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Home My WebLink About07-7066IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DO-ALL DRYWALL, INC., : a7' 70Io1? C???l T?'M Plaintiff NO. 2007-CV- v. CIVIL ACTION - LAW BARRETT COMPANY, INC., Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the foregoing 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensacion reclamados por el Demandante. LISTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABODAGO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108] IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DO-ALL DRYWALL, INC., Plaintiff NO. 2007-CV- '?- 7o G V. CIVIL ACTION - LAW BARRETT COMPANY, INC., Defendant NOW COMES, Plaintiff, Do-All Drywall, Inc., by and through its counsel, Law Offices of Craig A. Diehl, and files this Complaint averring as follows: 1. Plaintiff, Do-All Drywall, Inc., is a Connecticut corporation with its business address at 9 Laughlin Road, Enfield, CT 06082. 2. Defendant, Barrett Company, Inc., is a Pennsylvania corporation with its last known business address at 429 South 18th Street, Camp Hill, PA 17011-5902. 3. Defendant employed Plaintiff on a time and material basis to provide framing, sheetrock and taping for the Hampton Inn, Bennington, Vermont project. 4. Plaintiff provided periodic statements to Defendant itemizing amounts owed and payments received. 5. At the present time, Defendant owes to Plaintiff the sum of Eighty- One Thousand Two Hundred Fifty-Seven Dollars and 78/100 ($81,257.78). See Exhibit A for a true and correct copy of the amount owed. 6. Plaintiffs work was done with quality workmanship and the prices charged were reasonable for the type of services and materials provided. 7. Despite demands for payment, Defendant has refused to pay Plaintiff the outstanding balance owed. WHEREFORE, Plaintiff respectfully requests this Honorable Court to award judgment in its favor and against Defendant for $81,257.78 plus attorney fees and costs. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Date: b-? /P By. C'4?w a, r."-d Craig ,J. Diehl, squire Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: 717-763-7613 Fax: 717-763-8293 Counsel for Plaintiff 2 NOV. 1. 2001 9:53AM CRAIG A DIEHL ESO. NO. 7789 P. 2 VERIFICATION I, LAURA COURNOYER, PRESIDENT, DO-ALL DRYWALL, INC., Plaintiff above-named, being duly sworn ac carding to law, deposes that the faC.ts set forth In the foregoing COMPLAINT are true, as he verily believes. Date: J(l15437 Z'd 09BL-SVL-098 '9URA COURNOYER •oui `iiemR-jQ iid-oa WdTO=Z LOOZ ST AOW EXHIBIT A Statement Do-,Alt Dry-wall, Inc. 9 Laughlin Rd. Enfield, CT 06092 O: Banvtt Company, Inc. 429 South 181h St. Camp Hill PA 17011 Attn: Michael 13arratt Amount Due Amount Ena SBIX7.78 Date Transaction Amount Balance 12/3112004 Balance forward 0.00 Hampton Inn,73en- 05M/2005 INV ##1Hamp. 9,939.00 9,939.00 06/0912005 IN'V 1I02hamp. 9,995.00 19,934.00 06/09/2005 INV "Mamp. 9,217.50 29,151.50 06/28/2005 PMT#10086127.#1,2,3, -29,151.50 0.00 07/19/2003 INV ##Stwup. 37,147.10 37,147.10 072642005 INV ##ftownp. 58,583.05 95,730.15 07/278005 PMT 010092357. #3homp -30,000.00 63,730.15 08/028005 INV ##7homp. 59,398.66 125,128.81 08/112005 INV ##8hamp. 35,24424 160,373.05 08/162(x15 PMT 0 10097066. #6harop -10,000.00 150,373.05 08/162005 PMT#10097084.#6bamp -17,800.00 132,573.05 08/16/2005 PMT #10097082. #6homp -19,900.00 112,673.05 08/16/2005 PMT # 10097087. #5 & 6 Hemp -18,030.00 94,643.05 08118!2005 INV 09hamp. 64,771.90 159,414.95 08123/2005 INV 0#1014amp, 65,747.50 225,16145 08131/2005 INV #911Hamp, 61,239.48 286,401.93 09108/2005 INV 0012Hamp. 45,851.92 332,253.85 0911312005 INV ##1314wap. 36.738.22 369,012.07 09/15/2045 PMT 1110104055. #6,7,8,9,10 -200,000.00 169,012.07 D9120/2005 INV ##I 4hmp, 42,602.9B ' 211.615.05. 09/22/2005 PMT 410101643. 0 10.11 . -81,567.39 130,047.66 09/23/2005 rMV f#15hemp. 38,216.72 168,264.38 09128/2005 PMT#12.5-!!I1-15 -168,264.38 0.00 10/03/2005 INV "I Ghmp. 20,778.55 20.778.53 10113/2005 INV ##17hunp_ 39.667.00 60,445.55 10/1812005 INV ## 18hamp, 17,246.46 77,692.01 10/24/2005 INV119hemp. 26,843.04 104,535.05.i 10/3112005 TKV 4#201tarnp. 15,701.00 120,236.05 1 T/15/2005 PMT #10117000. 416hamp ..20,778.00 99,458.05 12/06/2005 INV ##21hatnp. 8,159.73 107,617.78 12131/2006 GENJRTiL022. incorrect invoice -23,860.00 83,757.78 CURRENT 7-30 DAYS PAST 31-90 DAYS PAST 81-90 DAYS PAST OVER 90 DAYS Amount Due DUE DUE DUE PAST DUE 0.00 0.00 0.00 0100 81.257.78 581,257.78 rage I a - cl 098L.--9ts4-098 - o u l ` 1 1 e m"Cl 1 i ki - o tl Date 1 D/3/2OD7 ww-oir =9 LUD2 Co '400 Do-A.H Drywall, Inc. 9 Laughlzn Rd. Enfield, CT 06082 To: Barrett Company, inc. 429 Sotnh 18th 9t Camp Kilt PA 17011 Attu; Michael Barrett Amount Due Amount Enc. $91,257.78 Date Transaction Amount Balance 04/13/2007 WM200i1 PMT#230214.017 PMT #210227.017 -1.000.00 -1,300.00 02,757.78 81,257.78 CURRENT 1-30 DAYS PAST DUE 31-60 DAYS PAST DUE 61-90 DAYS PAST DUE OVER go DAYS PAST DUE Amount Due 0.00 0.00 0.00 0.00 81,257.78 $81.237.7$ rage z g- cl 098L-S*L- 096 - ou I` 1 i emR.Aa i T w-oa Statement Date 10!3/2007 wu*-i :q L002 EO 200 d vl 4A (? N _ 00 ril -0 `t .. - 1"77 -? _ CD ?r?.. SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P. C. Paige Macdonald-Matthes, Esquire Supreme Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant, Barrett Company, Inc. DO-ALL DRYWALL, INC. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF, V. : DOCKET NO. 20071-7066 : CIVIL ACTION - LAW BARRETT COMPANY, INC. DEFENDANT PRAECIPE OF ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Paige Macdonald-Matthes, Esquire and the law firm of Serratelli, Schiffman, Brown & Calhoon, P.C., as counsel of record for the Defendant, Barrett Company, Inc., with regard to the above referenced matter. Respectfully submitted, 7! 