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A. MARK WINTER
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2. Defendant, Frank Deitch is an adult individual who
resides in Cumberland County.
3. Defendant, Frank Deitch is now or at all relevant times
in the past traded and did business as Deitch Brothers Pest
Control, a Pennsylvania Partnership comprised of Frank Deitch and
Samuel Deitch, having its principal place of business at 433
Ponderosa Road, Carlisle, Pennsylvania 17013.
4. Defendant, Frank Deitch is now or at all relevant times
in the past traded and did business as Penn Pest of Carlisle,
Inc., a Pennsylvania partnership comprised of Frank Deitch and
Samuel Deitch, having its principal place of business at 433
Ponderosa Road, Carlisle, Pennsylvania 17013.
5. The License and Consulting Agreement, (Attached as
Exhibit "AH), personally executed by both Frank Deitch, the
defendant in this action, and his brother Samuel Deitch is a true
and correct reproduction of the original.
6. The confession of judgment in this matter is not being
entered against a natural per~on in connection with a consumer
credit transaction.
7. The confession of judgment in this matter has not been
assigned.
8. No judgment has pteviously ~een entered on the
instrument attached as Exhibit "A.H
2
9. Confession of judgment is authorized by the instrument
if the Defendant, Frank Deitch, has failed to comply with the
terms of the License and Consulting Agreement.
10. The Defendant, in direct violation of the License and
Consulting Agreement, began operating a competing pest control
business.
11. The Defendant, in direct violation of the License and
Consulting Agreement, has failed to return the accounts and
customer list of Deitch Brothers Pest Control for which the
Plaintiff gave the Defendant an eight thousand dollar ($8,000.001
credit against the purchase price of the license.
12. The following is an itemized computation of the amount
due from the Defendants to the Plaintiffs:
a) Value of Accounts and Customer List
bl Attorney's Commission
c) Filing Fee
TOTAL:
$8,000.00
800.00
14.50
$8,814.50
WHEREFORE, the Plaintiffs respectfully request that this
court order judgment against the Defendant in the amount of
$8,814.50, pursuant to the ter~s of the executed license and
consulting agreement (Exhibit ~A-l.
1
"
LICENSB AND CONSULTING AGRBEMENT
BY AND AMONG
PENN PEST. INC.
AIm
PBNN PBST OF CARLISLB. INC. AND DBITCH BROTHERS PBST CONTROL
THIS LICENSE AND CONStlLTING AGREEHENT t"LlceJll3&. Agreement" or
'Z 41 ....r.I(~ N'S" "1rJY tlI)..';rT
"Agreement") is made this ~- day of March, 1995, by and among
PENN PEST, INC., a Pennsylvania corporation, having its principal
place of business at 4601 Locust Lane, Harrisburg, Pennsylvania,
17109, ("Licensor"), and PENN PEST OF CARLISLE, INC., a
Pennsylvania corporation, having its principal place of business at
433 ponderosa Road, Carlisle, Pennsylvania 17013, and DEITCH
BROTHERS PEST CONTROL, a Pennsylvania partnership, having its
principal place of business at 433 Ponderosa Road, CarliSle,
Pennsylvania, 17013, (singularly and collectively hereinafter
"Licensee") (all three parties singularly "Party" and collectively
"Parties") and provides that:,
RECITALS:
WHEREAS, Licensor is in the business of providing teraite and
pest control services and providing logistical support and
consultation to other similar businesses: and
WHEREAS, Licensor haa developed. good reputation and buaine..
goodwill within its co.-unity I and
WHEREAS, Licensor is the proprietor of the trade name "Penn
Pest, Inc." ("Trade Name"): and
WHEREAS, Licensee desires to acquire a license for the right
to use Licensor's Trade Name, Trademark and Logo in parts of
CUmberland County as defined hereinafter, and have access to
Licensor's business expertise; and
WHEREAS, Licensor hereby agrees to permit Licensee to use its
Trade Name, Trademark and Logo in parts of CUmberland County as
defined hereinafter, and further agrees to provide consulting
services in accordance with the terms and conditions set forth
below;
NOW THEREFORE, in consideration of the mutual covenants and
promises set forth herein and with the intent to be legally bound
hereby the parties do agree as follows:
I. LICENSE. This license includes the exclusive use of the
Licensor's Trade Name, Trademark, Logo and the Licensor's support
service. within the Territory as defined hereafter (-License-).
II. PURCHASE PRICE OF LICENSE. Licensee shall pay to
;,icensor Seven Thousand Dollars ($7,000.00) for the purchase of the
Llcense. The Purchase price is to be paid in the fon of a IIOnthly
pa)'1lent, the first of each month, for a t"enty-four (2.) month
period. The first payment is due and payable on April 1, 1995.
All pa}'1lenta are to be ..de in person at or by ..11 t.o UOl LocUst.
Lane, Harr1sburl), PI. (-corporate Offices-) or as the location ..y
be chanqed froll thle to tin.
