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Home My WebLink About04-0808 GILBERT & SONS INSULATION, INC.,: IN THE COURT OF COMMON PLEAS OF 68 Springfield Street CUMBERLAND COUNTY, PENNSYL VANIA Chicopee, MA 01013 Plaintiff v. No. 04- j'OP ClulC-TEfl-~ BARRETT COMPANY, INC. 1525 Cedar Cliff Drive Camp Hill, P A 17011 JURY TRIAL DEMANDED Defendant Civil Action - Law NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICES SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 Tel. -717-249-3166 102915.22/24/04 Matthew M. Haar, Esquire Atty.. I.D. No. 85688 Saul Ewing LLP 2 N. Second Street, 7th Floor Harrisburg, PA 17101 717-257-7508 (ph) 717-257-7581 (fax) Attorneys for Plaintiff Gilbert & Sons Insulation, Inc.. GILBERT & SONS INSULATION, INC.,: IN THE COURT OF COMMON PLEAS OF 68 Springfield Street CUMBERLAND COUNTY, PENNSYL VANIA Chicopee, MA 01013 Plaintiff v. No. OLl - .PO? C,~~l ~~ BARRETT COMPANY, INC. 1525 Cedar Cliff Drive Camp Hill, P A 17011 JURY TRIAL DEMANDED Defendant Civil Action - Law COMPLAINT AND NOW comes Plaintiff Gilbert & Sons Insulation, Inc., by and through its undersigned counsel, and avers as follows: 1. Plaintiff Gilbert & Sons Insulation, Inc. ("Gilbert") is a Massachusetts business corporation with its principal place of business at 68 Springfield Street, Chicopee, Massachusetts, 01013. 2, Defendant Barrett Company, Inc. ("Barrett") is a Pennsylvania business corporation with its principal place of business at 1525 Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania, 17011. Michael Barrett is the president of Barrett. 3. On or about May 16, 2001, Gilbert and Barrett entered into a written contract whereby Gilbert was to supply and install insulation in a Holiday Inn Express in Brattleboro, Vermont, and in exchange Barrett was to pay Gilbert $60,700.00 (the "Brattleboro Contract"). A 10291522/24/04 copy of the Brattleboro Contract is attached hereto as Exhibit A and incorporated herein by reference. On information and belief, the Brattleboro Contract was accepted by Barrett in Cumberland County, Pennsylvania. 4. On or about March 25,2002, Gilbert and Barrett entered into a written contract whereby Gilbert was to supply and install insulation in a Holiday Inn Express in Chicopee, Massachusetts and in exchange Barrett was to pay Gilbert $57,979.00 (the "Chicopee Contract"). A copy of the Contract is attached hereto as Exhibit B and incorporated herein by reference. On information and belief, the Chicopee Contract was accepted by Barrett in Cumberland County, Pennsylvania. 5. At the request of Barrett, Gilbert performed additional work on the Chicopee Contract and the Brattleboro Contract in the amount of $5,401.00. 6. The total amount owed to Gilbert based on the Chicopee Contract and the Brattleboro Contract was $124,080.00 7. To date Barrett has paid $100,350.00 on the Chicopee Contract and the Brattleboro Contract. 8. Barrett has an outstanding balance of$23,730.00 on the Chicopee Contract and the Brattleboro Contract. 9. Gilbert has demanded that Barrett pay the remaining balance ofthe Chicopee Contract and the Brattleboro Contract, both orally and in writing, but Barrett has refused to do so. A copy of the most recent written demand to Barrett is attached hereto as Exhibit C. 10. The contracts provide that Gilbert is entitled to recover a finance charge of 1.5% per month, 18% annually on accounts owed over thirty (30) days. 102915_22/24/04 -2- II. The contracts provide that Gilbert is entitled to recover all collection fees including a reasonable attorney's fee. COUNT I - Breach of Contract 12. Plaintiff incorporates the averments of paragraphs I through 11 by reference. 13. Two valid and binding contracts existed between Gilbert and Barrett, specifically the Chicopee Contract and the Brattleboro Contract. 14. While Gilbert complied with all of the terms of the contracts, Barrett breached the contracts by failing to pay to Gilbert the entire amount due. 15. As a result of Barrett's breach of the contracts, Gilbert has suffered damages, including but not limited to the outstanding balance on the contracts. WHEREFORE, Gilbert respectfully requests that this Court grant judgment for it and against Barrett in an amount equal to: a) the unpaid balance of$23,730.00; b) interest at a rate of 1.5% per month, 18% annually; c) all of Gilbert's collection fees, including a reasonable attorney's fee; and d) such further relief as this Court deems just and equitable. COUNT II (in the alternative) - QUANTUM MERUIT 16. Plaintiff incorporates the averments of paragraphs I through 15. 