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Home My WebLink About01-05376 KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Bax 6286 Wyomissing, PA 19610 (610)670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff vs. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-05376P JURY TRIAL DEMANDED AMENDED COMPLAINT NOTICE TO DEFEND TO: Eagle Freight Lines, Inc. You have been sued in court. If you wish to defend against the claims set forth in the followirigpages, 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 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 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. Lawyers' Referral Service of the Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 (800) 990-9108 1. The Plaintiff is Tri-State Trailer Leasing, Inc., (hereinafter "Tri-State') a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 3111 Grand Avenue, Neville Island, Allegheny County, Pennsylvania 15225. 2. The Defendant is Eagle Freight Lines, Inc., (hereinafter "Eagle Freight") a corporation believed to be organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 835 Wynnewood Road, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Tri-State and Eagle Freight are parties to a Lease Agreement dated July 8, 1999, (hereinafter "Lease Agreement") for the rental of a 1999 Trailmobile trailer, (hereinafter "Trailer') VIN X9016382. A copy of the Lease Agreement is attached hereto as Exhibit "A" and its contents are incorporated by reference herein as fully as though the same were set forth at length. 4. The Lease Agreement contains among others, the following material terms: a. Lessee agrees to pay as rental the sum of 300.00 per unit, per 4 week billing cycle, to be paid 15 days after the invoice date, hereafter until the completion of the lease, for a period of 6 months and the trailers have been returned in good condition. Loss or destruction of the trailers shall not abate the rental due. Plus $200 delivery charge. b. Lessee will be responsible for any damage to the trailer other than normal wear and tear. Lessee shall, at its own costs and expense procure and deliver to Lessor, simultaneously with or prior to delivery to Lessee of the trailers, and keep in full force and effect during the entire term of this Agreement, a Certificate of Insurance satisfactory to Lessor as to the insurer and as to the form and amount of coverage with premiums prepaid thereon for the term of this 2 Agreement, protecting Lessor against all loss and damages it may sustain or suffer because of the death of, injury to, or damage to property of any third person as a result of, in whole or in part, the use of the trailers while in the custody, possession, or control of Lessee with limits of $1,000,000. As to personal injury liability and $1,000,000. As to property damage liability. Single interest liability insurance protecting lessor only may be obtained by Lessor at the expenses of Lessee at a premium of not more than $100 per trailer for one year or less if Lessee does not provide the liability insurance described above, provided however, that Lessor is not required to purchase such insurance, and unless Lessor does purchase such single interest liability insurance, Lessee's obligations to procure insurance shall not be relieved or affect in any respect. c. Net/Net Lease -customer responsible for any and all maintenance to include tires and brakes. Trailer must terminate with 100% tires and brakes per outgoing inspection report. A per 32"d of tread wear on tire charge will be assessed as follows: $26.00/per 32°d for radial tires and caps. Brakes will be charged as a percentage of wear from outgoing inspection report, based on $450.00 brake job. NO MILEAGE CHARGES. d. Lessee is not permitted to haul refuse/garbage nor hazardous waste materials. If it is determined that either has been hauled during the lease, lessee will be responsible to purchase the trailers at purchase option price located on schedule B. e. Delinquency Charges: For each Rental payment or other sum due hereunder which is not paid when due, Lessee agrees to pay Lessor a delinquency charge calculated thereon at the rate of 1-1/2% per month for a period of delinquency provided that such a delinquency charge is not prohibited by law otherwise at the highest rate Lessee can legally obligate itself to pay and or Lessor can legally collect. 5. Eagle Freight made payments in connection with the Lease Agreement through the 4 week billing cycle ending on or about April 20, 2001. 6. On or about that date, Eagle Freight returned the Trailer to the premises of Tri-State Trailer Sales, Inc. in Lancaster County, Pennsylvania. 7. At the time Eagle Freight returned the Trailer, it was in a defective, damaged and unusable condition due to the fact that it had been used to haul hazardous materials, including used or discarded batteries, the acid from which leaked and contaminated the Trailer. 8. The tires for the Trailer had also been worn by 24/32na of an inch at a unit price of $26.00 per 32"d 9. The purchase price for the Trailer as set forth in the Lease Agreement is $16,803.00. 10. Rent for the Trailer continues to accrue at the rate of $300 per four week billing cycle until such time as Eagle Freight purchases the Trailer. '11. Tri-State issued to Eagle Freight numerous invoices representing ongoing rent charges, tire wear charges and the purchase price of the Trailer. 12. To date, Eagle Freight has failed and/or refused to pay the amount of the aforesaid invoices or any part thereof. 13. Tri-State has received an estimate of the costs to dispose of the Trailer in the amount of $970.00. 14. The charges imposed in connection with the aforesaid invoices are necessary, fair and reasonable and moreover are charges that Eagle Freight agreed to pay in connection with the Lease Agreement. COUNTI BREACH OF CONTRACT 15. Plaintiffs incorporate by reference herein the contents of paragraphs 1 through 14 inclusive, of this Amended Complaint as fully as though the same were set forth at length. 16. Eagle Freight's return of the trailer before the expiration of the Lease Agreement and in a defective, contaminated and unusable condition constitutes a material breach of the Lease Agreement. 17. As a direct and proximate result of the terms of the Lease Agreement, Tri- State has suffered damages in the amount of $20,834.50 through November 4, 2001, will continue to suffer ongoing damages for unpaid rent at the rate of $300.00 per four (4) week billing cycle and disposal charges of $970.00. 18. Tri-State has fulfilled all conditions precedent to its recovery under the terms of the Lease Agreement. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $20,834.50, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNTII NEGLIGENCE 19. Plaintiffs incorporate by reference herein the contents of paragraphs 1 through 18 inclusive, of this Amended Complaint as fully as though the same were set 5 forth at length. 20. Eagle Freight owed a duty of reasonable care to Tri-State in its possession and use of the Trailer during the term of the Lease Agreement. 21. Eagle Freight breached that duty of care in at least the following respects: a. Hauling improper materials; b. Improperly hauling materials that it knew or should have known could leak and contaminate the Trailer; c. Hauling materials in such a way so as to increase the risk of harm that they would leak and contaminate the trailer; d. Not noticing the effects of leaking battery acid on the Trailer as well as on the ground upon which the Trailer traveled and/or was stored; e. Not remedying the effects of leaking battery acid on the Trailer as well as on the ground upon which the Trailer traveled and/or was stored; f. Causing or permitting the Trailer to become contaminated and/or otherwise damaged by battery acid; g. Agreeing to haul batteries when it knew or should have known of their propensity to leak and cause damage to the containers in which they were stored, including the Trailer. 21. As a direct and proximate result of the negligence of Eagle Freight as aforesaid, Tri-State has sustained the damages set forth at length hereinabove. 22. As a further direct and proximate result of the negligence of Eagle Freight as aforesaid, Tri-State, has been prevented from re-leasing the Trailer for profit. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount not in excess of $50,000.00, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT III FRAUD 23. Plaintiffs incorporate by reference herein the contents of paragraphs 1 through 22, inclusive, of this Amended Complaint as fully as though the same were set forth at length. 24. Tri-State believes and therefore avers that prior to entering into the Lease Agreement, Eagle Freight knew that it intended to use the Trailer for purposes of hazardous materials, including used batteries, which Eagle Freight knew had the propensity to leak and damage the containers in which they were stored, including the Trailer. 25. Tri-State believes and therefore avers that Eagle Freight deliberately concealed from Tri-State its intended purpose of using the Trailer to haul hazardous materials to induce Tri-State to lease the Trailer because Eagle Freight expected that Tri- State would not have leased the Trailer to Eagle Freight had it known that Eagle Freight intended to haul hazardous materials. 26. Tri-State believes and therefore avers that Eagle Freight, at the time it 7 entered into the Lease, never intended to purchase the Trailer and acted in knowing or reckless disregard of the consequences, including damage to the Trailer beyond repair, of hauling hazardous materials, including used batteries. 27. Tri-State relied to its detriment on Eagle Freight's concealment of the fact that it intended to use the Trailer to haul hazardous materials because it leased the Trailer to Eagle Freight. 28. Eagle Freight's actions to induce Tri-State to lease the Trailer to it, as aforesaid, were deliberate, malicious and borne of evil motive so as to justify an award of punitive damages to deter Eagle Freight and others from committing such acts in the future. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT IV 29. Plaintiff incorporates by reference herein the contents of paragraphs 1 through 28, inclusive, of this Amended Complaint as fully as though the same were set forth at length. 30. Eagle Freight, by using the Trailer for improper purposes or using improper methodologies as aforesaid, and returning the Trailer in a condition damaged and unusable to Tri-State, has deprived Tri-State of its rights of ownership and use of the Trailer, including but not limited to causing Tri-State a loss of profits resulting from Tri- State being unable to lease the Trailer to any other entities. 31. Tri-State believes and therefore avers that Eagle Freight intentionally and with wilful and wanton disregard of the rights of Tri-State in its Trailer, induced Tri-State to enter into the Lease, took possession of the Trailer, intentionally hauled materials it knew, or reasonably expected would damage the Trailer and, rather than purchasing the Trailer returned the Trailer to Tri-State in a damaged and unusable condition. 32. Tri-State believes and therefore avers that Eagle Freight's deliberate and/or indifferent violation of the rights of Tri-State was deliberate, malicious and borne of evil motive so as to justify an award of punitive damages to deter Eagle Freight and others from committing such acts in the future. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. KOZLOFF STOUDT Peter F. Schuchman, Jr., Esquire Attorney ID# 69343 Attorney for Plaintiff Dated: ~~ ~~' ~~ RPR-12-2002 10 00 TRI STRTE TRL SALES 412 331 7025 P.02 VERIFICATION The undersigned, having read the attached Amended Complaint, hereby verifies that all averments of fact not appearing of record contained in the attached complaint are true and correct to the best of the undersigned's personal knowledge or information and belief. To the extent that the Complaint is based on information provided to the undersigned by counsel, the undersigned has relied upon counsel in taking this verification. This verification is made subject to the penalties of 28 Pa. C.S. § 4904 relating to unsworn falsification to authorities. TRI-STATE TRAILER LEASING, INC. v _^- - - --~-~ Title: DATED: 7' I! d Y TOTRL P.02 TRI-STATE TRAILER LEASING, INC., Plaintiff vs. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-05376P JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter F. Schuchman, Jr., Esquire, hereby certify that on April 15, 2002, a copy of the attached Amended Complaint was served upon the following parties via First Class Mail, postage prepaid: Dale A. Betty, Esquire 3130 Center Square West 1500 Market Street Philadelphia, PA 19102 Attorney for Defendant This Certificate is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. KOZLOFF STOUDT ~~ Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 Attorneys For Defendant Jack Emus ~~Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215)972-8065 TRI-STATE TRAILER LEASING, INC. v. EAGLE FREIGHT LINES. INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.2001-05376P RULE AND NOW, this i3Y day of .ryo~'i..6i+. , 2002 upon consideration of the within Petition of Counsel for Defendant Eagle Freight Lines, Inc. for Leave to Withdraw, a Rule is hereby entered to show cause why the Petition to Withdraw as counsel for defendant should not be granted. All proceedings to stay meanwhile. Rule Returnable th1 da3L~f ~9~1~ /~ olsy~ a/~ g-.,,.~~z.. 6~ ~~ ~4. ,0~ ~~F°~ ~c~ V~ ~` G q.~ ~ a ~~~~ ~~ 1 ;, BY THE COURT: ,_~r '1_. ~'~~~' ~t ~~ CFP 1 U Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215)972-8065 TRI-STATE TRAILER LEASING, INC. v. EAGLE FREIGHT LINES. INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEA5 OF CUMBERLAND COUNTY NO.2001-05376P ORDER AND NOW, this day of 2002 upon consideration of the within Petition it is hereby ORDERED that Dale A. Betty, Esquire is permitted to withdraw his appearance as counsel of record for defendant Eagle Freight Lines, Inc. who has days in which to obtain counsel. BY THE COURT: J. Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215)972-8065 TRl[-STATE TRAILER LEASING, INC. v. EAGLE FREIGHT LINES. INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.2001-05376P PETITION TO OBTAIN APPROVAL TO WITHDRAW AS COUNSEL OF RECORD FOR DEFENDANT EAGLE FREIGHT LINES, INC. AND TO OBTAIN AN EXTENSION OF TIME FOR DEFENDANT TO OBTAIN COUNSEL The Petition of Dale A. Betty, Esquire respectfully represents: 1. The defendant Eagle Freight Lines, Inc. during the pendency of this litigation has been represented by the law firm of Jack Emas & Associates and on April 2, 2002 Dale A. Betty, Esquire entered his appearance on behalf of defendant Eagle Freight Lines, Inc., a copy of which is attached hereto and incorporated by reference and marked Exbibit "A". 2. Defense counsel was provided to Eagle Freight Lines, Inc. pursuant to its policy of liability and principal damage insurance with Star Insurance Company, Policy No. CA0101262 for the cause of action set forth in plaintiff s Complaint. 3. By letter dated August 9, 2002 Sherry Healey as authorized representative of Star Insurance Company informed Eagle Freight Lines, Inc. based upon plaintiff s amended complaint it would not defend or indemnify it since the lost did not occur during the policy period; the claims were not within the coverage due to 3 specific exclusions and that damages based upon fraud and conversion were not subject to the terms ofYhe policy. 4. As a result of the foregoing, the law firm of Jack Emas & Associates and Dale A. Betty, Esquire were discharged as counsel for defendant Eagle Freight Lines, Inc. on August 30, 2002. The concurrence of counsel to plaintiff has been sought but has not yet been received. 6. In view of the foregoing, Petitioner requests the court to approve the Petition to Withdraw as Counsel ofrecord for defendant Eagle Freight Lines, Inc. and to permit defendantEagle Freight Lines, Inc. a reasonable period of time in which to obtain counsel. JACK EIVIA5 & ASSOCIATES DALE A. BETTY ~cr--- __ ... ~~a~, Jack Emas cXi Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215)972-8065 TRI-STATE TRAILER LEASING, COURT OF COMMON PLEAS OF INC. CUMBERLAND COUNTY v. N0.2001-05376P ~> - ~~: `~', EAGLE FREIGHT LINES. INC. "~ =~ ! -'= a ~~~ ~~. f .i`, ENTRY OF APPEARANCE _ ; ~_ ,~'~' l` ~ a -• -t ~j ~,~ TO THE PROTHONOTARY: -• '~' Kindly enter my appearance on behalf of Defendant, Eagle Freight Lines, Inc. in the above entitled action. JACK EMAS & ASSOCIATES ~~ BY: ~._ ss. ~C! DALE A. BETTY Attorney for Defendant, Eagle Freight Lines, Inc. Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215)972-8065 TRII-STATE TRAILER LEASING, INC. v. EAGLE FREIGHT LINES. INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.2001-05376P MEMORANDUM OF LAW IN SUPPORT OF PETITION TO OBTAIN APPROVAL TO WITHDRAW AS COUNSEL OF RECORD FOR DEFENDANT EAGLE FREIGHT LINES. INC. The Pennsylvania Rules of Professional Conduct provide that a lawyer shall withdraw from the representation of a client when: Rule 1.16(x)(3) -the lawyer is dischazged. The Rules further provide that a lawyer may withdraw if the withdraw can be accomplished without material adverse effect on the interest of the client when: Rule 1.16(b)(6) -other good cause for withdraw exists. In the instant case, Eagle Freight Lines, Inc. was insured by Star Insurance Company and when sued by plaintiff, the law firm of Jack Emas & Associates was retained by Staz Insurance Company for the purposes of representing their insured, Eagle Freight Lines, Inc. in the above- referenced lawsuit. Dale A. Betty, Esquire thereafter entered his appearance on behalf of defendant Eagle Freight Lines, Inc. on Apri12, 2002 The disclaimer of coverage by Star Insurance Company per its letter of August 9, 2002 to defendant Eagle Freight Lines, Inc. based its decision on the claims set forth in the amended complaint and further stated that its coverage to defendant Eagle Freight Lines, Inc. along with the legal services being afforded to it would end on August 30, 2002. In view of the foregoing there is good and just cause for the court to grant the petition to withdraw as counsel of record for defendant. WHEREFORE, Petitioner requests the court to permit petitioner to withdraw his appearance for defendant and provide defendant sufficient time in order to obtain counsel. JACK EMAS & ASSOCIATES BY: ~- ~ . DALE A. BETTY - ~~ ~ VERIFICATION I, DALE A. BETTY, ESQUIRE, hereby state that I am the attorney for defendant, Eagle Freight Lines, Inc., in this action, and I verify that the statements in the foregoing Petition to Withdraw as counsel of Record for Defendant Eagle Freight Lines, Inc. and to Obtain an Extension of Time for defendant to obtain counsel is true and correct to the best ofmy knowledge, information and belief, and that the information in this pleading was obtained by me from representatives of said defendant. The undersigned understands that the statements made herein are subject to the penalties of 18 Pa. C.S.A. section 4904 relating to unsworn falsification to authorities. ~Lws.t i4. /i...rl~ DALE A. BETTY, ESQL)IItE DATED: ~ g Zoaa_ c7 r-; r.w ~; ~,~_ ' ' v r _~ <== _. e. -`c - y, ~ A ' '°~ _ L~7 ~Jil v ?