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HomeMy WebLinkAbout10-6983 OFFIC L FARLES\Clients\7436 Tumer Hydraulics\7436.54\7436.54.complaint E OFT S 'q C HONOTARY Christopher E. Rice, Esquire Attorney I.D. No. 90916 ZQ10 ?{??? 3 "10:23 R. Christopher VanLandingham, Esquire ?-JtIDEhC A D COUNT Attorney I.D. No. 307424 Y F? 1liS YL ANIA MARTSON DEARDORFF WILLIAMS OTTO GILROY & TALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff TURNER HYDRAULICS, INC., Plaintiff V. PRISM BUILDERS, INC., and WAL-MART STORES, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2010 - G f ?3 CIVIL TERM 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: IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD A LAWYER Contact: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 UO dy (717) 249-3166 Zs-0G7 Christopher E. Rice, Esquire Attorney I.D. No. 90916 R. Christopher VanLandingham, Esquire Attorney I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff TURNER HYDRAULICS, INC., : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2010 - (0 9 f3 CIVIL TERM PRISM BUILDERS, INC., and WAL-MART STORES, INC., Defendants COMPLAINT 1. Plaintiff, Turner Hydraulics, Inc. (herein referred to as the "Plaintiff'), is a Pennsylvania corporation with a principal place of business at 1605 Industrial Drive, Carlisle, Pennsylvania 17013. 2. Defendant, Prism Builders, Inc. (herein referred to as "Defendant Prism"), is a Massachusetts corporation with a principal place of business at 107 Audubon Road, Bldg 1, Suite 19, Wakefield, MA 01880. 3. Defendant, Wal-Mart Stores, Inc. (herein referred to as "Defendant Wal-Mart") is an Arkansas corporation with a principal place of business at 702 SW 8`h Street, Bentonville, AR 72716. 4. Upon information and belief, Defendant Prism entered into a Construction Contract with Defendant Wal-Mart for work to be done at a Wal-Mart Store at 677 Timpany Boulevard, Gardner, MA 01440 (herein referred to as the "Store") Plaintiff entered into a subcontract agreement (herein referred to as the "Agreement") with Defendant Prism in Carlisle, Cumberland County, Pennsylvania, on or about June 24, 2009, for work to be done at the Store. A true and correct copy of the Agreement is attached hereto as Exhibit «A 6. Pursuant to the Agreement, Plaintiff agreed to provide, among other things, material and labor to install vehicle service equipment at the Store for which Defendant Prism agreed to pay a lump sum amount of $23,250.00. 7. Plaintiff completed work on or about August 13, 2009, and provided Defendant Prism with an invoice for work completed under the Agreement (the "Invoice") on or about August 17, 2009 in the amount of $23,250.00. The Invoice stated that an annual percentage rate of eighteen percent (18%) would be charged on all delinquent accounts. 9. Plaintiff completed an Application and Certificate for Payment, Vehicle Service Equipment Warranty, and Statement of Verification of Satisfactory Installation and (Inspection as requested by Defendant Prism on or about August 19, 2009. 10. Defendant Prism did not pay the invoice for work completed under the Agreement. 11. Beginning on or about October 30, 2009 and each subsequent month, Plaintiff mailed to Defendant Prism an invoice including interest charges of eighteen percent. 12. Defendant Prism has failed to pay the invoice as required under the Agreement. 13. The total due and owing under the Agreement is $23,250.00 plus interest of eighteen percent annually from October 30, 2009. Principal: $23,250.00 Interest as of September 30, 2010: $4,185.00 Court Costs and Fees (estimated): $500.00* Total as of September 30, 2010: $27,935.00 Plus interest accruing at $348.75 per month from September 30, 20110 until paid in full. *To be determined by the Cumberland County Sheriff. Count I-Breach of Contract Turner Hydraulics. Inc. v. Prism Builders. Inc. 14. Paragraphs 1-12 are incorporated herein by reference as if fully set forth below. 15. Defendant Prism is in breach of the Agreement for failure to make payri:ient for work completed by Plaintiff under the Agreement, and Plaintiff has incurred damages as a result. WHEREFORE, Plaintiff demands judgment against Defendant Prism under the Agreement in the amount of $27,935.00, plus interest from September 30, 2010, until the debt is paid in full, costs of suit, and any other relief this Court deems appropriate. Count II-Unjust Enrichment Turner Hydraulics v. Prism Builders. Inc. 16. Paragraphs 1-14 are incorporated herein by reference as if fully set forth below. 17. In the alternative, Plaintiff conferred benefits on Defendant Prism by completing work for which, upon information and belief, Defendant Prism had contracted with Defendant Wal-Mart to complete. 18. Upon information and belief, Defendant Prism benefitted from Plaintiff's work. 19. Upon information and belief, Defendant Prism was unjustly enriched by accepting and retaining the benefits conferred by Plaintiff. 20. The value of the unjust enrichment to Defendant Prism was $23,250.00. WHEREFORE, Plaintiff demands judgment against Defendant Prism in the amount of $23,250.00, plus interest until the debt is paid in full, costs of suit, and any other relief this Court deems appropriate. Count III-Unjust Enrichment Turner Hydraulics v. Wal-Mart Stores. Inc. 21. Paragraphs 1-19 are incorporated herein by reference as if fully set forth below. 22. Plaintiff conferred benefits upon Defendant Wal-Mart by supplying the labor and equipment necessary to complete the installation of the vehicle service equipment at the Store. 23. Upon information and belief, Defendant Wal-Mart accepted and retained those benefits. 24. Upon information and belief, Defendant Wal-Mart was unjustly enriched by accepting and retaining the benefits conferred by Plaintiff. 