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HomeMy WebLinkAbout07-3512COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS JUDICIAL DISTRICT NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. OZ - -7S1. - Uluz NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. NAM! OF APPELLANT AD S OF APPELLANT db'R CITY 1 ed" STATE ZIP CODE K. 1-7,411 DATE OF JUDGMENT ) IN THE CASE OF (Pl"fi l!) A ! W 7 (DIf-d"W 1 V ? A V_ S. CLAIM N SIGNATUR OF APPELLAN TORNEY OR AGENT C-V- Do?ooBa- 0-7 LT 19 1/ / 10 This block will be signed ONLY when this notation is req fired der Pa. R.C.P.J.P. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. Signature of Prothonotary or Deputy l*-appellant was Claimant (see Pa. R.C.P.J.P. No. 1001(6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enter rule upon appellee(s), to file a complaint in this appeal t `a a of appellee(s) (Common Pleas No.(? tr ' ) within twenty (20) days after service of r r suffer entry f non pros. em-wl 1 i ure of appellant or his attorney or agent RULE: To-?1 app III e(s) Name of appellees) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within,this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) The date of service of this rule if serviiawas by mail is.the date of mailing. Date: Ls- is-W67 ture of Prothonotar or uty ` n AOPC312-84 COURT FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN FIVE (5) DAYS AFTER filing the notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby swear or affirm that I served a copy of the Notice of Appeal, Common Pleas No. _, upon the District Justice designated tht lem can (date of service) , 19 by personal service by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, on 19_ _r by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellees) to whom the Rule was addressed on 19 by personal service by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME w., THIS DAY O F 19 Signature of affiaot Signature of official before whom affidavit was made Title of official My commission expires 19 z, r*4 is *tk N O t'Tt iA 2> -G cri 0512 1. COMMONWEALTH OF PENNSYLVANIA Mag. Dist, No.: 09-3-04 MDJ Name Hon. THOMAS A. PLACXY Address: 104 g SPORTIXG BILL RD MBCRAITICSBURQ, PA Telwhone; (717) 761-8230 17050 ZEPLIN I S SECURITY GROUP 2026 MARKNT STREET PO BOX 144 CAMP HILL, PA 17011 NOTICE OF IV?GCASE /TRANSCRIPT PLAINTIFF; NAME andADDRUS 7 [-QUALITY BUILDERS WARRANTY CORP. 325 H 2ND ST WORMLETSBURG, PA 17043 i- J VS. DEFENDANT; NAMS and ADDRESS rZSPLIg'S SECURITY GROUP 2026 MARKET STREET PO SOX 144 tqA HILL, PA 17011 J Docket No.; CV-0000082-07 Date Filed' 11/17/06 Ala THIS IS TO NOTIFY YOU THAT, 5/?1 DEFAULT JUD?tT _PLTF (Dat®-.af.Judgment) Jud .. --07 9ment:-.. _ ® Judgment was entered for:. (Name) QUALITY BUILDERS WARRANTY CORP ® Judgment was entered against: (Name) ZEPLIM IS SECURITY CROUP 245.0 in the amount of $ l' Defendants are jointly and severally liable. Damages will be assessed on Date & Tim F] This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease S Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Total $_ 1,170.00 $ 79--00 $ 60 $ 1,245.001 Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. _ UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL. SETTLES. OR OTHERWISE COMPLIES WITH THE JUDGMENT. Date I certify that this is a true Date My commission expires first Monday of January, 2010 rial District Judge ings containing the judgment. , Magisterial District Judge SEAL, AnPr. 315-06 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This prooi' of service MUS7 BE FILED WITHIN FIVE (5) DAYS AFTER filing the notice of afy,eal. Check aoolicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF- ss AFFIDAVIT: I hereby swear or affirm that I served a copy of the Notice of Appeal, Common Pleas. No.402- -25/2,- upon the District Justice designated therein on (date ofservice)iwby persona service by (certified) (registered) mail sender's receipt attached hereto, and upon the appellee, (name) - on 111113 _, yJ.??.? by personal service by (certified) (registered) mail, sender a receipt attached hereto. and further that I served the Rule to File a Co plaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on G 1?`_ ? by personal service j by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SU CRIBED BEFORE ME D. THIS f!-- DAY OF- kolge Signatu o o a b oh ? vit was made Title of ffieial My commission expires on 19 OMMONWEALTH OF PENNSYLVANIA Notarial Seal Debra K. Spinner, Notary Public Gty Of Hanisburg, Dauphin County My Commission E)ires Sept 3, 2007 U re f ffiri l of re who affida Signature of affiant Member, Pennsylvania Association Of Notaries COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS JUDICIAL DISTRICT NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. 07 - 2EI-. - elc-)l NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Commorf Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. MAG. DIET. NO. OR NAME OF D? G? uu 9- - D AD R S OF APPELLANT CITY STATE ZIP CODE DATE OF JUDGMENT all( IN THE CASE OF ?Pl?in 1l{I S. .in 11 CLAIM N SIGNATUR OF APPELLAIJ. A TORNEY OR AGENT C- V, - "moor .5a- ©-7 LT 19 1 This block will be signed ONLY when this notation is req ired der Pa. R.C.P.J.P. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. Signature of Prothonotary or Deputy -ff--appellant was Claimant (see Pa. R.C.P.J.P. No. 1001(6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enter rule upon . /) = , appellee(s), to file a complaint in this appeal ,r? ?y Nof appellees) (Common Pleas No. 0 / - Oh?T-) within twenty (20) days after service of r r suffer entry wie+ f non pros. ? ure of appellant or his attorney or agent RULE: To I-444 _- pp?llee(s) Name of appellees) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after thezdate of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of mailing. Date:..-) ' S' T ,Loc' ature of Prothonotar or uty ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: A. Signature X ? Agent ? Addressee B. Received by (Printed Name) C. Date of Delivery D. Is delivery address different from Item 1? ? Yes If YES, enter delivery address below: ? No 3. ice Type Certified Mail ? Express Mail Registered ? Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. ResUlcted Delivery? Xxba Fee) ? Yes 2. Article ansfer from m service label) 7005 1160 0001 3321 5748 (Transfer PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 Postal CERTIFIED MAIL,,., ¦ (Domestic Mail Only,, No Insurance Coverage Provided) t.rt For delivery information visit our website at www.usps.com ru OFFICIAL US M M Postage $ . /? C3 Certified Fee 5 O C3 Retum Receipt Fee Postrnerk E3 (Endorsement Required) 01, / r Here E3 Restricted Delivery Fee _a (Endorsement Required) r9 Total Postage & Fees Ln r3 r3 -T 1 r3 - Y ivo.:' C CAI =- - 0 r PO Box No. L? ?iZ -------------- - - -- PS Form 31500. June 2002 See Reverse for Instructions ¦ Complete items 1, 2, and 3. Also complete Item 4 if Restricted Delivery Is desired. ¦ Print your name and address on the reverse $o that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front If space permits. 1. Article Addressed to: I A. Signature X ? Agent ? Addressee B. Received by (Printed Name) C. Date of Delivery D. Is delivery address different from Item 1? ? Yes If YES, enter delivery address below: ? No 3. rv(ce Type I 13 Certified Mail 0 Express Mail Istered D Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Deliver)? Pft Fee) ? Yes 2. Article Number 7005 1160 0001 3321 5731 (rmnsfw bom smite mw PS Form 3811, February 2004 Domestic Return Receipt 102596-02-M-1540 Postal r? CERTIFIED M AIL. RECE IPT M I` - (Domestic Only; Provided) Lrl OFFI CIAL USE m Postage $ . ?? r-9 Certified Fee j ° r3 Postmark O 0 Return Receipt Fee d Here (Endorsement Required) C3 Res Mcted Delivery Fee ..0 (Endorsement Required) :a r9 Total Postage & Fees $ JZ Ln :. rti or Aar 12GCsi.. or PO Box No. cny, ?mrp, zrP+a GCJ ?w o 3 PS Forni :3800. June 2002 0-0 QUALITY BUILDERS WARRANTY IN THE COURT OF COMMON PLEAS CORPORATION CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff DOCKET NO.: 07-3512 V. CIVIL TERM ZEPLIN' S SECURITY GROUP, INC. Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHER YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford St. Carlisle, PA 17013 717-249-3166 QUALITY BUILDERS WARRANTY CORPORATION IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. ZEPLIN' S SECURITY GROUP INC. Defendant DOCKET NO.: 07-3512 CIVIL TERM COMPLAINT AND NOW, this 29th day of June of 2007 comes the Plaintiff Quality Builders Warranty Corporation (QBW) and files the within Complaint against the above named Defendant and avers in support hereof the following: 1. Plaintiff, Quality Builders Warranty Corporation (QBW) is a Pennsylvania corporation with its principal place of business situate at 325 North Second Street, Wormleysburg, Pennsylvania 17043. 2. Defendant, Zeplin's Security Group, Inc. (Zeplin) is a Pennsylvania corporation with its principal place of business situate at 2026 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011 3. On March 7, 1997 Plaintiff executed a contract with Zeplin in which Zeplin agreed to perform alarm system monitoring services at Plaintiffs business. A copy of the contract is attached hereto incorporated herein and marked as Exhibit A. 4. Plaintiff was to be charged $19.75 per month for a monitoring fee. 5. Plaintiff was to be charged $15.00 per month for opening and closing reports. 6. On October 5, 2006, Plaintiff discovered that Zeplin had been overcharging Plaintiff for a number of years for monitoring services. 7. On June 1, 2001, Defendant increased the charge for the open and close reports from $15.00 per month to $20.00 per month and billed Plaintiff on a monthly basis for the fee for the open and close reports. 8. Prior to the change in the monthly charge Defendant had billed Plaintiff annually for the open and close reports, charging Plaintiff the sum of $180.00, annually, which was paid, by Plaintiff in June of each and every year. 9. Invoices for $180.00 representing the amount charged annually for the open and close reports continued to be sent by Defendant and were paid by Plaintiff for the years 2001, 2002, 2003, 2004 and 2005. 10. In addition to monthly charges for the open and close reports Defendant invoiced Plaintiff an annual fee based on the original $15.00 charge for open and close reports for five years resulting in an over payment by Plaintiff to Defendant of $900.00. 11. The $180.00 annual charge was not billed in 2006. 12. The increase of fees was contrary to the provisions of paragraph 7 of the parties' contract marked as Exhibit A, which indicates that fees will not be increased by more than 10 % or the annual percentage increase in the Consumer Price Index. 13. Defendant did not utilize the Consumer Price Index computation in increasing the fees for the open and close reports charged to Plaintiff. 14. In October 2003, Defendant further increased the charge for the open and close reports to $30.00 per month. 15. Said increase was contrary to the provisions of paragraph 7 of the parties' contract marked as Exhibit A. 16. In January 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. 17. In February 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. 18. In March 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. 19. In April 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. 20. In May 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. 21. In June 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. 22. In July 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. 23. In August 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. 24. As a result of the foregoing Defendant double billed and/or overcharged Plaintiff as follows: • Five years open and close reports at $180.00 per year $ 900.00 • Nine months of open and close reports not received 270.00 • Unauthorized increase in fees charged for open and close reports for the period June 2001 to September 1, 2003 (overpayment of $5.00 per month X 28 months) 140.00 • Unauthorized increase in fees charged for open and close reports for the period October 2003 to March 2007 (overpayment of $15.00 per month X 42 months.) 