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HomeMy WebLinkAbout08-10380 - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CASSELL CONCRETE, LLC, Plaintiff No. 08- '11)Z8 C iV t (Tem vs. JOHN BOTTARO and SUSAN BOTTARO Individually and d/b/a BOTTARO CONSTRUCTION, 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: 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, Plaintiff No. D9- lb 3 p Ct,? Tom., vs. JOHN BOTTARO and SUSAN BOTTARO Individually and d/b/a BOTTARO CONSTRUCTION, Defendants COMPLAINT 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. Defendants John Bottaro and Susan Bottaro are adult individuals with a last known mailing address of 719 Ridge Road, Lewisberry, Pennsylvania 17339, now or previously doing business as Bottaro Construction. 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. COUNTI BREACH OF CONTRACT 4. Paragraphs 1 through 4 are incorporated herein by reference as though set forth at length. 5. Commencing in the summer of 2007, Plaintiff and Defendants entered into a series of oral contracts whereby Plaintiff was to provide certain concrete installation and or construction services for Defendants. 6. At all times relevant hereto, Plaintiff provided all supplies , materials and labor in a good and workmanlike manner and in accordance with accepted principles of construction within the concrete installation and construction industry. 7. Plaintiff provided Defendants with certain concrete constru ction labor services and materials and issued Defendants statements as follows: , , Statement Date Job Identification Contract Price a. July 19, 2007 Hill Side Entrance b. July 20, 2007 Hill Side 13 $2,240.00 c. July 20, 2007 Hill Side 16 $5,500.00 $1 040 00 d. July 20, 2007 Hill Side 15 , . $1 088 00 e. September 6, 2007 HSV Sidewalks , . $1,120.00 TOTAL $10,998.00 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 convect copy of the Invoices issued totaling $10,988.00 are attached hereto, and incorporated herein by reference as though set forth at length and marked collectively as Exhibit "A". 9. Defendants' failure to pay all of the invoices when due is a material breach of the parties' oral contract. 10. As a result of Defendants' breach of the parties' oral contract, Plaintiff has suffered damages in the amount of $1,088. 11. 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. 12. 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 September 5, 2007 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, Cassel Concrete, LLC, demands judgment in its favor and against Defendants John Bottaro and Susan Bottaro individually and d/b/a Bottaro Construction, in the amount of $1,088 plus a penalty of 1% per month on said amount until paid, plus reasonable attorney fees, litigation expenses and costs of suit. COUNT U UNJUST ENRICHMENT 13. Paragraphs 1 through 12 are incorporated herein by reference as though set forth at length. 14. Plaintiff conferred benefits on Defendants. 15. The benefits conferred were non-gratuitous. 16. Plaintiff provided materials and labor to Defendants in the amount of $10,988.00. 17. As a result of Defendants' failure to pay Plaintiff the balance of $1,088.00, Defendants have been unjustly enriched in the amount of $1,088. 18. There was an appreciation of those benefits by Defendants. 19. Acceptance and retention of these benefits by Defendants, under the circumstances, is inequitable and without payment of value. 20. As a result of Defendants' failure to pay Plaintiff, Defendant has been unjustly enriched in the amount of $1,088. WHEREFORE, Plaintiff, Cassel Concrete, LLC, demands judgment in its favor and against Defendants John Bottaro and Susan Bottaro individually and d/b/a Bottaro Construction, in the amount of $1,088 plus a penalty of 1% per month on said amount until paid, plus reasonable attorney fees, litigation expenses and costs of suit. Respectfully Submitted, By:_. d Herbert P. Henderson, II, 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, Man ger Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Bill Tg n F w zk?Y' r ? ? 4 1 Attention: Invoice No.: 1474 Page No.: 1 Date: 07/19/07 Customer No.: 514 Terms Due Date 07/19/07 P.O. Number Hillside Entranc Salesperson Quantity Description Unit Price Extended Amount 280.0 Sidewalks 280.0 Sidewalks 4.00 SQ FT 4.00 SQ FT 1,120.00 1,120.00 2,240.00 0.00 2,240.00 Item Total Plus Sales Tax Invoice Total EXHIBIT EA Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Bilk Td,? -?