# Appendix — Curtiss-Wright Corp. v. General Elec. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0596%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 446 U.S. 1 ## Text Gupreme Court, U, FILED APPENDIX NOV 15 i979 L_MICHABL RODAK, JR. CLERK In The Onur .. Supreme Court of the United Dtates OCTOBER TERM, 1979 No. 79-105 CURTISS-WRIGHT CORPORATION, Petitioner, vs . GENERAL ELECTRIC COMPANY, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT PETITION FOR CERTIORARI FILED JULY 23, 1979 CERTIORARI GRANTED OCTOBER 1, 1979 - ‘Sap Pa eee Page Chronological List of Relevant Docket Entries ............ la Complaint and Demand for Jury Trial, Filed April 30, 1976 o: 6 sh fm v6: ote lim 0 5rd 6a Answer and Counterclaim, Filed August 25, 1976.......... 42a Reply to Counterclaim, Filed October 15, 1976 ............ 7la Amendment to and Supplemental Complaint, Filed Nov- emtuer 15, IFT) wun cccasccccacsnseteesenuuvns tae suan 78a Answer to Amendment to and Supplemental Complaint and Counterclaim, Filed December 8, 1976 ........... 8la Additional Reply to Counterclaim, Filed December 27, 1976 POTTUTTTTETTT TTT Ee ee ee ee 86a Affidavit of James H. Sullivan, Filed May 3, 1977, With CEPT rT reer ry rie Te 88a Affidavit of F. J. Balicki, Filed May 31, 1977 With At- ce MPT ee 144a Affidavit of J.A. Russell, Filed May 31, 1977 ...........4.. 157a Statement of Material Facts as to Which There Is No GRIND ONE 0 cn a piriad oka vk ccheuaeebinsaneenonen 160a . Opinion on Parties’ Motions for Summary Judgment on the Amendment to and Supplemental Complaint, Filed <=, TABLE OF CONTENTS Oy rr er a ep rer om 164a Ti Contents Page Order Denying Plaintiffs Motions to Strike Defendant's Seventeenth Defense and to Dismiss Defendant’s Count- erclaim, Filed February 24, 1978 .........eeeeeeeeeee 173a Order Granting Plaintiffs Motion for Summary Judgment on the Amendment to and Supplemental Complaint, Granting Plaintiffs Motion to Strike Defendant’s Eighteenth and Nineteenth Defenses, Denying Defend- ant’s Motion for Summary Judgment on the Amendment to and Supplemental Complaint, and Deferring For Later Consideration the Question of Prejudgment In- terest, Filed February 24, 1978 ...........cceeeeevees 175a Letter Opinion on Plaintiffs Request for Rule 54(b) Cer- tification, Filed February 24, 1978 ...........00eeeeee 178a Opinion on Plaintiffs Motion for an Award of Prejudgment Interest, Filed June 20, 1978 .......ccccccccscsccvece 180a Fourth Supplemental Affidavit of James H. Sullivan, Filed July 21, 1978 With Attachments .............eeeeeeee 188a Order Granting Plaintiffs Motion for an Award of Prejudg- ment Interest on the Amendment to and Supplemental Complaint, Filed July 27, 1978 ........e cece ee eeeees 194a Letter Opinion Directing that Final Judgment Be Entered Under Rule 54(b) on the Court’s Prior Orders Awarding Plaintiff Summary Judgment With Prejudgment Interest On the Amendment to and Supplemental Complaint, Filed July 27, 1978 ...cccccdecscccccscvcvetoeveccchs 196a Order of Final Judgment, Entered July 28, 1978 ........... 200a Notice of Appeal From Order of Final Judgment Entered Selly FB, ISTE occ cccvccceccesevscssevennwaesesesces 201a iii Contents Page Order Granting Defendant’s Application for Stay of Judg- memt, Fred Augest 3, 197TG oan ccccsccccsccccccvece 203a Supplemental Affidavit of E.A. Klein, Filed August 22, FEE Vis cow pa ehacl eset re bee Kas pe CE eR inae Cees .....204a Order Granting Plaintiffs Motion for Summary Judgment With Prejudgment Interest on the Additional Supple- mental Complaint, and Denying Defendant’s Motion for Summary Judgment on the Additional Supplemental Complaint, Filed August 29, 1978 ............eeeeeee 210a Order of Final Judgment Entered August 31, 1978 ......... 214a Notice of Appeal From Order of Final Judgment En- I Fe Ey FOE here ee ASAE eee ewend eae succes 216a Opinion of the Third Circuit Court of Appeals, Filed April 1. Sree erry > Pee rae er rane Pek re Pe 218a Appellant’s Motion to Amend the Opinion of the Third Cir- cuit Court of Appeals, Filed May I, 1979 ......... eee Response of Appellee, Curtiss-Wright Corporation, to Ap- pellant’s Motion to Amend the Opinion, Filed May 10, i Oe Oe See Pe Eee Pee nO ree ree 238a Order of the Third Circuit Court of Appeals Amending Opinion, Dated May 11, 1979 ........... 0. cee eee eee 243a Order of Third Circuit Court.of Appeals Amending Dissent- ing Opinion, Dated May 21, 1979 ......... cc eee wees 244a iv Contents Page Order of the Third Circuit Court of Appeals Denying the Petition for Rehearing, Dated June 4, 1979 ........... 246a Dissenting Opinion Sur Denial of Petition for Rehearing, Ne NN iy MO bi Sere nd kee ecadadpudumban scents 248a Judgment of the Third Circuit Court of Appeals Issue in Lieu of a Formal Mandate on June 12, 1979 .......... 262a General Electric’s Answers to Curtiss-Wright’s Interroga- NN I iiakc ck cea RCo cctv eeinenensans 264a CHRONOLOGICAL ' LIST OF «RELEVANT DOCKET ENTRIES Date_ Proceedings 5-4-76 Complaint, filed April 30, 1976 8-27-76 Answer and Counterclaim, filed August 25, 1976. 10-19-76 Reply to Counterclaim, filed October 15, 1976. 11-29-76 Amendment To And Supplemental Complaint, filed November 18, 1976. 12-9-76 Answer to Amendment To And Supplemental Complaint; and Counterclaim, filed December 8, 1976. 12-28-76 Additional Reply to Counterclaim, filed December 27, 1976. 5-5-77 Notice of Motions of Plaintiff for Summary Judgment on the Amendment To And Supplemental Complaint and to strike Defendant’s Seventeenth, Eighteenth, and Nineteenth Defenses to the Amendment To And Supplemental Complaint and to dismiss Defendant’s Counterclaim, filed May 3, 1977. Affidavit of James H. Sullivan, filed May 3, 1977. 6-1-77 Notice of Motion of Defendant for Summary Judgment on the Amendment To And Supplemental Complaint, filed May 31, 1977. Affidavit of F.J. Balicki, filed May 31, 1977. 9-28-77 12-6-77 1-16-78 2-28-78 2a Revelant Docket Entries Affidavit of J.A. Russell, filed May 31, 1977. Statement of Material Facts As To Which There Is No Genuine Issue, filed May 31, 1977. Hearing on parties’ Motions for Summary Judgment on the Amendment To And Supplemental Complaint and on Plaintiff's Motions to strike Defendant’s Seventeenth, Eighteenth, and Nineteenth Defenses to the Amendment To And Supplemental Complaint and to dismiss Defendant’s Counterclaim (September 26, 1977). Opinion on parties’ Motions for Summary Judgment on the Amendment To And Supplemental Complaint, filed December 5, 1977. Notice of Motion of Plaintiff to Settle the Judgment and Order on the parties’ Motions for Summary Judgment on the Amendment To And Supplemental Complaint and Plaintiff's Motions to strike Defendant’s Seventeenth, Eighteenth, and Nineteenth Defenses and to _ dismiss Defendant’s Counterclaim, filed January 12, 1978. Order denying Plaintiff's Motions to strike the Seventeenth Defense and to dismiss Defendant’s Counterclaim, filed February 24, 1978. Order granting Plaintiffs Motion for Summary Judgment on the Amendment To And Supplemental Complaint; granting Plaintiffs Motion to strike the Eighteenth and Nineteenth Defenses; denying Defendant’s Motion for iz 1s 3-22-78 6-1-78 6-22-78 7-24-78 7-28-78 3a Revelant Docket Entries Summary Judgment on the Amendment To And Supplemental Complaint; and deferring for later consideration the question of prejudgment interest, filed February 24, 1978. Letter Opinion on Plaintiffs request for Rule 54(b) certification of Court’s ruling of December 5, 1977, filed February 24, 1978. Notice of Motion of Plaintiff for an Award of Prejudgment Interest on the Amendment To And Supplemental Complaint, filed March 21, 1978. Hearing on Plaintiffs Motion for an Award of Prejudgment Interest (May 30, 1978). Opinion on Plaintiffs Motion for an Award of Prejudgment Interest, filed June 20, 1978. Notice of Motion of Plaintiff for Summary Judgment with Prejudgment Interest on Plaintiffs Additional Supplemental Complaint, filed July 21, 1978. Fourth Supplemental Affidavit of James H. Sullivan, filed July 21, 1978. Order granting Plaintiffs Motion for an Award of Prejudgment Interest on the Amendment To And Supplemental Complaint, filed July 27, 1978. Letter Opinion directing that final judgment be entered under Rule 54(b) on the Court’s prior Orders awarding Plaintiff summary judgment 8-4-78 8-23-78 8-30-78 8-31-78 9-18-78 3-22-79 4-17-79 4-30-79 4a Revelant Docket Entries with prejudgment interest on the Amendment To And Supplemental Complaint, filed July 27, 1978. Order of final judgment, filed July 27, 1978. Notice of Appeal, filed August 3, 1978. Order granting Defendant’s Application for Stay of Judgment, filed August 3, 1978. Supplemental Affidavit of E.A. Klein, filed August 22, 1978. Additional Supplemental Complaint, filed August 28, 1978. Order granting Plaintiffs Motion for Summary Judgment with prejudgment interest on Plaintiffs Additional Supplemental Complaint and denying Defendant’s Motion for Summary Judgment, filed August 29, 1978. Order of final judgment, filed August 29, 1978. Notice of Appeal, filed September 14, 1978. Argument before the Third Circuit Court of Appeals held. Opinion and Judgment of the Third Circuit Court of Appeals filed. Petition by Appellee, Curtiss-Wright Corporation, for rehearing en banc filed. 5-1-79 5-10-79 5-11-79 5-21-79 6-4-79 6-12-79 Sa Relevant Docket Entries Appellant’s Motion to Amend the Opinion of the Third Circuit Court of Appeals filed. Response of Appellee, Curtiss-Wright Corporation, to Appellant’s Motion to Amend the Opinion filed. Order of the Third Circuit Court of Appeals Amending Opinion filed. Order of the Third Circuit Court of Appeals Amending Dissenting Opinion filed. Order of the Third Circuit Court of Appeals Denying The Petition for Rehearing filed. Dissenting Opinion Sur Denial of Petition for Rehearing filed. Judgment of the Third Circuit Court of Appeals Issued in Lieu of a Formal Mandate filed. 6a COMPLAINT AND DEMAND FOR JURY TRIAL, FILED APRIL 30, 1976 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Civil Action No. 76-794 CURTISS-WRIGHT CORPORATION, Plaintiff, VS. GENERAL ELECTRIC COMPANY, Defendant. AS TO ALL COUNTS JURISDICTION AND VENUE 1. This action is within the jurisdiction of this Court by virtue of Title 28, United States Code, Sections 1332 and 1391. 2. Plaintiff is a corporation incorporated under the laws of the State of Delaware, and has its principal place of business in the Borough of Wood-Ridge, County of Bergen and State of New Jersey, where it is engaged in the business, among others, of manufacturing and selling large metal components for use in the construction of nuclear propulsion plants for U.S. Navy submarines and surface ships. 3. Defendant is a corporation incorporated in the State of New York, and has its principal places of business in states other than Delaware and New Jersey. 7a Complaint and Demand for Jury Trial 4. Defendant is engaged in the business, among others, of purchasing nuclear propulsion plant components on behalf of or for resale to the United States Navy. 5. Defendant maintains one or more offices in New Jersey. 6. Defendant is subject to the jurisdiction of this Court. 7. The subject matter of this action exceeds Ten Thousand ($10,000.00) Doilars, exclusive of interest and costs, and is between citizens of different states. FIRST COUNT 8. In or about late 1967 and early 1968, preliminary discussions and negotiations were held between plaintiff, defendant (acting through its Machinery Apparatus Operation, Schenectady, New York), and the U.S. Navy Department to explore the possibility of plaintiff's becoming a supplier of large components used in the construction of nuclear propulsion plants for submarines and surface ships of the United States Navy. 9. Defendant then occupied and continues to occupy to the present time a program and/or:contract management role with respect to the award of contracts to private industry for the ultimate procurement by the Navy of these components. 10. During the course of the discussions and negotiations aforesaid, and thereafter, defendant represented to plaintiff that it urgently needed to develop a new source of supply for the components aforesaid by reason of the fact that the existing sources, which possessed the capability and experience for the work, were either abandoning the business or were many months and even years delinquent in performance. 8a Complaint and Demand for Jury Trial 11. Although plaintiff had engaged in the business of manufacturing aircraft engines and missile cases, and possessed manufacturing experience of the kind derived from those businesses, plaintiff had no experience in the manufacture of the said nuclear components. 12. Defendant knew the extent of plaintiffs previous manufacturing experience and capabilities and further knew that plaintiff had no prior experience in the manufacture of said nuclear components. 13. With the knowledge aforesaid, defendant proceeded to induce plaintiff to enter into the business of becoming a supplier of the said components and in furtherance of said inducement, defendant stated to plaintiff that it had searched the length and breadth of the United States and had screened and studied the capabilities of many companies in an effort to find a supplier that was capable of manufacturing the components. Defendant assured plaintiff that defendant knew exactly the kind of capability it was looking for and that plaintiff could do the job with the help of defendant’s knowledge, expertise and management competence, inviting and receiving plaintiffs trust and confidence to that effect. 14. On various occasions beginning early in 1968 and continuing thereafter from time to time through 1972, in meetings and conversations held at Wood-Ridge, New Jersey, and elsewhere, defendant, acting through its duly authorized agents, including the General Manager of its Machinery Apparatus Operation, induced plaintiff to enter into the business of manufacturing nuclear components and into a series of twenty-one contracts relating to same. 15. Said contracts were designated as Purchase Order Nos. A-550, A-595, A-641, A-642, A-656, A-661, B-382, B-423, B-428, Am 9a Complaint and Demand for Jury Trial B-412, B-433, B-442, B-384, B-425, B-429, B-410, A-675, A-113, B-451, B-452 and B-478, and pursuant to same plaintiff agreed to manufacture, assemble, inspect, test, sell and deliver to defendant a total of 167 units in the aggregate of ten (10) different types of nuclear components for the aggregate sum of Two Hundred Fourteen Million Six Hundred Thousand ($214,600,000.00) Dollars, which defendant agreed to pay to plaintiff. 