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Home My WebLink About03-2395 CENTRAL P A DATA SERVICES, INe., Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2003- 01.39.5 CIVIL TERM RICHARD DAME d/bla Shared Data Services and BANCTEC, INC., Defendants. : CIVIL ACTION-LAW NOTICE 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 an 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. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 CENTRAL PA DATA SERVICES, INC., Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA V. :23 t;! : NO. 2003- CIVIL TERM RICHARD DAME d/bla Shared Data : CIVIL ACTION-LAW Services and BANCTEC, INC., Defendants. COMPLAINT NOW, comes Plaintiff, Central Pa Data Services, Inc.("Central Pa"), by and through its attorneys, O'BRIEN, BARIC & SCHERER, and files the within complaint and, in support thereof, sets forth the following: 1. Central Pa Data Services, Inc. is a Pennsylvania corporation with its principal place of business located at 138 Tory Circle, Enola, Ctunberland County, Pennsylvania. 2. Richard Dame, d/bla Shared Data Services, is an adult individual with a principal residence located at 6044 Camelot Court, Montgomery, Alabama. 3. BancTec, Inc. ("BancTec"), is a Texas corporation with its principal place of business located at 2701 East Grauwyler Road, Irving, Texas. 4. Central Pa is in the business of providing computer consulting services including system designs and applications. 1 5. In 2000, Richard Dame, d/bla Shared Data, contacted Dana Showers, the president of Central P A, at the office of Central Pa in Enola, Pennsylvania and asked whether Central Pa would be interested in providing services as a subcontractor to Shared Data for projects undertaken by Shared Data. Shared Data and Central Pa had previously worked together on other computer consulting projects. 6. In October, 2001, Shared Data entered into a Staffing Services Agreement with BancTec. A true and correct copy of the Staffing Services Agreement is attached hereto as Exhibit "A" and is incorporated. 7. Prior to and after the date of the Staffing Services Agreement, Central Pa provided services on various projects through Shared Data to BancTec. These projects included, but were not limited to; ALDIR, Kable News and MDCH ("projects"). 8. Both Dame and BancTec were aware that Central Pa would be performing a portion of its work on the projects from the Central Pa office in Enola, Pennsylvania as well as on site at the business locations of the customers. Substantial parts of the dealings amongst the parties took place in or otherwise involved, Enola, Pennsylvania including, but not limited to, written and telephonic communications and billing and paying of invoices. Further, upon information and belief, BancTec has conducted business within the Commonwealth of Pennsylvania over an extended period of time including providing substantial services and materials for customers in Cumberland County, Pennsylvania. 2 9. Prior to providing services, Central Pa quoted Dame the fee of $1 00.00 per hour plus expenses for projects in which Central Pa would provide services through Shared Data. Dame accepted this offer and, thereafter, Central Pa began to provide services through Shared Data on several projects. 10. Dame informed Central Pa that for projects involving BancTec, Central Pa was to provide time sheets to Dame that he would forward to BancTec for payment. Dame informed Central Pa that Dame would be billing BancTec at the rate of$125.00 per hour for time provided by Central Pa. Dame would, upon receipt of a check from BancTec, keep the $25.00 differential for himself and then remit a Shared Data check to Central Pa at the $100.00 per hour rate. BancTec instructed Dame to direct all time sheets involving Central Pa services to a Purchase Order number BancTec provided specifically for Central Pa. 11. For a period of eleven (11) months, the invoices of Central Pa were routinely paid for work Central Pa provided on the projects. 12. Central Pa provided services through Shared Data for the projects up to March, 2002. 13. Attached hereto as Exhibit "B" and incorporated by reference, are invoices which reference services provided by Central Pa for which payment has not been made. The invoices attached in the aggregate reflect a balance due of $136,719.90. Partial payments have been received leaving a balance due of$107,047.02. 14. Despite demand therefore, neither Dame nor BancTec has paid the amount due for services Central Pa provided to Shared Data and BancTec for the projects. 3 15. During the course of one of the projects (ALDIR), Shared Data sought to have an additional individual perform work on the project. Central Pa agreed to work with this individual and Central Pa and Shared Data agreed that Shared Data would pay Central Pa $25.00 per hour for each hour this individual worked on the project. Shared Data has neither paid any amount due on this debt nor provided an accounting to Central Pa regarding the number of hours worked by this individual. COUNT I-BREACH OF CONTRACT 16. Plaintiff incorporates by reference paragraphs one through fifteen as though set forth at length. 17. Dame and BancTec have breached the agreement of the parties by failing and refusing to pay for the services rendered by Central Pa for the projects. 18. As a direct consequence of this breach, Central Pa has failed to recover the sum of $107,047.02 for the services it rendered for the projects. WHEREFORE, Plaintiff requests judgment in its favor and against Dame and BancTec for the sum of $107,047.02 plus interest, costs and expenses and an additional amount unknown to Plaintiff at present as referenced in paragraph 15 hereinabove. COUNT II-QUANTUM MERUIT CENTRAL PA DATA SERVICES, INC. v. RICHARD DAME and BANCTEC, INC. 19. Plaintiff incorporates by reference paragraphs one through eighteen as though set forth at length. 4 20. Dame and BancTec have enjoyed the benefit of the services provided by Central Pa for the projects. 21. Dame and BancTec have failed and refused to pay Central Pa for the services provided by Central Pa to Dame and BancTec for the projects. 22. Dame and BancTec have been unjustly enriched by retaining and enjoying the benefits ofthe work and services provided by Central Pa to Dame and BancTec for the projects without having made payment therefor. WHEREFORE, Plaintiff requests judgment in its favor and against Dame and BancTec for the value of the work and services provided by Central Pa to Dame and BancTec. COUNT III-CONVERSION CENTRAL PA DATA SERVICES, INC. v. RICHARD DAME 23. Plaintiff incorporates by reference paragraphs one through twenty-two as though set forth at length. 24. Dame has received from BancTec a sum of money in the approximate amount of $14,000.00. This sum of money was sent to Dame by BancTec for and on account of services rendered by Central Pa. Despite demand for tender of these funds, Dame has failed and refused to release this money to Central Pa. 25. The proper use of these funds received by Dame would have been to release them to Central Pa as partial payment ofthe amount due and owing. 26. At the time of receipt of these funds, Dame was obligated to pay those funds over to Central Pa. 5 27. Knowing he had the aforesaid obligation, Dame has refused to pay the funds to Central Pa and has appropriated those funds to his own use and benefit. 28. Dame has intentionally and substantially interfered with Central Pa's right to receive the funds which were to be paid to Central Pa. WHEREFORE, Plaintiff requests judgment in its favor and against Richard Dame for the sum $107, 047.02 plus costs, expenses, interest and punitive damages. COUNT IV -INTENTIONAL INTERFERENCE WITH CONTRACT CENTRAL PA DATA SERVICES, INC. v. RICHARD DAME 29. Plaintiff incorporates paragraphs one through twenty-eight as though set forth at length. 30. During the prosecution of the ALDIR project, Dame retained another individual to perform work which was being undertaken by Central Pa without the agreement of Central Pa. This action of Dame prevented Central Pa from performing its services. 31. Dame directed Central Pa to discontinue its work on the ALDIR project. 32. Subsequent to removing Central Pa from the ALDIR project, Dame provided an invoice to BancTec which was for work and services provided by Central Pa to the ALDIR proj ect. 33. Dame directed BancTec to not pay for the services rendered by Central Pa for the ALDIR project. 34. Dame intentionally interfered with the contract between Central Pa and BancTec regarding the ALDIR project. 6 35. Dames actions were neither privileged nor justified. 36. As a consequence of Dame's actions, BancTec has not paid Central Pa for services rendered by Central Pa for the ALDIR project. 37. Central Pa remains owed the sum of $82,608.65 for work it performed on the ALDIR project. WHEREFORE, Plaintiff requests judgment in its favor and against Richard Dame for the sum of $82,608.65 plus interest, costs and expenses and punitive damages. Respectfully submitted, Zi::1t"?~ . David A. Baric, Esquire J.D. # 44853 17 West South Street Carlisle, PA 17013 (717) 249-6873 Attorney for Plaintiff da b.dir/corporate/centralpadatalbantec3.com VERIFICATION The statements in the foregoing Complaint are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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. S 4904 relating to unsworn falsifications to authorities. DAm. 5 )'1/3 e>l.~ t5~ Showers, President Central Pa Data Services STAFFING SERVICES AGREEMENT - This AGREEMENT is entered as of the !1L day of Oc / .J tJO / by and betw:e~ GlPI/len ~?"14 S"C/!f)lc6"~ ,located at to CIlcLi-J4 CbiZl-I;';/1( (]1-!r.t[64 tAL L~L\OY3 C"VENDOR") and BancTec. Inc.. located at 2701 E. Grauwyler Road, Irving. TX 75061 ("COlVtpANY"). WITNESSETH WHEREAS. COMPANY is in the business of manufacturing of document processing systems, systems integration services and maintenance services; and WHEREAS, COMPANY desires to utilize supplemental staffing persoMel supplied by VENDOR ("Supplemental Personnel"). NOW, THEREFORE, in consideration of the mutual covcnants contained hereirr, the parties hereto agree as follows: 1. TERi.'\1 The term of this Agreement shall be one year from the abo'/e date and shall be automatically renewed for successive one year periods thereafter, provided that either party shall have the right to terminate this Agreement during the initial term or any renewal term upon 30 days' prior wrinen notice. COMP ANY reserves the right to terminale the services of any individual Supplemental Personnel supplied by VENDOR under this Agreement by giving VENDOR written notice. The effective date of such termination shall be as specified by COMPANY. 2. DUTIES VENDOR will provide the appropriate resources necessal)' to service Supplemental Personnel requests from authorized COMPANY personnel. including the following: a) Performing necessary record keeping (including timecards). related to attendance, hours worked, department to be charged, ovenime and other personnel functions. b) Recruiting and retaining qualified Supplemental Personnel. c) Preparing and submitting reports reasonably deemed necessary by VENDOR and COMP^,~Y. EXHIBIT "A" DEPOSITION EXHIBIT D{Ul1<2. 5" .lb'llC3 LKt/1 (Revised 10/3/01) I OCT-30-2e01 09: 14 9725795812 96% P.02 3. INDEPENDENT CONTRACTOR NOT APPLICABLE to Shared Data Services. Shared Data Services hires individual contractors not employees of Shared Data Services. Any mention of Supplemental Personnel in this agreement is not Valid. VENDOR and all Supplemental Personnel shall at all times remain an independent contractor of COMPANY. Nothing contained herein shall be construed to create (a) an agency, partnership or joint venture relationship between COMPANY and VENDOR and/or (b) an employer/employee relationship between COMPANY and either VENDOR or Supplemental Personnel. 4. VENDOR RESPONSIBILITIES (a) VENDOR shall at all times remain the employer of Supplemental Personnel on assigrunent to COMPANY and shall be responsible for the withholding and payment of any and all federal, state and local personal income, wage earnings, occupation, unemployment, sickness and disability insurance taxes, payroll levies. employee benefit requirements or take any other actions required under applicable law (under ERISA, federal law, or otherwise) how existing and hereafter enacted (collectively, 'Taxes and Benefits") which are attributable to VENDOR and/or all Supplemental Personnel supplied under this agreement. (b) VENDOR agrees that all decisions and actions with respect to Supplemental Personnel shall be without regard to race, color, religion. sex, national orgin, disability, age or veteran status. (c) VENDOR shaH maintain, at its expense, workers compensation insurance insurance at the levels required by applicable local laws, liability insurance in the amount of $1,000,000 covering Supplemental Personnel being supplied to COMPANY by VENDOR (d) VENDOR will ensure that all Supplemental Personnel sign a confidentially agreement in the foml supplied by COMPANY prior to the commencement of their services to COMPANY. The current Version of such form is attached to this Agreement as Attaclunent 1. (e) VENDOR will perform a criminal background check and obtain a urine dl1.lg test for all Supplemental PersOlmel prior to the commencement of their services to COMPANY. Company reserves the right to require, at COMPANY's expense, hair drug tests from any and all Supplemental Personnel at any point in time. 5. RATES (a) Billing rates for Supplemental Personnel shall be mutually agreed to by filling out and signing mutually agreed to Rate Forms, the initial version of which is attached to this . Agreement as Anachment 2. (b) Any changes to rates listed in the applicable Rate Form must be mutually agreed to by signing a revised Rate Form. (c ) Overtime hours shall be all hours worked in excess of 40 hours per week by Supplemental Personnel. Overtime hours for non-exempt personnel shall be billed to COMP ANY at 1.5 times the standard billing rate for such Supplemental Personnel, provided that VENDOR is paying such personnel at 1.5 times their standard rate. Overtime hours for exempt personnel shall be billed to COMPANY at the standard bill rate for such personnel. (d) In the event that COMPANY requests Supplemental Personnel to travel on COMPANY business, VENDOR shall invoice COMPANY for travel expenses and provide receipts for all expenses. If requested by COMPANY. VENDOR personnel shall make travel amll1gements tlu'ough COMPANY's travel agent. Only travel occurring during the standard eight hour business day, Monday through Friday, shall be billable to COMPANY. (e) COMPANY shall not be invoiced for any company holidays for which Supplemental Personnel are not asked to work or for vacation time taken by such pe:'sonnel. 6. INVOICING (a) VENDOR shall invoice COMPANY weekly unless otherwise agreed upon in writing. Payments will be made by Company, net 30 days from receipt of invoice. 7. COMPLIANCE WITH LAW AND INDEMNITY (a) If any claims for workers compensation benefits or for injuries/deaths which would be covered by workers compensation benefits is assessed against COMPANY by any Supplemental Personnel, VENDOR agrees to indemnify and save COMPANY harmless, including reasonable attorney's fees, with respect lo the liability imposed upon COMP ANY in connection with such claims. Company agrees to give prompt written notice uf any such assertion or claim. (b) Vendor further agrees to indemnify and save COMPANY harmless, including reasonable attorney's fees, from any and all liability COMPANY may incur by reason of bodily injury, death or property damage ( collectively, the "Damages") to the extent caused by the willful or negligent acts or omissions of Supplemental Personnel in the performance of their assignment for COMPANY, except to the extent the Damages are caused by '. COMPANY's negligence or willful misconduct. Company agrees to give prompt written notice of any such assertion or claim. (c) VOmOR agrees to indemnify and save harmless COMPANY, including reasonable attorney's fees, from any and all claims, judgements, fines, penalties and assessments, . including reasonable attorney's fees, incurred by VENDOR as a result of any failure by VENDOR to withhold, pay and/or provide any taxes and Benefits (as defined above) with respect to Supplemental Personnel. 8. SEPARATION EXPENSES Should COMPANY wish to hire an Supplemental Personnel identified and supplied by VENDOR hereunder, COMPANY agrees to pay VENDOR a percentage of the individuals cumualized salary at the following rates, based upon the effective date of employment following their start date as a Supplemental Personnel under this agreement. Effective Emplovment Date % of Annual Salarv Month I Month 2 Month 3 Month 4 Month 5 Month 6+ 25% 20% 15% 10% 5% 0% Should COMPANY wish to hire any Supplemental Personnel who was identified by COMP ANY to VENDOR and supplied by VENDOR hereunder, no payment shall be owed to VENDOR. 9. !,;ONSOLICITATION VENDOR agrees that during the tem1 of this agreement and six months thereafter, VENDOR will not, directly or indirectly, solicit or hire any Supplemental Personnel or COMPANY employees to provide services to VENDOR or VENDOR's other customers. 10. CONFIDENTIALITY VENDOR acknowledges that during the term of this agreement, VENDOR may obtain conlidential information regarding COMPANY's business. VENDOR agrees that VENDOR will not during the tenn of this Agreement or thereafter, directly or indirectly, use for its own benefit or for the benelit of another, or disclose to another, any trade secret, or confidential or proprietary information of BancTec, its customers, contractors, vendors, or of others with which BancTec has a business relationship. VENDOR hereby assigns and agrees to assign, to BancTec or its designee, assigns successors or legal representatives, all right, title and interest to any and all inventions, processes, diagrams, methods, apparatus, or any improvements whatsoever discovered, conceived, and or developed, either individually by Supplemental Personnel or jointly with others, during the course of services provided by any Supplemental Personnel. 11.. NO WAIVER No term or provision ofthis Agreement may be changed, waived, or terminated except by a written instrument signed by the party against whom the enforcement of such change, waiver or termination is sought. 12. . NON-ASSIGNABILITY Neither party shall assign this Agreement or any interest herein without the prior written consent of the other parry. 13. SEVER<U3ILlTY In the event any provision herein shall be judged illegal, void or unenforceable, the balance of this Agreement shall remain in full force and effect. 14. . AUTHORITY The persons executing this Agreement represent and warrant that they have the authority to sign this Agreement. 15. . CHOICE OF LAW this Agreement shall be governed by Texas Law. Any disputes shall be adjudicated by Texas State courts or the United States District Court located in Dallas, Texas 16. . NOTICES To VENDOR FAX: ATTN: To COMPANY Banctec, Inc 2701 E Grauwyler Road Irving, Texas 75061 Fax (972) 579-5812 Attn: Human Resources 17. ENTIRE AGREEMENT This Agreement, together with the signed Rate Forms, constitutes the entire agreement between the panies with regard to the subject matter of this Agreement. This Agreement supersedes all prior negotiations and agreements, oral or written, with regard to the subject matter of this Agreement. IN WITNESS WHEREOF, the panies hereto have executed this Agreement as of the date first above written. Authorized Signature: Name: Title: . ~/t~ /oi,qnr) LV r -i\AU1C t2- -- , C'./I:lr::.v[ VENDOR BANCTEC, INC. Authorized Signature: Printed Name: Brian Stone Title: CFO & Sr. VP (Revised 10/3/01) 6 OCT-30-2001 09: 16 97257'35812 ** TOTAL PAGE. 07 ** 967. P.07 Centra~ P~ pata Serv~ces, 138 Tory Circle Enola, PA 17025 USA Voice: Fax: (717) 732-9531 (.717) 7J2-9!JJ2 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Inc. Customer ID: Shared Data Services Customer PO Payment Terms Net 30 Days Sales Rep ID 1 Description Dana Showers July 2001 per hr Expenses wk 7/15/01 ALDIR 44.5 hrs @ 100.00 $839.58 Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL ~><.ltfl EXHIBIT "B" . , Invoi( Invoice Numbt 2: Invoice Da 7/1/( Pa, Due Date 7/31/01 Amount 4,450.01 839.5: 5,289.! 5,289. ! 5,289.! Cen~r~l ~~ Data Services, 138 Tory Circle Enola, PA 17025 USA Voice: Fax" (717) 732-9531 (717) 7J2 9:i32 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 " ' Inc. Customer 10: Shared Data Services Customer PO July 2001 per hr Description Dana Showers Payment Terms Net 30 Days Kable Check No: IFK~Z. 24 Sales Rep 10 1 hrs @ 100.00 Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL . , invoi Invo(ce Numl 2 Invoice 0; 7/1/ Pa Due Date 7/31/01 Amount 2,400.0 2,400.( 2,400.( 2,400.0 Cent,ral PA Data Services, Inc. 138 Tory Circle Enola, PA 17025 USA Voice: Fax" - (717) 732-9531 (717) "'IJL ~::':J2 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO July 2001 ?er hr Expenses wk Expenses wk Description Dana Showers 7/22/01 7/29/01 Payment Terms Net 30 Days MDCH $1778.15 $1136.80 Check No: ck-$l3 149.5 Sales Rep 10 hrs @ 100.00 <.- Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL. Invoi Invoice Numl 2 Invoice 01 7/1/ Pa Due Date 7/31/01 Amount 14,950.0 1,778.1 1,136.8 17,864.~ 17,864.