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HomeMy WebLinkAbout98-00248 ~ It CJ u1 '> , ..I A ~. " ~ ie , i] !L.i: ! \. ! \l !Q.. I ! , r i I ! .1 I I {' \.. \~ .- ... ,:i cj " 6.. "J'- rl \ Ci.. Ct- ~. ,.1 ;J, .., (; 0, '.()..;; :J" o ::" '" ,8' o 'j: ('".;;r\ ~ ...... cA '" '.J I,' d' '-' '\ " '" ,J " iJ ~- Co:) p": ~'.:i , .:.~: .. ,11 , (~,\ (,) , l l~ I C) , I , U:) (., w' \ " ~t) C_, . , I I " , , ! " ,- ,. " ", " \..',.1 (j C) 0'1 Thomng J, Wobm, Esquire Altornoy I D. No 58853 Goldborg, KutZnltHI & Shipmtlll, P.O, 320 Murkot Stroot, SttElVlborry Squme P,Q Box 1268 Horrlsbw9, PA 17108.1268 Attorneys for Dofondunt PERFECT ORDER, INC, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUN1Y, PENNA, v, NO, 98.248 JAMES A, CAPP, Defendant CIVIL ACTION. LAW ANSWER AND NEW MATTER 1, Admitted, 2. Admitted. 3, Admitted, 4, Admitted. 5, Denied as stated. It is admitted that Mr, Capp is a 20%. shareholder of Perfect Order, By way of further answer, Mr, Capp was effectively removed as director, offioer and employee ot Perfect Order by the actions of the othershareholders on or about June 7, 1996. The improper removal of Mr, Capp resulted in his initiation of litigation against Perfect Order by a Complaint filed on or about February 26, 1997 in the Cumberland County Court of Common Pleas at Docket No, 97.1014, It is admitted that in order to maintain a livelihood foliowing his improper removal from Perfect Order, Mr, Capp Founded f<eystone Programming, Inc" a Pennsylvania corporation, providing oomputer programming and consulting services and some oomputer systems sales, It is denied that Mr, Capp competes with Perfect Order and strict proof of the same is demanded at trial. 6, It is admitted that Mr. Capp was an employee, officer and directorof Perfect Order until his irnflroper removal which effectively took place on or about June 7, 1996, It is also admitted that during his tenure as employee, officer and director, Mr, Capp devoted his full efforts to the success of Periect Order on a clay to day basis. Following his removal as officer and director on or about June 7, 1996, Mr, C6pp attempted to resurrect his position in the company, Other shareholders made it clear his presence would not be tolerated and he has attempted to support himself and his family since, 7, After reasonable investigation, ansNering Defendant is without sufficient knowledge or information to form a belief as t.o the truth of the averments regarding what Plaintiff asserts is a substantial part of t.he transaction, occurrences and events and, therefore, these averments are denied, It is admitted that Perfect Order's prior place of business was 711 South York Street, Mechanicsburg, Pennsylvania 17055, 8, The averments contained in para9raph 8 of Piaintiff's Complaint refer t.o the Stock Purchase Agreement and Redemption Agreement which, as a writing, speaks for itself, 9, Denied, The Stock Purchase Agreement did not mark the start of a new business, Perfect Order' began operation in August of 1992, In January 1995, with the then addition of a third shareholder, Mr, Johnson, the company expanded its directions to 2 inolude oomputer sales, Rervioes and oonsl;ltin9, From January of 1995 through today, Perfeot Order, Ino, has operated as a oomputer' sales, servioe and oonsulting company, 10, After reasonable investigation the answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments regarding the formation of this new business venture and, therefore, these averments are denied, By way of further answer, the averments contained in paragraph 10 of Piaintiff's Complaint refer to the Stock Purchase Agreement which, <1S a writing, speaks for itself, By way of further answer it is denied that the Stock Purchase Agreement or any other documentation entered into by the corporation or it shareholders contains any dauso limiting shareholders from operating separate computer bU'linesses, 11, Admitted, 12, Denied as stated, Perfect Order was started in 1992 by Mr. Capp and Mr, Gomery, Mr, Gomery had previously benefitted individually from computer software developed by Mr. Gomery and Mr, Capp coilectively, In reoognition of Mr, Capp'r loss of such benefits, Mr, Gomery contr'ibuted sufficient capital to recognize Mr, Capp's share, With the addition of Mr', ,Johnson as a third shareholder, Mr. Capp temporariiy assigned the fictitious name Keystone Programming to Perfect Order, under the express understanding that