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HomeMy WebLinkAbout03-3442COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS JUDICIAL DISTRICT NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT NOTICE OF APPEAL Notice is given that the appellant has filed in the above Coud of Common Pleas an appeal from the judgment rendered by the District Justice on the dale and in the case mentioned below. NAME OF APPELLANT United Van Lines, LLC ADDRESS OF APPELLANT ~One Un.ired Drive : DATE OF JUDGMENT I I 6/23/03 CLAIM NO. CV YEAR IN THE CASE DP (P~INTIF~ United Van Lines, LLC 0000046-03 LT YEAR This block will be signed ONLY when this notation is required under PA. R.C.P.J.P. No. 1008B. This notice of Appeal, when received by the District Justice, wilt operate as A SUPERSEDEAS to the Judgment for possession in this case. MAG, DIST. NO, OR NAME OF D.J, 09-3-03 CITY STATE ZIP CODE Fenton MO 63026 (OEFENDANT) v~. Antonio & Michelle Lopez SIGNATURE Or APPELLANT OR HIS ATTORNEY OR AGENT ~ lfappellantwas Claimant (see PA R,C.P.J.P. ~./No. 1001(6)) in action before district Justice, he MUST FILE A COMPLAINT witl~in twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see PA R.C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED. detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon .... appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros, RULE: To , appellee(s) (1) (2) (3) Signature of appellant or his attorney or agent Name of appellee(s) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days after the date of service of this rule upon you by personal service or by cedified or registered mail. If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU UPON PRAECIPE. The date of service of this rule if service was by mail is the date of the mailing. Date: ,Year Signature of Prothonota,,y or Deputy White - Prothonotary Copy Green - Court File Copy Yellow - Appelant's Copy Pink - Appellee Copy Gold - D.J. Copy Proth, - 76 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check applicable boxes COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby swear or affirm that I served ['-'~a copy of the Notice of Appeal, Common Pleas No. , upon the Distric~ Justice designated therein on (date o! service) , year __ ., [] by personal service []by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name _. , on __ __, year __, [] by personal service [] by (certified) (registered) mail, sender's receipt attached hereto. [~] and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on __, year ____, [] by personal s~rvice [] by (certified) (registered) mail, sender's receipt attached hereto. SWORN AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF _, YEAR S;gnature of Affiant My commission expires on , year COMMONWEALTH OF PENNSYLVANIA (~OUNTY OF: 09-3-03 SUSAN K. DAY ^~d~e~: 229 MILL STREET, BOX 167 MT. HOLLY SPRINGS, PA Te,.pho..: {717 ) 486-7672 17065 ATTORNEY FOR PLAINTIFF : JOSHUA HORN, ESQ 200u W2~KET STREET 10TH FLOOR PHILADELPHIA, PA 19103-3291 NOTICE OF JUDGMENT/TRANSCRIPT p A,NT,FF/JUD ME / rO ASE UNITED VAN I~INES, LLC ONE UNITED DRIVE FENTON, MO 63026-1350 VS. DEFENDANT/JUDGMENT C~ I~Tn(~,~:~OR ES S [-LOPEZ, AITI~NIO & MICHELLE, ET AL. 4716 LAKEWOOD DRIVE METAIRIE, LA 70002 L Docket No.: CC- 0000046 - 03 Date Filed: 2/11/03 THIS IS TO NOTIFY YOU THAT: Judgment: ~ Judgment was entered for: (Name) [-~ Judgment was entered against: (Name) in the amount of $ . OCt on: ~--] Defendants are jointly and severally liable. ~ Damages will be assessed on: [--~ This case dismissed without prejudice. --}Amount of Judgment Subject to Attachment/Act 5 of 1996 $ FOR DEFRNDANT (Date of Judgment) (Date & Time) Amount of Judgment $ . O0 Judgment Costs $ . O0 interest on Judgment $ . O0 Attorney Fees $ . O0 Total $ .0 0 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTFrRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR DISTRICT JUSTICES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE DISTRICT JUSTICE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE DISTRICT JUSTICE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. I certify that this is a true '~nd co'~rrect~opy of the reco"~l of ,hlproceedings containing the judgment. Date , District Justice My commission expires first Monday of January, 2004 . AOPC315-03 DATE PRINTED: 6/24/03 12:54:49 PM SEAL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY UNITED VAN LINES, LLC, Plaintiff, V. ANTONIO AND MICHELLE LOPEZ, Defendants. CIVIL ACTION NO. 03-03442 PROOF OF SERVICE I, Joshua Horn, Esquire, attorney for plaintiff, United Van Lines, LLC, hereby certify that on July 23, 2003, I served the notice of appeal of United Van Lines, LLC via certified mail, return receipt requested, proof of which is attached hereto as Exhibit "A", on the following: John H. Broujos, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Attorney for Defendants District Justice Susan K. Day 229 Mill Street, Box 167 Mt. Holly Springs, PA 17065 2000 Market Street, 10th Floor Philadelphia, PA 19103 (215) 299-2000 Date: July 23, 2003 0!37 Return Rece[pt Fee $0.00 MIDDLE CITY POSTAL STORE PHILAOELPMIA, Pennsylvania 191039997 07/23/2003 (800)275-8777 12:47:36 PM -- Sales Receipt Product Sale Unit Final Description Oty Price Price MOUNT MOLLY SPRINGS PA $0,37 17065 First-Class Return Receipt $1,75 Certified $2,30 Label Serial #: 70001530000029495384 Customer Postage -$4.42 Subtotal: $0.00 CARLISLE PA 17013 $0.37 First-Class Return Receipt $1.75 Certified $2.30 Label Serial #: 70001530000029495414 Customer Postage -$4.42 Subtotal: $0.00 Total: $0.00 Paid by: Bill#: 1000401599575 Clerk: 02 Refunds only per DMM PO14 Thank you for your business Customer Copy UNITED VAN LINES, LLC, Plaintiff V. ANTONIO LOPEZ and MICHELE LOPEZ, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL DIVISION - LAW : : NO. 2003 - 3442 .. PRAECIPE TO THEPROTHONOTARY: Please enter my appearance on behalf of Defendants Antonio and Michele Lopez. August 1, 2003 c: Joshua Horn, Esquire BROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, Pennsylvania 17013 717/243-4574; 717/766-1690 FAX 717/243-8227 FOX ROTHSCHILD LLP BY: Joshua Horn, Esquire and David T. Games, Esquire IDENTIFICATION NOs. 71799 and 85998 2000 MARKET STREET, TENTH FLOOR PHILADELPHIA, PA 19103-3291 (215) 299-2000 ATTORNEYS FOR PLAYNTIFF UNITED VAN LINES, LLC UNITED VAN L1NES, LLC, One United Drive Fenton, MO 63026-1350, Plaintiff, ANTONIO LOPEZ and MICHELLE LOPEZ, H/W, 4716 LAKEWOOD DRIVE METAIRIE, LA 70002, Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 004(r45- NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth 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 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 COMPLAINT Plaintiff, United Van Lines, LLC ("United"), by and through its attorneys, Fox Rothschild LLP, hereby files this complaint against defendants, Antonio Lopcz and Mich¢lle Lopez (collectively, the "Defendants"), and avers as follows: TItE PARTIES 1. United is a Missouri limited liability company whose principal place of business is located at One United Drive, Fenton, Missouri 63026-1350. United is a motor carrier of household goods and personal property, and regularly conducts business in the Commonwealth of Pennsylvania. 2. Defendants are citizens of the state of Louisiana who reside at 4716 Lakewood Drive, Metairie, Louisiana 70002. JURISDICTION AND VENUE 3. Venue is proper in Cumberland County pursuant to Pennsylvania Rule of Civil Procedure 2179 because United regularly conducts business in Cumberland County and all of the transactions or occurrences that give rise to these proceedings took place in Cmnberland County. Jurisdiction is specifically granted to this Court over these proceedings pursuant to 28 U.S.C. § 14706(d)(3). BACKGROUND 4. The matters complained of herein and the liability of Defendants is predicated upon the interstate transportation of cargo by United, pursuant to a Uniform Household Goods Bill of Lading and Freight Bill ("Bill of Lading"), and United's duly published tariffs incorporated therein by reference. -2- See 49 U.S.C. §§ 13702 and 13706. A true, accurate and complete copy of the Bill of Lading, which incorporates by reference United's published tariffs, is attached hereto as Exhibit "A." 5. On or about July 10, 2001, Defendants entered into and accepted a contract with United for the interstate shipment of Defendants' cargo from 285 Fairview Drive, Carlisle, Pennsylvania 17013 to 4716 Lakewood Drive, Metairie, Louisiana 70002, which was delivered by United on July 17, 2001. 6. To assist them in their move, Defendants retained the services of Worldwide Relocation Services, LLC ("Worldwide"). 7. United has no contractual or business relationship with Worldwide. 8. Pursuant to the Bill of Lading, Defendants were the shippers, consignors and consigne6s of their household goods. COUNT I JOINT AND SEVERAL LIABILITY UNDER THE BILL OF LADING 9. United incorporates by reference as if set forth at length herein the allegations in paragraphs 1 through 8 above. 10. Pursuant to the Bill of Lading, United provided transportation services to Defendants. 11. As a result of the transportation services that were accepted by Defendants, United remitted an invoice to Defendants in the amount of $5,800.99. A true, accurate and complete copy of invoice number 0268 01124 1 is attached hereto as Exhibit "B." 12. Defendants refused to pay United for the transportation charges that they incurred because, unbeknownst to United, Defendants allegedly paid Worldwide for the relocation services that United provided to Defendants. 13. United was not privy to any agreement between Defendants and Worldwide; in fact, any agreement between Defendants and Worldwide (and any payments thereunder), does not effect Defendants' contractual obligations to United. 14. United has no control or authority over Worldwide and is not associated with Worldwide in any way. 15. The Bill of Lading states, in part, "[i]f credit is extended by the carrier by agreeing to bill an employer or other parties, in the event that any or all charges are not paid, the owner of the goods and/or beneficiary of all charges remains primarily liable for payment." See Exhibit "A." 16. Moreover, section three on the reverse side of the Bill of Lading states, in part, "It]he shipper, (individual or commercial) and consignor upon tender of the shipment to carrier, and the consignee, upon acceptance of delivery of shipment from cartier, shall be liable, jointly and severally, for all unpaid charges payable on account of a shipment in accordance with applicable tariffs including, but not limited to, sums advanced or disbursed by a carrier on account of such shipment." See id. 17. Additionally, courts that have considered the question of joint and several liability under a bill of lading providing for consignor/consignee liability have unanimously concluded that a shipper -4- and a third-party through whom the consignment was made are jointly and severally liable for all outstanding transportation charges. See United Van Lines, Inc. v. Zak, 861 F. Supp. 61, 63 (S.D. IlL 1994); United Van Lines, Inc. v. Hellman, 949 F. Supp. 126 (E.D.N.Y. 1996); United Van Lines v. Homburger, 932 F. Supp. 139 (W.D.N.C. 1996). 18. The preceding cases interpret 49 U.S.C. § 14706 et seq., which as stated earlier govems these proceedings and the contractual relationship between United and Defendants. See 49 U.S.C. § 14706(d)(3). 19. Accordingly, pursuant to the terms of the Bill of Lading and federal law, Defendants are jointly and severally liable for the sum of $5,800.99, plus interest, due and owning to United. 20. Notwithstanding repeated demands for payment of the $5,800.99, Defendants have refused to pay any part of the transportation charges and other related charges due to United. WHEREFORE, plaintiff, United Van Lines, LLC, prays that this Court will enter judgment in its favor and against defendants, Antonio Lopez and Michelle Lopez, for actual damages in the amount of $5,800.99, together with interest at the legal rate from the relative dates to the date of judgment, for the costs of this action, and for such other and further relief as the Court deems just and proper. COUNT II BREACH OF INTERSTATE TRANSPORTATION CONTRACT 21. United incorporates by reference as if set forth at length herein the allegations in paragraphs 1 through 20 above. 22. The transportation and other related charges accruing from the interstate transportation of Defendants' cargo is $5,800.99. See Exhibit "B." 23. The transportation services and other related services for the interstate carriage of the cargo were performed in accordance with the Bill of Lading and United's tariff provisions incorporated therein. 24. Defendants were the actual and beneficial owners or legal possessors, shippers, consignors and consignees of the cargo for which United provided the interstate transportation services pursuant to the Bill of Lading. In accordance with 49 U.S.C. §§ 13702 and 13706, United is obligated to collect, and Defendants are obligated to pay, the full applicable tariff charges due. 25. As reflected in the Bill of Lading, Defendants accepted the cargo upon delivery at the destination specified in the Bill of Lading. 26. United has performed all of the terms and condilions set forth in the Bill of Lading and there is due and owing the sum of $5,800.99 as unpaid tariff transportation charges and/or other related charges. 27. Despite timely and repeated demand, Defendants have breached the Bill of Lading by failing and/or refusing to pay United the outstanding transportation charges and other related charges. Defendants are liable to United in the sum of $5,800.99, pursuant to the terms of the Bill of Lading and the I.C.C. Termination Act of 1995, 49 U.S.C. §§ 13706 and 13707. WHEREFORE, plaintiff, United Van Lines, LLC, prays that this Court will enter judgment in its favor and against defendants, Antonio Lopez and Michelle Lopez, for actual damages in the amount of $5,800.99, together with interest at the legal rate from the relative dates to the date of judgment, for the costs of this action, and for such other and further relief as the Court deems just and proper. 28. COUNT III UNJUST ENRICHMENT United incorporates by reference as if set forth at length herein the allegations in paragraphs 1 through 27 above. 29. On or about July 10, 2001 through July 17, 2001, at the request of Defendants, United transported Defendants'property. 30. United rendered to Defendants work, labor, materials and services for which Defendants promised to pay the reasonable value thereof. 31. United conferred a benefit upon Defendants by providing them with the transportation and freight services as described above. 32. United, at the time it supplied Defendants with such services, had a reasonable expectation of being compensated therefore. -7- 33. The services were conferred upon Defendants at the express request and insistence of Defendants. If Defendants are allowed to retain the benefits conferred upon them by United, without compensating United therefore, Defendants will be unjustly enriched. 34. The reasonable value of all of the services performed by United for the benefit of Defendants was $5,800.99. 35. Notwithstanding repeated demands for payment of the $5,800.99, Defendants have refused to pay any part of the transportation charges and other related charges due to United. WHEREFORE, plaintiff, United Van Lines, LLC, prays that this Court will enter judgment in its favor and against defendants, Antonio Lopez and Michelle Lopez, for actual damages in the amount of $5,800.99, together with interest at the legal rate from the relative dates to the date of judgment, for the costs of this action, and for such other and further relief as the Court deems just and proper. 36. COUNT IV ACCOUNT STATED United incorporates by reference as if set forth at length herein the allegations in paragraphs 1 through 35 above. 37. At all relevant times, United maintained a book account on the invoices that memorialized its agreement to provide transportation and freight services to Defendants. Defendants' account is an accurate and running account of the balance due and owing to United. -8- 38. As of this date, United is owed the sum of $5,800.99, plus interest, on this account. 39. Although United has made repeated demands for payment to Defendants, Defendants have failed and/or refused to pay the amounts due on its account. WHEREFORE, plaintiff, United Van Lines, LLC, prays that this Court will enter judgment in its favor and against defendants, Antonio Lopez and Michelle Lopez, for actual damages in the amount of $5,800.99, together with interest at the legal rate from the relative dates to the date of judgment, for the costs of this action, and for such other and further relief as the Court deems just and proper. JOSHUA HORN, ESQUIRE DAVID T. GARNES, ESQUIRE FOX ROTHSCHILD LLP 2000 Market Street, l0th Floor Philadelphia, PA 19103 Telephone: (215) 299-2034 Telecopier: (215) 299-2150 Attorneys for Plaintiff United Van Lines, LLC Dated: August ~, 2003 -9- ATTORNEY VERIFICATION I, JOSHUA HORN, ESQUIRE, hereby verify that I am the attorney of record for plaintiff, United Van Lines, LLC; that I am authorized to take this verification on its behalf pursuant to Pa. R.C.P. 1024(c) because United Van Lines, LLC is outside of the jurisdiction of the Court and its verification cannot be obtained within the timeframe allowed for filing this pleading; and that based upon my review of the material documents in this case and my reasonable investigation, the facts contained in the foregoing complaint are true and correct to the best of my knowledge, information and beliefi I understand that false statements made herein are subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. JOSH A HORN, ESQUIRE Dated: August ~, 2003 -10- Exhibit A CONTRACT TERMS and CONDITIONS of UNIFORM HOUSEHOLD GOODS I~ILL of LADING SEC~ON 5 sh,pment s mfus~ oy consignee a~ destmat~,to sh pp~ a~d cone gn~ at post offce eddmsses shown on f~ he~t, or if Exhibit B ,. dF: :c.~ VAN LINES, LL.C I~2304 NETWORK F'I. ACE CHICAGO, IL. 606'73-1'223 WOELDWI]]E RELOCATION SERV LLC ATTN: ACCOUNTS PAYADL. E 232:1 N HULLEN STE A HETAIRIE, LA 70001 NQ M ICHEI_I_E LOPEZ FED. ID #43-1881477 United Van Lines, LLC One United Drive Fenton, MO 63026-1350 636-326-3100 0268 01124 1 01 08/01/01 ICARLISLE PA HETAIEIE LA LL85 ~' o 1106 9660 9660 ,riff No. Miles 710.28 FUEL SURCNARGE i ADDL TRAMS ORIO tbs. A! ~rCwt.$ TRANSPORTATION 8834.00 ~ 148.41 9660 LBS 2,20/CWT I AUDI_ TRAMS DEST 9660 LBS @ ,85/CWT 23 DISH PACKS ~ 30.45 23 CARTON 1 1/2 CU. FT. 8 6,45 16 CART0NS 3 CU, FT, ~ ~.30 8 CARTONS 4 1/2 CU FT. 8 11.20 10 WARDROBE CTN ~ 23,85 4 TWIN MATTRESS CTN @ 15.75 4 DOUBLE MATTRESS CTN 8 19,50 1~ CORE MIRROR CTN @ ~4.50 TOTAL CONTAINERS 23 DISH PACKS ~ 45,20 23 CARTON 1 I~2 CU, FT. Q ll,&5 16 CARTONS 3 CU. FT, ~ 18.10 8 CARTONS 4 I/2 CU FT. 10 WARDROBE CTN Q 13,25 12 CORR MIRROR CTN ~ 41.25 4 TWIN MATTRESS' CTN @ 12.85 4 DOUBLE"MATTRESS CTN @ 12.85 TOTAL PACKING 4 TWIN MATTRESS CTN Q 3,60 4 DOUBLE MATTRESS CTN 8 3.60 TOTAL UNPACKING I APPLIANCE DESERVICE 8 21,75/EA I APPLIANCE DESERVICE 8 13.70/EA SERVICES SUBJECT TO BTM LINE DISCOUNT L ~ EoS: 58,00 ~ BOTTOM LINE DISCOUNT ~ SERVICES EXCLUDED FROM DISCOUNTING SUBTOTAL: 700.35 148.35 148.80 89.60 238.50 63,00 78.00 294.00 1039,60 267 95 177:.~0 1'32/o0 . 495 O0 51,40 51.40 14.40 14.40 13458.53 7805.75 148.41 ~ * * CONTINUED NEXT PAGE 212,52 82.11 1760,60 2505.05 28.80 21,75 13.70 REMIT IF PAYMENT POSTMARKED BY REMIT IF PAYMENT POSTMARKED AFTER · UNYTEX~ VAN LINEo. LLC ~,~,~.04 NETWORK PL~SCE ~H1CAGO. IL 60673-J. g23 WORLDWIDE RELOCATION SERV ATTN: ACCOUNTS PAYABLE 2321 N HULLEN STE A METAIRIE, LA 70001 LLC FED. ID #43-1881477 Miles / Lbs. At NET TOTAL: PerCwt.$ REQUIRED ~OCUMENTS 1 ORIGINAL INVOICE ~ INVOICE COPIES 1 SIGNED BILL OF LAOING 1 SIGNED INVENTORY 1 WEIGHT TICKETS 1 PURCHASE ORD/LETTER OF AUTH 1 PURCHASE ORDER NUMBER 1 ADTL SERVICES FORM I ADDRESS FOR EXTRA STOP 5800,99 5800,99 5858,oo REMIT 08/31/0 '1 JF PAYMENT POSTMARKED BY ' " 08,"3 ~ .,"01 IF PAYMENT POSTMARKED AFTER 5800,99 CERTIFICATE OF SERVICE I, DAViD T. GARNES, ESQUIRE, hereby certify that on the ~ dt2l~ay of August 2003, a true and correct copy of the foregoing complaint of plaintiff, United Van Lines, LLC, against defendants, Antonio Lopez and Michelle Lopez, was served upon the following individual, via United States first class mail, postage prepaid, and addressed as follows: John H. Broujos, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Attorney for Defendants Antonio Lopez and Michelle Lopez UNITED VAN LINES, LLC ONE UNITED DRIVE FENTON, MO 63026-1350 Plaintiff V. ANTON10 AND MICHELLE LOPEZ 4716 LAKEWOOD DRIVE METAIRIE, LA 70002 Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. ANSWER AND NEW MATTER Defendants, Antonio and Michelle Lopez, husband and wife, by and through their attorneys Broujos & Gilroy, P.C., hereby answer the complaint against them and aver as follows: 1. Admitted, according to Defendants' knowledge and belief. 2. Admitted. 3. Admitted that pick up of household goods occurred in Cumberland County. By way of further reply and clarification, Defendants are citizens of the United States of America, residents of the state of Louisiana and residing at the address stated in Plaintiff's complaint. 4. Denied. Defendants assert that Paragraph 4's averments are so general and vague that Defendants are without knowledge or sufficient information to form a belief as to the truth of the averment and therefore deny "that the matters complained of herein and the liability of Defendants is predicated upon the interstate transportation of household goods by United, pursuant to a Uniform Household Goods Bill of Lading and Freight Bill (Bill of Lading), and United's duly published tariffs incorporated therein by reference." In addition, Defendants assert that this calls for a legal conclusion and therefore they are not required to admit or deny such statement. Defendants deny that Exhibit A is a true and accurate copy of the Bill of Lading, since the copy is unreadable in all parts. Clear copy is demanded. After reasonable investigation Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment. Proof is demanded. Defendants deny that such admission establishes any liability to Plaintiff. Defendants also deny that such is a complete copy of the Bill of Lading. 5. Denied. On or about July 10, 2001 Defendant Antonio Lopez did sign Plaintiff's Bill of Lading, not considered by Defendants to be a contract, and not conceding that the Bill of Lading established liability to Plaintiff based on the facts and law in this case. 6. Admitted. 7. Denied. On the contrary, documents have been submitted that contain the name "Worldwide Relocation Service LLC", including Plaintiff's Exhibit A, together with a prior similar payment arrangement among the same parties, indicating a contractual or business relationship. In addition, Plaintiff had an express or implied agreement with Worldwide for payment of charge by Defendants to Worldwide for the purpose of delivery of the payment to Plaintiff under contract or agency. 8. Denied. Defendants deny that they were they shippers, consignors and consignees or their household goods. 9. Defendants incorporate the answers to this incorporated reference in accordance with above averments. 10. Denied that Plaintiff provided transportation services to Defendants only pursuant to the Bill of Lading. On the contrary, Plaintiff provided transportation services to Defendants in accordance with all of the documents and written and verbal agreements involved in this case. Denied that such facts create any liability on the part of Defendants to Plaintiff. On the contrary, once Defendants paid Worldwide, Worldwide had a duty to pay to Plaintiff a portion of the payment on the basis of agency, contract, and duty. 11. Denied. On the contrary, Plaintiff remitted an invoice as a result of the failure of Worldwide to remit the charge, as predetermined, by agency, agreement, practice, and custom of both Worldwide and Plaintiff. 12. Denied. On the contrary, Defendants refused to pay Plaintiff for charges because Defendants had already paid Worldwide. Denied that Plaintiff was unaware that Defendant had prepaid for the shipping. On the contrary, Plaintiff did have knowledge. 13. Denied. On the contrary, Plaintiff was privy to the entire transaction among the consignor Worldwide, carrier United, and consignee Defendants. Denied that the relationship between Defendants and Worldwide had no effect on Defendants' relationship to Plaintiff. On the contrary, Plaintiff knew or should have known of the pre-payment by Defendants to Worldwide, and that the sums due to be collected by Plaintiff were due only from Worldwide. 14. Denied. On the contrary, all three parties Plaintiff, Defendants and Worldwide had previously entered into an identical arrangement during the transportation of Defendants' household effects from New Orleans to the Army War College in July of 2000, only a year previous to the move relative to this matter. The name Worldwide is written many times on the various shipping documents. Otherwise, Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment. 15. Admitted as to the language. Denied that under the facts of this matter Defendants are liable to Plaintiff. The provision is unconscionable, unlawful, and unconstitutional. 16. Denied that Defendants are liable in any way or theory after Defendants paid consignor Worldwide, since Plaintiff had knowledge of or had reason to believe that Worldwide, prior to shipping, collected the shipping charges for Plaintiff's service; Worldwide converted the funds to Worldwide's use; and Plaintiff knew of the bankruptcy of Worldwide. In addition, the charges for services of Plaintiff were not unpaid charges; they were paid charges, paid to Worldwide, a de facto or de jure agent for collection of charges for Plaintiff. In addition, the Bill of Lading language is unconscionable, unlawful, and unconstitutional. 17. Denied. Paragraph 17 states a legal conclusion and Defendants are not required to admit or deny. By way of further answer, it is denied that the cases c. ited are applicable to the facts of this matter. 18. Paragraph 18 states a legal conclusion and Defendants are not required to admit or deny. 19. Denied. On the contrary, Defendants are not liable for any sum. 20. Admitted that Defendants have refused to pay Plaintiff the sum of $5,800.99. Defendants paid Worldwide $7,218.93 on June 20, 2001, $5,800.99 of which was paid for the shipping services rendered by Plaintiff; which absolved Defendants of any further obligation of payment. 21. Defendants incorporate the answers to this incorporated reference in accordance with above averments. 22. Admitted that Plaintiff has billed to Defendants the sum of $5,800.99. 23. Admitted that transportation services were performed by Plaintiff. Denied that there are other related services. Denied that services were performed in accordance with the Bill of was collected by Worldwide from Defendants for Plaintiff. Worldwide failed to compensate Plaintiffs, not Defendants. 33. Denied that Defendants insisted. Defendants simply entered into an agreement for delivery of cargo after receiving the name of Plaintiff from Worldwide as a prospective hauler. It is denied that Defendants expressly requested or insisted upon services from United. It is denied that Defendants will be unjustly enriched since Defendants paid for the service. 34. Admitted that Defendants have already paid, with Plaintiff's knowledge and consent that payment would be made to Worldwide for Plaintiff. 35. Denied. Defendants did make payment to Plaintiff through the agent Worldwide for the principle Plaintiff. 36. Defendants incorporate the answers to this incorporated reference in accordance with above averments. 37. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment. 38. Denied. On the contrary, no sums are owed. 39. Admitted. Denied that any sums are owed. WHEREFORE Defendants ask the Court to dismiss the Complaint. NEW MATTER Defendants, by and through their attorneys, Broujos & Gilroy, P.C., in accordance with Pa. R.C.P. 1030, assert the following New Matter: 40. Taken together as a whole, reading the four comers of all documents, all parties knew the job was pre-paid. If Plaintiff failed to enter the words "prepaid" on the Bill of Lading, Plaintiff had a duty to do so. Plaintiff thereby committed acts which were intentional, fraudulent, and deceitful, unconscionable, or negligent. 41. To hold Defendants liable for a second payment to Plaintiff after paying Worldwide for the charge of Plaintiff for services is unconscionable. 42. The Bill of Lading contains terms impressed upon Defendants in the hurried process of movement and is an unconscionable document. To enforce it in the manner insisted by Plaintiff would result in an unconscionable and unlawful result against Defendants. 43. At the time of the signing of the Bill of Lading there was an absence of meaningful choice on the part of Defendants as to whether or not they could alter any terms of the Bill of Lading and still receive the shipping services they had already paid $7,218.93 for on June 20, 2001. 44. Plaintiff failed to explain prior to the signing of the Bill of Lading that, if Worldwide did not forward payment to Plaintiff as agreed upon, Defendants would be pursued to pay the bill twice, nor was the language contained in the Bill of Lading bolded, italicized or in any manner highlighted or otherwise pointed out to Defendants prior to DetEndants being forced to sign such in order to receive the shipping services they had already paid for in full. 45. Defendants were under duress from Plaintiff, in that if Defendants had not signed the Bill of Lading their household goods would not have been loaded and shipped from Carlisle, Pennsylvania back to their home in Louisiana. 46. Defendants were obligated to a specific timeline of vacating the premises occupied at the Army War College by a specific date and were forced to accept the unconscionable terms and consequences, albeit unknown to them at the time, of the Bill of Lading. 47. An absence of any meaningful choice whatsoever existed regarding the Defendants' choice as to their acceptance of all terms of the Bill of Lading and the consequences thereof. 48. Where a consignor defaults on payment of freight charges, equitable estoppel precludes the carrier Plaintiff from collecting charges from the innocent consignee Defendants. 49. No conflict arises between recognition of an estoppel defense and the anti-discriminatory purpose of rate enfomement sections of the Interstate Transportation Code raised by Plaintiff as grounds for this unconscionable complaint against the innocent: consignee Defendants, who have already paid $7,218.93 for the shipping service received and now paid thousands of additional attorney fees defending such complaint against them. 50. Plaintiff, by its past deeds of utilizing Worldwide as an agent for payment transmission between itself and Defendants, by accepting the Jnne 6, 2001 Binding Estimate Cost of Service between Worldwide and Defendants in its reference to such in its Bill of Lading, and by its other actions and inactions between May of 2001 and May of 2003, did lead Defendants to justifiably rely on the informal agreement that Defendants would owe no more funds for the shipping service received. 51. Defendants were induced and justifiably relied on the past actions of Plaintiff in the previous move in July of 2000 and by the letter of July 19, 2001, and in all other interactions between the parties between July of 2000 and May of 2003 that if payment was made to Worldwide that their household goods would be shipped and that no further money would be due. 52. In July of 2000 Defendants, did select the services of Worldwide Relocation Services, LLC to ship their household goods from New Orleans, Louisiana, to Carlisle, Pennsylvania and, among choices presented by Worldwide, United Van Lines was selected to be the carrier of the household goods. Defendants did pay Worldwide as the consignor for transportation services provided and Plaintiff, the carrier, was paid by Worldwide as agreed upon by all parties, as a mirror image of the present case. 53. Plaintiff has been contracting with Worldwide since at least July of 2000, by which both parties gained business in the form of additional shippers such as Defendants. 54. Plaintiff was agent of Worldwide, either de jure or de facto, in that Worldwide was involved in the process of selection by Defendants of Plaintiff as a cartier, having been associated with Plaintiff in prior moving contracts, with the mane of Worldwide occurring on most of the documents of Plaintiff. 55. Sometime during early May 2001 Defendants did again contact Worldwide to handle moving Defendants' household goods from Carlisle, Pennsylvania back to Metairie, Louisiana. 56. Presented with choices of carriers, Plaintiff once again was selected, since the previous move was without incident. 57. On May 25, 2001 Paulk's Moving and Storage, Inc., United Van Lines, 6131 River Road, New Orleans, Louisiana (Paulk United) did send a facsimile containing information regarding Defendants' move that Plaintiff could have obtained only from Worldwide. 58. Plaintiff's Exhibit A, the Bill of Lading, references a "FIRM PRICE BID" which in fact refers to the contract price of the "Binding Estimate Cost of Service" contract signed between Defendant Michelle Lopez and Worldwide Relocation Services LLC on June 6, 2001, attached hereto as Defendants' Exhibit A. 59. The Binding Estimate Cost of Service contract does state: "Payment is due prior to the day of loading in certified funds to Worldwide relocations...". This is equivalent to "pre-paid". See Defendants Exhibit A. 60. The signed Binding Estimate Cost of Service was mailed back shortly after June 6, 2001. 61. A letter dated June 19, 2001 was received from Paulk United giving Defendants their dates for packing (July 9, 2001), loading (July 10, 2001), and a range of dates for delivery (July 16-19, 2001). 62. On June 20, 2001 Defendants did send a cashier's check from Commerce Bank for the contract price of $7,218.93 to Worldwide Relocation Services, LLC. 63. Worldwide was paid the $5,800.99 it owes Plaintiff by Defendants on June 20, 2003. 64. United and Worldwide were in communication prior to May 25,2001 as evidenced by the facsimile from Paulk United. 65. Plaintiff had full knowledge of the Binding Estimate Cost of Service contract between the Defendants and Worldwide. 66. The identical method of shipment and payment was employed in the prior shipment of Defendant's household effects from Louisiana to the Army War College in July of 2000. 67. Based on past business relations and dealings and common business practices, Plaintiff had knowledge or had reason to know that Defendants paid Worldwide in full for the carrier services prior to them being rendered. 68. Plaintiffhad knowledge or should have had knowledge that Defendants were required to pay Worldwide in full prior to the loading of their household goods and therefore knew that the services rendered by them as the carrier were prepaid. 69. It is common household goods transportation practice between consignor, carrier, and consignee/shipper (such as Worldwide, Plaintiff, and Defendants in this matter) to carry out a shipment of household goods in a manner as follows: the consignee/shipper pays the consignor, the carrier picks up the consignee/shipper's goods and ships them to the predetermined destination, and the consignor pays the carrier. 70. Plaintiff knew or should have known that Defendants had paid or were paying Worldwide the entire sum of $7,218.93 for the transportation of the household effects of Defendants. 71. Plaintiff knew or had reason to know that the payment to be made and which was made by Defendants to Worldwide was the only payment to be made for the transportation of the household effects, once the payment was made. 72. No invoice or bill for services was sent from Plaintiff to Defendants until May 28, 2002 via UPS 2nd Day Air Letter from Ms. Nancy Bradford. 73. Worldwide Relocation Services, LLC filed for bankruptcy on March 15, 2002. 74. Plaintiff knew or should have known even prior to March 15, 2002 that Worldwide was in a precarious financial situation and that bankruptcy was one alternative to that financial situation. 75. Plaintiff, who knew or should have known that Defendants paid for the cost of shipping the household effects to Worldwide, should have so informed Defendants prior to March 15, 2002 as to the potential bankruptcy status of Worldwide. 76. The first debtor's meeting was held on May 2, 2002. 77. Plaintiff failed to give notice or to take any action to protect Defendants from the risk of double payment. 78. Plaintiff, upon learning of the bankruptcy of Worldwide, should have filed a claim for the amount of money, in the amount of the total $5,800.99, the amount of debt claimed due by Plaintiff by Defendants and Worldwide, but failed to do so. 79. Plaintiff, upon learning of the bankruptcy of Worldwide, should have notified Defendants immediately of the bankruptcy proceedings and of Plaintiffs intent to collect the $5,800.99 from Defendants in order to give notice to Defendants that they should file as a creditor against Worldwide for the $5,800.99. 