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HomeMy WebLinkAbout97-00294 r" ;:""0""1(';' ol...Ir _1,,'1.. "'_ _, '.' _',,.-' '.-, '-T'.r.:y \,'" Ir:: ... '.' '.' _'/.' t . i , (Ji ~~C 30 Pi: I: nt, " c,..'.....:. ' . I ;,;",m! VI. .1_ .-'. ._ _1.11 F~::.l "~;"L.I':,\r!\ ~.l I ,'.' ,. . ,. WORLDWIDE TELECOMMUNICATIONS, INC.. Plaint if f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-294 Civil Term v. CIVIL ACTION-LAW THE BRULIN CORPORATION, Defendant JURY TRIAL DEMANDED PLAINTIFF'S INTERROGATORIES DIRECTED TO DEFENDANT - FIRST SET TO: The Blulin Corporation P.O. Box 270 Indianapolis, Indiana 46206 The cause of action maintained by Plaintiff against Defendant in the above captioned action is a sui t brought to enforce the contract attached hereto as Exhibit "A". These Interrogatories are to be answered pursuant to the applicable provisions of Pennsylvania Rules of Civil Procedure. These Interrogatories are continuing and any information secured subsequent to the filing of your Answers which would have been included in the Answers had it been known or available are to be supplied by Supplemental Answers. You must serve the Answers to these Interrogatories on the Plaintiff within thirty (30) days after the service of the Interrogatories upon you, according to Pennsylvania Rules of Civil Procedure. Your answers must be in writing and under oath. Plaintiff hereby reserves the right to file further Interrogatories or to pursue any other available discovery. The use of the masculine shall include the feminine and neuter. The use of the singular shall include the plural. Wherever the word "you" appears hereinafter, and whenever the designation of the party served with these Interrogatories appears hereinafter and whenever any person or entity is referred to hereinafter, such word, designation, person or entity shall be construed to mean not only the party served with these Interrogatories, other person or entity in his, her, its or their own right, but also his, her, its or their agents, servants, workmen, representative, employees or attorneys. If defendants, to whom these Interrogatories are addressed is not an individual(s), "you" or "your" includes the entire entity, its division, its merged or acquired predecessors, its present and former officers, directors, agents, employees and all other persons purporting to act on behalf of its or its predecessors. For purposes of these Interrogatories the word "representative" includes the attorney for the party and any consultant, surety, indemnitor, insurer, agent, adjustor or investigator for the party or the party's insurer. For purposes of these Interrogatories the word "statement" includes a written statement signed or otherwise adopted or approved by the person making it. It also includes a stenographic, mechanical, electrical or other recording or a transcript thereof which is substantially a verbatim recital of an oral statement by the person making it and contemporaneously recorded. YOFFE & YOFFE, P.C. By , ' /71. ~ JEFFREY N. YOFFE, ESQUIRE Attorney for plaintiff West Shore Office Center 214 Senate Avenue, suite 203 Camp Hill, PA 17011 (717) 975 -lB3B Attorney ID No. 52933 DATED: July 2B, 1997 ~ r I , '~ WORLDWIDE TELECOMMUNICATIONS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-294 civil Term J . 't v. CIVIL ACTION-LAW THE BRULIN CORPORATION, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE The undersigned certifies that on the day indicated below he served a true and correct original plus two true and correct copies of the foregoing Interrogatories on The Brulin Corporation. Service was accomplished by depositing the same in the united States Mail, first class, postage prepaid and addressed as follows: The Brulin Corporation P.O. Box 270 Indianapolis, Indiana 46206 YOFFE & YOFFE, P.C. DATE: July 28, 1997 B't/t~7 /0~1/ ,~JEFFREY N. YOFFE, ESQUIRE Attorney for plaintiff 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975 -1838 Attorney ID No. 52933 inter.be ,~-'I ' Worldwide Telecommunications, Incorporated 125 North Enola Drive, Suite 205 Enola, PA 17025 .1 .1 Guaranteed SavlnglL:.