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Home My WebLink About00-05417 "., " ': '1 -[ II II Ii \11 " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Amended Complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or celiefrequested by the Plaintiff, YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE TIDS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse 4" Floor, I Courthouse Square Carlisle, PA 17013-3378 (717) 240-6200 AYlSQ USTED HA smo DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar aedan dentro de veinte (20) dias a partir de la fecha en que recibi6 la demanda y el aviso. Usted debe presentar comparecencia escrita en persona 0 por abogado y presentar en la Corte por escrito SUS defensas 0 sus objectiones alas demandas en su contra. Se Ie avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso 0 notificacian por cualquier dinero reclamado en la demanda 0 por cualquier otra queja 0 compensaci6n reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABODAGO INMEDlATAMENTE. SI USTED NO TIENE 0 NO CONOCE UN ABOGADO, VAYA 0 LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Court Administrator Cumberland County Courthouse 4" Floor, 1 Courthouse Square Carlisle, PA 17013-3378 (717) 240-6200 " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED AMENDED COMPLAINT 1. Plaintiff, Waste Management of Pennsylvania, Inc., is a corporation incorporated and existing in the Commonwealth of Pennsylvania, trading and doing business as Waste Management of Central PA, with its principal place of business at 4300 Industrial Park Road, Camp Hill, PA 17011. 2. Defendant, Hampden Center, Inc., is a corporation incorporated and existing in the Commonwealth of Pennsylvania, with its principal place of business at 4900 Carlisle Pike, Mechanicsburg, PAl 7055. 3. On April 23, 1998, Waste Management of Central PA and the Hampden Center entered into a contract, pursuant to which Waste Management provided certain containers for waste disposal and recycling of cardboard. Waste Management would periodically empty these containers. In consideration of these services, Hampden Center was to pay the reasonable charges imposed by Waste Management. A true and correct copy of the contract, called a Service Agreement for Non Hazardous Waste, is attached as "Exhibit A". 4. Pursuant to the terms of the contract, the Agreement was to have a term of three years. In the event the Defendant terminated the contract before the end of the term, Waste 1 I. "_ '"."-,' .-."" " , ~-, -. -,' Management was entitled to liquidated damages in the amount of the most recent monthly charge, multiplied by five, or the remaining months in the current term, whichever is less. 5. On or about November 15, 1999, the Hampden Center, Inc., by its counsel, Stephen C. Nudel, notified Waste Management of Central PA of its intent to prematurely terminate the contract. A true and correct copy of this notice is attached as "Exhibit B". 6. The most recent monthly charge incurred by the Hampden Center prior to the premature termination of the contract was $1,710.00. 7. Waste Management is entitled to judgment in the amount of $8,550.00, plus $7,501.68 in arrears and finance charges, plus costs of suit, including the costs incurred for filing and obtaining judgment against the Defendant before the District Justice. 8. Pursuant to the terms of the Agreement attached as "Exhibit A", Waste Management is entitled to recover its attorney's fees and other costs incurred in collecting the amounts due under the terms of the contract. WHEREFORE, Plaintiff, Waste Management of Pennsylvania, Inc., tJd/b/a Waste Management of Central P A, demands judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. Respectfully submitted, STETLER & GRIBBIN Date: 1/ />rh / ,.. / By: ~~~?? Walter A. Tilley, III Attorney for Plaintiff Attorney J.D. No. 37452 PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506; Fax: 717-845-4931 !*-- ,- ".-.<-.-.--- ,.< ~- . -, _~^. ",.m ! , ! I 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INe., d/b/a WASTE MANAGEMENT OF CENTRALPA NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED VERIFICATION I verify that the statements made in the foregoing AMENDED COMPLAINT are true and correct to the best of my knowledge, information and belief. This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authored by counsel in his capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pac C.S. S 4904, relating to unsworn falsification to authorities. Date: 1/- 7-01 By: WASTE MANAGEMENT OF PENNSYLVANIA, INC., t/d/b/a WASTE MAN~~ENTOFCENTRALPA ~~// / ~~ Don Isabella ,/ q, ,,,- , "'c?;=.,' , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certify that I served a true and correct copy of the within AMENDED COMPLAINT, by first class mail, postage prepaid, on the following: Mark W. Allshouse, Esquire Stephen C. Nudel, P.C. 219 Pine Street Harrisburg, PA 17101 STETLER & GRIBBIN Date: Ij/~""'/ By: ~~-~~~ Walter A. Tilley, III 138 East Market Street PO Box 2588 York,PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-493 I . [ ---' - ;::. " W.lU'f.LI'; 1VJANAUJ!.:!.II1ENT OF CENTRAL PA I ~\ 4300 INDUSTRIAL PARK RD \e:I. CAMP HILL . PA 170115717 . ~iJT J (717) 232-0878 . Fax: (717) 763.9153 3'i~\ '" No\ME " HAMPDEN CENTER-ABC BLDG "i) STREET NUMIlER OIA STREET ~ME ',! 4900 CARLISLE PIKE .: Cl1Y , 1 MECHANICSBURG '; ~"IQN I~TfD 00\JN'lY trr.o..TE/PROJ\NCE CUM PA I, 11lrn Pt-ONE 212 545-1910 CAEDIT "'FERENC' -;:f/. 0 cJIiy Ol/Ol/9S , ~ SERVICE AGREEMENT' NON-HAZARDOUS WAST, 1196776 CO COMMERCIAL-CPA L STA AP ACTIVE PICKUP EFFfCrJllE DATE Z1ptPOSrAL cooe 17055 01/01/93 TEMP SERJ No UNITS SEC\..IAITY REQUlR~D f::; ~~ SERVICE EFFECTIVE DATE: r-'---~""';;;"~---- 04/15/98 F PP.OALE PROALE ROUf' " SERJICE~"'S OlY CE:SCAlPTIO~NTS NUMIlER EXPIRES 10 . Q U " T W H F S 2 8 YO F{L CONTAINR-WM x 008 006 F 1 6YDF CARDBD CONT x 101 1 8 YO F{L CARDBD CONT x 101 F THIS IS A LEGALLY BINDING CONTRACT AND YOU AGREE TO ACCEPT THE SERVICES AND EQUIPMENT AT CHARGES AND FREQUENCY INDICATED ON THIS AGREEMENT SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED. CHANGES IN YOUR SERVICE LOCATION WITHIN OUR SERVICE AREA SHALL NOT AFFECT THE TERMS OF THIS AGREEMENT UNLESS WE PROVIDE 30 DAYS WRIITEN NOTICE OF TERMINATION. -. "'"" LAVIPOUR COMPANY ADCAESS ADDRESS STREET NUMBER DJA STREET NlI.ME 444 PARKAVESROOM802 CITY STATFJPfOJl~ ZIP/POSTAL COOf 100167821 NEW YORK NY MONTHLY WASTE REMOVAL - COMMERCIAL MONTHLY RECYCLE SERVICE - COMMERCIAL. L CONTAINER-EXTRA PICKUP RATE x x AOOIT INSTRtX:'fIONS/TEFlMS: SERVICE AT VARIOUS LOCATlONS WITHIN HAMPDEN CENTER. 1?ia ~ 3(f:~ pj:- INCIDENTA!, SPECIAi WASTE TYPES AlIO AMOUNTS THE TERMS AND CONDITIONS ARE PART OF THIS AGREEMENT Printed On: 04/23/98 15:35 "Exhibi t A" lm"!~'-TIf."""- 'H~""'~"""'_ ~"'"""'1= , . , PHONE 212545-1910 CONTACT DAVID LA VIPOR MA.STERACCOUNT AElATEDACCOllNT 1196776 WJORACCOUNT PURCHo\SE ORDER NUMBER x x ,H" ,R:5CE1VED J I E7LE!! &: GRlBBlN "'Ill!' f' '.' ""'....' ~~L.t J \' fU~'U !"1:~ ';.A.;:;;"{ L/i "f' i'/ ",' P..L HCX: 2)~";~"VOPl; 'i:I~ ~~4""'(~" ,L I"',.~! J'~; p~~p jJ. 1..,,1' ') '---_.~ ~((- v Service AgI"eement . . J'This Service Agreement, which includes any exhibits attached to. it, is made as of the date mown. below between HAMPDEN CENTER.ABC BLDG and WAS'1'E MANAGEMENT OF CENTRAL PA . 1. SERVICES PROVIDED We will provide you with non.haZ81'doua solid waste collection, transportation, disposal and recycling services. We will have the exclusive right to. provide 6Uoh services to, ,you, If we h~dle special waste for you, you will provide us with a Generator's Waste Profile Sheet (UProfile Sheet") describing all special walSte, and provide a representativesample of the special waste on request. You warrant that no solid waeteyou deliver to us 115 a special waste or a hazardous waste. If any of your waste contains materialswmch do not confonn to the descriptions in this Agreement or in a Profile Sheet ("non~conforming wastell), we can, at our option, return it to you or require you to remove and dispose of the non-confonning waste at your expense, and reimburse us for any expenses we have incurred. Special waste includes the following: all treated/deMcharacterized(formerly hazardous) wastes; polychlorinated biphenyl (l\pOBU) wastesj industrial process wastesj asbestos containing materialj chemical containing equipment; demolitiondebrisj incinerator ashj medical wastesj off.spec chemicalsj sludges; spillMcleanup wastes; underground storage tank ClUB'!'") soilsj and wastes from service industries, 2. INDEMNIFICATION We agree to indemnify I defend and save you harmless from and against any and allliabili1?f whichyo\l may be responeiblefor or payout as a re6Ult ofbo~injuries (including death), property damage, or any violationor alleged violationof law, to the extent caused by any negligent act, negligent omissional" willfulroiscond.uct of us or ow employeee, ,....bich. OCCUI"a (1) during the collectionol" transportationof your waste, or (2) as a result of the disposal of your waste, after the date of this Agreement, in 'a facilit' owned by a suhrsidiary of WaBtfr Management, Inc.j provided that our indemnificatianobligationswill not apply to occurrences involving non-conforming waste. You agree to indemnify, defend and save us harmless from and against any and all liability which we may be responsible for or pay out as Ii re6Ult of bodily injuries (including death), properly damage, or any violation or e.lleged violation of law to the extent caused by your breach of this Agreement or by any negligent act, negligent omission or willful misconduct of you aT Y,our employees, agents or contractore in the pe1formance of this Agreement. Neither party shall be liable to the other for con6equen~al, incidental or ptwitive damages arising out of the perIormanceofthisAgreement. S. USE OF EQUIPMENT The equipment we furnieh to you will remain our property . You will be responsible fer any 1055 or damage resulting from your handling of the equipment, except for normal wear and tear. You will not overload by weight or volume, move or alter the equipment and will take reasonable precautions to prevent others from doing the same. You will use the equipment ocly for its intended purpose. On collection day, you will provide unobstrocted access to the equipment, If the equipment i.e inaccessible or overloaded by weight or volume. your service will be subj eet to an additional charge. We will not be responsiblefor damage to your driving surfaces resulting from the weight of our vehicles or equipment. 4. FEES You agree to pay us the fees set forth herein in accordance with the payment terms of our invoice. We may increase your fees from tirneto time to reflect changes in regulations, taxes, the OPI. disposal and processing facility fees and fuel prices, plus a reasonable margin. Subject to your approval, the fees may be a.djusted fOor other reasons, Fee adjustments requiring your appToval may be agree.d to verbally, in writing, or by our actions, B\.l.Ch a6 your payment of our invoice6. W e will give you written notice of fee aqjustmem.ts. W e reeer\1'e the right to charge a late fee no greater than that allowed by law. If II disposal" is listed as a separate component of the fees, an appropriate handling charge may be added to the disposal facility'spo5ted gate rate. 5. TERM The term of this Agreement will be three years from the SEll"l/ice effective date, and will be automatically renewed for successive threeMyear terms, Either of us ma.y terminate the Agreement by giving the other written notice of tenninationby certified or oV'ernight mail not less than sixty daya before the ex:pirationof an initial or renewal term. If you terminatethieAgreementduring the initial term, or we terminate due to non-payment,you win pay us asliquidateddamage5, aud not as a penalty, the amount of your most recent monthly charge multipliedby five. or the remaining'nmnber of months.in the current term, whicheveriale,s8. If you. t.6mUnatethisAgree:::mentduring a renow&! term.you will pay us as liquidated,damages, and not as a penalty, the amount of your most recent monthly charge multiplied by three. 01" the remaining number of months in such renewal term, whichever 15 less. 5. MISCELLANEOUS Thi6 Agreement will be governed by the laws of the state in which services are performe~ and is binding on the fiUcce660rs and al5fiigne of both of us. The indemnificationmade by each of us will6l.lrVive terminationof this Agreement. We will be entitled to recover our attorneys' fees and oourt costs in emorcing this Agreement. This Agreement supersedes any prior Service Agreements between us for locations and setvices covered by this Agreement.A fax signature of allY party 6hall be considered to have the same binding legal effect as an origiualeignature. IN WITNESS WHEREOF. this Agreement has been signed by the authorized representatives of the parties on * i- HAMPDENCENTER~BCBLDG (Customer Name) BY~ Neme, Ml A- gUl ~NI Title PW~W\ MIv( ENTRAL PA 04/28/98 Account Number: 1196776 servcon3.090297 - - .. " "" - / LAW OFFICES STEPHEN C. NUDEL, PC 219 Pine Street aani~bbrg. Pennsylvania 171M STEPHEN C. NUDEL TRACY L. McNAMARA (717) '236.5000 FAX {1 \1i H6.S0ao November 15, 1999 Mr. Chris Blasko Waste Mana.gement of Central PA 4300 Industrial Park Road Camp Hill, PA 17011 Re: Hampden Centre Shopping Center Dear Mr. Blasko: This firm represents Hampden Center, Inc. and Lavipour & Company, LLC with respect to the Service Agreement entered into with your company for its disposal services at Hampden Centre Shopping Center. This letter serves as formal notice that, effective November 30, 1999, the Service Agreement will be deemed terminated. My client has provided you with numerous notices of deficiencies of your service. In addition, Waste Management has unilaterally increased the fees despite the provision for a 3 year price guaranty. On November 30, 1999, you are directed to cease operations and remove your dumpsters from the premises. Note that nothing in this letter shall constitute a waiver of any right or remedy of my client against you. SCN/kb cc: Mr. David F. Lavipour ve. rYe t;:)i.~lt~/.~'lel rs -.... ,~ .~;" /~ -'~~t::-;..t -f;'/ ' ,/ ;y.r;.../C/.... ! g~ './ en-;l/NUdel . , "Exhibit B" . , , !"_',~~,," _, _~_~__f_' ^?'" '.--' ~--' ,~ .-, . _~_ ~__ _ -c" " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED ORDER OF COURT Upon notice of the unavailability of Roger M. Morgenthal to serve on the above captioned arbitration panel, Steven J. Fishman is hereby appointed as substitute Arbitrator therein. BY THE COURT: Is! ~L [! /~ de6rge E. H ffer, P. J. ~RlIE COpy FROM Fr::cOof'to In IIl!lUmoo'l II' I &: nu W 6fOO.o I here lIlltO ~ m~' hand al'~ tila ~j of said Caw1 at Ca'li~b "" TillS ~z::c d ~ ""',rea. . ( )<J/~,a'l /5~ "]"1. ~c;..:L Prothonotari '>"To- ~ _ ~ .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, : " INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED ORDER AND NOW, this 11!~ay of t) d."b.J' 2001, after consideration of Plaintiffs Motion to Amend Complaint, and any answer thereto, Plaintiffs Motion is granted. Plaintiff is permitted to file an Amended Complaint, averring a monthly charge of$1,710.00 in paragraph 6. Plaintiff is further permitted to amend paragraph 7 to aver damages in the amount of $8,550.00, plus aclaim for $7,501.68 for arrears and finance charges. Plaintiff shall file the Amended Complaint within twenty (20) days of the date ofthis Order. BY THE COURT: pej!:"'oY\G\l~ ja.J( \0 r\e~Qf\ c. ~4~ f%~ (;!l. PL~F 0\ ~\ \ vl to \JJt (O<+~~O ( ~) \ J. f2~~ /O-C) I{ '0 r /'\~ " '> -,-,' ,<<,-"., 7<' > "--' -, --,-.,,-, - "- "-'-':,-- ~~~j''''''''.'~..,.'_~l':':- - ' ,', ~' .:iil''''\''i!; 'l~)l'-ji- I I , i I I g.,. !i .i...'i i1 ;! :,,~j :.'i~l... c" , ........::!. 'f :'1' ':~:;, 11; c~.ii .::, ..~ '.:c ~.~, "" t' ._'--:ty~':':,:-" "~'::-y'fn:"';/{":L"iirt - -, - ,.=- 1'- '~-' - -." '" ,-~ C ,? """",' .y .,'~,. . (") ~ ~.s. MQ;! :Z:[, , 2'~ "9 5;. ?>~' 55~' :z:O :sO c- .:;;;>; -:J ~- , .",:::_;<"O"':"",,~ Jill ",,-i(~/',,:':-"'l:~?/':.n'!;'!I-' iC:,'_'-,_ r:- 'D ilJ o f:) i.: o ~ -i N .;:- :....-:! ,~'::; --..... '!ii~ -:~1Pq ~;J ~5 ~~~~ C)I~'l j;' :0 .-< ~I. -," ..... - ~.~--"--- . , L , IN THE COURT OF COMMON PLEAS OF CUM ERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRALPA Plaintiff v. HAMPDEN CENTER, INC. Defendant NO. 2000-5417 CIVIL , . CIVIL ACTION - LAW JURY TRIAL DEMANDED AFFIDAVIT OF ERVICE I, Megan C. Huff, Esquire, being duly sworn according to law, depose and say that I have served a true and correct copy of the Order of the Honorable J. Wesley Oler, Jr., dated October 24, 2001 to amend the Complaint in the bove captioned action, by first class mail, postage prepaid, on: Mark W. Allshouse, Esquire, Stephen C. Nudel, P.C. 219 Pine Street Harrisburg, P A 1710 1 Sworn and subscribed to before me this .2 ~<<. day of ~~ ,2001. My commission expires: Notarial Seal Donna D. Koontz, Notary Public York, York County My Commission Expires July 21, 2003 -~-_.~,.~- !;\ q";.,,, , ,- . ,-~, '-,,' . I!'II! ! ~"-~ ~ --~ ^-, ",,'- ",.., -~-,,-. '0 " ,,"''''''"~'" - '" -~""-~, '-< "o;'J_, (_'j '),"~_~..'_':- .............~...inll"'... '.' ". o ~ Lla:, lTlfP 2::r_~, ~~.. 55(..... -~, ~f--, PC: :;'1 ..< iJB~~~ ~WJ!!fl -",:".'~~k:14 C:;l ~. t_j -" :::::> n -I i'.;J CD :;:::-l<> :1;: -ri C) -nl ~j' ..-< '~ '-::i) =< L0 ~ ,.. (" " M1.lm~~I . ." ~- ",-',.. -~, ,. - 1I. ~'~f " ~ WASTE MANAGEMENT OF PENNSYLVANIA, INC., d/b/a WASTE MANAGEMENT OF CENTRAL PA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA plaintiff v. NO. 2000-5417 HAMPDEN CENTER, INC., CIVIL ACTION - LAW Defendant NOTICE TO PLEAD TO: Walter A. Tilley, III, Esquire, counsel for Waste Management of Pennsylvania, Inc., d/b/a Waste Management of Central Pa You are hereby notified to file a written response to the enclosed ANSWER WITH NEW MATTER AND COUNTERCLAIM within twenty (20) days from service hereof or a judgment may be entered against you. LAW OFFICES STEPHEN C. NUDEL, PC Date:Sf*~I/ Zex:o St phen C. Nudel, Esquire At orney ID #417 3 Ma k W. Allshouse, Esquire Attorney ID #78014 219 pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendant ~~ '"~,-, = = ~ '0 WASTE MANAGEMENT OF PENNSYLVANIA, INC., d/b/a WASTE MANAGEMENT OF CENTRAL PA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff v. NO. 2000-5417 HAMPDEN CENTER, INC., CIVIL ACTION - LAW Defendant ANSWER WITH NEW MATTER AND COUNTERCLAIM AND NOW, comes Defendant, Hampden Center, Inc., by and through its attorneys, Law Offices Stephen C. Nudel, PC, who respectfully files this Answer with New Matter avers as follows: 1. Admitted. 2. Denied. To the contrary, Defendant only maintains a business at the address. 3. Denied. It is denied that Defendant was required to pay reasonable charges imposed by Plaintiff. By way of further answer, paragraphs 10 and 11 of Defendant's New Matter are incorporated herein as if set forth at length. By way of further response, the Contract speaks for itself. 4. Denied. The Contract speaks for itself. 5. Denied. The letter speaks for itself. 6. Denied. After reasonable investigation, Defendant is without information or belief as to the truth or falsity of the averments contained in paragraph 6. To the extent relevant, proof thereof is demanded at trial. -j,",,,,,,,,,,,",-~~-~^ ~~~ " --,<~= -- ,," 7. Denied. The averment contained in paragraph 7 is a conclusion of law to which no response is required. By way of further response, the averments set forth in paragraph l4 of Defendant's New Matter are incorporated herein as if set forth at length. 8. Denied. The averment contained in paragraph 8 is a conclusion of law to which no response is required. By way of further response, the Contract speaks for itself. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiff's Complaint. NEW MATTER 9. Paragraphs l through 8 of Defendant's Answer are hereby incorporated by reference as if set forth at length. lO. Under the terms of the Contract, Defendant was guaranteed a fixed price for services rendered by Plaintiff for three years beginning on April 23, 1998, and ending on April 23, 200l. ll. Plaintiff unilaterally increased its fees despite the provisions for a three-year price guaranty. l2. Plaintiff failed to provide the services required pursuant to the terms of the Contract and the services rendered were provided in a deficient manner. l3. Defendant provided Plaintiff with several notices 'E?~.__,_"""" ~ ~,-, ~ "'= ,,,,. - ~- .. regarding the deficiency in the quality of its services. 14. Plaintiff breached the terms of the Contract by failing to provide quality service and by unilaterally increasing the price despite a fixed price guaranty under the terms of the Contract. 15. Defendant did not terminate the services until after Plaintiff had breached the Contract. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiff's Complaint and award Defendant attorney's fees and costs. COUNTERCLAIM 16. Paragraphs 1 through 15 are hereby incorporated by reference as if set forth at length. 17. Under the terms of the Contract, Defendant is entitled to recover attorney's fees and Court costs for enforcing the Contract. 18. Defendant has incurred attorney's fees and will continue to incur attorney's fees and costs in defending this action. ".,.~"",,- ~_~J7!'l_ " ~... . " ":,,, . WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiff's Complaint and enter Judgment on behalf of Defendant for attorney's fees and costs in defending this matter. Respectfully submitted, LAW OFFICES STEPHEN C. NUDEL, PC Date:~t 2f,QcoO ude , Esquire torney ID #41 03 ark W. Allshouse, Esquire Attorney ID #78014 219 pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendant .,;.,=~,._-'". . .-~"--"""'- ". ~r"" . >~~~ -. -~~ -"'''~-,""~",,,"- VERIFICATION I, David F. Lavipour, Vice President for Hampden Center, Inc., being authorized to do so, verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: q\'Z..l \O~ By: Vice presid nt "'''''~..." ':""1''''''''~ ~ ,."?p.".......,= ~ .~~~~_. '" , ~ ~-",""". ," =~.. __.~_~~_~ft~"''''. , . WASTE MANAGEMENT OF PENNSYLVANIA, INC., d/b/a WASTE MANAGEMENT OF CENTRAL PA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff v. NO. 2000-5417 HAMPDEN CENTER, INC., CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Walter A. Tilley, III, Esquire Stetler & Gribbin 138 East Market Street P.O. Box 2588 York, PA 17405 LAW OFFICES STEPHEN C. NUDEL, PC Date: ~f- ~~ 2(Xy;J faJJ.~~ k W. Allsho se, Esquire A torney ID #7 014 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorney for Defendant ']"'-- ~ . "~,' ~-- -. ... ~^ ;~~. "lot :,'. ii IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED ORDER AND NOW, this _ day of 2001, after consideration of Plaintiffs Motion to Amend Complaint, and any answer thereto, Plaintiff's Motion is granted. Plaintiff is permitted to file an Amended Complaint, averring a monthly charge of$1,71O.00 in paragraph 6. Plaintiff is further permitted to amend paragraph 7 to aver damages in the amount of $8,550.00, plus a claim for $7,501.68 for arrears and finance charges. Plaintiff shall file the Amended Complaint within twenty (20) days of the date ofthis Order. BY THE COURT: J. :v ,'~. \. .': C". ~c<:__~_.,~,.-",--.,--,,,- "", ,,'.-., - .~ .," " .~.,. - ~,~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED MOTION TO AMEND COMPLAINT AND NOW, comes the Plaintiff, Waste Management of Pennsylvania, Inc., d/b/a Waste Management of Central PA, by and through its attorney, Walter A. Tilley, III, Esquire, and moves to amend its Complaint and avers as follows: 1. The moving party is Plaintiff, Waste Management of Pennsylvania, Inc., d/b/a Waste Management of Central PAc 2. The Respondent is Hampden Center, Inc. 3. Plaintiff filed its Complaint on September 7, 2000, averring, in paragraph 6, that the most recent monthly charge incurred by the Hampden Center prior to the premature termination of the contract was $1,100.00. 4. In paragraph 7, Plaintiff sought judgment in the amount of $5,500.00, plus costs of suit. 5. Plaintiff has learned that the most recently monthly charge incurred by the Hampden Center prior to the premature termination ofthe contract was in fact $1,710.00. 6. Therefore, Waste Management is entitled to judgment in the amount of $8,550.00. I ~ ~-'-'""" -' "'-~ _,"_,_~ ."so''__,':__-,,-_,_..,"_,_', -~~"-'~<< ,-,<. - -,," --0<' - " d 00, -'-"-~-" ^ , "-"'. ", ~,-,".-, --",__ ~___~_'-'~_'_-,~_",<r'."'__"'"_"'_'"'l1C.'q,<~,0'-"-';-'~'-"-' ~!1l)~~'F ,~ " - ,- - ~r!T1r"~ ~- -'~ -~-,--",," ! ~""'{i-1~-_":- ,;-; ,~,~ 7. The Hampden Center has incurred $7,501.68 in arrears and finance charges to which Waste Management is entitled. 8. Pursuant to Pac R.C.P. 1033, a party may amend its pleadings at any time with the consent of the adverse party or by leave of Court. A copy of the proposed Amended Complaint is attached as "Exhibit A" and incorporated by reference 9. Defendant will not be prejudiced by Waste Management amending its defective averment of damages. 10. Plaintiffs letter and telephone calls to Defendant's counsel seeking concurrence for its Motion to Amend Complaint have gone unanswered. WHEREFORE, Plaintiff, Waste Management of Pennsylvania, Inc., d/b/a Waste Management of Central P A, respectfully requests that your Honorable Court permit it to amend its Complaint to include a monthly charge in the amount of $1,710.00 in paragraph 6 and liquidated damages in the amount of $8,550.00, plus adding a claim for $7,501.68 for arrears and finance charges, plus costs of suit in paragraph 7. Respectfully submitted, STETLER & GRIBBIN Date: V2~n) By;~~ Walter A. Tilley, III Attorney for Plaintiff Attorney I.D. No. 37452 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax; 717-845-4931 2 ,";;; ,.,,- ~ - ,~ ;"'~11i'~ _ ~~';j <: ,.w . . ,- c.,'. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INe., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CML Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED VERIFICATION I verify that the statements made in the foregoing MOTION TO AMEND COMPLAINT are true and correct to the best of my knowledge, information and belief. This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authored by counsel in his capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pac C.S. S 4904, relating to unsworn falsification to authorities. Date: 1/4; WASTE MANAGEMENT OF PENNSYL VANIA, INC., t/dIb/a WASTE MANAGEMENT OF CENTRAL PA ~ Thomas Stang Municipal Marketi g Director ,1...__< ;~-l'<<""""b" ""' '~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INe., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certify that I served a true and correct copy of the within MOTION TO AMEND COMPLAINT, by first class mail, postage prepaid, on the following: Mark W. Allshouse, Esquire Stephen C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 STETLER & GRIBBIN Date: 9'/Z<8'/Z>/ . By: ~~~ Walter A. Tilley, III 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-493 I -">1'_.<_ 'C,';';"._.' .~_ ".'C' - '.',. ~- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-54 I 7 CIVIL Plaintiff v. CNIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HA VB BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Amended Complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be enlered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse 4th Floor, I Courthouse Square Carlisle, PA 17013-3378 (717) 240-6200 AVISO USTED HA smo DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar acci6n dentro de veinte (20) dias a partir de la fecha en que recibi6 la demanda y el aviso. Usted debe presentar comparecencia escrita en persona 0 por abogado y presentar en la Corte por escrito sus defensas 0 sus objectiones alas demandas en su contra. Se Ie avisa que si no se defiende, el caso puede preceder sin listed y la Corte puede decidir en su contra sin mas aviso 0 notificacion por cualquier dinero reclamado en Ia demanda 0 par cualquier otra queja 0 compensacion reclamados por el Demandante, USTED PUEDE PERDER DINERO, 0 PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED, LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI USTED NO TIENE 0 NO CONOCE UN ABOGADO, VAYA 0 LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Court Administrator Cumberland County Courthouse 4'" Floor, 1 Courthouse Square Carlisle, PA 17013-3378 (717) 240-6200 "Exhibit A" '''''M ,,..~ ", ~- '<C'" -<.- ~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED AMENDED COMPLAINT 1. Plaintiff, Waste Management of Pennsylvania, Inc., is a corporation incorporated and existing in the Commonwealth of Pennsylvania, trading and doing business as Waste Management of Central P A, with its principal place of business at 4300 Industrial Park Road, Camp Hill, PA 1701 I. 2. Defendant, Hampden Center, Inc., is a corporation incorporated and existing in the Commonwealth of Pennsylvania, with its principal place of business at 4900 Carlisle Pike, Mechanicsburg, PA 17055. 3. On April 23, 1998, Waste Management of Central PA and the Hampden Center entered into a contract, pursuant to which Waste Management provided certain containers for waste disposal and recycling of cardboard. Waste Management would periodically empty these containers. In consideration of these services, Hampden Center was to pay the reasonable charges imposed by Waste Management. A true and correct copy of the contract, called a Service Agreement for Non Hazardous Waste, is attached as "Exhibit A". 