1. o AU hwJ..,._n. hi Iit 1'-f. e- Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 Dated: December 4, 2007 AIM 00 CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, hereby certify that on this 4th day of December 2007, I served a true and correct copy of the foregoing Praecipe of Entry of Appearance via U.S. mail, postage prepaid and facsimile, upon the following: Craig A. Diehl, Esquire LAW OFFICES OF CRAIG DIEHL 3464 Trindle Road Camp Hill, PA 17011 Attorney for Plaintiff, Do-All Drywall, Inc. Paige acdonald-Matthes -2- C7 C-, CPO SHERIFF'S RETURN - REGULAR CASE NO: 2007-07066 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DO-ALL DRYWALL INC VS BARRETT COMPANY INC MARK CONKLIN 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 INC the DEFENDANT , at 1535:00 HOURS, on the 26th day of November-, 2007 at 429 SOUTH 18TH STREET CAMP HILL, PA 17011-5902 by handing to ADMINISTRATOR a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge Sworn and Subscibed to before me this So Answers: 18.00 14.40 .41 10.00 R. Thomas Kline .00 42.81 11/27/2007 CRAIG A DIEHL By: day Deputy Sheriff of A. D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DO-ALL DRYWALL, INC., Plaintiff NO. 2007-CV-7066 V. BARRETT COMPANY, INC., Defendant CIVIL ACTION - LAW ANSWER OF PLAINTIFF TO PRELIMINARY OBJECTIONS NOW COMES, Plaintiff, Do-All Drywall, Inc., by and through its counsel, Law Offices of Craig A. Diehl, and answers Defendant's Preliminary Objections as follows: 1. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment. 2. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment. 3. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment. 4. Denied. Plaintiff never communicated with Cousins Bennington Hotel, LLC ("Cousins") regarding contract requirements or project payments. Plaintiff was directly hired by Defendant on a time basis (hourly rate, meals, and hotel costs) for the drywall work. 5. Denied. Defendant hired Plaintiff directly through a verbal contract that occurred in Connecticut. 6. Denied. There was no contract between Cousins and Plaintiff. Defendant hired Plaintiff directly through a verbal contract that occurred in Connecticut. 7. Denied. Requisitions #17 - #21 for work performed are still open and outstanding. Payment for Requisitions #1 - #16 has been received. (See spreadsheet attached as Exhibit A for a complete history of the Requisitions submitted and payments received.) 8. Denied. There was an oral contract that occurred in Connecticut between Mr. Michael Barrett, Barrett Company, Inc. and Mr. Mario Cournoyer, Do-All Drywall, Inc. Do-All Drywall, Inc. was contacted by Mr. Michael Barrett to perform the Cousin's project and agreed to the terms of the project. 9. Denied. See responsive pleadings set forth in paragraphs 1 - 8. 10. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment. 11. Denied. Plaintiff never communicated with Cousins regarding contract requirements or project payments. Plaintiff was directly hired by Defendant on a time basis (hourly rate, meals, and hotel costs) for the drywall work. 12. Denied. Plaintiff never communicated with Cousins regarding contract requirements or project payments. Plaintiff was directly hired by 2 Defendant on a time basis (hourly rate, meals, and hotel costs) for the drywall work. 13. Denied. Dual party checks including Plaintiff, Defendant and Cousins were disbursed when the construction manager became aware that Defendant was not paying its subcontractors. (See Exhibit B attached hereto for copies of the dual party checks.) 14. Denied. The unpaid Requisitions #17 - #21 were submitted in the same manner as Requisitions #1 - #16, but remain unpaid by Defendant. 15. Denied. Plaintiff has no contract with Cousins and thus has no legal authority or ability to pursue Cousins for payment. WHEREFORE, Plaintiff, Do-All Drywall, Inc., respectfully requests that this Honorable Court dismiss Defendant's Preliminary Objections and direct Defendant to answer the Complaint within twenty (20) days. 0 Date: 1/10 Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL "q I , , = ?? a By: Craig Diehl, Esquire Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: 717-763-7613 Fax: 717-763-8293 Counsel for Plaintiff 3 EXHIBIT A D.A.O. barre tt statemen t breakdow n date rvq # $$ req ei() paid difference I?alance 5125/2005 1 9,939 pd 6%0005 2 9,995 pd 5/9,2005 3 9,217.60 pd 6/28/2005 1,2, 3 29,151.50 0 7/19/2005 5 37,147.10 30,000-00 pd _ 7/26/2005 6 58,583.05 _ 0.15 7127/2005 d 30,000.00 5 8/212005 7 59,398.66 .. 8/11/2005 _ 8 4.24 35,24 _ pd 8116/2005 . 6 10,000 _ pd 6 17,800 ,- g 19,900 _. . , pd 5&6 18,030 811612005 9 64,771.90 pd 8/23/2005 10 65,747.50 24,889.45 8/31/2005 11 61,239.48 _ pd 4,561.54 9/812005 12 45,851.92 _ _ pd 9/13/2005 13 36,758.22 pd 9/15/2005 _ 7,8,9,10 200,000 25,162.45 9/20/2005 14 42,602.98 _ .. d . 9/2?J2005 10,11 _ 81,567.39 4,834.54 9/23/2005 15 38,215.72 d _ 9128/2005 11,12,13,14,15 168,264.38 2.73 10/3/2005 16 20,778.55 d 3.28 10/13/2005 17 39,667.00 _ open 39,670.28 _ 10/1812005 18 17,246.46 open 56,916.74 10/24/2005 19 04 26,843 0 83,759.78 10/31/2005 20 ; 15,701.00 open 99,460.78 11/15/2005 16 20,778.00 12/6/2005 21 8,159.73 open 107,620.51 12/31%2006 en ma120 23,860.00 83,760.51 _ 4113/2007 #17 1,000.00 _ EXHIBIT B u -, in AEMITTEH: COUSINS BMWINGTON HOTEL,, LLC PAY T.O'.Tt% ORDEA'OF ; D6-TT-fir ORV43A3?:z?$iiR ! C0 INC & EXACTLY ++20,778 AND 00/100 DOLLARS ..'TREASURER'S CHECK DISH #14 DAU 11 / 7 / Q45 i 11800101170001P 4:0 L L60006 2i: 1 9 107 20 9 2n' DO ALL DRYWAU PaCE 03 QE/95/2005 03:42 360145786a ': Sovere?g? Tank Confirmation of Dadorserrment Form Det?asitolrlCtss6omer xteformstion A ccouot Nwn6= Depasitor/Cuaeomer Naree: 'kddreossl r am named ae a pays: on the following check: Check.lo. 951 1 datrd W IS ` 0 ? ra eiso amwnt of 001 7 7St.06 Naae of maker: 1 Lc- Name(s) ank eEstsclc iv d7+iWtt on: f, ?n. C? t of payee(s) t represcbt attd ivammt that T endorsed the foregoing cheek and uumfcrred it to; [n=o of depositor/customer]. T reprotzt and warrmr that I tsazdsforre d for considemtion but withom endorsement the fore goia chxk w-. [name of dcpa r/c)atnmw) t berelry • vcrinc co ,ubscyu.-in ixmTfei cwt ut the check, as of the time of my transfer, the same wammzir--e that would have been provided to chess as a rn=cr of law under UCC § 3-416 by virtue ofmy andoracmcat if I had endorsed the check naoraeiy, ;,bat: 1. I `m a person entitled ro cafnree the check. 2. All signamm on. the check are authentic sad authorized. 3. Tho cbeok bas not been alttstrd. 4. 711 check is netsubjeot to a dc*nse or claim in recoupment of any pasty-which can be asserred, arp.insr ate. S. T havo no knowladp of nay atsolvency proaeodin$ co=enced with respect to the makcr, acceptor or drawer of the check- la aorlsid=don of the acceptance of th check by Sovereign 9aak (the' Sank'? for deposit into= account andlor ocgoti ation ;n which Y Tao'!d no ' IS i 2ga' a orny, X lure8y agee to be :subject to The rernediey praviccd in U CC .? 