IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 

MLEA, INC., : 

 : CIVIL ACTION 

 Plaintiff, : 

 : 

 v. : No. 02-CV-4393 

 : 

ATLANTIC RECYCLED RUBBER : 

INC., RECOVERY TECHNOLOGIES : 

GROUP INC., AND CASELLA : 

WASTE SYSTEMS, INC. : 

 : 

 Defendants. :

PRETRIAL MEMORANDUM OF 

DEFENDANT CASELLA WASTE SYSTEMS, INC.

Defendant Casella Waste Systems, Inc. ("Casella"), by and through its undersigned 

counsel, and pursuant to the Court's Orders of January 22, 2004 and October 26, 2002, 

respectfully submits this Pretrial Memorandum. 

I. Nature of the Action and Basis for Jurisdiction

Plaintiff MLEA, Inc., as successor in interest to Engineered Gas Systems, LLP and Main 

Line Engineering Associates, instituted this action against Atlantic Recycled Rubber, Inc. 

("ARR"), Recovery Technologies Group, Inc. ("RTG"), and Casella alleging that the defendants 

failed to pay for certain equipment and "design/specifications/drawings" and "process 

design/specifications" (collectively, "engineering plans") with an alleged value of approximately 

$1.6 million. MLEA seeks monetary damages, and intends to amend its Complaint to seek a 

declaratory judgment pursuant to 28 U.S.C. § 2201 that the defendants are obligated to pay for 

items of equipment that MLEA recklessly ordered in January and February 2001. 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 1 of 53
2

MLEA's sole allegation against Casella for liability in this action is that "[o]n information 

and belief, at all times relevant hereto, Defendants Atlantic [ARR] and Recovery Technologies 

were acting on behalf of Casella." 

Casella agrees with MLEA's statement regarding jurisdiction of this Court. 

II. Counter–Statement of Facts

A. RTG's And ARR's Business

 Defendant RTG provides tire-recycling services throughout North America, through a 

network of collection, transfer and manufacturing subsidiaries and facilities. Defendant ARR is 

one of these subsidiaries.1

 RTG collects used/scrap rubber tires, transfers them to one of its 

recycling sites and manufactures crumb rubber and other rubber-derived products from the tires. 

 RTG and its subsidiaries utilize a patented and unique commercial process to recycle the 

used tires. First, the scrapped tires are transported to RTG processing facilities. At these 

locations, the scrap tires are shredded into much smaller pieces, and then frozen in liquid 

nitrogen cryogenic chambers, and finally, the frozen rubber pieces are "hammered" into 

"crumbs" of various sizes. The crumb rubber is then sold to manufacturers for use in the 

fabrication of a number of different items, i.e., playground and running track surfaces, shoe 

soles, carpet underlay and tires. 

B. RTG-Casella Relationship

Casella is a regional solid waste services company that provides collection, transfer, 

disposal and recycling services to residential, industrial and commercial customers, primarily in 

the eastern United States. 

 

1

 ARR is a corporate entity formed under the laws of Nova Scotia, Canada. ARR is a wholly–owned subsidiary of 

Recovery Technologies Canada, Inc. ("RTI – Canada"). RTI – Canada is not a party to this lawsuit. 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 2 of 53
3

 In December 1999, Casella acquired KTI, Inc., as well as certain of KTI's subsidiaries, 

including various tire recycling assets and commercial recycling facilities (including ARR). 

RTG was formed by Casella in July 2000 to consolidate these newly acquired tire-recycling 

assets (formerly of KTI). RTG and its subsidiaries (including ARR) focused on the collection, 

processing, and recycling of scrap tires into rubber-derived products, and operated as separate 

and independent companies during the brief time they were Casella subsidiaries.2 

C. Factual Background

 In the summer of 2000, ARR began to transform its traditional tire-recycling operation in 

Truro, Nova Scotia, Canada into a cryogenic facility using RTG's technology (the "Truro 

facility"). However, to utilize the cryogenic procedure, ARR was required to purchase and ship 

liquid nitrogen for the Truro facility from a gas company in Maine. The shipment of liquid 

nitrogen to Truro was cost-prohibitive, and ARR began to investigate more cost-efficient 

methods to supply liquid nitrogen for the Truro facility. One option was to have a plant built onsite that would produce liquid nitrogen for use in the Truro facility. 

 Messer Advanced Gas Systems, Inc. ("Messer") (predecessor to plaintiff MLEA, Inc.),3

through its consultant and salesman, George Timberlake, submitted a written offer to construct 

such a plant in August 2000. Messer submitted a revised offer on September 13, 2000. 

Realizing the extreme importance of third-party financing to this project, the offer letter from 

Mr. Timberlake stated, falsely, that a lease had already been "arranged . . . through National 

Fleet Leasing, . . .." Messer, EGS or MLEA never obtained that lease financing. 

 

2

 In August 2001, Casella sold 80.1% of its interest in RTG and its affiliates, including ARR, to Crumb Rubber 

Investors Co., LLC as part of Casella's divestiture of its tire recycling business. 3

 As will be described more fully below, in January 2001, Messer AGS (now Generon IGS, Inc.) assigned the Truro 

project to Engineered Gas Systems ("EGS"), a subsidiary of MLEA, Inc. 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 3 of 53
4

RTI – Canada responded to the September 2000 offer, and stated that "this purchase is 

contingent on the completion of a leasing agreement and acceptance by Canadian and Local 

authorities." (emphasis added). All three of the MLEA employees who have been deposed in 

this matter have testified that the turnkey contract was contingent on obtaining a lease 

agreement. 

 RTG stated on several occasions during these early negotiations that it did not wish to 

own or manage any plant built for its Truro facility. Rather, ARR would consent to having a 

plant built on-site, but operated by an outside vendor. Nor did ARR wish to finance the 

construction of the plant with its own money. As such, Messer, primarily through Mr. 

Timberlake, allegedly began to arrange for a lease with a Pittsburgh company, National Fleet 

Leasing ("National Fleet"). Although Mr. Timberlake stated to ARR in correspondence that he 

had arranged for a lease through National Fleet, Mr. Timberlake testified during his deposition 

that he had never placed a lease or arranged for a lease with National Fleet. 

 Although the parties exchanged draft contracts in September and October 2000, no 

agreement was ever executed by any defendant. In October 2000, due to the unsuccessful 

negotiations with Messer, RTI – Canada circulated a Request for Proposal ("RFP") to a number 

of gas and energy companies requesting bids for the supply of liquid nitrogen to the Truro 

facility. 

 RTI – Canada received at least three responses to the RFP, but ARR continued to 

negotiate with Messer. However, several major stumbling blocks prevented the parties from 

reaching agreement, including the size of the plant, Messer's insistence that ARR purchase the 

plant after construction, and Messer's inability to obtain suitable lease financing. Indeed, on 

November 20, 2000, George Timberlake admitted, for the first time, that Messer was having a 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 4 of 53
5

"great deal of trouble" with the lease. Messer then requested that RTG purchase certain "long 

lead and critical use items" so that the suggested timetable for construction would be protected. 

 On December 1, 2000, upon Messer's request, ARR issued Purchase Order No. 715258 to 

Messer for three items: a cryogenic storage vessel, a feed breaker, and a transformer. The letter 

from ARR accompanying the purchase order contained three conditions: (1) that the equipment 

would be returned to Messer if the lease was not obtained; (2) that the payment of the purchase 

order would be from the proceeds of the lease; and (3) the items identified in the purchase order 

would be repurchased by Messer when the lease was approved. At this time, Mr. Timberlake 

fully understood that ARR was the customer, and the entity with which he was transacting 

business. 

 Similarly, on December 12, 2000, based on certain representations made by Mr. 

Timberlake in a December 11, 2000 letter, ARR issued two more purchase orders (nos. 715260 

and 715261) (the "second purchase orders") in the amount of $298,00 to fund down payments on 

certain other equipment necessary for construction of the plant. Again, the letter accompanying 

these purchase orders made clear that the equipment would be returned to Messer for full credit 

if the lease did not proceed and that the items identified in the purchase orders would be 

repurchased by Messer when the lease was approved. Mr. Timberlake never proposed, and ARR 

never agreed to pay, any amounts over and above the $298,000 that Mr. Timberlake proposed to 

ARR. 

 Similarly, as described more fully in Casella's Motion for Summary Judgment, MLEA 

never requested or proposed at any time that ARR pay for engineering drawings and design 

specifications allegedly required for the ordering of the equipment in any of the abovereferenced purchase orders. 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 5 of 53
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 In January 2001, Messer assigned control and responsibility for the Truro project to 

EGS.4 As part of the transfer of the Truro project, EGS hired a number of former Messer 

employees who had been working on the project for Messer, including Mr. Menendez. Mr. 

