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HomeMy WebLinkAbout11-2419 V;r ?.` i ?. COHEN, SEGLIAS, PALLAS, GREENHALL & FURMAN, P.C. By: Jason A. Copley, Esquire Identification No: 72774 jcopley@cohenseglias.com 30 South 17"' Street, 19s' Floor Philadelphia, PA 19103 (215) 564-1700 Attorneys for Plaintiff, Herre Bros., Inc. HERRE BROS., INC. V. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. ?oZy/g e:?, r NECO SYSTEMS, INC, individually, and doing business as NECO EQUIPMENT COMPANY, or in the alternative, NECO SYSTEMS, INC., a/Wa NECO CIVIL ACTION - LAW EQUIPMENT COMPANY, Defendant NOTICE TO DEFEND 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 by 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT FINDING A LAWYER. .00 't 14#7 z? ? s"s 7f1? 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. The Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 HERRE BROS., INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff V. NECO SYSTEMS, INC, individually, and doing business as NECO EQUIPMENT COMPANY, or in the alternative, NECO SYSTEMS, INC., a/k/a NECO EQUIPMENT COMPANY, NO. CIVIL ACTION - LAW Defendant COMPLAINT AND NOW, comes Plaintiff, Herre Bros., Inc. ("Herre"), by and through its attorneys, Cohen Seglias Pallas Greenhall & Furman, P.C., and files this Complaint, stating the following: 1. Herre is a corporation organized under laws of the Commonwealth of Pennsylvania, with its principal place of business located at 4417 Valley Road, Enola, Pennsylvania 17025-1477, which is located Cumberland County, Pennsylvania. Herre is a contractor engaged in the mechanical, electrical and HVAC business of commercial and public construction. 2. Defendant, NECO Systems, Inc. ("NECO Systems"), is a Pennsylvania corporation whose business address is 20 South Second Street, Souderton, PA 18964. 3. It is believed and therefore averred that NECO Systems does business under the name NECO Equipment Company. In the alternative, it is believed and therefore averred that NECO Equipment Company is an alias of NECO Systems. 4. Jurisdiction and venue are proper in this Court because the contract that forms the basis for Herre's cause of action was created in Cumberland County. 5. The amount in controversy in this case does not exceed $50,000 as required by the Local Rules regarding compulsory arbitration. 6. Herre is a general contractor who provides mechanical and electrical services to its customers. 7. NECO Systems is in the business of supplying contractors with various pump systems for use in various construction project applications. In 2006, Herre was a general contractor on a construction project (the "Project") for the Waynesboro Area School District (the "Owner"). 9. In connection with the Project, Herre sought bids from various suppliers for a packaged pump system for the Project's loop water system (the "Pump System") in accordance with the Project's specifications. 10. On or about October 26, 2006, NECO Systems provided Herre a Quotation to provide the Pump System (the "Quotation"). Included with its Quotation, NECO Systems provided its submittals that showed that the Pump System in the Quotation complied with the Project's specifications (the "Submittals"). True and correct copies of the Quotation and Submittals are attached hereto as Exhibit A and are incorporated herein by reference. 11. The Owner approved NECO Systems' Submittals in or about June 2007. 12. On or about June 18, 2007, at its office in Cumberland County, Herre accepted NECO Systems' Quotation and Submittals and issued a Purchase Order to NECO Systems for 2 the Pump System. A true and correct copy of the Purchase Order is attached hereto as Exhibit B and is incorporated herein by reference as if fully set forth. 13. Pursuant to the Purchase Order, NECO Systems delivered and installed the Pump System in or about the spring of 2009. 14. Herre fully paid NECO Systems for the Pump System. 15. In or about August 2010, the Owner learned, and advised Herre, that the Pump System did not conform to the Project's specifications. 16. Specifically, while the Project's specifications, and NECO Systems' approved Submittals, required premium high efficiency motors for the Pump System, NECO Systems provided standard motors in the Pump System. 17. In or about August 2010, the Owner notified Herre that it would not accept the standard motors for the Pump System, but required that Herre provide premium motors in accordance with the Project's specifications, and the approved Submittals from NECO Systems (the "Replacement Motors") 18. In or about August 2010, Herre notified NECO Systems that it had supplied the wrong motors and repeatedly thereafter demanded that NECO Systems provide the Replacement Motors. 19. NECO Systems never responded to Herre's demands. 