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HomeMy WebLinkAbout07-2011Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO 0-7 _ o? o JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR YOU 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 646494.1 s Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW C? NO. 67- aorl l JURY TRIAL DEMANDED COMPLAINT NOW COMES Plaintiff, Computer Support, Inc. ("Plaintiff' or "CSI"), by and through its counsel, Rhoads & Sinon LLP, and files the within Complaint as follows: 1. CSI is a corporation organized and existing under the laws of the Commonwealth with a business address of P.O. Box 2429, Mechanicsburg, Pennsylvania 17055-2429. 2. CSI is a provider of computer software for the trucking industry. 3. Defendant Smart Transportation Services, Inc. ("Defendant" or "STS") is a Texas corporation with a registered office located at 4721 Garth Road, Suite 200, P.O. Box 913, Baytown, Texas 77521. 4. STS is engaged in the trucking business. I? 5. On or about July 5, 2006, CSI entered into a License and Support Agreement with STS (the "Agreement"), whereby CSI agreed to license its CSI.Road computer software to STS for a license fee of $65,000.00. A true and correct copy of the Agreement is attached hereto as Exhibit "A" and is incorporated herein by reference. 6. STS paid 33% of the license fee, or $21,666.67, upon execution of the Agreement. 7. STS promised to satisfy the remaining balance, $43,333.33, by making six (6) monthly payments of $7,222.22 (with the sixth and final payment differing slightly and totaling $7,222.23), subject to an eighteen percent (18%) per annum late payment service charge. 8. Also, pursuant to ¶ 3.1 of the Agreement, STS agreed to pay an annual charge of $11,700.00, or eighteen percent (18%) of the license fee, for license and continuing support services provided by CSI. 9. The combined total of the amounts identified in Paragraphs 7 and 8 above, less any service charges for late payment, equals $53,033.33. 10. To date, STS has tendered only $18,219.54 in satisfaction of its outstanding debt due and owning to CSI. 11. STS has purposefully failed and refused to fully satisfy the following invoices: Invoice No. Date of Invoice Amount Due 8245 08/08/2006 $4,810.58 8271 08/15/2006 $9,177.50 8330 10/31/2006 $3.56 2 } Invoice No. Date of Invoice Amount Due 8331 11/30/2006 $1.78 8332 12/29/2006 $7,224.00 8452 10/13/2006 $1,385.00 8578 11/08/2006 $470.00 8608 11/15/2006 $375.00 8792 01/04/2007 $11,700.00 8994 03/08/2007 $1,970.00 TOTAL ................................................... $37,117.42 A true and correct copy of the Statement sent to STS reflecting these outstanding invoices is attached hereto as Exhibit "B" and is incorporated herein by reference. 12. CSI has made several requests for payment of the outstanding invoices. 13. STS has failed and refused to respond to CSI's requests. STS has also denied CSI access to its CSI.Road computer software system. 14. In light of STS's conduct, no payment is likely to be forthcoming. COUNTI (Breach of Contract) 15. Plaintiff incorporates the above allegations as though fully set forth herein. 16. Pursuant to the Agreement, CSI provided software, performed services, and promptly invoiced STS for all work performed. 17. STS has not paid CSI for the license fee and for continuing support services, and CSI has been damaged as a result. 3 } 18. STS's failure to pay CSI constitutes a breach of the Agreement. WHEREFORE, Plaintiff, Computer Systems, Inc., demands judgment in its favor against Defendant, Smart Transportation Services, Inc., in the total amount of $37,117.42, together with interest, costs, reasonable attorneys' fees, and any other amount this Court deems just and proper. COUNT II (Alternative Count - Account Stated) 19. Plaintiff incorporates the above allegations as though fully set forth herein. 20. CSI sent STS invoices detailing the amount of debt owed by STS to CSI. 21. The invoices accurately reflect the amount due by STS to CSI pursuant to the Agreement. 22. STS has failed and refused to pay the amounts due. WHEREFORE, Plaintiff, Computer Systems, Inc., demands judgment in its favor against Defendant, Smart Transportation Services, Inc., in the total amount of $37,117.42, together with interest, costs, reasonable attorneys' fees, and any other amount this Court deems just and proper. COUNT III (Alternative Count - Promissory Estoppel) 23. Plaintiff incorporates the above allegations as though fully set forth herein. 4 4 24. As set forth above, STS promised to pay CSI for a licensee fee and for continuing support services. 25. CSI substantially performed all of its contractual obligations to STS and has delivered to STS proper invoices for payment. 26. It was reasonable for STS to expect that its promise to pay for the license fee and for continuing support services would induce CSI to provide the software and services requested. 27. CSI did, in fact, rely on STS's promise to pay. 28. STS has benefited by failing to pay CSI $37,117.42. 29. Injustice will result if STS's promise to pay CSI is not enforced. WHEREFORE, Plaintiff, Computer Systems, Inc., demands judgment in its favor against Defendant, Smart Transportation Services, Inc., in the total amount of $37,117.42, together with interest, costs, reasonable attorneys' fees, and any other amount this Court deems just and proper. Respectfully submitted, RHOADS & SINON LLP By: odd J. Shill John R. Martin RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 5 APR-Q9-2007 13:13 From: To:717 231 6698 P.2/2 VERIFICATION Fred Nichols, deposes and says, subject to the penalties of 18 Pa.C.S. § 4904 relating to unworn falsification to authorities, that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belicf. Fred Nicho s Date: ____?Y/ E xhibit "A" m E 5 CSI ( W COMPUTER SUPPORT, INC. May 26,2006 Patrick Lashford Smart Logistics 4721 Garth Road Suite A200 Baytown, Texas 77521 Dear Patrick Lashford: P.O. Box 2429 Mechanicsburg, PA 17055 Telephone (717) 691-6707 Fax (717) 691-7303 Email: tnichois@csiroad.com Thank you for the opportunity to demonstrate CSI.Road software applications. My proposal for the applications listed is enclosed. The software applications and respective investment are: CSI.Road for Truckload, Brokerage, and Warehouse: $65,000.00 1. Core Applications: Order Entry, Dispatching, Freight Billing, Driver Settlement, Fuel & Mileage, Safety, Accident reporting, Barcoding, and Warehouse Management 2. Accounting: Accounts Receivable, Accounts Payable, Payroll, General Ledger CSI personnel are also available for computer related consulting services such as: data conversion, application modifications, or integration with other business applications. Other applications such as scanning and web based applications can be added at a later date. The license fees noted in email dated May 25,2006 are valid for one year. This proposal is valid until June 25,2006. Sincerely, F. R. Nichols Page 1 of 14 CSF E P.O. Box 2429 W S Mechanicsburg, PA 17055 Telephone (717) 691-6707 COMPUTER SUPPORT, YNC. Fax (717) 691-7303 Email: fnichols@csiroad.com Recommended Computer Hardware • Contact local hardware integrator for a Windows NT 4.0 or windows 2000 (or later version)Server, network LAN/WAN, and computer hardware installation including all operating software. For remote access (WAN) we recommend Citrix metaframe terminal server configuration or a Terminal Server configured to utilize Terminal Services Web Connection.. Frame Relay, ISDN, Dedicated lines and an Internet communication options; selection of which will impact application response from user's perspective. • PC's: Pentium series with 128meg of ram is recommended. • Dedicated DUAL processors 1 Gig or higher. Dual processors allow requests to be processed faster (read & write) the dual processors allow SQL to handle the requests better. If your choice is to go with one processor, please make sure you can upgrade your server to two processors in the future. 1 gig of RAM. Make sure the server allows you to increase your memory in the future. Multiple hard drives for the data using RAID 10 configuration. The actual data is written and mirrored to these drives. Depending on the size consider "file group" structure. • Network : Switchable Hubs These will reduce your network traffic. CATS cable to support 100 megabit. Network cards should be 10/100 • Monitors: Recommend 17" SVGA monitors- • Printers: Laser printers are recommended for majority if printing. If delivery receipts are multiple part forms, we recommend Okidata series of dot matrix printers. • Communication: Internet accesses to SQL is required to obtain assistance from CSI. Internet accesses to SQL is required to obtain assistance from CSI, and for online training purposes a terminal server utilizing Terminal Services Web Connection to allow shadowing. • Operations Software: Microsoft SQL 7 or 2000. Windows 98 or Higher, Crystal report writer if you want to generate reports or access current CSI.Road reports. Terminal server in WAN setup. Note: (1) Dell servers are very popular (2) CSI Personnel do not normally provide hardware or operating software support services. Any support provided by CSI staff will be charged at your contracted rate. (3) Verify your network integrator or hardware supplier are "Microsoft certified" (4) At least during initial setup subscribe to Microsoft's premier support plan. Page 2 of 14 P.O. Box 2429 W Mechanicsburg, PA 17055 CS S Telephone (717) 691-6707 Fax (717) 691-7303 COMPUTER SUP" RT, INC. Email: fnlcholsocsiroad.com Selection &Implementation 1. Assemble a team of employees who are responsible for the successful implementation of software applications. 2. Define 6 major business objectives to be accomplished by installing new systems. Quantify the objectives by "net improvement" and their respective timeframe so they can be measured and used as benchmarks. 3. Signed Contract and Down Payment 4. Delivery of software and documentation* 5. Training* A. System Overview and Assistance in development of Implementation Plan. Four to Five day session usually at CSI Offices (1) We recommend that a minimum of two-five people attend. The goal of training is to understand system flow, entering master file information, and processing historical transaction records through system. B. At Smart Logistics Offices users should: Continue to enter/edit master file records and process transactions to emulate normal business operation. This process should take 4-8 weeks. During this process CSI customer service reps are available for telephone support during normal business hours and when needed can "shadow" users via the internet (1) Users should process at least one week's of representative transactions through the system during this timeframe and prior to going live. 6. Going Live (customer's decision and control), usually 6 to 18 weeks after system overview of `Core' system. * Scheduled on receipt of signed contract and down payment. (1) Service included as part of license fee. Page 3 of 14 FROM :Smart LcgiSticS FAX NO. :9364942742 Jul. 03 2006 0951AM P2 s CWW 0 cams StIPP+ORTr IN& Ann : Patrick Lashford Smart Logistic; 4721 G anh Road Suite A200 Baytown,Texaks 77521 INVOICE # 65319 P.C. Box 2420 Mochsnicalmrg. PA 17055 Telephone (717) 091.6707 Fax (717) 661.7903 Email: thiaholsfaeiroad.calm Applications: As referenced in this cover letter CSLRoad Items Referenced on page # I 3b% AAI.141b (,rl payment due t6* %) with signed software license agreement: $39$N*:86- Due date: With signed contract Due Dates for balance of license royalty payments: 1, 2; 20 % due 90 days after del"wery ot softweaw- Forward remiuanc, , (Payable to mputer Support Inc), to PkN j PA j W'ew-r NOT Rt-Cel %)ep Pz4 One- pep- ANNuN, Scr2-oice Ohoe?e- Page 4 cf 14 Attn: F. R. Nichols Computer Support Inc. 47 West Main Street Mechanicsburg, PA 17055 N P.O. Box 2429 W r Mechanicsburg, PA 17055 S Telephone (717) 691-6707 Pax (717) 691-7303 COiA?lPtJ'/`ER SUPPORT INC. Email: fnichols@csiroad.com CONTINUED SUPPORT PROGRAM Effective 30 days after live transactions are processed within "core" applications of CSTRoad Consists of the following services: Telephone Support: Users contact CSI personnel via telephone or modem to resolve concerns with licensed applications during normal business hours (8AM-5PM Eastern Time),Monday through Friday. After hour service program available at hourly rate of $125, minimum charge, $100 per call. Free Upgrades: Upgrade licensed applications to current CSI software releases. In those instances customer begins live processing without training, parallel processing, or continued support program as described, all support provided is billed at the contracted man hour rate. Software Modifications CSI will do modifications on request. The signed form contained in Annex A is required for each modification requested. Page 5 of 14 LICENSE AND SUPPORT AGREEMENT This AGREEMENT (this "Agreement") made and effective as of the day of , 2006, (hereinafter referred to as the "Effective Date") is by and between the SMART LOGISTICS , having a principal place of business at 4721 Garth Road Suite A200, Baytown, Texas, 77521 ("LICENSEE"), and Computer Support, Inc., a Pennsylvania Corporation, ("C.S.I."), having a place of business at 47 West Main Street, Mechanicsburg, Pennsylvania 17055 U.S.A. RECITALS WHEREAS, C.S.I. is the developer and owner of certain design, engineering, fabricating, trade secret, trademark, tradename, applications processing and related intellectual property rights necessary and useful in the design, production, and applications of a full range of software packages and related material ("1P" rights) used and useful in managing all aspects of the trucking, shipping and related industries, including its Motor Carriers software applications designated "CSI.Road" (also referred to herein as the "Licensed Program Materials"); WHEREAS, C.S.I. possesses the further engineering and design capability to provide to LICENSEE, on a regular and ongoing basis, all necessary specialty design and technical support to enable and assist LICENSEE to install, utilize, customize and manage the Licensed Program Materials, as well as to develop additional, related systems, and derivatives of existing programs as may be suitable for deployment in the trucking and common carrier by road industry, from time to time; WHEREAS, LICENSEE is engaged in the business of trucking, hauling and :shipping by road in USA and within specific areas as serviced on the date hereof through truck terminals, each connected to LICENSEE'S server located in Baytown, Texas; WHEREAS, LICENSEE desires (a) to acquire from C.S.I. a license to use the Licensed Program Materials under the terms and conditions set forth in this license and support agreement (the "License Agreement") and (b) to be supported by the continuing services of C.S.I. in connection with Licensed Program Materials, including the application of know-how, engineering, design and technical support from and through the C.S.I. staff and facilities; NOW THEREFORE, the parties to this Agreement, intending to be legally bound, and for good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, hereby agree as follows: ARTICLE I LICENSE AND SUPPORT SERVICES I.1. C.S.I. will furnish certain program materials and documentation to LICENSEE, and hereby grants to LICENSEE, and LICENSEE accepts, a nontransferable and nonexclusive license to use the Licensed Program Materials; provided, however, that such license shall not be deemed to apply to custom applications as may be specified in Annex A hereto and shall not include the release of any source codes to LICENSEE. Page 6 of 14 1.2 LICENSEE agrees with respect to the Licensed Program materials to accept the responsibility for (a) their selection to achieve LICENSEE'S intended results, (b) their installation, (c) their use, and (d) the results obtained therefrom. 1.3 C.S.I. shall, in consideration of the servicing fees provided for in Article III below, provide complete and continuing information, research, design and technical support and advice as may be requested from time to time by LICENSEE concerning the design, refinement and application of Licensed Program Materials, including the development of C.S.I. standard and special procedures, for application with Licensed Designs. If LICENSEE subscribes to C.S.I.'s Continuing Support Program, C.S.I. will provide to LICENSEE all technical upgrades and improvements as C.S.I. may make upon the Licensed Program Materials from time to time for no additional license fees . 1.4 The applications licensed to LICENSEE are: Order Entry/Dispatching, Freight Billing, Driver Settlement, Fuel and Mileage Reporting: Accounts Receivable/Payable, and General Ledger. 1.5 Specialized services may be provided from time to time by C.S.I. upon request for such services by LICENSEE. The parameters of any such requested service shall be clearly set forth by LICENSEE, and may include joint research and development of custom or specific applications as may be agreed to by C.S.I. pursuant to such request. By way of example, and not by way of limitation, specialized services may include computer-related consulting services including data conversion, application modifications and integration of programs with other related or unrelated business applications. ARTICLE II CHARGES 2.1 The one-time licensing charge for the licensed use by the LICENSEE (10 registered users, two companies) of the above-described licensed program materials shall be $65,000.00 ,including any down or pre-payment previously made. 2.2 Consulting services, including initial operating software setup and/or preparation of cost estimates for software modifications, shall be paid and payable to C.S.I. for services requested at the hourly rate of $125 for training and technical services. Travel and living expenses are also charged as may be required by C.S.I. in order to provide services in the appropriate circumstances, including for set-up and training work to be performed at LICENSEE'S premises in Baytown, Texas, and shall be promptly reimbursed by LICENSEE upon notice by C.S.I. at the rate incurred. Delayed or withheld payments may result in application shutdown. C.S.I.'s additional fees (Article III) commence on the 301h day after delivery of CSI.Road to LICENSEE. It being further provided that personnel of C.S.I. assigned to service the account and systems of LICENSEE shall be selected at the reasonable discretion of C.S.I. and that neither LICENSEE nor any affiliate of LICENSEE shall cause or allow such C.S.I. Page 7of14 personnel to quit employment with C.S.I. and become employed by LICENSEE or any of its affiliates for a period of two years after the termination of this License Agreement unless a finder's fee of no less than 50% of the first 12 months' compensation package for such personnel shall also be paid to C.S.I. upon such hiring. 