3-41 f (h ). payer $ignamre: Date: ? l ?,??1 ?S Pavcc Naze. zh1k)"A T11eci rppetgrdlre tae on this .Z/ day of .G?In t it fD .nv/l1 ) • nrrl 10 ex Cuw&tAe ih iasalzmantAndac • ?' ? ?? - ? F7rrsa g lmowlcty.rr1 that be/she executed the the same an his/lwr free ace and deed. ZE. _AL Notary Pu?N - ra e No. fl1 GJ8067757 QualHled In Rensselaer County Commission Expires Oct. 281; C1?J0 Tnfarmatfiun •-?'OR ><3A.Nli? 71SE dNL,Y ? C130 Town Member Xamc C 0 Namo: CFO Numbcr. Ins=Cri0zM Ynteroffic.-. mail the original complered and nobui7ed forts w LA&,c sit MC_ MrtL-v1B3-OZ-?17 Effeaivo 06/01 RCANod t1710S F; , TIME C,8 1 ` 'r ?`' 110'5643 . . NIdMreF FDIC" .. REMITTER; COUSINS BENNINGTON HOTEL,. •LLC DACE 9/2a. Q5 PAY TO TFtE, ' OTT Ar,* „° ;; ?T 8 ETT C INC & C4? I 3 .' ?F4ftilNdT N NOTE oROSai of . EXACTI.X *+51,567 AND 39/100 DOLLARS $ 811567.39 • clllrrEalDea ".? r E •' AUTNDflIZBO SIGNATURE TREA'SURER'S CHECK DISB ##13 REPLACE T/C 10105254 lkwom 11000 LO LO 56431" 1:0116000r.21: i9 L0 20q 211' 08/05/2005 62:42 >36d7457968 DO ALL DRYWALL PAGE h' .4 -5 verel- 'Bank Confirmation o Endorsement Form Acco= Number: bcpcsitor/Customer Name: A,ddrC93: I atn named as a payer on the fol lowing check: rip Check No. (lat1']? ? dated °I 22.45 _a tfao smount of NI =c of maker Wamr of bank check is drawn aw. C ?t ?' ? A_________ Name(s) ofpayw(s) 1, represent acid warrant that i endorsed the forasoiog obcak artd ttausfetred it tot DC1 ?'?' [S,?\ %-2S: tom. 2N'- lname of depositor/customer]. I represent and wamnt tl= I trersfetata-dd for consideration but without endomment the fore going check to: Cnamo ofdcpo£itor/cLLatoTnmr3. T besebywar=nr to subscg-Qont vwrfffa core of rho etiecl; as of the time of my transfer, the same wzn=dcs that would have been provided to there ss a matter of taw under VCC § 3416 by L rtue ofmy endorsement if I had endorsed the check, namely, that: 1. Y = a person entitled ro mfarce the cheek. 2. All aignanuea on the check: are authentic and authorized- 3. Tht; check bas not been altered. 4. The cheep is not eubjeot to a dc*=c or glom in recoupmam of any party which can be asseeted against me. S. I bavo no knowledge of any insolvency psoccading commenced with respect to the mskcr, acceptor or dnwer lu consideration of tho acecpten the check by Sovereign Banc (the `'Back') for deposit into an aceoam az d+'or nc-otiation in which I bold no itrterest or ty, I hereby agme to be subject to the remedies provided in UCC 3.416(h). Payee Sigma-=re: Date: 'd ' t 2 -C1J Favoc Name- :„C Qlq G' c .1 Then app=4 before me on tWa I day of re foregoing ?r S • A who'extx *d tae forego;ag iaacemQnt amd ackaowic cd fat bcN. be executed the same as hi e act and deed. SEAT. CBO Name: C$O Number. lnamcdoac: Yntarofaace anvil tie original compleradgTA nabu4 ,cd. Eotm to LP&S at MC: XA!-MB3-02-0-? F$er. iVc 06MI Rwiacd 07/09 LOCAT I 0111 • Rx, T I ME 08, 1 ' ' 0 5 15 : c"J CHO Toam MemberNane: CERTIFICATE OF SERVICE AND NOW, the -L day of , 2008, the undersigned hereby certifies that a true and correct copy of the foregoing ANSWER OF PLAINTIFF TO PRELIMINARY OBJECTIONS was served upon the opposing party by way of United States first class mail, postage prepaid, addressed as follows: Paige Macdonald-Matthes, Esquire Serratelli Schiffman Brown & Calhoon, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 (Counsel for Defendant) Barbara J. Smith, Legal Secretary -? r=a E=.-? ?? -? ?_ _,., y.. _ -? i ? - _. _..? C..?l fTF • • ,,.a ...?: 4`?' :? Craig A. Diehl, Esquire I.D. No. 52801 LAW OFFICES OF CRAIG A. DIEHL 3464 Trindle Road Camp Hill, PA 17011 Attorney for Plaintiff, Do-All Drywall, Inc. DO-ALL DRYWALL, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff DOCKET NO. 2007-CV-7066 V. : CIVIL ACTION - LAW BARRETT COMPANY, INC., Defendant. :. PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: List the within matter for the next Argument Court. 1. Preliminary Objections. 2. All counsel who will argue cases: (a) for Plaintiffs: Craig A. Diehl, Esquire 3464 Trindle Road Camp Hill, PA 17011; (b) for Defendants: Paige Macdonald-Matthes, Esquire Serratelli Schiffinan Brown & Calhoon, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670; 3. I will notify all parties in writing within two (2) days that this case has been listed for argument. 4. Argument Court Date: . 1) rc. 3, 2 ocg -4- Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL 1.1.4 /'a Date: 0 By: A Z. Craig A iehl, Esquire Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: (717)763-7613 Fax: (717)763-8293 Attorney for Do-All Drywall, Inc., Plaintiff CERTIFICATE OF SERVICE AND NOW, the de day of 2008, the undersigned hereby certifies that a true and correct copy of the foregoing Praecipe for Listing Case for Argument was served upon the opposing party by way of United States first class mail, postage prepaid, addressed as follows: Paige Macdonald-Matthes, Esquire Serratelli Schiffman Brown & Calhoon, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 Attorney for Defendant Katherine Zimme , Legal Secretary C? ? ? ?r J i ? i i? ee L.,+ r ?` W ) y,?? 4? ^. ;... ..4y ^.,.. .. n \ .y _. ? ce' r_. Fw ? ?.i..? .i ? r: ? 4 _? ??? r? DO-ALL DRYWALL, INC., PLAINTIFF V. BARRETT COMPANY, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this 02S day of December, 2008, the preliminary objections of defendant, Barrett Company, Inc., to plaintiff, Do-All Drywall, Inc.'s complaint, ARE DISMISSED.' Edgar-B. Bayley, J. ' Plaintiff pleaded that "Defendant employed Plaintiff on a time and material basis to provide framing, sheetrock and taping for the Hampden Inn, Bennington, Vermont, project." Plaintiff demands judgment for $81,257.78 for work that it performed and which remains unpaid. Plaintiff, as it should had, did not plead that its employment by defendant was pursuant to an oral or written agreement. However, defendant attached a notice to plead to its preliminary objections. Plaintiffs answer includes an averment: "Defendant hired plaintiff directly through a verbal contract that occurred in Connecticut." Under these circumstances we will not require plaintiff to file an amended complaint to add the word "oral" to its already pleaded employment agreement. Defendant's preliminary objections aver that Cousins was the general contractor and it hired defendant. In its answer to defendant's preliminary objections, plaintiff avers that there was no contract between it and Cousins. If defendant employed plaintiff and owes it money for work performed, plaintiff will obtain a judgment. If defendant did not employ plaintiff it is not responsible for the payment of plaintiff's claim, plaintiff will not recover against defendant. Cousins, as claimed by defendant, is not an indispensable party to this lawsuit. 