he would resume all the rights to the name if he left Perfect Or'der, 13, Denied as stated, It is admitted that Mr, Capp was the Chief Financial Officer and Treasurerof Perfect Order, Mr, Capp did not become CFO until April 6, 1996, It is further admitted that he held this position until removed on June 7,1996, a period of 3 approximately two months. It Is specifically denied that the removal was proper or that Mr, Capp mismanaged the financial affairs of Perfect Order, 14. Admitted In part. Denied in part. It is admitted that Mr, Capp was a director of the corporation until removed on or about June 7, 1996, It is specifically denied that said remuval was proper or that Mr, Capp mismanaged the financial affairs of Perfect Order, 15. After reasonable investigation the answering Defendant iswith""t sufficient knowledge or information to form a belief as to the truth of the Plaintiff's averment regarding Mr, Capp being "charged" with managing the company's financial affairs and, therefore, they are denied, It is admitted that as CFO Mr. Capp had certain responsibilities and obligations as they pertained to the financial affairs of Perfect Order, By way of further answer, Perfect Order, as a corporation comprised of five shareholders, placed certain responsibilities and obligations on all shareholders to oversee the proper financial operation of the corporation. The responsibilities held by all shareholders included the billing of their respective o!ients, 16, Denied, It is denied that Mr, Capp allowed the company' finances to go unattended, It is further denied that there was any mismanagement of financial affairs and/or that, the different billing cycles as they pertain to the various clients were improper, 17, Denied, It is specifically denied that Mr, Capp took efforts to conceal the financial condition fl'Om the other four shareholders. To the contrary, the company held regular Board of Directors' Meetings, including one on May 3, 1996, during which Mr. 4 Capp provided full disolosure as to tne oompany's position, Additionnlly, Mr, Capp made the <Doounting system aooessible to all shareholders, By way of further answer, as evidenoed by the finanoial statements prepared by Perfect Order's aooountants, Perfect Order was a financially viable company at the time of Mr, Capp's improper removal. 18, Denied as stated, Mr, Capp, during his brief tenure as CFO, provided updates of the financial status of the company, At the May 3, 1996 Board of Directors meeting, the shareholders wer-e informed of the financial status of the oompany and the need to reconcile the previous years' books from the month of October, 1995 to the present. Considerin[J Mr, Capp had only been in the position of CFO for approximately a month at this time, his efforts in preparing this reoonciliation were reasonable, Further, Mr, Capp was inappmpriately removed from the position in little over another month and thus was prevented from oompleting the reoonciliation. 19, Denied, It IS specifically denied that Perfect Order was having financial difficulty. The contrary is established by the balance sheets prepared by the company's accountants. By way of further answer, it is acknowledged that in May of 1996 the company was encountering a cash flow (.Oncem as a result of the denial of an assignm. of proceeds provision for a million dollar oontract with the Department of Publio Welfare of the Commonwealth of Pennsylvania and shareholder Mr. Johnson's actions of purchasing a second unauthorized demonstration computer for a price of $22,000, 20. Denied, On Wednesday, June 5, 1996, Mr, Capp informed the shareholders that they may need to utilize the company's line of credit. At no time did Mr. Capp 5 suggest that this was neoessary in order to stay in business, To the contrary, the company was expeoting a signlfioant amount of reVEJnue fmm the Department of General Services and the company had recently completed a tClsk for' CI signifloant client thClt would enClble it to issue CI bill of $10,000, It is specificCllly denied tlwt Mr, Capp was asked to refmin from any action pending a detailed eXClminCltion of the oompilny's financos, nor was he informed of Clny such examination, I t was not until the regularly scheduled boar'd meeting on Friday, June 7, 1996, at 3:00 p,m, that Mr', Capp learned thClt the other shareholders desired to replace the accounting system Clnd remove him as CFO, It is believed the other four