-C_o-D1inoency QnJy~sulllnQ Fee Aoreement Dear Worldwide Telecommunlcallons: We hereby appoint you to audit our local and long distance telecommunications vendor Invoices In order for you to make cost savings recommendations tQ our finn. Ills agreed you will analyze our expenses in their enlirety and research in detaillhe Federal Communications Commission local and long distance carrier tariffs of our local phone company and Ihe relevant tong distance carrlern. Ills agreed you will oHer us a detailed proposal oHering Ihe broadest and most comprehensive range of telecommunications savings and rate recommendalions possible ulillzing our choice of tariffs and carrlern. It Is understood and agreed that you will be working on a strict no-risk contingency fee basis and that your consulting fee will be the first three month's sailings. Aller the firSt three month's. 100% of the long term savings are ours 10 keep. Since savings are guaranteed by you to occur, If there are no savings realized by us, their Is t!l.Q. fee due to you. One-time refunds of past tariH overbllllngs will bd shared on a 50/50 basis upon colleclion. Cost savings will be calculated according to the following formulas: Cost Reducllon Savings Example.: .22 cents current cost per minute. .09 cenls new cast per minute = .13 cents per minute gross savings .13 cents per minute gross savings x 8,000 minutes of calling 1st month = $1040 one-month savings $1040 fee due month one. Refund Savlnos Examplp.: " $1500 refund check to you x .50 = $750 savings/one lime fee. " Ills agreed we will not ulillze your recommendations or Implement your ideas without payment of your fee and notification to you. This non-circumvention provision Is integral to this agreement and shall be eHective for a two year period after Ihe delivery of your findings. Laslly. it is agreed and undernlood that this contract is governed by the laws of the State of Pennsylvania and any action commencing hereunder shall be brought in the counly of Cumberland. Furthenmore, we represent that the person signing is authorized to engage your services. We hereby acknowledge receipt of a copy of lhis agreement, and if we breach Ihis contract. we will pay all reasonable court and legal cos1s you Incur due to such breach. Accepted by: WORLDWIDE TELECOMMUNICATIONS, INC. 125 NORTH ENOLADRIVE Name: SUITE 205 ENOLA, PA 17025 Signed It;.,,, (F-:;.,d,-~ Date-----"" I ,I,'; 'i-; - 1 . !dlW: For and on behalf of'l3ru./, f1 C2nr on rd b, on I Contact Narnel2:i:hIf'~I~ Title OS;\ ;:y,rJ. S..., Signature:~ A 1~.~ Address f) (). - /-ly 'N~ Tn'11",~('Y)I,<; xn 4/,0.::;1.01.0 , I EXHIBIT "A" WORLDWIDE TELECOMMUNICATIONS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-294 Civil Term v. CIVIL ACTION-LAW THE BRULIN CORPORATION, Defendant JURY TRIAL DEMANDED PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS MADE UPON DEFENDANT - FIRST SET pursuant to pennsylvania Rule of civil procedure 4009, plaintiff hereby requests production of the following documents by Defendant by forwarding true and correct copies thereof to the undersigned at the address indicated below within 30 days after service of this request. 1. For each long distance carrier The Brulin corporation switched to subsequent to December 11, 1995, the entire telephone bill from each such long distance carrier for the first 12 months, or if the long distance carrier has not been utilized for 12 months, then for each month the long distance carrier has been utilized. 2. For each long distance carrier with whom The Brulin Corporation renegotiated its long distance rates subsequent to December 11, 1995, the entire telephone bill from each such long distance carrier for the first 12 months after the renegotiation, or if 12 months have not transpired since the renegotiation, then the entire telephone bill for each month after renegotiation. 3. A copy of the entire long distance telephone bill for The Brulin Corporation most recently received from each long distance carrier utilized by The Brulin Corporation as of the date of this request for documents. . WORLDWIDE TELECOMMUNICATIONS, INC., Plaintiff IN THE COURT OF SOMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-294 Civil Term ! v. CIVIL ACTION-LAW THE BRULIN CORPORATION, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE The undersigned certifies that on the day indicated below he served a true and correct copy of the foregoing Request for Production of Documents on The Brulin Corporation. Service was accomplished by depositing the same in the United States Mail, first class, postage prepaid and addressed as follows: The Brulin Corporation P.O. Box 270 Indianapolis, Indiana 46206 YOFFE & YOFFE, P.C. DATE: July 28, 1997 ~!