~ ~~ .p .~. ~ _ ~,~ TRI-STATE TRAILER LEASING, INC., Plaintiff vs. EAGLE FREIGHT LINES, INC, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-5376 CIVIL CIVIL ACTION -LAW IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT BEFORE HOFFER, P.J., HESS AND OLER, J.J. ORDER AND NOW, this ~ ? ~ day of August, 2002, the court being satisfied that the dismissal of the tort counts in this case on preliminary objections would be premature, the preliminary objections of the defendant, Eagle Freight Lines, Inc., are DENIED without prejudice to defendant to raise the matter on summary judgment. //r %Jaso .Hopp, Esquire Fo e Plaintiff ale A. Betty, Esquire For the Defendant :rlm ~/~ °p'~° g Q .Qa a~s BY THE COURT, `g±wa~ossr p~ixx.~s~SL" m~u ~w.h ~xara -"a._ __ - ,,_~ i rr _ t~l_~r c.Jl~ril.'t; ~} CUh~3==;~ilU"'Ci) "p;~r ~'ENIVS)'L+IApd~r~ ~VTY r ~ ~,V .,; Jacl~ Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08605 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215)972-8065 TRI-STATE TRAILER LEASING, INC. v. EAGLE FREIGHT LINES. INC. AND NOW, this day of 2002 upon consideration of the preliminary objections of defendant Eagle Freight Lines, Inc. with Memorandum of Law and any responses thereto, it is hereby ORDERED that the Preliminary Objections are sustained as follows: 1. Count Two of Plaintiff s Amended Complaint is stricken; 2. Count Three of Plaintiff's Amended Complaint is stricken; 3. Count Four of Plaintiffs Amended Complaint is stricken; IN THE ALTERNATIVE 4. The punitive damage claim, Count Three of plaintiff's Amended Complaint is stricken; 5. The punitive damage claim, Count Four of plaintiff s Amended Complaint is stricken; BY THE COURT: Attorney for Defendant, Eag18 Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.2001-05376P ORDER J. Jack EIIIas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215)972-8065 TRI-STATE TRAILER LEASING, INC. v. EAGLE FREIGHT LINES. INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P PRELIMINARY OBJECTIONS OF DEFENDANT EAGLE FREIGHT LINES, INC., TO PLAINTIFF'S AMENDED COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(2), (3) and (4) IN THE NATURE OF A MOTION TO STRII~ AND AS A DEMURRER 1. Plaintiff, Tri-State Trailer Leasing, Inc., (Tri-State) instituted the present action by Writ of Summons. On March 18, 2002, the Complaint was filed and defendant, Eagle Freight Lines, Inc., (Eagle) was served the same day. 2. Defendant Eagle filed preliminary objections to the Complaint and thereafter on April 16, 2002 was served with an amended Complaint. A copy of plaintiff's Amended Complaint is attached hereto, incorporated by reference and mazked Exhibit "A". 3. Plaintiff Tri-State and defendant Eagle entered into a contract for the lease/rental of plaintiff s trailmobile trailer (trailer). A copy of the contract/lease agreement is attached hereto, incorporated herein by reference and marked Exhibit "B". 4. The amended Complaint alleges four causes of action: pursuant to the provisions of the lease agreement, Tri-State has claimed money damages for breach of contract, Count One, for defendant Eagle returning the trailer in a damaged condition; a corresponding negligence claim, Count Two, a corresponding fraud claim, Count III as well as a corresponding conversion claim, Count IV. 5. Pa.R.C.P. 1028(a)(2) permits preliminary objections for, among other things, a failure of a pleading to conform to law, § 1028(a)(3) permits preliminary objections for insufficient specificity in a pleading whereas §1028(a)(4) allows preliminary objections for legal insufficiency of a pleading. 6. Pa.R.C.P. 1019(a) requires a pleading to contain material facts on which a cause of action is based. MOTION TO STRII{EfDEMURRER Factual and legal insufficiency to support claim of Negligence -Count II: 7. Plaintiffs Amended Complaint, Count Two, alleges defendant Eagle's conduct was negligent and breached its duty of reasonable care to plaintiff in its possession and use of the trailer during the term of the contractual lease agreement. 8. The rights, duties and remedies of the parties is as set forth in the contract, Exhibit "B", thus Tri-State's claim is based on a breach of contract. l: ii 9. Plaintiff Tri-State's claim for negligence is a tort action and basically is a duplicate claim for the underlying breach of contract action. 10. Plaintiff's claim for negligence is set forth in paragraph 21, Count Two, and states that Eagle breached the duty of care as follows: (a) hauling improper materials; (b) improperly hauling materials that it knew or should have known could leak and contaminate the trailer; (c) hauling materials in such a way so as to increase the risk of harm that they would leak and contaminate the trailer; (d) not noticing the effects of leaking battery acid on the trailer as well as on the ground upon which the trailer travelled and/or was stored; (e) not remedying the effects of leaking battery acid on the trailer as well as on the ground upon which the trailer travelled and/or was stored: (f) causing or permitting the trailer to become contaminated and/or otherwise damaged by battery acid; (g) agreeing to haul batteries when it knew or should have known of their propensity to leak and cause damage to the containers in which they were stored, including the trailer. 11. A tort action cannot be maintained when it, in effect, duplicates the primary claim of breach of contract, thus the tort claim is barred by the "gist of the action" doctrine since it is legally insufficient being a negligent performance of contractual duties. Bash v. Bell Telephone Co. 601 ii A.2d 825 (Pa. Super. 1992). 12. The economic losses alleged in the tort negligence claim aze identical to the economic losses alleged in the breach of contract claim and since the "gist of the action" doctrine cannot be evaded by the mere expedient of pleading the negligence acts when plaintiff s claim is premised on the terms of contractual conditions, the negligent claim is legally insufficient. WHEREFORE, Defendant Eagle requests the Court to strike/dismiss Count Two of plaintiff s Amended Complaint for being legally insufficient pursuant to Pa.R.C.P, 1028(a)(4). MOTION TO STRII~/DEMURRER Factual and legal insufficiency to support claim of fraud -Count III: 13. Plaintiff s Amended Complaint, Count Three, alleges that defendant Eagle's conduct was fraudulent in that it knew prior to entering into the lease agreement that it would not comply with all of the provisions/terms of the lease agreement. 14. Plaintiff Tri-State's tort claim of fraud is basically a duplicate claim for the underlying breach of contract action. 15. Tri-State's claim for fraud is set forth in pazagraphs 24-28 and summarily the allegations are that Eagle knew that it: (i) Intended to use the trailer for purposes of hazardous materials, including batteries - ¶24; (ii) Intentionally concealed its intentions from plaintiff - ¶25; (iii) Would never purchase the trailer - ¶26; (iv) That Tri-State relied on the concealment and entered into the lease - ¶27; (v) That Eagle's action was deliberate, malicious and borne of evil motive requiring punitive damages - ¶28. 16. The lease agreement provided that "Lessee is not permitted to haul refuse/garbage nor hazardous waste materials. if it is determined that either has been hauled during the lease, lessee will be responsible to purchase the trailer at purchase option price located on schedule B (Exhibit "B" -lease ¶13). 17. The fraud claim is essentially another way of stating the breach of contract claim, that is, Eagle breached the contract by failing to comply with paragraph 13, not to haul hazardous waste materials, batteries, that leaked, causing damage requiring Eagle to purchase the trailer. 18. The terms of the lease agreement are not collateral to the fraud count thus the tort claim of fraud is barred by the "gist of the action" doctrine since it is legally insufficient due to the fraud count sounding in contract. 19. Since the "gist of the action" doctrine cannot be evaded by the mere expedient of pleading a fraud claim which reveals that the gist of the count as well as plaintiff s claim is that Eagle breached its obligations under the terms of the contract, the fraud claim is legally insufficient. WHEREFORE, Defendant Eagle requests the Court to strike/dismiss Count Three of Plaintiff's Amended Complaint for being legally insufficient pursuant to Pa.R.C.P. 1028(a)(4). MOTION TO STRIKE/DEMURRER Factual and Legal Insufficiency to support claim for conversion -Count Four 20. Plaintiff s Amended Complaint, Count Four, alleges that defendant Eagle returned the trailer to plaintiff in a damaged and unuseable condition which was a breach of Eagle's duty to Tri- STATE since it, contrary to the lease agreement, hauled material which caused damage, thus depriving Tri-State of its rights of ownership, use, profits which conduct was deliberate, malicious and borne of evil motive requiring punitive damages. 21. The rights, duties and remedies of the parties is as set forth in the contract, Exbibit "B", thus Tri-State's claim is based on a breach of contract. 22. Plaintiff Tri-State's claim for conversion is a tort action and basically is a duplicate claim for the underlying breach of contract action. 23. A tort action cannot be maintained when it, in effect, duplicates the primary claim of breach of contract, thus the conversion claim is barred by the "gist of the action" doctrine since it is legally insufficient being a negligent performance of contractual duties. Bash v. Bell Telenhone Co., 601 A.2d 825 (Pa. Super. 1992). 24. The economic losses alleged in the conversion claim are substantially identical to the economic losses alleged in the breach of contract claim and since the "gist of the action" doctrine cannot be evaded by the mere expedient of pleading tort conversion acts when plaintifY s claim is premised on the terms of contractual conditions, the conversion claim is legally insufficient. ~i WHEREFORE, Defendant Eagle requests the Court to strike/dismiss Count Four of plaintiff's Amended Complaint for being legally insufficient pursuant to Pa.R.C.P. 1028(a)(4). MOTION TO STR1I~/DEMURRER Lega@ Insufficiency to support a claim of punitive damages for breach of mere contractual duties -Count Three and Count Four 25. Plaintiff s claim against defendant Eagle arises from an alleged breach of contract. 26. Plaintiff s Amended Complaint, Counts One, Two, Three and Four fail to state a claim upon which a cause of action would be founded on a breach of a duty imposed by social policy since plaintiff s claim azises from an alleged breach of the contract between the parties. Exhibit «B» 27. Plaintiff s claim for punitive damages is legally insufficient since punitive damages will not be assessed and are not recoverable for a breach of mere contractual duties. Daniels Adams Associates v. Rimbach Pub. Inc., Pa. Super. 429 A.2d 726 (1981). 28. Plaintiff s claim for punitive damages is insufficient since the alleged tortious acts are duplicate assertions for plaintiff's claim for breach of contract and there can be no recovery where the only alleged tortious act was a breach of contract. Standazd Pipe Line Coatine Co. v. Solomon and Teslovich, 496 A.2d 840 (Pa. Super. 1985). WIEREFORE, Defendant Eagle requests the Court to strike/dismiss Counts Three and Four of plaintiff s Amended Complaint for failure to comply with the requirements of Pa.R. C.P. 1028(a)(3) and (4). MOTION TO STRIKE/DEMURRER Factual and Legal Insufficiency to support claim of punitive damages -Count Three and Count Four 29, Plaintiff Tri-State's amended Complaint, Count One, sets forth the basis of its claim, a private contract (Exhibit "B"), whose terms define the obligations of plaintiff Tri-State and defendant Eagle. 30. Counts Three and Four of Plaintiff's Amended Complaint request punitive damages which fails to state a claim upon which relief can be granted since punitive damages cannot be recovered merely for a breach of contract. 31. Count Three and Four of Plaintiff s Amended Complaint request punitive damages without asserting any facts of outrageous conduct of defendant Eagle and the general averments are conclusionary in nature and do not set forth with the required particularity the factual allegations that would show and/or infer that defendant Eagle acted with a malicious, willful state of mind. 32. Counts Three and Four of plaintiff s Amended Complaint request punitive damages without asserting any facts of any duty imposed by society that defendant Eagle may have breached in addition to the rights, duties and obligations of the contract between the parties. 33. Pa.R.C.P. 1019(a) provides that the Complaint shall set forth material facts in support of plaintiff s claim and in this instance punitive damages. 34. The assertions in Counts Three and Four of plaintiff s Amended Complaint are factually and legally insufficient and clearly do not establish the outrageous conduct necessary to support a claim for punitive damages. 35. The specific assertions in Count Three of plaintiff's Amended Complaint are as follows: 24. Tri-State believes and therefore avers that prior to entering into the lease agreement, Eagle Freight knew that it intended to use the trailer for purposes of hazardous materials, including used batteries, which Eagle Freight knew had the propensity to leak and damage the containers in which they were stored, including the trailer. 25. Tri-State believes and therefore avers that Eagle Freight deliberately concealed from Tri-State its intended purpose of using the trailer to haul hazardous materials to induce Tri-State to lease the trailer because Eagle Freight expected that Tri-State would not have leased the trailer to Eagle Freight had it known that Eagle Freight intended to haul hazardous materials. 26. Tri-State believes and therefore avers that Eagle Freight, at the time it entered into the lease, never intended to purchase the trailer and acted in knowing or reckless disregard of the consequences, including damage to the trailer beyond repair, of hauling hazardous materials, including use batteries. 27. Tri-State relied to its detriment on Eagle Freight's concealment of the fact that it intended to use the trailer to haul hazardous materials because it leased the trailer to Eagle Freight. 28. Eagle Freight's actions to induce Tri-State to lease the trailer to it, as aforesaid, were deliberate, malicious and borne of evil motive so as to justify an award of punitive damages to deter Eagle Freight and others from committing such acts in the future. 36. The specific assertions in Count Four of plaintiff's Amended Complaint are as follows: ~~ 30. Eagle Freight, by using the trailer for improper purposes or using improper methodologies as aforesaid, and returning the trailer in a condition damaged and unuseable to Tri-State, has deprived Tri-State of its rights of ownership and use of the trailer, including but not limited to causing Tri-State a loss of profits resulting from Tri-State being unable to lease the trailer to any other entities. 31. Tri-STATE believes that therefore avers that Eagle Freight intentionally and with willful and wanton disregard of the rights of Tri-State in its trailer, induced Tri-State to enter into the lease, took possession of the trailer, intentionally hauled materials it knew, or reasonably expected would damage the trailer and, rather than purchasing the trailer returned the trailer to Tri-STATE in a damaged and unuseable condition. 32. Tri-STATE believes that therefore avers that Eagle Freight's deliberate and/or indifferent violations of the rights of Tri-State was deliberate, malicious and borne of evil motive so as to justify an award of punitive damages to deter Eagle Freight and others from committing such acts in the future. 37. The aforementioned assertions in Counts Three and Four of plaintiff's Amended Complaint are conclusionary in nature and do not set forth with the required particularity the factual allegations that would show and/or infer that any acts of defendant Eagle were outrageous and done with any malicious intent or a willful state of mind. WHEREFORE, Defendant Eagle requests the Court to strike/dismiss Count Three and Count Four of plaintiff s Amended Complaint for failing to comply with the requirements of Pa.R.C.P. 1028(a)(3) and (4). JACK EMAS & ASSOCIATES --, BY: ~-u.lc. iK DALE A. BETTY ~i __ _~~ EXHIBIT "A" KOZLOFF STOUDT By: Petex F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff vs. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-05376P JURY TRIAL DEMANDED AMENDED COMPLAINT NOTICE TO DEFEND TO: Eagle Fxeight Lines, Inc. 