16. Defendant induced plaintiff to enter into said business and said contracts by making the following representations of fact to plaintiff: (a) Defendant represented to plaintiff that plaintiffs entry into the business of manufacturing nuclear components was necessary in the interests of the national defense; that defendant intended to divide the orders for the bulk of the annual requirements for said components between plaintiff and the only then- remaining major source of supply; and that plaintiff would receive repetitive orders building up by 1974 to 8 reactor vessels, 8 reactor vessel closure heads, 8 pressurizers, and 22 steam generators per year. (b) Defendant represented to plaintiff that, relative to any company then or formerly in the business, defendant and the Navy possessed superior knowledge, expertise, and management competence, in the manner, methods, processes and procedures of manufacturing the said nuclear components, which knowledge, expertise, and management competence equipped defendant to show plaintiff how to manufacture the components in accordance with the requirements of the contracts. Defendant further represented that it would make such knowledge, expertise, and competence available to plaintiff. 10a Complaint and Demand for Jury Trial (c) Defendant represented to plaintiff that by virtue of defendant’s superior knowledge, expertise and competence (1) defendant knew that the delivery schedules defendant was providing in_ the aforementioned contracts were adequate to cover the time that would reasonably be required by an inexperienced company such as plaintiff to produce the components; (2) defendant knew that the contract prices were more than adequate to cover plaintiff's costs of performance plus a reasonable profit, and; (3) consequently, defendant knew that plaintiff would be in a position of returning excessive profits to defendant under the incentive price revision formula in the contracts. 17. Each and every one of the foregoing representations so made by the defendant was false and fraudulent and/or was made by defendant as part of a scheme or artifice to defraud. 18. The said representations were known by the defendant to be false when made and were made with intent to deceive plaintiff and with the intent that plaintiff rely upon them and to induce plaintiff to become a supplier of said nuclear components, to enter into the aforesaid 21 contracts at the prices and with the delivery schedules therein established, to make large capital expenditures for the construction of a separate factory and special purpose facilities, to divert to the business of manufacturing said nuclear components its most skilled technical and management personnel from other segments of its business and agree not to make changes in such personnel assignments without defendant’s approval and to devote extraordinary amounts of management and technical time and attention to the business of producing said nuclear components. Complaint and Demand for Jury Trial 19. The aforesaid representations were material and at the time they were made, plaintiff believed them and did not know the truth and in reliance thereon plaintiff was induced to become a supplier of said nuclear components, to enter into the aforesaid 21 contracts at the prices and with the delivery schedules therein established and thereby to incur huge losses in the performance thereof, to make large capital expenditures for the construction of a separate factory and special purpose facilities and to incur losses on account of the lack of use thereof, and to injure other segments of its business by diverting its most skilled technical and management personnel from such other segments and devoting extraordinary amounts of management and technical time and attention to the business of producing said nuclear components, which losses, expenses and injuries were the proximate result of the aforesaid representations. 20. In reliance upon the aforesaid representations, plaintiff did take the aforementioned actions to its detriment. 21. By reason of the foregoing, defendant is liable to plaintiff for damages, both compensatory and punitive. WHEREFORE, plaintiff demands judgment on this Count against the defendant as follows: A. For compensatory damages, general and special; B. For punitive damages; C. For interest; D. For costs of suit; E. For attorneys fees. 12a Complaint and Demand for Jury Trial SECOND COUNT 22. Plaintiff repeats and realleges all of the allegations contained in Paragraphs | through 21, inclusive, as if set forth at length herein. 23. Defendant, through its agents and employees, conspired with Vice Admiral Hyman G. Rickover of the U. S. Navy in a malicious and willful scheme to create a relationship of trust and confidence between defendant and plaintiff and te deceive plaintiff and deprive plaintiff of its proper costs and profits on the said 21 contracts. 24. The acts and omissions alleged in the First Count were in pursuit of the said conspiracy and scheme. 25. As a result of the foregoing, plaintiff has suffered damages for which defendant is liable to plaintiff. WHEREFORE, “plaintiff demands judgment against defendant as follows: A. For compensatory damages, general and special; B. For punitive damages; C. For interest; D. For costs of suit; E. For attorneys fees. a] 13a Complaint and Demand for Jury Trial ' THIRD COUNT 26. Plaintiff repeats and realleges all of the allegations contained in Paragraphs | through 16, inclusive, as if set forth at length herein. 27. The foregoing representations so made by defendant were false or erroneous. 28. The said representations were made by the defendant with intent that plaintiff rely upon them, and to induce plaintiff to become a supplier of said nuclear components, to-enter into the aforesaid 21 contracts at the prices and with the delivery schedules therein established, to make large capital expenditures for the construction of a separate factory and special purpose facilities, to divert to the business of manufacturing said nuclear components its most skilled technical and management personnel from other segments of its business and agree not to make changes in such personnel assignments without defendant’s approval, and to devote extraordinary amounts of management and technical time and attention to the business of producing said nuclear components. 29. Plaintiff repeats and realleges all of the allegations contained in Paragraphs 19 and 20, as if set forth at length herein. 30. As a result of the foregoing, plaintiff has suffered great losses, defendant has been and will be unjustly enriched, and plaintiff has no adequate remedy at law. WHEREFORE, plaintiff demands judgment against defendant as follows: l4a Complaint and Demand for Jury Trial That the contracts be reformed; (1) To cover the training, learning, development, practice, quality assurance, rework and other costs of performance incurred or to be incurred by the plaintiff in the first-time manufacture of these nuclear components; (2) To provide delivery schedules adequate to cover such first-time manufacture of the components by plaintiff; (3) To provide that plaintiff will earn reasonable profit from such manufacture of the components; That upon the contracts being so reformed, for an accounting, and for the payments due under the contracts as reformed; | For such other sums as defendant may be found, on accounting, to be liable to plaintiff as compensation for plaintiff's diversion from its established lines of business of the capital and other resources necessary to enter the business of manufacturing the components; For such damages as plaintiff has sustained or may sustain as a result of any refusal or failure of defendant to recognize and assume obligations coincident with its obligations as reformed; For the specific performance by the defendant of its obligations under said reformed contracts in the future; #R 1Sa Complaint and Demand for Jury Trial F. Or, in the alternative, for compensation in the amount of the reasonable and just value of plaintiff's performance and investment in the business of manufacturing nuclear components; G. For such further and other reliet as plaintiff may be entitled to. FOURTH COUNT 31. Plaintiff repeats and realleges all of the allegations contained in Paragraphs | through 16, inclusive, as if set forth at length herein. 32. Under the aforementioned circumstances and relationship existing between the plaintiff and defendant, plaintiff had a right to rely upon the representations and information given to it by defendant. 33. Defendant owed a duty to plaintiff, if it gave representations or information at all, to do so with due care. 34. Defendant knew said representations and information were desired by plaintiff for the purpose of deciding whether to enter the nuclear components business, that plaintiff intended to rely thereon, and that if said representations and information were false or erroneous, plaintiff would suffer great losses, expenses and injuries. 35. Said representations and information were false or erroneous and negligently made by defendant. 36. The aforesaid representations and information were material and at the time they were made plaintiff believed them 16a Complaint and Demand for Jury Trial and in reliance thereon entered into the business of becoming a supplier of said nuclear components, entered into the aforesaid 21 contracts at the prices and with the delivery schedules therein established and incurred huge losses in the performance thereof, made large capital expenditures for the construction of a separate factory and special purpose facilities and incurred losses on account of the lack of use thereof, and injured other segments of its business by diverting its most skilled technical and management personnel from such other segments and expending extraordinary amounts of management and technical time and attention to the business of producing said nuclear components, which losses, expenses and injuries were the proximate result of defendant making and providing the aforesaid representations and information. 37. As a result of the foregoing, plaintiff has suffered damages for which defendant is liable to plaintiff. WHEREFORE, plaintiff demands judgment against defendant as follows: A. For compensatory damages, general and special; B. For interest and costs of suit; C. For attorneys fees. FIFTH COUNT 38. Plaintiff repeats and realleges all of the allegations contained in Paragraphs | through 16, inclusive, as if set forth at length herein. 39. Under all of the circumstances aforesaid, a special relationship of trust and confidence was established between plaintiff and defendant. ae 17a ' Complaint and Demand for Jury Trial 40. The foregoing representations made by defendant were false or erroneous. 41. The said misrepresentations made by defendant within the context of the special relationship of trust and confidence developed between plaintiff and defendant, whether purposeful, negligent, or the result of a disregard for the truth of the representations by defendant, induced plaintiff to enter into the said business of becoming a supplier of nuclear components and the said 21 contracts to plaintiffs great damage. 42. In light of all of the foregoing, entry into the business and the said 21 contracts were the result of overreaching by defendants. 43. Defendant’s actions in causing plaintiff to enter into said business and the said 21 contracts and the results therein obtaining as to plaintiff are unconscionable. 44. As a result of the foregoing, plaintiff has suffered damages but has no adequate remedy at law. WHEREFORE, plaintiff demands judgment against defendant as follows: A. That the contracts be reformed; (1) To cover the training, learning, development, practice, quality assurance, rework and other costs of performance incurred or to be incurred by the plaintiff in the first-time manufacture of these nuclear components; 184 Complaint and Demand for Jury Trial (2) To provide delivery schedules adequate to cover such first-time manufacture of the components by plaintiff; (3) To provide that plaintiff will earn reasonable profit from such manufacture of the components; That upon the contracts being so reformed, for an accounting, and for the payments due under the contracts as reformed; For such other sums as defendant may be found, on accounting, to be liable to plaintiff as compensation for plaintiff's diversion from its established lines of business of the capital and other resources necessary to enter the business of manufacturing the components; For such damages as plaintiff has sustained or may sustain as a result of any refusal or failure of defendant to recognize and assume obligations coincident with its obligations as reformed; For the specific performance by the defendant of its obligations under said reformed contracts in the future; Or, in the alternative, for compensation in the amount of the reasonable and just value of plaintiff's performance and investment in the business of manufacturing nuclear components; For such further and other relief as plaintiff may be entitled to. 19a Complaint and Demand for Jury Trial SIXTH COUNT 45. Plaintiff repeats and realleges all of the allegations contained in Paragraphs | through 15, inclusive, as if set forth at length herein. 46. In the early part of 1968 defendant represented to plaintiff that defendant and the Navy possessed superior knowledge, expertise and management competence in the manner, methods, processes and procedures of manufacturing said nuclear components relative to any company then or formerly in the business. 47. Defendant agreed to provide this knowledge, expertise and competence to plaintiff and show it how to become engaged in the business of manufacture and sale of said components in accordance with the price and delivery schedule terms under which defendant was willing to contract to buy said components; defendant also agreed to divide the orders for the bulk of the annual requirements for said components between plaintiff and the only then-remaining major source of supply; defendant further agreed to place repetitive orders with plaintiff for said components, building up by 1974 to 8 reactor vessels, 8 reactor vessel closure heads, 8 pressurizers and 22 steam generators per year, if plaintiff would become engaged in said business. 48. Defendant knew or should have known that plaintiff entered into the business of manufacturing said components for sale to defendant in reliance on defendant’s agreement aforesaid. 49. In reliance on said agreement, plaintiff entered into a series of twenty-one contracts in writing with defendant, designates as Purchase Order Nos. A-550, A-595, A-641,:A-661, A-642, A-656, B-382, B-423, B-428, B-412, B-433, B-442, B-384, B-425, B-429, B-410, A-675, A-113, B-451, B-452, and B-478, as aforesaid. 