shareholders hCld met privately earlier in the morning on June 7, 1996 to discuss the Clction to be taken IClter in the bow'd meeting, 21, Denied as stated, When Mr, CClpp was improperly removed from office, it was clearly stated that he was removed for the remainder' of the term which would last just short of a yem. There was never Clny mention of resuming his position, By way of further answer, Mr, Capp was infor'med by Mr, Kelly that Mr, Kelly thought it would be best if Mr. Capp were to leave the company, Further, shClreholder Bennett took a position that either' Mr', Capp was leavin9 the company or he was leaving. As CI result, Mr, Capp was effectively forced out of the company, 22, Admittecl, By way of further answer, during the negotiations for Mr. Capp's withdrawal from Perfect Order, Mr. Johnson hCld Clgreed to Clllow Mr. CClpp to service his clients' websites lising the server at Perfect Order until such time CiS Mr, Capp was able to acquire his own Internet fClcilities, Consistent with the Clgreement, Mr, Capp 6 surrendered his access to Perfect Order's computer system immediately upon the establishment of his own facilities In early fall of 1996, 23, Denied, The computer system In question was an Internet server that did not contain any proprietary or confidential information of Perfect Order or its clients, Mr, Capp accessed it for purposes of resuscitatin9 a down server. By way of further answer, no one can destroy a computer' system intentionally or accidently through a telephone line, If any data were lost it could have been reoovered from the backup tapes made daily at Perfect Order, Furthermore, Mr, Capp reported his actions to Perfect Order immediately upon making them, By way of further answer, to gain access to the Internet server, a password was required, thus making it unaccessible to everyone who was not an employee of Perfect Order. Also, the access codes were enclypted and not directly readable and further were in a temporary system directory in the operating system layers, but completely restricted fr'om an Internet "browser", 24. Denied. Perfect Order was not damaged in any way due to Mr, Capp's maintenanGe service, No person outside of Perfect Order had the ability to look at the files in question. Even if a third party knew the password necessary to look at the file, the passwords were encrypted using the Data Encryption Standard (DES) of the National Bureau of Standards and would have to be deciphered in order to use them, Even if such deciphering occurred all that was required was a change of the password. 25, Denied, By way of further answer, following the addition of Mr. Johnson as a third shareholder to Perfect Order, Inc" Mr, Capp devoted all of his resources to 7 promoting the success of Perfect Order, Mr. Capp was devastated by his removal as an officer and director of Perfect Order and made every ,'easonable attempt to be restored to those positions, it was only after all attempts at reconciliation with the other shareholders failed that Mr, Capp abandoned his desire to remain an employee and shareholder of Perfect Order. Inc. 26. Denied as stated, For one year prior to the entry of the Stock Purchase Agreement/Redemption t,greement, Mr, Capp was an employee, director and one-third shareholder of Perfect Order, His operation of Keystone Pmgramming as a sole proprietorship ended on December 31,1994. His initial contribution to Perfect Order took the form of Mr. Gomery's recognition of Mr. Capp's involvement in developing a computer software program that resulted in direct benefit to Mr, Gomery alone, not the transferring of the business of Keystone Programming. 27, Denied as stated. On or about January 19, 1995, Mr. Capp assigned the fictitious name Keystone Programming to Perfect Order, Inc, It is denied that it was part of the formation of Perfect Order, Inc, which was formed as a Pennsylvania corporation in August of 1992. By way of further answer, it was recognized by the then,current shareholders, that if Mr, Capp ever left Perfect Order, he would retain the use of the name Keystone Programming, 28. Denied as stated, It was always the intent of Perfect Order, Inc. to operate under the name Perfect Order, Inc, The transfer of the name Keystone Programming provided a vehicle for Perfect Order, Inc, to collect revenue from consulting contracts that 8 were originated by Mr. Capp while operating as the sole proprietor through Keystone Programming, 