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Home My WebLink About07-4204 r~ ARONSON ASSOCIATES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. NO. D7- ~a0~{ Civi ( ~~.rm THOMAS E. ZIMMERMAN, JR. Defendant. CIVIL ACTION -LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appeazance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 131862.5 7/16/07 .r • AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguien paginas tes, debe tomar accion dentro los proximo viente (20) dias despues de la notification de esta Demanda y Aviso radicando personalmente o por medio de un abagado una comparecencia escrita y radicando en la Corta por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion Como se describe anteriomente, el caso puede proceder sin usted y fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por demandante puede ser dictato en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes pars usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 131862.5 7/16/07 ' . ARONSON ASSOCIATES, INC. Plaintiff, v. THOMAS E. ZIMMERMAN, JR. Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. b~• yaoy CIVIL ACTION -LAW COMPLAINT Plaintiff, Aronson Associates, Inc., by and through its attorneys, SA UL EW/NG LLP, files this complaint against Defendant Thomas E. Zimmerman, Jr., and in support thereof avers the following: Parties 1. Plaintiff Aronson Associates, Inc. ("Aronson"), is a Pennsylvania corporation with its principal place of business at 3798 Paxton Street, Harrisburg, Pennsylvania 17105. 2. Upon information and belief, Defendant Thomas E. Zimmerman, Jr. ("Zimmerman"), is an adult individual, currently residing at 46 North Eighth Street, Lemoyne, Pennsylvania, 17043. Facts Common to All Counts 3. Upon information and belief, at all times relevant hereto, Zimmerman owned and operated a gasoline service station business located at 407 North 21St Street, Camp Hill, Pennsylvania 17011 (the "Station") 131862.5 7/16/07 4. On or about May 27, 1993, the parties entered into a Memorandum of Understanding (the "Agreement"), which was in force at all times pertinent to this action. A true and correct copy of the Agreement is attached hereto as Exhibit A. 5. The purpose of the Agreement was to record the terms and conditions under which Aronson would provide gasoline and diesel fuel to Zimmerman and advance Zimmerman money toward the purchase of equipment to be used at the Station. 6. The term of the Agreement commenced on May 27, 1993, "for an initial period of ten (10) years, with [Aronson] having a one (1) ten-year option to renew the Agreement upon the same terms and conditions." Exhibit A, Agreement at ¶ 1. 7. Following expiration of the Agreement, the parties continued to do business on the same terms as set forth by the Agreement. 8. Pursuant to paragraph five (5) of the Agreement, Aronson advanced money to Zimmerman to finance certain improvements at the Station. See id. at ¶ 5. 9. Under the Agreement, Zimmerman was to repay Aronson at a rate of 10% per year on the original dollar amount plus interest at the prime rate plus 1 %. See id. 10. Pursuant to paragraph 13 of the Agreement, the parties agreed that if the Agreement should terminate prior to its normal expiration, Zimmerman would continue to pay Aronson for sums advanced by Aronson and not recovered prior to such termination. See id. at ¶ 13. 11. Despite demand by Aronson, Zimmerman failed to make full repayment to Aronson as required after the termination of the Agreement. 12. The total amount owed by Zimmerman to Aronson based on advances made under the Agreement is $175,974.82. 131862.5 7/16/07 13. Pursuant to the Agreement, Aronson sold gasoline to Zimmerman on credit. 14. Despite demand, Zimmerman has failed to fully repay Aronson for gasoline purchased on credit under the Agreement. 15. The total amount owed by Zimmerman to Aronson for gasoline purchased under the Agreement is $16,924.78. 16. As of the date of the filing of this action, Zimmerman is obligated to pay Aronson a total of $192,899.60 under the Agreement. COUNTI (Breach of Contract) 17. Plaintiff incorporates the preceding paragraphs as if set forth fully herein. 18. The Agreement is valid and legally binding on Aronson and Zimmerman. 19. Aronson has fully performed all its obligations under the Agreement. 20. All conditions precedent to Defendant's payment obligation arising under the Agreement have been satisfied and/or excused. 21. Defendant has failed to fulfill his obligation to make repayment to Aronson under the terms of the legally binding Agreement. 