{ ?ter Attention: Invoice No.: 1472 Page No.: 1 Date: 07/20/07 Customer No.: 514 Terms Due Date 07/20/07 P.O. Number Hill Side 13 Salesperson Quantity Description Unit Price Extended Amount 2,000.0 Basement Floor 2.75 SQ FT 5,500.00 Item Total 5,500.00 Plus Sales Tax 0.00 Invoice Total 5,500.00 Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Aft Attention: Invoice No.: 1476 Page No.: 1 Date: 07/20/07 Customer No.: 514 Terms Due Date 07/20/07 P.O. Number Hill Side 15 Salesperson Quantity Description Unit Price Extended Amount 200.0 Street Walk 32.0 Porch 40.0 Lead Walk 4.00 SQ FT 800.00 4.00 SQ FT 128.00 4.00 SQ FT 160.00 Item Total 1,088.00 Plus Sales Tax 0.00 Invoice Total 1,088.00 Cassell Concrete, LLC Invoice No.: 1475 1205 Manor Dr, Suite 100 Page No.: 1 Mechanicsburg, PA 17055 Date: 07/20/07 Customer No.: 514 Phone: 717 766-3555 Fax: 717 766-4005 Sill TO; Attention: Terms Due Date 07/20/07 P.O. Number Hill Side 16 Salesperson Quantity Description Unit Price Extended Amount 120.0 Street Walk 4.00 SQ FT 480 00 48.0 Patio 4.00 SQ FT . 192 00 60.0 Lead Walk 4.00 SQ FT . 240 00 32.0 Porch 4.00 SQ FT . 128.00 Item Total 1,040.00 Plus Sales Tax 0.00 Invoice Total 1,040.00 Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 y x Attention: Invoice No.: 1502 Page No.: 1 Date: 09/06/07 Customer No.: 514 Terms Due Date 09/06/07 P.O. Number HSV Sidewalks Salesperson Quantity Description Unit Price Extended Amount 280.0 Sidewalks 4.00 SQ FT 1,120.00 Item Total 1,120.00 Plus Sales Tax 0.00 Invoice Total 1,120.00 ?J Ce> n d'Z"} ZZ C4 D I SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-01038 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CASSELL CONCRETE LLC VS BOTTARO JOHN ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT BOTTARO JOHN , to wit: but was unable to locate Him deputized the sheriff of YORK in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On March 7th , 2008 -this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing Out of County Surcharge Dep York County Postage So answe _ 18.00 9.00 10.00 R. Thomas K1'ne 59.20 Sheriff of Cu erland County 2.84 99.04 03/07/2008 PECHT & ASSOCIATES Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-01038 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CASSELL CONCRETE LLC VS BOTTARO JOHN ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: BOTTARO SUSAN but was unable to locate Her in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within COMPLAINT & NOTICE On March 7th , 2008 this office was in receipt of the attached return from YORK Sheriff's Costs: So answers;-- Docketing 6.00 Out of County .00 -? Surcharge ?"??? -10.00 R. Thomas Kline .00 Sheriff of Cumberland County .00- ? 3/2@Q ?w„ 16.00 03/07/2008 PECHT & ASSOCIATES Sworn and subscribe to before me this day of , A.D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-01038 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CASSELL CONCRETE LLC VS BOTTARO JOHN ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT BOTTARO SUSAN D/B/A BOTTARO CONSTRUCTION but was unable to locate Her deputized the sheriff of YORK to wit: in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On Marc 7th , 2008 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing Out of County Surcharge So answer f 6.00 00 10.00 R. Thomas Kline .00 Sheriff of Cumberland County .0- 16.00 0 ? l1x?DY ;L 03/07/2008 PECHT & ASSOCIATES Sworn and subscribe to before me this day of A.D. COUNTY OF YORK 10F3 OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 i SERVICE CALL. (717) 771-9601 SHERIFF SERVICE INSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINE 1 THRU 12 DO NOT DETACH ANY COPIES 1 PLAINTIFF/S/ Cassell Concrete LLC 3 DEFENDANT/S/ John Bottaro et al 2 COURT NUMBER V0-1VJ0 %I-LV1. TYPE OF WRIT OR COMPLAINT Notice & Complaint CTCA 4 SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD John Bottaro 6 ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO, CITY, BORO. TWP, STATE AND ZIP CODE) AT 719 Ride Road Lewisbe , PA 17339 7. INDICATE SERVICE U PERSONAL O PERSON IN CHARGE AZi2bEPUTIZE TAfIL?n? O 1ST CLASS MAIL O POSTED U OTHER NOW February 15, .20 08 I, SHERIFF OF4 COUNTY, PA, do hereby deputize the sheriff of York COUNTY to execute this" a return ther ording to law. This deputization being made at the request and risk of the plaintiff.,` SHERIFF OF O T-Y- 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE 0/C Culberland Please mail return of service to Cmberland County Sheriff. Thank you. ADV FEE PD BY CUMBERLAND CO SHERIFF NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sherrff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriff's sale thereof 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11 DATE FILED HERBERT P HENDERSON II ESQ 55 W HIGH ST ELIZABETHTOWN PA 717-367-2800 2/14/08 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW. (This area must be completed if notice is to be mailed) CUMBERLAND CO SHERIFF ONE COURTHOUSE SQUARE CARLISLE PA 17013 SPACE BELOW FOR USE OF THE SHERIFF - DO NOT WRITE BELOW TM LIM 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15 Expiration/Hearing Date or complaint as indicated above. T M M C G I L L 12/19/08 1 3/15/08 16 . HOW SERVED: PERSONAL( ) RESIDENCE ( POSTED( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW 17. O 1 hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 18. NAME TITLE OF 1 IVIDU ERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) S z o,, d? e ) ,,) wi ; ?' 19. Date of Service 2 -O 20 Time of Service I z: ss47m 21. ATTEMPT ale Time Miles Int Date Time Miles Int. Dale Time Miles Int. Dale Time Miles Int. Date Time Miles Int. Date Time Miles Int q() 22. REMARKS -IN 23. Advance Costs 24 Service Costs 25. N/F 26. Mileage 27 Postage 28. Sub Total 29. Pound 30. Notary 31. Surchg. 32. Tor. Costs 33 Costs Due efun Check No 150.00 3 ©-00 p <5c, UO 34. Foreign County Costs 35. Advance Costs 36 Service Costs 37. Notary Cert. 38. Mleage/PostagetNot Found 39. Total Costs 40. Costs Due or Refund 4 t h O ANSWERS 41. AFFIRM and subscribed to bef re me this N1Ib THO' P 44. Signature of 45. DATED p, 42 day Dep. Sheriff O Z> NOTARIAL SEAL"'- "" " / NOTA 46. Signature of York 47. DATE LISA L. BO'."f->`AN, NOTARY PUBLIC CITYO-YORK, YORK COUNTY County Sheriff RICHARD P. KEUER EBER, 5-HEf IL FF 3-4-2008 MY COMMISSION E PiRES AUG. 12, 2009 48 Signature of Foreign 49 DATE County Sheriff 50. 1 ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE 151 DATE RECEIVED OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. WHITE - Isswng Authority 2. PINK - Attorney 3. CANARY -Sheriff's Office 4. BLUE - Shenffs Office ,a C^S' n ? s { 1 _.? ?._? .. ?., 4 ? '?_, r -- - ? ?y ; , ._, ;.... 20F3 COUNTY OF YORK OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 1-7 1 SERVICE CALL (717) 771-9601 INSTRUCTIONS SHERIFF SERVICE PLEASE TYPE ONLY LIM 1 THRU 12 PROCESS RECEIPT and AFFIDAVIT OF RETURN DO NOT DETACH ANY COPIES 1 PLAINTIFF/S! 2 COURT NUMBER 08-1038 civil ete LLC C ll C asse oncr TYPE OF WRIT OR COMPLAINT 4 3 DEFENDANT/S! . C I CA John Bottaro et al Notice and Complaint SERVE 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DES CRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD Susan Bottaro 6 ADDRESS (STREET OR RFO WITH BOX NUMBER. APT NO, CITY, BORO, TWP. STATE AND ZIP CODE) AT 719 Ridge Road Lewisberry, PA 17339 7. INDICATE SERVICE: O PERSONAL O PERSON IN CHARGE XQEPUTIZE O ER MAI O 1ST CLASS MAIL O POSTED 0 OTHER NOW February 15 2008 I, SHERIFF OF .,? hereby deputize the sheriff of COUNTY, PA, ?,d? , York COUNTY to execute t f;difake return th ccording to law. This deputization being made at the request and risk of the plaintiff. SHERIFF OF 411111111W COUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE 0 Cumberland Please mail return of service to Cunberland County Sheriff. Thank you. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment. without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE HERNERT P HENDERSON II ES 10. TELEPHONE NUMBER 1 11 DATE FILED 717-367-2800 2/14/08 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed) CUMBERLAND CO SHERIFF OF THE SHERIFF - 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15. Expiration/Hearing Date or complaint as indicated above. LT M M C G I LL 2/1 9/ 08 3/15/08 16. HOW SERVED PERSONAL (,+-" RESIDENCE ( POSTED( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW IT O 1 hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 22. REMARKS: 23. Advance Costs 24 Service Costs 25 N/F 26. Mileage 27. Postage 28. Sub Total 29. Pound 30 Notary 31. Surchg. 32 Tot. Costs 33 Costs Due or Refund Check No 34. Foreign County Costs 35. Advance Costs 36 Service Costs 37 Notary Cert. 38 Mileage/Postage/Not Found 39. Total Costs 40 Costs Due or Refund t h SO ANSWERS 41. AFFIRMED and subscribed to bef a me this 1?,? o r 44. Signature of 45. D?1CE 42. day of M ????*tiw3. 2D? Dep. Sheriff ((?.JJ ??(( / NO I A NOTARIAL SEAL = i 46. Signature of York q 47 DATE LISA L. BOWA.