17. Gilbert conferred a benefit upon Barrett. 18. Barrett appreciated the benefit conferred upon it by Gilbert. 19. Barrett accepted and retained the benefit conferred upon it by Gilbert under circumstances which would make it inequitable for Barrett to retain the benefit without payment to Gilbert. 102915.22/24104 -3- WHEREFORE, Gilbert respectfully requests that this Court grant judgment for it and against Barrett in an amount equal to the value of the benefit conferred upon Barrett and grant such further relief as this Court deems just and equitable. Respectfully submitted, 1f~~~ Atty. J.D. No. 85688 Saul Ewing LLP 2 N. Second Street, 7'h Floor Harrisburg, P A 1710 I 717-257-7509 (ph) 717-257-7581 (fax) Dated: February 24, 2004 Attorneys for Plaintiff Gilbert & Sons Insulation, Inc. 102915.22/24/04 -4- VERIFICA:rmN r. Gilbert Palarino, hereby verify rhat r am the pr-esidc:nt of Gilbert &; Sons Insulation. Inc. that I am autborl:te<l to make this verification 011 behalf of Gilbert &; Sons Insulation. Inc., lIIat I have road the foregoing Compkdnl, and that the statemelIts of fact made themn are true aDd COr1Wt to lhc best of my knowledge, information and belief. I make lhi. statcmc:at pursuant to 18 Pa.C.S.A. ~ 4904 relating to unsworn falsification to authorities. .~P#- GilbeJt Pa.latino Pated: Fetn'uary.JJf-. 2004 ldU..)~ 05/15/2021 20:06 1802257861 6 BARRETT CO Me~ 10 01 09:4ge GILBERT' SON INSULATION. 1-413-467-1035 PAGE 01/01 pol - --=" 8:: I 1Ii~; --.; GILBERT & SON INSULATIO~, INC. PH _ 4)).$'/4.5287 OR 1-800-251-486..>, .....X #413-467.1035 ... 6UPRINGI'1l;;f.O STRERT " , \), ClIICOPllIl. MASS. 010\3 - 4)00 . 0 ?rf ~ ~ . \ ,,\") Pag<:no. of fIIII!"" PROPOSAL MonIbct Ilc:nllr ~_Ilu~u ~_ RcaiClratioolllll1047 ~'''''''IMI''''''''Ifm1;~K'IT~V- - ~.,..." 1~~t-If.l.)aCC~"'l'-_ Im.'("~_'~-H' ~~.v.w''''''''''''''N-''l'I.V.v.~ --;"111_ '<~It~N-~ 'l~eMMI Jtllf!l(....,.. .lOUftAv~I'llt:.'\PIlf.Wf - - --;;-- ----c;il(iiiifi;OJt."iiiX'iii:I.iiii:Vii~ - - - A'NN~ """K aMar.-n I n.n,Jf".",........ 'lC5Iltrfll"" '---rIO'iY.t~ _ __' 1; ,- We hereby submit speeifiutioDs and estimate for insulation as follow: .REVISED FROM PROPOSAL DATED Sl7101 { MARK AS *} ARE AS FOLLOW: M...IN FLAT CF.IL1NC - R-.3I BLOWN <.-u..<fi.1 CE....uLOSE wml PROPER VENTS...T E...VS POOL ROOM Cr:.LINc. - K-38 BLOWN a.ASS /II CELLUlAlIiE WITH l'IlOl'F.R VEl'n' AT E I!:LEV,uOR SHAFT WALLS - R~19 UNFACED B...TfS HALLWAYS PARTY WALLS- RQI9 UNFACEO.ATl'S EXTERIOK WAI.t..'i-K"'9 UNVA(:Ii:DBA'ITS WITH POLY I'OOL ROOM EXTERIOR WALIS-lt-19 UNVACED 8A'ITS WITH POLY ']."" F1,O()It COMMON PARTY WALLS - ..,,, UNVACED BAtTS BATHROOM WALLS- R-II UNFACKD 8An-s I'" FLOOR COMMON PARTY WALLS. R=19 UN"'ACED BAlTS ;t"" FLOOR BLOCKERS '" RUNNERS - R-I. UNFACF.O BA1TS I'" FLOOR BLOCKERS '" ItuNNl:1lS - R=19 UNl/ACED BATTS AROUND BATH TIlBS - R-II UN FACED 8ATrS 3""F1.()QRCOMMON PARTY WALL<;. R-"UNFAcm 8ATTS PACk AROUND WINDOWli" DOOKS WITH FIBERGLASS UPGRADES ARt: AVAILABLE UPON REQUFST _ ~ -......Ol'C ## , - NO BATHROOM !IS BA1'H'-OOl\llli;O\,PlP DOI.KD. 38urm DOA~II UP 1'0 CEILING ONLY. ADD ~ IN. SOU~D It'" '_I h.... ...I-OOR COMMON PARTY WALLS, ,!fl' FLOOR COMMON PARTY WAI.IS )1lIl 'UJbR COMMON PARTY WALts ^u.. Jl1UlIfAtl 1'<' PllIlPOS.f:1) TOTAl. BFJ 9W. "OPTION ## 2 - zNl) FLOOR & l~T Io'LOOR BETWEEN FLOOR - R-l' llNFACED SAlTS WITH RODS. HALLWAY CEILINGS ADD W.ooo.OO TO PROPSED TOTAL BELOW. ~. lPON A(:CF.PTING PLEASE CK OPTIONS CHOSEN. SIGN DF.LOW & MAIL OR FAX BACK TO Us.-" , '0' THANK YOU . ..~ ~~~~:~=;~:;-;.~=;;-:~~-~.~::.~~~~:~~~:~~.~~:~~,~...~~- "0::7..Of """""'1. to "" mode as follows: ~ynn:n\C in lid' due upon oomplotion of work, Accounts ~ U'tCI' 30 dla)'ll are sllbja.1ed to a tin...oe ohll'll" of 1.50% '""' flIontl1. 