4. Pursuant to the terms of the contract, the Agreement was to have a term of three years. In the event the Defendant terminated the contract before the end of the term, Waste 1 "''ilm '. , ."~ -, -" - , " ,-~ ,- ~ ~<. Management was entitled to liquidated damages in the amount of the most recent monthly charge, multiplied by five, or the remaining months in the current term, whichever is less. 5. On or about November 15, 1999, the Hampden Center, Inc., by its counsel, Stephen C. Nudel, notified Waste Management of Central PA of its intent to prematurely terminate the contract. A true and correct copy of this notice is attached as "Exhibit B". 6. The most recent monthly charge incurred by the Hampden Center prior to the premature termination of the contract was $1,710.00. 7. Waste Management is entitled to judgment in the amount of $8,550.00, plus $7,501.68 in arrears and finance charges, plus costs of suit, including the costs incurred for filing and obtaining judgment against the Defendant before the District Justice. 8. Pursuant to the terms of the Agreement attached as "Exhibit A", Waste Management is entitled to recover its attorney's fees and other costs incurred in collecting the amounts due under the terms of the contract. WHEREFORE, Plaintiff, Waste Management of Pennsylvania, Inc., t/d!b/a Waste Management of Central P A, demands judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. Respectfully submitted, STETLER & GRIBBIN Date: By: Walter A. Tilley, III Attorney for Plaintiff Attorney LD. No. 37452 PO Box 2588 York,PA 17405-2588 Tele: 717-854-9506; Fax: 717-845-4931 2 ~c<,-< ~ ~ -,"'--;) ~, , " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED VERIFICATION I verify that the statements made in the foregoing AMENDED COMPLAINT are true and correct to the best of my knowledge, information and belief. This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authored by counsel in his capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pac C.S. S 4904, relating to unsworn falsification to authorities. WASTE MANAGEMENT OF PENNSYLVANIA, INC., t/d/bla WASTE MANAGEMENTOFCENTRALPA Date: By: Thomas Stang Municipal Marketing Director .~"'~ ~~ ~~""'", ''''~~. - r~ IN THE COURT OF COMMON PLE S OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNS INC., d/b/a WASTE MANAGEMENT CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INe. Defendant JURY TRIAL DEMANDED CERT ICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certify that I served a true and correct copy of the within AMEND D COMPLAINT, by first class mail, postage prepaid, on the following: Mark W. Allshouse, Esquire Stephen C. Nudel, P.C. 219 Pine Street Harrisburg, PAl 71 0 1 STETLER & GRIBBIN Date: By: Walter A. Tilley, III 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 ;,-;,"",,,,,,, ~ .'_ T,Il! . " ,-, I I I I I ' ___ c ~~~ ~ ~ ~-~,-t='_ JC ~ W1'o.'" iJ;; lVlANAtXJi:IVlJ<~NT OF CENTRAL PA I ~\ 4300 INDUSTRIAL PARK RD \!!!!I CAMP HILL PA 170115717 ~I. (717) 232-0878 F= (717) 763-9153 3'1~ \ ""lIE HAMPDEN CENTER-ABC BLDC stREET NUMBER CIR STREET NIl,ME 4900 CARLISLE PIKE lNCOFlFOF\Il.TED coumv STAif/PRlNlNCE CUM PA 212 545-1910 01/01/93 SERVICE AGREEMENT' NON-HAZARDOUS WAS, 1196776 CO COMMERCIAL-CPA LUNG STATUS AI' ACTIVE PICKUP EFFECTlVEMTE 01101/93 2If>ti>O$TAl..coPE 17055 TEMP""" No UNITS SECURITY REQUIRED b ~~ SERVICE EFfECTI~E DATE: ~r'~""'"~'--=- 04115198 F PPDFlLE Pl'IOFlLE ROur. n SER....1CE DAYS OlY D6CRlPTICH'~WTS NUMElER EXPIRES ID . 0 U M T W H F' 2 8YD F/L CONTAINR-WM x 008 006 F 1 6YDF CARDBD CONT x 101 F 1 8YDF CARDBD com x 101 F THIS is A LEGALLY BINDING CONTRACT AND YOU AGREE TO ACCEPT THE SERViCES AND EQUIPMENT AT CHARGES ANO FREQUENCY iNDICATED ON THIS AGREEMENT SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED, CHANGES IN YOUR SERVICE LOCATION WITHIN OUR SERVICE AREA SHALL NDT AFFECT THE TERMS OF THiS AGREEMENT UNLESS WE PROVIDE 30 DAYS WAITrEN NOTICE OF TERMINATION. "'lIE LAVIPOURCOMPANY " . i ADDRESS ADDRESS STREET NUMBER OIR STREEt" NAME 444 PARK AVE S ROOM 302 CITY STA~Pf\Ol.lINOE ZIP/POSTAL CODE 100167321 NEW YORK NY MONTHLY WASTE REMOVAL - COMMERCIAL MONTHLY RECYCLE SERVICE. COMMERCIAL. L CONTAINER.EXTRA PICKUP RATE CONTAINER.EXTRA PICKUP RATE x " ADDll! lNSTRt)CTIONS{l'ERMS: SERVICE AT VARIOUS LOCATIONS WITHIN HAMPDEN CEmER. f?;tt~ 3(t:* p~ , INCIDE'lTA~ SPECIAL WASTE TYPES AND AMDUNTS I THE TERMS AIIlP CONDITIONS ARE PART OF THIS AGREEMENT Printed 0", 04/2319815,35 "Exhibit A" - - .~l~ ^~,".~" ~ ," ~i,,",""~H_'" - PHONE 212 545.1910 CONTACT DAVID LA VIPOR IN>.STERAc:COUNT RELATEJlACCOUNT 1196776 IM.lO\1.ACCO\.lNf PLJRCH/lSE ORDeR NUMBER x x C.q~'-l.' ."," "', \:'-.~~~,D VEt. ~ t Co 7. t'" &, r'l'll"'I'" -., _H. '. ~''\. .,',10 1~/, I"; ^,V f' \,' ,"~P\I: U:i ~~unu ux hA .~".-{' r.A " ,:.-"., f!', ,_L lHjX '-}')~'I-~' \,r"(,>/;' .~-:i. '\0.....".,; ., - "', ." ) '._'i. [.Ir. !740'; o^ _~ ~.... ~ " ~ '3((_ v Service Agreement J! TmlS Service Agreemen.t, which includes an.y exhibits attached to it, is J[l.a.de as of the date shown below between HAMPDEN CENTER-ABO BLDG and WASTE MANAGEMENT OF CENTRAL PA . 1. SERVICES PROVIDED We will provide you with non-hazardou::; solid waste collection, transportation, disposal and recycling services. We will have the exclusive right to provide such services to you, If we handle special waste for you, you will provide us with a Generator's Waste Profile Sheet C'ProfUe Sheet") describing all special waste, and provide a representativesample of the special waste OD request. Y ou warrant that no solid waste you deliver to u::; is a 5pecial waste or a haz.al'dous waste. If a.ny of your waste contains materials which de not conform to the descriptions ill this Agreement or in. a Profile Sheet ('lnon.~conforming waste"), we can, at our option, return it to you or require you to remove and dispose of the non~conforming waste at your expense, and reimburse Us for any expenses we have incurred. Special waste includes the following: all treated/de-characterized(formerly hazardous) wastes; polychlorinated biphenyl' ("PCB") wastes; industrial process wastes; asbestos containing material; chemical containing equipment; demolitiondebris; incinerator ash; medical wastes; off-spec chemicals; sludgesj 5pill~cleanup wastesj underground storage tank: ("UST') soile; an.d wasl:.esITom !Service industries. 2. INDEMNIFICATION We agree to indemnify, defend and save you harmless from and against any and all liability which you may be responsible for or payout as a result of bodily injuries (including death), property damage. or any violationor alleged violationof law, to the extent caused by any negligent act, negligent omissional' willfulrnisconduct of us or oU!' employees, which OCv^Ul"fi (1) during the collectionor tra:osportationof your waste. or (2) as a result of the disposal of your waste, after the ,elate of this Agreement. in -8. facility owned by a Bl,lbsidiary of Waste Management, Inc.; provided that our indemnificationobligationswill not apply to occu.rrences involvingnon-conformingwaste. You agree to indemnify, defend and save us harmless from and against any and all liability which we may be reeponsiblefor or payout as a result ofhodily injuries (including death), property damage. or any violation or alleged violation of law to the extent caused by your breach of this Agreement or by any negligent act. negligent omission or willful misconduct of you or y,our employees, agents or contractors in the performance of this Agreement. Neither party shaH be liable to the other for consequen~ial.incidelltal or pu:oitivede.mages arising out of the performB.llceofthisAgreemellt, a. USE OF EQUIPMENT The equipment we furnish to you will remain our property . You will be responsible for any 10;5s or damage resulting from your handling of the equipment. except for normal wear and tear. You will not overload by weight or volume. move or alter the equipment and will take reasonable precautions to prevent others from doing the same. You will use the equipment only for its intended pUlpose. On collection day. you will provide unobstructed access to the equipment. If the equipment is inaccessible or overloaded by weight or volume. your service will be subject to au additional charge. We will not be respoIlsiblefor damage to your driving surfaces resulting from the weight of our vehicles or equipment. 4. FEES You agree to pay us the fees set forth herein in accordance with the payment terms of our invoice. We may increase your fees from timeta time to reflect changes in regulations, taxes, the CPI, disposal and processing facility fees and fuel prices. plus .a. reasonable margin. Subject to your approval. the fees may be adjusted far other reasons. Fee adjustments requiring your .approval may he agreed to verbally. in writing, or by our actions, such as your payment of our invoices. W e will give you written notice of fee adjustments.-We reserve the right to charge a late fee no greater than that allowedby law. If "disposal" is listed as a separate component of the fees, an appropriate handling charge may be added to the disposal facility'sposted gate rate. 5. TERM The term of this Agreement will be three years from the service effective date. and will be automatically renewed for successive three-year terms. Either of us may tennmate the Agreement by giving the other written notice of tenninationby certified or overnight mail not less than sixty days before the expiration of an initial or renewal term. If you terminatethisAgreementduring the initial term, or we terminate due to non-payment.you will pay us as liquidated damages, and. not as a. penalty, the amount of yoU!' most recent monthly charge multiplied-by five, or the remainin.gnumber of months in the current term, whichever is lesE. IfY'.m tenni:c.atethisAgi'eemeutduring a reIl~wal term, y ou. 'Will pay us as liquidatedclamages, and not as a penalty, the amount of your most recent monthly charge multiplied by three, or the remaining number of months in 6Uch renewal term, whichever is less. 6. MISOELLANEOUS This Agreement win be governed by the laws of the state in which services are performed, and is binding on the successors and assigns of both of us. The indemnificationmade by each of us will survive terminlitionof this Agreement. W e will be entitledto recover om attorn.eYB' fees and court casts in amorcing this Agreement. This Agreement supersedes a.ny prior Service Agreements between us for locations and services covered by this Agreement.A fax signature of any party shall be considered to have the same binding legal effect as an original signature. IN WITNESS WHEREOF, this Agreement has been signed by the authorized represe,-?-tatives of the parties on ',I II 1 I " HAMPDEN CENTER-ABO BLDG (Customer Name) BY~ .J- Name: MIl\- BUl ~N1 'f 'Iltle J> W<Ml.1V\ IJI &{ 04/23/9B Account Nwnber: 1196776 selVcon3,090297 .. - " -- I I I i I \ i i / LAW OFFICES STEPHEN C. NUDEL, PC 219 Pine 'streer Harrisburg, Pennsylvania 17101 STEPHEN C, NUDEL TRACY L. McNAMARA (717) 236.5000 FAX {717J 236.50BO November 15, 1999 Mr. Chris Blasko Waste Management of Central PA 4300 Industrial Park Road Camp Hill, PA 17011 Re: Hampden Centre Shopping Center Dear Mr. Blasko: This firm represents Hampden Center, Inc. and Lavipour & Company, LLC with respect to the Service Agreement entered into with your company for its disposal services at Hampden Centre Shopping Center. This letter serves as formal notice that, effective November 30, 1999, the Service Agreement will be deemed terminated. My client has provided you with numerous notices of deficiencies of your service. In addition, Waste Management has unilaterally increased the fees despite the provision for a 3 year price guaranty. On November 30, 1999, you are directed to cease operations and remove your dumpsters from the premises. Note that nothing in this letter shall constitute a waiver of any right Or remedy of my client against you, , ver.y t;,y.,-;Y~;~9&' rs -", d "-.'"" .2fL7 . /f-:--;~<r jE.."/., / ~./// / ..,.... .C.". . gf /./~~tfNudel . SCN/kb cc: Mr. David F. Lavipour , "Exhibit B" ~ "=- ~'-~"'~.-- ~~- >> _. lJl! ~ 0 ~- '--' <..-"-,", -~ -- -",-,.,-,"'.- c- ~" V-'<"""",",_"" .,~;.;""'~ ",0, " ~'. () 't C~: '"':J ~--, "--I " ,. '~'-") (:J ~~) -'=-i . :...? C)I " S~ -< (..) \D ". _. ..,"7- . __._=,.~'"fl!Wmilil'l>1n":W"~lf"'if'~~~~~iil1!mlil_~!!I.._,~~,":<T'''~!_ " - 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT 9. Paragraphs I through 8 of the Complaint are incorporated by reference. 10. Denied. To the contrary, the price was fixed only for the services listed in the contract. If those services changed, the Plaintiff had the right to change the price to reflect the change in the work. 11. Denied. To the contrary, the Defendant substantially increased the amount of services it received from Waste Management. Waste Management adjusted its prices accordingly but at all times adhered to the unit prices set forth in the contract. 12. Denied. Waste Management provided the services required. In fact, the Defendant was sufficiently satisfied that it increased the amount of services under the contract with Waste Management. 13. Denied. To the contrary, the Defendant increased the amount of services it received from Waste Management. Notices received by Waste Management from the Defendant 1 ~- , '---", ^ '- ',,~, '..~- - ~- " " - ,---,,~,- - - " '. ""~'-"~>___""'''_~'1'_ - i'!III\II . did not indicate a deficiency in the quality of the services rendered by Waste Management but indicated the need for additional containers. 14. Denied. Paragraphs 10 through 13 of this Reply to New Matter are incorporated by reference. 15. Denied. Paragraphs 10 through 13 of this Reply to New Matter are incorporated by reference. The allegations are further denied as conclusions of law that require no further answer. WHEREFORE, Plaintiff, Waste Manage of Pennsylvania, Inc., d/b/a as Waste Management of Central P A, respectfully requests your Honorable Court to enter judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. Reply to Counterclaim 16. Paragraphs 1 through 8 of the Complaint and paragraphs 9 through 15 of this Reply to New Matter are incorporated by reference. 17. Denied. The contract does not provide the Defendant with any right to recover attorney's fees or court costs for enforcing the contract terms. 18. Denied. After reasonable investigation, Waste Management does not have sufficient information to form a belief as to the truth of these allegations. WHEREFORE, Plaintiff, Waste Manage of Pennsylvania, Inc., d/b/a as Waste Management of Central P A, respectfully requests your Honorable Court to dismiss the 2 j:,.-_- I,~ ,. 'C"",O" -C_" " . Counterclaim and enter judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. Respectfully submitted, STETLER & GRIBBIN Date: IO):;J-"i>~ , /' By: ~~4tr. Walter A. Tilley, III Attorney for Plaintiff Attorney LD. No. 37452 138 East Market Street PO Box 2588 York,PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 3 ;:~~ _-,,,,.,,1, _ ,_ ^ ,_~" '_ _~_ ,_ _ ~ ,-<{.' - ,- ,0 ,. 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRALPA NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED VERIFICATION I verify that the statements made in the foregoing PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT are true and correct to the best of my knowledge, information and belief. This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authored by counsel in his capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pac C.S. S 4904, relating to unsworn falsification to authorities. WASTE MANAGEMENT OF PENNSYLVANIA, INC., t/d/b/a WASTE MANAGEMENT OF CENTRAL PENNSYLVANIA Date: /t?/z7'~o , , By: ~:I - .~._". ,',"-5 - ~ IlIIIJ!!I!I!! " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certify that I served a true c ~r, and correct copy of the within PLAINTIFF' REPLY TO NEW MATTER OF DEFENDJE:RT,:" .-, 0 .' , n Q''''~ ; ~ --I o~.~ (..) :;0 ::.:-.:~ 0 ~~ ==- ~ i-: c -z. . U-) _ f'(1 .. by first class mail, postage prepaid, on the following: Mark Wo Allshouse, Esquire Stephen C. Nudel, PC 219 Pine Street Harrisburg, P A l7 I 0 1 - :.."" w >J -< l~ :', STETLER & GRIBBIN Date: /v/~z>/= <' By: ~~_~ Walter A. Tilley, III 13 8 East Market Street PO Box 2588 York,PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 j;i ~'-""' ," . -~-<--" ,'" -,-, >-~., , .-, r, ", ~ , PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and suJ::mitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: please list the within matter far the next Argunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entiIe caption must be stated in full) WASTE MANAGEMENT OF PENNSYLVANIA, INC., t/a/b/a WASTE MANAGEMENT OF CENTRAL PA ( Plaintiff) vs. HAMPDEN CENTER, INC. ( Defendant) No. 5417 Civil 2000 Xl\9{ 1. State matter to be argued (Le., plaintiff's motion for new trial. defendant's demurrer to complaint, etc.): Plaintiff's Motion to Amend Complaint 2. Identify =unsel who will argue case: (a) for plaintiff: Walter A. Tilley, III, Esquire ~s: Stetler & Gribbin, 138 East Market Street, PO Box 2588, York, PA 17405-2588 (b) far defendant: Mark W. Allshouse, Esquire ~s: Stephen C. Nudel, PC, 219 Pine Street Harrisburg, PA 17101 3. I will notify all parties in writing within two days that this case has been listed for argunent. 4. Argunent Court Date: October 24, 2001 Dated: ~~~ Attorney far Plaintiff ,~ ~ ~""--' o~, . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certify that I served a true and correct copy of the within PRAECIPE FOR LISTING CASE FOR ARGUMENT by first class mail, postage prepaid, on the following: Mark W. Allshouse, Esquire Stephen C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 STETLER & GRIBBIN Date: t/2...~z>/ By: ~~~_ Walter A. Tilley, III 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 7 17-845-4931 I..", :, - "-f ~",-'~< 7 ,-'".--. .~" I {: 'o.".h",' 5'~ ,0', ~ "-0 . ...... , ...... ...... "'..','",..,' ,J _~ (") r "1;~ iiii: -< ":. r:..: j~-J ~,:~ ~~ -~;-^ , ~,~J_~ ".-, C) ~l~; C) [W) . 'r_. -~~. , , w 'h .." -~~..,.,. -,"."-' "'..,.. ARGUMENT COURT OCTOBER 24. 2001 BEFORE HESS. OLER. JJ. # 28 WASTE MANAGEMENT OF PENNSYL VANIA, INC., t/b/d/a WASTE MANAGEMENT OF CENTRAL PA, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW HAMPDEN CENTER, INC., Defendant NO. 00-5417 CIVIL TERM Motion: Motion to Amend Complaint Briefs: Brief in Support of Motion to Amend Complaint Facts: Plaintiff filed a complaint for unpaid services based on contract between the 'parties for disposal of cardboard. Plaintiff included in its complaint a claim for damages of $5,500 for an unpaid monthly charge of $1,100. (Liquidated damages clause in contract permits party to seek damages for breach in the amount of five times monthly charge.) Since filing, Plaintiff learned that the most recent unpaid charge was $610 higher than originally alleged and that Defendant is in arrears for $7,501.68. Plaintiff requests to amend the complaint to increase damages to $ 8,550 and to include arrears as part of damage claim. Arguments: Plaintiff argues that the Defendant will not be prejudiced by increasing measure of damages since it does not introduce a new cause of action. Defendant does not stipulate or object. "'~'I"""''''lII",""''',"~, !'if"tj _",.. V-~f~ ~,_....~_~.^', ...h"., "',...'''.".?''".~'' . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CNIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED BRIEF IN SUPPORT OF MOTION TO AMEND COMPLAINT Procedural History On September 7, 2000, Plaintiff, Waste Management of Pennsylvania, Inc., filed a Complaint against Defendant, Hampden Center, Inc., seeking payment for unpaid services that Plaintiff provided to Defendant. On September 22, 2000, Defendant filed an Answer and New Matter denying that it owed Plaintiff money for the services provided by Plaintiff. Statement of Facts In April 1998, Plaintiff and Defendant entered into a contract pursuant to which Plaintiff provided certain containers for waste disposal and recycling of cardboard. Waste Management would periodically empty these containers. In consideration for these services, Hampden Center was to pay the reasonable charges imposed by Waste Management. A true and correct copy of the contract, called a Service Agreement for Non-Hazardous Waste, is attached as "Exhibit A". Pursuant to the terms of the contract, the Agreement was to have a term of three years. In the I l'~lm,~, ~ 'r' , - N~~ ~" ~ ..~""'" event Defendant terminated the contract before the end of the term, Plaintiff was entitled to liquidated damages in the amount of the most recent monthly charge, multiplied by five, or the remaining months in the current term, whichever was less. On November 15, 1999, Defendant, by its counsel, notified Plaintiff of its intent to prematurely terminate the contract. A true and correct copy of this notice is attached as "Exhibit B". In its Complaint, Plaintiff alleged that the most recent monthly charge incurred by Defendant prior to the premature termination of the contract was $1,100.00. In paragraph 7 of the Complaint, Plaintiff alleged that it was entitled to judgment in the amount of $5,500.00, plus costs of suit. Plaintiff has recently learned that the most recently monthly charge incurred by Defendant prior to the premature termination of the contract was $1,710.000 Thus, Plaintiff seeks to amend its Complaint to allege an entitlement to judgment in the amount of $8,550000. Plaintiff has also learned that Defendant has incurred $7,501.68 in arrears and finance charges, Plaintiff seeks permission to include these amounts in its Amended Complaint. 2 "~," , ';.. ,"<'" 'r~ ,~ , -~ Issue WHETHER THE COURT SHOULD ALLOW PLAINTIFF TO AMEND ITS COMPLAINT TO REFLECT THE AMOUNT OF DAMAGES ACTUALLY SUFFERED BY PLAINTIFF? (Suggested Answer: Yes) Argument THE COURT SHOULD ALLOW PLAINTIFF TO AMEND ITS COMPLAINT TO REFLECT THE AMOUNT OF DAMAGES ACTUALLY SUFFERED BY PLAINTIFF. Pursuant to Pac R.C.P. 1033, "A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading." Whether a party is permitted to amend its pleading is within the discretion of the trial court. Sands V. Forrest, 290 Pac Super. 48, 52, 434 A.2d 122 (1981). Although allowance of an amendment is within the discretion of the court, the right to amend should be liberally granted unless an error oflaw would result, or the adverse party would be prejudiced. Id. In Sands, Plaintiff brought an action based on fraudulent misrepresentation and claimed as damages the cost of making the necessary repairs to the real estate in the amount of $40,000.00. Id. at 50. At trial, Defendant objected that the cost of making the repairs was not the proper measure of damages. Id. at 50-5 I. The trial court held that the proper measure of damages was the difference between the actual value of the property and the value if it had been as represented by Defendant. Id. at 51. The Superior Court held that Plaintiffs "should have been permitted to amend their complaint to alh:ge a correct measure of damages." Id. at 52. 3 i'j'Q1"l,. """1"""1' - ~ - , ,,'~ The court reasoned that "defective averments of damages are among the errors which are frequently corrected by amendments." Id. at 520 When the defendant is not prejudiced by the amendment, it is reversible error to refuse to permit plaintiff to amend the measure of damages. Id, at 53. "'When a plaintiff avers a good cause of action, but makes a mistake as to the measure of damages to which he is entitled or sets forth the wrong measure of damages, a change in the measure of damages alone.. . does not amount to the introduction of a new cause of action and is always proper.''' Id. at 52 (quoting 3 St. Pac Prac. 937, p. 714 (footnotes and citations omitted)). As in Sands, Plaintiff, in the present case, seeks permission to correct the measure of damages. In its original Complaint, Plaintiff alleged that the most recent monthly charge prior to Defendant's premature termination of the contract was $1,100.00. In fact, Plaintiff has learned that the most recent monthly charge prior to premature termination was $1,710.00. The amount of liquidated damages for premature termination of a contract is calculated by multiplying the amount of the most recent monthly charge by five, or the remaining months in the current term, whichever is less. Therefore, Plaintiff is entitled to judgment in the amount of $8,550.00, rather than the $5,500.00 alleged in the original Complaint. Plaintiff has learned that Defendant has not paid for services and has incurred fmance charges, totaling $7,501.68. Similar to Sands, Defendant will not be prejudiced by Plaintiff amending its Complaint, as it does not seek to introduce a new cause of action. WHEREFORE, Plaintiff, Waste Management of Pennsylvania, Inc., t/d!b/a Waste Management of Central P A, respectfully requests your Honorable Court to permit Plaintiff to amend its Complaint to include a monthly charge in the amount of $1,710.00 in paragraph 6 and 4 :r~i!'~,.a,,,,_.ftI!'!~ _. "Pill"., "" liquidated damages in the amount of $8,550.00, plus adding a claim for $7,501.68 for arrears and fmance charges, plus costs of suit, in paragraph 7. Respectfully submitted, STETLER & GRIBBIN Date: /P/;::/e>/ By: ~:.-'-~~'"'2........... Walter A. Tilley, III Attorney for Plaintiff Attorney I.D. No. 37452 13 8 East Market Street PO Box 2588 York,PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-493 I 5 "'"",0 ." J." .,' , ~'" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, : me., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certify that I served a true and correct copy of the within BRIEF IN SUPPORT OF MOTION TO AMEND COMPLAINT, by first class mail, postage prepaid, on the following: Mark W. Allshouse, Esquire Stephen C. Nudel, PC 2 I 9 Pine Street Harrisburg, P A 1710 I STETLER & GRIBBIN Date: /,,?/y/?>/ By: ~~~~~__ Walter A. Tilley, III 13 8 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 j\j;~, , " - , . ',--- " "~- ._.~ " -"~-~."",,-. "" "Yl'.t1"L'" L<JAl"AlXJ!.:lVJJ;";NT OF 6ENTRALPA f ~\ 4.300 INDUSTRIAL PARK RD ~ CAMP HILL PA 170115717 (717) 232-0878 F= (717) 763.9153 3~~\ om. NI\ME 00' HAMPDEN CENTER-ABC BLDG ~~ iiTREEi NUMEER QIR STRSET N4ME I""~' 4900 CARLISLE PIKE l.;i" \,~,!, MECHANICSBURG r'Jim LOCIITION I:~ eH><' ":,;:,", 212 545-1910 Ii!~ ,-,ti CREDIT REFERENCE ~1~ INCORPOAATEll COlJNlY STATEfPflOViNCE CUM PA 01/01/93 SERVICE AGREEMENT' NON-HAZARDOUS WAS1 1196776 CO COMMERCIAL.CPA l.UNGSTAT AP ACTIVE PICKUP EFFEOTIVE DATE ZIp/POSTAL CODE 17055 01l01{93 TEMPSEI'V No UNIT' SEOURITYREOUlflEO b ~~ . . SERVltE El'FECllUE DAlE: _ _ ~~.,-,--o=- 04115/98 F ?I'\ORL5 """''-'' "'''rE R 1li:.R-JlC=DII....S orY DESCFIIPTION'COMMENfS NUMBER ""'","" 10 E 0 U " T W H F , 2 S YD FfI., CONTAINR.WM x DOS 006 F 1 6 YD FfI., CARDBD CONT x 101 1 SYD FfI., CARDBD CONT x 101 'K T F THIS IS A LEGALLY BINDING CONTRACT AND YOU AGREE TO ACCEPT THE SERVICES AND EQUIPMENT AT CHARGES AND FREOUENGY INDICATED ON THIS AGREEMENT SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED, CHANGES IN YOUR SERVICE LOCATION WITHIN OUR SERVICE AREA SHALL NOT AFFECT THE TERMS OF THIS AGREEMENT UNLESS WE PROVIDE 30 DAYS WRITTEN NOTICE OF TERMINATION. "'ME LAVIPOVRCOMPANY A 'SO """'" S1AEEI NUMBER DIR STREET I'JO.ME 444 PARKAVESROOM802 OTV STATI;IPROVINCE 21P/f'OSTAL COOE 100167321 NEWYORR NY MONTHLY WASTE REMOVAL. COMMERCIAL MONTHLY RECYCLE SERVICE. COMMERCIAL. CONTAINER.EXTRA PICKUP RATE " " AOOlTIO lhlSTflJ...cnONS{fERMS: SERVICE AT VARIOUS LOCATIONS WITHIN HAMPDEN CENTER. ~a~3~~P~ :;i " iii I,: , , iNI;ID~rlJA~ SPE&iIlL WASli TVPES IlIID AMOUNTS: Printed On: 04123/99 15:35 THE TERMS AND CONDITIONS ARE PART OF THIS AGREEMENT "Exhibit A" """""'"'" ~ "~~ ,.".- PHONE 212545-1910 CD ACT ~EFiAl:.CCum 1196776 DAVID LA VIPOR RELAiEllACCOtMT ~ORACCOlJNT PUFlCH6.SE ORDER NUMI!El'I " " R3CEIVEV :.\'I'ETLEf.~ &: GRHiBH,.j !~.b Y H \~ 'Jnrj;f~ \ .. .,' .~.~.,~l.,l i:;~: f-".A.(;"p ui '. '.';-j, ",' F(l Bey ').:;~~~', \,i)r..~Ji: '~Ift, '~7~;'(~~~ P~Cf".Jl. 1 of <) -~, .11 '3rZ_ v Service Agreement ) ':rhis Service Aw"eem.ent, which includes any exhibits attached to it, is made as of the date shown below between HAMPDEN CEN'I'ER.ABC BLDG and WASTE MANAGEMENT OF OENTRAL PA 1. SERVIOES PROVIDED We will provide you with non-hazardous solid waste collection, transportation, disposal and recycling services. We will have the exclusive right to provide such services tci you. If we handle special waste for you, Jrou will provide us with a Generato~s Waste Prome Sheet C'Proflle Sheet'!) describing all special waste, and provide a representativesample of the special waste on request. Yau warrant that no solid waste you deliver to us is a special waste or a h.a.zardous waste. If any of your waste con.tains materials which. do not conform to the descriptions in this Agreement or in a Prome Sheet ("Jlon~conforming waste I'), we can, at our option, return it to you or require you to remove and dispose of the non-conforming waste at your expense, and reimburse us for any expenses we have incurred. Special waste includes the following: all treatedjde-characterized(formerly hazardous) wastes; polychlorinated biphenyl ("PCB") wastes; industrial process wa.stes; asbestos containing material; chemical containing equipment; demolition debris; incinerator ash; medical wastes; off~spec chemicals; sludges; fiJlill-cleanup wastes; underground storage tank ("UST") soils; and. wastes nom ae-'I'Vic.e industries. 