Timberlake, who served as a consultant for Messer, also joined EGS. 

 In or around late February 2001, RTG requested that Rick Kelley, a Casella employee, 

assist ARR with the negotiations relating to the Truro project because he had experience with gas 

and energy companies. Until this time, representatives of ARR alone had negotiated with EGS 

and had acted without Casella's supervision or direction. By the time Mr. Kelley became 

involved, EGS had already issued purchase orders to vendors for the equipment for which it is 

now seeking damages. 

 In his first correspondence to Mr. Kelley regarding the Truro project, Mr. Timberlake 

admitted that EGS's "first problem . . . is that we do not have an order for the plant in Nova 

Scotia." (emphasis added). Mr. Timberlake also admitted that EGS had not even applied for the 

necessary lease yet, and that EGS was "way over-committed." (emphasis added). 

Over the next several months, EGS repeatedly requested that ARR issue a purchase order 

for the entire plant, and continued to attempt to negotiate a contract with ARR. However, the 

parties did not reach an agreement on many of the essential terms, such as the size of the plant 

and the warranties. For example, EGS continued to propose a 30-ton capacity plant, even 

though representatives of ARR had repeatedly stated that it only needed a plant with a 15-ton 

capacity. A 30-ton plant would have required ARR to purchase liquid nitrogen at a higher per 

pound price than a 15-ton plant and would have required ARR to sell the excess liquid nitrogen. 

 

4

 EGS was formed in January 2001 as a subsidiary of Main Line Engineering Associates of Exton, Pennsylvania 

("Main Line Engineering") to assume responsibility for the Truro project. Messer was disbanding the division of its 

company handling the Truro project, and EGS was formed by a number of former Messer employees. MLEA, Inc. 

was incorporated as the parent company of both EGS and Main Line Engineering in January 2002. EGS and Main 

Line Engineering are now divisions of MLEA. 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 6 of 53
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ARR consistently told EGS that it was not in the "gas-selling business," and wanted no part of a 

plant that would force it to sell liquid nitrogen. Although the parties never reached agreement, 

EGS continued to order equipment and perform engineering and design work without ARR's, 

RTG's or Casella's knowledge.

 RTI – Canada paid EGS $100,750.00 on March 9, 2001 as payment for EGS's January 

25, 2001 invoice for $100,750.00. This invoice, which was directed to ARR, corresponded to 

the down payments for the feed breaker and transformer, and the purchase price and installation 

of the storage tank from the first purchase order (PO No. 715258). Although ARR received the 

storage tank, it never received the transformer or feed breaker. 

 In April 2001, MLEA admitted that "[t]here never was a written contract or signed 

purchase order for the entire facility between Messer or Generon and ARR" in a letter to MG 

Generon, one of its vendors. EGS further admitted that "[s]ince January [2001], we have 

finished the facility design and have ordered essentially all the equipment in spite of the fact that 

we have yet to obtain a written contract or signed PO for the facility, and have been paid on only 

the smaller of the two initial POs." (emphasis added). Mr. DelGaizo also admitted that the 

"[Truro] project . . . has collapsed." 

 During the spring and summer of 2001, EGS continued to send ARR drafts contracts. On 

at least one occasion, in April 2001, EGS forwarded an executed copy of a proposed contract to 

RTG. None of these proposals was ever agreed to or signed by RTG or ARR. Nor was any 

proposal ever directed to Casella. 

 In August 2001, Casella sold 80.1 % of its interest in RTG in August 2001. It retains a 

19.1% interest in a holding company that is an indirect subsidiary of Casella. Although 

negotiations between ARR, RTG and MLEA continued until April 2002, Casella had no role in 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 7 of 53
8

the Truro project until this lawsuit was filed. For example, MLEA delivered an incomplete set of 

the engineering plans and design specifications to ARR in September and October 2001. 

Although these plans have never even been used by ARR, MLEA seeks to recover the alleged 

value of the plans and drawings from Casella. 

III. Damages

 According to its Pretrial Memorandum, MLEA is seeking to recover several categories of 

damages in this case. Casella denies liability for any alleged damages. Moreover, at least five of 

these categories of damages are not recoverable. 

First, MLEA seeks to recover more than $650,000 for the equipment it imprudently 

ordered in 2001. However, MLEA admits that it has not had to pay, or make restitution, for 

many of the amounts that make up this sum. By way of example, MLEA has been sued by three 

of its vendors. It has settled with two of these vendors, and lost a trial on the third vendor's 

claim. In addition, according to discovery in this case, MLEA has arranged written "agreements" 

with two other vendors wherein MLEA pays a set amount per month to the respective vendor. 

Several other vendors have not yet pursued MLEA for the money allegedly owed them. In fact, 

during their depositions, both Mr. DelGaizo and Mr. Menendez testified that several vendors 

have not contacted them in several months regarding the equipment at issue. If the factfinder 

were to award MLEA the amount of damages it seeks, MLEA would be enriched beyond the 

status quo. MLEA is not entitled, and should not be permitted, to recover a windfall.5

 

Second, MLEA's calculation of damages includes $389,274.00 for "MG Generon 

development." See Exhibit "B" to Plaintiff's Pretrial Memorandum. Plaintiff's counsel, at the 

 

5

 Additionally, MLEA is claiming that defendants are liable for certain equipment worth approximately $15,000 that 

MLEA purchased from AMSCO Sales Corp., but was never included on the purchase orders. MLEA ordered this 

equipment from AMSCO without ARR's knowledge, and this item was not included on the ARR purchase orders. 

Evidence of this amount should be barred at trial. 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 8 of 53
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January 21, 2004, status conference before the Court, stated that this unrelated fee was not an 

amount that MLEA could or would seek. Nor was this fee ever disclosed in discovery as part of 

MLEA's damages claim. This fee is unrelated to this case. MLEA cannot recover damages that 

have no causal connection to the defendants' alleged actions. 

Third, MLEA is claiming it is due certain "mitigation" damages. See Exhibit "C" to 

Plaintiff's Pretrial Memorandum. MLEA is belatedly seeking damages for this category of 

damages. In May 2003, Casella served discovery requests seeking information regarding 

MLEA's efforts to mitigate its damages. MLEA's response was sparse, to say the least, and 

primarily addressed MLEA's efforts to resolve the potential lawsuit with ARR. MLEA's 

response neither included, nor even referenced, the facts it now, for the first time, provides in its 

Pretrial Memorandum. Further, during depositions, MLEA's witnesses could not provide the 

explicit information regarding mitigation that is being claimed now. In fact, Mr. Timberlake 

testified that he had had no contact with the vendors, yet MLEA is claiming that he spent more 

than 920 hours over the past three years attempting to "mitigate" MLEA's damages. Further, 

MLEA's mitigation calculation is entirely based on an hourly rate basis. Defendants have had no 

chance to challenge, or even take discovery on, any of these figures. As such, the Court should 

not permit MLEA's eleventh–hour attempt to insert this "surprise" category of damages into the 

case. Discovery is closed. 

Additionally, MLEA does not cite any statute or case that permits a party to recover its 

own "mitigation costs" as consequential damages. Instead, plaintiff cites two Pennsylvania 

statues that generally discuss damages under the Uniform Commercial Code. Neither stands for 

the proposition that MLEA may recover the inflated sums it allegedly spent trying to mitigate its 

damages. 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 9 of 53
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Similarly, MLEA now seeks certain damages for "in-house legal expenses." However, it 

provides no back up or supporting documentation for this figure. Like its newly raised claim for 

mitigation damages and the MLEA-Generon project development fee, MLEA never raised inhouse legal fees as a potential damages figure before last week. In addition, MLEA never 

produced documents or supplemented its interrogatory answers to identify this category of 

damages. As such, this claim must also be stricken and any evidence of these "legal expenses" 

barred a trial. 

 Finally, MLEA claims that it is entitled to prejudgment interest. However, in 

Pennsylvania, a plaintiff is not entitled as of right to prejudgment interest for unliquidated 

damages. Traditionally, Pennsylvania federal and state courts find that prejudgment interest as 

of right exists only when the defendant breaches a contract to pay a definite or liquidated sum of 

money, or an amount ascertainable by mathematical calculation. Montgomery County v. 

Microvote Corp., No. CIV. A. 97-6331, 2001 WL 722485, at *5 (E.D. Pa. June 25, 2001) (R. 

Kelly, J.). Recovery of prejudgment interest relating to an unliquidated debt is only available at 

the Court’s discretion. Id. Thus, in order for MLEA to recover prejudgment interest, it must 

demonstrate that the damages were liquidated; that is, either stated in the contract, or 

ascertainable by application of a formula stated in the contract. However, MLEA cannot do this. 