/ ,,/1. fl7 'l:/fL ,/JEFF Y'N. YOFFE, ESQUIRE Attorney for plaintiff 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933 int.er.be to '0/) 1:-> ('":. c,:, '0"1 r, , i'; -., r;. , ,'- j~.' 'n , 'J l ~, ''', 'r' I; ~i} .. ~ .jr"n ~ . :q -, CO -- WORLDWIDE TELECOMMUNICATIONS, INC., J?.laintiff~ ..1../:.1.. ~\J IJLtl~h/ll 3/. (IIt,{tL PA f7U ~() v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. f(7 .;J9t/ CIVIL ACTION-LAW ()~'~I~- THE BRULIN CORPORATION. Defendant JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO: The Prothonotary of Cumberland County: Please issue a Writ of Summons against the Brulin corporation which has an address of P.O. Box 270, Indianapolis. Indiana 46206. YOFFE 203 pcompla.wt2 WORLDWIDE TELECOMMUNICATIONS. INC., Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION . LAW v. THE BRUUN CORPORATION, Defcndant : NO. 97-<l294 CIVIL TERM DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL AND NOW. comcs the Defendanl, The BruUn Corporation, by and through its attorncys. Eckert Seamans Cherin & Mclloll, LLC, and files thc following response to Plaintifrs Motion to Compel: 1. The above-captioned action was commenced on January 17. 1997 by the Plaintiff, Worldwide Telecommunications, Inc. ("wrC") against the Brulin Corporation ("Brulin") via a Writ of Summons (the "Writ"). 2. As of the dale hereof. no complaint has been filed by mc in the above- captioned matter. 3. Six months after the filing of the Wril, mc. on July 28. 1997. mailed to Brulin the interrogatories and the request for production of documents which are attached to thc Motion to Compel as Exhibit "A;" said discovery request does not purport to be necessary for the preparation of a complaint. 4. Although mc has yet 10 file a complaint, it is believed that the subject of the dispute In the above-captioned aClion involves wrC's belief that it is entitled to a sum of money from Brulln pursuant 10 a "Guaranteed Savings--Contingency Only Consulting Fee . enforceability and validity of the Consulting Fee Agreement, and the rights and obligations of Brulin and wrc, if any, thereunder. IS. ludicial economy dictates that Brulin not be compelled to respond to discovery requests in Pennsylvania and should not be compelled to litigate in Pennsylvania pending resolution of the Indiana Action. D. IURISDICTION IS NOT PROPER IN PENNSYLVANIA. 16. Brulin is a corporation organized and existing under the laws of the State of Indiana, and maintains its principal place of business in Indianapolis, Marion County, Indiana. 17. wrc is a corporation maintaining its place of business in Enola, Pennsylvania. wrc routinely and frequently does business in Indiana by the use of the U.S. Mails to send written communications to persons in Indiana and by initiating telephone calls to persons in Indiana. 18. With respect to the Consulting Fee Agreement, wrc contacted Brulin in the Slate of Indiana via telephone to solicit Brulin's business. 19. With respect to the Consulting Fee Agreement, wrc sent letters through the U.S. mail to Brulin concerning the Consulting Fee Agreement. 20. The Consulting Fee Agreement was signed in the Stale of Indiana. 21. To the extent that Brulin has any contact with the Commonwealth of Pennsylvania, said contact is ~ minimis and Brulin has done nothing through the Consulting -4- 27. The Indiana Action challenges the existence and enforceability of the Consulting Fee Agreement; consequently, the enforceability and validity of the forum- selection clause also has been challenged. 28. It would be patently unfair and unconscionable to compel discovery in Pennsylvania and permit WTC to litigate its claim in Pennsylvania by virtue of the forum selection clause where the Indiana Action seeks to nullify the same. 29. The forum selection clause fails to state with sufficient clarity and particularity the precise jurisdiction to which the parties purportedly agreed to be subject, insofar as it merely stales that "any action commencing hereunder shall be brought in the county of Cumberland;" as a result, said clause is unenforceable, unreasonable and fails to satisfy the due process requirements of both the Federal Constitution and the constitution of the Commonwealth of Pennsylvania. III. WTC'S DISCOVERY REQUEST IS IMPROPER 30. WTC has not filed a complaint in this mailer. 