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HomeMy WebLinkAbout01-4665 LAW OFFICES OF KNUPP, KODAK & IMBLUM, P.C. CAMERON MANSION 407 NORTH FRONT STREET RO. BOX 11848 HARRISBUR(3, ~A i7108-1848 MOItAWK FACTORING, 1NC.. A Subsidiat? of MOHAWK INDUSTRIES. INC. Plaintiff MICHAEL PAOLETTA, Individually and l'rading As MIKE LYNN ENTERPRISES, USA CARPETS. INC. and USA CARPETS Defendant IN 1HE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA CIVIE DIVISION - I,AW _NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISII'FO DEFEND AGAINST THE CLAIM SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITI lIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO TIlE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOt! BY FHE COURT WITIIOUT FURTHER NO ['ICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTIIER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOt MAY EOSE MONEY OR PROPERTY OR OTEIER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR I,AWYER AT ONCE. 1F YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GEE LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION TWO LIBERTY AVENUE CARLISLE PA 17013 (717) 249-3166 MOHAWK FACTORING, INC., A Subsidiary of MOHAWK: IN THE COURT OF COMMON PLEAS INDUSTRIES, INC. : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : v. : No. MICHAEL PAOLETTA, Individually and Trading As : CIVIL DIVISION - LAW MIKE LYNN ENTERPRISES, USA CARPETS, INC. and : USA CARPETS : Defendant : COMPLAINT The Plaintiff, MOHAWK FACTORING, INC., A Subdivision of MOHAWK INDUSTRIES, INC. by its attorneys, KNUPP, KODAK & IMBLUM, P.C., brings this action of Assumpsit against the Defendant to recover the sum of FIVE THOUSAND, SIX HUNDRED ONE DOLLARS AND NINETY CENTS ($5,601.90), along with interest thereon from January 11, 2001 upon a cause of action of which the following is a statement: 1. The Plaintiff, MOHAWK FACTORING, INC., is a Subsidiary of MOHAWK INDUSTRIES, INC., which, is a corporation organized and existing under the laws of the State of Delaware, having an office and place of business at 235 Industrial Boulevard, Chatsworth, Georgia 30705. 2. The Defendant, MICHAEL PAOLETTA, an adult individual, is now or formerly was trading and doing business as MIKE LYNN ENTERPRISES, USA CARPETS, INC. and USA CARPETS and has an address at 1771 South Meadow Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055. F:\USER\BONNIEJO\COMP\WORK~26532.WPD:06Jun01 COUNTI MOHAWK FACTORING. INC.. A Subsidiary of MOHAWK INDUSTRIES. INC. vs. MICHAEL PAOLETTA. Individually and Tradin~ As MIKE LYNN ENTERPRISES. USA CARPET, INC. and USA CARPET 3. On the dates, in the amounts, and for the prices set forth in a true and correct copy of the Plaintiffs Statement hereto at/ached, marked as Exhibit "A" and made a part hereof, Plaintiff, at the special instance and request of the Defendant, sold and delivered goods, wares and merchandise of the kind and description set forth on said Exhibit to the total amount of Five Thousand, Four Hundred Eighty-Three Dollars and Eight Cents ($5,483.08). 4. The prices charged for said goods, wares and merchandise were just and reasonable, were the legal and market prices therefor and were the prices which the Defendant orally promised and agreed to pay Plaintiff therefor. 5. Defendant become entitled to certain credits against the charges aforementioned, as more particularly shown on Exhibit "B" attached hereto and made a part hereof, to the total amount of Eight Hundred Sixty-Six Dollars and Seventy-Six Cents ($866.76). 6. The balance due and owing by Defendant to Plaintiff is the sum of Four Thousand, Six Hundred Sixteen Dollars and Thirty-Four Cents ($4,616.34). 7. Due to Defendant's default in payment of said amount due and owing as aforesaid, interest has been added to said account in the total amount of Fifty-One dollars and Eighty-Three Cents ($51.83 ). 