80. The intent of the Congress at the time of passage of 49 USC {}13706 was not to impose joint and several liability on an innocent shipper who has paid for the services rendered as agreed to a consignor which then files bankruptcy and fails to pay the carrier. 81. As between the carrier and a consumer, under the circumstances of this case, it is the carder that should be the party bearing any loss as a result of bankruptcy of the consignor, not the innocent consumer. 82. It is not enough to place a reference to joint liability on a bill of lading; there should be imposed a duty to inform shippers not just of joint liability but of the risk of double billing and precautions to take, such as issuing payment in the name of both the consignor and the carrier. 83. If Plaintiff claims it was not privy to any agreement for payment to Plaintiff through the payment by Defendants to Worldwide and that Worldwide had no authorization to pay, the collection by Worldwide of Plaintiff's share of charges would have been a criminal act of conversion and theft, justifying Plaintiff in objecting to the discharge of Worldwide as a dishonest debtor. And Plaintiff would have obtained the $5,800.99. 84. Based upon all facts asserted in paragraphs 1-83 Defendants assert that the doctrines of laches, equitable estoppel, discharge in bankruptcy of the true debtor, and previous payment by Defendants all act as defenses to the complaint by Plaintiff against Defendants. DEFENDANTS' COUNTERCLAIM Defendants file this Counterclaim as follows: 85. Defendants incorporate herein averments set forth in new matter and in answer to complaint. 86. Defendants have been compelled by the filing of this action to expend substantial sums for legal fees, transportation to and from Louisiana, overnight accommodations, and related expenses in the amount of approximately $6,500, with additional costs as the case progresses. 87. The conduct of Plaintiff in commencing the action was arbitrary, vexatious and in bad faith, in that Plaintiff at the time of filing and since was aware or had reason to be aware that the law in the Third Circuit Court of Appeals is that when a consignor (Worldwide) defaults on payment of freight charges, equitable estoppel precludes carrier Plaintiff with knowledge of the payment from collecting charges from innocent consignee Defendants who have already paid consignor. 88. Defendants had paid to Worldwide for Plaintiff the claim of Plaintiff in the amount of $5,800.99. 89. Defendants have given notice to Plaintiff from the commencement of demands for payment and filing of claim before a District Justice, to filing of Complaint and Answer to the complaint, that Defendants are not liable to Plaintiff because Defendants paid Worldwide as agent for Plaintiffs and in pursuance of shipping arrangements and based on prior similar shipping arrangements. WHEREFORE, Defendants demand payment of all expenses, including legal expenses in accordance with 42 PaCSA 2503. Date: August 27, 2003 Respectfidly sub~mitted,-~ Jo~n }~. Broujos, Esquire #6268 BR(YcJJOS & GILROY, P.C. 4 North Hanover Street Carlisle, Pennsylvania 17013 717/243-4574; 717/766-1690 FAX# 717/243-8227 I verify that the statements made in this pleading are true and correct upon signer's personal knowledge or information and belief from Defendants. The reason that verification is not made by parties is that they are outside the jurisdiction, residing and working in Louisiana. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. ~_~Johnt. tJ ,Attomey ~ TO PLAINTIFF: NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ABOVE PLEADING WITHIN 20 DAYS FROM THE DATE OF SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. ~-- Jo iff BINDING ESTIMATE COST OF SERVICE .... :._~ __ - UNITED VAN LINES, LLC ONE UNITED DRIVE FENTON, MO 63026-1350 Plaintiff V. ANTONIO AND MICHELLE LOPEZ 4716 LAKEWOOD DRIVE METAIRIE, LA 70002 Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 0046-03 CERTIFICATE OF SERVICE I, John H. Broujos, Esquire, hereby certify that I have served a tree and correct copy of Answer, New Matter, and Counterclaim in the foregoing case on the following person and at the following address by United States, First Class Mail, on August 27, 2003 to: ATTORNEY Joshua Horn, Esquire FOX ROTHSCHILD LLP 2000 Market Street, 10th Floor Philadelphia, PA 19103 J~hn l~I. Broujos, Esquire No. 0268 Atto431ey for X or Y BROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, Pennsylvania 17013 (717) 243-4574 (717) 243-8227 FAX FOX ROTHSCHILD LLP BY: Joshua Horn, Esquire and David T. Games, Esquire IDENTIFICATION NOs. 71799 and 85995 2000 MARKET STREET, TENTH FLOOR PHILADELPHIA, PA 19103-3291 (215) 299-2000 UNITED VAN LiNES, LLC, Plaintiff, ANTONIO LOPEZ and MICHELLE LOPEZ, H/W, Dc~ndants. TO: DEFENDANTS YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATfER TO COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR JUDGMENT MAY BE ENTERED AGAINST YOU. BY: fI~AVID ~. Gdd[tNE~gT~SQUIRE ATTORNEYS FOR PLAINTIFF UNITED VAN LINES, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. ~ REPLY TO NEW MATTER AND REPLY WITH NEW MATTER OF PLAINTIFF UNITED VAN LINES, LLC 3?0 COUNTERCLAIM OF DEFENDANTS ANTONIO LOPEZ AND MICHELLE LOPEZ Plaintiff, United Van Lines, LLC ("United"), by and tlu'ough its attorneys, Fox Rothschild LLP, hereby files the following reply to new matter and reply with new matter to the counterclaim of · " ' as defendants, Antonio Lopez and Michelle Lopez (collectively, the Defendants ), follows: REPLY TO NEW MATTER 40. Denied. The averments contained in paragraph 40 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is nevertheless required, it is specifically denied that United knew that Defendants' move was prepaid and that United intentionally, fraudulently, deceitfully, unconscionably or negligently breached a duty to Defendants by not marking the Bill of Lading as prepaid. To the contrary, United had no indication that Defendants' move was prepaid, and United did not have a duty lo mark the Bill of Lading prepaid. Specifically, Defendants signed the Bill of Lading despite the fact that the Bill of Lading does not state that it is prepaid. Moreover, the back of the Bill of Lading expressly states that Defendants, as shippers, consignors and consignees, are directly responsible to United for payment for the services rendered to Defendants pursuant to the Bill of Lading. By way of further reply, the averments contained in paragraph 40 of Defendants' new matter refer to a writing, which should be reviewed for its content. To the extent that Defendants mischaracterize the content of that writing, United denies those mischaracterizations. 41. Denied. After reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 41 of Defendants' new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). By way of further reply, the averments contained in paragraph 41 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. Further, United has no knowledge of Defendants' alleged payment to Worldwide Relocation Services, LLC ("Worldwide"), and any such alleged payment does not remove Defendants' absolute obligation to remit payment directly to United under the terms of the Bill of Lading, United's Tariff and the Carmack Amendment. Moreover, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. -2- 42. Denied. The averments contained in paragraph 42 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. By way of further reply, the averments contained in paragraph 42 of Defendants' new matter refer to a writing, which should be reviewed for its content. To the extent that Defendants mischaracterize the content of that writing, United denies those mischaracterizations. 43. Denied. After reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 43 of Defendants' new matter. The same are therefore deemed denied pursuant to Pem~sylvania Rule of Civil Procedure 1029(c). By way of further reply, the averments contained in paragraph 43 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. 44. Denied. The averments contained in paragraph 44 of Defendants' new matter refer to a writing, which should be reviewed for its content. To the extent that Defendants mischaracterize the content of that writing, United denies those mischaracterizations. By way of further reply, United specifically denies that it had a duty to explain Defendants' obligations under the Bill of Lading. To the contrary, Defendants' obligations under the Bill of Lading are clearly stated, and United was under no duty to explain them to Defendants. Simply stated, the Bill of Lading that Defendants signed of their own free will and volition provides that Defendants are responsible to pay the Bill of Lading regardless if another party does not. Further, United has no knowledge of Defendants' alleged payment to Worldwide, and any such alleged payment does not remove Defendants' absolute obligation to remit payment to United pursuant to the terms of the Bill of Lading, United's Tariff and the Carmack Amendment. By way of further reply, after reasonable investigation, United is without knowledge or -3- information sufficient to form a belief as to the truth of the remaining averments contained in paragraph 44 of Defendants' new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). 45. Denied. The averments contained in paragraph 45 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is nevertheless required, United specifically denies that Defendants were under duress or forced to sign the Bill of Lading. To the contrary, Defendants did not sign the Bill of Lading under duress; in fact, Defendants signed the Bill of Lading of their own freewill and, therefore, accepted full responsibility to pay United the amount due and owing. Moreover, Defendants had the option of their cartier of choice and, by selecting United, they agreed to be bound by the terms and conditions of the Bill of Lading. 46. Denied. After reasonable investigation, United :is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 46 of Defendants' new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). By way of further reply, the averments contained in paragraph 46 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. Further, the averments contained in paragraph 46 of Defendants' new matter refer to a writing, which should be reviewed for its content. To the extent that Defendants mischaracterize the content of that writing, United denies those mischaracterizations. 47. Denied. After reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 47 of Defendants' new -4- matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). By way of further reply, the averments contained in paragraph 47 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. Further, United incorporates by reference as if set forth at length herein its reply to paragraph 45 above. 48. Denied. The averments contained in paragraph 48 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply may nevertheless be required, it is specifically denied that Worldwide was the consignor and/or that United cannot seek payment directly from Defendants. To the contrary, Defendants were the shippers, consignors and consignees under the Bill of Lading and, pursuant the terms of the Bill of Lading, United's Tariff and the Carmack Amendment, United can seek payment for its services directly from Defendants regardless of Defendants' relationship, if any, with Worldwide. 49. Denied. Atter reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 49 of Defendants' new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). By way of further reply, the averments contained in paragraph 49 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. Further, United has no knowledge of Defendants' alleged payment to Worldwide, and any such alleged payment does not remove Defendants' absolute obligation to remit payment directly to United under the Bill of Lading. Moreover, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. Additionally, Defendants, who were the shippers, consignors and consignees under the Bill of Lading, have not remitted payment to United for its services; therefore, Defendants remain liable to -5- United under the terms of the Bill of Lading, United's Tariff and the Carmack Amendment, regardless of Defendants' relationship, if any, with Worldwide. 50. Denied. The averments contained in paragraph 50 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is nevertheless required, it is specifically denied that United has utilized Worldwide as its agent, or that any actions by United resulted in Defendants justifiably believing that they would not owe money to United for the services that United provided to Defendants. To the contrary, Worldwide is not United's agent, and no actions by United resulted in Defendants justifiably believing that they would not owe money to United for its services. By way of further reply, the averments contained in paragraph 50 of Defendants' new matter refer to writings, which should be reviewed for their content. To the extent that Defendants mischaracterize the content of those writings, United denies those mischaracterizations. With respect to the remaining averments contained in paragraph 50 of Defendants' new matter, after reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of those averments. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). 51. Denied. The averments contained in paragraph 51 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is nevertheless required, it is specifically denied that United's actions created a reasonable impression on the part of Defendants that they did not have to pay United directly for its services. To the contrary, Defendants knew or should have known that United must be paid directly for the services that it provided to Defendants regardless if Defendants allegedly paid Worldwide, as the Bill of Lading -6- specifically states that Defendants were responsible to pay United directly for its services. By way of further reply, United has no knowledge of Defendants' alleged payment to Worldwide, and any such alleged payment does not remove Defendants' absolute obligation to remit payment directly to United under the terms of the Bill of Lading, United's Tariffand the Carmack Amendment. Additionally, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. The remaining averments contained in paragraph 51 of Defendants new matter refer to a writing, which should be reviewed for its content. To the extent that Defendants mischaracterize the content of that writing, United denies those mischaracterizations. 52. Denied. After reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 52 of Defendants' new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). By way of further reply, United has no knowledge of Defendants' alleged payment to Worldwide, and any such alleged payment does not remove Defendants' absolute obligation to remit payment directly to United under the terms of the Bill of Lading, United's Tariff and the Caruaack Amendment. Moreover, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. 53. Admitted in part. Denied in part. It is admitted only that United and Worldwide are parties to a transportation services agreement whereby United agreed to provide moving services to Worldwide's customers. It is specifically denied that the transportation services agreement precludes United from seeking payment for its services directly from Defendants. To the contrary, pursuant to the terms of the Bill of Lading, United's Tariff and the Carmack Amendment, Defendants, as shippers, -7- consignors and consignees, remain liable to United for payment for United's services. Moreover, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. More importantly, United had no knowledge of Defendants' alleged payment to Worldwide. 54. Denied. The averments contained in paragraph 54 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is nevertheless required, it is specifically denied that Worldwide served as an agent of United. To the contrary, Worldwide was not an agent of United. By way of further reply, United and Worldwide are parties to the transportation services agreement. However, the transportation services agreement does not preclude United from directly pursuing Defendants for pa.vment of United's services. To the contrary, pursuant to the terms of the Bill of Lading, United's Tariff and the Carmack Amendment, Defendants, as shippers, consignors and consignees, remain liable to United for payment for United's services. Moreover, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. With respect to the remaining averments contained in paragraph 54 of Defendants' new matter, after reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of those averments. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). 55. Denied. After reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 55 of Defendants' new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). -8- 56. Admitted in part. Denied in part. It is admitted only that Defendants utilized the services of United with respect to Defendants' move from Carlisle, Pennsylvania to Metairie, Louisiana. With respect to the remaining averments contained in paragraph 56 of Defendants' new matter, after reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of those averments. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). 57. Denied. The averments contained in paragraph 57 of Defendants' new matter refer to a writing, which should be reviewed for its content. To the extent that Defendants mischaracterize the content of that writing, United denies those mischaracterizations. With respect to the remaining averments contained in paragraph 57 of Defendants' new matter, after reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of those averments. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). 58. Denied. The averments contained in paragraph 58 of Defendants' new matter refer to writings, which should be reviewed for their content. To the extent that Defendants mischaracterize the content of those writings, United denies those mischaracterizations. With respect to the remaining averments contained in paragraph 58 of Defendants' new matter, after reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of those averments. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). 59. Denied. After reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 59 of Defendants' new -9- matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). By way of further reply, the averments contained in paragraph 59 of Defendants' new matter refer to a writing, which should be reviewed for its content. To the extent that Defendants mischaracterize the content of that writing, United denies those mischaracterizations. Further, the averments contained in paragraph 59 of Defendants' new matler constitute conclusions of law to which no responsive pleading is required. 60. Denied. After reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 60 of Defendants' new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). By way of further reply, the averments contained in paragraph 60 of Defendants' new matter refer to a writing, which should be reviewed for its content. To the extent that Defendants mischaracterize the content of that writing, United denies those mischaracterizations. 61. Denied. After reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 61 of Defendants' new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). By way of further reply, the averments contained in paragraph 61 of Defendants' new matter refer to a writing, which should be reviewed for its content. To the extent that Defendants mischaracterize the content of that writing, United denies those mischaracterizations. 62. Denied. After reasonable investigation, United is without knowledge or information sufficient to form a belief as to the troth of the averments contained in paragraph 62 of Defendants' new -10- matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). By way of further reply, United has no knowledge of Defendants' alleged payment to Worldwide, and any such alleged payment does not remove Defendants' absolute obligation to remit payment directly to United under the terms of the Bill of Lading, United's Tariff and the Carmack Amendment. Moreover, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. 63. Denied. After reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 63 of Defendants' new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). By way of further reply, United has no knowledge of Defendants' alleged payment to Worldwide, and any such alleged payment does not remove Defendants' absolute obligation to remit payment directly to United trader the terms of the Bill of Lading, United's Tariffand the Carmack Amendment. Moreover, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. 64. Denied. The averments contained in paragraph 64 of Defendants' new matter refer to a writing, which should be reviewed for its content. To the extent that Defendants mischaracterize the content of that writing, United denies those mischaracterizations. 65. Denied. The averments contained in paragraph 65 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. By way of further reply, after reasonable investigation, United is without knowledge or information sufficient to form a belief as to the -11- truth of the averments contained in paragraph 65 of Defendants' new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). 66. Denied. After reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 66 of Defendants' new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). 67. Denied. The averments contained in paragraph 67 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. By way of further reply, it is specifically denied that United knew or had reason to know that Defendants allegedly paid Worldwide for the services rendered by United. To the contrary, United did not know or have reason to know that Defendants allegedly paid Worldwide for United's services. Specifically, the Bill of Lading United issued to Defendants was not marked prepaid. Moreover, the Bill of Lading required direct payment from Defendants to United for United's services. Further, Defendants were the shippers, consignors and consignees to the Bill of Lading, and thus, remain liable to United under the terms of the Bill of Lading, United's Tariff and the Carmack Amendment regardless of whether Defendants allegedly paid Worldwide. 68. Denied. The averments contained in paragraph 68 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is nevertheless required, it is specifically denied that United's services to Defendants were prepaid. To the contrary, the Bill of Lading was not marked prepaid, and United has no knowledge of Defendants -12- alleged payment of the Bill of Lading. Moreover, the Bill of Lading requires direct payment from Defendants to United regardless if Defendants paid Worldwide. Therefore, payment of the Bill of Lading to a third-party would not satisfy the terms of the Bill of Lading. 69. Denied. The averments contained in paragraph 69 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. By way of further reply, defendants were the shippers, consignors and consignees to the Bill of Lading, and thus, under the terms of the Bill of Lading, United's Tariff and the Carmack Amendment remain liable to United regardless of whether Defendants allegedly paid Worldwide. Moreover, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. 70. Denied. The averments contained in paragraph 70 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is nevertheless required, it is specifically denied that United knew or had reason to know that Defendants allegedly paid Worldwide for the services rendered by United. To the contrary, United did not know or have reason to know that Defendants allegedly paid Worldwide for United's services. Specifically, the Bill of Lading United issued to Defendants was not marked prepaid. Moreover, the Bill of Lading required direct payment from Defendants to United for United's services. Therefore, Defendants remain liable to United under the terms of the Bill of Lading, United's Tariff and the Carmack Amendment regardless of whether Defendants allegedly paid Worldwide. Additionally, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. -13- 71. Denied. The averments contained in paragraph 71 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is nevertheless required, it is specifically denied that United knew or had reason to know that Defendants allegedly paid Worldwide for the services rendered by United or that any such alleged payment satisfied Defendants' obligations under the Bill of Lading. To the contrary, United did not know or have reason to know that Defendants allegedly paid Worldwide for United's services. Moreover, the Bill of Lading United issued to Defendants was not marked prepaid. Further, the Bill of Lading required direct payment from Defendants to United for United's services regardless if Defendants paid Worldwide. Therefore, Defendants remain liable to United under the terms of the Bill of Lading, United's Tariff and the Carrnack Amendment regardless of whether Defendants allegedly paid Worldwide. Additionally, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. With respect to the remaining averments contained in paragraph 71 of Defendants' new matter, after reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of those averments. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). 72. Denied. It is specifically denied that United did not send a bill or invoice for its services to Defendants until May 28, 2002. To the contrary, United's first invoice for its services was sent to Defendants on August 1, 2001. By way of further reply, after reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 72 of Defendants' new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). -14- 73. Admitted upon information and belief. By way of further reply, United has no relationship with Worldwide and had no knowledge of its financial condition or that it was going to file bankruptcy. In fact, United did not learn of Worldwide's ba ~nkruptcy until it contacted Worldwide with respect to Defendants. 74. Denied. The averments contained in paragraph 74 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. By way of further reply, United's only relationship with Worldwide is the transportation services agreement, and thus, United had no knowledge of Worldwide's financial condition or that it was going to file bankruptcy. In fact, United did not learn of Worldwide's bankruptcy until it contacted Worldwide with respect to Defendants. 75. Denied. The averments contained in paragraph 75 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. By way of further reply, United's only relationship with Worldwide is the transportation services agreement, and thus, United had no knowledge of Worldwide's financial condition or that it was going to file bankruptcy. In fact, United did not learn of Worldwide's bankruptcy until it contacted Worldwide with respect to Defendants. Moreover, United had no knowledge of Defendants' alleged payment to Worldwide, and any such alleged payment does not remove Defendants' absolute obligation to remit payment directly to United under the terms of the Bill of Lading, United's Tariff and the Carmack Amendment. Further, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. 76. Denied. After reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 76 of Defendants' new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). By way of further reply, United has no relationship with Worldwide and had no knowledge of its financial condition or that it was going to file bankruptcy. In fact, United did not learn of Worldwide's bankruptcy until it contacted Worldwide with respect to Defendants. 77. Denied. The averments contained in paragraph 77 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is nevertheless required, United specifically denies that it had any duty to notify or warn Defendants of the risk of double payment. To the contrary, United owes no such duty to Defendants. Moreover, United had no knowledge regarding whether Defendants allegedly paid Worldwide, Worldwide's financial condition or Worldwide's intent to seek protection under the United States Bankruptcy Code. By way of further reply, in accordance with the terms of the Bill of Lading, United's Tariff and the Carmack Amendment, Defendants have an absolute obligation to pay United for the transportation of their property regardless if Defendants allegedly paid Worldwide. Additionally, Worldwide has no contractual obligation to forward Defendants' payment onto United. 78. Denied. The averments contained in paragraph 78 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is nevertheless required, United specifically denies that it had an obligation to file a claim in Wofldwide's bankruptcy proceedings in order to recover the money that Defendants owe United. To the contrary, United was under no duty to file a claim in Worldwide's bankruptcy proceedings, and Defendants remain liable to United for the outstanding balance on their accotmt, as they specifically agreed to in the Bill of Lading with United. -16- 79. Denied. The averments contained in paragraph 79 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is nevertheless required, United specifically denies that it was under a duty to notify Defendants that Worldwide filed for bankruptcy protection. To the contrary, United had no duty to notify Defendants of Worldwide's bankruptcy filing. By way of further reply, United had no knowledge regarding whether Defendants allegedly paid Worldwide, Worldwide's financial condition or Worldwide's intent to seek protection under the United States bankruptcy code. In fact, United did not learn of Worldwide's bankruptcy until it contacted Worldwide with respect to Defendants. Moreover, in accordance with the terms of the Bill of Lading, United's Tariff and the Carmack Amendment, Defendants have an absolute obligation to pay United for the transportation of their property regardless of any alleged payment to Worldwide. 80. Denied. The averments contained in paragraph 80 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. By way of further reply, United has no knowledge of Defendants' alleged payment to Worldwide, and any such alleged payment does not remove Defendants' absolute obligation to remit payment directly to United under the terms of the Bill of Lading. Moreover, Defendants were the shippers, consignors and consignees to the Bill of Lading, and thus, remain liable to United under the terms of the Bill of Lading, United's Tariff and the Carmack Amendment regardless of whether Defendants allegedly paid Worldwide. Further, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. -17- 81. Denied. The averments contained in paragraph 81 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. By way of further reply, Defendants were the shippers, consignors and consignees to the Bill of Lading, and have joint and several liability under the Bill of Lading as specifically authorized by the Carmack Amendment. Therefore, Defendants remain liable to United under the Bill of Lading regardless of whether Defendants allegedly paid Worldwide. 82. Denied. The averments contained in paragraph 82 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. By way of further reply, United has no knowledge of Defendants' alleged payment to Worldwide. Moreover, Defendants were the shippers, consignors and consignees to the Bill of Lading, and have joint and several liability under the Bill of Lading as specifically authorized by the Carmack Amendment. Therefore, Defendants remain liable to United under the Bill of Lading regardless of whether Defendants allegedly paid Worldwide. Further, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. 83. Denied. The averments contained in paragraph 83 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. By way of further reply, after reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 83 of Defendants'~ new matter. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). By way of further reply, United has no knowledge of Defendants' alleged payment to Worldwide, and any such alleged payment does not remove Defendants' absolute obligation to remit payment directly to United under the terms of -18- the Bill of Lading, United's Tariffand the Carmack Amendment. Further, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. 84. Denied. The averments contained in paragraph 84 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is nevertheless required, United specifically denies that its claims are barred by the doctrines of laches, equitable estoppel, discharge in bankruptcy and previous payment. To the contrary, these doctrines do not bar United's claims against Defendants. Further, Defendar~ts remain liable for the entire outstanding balance on their account pursuant to the terms of the Bill of Lading, United's Tariff and the Carmack Amendment. WHEREFORE, plaintiff, United Van Lines, LLC, prays that this Court will enter judgment in its favor and against defendants, Antonio Lopez and Michelle Lopez, for actual damages in the amount of $5,800.99, together with interest at the legal rate from the relative dates to the date of judgment, for the costs of this action, and for such other and further relief as the Court deems just and proper. REPLY TO COUNTERCLAIM Pursuant to Pennsylvania Rule of Civil Procedure 1019, United files the following reply to the counterclaim of Defendants, as follows: 85. United incorporates by reference as if set forth at length herein its replies to paragraphs 1 through 84 above. -19- 86. Denied. The averments contained in paragraph 86 of Defendants' counterclaim constitute conclusions of law to which no responsive pleading is required. By way of further reply, after reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 86 of Defendants' counterclaim. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). 87. Denied. The averments contained in paragraph 87 of Defendants' counterclaim constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is nevertheless required, it is specifically denied that United knew or had reason to know that Defendants allegedly paid Worldwide for the services rendered by United. To the contrary, United did not know or have reas°n to know that Defendants allegedly paid Worldwide for United,s services. Specifically, the Bill of Lading that United issued to Defendants was not marked prepaid. Moreover, the Bill of Lading required direct payment from Defendants to United for United's services. Further, Defendants were the shippers, consignors and consignees to the Bill of Lading, and thus, remain liable to United under the terms of the Bill of Lading, United's Tariffand the Carmack Amendment regardless of whether Defendants allegedly paid Worldwide. 88. Denied. After reasonable investigation, United is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 88 of Defendants' counterclaim. The same are therefore deemed denied pursuant to Pennsylvania Rule of Civil Procedure 1029(c). By way of further reply, United has no knowledge of Defendants' alleged payment to Worldwide. Moreover, Defendants were the shippers, consignors and consignees to the Bill of Lading, and thus, remain liable to United under the terms of the Bill of Lading, United's Tariff and the Carmack -20- Amendment regardless of whether Defendants allegedly paid Worldwide. Further, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. 89. Denied. The averments contained in paragraph 89 of Defendants' counterclaim constitute conclusions of law to which no responsive pleading is required. By way of further reply, it is specifically denied that Worldwide is an agent of United. To the contrary, Worldwide is not and has not been an agent of Worldwide. Moreover, United had no knowledge of whether Defendants allegedly paid Worldwide for United's services, and any such alleged payment does not remove Defendants' absolute obligation to pay United for the transportation of their pr operty under the terms of the Bill of Lading, United's Tariffand the Carmack Amendment. Ftmher, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. WHEREFORE, plaintiff, United Van Lines, LLC, prays that this Court will enter judgment in its favor and against defendants, Antonio Lopez and Michelle Lopez, for actual damages in the amount of $5,800.99, together with interest at the legal rate from the relative dates to the date of judgment, for the costs of this action, and for such other and further relief as the Court deems just and proper. NEW MATTER By way of further answer and affirmative defense, United sets forth the following new matter to Defendants' counterclaim pursuant to Pennsylvania Rule of Civil Procedure 1030: 90. Defendants' counterclaim fails to state a claim upon which relief can be granted. -21- 91. untimely. Defendants' claim for attorney's fees and costs pursuant to 42 Pa. C.S.A. § 2503 is 92. Defendants' counterclaim is barred by the express terms of the agreement that governs the relationship between United and Defendants. 