31. WTC has not indicated that the interrogatories and request for production of documents are necessary to assist WTC in drafting the complaint. 32. Insofar as WTC has filed an answer in the Indiana Action to the complaint filed therein by Brulin, it is believed, and therefore averred, that WTC has sufficient facts to draft a complaint and that the requested discovery is not necessary for such purpose. See e.g., Anderson v. PennDot, 47 D & C 429, 431 (C.C.P. Cumberland County, Judge Bayley, -6- t , .1. , I ! A r-- @ i i I j I i I I i , . : j ~ , . . I Worldwide Telecommunications, Incorporated 125 North Enola Drive, Suite 205 Enola, PA 17025 .1 .1 Guaranteed Savinos _ Contlnaenc'J Onlv Consultino Fee AQreement Dear Worldwide Telecommunications: We hereby appoint you to audit our local and long distance telecommunications vendor Invoices in order far you to make cost savings recommendations to our finn. It is agreed you will anaiyze our expenses in their entirety and research in detaillhe Federal Communications commission local and long distance carrier tariffs of our local phone company and the relevant long distance carrlern. II is agreed you will offer us a detailed proposal offering the broadest and most comprehensive range of telecommunications savings and rate recommendations possible ulillzing our choice of tariffs and carrlern. It is understood and agreed that you will be working on a strict no-risk contingency fee basis and that your consulting fee will be the first three month's sailings. After the firSt three month's. 100% of the long term savings are ours to keep, Since savings are guaranteed by you to occur, if there are no savings realized by us, their is t!l.Q. fee due to you. One-time refunds of pas1 tariff overbillings will bd shared on a SO/50 basis upon collection. Cost savings will be calculated according to the following formulas: Cost Reduction Savinas Examole: ,22 cents current cost per minute. .09 cents new cost per minute = .13 cents per minute gross savings .13 cents per minute gross savings x 8,000 minutes of calling 1st month = $1040 one-month savings $ 1 040 fee due month one. " Refund Savin os Examolp.: $1500 refund check to you x .50 = $750 savings/one time fee. II is agreed we will not utilize your recommendations or implement your ideas without payment of your fee and nolificalion to you. This non-circumvention provision is integral to this agreement and shall be effecllve for a two year period after the delivery of your findings. Lastly, It is agreed and unders100d that this contract is govemed by the laws of the State of pennsylvania and any action commencing hereunder shall be brought in the county of Cumberland. Furthenmore, we represent that the pernon signing is authorized to engage your services. We hereby acknowledge receipt of a copy of this agreement, and If we breach this contract. we will pay all reasonable court and legal cos1s you Incur due to such breach, Accepted by: WORLDWIDE TELECOMMUNICATIONS, INC. 125 NORTH ENOLADRIVE Name: SUITE 205 ENOLA, PA 17025 Signed 1>'1,.' (~~ Dat~ 1,1,';';.; - - 1 ~: For and on behalf of~ru.11 f1 l'rr pn r<", b, on contactName~If'-:-BI~TllIe os;{ ~rJ. Sw., ~~;,~~;~~~".DlP EXHIBIT "A" communications to persons in Indiana and by initiating telephone calls to persons in Indiana. 4. Venue and jurisdiction lie in the state courts of Indiana located in Marion County, Indiana. 5. Upon information and belief, WTC is not and has never been registered to do business in Indiana as a foreign corporation. 6. WTC contends that on December 11, 1995, the parties entered into a contract by their execution of a certain document entitled "Guaranteed Savings - Contingency Only Consulting Fee Agreement," a true and accurate copy of which is attached hereto as Exhibit A ("Consulting Fee Agreement"). The Consulting Fee Agreement was a form document which WTC had previously provided to Brulin at its office in Indianapolis, Marion County, Indiana. 