For example, MLEA claims it is due interest for the settlements or informal "agreements" it has 

reached with several of its vendors. These figures, while definite now, are based on negotiation 

and compromise between MLEA and the respective vendor. Defendants had no role in selecting 

or establishing these amounts. Nor are these amounts in any way reflected in the only alleged 

contracts at issue here – the purchase orders between ARR and MLEA. 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 10 of 53
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IV. Casella's Witness List

Casella intends to call the following witnesses at trial: 

1. James Bohlig 

 Casella Waste Systems, Inc. 

 Rutland, VT 

6. Roderick Alewijnse (as on cross-examination) 

 MLEA, Inc. 

 211Welsh Pool Road 

 Exton, PA 

2. Rick Kelley 

 Recovery Technologies Group Inc. 

 7000 Boulevard East 

 Guttenberg, NJ 07093 

7. Barry Smith (as on cross-examination) 

 Kennett Square, PA 

3. Robert Wetzel, Esq. 

 Recovery Technologies Group Inc. 

 7000 Boulevard East 

 Guttenberg, NJ 07093 

8. John M. Riordan 

 65 Fox Hill Lane 

 Saco, Maine 04072 

4. Martin Sergi 

 Recovery Technologies Group Inc. 

 7000 Boulevard East 

 Guttenberg, NJ 07093 

9. G.W. Meckert 

 40 E. 20th Street, Apt. 7E 

 NY, NY 10009-8208 

5. Alan Cohen 

 804 Cypress Blvd. 

 Pompano Beach, FL 33069 

10. James R. Anderson 

 Recovery Technologies (Canada), Inc. 

 1225 Franklin Blvd. 

 Cambridge, Ontario, Canada 

 

Casella reserves the right to call witnesses designated or offered by MLEA, ARR or 

RTG, and also reserves the right to call witnesses not named above to rebut evidence offered by 

MLEA, ARR or RTG. 

Casella will offer testimony by way of deposition testimony for the following individuals. 

Pursuant to the Court's Pretrial and Trial Procedures, Casella will provide written designations to 

all counsel and the court at the appropriate time. 

1. George Timberlake 

2. Theodore DelGaizo 

3. Manuel Menendez 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 11 of 53
12

V. List of Exhibits

A schedule of exhibits is attached as Exhibit "A." 

Casella reserves the right to offer in evidence the exhibits listed in Plaintiff's Pretrial 

Memorandum, or offered or marked by MLEA. Casella also reserves the same rights as to those 

exhibits identified by co-defendants ARR and RTG. Casella also reserves the right to offer in 

evidence documents not listed above that are used for impeachment purposes or on rebuttal. 

VI. Legal Issues

Casella's Motion for Summary Judgment or, in the alternative, for Partial Summary 

Judgment is pending. Casella moved for summary judgment based on MLEA's inability to 

"pierce the corporate veil" of three separate corporate entities to reach Casella. Alternatively, 

Casella moved for partial summary judgment on plaintiff's claim for damages as to the value of 

certain engineering plans and limit plaintiff's remaining claims for damages to the amounts listed 

in the three purchase orders at issue for the equipment allegedly ordered. 

Casella has also joined in the Motion of Defendant Atlantic Recycled Rubber, Inc. 

("ARR") for Summary Judgment. Casella agrees with the arguments of ARR that the second 

two ARR purchase orders that form the basis for MLEA's claims in this case were procured by 

fraud and therefore should be declared void ab initio, and that MLEA's claims for promissory 

estoppel and unjust enrichment must fail because MLEA's claims arise from an express contract 

between the parties. 

Casella intends to file motions in limine to bar any evidence and testimony MLEA 

intends to present as to damages for losses it has not yet suffered, any evidence and testimony 

relating to MLEA's alleged mitigation damages, and any evidence or testimony relating to 

MLEA's efforts to recover for the project development fee. 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 12 of 53
13

The final issue is a choice of law issue. Depending on the outcome of defendants' various 

summary judgment motions, a conflict of laws issue may arise. 

VII. Points for Charge

Defendant Casella's proposed points for charge are attached as Exhibit "B." Casella 

reserves the right to supplement and/or modify these proposed points for charge dependent upon 

the outcome of the pending motions for summary judgment, as well as any motions in limine. 

VIII. Estimated Trial Time

Casella estimates it will take 1 1/2 to 2 days to present its defense. 

 Respectfully submitted, 

___________________________ 

 Antoinette R. Stone, I.D. No. 23464 

 Brian J. McCormick, Jr., I.D. No. 81437 

 BUCHANAN INGERSOLL PC 

 1835 Market Street, 14th Floor 

 Philadelphia, PA 19103 

 (215) 665-8700 

 (215) 665-8760 (fax) 

Dated: February 18, 2004 

 Attorneys for Defendant Casella Waste 

 Systems Inc. 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 13 of 53
EXHIBIT "A"

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 14 of 53
2

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 

MLEA, INC., : 

 : CIVIL ACTION 

 Plaintiff, : 

 : 

 v. : No. 02-CV-4393 

 : 

ATLANTIC RECYCLED RUBBER : 

INC., RECOVERY TECHNOLOGIES : 

GROUP INC., AND CASELLA : 

WASTE SYSTEMS, INC. : 

 : 

 Defendants. :

DEFENDANT CASELLA WASTE SYSTEMS, INC.'S LIST OF EXHIBITS 

FOR PRETRIAL MEMORADNUM

TRIAL 

EXHIBIT 

NUMBER

EXHIBIT NAME

1. LINC-15U Construction Package (DelGaizo 1) 

2. LINC-15U Engineering Flowsheet, and attachments (DelGaizo 

2) 

3. LINC-30 CBO511 Cold Box (DelGaizo 3) 

4. Letter to James Anderson from George Timberlake, dated 

9/13/2000 (Timberlake 1, Kelley 2, Benison 2) 

MLEA2 

5. Letter to Messer AGS from James Anderson, dated 9/13/2000 

(Menendez 1, Sergi 1, Kelley 1, Benison 1) 

MLEA1 

6. Letter to G.W. Meckert from George Timberlake, dated 

12/11/2000 (Timberlake 2, Benison 3) 

MLEA38-

MLEA39 

7. Letter to Rick Kelley from George Timberlake, dated 2/27/2001 

(Timberlake 3, Kelley 7, Benison 13) 

MLEA66-

MLEA67 

8. Letter to George Timberlake from James Anderson, dated 

10/2/2000 (Timberlake 10) 

MLEA30 

9. Letter to G.W. Meckert from George Timberlake, dated 

10/26/2000 (Timberlake 12, Sergi 8) 

RTG51-

RTG52 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 15 of 53
3

10. Letter to G.W. Meckert from George Timberlake, dated 

11/20/2000 (Timberlake 14, Kelley 4) 

MLEA31 

11. Letter to Messer AGS from Bill Meckert, dated 12/6/2000 (Sergi 

4) 

MLEA35 

12. Letter to Bill Meckert from George Timberlake, dated 

11/21/2000 

RTG728 

13. Letter to George Timberlake from Steven Benison, dated 

12/1/2000 (Timberlake 16, Kelley 6, Benison 4) 

MLEA32 

14. Atlantic Recycled Rubber Purchase Order 715258, dated 

12/1/2000 (Timberlake 15, Menendez 3) 

MLEA64 

15. Letter to George Timberlake from Steven Benison, dated 

12/12/2000 (Benison 6) 

MLEA40 

16. Atlantic Recycled Rubber Purchase Order 715620 MLEA62 

17. Atlantic Recycled Rubber Purchase Order 715261 MLEA63 

18. Letter to Barry Smith from T.J. DelGaizo, et al., dated 1/15/2001 

(DelGaizo 4, Benison 7) 

MLEA58 

19. Letter to G.W. Meckert from T.J. DelGaizo, et al., dated 

1/19/2001 (DelGaizo 5, Sergi 10, Benison 10) 

MLEA65 

20. E-mail to Rick Kelley from George Timberlake with 

attachments, dated 3/12/2001 (Menendez 8, Kelley 8) 

MLEA68-

MLEA71 

21. E-mail to mtopola_prc@qlo.com, et al., from George 

Timberlake with attached contract, dated 3/21/2001 (Menendez 

9) 

RTG531-

RTG560 

22. Letter to Rick Kelley from George Timberlake, dated 4/6/2001 

(Timberlake 5) 

MLEA76-

MLEA79 

23. Letter to Rick Kelley from George Timberlake, dated 4/10/2001 CD-ROM130-

CD-ROM131 

24. Letter to Rick Kelley from George Timberlake, dated 4/10/2001 MLEA84-

MLEA87 

25. Letter to Rick Kelley from George Timberlake, dated 4/13/2001 

(Menendez 11) 