29, Denied as stated, After his improper removal from the board of directors and as CFO of Pel'fect Order, Inc" Mr, Capp took all reasonable steps to rectify the situation inside the corporation, When it became apparent that the other shareholders were not serious about considering sLlch a proposal, Mr, Capp, oonsistent with his prior agreement with Mr. Johnson and Mr, Gomery, transferred the name Keystone Programming back to himself, At this time Perfeot Order had already ceased using the name, 30, Denied, FromJanuary 1, 1995until his improperremoval from the company Mr, Capp did not maintain Keystone Programming as a separate business and did not divert any business from Perfect Order, Ino, 31, Denied as stated, It is admitted that Mr, Capp maintained a bank account in the name of Keystone Programming, However, this was with the full knowledge of Mr. Gomery and Mr, Johnson, At no time did the other four shareholders ask Mr, Capp to close any acooLlnts nor did he at any time lead the shareholders to believe that he had closed the accounts, It is specifically denied that he diverted any funds from Perfect Order to Keystone Programming, 32, Denied, As is established by the minutes of the board meeting of Deoember 1 , 1995, the content of the advertising was brou9ht before the Board. This occurred at a time when Mr, Capp WClS not the CFO and further the funds for the advertising were 9 coming from Sun Microsystems, not Perfect Order, By way of further answer, the minlJtes of the April 9, 1996 bcard meeting reveal Mr, Bennett's request to remove the name Keystone Programming from the advertising which was done immediately and without resistance, At that time Perfect Order stopped all use of the name Keystone Programming, 33, Denied, The qualifications of Mr, Hoy were well known by both Mr, Johnson and Mr, Gomery as a result of a prior working relationship, Perfect Or'der specifically recognized Mr, Hoy's skills and indicated that he should prove to be an asset to the company. Mr, Hoy's was hired without hesitation by unanimous agmement of the Board of Directors, It is specifically denied Mr, Capp took any actions, including any involvement with Mr, Hoy, to maintain a separate business while he operated In a full.time capacity with Perfect Order from _!"muary, 1995 until his improper removal. 34, Denied. Jack Gaughn was invoiced in full and paid in full for all work performed by Mr, Hoy, Following Mr. Capp's improper removal from Perfect Or'der, Mr, Johnson agreed that Perfect Order was not in the best position to service the needs of Jack Gaughn and, therefore, following Jack Gaughn's decision as the cLlstomer, they continued to be serviced by Mr, Capp, 35, Denied as stated, Mr, Gomery was also intmduced to the personnel at the Department of Insurance and was selected by Perfect Order to be the contact person for all Commonweaith business, 10 36, Denied, In good faith furtheranoe of his position as CFO of Perfeot Order, Mr, Capp on June 5, 1996, signed SP21569, However, suoh signature did not oonstitute a valid or enforoeable oontract until fully exeouted, approved and delivered to the oontraotor, It is Mr, Capp's understanding that the proposal was never fully exe,cuted by the Commonwealth and did not beoome a valid oontraot, 37, Denied, The proposal was returned to the Department of Insuranoe as required for neoessary approval by the authorized agenoy oomptroller and the offio€' of General Counsel and the Secretary of Budget and the Office of ,f.I,ttorney General. It is understood that such approval was never forthooming, 38, Denied. Mr, Capp signed the dooument on behalf of Perfect Order and fOlWarded the dooument to the Department of Insuranoe in good faith fulfilling any and all duties to Perfeot Order, 39. Denied, The document repeatedly referred to by the Plaintiff as a contraot was not a oontract and never became a valid and enforoeable oontract, 40, Denied, The Department of Insuranoe did in faot issue the assooiated oontraot for the purchase of computer hardware and software to Perfeot Order, Ino, In addition to that contract, Per'fect Order was the reoipient of two other oontraots for oomputer hardware/software training, suppor.t, and maintenanoe for the Department of Insuranoe, In faot, it is believed that the Department of Insurance oontinues to purohase hardware, software, training, maintenance and support servioes from Perfeot Order, 11 41, Denied, It is