGNATURE (CONTRACTOR): REVISED CONTRACT AMOUNT $62,932.53 Accepted - The above prices and specifications of this Date of Acceptance Change Order are satisfactory and are hereby accepted. All work to be performed under same terms and conditions Signature as specified in original contract unless otherwise stipulated (Owner) H.M. Nunes & Sons Construction 82 Carmelinas Circle Ludlow, MA 01056 Tel. (413) 547-6488 Fax. (413) 547-0336 TO Barrett Company 1525 Cedar Cliff Drive Camp Hill, PA 17011 @M%mam @[RDE2 Number 295-02 DATE: 10125/2004 JOB NAME&OCATION Hampton Inn Route 5 Brattelboro, VT JOB NUMBER EXISTING CONTRACT NO. DATE OF EXISTING CONTRACT 295 10/20/2004 Me hereby agree to make the changes specified below: 4 Hour Foreman / Operator - $ 76.50 Hr. $306.00 8 Hour 2 Labors @ 4 Hours Each $ 62.25 Hr. ,$498.00 Subtotal $804.00 10% Overhead & Profit $80.40 This Change Order is for lost time due to lack of materials and layout NOTE : this Change Order becomes part of and In conformance with the existing contract We hereby agree to make the change(s) s ecicied above at this rice $884.40 DATE : PREVIOUS CONTRACT AMOUNT $62 932.53 10/25M4 , AUTHORIZED SIGNATURE (CONTRACTOR): REVISED CONTRACT AMOUNT $63,816.93 Accepted - The above prices and specifications of this Date of Acceptance Change Order are satisfactory and are hereby accepted. All work to be performed under same terms and conditions Signature as specified in original contract unless otherwise stipulated (Owner) H.M. Nunes & Sons Construction 82 Carmelinas Circle Ludlow, MA 01056 Tel. (413) 547-6488 Fax. (413) 547-0336 TO Barrett Company 1525 Cedar Cliff Drive Camp Hill, PA 17011 9HL%H@M @RKM Number 295-03 DATE: 10/29/2004 JOB NAMEILOCATION Hampton Inn Route 5 Brattelboro, VT JOB NUMBER EXISTING CONTRACT NO. DATE OF EXISTING CONTRACT 295 10/20/2004 We hereby agree to make the changes specified below: -25 Gal Fuel Oil for Old Utility Contractor $ 2.50 Ga. $62.50 Subtotal $62.50 10% Overhead & Profit $6.25 This Change Order is for fuel delivered to the utility contractor on October 29, 2004. NOTE : this Change Order becomes part of and in conformance with the existing contract We hereby agree to make the change(s) s ecicied above at this rice $68.75 DATE : PREVIOUS CONTRACT AMOUNT $63 816.93 '10/29104 , AUTHORIZED SIGNATURE (CONTRACTOR): REVISED CONTRACT AMOUNT $63,885.68 Accepted - The above prices and specifications of this Dale of Acceptance e Order are satisfactory and are hereby accepted. Chan g All work to be performed under same terms and conditions Signature as saecified in original contract unless otherwise stipulated (Owner) H.M. Nunes & Sons Construction 82 Carmelinas Circle Ludlow, MA 01056 Tel. (413) 547-6488 Fax. (413) 547-0336 TO Barrett Company 1525 Cedar Cliff Drive Camp Hill, PA 17011 9HL%H9[E @00[En Ali imhar 295-04 DATE: 11/11/2004 JOB NAMEILOCATION Hampton Inn Route 5 Brattelboro, VT JOB NUMBER EXISTING CONTRACT NO. DATE OF EXISTING CONTRACT 295 10/20/2004 We hereby agree to make the changes specified below: 28 L.F. Concrete Curbing Damaged by Fork Truck 1 Ea. Light Pole Base Removed and Reset to accommodate Handicap Width Requirements of Walk at Building 5 Ea. Curb Cuts to Accommodate Concrete Handicap Ramps (Not shown on plans) Subtotal 10% Overhead & Profit This Change Order is for Full Package for Site Lighting excluding conduit or its installation, and excluding all materials $ 16.75 L.F.4' $469.00 $ 400.00 Ea. $400.00 $ 335.00 Ea. $1,675.00 $2,544.00 $254.40 NOTE : this Change order becomes part of and In conformance with the existing contract We hereby agree to make the change(s) s ecicied above at this rice $2,798.40 DATE: 11/1`1/04 PREVIOUS CONTRACT AMOUNT $63,885.68 AUTHORIZED SIGNATURE (CONTRACTOR): REVISED CONTRACT AMOUNT $66,684.08 Accepted - The above prices and specifications of this Change Order are satisfactory and are hereby accepted. All work to be performed under same terms and conditions as specified in original contract unless otherwise stipulated (Owner) H.M. Nunes & Sons Construction 82 Carmelinas Circle Ludlow, MA 01056 Tel. (413) 547-6488 Fax. (413) 547-0336 TO Barrett Company 1525 Cedar Cliff Drive Camp Hill, PA 17011 hereby agree to make the changes specified below: @M%mgM @E101912 Al"mhnr 295-05 DATE: 11/2312004 JOB