11% """uaIly. Aller liO daY" bu~ ag'ClOSlo pay all ~IOCIion fi;cs in.luding. rell5OR1IbIe lIItOmCy'. roc. ""db...i7.Od SillnlltUre _ . ~ lty 700 CC t P7' ~e.J(. -:; I" 2Z, QO~cJ' oroO,,~'2. = '.. ~O 1'100 .', .----::;' All_krill .~luk_lfPClCIticcl NI W\'lrtIUtJt~in. iUbMan1i1t' __Ii\(__"'" "'.....Ilco.........,., pco___^", ........ UC' *"ilUClCltmI.a!Jtow liilKifio(ions iIMlria&; Qha 4XlIIII..aD t1ce.....a '*1....._-......,,.;n_..___."".............i_ ^lI.~COMi..... .p.\n~v. ~ Of dcrit1wlkyood ,..aIIb'OI. (>wncr", ""I)' ,.............,-....-.,. '-. Note: Thl. """"","I may be Wilhdrv_ by us if net 1I<CCIKec1 within 30 OA YS. A.cceptance of Proposal- The .bo... pri""", spo<:ifi""tions and Wlltlilions "'" iAlisfacturY .nd art: h<:n:by a<:cqlI.... Y 0\1 an: .lIIhori.(ld 10 do the '""'" II spccili.'d. Payment will be mllll<: AI outlin'" .bcM>. Onte of Me.pla",,,, _~' 11,-...0 1___ Signatwc__ rJ\ 0 } _, SignAlUtc. _, 12/09/2021 18:40 18022578616 H.~ 25 Q2 10.37a OlIvIa D~~r~~ BARRETT CO 1-413-467-1035 PAGE 01/01 pi.] GILBlRT . SON INSu...&UON, INC. "'110. 1 fII 1 pea- . PH. .&ts-D4-na? OIl '....21. .. PAX't1-4I3-4C!'Mfl5 ~=~~~" ' . .' ~ PROPOSAL , . ~~ NiVl.1I7'1fe/~O!f9 """"""', - . ....... J/. /'11. .. . '{~ ...... "- t1I3047 I "I7"~JII .....,.,~ANW ..... t. _ OIl.....r W I.... MMI _ __. ...... ...._ _YWiI.. ....., i.._ _....... tINP.......-va..AJldA......l _ '.....M... ."lP't~_.... ............1 'I I - -.., We Ilenby.....1t .,.tUL ,,(( ,- .... ...... for........ as foIIMr: *REVlSED QUOTE U: QUOTE DATED 3/16102 AS FOLLOW: "n.ooaClll.lllG-'" DAJT IlAIlS lOAI'IIIAU.CIlIUIfG-J'ILL WI'I1I CL\Ialll-- .~ 't-ftA)O&*"'IWJ.....AlLS .1Mf1lNrACIDIlA'l'I$ 't-lUliOazx.fllAU. ....AIU...II..AQID Mft'I t!-n.ooa &........ WAU8-.....t~ACDIlATI'S'WI'I'II POI.Y a-n.ooaIUVATOIt WALU.a-t' Ul'lf.u:lDMTI'S ;'-1I.QOIl,A!lTY WALLI-"" 1lICI'ACD 1lA'ITI t-n.ooa*"'IIALLWALLI- ....tONrACIDIATl'S ~ II.QOIlZlCilIlALL wAIoU. ...... ONrAL'ID 1ATl'S -"'n.ooa ILBVA'nJIl WAIU. """'AClDIl.\Tt8 'Pn.ooaPAMYWAU,S..." U'lI'M:ID MTIS f'"fLQOIl-.A;,..... WALU-a-lt1lNl'A.CID1lAn'S WI11lPOLY 'P"" n.ooa IlA'I'.-oM CIILIIIGIAT'l'D 'IOl'.u.or .... .'1CMlJl Pf) M...aol)u.a "'1MAClDll.\m.... llNFAClDMTI'S. ""lIlllO~M'I1$lI1IIIlM11MACD "''11$ 1:~D'I'IaIOR WALU-R-"QlrAaD114m 1WftBfOI,Y . . ~ FLOOIIt <ZILIJIlG-ll UJIlfAalD IlATI'S lIOVND ,-J1.OOaMlClWllCALIlOOMWAU,I..... UVAQl8 IlAm llfJLOORrAJrI'Y w.u.u. ".t1llCl'ACD MTI'S i"n.ooaBAu.WAU.I- ...1t1MAQIJ Mns ". '1.0CllUUVA1'OIl WALLI. "1I1M'AaD I14ns I..JLOOR__CIlILIMC-....aau.n 1lA1TB .IT JLOORlDUJIALL WALLS '''11 tMACID lAm 1OOt.8OOtII1U..... ....4UA-..... UJIlfACID Mn'S WIllI POLY POOLIIIOON MAlI'f J'LAT CIaLDlG -"'1CII4Fl' lAm 1".~-..-AVAflI.... ~-...... *UPON ACCIP't'ING PI.R~$E SIGN BEl.nw .t: MAIL OR. PAX BACK TO us. 1'BANK YOU w.~__..__...___.___. - 1 ...._.1IOl.LUI (57,t7t.OO) ~~c~~\::_ A h_n.".--. ''"'\!' ~ --. n'"', '" - _____ '-11I11 ill 1JIt-1IJ*I ~ of......1.CDN...lIlIIIed - so ."MJI~T5'" 1 ~Ttl"""""'" \*" I!!IIIIIIIY.AIIr 60 ____,,-"'JlIlY.u lOlI... _iaoWill&.~ inr'"' ta ~~iI,:,~e;.:::~:'I===~;" ..... -.. I ~ ~ A ...........__. or __.-_....._ ____......... _._...._..._......... Nole: TlIia \ll'OPGIIIq. ........,.........._-. -............-.1. -.. wte h,... ",.Itlllli Ir:"('1 r wIlIliD 30 OAYS. ..,..............._- A~"tJ/ ~-Tbe...........ril''"lwl ..oondltiaM_wti~~GI7l11dn""""- ,llId. YGllllC ......... "'.... the -".. apooIlIed. ..,.. .,,;lIllellllde.. 0lIIIW __. s.... ~ I< DMoal,.; ... J Y 3 -, ~ - 0 "'l.....-- ---- S' +~- ATTORNEYS AT LAw MATIHEW M. HAAR Phone: (717) 257-7508 Fax: (717) 257-7581 mluw@sauLcom www.sau1.com January 23. 2004 Vw Certirred Mail No. 7002315000006074 7749 Mr. Michael Barrett Barrett Company 1525 Cedar Cliff Drive CampHiIl,PA 17011 Re: Gilbert & Son Insulation, Inc. Dear Mr. Barrett: We represent Gilbert & Son Insulation, Inc. in reference to their contracts with you for the Holiday Inns in Brattleboro, Vermont and Chicopee, Massachusetts. As you are aware, Gilbert completed these jobs more than a year ago, but to date you have refused to pay Gilbert in full for the labor and materials provided on these jobs. Your outstanding balance on these jobs is $23,730. Your contracts with Gilbert provide that Gilbert is entitled to recover interest at 18% annually. Further, Gilbert is entitled to recover