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 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 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. Lawyers' Referral Service of the Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 (800) 990-9108 ,~.. ;~ 1. The Plaintiff is Tri-State Trailer Leasing, Inc., (hereinafter "Tri-State') a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 3111 Grand Avenue, Neville Island, Allegheny County, Pennsylvania 15225. 2. The Defendant is Eagle Freight Lines, Inc., (hereinafter "Eagle Freight") a corporation believed to be organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 835 Wynnewood Road, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Tri-State and Eagle Freight are parties to a Lease Agreement dated July 8, 1999, (hereinafter "Lease Agreement") for the rental of a 1999 Trailmobile trailer, (hereinafter "Trailer") VIN X9016382. A copy of the Lease Agreement is attached hereto as Exhibit "A" and its contents are incorporated by reference herein as fully as though the same were set forth at length. 4. The Lease Agreement contains among others, the following material terms: a. Lessee agrees to pay as rental the sum of 300.00 per unit, per 4 week billing cycle, to be paid 15 days after the invoice date, hereafter until the completion of the lease, for a period of 6 months and the trailers have been returned in good condition. Loss or destruction of the trailers shall not abate the rental due. Plus $200 delivery charge. b. Lessee will be responsible fox any damage to the trailer other than normal wear and tear. Lessee shall, at its own costs and expense procure and deliver to Lessor, simultaneously with or prior to delivery to Lessee of the trailers; and keep in full force and effect during the entire term of this Agreement, a Certificate of Insurance satisfactory to Lessor as to the insurer and as to the form and amount of coverage with premiums prepaid thereon for the term of this 2 Agreement, protecting Lessor against all loss and damages it may sustain or suffer because of the death of, injury to, or damage to property of any third person as a result of, in whole or in part, the use of the trailers while in the custody, possession, or control of Lessee with limits of $1,000,000. As to personal injury liability and $1,000,000. As to property damage liability. Single interest liability insurance protecting lessor only may be obtained by Lessor at the expenses of Lessee at a premium of not more than $100 per trailer for one year or less if Lessee does not provide the liability insurance described above, provided however, that Lessor is not required to purchase such. insurance, and unless Lessor does purchase such single interest liability insurance, Lessee's obligations to procure insurance shall not be relieved or affect in.any respect. c. Net/Net Lease -customer responsible for any and all maintenance to include tires and brakes.. Trailer must terminate with 100% tires and brakes per outgoing inspection report. A per 32"d of tread wear on fire charge will be assessed as follows: $26.00/per 32"d for radial tires and caps. Brakes will be charged as a percentage of wear from outgoing inspection report, based on $450.00 brake job. NO MILEAGE CHARGES. d. Lessee is not permitted to haul refuse/ garbage nor hazardous waste materials. If it is determined that either has been hauled during the lease, lessee will be responsible to purchase the trailers at purchase option price located on schedule B. e. Delinquency Charges: For each.Rental payment or other sum due hereunder which is not paid when due, Lessee agrees to pay Lessor a delinquency charge calculated thereon at the rate of 1-1/2% per month for a period of delinquency provided that such a delinquency charge is not prohibited by law otherwise at the highest rate Lessee can legally obligate itself to pay and or Lessor can legally collect. 5. Eagle Freight made payments in connection with the Lease Agreement through the 4 week billing cycle ending on or about Apri120, 2001. 6. On or about that date, Eagle Freight returned the Trailer to the premises 3 of Tri-State Trailer Sales, Inc. in Lancaster County, Pennsylvania. 7. At the time Eagle Freight returned the Trailer, it was in a defective, damaged and' unusable condition due to the fact that it had been used to haul hazardous materials, including used or discarded batteries, the acid from which leaked and contaminated the Trailer. 8. The tires for the Trailer had also been worn by 24/32"a of an inch at a unit price of $26.00 per 32"a 9. The purchase price for the Trailer as set forth in the Lease Agreement is $16,803.00. 10. Rent for the Trailer continues to accrue at the rate of $300 per four week billing cycle until such time as Eagle Freight purchases the Trailer. 11. Tri-State issued to Eagle Freight numerous invoices representing ongoing rent charges, fire wear charges and the purchase price of the Trailer. 12. To date, Eagle Freight has failed and/or refused to pay the amount of the aforesaid invoices or any part thereof. 13. Tri-State has received an estimate of the costs to dispose of the Trailer in the amount of $970.00. 14. The charges imposed in connection with the aforesaid invoices are necessary, fair and reasonable and moreover are charges that Eagle Freight agreed to pay in connection with the Lease Agreement. COUNTI BREACH OF CONTRACT 15. Plaintiffs incorporate by reference herein the contents of paragraphs 1 through 14 inclusive, of this Amended Complaint as fully as though the same were set forth at length. 16. Eagle Freight's return of the trailer before the expiration of the Lease Agreement and in a defective, contaminated and unusable condition constitutes a material breach of the Lease Agreement. 17. As a direct and proximate result of the terms of the Lease Agreement, Tri- State has suffered damages in the amount of $26,834.50 through November 4, 2001, will continue to suffer ongoing damages for unpaid rent at the rate of $300.00 per four (4) week billing cycle and disposal charges of $970.00. 18. Tri-State has fulfilled all conditions precedent to its recovery under the terms of the Lease Agreement. WHEREFORE, Plaintiff, Tri-state Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $20,834.50, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNTII NEGLIGENCE 19. Plaintiffs incorporate by reference herein the contents of paragraphs 1 through 18 inclusive, of this Amended Complaint as fully as though the same were set 5 forth. at length. 20. Eagle Freight owed a duty of reasonable care to Tri-State in its possession and use of the Trailer during the term of the Lease Agreement. 21. Eagle Freight breached that duty of care in at least the following respects: a. Hauling improper materials; b. Improperly hauling materials that it knew or should have known could leak and contaminate the Trailer; c. Hauling materials in such a way so as to increase the risk of harm that they would leak and contaminate the trailer; d. Not noticing the effects of leaking battery acid on the Trailer as well as on the ground upon which the Trailer traveled and/ or was stored; e. Not remedying the effects of leaking battery acid on the Trailer as well as on the ground upon which the Trailer traveled and/or was stored; Causing or permitting the Trailer to become contaminated and/or otherwise damaged by battery acid; g. Agreeing to haul batteries when it knew or should have known of their propensity to leak and cause damage to the containers in which they were stored, including the Trailer. 21. As a direct and proximate result of the negligence of Eagle Freight as aforesaid, Tri-State has sustained the damages set forth at length hereinabove. 22. As a further direct and proximate result of the negligence of Eagle Freight as aforesaid, Tri-State, has been prevented from re-leasing the Trailer for profit. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount not in excess of $50,000.00, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT III FRAUD 23. Plaintiffs incorporate by reference herein the contents of paragraphs 1 through 22, inclusive, of this Amended Complaint as fully as though the same were set forth at length. 24. Tri-State believes and therefore. avers that prior to entering into the Lease Agreement, Eagle Freight knew that it intended to use the Trailer for purposes of hazardous materials, including used batteries, which Eagle Freight knew had the propensity to leak and damage the containers in which they were stored, including the Trailer. 25. Tri-State believes and therefore avers that Eagle Freight deliberately concealed from Tri-State its intended purpose of using the Trailer to haul hazardous materials to induce Tri-State to lease the Trailer because Eagle Freight expected that Tri- State would not have leased the Trailer to Eagle Freight had it known that Eagle Freight intended to haul hazardous materials. 26. Tri-State believes and therefore avers that Eagle Freight, at the time it 7 entered into the Lease, never intended to purchase the Trailer and acted in knowing or reckless disregard of the consequences, including damage to the Trailer beyond repair, of hauling hazardous materials, including used batteries: 27. Tri-State relied to its detriment on Eagle Freight's concealment of the fact that it intended to use the Trailer to haul hazardous materials because it leased the Trailer to Eagle Freight. 28. Eagle Freight's actions to induce Tri-State to lease the Trailer to it, as aforesaid, were deliberate, malicious and borne of evil motive so as to justify an award of punitive damages to deter Eagle Freight and others from committing such acts in the future. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines,, Inc. in an.amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as maybe recoverable under applicable law. COUNT IV CONVERSION 29. Plaintiff incorporates by reference herein the contents of paragraphs 1 through 28, inclusive, of this Amended Complaint as fully as though the same were set forth at length. 30. Eagle Freight, by using the Trailer for improper purposes or using improper methodologies as aforesaid, and returning the Trailer in a condition damaged s and unusable to Tri-State, has deprived Tri-State of its rights of ownership and use of the Trailer, including but not limited to causing Tri-Stateloss of profits resulting from Tri- State being unable to lease the Trailer to any other entities. 31. Tri-State believes and therefore avers that Eagle Freight intentionally and with wilful and wanton disregard of the rights of Tri-State in its Trailer, induced Tri-State to enter into the Lease, took possession of the Trailer, intentionally hauled materials it knew, or reasonably expected would damage the Trailer and, rather than purchasing the Trailer returned the Trailer to Tri-State in a damaged and unusable condition. 32. Tri-State believes and therefore avers that Eagle Freight's deliberate and/ or indifferent violation of the rights of Tri-State was deliberate, malicious and borne of evil motive so as to justify an award of punitive damages to deter Eagle Freight and others from committing such acts in the future. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. KOZLOFFSTOUDT r~ Peter F. Schuchman, Jr., Esquire Attorney ID# 69343 Attorney for Plaintiff Dated: ~'" ~'7' oZ_ °RPR-12-2002 10 00 TRI STATE TRL SALES 412 331 7025 P.02 vEluFacaTloN The undersigned, having read the attached Amended Complaint, hereby verifies that all averments of fact not appeazing of record contained in the attached complaint are true and correct to the-best of the undersigned's personal knowledge or information and belief. To the extent that the Complaint is based on information provided to the undersigned by counsel, the undersigned has relied upon counsel in taking this verification. This verification is made subject to the penalties of 28 Pa. C.S. § 4904 relating to unsworn falsification to authorities. TRI-STATE TRAILER LEASING, INC. Title: ~~'°' DATED: T ~~ 6 Y TuTR~ P. e:2 ._...:_ _ ... ~ ~ ._ .. ,. ~.W..v .,....._..:_._.d... __,... rJ. TRI-STATE TRAILER LEASING, INC., Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION -LAW NO.2001-05376P EAGLE FREIGHT LINES, INC., :JURY TRIAL DEMANDED Defendant CERTIFICATE OF SERVICE I, Peter F. Schuchman, Jr., Esquire, hereby certify that on Apri115, 2002, a copy of the attached Amended Complaint was served upon the following parties via First Class Mail, postage prepaid: Dale A. Betty, Esquire 3130 Center Square West 1500 Market Street Philadelphia, PA 19102 Attorney for Defendant This Certificate is madesubject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. KOZLOFF STOUDT ,-, Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 Attorneys For Defendant EXHIBIT "B" r~ ~I T R I -STATE TRAILER .LEASING INC. TRAILER LEASE AGREEMENT Tri-State Trailer Leasing, Inc., a Delaware Corporation ("Lessor") does hereby let and lease to Eaele Fceisht Lines: Inc. located at 835 Wynnewood Rd. Camo Hill PA, 1701 L,(Lesse~') and Lessee does hereby hire Prom Lessor upon the terms, covenants and conditions hereinafter stated the following described personal property ("uailers"), viz.: MAKE MODEL SERIAL NO. UN1T# OTHER PROPERTY 1999 Traihnobile Van X9016382 48-5062 J8' x 102" Spring Lessee acknowledges receipt of the trailers in good repair and working condition. 3. Lessee agrees to pay as rental the sum of $ 300.00 per unit, per 4 week billing cycle, [o be paid I S days alter the invoice date, hereafter until the completion of the lease, For a period of 6 months and the trailers have been returned in good condition. Loss or destruction of the wailers shat) not abate the rental due. Plus $200 delivery. charge.... a. Lessee shall reimburse Lessor for, or pay, any sales tax, use tax, or other tax based upon this transaction or-upon the ovmership possession, use or operation of the hailers. i. This transaction is a rental and not a sale, conditional or otherwise. Lessee does not acquire any right, title, or interestin or to these trailers. Lessee shall liave right to possession and use of ONE .trailer(s), so long as this agreement continues in effect and lessee shall not be in default in performance. "Associates Commercial Corp: has a security interest in this lease and all rights, rents and monies hereunuer and dte property listed herein:' ~. ~ Initial here: 6. Lessee will be responsible for any damage to the trailer other than normal wear and rear. Lessee shall, at its own cost and expense procure and deliver to Lessor, simultaneously with or prior to delivery to Lessee of the hailers, and keep in fidl force and effect during the entire tens oF'this Agreentrnt, a Certificate of Insurance satisfactory to Lessor as to the insw•er and as to the tbrm and amount of coverage with premiums prepaid thereon fur the term of this Agreement, protecting Lessor against all loss and damages it may sustain or suffer because of the Beath of, injury to, or damage to property of any third person as a result ot; in whole or in part the use ofdte trailers while in the custody, possession,brcontrol of Lessee with limits of $1,000,000. as to personal injury liability and $1,000,000. as to property damage liability: Single interesC liability insurance protecting lessor only may be obtained by Lessor at the expense of Lessee at a premium oP not more than $1 DO per trailer for one year or less if Lessee does not provide the liabiliq~ inswance described above, provided, however, that Lessor is not required to purchase such insurance, and unless Lessor does purchase such single interest liability insurance, Lessee's obligations to procure insurance shall not be relieved or atTected in any respect. LESSOR MAKES NO WARRANTY EXPRESSED OR 1MPLtED AS TO'fHE Fl'i'NESS, MERCHAN'fABILI'TY, DESIGN, CONDITION CAPACITY, PERFORMANCE OR ANY OTHER ASPECT OF Tl-IE TRAILERS OR THEIR MATERIALS OR WORKMANSHIP. ALL NEW TRAILERS FIAVE A LIMITED WARRANTY BY'fHE MANUFACTURER. ANY bVARRAN`i1' RFiPAIKS W'.LL BE PROVIDED THROUGH Tri-State Trailer Snles Initial here: iG,., ~ . JUL-15-1999 09 16 ~ 7RI STATE II LANC. PA. ~ 717 569 8309 R.10i14 R. 1_csscc agrees not to sell, nU or anypart olLessee's inlerost in this agreement, or any of the trailers, which azo the subject ot`thia agcemant, nor shall Lessee's performance he ass(gnabla, except upon the specific written consent of Lessor. 9. In rhp event Lc~sca mils t0 perform any of dte tentts or condition, of this Agreement at dtc time required, ar in the event Lcssec becomes insolvent, bankrupt, ar otherwise unable to perform ity obligations, Lessee 9hn11 be deemed to he in default, end Lesser shall bear the absolutrand unqualifted right to dthcr: (1) declare the balance of the ttntal payable hereunder immediately due and payable, ar (2) retake or r>_tain rho trailers without demand or legal process free of all rights oE' Lessee and Lessee heceby authorizes Lessor of itsrot its agents to enter upon the premises where the trailers ere located for the purpose of repoaaessing the same. Lessee further authorizes iLessar to place any property or goods stored in the trailers in public storage at the expense of Lessee. Lessor will notify, no cattier than ;0 days, before Le>soc takrs saline upon Lessee; l0. Leessor feserves the right to cannel this agreement on not Icss than thirty (30) days written nonce, Lessee's obligation to pay lurzher rental will cease and Lessee will pay to Lusaor all rental acertied but unpaid aitd Lessor will reRtnd to Lessee any ranavl paid in advance for any period beyond the dace of the realm oFthe trailers, l 1. Net/?Iet Lease- customer responsible for any and all maintenance to inchtde tires and brakes. Trailer must terminate with 100%tires and brakes per outgoing inspection report A per 32~~d of tread wear on rice charge will be asscysed as follows: S?6.OO/per 32~°t lorradial [fires and caps. Brakes will ba charged as a percantaga of wear from outgoing inspection report, based on 5450,00 brake job, NO MILEAGE CHARGES 12. Repairs: in the evrnt ofrepairable damage to any parr of any trsilcr, Lcssue shall remain liable _ - '. _ ', for all trsilcr rental charges even thougJt the trailer is unusable. Lessee may have the same repaired by any competntu parson; firm or corporation et lt's awn expense, or upon notice and dtllvery to Lessor, Lessor may repair said trailcrfor Lessee, using reasonable ilillgence m . ~ make said repairs or mplacemvtrt is the shortest possible time. Cassel agrees [o pay the amours[ charged by Lessor .for any material ar Inbor to mekc said repairs, Lessee agrees w promptly and timely pay all charges for repairs or msitttennncc to the leased Equipment and to suffer no lien for labor, materials; orarorsge to be fled ors[tacltod to said Equipment, Lasxor may, at iii own option, refuse to do any repair work on any traitor in time oFstrikv, or if in the _ opinion of Lessor art not advisable. Lessee shall not make, sufFcr or ptrmit any tmlawful use og handling of said ]eased Equipmgttt. Lessee shall not, without Lessor's prior written coRVrnt therdto, tuake or suti'er any changes, altetationx or improvcmrnts in ar to said leased Equipment ar [emove thetefmm a :y parts, accessories, attachments or other equipment. 