20a Complaint and Demand for Jury Trial 50. In further reliance on said agreement, plaintiff made large capital expenditures for the construction of a separate factory building and for special purpose facilities with which to carry on said business, diverted to said business its most skilled technical and management personnel from other segments of its business and agreed not to make changes in such personnel assignments without defendant’s approval, and devoted extraordinary amounts of management and technical time and attention to the business of producing said nuclear components. 51. Before commencing the manufacture of said components plaintiff disclosed to defendant the manner, methods, processes and procedures which plaintiff considered appropriate for their manufacture and sought the knowledge, expertise and competence of defendant in the necessary and proper manner, methods, processes and procedures for said manufacture in accordance with the requirements of the aforementioned contracts. 52. Defendant failed to provide plaintiff with the necessary and proper knowledge, expertise and competence to show it how to manufacture said components as required by the contracts aforesaid. 53. As a proximate result of the foregoing, plaintiff encountered extreme and unusual difficulty and expense and incurred huge losses in the performance of said contracts, made large capital expenditures for the construction of a separate factory and special purpose facilities and incurred losses on account of the lack of use thereof, injured other segments of its business by diverting its most skilled technical and management personnel from such segments and devoting extraordinary amounts of management and technical time and attention to the business of producing said nuclear components, and was otherwise damaged. 2la Complaint and Demand for Jury Trial WHEREFORE, plaintiff demands judgment against defendant as follows: A. For compensatory damages, general and special; B. For interest and costs of suit; C. For attorneys fees. SEVENTH COUNT 54. Plaintiff repeats and realleges the allegations contained in paragraphs 45 through 47 as if set forth at length herein. 55. Defendant also represented and agreed that the prices of said contracts were adequate to cover plaintiff's costs of performance, with the knowledge, expertise and competence to be provided by defendant, and to provide a reasonable profit to plaintiff, and that the incentive pricing formula’ was incorporated into said contracts merely to permit recovery by the defendant for the benefit of the Navy of any underruns in plaintiffs costs of performance of said contracts. 56. Defendant further represented and agreed that defendant’s and hence the Navy’s need for plaintiff as a new supplier of said nuclear components was not a temporary need arising from the buildup at that time of requirements for said nuclear components but was then foreseeably a need for a new supplier on a continuing basis. 57. Said representations and agreements, in light of all of the circumstances, incorporated and gave rise to an implied covenant of good faith and fair dealing to the effect that plaintiff would recover its costs of performance and realize a reasonable profit while it was learning the business of manufacturing said 22a Complaint and Demand for Jury Trial nuclear components, and that plaintiff would continue to receive contracts for said nuclear components once it learned the business, provided defendant continued to have requirements for said nuclear components. 58. Plaintiff relied on said covenants and agreements and in consideration thereof agreed to become a supplier of said nuclear components, to enter into the aforesaid 21 contracts at the prices and with the delivery schedules therein established, to make large capital expenditures for the construction of a separate factory and special purpose facilities therefor and to divert skilled technical and management personnel from other segments of its business to the business of producing said nuclear components. 59. In learning how to produce said nuclear components with the benefit of such knowledge, expertise and competence as was supplied by defendant to plaintiff in performing said 21 contracts, plaintiff incurred costs of performance far in excess of the contract prices and was deprived of the reasonable profits expected to be realized from performance of said contracts. 60. Plaintiff has requested defendant to reimburse it for said excess costs of performance and to pay it the reasonable profits expected to be realized through performance, and defendant has breached said covenants and agreements by refusing said request. 4 61. Since plaintiff has learned how to produce said nuélear components, defendant and said Admiral Rickover have conspired to deprive plaintiff of any additional contracts for the production of said nuclear components, despite the existence of requirements therefor, in order to coerce plaintiff into not enforcing the aforesaid covenant of reimbursement of the costs of performance of said 21 contracts and payment of the om 23a Complaint and Demand for Jury Trial reasonable expected profit to be realized by plaintiff through performance of said contracts. Said conspiracy and defendant's refusal to continue to award contracts to plaintiff for the production of said nuclear components constitutes a breach of the aforesaid covenants and agreements. WHEREFORE, plaintiff demands judgment against defendant as follows: A. For compensatory damages, general and special; B. For interest and costs of suit; C. For attorneys fees. EIGHTH COUNT 62. Plaintiff repeats and realleges all of the allegations contained in Paragraphs | through 16, inclusive, as if set forth at length herein. 63. During the period 1968 through 1972, defendant awarded plaintiff a series of twenty-one contracts in writing designated as Purchase Order Nos. A-550, A-595, A-641, A-661, A-642, A-656, B-382, B-423, B-428, B-412, B-433, B-442, B-384, B-425, B-429, B-410, A-675, A-113, B-451, B-452, and B-478, as aforesaid. 63. Said contracts specified not only the physical characteristics of the components to be manufactured by plaintiff, but also the qualifications of the welders, weld operators, welding procedures, welding equipment, nondestructive test and inspection personnel, nondestructive test procedures and nondestructive test equipment used to produce them. 24a Complaint and Demand for Jury Trial 64. Defendant warranted that plaintiff, despite plaintiff's lack of prior experience in their manufacture, could produce components of specified physical characteristics by employing personnel, procedures and equipment so qualified. 65. Plaintiff believed the warranty to be true and in reliance thereon proceeded to perform said contracts with personnel, procedures and equipment so qualified. 66. Defendant breached said warranty in that plaintiff's personnel, procedures and equipment, qualified to the specifications aforesaid, were not able to produce components meeting the specified physical characteristics, but produced components which failed to meet the specified physical characteristics and required vast amounts of rework to salvage. 67. Plaintiffs personnel, qualified as aforesaid, had to undergo extensive additional training and learning before they were able to produce components meeting the specified physical characteristics. 68. Plaintiff gave defendant notice of its inability to produce components meeting the _ specified physical characteristics with personnel, procedures and equipment qualified to said specifications. 69. Defendant failed and refused to make good on its warranty aforesaid. 70. By reason of said breach of warranty, plaintiff had been damaged. WHEREFORE, plaintiff demands judgment against defendant as follows: De) 25a Complaint and Demand for Jury Trial A. For compensatory damages, general and special; B. For interest and costs of suit, C. For attorneys fees. NINTH COUNT 71. Plaintiff repeats and realleges all of the allegations contained in paragraphs | through 16, inclusive, as if set forth at length herein. 72. Through mutual mistake of the parties, said contracts did not make adequate provision either in the price or the delivery schedule for the training, learning and practice, the stringency of the quality requirements as interpreted by defendant, the consequent high incidence of rework, or the other extreme difficulty and unusual expense, as well as the normal costs of performance, required on the part of a company such as plaintiff having no prior experience in the business to perform the inherently complex welding and other fabricating and testing operations in order to produce the ten (10) types of components in accordance with the requirements of the contracts. 73. Without prior experience in the unique complexities of nuclear component manufacture, and, at defendant’s urging, relying on defendant for guidance, plaintiff did not know of the inherent difficulty of the work and that literally years of first- hand experience and practice are required to perform it successfully. 74. Plaintiffs mistake consisted in the belief that its aerospace manufacturing capability equipped it to perform the contracts and earn a reasonable profit at the prices and delivery schedules fixed therein by defendant, with little or no change in 26a Complaint and Demand for Jury Trial or addition to that capability, and without having to carry on extensive amounts of training, learning and practice, or encountering the stringent interpretations by defendant of the quality requirements, the consequent high incidence of rework or the other extreme difficulty and unusual expense that it experienced in performing the contracts. 75. Defendant likewise mistakenly believed that plaintiff possessed the kind of capability required to produce the nuclear components in accordance with the terms of the aforesaid contracts without having to carry on extensive amounts of training learning, practice, rework and encountering the other extreme difficulty and unusual expense experienced by the plaintiff as well as the previous companies engaged in their production. 76. It was the intent of the plaintiff and the defendant that plaintiff should be able to perform the aforesaid contracts and, as a result thereof, earn a reasonable profit. 77. In fact, plaintiff has suffered great losses and damages as a result of its performance of the contracts, as aforesaid, and, in light of the price and delivery schedule set by defendant, plaintiff has been frustrated with respect to the mutual intent of both parties that it earn a reasonable profit from the performance of said contracts. 78. Plaintiff requested defendant to increase the price of said contracts to cover the cost of the extensive amounts of training, learning, practice, rework and other extreme difficulty and unusual expense incurred by plaintiff to perform the inherently complex welding and other fabrication and testing operations to produce the components to the exacting, fail-safe quality requirements imposed by defendant, and defendant has refused to do so. 27a Complaint and Demand for Jury Trial 79. Plaintiff has no adequate remedy at law. WHEREFORE, plaintiff demands judgment against defendant as follows: A. That the contracts be reformed; (1) To cover the training, learning, development, practice, quality assurance, rework and other costs of performance incurred or to be incurred by the plaintiff in the first-time manufacture of these nuclear components; (2) To provide delivery schedules adequate to cover such first-time manufacture of the components by plaintiff; (3) To provide that plaintiff will earn reasonable profit from such manufacture of the components; B. That upon the contracts being so reformed, for an accounting, and for the payments due under the contracts as reformed; C. For such other sums as defendant may be found, on accounting, to be liable to plaintiff as compensation for plaintiffs diversion from its established lines of business of the capital and other resources necessary to enter the business of manufacturing the components; D. For such damages as plaintiff has sustained or may sustain as a result of any refusal or failure of defendant to recognize and assume obligations coincident with its obligations as reformed; 28a Complaint and Demand for Jury Trial E. For the specific performance by the defendant of its obligations under said reformed contracts in the future; F. Or, in the alternative, for compensation in the amount of the reasonable and just value of plaintiff's performance and investment in the business of manufacturing nuclear components; G. For such further and other relief as plaintiff may be entitled to. TENTH COUNT 80. Plaintiff repeats and realleges the allegations contained in Paragraphs | through 16, inclusive, as if set forth at length herein. 81. Through mistake on the part of plaintiff and misrepresentations or other inequitable conduct on the part of the defendant, said contracts did not make adequate provision either in the price or the delivery schedule for the training, learning and practice, the stringency of the quality requirements as interpreted by defendant, the consequent high incidence of rework, or the other extreme difficulty and unusual expense, as well as the normal costs of performance, required on the part of a company such as plaintiff having no prior experience in the business to perform the inherently complex welding and other fabricating and testing operations in order to produce the ten (10) types of components in accordance with the requirements of the contracts. 82. Without prior experience in the unique complexities of nuclear component manufacture, and, at defendant’s urging, relying on defendant for guidance, plaintiff did not know of the 29a Complaint and Demand for Jury Trial inherent difficulty of the work and that literally years of firsthand experience and practice are required to perform it successfully. 83. Plaintiffs mistake consisted in the belief that its aerospace manufacturing capability equipped it to perform the contracts and earn a resonable profit at the prices and delivery schedules fixed therein by defendant, with little or no change in or addition to that capability, and without having to carry on extensive amounts of training, learning and practice, or encountering the stringent interpretations by defendant of the quality requirements, and consequent high incidence of rework, or the other extreme difficulty and unusual expense that it experienced in performing the contracts. 84. Defendant’s misrepresentation or other inequitable conduct consisted in its failure, despite its possession of superior knowledge of the extreme difficulty and unusual expense of producing the components, and of the stringency of the quality requirements as interpreted by defendant, to warn plaintiff thereof. 