2.3 All payments to be made by LICENSEE to C.S.I. under this License Agreement shall be made to C.S.I. at its offices as indicated in the Notices section of this License Agreement or at such other location as C.S.I. may notify LICENSEE. All references to "dollars" or "$" shall be to lawful currency of the United States. 2.4 In addition to the charges specified under this Agreement, the LICENSEE agrees to pay amounts equal to any applicable taxes resulting from this License Agreement, or. any activities hereunder, exclusive of property taxes and taxes based on net income. ARTICLE III ADDITIONAL FEES 3.1 Annual charge of 18% of license and modification fees for license and continuing support services provided by C.S.I. The percent quoted is subject to change on an annual basis. 3.2 Additional one-time license fees when numbers referenced in Article 112.1 are exceeded are as follows: $3,000 for each registered user $7,500 for each additional company 3.3 Late fee charges applicable to any past due invoice and the annual rate of 18% LICENSEE agrees to keep complete and accurate records of all data necessary for the determination and computation of royalties (number of users) and further agrees to permit such records to be examined to verify their validity after reasonable notice from C.S.I., such examination shall be conducted at the expense of C.S.I. by accountants designated by C.S.I. and acceptable to LICENSEE. ARTICLE IV CONFIDENTIALITY AND PROPRIETARY RIGHTS; INDEMNIFICATION 4.1 C.S.I. represents and warrants to LICENSEE: (a) That it owns the entire right, title and interest in and to the Licensed Program Materials, including, without limitation, the IP rights, and all proprietary rights therein, free and clear of all liens, known claims, security interests or other encumbrances; and (b) That neither the Licensed Program Materials, including, without limitation, the IP rights, nor any of the intended uses thereof, will infringe any patents, copyrights, trade secrets, or other proprietary rights of any third parties (including, without limitation, any present or former employees, consultants or shareholders of Page 8 of 14 C.S.I.); and C.S.I. has no reason to believe that any such infringement claims could be made. 4.2 LICENSEE and C.S.I. shall each take reasonable and continuing steps to protect the secrecy and confidentiality of information received (and designated as such by the party with proprietary interests in such information) under this License Agreement, using the same degree of care to protect the information that it takes with its own confidential information. The obligation of secrecy and confidentiality shall not apply to any information which: (1) is already known to the party receiving such confidential information; (2) is or becomes generally known to the public through no wrongful act of the party charged with protecting such confidentiality; (3) is received by a party without restriction from a third party; (4) has been or is famished by the party owning such proprietary interests to a third party without imposing restrictions against use and disclosure similar to those imposed on the party receiving such disclosure herein; or (5) must be publicly disclosed by such party pursuant to the requirements of law, judicial process or governmental regulation. This covenant shall continue for a period of two (2) years after the date of termination of this License Agreement. 4.3 Upon the reasonable request of C.S.I., LICENSEE shall assist C.S.I. in a reasonable way and at C.S.I.'s cost and expense, in executing such filings, documents, licenses and actions as may be required to protect the intellectual property and other rights of C.S.I. in the Licensed Program Materials within the Territory, and LICENSEE shall take or permit no action as may compromise or infringe upon such rights of C.S.I. within the Territory or otherwise. 4.4 LICENSEE shall not duplicate, distribute, translate, reverse engineer, de-compile, interpret or demonstrate the Licensed Program Materials. LIMITED WARRANTY 4.5 The Licensed Program Materials will perform generally as demonstrated, provided; that it is (a) operated in accordance with the instructions provided LICENSEE by C.S.I. and (b) used on a designed, standard, satisfactorily functioning computer in accordance with specifications provided to LICENSEE by C.S.I. 4.6 C.S.I. makes no representation or warranty, special or general, that the functions contained in the Licensed Program Materials will meet the LICENSEE'S requirements or will operate in the combinations which may be selected for use by the LICENSEE, or that the operation will continue without interruption or error, or that all program detects will be corrected. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LIMITATION OF REMEDIES 4.7 C.S.I.'s entire liability and the LICENSEE'S exclusive remedy shall be limited as follows: Page 9 of 14 In all situations involving performance or non-performance of Licensed Program Materials furnished under this License Agreement, LICENSEE'S remedy is (a) the correction by C.S.I. of program defects, or (b) if, after repeated efforts made in good faith, C.S.I. is unable to cause the program to operate as warranted, LICENSEE shall be entitled to recover only its actual damages to the extent set forth in the following paragraph and which shall in no event include consequential, special or punitive damages. C.S.I.'s liability for damages to the LICENSEE for any cause whatsoever, regardless of the form of action, whether in contract or in tort, including without limitation, an action sounding in negligence, shall be limited to a refund of the one-time licensing fee actually paid for non-functioning portion of licensed application and shall not include any refund of fees for services actually paid or invoiced in connection with such the non.-functioning portion, provided, however that such entitlement to refund shall be exclusive of fees and payments made for services rendered or hardware. ARTICLE V TERM OF AGREEMENT; TERMINATION 5.1 Unless earlier terminated as provided hereinafter, this Agreement is perpetual with the exception of Continued Support which is automatically renewed annually at the current prevailing rate . FAILURE TO PAY LICENSE FEES OR OTHER INVOICES WHEN DUE MAY RESULT IN INTERRUPTED OPERATION OF THE FAMILY OF CSI.ROAD PRODUCTS. 5.2 If at any time either party shall become insolvent, or if any party shall be immaterial default of any of its obligations under this License Agreement, or any of such party's representations or warranties set forth herein shall be determined to be materially false or incorrect or if formal proceedings shall be commenced to administer either party's affairs or to liquidate its assets, or, if the ownership of either party as presently constituted should change in such a way as to materially and adversely affect such party's ability to perform its obligations under this License Agreement, the other party may, at it option, and upon or after the expiration of thirty (30) days advance notice in writing given to the first party of its intention to do so (and, in the case the notice is given for default, if the default is not meanwhile cured), declare this Agreement terminated by a second written notice to the other party, and thereupon all licenses, rights and privileges of LICENSEE or of C.S.I., as the case may be, hereunder shall cease, except (a) that the licenses, rights and privileges granted under Article I hereof shall continue as to all Licensed Program Materials delivered prior to said termination of this License Agreement, (b) that LICENSEE shall have the right to continued use of such Licensed Program Materials without the benefit of continued service or subsequent improvements not existing as of the time of such termination and (c) that C.S.I., or its successors and assigns shall, to the extent permitted by applicable law, transfer and assign all source codes relevant to CSI.Road to an independent bank, trust company or law Page 10 of 14 firm of its selection which shall retain such source codes for the benefit of all C.S.I. LICENSEES. 5.3 No termination of this License Agreement by expiration or otherwise shall release LICENSEE from any of its obligations accrued hereunder or rescind or give rise to any rights to rescind anything done or any payment made or other consideration given to either party hereunder prior to the time such termination becomes effective. ARTICLE VI NOTICES 6.1 Notices of every nature to be given pursuant to this License Agreement shall be given in writing and addressed to the other party at the address stated below or at any other address notice of which is given by one party to the other in accordance with this Article VI: If to LICENSEE: SMART LOGISTICS If to C.S.I.: 4721 Garth Road Suite A200 Baytown, Texas, Telephone #: (832) 556-0500 Fax #: COMPUTER SUPPORT, INC. 47 West Main Street Mechanicsburg, PA 1.7055 Telephone: (717) 691-6707 Fax:(717)691-7303 . Any notice shall be deemed to have been duly given if and when regularly sent by electronic mail or fax (if confirmed by letter mailed within two (2) days thereafter) or if and when delivered by any other method furnishing receipt of delivery, including by recognized delivery service or by hand. ARTICLE VII MISCELLANEOUS 7.1 This License Agreement will inure to the benefit of and be binding upon the parties. This License Agreement is personal to the parties and may not be assigned or otherwise transferred by either of them without the prior, written consent of the other. 7.2 This License Agreement contains all of the terms and conditions agreed upon by the parties hereto, and supersedes all prior agreements (including any and all exchanges by Page 1 1 of 14 correspondence, telephone, e-mail, or memorandums of agreement), promises, covenants, arrangements, communications, whether representations or warranties, whether oral or written by any officer, employee or representative of any party, and no other agreement, oral or otherwise, regarding the subject matter of this License Agreement shall be deemed to exist or bind any of the parties hereto. 7.3 LICENSEE IRREVOCABLY AGREES, AND FULLY UNDERSTANDS, THAT ALL LAWSUITS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS LICENSE AGREEMENT, INCLUDING THOSE RELATING TO MATTERS OF PERFORMANCE OR RESULTING FROM THIRD PARTY CLAIMS AGAINST ANY PARTY SHALL BE BROUGHT EXCLUSIVELY IN EITHER THE COMMON PLEAS COURT FOR THE COUNTY OF CUMBERLAND, PENNSYLVANIA, OR IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. EACH PARTY TO THIS LICENSE AGREEMENT AGREES TO IRREVOCABLY SUBMIT TO THE PERSONAL JURISDICTION OF SUCH COURTS AND HEREBY WAIVES ANY OBJECTION TO PROPER VENUE RESTING THEREIN AND FURTHER WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUCH LAWSUIT. IN THE EVENT SAID LAWSUIT IS SUCCESSFULLY CONCLUDED IN C.S.L'S FAVOR,C.S.I. SHALL BE ENTITLED TO RECOVER, FROM LICENSEE, REASONABLE LEGAL FEES AND COSTS INCURRED BY C.S.I. IN THE LAWSUIT, IN ADDITION TO ANY OTHER RELIEF TO WHICH C.S.I. MAYBE ENTITLED 7.4 It is the intent of the parties that the validity, interpretation, and performance of this License Agreement shall be governed by the internal laws of the Commonwealth of Pennsylvania, USA, without regard to its conflicts of laws. 7.5 This License Agreement may be amended, modified or supplemented only by written agreement of the parties, or by their respective duly authorized officers authorized, at any time, provided that no such amendment, modification or supplement shall become effective until such time as both parties shall have executed such writing. 7.6 This License Agreement, and any amendment hereto, may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 7.7 Nothing herein shall constitute LICENSEE or C.S.I. as a joint venturer, partner, agent, representative or employee of the other party. 7.8 In the event any provision or any part of a provision of this License Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, provided it does not materially alter the substance of the agreement between the parties, such holding shall not invalidate or render unenforceable any other provision or part of this License Agreement. 7.9 The captions contained herein are included for convenience only and shall not be considered a part hereof or affect in any manner the construction or interpretation hereof. Page 12 of 14 , 'rROM :Smart Logistics FAX NO. :9364942742 Jul. 03 2006 09:51PM P3 7.10 Any controversy over the construction of this License Agreement shall be decided neutrally according to its terms and without regard to events of authorship or negotiation. 7.11 This License Agreement is not assignable; neither the licmuses granted hereunder nor any of the licensed program material or copies thereof may be sublicensed, assigned or transferred by the LICENSEE without the prier written consent of C,S.I. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this License Agreement is void. C.S.1 is not reFponsible for failure to fulfill itfi obligations under this License Agreement due to causes beyond its control. 7.12 No action, regardless of form, arising out of this Agreement may be brought by either party more than two years after cause of action has arisen, or, in the case of non-payment, more than two yeah from the date of the last payment. IN WITNESS VAMEOP, the parties have executed this Lieern a Agmment and caused their Corporate corals to be hereunto affixed as of the day and year firgt above written. COMPUTER SUPPORT, INC. B. Title: Date: 7?? / n 6 SMAMA G? By. Title: ?Qfss ?. ?' Date: Page 13 of 14 w Annex A Modification Estimate To: From: Date: Re: By the Company's signature below, the Company acknowledges and represents that the current version of CSI.Road has been installed and is functioning properly. The Company has reviewed the applications, processed transactions, and is requesting the modification listed on the attached exhibit. The Company understands that there is a reasonable probability the time and cost to implement the modification will exceed the respective estimates listed below. The Company understands that CSI.Road is a database application and the modification made may cause a "ripple" affect throughout the application which may take longer to disclose and longer to implement the appropriate modification than anticipated. The Company understands that it is its sole responsibility to test the modifications with their information prior to using the modification in a production environment. The description of modification requested is described on the accompanying exhibit. The estimated hours are: The down payment amount is: When approval and down payment are received, the modification will be assigned a project # which will also appear on invoices sent to the Company. A draw is established against the down payment. The amounts over and above the down payment will be paid within terms specified on the invoice. As work effort progresses, CSI representative swill keep Company apprised of project status. The Company will be invoiced on a weekly basis for all of the time expended on this modification by CSI personnel, including initial analysis for estimating purposes. The invoices must be paid within 30 days of the applicable invoice date. The estimate proposal will expire in 30 days. Signature and date for Approval: Date: The project # is: The targeted completion date is: Company Representative -Page 14 of 14 Exhibit "B" W,WMTER SUPMRZ INC. STATEMEN Smart Transportation Services, Inc. Attn: Aubrey Smart 8950 Railwood Drive Houston, TX 77078 Computer Support, in PO Box 24 47 West Main Mechanicsburg, PA 170 Phone: (717) 691-67 Statement Date: 4/4/20( Thank you for your busine Invoice Number Description Billing Date Payment Trans. Amount Amount Due Days o 00008245-0 Freight Bill 8/8/2006 Yes $8,462.46 $4,810.58 23! 00008245-0 Check 1975 7/24/2006 Yes ($3,651.88) ; 00008271-0 Freight Bill 8/15/2006 No $9,177.50 $9,177.50 23, 00008330-0 Freight Bill 10/31/2006 Yes $7,224.00 $3.56 15` 00008330-0 Check 5981 11/19/2006 Yes ($7,220.44) 00008331-0 Freight Bill 11/30/2006 Yes $7,224.00 $1,78 12° 00008331-0 Check 3417 1/12/2007 Yes ($7,222.22) 00008332-0 Freight Bill 12/29/2006 No $7,224.00 $7,224.00 9f 00008452-0 Freight Bill 10/13/2006 Yes $1,510.00 $1,385.00 173 00008452-0 3/8/2007 Yes ($125.00) C 00008578-0 Freight Bill 11/8/2006 No $470.00 $470.00 147 00008608-0 Freight Bill 11/15/2006 No $375.00 $375.00 140 00008792-0 Freight:Bill 1/4/2007 No $11,700.00 $11,700.00 90 00008994-0 Freight Bill 318/2007 No $1,970.00 $1,970.00 27 0 to 30 30 to 60 60 to 90 90 to 120 Over 120 Balance $ 1,970.00 $ 0.00 $ 11,700.00 $ 7,224.00 $ 16,223.42 $ 37,117.42 ti W '4Z? a, -ca d al) f ZZ) lll? r--a ?- -r, OV) r7+T_ i - - 1 ?Mn ? Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 07-2011 : JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE I hereby certify that the Complaint in the above-captioned matter was served by means of United States mail, first class, postage prepaid, certified mail return receipt requested, upon the following: Smith [sic - Smart] Transportation 4721 Garth Road, Suite A200 Baytown, TX 77521-2153 A copy of the Return Receipt is attached hereto and made a part hereof. Respectfully submitted, RHOADS & SINON LLP By: (k 94-- T,6dd J. Shill John R. Martin RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on May 8, 2007, a true and correct copy of the foregoing Affidavit of Service was served by means of United States mail, first class, postage prepaid, upon the following:: Smart Transportation Services, Inc. 4721 Garth Road, Suite 200 P.O. Box 913 Baytown, TX 77521 ¦ Complete items 1, 2, and 3. Also complete s nature 0?? 0 Agent item 4 if Restricted Delivery is desired. ff 9 J ¦ Print your name and address on the reverse 2 W ! - O. Addressee so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, R by ( r1nName C. at of livery L I ( V V or on the front if space permits. D. Is delivery address different from item 11 13 Yes 1. Article Addressed to: If YES, enter delivery address below: 0 No \ + y 7(9 1 C? Ro-o e? ' tJ ?, Aav© 3. Service Type Mail ? Express Mail <5219ortified "II8etum Receipt for Merchandise 13 Registered '- 0 Insured Mail 0 C.O.D. 77 - I ? !'`" li F t ? E R i d D t -. ee) r cte e very ( x 4. es ra 0 Yes 2. Article Number 7005 (transfer from service label 3110 0004 3 216 3244 PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 UNITED STATES POSTAL SERVICE First-Class Mail Postage & Fees Paid LISPS Permit No. G-10 • Sender: Please print your name, address, and ZIP+4 in this box • D uQA Ts One South Market Square, 12th FI P.O. Box 1146 & SINON LLP Harrisburg, PA 17108-1146 AymyfUMbWnY SYttR- ?1304° llffitlfl!llff7if!ll?lfllffi lftitf!l7 tf f?f ilt:llF?1/ Pe ?- CERTIFIED MAII rr, RECEI PT - .. Mail Only , No Insurance Coverage Provided) M For deliver informatio n visit our website at ww w usps comr _n r-q y . . , M Postage S M Certltied Fee O ipt Fee Faaurtr Rece PossHere (Endorsement Required) ° rl Restrkxed DeNvery Fee (Endorsement Required) r-9 M Total Postage & Fees $ ul C3 ° nt o . 74-?hfb- ' - - - - - --. cit„ Sta Pro i PS Form ::3800, June 2002 7 See Reveise for Instrkictions ° C? ? ?? --' °. ? ? -?.? -- ?; ? ? . p ? ,?: . 