13. Lessee Is not permitted to haul refuse/ garbage nor hazardous waste materials. if it is dete[trtirted that either has bred hauled during dte lease, lessee will be responsible to purchase the trailers a: purchase option ptice'docated on schedule H, 14. Delinquency Charges: For each Rental payment or other sum due hereunder which is not paid whtn due, Lcssec agr¢cs to pay Lessor a delinquency charge calculated thereon at the rite of 1- li2°/n per month for dte period of dejinquency providtd that such s delinquency charge is no[ prohibited by law otherwise at the highest rate Lessee ran legally obligate itself to pay and or Lasxor can legally collect, Cnitial here: ~_~ r _~ _ _ _ :. ,........__ .....:.w.:......... w..__....... I z16:_P 1 a ~ JUL-15-1999 09 16 ~~ ~~ TRI STATE .II LANC. PA. i4 717 569 8309 P.09i14 r ,. i i i i i aao~~ Z~ =m m =w3~x"NL~wi v, a' te m ~ ~ i . v . '~ maw c , r. , $ n.~ ~?-Z~NCU ..o .~-w `O` ro ;w z~~ ~~ ° a '~' ~,i ~' ~ ~° q ° {m~C'L p 9 , p r ie~~m -: ;; S3 i ~ ~ ~ Q y N w S ~ ~ UO G ~5 . "~~G io?~'R~~'a GA( . apm~z ~ N o°`~3°=.~3oi tit? ~. ~ . °~~ a ° 'm i N ~ ~~ m ~ o~ tip r p Z ~ ,, , pp n I Q m ~ ~ ~a ~ ~ ~ " r [ -~,~.~ ~'~ S • ' ~ o- ~ a a~;..~ ~R3 '-n ~O m~N7,m N ~ om~ a.a9 .¢~~ ,9m~ny ~ ~~ .nom nq4 j o X03 y 'Y ~" N 3 . ~ a. (]. ~ ' ° Q° m p A s 3 y o p C ~ j>n~ al s'q~ 3 ,o0 6n ° p7 ? .~ 'v H a t ~ -~ x_ y m~ 'D ~~ C ~ Y ~ mO~p i S ~ ° 1n ° ~ ~ m o m II A O N ~ c n 3 n'< °~ ~ Vl ~ C•~ ~' w Z' Q ~ rJ ~ ?~ SGr~ ~ a N -. ~ '~' ~' i? -~ c~p-a .. A ~ ~ ~~ ~ ~~ ~-1 j ~ ~ m ~ ^~ ~ a ° n n ~ -~ ~ a ... _ . -nDm ~ o _~ F -t ° ~ ~`~' m ~ e S m p r l U N n ~ z ~ „ N. .o ;, ~° ;,, -~ m - - ~ -~ • .~ ~, , ;, ~ , ,~ JUL-15-1999 09 17 TRI STATE !I LANC. PA. ~ 717 569 83,09 P.ili14 15, ~ Payment Schedule A outlines the payment schedule. This instrument contains the entire agreement between the parties and shall insure to the benefit of the bind the heirx, executors, administrators, successoe and assigns of the parties. No agreemenu, representations ar undersmndings not specifically contained herein shall be binding upon any of the putties unless reduced to writing and signed by the parties. 1N WITNESS WHEREOc, th¢ parties have executers tlus agreement this 8~" day of July 1994. Lines, Ina. re or N¢me ofisarmcrs~ip -or Cotp.) ~`//.~,, ~,r , iorized Ag~'nd if Partrrenlvp or Corp t it / Title afAuthorizad Agant 835 Wynnaw~ood Rd, C¢mp Hill, PA I7011 esseo s rasa TR1-5T T ER LEASIi\G, INC By ~ ~~~ (Signature of Authorized Agent} Lensing Manager (Title) ._.` __ 7 m"Yru, ,__~ .... ... .......~.._,_ _ ~¢HA~- _n -/ . JUL-15-1999 09 15 TRI STATE II LRNC. PR. ;' - LEASE-AGREEMENT' 1'eyment JCr1Etill16 "A" 1 7!16/9 9 $300.00 2 8/13!® 9 $300.00 3 9/10/9 9 $300.00 4 1018/9 9 6300.00 5 1115!3 9 $304.00 6 12/3/99 $300.00 7 12/31!9 8 5300.00 8 1/28100 °® 2125(00 10 3/24100 11 4/21140 12 3119/b0 13 6116/00 14 7/14!00 .. s 8/1 you 16 918/00 17 10/6100 18 11!3/00 19 12/1/00 - 20 _ 1a~z9/av 21 .. - '1/28/01 22 2123/01 23 3/23/01 a4 a/2o/o1 2s 5/1A1v1 28 8/15101. 27 7/13/01 Z8 8/10/01 7~ 9/7/01 30 10/5/01 31 11IT101 32 11/30/01 33 12128/01 34 1/25102 3s 7122/va 36 3/27102 37 38 39 40 ,~ v;" # ,t -,~IJ 717 569 8309 P.04i14 (1)1998 TIM 48' X 1A2" BPRINa RIDE VAN ~ X90183a2 TrlState Trailer Leasing Inc• By, Title: leasing, Manager ~~ Date: ~~.~~~~- 9 ~~ le Freight Utlas, Ina By: ~ TIB~: ~-,~/, /~ Dale; ~/i1 ('~lW~" -------------------------------------------•I- .IUL-13^1959 19 27 TRI-STRTE TRRILER SRLES 412 779 4D1D P.03 i G 8 ~ N ~ 'a R ~bo~~- Q~ {"' 4 '~ ,`~ T m u7 ~qJe r~ :.71 N N E 0 i Q y a a a 6 U C ~ `~ ~ , `~ m r \~ ~v \-AVM •~ ~: L /V vG __ m i J Q w of :...,:. ~- ~ ffiEaF.~,'I'~iB ,~: .~:1~3~ririNsx ~.'~ ~ks.!.n.aw~k'~nra ~.. ...a:. _ ;:.: ,../. ~ ~.._~ ` ~ C_ 1 t3 iff _.. -. , j __ _ ..a~ i'_, 4t"1 ` _.,, ' _ _ -,_ ,. ~ " "t i _ ` C. . ., .. i -s_ l fJ -< ~~~ Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215)972-8065 TRI-STATE TRAILER LEASING, INC. v. EAGLE FREIGHT LINES. INC. AND NOW, this day of 2002 upon consideration of the preliminary objections of defendant Eagle Freight Lines, Inc. and any response thereto, it i5 hereby ORDERED that the Preliminary Objections are sustained as follows: 1. Count Two of Plaintiff s Complaint is stricken; 2. Count Three of Plaintiffs Complaint is stricken; 3. In the alternative, Count Two, paragraph 21 § (d), (e), (f), (g) and (h) are stricken. BY THE COURT: Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P ORDER J. 1 .. .,. ...... _ .... . , _ ,__ -t.- ..,-.,,~tl. ...~'a. Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215)972-8065 TRI-STATE TRAILER LEASING, INC. v. EAGLE FREIGHT LINES. INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.2001-05376P PRELIMINARY OBJECTIONS OF DEFENDANT EAGLE FREIGHT LINES, INC., TO PLAINTIFF'S COMPLAINT PURSUANT TO Pa.RC.P. 1028(a)(2), (3) and (4) IN THE NATURE OF A MOTION TO STRIKE AND AS A DEMURRER 1. Plaintiff, Tri-State Trailer Leasing, Inc., (Tri-State) instituted the present action by Writ of Summons. On March 18, 2002, the Complaint was filed and defendant, Eagle Freight Lines, Inc., (Eagle) was served the same day. A copy of Plaintiff's Complaint is attached hereto, incorporated herein by reference and marked Exhibit "A". 2. Plaintiff Tri-State and defendant Eagle entered into a contract for the lease/rental of plaintifF s traihnobile trailer (trailer). A copy of the contract/lease agreement is attached hereto, incorporated herein by reference and marked Exhibit "B". 3. Pursuant to the provisions of the lease agreement, Tri-State has claimed money damages for breach of contract, Count One, for defendant Eagle returning the trailer in a damaged condition; a corresponding negligence claim, Count Two and a punitive damage claim, Count Three. A. Pa.R.C.P. 1028(a)(2) permits preliminary objections for, among other things, a failure of a pleading to conform to law, §1028(a)(3) permits preliminary objections for insufficient specifically in a pleading whereas § 1028(a)(4) allows preliminary objections for legal insufficiency of a pleading. 5. Pa.R.C.P. 1019(a) requires a pleading to contain material facts on which a cause of action is based. MOTION TO STRIKE/DEMURRER Factual and legal insufficiency to support claim of Negligence -Count II: 6. Plaintiff's Complaint, Count Two, alleges that defendant Eagle's conduct was negligent and breached its duty of reasonable care to plaintiff in its possession and use of the trailer during the term of the contractual lease agreement. 7. The rights, duties and remedies of the parties is as set forth in the contract, Exhibit "B", thus Tri-State's claim is based on a breach of contract. 8. Plaintiff Tri-State's claim for negligence is a tort action and basically is a duplicate claim for the underlying breach of contract action. 9. Plaintiff's claim for negligence is set forth in paragraph 21, Count Two, breached the duty of care as follows: (a) hauling improper materials; (b) improperly hauling materials that it knew or should have known could leak and contaminate the trailer; (c) hauling materials in such a way so as to increase the risk of harm that they would leak and contaminate the trailer; (d) hauling materials in violation of applicable statutes, ordinances, codes or other v regulations; (e) being inattentive; (f) failing to act with due care for the rights of Tri-State upon the termination of the lease agreement; (g) failing to take appropriate steps to ensure that the materials hauled in the trailer did not leak or otherwise contaminate the trailer; (h) being otherwise cazeless and negligent as further discovery and investigation may reveal. 10. Tort action cannot be maintained when it, in effect, duplicates the primary claim of breach of contract, thus the tort claim is barred by the "gist of the action" doctrine since it is legally insufficient being a negligent performance of contractual duties. 11. The economic losses alleged in the tort negligence claim is identical to the economic losses alleged in the breach of contract claim and since the "gist of the action" doctrine cannot be evaded by the mere expedient of pleading the negligence acts when plaintiff's claim is premised on the terms of contractual conditions, the negligent claim is legally insufficient. WHEREFORE, Defendant Eagle requests the Court to strike/dismiss Count Two of plaintiff s Complaint for being legally insufficient pursuant to Pa.R.C.P. 1028(a)(4). 12. In addition, Count Two, paragraph 21, subsections (d) to (h) of plaintiff's Complaint are "catch-all" conclusions which are conclusionary averments that are impermissibly vague, thus they are factually and legally insufficient, specifically for failure to confirm to rule of law, Pa.R.C.P. 1028(a)(2) and lack sufficient specificity, §1028(a)(3). 13. The aforementioned impermissively vague conclusionary averments fail to confirm to rule of law, lack sufficient specificity and do not comply with the requirements of Pa. R.C.P. i 1019(a). WHEREFORE, Defendant Eagle requests the Court to strike paragraphs 21 (d) to (h) of Count Two of plaintiff s Complaint for failing to comply with the requirements of Pa.R.C.P. 1028(a)(2) and (3). MOTION TO 5TR1KE/DEMURRER Factual and legal insufficiency to support claim of punitive damages -Count ffi: 14. Plaintiff Tri-State's Complaint, Count One, sets forth the basis of its claim, a private contract, Exhibit "B", whose terms define the obligations of plaintiff Tri-State and defendant Eagle. 15. Count Three of Plaintiff s Complaint requests punitive damages which fails to state a claim upon which relief can be granted since punitive damages cannot be recovered merely for a breach of contract. 16. Count Three of Plaintiff s Complaint requests punitive damages without asserting any facts of outrageous conduct of defendant Eagle and the general averments are conclusionary in nature and do not set forth with the required particularity the factual allegations that would show and/or infer that defendant Eagle acted with a malicious, willful state of mind. 17. Count Three of Plaintiff s Complaint requests punitive damages without asserting any facts of any duty imposed by society that defendant Eagle may have breached in addition to the rights, duties and obligations of the contract between the parties. j~ 18. Pa.R.C.P. 1019(a) provides that the Complaint shall set forth material facts in support of plaintiff s claim and in this instance punitive damages. i 19. The assertions in Count Three of Plaintiff s Complaint are factually and legally ~I I~ Y _.. .. __. .. u ~~,~~ _ . '",,', insufficient and cleazly do not establish the outrageous conduct necessary to support a claim for punitive damages. 20. Specific assertions in Count Three of Plaintiffs Complaint are as follows: 23. Eagle Freight, by using the trailer for improper purposes or using improper methodologies as aforesaid, and returning the trailer in a condition damaged and unuseable to Tri-State, has deprived Tri-State of its rights of ownership and use of the trailer. 24. Eagle Freight's return of the trailer in such a damaged and unuseable condition constitutes an outrageous indifference to the rights of Tri-State in its trailer. 25. Eagle Freight's deliberate and/or indifferent violation of the rights of Tri-State is evil and outrageous so as to warrant an award of punitive damages in favor of Tri-State and against Eagle Freight. 21. The aforementioned assertions in Count Three of Plaintiff s Complaint are conclusionary in nature and do not set forth with the required particularity the factual allegations that would show and/or infer that any acts of defendant Eagle were outrageous and done with a malicious intent or a willful state of mind. WHEREFORE, Defendant Eagle requests the Court to strike/dismiss Count Three of plaintiff s Complaint for failing to comply with the requirements of Pa.R.C.P. 1028(a)(3) and (4). MOTION TO STRIKE/DEMURRER Legal Insufficiency to support claim of punitive damages for breach of mere contractual duties -Count ffi: 22. Plaintiff's claim against defendant Eagle arises from an alleged breach of contract. 23. Plaintiff's Complaint Counts One, Two and Three fail to state a claim upon which a cause of action would be founded on a breach of a duty imposed by social policy since plaintiffs claim rises from an alleged breach of the contract between the parties. Exlribit "B". 24. Plaintiff s claim for punitive damages is legally insufficient since punitive damages will not be assessed for a breach of mere contractual duties. Daniels Adams Associates v. Rimbach Pub. Inc., Pa. Super., 429 A.2d 726 (1981). 25. Plaintiff s claim for punitive damages is insufficient since the alleged tortious acts are duplicate assertions for plaintiff s claim for breach of contract and there can be no recovery where the only alleged tortious act was a breach of contract. Standard Pie Line Coatis Co v. Solomon and Teslovich, 496 A.2d 840 (Pa. Super. 1985). WHEREFORE, Defendant Eagle requests the Court strike/dismiss Count Three of plaintiff s Complaint for failure to comply with the requirements of Pa.R.C.P. 1028(a)(3) and (4). JACK EMAS & ASSOCIATES -----~ BY: ~*- set ~'"'~'G! DALE A. BETTY ~ VERIFICATION DALE A. BETTY, ESQiJIRE states that he is the attorney for the Defendant in the above matter; that the facts set forth in the foregoing PRELIMINARY' OBJECTIONS are true and correct to the best of his knowledge, information and belief and that this statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DALE A. BETTY u Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972-8065 TRI-STATE TRAILER LEASING, INC. v. EAGLE FREIGHT LINES. INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of defendant's Eagle Freight Lines, Inc.'s Prelnninary Objections was served on the following by United States first class mail postage i5 prepaid on the a9 day of ~9RGM ~ 2002 to the parties listed below: Peter F. Schuchman, Jr., Esquire 2640 Westview Drive P.O. Box 6286 Wyomissing, PA 19610 JACK EMAS & ASSOCIATES BY: ~Qwc.c.~ ~' ~~ DALE A. BETTY EXHIBIT °'A" KOZLOFF ST'OUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 TRI-STATE TRAILER LEASING,-INC., Plaintiff vs. EAGLE FREIGHT LINES, INC., Defendant Attorneys for Plaintiff ~-~ ~~ - IN THE COURT OF COMMON PlS Q~' CUMBERLAND COUNTY, PA ~ =~' CIVIL ACTION -LAW ~~' `~' N0.2001-05376P '_' ` ' - - - - JURY TRIAL DEMANDED y =~~ .> _< <~- -~ COMPLAINT NOTICE TO DEFEND TO: Eagle Freight Lines, Inc. 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 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 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. Lawyers' Referral Service of the Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 (800)990-9108 `~ , 1A 1. The Plaintiff is Tri-State Trailer Leasing, Inc., (hereinafter "Tri-State') a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 3111 Grand Avenue, Neville Island, Allegheny County, Pennsylvania 15225. 2. The Defendant is Eagle Freight Lines, Inc., (hereinafter "Eagle Freight") a corporation believed to be organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 835 Wynnewood Road, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Tri-State and Eagle Freight are parties to a Lease Agreement dated July 8, 1999, (hereinafter "Lease Agreement") for the rental of a 1999 Trailmobile trailer, (hereinafter "Trailer') VIN X9016382. A copy of the Lease Agreement is attached hereto as Exhibit "A" and its contents are incorporated by reference herein as fully as though the- same were set forth at length. 4. The Lease Agreement contains among others, the following material terms a. Lessee agrees to pay as rental the sum of 00.00 per unit, per 4 week billing cycle, to be paid 15 days after the invoice date, hereafter until the completion of the lease, for a period of 6 months and the trailers have been returned in good condition. Loss or destruction of the trailers shall not abate the rental due. Plus $200 delivery charge. b. Lessee will be responsible for any damage to the trailer other than normal wear and tear. Lessee shall, at its own costs and expense procure and -deliver to Lessor, simultaneously with or prior to delivery to Lessee of the trailers, and keep in full force and effect during the entire term of this Agreement, a Certificate of Insurance satisfactory to Lessor as to the insurer and as to the form and amount of coverage with premiums prepaid thereon for the term of this Agreement, protecting Lessor against all loss and damages it may sustain or suffer because of the death of, injury to, or damage to property of any third person as a result of, in whole or in part, the use of the trailers while in the custody, possession, or control of Lessee with limits of $1,000,000. As to personal injury liability and $1,000,000. As to property damage liability. Single interest liability insurance protecting lessor only may be obtained by Lessor at the expenses of Lessee at a premium of not more than $100 per trailer for one year or less if Lessee does not provide the liability insurance described above, provided however, that Lessor is not required to purchase such insurance, and unless Lessor does purchase such single interest liability insurance, Lessee's obligations to procure insurance shall not be relieved or affect in any respect. c. Net/Net Lease -customer responsible for any and all maintenance to include tires and brakes. Trailer must terminate with 100% tires and brakes-per outgoing inspection report. A per 32na of tread wear on tire charge will be assessed as follows: $26.00/ per 32"d for radial tires and caps. Brakes will be charged as a percentage of wear from outgoing inspection report, based on $450.00 brake job. NO MILEAGE CHARGES. d. Lessee is not permitted to haul refuse/garbage nor hazardous waste materials. If it is determined that either has been hauled during the lease, lessee will be ;responsible to purchase the trailers at purchase option price located on schedule B. e. Delinquency Charges: For each Rental payment or other-sum due hereunder which is not paid when due, Lessee agrees to pay Lessor a delinquency charge calculated thereon at the rate of 1-1/2°!