, "
I II . PURCHASE OF DEITCH BROTHERS PEST CONTROL ACCOUNTS.
Licensor shall credit Licensee the sum of Eight Thousand Dollars
($8,000.00) for the purchase of all DEITCH BROTHERS PEST CONTROL
accounts in one lump sum at the time of execution of this
Agreement.
IV. LICENSE FEE. Licensee shall pay Licensor a license fee
of ten (10) per cent of the gross income, payable weekly. It is
agreed that Licensor shall commit and utilize two (2) per cent of
the license fee for advertising as a part of the support services
provided for herein.
V. TERRITORY. This License Agreement grants to Licensee
exclusive use of the License within the County of CUmberland,
Pennsylvania, specifically excluding however, all of the Borough of
Mechanicsburg and the area East of Route 114 ("Territory").
Licensor agrees not to grant the right to use Licensor's Trade
Name, Trademark and Logo to any other 'licensee within the said
Territory while this License and Consulting Agreement remains in
effect. Licensee shall have the ri9ht but not license to operate
his business in other counties east of CUmberland County. However,
in the ev.nt that Licensor grants any entity a license to operate
in counti.s other than CUmberland county, Licensee agr..s to
automatically c.ase doing business in those counties.
VI. EXCLUSIVE LIc~HSE.
A. This License i. qranted by Lic.nsor exclusively to
Lic.n.... It..y not be .old, assigned, or transferred to any
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third party without Licensor's express written approval, which
approval shall not be unreasonably withheld.
B. In the event that the License is sold, assigned or
transferred, the Licensor shall receive a fee in an amount not to
exceed three thousand dollars ($3,000.00).
VII. USE OF TRADEMARKS.
A. Whenever the Licensee uses the Trade Name, Trademark or
Logo in advertising or in any other manner in connection with the
goods or services which it sells, distributes, or provides, the
Licensee shall clearly indicate the Licensor's ownership thereof.
The Licensee shall provide the Licensor with samples of all
literature, packages, labels, labelling and advertising prepared by
or for the Licensee and intended to be used by Licensee. When
using the Trademark under this Agreement, the Licensee undertakes
to comply with all laws pertaining to trademarks in force at any
time in the Territory, including, but not limited to, compliance
with marking requirements.
B. Licensee's apparel shall be in accordance with the
Licensor's uniform of navy blue slacks and white shirts with the
Licensor's Logo prominently displayed thereon unless and until a
uniform change is made by the Licensor. Licensee's vehicles shall
be either navy blue or white in color and placarded with Licensor's
Logo, unless and until a Change is made by Licensor.
VIII. LOGISTICAL AND CONSULTING SUPPORT. The Licensor a9ree.
to provide the fOllowing support to the Licen.ee:
A. telephone answering .ervice.t
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B. all calls generated from advertised phone numbers will be
routed directly to the Corporate Offices with charges for
calls paid by the licensee:
C. billings, including collection of accounts receivable;
D. training:
E. assist in account development;
F. advertising placement;
G. assist in obtaining insurance:
H. purchase of inventory and equipment at Licensor's cost;
I. assist in licensing procedures; and
J. any other services Licensor wishes to make available to
Licensee.
IX. LIMITED RIGHT TO PROSPECTIVE CUSTOMERS. In the event
that there are any prospective customers ("Leads") in the Territory
and the Licensee tor whatever reason decides not to submit a
proposal to or accept the Lead as a customer, then Licensee agrees
to permit Licensor the limited right to operate within the licensed
Territory for the sole purpose of submitting a proposal to and/or
servicing the Lead. License. agrees to waive all rights under this
Agreement to service the Lead.
X. INDEMNITY. The Licensor assum.. no liability to the
License. or to third parti.s with respect to the perfonaance
characteristics of the qooda or service. provided by Lieen.ee under
the Trade Na.., Trad.aark. or Lo9o or to the u.. of the Trad. H....
Tradeaark. or Lo9o in the Territory. and the Lic.n... h.reby
Indeanifi.. and hold. hanl... the Licensor against aU loss..,
d...g... and .xpen.... Inclu41nq attorney'. f.... incurred a. a
.,-
result of or related to claims of Licensee or third persons
involving the manufacture of the goods; sale of the goods by
Licensee or services by Licensee or use of the Trade Name,
Trademark, or Logo by Licensee.
XI. RIGHT TO AUDIT. complete and accurate accounts of all
transactions of the Licensee shall be kept in proper books of
accounting. Such books of account and other records of the
Licensee shall, at all times, be kept in the place of business of
the Licensee and Licensor shall have access to and may, upon giving
reasonable notice, inspect and copy any of them for purposes of
determining Licensee's gross income.
XII. TERMINATION.
A. Except as otherwise provided herein, this Agreement shall
remain in full force and ettect from the first day Licensee
operates his business.