7 ' - -? ? ?- .. .-,? 9 ?=?, ?. : ; r. t ? Y' ;ate ?- _ 1 ' , , ,, .j vo! LoI GUU 7 1'4. io rnA 111 601 ooaa KriUA13J & J1!?U_V LLY Matthew J. Eshelman, Esq., Pa. Id. 72555 PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 M.Cshelmanahotmail.com COMPUTER SUPPORT, INC.; Plaintiff VS. SMART TRANSPORTATION SYSTEMS INC., Defendant W]UU3/UU3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA DOCKET No. 07 - 2011 Civil Term CIVIL ACTION - BREACH OF CONTRACT PREVIOUSLY ASSIGNED: N/A AGREEMENT PURSUANT TO RULE 237.2 TO EXTEND TIME TO PLEAD FOLLOWING TEN-DAY NOTICE It is agreed that Defendant Smart Transportation Systems, Inc., is granted an extension of time through Friday, June 8, 2007, in which to file ? 1. a complaint © 2_ an answer ? 3, an answer or preliminary ohjectionc After the above date, a judgment of non pros or by default as may be appropriate, may be entered upon praecipe without further notice. A Date: By: Z?__ J- ohn R. Martin, Esquire Rhoads & Sinon, LLP Harrisburg, PA 17108-1146 (717) 233-5731 Atto ys for P intiff, om uter Support Inc., Date: 6_ja5 07?- By: --- tth . Es Im n, Esquire Camp Hill, PA 170 1-1080 (717) 249900 Attorneys for Defendant, Smart Transportation r.. c:? z'°? t=- =_ _.... t x.s.i r_ ?.7; ' t ... = a?w.. ``? ?, 5 :x_ - ' ; t"? _ ? ? ° c . - VJ/ LJ/ 4VV 1 14.10 PAA Ill LJ1 UVVO ARVAY3 U 311VU1V LLr 4J VUL/ VVJ COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2011 JURY TRIAL DEMANDED JOINT PRAECIPE TO OPEN AND SET ASIDE DEFAULT JUDGMENT TO THE PROTHONOTARY: Kindly open and set aside the default judgment entered against Defendant Smart Transportation Services, Inc. on May 25, 2007. Pursuant to the Rule 237.2 Agreement filed herewith, Counsel for both. parties stipulate to open the default judgment and allow Defendant until Friday, June 8, 2007 to file an Answer to Plaintiff's Complaint. Date: !;Ii5 /07 By: 6, 1 _. V4 - Jo R. Martin, Esquire RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff k9 P. P ? ky? ?r g ?as o-fi p r? Date: By: ? Matthew J. E$helman, Esquire Camp Hill, PA 17001-1080 (717) 249-6900 Attorneys for Defendant 651963.1 r'a <<) „E ???i?_ _ : ..; ?; j ??:?i av -^v Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW SMART TRANSPORTATION NO. 07-2011 SERVICES, INC., Defendant. JURY TRIAL DEMANDED PRAECIPE TO ENTER DEFAULT JUDGMENT TO: THE PROTHONOTARY: Pursuant to Pennsylvania Rule of Civil Procedure 1037, based on the failure of Defendant Smart Transportation Services, Inc., to timely answer the Complaint or file any other responsive pleading in this action, kindly enter judgment against Defendant and in favor of Plaintiff Computer Support, Inc. I hereby certify that the Notice of Intention to file a Praecipe for Entry of Default Judgment was duly served upon Defendant in accordance with Pa.RC.P. No. 237.1. Attached as Exhibit "A" is a copy of Plaintiff's written Notice, which I certify was mailed to Defendant by means of certified mail and by regular mail on May 15, 2007, which is at least ten (10) days prior to the filing of this Praecipe. Respectfully Submitted, RHOADS & SINON LLP By: /!Todd J. Shill John R. Martin RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 651876.1 EXHIBIT "A" A Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2011 JURY TRIAL DEMANDED NOTICE OF INTENTION TO TAKE DEFAULT JUDGMENT Date: May 15, 2007 To: Smart Transportation Services, Inc. 4721 Garth Road, Suite A200 Baytown TX 77521-2153 IMPORTANT NOTICE You are in default because you have failed to enter a written appearance in writing with the Court setting forth your defenses or objections to the claims set forth against you in Plaintiff's Complaint. Unless you act within ten (10) days from the date of this Notice, as set forth above, a judgment may be entered against you without a hearing and you may lose your property or other important rights. OARS S O LLP By: odd J. Shill John R. Martin RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 640204.1 CERTIFICATE OF SERVICE I hereby certify that on May 15, 2007, a true and correct copy of the foregoing "Notice of Intent to Take Default Judgment" was served by United States First Class Certified Mail, Return Receipt Requested, and by Regular U.S. First Class Mail, upon the following: Smart Transportation Services, Inc. 4721 Garth Road, Suite 200 P O Box 913 Baytown TX 77521 Jean His CERTIFICATE OF SERVICE I hereby certify that on May 25, 2007, a true and correct copy of the foregoing "Praecipe to Enter Default Judgment" was served by Regular U.S. First Class Mail, upon the following: Smart Transportation Services, Inc. 4721 Garth Road, Suite 200 P0Box913 Baytown TX 77521 nJ fQ 7 7 7 -7 (° 21- p (H -r, q-- r? 1/ 1 4 a s Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs COMPUTER SUPPORT, INC., Plaintiff, PENNSYLVANIA V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, CIVIL ACTION - LAW NO. 07-2011 JURY TRIAL DEMANDED 236 NOTICE Notice is given that a Judgment in the above-captioned matter has been entered against you. ?s/ R. ? Curtis R. Long Prothonotary If you have any questions concerning the above, please contact: Ok 0?_ T dd J. Shill John R. Martin RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 651895.1 Matthew J. Eshelman, Esq., Pa. Id. 72655 PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 M.Eshelman@hotmail.com COMPUTER SUPPORT, INC., Plaintiff vs. SMART TRANSPORTATION SERVICES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET No. 07 - 2011 Civil Term CIVIL ACTION - BREACH OF CONTRACT PREVIOUSLY ASSIGNED: N/A NOTICE TO PLEAD TO: COMPUTER SUPPORT, INC., Plaintiff, You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Date: June 8, 2007 Matthew J. Eshelman, Esquire, Fla la. lZb55 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 395-8503 M.Eshelman@hotmail.com Attorneys for Smart Transportation Systems Matthew J. Eshelman, Esq., Pa. Id. 72655 PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 M.Eshelman@hotmail.com COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. SMART TRANSPORTATION DOCKET No. 07 - 2011 Civil Term SERVICES, INC., CIVIL ACTION - BREACH OF CONTRACT Defendant PREVIOUSLY ASSIGNED: N/A ANSWER and NEW MATTER Defendant, Smart Transportation Services, Inc., by and through counsel in the person of Matthew J. Eshelman, Esquire, brings the following Answer and New Matter to Plaintiff's Complaint, and in support thereof, represents as follows: 1. Admitted. It is admitted that Plaintiff is CSI, a Pennsylvania Business Corporation having a business address of PO Box 2429, Mechanicsburg, Pennsylvania. 2. Admitted. It is admitted that CSI sells computer software to the trucking industry. 3. Admitted. It is admitted that Defendant Smart Transportation Services is a Texas corporation with a registered office of PO Box 913, Baytown, TX 77521. 4. Admitted. It is admitted that Smart Transportation Services is engaged in the trucking business, inter alia. 5. Admitted in part and denied in part. It is admitted that Exhibit "A" attached to the Complaint appears to be a true and correct copy of the License and Support Agreement between the parties. The remaining allegations amount to a conclusion of law regarding which the Agreement speaks for itself and to which no responsive pleading is required; however, to the extent the allegations are deemed to be factual, the same are denied. 6. Admitted. It is admitted that Smart Transportation Services paid the amount of $21,667.67 upon execution of the Agreement, representing a "one-time licensing charge." 7. Admitted in part and denied in part. It is admitted that Smart Transportation Services agreed to satisfy the balance of the "licensing charge." It is denied that Smart Transportation Services agreed to an 18% per annum late payment service charge. Any implication that Smart Transportation Services agreed to pay the remaining balance in the event Plaintiff failed to abide by its obligations under the Agreement is likewise denied. 8. Admitted in part and denied in part. It is admitted that Smart Transportation Services agreed to pay an 18% annual charge for license and continuing support services provided by Plaintiff. Any implication that Smart Transportation Services agreed to pay the annual charge in the event Plaintiff failed to abide by its obligations under the Agreement is denied. 9. Admitted. It is admitted that $43,333.33 plus $11,700.00 equals $53,033.33. 10. Admitted in part and denied in part. It is admitted that Smart Transportation Services has tendered an additional $18,219.54 under the Agreement. The remaining allegations amount to a conclusion of law regarding which the Agreement speaks for itself and to which no responsive pleading is required; however, to the extent the allegations are deemed to be factual, the same are denied. 11. Admitted. It is admitted that Smart Transportation Services has failed and refused to fully satisfy the invoices described in Plaintiff's Complaint totaling $37,117.42, as more fully attached to Plaintiffs Complaint as Exhibit "B". 12. Admitted. It is admitted that Plaintiff has demanded payment for the outstanding invoices. 13. Admitted in part and denied in part. It is admitted that Smart Transportation System has refused to make the requested payment and that it has ceased allowing Plaintiff access to its computer software systems. It is denied that Smart Transportation System has refused to respond to any other reasonable and legal requests of Plaintiff. 14. Admitted. It is admitted that does not intend to make payment in light of the conduct of the parties and the circumstances surrounding the transaction. Count I - Breach of Contract 15. Defendant Smart Transportation Services incorporates all preceding and subsequent paragraphs as if set forth fully herein. 16. Admitted in part and denied in part. It is admitted that Plaintiff provided software, performed services, and promptly invoiced Smart Transportation Services. It is denied that Plaintiff did so pursuant to the terms and conditions of the Agreement or the representations of its sales and support personnel. 17. Admitted in part and denied in part. It is admitted that Smart Transportation Services has not paid Plaintiff for the balance of the license fee or continuing support services. It is denied that Plaintiff has been damaged as a result. 18. Denied. The allegations contained in the corresponding Paragraph of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required; but, to the extent such allegation - that Smart Transportation Services failure to pay constitutes a breach of the Agreement - is deemed to be factual, the same is denied. WHEREFORE, Defendant Smart Transportation Services requests the First Count of Plaintiffs Complaint be denied. Count II -Account Stated 19. Defendant Smart Transportation Services incorporates all preceding and subsequent paragraphs as if set forth fully herein. 20. Admitted. It is admitted that Plaintiff sent Smart Transportation Services invoices detailing the amount claimed to be owed by Smart Transportation Services to Plaintiff. 21. Denied. It is denied that the invoices accurately reflect the amount due pursuant to the Agreement. 22. Admitted in part and denied in part. It is admitted that Smart Transportation Services has refused to pay the amounts claimed. It is denied that the amounts claimed are the amounts due. WHEREFORE, Defendant Smart Transportation Services requests the Second Count of Plaintiffs Complaint be denied. Count III - Account Stated 23. Defendant Smart Transportation Services incorporates all preceding and subsequent paragraphs as if set forth fully herein. 24. Admitted in part and denied in part. It is admitted that Smart Transportation Services agreed to pay a licensing fee and for continuing support services. Any implication that Smart Transportation Services agreed to pay such in the event Plaintiff failed to abide by its obligations under the Agreement is denied. 25. Denied. It is denied that Plaintiff substantially performed all, of its contractual obligations and has delivered proper invoices for payment. 26. Admitted. It is admitted that it was reasonable for Smart Transportation Services to expect that its promises under the Agreement would induce the Plaintiff to abide by its own promises under the Agreement. 27. Denied. It is denied that Plaintiff relied upon Smart Transportation Services' promise to pay. 28. Denied. It is denied that Smart Transportation Services has benefited by not paying Plaintiff $37,117.42. 29. Denied. It is denied that injustice will result if Smart Transportation Services' promise is not enforced. WHEREFORE, Defendant Smart Transportation Services requests the Third Count of Plaintiffs Complaint be denied. NEW MATTER 30. The allegations set forth in the preceding Paragraphs are incorporated herein by reference. 31. The initial licensing fee of $65,000.00 was payable over the first year of the license usage, and additional fees under Article III were not to commence until the 30th day after delivery of the software program to Smart Transportation Services. See Paragraphs 2.1 and 2.2 of the Agreement. 32. The annual charge of 18% of the initial licensing fee is an Article III Additional Fee, payable for continuing licensing and support services (the $11,700.00 claim referenced in Paragraph 8 of Plaintiff's Complaint), was invoiced by the Plaintiff on or about January 4, 2007, less than one year after delivery of the software program. See Paragraph 3.1 of the Agreement. 33. The invoices issued by Plaintiff are unclear. 34. Specific example is referenced where there are multiple entries for the same date upon separate invoices. 35. Plaintiff inappropriately billed Smart Transportation Services for data corruption causes by Plaintiff's software program. 36. Plaintiff asserts that it has not billed for fixing the problem with the program, just for correcting data damaged by problems in the program. 37. Plaintiff represented to Smart Transportation Services that the software program would work in Smart Transportation Services' system, but the program did not operate as described. 38. Smart Transportation Services was told from the outset that it would received the newest available version of the software program, but it did not. 39. Smart Transportation Services was forced to deploy new software versions within six months of purchase. 40. Plaintiffs program did not function in a "common sense" way, as was represented by Plaintiff's agents; representations upon which Smart Transportation Services reasonably relied to its detriment. 41. Plaintiff failed to advise Smart Transportation Services regarding certain basic aspects of the operation of the software program, which resulted in a misunderstanding regarding the performance expectations of the product. 42. Specific example is referenced where manual entry of the information into one part of the software program would not make its way automatically to other, intuitive parts of the system, such as racks in the warehousing system to building management. 43. Smart Transportation Services never received user manuals for the software provided. 44. Eventually, Smart Transportation Services was provided with outdated manuals, but the effect was to prevent Smart Transportation Services from utilizing the software program as it was designed and to force Smart Transportation Services to rely upon Plaintiff's tech support at an additional fee for even basic uses of the program. 45. Ultimately, the software program did not perform as represented to Smart Transportation Services prior to entering into the Agreement. WHEREFORE, Defendant Smart Transportation Services respectfully requests that the Plaintiffs Complaint be dismissed, or for such other relief as the court deems appropriate. Respectfully s bmitt d, Date: June 8, 2007 Matthew J. Eshelman, Esquire, Pa Id. 72655 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 395-8503 M.Eshelman@hotmail.com Attorneys for Smart Transportation Systems Matthew J. Eshelman, Esq., Pa. Id. 72655 PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 M.Eshelman@hotmail.com. COMPUTER SUPPORT, INC., Plaintiff VS. SMART TRANSPORTATION SERVICES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET No. 07 - 2011 Civil Term CIVIL ACTION - BREACH OF CONTRACT PREVIOUSLY ASSIGNED: N/A ATTORNEY VERIFICATION PER RULE 1024(c) 1. I, Matthew J. Eshelman, Esquire, attorney for the Defendant, Smart Transportation Services, being authorized to do so on behalf of Smart Transportation Services, hereby verify that the statements made in the foregoing pleading are true and correct to the best of my information, knowledge and belief. 2. 1 am a person having sufficient knowledge or information to form a belief as to the veracity of the averments or denials of fact contained in the attached pleading from personal knowledge or, to the extent such matters are not stated upon my own knowledge, they are made from detailed discussions with an authorized representative of the party filing the pleading who has personal knowledge of the facts averred or denied herein. 3. A verification page and a copy of the attached pleading has been transmitted to the client/party, but the original has not been received back through the US Mail in time to file the pleading. 4. 1 understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. 5. This verification is intended to expedite the litigation, is made pursuant to Rule 1024(c) to allow the pleading to be timely filed, and the verification of a party shall be supplied upon request. Respectfully ub i , t Date: June 8, 2007 Matthew J. Eshelman, Esquire, Pa Id. 72655 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 395-8503 M.Eshelman@hotmail.com Attorneys for Smart Transportation Services Matthew J. Eshelman, Esq., Pa. Id. 72655 PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 M.Eshelman@hotmail.com COMPUTER SUPPORT, INC., Plaintiff vs. SMART TRANSPORTATION SERVICES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET No. 07 - 2011 Civil Term CIVIL ACTION - BREACH OF CONTRACT PREVIOUSLY ASSIGNED: N/A CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the attached pleading or motion was served upon the individual(s) set forth below by first class mail or electronic transmission, which service satisfies the Pennsylvania Rules of Civil Procedure, as follows: John R. Martin, Esquire Rhoads & Sinon, LLP P.O. Box 1146 Harrisburg, PA 17108-1146 Re ectf I su?mi id, I Date: June 8, 2007 Matthew J. Eshelman, Esquire, Pa Id. 72655 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 395-8503 M.Eshelman@hotmail.com Attorneys for Smart Transportation Services + 9c" (?f7i 1.0 I Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff, PENNSYLVANIA V. CIVIL ACTION - LAW SMART TRANSPORTATION NO. 07-2011 SERVICES, INC., Defendant. JURY TRIAL DEMANDED ANSWER TO NEW MATTER NOW COMES Plaintiff, Computer Support, Inc. ("CSI"), by and through its counsel, Rhoads & Sinon LLP, and files the within Answer to Defendant, Smart Transportation Services, Inc.'s ("STS") New Matter as follows: 30. The allegations contained in Paragraphs I through 29 of CSI's Complaint are hereby incorporated by reference as though fully set forth herein. 