° per month for a period of delinquency provided that such a delinquency charge is not prohibited by law otherwise at the highest rate Lessee can legally obligate itself to pay and or Lessor canlegally collect. 5. Eagle Freight made payments n1 connection with the Lease Agreement through the 4 week billing cycle ending on or about April 20, 2001. i 6. On or about that date, Eagle Freight returned the Trailer to the premises of Tri-State Trailer Sales, Inc. in Lancaster County, Pennsylvania. 7. At the time Eagle Freight returned the Trailer, it was in a defective, damaged and unusable condition due to the fact that it had obviously been used to haul used or discarded batteries, the acid from which leaked and contaminated the Trailer. 8. The fixes for the Trailer had also been worn by 24/32"a of an inch at a unit price of $26.00 per 32"a 9. The purchase price for the Trailer as set forth in the Lease Agreement is $16,803.00. 10. Rent for the Trailer continues to accrue at the rate of $300 per four week billing cycle until such time as Eagle Freight purchases the Trailer. 11. Tri-State issued to Eagle Freight numerous invoices representing ongoing rent charges, fire wear charges and the purchase price of the Trailer. 12. To date, Eagle Freight has failed and/or refused to pay the amount of the aforesaid invoices or any part thereof. 13. Tri-State has received an estimate of the costs to dispose of the Trailer in the amount of $970.00. 14. The charges imposed in connection with the aforesaid invoices are necessary, fair and reasonable and moreover are charges that Eagle Freight agreed to pay in connection with the Lease Agreement. s COUNTI BREACH OF CONTRACT 15. Plaintiffs incorporate by reference herein the contents of paragraphs one through fourteen inclusive, of this Complaint as fully as though the same were set forth at length. 16. Eagle Freight's return of the trailer before the expiration of the Lease Agreement- and in a defective, contaminated and unusable condition constitutes a material breach of the Lease Agreement. 17, As a direct and proximate result of the terms of the Lease Agreement, Tri- State has suffered damages in the amount of $20,834.50 through November 4, 2001, will continue to suffer ongoing damages for unpaid rent at the rate of $300.00-per four (4) week billing cycle and disposal charges of $970.00. 18. -Tri-State has fulfilled all conditions precedent to its recovery under the terms of the Lease Agreement. Wl-IEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $20,834.50, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. f!; COUNT II NEGLIGENCE 19. Plaintiffs incorporate by reference herein the contents of paragraphs one through eighteen inclusive, of this Complaint as fully as though the same were set forth at length. 20. Eagle Freight owed a duty of reasonable care to Tri-State in its possession and use of the Trailer during the term of the Lease Agreement. 21. ,Eagle Freight breached that duty of care in at least the following respects: a. Hauling improper materials; b. Improperly hauling materials that it knew or should have known could leak and contaminate the Trailer; c: Hauling materials in such a way so as to increase the risk of harm that they would leak and contaminate the trailer; d. Hauling materials in violation of applicable statutes, ordinances, codes or other regulations; e. Being inattentive; f. Failing to act with due regard for the rights of Tri-State upon the termination of the Lease Agreement; g. Failing to take appropriate steps to ensure that the materials hauled in the Trailer did not leak or otherwise contaminate the trailer; h. Being otherwise careless and negligent as further discovery and investigation may reveal. F 21. As a direct and proximate result of the negligence of Eagle Freight as aforesaid, Tri-State has sustained the damages set forth at length hereinabove. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount not in excess of $50,000.00, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT III CON VERSION 22. Plaintiffs incorporate by reference herein the contents of paragraphs one through twenty-one inclusive, of this Complaint as fully as though the same were set forth at length. 23. Eagle Freight, by using the trailer for improper purposes or using improper methodologies as aforesaid, and returning the trailer in a condition damaged and unusable to Tri-State, has deprived Tri-State of its rights of ownership and use of the Trailer. 24. Eagle Freight's return of the Trailer in such a damaged an unusable condition constitutes an outrageous indifference to the rights of Tri-State in its Trailer. 25. Eagle Freight's deliberate and or indifferent violation of the rights of Tri- State is evil and outrageous so as to warrant an award of punitive damages in favor of Tri-State and against Eagle Freight. t ~ E ~~~ WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. KOZLOFF STOUDT F. 5'chuchman, Jr., Attorney ID# 69343 Attorney for Plaintiff Dated: ~' ~~"~. VERIFICATION The undersigned, having read the attached Complaint, hereby verifies that all averments of fact not appearing of record contained in the attached complaint are true and correct fo the best cf tl~,e undersigned's personal knowledb.: or infcrmation and belief. To the extent that the Complaint is based on information provided to the undersigned by counsel, the undersigned has relied upon counsel .in taking this verification. This verification is made subject to the penalties of 28 Pa. C.S. § 4904 relating to unsworn falsification to authorities. TRI-STATE TRAILER LEASING, INC. B _- r G~~ r Title: ` -i1~'¢-"`~L2-'`~-f DATED: ~ ~ /~ , KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610)670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff vs. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-05376P JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter F. Schuchman, Jr., Esquire, hereby certify that on March ~, 2002, a copy of the attached Complaint was served upon the following parties via First Class Mail, postage prepaid: Eagle Freight Lines, Inc. Attn: Earl Mumma, Jr., President 835 Wynnewood Road Camp Hill, PA 17011 This Certificate is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. KOZLOFF STOUDT r'.~~ ) ~ ? \~--, Peter F. Schuchman, Jr., Esquire - Attorney ID No. 69343 EXHIBIT "B" i~~ T R I -STATE TRAILER LEASING INC. TRAILER LEASE AGREEMENT Tri-Smte Trailer Leasirjg, Inc., a Delaware Corporation ("Lessor") does hereby let and lease to Eaele Fneiaht Lines: Inc. located at 835 Wvnnewood Rd. Camp Hill PA. 17011 (Lessee") and Lessee dyes hereby hire from Lessor upon the terms, covenants and conditions hereinafter stated the following described personal property ("wailers`), viz.: MAKE MODEL SERIAL NO. UNIT# OTHER PROPERTY 199) Trailmobile Van X9016382 48-5062 48' x 102" Spring Lessee acknow{edges receipt of the trailers in good repair and working condition. 3. Lessee agrees• to pay as rental the sum of$ 300.00 per unit, per 4 week billing cycle, [o be paid I S days after the invoice date, hereafter until the completion of the lease, For a period of 6 months and the trailers have been returned in good condition. Loss or desn•uction of [he trailers shall not abate the rental due. Plus $200 delivery charge. .. 4. Lessee shall reimburse Lessor tor, or pay, any sales tax, use tax, or other tax based upon this transaction or upon the ownership possession, use or operation of the trailers. >. 'this transaction is a rental and not a safe, conditional or otherwise. Lessee does not acquire any right, title, or interest is or to these trailers. Lessee shall haveright to possession and use of ONE trailer(s), so long as this agreement continues in effect and lessee shall not be in deFudt in performance. "Associates Commercial Corp: has a security interest in this lease and all rights, rents and monies hereunuer and the property listed herein:' ;: - liiitial here: ~~ 6. Lessee will be responsible for any damage to the trailer other than normal wear and tear. Lessee shall, at its owu cost and expense procw•e and deliver to Lessor, simultaneously with or prior to delivery ro Lessee of the trailers, and keep in full force and eti8ct during the entire teen of this Agreement, a Certificate of Insurance satisfactory to Lessor as to the insurer and as to the Form and amount of coverage with premiums prepaid thereon for the term of this Agreement, protecting Lessor against all loss and damages it may sustain or suffer because of the death ot; injury to. or damage to property of any third person as a result ot; in whole or in part, the use ofthe h•ailerswhile in the custody, possession, or control of Lessee with limits of $LOOOA00. as to personal injury liability and $1,000,000. as to property damage liability: Single interest liability insurance protecting lessor only may be obtained by Lessor at the expense of Lessee at a premiwn of not more than $100 per trailer for one year or less if Lessee does not provide the liability insurance described above. provided, however, that Lessor is not required to purchase such insurance, and unless Lessor does purchase such single interest liability insurance, Lessee's obligations to procure insurance shall not be relieved or affected in any respect. - LESSOR NlAKES NO WARRANTY EXPRESSED OR IMPLIED AS TO THE FITNESS, MERCHANTABILITY, DESIGN, CONDITION CAPACITY, PERFORMANCE OR ANY OTHER ASPECT OP ThIE TRAILERS OR TI-IEIR MATERIALS OR WORKMANSHIP. ALL NEW TRAILERS FIAVE A LIMITED WARRANTY BY THE MANUFACTURER. ANY WARRAN"1'l' REiPAIRS W.LL BE PROVIDED THROUGH Tri-State `frailer Sales initial here: ---- ~! I' ~~ T!JL-15-1999 09116 I TRI STRTE II LRNC. PR. ~ 717 569 8309 P. 10/14 R. 1_cssce egrets not to sell, all or any part aF Lessee's interest in this agtccmt:nt. or any of the trailers, which era the subject of this ageemont, nor sholl Lassae's performance be essfgnable, except upon [he specific written consent of Lexsor. ty 9. In the event Lc;sea fails to perform any of the eentts or condition; of thin Agreement at the time iequlred, or in the event Lcssec becomes insolvent, bankrupt, or otherHise unable to perform its obligations, Lessee shall be deemed to he in defnulr, end Lessor shall bear the absolute and unqualified right to either: (I) declare the balance ol'the cancel payable hereunder iznmediatety due and payable, or (2) rcralte or retain the trailers without demand or legal process free of all righb of Lessee and Lessee hereby authorizes Lossor or iu or its agents to rnter upon the premises whore the trailers arc located for' tree purpose of repoaaessing the same. Lessee further authorizes Lessor to place any property or goods stored in the trailers in public storage at the expense of Lessee. Lessor will notify, no earlier than 30 days, before Lexsor takus ac[ion upon Lessee. 1 G. Lessor reserves the right to cancel this agreement on not Icss Than thirty (30} days written notce, Lcascc's obligation to pay funkier renwl will cease and Lessee will pay to Lossor all recital acerned but unpaid and Lessor will rethnd m Lessee any rental paid in advance for any period beyond the dare of the ream of the trailers, ] 1, NetlYet Lease- customer responsible for any acid all maintenance to inelttdo tires and brakes. Trailer must terminate wl[h l00%tirex and brakca per outgoing inspection report A per 32~~d of tread wear on tics charge will bo assessed as follows: S?6:OO/per ~2~W for iadial [fires and caps. Brakes wiU ba charged as a percentage of wear from ourgaing inspection ' capon, based on 5450,00 brake job, NO MILEAGE CHARGES t 2. Repairs: In rho evrnt ofrepairablc damage to any pats of any [rsilcr, Lcssec shall remain liable _ .. for all trsiler rental charges evaa [hough the trailer is unusable. Lcssec may have [be carpe repaired by any eompetetu person, hrr[r or corporation at it's own expense, or upon notice and • delivery to Lossor, Lossor tray repair xaid trailer for Lessor, using reazonable diligence to make said repairs or roplaremrmt in the ahonest po;;ible time. Les3ae agrees [o pay Che amount charged by Lessor kr any material or labor to make said repairs, Lessee agrees w promptly and timely pay all charges for repairs or rnsuttenance to the leased Equipment and m suffer no lien for labor, marorials; tic storage to be Clcd or sttaclmd to said Equipment, Lessor may, at firs own option, refuse w do any repair work on any trailer in time ofstrike, or if in the opinion of Lessor art not advisable. Lessee shall not make, xutTct or permit any ttaLzwful use or handling of said leased Equipment. Lessee shall not without Lessor's prior written consent thereto, make or suffer any chanttos, alterations or improvement; in or to said leased Equipment or remove therefrom a.;y parts, accessories, attachmcnti or other equipment. l3, Lessee is not penrtitted to haul refusal garbage nor haaardous was[c materials. if i[ is deteratined char either has been hauled dtuing dte lease, lessee will be responsible to purchase the rrailerx a: purchase dption price located on schedule 8. ]4. Delinquency Charges: For each Rental payment or other sum due hereunder which is not paid whin due, Lessee agrees to pay Lessor a delinquency charge calculated thereon at the rate of 1- 1~2°ln per month-for the period of delinquency provided that such s delinquency cFrargo 1s not prohibited by law odserwise at the hishest rare i,essee can legally oblieate itself to pay and or Lessor can legal]y collect. initial here: ~~ ,. ,mow. .~ .. i.._. JIIL-15-1999 0916 q) '~ TRI STRTE II LANC. PA. 717 569 8309 P.09i14 ~~ .., i •t ~ ~ - C, i!. ' IIa 4 2 g iZmC~Q p .S ,v N~2~oa ~~ O . 0 o_ ~w3 ° c o ~p y y Z o~ w ~ o ~ ~" ~ m 9.. ~-1 ' .j D ~ G 5.~ w- H ° .a . - ,5 z~n~m °~-"~ __ _ °~°fi A '~-, l/i i J rG is ~""'n ~~.. a_,.~ 0. ~ ~pgz'L - ~~m° vy3o~v. r ~rmn.~~ ~'3F .m o- ~Y N~n acsa~ ~_m~m 0 ~-~nzrn m rsa3 , .Q ~~ - - m~~b ~~~R ao°g~N a ' dj=zv m ° g a ~ ° v m a; $°~ m a m AAD~ ~w, , ~ o ° p p ~ c Q °'~° S Q p~ •OQ c •~ rv O -- K O,u„•-•w S{~~•~ ~ Qaqv Tj^ ~ 00 2 m ~ -i Z+ ~ a ~ fr ° ~ W 7~ •a { u v < ~ ~ w C •~ D ~ n ~ ym~ 9 ~ h~ _~G O '° O~ °'O ~ ~ N x ~ ~ ° i ~ o m Q~ 0 0 o .F m 3 A Q ~ ~ ~ ~ ~ a~ o c ?, w2p30 ~Ny~ `6~y o° m p ~• -:nDrn-n °~~ w •f ~ cn 3c 7 ~ ~ - g w x m ~r~~ ~_3°~ ~ y 7.7 Z y ~ '~ u m ti m Y ~ . -' ~ m ^' i i i ~' !~ JUL-15-1999 09 17 ~' TRI STATE II LANC. PR. 717 569 8309 P.ili14 I5. Payment Schedule A outlines the payment schedule. This instrument eonteins [he en[ire agreement between the parties end shall insure to dte benefit of the bind the heus, txtcutors, administrators, successor and assigns of the parries, No agreements, representations or undersmndings not specifically contained herein ahall be binding upon any of the patties unless reduced to writing and signed by the parries. IN WITNESS WHEREOi•, the panics have executed tlug npreemettt [his &b day of July 1999. Inc. or amt o artriczy rp or Carp.) az Corp.) Title of Autharixad Agent 835 Wynnewood Rd, Camp ffiq, PA 17017 asses s rtss TRi-5T T t~~~. ER LEAS1i\G,1NC By i%~ ~ (Signature ofAurhorized Agen[) Leasing Manager (Title) i -.~ JUL-15-1999 09 15 ' TRI STATE II LANC. PA. 717 569 8369 P.04/14 I.EA3E-AGREEMENT Payment ScHedule "A" ,• .. .. , 1 7116/99 $300.00 2 H/13!®9 $300,00 3 9/10/99 $300.00 a 1o/el9s 6300.00 5 1115!99 $300.00 6 1213/99 5300.00 ? 12/31!88 $3D0.00 H 1/28!00 ~D 2125100 10 3/2alOD 11 4/21!00 12 3119/00 13 6116/00 14 7/14/00 s 811 you 16 9/8/00 17 10/6/00 18 11!3100 19 1211!00 20 .. 12/28/00 21 ~ ~ 1/28!01 22 2/23101 23 3!23/01 24 arzaol 25 5/1 A/01 26 6/i51D1 27 7/13/01 28 B/10/01 ?~ 9/7/01 3D 10/5/01 31 1112!01 32 11!30/01 33 17/28/01 34 1/25102 35 2122/02 36 .3/22/02 37 38 39 40 E4ulamdltL' (111988 T1M 4B' X 102" BPRfNfl RIDE VAN Vin #'s X9018382 Ttj~9tate Trailer Le/acing, Ina• BY: c'~ .~C.ti.-~f Titte: leasing Mana er Date: ~ ~~ ~~ le Freight Linas, Inc. By: L ~~l Date: /f~i~C~C' s ~"„ 1 I JUL-13-1999 17:27 TR!-STATE TRRILER SALES 412 777 4plp P.03 ~ N N N h Q ~ a O_ ~a~~_ m,-4 ~- yy~ '- r7S ~cL h ~~ O C 6 N r P Q r C a U ~v ,~ _~ .m - ~ ~ ~ E O `r T ~ ~ ' ~ lD j., ~ U C ` ~ \M m r_ ~`~4 Iv ~: ~sdi n - ~,- -~ -n ~. _ ' -- -. ~ ' `~ - . ., - - ~~a , ~S KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610)670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff vs. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-05376P JURY TRIAL DEMANDED COMPLAINT NOTICE TO DEFEND TO: Eagle Freight Lines, Inc. 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 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 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. Lawyers' Referral Service of the Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 (800) 990-9108 1. The Plaintiff is Tri-State Trailer Leasing, Inc., (hereinafter "Tri-State') a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 3111 Grand Avenue, Neville Island, Allegheny County, Pennsylvania 15225. 