630.00 $1940.00 26. Based on the above Defendant is liable to Plaintiff for the sum of $1,940.00 representing double billings, overpayments based on unauthorized increases in fees and payment for reports never received. WHEREFORE, Plaintiff, Quality Builders Warranty Corporation, demands judgement against Defendant, Zeplin's Security Group, Inc. in the sum of $1,940.00 said sum not exceeding $35,000.00, plus cost and such other relief as the Court deems appropriate. Respectfully Submitted, Jo . Gill, Esquire Quality Builders Warranty Corporation 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation Myers Security Services 763 • 7791 Smith Security Systems & Service 545 •5100 G? ?J TJ? f 99M SY ?fl rC1? VTI `^V J M* FEBRUARY 27, 1997 1 1997 QUALITY BUILDERS, WARRANTY P.O. BOX 27 1 CAMP HILL, PA ATTN MR JIM OLSHEFSKZ SUBJECT: 325 NORTH 2ND STREET WORMLEYSBURG, `PA D eAZA, J.i. rn Pe.-c YO U.% n.e que.6t , ;to . chaxige, tlze_ a q"pme t -ijt bu i tiling to y our" , tke&e, W-. be u one- time ahxmge 0, $75.00 cuzd z monthly momi toss img 4ee o4 $19.15. ' you a ,Le, Zn ten¢. 6t ed 4-n. o p en.i. mg a.nd c.2o-Umq .4ep one , #.duLti W" r.o.at $15.00 pen month. 14 I can be oQ 6u t e& b,etp, plea ge tet me know. 3"t, Pe-p"- ona t Rega, d.b, -wed ept-tn, PrLeA , g 2ep£;n Secui y Group .NRo 2026 Market Street - Camp Hill, Pennsylvania 17011 FIRE ALARM (717) 761-3112 FAX (717) 7616996 ?. /a /T "i ALARM SYSISM AGREEMEN This Agreement is dated . ul l ::I 1j j7 between ZEPLIN SECURITY.GROUPi INC. (the 'Company") and you (the "Customer"). This Agreement covers the system listed on Schedule A or any, system the Company takes over from another company (the "System") and any, services requested below for the following location (the "Premises"). The Company has written-this Agreement in simple, easy-to-read language because it wants the Customer to understand it. Please feel free. to ask any questions. INTENDING TO BE LEGALLY BOUND, WE BOTH AGREE AS FOLLOWS: t' c`. , S C 5 T?,' i ; • L ' r : Fc 2 . (' CUSTOMER'S NAME: (?c,nr,p LitRS 1,149tFlilI PREMISES: T!)` +A A,t ,2`') f ( ADDRESS: c anon 0 11 ILL IAA Gv a r?: r u ? __ 0 ttr al', tea e. 71'M OtAAf1 5C I TELEPHONE: 1 7i 1 ? ? Z 2Z_ TYPE OF ACCOUNT: Consumer Use ] Commercial or Business Use ESTIMATED INSTALLATION DATE: CHARGES AND FEES: TYPE OF MONITORING: Telephone - Cellular _ Radio _ Other: Purchase Price (sale only) S Lease Fee 4i_______/month Due at signing S Monitoring Fee S Q, 7S /month Due when the System is substantially Other $ (month installed $ Repair Fee $ /month Installation Charge `(sale or lease) ST (beginning after the Limited Warranty ends) Due at. signing S Total S /montt Due when the System is substantially All fees are due in advance as follows: . installed $ ?„ . A A - monthly _ quarterly annually Take Over Charge (due at signing) S Option Price--.(for purchase of System Lease (1st Payment) S at end of the initial loose Term) S THE FOLLOWING SPECIFIC :TERMS'(A-F) APPLY ONLY IF A CHARGE FOR THEM ISiSHOWN ABAVE AND"THEY AREAEGUESTED BELOW. . ?A. 'Jpstpllp$pII. The'Companyiagrees to install the System and The-Customer agrees_ytolpay„tf,e Company the monitoring fees.; After the Customer agrees to :pay the installation charge. The Company the imtiaL tern,, the monttoringservices will •automaticallyrrenew for assumes no responsibility for any'delay'in`installation. The Customer successiyesimilarterms: must pay all utility charges. Once the Company receives a signal,-the Company: will try tc The Customer must notify ,the Company- in writing of any problems notify, over the. regular-telephone lines;, the agoncy(s). andlor• petson(s; ' within 30.days'after :the instaRation. The Customer: must,pay for.,any identified' on the : ;Customer`s-Anformation sheet., However, :the additions or changes to the System beyond those, shown on Company wilt not> notify anyone- if it reasonably believes the: Sole; A. notification is not required, B. Take Over: The Company agrees to take over the operation of The Customer agrees to, give the, Company a completes the Customer's existing System and the Customer agrees to pay the - information sheet and to update it .as necessary. The Company' !e charge for taking it over. The Customer represents that it owns the entitled to rely solely on the =.Customer-'s information sheet The System. After the take over, the Corflpany will alwatys own the, device] transmittin whlch'diihtams°fie?iEofiti Ay 's fpfiitai data "" Company is not responsible -for trying wcontactanyone else.,, . , p Y g : . ? If the Company.cannot connect the System to the telephone C. Sle. The Company agrees to sell -the System and the dines, then the Customer must contact thalaleplionscompany,:,whict Customer agrees to pay for it, The Company: will own the System until will install and bill the Customer directly; for, any telephone lines o the Customer does so. Afterthat,;the:-Customer wilFown the System equipment. except for the transmitting device, which contains . the Company's proprietary data and .which the Company will always own. The Customer understands that no form of, monitoring. is error ? free. The Customer also understands that the Company is no D. Lease... The Company agrees to lease the System to the responsible for any. interruption. of service due to any cause beyonc Customer for an initial term of Years from. the date of this the Company's control, such as faulty telephone. lines or any da'fnagc Agreement and the Customer agrees to pay the Company the lease or destruction to the Company's equipment or. facilities.., .:Thl fees. After the initial "term, the lease will automatically renew for Company-is not required to supply"monitoringservice to the Customs successive similar terms. The ' System will : always remain the while such interruption continues:. If . the :Customer requests Company's property. however, the Company will give the Customerapro-rata refund if thi As soon as the Company reasonably can, it agrees to repair the interruption lasts more than-24 hours, and is due to any damage o System due to ordinary wear and tear. If there is any problem with the destruction to the Company's equipment or facilities. System " which is not due to ordinary . wear and tear, the Customer 0 agrees to pay the Company to repair itat the Company's then-current • F. Reair The Company agrees to provide repair service ti charges. the.System for an initial term of years after the end of thi At the end of the tease, the Customer will return the System to the Company's•,Cimited Warranty and the Customer agrees to pay thi Company the repair fees. After the initial term, the repair service: Company in good condition, except for ordinary wear and tear. if the will automatically renew for successive similar terms. The Customs Customer fails to do so, the Company can peacefully enter the Premises agrees not to allow anyone besides, the Company's employees o and remove the System, but the Company has no obligation to do so. agents to repair the System. At the end of the initial lease term, the Customer may purchase the System by paying,the Option Price. For more information, refer to the The Company will provide all labor, material and parts necessar attac d,Lease Information Form. to service the System due to defects in the System and ordinary was and tear. -The Company will do so as soon as it reasonably can. Th, E_ . Aflgnli4dng. The Com ny agrees fo.rrtion)torsignals from:"the ', m a W i,CoTPany's ohWation..to_ppvide.this ervica does rapt cover batterie ' ` System for an initial term of ears fro the sl te of e Agreement. in wireless devices. r THE CUSTOMER ACKNOWLEDGES-.THAT-tT_HAS RECEIVED, A COPY OF THJS-.AGREEMENT AND ALL, ITS ATTACHMENTS. THE CUSTOMER; ACKNOWLEDGES THAT ITTsHAS:REAMAND UNDERSTOOD' THIS AGREEMENT;:ESPECIALLY THOSE;SECTIONS,ON THE REVERSE SIDE RELATING TO ITS PROTECTION OF THE COMPANY AND THE COMPANY-&um TED:LWBILITY AND WARRANTY. (CONSUMER TRANSACTIONS ONLY) YOU MAY CANCEL THIS TRAINS. CTION •:AT ANY` TIME' PRIOR TO MIDNIGHT OF THE THIRD'-BUSINESS. DAY AFTER THE` DATE OF THIS TRANSACTIO .. PLEASE SEE=THE'ATIACHED<NOT-ICE OF GANCELLAITION FORM FOR AN EXPLANATION OF THIS RIGHT. I -- - - - - . , CUSTOMER: a .. r ?. ZEPLII `SEtJklTy`GTii10F;lNC. ``, By:' Sales arson By: Authorized Representative F tC Y) r' / GENERAL TEM. 1, I lMgA ON OF THE COMPA NY'S LIABILITY. IF THI= COMPANY IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO ITS NEGLIGENCE OR THE FAILURE TO PERFORM ITS OBLIGATIONS IN THIS AGREEMENT, INCLUDING INSTALLING, MONITORING, REPAIRING OR TAKING OVER THE SYSTEM, IN ANY RESPECT AT ALL. THE COMPANY'S MAXIMUM LIABILITY WILL BE 8750.00. THE COMPANY WILL ASSUME A GREATER LIABILITY, BUT ONLY FOR AN ADDITIONAL CHARGE TO BE AGREED UPON BY THE CUSTOMER AND THE COMPANY, IF THE COMPANY DOES SO, A RIDER WILL BE ATTACHED TO THIS AGREEMENT. THE COMPANY EXPRESSLY DENIES ALL LIABILITY FOR ANY OTHER LOSS OR DAMAGE WHICH MAY OCCUR PRIOR TO, AT OR AFTER SIGNING THIS AGREEMENT. THIS INCLUDES LIABILITY BASED ON CONTRACT, TORT, NEGLIGENCE, WARRANTY (INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND ANY OTHER THEORY OF LIABILITY, THIS EXCLUSION SPECIFICALLY COVERS LIABILfTY FOR: LOST PROFITS; LOST OR DAMAGED PROPERTY; LOSS OF USE OF PROPERTY OR THE PREMISES; GOVERNMENTAL FINES AND CHARGES; AND THE CLAIMS OF THIRD PARTIES. ALSO COVERED BY THIS EXCLUSION ARE THE FOLLOWING TYPES OF DAMAGES: DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (DAMAGES THAT RESULT FROM AN ACT, BUT DO NOT DIRECTLY RELATE TO THE ACT) AND PUNITIVE (DAMAGES USED TO MAKE AN EXAMPLE OF SOMEONE). 2. Insuranic The Customer understands that THE COMPANY IS NOT AN INSURER. The Customer is responsible for obtaining all insurance the Customer thinks is necessary, including coverage for personal injury and property damage, The payments the Customer makes under :this Agreement are not related to the value of the Premises or the Customer's possessions, but rather are based on the cost of the System and the Company's services. The Customer releases the Company from any liability for any event or condition covered by the Customer's insurance. The Customer understands that the System is designed to reduce, but not eliminate, certain risks. The Company does not guaranty that the System will prevent personal injury, unauthorized entrances or fire and smoke damage to the Remises. The Company assumes no liability for those risks. 3. limited Werrarttv.. (a) For 12 months from the date of this Agreement; the Company warrants that if any part of the System does not work because of a defect or because,of ordinary wear and tear, the Company will repair or replace that part at no charge to the Customer. The Company :_-may use reconditioned parts in making repairs, but the Company warrants the replacement parts only for the of the warranty period. This limited warranty does not cover batteries in wireless devices, nor does it apply if the System has been damaged by acts beyond the Company's control. Such acts include accidents, power "surges, misuse, lack of proper maintenance, unauthorized changes or acts of God (such as fires, earthquakes, tornados, ate.). The Customer must notify the Company of any -problem. the Customer claims the Company's limited warranty covers within the warranty period. The Company will repair the problem as soon as it reasonably can after it receives the Customer's notice. (b) This limited warranty is the only warranty the Company makes, is made only it the Company installed the System, and takes the' place of all other warranties whether express or implied. NO EXPRESS OR IMPLIED WARRANRES EXTEND BEYOND THE FACE OF THIS AGREEMENT. THE COMPANY MAKES NO-IMPUED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The Company does not promise that the System or the services cannot be compromised or that they will always provide the intended signaling, monitoring or other service. If a court decides the Company bas given the Customer any implied warranty, it will extend only for the length of the limited warranty period. Some states do not allow limitations on how long an implied warranty lasts or the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to the Customer. This limited warranty gives the -Customer specific legal fights. The Customer may also have other legal rights that vary from state to state. 