B. Criminal Proceedinas. If the Licensee or its officers are
convicted in a criminal proceeding of any wrongdoing arising from
the operation of the business, the Licensor may immediately
terminate this License.
c. CiVil Proceedinas. If a monetary judC)l\lent is entered
against the Lic.ns.. as the r.sult of any litigation in any civil
proceeding arising from the operation of the business, which would
advers.ly affect the business reputation of Licensor, "the Licensor
may i..ediately terminate this License.
D. NQnoerforaance. Should the Licens.. tail to comply with
any provision of this Aqr....nt, the Licensor aay t.rminat. this
Aqre...nt upon thirty (10) days written notice to the Licen...,
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provided that the Licensee has not corrected such default during
the notice period.
E. Assianment: ReceivershiD: BankruDtcV. If the Licensee
makes any assignment of assets or business for the benefit of
creditors, or if a trustee or receiver is appointed to administer
or conduct its business or affairs, or it is adjudged in any legal
proceeding to be either voluntary or involuntary bankrupt, or if
any portion of the Licensee's business is awarded to a third party,
then all the rights granted herein shall forthwith cease and
terminate without prior notice or legal action by the Licensor.
F. Involuntarv Dissolution. Upon the occurrence of
involuntary dissolution of any sort including, but not limited to,
death or permanent disability, Licensee shall give a right of first
refusal to Licensor to buy back all assets of the business
including, but not limited to, accounts, accounts receivable,
inventory, furnishings, fixtures, equipment, leases and all other
relevant items at such terms and conditions as the Parties may
agree. In the event Licensor does not wish to exercise this right
of first refusal, the Licensee may liquidate its assets by selling
to the general public.
G. If Licensor terminates the License for just cause, as
provided for in this section XII B. through E., the accounts,
accounts receivable, work in progress and customer lists of the
Licensee shall automatically become the property of the Licensor.
Additionally, the Licensor in the event that Licensee s.lls the
business shall have the right of first refusal to buy back the
remaining ...eU a. provided for at Section XU F. Otherwise, the
physical a.sets of the License. shall r...in its property.
.,.
XIII. CONFESSION OF JUDGMENT. In the event of default by
Licensee, licensee hereby authorizes any attorney or any court of
record in pennsylvania, or elsewhere, to appear for Licensee in any
action brought on this License Agreement and to confess judgment
against Licensee for all sums then due pursuant to the terms of the
License Agreement and for costs of suit and attorney's commission
of ten per cent (10\), together with ten per cent (10\) interest on
any judgment obtained by Licensor after default, including interest
at that rate from and after the date of any Sheriff's sale until
actual payment is made by the Sheriff to Licensor or the full
amount due Licensor, and for so doing this shall be good and
sufficient warrant. Licensee waives and relinquishes all errors,
defects, and imperfections in the entry of judgment as aforesaid,
or in any proceeding pursuant thereto, and all benefits under any
law or rule of court relating to a stay of execution or exempting
any property from levy or sale under execution. The authority
herein granted to confess judgment shall not be exhausted by any
exercise thereof but shall continue from time to time and at such
times until all obligations of License. to Licensor have been fully
discharged.
XIV. OWNtl:RSHIP or 'I'llADnARK. The Licensee acknowledge. the
Licensor's exclusive right, title and interest in and to the Trade
Nam., Trademark, and Logo and will not at any tiee dO or cause to
be done any act or thinq contesting or in any way impairinq or
tendinq to impair any part of such right, title and interest. In
connection with the use of the Trade "aee, Tradeaark or Logo, the
Licensee shall not in any aanner repr...nt that it has any
ownership 1n the Trade It..., Tradeurlt. or t..ol)O or reqistraUon
-I-
thereof, and the Licensee acknowledges that the use of the Trade
Name, Trademark, or Logo shall not create in the Licensee's favor,
any right, title or interest in or to the Trade Name, Trademark, or
Logo but all uses of the Trade Name, Trademark, or Logo by the
Licensee shall inure to the benefit of the Licensor. Upon
termination of this Agreement in any manner provided herein, the
Licensee will cease and desist from all use of the Trade Name,
Trademark, or Logo in any way (and will deliver up to Licensor, or
its duly authorized representatives, all material and papers upon
which the Trade Name, Trademark, or Logo appears), and the Licensee
shall at no time adopt or use, without the Licensor's prior written
consent, any word or mark which is likely to be similar or
confusing with the Trade Name, Trademark, or Logo.
xv. COVENANT NOT TO COMPETE. Licensee agrees that in the
event that the License Agreement is terminated as provided for
under this Agreement, Licensee will not engage in direct business
competition in a similar retail business, either as an owner,
partner, shareholder, manager, or consultant for a period of two
(2) years from the date of termination of this License Agreement
and within a fifty (50) mile radius of the location of the
principal place of business in CUmberland County.
XVI. PRICING. All retail price. for .ale of merchandi.e and
services by Licensee shall be sUCJqested by Licensor as Part of it.
consultinq .ervice.. License. shall have tull control over the
actual pricing charqed for its sale of merchandise and .ervices
within its license territory.