^:AN, ` QTARY PUBLIC ! Coun Sheriff R I C H RD P. K U B R S H F -3-4-2008 YORK COUNTY CITY OF YORK , MY COMMISSION EXPIPES AU. 12, 2009 48. Signature of Foreign 49 DATE County Sheriff 50. I ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE I 51 UA1 It NtGEiVtU OF AUTHORIZED ISSUING AUTHORITY AND TITLE V WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY -Sheriff's Office 4. BLUE - Shears Office I ??, ? t .? ®? s f S? kk COUNTY OF YORK 30F3 OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 w y SERVICE CALL (717) 771-9601 SHERIFF SERVICE INSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINE 1 THRU 12 DO NOT DETACH ANY COPES 1 PLAINTIFF/S/ 2 COURT NUMBER Cassell Concrete LLC 08-3038 4. TYPE OF WRIT OR COMPLAINT 3. DEFENDANT/S/ C I CA John Bottaro et al Notice sand Complaint SERVE 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD Susan Bottaro d/b/a Bottaro Construction 6 ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO, CITY, BORO. TWP, STATE AND ZIP CODE) AT 719 Ridge Road Lewisberry, PA 17339 7. INDICATE SERVICE' O PERSONAL O PERSON IN CHARGE XN)PEPUTIZE ?E[[T MAIL, O 1 ST CLASS MAIL O POSTED O OTHER NOW February 15, 2008 I, SHERIFF 01 I_ COUNTY, PA, do hereby deputize the sheriff of York COUNTY to execute this W! . P-MaWeturn thereof aaSprding to law. This deputization being made at the request and risk of the plaintiff. SHERIFF N 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE. O/C Please mail return of service to Cumberland County Sheriff. Think you. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction. or removal of any property before sheriff's sale thereof 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11. DATE FILED HERBERT P HENDERSON II ESQ 717-367-280 2/14/08 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). CUMBERLAND CO SHERIFF SPACE BELOW FOR USE OF THE SHERIFF - DO NOT WRITE BELOW THIS LV4E 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15. Expiration/Hearing Date or complaint as indicated above. LT M M C G I L L 2/19/08 3/15/08 16. HOW SERVED PERSONAL ( RESIDENCE ( POSTED( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BELOW IT O 1 hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 18. NAME AND TITLE OF INDIVIDUAL SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19. Date of Service 20 Time of Service J {t c? +L T )'-23 ? ?Z ' 55P/1 u.,, " i .d o w; 0 w1111-L . , 21. A E TS Date Time Mi Int. Date Time Miles Int. Date Time Miles Int. Date Time Miles Int. Date Time Miles Int Date Ti T TInt 22. REMARKS: _ 23. Advance Costs 24 Service Costs 25 N/F 26. Mileage 27 P 28. Sub Total 29. Pound 30 Notary 31. Surchg. 32 Tot. Costs 33 Costs Due or Refund Check No U. Foreign County Costs 35. Advance Costs 36 Service Costs ary Cert. 37. 38 M4eage/Postage/Not Found 39. Total Costs 40. Costs Due or Refund ?1 AFFIRMED CaQNd6ftbW AhRHA SO ANSWERS . 3 42 d f 44. Signature of 45. DBE . ay o 20 4 r" 1 /k Dep. Sheriff e `- / NOTARY LISA L. B01 :AN, NOTA Y PUBLIC ? 46. Signature otYork 0 7 47. DATE CITY 0 YORK, YORK COUNTY 1 ' RICounty CHARD P 0 - B R S F 3-4-2008 MYCC 'M'V1!S :0NEXP'.RESAUG.12,2009 . , 48. Signature of Foreign 49 DATE County Sheriff .. c nc?.ur i yr , nc ancrarr a rcc ?r<rv awnr? vice 151, UA1 E HEGEIVED OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY -Sheriff's Office 4. BLUE - Sherdrs Office -_,z 4 I William L. Adler, Esquire ADLER & ADLER 125 Locust St. Harrisburg, PA 17101 Phone: 717-234-3289 Fax: 717-234-1670 Email: wmadler(rr?adlerandadler.net Supreme Court ID: 39844 Cassell Concrete, LLC Plaintiff IN THE COURT OF COMMON PLEAS Cumberland COUNTY, PENNSYLVANIA V. John Bottaro and Susan Bottaro and Bottaro Construction, Defendants : CIVIL ACTION - LAW NO. 08-1038 PRELIMINARY OBJECTIONS AND NOW COMES the Defendants, through their attorneys, Adler & Adler, and respectfully represents the following: 1. Pursuant to PARCP 1028(3), the pleading is insufficiently specific for the following reasons: a. Susan Bottaro is named as a defendant, yet the invoices and all dealings were with Bottaro Construction. b. The complaint is not specific enough to state a cause of action against Susan Bottaro or John Bottaro. c. The complaint fails to state the nature of the entity of Bottaro Construction. 2. The Complaint is legally deficient pursuant to Pa.R.C.P. 1028(4) for the following reasons: a. Plaintiffs allege unjust enrichment. b. Plaintiffs have alleged an oral contract. c. Unjust enrichment cannot be granted where a contract exists. WHEREFORE, Plaintiffs respectfully request that plaintiffs complaint be dismissed. William L. Adler, Esquire Attorney for Plaintiff ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, PA 17108 717-234-3289 Supreme Court ID Number 39844 Wmadler@adlerandadler.net March 17, 2008 ..i . ? s CERTIFICATE OF SERVICE I, William L. Adler, Esquire, Attorney for Defendants, hereby certify on the day of , 2008, I served a copy of the within preliminary objections upon the following person by first class mail, postage prepaid, addressed as follows: Herbert P. Henderson, II, Esquire PECHT & ASSOCIATES, PC 55 West High St. Elizabethtown, PA 17022 William L. Adler, Esquire c-? ? S? r_w, ?, ??? Cdr _ f? '^r ,? 