20. By letter dated September 1, 2010, Herre's counsel also notified NECO Systems that it had provided the wrong motors for the Pump System and demanded that it provide the Replacement Motors. A true and correct copy of the referenced letter is attached hereto as Exhibit C and is incorporated herein by reference. 3 21. Notwithstanding Herre's demand, NECO Systems has failed and refused to provide the Replacement Motors. 22. NECO Systems' refusal and failure to provide the Replacement Motors was unwarranted and unjustified. 23. As a consequence of NECO Systems' refusal and failure to provide the Replacement Motors, Herre was required to obtain the Replacement Motors from another supplier of pump systems, at a cost of $14,606.57. 24. In addition, Herre incurred costs of at least $10,000.00 for its labor resulting from NECO Systems' refusal and failure to provide the Replacement Motors. 25. The arrangement between Herre and NECO Systems, i.e., the issuance of the Purchase Order by Herre and the acceptance of it by NECO Systems, constituted a binding contractual relationship. 26. Pursuant thereto, NECO Systems was obligated to provide a Pump System that fully complied with the Project's specifications and NECO Systems' Submittals. 27. As stated above, the Pump System supplied by NECO Systems did not comply with the Project's specifications or NECO Systems' own Submittals. 28. NECO Systems materially breached the contract by failing to provide a Pump System that fully complied with the Project's specifications and NECO Systems' Submittals 29. As a direct and foreseeable result of NECO Systems' material breach and default, Herre has been forced to obtain the Replacement Motors from another supplier, at significant cost. 30. Herre fully performed all of its contractual obligations. 4 31. As a direct and proximate result of NECO Systems' material breach and default, Herre has incurred damages as set forth above representing labor and material costs to cure NECO Systems' material breach and default. 32. Herre is entitled to recover its damages from NECO Systems. WHEREFORE, Plaintiff, Herre Bros., Inc., respectfully requests that this Honorable Court enter judgment in its favor and against Defendant, NECO Systems, Inc., individually, and doing business as NECO Equipment Company, or in the alternative, against NECO Systems, Inc., a/k/a NECO Equipment Company and award damages as proven by Herre Bros., Inc. in this case, costs, and such other relief as this Court deems just and appropriate. Date: 2_ /7< III Respectfully submitted, COHEN SEGLIAS ALLAS GREENHALL & FURMAN, By: _Jason A. Copley, PA I.D. # 72774 \ jcopley@cohenseglias.com 30 South 17th Street, 19th Floor Philadelphia, PA 19103 (215) 564-1700 Attorneys for Plaintiff, Herre Bros., Inc. EXHIBIT A i 0e: 50 NECO EW I PMErTf r 201" 390"d ow tiaMdwwo, M 1010 ism 21F12 -M 3R# flat 2*M444 TO ALL BIDDERS ATTN: ESTIMATING .%C 7,- Quotatic DATE NUMBER 10/26/046 98 i RCHAS 'RDER 3 TERMS FOB PROJECT NAME On Approval FFA Waynesboro H.S. OTY V V o a DESCRIPTION PRICE EACH TOTAL 1 NECO Pumping Systems Duplex Packaged Circulating System 50,681.00 50,561.00 series PCs (CP-1) to include: -- (2) PACO End-suction flexible coupled pumps for 1700gpm 20W4; 125HP 460YAW (1) Valve package VP Triple poly, Suction diffusers, butterfiys (2) VFD and motor starter, dlsconneds mounted and wkvd (1) Set of system headers with Flex connectors (1) Factory Startup 1 Day g S s del O Olt safe ump amp 1, .QO ,9 8.00 Amtrol mh oq sloe i? k25 p s .45 97 .S1 ata L 1 as . Atit>? mp 25p 61 11 / HP ?6v 3 78 Opp 1 J G hot water ting p for Ogm 15 111 HP 41 (PS ) d any sates O.DO 0.00 Prices are firm for 30 days. TOTAL $64,234.51 V15K our v94 Wu in www.rocoequ9mum.corn Page 1 of 1 LF - 60157 -1750 RPM - Performance Curve W mmbm H. S.-- ITag # CP-1 P.O. # ISO= V. elan I[....... w Hear am. 1 # 0 Condttions of Service Motor Dab ft ?. Temp: deg F uct. Press: psi.a P: 125 208- ?? .G.: is. Press: psi.a PM: 1750 T SO .F.: 1.15 r -.10 isc.: cP Press: psi.a ncl.: ODP s0 PP5843 engineering objectives established for this project. To eliminate the adverse affects resulting from non-specified product or system substitute, detailed compliance with these specifications is implicit. D. The system shall consist of all pumps, motors, adjustable speed drives, automation controls, appurtenant field devices and miscellaneous equipment required for a complete system. All system components are to be provided by a single supplier which shall assume unit responsibility for their coordination, compatibility, performance and proper operation. The system shall be a NECO Products Division VV2000 or equal. E. The following specification describes an integrated system for operating the loop water pump system. F. Only those suppliers with previous in-depth application experience in variable volume water automation should develop proposals for this