2. INDEMNIFICATION We agree to indemcify, defend and save you harmless from and agai1lSt. any and sllliabUity wbichyou may be responsiblefor 01" payout as a :result of bodily injuries (including deathL property damage, or any violationor alleged violationof law, to the extent caused by any negligeut act, negligent omission or will.ful:miscondud of us or ow 2mplOJ'E-ss, which occurs (1) during the collection or transportation of your wa6f.e, or (2) alS a result of the disposal of your waste1 after the .date of this Agreement, in .a facility oWJled by a aubsidiary of Waate Management, Inc.; provided that our indemnifi.cationobligationswill not apply to occurrences involvingnon-conformingwaste. You agree to indeInIlify, defend and save: us hamlless from and aga.iP.st any ana allliabilitywhicb. we may be responaiblefor or payout as a :result of bodily injuries (including death), property damage, or any violation or alleged viola.tion of law to the extent caused by your breach of this A.greement or by a.n.y negligent a.ct, negligent Omi.SsloIl or willful mlsCODduct of you or your employees, agents or contractors in the performance of this Agreement. Neither party shall be liable to the other for consequeD.:tial,incident~lor punitive damages arising out of the performance oftbisAgreement. 3. USE OF EQUIPMENT The equipment we.furnish to you will remain our property. You will be responsible for any las6 or damage resulting fromyou:r handling of the equipment, except for normal wear BJld tear. You will not overload by weight or volume, move or alter the equipment and will take reasonable precautions to prevsnt others from doing the same. Yau will use the equipment only for its intended purpose. On collection day, you will provide unobstructed access to the equipment. If the equipment is inacceSSl'bll:. or overloaded by weight or volume. your aenrice will he subject to llll additional charge. We will not be responsible for damage to your drivingaurfaces resultingfram the weight of our vehicles or equipment. 4- FEES Yau agree to pay us the fees set forth herein in accordance with the payment terms of our invoice. We may increase your fees from timeto time to reflect changes in regulations, taxes, the CPI, disposal and processing facility fees and fuel prices, plus a reasonable margin. Subject to your approval, the fees may be s.djusted for other reasons. Fee adjustments requiring yaw approval may be ag;reed to verbally, in writing, or by our actious, such a.s your payment of our in,voices. W e will give you. written notice offee adjustments. W ~ reserve the right to charge a late fee no greater than that allowe.d by law. If I1disposal" is liated as a separate component of the fees, an appropriate handling charge may be added to the disposal facility'sposted gate rate. 5. TERM The term of this Agreement will be three years from the service effective date, and will be automatically renewed for successive tb:ree~yea:r- terms. Either of us may terminate the Agreement by giving the other written notice of termination by certified Dr overnight mail not less than sixty days before the expiration of an initial or renewal term. If you ternUnatethisAgreementduring the initial term, or we terminate due to non-payment.you will pay us as liquidated damages, and not as a penalty, the amount of your most recent monthly charge multipliedby five, or th.e remaiDingn1.UUber of montbsin the current term) "..-hichever ii51e.se. If you tE-rIr'..i:o.ate thisAgrelmlE-ddurlng a renewal term, you will pay us .liS liquidated damages, and not &s e. penalty, the amoUIlt of yaw: roost recent monthly charge multipliedby tm:-ee, or the remaining nuro.ber of months in. SI.lch renewal term, whicheveris less. 6, MISOELLaNEOUS This Agreement will be governed by the laws Df the state in which services are performed, and. is binding on the 6Ucce~rs and assigns of both of us. The indernnificationmade by each of us will survive termination of this Agreement. We will be entitled to recover om attorneys' fees and coW"!; costs in emorcing this Agreement. This Agreement supersedes any prior Service Agreements hetween us for locations and services covered by this Agreement.A fax signature of any parg, sha11be considered to have the s!l.IIl.e binding legal effect as an originalsignaiure. IN WITNESS WHEREOF, this Agreement has been signed by the authorized l'eprese~tatives of the parties on 04123/98 Account Num.ber: U96776 IMMPDENCENTER~BCBLDG (Customer Name) By: ;rH~ * Name: ~\'l A- BU11l'\<rNNJ 'f- Tille r~<VRW\ IJI&( selVcon3.090297 - -""""_,w""'" . "~.~ . " / LAW OFFICES STEPHEN C. NUDEL, PC 219 Pine Streer Harrisburg, Pennsylvania 17101 STEPHEN C. NUDEL TRACY L, McNAMARA (717) 236.5000 FAX {717J 236.50BII November 15, 1999 Mr. Chris Blasko Waste Management of Central PA 4300 Industrial Park Road Camp Hill, PA 17011 i I I I I i Ii [ Re: Hampden Centre Shopping Center Dear Mr. Blasko: This firm represents Hampden Center, Inc. and Lavipour & Company, LLC with respect to the Service Agreement entered into with your company for its disposal services at Hampden Centre Shopping Center. This letter serves as formal notice that, effective November 30, 1999, the Service Agreement will be deemed terminated. My client has provided you with numerous notices of deficiencies of your service. In addition, Waste Management has unilaterally increased the fees despite the provision for a 3 year price guaranty. On November 30, 1999, you are directed to cease operations and remove your dumpsters from the premises. Note that nothing in this letter shall constitute a waiver of any right or remedy of my client against you. , ver.y t:;':JO:J;~/'J!' tJ2' rs ',' /.'4 "'/~ ?t.;f.'~-.t:/' , /.., / " ,,' /J~,{/ ~y gfqNudel . SCN/kb cc, Mr. David F. Lavipour "Exhibit B" ".~--- .~- -"~- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CNIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED BRIEF IN SUPPORT OF MOTION TO AMEND COMPLAINT Procedural History On September 7, 2000, Plaintiff, Waste Management of Pennsylvania, Inc., filed a Complaint against Defendant, Hampden Center, Inc., seeking payment for unpaid services that Plaintiff provided to Defendant. On September 22, 2000, Defendant filed an Answer and New Matter denying that it owed Plaintiff money for the services provided by Plaintiff. Statement of Facts In April 1998, Plaintiff and Defendant entered into a contract pursuant to which Plaintiff provided certain containers for waste disposal and recycling of cardboard. Waste Management would periodically empty these containers. In consideration for these services, Hampden Center was to pay the reasonable charges imposed by Waste Management. A true and correct copy of the contract, called a Service Agreement for Non-Hazardous Waste, is attached as "Exhibit A". Pursuant to the terms of the contract, the Agreement was to have a term of three years. In the 1 ""~ , "~'~:"~"''i> ,. .-. ~,~"--"- ."On ':'- .~., "r"." __ __ml: event Defendant terminated the contract before the end of the term, Plaintiff was entitled to liquidated damages in the amount of the most recent monthly charge, multiplied by five, or the remaining months in the current term, whichever was less. On November 15, 1999, Defendant, by its counsel, notified Plaintiff of its intent to prematurely terminate the contract. A true and correct copy of this notice is attached as "Exhibit B". In its Complaint, Plaintiff alleged that the most recent monthly charge incurred by Defendant prior to the premature termination of the contract was $1,100.00. In paragraph 7 of the Complaint, Plaintiff alleged that it was entitled to judgment in the amount of $5,500.00, plus costs of suit. Plaintiff has recently learned that the most recently monthly charge incurred by Defendant prior to the premature termination of the contract was $1,710.00. Thus, Plaintiff seeks to amend its Complaint to allege an entitlement to judgment in the amount of $8,550.00. Plaintiff has also learned that Defendant has incurred $7,501.68 in arrears and finance charges. Plaintiff seeks permission to include these amounts in its Amended Complaint. 2 ; _', ,_,J" ,,"~,_,,_ "~,U~_ ,-^, ,","C-.-, _ _ "~'_ ,~,<_,,~, ,,6- _.", - _ Issue WHETHER THE COURT SHOULD ALLOW PLAINTIFF TO AMEND ITS COMPLAINT TO REFLECT THE AMOUNT OF DAMAGES ACTUALLY SUFFERED BY PLAINTIFF? (Suggested Answer: Yes) Argumeut THE COURT SHOULD ALLOW PLAINTIFF TO AMEND ITS COMPLAINT TO REFLECT THE AMOUNT OF DAMAGES ACTUALLY SUFFERED BY PLAINTIFF. Pursuant to Pac RC.P. 1033, "A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading." Whether a party is permitted to amend its pleading is within the discretion of the trial court. Sands V. Forrest, 290 Pac Super. 48, 52, 434 A.2d 122 (1981). Although allowance of an amendment is within the discretion of the court, the right to amend should be liberally granted unless an error of law would result, or the adverse party would be prejudiced. Id. In Sands, Plaintiff brought an action based on fraudulent misrepresentation and claimed as damages the cost of making the necessary repairs to the real estate in the amount of $40,000.00. Id. at 50. At trial, Defendant objected that the cost of making the repairs was not the proper measure of damages. Id. at 50-51. The trial court held that the proper measure of damages was the difference between the actual value of the property and the value if it had been as represented by Defendant. Id. at 5 I. The Superior Court held that Plaintiffs "should have been pennitted to amend their complaint to allege a correct measure of damages." Id. at 52. 3 ~ ~. -'- ~-, "." -'. ,-~" -~ ," -.,.., -, lJl!lM;t'-' The court reasoned that "defective averments of damages are among the errors which are frequently corrected by amendments." Id. at 52. When the defendant is not prejudiced by the amendment, it is reversible error to refuse to permit plaintiff to amend the measure of damages. Id. at 53. '''When a plaintiff avers a good cause of action, but makes a mistake as to the measure of damages to which he is entitled or sets forth the wrong measure of damages, a change in the measure of damages alone.. .does not amount to the introduction of a new cause of action and is always proper. ", Id. at 52 (quoting 3 St. Pac Prac. 937, p. 714 (footnotes and citations omitted)). As in Sands, Plaintiff, in the present case, seeks permission to correct the measure of damages. In its original Complaint, Plaintiff alleged that the most recent monthly charge prior to Defendant's premature termination of the contract was $1,100.00. In fact, Plaintiff has learned that the most recent monthly charge prior to premature termination was $1,710.00. The amount of liquidated damages for premature termination of a contract is calculated by multiplying the amount of the most recent monthly charge by five, or the remaining months in the current term, whichever is less. Therefore, Plaintiff is entitled to judgment in the amount of $8,550.00, rather than the $5,500.00 alleged in the original Complaint. Plaintiff has learned that Defendant has not paid for services and has incurred finance charges, totaling $7,501.68. Similar to Sands, Defendant will not be prejudiced by Plaintiff amending its Complaint, as it does not seek to introduce a new cause of action. WHEREFORE, Plaintiff, Waste Management of Pennsylvania, Inc., t/dlb/a Waste Management of Central P A, respectfully requests your Honorable Court to permit Plaintiff to amend its Complaint to include a monthly charge in the amount of $1,710.00 in paragraph 6 and 4 "'--'3-<?':"'~-<:,"':---~_'~-- ,-' e, ;~- ,- ,-- ''''0,__'''''''" P'T'- ,c"O""~_ '~r"""",;"=_'_' '., liquidated damages in the amount of $8,550.00, plus adding a claim for $7,501.68 for arrears and finance charges, plus costs of suit, in paragraph 7. Respectfully submitted, STETLER & GRIBBIN Date: /~'{'/z>/ By: ~.... ~~--- Walter A. Tilley, III Attorney for Plaintiff Attorney J.D. No. 37452 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRALPA NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certify that I served a true and correct copy of the within BRIEF IN SUPPORT OF MOTION TO AMEND COMPLAINT, by first class mail, postage prepaid, on the following: Mark W. Allshouse, Esquire Stephen C. Nudel, PC 219 Pine Street Harrisburg, P A 1710 I STETLER & GRIBBIN Date: /~/.v""'/ By: ~~52&?~- Walter A. Tilley, III 13 8 East Market Street PO Box 2588 York,PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 -',~~ - -.,," .'" '. " -,. -;",<--~ ';;-<-~,.C'~,,-.' . ',_""',_' _""-" ''', _ _.' .".., "7~_ " ~ " Wi...'']']:!; lVJANAU1!:MENT OF CENTRAL PA {~\ 4.300 INDUSTRIAL PARK RD ~ CAMP lliLL' PA 170115717 ..tI'AJ, (717) 232.0878 Fax: (717) 763-9153 3i~\ 1..1' NOORPOR/l.TEO c.oumY STAT!:IPfP/INOE CUM PA 01}01}93 SERVICE AGREEMENT' NON-HAZARDOUS WAS1 1196776 00 OOMMEROIAL-CPA BlLUNG STAT AP AOTIVE PICKUP EFFECTlVE~TE Z1P(POSfA\. CODE 17055 01l01}93 TEMP SERf No UNITS SECURITY AEolUAED b '-r...eW j\A.:tL SERVICE EFFE&llVE DAlE: . 'l~~~--~-=- 04.}15}98 c c S F 0 U H WASiE PP.ORLE PROALE ROUT' . SEFMCE oo.YS QIY OES~PTlDt>l'OOMMENTS N , A IYFE NUMBER f);:pfRES 10 , T T A 0 U " T W H , , 2 8 YD FIL CONTAINR-WM x 008 006 F 1 6 YD FIL CARDBD CONT x 101 F 1 8 YD FIL CARDBD CONT x 101 F THIS IS A LEGALLY BINDING CONTRACT AND YOU AGREE TO ACCEPT THE SERVICES AND EQUIPMENT AT CHARGES AND FREQUENCY INDICATED ON THIS AGREEMENT SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED, CHANGES IN YOUR SERVICE LOCATION WITHIN OUR SERVICE AREA SHALL NOT AFFECT THETERMS Of THIS AGREEMENT UNLESS WE PROVIDE 30 DAYS WRITTEN NOTICE OF TERMINATION. , "'ME LAVIPOURCOMPANY AD , AOORElI' STAEEi N\.lMBEFI DlR. STREET >>tiME 444 PARK AVE S ROOM 302 CIlY STA~PROVINCE ZlP/POSTAL CODE NEW YORK NY 100167321 MONTHLY WASTE REMOVAL. COMMERCIAL MONTHLY RECYCLE SERVICE - COMMERCIAL. L CONTAINER-ID..'TRA PICKUP RATE x x ADDI INSllll.kJTIOtJEl(fERMS: SERVIOE AT VARIOUS LOOATIONS WITHIN HAMPDEN CENTER. f?;a~ 3~:W p~ , 1Il&IDENTAL SI'EIIlIAL !HAliTE mES AND AMOUNTlI: , THE TERMS AND CONO'TIOI,S ARE PART OF THIS AGREEMENT Printed On: 04/23/98 15:35 "Exhibi t A" = ~~ PHONE 212 546-1910 CONCA DA VlD LA VIPOR IJASrEF\ACOOOO FlaAl"EDJ\ccoum 1196776 MlWORACCOllNT PURCfia\SE Ol'lDlm NUMBER " x ,,, .,... ,RSCEIVEb ,,1<'.1! C1[' ", ('''I'I.'.B')' -""'-... (l., ~'J\. .'1 1"), M II V I"'; c, "~t.f-f\ I <.~ t J;.l t,Vdu Uk FA.~;'Y' r-.A '. ,-' y_) ".' -'.(1. fiG);: :i,-:i~~:-F \'t)'R.I~. 1),1.. 't'~~(~'.' . . r-~ 1) P~rrf> tJ. 1 ,.,f I) "" ", '~(( v . Serv}ce Agreement I I' This Service Ag3."eemen.t, which includes any exhibits attached to it, is made as of the date eh.own below between HAMPDEN CENTER-ABC BLDG and WASTE MANAGEMENT OF CENTRAL PA 1. SERvrCESPROVIDED We will provide you with non-ha.za.rdous solid waste collection, transportation., disposa.l and recycling services. We will have the exclusive right to pl'ovide such services to you. If we handle epacial waste. for you, you will pro~/ide us with a Generator'ls Waste Profile Sheet ("Profile Sheet") describing allspecia.l waste, and pl'ovide a representativesample of the 6pecial waste on requeet.. You warrant that n.o solid walSte you deliver to us i5 a ::peeial waste or a hazardous waste. If any of your waste contains materials which do not conform to the descriptions ill this Agreement or in a Profile Sheet ttnon-conforming waste"), we caIl, at our option, return it to you or require you to remove and di.spolSe of the non-conformin.g Waste at YOUl" expense, and reimburse us for any expenses we have incurred. Special waste includes the fonowing: all treated/de-charactenzea(formerly hazardous) wastes; polychlorinated biphenyl ("PCB") wastes; industrial process wastes; asbestos containing material; chemical containing equipment; demolitiondebrisj incinerator ash; llledical wastes; off.spec chemicals; sludges; spill~cleanup wastes; undergroun.d storage tank (tlUST') soils; and wastes from service industries. 2. INDEMNIFICATION We agree to indemnify, defend and save you harmless from and against any e.nd all liability wbichyou may be responsiblefor or payout as a result of bodily injuries (including death)l property dalllagel or any violationor alleged violation of law, to the extent caused by any negligent act, negligent omission or willfulmisconduot of us or our employeesl '.'Vhich oceurs (I) during the collectionor transportation of your wastel or (2) a6 a result of the disposal of your wastel after the .date of this Agreement, in '8 facility owned by 8 subsidiary of Waate Management, Inc.; provided that our indemnificationobligationswill not apply to occurrences involvingnon-conformingwaste. You agree to indemnify, defend and save us harmless from and against any and all liability which we may be responsible for or payout as a result ofbodily injuries (including death), property damage, or any violatlonar alleged violation of law to the extent caused by your breach of this Agreement or by any negligent act, negligent omission or willful misconduct of you or y.our employeesl agents or contractors in the penormance of this Agreement. Neither party shall be liable to the. other for conaequen~ial,incideutal or punitive-damages arisin.g out of the performs.llceofthisAgreement. 3. USE OF EQUIPMENT The equipment we furnish to you will remain our property. You will be responsible for any 10s6 or damage resulting from your handling of the equipment, except for normal wear and tear. You will not overload by weight or volume, move or alter the equipment and will take reasonable precautions to prevent others from doing the same. You will use the equipment only for it5 intended purpose. On collection day> you will provide unobetructed access to the equipment. If the equipment is inaccessible or overloaded by weight or volume, your service will be subject to an additionslcharge. We will not be responsiblefor damage to your driving surfaces. resulting from the weight of our vehicles or equipment. 4. FEES You agree to pay us the fees set forth herein in accordance with the paymeut tenus of our invoice. We may :increase your fees from time to time to reflect cha:oge6 in regulations) taxes, the OPI, disposal and processing facility fees and fuel prices, plus a reasonable margin. Subject to yow' approval, the fees may be adjusted for other reasons. Fee adjustments requiring your approval may be agreed to verbally, in writing, or by our actions, such s.s your payment of our invoices. We will give you written notice offee adjwdm.ents. We reserve the right to charge a. late fee n.o greater than that allowed by law. If "disposal" is listed as 8. separate component of the fees, 8.n appropriate handling charge may be added to the disposal facility'sposted gate rate. 50 TERM The term of this Agreement will be three years from the service effective date, and. will be automatically renewed for successive three-year terms. Either of us may terminate the Agreem.entby giving the other written nGtice of terminationby certified or overnight mail not less than sixty days before the expiratiouof au initial or ren.ewal term. If yeu terminatetbiaAgreemelltduring the initial term, or we tenninatedue to non.payment,you will pay us as liquidated damages, and not :as a penalty, the amount of your most. recent monthly charge multipliedby five, or the remainingnwnber of monthsin the currant term, whichever is lese. If you terminate thisAgree::meutduring a re~wal term, you will pay us as liquidated damages. and not a,S a penalty, the amount of your roost recent monthly charge multipliedby three, or the remaining number of months in such renewal term, whichever is less. 6, MISCELLANEOUS This Agreement will be governed by the laws of the state in which services are performedl and is binding on the successors and assigns ofboth of us. The indernnificationmade by each of us will m:u:vive terminationof this Agreement. W e will be entitled. to recover our attorneys' fee5 and cowt costs in enforcing this Agreement. This Agreement supersedes any prior SelVice Agreements between us for locations and services covered by this Agreernent.Afax signature of any party shall be considered to have the same binding legal effect as an original signature. IN WITNESS WHEREOF, this Agr-eement has been signed hy the authorized represe~tatives of the parties on 04/23/98 Account Number: 1196776 HAMPDENCENTER~BCBLDG ICuslomer Name) BY:~ .J. Name: ~NPr BuJ ~N1 '1- 'fit]. r W'VR 111\ ~ &{ servcon3.090297 - "' / . LAW OFFICES STEPHEN C. N1JDEL, PC 219 Pine Street Harrisburg, Pennsylvania 17101 STEPHEN C. NUDEL TRACY L. McNAMARA (717) 236.5000 FAX (717) 236-S080 November 15, 1999 - -""," Mr. Chris Blasko Waste Management of Central PA 4300 Industrial Park Road Camp Hill, PA 17011 Re: Hampden Centre Shopping Center Dear Mr. Blasko: This firm represents Hampden Center, Inc. and Lavipour & Company, LLC with respect to the Service Agreement entered into with your company for its disposal services at Hampden Centre Shopping Center. This letter serves as formal notice that, effective November 30, 1999, the Service Agreement will be deemed terminated. My client has provided you with numerous notices of deficiencies of your service. In addition, Waste Management has unilaterally increased the fees despite the provision for a 3 year price guaranty 0 On November 30, 1999, you are directed to cease operations and remove your dumpsters from the premises. Note that nothing in this letter shall constitute a waiver of any right or remedy of my client against you. very, tr}I;J,,~/y.&rs -.',' ",,,I," /~ ,;,/,/~~e;,/ , ;f' /L/---:;f[; gt " en;" Nudel " SCN/kb cc, Mr. David F. Lavipour "Exhibit B" .,. --, .:If,; NOTICE OF APPEAL COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS FROM Cumb~A\..dolfRt\ffity DISTRICT ,JUSTICE JUDGMENT NOTICE OF APPEAL COMMON PLEAS No,otcn? - 5'i{"'f '-I V,'\ ~lAS.j- :3, ~ Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. N,<\.ME OF APPELLA....T MAG. DIST. NO. OR NAME Of' P.J. HAMPDEN CENTER, INC. 09 - 3 - 04 AdDR"'SS OF APPELL.ANT CITY STATE ZIP CODE c/o 219 Pine Street, Harrisburg, PA 17101 gp.TE OF JUDGMENT '1'1 THE;; CA'5E OF (PI"inriffl (DefMcla>>rJ 7/20/00 Waste Mana ement of Center, Inc. CL.AIM NO. TORNEY OR AGE;;NT CV 1~ 0000207 -00 LT 19 This block will be signed ONLY when this notation is required under Pa. R,C,P,J.P. No, 1008B, This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. If appellant was Claimant (see Pa. R.C,P,J.P. No. 1001(6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONL Y when appellant was DEFENDANT (see Pac R.C,P.J.P, No. 1001(7) in action before District Justice, IF NOT USEO, detach from copy of notice of appeal to be served upon appellee), PRAECIPE: To Prothonotary Waste Management of PA, Inc. Name of appellee(s) (Common Pleas No, dL<:)c:Jc) - S'LiI t (. :,..1 Enter rule upon . appellee(sl. to file a complaint in this appeal y f judgment of non pros, RULE: To Waste Management of PA, Inc. ,appellee(s) Name of appellee(s) !J1]ature qf appllllant or his attorney or agent . Nude~, l$sqUl.re (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WI LL BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of mailing, LJ ~~. .~ (~~., Date: A~"+ 3 ,l!l 20.00 :tfelu.-r.L1IlJf" ',= I Si tdie' of P h o0'~-lY.!p(" Deputy ~'~,',~.. u~;r) -' , C") / I' -"':,fTi ~ ~~:: f>? z ';'.,J. ,::.-'::" =< {"j :::..: AOPC 312.90 COURT FILE TO BE FILED WITH PROTHONOTARY 'r'1"~' 'T~~"~_ ~- - ~- -" -~, PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FilE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DA YS AFTER filing the notice of appeal, Check Clpplicable boxes) COMMONWEAL TH OF PENNSYLVANIA COUNTY OF ;ss AFFIDAVIT: I hereby swear or affirm that I served i: I ,I " i! Ii ':; i I I ;i ,[ ;i o a copy of the Notice of Appeal, Common Pleas No. (dateofserviceJ ,19_, 0 receipt attached hereto, and upon the appellee, (name) ,19_0 by personal service , upon the District Justice designated therein on by personal service 0 by (certified) {registered} mail, sender's on o by (certified) (registered) mail, sender's receipt attached her~to. o and further that I served_ the Rule to whom the Rule was-addressed on mail, sender's receipt attached. hereto. File a Complaint accompanying the- above "Notice of Appeal upon the appellee(s) to -, 19~, 0 by personal ser~ice 0 by (certified) (registered) Ii :'1 SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAYOF . 0.19_, " ii' i! 'I Signawfe of affiant . Signatl,Jre of official before whom affidavit was made Title of official My commission expires on ,19_, " " t z ~l .'r'-.-- ~:I~~] -!:;-:.: ,ULLl -LlC.L -os;: 3 (") "c':...' '0 0.~1 -,-) ~ (---:.l i ---_._~-_...._- - IiIIIIllflllll!ill_.411 -i~_MlIliLM~''''''''-'"R'''''''''''''''"Wi'~*f';'-'i:{;'i':;-~''',!;,,?'''']'''''''''''!"'""'??""'''.'t'r''''W~%l"FWfIlJ!IIl'(4'li~~ , 1; .-" '" COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CtlMBERLAND 09-3-04 NOTICE OF JUDGMENTITRANSCRIPT CIVil CASE PLAINTIFF: NAM..",ADDRESS lWASTE MANAGEMENT OF PA, INC. ..., 4300 INDUSTRJ:AL PARK RD. CAMP HILL, PA 17011 M8g.DItiI.No.: OJ Nam.: Han. TROMA,S A. PLACEY Add"ss; 104 S. SPORTING HILL RD. MECHAlUCSBtl'RG, PA L .J T......,,, (717) 761-8230 17050 VS. DEFENDANT: N........ADDReSS ~EN CENTER, INC. 4900 CARLISLE PIKE MECHANICSBtl'RG, PA 17055 L Docket No,: CV- 0000207 -00 Date Filed: 6/14/00 ..., THOHAS A. PLACEY 104 S. SPORTING RILL lU>. MECHANICSBtlRG, PA 17050 .J :' THIS IS TO NOTIFY YOU THAT: Judgment: D'RFJl.m.T JTIT)r::M'R'IiM' PT,'I'l" [!] Judgment was entered for: (Name) W!.!'l'l'F. M!.Nll.r.'RM1'!N'I' fl1> 'Oll.. TN.... [!] Judgment was entered against: (Name) 'R1lMPnlnT ....F.t.PPF.R nl'~ in the amount of $ <; <;1l7 nn on: (Date of Judgment) 7/?n Inn o Defendants are jointly and severally liable. (Date & Time) o Damages willce assessed on: Amount of Judgment $ 5.500.00 Judgment Costs $ 97.00 o This case dismissed without prejudice. Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 5,597.00 o Amount of JUdgment Subject to Attachment/Act 5 of 1996 $ Post Judgment Credits $ o Levy is stayed for days or 0 generally stayed. Post Judgment Cosls $ ----....---- --------- Certified Judgment Total $ o Objection to levy has ceen filed and hearing will be held: .~: Dale: Place: - Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMEm.sy FILING A NOTICE ,',1" ""r OF APPE:AL WITH THE PROTHONOTARYICLE:RK OF THE COURT OF COMMON PL,~S, CIV1Ll DI,VJ$10!'l. YOU . . .... ',' . MUST INCLUOE A COPY OF THIS NOTICEoOF JUDGMENTf'tl'lANSCRIPT FORM ~i"Ef! YOUR NciTIC<EaF'APPEAL. ,~_' .......- i ... . .;: ", ~ : ;'0,. _ 0:' -:. - -" . . . = ::', '. ,.District JUStice - - . : .' ::: 1 certify that this is a true and correc\ copylo! the record.ot.tbe..proceedings.cii"n'lainin'g the judgment! . .' . r --- . -. 1/ ' ". . . ,Date '~ i i _)' " , O(;triCl Justice I .~-' ,Date i , l i 'i My commission expires first Monday of January, : . I . ., ! " 12004 1 t . '.,/ , SEAL AOPC 310-99 -- ~,_0JIIIlIII ',T ~ " , ~ ~ I ; I 'I il i1 I ,. i ~! i ~ -.~ -- ~~",..."......-"". - .-- J; (') (:,::; c c,;.:; \> (~ <:-- :::;:. ~ 0' € s~H':: - ~ :"'';-) 2:r , !) CD ,c '~-'-' 'I} -0 "l jO " ,..-,- --0 -. 01 -~ ~ -U J~> ~ ~ R (:o; ~~ t.- ~ ~ :w ..)= ;? (A-) -,,, " CI) f -If ~ ~ f= ~ .Tlq~~'IJ<!Il~!!if#!~IIJljijI~ffl'1;>''''''IO>;:'''''',]~,jr'''''''~J'''-.Ji;j'-~'''''''?1P;$;""-f',!O'~IW,'l!t~i!'"ffl"1"j!,,1l'~!P}o:~:!i'ilff,;fflf.\Iiit'~~ p., ,~ .-";- ,-- 1. Article Addressed to: District Justice Thomas A. Placey 104 S. Sporting Hill Ro Mechanicsburg, PA 1705~ D. Is delivery address different from item 1? If YES, enter delivery address below: o Agent o Addressee DYes ON<> 3. Se/Vlce Type 00 Certified Mail 0 Express Mail o Registered 0 Return Receipt for Merchandise o Insured Mail 0 C,O.D, 4. Restricted Delivery? (Extra Fee) 0 Yes ; ! '; \ I ~ ~ \ .) i j ,'.\\ 'i" PS Form I ' mastic Return Recelpt 102595..99.M-1 ~69 ..~iillillli;hfj' "ill\d~.i\ill6cdrTi~lile' '. item 4 if RestriCted Delivery is desired~'- .. Print your name and address ol"'.:the. reverse so that we can'return the ccu:cl to you. . Attach this card to the back of the mailpiece, or on the front if space permits. 1. A\1icle Addressed to: ,waste Management of Cent 4300 Industrial Park Roa camp Hill, PA 17011 x D. Is delivery address different from item 11 If YES, enter delivery address below: 1 PA 3. Service Type rsJ Certified Mail o Registered o Insured Mail o Express Mail o Return Receipt for Merchandise DC,O,D, 4. Restricted Delivery? (Extra Fee) DYes 2. Article Number (Copy from service label) ~ t,(ZIJ 3B(P 94/ I. P~ \9'fT1i3&11', J~ly 1'~9' ,; pam..!ic Retum Receipt -, '" ,r- 102595..g9-M.178~ ,......,. COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Cumb5\fJrE\iPoI~Vttt y NOTICE OF APPEAL ,~ FROM DISTRICT ,JUSTICE JUDGMENT ',-^""c- 5'-11'1c.,I/;\ 3, C2eJOO COMMON PLEAS NO,o?aco . A\,\rc^':,t- NOTICE OF APPEAL 'if Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. f'!AM e; OF APPEL.l.ANT MAG. DIST. NO. OR NAME:: OF ".J:' HAMPDEN CENTER, INC. 09 - 3 - 04 p.ODRE;;SS OF APPE;;L.L.AN" CITY STATE;; 2:1P CODE:: clo 219 Pine street, Harrisburg, PA 17101 [lATE;; OF JUDGMEl:NT IN TlilO: CAse; OF (Pla/nldt! lDetend.nt) 7/20/00 Waste Management of Center, Inc. CL.A1M NO. TORNE::Y OR AGI;;NT CV -ffi 0000207-00 LT 19 This block will be signed ONLY when this notation is required-~Vn'der Pa. R,C,P,J,P, No, 1008B, This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. If appellant was Claimant (see Pa. R.CP,J.P, No, 1001 (6) in action before. District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NO TICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENtER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONL Y when appellant. was 'DEFENDANT (see Pa, R.CP.J.P, No, 1001(7) in action before District Justice. IF NOT USED. detach from copy of notice df appeal to be served upon appellee). 