31. Neither admitted nor denied. This Paragraph refers to the Agreement between CSI and STS, which is a written document that speaks for itself. 32. Admitted that CSI sent STS an invoice for $11,700.00 on or about January 4, 2007 (Invoice No. 8792). The remaining allegations contained in this Paragraph are neither admitted nor denied; the Agreement is a written document that speaks for itself. 654851.1 33. Denied. CSI explained its invoice procedure to various STS employees on at least three different occasions: (1) over the phone with Aubrey Smart, STS's owner; (2) over the phone with Jesse Maldonado, an STS employee; and (3) in person with Jesse Maldonado while he was at CSI's facilities for training on September 26 and 27, 2006. 34. Denied. Calls are entered for particular issues. The creation date of the call is assigned to, and remains with, the particular issue being addressed, and is also displayed on the invoice. Work done for the call is billed on a weekly basis. The creation date of a particular call will continue to appear on an invoice as long as work is being done on that issue. As previously mentioned, this process was explained to STS on at least three different occasions. 35. Denied. CSI denies that it "inappropriately billed" STS. CSI further denies that any alleged "data corruption" suffered by STS was caused by the CSI.Road computer software. 36. Denied. CSI denies that there were any "problems in the program", or that these so-called "problems" caused STS to suffer "data damage." By way of further response, any "problems" experienced by STS were caused solely by its own misuse of the CSI.Road computer software. 37. Denied. The CSI.Road computer software operated in a manner consistent with CSI's representations both before and after its sale to STS. 38. Denied. On or about July 31, 2006, STS received the most up-to-date version of the CSI.Road computer software. Thereafter, on or about November 17, 2006, STS received an upgrade (free of charge) to keep its software up-to-date. -2- 39. Denied. STS was not "forced to deploy new software versions." Rather, on or about November 17, 2006, CSI informed STS that STS's version of the CSI.Road computer software would continue to work "as is", but if STS wanted to make any further changes to the software going forward, an upgrade would be required. 40. Denied. After reasonable investigation, CSI is without knowledge or information sufficient to form a belief as to STS's meaning of "common sense" and, therefore, the same is specifically denied. By way of further response, the CSI.Road computer software operated in a manner consistent with CSI's representations both before and after its sale to STS. 41. Denied. Numerous STS employees received training on the CSI.Road computer software at STS's facility during the week of July 31, 2006 and at CSI's facility on September 26 and 27, 2006. By way of further response, CSI provided training upon request. 42. Denied. Upon information and belief, STS's employees were not operating the CSI.Road computer software correctly. 43. Denied. User manuals were provided to STS on numerous occasions. For example, on or about July 17, 2006 (prior to STS's receipt of the CSI.Road software program), manuals for the warehouse module component were e-mailed to Patrick Lashford, an STS employee. Thereafter, upon receiving the CSI.Road computer software on or about July 31, 2006, manuals were uploaded to a shared drive on STS's server, and individual modules were printed out for STS employees. In addition, CSI provided STS with a hyperlink to an electronic version of these manuals, which are continually updated. -3- 44. Denied. The manuals discussed in the preceding paragraph are written for the CSI.Road computer software in its "standard" format. As such, these manuals do not contain all information specific to the modifications made and/or requested by STS. This information was, however, covered at the training sessions identified supra, ¶¶ 33, 41. 45. Denied. The CSI.Road computer software operated in a manner consistent with CSI's representations both before and after its sale to STS. WHEREFORE, Plaintiff, Computer Systems, Inc., reiterates its demand for judgment in its favor against Defendant, Smart Transportation Services, Inc., in the total amount of $37.117.42, together with interest, costs, reasonable attorney's fees, and any other amount this Court deems just and proper. Respectfully submitted, RHOADS & SINON LLP By: ?7a-- 0, odd J. Shill John R. Martin RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff -4- VERIFICATION Fred Nichols, deposes and says, subject to the penalties of 18 Pa.C.S. § 4904 relating to unworn falsification to authorities, that the facts set forth in the foregoing Answer, to New Matter are true and correct to the best of his knowledge, information and belief. Fred Nichols Date: 6/25/07 CERTIFICATE OF SERVICE 7' ??yy? I hereby certify that on this 81P day of June 2007, a true and correct copy of the foregoing Answer to New Matter was served by means of United States mail, first class, postage prepaid, certified mail return receipt requested, upon the following: Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-1080 Attorney for Defendant n ` f' ? ;:x ? i 3 C'3 r , T 23 }nr.._ iV ern cn ..,,L (j1 Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-2011: : JURY TRIAL DEMANDED PLAINTIFF COMPUTER SUPPORT, INC.'S MOTION TO COMPEL DISCOVERY NOW COMES Plaintiff Computer Support, Inc. ("CSI"), by and through its counsel Rhoads & Sinon LLP, and files the within Motion to Compel as follows: Background 1. CSI instituted this action against Defendant Smart Transportation Services, Inc. ("Smart") on or about April 11, 2007 by filing a Complaint. 2. CSI is a provider of computer software for the trucking industry. 3. Smart is engaged in the trucking business. In furtherance of its business, Smart entered into an Agreement with CSI to purchase a license for use of CSI's computer software and for consulting and support services. 683931.1 4. In accordance with the Agreement, CSI provided the license to Smart as well as consulting and support services. However, Smart has refused to pay for the license fee and for CSI's consulting and support services, totaling $37,117.42. Discovery Issues 5. Pursuant to Pa. R. C. P. 4005 and Pa. R. C. P. 4009.1 et sec on or about November 16, 2007, CSI served Smart with Plaintiff's First Set of Interrogatories and Request for Production of Documents. A true and correct copy of Plaintiff's First Set of Interrogatories and Request for Production of Documents is attached hereto as Exhibit A. 6. Specifically, CSI served six (6) interrogatories and twelve (12) requests for production of documents on Smart, which are narrowly tailored to focus on trial evidence and Smart's computer system and software applications, the specific subject matter of this lawsuit. 7. Smart has not provided any written response to the foregoing discovery, and did not otherwise object thereto or produce any responsive documents. 8. Pursuant to local rule 208.2(d) and in an effort to resolve this matter without court intervention, on March 12, 2008, undersigned counsel for CSI wrote to Matthew J. Eshelman, counsel for Smart, notifying him that the responses were overdue by many months and requested that his client respond by March 21, 2008. A copy of this correspondence is attached hereto as Exhibit B. 9. Mr. Eshelman did not respond to the above correspondence. 2 10. As of this date, Smart has not provided answers to CSI's First Set of Interrogatories and Request for Production of Documents or any documents in response thereto. 11. Accordingly, CSI's motion to compel should be granted. WHEREFORE, CSI respectfully requests that the Court order Smart to respond to CSI's discovery within ten (10) days. CSI also respectfully requests that if Smart fails to respond to CSI's First Set of Interrogatories and Request for Production of Documents within ten (10) days, Defendant shall be sanctioned by the Court in a manner to be determined later. RHOADS & S1NON LLP By: Todd J. Shi One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Dated: March 25, 2008 Attorneys for Plaintiff Computer Support, Inc. 3 EXHIBIT "A" r "\ s Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 RHOADS & SINON LLP One South. Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731. Attorneys for Plaintiff COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2011 JURY TRIAL DEMANDED PLAINTIFF'S FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS 1 670629.1 TO: Smart Transportation Services, Inc. c/o Matthew J. Eshelman, Esquire P: O. Box 1080 Camp Hill, PA 17001-1080 PLEASE TAKE NOTICE that you are hereby required, pursuant to Pennsylvania Rules of Civil Procedure Nos. 4001 et sea., to serve upon the undersigned a copy of your answers and objections, if any, in writing and under oath, to the following Interrogatories within thirty (30) days after service hereof. The answers shall be inserted in the spaces provided. If there is insufficient space to answer an Interrogatory, the remainder of the answer shall follow on a supplemental sheet. These Interrogatories shall be deemed to be continuing. If between the time of filing your answers and the.time of trial of this matter, you, or anyone acting on your behalf, learn of any further information not contained in your answers, or if you learn that any information set forth in your answers is or has become inaccurate or incorrect, you shall promptly file and serve supplemental answers. Also pursuant to Pennsylvania Rules of Civil Procedure Nos. 4001 et seq., you are hereby required to produce for inspection, examination, and copying, all documents responsive to the following Requests for Production no later than thirty (30) days after service of these Requests. These Requests shall be continuing. If, between the time of producing such documents and the trial of this matter, you or anyone acting on your behalf learn of additional documents responsive to these Requests, you shall produce such documents by supplemental response. DEFINITIONS AND INSTRUCTIONS The following definitions and instructions are applicable to these Interrogatories and Requests for Production: (1) Definitions. (a) "You" or "Your" shall mean Smart Transportation Services, Inc., Defendant in the above-captioned litigation, its attorneys, agents, and representatives. (b) "Plaintiff" shall mean Computer Support, Inc. (c) "And" and "Or" shall be construed conjunctively and disjunctively so as to bring within the scope of these Interrogatories and Request for Production of Documents that which might otherwise be construed to be outside its scope. (d) "Complaint" shall mean the Complaint filed by Plaintiff in the Cumberland County Court of Common Pleas, Civil Division, No. 07- 2011. -2- (e) "Document" shall mean any written, handwritten; printed, typed, or other graphic matter of any kind or nature, however produced, reproduced, or copied, including data compilations, e-mail, and all other electronically stored data, however stored (including data files stored in/on office desktop computers/workstations, notebook/laptop computers, home computers, staff computers, palmtop devices or electronic organizers/secretaries, and network file servers/mini-computers; backup tapes including system-wide backups, disaster recovery backups, and personal or "ad hoc" backups; and other media sources including tape archives, replaced/removed drives, floppy diskettes, CD-ROMs, DVDs, zip cartridges, and other portable media), photographs, microfilms, video and audio tapes, and any other data compilations from which information can be obtained. (f) "Identify" or "Identity" means when used in reference to -- (1) a natural person, his or her: (i) full name; and (ii) present or last known residence and employment address (including street name and number, city or town, and state or county); (2) a document: (i) its description (e&., letter, memorandum, report, etc.), title, and date; (ii) its subject matter, (iii) its author's identity; (iv) its addressee's identity; (v) its present location; and -3- C ?'\1 (vi) its custodian's identity; i (3) an oral communication: (vi) (4) a co (i) (ii) (i) its date; (ii) * the place where it occurred; (iii) its substance; (iv) the identity of the person who made the communication; (v) the identity of each person to whom such communication was made; and the identity of each person who was present when such communication was made; rporate entity. its full corporate name; its date and place of incorporation, if known; and its present address and telephone number, (5) any other context: a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, and the identification of relevant people, entities, and documents. (2) Option to produce documents. In lieu of identifying documents in response to the Interrogatories listed below, you may provide copies of such documents pursuant to Plaintiff's Request for Production of Documents with appropriate references to the corresponding Interrogatories. (3) Claim of privilege. With respect to any claim of privilege or immunity from discovery, you must identify the privilege or immunity asserted and provide sufficient information to substantiate the claim. If you claim that the subject matter of a document or oral -4- communication is privileged, you are required to identify the document or communication by stating the following information: (a) its nature (e_.g_, letter, memorandum, tape recording, etc.); (b) its date (or if it bears no date, the date when it was prepared); (c) the name, address, employer and job position of the signer or signers (or, if there is no signer, the name, address, employer and job position of the person who prepared it); (d) the name, address, employer and job position of the person, if any, to whom the document was sent; (e) the name, address, employer and job position of each person known or believed to have originals or copies of the documents; (f) a brief statement of the subject matter of the document; and (g) each ground or basis on which you contend that the document or oral communication is privileged. (4) Lack of possession. If you do not have possession, custody, or control of a requested document, but know who does have possession, custody, or control, you are required to identify the document and the person who has possession, custody, or control. -5- f INTERROGATORIES 1. Identify each person whom you intend to call as a fact witness at trial. With respect to each person identified, state what you intend to prove by his or her testimony. ANSWER: -6- i 2. Identify each person whom you intend to call as an expert witness at trial. With respect to each person identified, state: (1) the subject matter on which he or she is expected to testify; (2) the substance of the facts and opinions to which he or she is expected to testify, (3) a summary of the grounds for each opinion; and (4) whether he or she created a report relating to this matter. ANSWER: -7- 3. Identify all exhibits that you intend to use at trial. ANSWER: -8- 4. Identify every individual who provided information to you for the purposes of answering these Interrogatories. ANSWER: -9- 5. Identify every individual, whether or not compensated by you, who provided an opinion regarding the value, quality, fitness, and/or working condition of Plaintiffs software. For each individual, explain in detail the opinion provided. ANSWER: -10- 6. Identify the following information with respect to your computer system: (a) the layout and structure of your computer system, including the number and types of computers and the types of operating systems and application software packages used (provide the software maker, program name, and version for each software package); (b) the structure of any e-mail system, including software used, the number of users, the location of e-mail files, and password usage; (c) the structure of any network, including the configuration of network servers and workstations, and the brand and version number of the network operating system in use; (d) software applications used for things such as calendars, project management, accounting, word processing, and database management, including industry-specific programs, proprietary programs, encryption software, and utility programs (provide the installation date for each software package); (e) the personnel responsible for the ongoing operation, maintenance, expansion, and upkeep of the network; (f) the personnel responsible for administering the e-mail system; (g) the personnel responsible for maintenance of computer-generated records and the manner in which such records are organized and accessed; (h) backup procedures used on all computer systems, including a description of all devices (eg., tape drives) and software used to create backups, the personnel responsible for conducting the backups, what information is backed up, backup schedules, and tape rotation schedules; (i) the process for archiving and retrieving backup media both on and off site; (j) the procedure used by system users to log on to computers and into the network, including the use of passwords, logs, audit trails, and other security measures used to identify data created, modified, or otherwise accessed by particular users; (k) whether and how access to particular files is controlled; and (1) routines for archiving and purging electronic data. ANSWER: -11- REQUESTS FOR PRODUCTION 1. Any and all documents which evidence, reference, relate to, pertain to, or support the allegations in your Answer and New Matter. 2. Any and all proposals, agreements, licenses, and other documents which evidence, reference, relate to, pertain to, or state an agreement between the parties with respect to software, charges, fees, or invoices. 3. Any and all documents which evidence, reference, relate to, pertain to, or state your requests for, receipt of, acceptance of, or rejection of, software provided by Plaintiff. 4. Any and all documents which evidence, reference, relate to, pertain to, or state the amount of any charges or fees you agreed to pay Plaintiff for software. 5. Any and all documents which evidence, reference, relate to, or pertain to software purchased to replace the software provided by Plaintiff, including documents concerning your inquiries, requests, purchases, and payments for such replacement software. 6. Copies of any and all accounts payable or other business records which evidence, reference, relate to, or pertain to the history of the transaction between the parties and any amounts owed to Plaintiff. 7. Copies of any and all written policies for the retention and destruction of documents, including but not limited to, business records. 8. Since the filing of the Complaint, if any documents have been destroyed, please state which electronic files have been deleted and the dates of such destruction. 