all costs incurred in collecting your outstanding balance, including attorney's fees. To date Gilbert has incurred approximately $500 in attempting to collect your unpaid balance. At this time, Gilbert is willing to forgo the 18% interest if, and only if, payment is made in full (including the $500 in collection costs) and delivered to me in the form of a bank check by Friday, February 6, 2004. If you refuse to make payment in full by Friday, February 6, we will commence a lawsuit against you through which we will recover not only the balance of$23,730, but also interest at 18% and attorney's fees. Please contact me immediately to arrange for payment. Sincerely, 41~$~~ Matthew M. Haar cc: Gilbert & Son Insulation, Inc. 2 North Second Street, 71b Floor. Harrisburg, PA 17101-1604. Phone: (717) 257-7500. Fax: (717) 238.4622 10245011122104 BALTIMORE CHESTERBROOK HARRISBURG PHILADELPHIA PRINCETON WASHINGTON WILMINGTON A DELAWARE UMITED LlABIUTV PARTNERSHIP ~lI~I'llIl_l(.l'W"''''_'''''''''f..'ro,,_ . · Complete nems 1, 2. and 3. Also complete ' item 4 if Res.rtcted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mail piece, or on the front if space permits. 1. Article Addressed to: ~,;.... 8. R""eived by (Printed Name) I C. f~ D. Is delivery address different from It8fT:\.? 0 Ves If YES. enter delivery address below: 0 No mr. miChele/ &lrreH- €:arfett ComiXJ.ilj /5:1.5 Cedar Chlf Dove f-M1p HilI} I'll 170/J 3. Service Type ~ Certified Mail 0 Express Mail o Registered f3l Return Receipt for Merchandise o Insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes .2. Article Number (TranSfer from service labe PS Fonn 3811, August 2001 7DD2 315D DDDD 6D74 7749 Domestic Return Receipt 102595-02-M..f:l835 CJ CJ CJ _m R._'" CJ (Enjorsement Required) c:J Restr1ctecl Delivery Fee U") (Endorsement ReqUIred) r'l fTl ~'~r p. ~t~~ El i~' RECEIPT Certified Fee 2- .36 (.?~ Total Postage & Fees J-/.I1;) ru CJ CJ 1'- :t>l..:I.""J<l6..'1..I.I..i...111.1..1I.lii<' AJ (::) "lQ. :Ii- ~ U( 0 Crt " ...., . ~...~ c) ~ 0c ,__:l 8 () " ~" ~ -., :.:-( --- :-' ~ ;L f:! c-:~ r-", ~ ~ W , .. CJ D ~E. i::- c.' <.: , SHERIFF'S RETURN - REGULAR CASE NO: 2004-00808 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GILBERT & SONS INSULATION INC VS BARRETT COMPANY INC RICHARD SMITH 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 1040:00 HOURS, on the 27th day of February, 2004 at 1525 CEDAR CLIFF DRIVE CAMP HILL, PA 17011 by handing to JOLYNN HAFER, OFFICE MANAGER 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 Service Affidavit Surcharge 18.00 11.04 .00 10.00 .00 39.04 So Answers: r~~~ R. Thomas Kline 03/01/2004 SAUL EWING me this 5'!::- day of heriff Sworn and Subscribed to before By: ~ ;;<IJV'+ A.D. (7 c.<.- Q. )1-1,11", ,A~ ... ff Prothonotary GILBERT & SONS INSULATION, INC. 68 Springfield Street Chicopee, MA 01013 Plaintiff v, BARRETT COMPANY, INC. 1525 Cedar Cliff Drive Camp Hill, PA 17011 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO, 04-808 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed New Matter and Counterclaim of Defendant within twenty (20) days from service hereof or a judgment may be entered against you. Date J/Z?/ay , Respectfully submitted, SERRA TELL!, SCHI CALHOON, P,Ct< By BROWN & F. R. Martsolf, Esquire Pa. Attorney J.D. No, 1585 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant GILBERT & SONS INSULATION, INe. 68 Springfield Street Chicopee, MA 01013 Plaintiff v, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-808 CIVIL TERM BARRETT COMPANY, INe. 1525 Cedar Cliff Drive Camp Hill, PA 17011 Defendant JURY TRIAL DEMANDED ANSWER TO COMPLAINT CONTAINING NEW MATTER AND COUNTERCLAIM AND NOW comes Defendant Barrett Company, Inc" by and through its undersigned counsel, Serratelli, Schiffinan, Brown & Calhoon, P.e., and avers as follows: I. Admitted. 2. Admitted. 3, The contract speaks for itself, 4. The contract speaks for itself, 5. Denied, Defendant is without sufficient know ledge or information to form a belief as to the truth of the averments set forth in Paragraph 5 of Plaintiff' s Complaint and strict proof thereof is demanded at the trial of this cause if relevant. 