93. Defendants' counterclaim is barred, in whole or in part, by the actions or inactions of Defendants. 94. Defendants' counterclaim is barred, in whole or in part, by the actions or inactions of Worldwide and/or entities other than United over whom United has no control or duty to control. 95. No act or omission of United, or anyone or anything under the control of United, caused damages to Defendants. 96. United acted lawfully, reasonably and prudently at all times material to the averments contained in Defendants' counterclaim. 97. Defendants' counterclaim is barred, in whole or in part, by virtue of United's good faith and fair dealing. 98. The Bill of Lading was not marked prepaid. -22- 99. services. United had no knowledge that Defendants allegedly paid Worldwide for United's 100. Defendants remain liable to United under the Bill of Lading regardless of whether Defendants paid Worldwide. 101. Defendants were the shippers, consignors and consignees under the Bill of Lading and, therefore, are liable to United for the services that it rendered to Defendants. 102. Defendants' liability under the Bill of Lading is joint and several. 103. United reserves the right to supplement this new matter upon the discovery of new facts and/or evidence in these proceedings. -23- WHEREFORE, plaintiff, United Van Lines, LLC, prays that this Court will enter judgment in its favor and against defendants, Antonio Lopez and Michelle Lopez, for actual damages in the amount of $5,800.99, together with interest at the legal rate from the relative dates to the date of judgment, for the costs of this action, and for such other and further relief as the Court deems just and proper. DAVID T. GARNES, ESQUIRE FOX ROTHSCHILD LLP 2000 Market Street, l0th Floor Philadelphia, PA 19103 Telephone: (215) 299-2034 Telecopier: (215) 299-2150 Attorneys for Plaintiff United Van Lines, LLC Dated: September 30, 2003 -24- VERIFICATION I, lAN-ICE COLEMAN, hereby certify that I am a Collections Specialist for plaintiff, United Van Lines, LLC; that I am authorized to take this verification on its behalf; that I have reviewed the foregoing reply to new matter and reply with new matter of plaintiff, United Van Lines, LLC, to counterclaim of d~fendants, Antonio Lopez and Michelle Lopez; and that the facts Contained therein are true and correct to the best of my information and belief. I under~tand that the statementS made herein are subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification to authorities. Dated: September 30, 2003 CERTIFICATE OF SERVICE I, DAViD T. GARNES, ESQUIRE, hereby certify that on the 30th day of September 2003, a tree and correct copy of the reply to new matter and reply with new matter of plaintiff, United Van Lines, LLC, to counterclaim of defendants, Antonio Lopez and Michelle Lopez, was served upon the following individual, via United States first class mail, postage prepaid, and addressed as follows: John H. Broujos, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Attorney for Defendants Antonio Lopez and Michelle Lopez DAViD T. GARNES, ESQUIRE UNITED VAN LINES, LLC, Plaintiff ANTONIO LOPEZ and MICHELE LOPEZ, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL DIVISION - LAW : : NO. 2003 - 3442 : DEFENDANTS' COUNTER-REPLY TO PLAINTIFF'S REPLY TO COUNTERCLAIM CONTAINING NEW MATTER Defendants, Antonio and Michelle Lopez, husband and wife, by and through their attorneys, Broujos & Gilroy, P.C., hereby answer Plaintiff's Reply with New Matter of Plaintiff United Van Lines, LLC to Counterclaim of Defendants as follows: 90. Denied. The averment constitutes a conclusion of law to which no responsive pleading is required. 91. Denied. The averment constitutes a conclusion of law to which no responsive pleading is required. 92. Denied. The averment submitted by Plaintiff in Paragraph 92 is substantially identical to that averred in Paragraph 10 of PlaintitTs Complaint. Defendants therefore incorporate by reference their answer submitted in Paragraph 10 of Defendants' Answer and New Matter as their additional response to this Paragraph 92, as with other paragraphs herein. 93. Denied. The averment constitutes a conclusion of law to which no responsive pleading is required. Defendants assert that averments of Paragraph 93 are so general and vague that Defendants are without knowledge or sufficient information to tbrm a belief as to the truth of the averment and therefore deny. Defendants assert that their actions and inactions regarding this matter have from the inception been to defend themselves, at considerable expense, against wrongful litigation launched by a large corporation attempting to force Defendants to pay twice for shipping charges it was unable to collect due to its own customary business practice, a practice which Plaintiff knew or had reason to know carded a risk of loss to Defendants; and which presented a risk that could have been avoided if Plaintiff had required either direct payment or presentation of a check by Defendants to Worldwide with dual payees Plaintiff and Worldwide. This is so, particularly in light of the similar hauling incident one year prior. Based on its assumption of statutory law, Plaintiff knew or had reasont to know that if Plaintiff was not paid by Worldwide, Plaintiff would bring an action under which Plaintiff could recover on said assumption that Defendants had a dual obligation to two large corporate companies. This assumption protected Plaintiffand exposed Defendants to liabi][ity. Plaintiff disregarded not only the potential but probable risk of loss by Defendants by negligently failing to give notice of the risk to Defendants, which exposed Defendants to this risk and cost. Defendants aver that any statutory provision imposing dual liability to consignor and can:ier is unconstitutional. By way of further answer, Defendants hereby incorporate by reference Paragraphs 11-89 of their Answer with New Matter. 94. Denied. The averment constitutes a conclusion of law to which no responsive pleading is required. Defendants assert that Paragraph 93's averments are so general and vague that Defendants are without knowledge or sufficient information to :Form a belief as to the truth of the averment and therefore deny such. 95. Denied. So long as consignor had right (direct or implied or by default of carrier) to collect full fee for consignor and carrier, and so long as carrier was aware of that right, duty is on the carrier to include on bill of lading notice to consumer of the right and of the risk. United unilaterally has pursued wrongful litigation based on its assumption of an "absolute right" to collect shipping charges from Defendants regardless of its own negligence in failing to collect such charges or to protect itself from loss from the party it had agreed to collect such sums, such party being Worldwide. Pursuing Defendants with litigation in a state over 1,000 miles away from the residence of Defendants has caused considerable expenses in the form of attorney fees, travel, phone bills and other factors. Even if Defendants successfully defend against the wrongful litigation, unless the counterclaim of Defendants is granted awarding compensation of their costs, Defendants will have suffered considerable damages. 96. Denied. By way of further reply, Defendants hereby incorporate by reference their averments made in Defendants' New Matter, Paragraphs 40 through 83. Such paragraphs do aver facts that establish that Plaintiff, having a duty to do so, did not act lawfully, reasonably, and prudently at all times material to the averments contained in Defendants' counterclaim. 97. Denied. By way of further reply, Defendants hereby incorporate by reference their averments made in Defendants' New Matter, Paragraphs 40 ttuough 83. Such paragraphs do aver facts that establish that Plaintiff, having a duty to do so, did not act lawfully, reasonably, and prudently at all times material to the averments contained in Defendants' countemlaim. 98. Denied. On the contrary, the Bill of Lading was in fact prepaid and marked with a reference to a "Firm Price Bid" which referred to the contract between Worldwide and Defendants that verified that the Bill of Lading was prepaid. In addition, Paulk's Moving & Storage, Inc., an apparent subsidiary of Plaintiff as a principle party to the movement, in a letter of June 19, 2001 scheduled and managed the move, with no request for payment, a direct and implied understanding that the move was prepaid. Bill of lading form is a convention or required by federal or state law or regulation, which form failed to give notice. As between innocent Defendants without prior knowledge and consignor and carrier 'who both had knowledge of law and failed to inform Defendants of dual liability, innocent Defendants should prevail. See Exhibit A to this Defendant's Counter-Reply to Plaintiff's New Matter. 99. Denied. The averment submitted by Plaintiff in Paragraph 99 is substantially identical to those averred in Paragraphs 12, 13 and 14 of PlaintifI~s Complaint. Defendants therefore incorporate by reference their answers submitted in Paragraphs 12, 13 and 14 of Defendants' Answer and New Matter as their additional response to this Part, graph 99. 100. Denied. Duty of government which required notice of Defendants' obligation to pay both consignor and carrier carries with it the duty of carrier to include notice of risk of dual payment. Dual payment obligation of consumer to consignor and carrier is intended only to inform consumer that consumer had the right to pay either party, not an obligation to pay both. The averment submitted by Plaintiff in Paragraph 100 is substantially identical to those averred in Paragraphs 15, 16, 17, 18, 19, 24, 26, and 27 of Plaintiff's Complaint. Defendants therefore incorporate by reference their answer submitted in Paragraphs 15, 16, 17, 18, 19, 24, 26, and 27 of Defendants' Answer and New Matter as their additional response to this Paragraph 100. 101. Denied. The averment submitted by Plaintiff in Paragraph 101 is substantially identical to that averred in Paragraph 8 of Plaintiff's Complaint. Defendants therefore incorporate by reference their answer submitted in Paragraph 8 of Defendants' Answer and New Matter as their additional response to this Paragraph 101. 102. Denied. The averment submitted by Plaintiff in Paragraph 102 is substantially identical to those averred in Paragraphs 16, 17, 18, and 19 of PlaintiWs Complaint. Defendants therefore incorporate by reference their answer submitted in Paragraphs 16, 17, 18, and 19 of Defendants' Answer and New Matter as their additional response to this Paragraph 102. 103. Denied. No responsive pleading is required. WHEREFORE Defendants ask the Court to dismiss the Complaint and award Defendants judgment and damages pursuant to Defendants' Counterclaim. ouj'os, Esquire ~h~268 d GiLR6-~'~ -P.~.-~ 4 NOrth H~mover Street Carlisle, Pennsylvania 17013 717/243-4574; FAX 717/243-8227 Date: October 20, 2003 6131 River Road New Orleans, LA 70123 504-738-3520 800-245-2610 504-737-5930 Fax Locations also in Alabama and Florida Sanitized and Climate Contreiled Storage Office & Industrial Moves Orug-~eeWorkplace June 19, 2001 Ms. Michelle Lopez 285 Fairview Drive Carlisle, PA 17013 Dear Ms. Lopez: This. is to confirm the dates of your household goods move from Carlisle, PA to Metairie, LA. We have your move :scheduled for: PACK: 7/9/I)1 LOAD: 7/10/01 DELIVER: 7/1(3 - 7/19/01 As soon as you have a destination phone number, please give us a call so your driver can give you the standard 24 hours notice prior to delivery. As we will be calling you with times for your scheduled packing, loading and delivering, it is advised that you do not have your phone service disconnected until after your household goods are loaded onto the van. In addition, I advise you to bring a telephone with your personal effects in case there are questions on delivery day. If you have any questions or if anything is not to your complete satisfaction, please feel free to call me at 800-245-2610 extension 123. At your service, PAULK'S MOVING & STORAGE, INC. Meredith Veenstra Relocation Coordinator Defendants' Counter-Reply Exhibit A UNITED VAN LINES, LLC, Plaintiff V. ANTONIO LOPEZ and MICHELE LOPEZ, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA .. : CIVIL DIVISION - LAW : : NO. 2003 - 3442 : CERTIFICATE OF SERVICE I, John H. Broujos, Esquire, hereby certify that I have served a true and correct copy of the foregoing Defendants' Counter-Reply to Plaintiff's Reply to Counterclaim Containing New Matter on the following person and at the following address by United States, First Class Mail, on October 20, 2003 to: David T. Games, Esquire Fox, Rothschild, LLP 2000 Market Street, 10th Floor Philadelphia, PA 17103-3291 October 20, 2003 BROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, Pennsylvania 17013 (717) 243-4574 (717) 243-8227 FAX FOX ROTHSCHILD LLP BY: Joshua Horn, Esquire and David T. Games, EsquJ. re IDENTIFICATION NOs. 71799 and 85998 2000 MARKET STREET, TENTH FLOOR PHILADELPHIA, PA 19103-3291 (215) 299-2000 UNITED VAN LINES, LLC, Plaintiff, ANTONIO LOPEZ and MICHELLE LOPEZ, H/W, Defendants. ATTORNEYS FOR PLAINTIFF UNITED VAN LINES, LLC CO'URT OF COMMON PLEAS CUSXrIBERLAND COUNTY NO 03-3442 MOTION FOR SUMMARY JUDGJMENT OF PLAINTIFF UNITED VAN LINES~ LLC Plaintiff, United Van Lines, LLC ("United"), by and through its attorneys, Fox Rothschild LLP, hereby moves this Court to enter judgment in its favor on all of United's claims against defendants, Antonio Lopez ("Mr. Lopez') and Michelle Lopez ("Ms. Lopez') (collectively, the "Defendants"), and on Defendants' counterclaim against United, pursuant to Pennsylvania Rule of Civil Procedure 1035.1 et seq. In support thereof, United avers as follows: Introduction 1. On behalf of Defendants, Mr. Lopez executed a Uniform Household Goods Bill of Lading ("Bill of Lading') with United. The Bill of Lading provided for United to move Defendants' goods from Carlisle, Pennsylvania to Metairie, Louisiana. 2. United moved Defendants' goods in accordance with the Bill of Lading and invoiced Defendants in the amount of $5,800.99. United based its invoice upon United's published tariffs, which were incorporated by reference into the Bill of Lading. 3. By accepting United's services, Defendants must pay United's moving charges. Indeed, Defendants have admitted that they accepted United's services, but have failed to pay United for those services in breach of the Bill of Lading. 4. As a result, United was forced to commence these proceedings. In light of the fact that there are no genuine issues of material fact, United is entitled to summary judgment on all of its claims against Defendants. 5. United is also entitled to summary judgment on Defendants' counterclaim because, as a matter of law, Defendants' request cannot be granted by this Court until, if ever, the favorable conclusion of these proceedings. Accordingly, Defendants' countemlaim for attorney's fees is untimely. Procedural Background 6. On August 7, 2003, United filed a complaint against Defendants. See United's complaint, a true and correct copy of which is attached hereto as Exhibit "A." In the complaint, United asserted claims against Defendants for joint and several liability under the Bill of Lading, breach of an interstate transportation contract, unjust enrichment and account stated. See id~. -2- 7. On August 27, 2003, Defendants filed an answer with new matter and counterclaim to United's complaint. See Defendants' answer with new matter and countemlaim, a true and correct copy of which is attached hereto as Exhibit "B." 8. United, on October 1, 2003, filed a reply to Defendants' new matter and a reply with new matter to Defendants' counterclaim. See United's reply to new matter and reply with new matter to Defendants' counterclaim. 9. On October 20, 2003, Defendants filed a counter-reply to United's reply to countemlaim with new matter. See Defendants' counter-reply lo United's reply with new matter to counterclaim. The pleadings in these proceedings are now closed. Factual Back~round 10. United is an interstate motor carrier that has been granted authority to conduct interstate transportation of household goods and personal property by the Surface Transportation Board and the Federal Highway Administration of the United States Department of Transportation. See Affidavit of William J. Eyermann, III ("Eyermann Affidavit") at ~[ 7, a true and correct copy of which is attached hereto as Exhibit "C." 11. On or about July 10, 2001, Defendants entered into a Bill of Lading with United for the interstate shipment of Defendants' goods from 285 Fairview Drive, Carlisle, Pennsylvania to 4716 Lakewood Drive, Metairie, Louisiana. See Bill of Lading, a true and correct copy of which is attached hereto as Exhibit "D." 12. Defendants are listed as the shippers and consignees of their goods under the Bill of Lading. See id. In addition to being specifically listed as shippers and consignees under the Bill of Lading, Defendants are also the consignors of their goods because Defendants provided the goods that they transported to themselves. See Louisville & N.R. Co. v. Central Iron & Coat, -3- 265 U.S. 59, 67 (1924) (consignor is one on whose behalf a shipment is made); see also Banos v. Eckerd Corp., 997 F. Supp. 756, 762 (E.D. La. 1998) (citing Black's Law Dictionary definition of a consignor). 13. On or about July 10, 2001, United received Defimdants' goods from Defendants in Carlisle, Pennsylvania. See id. 14. The facing side of the Bill of Lading states: "[ill credit is extended by the carrier by agreeing to bill an employer or other party, and in the event that any or all of the charges are not paid, the owner of the goods and/or beneficiary of the services acknowledges he remains primarily liable for payment." See Exhibit "D" at section 2 (emphasis added). 15. Further, section three on the reverse side of the Bill of Lading states: [t]he shipper, (individual or commercial) and consignor upon tender of the shipment to carrier, and the consignee, upon acceptance of delivery of shipment from carrier, shall be liable, jointly and severally, for all unpaid charges payable on account of a shipment in accordance with applicable tariffs including, but not limited to, sums advanced or disbursed by a carrier on account of such shipment." See id. at section 3. ~ 16. On July 17, 2001, in accordance with the Bill of Lading, United delivered Defendants' goods to Defendants in Metairie, Louisiana. See Defendants' Answers to United's First Request for Admissions at admission number 5, a true and correct copy of which is attached hereto as Exhibit "F." 17. On or about August 1, 2001, United forwarded an invoice in the amount of $5,800.99 to Defendants for the moving services that United provided to Defendants. See ~ Attached to Gail Roller's affidavit (Exhibit "E") as Exhibit "2" is a blank bill of lading form that contains language that is identical to the Bill of Lading that Defendants signed. See Affidavit of Gail Roller at Exhibit , a true and correct copy of whmh is attached hereto as Exhibit "E", and is incorporated herein by reference. -4- Affidavit of Dennis Fickinger at ~ 8, a true and correct copy of which is attached hereto as Exhibit "G.' 2 18. United based the August 1 invoice on United's Tariffs - STB HGB 400-M ("Tariff 400-M') and STB HGB 104-F ("Tariff 104-F') - which are published with the Household Goods Carriers Bureau pursuant to 49 U.S.C. § 137,02 and incorporated by reference into the Bill of Lading. See id. at ¶ 9. 19. To date, Defendants have not paid United for its services. See Exhibit "B" at ¶¶ 20 and 32; see also Exhibit "G" at ¶ 10. United is entitled to summary judgment against Defendants on United's claim for ioint and severally liability under the Bill of Ladin,, 20. United is entitled to summary judgment against Defendants on United's claim for joint and several liability under the Bill of Lading. Under Pennsylvania law, it is well-settled that promises made by two or more persons are presumed to be joint and several unless there is an apparent intention to the contrary. See Meinhart v. Heaster, 424 Pa. Super. 433,437, 622 A.2d 1380, 1382 (1993)(citing Yadusk~, 301 Pa. 99~ 151 A. 785 (1930)). 21. Here, there is no genuine issue of material fact that Defendants are jointly and severally liable under the Bill of Lading. As a result, United is entitled to summary judgment on this claim. 22. Specifically, Defendants have admitted that they entered into the Bill of Lading. See Exhibit "F" at admission numbers 1 and 2. Moreover, the Bill of Lading expressly lists Ms. Lopez as both the shipper and the consignee. See Exhibit "D", fi~cing side. Further, Defendants 2 Although United initially sent an invoice to Defendants for $5,800.99, United subsequently discovered that the full amount of charges for United's services was $5,841.98. Based upon the filed rate doctrine, United is entitled to, and in fact must collect, the full amount of charges for Umted 3 serwces. See Maislin Industries, Inc. v. Primarv Steel, Inc., 497 U.S. 116, 127 (1990) (misquotation of rates not an excuse for paying less than filed rate). Accordingly, Defendants are liable to United for the full filed rate of $5,841.98. admit that Mr. Lopez signed the Bill of Lading. See Exhibit "F" at admission number 1. Mr. Lopez's signature appears twice on the Bill of Lading, once in a section where it is above the word, "shipper" and second in a section entitled, "Delivery Acknowledgement." See Exhibit "D." Thus, based upon the terms of the Bill of Lading and the location of Mr. Lopez's signatures, it is clear that Defendants were both the shippers and consignees of their goods and received their goods after transport. See id_. 23. Moreover, Defendants are the consignors under the Bill of Lading because Defendants provided their goods to United for shipment. See Louisville & N.R. Co. v. Central Iron & Coal, 265 U.S. at 67. 24. As shippers, consignors and consignees, Defendants are jointly and severally liable to United for payment under the terms of the Bill of Lading. See Exhibit "D", reverse side at section three. Accordingly, United is entitled to summary judgment on this claim. United is entitled to summary judgment against Defendants on United's claim for breach of an interstate trausportation contraO 25. United is also entitled to summary judgment against Defendants on United's claim for breach of an interstate transportation contract. Specifically, the Bill of Lading that Defendants signed is a contract, requiring the general application of contract law. See Southern Pac. Transp. Co. v. Commemial Metals Co., 456 U.S. 336, 342 (1982) (bill of lading is a contract); Paper Magic Group, Inc. v. J.B. Hunt Transport, Inc., 1318 F.3d 458, 461 (3d Cir. 2003); Beta Spawn, Inc. v. FFE Transportation Services, Inc., 250 F.3d 218,227 (3d Cir. 2001) (bill of lading is subject to general rules of construction under contract law). 26. To prevail on its breach of contract claim, United is required to show: (1) the existence of the Bill of Lading; (2) a breach ora duty imposed by the Bill of Lading; and (3) resulting damages from the breach. See J. F. Walker Co., Inc. v. Excalibur Oil Group, Inc., 2002 -6- Pa. Super. 39, 792 A.2d 1269, 1272 (2002) (stating elements for breach of contract claim under Pennsylvania law). 27. In light of Defendants' admission that they executed the Bill of Lading and that, pursuant to the Bill of Lading, United moved Defendants' property from Pennsylvania to Louisiana, there can be no question that a contract existed between United and Defendants. See Exhibit "F" at admission numbers 1, 2, 4 and 5. Further, the Bill of Lading imposes an absolute obligation on Defendants to pay United for United's moving services. See Exhibit "D", reverse side at section 3; see also Exhibit "E" at Exhibit "2." 28. Section three on the reverse side of the Bill of Lading provides that Defendants, as the shippers, consignors and consignees under the Bill of Ladling, have an absolute obligation to pay the charges for United's moving services, which are based upon United's published tariffs (Tariff 104-F and 400-M) that are incorporated into the Bill of l,ading by reference. See Exhibit "D', reverse side at section three and section entitled, "Notice of Availability of Published TarifF'; see also Exhibit "E" at ¶ 7. 29. In addition to the provisions of the Bill of Lading, Defendants' absolute obligation to pay United arises under the "filed rate doctrine." Under the filed rate doctrine, Defendants are presumed to know United's published tariffs, and are required to pay United for services that are based upon those tariffs. See Bowser and Campbell v. Knox Glass, Inc., 390 F.2d 193, 195 (3d Cir. 1968) (citing Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Fink, 250 U.S. 577 (1919)); see also North Penn Industries v. SIq~, 1995 WL 57521, *2-3 (E.D. Pa. 1995), Maislin, 497 U.S. at 126. 30. Defendants have admitted that United has not received payment for its moving services. See Exhibit "B" at ¶¶ 20 and 32; see also Exhibit "F" at admissions 8, 10 and 11. -7- More specifically, in Defendants' response to United's request for admissions, Defendants state that they: "have no way of knowing what United's total moving charges were for Defendants' move, since Defendants paid Worldwide..." Exhibit "F" at admission number 8. 31. Further, in paragraph 20 of Defendants' answer to United's complaint, Defendants state that they: "refused to pay [United]" for its moving services. Exhibit "B" at ¶ 20. Finally, Defendants admit in paragraph 32 of their answer that: "Worldwide failed to compensate Plaintiffs...' See id. at ¶ 32.3 32. In light of Defendants' concessions, there is no dispute that United suffered damages from Defendants' failure to pay United. As a result, United is entitled to summary judgment. United is entitled to summary judgment against Defendants on United's claim for uniust enrichment 33. United is entitled to summary judgment against Defendants on United's claim for unjust enrichment because: (1) United conferred a benefit upon Defendants; (2) Defendants accepted and appreciated the value of the benefit conferred; and (3) it would be inequitable for Defendants to retain the benefit conferred on them without paying United. See Mitchell v. Moore., 1999 Pa. Super. 77, 729 A.2d 1200, 1203 (1999) (stating elements for an unjust enrichment claim under Pennsylvania law). 34. In the first instance, Defendants admit that United moved Defendants' property from Carlisle, Pennsylvania to Metarie, Louisiana. See Exhibit "F" at admission numbers 4 and 5. Thus, Defendants concede that United conferred a benefit upon them. 35. Further, Defendants accepted United's moving services and appreciated the benefit of not having to move their goods from Pennsylvania to ]Louisiana themselves. 3 Defendants' alleged payment to Worldwide, and the fact that it does not extinguish Defendants' obligation to remit payment to United for United's moving services, will be discussed in greater detail, infra. 36. Finally, under Pennsylvania law, a party will be compelled to pay for a benefit received from another party where it would be unconscionable not to do so. See Mitchell v. Moore, 729 A.2d at 1203. Here, it would be unconscionable for Defendants not to pay for United's services because Defendants have not paid United for its services and have no justification for not doing so. Accordingly, United is entitled to summary judgment because there are no genuine issues of material fact regarding United's claim for unjust enrichment. United is entitled to summary judgment against Defendants on United's claim for account stated 37. United is also entitled to summary judgment against Defendants on United's claim for account stated because: (1) United kept a running account of its charges for Defendants' move; (2) a balance remains due on that account; (3) the account bas been presented to Defendants for payment; and (4) Defendants have assented to the account. See Rush's Service Center, Inc. v. Genareo, 10 Pa. D. & C.4th 445,446 (Pa. C.P. Lawrence 1991) (stating the elements for an account stated claim). 38. More specifically, United kept a running account for the moving charges that Defendants incurred based upon United's published tariffs. See Exhibit "G" at ¶ 7. 39. Defendants admit that United has not received payment for United's services and; as a result, a balance remains due on the account. See Exhibit "B" at ¶¶ 20 and 32. Further, Defendants acknowledge that United has requested Defendants to pay their account. See id. at ¶ 22. 40. Finally, based upon the filed rate doctrine and the terms of the Bill of Lading, Defendants are presumed to have assented to their account and are obligated to pay the outstanding balance. See Maislim 497 U.S. at 127-28. Therefore, United is entitled to summary judgment. United is entitled to summary judgment on all of its claims against Defendants notwithstanding Defendants' alleged payment to worldwide for United's moving services 41. United is entitled to summary judgment on all o£its claims against Defendants notwithstanding Defendants' alleged payment to Worldwide for Unitcd's moving services,n 42. Pursuant to the terms of the Bill of Lading and case law, Defendants remain liable to United for payment regardless of whether they paid Worldwide. 43. The Bill of Lading that Defendants accepted states: "[i]f credit is extended by the cartier by agreeing to bill an employer or other party, and in the event that any or all of the charges are not paid, the owner of the goods and/or beneficiary of the services acknowledges he remains primarily liable for payment." See Exhibit "D" on the facing side at section 2 and Exhibit "E" at Exhibit "2." (emphasis added). 44. Importantly, Worldwide never paid United for the services United provided to Defendants. See Exhibit "B" at ¶ 32. In accordance with the terms of the Bill of Lading, Defendants remain "primarily liable for payment" to United despite the fact that they allegedly paid Worldwide. See Exhibit "D" facing side at section 2; see also Exhibit "E" at Exhibit "2." 45. There is no dispute that Defendants were the shippers, consignors and consignees of their goods. See Exhibit "F" at admissions 1 and 2; see also Exhibit "D." Moreover, there is no dispute that United has fulfilled its obligations under the Bill of Lading. See Exhibit "F" at admission 5. Further, there is no dispute that Defendants have not paid United directly for United's moving services and that United has not received payment for those services. See 4 Nothing in the Bill of Lading establishes that Worldwide ever served as United's agent. See Exhibit "D", Exhibit "E" at Exhibit "2" and Exhibit "G" at ¶ l 1. Indeed, any issue pertaining to Worldwide is nothing more than a red herring. Defendants admit that United has not been paid for United's moving services. See Exhibit "B" at ¶¶ 20 and 32. Further, as a matter of law, Defendants remain liable to United under the terms~f the Bill of Lading and the filed rate doctrine. See Maislin, 497 U.S. at 127-28. As; a result, Defendants' purported payment to Worldwide is irrelevant. -10- Exhibit "B" at ¶¶ 20 and 32. Finally, there is no dispute that tl~te Bill of Lading provides that, in the event that United does not receive payment from Defendants, Defendants remain primarily liable for all moving charges incurred. See Exhibit "D" on the facing side at section 2 and Exhibit "E' at Exhibit "2." 46. Moreover, Defendants admit that United has no! received payment for its moving services. See Exhibit "B" at ¶¶ 11 and 32. Accordingly, based upon these undisputed facts, United is entitled to an award of summary judgment against Defendants on all of United's claims. United is entitled to summary judgment on Defendants' counterclaim for attorney's fees pursuant to 42 Pa. C.S. § 2503 47. United is entitled to summary judgment on Defendants' counterclaim for attorney's fees pursuant to 42 Pa. C.S. § 2503. Simply put, Defendants' claim for legal expenses is without merit and should be dismissed as untimely. See Seghetti v. Heritage Resorts of Gettvsburgh, 19 Pa. D. & C.4th 218, 220 (Pa. C.P. Adams 1993). 48. Defendants' countemlaim for attorney's fees cannot be imposed, if at all, until the conclusion of these proceedings. Therefore, summary judgment should be granted in favor of United on Defendants' counterclaim. -11- WHEREFORE, plaintiff, United Van Lines, LLC, respectfully requests that this Court grant summary judgment in its favor on all of its claims against defendants, Antonio Lopez and Michelle Lopez, and against defendants on their counterclaim. Further, plaintiff respectfully requests that this Court award plaintiff actual damages against ,defendants in the amount of $5,841.98, together with interest. Dated: April 12, 2004 Respectfully submitted, ~loshua H~~r' r~ David T. Games, Esquire FOX ROTHSCHILD LLP 2000 Market Street, l0th Floor Philadelphia, PA 19103 Telephone: (215) 299-2000 Telecopier: (215) 299-2150 Attorneys fi>r Plaintiff United Van Lines, LLC -12- FOX ROTHSCHILD LLP BY: Joshua Horn, Esquire and David T. Games, Esquire IDENTIFICATION NOs. 71799 and 85998 2000 MARKET STREET, TENTH FLOOR PHIL4,DELPHIA, PA 19103-3291 (215) 299-2000 UNITED VAN LINES, LLC, One United Drive Fenton, MO 63026-1350, Plaintiff, ANTONIO LOPEZ and MICHELLE LOPEZ, H/W, 4716 LAKEWOOD DRIVE METAIRIE, LA 70002, Defendants. ATTORNEYS FOR PLAIN 1 lief UNITED VAN LINES, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. -0046-03 NOTICE TO DEFEND You have been sued in court. If you wish to defend against ~te claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you by the coua 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 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 COMPLAINT Plaintiff, United Van Lines, LLC ("United"), by and through its attorneys, Fox Rothschild LLP, hereby files this complaint against defendants, Antonio Lopez and Michelle Lopez (collectively, the "Defendants"), and avers as follows: THE PARTIES 1. United is a Missouri limited liability company whose principal place of business is located at One United Drive, Fenton, Missouri 63026-1350. United is a motor carder of household goods and personal property, and regularly conducts business in the Commonwealth of Pennsylvania. 2. Defendants are citizens of the state of Louisiana who reside at 4716 Lakewood Drive, Metairie, Louisiana 70002. JURISDICTION AND VENUE 3. Venue is proper in Cumberland County pursuant to Pennsylvania Rule of Civil Procedure 2179 because United regularly conducts business in Cumberland County and all of the transactions or occurrences that give rise to these proceedings took place in Cmnberland County. Jurisdiction is specifically granted to this Court over these proceedings pursum~t to 28 U.S.C. § 14706(d)(3). BACKGROUND 4. The matters complained of herein and the liabili~ of Defendants is predicated upon the interstate transportation of cargo by United, pursuant to a Unifo~xn Household Goods Bill of Lading and Freight Bill ("Bill of Lading"), and United's duly published tad:frs incorporated therein by reference. -2- See 49 U.S.C. §§ 13702 and 13706. A true, accurate and complete copy of the Bill of Lading, which incorporates by reference United's published tariffs, is attached hereto as Exhibit "A-.'' 5. On or about July 10, 2001, Defendants entered into and accepted a contract with United for the interstate shipment of Defendants' cargo from 285 Fairview Drive, Carlisle, Pennsylvania 17013 to 4716 Lakewood Drive, Metairie, Louisiana 70002, which was delivered by United on July 17, 2001. 6. To assist them in their move, Defendants retained the services of Worldwide Relocation Services, LLC ("Worldwide"). 7. United has no contractual or business relationship with Worldwide. 8. Pursuant to the Bill of Lading, Defendants were the shippers, consignors and consigne6s of their household goods. COUNT I JOINT AND SEVERAL LIABILITY UNDER THE BILL OF LADING 9. United incorporates by reference as if set forth at length herein the allegations in paragraphs 1 through 8 above. 10. Pursuant to the Bill of Lading, United provided transportation services to Defendants. 11. As a result of the transportation services that were accepted by Defendants, United remitted an invoice to Defendants in the amount of $5,800.99. A tree, accurate and complete copy of invoice number 0268 01124 1 is attached hereto as Exhibit "B." 12. Defendants refused to pay United for the transportation charges that they incurred because, unbeknownst to United, Defendants allegedly paid Worldwide for the relocation services that United provided to Defendants. 13. United was not privy to any agreement between Defendants and Worldwide; in fact, any agreement between Defendants and Worldwide (and any payments thereunder), does not effect Defendants' contractual obligations to United. 