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XVII. EXECUTION OF DOCUMENTS. Each Party shall, at the
request of the other, execute, acknowledge and deliver any
documents which may be necessary to carry out fully and effectively
the terms of this Agreement.
XVIII. NOTICES. Any notices required or permitted to be
given under this Agreement shall be deemed sufficiently given if
mailed by registered mail, postage prepaid, addressed to the Party
to be notified at its address shown at the beginning of this
Agreement, or at such other address as may be furnished in writinq
to the notifyinq Party.
XIX. ARBITRATION.
A. All claims, disputes, and other matters in question
between the Parties to this License and Consulting Agreement,
arising out of or relating to this Agreement or any breach or
alleged breach of this Aqreement, will be decided by arbitration
unless the Parties otherwise mutually agree in writing.
B. The parties agree upon one arbitrator, otherwise there
shall be three, onCl named in writinq by each Party of this
Agreement within ten (10) days aft.r notice or arbitration is
served by either Party upon the other, and a third arbitrator
selected by these two (~) arbitrators within ten (10) days
thereafter. No one shall serve as an arbitrator who is in any way
financially int.rested in this Agr....nt or in the affaire of
eith.r Party h.r.to.
C. This .qr....nt to .rbitrate shall be specificslly
enforceable under the prevailing arbitr.tion laws. The .Qrd
rendered by the arbltrator(s) will be final end bindi"" end
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judgment may be entered upon it in accordance with the applicable
law in any court that has jurisdiction over the decision.
xx. SUCCESSORS AND ASSIGNS. This License Agreement shall be
binding on the Successors, Heirs and Assigns of each party.
XXI. HEADINGS. The headings are provided for convenience of
identification only and are not to be construed as having any legal
significance.
XXII. PENNSYLVANIA LAW TO APPLY. This Agreement shall be
construed under and in accordance with the laws of the Commonwealth
of pennsylvania and all Obligations of the parties created
hereunder are performable in Dauphin County, Pennsylvania.
XXIII. LEGAL CONSTRUCTION. In the event anyone or more of
the provisions containert in this Aqreement shall for any reason be
held invalid, illegal or unenforceable in any respect, the
invalidity, illegality or unenforceability shall not affect any
other provision thereot and this Agreement Shall be construed as if
such invalid, illegal or unenforceable provision had never been
contained herein.
XXIV. SOLE AGRUM.1:H'l' Qr THE PARTIES. This Aqre...nt
constitutes the .ole and only aCJreeMnt of the Partie. hereto and
supersede. any prior understanding or written or oral a,re..ants
between the 'arti.. respecting the within subject utter.
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xxv. AMENDMENT. Noamendrnent, modification or alteration of
the terms hereof shall be binding unless the same be in writing,
dated subsequent to the date hereof and duly executed by the
Parties hereto.
XXVI. WAIVER OF DEFAULT. No waiver by the Parties hereto of
any default or breach of any term, condition or covenant of this
Agreement shall be deemed to be a waiver of any other breach of the
same or any other term, condition or covenant contained herein.
IN WITNESS WHEREOF the Parties hereto have set their hands and
seals the day and year first written above.
ATTEST:
PENN PEST, INC.
Qj)Y:~(SEAL)
President (Licensor)
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ATTEST:
PENN PEST OF CARLISLE, INC.
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President
(SEAL)
(Licensee)
WITNESS:
DEITCH BROTHERS PEST CONTROL
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Partner
(SEAL)
(Licensee)
WITNESS:
DEITCH BROTHERS PEST CONTROL
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Partner ( icene..)
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PENN PEST, INC., A
PENNSYLVANIA CORPORATION,
PLAINTIFF/RESPONDENT
V.
FRANK DEITCH AND SAMUEL
DEITCH AS INDIVIDUALS;
FRANK DEITCH AND
SAMUEL DEITCH TRADING AS
DEITCH BROTHERS PEST
CONTROL;
FRANK DEITCH AND
SAMUEL DEITCH TRADING AS
PENN PEST OF CARUSLE,
INC., A PENNSYLVANIA
CORPORATION,
DEFENDANTSIPETlTlONER
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
: 97-4329 CIVIL TERM
ORDER OF COURl
AND NOW, this 28th day of August, 1997, upon consideration of the foregoing
petition, IT IS ORDERED:
(1) A Rule is issued against respondent, Penn Pest, Inc., A Pennsylvania
Corporation, to show cause why the petition to strike off or open confessed judgment
should not be granted.
(2) Respondent shall file an answer to the petition within fifteen (15) days of
service.
(3) The petition shall be decided under Pa. Rule of Civil Procedure 206"7.
(4) Ant depositions shall be completed within thirty-five (35) days of service.
(5) Briefs shall be filed in chemb4rs and argument sh8ll be held on Th.nday,
~ 30, 1997. at 130 pm. in Courti'oom No. II of the Cumbel1n! County
~
(6) Notice of the entry of this order shall be provided to all parties by
petitioner.
/'
By/the Court'I)'
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Edgar B. Bayley, J.