9. Copies of any and all lists of personnel (names and titles) for all personnel involved with your information technology or information services. 10. Copies of any and all software installed or used on your personnel computers during the period from July 5, 2006 to the present, including all titles and version numbers and authors and contact information for the authors of custom or customized software. 11. The most recent full or partial computer system back-up completed prior to the filing of the Complaint. -12- 12. Any and all documents, including but not limited to, purchase orders, invoices, receipts and licensing agreements, reflecting your purchase of "CSI.Road", including any and all databases and/or other electronic data compilations related thereto or that run off of or in tandem with this program. RHOADS & SINON LLP By. -Z Todd J. Shill John R. Martin RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff -13- CERTIFICATE OF SERVICE I hereby certify that on this 16`h day of November, 2007, the foregoing "PlaintifFs First Set of Interrogatories and Request for Production of Documents" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 I ab (? 0 4?.? EXHIBIT "B" Toddl.'Shill OADS ^ ' r¢ t , ph (717)231 6665 231-6637; . v.y t 1 P?4,w? 1,?1? br,j ?? Jy r t ' ' t ' j tshill@ rhoads-sinon.com &SIN Fmz No: 6287/30 March 12, 2008 Re: Computer Support, Inc. v. Smart Transportation Services, Inc., In the Court of Common Pleas, Cumberland County, Pennsylvania, Civil Action Law, No 07-2011 Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 Dear Mr. Eshelman: Your client's discovery responses are overdue by many months. If we do not receive responses by the end of next week, March 21, 2008, we will have no choice but to file the appropriate motions to compel. Thank you for your cooperation. Very truly yours, R iOAOS & S1NoN LLP By: Todd J. Shill cc: Fred Nichols 682500.1 Rhoads 6a Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box 1146 Harrisburg, PA 17108-1146 • ph (717) 233-5731 • fx (717) 232-1459 • www.rhoads-sinon.com CERTIFICATE OF SERVICE I hereby certify that on this 25 h day of March 2008, the foregoing "CSI Computer Support, Inc.'s Motion to Compel" was served by means of United States mail, first class, postage prepaid, upon the following: MATTHEW J. ESHELMAN P.O. BOX 1080 CAMP HILL, PA 17001-1080 683931.1 i COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. SMART TRANSPORTATION SERVICES, INC., Defendant CIVIL ACTION - LAW NO. 07-2011 CIVIL TERM ORDER OF COURT AND NOW, this 14`h day of April, 2008, upon consideration of Plaintiff Computer Support, Inc.'s Motion To Compel Discovery, a Rule is hereby issued upon the Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, esley Oler Jr., J. V /Todd J. Shill, Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff ? / Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-10808 Attorney for Defendant re aor?t E S /YL? 1 &-CL y/iv/oe C? I : I Wd ' I ddv BOOZ ?,?'p' t + c L? i r :"Hi Jo Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1 146 Harrisburg, PA 17108-1 146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-2011: JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO MAKE RULE ABSOLUTE NOW COMES Plaintiff, Computer Support, Inc. ("CSI"), by and through its counsel Rhoads & Sinon LLP, and files the within Motion To Make Rule Absolute, as follows: 1. On or about November 16, 2007, CSI served Plaintiff's First Set of Interrogatories and Request for Production of Documents on Defendant. 2. Defendant failed to respond to CSI's interrogatories and document requests. 3. On March 12, 2008, in accordance with local rule 208.2(d), the undersigned counsel wrote to counsel for Defendant, Matthew J. Eshelman, in an effort to resolve this discovery dispute without court intervention. 4. Mr. Eshelman did not respond to the undersigned's correspondence. 5. On or about March 27, 2008, CSI filed a Motion to Compel Discovery. 688950 1 6. On or about April 14, 2008, the Court entered an Order issuing a Rule upon Defendant to show cause as to why CSI's Motion to Compel Discovery should not be granted. A true and correct copy of the Order is attached hereto as Exhibit "A". 7. As indicated in the attached Order, the Court served Plaintiff's counsel, Matthew Eshelman, Esq., with the Order on or about April 14, 2008. 8. The Rule issued was returnable within twenty (20) days after service, which, as noted above, was made on April 14, 2008. 9. Twenty-three (23) days have now passed since service of said Rule. 10. To date, Defendant has not responded to CSI's motion to compel discovery in accordance with the Court's Order dated April 14, 2008, nor has Defendant provided the requested answers to CSI's written discovery WHEREFORE, Plaintiff, Computer Support, Inc., respectfully requests that this Court make its April 14, 2008 Rule Absolute and grant Plaintiff's Motion to Compel Discovery, as set forth in the proposed Order filed with CSI's motion and attached as Exhibit "B." RHOADS & SINON LLP By: t_? Todd J. Sh' 1 One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Dated: May 7, 2008 Attorneys for Plaintiff Computer Support, Inc. EXHIBIT A (The Court's April 14, 2008 Order) COMPUTER SUPPORT, INC., Plaintiff V. SMART TRANSPORTATION SERVICES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 07-2011 CIVIL TERM ORDER OF COURT AND NOW, this 14`h day of April, 2008, upon consideration of Plaintiff Computer Support, Inc.'s Motion To Compel Discovery, a Rule is hereby issued upon the Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, Todd J. Shill, Esq. O South Market Square O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-10808 Attorney for Defendant : rc ;?j 7•tii„i? .`er nn.. ???j'?(J? ?'4 I 1. ice., r:•: :+ ? • +!?{. ??i161,i ?7fVy (??r hit 03 t - ... EXHIBIT B (Plaintiff's Proposed Order Submitted with Motion to Compel Discovery) Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 COMPUTER SUPPORT, INC., Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW V. NO. 07-2011 SMART TRANSPORTATION SERVICES, INC., Defendant. : JURY TRIAL DEMANDED AND NOW this day of 2008, upon consideration of Plaintiff's Motion to Compel and any response thereto, it is hereby ORDERED that the Motion is GRANTED and Defendant shall respond to Plaintiff's First Set of Interrogatories and Request for Production of Documents within ten (10) days of the date of this Order. If Defendant fails to do so, Defendant shall be sanctioned by the Court in a manner to be determined later. CERTIFICATE OF SERVICE I hereby certify that on this 7th day of May, 2008, the foregoing "Plaintiff's Motion to Make Rule Absolute" was served by means of United States mail, first class, postage prepaid, upon the following: MATTHEW J. ESHELMAN, ESQUIRE P.O. BOX 1080 CAMP HILL, PA 17001-1080 d s i 1'T? ?% OD . i W ? tt't _ co COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. SMART TRANSPORTATION SERVICES, INC., Defendant CIVIL ACTION - LAW : NO. 07-2011 CIVIL TERM ORDER OF COURT AND NOW, this 130' day of May, 2008, upon consideration of Plaintiff s Motion To Make Rule Absolute, the motion is granted and the Rule issued on April 14, 2008, is made absolute. Defendant is ordered to respond without objection to Plaintiffs First Set of Interrogatories and Request for Production of Documents within 20 days of the date of this order. /Todd J. Shill, Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-10808 Attorney for Defendant ?K :rc 1 sl«?d8 BY THE COURT, Wesley Ole Air" V,INVA-V,SNN': d Ai-Neon ;,t };tea S ? sZ Wd E I AVN 8082 MVIO NGi iO? d 3HL JO 30f-JO -031U Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-2011: JURY TRIAL DEMANDED PLAINTIFF COMPUTER SUPPORT, INC.'S MOTION FOR SANCTIONS NOW COMES Plaintiff Computer Support, Inc. ("CSI"), by and through its counsel, Rhoads & Sinon LLP, and files the within Motion for Sanctions pursuant to Pa.R.C.P. 4019 as follows: 1. On or about April 11, 2007, CSI filed a Complaint against Defendant Smart Transportation Services, Inc. ("Smart") for unpaid invoices totaling $37,117.42. 2. Pursuant to Pa. R. C. P. 4005 and Pa. R. C. P. 4009.1 et sec on or about November 16, 2007, CSI served Smart with Plaintiff's First Set of Interrogatories and Request for Production of Documents. 3. Specifically, CSI served six (6) interrogatories and twelve (12) requests for production of documents on Smart, which are narrowly tailored to focus on trial evidence and Smart's computer system and software applications, the specific subject matter of this lawsuit. 693933.1 4. Smart has never provided any written response to the foregoing discovery, and did not otherwise object thereto or produce any responsive documents. 5. Pursuant to local rule 208.2(d) and in an effort to resolve this matter without judicial intervention, on March 12, 2008, undersigned counsel for CSI wrote to Matthew J. Eshelman, counsel for Smart, notifying him that the responses were overdue by many months and requested that his client respond by March 21, 2008. 6. Smart did not respond to the undersigned's correspondence. 7. On or about March 27, 2008, CSI filed a Motion to Compel answers to discovery. 8. On or about April 14, 2008, the Court issued a Rule upon Smart to show cause why CSI's Motion to Compel Discovery should not be granted. Smart was required to respond to the Rule within 20 days of service. 9. Smart did not comply with the Court's Rule to Show Cause nor did Smart provide the requested answers to CSI's written discovery. 10. In the absence of any such response, on or about May 7, 2008, CSI filed a Motion to make the Court's April 14, 2008 Rule Absolute. 11. On or about May 13, 2008, the Court issued an Order making its April 14, 2008 Rule Absolute and ordered Smart to respond, without objection, to CSI's First Set of Interrogatories and Request for Production of Documents within 20 days. 2 12. Notwithstanding the Court's May 13, 2008 Order, Smart has steadfastly failed and refused to respond to CSI's First Set of Interrogatories and Request for Production of Documents. 13. Pennsylvania Rule of Civil Procedure 4019 authorizes trial courts to impose sanctions upon parties that fail to comply with the rules governing discovery. Rule 4019(c)(3) specifically authorizes a trial court to impose a default judgment as such a sanction. Whether to do so lies with the sound discretion of the trial court. Miller Oral Surgery Inc. v. Dinello, 416 Pa. Super. 310, 313 (1992). 14. In choosing a sanction, the trial court must weigh the procedural need to dispose of the case promptly against the substantive rights of the parties. Id. 15. A trial court must consider several factors in imposing a sanction for failure to comply with discovery requests: (1) whether the failure prejudiced the opposing party; (2) if so, whether such prejudice can be cured; (3) whether the defaulting party acted willfully or in bad faith; and (4) the number of such violations. See Steinfurther v. LaManna, 404 Pa. Super. 384, 388-89 (1991). 16. Clearly, CSI has been and continues to be prejudiced by Smart's repeated failures to respond to discovery and willful disregard of the Court's Order. Moreover, CSI cannot pursue its case without the necessary evidence and discovery requested and ordered by this Court. 17. Further, Smart's discovery responses are now overdue by six (6) months and during that time Smart has: (a) refused to timely respond to CSI's written discovery; (b) refused 3 to respond to correspondence from the undersigned requesting overdue responses to discovery; (c) ignored this Court's Rule to Show Cause concerning CSI's motion to compel; and (d) completely disregarded Court's Order compelling Smart's discovery responses within 20 days. 18. Smart had several opportunities to respond to CSI's discovery requests and this Court's Rule and Order, but has willfully refused to do so. 19. It is clear from the record that the Smart does not intend to comply with this Court's Orders. Under these circumstances, the Court cannot and should not countenance continued disobedience of its Order. 20. As the Supreme Court observed under similar circumstances in Isenberger v. Schumann, 415 Pa. 217 (1964): Confronted with the outright refusal of the defendants to answer Interrogatories which this Court directed to be answered, this Court has two alternatives available: Either to allow defendants to defy an Order of Court without any adverse results, or to apply the provisions of Pennsylvania Rule of Civil Procedure 4019(c) and impose an appropriate sanction. To permit defendants to disregard an Order of Court is unthinkable, as it would totally destroy the effectiveness of the discovery procedure of our Courts. Obviously, then, the Court was forced to take the second alternative. Id. at 218. 21. Entry of a default judgment is a proper course of action when a party unreasonably fails to answer interrogatories, thus preventing the case of action from going forward. See Miller Oral Surgery, Inc. v. Dinello, 416 Pa. Super. 310, 316 (1992)(citing Isenberger v. Schumann, 415 Pa. 217 (1964)). 4 22. The same result is warranted here where Smart has repeatedly and out rightly refused to answer CSI's interrogatories and produce documents, as Ordered by this Court. 23. This is especially true where, as here, answering CSI's interrogatories is the only source of information to prove or disprove CSI's allegations and arguably support Smart's defenses. 24. To permit Smart to completely violate this Court's Order and disregard its authority is unthinkable and would destroy the effectiveness of the discovery procedures of our Courts. 25. CSI's damages are clear, concrete, and supported by CSI's invoices. Therefore, a judgment by default in the amount of $37,117.42 should be entered by this Court. 26. Finally, this Court should direct Smart to pay the CSI's costs and attorneys fees incurred in pursuing discovery. WHEREFORE, CSI respectfully requests that the Court grant CSI's motion for sanctions and enter default judgment against Defendant Smart Transportation Services, Inc. in the amount of $37,117.42 together with interest, costs, reasonable attorneys' fees, and any other amount this Court deems just and proper. RHOADS & SINON LLP By: Todd J. Shill One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Dated: June 17, 2008 Attorneys for Plaintiff Computer Support, Inc. CERTIFICATE OF SERVICE I hereby certify that on this 17?' day of June 2008, the foregoing Plaintiff Computer Support, Inc.'s Motion for Sanctions was served by means of United States mail, first class, postage prepaid, upon the following: MATTHEW J. ESHELMAN, ESQUIRE P.O. BOX 1080 CAMP HILL, PA 17001-1080 6 n r-a ? ? - -rt r'?9' ? --- {{ . T - . r7 ?1 ? l.D j 1. ? „?.. ? ` ?? .. ? ?a --G COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW SMART TRANSPORTATION SERVICES, INC., Defendant NO. 07-2011 CIVIL TERM ORDER OF COURT AND NOW, this 25 h day of June, 2008, upon consideration of Plaintiff Computer Support, Inc.'s Motion for Sanctions, a hearing is scheduled for Wednesday, August 6, 2008, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Z Todd J. Shill Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff Matthew J. Eshelman Esq. P.O. Box 1080 Camp Hill, PA 17011-1080 Attorney for Defendant rc ink c l fc?., 1-/074/e* =1119 BY THE COURT, I ? Wesley O4Jr., . "? .oi v 9Z to r ow ,Hi Z-10 r i COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW SMART TRANSPORTATION SERVICES, INC., Defendant NO. 07-2011 CIVIL TERM ORDER OF COURT AND NOW, this 6th day of August, 2008, upon consideration of Plaintiff Computer Support, Inc.'s Motion for Sanctions, and pursuant to an agreement reached in open court between counsel for the Plaintiff, Todd J. Shill, Esquire, and counsel for the Defendant, Matthew J. Eshelman, Esquire, it is ordered and directed as follows: 1. Defendant shall pay Plaintiff $2,000, representing a sanction for failure to respond to Plaintiff's discovery request, as well as its failure to respond to orders issued by the Court regarding those discovery requests, said amount to be payable within 20 days from the date of this order. 2. Defendant shall respond in full and without objection to Plaintiff's outstanding discovery requests within 20 days from the date of this order. Said responses shall be verified by an authorized representative of the Defendant. 3. Should Defendant fail to pay the foregoing sanction to Plaintiff and/or respond to the discovery request as outlined above, judgment shall be entered in favor of Plaintiff in the amount of $37,117.42, plus $6,000.00 representing attorney's fees. Said judgment shall be entered without an additional hearing on this matter upon motion of the Plaintiff. Inc,-? ri.',, ,-RemnJ a: o =5 WV t - 9nV BOOZ nil ViWj -ti AO KIL ? -C1 s '14. By the Court, Xodd J. Shill, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 For Plaintiff Xatthew J. Eshelman, Esquire P.O. Box 1080 Camp Hill, PA 17011-1080 For Defendant :pcb V , C/ .O Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff V. SMART TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-2011: JURY TRIAL DEMANDED Defendant. PLAINTIFF COMPUTER SUPPORT, INC.'S MOTION TO COMPEL DISCOVERY NOW COMES Plaintiff Computer Support, Inc. ("CSI"), by and through its counsel Rhoads & Sinon LLP, and files the within Motion to Compel as follows: Background 1. CSI instituted this action against Defendant Smart Transportation Services, Inc. ("Smart") on or about April 11, 2007 by filing a Complain. 2. CSI is a provider of computer software for the trucking industry. 3. Smart is engaged in the trucking business. In furtherance of its business, Smart entered into an Agreement with CSI to purchase a license for use of CSI's computer software and for consulting and support services. 4. In accordance with the Agreement, CSI provided the license to Smart as well as consulting and support services. However, Smart has refused to pay for the license fee and for CSI's consulting and support services, totaling $37,117.42. Previous Rulings 5. On August 6, 2008, upon CSI's Motion for Sanctions, and after a hearing, the Honorable J. Wesley Oler, Jr. ordered Smart to pay sanctions for failing to respond to CSI's discovery requests despite this Court's Order of May 13, 2008 directing Smart to respond without objection to CSI's discovery requests. True and correct copies of this Court's August 6, 2008 Order and May 13, 2008 Order are attached hereto as Exhibits A and B, respectively. Discovery Issue 6. Pursuant to Rule 4007.1 of the Pennsylvania Rules of Civil Procedure, on or about January 8, 2009, CSI served Smart with Deposition Notices for Oliver Smart, Aubrey Smart, and Jesse Maldonado. The depositions were scheduled to be held at CSI's counsel's offices on January 22, 2009. True and correct copies of the Deposition Notices and cover letter enclosing same are attached hereto as Exhibit C. 7. Only a few days before the scheduled depositions, Smart's counsel called to inform CSI's counsel that the noticed deponents would not be attending their depositions, and that he would be providing a list of alternative available dates. CSI's counsel confirmed this arrangement via a letter dated February 3, 2009. A true and correct copy of this letter is attached hereto as Exhibit D. 8. Smart never provided CSI with a list of available dates. 