2. The Defendant is Eagle Freight Lines, Inc., (hereinafter "Eagle Freight") a corporation believed to be organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 835 Wynnewood Road, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Tri-State and Eagle Freight are parties to a Lease Agreement dated July 8, 1999, (hereinafter "Lease Agreement") for the rental of a 1999 Trailmobile trailer, (hereinafter "Trailer') VIN X9016382. A copy of the Lease Agreement is attached hereto as Exhibit "A" and its contents are incorporated by reference herein as fully as though the same were set forth at length. 4. The Lease Agreement contains among others, the following material terms a. Lessee agrees to pay as rental the sum of 00.00 per unit, per 4 week billing cycle, to be paid 15 days after the invoice date, hereafter until the completion of the lease, for a period of 6 months and the trailers have been returned in good condition. Loss or destruction of the trailers shall not abate the rental due. Plus $200 delivery charge. b. Lessee will be responsible for any damage to the trailer other than normal wear and tear. Lessee shall, at its own costs and expense procure and deliver to Lessor, simultaneously with or prior to delivery to Lessee of the trailers, and keep in full force and effect during the entire term of this Agreement, a Certificate of Insurance satisfactory to Lessor as to the insurer and as to the form and 2 v _ _ a __. .. ~ : ~u, .» ...y~~ amount of coverage with premiums prepaid thereon for the term of this Agreement, protecting Lessor against all loss and damages it may sustain or suffer because of the death of, injury to, or damage to property of any third person as a result of, in whole or in part, the use of the trailers while in the custody, possession, or control of Lessee with limits of $1,000,000. As to personal injury liability and $1,000,000. As to property damage liability. Single interest liability insurance protecting lessor only may be obtained by Lessor at the expenses of Lessee at a premium of not more than $100 per trailer for one year or less if Lessee does not provide the liability insurance described above, provided however, that Lessor is not required to purchase such insurance, and unless Lessor does purchase such single interest liability insurance, Lessee's obligations to procure insurance shall not be relieved or affect in any respect. c. Net/ Net Lease -customer responsible for any and all maintenance to include tires and brakes. Trailer must terminate with 100% tires and brakes per outgoing inspection report. A per 32"d of tread wear on tire charge will be assessed as follows: $26.00/per 32"d for radial tires and caps. Brakes will be charged as a percentage of wear from outgoing inspection report, based on $450.00 brake job. NO MILEAGE CHARGES. d. Lessee is not permitted to haul refuse/garbage nor hazardous waste materials. If it is determined that either has been hauled during the lease, lessee will be responsible to purchase the trailers at purchase option price located on schedule B. e. Delinquency Charges: For each Rental payment or other sum due hereunder which is not paid when due, Lessee agrees to pay Lessor a delinquency charge calculated thereon at the rate of 1-1/2% per month for a period of delinquency provided that such a delinquency charge is not prohibited by law otherwise at the highest rate Lessee can legally obligate itself to pay and or Lessor can legally collect. 5. Eagle Freight made payments in connection with the Lease Agreement through the 4 week billing cycle ending on or about Apri120, 2001. 3 ~~ 6. On or about that date, Eagle Freight returned the Trailer to the premises of Tri-State Trailer Sales, Inc. in Lancaster County, Pennsylvania. 7. At the time Eagle Freight returned the Trailer, it was in a defective, damaged and unusable condition due to the fact that it had obviously been used to haul used or discarded batteries, the acid from which leaked and contaminated the Trailer. 8. The tires for the Trailer had also been worn by 24/32"a of an inch at a unit price of $26.00 per 32"a 9. The purchase price for the Trailer as set forth in the Lease Agreement is $16,803.00. 10. Rent for the Trailer continues to accrue at the rate of $300 per four week billing cycle until such time as Eagle Freight purchases the Trailer. 11. Tri-State issued to Eagle Freight numerous invoices representing ongoing rent charges, tire wear charges and the purchase price of the Trailer. 12. To date, Eagle Freight has failed and/ or refused to pay the amount of the aforesaid invoices or any part thereof. 13. Tri-State has received an estimate of the costs to dispose of the Trailer in the amount of $970.00. 14. The charges imposed in connection with the aforesaid invoices are necessary, fair and reasonable and moreover are charges that Eagle Freight agreed to pay in connection with the Lease Agreement. COUNTI BREACH OF CONTRACT 15. Plaintiffs incorporate by reference herein the contents of paragraphs one through fourteen inclusive, of this Complaint as fully as though the same were set forth at length. 16. Eagle Freight's, return of the trailer before the expiration of the Lease Agreement and in a defective, contaminated and unusable condition constitutes a material breach of the Lease Agreement. 17. As a direct and proximate result of the terms of the Lease Agreement, Tri- State has suffered damages in the amount of $20,834.50 through November 4, 2001, will continue to suffer ongoing damages for unpaid rent at the rate of $300.00 per four (4) week billing cycle and disposal charges of $970.00. 18. Tri-State has fulfilled all conditions precedent to its recovery under the terms of the Lease Agreement. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $20,834.50, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. 5 COUNTII NEGLIGENCE 19. Plaintiffs incorporate by reference herein the contents of paragraphs one through eighteen inclusive, of this Complaint as fully as though the same were set forth at length. 20. Eagle Freight owed a duty of reasonable care to Tri-State in its possession and use of the Trailer during the term of the Lease Agreement. 21. Eagle Freight breached that duty of care in at least the following respects: a. Hauling improper materials; b. Improperly hauling materials that it knew or should have known could leak and contaminate the Trailer; c. Hauling materials in such a way so as to increase the risk of harm that they would leak and contaminate the trailer; d. Hauling materials in violation of applicable statutes, ordinances, codes or other regulations; e. Being inattentive; Failing to act with due regard for the rights of Tri-State upon the termination of the Lease Agreement; g. Failing to take appropriate steps to ensure that the materials hauled in the Trailer did not leak or otherwise contaminate the trailer; h. Being otherwise careless and negligent as further discovery and 6 investigation may reveal. 21. As a direct and proximate result of the negligence of Eagle Freight as aforesaid, Tri-State has sustained the damages set forth at length hereinabove. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount not in excess of $50,000.00, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT III CONVERSION 22. Plaintiffs incorporate by reference herein the contents of paragraphs one through twenty-one inclusive, of this Complaint as fully as though the same were set forth at length. 23. Eagle Freight, by using the trailer for improper purposes or using improper methodologies as aforesaid, and returning the trailer in a condition damaged and unusable to Tri-State, has deprived Tri-State of its rights of ownership and use of the Trailer. 24. Eagle Freight's return of the Trailer in such a damaged an unusable condition constitutes an outrageous indifference to the rights of Tri-State in its Trailer. 25. Eagle Freight's deliberate and or indifferent violation of the rights of Tri- State is evil and outrageous so as to warrant an award of punitive damages in favor of Tri-State and against Eagle Freight. 7 WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. Dated: ~' ~~"~. KOZLOFF STOUDT Pe er F. chuchman, Jr., Attorney ID# 69343 Attorney for Plaintiff T R I -STATE TRAILER LEASING INC. TRAILER LEASE AGREEMENT Tri-State Traila• Leasiirg. htc., a Delaware Corporation ("Lessor") does hereby let and lease to Easle Freieht Lines: Inc. located at 835 Wvmrewood Rd. Camp Hill PA, 1701 l (Lessee") and Lessee does hereby hire from Lessor upon [he terms, covenants and conditions hereinaHer stated the following described personal property ("wailers"), viz.: MAKE MODEL SERIAL NO. UNIT# OTHER PROPERTY 1999 Trnilmobile Van X9016382 48-5062 48' x 102" Spring Lessee acknowledges receipt of the wailers in good repair and working condition. 3, Lessee agrees to pay a5 rental the sum of $ 300.00 per unit, per 4 week billing cycle, to be paid I S days alRer the invoice date, hereafter until the completion of the lease, For a period of 6 months and the wailers have been returned in good condition. Loss or destruction of the trailers shall not abate the rental due. Plus $200 delivery charge. .. 4, Lessee shall reimburse Lessor tor, or pay, any sales tax, use tax, or other tax based upon this h•ansaction or upon the ownership possession, use or operation of the trailers. i. This transaction is a rental and not a sale, conditional or otherwise. Lessee does not acquire any right, title, or interest in or to these trailers. Lessee shall have right to possession and use of ONE trailer(s), so long as this agreement continues in effect and lessee shall not be in default in performance. "Associates Commercial Corp, has a security interest in this lease and all rights, rents and monies hereunuer and the property listed herein:' ,. _ liiitial here: 6. Lessee will be responsible for any damage to the trailer other than normal wear and tear. Lessee shall, at ils own cost and expense procure and deliver to Lessor, simultaneously with m' prior to delivery to Lessee of the trailers, and keep in toll force and ettect during the entire tens of this Agreement, a Certificate of Insurance satistactory to Lessor as to the insurer and as to the form and amount oFcoverage with premiums prepaid thereon for the term of this Agreement, protecting Lessor against all loss and damages it may sustain or suffer because of the death ot; injury tn, or damage to property of any third person as a result ot; in whole or in part, the use of the trailers while in the custody, possession, or control of Lessee with limits of $1,000,000. as to personal injury liability and $1,000.000. as to property damage liability. Single interest liability insurance protecting lessor only may be obtained by Lessor at the expense of Lessee at a premium of not more than $100 per trailer for one year or less if Lessee does not provide the liability insurance described above, provided, however, that Lessor is not required ro purchase such insurance, and unless Lessor does pw•chase such single interest liability insurance, Lessee's obligations to procure insurance shall not be relieved or affected in any respect. LESSOR MAKES NO WARRANTY EXPRESSED OR IMPLIED AS TO THE FITNESS, MERCHAN"fABILI'TY, DESIGN, CONDITION CAPACITY, PERFORMANCE OR ANY OTFIER ASPECT OP TFIE TRAILERS OR TI-IEIR MATERIALS OR WORKMANSHIP. ALL NEW TRAILERS HAVE A LIMITED WARRANTY BY "f1iE MANUF'ACTIJRER. ANY bVARRANT'Y' REiPAIRS W'.LL BE PROVIDED THROl1GH Tri-State "hailer Sales Initial here: ____!_ J!JL-15-1999 :09=16; 'TRI STRTE II LANC. PR. 717 569 8309 .P.10i14 A. 1_essee egrets not to sell, all or any port of Ltssee's intsrost in thin agrccmcnt, or any of the trailers, which aza the subject of thin agreement, nor shall Lessee's perfarmence be assignable, except upon the specific wri[ten consent of Lessor. 9. In the event Lcaste fails to perform any of the tcnns or conditions of this Agreement at dtc time required, or in the event Lcsscc becomes insolvent, bankrupt, or otherwie unable [o perform its obligations, Lessee shalt be deemed to he in default, and Lessor shall bear the absolute and unqualitied right to either: (l) declare the balance oi' the rental payable hereunder immediately due and payable, ar (2) rctskt or retain the trailers without demand or legal process free of alt tights of Lesste and Lessee hereby authorizes Lessor or its or its agents to rnter upon the premises where the traIIers are located for the purpose of repoadtssing the same. Lessee further authati2es Lessor to place any property or goods stored in rite trailers in public storage at the expense ofl,essee. Lessor will notify, no earlier than 30 days, before Lessor takes action upon Lesste. ~. l G. Lessor rtserves chc right rA caaatl this agrttment an oat less than thirty (30) days wri[ten notice, Lessee's obligation to pay further rental will cease and Lessee will pay to Lusaor all rental accrued but unpaid and Lessor will refltnd to Lessee any rental paid is advance for any period beyond the don of the return ofthe trailers, 1 1. Net/Net Lease-customer responsible for any and all maintenance to include tires and brakes. Trailer must tezmina[e with 100°/a tiros and brttkcs per ou[going inspection report. A per 32~~d of tread wear on rice charge will be asscyscd ae follows: S?ti.00/par 32~W for radial tires and caps. Brakes will bo chazged es a percentage of wear from ourloing inspection ' report, board on S450A0 brake job, NO MILEwGE CHARGES l2. Repairs: in the event ofrepaitablt damage to any patt of any trailer, Lesste shall rttnain liable _' ,. for all trailer rental charges even [hough the trailer is unusable. Lcssce maY have the same repaired by any competetu parson, firm or eorporarion at !t's own expense, or upon notice and • delivery to Lessor, Lessor may repair acid trailer for Lesser, using reasonable diligence m . ~ make said repairs or raplammont is the ahorest possible time, LeSSat agrees [0 pay the amount charged by Lessor far any material or labor to make said repairs, Lessee agrees to promptly and timely pay all charges for repairs ar msitt[enancc to the leased Equipment and to suffer no Lien for labor, materials, or etorage to be fled or attached to said Equipment, Lessor racy, at irs own option, refuse w do any repair work on wry trailer in time of strike, or if in the opinion of Lessor art not advisable. Lessee shall not make, sut'Fer or ptrmi[ any unlawful use or handling of said leased Equipment. Lessee shall not, without Lessor's prior written consent theieto, make or suffer any changes, alcetntions or imptovcmrnts in or to said leased Equipment or remove tlteretiom a:,y parts, accessories, attachments or other equipment. 13. Lessee Is not permitted to haul refuael garbage nor hazardous was[c materials. if it is determined that either has been hauled during dte lease, lessee will be responsible ro purchase the trailcrx at purchase option price located on schedule B. la, Delinquency Charges: Fos each Rental payment or other sum duo hereunder which is nol paid when due, Lesscc agrees to pay Lessor a delinquency charge culculsted thereto at the rate of t- 1!2°Jn pet month for the period of delinquency providtd chat such s delinquency charge is not prohtbitcd by law otherwise at the highest rare Lessee can legally oblieare itself to pay and or Lessor can legally collect, Initial here ..n,~, .TUL-15-1999 09=16 -r ~, TRI STATE II LANC. PR. Aao3r { ~ _ ~ N ~zmnQ tm~=a Aa~~z~ D 1 ~ j Y ~ ~ ~ ~ ~ <rnOrZ pA ~..y C7 n~^-i~ a m~A D rpi,ma~-r"a ra9z~ ~"rmn~ ~~vAi zm rnmOaxv .yDA_a -i a~=a~ <amzv m A A D ~ °z>aa_ _'~~~~ ~~~~~ x2'~'AG G,>~z~ 3~ ~' •~~ZS ~n~rnm Np~a°~ w .•a 'O X (a ~' 717 569.6309 P.09i14 a 3 w~ o x u' ~ v 5' T c v n 'p 3 ~ A OO „i a.C w f~m_ g 6~i !. ~ J p W O~ y 3 .~~2ao °='o^~.L J w p~ +~ ~ p~ O r ~~° min Fi ~'v a,~F°i (~' ~' ~m n A N - S ~ ~^ ~ ~ f/0 IL C J•T. -pj rG• O m ~' -' n vp, ?' v~1 ~~ ~ c o. L^ 6' ~ N ~ ~ ~ ~• U m C C VD ~ n ~~Prn° m tea. p.3 =.Q"p- Ion ~ - ~ ~ ~ R m a. fi `< N ~N~~'^"-'cm of c Q g p o ~ qaQ a 'R b o o a ~ z°<a•~o X03 c Q m n b .ns O 'O O p .C ~ &'' ~,p ~ia'+ H n R >•y~~'~ n ^ p ~' ~ ~ ~ ~ ~ ~ m c ~ c N f0 V y O rt . p , 6 Q ~ p 7 - 7. .. N 1 ' i ~sn~vv - JUt_-15-1999 09 17 •TRI STRTE II LRNC. PR. 717 569 Q309 p.iiil4 15. Payment Schedule A outHrus the payment schedule. This instrument contains the en[irn agreement between the parties and shnll insure to t1[e benefit of the bind the heirs, executors, administrators, successor and assigns of the parties. No agreemenu, representations ar understandings not specifically contained hcrcin shall be binding upon nny of the patties unless reduced to writing and slgnad by the parries. IN WI'LNESS W1iE13E0c, the parties have executed tlus agreement this 8'b day of Jdy 1999. Inc. or ame o artrcrs rp or Corp.) or Corp.) Tide of Autharized Agant 835 Wynnewood Rd. Camp Hill, PA 17011 asses s ress TRI-5'T~T~: TC~ LE~ WC aZ~..(I (Signature ofAuthorized AgenC) Leasing Manager (Title) .~" ~.._ +3 ..s:.d..w:m.m as .:... JUL-15-1999 09 15 ~ •TRI STATE II LRNC. PR. ' . 717 569 8309 P.04/14 LEA5E_-AGREEMENT Equlpmet~L• (1)1989 T!M 48' X 108" BPRINO RlpB Payment ScHedule "A" VnN :;, . Vin #'s xe016392 1 7!16/9 9 $300.00 2 8113!® 9 $300,00 3 9/10!99 5300.00 a 10/8/99 6300.00 s 1lrsrss $3ao.oo s 1y3/ss 5300.00 7 12/31!98 X300.00 H 1/28100 ~-® 2125100 10 3/24100 11 4/21!00 12 3/19/00 13 6/16/00 14 7!14100 15 e~1 vau 16 4/8100 17 10/6!00 ~ e 11!3!00 19 1yt/00 20 12/28100 21 ~ ~ '1128/01 22 2!23!01 23 3/23/01 24 anorol 26 5/18/01 Tt1.9tate Trailer Leasing, Ina. 2A 6115101 27 7!13/01 6y: 28 8/10/01 28 30 9/7/01 Title: leaning Mana er 10/5/01 31 11 /y01 Date: 7 ~.~ 32 11/30/01 33 12/28!01 34 1125102 le ffe(ght LInAS Ina. 35 Z/22/02 , 36 3122102 gy, ~ 3T 39 40 _ Date; ~ 1 ~'(lC~ S"' JUL-13-1559 17 27 TR1-STRTE TRRILER SRLES 412 777 4p10 P. 03 i f~ i .'~ N C7 r `? d1 m a -~ N N N r 4~a w` ~o~~= mra'O n •~ - r- ~" ~~ ._ -...~ ,nn+..u. -+rn-w ~ Esc rrr Hnie r. era i - s ~ ;'ttn. CQ ~ :x :, ~ r ~ S" .. i .. N , 1' ~ a~ I~ .