22. Defendant's failure to make such repayment constitutes a material breach of the Agreement. 23. As a direct and proximate result of Defendant's breach, Aronson has incurred $192,899.60 in damages. WHEREFORE, Plaintiff, Aronson Associates, Inc., respectfully requests this Court enter judgment in its favor and against Zimmerman, awarding compensatory damages, 131862.5 7/16/07 together with interest and costs, including reasonable attorneys' fees and expenses, as allowable by law, and such further relief as this Court deems just and appropriate. COUNT II (Quantum Meruit) 24. Plaintiff incorporates the preceding paragraphs as if set forth fully herein. 25. Plaintiff pleads the within cause of action in the alternative. 26. By selling gasoline to Defendant on credit and advancing money to Defendant under the Agreement, Plaintiff conferred upon Defendant a valuable benefit in the amount of $192,899.60. 27. Defendant accepted the benefit conferred by Plaintiff. 28. Despite Plaintiff's demands for payment, Defendant has failed or refused to pay Plaintiff the reasonable value of the benefit. 29. It would be inequitable and unjust for Defendant to retain the value of the benefit without payment to Plaintiff. WHEREFORE, Plaintiff, Aronson Associates, Inc., respectfully requests this Court enter judgment in its favor and against Zimmerman, awarding compensatory damages, together with interest and costs, including reasonable attorneys' fees and expenses, as allowable by law, and such further relief as this Court deems just and appropriate. 131862.5 7/16/07 Respectfully submitted, ~obert J. Bn, Esquire Audrey J. ly, Esquire Attorney I.D. Nos. 77941 203659 Saul Ewing LLP Penn National Insurance Building, 7`h Floor Two North Second Street Harrisburg, PA 17101 DATE: July 16, 2007 131862.5 7/16/07 r VERIFICATION I verify that the statements made in the foregoing document , of which I have first hand knowledge, are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. ~~-- s Raphael Aronson President, Aronson Associates, Inc. DATE: ~, I ~ I D ~ 131862.5 7/9/07 r .~ ~-, ~ ~ ~- ~ p ~ -~ ~ ~o a ~, ~ .. _ __ ~.. ~~ ~ ,, ~~~ ~ :~ SHERIFF'S RETURN - REGULAR CASE NO: 2007-04204 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ARONSON ASSOCIATES INC VS ZIMMERMAN THOMAS E JR SHAWN HARRISON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon 7TMMT:'RMAT~T TN(1MAC T? .TR the DEFENDANT at 1329:00 HOURS, on the 18th day of July 2007 at 46 NORTH EIGHTH STREET LEMOYNE, PA 17043 by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge //~~ f ~ 1~ f b? 4~. 18.00 15.36 .00 10.00 .00 ~ 43.36 Sworn and Subscibed to before me this day of , So Answers: ~~~~ .~ R. Thomas Kline 07/19/2007 SAUL EWING By: Deput Sheriff A.D. c ~ • ARONSON ASSOCIATES, INC. Plaintiff, v. THOMAS E. ZIMMERMAN, JR. Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 135306.1 8/22/07 ..r ~. AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguien paginas tes, debe tomar accion dentro los proximo viente (20) dias despues de la notification de esta Demanda y Aviso radicando personalmente o por medio de un abagado una comparecencia escrita y radicando en la Corta por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriomente, el caso puede proceder sin usted y fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por demandante puede ser dictato en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARR AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 135306.1 B/22/07 ARONSON ASSOCIATES, INC. Plaintiff, v. THOMAS E. ZIMMERMAN, JR. Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW FIRST AMENDED COMPLAINT Plaintiff, Aronson Associates, Inc., by and through its attorneys, SA UL EWlNG LLP, files this First Amended Complaint against Defendant Thomas E. Zimmerman, Jr., and in support thereof avers the following: Parties 1. Plaintiff Aronson Associates, Inc. ("Aronson"), is a Pennsylvania corporation with its principal place of business at 3798 Paxton Street, Harrisburg, Pennsylvania 17105. 2. Upon information and belief, Defendant Thomas E. Zimmerman, Jr. ("Zimmerman"), is an adult individual, currently residing at 46 North Eighth Street, Lemoyne, Pennsylvania, 17043. Facts Common to All Counts 3. Upon information and belief, at all times relevant hereto, Zimmerman owned and operated a gasoline service station business located at 407 North 21St Street, Camp Hill, Pennsylvania 17011 (the "Station"). 