'PRAECIPE: To Prothonotary Waste Management of PA, Inc. . Name, of appe(/~e(s} , ,.;l. .. 5411 I (Common Pleas No. ,(:;)(:X:> - (,'0' 1 withintwenty (201 days after servic Enter rule upon ,appelleels), to file a complaint in tllis appeal , ' ./ judgment of non pros. \ \. :9l'a;<veq,',l,aPRf!!~'l.Iif1"f!ttDmeYO' agent . 1'4\1'09;11 'i RULE'. To Waste Management of PA, Inc. ( ) , appellee s Name of appellfie(s) '-,- (1) You are notified that a r~l!le is hereby entered upon you to'file a complaint in this app~ar within twenty (20) days after the date of service of this rule upon,-,VoLi by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WI LL BE ENTERED AGAINST YOU, (3) The date of service of this rule if service was by mail is the date of mailing. Date: Autif,lA 3 , rn 2900 Q , '-' -', '~i '. ';.-;,:,' ,(~ /!!;.~, ~ '.: ; SignatUre of Pr th otary or Deputy "';LJL',-' ""1; ',"-, ,: '" ih AOPC 312-90 COURT FILE ,- "Wllifr' _"it ,i,,\.,... " PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FIl.E COMPLAINT Irh'iS proBf o(Service MUST BE FiLED' WITHIN TEN (10) DAYS AFTER filing tl18 notice 01 appeal Check applicabJe, boxes} COMMONWI;AUH Q.P,~<NNSYLVANItl. COUNTY OF_')>AUlP+\,IN ____~,_,__, ''" AFFIDAVIT: I hereby syvear9r aff_irm that i served f; ~OP.Y. of t~l e f\J,~t,!c.~ .o'f l\~peRi', Com m 0 nP Ie as, N olzpon ~?l/t:J, u,p;~n._ ,th ~ ,SI i stri~.t J ~.;s:ic:; des.igna }8,d t-r:.~-r.~,in _0 ~ (date of servlce}~-=:?_________. I W'l-Q'OD " LJ, -', by personal service L~ by (~~ (~~.l r:~g:rL\?ender s receipt attached hereto, and upon t~e appellcn, {na!TIer~~,,_mJy~t,~~"'~~___~,_L-,~_ft_+_f.:i)__('_.:"n~____~_--:~__.- 01' {J l^j d <T __::L._, 1.0'f90C.L [J by personal 58(\'IC2 lKJ b':' (c0r-: died )- (~-c?,.: l@.r,;,:,) r'lClI I, sender's-~receip1. attached hen:~to. fRJ, >t'KJ clnd';fu'fther that I served the Rule to File a Cornpl.alnt accolllpan'l'ing tl~'C 'a~x:O\fe [\Joi"ice of- App!~al tJpon,lHie 'appelleEd~i) to v~,h~rn the ~R,uj~ w~s ad~ressed o~~~_ ,1jJ7QQfi, Lf by P8',scJI"\,al :.iervice i~J by (certi:ie(~}~e(ji3":2redj , l'i1all., sender.s 'r~cerpt aH~ched hereto: I ~~~ ~)O \,;; C) ~~ ~ ~~f~. G~, :z: ::0 _ ~1;~, cf, (f,;:,,<, :.<.,...;,. <;;:;:0 ?,;:: 2?;:() -' ~'2 ~ '-< SWQRN~AHiRMED) AND SUBSCH!BE~BEFORE ME THiS i"lfJ-oD'AV dLA'^3ocit_~. ~ZOOc., f;:) k __ -~-_._._---_. Sigf}il(ute of a'ffia.11t Signature of official before. whom affidavit was made ~:A ~"; Notarial seal Kimberly D. Brown, Notary Public Harrisburg, Dauphin County My commissi~~__~~P~~~.~.~~eb. 18, 2002 ~ o o ~~~\ ~"-~;~C) <",rn " '::~ ~~ Title of officii311 My commission expires on____~,__ I '19___, , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this ~ay of ~)IU-/'" 2002, in consideration of the foregoing Petition for Appointment of Arbitrators, ~Lh) b IlL ~/1f Jti..l ./ , Esquire; fdJ~J()'-t<<J , Esquire and ~ A/l~' Esquire, are appointed arbitrators in the above captioned action as prayed for. BY THE COURT: PJ -~_,_""m" ' ."_~_ -,~- /->.'" .. '" - ,,'-~ I I I I I I r_ " ~ ' " . it'"'''':;:''''''''''' II' _~"':;". "--...ii~.'L.,. ""~'1Iiw-~_~,n'''''''''' ..']IIIIl -lD'-j.....:...,..." M'"~.,j;"';";~ -," '-'~~ --~, f\LtD,,{)fF.\CE Or {;--' r::,,"~-: :"1,:" C1;'-\"~-)\' f~H~ ;\') IUtl 7 b' 1"""1 '}:" \ U(..'': \,'. " {~ ..11 C\JMt'.b\U,i'A) COUNT'{ PENNS'{LVf\!\\\i\ ". -'<J-f -_,~,";r-_,,; " .-.-, ,.,. 0,,',-',""0,,""", '--,-"'~--''"-~-- , ,. ., ,'~. fll' m~ 1",/",',1, [!,'I ~"i,,'I' ~I II, tl ~,""I" I' li:1 ':1:,1 ,I 1,:,',1 ., ';] 'I !' II' 11 I' I;, I'! ,~. tl' i I) I'; , ~, ,j II .,,1., - -~, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: AND NOW, this ~ day of June 2002, Walter A. Tilley, III, Esquire, counsel for the Plaintiff, Waste Management of Pennsylvania, Inc., d/b/a Waste Management of Central PAin the above action, respectfully represents as follows: 1. The above captioned action is at issue. 2. The claim of the Plaintiff in the action is $16,051.68, plus attorney's fees in an unliquidated amount. 3. The counterclaim of the Defendant in the action is for attorney's fees in an unliquidated amount. 4. The following attorneys are interested in the case as counsel, or are otherwise disqualified to sit as arbitrators: Walter A. Tilley, III, Esquire Stetler & Gribbin 138 East Market Street PO Box 2588 York, PA l7405-2588 Counsel for Plaintiff Mark W. Allshouse, Esquire Steven C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 Counsel for Defendant I ,v . "- --~, " . - ~ ~ = --. -'-., rftl Megan C. Huff, Esquire Stetler & Gribbin 138 East Market Street PO Box 2588 York, PA 17405-2588 . . WHEREFORE, your Petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Date: 1..1'/'1-1 /b"L- / , 07 Respectfully submitted, STETLER & GRIBBIN By: ~~p~ Walter A. Tilley, III Attorney for Plaintiff Attorney I.D. No. 37452 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-493 I 2 , i ~ , ^-,---- If . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certify that I served a true and correct copy of the within PETITION FOR APPOINTMENT OF ARBITRATORS, by first class mail, postage prepaid, on the following: ' Mark W. Allshouse, Esquire Stephen C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 STETLER & GRIBBIN Date: ~/7':'/.P~ By: ~ ~""'2 & Walter A. Tilley, III 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 _~f "t" "-"'r!' illllSl >~"C~' I I i I i I r, ~, lil' I I~! t !i ~) i I "i ~f 11 ii ii ~ " I '~!i Vi,' ,.1 ~~l. i'" iiil c', ie,,: '"n [';' i;;, !',j '...,1'" ,T !i'l: 1:'-, [:(j1 I_I:;, .....1'" I"'i.,,~,,, '1' :J" ili~li ~J'j; -r-,J i!~ 1:1;" ilk f',re,; ,_':~f:,~ ,-, .?'" ' -~<<.=-> -M'. ~ "'" ,. c,_ 'N""'-". '." ^~. ~ < e'^ ~ , 7d e <lQ. ~ III ~ ~ -- 8 JU 6" r- (tv 1 ~~p: -:3 ~ r-. <:: <'~ l~ ~~;=; );:>c z ::~ C~) N L_ r2 0::> -TI - i~J ", __,i"""'-- so. ,-~~s S~ __JC) ~_L' ::::r; ( ~ n ~~~~ ~; -c -"0 :3:i;: 'r:Y ~" - - - ,~ "?'''''P."q.,, ,.,,.,,?,,,, ;-~'--' , - ,. ':?:d,~,'" " ,;_>_/,,~;J"', ,:_ "__"">~_ , , . WASTE MANAGEMENT OF PENNSYLVANIA, INC., d/b/a WASTE MANAGEMENT OF CENTRAL PA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff v. NO. 2000-5417 HAMPDEN CENTER, INC., CIVIL ACTION - LAW Defendant NOTICE TO PLEAD TO: Walter A. Tilley, III, Esquire, counsel for Waste Management of Pennsylvania, Inc., d/b/a Waste Management of Central Pa You are hereby notified to file a written response to the enclosed ANSWER WITH NEW MATTER AND COUNTERCLAIM within twenty (20) days from service hereof or a judgment may be entered against you. LAW OFFICES STEPHEN C. NUDEL, PC Date: 1l(2f/OI St phen C. Nudel, A torney ID #4170 Mark W. Allshouse, Esquire Attorney ID #78014 219 pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendant j'F<[~"'lo~." " ~-,",",". ~,,- WASTE MANAGEMENT OF PENNSYLVANIA, INC., d/b/a WASTE MANAGEMENT OF CENTRAL PA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff v. NO. 2000-5417 HAMPDEN CENTER, INC., CIVIL ACTION - LAW Defendant DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes Defendant, Hampden Center, Inc., by and through its attorneys, Law Offices Stephen C. Nudel, PC, who respectfully files this Defendant's Answer with New Matter and Counterclaim to Plaintiff's Amended Complaint and avers as follows: 1. Admitted. 2. Denied. To the contrary, Defendant only maintains a business at that address. 3. Denied. It is denied that Defendant was required to pay reasonable charges imposed by Plaintiff. By way of further answer, paragraphs 10 and 11 of Defendant's New Matter are incorporated herein as if set forth at length. By way of further response, the Contract speaks for itself. 4. Denied. The Contract speaks for itself. 5. Denied. The letter speaks for itself. 6. Denied. After reasonable investigation, Defendant is without information or belief as to the truth or falsity of the ""l'.W"","'~ , ~~ -~ - - ~ " , "- averments contained in paragraph 6. To the extent relevant, proof thereof is demanded at trial. 7. Denied. The averment contained in paragraph 7 is a conclusion of law to which no response is required. By way of further response, the averments set forth in paragraph 14 of Defendant's New Matter are incorporated herein as if set forth at length. 8. Denied. The averment contained in paragraph 8 is a conclusion of law to which no response is required. By way of further response, the Contract speaks for itself. WHEREFORE, Defendant respectfully requests this Honorable Court to enter an Order on behalf of Defendant and against Plaintiff, thereby dismissing Plaintiff's Complaint. NEW MATTER 9. Paragraphs 1 through 8 of Defendant's Answer are hereby incorporated by reference as if set forth at length. 10. Under the terms of the Contract, Defendant was guaranteed a fixed price for services rendered by Plaintiff for three years beginning on April 23, 1998, and ending on April 23, 2001. 11. Plaintiff unilaterally increased its fees despite the provisions for a three-year price guaranty. 12. Plaintiff failed to provide the services required "'-",,'~' <.^"-<- -~ ,'~- , pursuant to the terms of the Contract and the services rendered were provided in a deficient manner. 13. Defendant provided Plaintiff with several notices regarding the deficiency in the quality of its services. 14. Plaintiff breached the terms of the Contract by failing to provide quality service and by unilaterally increasing the price despite a fixed price guaranty under the terms of the Contract. 15. Defendant did not terminate the services until after Plaintiff had breached the Contract. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiff's Complaint and award Defendant attorney's fees and costs. COUNTERCLAIM 16. Paragraphs 1 through 15 are hereby incorporated by reference as if set forth at length. 17. Under the terms of the Contract, Defendant is entitled to recover attorney's fees and Court costs for enforcing the Contract. 18. Defendant has incurred attorney's fees and will continue to incur attorney's fees and costs in defending this action. 'i~'ffiiI'IlI= ~~~ '^ ,~ - , , - ,~~ ~ WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiff's Complaint and enter Judgment on behalf of Defendant for attorney's fees and costs in defending this matter. Respectfully submitted, LAW OFFICES STEPHEN C. NUDEL, PC Date: II/z.e/Of St hen C. Nudel, Esquire A torney ID #417 3 Mark W. Allshouse, Esquire Attorney ID #78014 219 pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendant '1"~"'''_,~ . , "," ," ~ VERIFICATION I, David F. Lavipour, Vice President for Hampden Center, Inc., being authorized to do so, verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. HAMPDEN CENTER, IN . Date: /1/2.'0\01 By: Vice President i;l!\'=~,_.,..", WASTE MANAGEMENT OF PENNSYLVANIA, INC., d/b/a WASTE MANAGEMENT OF CENTRAL PA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff v. NO. 2000-5417 HAMPDEN CENTER, INC., CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Walter A. Tilley, III, Esquire Stetler & Gribbin 138 East Market Street P.O. Box 2588 York, PA 17405 LAW OFFICES STEPHEN C. NUDEL, PC Date: lI/2f1ol M k W. Allshou e, Esquire AEtorney ID #7 14 219 pine Street Harrisburg, PA 17101 (717) 236-5000 Attorney for Defendant ,?'...._."'~ ~, ""'~ ~~ - ;1 U 'I h 11 1 '! i j ,I " I , I 1 I ,I I I ';1 'I ~ d Il", .~ 'l i~ :1 q ;,; ',' l:ll! "'Ii I,i' ~:li ill "':1 "'I :':1 !,'~ 1 'j,- ,~, Q ;:sf;; ~~r:,' c:: c--:: ~~~' ~:<! C;J- () ~Tl ~~"!!- ,) :~:! ?J i~ t;~~~ C)m :,::! SSI -< '''- r" \.0 " :,.) r" ~'Ifi~'1:~~~!!fill'IiIilf;llj~'"W.rj:l!!i$~mW~-1'-~i11,~"'l~""'1"!;r,.o",.,~"",-",%"!,~)I0'_'l~'<i'ja~~~~'!jI!!:ljii!l~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRALPA NO. 2000-54l7 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT 9. Paragraphs I through 8 of the Complaint are incorporated by reference. 10. Denied. To the contrary, the price was fixed only for the services listed in the contract. If those services changed, the Plaintiff had the right to change the price to reflect the change in the work. 11. Denied. To the contrary, the Defendant substantially increased the amount of services it received from Waste Management. Waste Management adjusted its prices accordingly but at all times adhered to the unit prices set forth in the contract. 12. Denied. Waste Management provided the services required. In fact, the Defendant was sufficiently satisfied that it increased the amount of services under the contract with Waste Management. 13. Denied. To the contrary, the Defendant increased the amount of services it received from Waste Management. Notices received by Waste Management from the Defendant I ,- -~':__ "'0 <--" < '.-,-~--,>.-, ".','^"" did not indicate a deficiency in the quality of the services rendered by Waste Management but indicated the need for additional containers. 14. Denied. Paragraphs 10 through 13 of this Reply to New Matter are incorporated by reference. 15. Denied. Paragraphs 10 through I3 of this Reply to New Matter are incorporated by reference. The allegations are further denied as conclusions of law that require no further answer. WHEREFORE, Plaintiff, Waste Manage of Pennsylvania, Inc., d/b/a as Waste Management of Central P A, respectfully requests your Honorable Court to enter judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. Reply to Counterclaim 16. Paragraphs 1 through 8 of the Complaint and paragraphs 9 through 15 of this Reply to New Matter are incorporated by referenceo 17. Denied. The contract does not provide the Defendant with any right to recover attorney's fees or court costs for enforcing the contract terms. 18. Denied. After reasonable investigation, Waste Management does not have sufficient information to form a belief as to the truth of these allegations. WHEREFORE, Plaintiff, Waste Manage of PelIDsylvania, Inc., d/b/a as Waste Management of Central P A, respectfully requests your Honorable Court to dismiss the 2 '^~,.:.'''''' -~" ~ Counterclaim and enter judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. Respectfully submitted, STETLER & GRIBBIN Date: /""l-/tl/z> / I By:~~ Walter A. Tilley, III Attorney for Plaintiff Attorney J.D. No. 37452 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 3 '-'_c IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED VERIFICATION I verify that the statements made in the foregoing PLAINTIFF'S REPLY TO NEW MATfER OF DEFENDANT are true and correct to the best of my knowledge, information and belief. This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authored by counsel in his capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pac C.S. S 4904, relating to unsworn falsification to authorities. WASTE MANAGEMENT OF PENNSYL VANIA, INC., t/dlb/a WASTE MANAGEMENT OF CENTRAL PENNSYL VANIA Date: /2- 1-tJl By: iit/ ~~~ Do Id J. Is~ ,~',,_"_"f,_< "_~:__' ,-. ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certify that I served a true and correct copy of the within PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT, by first class mail, postage prepaid, on the following: Mark W. Allshouse, Esquire Stephen C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 STETLER & GRIBBIN Date: /<;~~) By:~~ Walter A. Tilley, III 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 7l7-854-9506 Fax: 717-845-493 I ',~ 1J' - '.-,. -<' ~,-~ ,-",,-,--"';. ,0- __J' ~'"' " o' ". ~. "~'.' wv ..~, C) f:') C,: S: 0 I" " ;'1 ,--. I'! n': II .~ C') - , :1 (jj ~ f-.,.;, ii ~~ C'. il >; c-~, ,:~' ~,b il :c.> c' : ~ c: ,~ .J Ii '- :J ~;.:i -_.~ ~J -< ( :;:. , I ;1 I 11 'I , '-1 ! 11 II I1 iJ; _~,_~""'F'r:::'''''''' ._:~II!l!!'il!J:~ J ,,~?l~,.- .::'~~"_,~,~Ri\!llI!!:.Ill,,, "'" ~JP.~ ",~:<ifPJll\!l~ ~ _~,,,,\,..,,o ~"';- I' '! I;, , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HA VB BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must lake action within twenty (20) days after this Complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Court yoW"' defenses or objections to the claims set forth against you. You are warned that if you fuil to do so, the case may proceed without you and a judgment may be entered against you by the Court without ftuther notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. YOU MAY LOSE MONEY OR PROPERTY OR OTIIER RIGHTS IMPORTANT TO YOu. YOU SHOULD TAKE TIDS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse 4th Floor, I Courthouse Square Carlisle, PA 17013-3378 (717) 240-6200 ~ USTED HA SIOO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expueslas en las paginas siguientes, debe tomar acci6n dentro de veinte (20) was a partir de la fecha en que recibi6 la demanda y el aviso. Usted debe presentar comparecencia escrita en persona 0 pOT abogado y presentar en la Corte por escrito sus defensas 0 sus objectiones alas demandas en su contra. Se Ie avisa que si no se detiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso 0 notificaci6n por cuaIquier dinero reclamado en la demanda 0 por cualquier otra queja 0 compensaci6n reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIEDADES U OIROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI USTED NO IlENE 0 NO CONOCE UN ABOGADO, VAYA 0 LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Court Administrator Cumberland County Courthouse 4th Floor, 1 Courthouse Square Carlisle, PA 17013-3378 (717) 240-6200 \1, I '. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff, Waste Management of Pennsylvania, Inc., is a corporation incorporated and existing in the Commonwealth of Pennsylvania, trading and doing business as Waste Management of Central P A, with its principal place of business at 4300 Industrial Park Road, Camp Hill, PA 17011. 2. Defendant, Hampden Center, Inc., is a corporation incorporated and existing in the Commonwealth of Pennsylvania, with its principal place of business at 4900 Carlisle Pike, Mechanicsburg, PA 17055. 3. On April 23, 1998, Waste Management of Central PA and the Hampden Center entered into a contract, pursuant to which Waste Management provided certain containers for waste disposal and recycling of cardboard. Waste Management would periodically empty these containers. In consideration of these services, Hampden Center was to pay the reasonable charges imposed by Waste Management. A true and correct copy of the contract, called a Service Agreement for Non Hazardous Waste, is attached as "Exhibit A". 4. Pursuant to the terms of the contract, the Agreement was to have a term of three years. In the event the Defendant terminated the contract before the end of the term, Waste 1 [, II , Management was entitled to liquidated damages in the amount of the most recent monthly charge, multiplied by five, or the remaining months in the current term, whichever is less. 5. On or about November 15, 1999, the Hampden Center, Inc., by its counsel, Stephen C. Nudel, notified Waste Management of Central P A of its intent to prematurely terminate the contract. A true and correct copy of this notice is attached as "Exhibit B". 6. The most recent monthly charge incurred by the Hampden Center prior to the premature termination of the contract was $1,100.00. 7. Waste Management is entitled to judgment in the amount of $5,500.00, plus costs of suit, including the costs incurred for filing and obtaining judgment against the Defendant before the District Justice. 8. Pursuant to the terms of the Agreement attached as "Exhibit A", Waste Management is entitled to recover its attorney's fees and other costs incurred in collecting the amounts due under the terms of the contract. WHEREFORE, Plaintiff, Waste Management of Pennsylvania, Inc., t/dlb/a Waste Management of Central P A, demands judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. Respectfully submitted, STETLER & GRIBBIN Date: Y;'/ -5/ t?t") By: ~~~__ Walter A. Tilley, III Attorney for Plaintiff Attorney J.D. No. 37452 PO Box 2588 York,PA 17405-2588 Tele: 717-854-9506; Fax: 717-845-4931 2 '0"-. I' I: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED VERIFICATION I verify that the statements made in the foregoing COMPLAINT are true and correct to the best of my knowledge, information and belief This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authored by counsel in his capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 9 4904, relating to unsworn falsification to authorities. Date: ~~ WASTE MANAGEMENT OF PENNSYLVANIA, INC., t/dIb/ MANAGE CEN By: it:, II I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certify that I served a true and correct copy of the within COMPLAINT, by first class mail, postage prepaid, on the following: Stephen C. Nudel, P.C. 219 Pine Street Harrisburg, P A 1710 I STETLER & GRIBBIN Date: ~/_<;/ 0= ~~~ Walter A. Tilley, III ~ 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 By: ~ WASTE MANAGEMENT OF CENTRAL PA 3 'i ~ \. f~\ 4300 INDUSTRlAL PARK RD . \!!!!!J CAMP HILL PA 170115717 . ~iT.. (717) 232-0878 Fax: (717) 763-9153 Sf SERVICE AGREEMENT. NON-HAZARDOUS WASTE 1;1 1196776 CO COMMERClAL-CPA BI STATUS AP ACTIVE PICKUP STREErr NUMBER DIR STREET NAME 4900 CARLISLE PIKE EFFECTlVEortTE INCQRPOF'ATED COUNTY STATE(PFlOVINCE CUM PA ZIP/POSTAL CODe 17055 01/01/93 TEMP SERJ No UNITS 212545-1910 CR""T RE,""",,E -;f/. 0 dJ, SeCURITY REaUlREO ~~ 01/01193 SERVICE EFFECTIVE DATE: "--"~-------~;-=.~"-- - 04115198 F Pl'lO!'ILE I'!'\ORLE ""'"' R se.~ICE OA.VS QTY OESCRlPTIOIlrCOMMENTS NUMBeR EXPIRES 10 E Q U " T W H F S 2 8 YD FIL CONTAINR-WM " 008 006 F 1 6YDF CARDBD CONT " 101 F 1 8 YD FIL CARDBD CONT " 101 F THIS IS A LEGALLY BINDING CONTRACT AND YOU AGREE TO ACCEPT THE SERVICES AND EQUIPMENT AT CHARGES AND FREQUENCY INDICATED ON THIS AGREEMENT SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED. CHANGES IN YOUR SERVICE LOCATION WITHIN OUR SERVICE AREA SHALL NOT AFFECT THE TERMS OF THIS AGREEMENT UNLESS WE PROVIDE 3D DAYS WRITTEN NOTICE OF TERMINATION. :iffi~1!i N'ME i!!O LAVIPOURCOMPANY ,i-m jl \~ ~, FHONE 212 545.1910 AD""'" CONTACT ADDRESS DAVIDLAVIPOR MASTERACCOUNT RELATEOACCOUNT 1196776 , 's STREET NUMBEFl DIR STREeT NA.Me: '1iI! 444 PARK AVE S ROOM 302 ._~ Cl1'( STA1E(Pi'OJlNCE 'it NEWYORK NY M>JC>R""","", lI?/POSTAL COOl: 100167321 PUI=lCH6JlE OROER NUMBER MONTElLYWASTE REMOVAL. COMMERClAL MONTHLY RECYCLE SERVICE. COMMERCIAL. " " D F CONTAINER-EXTRA PICKUP RATE INSTRLCI10NS(r'Elws: SERVICE AT VARIOUS LOCATIONS WITHIN HAMPDEN CENTER. " " ~a~ 3tr: ~~ . ~. . / ". RECEIVED ~rETLEF~ &: GRIBBIN MAY (l 8 200n , INCiDENTAL SpeCIAL WASfE TYPI',S AND AMOUNTS 138" ""'/" All ,1-:.""'"~'~'_" P. . BOX 25ggYORK, PA !7405 THE TERMS AND CONDITIONS ARE PART OF THIS AGREEMENT Printed On: 04/23/98 15:31; " "Exh i bit A" Page#: lof 2 ,'p~<C".~'''''';''''''~''''~=~~' .,r"i"IW'",""'" ~_,_ ,_,,'l!iR~?I'li! ~....,g..._" "''''' i,- 41 . :S((_ v .-..., . Service Agreem~nt .. ;" This Service Agreement, which includes any exhibits attached. to it, is made as Qf~he date shown below between HAMPDEN CENTER-ABC BLDG and WASTE MANAGEMENT OF CENTRAL PA 1. SERVICES PROVIDED We will provide you with non-hazardous solid waste collection, transportation, disposal and recycling services. We will have the exclusive right to provide such services to you. If we handle special waste for you, you will provide us with a Generator's Waste Profile Sheet C'Profile Sheet") describing s.ll special waste, and provide a representativesample of the special waste on request. You warrant that no solid waste you deliver to us is a special waste or a hazardous waste. If any of your waste contains materials which do not confonn to the de.scri.ptions in this Agreement or in a Prome Sheet C'non~conforming waste"), we can, at our option, return it to you or require you to remove and dispose of the non-conforming waste at your expense, and reimburse us for any expenses we have incurred. Special waste includes the following: all treated/de~characterized (formerly hazardous) wastes; polychlorinated biphenyl ("PCB") wastes; industrial process wastes; asbestos containing material; chemical containing equipment; demolitiondebris; incinerator ash; medical wastes; off-spec chemicals; sludges; spill-cleanup wastes; underground storage tank (!lUST") soils; and wastes from service industries. 2. INDEMNIFICATION We agree to ind.emnify, defend and save you hannlees from. and against any and all liability which you may be responsible for or payout as a result of bodily injuries (including death), property damage, or any violationor alleged violation of law, to the extent caused by any negligent actt negligent omission or willfulmiscondud of us or om employeee, which CCCUTS (1) during the colleetionor transportation cfyou:r waste, or (2) as a result of the disposal of your waste, after the -date of this Agreement, in -a facility owned by a subsidiary of Waste Management, Inc.; provided that our inderonificationobligationswill not apply to occurrences involvingnon-cODformingwaste. Y ou agree to indemnify, defend and save us hannlessfrom and against any and all liability which we may be responsible for or payout as a result ofbodily injuries (including death), property damage, or any violation or alleged violation of law to the extent caused by YOul' breach of this Agreement or by any negligent act, negligent -omission or willful misconduct of you or y,our employees, agents or contractors in the performance of this Agreement. Neither party shall be liable to the other for conaequen~ial,incidentalor puni.tivedamages arising out of the performance of this Agreement. 3. USE OF EQUIPMENT The equipment we furnish to you will remain our property . You will be responsible for any loss or damage resulting from your handling of the equipment, except for normal wear and tear. You will not overload by weight or volume, move or alter the equipment and will take reasonable precautions to prevent others from doing the same. You will use the equipment only for its intended purpose. On collection day, you will provide unobstroeted access to the equipment. If the equipment is inaccessible or overloaded by weight or volume, your service will be subject to an additional charge. We will not be responaihlefor damage to your driving surfaces resulting from the weight of our vehicles or equipment. 4. FEES You agree to pay us the fees set forth herein in accordance with the'payment terms of our invoice. We may increase your fees from time to time to reflect changes in regulations, taxes, the CPI, disposal and processing facility fees and fuel prices, plus a reasonable margin. Subject to your approval, the fees may be acljusted for other reasoIlS. Fee: adjustments requiring your approval may be agreed to verbally, in writing, or by our actions, such a5 your payment of our invoices. We will give you writtennotice oHea adjustments. We reserve the right to charge a late fee no greater than that allowed by law. If lldisposal" is listed as a separate component oithe fees, an appropriate handling charge may be added to the disposal facility'spQBted gate rate. 5. TERM The term of this Agreement will be three years from. the service effective date, and will be automatically renewed for successive three-year terms. Either of us may terminate the Agreement by giving the other written notice of tenninationby certified or overnight mail not less than sixty days before the expirationof an initial or renewal term. If you terminatethisAgreementduring the initial tenn, or we terminate due to non~payment,you will pay us as liquidated damages, and not as a penalty, the amount of your most recent monthly charge multipliedby five, or the remainingnumber of months in the current term, whichever is less. If you tsrminat~thisAgreemer;.tduring a ren~wa1 term,you will pay us as liquidated damages, and not as a penalty, the altlount of your most recent monthly charge multiplied by three, or the remaining number of months in such renewal term, whichever is les6. 6. MISCELLANEOUS This Agreement will be governedby the laws of the state in which services are performed, and is binding on the successors and assigns of both of us. The indemnificationmade by each or us will survive terminationof this. Agreement.We will be entitled. to recover our attorney5' fees and court costs in enforcing this Agreement. This Agreement supersedes any prior Service Agreements between us for locations and services covered by this Agreement.A fax signature of any party shallbe consideredto have the same binding legaleffecl as an original signature. IN WITNESS WHEREOF, this Agreement has been signed by the authorized represe~tatives of the parties on 04/23/98 HAMPDENCENTE~ABCBLDG {Customer Name} BY:~ -+ N.me: _MIA: 81J1~MI '1- Title: P M~ TtII PJI r..