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HomeMy WebLinkAbout08-10330 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CASSELL CONCRETE, LLC, Plaintiff No. Q$ - `?33 Ctv i ( l errM VS. DONALD J. FARINELLI, Individually And FARINELLI CONSTRUCTION, INC., Defendants 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 defense 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone (717) 249-3166 PECHT & ASSOCIATES, PC By: A",-- Herbert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 Telephone: (717) 367-2800 Attorney I.D. #56304 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CASSELL CONCRETE, LLC, No 0 9 _ jp33 Plaintiff VS. DONALD J. FARINELLI, Individually and FARINELLI CONSTRUCTION, INC., Defendants COMPLAINT 1. Plaintiff herein is Cassell Concrete, LLC, a Pennsylvania Limited Liability Company with a principal place of business located at 1205 Manor Drive, Suite 100, Mechanicsburg, Pennsylvania 17055. 2. Defendant Farinelli Construction, Inc., is believed to be a Pennsylvania business corporation with a principal place of business located at 3 Kacey Court, Suite 101, Mechanicsburg, Pennsylvania 17055. 3. Defendant Donald J. Farinelli is an adult individual with a last known mailing address of 3 Kacey Court, Suite 101, Mechanicsburg, Pennsylvania 17055. 4. At all times relevant hereto Plaintiff was in the business of providing materials, supplies and labor in what is commonly referred to as concrete installation and construction business. COUNT I - CASSELL VS FARINELLI CONSTUCTION, INC. BREACH OF CONTRACT 5. Paragraphs 1 through 4 are incorporated herein as though set forth at length. 6. Prior to April 5, 2006, Plaintiff and Defendants entered into an oral contract whereby Plaintiff was to provide certain concrete construction services for Defendants. 7. Plaintiff provided Defendants with certain concrete construction labor, services, and materials and issued Defendants statements as follows: Start Date Job Identification Contract Price a. April 5, 2006 Arborfield 17 $1,299.55 b. April 5, 2006 Arborfield 18 $1,299.55 Total $2,599.10 8. Plaintiff provided all supplies, materials and labors in a good and workmanlike manner and in accordance with accepted principles within the principles of construction within the concrete installation industry. 9. Plaintiff has issued Defendants a series of statements and demanded payment but Defendants have failed or otherwise refused to make full payment. A true and correct copy of the Invoices issued totaling $2,599.10 are attached hereto, and incorporated herein by reference as though set forth at length and marked collectively as Exhibit "A". 10. Defendants have failed to pay $1,147.50 of the invoices when due, which is a material breach of the parties' oral contract. 11. As a result of Defendants' breach of the parties' oral contract, Plaintiff has suffered damages in the amount of $1,147.50, plus costs of suit. 12. As set forth Plaintiff has made repeated demands for payment to which the Defendants have refused or otherwise failed to pay or to state, what, if any, portion of the invoice or services performed was not in accord with the contractual specifications or were considered to be a "deficiency item" as defined in the Contractor and Subcontractor Payment Act. 13. As a result of the Defendants' failure to comply with the Contractor and Subcontractor Payment Act, Plaintiff is entitled to a penalty equal to 1% per month of the amount not paid from November 26, 2005 through trial and until time of payment and Plaintiff, if a recovery is awarded, is entitled to reasonable attorney's fees and expenses related to the prosecution of this matter. WHEREFORE, Plaintiff, Cassell Concrete, LLC, demands judgment in its favor and against Defendant, Farinelli Construction, Inc. in the amount of $1,147.50 plus a penalty of 1% per month on said amount until paid, plus reasonable attorney fees, litigation expenses and costs of suit. COUNT II - CASSELL VS DONALD J. FARINELLI, INDIVIDUALLY BREACH OF CONTRACT 14. Paragraphs 1 through 13 are incorporated herein as though set forth at length. 