4 Q,j ~ } iY' 1 r? c - -. /Craig A. Diehl, Esquire For Plaintiff /Paige Macdonald-Matthes, Esquire For Defendant sal COI I." m,?ISCL ????1og Serratelli, Schiffman, Brown & Ca, Paige Macdonald-Matthes, Esquin 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 Attorneys for Defendant DO-ALL DRYWALL, INC. V. BARRETT COMPANY, INC. DEFEND To: Do-All Drywall, Inc. c/o Craig A. Diehl, Esquire LAW OFFICES OF CRJ 3464 Trindle Road Camp Hill, PA 17011 P. C. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO. 2007-7066 : CIVIL ACTION - LAW NOTICE TO PLEAD . DIEHL You are hereby notified to file a written response to the enclosed New Matter to Plaintiff's Complaint within against you. (20) days from service hereof or a judgment may be entered Respectfully submitted, 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 Date: January 6, 2009 R Serratelli, Schiffman, Brown & Cal Paige Macdonald-Matthes, Esquire 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 Attorneys for Defendant V. DO-ALL DRYWALL, INC. BARRETT COMPANY, INC. DEFEND P. C. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO. 2007-7066 : CIVIL ACTION - LAW 1T MATTER AND NOW, comes Defend its counsel, Serratelli, Schiffman, I New Matter to Plaintiff's Comnlai 1. Admitted. 2. Admitted. 3 Barrett Company (hereinafter "Barrett"), by and through n & Calhoon, P.C., and files its Answer Together With and in support thereof aver as follows: Denied. It is denied that "Defendant employed Plaintiff on a time and material basis to provide framing, sheetrock and taping for the Hampton Inn, Bennington, Vermont project." o the contrary, Cousins Bennington Hotel, LLC ("COUSINS") is the legal owner of the Hampton Inn, Bennington, Vermont and COUSINS hired Defendant to serve as the General Contractor for the construction of the Hampton Inn, Bennington, Vermont (hereinafter the "PROJECT"). As the owner of the PROJECT, COUSINS determined to hire its own dry-wall contractor, which was Plaintiff. 4. Admitted in part and denied in part. It is admitted that Plaintiff originally provided Defendant with some statement itemizing amounts owed and payments received. It is denie that Plaintiff continued this practice once Plaintiff realized that its contract was with COUSINS. 5. Denied. It is of $81,257.78." To there was no 6. Denied. It is and the prices cb provided." 7. Admitted in part pay Plaintiff the that "at the present time Defendant owes to Plaintiff the sum he contrary, Defendant does not owe Plaintiff anything as t between Plaintiff and Defendant regarding the PROJECT. that Plaintiff's work was done "with quality workmanship were reasonable for the type of services and materials denied in part. It is admitted that Defendant has refused to anding balance alleged to be owed. It is denied that Defendant owes Pla ntiff any sum. WHEREFORE, Defendant, Barrett Company jointly and severally respectfully requests that this Honorable Court sustain its Preliminary Objection to Plaintiff's Complaint, dismiss Plaintiff s Complaint with prejud ce and further award Defendant all such other relief as is proper and just. 8. The answers and by reference as if NEW MATTER ents set forth in paragraphs 1 through 7 are incorporated fully set forth at length herein. 9. During the PROJEC , communications between COUSINS and Defendant broke down due to unexec ted change orders and a disagreement between COUSINS and Defendant concerning the PROJECT ensued. 10. As part of the resolu ion of their disagreement regarding the PROJECT, COUSINS determined to hire its own dry-wall contractor, which was Plaintiff. 11. COUSINS hired Pla ntiff to provide framing, sheetrock and taping (hereinafter collectively "Drywa 1 Services") for the PROJECT. Defendant is without knowledge sufficien to form a belief as to whether the contract between COUSINS and Plaintiff was subsequently reduced to writing however, there was at least one (1) othe witness to the oral contract between COUSINS and Plaintiff, to wit, the PROJEC Superintendent. (Defendant believes and therefore avers that if there is a written contract between Plaintiff and COUSINS, a copy of the written contract is i the possession of Plaintiff and/or COUSINS). 12. Pursuant to the term of the contract between COUSINS and Plaintiff, COUSINS was obligated to pa Plaintiff for services rendered conditioned on Defendant's review and approval of the work performed by Plaintiff that was described in each payment authorization form submitted by Plaintiff to Defendant. 13. COUSINS affirmati ely represented to Plaintiff that COUSINS was responsible to pay Plaintiff for s rvices rendered on the PROJECT. 14. All payment authorization requests that were properly submitted by Plaintiff and authorized by Defen ant up to and including Plaintiff's Invoice dated October 13, 2005 were paid, as evidenced by the following documents: Plaintiff's Exhibit "A" attached to its Comp aint; Plaintiff's Invoice dated October 3, 2005 (with 15. 16 17 18. 19. 20. 21. 22. 23. 24. 