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Home My WebLink About03-4071CLUGSTON AG & TURF, INC., t/a CUMBERLAND BOBCAT, 1422A Trindle Road Carlisle, PA 17013 Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA : :NO. 03 - ONYX INDUSTRIAL SERVICES, : INC., : 95 Leslie Road : NorthEast, MD 21901 : Defendant : CIVIL ACTION PRAECIPE FOR WRIT OF SUMMONS To: Prothonotary Issue a Writ of Summons in Civil Action on behalf of Clugston Ag & Turf, Inc. t/a Cumberland Bobcat, and against Onyx Industrial Services, Inc., and provide it to Plaintiff for service. Date: August ,2003 McNEE;~ALL:& N~,~CK LLC I.D. No. 16707 Barbara A. Darkes I.D. No. 77419 100 Pine SHeet P.O. Box 1166 Harrisburg, PA 17108 (717)232-8000 Attomeysfor Pl~ntif Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS CLUGSTON AG & TURF, INC., T/A CUMBERLAND BOBCAT 1422A TRINDLE ROAD CARLISLE, PA 17013 Plaintiff Vs. ONYX INDUSTRIAL SERVICES, INC. 95 LESLIE ROAD NORTHEAST, MD 21901 Defendant Court of Common Pleas No. 03-4071 CIVIL TERM In CivilAction-Law To ONYX INDUSTRIAL SERVICES, INC., You are hereby notified that CLUGSTON AG & TURF, INC., T/A CUMBERLAND BOBCAT, the Plaintiffhas / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) Date AUGUST 19,2003 CURTIS IL LONG Prothonotary Deputy Attorney: Name: LAWRENCE IL WIEDER, ESQUIRE Address: McNEES WALLACE & NURICK LLC 100 PINE ST., P.O.BOX 1166 HARRISBURG, PA 17108 Attorney for: Plaintiff Telephone: 717-232-8000 Supreme Court ID No. 16707 CLUGSTON AG & TURF, INC. t/a CUMBERLAND BOBCAT, Plaintiff ONYX INDUSTRIAL SERVICES, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-4071 CIVIL ACTION PLAINTIFF'S AFFIDAVIT OF SERVICE OF WRIT OF SUMMONS Clugston Ag & Turf, lnc., et. al., Plaintiff(s) VS. Onyx Industrial Services, Inc., et. al., Defendant(s) Service of Process by APS International, Ltd. 1-800-328-7171 APS International Plaza 7800 Glenroy Road Minneapolis, MN 55439-3122 McNEES, WALLACE & NURICK Ms. Charmaine O'Hara 100 Pine Street Harrisburg, PA 17108-1166 AFFIDAVIT OF SERVICE -- Corporate Service of Process on: --Onyx Industrial Services, Inc. Court Case No. 03-4071 State of: DELAWARE ) ss. County of.NEW CASTLE Name of Server: Date/Time of Service: ) ADAM GOLDEN , undersigned, being duly swom, deposes and says that at the time of service, s/he was over the age of twenty-one, was not a party to this action; that on the 25th day of AUGUST Place of Service: at 95 North Leslie Rd. Documents Served: the undersigned served the documents described as: Wirt of Summons ,20 03 ,at 1:21 o'clock P.M , in North East, MD 21901 Service of Process on: A true and correct copy of the aforesaid document(s) was served on: Onyx Industrial Services, Inc. Person Served, and Method of Service: Description of Person Receiving Documents: Signature of Server: By delivering them into the hands of an officer or managing agent whose name and title is: PAULINE BROUNE, AUTHORIZED TO ACCEPT SERVICE The person receiving documents is described as follows: Sex F ; Skin Color W ; Hair Color BLONDE ; Facial Hair Approx. Age 40 ; Approx. Height 5'5" ; Approx. Weight 130 lbs ~] To the best of my knowledge and belief, said person was not engaged in the US Military at the time of service. Undersigned declares under penalty of perjury and correct. 8/25/03 (Date) APS International, Ltd. APS File#: 06144041001 Subscribed and sworn to before me this CLUGSTON AG & TURF, INC. t/a : IN THE COURT OF COMMON PLEAS CUMBERLAND BOBCAT, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : v. : NO. 03-4071 CIVILTERM ONYX INDUSTRIAL SERVICES, : INC. : Defendant : CIVIL ACTION - LAW NOTICE TO DEFEND You have been sued in court. If you wish to deferred against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written a~ppearance 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 cio so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse Carlisle, PA 17013-3387 Telephone: (717) 240-6200 AVISO USTED HA SIDO DEMANDADO/A en corte. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de romar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo pot cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABODAGO IMMEDIATA-MENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Court Administrator Cumberland County Courthouse Carlisle, PA 17013-3387 Telephone: (717) 240-6200' Dated: October ~ ,2003 ID No. 16707 Barbara A. Darkes, Esquire Attorney I.D. No. 77419 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-.8000 Attorneys for Plaintiff Clugston AG & Turf, Inc. t/a Cumberland Bobcat CLUGSTON AG & TURF, INC. t/a CUMBERLAND BOBCAT, Plaintiff ONYX INDUSTRIAL SERVICES, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-4071 CIVIL TERM CIVIL ACTION - LAW COMPLAINT Clugston Ag & Turf, Inc. t/a Cumberland Bobcat ("Clugston") by and through its counsel, McNees Wallace & Nurick LLC, files its Complaint against Onyx Industrial Services, Inc. ("Onyx") and avers the following in support thereof: 1. Clugston is a Pennsylvania Corporation with a place of business at 1422A Trindle Road, Carlisle, PA 17013. 2. Onyx Industrial Services, Inc. ("Onyx") is a Delaware Corporation with a place of business at 95 Leslie Rd., Northeast, MD 219,01. 3. On or about March 28, 2003, Onyx leased a Bobcat skid loader, Model T190 with bucket, serial number 40382 (the "Equipment") from Clugston. A true and correct copy of the lease agreement (the "Agreement") is attached hereto as Exhibit 4. Pursuant to paragraph 4 of the Agreement, Onyx agreed to, "care for the Equipment properly"; "notify LESSOR immediately of accidents, disabilities, failures or like information concerning the Equipment"; "pay for all damage to the Equipment resulting from improper use or abuse of the Equipment upon receipt of invoices therefor (sic) from LESSOR for LESSOR'S costs and expense of repair". 5. Pursuant to paragraph 8 of the Agreement, Onyx agreed to: 8. LESSEE assumes all risk and liability for and agrees to indemnify, save and hold LESSOR harmless from all claims and liens, all loss, damage, claims, penalties, liability and expenses, including attorney's fees, howsoever arising or incurred because of the Equipment or the storage, use or operation thereof. LESSEE, at its own expense, shall carry adequate public liability insurance against I~odily injury, including death, and against property damage: shall keep all Equipment insured at its full insurable value against fire and theft and under extended coverage. 6. Onyx returned the Equipment to Clugston on April 23, 2003. 7. Upon return, Clugston discovered that the Equipment had sustained extensive damage. In fact, an estimate of damage prepared by Clugston on May 5, 2003, calculated damages in the amount of $5,000.22. A true and correct copy of the May 5, 2003, estimate of damages and photographs of the Equipment are attached hereto as Exhibit "B". 8. Clugston provided Onyx with a copy of the estimate and photographs of the Equipment and demanded payment for the dama~les to the Equipment. 9. Onyx never reported to Clugston that the Equipment was involved in an accident or had otherwise sustained damage. 10. It is believed, and therefore averred, that the damages to the Equipment were sustained as a result of the improper us;e and abuse of the Equipment while in Onyx's possession and control. 11. Though provided with the invoice, Onyx has refused to pay for the damages the Equipment sustained while in its possession. 12. Clugston has been unable to lease the Equipment since April 24, 2003, because of the extensive damage sustained to it while in the possession of Onyx. 13. Had Clugston been able to rent the Equiprnent, it would have received a monthly rental fee of $2,400.00. 14. ~ength. 15. BREACH OF CONRACT Averments 1 through 13 are incorporated herein as though set forth at Onyx has breached the terms of the Agreement by: a. Failing to properly care for the Equilpment while it was in its possession and control. b. Failing to notify Clugston that the E,quipment had been involved in an accident or had otherwise sustained damages. c. Failing to pay for the damages sustained by the Equipment. 16. Onyx agreed to assume the risk and indemnify Clugston as to any damages, including attorney fees and other consequential damages, sustained as a result of its lease of the Equipment. 17. Though requested numerous times, Onyx has refused to pay the damages sustained by Clugston and, therefore, has breached the terms of the Agreement. 