MLEA88-

MLEA90 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 16 of 53
4

26. Email to Marty Sergi from Rick Kelley, dated 4/13/01 RTG564 

27. Letter to Rick Kelley from Manny Menendez, dated 4/16/2001 MLEA91-

MLEA93 

28. Minutes of Meeting with Mary Sergi, dated 5/18/2001 

(Menendez 12) 

MLEA101 

29. Letter to Barry Smith from T.J. DelGaizo, dated 4/9/2001 

(DelGaizo 6) 

MLEA80-

MLEA81 

30. Memo to Barry Smith from Manny Menendez, dated 4/27/2001 

(Menendez 13) 

MLEA230-

MLEA231 

31. Minutes of Meeting with Ross Pirasteh, dated 10/9/2001 

(DelGaizo 8) 

CD-ROM561 

32. E-mail to T.J. DelGaizo from George Timberlake, dated 

10/11/2001 (DelGaizo 9) 

MLEA164 

33. Casella Waste System, Inc. Organizational Chart as of 

4/30/1999, 2000, 2001, 2002 (Bohlig 1) 

C653-C656 

34. Memo to Marty Sergi, et al., from John Riordan, dated 

3/23/2001 (Sergi 6, Kelley 10, Benison 15) 

C66-C70 

35. E-mail to Robert Wetzel from George Timberlake, dated 

9/17/2001 (Wetzel 4) 

MLEA152-

MLEA154 

36. Messer Invoice # 000236, dated 1/4/2001 C390 

37. Engineered Gas Systems LLP Invoice, dated 1/25/2001 (Benison 

11) 

C90 

38. Engineered Gas Systems LLP Invoice dated 1/30/2001 (Benison 

12) 

C92 

39. RTI-Canada Check #20450, for $110,750, dated 3/9/2001 C89 

40. E-mail to Marti Sergi, et al. from George Timberlake with 

attachment, dated 3/21/2001 (Timberlake 4) 

MLEA72-

MLEA75 

41. Letter to Greg Hepler from George Timberlake, dated 9/26/2001 

(Timberlake 7) 

CD-ROM804-

CD-ROM805 

42. Status of EGS POs for RTG Project (1/24/02) (Timberlake 9) RTG357 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 17 of 53
5

43. Gas Cost with an Operating Lease and a Capital Lease, dated 

10/7/2000 (Timberlake 11, Sergi 9) 

RTG1-RTG2 

44. Letter to G.W. Meckert from George Timberlake, dated 

11/17/2000 (Timberlake 13) 

RTG747-

RTG749 

45. Letter to Robert Wetzel from George Timberlake, dated 

12/20/2001 (Timberlake 18) 

RTG644 

46. Letter to Marty from unknown author, dated 8/2/2001 

(Timberlake 21) 

CD-ROM508 

47. E-mail to George Timberlake from Manny Menendez, dated 

4/9/2001 (Menendez 10) 

CD-ROM441-

CD-ROM442 

48. Promissory Note, dated 8/31/2001 (Wetzel 2) MLEA137-

MLEA138 

49. Security Agreement, dated 8/31/2001 (Wetzel 3) MLEA139-

MLEA148 

50. E-mail to Barry Smith from T.J. DelGaizo, dated 11/8/2001 

(DelGaizo 10) 