8. The total balance due and owing by Defendant to Plaintiff is the sum of Four Thousand, Six Hundred Sixty-Eight Dollars and Twenty-Five Cents ($4,668.25). F:\USER\BONN1EJO\COMP\WORK\26532.WPD:06Jun01 2 9. Plaintiff frequently demanded payment from Defendant of said amount due and owing as aforesaid, but Defendant, despite repeated promises, has refused and neglected and still refuses and neglects to pay said amount of any part thereof. WHEREFORE, Plaintiff brings this suit to recover from Defendant the sum of FOUR THOUSAND, SIX HUNDRED SIXTY- EIGHT DOLLARS AND TWENTY-FlUE CENTS ($4,668.25), together with interest thereon from January 11,2001. COUNT II MOHAWK FACTORING. INC.. A Subsidiary of MOHAWK INDUSTRIES. INC. vs. MICHAEL PAOLETTA, Individually 10. Plaintiff incorporates Paragraphs I through 9 hereinabove as if fully and at length set forth. 11. On or about April 20, 1999, Defendant did complete and execute Plaintiffs Credit Application and Personal Guarantee. A true and correct copy of said Credit Application and Personal Guarantee is attached hereto, marked as Exhibit "D" and made a part hereof. 12. Due to Defendants', USA Carpets, Inc. and USA Carpets, failure to pay the account as set forth in Count I hereinabove, Defendant, Michael Paoletta, Individually, pursuant to the terms and conditions of Exhibit "C" herein, is liable for all monies due and owing on account. 13. Further, Due to USA Carpets, Inc. and USA Carpets, failure to pay the account as set forth in Count 1 hereinabove, Defendant, Michael Paoletta, Individually, pursuant to the terms and conditions of Exhibit "C" herein, is liable for attorney's fees, which have been added to said account in the amount of Nine Hundred Thirty-Three dollars and Sixty-Five Cents ($933.65). 14. The total balance due and owing by Defendant to Plaintiff is the sum of Five Thousand, Six Hundred One Dollars and Ninety Cents ($5,601.90). F:\USER\BONNIEJO\COMP\WORK\26532.WPD:06Jun01 3 15. Plaintiff frequently demanded payment from Defendant of said amount due and owing as aforesaid, but Defendant, despite repeated promises, has refused and neglected and still refuses and neglects to pay said amount of any part thereof. WHEREFORE, Plaintiff brings this suit to recover from Defendant the sum of FIVE THOUSAND, SIX HUNDRED ONE DOLLARS AND NINETY CENTS ($5,601.90), together with interest thereon from January 11, 2001. Respectfully submitted, Robert D. Kodak 407 North Front Street Post Office Box #11848 Harrisburg, PA 17108-1848 (717) 238-7151 Attorney ID No. 18041 Attorney for Plaintiff F:\U SER\BONN1EJO\COMP\WORK\26532.WPD:06Jun01 4 STATE OF ~rt'lt ~k- COUNTY OF ~! .~ t'.t'tO ~ BEFORE me, the ~dersi~ed authohty, on &is day personally appe~ed ~ ~~ , ~own to me, who being duly sworn upon oa~ d~oses ~d says ~at he/she is ~ (~ositio~held~ ~d duly au~ofized agent of ~~ ~~; ~ (Trade nme of compan)9 a co~oration duly inco~omted ~d existing ~der ~e laws of ~e State of ~, a pmners~p consisting of o~ed ~d operated by . a sole tr~er residing in the County of ., State of , ~d ~at ~ such m~es this affidavit, that he/she is fmilim wi~ ~e books of s~d ~i~ership (circle one) or trader; that the attached account ag~nst sole ~ ~ ~ ~ ~E, , constituting this cause of action, is t~en ~om the original book of en~, ~d is just ~d ~e within ~e ~owledge of this affi~t; that all just ~d law~l offsets, pa~ents, ~d credits have been allowed - ~d that ~e sm of ~ ~ fi' ~/~ doll.s ($ ~:~[~;~ ) plus interest computed at % ~om is due, owing, ~d ~paid ~d that dem~d for pa~ent has been made more th~ ~ (30) da~ prior h~eto ~d no pament h~ bern received. ~ ' (Afff~i)~ d - ~ r- Subscribed ~d swom to me ~is / / day or ~&j~ a ~, 20 O / Notary Public in and for the County and State herein before written My commission expires ]r~iA.GC~ 0l')20 d*/ Notary must PRINT name MOHAWK INDUSTRIES. [NC ACCT NBR: 562948 8/24/00 U S A CARPETS ATTN: MICHAEL PAOLETTA DEPT. 1771 S. MEADOW DRIVE MECHANICSBUI{G PA 17055 PAGE: DEAR MICKEY, Below is a listing of all outstanding items on your account. DOC NBR Please let me know if you have any questions. TP,~N DOC DATE DUE DATE ORIG ITEM AMT ITEM BALANCE C5686640 INV 7/03/2000 8/03/2000 6420.00 4920.00 USD C6214401 INV 8/11/2000 9/10/2000 443.17 443.17 USD M6105512 