135306.1 8/22/07 4. On or about May 27, 1993, the parties entered into a Memorandum of Understanding (the "Agreement"), which was in force at all times pertinent to this action. A true and correct copy of the Agreement is attached hereto as Exhibit A. 5. The purpose of the Agreement was to record the terms and conditions under which Aronson would provide gasoline and diesel fuel to Zimmerman and advance Zimmerman money toward the purchase of equipment to be used at the Station. 6. The term of the Agreement commenced on May 27, 1993, "for an initial period often (10) years, with [Aronson] having a one (1) ten-year option to renew the Agreement upon the same terms and conditions." Exhibit A, Agreement at ¶ 1. 7. Following expiration of the Agreement, the parties continued to do business on the same terms as set forth by the Agreement. 8. Pursuant to paragraph five (5) of the Agreement, Aronson advanced money to Zimmerman to finance certain improvements at the Station. See id. at ¶ 5. 9. Under the Agreement, Zimmerman was to repay Aronson at a rate of 10% per year on the original dollar amount plus interest at the prime rate plus 1 %. See id. 10. Pursuant to paragraph 13 of the Agreement, the parties agreed that if the Agreement should terminate prior to its normal expiration, Zimmerman would continue to pay Aronson for sums advanced by Aronson and not recovered prior to such termination. See id. at ¶ 13. 11. Despite demand by Aronson, Zimmerman failed to make full repayment to Aronson as required after the termination of the Agreement. 12. The total amount owed by Zimmerman to Aronson based on advances made under the Agreement is $175,974.82. 135306.18/22/07 13. Pursuant to the Agreement, Aronson sold gasoline to Zimmerman on credit. 14. Despite demand, Zimmerman has failed to fully repay Aronson for gasoline purchased on credit under the Agreement. 15. The total amount owed by Zimmerman to Aronson for gasoline purchased under the Agreement is $16,924.78. 16. As of the date of the filing of this action, Zimmerman is obligated to pay Aronson a total of $192,899.60 under the Agreement. COUNTI (Breach of Contract) 17. Plaintiff incorporates the preceding paragraphs as if set forth fully herein. 18. The Agreement is valid and legally binding on Aronson and Zimmerman. 19. Aronson has fully performed all its obligations under the Agreement. 20. All conditions precedent to Defendant's payment obligation arising under the Agreement have been satisfied and/or excused. 21. Defendant has failed to fulfill his obligation to make repayment to Aronson under the terms of the legally binding Agreement. 22. Defendant's failure to make such repayment constitutes a material breach of the Agreement. 23. As a direct and proximate result of Defendant's breach, Aronson has incurred $192,899.60 in damages. WHEREFORE, Plaintiff, Aronson Associates, Inc., respectfully requests this Court enter judgment in its favor and against Zimmerman, awarding compensatory damages, 135306.1 S/22/07 together with interest and costs, including reasonable attorneys' fees and expenses, as allowable by law, and such further relief as this Court deems just and appropriate. COUNT II (Quantum Meruit) 24. Plaintiff incorporates the preceding paragraphs as if set forth fully herein. 25. Plaintiff pleads the within cause of action in the alternative. 26. By selling gasoline to Defendant on credit and advancing money to Defendant under the Agreement, Plaintiff conferred upon Defendant a valuable benefit in the amount of $192,899.60. 27. Defendant accepted the benefit conferred by Plaintiff. 28. Despite Plaintiff's demands for payment, Defendant has failed or refused to pay Plaintiff the reasonable value of the benefit. 29. It would be inequitable and unjust for Defendant to retain the value of the benefit without payment to Plaintiff. WHEREFORE, Plaintiff, Aronson Associates, Inc., respectfully requests this Court enter judgment in its favor and against Zimmerman, awazding compensatory damages, together with interest and costs, including reasonable attorneys' fees and expenses, as allowable by law, and such further relief as this Court deems just and appropriate. 