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HomeMy WebLinkAbout09-1501David A. Fitzsimons, Esquire Attorney I.D. No. 41722 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff BEST ENVIRONMENTAL SYSTEMS TECHNOLOGY, Inc., Plaintiff V. BEST ROOFING TECHNOLOGY, Inc., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. O4 - lfbl Csvi I Tess. 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 Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 FARLEWfients\13047 B.E.S.T. Inc\13047.1.com1.wpd David A. Fitzsimons, Esquire Attorney I.D. No. 41722 --8eth T. Mosebey, Esquire Attorney I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff BEST ENVIRONMENTAL SYSTEMS : IN THE COURT OF COMMON PLEAS OF TECHNOLOGY, Inc., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : No. U 4 ' /SU 1 ??cvs? Tom.. CIVIL ACTION - LAW BEST ROOFING TECHNOLOGY, Inc., Defendant : COMPLAINT 1. Best Environmental Systems Technology, Inc. ("Plaintiff) is a corporation having its principal place of business at 1108 Nowell Road, Raleigh, North Carolina. 2. Best Roofing Technology, Inc. ("Defendant') is a Pennsylvania corporation with a registered office address at 1462 Trindle Road, Carlisle, Cumberland County, Pennsylvania. 3. On September 10, 2007, Plaintiff and Defendant entered into a Subcontract Agreement. A copy of the Subcontract Agreement is attached hereto and incorporated as Exhibit «A 4. Pursuant to the Subcontract Agreement, Plaintiff agreed to remove existing membrane and install new insulation and membrane to an existing system at a Home Depot store in Hanover, Pennsylvania. 5. On January 16, 2008, Plaintiff completed the above-described work under the Subcontract Agreement. 6. The total amount Plaintiff billed to Defendant for the work under the Subcontract Agreement was $129,194.00. 7. Defendant failed to pay Plaintiff in full for the work Plaintiff performed under the Subcontract Agreement. 8. In July 2008, Plaintiff and Defendant reached an oral agreement whereby Defendant agreed to pay $32,596.14 for the work Plaintiff completed under the Subcontract Agreement. 9. Defendant also agreed to pay Plaintiff interest accruing from January 16, 2008. 10. On July 24, 2008, counsel for Plaintiff sent correspondence to Defendant confirming the parties' agreement. A copy of the correspondence from Plaintiff's counsel is attached hereto and incorporated as Exhibit "B." 11. Defendant did not return a signed copy of the Judgment Note. 12. On August 11, 2008, Defendant made a payment to Plaintiff in the amount of $5,000.00. 13. On September 18, 2008, Defendant made a payment to Plaintiff in the amount of $5,000.00. 14. Defendant's partial payments constitute an acknowledgment of the parties' agreement, as memorialized in Exhibit "B" and its attached Judgment Note. 15. To date, Defendant has failed and refused to make any additional payments pursuant to the parties' agreement. WHEREFORE, Plaintiff requests that this Court enter judgment in its favor and against Defendant in the amount of $22,596.14, plus costs, interest in the amount of 18% per annum accruing from January 16, 2008, counsel fees, and any other relief this Court deems just and reasonable. MARTSON LAW OFFICES By: 7 David A. Fitzsimons, Esq re Attorney I.D. No. 41722 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: 3 /?? l 9 Attorneys for Plaintiff EXHIBIT A Sep. 12. 2001 1:550M No. 1304 P. 1 SUBCONTRACT AGREEMENT This AGREEMENT made this _l0 day of-September 2007 : by and between -Best Environmental Systems Technology, Inc. having its principal pig of busimeaa at 1108 Nowell Road Ralelgk NC 27607 hereinafter called the "Subcoutrnhctor," and Best 1oofnQ jabil*a Inc, Rer-caW "Coat '." 1. THE SUBCONTRACTOR agrees to lfunish all Moe, mewl* ad a aipmertt andgdhV scvl( &W vnd hok tg for. wdaaa s w0caffy a dx*d howbO and &ily+partbrm and in every rasped complete the Wait de WWod below in accordance with be provision of rile Couch, inclU&S The Genefal Condglons, The Special Conditions, the Plans and the 3peci cgiorg all of which are a part of the Contract. 2. WORK TO BE PERFORMED: Remove existing mieA?ttb/t.?ene,.msptll maw iasuladon and membrane to exiatirhg system, P"Idt 3. EXCLUSIONS: 4. PROJECT/OWNER NAME: Home Dopot 5. PROJECT LOCATION: Hanover, PA (NovaAd*%w) 6. PLANS AND SPECIFICATIONS: The work is to be in accordance with rho Plans and Specifications prepared by: N/A including sheet numbers and page mumbots dated 7. CONTRACT SUM: The Contramor agrees to pay the Subcontractor for the work described berain in accordance with The General Conditions and subject to any increase or decrease multing from changes that may be agreod upon, the stns of (S )-hourly pay rata X 1.63 x 1.12 x 1.20 dollars. S. SPECIAL CONDMONS: • Worst Monday through Saturday (Overtime allowed) • HWw Percehhmge of pro$t or possible bonus if finish early • Payment to be received 30 days from date of invoice or will be subject to finance charges and lien on building • Any leak calls to be handle by the PA office. ?^. • Best RoofinST A m pry meal, lodging and fuel con ?7 CJ?? M ?j Yl?5 W _, .... feted w • _ .._ . IrTS min dq?s a am of6 would 30:ci eve: ?/?'? ....... twXa{CtyVY? o44- ACCEPTED; \ Best Rvo g Tec logy, Inc. cq n J ' SUBCONTRACTOR: C GUe0.`',.m "`(? 4?rpvw00 LOCO, ne+ 5 4 V j CCL*, j%-4 6?- ?PPQ c?w,e rs, ' Nkc ,? EXHIBIT B NIAIX-1SON LAW OFFICES JIB IN B. F.)Xti J, -R Ili K. Df \RDORfF Itv?> 4: O?ITrI IfI IiI fit R-1 X. GILRIIV CTI . ;4J. li. F\u l R .11k,' ??.IARU CER7'IFIE July 24, 2008 1) \a ID A. I,n /.S1 ,\s CHRlsr()PHFR E. Rlr; J I'\\iI I R L. SPJ'..