~ 17,864.5 Central PA Data Services, 13B T~ry Circle Enola, PA 17025 USA Voice: (717) 732-9531 Fax: (717) 732-9532 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Inc. Customer 10: Shared Data Services Customer PO Payment Terms Due Upon Receipt Description August 2001 MDCH Consulting services Expenses MDCH Week ending 8/4/2001 Check No: c::l( :11(>'-1 Sales Rep 10 1 - 42 hours @ $100.00 Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL Invoi( Invoice Numb, 2: Invoice Oa 8/31/( Pal Due Date 8/31/01 Amount 4,200.0( 714.81 4,914. E 4,914.E 4,914.E Central PA-Data Services, Inc. 138 Tory Circle Enola, PA 17025 USA Voice: Fax: (717) 732-9531 (717) 732-9532 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer ID: Shared Data Services I Customer PO Payment Terms Due Upon Receipt Sales Rep ID 1 Description September 2001 - Kable News - Consulting Services - 44.5 hours @ $100.00 Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL ~x *"5 lnvoil InvoiGEl Numb 2: Invoice Da 10/6/- Pal Due Date 10/6/01 Amount 4,450.0 4,450.1 ~~4EO.1 .4,450.1 Central PA Data Services, Inc. 138 Tory Circle Enola, PA 17025 USA Voice: Fax: (717) 732-9531 (717) 732-9532 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer ID: Shared Data Services Customer PO Payment Terms Due Upon Receipt October Expenses Description 2001 - ALDIR - Consulting Services - - week of 10/06/01 Check No: tE"X ",...t, 187 hours Sales Rep ID 1 @ $100.00 Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL lnvoic Invoice NumbE 2: Invoice Dat 10/31/( Pag Due Date 10/31/01 Amount 18,700.DC 1,664.3E 20,364.3 20,364.3 20,364.3 Central PA Data Services, Inc. 138 Tory Circle Enola, FA 17025 USA Voice: Fax: (717) 732-9531 (717) 732-9532 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer ID: Shared Data Services Customer PO Payment Tenns Due Upon eciept Description WI< 11/04 Banktec Consul ting Services 28 hours @ $100.00 WI< 11/11 Banktec Consul ting Services 60 hours @ $100.00 WK 11/18 Banktec Consulting Services 58.5 hours @ $100.00 WI< 11/25 Banktec Consulting Services 27.5 hours. @ $100.00 WI< 12/02 Banktec Consulting Services 34.5 hours @ $100.00 Expenses WK 11/03/01 Expenses WK 11/10/01 Expenses WK 11/17/01 Expenses WK 11/24/01 Expenses WK 12/01/01 Check No: Ex :tr7 , Invoic, . Invoice Numbe 22 Invoice Dati 12/4/0 Pagl Duplicate Sales Rep ID 1 Subtotal Sales Tax Total Invoice Amounl Payment Receivec TOTAl Due Date 12/7/01 Amount 2,800.00 6,000.00 5,850.00 2,750.00 3,450.00 781. 85 628.45 660.01 640.89 515.20 24,076.4( 24,076.4( 24,076.4( Central PA Data Services, 138 Tory Circle Enola, PA 17025 USA Inc. Voice: Fax: (717) 732-9531 (717) 732-9532 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer ID: Shared Data Services Customer PO Payment Terms Due upon reciept 1 Sales Rep ID Description WI< 1-06-02 BancTec Consulting Services 26 hours @ $100.00 WI< 1-13-02 Bane Tee Consulting Services 55 hours @ $100.00 WI< 1-20-02 BancTec Consulting Services 62.5 hours @ $100.00 WI< 1-27-02 BancTec Consulting Services 59 hours @ $100.00 Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL eX """s(- Invoicl Invoice Number 23 Invoice Date 1/27/0 Page Due Date 1/29/02 Amount 2,600.00 5,500.00 6,250.00 5,900.00 20,250.0( 20,250.0C 20,250.0C . . Central PA Data Services, Inc. 138 Tory Circle Eno1a, PA 17025 USA Voice: Fax: (717) 732-9531 . (717) 732-9532 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer ID: Shared Data Services Customer PO Payment Terms Due Upon Reciept InvoicE Invoice. Number 23( Invoice Date 1/2/0: Page Duplicate Sales Rep ID 1 Description wk 12109/01 Banctec Consulting Services 75 hours @ $100.00 wk 12116/01 Banctec Consulting Services 48 hours @ $100.00 wk 12123/01 Banctec Consulting Services 17 hours @ $100.00 Expenses wk 12/08/01 Expenses wk 12115/01 Check No: E:x ~ 1 Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL Due Date 1/5/02 Amount 7,500.00 4,800.00 1,700.00 1,061.35 1,265.67 16,327.02 16,327.02 16,327.02 Central FA Data Services, Inc. 138 Tory Circle Enola, PA 17025 USA Voice: Fax: (717) 732-9531 (717) 732-9532 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer ID: Shared Data services Customer PO Description Expenses Expenses Expenses 01-12-02 01-19-02 01-26-02 Payment Terms Due upon reciept Check No: {Fit "11'"/0 Invoice Invoice Numbel 23: Invoice Date 1/27/0. Page Duplicate Sales Rep ID 1 Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL Due Date 1/29/02 Amount 1,921. 00 1,065.40 862.32 3,848.7, 3,848.72 3,848.72 . . Central PA Data Services, 138 Tory Circle Enola, PA 17025 USA Inc. Voice: Fax: (717) 732-9531 . (717) 732-9532 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Due upon presentation WK WK WK 1/28/02 2/04/02 2/11/02 Description Consulting Consulting Consulting BancTec BancTec BancTec Services Services Services Check No: E)( ~ /I 53 60.5 14 hours hours hours Sales Rep 10 1 @ @ @ $100.00 $100.00 $100.00 Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL .. InvoicE Invoice' Number 23, Invoice Date 3/4/0; Page Due Date 3/15/02 Amount 5,300.00 6,050.00 1,400.00 12,750.0C 12,750.00 12,750.00 , . Central PA Data Services, 138 Tory Circle Eno1a, PA 17025 USA Voice: Fax: (717) 732-9531 . (717) 732-9532 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 ., Inc. Customer ID: Shared Data Services Customer PO Expenses Expenses 1/28/02 2/04/02 WK WK Payment Terms Due upon presentation Description 2/03/02 2/10/02 Check No: ~x *'/2- Sales Rep ID 1 Subtotal Sales Tax Tolallnvoice Amount Payment Received TOTAL .. . .. InvoicE , Invoice Number 23< Invoice Dale 3/4/0: Page Due Date 3/15/02 Amount 1,226.34 757.63 1,983.9/ 1,983.9/ 1,983.91 I . , Central PA Data Services, Inc. 138 Tory Circle Enola, PA 17025 USA Voice: Fax: (717) 732-9531 . (717) 732-9532 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Due upon presentation ~gent Form CMA Description Franklin Poole Consulting Services Check No: g-'l( i'F 13> Sales Rep 10 1 22 hours @ $100.00 Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL . ' ~ 1 ,. J InvoicE , " . Invoice Number 23! Invoice Date 3/4/0: Page Due Date 3/15/02 Amount 2,200.00 2,200.00 2,200.00 2,200.00 ,~ ........ w I:J ~ ~ ~ ,- v.. ;- . ~ll<t~~ ~~~: \ :.. . ... (J, ~ ~ .& cI SHERIFF'S RETURN - U.S. CERTIFIED MAIL CASE NO: 2003-02395 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND CENTRAL PA DATA SERVICES INC VS. DAME RICHARD ET AL R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT ,DAME RICHARD D/B/A SHARED DATA_, SERVICES prepaid, on the 21st day of May 6044 CAMELOT COURT MONTGOMERY, AL 36117-2554 by United States Certified Mail postage ,2003 at 0000:00 HOURS, at , a true and attested copy of the attached COMPLAINT & NOTICE with Together The returned receipt card was signed by RICHARD DAME OS/27/2003 Additional Comments: Sheriff's Costs: Docketing Cert Mail Affidavit Surcharge 18.00 5.57 .00 10.00 .00 33.57 Paid by O'BRIEN BARIC SCHERER Sworn and subscr~ed to before me this IZ'!:" day of~ ~.3 A.D. ,() .,..~ D. 1Yu.J1.~ , f~' prlUlOnotary r" on ~ omas Kline riff of Cumberland County on 06/03/2003 . SHERIFF'S RETURN - U.S. CERTIFIED MAIL CASE NO: 2003-02395 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND CENTRAL PA DATA SERVICES INC VS. DAME RICHARD ET AL R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT ,BANCTEC INC by United States Certified Mail postage prepaid, on the 21st day of May ,2003 at 0000:00 HOURS, at 2701 EAST GRAUWYLER ROAD IRVING, TX 75061-3414 a true and attested copy of the attached COMPLAINT & NOTICE Together with The returned receipt card was signed by RANDY WATKINS OS/27/2003 on Additional Comments: Sheriff's Costs: So answers: Docketing Cert Mail Affidavit Surcharge 6.00 5.57 .00 10.00 .00 21.57 R. Thomas Kline Sheriff of Cumberland County Paid by O"BRIEN BARIC SCHERER on 06/03/2003 . Sworn this .;1&03 and sUbscrl~ed to before /J.""'dayof A.D. me (t.,v- Q MLd1AJ .ILIC Pkdthonotary J ,-') fB''"'\., .? '-~ ~r- or-j ~ ~ * 00 Q d ~ -n .~ d) oMH ~n }j~;g ~ !7"'~ ! ~ ~"" ..o~ Cll$ is ~~ > >. or< ~~ X~~" 1.'2 ~ ~ !, ~ g ~ ~~~g~ .... t).~ ~ >- Ql 1: :;;"dl05. " _ 0 _ tIl ?i <(.!!),,"Eo," It oi<:,~l'ltjE ij -g,~'tJQ)~& " CU 0) -g -S (l) G:l ... C\I.D"OE:S~ : .-.i~~sg. 2 ... 1Il0Q)....u:t::. ! ~.~~~fi] II! ,$0:::; ~~ IV .. 1!:t:: 0 _-.L: 'II' Q.'d":>' cu.r..- _ EE"%J::oC . 0 .... - cu 0 :::.:: ,.. Q)',.=: o:t::: ... 1'1' '-':t= ~ !J) <( 0 i.. · .2 ""i 'at ";p ::; ~ a; ~ E ci J a.':: d ..... ~ & ci ~ ooo.)l $ 'i5 " " ~ j~ ~!? .? l'l '" ? :i U i'J "' V1 ~ ;;:j ;'J ('(5 l '8 ~ o ,. '" . . .> ::; 'i1" ~ ~~d ~ .~ i .~ ~ 2:oo::E .j; "a Jll&oo ~ ." a: ~ M .. <0 E l'- 0 1i l'- a: ru u 1ii .D . CJ g '" <0 l'- CJ CJ CJ ~ 0 CJ 0 M '" ;; ::T " ru is' <( ru CJ ~ ~ CJ <Xl r'- (') E ~ (/J a. !l ~ " ~ . " 'i: '" ~ ~.... .-< I-l'<l' OJ'" .-II ~~ <0'" o~t- ,s X ...,E-< , OJ ij) &l 0, t.....f'l co 1; &Ji::;H " '" (") 0 (") ;<> ~ c - ;;:J en <:::: r- - c~ " c;:J - '-' ,-n ~;, ~'_\J " "C':_ - ~J ~ ,_J -' .., --, rio, .) ,- Le " 'm ~~J -- m " -- no, - - .' <::J -' rn ." ,., )> on ,--< m 5:: .,. m Z .,. -< . (J) CD ::> 0- CD ;, c z ::; rn o (J) 51 '-i rn (j) -0 o en 51 ,- (J) rn ~ o rn -0 10 ll> rn '" -0 ~ ~ Cl c:: ~ ::> ll> 3 !1> ll> 8: ~ '" en !J! ll> ::> 0- N 'U + ... S' 5' ijj' (j !ii . -oC'U1J (J) (/)0-" 3-o!e.ia. ;:o;{J)~O 2 41 ill P l<'<>~ Gl -n;:: ~ ~ 00 o "''::=:. ;g c: CENTRAL PA DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. RICHARD DAME d/bla Shared Data Services and BANCTEC, INC., Defendants CIVIL ACTION - LAW 2003-2395 CIVIL TERM PRAECIPE TO ENTER APPEARANCE To Curtis R. Long, Prothonotary: captioned case. Please enter our firm's appearance on behalf of the Def<:ndant Banctec, Inc., in the above Date: June k, 2003 Respectfully Submitted, IRWIN, McKNIGHT & HUGHES Douglas . Miller, E quire Supreme Court J.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certifY that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: DA vrD BARIC, ESQUIRE O'BRIEN, BARIC & SCHERER 17 WEST SOUTH STREET CARLISLE, PA 17013 Date: June ...dIP-, 2003 IRWIN, McKNIGHT & HUGHES ,AU/(", Douglas . Miller, Esquire Supreme Court J.D. No. 83776 West Pomfret Proft:ssional Building 60 West Pomfret Slreet Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant Banctec, Inc. ~ 0 ~ (..oJ '- ...~t -om c:: :-:L-n rnl"n :z: l'il r=- Z:l:J N -r,m zr; C1' Db U>. c. ) ~t: .." .:el....,...\ ),....,., ~c :x ~B :;;;c' r:- orn c: .=.; ~ '" 55 (,.) '< , CENTRAL PA DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW : 2003 - 2395 CIVIL TERM RICHARD DAME d/bla Shared Data Services and BANCTEC, INC., Defendants. : JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Answer with New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. IRWIN, McKNIGHT & HUGHES Miller, Es uire Supreme urt J.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant Banctec, Inc. Date: July 16, 2003 CENTRAL PA DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW 2003 - 2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM TO PLAINTIFF'S COMPLAINT AND NOW this 16th day of July, 2003, comes Defendant BANCTEC, INC. by and through its attorneys, Irwin, McKnight & Hughes, and respectfully files this Answer with New Matter and Counterclaim to the Plaintiffs Complaint dated May 20,2003, and in support thereof aver as follows: 1. The averments of fact contained in paragraph one (1) of the Plaintiffs Complaint are admitted. 2. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph two (2), therefore they are specifically denied and strict proof thereof is demanded at trial. By way of further answer, the business address for Shared Data Services is PNB 204, 60 Chelsea Corners, Chelsea, Alabama 35043. 3. The averments of fact contained in paragraph three (3) are admitted. 4. The averments of fact contained in paragraph four (4) are admitted in part and denied in part. Upon information and belief it is admitted that Plaintiff provides computer consulting services. The remaining averments in paragraph four (4), including any inference that Plaintiff provided such services directly to answering Defendant or that such services were performed in a reasonable and workmanlike manner, are specifically denied and strict proof thereof demanded at trial. 5. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph five (5), therefore they are specifically denied and strict proof thereof is demanded at trial. 6. The averments of fact contained in paragraph six (6) are admitted. 7. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph seven (7), therefore they are specifically denied and strict proof thereof is demanded at trial. 8. The averments contained in paragraph eight (8) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 9. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph nine (9), therefore they are specifically denied and strict proof thereof is demanded at trial. 2 10. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph ten (10), therefore they are specifically denied and strict proof thereof is demanded at trial. 11. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph eleven (11), therefore they are specifically denied and strict proof thereof is demanded at trial. 12. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph twelve (12), therefore they are specifically denied and strict proof thereof is demanded at trial. 13. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph thirteen (13), therefore they are specifically denied and strict proofthereofis demanded at trial. 14. The averments contained in paragraph fourteen (14) are conclusions of law to which no response is required. To the extent that a response is required, the averments, including any inference that Plaintiff provided such services directly to answering Defendant or that such services were performed in a reasonable and workmanlike manner, are specifically denied and strict proof thereof is demanded at trial. 15. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph fifteen (15), therefore they are specifically denied and strict proof thereof is demanded at trial. 3 COUNT I - BREACH OF CONTRACT 16. The answers of answering Defendant to paragraphs one (1) through fifteen (15) are made a part hereof and incorporated herein by reference. 17. The averments contained in paragraph seventeen (17) are conclusions of law to which no response is required. To the extent that a response is required, the averments, including any inference that Plaintiff provided such services directly to answering Defendant or that such services were performed in a reasonable and workmanlike manner, are specifically denied and strict proof thereof is demanded at trial. 18. The averments contained in paragraph eighteen (18) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. COUNT II - OUANTUM MERUIT 19. The answers of answering Defendant to paragraphs one (1) through eighteen (18) are made a part hereof and incorporated herein by reference. 4 20. The averments contained in paragraph twenty (20) are specifically denied and strict proof thereof is demanded at trial. 21. The averments contained in paragraph twenty-one (21) are conclusions of law to which no response is required. To the extent that a response is required, the averments, including any inference that Plaintiff provided such services directly to answering Defendant or that such services were performed in a reasonable and workmanlike manner, are specifically denied and strict proof thereof is demanded at trial. 22. The averments contained in paragraph twenty-two (22) are conclusions of law to which no response is required. To the extent that a response is required, the averments, including any inference that Plaintiff provided such services directly to answering Defendant or that such services were performed in a reasonable and workmanlike manner, are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. COUNT III - CONVERSION 23. The answers of answering Defendant to paragraphs one (1) through twenty-two (22) are made a part hereof and incorporated herein by reference. 5 24. 28. The averments contained in paragraphs twenty-four (24) through twenty- eight (28) relate to a Defendant other than Answering Defendant, and therefore no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. COUNT IV - INTENTIONAL INTERFERENCE WITH CONTRACT 29. The answers of answering Defendant to paragraphs one (1) through twenty-eight (28) are made a part hereof and incorporated herein by reference. 30. - 37. The averments contained in paragraphs thirty (30) through thirty-seven (37) relate to a Defendant other than Answering Defendant, and therefore no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. 6 NEW MATTER 38. The averments offact contained in the Answers of Defendant BancTec, Inc. to the Plaintiffs Complaint are hereby incorporated by reference and are made part of this New Matter. 39. The Staffing Services Agreement ("Agreement") attached as Exhibit "A" to Plaintiffs Complaint was entered into by Answering Defendant and Shared Data Services. 40. Plaintiff was neither a party to nor a signatory of the Agreement. 41. All invoices submitted to and paid by Answering Defendant were from Shared Data Services and all contact and communication with regard to the matters and services covered by the Agreement were with Shared Data Services. 42. Answering Defendant and Plaintiff have not and do not have a contractual relationship. 43. Plaintiffs Complaint fails to state claims or causes of action upon which relief can be granted against Answering Defendant. 44. Upon information and belief, Plaintiff represented itself to Shared Data Services as a computer consulting service having expertise in both Captiva and Visual Basic programming languages. 7 . , 45. In fact, Plaintiff did not have the expertise as represented, and upon information and belief some of Plaintiff's services were below both industry standards and the standards required for the particular projects in which Plaintiff was involved. 46. Upon information and belief, programming services and software provided by Plaintiff were defective, were not performed in a reasonable and workmanlike manner, and failed to work as represented. 47. Answering Defendant's project for the Alabama Department of Industrial Relations ("ALDIR") required an acceptance test in January 2002 to be performed on the software designed and prepared for the project. 48. Upon information and belief, the software did not pass the acceptance test as a result of the defective services and work provided by Plaintiff. 49. As a result of the failed acceptance test in January 2002, Answering Defendant was forced to provide its own engineers and employees in order to recode the defective software, fix the programming, and correct the deficiencies of Plaintiff's work and ensure that the project was completed in a timely manner without further delay and that the clients of Answering Defendant did not terminate their contracts and relationships with Answering Defendant. 50. Answering Defendant's project for ALDIR had a drop dead deadline of August 31,2002, which deadline could not have been met absent the additional funds and resources expended by Answering Defendant to cover and correct the deficiencies in Plaintiff's work. 8 . . 51. Upon information and belief, Plaintiff was terminated by Shared Data Services in February 2002 and informed that its programming did not function and that Defendants were forced to expend their own resources to recode the software and correct the deficiencies of Plaintiff s work. 52. All or some of Plaintiffs claimed damages are attributable to persons and/or causes other than Answering Defendant. 53. Plaintiffs claims may be barred and/or limited by the failure to mitigate or to properly mitigate damages. WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. NEW MATTER PURSUANT TO Pa.R.C.P. No. 22SUd) 54. The averments of fact contained in the Answers and New Matter to the Complaint are hereby incorporated by reference and are made part of this New Matter Pursuant to Pa.R.C.P. No. 2252(d) to the Complaint of the Plaintiff. 55. Defendant BancTec, Inc. asserts this New Matter pursuant to Pa. R. C. P. No. 2252(d) and thereby joins Defendant Richard Dame d/b/a Shared Data Services as an Additional Defendant in this action on the basis that follows. 9 56. Upon information and belief, Shared Data Services and Plaintiff contracted for Plaintiff to provide certain computing services to Shared Data Services, but Plaintiff did not contract with Answering Defendant. 57. Upon information and belief, all invoices from Plaintiff were submitted to Shared Data Services for payment. 58. Shared Data Services and its employees and agents represented to Answering Defendant that the software did not pass the January 2002 acceptance test as a result of the defective services and work provided by Plaintiff. 59. Upon information and belief, Plaintiff was terminated by Shared Data Services in February 2002 and informed that its programming did not function as promised. 60. If Plaintiff establishes that it suffered injuries, damages, and monies due as alleged in its Complaint, which allegations Answering Defendant specifically denies, said injuries and damages were caused solely by the negligence, carelessness, or breach of Additional Defendant, Richard Dame d/bla Shared Data Services, by the acts as described in the preceding paragraphs. 61. As a result of the aforesaid actions, Additional Defendant, Richard Dame d/b/a Shared Data Services, is solely liable to Plaintiff for any alleged injuries and damages it may have suffered and for any monies due Plaintiff. 62. If as a result of the matters alleged in Plaintiff s Complaint, Answering Defendant is held liable to Plaintiff for all or part of such injuries or damages as it may have sustained or for 10 . . any monies due Plaintiff, Additional Defendant is the party primarily liable for such injuries, damages and monies due, and is liable over to Defendant BancTec, Inc. by way of contribution or indemnification, for all such damages as may be required to pay to Plaintiff. 