85. Plaintiff requested defendant to increase the prices of said contracts to cover the cost of the extensive amounts of training, learning, practice, rework and other extreme difficulty and unusual expense incurred by plaintiff to perform the inherently complex welding and other fabrication and testing operations to produce the components to the exacting, fail-safe quality requirements imposed by defendant, and defendant has refused to do so. 86. Plaintiff, as a result of the foregoing, has suffered great losses, but has no adequate remedy at law. WHEREFORE, plaintiff demands judgment against defendant as follows: 30a Complaint and Demand for Jury Trial That the contracts be reformed; (1) To cover the training, learning, development, practice, quality assurance, rework and other costs of performance incurred or to be incurred by the plaintiff in the first-time manufacture of these nuclear components; (2) To provide delivery schedules adequate to cover such first-time manufacture of the components by plaintiff; (3) To provide that plaintiff will earn reasonable profit from such manufacture of the components; That upon the contracts being so reformed, for an accounting, and for the payments due under the contracts as reformed; For such other sums as defendant may be found, on accounting, to be liable to plaintiff as compensation for plaintiffs diversion from its established lines of business of the capital and other resources necessary to enter the business of manufacturing the components; For such damages as plaintiff has sustained or may sustain as a result of any refusal or failure of defendant to recognize and assume obligations coincident with its obligations as reformed; For the specific performance by the defendant of its obligations under said reformed contracts in the future; 3la Complaint and Demand for Jury Trial F. Or, in the alternative, for compensation in the amount of the reasonable and just value of plaintiff's performance and investment in the business of manufacturing nuclear components; G. For such further and other relief as plaintiff may be entitled to. ELEVENTH COUNT 87. Plaintiff repeats and realleges all of the allegations contained in Paragraphs | through 16, inclusive, and Paragraphs 81, 82, 83, and 84, as if set forth at length herein. 88. Defendant further, and with the knowledge that plaintiff was laboring under the said mistaken belief concerning the effect and result of the contracts containing the price and delivery schedules set by defendant, permitted plaintiff to enter into the said contracts, to plaintiffs detriment. 89. Plaintiff repeats and realleges the allegations contained in Paragraphs 85 and 86 as if set forth at length herein. WHEREFORE, plaintiff demands judgment against defendant as follows: A. That the contracts be reformed; (1) To cover the training, learning, development, practice, quality assurance, rework and other costs of performance incurred or to be incurred by the plaintiff in the first-time manufacture of these nuclear components; oe 32a Complaint and Demand for Jury Trial (2) To provide delivery schedules adequate to cover such first-time manufacture of the components by plaintiff; (3) To provide that plaintiff will earn reasonable profit from such manufacture of the components; That upon the contracts being so reformed, for an accounting, and for the payments due under the contracts as reformed; For such other sums as defendant may be found, on accounting, to be liable to plaintiff as compensation for plaintiff's diversion from its established lines of - , business of the capital and other resources necessary to D. G. enter the business of manufacturing the components; For such damages as plaintiff has sustained or may sustain as a result of any refusal or failure of defendant to recognize and assume obligations coincident with its obligations as reformed; For the specific performance by the defendant of its obligations under said reformed contracts in the future; Or, in the alternative, for compensation in the amount of the reasonable and just value of plaintiffs performance and investment in the business of manufacturing nuclear components; For such further and other relief as plaintiff may be entitled to. 33a Complaint and Demand for Jury Trial TWELFTH COUNT 90. Plaintiff repeats and realleges all of the allegations contained in Paragraphs | through 16, inclusive, as if set forth at length herein. 91. In or about May 1971 while plaintiff was performing said contracts, defendant ordered and directed plaintiff to repeat the x-ray testing of the welds by plaintiff on a certain number of components, the welds on which plaintiff had already x-ray tested and found to meet the specification requirements. 92. Defendant’s order and direction to plaintiff to re-x-ray the weids was prompted by a complaint made to defendant by a disgruntled employee of plaintiff that x-ray of the welds was not being done in accordance with the specification requirements. 93. Defendant’s order and direction was made notwithstanding the fact that defendant participated in the x-ray testing of the welds and knew how it had been performed. 94. Plaintiff performed said work and defendant has accepted the results thereof. 95. The welds re-x-rayed were found to meet specification requirements. 96. Under the circumstances, said re-x-ray of the welds was not reasonably required to substantiate th-.t fact and accordingly constituted changed, extra or substituted work over and above the base work included in the prices of the respective contracts. 97. As a result ofthe performance of said changed, extra or substituted work, plaintiffs on-going production operations experienced disruption and inefficiency through preoccupation 34a Complaint and Demand for Jury Trial of plaintiffs quality control personnel and nondestructive test equipment and their resulting inability to timely detect and correct defective and inadequate welds and weld practices as they occurred. 98. As a proximate result of the foregoing facts, defendant is liable to plaintiff for additional compensation by way of a price increase or damages including not only the cost of the re-x- raying, but also the expense of the disruption and inefficiency caused the production operations as aforesaid. WHEREFORE, plaintiff demands judgment against defendant as follows: A. For compensatory damages, general and special; B. For interest and costs of suit; C. For attorneys fees. THIRTEENTH COUNT 99. Plaintiff repeats and realleges all of the allegations contained in Paragraphs | through 16, inclusive, as if set forth at length herein. 100. In or about October 1973 while plaintiff was performing said contracts, defendant disapproved the procedures used by plaintiff to perform magnetic particle testing. 101. Said disapproval action was taken by defendant notwithstanding the fact that the Government’s and defendant’s quality control and inspection personnel had theretofore approved plaintiffs training and testing program for its magnetic particle testing personnel and had conducted periodic surveillance audits of their testing. om 35a Complaint and Demand for Jury Trial 102. At defendant’s order and direction the magnetic particle testing of all affected production hardware in process was done over and defendant has accepted the results thereof. 103. The retested production hardware was found to meet specification requirements. 104. The repeat of the magnetic particle testing was not reasonably required by the terms of plaintiffs contracts to substantiate the fact that said production hardware met specification requirements and accordingly constituted changed, extra or substituted work over and above the base work included in the prices of the respective contracts. 105. As a result of the repeat of the magnetic particle testing, plaintiffs on-going production operations experienced delay, disruption and inefficiency. 106. As a proximate result of the foregoing facts, defendant is liable to plaintiff for additional compensation by \/ay of a price increase or damages including not only the cost of repeating the magnetic particle testing, but also the expense of the aforesaid delay, disruption and inefficiency of its production operations. WHEREFORE, plaintiff demands judgment against defendant as follows: A. For compensatory damages, general and special; B. For interest and costs of suit; C. For attorneys fees. 36a Complaint and Demand for Jury Trial FOURTEENTH COUNT 107. Plaintiff repeats and realleges all of the allegations contained in Paragraphs | through 13, inclusive, as if set forth at length herein. 108. At the times and places abovementioned, defendant awarded contracts to plaintiff designated as Purchase Order Nos. A-550, A-595, A-641, A-656, A-661, A-675, and A-113 whereby plaintiff agreed, among other things, to manufacture, assemble, inspect, test, deliver and warrant reactor vessel and closure head assemblies, including responsibility for the “design adequacy” of said reactor vessel and closure head assemblies under the conditions therein stated, in consideration for which defendant agreed to pay plaintiff therefor an aggregate price of Ninety-One Million Eight Hundred Twenty-Seven Thousand Three Hundred and Eighty-Eight ($91,827,388) Dollars, as more specifically provided in said contracts. 109. In the course of manufacture of the closure heads, plaintiff encountered dimensional and “fit-up” problems in installing parts thereof known as the “insulation and canning”, the solution of which required that changes be made in said insulation and canning as called for by the contract drawings in order to install the same satisfactorily and as contemplated by the contract specifications. 110. Plaintiff made the changes and performed the work incident thereto at the order, direction or request of the defendant and defendant has accepted the results thereof. 111. The aforesaid changes made by plaintiff in the insulation and canning constituted changed, extra or substituted work over and above the base work included in the prices of the respective contracts on account of which defendant is liable to 37a Complaint and Demand for Jury Trial plaintiff for additional compensation by way of an increase in . price or damages. 112. Plaintiff has demanded said price increase or damages and defendant has failed and refused to pay the same. WHEREFORE, plainiiff demands judgment against defendant as follows: A. For compensatory damages, general and special; B. For interest and costs of suit; C. For attorneys fees. FIFTEENTH COUNT 113. Plaintiff repeats and realleges all of the allegations contained in Paragraphs | through 13, inclusive, and Paragraph 108, as if set forth at length herein. 114. Through mutual mistake of the parties, or through mistake on the part of the plaintiff coupled with misrepresentations or other inequitable conduct on the part of the defendant, the said contracts did not fully and truly express the intention and meaning of the parties as to the conditions, scope or degree of plaintiff's responsibility for the design adequacy of the closure heads insofar as the “insulation and canning” were concerned. 115. The mutual mistake consisted of a failure of the parties to express their understanding that defendant was neither allowing the time that. would be required for, nor was it paying for a full design review of all aspects of the design of the 38a Complaint and Demand for Jury Trial components, that the components had already been built successfully by other contractors, and that plaintiff would only be required to perform a “design audii” to verily that the components as designed would comply with the operating and environmental conditions stated in the specications 116. Consequently, piaiautfs esign adequar responsibility did not include the dimensional and iit-uy croblems that were encounterec the in bic canning. 117. The misrepresentations or other inequitable conduc on the pari of the defendant consisted of its representation to plaintiff that the closure heads here in question had been successfully built by previous contractors in accordance with the drawings supplied by defendant, and defendant’s failure to disclose to plaintiff that dimensional and fit-up problems respecting the insulation and canning of closure heads made by previous contractors had been encountered. 118. But for the mutual mistake, or the mistake of plaintiff and misrepresentations or other inequitable conduct of defendant, plaintiff would have had no responsibility to make the abovementioned changes required to manufacture the closure heads aforesaid except upon payment therefor as for changed, extra or substituted work. 119. As a result of the foregoing, defendant is liable to plaintiff for additional compensation by way of a price increase or damages. 120. Plaintiff has no adequate remedy at law. WHEREFORE, plaintiff demands judgment against defendant as follows: al 39a Complaint and Demand for Jury Trial A. That the affected contracts be reformed to provide that resolution of the dimensional and fit-up problem encountered in installing the insulation and canning ‘constitutes changed, extra or substituted work for which plaintiff is entitled to additional compensation in the amount of $251,973.00; B. That upon the contracts being so reformed, for an accounting, and for the payments due under the contracts as reformed; C. For such other sums as defendant may be found, on accounting, to be indebted to the plaintiff under said reformed contracts; D. For such damages as plaintiff has sustained or may sustain as a result of any refusal or failure of defendant to perform its obligations under the aforesaid contracts as reformed; E. For such further and other relief as plaintiff may be entitled to. SIXTEENTH COUNT 121. Plaintiff repeats and realleges all of the allegations contained in Paragraph | through 13, inclusive, and Paragraph 63 as if set forth at length herein. 122. In the case of Purchase Order Nos. A-595, A-641, and A-656, plaintiff was not responsible for the design adequacy of the closure heads being manufactured thereunder inasmuch as the conditions under which it was to become respensible were not satisfied. 40a Complaint and Demand for Jury Trial 123. Until said conditions were satisfied, defendant is liable under said contracts in the case of any inadequacies in the design of the closure heads, as depicted in the contract drawings, to pay plaintiff additional compensation by way of a price increase or damages for any changes in said closure heads and the drawings thereof in order to make the design conform to the requirements of the specifications. 