{ ENTRAL PA Account Number: 1196776 servcon3.090297 ;"O~"T..,""~="7."","~'r1> _ r~R4>,.",.,. ~',1~ _ ,~ ~- . / LAW OFFICES STEPHEN C. NUDEL, PC 219 Pine Street Harrisburg, Pennsylvania 17101 STEPHEN C. NUDEL TRACY L. McNAMARA (717) 236-5000 FAX (717) 236-5080 November 15, 1999 Mr. Chris Blasko Waste Management of Central PA 4300 Industrial Park Road Camp Hill, PA 17011 Re: Hampden Centre Shopping Center Dear Mr. Blasko: This firm represents Hampden Center, Inc. and Lavipour & Company, LLC with respect to the Service Agreement entered into with your company for its disposal services at Hampden Centre Shopping Center. This letter serves as formal notice that, effective November 30, 1999, the Service Agreement will be deemed terminated. My client has provided you with numerous notices of deficiencies of your service. In addition, Waste Management has unilaterally increased the fees despite the provision for a 3 year price guaranty. On November 30, 1999, you are directed to cease operations and remove your dumpsters from the premises. Note that nothing in this letter shall constitute a waiver of any right or remedy of my client against you. SCN/kb cc: Mr. David F. Lavipour verY~ t~~~ ry~ilt~~&S ~ -~'~ ,.{ /..;'" 2%~ :;:',:.-/ )i..../"i/ .' "l~.. L.~/ .r ~/ en--;:;Nudel / "Exhibit B" ~~.' -.' ,..=-",-~. ~ _.,. ~ , 1 . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRALPA NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED ORDER OF COURT Upon notice of the unavailability of Roger M. Morgenthal to serve on the above captioned arbitration panel, Steven J. Fishman is hereby appointed as substitute Arbitrator therein. !~~, - _ ~",~fiij~",~....~\I>t~',""Eo!~~~";;I:iM-".l.jM'!1kP""'~'~\i!$ll&l!iil;il:;~w,;~l\WWm,~~~H.li"'""'~''''''''''''''''1!il1li~~ ~ : '1111 2? ~ F1LED-{)FFiCE -IF ~t'~ ~lv'c~J~'I--'RY L '~',,~,.. I, ~"co' 'lA' ":_,, 1"',,,,';'__"' , I, 02 AUG -6 hi !,: n2 .~ cf, ~ ~.~ c} ~ .~~~ ~ 't ~C7'~ l]~~ CUMBEfiLANU COUNTY PENNSYCVA\IiA ;\ 'j' . .. ,> ~~._~_" "~,,,___,,"_, --~."" ,_~,__ ',"" ,,~,~:p-e;'';' ~"!J,_ 'N". ,."",,,,,_U,lJ~-, _,_,", ',~~--I" ~ W .\e~"""\ ~~~C c..ft;r &L (' ,.le m eWl<!!. 15 ) C-.e..vt~ IT- ) 2 ) ) ) ) ~~ c-,~.- ~ We do solemnly swear (or affirm) United States discharge the the Constitution of the wealth and that we will >- a;;; ;::', ;-:s~ ...... u_.! P 0'- h~ ~~--- . "'-::: (~') i- ,---'-., ~S (f-: r-.. >- f- 2: ~1~ :-~~S~ ~~~7 Uu"J 'J~CL :S o Lt.. CJ 1-" L) CO ~ ,,=..; '" In The Court of Common Pleas of Cumberland County, ?ennsylvania , '!Io _ ZtSV6 ;-- 5'-W! C 1fJ( 19 OATH that we and the dut' will supoort, obev and defend Constit~tio~ or this Common- ideli ty . AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) U 1L' &,,~ \~ ~01- ~ ~ 'Y~~+f ~1- ~ \1'\ ~ D~..A.'-Y''-'\)\.Y,",\ '6 ~ -~~ ~<i ('t7,'i:;Do. .';')~l\.~. . \ . Arbitrator, dissents. (Insert name i: applicable. ) Date of Hearing: /0;/7/02- . (0 ((7(02- Date of Award: NOTICE OF ENTRY OF Now, the t7 day or Omber award was entered upon the docket and parties'or their attorneys. Arbitrators' compensation to be paid upon appeal: $ J..so, 00 ,""~ AWARD , ~O~ , at er:.lft,., A.11., notice thereof given by mail the above to the By: ~ , ~ 'd I - - /", C;S# {OCf-'-fy-g-71 s; I <5.,3c.lf~",'w-e.5l)),1[5b...>,.q~OI9 ""y&tV\ ~IOI:I l''>6 ' n~ 1'-' -J ~ s" ~,(l ~ 4 GVlds~y /~R- ( irl. .G...JJ"" ~=l"b<...hl'\ A~uL-(~ 4 FlS.ku'ltV'I 's::t.::.J-<..\.- Cf- j.A~- II/Of/OJ.. ~ CuJ: ID~(7-UJ- 7~ ~J1k !! j :1 I ;1 :1 Ii 11'",,- i5 ~ __~UIffl!f!_~fm'i!f'"~ftl""~~l!!!-~,ml!""!iIl""'-1'!_>t!'""j;.~~~~ll;1'nftl>-i'~ff*,_mi~f!W:I!jf~~fil~JlIfIl!llI!~~~ JIiIJ'-, ",__",:_ll!' '___,,"/," ~_P'''''""""",,1i! _ ~~".-!!j""!l\J;)l1 ,~..-ll' ,,-" WASTE MANAGEMENT OF PA, dba WASTE MANAGEMENT OF CENTRAL PA v. HAMPDRN rRN~RR TNr ) ) INC. l ) ) ) 1 to. The C'!urt 0 f C;)=on~ naas 0 E Cu=he:land Coupey, ?e~_~sylvania :lo. 2000, 5417 Ci vilX!:tJL- O'A:R We do solemnly s~ear (or a:firn) cha~ ~e ~i:l support. obey and defend che eonsti:ucion of the united Scates and ehe C~nseitutio~ or this eo~on- ~ealth and :~ac ~e ~ill discharge che ducies of our ot;; Q ~i:~ fidelity. AMENDED We, the undersigned aroi:rators, r~vipg oeen duly "ppoip:ed and s~orn (or ".Ef:!.~eci), make the ::ollc~i.:lg ayard: (Note: r.E d=ges for delay are ayarded, they shall :,. separately stated.) By agreement of the parties, this Amended Award is entered in the amount of $0.00 for either party. " applicable. ) Da:e 0 f Elear:.ag: 10/17 /2002 10/17/2002 10/ /2002 Dace of A~ard: AIIIended Award: . Arbie:;a.c:ot", d:!.ss.e:ncs. (!:Jserr. :l.ame i.: I/o!!e::: OF 1/=. c'::ef:-!.t....day 0: AJ~'i.l'L., ~ 20D,2aed~, p--.~!., ehe above a~rd was eneered upon tpe docket and notice che:eof given by ~il to the ?arties or ~~ei= actornevs. A=~i~racorsr co~?ensacion co ce paid upon appeal: S 290.00 #!llr. ^.,^..," ~ -. . '",'~;',. .~,- ~" ~~.. - .".= im"''''''- "'_" ~-- ~"-" ""-" 0--,.-- Cart fYL 'dZ lecc ~o I :1 i I I " ,i , " , I' ,) if :1 il if 'j 'I ') I 'i ~.,,~,~,," ,-,^, -~ '.'..'''=~ I _ ,~ <~~D ~~~ S'iep..~ C ~ ~. OCT 2 9 loot (1 c S. vue rnn ~~.'~ r;.\._-, J~~ 0'-7 .E.::i =-< ?f ul ro :~:~.! ~-e. '::":') C) .i c': -\') S~) ',,) c:J ! _1fI!'i.~~(flj~~I!llI,~j\P~~~",",", -- __~_,........1!Il!1I'!5Im ~~~II~_ ,1"'i,",^.,41lW1l!lil'~ ."",",--1,. COMMON\>\ .TH OF PENNSYLVANIA NOTICE OF APPEAL COU~T O~ COMMON PLEAS FROM Cumb~Al<blffA\ffity DISTRICT JUSTICE JUDGMENT NOTICE OF APPEAL COMMON PLEAS NO..,2ax> - 5'Yl"f (..,11,'\ AlAgwJ :3 , ClOOO Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. NAMIl OF APPll!:LLANT HAMPDEN CENTER, INC. MAG. DIST. NO. OR NAMll!: 0.. D.J. DATil 0" JUDGMENT cIa 219 Pine street, Harrisburg, PA 17101 CITY 09 - 3 - 04 AOORES, 01"" A"PIlLI.ANT STATll!: :UP CODIII IN THIl CASE 0.. (P/.mriffl 7/20/00 Waste Mana ement of PA IDe/end.nO CV 1~ 0000207-00 LT 19 This block will be signed ONLY when this notation is required under R.C.P.J.P. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. Center Inc. CLAIM NO. TORNEY 0" AGENT Signature of Prothonotary or Deputy If appel/ant was Claimant (see Pa. R. C.P.J.P. No. 1001(6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONL Y when appel/ant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enter rule upon Waste Management of PA, Inc. ,appellee(s), to lile a complaint in this appeal Name of appellee(s) (Common Pleas No. ;lC)(x:) - '54/ f (;",\ ) within twenty (20) days after service y I jUdgment 01 non pros. g!JatuJ"e Q./ appallant or his attorney or agent . NUael., t;Squ~re RULE: To Waste Management of PA, Inc. ,appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) II you do not lile a complaint within this time, a JUDGMENT OF NON PROS WI LL BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of mailing. f~ 2~ ~".Ji Date: 4r...l, 3 ,19 2000 rekj'A #If ~"'o~otaivorDeputv (;j1:", C:' ,:', 8t: "'-', " 5-;;' " 't i-t, ',; c....:: AOPC 312-90 COURT FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE OF 'NOTlCE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DA YS AFTER filing the notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; S5 AFFIDAVIT: I hereby swear or affirm that I served , upon the District Justice designated therein on by personal service 0 by (certified) (registered) mail, sender's , on o by (certified) (registered) mail, sender's receipt attached hereto. o a copy of the Notice of Appeal, Common Pleas No. (date of service) , 19_, 0 receipt attached hereto, and upon the appellee, (name) .19-D by personal service o and further that I served the Rule to whom the. Rule was addressed on mail, sender's receipt attached hereto. File a Camplai'nt acc6mpanying the- ~bove 'Notice of Appeal upon the appellee(s) to ,19_, 0 by personal serxice 0 by (certified) (registered) , SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS QAYOF' ",19_. Signature of affiant Signature of official before whom affidavit was made Title of official My commission expires on ,19_. i I \ c~; ~ " (~::) ~, ::::><!; (~:=;." ;);'? '~J:::J /r i'.;~ _JL- :~cz ";,JuJ Del- ~ :3 o ("") -"" "'~ , ~, ~,-) COMMONWEALTH OF PENNSYLVANIA COUNTY OF: COMBBRLAND MIll. 0111. No.; OJNam.: Hon. 09-3-04 NOTICE OF JUOGMENTITRANSCRIPT PLAINTIFF. CIVIl:. CASE . NAME'IIldADDRISS 'WAsTE .HANAGBImNT 01' PA, :INC. ..., 4300 nmUST'RIAL PAU: RD. CAMP RILL, PA 17011 TROMl$ A. PLAeEy _.s: 104 S. SPORT:ING !lrLL RD. J!:ECRANJ:eSBtlRG, PA L '...."0...: (717) 761-8230 17050 vs. DeFENDAN~ N~eva..~s ~DEN CENTER, :INC. 4900 CARLISLE PIKE J!:ECRANIeSBtlRG, PA 17055 L .J ..., TBOHAs A. PLACET 104 s. SPORTJ:NG RILL RD. m:CRANJ:CSBtlRG, PA 17050 Docket No.: cv- 0000207 -00 Date Filed: 6/14/00 .J . ., THIS IS TO NOTIFY YOU THAT: Judgment: ~ Judgment was entered for: (Name) C!1 Judgment was entered against: (Name) DRll'J.TIT.T JTTn~ PT.'!''''' wa~~~ va~a~~ n. 'D. . n.J,.. in the amount of $ R1L 'M1)nJn.1' ~laPrl1n) TUl'" o Defendants are jointly and severally liable. o Damages will be asseSSed on: o This case dismissed without prejUdice. r; r;1l7 no on: (Date of Judgment) 7/?n Inn (Date & Time) O Amount of JUdgment SUbject to AttaChment/Act 5 of 1996 $ o Levy is stayed for days or 0 generally stayed. Amount of Judgment $ 5.500.00 JUdgment Costs $ 97.00 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 5.597.00 Post Judgment Credits $ Post Judgment Costs $ ==----==== Certified Judgment Total $ o Objection to levy has been filed and hearing will be held: Date: Place: . Time: . Date My commission expires first Monday of January, AOPC 31S-99 i / I / '/ SEAL ~ -..t) -..0 ~ \ \ I \ ~ \~ ~ pen. '" 0 (;( ~ ~ :;::, ;? ...... CIJ ~ f ~ ~ r> ~ -0 - ~ ~ ..J; ~ - o ("~ C 0 <,,'"' ,'6: mrT' z-' :ZC ~~';. r:::c ;:, :!:-'.?C) ~(c >(:~ z ::;! ~ c:: ~-") I (..;.:; ~-C\ :J:: ;".) " (.oJ cumb~~,ct,C,q,Wtt:y '" " .cOURT OF COMMON PLEAS <-.' jI'-, '\ ",'4>:0.;...; 1,'1':; ';f ~ DISiRICi . . . NOilCE OF APpro Notice IS given that the appeltant ha f'{ d . c;:AL S ( e In the ab On the date and in the case mentioned b I OVe COurt of Common Plea e ow, s an apPeal from ::', IV"'IW.. Q....'''.~..LI.,,''''l" HAMPDEN CE:N'l'E:rt, :t'oo""s. o,....~"'.."I,..l\rl" !t/o 219 Pine '1".. o"'.luoGl",.."".,. h%O 111I 1'40. INC. St~:~.t, Harri.Sburg, 1'11. <A.. o. '"'""''''' 17101 Waste Managelllent Of 1'11., Inc CV~~_oo LT19~ ___ ~s blOCk WI/I be Signed O~, "".'. No. '",,". "'". '"" '0,",,"" " """"~'_, ' Notice of ,1\ Pa. ' PPeal, When received b h IPEF/SEDE,I\Sto theJ'Ud Y t e District JUStice Wilt oPerate as 9rnent for Possession in th' , IS case. e,,.y Cb 'RAECIPE TO ENT< · "' """ ~,.""" ON" R RUle TO FIle CO"'" ' O. <>"", ...,..,",""" """ _'0" .~ O'F€N04Nr, ,tAINT ANO RUle ... ~... . . ~"r_~,.___%,,! " fl.C.". N. """'! ",.'-fl- .. To~o_,"~ ..'" n Signarure of PrOthonotary Or Deputy IF appellant '1< No. 10(116) in MUST FILE 4 dayS aFter filing his ""e uPon Waste ManagE!1llent " ' 0... 1'11., Inc. L.,' No.07~~ 54" . I Na"'eOfappef/eels! 'ft.", Within tWent (20) . Y dayS after serllic aste Mana!1eJ&ent Of 1'11., Nal11e of appel/eels) Inc. \ ,,'"~ '". · "', ;, """" ""N't · ""'" '''' · ~ "'"" "" N m, . "" , . .... . , ~"""" '''''. 0, , . . m, 0" '" '"'"'''''' '" '" . , 00,,, ,,~ . '~',""". , '" """' " . . m~ · ,,', · "'"""'" 00,"," '";, """. '"000 "'NT "' ' NON '''''-'' , " , 1"- " '";"",, "-... . NT"", 404<N,, " Ii. , Was Y mal/ IS the date of malll ~,;;~OO . > ng. ~ I '. ' (., I :" I ~ ! ,,~ , , i I t . appeltee!s) '~ Signatvre of COUR, FILE: "C\r'M.J\'OO '10 -, ,'L-'V- ..! """1 ~~, ~,~f\ r,'_" ' d>.'l>. . ,) .;,,~ ~... ~ .,.~' 'IOf\~' /~ /.,/ ,JIl{ -,. 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'.'..". \,,' ,:,,''. c:C, I,y .Icelt\~ \~'- '.' coo" oltn,. Not,ce':/"'.' " . .. ^~1.ae(j .",b~ pe~.'oral ,el"ce 0;J ~ ~ t'",.. -------- . , ." .,~'. .'.'.' ,e'~' ,7~"" ,y.."..... .,,, :,'""~""~. (dilie of serv,ce)~ppellee ("alne)~~~ fYJ~. . d ~,...,.,.l\ ",a\l ,endei'{leCeiPt atta . ' ",., ,", "",. ,. ,., , ,0 --- . ","''''"~'" ' _ U ~ .."",,,,,,,,, ' ' ~/T- ,,~ ' ' " ,'......... ..,,_oe''''. "," "'" , ...,.." d' ,\\e \w\e te I'ile a ComPlaint aec?.!:'.w.::,~O' v b" person,a\ ,e"..ce @. b~ ~ ..l\T'P.I'....,,_......,tnat \ ,e,"e ~-, ---- ^,,~,' . .',. 'W .-,-., ",/ ' - ,. "'0" '" ~"".. "",'"'.""~. ,.,' ., " . . ' ,.,.'t'~ce\il' ai\at\1ed \leleto. .'(\'i"Uo\01_~~(JI>" "', ',c:. '. ' .' /" "'," .~\.... .,..... S\J8SQ~W:~bI'Ol't NIt S"'O~I>I"~ ~a~.".."'~O^. '. .::c. ,.' .",zpou ,,.. p >>-.;"", ......:v",w."""'.P' . ' ' ""~ \14\~~\J,1oI.';\Jl" ' . ' . . r' ~ ' """om affidavit was made ,(,,\." ~ \~. m;l:;' 8,;<" (:) 4 ,~ a o o ~ ~. ..- u' 'P ~ c',' "-I' ,\J~ " ~>., , ,0 ,:,\\,>'0 ,)~\l';(Ji1: Tit'eof offiC",' ______ 19-' "^"co,,,"'iSSiope"Pi'e'on~I'''''''''' ",; <,r..j.' ".,.,~.; 1 ur.)'-< ,\.1'."'..1. l'; ....~. ["\' IIOta''''' seal ?b~C \I."",,"~~ O. 1110",0, IIOta'~ ot I\atlisllUlf,. oa~'$'\Of c':,' 1.~ 'J.QQ'J. \ \ tIo~ co",,,,iS~:~; C'P::.'~_ ~. . ,u 'j' ,~,,;,")' .~ 1,"111. "'1,"1111. IIIIII//. "'II"//: ~" "'1,1,11. "1,1.1. '., " '1,,/1. . "'/ . f?\6~ 001. .'00<0 ., oSte <,z9 '/)he~ It lJ. CO <'i<-<-. ::t.~(!! '.<\I'll ::t.,sIJi.[ oSt<-. Cie.z <-~ eet ' 41 ' lJ~ ,s~~ ,z :> <-e ,zO,z '~ --..: ) 'O~~ '0-,1\~'i;.\J ..~ i\\~ ~e S"'~~ 'il~~"p~-C ~"'.. ?,?>a.i:i: :\ :\\", , :\" \. \\' :\", :\\" :\~, \\", :\\,' \\", ,\\ \\\\\,\ ~\\\ :\\\,\\ \\\' ~'" ..) oSt 00 ~ lit ''10 .l'11 ql1q ./f;f (j/.J ~~ .1.1, oSt.l;-.1.~~l1t .P.<J q.l .p. o~ J.;> q.l;-k C"~ oJ.J. Jro'J'Jt q f _.._.""'..~,~.~-. ,-- .- """;"-':"""'~',;,'".-~""- . Complete ~ems 1, 2, and 3. Also complete item 4 ff Restricted Delivery Is desired. . Print your name and address on the reverse so that we can return the card to you. . Attach this card to the back of the mailplece, or on the front if space permits. 1. Article Addressed to: Waste Management of Cent 4300 Industrial Park Roa Camp Hill, PA 17011 x D. Is delivery add.... different from item 1? If YES, enter delivery address below: 1 PA 3. Service Type rsI Certified Mail CJ Express Mail 6" Registered D Return Receipt for Merchandise o insured Mall 0 C.O.D. 4. Raatrictad Dellvary? (ExUa Fae) 0 Vas 2. Article Number (Copy from service label) 2. L/'ZLJ 3BCo 9LII PS Form 3811" July 1999 Domastie Raturn Raceipt "--- , 102595-99-M-1789 ___.._._~.J · Complete ~ems 1, 2, and 3. Also complete ~em 4 ff Restricted Delivery Is desired. · Print your name and address on the reverse so thet we can return the card to you. · Attech this card to the back of the mailplece. or on the front If space pennits. 1. Artiel, Addroased to: D~strict JUstice Thomas A. Placey 104 S. Sporting Hill Ro Mechanicsburg, PA 1705~ o Agent o Addrasaee D. Iadelivery_dltlarantfromitem1? 0 Vas W YES, antar delivery admeas below: 0 No 3. Sarvlce Type ilIl Cartlflad Mall 0 Exproaa Mall o Raglatarad 0 Raturn Racelpt for Men:handlae o Insured Mall 0 C.O.D. 4. RastrIctad Delivery? (ExUa Faa) 0 Yas 2. ArticIe~ber4!fro/!lS."'Ice~ PS Form &8111, JJly ~~ f~01! f11~~'R~~ i~~ ' i: i' i:: : i : 102595-""'-1189 . ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVil.. Plaintiff v. CML ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Cow1 your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and 8 judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. YOU MAY LOSE MONEY OR PROPERTY OR OTIIER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO Nor HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFlCE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse 4"' Floor, I Courthouse Square Carlisle. PA 17013-3378 (717) 240-6200 ~ USTED HA SIOO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las pagina. siguiente., debe tomor occi6n dentro de veinte (20) illo. 0 partir de 10 fecha en que recibi6 10 demanda y el ovi.o. Usted debe presentar comparecencia escrita en persona 0 por obogado y presentar en la Corte por escrito sus defensas 0 sus objectiones alas demandas en Sll contra. Se Ie avisa que si no se defiende, el C8S0 puede proceder sin usted y 18 Corte puede decidir en Sll contra sin mas aviso 0 notificaci6n por cualquier dinero reclamado en 18 demanda 0 por cualquier otm queja 0 compensaci6n reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIEDADES U OlROS DERECHOS lMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI USfED NO TIENE 0 NO CONOCE UN ABOGADO, VAYA 0 LLAME A LA OFlCINA EN LA DIRECCION ESCRlTA ABAJO PARA A VERlGUAR DONDE PUEDE OB'l'ENER ASISTENCIA LEGAL. Court Administrator Cumberland County Courthouse 4"' Floor, I Courthouse Square Carlisle, PA 17013-3378 (717) 240-6200 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER. INC. Defendant JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff, Waste Management of Pennsylvania, Inc., is a corporation incorporated and existing in the Commonwealth of Pennsylvania, trading and doing business as Waste Management of Central P A, with its principal place of business at 4300 Industrial Park Road, Camp Hill, PA 17011. 2. Defendant, Hampden Center, Inc., is a corporation incorporated and existing in the Commonwealth of Pennsylvania, with its principal place of business at 4900 Carlisle Pike, Mechanicsburg, P A 17055. 3. On April 23, 1998, Waste Management of Central PA and the Hampden Center entered into a contract, pursuant to which Waste Management provided certain containers for waste disposal and recycling of cardboard. Waste Management would periodically empty these containers. In consideration of these services, Hampden Center was to pay the reasonable charges imposed by Waste Management. A true and correct copy of the contract, called a Service Agreement for Non Hazardous Waste, is attached as "Exhibit A". 4. Pursuant to the terms of the contract, the Agreement was to have a term of three years. In the event the Defendant terminated the contract before the end of the term, Waste 1 Management was entitled to liquidated damages in the amount of the most recent monthly charge, multiplied by five, or the remaining months in the current term, whichever is less. 5. On or about November 15, 1999, the Hampden Center, Inc., by its counsel, Stephen C. Nudel, notified Waste Management of Central PA of its intent to prematurely terminate the contract. A true and correct copy of this notice is attached as "Exhibit B". 6. The most recent monthly charge incurred by the Hampden Center prior to the premature termination of the contract was $1,100.00. 7. Waste Management is entitled to judgment in the amount of $5,500.00, plus costs of suit, including the costs incurred for filing and obtaining judgment against the Defendant before the District Justice. 8. Pursuant to the terms of the Agreement attached as "Exhibit A", Waste Management is entitled to recover its attorney's fees and other costs incurred in collecting the amounts due under the terms of the contract. WHEREFORE, Plaintiff, Waste Management of Pennsylvania, Inc., t/d/b/a Waste Management of Central P A, demands judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. Respectfully submitted, STETLER & GRIBBIN Date: ~/ ~/ t?l") By: ~~.?&-_ Walter A. Tilley, III Attorney for Plaintiff Attorney J.D. No. 37452 PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506; Fax: 717-845-4931 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED VERIFICATION I verify that the statements made in the foregoing COMPLAINT are true and correct to the best of my knowledge, information and belief This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authored by counsel in his capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 9 4904, relating to unsworn falsification to authorities. Date: dr~ WASTE MANAGEMENT OF PENNSYLVANIA, INC., tldlb/ MANAG CEN By: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire. counsel for Plaintiff, hereby certify that I served a true and correct copy of the within COMPLAINT, by first class mail, postage prepaid, on the following: Stephen C. Nudel, P.C. 219 Pine Street Harrisburg, PA 17101 STETLER & GRIBBIN Date: <;;:''''--:~oo By: ~~>-<:_ Walter A. Tilley, III 13 8 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 Exhibit A ~ WASTE MANAGEMENT OF CENTRAL PA f ~\ 4300 INDUSTRIAL Pj\RK RD \!!!:), CAMP HILL PA 170115717 ~J"iT, (717) 232-0878 , Fax: (717) 763.9153 3'1~ '. ...... HAMPDENCENTER~BCBLDG STREET NLUlER DlFI STREET Nl.Me ; 4900 CARLISLE PIKE ,~~~ ~CHANICSBURG INCClFlPOPATEO COUNTY STATePAOV1NCE CUM PA : !~, LOCATION ''''''''" wI ~!~ !!!~ """" = OESCFllPTIQ"fCOt.WENTS 2 8 YO FfL CONTAINR-WM x 1 1 x CARDBD CONT CARDBD CONT x Si! SERVICE AGREEMENT' NON-HAZARDOUS WASTE 1196776 CO COMMERCIAL.CPA A AP ACTIVE PICKUP EFFECTIVEDo\TE Z1ptFOSTAL CODE 17055 01/01/93 TEMP seFW No utm SECURITY REQUlREO THIS IS A LEGALLY BINDING CONTRACT AND YOU AGREE TO ACCEPT THE SERVICES AND EQUIPMENT AT CHARGES AND FREQUENCY INDICATED ON THIS AGREEMENT SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED. CHANGES IN YOUR SERVICE LOCATION WITHIN OUR SERVICE AREA SHALL NOT AFFECT THE TERMS OF THIS AGREEMENT UNLESS WE PROVIDE 30 DAYS WRITTEN NOTICE OF TERMINATION. ...... LA VIPOUR COMPANY AOORESS STReET NlM3ER DlR STFlECf" tw.1E 444 PARK AVE S ROOM 302 CI1Y STATel'FOllNCE ZIP/POSTAL OOOE 100167321 NEW YORK NY MONTHLY WASTE REMOVAL. COMMERCIAL MONTHLY RECYCLE SERVICE. COMMERCIAL. x PRATE x A INSTRUCTIONEl(l"El'lMS: ~~~~;;~ p~ INCIDENTAL SPECIAL WASTE TYPES ANO AMOUNTS THE TERMS AND CONDrTlONS ARE PART OF THIS AGREEMENT Prlnted On: 04/23/98 15:35 "Exhibi t A" '""'" 212 545.1910 "'" DAVID LAVIPOR tN.STERACCOLM' FlElATEDAOCOUNT' 1196776 .....,., ACCOl.M Pl.JFlCHUlE OROER MJMBER x x , RECEIVED STETLEr: & GRIBBIN MAY [i 8 20011 r R .", .', >, ., BOX 25gg YORK .PA r7405 Page #: 1 of 2 .. -- ':S((. v Service Agreement I, ;" This Service Agreement, which includes any exhibits attached to it, is made as of the date shown below between HAMPDEN CENTER.ABC BLDG and WASTE MANAGEMENT OF CENTRAL PA 1. SERVICES PROVIDED We will provide you with non-hazardo\.1S eolid waste collection, transportation, disposal and recycling services. We will have the exclusive right to provide I!lUCh services to you. If we handle special waste for you, you will provide us with a Generators Waste Profile Sheet (~Profile Sheet") de5Cribing all special waSte, and provide a repreeentativesample of the epeeial waste on request. You warrant that no !SOlid waste you deliver to us is a special waste or a hazardous waste. If any of yom- waste contains materials which do not conform to the descriptions in this Agreement or in a Profile Sheet ("non-conforming waste"), we can, at our option, return it to you or require you to remove and dispose of the non-confonning waste at your expenee, and reimburse us for any expenses we have incurred. Special waste includes the following: all treated/de-characterized (fonnerly hazardous) wastes; polychlorinated biphenyl ("PCB") wastes; industrial procese wastes; asbestos containing material; chemical containing equipment; demolitiondebris; incinerator ash; medical wastes; off-spec chemicals; sludges; spill-cleanup wastes; underground storage tank ("UST") soils; and wastes from service industries. 2. lNDEMNIFICATION We agree to indeIllIlifY, defend and save you harmless from and against any and all liability which you may be responeiblefor or payout as a result of bodily injuries (including death), property damage, or any violationor alleged violation of law, to the extent caWJed by any negligent act, negligent omiesionor willfulmiecondU(!t ofue or our employees, which OCO\.1rfi (1) during the collection or transportation of your waste, or (2) as a result of the disposal of your waste, after the date of this Agreement, in a facility owned by a subsidiaty of Waete Management, Inc.; provided that our indemnificationobligationswi.ll not apply to occurrences involvingnon-comormingwaste. You agree to indemnifY, defend and save us hannless from and against any and all liability which we may be reeponsible for or payout ae a result ofbodily injuries (including death), property damage, or any violation or alleged violation of law to the extent caused by your breach of this Agreement or by any negligent act, negligent omission or willful mi8COnduct of you or your employees, agents or contractors in the performance of this Agreement. Neither party shall be liable to the other for consequen~al, incidental or punitive damages arising out of the perlormanceofthisAgreement. 3. USE OF EQUIPMENT The equipment we furnish to you will remain our property. Yau will be responm.'ble for any 1088 or damage resulting from your handling of the equipment, except for normal wear and tear. You will not overload by weight or volume, move or alter the equipment and will take reasonable precautions to prevent others from doing the !lame. You will use the equipment only for ite intended purpose. On collection day, you will provide unobstructed acce8l!l to the equipment. If the equipment is inacceesible or overloaded by weight or volume, your eervice will be subj ect to an additional charge. We will not be responsible for damage to your driving surfaces resulting from the weight of our vehicles or equipment. 4. FEES You agree to pay us the fees set forth herein in accordance with the payment tenne of our invoice. We may increase your fees from time to time to reflect changes in regulations, taxes, the CPI, disposal and proceesing facility fees and fuel prices, plus a reasonable margin. Subject to your approval, the feee may be adjusted for other reasons. Fee adjustments requiring your approval may be agreed to verbally, in writing, or by our actions, such as your payment of our invoices. We will give you written notice offee adjustments. We reeerve the right to charge a late fee no greater than that allowed by law. If "disposal" i15 listed as a separate component of the fees, an appropriate handling charge may be added to the disposal facility'sposted gate rate. 5. TERM The term of this Agreement will be three years from the service effective date, and will be automatically renewed for l!I.1CCessive three-year tarme. Either of us may tennmate the Agreement by giving the other written notice of tenninationby certified or overnight mail not less than sixty daye before the expirationof' an initial or renewal tenn..1f you terminate this Agreement during the initial term, or we terminate due to non-payment,you will pay us as liquidated damages, and not 8I!l a penalty, the amount of'your moet recent monthly charge multipliedby five, or the remainingnumber of months in the current term, whichever islese. IfYfJU termiIlauthisAgree...~elltduring a ren""wal term,you will pay WI aeliquidateddamage6, and not 86 a penalty, the amount of your most recent monthly charge multiplied by three, or the remaining number of months in such renewal tenn, whichever is less. 6. MISCELLANEOUS This Agreement will be governed by the laws of the state in which services are performed, and is binding on the lSUccessors and aesigns ofboth of us. The indemnificationmade by each of us will survive terminationof this Agreement. We will be entitled to recover our attorneys' fees and court costs in emorcing this Agreement. Thie Agreement supersedes any prior Service Agreements between us for locations and servicee covered by this Agreement.A fax signature of any party shall be considered to have the eame binding legal effect as an original signature. IN WITNESS WHEREOF, this Agreement has been signed by the authorized ;-epresentatives of the parties on 04123198 HAMPDEN CENTER.ABC BLDG (Customer Name) BY:~ .,.j... Name: ~NA- 8U1~MJ 'i- Title: J ~~ 1V1 "^ r,.{ Account Number: 1196776 servcon3.090297 Exhibit B .- / LAW OFFICES STEPHEN C. NUDEL, PC 219 Pine Street Harrisburg, Pennsylvania 17101 STEPHEN C. NUDEL TRACY L. McNAMARA (717) 236-5000 FAX (717) 236.~080 November 15, 1999 Mr. Chris Blasko Waste Management of Central PA 4300 Industrial Park Road Camp Hill, PA 17011 Re: Hampden Centre Shopping Center Dear Mr. Blasko: This firm represents Hampden Center, Inc. and Lavipour & Company, LLC with respect to the Service Agreement entered into with your company for its disposal services at Hampden Centre Shopping Center. This letter serves as formal notice that, effective November 30, 1999, the Service Agreement will be deemed terminated. My client has provided you with numerous notices of deficiencies of your service. In addition, Waste Management has unilaterally increased the fees despite the provision for a 3 year price guaranty. On November 30, 1999, you are directed to cease operations and remove your dumpsters from the premises. Note that nothing in this letter shall constitute a waiver of any right or remedy of my client against you. ve",ry t rJlJ,..~~'" ze/rs ',' #L1" / , ,;:.-re:' " ~> ~. '0/ ..r/ ' f 7./- / . / gt . en . Nudel SCN/kb cc: Mr. David F. Lavipour , "Exhibit B" ~:. .' '>- c~ L'- ( '; r-- ?: (~ ~~ l~_ ')::.:J ;:,2 ( , \'.1 L ) (-' ....... I CIl :>E-i ..; ...:/2; fiI ><fi1 ...:/ CIl:O: "'''; 2;fi1 H '" 2;~ H 2; fiI..; H 0 - "'2; Z :0:>< ..; . - '" :O:E-i...:/ 1<.:0: CJ "" ... ~~ 02;H 0 2; "" ~ g - CI) CJD:> fiI H - :'i.-j OH E-iE-i E-i ~ ... ~ ~ Z.-j I<.CJCJ 2;CIl - 2; l? < ... ~'.-f w 0 fiI..; Il<: H ~ ~ ~ ~ ~8 0.... :O:~..; . ~ ..; n. z E-i2;~ fiI '" :> ...:/ ~ ~ ~ 0 z . Il<:..;.... ~ III 2; '" O'l o ~ Ie"; D"':/I/) ..;........:/ fiI 6 o-l t: w ~~ Oil<: I 2;.0..; CJ I-< 0( ~ :.!fiIo ..;.....Il<: CJ O'l ~2 alo :O:'OE-i 2; I-< <1:0:0 2; fiI CI') .-j IlDN fiI -fi1 0 III ~CJ E-i 'CJ '" ~ . CIlCJ :0: :: ~ 0 ";2;1<. ;g '02; ~HO - ..; H ", ~. WASTE MANAGEMENT OF PENNSYLVANIA, INC., d/b/a WASTE MANAGEMENT OF CENTRAL PA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff v. NO. 2000-5417 HAMPDEN CENTER, INC., Defendant CIVIL ACTION - LAW NOTICE TO PLEAD TO: Walter A. Tilley, III, Esquire, counsel for Waste Management of Pennsylvania, Inc., d/b/a Waste Management of Central Pa You are hereby notified to file a written response to the enclosed ANSWER WITH NEW MATTER AND COUNTERCLAIM within twenty (20) days from service hereof or a judgment may be entered against you. LAW OFFICES STEPHEN C. NUDEL, PC Date :S!