C/M 8/03/2000 8/04/2000 300.00- 300.00- USD S5712784 INV 7/06/2000 8/05/2000 119.91 119.91 USD TOTAL BALANCE: 5183.08 SINCEP~ELY, DONNA JONES ANALYST TEL: 800 427-4900X20230 FAX: 706 5!7-2365 P.O. FINANCIAL SERVICES DEPARTMENT BOX 800 * 255 INDUSTRIAL BLVD * CHATSWORTH, GA 50705 ORIGINAL INVOICE D.U.N.S 00-333-7136 ALADDIN MILLS DIV/SUBS OF MOHAWK CORPOHATION PO BOX 12069, S. IND. BLVD CALHOUN,GA 30703-7002 U S A CAJRPETS INC 1771 S. MEADOW DRIVE MECHANICSBURG, PA 17055 U S A CARPETS INC 1771 S. MEADOW DRIVE MECHANICSBURG, PA 17055 INVOICE NO, I M6520698 DATE I 9/05/00 PAGE NO. 1 INTEREST CHARGED FOR LATE PAYMENT~, U S A CARPETS INC 1771 S. MEADOW DRIVE MECHANICSBURG, PA 17055 · PLEASE INSPECT TH~S MERCHANDISE. M~LL WILL NOT HONOR ANY COMPLAINTS ON VISIBLE OEFECTS AFTER MERCHANDISE HAS SEEN CUT OR INSTALLED. · ALL CLAIMS FOR SHORTAGE OR DEDUCTION MUST BE MADE WITHIN FIVE DAYS AFTER RECEIPT DE GOODS, * NO GOODS MAY BE RETURNED FOR CREDIT UNLESS AUTHORIZED BY CLAIMS DEPARTMENT ~N WRITING. ' ALL CLAIMS POR GOODS LOST, STOLEN OR DAMAGED IN TRANSIT MUST SE MADE AGAINST THE TRANSPORTATION COMPANY. · THIS SALE IS SUBJECT TO SELLERS TERMS, CONDtTIONS AND CLAIMS POLICY, · ALL ORDERS EOR GOODS ARE SUBJECT TO AUTHORIZATION AND FINAL APPROVAL BY CORPORATE HEADQUARTERS. 0000000 9/05/00 HA7 HA3/{ISBURG DAILY *** INTERNAL CREDIT APPLIED TO YOUR OPEN INVOICE *** DO NOT USE *** ////// CHARGE 10% ////// CONTROL~ 2339827; PRICING; 602-PRICING ERROR; REF INV 5686640 07/03/00; DEBIT# 0008874159 07/03/00; CLAIM# 39232 08/15/00; R 434 A NETWORK2 40827647 12 00 167 06 223.33 SY 1.08 X1 394 CRANBERR R 434 A NETWORK2 85587328 12 00 167 06 223.33 SY 1.08 X1 394 CRANBERR R 434 A NETWORK2 40827654 12 00 128 1t 171.89 SY 1.08 X1 394 CRANBERR R 434 A NETWORK2 40827659 12 00 138 00 184.00 SY 1.08 X1 394 CRANBERR *** SUBTOTAL 802.55 SY 00000 241.20 241.20 185.64 198.72 $866.76 CR FAR FUNDS (U.S. DOLLARS) CUSTOMER NO: 562948 U S A CARPETS INC INVOICE NO: M6520698 9/05/00 A MOHAWK FACTORING, INC. I INVOICE TOTALS AND DISCOUNT INFORMATION PO BOX 91157 CHICAGO, IL 60693-1157 866.76 !i~>ii~i~iiFR~G~ ~i!i!~ii~[:??i~Es~ii~iii~i~il i~i~ii:i~i~?i!ii!~O~iii:iii~ii?i:ii!ili 866.76 *** THIS IS A CREDIT DO NOT PAY *** DISCOUNTS ALLOWED ON MERCHANDISE ONLY. 8 6 6.7 6 1 H£RI;B¥ At,'TltOIL~i~ MOHAWK C~ CONiStON ~C~G ~$ D~IC~ A~OR SUB$1D~ TO CON- ~ AS PART OF ~. ~ , - -- I,~Y, Recovery Specialist of MOHAWK FACTORING, INC., A Subdivisio~ of MOHAWK INDUSTRIES, INC., verify that the statcmcnts made in the af~regoing document are true znd correct, I understand that false stat~ra~nts he, rein are made subject to the penalties of 18 Pa. C. S. §4904, r~lating m unsworn falsification to authorities, MOHAWK FACTOP. ING~ INC. F:',.usEP,',.soz,u',a'~.m',ccReceiYed Time,Jun. 6. 9:5'7PM MOHAWK FACTORING, INC., A Subsidiary of MOHAWK INDUSTRIES, INC. Plaintiff MICHAEL PAOLETTA, Individually and Trading As MIKE LYNN ENTERPRISES, USA CARPETS,INC. and USA CARPETS Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4665 Civil Term ANSWER ANSWER The Defendant, MICHAEL PAOLETTA, Individually and Trading As MIKE LYNN ENTERPRISES, USA CARPETS,INC. and USA CARPETS acting as my own attorney hereby answer the Plaintiff's allegations. ANSWER COUNT 1. Agreed 2. Denied. All capital letter name is a misnomer and is not recognized by myself. 3. Denied. I have no records to show these amounts. 4~ Denied. 5. Denied in part. Mohawk Industries, Inc. owes defendant $2840.00 for samples that were never picked up. Mohawk Industries owes Defendant $5,000 for failure to ship carpet when ordered. 6. Denied. Defendant discussed terms with Donna Jones, about picking up samples and failure to ship. 7. Denied. 8. Denied. Denied. Defendant offered to hand deliver samples to warehouse and was told that salesmen would come by to pick up samples. ANSWER COUNT ll MOHAWK FACTORING, INC., A Subsidiary of MOHAWK INDUSTRIES, vs. MICHAEL PAOLETTA, Individually INC. Pa. 10. Denied. 11. Denied. The application [exhibit c, and improperly marked] and the terms have been altered with out my consent. 12. Denied. 