A. Mark Winter, Esquire
For Plaintiff/Respondent
Scott D. Moore, Esquire
For DefendanvPetitioner Frank Deitch
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18. As a result, Penn Pest of Carlisle, Inc. was forced to
take over this responsibility.
19. The billing procedures used by Plaintiff were inadequate
and resulted in Penn Pest of Carlisle, Inc. being underpaid.
20. Penn Pest of Carlisle, Inc. was forced to assume
responsibility for its own accounts receivable in order to insure
proper payment.
21. Rather than providing training and expertise for Penn
Pest of Carlisle, Inc., Penn Pest of Carlisle, Inc. provided its
services and technical support to Plaintiff.
22. Plaintiff failed to assist in any meaningful account
development.
23. Plaintiff failed to assist in obtaining insurance.
24. Plaintiff failed to assist in licensing procedures.
25. During 1996. Plaintiff requested that Defendant perform 1
work for Plaintiff and receive a forty (40) percent commission.
26. Defendant performed the requested work.
27. Plaintiff has failed to pay Penn Pest of Carlisle, Inc.
$269.80 for work performed for Penn Pest, Inc.
28. Defendant has made demand for payment and Plaintiff has
refused to pay Defendant.
29. Plaintiff has breached the license and consulting
aqreelllent.
30. Plaintiff has taken possession of the telephone number
for Penn Pest of Carlisle, tnc.
11. Plaintiff has taken possession of the yellow paqe
advertisement of Penn Pest of Carlisle. Inc.
PENN PEST, INC., A PENNSYLVANIA
CORPORATION
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintif f
V.
No. 91- ^I3~9 el..J~l !eRrl
FRANK DEITCH AS AN INDIVIDUAL;
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FRANK DEITCH TRADING AS
DEITCH BROTHERS PEST CONTROL;
CIVIL ACTION
:
FRANK DEITCH TRADING AS
PENN PEST OF CARLISLE, INC., A
PENNSYLVANIA CORPORATION
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Defendant
CCIo!PLAINT
AND NOW, this a.!!L day of August, 1997, comes the
Plaintiff by and through its attorney, A. MARK WINTER, ESQUIRE,
and pursuant to Pa. R.C.P. No. 295l(b), files this Complaint
based upon the following facts and in support thereof aver that:
1. Plaintitt. PENN PEST. We., is a corporation
incorporated in accordance with the laws of the Commonwealth of
Pennsylvania with its principal place of business located at .601
Locust Lane, Harrisburg. Pennsylvania 17109.
.
9. Confession of judgment is authorized by the instrument
if the Defendant, Frank Deitch, has failed to comply with the
terms of the License and Consulting Agreement.
lO. The Defendant, in direct violation of the License and
Consulting Agreement, began operating a competing pest control
business.
1l. The Defendant, in direct violation of the License and
Consulting Agreement, has failed to return the accounts and
customer list of Deitch Brothers Pest Control for which the
Plaintiff gave the Defendant an eight thousand dollar ($8,000.00)
credit against the purchase price of the license.
12. The following is an itemized computation of the amount
due from the Defendants to the Plaintiffs:
a) Value of Accounts and Customer List
bl Attorney's Commission
cl Fi ling Fee
TOTAL:
$8,000.00
800.00_
14.50
$8,814.50
WHEREFORE, the Plaintiffs respectfully request that this
court order judQlllent against the I)Qfendant in the alllOunt of
$8.814.50, pursuant to the terms of the e.ecuted license and
consultinq agreement (Exhibit -A-).
3
EXHIBIT A.
.,
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LICENSE AND CONSULTING AGREEMENT
BY AND AMONG
PENN PEST. INC.
Mm
PENN PEST OF CARLISLE. INC. AND DEITCH BROTHERS PEST CONTROL
THIS LICENSE AND CONSULTING AGREEMENT t"Llce~ Agreement" or
-z~-.:..r.!(~ J...,S"1<JY tld-";l7
"Agreement") is made this ...3- day of Karch, 1995, by and among
PENN PEST, INC., a pennsylvania corporation, having its principal
place of business at 4601 Locust Lane, Harrisburg, pennsylvania,
17109, ("Licensor"), and PENN PEST OF CARLISLE, INC., a
Pennsylvania corporation, having its principal place of business at
433 Ponderosa Road, carlisle, Pennsylvania 17013, and DEITCH
BROTHERS PEST CONTROL, a Pennsylvania partnership, having its
principal place of business at 433 ponderosa Road, Carlisle,
Pennsylvania, 17013, (singularly and collectively hereinafter
"Licensee") (all three parties singularly "Party" and collectively
"Parties") and provides that:"
RECITALS:
WHEREAS. Licensor is in the business of providinq termite and
pest control services and providing logistical support and
consultation to other siailar businesses: and
wUUJI. Licensor haa developed a 9004 reputation and bu.ine..
goodwill within it. co.-unity: and
"I..