project. Substitution or deviations will not be allowed, and total system responsibility will be enforced. PUMP PACKAGE: A. The packaged pump system shall be for the loop water system as manufactured by NECO Pumping Systems, Inc. The pump system shall have all piping, valves, pumps, motors, pump controls, control panel and wiring assembled on a heavy steel groutable base with flanged system connections and a single electrical connection for the power wiring. The system flow shall be as noted on drawings. B. Construction shall be horizontal end-suction flexible coupled with cast iron casing, bronze impeller, stainless steel shaft sleeve, steel shaft and mechanical seals for a service temperature of 250°17. Motors shall be NEMA Design B, open frame, inverter duty, drip proof and high efficiency with a 1.15 service factor rating. Synchronous speed of the motors shall be 1750 RPM. Pumps shall not overload the motor at any point on the pump curve. Pump to be dual volute. C. Each pump shall be provided with suction and discharge full lug-type butterfly isolation valves. Valves shall be gear operated for 8" and larger sizes. All piping shall be independently supported. All control sensing lines and gauges shall be piped with shutoff valves. D. Each pump discharge shall be provided with a no-slam check valve, cast iron body with bronze trim. E. Motors shall be PREMIUM high-efficiency type with a minimum efficiency of 85% for 2 through 15 HP and 90% for 20 through 150 HP at full load conditions in accordance with NEMA Standard MG1-I 12.53b which is based upon IEEE Standard 112, Method B. F. All components shall be assembled on a structural steel inertia base suitable for grouting. The piping shall consist of welded black steel. G. Maximum liquid velocity in system or branch piping shall be 6.5' per second. 11. The system shall be hydrostatically tested as a completely assembled package at 125 psig working pressure and flow tested on a certified NBS traceable test stand, then the unit shall be painted with an electrostatic applied epoxy-enamel. 15540-2 EXHIBIT B 159353 06-18-07 NECO Systems, Inc. 20 South Second Street Souderton, PA 18964-1505 251 Herre Bros., Inc C/O WAYNESBORO HS SITE JOB: 1-5-0785 VENDOR DAK 1 1.00 LS NECO PUMPING SYSTEMS DUPLEX 50,561.00 50,561.00 PACKAGED CIRCULATING SYSTEM SERIES PCS (CP-1) TO INCLUDE: TWO PACO END-SUCTION FLEX COUPLED PUMPS FOR 1700 GPM 200 THD, 125 HP, 450V/60/3 ONE VALVE PACKAGE VP TRIPLE DUTY, SUCTION DIFFUSERS, BUTTERFLIES. TWO VFD & MOTOR STARTERS, DISCONNECTS MOUNTED & WIRED. ONE SET OF SYSTEM HEADERS W/ FLEX CONNECTORS. ONE FACTORY START-UP ONE DAY Total 50,561.00 June 18, 2007 9:22 am, Denise Burkhard PLEASE SEND 12 SUBMITTALS & 6 O&M MANUALS FOR APPROVAL. HOLD FOR SUBMITTALS. DELIVERY WILL BE 4 TO 6 WEEKS DELIVERY AFTER SUBMITTAL APPROVAL. EXHIBIT C #1213809-v1 06334-0044 Jason A. Copley Atowney At Law CORM SIOGU PALIAS VIA FAX & REGULAR MAIL Alex Kramer NECO Equipment Company 20 South Second Street Souderton, PA 18964 September 1, 2010 Re: Herre Bros., Inc. - Waynesboro Area School District NECO Equipment Co. Dear Mr. Kramer: 240 North Thud Stitt, 7th Roor Harrisburg. PA 17101 7:7172.34.5530 F: 717.213.0731 jwp?OctFltnatgiias.com www.cohw aegun.com Please be advised that this firm represents Herre Bros., Inc., with respect to the above Project. This letter shall serve as the formal demand of Herre Bros. for NECO Equipment Company to provide replacement motors on the above project. NECO provided two (2) standard CP-1 motors for the duplex variable volume pumps. Both the Project specifications and approved submittals clearly require premium high efficiency motors. If Herre Bros. does not receive written confirmation that the replacement motors have been ordered from the supplier within the next three (3) business days, Herre Bros. will have no choice but to proceed with ordering the correct motors and charge NECO for all costs it incurs to replace the motors. When pursuing its claim against NECO, Herre Bros. will also be reviewing whether or not there is any evidence which shows that you intentionally providing equipment that was different than what was required. Finally, NECO has failed to provide confirmation that replacement seals for the associated leaking pump have been ordered, despite repeated demands to you to address this valid warranty claim. Again, if Hem Bros. does not receive written confirmation that the replacement parts have been ordered within three (3) business days, Herm Bros. will have no choice but to proceed with ordering the needed parts and charging NECO for all costs it incurs to correct this work. Very truly yours, i J N COPLEY JAC Jh cc: Richard A. McBride (via email) William Rollyson (via email) Phdadtl 4 I Pittsburgh I Wilmington I Harrisburg 01073992-vI 06334-MI Now Jersey 1 West Yrgw" VERIFICATION I, R Ic y-s " A. M c-A Lae , have read the foregoing Complaint and hereby affirm and verify that it is true and correct to the best of my knowledge, information and belief. I verify that all of the statements made in the foregoing Complaint are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. Date: ?,6 2 3'? 