9. Accordingly, on or about February 17, 2009, CSI served Smart with Amended Deposition Notices for Oliver Smart, Aubrey Smart, and Jesse Maldonado. The depositions were scheduled to be held at CSI's counsel's offices on March 3, 2009. True and correct copies of the Amended Deposition Notices and cover letter enclosing same are attached hereto as Exhibit E. -2- i i 10. Like before, only a few days before the scheduled depositions, Smart's counsel called to inform CSI's counsel that the noticed deponents would not be attending their depositions. 11. CSI now seeks an Order from this Court compelling the foregoing deponents' presence at a deposition, to be held at CSI's counsel's office, within thirty days of the issuance of such an Order. 12. Pursuant to Local Civil Rule 208.2(d), on April 2, 2009, counsel for CSI emailed counsel for Smart seeking concurrence in the within Motion to Compel Discovery. He does not concur in the filing of this Motion. WHEREFORE, CSI respectfully requests that this Court issue an Order directing Oliver Smart, Aubrey Smart, and Jesse Maldonado to appear and give deposition testimony at the offices of CST's counsel within thirty days of the issuance of such an Order. Respectfully submitted, By: Todd J. Shill, Rhoads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Dated: q/3 /09 -3- Exhibit A 0 COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW SMART TRANSPORTATION SERVICES, INC., Defendant NO. 07-2011 CIVIL TERM ORDER OF COURT AND NOW, this 6th day of August, 2008, upon consideration of Plaintiff Computer Support, Inc.'s Motion for Sanctions, and pursuant to an agreement reached in open court between counsel for the Plaintiff, Todd J. Shill, Esquire, and counsel for the Defendant, Matthew J. Eshelman, Esquire, it is ordered and directed as follows: 1. Defendant shall pay Plaintiff $2,000, representing a sanction for failure to respond to Plaintiff's discovery request, as well as its failure to respond to orders issued by the Court regarding those discovery requests, said amount to be payable within 20 days from the date of this order. 2. Defendant shall respond in full and without objection to Plaintiff's outstanding discovery requests within 20 days from the date of this order. Said responses shall be verified by an authorized representative of the Defendant. 3. Should Defendant fail to pay the foregoing sanction to Plaintiff and/or respond to the discovery request as outlined above, judgment shall be entered in favor of Plaintiff in the amount. of $37,117.42, plus $6,000.00 representing attorney's fees. Said judgment shall be entered without an additional hearing on this matter upon motion of the Plaintiff. L? lr Todd J. Shill, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 For Plaintiff Matthew J. Eshelman, Esquire P.O. Box 1080 Camp Hill, PA 17011-1080 For Defendant By the Court, :pcb Exhibit B 4 COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW SMART TRANSPORTATION SERVICES, INC., Defendant NO. 07-2011 CIVIL TERM ORDER OF COURT AND NOW, this 13th day of May, 2008, upon consideration of Plaintiff's Motion To Make Rule Absolute, the motion is granted and the Rule issued on April 14, 2008, is made absolute. Defendant is ordered to respond without objection to Plaintiff's First Set of Interrogatories and Request for Production of Documents within 20 days of the date of this order. BY THE COURT, 1J / 17 J/ Wesley Ole Jr., , Toe" J. Shill, Esq. 9,1e outh Market Square O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-10808 Attorney for Defendant TRUE COP%' :rc 1 Tfs, r- #h,nv v<irswf, 6 fi tHw? =a s_. + rpy i€arsd Wd the c` : -4111 CoW ¢:< car:isle. Pa.. TW oc_- _ „?,1.A,.y Exhibit C BROADS & SINON LLP Todd J. Shill ph (717) 231-6665 fx (717) 231-6637 tshill@rhoads-sinon.com FILENO? 6287/30 January 8, 2009 Re: Computer Support, Inc. v. Smart Transportation Services, Inc., In the Court of Common Pleas, Cumberland County, Pennsylvania, Civil Action Law, No 07-2011 Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 Dear Matt: We are enclosing and serving Notices of Deposition for Oliver Smart, Aubrey Smart, and Jesse Maldonado in the above-referenced matter. The depositions are scheduled for Thursday, January 22, 2009 in our offices, commencing at 9:00 a.m. Very truly yours, RHOADS & SINON LLP By: 1 -1 Todd J. Shill Enclosures cc: Fred Nichols (w/encls.) 727816.1 Rhoads & Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box 1146 Harrisburg, PA 17108-1146 • ph (717) 233-5731 • fx (717) 232-1459 • www.rhoads-sinon.com Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. I N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C IVIL ACTION - LAW NO. 07 -2011: JURY TRIA L DEMANDED NOTICE OF DEPOSITION TO: Aubrey Smart c/o Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff will take the deposition of Aubrey Smart, upon oral examination, for the purpose of discovery or for use at trial, before a Notary Public, or other person authorized to administer oaths at the law firm of Rhoads & Sinon LLP, One South Market Square, 12'h Floor, Harrisburg, Pennsylvania, 17101, on Thursday, January 22, 2009, beginning at 11:00 a.m. and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues and subject matter involved in the above-captioned action, and that the above-named 727807.1 person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. RHOADS & SINON LLP By: ° Todd J. Shi One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Computer Support, Inc. Dated: January 8, 2009 2 CERTIFICATE OF SERVICE I hereby certify that on this 8 h day of January 2009, the foregoing "Notice of Deposition" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 - f." q, A, Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & S[NON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731. Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. I N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C IVIL ACTION - LAW NO. 07 -2011: : JURY TRIA L DEMANDED NOTICE OF DEPOSITION TO: Oliver Smart c/o Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff will take the deposition of Oliver Smart, upon oral examination, for the purpose of discovery or for use at trial, before a Notary Public, or other person authorized to administer oaths at the law firm of Rhoads & Sinon LLP, One South Market Square, 12th Floor, Harrisburg, Pennsylvania, 17101, on Thursday, January 22, 2009, beginning at 9:00 a.m. and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues and subject matter involved in the above-captioned action, and that the above-named 727797 1 person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. RHOADS & SINON LLP By: Todd J. Shill One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Computer Support, Inc. Dated: January 8, 2009 2 CERTIFICATE OF SERVICE I hereby certify that on this 8th day of January 2009, the foregoing "Notice of Deposition" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 \ cw? 0?-kv? Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146, Harrisburg, PA 17108-1 146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. I N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C IVIL ACTION - LAW NO. 07 -2011: : JURY TRIA L DEMANDED NOTICE OF DEPOSITION TO: Jesse Maldonado c/o Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff will take the deposition of Jesse Maldonado, upon oral examination, for the purpose of discovery or for use at trial, before a Notary Public, or other person authorized to administer oaths at the law firm of Rhoads & Sinon LLP, One South Market Square, 12th Floor, Harrisburg, Pennsylvania, 17101, on Thursday, January 22, 2009, beginning at 2:00 p.m. and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues and subject matter involved in the above-captioned action, and that the above-named 727810 1 person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. RHOADS & SINON LLP By: Todd J. Shi One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Computer Support, Inc. Dated: January 8, 2009 2 CERTIFICATE OF SERVICE I hereby certify that on this 8th day of January 2009, the foregoing "Notice of Deposition" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 ?J6 m4- Exhibit D _111 BROADS & SINON LLP Todd J. Shill ph (717) 231-6665 fx (717) 231-6637 tshill@rhoads-sinon.com FILENO 6287/30 February 3, 2009 Re: Computer Support, Inc. v. Smart Transportation Services, Inc., In the Court of Common Pleas, Cumberland County, Pennsylvania, Civil Action Law, No 07-2011 Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, 13A 17001-1080 Dear Mr. Eshelman: Your last message to me indicated that you would provide alternative dates for your clients' depositions. Please do so as soon as possible. In addition, although my client is willing to permit the majority of depositions to be conducted via telephone, we expect and will require the Defendant's owner to appear in person for his deposition at our offices. Please contact me as soon as possible regarding scheduling so that we can avoid, once again, asking the Court to intervene. Thank you. Very truly yours, RHOADS & SINON LLP By: Todd J. Shill cc: Fred Nichols 730663.1 Rhoads & Sinon LLP Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box 1146 Harrisburg, PA 17108-1146 • ph (717) 233-5731 • fx (717) 232-1459 • www.rhoads-sinon.com Exhibit E RHOADS & SINON LLP Todd J. Shill ph (717) 231-6665 ft (717) 231-6637 tshill@rhoads-sinon.com FILE No 6287/30 February 17, 2009 Re: Computer Support, Inc. v. Smart Transportation Services, Inc., In the Court of Common Pleas, Cumberland County, Pennsylvania, Civil Action Law, No 07-2011 Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 Dear Matt: We are enclosing and serving Amended Notices of Deposition for Oliver Smart, Aubrey Smart, and Jesse Maldonado in the above-referenced matter. The depositions are scheduled for Tuesday, March 3, 2009 in our offices, commencing at 9:00 a.m. Very truly yours, RHOADS & SINON LLP By: Todd J. Shill Enclosures cc: Fred Nichols (w/encls.) 732239.1 Rhoads & Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box 1146 Harrisburg, PA 17108-1146 • ph (717) 233-5731 • fx (717) 232-1459 • www.rhoads-sinon.com Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SNON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER. SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-2011: JURY TRIAL DEMANDED AMENDED NOTICE OF DEPOSITION TO: Oliver Smart c/o Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff will take the deposition of Oliver Smart, upon oral examination, for the purpose of discovery or for use at trial, before a Notary Public, or other person authorized to administer oaths at the law firm of Rhoads & Sinon LLP, One South Market Square, 12th Floor, Harrisburg, Pennsylvania, 17101, on Tuesday, March 3, 2009, beginning at 9:00 a.m. and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues and subject mutter involved in the above-captioned action, and that the above-named 727797 1 person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. RHOADS & SINON LLP By: Todd J. S One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Computer Support, Inc. Dated: February 17, 2009 2 CERTIFICATE OF SERVICE I hereby certify that on this 17`x' day of February 2009, the foregoing "Amended Notice of Deposition" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW : NO. 07-2011: JURY TRIAL DEMANDED AMENDED NOTICE OF DEPOSITION TO: Aubrey Smart c/o Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff will take the deposition of Aubrey Smart, upon oral examination, for the purpose of discovery or for use at trial, before a Notary Public, or other person authorized to administer oaths at the law firm of Rhoads & Sinon LLP, One South Market Square, 12th Floor, Harrisburg, Pennsylvania, 17101, on Tuesday, March 3, 2009, beginning at 11:00 a.m. and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues and subject matter involved in the above-captioned action, and that the above-named 732237.1 person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. RHOADS & SINON LLP By: Todd J. Shy One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Computer Support, Inc. Dated: February 17, 2009 2 CERTIFICATE OF SERVICE I hereby certify that on this 17Ih day of February 2009, the foregoing "Amended Notice of Deposition" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 I I • Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER. SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-2011: : JURY TRIAL DEMANDED Defendant. AMENDED NOTICE OF DEPOSITION TO: Jesse Maldonado c/o Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff will take the deposition of Jesse Maldonado, upon oral examination, for the purpose of discovery or for use at trial, before a Notary Public, or other person authorized to administer oaths at the law firm of Rhoads & Sinon LLP, One South Market Square, 12'h Floor, Harrisburg, Pennsylvania, 17101, on Tuesday, March 3, 2009, beginning at 2:00 p.m. and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues and subject matter involved in the above-captioned action, and that the above-named 732238.1 , . . person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. RHOADS & SINON LLP By: Todd J. S ' 1 One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Computer Support, Inc. Dated: February 17, 2009 2 . . , CERTIFICATE OF SERVICE I hereby certify that on this 17"' day of February 2009, the foregoing "Amended Notice of Deposition" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 CERTI(tFIICATE OF SERVICE I hereby certify that on this 3 day of April 2009, the foregoing "Motion to Compel Discovery" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman P.O. BOX 1808 Camp Hill, PA 17001-1080 Attorney for Defendant 0F THE P R j ' .5 ' 3 ArRY 2039 APR - F 1 2: c 1 ? s COMPUTER SUPPORT, V. SMART TRANSPORTATI SERVICES, INC., AND NOW, this Computer Support, Inc.'s to show cause why the relief RULE Todd J. Shill, Esq. oads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-114( Attorney for Plaintiff ?tthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-108 Attorney for Defendant APR 0 7 `20996 1 ., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA if CIVIL ACTION -LAW NO. 07-2011: N JURY TRIAL DEMANDED ORDER OF COURT day of r, I , 2009, upon consideration of Plaintiff i to Compel Discovery, a Rule is hereby issued upon the Defendant should not be granted. within 20 days of service. J BY THE COURT: 8Z :$ WV ? ! 8dti 6NZ 31? JO 30I_'H O-031IJ Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-2011: : JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO MAKE RULE ABSOLUTE NOW COMES, Plaintiff, Computer Support, Inc. ("CSI"), by and through its counsel Rhoads & Sinon LLP, and files the within Motion To Make Rule Absolute, as follows: 1. On or about April 3, 2009, CSI filed a Motion to Compel Discovery seeking an Order from this Court compelling certain representatives of Defendant, Smart Transportation Services, Inc. ("Smart"), to be present for a deposition at CSI's counsel's offices within thirty days of the issuance of such an Order. 2. Prior to the filing of the Motion to Compel Discovery, Smart had twice cancelled previously-noticed depositions only days before they were scheduled to be held at the offices of CSI's counsel. 3. On or about April 10, 2009, this Court entered an Order issuing a Rule upon Smart to show cause why CSI's Motion to Compel Discovery should not be granted. A true and correct copy of that Order is attached hereto as Exhibit A. 4. As indicated on the attached Order, the Court served Plaintiff's counsel, Matthew Eshelman, Esq., with a copy of the Order on or about April 10, 2009. 747646.1 5. The Rule issued was returnable within twenty (20) days after service, which, as previously noted, was made on April 10, 2009. 6. Eighty-seven (87) days have now passed since service of said Rule. 7. To date, Smart has not responded to CSI's Motion in accordance with this Court's Order dated April 10, 2009. WHEREFORE, Plaintiff, Computer Support, Inc., respectfully requests that this Court make its April 10, 2009 Rule Absolute and grant CSI's Motion to Compel Discovery, as set forth in the proposed Order attached hereto as Exhibit B. RHOADS & SINON LLP By: - Todd J. Shill One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Dated: July 10, 2009 Attorneys for Plaintiff Computer Support, Inc. 747646.1 - 2 - CERTIFICATE OF SERVICE I hereby certify that on this 10th day of July 2009, the foregoing "Plaintiff's Motion to Make Rule Absolute" was served by means of United States mail, first class, postage prepaid, upon the following: MATTHEW J. ESHELMAN, ESQUIRE P.O. BOX 1080 CAMP HILL, PA 17001-1080 EXHIBIT A (The Court's April 10, 2009 Order) 4 APRe ,#30Y COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. SMART TRANSPORTATION SERVICES, INC., Defendant. CIVIL ACTION - LAW NO. 07-2011: JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this )% day of AP-9:1 11 , 2009, upon consideration of Plaintiff Computer Support, Inc.'s Motion to Compel Discovery, a Rule is hereby issued upon the Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. Todd J. Shill, Esq. Rhoads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-10808 Attorney for Defendant BY THE COURT: S j QW, At EXHIBIT B (Proposed Order) COMPUTER SUPPORT, INC., Plaintiff V. SMART TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-2011: : JURY TRIAL DEMANDED Defendant. RULE ABSOLUTE AND NOW, this day of , 2009, the Court's April 10, 2009 Rule is made absolute and Plaintiff's Motion to Compel is GRANTED. Defendant shall produce the following representatives for a deposition to be held at Plaintiff's counsel's offices within thirty days of the issuance of this Order without objection: Oliver Smart, Aubrey Smart, and Jesse Maldonado. If Defendant fails to do so, Defendant shall be sanctioned upon Plaintiffs further application to this Court. BY THE COURT: J. Wesley Oler, Jr., J. Todd J. Shill, Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-1080 Attorney for Defendant CAF 7 HG 2039J,-; -1 1 3 ET's I : f;14 1 ? t COMPUTER SUPPORT, INC., Plaintiff V. SMART TRANSPORTATION SERVICES, INC., Defendant. JUL 14 20091; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-2011: JURY TRIAL DEMANDED r RULE ABSOLUTE AND NOW, this day of Xo &4 , 2009, the Court's April 10, 2009 Rule is made absolute and Plaintiff's Motion to Compel is GRANTED. Defendant shall produce the following representatives for a deposition to be held at Plaintiffs counsel's offices within thirty days of the issuance of this Order without objection: Oliver Smart, Aubrey Smart, and Jesse Maldonado. If Defendant fails to do so, Defendant shall be sanctioned upon Plaintiffs further application to this Court. /Todd J. Shill, Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff ,Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-1080 Attorney for Defendant A BY THE COURT: FILES EJL r 1,,JA r r„ 2009 JU € 6 PH 12: 3 2 Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2011: JURY TRIAL DEMANDED PLAINTIFF COMPUTER SUPPORT, INC.'S MOTION FOR SANCTIONS NOW COMES, Plaintiff, Computer Support, Inc. ("CSI"), by and through its undersigned counsel, Rhoads & Sinon LLP, and files the within Motion for Sanctions pursuant to Pa. R.C.P. No. 4019 as follows: Background 1. CSI instituted this action against Defendant, Smart Transportation Services, Inc. ("Smart"), on or about April 11, 2007 by filing a Complaint. 