6. To aver an amount due presupposes a debt which is a legal conclusion to which no responsive pleading is required, 7. Denied. Defendant has paid Plaintiff $110,350,00, 8, To aver an outstanding balance presupposes a debt which is a legal conclusion to which no responsive pleading is required, It is admitted that Plaintiff has made demand upon Defendant for payment. 9. To aver a remaining balance presupposes a debt which is a legal conclusion to which no responsive pleading is required, 10. The contract speaks for itself II, The contract speaks for itself, COUNT I 12. Paragraphs I through II hereof are incorporated herein by reference as if set forth at length, 13, The averments set forth in Paragraph 13 of the Complaint are legal conclusions to which no responsive pleading is required, 14. The averments set forth in Paragraph 14 of the Complaint are legal conclusions to which no responsive pleading is required, 15. The averments set forth in Paragraph 15 of the Complaint are legal conclusions to which no responsive pleading is required. By way of further answer, Defendant denies that Plaintiff suffered damages since Defendant is without sufficient know ledge or infonnation to form a belief as to the truth of the averments set forth in Paragraph 15 of Plaintiff' s Complaint and strict proof thereof is demanded at the trial of this cause if relevant, WHEREFORE, Defendant requests this Honorable Court to dismiss Plaintiff's Complaint with prejudice. COUNT II 16. Paragraphs I through 15 hereof are incorporated herein by reference as if set forth at length 17. Denied. Defendant is without sufficient knowledge or infonnation to form a belief as to the truth of the averments set forth in Paragraph 17 of Plaintiff' s Complaint and strict proof thereof is demanded at the trial of this cause if relevant. 18. Denied, Defendant paid Plaintiff for its work. 2 19, The averments set forth in Paragraph 19 of the Complaint are legal conclusions to which no responsive pleading is required. WHEREFORE, Defendant requests this Honorable Court to dismiss Plaintiff's Complaint with prejudice. NEW MATIER 20. Paragraphs I through 19 hereof are incorporated herein by reference as if set forth at length. 21. Plaintiff failed to provide adequate materials at both the Brattleboro and Chicopee project sites to complete Plaintiff's obligations pursuant to the Brattleboro Contract and Chicopee Contract. 22, At both the Brattleboro and Chicopee project sites, Plaintiff's employees requested of Defendant and Defendant's employees and/or superintendent that Defendant purchase materials to be utilized by Plaintiff in fulfilling its obligations pursuant to the Brattleboro Contract and Chicopee Contract. 23, Plaintiff failed to supply sufficient workmen to both the Brattleboro and Chicopee project sites to adequately fulfill Plaintiff's obligations pursuant to the Brattleboro Contract and Chico pee Contract and, in doing so, delayed job progression and risked delaying project completion beyond the required completion date for both the Brattleboro and Chicopee projects. 24. Plaintiff assigned one (1) man to each of the Brattleboro and Chicopee project sites and, although requested to provide additional manpower, Plaintiff refused to do so and, as a result, could not deliver completed floors on a floor-by-floor basis to Defendant in order to allow Defendant's work to progress in a timely manner. 25. Plaintiff's failure to provide sufficient manpower delayed other trades working on the Brattleboro and Chico pee projects. 26. Defendant provided additional manpower to Plaintiff in order to facilitate completion of Plaintiff's work in a timely manner. 3 COUNTERCLAIM 27. Paragraphs 1 through 26 hereof are incorporated herein by reference as if set forth at length. 28, Defendant spent $2,274.93 on materials requested by and delivered to Plaintiff to enable Plaintiff to complete its obligations pursuant to the Brattleboro Contract and Chico pee Contract. 29. Defendant spent $3,784,00 to deliver 172 man hours to Plaintiff to enable Plaintiff to fulfill its obligations under the Brattleboro Contract and Chico pee Contract. 