7. On May 3, 1996, WTC mailed a purported invoice to Brulin, demanding payment of $15,000, a true and accurate copy of which is attached hereto as Exhibit B. 8. On May 6, 1996, a Muncie attorney, Donald H. Dunnuck, sent a demand letter to Brulin, asserting that Brulin was liable under the terms of the Consulting Fee Agreement and demanding payment of $15,000. A true and accurate copy of Donald Dunnuck's letter of May 6, 1996, is attached hereto as Exhibit C. 9. WTC wrongly contends that WTC performed valuable services to Brulin, that these services were authorized under the terms of the Consulting Fee Agreement, and that Brulin was benefited by such services. u-uuu -2- 10. Brulin contends that it is not liable to WTC, because WTC did not perform the services described in the agreement, that WTC did not perform services which were valuable to Brulin and that Brulin did not use any advice or information provided by WTC in subsequently changing its telephone carrier. 11. Brulin also contends that the parties did not reach a meeting of the minds sufficient to render Exhibi~ A to represent the terms of an enforceable contract of the nature asserted by WTC in its demands. 12. To the extent that Exhib;~ A represents an enforceable contract, Brulin contends that WTC breached such agreement in various ways by (1) failing to provide new auditing, analysis, recommendations and proposals with respect to Brulin's own telephone usage and past invoices, (2) failing to maintain independence from telephone service providers, (3) failing to permit Brulin to make its own independent selection of telephone service providers, and (4) by failing to honor and be bound by Brulin's determination that Brulin had not realized any savings from the information or services provided by WTC. 13. A dispute presently exists between the parties as to the existence of a contract or agreement between the parties and as to the validity and enforceability of WTC's claim. WHEREFORE, Plaintiff, The Brulin Corporation, requests the Court to enter a declaratory judgment providing the following relief: A. Declaring that there is no valid and enforceable contract existing between Brulin and WTC. ".uun -3- B. Declaring that Brulin is not obligated to pay money or compensation of any kind to WTC with respect to the claims made by WTC in its various demands or with respect to any other claims. C. To the extent that a contract was formed between Brulin and WTC, declaring that Brulin did not breach such .::ontract. D. To the extent that a contract was formed between Brulin and WTC, declaring that WTC breached such contract. E. Granting Brulin all other relief deemed just and proper in the premises. COUNT II -- ACTION FOR FRAUD AND RESCISSION 14. Plaintiff incorporates by reference Paragraphs No. 1 through 13 alleged above. 15. Prior to December 11. 1995, agents of WTC made proposals to Brulin which included representations as to the nature. usefulness and value of services commonly provided by WTC to its clients in its usual and ordinary business practices and procedures and also made representations as to the content of its form agreement. 16. During these proposals, WTC's agents distributed a document entitled. "Just A Brief Review. ..... a true and accurate copy of which is attached hereto as Exhibit D, which made the following representations of fact: a. "We are Carrier Inde~endent - Our only allegiance is to you. . b. "We can save you 30%-60% of your phone bill without you changing carriers.' c. "[T]his is MQI a solicitation for long distance business.' d. "We have been instrumental in providing refunds to companies like yours.' SS~l"U' -4- e. "We are absolutpl', risk free - We charge no money up frone. Our ~ fees are a perceneage of ehe money ~ agrpP we have saved you." f. "WE D~~IVER FIRST - With no risk, obligation, or commitment on your part we: Audit your phone bills Analyze your traffic patterns Compare your traffic patterns against our tariff data base Seek out the special tariffs you are entitled to Present you with multiple proposals showing you what your costs should be on all major carriers, including your existing carrier" 17. Duri~g their business proposals, WTC's agents distributed a document entitled, "HOW TO GET STARTED", a true and accurate copy of which is attached hereto as Exhibit ~, which made the following representations of fact: a. "You have no obligation no risk at this poine. This merely says that if vou choose to execute our proposals or receive a refund, you will pay us in accordance with the agreement." b. "This enables us to begin your free audit. You still have no risk nor obligation at this poine." c. At this point you choose the option that's best for your company. When you take advantage of one of our proposals, or receive a refund, your only obligation is to pay us in accordance with the Contingency Fee Agreement. If for some reason, you choose not to act [on] any of our proposals, you have incurred NO RISK, NO COSTS and NO OBLIGATION." 