135306.18!22/07 Respectfully submitted, Saul Ewing LLP Penn National Insurance Building, 7`h Floor Two North Second Street Harrisburg, PA 17101 DATE: August 22, 2007 135306.18/22/07 Attorney I.D. Nos. 77941 & 203659 VERIFICATION I verify that the statements made in the foregoing document , of which I have first hand knowledge, are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. s Raphael Aronson President, Aronson Associates, Inc. DATE: ~ ~ I la ~ D ~ 131862.5 7/9/07 CERTIFICATE OF SERVICE I, Veronica C. Biegen, hereby certify that I am this 22"d day of August, 2007, serving the foregoing Plaintiff's Amended Complaint upon the person listed below, indicated by the methods specified, which service satisfies the requirements of Pa.R.A.P. 121: Service via U.S. Mail Thomas E. Zimmerman, Jr. 46 N. Eighth Street Lemoyne, PA 17043 Veronica C. Biegen Saul Ewing, LLP Penn National Insurance Plaza 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 258-7657 Dated: August 22, 2007 • _ t. ~.. . ME)lORAHDUM GF UIiD6R5TAtiDIIIG • - - _1~FHEREAB, THO!!AS B. ZxtIKERMAN, JR. , (hereinafter call Operrator 1: .. •'. hap: -heea: operating -an Exxon Station along North Zlst Street, Ca~ap. E[i11,' ~ ; ~~-••..:-'"' -:- -- - - Cui~ibvrland -County, -Pennsylvania; and - ~ ~ - - -- - NHEREAS~ he has been subleasing thg loGatiott frow Ei(xon~ ; - - . - . Cvrporstton~ -but Cxxata is about to xithdrar (rata its inyolvetuent in this .. ~ - . ' • --service - station f and. - - ... . - . MHERBAS, he he~B apprasahad Arantaan Associates, Ina. , which ' - - trade>3t as Service Uil Catapeay (hereinafter referred to as ~Distributiar~) - - ~ to :solely. furnish ell gasoline, diesel fuel. sad Exxon taator nil far the . - ' location.; end - . -NHEREAS, Distributor is interested in doing so, but both- - ".-. parties recognize that special terms end conditions ere .going to -lteve - - to • >ypply -. 6tatweea7 theta far a nuvber of years. -- ~. - HOUI, THEREFORE, this Ne>acsranduta of Underttttanding is beitag- ' ' - --- executed to record the tests and conditions under which Distributor is: .- solos to by advancing ~aonies to Operator, in addition to furnishing gasoline, diesel fuel end Exxon wotor oil. -~ - .' - 1. Cotaeenaiag free sucA time as Exxon is out of the picture. -. -- . end flperetor is deAling directly with party xith wham Exxon had dealt, -. this- Agree>aent shall run for a period of ten (10) years, xith - Distributor having one (11 ten-year option to renew the Agreaa~ent upon the same terms and conditions, and the parties promiBe each other to enter into a writing eetabiiehing the exact dete- of coemencement. 2. Distributor agrees to aherge Operator for gasoline, '50.02 per gallon above Exxon'a~ posted reap price (tc~ include frQight and -. ~ .' Oiptributor • s' profit I at tiwe of del~,very. Also, in the event that . ~ - ~. t~iere. •ig ~ tirjr--~ ~chan9e in the freight post incurred by Distributor, - ~ • - - •Distribut.or -shell . have .the night to pass as his add:ltiai~al ocistet::.::. .•~ -~- - - Nbt.ifiaation of an)i ittCreasss of freight t~harges dur3ag the life. 6f 'khe - ~- " :.' cxintrsat ~ shall, b~ ih writing, and piRtributor shall provide Qpa!rator • -- .. . .: - ~rith~.proof of the freight charges ieusrettspd, upon hif! Mritten. request: - -:. - - . i 3. ~ In thR event llperstor exaeedfs average purchases of 150, fl00 -.~ - .- -. .gallotils pNt'- Montfi, then Distributor wilt reduce the prise per gallon of- ~ - - 9asbline~ charged to Operatox to B.Ole5 per Qallon back to yallan nuaber:- ,~ ~ one puraha~aed. Should Operator exceed average puraha~ta of 17~, 000 - • .gallants ,per• -south. ~ pistributor Mill layer the price per gallon to 8.0175 • - per gallon- back to_ gallon aftfe purchases. Increases in freight shall be ands in.. - eccordanrx - xith the teru~e and conditions as set -forth in - - - Paragraph -2.•." Ad~ust~nenta could b~+ cads at the end of each six-Month's -~ - cyeie. clad paid to Operator within fifteen t15) days after the alto of. - - .. ' - ~ . - ~4., . .Operator shall be executed to maintain at the Caap Hill - - -site , .~t ~aini~Mii+a -average monthly gasoline baQe level value of - 100, 000 - gallcros p¢r month. This gasoiiae base level value will be ,based upon - - . the sverdg~ nuwber of gasoline gallons purchased over a six (6) moa~th's period. In the-event gaAaiine purghwtses are leas than 100,000 ga-lldae per south, t)perwtor is to rei~-burae Distributor lip.0~ per gallon (rich this Sigure to be 1ldfusted in.anCOrdeaae with Paragraph 21 nn the nua~b8x of gallons by which purchases fall bplox 100,000 gallons per south. Qpprator shall be billed fc-r any difference in the gasoline 6ssa level 1 - .` _ " ~ ~vdiite , wt the titKd of •tiesh six t 6) sgtpth' i~t ayale, and such bill shall be -. ~~ ~: : psyalxle-= ti#tiipit (15) days after the date ai thr bill. ~ - - ' - - - ~S, .. OiRStr~,butor hee~ a0repd to advacae aerfiain• wonieir . ~o-~~=" - ~~ " -'.' `E~ferator, _ is order that he way acquire the building aYtd "cae~raN~r f7roi~" :::. '•; ~ • _ 'Triexo~, :ett'td Bey paxaheese thin exitstiag tanks and dispensing equi~a,ept~ or~ ~~_ . - ~- ~• .replace ~ aawe~ 'xith ae~t tanks and sew dispensing equipwbnt. Operator ~ ~ - - '- •. "s.