63. In the alternative, if as a result of the matters alleged in Plaintiff's Complaint, Defendant BancTec, Inc. is held liable to Plaintiff for all or part of such injuries or damages as it may have sustained or for any monies due Plaintiff, Additional Defendant is jointly and severally liable to Plaintiff based upon the foregoing allegations for such injuries, damages and monies due, and is liable over to Defendant BancTec, Inc. by way of contribution for all such damages Defendants may be required to pay to Plaintiffs. WHEREFORE, Defendant BancTec, Inc. respectfully requests that this Honorable Court: a. Enter a judgment in its favor and against Additional Defendant, Richard Dame d/bla Shared Data Services, as solely liable in this matter, if there is any liability to Plaintiff; b. Enter a judgment over and against Additional Defendant, Richard Dame d/b/a Shared Data Services, by way of indemnification and/or contribution for the amount recovered by Plaintiff against Defendants, together with costs, in the event that a verdict is recovered by Plaintiff; or c. Enter a judgment in its favor and against Additional Defendant, Richard Dame d/bla Shared Data Services, for damages as alleged above. 11 . . COUNTERCLAIM 64. The averments of fact contained in the Answers and New Matter to the Complaint are hereby incorporated by reference and are made part of this Counterclaim. 65. Answering Defendant's project for ALDIR required an acceptance test in January 2002 to be performed on the software designed and prepared for the project, and upon information and belief, the software did not pass the acceptance test as a result of the defective services and work provided by Plaintiff. 66. Answering Defendant was then forced to provide its own engmeers and employees in order to recode the defective software, fix the programming, and correct the deficiencies of Plaintiffs work and ensure that the project was completed in a timely marmer without further delay and that the clients of Answering Defendant did not terminate their contracts and relationships with Answering Defendant. 67. Answering Defendant's project for ALDIR had a drop dead deadline of August 31, 2002, after which it would be in default under its contract. 68. The deadline of August 31, 2003, could not have been met absent the additional funds and resources expended by Answering Defendant to cover and correct the deficiencies in Plaintiffs work. 69. Furthermore, as a result of the defective services and work provided by Plaintiff, the software could not be recoded and tested for acceptance prior to June 30, 2002. 12 . . 70. As a result ofthe inability to recode the software and test it for acceptance prior to June 30, 2002, Answering Defendant was required by the terms of its performance bond to post an irrevocable letter of credit ("LOC"). 71. The irrevocable LOC was not released for 276 days during which time Answering Defendant paid interest at the rate of 3 .25%. 72. The expenses incurred by Additional Defendant as a result of Plaintiffs defective work include, but are not limited to the following: a. Payment of the salaries of the engineers and other employees sent to complete the ALDIR project whose work would have otherwise been used on other projects as well as payment for temporary lodging, meals, and related additional expenses for those engineers and other employees sent to complete the projects, which expenses from March 2002 through August 2002 are at least $381,071.00; b. Interest, costs and expenses incurred as a result of the requirement of Answering Defendant be to post an irrevocable LOC, which expenses were in the amount of$38,343.51; c. Lost profits of Answering Defendant; and d. Other consequential and related costs and expense incurred by Answering Defendant as a result of Plaintiffs failure to provide a functioning computer program. WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter in an amount at least equal to 13 , . $419,414.51, together with costs, interest, reasonable attorney fees and such other and further relief as this Court deems just. Respectfully Submitted, IRWIN, McKNIGHT & HUGHES By: Douglas G. Supreme Co ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant BancTec, Inc. Dated: July 16, 2003 14 . . . ~, . .. VERIFICATION The foregoing document is based upon information which has been gathered by corporate counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. BANCT~d I By: Date: }....Jy / 1- I ,2003 . . . , . CERTIFICA TE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: David A. Baric, Esquire 17 West South Street Carlisle, P A 17013 (Attorney for Plaintiff) Shared Data Services Attn: Richard Dame PNB 204, 60 Chelsea Corners Chelsea, Alabama 35043 (Defendant) Date: July 16, 2003 IRWIN, McKNIGHT & HUGHES Douglas G. iller, Esquire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant BancTec, Inc. ~ r o c ~~~ -c.:1:--j" n'e', "':;"'-, -~71 C/: r:..; ~:~ :t-,. ~~;- . ., -, . r--, ,.,0',> . . "-j1 c. -~. j .'..1 ,. q J-~"fi .,:) :Tl ') tv "";, j; -< II CENTRAL PA DATA SERVICES, INC., Plaintiff. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2003-2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : CIVIL ACTION-LAW PRAECIPE TO ENTER DEF AUL T JUDGMENT PURSUANT TO Pa.R.C.P. 1037 TO THE PROTHONOTARY: Please enter judgment in favor ofthe Plaintiff, Central P A Data Services, Inc. and against the Defendant, Richard Dame, for failure to file an answer to the Complaint of Plaintiff. A true and correct copy of the return of service from the Sheriff of Cumberland County is appended hereto as Exhibit "A." A true and correct copy of the Notice of Default is appended hereto as Exhibit "B." A true and correct copy of the Certificate of Mailing for the Notice of Default is appended hereto as Exhibit "C." I certify that the Notice of Default was given in accordance with Pa.R.C.P.237.1. Plaintiff requests judgment in the amount of$I07,047.02 as set forth in the Complaint. Respectfully submitted, OC?Jcc::!:R David A. Baric, Esquire J.D. # 44853 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 dab.dir/corporate/centralpadata/damedefault. pra SHERIFF'S RETURN - U.S. CERTIFIED MAIL CA?E NO: 2003-02395 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND CENTRAL PA DATA SERVICES INC VS. DAME RICHARDET AL R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT ,DAME RICHARD D/B/A SHARED DATA SERVICES by United States Certified Mail postage prepaid, on the 21st day of May ,2003 at 0000:00 HOURS, at 6044 CAMELOT COURT MONTGOMERY, AL 36117-2554 , a true and attested copy of the attached COMPLAINT & NOTICE Together with The returned receipt card was signed by RICHARD DAME OS/27/2003 on Additional Comments: Docketing Cert Mail Affidavit Surcharge 18.00 5.57 .00 10.00 .00 33.57 /J ./"/'1 / ./ .'j /' ... I . /.... ./ / Sheriff's Costs: .c: R. 'r omas Kl ine ~r~~Srulriff of Cumberland V --------- County Paid by O'BRIEN BARIC SCHERER on 06/03/2003 . Sworn and subscribed to before me this day of A.D. Prothonotary EXHIBIT "A" ___.11 CENTRAL PA DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYL VANIA V. : NO. 2003-2395 CIVIL TERM RICHARD DAME d/b/a Shared Data : CIVIL ACTION-LAW Services and BANCTEC, INC., Defendants. I I I I I II I I i i r II I, I ! TO: Richard Dame d/b/a Shared Data Services 6044 Camelot Court Montgomery, AL 36117-2554 Date of Notice: June 12,2003 IMPORT ANT'NOTICE YOU ARE IN DEF AUL T BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAYBE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR 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 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 ;;;;:]I211:R David A. Baric, Esquire 17 West South Street Carlisle, P A 17013 (717) 249-6873 dab.dir/eorporate/eentralpadata/damedefa ult.Dte EXHIBIT "B" u.s. POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL. Does NOT PROVIDE FOR INSURANCE-POSTMASTER RCY'"Br~ l' 6ari U=4- Schut{ 11 \A)'t~+ Bouth ~~ tarhs\f,., PJ\ IlD~ .-~~ ~~""of""'i~"'dd"..edlO' c~ ?~)~; \ "'Ichord lAImt. .%V~ ~.~j d I.\? I a ~avtd Dn1a '~~ loD44 c.amtlot Court- ~~~D~~n~~:91 AL ~\n - M54- . '~, . .".~ EXHIBIT "e" " " " " " :5~ &lc::J "'- liIc..o ~c::J N ~<IJ ~! .~ .~ ~ ~ ~ ~:l t... n c:: c:: OJ> . :DZ :::0 (/) :x -,"tI. Q--...l_D C::NOVl_-C z. -,''::'0 -4 'wm en ". .... W "0 OJ> OJ> " '" , /. b'ti :;:,," il CERTIFICATE OF SERVICE I hereby certify that on July n, 2003, I, David A. Baric, Esquire, of O'Brien, Baric & Scherer did serve a copy of the Praecipe To Enter Default Judgment Pursuant To Pa.R.C.P. 1037, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Richard Dame d/b/a Shared Data Services 6044 Camelot Court Montgomery, AL 36117-2554 ~tJ{. David A. Baric, Esquire " CENTRAL PA DATA SERVICES, INC., Plaintiff, V. RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2003-2395 CIVIL TERM : CIVIL ACTION-LAW NOTICE OF JUDGMENT PURSUANT TO Pa.R.c.P. 236 TO: Richard Dame d/b/a Shared Data Services 6044 Camelot Court Montgomery, AL 36117-2554 Notice is hereby given to you of entry of a judgment against you in the above matter. Date: Prothonotary ~~~~ - ~ Q f \) ~ 0 ~2~if c) ~~-~ ....~,- -- t.- ' ~ ~ ..--..., -J .-'"". .. -" (~ - T.l " -, " ~l co 0' ~ -~ '. c= ., " !~ ,,, '" ~:: I 0' f o f ~ 2. \ o?f ~ V\ ~ 2 0, ~ c. ~ -,J o o ru ru -'" "... o o o o -,J 0> c.n o tr ru -,J " 0> .. :II DDlil'" !! 3':II'" Q. ~ ~ ~ ~. il. B- .' 3i '" aI ~H~ ~ ~ ~ -< ~ ~ ~ l ODD ":II\!, o~"O i> 3 m :II ~ '" . ., '9:- o <f " ~ '" ~ " ~ c. 0' . HN!ii' ~ C3 ::l 5'H~ cO !in Ul . >-3ei' X H G)::l -....l\i() lJ\Ol ~~ If--' wro "'"'1 H "'"'" o OJ p. ...'~J:: '" . . .--P ?i Q~lS~ib' ~ ~ g~st;a33 ~ }> ......=rw-<.f:>."'O .11 0. ~s:;g ~s: ii ~ ......Ql,Q).....:IJC1l '" lI> ano:::::lCII.. __" ~ ~1l)~35:~ ~ a. :;;;;a..... CD C1 Ul i! R I'll 8"!S. Dl (j)...... . -0 c::::::lQ.~ AI- ~g.3o.0~l\J -II (DCb_Ol(1)Ql -0 g~~;fa. ~ ~ C) 0 al.~ (.r,) '1;i!- 3 ^nJ 00'<. iZQ..a.~ fjj'~ ~ . _'-+:::::l 0.(1) ~ ::r- 0 (l) 0 .& Cb,<:f~o .. tTii o ::;:ijj" g- o " 'rn "- :-ro:€ ~ ~.f " ~o(l ci ~Ql Z Y~(I)~ 1ilUiQ..E Lt~~~ UJ U ~ UJ (f) ~ ~ <f) o 0- <f) UJ \< '" (f) Q UJ t: z ~ . 1') .0 ,'!l ,5 ,!;; .,. + 0- N '0 C '" ui <f) Q) ~ '0 '0 '" ai E '" c ~ ::> ~ 'E 'C 0. Q) <f) '" Q) a:: l-- Z UJ ::2 >-, tx -c:;: CL l'--, c ,,,"? .e;,_ ,~ ~J,.l C1_' iC..."~ ~f; r.':1 CJ :2 U.l C~ :::J ~__ .::l: C)O U " Q) '0 C Q) (f) . ", () II CENTRAL PA DATA SERVICES, INC., Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2003-2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : CIVIL ACTION-LAW PLAINTIFF'S REPLY TO NEW MATTER OF BANCTEC, INC. 38. The averments off act set forth in Plaintiffs complaint are incorporated herein by reference as though set forth at length. 39. Denied as stated. The Staffing Services Agreement is a writing which speaks for itself and Plaintiff denies any characterization of that writing by BancTec. 40. Admitted in part and denied in part. It is admitted only that Plaintiff did not sign the Agreement. The remaining averments are denied. 41. Denied. To the contrary, BancTec directed that invoices for services rendered by Plaintiff to BancTec be directed to a particular purchase order number established by BancTec for Plaintiff. 42, To the extent this averment is a conclusion oflaw, no response is required. To the extent a response may be required, the averments are denied. 43. To the extent this averment is a conclusion oflaw, no response is required. To the extent a response may be required, the averments are denied. 44. Denied. Plaintiff is a form ware specialist and forms processing specialist. II 45. Denied. To the contrary, Plaintiff performed every task assigned to it within accepted industry standards and practices. 46. Denied. To the contrary, every task performed by Plaintiff was done in a reasonable and workmanlike marmer. 47. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of these averments and they are, therefore, denied. 48. Denied. To the contrary, Plaintiff performed very task assigned to it in a reasonable and workmanlike marmer. 49. Denied. To the contrary, any failure and expense so incurred were the direct and proximate result of acts and omissions of BancTec, Shared Data Services and individuals and entities other than Plaintiff. 50. Denied. To the contrary, Plaintiffs work was performed in a reasonable and workmanlike marmer. To the extent BancTec expended "additional funds and resources", which is denied, such expenditures were the direct and proximate result of acts and omissions of BancTec, Shared Data Services and individuals and entities other than Plaintiff. 51. Denied. To the contrary, Plaintiff was informed that it would not be permitted to complete the ALDIR project. At no time was Plaintiff informed that BancTec would be required to expend its own "resources" or "recode" the software because of any alleged deficiency in the work perfonned by Plaintiff. 52. Denied. Plaintiff s damages are attributable to the acts of the Defendants in this matter. " I CERTIFICATE OF SERVICE I hereby certify that on August G"', 2003, David A. Baric, Esquire, of O'Brien, Baric & Scherer, did serve a copy of Plaintiffs Reply To New Matter of BancTec, Inc. , by first class U.S. mail, postage prepaid, to the party listed below, as follows: Douglas Miller, Esquire Irwin, McKnight & Hughes 60 West South Street Carlisle, Pennsylvania 17013 David A. Baric, Esquire 45. Denied. To the contrary, Plaintiff performed every task assigned to it within accepted industry standards and practices. 46. Denied. To the contrary, every task performed by Plaintiff was done in a reasonable and workmanlike marmer. 47. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of these averments and they are, therefore, denied. 48. Denied. To the contrary, Plaintiff performed very task assigned to it in a reasonable and workmanlike marmer. 49. Denied. To the contrary, any failure and expense so incurred were the direct and proximate result of acts and omissions of BancTec, Shared Data Services and individuals and entities other than Plaintiff. 50. Denied. To the contrary, Plaintiffs work was performed in a reasonable and workmanlike marmer. To the extent BancTec expended "additional funds and resources", which is denied, such expenditures were the direct and proximate result of acts and omissions of BancTec, Shared Data Services and individuals and entities other than Plaintiff. 51. Denied. To the contrary, Plaintiff was informed that it would not be permitted to complete the ALDIR project. At no time was Plaintiff informed that BancTec would be required to expend its own "resources" or "recode" the software because of any alleged deficiency in the work performed by Plaintiff. 52, Denied. Plaintiffs damages are attributable to the acts of the Defendants in this matter, 53. These averments constitute conclusions of law to which no response is required. i I! To the extent a response may be required, the averments are denied. II 54.- 55. These averments are directed to a party other than Plaintiff and no response is I i required. 59. Denied. To the contrary, Shared Data Services directed Plaintiffto not return and informed Plaintiff that ALDIR had made that decision. 60. Denied. To the contrary, BancTec was a contributing and participating party in causing the damages incurred by Plaintiff. 61, Denied. To the contrary, BancTec was a contributing and participating party in causing the damages incurred by Plaintiff. 62. These averments are directed to a party other than Plaintiff and no response is required. WHEREFORE, Plaintiffrequests that judgment be entered in its favor and against Defendants together with costs and expenses. Respectfully submitted, David A. Baric, Esquire J.D. # 44853 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 dab.dir/eorporate/eentralpadata/replytouewmatter.pld II CERTIFICATE OF SERVICE I hereby certify that on August G', 2003, David A. Baric, Esquire, of O'Brien, Baric & Scherer, did serve a copy of Plaintiff's Reply To New Matter of BancTec, Inc. , by first class U.S. mail, postage prepaid, to the party listed below, as follows: Douglas Miller, Esquire Irwin, McKnight & Hughes 60 West South Street Carlisle, Pennsylvania 17013 David A. Baric, Esquire CJ ~,\ C .. '".. -;:) , [i,:i <- ,~ E> ; ~-~ , ..- );- , / , ~ -,~ -<. ( ) I ::.::: il 'I . CENTRAL PA DATA SERVICES, INC., Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2003-2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : CIVIL ACTION-LAW TO: Douglas Miller, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, Pennsylvania 17013 You are hereby notified that you have twenty (20) days in which to plead to the enclosed Preliminary Objections To Counterclaim OfBancTec, Inc. or a Default Judgment may be entered against you. Date: .f15jo ~ 'BRIEN, BARIC &:~R " l/{ d-. David A. Baric, Esquire J.D. #44853 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 !I I' CENTRAL PA DATA SERVICES, INC., Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA V. : NO. 2003-2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : CIVIL ACTION-LAW II PRELIMINARY OBJECTIONS TO COUNTERCLAIM OF BANCTEC. INC. AND NOW, comes Plaintiff, Central Pa Data Services, Inc. ("Central Pa"), by and through its attorneys, O'BRIEN, BARIC & SCHERER, and files the within Preliminary Objections to the Counterclaim of BancTec, Inc. and, in support thereof, sets forth the following: 1. On or about July 16,2003, Bane Tee filed is Answer with New Matter and Counterclaim in this matter, a true and correct copy of the Answer with New Matter and Counterclaim is attached hereto as Exhibit "A" and is incorporated be reference. Failure to Conform to Law or Rule of Court 2. Central Pa incorporates by reference paragraph one as though set forth at length. 3. BancTec alleges that it was required to expend money so its client, ALDIR, would not "terminate their contracts..." See, Answer, New Matter and Counterclaim ofBancTec at ~66. 4. BancTec makes various other references to contracts, performance bonds, letters of credit in its Counterclaim. See, Answer with New Matter and Counterclaim of Bane Tee at ~ 66,70,71. 5. Pa.R.C.P. 1019(1) requires any writing upon which a claim is based to be attached to the pleading. 6. BancTec has failed to attach contracts and other writings upon which it bases its claim in violation ofPa.R.C.P. 1019(1). WHEREFORE, Plaintiff request that the Counterclaim of BancTec be dismissed with prejudice and Plaintiff be awarded its costs and expenses. Insufficient Specificity 7. Central Pa incorporates paragraphs one through six as though set forth at length. 8. By failing to attach writings upon which it bases its claims, BancTec has failed to provide sufficient specificity in its Counterclaim. 9. BancTec has prayed that it be awarded reasonable attorney fees on its Counterclaim. 10. Nowhere in its Counterclaim does BancTec identify any contractual or statutory basis for the right to recover its attorney fees. 11. BancTec has failed to identify the cause of action under which it is proceeding on its counterclaim. WHEREFORE, Plaintiffrequests that the Counterclaim of BancTec be dismissed with prejudice and that Plaintiff be awarded its costs and expenses. Demurrer 12. Plaintiff incorporates by reference paragraphs one through twelve (12) as though set forth at length. 13. BancTec has failed to identify the cause of action under which it is proceeding. 14. Absent such an identification of the cause of action under which it proceeds, it is not possible to determine whether BancTec has pled the elements of its claim. II WHEREFORE, Plaintiffrequests that the Counterclaim of BancTec be dismissed with prejudice and that Plaintiff be awarded its costs and expenses. Respectfully submitted, ~EN, BARIC & SC ~j1?t David A. Baric, Esquire J.D. # 44853 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff dab.dir/corponte/eeutralpadata/preliminaryobjeetiou.pld II VERIFICATION I verify that the statements made in the foregoing Preliminary Objections To Counterclaim Of Bane Tee, Inc. are true and correct to the best of my knowledge, information and belief. This verification is signed by David A. Baric, Esquire, Attorney for Plaintiff and is based upon the statements provided by Plaintiff, as well as documents reviewed by the undersigned as attorney for Plaintiff. This verification will be substituted and ratified by a verification signed by the Plaintiff who is presently unavailable to sign said verification. I undersigned that false statements herein are made subject to penalties of 18 Pa.C.S. 94904, relating to unsworn falsifications to authorities. David A. Baric, Esquire Dated: f 'l () ~ , .' CENTRAL P A DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW : 2003 - 2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Answer with New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. IRWIN, McKNIGHT & HUGHES Mill1LtP& Supreme urt J.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant Banctec, Inc. Date: July 16,2003 EXHIBIT "A" 1'RUE COpy FROM RECORD In Testimony wnereof, I here unto set my hanc and the seal 01 said ~~. at :~. ~~3 Thj~~ day 0 u.-(), .' ~' '. Prothon~ , , .' CENTRAL PA DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW - 2003 - 2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM TO PLAINTIFF'S COMPLAINT AND NOW this 16th day of July, 2003, comes Defendant BANCTEC, INC. by and through its attorneys, Irwin, McKnight & Hughes, and respectfully files this Answer with New Matter and Counterclaim to the Plaintiffs Complaint dated May 20, 2003, and in support thereof aver as follows: 1. The averments of fact contained in paragraph one (1) of the Plaintiffs Complaint are admitted. 2. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph two (2), therefore they are specifically denied and strict proof thereof is demanded at trial. By way of further answer, the business address for Shared Data Services is PNB 204, 60 Chelsea Comers, Chelsea, Alabama 35043. 3. The averments of fact contained in paragraph three (3) are admitted. 2 , .' .' 4. The averments of fact contained in paragraph four (4) are admitted in part and denied in part. Upon information and belief it is admitted that Plaintiff provides computer - consulting services. The remaining averments in paragraph four (4), including any inference that Plaintiff provided such services directly to answering Defendant or that such services were performed in a reasonable and workmanlike manner, are specifically denied and strict proof thereof demanded at trial. 