25. The value of the unjust enrichment to Defendant Wal-Mart was $23,250.00. WHEREFORE, Plaintiff demands judgment against Defendant Wal-Mart in the amount of $23,250.00, plus interest until the debt is paid in full, costs of suit, and any other relief this Court deems appropriate. MARTSON LAW OFFICES By: Christopher E. Rice, Esquire I.D. No. 90916 R. Christopher VanLandingham, Esquire I.D. No. 307424 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: / j 1 2010 Attorneys for Plaintiff EXHIBIT "A" SHORT-FORM SUBCONTRACT AGREEMENT SUBCONTRACTOR'S NAME: Turner Hydraulics, Inc. ADDRESS: 1605 Industrial Drive, Carlisle, PA 17013 PHONE: 717-243-3329 FAX: 717-243-8865 CONTRACTOR'S NAME: Prism Builders, Inc. .ADDRESS: 107 Audubon Road, Bldg 1, Suite 19, Wakefield, MAI01880 PHONE: 781-246-1900 FAX: 781-246-0901 DATE: i June 3, 2009 PROJECT NAME : Wal-Mart #2155 (09-004) PROJECT ADDRESS: 677 Timpany Boulevard Gardner, MA 01440 1. PARTIES This Subcontract (hereinafter referred to as "Agreement") is being entered into on the 3`° 6nd f June, 2009 and is between Prism Builders, Inc. , (hereinafter referred to as "Contractor"); Tumer Hydraulics, Inc. (refered to as "Subcontractor'). Subcontractor warrants that he is rly licensed to perform the type of work described in this Agreement and that he is an indepe contractor and not an agent or employee of the Contractor. 11. GENERAL SCOPE OF WORK DESCRIPTION AND SUBCONTRACT AMOUNT Subcontractor will furnish all labor, equipment, tools, materials, trans ortation su p pervision, and all other items required for safe operations to complete the following work which will comply with the latest edition of all applicable building codes and the Contract Documents referred to belo?(if conflict between plans, specifications, Subcontractors proposal, or this Agreement arises, (hen this Agreement is controlling): i Provide labor and materials to do the following : 1. Provide all labor, material, and equipment necessary to complete the installation of the Vehicle Service equipment in accordance with plans and specifications inc ding, but not limited to, installation of all equipment per schedule from TB429 throug TB 925 on drawing AC1 and furnish & install the Modem Welding equipment, TB8 1 through 713804. 2. Subcontractor to perform daily clean up. 3. Clean up after all work is complete. LUMP SUM SUBCONTRACT AMOUNT AND PAYMENT SCHEDULE: Contractor to pay Subcontractor the total Lump Sum Amount of (includes all applicable taxes): $23,250.0 0 Please note that all subcontractor invoices are due to this office prior to the 25th of each rr Receipt of payment from Owner is a condition precedent to paying Subcontractor under th Agreement. Ill. GENERAL CONDITIONS FOR THE SUBCONTRACT AGREEMENT ABOVE A. CONTRACT DOCUMENTS Subcontractor will perform its work in accordance with all Contract Documents, which are identified as follows: X This Construction Agreement X Plans: Drawings AC1, AC2, MAC1, MAC1.1, MAC2, MAC2.1 dated 11/1 (including Addendum #1 dated 4117/09) as prepared by Jason M. P.E., Inc. Subcontractor warrants that he has been furnished all Contract Documents referred to at:ve and has thoroughly familiarized himself with all Contract Documents and the existing site cond' ions. B. WORK COMMENCEMENT AND COMPLETION TIME TIME IS OF THE ESSENCE in all aspects of Subcontractor's performance and all work shll be completed in accordance with Prism Builders' construction schedule (See Attached Exhib' A). C. INDEMNIFICATION Subcontractor (and his agents) shall at all times indemnify, protect, defend, and hold harmless Contractor and Owner from all loss and damage, and against all lawsuits, arbitrations, mechanic's liens, legal actions of any kind whatsoever, attorney's fees, and any costs and expenses which are directly or indirectly caused or contributed to, or claimed to be caused or contributed to, by any act or omission, fault or negligence, whether passive or active, of Subcontractor or his agents or employees, in connection with or incidental to the work under this Agreement. D. SUBCONTRACTOR'S INSURANCE Before commencing work on the project, Subcontractor and its Subcontractors of every tie will supply to Contractor duly issued Certificates of Insurance, naming Contractor as an "additi nal insured," showing in force the following insurance for comprehensive general liability, auto obile liability, and worker's compensation*: X comprehensive general liability with limits of not less than $1,000,000 per occurrence; -automobile liability in comprehensive form with coverage for owned, hired, and non-owned automobiles; X worker's compensation i?isurance in statutory form. * All insurance binders must contain a clause indicating that certificate holders be given a minimum of 10 days written notice prior to cancellation of Subcontractor's insurance. Subcontractor must furnish the insurance binder referred to above as an express condition precedent to the Contractor's duty to make any progress payments to Subcontractor pursuant to this Agreement. E. EXPRESS WARRANTY At the request of Contractor, Subcontractor will promptly replace or repair any work, equip ent, or materials that fail to function properly for a period of one.year after completion of the proj at Subcontractor's own expense. Subcontractor will also repair any surrounding parts of the s cture that are damaged due to any failure in Subcontractor's work during the warranty period. 2 F. LAWS, REGULATIONS, AND SAFETY Subcontractor will comply with all statutes and regulations that establish safety requireme is (including, but not limited to those of OSHA and any state agency regulating job-site safe ), By signing this Agreement, Subcontractor knowingly and willingly accepts full responsibility to the safe operation of all of its activities and the protection of other persons and property durin the course of this project. 0. ENTIRE AGREEMENT, MODIFICATION, SEVERABILITY This Subcontract Agreement represents the entire agreement of the parties. Prior discussi ns or verbal representations that are not contained in this Agreement are not a part of this Agree ment. This Agreement cannot be modified by oral agreements but can only be modified by a written agreement which is signed by both parties. H. RETAINAGE The Contractor agrees that he will pay the Subcontractor ninety percent (90%) of all labor and material which has been installed by the subcontractor to be paid on, or about, the thirtieth'', (30"') day of the month following the month in which said work or material has been properly billed to the contractor. 