124. Plaintiff has fully preformed all the conditions of the contracts on its part and has claimed additional compensation under Purchase Order Nos. A-595, A-641,:and A-656 on account of said changes, and defendant has failed and refused to pay the same. WHEREFORE, plaintiff demands judgment | against defendant as follows: A. For compensatory damages, general and special; B. For interest and costs of suit; C. For attorneys fees. CRUMMY, DEL DEO, DOLAN & PURCELL Attorneys for Plaintiff s/ Peter E. Henry Peter E. Henry 4la Complaint and Demand for Jury Trial DEMAND FOR TRIAL BY JURY Please take notice that plaintiff demands trial by jury of all issues so triable. CRUMMY, DEL DEO, DOLAN & PURCELL Attorneys for Plaintiff s/ Peter E. Henry Peter E. Henry 42a ANSWER AND COUNTERCLAIM, FILED AUGUST 25, 1976 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Civil Action No. 76-794 [TITLE OMITTED] ANSWER AND COUNTERCLAIM ANSWER Defendant General Electric Company Answers the Complaint of Plaintiff Curtiss-Wright Corporation, as follows: 1. Defendant admits that there is diversity among the parties but denies that this is an action within the jurisdiction of this Court for the reasons set forth in Fourth, Thirteenth and Fourteenth Defenses set forth below. 2. Admitted. 3. Admitted. 4. Defendant admits that it is engaged, through its Machinery Apparatus Operation, in the business, among others, of purchasing nuclear propulsion plant components on behalf of the United States Navy. Defendant denies that it purchases such components for resale to the Navy. 5. Admitted. 6. Denied for the reasons set forth in the Fourth, Thirteenth and Fourteenth Defenses. 7. Admitted. 43a Answer and Counterclaim FIRST COUNT 8. Defendant admits that, during the period specified, discussions and later negotiations were held regarding the possibility of Plaintiff becoming a supplier of large components used in the construction of nuclear propulsion plants for Naval vessels. Defendant avers that said discussions and negotiations resulted from the mutual interests of Plaintiff in entering this field of endeavor and the needs of the Navy. Defendant avers on information and belief that such discussions and/or negotiations did not occur in meetings at which all three parties were present. Defendant denies the remaining allegations of Paragraph 8. 9. Admitted. 10. Defendant admits that it was seeking to develop a new source of supply for the aforesaid components, and that it projected a future need for said new source of supply. Defendant denies the remaining allegations of Paragraph 10. 11. Defendant admits that Plaintiff had engaged in the business of manufacturing aircraft engines and missile cases and that it had not actually manufactured nuclear components of the kind called for in the contracts giving rise to this litigation, although Plaintiff had manufactured other items for the Naval Nuclear Program. Defendant avers that Plaintiff represented, among other things, that its experience in other manufacturing endeavors was transferrable to the Naval Nuclear Program. Defendant denies the remaining allegations of Paragraph 11. 12. Defendant admits that it was aware that Plaintiff had no prior experience in the actual manufacture of the particular nuclear components for the Naval Nuclear Program which were the subject of the contracts giving rise to this‘ litigation. Defendant denies that it knew the extent of Plaintiff's experience 44a Answer and Counterclaim and capabilities to the same degree that Plaintiff knew its own experience and capabilities. Defendant denies the remaining allegations of Paragraph 12. 13. Denied. 14. Defendant admits that, acting on the Navy’s behalf, it entered into 21 contracts with Plaintiff relating to the manufacture and sale of nuclear components in the period specified. Defendant denies the remaining allegations of Paragraph 14. 15. Defendant admits that the contracts were designated as purchase orders with the numbers set forth in the Complaint and that Plaintiff agreed, among other obligations under said purchase orders, to manufacture, assemble, inspect, test, sell and deliver certain nuclear components. Defendant denies that said components were sold and delivered to it; and avers that they were sold and delivered to the Navy. Defendant further avers that by its calculation the total number of units was 162. Defendant further states that, although the aggregate price of said purchase orders is approximately as alleged in the Complaint, in view of change orders and other adjustments the exact total is subject to qualification and interpretation. Defendant denies the remaining allegations of Paragraph 15. 16. Denied. 17. Denied. 18. Denied. 19. Denied. 20. Denied. 21. Denied. 45a Answer and Counterclaim SECOND COUNT 22. Defendant admits and denies the allegations of Paragraph 22 of the Complaint in the manner set forth in Paragraphs | through 21, inclusive, of this Answer. 23. Denied. 24. Denied. 25. Denied. THIRD COUNT 26. Defendant admits and denies the allegations of Paragraph 26 of the Complaint in the manner set forth in Paragraphs | through 16, inclusive, of this Answer. 27. Denied. 28. Denied. 29. Denied. 30. Denied. FOURTH COUNT 31. Defendant admits and denies the allegations of Paragraph 31 of the Complaint in the manner set forth in Paragraphs | through 16, inclusive, of this Answer. 32.-33. Paragraphs 32 and 33 of the Complaint set forth legal conclusions as to which no answer is required; however, if 46a Answer and Counterclaim an answer is required, Defendant denies the allegations of Paragraphs 32 and 33. 34. Denied. 35. Denied. 36. Defendant admits that Plaintiff incurred capital expenditures relating to the performance of the purchase orders. Defendant denies for lack of information the allegations of alleged losses incurred by Plaintiff. Defendant avers that Plaintiffs entry into this business, its signing of the purchase orders, and its making of any investments with respect to the Naval Nuclear Program were the result of business judgments made by Plaintiff, an experienced and substantial firm. Defendant denies the remaining allegations of Paragraph 36. 37. Denied. FIFTH COUNT 38. Defendant admits and denies the allegations of Paragraph 38 of the Complaint in the manner set forth in Paragraphs | through 16, inclusive, of this Answer. 39. Paragraph 39 sets forth a legal conclusion as to which no answer is required; however, if an answer were required, Defendant denies the allegations of Paragraph 39. 40. Denied. 41. Denied. 42. Denied. 47a Answer and Counterclaim 43. Denied. 44. Denied. SIXTH COUNT 45. Defendant admits and denies the allegations of Paragraph 45 of the Complaint in the manner set forth in Paragraphs | through 15, inclusive, of this Answer. 46. Denied. 47. Defendant avers that as part of the business relationship between it and Plaintiff, it was understood that Defendant would provide reasonable cooperation, consistent with the contract terms, in furnishing Plaintiff such information pertinent to the performance of the agreements as Defendant possessed but Plaintiff did not. Defendant further avers that said understanding is not contained in any formal agreements, other than as it is implict in the review process provided for in the contracts. Defendant further avers at all times during the course of its business relationship with Plaintiff it not only acted in full conformity with that understanding, but provided Plaintiff with valuable assistance far beyond any requirements of the contract. Defendant denies the remaining allegations of Paragraph 47. 48. Denied. 49. Defendant admits that the listed purchase orders were entered into with Plaintiff, but denies that said actions were “{iJn reliance on said agreement.” Defendant denies the remaining allegations of Paragraph 49. 50. Defendant admits that Plaintiff made certain capital expenditures for construction of a separate factory building and 48a Answer and Counterclaim for special purpose facilities. Defendant denies that any such actions of Plaintiff were “{iJn further reliance on said agreement.” Defendant denies the remaining allegations of Paragraph 50. 51. Defendant avers that, in accordance with the understanding described in Paragraph 47 of this Answer, from time to time it received from Plaintiff certain information concerning the manner, methods, processes and procedures for manufacturing the components to be delivered, and that it from time to time commented on said information. Defendant further avers that, under the contractual relationships, Plaintiff had the legal duty to devise appropriate manners, methods, processes and procedures that conformed to the Navy’s specifications or other requirements. Defendant further avers that it provided Plaintiff with such knowledge or information as was requested or appropriate as set forth in Paragraph 47 of this Answer. Defendant denies the remaining allegations of Paragraph 51. 52. Denied. 53. Defendant admits that Plaintiff made capital expenditures relating to the performance of the purchase orders. Defendant denies for lack of information the allegations that Plaintiff incurred losses in the performance of the purchase orders. Defendant denies the remaining allegations of Paragraph 53. SEVENTH COUNT 54. Defendant admits and denies the allegations of Paragraph 54 of the Complaint in the manner set forth in Paragraphs 45 through 47, inclusive, of this Answer. 49a Answer and Counterclaim 55. Denied. 56. Defendant admits that in the early discussions between Plaintiff and Defendant it was not anticipated that Plaintiff's participation in the Naval Nuclear Program would be “temporary” or that it was related to “temporary” build-ups. Defendant denies, however, that there was any representation, agreement, or assurance as to the scope of the future business to be available to Plaintiff. Defendant further avers that the availability of such business was a matter within the control of persons other than Defendant, including the United States Congress and the Navy. Defendant denies the remaining allegations of Paragraph 56. 57. Denied. 58. Denied. 59. Defendant denies for lack of information the allegations that Plaintiffs cost of performing the 21 contracts exceeded the contract prices. Defendant denies the remaining allegations of Paragraph 59. 60. Denied. 61. Denied. EIGHTH COUNT 62. Defendant admits and denies the allegations of Paragraph 62 of the Complaint in the manner set forth in Paragraphs | through 16, inclusive, of this Answer. 63. Admitted, except that Defendant denies the allegation that such awards or purchase orders were “as aforesaid.” 50a Answer and Counterclaim 63. Defendant avers that specifications of the components to be manufactured, and qualifications of welders, weld operators, welding procedures, welding equipment, testing procedures, and other items were contained in Navy documents which were incorporated by reference in the purchase orders. Defendant further avers that said documents speak for themselves as to their requirements and that Plaintiff's characterization of them is incomplete. Defendant denies the remaining allegations of Paragraph 63. 64. Denied. 65. Denied. 66. Defendant admits that Plaintiff produced components which failed to meet the specified physical characteristics and which necessitated substantial amounts of rewerk. Defendant denies that said failure occurred through any action or inaction of Defendant, and further denies the remaining allegations of Paragraph 66. 67. Defendant admits that Plaintiffs welding personnel, although “qualified” in the sense that they had obtained certain required certificates, had to undergo extensive additional training and learning before they were able to produce components meeting specifications. Defendant avers that this failure of Plaintiff to provide personnel able to do the job correctly did not result from any action or inaction of Defendant, and resulted in substantial delays and expenses to Defendant. Defendant denies the remaining allegations of Paragraph 6/7. 68. Defendant admits that both it and Plaintiff, as well as the Navy, ultimately became aware of Plaintiffs inability or difficulty in producing components meeting specifications. Sla Answer and Counterclaim Defendant denies that this awareness resulted from Plaintiff's giving of “notice.” Defendant denies the remaining allegations of Paragraph 68. 69. Denied. 70. Denied. NINTH COUNT 71. Defendant admits and denies the allegations of Paragraph 71 of the Complaint in the manner set forth in Paragraphs | through 16, inclusive, of this Answer. 72. Denied. 73. Denied. 74. Defendant admits that Plaintiff may have made a mistake of business judgment in assessing its own capability to perform the contracts and earn a profit upon them. Defendant denies the remaining allegations of Paragraph 74. 75. Defendant avers that it believed at the outset of its relationship with Plaintiff that Plaintiff did possess the capability required to produce the components, without extreme difficulty and unusual expense. Defendant avers, however, that at all times it was contemplated that additional training, learning, and practice would be required in order for personnel of Plaintiff to be able to accomplish the required work. Defendant denies the remaining allegations of Paragraph 75. 76. Defendant avers that, based largely upon the representations made ‘by the Plaintiff to Defendant and Defendant’s assumption that Plaintiff would perform in a 52a Answer and Counterclaim workmanlike manner, Defendant anticipated that Plaintiff would be able to perform the contracts ‘and earn a reasonable profit thereon. Defendant further avers that the profitability of these contracts was subject to risks as is the case with all fixed- price contracts. Defendant denies the remaining allegations of Paragraph 76. 77. Defendant denies for lack of knowledge the allegation that Plaintiff incurred losses in the performance of the purchase orders. Defendant denies the remaining allegations of Paragraph 77. 78. Denied. 79. Denied. TENTH COUNT 80. Defendant admits and denies the allegations of Paragraph 80 of the Complaint in the manner set forth in Paragraphs | through 16, inclusive, of this Answer. 81. Defendant denies for lack of information the allegation that Plaintiff made a unilateral mistake in negotiating provisions of the contract regarding the subjects set forth in Paragraph 81 of the Complaint. Defendant denies that the inclusion or exclusion of any provisions in the contracts was attributable to or resulted from or in any misrepresentation or other inequitable conduct by the Defendant. Defendant denies the remaining allegations of Paragraph 81. 82. Defendant admits that Plaintiff underestimated the difficulty of the work. Defendant denies the remaining allegations of Paragraph 82. 53a Answer and Counterclaim 83. Defendant denies for lack of information the allegations of Paragraph 83 concerning the reasons for and substance of Plaintiffs alleged unilateral mistake. Defendant denies the remaining allegations of Paragraph 83. ‘. 84. Denied. 85. Denied. 