14. United has no control or authority over Worldwide and is not associated with Worldwide in any way. 15. The Bill of Lading states, in part, "[i]f credit is ex,tended by the carrier by agreeing to bill an employer or other parties, in the event that any or all charges are not paid, the owner of the goods and/or beneficiary of all charges remains primarily liable for payment." See Exhibit "A." 16. Moreover, section three on the reverse side of the Bill of Lading states, in part, "[t]he shipper, (individual or commercial) and consignor upon tender of the shipment to carrier, and the consignee, upon acceptance of delivery of shipment from carrier,, shall be liable, jointly and severally, for all unpaid charges payable on account of a shipment in accon]ance with applicable tariffs including, hut not limited to, sums advanced or disbursed by a carder on account of such shipment." See id. 17. Additionally, courts that have considered the question of joint and several liability under a bill of lading providing for consignor/consignee liability have unanimously concluded that a shipper -4- and a third-party through whom the consignment was made are jointly and severally liable for all outstanding transportation charges. See United Van Lines, Inc. v. Zak, 861 F. Supp. 61, 63 (S.D. Ill. 1994); United Van Lines, Inc. v. Hellman, 949 F. Supp. 126 (E.D.N.Y. 1996); United Van Lines v. Homburger, 932 F. Supp. 139 (W.D.N.C. 1996). 18. The preceding cases interpret 49 U.S.C. § 14706 _~g seq., which as stated earlier governs these proceedings and the contractual relationship between United and Defendants. See 49 U.S.C. § 14706(d)(3). 19. Accordingly, pursuant to the term~ of the Bill of Lading and federal law, Defendants are jointly and severally liable for the sum of $5,800.99, plus interest, due and owning to United. 20. Notwithstanding repeated demands for payment of the $5,800.99, Defendants have refused to pay any part of the transportation charges and other related charges due to United. WHEREFORE, plaintiff, United Van Lines, LLC, prays that this Court will enter judgment in its favor and against defendants, Antonio Lopez and Michelle Lopez, for actual damages in the amount of $5,800.99, together with interest at the legal rate from the relative dates to the date of judgment, for the costs of this action, and for such other and further relief as the Court deems just and proper. 21. COUNT II BREACH OF INTERSTATE TRANSPORTATION CONTRACT United incorporates by reference as if set forth at length herein the allegations in paragraphs 1 through 20 above. -5- 22. The transportation and other related charges accruing fi.om the interstate transportation of Defendants' cargo is $5,800.99. See Exhibit "B." 23. The transportation services and other related services for the interstate carriage of the cargo were performed in accordance with the Bill of Lading and United's tariff provisions incorporated therein. 24. Defendants were the actual and beneficial owners or legal possessors, shippers, consignors and consignees of the cargo for which United provided the interstate transportation services pursuant to the Bill of Lading. In accordance with 49 U.S.C. §§ 13702 and 13706, United is obligated to collect, and Defendants are obligated to pay, the full applicable t:ariff charges due. 25. As reflected in the Bill of Lading, Defendants accepted the cargo upon delivery at the destination specified in the Bill of Lading. 26. United has performed all of the terms and conditions set forth in the Bill of Lading and there is due and owing the sum of $5,800.99 as unpaid tariff transportation charges and/or other related charges. 27. Despite timely and repeated demand, Defendants have breached the Bill of Lading by failing and/or refusing to pay United the outstanding transportation charges and other related charges. Defendants are liable to United in the sum of $5,800.99, pursuant to the terms of the Bill of Lading and the I.C.C. Termination Act of 1995, 49 U.S.C. §§ 13706 and 13707. WHEREFORE, plaintiff, United Van Lines, LLC, prays that this Court will enter judgment in its favor and against defendants, Antonio Lopez and Michelle Lope:,~, for actual damages in the amount of $5,800.99, together with interest at the legal rate from the relative dates to the date of judgment, for the costs of this action, and for such other and further relief as the Court deems just and proper. 28. COUNT III UNJUST ENRICHMENT United incorporates by reference as if set forth at length herein the allegations in paragraphs 1 through 27 above. 29. On or about July 10, 2001 through July 17, 2001, at the request of Defendants, United transported Defendants'property. 30. United rendered to Defendants work, labor, mate~fals and services for which Defendants promised to pay the reasonable value thereof. 31. United conferred a benefit upon Defendants by providing them with the transportation and freight services as described above. 32. United, at the time it supplied Defendants with such services, had a reasonable expectation of being compensated therefore. -7- 33. The services were conferred upon Defendants at the express request and insistence of Defendants. If Defendants are allowed to retain the benefits conferred upon them by United, without compensating United therefore, Defendants will be unjustly enriched. 34. The reasonable value of all of the services performed by United for the benefit of Defendants was $5,800.99. 35. Notwithstanding repeated demands for payment of the $5,800.99, Defendants have refused to pay any part of the transportation charges and other related charges due to United. WHEREFORE, plaintiff, United Van Lines, LLC, prays that this Court will enter judgment in its favor and against defendants, Antonio Lopez and Michelle Lopcz, for actual damages in the amount of $5,800.99, together with interest at the legal rate from the relative dates to the date of judgment, for the costs of this action, and for such other and further relief as the C. ourt deems just and proper. 36. COUNT IV ACCOUNT STATED United incorporates by reference as if set forth ali length herein the allegations in paragraphs 1 through 35 above. 37. At all relevant times, United maintained a book account on the invoices that memorialized its agreement to provide transportation and freight services to Defendants. Defendants' account is an accurate and running account of the balance due and owing to United. -8- 38. As of this date, United is owed the sum of $5,800.99, plus interest, on this accOunt. 39. Although United has made repeated demands for payment to Defendants, Defendants have failed and/or refused to pay the amounts due on its account. WHEREFORE, plaintiff, United Van Lines, LLC, prays that this Court will enter judgment in its favor and against defendants, Antonio Lopez and Michelle Lopez, for actual damages in the amount of $5,800.99, together with interest at the legal rate fxom the relative dates to the date of judgment, for the costs of this action, and for such other and further relief as the Court deems just and proper. JOSHUA HORN, ESQUIRE DAVID T. GARNES, ESQUIRE FOX ROTHSCHILD LLP 2000 Market Street, l0th Floor Philadelphia, PA 19103 Telephone: (215)299-2034 Telecopier: (215) 299-2150 Attorneys fi~r Plaintiff United Van Lines, LLC Dated: August ~_~_, 2003 -9- ATTORNEY VERIFICATION I, JOSHUA HORN, ESQUIRE, hereby verify that I am the attorney of record for plaintiff, United Van Lines, LLC; that I am authorized to take this verification on its behalf pursuant to Pa. R.C.P. 1024(c) because United Van Lines, LLC is outside of the jurisdiction of the Court and its verification cannot be obtained within the timefi'ame allowed for filing this pleading; and that based upon my review of the material documents in this case and my reasonable investigation, the facts contained in the foregoing complaint are tree and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the l~:nalties of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authorities. JOS} IA HORN, ESQUIRE Dated: August {~, 2003 -10- -~..268PRULK~S NOVI~ & 5047383520 ,. UN~,'E~ VAN LINES~ LLC ~2304 NETWORK PLACE ' ' CHIOAGO; IL 60673-1~3 WORLE~IDE RELOCATION SERV LLC ATTN: ACCOUNTS PAYABLE 2321N HSLLEN STE A HETAIRIE, LA 70001 MICHELLE LOPEZ FED. ID t43-I~1477 Unifed Van Lines, LLC One United Drive Fenton, MO 6,3026-1350 636-326-3100 ICARLISLE PA METAIRIE LA LL85 3 1106 9660 9660 PlO. 28 1 FUEL SURCHARGE A~DL TRANS ORIG 1 ABDL TRANS BEST 23 DISH PACKS 8 30.45 ~3 CARTON i 1/~ CU. FT. 8 6.45 16 CARTONS 3 CU. FT. ~ 9.30 8 CARTONS 4 1/~ CU FT. 8 11.~0 10 WARBROBE CTN ~ ~3.85 4 TWIN MATTRESS CTN ~ 15.75 4 BOUBLE MATTRESS CTN ~ 19.50 1~ CORR NIRROR CTN @ ~4.50 TOTAL CONTAINERS l~ TRANSPORTATION 9660 lBS 2.20/CWT ?660 LBS .85/CUT Per Cwl. $ 700,35 148.35 148.80 8~.60 238.50 63.00 78.00 294.00 8834.00 148.41 212.52 82.11 1760,60 23 BISH PACKS : . ~:' = ~ 4a.~O 23 CARTON I .~/2 CU~ FT'{i ~:' 11.65" ::~i~'. 26~:;.95 16 CARTONS 3~:CO. FT: - ~ ~ :~8.10 8 CARTONS ;4 :.I/2.:CU;FT~ :: 'n~ ~" t'' ' 10 WARDROBE ,i~CTN :.: :.. 8~ ::13. ~5 . :~ :'i; ~'' ,1,32 12 CORR MIRROR CTN 8::41.~25 :'; ':~495:..00 4 TWIN MATTRESS'CTN ~ ' 12~85 51.40 4 BOUBLE'MATTRESS,'CTN 8 12.85 51.40 TOTAL PACKING' 4 TWIN MATTRESS CTN 8 3.60 14.40 4 BOUBLE MATTRESS CTN 8 3.60 14,40 TOTAL UNPACKING 1 APPLIANCE BESERVICE 8 21,75/EA 1 APPLIANCE BESERVICE 8 13.70/EA SERVICES SUBJECT TO BTM LINE DISCOUNT LESS: 58.00 ~ BOTTOM LINE DISCOUNT ** SERVICES EXCLUBEB FROM ~ISCOUNTING SUBTOTAL: 13458.53 7805.95 148,41 * * * CONTINUE~ NEXT PAGE 2505.05 28.80 21.75 13.70 -~,..UNI'TED VAN LINES, LLC 22204 NETUORK PLACE ' 'CHICAGO, IL 60&73-1223 WORLDWIDE RELOCATION SERV LLC ATTN: ACCOUNTS PAYABLE 23~1N HULLEH STE A METAIRIE, LA 70001 FED, ID 143-1881477- United Van Lines, LLC One United Drive Fenton, MO ~26-1350 636326-3100 01124 1 -01 I 08/01/01 ] ff NO. Miles NET TOTAL: Lbs. A~ Per Cwt. $ RE~UIRE~ DOCUMENTS I ORIGINAL INVOICE 1SIGNEB BIlL OF LADING 1 WEIGHT TICKETS I PURCHASE ORDER NUMBER 1 ADDRESS FOR EXTRA STOP INVOICE COPIES SIGNEB INVENTORY' PURCHASE ORB/LETTER OF AUTH ADTL SERVICES FORM 5800,99 CERTIFICATE OF SERVICE ~.~ . I, DAVID T. GARNES, ESQUIRE, hereby certify that on the {~ day of August 2003, a true and correct copy of the foregoing complaint of plaintiff, United Van Lines, LLC, against defendants, Antonio Lop~z and Mich¢lle Lopcz, was served upon the following individual, via United States first class mail, postage prepaid, and addressed as follows: John H. Broujos, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Attomey for Defendants Antonio Lopez and Michelle Lopez DAVID T. GARNES, ESQUIRE UNITED VAN LINES, LLC ONE UNITED DRIVE FENTON, MO 63026-1350 Plaintiff ANTONIO AND MICHELLE LOPEZ 4716 LAKEWOOD DRIVE METAIRIE, LA 70002 Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY ANSWER AND NEW MATTER Defendants, Antonio and Michelle Lopez, husband and wife, by and through their attorneys Broujos & Gilroy, P.C., hereby answer the complaint against them and aver as follows: 1. Admitted, according to Defendants' knowledge and belief. 2. Admitted. 3. Admitted that pick up of household goods occurred in Cumberland County. By way of further reply and clarification, Defendants are citizens of the United States of America, residents of the state of Louisiana and residing at the address stated in Plaintiff's complaint. 4. Denied. Defendants assert that Paragraph 4's averments are so general and vague that Defendants are without knowledge or sufficient information to form a belief as to the truth of the averment and therefore deny "that the matters complained of herein and the liability of Defendants is predicated upon the interstate transportation of household goods by United, pursuant to a Uniform Household Goods Bill of Lading and Freight Bill (Bill of Lading), and United's duly published tariffs incorporated therein by reference." In addition, Defendants assert that this calls for a legal conclusion and therefore they are not required to admit or deny such statement. Defendants deny that Exhibit A is a true and accurate copy of the Bill of Lading, since the copy is unreadable in all parts. Clear copy is demanded. After reasonable investigation Defendants are without knowledge or information sufficient to form a belief as to the troth of the averment. Proof is demanded. Defendants deny that such admission establishes any liability to Plaintiff. Defendants also deny that such is a complete copy of the Bill of Lading. 5. Denied. On or about July 10, 2001 Defendant Antonio Lopez did sign Plaintiff's Bill of Lading, not considered by Defendants to be a contract, and not conceding that the Bill of Lading established liability to Plaintiff based on the facts and law in this case. 6. Admitted. 7. Denied. On the contrary, documents have been submitted that contain the name "Worldwide Relocation Service LLC", including Plaintiff's Exhibit A, together with a prior similar payment arrangement among the same parties, indicating a contractual or business relationship. In addition, Plaintiff had an express or implied agreement with Worldwide for payment of charge by Defendants to Worldwide for the purpose of delivery of the payment to Plaintiff under contract or agency. 8. Denied. Defendants deny that they were they shippers, consignors and consignees or their household goods.. 9. Defendants incorporate the answers to this incorporated reference in accordance with above averments. 10. Denied that Plaintiff provided transportation services to Defendants only pursuant to the Bill of Lading. On the contrary, Plaintiffprovided transportation services to Defendants in accordance with all of the documents and written and verbal agreements involved in this case. Denied that such facts create any liability on the part of Defendants to Plaintiff. On the contrary, once Defendants paid Worldwide, Worldwide had a duty to pay to Plaintiff a portion of the payment on the basis of agency, contract, and duty. 11. Denied. On the contrary, Plaintiffremitted an invoice as a result of the failure of Worldwide to remit the charge, as predetermined, by agency, agreement, practice, and custom of both Worldwide and Plaintiff. 12. Denied. On the contrary, Defendants refused to pay Plaintiff for charges because Defendants had already paid Worldwide. Denied that Plaintiffwas unaware that Defendant had prepaid for the shipping. On the contrary, Plaintiffdid have knowledge. 13. Denied. On the contrary, Plaintiff was privy to the entire transaction among the consignor Worldwide, carrier United, and consignee Defendants Denied that the relationship between Defendants and Worldwide had no effect on Defendants' relationship to Plaintiff. On the contrary, Plaintiff knew or should have known of the pre-payment by Defendants to Worldwide, and that the sums due to be collected by Plaintiff were due only from Worldwide. 14. Denied. On the contrary, all three parties Plaintiff, Defemtants and Worldwide had previously entered into an identical arrangement during the transportation of Defendants' household effects from New Orleans to the Army War College in July of 2000, only a year previous to the move relative to this matter. The name Worldwide is written many times on the various shipping documents. Otherwise, Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment. 15. Admilted as to the language. Denied that under the facts of this matter Defendants are liable to Plaintiff. The provision is unconscionable, unlawful, and unconstitutional. 16. Denied that Defendants are liable in any way or theory after Defendants paid consignor Worldwide, since Plaintiff had knowledge of or had reason to believe that Worldwide, prior to shipping, collected the shipping charges for Plaintiff's service; Worldwide converted the funds to Worldwide's use; and Plaintiffknew of the bankruptcy of Worldwide. In addition, the charges for services of Plaintiff were not unpaid charges; they were paid charges, paid to Worldwide, a de facto or de jure agent for collection of charges for Plaintiff. In addition, the Bill of Lading language is unconscionable, unlawful, and unconstitutional. 17. Denied. Paragraph 17 states a legal conclusion and Defendants are not required to admit or deny~ By way of further answer, it is denied that the cases cited are applicable to the facts of this matter~ 18. Paragraph 18 states a legal conclusion and Defendants are not required to admit or deny. 19. Denied. On the contrary, Defendants are not liable for any sum. 20. Admitted that Defendants have refused to pay Plaintiff the sum of $5,800.99. Defendants paid Worldwide $7,218.93 on June 20, 2001, $5,800.99 of which was paid for the shipping services rendered by Plaintiff, which absolved Defendants of any further obligation of payment. 21. Defendants incorporate the answers to this incorporated reference in accordance with above averments. 22. Admitted that Plaintiff has billed to Defendants the sum of $5,800.99. 23. Admitted that transportation services were performed by Plaintiff. Denied that there are other related services. Denied that services were performed in accordance with the Bill of Lading, since printing on the Bill of Lading is vague and undisceraable in all parts. Denied that services were in accordance with tariffprovisions, which is a man:er of law. 24. Denied. On the contrary, Defendants were consignees only of the cargo. Denied that Plaintiff provided services pursuant only to the Bill of Lading, since there were other documents involved in the transaction. Admitted that Defendants are obligated to pay charges. Denied that Defendants are obligated to pay Plaintiff after paying Worldwide. On the contrary, Defendants have no obligation to Plaintiff a gecond time for the same services. 25. Admitted. Denied that such fact creates any liability on the part of Defendants to Plaintiff. 26. Admitted that Plaintiffs performed delivery of the cargo. Denied that Defendants owe the sum of $5,800.99 to Plaintiff. On the contrary, there were no unpaid charges at time of delivery, since payment had been made to Worldwide. Plaintiffs are estopped from claiming that charges are payable to Plaintiff, since Plaintiff knew of the arrangement t~or and actual payment of the fee to Worldwide on this occasion on June 20, 2001 and as a result of prior custom and practice of Worldwide, Plaintiff, and Defendants, as evidenced by pick up, delivery, and payment to Worldwide as agent for Plaintiff on a prior occasion. 27. Admitted that demands were made. Denied that Defendants breached the Bill of Lading since Defendants had no obligation to pay Plaintiff any sums since payment was made to Worldwide for Plaintiff. Plaintiff knew or should have known that payment in full for the shipping service provided was made prior to the Bill of Lading being signed. 28. Defendants incorporate the answers to this incorporated reference in accordance with above averments. 29. Admitted. Denied that such fact creates any liability on the part of Defendants to Plaintiff. 30. Admitted. Denied that payment was not made. On the contrary, payment was made. 31. Admitted that Plaintiff delivered cargo to Defendants. Denied that delivery constituted a benefit justifying recovery as an unjust enrichment of Defendants since Defendants paid for the services of Plaintiff. 32. Admitted that Plaintiff was entitled to compensation. Denied that Plaintiff has a right or expectation of being compensated by a second payment by Defendants when Defendants had paid Worldwide for Plaintiff. Plaintiffknew or had reason to know that payment would be and was collected by Worldwide from Defendants for Plaintiff. Worldwide failed to compensate Plaintiffs, not Defendants. 33. Denied that Defendants insisted. Defendants simply entered into an agreement for delivery of cargo after receiving the name of Plaintiff from Worldwide as a prospective hauler. It is denied that Defendants expressly requested or insisted upon services from United. It is denied that Defendants will be unjustly enriched since Defendant.'; paid for the service. 34. Admitted that Defendants have already paid, with Plaintifl?s knowledge and consent that payment would be made to Worldwide for Plaintiff. 35. Denied. Defendants did make payment to Plaintiff through the agent Worldwide for the principle Plaintiff. 36. Defendants incorporate the answers to this incorporated reference in accordance with above averments. 37. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment. 38. Denied. On the contrary, no sums are owed. 39. Admitted. Denied that any sums are owed. WHEREFORE Defendants ask the Court to dismiss the Complaint. NEW MATTER Defendants, by and through their attorneys, Broujos & Gilroy, P.C., in accordance with Pa. R.C.P. 1030, assert the following New Matter: 40. Taken together as a whole, reading the four comers of all documents, all parties knew the job was pre-paid. If Plaintiff failed to enter the words "prepaid" on the Bill of Lading, Plaintiffhad a duty to do so. Plaintiff thereby committed acts which were intentional, fraudulent, and deceitful, unconscionable, or negligent. 41. To hold Defendants liable for a second payment to Plaintiff after paying Worldwide for the ch,arge of Plaintiff for services is unconscionable. 42. The Bill of Lading contains terms impressed upon Defendants in the hurried process of movement and is an unconscionable document. To enforce it iu the manner insisted by Plaintiff would result in an unconscionable and unlawful result against Defendants. 43. At the time of the signing oftbe Bill of Lading there was an absence of meaningful choice on the part of Defendants as to whether or not they could alter any terms of the Bill of Lading and still receive the shipping services they had already paid $7,218.93 for on June 20, 2001. 44. Plaintiff failed to explain prior to the signing of the Bill of Lading that, if Worldwide did not forward payment to Plaintiff as agreed upon, Defendants wotfld be pursued to pay the bill twice, nor was the language contained in the Bill of Lading bolded, italicized or in any manner highlighted or otheO~vise pointed out to Defendants prior to Defendants being forced to sign such in order to receive the shipping services they had already paid for in full. 45. Defendants were under duress from Plaintiff, in that if Defendants had not signed the Bill of Lading their household goods would not have been loaded and shipped from Carlisle, Pennsylvania back to their home in Louisiana. 46. Defendants were obligated to a specific timeline of vacating the premises occupied at the Army War College by a specific date and were forced to accept tlhe unconscionable terms and consequences, albeit unknown to them at the time, of the Bill of Lading. 47. An absence of any meaningful choice whatsoever existed regarding the Defendants' choice as to their acceptance of all terms of the Bill of Lading and the consequences thereof. 48. Where a consignor defaults on payment of freight charges, equitable estoppel precludes the carrier Plaintiff from collecting charges from the innocent consignee Defendants. 49. No conflict arises between recognition of an estoppel defense and the anti-discriminatory purpose of rate enforcement sections of the Interstate Transportation Code raised by Plaintiff as grounds for this unconscionable complaint against the innocent consignee Defendants, who have already paid $7,218.93 for the shipping service received and now paid thousands of additional attorney fees defending such complaint against them. 50. Plaintiff, by its past deeds of utilizing Worldwide as an agent for payment transmission between itself and Defendants, by accepting the June 6, 2001 Binding Estimate Cost of Service between Worldwide and Defendants in its reference to such in its Bill of Lading, and by its other actions and inactions between May of 2001 and May of 2003, did lead Defendants to justitlably rely on the informal agreement that Defendants would owe no more funds for the shipping service received. 51. Defendants were induced and justifiably relied on the past actions of Plaintiff in the previous move in July of 2000 and by the letter of July 19, 2001, :and in all other interactions between the parties between July of 2000 and May of 2003 that it' payment was made to Worldwide that their household goods would be shipped and that no further money would be due. 52. In July of 2000 Defendants, did select the services of Worldwide Relocation Services, LLC to ship their household goods from New Orleans, Louisiana, to Carlisle, Pennsylvania and, among choices presented by Worldwide, United Van Lines was selected to be the carrier of the household goods. Defendants did pay Worldwide as the consignor for transportation services provided and Plaintiff, the carrier, was paid by Worldwide as agreed upon by all parties, as a mirror image of the present case. 53. Plaintiffhas been contracting with Worldwide since at least July of 2000, by which both parties gained business in the form of additional shippers such as Defendants. 54. Plaintiff was agent of Worldwide, either de jure or de facto, in that Worldv,4de was involved in the process of selection by Defendants of Plaintiff as a carrier, having been associated with Plaintiff in prior moving contracts, with the n~xme of Worldwide occurring on most of the documents of Plaintiff. 55. Sometime during early May 2001 Defendants did again contact Worldwide to handle moving Defendants' household goods from Carlisle, Pennsylvania back to Metairie, Louisiana. 56. Presented with choices of carriers, Plaintiffonce again was selected, since the previous move was without incident. 57. On May 25, 2001 Paulk's Moving and Storage, Inc., United Van Lines, 6131 River Road, New Orleans, Louisiana (Paulk United) did send a facsimile containing information regarding Defendants' move that Plaintiffcould have obtained only from Worldwide. 58. Plaintiff's Exhibit A, the Bill of Lading, references a "FII~aM PRICE BID" which in fact refers to the contract price of the "Binding Estimate Cost of Service" contract signed between Defendant Michelle Lopez and Worldwide Relocation Services [.LC on June 6, 2001, attached hereto as Defendants' Exhibit A. 59. The Binding Estimate Cost of Service contract does state: "Payment is due prior to the day of loading in certified funds to Worldwide relocations...". This is equivalent to "pre-paid". See Defendants Exhibit A. 60. The signed Binding Estimate Cost of Service was mailed back shortly after June 6, 200 I. 61. A letter dated June 19, 2001 was received from Paulk United giving Defendants their dates for packing (July 9, 2001), loading (July 10, 2001), and a range of dates for delivery (July 16-19, 2001). 62. On June 20, 2001 Defendants did send a cashier's check :From Commerce Bank for the contract price of $7,218.93 to Worldwide Relocation Services, LLC. 63. Worldwide was paid the $5,800.99 it owes Plaintiff by Defendants on June 20, 2003. 64. United and Worldwide were in communication prior to May 25,2001 as evidenced by the facsimile from Panlk United. 65. Plaintiff had full knowledge of the Binding Estimate Cost of Service contract between the Defendants and Worldwide. 66. The identical method of shipment and payment was employed in the prior shipment of Defendant's household effects from Louisiana to the Army War College in July of 2000. 67. Based on past business relations and dealings and common business practices, Plaintiff had knowledge or had reason to know that Defendants paid Worldwide in full for the carrier services prior to them being rendered. 68. Plaintiff had knowledge or should have had knowledge that Defendants were required to pay Worldwide in full prior to the loading of their household goods and therefore knew that the services rendered by them as the carrier were prepaid. 69. It is common household goods transportation practice between consignor, carrier, and consignee/shipper (such as Worldwide, Plaintiff, and Defendants in this matter) to carry out a shipment of household goods in a manner as follows: the consignee/shipper pays the consignor, the carder picks up the consignee/shipper's goods and ships thern to the predetermined destination, and the consignor pays the carrier. 70. Plaintiff knew or should have known that Defendants had paid or were paying Worldwide the entire sum of $7,218.93 for the transportation of the household effects of Defendants. 71. Plaintiff knew or had reason to know that the payment to be made and which was made by Defendants to Worldwide was the only payment to be made for the transportation of the household effects, once the payment was made. 72. No invoice or bill for services was sent from Plaintiff to Defendants until May 28, 2002 via UPS 2nd Day Air Letter from Ms. Nancy Bradford. 73. Worldwide Relocation Services, LLC filed for bankruptcy on March 15, 2002. 74. Plaintiffknew or should have known even prior to March 15, 2002 that Worldwide was in a precarious financial situation and that bankruptcy was one alternative to that financial situation. 75. Plaintiff, who knew or should have known that Defendants paid for the cost of shipping the household effects to Worldwide, should have so informed Defendants prior to March 15, 2002 as to the potential bankruptcy status of Worldwide. 76. The first debtor's meeting was held on May 2, 2002. 77. Plaintiff failed to give notice or to take any action to protect Defendants from the risk of double payment. 78. Plaintiff, upon learning of the bankruptcy of Worldwide, should have filed a claim for the amount of money, in the amount of the total $5,800.99, the amount of debt claimed due by Plaintiff by Defendants and Worldwide, but failed to do so. 79. Plaintiff, upon learning of the bankruptcy of Worldwide, should have notified Defendants immediately of the bankruptcy proceedings and of Plaintiffs intent to collect the $5,800.99 from Defendants in order to give notice to Defendants that they should file as a creditor against Worldwide for the $5,800.99. 80. The intent of the Congress at the time of passage of 49 USC § 13706 was not to impose joint and several liability on an innocent shipper who has paid for the services rendered as agreed to a consignor which then files bankruptcy and fails to pay the carder. 81. As between the carrier and a consumer, under the circumstances of this case, it is the carrier that should be the party bearing any loss as a result of bankruptcy of the consignor, not the innocent consumer. 82. It is not enough to place a reference to joint liability on a hill of lading; there should be imposed a duty to inform shippers not just of joint liability but of the risk of double billing and precautions to take, such as issuing payment in the name of both the consignor and the carder. 83. If Plaintiffclaims it was not privy to any agreement for payment to Plaintiff through the payment by Defendants to Worldwide and that Worldwide had no authorization to pay, the collection by Worldwide of Plaintiff's share of charges would have been a criminal act of conversion and theft, justifying Plaintiff in objecting to the discharge of Worldwide as a dishonest debtor. And Plaintiff would have obtained the $5,800.99. 84. Based upon all facts asserted in paragraphs 1-83 Defendants assert that the doctrines of laches, equitable estoppel, discharge in bankruptcy of the true debtor, and previous payment by Defendants all act as defenses to the complaint by Plaintiff against Defendants. DEFENDANTS'COUNTERCLAIM Defendants file this Counterclaim as follows: 85. Defendants incorporate herein averments set forth in new matter and in answer to complaint. 86. Defendants have been compelled by the filing of this actinn to expend substantial sums for legal fees, transportation to and from Louisiana, overnight accommodations, and related expenses in the amount of approximately $6,500, with additional costs as the case progresses. 87. The conduct of Plaintiff in commencing the action was arbitrary, vexatious and in bad faith, in that Plaintiff at the time of filing and since was aware or had reason to be aware that the law in the Third Circuit Court of Appeals is that when a consignor (Worldwide) defaults on payment of freight charges, equitable estoppel precludes carrier Plaintiff with knowledge of the payment from collecting charges from innocent consignee Defendants who have already paid consignor. 88. Defendants had paid to Worldwide for Plaintiffthe claim of Plaintiff in the amount of $5,80O.99. 89. Defendants have given notice to Plaintiff from the commencement of demands for payment and filing of claim before a District Justice, to filing of Complaint and Answer to the complaint, that Defendants are not liable to Plaintiff because Defendants paid Worldwide as agent for Plaintiffs and in pursuance of shipping arrangements and based on prior similar shipping arrangements. WHEREFORE, Defendants demand payment of all expenses, including legal expenses in accordance with 42 PaCSA 2503. Date: August 27, 2003 Respectfully subm~tted,~ John H. Broujos, Esquire #6268 BP~OIJJOS & GILROY, P.C. 4 North Hanover Street Carlisle, Pennsylvania 17013 717/243-457'4; 717/766-1690 FAX# 717/243-8227 BINDING ESTIMATE COST OF SERVICE ; .~<-' .-a.., ~.-'~7~--.-. -: ~ A.: ,, ~.~., ~e~'s---.. ,,- A- ce'~.,..-~. i~. ~_ , ~I~ '" I verify that the statements made in this pleading are true and correct upon signer's personal knowledge or information and belief from Defendants. The reason that verification is not made by parties is that they are outside the jurisdiction, residing and working in Louisiana. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: ~ John H. Broujos, Attorney TO PLAINTIFF: NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ABOVE PLEADING WITHIN 20 DAYS FROM THE DATE OF SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST ~ ~ Joy'iff UNITED VAN LINES, LLC ONE UNITED DRIVE FENTON, MO 63026-1350 Plaintiff ¥. ANTONIO AND MICHELLE LOPEZ 4716 LAKEWOOD DRIVE METAIRIE, LA 70002 Defendants COURT OP COMMON PLEAS CUMBERLAND COUNTY NO. 0046-03 CERTIFICATE OF SERVICE I, John H. Broujos, Esquire, hereby certify that I have served a ~ae and correct copy of Answer, New Matter, and Counterclaim in the foregoing case on the following person and at the following address by United States, First Class Mail, on August 27, 2003 to: A~O~EY Joshua Horn, Esquire FOX ROTHSCHILD LLP 2000 Market Street, 10~h Floor Philadelphia, PA 19103 BROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, Pennsylvania 17013 (717) 243-4574 (717) 243-8227 FAX FOX ROTHSCHILD LLP BY: Joshua Horn, Esquire and David T. Games, Esquire IDENTIFICATION NOs. 71799 and 85998 2000 MARKET STREET, TENTH FLOOR PHILADELPHIA, PA 19103-3291 (215) 299-2000 UNITED VAN LiNES, LLC, Plaintiff, ANTONIO LOPEZ and MICHELLE LOPEZ, H/W, Defendants. ATTORNEYS FOR PLAINTIFF UNITED VAN LINES, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 03-3442 AFFIDAVIT OF WILLIAM J. EYERMANN~ III STATE OF MISSOURI COUNTY OF JEFFERSON SS. I, William J. Eyermann, III, being duly sworn, upon oath, deposes and states as follows: 1. I am a resident of the State of Missouri and over the age of majority. 2. I have personal knowledge of the facts to which I testify herein. 3. I am employed by United Van Lines, LLC ("United") as Manager - Pricing Development, Rates & Tarffs. 4. I am authorized to take this affidavit on behalf of United. 5. I take this affidavit based upon personal knowledge and upon information contained in the files maintained by United regarding this matter. 6. In my capacity as Manager - Pricing Development, Rates & Tariffs of United, I have direct responsibility regarding the administration of the Household Goods Tariffs maintained by United. 7. United is an interstate motor carrier of household goods that has been granted authority by the Surface Transportation Board of the Federal Highway Administration of the U.S. Department of Transportation (formerly the Interstate Commerce Commission) to conduct interstate transportation of household goods. A true and correct copy of United's interstate transportation certificate is attached hereto as Exhibit "1 ." 8. United sets the amount and terms of transportation charges in its published tariff, which is approved by the Surface Transportation Board. The Bill of Lading, which forms the Contract for Carriage, specifically incorporates United's tariff provisions into the Contract for Carriage. 