1. TERMINATION OF SUBCONTRACT AGREEMENT The contractor may terminate this agreement if the subcontractor: (a) fails or refuses to supply enough property skilled workers or proper materials or equipment' (b) fails to properly prosecute the work in a timely manner; (c) fails to make payments for materials, labor or equipment used in the work; or otherwise is guilty of a breach of any other provision of the contract documents. 1 have read and understood, and I agree to, all the terms and conditions contained in the Agreement above. -,6/zA-/ 0,1 Date Pris uilders, Inc. t 'LL r-wa., Date Tu ydraulicsKn-c. VERIFICATION I, ems, as an employee of Turner Hydraulics, Inc., acknowledge I have the authority to execute this Verification on behalf of Turner Hydraulics, Inc.and certify that the foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of this document is that of counsel and not MY own. I have read the document and to the extent the Complaint 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 the content of the Complaint 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. § 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. TURNER HYDRAULICS, INC. By: FAFILEWiems\7436 Turner Hydraulics\7436.54\7436.54.wmplunt C.' Christopher E. Rice, Esquire Attorney I.D. No. 90916 R. Christopher VanLandingham, Esquire Attorney I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff TURNER HYDRAULICS, INC., Plaintiff V. PRISM BUILDERS, INC., and WAL-MART STORES, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2010 - 6983 CIVIL TERM TO PRISM BUILDERS, INC. through their authorized agent MATT GENZALE: NOTICE OF ENTRY OF DEFAULT JUDGMENT a?. You are hereby notified that on the ?_7 day of January, 2011, the following Judgment was entered against Prism Builders, Inc. in the above-captioned action: judgment in the amount of $27,935.00, plus interest from September 30, 2010, at the rate of $348.75 per month until the debt is paid in full, along with any additional costs incurred thereafter, for failure to file an Answer to Plaintiffs Complaint. Date: 4tP)honotary L?L G I hereby certify that the name and address of the proper person to receive this notice under Pa. R. Civ. P. 236 is: Matt Genzale 107 Audubon Road Bldg. 1, Suite 19 Wakefield, MA 01880 F:\FILES\Clients17436 Turner Hydraulics\7436.54\7436.54.pra.default Christopher E. Rice, Esquire Attorney I.D. No. 90916 R. Christopher VanLandingham, Esquire -?3 Attorney I.D. No. 307424 MM X rr-- i MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER c2n rv sacrn MARTSON LAW OFFICES r "J?+o 10 East High Street ° c)-nn Carlisle, PA 17013= rv -? ?? (717) 243-3341 Attorneys for Plaintiff w t' TURNER HYDRAULICS, INC., : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. PRISM BUILDERS, INC., and WAL-MART STORES, INC., Defendants TO THE PROTHONOTARY: : NO. 2010 - 6983 CIVIL TERM PRAECIPE Please enter default judgment in the above-captioned action in favor of Plaintiff and against Defendant Prism Builders, Inc. in the amount of $27,935.00, plus interest from September 30, 2010, at the rate of $348.75 per month until the debt is paid in full, along with any additional costs incurred thereafter, for failure to file an Answer to Plaintiffs Complaint. I do hereby certify that written notice of intention to file this Praecipe was mailed to Defendant Prism Builders, Inc. on January 10, 2010 which date is subsequent to the date default occurred and at least ten (10) days prior to the date of the Praecipe. MARTSON LAW OFFICES ?'/ S?t By. Dated: ? & 7/// Christopher E. Rice, Esquire I.D. Number 90916 R. Christopher VanLandingham, Esquire I.D. No. 307424 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff 7-1ti-do P.4- "i(I 2`0 xsy319 44;, c ,,,,,,. , 1eY FAFILESTlients\7436 Turner Hydraulics\7436.54\7436.54.10 day notice Christopher E. Rice, Esquire Attorney I.D. No. 90916 R. Christopher VanLandingham, Esquire Attorney I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff TURNER HYDRAULICS, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2010 - 6983 CIVIL TERM PRISM BUILDERS, INC., and WAL-MART STORES, INC., Defendants TO: Prism Builders, Inc. 107 Audubon Road, Bldg. 1 Suite 19, Wakefield, MA 01880 DATE OF NOTICE: January 10, 2011 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. 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 REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 MARTSON LAW OFFICES By 245Z4 r Christopher E. Rice, Esquire Attorney I.D. No. 90916 Attorneys for Plaintiff Christopher E. Rice, Esquire Attorney I.D. No. 90916 R. Christopher VanLandingham, Esquire Attorney I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff TURNER HYDRAULICS, INC., Plaintiff V. PRISM BUILDERS, INC., and WAL-MART STORES, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010 - 6983 CIVIL TERM AFFIDAVIT AS TO MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA ) :SS. COUNTY OF CUMBERLAND ) Christopher E. Rice, Esquire, being duly sworn according to law, deposes and says that he has authority to make this affidavit on behalf of his client, and to the best of his knowledge, information and belief, Defendant Prism Builders, Inc., above named is not in the military service of the United States of America, that he has knowledge that the said Defendant's last known address is: 107 Audubon Road, Bldg. 1, Suite 19, Wakefield, MA 01880. Sworn to and subscribed before me thisj,?jday of January, 2011. Christopher E. Rice, Esquire La.) A cz??- COMMONWEALTH OF PENNSYLVANIA Seal Notarial N t ublic Mary M PrIM Notary PubNc Ca We Elm, CuTbaftW County W Cot? E)qkn Aug. 18, 2011 Member. Penns*w6a Assoclatl m of WMem Christopher E. Rice, Esquire Attorney I.D. No. 90916 R. Christopher VanLandingham, Esquire Attorney I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff TURNER HYDRAULICS, INC., Plaintiff V. PRISM BUILDERS, INC., and WAL-MART STORES, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010 - 6983 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA ) : SS COUNTY OF CUMBERLAND 1 Christopher E. Rice, Esquire, being duly sworn according to law, deposes and says that he is an employee of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, attorneys for the Plaintiff in the above captioned matter and that pursuant to the provisions of the Pennsylvania Rules of Civil Procedure, a notice of intention to enter default judgment against Defendant Prism Builders, Inc. was given to it by mail on December 30, 2010. Christopher E. Rice, Esquire Sworn to and