~r:er i:hat ~ Distributor :hail be repaid et the rate o:E loX .pws' year ~ ori. ". ~- ~ -- ~. - ~ the ~' ariyitisl_ ~ dpll.er ewount edvanaed by distributor to Operetor~ .plus - • ~ i:ritereie~t at 'the pxi~ne rate plus 1X. A per-Qdlion ahar9e of #O. pl xouid~: - ~ -. ~:- - bie~`aifded to the delivered prise per gallon, and put towards the.rsrgvired .- _ - 10lG r4pay+aent . on principal esount advanced, pine iatQrest. If this . additional ~ -per-gallon charge exceeds tAe 10X ainiwuw p4~r:Rt~t _ .. ~ ' require~aent, *he excess eshall be rolled over end applied to the - - . " _ follarin~ .year wini~nuui .payment requiresent. Ia thE+ event payeents fell- . : be-~or ~ :the - lOX~' uiiniwu~n require~aert, Operator will be biiltrd far the ~ ' . - . - :differeiicc •t-. the and of esah yadr, and payment is to be cede by-..biro = ~.- - . -MiChin ~#ifteen~ (i5) days from the date of the billing. This atidi~tional • ' -- peg-pnl~tin . ah~rpe on gasoline would ter~ainate ottCe- .repaysent is , litade, to . ~ ~ ...-. ~ ~- .Distributor for .the original a~aount of wonE+y advenotd, plus icipterest - --~. - - ' ~ due. - ~ .. _ ~.. . " b. It is undgrstodd ar,d agreed that Operator shall puroheese - gasoline in lcaade at 9, 300 Balldn^ ar wore, and Op~rrator viii waiutw~.~n~ narual business houru Frith et weini~auM df twelve tl2) hours operstint~ prr day for the purpose of saintaining end keeping the station open during peek business hours. .... ~ . . . .. ~. ~.-, • . - 7. . in the e~ernt theft Exxon withdraws frow the Psnnsyivanii- . ". ~ ": ' • ~ ~aarket 4nd .Eer~ricQ Oil Cc+»pany is ably to supply Operator with another . • • -- " ,~a~'snd; O~,ierstar~' agrees to eaoept the alternate brand under" thee.•.wiiw~.="-" ' •tt~eiiis°and~ conditions. in the etaetnt that Distributor is unable tn:ttupply ~ : ~ " - -~ Eececots- ~aeiol~.ne~ - to Operstar for any period of tiwe, Operete~r shell. lie ~ " . • • abler fa.purohi~se his Exxon gasoline and diesel fuel elsewhere gntii~eriich~•;.::.'~.: .' • .tine es Diestaributor is able to fill hie needs. In the • event that=. a -~ "_ ~: :' .. .. •"-.. peti?nleuw. shortage: oacsurs and govetrnmant irit~trvQntian or regulation :is•.'~•. ' . _ ~_.- .• - = iiiposed; Operator would be Supplied his proportion of gde~line baud . ~ - . "-~" "upon thegovernment regulations end Exxon's supply allocutions. ~ ~ " . ~ ~ 8. .All coatet for teaintenanee and/or repair to pvw-ps." . . • equipment'or Exxon 119hting Shgil be the responsibility of"Operator. ~ . - = 9. 'All Exxon Charges for sign rtnt, credit eserds~ pirinter ~~ ~ •' :~ :feee~ ar ot2~er .charges regaired by Exxon for dealer location shall be _ pgased on at the Bane cost by DiBtributtor to Operator. .~ .. • ~ 10. Operator shall coeApiy with ail Exxon itl0 require!w~etrtei •emd;:: ~" .. - ... ~ EPl1: -and DER regulations during the tiu~e that this Agreement ie in-_ ~ -• " • effect: ~ ~ ~. . " : _ • - li. If OpQxator converts from his use of natural gee ~: for • ~ "; heeitipg and uses fuel ail, this fuel oil shall be purchased from . . pl.utrits~stor at Se0.03 per gallon belox 3t:~r regular retail posted price .. . et tieee of delivery. All Exxon orator ail shall be purchased from. Distributor eeo long as the aotor oil product does nut exaee!d regular mprket prices. -- -- -- ' - 12.• . Paraent for gasoline or diesel deliverleet iet td 6t wader ~ - - irY:~him -'ten• ~R 1Q S ~ days from the time of delivery or - before thr. -ne.~it `. ' , _; .=~ :" = . .. - " -~.~: • .Irt the evesst that this AQreeaient le terwiaatrd befdrr ifs - - - .- narm~sl .expiration dates by aithar party hereto, it is ynderetaod •aiid- - = - -. ' bgreed. -thn~t'.Operato~r dball pt~p Distributor suc=h sums as Distributor deb -:. ' ' ~ - - .: ~ adiranced ".arid -ha~e not reravQrRd fvr the equipment, and that the prise: to - - ba ~ paid by Qpar~tar to Aistributor shall fallow the farmule set.~fartb ~~ - - i-n' -'Paragraph S hereof. Should Operator pay biatxibuto~r ds~ provided - - under"Paragraph S. any liens planed an the equipment for Distributor's behefit eshall ~bp removed. - = - . - •• ~ ~~ 14.~ - da girt' inducement to Oistributor to tnteac it-tn this" - - ~ -~- Agr~tt-t~Q»t, ~ Qperat-ar agrees to execute a collateral assignwe~tL of hig. . -laaQe- Mith ~ 'hie.. 1*?ttsor and also to sign a security agreembt~t and -, -^ financial etatemeitts, to coven- equipment, inventory and ottier_ i£tws at . = ~the'ststion. -Additionally, Operator shall furnish proof of and maintain:. - - • 'thr-QUQ~sosit this ~A9reement liability insurance apverage, : protecting ~lii~a - - - --~-.end piatributor against any Gla3ta for liability based upon inf•ury'.to - . parsons air .;irgp4rty groring out of the use of the tlub~ect loastiitxh. - ' - - -. 