30. Defendant's reasonable overhead and profit on the cost of materials and man hours provided to Plaintiff is $1,030,01. WHEREFORE, Defendant requests this Honorable Court to enter judgment against Plaintiff and in favor of Defendant in the amount of Seven Thousand Eighty-Eight and 94/100 Dollars ($7,088,94), including interest, costs and such other damages as may be recoverable under Pennsylvania law. Respectfully submitted, Date /!z, ? ;'y SERRATELLI, SCHIFFMAN, BROWN & ~OO:J'~ F. R. Martsolf, Esquire Pa, Attorney LD. No, 15859 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant 4 VERIFICATION I, Michael Barrett, state that I am President of Barrett Company, Inc., Defendant herein, that I am authorized to make this Verification on its behalf and that the facts set forth in the foregoing pleading are true upon my personal knowledge, information and belief. I understand that my statements are made subject to 18 Pa C.S. Section 4904 providing for criminal penalties for unsworn falsification to authorities. BARRETT COMPANY, INC. Date } Il/~ y BY~ ~I \<- C-- Michael Barrett, President CERTIFICATE OF SERVICE I hereby certify that I today served a true and correct copy of the foregoing Answer to Complaint Containing New Matter and Counterclaim, by placing the same in the U,S, mail, postage prepaid, addressed to: Date Matthew M. Haar, Esquire SAUL EWING LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 5/'b9~1 ( f ~ F. R Martsolf, Esquire ('") ......, c => ~ ;+I;~ = ..c- :x :r ~:/' ;:>. ;;0 m~ (ll N ~~ _c \.D ~~; )"' . "'" 20 ::I::iJ '-(_1 ::r 0 .J> (~: ..~ /-- 2.: 9? 0 =< C:-..l ~j;~ 5:; w -< Matthew M. Haar, Esquire Atty. I.D. No. 85688 Saul Ewing LLP 2 N. Second Street, ih Floor Harrisburg, PA 17101 717-257-7508 (Ph) 717-257-7581 (fax) GILBERT & SONS INSULATION, INC.,: IN THE COURT OF COMMON PLEAS OF 68 Springfield Street CUMBERLAND COUNTY, PENNSYL VANIA Chicopee, MA 01013 Attorneys for Plaintiff Gilbert & Sons Insulation, Inc. Plaintiff v. : No. 04-808 BARRETT COMPANY, INC. 1525 Cedar Cliff Drive Camp Hill, PA 17011 : JURY TRIAL ][)EMANDED Defendant : Civil Action - Law NOTICE TO PLEAD To Defendant Barrett Company, Inc,: You are hereby notified to file a written respons\: to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Dated: April 14, 2004 Attorneys for Plaintiff Gilbert & Sons Insulation, Inc. 104283.14/14/04 Matthew M. Haar, Esquire Atty. I.D. No. 85688 Saul Ewing LLP 2 N. Second Street, 7th Floor Harrisburg, P A 171 01 717-257-7508 (Ph) 717-257-7581 (fax) Attorneys for Plaintiff Gilbert & Sons Insulation, Inc. GILBERT & SONS INSULATION, INC.,: IN THE COURT OF COMMON PLEAS OF 68 Springfield Street CUMBERLAND COUNTY, PENNSYL VANIA Chicopee, MA 01013 Plaintiff v. No. 04-808 BARRETT COMPANY, INC. 1525 Cedar Cliff Drive Camp HilI, PA 17011 : JURY TRIAL ][)EMANDED Defendant : Civil Action - Law PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND ANSWER TO COUNTERCLAIM WITH NEW MATTER Plaintiff Gilbert & Sons Insulation, Inc. ("Gilbert"), by and through its undersigned counsel, hereby submits this Reply to Defendant's New Matter and Answer to Counterclaim with New Matter, and avers as follows: 20, No responsive pleading is required, Gilbert incorporates the averments in its Complaint. 21. Denied. To the contrary, Gilbert did provide adequate materials at both the Brattleboro and Chicopee project sites to complete its obligations pursuant to the Brattleboro Contract and the Chicopee Contract. 104283.14/14/04 22, Denied, To the contrary, at no time did Gilbelf's employees request that Defendant or its employees and/or superintendent purchase materials to be utilized by Gilbert in fulfilling its obligations pursuant to the Brattleboro Contract and Chicopee Contract. 23, Denied, To the contrary, Gilbert did supply sufficient workmen to both the Brattleboro and Chicopee project sites to adequately fulfill its obligations. Gilbert did not delay job progression or risk delaying project completion for either the Brattleboro or Chicopee job sites. 