5. After reasonable investigation, answering Defendant is without knowledge or irtformation sufficient to form a belief as to the truth of the averments contained in paragraph five (5), therefore they are specifically denied and strict proof thereof is demanded at trial. 6. The averments of fact contained in paragraph six (6) are admitted. 7. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph seven (7), therefore they are specifically denied and strict proof thereof is demanded at trial. 8. The averments contained in paragraph eight (8) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 9. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph nine (9), therefore they are specifically denied and strict proof thereof is demanded at trial. 2 , ! 10. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph ten , (10), therefore they are specifically denied and strict proof thereof is demanded at trial. 11. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph eleven (11), therefore they are specifically denied and strict proof thereof is demanded at trial. 12. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph twelve (12), therefore they are specifically denied and strict proof thereof is demanded at trial. 13. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph thirteen (13), therefore they are specifically denied and strict proof thereof is demanded at trial. 14. The averments contained in paragraph fourteen (14) are conclusions of law to which no response is required. To the extent that a response is required, the averments, including any inference that Plaintiff provided such services directly to answering Defendant or that such services were performed in a reasonable and workmanlike manner, are specifically denied and strict proof thereof is demanded at trial. 15. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph fifteen (15), therefore they are specifically denied and strict proof thereof is demanded at trial. 3 , " COUNT I - BREACH OF CONTRACT 16. The answers of answering Defendant to paragraphs one (1) through fifteen (15) are made a part hereof and incorporated herein by reference. 17. The averments contained in paragraph seventeen (17) are conclusions of law to which no response is required. To the extent that a response is required, the averments, including any inference that Plaintiff provided such services directly to answering Defendant or that such services were performed in a reasonable and workmanlike marmer, are specifically denied and strict proof thereof is demanded at trial. 18. The averments contained in paragraph eighteen (18) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. COUNT 11- OUAL"I/TUM MERUIT 19. The answers of answering Defendant to paragraphs one (1) through eighteen (18) are made a part hereof and incorporated herein by reference. 4 , 20. The averments contained in paragraph twenty (20) are specifically denied and strict proof thereof is demanded at trial. 21. The averments contained in paragraph twenty-one (21) are conclusions of law to which no response is required. To the extent that a response is required, the averments, including any inference that Plaintiff provided such services directly to answering Defendant or that such services were performed in a reasonable and workmanlike marmer, are specifically denied and strict proof thereof is demanded at trial. 22. The averments contained in paragraph twenty-two (22) are conclusions of law to which no response is required. To the extent that a response is required, the averments, including any inference that Plaintiff provided such services directly to answering Defendant or that such services were performed in a reasonable and workmanlike marmer, are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. COUNT III - CONVERSION 23. The answers of answering Defendant to paragraphs one (1) through twenty-two (22) are made a part hereof and incorporated herein by reference. 5 , .' 24. - 28. The averments contained in paragraphs twenty-four (24) through twenty- eight (28) relate to a Defendant other than Answering Defendant, and therefore no response is , required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. COUNT IV - INTENTIONAL INTERFERENCE WITH CONTRACT 29. The answers of answering Defendant to paragraphs one (I) through twenty-eight (28) are made a part hereof and incorporated herein by reference. 30. - 37. The averments contained in paragraphs thirty (30) through thirty-seven (37) relate to a Defendant other than Answering Defendant, and therefore no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. 6 , .' .J NEW MATTER - 38. The averments offact contained in the Answers of Defendant BancTec, Inc. to the Plaintiffs Complaint are hereby incorporated by reference and are made part of this New Matter. 39. The Staffmg Services Agreement ("Agreement") attached as Exhibit "A" to Plaintiffs Complaint was entered into by Answering Defendant and Shared Data Services. 40. Plaintiff was neither a party to nor a signatory of the Agreement. 41. All invoices submitted to and paid by Answering Defendant were from Shared Data Services and all contact and communication with regard to the matters and services covered by the Agreement were with Shared Data Services. 42. Answering Defendant and Plaintiff have not and do not have a contractual relationship. 43. Plaintiffs Complaint fails to state claims or causes of action upon which relief can be granted against Answering Defendant. 44. Upon information and belief, Plaintiff represented itself to Shared Data Services as a computer consulting service having expertise in both Captiva and Visual Basic programming languages. 7 45. In fact, Plaintiff did not have the expertise as represented, and upon information and belief some of Plaintiff's services were below both industry standards and the standards - required for the particular projects in which Plaintiff was involved. 46. Upon information and belief, programming services and software provided by Plaintiff were defective, were not performed in a reasonable and workmanlike marmer, and failed to work as represented. 47. Answering Defendant's project for the Alabama Department of Industrial Relations ("ALDIR") required an acceptance test in January 2002 to be performed on the software designed and prepared for the project. 48. Upon information and belief, the software did not pass the acceptance test as a result of the defective services and work provided by Plaintiff. 49. As a result of the failed acceptance test in January 2002, Answering Defendant was forc~d to provide its own engineers and employees in order to recode the defective software, fix the programming, and correct the deficiencies of Plaintiff's work and ensure that the project was completed in a timely marmer without further delay and that the clients of Answering Defendant did not terminate their contracts and relationships with Answering Defendant. 50. Answering Defendant's project for ALDIR had a drop dead deadline of August 31, 2002, which deadline could not have been met absent the additional funds and resources expended by Answering Defendant to cover and correct the deficiencies in Plaintiff's work. 8 .. 51. Upon information and belief, Plaintiff was terminated by Shared Data Services in February 2002 and informed that its programming did not function and that Defendants were - forced to expend their own resources to recode the software and correct the deficiencies of Plaintiffs work. 52. All or some of Plaintiffs claimed damages are attributable to persons and/or causes other than Answering Defendant. 53. Plaintiffs claims may be barred and/or lirri.ited by the failure to mitigate or to properly mitigate damages. WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. NEW MATTER PURSUANT TO Pa.R.C.P. No. 2252(d) 54. The averments offact contained in the Answers and New Matter to the Complaint are hereby incorporated by reference and are made part of this New Matter Pursuant to Pa.R.C.P. No. 2252(d) to the Complaint of the Plaintiff. 55. Defendant BancTec, Inc. asserts this New Matter pursuant to Pa. R. C. P. No. 2252(d) and thereby joins Defendant Richard Dame d/b/a Shared Data Services as an Additional Defendant in this action on the basis that follows. 9 , .. 56. Upon information and belief, Shared Data Services and Plaintiff contracted for Plaintiff to provide certain computing services to Shared Data Services, but Plaintiff did not - contract with Answering Defendant. 57. Upon information and belief, all invoices from Plaintiff were submitted to Shared Data Services for payment. 58. Shared Data Services and its employees and agents represented to Answering Defendant that the software did not pass the January 2002 acceptance test as a result of the defective services and work provided by Plaintiff. 59. Uponinforrnation and belief, Plaintiff was terminated by Shared Data Services in February 2002 and informed that its programming did not function as promised. 60. If Plaintiff establishes that it suffered injuries, damages, and monies due as alleged in its Complaint, which allegations Answering Defendant specifically denies, said injuries and damages were caused solely by the negligence, carelessness, or breach of Additional Defendant, Richard Dame d/b/a Shared Data Services, by the acts as described in the preceding paragraphs. 61. As a result of the aforesaid actions, Additional Defendant, Richard Dame d/b/a Shared Data Services, is solely liable to Plaintiff for any alleged injuries and damages it may have suffered and for any monies due Plaintiff. 62. If as a result of the matters alleged in Plaintiffs Complaint, Answering Defendant is held liable to Plaintiff for all or part of such injuries or damages as it may have sustained or for 10 l' .' any monies due Plaintiff, Additional Defendant is the party primarily liable for such injuries, damages and monies due, and is liable over to Defendant BancTec, Inc. by way of contribution or indemnification, for all such damages as may be required to pay to Plaintiff. 63. In the alternative, if as a result of the matters alleged in Plaintiff s Complaint, Defendant BancTec, Inc. is held liable to Plaintiff for all or part of such irijuries or damages as it may have sustained or for any monies due Plaintiff, Additional Defendant is jointly and severally liable to Plaintiff based upon the foregoing allegations for such injuries, damages and monies due, and is liable over to Defendant BancTec, Inc. by way 'of contribution for all such damages Defendants may be required to pay to Plaintiffs. WHEREFORE, Defendant BancTec, Inc. respectfully requests that this Honorable Court: a. Enter a judgment in its favor and against Additional Defendant, Richard Dame d/b/a Shared Data Services, as solely liable in this matter, if there is any liability to Plaintiff; b. Enter a judgment over and against Additional Defendant, Richard Dame d/b/a Shared Data Services, by way of indemnification and/or contribution for the amount recovered by Plaintiff against Defendants, together with costs, in the event that a verdict is recovered by Plaintiff; or c. Enter a judgment in its favor and against Additional Defendant, Richard Dame d/b/a Shared Data Services, for damages as alleged above. 11 II , , . . COUNTERCLAIM 64. The averments of fact contained in the Answers and New Matter to the Complaint are hereby incorporated by reference and are made part of this Counterclaim. 65. Answering Defendant's project for ALDIR required an acceptance test in January 2002 to be performed on the software designed and prepared for the project, and upon information and belief, the software did not pass the acceptance test as a result of the defective services and work provided by Plaintiff. 66. Answering Defendant was then forced to provide its own engineers and employees in order to recode the defective software, fix the programming, and correct the deficiencies of Plaintiffs work and ensure that the project was completed in a timely marmer without further delay and that the clients of Answering Defendant did not terminate their contracts and relationships with Answering Defendant. 67. Answering Defendant's project for ALDIR had a drop dead deadline of August 31, 2002, after which it would be in default under its contract. 68. The deadline of August 31, 2003, could not have been met absent the additional funds and resources expended by Answering Defendant to cover and correct the deficiencies in Plaintiffs work. 69. Furthermore, as a result of the defective services and work provided by Plaintiff, the software could not be recoded and tested for acceptance prior to June 30, 2002. 12 , .. , 70. As a result of the inability to recode the software and test it for acceptance prior to June 30, 2002, Answering Defendant was required by the terms of its performance bond to post - an irrevocable letter of credit ("LOC"). 71. The irrevocable LOC was not released for 276 days during which time Answering Defendant paid interest at the rate of 3 .25%. 72. The expenses incurred,by Additional Defendant as a result of Plaintiff's defective work include, but are not limited to the following: a. Payment of the salaries of the engineers and other employees sent to complete the ALDIR project whose work would have otherwise been used on other projects as well as payment for temporary lodging, meals, and related additional expenses for those engineers and other employees sent to complete the projects, which expenses from March 2002 through August 2002 are at least $381,071.00; , b. Interest, costs and expenses incurred as a result of the requirement of Answering Defendant be to post an irrevocable LOC, which expenses were in the amount of$38,343.51; c. Lost profits of Answering Defendant; and d. Other consequential and related costs and expense incurred by Answering Defendant as a result of Plaintiffs failure to provide a functioning computer program. WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter in an amount at least equal to 13 , ~ ,. ~ . . $419,414.51, together with costs, interest, reasonable attorney fees and such other and further relief as this Court deems just. Respectfully Submitted, IRWIN, McKNIGHT & HUGHES By: Ak~'~ Douglas G. liller, Esquire Supreme Co ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant BancTec, Inc. Dated: July 16, 2003 14 , . " " , VERIFICATION The foregoing document is based upon information which has been gathered by corporate counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. BAN~d By: Date: }.....ly / 1- ,2003 , . " , '. . . I CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: David A. Baric, Esquire 17 West South Street Carlisle, PA 17013 (Attorney for Plaintiff) Shared Data Services Attn: Richard Dame PNB 204, 60 Chelsea Corners Chelsea, Alabama 35043 (Defendant) Date: July 16,2003 IRWIN, McKNIGHT & HUGHES iJ. Mj~ Douglas G. iller, Esquire Su.preme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant BancTec, Inc. !I , '. ~ . '. CERTIFI~E OF SERVICE I hereby certify that on August I(;' ,2003, David A. Baric, Esquire, of O'Brien, Baric & Scherer, did serve a copy of Preliminary Objections To Counterclaim Of Bane Tee, Inc. , by first class U.S. mail, postage prepaid, to the party listed below, as follows: Douglas Miller, Esquire Irwin, McKnight & Hughes 60 West South Street Carlisle, Pennsylvania 17013 David A. Baric, Esquire PRAECIPE FOR LISTING CASE FOR ,I\RGUMENT (Must be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: nease list the within matter f= the next ArglD1ent Court. ---------------------------------------------------------.---------------------------- - CAPTION OF CASE (entire caption must be stated in full) CENTRAL PA DATA SERVICES, INC. ( plaintiff) vs. RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., ( IJefeOOant) ~lJ: 2003 No. 2395 Civil Term 1. State matter to be argued (Le.. plaintiff's lOC,tion for new trial. defeOOan 's danurrer to canplaint. etc.): Plaintiffs preliminary Objections To Counterclaim Of Banctec, Inc. 2. Identify counsel who will argue case: (b) for defeOOant: Address: David A. Baric, Esquire O'Brien, Baric & Scherer 17 West South Street Carlisle, Pennsylvania 17013 Douglas Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, Pennsylvania 17013 (a) for plaintiff: Address: 3. I will notify all parties in writing within no) days that this case has been listed for argurent. 4. Arg\Dlent Court Date: December 3~jJ c::/L Dated: October 16, 2003 Attorney for Plaintiff () c <" ,-,,-'," ri"l!'r ;. en -,' r:f ~ ~:~~. CJ C:J C'..J '"-' ~'.l __.1 ~':' o ~- =2 :::'1 C) CENTRAL PA DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW : 2003 - 2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Amended Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. IRWIN & McKNIGHT . Miller, squire Supreme 000 J.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant Banctec, Inc. Date: November 21,2003 CENTRAL PA DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. 2003 - 2395 CIVIL TERM : JURY TRIAL DEMANDED AMENDED COUNTERCLAIM OF DEFENDANT BANCTEC. INC. TO PLAINTIFF'S COMPLAINT AND NOW this 21 st day of November, 2003, comes Defendant BANCTEC, INC. by and through its attorneys, Irwin & McKnight, and respectfully files this Amended Counterclaim to the Plaintiff's Complaint dated May 20, 2003, and in support thereof aver as follows: AMENDED COUNTERCLAIM 64. The averments of fact contained in the Answers and New Matter to the Plaintiff's Complaint filed on July 16, 2003, are hereby incorporated by reference and are made part of this Amended Counterclaim. 65. Answering Defendant's project for the Alabama Department of Industrial Relations ("ALDIR") required an acceptance test in January 2002 to be performed on the software designed and prepared for the project, and upon information and belief, the software did not pass the acceptance test as a result of the defective services and work provided by Plaintiff. 66. As a result of the failed test, ALDIR demanded a meeting with Answering Defendant to discuss the termination of its software design and installation services. 67. In order to complete the project, Answering Defendant was forced to provide its own engineers and employees in order to recode the defective software, fix the programming, and correct the deficiencies of Plaintiff's work and ensure that the project was completed in a timely marmer without further delay so that ALDIR did not terminate the relationship with Answering Defendant. 68. In order to extend the time to complete the project, Answering Defendant was required to enter into an agreement with its surety to satisfy the concerns of ALDIR. A true and correct copy of this agreement is attached hereto as Exhibit "A." 69. Answering Defendant was required under the terms of Exhibit "A" to agree and warrant that the projects for ALDIR would be completed, tested and accepted no later than a fmal deadline of September 1, 2002. 70. Answering Defendant was further required under the terms of Exhibit "A" to provide its surety with an Irrevocable Letter of Credit ("ILOC") which would be utilized in the event the work was not completed, tested and accepted on or before the earlier date of June 30, 2002. A true and correct copy of the ILOC with effective date of July 1, 2003 is attached hereto and incorporated herein as Exhibit "B." 71. As a result of the inability to remedy Plaintiff's defective work and recode the software and test it for acceptance on or before June 30, 2002, Answering Defendant was required to utilize the ILOC attached as Exhibit "B." 2 72. The ILOC was not released for 276 days during which time Answering Defendant paid interest at the rate of 3.25%. 