13. Denied. 14. Denied. 15. Denied. WITH EXPLICIT RESERVATION OF ALL RIGHTS WITHOUT PREJUDICE. C.S. 1207, C.S.3501 [3], C.S. 3415 lb] 13 Michael~ Ly~ P~tta MOHAWK FACTORING, INC., A Subsidiary of MOHAWK INDUSTRIES, INC. Plaintiff PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Vo MIC~tAEL PAOLETTA, Individually and Trading As MIKE LYNN ENTERPRISES, USA CARPETS,INC. and USA CARPETS Defendant NO. 01-4665 Civil Term ~DEMAND FOR PRETRIAL DISCOVERY Please find attached Demand for pretrial Discovery for Pretrial pursuant to Pennsylvania Rules of Civil Procedure 4003.1. Answers to Demand for Pretrial discovery and delivery of document[s] are required within Thirty [30] days upon receipt of this Demand at the location off Michael Lynn Paoletta, 1771 South Meadow Drive, Mechanicsburg, Pa. 17055 ,3 Date: September ~-~', 2001 Signed Without Prejudice by Michael Lynn Paoletta Pretrial Discovery Pretrial Discovery is hereby made to the Robert D. Kodak, attorney for MOHAWK FACTORING, INC. A Subsidiary of MOHAWK INDUSTRIES, INC. to supply answers to the following questions and to furnish true and accurate copies of document[s] to the Defendant MICHAEL PAOLETTA. This information is required to assist in making a meaningful defense, since I do not understand the nature of the cause of action of the complaint brought forth by the plaintiff. OBJECTIONS Objections to all or any portion of an interrogatory shall be set forth with specific sufficiency to allow the Defendant propounding these interrogatories to understand the exact scope of and reason for the objection. Where an objection relates to only a portion of the information requested in an interrogatory, other information not within the scope of said objection shall be provided. Words and phrases used in these interrogatories that are not specifically described below shall have the meaning that is common and not necessarily that of legal terms;i.e., Person shall be construed to include a man or woman, and other word or terms used in these interrogatories that are not specifically defined below shall have its ordinary and customary meaning and usage. 3NTERROGATORIES Identify each and every person involved in any way in answering these interrogatories. Identify the person in charge of the Mohawk Factoring Account? Identify the person from MOHAWK FACTORING, INC.who retained attorney? [Kodak] Provide the day/month/year that alleged borrower agreed and was approved for credit? Did MOHAWK FACTORING,INC. provide full disclosure of the alleged credit? Does MOHAWK INDUSTRY, INC. or any of its Subsidiary guarantee that there were no alterations to any agreements? Does MOHAWK INDUSTRY, INC. guarantee that there was no conversion of the alleged agreement after the alleged borrower signed the alleged agreement? Page 1 of 3 Did MOHAWK FACTORING, INC. require the alleged borrower to repay the one that provided the capital that funded the credit? Did MOHAWK FACTORING, INC. guarantee that the alleged borrower would not be providing any capital, funds, money or money equivalent, that MOHAWK FACTORING, INC. OR ANY OTHER FINANCIAL INSTITUTION WOULD USE TO FUND THE CHECK OR SIMILAR INSTRUMENT? 10. Did MOHAWK FACTORING, INC. require the alleged borrower to repay the alleged loan using the same species of money or credit that MOHAWK FACTORING, INC. used to fund the alleged loan, credit line, check or similar instrument? 11. Did MOHAWK FACTORING, INC. advertise that MOHAWK FACTORING, INC. would extend credit to alleged borrower using MOHAWK FACTORING, INC. to fund the credit line or loan? 12. 13. 14. Was MOHAWK FACTORING, INC. required to use a check or similar instrument to purchase the alleged borrower's Promissory Note? Does MOHAWK FACTORING, INC. agree that the term "interest" is construed to mean the amount paid to a~tract deposit funds or a finance change for money or credit loaned to a borrower? If the answer to "13" MOHAWK FACTORING, INC. "interest". is in the negative, please explain how construes the meaning of the term 15. 