25. supporting authorizations), together with a copy of the Treasurer's Check made payable to Plaintiff nd Defendant in the amount of $20,778.00, copies of which are attached hereto nd collectively marked as Exhibit "A"; and Plaintiff s Invoice dated October 13, 2005, (together with supporting authorizations) which is attached hereto collectively marked as Exhibit "B." No contract, either written or oral, exists between Plaintiff and Defendant that would in any way o ligate Defendant to pay the amount claimed to be due and owing by Plaintiff i its Complaint. All payments issued to Plaintiff for the PROJECT were issued to Plaintiff by COUSINS. The payments claim d to be due and owing by Plaintiff in its Complaint are payments for which COUSINS is contractually liable. Plaintiff did not perform in accordance with the terms and conditions of the parties' October 20, 2004 Contract. Plaintiff's claims arc barred by the statute of frauds. Plaintiff's claims are barred under the doctrine of accord and satisfaction. Plaintiff's claims are barred under the doctrine of assumption of risk. Plaintiff s claims arc barred by the parol evidence rule. Plaintiff s injuries and losses, if any, were caused by Plaintiff s own actions or by Plaintiff s own failure to act. Plaintiff s claims are barred and/or limited by contributory negligence. Plaintiff s claims are barred by assumption of risk. Plaintiff s claims are barred under the doctrine of equitable estoppel. 26. Plaintiff's equitable laims are barred under the doctrine of "unclean hands." 27. Plaintiff's claims arc barred under the doctrine of laches. 28. Plaintiff's claims are barred by the statute of limitations. 29. The damages claime d by Plaintiff bear no cause or relationship to any act or alleged failure to act on the part of Defendant. 30. Plaintiffs alleged in uries and/or losses, if any, were caused by actions or events outside of the Defen dant's control. 31. Plaintiff has failed t 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 an d against Plaintiff, dismiss Plaintiff's Complaint with prejudice, and further award Defend ant all such other relief as is proper and just. Date: January 6, 2009 Respectfully submitted, Paige Macdonald-Matthes, Esquire Pa. Attorney I.D. No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant I, Michael Batten, verify t With New Matter to Plainti8's Con herein are made subjeot to the p falsification to authorities. Date; 1 " . 01 VERMCATION the statements made in the foregoing Answer Together iini are true and correct. I uindavand that false statements 'ties of 18 Pa. C.S. Section 4904, relating to unsworn wMichael Barrett I, Paige Macdonald-Matthe?, Esquire, do hereby certify that on this 6th day of January, 2009, I served a copy of Defendants Answer Together with New Matter to Plaintiff's Complaint via United States Mail, First Class, ?ostage pre-paid, to the following person(s): Craig A. Diehl, Esquire LA OFFICES OF CRAIG DIEHL 3464 Trindle Road Camp Hill, PA 17011 orne for Plaintiff, Do-All Drywall, Inc. iar ?olll?a KAdb) UV.d-Q'?-JU.@ Xtja4 Paige Macdonald-Matthes, Esquire ?,? ;- s L .- -r° . . ?t ..,,.1 C",. f: ?? • ` C:.. Defendant. DOCKET NO. 2007-CV-7066 CIVIL ACTION - LAW ANSWER TO NEW MATTER AND NOW COMES Plaintiff, Do-All Drywall, Inc., by and through its counsel, Law Craig A. Diehl, Esquire I.D. No. 52801 LAW OFFICES OF CRAIG A. DIEHL 3464 Trindle Road Camp Hill, PA 17011 Attorney for Plaintiff, Do-All Drywall, Inc. DO-ALL DRYWALL, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. BARRETT COMPANY, INC., Offices of Craig A. Diehl, answering the New Matter pled as follows: 8. No responsive pleading required. 9. Denied. After reasonable investigation, Do-All Drywall, Inc. (hereinafter "Do- All"), is without knowledge or information sufficient to form a belief as to the truth of whether communications broke down between Cousins and Defendant, Barrett Company, Inc., due to unexecuted change orders. By way of further answer, Do-All was informed that Defendant, Barrett Company, Inc., was using subcontractors that were performing inferior and poor quality workmanship. 10. Denied. At no time did Do-All contract with or negotiate with Cousins. In fact, it was Defendant, Barrett Company, Inc., that orally contacted Do-All and requested them to immediately provide a crew to work on the project based on a time and material basis. Do-All refused to enter into a written, fixed price contract due to the faulty workmanship discovered on the project. 11. Denied. There is no contract, oral or written, between Cousins and Do-All. Do- All never even spoke with a representative of Cousins prior to commencing work. All oral agreements were between Do-All and Barrett Company, Inc. 12. Denied. There was no written or oral contract between Cousins and Do-All. The oral contract was between Do-All and Barrett Company, Inc., and consisted of a time and materials basis. 13. Denied. At no time did Cousins represent to Do-All that it was responsible to pay Do-All. 14. Denied. Do-All has numerous invoices that are unpaid. Cousins commenced disbursing three-party drafts when it became aware that Barrett Company, Inc., was failing to pay its subcontractors. 15. Denied. It was Barrett Company, Inc., that contacted Do-All's owner and requested assistance from Do-All in finishing the project. 16. Denied. Some payments were made with three parties' names on the checks when it was determined that Barrett Company, Inc., was delinquent paying its subcontractors. 17. Denied. Payments due to Do-All are owed by Barrett Company, Inc. There never was a contract between Do-All and Cousins. Do-All has never been made aware of any circumstances that it failed to perform adequately and up to industry standards. 18. Denied. The averment is a conclusion of law to which no responsive pleading is required. 2 19. Denied. The averment is a conclusion of law to which no responsive pleading is required. 20. Denied. The averment is a conclusion of law to which no responsive pleading is required. 21. Denied. The averment is a conclusion of law to which no responsive pleading is required. 22. Denied. The averment is a conclusion of law to which no responsive pleading is required. 23. Denied. The averment is a conclusion of law to which no responsive pleading is required. 24. Denied. The averment is a conclusion of law to which no responsive pleading is required. 25. Denied. The averment is a conclusion of law to which no responsive pleading is required. 26. Denied. The averment is a conclusion of law to which no responsive pleading is required. 27. Denied. The averment is a conclusion of law to which no responsive pleading is required. 28. Denied. The averment is a conclusion of law to which no responsive pleading is required. 29. Denied. The averment is a conclusion of law to which no responsive pleading is required. 3 30. Denied. The averment is a conclusion of law to which no responsive pleading is required. 