86. Denied. ELEVENTH COUNT “ 87. Defendant admits and denies the allegations of Paragraph 87 of the Complaint in the manner set forth in Paragraphs | through 16, inclusive, and Paragraphs 81 through 84, inclusive, of this Answer. 88. Denied. 89. Denied. TWELFTH COUNT 90. Defendant admits and denies the allegations of Paragraph 90 of the Complaint in the manner set forth in Paragraphs | through 16, inclusive, of this Answer. 91. Defendant admits that beginning in or about May 1971, Plaintiff, at the request of the Navy as well as Defendant, repeated x-ray testing of certain welds which Plaintiff had made. Defendant denies that Plaintiff was “ordered and directed” by Defendant to perform such tests. Defendant denies for lack of information the allegation that Plaintiff had already found said welds to meet specifications. Defendant denies the remaining allegations of Paragraph 91. cr 54a Answer and Counterclaim 92. Defendant admits that a request that x-ray testing be repeated was made in or about May 1971, and that such request was prompted by a complaint made by an employee of Plaintiff. Defendant avers that said complaint was not only that x-rays of welds were not done in accordance with specifications, but that there had been falsification of radiographic inspection records. Defendant denies that it gave Plaintiff any “order and direction.” Defendant denies the remaining allegations of Paragraph 92. 93. Defendant denies that it gave Plaintiff any “order and direction.” Defendant admits that some of its employees had some information as to how x-ray testing was performed but denies that it “participated” in that testing. Defendant further avers that said testing and the manner of its performance was the responsibility of Plaintiff. Defendant denies the remaining allegations of Paragraph 93. 94. Defendant admits that Plaintiff performed certain x-ray tests but denies that Defendant “accepted the results thereof.” Because it is not clear as to what Plaintiff means by “said work”, Defendant is unable fully to answer Paragraph 94 of the Complaint and therefore denies it. Defendant denies the remaining allegations of Paragraph 94. 95. Denied. 96. Denied. 97. Defendant admits that Plaintiff experienced difficulty in timely detecting and correcting defective and inadequate welds and weld practices as they occurred. Defendant denies the remaining allegations of Paragraph 97. 98. Denied. 55a Answer and Counterclaim THIRTEENTH COUNT 99. Defendant admits and denies the allegations of Paragraph 99 of the Complaint in the manner set forth in Paragraphs | through 16, inclusive, of this Answer. 100. Defendant admits that it was recommended to Plaintiff that it change the procedures used to perform magnetic particle testing. Defendant denies that said recommendations occurred in or about October 1973, and avers that such recommendations were made at least as early as June 1972. Defendant denies the remaining allegations of Paragraph 100. 101. Defendant admits that it as well as the Government conducted periodic surveillance audits of Plaintiffs testing. Defendant avers that, under the contracts, final responsibility for all these aspects of performance, training, and testing was placed on Plaintiff. Defendant denies the remaining allegations of Paragraph 101. 102. Denied. 103. Denied. 104. Denied. 105. Denied. 106. Denied. FOURTEENTH COUNT 107. Defendant admits and denies the allegations of Paragraph 107 of the Complaint in the manner set forth in Paragraphs | through 13, inclusive, of this Answer. 56a Answer and Counterclaim 108. Defendant admits that, acting on behalf of the Navy, it awarded contracts to Plaintiff designated as purchase orders with the numbers set forth in Paragraph 108, and that Plaintiff agreed, among other things, to undertake the duties set forth in Paragraph 108. Defendant avers that the purchase orders speak for themselves as to their contents. Because “the times and places abovementioned” are not specified Defendant denies that allegation of Paragraph 108. Defendant admits that the aggregate purchase price of the eight specified purchase orders is approximately as alleged in Paragraph 108, but avers that the exact aggregate purchase price may be subject to qualification and interpretation. Defendant denies the remaining allegations of Paragraph 108. 109. Defendant admits that in the course of manufacturing closure heads Plaintiff encountered dimensiona: @ffd “fit-up” problems in installing parts known as “insulation and canning.” Defendant further admits that the resolution of these problems required that changes be made in insulation and canning as shown in buyer-furnished drawings, but avers that the allegation of the Complaint is incomplete and misleading in that, under the contracts, design responsibility for such changes was on Plaintiff. Defendant denies the remaining allegations of Paragraph 109. 110. Denied. 111. Denied. 112. Defendant admits that Plaintiff demanded a price increase for the matters alieged in the Fourteenth Count of the Complaint, but denies that Defendant has “failed and refused to pay the same.” Defendant instead avers that a request for a change by Plaintiff has not yet been acted upon. Defendant denies the remaining allegations of Paragraph 112. 57a Answer and Counterclaim FIFTEENTH COUNT 113. Defendant admits and denies the allegations of Paragraph 113 of the Complaint in the manner set forth in Paragraphs | through 13, inclusive. and Paragraph 108 of this Answer. 114. Denied. 115. Denied. 116. Denied. 117. Denied. 118. Denied. 119. Denied. 120. Denied. SIXTEENTH COUNT 121. Defendant admits and denies the allegations of Paragraph 121 of the Complaint in the manner set forth in Paragraphs | through 13, inclusive, and Paragraph 63 of this Answer. 122. Paragraph 122 primarily sets forth a legal conclusion as to which no answer is required; however, insofar as an answer is required, the allegations of Paragraph 122 are denied. 123. Paragraph 123 of the Complaint sets forth a legal conclusion as to which no answer is required; however, if an answer is required, Defendant denies the allegations of Paragraph 123. 58a Answer and Counterclaim 124. Defendant admits that Plaintiff has claimed additional compensation under the specified purchase orders. Defendant denies that Plaintiff has fully performed all the conditions of said contracts. Defendant further denies that it has failed and refused to pay the additional compensation requested by Plaintiff under said purchase orders and avers that the claim has not yet been acted upon. Defendant denies the remaining allegations of Paragraph 124. FIRST DEFENSE The Complaint fails to state a claim on which relief can be granted. SECOND DEFENSE The claims asserted in the Complaint are barred by the statute of limitations. THIRD DEFENSE Any equitable claims asserted in the Complaint which are not barred by the statute of limitations, are barred by laches. FOURTH DEFENSE *. all times pertinent to the Complaint, and in the performance of its duties relating to the formation and implementation of the contracts which are the subject of the Complaint, Defendant acted on behalf of the Navy. Accordingly; (a) The claims asserted in the Complaint which sound in tort are barred by the exceptions to the Federal Tort Claims Act, 28 U.S.C. §2680(a) and (h), for discretionary functions, misrepresentation, deceit or interference with contract rights. 59a Answer and Counterclaim (b) Defendant is immune from tort liability in this case under the official immunity doctrine. (c) The claims asserted in the Complaint which sound in contract cannot be brought to this Court because the claims asserted exceed $10,000, the jurisdictional limit of the Tucker Act, 28 U.S.C. §1346(a). FIFTH DEFENSE Any claims asserted in the Complaint based upon fraud or mistake are not stated with particularity and accordingly are fatally defective under Rule 9(b), Federal Rules of Civil Procedure. SIXTH DEFENSE Any claims asserted in the Complaint based upon alleged “negligence” of Defendant are barred by the contributory negligence of Plaintiff. SEVENTH DEFENSE Plaintiffs claims are barred by its failure to seek relief or exhaust its remedies under the “Changes, Extras and Substitutions” clause of each of the purchase orders. EIGHTH DEFENSE Plaintiffs claims are barred by its agreement in the aforesaid “Changes, Extras and Substitutions” clause, that: “Buyer will, not pay for additional work or extras unless such work or extras have been ordered in writing and the price therefor agreed upon. EE ee a ee es Sa a ae ee ee ee i ee ne eT a ee Ce et ee ee ee ee oe eee 60a Answer and Counterclaim Changes made by Seller without an authorized Change Order or Amendment shall be made at the sole risk of Seller, there being no financial recourse against Buyer.” . NINTH DEFENSE Any claims asserted in the Complaint based upon (a) inspections or testing of any work, or approvals of design, drawings, samples, test results, procedures or schedules by the Government or by Defendant; or (b) requirements by the Government or Defendant that Plaintiff correct defects in its work, are barred by the “Inspection” clause of each of the purchase orders, and by the administrative specifications. TENTH DEFENSE The Counts of the Complaint asserting “agreements” of Defendant which are not set forth in the purchase orders are barred by the “Contract Rights” clause of these orders. ELEVENTH DEFENSE Plaintiff is estopped from maintaining this action or from recovering upon the claims asserted in its Complaint by virtue of various actions taken by it, and/or by failures by it to act, upon which Defendant relied, including but not limited to the following: (a) Its representations made prior to the formation of its contractual relationship with Defendant, in order to induce Defendant and the Navy to approve it as a contractor for the large components used in the Naval Nuclear Program, that Plaintiff had the expertise and capabilities to perform the contracts satisfactorily in accordance with the Navy’s 6la Answer and Counterclaim requirements, and to perform highly skilled work of the type and magnitude required by the Naval Nuclear Program. (b) Its entry into fixed-price contracts, which are by their very nature inconsistent with Plaintiffs present position that it was assured a profit. (c) Its agreement to or acquiescence in the activities, such as inspections, additional x-rays, re-welding, etc., which are the subject of the Complaint. (d) Its inducing of Defendant and the Navy to approve it as contractor for additional purchase orders, and its entry into additional purchase orders, without its having raised any complaints regarding older purchase orders. (e) Its failure to raise the claims now asserted, while the contracts were being implemented, and despite the extraordinary assistance rendered to Plaintiff by Defendant which benefitted Plaintiff greatly and which prevented Plaintiff from suffering great losses on the purchase orders and/or totally defaulting on them. (f) Its filing of a request for relief under Public Law 85-804, and various representations and admissions made in conjunction therewith, including that Plaintiff had no adequate judicial remedy and that its losses resulted from Plaintiff's own misjudgments as to the requirements and difficulty of the work. TWELFTH DEFENSE The claims asserted in the Complaint have been waived and abandoned by Plaintiff, in light of the considerations set forth in the Eleventh Defense. 62a Answer and Counterclaim THIRTEENTH DEFENSE The United States is a party that must ve joined as to all counts of the Complaint seeking reforma:tol rescission, since must approve all modifications « lange ancellations of -ontracts in excess of $10,000 between L> ind Plaintiff Since the equitable relief sough ‘on acapable + ¥ o} an ba 7 Tat , Niccsea verjormance tnose councs Scen b nder Rule i9, Federai ruies OURT Counts 3,.5,. 9, 10; HM, 15 of the chunt seeking reformation or rescission are barred by the Cocirine of sovereign immunity. FIFTEENTH DEFENSE Plaintiffs requests for equitable relief are barred because it comes into Court with unclean hands. SIXTEENTH DEFENSE The Complaint must be dismissed as violative of Rule 8, Federal Rules of Civil Procedure, in that its statements of claims are not “short and plain” and its averments are not “simple, concise, and direct.” SEVENTEENTH DEFENSE During the course of the performance of the contracts, Plaintiff failed (a) to perform its obligations in a workmanlike manner; (b) to establish on a timely basis adequate quality control programs and procedures: (c) to use personnel with 63a Answer and Counterclaim adequate competence and training in its quality control program, and in production tasks; (d) to supply adequate tooling, machinery and testing equipment; and (e) to establish and implement adequate testing and inspection programs. As a result, Plaintiff produced faulty materials which had to be reworked and retested, caused delays in production and delivery of the components, and caused great additional expense, the costs and damage of which which (sic) must be set-off against any recovery by Plaintiff. WHEREFORE, Defendant General Electric Company demands that the Complaint be dismissed with prejudice; that costs and its attorney’s fees be awarded to Defendant; and that the Court grant to Defendant such other, further and additional relief as may be just and proper. COUNTERCLAIM 1. During the period 1968 through 1972, Defendant on behalf of the Navy and Plaintiff entered into contracts designated as Purchase Order Nos. A-550, A-595, A-641, A-642, A-656, A-661, B-382, B-423, B-428, B-412, B-433, B-443, B-384, B-425, B-429, B-410, A-675, A-113, B-451, B-452 and B-478. 2. Plaintiff agreed under each of the aforesaid purchase orders to manufacture, for delivery to the Navy, certain large components for use in the construction of nuclear propulsion plants for Naval vessels. 3. Under the aforesaid purchase orders, Plaintiff agreed © and undertook the obligations, among others, of training welders and other personnel to Navy requirements; of furnishing and using employees competent to perform welding, weld-testing and other skilled tasks contemplated by the agreements; and of constructing the components to Navy specifications and to deliver the components in accordance with specified delivery schedules. 