0 v t l Berkshire Law Group, LLC Scott G. Hoh, Esquire 645 Penn St., Suite 501 Reading, PA 19601 (610) 374-5841 r" ILEO-OFFICE I :" E',RO THOJNO TA ri ,,r, 2011 H'AR 31 APB 10: 43 CUMBERLAND COUNT),' RENN$YLVANIA HERRE BROS., INC., Plaintiff VS. NECO SYSTEMS, INC., individually, and doing business as NECO EQUIPMENT COMPANY, or in the alternative, NECO SYSTEMS, INC., a/k/a NECO EQUIPMENT COMPANY, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 11-2419 CIVIL ACTION - LAW PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Scott G. Hoh, Esquire, and Berkshire Law Group, LLC, Attorney for Defendant, NECO Systems, Inc., individually, and doing business as NECO Equipment Company, or in the alternative, NECO Systems, Inc., a/k/a NECO Equipment Company, in the above-captioned matter, and designate 645 Penn Street, Suite 501, Reading, Pennsylvania 19601, as the location where process and papers may be served. Respectfully submitted, Dated: March L, 2011 BERKSHIWAW GROUP, LLC Scott G. Hoh, Esquire Attorneys for Defendant Berkshire Law Group, LLC Scott G. Hoh, Esquire 645 Penn St., Suite 501 Reading, PA 19601 (610) 374-5841 HERRE BROS., INC., Plaintiff VS. NECO SYSTEMS, INC., individually, and doing business as NECO EQUIPMENT COMPANY, or in the alternative, NECO SYSTEMS, INC., a/k/a NECO EQUIPMENT COMPANY, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 11-2419 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, SCOTT G. HOH, ESQUIRE, attorney for the Defendant in the above-captioned matter, certify that on March, 2011, a true and correct copy of the attached PRAECIPE TO ENTER APPEARANCE was served upon the following party by first class mail, postage prepaid: Attorney for Plaintiff. Jason A. Copley, Esquire Cohen Seglias Pallas Greenhall & Funnan PC 30 South 17'h Street, 190' Floor Philadelphia, PA 19103 Date: March, 2011 Scott G. Hoh, Esquire Attorney for Defendant I ' Berkshire Law Group, LLC Scott G. Hoh, Esquire 645 Penn St., Suite 501 Reading, PA 19601 (610) 374-5841 1. 1LED-OFFICE ': r'i ?TNON0TA Y Jul s 31 AM10:43 1CUMBERLAND COUNTY PENNSYLVANIA HERRE BROS., INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA VS. No. 11-2419 NECO SYSTEMS, INC., individually, and doing business as NECO EQUIPMENT CIVIL ACTION - LAW COMPANY, or in the alternative, NECO SYSTEMS, INC., a/k/a NECO EQUIPMENT COMPANY, Defendant. DEFENDANT'S ANSWER TO COMPLAINT The Defendant, NECO Systems, Inc., individually, and doing business as NECO Equipment Company, or in the alternative, NECO Systems, Inc., a/k/a NECO Equipment Company ("NECO"), by and through their attorney, Scott G. Hoh, Esquire, and Berkshire Law Group, LLC, hereby file this Answer to Plaintiff's Complaint, and in support thereof, aver as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. The contents of Paragraph 4 contain averments of law and/or conclusions of law to which no responsive pleading is required. 5. Admitted. 6. Admitted. 7. Admitted and Denied. NECO is a manufacturing and distribution company, and provides a range of services, including the direct installation of pump package systems. 8. Denied. The contents of Paragraph 8 contain averments of law and/or conclusions of law to which no responsive pleading is required. 9. Admitted. 10. Denied. The contents of Paragraph 10 contain averments of law and/or conclusions of law to which no responsive pleading is required. 11. Denied. The contents of Paragraph 11 contain averments of law and/or conclusions of law to which no responsive pleading is required. 12. Denied. The contents of Paragraph 12 contain averments of law and/or conclusions of law to which no responsive pleading is required. 13. Denied. The contents of Paragraph 13 contain averments of law and/or conclusions of law to which no responsive pleading is required. 14. Denied. The contents of Paragraph 14 contain averments of law and/or conclusions of law to which no responsive pleading is required. 15. Denied. The contents of Paragraph 15 contain averments of law and/or conclusions of law to which no responsive pleading is required. 16. Denied. The contents of Paragraph 16 contain averments of law and/or conclusions of law to which no responsive pleading is required. 17. Denied. Defendant NECO is without knowledge regarding what communications, if any, occurred between the Owner and Herre Bros., Inc. ("Herre") and strict proof, if necessary, is demanded at trial. 18. Denied. The contents of Paragraph 18 contain averments of law and/or conclusions of law to which no responsive pleading is required. 