18. The representations of fact expressed by WTC are false because they do not accurately describe WTC's business proposals, business practices or the content of the Consulting Fee Agreement. 19. The Consulting Fee Agreement contained a so-called "non-circumvention provision" in the following language, which WTC did not disclose in its sales presentations: .u.uuu -5- -.-....--.. ..._-_..-..... .. "It is agreed we will not utilize your recommendacions or implement your ideas without payment of your fee and notification to you. This non-circumvention provision is integral to this agreement and shall be effective for a two year period after the delivery of your findings." 20. Within one day of WTC's execution of the Consulting Fee Agreement, WTC sent to Brulin a letter dated December 12, 1995 (a true and accurate copy of which is attached hereto as Exhibit F, which asserted that WTC had already completed 80% of "the tariff review, traffic pattern analysis, geographic analysis, time of day analysis, call type analysis, volume discount work-ups, current promotionals and special tariff studies, as we~l as special customer agreements review work.' Exhibit ~ scates that only "manual steps' remained to be performed and included certain cursory "recommendations' and documents dated in 1992. Exhibit F demonstrates that WTC lacked the intention to perform a new analysis of Brulin's telephone needs. 21. Additionally, Exhibic ~ states that WTC had "initiated a Competitive Proposal Response (CPR) and negotiation with your current carrier) ." WTC' s intent to contact and negotiate with Brulin's telephone provider was not disclosed in the Consulting Fee Agreement or the previous disclosures and had not been authorized by Brulin. 22. On December 22, 1995, WTC sent to Brulin a lengthy document entitled "A Cost Reduction Savings Proposal" ("Final Proposal"), which contained numerous statistics and which repeated verbatim many of the same statements contained in the letter of December 12, 1995 Exhibit F. ".u,.., -6- 23. Although, Brulin had no obligation under the Consulting Fee Agreement to make any changes in its telephone se~lice, WTC's agents repeatedly pressured Brulin over the next several months to change its telephone carrier, thus breaching the intent of the Consulting Fee Agreement that Brulin was not required to change its carrier. 24. In late 1995 or early 1996, WTC's agent, Robert Schaner, began pressuring Brulin to switch its telephone service to a carrier known as LDDS, even though Brulin had no obligation to switch carriers at all. Upon information and belief, WTC and LDDS were affiliated in some manner which was not disclosed by either WTC or LDDS. 25. Despite WTC's representation that the Consulting Fee Agreement contained no risk until Brulin had agreed that it had obtained savings from WTC's proposals, WTC interprets the Consulting Fee Agreement in a manner which created substantial risk to Brulin from the moment such agreement was executed, as follows: a. Immediately upon WTC's execution of the Consulting Fee Agreement, WTC mailed Brulin a previously-prepared form letter along with a cursory list of alleged telephone tariffs. Because this information was admittedly incomplete, the information was useless to Brulin. Thus, the only conceivable purpose for WTC's immediate mailing of this document was to set the stage for WTC's later claim that any change in telephone service whatsoever would be the result of acquisition of information from WTC, regardless of the true reasons for such change, especially because WTC was aware that Brulin was already evaluating the possibility of a carrier change. Thus, in this manner, WTC intended to gain the advantages of an exclusive agreement, while the Consulting Fee Agreement does not grant WTC the exclusive right to provide services. SJ-lIun -7- t . i b. Also, WTC