'Such: ineuranae~ sehall be in an amount of at least X500, 000.00 far 'infury - ~ -~ or dpnkh to os~e person, and in an amaunt of at lraset 91, 000, 000.-QO. for in~urp or death to mare than one pereox-, and is the amount of 9200, 000.00 for property damage. 15. Any nntica required hereunto to be given or served by piatributor on Operator eheli be deemed served if sent by bietril~utor tb him by f irst--claps wail, poetnge prepaid,. to the ioaation, Mith copy _ ~- - • . ~' - ~ - - •- ZOO. . In the event of defeult or under arty other tsituation in •• - - titrich':Diatributnr herein aey have rights against Operator; it •is tiprt#ed : .: ••'•' is_ad• ~dQrstoSid- .by Distributor thak those riQht~t shell ~ only- • appijr.. to •-- • • •. ;; .: rescovery_ egainet• the assets of the eerviar stgtioa attd not egainst•_ dn~.•-~ ~~ • . - .~: .. - ... .. :' a~tejete pvned by .Opers~tor 4n his oxts nase~ or sssets in tht name pf.•:- •. • • ;Ope7c-etor. and ~•his trife, or assets rutted 6y the estate of Operator.-. • . ~ : . •~ • ; - - - - -;Iti WITNESS MNEREOF, Operator and Distributor have here~tttto• ~ ~• :. • .ex~~ed- this ttei~nrandua of ilnd4trstandlttg as of the ~? day of~ -• • •- .~ _ •aytiw- •• _ -•• _ ,~i~i, 1993, ~ritb fittettt to be ltgally bound hereby. •• -. . Thvwes E. ZitRSe:~ tiestt, Jr. - • -.. - ~ ARtlNSUN ABSOCIATE3, INC. t1a SERVY~S- . - - CIIL COMPANY - - - °- - - - - - - • • - 9 ire ~:el S. onsoh - - -Preesidan~t •- , P . i Audrey J. Daly, Esquire Atty. I.D. No. 203659 Saul Ewing LLP 2 N. Second Street, 7th Floor Harrisburg, PA 17101 717-257-7579 (ph) Attorneys for Plaintiff Aronson Associates, Inc. IN THE COURT OF COMMON PLEAS ARONSON ASSOCIATES, INC. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v, N0.07-4204 Civil Term THOMAS E. ZIMMERMAN, JR. CIVIL ACTION -LAW Defendant. PRAECIPE FOR ENTRY OF DEFAULT JUDGMENT TO THE PROTHONOTARY: Please enter judgment in the above-captioned case in the form attached hereto, pursuant to Pa. R. Civ. P. 1037 for defendant's failure to file a pleading to the Complaint, which contained a notice to defend, in the amount of $192,899.60, together with pre judgment interest from July 16, 2007, post-judgment interest, filing fees of $78.50 and Sheriffs costs of $43.36. The above-captioned case was commenced by a Complaint, filed by Plaintiff with this Court on July 17, 2007. A true and correct copy of the Complaint and the Sheriff s Return showing service upon the Defendant on July 18, 2007 is attached hereto as Exhibit "A". The undersigned hereby certifies that a written Notice of Intention to Take Default Judgment was served pursuant to Pa. R. Civ. P. 237.1 more than ten days prior to the filing of this Praecipe. A true and correct copy of the Notice of Intention to Take Default Judgment is attached hereto as Exhibit "B". 136912.1 10/31/07 Audrey J. ly, Esquire Atty. I.D. .203659 Saul Ewing LLP 2 N. Second Street, 7`" Floor Harrisburg, PA 17101 717-257-7579 (ph) Dated: November 1, 2007 Attorneys for Plaintiff Aronson Associates, Inc. 1369] 2.1 10/31 /07 CERTIFICATE OF SERVICE I, Audrey J. Daly, attorney for Plaintiff Aronson Associates, Inc., do hereby certify that on this 1st day of November, 2007, I served a true and correct copy of the foregoing Praecipe for Entry of Default Judgment by U.S. First Class Mail, postage prepaid, addressed as follows: Thomas E. Zimmerman, Jr. 46 North Eighth Street Lemoyne, PA 17043 udrey J. D 136912.1 10(31(07 Audrey J. Daly, Esquire Atty. I.D. No. 203659 Saul Ewing LLP 2 N. Second Street, 7tn Floor Harrisburg, PA 17101 717-257-7579 (ph) Attorneys for Plaintiff Aronson Associates, Inc. IN THE COURT OF COMMON PLEAS ARONSON ASSOCIATES, INC. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v, ; N0.07-4204 Civil Term THOMAS E. ZIMMERMAN, JR. . CIVIL ACTION --LAW Defendant. NOTICE OF ENTRY OF JUDGMENT NOTICE IS HEREBY GIVEN in accordance with Pa. R. Civ. P. 236 that a Judgment in the above-captioned matter has been entered against you in the amount of $192,899.60, together with pre judgment interest from July 16, 2007, post judgment interest, filing fees and Sheriff s costs. ~s/ Prothonotary If you have any questions regarding this Notice, please contact: Audrey J. Daly, Esquire Saul Ewing LLP 2 N. Second Street, 7th Floor Harrisburg, PA 17101 717-257-7579 (ph) Notice Sent To: Thomas E. Zimmerman, Jr. 46 North Eighth Street Lemoyne, PA 17043 136912.1 ]0/31107 Audrey J. Daly, Esquire Atty. I.D. No. 203659 Saul Ewing LLP 2 N. Second Street, 7th Floor Harrisburg, PA 17101 717-257-7579 (ph) Attorneys for Plaintiff Aronson Associates, Inc. ARONSON ASSOCIATES, INC. Plaintiff, v. . THOMAS E. ZIMMERMAN, JR. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA N0.07-4204 Civil Term CIVIL ACTION -LAW Defendant. JUDGMENT IT IS HEREBY ORDERED that Judgment is entered in favor of Aronson Associates, Inc. and against Thomas E. Zimmerman, Jr., in the amount of $192,899.60, together with pre judgment interest from July 16, 2007, post judgment interest, filing fees and Sheriff s costs. l 369 ] 2.1 10/31 /07 ARONSON ASSOCIATES, INC. Plaintiff, v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. O']' - ~ao~f 1. ~ v i t ~e rn+ THOMAS E. ZIMMERMAN, JR. CIVIL ACTION -LAW Y-~ ,°`~ ~-- Defendant. - _ "~` . - . ~_ -.+ NOTICE ~_ - ~.~ PJ .{ (\? 1 YOU HAVE BEEN SUED IN COURT. If you wish to defend against the clairris seT' -~,,-~- -; _~ ~_ =;+ ~.' :a ~. )ti7 --1 ::17 "`'~ forth in the following pages, you must take action within twenty (20} days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 131862.5 7/16/07 4. On or about May 27, 1993, the parties entered into a Memorandum of Understanding (the "Agreement"), which was in force at all times pertinent to this action. A true and correct copy of the Agreement is attached hereto as Exhibit A. 5. The purpose of the Agreement was to record the terms and conditions under which Aronson would provide gasoline and diesel fuel to Zimmerman and advance Zimmerman money towazd the purchase of equipment to be used at the Station. 6. The term of the Agreement commenced on May 27, 1993, "for an initial period of ten (10} years, with [Aronson] having a one (1 }ten-year option to renew the Agreement upon the same terms and conditions." Exhibit A, Agreement at ¶ 1. 7. Following expiration of the Agreement, the parties continued to do business on the same terms as set forth by the Agreement. 8. Pursuant to paragraph five (5) of the Agreement, Aronson advanced money to Zimmerman to finance certain improvements at the Station. See id. at ¶ 5. 9. Under the Agreement, Zimmerman was to repay Aronson at a rate of 10% per year on the original dollar amount plus interest at the prime rate plus l %. See id. 10. Pursuant to paragraph 13 of the Agreement, the parties agreed that if the Agreement should terminate prior to its normal expiration, Zimmerman would continue to pay Aronson for sums advanced by Aronson and not recovered prior to such termination. See id. at ~ l3. 11. Despite demand by Aronson, Zimmerman failed to make full repayment to Aronson as required after the termination of the Agreement. 12. The total amount owed by Zimmerman to Aronson based on advances made under the Agreement is $175,974.82. 131862.5 7/16/07 13. Pursuant to the Agreement, Aronson sold gasoline to Zimmerman on credit. 14. Despite demand, Zimmerman has failed to fully repay Aronson for gasoline purchased on credit under the Agreement. 15. The total amount owed by Zimmerman to Aronson for gasoline purchased under the Agreement is $16,924.78. 16. As of the date of the filing of this action, Zimmerman is obligated to pay Aronson a total of $192,899.60 under the Agreement. COUNTI (Breach of Contract) 17. Plaintiff incorporates the preceding paragraphs as if set forth fully herein. l g. The Agreement is valid and legally binding on Aronson and Zimmerman- 19. Aronson has fully performed all its obligations under the Agreement. 20. All conditions precedent to Defendant's payment obligation arising under the Agreement have been satisfied and/or excused. 21. Defendant has failed to fulfill his obligation to make repayment to Aronson under the terms of the legally binding Agreement. 22. Defendant's failure to make such repayment constitutes a material breach of the Agreement. 23. As a direct and proximate result of Defendant's breach, Aronson has incurred $192,899.60 in damages. WHEREFORE, Plaintiff, Aronson Associates, Inc., respectfully requests this Court enter judgment in its favor and against Zimmerman, awarding compensatory damages, 131862.5 7/16/07 together with interest and costs, including reasonable attorneys' fees and expenses, as allowable by law, and such further relief as this Court deems just and appropriate. COUNT II (Quantum Meruit} 24. Plaintiff incorporates the preceding paragraphs as if set forth fully herein. 25. Plaintiff pleads the within cause of action in the alternative. 