CD-ROM466 

51. List of Purchase Orders (Menendez 7) 

52. Fax to Bill Meckert from George Timberlake, dated 9/4/2001 RTG623-

RTG624 

53. E-mail to Marty Sergi from Manny Menendez, dated 10/1/2001 CD-ROM452 

54. Engineering Transmittal to Bill Meckert form Manny Menendez, 

dated 10/25/2001 

RTG593 

55. RTG/ARR Nitrogen Plant Time Line CD-ROM513-

CD-ROM515 

56. EGS Down Payments on RTG Nitrogen Generator Equipment CD-ROM503 

57. E-mail to "Chuck" (undated) CD-ROM526 

58. Truro Project Cancellation Fees – Major Equipment CD-ROM531 

59. Background Information - MLEA/EGS Truro NS Project CD-ROM517 

60. Addendum 1 to Contract EGS-CONT-01-10A CD-ROM563-

CD-ROM565 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 18 of 53
6

61. Addendum 1 to Contract EGS-CONT-01-10A CD-ROM567 

62. Addendum 1 to Contract EGS-CONT-01-10B CD-ROM568-

CD-ROM570 

63. Significant ARR Changes to 15-TPD Contact CD-ROM516 

64. EGS Comments on ARR's Contract Changes of 5/30/2001 CD-ROM68-

CD-ROM69 

65. LiNC-15 Payment Schedule CD-ROM683-

CD-ROM684 

66. Engineered Gas Systems Proposed Payment Schedule, dated 

3/12/2001 

CD-ROM127-

CD-ROM128 

67. Engineered Gas Systems Option 2 with a 10 year Lease, dated 

3/30/2001 

CD-ROM155-

CD-ROM160 

68. Draft letter to "Vendor" from Manny Menendez, dated 7/6/2001 CD-ROM711 

69. E-mail to George Timberlake from T.J. DelGaizo, dated 

9/17/2001 

CD-ROM756 

70. Letter to Accounts Payable, EGS from American Bureau of 

Collections, Inc., dated 11/6/2001 

CD-ROM786 

71. E-mail to George Timberlake from Dom Dionisio, PSB 

Industries, dated 11/27/2001 

CD-ROM474 

72. E-mail to Robert Wetzel from T.J. DelGaizo, dated 1/3/2002 CD-ROM419 

73. E-mail to George Timberlake from Paul Heston, dated 1/3/2002 CD-ROM421 

74. E-mail to Manny Menendez, et al., from T.J. DelGaizo, dated 

1/15/2002 

CD-ROM426 

75. Notes from 1/25/2002 Meeting CD-ROM557- 

CD-ROM558 

76. Minutes of Meeting with Marty Sergi on 1/31/2002 

77. E-mail to George Timberlake from Dan Pleis, dated 3/18/2002 CD-ROM2 

78. E-mail to Fred Vosburg, et al., from T.J. DelGaizo, dated 

4/4/2002 

CD-ROM7- 

CD-ROM8 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 19 of 53
7

79. E-mail to George Timberlake from Jeff Johnson, dated 9/6/2001 

80. E-mail to George Timberlake from Patti Galstad, dated 

9/20/2001 

81. E-mail to George Timberlake from Sandy Higgins, dated 

9/20/2001 

CD-ROM766- 

CD-ROM767 

82. Email to George Timberlake from James Carroll, dated 10/19/01 CD-ROM453- 

CD-ROM454 

83. Truro, Nova Scotia, Canada – 30 Ton Per Day Budget CD-ROM125- 

CD-ROM126 

84. Alternatives for RTG, dated 3/30/2001 CD-ROM16- 

CD-ROM26 

85. MG Generon Distributor Agreement, dated 1/18/2001 MLEA47-

MLEA57 

86. Letter to T.J. DelGaizo from Barry Smith, dated 12/10/2001 MLEA226-

MLEA227 

87. Letter to Manny Menendez from Paul Henson, dated 1/7/2002 MLEA216 

88. E-mail to Keith Michael, et al. from T. J. DelGaizo, dated 

6/29/2002 

CD-ROM12 

89. E-mail to Keith Michael from Paul Swofford, dated 2/2/2001 MLEA259-

MLEA261 

90. Letter to Manny Menendez from Shawna Rudersmith, dated 

2/15/2001 

RTG312-

RTG319 

91. E-mail to T.J. DelGaizo from Denny Thompson, dated 

9/19/2001 

CD-ROM759- 

CD-ROM 760 

92. Email to George Timberlake from Denny Thompson, dated 

9/20/01 

CD-ROM762- 

CD-ROM763 

93. E-mail to George Timberlake from T.J. DelGaizo, dated 

12/28/2001 

CD-ROM479- 

CD-ROM480 

94. E-mail to Fred Vosbury, et al. from T.J. DelGaizo, dated 

1/31/2002 

CD-ROM429 

95. E-mail to binderjt@erols. com from George Timberlake, dated 

5/23/2002 

CD-ROM11 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 20 of 53
8

5/23/2002 

96. E-mail to John Jensvold from Keith Michael, dated 7/17/2002 CD-ROM484 

97. MLEA Invoices List (undated) CD-ROM732- 

CD-ROM735 

98. E-mail to Evan Mongelard from George Timberlake, dated 

7/27/2000 

99. E-mail to Evan Mongelard from George Timberlake, dated 

10/13/2000 

100. E-mail to George Timberlake from E.J. Fleming, dated 

6/15/2001 

101. E-mail to George Timberlake from E.J. Fleming, dated 

1/25/2002 

102. Letter to T.J. DelGaizo from Barry Smith, dated 4/20/2001 MLEA232-

MLEA233 

103. Letter to Marty Sergi from T.J. DelGaizo, dated 6/12/2001, and 

attachment 

RTG57-

RTG75 

104. Vilter Materials RTG148- 

RTG172 

105. Cutler Hamer Materials RTG174-

RTG203 

106. AMSCO Materials RTG207-

RTG217 

107. Chart Materials RTG218-

RTG230 

108. PSB Materials RTG237-

RTG250 

109. ABB Materials RTG254-

RTG260 

110. ACD Materials RTG263-

RTG279 

111. Ingersoll-Rand Materials RTG280-

RTG299, 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 21 of 53
9

RTG339-

RTG356 

112. Hydro-Thrift Materials RTG300-

RTG321 

113. API Materials RTG322-

RTG327 

114. Generon Materials RTG328-

RTG338 

115. E-mail to Janet Benison from Marty Sergi, dated 5/30/2001 RTG514-

RTG515 

116. E-mail to Marty Sergi from Rick Kelley, dated 4/13/2001 RTG564 

117. Fax to Rick Kelley from Steve Benison, dated 3/26/2001 C78-C87 

118. Fax to Rick Kelley from Jim Petrie, dated 3/26/2001 C88-C94 

119. Letter to Rick Kelley from T.J. DelGaizo, dated 4/18/2001 C109 

120. Fax to Rick Kelley, et al. from John Riordan, dated 4/6/2001 C175-C177 

121. Main Line Engineering Associates Invoice # 10568, dated 

10/1/2001 

C409 

122. Main Line Engineering Associates Invoice # 10580, dated 

11/2/2001 

C408 

123. Memo to Manny Menendez from T.J. DelGaizo, dated 

1/25/2001 

C411-C412 

124. Engineered Gas Systems Terms and Conditions GEN8 

125. Current Bids for Generon/AGS Chart, dated 12/7/2000 GEN15-

GEN16 

126. Letter to Barry Smith from Manny Menendez, dated 1/2/2001 GEN31-

GEN32 

127. Letter to Barry Smith from Manny Menendez, dated 7/9/2001 GEN70 

128. E-mail to Manny Menendez, et al., from George Timberlake, 

dated 12/1/2000 

GEN101 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 22 of 53
10

129. E-mail to George Timberlake from Manny Menendez, dated 

11/20/2000 

GEN104 

130. E-mail to Jim Anderson from George Timberlake with 

attachment, dated 11/8/2000 

GEN145-

GEN165 

131. E-mail to Jim Anderson from George Timberlake with 

attachment, dated 11/8/2000 

GEN166-

GEN186 

132. E-mail to Roderik Alewijnse from George Timberlake, dated 

10/25/2000 

GEN238-

GEN239 

133. E-mail to Roderik Alewijnse from George Timberlake, dated 

8/29/2000 

GEN243 

134. E-mail to Roderik Alewijnse from George Timberlake, dated 

8/15/2000 

GEN283-

GEN286 

135. E-mail to Evan Mongelard from George Timberlake, dated 

8/2/2000 

GEN325-

GEN328 

136. Certificate of Incorporation of Casella Waste Systems, Inc., 

dated 3/1/1993 

C514-C517 

137. Amended and Restated Certificate of Incorporation of Casella 

Waste Systems, Inc., dated 12/22/1995 

C518-C533 

138. Second Amended and Restated Certificate of Incorporation of 

Casella Waste Systems, Inc., dated 11/3/1997 

C554-C574 

139. Certificate of Amendment to Second Amended and Restated 

Certificate of Incorporation of Casella Waste Systems, Inc., 

dated 10/27/1998 

C575-C576 

140. Consolidated Financial Statements – Recovery Technologies 

Group, Inc. (9/7/01 – 3/31/02) 

RTG806 – 

RTG826 

141. Certificate of Incorporation – Recovery Technologies (Canada) 

Inc. 

RTG827 – 

RTG837 

142. Organizational Resolutions of the Shareholder of Recovery 

Technologies (Canada) Inc. 

RTG855 – 

RTG860 

143. By-Law No. 1 for Recovery Technologies (Canada), Inc. RTG 838 – 

RTG 854 

Organizational Resolutions of the Shareholder of Recovery 

Technologies (Canada), Inc. 

RTG 00855 – 

RTG 00867

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 23 of 53
11

RTG 00867 

Recovery Technologies (Canada), Inc. Shareholders’ Ledger RTG 00868 – 

RTG 00871 

144. RTG Stock Certificates RTG872 – 

RTG874 

145. Certificate of Incorporation and Certificate of Amendment – 

Recovery Technologies Group, Inc. 

RTG875 – 

RTG888 

146. Unanimous Consent of the Directors of RTG dated January 28, 

2002 

RTG904 

147. Unanimous Consent of the Directors of RTG dated April 30, 

2002 (bates label 00906) 

RGG906 

148. Certificate of Resolution to Borrow RTG908 – 

RTG909, 

RTG911 – 

RTG912 

149. Unanimous Consent of the Directors of RTG dated July 17, 2002 RTG910 

150. RTI–Canada Unanimous Written Consent of Board of Directors 

in Lieu of Meeting, 7/1/01 

151. RTI–Canada Unanimous Written Consent of Sole Shareholder to 

Actions Taken in Lieu of Meeting, 7/1/01 

152. Resolutions of the Board of Directors of RTI–Canada, 4/30/01 

153. RTI–Canada Unanimous Written Consent of Directors to Action 

Taken in Lieu of a Special Meeting Thereof, 4/30/01 

154. RTI–Canada Unanimous Written Consent to Directors to Action 

Taken in Lieu of a Special Meeting Thereof, 4/30/01 

155. RTI–Canada Written Consent of Board of Directors to Actions 

Taken in Lieu of Annual Meeting Thereof, 3/30/01 

156. RTI–Canada Unanimous Written Consent of Sole Shareholder to 

Actions Taken in Lieu of Annual Meeting Thereof, 3/30/01 

157. KTI Recycling of Canda, Inc. ("KTI–Canada") Unanimous 

Written Consent of Directors to Actions Taken in Lieu of 

Annual Meeting Thereof, 3/30/00 

158. KTI–Canada Written Consent of Sole Shareholder to Actions 

Taken in Lieu of Annual Meeting Thereof, 3/30/00

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 24 of 53
12

Taken in Lieu of Annual Meeting Thereof, 3/30/00 

159. KTI–Canada Unanimous Written Consent of Directors to 

Actions Taken in Lieu of Annual Meeting Thereof, 8/30/99 

160. KTI–Canada Written Consent of Sole Shareholder to Actions 

Taken in Lieu of Annual Meeting Thereof, 8/30/99 

161. KTI–Canada Resolution of the Sole Shareholder, 9/29/98 

162. KTI–Canada Share Subscription, 9/29/98 

163. KTI–Canada Resolution of the Sole Director, 9/29/98 

164. Receipt, 9/29/98 

165. Resignation of Paolo Guida, 9/29/98 

166. KTI–Canada Resolutions of the Sole Shareholder, 9/29/98 

167. KTI–Canada Consent to Act as a Director and Declaration of 

Citizenship 

168. KTI–Canada Consent to Act as a Director, 9/29/98 

169. Resolution of the Board of Directors of KTI–Canada, 9/29/98 

170. Resolution of the Sole Shareholder of KTI–Canada, 9/29/98 

171. KTI–Canada Resolution of the Board of Directors, 9/29/98 

172. Unanimous Shareholder Agreement between KTI–Canada, KTI 

Recycling, Inc., Ross Pirasteh and Rupert H. Chartrand, 9/29/98 

173. Resolution of the Board of Directors of KTI–Canada, 11/19/98 

174. Resolution of the Board of Directors of KTI–Canada, 11/19/98 

175. Resignation of Rupert H. Chartrand, 11/20/98 

176. KTI–Canada Resolution of the Sole Shareholder, 11/20/98 

177. KTI–Canada Consent to Act as a Director and Declaration of 

Citizenship, 11/20/98 

178. Resolutions of the Board of Directors of KTI–Canada, 12/31/98 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 25 of 53
13