73. The final deadline of September 1, 2002, could not have been met absent the additional funds and resources expended by Answering Defendant to cover and correct the deficiencies in Plaintiff's work. 74. The expenses incurred by Additional Defendant as a result of Plaintiff's defective work include, but are not limited to the following: a. Payment of the salaries of the engineers and other employees sent to complete the ALDIR project whose work would have otherwise been used on other projects as well as payment for temporary lodging, meals, and related additional expenses for those engineers and other employees sent to complete the projects, which expenses from March 2002 through August 2002 are at least $381,071.00; b. Interest, costs and expenses incurred as a result of the requirement of Answering Defendant be to post the ILOC attached as Exhibit "B," which expenses were in the amount of$38,343.51; c. Lost profits of Answering Defendant; and d. Other consequential and related costs and expense incurred by Answering Defendant as a result of Plaintiff's failure to provide a functioning computer program. WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter in an amount at least equal to 3 $419,414.51, together with costs, interest, reasonable attomey fees and such other and further relief as this Court deems just. Respectfully Submitted, IRWIN & McKNIGHT Dated: November 21,2003 By: Douglas . Mi er, Esquire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant BancTec, Inc. 4 EXHIBIT "A" AGREEMENT THIS AGREEMENT, is entered into as of the 1st day of March, 2002, by and between BancTec, Inc., a.k.a. BancTec USA, with offices at 2701 E. Grauwyler Road, Irving, TX 75061 ("BancTec") and American Casualty Company of Reading, PA, with offices at 333 S. Wabash, Chicago, IL ("ACCO"). WHEREAS BancTec executed a Professional Services Contract on March 2, 1999 with the State of Alabama Department of Industrial Relations with offices at 649 Monroe Street, Montgomery, AL 36131 ("ADIR"), whereby BancTec was to design, develop, install, test and deliver software for the Tax Operations Processing System ("TOPS") for ADIR, which Contract has been amended and modified from time to time and is attached hereto and made a part hereof as Exhibit A and which is hereafter referred to as the "Contract" or the "Original Contract"; and WHEREAS ACCO issued Performance Bond No,158235053 (the "Bond") in the penal sum of One Million Five Hundred Thirty-Eight Thousand Eight Hundred Seventy and No/lOO Dollars ($1,538,870,00) in connection with the Contract naming BancTec as Principal, ADIR as Obligee and ACCO as Surety, which Bond is attached hereto and made a part hereof as Exhibit B; and WHEREAS BancTec's performance under the Contract is not complete and will exceed the March 2; 2002 expiration date of the Contract; and WHEREAS it is ADIR's position that the Contract cannot legally be extended beyond March 2, 2002; and WHEREAS ADIR demanded a meeting between ADIR, ACCO and BancTec pursuant to the terms of the Bond to discuss ADIR's consideration of declaring a default and termination of BancTec, which meeting, with representatives of all parties being present, was held on February 19, 2002 at the offices of ADIR in Montgomery, AL; and WHEREAS BancTec desires to be allowed to complete its performance under the Contract without a declaration of default and/or termination of the Contract by ADIR; and WHEREAS at the express written request of and in order to accommodate BancTec, ADIR has agreed to make demand on ACCO to perform under the terms of the Bond without a formal declaration of default and termination ofBancTec; and WHEREAS BancTec has requested that ACCO respond to ADIR's demand despite the lack of a formal declaration of default and termination of BancTec; and WHEREAS ADIR has affirmed that the remaining Contract Balance under the Contract IS Six Hundred Forty-Five Thousand Seven Hundred Seventeen Dollars and 50/100 Dollars ($645,717.50) has agreed to dedicate the Contract Balance to the completion of the Contract and WHEREAS, to satisfy its obligations under the General Agreement of Indenmity ("GAl"), the Contract and the Bond and to mitigate its damages thereunder, BancTec desires that ACCO . arrange for the completion of the Contract in accordance with its terms and conditions and to enter into the Completion Agreement with ADIR which is attached hereto and made a part hereof as Exhibit C; and WHEREAS, BancTec desires to enter into a Contract with ACCO for the completion of the Contract along with all amendments and modifications thereto; and WHEREAS, the parties hereto wish to memorialize their agreement in connection with their responsibilities under the Bond, the Contract and this Agreement to ensure a diligent and workmanlike completion of the Contract. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the adequacy and sufficiency of which is hereby acknowledged, the parties hereby covenant and agree and bind themselves as follows: 1. All recitals set forth above are incorporated herein by reference. 2. ACCO, at BancTec's written request, will respond to ADIR's demand under the Bond for the completion of the Contract by entering into a Completion Agreement with ADIR, which is attached hereto and made a part hereof as Exhibit A. Said Agreement calls for ACCO to arrange for the completion and performance of the Original Contract by entering into a completion contract with BancTec to complete the Contract according to its terms and conditions. 3. BancTec hereby agrees to complete the work remaining under the Contract and further BancTec agrees and warrants that the work remaining under the Contract shall be completed, tested and accepted by ADIR no later than September 1, 2002, BancTec agrees that any failure to complete the work remaining under the Contract or to have the work completed, tested and accepted by ADIR no later than September 1, 2002 shall constitute a material breach of this Agreement. 2 4. BancTec agrees and acknowledges that the funding for the Contract expires on September 30, 2002. BancTec further agrees that payment to it under this Agreement is strictly conditioned upon payment being received by ACCO from ADIR and that if for whatever reason payment is not made to ACCO by ADIR, that no payment shall be due BancTec from ACCO under this Agreement. 5, The parties agree that if the work under the Contract is completed, tested and accepted by ADIR on or before September 1, 2002, payment under this Agreement shall be made within 10 business days from ACCO's receipt of payment fi:om ADIR. Payment from ADIR to ACCO is a condition precedent to any payment to BancTec under this Agreement. 6. As BancTec is desirous of completing the Contract, it agrees that it shall not raise any defense under the Contract (Exhibit A), the Bond (Exhibit B), the General Agreement of Indemnity, which is attached hereto and made a part hereof as Exhibit D, this Completion Agreement (Exhibit C) or this Agreement, that any action taken by ACCO in responding to ADIR's demand without a formal declaration of default and termination ofBancTec, to ACCO's failure to raise any defenses to ADIR's demand, or to ACCO entering into the Completion Agreement (Exhibit C). 7. BancTec shall indemnify and hold harmless ACCO from and against any and all demands, obligations, claims, cause or causes of actions, liabilities, costs, penalties, interest, damages, attorney fees and expenses of whatever nature or kind it may incur under: the Contract (Exhibit A), the Bond (Exhibit B); the Completion Agreement (Exhibit C) or this Agreement. 8. BancTec agrees that the General Agreement of Indemnity ("Exhibit D") it signed on January 1, 1996, shall fully apply to: the Contract (Exhibit A), the Bond (Exhibit B); the Completion Agreement (Exhibit C) and this Agreement. 9. BancTec agrees that the Bond issued by ACCO shall remain in full force and effect and shall cover the Contract (Exhibit A), the Completion Agreement (Exhibit C) and performance and/or nonperformance or default of BancTec this Agreement. 10. As further consideration and inducement to ACCO to enter into the Completion Agreement (Exhibit C) with ADIR. BancTec agrees that if the work under the Contract is not completed, tested and accepted by ADIR on or before June 30. 2002, it shall provide ACCO with $1,538,870.00 in collateral in the form ofan Irrevocable Letter of Credit ("ILOC") as set forth in Exhibit E, which is attached hereto and made a part of this Agreement. The collateral and the 3 ILOC will be provided to ACCO on or before July 8, 2002. The failure of BancTec to provide the ILOC in the specified amounts within the specified time frame shall be considered a default under the GAl (Exhibit D) and this Agreement. 11. ACCO, upon receipt of a letter from ADIR advising that the project has been completed, tested and accepted and upon receipt of payment from ADIR in the amount of $645,717.50 (the remaining Contract balance), shall promptly notify the banking institution issuing any ILOC(s) required to be provided under this Agreement, that the ILOC is cancelled. 12. In the event of a default by BancTec under this Agreement and/or the GAl, ACCO, at its sole discretion, shall draw down on the ILOC(s) and disburse funds as required to remedy BancTec's default. In the event any BancTec default under this Agreement and/or the GAl is remedied by means other than direct payment of money to ADIR, ACCO, after deduction for all amounts it is entitled to under this Agreement and/or the GAl, agrees to promptly return any remaining funds from the ILOC(s) to BancTec. 13. This Agreement shall be governed by the law of the State of Illinois and shall extend to and be binding upon the parties and their respective successors and assigns. 14. The parties and their signatories hereto warrant that each has the power and authority to execute this Agreement and to bind themselves to the terms and conditions contained herein. The parties hereto have voluntarily executed this Agreement based upon their independent investigation and advice of counsel. 15. The parties agree that this Agreement was jointly drafted and negotiated by the parties and shall not be construed against any party as the drafter. 16. The parties do not intend, and no provision herein shall be construed to create any third party beneficiaries, or to confer any benefit, or enforceable rights hereunder, upon anyone other than the parties hereto. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the date written herein above. 4 BANCTEC, INC. Its: :::> STATE OF TEXAS COUNTYOF ~4LOrS ) ) ss ) CONTRACTS ul',r;"'1 APPROVED A. ' III F~M . . '/,;JQ~ BEFORE ME, the undersigned authority, on this date personally appeared Brian Stone, to me to be the person: and agent subscribing hereinabove on behalf of BancTec, Inc., who upon oath acknowledged to me that he is duly authorized to execute the above and foregoing Agreement on behalf of BancTec, Inc., that he has read the foregoing Agreement, and that he has executed the same on behalf of Bane Tee, Inc. for the purposes and consideration therein expressed. ~o....Q:n.,,--ct.\)~ Notary Public ' Subscri~ and sworn to me before me this.;L day ofMMeh, 2002. - Prpl<.\L f?Z" ,...;;-..... ,,;,;\Ye"~ ,(;/- \, BARBARA J VANCE (~, .i~';;;* NOTARY PUBUC h"h'?" I" S~! tT 1\\'P;"'~ .>I"I,<~f 4.8 e 0 exas . ,l' iif ,~..., f".-.. ~.. , -'.._,~ _"..m, ""p. 08-31-2002 '''''''Ilf'l'.;~,~,~""""""v~~,~ Notary Public in and for the State of Texas My Commission expires: 2? - 3/- ,;).00 ~ 5 AMERICAN CASUALTY COMPANY OF READING, PA ~.C~~~ Its: Authorized Representative STATE OF ILLINOIS ) ) ss COUNTY OF COOK ) BEFORE ME, the undersigned authority, on this date personally appeared Joan C. Clements, known to me to be the person and agent subscribing hereinabove on behalf of American Casualty Company of Reading, PA, who upon oath acknowledged to me that she is duly authorized to execute the above and foregoing Agreement on behalf of the American Casualty Company of Reading, P A, that she has read the foregoing Agreement, and that she has executed the same on behalf of American Casualty Company of Reading, P A for the purposes and consideration therein expressed, f~ SUbqlied and sworn to me before me this daYOf;1~~~~ Notary Public in and for the State of Illinois My Commission expires: I c? - q -01.., "Oi"Fr< " J. DoU~lAL Sli4i" "-"0" .I-!lSIv/PA_ I)hlic Sf, I :,\I"\c:::: . tate" . '.., of,lhnc/s" ,..'.~ . .." 10109^ ''''~ 02 6 EXHIBIT "B" 500 West Mcn rOB ~nrGat Chicago, IL 60661 [ " 312,441.7500 E3 i I I Heller Financial IRREVOCABLE STANDBY LETTER OF CREDIT ! I MAXIMUM AMOUNT u.s. $1,538,870.00 No. BTIHCF052501006 To: I I American Casualty Company of Reading, Pennsylvania c/o CNA Surety Corp 333 E~outh Wabash Chicago, Illinois, 60685-0001 Effective Date: July 1, 2002 , Ladies and Gentlemen: I I We b!ereby establish in your favor our Irrevocable Standby Letter of Credit No. lBTIHCF052501006 for the account of Banctec, Inc., subject to the following limitations: 1. For ahy sum or sums not exceeding $1,538,870.00 in the aggregate for I all dr:lits presented hereunder. 2. Fund:s under this Letter of Credit are available against your signed draft mark'pd "Drawn under Heller Fip.ancial, Inc. Irrevocable Standby Letter of Credit No. BTIHCF052501006 dated July 1, 2002." I 3. Draft!! must be accompanied by a signed Draw Certificate in the form attached hereto. 4. We h::reby agree to honor each draft drawn under and in compliance with the terms of this Letter of Credit if duly presented, together with the origink.tly executed Letter of Credit, at our offices at 500 West Monroe Street, Chicago, Illinois 60661, Attn: Account Manager / Banctec, Inc. on or before the close of business on July 1, 2003 , subject to extension as specified in paragraph 6 below. i 5. This I~etter of Credit sets forth in full the terms of our undertaking, and such Undertaking shall not in any way be ffi.::>dified, amended, amplified , I or in which this Letter of Credit is referred to, or to which this Letter of Cred:~t relates; and no such reference shall be deemed to incorporate herein by reference any such document, instrument or agreement. I 6. This :Letter of Credit shall eA'Jlire on July I, 2003 ; provided, however, that '~his Letter of Credit shall be deemed to be automatically extended at the end of such initial term and at the end of each successive additional term thereafter for an additional one year tenn without requirement of an amer.~dment unless 60 days prior to the end of any such term we notify , you in writing at the address set forth above that we have elected not to furth~r extend the term of this Letter of Credit. Notwithstanding the foreg"ing, the expiry date of this Letter of Credit shall in no event be extended beyond May I, 2006. 7. This :Letter of Credit is issued subject to the Uniform Customs E\Ild PractIce for Documentary Credits (1993 Revision) International Chamber of Commerce Publication No. 500 ("UCP") and, except as to matters governed thereby, shall, be governed and construed in accordance with the internal laws of the State of Illinois. If this Letter of Credit expires during an interruption of business as described in Article 17 of the UCP, Helleli hereby specifically agrees to effect payment if the Letter of Credit is draWl~ against within 30 days after the resumption of business from such interruption. HELLER FINANCIAL, INC. . BT-~ Title: b-.. I S ~ 2 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: David A. Baric, Esquire 17 West South Street Carlisle, PA 17013 (Attorney for Plaintiff) Shared Data Services Attn: Richard Dame PNB 204, 60 Chelsea Corners Chelsea, Alabama 35043 (Defendant) Date: November 21,2003 IRWIN & McKNIGHT Miller, Esquire Supreme ourt ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant BancTec, Inc. "C) " ( . ,. ',) ,-'.,) -.-.- J.: 'J ) " ~ ( ~) -< CENTRAL PA DATA SERVICES, INC., Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 2003-2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : CIVIL ACTION-LAW NOTICE TO PLEAD TO: BancTec,Inc, c/o Douglas Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, Pennsylvania 17013 Richard Dame Shared Data Services 6044 Camelot Court Montgomery, AL 36117-2554 You are hereby notified that you have twenty (20) days in which to plead to the enclosed Answer, New Matter And New Matter Pursuant To Pa.R.C.P. 2252(d) Of Plaintiff To Counterclaim Of BancTec, Inc. or a Default Judgment may be entered against you. Date: /7 I/CIO~ Q2ztR David A. Baric, Esquire J.D. #44853 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 CENTRAL PA DATA SERVICES, INC., Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2003-2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : CIVIL ACTION-LAW ANSWER, NEW MATTER AND NEW MATTER PURSUANT TO PA.R.C.P. 2252 (D)OF PLAINTIFF TO COUNTERCLAIM OF BANCTEC. INC. AND NOW, comes Plaintiff, Central Pa Data Services, Inc. ("Central Pa") and files the within Answer, New Matter and New Matter Pursuant to Pa.R.C.P. 2252( d) to the Counterclaim of BancTec, Inc. ("BancTec") and, in support thereof, sets forth the following: 64. Central Pa incorporates by reference its averments as set forth in its Complaint and reply to new matter of BancTec, Inc. as though set forth at length. 65. Denied. It is denied that any work provided by Central Pa was defective or was the cause of any failure of BancTec's work to meet any alleged requirements of ALDIR. After reasonable investigation, Central Pa is without knowledge or information sufficient to form a belief as to the truth of the remaining averments and they are, therefore, denied. 66. After reasonable investigation, Central Pa is without knowledge or information sufficient to form a belief as to the truth of these averments and they are, therefore, denied. 67. Denied. It is denied that any work provided by Central Pa was defective or was the cause of any failure of the BancTec work to met allege requirements of ALDIR. To the contrary, the work of Central Pa was provided within accepted industry practices and norms. 68. After reasonable investigation, Central Pa is without knowledge or information sufficient to form a belief as to the truth of these averments and they are therefore, denied. 69. After reasonable investigation, Central Pa is without knowledge or information sufficient to form a belief as to the truth of these averments and they are therefore, denied. 70. After reasonable investigation, Central Pa is without knowledge or information sufficient to form a belief as to the truth of these averments and they are therefore, denied. 71. Denied. To the contrary, it is denied that Central Pa provided any work which was defective or caused Defendant to utilize any letter of credit. 72. After reasonable investigation, Central Pa is without knowledge or information sufficient to form a belief as to the truth of these averments and they are therefore, denied. 73. Denied. It is denied that Central Pa provided any work which was deficient or caused Defendant to spend any additional funds or resources. 74. Denied. It is denied that Central Pa provided any work which was defective or caused any harm to Defendant. a. Denied. To the contrary, these are expenses, if actually incurred, Defendant would incur in the ordinary course of its business and had nothing to do with any act or omission by Central Pa. b. Denied. To the contrary, these expenses, if actually incurred, were not the result of any act or omission by Central Pa. c. Denied. To the contrary, any lost profits, if actually incurred, were not the result of any act or omission by Central Pa. d. Denied. To the contrary, any consequential costs and expenses, if actually incurred, were not the result of any act or omission by Central Pa. WHEREFORE, Plaintiff requests that judgment be entered in its favor and against Defendant in accordance with the Complaint of Plaintifftogether with costs, expenses and interest. NEW MATTER 75. Central Pa incorporates by reference the averments of its Complaint as though set forth at length herein. 76. Defendant has failed to state a claim for which relief may be granted. 77. Defendant's action is barred by the applicable statute oflimitations. 78. Central Pa is immune from suit by Defendant. 79. Defendant is estopped from asserting a claim against Central Pa. 80. Any injury suffered by Defendant is the direct and proximate result of acts and/or omissions of Defendant and/or its representatives or agents, 81. Defendant has failed to join a necessary party. 82. Central Pa was prevented by Defendant from performing and there was, therefore, an impossibility of performance. 83. Central Pa was justified in its actions based upon the acts of Defendant and its representatives and agents. 84. Any injury suffered by BancTec was the result of acts and/or omissions of Richard Dame, d/b/a Shared Data Services. NEW MATTER PURSUANT TO Pa.R.c.P. 2252(D) 85. Plaintiff incorporates by reference the averments of its complaint and its new matter set forth hereinabove as though set forth at length. 86. Central Pa denies that it is liable to BancTec. Based upon the foregoing, Central Pa asserts that Richard Dame is alone liable to Bane Tee, or Richard Dame is liable directly to Central Pa for contribution or indemnification. Nothing in this paragraph shall be construed as an admission of liability by Central Pa, said liability being expressly denied. WHEREFORE, Central Pa requests that judgment be entered in its favor and against Richard Dame for contribution and/or indemnification together with costs and expenses. Respectfully submitted, . 'BRJEN',BAR1~a David A. Baric, Esquire J.D. 44853 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Central Pa Data Services, Inc. da b.dir/eorporate/eentralpadata/auswer&newmatter.pld I verify that the statements made in the foregoing Answer, New Matter and Crossclaim are true and correct to the best of my knowledge, information and belief. This verification is signed by David A. Baric, Esquire, attorney for Plaintiff and is based upon statements provided by the Plaintiff and other persons, as well as documents reviewed by the undersigned as attorney for Plaintiff. This verification will be substituted and ratified by a verification signed by the Plaintiff who is presently unavailable to sign said verification. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 94904, relating to unsworn falsification to authorities. David A. Baric, Esquire Dated: 1)-llfl13 CERTIFICATE OF SERVICE I hereby certify that on December /6" , 2003, David A. Baric, Esquire, of O'Brien, Baric & Scherer, did serve two copies of the Answer, New Matter And New Matter Pursuant To Pa.R.C.P. 2252(d) Of Plaintiff To Counterclaim Of BancTec, Inc., by first class U.S. mail, postage prepaid, to the party listed below, as follows: Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, Pennsylvania 17013 Richard Dame Shared Data Services 6044 Camelot Court Montgomery, AL 36117-2554 I k David A. Baric, Esquire Date:December 15, 2003 /~ C. -., "', t:..) (:~::l Lv "r~ :~ f<-l0- " ;.'-':; cj '-"~I ,C _::J :1. it-., CENTRAL PA DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION. LAW RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : 2003 - 2395 CIVIL TERM : JURY TRIAL DEMANDED ANSWER OF DEFENDANT BANCTEC. INC. TO THE PLAINTIFF'S MOTION TO COMPEL AND NOW, this 9th day of March, 2004, comes Defendant BANCTEC, INC. by and through its attorneys, Irwin & McKnight, and makes the following Answer to the Motion to Compel filed by Plaintiff, CENTRAL PA DATA SERVICES, INC., averring as follows: 1. The averments contained in paragraph one (1) of the Motion are denied as stated. By way of further answer, it is admitted that Plaintiff filed a Complaint on or about May 20, 2003, against the above-named Defendants. 2. The averments of fact contained in paragraph two (2) of the Motion are admitted. 3. The averments of fact contained in paragraph three (3) of the Motion are conclusions of law to which no response is required. 