26. By selling gasoline to Defendant on credit and advancing money to Defendant under the Agreement, Plaintiff conferred upon Defendant a valuable benefit in the amount of $ 192,899.60. 27. Defendant accepted the benefit conferred by Plaintiff. 28. Despite Plaintiffs demands for payment, Defendant has failed or refused to pay Plaintiff the reasonable value of the benefit. 29. It would be inequitable and unjust for Defendant to retain the value of the benefit without payment to Plaintiff. WHEREFORE, Plaintiff, Aronson Associates, Inc., respectfully requests this Court enter judgment in its favor and against Zimmerman, awarding compensatory damages, together with interest and costs, including reasonable attorneys' fees and expenses, as allowable by law, and such further relief as this Court deems just and appropriate. 131862. S 7! 16!07 Respectfully submitted, ~obert J. B n, Esquire Audrey J. ly, Esquire Attorney I.D. Nos. 77941 203659 Saul Ewing LLP Penn National Insurance Building, 7`'' Floor Two North Second Street Harrisburg, PA 17101 DATE: July 16, 2007 131862.5 7! 16/07 SHERIFF'S RETURN - REGULAR ' CASE N0: 2007-04204 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ARONSON ASSOCIATES INC VS ZIMMERMAN THOMAS E JR SHAWN HARRTSON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE 7,7NIMERMAN THOMAS E JR was served upon the DEFENDANT at 1329:00 HOURS, on the 18th day of July , 2007 at 46 NORTH EIGHTH STREET LEMOYNE, PA 17043 DAVID ZIMMERMAN by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 15.36 Affidavit .00 Surcharge 10.00 .00 43.36 Sworn and Subscibed to before me this day So Answers: .~~ .~ R. Thomas Kline 07/19/2007 SAUL EWING ..... By: Depu erif f of A.D. Audrey J. Daly, Esquire Atty. I.D. No. 203659 Saul Ewing LLP 2 N. Second Street, 7th Floor Harrisburg, PA 17101 717-257-7579 (ph) Attorneys for Plaintiff Aronson Associates, Inc. ARONSON ASSOCIATES, INC. . Plaintiff, . v. THOMAS E. ZIMMERMAN, JR. . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA N0.07-4204 Civil Term CIVIL ACTION -LAW Defendant. To: Thomas E. Zimmerman, Jr. 46 N. Eighth Street Lemoyne, PA 17043 Date of Notice: October 1 S, 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 JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH 13G602J 1D/!8/07 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 Cazlisle, PA 17013 Telephone No. (717) 249-3166 Respectfully submitted, Audrey J. aly, Esquir Atty. I.D. 0.203659 Saul Ewing LLP 2 N. Second Street, 7~' Floor Harrisburg, PA 17101 717-257-7579 (ph) Dated: October 18, 2007 Attorneys for Plaintiff Aronson Associates, Inc. i3~oz.- ~aiaro~ -2- CERTIFICATE OF SERVICE I hereby certify that on October 18, 2007, I served a true and correct copy of the foregoing IMPORTANT NOTICE upon the following party by registered, first class mail, postage prepaid: Thomas E. Zimmerman, Jr. 46 North Eighth Street Lemoyne, PA 17043 udrey J. aly, Esqui Dated: October 18, 2007 r""1 N c_.~ ~ ~ ~:a ^t1 _..,~ ~:~ ~`'~ ~ , t ~ ^K,~. ~` d '- ; TS ~s ~`~ N ~ c~ UNITED STATES BANKRUPTCY COURT FOR TIFIE MIDDLE DISTRICT OF PENNSYLVANIA IN RE: THOMAS E. ZIMMERMAN, JR. f/d/b/a ZIMMERMAN' S EXXON LAURIE M. ZIMMERMAN Debtors THOMAS E. ZIMMERMAN, JR. Movant v. ARONSON A5SOCIATES, INC. Respondent IN BANKRUPTCY BK. NO. 1-07-bk-03763 RNO CHAPTER 7 PROCEEDING LIEN AVOIDANCE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0.07- 4204 Civil Term ORDER OF COURT VOIDING JUDICIAL LIEN In consideration of the within Amended Motion for Order Avoiding Judicial Lien, filed by Counsel for the DebtorslMovant, the Court finds the Respondent has failed to file an Answer or otherwise plead. to the Amended Motion for an Order Avoiding Judicial Lien filed on December 21, 2007, and duly served upon the Respondent; therefore, the Court orders judgment in favor of the Debtors/Movant, Thomas E. Zimmerman, Jr., and against the Respondent, Aronson Associates, Inc., as to the relief requested in the Motion. IT IS HEREBY ORDERED, adjudged and decreed that the judgment lien held by the Respondent, is hereby declared void in its entirety and of no further force and effect as it violates 11 U.S.C. Section 522(fj(1) and interferes with 11 U.S.C. Section 522(d). By the Court, ~~~ ~Y Dated: January 4, 2008 RAbert T~. ,,, u BuF~Y 3>e ~~ Thirctoc~unent:.vefectrunrrr~~tystgrred azrad~led an thesam¢ dt~te. ~~ !;E:~Ti~iED 1'Rfi~'s',tt Thy Fi~COl~D this 7- `,~ , ~')t T e~ ~~.. ~` s ~..,,. , sy.~.R` y-~ K ~_ ..... .... l.1 ~: ~... . r~ ~..~ - ~ <: ~=~ ''' i ~ oa, ~ ,~ ~, -- te ~ -p _ . . a b `~'~ -., ~~ ~ . `r, 4 ~~'