7 'r _? %:7 ??7 ?a "ii_T, ?`' .' i, - -? " '?`? f --- --, :°r G': IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CASSELL CONCRETE LLC, Plaintiff No. 08-1038 VS. JOHN BOTTARO and SUSAN BOTTARO Individually and d/b/a BOTTARO CONSTRUCTION, Defendant 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 Amended 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: Herbert P. Henderson, H, 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, Plaintiff No. 08-1038 vs. JOHN BOTTARO and SUSAN BOTTARO Individually and d/b/a BOTTARO CONSTRUCTION, Defendant AMENDED 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. Defendants John Bottaro and Susan Bottaro are adult individuals with a last known mailing address of 719 Ridge Road, Lewisberry, Pennsylvania 17339. 3. Defendant herein is Bottaro Construction, is believed and therefore averred to be a sole proprietorship owned and operated by John Bottaro and Susan Bottaro. 4. At all times relevant hereto Plaintiffs were in the business of providing materials, supplies and labors in the commonly referred to as concrete construction business. COUNTI BREACH OF CONTRACT 5. Paragraphs 1 though 4 are incorporated herein by reference as though set forth at length. 6. Commencing in the Summer of 2007, Plaintiff and Defendants entered into a series of oral contracts whereby Plaintiff was to provide certain concrete installation and or construction services for Defendants. 7. At all times relevant hereto, Plaintiff provided all supplies, materials and labors in a good and workmanlike manner and in accordance with accepted principles of construction within the concrete installation and construction industry. 8. Plaintiff provided Defendants with certain concrete construction labor, services, and materials and issued Defendants statements as follows: Statement Date a. July 19, 2007 b. July 20, 2007 c. July 20, 2007 d. July 20, 2007 e. September 6, 2007 TOTAL $10,998.00 9. Plaintiff has issued Defendants a series of statements and demanded payment but Defendants have failed or otherwise refused to make payment. A true and correct copy of the Invoices issued totaling $10,988.00 are attached hereto, and incorporated herein by reference as though set forth at length and marked collectively as Exhibit "A» 10. Defendants' failure to pay the invoices when due 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 $10,988.00. 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 September 5, 2007 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, Cassel Concrete, LLC, demands judgment in its favor and against Defendants, John Bottaro and Susan Bottaro individually and d/b/a Bottaro Construction, in the amount of $10,988.00 plus a penalty of 1% per month on said amount until paid, plus reasonable attorney fees, litigation expenses and costs of suit. COUNT II UNJUST ENRICHMENT 14. Paragraphs 1 through 13 are incorporated herein by reference as though set forth at length. Job Identification Contract Price Hill Side Entrance $2,240.00 Hill Side 13 $5,500.00 Hill Side 16 $1,040.00 Hill Side 15 $1,088.00 HSV Sidewalks $1,120.00 15. Plaintiff conferred benefits on Defendant. 16. The benefits conferred were non-gratuitous. 17. Plaintiff provided materials and labor to Defendants in the amount of $10,988.00. 18. As a result of Defendants' failure to pay Plaintiff the $10,988.00, Defendants' have been unjustly enriched in the amount of $10,988.00. 19. There was an appreciate of those benefits by Defendant. 20. Acceptance and retention of these benefits by Defendant, under the circumstances, is inequitable and without payment of value. 