19. Denied. The contents of Paragraph 19 contain averments of law and/or conclusions of law to which no responsive pleading is required. 20. Denied. The contents of Paragraph 20 contain averments of law and/or conclusions of law to which no responsive pleading is required. 21. Denied. The contents of Paragraph 21 contain averments of law and/or conclusions of law to which no responsive pleading is required. 22. Denied. The contents of Paragraph 22 contain averments of law and/or conclusions of law to which no responsive pleading is required. 23. Denied. The contents of Paragraph 23 contain averments of law and/or conclusions of law to which no responsive pleading is required. 24. Denied. The contents of Paragraph 24 contain averments of law and/or conclusions of law to which no responsive pleading is required. 25. Denied. The contents of Paragraph 25 contain averments of law and/or conclusions of law to which no responsive pleading is required. 26. Denied. The contents of Paragraph 26 contain averments of law and/or conclusions of law to which no responsive pleading is required. 27. Denied. The contents of Paragraph 27 contain averments of law and/or conclusions of law to which no responsive pleading is required. 28. Denied. The contents of Paragraph 28 contain averments of law and/or conclusions of law to which no responsive pleading is required. 29. Denied. The contents of Paragraph 29 contain averments of law and/or conclusions of law to which no responsive pleading is required. 30. Denied. The contents of Paragraph 30 contain averments of law and/or conclusions of law to which no responsive pleading is required. 31. Denied. The contents of Paragraph 31 contain averments of law and/or conclusions of law to which no responsive pleading is required. 32. Denied. The contents of Paragraph 32 contain averments of law and/or conclusions of law to which no responsive pleading. WHEREFORE, Defendant, NECO Systems, Inc., individually, and doing business as NECO Equipment Company, or in the alternative, NECO Systems, Inc., a/k/a NECO Equipment Company, demand judgment in their favor and against the Plaintiff, together with such other relief as this Court deems just and appropriate under all the circumstances. NEW MATTER 33. Defendants hereby incorporate paragraphs 1 through 32 of this Answer with New Matter as though set forth herein at length. 34. The motors that are the subject of this dispute are part of a package pump system assembled by NECO and delivered to Herre at the Waynesboro School District location. 35. NECO prepared submittal data entitled "Waynesboro High School Duplex Packaged Circulating System, Model PCS 8015-125-10" on or about June 20, 2007. 36. NECO received a purchase order from Herre based on this submittal data, on or about June 21, 2007. 37. NECO invoiced Herre on September 21, 2007 and it is NECO's customary business practice to invoice customers at the time of shipment. 38. NECO delivered the package pump system to Waynesboro High School on or about September 21, 2007. NECO used its delivery truck for this delivery, and the package pump system was accepted by Herre. 39. NECO technicians installed an electrical disconnect, ran conduit and performed other functions on December 21, 2007, and it is believed that the pump start-up occurred on or about February 6, 2008. 40. NECO received a letter from attorney Jason Copley of Cohen, Seglias, Pallas, Greenhall & Furman, P.C., representing Herre expressing a demand to replace the pump motor to a premium efficient motor on September 1, 2010. This contact occurred approximately thirty-three (33) months, after the pump system was delivered and started. During this nearly three (3) year period, the pumps were used by the Waynesboro School District and NECO was not made aware of any problems or deficiencies, other than a problem with seal leaks. 41. The September 1, 2010 letter from Herre attorney to NECO also incorrectly states that NECO must replace pump seals under a product warranty, when these types of seals are not covered under any warranty. 42. The dispute centers around whether or not the pump motor was a premium efficient motor or not. The motor installed, provided by the pump manufacturer PACO Pumps, which utilized a Baldor Electric Company motor, included a motor with a 94.5% efficiency rating. As such, this efficiency rating exceeds the project specifications and can be classified as a premium efficient motor. 43. Another factor in the definition of a premium efficient motor is the class of electrical insulation. The motor as delivered has a "B" classification, which is slightly less than an "F" insulation classification associated with a premium efficient motor. 44. NECO contends that the motor and pump package as delivered satisfies the premium efficiency motor rating set forth in the project specification. 