NAME&OCATION Hampton Inn Route 5 Brattelboro, VT JOB NUMBER EXISTING CONTRACT NO. DATE OF EXISTING CONTRACT 295 10/20/2004 5 Days Conduit Work - Cost Breakdown Attached 7 Days Light Pole Base Installation - Cost Breakdown Attached NOTE : Ihis Change Order becomes part of and in conformance with the existing contrad We hereby agree to make the change(s) s ecicied above at this rice PREVIOUS CONTRACT AMOUNT 11/23/04 ORIZED SIGNATURE (CONTRACTOR): REVISED CONTRACT AMOUNT Accepted - The above prices and specifications of this Change order are satisfactory and are hereby accepted. All work to be performed under same terms and conditions as specified in original contract unless otherwise stipulated (Owner) $ 3,142.20 Day $15,711.00 $ 2,681.64 Day $18,771.48 $101,166.56 I H.M. Nunes & Sons Construction 82 Carmelinas Circle Ludlow, MA 01056 Tel. (413) 547-6488 Fax. (413) 547-0336 TO Barrett Company 1525 Cedar Cliff Drive Camp Hill, PA 17011 hereby agree to make the changes specified below: 1 L.S. Mateirals Purchased for Barrett Co. Invoice is Attached 9D1%H9[9 @R01912 Number 295-06 DATE: 11/23/2004 JOB NAMFAOCATION Hampton Inn Route 5 Brattelboro, VT JOB NUMBER EXISTING CONTRACT NO. DATE OF EXISTING CONTRACT 295 10/20/2004 Subtotal 10% Overhead & Profit This Change Order is for Full Package for Site Lighting excluding conduit or its installation, and excluding all materials NOTE : this Change Order becomes part of and in conformance with the existing contract ----------------- We hereb agree to make the chan e s s ecicied above at this rice )ATE : PREVIOUS CONTRACT AMOUNT 11/1231104 AUTHORIZED SIGNATURE (CONTRACTOR): REVISED CONTRACT AMOUNT Date N Acceptance Accepted - The above prices and specifications of this Change Order are satisfactory and are hereby accepted. Signature All work to be performed under same terms and conditions as specified in original contract unless otherwise stipulated (Owner) $141 $141.49 $141.49 $14.15 55.64 $101,322.20 D C ? rJ -? _Z7 T r? rn Paige Macdonald-Matthes, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA H.M. NUNES & SONS CONSTRUCTION, INC., : Plaintiffs CIVIL ACTION V. NO. 07-1939 CIVIL TERM BARRETT COMPANY, CIVIL ACTION-LAW Defendant NOTICE TO PLEAD To: H.M. Nunes & Sons Construction, Inc. c/o Thomas L. Isenberg, Esquire POST & SCHELL, P.C. 17 North Second Street, 12`h Floor Harrisburg, PA 17101 You are hereby notified to file a written response to the enclosed New Matter to Plaintiff's Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Date: May 17, 2007 Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 9 Paige Macdonald-Matthes, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA H.M. NUNES & SONS CONSTRUCTION, INC., : Plaintiffs CIVIL ACTION V. NO. 07-1939 CIVIL TERM BARRETT COMPANY, CIVIL ACTION-LAW Defendant DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT, TOGETHER WITH NEW MATTER AND NOW, comes Defendant, Barrett Company (hereinafter "Barrett"), by and through its counsel, Serratelli, Schiffman, Brown & Calhoon, P.C., and files its Answer, Together with New Matter to Plaintiff's Complaint, and in support thereof aver as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. The contract is a written document, unambiguous and clear on its face and therefore speaks for itself. 5. Denied. The contract is a written document, unambiguous and clear on its face and therefore speaks for itself. 6. Denied. It is denied that "Nunes performed site lighting and conduit work on the Project." 7. Admitted in part and denied in part. It is admitted that Plaintiff has attached unsigned change orders to its Complaint as Exhibit "B." It is denied that "throughout the course of the Project, Nunes performed extra work and change order work totaling $39,047.20, the same of which included site lighting and conduit work," and strict proof of the same is demanded at the time of trial. By way of further reply, none of the change orders attached to Plaintiff's Complaint as Exhibit "B" are signed. 8. Denied. It is denied that "Nunes performed all contract, extra and change order work as directed and/or required." 