subscribed before me this 924 day of January, 2011. t a4U No ublic COMMONWEALTH OF PENNSYLVANIA Notarrdl Seal Mary M. Price, Notary Pt#rlic Cafte Boro, Cumberland County my conrmiss w Exprw Aug. 98, 2091 Member, Psnrw ivaMe Assodsom of No1?9ae CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Matt Genzale 107 Audubon Road Bldg. 1, Suite 19 Wakefield, MA 01880 MARTSON LAW OFFICES By J144) ?J, (?? M A4. Price 10 E st High Street Carlisle, PA 17013 Dated: This is a debt collecting firm attempting to collect a debt. Any information obtained will be used for that purpose. McCARTER & ENGLISH, LLP By: Michael J. Glasheen Identification No. 17153 BNY Mellon Center 1735 Market Street Suite 700 Philadelphia, PA 19103-7501 215-979-3800 TURNER HYDRAULICS, INC. Plaintiffs vs. t .;-J F iCc Attorneys f®r D n THONOTAR`, WAL-MART STORES, IN , ?511 MAI, 23 10? ? UIYPEN NSrLVANIA TY CUMBERLAND COUNTY COURT OF COMMON PLEAS PRISM BUILDERS, INC. and WAL-MART NO. 2010 - 6983 CIVIL TERM STORES, INC. Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of the defendant, Wal-Mart Stores, Inc. only. McCARTER & ENGLISH, LLP Dated: March 22, 2011 By:_'_? yj ? ?" Michael J. CUash6en ` Attorneys for Defendant, Wal-Mart Stores, Inc ME 1 11391760v.1 CERTIFICATE OF SERVICE I, Michael J. Glasheen, Esquire, do hereby certify that I caused a true and correct copy of the foregoing Entry of Appearance to be served by first class U.S. Mail, postage prepaid, upon the following: Christopher E. Rice, Esquire Martson Deardorff Williams Otto Gilroy & Faller 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff (also sent via email) Prism Builders, Inc. 107 Audubon Road Building 1, Suite 19 Wakefield, MA 01880 7 MICHAEL J. GL S EN Dated: March 22, 2011 ME1 11391760v.1 'In AM 9 Q1t ?"-ItYLVANIA f ENNS TO PLAINTIFF: YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. .AAI??g ffl?e?' By: Michael J. GI h , Esq. Attorney for Defendant Wal-Mart Stores, Inc. TO PRISM BUILDERS, INC.: YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED CROSS-CLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YO . By: Michael J. G n, Esq. Attorney for Defen ant Wal-Mart Stores, Inc. Michael J. Glasheen, Esquire Attorney I.D. No. 17153 McCARTER & ENGLISH, LLP BNY Mellon Center 1735 Market Street, Suite 700 Philadelphia, PA 19103-7501 (215) 979-3800 (215) 979-3899 (fax) Attorneys for Defendant Wal-Mart Stores, Inc. TURNER HYDRAULICS, INC., Plaintiff V. PRISM BUILDERS, INC., and WAL-MART STORES, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-6983 CIVIL TERM ANSWER OF DEFENDANT WAL-MART STORES INC. AND CROSS-CLAIM Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 1, and therefore denies those allegations. ME 111405173v.1 2. Upon information and belief, Defendant Wal-Mart Stores, Inc. admits the allegations contained in paragraph 2. Defendant Wal-Mart Stores, Inc. denies that it is an Arkansas corporation, and states that it is incorporated under the laws of Delaware. Defendant Wal-Mart Stores, Inc. admits the remaining allegations contained in paragraph 3. 4. Defendant Wal-Mart Stores, Inc. admits the allegations contained in paragraph 4. 5. Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 5, and therefore denies those allegations. 6. Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 6, and therefore denies those allegations. Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 7, and therefore denies those allegations. Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 8, and therefore denies those allegations. 9. Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 9, and therefore denies those allegations. 2 ME 1 11405173v.1 10. Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 10, and therefore denies those allegations. 11. Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 11, and therefore denies those allegations. 12. Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 12, and therefore denies those allegations. 13. Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 13, and therefore denies those allegations. Count I - Breach of Contract Turner Hydraulics, Inc. v. Prism Builders, Inc 14. Defendant Wal-Mart Stores, Inc. repeats its answers to paragraphs "1" through "13" and incorporates them herein. 15. The allegations in Count I do not apply to answering defendant, and, accordingly, no response is required. If any response is required, defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 15, and therefore denies those allegations. Count II - Uniust Enrichment Turner Hydraulics, Inc. v Prism Builders, Inc 16. Defendant Wal-Mart Stores, Inc. repeats its answers to paragraphs "1" through "15" and incorporates them herein. ME 1 11405173v.1 17- 20. The allegations in Count II do not apply to answering defendant, and, accordingly, no response is required. If any response is required, defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 17, 18, 19 and 20 and therefore denies those allegations. Count III - Uniust Enrichment Turner Hydraulics, Inc. v. Wal-Mart Stores, Inc 21. Defendant Wal-Mart Stores, Inc. repeats its answers to paragraphs "1" through "20" and incorporates them herein. 22. Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 22, and therefore denies those allegations. 23. Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 23, and therefore denies those allegations. 24. Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the implications contained in the allegations of paragraph 24 that Plaintiff performed work at the Store for which it was not paid, and therefore denies those allegations. Defendant Wal-Mart Stores, Inc. denies that it was unjustly enriched in the amount of $23,250.00 by accepting and retaining any benefits Plaintiff might have conferred under a subcontract with Defendant Prism Builders, Inc. as Defendant Wal-Mart Stores, Inc. paid Defendant Prism Builders, Inc. all moneys due under the Construction Contract, including for the work Plaintiff alleges it completed, with the exception of the 10% retainage amount Defendant Wal-Mart Stores, Inc. was entitled to withhold pursuant 4 ME 1 11405173v.1 to the terms of the Construction Contract. Defendant Wal-Mart Stores, Inc. further states that even if Plaintiff did, in fact, perform the work it alleges, and even if Defendant Prism Builders, Inc. failed to pay Plaintiff for that work, the most that Defendant Wal-Mart Stores, Inc. could have been unjustly enriched is $2,325.00, or 10% of the value of the work Plaintiff alleges it performed. 