15. Defendant Donald J. Farinelli is the sole owner of the Defendant Farinelli Construction, Inc. and said construction company is in effect, his "alter ego" and he alone benefits from the use of Farinelli Construction, Inc., which is in effect no more than a corporate shell of his individual self. 16. Defendant Donald J. Farinelli individually personally represented to Plaintiff that he would ensure any and all obligations owed by his solely owned construction company would be paid. 17. As set forth Plaintiff has made repeated demands for payment to which the Defendants have refused or otherwise failed to pay or to state, what, if any, portion of the invoice or services performed was not in accord with the contractual specifications or were considered to be a "deficiency item" as defined in the Contractor and Subcontractor Payment Act. 18. As a result of the Defendants' failure to comply with the Contractor and Subcontractor Payment Act, Plaintiff is entitled to a penalty equal to I% per month of the amount not paid from November 26, 2005 through trial and until time of payment and Plaintiff, if a recovery is awarded, is entitled to reasonable attorney's fees and expenses related to the prosecution of this matter. WHEREFORE, Plaintiff Cassell Concrete, LLC, demands judgment in its favor and against Defendant Donald J. Farinelli individually in the amount of $1,147.50 plus a penalty of 1% per month on said amount until paid, plus reasonable attorney fees, litigation expenses and costs of suit. COUNT III - CASSELL VS. DONALD J. FARINELLI INDIVIDUALLY AND FARINELLI CONSTRUCTION, INC. UNJUST ENRICHMENT 19. Paragraphs 1 through 18 are incorporated herein by reference as though set forth at length. 20. Plaintiff provided materials and labor to Defendants in the amount of $1,147.50. 21. As a result of Defendants' failure to pay Plaintiff the balance of $1,147.50 Defendants have been unjustly enriched in the amount of $1,147.50. 22. Plaintiff conferred benefits on Defendants. 23. The benefits conferred were non-gratuitous. 24. There was an appreciation of those benefits by Defendants. 25. Acceptance and retention of these benefits by Defendants, under the circumstances, is inequitable and without payment of value. 26. As a result of Defendants' failure to pay Plaintiff, Defendants have been unjustly enriched in the amount of $1,147.50 plus interest of I% per month. WHEREFORE, Plaintiff, Cassell Concrete, LLC, demands judgment in its favor and against Defendant Donald J. Farinelli, individually and Defendant Farinelli Construction, Inc. in the amount of $1,147.50 plus a penalty of I% per month on said amount until paid, plus reasonable attorney fees, litigation expenses and costs of suit. Respectfully Submitted, By: Herbert P. Henderson, 11, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 I.D. # 56304 VERIFICATION I, Stephen P. Gift, hereby swear and affirm that I am the Managing Member of Cassell Concrete, LLC, Plaintiff herein, and that I am authorized on behalf of the Company to execute this verification. I hereby verify that all the information set forth within the preceding are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. CASSELL CONCRETE, LLC Date: Stephen P. Gift, nager Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 -------------- Eidl gyp" ? Attention: U t7ZRT Terms I Due Date 04/05/06 Quantity I Description 553.0 Garage Floor Invoice No.: 1227 Page No.: 1 Date: 04/05/06 Customer No.: 513 P.O. Number Salesperson Arborfield 17 Unit Price Extended Amount 2.35 SQ FT 1,299.55 Item Total 1,299.55 Plus Sales Tax 0.00 Invoice Total 1,299.55 EXHIBIT Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Attention: Terms Quantity I Description 553.0 Garage Floor Invoice No.: 1226 Page No.: 1 Date: 04/05/06 Customer No.: 513 Due Date P.O. Number 04/05/06 Arborfield 18 Unit Price 2.35 SQ FT Salesperson Extended Amount 1,299.55 Item Total 1,299.55 Plus Sales Tax 0.00 Invoice Total 1,299.55 RR5 z DO c:o O Co f^ vJ - -... 'i' fT7 O _ ? JC'7 ? ? T i r7 } W t€:i < . • 'A CASE NO: 2008-01033 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CASSELL CONCRETE LLC VS FARINELLI DONALD J ET AL 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 FARINELLI CONSTRUCTION INC the DEFENDANT , at 1015:00 HOURS, on the 15th day of February-, 2008 at 3 KACEY COURT SUITE 101 MECHANICSBURG, PA 17055 KIM NEGLEY by handing to 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 6.00 Service .00 Affidavit .00 Surcharge 10.00 a/a1 9- .00 16.00 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 02/19/2008 PECHT & ASSOCIATES By: Deputy Sheriff A. D. CASE NO: 2008-01033 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CASSELL CONCRETE LLC VS FARINELLI DONALD J ET AL 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 FARINELLI DONALD J the DEFENDANT at 3 KACEY CT STE 101 MECHANICSBURG, PA 17055-9221 by handing to KIM NEGLEY 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 10.56 Affidavit .00 Surcharge 10.00 38.56 Sworn and Subscibed to before me this day of at 1015:00 HOURS, on the 15th day of February-, 2008 So Answers: R. Thomas Kline 02/19/2008 PECHT & ASSOCIATES By. 9?