~ J0 Q O ~, cc+ *11 tf~ v,:l: ~~ W ` . ~ ~. ~ ., Y ,R~ N i'~r.'; ~ ~ A 4~ ~ ,~: ~ ~. d r T 4 ~ b G 0. ~v •., .: . ~ L` w ~° Q 4 r ~: ~~ a ~'~ C ~{`~ N ~ ~- ,~ f"' VERIFICATION The undersigned, having read the attached Complaint, hereby verifies that all averments of fact not appearing of record contained in the attached complaint are true and correct to the best cf the undersigned's perscnal knowledge or information and belief. To the extent that the Complaint is based on information provided to the undersigned by counsel, the undersigned has relied upon counsel in taking this verification. This verification is made subject to the penalties of 28 Pa. C.S. § 4904 relating to unsworn falsification to authorities. TRI-STATE TRAILER LEASING, INC. B - Title: ~~~`~°~~-t~-.'"c..i DATED: (J KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610)670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff vs. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-05376P JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter F. Schuchman, Jr., Esquire, hereby certify that on March ~, 2002, a copy of the attached Complaint was served upon the following parties via First Class Mail, postage prepaid: Eagle Freight Lines, Inc. Attn: Earl Mumma, Jr., President 835 Wynnewood Road Camp Hill, PA 17011 This Certificate is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. KOZLOFF STOUDT ~~~ Peter F. Schuchman, Jr., Esquire ~ Attorney ID No. 69343 ~:~a KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610)670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., : IN THE COURT OF COMMON PLEAS OF vs. Plaintiff EAGLE FREIGHT LINES, INC., Defendant CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-05376P JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification bearing the original signature of Frank Mancino, President of Tri-State Trailer Leasing, Inc., attached to the Complaint. KOZLOFF STOUDT i P ter F. Schuchman, Jr., Esquire Attorney for Plaintiff Dated: Apri116, 2002 Y.1umt'i.ahahF- ... ..:u.. I .. ~. ... .Iwvw:...~a i.. . SyR.' M1 VERIFICATION The undersigned, having read the attached Amended Complaint, hereby verifies that all averments of fact not appearing of record contained in the attached complaint are true and correct to the best of the undersigned's personal knowledge or information and belief. To the extent that the Complaint is based on information provided to the undersigned by counsel, the undersigned has relied upon counsel in taking this verification. This verification is made subject to the penalties of 28 Pa. C.S. § 4904 relating to unsworn falsification to authorities. TRI-STATE TRAILER LEASING, INC. v: ~ ~:,~ Title: ~ °~"'~"`~~~~ DATED: 7' ~~ ~ Y '_.i. .'tarn arJW~~v~t KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610)670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff vs. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-05376P JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter F. Schuchman, Esquire, attorney for Plaintiff, certifies that on M I /'/, ZGn? , 3602, a copy of the attached Praecipe to Substitute Verification was served upon the following party by first class mail, postage prepaid: Dale A. Betty, Esquire 3130 Center Square West 1500 Market Street Philadelphia, PA 19102 Attorney for Defendant This Certificate is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. KOZLOFF STOUDT 1 Pe r F. Schuchman, jr., Esquir Attorney for Plaintiff r . - -` '~'6~$Pie"3&aV_Y~s~f.4t@Yi66s~k»F~#+wa - _... ....__~,. r rs~e ~...~ ...r.3~._:-<a.v hse,.~+§SGiii~Wlia"a°`... "~-w--serK~bfw`we~ _ ~a¢aSdifw' ^"#~s V Q ' -' f l U~ ~'C ^_ C~ ~ O r- l" " r7t: J m': ~7T~ C=~ " E` N =~ t~ .J t7i ~ .~ ~~ PRAECIPE FOR LISTItiG C.~SE FOR aRGliY1E~iT (~[ust be typewritten and submitted in duplicates TO THE PROTHONOT.~.RY,'OF CL':rIBERL~tiD COirNTY: Please list the within matter for the nest: i` P:e•Triai Ar;umznt G~ur? ~ X Areumeat Court CAPTION OF CASE (entire caption must be stated in full) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW TRI-STATE TRAILER LEASING, INC., (Plaintift~ vs. EAGLE FREIGHT LINES, INC., (Deiendaat) vs. Z. 3 DOCKET NO. 2001-5376 JURY TRIAFs DEMANDED `:o. Civi] ;9 State matter to be argued (i. e., plaintiffs motion for new trial. defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plai_ntiff's Amended Complaint Identify counsel who will argue base: Peter F. Schuclvnan, Jr., Esquire (a) t'or plaintiff: Jason B. Hopp, Esquire Address: Kozloff Stoudt {b} for deiendant2640 Westview Dr. , P.O. Box 6286, Wyomissing, PA 19610 Address: Dale A. Betty, Esquire Jack IInas & Associates I will notify all pazties in~~i24t~~.,~~~~>;~.`ti~4ttYs,:a3c~i~ `~aaket St. , Philadelphia, PA listed for argument. _ 19102 4, Argument Court Date: July 24, Call of Argument List Date: for Plaintiff ) B. Hopp, Esquire Dated: !!p~~j--Q~ c ~ ~ ~~ _ ~'~ ~,, ~= ~., -~ ~~ C_ fx J tJ ~ .~} PI i, ~ ~~ ~_~ _ S 1 cyy 0~~ OK V Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215)972-8065 TRI-STATE TRAILER LEASING, INC. v. EAGLE FREIGHT LINES. INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, Eagle Freight Lines, Inc. in the above entitled action. JACK EMAS & ASSOCIATES ~~ BY: ~` ~ DALE A. BETTY Ii r. ~z _ - - i; ,"''' - ' ~ rJ - [ ~~i __ _ _.~.~ _ R~ /~ KOZLOFF STOUD'T By: Peter F. Schuchman, jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610)670-2552 TRI-STATE TRAILER LEASING, INC., 311 Grand Avenue Neville Island, PA 15225 Plaintiff vs. EAGLE FREIGHT LIPdES, INC. 835 Wynnewood Road Camp Hill, PA 17011 Defendant Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS To the Prothonotary: Please issue a Writ of Summons in a civil action against the Defendant named above. Dated: ' ~ Z' ~ I KOZLOFF STOUDT Peter F. Schuchman, Jr., Esquire Attorney ID# 69343 2640 Westview Drive Wyomissing, PA 19610 (610)670-2552 Attorney for Plaintiff KOZLOFF STOUD'T By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610)670-2552 TRI-STATE TRAILER LEASING, INC., 3111 Grand Avenue Neville Island, PA 15225 Plaintiff vs. EAGLE FREIGHT LINES, INC. 835 Wynnewood Road Camp Hill, PA 17011 Defendant Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW JURY TRIAL DEMANDED WRIT OF SUMMONS TO: Eagle Freight Lines, Inc. You are hereby notified that Plaintiff, Tri-State Trailer Leasing, Inc., has commenced an action against you. Prothonot Dated: ~ O Deputy Prothonotary KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610)670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., 311 Grand Avenue Neville Island, PA 15225 Plaintiff vs. EAGLE FREIGHT LINES, INC. 835 Wynnewood Road Camp Hill, PA 17011 Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. JURY TRIAL DEMANDED SHERIFF'S INSTRUCTIONS To the Sheriff: Please serve the Writ of Summons on the Defendant, Eagle Freight Lines, Inc. at 835 Wynnewood Road, Camp Hill, Pennsylvania 17011 _ i _ x .. ,....~ .:._., ~,.µ .._ .,,,. -.~ ~3n .",'&~*3 'k~+F1iF~d!-4eb'._. ek~Y t4se 3' ., .; _.,_ ~m~kx1:5'+`.s?4#f'~E 1 W a c ~~ ~! I~ ~~ W c C ~; =r ~. ~~ ~, ~ ~; ~ __ e-~ ~a - __ ~~ ~ _ z ~ cx~ -~ SHERIFF'S RETURN - REGULAR CASE NO: 2001-05376 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TRI-STATE TRAILER LEASING VS EAGLE FREIGHT LINES INC RICHARD SMITH Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon EAGLE FREIGHT LINES INC the DEFENDANT at 1924:00 HOURS, on the 25th day of September, 2001 at 835 WYNNEWOOD ROAD CAMP HILL, PA EARL MUMMA JR by handing to PRESIDENT a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs Docketing 18.00 Service 9.10 Affidavit .00 Surcharge 10.00 .00 37.10 Sworn and Subscribed to before me this ~5 ~ day of ~qy A.D. Prothono~a y ~ So~/s~~;~ '~ R. Thomas Kline 09/26/2001 KOZLOFF STOUDT By: De ty Sheriff s Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 1500 Walnut Street, Suite 1500 Philadelphia, Pennsylvania 19102 (215) 545-4770 TRI-STATE TRAILER LEASING, INC. v. EAGLE FREIGHTLINES. INC. r~o~r z s znoz ~ Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.2001-05376P ORDER AND NOW, this Z o " day of Nw-~+~+*~ , 200 t upon consideration of the within Motion to Make Rule Absolute filed by Dale A. Betty, Esquire and Jack Emas and Associates, and it appearing that no answer has been filed to the petition of counsel for defendant Eagle Freight Lines, Inc. for leave to withdraw, it is hereby ORDERED that the Rule is made absolute and Dale A. Betty, Esquire and the law firm of Jack Emas and Associates are hereby granted lease to withdraw their appearance on behalf of Defendant, Eagle Freight Lines, Inc. which has c~° - _ ~s 1-a~o ~0 •• g c~U:C~n m an ~: De ~ ~. G 0 days to obtain counsel. i~ n v ~ruF rnr ro T .~ Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 1500 Walnut Street, Suite 1500 Philadelphia, Pennsylvania 19102 (215) 545-4770 TRI-STATE TRAILER LEASING, INC. v. EAGLE FREIGHT LINES. INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY N0.2001-05376P MOTION TO MAKE RULE ABSOLUTE Dale A. Betty, Esquire of the law firm of Jack Emas and Associates files this Motion to Make Rule Absolute, and in support thereof avers the following: 1. Dale A. Betty of the law firm of Jack Emas and Associates, filed a petition to obtain approval to withdraw as counsel of record for defendant Eagle Freight Lines, Inc. and to obtain an extension of time for defendant to obtain counsel on September 11, 2002. 2. The Court issued a rule to show cause why the petition to withdraw as counsel should not be granted which was made returnable on September 23, 2002. 3. No answer to the motion has been served upon any party to this action. 4. The certification of concurrence by plaintiff s attorney, Peter F. Schuchman, Jr. to the petition to withdraw as counsel was filed on September 30, 2002. WHEREFORE, your Petitioners, Dale A. Betty, Esquire and the law firm of Jack Emas and Associates requests this Honorable Court to enter an Order making the rule issued _.. , ti on September 13, 2002 ABSOLUTE and granting them leave to withdraw their appearance as counsel for defendant. JACK EMAS & ASSOCIATES ,t~ ~s^ BY: •QZae.~ ~' DALE A. BETTY ,, 4 Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 1500 Walnut Street, Suite 1500 Philadelphia, Pennsylvania 19102 (215)545-4770 TRI-STATE TRAILER LEASING, INC. v. EAGLE FREIGHT LINES, INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.2001-05376P CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of Motion to make rule absolute was served on the following by United States first class mail postage prepaid on the /~~T day of /~®y~ygE/1 2002 to the parties listed below: Peter F. Schuchman, Jr., Esquire 2640 Westview Drive P.O. Box 6286 Wyomissing, PA 19610 Eagle Freight Lines, Inc. Attn: Earl Mumma, Jr., President 835 Wynnewood Road Camp Hill, PA 17011 This certification is made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. JACK EMAS & ASSOCIATES BY: '~u'4' DALE A. BETTY C? f'.f: ._ ,. i.'.. i _._ _ __ t'~ .~' ^T .C. -~ ...F -cam'. Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 1500 Walnut Street, Suite 1500 Philadelphia, Pennsylvania 19102 (215)545-4770 TRI-STATE TRAILER LEASING, INC. v. EAGLE FREIGHT LINES, INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.2001-05376P WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdrawal my appearance on behalf of Defendant, Eagle Freight Lines, Inc. in the above-entitled action. JACK EMAS AND ASSOCIATES BY: ~ ~' DALE A. BETTY, ESQU RE ~~~ ~ ~~ ~ r~ rv -~ l~V ~ o , i f 7; ~ j ~}'ri r r r ~' C. .... J '- .._ i_J ~ ~.C ~ ry ~i. k. v4. „ A TRI-STATE TRAII,ER LEASING, INC. Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA vs. EAGLE FREIGHT LINES, INC., Defendant. CIVII, ACTION -LAW No. 2001-05376P JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindty enter the appearance on behalf of Defendant, Eagle Freight Lines, Inc., on behalf of the above-captioned matter. Respectfully Submitted: WILLIAM T. SMITHnES,QUIItE Thomas A. Archer, Esquire ID# 73293 3747 Derry Street Hamsburg, PA 17111 (717)561-2677 Dated: t °'`' / ~-3 1 . .. CERTIFICATE OF SERVICE I, Thomas A Archer, Esquire, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the person(s) stated below, by depositing the same First Class, postage prepaid, with United States Postal Service, addressed as follows: Date: ~^2~ ~3 `-I 'G~ _ T omas A. Archer, Esquire Attorney I.D. # 73293 3747 Derry Street Harrisburg, PA 17111 (717)561-2677 Attorney for Defendant C:\MYFII,E52001\AA Forms\Civil Suits\ACerGServ.wpd W x. ksYSVYbo-~nsh93~mMa(3~~a~~ t¢ ..!~~..~,.+- i ~x=i~ozuxe.k[e51frtAC~~'a$5 o-cBa nat v+?5~s~tislF ~. 5 tail ~ W -n 13 c:: E7) -=: T t r C7 -, _, ~ _` ~ a ~C ;; C7rn .~' -~ ~~ v i Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 Jason B. Hopp, Esquire Attorney ID No. 8025$ KOZLOFFSTOUDT 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610)670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff vs. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-5376 JURY TRIAL DEMANDED NOTICE OF INTENT TO ENTER DEFAULT JUDGMENT To: Eagle Freight Lines, Inc. Mumma Trucking Corp P.O. Box 179 Camp Hill, PA 17011 Thomas A. Archer, Esquire William T. Smith, Esquire 3747 Derry Street Harrisburg, PA 17111 Counsel for Defendant DATE OF NOTICE: Apri121, 2003 NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE AN ANSWER TO OUR COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A NDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOiJ MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 2 Liberty Ave. Carlisle, PA 17013 (717) 249-3166 KOZLOFFSTOUDT Professional Corporation By: < Peter F. Schuchman, Jr., Esquire Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 Jason B. Hopp, Esquire Attorney ID No. 80258 KOZLOFF STOUDT 2640 Westview Drive, PO Box 6286 Wyomissing, PA 19610 (610)670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff vs. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-5376 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter F. Schuchman, Jr., Esquire, do hereby certify that Notice of Intent to Enter Default Judgment was served, by first class mail, upon the following party: Eagle Freight Lines, Inc. Mumma Trucking Corp P.O. Box 179 Camp Hill, PA 17011 Thomas A. Archer, Esquire William T. Smith, Esquire 3747 Derry Street Harrisburg, PA 17111 I make this certification subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date Notice of Intent to Enter Default Judgment was sent: Apri121, 2003 KOZLOFFSTOUDT Peter F. Schuchman, Jr., Esquire Attorneys for Plaintiff c7 ~ o ~~ to -, -~ ._~ - ~_ ~-, _ ' ~ 4. rJ r-~ , . ~ -< c. , s t~ t C: .._.: _..~. Y'i ^ ^ 5- -n (_t C ~ .. 7 ~1 ~ k ~ " --+ ~,' ~' fJ iJ -c; C~ Jai ' i TRI-STATE TRAILER LEASING, INC. Plaintiff, vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVII, ACTION -LAW No. 2001-05376P EAGLE FREIGHT LINES, INC., Defendant. JURY TRIAL DEMANDED NOTICE NOTICE TO PLEAD To: Plaintiff, TRI-STATE TRAILER LEASING, INC., and their attorney Peter Schuchman, 7r., Esquire. YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment maybe entered against you. Respectfully submitted, Dated: ~'1 3 Thomas A. Archer, Esqufre~ Attorney I.D. No. 73293 3747 Derry Street Harrisburg, PA 17111 (717)561-2677 Attorney for Defendant C:\MYFII,ES2001\CGenisUnumma SR\plead.wpd 1, TRI-STATE TRAII,ER LEASING, INC. Plaintiff, v5. EAGLE FREIGHT LINES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVII, ACTION -LAW No. 2001-05376P JURY TRIAL DEMANDED DEF NDANT'S ANSWER WITH NEW MATTER TO AMENDED OMPLAINT Denied. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations. 2. Admitted. 3. Admitted. 4. Admitted in part; denied in part. It is admitted only that the Lease Agreement contains certain language which speaks for itself. To the extent that the enumerated lease provisions cited by the Plaintiff are "material" terms, such a statement is a legal conclusion to which no answer is required. To the extent that an answer may be required, it is specifically denied that the enumerated provisions cited by the Plaintiff constitute "material" terms. 5. Admitted. 6. Admitted. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an Answer may be required, it is specifically denied that the trailer was returned in a defective, damaged and unusable condition due to the fact that it had been used to haul hazardous materials, including used or discarded batteries, the acid from which leaked and contaminated the trailer. To ~a ; _: ~, the contrary, the delivery and return report completed by Plaintiff and attached hereto as Exhibit "A", indicates no such damage to the trailer. 8. Denied. The delivery and return report completed by the Plaintiffupon Defendant's return of the trailer indicates certain wearing of the tires as indicated in the delivery and return report which is attached hereto as Exhibit "A" and incorporated by reference. The allegations regarding the unit price is specifically denied. 9. Denied. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations. 10. Denied. The allegations are conclusions of law under fact to which no answer is required. To the extent that an answer maybe required, it is specifically denied that rent for the trailer continues to accrue at the rate of $300 per four week billing cycle until such time as Eagle Freight purchases the trailer. 11. Denied. Defendant is unaware of "numerous invoices" representing ongoing rent charges, tine wear charges and the purchase price of the trailer, allegations of which are all specifically denied. 12. Adrnitted in part; denied in part. It is admitted only that Eagle Freight has refused to tender any additional payments to the Plaintiff for damages which are unsubstantiated in law or fact. 13. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent a response is required, Defendant specifically denies that Plaintiff has received or incurred costs to dispose of the trailer in the amount of $970.00. 14. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer maybe required, it is specifically denied that the invoices referenced are necessary, fair and reasonable or are chazges agreed to pay in connection with the Lease Agreement. COUNTI BREACH OF CONTRACT 15. Defendant incorporates by reference herein the contents of paragraphs 1-14 of Defendant's Answer and New Matter as though same were set forth herein at length. 