~ll ZCf.:X) St phen C. Nudel, Esquire At orney ID #417 3 Ma k W. Allshouse, Esquire Attorney ID #78014 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendant '.. '. WASTE MANAGEMENT OF PENNSYLVANIA, INC., d/b/a WASTE MANAGEMENT OF CENTRAL PA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff v. NO. 2000-5417 HAMPDEN CENTER, INC., Defendant CIVIL ACTION - LAW ANSWER WITH NEW MATTER AND COUNTERCLAIM AND NOW, comes Defendant, Hampden Center, Inc., by and through its attorneys, Law Offices Stephen C. Nudel, PC, who respectfully files this Answer with New Matter avers as follows: 1. Admitted. 2. Denied. To the contrary, Defendant only maintains a business at the address. 3. Denied. It is denied that Defendant was required to pay reasonable charges imposed by Plaintiff. By way of further answer, paragraphs 10 and 11 of Defendant's New Matter are incorporated herein as if set forth at length. By way of further response, the Contract speaks for itself. 4. Denied. The Contract speaks for itself. 5. Denied. The letter speaks for itself. 6. Denied. After reasonable investigation, Defendant is without information or belief as to the truth or falsity of the averments contained in paragraph 6. To the extent relevant, proof thereof is demanded at trial. 7. Denied. The averment contained in paragraph 7 is a conclusion of law to which no response is required. By way of further response, the averments set forth in paragraph 14 of Defendant's New Matter are incorporated herein as if set forth at length. 8. Denied. The averment contained in paragraph 8 is a conclusion of law to which no response is required. By way of further response, the Contract speaks for itself. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiff's Complaint. NEW MATTER 9. Paragraphs 1 through 8 of Defendant's Answer are hereby incorporated by reference as if set forth at length. 10. Under the terms of the Contract, Defendant was guaranteed a fixed price for services rendered by Plaintiff for three years beginning on April 23, 1998, and ending on April 23, 2001. 11. Plaintiff unilaterally increased its fees despite the provisions for a three-year price guaranty. 12. Plaintiff failed to provide the services required pursuant to the terms of the Contract and the services rendered were provided in a deficient manner. 13. Defendant provided Plaintiff with several notices ~ regarding the deficiency in the quality of its services. 14. Plaintiff breached the terms of the Contract by failing to provide quality service and by unilaterally increasing the price despite a fixed price guaranty under the terms of the Contract. 15. Defendant did not terminate the services until after Plaintiff had breached the Contract. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiff's Complaint and award Defendant attorney's fees and costs. COUNTERCLAIM 16. Paragraphs 1 through 15 are hereby incorporated by reference as if set forth at length. 17. Under the terms of the Contract, Defendant is entitled to recover attorney's fees and Court costs for enforcing the Contract. 18. Defendant has incurred attorney's fees and will continue to incur attorney's fees and costs in defending this action. ~ WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiff's Complaint and enter JUdgment on behalf of Defendant for attorney's fees and costs in defending this matter. Respectfully submitted, LAW OFFICES STEPHEN C. NUDEL, PC Date:<5zp+ 21,QcuO ude , Esquire A torney ID #41 03 ark W. Allshouse, Esquire Attorney ID #78014 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendant VERIFICATION I, David F. Lavipour, Vice President for Hampden Center, Inc., being authorized to do so, verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date:ct\LI\O~ By: Vice Presid nt , . ',' WASTE MANAGEMENT OF PENNSYLVANIA, INC., d/b/a WASTE MANAGEMENT OF CENTRAL PA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff v. NO, 2000-5417 HAMPDEN CENTER, INC., Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Walter A. Tilley, III, Esquire Stetler & Gribbin 138 East Market Street P.O. Box 2588 York, PA 17405 LAW OFFICES STEPHEN C. NUDEL, PC Date: Sff-;;'~ 2Cx:::o Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, ; INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, 1Ne. Defendant JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT 9. Paragraphs I through 8 of the Complaint are incorporated by reference. 10. Denied. To the contrary, the price was fixed only for the services listed in the contract. If those services changed, the Plaintiff had the right to change the price to reflect the change in the work. II. Denied. To the contrary, the Defendant substantially increased the amount of services it received from Waste Management. Waste Management adjusted its prices accordingly but at all times adhered to the unit prices set forth in the contract. 12. Denied. Waste Management provided the services required. In fact, the Defendant was sufficiently satisfied that it increased the amount of services under the contract with Waste Management. 13. Denied. To the contrary, the Defendant increased the amount of services it received from Waste Management. Notices received by Waste Management from the Defendant did not indicate a deficiency in the quality of the services rendered by Waste Management but indicated the need for additional containers. 14. Denied. Paragraphs 10 through 13 of this Reply to New Matter are incorporated by reference. 15, Denied. Paragraphs 10 through 13 of this Reply to New Matter are incorporated by reference. The allegations are further denied as conclusions of law that require no further answer. WHEREFORE, Plaintiff, Waste Manage of Pennsylvania, Inc., d/b/a as Waste Management of Central P A, respectfully requests your Honorable Court to enter judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. Reply to Counterclaim 16. Paragraphs I through 8 of the Complaint and paragraphs 9 through 15 of this Reply to New Matter are incorporated by reference. 17. Denied. The contract does not provide the Defendant with any right to recover attorney's fees or court costs for enforcing the contract terms. 18. Denied. After reasonable investigation, Waste Management does not have sufficient information to form a belief as to the truth of these allegations. WHEREFORE, Plaintiff, Waste Manage of Pennsylvania, Inc., d/b/a as Waste Management of Central P A, respectfully requests your Honorable Court to dismiss the 2 Counterclaim and enter judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. Respectfully submitted, STETLER & GRIBBIN Date; /o/.:;-z;.~ By; ~~?~c::_ Walter A. Tilley, III Attorney for Plaintiff Attorney I.D. No. 37452 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele; 717-854-9506 Fax; 717-845-4931 3 --'_._---~......,.~....- l' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, ; INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, me. Defendant JURY TRIAL DEMANDED VERIFICATION I verifY that the statements made in the foregoing PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT are true and correct to the best of my knowledge, information and belief. This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authored by counsel in his capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. * 4904, relating to unsworn falsification to authorities. Date; /t?h4/'~ , . By; WASTE MANAGEMENT OF PENNSYL VANIA, INC., t/dlb/a WASTE MANAGEMENT OF CENTRAL PENNSYL VANIA ~~ District Sales Manage ---"...._.~..~_.-.- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, ; INC., d/b/a WASTE MANAGEMENT OF CENTRALPA NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certifY that I served a true by first class mail, postage prepaid, on the following; Q .:;;..:, and correct copy of the within PLAINTIFF' REPLY TO NEW MATTER OF DEFENDIB'{T," o n --I ....::J :~~': (..J "n" 0 -:..::~-, .;.~ Mark W. Allshouse, Esquire Stephen e. Nudel, PC 219 Pine Street Harrisburg, PA 17101 -0 }: t~-~ = p; .. >' (...) :;J..l STETLER & GRIBBIN Date: /'9/ ~Z; / ~ By; ~ --~<' /~ Walter A. Tilley, III 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele; 717-854-9506 Fax; 717-845-4931 ----."..-".--.---- . I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, ; INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED MOTION TO AMEND COMPLAINT AND NOW, comes the Plaintiff, Waste Management of Pennsylvania, Inc., d/b/a Waste Management of Central PA, by and through its attorney, Walter A. Tilley, III, Esquire, and moves to amend its Complaint and avers as follows: I. The rnoving party is Plaintiff, Waste Management of Pennsylvania, Inc., d/b/a Waste Management of Central PA. 2. The Respondent is Hampden Center, Inc. 3. Plaintiff filed its Complaint on September 7, 2000, averring, in paragraph 6, that the most recent monthly charge incurred by the Hampden Center prior to the premature termination of the contract was $1,100.00. 4. In paragraph 7, Plaintiff sought judgment in the amount of $5,500.00, plus costs of suit. 5. Plaintiff has learned that the most recently monthly charge incurred by the Hampden Center prior to the premature termination of the contract was in fact $1,710.00. 6. Therefore, Waste Management is entitled to judgment in the amount of$8,550.00. I --_.._--~- . II 7. The Hampden Center has incurred $7,501.68 in arrears and ffiance charges to which Waste Management is entitled. 8. Pursuant to Pa. R.C.P, 1033, a party may amend its pleadings at any time with the consent of the adverse party or by leave of Court. A copy of the proposed Amended Complaint is attached as "Exhibit A" and incorporated by reference 9. Defendant will not be prejudiced by Waste Management amending its defective averment of damages. 10, Plaintiff's letter and telephone calls to Defendant's counsel seeking concurrence for its Motion to Amend Complaint have gone unanswered. WHEREFORE, Plaintiff, Waste Management of Pennsylvania, Inc., d/b/a Waste Management of Central P A, respectfully requests that your Honorable Court permit it to amend its Complaint to include a monthly charge in the amount of $1,710.00 in paragraph 6 and liquidated damages in the amount of $8,550.00, plus adding a claim for $7,501.68 for arrears and finance charges, plus costs of suit in paragraph 7. Respectfully submitted, STETLER & GRIBBIN Date; V2~.n7 By: ~<~~ Walter A. Tilley, III Attorney for Plaintiff Attorney I.D. No, 37452 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, ; 1Ne., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED VERIFICATION I verifY that the staternents made in the foregoing MOTION TO AMEND COMPLAINT are true and correct to the best of my knowledge, information and belief. This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authored by counsel in his capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. * 4904, relating to unsworn falsification to authorities. Date: ~~ WASTE MANAGEMENT OF PENNSYL VANIA, INC., t/d!b/a WASTE MANAGEMENT OF CENTRAL PA ~ Thomas Stang Municipal Marketi g Director ----_.,.._---..,..~. . I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRALPA NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INe. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certifY that I served a true and correct copy of the within MOTION TO AMEND COMPLAINT, by first class mail, postage prepaid, on the following: Mark W. Allshouse, Esquire Stephen e. Nudel, PC 219 Pine Street Harrisburg, PA 17101 STETLER & GRIBBIN Date; 0/ Z ,./<:>/ By: ~~9~ Walter A. Tilley, III 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, ; 1Ne., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED NOTICE TO DEFENn YOU HA VB BEEN SUED IN COURT. If you wisb to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Amended Complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse 4'" Floor, 1 Courthouse Square Carlisle, PA 17013-3378 (71 7) 240-6200 AYlSQ USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las p"ginas sigoientes, debe tomar accion dentro de veinte (20) dias a partir de la fecba en que recibio la demanda y el aviso. Usted debe presenlar comparecencia escrita en persona 0 por abogado y presenlar en la Corte por escrito sus defensas 0 sus objectiones alas demandas en su contra. Se Ie avisa que si no se deliende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso 0 notilicacion por cualquier dinero reclarnado en la demanda 0 por cualquier otra queja 0 compensacion reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA US TED. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI USTED NO TIENE 0 NO CONOCE UN ABOGADO, VAYA 0 LLAME A LA OFlCINA EN LA DlRECCION ESCRITA ABAJO PARA A VERIGUAR DONnE PUEDE OBTENER ASISTENCIA LEGAL, Court Administrator Cumberland County Courthouse 4'" Floor, I Courthouse Square Carlisle. PA 17013-3378 (717) 240-6200 "Exhibit A" II . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, 1Ne. Defendant JURY TRIAL DEMANDED AMENDED COMPLAINT I. Plaintiff, Waste Management of Pennsylvania, Inc., is a corporation incorporated and existing in the COmmonwealth of Pennsylvania, trading and doing business as Waste Management of Central P A, with its principal place of business at 4300 Industrial Park Road, Camp Hill, PA 17011. 2. Defendant, Hampden Center, Inc., is a COrporation incorporated and existing in the Commonwealth of Pennsylvania, with its principal place of business at 4900 Carlisle Pike, Mechanicsburg, PA 17055. 3. On April 23, 1998, Waste Management of Central PA and the Hampden Center entered into a contract, pursuant to which Waste Management provided certain containers for waste disposal and recycling of cardboard. Waste Management would periodically empty these containers. In consideration of these services, Hampden Center was to pay the reasonable charges imposed by Waste Management. A true and correct copy of the contract, called a Service Agreement for Non Hazardous Waste, is attached as "Exhibit A". 4. Pursuant to the terms of the contract, the Agreement was to have a term of three years. In the event the Defendant terminated the contract before the end of the term, Waste I II . Management was entitled to liquidated damages in the amount of the most recent monthly charge, multiplied by five, or the remaining months in the current term, whichever is less. 5. On or about November 15, 1999, the Hampden Center, Inc., by its counsel, Stephen C. Nudel, notified Waste Management of Central PA of its intent to prematurely terminate the contract. A true and correct copy of this notice is attached as "Exhibit B". 6. The most recent monthly charge incurred by the Hampden Center prior to the premature termination of the contract was $1,710.00. 7. Waste Management is entitled to judgment in the amount of $8,550.00, plus $7,501.68 in arrears and finance charges, plus costs of suit, including the costs incurred for filing and obtaining jUdgment against the Defendant before the District Justice. 8. Pursuant to the terms of the Agreement attached as "Exhibit A", Waste Management is entitled to recover its attorney's fees and other costs incurred in collecting the amounts due under the terms of the contract. WHEREFORE, Plaintiff, Waste Management of Pennsylvania, Inc., t/d/b/a Waste Management of Central P A, demands judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. Respectfully submitted, STETLER & GRIBBIN Date; By; Walter A. Tilley, III Attorney for Plaintiff Attorney I.D. No. 37452 PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506; Fax; 717-845-4931 2 I . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED VERIFICATION I verifY that the statements made in the foregoing AMENDED COMPLAINT are true and correct to the best of my knowledge, information and belief This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authored by counsel in his capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. * 4904, relating to unsworn falsification to authorities. Date; WASTE MANAGEMENT OF PENNSYL VANIA, INC., t/d!b/a WASTE MANAGEMENT OF CENTRAL PA By; Thomas Stang Municipal Marketing Director I . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, ; INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A Plaintiff v. HAMPDEN CENTER, INC. Defendant NO. 2000-5417 CIVIL CML ACTION - LAW JURy TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certifY that I served a true and correct copy of the within AMENDED COMPLAINT, by first class mail, postage prepaid, on the following; Mark W. Allshouse, Esquire Stephen e. Nudel, P.C. 219 Pine Street Harrisburg, PA 17101 Date; STETLER & GRIBBIN By: Walter A. Tilley, III 138 East Market Street PO Box 2588 York,PA 17405-2588 Tele: 717-854-9506 Fax; 717-845-4931 ~ ::"\. WAO'!:l!;lVlA.NAUl!;MENTOFCENTRALPA 'f "\'lIL, 4300 INDUSTRIAL PARR: RD ~.~ CAMP HILL PA 170115717 ~"', (717) 232.0878 . . Fax: (717) 763.9153 3i~~ SERVICE AGREEMENT' NON-HAZARDOUS WAS. 1196776 CO COMMERCIAL'CPA , AP ACTIVE PICKUp EFFEoTiVE06.TE' I~TEO COlAVrY STA~PfD,lII\CE CUM PA ZIP/POstAL. cooe 17055 01/01/93 TEMP SEA\! No UMT, SECl.JF:iTYReOUl~ c , DEsCRIPflON'COMMfNrs U H WASTE OIY ~ A TYPE 2 8 YD FIL CONTAINR.WM " 1 6YDF CARDRD CONT " 1 8 YD FIL CARDBD CONT " 01/01/93 SERVICE EFFECTIVE DATE: -- -.~-- - ~'- - --'-- 04/15/98 PFlOFILE ......'" PRoR" EXPIRES F fIOtJTE R SER.....ce DAYS I. E Q U tot T W Ii F S F 008 006 THIS IS A LEGAU Y BINDING CONTRACT AND YOU AGREE TO ACCEPTTHE SERVICES AND EQUIPMENT AT CHARGES AND FREQUENCY INDICATED ON THIS -"""''ro______ -~.,~-.,W~'~_O~~.~,___'"'"' THE TERMS OF THIS AGREEMENT UNLESS WE PROVIDE 30 DAYS WRI1TEN NOTICE OFTERMINATION. 101 101 F .- LA VIPOUR COMPANY '"""",, """'" AllMS, CONTACT 212 545.1910 STREET Nl..U8eFl OIR STREET No.Me 444 PARKA\IE S ROOM 302 CITY STA~PRO.ll"-Ce NY ZIP/POSTAL CClOE 100167321 DAVID LA VIPOR ~EFl~ AfLATEDACCOl.A\lT 1196776 """"="" NEWYORR: Pl..IRcJ..l6:SEOFlOeRNlAlBEFl MONTHLY WASTE REMOVAL. COMMERCIAL MONTHLY RECYCLE SERVICE. COMMERCIAL. " " CONTAINER.EXTRA PICKUP RATE " ADOm L INSTFl.cTIONsrrERMs; R'~V~~~O~ * p~ " RSCE1VED S'IF:1'LEf~ &. G/(IIJRlN M'" I" or> iTt;. I' J:~ ld{,[j THE TERMS AND CONOfTlONS ARE PART OF THIS AGREEMENT Printed On, 04/23/98 15,35 "Exhibit A" t.,._)_ HG~V :i:;};'J~ )'1)(...[;. "i:'A"' '~':;..:.'(' "'. ,{, ..,~ j~: L1r: ;i-., ,;;.,.{ r.~ ..,..../,,, n~ __". ~ ':--"'"";-"''-= ,'This S.rvic. Agr.em.nt, which includ.. .ny exhibit. attacb.d tc it, is mada a. of tb. date ebown below b.twe.n HAMPDEN CENT R.A C BLDG and W STE MANAGE NT OF CENTRAL PA 1, SERVICES PROVIDED W.~.....~. ~~_.,........_..~ -_~_"-'_"''''''__ W. ~'-. .._~_'.... -.. - --" - H - ..... -- -~... '"' _ ~_.. _. """-_w.~ _. _. "e..". ~_, ......."'~~._~,.~-.._.--..._w._._y.__.~._.,,_,_.._.". " a ap.cial waste or a hazardous wast.. If any of your wast. contain. mst.rial. which dc not conform to the d'scription. in this AgreOIll.nt or in a Profile Sh.et ("non,confonning waste'), We can, at our option, return it tc you or require you to remove and diapose of the non'confOrming waste at your expenas, end reimburas u. for any expen... We have incurred. Special Waste inclUde. the following: all treat.d/de-charact.rized (formerly ~......., -, ...._"'"~ ,_. "~'. ...., "'-' - -"" ....... ......,." -- ........ -- '''-. '-""""""'"' ""-... ..,..........., ~-_."'....., ...~._,...... --.. -.~.... "'>e. soils; and wastes frOIn service indUstries. SerVice Agreement 3(( v . 4. FEES You agrae to pay u. the fe.. ast forth h.rein in accordance with the payment term. of our invoic.. We may incr....your fees from time to time to reflect change. in regul.tion., tax..., the CPI, diapo.al .nd processing faci!l\y f.e. .nd fuel price., plu. . rea.on.bl. margin. Subject to your 'pproval, the fe... may b. adjust.d for other r.asons. F.. adjuatmanta requiring your 'pprcval may b. agreed to vemally, in writing, or by cur action., such .. your paym.nt of our invoic... We will give you writt.nnclic. offee adjustments. W. re.erve the right to ch.rg. a lat. fee no gre.t.r ~.... "'._" ....H._.......... ____.~(.. _._~__... _... ...... facility'sposted gate rate. 2. INDEMNIFICATION ..-. ....-,...- - --'-"""'---........ - "'''''...,,",.-.. -... ,,~, ~".- .....-......-......"'"'""'......," .. ....-. .&.......-....,. ...-......".. --... -,,- omissionor willfuImi.conduotofu. or our.mplcye.., which occur. (1) duringth. collectioncr tranaportationofyour waste, or (2) a. a result of the diapo.al of your wast., after the date of this Agr..ment, ina facili\y OWned by a subeidiary of Wast. Manag.m.nt, Inc.; provided that our .............".......""...."-....---.y--.-,...-- -.......-.... .~ .-.. - "".illo/.... __ ._.....~,~ _. _._ ;,;...""'_.....",.,.............. violation or all.g.d violation of I.w to the extent caus.d by your br.ach of this Agr..m.nt or by any neglig.nt act, n.glig.nt omi.eion or willfuI misconduct of you or your .mploy..., .gent. or contr.ctor. in the p.rformanc. of this Agre'ment. N.ith.r par\y .hall b. Iiabl. to the other for CCnsaquen,tial,incidental or Punitive damag.. arieing out ofth. Parformanc,ofthis Agreem.nt. 3. USE OF EQUIPMENT The .quipm.nt w. furnish to you will r.main our property. You will be reaponeibl.for any 10.. or dam.ge r'suIting from your handling of the equipm.nt, except for norm.l w.ar and t.ar. You will not ov.rload by w.ight or volume, mov. or alt.r the 'quipment and will taka r.asonable pr.cautions to pr'v.nt oth.r. from doing the .am.. You will u.. the 'quipm.nt only for it. intend.d purpose. On coll.ction day, you will provide unobstruct.d acce.. to the 'quipm.nt. If the 'quipm.nt i. inaccessibl, or ov.rlo.ded by w.ight or volum., your ..rvic. will b. subj.ct to an additionalcharg.. W. will nct b. r'aponaibl.for damage to your drivingsurf.c.. r'suItingfrom the weight of our v.hicl..or .quipm.nt. 5. TERM ......."~._.'""'.._,.~_..__....,- ~.. -",~,~..._.._-,,- .~.~.~ ......"...-.~ _.............~.._~ -"-..."".--....... -..-... -""",,, -...... ~ .......,....-- ........- .-........~. '-......... ~,.- -'-~......_-""_.....,.,..._~._-----~,-,..._--- .~.fu.__,.,"_...._.___"....__._.._,_"'.,.~ __~___ .... '~~"'" -"" '~--'~"'" _.,..... ...-..~--.-..-. ..--- whichever is less. 6. MISCELLANEOUS ""-'""'._.,...~.._....~.. ...._-_.~.."'.,,-~---_..~.. ...~.........._"'."._""'._.._...._w.~.._...,._,,_."_'"..___ .. ~-~. -. .... ---... .~ ,.;"' -.. ...-...- ~... ..........~ ........ -" .... Agraement.A fax sign.tur. of any P'r\y .hall be ccnsid.r.d to have the '0IIl. binding l.gal.ffect a. an original eignature. IN WITNESS WHEREOF, this Agre.m.nt has been eigned by the .uthcriz.d repr..entativ.. of the parti.. on 04/23/98 HAMPDEN CENTER-ABC BLDG (Cuo'omh: :aliel . By:~ ~ Name: ~N It RuJ f'r'\tyNAf} i- Title -1 R..ry<V{l. TlII M &( Account Number: 1196776 servcon3.090297 ~. LAw OFFICES STEPHEN C. NUDEL, PC 219 Pine Street Harrisburg, PennsYlvania 17101 STEPHEN C. NUDEL TRACY L. McNAMARA (717) 236.5000 FAX (717J 236-S080 November 15, 1999 Mr. Chris Blasko Waste Management of Central PA 4300 Industrial Park Road Camp Hill, PA 17011 Dear Mr. Blasko: Re: Hampden Centre Shopping Center This firm represents Hampden Center, Inc. and Lavipour & Company, LLC with respect to the Service Agreement entered into with your company for its disposal services at Hampden Centre Shopping Center. This letter serves as formal notice that, effective November 30, 1999, the Service Agreement will be deemed terminated. My client has provided you with numerous notices of deficiencies of your service. In addition, Waste Management has unilaterally increased the fees despite the provision for a 3 year price guaranty. On November 30, 1999, you are directed to cease operations and remove your dumpsters from the premises. Note that nothing in this letter shall constitute a waiver of any right or remedy of my client against you. SCN/kb cc: Mr. David F. Lavipour , v.e..ry.t.r.};l-1-;o/:. ie'rs.. -.., ,:: /(,:. !fL/ . ~--;-('.._"'-):::'" ~<" .~ ". ./r " .... ../ @t ;>~~~Nudel . "Exhibit B" n ~i 'T;i- rt; ; ~: ",~;' C!_.-- r~_ <', ~I'~ ,_ : S; {~~ ~ (..:::;, " " -) . -, ".-1 I ---;-;r (..) l .~) :1:7 -< <0 TO THE PROTHONOTARY OF CUMBERLAND COUNTY: ~RAECIPE FOR LISTING CASE FOR ARGUMENT (Must be tnlewritten and Subnitted in duplicate) CAPTION OF CASE (entire caption must be stated in full) --------------------------------------------------------------------------------------. Please .list the Within matter for the next Ar9unent Court. WASTE MANAGEMENT OF PENNSYLVANIA, INC., t/d/b/a WASTE MANAGEMENT OF CENTRAL PA \'5. (Plaintiff) HAMPDEN CENTER, INC. ( Deferrlant ) No. 5417 CiVil 2000 X19(_ L '''''" ~,,~ '" be _ CLo.. P,,",<iff>, ""'fun """... <tioI. _,., demurrer to complaint. etc.): Plaintiff's Motion to Amend COmPlaint 2. Identify COUnsel who w:i.lJ. argue case: (a) for Plaintiff: Walter A. Tilley, III, Esquire ...,.., """or · Gribbin, 138 E." '.rko' ,troot, PO Box 2588, York, PA 17405-2588 (b) for defendant: Mark W. AllShouse, Esquire ~s: Stephen C. NUdel, PC, 219 Pine Street Harrisburg, PA 17101 3. 1 Will <>otify au "=ieo ;" Writ;"9 wi_ "" _ tl,,, tltis -. ""' been .listed for &:'9Unent. 4. Ar9unent Court Date: October 24, 2001 Dated: ~~~~ Attorney for Plaintiff . . IN TIm COURT OF COMMON PLEAs OF CUMBERLANn COUNTy, PENNSYL V ANlA WASTE MANAGEMENT OF PENNSYL VANIA, ; INe., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. HAMPDEN CENTER, INC. Defendant CIVIL ACTION - LAW JURy TRIAL DEMANDED I, W",,,,, A. Till"Y, m, E,q,;", """"'" ." P'''mill; !rereby =lilY """I ,~"". "", CERTIFICATE OF SERVICE md "'m,,, oopy of <Ire wi"". PRAECIPE FOR LISTING CASE FOR ARGUMENT by f"" class mail, postage prepaid, on the foIlowing; Mark W. AIlshouse, Esquire Stephen e. Nudel, PC 219 Pine Street Harrisburg, PA 17101 STETLER & GRIBBIN Date; ? /Z.V ~.1 By; ~~~~~ Walter A. TilIey,1u 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele; 717-854-9506 Fax: 717-845-4931 () C ? ~tri "';.0", Cr),,-',~ ~CJ fi{} <::: =< ---~- \0 <::> c., c, '.-J , '''r} ::..., -, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRALPA NO, 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED BRIEF IN SUPPORT OF MOTION TO AMEND COMPLAINT Procedural History On September 7, 2000, Plaintiff, Waste Management of Pennsylvania, Inc., filed a Complaint against Defendant, Hampden Center, Inc., seeking payment for unpaid services that Plaintiff provided to Defendant. On September 22, 2000, Defendant filed an Answer and New Matter denying that it owed Plaintiff money for the services provided by Plaintiff. Statement of Facts In April 1998, Plaintiff and Defendant entered into a contract pursuant to which Plaintiff provided certain containers for waste disposal and recycling of cardboard. Waste Management would periodically empty these containers, In consideration for these services, Hampden Center was to pay the reasonable charges imposed by Waste Management. A true and correct copy of the contract, called a Service Agreement for Non-Hazardous Waste, is attached as "Exhibit A". Pursuant to the terms of the contract, the Agreement was to have a term of three years. In the I event Defendant terminated the contract before the end of the term, Plaintiff was entitled to liquidated damages in the amount of the most recent monthly charge, multiplied by five, or the remaining months in the current term, whichever was less. On November 15, 1999, Defendant, by its counsel, notified Plaintiff of its intent to prematurely terminate the contract. A true and correct copy of this notice is attached as "Exhibit B". In its Complaint, Plaintiff alleged that the most recent monthly charge incurred by Defendant prior to the premature termination of the contract was $1, I 00.00. In paragraph 7 of the Complaint, Plaintiff alleged that it was entitled to judgment in the amount of $5,500.00, plus costs of suit. Plaintiff has recently learned that the most recently monthly charge incurred by Defendant prior to the premature termination of the contract was $1,710.00. Thus, Plaintiff seeks to amend its Complaint to allege an entitlement to judgment in the amount of $8,550.00. Plaintiff has also learned that Defendant has incurred $7,501.68 in arrears and finance charges. Plaintiff seeks permission to include these amounts in its Amended Complaint. 2 ~ WHETHER THE COURT SHOULD ALLOW PLAINTIFF TO AMEND ITS COMPLAINT TO REFLECT THE AMOUNT OF DAMAGES ACTUALLY SUFFERED BY PLAINTIFF? (Suggested Answer; Yes) Argument THE COURT SHOULD ALLOW PLAINTIFF TO AMEND ITS COMPLAINT TO REFLECT THE AMOUNT OF DAMAGES ACTUALLY SUFFERED BY PLAINTIFF. Pursuant to Pa. R.C.P. 1033, "A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading." Whether a party is permitted to amend its pleading is within the discretion of the trial court. Sands v. Forrest, 290 Pa. Super. 48, 52, 434 A.2d 122 (I981). Although allowance of an amendment is within the discretion of the court, the right to amend should be liberally granted unless an error of law would result, or the adverse party would be prejudiced. Id. In Sands, Plaintiff brought an action based on fraudulent misrepresentation and claimed as damages the cost of making the necessary repairs to the real estate in the amount of $40,000.00. Id. at 50. At trial, Defendant objected that the cost of making the repairs was not the proper measure of damages. Id. at 50-51. The trial court held that the proper measure of damages was the difference between the actual value of the property and the value if it had been as represented by Defendant. Id. at 51. The Superior Court held that Plaintiffs "should have been permitted to amend their complaint to allege a correct measure of damages." Id. at 52. 