25. Defendant Wal-Mart Stores, Inc. states that, after reasonable investigation, it is without knowledge or information sufficient to form a belief as to the truth of the implications contained in the allegations of paragraph 24 that Plaintiff performed work at the Store for which it was not paid, and therefore denies those allegations. Defendant Wal-Mart Stores, Inc. denies that it was unjustly enriched in the amount of $23,250.00 by accepting and retaining any benefits Plaintiff might have conferred under a subcontract with Defendant Prism Builders, Inc. as Defendant Wal-Mart Stores, Inc. paid Defendant Prism Builders, Inc. all moneys due under the Construction Contract, including for the work Plaintiff alleges it completed, with the exception of the 10% retainage amount Defendant Wal-Mart Stores, Inc. was entitled to withhold pursuant to the terms of the Construction Contract. Defendant Wal-Mart Stores, Inc. further states that even if Plaintiff did, in fact, perform the work it alleges, and even if Defendant Prism Builders, Inc. failed to pay Plaintiff for that work, the most that Defendant Wal-Mart Stores, Inc. could have been unjustly enriched is $2,325.00, or 10% of the value of the work Plaintiff alleges it performed. ME 1 11405173v.1 NEW MATTER FIRST AFFIRMATIVE DEFENSE 26. Plaintiff's Complaint fails to state a cause of action against Defendant Wal-Mart Stores, Inc. upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE 27. Plaintiff's claims are barred by the pay if paid provisions of the subcontract between Plaintiff and Defendant Prism Builders, Inc. THIRD AFFIRMATIVE DEFENSE 28. Plaintiff s claims are barred by the applicable statute of repose and statute of limitations. FOURTH AFFIRMATIVE DEFENSE 29. Plaintiff s claims are barred because Defendant Wal-Mart Stores, Inc. has paid in full all sums it became obligated to pay to the contractor on the Project and therefore no amount is due or to become due thereunder. FIFTH AFFIRMATIVE DEFENSE 30. Plaintiff s claims are barred in whole or in part by the doctrine of waiver and/or estoppel. SIXTH AFFIRMATIVE DEFENSE 31. Plaintiff s claims are barred to the extent that the labor, material, equipment and services claimed by Plaintiff were provided through a contractor other than Defendant Prism Builders, Inc. 6 ME1 11405173v.1 SEVENTH AFFIRMATIVE DEFENSE 32. Plaintiff's claims are barred in whole or in part due to the non-occurrence of conditions precedent required to assert such claims or commence this action. EIGHTH AFFIRMATIVE DEFENSE 33. Plaintiff's claim in unjust enrichment is barred to the extent there is a remedy under a contract. NINTH AFFIRMATIVE DEFENSE 34. Plaintiff's claim in unjust enrichment is barred to the extent that defendant Wal- Mart Stores, Inc. has already made payment on the project to Prism Builders, Inc. TENTH AFFIRMATIVE DEFENSE 35. Plaintiff's remedy for payment lies solely against the party with which it contracted, namely Prism Builders, Inc. WHEREFORE, Defendant Wal-Mart Stores, Inc. demands that Plaintiff's claims against Defendant Wal-Mart Stores, Inc. seeking $23,250.00 be dismissed, and that it be awarded its costs of suit and any other relief this Court deems appropriate. CROSS-CLAIM OF DEFENDANT WAL-MART STORES INC. Defendant Wal-Mart Stores, Inc. hereby makes the following cross-claim against co- Defendant Prism Builders, Inc. for: Breach of Contract - failure to defend; Breach of Contract - Failure to Pay Subcontractor; Breach of Contract -- Failure to Complete; Contractual Indemnification, Declaratory Judgment, Intentional Misrepresentation, and Violation of Mass. Gen. L. Ch. 93A. 7 ME 1 11405173v.] PARTIES 1. Defendant Wal-Mart Stores, Inc. is a corporation organized under the laws of Delaware, with a principal place of business in Bentonville, Arkansas. 2. Defendant Prism Builders, Inc. is upon information and belief a Massachusetts corporation with a principal place of business at 107 Audubon Road, Wakefield, Massachusetts. FACTS 3. On or about March 31, 2009, Defendant Wal-Mart Stores, Inc. entered into a contract (the "General Contract") with Defendant Prism Builders, Inc. for the construction renovation project known as the Wal-Mart Gardner, MA #2155-114 (the "Project"). 4. Under the terms of the General Contract, Defendant Prism Builders, Inc. was required to perform certain renovation and construction work ("Work"), and complete other obligations including, but not limited to, obtaining final lien waivers and warranties from its subcontractors. The original price of the General Contract was $678,700.00. 6. Pursuant to the terms of the General Contract, Defendant Wal-Mart Stores, Inc. was entitled to withhold 10% retainage from each of Defendant Prism Builders, Inc.'s payment applications, which sums would be withheld until Defendant Prism Builders, Inc. completed all of its obligations under the General Contract. 7. Defendant Wal-Mart Stores, Inc. did in fact retain 10% from each of Defendant Prism Builders, Inc.'s payment applications, resulting in Defendant Wal-Mart Stores, Inc. paying Defendant Prism Builders, Inc. 90% of the price of the General Contract, including for that work Plaintiff in the instant matter alleges to have performed. 8 ME 1 11405173v.1 Defendant Prism Builders, Inc. failed to complete all of its obligations under the General Contract, including some of the Project, and other obligations under the General Contract including obtaining lien releases from its subcontractors. 9. Defendant Wal-Mart Stores, Inc. repeatedly requested that Defendant Prism Builders, Inc. complete its obligations under the General Contract, but Defendant Prism Builders, Inc. failed to do so. 10. Plaintiff has alleged that Defendant Prism Builders, Inc. failed to pay it for work it performed on the Project. 11. As a result of Defendant Prism Builders, Inc. failing and refusing to complete its Work on the Project, Defendant Wal-Mart Stores, Inc. hired another general contractor to complete Defendant Prism Builders, Inc.'s Work on the Project. 