__ Deputy 'Sheriff A. D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CASSELL CONCRETE, LLC, Plaintiff No. 08-1033 CIVIL TERM V. DONALD J. FARINELLI, individually and FARINELLI CONSTRUCTION, INC., Defendants PRAECIPE FOR ENTRY OF APPEARANCE TO: PROTHONOTARY Kindly enter my appearance in the above-referenced proceeding on behalf of Defendants, Donald J. Farinelli, individually, and Farinelli Construction, Inc. Respectfully submitted, McNEES WALLACE & NURICK LLC By mes W. K Attorney I. fl, o 47245 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants Dated: October 10, 2008 CERTIFICATE OF SERVICE I, Linda C. Sents, Legal Secretary to James W. Kutz, Esquire at McNees, Wallace & Nurick, hereby certify that on this date a true and correct copy of the foregoing document was served via U. S. Mail, First Class, postage prepaid, upon the following: Herbert P. Henderson, II, Esquire Pecht & Associates, PC 55 West high Street Elizabethtown, PA 17022 Date: October 13, 2008 Linda C. Sents rs al fT elf, :5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CASSELL CONCRETE, LLC, ; Plaintiff No. 08-1033 CIVIL TERM V. DONALD J. FARINELLI, individually and FARINELLI CONSTRUCTION, INC., Defendants NOTICE TO PLEAD TO: CASSELL CONCRETE, LLC and its attorney Herbert P. Henderson, II, Esquire YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. McNEES WALLACE & NURICK LLC By G44,W , ?eA / mes W. Kutz, Esquire 7 PA 47245 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5441 (phone) (717) 260-1714 (fax) jkutz@mwn.com Dated: October 13, 2008 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CASSELL CONCRETE, LLC, Plaintiff No. 08-1033 CIVIL TERM V. DONALD J. FARINELLI, individually and FARINELLI CONSTRUCTION, INC., Defendants ANSWER, NEW MATTER AND COUNTERCLAIM OF DEFENDANTS DONALD J. FARINELLI AND FARINELLI CONSTRUCTION INC. AND NOW come the Defendants, Donald J. Farinelli, individually (hereinafter "Don Farinelli"), and Farinelli Construction, Inc. (hereinafter "Farinelli Construction"), through their counsel, McNees Wallace & Nurick LLC, and hereby respond to Plaintiffs Complaint as follows: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that Don Farinelli is an adult individual who resides in Mechanicsburg, Pennsylvania. It is denied that the mailing address identified in Paragraph 3 is Don Farinelli's home mailing address. 4. Admitted in part and denied in part. It is admitted that Plaintiff was at one time in the concrete installation and construction business. However, at some point in 2006, Plaintiff abandoned some of its contractual responsibilities with respect to completing projects, and, upon information and belief, is no longer in the concrete installation and construction business. COUNTI Cassell v. Farinelli Construction, Inc. 5. Paragraphs 1 through 4 are hereby incorporated by reference as if fully set forth. 6. Admitted in part and denied in part. It is admitted that prior to April 5, 2006 Cassell Concrete, LLC and Farinelli Construction, Inc. entered into a contract whereby Plaintiff would provide certain concrete construction services requested by Farinelli Construction. It is denied that Plaintiff ever had a contract with Don Farinelli individually. It is further denied that all of the terms of the contract were oral. Indeed, Plaintiffs work was performed pursuant to a quotation provided by Cassell Concrete LLC to Farinelli Construction in August 2005, a copy of which is attached hereto as Exhibit A. 7. Admitted in part and denied in part. It is admitted that Plaintiff provided Farinelli Construction with some concrete construction labor services and materials, and it is admitted that Plaintiff issued invoices for the dates and the amounts set forth in Paragraph 7. It is denied that Plaintiff ever provided Don Farinelli individually with any such labor and materials, or ever issued Don Farinelli individually any such invoices. By way of further answer, it is denied that the amounts set forth in the invoices identified in Paragraph 7 are currently due and owing to Plaintiff, as more fully set forth herein. 8. Denied. It is specifically denied that Plaintiff provided as goods, materials, supplies and labor in a good and workmanlike manner to Farinelli Construction and it is further denied that Plaintiff performed its work in accordance with accepted principles in -2- the construction and concrete installation industry. To the contrary, as a result of certain deficiencies in Plaintiffs work, and as a result and certain delays in Plaintiff performing its work, Farinelli Construction incurred additional costs, which are more fully identified in the New Matter below, which is hereby incorporated by reference. Moreover, Plaintiff overbilled Farinelli Construction on numerous projects by overstating the amount of square footage performed, which is not in accordance with any principles of the construction and concrete installation industry. 