\R?s S, iii T. MoaL.t\1.\ TR( M' E. 171 HLINCI.R 1\.\'1-11 J..q\\\C f7.1. 1) CIVIL TRIAL IRFI'IAl I.,T HIGH JTRI LT l:.\RL1?1.t, PI\vvl r\\1.\ 1'x113 T>,_1.1 tutu>vf 243-3341 F\I>ullr.r I 1? 343-I85U I\ 1-1 RN17 \?ll w..martsonlaw.com Mr. Dwight West BEST Roofing Technology 1462 Trindle Road Carlisle, PA 17013 RE: Best Environmental Systems Technology, Inc. Our File No. 13047.1 Dear Mr. West: We understand that you reached an agreement with our client, Best Environmental Systems Technology, Inc., for the payment of $32,596.14, relating to a project at the Home Depot located in Hanover, Pennsylvania. Under the agreement with our client you agreed to pay the above-referenced amount along with interest accruing-from January 16,2008; Furthermore, youagreed that youwould make monthly payments of $5,000, along with a payment representing the balance of the judgment in October of this year. Enclosed is a Judgment Note reflecting the agreement between your business and our client. Please sign the Judgment Note and return it to our office. Additionally, please note that your first payment should be made directly to Best Environmental Systems Technology, Inc., on or before July 31, 2008. Should you have any questions, please feel free to contact me. Very truly yours, STNI unlp Enclosure cc: Mary Dudley, Vice President CFO MARTSON LAW OFFICES Seth T. Mosebey FARLESTlients\13047 BEST 1nc\13047.1.note1.wpd BEST ENVIRONMENTAL SYSTEMS TECHNOLOGY, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BEST ROOFING TECHNOLOGY, INC. NO. 08 - CIVIL TERM JUDGMENT NOTE $32,596.14 Cumberland County, Pennsylvania July , 2008 For value received, Best Roofing Technology, Inc., a Pennsylvania corporation (the "Undersigned") promises to pay to the order of Best Environmental Systems Technology, Inc., its successors or assigns (the "Holder"), in lawful money of the United States of America, at its offices at 1108 Nowell Road, Raleigh, North Carolina, or at such other place as the Holder may direct, the sum of $32,596.14, along with interest at the rate of 18% per annum accruing from January 16, 2008. The judgment shall be payable in minimum monthly installments of $5,000.00. The first payment shall be due no later than July 31, 2008. Thereafter, each monthly payment shall be made on the 15' day of each month, with the balance of the judgment due no later than October 15, 2008. The parties agree that this Note may be recorded with the Cumberland County Prothonotary's Office and indexed accordingly. If an Event of Default, as hereinafter defined, shall occur, the entire unpaid balance of this Note together with interest, costs and reasonable counsel fees shall become immediately due and payable without'demand or notice, and the Holder may proceed to exercise its rights hereunder or otherwise accorded by law, and no failure to exercise any of its rights and no extension of time for payment on the part of the Holder shall be deemed a waiver of any such rights or of any default hereunder. The following shall constitute Events of Default hereunder: (a) Any proceedings in bankruptcy, receivership, reorganization or insolvency shall be filed by or against the Undersigned; (b) The dissolution of the Undersigned; (c) The creation of any other lien, or the issuance of any attachment, against the property of, or the entry of judgment against, the Undersigned; (d) Any material adverse change in the financial condition of the Undersigned, or Holder believes the prospect of payment of this Note is impaired; (e) The suspension of usual business activity by the Undersigned; or (f) Holder believes itself insecure. This obligation shall bind the Undersigned, and the heirs, executors, administrators, successors and assigns of the Undersigned, and the benefits hereof shall inure to the Holder. Presentment, notice of dishonor and protest are hereby waived by the Undersigned. If any provisions hereof shall for any reason be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, but this Note shall be construed as if such invalid or unenforceable provisions had never been contained herein. This Note shall be governed, as to construction and enforcement, by the laws of the Commonwealth of Pennsylvania. WITNESS the due execution hereof the day and year first above written with the intent to be legally bound hereby. ATTEST: BEST ROOFING TECHNOLOGY, INC. By: Dwight L. West, President COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ss. On this day of , 2008, before me, the undersigned officer, personally appeared Dwight L. West, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. (SEAL) t VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lien. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. Best Environmental Systems Technology, Inc. ?I "Al J M C. D dlecy.,, VP/CFO C= C t J46 a a Tq D rn ? ca RECEIVED NEAR 0 4 2009 MARTSO Sheriffs Office of Cumberland County R Thomas Kline x01,0 0 +cambPri$ Edward L Schorpp Sheriff Solicitor Ronny R Anderson Jody S Smith Chief Deputy !OFFICE or T"E SHERIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 03/1212009 03:05 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on March 12, 2009 at 1505 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Best Roofing Technology, by making known unto Kristy Foreman, Office Manager, at 1462 Trindle Road, Carlisle, Cumberland County, Pennsylvania its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $32.92 (PAID) SO ANSWERS, March 13, 2009 R THOMAS KLINE, SHERIFF Depu y eri Docket No. 2009-1501 Best Environmental Systems v Best Roofing Technology C) c? 71 rsi GS N "?