12. Pursuant to the terms of the General Contract, Defendant Prism Builders, Inc. has an obligation to, among other things, indemnify, defend, and hold harmless Defendant Wal-Mart Stores, Inc. against claims of any actual or alleged actions or omissions of Defendant Prism Builders, Inc. in connection with the performance of the Work, including any claims by Defendant Prism Builders, Inc.'s subcontractors. 13. Defendant Prism Builders, Inc. has failed and refused to indemnify, defend and hold harmless Defendant Wal-Mart Stores, Inc. from Plaintiff's claims. Count I: Breach of Contract - Failure to Defend Wal-Mart Stores, Inc. v. Prism Builders, Inc 14. Defendant Wal-Mart Stores, Inc. restates paragraphs 1 through 13 as if fully set forth herein. 15. All conditions precedent to the maintenance of this action have occurred and have been performed. 9 ME] 11405173v.1 16. Pursuant to the terms of the General Contract, Defendant Prism Builders, Inc. agreed to indemnify, defend and hold harmless Defendant Wal-Mart Stores, Inc. from any and all damages arising from any lien and other claims on the Project arising from Defendant Prism Builders, Inc.'s acts and omissions. 17. Defendant Prism Builders, Inc. has failed and refused to defend and hold harmless Defendant Wal-Mart Stores, Inc. from Plaintiff's claims against Defendant Wal-Mart Stores, Inc. arising from Defendant Prism Builders, Inc.'s work and omissions on the Project. 18. Defendant Prism Builders, Inc. has no valid excuse for its material breaches of the General Contract. 19. Defendant Prism Builders, Inc.'s breaches of the General Contract have caused Defendant Wal-Mart Stores, Inc. to suffer loss and incur damages, which Defendant Wal-Mart Stores, Inc. continues to suffer and incur. WHEREFORE, Defendant Wal-Mart Stores, Inc. respectfully requests that this Court enter judgment on behalf of Defendant Wal-Mart Stores, Inc. in an amount to be determined at trial, including interest, costs, attorneys' fees, and such other and further relief as this Court deems just. Count II: Breach of Contract - Failure to Pay Subcontractor Wal-Mart Stores, Inc. v. Prism Builders, Inc 20. Defendant Wal-Mart Stores, Inc. restates paragraphs 1 through 19 as if fully set forth herein. 21. All conditions precedent to the maintenance of this action have been performed. 22. Pursuant to the terms of the General Contract, Defendant Prism Builders, Inc. agreed to pay all subcontractors on the Project. 10 M E 1 11405173v.1 23. Pursuant to the terms of the General Contract, Application and Certifications for Payment were made part of the General Contract. 24. Pursuant to the terms of the Application and Certificate for Payment, Defendant Prism Builders, Inc. agreed to pay all subcontractors and through the period covered by previous payments received from Defendant Wal-Mart Stores, Inc. 25. On information and belief, Defendant Prism Builders, Inc. failed and refused to pay Plaintiff, in breach of the terms of the General Contract and Application and Certificate of Payments. 26. Defendant Prism Builders, Inc. has no valid excuse for its material breach of the General Contract. 27. Defendant Prism Builders, Inc.'s breaches of the General Contract have caused Defendant Wal-Mart Stores, Inc. to suffer loss and incur damages, which Defendant Wal-Mart Stores, Inc. continues to suffer and incur. WHEREFORE, Defendant Wal-Mart Stores, Inc. respectfully requests that this Court enter judgment on behalf of Defendant Wal-Mart Stores, Inc. in an amount to be determined at trial, including interest, costs, attorneys' fees, and such other and further relief as this Court deems just. Count III: Breach of Contract -- Failure to Complete Wal-Mart Stores, Inc. v. Prism Builders, Inc 28. Defendant Wal-Mart Stores, Inc. restates paragraphs 1 through 27 as if fully set forth herein. 29. All conditions precedent to the maintenance of this action have been performed. 30. Pursuant to the General Contract, Defendant Prism Builders, Inc. was required to complete the Work on the Project. ME] 11405173v.] 31. Defendant Prism Builders abandoned its Work before it completed the Project. 32. Defendant Wal-Mart Stores, Inc. made repeated requests that Defendant Prism Builders, Inc. return to Complete its Work, but Defendant Prism Builders, Inc. refused. 33. As a result, Defendant Wal-Mart Stores, Inc. was required to hire another contractor to complete Defendant Prism Builders, Inc.'s work on the Project. 34. Defendant Prism Builders, Inc. has no valid excuse for its material breach of the General Contract. 35. Defendant Wal-Mart Stores, Inc. has suffered, and continues to suffer harm, as a result of Defendant Prism Builders, Inc.'s breaches. Count IV: Contractual Indemnification Wal-Mart Stores, Inc. v. Prism Builders, Inc 36. Defendant Wal-Mart Stores, Inc. restates paragraphs 1 through 35 as if fully set forth herein. 37. All conditions precedent to the maintenance of this action have been performed. 38. Pursuant to the General Contract, Defendant Prism Builders, Inc. agreed to indemnify and hold harmless Defendant Wal-Mart Stores, Inc. from claims asserted by Plaintiff against Defendant Wal-Mart Stores, Inc. arising from Defendant Prism Builders, Inc.'s acts and omissions on the Project. 39. Plaintiff has asserted claims of unjust enrichment against Defendant Wal-Mart Stores, Inc. that it alleges arises from Defendant Prism Builders, Inc.'s acts, and omissions on the Project. 40. While Defendant Wal-Mart Stores, Inc. denies that it is liable to Plaintiff for damages, such damages are the responsibility of Defendant Prism Builders, Inc., and have arisen from Defendant Prism Builders, Inc. acts and omissions. 12 ME 1 11405173v.1 WHEREFORE, Defendant Wal-Mart Stores, Inc. respectfully requests that this Court enter judgment on behalf of Defendant Wal-Mart Stores, Inc. in an amount to be determined at trial, including interest, costs, attorneys' fees, and such other and further relief as this Court deems just. Count V: Declaratory Judgment Wal-Mart Stores, Inc. v. Prism Builders, Inc 41. Defendant Wal-Mart Stores, Inc. restates paragraphs 1 through 40 as if fully set forth herein. 42. An actual controversy exists between Defendant Wal-Mart Stores, Inc. and Defendant Prism Builders, Inc. concerning whether Wal-Mart is entitled to indemnification and defense from Defendant Prism Builders, Inc. under the General Contract. 