31. Denied. The averment is a conclusion of law to which no responsive pleading is required. WHEREFORE, Plaintiff, Do-All Drywall, Inc., respectfully requests that this Honorable Court enter judgment in its favor and against Defendant, Barrett Company, Inc., for $81,257.78 and further award Plaintiff any and all such other relief as is proper and just. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Date: I d By: Craig A. iehl, Esquire Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: (717)763-7613 Fax: (717)763-8293 Attorney for Do-All Drywall, Inc., Plaintiff 4 VERTFICATYON I, LAURA COURNOYER, PRESTDENT, DO-ALL DRYWALL, INC., Plaintiff above-- named, being duly sworn according to lave, deposes that the facts set forth in the foregoing ANSWER TO NEW MATTER are true, as she verily believes. Data; - I- 9 CERTIFICATE OF SERVICE `f"V' AND NOW, the day of 2009, the undersigned - 9111Y'%LVLA44 hereby certifies that a true and correct copy of the foregoing Answer to New Matter was served upon the opposing party by way of United States first class mail, postage prepaid, addressed as follows: Paige Macdonald-Matthes, Esquire Serratelli Schiffman Brown & Calhoon, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 Attorney for Defendant ff L L Ka a ine Zimmerm egal Secretary 6 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court tK for trial without a jury. ---------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) X Civil Action - Law ? Appeal from arbitration (other) DO-ALL DRYWALL, INC. VS. (Plaintiff) The trial list will be called on and Trials commence on BARRETT COMPANY, INC. (Defendant) Pretrials will be held on (Briefs are due 5 days before pretrials) No. 2007-CV-7066, Civil Term Indicate the attorney who will try case for the party who files this praecipe: Craig _A Diehl Esquire Law Offices of Craig Diehl 3464 Trindle Road, Camp Hill, PA 17011 Indicate trial counsel for other parties if known: Paige Macdonald-Matthes Esquire, Serratelli Schiffman Brown & Calhoon, P.C., 2080 Linglestown Road Suite 201, Harrisburg, PA 17110 This case is ready for trial. Signed: C4? a_ Print Name: Craig A. Diehl, Esquire Date: Attorney for: Plaintiff CERTIFICATE OF SERVICE AND NOW, the 12th day of May, 2009, the undersigned hereby certifies that a true and correct copy of the foregoing Praecipe for Listing Case for Trial was served upon the opposing party by way of United States first class mail, postage prepaid, addressed as follows: Paige Macdonald-Matthes, Esquire Serratelli Schiffman Brown & Calhoon, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 VY De a A. Fike, Legal Secretary OF-: I 2003 ti: 4 ?f '. oo PAD ATTq CO I s,8L, zrt- aas, 5o DO ALL DRYWALL, INC. V. BARRETT COMPANY, INC. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 2007 - 7066 CIVIL TERM ORDER OF COURT AND NOW, this 5TH day of JUNE, 2009, a pretrial conference in the above captioned matter is SCHEDULED for S ?4 OVs o 1 ld,'DQ 4. 01in Chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memorandum shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five (5) days prior to the pretrial conference. Xraig A. Diehl, Esquire 3464 Trindle Road Camp Hill, Pa. 17011 IPaige MacDonald-Matthes, Esquire 2080 Linglestown Road, Suite 201 Harrisburg, Pa. 17110 :sld 12, 1 kS rY1a`L46(- Laward E. Guido, J. 'ONVAIASWd 00 :Z Nd S- Nnr 6892 AWiQ OO Wd JHi 3O Dmo-olo Serratelli, Schiff nan, Brown & Calhoon, P. C. Paige Macdonald-Matthes, Esquire Attorney I.D. 66266 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 Attorneys for Defendant DO-ALL DRYWALL, INC. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. BARRETT COMPANY, INC., Defendant : DOCKET NO. 2007-7066 : CIVIL ACTION - LAW MOTION TO WITHDRAW AS COUNSEL AND NOW, this 2°d day of July, 2009, comes Paige Macdonald-Matthes Esquire, and Serratelli, Schiffman, Brown & Calhoon, P. C., attorneys for the Defendant, in the above- captioned action, and request permission from this Honorable Court to withdraw as Counsel for the following reasons: Petitioners, Paige Macdonald-Matthes, Esquire and Serratelli, Schiffman, Brown & Calhoon, P. C., (hereinafter collectively "Petitioner") are counsel of record for the Defendant/Respondent, Barrett Company, Inc. in the above-captioned matter. 2. Respondent, Barrett Company, Inc. (hereinafter "Respondent") is a Pennsylvania business corporation having a place of business located at IL 3. Petitioner was retained by Respondent to represent it in the above-captioned matter. 4. Petitioner has undertaken such representation but is now unable to continue to do so for the following reasons: a. Respondent's principal, Michael Barrett advised the Petitioners on or about May, 2009 that Respondent was going to file for bankruptcy. The undersigned counsel immediately advised Plaintiff's counsel of the impending bankruptcy filing by letter dated June 1, 2009; b. Petitioners have confirmed with Respondent's bankruptcy counsel, Deborah J. Hughes, Esquire that she has been retained to represent Respondent in a bankruptcy proceeding; C. As of the date of the filing of this Motion, the Respondent has not yet filed for relief in bankruptcy; d. Respondent has failed to reasonably reply to Petitioners' recent telephone calls and Respondent has likewise failed to reasonable reply to Petitioners' recent written communications; e. There has been a general failure of communication between Petitioner and Respondent since the date that Respondent advised Petitioners that Respondent was filing for bankruptcy so that Petitioners' ability to represent Respondent has been rendered unreasonably difficult; £ Respondent has failed to substantially fulfill its obligations to Petitioners regarding their services and he has been given more than adequate warning, both written and oral, that Petitioners would withdraw unless those obligations were fulfilled; and g. Other good cause for withdrawal exists. 5. Withdrawal is allowed under Rule 1.16(b) of the Rules of Professional Conduct. 6. The above captioned matter is currently scheduled for trial during this Honorable Court's September 2009 Civil Trial Term. Thus, permitting the undersigned counsel to withdraw at this time would neither unduly prejudice nor have a materially adverse affect on Respondent's interests and would allow Respondent sufficient time to obtain alternative counsel to proceed on its behalf in this matter in the event that Respondent does not file for relief in bankruptcy. 