specifically denied that Mr, Capp took any softwal'e developed at Perfect Order. It is further denied that he is derivin9 any benefit from any software produced at Perfect Order, The alle9iltions re9ardin9 software developed at Perfect Order being the property of Perfect Order constitute legal conclusions to which no response is required, To the extent these averments are deemed factual in nature it is specifioally deniEi'd that Mr, Capp has improperly converted any property, 42, Denied, It Is specifically denied that Mr, Capp intentionally diverted any clients of Perfeot Order to Keystone Programming, It is admitted that on several oooasions, Mr. Capp and Mr, Johnson met in order to ,'esolve the differences between Mr, Capp and the other shareholders. When the attempts to reconcile the differences failed, Mr, Johnson and Mr, Capp openly discussed the possibility of Mr. Capp splitting on his own, Mr, Capp and Mr, Johnson had further disoussions as to who would best be capable of serving certain olients, It was with the open discussion and agreement of Mr, Johnson that oertain clients indioated they wanted to oontinue to be serviced by Mr, Capp, 43, The allegations contained in paragraph 43 of Plaintiff's oomplaint oonstitute oonolusions of law to which no response is required, To the extent these averments are deemed factual in natul'e, it is specifically averred that tvir, Capp fully and competently oarried out any and all duties and/or obligations held by him in his capaoity as a former officer of Perfect Order, By way of further answer, it is averred that Mr, Capp was improperly removed as an officer of Pelfect Order on June 7, 1996. 12 . , 44, The averments oontalned In paragrClph 44 of Plaintiff's oomplalnt oonstltute oonoluslons of law to which no response Is required, To the extent they are deemed factual In nature, it is specifically averTed that Mr. Capp faithfully and competently carried out all duties and/or obligations held by him as a former director of Perfect Or'der, By way of further answer, Mr, Capp was Improperly removed from the position of dir-ector on June 7,1996. 45, The averments contained in paragraph 45 of Plaintiff's complaint constitute conclusions of law to which no response is required, To the extent these averments are deemed factual in nature, it is averred that Mr, Capp at all times fulfilled all ,~uties and obligations running to Perfect Order. By way of further answer. Mr, Capp was improperly removed from the position of officer and director on June 7, 1996. COUNT I 46. The answers contained in paragraphs 1 through 45 are incorporated herein as though set forth in their entirety. 47, Denied, The "Contract" referred to by Plaintiff was only a proposal that Mr, CClPP faithfully completed on behalf of Perfect Order and submitted it to the department for proper approval. It is Mr. Capp's understanding that the proposal was never approved by the Department, By way of further answer, the Department of Insurance decided to fulfill the needs of the proposed contract through a public bid. It is believed that appmximately 20 entities participated in the bidding process, None of whioh were Perfect Order, 13 48. The averments contained in paragraph 48 of the Plaintiff's complaint oonstitute oonolusions of law to whioh no response is required, To the extent they are deemed factual in natur'e, it is speoifioally denied that Mr, Capp oonverted any contraot held by Perfect Order for his own benefit. By way of further answer, the docLlment the Plaintiff oontinually refers to as a cont'aot was not a contract. Following the department's decision to submit the proposal to public bid, Mr, Capp was one of 20 bidders and sLlCcessfully obtained the contract for his own benefit following his dismissal from Perfect Order. It is believed that Perfect Order did not even submit a bid on the contl'act. 49, The averments contained in paragraph 49 of the Plaintiff's complaint constitute conclusions of law to which no response is required, To the extent they are deemed factual in nature, it is specifically denied that Mr, Capp deprived Perfect Order of the opportunity to be awarded associated contracts from the Department of Insurance. By way of further answer, Perfect Order was in fact awarded the associated contract and at least two other contracts from the department of insurance for the purchase of computer hardware and software, Additionally, Perfect Ordor continues to provide computer hardware, software, training, maintenance and support services to the State, 50, Denied, As more fully explained above, it was recognized by shareholders of pflrfect Order that folloWing Mr, Capp's removal, Perfect Order was not in a position to continue to serve Jack Gaughn and other customers who exercised their choice to go with Mr, Cappo 14 COU1YI..11 53, The answers to paragraphs 1 through 52 are incorporated herein as though set forth in their entirety. 