43. Defendant Wal-Mart Stores, Inc. is entitled to a declaration from this Court that it is entitled to indemnification and defense from Defendant Prism Builders, Inc. pursuant to the indemnification provision contained in the General Contract. WHEREFORE, Defendant Wal-Mart Stores, Inc. respectfully requests that this Court declare that Defendant Wal-Mart Stores, Inc. is entitled to indemnification and defense from Defendant Prism Builders, Inc. pursuant to the indemnification provision contained in the General Contract. Count VI: Intentional Misrepresentation Wal-Mart Stores, Inc. V. Prism Builders, Inc 44. Defendant Wal-Mart Stores, Inc. restates paragraphs 1 through 43 as if fully set forth herein. 45. The Application and Certificate for Payments on the Project required Defendant Prism Builders, Inc. to "certify that payments, less applicable retention, have been made through the period covered by previous payments received from Defendant Wal-Mart Stores, Inc. to (1) 13 ME 1 11405173v.1 all my subcontractors and sub-subcontractors, and (2) for all materials and labor used in or in connection with the performance of this Contract." 46. Defendant Prism Builders, Inc. repeatedly made representations in writing in each of its multiple Application and Certificate for Payments that it paid all subcontractors through the period covered by previous payments received from Defendant Wal-Mart Stores, Inc. 47. On information and belief, Defendant Prism Builders, Inc. failed and refused to make payment to Plaintiff and its other subcontractors for periods covered by payments received from Defendant Wal-Mart Stores, Inc. 48. When Defendant Prism Builders, Inc. made its representations, it knew the representations were false. 49. Defendant Prism Builders, Inc. made its representations intending that Defendant Wal-Mart Stores, Inc. rely on them. 50. Defendant Wal-Mart Stores, Inc. relied on Pyramid's representations, to its detriment, by continuing to make payment to Defendant Prism Builders, Inc. 51. All conditions precedent to the maintenance of this action have occurred and been satisfied. WHEREFORE, Defendant Wal-Mart Stores, Inc. respectfully requests that this Court enter judgment on behalf of Defendant Wal-Mart Stores, Inc. in an amount to be determined at trial, including interest, costs, attorneys' fees, and such other and further relief as this Court deems just. Count VII: Violation of Mass. Gen. L. Ch. 93A Wal-Mart Stores, Inc. v. Prism Builders, Inc 52. Defendant Wal-Mart Stores, Inc. restates paragraphs 1 through 51 as if fully set forth herein. 14 ME 1 11405173v.1 53. Defendant Prism Builders, Inc. was engaged in trade or commerce as those terms are used in Section 2 and defined in Section 1 of Mass. Gen. L. Ch. 93A. 54. All services performed by Defendant Prism Builders, Inc. on the Project were in Massachusetts. 55. Defendant Prism Builders, Inc. repeatedly made false representations in writing on multiple Application and Certificate for Payments that Defendant Prism Builders, Inc. paid all subcontractors through the period covered by previous payments received from Defendant Wal- Mart Stores, Inc. 56. On information and belief, Defendant Prism Builders, Inc. failed and refused to make payment to Plaintiff. 57. Defendant Prism Builders, Inc.'s conduct of failing and refusing to make payment to Plaintiff and its other subcontractors for the services performed on the Project constituted unfair methods of competition and/or unfair or deceptive acts or practices in the conduct of trade or commerce and violates the provisions of Mass. Gen. L. Ch. 93A. 58. Defendant Prism Builders, Inc.'s wrongful conduct was willful, intentional, and knowing, entitling Defendant Wal-Mart Stores, Inc. to double or treble damages and attorneys' fees. 59. As a direct and proximate result of Defendant Prism Builders, Inc.'s acts of unfair competition, Defendant Wal-Mart Stores, Inc. has been injured. 15 ME 1 11405173v.1 WHEREFORE, Defendant Wal-Mart Stores, Inc. respectfully requests that this Court enter judgment on behalf of Defendant Wal-Mart Stores, Inc. in an amount to be determined at trial, including interest, costs, attorneys' fees, and such other and further relief as this Court deems just. WAL-MART STORES, INC. By its attorneys, _; ?U r A L/,Z Michael J. Gl she Attorney I.D. mber 17153 McCarter & English, LLP BNY Mellon Center 1735 Market Street, Suite 700 Philadelphia, PA 19103-7501 (215) 979-3800 Dated: March 25, 2011 16 ME 1 11405173v.1 VERIFICATION e ti 5f - a? s deposes and says he/she is c2na r?vc'?i on/ of Wal- Mart Stores, Inc., that he/she is authorized to take this Verification on its behalf, and the facts set forth in the foregoing Answer and Crossclaim are true and correct to the best of my knowledge, information and belief. I understand that knowingly false statements are a violation of 18 Pa.C.S.A. § 4904 relating to unsworn falsifications to authorities. Dated: March -:?5 1 2011 Name: ME1 11408702v.1 CERTIFICATE OF SERVICE I, Michael J. Glasheen, Esquire, do hereby certify that I caused a true and correct copy of the foregoing Answer of Defendant Wal-Mart Stores, Inc. and Cross-Claim to be served by first class U.S. Mail, postage prepaid, upon the following: Christopher E. Rice, Esquire Martson Deardorff Williams Otto Gilroy & Faller 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff (also sent via email) Prism Builders, Inc. 107 Audubon Road Building 1, Suite 19 Wakefield, MA 01880 (also sent via Certified Mail - R.R.R. - 7008 0500 0001 1338 4963) C MICHAEL A HEEN Dated: March 25, 2011 ME1 11418156v.1 McCARTER & ENGLISH, LLP By: Michael J. Glasheen Identification No. 17153 BNY Mellon Center 1735 Market Street Suite 700 Philadelphia, PA 19103-7501 215-979-3800 Attorneys for Defendant, WAL-MART STORES, INC. C rn co ,T: rq ,-::o k? rr1...,; ? yam. ° o a -== z o? TURNER HYDRAULICS, INC. CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff vs. PRISM BUILDERS, INC. and WAL-MART NO. 2010 - 6983 CIVIL TERM STORES, INC. Defendants TO THE PROTHONOTARY: PRAECIPE Kindly substitute the attached original Verification of Steve Gattis, dated March 25, 2011, for the faxed Verification of Mr. Gattis that was attached to Defendant Wal-Mart