4. Customer's Protection of Comoarv. This Agreement is intended only for the Customer's benefit. Therefore, the Customer agrees to protectfindemnify, defend and release ,the Company and the Company's related parties from liability against all third. party claims or losses (including reasonable attorneys' fees) brought against the Company which relate to the Sysu_n or the services the Company provides. The Company's related parties include the Company's employees, agents and subcontractors. This protectionfindamnity, covers claims brought against the Company by the Customer's insurance company.: It also includes claims arising under contract, warranty, negligence, or any other theory of liability. The Customer's duty to protect/indemnify the. Company, however; does not apply to claims based on injuries to third parties or to thTtr property that occurred while the Company's employees were on the Premises and which were caused solely and directly by those employees. In case of any third party claim or loss covered by the Customer's insurance, the Customer agrees not to look to the Company or the Company's related parties for reimbursement. The Customer waives any rights that the Customer's insurance carrier or others claiming through the Customer may have against the Company or the Company's related parties. 5. The Customer's Aq. The Customer has the authority to sign this Agreement and in doing so will not violate any other agreement. The Customer is not aware of any hazardous conditions on the Remises. ` The Customer agrees to Prevent false alarms and asSVme rasponsibili',y ic" them. if the Company notifies the Customer of a malfunction, the Customer will disconnect the System until the Company can repair it. The Customer will not tamper or interfere with the System, nor permit others to do so. The Customer agrees that the Company can record and use all communications with anyone at the Premises in the normal course of the Company's business. The Customer will test the System at least once a month, as well as when changes are made to its telephone system or the Premises. The Customer will immediately notify the Company of any problems with the 'System. The Customer agrees that the Company can make program changes to the Company's proprietary data located in the transmitting device. The Customer will pay the Company its then-current-charges for doing any work not covered by this Agreement, including paying the Company's minimum service charge if the Company cannot enter the Premises at the scheduled time. The Customer's obligations continue even if the Customer sells or leaves the Premises, S. The Customer's Defeuk. If the Customer fails to perform its obligations, the Company will give the Customer written notice of default. If the Customer does not fix the default within 30 days, the Company can and this Agreement. If the Company ends this Agreement, the Customer must pay the Company: (a) all amounts then due; lb) 80% of the amount due the Company for the remainder of this Agreement las an agreed-upon amount of damages and not as a penalty); and (c) the Comp"'s reasonable collection costs, including attorneys' fees. If this Agreement is ended, the Company does not have to provide any service, including monitoring, after that date. In addition, the Company can peacefully enter the Premises and remove its equipment. if the Company waives any default by the Customer, that does not mean the Company waives later defaults. Any waiver by the Company must be in writing. The Customer grants the Company- a security interest in any property the Company installs on the Premises in order to,secure,payment of the purchase price or performance under the lease. The Customer must return such property if it does not fully pay for it. If the Customer does not return such property, the Company will ask 'a court to force the Customer to do so. The Company has the rights of a secured party under the Uniform Commercial Code. 7. Svztwn Ch The Customer agrees to obtain all licenses and pay all taxes, fines and other assessments, including sales taxes.' The Company's fees are based upon, existing taxes and charges, and the Company can increase the Company's fees to reflect cliahijes in these taxes or charges. After the first year of thisAgrpement,, the„Crpmp ny can increase the Company es by an armuai amounts up to 10% or tha annual percentage increase in ilia Cbnsuriiet Nice Iniiex,' whichever is higher, in addition to any increases due to taxes or charges, If the Customer is more than 30 days late with payment, the Company can charge the Customer interest up to the highest rate allowed by law. In addition, the Customer agrees to pay the Company's reasonable collection costs, including attorneys'. fees, and a reasonable reconnect fee if the Company has disconnected the System. B. T1?0>I?s. The Customer cannot iraiisfer this -Agreement withoutthe Company's consent. However, the Company can trankfer,this Agreement br`subcontraof its obligations without the Customer's consent. If the Company does` to, anyone 'to 'whom the Company transfers or subcontracts its obligations will have all of the Company's rights. The Company is not responsible. however, for any work, including monitoring, which is done negligently by any third party. 9. Notices: Limitation on Lawsuits; Jurv Trial. Unless otherwise indicated, all notices must be in writing. The Customer pr the Company may end any portion of this Agreement by notifying; the other party at least 30 days, prior to the end of the then-current term. It is critical that the Customer give any termination notice in a timely manner. The Customer must bring any claim against the Company within f year after the claim arose. If the Customer does not, the Customer has no right to sue the Company and the Company has no liability to the Customer for that claim. It is critical that the Customer bring any claim in a timely manner. The provisions of this Agreement'whirh apply to any claim remain in effect even after this Agreement ends. THE COMPANY AND THE CUSTOMER BOTH GIVE UP THEIR RIGHT TO A JURY TRIAL, 10. This Agreement contains the entire understanding between the Customer and the Company and replaces any other documents or discussions the Company previously had with the Customer. This Agreement is not binding on the Company 'until the !Co mpany or its authorized agent signs it or begins installation or service. T.Ns.Agreement is governed by Pennsylvania law. If the Company does not approve this Agreement, the Company's only obligation is to refund any payments the -Customer has made, Any equipment or services the Company Provides to the Customer in the future are subject to the terms of this Agreement, as so amended. This Agreement cannot be changed except by a writing that both the Customer and the Company sign. - If any provision of this Agreement is found to be invalid, the remaining provisions are still effactivs. The word "including' means "including without limitation." Except for monitoring, the Company wilt only do work during the Company's normal business hours of 9:00 a.m, to 5:00 p.m. on weekdays, excluding holidays the Company observes. All schedules and attachments are a part of this Agreement. ZF,KA,6, f 14 VERIFICATION I, JOSEPH M. OLSHEFSKI, President of Quality Builders Warranty Corporation, hereby certify and state that the foregoing Plaintiff's Complaint is true and correct to the best of my knowledge, information and belief; and that I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Quality Date: ; - a q- o? 00 7 By: M. Olshefski, President CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a copy of the Plaintiffs Complaint was sent via U.S. Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, addressed as follows: P. Richard Wagner, Esquire Mancke, Wagner, Spreha & McQuillan 2233 North Front Street Harrisburg, PA 17110 ? ?? 7 ? ? arm Date Peggy Morrison, Secretary 77 M ?t 3 N ` r ; A r so QUALITY BUILDERS WARRANTY CORPORATION Plaintiff v ZEPLIN' S SECURITY GROUP, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL TERM DOCKET NO. 07-3512 To: Zeplin's Security Group, Inc. 2026 Market Street Camp Hill, PA 17011 And To: P. Richard Wagner, Esquire, Attorney for Defendant Mancke, Wagner, Spreha & McQuillan 2233 North Front Street Harrisburg, PA 17110 Date of Notice: July 31, 2007 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGEMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 Respectfully Submitted, Jo . Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a copy of the Notice of Default was sent via U.S. Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, addressed as follows: Zeplin's Security Group, Inc. 2026 Market Street Camp Hill, PA 17011 And P. Richard Wagner, Esquire, Attorney for Defendant Mancke, Wagner, Spreha & McQuillan 2233 North Front Street Harrisburg, PA 17110 ate Pegg son, Secretary o '"L7 f? 'Tl r - x. rn C QUALITY BUILDERS WARRANTY IN THE COURT OF COMMON PLEAS CORPORATION, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. NO: 2007-3512 CIVIL ACTION -LAW ZEPLIN'S SECURITY GROUP, Defendant. ANSWER AND NOW, comes the Defendant, Zeplin's Security Group, by and through its attorneys, Mancke, Wagner, Spreha & McQuillan, and files the following Answer: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Denied. It is denied that there any increase in fees contrary to the agreement. 13. Denied. It is denied that the Defendant did not utilize the Consumer Price Index computation. 14. Admitted. 15. Denied. It is denied that any increase was contraryto the contract. 16. Admitted. It is admitted that it was a billing for open and close reports which was paid, however, it is specifically denied that the failure of any open and close reports was justification for not paying the bill. 17. Admitted. It is admitted that it was a billing for open and close reports which was paid, however, it is specifically denied that the failure of any open and close reports was justification for not paying the bill. 18. Admitted. It is admitted that it was a billing for open and close reports which was paid, however, it is specifically denied that the failure of any open and close reports was justification for not paying the bill. 19. Admitted. It is admitted that it was a billing for open and close reports which was paid, however, it is specifically denied that the failure of any open and close reports was justification for not paying the bill. -2- 20. Admitted. It is admitted that it was a billing for open and close reports which was paid, however, it is specifically denied that the failure of any open and close reports was justification for not paying the bill. 21. Admitted. It is admitted that it was a billing for open and close reports which was paid, however, it is specifically denied that the failure of any open and close reports was justification for not paying the bill. 22. Admitted. It is admitted that it was a billing for open and close reports which was paid, however, it is specifically denied that the failure of any open and close reports was justification for not paying the bill. 23. Admitted. It is admitted that it was a billing for open and close reports which was paid, however, it is specifically denied that the failure of any open and close reports was justification for not paying the bill. 24. Admitted in part, denied in part. It is admitted that there was a $900.00 overpayment, but it is expressly denied that there was a $270.00 overpayment, a $140.00 unauthorized increase in fee overpayment, and $630.00 unauthorized increase in fee overpayments. -3- WHEREFORE, Defendant requests the Court to dismiss the Complaint, particularly as it relates to the balance of any charge over $900.00. Respectfully submitted, Mancke, Wygner, Spreha & McQuillan P. Ric. Esquire I.RR J 103 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 Attorneys for Defendant Date: Y Fizz -4- VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unworn falsification to authorities. DATE: $ D" CERTIFICATE OF SERVICE I, Debra K. Spinner, secretary in the law firm of Mancke, Wagner, Spreha & McQuillan, do hereby certify that I am this day serving a copy of the foregoing document to the following persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing the same in the United States Mail, Harrisburg, Pennsylvania, with first class postage, prepaid, and addressed as follows: John A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 Debra K. Spinner, Secretary Mancke, Wagner, Spreha & McQuillan 2233 North Front Street Harrisburg, PA 17110 P. Richard Wagner, Esquire Attorney for Defendant Date: 9 a' C`7 7E ni ? .tom QUALITY BUILDERS WARRANTY CORPORATION Plaintiff V. ZEPLIN'S SECURITY GROUP, INC. Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL TERM : NO: 07-3512 PRAECIPE TO WITHDRAW APPEARANCE Please withdraw my appearance on behalf of the Defendant, Fred W. Zeplin, in the above- captioned matters. Respectful y submitted, 7L?