179. Special Resolutions of KTI–Canada, 12/1/99 

180. Minutes of the Meetings of the Board of Directors of KTI–

Canada, 1/13/00 

181. Special Resolution of KTI–Canada, 10/18/00 

182. Resolutions of the Sole Shareholder of KTI–Canada, 12/13/00 

183. KTI–Canada Incorporation Forms 

184. KTI–Canada Shareholders' Ledger 

185. Various Registers of KTI–Canada 

186. KTI–Canada Shareholder Registration List (9/29/98 – 11/9/98) 

187. KTI–Canada Share Certificate 

188. KTI–Canada Articles of Incorporation 

189. By-Law No. 1 for KTI–Canada 

190. By-Laws of RTI Collections Services, Inc. RTG889 – 

RTG901 

191. ARR Financial Statements, 3/31/02 ARR1-6 

192. ARR Balance Sheet (6/9/01) ARR7-10 

193. ARR Balance Sheet (4/30/01) ARR11-14 

194. Atlantic Trucking & Limespreading Limited Financial 

Statements, 6/7/00 

ARR15-21 

195. Atlantic Trucking & Limespreading Ltd Financial Statements, 

12/31/99 

ARR22-25 

196. Certificate of Name Change, 6/29/00 ARR 26 

197. Certificate of Registration, 1/17/96 ARR 27 

198. Certificate of Incorporation, 11/26/93 ARR 28 

199. Memorandum of Association for Atlantic Trucking & 

Limespreading Limited 

ARR30-31 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 26 of 53
14

200. Articles of Association for Atlantic Trucking & Limespreading 

Limited 

ARR32-66 

201. Appointment of Agent, 6/29/00 RTG78 

202. Notice to the Registrar of Joint Stock Companies ARR79 

203. Various Registers for ARR ARR80-83 

204. Shareholders' Ledger ARR84-86 

205. Resolutions of Directors of Atlantic Trucking & Limespreading 

Limited (11/26/93) 

ARR87-88 

206. Resolutions of the Shareholder of Atlantic Trucking & 

Limespreading Limited (11/29/93) 

ARR90-93 

207. Resolution of the Director of Atlantic Trucking & 

Limespreading Limited (11/29/93) 

ARR94-95 

208. Resolutions of the Director of Atlantic Trucking & 

Limespreading Limited (11/30/93) 

ARR97-98 

209. Resignation ARR99 

210. Special Resolution of the Sole Shareholder of Atlantic Trucking 

& Limespreading Limited (12/8/94) 

ARR100 

211. Resolution of the Sole Director of Atlantic Trucking & 

Limespreading Limited (12/8/94) 

ARR101 

212. Resolution of the Directors of Atlantic Trucking & 

Limespreading Limited (9/4/00) 

ARR106 

213. Special Resolution of the Sole Shareholder of Atlantic Trucking 

& Limespreading Limited (6/8/00) 

ARR 107 

214. Special Resolution of the Sole Shareholder of Atlantic Trucking 

& Limespreading Limited (6/8/00) 

ARR108 

215. Resolution of the Director of Atlantic Trucking & 

Limespreading Limited (6/8/00) 

ARR109 

216. Resignation of Steven Benison ARR110 

217. Atlantic Trucking & Limespreading Limited Director's 

Resolution, 6/8/00 

ARR111 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 27 of 53
15

218. Atlantic Trucking & Limespreading Limited Shareholder's 

Resolution, 6/8/00 

ARR 113 

219. Atlantic Trucking & Limespreading Limited Shareholder's 

Resolution, 6/8/00 

ARR 114 

220. Certificate of Common Stock ARR121 

221. Resolutions of the Board of Directors of ARR (4/30/01) 

222. ARR Unanimous Written Consent of Directors to Action Taken 

in Lieu of a Special Meeting (4/30/01) 

223. ARR Unanimous Written Consent of Directors to Actions Taken 

in Lieu of a Special Meeting (3/30//01) 

224. ARR Unanimous Written Consent of Directors to Actions Taken 

in Lieu of a Special Meeting (8/30/00) 

225. ARR Unanimous Written Consent of Directors to Actions Taken 

in Lieu of a Special Meeting (6/30/00) 

226. ARR Written Consent of Sole Shareholder to Actions Taken in 

Lieu of Annual Meeting Thereof (6/3/00) 

227. EGS Purchase Order EGS0100001 C509 

228. EGS Purchase Order EGS0100002 C508 

229. EGS Purchase Order EGS0100003 C507 

230. EGS Purchase Order EGS0100004 C506 

231. EGS Purchase Order EGS0100005 C505 

232. EGS Purchase Order EGS0100005 Addendum 1 C504 

233. EGS Purchase Order EGS0100006 C503 

234. EGS Purchase Order EGS0100007 C500 

235. EGS Purchase Order EGS0100008 C499 

236. EGS Purchase Order EGS0100009 C495 

237. EGS Purchase Order EGS0100010 C498 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 28 of 53
16

238. EGS Purchase Order EGS0100010 Addendum 1 C496 

239. EGS Purchase Order EGS0100013 C493 

240. EGS Purchase Order EGS0100014 C492 

241. EGS Purchase Order EGS0100015 

242. EGS Purchase Order EGS0100016 

243. EGS Purchase Order EGS0100017 C491 

244. EGS Purchase Order EGS0100021 

245. EGS Purchase Order EGS0100031 

246. Undated Chart Comparing LINC-15 with LINC-30 CD-ROM63 

247. Plaintiff 's Objections and Answers to Defendant Casella Waste 

System Inc.'s First Set of Interrogatories 

248. Plaintiff's Response to Defendant Casella Waste System Inc.'s 

First Set of Requests for Production of Documents and Things 

249. Defendants' Objections and Responses to Plaintiff's 

Interrogatories, dated 8/12/2002, in Generon IGS Lawsuit 

250. Defendants Atlantic Recycled Rubber, Inc.'s and Recovery 

Technologies Group, Inc.'s Initial Disclosures, 10/28/02 

251. Plaintiff's Self-Executing Disclosure, 10/25/02 

252. Drafts of 15 Ton Per Day Onsite Liquid Nitrogen System 

253. Draft of 28 Ton Per Day Onsite Liquid Nitrogen System 

254. Drafts of 30 Ton Per Day Onsite Liquid Nitrogen System 

255. Drafts of an Onsite Liquid Nitrogen (LIN) Facility Supply 

Agreement 

256. Deposition Transcript of Manuel Menendez, 8/15/2003 

257. Deposition Transcript of Theodore J. DelGaizo, 8/27/2003 

258. Deposition Transcript of Steven John David Benison, 

10/14/2003 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 29 of 53
17

259. Deposition Transcript of Robert E. Wetzel, 10/15/2003 

260. Deposition Transcript of Richard Gray Kelley, Jr., 10/15/2003 

261. Deposition Transcript of James Bohlig, 10/27/2003 

262. Deposition Transcript of Martin J. Sergi, 11/14/2003 

263. Deposition Transcript of George Timberlake, 11/18/2003 

264. Deposition Transcript of Manny Menendez, 10/25/2002 

(Generon IGS Lawsuit) 

265. Deposition Transcript of Barry Smith, 2/18/2003 (Generon IGS 

Lawsuit) 

266. Trial Transcript from Generon IGS, Inc. v. EGS, CCP, et al. 

(September 22 & 23, 2003) 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 30 of 53
EXHIBIT "B"

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 31 of 53
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 

MLEA, INC., : 

 : CIVIL ACTION 

 Plaintiff, : 

 : 

 v. : No. 02-CV-4393 

 : 

ATLANTIC RECYCLED RUBBER : 

INC., RECOVERY TECHNOLOGIES : 

GROUP INC., AND CASELLA : 

WASTE SYSTEMS, INC. : 

 : 

 Defendants. :

DEFENDANT CASELLA WASTE SYSTEMS, INC.'S 

PROPOSED POINTS FOR CHARGE

Defendant Casella Waste Systems, Inc, by and through its undersigned attorneys, 

Buchanan Ingersoll PC, respectfully submits these proposed points for charge pursuant to the 

Court's Orders of January 22, 2004 and October 22, 2002. 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 32 of 53
2

Instruction No. 1:

THE PARTIES

 The Plaintiff in this case is MLEA, Inc. I will refer to MLEA, Inc. as "MLEA." The 

defendants are Atlantic Recycled Rubber, Inc., Recovery Technologies Group, Inc., and Casella 

Waste Systems Inc. I will refer to them as "ARR," "RTG" and "Casella," respectively. MLEA 

filed this lawsuit against ARR, RTG and Casella. RTG has filed a counterclaim against MLEA. 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 33 of 53
3

Instruction No. 2:

BURDEN OF PROOF ON PARTY - BREACH OF CONTRACT

 MLEA has brought a claim for breach of contract against the defendants. The party 

bringing an action on a contract must prove its own performance and a breach by the other party. 