9. In 2001, and specifically during July 2001, Household Goods Carders' Bureau Committee Tariff No. STB HGB 400-M was published with the Household Goods Carriers' Bureau Committee, as required by the Interstate Commerce Act, 49 U.S.C. § 13702, and was in full force and effect. United, as a motor common carder, participated in TariffNo. STB HGB 400-M. 10. In 2001, and specifically during July 2001, Household Goods Carders' Bureau Committee TariffNo. STB HGB 104-F was published by the Household Goods Carriers' Committee, as required by the Interstate Commerce Act, 49 U.S.C. § 13702, and was in full force and effect. TariffNo. STB HGB 104-F sets forth the exceptions United, as a motor -2- common cartier, had taken to the general provisions set forth in 'tariff No. STB HGB 400-M. United, as a motor cartier, participated in Tariff No. STB HGB 104-F. 11. TariffNo. STB HGB 400-M and Tariff No. STB HGB 104-F were the applicable tariffs for the interstate shipment of goods under Bill of Lading number 268-01124-1 as those tariffs were published with the Household Goods Carriers' Bureau Committee during the period of time that the shipment occurred. A true and correct copy of Bill of Lading number 268- 01124-1 is attached hereto as Exhibit "2." Subscribed ad Sworn to before me, the undersigned Notary this 5-~ day Public, o f (JO~Ac~ 2004. -3- EXHIBIT "1" I RwcfD- -f- 1988 SEP PM-26 (Rev. INTERSTATE COMMERCE COMMISSION CERTIFICATE Ho. MC~6723& Sub 92'.: UNITED VAN LINES, INC. Fenton, MO Thls Certificate is evidence of the carrier's engage in transportation as as a common carrier by authority to motor vehicle. This authority will be effective as long as the.carrier maintains compliance with t~e requirements pertaining -to insurance coverage for the protection of th& publlc (~9 CFR 10~3); the desigoation of agents upo. n whom process may be served (49 CFR 10~); and tariffs or schedules (49 CFR 1300 through 1310, revised). The c~rrler shall also render reasonably continuous and adequate service to the public. Failure to meet these conditions will constitute sufficient .grounds for the suspension, change, or revocation of this authority. .This authority is subject to any toms, conditions, and limltatiqn as are now, or emy later be, attached ~o this privilege. F~rre ular route authorl~ :mayAnYnot lrregu cate be tacked or J~ined wl~h your other irregular ~oute authority unles~ Joinder is speclffioally authorized. The transportation service to be performed the reverse sld~ of this document. By the Coem~ssion. is described On (SEAL) EATHI.EEN ~. EXNG ACTING SECRETARY NOTE: If there are any discrepancie~ regarding this document, please notify the Commission within 30 days. No. MC=67234 Sub 92* ?age 2 To operate as a co'~on carrier, by motor vehicle, in interstate or foreign commerce, over irregular routes, 'transporting: (A) Empty containers (except those made of paper) for household goods, between points in the United States (except Alaska and Hawaii)· . ' . erials and supplies used in the manufacture, repair, and ~qulp~nt, matr . I ~- -~=~-- -~ o~ "hird ~roviso" household ggods lnsta££atlon oz eleccronzc eNu&Fm="~ .-d t r as defined by the Comission at 49 CFR 1056.1(a)(3). between points Ln the United States (except Alaska and Hawaii, and General commodities (except classes A and B explosives, household goods, and cor~nodities in"bulk), between points in the United States (except Alaska and Hawa£i. Household ~oods and furniture and fixtures, between points in the United States, including Alaska and Hawaii. (¢) as defined in Practices of Motor Common Carriers ?f · 17 H.C.C. 467, over irregular.routes: ~cw~e~ po~mts and ~la~es in the United States, househ~: as oer~nea oy Commzssmon, between points in the~aiL. RESTRICTION: The op~r~tions authorized herein are.restricted to the handling of-traffic originating-at or destined to polnts beyond the State of Hawaii. (D) ' Transportation equipmen~,..between points in the United. Sta~es (except Hawaii) Any tacking righ~s.o~ irregular route authorities granted as a result of applications zi£eo on or before November 23, 1973, are not affected by this certificate if the tacking complies with 49 CFR 10&2.10 (b)(3). (Z) Used automobiles, in truckaway service, between points in the United States (except Alaska and Hawaii). NOTE: The authoricy in (B) cannot ~e severed by sale or otherwise from the authority in (C) above and the authority in (D) cannot be severed by sale or otherwise from the authority in (E) above. No. MC-67234 Sub 92 .Page 3 Th£s certificate cancels Certificates No. MC-67234 Subs 18, 24, ~3X, &4X. nad 89, issued January & 1979, December 8, 1980, July 30, 1981, · 'and (the r 2. 1981, and September 10, 1985, respectively, Novembe . · - - · o MC-6723~ Subs 1 5, and 33 underlying authority Ln Certzf~cates N · ' ' issued July 16, 1945,.April 26, 1967, and June 1, 1981) respectively. as acquired pursuant to HCF-19021. (L,'/~ DEPARTMENT OF TRANSPORTATION FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION DECISION No. MC-67234 UNITED VAN LINES, INC. FENTON, MO REENTITLED UNITED VAN I ,INES, I J C On Mar 22, 2000, applicant filed a request to have the FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION's records changed to reflect a name change. It is ordered: The FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION's records are amended to reflect the carrier's ~name as UNITED VAN I.INES, 1J.C. Within 30 days after this decision is served, the applicant must establish that it is in full compliance with the statute and the insurance regulations by having amended filings on prescribed FMCSA forms (BMC91 .or 91X or 82 for bodily injury and property damage liability, BMC 34 or 83 for cargo liability, or a BMC 84 or 85 for property broker secatrity and BOC-3 for designation of agents upon whom process may be served) submitted on its behalf. Copies of Form MCS-90 or other "certificates of insurance" are not acceptable evidence of insurance compliance. Insurance and BOC-3 filings should be sent to FEDERAL MOTOR CARRIgR SAFETY ADMINISTRATION, 400 Virginia Ave., SW, Suite 600, Washington, DC 20024. The applicant is notified that failure to comply with the terms of thin decision shall result in revocation of its operating rights registration, effective 30 days from the service date of this decision. To verify that the applicant is in full compliance, call (202) 358-7000 or visit out web site at: http:llfhwa-li.volpe.dot, govl. Any other questions regarding the action talcen should be directed to (202) 358-7028/7029. Decided: Mar 24, 2000 By the FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION: John F. Grimm, Director Information Systems & Data Analysis EXHIBIT "2" ~,.. ZGBpAUL. IC'S aOY]~ & 5Q~7383520 .f -., ,I~ORLDNID[ RELOCATION $[RV LLC ' ' FOX ROTHSCHILD LLP BY: Joshua Horn, Esquire and David T. Games, Esquire iDENTIFICATION NOs. 71799 and 85998 2000 MARKET STREET, TENTH FLOOR PHILADELPHIA, PA 19103-3291 (215) 299-2000 UNITED VAN LINES, LLC, Plaintiff, ANTONIO LOPEZ and MICHELLE LOPEZ, H/W, Defendants. ATTORNEYS FOR PLAIN'III-I' UNITED VAN LINES, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 03-3442 AFFIDAVIT OF GAIL ROLLER STATE OF MISSOURI : COUNTY OF JEFFERSON : SS. I, Gail Roller, being duly sworn, upon oath, deposes and states as follows: 2. 3. Coordinator. 4. I am a resident of the State of Missouri and over the age of majority. I have personal knowledge of the facts to which I testify herein. I am employed by United Van Lines, LLC ("United") as Household Goods Tariff I am authorized to take this affidavit on behalf of United. 5. As a Household Goods Tariff Coordinator, I am directly responsible to determine the applicability of tariff provisions, tariffinterpretation, and supervise and direct the calculation of tariff charges from bills of lading for interstate shipments of household goods conducted under authority granted to United by the Interstate Commerce Commission and/or the Department of Transportation during the time that shipment 268-01124-1 occurred. 6. 1 have personal first hand knowledge that tariffs STB HGB 400-M ("Tariff 400-M"), and STB HGB 104-F ("Tariff 104-F") were the applicable tariffs for the interstate shipment of household goods under Bill of Lading number 268-01124-1. Tar~iff 104-F contains the individual carriers exceptions to the general applications provisions of Tariff 400-M and is incorporated by reference in items H and J of Tariff400-M of the Household Goods Carriers' Bureau Committee. Tariff400-M and Tariff 104-F were published by the Household Goods Carriers' Bureau Committee during the period of time that the shipment of goods under Bill of Lading number 268-01124-1 occurred. A true and correct copy of Bill of Lading number 268-01124-1 is attached hereto as Exhibit "1." 7. Bill of Lading number 268-01124-1 incorporates Tariff 104-F and Tariff400-M. The reverse side of Bill of Lading number 268-01124-1 states in part: CONTRACT TERMS AND CONDITIONS OF UNIFORM HOUSEHOLD GOODS BILL OF LADING NOTICE OF AVAILABILITY OF PUBLISHED TARIFF Carrier publishes tariffs which set forth the terms, conditions and prices for the transportation services it provides. The applicable tariff provisions are incorporated herein by reference. Incorporated provisions include, but are not limited to: (1) Establishing the limitation of carriers liability, the principle features of which are described in the Valuation section of this Bill of Lading; (2) Setting the time period for filing claims, the principle features of which are described in Section 6 herenf; and (3) Reserving the carrier's right to assess additional charges for additional services -2- performed and, on non-binding estimates, to base .charges on the exact weight of the goods transported. For more information, please see the terms and conditions printed herein and in the carrier's booklets "Your Rights and Responsibilities When You Move" and "Mover's Valuation Brochure." The tariff is available fix inspection at the offices of carrier or, on request, carder will furnish a copy of any tariff provision containing carder's rotes, rules or charges governing the shipment and is also available for inspection at the offices of the Household Goods Carriers' Bureau Committee/American Moving and Storage Association, 1611 Duke Street, Alexandria, VA 22314. Carrier's currently effective applicable tariffs, all inventories prepared in conjunction with this Bill of Lading, any applicable National Account Contract Agreements and the Estimate/Order for Service prepared in advance of shipment are hereby incorporated by reference. These documents, together with this Bill of Lading, constitute the contractual documents governing shipper's move, and include but are not limited to the terms and conditions set forth below. 8. I have personally reviewed Bill of Lading number 268-01124-1 and tariffs 400-M and 104-F of the Household Goods Carders' Bureau Committee. Upon my review and audit of the Bill of Lading and the applicable tariff provisions, tariffcharges of $5,841.98 accrued under Bill of Lading number 268-01124-1 for the moving services provided to Defendants. 9. Bill of Lading number 268-01124-1 contains identical language to other bills of lading used by United in the interstate transportation of goods. ~lee blank bill of lading, a true and correct copy of which is attached hereto as Exhibit "2." Subscribed ad Sworn to before me, the undersigned Notary ,, Public, this O~-4hday of 0~jOAcL 2004. blic~ · JANET S. SAALE Notary Public - Notary Seal STATE OF MISSOURI Jefferson County My Commission Expires July 18, 2006 -3- ail Roller EXHIBIT "1" EXHIBIT "2" CONTF~CT TERMS and CONDITIONS of UNIFORM HOUSEHOLD GOODS BILL of LADING UNITED VAN LINES, LLC, Plaintiff ANTONIO LOPEZ and MICHELE LOPEZ, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION' - LAW : : NO. 2003 - 3442 _. ANSWERS AND OBJECTIONS OF DEFENDANTS TO THE FIRST REQUEST FOR ADMISSIONS OF PLAINTIFF TO DEFENDANTS Defendants by and through their attorney, John H. Broujos of Broujos & Gilroy, P.C., hereby submit the following answers and objections to First Request for Admissions of Plaintiff to Defendants: GENERAL OBJECTIONS 1. Defendants object to the instructions and definitions set forth in United's Request for Admissions to the extent that they exceed the scope of request for admissions imposed by the Pennsylvania Rules of Civil Procedure. Defendants will only respond to United's admission requests within the limits set forth in the Pennsylvania Rules of Civil Procedure. 2. Defendants object to United's admission request to the extent that they call for proprietary and/or confidential business information. Defendants will only consider producing proprietary and/or confidential information responsive to these admission requests upon the parties entering into an agreement governing confidentiality. 3. Defendants object to United's admission requests on the basis that United seeks documents and/or information which is already in the possession of United. Without waiving the objections set forth above, Defendants set forth the following answers to United's Request for Admissions: I. ANSWERS TO FIRST REQUEST FOR ADMISSIONS REOUEST FOR ADMISSION NO. 1 Mr. Lopez signed a bill of lading (Bill of Lading) for United to move Defendants' property from 285 Fairview Drive, Carlisle, Pennsylvania 17013 to 4716 Lakewood Drive, Metairie, Louisiana 70002. ANSWER: Admitted that Defendant Antonio Lopez, Jr. signed the Bill of Lading set forth as Exhibit A in PlaintiWs Request for Admissions. RE(~UEST FOR ADMISSION NO. 2 Mr. Lopez signed the Bill of Lading on behalf of Defendants. ANSWER: Admitted. Exhibit A in Plaintiff's Request for Admissions purports to constitute a copy of the bill of lading. REQUEST FOR ADMISSION NO. 3 A true and correct copy of the Bill of Lading that was signed by Mr. Lopez is attached hereto as Exhibit A. ANSWER: Denied. Defendants do not know Exhibit A to be a "true and correct copy of the Bill of Lading." There are no references to Cost of Containers and Packing and Unpacking Services, Containers, Schedules and other items. REQUEST FOR ADMISSION NO. 4 Defendants provided goods to United for shipment from 285 Fairview Drive, Carlisle, Pennsylvania 17013 to 4716 Lakewood Drive, Metairie, Louisiana 70002. ANSWER: Admitted REQUEST FOR ADMISSION NO. 5 United moved Defendants' goods from 285 Fairview Drive, Carlisle, Pennsylvania 17013 to 4716 Lakewood £~ve, Mei~irie, Louisiana 70002. ANSWER: Admitted REQUEST FOR ADMISSION NO. 6 United delivered Defendants' goods to Defendants at 4716 Lakewood Drive, Metairie, Louisiana 70002. ANSWER: Admitted REQUEST FOR ADMISSION NO. 7 Defendants received an invoice from United dated August 1, 2001 in the mount of $5,800.99. ANSWER: Denied. No document was enclosed to identify a specific invoice, as was done in Request 3, to which Defendants can intelligibly reply. REQUEST FOR ADMISSION NO. 8 The August 1, 2001 invoice from United represents United's total moving charges for Defendants' move. ANSWER: Denied. No August 1, 2000 invoice was enclosed.. Defendants have no way of knowing what United's total moving charges were for Defendants' move, since Defendants paid Worldwide Relocation Services, LLC (Worldwide) $7,218.93 which included costs charged to Defendants. REQUEST FOR ADMISSION NO. 9 United's August 1,2001 invoice, which represents the charges for the transportation of Defendants' household goods, is based upon United's published Tariff. ANSWER: Denied that the charges are based upon United's published Tariff. Defendants have no knowledge'of such Tariff. United's purported published Tariffis a matter for proof at trial of this case and is not set forth in Plaintiff's First Request for Admissions. REQUEST FOR ADMISSION NO. 10 Defendants have not paid United for any of the services reflected in the August 1, 2001 invoice. ANSWER: Denied. On the contrary, Defendants have paid United for services by payment of $7,218.93 to Worldwide, as more fully set forth in Defendants' Answer With New Matter and Countemlaim. Worldwide was agent or intermediary for Plaintiff for collection of payment for services from Defendants for delivery to the principal United. In accordance with the custom and procedure of United in its relationship to Worldwide, collection of payment for services was received by Worldwide for further delivery to Plaintiff. REQUEST FOR ADMISSION NO. 1 ! Defendants have not paid any money to United for the moving services that United provided to Defendants. ANSWER: Denied. On the contrary, Defendants did pay United by payment to Worldwide as set forth in No. l0 above in accordance with United's arrangement with Worldwide. REQUEST FOR ADMISSION NO. 12 Defendants never provided United with notice that they allegedly provided payment for United's services to a third-party. ANSWER: Denied. United falls to indicate any time span on the issue of notice. United had a standing arrangement with Worldwide for collection by Worldwide of the payment of services to Defendants whereby Worldwide would collect the paymem and forward the payment to United, as payment in full for services provided. There was no duty upon Defendants to provide United with notice in advance of payment to Worldwide, since United and Worldwide controlled the entire process; United knew that Worldwide was collecting its fee. Nor did United or Worldwide give notice to Defendants of any statutory provision allegedly imposing the obligation to pay twice for the service in the event of bankruptcy or failure of either Worldwide or United to pay. In addition, United itself sent a letter with approximate date of May 28, 2002 to Michele Lopez, Defendant, complaining that payment for their relocation "has not been remitted by Worldwide Location Serv, LLC." (Defendants' Exhibit A). United admits that Worldwide was collecting for United. In addition, on October 17, 2002, United sent a letter (Defendants' Exhibit B) to Worldwide and Defendants inferring that the payment of $5,800.99 for services was in fact to be collected by Worldwide, even though United attempted to have the payment, that it knew would be paid to Worldwide and in fact was; made to Worldwide, paid again by Defendants according to an alleged statutory requirement, which is an issue in this case. By this Answer, Defendants are not admitting, and in fact deny, that there is a statuto~ requirement for liability of Defendants to both Worldwide and United, under these cimumstances. J4°~' B °~~e~Attt°rney ~,~efendants Carlisle, PA 17013 717/243-45741; FAX 243-8227 PaBar 06268 Date: January 7, 2004 ATTORNEY VERIFICATION I, JOHN H. BROUJOS, ESQUIRE, hereby verify that I am the attomey of record for Defendants Antonio Lopez and Michele Lopez; that I am authorized to take this verification on their behalf pursuant to Pa. R.C.P. 1024(c) because Defendants are outside of the jurisdiction of the Court and their verification cannot be obtained within the timeframe allowed for filing this pleading; and that based upon my review of the material documents in this case and my reasonable investigation, the facts contained in the foregoing complaint are tree and correct to the best of my knowledge, information, and belief. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authorities. Date: January 7, 2004 UNITED VAN LINES, LLC, Plaintiff ¥. ANTONIO LOPEZ and MICHELE LOPEZ, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL DIVISION - LAW : : NO. 2003 - 3442 CERTIFICAiE OF SERVICE I, John H. Broujos, Esquire, hereby certify that I have served a true and correct copy of the foregoing Answers and Objections of Defendants to thc First Request for Admissions of Plaintiffs on the following person and at the following address by United States First C, la,ss Mail on January 7, 2004 to: ' David T. Games, Esquire Fox Rothschild, LLP 2000 Market Street, l0th Floor Philadelphia, PA 17103-3291 Joh~H.IBroujos, Esquire No. 6268 Atton~ for ~)efendants BROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, Pennsylvania 17013 (717) 243-4574 (717) 243-8227 FAX United Van Lines One United Drive Fenton, MO 63026 Invoice Number: 0268011241-01 Invoice Date: 08-01-01 Invoice Amount: $ 5,800.99 Invoice Balance: $ 5,800.99 Michelle Lopez -4716 La~e~ood Drive Metairie, LA 70002 Dear Michelle: This letter is to notify you of your joint liability to United Van Lines in the amount of $5,800.99. Payment for your relocation has not been remitted by WORLDWIDE RELOCATION SERV LLC. Our contract (Estimate for Service and Bill of Lading) holds both the company and you, the consignee/consignor, liable for payment. The Bill of Lading states, in part, "If credit is extended by the carrier by agreeing to bill an employer or other parties, in the event that any or all charges are not paid, the owner of the goods and/or beneficiary of all charges remains primarily liable for payment". Additionally, section 3 of the Uniform Household Goods Bill of Lading states in part, "The shipper, upon tender of the shipment to the carrier and the consignee, upon acceptance of delivery of shipment from the carrier, shall be liable, jointly and severally, for all unpaid charges". Any other arrangement for payment is strictly between you and WORLDWIDE RELOCATION SERV LLC. Ifyou have any questions as to why the invoice has not been paid, please contact WORLDWIDE RELOCATION SERV LLC. We would like to amicably resolve this matter, however, we are compelled to advice you that if payment in full is not remitted by the close of business June 21, 2002 we will have no alternative than to take whatever action deemed necessary. Sincerely, N~ncy B~ad f ~ A/R Analyst 636-349-3652 cc: WORLDWIDE. RELOCATION SERV. LLC .......... DEFANDANTS' EXHIBIT A UNITED. Van Lines October 17, 2002 Worldwide Relocation Services, LLC 2321 N. Hullen, Ste. A Metairie, LA 70001 Antonio & Michcllc Lopez 4716 Lakcwood Drive Mctairie, LA 70002 RE: United Van Lines, LLC Order No.: 268-1124-1 Total Outstanding Transportation Charges: $5,800.99 Dear Sir and Mr. & Mm. Lopez: Please be advised your account for outstanding tariff transl>ortation charges in the amount of $5,800.99 has been assigned to me for review and handling. Aa such, please direct all furore communications to me. Our review of the records of thc Lopez' interstate move reveals that you axe currently indebted to United Van Lines, LLC ("United"), jointly and severally, in the amount of $5,800.99 for outstanding tariff transportation charges. In order to properly address your obligation to pay all outstanding published tariff transportation charges, the following is a review of the applicable federal law. OUTSTANDI~IG TRANSPORTATION CHARGES Since the Lopez' relocation involved thc transport of household goods through interstate commerce, thc rights, obligations and liability of thc carrier 0_lnited) and shipper (the Lopezes) are exclusively governed by federal law. Specifically, the Interstate Commerce Act ("the Act") controls the shipper's obligation to pay transportation charges. 49 U.S.C. §§ 13702, 13706 and 13707. Title 49 U.S.C. §§ 13702, 13706 and 13707 authorize United to set thc amount and terms of transportation charges in its published tariff, which is approved by the Surface Transportation Board of the Depamment of Transportation (formerly the Interstate Commerce Commission). The Bill of Lading, which is the contract between the shippers and the carrier, specifically DEFENDANTS' EXHIBIT B Worldwide RelocatiordLopez October 17, 2002 Page 2 incorporates United's tariff provisions into the contract. United is specifically prohibited frOm providing transportation services at any rate other than the published tariff rate. See 49 U.S.C. § 13702 (a). A shippers' ignorance of the correct tariff rote is irrelevant and is no defense to a claim by an interstate carrier against the shippers to collect tariff charges. Aero T~nc. v.. Regal Tube Co., 594 F.2d 619, 621 (7a' Cir. 1979); Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 126 (1990); Keogh v. Chicago & N.W.R. Co., 260 U.S. 156, 163 (1922). The United States Supreme Court has held, without exception, that a carrier subject to the Interstate Commeme Act, must collect, and shippers must pay, all lawful tariff charges set forth in applicable tariffs which have the full force and effect of federal law. Louisville & N. R.Co. v. Maxwell, 237 U.S. 94 (1915); Southern Pacific Transp. Co. v. Commercial Metals Co., 456 U.S. 336 (1982); Maislin, .supra. A long series of judicial decisions finding the shippers liable for tariff transportation charges, regardless of contract and equitable defenses, has become known as the "filed rate doctrine". The filed rate doctrine is so absolute that a claim for relief from the filed rote cannot be predicated on a carrier's alleged fraudulent or intentional misquotation of rates. Consolidated Freightways Corp. v. Terry Tuck, Inc., 612 F.2d 465 (9'a Cir.), ~ert denied, 447 U.S. 907 (1980); Thurston Motor Lines, Inc. v. lordan K. Rand, Ltd ~ 460 U.S. 533 (1983). Both shippers and carrier are presumed to know the law and to have understood that the tariff rate charged could lawfully be the only charge fixed by law. 'The rights of the shippers and carder cannot be varied or enlarged by the contract or tort of the carrier. White v. United Van Lines, Inc., 758 F. Supp 1240 0N'.D. BI. 1991). When an employer agrees to pay the transportation charges for its employee, beth parties can be held jointly liable for the payment of these charges. This information is provided on the Bill of Lading fei' the interstate move. Specifically, Section 3 on the back of the Bill of Lading states: ' The shipper, (individual or commercial) and consignor upon tender of the shipment to carrier, and the consignee, upon acceptance of delivery of shipment from carrier, shall be liable, jointly and severally, for all unpaid charges payable on account of a shipment in accordance with applicable tariffs including, but not limited to, sums advanced or disbursed by a carrier on account of such shipment. The extension of credit to either shipper or consignee for such unpaid charges shall not thereby discharge the obligafion of th9 other party to pay such charges in the event the party to whom credit has been extended shall fail to pay such charges. (emphasis added) The front of the Bill of Lading also states: If credit is extended by the carrier by agreeing to bill an employer or other party, and in the event that any or all of the charges are not paid, the Owner of the goods and/or beneficiary of the services acknowledges he remains primarily liable for payment. (emphasis added) Worldwide R ¢loca~iox~Lopez Oc~obc£ 17. 2002 Page 3 Thc federal courts that have considered the question of joint and several liability under a Bill of Lading providing for consignee liability have unanimously concluded that the employer and employee are jointly and severally liable for all outstanding transportation charges. See United Van Lines, Inc. v. Zak, 861 F.Supp. 61, 63 (S.D. I11. 1994); United Van Lines, Inc. v. paul Giddens, No. 90-419-B (IVI[.D. La. 1991); Banton v. Schroeder Moving Sys., Inc., 827 F.Supp. 1388 0g.D. Wis. 1992); United Van Lines, Inc. v. McDowell, No. A-92-CA-285 (W.D. Tex. 1993); United Van Lines, Inc. v. Hellman, 949 F.Supp. 126 (E.D.N.Y. 1996); United Van Lines, Inc. v. Hombur.~er, 932 F. Supp. 139 (W.D.N.C. 1996). As stated above, your joint obligation to pay the published tariff transportation charges is exclusively governed by federal law. 49 U.S.C. §§ 13702, 13706, 13707 and 14706. United must comply with its statutory and tariff obligations to collect all outstanding tariff transportation charge, ffnecessary, we will pursue all available remedies under federal law to collect published tariff rate charges without further notice. Accordingly, we request you forward a check in the amount of $5,800.99, made payable to "United Van Lines, I_.LC" within fourteen (14) days of the date of this letter. Feel free to contact me if you have any questions regarding this matter. Sincerely, (636) 349-2742 ATK/keg cc: Ianice'Coleman FOX ROTHSCHILD LLP BY: Joshua Horn, Esquire and David T. Games, Esquire IDENTIFICATION NOs. 71799 and 85998 2000 MARKET STREET, TENTH FLOOR PHILADELPHIA, PA 19103-3291 (215) 299-2000 UNITED VAN LINES, LLC, Plaintiff, ANTONIO LOPEZ and MICHELLE LOPEZ, H/W, Defendants. ATTORNEYs FOR PLAINTIFF UNITED VAN LINES, LLC COURT OF COMMON PLEAS CU3/IBERLAND COUNTY NO. 03-3442 AFFIDAVIT OF DENNIS FICKINGER STATE OF MISSOURI : : COUNTY OF JEFFERSON : SS. I, Dennis Fickinger, being duly sworn, upon oath, deposes and states as follows: 2. 3. Collections. I am a resident of the State of Missouri and over the age of majority. I have personal knowledge of the facts to which I testify herein. I am employed by United Van Lines, LLC ("United") as Supervisor of Credit and 4. I am authorized to take this affidavit on behalf of United. 5. As Supervisor of Credit and Collections, I am directly responsible for the collection of payment for United's services that were rendered in connection with Bill of Lading number 268-01124-1. 6. 1 have first hand knowledge of the accounts payable history for Bill of Lading number 268-01124-1. 7. United maintained an account for Antonio Lopez and Michelle Lopez, which reflects the total amount of moving charges incurred under Bill of Lading number 268-01124-1 pursuant to United's published tariffs. 8. On or about August 1, 2001, United sent an invoice in the amount of $5,800.99 to Defendants for payment of the moving services that United provided to Defendants in connection with Bill of Lading number 268-01124-1. 9. The August 1,2001 invoice was based upon United's duly published tariffs STB HGB 400-M and STB HGB 104-F, which are incorporated by reference into Bill of Lading number 268-01124-1. 10. To date, no payment has been received for United"s moving services that were provided in connection with Bill of Lading number 268-01124-1. 11. Nothing in Bill of Lading number 268-01124-1 provides that Worldwide Relocation Services ever served as an agent for United or possessed authority to receive payment for United's moving charges that were incurred in connection with Bill of Lading number 268- 01124-1. Subscribed ad Sworn to before me, the undersigned Notary , Public, this 5/~day of¢~_c~ 2004. Public' ~ Notsn/Public - Not~y ,geld STATE OF MI~8OUP, I deifemon County My ~nlsslon rcxpire~ july 18, ;0o6 Dennis Fickinb~{ ' - ' /// -3- CERTIFICATE OF SERVICE I, DAVID T. GARNES, ESQUIRE, hereby certify that on the 12th day of April 2004, a tree and correct copy of the motion for summary judgment of plaintiff, United Van Lines, LLC, and a role to show cause why plaintiff's motion should not be granted, were :served upon the following individual, via United States first class mail, postage prepaid, and addressed as follows: John H. Broujos, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Attomey for Defendants Antonio Lopez and Michelle Lopez DA'~ID . PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted ~ d~plicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pl-~e ] i~t the within matter for the ne~t Argumnent Court. CAPTION OF CASE (e~lei~e ~tio~ ~m~st be stated i~ f~,11) United Van Lines, LLC, Antonio Lopez and Michelle Lopez, H/W, (plaintiff) ( Deferment ) No. 03-3442 Civil August 2003 1. State matter to be argued (i.e., plaintiff's nDtio~ for new m,.~m], defendant's dm~er to cc~plaint, etc. ): Plaintiff's motion for summary judgment. Identify cour~el who will argue case: (a) for plaintiff: address: David T. Garnes, Esquire 2000 Market Street, Tenth Floor Philadelphia, PA 19103 (b) for defe~lmnt: John H. Broujos, Esquire ;u~r~ss: 4 North Hanover Street Carlisle, PA 17013 3. I will ~otif~ all M,~ies in writing within t~ da~s that thim ~e has been l inted for 4. Arg~nentCourt Date: June 9, 2004 At to~=y i"or UNITED VAN LINES, LLC, Plaintiff Vo ANTONIO LOPEZ and MICHELE LOPEZ, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION - LAW : NO. 2003 - 3442 DEFENDANTS, RESPONSE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF UNITED VAN LINES, LLC AND DEFENDANTS, NEW MATTER Defendants, Antonio and Michelle Lopez, husband and wife, by and through their attorneys Broujos & Gilroy, P.C., hereby answer and oppose the motion for summary judgment of Plaintiff against them, and aver as follows: Introduction 1. Admitted, according to Defendants' knowledge and belief. 2. Denied in part and Admitted in part. Admitted that a United Van Lines truck did move Defendants' goods from Carlisle, Pennsylvania to Metairie, Louisiana. Admitted that Plaintiff did invoice Defendants in the amount of $5,800.99. Denied thal the move of such goods and the invoicing of Defendants were conducted in accordance with the Bill of Lading, all documents incorporated by reference thereto, all other agreements related to the movement of Defendants' household goods from Pennsylvania to Louisiana, and with applicable laws and regulations. 3. Denied. Defendants assert that whether or not Defendanls must pay Plaintiff's moving charges is a question of fact and a matter of law. Defendants admit that a United Van Lines moving truck did move their household good from Carlisle, Pennsylvania to Metairie, Louisiana. Defendants deny that they have not paid for such services. In fact, Defendants did pre-pay in full for such services as agreed and understood by all parties, including Plaintiff, as shown on the Binding Estimate Cost of Service (See Defendants' Exhibit A, attached hereto) which was incorporated into the Bill of Lading. Defendants pre-paid for the shipping services by paying $7,218.93 prior to the end of June of 2001 to Worldwide as agreed. Plaintiff had full knowledge and understanding that this was the payment arrangement and thai! following completion of the shipping it would seek payment from Worldwide for its services. 4. Denied that any actions by Defendants fomed Plaintiff to commence these proceedings. Denied that there are no issues of material fact in dispute between the parties in this matter. Furthermore, Plaintiff would not be entitled to judgment as a matter of law based on the facts and exhibits presented by Plaintiff in its motion for summary judgment particularly when such facts must be looked at in a light most favorable to Defendants. Denied that Plaintiff is entitled to summary judgment on its claims against Defendants. 5. Denied that Plaintiff is entitled to summary judgment on Defendants' counterclaim. Since Plaintif~~ s motion for summary judgment on its own claims must fail for lack of its ability to show no material facts in dispute and that it is entitled to judgment in its favor as a matter of law, Defendants' counterclaim for attorney's fees is not untimely. Claims for attorney's fees are properly made in the original pleadings, therefore, Defendants have submitted such claim for fees in a timely and appropriate manner. Procedural Background 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. Factual Bac~ 10. Admitted. 11. Denied. Defendants assert that the Bill of Lading was first presented to them for their signatures on July 10, 2001. At no time prior to that date were the terms or conditions of the Bill of Lading discussed or copy of such presented to them to enable them to review the terms of such prior to the moving truck arriving to their home on the scheduled day of the move. Therefore, Defendants, having pre-paid for the arranged services from the United Van Lines truck that arrived at their home at 285 Fairview Drive, Carlisle, Pennsylvania on July 10, 2001, were forced to sign the Bill of Lading. Prior to such date several agreements were signed and exchanged between parties to this agreement, which are incorporated by reference by language in the Bill of Lading. One such agreement was the Binding Estimate Cost of Service which was executed on or about June 22, 2001 between Defendants and Worldwide Relocation Services, L.L.C. (hereinafter "Worldwide"), with the full knowledge, consent, and collaboration of Plaintiff: Plaintiff admits having a contractual relationship with Worldwide, entered into in April of 2001, whereby Plaintiff promoted this third party involvement by agreeing to provide services for a reduced rate in exchange for Worldwide finding it custoraers, such as the Defendants. (See Plaintiff's answer to interrogatory #13 at page 12 at Defendants' Exhibit B, Answers and Objections of United Van Lines, LLC to the First Set of Interrogatories of Defendants Antonio Lopez and Michelle Lopez, attached hereto). 12. Denied that Defendants were the consignor of their goods. Based upon the arrangement between the parties, Worldwide was the consignor of the goods shipped. The consignor or shipper of goods is the one who requests the carrier to perform the transportation service. The party who in fact requested Plaintiff to perform the transportation services in this matter was Worldwide. It was Worldwide who contacted Plaintiff, arranged for the shipping estimate between Plaintiff and Defendants, and set up all details of the move on behalf of the carrier Plaintiffs and consignee Defendants. Also indicative that Worldwide was and is the consignor in this matter is the fact that Plaintiff did expect payment from Worldwide. It is customary practice in the industry and under the applicable law that it is the consignor of the goods that is primarily liable for payment of the shipment tariffs. There was no nonrecourse clause executed by Worldwide, which meant that Worldwide also expected Plaintiff to seek payment from itself after the shipment had been delivered. There is no requirement that the actual consignor of the goods be a signatory to the bill of lading. A third party not named in the bill of lading can under the law be made liable by express or implied agreement or contract. See: Nashville, C. & St. L. Ry. Co. v. Gilliam 212 Ala 120, 101 So. 889 (1924), Erie R. Co. v. H. Rosenstein, Inc., 249 N. Y. 241,164 N. E. 37 (1928); and Atlantic Coast Line R. Co. v. Wannamaker Chemical C~, 216 S.C. 226, 57 S.E. 2d. 311 (1950). In this tri-party agreement, what role did Worldwide assume if it were not the consignor and agreed to pay, with sums received in advance from Defendants, in full for the shipment services to the carrier for the shipment services it arranged. 13. Admitted. 