WHEREAS, Licensor is the proprietor of the trade name "Penn
pest, Inc." ("Trade Name"): and
WHEREAS, Licensee desires to acquire a license for the right
to use Licensor's Trade Name, Trademark and Logo in parts of
CUmberland County as defined hereinafter, and have access to
Licensor's business expertise: and
WHEREAS, Licensor hereby agrees to permit Licensee to use its
Trade Name, Trademark and Logo in parts of CUmberland county as
defined hereinafter, and further agrees to provide consulting
services in accordance with the terms and conditions set forth
below:
NOW THEREFORE, in consideration of the mutual covenants and
promises set forth herein and with the intent to be legally bound
hereby the Parties do agree as follows:
I. LICENSE. This license includes the exclusive use ot the
Licensor's Trade Name, Trademark, Logo and the Licensor's support
services within the Territory as defined hereafter ("License").
II . rP'RCHASE PRICE OF LICENSE. Licensee shall pay to
Licensor Seven Thousand Dollars ($7,000.00) for t.he purchase of the
License. The Purchase price is to be paid in the fOB of a aonthly
paY'l'ent, the first of each month, for a twenty-four (H) aonth
period. The first payment is due and payable on April 1. 1995.
All para-nta are to be mad. in person at or by aail to .'01 LocUst
Lane, Harrbburq, PA ("Corporate ottices") or as the location aay
b<I cMnqed fro. t1.e to ti...
. "
III. PURCHASE OF DEITCH BROTHERS PEST CONTROL ACCOUNTS.
Licensor shall credit Licensee the sum of Eight Thousand Dollars
($8,000.00) for the purchase of all DEITCH BROTHERS PEST CONTROL
accounts in one lump sum at the time of execution of this
Agreement.
IV. LICENSE FEE. Licensee shall pay Licensor a license fee
of ten (10) per cent of the gross income, payable weekly. It is
agreed that Licensor shall commit and utilize two (2) per cent of
the license fee for advertising as a part of the support services
provided for herein.
v. TERRITORY. This License Agreement grants to Licensee
exclusive use of the License within the County of CUmberland,
Pennsylvania, specifically excluding however, all of the Borough of
Mechanicsburg and the area East of Route 114 ("Territory").
Licensor agrees not to grant the right to use Licensor's Trade
Name, Trademark and Logo to any other 'licensee within the said
Territory while this License and Consulting Agreement remains in
effect. Licensee shall have the right but not license to operate
his business in other counties east of CUmberland county. However,
in the event that Licensor grants any entity a license to operate
in counties other than cumberland County, Licensee agrees to
automatically cease dolng business in those counties.
VI. ncLUSlVE US:ENS!.
A. Thi. Licen.e is qrant.ed by Licensor exelusi"ely to
Lic."..... It oy not be sold. a..i9nH. ur transferred to any
.).
third party without Licensor's express written approval, which
approval shall not be unreasonably withheld.
B. In the event that the License is sold, assigned or
transferred, the Licensor shall receive a fee in an amount not to
exceed three thousand dollars ($3,000.00).
VII. USE OF TRADEMARKS.
A. Whenever the Licensee uses the Trade Name, Trademark or
Logo in advertising or in any other manner in connection with the
goods or services which it sells, distributes, or provides, the
Licensee shall clearly indicate the Licensor's ownership thereof.
The Licensee shall provide the Licensor with samples of all
literature, packages, labels, labelling and advertising prepared by
or tor the Licensee and intended to be used by Licensee. When
using the Trademark under this Agreement, the Licensee undertakes
to comply with all laws pertaining to trademarks in force at any
time in the Territory, including, but not limited to, compliance
with marking requirements.
B. Licensee's apparel shall be in accordance with the
Licensor's uniform of navy blue slacks and white shirts with the
Licensor's Logo prominently displayed thereon unless and until a
uniform change is made by the Licensor. Licensee's vehicles shall
be either navy blue or white in color and placarded with Licensor's
Logo, unless and until a change is made by Licensor.
VIII. L09ISTICAL AND CONSULTING SUpPORT. The Licensor agrees
to provide the followinq support to the Licensee:
A. telephone anllwerinq services:
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B. all calls generated from advertised phone numbers will be
routed directly to the Corporate Offices with charges for
calls paid by the licensee;
C. billings, including collection of accounts receivable;
D. training;
E. assist in account development;
F. advertising placement;
G. assist in obtaining insurance;
H. purchase of inventory and equipment at Licensor's cost;
I. assist in licensing procedures: and
J. any other services Licensor wishes to make available to
Licensee.