9. Admitted in part and denied in part. It is admitted that Plaintiff issued Farinelli Construction invoices from time to time following performance of work by Plaintiff for Farinelli Construction. It is denied that Plaintiff ever issued Don Farinelli individually any statements or payment demands. It is similarly denied that Farinelli Construction has ever failed or refused to make any payments legitimately due Plaintiff. To the contrary, Plaintiff has been paid in full for all work that had been performed. By way of further answer, it is admitted that Plaintiff submitted the invoice to Farinelli Construction attached as Exhibit A to the Complaint. It is denied that any moneys are due and owing to Plaintiff under the terms of those invoices. 10. Denied. It is specifically denied that Defendant Farinelli Construction every failed to pay any amounts which were due to Plaintiff, and it is further denied that Defendant Farinelli Construction ever materially breached its contract with Cassell Concrete. It is further denied that all of the terms of the contract were oral, as said work was performed pursuant to the proposal attached hereto as Exhibit A. By way of further answer, it is denied that Plaintiff ever had a contract with Don Farinelli individually, and -3- thus any allegation that Don Farinelli individually has any obligation to pay these amounts is denied. 11. Denied. It is specifically denied that Farinelli Construction breached any contract between Cassell and Farinelli Construction, and it is further denied that Plaintiff has suffered any damages whatsoever as a result of any alleged breaches of contract. By way of further answer, it is denied that Plaintiff is ever entitled to its "costs of suit". By way of further answer, it is denied that Defendant Don Farinelli ever had a contract with Plaintiff, and therefore the remaining averments of Paragraph 11 are denied. 12. Denied. It is specifically denied that Plaintiff has made "repeated demands" for payment or that Defendant Farinelli Construction has ever improperly refused to make payments to Plaintiff. It is further denied that Defendant Don Farinelli individually had a contract with Plaintiff, and thus it is denied that Defendant Don Farinelli had any obligation whatsoever to Plaintiff to make payments. By way of further answer, it is specifically denied that Farinelli Construction has not identified the work which was not in accordance with contractual specifications that Plaintiff performed. To the contrary, representatives of Plaintiff were informed on numerous occasions in the spring of 2006 that work it had performed for Farinelli Construction was either not in conformance with specifications, or was not performed as scheduled, and that back charges would be imposed due to the extra costs incurred by Farinelli Construction. Notwithstanding repeated demands by Farinelli Construction for Plaintiff to perform its work as previously agreed to, Plaintiff failed in numerous instances to properly perform scheduled work. Representatives of Plaintiff were informed of these back charges when they occurred. Thereafter, in a gesture of good faith, Farinelli Construction -4- ultimately paid moneys to Plaintiff, notwithstanding that Farinelli Construction had legitimate back charges for same. By way of further answer, the remaining averments of Paragraph 12 constitute conclusions of law to which no response is required. To the extent a response is deemed required, it is denied that the Contractor and Subcontractor Payment Act applies to this contract, as more fully set forth in the New Matter below which is incorporated by reference. By way of further answer, it is denied that Defendant Don Farinelli had any contract with Plaintiff, and it is therefore denied that Defendant Don Farinelli has any obligations under the Payment Act. 13. Denied. Paragraph 13 avers a conclusion of law to which no response is required. Accordingly, the same is denied. To the extent a response is deemed necessary, it is specifically denied that Farinelli Construction failed to comply with the Contractor and Subcontractor Payment Act, and it is further denied that Farinelli Construction did not pay Cassell Concrete all of the moneys due and owing under the contract. It is further denied that Plaintiff is entitled to any penalties, interests or attorneys' fees under the Payment Act. Indeed, the Payment Act is not applicable to the