9. Denied. It is denied that Barrett "accepted this extra and change order work." To the contrary, Barrett did not sign any of the change order attached to Plaintiff's Complaint as Exhibit "B." 10. Admitted in part and denied in part. It is admitted that Barrett paid Nunes the sum of $62,275.00 for work performed on the Project. It is denied that there is a balance of $39,047.20 still outstanding. COUNT I- BREACH OF CONTRACT 11. The answers set forth in paragraphs 1 through 10 are incorporated by reference as if more fully set forth at length herein. 12. Admitted in part and denied in part. It is admitted that Barrett has not paid Plaintiff "the remaining $39,047.29." It is denied that Barrett owes Plaintiff the "remaining" sum of $39,047.20. 2 13. Denied. The averments set forth in paragraph 13 of Plaintiff's Complaint state conclusions of law to which no response is required. In the event that it is later judicially determined that an answer is so required, it is denied that Barrett owes Plaintiff the sum of $39,047.20. 14. Denied. It is denied that Barrett breached the contract. Barrett is without knowledge sufficient to form a belief as to the balance of the averments set forth in paragraph 14 of Plaintiff's Complaint and strict proof of the same, if relevant, is demanded at the time of trial. 15. Denied. It is denied that "at all times material hereto, Nunes satisfactorily performed all contractual obligations and performed the same with all required good faith." WHEREFORE, Defendant, Barrett Company, respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, dismiss Plaintiff Complaint and further award Defendant all such other relief as is proper and just. COUNT II- QUANTUM MERUIT 16. The answers set forth in paragraphs 1 through 15 are incorporated by reference as if more fully set forth at length herein Admitted. 17. Barrett is without knowledge sufficient to form a belief as to the truth of the averments set forth in paragraph 17 of Plaintiff's Complaint and strict proof of the same, if relevant, is demanded at the time of trial. 18. Admitted in part and denied in part. . It is admitted that Barrett has not paid "the remaining $39,047.29." It is denied that Barrett owes Nunes the "remaining" sum of $39,047.20. 3 19. Barrett is without knowledge sufficient to form a belief as to the truth of the matters averred in paragraph 19 of Plaintiff's Complaint and strict proof of the same, if relevant, is demanded at the time of trial. 20. Barrett is without knowledge sufficient to form a belief as to the truth of the matters averred in paragraph 20 of Plaintiff's Complaint and strict proof of the same, if relevant, is demanded at the time of trial. 21. Denied. The averments set forth in paragraph 21 of Plaintiff's Complaint state conclusions of law to which no response is required. 22. Admitted in part and denied in part. It is admitted that Barrett has not paid Plaintiff the sum of $39,047.20. It is denied that Barrett owes Plaintiff the sum of $39,047.20. The balance of the averments set forth in paragraph 22 of Plaintiff's Complaint state conclusions of law to which no response is required. 23. Denied. The averments set forth in paragraph 23 of Plaintiff's Complaint state conclusions of law to which no response is required. 24. Denied. The averments set forth in paragraph 24 of Plaintiff's Complaint state conclusions of law to which no response is required. WHEREFORE, Defendant, Barrett Company, respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, dismiss Plaintiff Complaint and further award Defendant all such other relief as is proper and just. COUNT III- CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT 25. The answers set forth in paragraphs 1 through 23 [sic]' are incorporated by reference as if more fully set forth at length herein Admitted. ' Plaintiff has improperly numbered the paragraphs in its Complaint. Paragraph 23 of Plaintiff's Complaint should be properly numbered paragraph 25. 4 26. Denied. The averments set forth in paragraph 24 [sic] of Plaintiff's Complaint state conclusions of law to which no response is required. 27. Denied. The averments set forth in paragraph 25 [sic] of Plaintiff's Complaint state conclusions of law to which no response is required. 