IX. LIMITED RIGHT TO PROSPECTIVE CUSTOMERS. In the event
that there are any prospective customers (wLeadsW) in the Territory
and the Lic.nsee for whatever reason decides not to submit a
proposal to or accept the Lead as a customer, then Licensee agrees
to permit Licensor the liaited right to operate within the licensed
Territory for the sole purpose of submitting a proposal to and/or
servicing the Lead. Licensee agrees to waive all rights under this
Agreement to service the Lead.
x. IKDDftfITY, The Licensor .SSUlleS no liability to the
Licensee or to third parties with respect to the perforaance
. characteriatica of the goods or .ervice. provided by Licensee unaer
the Trade M...., Trad....rk, or Loqo or to the use of the Trade If.",
Trad...rk, or Lcqo in the Territory, and the Lieens.. hereby
indean1fie. and holds banI... the l.il:8nsor eqdnat all loa...,
d"aaqe., and expens.., includinq attorney'. f.... inc\lrntd .. a
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result of or related to claims of Licensee or third persons
involving the manufacture of the goods; sale of the goods by
Licensee or services by Licensee or use of the Trade Name,
Trademark, or Logo by Licensee.
XI. RIGHT TO AUDIT. Complete and accurate accounts of all
transactions of the Licensee shall be kept in proper books of
accounting. Such books of account and other records of the
Licensee shall, at all times, be kept in the place of business of
the Licensee and Licensor shall have access to and may, upon giving
reasonable notice, inspect and copy any of them for purposes of
determining Licensee's gross income.
XII. TERMINATION.
A. Except as otherwise provided herein, this Agreement shall
remain in full force and effect from the first day Licensee
operates his business.
B. criminal proceedinas. If the Licensee or its officers are
convicted in a criminal proceeding of any wrongdoing arising from
the operation of the business, the Licensor may i1IImediately
terminate this License.
C. S;ivil proceedinas. If a monetary judgment is entered
against the Licensee as the result of any litigation in any civil
proceeding arising from the operation of the business, which would
adversely affect the busine.. reputation of Licensor, "the Licemsor
may i..ediately terminate this License.
o. lfo.,....rfOrm&m<t. $bO\Ild the Licensee fail to coaply with
any provision of this Aq~..nt. the ticemsor aay terminate this
A~ree.ent \lPOft t!\l~y (30) dap written notice to tit. Licens..,
-,.
provided that the Licensee has not corrected such default during
the notice period.
E. Assianment: ReceivershiD: BankruDtcv. If the Licensee
makes any assignment of assets or business for the benefit of
creditors, or if a trustee or receiver is appointed to administer
or conduct its business or affairs, or it is adjudged in any legal
proceeding to be either voluntary or involuntary bankrupt, or if
any portion of the Licensee's business is awarded to a third party,
then all the rights granted herein shall forthwith cease and
terminate without prior notice or legal action by the Licensor.
F. Involuntarv Dissolution. Upon the occurrence of
involuntary dissolution of any sort including, but not limited to,
death or permanent disability, Licensee shall give a right of first
refusal to Licensor to buy back all assets of the business
including, but not limited to, accounts, accounts receivable,
inventory, furnishings, fixtures, equipment, leases and all other
relevant items at such terms and conditions as the Parties may
agree. In the event Licensor does not wish to exercise this right
of first refusal, the Licensee may liquidate its assets by selling
to the general public.
G. If Licensor terminates the License for just cause, as
provided for in this section XII B. through E., the accounts,
accounts receivable, work in progress and customer lists of the
Licensee shall automatically become the property of the Licensor.
Additionally, the Licensor in the event that Licens_ sells the
business shall have the right of first rerusal to buy back the
reaaininq as.ets as provided for at Section XII r. Otherwise, the
physical assets of the Licensee shall re..in its property.
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XIII. CONFESSION OF JUDGMENT. In the event of default by
Licensee, licensee hereby authorizes any attorney or any court of
record in Pennsylvania, or elsewhere, to appear for Licensee in any
action brought on this License Agreement and to confess judgment
against Licensee for all sums then due pursuant to the terms of the
License Agreement and for costs of suit and attorney's commission
of ten per cent (10\), together with ten per cent (lot) interest on
any judgment obtained by Licensor after default, including interest
at that rate from and after the date of any Sheriff's sale until
actual payment is made by the Sheriff to Licensor or the full
amount due Licensor, and for so doing this shall be good and
sufficient warrant. Licensee waives and relinquishes all errors,
defects, and imperfections in the entry of judgment as aforesaid,
or in any proceeding pursuant thereto, and all benefits under any
law or rule of court relating to a stay of execution or exempting
any property from levy or sale under execution. The authority
herein granted to confess judgment shall not be exhausted by any
exercise thereof but shall continue from time to time and at such
times until all obligations of Licensee to Licensor have been fully
discharged.