contract between the parties. However, to the extent the Payment Act is applicable to the contract between the parties, it is Farinelli Construction which will be entitled to its reasonable attorneys' fees related to the defense of this matter. By way of further answer, it is denied that Defendant Don Farinelli had any contract with Plaintiff, and it is therefore denied that Defendant Don Farinelli has any obligations under the Payment Act. WHEREFORE, Defendant Farinelli Construction respectfully requests that Count I of Plaintiffs Complaint be dismissed, and that Farinelli Construction be awarded -5- reasonable attorneys' fees as a result of Plaintiffs baseless claim under the Payment Act. COUNT II Cassell v. Don J. Farinelli Individually Breach of Contract 14. Paragraphs 1 through 13 are incorporated by reference as though fully set forth. 15. Denied. Paragraph 15 avers a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is specifically denied that Farinelli Construction is the alter ego of Don Farinelli individually, and it is further denied that he alone benefits from the use of Farinelli Construction. It is further denied that Farinelli Construction is no more than a corporate shell of Don Farinelli's individual self. By way of further answer, Cassell Concrete entered into a contract with Farinelli Construction, as reflected by, among other things, the quotations attached hereto as Exhibit A. At no time did any representative of Cassell Concrete believe it was ever dealing or contracting with Don Farinelli individually and not Farinelli Construction. 16. Denied. Paragraph 16 avers a conclusion of law to which no response is required. By way of further answer, Don Farinelli made no such representations as averred in Paragraph 16 of Plaintiffs Complaint. By way of further answer, Paragraph 15 above is hereby incorporated by reference. 17. Denied. Paragraph 17 avers a conclusion of law to which no response is required. To the extent a response is deemed necessary, Defendant hereby incorporates Paragraphs 1 through 16 above as if fully set forth. -6- 18. Denied. Paragraph 18 avers a conclusion of law to which no response is required. To the extent a response is deemed necessary, Paragraphs 1 through 17 above are hereby incorporated by reference. WHEREFORE, Defendant Don Farinelli demands judgment in his favor and against Cassell Concrete, plus attorneys' fees and costs of suit as a result of the frivolous nature of Plaintiffs claim. COUNT III Cassell v. Donald J. Farinelli Individually and Farinelli Construction. Inc Uniust Enrichment 19. Paragraphs 1 through 18 above are hereby incorporated by reference as if fully set forth. 20. Admitted in part and denied in part. It is admitted that Plaintiff provided materials from time to time to Farinelli Construction. It is denied that any amount is due and owing from Farinelli Construction to Cassell Concrete which has not already been paid. By way of further answer, it is denied that Plaintiff ever provided materials and labor to Don Farinelli individually. 21. Denied. Paragraph 21 avers a conclusion of law to which no response is required. Accordingly, the same is denied. It is specifically denied that Farinelli Construction has refused to pay Plaintiff any amounts which are legitimately due and owing to Plaintiff, and it is further denied that Defendant Farinelli Construction has been unjustly enriched in any amount. By way of further answer, it is denied that Cassell Concrete ever conferred benefits on Don Farinelli individually. -7- 22. Denied. Paragraph 22 avers a conclusion of law to which no response is required. By way of further answer, Plaintiff has never conferred any benefits on Farinelli Construction which have not already been paid for by Farinelli Construction. Plaintiff never conferred any benefits on Defendant Don Farinelli individually. By way of further answer, Paragraphs 1 through 21 above are incorporated by reference. 23. Denied. Paragraph 23 avers a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied that any benefits were conferred to Farinelli Construction which were not already paid for by Farinelli Construction. By way of further answer, responses to Paragraphs 1 through 22 above are incorporated by reference. 24. Denied. Paragraph 24 avers a conclusion of law to which no response is required. To the extent a response is deemed necessary, it is denied that Defendant Farinelli Construction ever benefited from anything conferred by Plaintiff which were not already paid for by Farinelli Construction. It is specifically denied that Defendant Don Farinelli ever appreciated any benefits conferred by Plaintiff. By way of further answer, Paragraphs 1 through 23 above are incorporated by reference. 