54, The averments contained In paragraph 54 of the Plaintiff's complaint oonstitute oonolusions of law to whloh no response Is required, To the extent they are deemed factual in nature, it is averred that Mr, Capp fulfilled all duties and obligations while a director of Perfeot Order. 55, The averments oontained in paragraph 55 of the Plaintiff's oomplaint oonstitute oonolusions of law to whioh no response is required, To the extent they are deemed faotual in nature, it is speoifioally denied that Mr, Capp did not pelfonn his duties with Perfeot Order In good faith, 56, The averments contained in paragraph 56 of the Plaintiff's complaint oonstitute oonolusions of law to whioh no response is required, To the extent they are deemed faotual in nature, it is specifioally denied that Mr, Capp did not perform his duties with Perfect Order in a mannerwhioh was In the best interests of the oOI'poration. To the oontrary, Mr, Capp e1evoted his best efforts and full energy to the success of Pelfeot Order until such time as he was foroed out of the oorporation, 57, The averments oontained in pilragraph 57 of the Plaintiff's oomplaint oonstitute oonolusions of law to whioh no response is required, To the extent they are deemed factual in nature, it is speoifioally denied that Mr. Capp did not perform his duties with Perfect Order with sllch oare, as a person of ordinary prudenoe would use under 16 similar circumstances, To the contrary, Mr, Capp utilized his best efforts and full energies to promote the success of Perfect Order until SLIOh time that he was forced out of the corpol'ation, 58. The averments contained in paragraph 58 of the Plaintiff's complaint constitute conclusions of law to which no r'esponse is required, To the extent they are deemed factual in nature, it is specifically denied t.hat Mr, Capp was putting his efforts into developing and maintaining Keystone Programming while he was an officer', director, and/or employee of Perfect Oreler, By way of further' answer, in 1994, Mr, Capp assigned contracts that were in Keystone Progoamming to Perfect Order so that Perfect Or'der'oould generate immediate revenue and cash flow, Beginning in January of 1995, with the addition of Mr, Johnson as a third shareholder to Perfect OrdN, Mr, Capp devoted his full energy to Perfect Order and begsn billing all clients thi'Ough Perfect Order'. At that time, he ceElsed all efforts to develop Elnd mElintElin Keystone Programming ElS a separate business entity, 59. The averments contained in paragraph 59 of the Plaintiff's complaint constitute conclusions of IElW to which no response is required, To the extent they are deemed factual in natur'e, it is specifioally denied that Mr, Capp caused <1ny damages to Perfect Order, WHEREFORE, Defendant J"mes A, Capp respectfully requests that this court anter jud9ment in his favor' and against the Plaintiff Perfect Order, Inc" along with costs, attorneys' fees and sll other relief the coun deems just, 17 gOljNTIII 60. The answers contained in poragraphs 1 through 59 above are incorporoted herein as though set forth in their entirety, 61, The overrnents contoined in poragraph 61 of the Plaintiff's complaint constitute conclusions of law to whioh no response Is required. To the extent they are deemed factual in nature, it is specifically denied that Mr. Capp failed to perform his duties as director, officer, CEO and treasurer with the requisite level of care. 62, The allegations contained in paragraph 62 of Plaintiff's complaint constitute conclusions of law to whioh no response is required, To the extent they C1re deemed factual in nature, they are denied, By way of further answer, it is denied that Mr. Capp breached his duty of care in completion of his role os direotor and officer. By way of further answer, it is speoifically denied that Mr. Capp totally failed to maintain financial r'Bcords and further that his efforts in developing an accounting system for Perfect Order constituted a