XIV. OWNERSHJP OF TRADEMARK. The Licensee acknowledges the
Licensor's exclusive right, title and interest in and to the Trade
Name, Trademark, and Loqo and will not at any time do or cause to
be done any act or thing contesting or in any way impairing or
tending to impair any part of such right. title and interest. In
connection with the use of the Trade Na.., Tradeaark or Logo. the
l.icense. shall not in any unner represent. th.1t it has any
ovnership in the Trade Naa.. Trad..~rk. or Loqo or registration
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.
thereof, and the Licensee acknowledges that the use of the Trade
Name, Trademark, or Logo shall not create in the Licensee's favor,
any right, title or interest in or to the Trade Name, Trademark, or
Logo but all uses of the Trade Name, Trademark, or Logo by the
Licensee shall inure to the benefit of the Licensor. Upon
termination of this Agreement in any manner provided herein, the
Licensee will cease and desist from all use of the Trade Name,
Trademark, or Logo in any way (and will deliver up to Licensor, or
its duly authorized representatives, all material and papers upon
which the Trade Name, Trademark, or Logo appears), and the Licensee
shall at no time adopt or use, without the Licensor's prior written
consent, any word or mark which is likely to be similar or
confusing with the Trade Name, Trademark, or Logo.
xv. COVENANT NOT TO COMPETE. Licensee agrees that in the
event that the License Agreement is terminated as provided for
under this Agreement, Licensee will not engage in direct business
competition in a similar retail business, either as an owner,
partner, shareholder, manager, or consultant for a period of two
(2) years from the date of termination of this License Agreement
and within a fifty (!SO) mile radius of the location of the
principal place of business in cumberland County.
XVI. PRICINC. All retail prices for sale of merchandise and
services by Licen..e shall b. suggested by Licensor as part of its
consulting s.rvices. Licensee shall have full control over the
actual pricing charqed for its .ale Of lIl.rchandise and services
within its license territory.
..t-
XVII. EXECUTION OF DOCUMENTS. Each Party shall, at the
request of the other, execute, acknowledge and deliver any
documents which may be necessary to carry out fully and effectively
the terms of this Agreement.
XVIII. NOTICES. Any notices required or permitted to be
given under this Agreement shall be deemed sufficiently given if
mailed by registered mail, postage prepaid, addressed to the Party
to be notified at its address shown at the beginning of this
Agreement, or at such other address as may be furnished in writing
to the notifying Party.
XIX. ARBITRATION.
A. All claims, disputes, and other matters in question
between the Parties to this License and Consulting Agreement,
arising out of or relating to this Agreement or any breach or
alleged breach of this Agreement, will be decided by arbitration
unless the parties otherwise mutually agree in writing.
B. The Parties agree upon one arbitrator, otherwise there
shall be three, one named in writing by each Party of this
Agreement within ten (10) days after notice of arbitration is
served by either Party upon the other, and a third arbitrator
selected by these two (21 arbitrators within ten (10) days
there.fter. No one shall serve as an arbitrator who 15 in any way
financially interested in this Agre.sent or in the affairs of
either Party hereto.
c. Ttlls aqr....nt to arbitrate shall be specificallY
.nfol'eHble under the prevailing arbitration hlol1l. The award
rendend by the ubitrator(sl will b<II find and bindlh9. and
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judgment may be entered upon it in accordance with the applicable
law in any court that has jurisdiction over the decision.
xx. SUCCESSORS AND ASSIGNS. This License Agreement shall be
binding on the Successors, Heirs and Assigns of each Party.
XXI. HEADINGS. The headings are provided for convenience of
identification only and are not to be construed as having any legal
significance.
XXII. PENNSYLVANIA LAW TO APPLY. This Agreement shall be
construed under and in accordance with the laws of the Commonwealth
of Pennsylvania and all obligations of the Parties created
heteunder are performable in oauphin County, Pennsylvania.
XXIII. LEGAL CONSTRUCTION. In the event anyone or more of
the provisions contained in this Agreement shall for any reason be
held invalid, illegal or unenforceable in any respect, the
invalidity, illegality or unenforceability shall not affect any
other provision thereof and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been
contained herein.
lCXtV. SOLE AGREEMENT OF THE PARTIES. This Aqre...nt
constitutes the sole and only agree.ent of the Parties here~o and
supersedes any prior understanding or written or oral a9r....nt.
between the Parties respecting the within subject .atter.
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xxv. AMENDMENT. No'amendment, modification or alteration of
the terms hereof shall be binding unless the same be in writing,
dated subsequent to the date hereof and duly executed by the
Parties hereto.
XXVI. WAIVER OF DEFAULT. No waiver by the Parties hereto of
any default or breach of any term, condition or covenant of this
Agreement shall be deemed to be a waiver of any other breach of the
same or any other term, condition or covenant contained herein.
IN WITNESS WHEREOF the Parties hereto have set their hands and
seals the day and year first written above.
ATTEST:
PENN PEST, INC.
QjJY:~(SEAL)
President (Licensor)
~,~.. . ~-C,-,,~ ~ ()~
~
A'l'TEST:
PENN PEST OF CARLISLE, INC.
~L.~'~~~
"1,..J 1J;J;<u
President
(SEAL)
(Licensee)
WITNESS:
DEITCH BROTHERS PEST CONTROL
'-~~t-'".j~, ~~t ~
7 L iJ ;,J;<.v
'partner
( SEAL)
(Licens..)
WITNESS:
DEITCH BROTHERS PEST CONT1\OL
~~~(SEAL)
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