18. As a direct and proximate result of Onyx's breach of the Agreement, Clugston has incurred damages, including the costs to repair the Equipment, lost rental fees since April 24, 2003, and attorney fees. WHEREFORE, Clugston Ag & Turf, Inc. t/a Cumberland Bobcat seeks judgment in its favor and against Onyx Industrial Servicos in the amount of $5,000.22 for the cost of repairs to the Equipment; $12,000.00 for the lost rental value of the Equipment, which amount continues to accrue; and attorney fees, in accordance with paragraph 8 of the Agreement. Dated: October_7~, 2003 Respectfully submitted, McNEE AL. E & RICK LLC By/(.awren~l~ R. Wiee~r Esquire ID No. 167'07 Barbara A. Darkes, Esquire ID No. 77,~19 100 Pine Street - 7th Floor P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff , 74812 LESSOR LESSEE SHIPPED TO CUSTOMER'S ORDER NO. I DATE pF OR~ER I EQUIPMENT UNDE~ R.E, No. Attachments Ser. No. /~'43 3J~ ~. R.E. No. SPECIAL EOUIPMENT [] INSURANCE CERTIFICATE NO.; Agent Na~ne Phone The above described Equipment has been received in good repair end operating condition and is accepted by LESSEE, subject to the terms of a written Rental Agreement between LESSEE and LESSOR or, if there is no such written Rental Agreement, then, subject to the terms and conditions on the reverse side hereof, which are hereby ede a pa;t hereof by reference as if fully set forth RECEIVED BY F9601 BP 1OM 6-00 TRUCKING DATA NO./.~,,!N I T.O. NO. O[JT HOURMETER READING IN DATE OF SHIPMENT I DATE RETURNED CHARGES: Trucking: Delivery $ Pick Up ~ $ * Rental: ONE SHIFT DAY BASIS $ ~ WEEK $ ,TJ~ MONTH OVERTIME-- $ Extra Shifts Per TAX $ TOTAL $ RENTAL AGREEMENT NO. Printed in U.S.A. CUSTOMER COPY 25355-02 80571 LESSOR LESSEE TRUCKING DATA SHIPPED TO Attn: CUSTOMER'S ORDER NO. DATE OF ORDER EQUIPMENT UNDER RENTAL l T.O. NO. IN [ T.O. NO. O(JT OUT · DATE OF SHIPMENT HOURMETER READING DATE RETURNED CHARGES: IN Model R.E. No. Attachments Trucking: Sar. No. R.E. No. SPECIAL EQUIPMENT [] INSURANCE CERTIFICATE NO.; Agent Name Phone The above described Equipment has been received in good repair and operating condition and is accepted by LESSEE, subject to the terms of a written Reflt~l Agreement between LESSEE and LESSOR or. if there is no such written Rental Agreement, then. subject to the terms and conditions on the reverse side hereof, which are hereby made a part hereof by reference as if fully set forth herein. RECEIVED BY Delivery $ Pick Up $ Rental: ONE SHIFT DAY BASIS $ WEEK $ MONTH $ OVERTIME-- $ Extra Shifts Per TAX $ TOTAL $ RENTAL AGREEMENT NO. CUSTOMER COPY Printed in U.S.A. CLUGSTON AG & TURF, INC. 3213 Black Gap Road Chambersburg, PA 17201 (717) 263-4103 Sold To HOR'!" .~I E'(.E:; T '~r~ 'Pibi' Numl~er Doc. ?.4 1 0 1 I Shipped I BIO ~ Pa~ Numar O~er~ Invoice JOHN DEERE Ii'lC: Page ShlpTo E::..:Pires~ OZl.,.ll.-INO:.:J ]. Cash Chg. Other I"!)~ ::? ] '[' ) I Acct. No. · $, :'77?"" Phone Invoice Date Time Invoice No, ,~I. 0....2'.:E:'7--7::).00 C)DHF~YO:3 ~:}:::-.:z "-"-'TE: ..................................De~pt~nt ............. B,n 1 ........................................ L~Pd~ ~t , ~en 4., 707':?'7 ~ :- ..... Shipped Vi~ ~ - ' 'R' . QUIJTE / E.: T It'I(~TE ALL CLAIMS & RETURNED GOODS MUST BE ACCOMPANIED BY THIS BILL. 15% RESTOCK FEE ON SPECIAL ORDER ITEMS. NO RETURN ON ELECTRICAL ITEMS. Received By X I"t i ~,: -" Sales Tax Please Pay This Total · 1:2:3~:. OO ~C)O0.22. VERIFICATION I, Dan Place, General Manager for Clugston Ag & Turf, Inc., Fa Cumberland Bobcat, verify that the statements made in the foregoing document are true and correct to the best of my knowledge, infor'mation and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsi~thorities. Dan Place Dated: October (~ ,2003 CERTIFICATE OF SERVICE! I certify that on this date, I have served a true and correct copy of the foregoing document upon the Defendant, by depositing a copy in the United States Mail, first class, postage prepaid, addressed to Defendant as follows: Date: October /~,2003 Onyx Industrial Services, Inc. 95 Leslie Road Northeast, MD 21901 / "' Ba'd:)ara A. Darl Counsel for the Plaintiff CLUGSTON AG & ~URF, INC. t/a : IN THE COURT OF COMMON PLEAS CUMBERLAND BQBCAT, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff ONYX INDUSTRI/~L SERVICES, : INC. / Defendant : NO. 03-4071 CIVIL TERM CIVIL ACTION - LAW TO THE PROTH* Please me PRAECIPE TO DISCONTINUE ~NOTARY: k the above-captioned matter settled, discontinued and ended. Respectfully McNE,~ ;ubmitted, ~0~WTeder~squire Barbara A. Darkes, Esquire ID No. 77419 100 Pine Street - 7th Floor P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff Dated: October ~0, 2003 CERTIFICATE OF SERVICE certify that on this date, I have served a true and correct copy of the foregoing document upon the Defendant, by depositing a copy in the United States Mail, first ilass, postage prepaid, addressed to Defendant as follows: Onyx Industrial Services, Inc. 95 Leslie Road Northeast, MD 21901 I cE~'o~bnasreal f~ r~t ah er kpe iSa i n t iff Date: October ~ 0, 2003