-oe Date icha agner, Esq. 3103 2233 North Front Street Harrisburg, PA 17110 PRAECIPE OF ENTRY OF APPEARANCE Please enter my appearance on behalf of the Defendant, Fred W. Zeplin, in the above-captioned matters. Respectfully submitted, S ? Dat a man, Irvin & McAu ey, LLC Fi #583 7 Grant Street 1624 Frick Building Pittsburgh, PA 15219 y/z - 5-44, - ?- y 76 7:4 QUALITY BUILDERS WARRANTY CORPORATION Plaintiff IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA DOCKET NO.: 07-3512 V. ZEPLIN'S SECURITY GROUP INC. CIVIL TERM Defendant PLAINTIFF. QUALITY BUILDERS WARRANTY COROPORATION'S MOTION FOR SUMMARY JUDGMENT AND NOW comes Plaintiff, Quality Builders Warranty Corporation, and files the within Motion for Summary Judgment. This Motion is based on the pleadings, and answers to interrogatories. Such pleadings and filings establish that there is no genuine issue as to any material fact and that Plaintiff, Quality Builders Warranty Corporation is entitled to judgment in its favor as a matter of law. BACKGROUND Plaintiff, Quality Builders Warranty Corporation, (QBW), executed a contract with Defendant, Zeplin's Security Group, Inc., (Zeplin), to perform alarm system monitoring services at QBW's business. Over the course of years, Zeplin overcharged QBW the sum of $1,940.00 for monitoring services, which QBW seeks to recoup. The overcharges can be divided into three areas: 1) double billings, 2) reports paid for, but not received, 3) unauthorized increase in fees. The pleadings and filings established the following: DOUBLE BILLINGS 1. Zeplin has admitted the first eleven paragraphs of QBW's Complaint, said paragraphs alleging the following: C1. Plaintiff, Quality Builders Warranty Corporation (QBW) is a Pennsylvania Corporation with its principal place of business situate at 325 North Second Street, Wormleysburg, Pennsylvania 17043. C2. Defendant, Zeplin's Security Group, Inc. (Zephn) is a Pennsylvania Corporation with its principal place of business situate at 2026 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011 C3. On March 7, 1997 Plaintiff executed a contract with Zeplin in which Zeplin agreed to perform alarm system monitoring services at Plaintiffs business. A copy of the contract is attached hereto incorporated herein and marked as Exhibit A. C4. Plaintiff was to be charged $19.75 per month for a monitoring fee. C5. Plaintiff was to be charged $15.00 per month for opening and closing reports. C6. On October 5, 2006, Plaintiff discovered that Zeplin had been overcharging C7. On June 1, 2001, Defendant increased the charge for the open and close reports from $15.00 per month to $20.00 per month and billed Plaintiff on a monthly basis for the fee for the open and close reports. C8. Prior to the change in the monthly charge Defendant had billed Plaintiff annually for the open and close reports, charging Plaintiff the sum of $180.00, annually, which was paid, by Plaintiff in June of each and every year. C9. Invoices for $180.00 representing the amount charged annually for the open and close reports continued to be sent by Defendant and were paid by Plaintiff for the years 2001, 2002, 2003, 2004 and 2005. C 10. In addition to monthly charges for the open and close reports Defendant invoiced Plaintiff an annual fee based on the original $15.00 charge for open and close reports for five years resulting in an over payment by Plaintiff to Defendant of $900.00. C 11. The $180.00 annual charge was not billed in 2006. 2. Zeplin has admitted that QBW overpaid Zeplin the sum of $900.00 of over billings for open and close reports and is entitled to Judgment in its favor in the sum of $900.00 REPORTS PAID FOR AND NEVER RECEIVED 3. From the period January 2006 through August 2006, Zeplin billed QBW for nine months of open and close reports, which Zeplin did not provide to QBW as agreed. The allegations in paragraphs 16 through 23 of QBW's Complaint, were admitted, the allegations are as follows: C16. In January 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. C 17. In February 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. C 18. In March 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. C 19. In April 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. C20. In May 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. C21. In June 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. C22. In July 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. C23. In August 2006, Defendant billed Plaintiff $30.00 for open and close reports, which Plaintiff paid, however Defendant did not provide the open and close reports as required to Plaintiff. 4. After admitting the allegations in the above paragraphs 16 through 23, Zeplin's denied that their failure to provide the reports did not relieve QBW of its payment obligations. 5. Based on the above admissions, QBW is entitled to Judgment in its favor in the sum of $270.00. UNAUTHORIZED INCREASE IN FEES 6. The contract, executed by the parties, is attached to Exhibit A of QBW's Complaint. (13 of Complaint) 7. Paragraph 7 of the contract, states that the fees charged by Zeplin to QBW will not be increased by more than 10 percent or the annual percentage increase in the Consumer Price Index. 8. Zeplin did not utilize the Consumer Price Index in calculating any increase in fees. (Zeplin's Answers to QBW's Second Set of Interrogatories, Interrogatory number 2) 9. Accordingly any fee increase to QBW should not have exceeded more than 10 percent per year. 10. Zeplin increased its fees by more than 10 percent per year in violation of the contract and QBW is entitled to the return of the unauthorized overcharges as follows: A. Unauthorized increase in fees charged for Open and Close Reports for the period June 2001 to September 1, 2003 (overpayment of $5.00 per month X 28 months = $140.00) B. Unauthorized increase in fees charged for Open and Close Reports for the period October 2003 to March 2007, (overpayment of $15.00 per month X 42 months = $630.00) 11. Based on the above, QBW is entitled to Judgment in the sum of $770.00. CONCLUSION 12. Based on the foregoing, QBW is entitled to Judgment in its favor in the sum of $1,940.00. 13. No Judge has Ruled upon any other issue in this case, and there are no related cases. WHEREFORE, Plaintiff, Quality Builders Warranty Corporation, requests that its Motion for Summary Judgment be Granted and that Judgment be entered in its favor and against Defendant, Zeplin's Security Group, Inc., in the sum of $1,940.00 plus costs. Respectfully Submitted, A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a copy of the Plaintiff, Quality Builders Warranty Corporation's Motion for Summary Judgment Directed to Defendant, Zeplin's Security Group, Inc. was sent via U.S. Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, addressed as follows: Jim Creenan, Esquire Wayman, Irvin & McAuley, LLC 437 Grant Street 1624 Frick Building Pittsburgh, PA 15219 Date I b - - O ari Peggy 'son, Secretary Ca ? ra C= -TI -+ CZ) yk r-- QUALITY BUILDERS WARRANTY CORPORATION IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DOCKET NO.: 07-3512 CIVIL TERM ZEPLIN'S SECURITY, GROUP, INC. Defendant Pl ItMFF. QUALITY BUILDERS WARWTY ORMAIM'S SECOND SET OF INTERROGATORIES DIRECTED TO DEFENDANT ZEPLIN'S SECURITY GROUP. IN-C. To: Zeplin's Security Group, Inc. C/O P. Richard Wagner, Esquire, its attorney Mancke, Wagner, Spreha & McQuillan 2233 North Front Street Harrisburg, PA 17110 Pursuant to Pa. R.C.P. 4005, Plaintiff, Quality Builders Warranty Corporation requests that Defendant, Zeplin's Security Group, Inc. (Zeplin) answer the following interrogatories separately and fully, in writing and under oath on or before thirty (30) days from service. INTERROGATORIES Defendant admitted in paragraph 7 of its answer to Plaintiffs Complaint that it increased the charge for open and close reports from $15.00 per month to $20.00 per month on June 1, 2001. State with particularity the actual calculation used to increase the monthly charge from $15.00 to $20.00. ANSWER: There is two reasons -1) We had not increased your open and close reports in approximately 3-5 years. 2) We had software updates that needed to be added to your computer system which added to our cost. After reviewing your account, the above is why we increased your pricing. 2. In Reference to the preceding interrogatory, if Defendant utilized the annual percentage increase in the Consumer Price Index in performing its calculations, state with particularity the percentage used and the source from where the percentage was derived. ANSWER: We did not use consumer price index to perform its calculations. I Defendant admitted in paragraph 14 of its Answer to Plaintiff's Complaint that it increased the charge for open and close reports from $20.00 per month to $30.00 per month in October 2003. State with particularity the actual calculation used to increase the monthly charge from $20.00 to $30.00. ANSWER: There was no calculation - please see answer to Question 1. 4. In Reference to the preceding interrogatory, if Defendant utilized the annual percentage increase in the Consumer Price Index in performing its calculations, state with particularity the percentage used and the source from where the percentage was derived. ANSWER: No, consumer price index was not used. 5. Identify: A. The name of the individual(s) who performed any rate increase calculation and the calculation they performed. ANSWER: Fred Zeplin B. If the individual(s) is currently employed by Defendant. ANSWER: Yes C. If the individual(s) is not currently employed by the Defendant, their last known address. ANSWER: N/A Respectfully Submitted, John A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation VE-RMCATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. Date: x11-01 CERTIFICATE OF SERVICE 1, Danette L. Cline, secretary in the law firm of Mancke, Wagner, Spreha & McQuillan, do hereby certify that I am this day serving a copy of the foregoing document to the following persons and in the manner indicated below, which service satisfies the requirements of Pennsylvania Rules of Civil Procedure, by depositing the same in the United States Mail, Harrisburg, Pennsylvania, with first class postage, prepaid, and addressed as follows: John A. Gill, Esquire 325 North Front Street Wormleysburg, PA 17043 By Danette L. VC, cretary Mancke,Wagner,Spreha &McQuillan 2233 North Front Street Harrisburg, PA 17110 Bryan M. MCQWIIan, Esquire Attorney for Defendant Date: February 18, 2008 t ? ^; - +'? , C:? ?l I ?? ?..? ? +`"J ? ., i . ? _y t _S <? {:"? r C7 ? -.? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. --------------------------------------- CAPTION OF CASE (entire caption must be stated in full) Quality Builders Warranty Corporation Plaintiff (Plaintiff) vs. Zeplin's Security Group Inc. Defendant (Defendant) No. 07-3512 _Civil Tenn 1, State matter to be argued (i,e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Motion for Summary Judgment 2. Identify counsel who will argue cases: (a) for plaintiff: John A Gill (Name and Address) 325 North Second Street, Wormleysburg, PA 17043 (b) for defendant: James W Creenan, Wayman Irvin & McAuley, LLC (Name and Address) Suite 1624 Frick Bldg, 437 Grant St Pittsburgh, PA 15219-6101 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Februar 4, 2009 signature John A. Gill, Esquire Print your name Plaintiff Date: / J Attorney for i.? ?: ?;:? r a .? ..zr '; ? --fir ? ,, 4 ?= ;' "`t7 ?,. . , ?'? --ii f? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY CORP., CIVIL DIVISION Plaintiff, VS. No. 07-3512 ZEPLIN'S SECURITY GROUP, INC., Defendants. RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Filed on behalf of: Defendant Counsel of Record for these Parties: James W. Creenan, Esquire Pa. I.D. #79213 WAYMAN, IRVIN & MCAULEY, LLC Firm #583 Suite 1624 Frick Building Pittsburgh PA 15219 Telephone No.: (412) 566-2970 Facsimile No.: (412) 391-1464 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY NO. 07-3512 CORP., CIVIL TERM PLAINTIFF, V. ZEPLIN' S SECURITY GROUP, INC., DEFENDANT. RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 1. Defendant Zeplin Security Group opposes Plaintiff's Motion for Summary Judgment on the following grounds: a. The Contract's One Year Limitation Period limits Plaintiff's claims to a maximum recovery of $360.00. b. Factual Issues exist as to basis for Plaintiff's overpayment and increased fee claims. c. Laches bars any claim for claims sums the could have been identified through Plaintiff's prompt attention to the surrounding facts. 2. Plaintiffs claims arise from an alarm monitoring contract for Plaintiffs business premises ("the Contract"). A copy of the Contract is attached as Exhibit 1. 