14. Admitted. However, this language does not create a factual or legal circumstance for judgment as a matter of law in favor of Plaintiff. Other material facts relevant to this matter exist and are also disputed and more material facts are being revealed through the yet uncompleted discovery process. Therefore, not only is Plaintiff not entitled to summary judgment, but its motion for summary judgment is untimely at best. 15. See Answer to Paragraph 14. 16. Admitted. In addition, no demand for payment for services rendered was made at this time. Defendants assert Plaintiff had full knowledge that Defendants had pre-paid for the services by paying Worldwide, a contractual agent and partner to United with regard to the Bill of Lading in question. The Defendants understood the arrangement to be that Worldwide would forward the amount owed to United out of the funds paid in advance by Defendants to Worldwide. At no point in time were the Defendants informed or given any indication that there was no contractual obligation on the part of Worldwide to pay Plaintiff, as Plaintiff now claims but fails to evidence. 17. Admitted. 18. Defendants have insufficient evidence of such assertion by Plaintiff to admit or deny. 19. Denied. Defendants in fact pre-paid for all moving services by Plaintiff when it paid $7,218.93 to Worldwide prior to the end of June of 2001. Plaintiff knew or should have known about the pre-payment for the carrier services and was negligent and fraudulent when it failed to mark the Bill of Lading as pre-paid. By law, it is the responsibility of the carrier to ensure that the bill of lading is correct in all respects. Plaintiff had a contractual relationship to gain additional shipper customers through recommendations from Worldwide. That is how Plaintiff came to be the carrier for Defendants move from Carlisle, Pennsylvania to Metairie, Louisiana. Following Defendants selection of Plaintiff as its carrier, on May 25, 2001 a fax was sent from Pau][k United Van Lines in Louisiana to Worldwide which was a draft of an estimate of order for the Defendants' move. (See Defendants' Exhibit A). Then on June 6, 2001 Worldwide issued Defendants the Binding Estimate Cost of Service contract which stated that the cost of the move was paid in full. Payment in full was made before the end of the month of June of 2001. On June 19, 2001 Defendants received a letter of correspondence from Paulk, Plaintiff's agent in fact, confirming the dates of the move. Therefore, based on this correspondence between the parties involved in this transaction, Plaintiff was aware that payment in full to Worldwide was expected and had been made. Plaintiff had a duty to mark the Bill of Lading prepaid, since it had knowledge that its contractual partner and agent which was responsible for bringing the business of the Defendants to it, had been paid in full for the services it was preparing to provide. United is NOT entitled to summary |ud~,ment against Defendants on United's claim fo, joint and several liability under the Bill of Ladin? 20. Denied that Plaintiff is entitled to summary judgment against Defendants on its claim for joint and several liability under the Bill of Lading. First, the law plainly makes exceptions in cases where to force payment twice by the same party is clearly unjust. Secondly, these cases are determined by detailed analysis of the factual matters of each case. Plaintiff cannot establish through the pleadings and discovery material submitted with its motion for summary judgment that it is entitled to judgment as a matter of law on facts it presents. The law requires first that the material facts relevant to the matter be undisputed. In this case they not only are disputed, but also to date are incomplete. Discovery has not yet been completed and there remains numerous material questions of fact needing answered and doc aments needing produced prior to all of the relevant material facts being available for analysis with regard to this motion. For example, with regard to the contract existing between Worldwide and Plaintiff at the time of the Binding Estimate Cost of Service and Bill of Lading being entered into by Defendants, what exact arrangements and understandings were there between Worldwide and Plaintiff, regardless of contractual obligations. What was the standard industry practice regarding payments made to consignors such as Worldwide and forwarding such payments to the carriers? What was the standard practice between United and Worldwide? Had they ha,d any other contracts with Worldwide in the past upon which analysis of their relations during those contracts could shed light on the expectations of the parties and knowledge of parties with regard to this matter effecting Defendants? Defendants are entitled to inspect the contract that existed between Worldwide and Plaintiff. All such inquiries need satisfied prior to a summary judgment because the law states that in certain cases, despite the clear language on a Bill of Lading, a carrier can be estopped from collecting its tariff if such collection would be inequitable. See: Interstate Motor _Freight System, Inc. v. Wright Brokerage Co. (1976, Mo App) 539 SW2d 764; EF Operating _Corp. v. American Buildings 993 F.2d 1046 (3d Cir. 1993); Missouri Pacific Railroad Company v. National Milling Company, Inc. 409 F.2d 882 (3d Cir. 1969). In the Missouri case the court ruled on the pleadings in favor of denying payment of freight charges to the carrier because the undisputed facts were that the bill of lading was marked "prepaid", which in fact directed the consignee to reimburse the consignor in that case for the freight charges. The consignor in Missouri. like in this matter, was insolvent, and did not in fact p~y the carrier. However, in this matter, whether or not there was knowledge and agreement regarding the payment arrangement, whether or not the bill of lading was marked prepaid, and other material facts, are at this time highly disputed between the parties. Therefore, at best, the summary judgment motion by Plaintiff is tmtimely. The m°ving party has the burden of proving that no genuine issue of material fact is disputed and all doubts as to the existence of genuine issues of material facts are to be resolved against granting of summary judgment. Shoats v. Commissioner, Pennsylvania Dept. of Corrections, 591 A.2d 326, 139 Pa. Cmwlth 607 (1991). Additionally, the summary judgment motion must fail because even based on the incomplete facts thus far, when viewed in the light most favorable to the non-moving party, the Defendants, the facts show that numerous cimumstances allowing for an equitable estoppel ruling exist. In this matter, Defendants are innocent consignee's who paid Worldwide, the consignor in fact in this matter, in full and with the knowledge of Plaintiff the cartier, prior to the day of the bill of lading being executed. Plaintiff had a duty to mark the bill of lading itself prepaid, and was negligent and fraudulent in failing to do so. ltowever the Plaintiff's own bill of lading states that the "Estimate/Order for Service prepared in advance of shipment" is incorporated by reference (See Plaintiff's Exhibit E, at page 3). The Binding Estimate Cost of Service, which is clearly marked "Paid in Full", was the only estimate and order for service prepared. Cases such as EF OCerating judicially confirm that there is no legislative intent that the Transportation Act be used to force innocent consignees such as the Defendants in this matter to pay twice for the same carrier services. 21. Denied. Whether or not an individual is jointly and severally liable under a contract is not solely determined by the four comers of a contract, in this case the Bill of Lading, but also prior dealings, and in this case, other documents that must be considered to be part of the contract existing between Plaintiff and Defendants due to the agreements and relations between all parties to the shipment of their household goods. In addition, whether or not a party to a contract is jointly and severally liable is not only a factual question, but also one of law. Plaintiff cannot establish that this material issue of fact is not in dispute, nor has it established that under the law it is entitled to summary judgment. 22. Admitted that Defendants did sign the Bill of Lading. By way of further explanation, as aforementioned, Defendants had no choice but to sign the Bill of Lading. The Bill of Lading was presented to them on the scheduled day of their move from 'Carlisle, Pennsylvania to Metairie, Louisiana. Defendants had pre-paid in full for the cra'tier services. The Bill of Lading should not be considered an enforceable contract. Defendants label such as not having been bargained at arms-length, at being presented to them in a deceptive and fraudulent manner, and at being an adhesion contract. Bills of lading are in fact considered by courts of law to be adhesion contracts and therefore in disputes such as this shoukt be strictly construed against the carrier. See: Interocean S.S. Corp. v. New Orleans Cold Storage & Warehouse Co., Ltd., 865 F.2d 699, 703 (5th Cir. 1989): Allied Chem. Int'l Corp. v. Companhia de Navegacao Lloyd Brasileiro, 775 F.2d 476, 482 (2d. Cir. 1985). Therefore, it is denied that only because the bill of lading designates that the Defendants were the shippers and consignees that they were in fact such. Defendants admit only that they were in fact the consignees of their household goods. Regardless, this designation does not as a matter of law require them to pay twice for the same service. Judicial law creates exceptions in cases where it would be against public policy, equity, and the intent of the legislature in its creation of the Interstate Transportation Code to force an innocent shipper and consignee to pay twice for the same service. See: Interstate Motor Freight System, Inc. v. Wright Brokerage Co. (1976, Mo App) 539 SW2d 764; EF Operating Corp. v. American Buildings 993 F.2d 1046 (3d Cir. 1993); Missouri Pacific Railroad Company v. National Milling Company, Inc. 409 F.2d 882 (3d Cir. 1969). 23. Denied. A consignor is one who requests and requires the cartier to perform the transportation service. Worldwide is the party in this matter who requested Plaintiffto perform the transportation service. Worldwide contacted Plaintiff, arranged all details such as estimates on weight, distance, dates for shipment, and other matters relating to the shipment services. It was Worldwide who provided the goods to Plaintiff for shipment, particularly via its contract with Plaintiffto do so in exchange for reduced rates. But for Worldwide, Plaintiff would not have even been the carrier of Defendants' household goods. Additionally, see allegations made in paragraph 12. 24. Denied that Defendants were the consignors of their goods. Denied that Defendants are absolutely jointly and severally liable to Plaintiff for payment artder the terms of the Bill of Lading and other relevant facts and agreements related to the movement of their household goods from Carlisle, Pennsylvania to Metairie, Louisiana. Under the theory of joint and several liability Plaintiff has not and cannot satisfy its legal burden to show all relevant and material facts are undisputed between the parties and that viewing those undisputed facts in a light most favorable to Defendants that Plaintiff is entitled to judgment as a matter of law in its favor. Plaintiff's motion for summary judgment based on joint and several liability under the bill of lading must be denied. United is NOT entitled to summary judgment against Dei%ndants on United's claim f~. breach of an interstate transportation contract 25. Denied that Plaintiff is entitled to summary judgment against Defendants based on the theory of breach of contract. The Bill of Lading and its method of execution with Defendants violated all ethical rules relating to contractual bargaining. The Defendants were misled regarding relations between parties to the Bill of Lading and other essential agreements and contracts connected to the preparation for the movement of their household goods from Carlisle, Pennsylvania to Metairie, Louisiana. There was fraud and misrepresentation of material facts in the presentation of the Bill of Lading, before, during, and after its execution. There was no at-arms-length bargaining regarding the terms of the Bill of Lading. The Defendants, had they even been aware of the true facts and possible consequences when they signed the Bill of Lading, would likely not have signed the Bill of Lading at all. If they had signed, it would only have been out of duress and the fact that they had no other choice in the matter. The Bill of Lading was and remains an adhesion contract which when used in the manner being attempted in this case violates public policy and the intent of the Interstate Transportation Code. There are numerous questions surrounding what documents formed the entire contract, what legal entities were actual parties to the contract, and the validity of the assent of Defendants to the bill of lading. Summary judgment is untimely and improper due to disputed material facts existing surrounding these issues. 26. Denied. The bill of lading itself does not form the entire contract existing between the Plaintiff and Defendants. In addition, there exists a third party to the agreements existing between Plaintiff and Defendants whose actions and inactions have given cause to the matter now presented between Plaintiff and Defendants. Denied that Defendants failed to perform any duty under the terms and conditions of the agreements between 'the parties made regarding the movement of Defendants' household goods from Pennsylvania to Louisiana. 27. Denied. Admitted that the Bill of Lading is a part of a contract that existed between Plaintiff and Defendants. The Bill of Lading was an adhesion contract, the services for which Defendants had already paid and would have been denied that day had its execution been refused. Denied that the mere existence ora contract (in this matter Plaintiff is asserting the existence of a partial contract at that) creates an absolute right of recovery to one party or another without examination of the facts and law as it applies lo that contract. 28. Denied that Section three of the Bill of Lading provides that Defendants were the shipper, consignee, and consignor or their household goods. Denied that Defendants have an absolute obligation to pay for the same services, shipment of their household goods, twice, regardless of language contained this adhesion contract. 29. Denied. There are judicially created exceptions to the "filed rate doctrine". See argument and cases cited in paragraphs 20 and 22 above. These exceptions were carved for the exact reason that Defendants should not be required to pay twice for the same singular service in this case. Defendants made agreements with Worldwide and Plaintiff to have their household goods shipped from Carlisle, Pennsylvania to Metairie, Louisiana. All parties, including Plaintiff, to these agreements were aware of the arranged payment schedule and from whom each party was to receive their payment for services and that Defendants had pre-paid for the services in full. Plaintiff in fact had an existing contract with Worldwide to increase its business and encourage shippers such as Defendants to pay a third party such as Worldwide, the consignor, to arrange for the shipment of their goods by Plaintiff. Plaintiff not only was aware that Worldwide acted as the liaison, estimator, coordinator, and consignor for the shipment, but contracted with Worldwide for this reason. The exact nature of the relations between Worldwide and Plaintiff were not only concealed but misrepresented to Defendants. Essential facts to the transaction and contracts entered into were concealed and misrepresented to Defendants. Finally, an adhesion contract, the Bill of Lading, was presented for signature to Defendants. The Defendants paid in full for the services they received prior to the services being rendered. They are the only innocent parties to this transaction. Public policy and judicial law has created an exception to the "filed rate doctrine" for the very reason of protecting individuals such as Defendants. Defendants, under the judicially created equitable estoppel doctrine that has been created to the filed rate doctrine and the facts of this matter, cannot be held to pay twice for the same shipment of their household goods when Plaintiff knew or should have known that Defendants had pre-paid in full for the services to Worldwide, a contractual agent who brought to Plaintiff the business of Defendants. In addition, Plaintiff knew or should have known that the shipping services were pre-paid and had a duty to mark the Bill of Lading as pre- paid since the Binding Cost of Estimate, the only estimate given, was marked "Paid in Full". 30. Admitted. 31. Admitted. 32. Denied. Denied that Plaintiff has suffered damages due to any actions or omissions on the part of Defendants. Plaintiff has suffered damages due to the actions and omissions of itself and its contractual relations with Worldwide and the actions and omissions of Worldwide. Under the theory of contractual breach, Plaintiff has not and cannot satisfy its legal burden to show all relevant and material facts are undisputed between the parties and that viewing those undisputed facts in a light most favorable to Defendants that Plaintiff is entitled to judgment as a matter of law in its favor. Plaintiff's motion for summary judgment based on contractual breach by Defendants must be denied. United is NOT entitled to summary judgment against Defendants on United's claim fo~ un,iust enrichment 33. Denied. Under the theory of unjust enrichment, which is strictly an equitable doctrine, the party seeking to recover against another must establish that such person was unjustly enrichedat his or her expense. In this matter Defendants were in no matter unjustly enriched, since they have in fact paid out $7,218.93 for the movement of their household goods from Pennsylvania to Louisiana. This payment was made to Worldwide, the entity that Plaintiff knew was to receive such payment. It is evidenced that Plaintiff knew Worldwide was to receive this payment because that is in fact whom Plaintiff billed for its services. It was only after Plaintiff was informed that Worldwide was insolvent that Plaintiff sought payment from Defendants. Worldwide filed bankruptcy and held its first debtors meeting on May 2, 2002. It was not until May 28, 2002 that United first attempted to bill Defendants for any amount regarding the shipping services performed nearly one year prior. No notice was given at all from either Worldwide or United regarding the insolvency status or bankruptcy proceedings of Worldwide. The invoice dated August 1,2001 was sent only to Worldwide and Plaintiff waited 10 months before informing Defendants there was a collection issue with regard to the funds. Plaintiff cannot now claim that Defendants were in any manner at fault for Plaintiff's inability to collect the funds from Worldwide when it did not even inform Defendants of the collection issues for such a lengthy period of time. Defendants at minimum should have been afforded an opportunity to have assisted in the attempt to collect the funds prior to the bankruptcy proceedings, and certainly should have been afforded an opportunity to participate as a creditor at the first creditors meeting. Plaintiff cannot be permitted to march into equity court with such unclean hands and seek assistance through an equitable remedy such as unjust enrichment when its actions have been far from fair treatment of the Defendants. In addition, the principles of unjust enrichment are inapplicable to agreements deliberately entered into by parties. Third National Bank & Trust Co. of Scranton v. Lehigh Val. Coal Co. 44 A.2d 571 (Pa. 1945). Defendants did not deliberately enter into the existing contractual agreement as alleged by Plaintiff (Defendants allege mistaken facts, fraud by Plaintiff in presentation of true facts and parties involved). On the contrary, Plaintiff had full knowledge and control over all terms of the contact and was surely aware of the possibility that Worldwide may for various reasons not make payment to it. Plaintiff also had knowledge and full control of the language of its own bill of lading and that at the time it was signed if Defendants had in fact paid for the carrier services in advance that if Worldwide defaulted that Plaintiff could and would attempt to force Defendants to pay for the carrier services twice. Therefore, at the time of the execution of the bill of lading Plaintiff had duty to inform Defendants specifically of this industry standard and that Defendants could or should take steps to prevent damage to themselves in the event of Worldwide defaulting. Plaintiff enters into equitable court with "unclean hands" and cannot now argue for entitlement to compensation based on the equitable remedy of unjust enrichment. 34. Admitted that Plaintiff moved their household goods from Carlisle, Pennsylvania to Metairie, Louisiana. Denied that Plaintiff conferred a "benefit" upon Defendants since Defendants paid in full for these services as agreed upon and with approval by Plaintiff as evidenced by their attempts to collect payment from Worldwide. Defendants were in no manner unjustly enriched since they paid for the shipment service in full. 35. Admitted that Defendants accepted Plaintiff's moving services. However, had Defendants not been misled regarding the true facts and circumstances regarding the relations and existing agreements and obligations between the parties to the moving service (Defendants, Plaintiff, Paulk, and Worldwide) Defendants would not have accepted the moving services. Defendants accepted the moving services under a cloud of misrepresented facts and fraudulent circumstances. Had Plaintiffbeen honest regarding the Bill of Lading and actual relations between the parties prior to the presentation of the Bill of Lading Defendants would have acted in a manner that protected themselves and Plaintiff from the unjust enrichment of Worldwide. However, Plaintiff, who was the only party who had the knowledge and capability to protect both itself and Defendants from Worldwide, failed to act in a protective manner to either itself or Defendants. The hardship and damages Plaintiff has incurred was created by Plaintiff alone and its own contractual relations with Worldwide and is in no manner the fault of Defendants. 36. Denied that in this case it would be unconscionable for Defendants not to pay for Plaintiff's services. Denied that Defendants have no justification for not paying for Plaintiff's services. In fact it is unconscionable that Plaintiff even make :such an argument given the facts and circumstances of this case. Without being grossly redundant, Defendants innocently relied upon the representations of those who are the moving industry giants to arrange for the :shipment of their household goods from Carlisle, Pennsylvania to Metairie, Louisiana. Defendants paid in full for the services they were to receive to the party they agreed to pay, in the amount they agreed to pay. Plaintiff not only knew of the payment arrangements, but also had a contractual arrangement itself with Worldwide to create more business for itself in this manner. Defendants were quoted a price for shipment of their goods and they paid that price in full prior to the moving truck even arriving at their home. It is inequitable and outrageous to expect Defendants to simply happily pay for this service twice because Plaintiff could not then collect its money as it originally planned from the party it agreed it would collect from - Worldwide. For Plaintiff to now accuse Defendants of unconscionable behavior is outrageous and malicious. If a person went into a store and bought a red shirt, paying full price, and then left and a year later a sales clerk from that store came and said the shirt had to be paid for again because the clerk that the money was given to was fired for embezzling the money from the store that day would it be expected that the person pay for the shirt again? Surely not. The same scenario applies in this case. The relationship existing between Plaintiff and Worldwide and the failure of Worldwide to carry through with its obligation to Plaintiff should not create a hardship on Defendants of having to pay twice for the singular service of having their goods moved only one time. There are many facts in dispute and yet undiscovered regarding the actual relations between Plaintiffand Worldwide. Yet, even examining those facts yet incomplete reveal that Plaintiff had complete knowledge of who it was to receive payment from and that Defendants had pre-paid for their shipment services. Under the theory of unjust enrichment, Plaintiff has not and cannot satisfy its legal burden to show all relevant and material facts are undisputed between the parties and that viewing those undisputed facts in a light most favorable to Defendants that Plaintiff is entitled to judgment as a matter of law in its favor. Plaintiffs motion for summary judgment based on unjust enrichment of Defendants must be denied. United is NOT entitled to summary iud~ment against Defendants on United's claim fo, account stated 37. Denied that these facts as stated are relevant to the material issues and circumstances of this matter and that they create any liability on the part of Defendants to Plaintiff. Denied that Defendants have assented to the account as presented to Defendants for payment to Plaintiff. The account is disputed, as is clearly evidenced by Defendants defense against this civil matter. 38. Denied that these facts as stated are relevant to the material issues and circumstances of this matter and that they create any liability on the part of Defentdants to Plaintiff. In addition, as aforementioned in Defendants Paragraph 20, there are exceptions to the "filed rate doctrine" that create a judicial exception to liability on the part of Defendants to Plaintiff in this case. 39. Denied that these facts as stated are relevant to the material issues and circumstances of this matter and that they create any liability on the part of Defendants to Plaintiff. Defendants have never admitted to any liability or accountability for any pml of the account stated by Plaintiff. The existence of an account and a creditor's requesting payment on that account does not create a liability as a matter of law on behalf of the alleged debtor to pay that account under a claim of account stated. 40. Denied that under the filed rate doctrine and the Bill of Lading that Defendants are presumed to have assented to their account and are obligated to pay the outstanding balance. Exceptions to the filed rote doctrine and Bill of Lading were created by the factual circumstances of this case. The material facts of this case are highly complex and disputed between the parties. Under the theory of account stated, Plaintiff has not and cannot satisfy its legal burden to show all relevant and material facts are undisputed between the parties and that viewing those undisputed facts in a light most favorable to Defendants that Plaintiff is entitled to judgment as a matter of law in its favor. Plaintiff's motion for summary judgment based on account stated must be denied. United is NOT entitled to summary iudement on all its claims against Defendantx notwithstanding Defendants' alleged payment to Worldwide for United's moving service:; 41. Denied. Worldwide existed as an agent in fact on behalf of Plaintiff, possibly more than such, at the time of the moving services between Plaintiff and Defendants. At this time there are yet undiscovered facts existing regarding the exact contractual relationship between Worldwide and Plaintiff. Defendants know only that a contract did exist between Plaintiff and Worldwide whereby Worldwide would generate additional business for Plaintiff in exchange for Plaintiff offering reduced rates for such incoming business. Defendanls do know that regardless of the contractual agreement existing between Worldwide and Plaintiff, the agreement was that Worldwide would collect payment from shippers and forward payment for the carrier services on to Plaintiff. Therefore Plaintiff had full knowledge, knowing that Defendants had arranged for their carrier services through Worldwide, that Defendants would pay Worldwide for the carrier services and that Plaintiff would seek payment for their services from Worldwide. Again, exceptions to the filed rate doctrine and to contra:ctual liabilities exist for the protection of innocent parties such as Defendants. 42. Denied. In fact, case law points out that in cases such as', this where an innocent shipper has paid in full for a carrier's services and the Bill of Lading is marked "pre-paid''~ that a shipper cannot and should not, under the theory of equitable estoppel, be made to pay twice for the same carrier service. See arguments and cases cited in paragraphs 20 and 22. 43. Admitted that the Bill of Lading contains the language in Plaintift's paragraph 43. Denied that Defendants willingly accepted or agreed to this term in the Bill of Lading. The Bill of Lading, for reasons aforementioned, was and is an adhesion contract, and was entered into by Defendants under duress, misrepresented facts, and fraud on behalf of Plaintiff. In addition, Plaintiff had a duty, given its knowledge of the fact that the Defendants had pre-paid for the services to its contracting panner Worldwide, to mark the Bill of Lading itself "pre-paid". · In this case the Bill of Lading reads "the Estimate/Order for Service prepared in advance of shipment are hereby incorporated by reference." The Binding Estimate Cost of Service is clearly marked "Paid in Full". This document was presented to Paulk's United, an agent for Plaintiff well in advance of the date the Bill of Lading was presented for initial execution on the shipment delivery date of July 10, 2001. Therefore, Plaintiff, not only from its usual dealings with its customers generated through its contract with Worldwide, knew that Defendants had pre-paid for its carrier services, but had actual notice of such on the only cost estimate sheet generated related to this shipment of household goods. 44. Admitted that Defendants have never paid Plaintiff directly for the carrier services provided. As prearranged by all parties involved, including Plaintiff, however, Defendants did pay Worldwide, in full, prior to the date the carrier services were provided. Denied that under the Bill of Lading there is any liability by any means on the pa~t of Defendants. The Bill of Lading is an adhesion contract, entered into by Defendants ander duress, misrepresented facts, and fraud by Plaintiff. The Defendants, under Pennsylvania contract law, cannot be fomed to comply with the terms of the Bill of Lading. In addition, under all the relevant and incorporated agreements and related documents which create the entire conl:ractual arrangement between the parties to this movement of household goods agreement, Defendants have fully complied with their obligations to pay for the services rendered. 45. Denied. Defendants deny and dispute that they were the consignors of their household goods. See arguments made in paragraphs 12 and 23. Admitted that Plaintiff did carry Defendants' household goods from Carlisle, Pennsylvania to Metairie, Louisiana. Admitted that Defendants did not pay Plaintiff directly for the carrier services. However, it was agreed upon in advance that Defendants would pay Worldwide for the carrier services and that Worldwide would forward an amount agreed upon between Worldwide and Plaintiff to Plaintiff. Admitted that the Bill of Lading contains language as stated in Plaintiff's paragraph 45. Denied that the language in the Bill of Lading creates absolute liability on behalf of the Defendants to Plaintiff given the facts of this matter. 46. Defendants have no real knowledge regarding what payments Plaintiff in fact has received regarding its carrier services performed regarding this matter, therefore they neither deny this allegation. Plaintiff has not and cannot satisfy its legal burden to show all relevant and material facts are tmdisputed between the parties regarding the issue of whether or not the Defendants' payment in full for the carrier services to Worldwide justifies their denial of payment for the same services to Plaintiff since Plaintiff was aware of this pman:anged payment plan. In addition, even viewing those disputed facts as presented by Plaintiff in a light most favorable to Defendants Plaintiff has not shown that under the law it is entitled to judgment as a matter of law. Plaintiff's motion for summary judgment based on Defendants paying Worldwide for the carrier services rendered and not Plaintiff must be denied. United is NOT entitled to summa 'ud ment on Defendants' counterclaim for attorne's fees ursuant to 42 Pa. CS Section 2503 47. Denied. A claim for attorney's fees is properly made in the pleadings of a matter. Therefore, the claim by Defendants for attorney's fees is time][y made. The determination of whether or not the attorney's fees claim should be awarded and in what amount comes at the conclusion of a trial on the merits. Wood v. Geisenhemer-Sha ulis 827 A.2d 1204 (Pa. Super 2003). It is this motion for summary judgment by Plaintiff seeking a ruling on all claims in this matter in the face of yet undiscovered material facts and existing disputed material facts and unclear points of law that is untimely. 48. Admitted that Defendants' attorney fees claim cannot be imposed until the conclusion of these proceedings. Denied that a summary judgment should therefore be imposed to dispose of the claim at this time. A claim for attorney's fees based on 42 Pa. CS Section 2503 is a factually driven ~nquisition and the facts surrounding Defendants' claim for attorney's fees are disputed. Therefore, a motion for summary judgment seeking disposal of the claim at this juncture of the proceedings is untimely. Plaintiff's motion for summary judgment disposing of Defendants' claim for attorney's fees must be denied. DEFENDANTS' NEW MATTER 49. Defendants incorporate by reference all answers and allegations set forth above in paragraphs 1 - 48. 50. Plaintiff and other carrier giants of the transportation industry are attempting to label consignees such as Defendants the shippers, consignors, and consignees of their goods even in instances when a third party shipping company such as Worldwide is involved in order to create an absolute liability where none was intended by the legislature and should not be permitted by the judiciary. Bills of lading are in fact adhesion contracts and have been held as a matter of law to be such. Therefore, simply because the language of the bill of lading signed by Defendants states that they are the shipper, consignor and consignee of their goods, does not and should not define their positions in this matter. Rather the true facts and circumstances after careful scrutiny should be utilized to determine what party played what role in this shipping contract. 51. In this matter, Worldwide was the shipper and/or consignor. Defendants were the consignees. 52. Plaintiff has a duty to fairly represent, honestly mark, and in all respects ensure that the bill of lading is correct. 53. Plaintiff knew or should have known prior to the execution of the bill of lading that the Defendants had pre-paid for the shipping services to Worldwide and that payment was expected from Worldwide. 54. Plaintiff had a duty to mark the bill of lading itself"pre-paid". If Plaintiff's assertion is that the bill of lading is a contract between only the Plaintiff and Defendants and since Plaintiff had knowledge of the payment between Defendants and Worldwide and the express or implied agreement existing between itself and Worldwide regarding the pre-paid shipment service funds, it had a duty to Defendants to illustrate on its bill of lading that the consignor had been pre-paid by the consignee for the shipping services. 