25. Denied. It is specifically denied that Defendant Farinelli Construction accepted or retained any benefit without paying fair value for them. To the contrary, any work performed or benefits conferred by Plaintiff to Defendant Farinelli Construction was paid for in full by Farinelli Construction. It is further denied that Plaintiff ever conferred any benefits on Don Farinelli individually. By way of further answer, Paragraphs 1 through 24 above are hereby incorporated by reference. -8- 26. Denied. It is specifically denied that Defendant Farinelli Construction has failed or refused to pay Plaintiff, and it is further denied that Farinelli Construction has been unjustly enriched in any amount. By way of further answer, Don Farinelli individually has never been conferred benefits by Plaintiff, therefore the averments of Paragraph 26 are denied. By way of further answer, Paragraphs 1 through 25 above are incorporated by reference. WHEREFORE, Defendants request judgment in their favor and against Plaintiff Cassell Concrete, LLC, and request that Counts I through III be dismissed, and that attorneys' fees and costs of suit be awarded to Defendants. NEW MATTER AND COUNTERCLAIM New Matter 27. Farinelli Construction and Cassell Concrete, LLC entered into a contract through which Cassell Concrete was to perform certain concrete installation work for Farinelli Construction on dates and times to be subsequently agreed upon by Farinelli Construction and Cassell Concrete. 28. As part of the contractual agreement between the parties, Plaintiff Cassell Concrete provided a quotation to Farinelli Construction for work on a square footage basis which is attached hereto as Exhibit A. 29. From the summer of 2005 to the spring of 2006, Cassell Concrete performed work from time to time as requested by Farinelli Construction. 30. In the spring of 2006, Cassell Concrete had committed to perform certain concrete work on several residences being constructed by Farinelli Construction, and -9- had committed to performing that work in a timeframe specifically agreed upon by the parties. 31. During the spring of 2006, Plaintiff Cassell Concrete breached its contract with Farinelli Construction in numerous respects, including the following: (a) material delays in performing promised work; (b) refusal to work when requested and promised; (c) effective work cycle; and (d) billing Farinelli Construction for work which had not been performed (i.e., overstating the square footage placed). 31. As a result of the breaches of contract set forth in the preceding paragraph, Farinelli Construction made many efforts to contact Plaintiff in an effort to complete its work as previously agreed. Notwithstanding these efforts, Plaintiff failed to complete its work as promised, and committed other breaches of contract as set forth above. 32. Accordingly, Defendant Farinelli Construction has suffered damages through, inter alia, having to perform corrective work, having work performed by others, having work performed out of sequence, and by paying Plaintiff over and above the square footage of work which was actually performed. 33. As a result of the breaches of contract as identified in the preceding paragraphs, and as a result of the costs to Farinelli Construction of these breaches of contract, Farinelli Construction incurred damages in excess of any outstanding balance allegedly due and owing to Cassell Concrete as reflected in the invoices identified in -10- Paragraph 7 of Plaintiffs Complaint. Accordingly, no money was due and owing under those invoices. 34. In an effort to resolve the dispute between the parties amicably, Farinelli Construction paid Cassell Concrete $1,451.60 in November 2007, and in doing so assessed only some of the legitimate back charges it was entitled to assess. 35. Farinelli Construction has paid Cassell Concrete all sums due and owing under the contract, and, to the extent any moneys are allegedly due and owing, Farinelli Construction is entitled to payment of that amount as a result of Plaintiffs breaches of contract. 36. Count I of Plaintiffs Complaint fails to state a cause of action for which relief can be granted. 37. Count II of Plaintiff's Complaint fails to state a cause of action for which relief can be granted. 38. Count III of Plaintiffs Complaint fails to state a cause of action for which relief can be granted. 39. To the extent Plaintiffs Complaint seeks damages under the Contractor and Subcontractor Payment Act, Section 503 of the Act (73 P.S. §503) specifically provides that the Act is not applicable when six or fewer residential units are under construction simultaneously. 