3. The Contract limits in whole or in part the Plaintiff's pending claims against Zeplin. 4. Specifically, the Contract requires any claim against Defendant to be instituted within one (1) year. 5. The crux of Plaintiff's claim(s) relate to events occurring or causes accruing more than one year before Plaintiff instituted this action. 6. Therefore, Plaintiff's claims are barred as a matter of law to the extent that they request any amounts owed for periods more than one year prior to this institution of this Civil Action. The District Justice matter was filed on November 17, 2006. 7. Applying the Contract's limitation term to the present claim, Plaintiff can recover no more than: a. One Year of Open/Close Reports, allegedly Double-paid $180.00 (annual charge) b. Alleged Overcharge for Fee increase 180.00 ($15 x 12 months) TOTAL $360.00 8. Plaintiff cannot recover any amounts for open and close reports from June 2001 to September 1, 2003 Com 1., $ 24), because Plaintiff did not commence suit for those amounts prior to June 2002 or September 1, 2004. 9. Plaintiff cannot recover for "nine months of open and close reports not received" because Plaintiff did not commence suit within one year of the alleged non- performance by defendant. 10. Plaintiff cannot recover for amounts or claims pleaded in Paragraphs 7 through 15 (except perhaps for Paragraph 9's indication of amounts paid for 2005). 11. Neither the discovery rule, nor any tolling doctrine, can apply to claims grounded in contract. Jones v. Harleysville Mut. Ins. Co., 900 A.2d 855, 858 (Pa. Super. 2006) (affirming entry of summary judgment and quoting, Corbett v. Weisband, 551 A.2d 1059, 1067 (Pa. Super. 1988), "Where the statute of limitations is at issue, the burden of proof falls on the plaintiff to demonstrate that the cause of action is not barred by the passage of time and that his or her failure to file the action in timely fashion is excusable."). 12. So, Plaintiffs averment that it only discovered the overpaid sums on October 5, 2006 is of no moment and cannot resurrect any expired claims. 13. Where a contract provides a specified time limitation to bring claims, otherwise known as a private statute of limitations, the courts must honor that agreed term and may not extend the filing period for any reason. See e. g., Chris Falcone, Inc. v. Ins. Co. of the State, 907 A.2d 631 (Pa. Super. 2006) (affirming the trial court's order dismissing the action based on appellant's failure to file the action within the one-year contractual limitations period set forth in the terms of the bond). 14. Defendant acknowledges that the contractual limitation would not bar claims for payments made within one year of November 17, 2006. 15. Secondly, the Motion should be denied because fact issues prevent entry of summary judgment, as the defendant is entitled to pursue to the defenses and claims raised in its Answer, including the amounts of alleged overpayments. The fact-finder alone must resolved theses issues. 16. Thirdly, the Motion should be denied because the doctrine of laches applies to bar the stale claims such as those that Plaintiff could have brought had it diligently operated its business and brought these issues to the Defendant's attention in a more timely manner. Therefore, had the Plaintiff been diligent, Defendant could have cured any billing error without further harm to either side. As a result, the Defendant is prejudiced by the delay in bringing claim and summary judgment is properly ganted against the Plaintiff. Borough of Braddock v. Sullivan Plumbing, Inc., 954 A.2d 672, 676 (Pa. Commw. Ct. 2008). 17. Defendant relies on and incorporates its Motion for Summary Judgment as if set forth at length. WHEREFORE, defendant respectfully requests that this Honorable Court deny Plaintiff's Motion for Summary Judgment. Respectfully submitted, WAYMAN, IRVIN & McAULEY, LLC By: W. Creenan, Esquire No. 79213 ALARK This Agreement is dated 11kA0'a ::I baLyksen ZEPLkL SEGURfTY.GROUP: INC. (the'Comparry') and you (the •Cuttornor-). This Agreement covers the system listed' on Schedule A or any. system. -the Company takes over kom' anothaf cW101MY (the 'System') and any aeMees requested below for the following location (the 'Premises).' The Company has written this Agreement in simple, because it wants the Customer to understand it. Please feel fees to ask any questions. -to-read language eas . y INTENDING TO BE.-LEGALLY BOUND, WE BOTH AGREE AS FOLLOWS: ar• rp" 15* c 5 -r CUSTOMER'S NAME Iny 1 100 - 4 A y J ) ? ?S fi 3r DRESS a j3 r?~I PREMISES: [ : AD - cxl J la ,, PA r?Pl ? ?, ? ? ? , a - h aJ7 02 ,rim O LAr1 Eli ) TELEPHONE: (J121 7 2 ' z --9'z Z_ 4 TYPE OF ACCOUNT: Coroumer Use slephone _ Cellular TYPE OF MONITORING: --v Commercial or Business Use _ Radio _ Other:. ESTIMATED INSTALLATION DATE: CHARGES AND FEES: Purchase Price (salwonly) * * Leese Fee. t /nnonth onffi Monitoring. Fee * Due at signing t? , Due when the System.-Is substantially Other t /mont instaged 8 Repair Fee S /montl Installation Chugs (saleor lease) $ (beginning after the Limit ad Warranty ends) . Due at, signing * Total * /mantt Dire when the System is substantially ? Q n 0 ? All fees. are due in advance aa:foNowc- . u rh annuall Mi rt . i. ir"t ed y rno a _ q a Take Over Charge ldue at signingl s Option Price ;(for purchase of System Lssse (Ttt Payment): 4 st end of the initlal•Wsse TartN 4 THE P=0WINQ SPECIFIC :TERMS (A-F) APPLY ONLY IF A CHARGE FOR THEN( IS:SHOWN-1llBi1YE AND"xHE1(AIffiAEOtJEST$l ftEl OW... ? A ' .,:,The Corte `party:. agrees to Install the System and C n s Th ' ThA ?Wt 1Pr, $e?p?t 1 1! CQ p!g itlls mo?li or/2gytea., JtN yrAl auoMetit agY tei»w foil the aritiaf term the trwnitati s ?vlcaa" ompany -charge. in tallatio e the Customer *gross to pay tKe e , q , : reapormtitY for only bblay' in InstaAadon. The Customer era aseranss succss,Ms sknNar,terms:` ; . must pay, allutldlitq etnarpea Once' the Company receives: a signal thekCsrapamrs will try tc ' The,Customer m6st-notnh C.Rmpany In, writing of any problems Iakr(odlor•person(s: nobly, Dyer ths.r*g *&t*kphoha fw;the age4p" within 30.4 w1?!lf0er al!e irisgl?±4ioR i ihs tlntanrtmwrt,gay et:finy )dert66e4•zora tile-°CuststaNr't'•:MVgfmation 0% Aowwvsi,:ow, -addogna or-;'. ^?to th*r+ tht?.ae allOten on: •Compamyi`,MIiU pa=,A*ft arrYona it rt; o; ;P;. ..?befisyee-Atha: A s nobfavsLpn tcnot required 1 Ctmganyragrees to take over the operation of 4 The Customer agrees. to give- the Company Is complatec 1M Gm rd?.a?wfiae[q.SYsterq arid the Customer "Mae to Pay 'information pest and,to update rc as necspary -The: Comparny-it ahrge for-ts" Rover. The Customer; repres-ts'that it owns the. entitled •0 rely {platy on d is, Cuatanaiys Wi:ionstion sheet. The ? `, • i a s Q :the: SyataQl Co?panyrstwtraaprnstbU:fortrymp'ta?rxnntaetsaQYQQt7lpfse:.', ri?a '?"'!rs,. ,- . :. ,. :.. , •., ?• if the Cpmpariy.4w%not:connect .tlie System:.W.the.tekphorw C. .Solt: The. Company agWes`to sell .tbs System: and the lines, thanthe,Customermust contact ilia+tereplforneioompsny ,wh)d ' Custor*.. agrees to pay for Itr4he•Porroany.:will own the System until , o wig -installand bill.-the Custor7er..directty.'*,any telsphone•:linss : that:.the.-Customer wills own the System the Customer..&ss so :Aftsi ' equipmernt '. : _ Company's except for' the trarismttUngdevka' *hIch• contains the e , . The Customer understand$ that no. form of: monaQrng-is error will always own: firs ornp proprietary data.ared w. free. The Customer also understands: that the Company Is no 0 D. ' ow .The Company agrees' to lease the System to the responsible for -sorry, irrtanttptlon; at service due tp arty Cause: beyorx Customer for an initial: term of years from. the date of this the Company's core". such as-faulty telepbone.lines or.any dafiragr Agreement and: the: .Customer agrees to pay the Company the lease or destruction to ,the.:Comparty a; equipment ;.or. faislitles:...Ttx lass. After the initial •term, the lease will - sutomaticstly renew for Company,•ie not rnguked ta;aupp)ymon40,64, ;,sarvica:.to the Cisterns successive similar terns. • The System : wig : always remain the while such interruption cominuatr . If. the -;Customer . requests Company's property. however, the Company will give the Cuatonter.a pro*rets refund if the As soon as the Company reasonably can, it agrees to repair the interruption lasts more then, 24.houni and is'dus to any damage o ' Systsm due to ordinary wear and toot, If there' is any problem with the s equipment or facilities. destruction to the Company System.-which is not due to ordinary. wear and tear, the Customer agrees to pay the Company to repair itat the Company's then-current l? `-+ F. Rspak. The Company agrees to provide repair service U charges. the System for an initial term of years. after the and of tla ' At the and of the lease, the Customer will return the System to the Company s,?mRad Warranty and the Customer agrees to pay tM Company the repair fees. After.. the initial. tern, the repair service Company in good condition, except for ordinary wear and tear. If the will automatically renew for successive similar terms. The Customs Customer fails to do so, the Company can peacefully enter the Premoas agrees not to allow anyone besides, the Company's employees a aril remove the System, but the Company has no obligation to do so. agents to repair the,System. At the and of the initial lease tern, the Customer may purchase the paying the Option Price. For more information, refer to the System by Company wig provide all labor, material. and parts nxessar The . a Lease Informadon Form. to service the System due to defects in the System and ordinary wee and tear The Coripany wrN:do-so as soon es It reasonably can. T)v .- E.. IIAOOILg '(he awses.ta taorikor,,signa[s:fAOm the, _. ' » t i .;Cggtpany's np?p?tron.ta,.Mmds thi[s se^?;toip.ript coyer.battenie T' - ' ' ls 3 r the dEts•of his ant. System far an initid term of tiara 4ro n m re ss devotes. THE WSTOMER.ACkNOWIEDOFS.THAT-IT..FWS:R1sCpl _A C ( OF T4" A(+R?rJYIENl ANQ AL4 LiS AT?ACHl1AEN73. THE CUSTOMWR•ACIWOWLEpGES THAT fL>HAS:READ'AND.:idLE>OD Tl?il:¢XFSREI?CLGY TNQSEt8EGiADNS,GN THE REYEItSE S10B'RELATiNG TO rm PROTECMF4 OF THE'.COMRANY AND THE C0M1PATIY'8•L1M1TEDAAAWW W.. ANLtiN.AARANWn . I-Q.I.-- , AWQAcT10NC. oNLYI YOU MAY CANCEL THIS CTIAN4T•ANY" . M14!-F%WR TO-MIDNIG14T OF THE TFQRD;'BUg1NF.SS•DAY•AFTFA THE :DATE OF THIS TRANILS/t4 . 0 :: PLEASE SEWTHE'ALTM- CRED NOTICE. OF S LGS#f, I tk lOsl 60RNL FOR'A?N E., PC?1l4k.6 E 1k11 ? CUSTOMER.' t7RrTY GkFOP,-*C: ' _- `. FlCti-li :,Z v1?n1 -i it f_?•viL. :.?_::i'+, , ? !G ?f Bx:' By:_ _ Authorized Representative i i 1 { L 1 (28 11411 a N ail say. f, ••TATtON OF THEY'S LL?1Y. IF THE COMPANY 15 FOUND tIAeu FOR ANY LOSS OR DAMAGE DUE TO ITS NEGLIGENCE OR THE FAILURE TO PERFORM ITS OBLIGATQW IN TM AQRSMNT. )NCLUMG NSTALLN G. MONITORING, REPAIRING OR TAKING OVER THE SYSTEM. IN ANY RESPECT AT ALL. THE COMPANY'S WLklum IM UABLIIY WILL BE $750.00. THE COMPANY WILL ASSUME A GREATER LIABLITY. SLIT tRgLY FOR AN ADDITIONAL CHARGE TO OE AGRM UPON BY THE CUSTOMER AND THE COMPANY. IF THE COMPANY DOES SO. A HIM WILL BE ATTACHED TO THIS AG1871ENT. THE COMPANY EXPRESSLY DENIM ALL L" ITY FOR ANY OTHER LOSS OR DAMAGE WHICH MAY OCCUR PRIOR TO, AT OR AFTER SKMW(i THIS AGREEMENT. THIS NCLUDES LIABILITY BASED ON CONTRACT, TORT, NEGLIGENCE, WARRANTY (INCLUONG MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND ANY OTHER THEORY OF LIABI.fTy. THIS EXCLUSION SPECMICALLy COVERS LIABB.TTY. FOR: LOST PROFITS: LAST OR DAMAGED MWPBM; LOSS OF USE OF PROPERTTY OR THE PREIY M: GOVERNMENTAL FINES AND CHAR IES; AND THE CLAIMS OF THIRD PARTIES. ALSO COVERED BY THIS EXCLUSION ARE THE FOLLOWING TYPES OF DAMAGE(: DWACT. PKWtWr. SPECIAL INCIDENTAL, CONSEOUE TIAL (DAMAGES THAT FMUILT FROM AN ACT, BUT DO NOT McMY FMATE TO THE ACTT AND PUNITIVE (DAMAGES USED TO MAKE AN EXAMPLE OF SOMEONEi. 2. inxi lim. The Customer understands that THE COMPANY IS NOT AN INSURER. The Customer is responsible far obtaining ad insurance the Customer thinks is necessary, Including coverage for personal itjuY and property damage. The payments the Customer rakes under;this Agreement are not related to the value of the Ftemtraa or the Customer's possessions, but rather are based on the cost of the System and the Ccmpariy'a services. The Customer ro%"" the Company from any geWMty tot any event or condition covered by the Customer's Ineuarnce. The Customer understands that the System is designed to reduce. but not egrnmats, certain risks- The Comparty does not guaranty that the System will prevent personal it irv, unauthorized ertbanees or fire and smoke damage to the Premises. The Company saseumes no liability for Bosses risks. 