24. Denied. It is denied that Gilbert assigned only one man to each ofthe Brattleboro and Chicopee project sites. To the contrary, Gilbert assigned multiple workers to each job site. It is denied that Defendant requested additional manpower from Gilbert, To the contrary, Gilbert never received a request for additional manpower from Defend:mt. It is denied that Gilbert could not deliver completed floors on a floor-by-floor basis, and it is further denied that Defendant's work was not permitted to progress in a timely manner. To the contrary, Gilbert completed its work in full conformance with the Brattleboro Contract and the Chicopee Contract. 25, Denied. It is denied that Gilbert failed to provide sufficient manpower or that Gilbert delayed other trades, To the contrary, Gilbert did provide sufficient manpower to complete its obligations and did not in any way hinder other trades. 26. Denied as stated. While defendant did provide some additional manpower to defendant, this manpower was neither requested by Gilbert nor necessary to facilitate completion of Gilbert's work in a timely manner. COUNTERCLAIM 27. No responsive pleading is required. Gilbert incOlporates the averments of its Complaint and the foregoing averments of this Reply. 104283_14/14104 -2- 28, Denied. It is denied that Gi]bert requested that Defendant purchase any materials, It is further denied that Defendant delivered any materials to Gi]bert in order for Gi]bert to complete its obligations under the Brattleboro Contract or the Chicopee Contract. Gi]bert is without sufficient information to form a belief as to the truth of the averment that Defendant spent $2,274,93 on materials alleged]y provided to Gi]bert, and such averments are therefore denied. 29, Denied. It is denied that Gi]bert requested or needed any manpower from Defendant to fu]fill its obligations under the Brattleboro Contract or Chicopee Contract. Gi]bert is without sufficient information to form a belief as to the truth of the averment that Defendant spent $3,784,00 to deliver ] 72 man hours to Gi]bert, and such averments are therefore denied. 30. Denied. It is denied that Gi]bert owes Defendant for any materials or man hours, Gi]bert is without sufficient information to form a belief as to the truth ofthe averment that Defendant's reasonable overhead and profit on the materials and man hours alleged]y provided to Gi]bert was $],030.0], and such averments are therefore denied. WHEREFORE, P]aintiffGi]bert respectfully requests that this Court enter judgment for it and against Defendant Barrett, and grant such further relief as the Court deems just and equitable. NEW MATTER 31. P]aintiffincorporates the averments of the Complaint and the preceding averments of this Rep]y. 32, Defendant's Counterclaim fails to state a claim upon which relief can be granted, 104283.14114104 -3- 33. If the Defendant suffered injuries and/or damages and/or losses as alleged, which averments are denied, then any such injuries and/or damages al1d/or losses were caused by others, including the Defendant itself, and not by Gilbert. 34, Defendant's counterclaim is barred as a matter oflaw and/or contract. 35. Defendant failed to mitigate its damages. 36. Defendant has not suffered any cognizable injury, loss or damage whatsoever as a result of any conduct or action by Gilbert. 37. Some or all of Defendant's alleged damages, which are denied, are too speculative, as a matter oflaw, to permit recovery, WHEREFORE, Plaintiff Gilbert respectfully requests that this Court enter judgment for it and against Defendant Barrett, and grant such further relief as the Court deems just and equitable, Respectfully submitted, "UJf!~ Matthew M. aar, Esquire Atty. LD. No. 85688 Saul Ewing LLP 2 N. Second Street, 7th Floor Harrisburg, PA 17101 717-257-7509 (ph) 717-257-7581 (fax) Dated: April 14, 2004 Attorneys for Plaintiff Gilbert & Sons Insulation, Inc. 104283.]4/14104 -4- VERIFICATION I. Gilbert Palatino. hereby verify that I am the president of Gilbert & Son~ Insulation. Inc. Ihat I am authorized to make Ihis verification on behalfofGilbert & Sons Insulation. [nc., Ihall have read Ihe foregoing Plaintiffs Reply 10 Defendant's New Maller and Answer 10 Counterclaim wilh New Maller, and thai the statements of fact made therein are Irue and eorrecl to the hest of my knowledge, informalion and belief, [make this statement pursuant to 18 Pa.C.S.A. ~ 4904 relating to unswom falsilication to authorities. ~:zt&'tJifidtz-. - Gilbert Palatino Daled: April~. 