3 The court reasoned that "defective averments of damages are among the errors which are frequently corrected by amendments." Id. at 52. When the defendant is not prejudiced by the amendment, it is reversible error to refuse to permit plaintiff to amend the measure of damages. Id. at 53. '''When a plaintiff avers a good cause of action, but makes a mistake as to the measure of damages to which he is entitled or sets forth the wrong measure of damages, a change in the measure of damages alone.. . does not amount to the introduction of a new cause of action and is always proper. '" Id. at 52 (quoting 3 St. Pa. Prac. *37, p. 714 (footnotes and citations omitted)). As in Sands, Plaintiff, in the present case, seeks permission to correct the measure of damages. In its original Complaint, Plaintiff alleged that the most recent monthly charge prior to Defendant's premature termination of the contract was $1,100.00. In fact, Plaintiff has learned that the most recent monthly charge prior to premature termination was $1,710.00. The amount of liquidated damages for premature termination of a contract is calculated by multiplying the amount of the most recent monthly charge by five, or the remaining months in the current term, whichever is less. Therefore, Plaintiff is entitled to judgment in the amount of $8,550.00, rather than the $5,500.00 alleged in the original Complaint. Plaintiff has learned that Defendant has not paid for services and has incurred finance charges, totaling $7,501.68. Similar to Sands, Defendant will not be prejudiced by Plaintiff amending its Complaint, as it does not seek to introduce a new cause of action. WHEREFORE, Plaintiff, Waste Management of Pennsylvania, Inc., t/d/b/a Waste Management of Central P A, respectfully requests your Honorable Court to permit Plaintiff to amend its Complaint to include a monthly charge in the amount of$I,710.00 in paragraph 6 and 4 ---,",'--~_.,.._....,. liquidated damages in the amount of $8,550.00, plus adding a claim for $7,501.68 for arrears and finance charges, plus costs of suit, in paragraph 7. Respectfully submitted, STETLER & GRIBBIN Date: / .J?/ r' ./,., ./ By: ~..;... ~:2....- Walter A. Tilley, III Attorney for Plaintiff Attorney LD. No. 37452 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 5 -------~, .,------_.,---.~---~.~,~,,_._.,.-.-.,- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certif'y that I served a true and correct copy of the within BRIEF IN SUPPORT OF MOTION TO AMEND COMPLAINT, by first class mail, postage prepaid, on the following: Mark W. Allshouse, Esquire Stephen C. Nudel, PC 219 Pine Street Harrisburg, P A 17101 STETLER & GRIBBIN Date: /,?/~/e:>/ By: ~~9,.b?_ Walter A. Tilley, III 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 .__....._"._---"-,._--'~.._-~-~,_.. Exhibit A PAORLE """'" ""'" ......., EXPiRES 10 X 008 006 X 101 X 101 THIS IS A LEGAUY BINDING CONTRACT AND YOU AGREE To ACCEPT THE SERVICES AND EQUIPMENT AT CHARGES AND FREQUENCY INDICATED ON THIS AGREEMENT SUBJECT To THE TERMS AND CONDITIONS SPECIFIED. CHANGES IN YOUR SERVICE LOCATION WITHIN OUR SERVICE AREA SHALL NOT AFFECT THErERMS OF THIS AGREEMENT UNLESS WE PROVIDE ao DAYS WRITTEN NOTICE OFTERMINATlON. /::.. ~ WA"TlC IVlANAli.l!:l\1ENT OF CENTRAL PA f ~\ 4800 INDUSTRIAL PARK RD ~ CAMP HILL. .PA 1701I5717 ~iT, (717) 282-0878 .' Fax: (717) 768.9153 3'{~ '. " "'ME HAMPDENCENTER~BCBLDG STREET NUMBfR D1R STREET Nt.ME 4900 CARLISLE PIKE IN:XlFIPc:iAA:TED COl.MY STATe'l"ROIINCE CUM PA 212545.1910 M:DIT RefEFl.ENCE -:# ~ ~')' 01/01/98 OTV OESCFllPTlON'COMMEUrs 2 8 YD FIL CONTAINR-WM I 6 YD F CARDBD CONT I 8 YD FIL CARDBD CONT "'ME LAVIPOURCOMPANY 'CORES, "",""s STREET Nlt.4aER ClR STREET ~ME 444 PARK AVE S ROOM 802 CITY STAT~PFOJlOOE NEW YORK ZlPIPOSTAL COOE 100167321 NY MONTHLY WASTE REMOVAL. COMMERCIAL MONTHLY RECYCLE SERVICE _ COMMERCIAL. L CONTAINER.ID..'TRA PICKUP RATE X X X 1teTflUCT'ON8{l'ERMS: ~'~'~M'D~';; ~ p~ X INCIDENTAL SPECIAL WASTE TYPES AND AMOUNTS THE TERMS AND CONDITIONS ARE PART OF THIS AGREEMENT Printed On: 04/23/98 15:35 "Exhibi t A" SERVICE AGREEMENT' NON-HAZARDOUS WAS, 1I96776 co COMMERCIAL,CPA , AP ACTIVE PICKUP EFFECTNe ~TE ZIP/POSTAL CODE 17055 01/01/98 TEMPSEFt./ No lWS b ~ )vI.t:(.., Sect..IFIriY Reo~REO SERVICE EFfECTIVE DATE: ---~.-- - -'- - - 04/15/98 F R BERJ'CEor.VS E QUAI T W H F S F F """'" ,cr 212545.1910 DAVID LAVIPOR M6.STERACCOUNr RELATEDACCOIJNT 1196776 ""-"'""""'" PUl'IcHI.sEORDERNLlMeEFl '''... ,J<;3CEIVEu .) [r.,1 Lt\t~ &. GRUHH.i'-I, Mi," I' '. 'of',. ;~r .""'d -'~! .(thNf ;:; ,~~ ji-'. A ,(;"r' r.'; '. I' p'.. , _'. P.n fln}'- 'i .~f'r "('f.'I; ',~,: ',.,.."...., i ' '.. "', ,I '.,'.. "/". !74(i'; P::.a... iJ. 1 ,.,f' /) ---..,=-= :This Service Agreement, which includes eny exhibits etteched to it, is made as of the date shown below between HA PDEN CENTER.A C BLDG and WASTE NAGEMENT OF CENTRAL PA 1. SERVICES PROVIDED We will provide you with non-hazardous sclid Waste collection, tr""sportation, dispooal""d recycling aervieas. We will heve the exclusive right to provide ouch eervices to 'you. If We hsndle specisl waste for you, you will provide ue with s Generator'e Waste Profile Sheet ('Profile Sheet") describing all special waste, and provide a repreeentativeeample of the special waste on request. You warr""t that no aolid waole you deliver to Us is a special waste or a hazardous waste. If eny of your waste contains mat.rials which do not confonn to the descriptions in this Agre.ment or in a Profile Sheet ('non-confonning waste'), we can. at our option, return it to you or require you to remove and dispooa of the non'COnfonning waale at your expense, and reimburse Us for any expenses we have incurred. Special waste includ.s the following: all treated/de.characteriZed (formerly hazardous) wastes; polychlorinated biph.nyl ('PCB') wastes; induatriel proceoa wastes; aebestos conteining material; chemicel containing equipment; demolitiondebris; incinerator ash; medical wastes; off.sp.c chemicals; eludges; spill.cleanup westes; underground storage tenk ('UST') soils; and wastes from service industries. Service Agreement .:S((_ v 2. INDEMNIFICATION We agree to indemnify, defend and eave you hannleesfrom and against any and all liebi1i~ which you may be responsible for or pay out as a result of bodily injuries (including death), property damege, or any violationor alleged violetionof lew, to the extent caused by any negligent act, negligent omission or willfulmieconduct of us or our employees, ,.hieh o=s (1) during the collection or transportation of your waste, or (2) as a result of the disposal of your waste, after the date of this Agreement, ina facility owned by a subsidiary of Waote Management. Inc.; provid.d that our indemnificationobligationswill not apply to occurrences involvingnon-confonningwaste. You agree to indernni1Y, defend and eave us hannless from end against any and allliabili~which we mey be responsible for or payout es a result of bodily injuries (including death), property demage, or any violation or alleged violation of law to the extent caueod by your breach of thie Agreement or by any negligent act, negligent omission or willful miecanduct of you or your employees, agents or contractore in the performance of this Agreement. Neither party shall be liable to the other for consequen,tial,incidental or punitive damages arising out ofilia performance of this Agreement, 3. USE OF EQUIPMENT The .quipment we furniah to you will remain our property. You will be responsible for any loss or damage resulting from your handling of ths squipment, except for normal Wear and tear. You will not overload by weight or volume, move or alter the equipment and will take reasonable precautions to prevent others from doing the ssme. You will ue. tho equipm.nt only for its intended purpoeo. On collection day, you will provide unobstructed acea.e to the equipment. If the equipment i. inaccessible or overloaded by weight or volume, your .erviea will be subj.ct to an additional charge. We will not be responsible for damage to your driving surfaces resulting from the weight of our vehicle. or equipment. 4. FEES You agree to pay u. tho fe.s set forth herein in accordance with tha p.ym.nt t.rm. of our invoice. We may increaeo your f..s from tim. to tim. to reflect changes in regulations, tax.s. the CPI, dispoeal and processing facility f.es and fual prices, plua a reasonahle margin. Suhjoct to your approvel, the fee. may he adjusted for ather r.ason.. F.e aqjustment. requiring your approval may b. agre.d to v.rbally, in writing, or by our action., such a. your payment of our invoic... W. will give you writtennctic. off.. aqjuotments. We r.eerv. the right to charge alate f.. no great.r than that allow.d by law. If "dispo..l" i. list.d a. a separate component of the fee., an appropriate handling charge may be added to the dispo.al facility'sposted gate rate. 5. TERM The term of this Agreement will be three years from the eorviee effective date, and will be automatically renewed for SUccessive three.year terms. Either of ue may tennlnate the Agreement by giving the other written notice of tenninationby certified or overnight mail not less than six~ days before the expiration of an initial or renewal term. If you tenninatethieAgreementduring the initial tenn, or we tenninatedue to non-payment,you will pay ue ae liquidated damage., ""d not as a penal~, tho amount of your most rec.nt monthly charge multipliedby five, or the remainingnumber ofmonthsin the current term, which.veri.l.... Ify"u terminotethi.Agreem.lltduring a r.".w.lt.rm,you willpay u. ae liquidat.dclamage., .nd not ae a penalty, the amount of .your most recent monthly charge multiplied hy thrse, or the remaining number of months in such renawal t.nn, whichever is less. 6. MISCELLANEOUS Thi. Agreement will be governed hy the laws ofthe state in which eorvicesare perfonned, and i. binding on tho SUccessors and aesigns of both of u.. The indemnificationmade by each of us will survive terminationof this Agreement. We will be entitled to recover our attorneys' fees and court co.t. in enforcing this Agreement. This Agreement sup.rsede. any prior Service Agreement. between u. for location. and eorvice. covered by this Agreement.A fax .ignature of any party ehall be considered to have the eame binding legal effect as an original.ignature. IN WITNESS WHEREOF, this Agr.ement has heen .igned hy tho authorized repreeont.tive. of the partie. on 04/23/98 IC",~ By, * Nem., -.ANA: 8U1 ~f'<,fJ i- Title _p ~<VR TlI\ M &( ENTRAL PA HAMPDEN CENTER.ABC BLDG Account Number: 1196776 servcon3.090297 Exhibit B / LAW OFFICES STEPHEN C. NUDEL, PC 219 Pine Street Harrisburg, Pennsylvania 17101 STEPHEN C. NUDEL TRACY L. McNAMARA (717) 236.5000 FAX {717J 236-5080 November 15, 1999 Mr. Chris Blasko Waste Management of Central PA 4300 Industrial Park Road Camp Hill, PA 17011 Re: Hampden Centre Shopping Center Dear Mr. Blasko: This firm represents Hampden Center, Inc. and Lavipour & Company, LLC with respect to the Service Agreement entered into with your company for its disposal services at Hampden Centre Shopping Center. This letter serves as formal notice that, effective November 30, 1999, the Service Agreement will be deemed terminated. My client has provided you with numerous notices of deficiencies of your service. In addition, Waste Management has unilaterally increased the fees despite the provision for a 3 year price guaranty. On November 30, 1999, you are directed to cease operations and remove your dumpsters from the premises. Note that nothing in this letter shall constitute a waiver of any right or remedy of my client against you. SCN/kb cc, Mr. David F. Lavipour ve. r.y tr~ltX'/~.p iIZ/rs -..., ''l/(t~ /. /-::f/~<1'~- ~' r",!/ /;?;l../ ~! e.i:~Nudel "Exhibit B" #28 WASTE MANAGEMENT OF PENNSYL VANIA, INC., t/b/dla WASTE MANAGEMENT OF CENTRAL PA, INC., Plaintiff ARGUMENT COURT - OCTOBER 24. 2001 BEFORE HESS. OLER. JJ, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW HAMPDEN CENTER, INC., Defendant NO, 00-5417 CIVIL TERM Motion: Motion to Amend Complaint Briefs: Briefin Support of Motion to Amend Complaint Facts: Plaintiff filed a complaint for unpaid services based on contract between the parties for disposal of cardboard. Plaintiff included in its complaint a claim for damages of $5,500 for an unpaid monthly charge of $1, I 00. (Liquidated damages clause in contract permits party to seek damages for breach in the amount of five times monthly charge.) Since filing, Plaintiff leamed that the most recent unpaid charge was $610 higher than originally alleged and that Defendant is in arrears for $7,501.68. Plaintiff requests to amend the complaint to increase damages to $ 8,550 and to include arrears as part of damage claim. Arguments; Plaintiff argues that the Defendant will not be prejudiced by increaSing measure of damages since it does not introduce a new cause of action. Defendant does not stipulate or object. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRlAL DEMANDED BRIEF IN SUPPORT OF MOTION TO AMEND COMPLAINT Procedural History On September 7, 2000, Plaintiff, Waste Management of Pennsylvania, Inc., filed a Complaint against Defendant, Hampden Center, Inc., seeking payment for unpaid services that Plaintiff provided to Defendant. On September 22, 2000, Defendant filed an Answer and New Matter denying that it owed Plaintiff money for the services provided by Plaintiff. Statement of Facts In April 1998, Plaintiff and Defendant entered into a contract pursuant to which Plaintiff provided certain containers for waste disposal and recycling of cardboard. Waste Management would periodically empty these containers. In consideration for these services, Hampden Center was to pay the reasonable charges imposed by Waste Management. A true and correct copy of the contract, called a Service Agreement for Non-Hazardous Waste, is attached as "Exhibit A". Pursuant to the terms of the contract, the Agreement was to have a term of three years. In the I event Defendant terminated the contract before the end of the term, Plaintiff was entitled to liquidated damages in the amount of the most recent monthly charge, multiplied by five, or the remaining months in the current term, whichever was less. On November 15, 1999, Defendant, by its counsel, notified Plaintiff of its intent to prematurely terminate the contract. A true and correct copy of this notice is attached as "Exhibit B". In its Complaint, Plaintiff alleged that the most recent monthly charge incurred by Defendant prior to the premature termination of the contract was $1,100.00. In paragraph 7 of the Complaint, Plaintiff alleged that it was entitled to judgment in the amount of $5,500.00, plus costs of suit. Plaintiff has recently learned that the most recently monthly charge incurred by Defendant prior to the premature termination of the contract was $1,710.00. Thus, Plaintiff seeks to amend its Complaint to allege an entitlement to jUdgment in the amount of $8,550.00. Plaintiff has also learned that Defendant has incurred $7,501.68 in arrears and finance charges. Plaintiff seeks permission to include these amounts in its Amended Complaint. 2 lwI.l: WHETHER THE COURT SHOULD ALLOW PLAINTIFF TO AMEND ITS COMPLAINT TO REFLECT THE AMOUNT OF DAMAGES ACTUALLY SUFFERED BY PLAINTIFF? (Suggested Answer: Yes) Argument THE COURT SHOULD ALLOW PLAINTIFF TO AMEND ITS COMPLAINT TO REFLECT THE AMOUNT OF DAMAGES ACTUALLY SUFFERED BY PLAINTIFF. Pursuant to Pa. RC,P. 1033, "A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading." Whether a party is permitted to amend its pleading is within the discretion of the trial court. Sands v. Forrest, 290 Pa. Super. 48, 52, 434 A.2d 122 (1981). Although allowance of an amendment is within the discretion of the court, the right to amend should be liberally granted unless an error oflaw would result, or the adverse party would be prejudiced. ld. In Sands, Plaintiff brought an action based on fraudulent misrepresentation and claimed as damages the cost of making the necessary repairs to the real estate in the amount of $40,000.00. ld. at 50. At trial, Defendant objected that the cost of making the repairs was not the proper measure of damages. ld. at 50-51. The trial court held that the proper measure of damages was the difference between the actual value of the property and the value if it had been as represented by Defendant. ld. at 51. The Superior CoUrt held that Plaintiffs "should have been permitted to amend their complaint to allege a correct measure of damages." ld. at 52. 3 The court reasoned that "defective averments of damages are among the errors which are frequently corrected by amendments." [d. at 52. When the defendant is not prejudiced by the amendment, it is reversible error to refuse to permit plaintiff to amend the measure of damages. [d. at 53. "'When a plaintiff avers a good cause of action, but makes a mistake as to the measure of damages to which he is entitled or sets forth the wrong measure of damages, a change in the measure of damages alone.. . does not amount to the introduction of a new cause of action and is always proper.'" [d. at 52 (quoting 3 St. Pa. Prac. g37, p. 714 (footnotes and citations omitted)). As in Sands, Plaintiff, in the present case, seeks permission to correct the measure of damages. In its original Complaint, Plaintiff alleged that the most recent monthly charge prior to Defendant's premature termination of the contract was $1,100.00. In fact, Plaintiff has learned that the most recent monthly charge prior to premature termination was $1,710.00. The amount of liquidated damages for premature termination of a contract is calculated by multiplying the amount of the most recent monthly charge by five, or the remaining months in the current term, whichever is less. Therefore, Plaintiff is entitled to jUdgment in the amount of $8,550.00, rather than the $5,500.00 alleged in the original Complaint. Plaintiff has learned that Defendant has not paid for services and has incurred finance charges, totaling $7,501.68. Similar to Sands, Defendant will not be prejudiced by Plaintiff amending its Complaint, as it does not seek to introduce a new cause of action. WHEREFORE, Plaintiff, Waste Management of Pennsylvania, Inc., t/d/b/a Waste Management of Central P A, respectfully requests your Honorable Court to permit Plaintiff to amend its Complaint to include a monthly charge in the amount of$1,710.00 in paragraph 6 and 4 liquidated damages in the amount of $8,550.00, plus adding a claim for $7,501.68 for arrears and finance charges, plus costs of suit, in paragraph 7. Date: /4?/~/D/ Respectfully submitted, STETLER & GRIBBIN By; ~';';"'-~A--- Walter A. Tilley, III Attorney for Plaintiff Attorney I.D. No. 37452 5 ___.~H__ 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele; 717-854-9506 Fax: 717-845-4931 Exhibit A --- - - ..~, ....."'./j;lYU;;N'l' OF CENTRAL P A (~, 4800 rNDUSTRlAL PARR RD 'eJ. CAMP lULL PA 170115717 _~iT, (71 7) 232.0878 .. Far. (717) 763.9153 3,{~'. SERVICE AGREEMENT NON-HAZARDOUS WAS ........ HAMPDEN CENTER-ABC BLDG STREET NUMBER DUi STREET W,ME 4900 CARLISLE PIKE I' 1196776 CO COMMERcIAL,CPA "us AP ACTIVE PICKUp EFi'Em1Ve~TE 1/'COFlPCJRi;TED COLtlTY STA1lIPRoVjNCE CUM PA ZIP/POSTAl COOe 17055 01/01/93 TEMp ss:y No UMr, b ~ .A-Lt:l.. SEeuRi1Y REOUlRfD DESCAlPTJ~S PP.OFlU:: PROAl..E "'"" OIY .......'" EXPIRES 10 2 8 YD FfL CONTAINR_WM x 008 008 1 6YDF CARDBD CONT x ]01 1 8 YD FfL CARDBD CONT x 101 01/01/93 SER~ICE EFFECTIVE DATE: --~~--- - -~ - 04/]5/98 F f1 SERVICEQa,'IS E OUMTWHFS THIS IS A LEGALLY BINDING CONTRACT AND YOU AGREE TO ACCEPTTHE SERVICES AND EQUIPMENT AT CHARGES AND FREQUENCY INDICATED ON THIS AGREEMENT SUBJECT TO THE TERMS AND CONDITiONS SPECIFIED. CHANGES IN YOUR SERVICE LOCATION WITHIN OUR SERVICE AREA SHALL NOT AFFECT THE TERMS OF THIS AGREEMENT UNLESS WE PROVIDE 30 DAYS WRITrEN NOTICE OF TERMINATION. F F F '"'' LAVIPOURCOMPANY '""",,, ""'"" ADllAESS CClNTACT 212545.1910 STREET NlJM8SR DJR STREET /IIO.ME 444 PARK AVE S ROOM 302 CITY STA~PFlO.IlNOE DAVID LA VIPOR MA.STERACCoLWT AfLATEDACCOOO 1196776 NEW YOIUC NY 2lP/POSTAl cow: 100167321 MUORACCol..W PUl'lOHa.sE CROeR M.lMBeA AOOlT INSTRltTIOhWreRMS: ~'~V~~'~'~.* pj:- MONTHLY WASTE REMOVAL. COMMERCIAL MONTHLY RECYCLE SERVICE. COMMERCIAL. L CONTAINER.ID.."TRA PICKUp RATE CONTAINER.EXTRA PICKUP RATE x x x x nSCEIVEL, .)"['F:T'LH[~ &. GJ(JJiBh.!, 1~6\' r..' \. "'('1'/' .T ,I,' J.) lthJ..; THE TEAMS AND CONDITIONS ARE PART OF THIS AGREEMENT Printed On, 04/23/98 15,35 "Exhibi t A" F(J. [-$(i1/ ''; ~f'r '\''''r'/,' '.~ '. '~""<;" ,; "', .., , , . ,/ .... 'L '-IA t74(j:: i :!~,; f':A .(;"{ r..~ '. ,.' (",., P~la", -Ji. 1 of I) ---.,...... t h i TIlls ServIce Ago.e_ent, whic includee any exhibIts actacbad to it, Is mads.. of the date shown below between HAMPD N OENTER_ BO B DG and WASTE MANAGE NT OF OENTRAL PA 1. SERVIOES PROVIDED We will provide you with non-hazardous solid wsste collection, tranoportation, disposal and reCYcling services. Ws will have the ""clusive right to provide such servicee to you. If We handle special waste for you, you will provide us with a Generator'a Waste Profile Sheet ("Prome Sheet") deSCribing all special waste. and provide a representativeeample of the specIal waste on requeet. You wattant that no solid Waete you deliver to Us Is a specIal waste or a hazardous waete. If any of your Waste contains materials which dc not conform to the descriptions In this Agreement or in a Profile Sheet ("non-conforming waete"!. Ws can, at our option, return it to you or require you to remove and dispose of ths non'COnfonniug waete at your expense, and reimburse Us for any expenses We have incurred, SpecIal waste inclUdes the following: all treated/de-characterized(formerly w....., ..... ~"..,.""'.. ._, ,,~, '_,",,- _ _ "'- _ __ ~__ equipment; demolltiondebris; incInerator ash; medical waetes; off,spec chemicals; slndges; spill.cleanup waetes; underground etorage tenk ("UST"! soil.s; and wastes from service industries. Service Agreement 3(2. ~ 4. FEES You egree to pay us the fees set forth hereIn in eccorde.nce with the payment terms of our invoice. We may increase YOur fees from tizn,to time to reflect ohanges in regulations, taxes, the CPI, disposal and processing facility fees and fuel prioea, plus a reasonable margin. Subject to your approval, the fees maJ' be adjusted for other reasons. Fee a<jjue!ments requiring YOur epprovel mey be agreed to verbally. in writing. or by our sctlons. such as your payment of our invoices. We will give you writtennotioe of fee adjustments. We reserve the right to charge alate fee no greater than tbst allowed by law. If "disposal" is listed as a separete component of the fees, an appropriate handling charge may be added to the disposal facility'sposted gate rate. 2. INDEMNIFICATION We agree to indemni1y, defend and eave you harmless from and against ""y and allliabililiY which you may be responsible for or payout as a result ofbodilyinjuries (including death), property damage. or any violationor ellegedviolatlonof law, to the ""tent oeused by any negllgentact, negligent omiselon or wiIlfuJmieoonduot of Us or our employees, which oc..-urs (1) during the COllection or transportation of your waste, or (2) aa a result of the disposal of your waste, after the date of this Agreement, ina faoility owned by a subsidiary of Waete Management. Inc.; provided that our IndenrnifioationobllgationewiIlnot apply to occurrenoes involVingnon'C<lnfonniugwaste. You agree to indemnify, defend and saVe us harmless from and againet""Y and all lIabililiYwhioh We may be responaiblefor or pay out as a rasult ofbodily injuries (including death), property damage, or a'\]' violation or alleged violation of law to the extent oaused hy your breach of this Agreement or by any negligent act, nsgligent omission or willful misconduct of you or your employses, agents or centreotors in ths performance of this Agreement. Neither party shall be liable to the other for consequential,inoidentel or punitive damages arieing out of the performanoe of this Agreement. 8. USE OF EQUIPMENT The equipment we furnish to you will remain our property. You will be responsible for any loss or damege resulting from your handling of the equipment. ""oept for normal Wear and tear. You will not overload by weight or volume, mOVe or alter the equipment and will take r.aaonshle preoautions to prevent othera from doing the eame. You will uee the equipment only for its intended purpose. On oollection day, you will provide unobstructed eooeae to the equipment. If the equipment is inaoce..,ble or overloaded by weight or volume, your servioe will be subj eot to an edditlonaloharge. We will not be responsible for damage to your driving surfaoe. resultingfrom the weight of our vehicles or equipment. 5. TERM The term of this Agreement will be three yeers from the service effective date, and will be sutomaticallyrenewed for SUooeesive three.year terms. _.~_......~-.., ."'"'~...._-.--~.., --"--"-"'-""'-""" befol'e the expiration of an initial or renewal term. If you terminstethieAgreement during the initIal term, or we terminate due to non-payment,yoU will pay us aaliquidateddamagee, and not as . penalliY. the amount of your most recent monthly charge multipliedby five, or the remaining number of months in the curre.nt term, whlohe"erisle... If you tenr.inatethisAgceezne"tduring a renew.l term,you willpay us as liquidated damages. and not as e penalt", the amount of ,Your moet recent monthiy oharge multIplied by three, or the remalning number of months in suoh renewal term, whichever is less. 6. MISOELLANEOUS Thie Agreement will be governed bJ' the laws of the state in which aervioesare performed, and is binding on the SUccessors and aesigns ofhoth of Us. The indemnifioatlonmade by eaoh of us will ewvive termination of this Agreement. We will be entitled to recover our ectornays' fees and OJurt oosts In enfol'oing thie Agreement. This Agreement supersedes any prior SelVice Agreements between Us for lOcations and services covered by this Agreement.Afax signature of any party shall be considered to have the same binding legal effect aa an originalslgnature. IN WITNESS WHEREOF, this Agreement has been elgned by the authorized representatIves of the partlee on 04/28/96 ICU~ By, * Neme -.AN A, 8U1 /Y1trNAV i- TitleJRKP'UZTJ..1 /.II&{ I~MPDENCENTER~BCBLDG Account Number: 1196776 servcon3.090297 Exhibit B ~ , . LAW OFFICES STEPHEN C, NUDEL, PC 219 Pine Streer Harrisburg, Pennsylvania 17101 STEPHEN C. NUDEL TRACY L. McNAMARA (717) 236.5000 FA);: nl7J 236-5080 November 15, 1999 Mr. Chris Blasko Waste Management of Central PA 4300 Industrial Park Road Camp Hill, PA 17011 Dear Mr. BlaSko: Re: Hampden Centre ShOpping Center This firm represents Hampden Center, Inc. and Lavipour & Company, LLC with respect to the Service Agreement entered into with your company for its disposal services at Hampden Centre Shopping Center. This letter serves as formal notice that, effective November 30, 1999, the Service Agreement will be deemed terminated. My client has provided you with numerous notices of deficiencies of your service. In addition, Waste Management has unilaterally increased the fees despite the proviSion for a 3 year price guaranty. On November 30, 1999, you are directed to cease operations and remove your dumpsters from the premises. Note that nothing in this letter shall constitute a waiver of any right or remedy of my client against you. SCN/kb cc: Mr. David F. Lavipour / ve. ry...t;'~l-~j.'~ZJZ' rs. -." /,/;.~/ . ?':-;~<f--t.:;>_ , ,-, / / ..' d:~{/ "'_/ ei:~FNudel . "Exhibit B" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-5417 CIVIL WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A Plaintiff CIVIL ACTION - LAW v. HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED ORDER AND NOW, this ~~ay of () c::t:..lorJ 2001, after consideration of Plaintiff's Motion to Amend Complaint, and any answer thereto, Plaintiffs Motion is granted. Plaintiff is permitted to file an Amended Complaint, averring a monthly charge of$1,710.00 in paragraph 6. Plaintiff is further permitted to amend paragraph 7 to aver damages in the amount of $8,550.00, plus {claim for $7,501.68 for arrears and finance charges. Plaintiff shall file the Amended Complaint within twenty (20) days ofthe date of this Order. BY THE COURT: pe.'P'~GI..\~ jQJt \0 r\e~Ql\ ~ ~V-~ [>~ (llR Pl~F (1\(}I\ ~ to \J~ 10<}~ ~O \ RY? J. c~~ /().&q . 0 r ~Y.6 8 0 0 - ~1E g ....,.~, ..... !iJ?rrr ~i: . ~:Jj ..., n1::J:J ~ ,-- C/j s;,- on, ;=S.C:: .{;;- :::19 ",0 (.~ < """ .~C') ;Eo :J: ~r"":f. c5:?:j :;;;0 - ->0 >;;: - 0-'"" ~ '. t:- 35 to -.;: I I I ',' "'Hj"."~",,,,_ "',',-' , I I I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-5417 CIVIL WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A Plaintiff CIVIL ACTION - LAW v. HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE I, Megan C. Huff, Esquire, being duly sworn according to law, depose and say that I have served a true and correct copy of the Order of the Honorable J. Wesley OIer, Jr., dated October 24, 2001 to amend the Complaint in the above captioned action, by first class mail, postage prepaid, on: Mark W. Allshouse, Esquire, Stephen C. Nudel, P.C. 219 Pine Street Harrisburg, PA 17101 Sworn and subscribed to before me this ~ day of ~~ ,2001. My commission expires: Notarial Seal Donna D. Koontz, Notary Public York, York County My Commission Expires Ju!y 21. 2003 -,"".---~-~- ,'" ...,.. ...-.,.... , 0 0 0 c: -q -- 0 :!:'", rgcv n m -l r:-::: Z:r, N -'j 2'/'-" .;(:=' (/),t.' I.D -<;? .:~J~j ~C ,,. , -H ~C ::r.:: ~!