3. ! immldilOhlmD[Y• (a) For 12 montls'trom the data of Air Agreement# the Company warrants that if any Part of the System does not work because of s defect or bacauae.,of ordewy wear and ear. the Comtery Will repair or replace Mat curt at no charge to the Customer. The CormPalty :<may use reconditioned parts in making repairs. but the Company warrants the replacement pars a* for the of the warranty prrbd. This lkrkod warranty doss riot cover batteries in wireless devioss, nor does it apply if the System has been damaged by am beyond the Company's comial' Such acts Include accidents. power'suigae, misuse, lack of proper rneknerionce. unauthorized chances or acts of God fwrch as fires, earthquakes, torhrdos, etc 1. The Customer must notify the Company of any problem. the Customer claims the Company's limited warranty covers within the warrecty period. The Company will repair the problem as soon as it reasonably can after it receives the Customer's notice. (b) This limited warranty Is the only warranty the Company makes, is made only u the Company Installed the System, and takes "place of erg otter warranties whether express or implied. too flTPRMS on INPUEO WARRANTIES'EXrM BEYOND THE FACE OF THIS AGiEEIYIBJT. THE COMPANY MAKES'1Y0-'IkVUW WARRANTY OF MOtCh OkMTABRITY OR FITNESS FOR A PARTICULAR PURPOSE The Company does not promise that the System or its services cannot be compromised or that they will always provide tits intended signaling, monitoring or other service. H a coon decides the Compaq has given the Customer any implied warranty, it will extend only for the length of the tanned warranry period. Some states do not slow limitations on how long an implied warranty lasts or the exclusion or Nmitaton of incidental or consequential damages, to the above limitation or exclusion may not apply to the Customer. ? This Iknited warranty gives the'Customer specific legal rights. The Customer may also have other legal rights that vary from state to state. 4. Cudgatime, Prateetlan of Carnearty. This Agreement is intended only for .the Customer's benefit. Therefore, the Customer agrees to protect/indemnity. defend and relass l , the Company snd the Company's related parties from lability against all #".party claims or losses (Including reasonable attorneys' feat) brought seei net the Compaq which relate to the Systc.n or the services the Company provides. The Company's related parties include the Company's employees, agents and subcontract oib. ' This protectbrVNdeninky covers Balms brought against the Corlp*W by the Customer's insurance commparry. it also Includes plains "Ing under contract, warranty, repiigence, or any other theory of liability: . The Customer's duty to.protect/Mennity the. Company, however; doss not apply to claims based on iryuries to third parties or to their property.that occurred while the Company's employees were on the Premises and which were caused solely and directly by those employees. In case of any third party claim or loss covered ly the Customer's. Insurance, the Customer agrees not to took to the Cornpsrry or the Company's related portion for reimbursement. The Customer waives any rights that the Customer's insurance carrier or others claiming through the Customer may have against the Company or the Company's related parties. S. mosab. The Customer has the authority to sign this Agreement and in doing so will not violate array other -agreement. The Customer is not aware of any hazardous oonditions on the Promises. The Customer agrees to prevent false storms and sssun-m responsibility Ter them. If the Company notifies the Customer of a malfunction, the Customer will disconnect the System until the Company can repair it. The Customer wig not temper or interfere with the System. nor permit others to do so. The Customer agrees that the Company can regard and use all otimm nicatione with anyone at the Premises in the normal course of the Company's business. The Customer will test the System at text once a month, as well as when changes we made to its tolophons System or the Premises. The Customer will immediately, notify the Company of any problems with the System. The Customer agrees that the Company can make program changes to the Company's proprietary data located in the transmitting device. The Customer will pay the Company its then-current - charges far doing stry work rot covered by this Agreement., including paying the Company's minimum service charge if the Company cannot enter the Premises in the scheduled time. The Customer's obligations continue even if the Customer ask or leaves the Premises. 8_ The If the Customer faile to perform its obMgatkxs, the Company will give the Customer written notice of dafsuit. if the Customer doss not fix rho default within 30 days, the Company can and this Agreement, if Ma Company ends this Agreement, the Customer rust pay the Company: (a) all amounts then due; fb) 80% of the amount due the Company for the remairdw of this Agreemet (as an egresd-upon amount of damages and not as a penalty); and Icl the Company's reasonable collection costs, including strotheys' foes. K this Agreement Is ended. the Company dons not have to provide sry service, inckrAn a monitoring, after that date. In addition, the Company can peacefully enter the Premises and remove its equipment. If the Company waives any default by the Customer, that does not mean the Compaq waives later defaults. Any waiver by the Company must be in writing. The Customer grants the Company. a . security interest in any property the Comipeny installs on the Premises in o"W to setaita payment of On purchase price or performarKe ender the Issas, The Customer must return such property W it doss not tuiv GeV for it. If the Customer does not return such property, the Company will ask 'a Coin to force the Customer to do so. The Company has the rights of a secured party under the Uniform Commercial Cods. 7. k The Custorar agrees to obtain all licensee and pay eN taxes. fires and other sesessmwite, inckMfng sales taxes.' The Coar"ity's fees are based upon. existing taxes and and the Company can increase the Company's fees to'reflecli it three taxes or charges. ' After t? f, y?a[.gf tins rt!er>j,-Rt° fitptttµ?ny:canktxease the percentage CongpaN s f W an erxasl t r1t up to 10% or the a iv Jal kxxease in ilia-C 1 Pros trig, wliiiiMvar is higher, in addition to any it7essai des to texes-a charges. If the Customer is more than 30 days late with payment, the Company can defile the Customer imaest up to the highest rate allowed by low. In addition, the Customer agrees to pay the Company's reasonable collection costs, incknding attorneys'. foes, and a reasonable reconnect fee if the Company has disconnected the System. e. Transfers: The Custdher 'csrmot;'Jrs $fer this.Agwment without the ComWV,'s consent. However, the -Comperg An.8a*er.thit Agreemenit brauboamaot ice obh9lit6m without the Customer's consent. If the' Company do& 3o,' anyoni"to Whdim'the Company, transfers or Subcontracts its obligations will hove all of the Company's rights. The Company is not responsible, however, for any wok, Including monitoring, which is done nepligemly by arty thud party. 9. . Unless otherwise indicated, all notices must be in writing. The- Crutoma:pr"Company may end any portion of this Agreement by fiotflyin p the other party at loan 30 days prior to the and of the then current term. It is ixitical that the Customer give any termination notice in a timely manner. The Customer must bring any claim against, the Company within I Yew attar the claim arose. If the Customer does not, the Customer has no right to sue the Company and the Company has no liability to the Customer for that claim, It is orihcai that the Customer bring any claim in a timely manner. The provialons of this Agreamentwhich apply to any claim remain in affect even after this Agreement ends. THE COMPANY AND THE CUSTOMER BOTH ONE UP THEIR RIGHT TO A JURY TRIAL. 10. .MkodROglas• This Agreement contains the entire understanding between the Customer snd the Company and replaces any other documents Or d(caasions the Company previously had with the Customer. This Agrwnent is not binding on the Company Until the Company or its authorized agent sigre it or begins installation or service. This-Agreement Is governed by Pennsylvania law. If the Company does not approve this Agreement, the Company's only obligation is to refund any PNthents the'Customer has made. Any equipment or services the Company Provides to the Customer In the fuhse are subject to the terms of this Agreement, as so amended. This Agreement cannot be changed except by a writing that both the Customer and the Compaq sign. - If any provision of this Agreement is found to be invalid, the remaining provisions we still effsctwa. The word 'including' means 'including wither limitation.' Except for monitoring, the Company win only do work during the Company's normal business hours at 3:00 a.m. to 5:00 p.m. on weekdays, excluding holidays the Company observes. All schedules and attachments are a part of this Agreement. "6,tA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Quality Builders Warranty Corp. No. 07-3512 Plaintiff, CIVIL TERM V. Zeplin's Security Group, Inc., Defendant AND NOW, this 2008, upon consideration of Plaintiff's Motion for Summary Judgment, as well as all argument and opposition by the parties, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that said Motion is and be DENIED. BY THE COURT: ORDER OF COURT day of J. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served on the following counsel of record by first class U.S. mail, postage pre-paid, or by hand delivery, this 4 h day of December, 2008: John A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (Counsel for Plaintiff) WAYMAN, IRVIN & McAULEY, LLC BY: G < co 3??y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY CORP., CIVIL DIVISION Plaintiff, VS. No. 07-3512 ZEPLIN'S SECURITY GROUP, INC., Defendants. MOTION FOR SUMMARY JUDGMENT Filed on behalf of. Defendant Counsel of Record for these Parties: James W. Creenan, Esquire Pa. I.D. #79213 WAYMAN, IRVIN & MCAULEY, LLC Firm #583 Suite 1624 Frick Building Pittsburgh PA 15219 Telephone No.: (412) 566-2970 Facsimile No.: (412) 391-1464 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY NO. 07-3512 CORP., CIVIL TERM PLAINTIFF, V. ZEPLIN' S SECURITY GROUP, INC., DEFENDANT. MOTION FOR SUMMARY JUDGMENT AND NOW, comes the defendant and files the following as its Motion for Summary Judgment Pursuant to Pa. R. Civ. P. 1035.2 and Local Rule 1035.2(a). 1. Defendant Zeplin Security Group moves for entry of partial summary judgment on Plaintiff's claims as follows: a. The Contract's One Year Limitation Period limits Plaintiff's claims to a maximum recovery of $360.00. 2. This Motion substantially follows the Defendant's Response in Opposition to Plaintiff s Motion for Summary Judgment. 3. Plaintiff's claims arise from an alarm monitoring contract for Plaintiffs business premises ("the Contract"). A copy of the Contract is attached as Exhibit 1. 4. The Contract limits in whole or in part the Plaintiffs pending claims against Zeplin. 5. Specifically, the Contract requires any claim against Defendant to be instituted within one (1) year. 6. The crux of Plaintiff's claim(s) relate to events occurring or causes accruing more than one year before Plaintiff instituted this action. 7. Therefore, Plaintiffs claims are barred as a matter of law to the extent that they request any amounts owed for periods more than one year prior to this institution of this Civil Action. The District Justice matter was filed on November 17, 2006. 8. Applying the Contract's limitation term to the present claim, Plaintiff can recover no more than: a. One Year of Open/Close Reports, allegedly Double-paid $180.00 (annual charge) b. Alleged Overcharge for Fee increase 180.00 ($15 x 12 months) TOTAL $360.00 8. Plaintiff cannot recover any amounts for open and close reports from June 2001 to September 1, 2003 Com l., ¶ 24), because Plaintiff did not commence suit for those amounts prior to June 2002 or September 1, 2004. 9. Plaintiff cannot recover for "nine months of open and close reports not received" because Plaintiff did not commence suit within one year of the alleged non- performance by defendant. 