55. The bill of lading and other related documents such as the Binding Cost of Estimate for service misled Defendants to believe that Worldwide had a contractual duty to pay Plaintiff for the shipping services. Plaintiff now alleges that Worldwide never had a duty to forward the funds it collected in advance from Defendants for the shipping services. This misrepresentation goes to the essence of the bill of lading and renders the bill of lading void. 56. Plaintiff failed to meet the standards of the Uniform Commercial Code that imposes the performance or enforcement of a contract in "good faith." The Uniform Commercial Code defines "good faith" as "honesty in fact in the conduct or transaction concerned." Plaintiff issued the bill of lading to Defendant in a deceptive and confusing and incomplete manner. Defendant was forced to sign the bill of lading that contained essential terms to which they were not only unaware but were misled with regard to whom the parties to the contract were and what the contractual obligations were regarding payment and liabilities. Defendants are not responsible for the binding agreements within and associated with the bill of lading based on the fact that the Defendants' assent was induced by fraud and mistake in the bill of lading's execution. Plaintiff's failure of informing Defendants of the conditions of the Trade Services Agreement between Worldwide and Plaintiff represents Plaintiff's failure to uphold a contract in good faith and is a fraudulent action based upon the terms wit]bin the bill of lading and conduct in which the Defendants were forced to assent to the bill of lading. According to Plaintiff's Answers to the 1st set of interrogatories (See Defendants' Exhibit B, attached), Worldwide and Plaintiff engaged in a contractua][ agreement in April 2001, unknown to the Defendants until the interrogatories. Based on the terms of the agreement, Plaintiff agreed to provide services to Worldwide's customers. Based on the information given in the Answer to Interrogatories from Plaintiff, "The Transportation Services Agreement does not preclude United from seeking payment for its services directly from Defendants." But it was not the arrangement. In addition to this, under the circumstances and the insufficient protection of Lopez, Worldwide had no contractual obligation to forward Defendant's alleged payment to Worldwide onto United. (based on Plaintiff's own answer to Interrogatories). When United came to the home to pick up household effects, knowing that Lopez had paid Worldwide, had a duty to tell Lopez that before you sign the Bill of Lading, Worldwide has no obligation to forward money received from Lopez. (fraud and misrepresentation). Lopez had a right to assume some contractual obligation between Worldwide and United. Then Lopez would have a choice with full knowledge of the situation. Failure to withhold this information fi'om the Defendants is fraudulent in terms of engaging in a contract in "good faith," as well holding the Defendants responsible for the recovery of payment from a valid bill of lading. 57. The bill of lading issued to Lopez on or about July 10, 2001 contains misrepresentations that should warrant the bill to be declared a void contract. For a bill of lading to be void because of misrepresentations, the misrepresentations must go the very essence of the contract, affecting the promises made by the party who issued the bill of lading. Atlantic Mut. Ins. Co. v. M/V President Tyler, 765 F. Supp. 815, 199l A.C 452 (S.D.N.Y. 1990) Plaintiff's misrepresentation of Worldwide being responsible for payment is evidence to prove that the bill of lading be voided. Plaintiff's misrepresentation of the duties of Worldwide affected all areas of the bill of lading and the promises made by the carrier set forth in the Trade Services Agreement between Plaintiff and Worldwide and the duties of Defendants as consignees. The bill of lading and the documents associated therewith falsely misled Defendants to believe that Worldwide had a contractual duty to pay for the shipping services when in fact it did not. Plaintiffallowed and influenced Defendants to sign the bill of lading. They purposely drafted the bill in a manner that attempts to keep Defendants solely responsible for payment under the bill of lading, despite Plaintiff's knowledge of the Transportation Services Agreement between Worldwide and Plaintiff (Plaintiff's Answer to Interrogatories stated that such an agreement was entered into, but was not submitted with the Answer; We are requesting remittance of the Agreement prior to argument); despite the fact the agreement did not require Worldwide to forward payment to Plaintiff'; despite the language of the Interstate Transportation Code; and despite the fact that it knew that Defendants had pre-paid for the shipping services. The bill of lading was contracted in bad faith and in this matter should be ruled null and void. 58. As a matter of equitable estoppel (applying that concept to this case as conceptually it was applied in the case of EF Operating Corp. v. American Buildin? 993 F.2d 1046 (3d Cir. 1993)), recovery by Plaintiff from Defendants should be denied. 59. In addition to the equitable estoppel concept set forth in EF Operating Corp. v. American Buildings, op cit, Plaintiff's arrangement with Worldwide and Lopez is unconscionable. Initially United goes to Worldwide as a broker type to provide for transportation of household goods. In accordance with the definition of consignee in 49 USCS section 80101 Definitions: "Consignor means the person named in a bill of lading as the person from whom the goods have been received for shipment." This is the proper manner consideration of the goods and the movement process in this case. The consignee in this same section "means the person named in a bill of lading as the person to whom the goods are to be delivered." In the process of dealing with this broker type, Worldwide tells Lopez that "I know just the hauler to take care of your goods. In fact, you used him a year ago; and, in case you are worried about my remitting the $5,000 fee for the hauler, you recall that everything went well a year ago." At that point, the bill of lading, having been signed, Lopez is allegedly bound to the terms thereof. Now we have all of the parties sitting around the table with a certain amount of smugness, having gone through this process before with Lopez and probably with many other household owners going from army post to army post. Defendants claim that the purpose of this arrangement is to ensure that Lopez is contractually and without notice liable to the two parties. May 12, 2004 Worldwide is the consignor, no matter what names are. Impliedly, if not specifically, United had an understanding that Worldwide would be the agent for the collection of the fee for United. All this time, Worldwide and United figure that they can circumvent the holding of EF Operatine Corp. v. American Buildings, op cit, just in case anything may happen. And it did happen; Worldwide went bankrupt. The interests of United could have been taken care of by some other contractual relationship. 60. Worldwide and/or United had a duty to give notice bec~mse they prepared the documents and the documents should be construed against the makers. 61. An agency agreement could have existed between Worldwide and United. The current agreement (oral or written) is designed to circumvent an agency relationship by specific language of liability. If the relationship were agency alone, and[ agent Worldwide received the total $7,000 and failed to pay $5,000 to the principal United, his fee would have been lost. 62. Comment on Paragraph 12. The relationship of the parties can also and more accurately be described as "Defendants provided the goods to be transported to Lopez by hauler referred to We had previously pointed out the relationship between Worldwide and United. The parties chose not to establish an agency relationship, which may have limited the ability of United to recover from Worldwide in the event of Worldwide's bankruptcy. The written or oral "gentlemen's agreement" ensured that reliance upon statutory protection by imposing liability only upon consignee would protect the hauler. ~ohn I~. Brouios, Esquire) #6268 BRDglJOS & GILROY, P.C. 4 North Hanover Street Carlisle, Pennsylvania 17013 717/243-4574; 717/766-1690 FAX# 717/243-8227 UNITED VAN LINES, LLC, Plaintiff ANTONIO LOPEZ and MICHELE LOPEZ, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL DIVISION - LAW .. : NO. 2003 - 3442 .. CERTIFICATE OF SERVICE I, John H. Broujos, Esquire, hereby certify that I have served a tree and correct copy of the foregoing D6fendants' Response in Opposition to Motion for Summary Judgment of Plaimiff United Van Line, LLC and Defendants' New Matter on the following person and at the following address by United States First Class Mail on May 12, 2004 to: David T. Games, Esquire Fox Rothschild, LLP 2000 Market Street, 10th Floor Philadelphia, PA 17103-3291 May 12, 2004 J~rat~r~ljos, Esquire No. 6268 A~torney f6r Defendants BRQ_~d.OS & GILROY, P.C. 4 North Hanover Street Carlisle, Pennsylvania 17013 (717) 243-4574 (717) 243-8227 FAX BINDING ESTIMATE COST OF SERVICE ~lii-' FOX ROTHSCHILD LLP BY: Joshua Horn, Esquire and David T. Games, Esquire IDENTIFICATION NOs. 71799 and 85998 2000 MARKET STREET, TENTH FLOOR PHILADELPHIA, PA 19103-3291 (215) 299-2000 UNITED VAN LINES, LLC, Plaintiff, ANTONIO LOPEZ and MICHELLE LOPEZ, H/W, Defendants. ATTORNEYS FOR PLAINTIFF UNITED VAN LINES, LLC COURT OF COMMON PLEAS CUlVlBERLAND COUNTY NO 03-3442 ANSWERS AND OBJECTIONS OF PLAINTIFF UNITED VAN LINES, LLC TO THE FIRST SET OF INTERROGATORIES OF DEFENDANTS ANTONIO LOPEZ AND MICHELLE LOPEZ Plaintiff, United Van Lines, LLC ("United"), by and through its attorneys, Fox Rothschild LLP, hereby submits the following answers and objections to the first set of interrogatories of defendants, Antonio Lopez and Michelle Lopez (collectively, "Defendants"), as follows: EXHIBIT B GENERAL OBJECTIONS 1. United objects to the instructions and definitions set forth in Defendants' interrogatories to the extent that they exceed the scope of discovery imposed by the Pennsylvania Rules of Civil Procedure. United will only respond to Defendants' discovery requests within the limits set forth in the Pennsylvania Rules of Civil Procedure. 2. United objects to Defendants' interrogatories to the extent that they are directed to a person or entity other than United. It is oppressive and burdensome to request United to respond to discovery requests directed to a person or entity other than United and over whom United has no control or duty to control. 3. United objects to Defendants' discovery requests to the extent that they call for proprietary and/or confidential business information. United will only consider producing proprietary and/or confidential information responsive to these discovery requests upon the parties entering into an agreement governing confidentiality. 4. United objects to any discovery requests that call for information protected by the attorney-client privilege and/or work product doctrine. By maS:ing a response to any such discovery request, United does not waive the attorney-client privilege and/or work product doctrine as to that discovery request or as to any future discovery request. Further, to the extent that United inadvertently produces any information, which, in whole or in part, contains information protected by the attorney-client privilege and/or work product doctrine, such production does not waive the protection of the attorney-client and/or work product doctrine. -2- 5. United objects to Defendants' discovery requests to the extent that Defendants direct such requests to the parents, affiliates, divisions, subdivisions, successors, predecessors, officers, directors, employees and former employees of United. United does not have control over all such entities and/or persons. To the extent that United may or could have such control, it would be unduly burdensome for United to undertake any response within this scope. United will only answer within the limits set forth in the Pennsylvania Rules of Civil Procedure. 6. United objects to Defendants' discovery requests on the basis that Defendants seek documents and/or information, which is already in the possession of Defendants. Without waiving the objections set forth above, United sets forth the following answers to Defendants' interrogatories: II. ANSWERS TO INTERROGATORIES INTERROGATORY NO. 1: Identify, either by separate listing in this paragraph or within each question's answer, each person providing information, with his or her position and title within Plaintiff's company, with respect to answers supplied herein. ANSWER: United objects to this interrogatory on the basis that it seeks information protected by the attorney-client privilege and/or work product doctrine. -3- Notwithstanding the foregoing objection and without waiving the same, United answers as follows: INTERROGATORY NO. 2: Identify each person, other than a person intended to be called as an expert witness at trial, having discoverable information that tends to support a position you have taken or intend to take in this action, including any claim for damages, state the subject matter of the information possessed by that person, and if this person is a representative, employee, or servant of United, state how long he or she has maintained this position. ANSWER: United objects to this interrogatory on the basis that it is overbroad and, therefore, as creating an unnecessary burden on United to respond. United also objects to this interrogatory on the basis that it seeks information protected by the attorney-client privilege and/or work product doctrine. United further objects to this interrogatory on the basis that it seeks information already in the possession of Defendants. United also objects to this interrogatory on the basis that it is premature at this stage of the proceedings. Notwithstanding the foregoing objections and without waiving the same, United answers as follows: United will supplement this answer in accordance with the Cumberland County Rules of Procedure. -4- INTERROGATORY NO, 3: Identify each person whom you expect to call as an expert witness at trial, state the subject matter on which the expert is expected to testify, state lhe substance of the findings and opinions to which the expert is expected to testify and a summary of the grounds of each opinion, and attach to your answers any written reports made by the expert concerning those findings and opinions. ANSWER: United objects to this interrogatory on the basis that it seeks info,nation protected by the attorney-client privilege and/or work product doctrine. United also objects to this interrogatory as premature at this state of the proceedings. United will supplement its answer to this interrogatory in accordance with an appropriate scheduling order issued by the Court. INTERROGATORY NO. 4: When, where, and on what occasion did United first have contact with Defendant at any time, including 2001 ? .ANSWER: United objects to this interrogatory on the basis that it ils vague, ambiguous and overbroad and, therefore, as creating an unnecessary burden on United re. respond. United also objects to this interrogatory on the basis that it seeks information already in the possession of Defendants. -5- Notwithstanding the foregoing objections and without waiving the same, United answers as follows: United's earliest record of contact with Defendant,,; occurred in or about July of 2001, when Defendants and United discussed their move. INTERROGATORY NO. 5: Did United enter into an agreement for movement of household effects for Defendants during 2000, from Louisiana or other location to Army War College environs in Carlisle Pennsylvania? If so, provide the following information relative thereto: A. Date of the agreement B. Arrangements for payment C. Whether Worldwide was the consignor D. Did Worldwide initially receive the amount charged by United E. Did Worldwide forward the amount charged and billed for United directly to United; when; by what means F. In detail, set forth what difference there was in the agreement, movement, payment, and method of contracting and consummation of this movement G. List dates of all correspondence between and among Worldwide, United, and Defendants. ANSWER: United objects to this interrogatory on the basis that it is vague and ambiguous and, therefore, as creating an unnecessary burden on United to respond. United also objects to this interrogatory on the basis that it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. -6- Notwithstanding the foregoing objections and without waiving the same, United answers as follows: United has no record of providing services to Defendants other than in connection with Defendants' July 2001 move. Moreover, even if there were an alleged prior transaction between United, Defendants and Worldwide, Defendants, who are the shippers, consignors and consignees under the July 2001 Bill of Lading, are liable to UnSted for payment of United's services pursuant to the express terms of Defendants' Bill of Lading with United, United's Tariff and the ICC Termination Act. INTERROGATORY NO. 6: When did negotiations between Defendant and United begin? List the specific date or dates and the persons involved in the negotiations. ANSWER: United objects to this interrogatory on the basis that it is vague and overbroad and, therefore, as creating an unnecessary burden on United to respond. United also objects to this interrogatory on the basis that it does not understand what Defendants mean by the term "negotiations." United further objects to this interrogatory on the basis that it seeks information already in the possession of Defendants. Notwithstanding the foregoing objections and without waiving the same, United answers as follows: Defendants executed the Bill of Lading in or about July of 2001; thus, United asserts that any "negotiations" of the Bill of Lading occurred in or around July of 2001. Antonio Lopez; Michelle Lopez; and United, were involved in the execution of the Bill of Lading. -7- United's investigation is ongoing, and United reserves the right to supplement its answer to this interrogatory. INTERROGATORY NO. 7: List by date and briefly identify the nature of all documents bearing the signature of Lopez: ANSWER: United objects to this interrogatory on the basis that it is vague and overbroad and, therefore, as creating an unnecessary burden on United to respond. United also objects to this interrogatory on the basis that it seeks information already in the possession of Defendants. Notwithstanding the foregoing objections and without waiving the same, United answers as follows: United is aware &the following relevant documants that bear Defendants' signature: Additional Services Performed Forms 07/09/01; 07/10/01 Household Goods Descriptive Inventory Forms 07/09/01; 07/10/01 Bill of Lading 07/10/01 INTERROGATORY NO. 8: Excluding the information in the above interrogatory, list all documents containing the name of Lopez and or United related to the claim of United, which are not necessarily agreements. Provide the documents in response in a separate ]production of documents request. -8- ANSWER: United objects to this interrogatory on the basis that it is vague, ambiguous and overbroad and, therefore, as creating an unnecessary burden on United to respond. United also objects to this interrogatory on the basis that it seeks information already in the possession of Defendants. United further objects to this interrogatory on the basis that it seeks information protected by the attorney-client privilege and/or work product doctrine. Notwithstanding the foregoing objections and without waiving the same, United answers as follows: United will make available for inspection documents that are responsive to this interrogatory in accordance with Pennsylvania Rule of Civil Procedure 4006(b). INTERROGATORY NO. 9: Including the above information, list by date and briefly identify, with dates and documentation, all agreements, either oral or written, between United and Defendant, regarding the moving of Defendant's household goods. Provide the documents in response in a separate production of documents request. ANSWER: United objects to this interrogatory on the basis that it seeks information already in the possession of Defendants. Notwithstanding the foregoing objection and without waiving the same, United answers as follows: the only agreement between United and Defendants is the Bill of Lading executed by Defendants in July of 2001. United will make the Bill of Lading available for inspection. -9- INTERROGATORY NO. 10: Why did United not require payment for charges in this case directly to United? ANSWER: United objects to this interrogatory on the basis that it contains inaccurate and/or incorrect information and it is unintelligible. Notwithstanding the foregoing objection and without waiving the same, United answers as follows: United did require payment for its services directly to United. Specifically, the back and front of the Bill of Lading expressly states that Defendants, as shippers, consignors and consignees, are directly responsible to United for payment for ~the services rendered to Defendants pursuant to the Bill of Lading. Moreover, pursuant to the terms of Defendants' Bill of Lading with United, United's Tariff and the ICC Termination Act, United can seek payment for its services directly from Defendants regardless of Defendants' relationship, if any, with Worldwide, or Defendants' alleged payment to Worldwide for United's services. INTERROGATORY NO. 11: Has United ever required payment in advance for mow:ment of goods from a home to a military base in a situation similar to this case? ANSWER: United objects to this interrogatory on the basis that it is vague, ambiguous and extremely overbroad and, therefore, as creating an unnecessary burden on United to respond and is being offered for no reason other than to harass and unduly burden United. United also objects to this interrogatory on the basis that it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. -10- INTERROGATORY NO. 12: Briefly identify here the typical method of payment used with United for customers who move household furnishings. Provide the documents in response in a separate production of documents request. ANSWER: United objects to this interrogatory on the basis that it i~5 vague, ambiguous and overbroad and, therefore, as creating an unnecessary burden on United to respond. United also objects to this interrogatory on the basis that it does not understand what Defendants mean by the phrase "typical method of payment." Notwithstanding the foregoing objections and without waiving the same, United answers as follows: Pursuant to the terms of the Bill of Lading used by United, shippers, consignors and consignees are directly responsible to United for payment of the services rendered to them. Accordingly, Defendants as the shippers, consignors and consignees under the Bill of Lading are directly responsible for payment to United pursuant to the express terms of Defendants' Bill of Lading with United, United's Tariff and the ICC Termination Act. INTERROGATORY NO. 13: Briefly identify the nature of your relationship with Worldwide. A. How long have you been conducting business of any kind with Worldwide B. Has United moved household furnishings under an agreement, written or verbal, direct or implied, with Worldwide. -11- C. Identify the particular types of arrangements and methods of payment that United has employed in its relationships with Worldwide in moving household furnishings. ANSWER: United and Worldwide are parties to a transportation services agreement executed by the parties in April 2001. Pursuant to the transportation services agreement, United agreed to provide moving services to Worldwide's customers~ The transportation services agreement does not preclude United from seeking payment for its services directly fi.om Defendants. To the contrary, pursuant to the terms of Defendant's Bill of Lading with United, United's Tariff and the ICC Termination Act, Defendants, as shippers, consignors and consignees under the Bill of Lading, rema'm liable to United for payment for United's services. Moreover, Worldwide has no contractual obligation to forward Defendants' alleged payment: to Worldwide to United. More importantly, United had no knowledge of Defendants' alleged payment to Worldwide. INTERROGATORY NO. 14: Please describe the specific arrangement among Defendant, Worldwide and United in the present case. ANSWER: United objects to this interrogatory on the basis that it iis vague and ambiguous and, therefore, as creating an unnecessary burden on United to respond. Notwithstanding the foregoing objection and without waiving the same, United answers as follows: pursuant to the transportation services agreement, United provided moving services to Defendants as Worldwide's customers. The transportation services agreement does not -12- preclude United from seeking payment for its services directly from Defendants. To the contrary, pursuant to the terms of Defendant's Bill of Lading with United, United's Tariff and the ICC Termination Act, Defendants, as shippers, consignors and consignees under the Bill of Lading, remain liable to United for payment for United's services. Moreover, Worldwide has no contractual obligation to forward Defendants' alleged payment to Worldwide onto United. More importantly, United had no knowledge of Defendants' alleged ]payment to Worldwide. INTERROGATORY NO. 15: Identify the specific documents by name, date, and description among Defendant, Worldwide and United in the present case. Provide the documents in response in a separate production of documents request. ANSWER: United objects to this interrogatory on the basis that it is vague, ambiguous and unintelligible and, therefore, as creating an unnecessary burden on United to respond. Notwithstanding the foregoing objection and without waiving the same, United answers as follows: see the answers to interrogatory numbers 9, 13 and. 14. By way of further answer, United will make a copy of the transportation services agreement available for inspection. INTERROGATORY NO. 16: Did United have any communications with Worldwide prior to or at the same time of the contract between United and Lopez in July of 2001? If so, give the dates, a description of the contents, the purpose, and the type of communication (either by letter, fax, phone call, or email). Provide the documents in response in a separate production of documents request. -13- ANSWER: United objects to this interrogatory on the basis that it is vague and overbroad and, therefore, as creating an unnecessary burden on United to respond. Notwithstanding the foregoing objection and without waiving the same, United answers as follows: United has no record of communications with Worldwide prior to July 2001, other than the transportation services agreement. INTERROGATORY NO. 17: Did United have information that Defendant paid Worldwide the amount of $7,218.93 prior to United's shipment of Lopez's household effects from the Carlisle Barracks to New Orleans in July of 2001? If yes: List the persons involved, the substance of the information, the initial and subsequent dates when the information was obtained or supplied. Provide the documents in response in a separate production of documents request. ANSWER: United had no knowledge of Defendants' alleged payment to Worldwide, and any such alleged payment does not remove Defendants' absolute obligation to remit payment directly to United under the terms of Defendants' Bill of Lading with United, United's Tariff and the ICC Termination Act. Moreover, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. INTERROGATORY NO. 18: At the time of or prior to the agreement in dispute, what discussions took place regarding the particular method of payment which the Defendant would be using? Provide the date, -14- substance, and the persons to whom payment was to be made, and persons present at each discussion. ANSWER: United objects to this interrogatory on the basis that it is vague, ambiguous and overbroad and, therefore, as creating an unnecessary burden on United to respond. United also objects to this interrogatory on the basis thai it does not understand what Defendants mean by the phrase "method of payment." Notwithstanding the foregoing objections and without waiving the same, United answers as follows: United required Defendants to sign the Bill of Lading in or about July 2001 in connection with United providing its services to Defendants. Moreover, the front and back of the Bill of Lading expressly states that Defendants, as shippers,, consignors and consignees, are directly responsible to United for payment for the services rendered to Defendants pursuant to the Bill of Lading. It was up to Defendants to determine how they wished to pay United. INTERROGATORY NO. 19: Did United have knowledge of or have information relating to the prospect of or fact of Worldwide filing for bankruptcy? If so, describe the information and date of obtaining knowledge of the information. ANSWER: United's only relationship with Worldwide is the transportation services agreement, and thus, United had no knowledge of Worldwidc's financial condition or that it was going to file bankruptcy. In fact, United did not learn of Worldwide's bankruptcy until it contacted Worldwide with respect to Defendants. Moreover, United had no knowledge of Defendants' -15- alleged payment to Worldwide, and any such alleged payment does not remove Defendants' absolute obligation to remit payment directly to United under the terms of Defendants' Bill of Lading with United, United's Tariff and the ICC Termination Act. Further, Worldwide has no contractual obligation to forward Defendants' alleged payment onto United. INTERROGATORY NO. 20: If yes, list the persons involved, the date in which the lomwledge or information was obtained, and the substance of the knowledge. Provide the documents in response in a separate production of documents request. ANSWER: See answer to interrogatory 19. INTERROGATORY NO. 21: Was the bill of lading marked "prepaid"? If not why not? ANSWER: The Bill of Lading was not marked "prepaid." United did not have a duty to mark the Bill of Lading "prepaid." Indeed, Defendants did not prepay to United the transportation costs associated with their move. Moreover, Defendants signed the Bill of Lading despite the fact that the Bill of Lading does not state that it is "prepaid." Further, the front and back of the Bill of Lading expressly states that Defendants, as shippers, consignors and consignees, are directly responsible to United for payment for the services rendered to ]Defendants pursuant to the Bill of Lading. -16- INTERROGATORY NO. 22: Has Worldwide ever within the last five years marked a bill of lading in language of "prepaid" or similar language meaning the same thing in a similar situation of movement of household items. ANSWER: United objects to this interrogatory on the basis that it i,,s vague, ambiguous and overbroad and, therefore, as creating an unnecessary burden on United to respond and as being offered for no other reason than to harass United as United has in all likelihood performed in excess of one million moves over the last five years. United also objects to this interrogatory on the basis that it seeks information from individuals and/or entities that are separate and distinct from United, and over whom United has no control or duty to control. United further objects to this interrogatory on the basis that it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. INTERROGATORY NO. 23: Within the last 5 years, did United mark bills of lading with other customers in a similar situation as "prepaid" or in words to the same effect? If so, if not done in the present case, indicate the reason why this was not done. ANSWER: United objects to this interrogatory on the basis that it ils vague, ambiguous and overbroad and, therefore, as creating an unnecessary burden on United to respond and as being offered for -17- no other reason than to harass United as United has in all likelihood performed in excess of one million moves over the last five years. United also objects to this interrogatory on the basis that it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. INTERROGATORY NO. 24: In the prior movement of household furnishing for Def~ndants in June 2000, was any document circulating between or among the parties - Worldwide, United, Defendants - marked with any language indicating explicitly or impliedly that payment was "prepaid" or in words similar thereto? If so, indicate the date, parties, and substance of the document. Provide the documents in response in a separate production of documents request. ANSWER: United objects to this interrogatory on the basis that it is vague and ambiguous and, therefore, as creating an unnecessary burden on United to respond. United also objects to this interrogatory on the basis that it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the foregoing objections and without waiving the same, United answers as follows: United has no record of providing services to Defendants other than in connection with Defendants' July 2001 move. -18- INTERROGATORY NO. 25: Were there any special terms in the agreement in the present case between United and Defendant that were not standard procedure within United between a consignor, carrier, and customer in the manner of payment of movement of household furnishings? ANSWER: United objects to this interrogatory on the basis that it i:~ vague and ambiguous and, therefore, as creating an unnecessary burden on United to respond. United also objects to this interrogatory on the basis that it does not understand what Defendants mean by the phrase "special terms." Notwithstanding the foregoing objections and without waiving the same, United answers as follows: The Bill of Lading executed by Defendants was the standard Bill of Lading used by United. Moreover, Defendants' obligations under the Bill of Lading are clearly stated, and United was under no duty to explain them to Defendants. Simply stated, the Bill of Lading that Defendants signed of their own free will and volition provides that Defendants are responsible to pay the Bill of Lading regardless if another party does not. Further, Defendants' obligation to remit payment to United is absolute pursuant to the terms of Defendants' Bill of Lading with United, United's Tariff and the ICC Termination Act. INTERROGATORY NO. 26: If yes, provide the substance and the date of the special terms and persons involved in arranging these special terms. In addition, list the reasons why these special terms were pursued. -19- ANSWER: See answer to interrogatory 25. INTERROGATORY NO. 27: Prior to the loading of household effects, was Defendant told of the method of payment that would be followed for the moving that took place on July 20017 ANSWER: United objects to this interrogatory on the basis that it is vague, ambiguous, overbroad and unintelligible and, therefore, as creating an unnecessary burden on United to respond. United also objects to this interrogatory on the basis that it does not understand what Defendants mean by the phrase "method of payment." Notwithstanding the foregoing objections and without waiving the same, United answers as follows: See Defendants' Bill of Lading with United. INTERROGATORY NO. 28: If so, indicate any documents that would support this communication. Provide the documents in response in a separate production of documents request. ANSWER See answer to interrogatory 27. INTERROGATORY NO. 29: On any prior occasion, such as in June 2000, did United have knowledge of the payment arrangements prior to the loading of Defendant's household effects? -20- ANSWER: United objects to this interrogatory on the basis that it is vague, ambiguous and unintelligible and, therefore, as creating an unnecessary burden on United to respond. United also objects to this interrogatory on the basis that it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the foregoing objections and without waiving the same, United answers as follows: United has no record of providing services to Defe. ndants other than in connection with Defendants' July 2001 move. INTERROGATORY NO. 30: If yes, list any documents or memoranda which contain information of this arrangement prior to the loading and transportation of household effects. ANSWER: See answer to interrogatory 29. INTERROGATORY NO. 31: If United did have a moving arrangement with Defendant prior to the present agreement, such as in June 2000, did United follow the same moving procedure and method of payment as in the first move from New Orleans to the Carlisle Barracks? ANSWER: United objects to this interrogatory on the basis that it is vague, ambiguous and duplicative and, therefore, as creating an unnecessary burden on United to respond. -21- United also objects to this interrogatory on the basis that it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the foregoing objections and without waiving the same, United answers as follows: United has no record of providing services to Defendants other than in connection with Defendants' July 2001 move. INTERROGATORY NO. 32: If yes, list the date and describe in detail the terms and conditions of the moving and payment procedure. Provide the documents in response in a separate production of documents request. ANSWER: See answer to interrogatory 31. INTERROGATORY NO. 33: If United did have a similar moving and storage arrangement with Defendant prior to the present agreement, then what discussions took place regarding the particular method of payment Defendant would be using for this prior move? Provide the dale, substance, and the persons present at each discussion. ANSWER: See answer to interrogatory 31. -22- Notwithstanding the foregoing objection and without waiving the same, United answers as follows: United did require payment for its services directly to United. Specifically, the front and back of the Bill of Lading expressly states that Defendants, as shippers, consignors and consignees, are directly responsible to United for payment for the services rendered to Defendants pursuant to the Bill of Lading. Moreover, pursuant the terms of Defendants' Bill of Lading with United, United's Tariffand the ICC Termination Act, United can seek payment for its services directly from Defendants regardless of Defendants' relationship, if any, with Worldwide, or Defendants alleged payment to Worldwide for 'United's services. INTERROGATORY NO. 37: Has United ever required payment in advance for mow:ment of goods from a home to a military base in a situation similar to this case? ANSWER: United objects to this interrogatory on the basis that it is duplicative, vague and ambiguous and, therefore, as creating an unnecessary burden on United to respond and is being offered for no other reason than to harass United. -25- United also objects to this interrogatory on the basis that it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. JOSHUA HORN, ESQUIRE DAVID T. GARNES, ESQUIRE FOX ROTHSCHILD LLP 2000 Market Street, 10th Floor Philadelphia, PA 19103 Telephone: (215)299-2034 Telecopier: (215) 299-2150 Dated: October 17, 2003 Attorneys for Plaintiff United Van Lines:, LLC -26- VERIFICATION L SCOTT E. HUBER, bereby certify that I am a Senior Staff Attorney for plaintiff, United Van Lines, I..LC; that ! am authorized to take this verification on its behalf; that I have reviewed the foregoing answers and objections of plaintiff, United Van Lines, LLC, to the first set of interrogatories of defendants, Antonio Lopez and Michell¢ Lopez; and that the facts contained therein aw tree and correct to the best of my information and belief. I understand thl~t the statements made herein are subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Datm:l: October .1.