4. The averments of fact contained in paragraph four (4) of the Motion are specifically denied and strict proof thereof is demanded at trial. By way of further answer, on this date counsel for Defendant BancTec, Inc. has served on Plaintiff s legal counsel responses to the Request for Production of Documents. The answering party is a large corporation with its primary corporate offices located in Texas, and is currently finalizing its responses to the Interrogatories of Plaintiff. 5. The averments of fact contained in paragraph five (5) of the Motion are admitted. By way of further answer, counsel for Defendant BancTec, Inc. informed Plaintiffs counsel that responses would be forthcoming, but that additional time was needed to locate and review the requested information and documentation in order to provide accurate answers to the various requests. WHEREFORE, Defendant BancTec, Inc. respectfully requests that this Court deny Defendants' Motion to Compel and provide answering Defendant with additional time in which to complete its responses to the various discovery requests. IRWIN & McKNIGHT By: Douglas Miller, Esquire Supreme Court J.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant, BancTec, Inc 2 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by hand delivery or first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: DAVID BARIC, ESQUIRE O'BRIEN, BARIC & SCHERER 17 WEST SOUTH STREET CARLISLE, PA 17013 Date: March 9,2004 IRWIN & McKNIGHT Douglas . Miller, Esquire Suprem Court J.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant Banctec, Inc. (") r--o 0 = c ~ -n ~... ::0:: .-J l] :1 ..,., <T: ::."'" nlf~ ;;.\J -OPl (j~~ I -,'y 1.0 Q!~l, r::: , -0 :T. "T1 '-. t.;;22-) C., "'c C' -;:-"')cn :;; c: 1'.) "~'. -t ~ U1 :n -, r"" -< CENTRAL PA DATA SERVICES, INC., Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2003- ~3 9.5 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : CIVIL ACTION-LAW NOTICE 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 an 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. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 CENTRAL PA DATA SERVICES, INC., Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. ;l .3 t;5 : NO. 2003- CIVIL TERM RICHARD DAME d/b/a Shared Data : CIVIL ACTION-LAW Services and BANCTEC, INC., Defendants. COMPLAINT NOW, comes Plaintiff, Central Pa Data Services, Inc.("Central Pa"), by and through its attorneys, O'BRIEN, BARIC & SCHERER, and files the within complaint and, in support thereof, sets forth the following: 1. Central Pa Data Services, Inc. is a Pennsylvania corporation with its principal place of business located at 138 Tory Circle, Enola, Cumberland County, Pennsylvania. 2. Richard Dame, d/b/a Shared Data Services, is an adult individual with a principal residence located at 6044 Camelot Court, Montgomery, Alabama. 3. BancTec, Inc. ("BancTec"), is a Texas corporation with its principal place of business located at 2701 East Grauwyler Road, Irving, Texas. 4. Central Pa is in the business of providing computer consulting services including system designs and applications. I 5. In 2000, Richard Dame, d/b/a Shared Data, contacted Dana Showers, the president of Central P A, at the office of Central Pa in Enola, Pennsylvania and asked whether Central Pa would be interested in providing services as a subcontractor to Shared Data for projects undertaken by Shared Data. Shared Data and Central Pa had previously worked together on other computer consulting projects. 6. In October, 2001, Shared Data entered into a Staffing Services Agreement with BancTec. A true and correct copy of the Staffing Services Agreement is attached hereto as Exhibit "A" and is incorporated. 7. Prior to and after the date of the Staffing Services Agreement, Central Pa provided services on various projects through Shared Data to BancTec. These projects included, but were not limited to; ALDIR, Kable News and MDCH ("projects"). 8. Both Dame and BancTec were aware that Central Pa would be performing a portion of its work on the projects from the Central Pa office in Enola, Pennsylvania as well as on site at the business locations of the customers. Substantial parts of the dealings amongst the parties took place in or otherwise involved, Enola, Pennsylvania including, but not limited to, written and telephonic communications and billing and paying of invoices. Further, upon information and belief, BancTec has conducted business within the Commonwealth of Pennsylvania over an extended period oftime including providing substantial services and materials for customers in Cumberland County, Pennsylvania. 2 9. Prior to providing services, Central Pa quoted Dame the fee of$100.00 per hour plus expenses for projects in which Central Pa would provide services through Shared Data. Dame accepted this offer and, thereafter, Central Pa began to provide services through Shared Data on several projects. 10. Dame informed Central Pa that for projects involving BancTec, Central Pa was to provide time sheets to Dame that he would forward to BancTec for payment. Dame informed Central Pa that Dame would be billing BancTec at the rate of$125.00 per hour for time provided by Central Pa. Dame would, upon receipt of a check from BancTec, keep the $25.00 differential for himself and then remit a Shared Data check to Central Pa at the $100.00 per hour rate. BancTec instructed Dame to direct all time sheets involving Central Pa services to a Purchase Order number BancTec provided specifically for Central Pa. 11. For a period of eleven (11) months, the invoices of Central Pa were routinely paid for work Central Pa provided on the projects. 12. Central Pa provided services through Shared Data for the projects up to March, 2002. 13. Attached hereto as Exhibit "B" and incorporated by reference, are invoices which reference services provided by Central Pa for which payment has not been made. The invoices attached in the aggregate reflect a balance due of$136,719.90. Partial payments have been received leaving a balance due of $107,047.02. 14. Despite demand therefore, neither Dame nor BancTec has paid the amount due for services Central Pa provided to Shared Data and BancTec for the projects. 3 15. During the course of one of the projects (ALDIR), Shared Data sought to have an additional individual perform. work on the project. Central Pa agreed to work with this individual and Central Pa and Shared Data agreed that Shared Data would pay Central Pa $25.00 per hour for each hour this individual worked on the project. Shared Data has neither paid any amount due on this debt nor provided an accounting to Central Pa regarding the number of hours worked by this individual. COUNT I-BREACH OF CONTRACT 16. Plaintiff incorporates by reference paragraphs one through fifteen as though set forth at length. 17. Dame and BancTec have breached the agreement ofthe parties by failing and refusing to pay for the services rendered by Central Pa for the projects. 18. As a direct consequence of this breach, Central Pa has failed to recover the sum of $107,047.02 for the services it rendered for the projects. WHEREFORE, Plaintiff requests judgment in its favor and against Dame and BancTec for the sum of$107,047.02 plus interest, costs and expenses and an additional amount unknown to Plaintiff at present as referenced in paragraph 15 hereinabove. COUNT II-QUANTUM MERUIT CENTRAL PA DATA SERVICES, INC. v. RICHARD DAME and BANCTEC, INC. 19. Plaintiff incorporates by reference paragraphs one through eighteen as though set forth at length. 4 20. Dame and BancTec have enjoyed the benefit of the services provided by Central Pa for the projects. 21. Dame and BancTec have failed and refused to pay Central Pa for the services provided by Central Pa to Dame and BancTec for the projects. 22. Dame and BancTec have been unjustly enriched by retaining and enjoying the benefits of the work and services provided by Central Pa to Dame and BancTec for the projects without having made payment therefor. WHEREFORE, Plaintiff requests judgment in its favor and against Dame and BancTec for the value of the work and services provided by Central Pa to Dame and BancTec. COUNT III-CONVERSION CENTRAL PA DATA SERVICES, INC. v. RICHARD DAME 23. Plaintiff incorporates by reference paragraphs one through twenty-two as though set forth at length. 24. Dame has received from BancTec a sum of money in the approximate amount of $14,000.00. This sum of money was sent to Dame by BancTec for and on account of services rendered by Central Pa. Despite demand for tender of these funds, Dame has failed and refused to release this money to Central Pa. 25. The proper use of these funds received by Dame would have been to release them to Central Pa as partial payment of the amount due and owing. 26. At the time of receipt of these funds, Dame was obligated to pay those funds over to Central Pa. 5 27. Knowing he had the aforesaid obligation, Dame has refused to pay the funds to Central Pa and has appropriated those funds to his own use and benefit. 28. Dame has intentionally and substantially interfered with Central Pa's right to receive the funds which were to be paid to Central Pa. WHEREFORE, Plaintiff requests judgment in its favor and against Richard Dame for the sum $107, 047.02 plus costs, expenses, interest and punitive damages. COUNT IV-INTENTIONAL INTERFERENCE WITH CONTRACT CENTRAL PA DATA SERVICES, INC. v. RICHARD DAME 29. Plaintiff incorporates paragraphs one through twenty-eight as though set forth at length. 30. During the prosecution ofthe ALDIR project, Dame retained another individual to perform work which was being undertaken by Central Pa without the agreement of Central Pa. This action of Dame prevented Central Pa from performing its services. 31. Dame directed Central Pa to discontinue its work on the ALDIR project. 32. Subsequent to removing Central Pa from the ALDIR project, Dame provided an invoice to BancTec which was for work and services provided by Central Pa to the ALDIR project. 33. Dame directed BancTec to not pay for the services rendered by Central Pa for the ALDIR project. 34. Dame intentionally interfered with the contract between Central Pa and BancTec regarding the ALDIR project. 6 35. Dames actions were neither privileged nor justified. 36. As a consequence of Dame's actions, BancTec has not paid Central Pa for services rendered by Central Pa for the ALDIR project. 37. Central Pa remains owed the sum of $82,608.65 for work it performed on the ALDIR project. WHEREFORE, Plaintiff requests judgment in its favor and against Richard Dame for the sum of $82,608.65 plus interest, costs and expenses and punitive damages. Respectfully submitted, [:Bj7;?C{r . David A. Baric, Esquire I.D. # 44853 1 7 West South Street Carlisle, P A 17013 (717) 249-6873 Attorney for Plaintiff dab.dir/corporate/centralpadata/bantec3.com VERIFICATION The statements in the foregoing Complaint are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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 falsifications to authorities. DATE: 5 )1 ~ 3 / / ana Showers, President Central Pa Data Services STAFFING SERVICES AGREEMENT - Oc / jtJO / by and between , located at to CllcLE# ct IS4 ("VENDOR") and BancTec, Inc., I E. Grauwyler Road, lrving, TX 75061 ("CO}..1PANY"). WITNESSETH WHEREAS. COMPANY is in the business of manufacturing ofdocwnent processing systems, systems integration services and maintenance services; and WHEREAS, COMP ANY desires to utilize supplemental staffing personnel supplied by VENDOR ("Supplemental Personnel"). NOW, THEREFORE, in consideration of the mutual covenants contained hereirr, the parties hereto agree as follows: 1. TERl'\1 The tenn of this Agreement shall be one year from the abo'/e date and shall be automatically renewed for successive one year periods thereafter, provided that either party shall have the right to terminate this Agreement during the initial tenn or any renewal term upon 30 days' prior wrinen notice. COMP ANY reserves the right to terminate the services of any individual Supplemental Personnel supplied by VENDOR under this Agreement by giving VENDOR written notice. The effective date of such tennination shall be as specified by COMPANY. 2. DUTIES VENDOR will provide the appropriate resources necessary to service Supplemental Personnel requests from authorized COMPANY personnel, including the following: a) Performing necessary record keeping (including timecards). related to attendance, hours worked, department to be charged, overtime and other personnel functions. b) Recruiting and retaining qualified Supplemental Personnel. c) Preparing and submitting reports reasonably deemed necessary by VENDOR and COMPAl'l'y' EXHIBIT "A" DEPosmON ri""'\ EXHIBIT V(1'.()112... 5" I ~ 3 LKtI (Revised ]0/3/01) OCT-30-2001 09:14 9725795812 56% P.02 3. INDEPENDENT CONTRACTOR NOT APPLICABLE to Shared Data Services. Shared Data Services hires individual contractors not employees of Shared Data Services. Any mention of Supplemental Personnel in this agreement is not Valid. VENDOR and all Supplemental Personnel shall at all times remain an independent contractor of COMPANY. Nothing contained herein shall be construed to create (a) an agency, partnership or joint venture relationship between CaMP ANY and VENDOR and/or (b) an employer/employee relationship between COMPANY and either VENDOR or Supplemental Personnel. 4. VENDOR RESPONSIBILITIES (a) VENDOR shall at all times remain the employer of Supplemental Personnel on assignment to COMPANY and shall be responsible for the withholding and payment of any and all federal, state and local personal income, wage earnings, occupation, unemployment. sickness and disability insurance taxes, payroll levies. employee benefit requirements or take any other actions required under applicable law (under ERlSA, federal law, or otherwise) how existing and hereafter enacted (collectively, "Taxes and Benefits") which are attributable to VENDOR and/or all Supplemental Personnel supplied under this agreement. (b) VENDOR agrees that all decisions and actions with respect to Supplemental Personnel shall be without regard to race, color, religion. sex, national orgin, disability, age or veteran status. (c) VENDOR shall maintain, at its expense, \\'orkers compensation insurance insurance at the levels required by applicable local laws, liability insurance in the amount of $1,000,000 covering Supplemental Personnel being supplied to COMPANY by VENDOR (d) VENDOR will ensure that all Supplemental PersolUlel sign a confidentially agreement in the fom1 supplied by CaMP ANY prior to the commencement of their services to COMPANY. The current Version of such form is attached to this Agreement as Attachment 1. (e) VENDOR will perform a criminal background check and obtain a urine drug test for all Supplemental Personnel prior to the commencement of their services to COMPANY. Company reserves the right to require, at COMPANY's expense, hair drug tests from any and all Supplemental Personnel at any point in time. 5. RATES (a) Billing rates for Supplemental Personnel shall be mutually agreed to by filling out and signing mutually agreed to Rate Forms, the initial version of which is attached to this, . Agreement as Attachment 2. (b) Any changes to rates listed in the applicable Rate Form must be mutually agreed to by signing a revised Rate Form. (c ) Overtime hours shall be all hours worked in excess of 40 hours per week by Supplemental Personnel. Overtime hours for non-exempt personnel shall be billed to COMP ANY at 1.5 times the standard billing rate for such Supplemental Personnel, provided that VENDOR is paying such personnel at 1.5 times their standard rate. Overtime hours for exempt personnel shall be billed to COMPANY at the standard bill rate for such personnel. (d) In the event that COMPANY requests Supplemental Personnel to travel on COMPANY business, VENDOR shall invoice COMPANY for travel expenses and provide receipts for all expenses. If requested by COMPANY. VENDOR personnel shan make travel alTangements through COMPANY's travel agent. Only travel occurring during the standard eight hour business day, Monday through Friday, shall be biUable to COMPANY. (e) COMPANY shall not be invoiced for any company holidays for which Supplemental Personnel are not asked to work or for vacation time taken by such pe:'sonnel. 6. INVOICING (a) VENDOR shall invoice COMPANY weekly unless otherwise agreed upon in writing. Payments will be made by Company, net 30 days from receipt of invoice. 7. COMPLIANCE WITH LA \V AND INDEMNITY (a) If any claims for workers compensation benetits or for injuries/deaths which would be covered by workers compensation benefits is assessed against COMPANY by any Supplemental Personnel, VENDOR agrees to indemnify and save COMPANY harmless, including reasonable attorney's fees, with respect to the liability imposed upon COMP ANY in connection \-'1ith such claims. Company agrees to give prompt written notice uf any such assertion or claim. (b) Vendor further agrees to indemnify and save COMPANY harmless, including reasonable attorney's fees, from any and all liability COMPANY may incur by reason of bodily injury, death or property damage ( collectively, the "Damages") to the extent caused by the willful or negligent acts or omissions of Supplemental Personnel in the performance of their assignment for COMPANY, except to the extent the Damages are caused by .... COMPANY's negligence or willful misconduct. Company agrees to give prompt written notice of any such assertion or claim. (c) VENDOR agrees to indenmify and save harmless COMPANY, including reasonable attorney's fees, from any and all claims, judgements, fines, penalties and assessments, . including reasonable attorney's fees, incurred by VENDOR as a result of any failure by VENDOR to withhold, pay and/or provide any taxes and Benefits (as defined above) with respect to Supplemental Personnel. 8. SEPARATION EXPENSES Should COMPANY wish to hire an Supplemental Personnel identified and supplied by VENDOR hereunder, COMPAL"1Y agrees to pay VENDOR a percentage of the individuals annualized salary at the following rates, based upon the effective date of employment following their start date as a Supplemental Personnel under this agreement. Effective Emolovment Date % of Annual Salary Month I Month 2 Month 3 Momh4 Month 5 Momh6+ 25% 20% 15% 10% 5% 0% Should COMPANY wish to hire any Supplemental Personnel who was identified by COMP ANY to VENDOR and supplied by VENDOR hereunder, no payment shall be owed to VENDOR. 9. lXONSOLICITATION VENDOR agrees that during the term of this agreement and six months thereafter, VENDOR will not, directly or indirectly, solicit or hire any Supplemental Personnel or COMPANY employees to provide services to VENDOR or VENDOR's other customers. 10. CONFIDENTIALITY VENDOR acknowledges that during the term of this agreement, VENDOR may obtain contidential information regarding COMPANY's business. VENDOR agrees that VENDOR will not during the tenn of this Agreement or thereafter, directly or indirectly, use for its own benefit or for the benetit of another, or disclose to another, any trade secret, or confidential or proprietary information of BancTec, its customers, contractors, vendors, or of others with which BancTec has a business relationship. VENDOR hereby assigns and agrees to assign, to BancTec or its designee, assigns successors or legal representatives, all right, title and interest to any and all inventions, processes, diagrams, methods, apparatus, or any improvements whatsoever discovered, conceived, and or developed, either individually by Supplemental Personnel or jointly with others, during the course of services provided by any Supplemental Personnel. 11.. NO WAIVER No term or provision of this Agreement may be changed, waived, or terminated except by a written instrument signed by the party against whom the enforcement of such change, waiver or termination is sought. 12. . NON-ASSIGNABILITY Neither party shall assign this Agreement or any interest herein without the prior written consent of the other pany. 13. SEVERABILITY In the event any provision herein shall be judged illegal, void or unenforceable, the balance of this Agreement shall remain in full force and effect. 14. . AUTHORITY The persons executing this Agreement represent and warrant that they have the authority to sign this Agreement. 15. . CHOICE OF LAW this Agreement shall be governed by Texas Law. Any disputes shall be adjudicated by Texas State courts or the United States District Cou11!ocated in Dallas, Texas 16. . NOTICES To VENDOR FAX: ATTN: To COMPAl'J'Y Banctec, Inc 2701 E Grauwyler Road Irving, Texas 75061 Fax (972) 579-5812 Ann: Human Resources .' . 17. ENTIRE AGREEMENT This Agreement. together with the signed Rate Forms, constitutes the entire agreement between the panies with regard to the subject matter of this Agreement. This Agreement supersedes all prior negotiations and agreements, oral or written, with regard to the subject matter of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. VENDOR Authorized Signature: Name: Title: BANCTEC, INC. Authorized Signature: Printed Name: Brian Stone Title: CFO & Sr. VP (Revised 10/3/01) 6 OCT-3e)-2001 09: 16 9725795812 >Ie>le TOTAL PAGE. 07 >Ie>/( 96% P.0? Cehtrar P~ pata Serv1ces, Inc. 138 Tory Circle Enola, PA 17025 USA I' . , Invoil Invoice Numb! 2: Invoice Oa 7/1/< Pa~ Voice: Fax: (717) 732-9531 (.117) 732-~S3-r: Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Sales Rep 10 Due Date Net 30 Days 1 7/31/01 July 2001 per hr Expenses wk Description Dana Showers ALDIR 44.5 hrs @ 100.00 Amount 4,450.0( 7/15/01 $839.58 839.5: Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL 5,289.! 5,289.! 5,289.! ~><...I/fl EXHIBIT "B" Cen~rpl R~ Data Services, 138 Tory Circle Enola, PA 17025 USA . / . r lhvoi , Involce Numl 2 Invoice Di 7/1/ Pa Inc. Voice: Fax' (717) 732-9531 .(717) 7J2 9~32 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer ID: Shared Data Services Customer PO Payment Terms Sales Rep ID Due Date Net 30 Days 1 7/31/01 uly 2001 er hr Descri tion Dana Showers Kable 24 hrs @ 100.00 Amount 2,400.0 Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL 2,400.