apparently claims that the "non-circumvention provision" operates to rest:rict Brulin 1 s ability to switch telephone carriers :or two years into the future. This interpretation contradicts WTC's previous representations that its :orm contract and business practices created no risk, obligation or commitment. c. Also, the demands placed upon Brulin by WTC are inconsistent with WTC's previous representation in Exhib;t D that "Our ~ fees are a percentage of the money you a9'ree we have saved you." WTC' s present demands do not rest upon any acknowledgment by Brulin that Brulin received savings from information or services provided by WTC. This risk was not disclosed by WTC prior to the execution of the Consulting Fee Agreement. 26. WTC's actions, as alleged herein, constitute fraud, fraudulent concealment and failure to disclose facts material to the transaction. Additionally, to the extent a contract was formed, WTC's actions, as alleged herein, constitute fraudulent inducement of a contract and breach of contract. 27. To the extent a contract was formed, Brulin is entitled to rescission of the contract. WHEREFORE, Plaintiff prays for judgment against Defendant, an award of damages in an amount suf:icient to compensate him for his injuries received, punitive damages, interest, costs and alternatively requests the Court to rescind and cancel any contract formed between the parties, to release Brulin form any obligations under such a contract, and requests all other relief deemed just and proper in the premises. Respectfully submitted, Davi E. Wright, , Ronald G. Sent n, #2109-49 Attorneys for The Brulin Corporation ss-uu., -8- I C I r-" @ . ! r ! . . i I ! ~ STATE OF INDIANA COUNTY OF MARION IN THE MARION SUPERIOR COURT SS: CIVIL DIVISION ROOM NO. THE BRULIN CORPORATION, Plaintiff, v. CAUSE NO: 49D03-9710-CP-1464 WORLDWIDE TELECOMMUNICATIONS, INC. , Defendant. DEFENDANT'S ANSWER Comes now the Defendant, Worldwide Telecommunications, Inc., through its undersigned attorney, and for its Answer and Affirmative Defenses, allegeR and states the following. COUNT I: DECLARATORY JUDGEMENT ACTION I. That the Defendant generally denies the allegations in Count I of the Plaintiff's Complaint, Declaratory Judgement Action. WHEREFORE, the Defendant, by counsel, respectfully requests this Court to rule that the Plaintiff take nothing by way of its Complaint and for all other relief just and proper in the premises. COUNT II: ACTION FOR FRAUD AND RESCISSION 2. That the Defendant generally denies the allegations in Count II of the Plaintiff's Complaint, Action For Fraud and Rescission. WHEREFORE, the Defendant, by counsel, respectfully requests this Court to rule that the Plaintiff take nothing by way of its Complaint and for all other relief just and proper in the premises. FIRST AFFIRMATIVE DEFENSE 3. That this Court lacks personal jurisdiction over the Defendant. WHEREFORE, the Defendant, by counsel, respectfully requests . - this Court to rule that the Plaintiff take nothing by way of its Complaint and for all other relief just and proper in the premises. SECOND AFFIRMATIVE DEFENSE 4. That this Court lacks subject matter jurisdiction in this matter. WHEREFORE, the Defendant, by counsel, respectfully requests this Court to rule that the Plaintiff take nothing by way of its Complaint and for all other relief just and proper in the premises. THIRD AFFIRMATIVE DEFENSE 5. That the venue is improper in this Court. WHEREFORE, the Defendant, by counsel, respectfully requests this Court to rule that the Plaintiff take nothing by way of its Complaint and for all other relief just and proper in the premises. FOURTH AFFIRMATIVE DEFENSE 6. That an action with the same parties and the same subject matter has already been filed in a Pennsylvania state court I County of Cumberland, and all issues should be disposed of in said court. WHEREFORE, the Defendant, by counsel, respectfully requests this Court to rule that the Plaintiff take nothing by way of its Complaint and for all other relief just and proper in the premises. Respectfully submitted I d~l~~ Mitchell E. Pipp~n, '19155-18 Attorney for Defendant DUNNUCK & ASSOCIATES 114 South Walnut Plaza Muncie, IN 47305 (765) 289-7379 " . ,..., '.') ( .::) r) ,. 'I (.- , '. " ") ". I"~ '''::';'' ;111 J :") f') " ., .i,/ .~: :, , ,jlJ , :..> , '" .~ :..~.i ""