28. Denied. The averments set forth in paragraph 28 [sic] of Plaintiff's Complaint state conclusions of law to which no response is required. In the event that it is later judicially determined that an answer is so required, it is denied that Barrett owes Plaintiff any money. WHEREFORE, Defendant, Barrett Company, respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, dismiss Plaintiff Complaint and further award Defendant all such other relief as is proper and just. NEW MATTER 29. The answers set forth in paragraphs 1 through 28 are incorporated by reference as if more fully set forth at length herein. 30. The change orders attached to Plaintiff's Complaint as Exhibit "B" are not signed by the Defendant Contractor, Barrett. 31. Barrett did not authorize and/or approve of the work set forth in the Change Orders attached to Plaintiff s Complaint as Exhibit "B". 32. Plaintiff did not perform in accordance with the terms and conditions of the parties' October 20, 2004 Contract. 33. Plaintiffs claims are barred under the doctrine of accord and satisfaction. 34. Plainiiff s claims are barred under the doctrine of assumption of risk. 5 35. Plaintiff's claims are barred by the parol evidence rule. 36. Plaintiff's injuries and losses, if any, were caused by Plaintiff's own actions or by Plaintiff's own failure to act. 37. Plaintiff's claims are barred and/or limited by contributory negligence. 38. Plaintiff's claims are barred by assumption of risk. 39. Plaintiff's claims are barred under the doctrine of equitable estoppel. 40. Plaintiff's equitable claims are barred under the doctrine of "unclean hands." 41. Plaintiff's claims are barred under the doctrine of laches. 42. Plaintiff's claims are barred by the statute of limitations. 43. The damages claimed by Plaintiff bear no cause or relationship to any act or alleged failure to act on the part of Defendant. 44. Plaintiff's alleged injuries and/or losses, if any, were caused by actions or events outside of the Defendant's control. 45. Plaintiff has failed to state a cause of action against Defendant for which relief may be granted. WHEREFORE, Defendant, Barrett Company respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, dismiss Plaintiff's Complaint with prejudice, and further award Defendant all such other relief as is proper and just. Respectfully submitted, Date: May 17, 2007 Paige Macdonald-Matthes, Esquire Pa. Attorney I.D. No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 6 Harrisburg, PA 17110 (717) 540-9170 MAY. 14, 2007 4: 03PM S. S. B. & C. Hbg, Pa. 17110 M 7348 P. 11 VERWICAMN 1, Michael Barrett, verify that the statements made in the foregoing Answer, Tower with New Matter to Plaintiffls Complaint are true and correct. 1 understand that false statements herein are made subject to the pe=dties of 18 Pa, C.S. Section 4904, relating to unworn falsification to authorities. Date, 6. [? . a 1 Michael Barrett 10 CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, do hereby certify that on this 17`n day of May, 2007, I served a copy of Defendant's Answer, Together with New Matter to Plaintiff's Complaint via United States Mail, First Class, postage pre-paid, to the following person(s): Thomas L. Isenberg, Jr., Esquire POST & SCHELL, P.C. 17 North Second Street, 12'" Floor Harrisburg, PA 17101 Paige Macdonald-Matthes, Esquire 8 f _ ;?rrz t 0 7 POST & SCHELL, P.C. BY: THOMAS L. ISENBERG, JR. I.D. #: 76652 17 NORTH SECOND STREET 12TH FLOOR HARRISBURG, PA 17101 717-612-6000 H.M. NUNES & SONS CONSTRUCTION, INC., Plaintiff V. BARRETT COMPANY, Defendant. ATTORNEYS FOR PLAINTIFF H.M. NUNES & SONS CONNTRUCTION, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 07-1939 CIVIL ACTION - LAW PLAINTIFF'S REPLY TO NEW MATTER 29. Denied. No response is deemed necessary inasmuch as Paragraph 29 of Defendant's New Matter fails to contain any allegations of fact. 30. Denied. The allegations contained within Paragraph 30 of Defendant's New Matter relate to, or reference, the terms, conditions and contents of a document, the same of which speaks for itself. 31. Denied. It is denied that Defendant did not authorize and/or approve of the work set forth in the change orders attached to Plaintiff's Complaint as Exhibit "B." By way of further answer, the work was directed by Defendant and accepted by Defendant, and Defendant has received the benefit of the same. 32. The allegations contained within Paragraph 32 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. P 33. The allegations contained within Paragraph 33 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. 