2004 144'XI14,lllMM CERTIFICATE OF SERVICE I hereby certify that on April 14, 2004, I served a true and correct copy of the foregoing Plaintiffs Reply to Defendant's New Matter and Answer to Counterclaim with New Matter upon the following counsel of record by first class mail, postage prepaid: F.R Martsolf, Esquire Serratelli, Schiffman, Brown & Calhoon, P,C. 2080 Linglestown Road, Suite 201 Harrisburg, P A 1711 0 alf17l~ ~. Haar, sqUire Dated: April 14, 2004 104283.14/14/04 1"",;1 \'"':',:, c.;',:.1 ~I::- ,c' (J', C'l --,'I .-1 ?I'~ig -T:! '~'Tl "'7 , ) ,-, ...~_1 .\1 1",) 1",) c:.J v, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-808 CIVIL TERM GILBERT & SONS INSULATION, INC 68 Springfield Street Chicopee, MA 01013 Piaintiff BARRETT COMPANY, INC, 1525 Cedar Cliff Drive Camp Hill, PA 17011 Defendant JURY TRIAL DEMANDED DEFENDANT'S REPLY TO PLAINTIFF'S ANSWER TO COUNTERCLAIM WITH NEW MATTER AND NOW, Defendant Barrett Company, Inc, ("Defendant"), by and through its undersigned counsel, hereby submits this Reply to Plaintiff's Answer to Counterclaim with New Matter and avers as follows: 31, Defendant incorporates the avennents of Defendant's Answer to Complaint Containing New Matter and Counterclaim 32. Paragraph 32 sets forth a legal conclusion to w hichno responsive pleading is required. 33. Defendant incorporates the averments of Defendant's Answer to Complaint Containing New Matter and Counterclaim 34, Paragraph 34 sets forth a legal conclusion to which no responsive pleading is required. 35, Paragraph 35 sets forth a legal conclusion to which no responsive pleading is required, 36. Defendant incorporates the averments set forth in Defendant's Answer to Complaint Containing New Matter and Counterclaim 37. Paragraph 37 sets forth a conclusion of law to which no responsive pleading is required. WHEREFORE, Defendant respectfully requests this Honorable Court to enter judgment for it and against Plaintiff and grant such further relief as the Court deems just and equitable. Respectfully submitted, Date S!Vt?<Y BROWN & By F R!. Martso If, Esq e Pa, Attorney LD. Nb. 158 9 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant 2 VERIFICATION I, Michael Barrett, state that I am President of Barrett Company, Inc, , Defendant herein, that I am authorized to make this Verification on its behalf and that the facts set forth in the foregoing pleading are true upon my personal know ledge, infonnation and belief. I understand that my statements are made subject to 18 Pa. C. S, Section 4904 providing for criminal penalties for unsworn falsification to authorities. BARRETT COMPANY, INC. Date '')-/'110 </ ByJi\ J\~_C-- Michael Barrett, President CERTIFICATE OF SERVICE I hereby certify that I today served a true and correct copy of the foregoing Defendant's Reply to Plaintiffs Answer to Counterclaim with New Matter by placing the same in the U.S, mail, postage prepaid, addressed to: Date 5/ -?'/o~ { " Matthew M. Haar, Esquire SAUL EWING LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 r 1 F. R Martsolf, Esquire -,ci ,.;;-' ~.':. =l -<. (") '-~~ < ,..., = = ...- ::,1: :C;: -. o -n .-1 ::r:" n1F -om -00 ~~ ~-) ~r.: -1; l;J ;:=S ":~ (1'1 . , '~::'l )> ~:g .~ -J 2:":'; 6 c- UI . GILBERT & SONS INSULATION, INC.,: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 04-808 BARRETT COMPANY, INC. Defendant Civil Action - Law PRAECIPE TO DISCONTINUE WITH PREJUDICE To the Prothonotary: Pursuant to Pa.R,Civ.P. 229, please discontinue the above-captioned action with prejudice. Respectfully submitted, Matt ew'M, Haar, squire Atty. LD. No, 85688 Saul Ewing LLP 2 N. Second Street, ih Floor Harrisburg, PA 17101 717-257-7509 (ph) 717-257-7581 (fax) Dated: March 1, 2005 Attorneys for Plaintiff Gilbert & Sons Insulation, Inc, 110772.1111105 CERTIFICATE OF SERVICE I hereby certify that on March 1,2005, I served a true and correct copy of the foregoing Praecipe for Discontinuance with Prejudice upon the following person by first class mail, postage prepaid: F.R, Martsolf, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 Attorney for Defendant Barrell Company, Inc. 4~~,- Matthew M, Haar Dated: March 1, 2005 11077213/1/05 'i\ .-" (, (_J -------