64a Answer and Counterclaim 4. Plaintiff agreed and was obligated to furnish and use adequate tooling, machinery and testing equipment to perform the work under the purchase orders in a timely and workmanlike manner, consistent with the high standards of the Naval Nuclear sad 5. Plaintiff did not perfor its obligations under the agrermnan in a eatin workmanlike manner in that: (a) Its anion did not‘ establish quality’ control programs and procedures adequate or in time to assure the production of components ‘of. the high quality” and on the schedule required for the Navy’s program, and did not use personnel with sufficient competence and training to carry out a quality controt program of the’sophistication required for work of the nature required by thepurchase orders. (b) It failed to establish adequate training programs for welders. (c) It failed to supply welders with the ability to perform the required work correctly and timely. (d) Its empicyees produced numerous defective welds, and failed to find defects in its welds. (e) It failed to supply tooling, machinery, and testing equipment adequate to perform the work as required and in a timely fashion, but instead supplied inadequate and old tooling, machinery and testing equipment. (f) It failed to establish and implement testing and inspection programs and practices adequate to find and correct construction defects in a timely and efficient manner. 65a Answer and Counterclaim 6. Each of the defects in its performance as set forth in Paragraph 5 above was pointed out to Plaintiff by representatives of the Navy and/or Defendant, who made specific recommendations to assist Plaintiff in curing the defects, and/or avoiding future or repeated defects. Plaintiff either failed to accept the recommendations, failed to carry out fully recommendations which it did accept, or did so in an untimely manner after further delays and expenditures had resulted from its actions. 7. As a direct result of the matters set forth in Paragraphs 5 and 6 above, substantial delays occurred in the progress of the work which Plaintiff was obligated to perform, numerous errors were made by Plaintiff in the production and testing of the components which Plaintiff was obligated to deliver, much of the work which Plaintiff performed had to be redone, and much work had to be deferred while Plaintiff corrected its errors and belatedly revised its quality control, testing and training programs. 8. Also as a direct result of the matters set forth in Paragraphs 5 and 6 above, it became necessary for Defendant to make extraordinary efforts, far beyond those contemplated by the contract or anticipated as a part of the normal cooperation of contracting parties acting in good faith, in order to prevent a major default in the performance of its and Plaintiff's obligations to the Navy. Defendant's efforts included special assistance v0 Plaintiff to help it to correct its deficiencies in each of the areas set forth in Paragraph 5 above and to establish quality control and testing programs adequate to meet the high standards of the Naval Nuclear Program. 9. Defendant's provision of intensive and special assistance to Plaintiff conferred great benefits upon Plaintiff, in that (a) Defendant performed work which was the contractual 66a Answer and Counterclaim responsibility of Plaintiff; (b) prevented substantial losses which otherwise would ‘tave~-befallen Plaintiff; and (c) averted a probable total default in contract performance by Plaintiff and the termination of Plaintiff's position as a supplier of large components to the Naval Nuclear Program. 10. Defendant has not been compensated in whole or in any part, for the benefits it conferred upon Plaintiff nor for the losses to Plaintiff which Defendant's efforts averted. 11. Plaintiff caused great increases in the costs of the production and delivery of the nuclear components required by the purchase orders, which costs in part were passed on to, and borne by, the Navy. 12. At all times pertinent hereto, in its relationship with Plaintiff, Defendant was a contractor of the Navy and was acting on the Navy’s behalf. COUNT I 13. Defendant repeats and realleges the allegations of Paragraphs 1-12, inclusive, of this Counterclaim. 14. Plaintiff breached its obligations under the purchase orders to manufacture and deliver said components for the Naval Nuclear Program. 15. Said breaches by Plaintiff of its obligations resulted in substantial damages, which Defendant is entitled to recover from Plaintiff for the ultimate benefit of the United States. COUNT Il 16. Defendant repeats and realleges the allegations of Paragraphs 1-12, inclusive, of this Counterclaim. 67a Answer and Counterclaim 17. Plaintiff impliedly warranted that it would perform the obligations under the purchase orders in a workmanlike manner, and would provide competent management, adequate tools and machinery, adequate training and testing procedures, and adequate quality control procedures. 18. Plaintiff breached the warranty described in Paragraph 17 above. 19. Said breach by Plaintiff of its warranty resulted in substantial damages, which Defendant is entitled to recover from Plaintiff for the ultimate benefit of the United States. COUNT IiIl 20. Defendant repeats and realleges the allegations of Paragraphs 1-12, inclusive, of this Counterclaim. 21. Durn.g the negotiations leading up io Plaintiff's entry into the Naval Nuciear Program, Plaintiff represented that it was competent to m. iufacture and deliver ‘arge components for the Naval Nuck rt Program; and that ‘ts experience in aerospace projects quaiified it to perform the necessary tasks, including welding of large components for the Naval Nuclear Program. 22. During the performance of the purchase orders set forth in Paragraph | of this Counterclaim, Plaintiff represented that it was capable of instituting and would institute additional quality control procedures, and that it would apply or install tooling, machinery, training and testing procedures, and use personnel, adequate to manufacture the items in a timely and workmanlike i ianner consistent with the high standards of the Naval Nuclear Program. | OOOO 68a Answer and Counterclaim 23. The representations described in Paragraph 21 and 22 were made to induce Defendant and the Navy to accept Pia:atiff as a contractor for large components in the Naval Nuclear Program, to agree to enter into or approve additional purchase orders with Plaintiff, and/or to refrain from declaring Plaintiff in default, as they had a right to do in view of the acts and omissions alleged in Paragraphs 1-12. 24. Defendant and the Navy relied upon the aforesaid representations of Plaintiff in accepting Plaintiff as a supplier, in issuing it additional purchase orders, and in not terminating it for default. 25. The aforesaid representations were false and unfounded and were not carried out by Plaintiff. 26. Said representations by Plaintiff, and Plaintiffs failure to carry out these representations, resulted in substantial damages, which Defendant is entitled to recover from Plaintiff for the ultimate benefit of the United States. COUNT IV 27. Defendant repeats and realleges the allegations of Paragraphs 1-12 and 21-26, inclusive, of this Counterclaim. 28. By virtue of the representations set forth in Paragraphs 21-26, Plaintiff expressly warranted its ability and capacity to perform in a timely and workmanlike manner the work required by the purchase orders, consistent with the high standards of the Naval Nuclear Program. 29. Plaintiff breached the warranty described in Paragraph 28 above. 69a Answer and Counterclaim 30. Said breach by Plaintiff of its warranty resulted in substantial damages, which Defendant is entitled to recover from Plaintiff for the ultimate benefit of the United States. COUNT V 31. Defendant repeats and realleges the allegations of Paragraphs 1-30, inclusive, of this Counterclaim. 32. As the result of Defendant’s assistance to Plaintiff in the performance of Plaintiff's contractual duties, as alleged in Paragraph 9 of this Counterclaim, Plaintiff has been unjustly enriched. 33. Plaintiff is liable to Defendant for the benefits conferred, or losses to Plaintiff prevented, through Defendant’s actions. WHEREFORE, Defendant demands as relief from Plaintiff the following damages: ; 1. The damages and additional costs incurred as a result of the actions and inactions of Plaintiff complained of in this Counterclaim. 2. The value of the benefits and avoidance of losses conferred upon Plaintiff through Defendant’s efforts alleged in Paragraph 32 and 33 of this Counterclaim. 3. Defendant's costs, disbursements and attorney’s fees of this litigation. 4. Such other, further and additional relief as to this Court may seem just and proper. 70a Answer and Counterclaim COLE AND GRONER, P.C. By ALAN Y. COLE WALTER H. FLEISCHER ALFRED F. BELCUORE 1730 K Street, N.W. Washington, D.C. 20006 HANNOCH, WEISMAN, STERN & BESSER By ALBERT G. BESSER 744 Broad Street Newark, New Jersey 07102 Attorneys for Defendant-Counter- claimant General Electric Company Of Counsel: ROLAND C. RADICE, ESQ. MICHAEL A. LAMANNA, ESQ. General Electric Company One River Road Schenectady, New York 12345 Tla REPLY TO COUNTERCLAIM, FILED OCTOBER 15, 1976 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Civil Action No. 76-794 (Judge Coolahan) [TITLE OMITTED} Curtiss-Wright Corporation replies to the Counterclaim herein of General Electric Company as follows: 1. Plaintiff admits that it entered into various contracts with defendant as designated by the purchase order numbers set forth in paragraph | of the Counterclaim, except that No.B-443 should be B-442, but denies that it entered into said contracts with the Navy directly or with defendant on behalf of the Navy. 2. Plaintiff avers that the aforesaid purchase orders speak for themselves, but admits that the components manufactured by it are and were intended for use in the construction of nuclear propulsion plants for Naval vessels. 3. Plaintiff denies the allegations of paragraph 3 of the Counterclaim and avers that the aforesaid purchase orders speak for themselves concerning plaintiffs obligations set forth therein. Plaintiff further avers that it is entitled to have its agreements and obligations as set forth in the purchase orders modified and reformed by reason of the matters set forth in the Complaint. 4. Plaintiff denies the allegations of paragraph 4 of the Counterclaim and avers that the aforesaid purchase orders speak for themselves concerning plaintiff's obligations set forth therein. Plaintiff further avers that is is entitled to have its agreements and obligations as set’forth in the purchase orders modified and reformed by reason of the matters set forth in the Complaint. 72a Reply to Counterclaim 5. Plaintiff denies each and every allegation set forth in paragraph 5 of the Counterclaim. 6. Plaintiff denies each and every allegation of paragraph 6 of the Counterclaim. 7. Plaintiff denies each and every allegation of paragraph 7 of the Counterclaim. 8. Plaintiff denies each and every allegation of paragrapi: 8 of the Counterclaim. 9. Plaintiff denies each and every allegation of paragraph 9 of the Counterclaim. 10. Plaintiff denies that defendant’s efforts averted any losses to plaintiff or that defendant conferred upon plaintiff any benefits or that defendant is entitled to compensation from plaintiff. 11. Plaintiff denies each and every allegation of paragraph 11 of the Counterclaim. 12. Plaintiff admits that defendant was a contractor of the Navy but denies the remaining allegations of paragraph 12 of the Counterclaim. COUNT I 13. Plaintiff repeats and realleges its responses to paragraphs | through 12 of the Counterclaim as if set forth at length herein. 14. Plaintiff denies each and every allegation of paragraph 14 of the Counterclaim. 73a Reply to Counterclaim 15. Plaintiff denies each and every allegation of paragraph 15 of the Counterclaim. COUNT Il 16. Plaintiff repeats and realleges its responses to paragraphs | through 12 of the Counterclaim as if set forth at length herein. 17. Plaintiff denies each and every allegation of paragraph 17 of the Counterclaim. 18. Plaintiff denies each and every allegation of paragraph 18 of the Counterclaim. 19. Plaintiff denies each and every allegation of paragraph 19 of the Counterclaim. COUNT III 20. Plaintiff repeats and realleges its responses to paragraphs | through 12 of the Counterclaim as if set forth at length herein. 21. Plaintiff denies each and every allegation of paragraph 21 of the Counterclaim. Any statement, written or otherwise, by plaintiff with respect to its competence to manufacture and deliver large components for the Naval nuclear program resulted directly from and were dependent upon defendant’s assurances, agreements, representations, and warranties to plaintiff as set forth in paragraphs 13, 16(b), 16(c), 46-48, 64, 65 and 82 of the Complaint in this action, or were based upon the mutual mistake of the parties as set forth in the Ninth Count of the Complaint, or were based upon the mistake of plaintiff and the misrepresentations and other inequitable conduct of defendant as set forth in the Tenth Count of the Complaint. 74a Reply to Counterclaim 22. Plaintiff denies each and every allegation of paragraph 22 of the Counterclaim. Any statements, written or otherwise, by plaintiff with respect to its capability to institute and intention to institute additional quality control procedures, and its intention to apply or install tooling, machinery, training and testing procedures, and use personnel adequate to manufacture the items in a timely and workmanlike manner consistent with the high standards of the Naval nuclear program, resulted directly from and were dependent upon defendant’s assurances, agreements, representations and warranties to plaintiff as set forth in paragraphs 13, 16(b), 16(c), 46-48, 64, 65 and 82 of the Complaint in this action, or were based upon the mutual mistake of the parties as set forth in the Ninth Count of the Complaint, or were based upon the mistake of plaintiff and the misrepresentations and other inequitable conduct of defendant as set forth in the Tenth Count of the Complaint. 23. Plaintiff denies each and every allegation of paragraph 23 of the Counterclaim. 24. Plaintiff denies each and every allegation of paragraph 24 of the Counterclaim. 25. Plaintiff denies each and every allegation of paragraph 25 of the Counterclaim. 26. Plaintiff denies each and every allegation of paragraph 26 of the Counterclaim. COUNT IV 27. Plaintiff repeats and realleges its responses to paragraphs | through 12 and 21 through 26 of the Counterclaim as if set forth at length herein. 75a Reply to Counterclaim 28. Plaintiff denies each and every allegation of paragraph 28 of the Counterclaim. 29. Plaintiff denies each and every allegation of paragraph 29 of the Counterclaim. 30. Plaintiff denies each and every allegation of paragraph 30 of the Counterclaim. COUNT V 31. Plaintiff repeats and realleges its responses to paragraphs | through 30 of the Counterclaim as if set forth at length herein. 32. Plaintiff denies each and every allegation of paragraph 32 of the Counterclaim. 