45. NECO also contends that the difference between a premium efficient motor and the model provided is de minis, and neither Herre nor the Waynesboro School District has suffered any economic damage due to the operation of pump system's motors. 46. Herre contends that NECO intentionally falsified records or deliberately installed a pump package system with a motor less than the project specifications. Any actions on NECO's part were purely accidental or were based on a mistake and did not involve any intentional or fraudulent conduct. 47. In September of 2010, NECO's attorney provided information to Herre's attorney regarding the efficiency classification of the motor installed and also inquired whether there was any failure of the pump system or motor related to the approximately three (3) year old pump installation. Herre could not provide any information regarding the pump systems failure or operation history and elected to replace the pumps at its own cost in order to be paid a retainage from the Waynesboro School District. 48. Herre's decision to replace the pumps was unilateral and ignored NECO's contention that the pump system and motor as delivered satisfied the technical specifications of the contract. As such, any costs incurred by Herre are of its own doing and should not be paid by NECO. 49. The Plaintiff has failed to state a cause of action upon which relief can be granted. 50. The claims of the Plaintiff are barred by the doctrine of estoppel. 51. The claims of the Plaintiff are barred as Plaintiff has unclean hands. 52. The claims of the Plaintiff are barred by the Doctrine of Merger. 53. The Plaintiff is contributorily negligent which contributory negligence serves as a complete bar to the instant action. 54. In the event Plaintiff prevails in this action, Plaintiff and the Waynesboro School District will be unjustly enriched. WHEREFORE, the Defendant, NECO Systems, Inc., individually, and doing business as NECO Equipment Company, or in the alternative, NECO Systems, Inc., a/k/a NECO Equipment Company, ask this Honorable Court to deny the relief requested by the Plaintiff; that the Plaintiff's Complaint be dismissed; and, that Plaintiff be ordered to pay Defendant's reasonable attorneys' fees for defending this action, plus such other relief as this Court may deem appropriate. Dated: March 29, 2011 cott G. Ho quire -- Attorney for Defendant Berkshire Law Group, LLC Scott G. Hoh, Esquire 645 Penn St., Suite 501 Reading, PA 19601 (610) 374-5841 HERRE BROS., INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA VS. No. 11-2419 NECO SYSTEMS, INC., individually, and : doing business as NECO EQUIPMENT : CIVIL ACTION - LAW COMPANY, or in the alternative, NECO : SYSTEMS, INC., a/k/a NECO EQUIPMENT COMPANY, Defendant. VERIFICATION The undersigned, ALEX KRAMER, states that he is the President of NECO SYSTEMS, INC., Defendant herein, and as such is authorized to make this verification on behalf of the corporation; and, hereby verifies that the facts set forth in the within Defendant's Answer are true and correct. The undersigned understands that false statements herein are made subject to the penalties of 18 P.C.S. Section 4904 relating to unsworn falsification to authorities. Dated: By: Ale Kramer, President Berkshire Law Group, LLC Scott G. Hoh, Esquire 645 Penn St., Suite 501 Reading, PA 19601 (610) 374-5841 HERRE BROS., INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA vs. : No. 11-2419 NECO SYSTEMS, INC., individually, and doing business as NECO EQUIPMENT CIVIL ACTION - LAW COMPANY, or in the alternative, NECO SYSTEMS, INC., a/k/a NECO EQUIPMENT COMPANY, Defendant. CERTIFICATE OF SERVICE I, SCOTT G. HOH, ESQUIRE, attorney for the Defendant in the above-captioned matter, certify that on March 29, 2011, a true and correct copy of the attached Defendant's Answer to Complaint was served upon the following party by first class mail, postage prepaid: Attorney for Plaintiff: Jason A. Copley, Esquire Cohen Seglias Pallas Greenhall & Furman PC 30 South 17'' Street, 19U' Floor Philadelphia, PA 19103 > Date: March, 2011 Scott G. Hoh, squire Attorney for Defendant ONO TARY TR 13 AM 11: 25 PUHIBLRLAND CQU ITY PENNSYLVANIA COHEN SEGLIAS PALLAS GREENHALL & FURMAN, P.C. By: Steven M. Williams, Esquire Jason A. Copley, Esquire Identification Nos: 62051/72774 silliams@cohenseglias.com jcopley@cohenseglias.com 240 North Third Street, 76' Floor Harrisburg, PA 17101 (717) 234-5530 Attorneys for Plaintiff, Herre Bros., Inc. HERRE BROS., INC. Plaintiff V. NECO SYSTEMS, INC, individually, and doing business as NECO EQUIPMENT COMPANY, or in the alternative, NECO SYSTEMS, INC., a/k/a NECO EQUIPMENT COMPANY, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 11-2419 Civil CIVIL ACTION - LAW PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTER AND NOW, comes Plaintiff, Herre Bros., Inc. ("Herre"), by and through its attorneys, Cohen Seglias Pallas Greenhall & Furman, P.C., and files this Reply to Defendants' New Matter, stating the following: 33. Paragraphs 1 through 32 of Herre's Complaint are incorporated herein by reference as if fully set forth. 