If an affirmative contract to perform a duty is proved, the person bound to perform the duty must 

prove that the terms and conditions of the contract have been met. Likewise, where the acts of 

one party to a contract depend on the acts of the other party, the damaged party cannot support a 

breach of contract action without showing performance of each dependent act on its part. When 

suing on a contract to recover damages, it is enough to prove a breach, and it is not necessary to 

show that the contract was completely broken in every respect. 

Authority: Pennsylvania Suggested Civil jury Instructions ("PSCJI") § 15.17

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 34 of 53
4

Instruction No. 3:

MULTIPLE PARTIES/DEFENDANTS

 In this case there are several different parties representing separate and distinct claims. 

The law permits joining these claims for trial because they arise out of the same subject matter. 

Although these different claims will be tried together, each is separate from the other(s), and 

each party is entitled to have you consider each claim separately as it affects that party. 

Therefore, you should consider the evidence as it relates to each party or claim separately, as you 

would if each claim had been tried before you separately. 

 Although there is more than one defendant in this action, it does not follow from that fact 

alone that if one defendant is liable to the plaintiff, all defendants are liable. Each defendant is 

entitled to a fair consideration of the evidence. None of the defendants is to be prejudiced should 

you find against another defendant. [Unless otherwise stated,] all instructions I give you govern 

the case as to each defendant. 

Authority: Adapted from Kevin F. O'Malley, Jay E. Grenig and the Honorable William C. Lee, 

FEDERAL JURY PRACTICE AND INSTRUCTIONS, CIVIL, § 103.14 (5th ed. 2000) (hereinafter 

"FEDERAL JURY PRACTICE & INSTRUCTIONS") 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 35 of 53
5

Instruction No. 4:

ELEMENTS OF CONTRACT ACTION

 In order for you to find for the plaintiff on its breach of contract claim, you must find that 

the plaintiff has proved a number of items by a preponderance of the evidence. Each of these 

items will be discussed separately. But first, you need to know what constitutes a contract. 

 A contract is a legally enforceable agreement between two or more competent parties 

who have each promised to do, or refrain from doing, some lawful act. Whether oral or written, a 

contract is enforceable if its terms clearly express what each party intended and expected. If the 

terms of the agreement are not definite and certain, any uncertainty may be clarified by 

examining the circumstances surrounding the bargain. The basic elements that must be present to 

form a contract, each of which must be proven by a preponderance of the evidence, are offer, 

acceptance, and consideration. 

 A. Offer. A valid offer expresses a willingness to enter into a contract. The offer 

gives someone else the power to create the contract by making a valid acceptance of the offer 

and thereby "sealing the deal." In determining whether something was intended to be an actual 

offer, it must be examined in context, and it must be examined in light of the surrounding 

circumstances. You may find that one party's actions did constitute an offer when you consider 

the custom established in a particular trade or business, the relation between the parties, and the 

prior dealings between the parties. 

 The offer must create the power to accept, and thereby create a binding contract. If the 

offeree rejects the offer, the offer is no longer open and cannot be accepted. Other statements 

may be mistaken for an offer. Some of these include: 

 1. An expression of intent to do something in the future (i.e., "I intend to sell 

my car for $5,000.00." The speaker is not bound to sell the car if the listener 

hands the speaker the money. The speaker did not offer the car for sale.); 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 36 of 53
6

 2. A request for bids, or invitations for others to make offers; 

 3. An invitation to negotiate, such as "[w]ould you consider selling that?"; 

 4. A statement that a reasonable person would realize was not made in 

seriousness; and 

 5. An "offer" made by an incompetent person is not a valid offer. 

 B. Acceptance. An acceptance is a clear indication that one agrees to be bound by 

the terms of the offer. The acceptance must be given within the time specified by the offer, or 

within a reasonable time if none is specified. The person to whom the offer was directed is the 

only person who may accept the offer. 

 If the parties have had previous dealings whereby certain methods of acceptance have 

become customary between them, then such will constitute valid acceptance. An example of this 

would be a beginning of the requested performance upon receipt of the offer, rather than sending 

notice of acceptance of the offer first. 

 An acceptance must not change the terms of the offer, or impose any additional 

conditions. If it does change the terms of the offer it will be considered a counteroffer, rather 

than an acceptance, and will therefore not create a contract. 

 C. Consideration. There must be consideration given by each party to a valid 

contract. That is, each party must have bargained to exchange his or her promise for another. The 

exchanged promises are either promises to perform or promises not to perform some act. The 

value or adequacy of the consideration given will not usually be examined, but the circumstances 

which show that both parties were capable of bargaining will be examined. In that sense 

competent people are free to contract, and even if one makes a bad deal, he or she is bound by 

the agreement. 

One's promise to make a gift to another is not an enforceable promise since no 

consideration was given for that promise and thus no contract was created. There is, however, 

Case 2:02-cv-04393-JS Document 24 Filed 02/18/2004 Page 37 of 53
7

consideration where one promises to use his or her best efforts. Yet no consideration will be 

found upon which to base a contract if one party has promised to do something that he or she is 

already obligated to do, such as repay a preexisting debt. 

Authority: PSCJI §15.00 

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Instruction No. 5:

BREACH OF CONTRACT – GENERALLY

 Failure of a party to a contract to perform in accordance with its terms gives the other 

party a cause of action for breach. A breach of contract occurs when a party to the contract fails 

to perform any contractual duty of immediate performance, or violates an obligation, 

engagement or duty. 

 Not every nonperformance, however, is to be considered a breach of the contract. If you 

find that the nonperformance was trivial, and thus that the contract was substantially performed, 

you must also find that a breach of the contract has not occurred. 

Authority: PSCJI §15.04

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Instruction No. 6: 

CONDITION PRECEDENT - BREACH OF CONTRACT

 To prove its breach of contract claim against the defendant, MLEA must establish by a 

preponderance of the evidence that it met all conditions precedent in its agreements with 

defendants. 

 If you determine that Casella was bound by such an agreement, and that the conditions 

included in the letters of September 13, 2000, December 1, 2000 and December 12, 2001 were 

terms of such an agreement, you will have to decide whether these terms were conditions 

precedent. A condition precedent is a condition that must occur before a duty to perform under a 

contract arises. An act or event designated in a contract will not be construed as constituting a 

condition precedent unless that clearly appears to be the parties' intent as expressed by clear 

language, and otherwise it will be construed as a covenant. The burden of proof to establish a 

condition precedent is on the party alleging a condition precedent. 

Authority: Acme Markets Inc. v. Federal Armored Express, Inc., 648 A.2d 1214 (Pa. Super. 

1994) 

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Instruction No. 7: 

 CORPORATE ENTITY - ALTER EGO

 Plaintiff MLEA claims that defendant Casella is the alter ego of defendant ARR. This 

amounts to a claim that those parties should be treated as being one and the same entity or person 

under the law so that the separate corporate existence of ARR should be disregarded and 

defendant Casella should be held liable for ARR's obligations. 

One who asserts that a parent corporation is liable for the acts of its subsidiaries bears the 

burden of proving it. In order to determine this, you must consider the law of "alter-ego" 

liability to determine whether ARR or RTG acted on behalf of Casella. 

 With respect to that issue, you are instructed that a corporation, generally, is a separate 

legal entity authorized under the law to do business in its own right and on its own credit as 

distinguished from the credit and assets of other persons or corporations. Also, the mere fact that 

one or two individuals own and control the stock structure of a corporation, or that two 

corporation have common officers or directors, or both, does not mean that the corporation may 

be regarded as the alter ego of its stockholders. Generally, the parent corporation must be shown 

to have a complete domination of not only finances, but of policy and business practice with 

respect to the transaction. 

 However, the existence of a corporate entity may be disregarded where it is proved that 

the corporation was created as a mere device or sham to accomplish some ulterior purpose, or is 

a mere instrumentality or agent of another corporation or individual owning all or most of its 

stock, or where the purpose is to evade some statute or to accomplish some fraud or illegal 

purpose. In Pennsylvania, the corporate form may be disregarded in limited situations, including 

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where there is: 

1. gross undercapitalization of the subsidiary, 

2. failure to adhere to corporate formalities, 

3. substantial intermingling of various corporate affairs, 

4. the use of the corporate form to perpetrate a fraud. 

5. non-payment of dividends; 

6. siphoning of funds from subsidiary by dominant shareholders; 

7. non-functioning of other officers and directors; and 

8. absence of corporate records. 