16. Does MOHAWK FACTORING, INC. charge interest on the credit line or loan agreements and if so, does the interest represent a fee for lending and/or extending the loan or credit line. In order for MOHAWK FACTORING, INC. to loan or extend to a borrower, does someone have to deposit an asset prior to the loan or credit? 17. List every species of money that MOHAWK FACTORING, INC records as an asset. 18. According to MOHAWK FACTORING, INC. what is credit? 19o Was it the intent of the alleged agreement for the alleged borrower to provide money or money equivalent that MOHAWK FACTORING, INC. would use to fund the credit line or loan? 20. Was it the intent of the alleged agreement for MOHAWK FACTORING, INC. to provide MOHAWK FACTORING, INC.'s money, money equivalent, capital funds or thing of value to purchase the promissory note or loan/credit line papers from alleged borrower? Page 2 of 3 21. 22. 23. Does MOHAWK FACTORING, INC. allow the alleged borrower to make payments on the alleged account to any party that did not provide the capital that funded the alleged credit line or loan? Does MOHAWK FACTORING, INC. follow Generally Accepted Accounting Principles as required by law? Please identify each and every person whom you expect to call as a witness at trial in this matter, and for each person so identified, please state whether that witness will testify as a witness to the complaint or as an expert, or both. 24. For any experts you intend to call at trial, please state: 25. a. The name and address of each such experts witness; b. The subject matter as to which each such expert witness is expected to testify; c. The qualifications of each such expert witness. Set forth a summary of the grounds for each opinion to which each expert is expected to testify, including any textual material on which the expert witness will rely. Identify all such texts, materials or publications, including the name, author, edition and page reference. REQUEST FOR REPRODUCTION OF DOCUMENTS AND INFORMATION TO PREPARE FOR SUBPOENAS Please furnish the following document: A certified copy front and back of each and every page of the alleged agreement including, but not limited to the page allegedly signed by alleged borrower. 2. The name and address of MOHAWK FACTORING, INC.'s CPA auditor. 3. Copies of MOHAWK FACTORING INC.'S CPA audit reports from the last 3 years. Page 3 of 3 MOHAWK FACTORING, INC., A Subsidiary of MOHAWK INDUSTRIES, INC. Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-4665 CIVIL MICHAEL PAOLETTA, Individually and and Trading As MIKE LYNN ENTERPRISES, USA CARPETS, INC. and USA CARPETS Defendant RULE 1312-1. form: The Petition for Appointment of Arbitrators shall be substantially to the following PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Robert D. Kodak, Counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the Plaintiff in the action is $5,601.90 + Interest. The counterclaim of the Defendant in the action is Snone. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as Arbitrators: Robert D. Kodak, Esquire, Knupp, Kodak & Imblum, P.C. and/or n/a WHEREFORE, your Petitioner prays Your Honorable Court to appoint three (3) Arbitrators to whom the case shall be submitted.~ ~~ Robert D. Kodak Attorney I.D. No. 18041 ORDER OF COURT AND NOW, ,200 , in consideration of the foregoing Petition, , Esquire, , Esquire and , Esquire are appointed Arbitrators in the above-captioned action as prayed for. By the Court, MOHAWK FACTORING, INC.,: IN THE COURT OF COMMON PLEAS OF A Subsidiary of MOHAWK : CUMBERLAND COUNTY, PENNSYLVANIA INDUSTRIES, INC. : NO. 0~-4665 CIVIL TERM MICHAEL PAOLETTA, Individually and Trading as MiKE LYNN ENTERPRISES, USA CARPETS, INC., and USA CARPETS IN RE: ARBITRATION ORDER OF COURT AND NOW, June 20, 2003, the Court having been informed that the above-captioned case has settled prior to hearing, the panel of arbitrators previously appointed is vacated, and William C. Kollas, Esquire, Chairman of the Arbitration Panel, shall be paid the sum of $50.00. By the Court, William Kollas, I~squire Chairman James Jones, E. squire Marylou Matas, Esquire