34. Admitted in part and denied in part. It is specifically denied that the motors supplied by Defendant were the proper motors, and proof is demanded. The balance of this paragraph is admitted. 35. Admitted. By way of further reply, prior to delivering the submittal data to Herre, Defendant hand wrote the word "premium" thereon, designating the proper motors that were to be supplied by Defendant for the Project. 36. Admitted. By way of further reply, the submittal data based upon which Herre issued a purchase order contained the word "premium" that Defendant had handwritten on the submittal data. 37. Admitted in part and denied in part. It is admitted that Defendant invoiced Herre on or about September 21, 2007. After reasonable investigation, Herre is without information or knowledge sufficient to reply to the remainder of this paragraph, the same therefore being specifically denied, and proof is demanded. 38. Admitted in part and denied in part. It is admitted that Defendant delivered the packaged pump system to Waynesboro High School on or about September 27, 2007. It is specifically denied, however, that the motors for the packaged pump system conformed to the Project's specifications or the submittal data provided by Defendant, and proof is demanded. It is admitted that Defendant used its delivery truck to deliver the packaged pump system and that Herre accepted the delivery. By way of further reply, however, Herre did not know, and had no reason to know, at the time of acceptance that the motors in the packaged pump system did not conform to the Project's specifications or Defendant's submittal data. 39. Admitted. 2 40. Admitted in part and denied in part. It is admitted (with clarification) that Attorney Copley sent the referenced letter approximately thirty-two (32) months after the pump start up. The referenced letter is a document that speaks for itself, and Defendant's characterization of the referenced letter is specifically denied to the extent that it is not wholly consistent with the referenced letter, and proof is demanded. It is further admitted that during said period of time the pumps were used by the Waynesboro School District and Defendant was not made aware of any problems or deficiencies, other than a problem with seal leaks. By way of further reply, it was not until after an inspection of the motors by the Project engineer that the Waynesboro School District and Herre learned that the motors supplied by Defendant did not conform to the Project's specifications or the submittal data provided by Defendant. Prior to this inspection, the Waynesboro School District and Herre did not know, and had no reason to know, that the motors in the packaged pump system did not conform to the Project's specifications or Defendant's submittal data 41. Admitted. By way of further reply, no part of Herre's claim in this case involves the referenced seal leaks. 42. Admitted in part and denied in party. It is admitted that the dispute in this case centers around whether or not the pump motors supplied by Defendant were premium efficient motors. Upon information and belief, it is further admitted that the motors supplied by Defendant, provided by the pump manufacturer, PACO Pumps, which utilized a Baldor Electric Company, included motors with a 94.5% efficiency rating. By way of further reply, such motors did not conform to the Project's specifications or Defendant's submittal data. The remainder of this paragraph states conclusions of law to which no reply is required. To the extent that this Court deems a reply is required, the remainder of this paragraph is specifically denied, and proof is demanded. 43. Admitted in part and denied in part. It is admitted that a factor in the definition of a premium efficient motor is the class of electrical insulation. It is further admitted that the motors supplied by Defendant have "B" class insulation. The remainder of this paragraph states conclusions of law to which no reply is required. To the extent that this Court deems a reply is required, the remainder of this paragraph is specifically denied, and proof is demanded. 44. Denied. This paragraph states conclusions of law to which no reply is required. To the extent that this Court deems a reply is required, this paragraph is specifically denied, and proof is demanded. 45. Denied. This paragraph states conclusions of law to which no reply is required. To the extent that this Court deems a reply is required, this paragraph is specifically denied, and proof is demanded. 