2. CSI is a provider of computer software for the trucking industry. 3. Smart is engaged in the trucking business. In furtherance of its business, Smart entered into an Agreement with CS] to purchase a license for use of CSI's computer software and for consulting and support services. 4. In accordance with the Agreement, CSI provided the license to Smart as well as consulting and support services. Smart, however, has refused to pay for the license fee and for CSI's consulting and support services, totaling $37,117.42. 753333.1 Previous Discovery Issues and Court Orders/Rulings 5. Pursuant to Pa. R.C.P. Nos. 4005 and 4009.1 et seq., on or about November 16, 2007, CSI served Smart with Plaintiff's First Set of Interrogatories and Request for Production of Documents. 6. Specifically, CSI served six interrogatories and twelve requests for production of documents, which were narrowly tailored to focus on trial evidence such as Smart's computer system and software applications, the specific subject matter of this lawsuit. 7. After nearly four months, Smart had failed to provide CIS with any responses to the foregoing discovery and did not otherwise object thereto. 8. Pursuant to Local Rule 208.2(d)-and in an effort to resolve this matter without judicial intervention-on March 12, 2008, undersigned counsel for CSI wrote to Matthew J. Eshelman, counsel for Smart, notifying him that the responses were overdue by many months and requested that his client respond by March 21, 2008. A true and correct copy of this letter is attached hereto as Exhibit A. 9. Smart did not respond to the undersigned's correspondence. 10. Accordingly, on or about March 27, 2008, CSI filed a Motion to Compel answers to discovery. A true and correct copy of this Motion is attached hereto as Exhibit B. 11. On or about April 14, 2008, this Court issued a Rule upon Smart to show cause why CSI's Motion to Compel Discovery should not be granted. Smart was required to respond to the Rule within 20 days of service. A true and correct copy of this Rule to Show Cause is attached hereto as Exhibit C. 12. Smart did not comply with the Rule to Show Cause, nor did Smart provide the requested answers to CSI's written discovery. 2 i 13. In the absence of any such response, on or about May 7, 2008, CSI filed a Motion to make this Court's April 14, 2008 Rule Absolute. A true and correct copy of this Motion is attached hereto as Exhibit D. 14. Thereafter, on or about May 13, 2008, this Court issued an Order making its April 14, 2008 Rule Absolute and ordered Smart to respond, without objection, to CSI's First Set of Interrogatories and Request for Production of Documents within 20 days. A true and correct copy of this Order is attached hereto as Exhibit E. 15. Notwithstanding this Court's May 13, 2008 Order, Smart continued in its refusal to respond to CSI's First Set of Interrogatories and Request for Production of Documents. 16. Consequently, CSI filed a Motion for Sanctions. After a hearing held on August 6, 2008, this Court entered an Order directing Smart as follows: a. Defendant shall pay Plaintiff $2,000, representing a sanction for failure to respond to Plaintiff's discovery request, as well as its failure to respond to orders issued by the Court regarding those discovery requests, said amount to be payable within 20 days from the date of this order. b. Defendant shall respond in full and without objection to Plaintiffs outstanding discovery requests within 20 days from the date of this order. Said responses shall be verified by an authorized representative of the Defendant. C. Should Defendant fail to pay the foregoing sanction to Plaintiff and/or respond to the discovery request as outlined above, judgment shall be entered in favor of Plaintiff in the amount of $37,117.42, plus $6,000 representing attorney's fees. Said judgment shall be entered without an additional hearing on this matter upon motion of the Plaintiff. A true and correct coy of this Order is attached hereto as Exhibit F. 17. Smart then responded to CSI's discovery requests and paid the $2,000 sanction as outlined above. 18. Nevertheless, Smart's failure to comply with CSI's discovery efforts continued. 3 19. Pursuant to Pa. R.C.P. No. 4007. 1, on or about January 8, 2009, CSI served Smart with Deposition Notices for Oliver Smart, Aubrey Smart, and Jesse Maldonado, representatives of Smart identified in Smart's discovery responses. The depositions were scheduled to be held at CSI's counsel's offices on January 22, 2009. True and correct copies of the Deposition Notices and cover letter enclosing same are attached hereto as Exhibit G. 20. Only a few days before the scheduled depositions, Smart's counsel called to inform CSI's counsel that the noticed deponents would not be attending their depositions, and that he would be providing a list of alternative available dates. CSI's counsel confirmed this arrangement via a letter dated February 3, 2009. A true and correct copy of this letter is attached hereto as Exhibit H. 21. Smart never provided CSI with a list of available dates. Accordingly, on or about February 17, 2009, CSI served Smart with Amended Deposition Notices for Oliver Smart, Aubrey Smart, and Jesse Maldonado. The depositions were scheduled to be held at CSI's counsel's offices on March 3, 2009. True and correct copies of the Amended Deposition Notices and cover letter enclosing same are attached hereto as Exhibit I. 22. Like before, a few days prior to the scheduled depositions, Smart's counsel called to inform CSI's counsel that the noticed deponents would not be attending their depositions. 23. Consequently, on or about April 3, 2009, CSI filed a Motion to Compel Discovery seeking an Order from this Court compelling Oliver Smart, Aubrey Smart, and Jesse Maldonado (representatives of Smart), to be present for a deposition at CSI's counsel's offices within thirty days of the issuance of such an Order. A true and correct copy of this Motion is attached hereto as Exhibit J. 4 24. Thereafter, on or about April 10, 2009, this Court entered an Order issuing a Rule upon Smart to show cause why CSI's Motion to Compel Discovery should not be granted. A true and correct copy of this Rule to Show Cause is attached hereto as Exhibit K. 25. As indicated on the Rule to Show Cause, this Court served Plaintiff's counsel, Matthew Eshelman, Esq., with a copy of the Order on or about April 10, 2009. 26. Smart did not comply with the Rule to Show Cause. 27. In the absence of any such response, on or about July 13, 2009, CSI filed a Motion to make this Court's April 10, 2009 Rule Absolute. A true and correct copy of this Motion is attached hereto as Exhibit L. 28. On or about July 15, 2009, this Court issued an Order making its April 10, 2009 Rule Absolute and ordered Smart to produce Oliver Smart, Aubrey Smart, and Jesse Maldonado for a deposition to be held at CSI's counsel's offices within thirty days of the issuance of the Order. A true and correct copy of this Order is attached hereto as Exhibit M. 29. As indicated on the Order, the Court served Plaintiff's counsel with a copy of the Order on or about July 15, 2009. 30. Notwithstanding this Court's July 15, 2009 Order, Smart has not contacted CSI's counsel to provide available dates for its representatives' depositions, nor has it made any effort to produce these individuals to be deposed. Argument in Support of Sanctions 31. Pa. R.C.P. No. 4019 authorizes trial courts to impose sanctions upon parties that fail to comply with the rules governing discovery. In particular, Rule 4019(c)(3) specifically authorizes a trial court, in its sound discretion, to impose a default judgment as such a sanction. Miller Oral Surgery Inc. v. Dinello, 611 A.2d 232, 234 (Pa. Super. 1992). 5 32. In choosing a sanction, the trial court must weigh the procedural need to dispose of the case promptly against the substantive rights of the parties. Id. 33. A trial court must consider several factors in imposing a sanction for failure to comply with discovery requests: (1) whether the failure prejudiced the opposing party; (2) if so, whether such prejudice can be cured; (3) whether the defaulting party acted willfully or in bad faith; and (4) the number of such violations. See Steinfurther v. LaManna, 590 A.2d 1286, 1288- 89 (Pa. Super. 1991). 34. Clearly, CSI has been and continues to be prejudiced by Smart's repeated failures to respond to, and participate in, discovery-including its willful and continued disregard of this Court's Orders. Moreover, CSI simply cannot pursue its case without the necessary evidence and discovery requested and ordered by this Court. 35. As established by the attached exhibits and the foregoing recitation of events, Smart has demonstrated a continued unwillingness to engage in good faith in the discovery process. Indeed, it took no less than the imposition of sanctions and threat of judgment to force Smart to respond to CSI's written discovery requests. 36. Smart has had numerous opportunities to comply with CSI's Deposition Notices and this Court's Orders. It has simply failed and refused to do so. 37. To be sure, it is clear from the record that, like before, Smart has no intention of complying with this Court's Order regarding the depositions of Smart's representatives, and this Court should not tolerate continued disobedience of its Order. 38. As the Superior Court of Pennsylvania observed under similar circumstances in Luszczynksi v. Bradley, 729 A.2d 83 (Pa. Super. 1999): In this case, [the defendant] had numerous opportunities to comply with the trial court's Orders and to proceed with its defense of the [plaintiff's] claims prior to 6 EXHIBIT A 6555743 R, ? III I?I ? E ,` j LiTj OAi/ 5:.. ??? ey s r r yi N t l Todd J. Shill Fax No: 6287/30 March 12, 2008 Re: Computer Support, Inc. v. Smart Transportation Services, Inc., In the Court of Common Pleas, Cumberland County, Pennsylvania, Civil Action Law, No. 07-2011 Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 Dear Mr. Eshelman: Your client's discovery responses are overdue by many months. If we do not receive responses by the end of next week, March 21, 2008, we will have no choice but to file the appropriate motions to compel. Thank you for your cooperation. Very truly yours, RHOADS & S1NoN LLP By: Todd J. Shill cc: Fred Nichols 682500.1 Rhoads & Sinon LLP - Attorneys at Law - Twelfth Floor - One South Market Square - P.O. Box 1146 Mnrrichnrn PA 171 f1 R-1 146 - nh (717) 233-5731 - (r (717) 232-1459 - www.rhoads-sinon.com EXHIBIT B Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff V. SMART TRANSPORTATION SERVICES, INC., Defendant. f F ?`? o 'J IN THE COURT OF COMMON PUAS OP CUMBERLAND COUNTY, PENT 'SYLVANIA- CIVIL ACTION - LAW NO. 07-2011: JURY TRIAL DEMANDED PLAINTIFF COMPUTER SUPPORT, INC.'S MOTION TO COMPEL DISCOVERY NOW COMES Plaintiff Computer Support, Inc. ("CSI"), by and through its counsel Rhoads & Sinon LLP, and files the within Motion to Compel as follows: Background CSI instituted this action against Defendant Smart Transportation Services, Inc. ("Smart") on or about April 11, 2007 by filing a Complaint. 2. CSI is a provider of computer software for the trucking industry. 3. Smart is engaged in the trucking business. In furtherance of its business, Smart entered into an Agreement with CSI to purchase a license for use of CSI's computer software and for consulting and support services. 683931.1 4. In accordance with the Agreement, CSI provided the license to Smart as well as consulting and support services. However, Smart has refused to pay for the license fee and for CSI's consulting and support services, totaling $37,117.42. Discovery Issues 5. Pursuant to Pa. R. C. P. 4005 and Pa. R. C. P. 4009.1 et se on or about November 16, 2007, CSI served Smart with Plaintiff's First Set of Interrogatories and Request for Production of Documents. A true and correct copy of Plaintiff's First Set of Interrogatories and Request for Production of Documents is attached hereto as Exhibit A. 6. Specifically, CSI served six (6) interrogatories and twelve (12) requests for production of documents on Smart, which are narrowly tailored to focus on trial evidence and Smart's computer system and software applications, the specific subject matter of this lawsuit. 7. Smart has not provided any written response to the foregoing discovery, and did not otherwise object thereto or produce any responsive documents. 8. Pursuant to local rule 208.2(d) and in an effort to resolve this matter without court intervention, on March 12, 2008, undersigned counsel for CSI wrote to Matthew J. Eshelman, counsel for Smart, notifying him that the responses were overdue by many months and requested that his client respond by March 21, 2008. A copy of this correspondence is attached hereto as Exhibit B. 9. Mr. Eshelman did not respond to the above correspondence. 2 10. As of this date, Smart has not provided answers to CSI's First Set of Interrogatories and Request for Production of Documents or any documents in response thereto. 11. Accordingly, CSI's motion to compel should be granted. WHEREFORE, CSI respectfully requests that the Court order Smart to respond to CSI's discovery within ten (10) days. CSI also respectfully requests that if Smart fails to respond to CSI's First Set of Interrogatories and Request for Production of Documents within ten (10) days, Defendant shall be sanctioned by the Court in a manner to be determined later. RHOADS & SINQN LLP By: Todd J. Shi One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Dated: March 25, 2008 Attorneys for Plaintiff Computer Support, Inc. 3 EXHIBIT C COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW SMART TRANSPORTATION SERVICES, INC., Defendant NO. 07-2011 CIVIL TERM ORDER OF COURT AND NOW, this 14`h day of April, 2008, upon consideration of Plaintiff Computer Support, Inc.'s Motion To Compel Discovery, a Rule is hereby issued upon the Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, esley Oler Jr., Todd J. Shill, Esq. 0 South Market Square .O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-10808 Attorney for Defendant :rc j :A lY?t! Wit% a R Caurt ;:s r-aois1$, F rhi& - ?? EXHIBIT D Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. SMART TRANSPORTATION SERVICES, INC., Defendant. CIVIL ACTION -LAW NO. 07-2011: JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO MAKE RULE ABSOLUTE NOW COMES Plaintiff, Computer Support, Inc. ("CSI"), by and through its counsel Rhoads & Sinon LLP, and files the within Motion To Make Rule Absolute, as follows: 1. On or about November 16, 2007, CSI served Plaintiff's First Set of Interrogatories and Request for Production of Documents on Defendant. 2. Defendant failed to respond to CSI's interrogatories and document requests. 3. On March 12, 2008, in accordance with local rule 208.2(d), the undersigned counsel wrote to counsel for Defendant, Matthew J. Eshelman, in an effort to resolve this discovery dispute without court intervention. 4. Mr. Eshelman did not respond to the undersigned's correspondence. 5. On or about March 27, 2008, CSI filed a Motion to Compel Discovery. 688950.1 k' 6. On or about April 14, 2008, the Court entered an Order issuing a Rule upon Defendant to show cause as to why CSI's Motion to Compel Discovery should not be granted. A true and correct copy of the Order is attached hereto as Exhibit "A". 7. As indicated in the attached Order, the Court served Plaintiffs counsel, Matthew Eshelman, Esq., with the Order on or about April 14, 2008. 8. The Rule issued was returnable within twenty (20) days after service, which, as noted above, was made on April 14, 2008. 9. Twenty-three (23) days have now passed since service of said Rule. 10. To date, Defendant has not responded to CSI's motion to compel discovery in accordance with the Court's Order dated April 14, 2008, nor has Defendant provided the requested answers to CSI's written discovery WHEREFORE, Plaintiff, Computer Support, Inc., respectfully requests that this Court make its April 14, 2008 Rule Absolute and grant Plaintiff s Motion to Compel Discovery, as set forth in the proposed Order filed with CSI's motion and attached as Exhibit "B." RHOADS & SINON LLP By: , Y Todd I Shy One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Dated: May 7, 2008 Attorneys for Plaintiff Computer Support, Inc. EXHIBIT E COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW SMART TRANSPORTATION SERVICES, INC., Defendant NO. 07-2011 CIVIL TERM ORDER OF COURT AND NOW, this 13th day of May, 2008, upon consideration of Plaintiff's Motion To Make Rule Absolute, the motion is granted and the Rule issued on April 14, 2008, is made absolute. Defendant is ordered to respond without objection to Plaintiff's First Set of Interrogatories and Request for Production of Documents within 20 days of the date of this order. BY THE COURT, J Wesley Ole Jr., Tod J. Shill, Esq. e XSouth Market Square O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-10808 Attorney for Defendant TRUE COPY FROM RECORU :rc 14 TUOmmy whemf, I here unto set my hand said Cowl at Carlisle. Pa, ? ?' ot- EXHIBIT F COMPUTER SUPPORT, INC., Plaintiff V. SMART TRANSPORTATION SERVICES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2011 CIVIL TERM ORDER OF COURT AND NOW, this 6th day of August, 2008, upon consideration of Plaintiff Computer Support, Inc.'s Motion for Sanctions, and pursuant to an agreement reached in open court between counsel for the Plaintiff, Todd J. Shill, Esquire, and counsel for the Defendant, Matthew J. Eshelman, Esquire, it is ordered and directed as follows: 1. Defendant shall pay Plaintiff $2,000, representing a sanction for failure to respond to Plaintiff's discovery request, as well as its failure to respond to orders issued by the Court regarding those discovery requests, said amount to be payable within 20 days from the date of this order. 2. Defendant shall respond in full and without objection to Plaintiff's outstanding discovery requests within 20 days from the date of this order. Said responses shall be verified by an authorized representative of the Defendant. 