Authority: FEDERAL JURY PRACTICE & INSTRUCTIONS § 108.05 

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Instruction No. 8:

UNJUST ENRICHMENT

Unjust enrichment or "quantum meruit" is essentially an equitable doctrine – a legal 

fiction – where the law implies the contract between the parties. In its complaint, MLEA has 

alleged that Casella unjustly enriched itself, at MLEA's expense, by accepting and retaining 

certain engineering plans and design specifications, and that Casella used these plans to construct 

part of a plant at Truro. 

In order to prevail on this claim, MLEA must prove: 

1. That MLEA conferred some benefit upon Casella – in this case, by proving 

certain equipment and services were received by Casella; 

2. That Casella appreciated the value of the benefit that MLEA conferred upon it; 

and 

3. That Casella accepted and retained the benefit that MLEA conferred upon it under 

such circumstances that it would be unjust for Casella to retain the benefit without 

paying MLEA the value of that benefit. 

Whether the doctrine of unjust enrichment applies depends on the unique factual 

circumstances of each case. In determining if the doctrine applies, the focus is not on the 

intention of the party, but rather on whether the defendant has been unjustly enriched. The most 

significant element of the doctrine is whether the enrichment of the defendant is unjust. The 

doctrine does not apply simply because the defendant may have benefited as a result of the action 

of the plaintiff. 

If you are persuaded that Casella received a benefit from MLEA, then your verdict must 

be for MLEA on its claim for unjust enrichment. If you are satisfied from the evidence that 

Casella did not receive a benefit from MLEA, and thus was not unjustly enriched, then you must 

return a verdict for Casella. 

Authority: Ameripro Search, Inc. v. Fleming Steel Co., 787 A.2d 988, 990 (Pa. Super. 2001)

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Instruction No. 9:

PROMISSORY ESTOPPEL - ELEMENTS

In its complaint, MLEA has also brought a claim for promissory estoppel against 

defendants. Under the theory of promissory estoppel, a promise which the promisor should 

reasonably expect to induce action or forbearance and which does induce such action or 

forbearance is binding if injustice can be avoided only by the enforcement of the promise. 

In order to prevail on this claim, MLEA must prove that: 

1. Casella made a promise that it should have reasonably 

expected would induce action or forbearance on the part of MLEA; 

2. MLEA actually took action or refrained from taking action 

in reliance on the promise; and 

3. Injustice can be avoided only by enforcing the promise. 

Reasonable reliance means that the party that changed its position must have lacked the 

means of knowing the truth about the facts in question. 

If you are persuaded that Casella's conduct intentionally or unintentionally led MLEA to 

believe that a contract was formed, and that MLEA reasonably relied on Casella's conduct, then 

your verdict must be for MLEA on its claim for promissory estoppel. If you are satisfied from 

the evidence that Casella did not receive a benefit from MLEA, and thus was not unjustly 

enriched, then you must return a verdict for Casella. 

Authority: Constar, Inc. v. National Distribution Center, Inc., 101 F.Supp.2d 319, 324 (E.D. 

Pa. 2000) (R. Kelly, J.) 

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Instruction No. 10: 

GENERAL INSTRUCTION ON DAMAGES

 I now turn to the issue of damages. You must determine whether any of the parties to 

this lawsuit must compensate any other parties. The fact that I am instructing you on damages 

does not mean that you should interpret that I have any belief that any party is liable to any other 

party in this case. 

 Instructions as to the measure of damages are given for your guidance only in the event 

you should find in favor of the plaintiff from a preponderance of the evidence in the case in 

accordance with the other instructions. 

Authority: FEDERAL JURY PRACTICE & INSTRUCTIONS § 106.02 

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Instruction No. 11: 

DAMAGES - BREACH OF CONTRACT

 Where one party to a contract breaches that contract, the other party may recover for 

those injuries that have been produced to you with reasonable certainty. Any compensation for 

injury is termed "damages." 

 The primary aim or principle of the law of damages for breach of contract is to place the 

plaintiff in the same position in which the plaintiff would have been if the contract had been 

fulfilled. Or to place the plaintiff in the same position which he would have occupied had the 

breach of contract not occurred. 

 In this case, MLEA has the burden of proving that it suffered damages because of a 

defendant's breach of the MLEA-ARR contract. 

Authority: PSCJI § 15.26

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Instruction No. 12: 

CONSEQUENTIAL DAMAGES

 If you find that a defendant breached an agreement with MLEA the measure of damages 

you award should place MLEA as nearly as possible in the same position as it would have been 

had the defendant not breached the agreement. This includes consequential losses, if any, which 

MLEA suffered as a result of the defendant's breach. 

 Thus, if you find that a defendant breached a contract, MLEA is also entitled to 

consequential damages. Consequential damages are all those damages that arise naturally from 

the defendant's breach or were reasonably foreseeable by MLEA at the time the parties entered 

into the contract with the defendant. 

Authority: Reimer v. Tien, 514 A.2d 566 (Pa. Super. 1986) 

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Instruction No. 13:

DAMAGES MUST NOT BE SPECULATIVE 

If you find that MLEA is entitled to damages, you may award it only such damages as 

will reasonably compensate it for its actual injury which you find from the preponderance of the 

evidence in this case. 

Damages for breach of contract must be shown with certainty and not left to speculation. 

The law requires MLEA to produce evidence which establishes a basis for assessing damages 

with a firm degree of probability. 

Therefore, you are not permitted to award speculative damages. This means that you 

cannot guess as to what damages may be, if any, and you cannot make an award of damages 

based on somebody else's guess or speculation, including that of any witness who has testified at 

trial. MLEA must have produced evidence to establish, with a fair degree of probability, a basis 

for assessing damages. I instruct you not to award damages to MLEA if they are too speculative, 

vague or contingent. 

 

Authority: JMJ Enterprises, Inc. v. Via Veneto Italian Ice, Inc., 1998 WL 17588 (E.D. Pa.. 

April 15, 1998) (McGirr Kelly, J.) 

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Instruction No. 14:

DAMAGES – CAUSAL CONNECTION

In order to recover for damages pursuant to a breach of contract, a plaintiff must show a 

causal connection between the breach and the loss. 

 Thus, if the plaintiff is successful in proving that the defendants breached an agreement 

with the plaintiff, the plaintiff may only receive whatever damages it suffered if the damages 

were such as would naturally and ordinarily result from the breach, were reasonably foreseeable 

and within the contemplation of the parties at the time they made the contract, and can be 

proved with reasonable certainty. 

Authority: Trans Penn Wax Corp. v. McCandless, 50 F.3d 217 (3d Cir. 1995) (citing Logan v. 

Mirror Print Co., 600 A.2d 225 (Pa. Super. 1991) 

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Instruction No. 15: 

MITIGATION OF DAMAGES

 You are instructed that a party who has incurred damages because of a breach of contract 

has a duty under the law to "mitigate" those damages – that is, to make reasonable efforts under the 

circumstances to reduce or minimize the loss or damage. Mitigation of damages involves 

reasonable actions by the nonbreaching party to reduce or eliminate the damages caused or incurred 

by the breach of contract. 

 So, if you should find that Casella has proved that the plaintiff failed to seek out or take 

advantage of a business or employment opportunity that was reasonably available to it under all the 

circumstances shown by the evidence, then you should reduce the amount of plaintiff's damages by 

the amount it could have reasonably realized if it had taken advantage of such opportunity. 

Authority: PSCJI § 15.31 

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Instruction No. 16:

VERDICT – ONE OF MULTIPLE DEFENDANTS

 At any time during your deliberations, you may return into court your verdict as to any 

party concerning whom you have unanimously agreed. 

Authority: FEDERAL JURY PRACTICE & INSTRUCTIONS § 106.04 

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 Respectfully submitted, 

 ____________________________ 

 Antoinette R. Stone, I.D. No. 23464 

 Brian J. McCormick, Jr., I.D. No. 81437 

 BUCHANAN INGERSOLL PC 

 1835 Market Street, 14th Floor 

 Philadelphia, PA 19103 

 (215) 665-8700 

 (215) 665-8760 (fax) 

Dated: February 18, 2004 

 Attorneys for Defendant Casella Waste 

 Systems, Inc. 

 

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CERTIFICATE OF SERVICE

 I, Brian J. McCormick, Jr., hereby certify that on February 18, 2004, I caused to be 

served a true and correct copy of Defendant Casella Waste Systems Inc.'s Pretrial Memorandum 

via first-class mail upon the following: 

Philip J. Katauskas 

Pepper Hamilton LLP 

3000 Two Logan Square 

18th & Arch Streets 

Philadelphia, PA 19103-2799 

Heather E. Rennie 

Eckert Seamans Cherin & Mellott, LLC 

1515 Market Street, Ninth Floor 

Philadelphia, PA 19102 

 

 Brian J. McCormick, Jr. 

#630206-v1;PHL1_General; 

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