21. As a result of Defendants' failure to pay Plaintiff, Defendant has been unjustly enriched in the amount of $10,988.00. WHEREFORE, Plaintiff, Cassel Concrete, LLC, demands judgment in its favor and against Defendants, John Bottaro and Susan Bottaro individually and d/b/a Bottaro Construction, in the amount of $10,988.00 plus a penalty of 1% per month on said amount until paid, plus reasonable attorney fees, litigation expenses and costs of suit. Respectfully Submitted, By: Herbert P. HenTerson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 I.D. # 56304 VERIFICATION HERBERT P. HENDERSON, II, ESQUIRE, being duly affirmed according to law deposes that he is the attorney for the Plaintiff, Cassell Concrete, LLC, in the within matter; that said Plaintiff cannot make the Verification to this Amended Complaint because a Verification cannot be obtained at present, that he has made diligent inquiry of the Plaintiff and upon the information received believes the facts set forth to be true. Herbert P. Henderson, II Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Attention: Invoice No.: 1474 Page No.: 1 Date: 07/19/07 Customer No.: 514 Terms Due Date 07119/07 P.O. Number Hillside Entranc Salesperson Quantity Description Unit Price Extended Amount 280.0 Sidewalks 280.0 Sidewalks 4.00 SQ FT 1,120.00 4.00 SQ FT 1,120.00 Item Total 2,240.00 Plus Sales Tax 0.00 Invoice Total 2,240.00 PF Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Attention: Invoice No.: 1472 Page No.: 1 Date: 07/20107 Customer No.: 514 Terms Due Date 07/20/07 P.O. Number Hill Side 13 Salesperson Quantity Description Unit Price Extended Amount 2,000.0 Basement Floor 2.75 SQ FT 5,500.00 Item Total 5,500.00 Plus Sales Tax 0.00 Invoice Total 5,500.00 Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Attention: Invoice No.: 1476 Page No.: 1 Date: 07/20/07 Customer No.: 514 Terms 7 Due Date 07/20107 P.O. Number Hill Side 15 Salesperson Quantity Description Unit Price Extended Amount 200.0 Street Walk 4.00 SQ FT 800.00 32.0 Porch 4.00 SQ FT 128.00 40.0 Lead Walk 4.00 SQ FT 160.00 Item Total 1,088.00 Plus Sales Tax 0.00 Invoice Total 1,088.00 Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Attention: Invoice No.: 1475 Page No.: 1 Date: 07/20/07 Customer No.: 514 Terms Due Date 07/20/07 P.O. Number Hill Side 16 Salesperson Quantity Description Unit Price Extended Amount 120.0 Street Walk 4.00 SO FT 480.00 48.0 Patio 4.00 SO FT 192.00 60.0 Lead Walk 4.00 SO FT 240.00 32.0 Porch 4.00 SO FT 128.00 Item Total 1,040.00 Plus Sales Tax 0.00 Invoice Total 1,040.00 Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Attention: Invoice No.: 1502 Page No.: 1 Date: 09/06/07 Customer No.: 514 Terms Due Date 09/06/07 P.O. Number HSV Sidewalks Salesperson Quantity Description Unit Price Extended Amount 280.0 Sidewalks 4.00 SQ FT 1,120.00 Item Total 1,120.00 Plus Sales Tax 0.00 Invoice Total 1,120.00 r. fi ?? - % William L. Adler, Esquire ADLER & ADLER 125 Locust St. Harrisburg, PA 17101 Phone: 717-234-3289 Fax: 717-234-1670 Email: wmadler(adlerandadlennet Supreme Court ID: 39844 Cassell Concrete, LLC Plaintiff IN THE COURT OF COMMON PLEAS Cumberland COUNTY, PENNSYLVANIA V. John Bottaro and Susan Bottaro and Bottaro Construction, Defendants CIVIL ACTION - LAW :NO. 08-1038 PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT AND NOW COMES the Defendants, through their attorneys, Adler & Adler, and respectfully represents the following: 1. Pursuant to PARCP 1028(3), the pleading is insufficiently specific for the following reasons: a. Susan Bottaro is named as a defendant, yet the invoices and all dealings were with Bottaro Construction. b. The complaint is not specific enough to state a cause of action against Susan Bottaro or John Bottaro. c. The complaint fails to state the nature of the entity of Bottaro Construction. d. Minimal research would have revealed that Bottaro Construction Company was and is a Pennsylvania corporation formed in 1987. 2. The Complaint is legally deficient pursuant to Pa.R.C.P. 1028(4) for the following reasons: a. Plaintiffs allege unjust enrichment. b. Plaintiffs have alleged an oral contract. c. Unjust enrichment cannot be granted where a contract exists. d. Insufficient facts have been alleged to support a claim under the Contractor and Subcontractor Payment Act. WHEREFORE, Plaintiffs respectfully request that plaintiffs complaint be dismissed. VJA' aii? William L. Adler, Esquire Attorney for Plaintiff ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, PA 17108 717-234-3289 Supreme Court ID Number 39844 Wmadler@adlerandadler.net June 16, 2008 CERTIFICATE OF SERVICE I, William L. Adler, Esquire, Attorney for Defendants, hereby certify on the Z77 day of t A ? 