16. Denied. The allegations are conclusions of law and/or fact to which no response is required. By way of further answer, such allegations are denied in accordance with Pa.RC.P. 1029(e). Defendant specifically denies any liability to Plaintiff for returning the trailer before the expiration of the Lease Agreement or returning the trailer in defective, contaminated apd unusable condition, constituting material breach of the Lease Agreement. 17. Denied. The allegations aze conclusions of law and/or fact to which no response is required. By way of further answer, such allegations aze denied in accordance with Pa.RC.P. 1029(e). Defendant specifically denies that as a direct and proximate result of the terms of the Lease Agreement, Tri-State suffered damages as alleged. 18. Denied. The allegations aze conclusions of law and/or fact to which no answer is required. The allegations are conclusions of law and/or fact to which no response is required. By way of further answer, such allegations are denied in accordance _.. __ with Pa.R.C.P. 1029(e). WHEREFORE, Defendant, Eagle Freight Lines, Inc., demands judgment in its favor and against Plaintiff, Tri-State Leasing, Inc., together with costs, reasonable attorneys fees and such additional relief as may be recoverable under applicable law. COUNT II 19. Defendant incorporates by reference herein the contents of paragraphs 1-18 of Defendant's Answer and New Matter as though same were set forth herein at length. 20. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). Defendant denies that it owed any duty of reasonable care to Plaintiff under the circumstances 21. (a)-(g). Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). 21[SICJ. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). Defendant specifically denies that as a direct and proximate result of the negligence of Eagle Freight, as alleged, Tri-State has sustained damages as set forth in Plaintiff's Amended Complaint. 22. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). Defendant specifically denies that as a direct and proximate result of the negligence of Eagle Freight, as alleged, Tri-State has sustained damages as set forth in Plaintiff s Amended Complaint. WHEREFORE, Defendant, Eagle Freight Lines, Inc., demands judgment in its favor and against Plaintiff, Tri-State Leasing, Inc., together with costs, reasonable attorneys fees and such additional relief as may be recoverable under applicable law. COUNT III AUD 23. Defendant incorporates by reference herein the contents of paragraphs 1-22 of Defendant's Answer and New Matter as though same were set forth herein at length. 24. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, Defendant specifically denies that Defendant knew it intended to use the trailer for purposes of jsicJ hazardous materials, including used batteries, which Defendant knew had the propensity to leak and damage the containers in which they were stored, including the trailer. 25. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further response, Defendant specifically denies that it deliberately concealed from Plaintiff, Defendant's intended purpose of using the trailer to haul hazardous materials to induce Plaintiff to lease the trailer because Defendant expected that Plaintiffwould not have leased the trailer to Defendant had it known that Defendant intended to haul hazardous materials. 26. Denied. The allegations are conclusions of law and/or fact to which no answer is f required. By way of further answer, Defendant specifically denies that at the time Defendant entered into the lease, Defendant never intended to purchase the trailer and acted in knowing or reckless disregard of the consequences, including damage to the trailer beyond repair, of hauling hazardous materials, including used batteries. 27. Denied. The allegations are conclusions of law and or fact to which no answer is required. By way of further answer, Defendant specifically denies that Plaintiff relied to its detriment on Defendant's concealment of any facts or that Defendant intended to use the trailer to haul hazardous materials because Plaintiff leased the trailer to Defendant. 28. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, Defendant specifically denies that Defendant induced Plaintiffto lease trailer to Defendant and specifically denies that any such actions were deliberate, malicious or borne of evil motive so as to justify an award of punitive damages. WHEREFORE, Defendant, Eagle Freight Lines, Inc., demands judgment in its favor and against Plaintiff, Tri-State Leasing, Inc., together with costs, reasonable attorneys fees and such additional relief as maybe recoverable under applicable law. COUNT IV 29. Defendant incorporates by reference herein the contents of paragraphs 1-28 of Defendant's Answer and New Matter as though same were set forth herein at length. 30. Denied. The allegations aze conclusions of law and/or fact to which no answer is required. By way of further answer, such allegations aze denied in accordance with Pa.R.C.P. 1029(e). Defendant specifically denies that it used the trailer for improper purposes or that it returned the trailer in a condition damaged and/or unusable by the Plaintiff, that Defendant deprived Plaintiff of its rights of ownership and use of the trailer, including but not limited to causing Plaintiff a loss of profits resulting from the Plaintiff being unable to lease the trailer to other entities. 31. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer; such allegations aze denied in accordance with Pa.R.C.P. 1029(e). By way of further answer, Defendant specifically denies that Defendant intentionally and with wilful and wanton disregazd of the rights of Plaintiff and its trailer, induced Plaintiffto enter into the Lease, took possession of the trailer, intentionally hauled materials it knew, or reasonably expected would damage the trailer, and rather than purchasing the trailer returned the trailer to Plaintiff in an damaged and unusable condition. 32. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). Defendant specifically denies that Defendant engaged in deliberate and/or indifferent violation of the rights of Plaintiff or that Defendant was deliberate, malicious or borne of evil motive so as to justify an award of punitive damages. WHEREFORE, Defendant, Eagle Freight Lines, Inc., demands judgment in its favor and against Plaintiff, Tri-State Leasing, Inc., together with costs, reasonable attorneys fees and such additional relief as maybe recoverable under applicable law. NEW MATTER 33. Defendant incorporates by reference herein the contents of paragraphs 1-32 of Defendant's Answer and New Matter as though same were set forth herein at length. 34. At no time did the Defendant misuse the trailer leased from the Plaintiff or haul hazardous materials which caused any damage to the Plaintiff s trailer. 35. The delivery and return report completed by the Plaintiff at the time the trailer was returned to the Plaintiffby Defendant indicates no damage to the trailer as indicated by the Plaintiff in its Amended Complaint. 36. The Lease Agreement does not provide for any liability by Defendant to Plaintiff for returning the trailer on the date accepted for delivery by the Plaintiff, nor does the Lease Agreement provide for any liability by the Defendant to the Plaintiff for failure to purchase the trailer. 37. In the event that Defendant is liable to the Plaintiff for any of the damages alleged in Plaintiff s Complaint, Plaintiff is barred as a matter of law from seeking damages for both the purchase price of the trailer and continuing loss profits for failure to lease the trailer to other entities. 38. The Amended Complaint fails to state a cause of action against the Defendant upon which relief maybe granted. 39. The damage to the Plaintiff s trailer may be due to the negligence of the Plaintiff or other parties of which the Defendant has no control, which negligence may bar or limit any claim that the Plaintiff has asserted, the existence of any such claim against the Defendant being specifically denied. 40. The Plaintiff has failed to mitigate its damages, if any. 41. Plaintiff s claims may be barred by the applicable statute of limitations. 42. Plaintiff s claims maybe barred under the Doctrine of Lacher. 43. Plaintiff s claims may be barred, in whole or in part, by the Doctrine of Unclean Hands. WHEREFORE, Defendant, Eagle Freight Lines, Inc., demands judgment in its favor and against Plaintiff, Tri-State Leasing, Inc., together with costs, reasonable attorneys fees and such additional relief as may be recoverable under applicable law. Respectfully Submitted: WII,LIAM T. SMITH, ESQUIRE by: ~~ r ~ /L ~1.. nt. Thomas A. Archer, Esqurre ID# 73293 3747 Derry Street Harrisburg, PA 17111 (717)561-2677 Dated: ~ ~'I (]3 usias;mu _.._ ... ._.._ ..........~ _9pnw..~ ..... ........... li~li~ _.... ;_ ._ _ _. _.. __ . . * sK r g~yy~r api~rr ~r - ®GI.' Y ~RY' ®ET'1 ep1L1 p~P/~py Phone: (412)747-7777 i7d„~'dRT G7 P Wfllr fl 1J171~ (800)724J599 yy Fax: (412)777-4010 Id~i~ ~ l~~' P.O. Box 9322.3111 Grand Ave. -~ - ~ fah ~ KN~'+a'h Pittsburgh, PA 15225 CUSTOMER: ~ ~ DATE UN67: YEAR rE M KE: VIN#~Q~~A~1 9lll~,~g~ ti 4 v 2 TYPE: VAN FLAT DROPDECK REEFER ~9'fl ~~~ SaZ STORAGE HOBO READING OUT ~-- IN: iNITfAL RECEIPT AND INSPECTION RETURN RECEIPT AND INSPECTION MARK CLEARLY ALi DAMAGES OR DEFK;IEPICY FOUND BY INSPECTION SYMBOL "B" BRUISE -"C" CUT -"H" HCR..E - "D" DAMAGES rswTae~ moor 1 ~ '~crra~ faowr [!d ~ n n . TOP REfdt Paerr WE TOP _ ~+ - WF~AR RKYrraa]E J ® ® aV6~R.00Ra 000aS o Q ai991EPLOp1{DOOaB RAOR ROOa ~1 _. CLEARANCE CLEARANCE -LIGHTS FRONT REAR STOP LIGHTS FRONT REAR STOP SIDE SIDE MARKERS LEFT RIGHT TAILLIGHT MARKERS LEFT RIGHT TAILLIGHT REFLECTORS LEFT SIDE RIGHT SIDE REAR REFLECTORS LEFT SIDE RIGHT SIDE REAR BRAKES DIN GEAR FLAPS BRAKES L'AN NG WIRING REAR END PROTECTION WIRING REAR END PROTECTION LUGS UNDERCARRIAGE SAE PLUG WHEEL LUGS UNDER CARRIAGE SAE-ATA 7 WAY PLUG ~~~ q a FO T ~ T ~ -~ 3 ~ °C ~ s RCS JaE ~ O~ , E 5 3~. ~~N ~ ~ ~'~ ~T~ Leafee erkmwleapea bl`euarraiY ate apuere below Malhe hae MUpeeledaK eaulgnem ataN L~ ~ eM hea reoekaU M are eanattian epetlaea above. Leaaorano 4esaeoeeMatlcnowletlae UY~~W~~eE6law~amt~l3+lie6ine0aaad Me above eql Won Mum m Leeaar any the repoMea coMlaon aPao~aL ahova b LESSEE InHiai i'CrACale. ereepl86~FMCG1WmeQE_ rldt LES Hial Q 5" ! 75"~ 5 S~ initial ~~~ ~ ~ DRIVERS LICENSE NUMBER , "' DRIVERS LICENSE NUMBER >; 'V _ a ~,;;~, DATE ~ DATE LESSEE IS RESPONS/BLEr FOR ALL FLATS, DAMAGE, OIL LEVELS, HUB BEARINGS. 1{ ,., ~, '; DISCRIPTION OF MISSING PARTS OR DAMAGE ON RETURN: /f~~n~ ,_ $ I _ _~ ~. ~; •i M VERIFICATION I hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. 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: `~ 2," 3 ~a~~ THOMAS A. ARCHER, ESQUIRE Attorney for Defendant CERTIFICATE OF SERVICE I, Thomas A. Archer, Esquire, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the person(s) stated below, by depositing the same First Class, postage prepaid, with United States Postal Service, addressed as follows: Peter F. Schuchman, Jr., Esquire KOZLOFFSTOUDT 2640 Westview Drive P.O. Box 628b Wyomissing, PA 19610 Date: ~ Z~ ~ 3 ~~~-~ l~/~C~V~ w Thomas A, Archer, Esgm^ ~re~^ Attorney for Defendant .... #!b5nk:ta3 ,k3~%hll~tet,;'x~rA .~ :c=+. a .: ,,;? ... ,~ :e-,.,s . w.X:iz@*.$4s'. - 3~.Ntl&ek~ammvatx-w.- - •' re-az -,.:„ i~ 6 n ~~ L :y •A f ~ia -- r~r. _ ~ - _ ~< ~ -~,,- r , _ ,= _~ - =~ ,j ~ - _: ~_: _ri -~ ~ ~ ~~` ~i KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610)670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., : IN THE COURT OF COMMON PLEAS OF vs. Plaintiff EAGLE FREIGHT LINES, INC., Defendant CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-05376P JURY TRIAL DEMANDED REPLY TO NEW MATTER 33. Plaintiff incorporates by reference herein the contents of paragraphs 1 through 32 of its Amended Complaint as fully as though the same were set forth verbatim. 34. Denied. The contents of paragraph 36 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies any characterization or mischaracterization of any document inasmuch as they are written instruments, the contents of which are self-evident. 35. Denied. The contents of paragraph 35 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies any characterization or mischaracterization of any document inasmuch as they are written instruments, the contents of which are self-evident. Byway of still further answer and defense, Plaintiff avers that the trailer was damaged as set forth at length in Plaintiff's Amended Compliant. 36. Denied. The contents of paragraph 36 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies any characterization or mischaracterization of any document inasmuch as they are written instruments, the contents of which are self-evident. 37. Denied. The contents of paragraph 37 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies any characterization or mischaracterization of any document inasmuch as they are written instruments, the contents of which are self-evident. By way of further answer and defense, Plaintiff avers that it is entitled to be made whole. 38. Denied. The contents of paragraph 38 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is 2 nevertheless required, Plaintiff specifically denies that its Amended Complaint fails to state a cause of action against the Defendant upon which relief may be granted. 39. Denied. The contents of paragraph 39 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies any characterization or mischaxacterization of any document inasmuch as they are written instruments, the contents of which are self-evident. 40. Denied. The contents of paragraph 40 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies any characterization or mischaracterization of any document inasmuch as they are written instruments, the contents of which are self-evident. 41. Denied. The contents of paragraph 41 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies that Plaintiff's claims may be barred by the applicable statute of limitations. ~k2. Denied. The contents of paragraph 42 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required 3 under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies that Plaintiff's claims may be barred under the Doctrine of Laches. 43. Denied. The contents of paragraph 43 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies that Plaintiff's claims may be barred by the Doctrine of Unclean Hands. WHEREFORE, Plaintiff, Tri-State Trailer Leasing, Inc., demands judgment in its favor and against Defendant, Eagle freight Lines, Inc. in an amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. STOUDT IDeter F. Schuchman, Jr., Attorney ID # 69343 Attorney for Plaintiff 4 VERIFICATION The undersigned, having read the attached Reply to New Matter hereby verifies that all averments of fact not appearing of record contained in the attached Reply to New Matter are true and correct to the best of the undersign s personal knowledge or information and belief. To the extent that the answers are based on information provided to the undersigned by counsel, the undersigned has relied upon counsel in taking this verification. The language is that of counsel. This verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Tri-State Trailer Leasing, Inc. By: /~_ Title: DATED: r~/n 3 TRI-STATE TRAILER LEASING, INC., Plaintiff vs. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-05376P JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter F. Schuchman, Jr., Esquire, hereby certify that on 7 ~ZZ 03 a copy of the attached Reply to New Matter was served upon the following parties via First Class Mail, postage prepaid: Thomas A. Archer, Esquire 3747 Derry Street Harrisburg, Pa 17111 Attorney for Defendant This Certificate is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. STOUDT Peter F. Schuchman, Jr., Attorney ID No. 69343 Attorney for Plaintiff r~~~~; _ n ~_ ~;;, mr°. G~~' r' C:. ?`.- ~~ ,m, _. -~~ i+.J t~_ _-~ _..,. --~. C i f.a ~.~.7 .. 1 ~~ ~a C:.` -ti s.. m - ~9r;~` wp{wp},bkl Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 Jason B. Hopp, Esquire Attorney ID No. 80258 KOZLOFFSTOUDT 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610)670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-5376 EAGLE FREIGHT LINES, INC., :JURY TRIAL DEMANDED Defendant CERTIFICATE OF SERVICE I, Peter F. Schuchman, Jr., Esquire, hereby certify that on . ~ a copy of Plaintiff's First Request for Production of Documents was e ed upon the following parties via First Class Mail, postage prepaid: Thomas A. Archer, Esquire 3747 Derry Street Harrisburg, Pa 17111 Attorney for Defendant This Certificate is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to C) L... "{ -~"`..^ ..~ ~~C~ _~ > ~> C~ -- Jrr : tai: . {a? Gil ~~~ Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 Jason B. Hopp, Esquire Attorney ID No. 80258 KOZLOFFSTOUDT 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610)670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff vs. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION -LAW N0.2001-5376 JURY TRIAL DEMANDED PRAECIPE FOR DISCONTINUANCE TO THE PROTHONOTARY: Kindly mark the docket in the above-captioned matter, "Settled, Discontinued and Ended." Peter F. Schuchman, Jr., Esquire Attorney for Plaintiff KOZLOFF STOUDT `1 .., ,s6tY}n~d~~#W.~xivu:W'.lis.same~~x~:ssaznaSSS=~ .: u-:wi~~u~: ~i+sa r• O Q -~ S ~.' ~ 'll ~'~ ~ ~ { ~4, ~~ -~ ~~ ~~ STEVEN A. FAILOR, Individually, and : IN THE COURT OF COMMON PLEAS OF t!d!b!a FAILOR'S SALVAGE YARD :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v :CIVIL ACTION -LAW ROBERT W. FAILOR, JR. and : NO. 01-5367 KAYE N. FAILOR, his wife, . Defendant. PRAECIPE TO SETTLE AND DISCONTINUE TO CURTIS R, LONG, PROTHONOTARY: Please mazk the above-captioned case settled and discontinued. Respectfully submitted, IRWIN, McKNIGHT & HUGHES Date: August 20, 2003 By: Dou , s Miller, ~ squire Supreme ourt ID #83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 c-> <: ~~ c t f_„ (717)249-2353 ~_ n, '_' Atte:::ey far Plaintiff -t `--- `-~ y • -. zt ~,., - c,, <~ -:- :. - : ~ ,",i '-.;- _;. , ,5 ._ -,