( 2,400.C 2,400.0 EK~2. Cent.ral PA Data Services, Inc. 138 Tory Circle Enola, PA 17025 USA . , Invoi . Invoice Numt 2 Voice: Fax' - (717) 732-9531 (717) /,jL. :J~:J2 Invoice Dc 7/1/ Pa Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Sales Rep 10 Due Date Net 30 Days 7/31/01 July 2001 per hr Expenses wk Expenses wk Description Dana Showers MDCH 149.5 hrs @ 100.00 Amount 14,950.0 7/22/01 7/29/01 $1778.15 $1136.80 1,778.1 1,136.8 I.- Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL 17,864.~ 17,864.S 17,864.S C:)( -$f 3 Central PA Data Services, 138 T~ry Circle Enola, PA 17025 USA Inc. Invoi( Invoice Numb. 2: Voice: Fax: (717) 732-9531 (717) 732-9532 Invoice Da 8/31/< Pa~ Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Sales Rep 10 Due Date Due Upon Receipt 1 8/31/01 Description ~ugust 2001 MDCH Consulting services - 42 hours @ $100.00 Expenses MDCH Week ending 8/4/2001 Amount 4,200.0( 714.81 Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL 4,914.E 4,914.E 4,914.E G'")( ~ '-I , , Irrvoic Invoic,e Numb 2: Invoice Oa 10/6/. Pal Central PA-Data Services, Inc. 138 Tory Circle Enola, PA 17025 USA Voice: Fax: (717) 732-9531 (717) 732-9532 Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Sales Rep 10 Due Date Due Upon Receipt 1 10/6/01 Description ~eptember 2001 - Kable News - Consulting Services - 44.5 hours @ 1$100.00 Amount 4,450.0 Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL 4,450.1 ~.. 4.5 0 . I '4,450.1 Gx itt5 .' Central PA Data Services, Inc. 138 Tory Circle Enola, PA 17025 USA I.nvoic Invoice NumbE 2: Voice: Fax: (717) 732-9531 (717) 732-9532 Invoice Oat 10/31/1 Pag Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Sales Rep 10 Due Date Due Upon Receipt 1 10/31/01 Description October 2001 - ALDIR - Consulting Services - 187 hours @ $100.00 Expenses - week of 10/06/01 Amount 18,700.0C 1,664.3E Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL 20,364.3 20,364.3 20,364.3 lE"X ~t . I Voice: Fax: (717) 732-9531 (717) 732-9532 Invoicl Invoice Numbe 22 Invoice DatE 12/4/0 PagE Central PA Data Services, Inc. 138 Tory Circle Enola, PA 17025 USA Duplicate Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Sales Rep 10 Due Date Due Upon eciept 1 1217/01 Descri tion Amount 11/04 Banktec Consulting Services 28 hours @ $100.00 2,800.00 11/11 Banktec Consulting Services 60 hours @ $100.00 6,000.00 11/18 Banktec Consulting Services 58 . 5 hours @ $100.00 5,850.00 11/25 Banktec Consulting Services 27.5 hours.@ $100.00 2,750.00 12/02 Banktec Consulting Services 34.5 hours @ $100.00 3,450.00 WI< 11/03/01 781. 85 WK 11/10101 628.45 enses WI< 11/17/01 660.01 WI< 11/24/01 640.89 WK 12/01/01 515.20 Check No: Subtotal Sales Tax Total Invoice Amount Payment Receivec TOTAL 24,076.4( 24,076.4C 24,076.4C I..=-X ~ 7 Central PA Data Services, Inc. 138 Tory Circle Enola, PA 17025 USA Invoict Invoice Numbel 23 Voice: Fax: (717) 732-9531 (717) 732-9532 Invoice Date 1/27/0: Page Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Sales Rep 10 Due Date Due upon reciept 1 1/29/02 Descri tion Amount 1-06-02 BancTec Consulting Services 26 hours @ $100.00 2,600.00 1-13-02 BancTec Consulting Services 55 hours @ $100.00 5,500.00 1-20-02 BancTec Consulting Services 62.5 hours @ $100.00 6,250.00 1-27-02 BancTec Consulting Services 59 hours @ $100.00 5,900.00 Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL 20,250.0( 20,250.0C 20,250.0C t=: 'x .. s? . . InvoicE Invoice' Number 23C Central PA Data Services, Inc. 138 Tory Circle Enola, PA 17025 USA Voice: Fax: (717) 732-9531 (717) 732-9532 Invoice Date 1/2/0: Page Duplicate Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Sales Rep 10 Due Date Due Upon Reciept 1 1/5/02 Oescri tion Amount 12/09/01 Banctec Consulting Services 75 hours @ $100.00 7,500.00 12/16/01 Banctec Consulting Services 48 hours @ $100.00 4,800.00 12/23/01 Banctec Consulting Services 17 hours @ $100.00 1,700.00 wk 12/08/01 1,061.35 wk 12/15/01 1,265.67 Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL 16,327.02 16,327.02 16,327.02 Ek .. 9 " . . Invoict Invoice Numbel 23: Central PA Data Services, Inc. 138 Tory Circle Enola, PA 17025 USA Voice: Fax: (717) 732-9531 . (717) 732-9532 Invoice Date 1/27/0 PagE Duplicate Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Sales Rep ID Due Date Due upon reciept 1 1/29/02 Descriotion Amount 1,921.00 1,065.40 862.32 E:xpenses E:xpenses E:xpenses 01-12-02 01-19-02 01-26-02 Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL 3,848.7~ 3,848.72 3,848.72 g)( 1I#'!tJ .' , . InvoicE Invoice' Number 23~ Central PA Data Services, Inc. 138 Tory Circle Enola, PA 17025 USA Voice: Fax: (717) 732-9531 . (717) 732-9532 Invoice Date 3/4/0: Page Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Sales Rep ID Due Date Due upon presentation 1 3/15/02 1/28/02 2/04/02 2/11/02 BancTec BancTec BancTec Descri tion Consulting Consulting Consulting Services Services Services 53 60.5 14 hours hours hours @ @ @ $100.00 $100.00 $100.00 Amount 5,300.00 6,050.00 1,400.00 Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL 12,750.0C 12,750.00 12,750.00 E )( '" /I I. I" I ". Central PA Data Services, 138 Tory Circle Enola, PA 17025 USA Inc. InvoicE , Invoice Number 23< , . . Voice: Fax: (717) 732-9531 (717) 732-9532 Invoice Date 3/4/0: Page Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Sales Rep 10 Due Date Due upon presentation 1 3/15/02 Expenses Expenses WI< WI< 1/28/02 2/04/02 Description 2/03/02 2/10/02 Amount 1,226.34 757.63 Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL 1,983.9/ 1,983.97 1,983.97 ~x ~ 12- I , , , , , " . _ 11' , In voicE , " . Invoice Number 23~ . . Central PA Data Services, Inc. 138 Tory Circle Eno1a, PA 17025 USA Voice: Fax: (717) 732-9531 (717) 732-9532 Invoice Date 3/4/0: Page Sold To: Shared Data Services PNB 204 60 Chelsea Corners Chelsea, AL 35043 Customer 10: Shared Data Services Customer PO Payment Terms Sales Rep ID Due Date Due upon presentation 1 3/15/02 ~gent Form CMA Descriotion Franklin Poole Consulting Services 22 hours @ $100.00 Amount 2,200.00 Check No: Subtotal Sales Tax Total Invoice Amount Payment Received TOTAL 2,200.00 2,200.00 2,200.00 S-)< ~ I':;> ,~ ...(~ ........ w '(j ~ ~ ~ ,I I, CENTRAL PA DATA SERVICES, INC., Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2003-2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : CIVIL ACTION-LAW MOTION TO COMPEL NOW, comes Plaintiff, Central Pa Data Services, Inc. ("Central Pa"), by and through its attorneys, O'BRIEN, BARIC & SCHERER, and files the within Motion to Compel and, in support thereof, sets forth the following: 1. Plaintiff initiated this action to recover a debt owed for services provided by Plaintiff. 2. On or about November 18, 2003, Plaintiff served counsel for BancTec, Inc. ("BancTec") with a Request for Production of Documents and Interrogatories. True and correct copies of the Request for Production of Documents and Interrogatories are attached hereto as Exhibits "A" and "B", respectively, and are incorporated. 3. Responses to the Request for Production of Documents and Interrogatories were due on or before December 21,2003. 4. To February 5,2004, BancTec has filed no response to the Request for Production of Documents or the Interrogatories. , !' 5. By telephone conference, counsel for Plaintiff notified counsel for BancTec that answers were past due and Plaintiff would file a motion to compel if answers and production were not forthcoming. WHEREFORE, Plaintiff requests that BancTec, Inc. be directed and ordered to provide complete responses and answers to the Request for Production of Documents and Interrogatories within fifteen (15) days of said Order. Respectfully submitted, ~B;;(71 David A. Baric, Esquire I.D. 44853 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Central Pa Data Services, Inc. dab.dir/corporate/centralpadata/compel.mot CENTRAL PA DATA SERVICES, INC., Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 2003-2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : CIVIL ACTION-LAW REOUEST FOR PRODUCTION OF DOCUMENTS Pursuant to Pa.R.C.P. No. 4009, as amended, the Plaintiff, Central Pa Data Services and its attorneys, O'Brien, Baric and Scherer, request you to produce copies of the following documents, at its expense within thirty (30) days of service of this request. INSTRUCTIONS If you object to the production of any document on the grounds that the attorney-client, attorney work-product or any other privilege is applicable thereto, you shall with respect to that document: (a) State its date; (b) Identify its author; (c) Identify each person from whom the document was received; (d) Identify each person who received it; (e) Identify each person from whom the document was received; (f) State the present location of document and all copies thereof; EXHIBIT IIAII (g) Identify each person who has ever had possession, custody or control of it or copy thereof; and (h) Provide sufficient infonnation concerning the document and the circumstances thereof to explain the claim of privilege and to pennit the adjudication of the propriety of that claim. As referred to herein, "document" includes written, printed, typed, recorded, or graphic matter, however produced or reproduced, including correspondence, telegrams, other written communications, data processing storage units, tapes, contracts, agreements, notes, memoranda, analyses, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films, photographs, diagrams, drawings, minutes of meetings, or any other writing (including copies of any of the foregoing) regardless of whether you, your fonner or present counsel, agents, employees, officers, insurers, or any other person acting on your behalf, are now in possession, custody or control. DOCUMENTS REOUESTED I. Any and all documents identified in your responses to the Interrogatories of Central Pa Data Services, Inc. propounded upon BancTec, Inc. 2. Any and all records which reflect, refer or relate to the "expenses" incurred by you as referenced in paragraph 72 of your Counterclaim. 3. All documents which reflect, refer or relate to the "irrevocable letter of credit" referenced by you in paragraph 71 of your Counterclaim. 4. A copy of the perfonnance bond referenced at paragraph 70 of your Counterclaim. 5. Any and all documents which reflect, refer or relate to your agreement with ALDIR. 6. Any and all communications between you and ALDIR regarding the project. 7. Any and all documents which reflect, refer or relate to the work perfonned by Central Pa Data Services, Inc. on the ALDIR project. 8. All invoices provided by you to ALDIR for the project. 9. All documents which reflect, refer or relate to communications between you and Central Pa Data Services, Inc. 10. All documents which reflect, refer or relate to communications between you and Dana Showers. II. All documents which reflect, refer or relate to communications between you and Shared Data Services regarding the ALDIR project 12. All documents which reflect, refer or relate to communications between you and Richard Dame regarding the ALDIR project. Respectfully submitted, ~7/~ David A. Baric, Esquire !.D. 44853 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 dab.dir/corporatelceotralpadatalbaoctec.req CERTIFICATE OF SERVICE I hereby certify that on November / Cj . 2003, David A. Baric, Esquire, of O'Brien, Baric & Scherer, did serve a copy of the Request For Production Of Documents, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Douglas Miller, Esquire Irwin, McKnight & Hughes 60 West South Street Carlisle, Pennsylvania 17013 ~Jl~ci David A. Baric, Esquire CENTRAL PA DATA SERVICES, INC., Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2003-2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : CIVIL ACTION-LAW INTERROGATORIES OF CENTRAL PA DATA SERVICES. INC. PROPOUNDED UPON BANCTEC. INC. PLEASE TAKE NOTICE that you are hereby required pursuant to Pennsylvania Rules of Civil Procedure 4009.1, to file the original and serve upon the undersigned a copy of your Answers and Objections, if any, in writing and under oath, to the following Interrogatories within thirty (30) days after service of the Interrogatories; The Answers shall be inserted in the spaces provided. If there is insufficient space to answer an Interrogatory, the remainder of the answer shall follow on a supplemental sheet. These shall be deemed to be continuing Interrogatories. Ifbetween the time of filing your Answers and the time of trial of this matter, you, or anyone acting on your behalf, learn of any further information not contained in your Answers, or if you learn that any information set forth in your Answers is or has become inaccurate or incorrect, you shall promptly file and serve supplemental answers. EXIUBIT IIBII DEFINITIONS A. The term "document" as used herein shalI mean the original and any copy, marked up copy, revision, amendment, modification, non-identical copy and/or draft, or any written, printed, typed, drawn or other graphic matter of any kind or nature, however, produced or reproduced, whether or not sent or received, including without limitation; memoranda, reports, computations, estimates, communications, financial reports or statements, notes, transcripts, letters, correspondence, intra or inter office communications, envelopes, telegrams, cables, telephone messages, messages, emails, electronic transmissions, summaries or records of telephone conversations, summaries or records of personal conversations or interviews, minutes, notes, notations, tabulations, studies, analyses, reports, evaluations, projection, work papers, summaries, journals, statistical records, calendars, appointment books, diaries, plans, drawings, blue prints, modules, specifications, data, sketches, maps, boring logs, soil tests, soil charts, soil reports, sketch books, quantity books, material books, time log sheets, purchase orders, invoices, checks, receipts, payrolI records, summaries or records of meetings or conferences, minutes or tape recordings of meetings or conferences, summaries or reports of investigations, opinions or reports of consultants, questionnaires, surveys, charts, graphs, books, notebooks, note charts, articles, magazines, newspapers, booklets, circulares, bulIetins, press releases, notices, instructions, manuals, photographs, schedules, network diagrams, bar-charts, line-charts, motion picture film, microfilms, photographs, tapes or other recordings, punch charts, computer programs, magnetic tapes, discs, data celIs, drums, printout and other data computations from which information can be obtained, and marginal comments appearing on any documents, and all other writings in the possession, custody or control of Plaintiffs or their agents, officers, employees or attorneys. B. "Propounding Defendant" means Central Pa Data Services, Inc.. C. "Person" or "Persons" shall mean any natural individual or corporation, firm, partnership, proprietorship, association, joint venture, governmental entity or any other business or government organization. D. "Meeting" shall mean any assembly, convocation, encounter or coincidence of two or more persons for any purpose, whether or not planned, arranged or scheduled in advance. E. "Communication" shall mean any utterance made, human speech heard, overheard, or intended to be heard by any person, whether in person, by telephone, by means of sounding recording, or otherwise. F. "Identify" means: (a) When used in reference to a document, describe with sufficient particularity to form the basis for a Request for Production under Pa. R.C.P. 4009, including but not limited to the date it was prepared or created, the identity of its author or originator, the type of document ~, letter, telegram, chart, photograph, sound recordings, etc.), the identity of its addressee, its present location and the identity of its present custodian(s). If such document was, but is no longer, in your possession or subject to your control, state what disposition was made of it; (b) When used in reference to a natural person or business entity, "identify" means to state his or her or its full name, present or last known home address, present or last known business address, present or last known home telephone number, present or last known position or affiliation. G. "Accident," "incident" or "occurrence" mean the transaction or occurrence or series of transactions or occurrences giving rise to the matters for which you are seeking damages as indicated in the Complaint. H. "You" means BancTec, Inc. any of its representatives, officers, employees and/or agents. INSTRUCTIONS If you object to the production of any documents on the grounds that the attorney-client, attorney work product or any other privilege is applicable thereto, with respect to that document: (a) State its date; (b) Identify its author; (c) Identify each person who prepared or participated in the preparation of the documents; (d) Identify each person who received it; (e) (f) (g) thereof; and (h) Provide sufficient information concerning the document and the circumstances thereof to explain the claim of privilege and to permit the adjudication of the propriety of that claim. IdentifY each person from whom the documents were received; State the present location of the document and all copies thereof; IdentifY each person who has ever had possession, custody or control of it or copy INTERROGATORIES 1. Please identifY all individuals who have provided information contained in the answers to these interrogatories. ANSWER: 2. Please identify each and every representative, agent and/or employee of Shared Data Services who represented to you that the "software did not pass the January 2002 acceptance test..." as averred at paragraph 58 of your New Matter. a.) Please identify any representative, agent and/or employee of BancTec who was involved in or aware of the January, 2002 acceptance test. Please identify any representative, agent and/or employee of ALDIR who was involved in or aware of the January, 2002 acceptance test. b.) ANSWER: 3. For each person identified in response to interrogatory 2, please describe any and all information provided by each person to you. ANSWER: 4. Please identify any and ail documents which reflect, refer or relate to and of the representations made to you as averred at paragraph 58 of your New Matter. ANSWER: 5. Is the document attached to these Interrogatories as Exhibit" I " a form of agreement created by you. ANSWER: 6. Is the document attached to these Interrogatories as Exhibit "1" a Temporary Employee Agreement between you and Dana Showers. ANSWER: 7. If the answer to interrogatory number 6 is other than in the affirmative, please set forth your position regarding the purpose of Exhibit "1 ". ANSWER: 8. Please identifY any and all contracts between you and any other party regarding the ALDIR project as referenced at paragraph 65 of your Counterclaim. ANSWER: 9. Please identify any and all of your employees, agents and representatives who performed any work on the ALDIR project. ANSWER: 10. For each individual identified in response to interrogatory number 9, please describe the work performed by them. ANSWER: 11. Please identify each "engineers and employees" provided by you to recode the allegedly defective software, fix the programming or correct any other work which you contend was defective as referenced at paragraph 66 of your Counterclaim. ANSWER: 12. For each individual identified in response to interrogatory number 11, please describe the work performed by them. ANSWER: 13. For each individual identified in response to interrogatory number II, please describe the amount of time each spent perfonning the work and the amount you paid them to perfonn such work. ANSWER: 14. Please identifY any and all of your employees, representatives and/or agents who discussed the ALDlR project with Richard Dame. ANSWER: 15. For each individual identified in response to interrogatory number 14, please describe the discussions which took place. ANSWER: 16. Please identify any individual at ALDlR who communicated to you that they would not accept the work of Central Pa Data Services, Inc. ANSWER: 17. For each individual identified in response to interrogatory number 16, please describe the communication. ANSWER: 18. Please identify any and all documents which reflect, refer or relate to any communication by any individual at ALDIR to you which discuss or describe the work performed by Central Pa Data Services, Inc. ANSWER: 19. Please identify the principal contact person at ALDIR for each of the following components of the project a.) LT. Contract b.) Contract Acceptance Contact c.) Business Functionality Contact ANSWER: Respectfully submitted, ;a;::J2RE David A. Baric, Esquire I.D.44853 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 dab.dir/corporatelcentralpadatalbanctec.int CERTIFICATE OF SERVICE I hereby certify that on November / r, 2003, David A. Baric, Esquire, of O'Brien, Baric & Scherer, did serve a copy of Interrogatories Of Central Pa Data Services, Inc. Propounded Upon BancTec, Inc., by first class U.S. mail, postage prepaid, to the party listed below, as follows: Douglas Miller, Esquire Irwin & McKnight 60 West South Street C~H.'P~~ / If David A. Baric, Esquire II . CERTIFICATE OF SERVICE I hereby certify that on February J r, 2004, David A. Baric, Esquire, of O'Brien, Baric & Scherer, did serve a copy of a Motion To Compel, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Douglas Miller, Esquire Irwin & McKnight 60 West South Street Carlisle, Pennsylvania 17013 Richard Dame d/b/a Shared Data Services 6044 Camelot Court Montgomery, 36117-2554 David A. Baric, Esquire . . " c-: .:>:'" ..~ :< . "> C~) c~.;) ...1':- ~1 r... ., G:J o ." .-< -c rl'j;1I -r-,rn :nC-J ("'j : ~:~:8 ::i;"~ -~:-l 2"" _J -: 1'.) 