2008, I served a copy of the within preliminary objections upon the following person by first class mail, postage prepaid, addressed as follows: Herbert P. Henderson, II, Esquire PECHT & ASSOCIATES, PC 55 West High St. Elizabethtown, PA 17022 William L. Adler, Esquire C,- -ta yr, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CASSELL CONCRETE LLC, Plaintiff No. 08-1038 VS. JOHN BOTTARO Individually and d/b/a BOTTARO CONSTRUCTION, Defendant 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 Amended 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: 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, Plaintiff No. 08-1038 VS. JOHN BOTTARO Individually and d/b/a BOTTARO CONSTRUCTION, Defendant SECOND AMENDED 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 John Bottaro is an adult individual with a last known mailing address of 719 Ridge Road, Lewisberry, Pennsylvania 17339. 3. Defendant herein is Bottaro Construction, is believed and therefore averred to be a sole proprietorship owned and operated by John Bottaro. 4. At all times relevant hereto Plaintiffs were in the business of providing materials, supplies and labors in the commonly referred to as concrete construction business. COUNTI BREACH OF CONTRACT 5. Paragraphs 1 though 4 are incorporated herein by reference as though set forth at length. 6. Commencing in the Summer of 2007, Plaintiff and Defendant entered into a series of oral contracts whereby Plaintiff was to provide certain concrete installation and or construction services for Defendant. 7. At all times relevant hereto, Plaintiff provided all supplies, materials and labors in a good and workmanlike manner and in accordance with accepted principles of construction within the concrete installation and construction industry. 8. Plaintiff provided Defendant with certain concrete construction labor, services, and materials and issued Defendants statements as follows: Statement Date a. July 19, 2007 b. July 20, 2007 c. July 20, 2007 d. July 20, 2007 e. September 6, 2007 TOTAL $10,998.00 9. Plaintiff has issued Defendant a series of statements and demanded payment but Defendants have failed or otherwise refused to make payment. A true and correct copy of the Invoices issued totaling $10,988.00 are attached hereto, and incorporated herein by reference as though set forth at length and marked collectively as Exhibit «A» 10. Defendant's failure to pay the invoices when due is a material breach of the parties' oral contract. 11. As a result of Defendant's breach of the parties' oral contract, Plaintiff has suffered damages in the amount of $10,988.00. 12. As set forth Plaintiff has made repeated demands for payment to which the Defendant has 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 Defendant's 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 September 5, 2007 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, Cassel Concrete, LLC, demands judgment in its favor and against Defendant, John Bottaro individually and d/b/a Bottaro Construction, in the amount of $10,988.00 plus a penalty of 1% per month on said amount until paid, plus reasonable attorney fees, litigation expenses and costs of suit. COUNT II UNJUST ENRICHMENT 14. Paragraphs 1 through 13 are incorporated herein by reference as though set forth at length. Job Identification Contract Price Hill Side Entrance $2,240.00 Hill Side 13 $5,500.00 Hill Side 16 $1,040.00 Hill Side 15 $1,088.00 HSV Sidewalks $1,120.00 15. Plaintiff conferred benefits on Defendant. 16. The benefits conferred were non-gratuitous. 17. Plaintiff provided materials and labor to Defendants in the amount of $10,988.00. 18. As a result of Defendant's failure to pay Plaintiff the $10,988.00, Defendant's have been unjustly enriched in the amount of $10,988.00. 19. There was an appreciate of those benefits by Defendant. 20. Acceptance and retention of these benefits by Defendant, under the circumstances, is inequitable and without payment of value. 21. As a result of Defendant's failure to pay Plaintiff, Defendant has been unjustly enriched in the amount of $10,988.00. WHEREFORE, Plaintiff, Cassel Concrete, LLC, demands judgment in its favor and against Defendants, John Bottaro individually and d/b/a Bottaro Construction, in the amount of $10,988.00 plus a penalty of 1% per month on said amount until paid, plus reasonable attorney fees, litigation expenses and costs of suit. Respectfully Submitted, By: Hbrbert P. Henderson, I1,1 Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 I.D. # 56304 Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Attention: Invoice No.: 1474 Page No.: 1 Date: 07/19/07 Customer No.: 514 Terms Due Date 07119/07 P.O. Number Hillside Entranc Salesperson Quantity Description Unit Price Extended Amount 280.0 Sidewalks 280.0 Sidewalks 4.00 SQ FT 1,120.00 4.00 SQ FT 1,120.00 Item Total 2,240.00 Plus Sales Tax 0.00 Invoice Total 2,240.00 PF Cassell. Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Attention: Invoice No.: 1472 Page No.: 1 Date: 07/20/07 Customer No.: 514 Terms Due Date 07/20/07 P.O. Number Hill Side 13 Salesperson Quantity Description Unit Price Extended Amount 2,000.0 Basement Floor 2.75 SQ FT 5,500.00 Item Total 5,500.00 Plus Sales Tax 0.00 Invoice Total 5,500.00 Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Attention: Terms Quantity 200.0 Street Walk 32.0 Porch 40.0 Lead Walk Invoice No.: 1476 Page No.: 1 Date: 07120/07 Customer No.: 514 Due Date I P.O. Number Description Unit Price 4.00 SQ FT 4.00 SQ FT 4.00 SQ FT Salesperson Extended Amount 800.00 128.00 160.00 Item Total 1,088.00 Pius Sales Tax 0.00 Invoice Total 1,088.00 Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Attention: Invoice No.: 1475 Page No.: 1 Date: 07120/07 Customer No.: 514 Terms Due Date 07/20/07 P.O. Number Hill Side 16 Salesperson Quantity Description Unit Price Extended Amount 120.0 Street Walk 4.00 SQ FT 480.00 48.0 Patio 4.00 SQ FT 192.00 60.0 Lead Walk 4.00 SQ FT 240.00 32.0 Porch 4.00 SQ FT 128.00 Item Total 1,040.00 Plus Sales Tax 0.00 Invoice Total 1,040.00 Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Attention: Terms Quantity 280.0 Sidewalks Invoice No.: 1502 Page No.: 1 Date: 09/06/07 Customer No.: 514 Due Date P.O. Number Salesperson 09/06/07 HSV Sidewalks Description Unit Price Extended Amount 4.00 SQ FT 1,120.00 Item Total 1,120.00 Plus Sales Tax 0.00 Invoice Total 1,120.00 D CJ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CASSELL CONCRETE LLC, Plaintiff No. 08-1038 vs. JOHN BOTTARO Individually and d/b/a BOTTARO CONSTRUCTION, Defendant CERTIFICATE OF SERVICE I hereby certify that I have on this day served a copy of the Second Amended Complaint upon the person(s) and in the manner indicated below, which service satisfies the requirement of Pa. R.C. P. 440: Service by first-class U.S. Mail addressed to: William L. Adler, Esquire Adler & Adler 125 Locust Street P. O. Box 11933 Harrisburg, PA 17108-1933 Date: *ZO/n By: Herbert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 Attorney ID#56304 Asa _? William L. Adler, Esquire ADLER & ADLER 125 Locust St. Harrisburg, PA 17101 Phone: 717-234-3289 Fax: 717-234-1670 Email: wmadler(a?adlerandadler.net Supreme Court ID: 39844 Cassell Concrete, LLC Plaintiff IN THE COURT OF COMMON PLEAS Cumberland COUNTY, PENNSYLVANIA V. John Bottaro and and Bottaro Construction, Defendants CIVIL ACTION - LAW :NO. 08-1038 PRELIMINARY OBJECTIONS TO SECOND AMENDED COMPLAINT AND NOW COMES the Defendants, through their attorneys, Adler & Adler, and respectfully represents the following: 1. Pursuant to PARCP 1028(3), the pleading is insufficiently specific for the following reasons: a. John Bottaro is named as a defendant, yet the invoices and all dealings were with Bottaro Construction. b. The complaint is not specific enough to state a cause of action against John Bottaro. c. The complaint fails to state the actual nature of the entity of Bottaro Construction which is easily discoverable on the Department of State website. d. Minimal research would have revealed that Bottaro Construction Company was and is a Pennsylvania corporation formed in 1987. 2. The Complaint is legally deficient pursuant to Pa.R.C.P. 1028(4) for the following reasons: a. Plaintiffs allege unjust enrichment. b. Plaintiffs have alleged an oral contract. c. Unjust enrichment cannot be granted where a contract exists. d. Insufficient facts have been alleged to support a claim under the Contractor and Subcontractor Payment Act. WHEREFORE, Plaintiffs respectfully request that plaintiffs complaint be dismissed. William L. Adler, Esquire Attorney for Plaintiff ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, PA 17108 717-234-3289 Supreme Court ID Number 39844 Wmadler@adlerandadler.net September 8, 2008 CERTIFICATE OF SERVICE I, William L. Adler, Esquire, Attorney for Defendants, hereby certify on the day of §E? , 2008, I served a copy of the within preliminary objections upon the following person by first class mail, postage prepaid, addressed as follows: Herbert P. Henderson, II, Esquire PECHT & ASSOCIATES, PC 55 West High St. Elizabethtown, PA 17022 William L. Adler, Esquire .:. p t ?= c`a `fie (David D. Bueff Prothonotary X:rkS. Sohonage, E.SQ, Solicitor knee X Simpson 1St Deputy Prothonotary Irene E. Morrow 2" d Deputy Prothonotary office of the Prothonotary Cumberland County, Pennsylvania 68 - /63 R 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 • Carfisfe, DA 17013 • (717 240-6195 0 Fax (717 240-6573