7. This matter has been assigned to the Honorable Edward E. Guido. The undersigned counsel has contacted Plaintiff's counsel and provided him with a copy of the within Motion. Plaintiff s counsel has advised the undersigned counsel that he does not oppose the within Motion provided that in the event the Defendant does not file bankruptcy that trial in this matter will not be delayed. WHEREFORE, Petitioners respectfully requests Your Honorable Court to enter an order permitting Petitioners, Paige Macdonald-Matthes, Esquire and Serratelli, Schiffman, Brown & Calhoon, P. C., to withdraw as counsel of record for Defendant/Respondent in the above-captioned matter. Respectfully submitted, 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 Date: July 2, 2009 CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, counsel for the Defendant/Respondent in the above captioned matter, certify that I this 2nd day of July, 2009 served a copy of the foregoing Motion to Withdraw as Counsel upon the person(s) indicated below via U.S. First Class Mail upon the following: Michael Barrett Barrett Company, Inc. 429 South 18`h Street Camp Hill, PA 17011 Craig A. Diehl, Esquire LAW OFFICES OF CRAIG DIEHL 3464 Trindle Road Camp Hill, PA 17011 The Honorable Edward Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (Courtesy copy) ea ?? Ahs ?(snr.? 7E7 Paige Macdonald-Matthes, Esquire -(?, , '? fl W 20Ba JUL- {J O DO-ALL DRYWALL, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BARRETT COMPANY, INC. : NO. 2007 - 7066 CIVIL TERM ORDER OF COURT AND NOW, this 7TH day of JULY, 2009, it appearing that this matter is scheduled for the upcoming term of court, defense counsel's request to withdraw is denied. We will reconsider the request if. 1.) Defendant files a petition in bankruptcy; or 2.) Defendant obtains substitute counsel who is prepared to proceed without a continuance. B e Court, Edward E. Guido, J. Craig A. Diehl, Esquire aige Macdonald-Matthes, Esquire ,11M' ichael Barrett : sld C?OF Ces 7/g/?9 FILED--rte r OF T-{E 11ryr; -; `'''OTAPY 2009 JU -8 All 11: 15 t * . DO-ALL DRYWALL, INC. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2007-7066 CIVIL TERM BARRETT COMPANY, INC. Defendant CIVIL ACTION - LAW IN RE: PRETRIAL CONFERENCE A pretrial conference was held on Friday, July 10, 2009, before the Honorable Edward E. Guido, Judge. Present for the Plaintiff was Craig A. Diehl, Esquire, and present for the Defendant was Paige Macdonald-Matthes, Esquire. This is a breach of contract case that is relatively straightforward. The Defendant's counsel alleges that she has had no contact with the Defendant and that he intends to file bankruptcy. She has filed a motion to withdraw as counsel which we have denied unless the Defendant agrees or obtains other counsel that is prepared to proceed to trial. Trial in this matter is scheduled for Tuesday, August 11, 2009, at 1:00 p.m. We have agreed to reconsider defense counsel's motion to withdraw. We will have a brief hearing on that matter on Monday, July 27, 2009, at 10:30 a.m. in Courtroom No. 3. Defendant's counsel is directed to see that Defendant gets a copy of this Order. He is advised that if he does not appear at the July 27, 2009, hearing that we intend to grant counsel's motion to withdraw. We further advise the Defendant that we will not consider continuing the trial date if counsel is allowed to withdraw. ter. By-'the Court, Edward E. Guido, J. I a Craig A. Diehl, Esquire 3464 Trindle Road Camp Hill, PA 17011 Attorney for Plaintiff .',?aige MacDonald-Matthes, Esquire 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 Attorney for Defendant ichael Barrett, President Barrett Company, Inc. 429 South 18th Street Camp Hill, PA 17011 srs OCT t G-S V hu(Lsz 7/1 v??? ??l DO-ALL DRYWALL, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2007 CIVIL TERM BARRETT COMPANY, INC., Defendant CIVIL ACTION- LAW ORDER OF COURT AND NOW, this 27th day of July, 2009, the Defendant having failed to appear, the Petition of Paige Macdonald-Matthes, Esquire, is granted, and she may withdraw from representation. Trial will proceed as scheduled on August 11, 2009, at 1:00 p.m. ./"Craig A. Diehl, Esquire Attorney for Plaintiff eni S. Pilgrim, Esquire Suite 201 2080 Linglestown Road Harrisburg, PA 17110-9670 Michael Barrett Barrett Company, Inc. 429 South 18th Street Camp Hill, PA 17011 srs 120f tE.S rr'dt Rv Hni- rniirt OF THE F 7-- 2009 JJI 30 f', i 6• ? 0 „F "TV DO-ALL DRYWALL, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2007-7066 CIVIL TERM BARRETT COMPANY, INC., Defendant CIVIL ACTION- LAW ORDER OF COURT AND NOW, this 11th day of August, 2009, after hearing, we find in favor of the Plaintiff and against the Defendant, Barrett Company, Inc., in the amount of $81,257.78 plus costs and interest at the judgment rate from today's date. E Edward E. Guido, J. raig A. Diehl, Esquire Attorney for Plaintiff L10 -K Barrett Barrett Company, Inc. 429 South 18th Street Camp Hill, PA 17011 1 srs I 3LEL"i 1!-- D]4 AU ? 12 1-1 6: CE O C i I fir', or Craig A. Diehl, Esquire I.D. No. 52801 LAW OFFICES OF CRAIG A. DIEHL 3464 Trindle Road Camp Hill, PA 17011 Attorney for Plaintiff, Do-All Drywall, Inc. DO-ALL DRYWALL, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. : DOCKET NO. 2007-CV-7066 BARRETT COMPANY, INC., CIVIL ACTION - LAW Defendant PRAECIPE TO ENTER JUDGMENT TO THE PROTHONOTARY: Kindly enter judgment in the above-captioned proceeding pursuant to the Court Order attached hereto as Exhibit "A." Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Date: By: a, - 11 P??