46. Denied. As to the first paragraph, Herre's Complaint in this case is a document that speaks for itself. Defendant's characterization of Herre's contentions is specifically denied to the extent it is not wholly consistent with Herre's Complaint, and proof is demanded. The remainder of this paragraph states conclusions of law to which no reply is required. To the extent that this Court deems a reply is required, after reasonable investigation, Herre is without knowledge or information sufficient to reply to the remainder of this paragraph, the same therefore being specifically denied, and proof is demanded. 47. Admitted in part and denied in part. It is admitted that the referenced letter was sent. The referenced letter is a document that speaks for itself, and Defendant's characterization 4 of the referenced letter is specifically denied to the extent that it is not wholly consistent with the referenced letter, and proof is demanded. It is admitted that Herre did not provide any information regarding any failures of the Pump System or its operation history. It is specifically denied, however, that such information is relevant in any way to the issues in this case, and proof is demanded. It is admitted that Herre elected to replace the motors in order to be paid a retainage from the Waynesboro School District. The remainder of this paragraph is specifically denied, and proof is demanded. By way of further reply, Herre elected to replace the motors only after Defendant refused to do so, despite demand. 48. Denied. This paragraph states conclusions of law to which no reply is required. To the extent that this Court deems a reply is required, this paragraph is specifically denied, and proof is demanded. 49. Denied. This paragraph states conclusions of law to which no reply is required. To the extent that this Court deems a reply is required, this paragraph is specifically denied, and proof is demanded. 50. Denied. This paragraph states conclusions of law to which no reply is required. To the extent that this Court deems a reply is required, this paragraph is specifically denied, and proof is demanded. 51. Denied. This paragraph states conclusions of law to which no reply is required. To the extent that this Court deems a reply is required, this paragraph is specifically denied, and proof is demanded. 52. Denied. This paragraph states conclusions of law to which no reply is required. To the extent that this Court deems a reply is required, this paragraph is specifically denied, and proof is demanded. 53. Denied. This paragraph states conclusions of law to which no reply is required. To the extent that this Court deems a reply is required, this paragraph is specifically denied, and proof is demanded. 54. Denied. This paragraph states conclusions of law to which no reply is required. To the extent that this Court deems a reply is required, this paragraph is specifically denied, and proof is demanded. WHEREFORE, Plaintiff, Herre Bros., Inc., respectfully requests that this Honorable Court enter judgment in its favor and against Defendant, NECO Systems, Inc., individually, and doing business as NECO Equipment Company, or in the alternative, against NECO Systems, Inc., a/k/a NECO Equipment Company and award damages as proven by Herre Bros., Inc. in this case, costs, and such other relief as this Court deems just and appropriate. 6 Date: L-1 I> > I Respectfully submitted, COHEN SEGLL?KVALLAS GREENHALL & FURMAN By: Steven A Williams, PA I.D. # 62051 swilliams@cohenseglias.com Jason A. Copley, PA I.D. # 72774 jcopley@cohenseglias.com 240 North Third Street, 7`h Floor Harrisburg, PA 17101 (717) 234-5530 Attorneys for Plaintiff, Herre Bros., Inc. 7 VERIFICATION h 1_?l?rc? f?? ?1- ,r?n?P have read the foregoing Reply and hereby affirm and verify that it is true and correct to the best of my knowledge, information and belief. I verify that all of the statements made in the foregoing Reply are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. - Date:,, af, ` l 7? ?oH CERTIFICATE OF SERVICE I hereby certify that the foregoing Reply was sent first class mail this day to the following: Scott G. Hoh, Esquire 645 Penn Street, Suite 501 Reading, PA 19601 Attorney for Defendant Date: 4111 //( Respectfully submitted, Cohen Seglias Pallas Greenhall & Furman, P.C. By: 6 6 ? Alison A. Zortman, Le Assistant 240 North Third Street, Floor Harrisburg, PA 17101 (717) 234-5530 Attorneys for Plaintiff, Herre Bros., Inc. N 1249048-v 106334-0044 David Buell' Prothonotary Office of the (Prothonotary Cum5erfancf County, (Pennsylvania /Fag'? ORDER OF TERMINATION OF COURT CASES rkS. Sohonage, fSQ SoCicitor CIVIL TERM AND NOW THIS 28TH DAY OF OCTOBER, 2014, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE —THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square ® Suite100 ® CarCisCe, TA 0 (Phone 717 240-6195 0 q 717 240-6573