/ ~~ "'-~C) Y? Pc: :::.i ~ c- '>-,. =C-) U1 -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, ; INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wisb to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Amended Complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, tbe case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOu. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse 4" Floor, I Courthouse Square Carlisle, PA 17013-3378 (717) 240-6200 AYlSQ USTED HA smo DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar acci6n dentro de veinte (20) dias a partir de la fecba en que recibi6 la demands y el aviso. Usted debe presentar comparecencia escrita en persona 0 por abogado y presentar en la Corte por escrito sus defensas 0 sus objectiones alas demandas en su contra. Se Ie avisa que si no se defiende, eJ caso puede proceder sin usted y la Corte puedc decidir en su contra sin mas aviso 0 notificaci6n por cualquier dinero reclamado en la demanda 0 por cualquier otra queja 0 compensaci6n reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI USTED NO TlENE 0 NO CONOCE UN ABOGADO, VAYA 0 LLAME A LA OFICINA EN LA DlRECCION ESCRITA ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Court Administrator Cumberland County Courthouse 4th Floor, I Courthouse Square Carlisle, PA 17013-3378 (7 I 7) 240-6200 "_~~~.mIlII IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED AMENDED COMPLAINT 1. Plaintiff, Waste Management of Pennsylvania, Inc., is a corporation incorporated and existing in the Commonwealth of Pennsylvania, trading and doing business as Waste Management of Central P A, with its principal place of business at 4300 Industrial Park Road, Camp Hill, PA 17011. 2. Defendant, Hampden Center, Inc., is a corporation incorporated and existing in the Commonwealth of Pennsylvania, with its principal place of business at 4900 Carlisle Pike, Mechanicsburg, PA 17055. 3. On April 23, 1998, Waste Management of Central PA and the Hampden Center entered into a contract, pursuant to which Waste Management provided certain containers for waste disposal and recycling of cardboard. Waste Management would periodically empty these containers. In consideration of these services, Hampden Center was to pay the reasonable charges imposed by Waste Management. A true and correct copy of the contract, called a Service Agreement for Non Hazardous Waste, is attached as "Exhibit A". 4. Pursuant to the terms of the contract, the Agreement was to have a term of three years. In the event the Defendant terminated the contract before the end of the term, Waste I ~!1l:;&~. J.,...,,,; : Management was entitled to liquidated damages in the amount of the most recent monthly charge, multiplied by five, or the remaining months in the current term, whichever is less. 5. On or about November 15, 1999, the Hampden Center, Inc., by its counsel, Stephen C. Nudel, notified Waste Management of Central PA of its intent to prematurely terminate the contract. A true and correct copy ofthis notice is attached as "Exhibit B". 6. The most recent monthly charge incurred by the Hampden Center prior to the premature termination of the contract was $1,710.00. 7. Waste Management is entitled to judgment in the amount of $8,550.00, plus $7,501.68 in arrears and finance charges, plus costs of suit, including the costs incurred for filing and obtaining judgment against the Defendant before the District Justice. 8. Pursuant to the terms of the Agreement attached as "Exhibit A", Waste Management is entitled to recover its attorney's fees and other costs incurred in collecting the amounts due under the terms of the contract. WHEREFORE, Plaintiff, Waste Management of Pennsylvania, Inc., t/d/b/a Waste Management of Central P A, demands judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. Respectfully submitted, STETLER & GRIBBIN Date: 1/ /~/h, / " / By: ~~:::2 Walter A. Tilley, I I Attorney for Plaintiff Attorney I.D. No. 37452 PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506; Fax: 717-845-4931 2 ~iili,.'" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, ; INC., d/b/a WASTE MANAGEMENT OF CENTRALPA NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, 1Ne. Defendant JURY TRIAL DEMANDED VERIFICATION I verifY that the statements made in the foregoing AMENDED COMPLAINT are true and correct to the best of my knowledge, information and belief. This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authored by counsel in his capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 9 4904, relating to unsworn falsification to authorities. //- 7-{I' By; WASTE MANAGEMENT OF PENNSYLVANIA, INC" t/dlb/a WASTE MAN~~ENT OF CENTRAL PA ~~// /~.u/ Don Isabella ,/ Date; ~ m"""'CO" " , . ";;;~''''i',: "',.~'""" UiJi!lI;r.1i' _ . ,~W:l\!li""'.'i__-~~ii",ifl{t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRALPA NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certifY that I served a true and correct copy of the within AMENDED COMPLAINT, by first class mail, postage prepaid, on the following: Mark W. Allshouse, Esquire Stephen e. Nudel, P.C. 219 Pine Street Harrisburg, PA 17101 STETLER & GRIBBIN Date: I:/Y~/ By: 4--;7......-:._~ ~.~~ Walter A. Tilley, III 138 East Market Street PO Box 2588 York,PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 ------- Exhibit A i I I i \ I I i \ \ , \ I I I ,;;. :'\. WA/jTE IVlANAli1!;MENT OF CENTRAL PA f~' 4300 INDUSTRIAL PARK RD 'eJ. CAMP HILL . FA 170115717 -"!liT, (717) 232.0878 .. Fax: (717) 763.9153 3~f!-.'. SERVICE AGREEMENT. NON-HAZARDOUS WAST, ..... HAMPDEN CENTER.ABC BLDG STREET MJldaER ClR STREET /lll,ME; 4900 CARLISLE PIKE 1196776 CO COMMERCIAL.CPA . AP ACTIVE PICKUP -"'TE '_TED CllI..MV STATFtPRoVi~ CUM PA ZIP/POSTAl COOE 17055 01101/98 TEMP SERIf No 212545.1910 ....", b ~ M:tL S~TY AEOUlAfD OIY 01101/98 SERVICE EFFECTIVE DATE: -~ --- -----~ - - '_ k 04/15/98 oesCfrPTJ~ 2 8 YD FIL CONTAINR_WM """'... .......... F PFtOFtLe FI:lUre R SER./lce o.Wi EXPlRfS ID E QUNrwHFs x 1 1 6 YD F CARDBD CONT 8 YD F CARDBD CONT x 008 006 101 101 x THIS IS A LEGALLY BINDING CONTRACT AND YOU AGREE TO ACCEPT THE SERVICES AND EQUIPMENT AT CHARGES AND FREQUENCY INDICA TED ON THIS AGREEMENT SUBJECT TO THE TERMS AND CONDITJONS SPECIFIED, CHANGES IN YOUR SERVICE LOCATION WITHIN OUR SERVICE AREA SHALL NOT AFFECT THE TERMS OF THIS AGREEMENT UNLESS WE PROVIDE 30 DAYS WRITTEN NOTICE OF TERMINATION. ..... LA VIPOVR COMPANY """"'" ""'" ........ """'. 212545.1910 STREET Nl.J.IBeR OIR STREET NI.ME 444 PARK AVE S ROOM 302 CIlY 8TA~PAo.IlNCE NEW YORK NY 2IPJPOsTAL 00Ce 100167821 DAVID LA VIPOR Mto.sTE'RACCOl.M' FlELA.TEOACCol.M' 1196776 "'-'DR",,,,,.... fIt.lf:l::I-\l,SEOIlDCR~R ADOIT lINsTRLCrION9lTEflMs; ~~VA~~~c;; * p~ MONTHLY WASTE REMOVAL. COMMERCIAL MONTHLY RECYCLE SERVICE. COMMERCIAL. L CONTAINER'EXTRA PICKUP RATE CONTAINER_EXTRA PICKUP RATE x x x " R:SCE1VEv S'/ETLEi! & GRIfJBlN INCIDENTAL SPECIAL WASTE TYPES AND AMOUNTS 11tH' fll,. ...'(1'1" I. '- >." (\,{ 1.1 THE TERMS AND CONDITIONS ARE PART OF THIS AGREEMENT Printed On, 04/28/98 15,35 "Exhibi t A" L11'i '.' ,:';"'( r..A <, l.',~ t (IX ?:;r:f: FORK '~~'A !-74(1.; P""aA iI. 1 of 'l i \ i \ i J .--.-,,""==- I. i This S.rvic. Agreement, which includ.s .ny exhibit. .tt.ch.d to it. i. made .s of the date shown b.low b.tw..n HAMPDEN CENTER.A C BLDG d W E MANAGE OF CE L P 1. SERVICES PROVIDED W. will provide you with non-h,zardous ..lid wasta coll.ction, tr.nSport.tion, diSpo..1 .nd recycling ..rvic... W. will h.v. the .xclusiv. right to provide such aervic.e to 'you. If We handl. speciel w.et. for you. you will provide u. with. Gen.retor'e Weete Profil. Sheet ('Profile Sh.et') d.scribing all sp.cial w.sta. .nd provid.. repr'..ntativ.sempl. of the Speci.1 w.sta on requ.et. You w.rr.nt th.t no ..lid w.et. you deliv.rto US i. e speci.1 w.et. or a hez.rdoua w.et.. If 'ny of your w.et. cont.i"" mat.ri.ls which do not confonn to the d...riptions in this Agreement or in a Profil. Sheet ('non.conforming waat.'). w. c.n, at our option. r.turn it to you or require you to remove end dispose of the non'COnfOrming weste .t your expen... and r.imburse ue for any expen... w. have incurred. Speci.l westa include. tha following: all treat'd/de.ch.r.ct.rized (form.rly haz.rdou.) waat..; polychlorineted biphenyl ('PCB') w.etes; industrial procaee w.et.s; .sbesto. containing m.teri.l; chemic.I cont.ining .quipment; demolitiond.bri.; incin.rator ash; medic.l w.at..; off.Sp'c ch.micale; eludg..; Spill-cleanup wastee; und.rground atorage tank ('UST') eoilaj and watStesfrom service industries. Service Agreement '~(( v . 2. INDEMNIFICATION W. agree to indell1ni1Y. def.nd and asv. you harmle.e from and againat sny and .llliebility which you m.y be responsible for or p'y out ae . result of bodily injuries (including de.th). property d.m.ge. or any viol.tionor slleged violation of Isw. to the ext.nt c'USed by 'ny n.gligent act. n.glig.nt omission or willfulmieconduot of ue or our employee.. which occurs (1) during tb. coll.ctionor transportation of your waate, or (2) a. . result of the dispo..1 of your waat.. after the date of this Agreement, in a f.cility owned by a subsidiary of Waste M.nagem.nt. Inc.; provided th.t our indenmificationobligation.will not .pply to occurrenc.. involvingnon.COnfOrmingw.st.. You agree to indall1ni1Y. def.nd .nd ..v. u. harmJeee from and againat any and all liability which w. may b. responsible for or payout .s a result ofbodily iqjuri.. (inclUding d.ath). property damag., or .ny viol.tion or alleg.d viol.tion of law to the extent c.used by your bre.ch of this Agreement or by any n.gligent act. n.glig.nt omieeion or willful mieconduct of you or your employee., .g.nt. or contractor. in the p.rfonn.nce of this Agre.ment. N.ith.r p.rty shall be liabl. to tbe oth.r for consequen.tial. incidental or punitive damages arising out of the performanceofthisAgreentent. 3. USE OF EQUIPMENT The .quipm.nt w. furni.h to you will remain our property. You will be responsibl.for any los. or dam.ge resulting from your handling of the equipm.nt. except for nonnal W.ar .nd tear. You will not ov.rload by weight or volume. move or .It.r the 'quipmant .nd will take r'...n.bl. prec.ution. to pr.v.nt others from doing the eeme. You will use the 'quipment only for its int.nd.d purpo... On collection d.y. you will provide unobetruci.d .cee.. to the 'quipm.nt. If the equipm.nt is in.ccessibl. or overloadad by Weight or volume. your ..rvice will be subj .ct to .n .ddition.1 charg.. W. will not b. responsibl.for damage to your drivingeurface. resulting from tbe w.ight of our vehicl..or equipment. 4. FEES You 'gree to p'y ue the fee. eet forth her.in in accordance with the payment tenne of our invoic.. We may incr.... your fe.. from time to tim.to reflect chang.. in regul.tion.. tax... the CPl. dispo..1 and proc.ssing f.cility f... and fual price., plu. . rea.on.bl. m.rgin. Subject to your .pproval, the fe.. m.y b. .djusted for oth.r r....IlS. F.. .<!justment. requiring your 'pprov.1 m.y b. 'greed to verbally, in writing, or by cur .ction., such .. your p.yment of our invoice.. W. will give you written notice off.. .djustm.nts. W. reserve the right to ch.rge .I.te fee no gr..t.r tban th.t .Ilow.d by I.w. If "dispo.al' i. listed .. . .'par.te compon'nt of the f.... .n .ppropriate h.ndling ch.rg. m.y be .dded to the dispo..1 facility',sposted gate rate, 5. TERM The term of thia Agre.m.nt will b. three y.ars from the ..rvice effective date, .nd will be automatic.lly renewed for successiv. three,y..r t.nne. Eith.r of u. m.y t'rminate the Agr.ement by giving the oth.r writt.n notic. of termin.tionby cartifi.d or oV.rnight mail not I... th.n .ixty day. b.fore the expir.tionof .n initial or renewal t.nn. If you termin.tethiSAgre.mentduring theiniti.1 t.nn, or w. terminatadue to non-paym.ntSou will p'y u. ..liquid.todd.m.ga., .nd not .. . penalty. the .mount of your moet r.cent monthly ch.rg. multipliadby fiv.. or the rem.iningnumb.r of mcntb.in tbe current t.rm. which.ver i.I.... If you tsrmin.te thi.Agreem."'tduring . renew.1 term,you will p.y u. ..liquid.toddem.g.s, and not .. . penalty, the .mount of your moet rec.nt monthly ch.rg. multipli.d by thrae, or the remaining numbar of month. in BUch renew.l tann, whichever is less. 6. MISCELLANEOUS Thi. Agreement will be governed by thal.w. of the etate in which ..rvice..ra perfonned, .nd i. binding on the BUCC'...r. .nd aoeigne of both of u.. The indernnificationm.de by .ach of u. will survive t'rminationof thi. Agreement. W. will be .ntitlad to recOV.r our .ttorney.' fee. and court co.t. in .nforcing thi. Agr.ement. Thi. Agreement superoad.. .ny prior SelVice Agreement. b.tween ua for loc.tione and oarvice. Covered by this Agreement.A fax eign.ture of any p.rty sh.lI be coneid.r.d to heve the .ame binding legal effect aa an originaleignature. IN WITNESS WHEREOF. this Agreement h.. b.en .ign.d by the .uthorized repre..nt.tiv.. of the p.rti.. on 04123/98 HAMPDEN CENTER.ABC BLDG (Cu"omh: :a'()el ... . . By:~~ .,.J- N.me: AN A BUI ff\t1;NNl 'f- Title J> ~<V{l. TV1 "^ I.r( ENTRAL PA Account Number: 1196776 servcon3.090297 \ 1 1 \ i ! \ I \ I I ! I Exhibit B ,- '. / LAW OFFICES STEPHEN C. NUDEL, PC 219 PiDe Street Harrisburg, Pennsylvania 17101 STEPHEN C. NUDEL TRACY L. McNAMARA (717) 236-5000 FAX (7I7J 236-5080 November 15, 1999 Mr. Chris Blasko Waste Management of Central PA 4300 Industrial Park Road Camp Hill, PA 17011 Re: Hampden Centre Shopping Center Dear Mr. Blasko: This firm represents Hampden Center, Inc. and Lavipour & Company, LLC with respect to the Service Agreement entered into with your company for its disposal services at Hampden Centre Shopping Center. This letter serves as formal notice that, effective November 30, 1999, the Service Agreement will be deemed terminated. My client has provided you with numerous notices of deficiencies of your service. In addition, Waste Management has unilaterally increased the fees despite the provision for a 3 year price guaranty. On November 30, 1999, you are directed to cease operations and remove your dumpsters from the premises. Note that nothing in this letter shall constitute a waiver of any right or remedy of my client against you. SCN/kb cc: Mr. David F. Lavipour ve" r,y tr}l):Y4PUie/ rs -',' /'2.;ii/~l /; .-7(: " ,/ ~/" / r t,'- " ~t '/~~~Nudel " , "Exhibit B" (') 0 () C -n s:: Z "Utn (-::) ~Il sprri <: , _:xi or' ,"n &i;;;: (...) TIc;:.' ""') . -<.or.:. 2-:.:1~'~ ~CJ " (',i:.P ~(') ::ii.: -ir( .> >~ ~ C~rn --i :::> ~ :< r" -< WASTE MANAGEMENT OF PENNSYLVANIA, INC., d/b/a WASTE MANAGEMENT OF CENTRAL PA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff v. NO. 2000-5417 HAMPDEN CENTER, INC., CIVIL ACTION - LAW Defendant NOTICE TO PLEAD TO: Walter A. Tilley, III, Esquire, counsel for Waste Management of Pennsylvania, Inc., d/b/a Waste Management of Central Pa You are hereby notified to file a written response to the enclosed ANSWER WITH NEW MATTER AND COUNTERCLAIM within twenty (20) days from service hereof or a judgment may be entered against you. LAW OFFICES STEPHEN C. NUDEL, PC Date: 1/(Zf:lOI St phen C. Nudel, A torney ID #4170 Mark W. Allshouse, Esquire Attorney ID #78014 219 pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendant WASTE MANAGEMENT OF PENNSYLVANIA, INC., d/b/a WASTE MANAGEMENT OF CENTRAL PA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff v. NO. 2000-5417 HAMPDEN CENTER, INC., Defendant CIVIL ACTION - LAW DEFENDANT'S ANSWER WITH NEW HATTER AND COUNTERCLAIM TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes Defendant, Hampden Center, Inc., by and through its attorneys, Law Offices Stephen C. Nudel, PC, who respectfully files this Defendant's Answer with New Matter and Counterclaim to Plaintiff's Amended Complaint and avers as follows: 1. Admitted. 2. Denied. To the contrary, Defendant only maintains a business at that address. 3. Denied. It is denied that Defendant was required to pay reasonable charges imposed by Plaintiff. By way of further answer, paragraphs 10 and 11 of Defendant's New Matter are incorporated herein as if set forth at length. By way of further response, the Contract speaks for itself. 4. Denied. The Contract speaks for itself. 5. Denied. The letter speaks for itself. 6. Denied. After reasonable investigation, Defendant is without information or belief as to the truth or falsity of the averments contained in paragraph 6. To the extent relevant, proof thereof is demanded at trial. 7. Denied. The averment contained in paragraph 7 is a conclusion of law to which no response is required. By way of further response, the averments set forth in paragraph 14 of Defendant's New Matter are incorporated herein as if set forth at length. 8. Denied. The averment contained in paragraph 8 is a conclusion of law to which no response is required. By way of further response, the Contract speaks for itself. WHEREFORE, Defendant respectfully requests this Honorable Court to enter an Order on behalf of Defendant and against Plaintiff, thereby dismissing Plaintiff's Complaint. NEW MATTER 9. Paragraphs 1 through 8 of Defendant's Answer are hereby incorporated by reference as if set forth at length. 10. Under the terms of the Contract, Defendant was guaranteed a fixed price for services rendered by Plaintiff for three years beginning on April 23, 1998, and ending on April 23, 2001. 11. Plaintiff unilaterally increased its fees despite the provisions for a three-year price guaranty. 12. Plaintiff failed to provide the services required pursuant to the terms of the Contract and the services rendered were provided in a deficient manner. 13. Defendant provided Plaintiff with several notices regarding the deficiency in the quality of its services. 14. Plaintiff breached the terms of the Contract by failing to provide quality service and by unilaterally increasing the price despite a fixed price guaranty under the terms of the Contract. 15. Defendant did not terminate the services until after Plaintiff had breached the Contract. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiff's Complaint and award Defendant attorney's fees and costs. COUNTERCLAIM 16. Paragraphs 1 through 15 are hereby incorporated by reference as if set forth at length. 17. Under the terms of the Contract, Defendant is entitled to recover attorney's fees and Court costs for enforcing the Contract. 18. Defendant has incurred attorney's fees and will continue to incur attorney's fees and costs in defending this action. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiff's Complaint and enter Judgment on behalf of Defendant for attorney's fees and costs in defending this matter. Respectfully submitted, LAW OFFICES STEPHEN C. NUDEL, PC Date: I/!z.e/O( St hen C. Nudel, Esquire A orney ID #417 3 Mark W. Allshouse, Esquire Attorney ID #78014 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendant VERIFICATION I, David F. Lavipour, Vice President for Hampden Center, Inc., being authorized to do so, verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. HAMPDEN CENTER, IN . Date: /'IZ.e.\Ol By: Vice President WASTE MANAGEMENT OF PENNSYLVANIA, INC., d/b/a WASTE MANAGEMENT OF CENTRAL PA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff v. NO. 2000-5417 HAMPDEN CENTER, INC., CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Walter A. Tilley, III, Esquire Stetler & Gribbin 138 East Market Street P.O. Box 2588 York, PA 17405 LAW OFFICES STEPHEN C. NUDEL, PC Date: II/2fjOI M k W. Allshou e, Esquire A torney ID #7 14 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorney for Defendant (') <::> ('.) C -q '. ~~!': ._~ '1J tt~ '.:,) " rn ..-;:;:: ~- ( ''V - ,'1 <- , t,:'1 en ~. <0 j , -< Q r:: c ,,:1 ~; -n ~,'~) -;-; 0:;.. C; ('5 <- C - j;; , ~-j rn c; ~;:;J ::'1 ,:..) ::0 -< r", -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff CIVIL ACTION - LAW v. HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT 9. Paragraphs 1 through 8 of the Complaint are incorporated by reference. 10. Denied. To the contrary, the price was fixed only for the services listed in the contract. If those services changed, the Plaintiff had the right to change the price to reflect the change in the work. 11. Denied. To the contrary, the Defendant substantially increased the amount of services it received from Waste Management. Waste Management adjusted its prices accordingly but at all times adhered to the unit prices set forth in the contract. 12. Denied. Waste Management provided the services required. In fact, the Defendant was sufficiently satisfied that it increased the amount of services under the contract with Waste Management. 13. Denied. To the contrary, the Defendant increased the amount of services it received from Waste Management. Notices received by Waste Management from the Defendant I did not indicate a deficiency in the quality of the services rendered by Waste Management but indicated the need for additional containers. 14. Denied. Paragraphs 10 through 13 of this Reply to New Matter are incorporated by reference. 15. Denied. Paragraphs 10 through 13 of this Reply to New Matter are incorporated by reference. The allegations are further denied as conclusions of law that require no further answer. WHEREFORE, Plaintiff, Waste Manage of Pennsylvania, Inc., d/b/a as Waste Management of Central P A, respectfully requests your Honorable Court to enter judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. R~ly to Counterclaim 16. Paragraphs I through 8 of the Complaint and paragraphs 9 through 15 of this Reply to New Matter are incorporated by reference. 17. Denied. The contract does not provide the Defendant with any right to recover attorney's fees or court costs for enforcing the contract terms. 18. Denied. After reasonable investigation, Waste Management does not have sufficient information to form a belief as to the !rUth of these allegations. WHEREFORE, Plaintiff, Waste Manage of Pennsylvania, Inc., d/b/a as Waste Management of Central P A, respectfully requests your Honorable Court to dismiss the 2 Counterclaim and enter judgment against Hampden Center, Inc. in an unliquidated amount, which amount is not expected to exceed the applicable limits of arbitration. Respectfully submitted, STETLER & GRIBBIN Date: I"t.-/II/z> / I BY:~~ Walter A. Tilley, III Attorney for Plaintiff Attorney I.D. No. 37452 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-5417 CIVIL WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRALPA Plaintiff CIVIL ACTION - LAW v. HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED VERIFICATION I verifY that the statements made in the foregoing PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT are true and correct to the best of my knowledge, information and belief. This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authored by counsel in his capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pa. e.S. ~ 4904, relating to unsworn falsification to authorities. WASTE MANAGEMENT OF PENNSYLVANIA, INC., tJdlb/a WASTE MANAGEMENT OF CENTRAL PENNSYLVANIA Date: /2- 1-(}j By: D.i!!:~ ~Ld IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-5417 CIVIL WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRALPA Plaintiff CIVIL ACTION - LAW v. HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certifY that I served a true and correct copy of the within PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT, by first class mail, postage prepaid, on the following: Mark W. Allshouse, Esquire Stephen C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 STETLER & GRIBBIN Date: /<;/--~/P) BY:~~ Walter A. Tilley, III 13 8 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 C) ~,' ~~~,:_r ~.:':'-, ~~S;. r' ~::: iK~~, 2: =< C-~) 'J ;-'1 '-J r',_; r,,) :::> c:,:) -<, :;:::; -< II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. HAMPDEN CENTER, INC. Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this ~ay of ~J./IIJ--'" 2002, in consideration of the foregoing Petition for Appointment of Arbitrators, ~b) Jib ":~ /f:;.../ ./ , Esquire; //FML J-';'i",t.,J . "'q.ire"", ~_ A'~"A. Esquire, are appointed arbitrators in the above captioned action as prayed for. BY THE COURT: PI --~-~~~."' <".T'. S t' ~, ,', ,\ , ' ft...,... ....... '" .', '" , '. ... ' ) .' YlhVI1:l},sNN3d ,. ", ,'n('('\ '11\l\:"11..J:Jr~t/l.1n" '\J..., i..." .. ..' ,.:...;",i'll, V is :2 hd 9l Hnc zo ,i.\:IV1Ci ,:c ,",,' ::JO :r)Lj_:K}- (]:ni::i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYL VANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: AND NOW, this~ day of June 2002, Walter A. Tilley, III, Esquire, counsel for the Plaintiff, Waste Management of Pennsylvania, Inc., d/b/a Waste Management of Central PA in the above action, respectfully represents as follows: I. The above captioned action is at issue. 2. The claim of the Plaintiff in the action is $16,051.68, plus attorney's fees in an unliquidated amount. 3. The counterclaim of the Defendant in the action is for attorney's fees in an unliquidated amount. 4. The following attorneys are interested in the case as counsel, or are otherwise disqualified to sit as arbitrators: Walter A. Tilley, III, Esquire Stetler & Gribbin 13 8 East Market Street PO Box 2588 York, PA 17405-2588 Counsel for Plaintiff Mark W. Allshouse, Esquire Steven C. NucleI, PC 219 Pine Street Harrisburg, P A 1710 I Counsel for Defendant I Megan e. Huff, Esquire Stetler & Gribbin 138 East Market Street PO Box 2588 York, PA 17405-2588 WHEREFORE, your Petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Date: V/2-1 /,,~ "Z-- / ' Respectfully submitted, STETLER & GRIBBIN By: ~~P.<<:- Walter A. Tilley, III Attorney for Plaintiff Attorney LD. No. 37452 138 East Market Street PO Box 2588 '(ork,PA. 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRAL P A NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Walter A. Tilley, III, Esquire, counsel for Plaintiff, hereby certify that I served a true and correct copy of the within PETITION FOR APPOINTMENT OF ARBITRATORS, by first class mail, postage prepaid, on the following: Mark W. Allshouse, Esquire Stephen e. Nudel, PC 219 Pine Street Harrisburg, P A 1710 I STETLER & GRIBBIN Date: ~/"Z</b...... By: ~~-:2~ Walter A. Tilley, III 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WASTE MANAGEMENT OF PENNSYLVANIA, : INC., d/b/a WASTE MANAGEMENT OF CENTRALPA NO. 2000-5417 CIVIL Plaintiff v. CIVIL ACTION - LAW HAMPDEN CENTER, INC. Defendant JURY TRIAL DEMANDED ORDER OF COURT Upon notice of the unavailability of Roger M. Morgenthal to serve on the above captioned arbitration panel, Steven J. Fishman is hereby appointed as substitute Arbitrator therein. ~~~i ~~f) ~, ~ .'1 t 'Ph~! 'J:~ ~. r ~ t" (-.., :'.";\~~'\ \i1f\lVA1ASNN3d I I 'j"nrJ n~,:\f-'\.J:J8'^'n'" I\.U11 '_"v_.. Ir-:LJ......V1 V ZU :11 lid 9- snv 20 ILI'..JI"""'l' .." ,I" :,.': .10 AO\!_vl';', "....)~..~.J...; -" I.... .:J' :18::1:10-0311.:1 ?'V {2 ~ 1t- 'Ll ~ ~ "' 8 ~t;x) ~~r ---.J fl ~ (") c:~... C) c "" -"II ~:: c.. -rJ c(: C nl [.,~~ ;;e: .,'1 -/ : r,~~, ~ 2(. "> c , .. (:J z:": -- Cl -<~ . i (J_) ~C; -0 -::.j =H ~(:~ :z. , ': ('5 s>C ~ bf"il c -;:: ,'0 :i-:.! ::;! :n -< ~ W Ae~\~~~C cftTa. 1'1 ,.jp m ..."""" ~ ) L~~ 4- ) ) ) ) ) ) In The Court of Common Pl~as of t-\~~ C-"\~r ~ Cumberland County, ?ennsylvania , 'Ao. ZC06 ;- 5'f /7 C; (/~ 1.9 OATH We do solemnly swear (or affirm) that we the Constitution of the United States and the wealth and that we will discharge the due' will support, obey and defend Constit~tioa or this Common- 'delity. 1..-, l__ c... ." '-.iU? ( '~ ~.~. ~o:... ::) o We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the follOwing award: (Note: If damages for delay are awarded, they shall be separately stated.) I j ), · &"'" ,~ ~~ of, ~'''~'''-~ "'~~ ~ 11'\ ~ ~~'-..)"-,,,\ 2; ~\-h..~~C!... ($ 7. S'Do. .:'~~l\a/\5.. , AWARD applicable. ) . Arbitrator, dissents. (Insert name i~ Date of Hearing: I 0;/7/0"2- . 10 ((7(02- Now, the 17 day or O<U"ober award was eneered upon the dockee and parties or their attorneys. NOTICE OF ENTRY OF AWARD Date of Award: , )cO.J.. , at 'tdt., it.~!., notice thereof given by mail the above to the Arbitrators' cOmpensation to be paid upon appeal: $ J..10.00 By: ..vA J', d ~O<(, {S " 95" {o<i."'.~7'?, I s.3.lf:-- Sl, ",il'~:J ')\"', ~<', 'fuu.{{ ~ < U"ds"'-"( ~=/'<1b<..hn ~~UL.l~ 4 Fls.kWlt:t11 10 - (7~UJ- 7~ ~ JIk !~ !he CQur~ ot C~c:o~ rlaas of WASTE MANAGEMENT OF PA, INC. dba WASTE MANAGEMENT OF CENTRAL PA Cu:be:land Coun cy, :e:'_'1syL"an:..a ~o_ 2000. 5417 Civil~L- v. HAMPDF.N rF.N~F.R TNr OA::{ We ~o sol~ly syea: (or a:fi~) c~e Consci:ucion of :~e Unicec Scaces ~ealth and :~a: ~e ~ill d~scharge c~e ~i:l su~oor:. o=ey and defen~ C~r~ti=~ti:~ or th~s Co~o~- ::!.del.:cy, AMENDED We, the undersig~ed ar~i:rators, r~v~~5 ~eeo duly a??oi~:ed a~~ s~c~ (or affi~ed), :ake the follcw~g award: (Note: If dz=ages for delay are a~a~~ed, they Sh2:r ~e separacely sta~ed.) By agreement of the parties, this Amended Award is entered in the amount of $0.00 for either party. " . Arbitrator. dissencs. (!:lsert ::ame i: a.pplicable. ) Date of liear:..ng: 10/17/2002 Da~e of AlJar:i: Amended Award: 10/17/2002 10/ /2002 ~O'!!C:::: OF N'CN, c':..er;;~day 0: AJ~'iYL-, ~ 20(),2at.]~, p--.:!.. che above award was entered upon c~e dockec and ~ocice chereof given oy ~il to che p3r:1es or t~ei= 3c:o~eys. Arbicracors' cocpensation c: oe paid upon appeal: S 290.00 ~~~ Carr m~:L~,{~o S/-kp...::, C ~ q.. OCT 2 9 lOOl -, I '-, ~T~ .- --.-.) -<, c:" ,