& Craig A. ehl, Esquire Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: (717)763-7613 Fax: (717)763-8293 Attorney for Do-All Drywall, Inc., Plaintiff EXHIBIT "A . . DO-ALL DRYWALL, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2007-7066 CIVIL TERM BARRETT COMPANY, INC., Defendant CIVIL ACTION- LAW ORDER OF COURT AND NOW, this 11th day of August, 2009, after hearing, we find in favor of the Plaintiff and against the Defendant, Barrett Company, Inc., in the amount of $81,257.78 plus costs and interest at the judgment rate from today's date. F Edward E. Guido, J. raig A. Diehl, Esquire 'Attorney for Plaintiff Michael Barrett Barrett Company, Inc. 429 South 18th Street Camp Hill, PA 17011 srs ns- 7ry ? I" , 20091?0V 12 FI'l 12: 4 3 21 $Iq.oo PD j%rH Cot l59ao kT-* a3-33-71 "C-C, kx&dkrj G~~_ Z~i~J~ -7 ~~'i ~= ~8 r'~- ~ ~ . Craig A. Diehl, Esquire I.D. No. 52801 LAW OFFICES OF CRAIG A. DIEHL 3464 Trindle Road Camp Hill, PA 17011 Attorney for Plaintiff, Do-All Drywall, Inc.. DO-ALL DRYWALL, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA v. DOCKET NO. 2007-CV-7066 BARRETT COMPANY, INC., CIVIL ACTION -LAW Defendant. MOTION TO COMPEL DISCOVERY AND FOR SANCTIONS Plaintiff, Do-All Drywall, Inc., (hereinafter Plaintiff), files this Motion to Compel Discovery and for Sanctions pursuant to Pa.R.C.P. 234.5(b), and in support thereof avers as follows: 1. Plaintiff initiated this action on November 21, 2007, by filing a Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania. 2. Subsequent to effective notice and a hearing, judgment was entered for Plaintiff and against Barrett Company, Inc., (hereinafter Defendant), on August 11, 2009. See Exhibit "A" for a true and correct copy of the Court Order granting said judgment. 3. On or about June 11, 2010, Plaintiff served a Subpoena to attend, testify, and produce documents upon Michael Barrett, owner of Defendant, via. United Parcel Service (hereinafter "UPS") Next Day Air Delivery. See Exhibit "B" for a true and correct copy of the Subpoena. 4. The Subpoena was delivered via UPS Next Day Air Delivery on June 16, 2010, at 9:46 AM. See Exhibit "C" for a true and correct copy of Proof of Delivery. 5. Pursuant to the Subpoena, Michael Barrett, owner of Defendant, was to appear for a deposition upon oral examination at the offices of counsel for Plaintiff on June 28, 2010, at 9:00 a.m. 6. Michael Barrett, owner of Defendant, failed to appear on the date of the deposition as scheduled. 7. Michael Barrett, owner of Defendant, made no effort to notify Plaintiff that he would not be appearing for the deposition or to request an alternate date for the deposition. 8. Michael Barrett, owner of Defendant, willfully and intentionally disregarded the Subpoena of this Honorable Court when he did not appear for the scheduled deposition. 9. At no time during this proceeding did Michael Barrett, owner of Defendant, seek a protective order or seek to quash the issued Subpoena. 10. Pa.R.C.P. 234.5(b) states that "If a party fails to comply with a subpoena..., the court may enter any order imposing appropriate sanctions authorized by Rule 4019(c) and, if the failure to comply is for the purpose of delay or in bad faith, the court may impose on that party the reasonable expenses actually incurred by the opposing party by reason of such delay or bad faith, including attorney's fees." 11. As a result of the Michael Barrett's failure to appear as the owner of Defendant, Plaintiff has incurred the expense associated with the appearance of a court reporter for the sum 2 of One Hundred and 00/100 Dollars ($100.00). Michael Barrett's willful conduct in disregarding the subpoena has caused Plaintiff to also incur reasonable attorney's fees, at the rate of One Hundred Seventy-five and OOJ100 Dollars ($175.00) per hour, associated with the preparation for the deposition, as well as for the preparation and presentation of this Motion. See Exhibit "D" for a true and correct copy of the invoice issued by Filius & McLucas Reporting Service, Inc. for the Late Cancellation. 12. Michael Barrett's conduct, as owner of Defendant, has prejudiced Plaintiff in that Plaintiff has incurred legal fees and costs, as well as additional delay in enforcing said Judgment granted by this Court. 13. The Court is empowered to impose a sanction whenever a party or person fails to make discovery or obey a court order for discovery under Pa.R.C.P. 4019, and the imposition of specific sanctions is largely within the discretion of the trial court. 14. Plaintiff moves this Court for the relief as set forth in Pa.R.C.P. 4019, due to Michael Barrett's failure to appear for oral examination pursuant to Pa.R.C.P. 234.5(b). 15. Plaintiff requests that this Honorable Court impose sanctions upon Defendant for the sum of Four Hundred Fifty Dollars ($450.00), which is the cost charged for the cancellation of court reporter services, as well as reasonable attorney fees to prepare for the deposition and to prepare and present this Motion. 16. Plaintiff also requests this Honorable Court to order Michael Barrett, owner of Defendant, to appear for a deposition upon oral examination and to produce the requested documents within twenty (20) days of the date of an order for same. 3 WHEREFORE, Plaintiff, Do-All Drywall, Inc., respectfully requests this Honorable Court to impose sanctions against Defendant for costs incurred of Four Hundred Fifty Dollars ($450.00) due to Michael Barrett's failure to obey a subpoena to appear for a deposition upon oral examination on June 28, 2010. Plaintiff also requests that this Honorable Court order that Michael Barrett, as owner of Defendant, present himself for deposition upon oral examination and produce the requested documents within twenty (20) days of this Court's Order. Respectfully submitted, Date: 'f / LAW OFFICES OF CRAIG A. DIEHL By: n , Craig A. iehl, Esquire Attorney LD. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: (717)763-7613 Attorney for Do-All Drywall, Inc., Plaintiff 4 CERTIFICATE OF SERVICE AND NOW, the 7 day of / 2010, the undersigned hereby certifies that a true and correct copy of the foregoing Motion to Compel Discovery and for Sanctions was served upon the opposing party by way of United States first class mail, postage prepaid, addressed as follows: Michael Barrett Barrett Company, Inc. 429 South 18~' Street Camp Hill, PA 17011 Pro Se ebr A. Fike, Legal Secretary 5 . ~ ~ DO-ALL DRYWALL, INC., Plaintiff V. BARRETT COMPANY, INC., Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.2007 - 7066 CIVIL TERM ORDER OF COURT AND NOW, this 14TH day of JULY, 2010, a Rule is issued upon Defendant to Show Cause why Plaintiff s Motion to Compel Discovery and Impose Sanctions should not be granted. Rule returnable twenty (20) days after service. B , Edward E. Guido, J. /Craig A. Diehl, Esquire For the Plaintiff ~ Michael Barrett Barrett Co., Inc. 429 South 18th Street Camp Hill, Pa. 17011 :sld N c~ ~' = :~ ~ ~i _.... _ c _ _-~ -;: -. ' ~ ~ - _ . . =~ +, A ~~