Stores, Inc.'s Answer and Cross-Claim, which has been filed of record. McCARTER & ENGLISH, LLP Dated: March 29, 2011 By: 44?L Michael J. Glash e Attorneys for Defendant, Wal-Mart Stores, Inc ME 1 11432896v.1 VERIFICATION 5/e m?C T? s deposes and says he/she is ?ns?,.,?i onl fof Wal- Mart Stores, Inc., that he/she is authorized to take this Verification on its behalf, and the facts set forth in the foregoing Answer and Crossclaim are true and correct to the best of my knowledge, information and belief. I understand that knowingly false statements are a violation of 18 Pa.C.S.A. § 4904 relating to unsworn falsifications to authorities. Dated: March -:?5 1 2011 Name: MEl 11408702v.1 CERTIFICATE OF SERVICE I, Michael J. Glasheen, Esquire, do hereby certify that I caused a true and correct copy of the foregoing Praecipe to be served by first class U.S. Mail, postage prepaid, upon the following: Christopher E. Rice, Esquire Martson Deardorff Williams Otto Gilroy & Faller 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff Prism Builders, Inc. 107 Audubon Road Building 1, Suite 19 Wakefield, MA 01880 MICHAEL J. GL EN Dated: March 29, 2011 M E 1 11432896v.1 4 10- FILED-OFFICE F:\Clients\7436 Turner HydraulicsV436.54V43654.res.newmatter.wpd OF THE PROTHONOTARY 2011 APR -4 AM 11: 55 Christopher E. Rice, Esquire CUMBERLAND COUNTY Attorney I.D. No. 90916 PENNSYLVANIA R. Christopher VanLandingham, Esquire Attorney I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff TURNER HYDRAULICS, INC., Plaintiff V. PRISM BUILDERS, INC., and WAL-MART STORES, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2010 - 6983 CIVIL TERM PLAINTIFF'S RESPONSE TO DEFENDANT WAL-MART STORES INC.'S NEW MATTER AND NOW, comes Plaintiff Turner Hydraulics, Inc. and responds to Defendant Wal-Mart Stores, Inc.'s New Matter averring as follows: NEW MATTER 26. Denied. The averments of this paragraph are conclusions of law to which no response is required and proof thereof is demanded at trial. To the extent that a response is deemed required they are denied. 27. Denied. The averments of this paragraph are conclusions of law to which no response is required and proof thereof is demanded at trial. To the extent that a response is deemed required they are denied. 28. Denied. The averments of this paragraph are conclusions of law to which no response is required and proof thereof is demanded at trial. To the extent that a response is deemed required they are denied. 29. Denied. The averments ofthis paragraph are conclusions of law to which no response ,-e- is required and proof thereof is demanded at trial. To the extent that a response is deemed required they are denied. 30. Denied. The averments of this paragraph are conclusions of law to which no response is required and proof thereof is demanded at trial. To the extent that a response is deemed required they are denied. 31. Denied. The averments ofthis paragraph are conclusions of law to which no response is required and proof thereof is demanded at trial. To the extent that a response is deemed required they are denied. 32. Denied. The averments of this paragraph are conclusions of law to which no response is required and proof thereof is demanded at trial. To the extent that a response is deemed required they are denied. 33. Denied. The averments ofthis paragraph are conclusions of law to which no response is required and proof thereof is demanded at trial. To the extent that a response is deemed required they are denied. 34. Denied. The averments of this paragraph are conclusions of law to which no response is required and proof thereof is demanded at trial. To the extent that a response is deemed required they are denied. 35. Denied. The averments of this paragraph are conclusions of law to which no response is required and proof thereof is demanded at trial. To the extent that a response is deemed required they are denied. WHEREFORE, Plaintiff demands judgment against Defendant Wal-Mart Stores, Inc. in the amount of $23,250.00, plus interest until the debt is paid in full, costs of suit, and any other relief this Court deems appropriate. MARTSON LAW OFFICES ss- By: Christopher E. Rice, Esquire I.D. No. 90916 R. Christopher VanLandingham, Esquire I.D. No. 307424 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: ?/ l f , 2011 Attorneys for Plaintiff v CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, hereby certify that a copy of the foregoing Response to Defendant's New Matter was served this date by depositing same in the Post Office at Carlisle, PA, First Class Mail, postage prepaid, addressed as follows: Michael J. Glasheen, Esquire McCARTER & ENGLISH ATTORNEYS AT LAW BNY Mellon Center 1735 Market Street, Suite 700 Philadelphia, PA 19103 Prism Builders, Inc. 107 Audubon Road, Bldg. 1 Suite 19, Wakefield, MA 01880 MARTSON LAW OFFICES By: V( y4w) , Gld?- Ma;? Price Ten Eat High Street Carlisle, PA 17013 (717) 243-3341 Dated: Lf Lf ?? •F TILES\Clients\7436 Turner Hydraulics\7436.54\7436.54.pra.2 Christopher E. Rice, Esquire nf?1_ r, ,. E{LED--OF E !D Attorney I.D. No. 90916 " ` R. Christopher VanLandingham, Esquire 7011 AUG -2 AM 11: 01 Attorney I.D. No. 307424 . I "I" MARTSON DEARDORFF WILLIAMS OTTO GILROY & FAL ftERLA D COUii MARTSON LAW OFFICES PENNSYLVANIA 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff TURNER HYDRAULICS, INC., Plaintiff V. PRISM BUILDERS, INC., and WAL-MART STORES, INC., Defendants TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2010 - 6983 CIVIL TERM PRAECIPE Please mark the action against Wal-Mart Stores, Inc., only, discontinued with prejudice. MARTSON LAW OFFICES Dated: 0-'Ji/ By: Christopher E. Rice, Esquire I.D. Number 90916 R. Christopher VanLandingham, Esquire I.D. No. 307424 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff O? ?g ov'f d a1? ? Lk QA. doau 3S CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Michael J. Glasheen, Esquire McCARTER & ENGLISH BNY Mellon Center 1735 Market Street, Suite 700 Philadelphia, PA 19103 Mr. Matt Genzale 107 Audubon Road Bldg. 1, Suite 19 Wakefield, MA 01880 MARTSON LAW OFFICES By M Price 1 ast High Street Carlisle, PA 17013 Dated: Fr/V'/`/ This is a debt collecting firm attempting to collect a debt for Turner Hydraulics, Inc. Any information obtained will be used for that purpose.