breach of any duty held by Mr, Capp, 63. The allegotions oontained in poragroph 63 of Plaintiff's complaint oonstitute oonclusions of law to which no response is required, To the extent they are deemed factual in nature, they are denied, By way of further answer, it is denied that Mr. Capp breaohed his duty of cal'e in completion of his role as director and officer. By way of further answer, It is specifically denied that Mr, Capp breached any duties with Perfeot Order, By way of further answer, It Is denied that Mr. Capp improperly failed to bill any clients for work performed by Perfect Order, 18 64, The averments contained in paragraph 64 of the Plaintiff's complaint constitute conclusions of law to which no response is required. To the ext<3ntthey are deemed factual in natul'e, it is specifically denied that Mr, Capp's actions caused any damages to Perfect Order, WHEREFORE, Defendant James A. Capp respectfully requests that this court enter jlldgment in his favor and against the Piaintiff Perfect Ordel', Inc" along with costs, attorneys' fees and all other relief the court deems just. 90UNT J~ 65, The answers contained in pal'agraphs 1 through 64 above are Incorporated herein as though set forth in their entirety, 66, The averments contained in paragraph 66 of the Plaintiff's complaint constitute conclusions of law to which no response is required, To the extent they are deemed factual in nature, it is specifically denied that Mr, Capp converted any contractual right or other pmperty of Perfect Order. 67, The averments contained in paragraph 67 of the Plaintiff's complaint constitute conclusions of law to which no response is required, To the extent they are deemed factual in nature, it is specifically denied that Mr. Capp cOO1verted any Department of Insurance contract, computer programs deveioped at Perfect Orderand/or the fictitious name Keystone Programming, 68, The averments contained in paragraph 68 of the Plaintiff's complaint constitute conclusions of law to which no response Is required. To the extent they are 19 deemed faotual in nature, It is speoifloally denied that Mr. Capp has oaused any damages to Perfect Order, WHEREFORE, the DefendantJames A. Capp respectfully requests that this court enter judgment In his favor and against the Plaintiff Perfect Order, Inc" along with costs, attomeys' fees and all other relief the court deems just. COUNT V.. NEGLlG,ENCE 69. The answers contained in paragraphs 1 through 68 above are incorporated herein as though set forth in their' entirety, 70, The averments contained in paragraph 70 of the Plaintiff's complaint constitute oonclusions of law to which no response is required, To the extent they are deemed factual in nature, it is specifically denied that Mr', Capp placed access codes to Perfect Order's computer system in a public directory which was available to anyone with access to a computer and phone line, By way of further answer', it is denied that Mr, Capp's activities as they may relate to the access codes were either' negligent and/or an intentional tort intended to harm Perfect Order, 71, The averments contained in paragraph 71 of the Plaintiff's complaint constitute conclusions of law to which no response is required, To the extent they are deemed factual in nature, It is specifically denied that Mr. Capp caused any damC1ges to Perfect Order, 20 ".\1111'..11110, I'A 17tO. -i1-:i',:,C.': -,. "".. - .. . ' ;i~1f3~i~-;'I~\~1-J~,\~.'~'- -, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL.V ANIA PERFECT ORDER, INC., Plaintiff NO, 98-248 Civil Term Civil Action, Law v, JAMES A, CAPP, Defendant S.TIPULA TION Plaintiff, Perfect Order, Inc" by its undersigned counsel, and Defendant James A, Capp, by his undersigned counsel, agree that the Answer and New Matter filed on or about May 26. 1998 in the atove action is hereby amended to remove all requests for recovery of attorney fees from each and every prayer for relief contained in said Answer and New Matter, MCNEES, WALLACE & NURICK GOLDBERG, KATZMAN & SHIPMAN . ,I' I ! By ,I/It' / '"--l.....~ '< James p, DeAngelo Attorney 1.0, 62377 Debra p, Fourlas Attorney 1.0, 62047 100 Pine Street P,O, Box 1166 Harrisburg, PA 17108,1166 (717) 232-8000 By //{'!!'!) () ( (, I /. -rtmas J, Weber Attorney 1.0, 58853 320 Market Street P,O. Box 1268 Harrisburg, PA 17108,1268 (717) 234-4161 A ttorney for Defendant A ttorneys for Plaintiff Date:_J~ Date: , /'.J /(' , '.' / '/ / ,J , , . f"