3. Should Defendant fail to pay the foregoing sanction to Plaintiff and/or respond to the discovery request as outlined above, judgment shall be entered in favor of Plaintiff in the amount of $37,117.42, plus $6,000.00 representing attorney's fees. Said judgment shall be entered without an additional hearing on this matter upon motion of the Plaintiff. IF s Todd J. Shill, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 For Plaintiff Matthew J. Eshelman, Esquire P.O. Box 1080 Camp Hill, PA 17011-1080 For Defendant By the Court, pcb EXHIBIT G I I 1 1\1 1 TOADS & SINON LLP Todd J. Shill ph (717) 231-6665 fx (717) 231-6637 tshill@rhoads-sinon.com Fn.eNO: 6287/30 January 8, 2009 Re: Computer Support, Inc. v. Smart Transportation Services, Inc., In the Court of Common Pleas, Cumberland County, Pennsylvania, Civil Action Law, No 07-2011 Matthew J. Eshelman, Esquire P. 0. Box 1080 Camp Hill, PA 17001-1080 Dear Matt: We are enclosing and serving Notices of Deposition for Oliver Smart, Aubrey Smart, and Jesse Maldonado in the above-referenced matter. The depositions are scheduled for Thursday, January 22, 2009 in our offices, commencing at 9:00 a.m. Enclosures cc: Fred Nichols (w/encls.) Very truly yours, RHOADS & SiNoN LLP By: Todd J. Shill 727816.1 Rhoads & Sinon LLP • Attorneys at Law - Twelfth Floor • One South Market Square.- P.O Narriehnra AA 1 71 nst_ 1 1 Ar . _1 i" ?N tee-, -, 1 _. - _ . . __ Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., : I N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, C IVIL ACTION - LAW V. : NO. 07 -2011: SMART TRANSPORTATION SERVICES, INC., JURY TRIA L DEMANDED Defendant. NOTICE OF DEPOSITION TO: Aubrey Smart c/o Matthew J. Eshelman, Esquire P. 0. Box 1080 Camp Hill, PA 17001-1080 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff will take the deposition of Aubrey Smart, upon oral examination, for the purpose of discovery or for use at trial, before a Notary Public, or other person authorized to administer oaths at the law firm of Rhoads & Sinon LLP, One South Market Square, 12th Floor, Harrisburg, Pennsylvania, 17101, on Thursday, January 22, 2009, beginning at 11:00 a.m. and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues and subject matter involved in the above-captioned action, and that the above-named 727807.1 person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. RHOADS & SINON LLP By: Todd J. Shi One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Computer Support, Inc. Dated: January 8, 2009 2 CERTIFICATE OF SERVICE I hereby certify that on this 8th day of January 2009, the foregoing "Notice of Deposition" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 ?-a q,)d" Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor RO. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. I N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C IVIL ACTION - LAW : NO. 07 -2011: : JURY TRIA L DEMANDED NOTICE OF DEPOSITION TO: Oliver Smart c/o Matthew J. Eshelman, Esquire P. 0. Box 1080 Camp Hill, PA 17001-1080 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff will take the deposition of Oliver Smart, upon oral examination, for the purpose of discovery or for use at trial, before a Notary Public, or other person authorized to administer oaths at the law firm of Rhoads & Sinon LLP, One South Market Square, 120' Floor, Harrisburg, Pennsylvania, 17101, on Thursday, January 22, 2009, beginning at 9:00 a.m. and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues and subject matter involved in the above-captioned action, and that the above-named 727797.1 person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. RHOADS & SINON LLP By: Todd J. Shill One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Computer Support, Inc. Dated: January 8, 2009 2 CERTIFICATE OF SERVICE I hereby certify that on this 8 h day of January 2009, the foregoing "Notice of Deposition" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman, Esquire P. 0. Box 1080 Camp Hill, PA 17001-1080 ?Cw? Ot 4,?? Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. I N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C IVIL ACTION - LAW NO. 07 -2011: : JURY TRIA L DEMANDED NOTICE OF DEPOSITION TO: Jesse Maldonado c/o Matthew J. Eshelman, Esquire P. 0. Box 1080 Camp Hill, PA 17001-1080 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff will take the deposition of Jesse Maldonado, upon oral examination, for the purpose of discovery or for use at trial, before a Notary Public, or other person authorized to administer oaths at the law firm of Rhoads & Sinon LLP, One South Market Square, 12th Floor, Harrisburg, Pennsylvania, 17101, on Thursday, January 22, 2009, beginning at 2:00 p.m. and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues and subject matter involved in the above-captioned action, and that the above-named 727810.1 person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. RHOADS & SINON LLP By: Todd J. Shi One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Computer.Support, Inc. Dated: January 8, 2009 2 CERTIFICATE OF SERVICE I hereby certify that on this 8t' day of January 2009, the foregoing "Notice of Deposition" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman, Esquire P. 0. Box 1080 Camp Hill, PA 17001-1080 EXHIBIT H 1 .' FRIJOADS II & SINON LLP Todd J. Shill ph (717) 231-6665 fx (717) 231-6637 tshill@rhoads-sinon.com MEND 6287/30 February 3, 2009 Re: Computer Support, Inc. v. Smart Transportation Services, Inc., In the Court of Common Pleas, Cumberland County, Pennsylvania, Civil Action Law, No. 07-2011 Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 Dear Mr. Eshelman: Your last message to me indicated that you would provide alternative dates for your clients' depositions. Please do so as soon as possible. In addition, although my client is willing to permit the majority of depositions to be conducted via telephone, we expect and will require the Defendant's owner to appear in person for his deposition at our offices. Please contact me as soon as possible regarding scheduling so that we can avoid, once again, asking the Court to intervene. Thank you. Very truly yours, RHOADS & SINON LLP By: Todd J. Shill 730663,1 cc: Fred Nichols Rhoads & Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Bo EXHIBIT I r BROADS II^ & SINON LLP f, J, Todd J. Shill ph (717) 231-6665 fx (717) 231-6637 tshill@rhoads-sinon.com FILENO 6287/30 February 17, 2009 Very truly yours, RHOADS & S1rlON LLP By: Todd J. Shill Re: Computer Support, Inc. v. Smart Transportation Services, Inc., In the Court of Common Pleas, Cumberland County, Pennsylvania, Civil Action Law, No 07-2011 Matthew J. Eshelman, Esquire P. 0. Box 1080 Camp Hill, PA 17001-1080 Dear Matt: We are enclosing and serving Amended Notices of Deposition for Oliver Smart, Aubrey Smart, and Jesse Maldonado in the above-referenced matter. The depositions are scheduled for Tuesday, March 3, 2009 in our offices, commencing at 9:00 a.m. Enclosures cc: Fred Nichols (w/encls.) 732239.1 Rhoads & Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box 1146 Harrisburg, PA 17108-1146 • ph (717) 233-5731 • fx (717) 232-1459 • www.rhoads-sinon.com Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS &. SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-2011: : JURY TRIAL DEMANDED AMENDED NOTICE OF DEPOSITION TO: Oliver Smart c/o Matthew J. Eshelman, Esquire P. 0. Box 1080 Camp Hill, PA 17001-1080 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff will take the deposition of Oliver Smart, upon oral examination, for the purpose of discovery or for use at trial, before a Notary Public, or other person authorized to administer oaths at the law firm of Rhoads & Sinon LLP, One South Market Square, 12U' Floor, Harrisburg, Pennsylvania, 17101, on Tuesday, March 3, 2009, beginning at 9:00 a.m. and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues and subject matter involved in the above-captioned action, and that the above-named 7277971 person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. RHOADS & SINON LLP By: Todd J. S One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Computer Support, Inc. Dated: February 17, 2009 2 CERTIFICATE OF SERVICE I hereby certify that on this 17th day of February 2009, the foregoing "Amended Notice of Deposition" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-2011: JURY TRIAL DEMANDED Defendant. AMENDED NOTICE OF DEPOSITION TO: Aubrey Smart c/o Matthew J. Eshelman, Esquire P. 0. Box 1080 Camp Hill, PA 17001-1080 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff will take the deposition of Aubrey Smart, upon oral examination, for the purpose of discovery or for use at trial, before a Notary Public, or other person authorized to administer oaths at the law firm of Rhoads & Sinon LLP, One South Market Square, 12`" Floor, Harrisburg, Pennsylvania, 17101, on Tuesday, March 3, 2009, beginning at 11:00 a.m. and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues and subject matter involved in the above-captioned action, and that the above-named 732237.1 person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. RHOADS & SINON LLP By: J. <hi- Todd One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Computer Support, Inc. Dated: February 17, 2009 2 CERTIFICATE OF SERVICE I hereby certify that on this 17Ih day of February 2009, the foregoing "Amended Notice of Deposition" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff, V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-2011: JURY TRIAL DEMANDED AMENDED NOTICE OF DEPOSITION TO: Jesse Maldonado c/o Matthew J. Eshelman, Esquire P. 0. Box 1080 Camp Hill, PA 17001-1080 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff will take the deposition of Jesse Maldonado, upon oral examination, for the purpose of discovery or for use at trial, before a Notary Public, or other person authorized to administer oaths at the law firm of Rhoads & Sinon LLP, One South Market Square, 12`x' Floor, Harrisburg, Pennsylvania, 17101, on Tuesday, March 3, 2009, beginning at 2:00 p.m. and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues and subject matter involved in the above-captioned action, and that the above-named 732238.1 person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. RHOADS & SINON LLP By: Todd J. S 1 One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Computer Support, Inc. Dated: February 17, 2009 2 CERTIFICATE OF SERVICE I hereby certify that on this 17"' day of February 2009, the foregoing "Amended Notice of Deposition" was served by means of United States mail, first class, postage prepaid, upon the following: Matthew J. Eshelman, Esquire P. O. Box 1080 Camp Hill, PA 17001-1080 EXHIBIT J Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff V. SMART TRANSPORTATION SERVICES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2011: : JURY TRIAL DEMANDED PLAINTIFF COMPUTER SUPPORT, INC.'S MOTION TO COMPEL DISCOVERY NOW COMES Plaintiff Computer Support, Inc. ("CSI"), by and through its counsel Rhoads & Sinon LLP, and files the within Motion to Compel as follows: Background 1. CSI instituted this action against Defendant Smart Transportation Services, Inc. ("Smart") on or about April 11, 2007 by filing a Complain. 2. CSI is a provider of computer software for the trucking industry. 3. Smart is engaged in the trucking business. In furtherance of its business, Smart entered into an Agreement with CSI to purchase a license for use of CSI's computer software and for consulting and support services. 4. In accordance with the Agreement, CSI provided the license to Smart as well as consulting and support services. However, Smart has refused to pay for the license fee and for CSI's consulting and support services, totaling $37,117.42. Previous Rulings 5. On August 6, 2008, upon CSI's Motion for Sanctions, and after a hearing, the Honorable J. Wesley Oler, Jr. ordered Smart to pay sanctions for failing to respond to CSI's discovery requests despite this Court's Order of May 13, 2008 directing Smart to respond without objection to CSI's discovery requests. True and correct copies of this Court's August 6, 2008 Order and May 13, 2008 Order are attached hereto as Exhibits A and B, respectively. Discovery Issue 6. Pursuant to Rule 4007.1 of the Pennsylvania Rules of Civil Procedure, on or about January 8, 2009, CSI served Smart with Deposition Notices for Oliver Smart, Aubrey Smart, and Jesse Maldonado. The depositions were scheduled to be held at CSI's counsel's offices on January 22, 2009. True and correct copies of the Deposition Notices and cover letter enclosing same are attached hereto as Exhibit C. 7. Only a few days before the scheduled depositions, Smart's counsel called to inform CSI's counsel that the noticed deponents would not be attending their depositions, and that he would be providing a list of alternative available dates. CSI's counsel confirmed this arrangement via a letter dated February 3, 2009. A true and correct copy of this letter is attached hereto as Exhibit D. 8. Smart never provided CSI with a list of available dates. 9. Accordingly, on or about February 17, 2009, CSI served Smart with Amended Deposition Notices for Oliver Smart, Aubrey Smart, and Jesse Maldonado. The depositions were scheduled to be held at CSI's counsel's offices on March 3, 2009. True and correct copies of the Amended Deposition Notices and cover letter enclosing same are attached hereto as Exhibit E. -2- 10. Like before, only a few days before the scheduled depositions, Smart's counsel called to inform CSI's counsel that the noticed deponents would not be attending their depositions. 11. CSI now seeks an Order from this Court compelling the foregoing deponents' presence at a deposition, to be held at CSI's counsel's office, within thirty days of the issuance of such an Order. 12. Pursuant to Local Civil Rule 208.2(d), on April 2, 2009, counsel for CSI emailed counsel for Smart seeking concurrence in the within Motion to Compel Discovery. He does not concur in the filing of this Motion. WHEREFORE, CSI respectfully requests that this Court issue an Order directing Oliver Smart, Aubrey Smart, and Jesse Maldonado to appear and give deposition testimony at the offices of CSI's counsel within thirty days of the issuance of such an Order. Respectfully submitted, By: - Todd J. Shill, Rhoads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Dated: q/3 w9 -3- EXHIBIT K APFC10 OY COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION -LAW V. NO. 07-2011: SMART TRANSPORTATION SERVICES, INC., JURY TRIAL DEMANDED Defendant. LL ORDER OF COURT AND NOW, this IR day of ?j , 2009, upon consideration of Plaintiff Computer Support, Inc.'s Motion to Compel Discovery, a Rule is hereby issued upon the Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT: Todd J. Shill, Esq. Rhoads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-10808 Attorney for Defendant EXHIBIT L i Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff V. SMART TRANSPORTATION SERVICES, INC., Defendant. r- r'r?--- rr? -: "< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-2011: JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO MAKE RULE ABSOLUTE NOW COMES, Plaintiff, Computer Support, Inc. ("CSI"), by and through its counsel Rhoads & Sinon LLP, and files the within Motion To Make Rule Absolute, as follows: 1. On or about April 3, 2009, CSI filed a Motion to Compel Discovery seeking an Order from this Court compelling certain representatives of Defendant, Smart Transportation Services, Inc. ("Smart"), to be present for a deposition at CSI's counsel's offices within thirty days of the issuance of such an Order. 2. Prior to the filing of the Motion to Compel Discovery, Smart had twice cancelled previously-noticed depositions only days before they were scheduled to be held at the offices of CSI's counsel. 3. On or about April 10, 2009, this Court entered an Order issuing a Rule upon Smart to show cause why CSI's Motion to Compel Discovery should not be granted. A true and correct copy of that Order is attached hereto as Exhibit A. 4. As indicated on the attached Order, the Court served Plaintiff's counsel, Matthew Eshelman, Esq., with a copy of the Order on or about April 10, 2009. 747646.1 101 5. The Rule issued was returnable within twenty (20) days after service, which, as previously noted, was made on April 10, 2009. 6. Eighty-seven (87) days have now passed since service of said Rule. 7. To date, Smart has not responded to CSI's Motion in accordance with this Court's Order dated April 10, 2009. WHEREFORE, Plaintiff, Computer Support, Inc., respectfully requests that this Court make its April 10, 2009 Rule Absolute and grant CSI's Motion to Compel Discovery, as set forth in the proposed Order attached hereto as Exhibit B. RHOADS & SINON LLP By: Todd J. Shill One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Dated: July 10, 2009 Attorneys for Plaintiff Computer Support, Inc. 747646.1 - 2 - ,y EXHIBIT M JUL I d 2009 COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION -LAW V. NO. 07-2011: SMART TRANSPORTATION SERVICES, INC., : JURY TRIAL DEMANDED Defendant. RULE ABSOLUTE AND NOW, this day of , 2009, the Court's April 10, 2009 Rule is made absolute and Plaintiff's Motion to Co 1 is GRANTED. Defendant shall produce the following representatives for a deposition to be held at Plaintiffs counsel's offices within thirty days of the issuance of this Order without objection: Oliver Smart, Aubrey Smart, and Jesse Maldonado. If Defendant fails to do so, Defendant shall be sanctioned upon Plaintiff's further application to this Court. BY THE CO ?i Todd J. Shi11, Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-1080 Attorney for Defendant F LED- Oi ICE OF THE PPOT JO NIOTARY 2009 SEP -9 PM 12: 42 PENNGYLV ?'`,M COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW SMART TRANSPORTATION SERVICES, INC., Defendant NO. 07-2011 CIVIL TERM IN RE: PLAINTIFF COMPUTER SUPPORT, INC.' S MOTION FOR SANCTIONS ORDER OF COURT AND NOW, this 16'h day of September, 2009, upon consideration of Plaintiff Computer Support, Inc.'s Motion for Sanctions, a hearing is scheduled for Wednesday, October 21, 2009, at 10:45 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, /YUV I &Cc ? /Todd J. Shill Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff 1- Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17011-1080 Attorney for Defendant :rc ?o i es BLED-0 rr1nE 2009 SEA' 16 PM 3: 03 COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW SMART TRANSPORTATION SERVICES, INC., Defendant 07-2011 CIVIL TERM IN RE: MOTION FOR SANCTIONS ORDER OF COURT AND NOW, this 21st day of October, 2009, upon consideration of Plaintiff Computer Support, Inc.'s, Motion for Sanctions, and following a hearing at which neither the Defendant nor Defendant's counsel appeared, and at which evidence was presented by the Plaintiff in support of its motion, the Plaintiff's Motion for Sanctions is granted, and judgment is entered in favor of the Plaintiff, Computer Support, Inc., and against the Defendant, Smart Transportation Services, Inc., in the amount of $37,177.42, plus costs of suit and interest at the rate of 18 percent from August 8, 2006, to the present date, and plus attorneys fees in the amount of $10,421, with interest from today's date forward on the total amount of the judgment herein at the legal rate. Todd J. Shill, Esquire One South Market Square 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 For Plaintiff ',?Matthew J. Eshelman, Esquire P.O. Box 1080 Camp Hill, PA 17011 l U11. I /U`? By the Court, TAPY 209 0C T 21 Pil 2: ? ?a