34. The allegations contained within Paragraph 34 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. 35. The allegations contained within Paragraph 35 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. 36. The allegations contained within Paragraph 36 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. 37. The allegations contained within Paragraph 37 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. 38. The allegations contained within Paragraph 38 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. 39. The allegations contained within Paragraph 39 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. r 40. The allegations contained within Paragraph 40 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. 41. The allegations contained within Paragraph 41 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. 42. The allegations contained within Paragraph 42 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. 43. The allegations contained within Paragraph 43 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. 44. The allegations contained within Paragraph 44 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. 45. The allegations contained within Paragraph 45 of Defendant's New Matter are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Plaintiff specifically denies the same. WHEREFORE, Plaintiff H.M. Nunes & Sons Construction, Inc. demands judgment to be entered in its favor and against the Defendant, Barrett Company in the amount of $39,047.20, together with interest, penalties, costs, attorney's fees and any other relief this Honorable Court deems just and appropriate POST & SCHELL, P.C. HOMAS , ESQUIRE Attorney I.D. #76652 17 North Second Street 12a` Floor Harrisburg, PA 17101 (717) 612-6035 Dated: Maya/ , 2007 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Thomas L. Isenberg, Jr., Esquire, an attorney of the law firm of Post & Schell, P.C., do hereby certify that on the date set forth below, I did cause to be served a true and correct copy of the foregoing document upon the following persons at the following addresses indicated below by sending same in the United States mail, first-class, postage prepaid: Paige Macdonald-Matthes, Esquire Serratelli, Schiffman, Brown & Calhoon 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 0 21 Date: May,;, 2007 POST & SCHELL, P.C. :-' h 77' ? s=- t_ ? 4 SHERIFF'S RETURN - REGULAR CASE NO: 2007-01939 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND H M NUNES & SONS CONSTRUCTION VS BARRETT COMPANY STEPHEN BENDER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BARRETT COMPANY the DEFENDANT , at 1340:00 HOURS, on the 17th day of April 2007 at 429 S 18TH STREET CAMP HILL, PA 17011 by handing to KAREN LOOSE, OFFICE MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 15.36 Postage .39 Surcharge 10.00 5f Z?lb7 ( .00 f 43.75 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 04/18/2007 POST & SCHELL By. De ty Sheriff A. D. POST & SCHELL, P.C. BY: THOMAS L. ISENBERG, JR. I.D. #: 76652 ATTORNEYS FOR PLAINTIFF H.M. NUNES & SONS COSNTRUCTION, INC. 17 NORTH SECOND STREET 12TH FLOOR HARRISBURG, PA 17101 717-612-6000 H.M. NUNES & SONS CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO: 07-1939 CIVIL ACTION - LAW BARRETT COMPANY, Defendant. PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly mark the above-captioned matter as settled and discontinued with prejudice. POST & SCHELL, P.C. T MAS L. ISE G JR., QUIRE Attorney I.D. #76652 17 North Second Street 12'b Floor Harrisburg, PA 17101 (717) 612-6035 Dated: December 14, 2007 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Thomas L. Isenberg, Jr., Esquire, an attorney of the law firm of Post & Schell, P.C., do hereby certify that on the date set forth below, I did cause to be served a true and correct copy of the foregoing document upon the following persons at the following addresses indicated below by sending same in the United States mail, first-class, postage prepaid: Paige Macdonald-Matthes, Esquire Serratelli, Schiffman, Brown & Calhoon 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 POST & SCHELL, P.C. omas L. Isenber , uir Date: December 14, 2007 C "T co Cz)