10. Plaintiff cannot recover for amounts or claims pleaded in Paragraphs 7 through 15 (except perhaps for Paragraph 9's indication of amounts paid for 2005). 11. Neither the discovery rule, nor any tolling doctrine, can apply to claims grounded in contract. Jones v. Harleysville Mut. Ins. Co., 900 A.2d 855, 858 (Pa. Super. 2006) (affirming entry of summary judgment and quoting, Corbett v. Weisband, 551 A.2d 1059, 1067 (Pa. Super. 1988), "Where the statute of limitations is at issue, the burden of proof falls on the plaintiff to demonstrate that the cause of action is not barred by the passage of time and that his or her failure to file the action in timely fashion is excusable."). 12. So, Plaintiff's averment that it only discovered the overpaid sums on October 5, 2006 is of no moment and cannot resurrect any expired claims. 13. Where a contract provides a specified time limitation to bring claims, otherwise known as a private statute of limitations, the courts must honor that agreed term and may not extend the filing period for any reason. See e. g., Chris Falcone, Inc. v. Ins. Co. of the State, 907 A.2d 631 (Pa. Super. 2006) (arming the trial court's order dismissing the action based on appellant's failure to file the action within the one-year contractual limitations period set forth in the terms of the bond). 14. Defendant acknowledges that the contractual limitation would not bar claims for payments made within one year of November 17, 2006. WHEREFORE, defendant respectfully requests that this Honorable Court enter partial summary judgment in Defendant's favor by limiting the Plaintiff's recovery on all claims to $360.00. Respectfully submitted, WAYMAN, IRVIN & McAULEY, LLC Fes W. Cree-mr , Esquire Id. No. 79213 ALARM' 01M NEW This AgrwrrwN a dated 17J<GF?•? bamig n zexw SEGURITY:GROUP: MIC. (the 'Company') and you (the 'Customer'). This lpvssnsnt covers the system NOW on Schedule A or any. system the Company takes over kam'art dW many (the i l mp e, 'System') and any. a.wvk s requested below for the following location (the 'Promisesry. The Company has writtwIM Agreement in s easy-tweed WnQW90 because It wants 4w Customer to =*stand it. Pima fed free. to ask any questions. 2 INTENDING TO BE.kEGALLY BOUND. WE BOTH AGREE AS FOLLOWS: `. r e m t S E 5 -re kr s' ` i '--4e-. CUSTOMER'S NAME j GINM 12 5 S"i S PREMISES: ?S a7 Qkulg War . : ADDRES 19"#J- 42-s aim OtAFlfIS C1, TELEPHONE: 1 71%d 'Z tZ / TYPE OF ACCOUNT: Consumer Use . _Talsphane - Cellular TYPE OF MONITORING: _.v Commercial or Business Use _ Radio _ Other:. ESTIMATED INSTALLATION DATE: CHARGES.ANO.FEES: Knobs" fhka.(;ale only) + t Lease Fee. t_Jma+th 1,Limontis MoNtNW Fee 4 2 _ Due at slggitq i? • . :- , Due when Vw System 4s substantially Other I /monti installed a Repair I" $ lmontt Installation Chaige'(ialror 1"") tl (begirrdng attar the Limited Worrenty ends), Due at signhp 1 Total /monM Din when tM System it substantially . k+stow $ !7A. ell All fees: are due in sdvarw. se followv '. mgnthlY ` WnrtMy smugly Take Over Charge (dun at signing) F Option ".or puchase of SystNr? .. .; ! ass (fit PiymeMl .' I at and of t wkitieFww Tam) 4 THE FOLIA W'IQ SPECIFIC T7 IW4A-F)'APPLY ONLY IF A QWM FOR THEnk ISstiNOWN-AnWW AND W-.A -BELOW... ?A. Iojjaillol .Thd'Cortip. iy-avon'.to Install the System and -TIN ?!1#Sk?°??!!^?? 4!i4gs?t: lwtsw to lC °, i A l A h hs the Customer-'agree to oW i1t Installation charge. The Company a Yr y it , t e•mon to np. pKy(asa . t •r?apattaibiREY`ibf ati bslw in kwRaladat. Tlw .GMtomer aswanes no, sueosashM sienNer,tirms.' . . rnwt pay alC.[Rlitq dwg". Once the Cwnparty receiver a signal,.•iMat%eApany Will try U The.W. tO•.n•N. - Uo.:notiN V4:'G.QWW*inii WMng of MlY:l?rO114am :nglKy,.O!W t ••raQ{ -1 -pow s: wId 3OA >l ante krt tian:z, the il+stvn?r must IsY f« Oty iCindBe :aa, the °Ctaboarar . 'InfgrrNtaSpn : ?gafG t* NowAYSi r ga eset Al°•. ?lt.? +4t1s Rpt =+»h MPyoria It h ?eaaA!abaNwes the t+k r - u Bi s gmgen(tsipraee to tab own the eparetnort.of The Customer agree to 0- the'..Caprpsrry a .compNtst the` art ?fNs cuss Qrr apnea to pay ? 'Information *_)W and-to upds"*It as.ttecssaeryt The Cpmpiny'b charge for taklriq it^own. '7fie Criitainir; reP?Wnts Niat If owae ,tM. W%;tjsd ,'to raps: *.W on 1M.-Ct ter'aslnlatmotibWtfket. Tim tpa .. Syf>fask:. .: Co!nPanyitcitot;respotpi6le:foCtrykn?tb?contaetsttiyppgphe:,;; .. . , . x.- .. r if the ., Comparo'cairab' coateot0 Iiystem t0'ahe .tebplrre O C,%-: $sl4 . T1M. Company cares : to ad System.and the fins then ehs•Gstmnerpwrt conhet Ir+tsYaplmriioompaty awhld Cuatamal apses to pag9otr h, r3tr. y.• will ov m rte System tarW dredhr..'for; aa)i. teleP ?! .Tarns o wB . ertalt and bill :the Ctrtorr?ar, 1fia,.Cuttgnter.doee so :After: that;,Thd ( rstaner w* own the System : sgtsprrnerd except for tfw`; tratieiefttirig device, ivlieh• contains the . COmtlany's' propriatery data anQwlnid the Computy will always own. The Custerner• undemanda that. no form of. mohonnpn,ie•error ' ulidaraterds; that the .,Cujnpan is no free. The Customer afro D: 'Lora... Ttie•'Company aWoes' to tons the System to the responsible..for aty;irrteinptlon of aerylgi:duelp airy Cewa: beyonx Cuetomai'la sn srifiel:term of .years :from the date of this tlirEomganY'e canlral;.surch ac faulty t la $hxvw.lknss a any da6sq, Agreement utd:thi,-Customer agrees to..pay.ths Company the lease or. desb xdm to,the.Corinpriy'r, agtdpaMmt.,:or. faciitlsa...:..TM fees.: Att«` the knjdal :team, the Isaac win .lutomaticagy .renew for CanP+nY w ?t ngtwed m:arN!Phr'Aatvies:.toths Customs successive similar "Mims.: The 'System • will: always remain the while such k2aruptiar conikilsiR. IF. the-;Customer :requests Company's property. ho-or, the Company will g)ve:dp Cwtoma.s Wotah refund if ttv As soon as the Company reasonably can, it agrees to repair the Interruption lash more tlrh•24':ftoura:and )s due to any damage o ' System due-to ord'alery wear and tear. -I there•is any problem with the s equipment or fecllld". destruction to the Company System.. which Is riot due to ordinary. weer and tear, the Customer agrees to pay the Company to repair it-at the Company's then-current r?'? l_y F. $illink. The Company awe" to provide repair service b - charges the.System for an IrAW term of years. after the and of tM ' At the and of tlrlease, the Customer will serum the System to the 4LJmitsd Warranty and. Customer agrees to, pay tN Company s Company tM ropak fees: After the initial- term, the rspak servlees Company in good condition, except for ordinary wear and tear. If 1M will autOmitiCMly renew for successive similar tams. The Customs Customer falls to do so, the Company can peacefully enter the Promisee agrees not to allow anyone besides. the Company's employees o and rimow the System, but the Company has no obligation to do so. agents to repair the:System. At the end of the Wdal base tern, the Customer may purchase the ,?lts Option Price. For more information, refer to the System by. paying The Company will provkle sll labor, material. and parts necesser t , ease ktfonnation Form. ; s in the Sydem and ordinary woo to service the System due to defec and tow. 'The Company WMJde sole neon's ittessonably ran. Ttr E.. apghgdgg. Ttw te:trtotraigtn(s i<om.ahe C' t ? " ' J. 'i doefta p(gvtde:thif sendca derteowr.batteris - ' t ' ds h theA?teef liis/ugrsimerN. iiJtlalterm-of Systentfaren . I . . 's f Z1E WSTDMER.AfaallNOWkEJ70E$ MAT ft.F1A8:86CE11 i,A COIF: OF:li1j8; f JdT ANq 1:[ &,.A7 AOHMENTS. THE ' TO lT3 PROTECTION OF TNE'•COmelomv AND Ti* OF MAY TOO IVIONIOFtT ED NOMCS OF B)(' ''3alee • reon ? ey: Authorized Representative RFMFRAt TERM. t- 1 WrTAY M OF THE„COMPAM'S A tTY.- 110 THE COMPANY IS FOUND UARI.E FOR ANY LOSS OR DAMAGE DUE TO ITS NEGIAENCE OR THE FALIRRE TO PERFORM ITS OK12ATKNU IN TH U AO MMEMT, INCLUDING 1NSTALL111110, MOISTORING, REPARMIG OR TAKING OV6t THE SYSTEM. IN ANY RESPECT AT ALL. THE COMPANY'S MA1tYA m LIABLTTY WIl SE $750.00. THE COMPANY WILL ASSUME A GREATER LIABILITY, R:IT OHR.Y FOR AN ADDITIONAL CHAN* TO BE AGREED UPON BY THE CUSTOMER AND THE COMPANY. F THE COMPANY DOES SO. A FWGR WILL 96 ATTACHED TO THIS AGREEMENT. THE COMPANY EXPRESSLY DOM ALL LIABILITY FOR ANY OTHER LOSS OR DAMAGE WHICH MAY OCCUR PRIOR TO, AT OR AFTER sUMM THIS AcREom T. THIS B$CLUOEB LIAglim BASED ON CONTRACT, TORT, NEOUGENCE, wARRANTY (S11t:LU0ING MERCHANTABILRY AND PrTN S FOR A PARi1CUlAR KwzioSEI AND ANY OTHER THEORY OF LIABILITY. THIS EXCLUSION SPECIFICALLY COVERS LUMAM FOR: LOST PROFITS; LOST 00 DAMAGED FROMM. LOSS OF LOSE OF PROPEM OR THE PREMISES; GOVOWARIMAL FINES AND CHARGES; AND THE CLAMS OF THIRD PARTIES. ALSO COVERED BY 7NI8 EXCLLISWN ARE THE FOLLOWING TYPF38 OF DAMAGES: DIRECT. RMXNWr. 8PECIAL, MCIDDITAL. CONSEOUENTYLL (DAMAGES THAT RESULT FROM AN ACT. BIT DO NOT DMOMY RELATE TO THE ACTH AND PUNITIVE IDAMACES USED TO MAKE AN RUMPLE OF SOMEONEI. 2. Jdaine . The Customer understands that THE COMPANY IS NOT AN INSURER. The Customer is responsible for obtaining all insurance the Customer thinks is necessary, including coverage for personal in?tsy and Property damage, The Payment* the Customer makes under #6 Agreement are not related to the value of the Prombes or Ile Customer's piliandono. but rather are based on The Cost of the System and the Company's services. The Cuatomw releases the Company from any flabllty for any event or condition Covered by The Customer's Insurance. The Customer underaonda Out the System is designed to reduce, but not siiminate. certain risks. The Company does not quarenity that the System coil ta-ent personal ijuy. uasuthodoxf intrancas or ere end amok e damage to the Promises. The Comporw essumse no KW*ty for thas risks. limCBd,1Bh188oCc- (a) For 12 rtendne'from the date 0 06 Agre r nartj the Company warrants that if wry part of the System don nocwork because of a defect or bscatgs•oVoidirwy wow and scar, the Company will repair or repNa that part at no chow" to the Customer. The Colmpsny,amay ise racordittoued Pats in making npatrs, but The Company warrants the ropbteoent pats o* for Tice of the worrardy pwio& The Kmited warranty don rot coves bettedes In wireless dates, nor does R apply if the System has been damaged by acts. beyond the Compay's'contiviY. Such acts bdude accidents. power 'surpas, misuse, tack of prow mairnatance, tmudtorbod dertRn of acts of God with as figs, aathgwkes, tttmrdos, etc-I. . The Curtpmer must notify the Can"" of any problam•The Custerw claims the Company's Wriked warranty covers within the wwrerny period. The Company will repair The problem so soon es it reasonably can after it receives the Customer's rotia. (b) This limited warranty Is the Only warranty the Conipiny makes. Is made only I the Company Installed the System, and takes.u»' place of an other waironniea whether express or inPlad: NO OHMS Olt MPUED WARRA M RUM BEYOND THE FACE OF THIS A,GIEEBIWr THE COMPANY MAKES'JY0-AtiPLED WARRANTY OF MEICNANTA KM OR FITNESS FOR A PARTICULAR PURPOSE. The Company does not promise That the System or the services cannot be oomprOmisd er that they will always Provide the imended sipnaft, monitoring of other service. If a Wirt decides the CompwW has given de Customer any Implied warranty, it will extend only for the length of the limited warranty, period. Some states do not Draw Wnitedors on how long an Implied wartarty ISM or the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to The Customer'- This limited wansrny gives the'Custonta specific legal rights. The Customs may also have other iso rights That very from auto to state. d. Cuate--a f4neamo of Caroerwr.. This Ag reemoint is intended only fo .the Customer's bweflt.. Thasfore, the Cuotoma' apses to potect/stde nnify, defand and.. release Ahe Company and the, Company's related peruse from 11"ty against all tlird. party clams or buss (Including reasonable, anwnoye' feat) brought $going the Company which rdsu to the SYSts-m Or the Serviese the Canpony provides. The Company's related parties include the Compay's employeaa, agents and suboo(Wictote: This covers clalne brought spirm this Cadpsny, , by the Customw's insurance vesoparmy. 'it also Includes Worms "Ing under contract, wwrcmy, negligence. or any Other theory of labiitje: . The Customer's duty, t protactrindemni)y the Company, however: does net apply to chines based on iry'ugaa to third parries or to .^t.