33. Plaintiff denies each and every allegation of paragraph 33 of the Counterclaim. FIRST AFFIRMATIVE DEFENSE Each Count of the Counterclaim fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE Defendant has no standing to assert those claims of the Counterclaim seeking recovery on behalf or for the benefit of the United States. THIRD AFFIRMATIVE DEFENSE As to the claims of the Counterclaim brought by defendant on behalf of or for the ultimate benefit of the United States defendant is not the real party in interest. 76a Reply to Counterclaim FOURTH AFFIRMATIVE DEFENSE Defendant is estopped from asserting its Counterclaim by the doctrine of unclean hands, including defendant’s fraud, misrepresentations, overreaching, and other inequitable conduct, as well as defendant’s breaches of contract, warranty and covenant of good faith and fair dealing. Defendant is further estopped from asserting and/or has waived its rights with respect to the claims in the Counterclaim by permitting plaintiff to expend large amounts of time and money in continued performance of the work and acceptance of said performance. FIFTH AFFIRMATIVE DEFENSE Any delays in plaintiffs performance of the work called for by the purchase orders which are the subject of the Counterclaim were caused by defendant’s fraud, misrepresentations, overreaching and other inequitable conduct, as well as defendant’s breaches of contract, warranty and covenant of good faith and fair dealing. Defendant is also estopped and/or has waived any claims for delay by permitting plaintiff to expend large amounts of time and money in continued performance of the work and acceptance of said performance. SIXTH AFFIRMATIVE DEFENSE Any claims asserted in the Counterclaim based upon fraud are not stated with particularity and, accordingly, are fatally defective under Rule 9(b) of the Federal Rules of Civil Procedure. SEVENTH AFFIRMATIVE DEFENSE 77a Reply to Counterclaim In the event that and to the extent that the claims asserted in the Complaint are barred by the statute of limitations, the claims asserted in the Counterclaim are likewise barred. EIGHTH AFFIRMATIVE DEFENSE The claims asserted in the Counterclaim are barred by the doctrine of laches. WHEREFORE, plaintiff, Curtiss-Wright Corporation, in addition to the demands set forth in its Complaint in this action, demands: A. That the Counterclaim be dismissed with prejudice. B. That costs and attorneys fees be awarded to plaintiff. C. That the Court grant to plaintiff such other further and additional relief as may be just and proper. CRUMMY, DEL DEO, DOLAN & PURCELL Attorneys for Plaintiff s/ Ralph N. Del Deo Ralph N. Del Deo 78a AMENDMENT TO AND SUPPLEMENTAL COMPLAINT, FILED NOVEMBER 18, 1976 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY (Judge Coolahan) Civil Action No. 76-794 [TITLE OMITTED] Plaintiff, for its Amendment To And Supplemental Complaint alleges as follows: SEVENTEENTH COUNT 125. Plaintiff repeats and realleges all of the allegations contained in paragraphs | through 7 of the Complaint in this action as if set forth at length herein. 126. From on or about early in 1968 through 1972, on various occasions, plaintiff and defendant entered into a series of 21 contracts pursuant to which plaintiff entered into the business of manufacturing nuclear components and performing related work for the defendant, for the aggregate sum of Two Hundred Fourteen Million Six Hundred Thousand Dollars ($214°6007000.00), which defendant agreed to pay plaintiff. 127. To date, plaintiff has performed all of the terms and conditions of those contracts designated as Purchase Order Nos. B-382, B-384, B-410, B412 and B-425 on its part to be performed. 128. The balance due on account of the price stipulated in said Purchase Orders, after crediting all progress payments made, is Three Million Six Hundred Seventy-Three Thousand Five Hundred Eighty-Four Dollars ($3,673,584.00) over and ez- 79a Amendment to and Supplemental Complaint above such unliquidated additional amounts as may be found to be due plaintiff thereon under the foregoing Counts of the Complaint in this action. 129. Defendant has not paid said sum of Three Million Six Hundred Seventy-Three Thousand Five Hundred Eighty-Four Dollars ($3,673,584.00) to plaintiff or any part thereof, although demand therefor has been made. WHEREFORE, plaintiff demands judgment against defendant on this Count for the sum of $3,673,584.00, interest, and costs. EIGHTEENTH COUNT 130. Plaintiff repeats and realleges all of the allegations contained in paragraphs | through 7 of the Complaint in this action as if set forth at lengt! herein. 131. From on or about early in 1968 through 1972, on various occasions, plaintiff and defendant entered into a series of 21 contracts pursuant to which plaintiff entered into the business of manufacturing nuclear components and performing related work for the defendant, for the aggregate sum of Two Hundred Fourteen Million Six Hundred Thousand Dollars ($214,600.00) which defendant agreed to pay plaintiff. 132. To date, plaintiff has performed all the terms and conditions of those contracts designated as Purchase Order Nos. A-550, A-595, A-642, B-423, B-429, B-433 and B-442 on its part to be performed. 133. The balance due on account of the price stipulated in said Purchase Orders, after crediting all progress payments made, if Four Million Seven Hundred Four Thousand Nine 80a Amendment to and Supplemental Complaint Hundred Fifty Two Dollars ($4,704,952.00) over and above such unliquidated additional amounts as may be found to be due plaintiff thereon under the foregoing Counts of the Complaint in this action. 134. Defendant has not paid said sum of Four Million Seven Hundred Four Thousand Nine Hundred Fifty Two Dollars ($4,704,952.00) to plaintiff or any part thereof although demand therefor has been made. WHEREFORE, plaintiff demands judgment against defendant on this Count for the sum of $4,704,952.00, interest, and costs. CRUMMY, DEL DEO, DOLAN & PURCELL Attorneys for Plaintiff s/ Ralph N. Del Deo Ralph N. Del Deo 8la ANSWER TO AMENDMENT TO AND SUPPLEMENTAL COMPLAINT AND COUNTERCLAIM, FILED DECEMBER 8, 1976 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Civil Action No. 76-794 [TITLE OMITTED} ANSWER TO AMENDMENT TO AND SUPPLEMENTAL COMPLAINT; AND COUNTERCLAIM OF DEFENDANT GENERAL ELECTRIC COMPANY Defendant General Electric Company Answers the Amendment to and Supplemental Complaint of Plaintiff Curtiss-Wright Corporation, as follows: 1-124. Defendant admits and denies the allegations of Paragraphs | through 124, inclusive, of Plaintiffs Complaint in the manner set forth in Paragraphs | through 124, inclusive, of Defendant’s Answer. SEVENTEENTH COUNT 125. Defendant admits and denies the allegations of Paragraph 125 of the Complaint in the manner sef forth in Paragraphs | through 7, inclusive, of this Answer.” 126. Defendant admits that, during the period specified, Plaintiff and Defendant entered into 21 contracts relating to the manufacture and sale of certain nuclear components for the Navy Nuclear Program. Defendant avers that, although the aggregate price of said contracts, which were designated as purchase orders, is approximately as alleged in the Complaint, in view of change orders and other adjustments the exact total is subject to qualification and interpretation. Defendant denies the remaining allegations of Paragraph 126. Lessee 82a Answer to Amendment to and Supplemental Complaint 127. Defendant admits that Plaintiff has delivered the hardware required by the contracts. Defendant denies the remaining allegations of Paragraph 127. 128. Defendant admits that $3,673,584.00 is the amount representing the redeterminable price, less progress and liquidation payments, under the listed purchase orders. Defendant denies that that amount is a “balance due” to which Plaintiff is entitled. Defendant denies the remaining allegations of Paragraph 128. 129. Admitted. EIGHTEENTH COUNT 130. Defendant admits and denies the allegations of Paragraph 130 of the Complaint in the manner set forth in Paragraphs | through 7, inclusive, of this Answer. 131. Defendant admits that, during the period specified, Plaintiff and Defendant entered into 21 contracts relating to the manufacture and sale of certain nuclear components for the Navy Nuclear Program. Defendant avers that, although the aggregate price of said contracts, which were designated as purchase orders, is approximately as alleged in the Complaint, in view of change orders and other adjustments the exact total is subject to qualification and interpretation. Defendant denies the remaining allegations of Paragraph 131. 132. Defendant admits that Plaintiff has delivered the hardware required by the contracts. Defendant denies the remaining allegations of Paragraph 132. i33. Demied. 134. Admitted. | al 83a Answer to Amendment to and Supplemental Complaint DEFENSES Defendant reasserts and incorporates by reference herein its First through Seventeenth Defenses, inclusive, set forth in Defendant’s Answer. EIGHTEENTH DEFENSE Plamtiffs claim for final payments under Counts 17 and i8 of the Amendment to and Supplemental Complaint are barred by its anticipatory breach of, failure to meet the condition precedent in, and refusal to abide by, Paragraph Sc. of the Terms and Conditions of Purchase applicable to each of the purchase orders. NINETEENTH DEFENSE Plaintiffs claims for final payments under Counts 17 and 18 of the Amendment to and Supplemental Complaint are barred by its refusal to enter into an unconditional amendment for redetermination to the purchase orders as required by each of the purchase orders. WHEREFORE, Defendant General Electric Company demands that the Complaint and the Amendment to and Supplemental Complaint be dismissed with prejudice; that costs and its attorneys’ fees be awarded to Defendant; and that the Court grant to Defendant such other, further and additional relief as may be just and proper. COUNTERCLAIM 1-33. Defendant repeats and realleges the allegations of Paragraphs 1-33, inclusive, of its Counterclaim as if ‘fully set forth herein. 84a Answer to Amendment to and Supplemental Complaint WHEREFORE, Defendant demands as relief from Plaintiff the following damages: 1. The damages and additional costs incurred as a result of the action and inactions of Plaintiff complained of in this Counterclaim. 2. The value of the benefits and avoidance of losses conferred upon Plaintiff through Defendant's efforts alleged in Paragraph 32 and 33 of this Counterclaim. 3. Defendant’s costs, disbursements and attorneys’ fees of this litigation. 4. Such other, further and additional relief as to this Court may seem just and proper. COLE AND GRONER, P.C. s/ Alan Y. Cole ALAN Y. COLE WALTER H. FLEISCHER ALFRED F. BELCUORE 1730 K Street, N.W. Washington, D.C. 20006 HANNOCH, WEISMAN, STERN & BESSER s/ Albert G. Besser ALBERT G. BESSER 744 Broad Street Newark, New Jersey 07102 Attorneys for Defendant-Counter-Claimant General Electric Company 85a Answer to Amendment to and Supplemental Complaint Of Counsel: ROLAND C. RADICE, ESQ. MICHAEL A. LAMANNA, ESQ. General Electric Company One River Road Schenectady, New York 12345 86a ADDITIONAL REPLY TO COUNTERCLAIM, FILED DECEMBER 27, 1976 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY (Judge Coolahan) Civil Action No. 76-794 [TITLE OMITTED] Whereas defendant, General Electric Company, has repeated and realleged the allegations of Paragraphs 1-33, inclusive, of its Counterclaim in response to the Amendment To And Supplemental Complaint in this action, plaintiff, Curtiss- Wright Corporation, herein replies to said paragraphs as follows: 1-33. Plaintiff repeats and realleges its responses to paragraphs 1-33 of the Counterclaim as if set forth at length herein. AFFIRMATIVE DEFENSES Plaintiff reasserts its First through Eighth Affirmative Defenses to the Counterclaim as if set forth at length herein. WHEREFORE, plaintiff, Curtiss-Wright Corporation, in addition to the demands set forth in the Amendment To And Supplemental Complaint in this action, demands: A. That the Counterclaim be dismissed with prejudice. B. That costs and attorneys fees be awarded to plaintiff. 87a Additional Reply to Counterclaim That the Court grant to plaintiff such other further and additional relief as may be just and proper. CRUMMY, DEL DEO, DOLAN & PURCELL s/ Ralph N. Del Deo Ralph N. Del Deo AFFIDAVIT OF JAMES H. SULLIVAN, FILED MAY 3, 1977, WITH ATTACHMENTS UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Civil Action No. 76-794 [TITLE OMITTED] STATE OF NEW JERSEY Ss COUNTY OF BERGEN JAMES H. SULLIVAN, being duly sworn according to law, upon his oath, does depose and say: 1. Since April of 1973, I have been employed as Director of Administration — Nuclear Facility by Curtiss-Wright Corporation, plaintiff in the above captioned matter (hereinafter “Curtiss-Wright”), and I am personally familiar with the matters set forth herein. 2. The records of Curtiss-Wright reflect that between May 1, 1968 and September 30, 1970, Curtiss-Wright entered into 21 subcontracts with General Electric Company, defendant, in the above captioned matter (hereinafter “General Electric”), pursuant to which Curtiss-Wright agreed to supply a total of 167 large components for use in nuclear propulsion systems of naval vessels. These 21 contracts are designated as Purchase Orders Nos. A-550, A-595, A-641, A-642, A-656, A-661, B-382, B-423, B-428, B-412, B-433, B-442, B-384, B-425, B-429, B-410, A-675, A-113, B-451, B-452, and B-478 (hereinafter “the 21 Purchase Orders”). Each Purchase Order is subject to the “Terms and Conditions of Purchase”, attached hereto as EXHIBIT “D”. 89a Affidavit of James H. Sullivan 3. Curtiss-Wright has made delivery of each of the large components called for by the 12 subcontracts designated as Purchase Orders Nos. A-642, B-412, B-384, B-382, B-423, B-433, A-550, B-425, B-410, B-442, B-595 and B-429 (hereinafter “the 12 Purchase Orders”). 4. On October 17, 1975, Curtiss-Wright submitted to General Electric the final invoices for Purchase Order Nos. B- 382, B-384, B-412 and B-425, and on November 3, 1975, Curtiss- Wright submitted its final invoice for Purchase Order No. B-410. Each of these invoices was accompanied by a cover letter, a sample of which is attached to this Affidavit as EXHIBIT “B”. 5. On December 29, 1975, General Electric returned said invoices to Curtiss-Wright without payment. 6. Subsequently Curtiss-Wright submitted to General Electric the final invoices for Purchase Order Nos. A-642, B-423, B-433, A-550, B-442, A-595 and B-429, and resubmitted the invoices for those Purchase Orders designated in Paragraph 4, supra. Each of these invoices was accompanied by a qualified release, a sample of which has been attached to this Affidavit as EXHIBIT “C”. 7. As of this da [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0596%3A2. Public record. Not legal advice.