~, :2003 FOX ROTHSCHILD LLP BY: Joshua Horn, Esquire and David T. Games, Esquire IDENTIFICATION NOS. 71799 and 85998 2000 MARKET STREET, TENTH FLOOR PHILADELPHIA, PA 19103-3291 (215) 299-2000 UNITED VAN LINES, LLC, Plaintiff, ANTONIO LOPEZ and MICHELLE LOPEZ, H/W, Defendants. ATTORNEYS FOR PLAINTIFF UNITED VAN LINES, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 03-3442 REPLY OF PLAINTIFF UNITED VAN LINES, LLC TO NEW MATTER OF DEFENDANTS ANTONIO LOPEZ AND MICHELLE LOPEZ TO MOTION FOR SUMMARY JUDGMENT Plaintiff, United Van Lines, LLC ("United"), by and through its attorneys, Fox Rothschild LLP, hereby replies to the new matter of defendants, Antonio Lopez ("Mr. Lopez") and Michelle Lopez ("Mrs. Lopez") (collectively, the "Defendants"), asserted in their response in opposition to United's motion for summary judgment. INTRODUCTION Defendants' new matter is improper and, for at least two reasons, fails to comport with the provisions of the Pennsylvania Rules of Civil Procedure. First, Pennsylvania Rule of Civil Procedure 1022 ("Rule 1022") requires every pleading to be divided into consecutively numbered paragraphs that contain as far as practicable only one material allegation. Defendants' new matter fails to comply with the requirements of Rule 1022 because a number of Defendants' new matter paragraphs contain multiple mater/al allegations. For instance, new matter paragraph 56 is comprised of six paragraphs that contain five mater/al allegations against United. Likewise, new matter paragraphs 50, 54, 57, 59 and 61 all contain multiple material allegations against United. Thus, none of those paragraphs comply with the letter or spirit of Rule 1022. Second, Pennsylvania Rule of Civil Procedure 1035.3 requires that a party responding to a motion for summary judgment must identify one or more issues of material fact ar/sing from evidence in the record controverting the evidence cited in support of the motion for summary judgment. United has cited the following undisputed facts in support of its motion for summary judgment: (1) that the Uniform Household Goods Bill of Lading and Freight Bill ("Bill of Lading") imposes an obligation on the part of Defendants to pay for United's moving services; (2) that Defendants have admitted that United has not been paid for its services; and (3) that pursuant to the terms of the Bill of Lading, Defendants remain liable to United for payment, l See generally United's Motion for Summary Judgment. In response to United's motion for summary judgment, Defendants fail to identify any evidence of record that controverts the evidence cited by United in support of its motion for summary judgment. Instead, Defendants' ~ The Bill of Lading is a part of the record because it was attached to United's complaint and incorporated therein by reference, and has been referred to by United and Defendants throughout the pleadings in this case. Most notably, the Defendants have referred to the Bill of Lading in their answer to United's first request for admissions where they admitted that Mr. Lopez signed the Bill of Lading on behalf of Defendants. See United's Motion for Summary Judgment at ¶ 22. -2- new matter contains various meritless legal arguments that do not controvert the undisputed facts cited by United in support of its motion for summary judgment. Therefore, because Defendants' new matter fails to comply with Pennsylvania Rules of Civil Procedure 1022 and 1035.3, the Court should not consider it in deciding United's motion for summary judgment. However, in the event the Court does consider Defendants' new matter in evaluating United's motion for summary judgment, United responds to the respective numbered paragraphs of Defendants' new matter as follows: REPLY TO NEW MATTER 49. United incorporates by reference its motion for summary judgment and memorandum of law in support thereof as if set forth at length herein. 50. Denied. It is specifically denied that United is acting with other "carrier giants" in the transportation industry in an attempt to label Defendants as the shippers, consignors and consignees of their goods. To the contrary, the Bill of Lading, which Defendants admit that Mr. Lopez executed on behalf of Defendants, clearly identifies Defimdants as the shippers and consignees of their goods. Specifically, the Bill of Lading expressly lists Mrs. Lopez as both the shipper and consignee of Defendants' goods. See Defendants' Motion for Summary Judgment at ¶ 22. Further, Mr. Lopez signed the Bill of Lading twice, once in a section above the word "shipper", and again in a section entitled, "Delivery Acknowledgment." See id. Thus, based upon the terms of the Bill of Lading and the location of Mr. Lopez's signatures, it is clear that Defendants were both the shippers and consignees of their goods. Moreover, Defendants are the consignors trader the Bill of Lading because they provided their' goods to United for shipment. See Louisville & N.R. Co. v. Central Iron & Coal, 265 U.S. 59, 67 (1924) (consignor is one on whose behalf a shipment is made). -3- Moreover, it is specifically denied that Worldwide Relocation Services, LLC's ("Worldwide") involvement in Defendants' move had any effect on Defendants' obligation under the Bill of Lading to pay United for its moving services. To the contrary, the Bill of Lading clearly states that Defendants, as the shippers, consignors and consignees of their goods, have an absolute obligation to pay United. Specifically, the facing side of the Bill of Lading states: "[i]f credit is extended by the carrier by agreeing to bill an employer or other party, and in the event that any or all of the charges are not paid, the owner of the goods and/or beneficiary of the services acknowledges he remains primarily liable for payment." See id. at ¶14. (emphasis added). Moreover, section three on the reverse side of the Bill of Lading states: "[t]he shipper, (individual or commercial) and consignor upon tender of the shipment to the carrier, and the consignee, upon acceptance of delivery of shipment from cartier, shall be liable jointly and severally, for all unpaid charges payable on account: of a shipment in accordance with applicable tariffs including, but not limited to, sums advanced or disbursed by a carrier on account of such shipment." See id. at ¶ 15. Here, Defendants admit that United has not received payment for its moving services. See id. at ¶¶ 30-32. Thus, pttrsuant to the terms of the Bill of Lading, Defendants remain liable to United regardless of Worldwide's involvement in Defendants' move. The remaining averments contained in paragraph 50 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is required, it is specifically denied that the Bill of Lading is an adhesion contract. To the contrary, the Bill of Lading is not an adhesion contract. Moreover, even i[fthe Bill of Lading was an adhesion contract, it would still be enforceable because its terms are reasonable and are supported by Federal case law. See Denlinger, Inc. v. Dendler, 415 Pa. Super. 164, 175,608 -4- A.2d 1061, 1067 (1992) (an adhesion contract is enforceable il'its terms are reasonable). Specifically, the Bill of Lading places an absolute obligation on Defendants, as shippers, consignors and consignees of their goods, to pay United for its moving services. See id. at ¶¶ 14- 15. This provision is supported by Federal law, which requires United to collect its full moving charges that are based on duly published rates. See Maislin Industries, Inc. v. Primary Steel, Inc., 497 U.S. 116, 127 (1990) (common carriers have an absolute obligation to collect their full moving charges); see also Bowser and Campbell v. Knox Glass, Inc., 390 F.2d 193, 195 (3d Cir. 1968) (citing Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Fink, 250 U.S. 577 (1919)). 51. Denied. The averments contained in paragraph 51 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is required, it is specifically denied that Worldwide is the shipper and/or consignor and that Defendants are only the consignees under the Bill of Lading. To the contrary, Defendants are the shippers, consignors and consignees under the Bill of Lading and, pursuant to the terms of the Bill of Lading, United's Tariff and the ICC Termination Act, Defendants have an absolute obligation to remit payment to United for its moving services. 52. Denied. The averments contained in paragraph 52 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is required, it is specifically denied that United violated arty duty to Defendants. To the contrary, United fulfilled all of its duties to Defendants. Moreover, it is specifically denied that the Bill of Lading is not correct. To the contrary, the Bill of Lading is correct and clearly states that Defendants, as the shippers, consignors and consignees of their goods, have an absolute obligation to remit payment to United for its moving services. -5- 53. Denied. It is specifically denied that United knew prior to the execution of the Bill of Lading that Defendants had allegedly issued payment to Worldwide. To the contrary, United did not know that Defendants allegedly paid Worldwide for United's services. Specifically, the Bill of Lading that United issued to Defendants was not marked prepaid. Moreover, the Bill of Lading imposed an absolute obligation on Defendants to pay United for its moving services. Thus, even if Defendants did issue a payment to Worldwide, such payment would not remove Defendants' obligation to pay United, because Defendants admit that United has not received payment for its moving services. See id_. at ¶~ 30-32. Thus, under the terms of the Bill of Lading, United's Tariff and the ICC Termination Act, Defendants remain liable to United. The remaining averments contained in paragraph 53 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is required, it is specifically denied that United should have known of Defendants' alleged payment to Worldwide. To the contrary, based on the terms of the Bill of Lading, Defendants did not know and had no reason to believe that Defendants would issue a payment to Worldwide for United's moving services. 54. Denied. It is specifically denied that United knew of Defendants' alleged payment to Worldwide. To the contrary, United did not know that Defendants allegedly paid Worldwide for United's services. Further, even if Defendants (lid issue a payment to Worldwide, such payment would not remove Defendants' obligation to pay United, because Defendants admit that United has not been paid for its services. See id. at ¶¶ 30-32. Moreover, it is specifically denied that an agreement existed between United and Worldwide concerning -6- prepayment, Defendants or Defendants' move. To the contrary, no such agreement existed between United and Worldwide.2 The remaining averments contained in paragraph 54 of' Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is required, it is specifically denied that United had a duty to mark the Bill of Lading prepaid. To the contrary, United had no indication that Defendants' move was prepaid, and United did not have a duty to mark the Bill of Lading prepaid. Specifically, Defendants signed the Bill of Lading despite the fact that the Bill of Lading does not state that it is prepaid. Moreover, the back of the Bill of Lading expressly states that Defendants, as the shippers, consignors and consignees of their goods, are directly responsible to United for payment for the services rendered to Defendants pursuant to the Bill of Lading. 55. Denied. The averments contained in paragraph 55 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is required, it is specifically denied that the Bill of Lading or any other document created and/or produced by United misled Defendants to believe that Worldwide had a contractual duty to pay United for its moving services. To the contrary, the Bill of Lading and all other documents produced by United clearly state that Defendants have an absolute obligation to pay United for its moving services. Specifically, the Bill of Lading expressly states that Defendants, as the shippers, consignors and consignees of their goods am di[rectly responsible to United for payment for the services rendered to Defendants pursuant to the Bill of Lading. Moreover, Defendants attach to their reply a document entitled, "Binding Estimate Cost of Service." Although Defendants assert that this document establishes that United misrepresented to 2 Defendants' specific reference to the Transportation Services Agreement between United and Worldwide in paragraph 56 of Defendants' new matter, and the fact that it has no bearing on Defendants' obligation to pay United. will be discussed in response to Defendants' new matter paragraph 56. Defendants that the Bill of Lading was prepaid, United's name does not appear anywhere on this document and nothing on this document gives any indication that it was created by United. In fact, United only became aware of this document as a result of it being produced by Defendants. Thus, the Binding Estimate Cost of Service does not affect Defendants' absolute obligation to pay United for its services. Moreover, Defendants fail to refer to the "Estimate/Order for Service" that United provided to Defendants, which is not marked pre-paid and which specifically identifies Defendants as both the shippers and consignees of their goods. See the "Estimate/Order for Service", a copy of which is attached hereto as Exhibit "A." Accordingly, as shippers, consignors and consignees of their goods, Defendants have an absolute obligation to pay United for its services pursuant to the Bill of Lading, United's Tariff and the ICC Termination Act. By way of further reply, it is specifically denied that the Bill of Lading is void. To the contrary, the Bill of Lading is an enforceable contract and its terms are supported by Federal law. See Maislin, 497 U.S. at 127; see also Bowser, 390 F.2d at 195. 56. Denied. It is specifically denied that Defendants were fomed to sign the Bill of Lading. To the contrary, Defendants signed the Bill of Lading of their own freewill and, therefore, accepted full responsibility to pay United for its services. Moreover, it is specifically denied that United knew that Defendants allegedly paid Worldwide for United's services. To the contrary, United has no knowledge of Defendants' alleged payment to Worldwide, and any such payment does not remove Defendants' absolute obligation to remit payment to United pursuant to the terms of the Bill of Lading, United's Tariff and the ICC Termination Act. The remaining averments contained in paragraph 56 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is required, it is specifically denied that United failed to perform under the Bill of Lading in good -8- faith. To the contrary, United fulfilled all of its obligations under the Bill of Lading in good faith by moving Defendants' goods from Carlisle, Pennsylvania to Metairie, Louisiana. It also is specifically denied that Defendants were misled as to the essential terms of the Bill of Lading. To the contrary, the terms of the Bill of Lading clearly provide that Defendants, as the shippers, consignees and consignors of their goods, have an absolute obligation to pay United for its services. Further, it is specifically denied that United had a duty to inform Defendants of the existence of the Transportation Services Agreement (incorrectly referred to by Defendants as the "Trade Services Agreement" and hereinafter referred to as the "TSA"). To the contrary, United had no duty to tell Defendants about the existence of the TSA becanse the TSA has no beating on the Bill of Lading or United's relationship with Defendants. Lastly, Defendants assert that the TSA materially affects United's alleged relationship with Worldwide, and that it was fraudulent for United not to tell Defendants about the TSA prior to Defendants signing the Bill of Lading. Admittedly, Defendants make this assertion without ever having seen a copy of the TSA. Significantly, even a cursory review of the TSA, which is attached hereto as Exhibit "B", reveals that it has no bearing on Defendants' absolute obligation to pay United for its moving services under the Bill of Lading, United's Tariff and the ICC Termination Act. 57. Denied. It is specifically denied that United influenced Defendants to sign the Bill of Lading. To the contrary, Defendants signed the Bill of Lading of their own freewill and, therefore, accepted full responsibility to pay United for its services. Moreover, it is specifically denied that United knew of Defendants' alleged payment to Worldwide. To the contrary, United did not know or have reason to know that Defendants allegedly paid Worldwide for United's services. Specifically, the Bill of Lading that United issued to ]Defendants was not marked prepaid. Further, the Bill of Lading required direct payment from Defendants to United for -9- United's services. Thus, even if Defendants did issue a payment to Worldwide, such payment would not remove Defendants' obligation to pay United because Defendants admit that United has not received payment. See id. at ¶¶ 30-32. The remaining averments contained in paragraph 57 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is required, it is specifically denied that that the Bill of Lading cuntains misrepresentations or that it should be declared a void contract. To the contrary, the Bill of Lading is clear, accurate and enforceable. Specifically, the Bill of Lading clearly provides that Defendants, as the shippers, consignors and consignees of their goods, have an absolute ob][igation to pay United for its moving services. Moreover, it is specifically denied that Defendants were misled by United by not being told of the existence of the TSA. To the contrary, the TSA has no effect on Defendants' absolute obligation to provide payment to United for its services under the Bill of Lading, United's Tariff and the ICC Termination Act. 58. Denied. The averments contained in paragraph 58 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is required, it is specifically denied that United is barred :fi.om recovering against Defendants based upon the principal of equitable estoppel as applied in the case of EF Operating Corp. v. American Buildings, 993 F.2d 1046 (3d Cir. 1993). To the contrary, EF Operating Corp. does not support Defendants' position that United is estopped from recovering against Defendants. Specifically, in EF Operating Corp.~ the court held that a carrier could not seek payment from a consignee where the bill of lading was marked "prepaid" and the consignee paid the shipper/consignor for the frei~t charges under the bill of lading. See EF Operatin~ Corp., 993 F.2d at 1051. Unlike EF Operating Corp., the Bill of Lading at issue that Defendants -10- executed is not marked "prepaid." Thus, Defendants, who are the shippers, consignors and consignees of their goods, remain primarily liable for payment of United's services. By way of further reply, the affirmative defense of equitable estoppel does not preclude summary judgment from being entered in favor of United because equitable defenses cannot stop a cartier from fully recovering moving charges that are based on published rates. See Maislin Industries, 497 U.S. at 2766 (equitable defenses cannot preclude carrier from collecting full amount of moving charges). 59. Denied. It is specifically denied that United had any dealings with Defendants prior to Defendants' July 2001 move from Carlisle, Pennsylvania to Metairie, Louisiana. To the contrary, United had no dealings with Defendants prior to Defendants' July 2001 move. Moreover, even if United did have contact with Defendants prior to their July 2001 move, that fact would be immaterial to United's motion for summary judgment because it would not remove Defendants' absolute obligation to pay United for its services under the Bill of Lading, United's Tariff and the ICC Termination Act. Moreover, it is specifically denied that Worldwide's alleged representations to Defendants regarding their move have any bearing on Defendants' obligations under the Bill of Lading. To the contrary, United has no knowledge of what Worldwide told Defendants because Worldwide is a separate and distinct entity from United, over which United has no control or duty to control. Further, Worldwide's alleged representations to Defendants are immaterial to United's motion for summary judgment because the Bill of Lading clearly imposes an absolute obligation on Defendants to pay United for its services. The remaining averments contained in paragraph 59 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is required, it is specifically denied that Worldwide is a consignor of Defendants' goods. To the -11- contrary, Worldwide is not the consignor of Defendants' goods. Instead, Defendants are the shippers, consignors and consignees of their goods. Thus, pursuant to the terms of the Bill of Lading, United's Tariff and the ICC Termination Act, Defendants have an absolute obligation to pay United for its moving services. Moreover, it is specifically denied that Worldwide is United's agent. To the contrary, Worldwide has never served as United's agent, nor has Worldwide ever been vested with authority to accept payment on behalf of United. 60. Denied. The averments contained in paragraph 60 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is required, it is specifically denied that United owed Defendants any duty other than to fully perform under the Bill of Lading, which United fulfilled. Further, it is specifically denied that any document in this case can or should be construed to prevent United from recovering payment for its services from Defendants. To the contrary, no document can or should be construed to limit Defendants' obligation to pay United. Moreover, the Bill of Lading, United's Tariff and the ICC Termination Act, which are the only documents that govern United and Defendants' relationship, all impose an absolute obligation on Defendants to pay United for its services. 61. Denied. The averments contained in paragraph 61 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is required, it is specifically denied that Worldwide is United's agent. To the contrary, Worldwide has never served as United's agent, nor has Worldwide ever been vested with authority to accept payment on behalf of United. Moreover, the Bill of Lading clearly provides that Defendants, as the shippers, consignors and consignees ofllheir goods have an absolute obligation to pay United for its services. -12- 62. Denied. The averments contained in paragraph 62 of Defendants' new matter constitute conclusions of law to which no responsive pleading is required. To the extent that a reply is required, it is specifically denied that Worldwide is United's agent. To the contrary, Worldwide has never served as United's agent, nor has Worldwide ever been vested with authority to accept payment on behalf of United. WHEREFORE, plaintiff, United Van Lines, LLC, respectfully requests this Court to enter an Order granting summary judgment in plaintiff's favor and against defendants, Antonio Lopez and Michelle Lopez, with respect to all of plaintiff's claims against defendants and defendants' counterclaim against plaintiff. Dated: June 1,2004 JOS~HUA ltORN, ES DAVID T. GARNES, ESQUIRE FOX ROTHSCHILD LLP 2000 Market Street, 10th Floor Philadelphia, PA 19103 Telephone: (215) 299-2000 Telecopier: (215) 299-2150 Attorneys fi~r Plaintiff United Van Lines, LLC -13- EXHIBIT "A" EXHIBIT "B" (LL85) TRA/~SPORTATION SERVICES AGR]EEMENT This Agreement for transportation services (the "Services',) is entered into between Worldwide Relocation Services ("Shipper") and United Van Lines, LLC. operating as a motor contract carrier under ICC-issued permit no. MC 67234 and such of its agents then operating under an active agency agreement with United Van Lines, LLC. which hold a current, valid contract carriage registration from the Department of Transportation ("Carrier"). In consideration of the mutual promises herein, the parties agree as follows: 1. Shipper agrees to engage Carrier on a non-exclusive basis and Carrier agrees to provide Shipper the Services specified herein. Shipper and Carrier agree that this is a Contract Carriage pursuant to 49 U.S.C. 14101(b) . 2. The terms and conditions regarding the Services, including the commodities, scope and territory, term, compensation, Referenced Tariffs, liability of Carrier and Rules Governing the Contract are those specified in Appendix A attached and form a part of this Agreement. 3. Carrier shall make available the necessary equipment, personnel and other materials generally used in the movement of goods, maintain all necessary licenses and perm/ts, and maintain all required insurance coverages, in conformance with all applicable requirements of governmental authorities. 4. This Agreement shall be subject to and be interpreted in accordance with federal laws applicable to the Services and in all other respects with the laws of the State of ]Missouri. 5. This Agreement, including Agreement of the parties and may writing signed by both parties. Appendix A, constitutes the entire not be amended or altered except in 6~ The term of this Agreement shall be for the period specified in Appendix A. Either party may terminate this Agreement upon 30 days written notice to the other. This Agreement shall be effective as of the date received by Carrier. United Van Lines, LLC. ~5~hn M. Logr~s~o Title: Vice President, Sales Date: 3/27/01 Worldwide Relocation Services Title:~,<le ~-~.~dc~ APPENDIX A This Appendix A shall form a part of the Transportation Services between United Van Lines, LLC. ("Carrier,,) and Worldwide Services ("Shipper,,). Agreement Rslocatlon ITEM 01 - COM~ODITY: Household Goods as defined in 49 U.S.C. 13102(10} ITEM 02 - SCOPE AND TERRITOE¥: Interstate shipments between points in the United States (Excluding Noncontiguous Domestic Trade as defined in 49 U.S.~ 13102(15}). Carrier's services are limited to the transportation of the Commodities, within the Scope and Territory specified by this Appendix A. ITEM 03 - TEEMS: The term of this Agreement shall be for a period[ of 12 effective date and shall automatically renew for a like terms herein. months from the period upon the ITEM 04 - REFERENCED TARIFFS: Household Goods, HGB 400-M/104-F. Motor Vehicles, (as such term is applicable section(s). defined therein) UVLN 417-E The Referenced Tariffs are those published or maintained from time to time by the Carrier which are incorporated by reference as if more fully set- forth herein. Shipper acknowledges actual notice of the terms and conditions expressed or contained in the Referenced Tariffs. ITEM 05 - COMPENSATION TO CARRI~: Carriers, compensation for transportation services shall be determined in accordance with the then current Referenced Tariff(s) identified herein, subject to the following modifications: 2.00 Transportation rates under Sections 2 and 3 except for Items 190 Valuation charges, Item 210 Storage-in-Transit, Warehouse Handling, Pickup and Delivery for Storage-in-Transit, and Third Party Services of the Referenced Tariff 400-M/104-F shall be reduced by 58.0%. Storage-in-Transit, warehouse handling and pick~up and delivery rates in the Referenced Tariff 400-M/104-F shall be reduced by 40.0%, such rates will be the rates applicable at the warehouse location where the shipment is actually stored. For shipments of or including Motor Vehicles, transportation rates under Sections 3, 4, 5 and 6 of the Referenced Tariff UVLN 417-E shall apply. Rates shall be those in effect 3/22/00~ ITEM 06 - RATES FIXED: Rates provided for herein shall be in effect for the first 12 months of this Agreement. Thereafter, unless otherwise agreed upon by the parties, rates shall be based upon the then current Referenced Tariffs. ITEM 07 - DOCUMENTATION: Carrier shall prepare or cause to be prepared bills of lading, inventories, weight certificates, receipts and all other such documentation as may be required by the Referenced Tariffs, or federal, state or local laws, rules or regulations governing the services to be performed hereunder. At the request of Shipper, Carrier agrees to provide written or electronic copies of the rate, classification, rules and practices, upon which any rate applicable to the Services provided is based. Carrier agrees to retain records for one (1) year after the termination of this Agreement, or for such period of time as may be required by federal or state laws, rules or regulations. The provisions, terms and conditions of the documents identified in this paragraph shall be deemed a part of this Agreement. To the extent any such document shall contain matters which conflict with this Agreement or any part thereof, the terms of this Agreement shall govern. ITEM 08 - SEASONAL RATE ADJUSTMENT: Carrier's compensation will not include the May 15 to October 1 Peak Season Adjustment found in the Referenced Tariff(s) 400-M/104-F. ITEM 09 - STORA~E-IN-TR3tNSIT: Carrier agrees that the time period before a shipment converts from storage-in-transit to permanent storage shall be one hundred and eighty (180) days. 3,00 ITEM 10 - CARRIER'S LIARTLITy: Carrier's liability for loss or damage to goods being transported shall be determined in accordance with the relevant provisions of the Referenced Tariffs, modified as provided in this section. Carrier's liability shall be subject to 49 U.S.C. 14706 and Part 1005 of Title 49 of the code of Federal Regulations, or any successor thereto, with regard to claims and actions for loss or damage to property transported pursuant to this Agreement. Carrier's liability on an item- by-item basis and maximum liability for loss and damage shall be as follows: HOUSEHOLD C~ODS: A. Full Value Protection, which means thai~ for any items lost or damaged while in Carrier's custody, carrier will either repair, replace with like-kind or pay the replacement value of such item, at Carrier's option, and in accordance with Item 1303 of exceptions Tariff 104-F of the Referenced Tariffs. (1) Carrier's maximum liability for loss or damage shall be the lesser of $ 5.00 per pound times the actual weight of the shipment up to a maximum value of $ 75,000. There shall be no charge for such coverage. Coverage increasing the maximum level of liability set forth A. (1) above, may be obtained by declaring such addition~ on the Bill of Lading. The char~es for such additional amount shall be $ .40 per $100.00 additional value. B. Notwithstanding the foregoing, Carrier's liability for loss or damage to Extraordinary Value Items (an Extraordinary Value Item shall mean an item whose value exceeds $100.00 per pound based upon actual weight) shall be limited to $100.00 per pound per article unless such items are disclosed in writing to Carrier by Shipper or Shipper's employee. Carrier shall provide Shipper or Shipper's employee with Carrier's form for the purpose of making such disclosure. Upon disclosure of the Extraordinary Value Items to Carrier, Carrier's liability for loss or damage to such item shall be as provided in Paragraph A h.ereof. MOTOR VEHICLES: Notwithstanding the foregoing Carriers, liability for loss or damage to Motor Vehicles shall be the lesser of the cost to repair or the maximum amount under Section 3, 4, 5 or 6 in the Referenced Tariff based on the Section selected by the Shipper~ 4.00 Carrier warrants that the equipment used in performing the described services shall at the time Carrier makes such equipment available to Shipper for the transporting of shipper's property be in good repair, and in conformance with all applicable requirements, rules and regulations of the Department of Transportation and other regulatory agencies having jurisdiction over Carrier's operations. However, Carrier's warranty shall not extend to delays or other service failures due to or resulting from acts of God, civil commotion, riots, strikes or ~ny other contingency not within the control of Carrier. ITEM 11 - APPLICABILITY: This Agreement shall apply to all shipments moviag on a prepaid or charge basis, provided said shipments are invoiced to shipper and booked with agents of United, under the provisions of this Agreement. ITEM 12 - CLAIMS SETTLEMENT: Carrier agrees to offer settlement of cargo damage claims not exceeding $500 within 30 days of the receipt of completed claim forms at United Van Lines Corporate Headquarters. Failure to meet this requirement will result in payment of $25.00 per day to Shipper and/or its subsidiary companies for every day past the deadline, up to a maximum of $250.00. ITEM 13 - DELAYS: For household goods shipments, Carrier agrees to pay Shipper per diem claims for late pickup or delivery based upon the governing provisions as published in Item 1305 (Guaranteed Pickup & Delivery) of HGCB Exceptions Tariff 104-F of the Referenced Tariffs. ITEM 14 - CREDIT SERVICE FEE: Carrier will extend the credit service fee time period from seven (7) working days to thirty (30) calendar days from the date of the invoice before assessing a one (1) percent penalty for late payment. ITEM 15 - FUEL SURCHARGE: A fuel-related cost price adjustment (surcharge) will be applied when the cost (national U.S. average price per gallon]~ as determined by the Department of energy (DOE)/Energy Information Administration (EIA) reaches index guidelines. The Fuel-related cost price adjustment (surcharge) shall be applicable to this Agreement on linehaul transportation and pickup and delivery charges on storage-in-transit shipments. 5.00 ITEM 16 - BINDING ESTIMATES: Carrier agrees to provide binding estimates under this Agreement when requested by Shipper provided Shipper does not solicit competitive bids on individual moves. 6 .00 CERTIFICATE OF SERVICE I, DAVID T. GARNES, ESQUIRE, hereby certify that on the 1st day of June 2004, a true and correct copy of the reply of plaintiff, United Van Lines, LLC, to new matter of defendants, Antonio Lopez and Michelle Lopez, to the motion for summary judgment, was served upon the following individual, via United States first class mail, postage prepaid, and addressed as follows: John H. Broujos, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Attorney for Defendants Antonio Lopez and Michelle Lo~ez -~ -- UNITED VAN LINES, LLC, Plaintiff VS. ANTONIO LOPEZ and MICHELE LOPEZ, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTy, PENNSYLVANIA CIVIL ACTION - LAW 03-3442 CIVIL IN RE: P~LA1NTIFF'S MOTION FOR SUMMARY JUDGMENT B~EFORE BAYLEY AND HESS~_J.J. ORDER AND NOW, this /fi" day of July, 2004, following argument thereon, the motion of the plaintiff for summary judgment is DENIED. David T. Games, Esquire For the Plaintiff John H. Broujos, Esquire For the Defendants :rlm BY THE COURT, t,,~V].(,.iNCIq.LO~d qkl.l. -JO FOX ROTHSCHILD LLP BY: Joshua Horn IDENTIFICATION NOS. 71799 2000 MARKET STREET, TENTH FLOOR PHILADELPHIA, PA 19103-3291 (215) 299-2000 UNITED VAN LINES, LLC, Plaintiff, Vo ANTONIO LOPEZ and MICHELLE LOPEZ, H/W, Defendants. ATTORNEYS FOR PLAINTIFF UNITED VAN LINES, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 03-3442 STIPULATION OF DISMISSAL Plaimiff, United Van Lines, LLC, and defendants, Antonio and Michelle Lopez, by and through their attorneys stipulate and agree to mark the complaint and counterclaim in these proceedi~]gs~HO~settled' discontinued and ended, upon payment of yc~~. ~,,...._~ JOSHU RN, ESQUIRE JOl:tN4ald. BROUJOS, EgQUIRE FOX ROTHSCHILD LLP 2000 Market Street, 10th Floor Philadelphia, PA 19103 Attorneys for Plaintiff United Van Lines, LLC BROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, PA 17013 Attorneys for Defendants Antonio and Michelle Lopez Dated: November 5, 2004