•* property.that Occurred whsle the Company's employees wwe an the Nremlsn and which were cawed solely and directly by the" empkoyses. e ass of any thin! Party claim Of less covered by the Ctietomw'a itmstranem, Chu Customer agrees not to look to the CWMsrry or theCompany's related pwfl- for reimbursement. The Customer wives any rights that The Customer's 'Manama Cartier or others claiming through the Customer may have against the Company or the Company's related Partin. S. The C . The Customer has the authority to sign this Agreement and in doing to wilt trot violate any oNer.apesman. The Customer is not awns of any h osadous oonditioro on the Promises. ' The Customer agrees to prevent false alarms and ssaume responsibility for them. U the Company coolies the Customer of a malfunction, the Cuaomer vwll disconnect the System until the Company can repair it. The Customer will not Temper or interfere with the System. nor permit others to do so. The Customer agrees that the Company can regwd and use all communications with anyone at the Promises in the normal course of the Company's business. The Customer will tam The System at leest once a month, as well as when charges are merle to he telephone svitam or the Promises. The Customer will bmeolataly notify the Company of any problems with the 'Systsm. The Qnttafner agrees that the Company can make program changes to the Cornpeny's proprietary duo located in the transmitting dance. The Customer wig pay the Comparry its then-aarstrt Charges for doing arttr work not covered by the Apaansm, includbg paying the Company's minimum service nhargs if the Company cannot ems the Promises at the scheduled time. The Customer's obligations continue even if the Customer ask or leaves the Premises. a. If the Customer falls to perform its ob11gatlors, the Conpwmy will give the Customer written notice of default. N The Customer doss not Rtt the default within 30 days, the Company can and this Agraernant. K the Company ends this Ag room.m, the Customer mxtst pay the Company: (al M wmounts then due; (b) 80% of the amount due the Company for the remainder of this Agreement (as an agreed-upon amount of damages and not as a penalty, and lei the Company's reasonable eotecdon costs, inckidng sttotheye' lass. It the Agteamew Is ended. the Company doss not have to provide any service, including monitoring. after that date. In addition, the Company can Peaodully dotter the Preirmlees and ratTw" its equipment. If the Company walls any default by the Customer, that doss not mean the Cotttpany waives later defaults. Any waiver by the Company must be in writing. The Customer grans the Company- a security' imarsst in any Property the Compsoy installs on the Promises lit order td.simn payment of the Motion Pita a Performance cedar the 4, The C1 kOrnef must return such properly'N it does rot fuey pay for it.' if the, Customer doss not return such property, the Company will ark's court to fares the Customer to do so, The Company has the dons of a secured party under the Uniform C isamorcial Coda. 7. AMER t'rl miss. The Customer awns to obtain an Ree eo s and pay of taxes. linos and odor assessments, i cubing sales tabled.' The Company's fees am band upon existing taxes and g!s; and de Company can itpuss the Company's fees to 'reflect = in thew ' taxes or Charges. After rit7f{ht?en-yrCpyoyean4npaasett- Coaapa(iy i W an arrarai up to 10% or the ann percemsge knasssi M t}'ia CbnwStiT?P Y'r6o 'hidsx, r liicltever Is higher, in addition to any ioaestei dun to texas er. derQes N the Customer b more khan 30 days late with Payment. Me Company can charge the Cu-w h-A~ up to the higteu ra* allowed by law. In addflbn, the Custcerer agrees to pay the Company's reasonable collection Costs, including Moneys'. fees, and a reesosbfe reconnect fee it the Company has disconnected the System. 8. Si>ROlteu. The Customer -carat ''"Mfer this .AOuamant VWthbertllia Complfny's; t:oreen?ti;.tr ?However, the- drtlOwl`;C.{R.4al 'ta(tlit Apeelria t' or"auboontraotiii chip libM without the Customer's consent. I the- Compshy do* to. - anyoni'td whnim'the Company ttansts" a cubconnacts ilt Obligations will have all of the Company's rights. The C-M-Y is net resPansible. however, for any wok, Including monitoring, which is dory negligently by any third party. 6. - Am . UrOm otherwise Indicated, an notion must be in writing. The-Crusomw. pr, the Company may end any portion of this Agreement by ;rwtl(yinp; the otter patty at loan 30 days prior to the end' of the then current lam. '' It is &it" that the Customer give any termination notice in a timely manner. The C ustermer must bring any Claim again. the Company within t Yew after the Claim arose. K the Customer does not, the Customer has no right to sue the Company and the Company has no lability to the Customer for that Claim. It is critical that the Customer bring anon claim in s timely manner. The provisions of this Agreanant'which apply to cry Chinn remain in effect wen after this Agreement ads. THE COMPANY AND THE CUSTOMER BOTH WE UP THEIR RKWT TO A JURY TRIAL. 10, MbigerAmaila. This Agreement contains the entire understanding between the Customer and the Company and replaces any other deciA N Or diiNealors the Cats MY previously had with the Customer. • This Agroomis t is net binding on the Company and the Company Of its audnattand agent signs IT or begins installation 6, service. TAia Agreement Is governed by Pawykvanis low. If she Company does not approve this Agreement: this Company's only obligation Is to refund any psyrnante the'Gntolran her made. Any OquiPi tarn or services the Company provides to the Cuporner fn the full We subject te the terms of this Apeanent, as so emended. This Agreement Cadsot be changed except by a writing that both the Customer and the Comperty sign. - If any provision of this Agreement is found to be invalid, the remaining provisions we aM effectivs. The word `Including' means 'including without limitation.' Exempt for monrto$hg, the Company wiR only do work during The Company's normal business hours of 9:00 a.m. to 5:00 P.m- On weekdays, exckndirg holidays the Company observes. AI schedules and ettaclvremts tee s part of this Agreement. 4F,Kh "C' t 14 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Quality Builders Warranty Corp. No. 07-3512 Plaintiff, CIVIL TERM V. Zeplin's Security Group, Inc., Defendant AND NOW, this 2008, upon consideration of Defendant's Motion for Partial Summary Judgment, as well as all argument and opposition by the parties, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that said Motion is and be GRANTED, and that Plaintiff's claims are limited to the sum of $360.00. BY THE COURT: ORDER OF COURT day of J. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served on the following counsel of record by first class U.S. mail, postage pre-paid, or by hand delivery, this 4th day of December, 2008: John A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (Counsel for Plaintiff) WAYMAN, IRVIN & McAULEY, LLC x c"y rn 9 .: ''' Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY CORP., CIVIL DIVISION Plaintiff, VS. ZEPLIN' S SECURITY GROUP, INC., No. 07-3512 Defendants. PRAECIPE FOR LISTING CASE FOR ARGUMENT Filed on behalf of: Defendant Counsel of Record for these Parties: James W. Creenan, Esquire Pa. I.D. #79213 WAYMAN, IRVIN & MCAULEY, LLC Firm #583 Suite 1624 Frick Building Pittsburgh PA 15219 Telephone No.: (412) 566-2970 Facsimile No.: (412) 391-1464 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) QUALITY BUILDERS WARRANTY CORP., VS. No. 3512 2007 Term State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Summary Judgment ZEPLIN'S SECURITY GROUP, INC., 2. Identify all counsel who will argue cases: (a) for plaintiffs: John A. Gill, 325 North Second Street, Wormleysburg, PA 17043 (Name and Address) (b) for defendants: James W. Creenan and Ian Walchesky, 1624 Frick Bldg., 437 Grant Street (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 4, 2009 Date. DPrPmber 4, 2008 Print your name ' James W. Creenan, Esquire Defendant Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case Is relisted. ra „ _ OD IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY CORP., CIVIL DIVISION Plaintiff, VS. No. 07-3512 ZEPLIN'S SECURITY GROUP, INC., Defendants. PETITION FOR APPOINTMENT OF ARBITRATORS Filed on behalf of. Defendant Counsel of Record for these Parties: James W. Creenan, Esquire Pa. I.D. #79213 WAYMAN, IRVIN & MCAULEY, LLC Firm #583 Suite 1624 Frick Building Pittsburgh PA 15219 Telephone No.: (412) 566-2970 Facsimile No.: (412) 391-1464 QUALITY BUILDERS WARRANTY CORP., Plaintiff V. ZEPLIN'S SECURITY GROUP, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-3512 20 Defendant. RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: James W. Creenan, Esquire counsel for the *"ff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ 1, 940.00 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Richard Wagner, Bryan McQuillan, John Gill, Jar:es Creenan, and Ian Walchesky WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respec bmitted, ?RM,Q ?=rL?n?r41J ORD O COURT AND NOW, , 200____, in consideration of the foregoing petition, Esq., and Esa.. and _ Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. By the Court, EDGAR B. BAYLEY P t TT X- R' $ 9, D r-o r7l C r mss; '' a_i ?1 QUALITY BUILDERS WARRANTY CORP., V. Plaintiff ZEPLIN'S SECURITY GROUP, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . NO. 07-3512 20 Defendant. RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: James W. Creenan, Esquire , counsel for the Wflff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ 1,940.00 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Richard Wagner, Brvan McOuillan. John Gill, James Creenan, and Ian Walcheskv WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respec bm.tted, ??l?.Q Lrz?N?l ORD O COURT AND NOW, AM Qjl, 1 Pj , 200 _AL_, in consideration of the foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators in the abov captioned igion (or actions) as prayed for. Court, " 'EDGAR B. BAYLEY q C? T9 1 LS LYE.. ?? i~ C.0. Lli ? F L J ° 8L CQ O ° Z:) cy cli QUALITY BUILDERS WARRANTY, CORP., PLAINTIFF V. ZEPLIN'S SECURITY GROUP, INC., DEFENDANT COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 07-3512 CIVIL TERM ORDER OF COURT AND NOW, this 0,4 day of February, 2009, the appointment of John R. Ninosky, Esquire, to the Board of Arbitrators in the above-captioned case, IS VACATED. Lorin A. Snyder, Esquire, is appointed in his place. By the. ZR. Mark Thomas, Esquire Chairman .i Lorin A. Snyder, Esquire ohn R. Ninoksy, Esquire Edgar B. t? ?? ? ES /K.5 t l?C a??,?ag Court Administrator fY? l? :sal A, t P r j.. ? ?. ? ? • (" ? ? i !: ,, ti,! ? ? ?? t ' ??.? N %?w . ? ± ;?r . , i ? ?? F..?' Y , ? ?? 1,..3 L ?', QUALITY BUILDERS WARRANTY IN THE COURT OF COMMON PLEAS OF CORPORATION, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. ZEPLIN'S SECURITY GROUP INC., : DEFENDANT : NO. 07-3512 CIVIL IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY, J., AND EBERT, J. ORDER OF COURT AND NOW, this 6th day of February, 2009, upon consideration of Plaintiff's Motion for Summary Judgment and Defendant's Motion for Summary Judgment and after argument; IT IS HEREBY ORDERED AND DIRECTED that: 1. Plaintiff's Motion for Summary Judgment is DENIED. 2. Defendant's Motion for Summary Judgment is DENIED. IT IS FURTHER ORDERED AND DIRECTED that this case shall proceed to the arbitration hearing currently scheduled for March 17, 2009, at 1:30 p.m. By the Court, X* M. L. Ebert, J-?, ?4 k r., J. ohn A. Gill, Esquire Attorney for Plaintiff 325 North Second Street Wormleysburg, PA 17043 as nes W. Creenan, Esquire Ian C. Walchesky, Esquire Suite 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219 //R. Mark Thomas, Esquire Chairman, Board of Arbitrators bas QUALITY BUILDERS WARRANTY, CORPORATION, PLAINTIFF V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ZEPLIN'S SECURITY GROUP, INC., DEFENDANT 07-3512 CIVIL TERN ORDER OF COURT AND NOW, this day of March, 2009, the appointment of a Board of Arbitrators in the above-captioned case, IS VACATED. R. Mark Thomas, Esquire, Chairman, shall be paid the sum of $50.00. By R. Mark Thomas, Esquire Court Administrator :sal Tr 3/f11Of Edgar 9. Bbyley, J. >- crs cvt CEO, j • QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff • FMMMNOTARY OF 71 1010 FEB -4 PM 4: 11 CUMJE:ii4`0 VVVIY! PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 07-3512 V. ZEPLIN' S SECURITY GROUP, INC Defendant To The Prothonotary CIVIL ACTION PRAECIPE Please mark the above captioned action as "settled, discontinued and forever ended." Gill, Es q. Attorney for Plaintiff Quality Builders Warranty Corp. 325 N. Second Street Wormleysburg, PA 17043 (717) 737-2522