40. The work performed by Cassell Concrete for Farinelli Construction all involved residential units. 41. In April 2005, Cassell Concrete was not performed work on seven or more residential units simultaneously. - 11 - 42. Accordingly, the Payment Act does not apply to the contract between Farinelli Construction and Cassell Concrete. 43. To the extent the Payment Act is held by this Honorable Court to apply to the contract between Cassell Concrete and Farinelli Construction, Farinelli Construction identified numerous deficiency items to Cassell Concrete in April of 2006 as the basis for withholding payment. 44. At no time in April 2006, or for 15 months thereafter, did Plaintiff ever object to Farinelli Construction holding money for the deficiency items. 45. Accordingly, to the extent the Payment Act applies, Farinelli Construction held money as a good faith claim for deficiency items identified to Plaintiff. 46. Accordingly, Plaintiffs claims under the Payment Act must fail because, inter alia, the Act does not apply, and if the Act does apply, the claims were for funds held in good faith for deficiency items. Moreover, no claim under the Payment Act can be brought because no moneys are due and owing to Plaintiff. 47. To the extent that Farinelli Construction is the prevailing party in the underlying action, for whatever reason, Farinelli Construction is entitled to its attorneys' fees. 48. At no time did Plaintiff ever enter into a contract with Don Farinelli individually. 49. At no time did Don Farinelli individually represent to Plaintiff that he personally would be responsible for any debts of Farinelli Construction allegedly due and owing to Plaintiff. -12- WHEREFORE, Defendants respectfully request judgment in their favor and against Plaintiff with respect to Counts I through III of the Complaint. Counterclaim Farinelli Construction v. Cassell Concrete 50. Paragraphs 1 through 49 above are hereby incorporated by reference as if fully set forth. 51. As a result of breaches of contract by Plaintiff, as more fully set forth above, Defendant Farinelli Construction has incurred damages which have not yet been fully calculated, but which are expected to exceed at least $1,000. 52. As a result of Plaintiffs actions, Defendant Farinelli Construction is entitled to damages for defective work performed by Plaintiff, lost profit, other intangible costs and overpayments made by Farinelli Construction to Plaintiff for work not performed. These costs are reasonably expected to exceed $1,000. 53. To the extent that subsequent discovery reveals that the overbilling of various projects were done fraudulently, Farinelli Construction reserves the right to amend its Complaint to counts for fraud. 54. To the extent the Contractor and Subcontractor Payment Act is held to apply to this contract, Farinelli Construction is entitled to reasonable attomeys' fees under the terms of the Payment Act as the prevailing party. -13- WHEREFORE, Farinelli Construction respectfully requests judgment in its favor, and against Cassell Concrete, in an amount in excess of $1,000, plus attorneys' fees and costs of suit. Respectfully submitted, McNEES WALLACE & NURICK LLC By !/ 4 1 Parries utz Attorney I.D. No. 47245 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants Dated: October 10, 2008 -14- VERIFICATION Subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities, I hereby certify that I am President of Farineill ConstnuAion, Inc., and am authorized to execute this Verification on its behalf, and that the facts set forth in the foregoing documwt are true and correct to the best of my knowledge, information and belief. a& I Donald J. FarinellI CERTIFICATE OF SERVICE I, Linda C. Sents, Legal Secretary to James W. Kutz, Esquire at McNees, Wallace & Nurick, hereby certify that on this date a true and correct copy of the foregoing document was served via U. S. Mail, First Class, postage prepaid, upon the following: Herbert P. Henderson, II, Esquire Pecht & Associates, PC 55 West high Street Elizabethtown, PA 17022 Date: October 13, ?- ????/ 3, 2008 Linda C. Sents t t t? 3 -c? . 733 (David D. Bueff Prothonotary lUrkS. Sohonage, ESQ, Solicitor Wfnee X Simpson Ft Deputy Prothonotary Irene E. Morrow 2"d Deputy Prothonotary Office of the Prothonotary Cum6erfand County, Pennsylvania 08-/0-33 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 25TH DAY OF OCTOBER, 2011, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P 230.2 BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 • CarCisfe, PA 17013 • (717 240-6195 • FaX (717 240-6573