2J ':z) a -.J II I CENTRAL PA DATA SERVICES, INC., Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2003-2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : CIVIL ACTION-LAW RULE TO SHOW CAUSE AND NOW, this ~ay of F<' C . , 2004, upon consideration of the Motion To Compel, a rule is issued upon Defendant to show cause, if any there be, why the relief requested in the Motion should not be granted. Rule returnable 2- 0 days from service. tiff ~~R, 1 I P . ~' ~ '~ i "l\. "{,WiG ~ 9Z :! I UV 6! Elij ~Dal ',..I\:I'("".'.~I'O"J -"I '0 N.::n.L );\UI I... de .::i;1_':" 381:1::0-0311:1 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE ProrHOlQI'ARY OF CUMBERLAND COUNI'Y Please list the following case: (Check one) for JURY trial at the next term of civil =urt. x for trial without a jury. ----------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) (X Civil Action - Law Appeal from Arbitration (other) CENTRAL PA DATA SERVICES, INC., (Plaintiff) vs. RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., The trial list will be called on and Trials comnence on (Defendant) Pretrials will be held on (Briefs are due 5 days before pretrials. ) vs. (The party listing this case for trial shall provide forthwith a =py of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 2395 Civil Term" :l(~ 2003 Indicate the attorney who will try case for the party who files this praecipe: David A. Baric, Esq., 19 West South Street, Carlisle, PA 17013 Indicate trial counsel for other parties if known: Douglas Miller, Esq., 60 West Pomfret Street, Carlisle, PA 17013 This case is ready for trial. ,,_,~~!a, Print Nane: David A. Baric, Esquire Date: May 9, 2005 Attorney for: Plaintiff 0 ....' -, c.':? '--' ',-" = 'n W4 -;' \ \1:> :::;:;>~ _.oJ.' -~... C' l.l:::' --- CENTRAL PA DATA SERVICES,A:NC"::' Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA /v. / .J RICHARD DAME, Defendant CIVIL ACTION - LAW NO. 03-2395 CIVIL TERM ORDER OF COURT AND NOW, this 11th day of May, 2005, a pretrial conference in the above matter is scheduled for Friday, July 15, 2005, at 1:30 p.m., in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. A NONJURY TRIAL in the above matter is scheduled for Thursday, August II, 2005, at 9:30 a.m., in Courtroom No. I, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, .-E1ilvid A. Baric, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Plaintiff ;. J. . vDouglas G. Miller, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant /j - o.-S OS' \0' , . Court Administrator's Office - J\.;1;1' r v,j.~Vf ''1//,,,'):-;. :;- :::'t:.--' ','" ,., iJ :('1 l.ri 71 I '11..] (iiflZ 0: v.,,, .... 1.", ..,.L.I 3Hl ::10 -' ~i:+;C: <EnH CENTRAL PA DATA SERVICES, INC.,: Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW 2003-2395 CIVIL TERM RICHARD DAME, d/b/a SHARED DATA: SERVICES AND BANCTEC, INC., Defendants JURY TRIlIL DEMANDED IN RE: PRETRIAL CONFERENCE A pretrial conference was held in the chambers of Judge Oler on Friday, July 15, 2005. Present on behalf of the Plaintiff was David A. Baric, Esquire. Present on behalf of Defendant, BancTec, Inc., was Douglas G. Miller, Esquire. Defendant Richard Dame d/b/a Shared Data Services did not appear through counselor in person at the conference, and no pretrial memorandum was submitted on behalf of Defendant Dame. It is understood, however, that Defendant Dame was served with original process in this case. With respect to Defendant BancTec, Inc., Plaintiff's causes of action are breach of contract and quantum meruit; with respect to Defendant Richard Dame, Plaintiff's actions are for breach of contract, quantum meruit, intentional interference with contractual relations, and conversion. The case arises out of a complicated business relationship whereby certain services were being provided to the State of Alabama by the parties herein, acting in different, and for purposes of this case, disputed capacities. Defendant BancTec, Inc., has filed a counterclaim against Plaintiff Central PA Data Services, Inc., for breach of contract based upon an allegedly deficient performance by Plaintiff of its contractual obligations. This will be a nonjury trial of an estimated duration of 2 days. By separate Order of Court, the portion of the Order of Court dated May 11, 2005, schejuling an initial day of trial for Thursday, August 11, 2005, will be vacated, and trial in this matter will be rescheduled for Wednesday, November 30, 2005, commencing at 9:30 a.m., and Thursday, December 1, 2005, commencing at 9:30 a.m. This change in scheduling has been agreed upon by both counsel. It is anticipated that counsel for Defendant BancTec, Inc., will be filing a petition~o amend its answer with new matter to assert an affirmative defense of collateral estoppel arising out of a prior suit by Plaintiff against Defendant Richard Dame, which was apparently concluded by a default judgment against Defendant Dame. Counsel are requested to furnish to the Court briefs on the issue of collateral estoppel as it mayor may not apply to this case at least 5 days prior to commencement of the initial day of trial. With respect to settlement negotiations, it does not appear to the Court that settlement is likely, although a more than nominal offer appears to have been made by Defendant BancTec, Inc., to resolve the case, By the Court, ~avid A. Baric, Esquire 19 West South Street Carlisle, PA 17013 for Plaintiff jDOuglas G. Miller, Esquire West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 For Defendant BancTec, Inc. :mae ichard Dame Shared Data Services PNB 204, 60 Chelsea Corners Chelsea, Alabama 35043 ~ (\\) <\' 21 : I lid 02 -liT SOal Al:JV10i\!C:' 3Hl :10 ;Ji:!.:K>{j:Jli.~J ,."."",0;, CENTRAL PA DATA SERVICES, INC.,: IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW 2003-2395 CIVIL TERM RICHARD DAME, d/b/a SHARED DATA: SERVICES AND BANCTEC, INC., Defendants JURY TFlIAL DEMANDED IN RE: NONJURY TRIAL ORDER OF COURT AND NOW, this 15th day of July, 2005, following a pretrial conference in the above-captioned case, in which David A. Baric, Esquire, appeared on behalf of the Plaintiff, and Douglas G. Miller, Esquire, appeared on behalf of Defendant BancTec, Inc., and pursuant to an agreement of counsel, the nonjury trial in this matter is scheduled for Wednesday, November 30, 2005, commencing at 9:30 a.m., and for Thursday, December 1, 2005, commencing at 9:30 a.m. The portion of the Order of Court dated May 11, 2005, scheduling trial for August 11, 2005, is vacated. By the Court, ~ ~vid A. Baric, Esquire 19 West South Street Carlisle, PA 17013 For Plaintiff ~ared Data Services Atten: Richard Dame PNB 204, 60 Chelsea Corners Chelsea, Alabama 35043 :mae ~~.~~ tkZ ~c9 :\,r () ~uglas G. Miller, Esquire West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 For Defendant BancTec, Inc. 'H f= tc ~ r t j::: - () ~ t ....z ~ r" I ". ,. CENTRAL PA DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW : 2003 - 2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. JURY TRIAL DEMANDED ANSWER TO PLAINTIFF'S NEW MATTER AND NEW MATTER PURSUANT TO PA.R.C.P, 2252(D) AND NOW this 22nd day of November, 2005, comes Defendant BANCTEC, INC. by and through its attorneys, Irwin & McKnight, and respectfully files this Answer to Plaintiff's Answers and New Matter dated December 15, 2003, and in support thereof aver as follows: 75. The averments of fact contained in the Answers, New Matter and Counterclaim of Defendant BancTec, Inc. to the Plaintiff's Complaint are hereby incorporated by reference and are made part of this Answer to Plaintiff's New Matter. 76. The averments contained in paragraph seventy-six (76) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 77. The averments contained in paragraph seventy-seven (77) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 78. The averments contained in paragraph seventy-eight (78) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. , > 79. The averments contained in paragraph seventy-nine (79) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 80. The averments contained in paragraph eighty (80) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 8!. The averments contained in paragraph eighty-one (81) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 82. The averments contained in paragraph eighty-two (82) are conclusions of taw to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 83. The averments contained in paragraph eighty-three (83) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 84. The averments contained in paragraph eighty-four (84) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. ANSWER TO NEW MATTER PURSUANT TO PA.R.C.P. 2252(D) 85. The averments of fact contained in the Answers, New Matter and Counterclaim of Defendant BancTec, Inc. to the Plaintiff's Complaint are hereby incorporated by reference and are made part of this Answer to Plaintiff's New Matter. 86. The averments contained in paragraph eighty-six (86) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specificall y denied and strict proof thereof is demanded at trial. 2 ~ WHEREFORE, Defendant BancTec, Inc. respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. Respectfully Submitted, IRWIN & McKNIGHT By: Dougla . Miller, Esquire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant BancTec, Inc. Dated: November 22,2005 3 . - VERIFICATION The foregoing document is based upon information that I have gathered in my capacity as corporate counsel and in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. BANCTEC, INC. , /'/. i By: ~(/,:'. .... Date: ,ttVC;..e;"c7": /1' , 2005 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by facsimile and/or first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: David A. Baric, Esquire 19 West South Street Carlisle, PA 17013 (Attorney for Plaintiff) Shared Data Services Attn: Richard Dame PNB 204, 60 Chelsea Corners Chelsea, Alabama 35043 (Defendant) Date: November 22,2005 IRWIN & McKNIGHT Douglas . Miller, Esquire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant BancTec, Inc. 1',-" C ~ "j 1.._...... .~ o -n I..:) '.,-~ r',_) !'",l <:' J II CENTRAL PA DATA SERVICES, INC., Plaintiff, V. RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2003-2395 CIVIL TERM : CIVIL ACTION-LAW REPLY TO AMENDED NEW MATTER OF BANCTEC. INC, NOW, comes Plaintiff, Central Pa Data Services, Inc., by and through its attorneys, I i, I I i i I' I O'BRIEN, BARIC & SCHERER, and files the within Reply to Amended New Matter of BancTec, Inc. as follows: 38.- 42. Plaintiff incorporates by reference its Reply to New Matter as previously filed as though set forth at length. herein. 43. To the extent these averments are conclusions of law, no response is required. to the extent a response may be required the averments are denied. To the contrary, the default judgment entered against Richard Dame does not have a preclusive effect on the instant matter and Plaintiff is not estopped. 44.-62. Plaintiff incorporates by reference its Reply to New Matter as previously filed as though set forth at length herein. " WHEREFORE, Plaintiff requests judgment in its favor and against Defendants as prayed for in Plaintiffs complaint. Respectfully submitted, ~72~ David A. Baric, Esquire LD. 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff I I dab.dir/corporate/centraipadata/dame/amendednewmatter.rep 1- 'I . VERIFICATION The statements in the foregoing Reply To New Matter Of BancTec, Inc. are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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. S 4904 relating to unsworn falsifications to authorities. DATE: J l~l1-1CD5 . ~AA_J AenA~A_~ Dana Showers II II II . CERTIFICATE OF SERVICE I hereby certify that on NovemberjO, 2005, David A. Baric, Esquire, of O'Brien, Baric & IJ- Scherer, .did serve..w.o coplfs of the Reply To Amended New Matter Of BancTec, Inc., by fl+!ib /.ht Iv "D D (;D: ,t c-Ie'1 ~b<< T T :ii. lR~il, F,,<tog" prepaid, to the party listed below, as follows: I iI II , Douglas Miller, Esquire Irwin & McKnight 60 West Pomfret Street C~H"I" P,""",I","" 17013 k 4 David A. Baric, Esquire i I II i I I I Ii Ii Ii ,I Ii , C-i -'il --, -r (i1 C) ~---.j :: -~, \ro-, en r",'. CENTRAL PA DATA SERVICES, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW RICHARD DAME d/b/a SHAREN DATA SERVICES and BANCTEC, INC., Defendants NO. 03-2395 CIVIL TERM ORDER OF COURT AND NOW, this 28th day of November, 2005, upon consideration of Defendant BancTec, Inc.'s Petition for Leave To Amend New Matter, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE at the nonjury trial scheduled for Wednesday, November 30, 2005, at 9:30 a.m. BY THE COURT, ~chard Dame d/b/a Shared Data Services PNB 204 60 Chelsea Comers Chelsea, AL 35043 Defendant, pro se \. ~id A. Baric, Esq. 19 West South Street Carlisle, P A 17013 Attorney for Plaintiff 1\ 71 "" , .( 11.1 . / ;, v OJ: ,Douglas G. Miller, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant BancTec, Inc. :rc NOV 2 2 2005 VI CENTRAL PA DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY. PENNSYLVANIA v. CIVIL ACTION. LAW : 2003 - 2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. : JURY TRIAL DEMANDED RULE TO SHOW CAUSE AND NOW, this day of , 2005, upon consideration of Defendant BancTec, Inc.'s Petition for Leave to Amend New Matter, a Rule is entered on the Plaintiff to show cause, if any, why the relief requested should not be granted and Defendant BancTec, Inc. be permitted to amend paragraph forty-three (43) of its New Matter as follows: 43. Plaintiff's Complaint fails to state claims or causes of action upon which relief can be granted against Answering Defendant, and Plaintiff's prior Complaint and Judgment at Docket No. 2002 - 2590 against Defendant Richard Dame d/b/a Shared Data Service estop Plaintiff from asserting claims to the contrary, thereby barring Plaintiff's action against Answering Defendant. Rule returnable November ,2005. J, CENTRAL PA DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW : 2003 - 2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants. JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2005, upon consideration of Defendant BancTec, Inc.'s Petition for Leave to Amend New Matter, and any responses thereto, it is hereby ORDERED that the said Petition is granted and paragraph forty-three (43) of Plaintiff's New Matter is hereby amended to read as follows: 43. Plaintiff's Complaint fails to state claims or causes of action upon which relief can be granted against Answering Defendant, and Plaintiff's prior Complaint and Judgment at Docket No. 2002 - 2590 against Defendant Richard Dame d/b/a Shared Data Service estop Plaintiff from asserting claims to the contrary, thereby barring Plaintiff's action against Answering Defendant. J. CENTRAL PA DATA SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW : 2003 - 2395 CIVIL TERM RICHARD DAME d/b/a Shared Data Services and BANCTEC, INC., Defendants, JURY TRIAL DEMANDED DEFENDANT BANCTEC. INC.'S PETITION FOR LEAVE TO AMEND NEW MATTER AND NOW, this 22nd day of November, 2005, comes Defendant BANCTEC, INC. by and through its attorneys, Irwin & McKnight, and petitions this Court under Pa. R.c.P. 1033 for leave to amend its new matter, and in support thereof represents the following: 1. In his complaint, Plaintiff alleges that there is an issue of fact as to whether the Plaintiff was a subcontractor of Defendant, Richard Dame or a temporary employee of Defendant Banctec, Inc. 2. In a prior action against Richard Dame d/b/a Shared Data Services that was filed with this Court at Docket No. 2002 - 2590, Civil Term, Plaintiff pled that it was a subcontractor of Richard Dame d/b/a Shared Data Services. 3. Plaintiff alleged that Richard Dame d/b/a Shared Data Services breached its subcontractor agreement and that Plaintiff had rendered services for which it was owed $107,047.02. 4. In that prior action, Plaintiff received a default judgment against Defendant Richard Dame d/b/a Shared Data Services. 5. The instant action was filed against both the Petitioning Defendant and Richard Dame d/b/a Shared Data Services, requesting the same damages of $107,047.02. 6. Defendant BancTec, Inc. was unaware of the prior action by Plaintiff against Richard Dame until its legal counsel was recently contacted by Defendant Richard Dame. 7. During that conversation, Richard Dame indicated that he had been deposed by Plaintiff, but legal counsel for Defendant BancTec, Inc. had not been part of any such discovery. 8. Defendant Richard Dame subsequently provided a copy of his deposition, upon which time legal counsel for Defendant BancTec, Inc. was made aware of the prior action filed by Plaintiff and resulting default judgment against Defendant Richard Dame d/b/a Shared Data Services. 9. Plaintiffs current attempt to question his status as a subcontractor of Defendant Richard Dame is barred by his previous admission of the status in the prior suit against Defendant Richard Dame under the doctrines of Judicial Estoppel and/or Collateral Estoppel. See e.g. Wallace v. Workers' Compensation Appeal Board (Bethlehem Steel). 854 A.2d 613, 618 (Pa, Commw. 2004). 10. As a general rule, a party to an action is estopped from assuming a position inconsistent with its successful assertion in a previous action. Wallace, 854 A.2d at 618. 2 11. Judicial estoppel is particularly concerned with the integrity of the courts and there is no requirement that the issue actually be litigated or adjudicated. See In re Adoption of S.A..T., 575 Pa. 624, 635-636, 838 A.2d 616, 622-623 (2003) 12. Plaintiff will not be unduly prejudiced or surprised by this amendment, especially since the Plaintiff instituted the prior action, obtained the default judgment, and then elected to file a new action against both the same Defendant Richard Dame d/b/a Shared Data Services and the new Defendant BancTec, Inc. 13. Neither Plaintiff nor its legal counsel informed Defendant BancTec, Inc. of the existence of the prior litigation and judgment for the same amount now claimed against Petitioner. 14. Rule 1033 allows amendment of pleadings at any time with leave of court, and the generally recognized policy is to liberally allow amendments in accord with Rule 126. See 3 Goodrich-Amram 2d ~ 1033:6. WHEREFORE, Defendant BancTec, Inc. respectfully requests that this Court enter an order allowing defendant to amend its new matter as aforesaid. IRWIN & McKNIGHT By: Douglas . Mill r, Esquire Supreme Court 1.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant, BancTec, Inc. Date: November 22, 2005 3 VERIFICATION The foregoing document is based upon information that I have gathered in my capacity as corporate counsel and in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. BANCTEC, INC. // By: '-;<{:. -- Date: ,.i/y";~1.Uj'c'( />' , 2005 . , . CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by facsimile and/or first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: David A. Baric, Esquire 19 West South Street Carlisle, P A 17013 (Attorney for Plaintiff) Shared Data Services Attn: Richard Dame PNB 204, 60 Chelsea Corners Chelsea, Alabama 35043 (Defendant) Date: November 22, 2005 IRWIN & McKNIGHT ~ . Miller, Esquire Supreme ourt LD. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant Banctec, Inc. t..~ \-~ ~inl .-, , , L, f-.') (',) ~? r-~,' C:J ,;1\ CENTRAL PA DATA SERVICES, INC.,: IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW 2003-2395 CIVIL TERM RICHARD DAME, d/b/a SHARED DATA: SERVICES AND BANCTEC, INC., Defendants JURY TRIl,L DEMANDED IN RE: NONJURY TRIAL ORDER OF COURT AND NOW, this 1st day of December, 2005, upon consideration of Plaintiff's complaint and of the amended counterclaim filed on behalf of Defendant, BancTec, Inc., and following a nonjury trial, the record is declared closed, and the matter is taken under advisement. By the Court, i-~~u(e(l \~-{jcnj,c t. ~vid A. Baric, Esquire 19 West South Street Carlisle, PA 17013 For Plaintiff ~red Data Services Atten: Richard Dame PNB 204, 60 Chelsea Corners Chelsea, Alabama 35043 ~uglas G. Miller, Esquire West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 For Defendant BancTec, Inc. :mae ~~ :~05'o? ~'::) \. .. c"J I c-J ,-------------- CENTRAL PA DATA SERVICES, INC.,: IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW 2003-2395 CIVIL TERM RICHARD DAME, d/b/a SHARED DATA: SERVICES AND BANCTEC, INC., Defendants JURY TRIAL DEMANDED IN RE: PETITION FOR LEAVE TO AMEND NE'N MATTER ORDER OF COURT AND NOW, this 30th day of November, 2005, upon consideration of Defendant BancTec, Inc. 's, Petition for Leave To Amend New Matter, the petition is granted. By the Court, , !w~c ~vid A. Baric, Esquire 19 West South Street Carlisle, PA 17013 For Plaintiff Shared Data Services Atten: Richard Dame PNB 204, 60 Chelsea Corners Chelsea, Alabama 35043 ~glas G. Miller, Esquire West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 For Defendant BancTec, Inc. :mae v<""3~G\\ecl. '\jo.tCl ServIce.. r::-~ , >J ~- , . CENTRAL P ADA T A SERVICES, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LA W RICHARD DAME d/b/a SHARED DATA SERVICES and BANCTEC, INC., Defendants NO. 03-2395 CIVIL TERM IN RE: VERDICT AND NOW, this 5th day of December, 2005, upon consideration of Plaintiff's Complaint and of the Amended Counterclaim filed on behalf of Defendant Banctec, Inc., and following a nonjury trial, and it appearing that a default judgment has been entered in favor of Plaintiff against Defendant Richard Dame, the court finds as follows: I. In favor of Defendant Banctec, Inc., and against Plaintiff Central PA Data Services, Inc., on the complaint filed by Plaintiff Central PA Data Services, Inc.; and 2. In favor of Plaintiff Central PA Data Services, Inc., and against Defendant Banctee, Inc., on the amended counterclaim filed by Defendant Banetec, Inc. BY THE COURT, . ,cP i)V \~\) 1',; " 1: '. David A. Baric, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Plaintiff Douglas G. Miller, Esq. 60 West Pomfret Street Carlisle, P A 17013 Attorney for Defendant Banctec, Inc. Richard Dame d/b/a Shared Data Services I'NB 204 60 Chelsea Corners Chelsea, AL 35043 Defendant, pro se :rc