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HomeMy WebLinkAbout07-4590FORKLIFTS, INC., v. IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA IFCO SYSTEMS PENNSYLVANIA, INC., Defendant CASE NO. 07- H5~10 C~~i(~5--~ 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 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 maybe 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, 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 S. Bedford Street Carlisle, PA 17103 Telephone (717) 249-3166 or 1-800-990-9108 AVISO Usted ha sido demandado en el tribunal. Si usted desea defender contra los reclamos expuso en las paginas siguientes, usted debe tomaz medidas dentro de veinte (20) dias despues que esta queja y la nota se sirven, entrando una apariencia escriben personalmente o por abogado y archivando en la escritura con el tribunal sus defensas o las objecciones a los reclamos exponen contra usted. Usted es advertido que si usted falla de hacer asi que el caso pueda avanzaz sin usted y un juicio puede ser entrado contra usted por el tribunal sin nota adicional paza cualquier dinero reclamado en la queja o paza cualquier otro reclamo o el alivio solicitados por el demandante. Usted puede perder dinero o propiedad u otros derechos importantes a usted. LISTED LE DEBE TOMAR ESTE PAPEL A SU ABOGADO INMEDIATAMENTE. SI LISTED no TIENE a UN ABOGADO, VA A O TELEFONEA LA OFICINA EXPUSO ABAJO. ESTA OFICINA LO PUEDE PROPORCIONAR CON INFORMACION ACERCA DE EMPLEAR a UN ABOGADO. SI LISTED no PUEDE PROPORCIONAR paza EMPLEAR UN ABOGADO, ESTE MAYO de la OFICINA ES CAPAZ de PROPORCIONARLO CON INFORMACION ACERCA DE las AGENCIAS que ESE MAYO OFRECE los SERVICIOS LEGALES A PERSONAS ELEGIBLES EN UN HONORARIO REDUCIDO O ningun HONORARIO. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17103 Telephone (717) 249-3166 or 1-800-990-9108 Clayton W. Davidson, Esquire PA Attorney I.D. # 79139 McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 (phone) (717)-260-1678 (direct fax) cavidson@mwn.com Attorneys for Forklifts, Inc. FORKLIFTS, INC., IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v CASE NO. 07_ Y~ 90 ~~ ~~ IFCO SYSTEMS PENNSYLVANIA, INC., Defendant :CIVIL ACTION -LAW COMPLAINT Forklifts, Inc., by and through its undersigned counsel, hereby files this Complaint against IFCO Systems Pennsylvania, Inc. and in support thereof avers the following: The Parties 1. Plaintiff, Forklifts, Inc. ("Forklifts"), is a Pennsylvania business corporation doing business at 741 Independence Avenue, Mechanicsburg, Pennsylvania, 17055. 2. Defendant, IFCO Systems Pennsylvania, Inc. ("IFCO"), is a Delawaze corporation doing business at 3177 Biglerville Road, Biglerville, Pennsylvania, 17307. Jurisdiction and Venue 3. This Court has jurisdiction over this matter this matter pursuant to 42 Pa.C.S.A. §931(a) as a result of IFCO routinely conducting business in Pennsylvania and its written contract with Forklifts as described herein. 4. This Court is the proper venue for this matter pursuant to 42 Pa.C.S.A. §931(c) and Pa.R.C.P. No. 1006 because a transaction or occurrence out of which the cause of action(s) arise took place in Cumberland County, Pennsylvania. Factual Background 5. On October 12, 2000, Forklifts leased a Nissan forklift to IFCO pursuant to the terms and conditions contained in a written rental agreement (the "First Rental Agreement") between the parties. Attached hereto as Exhibit A and incorporated herein by reference is a true and correct copy of the First Rental Agreement. 6. On February 3, 2004, Forklifts leased two Nissan forklifts to IFCO pursuant to the terms contained in a written rental agreement (the "Second Rental Agreement") between the parties. Attached hereto as Exhibit B and incorporated herein by reference is a true and correct copy of the Second Rental Agreement. 7. IFCO has recently returned the three forklifts it leased from Forklifts under the First Rental Agreement and the Second Rental Agreement (collectively the "Agreements") in a state of almost total disrepair. IFCO has improperly used and abused the three forklifts. 9. Forklifts has incurred $17,078.18 in damages to repair the three forklifts to good working condition. Attached hereto as Exhibit C and incorporated herein by reference is a summary of the charges needed to properly repair the three forklifts to working condition. 10. IFCO has defaulted under the Agreements by improperly using and abusing the three forklifts and failing to pay the $17,078.18 in repair damages (the "Repair Damages") as required by IFCO under the Agreements. COUNTI Breach of Written A reement 11. Forklifts incorporates herein by reference paragraphs 1 through 10 above. 12. Pursuant to Pa.R.C.P. No. 1019(h), this count is based upon a breach of a written agreement by IFCO for failing to pay for the Repair Damages as required under the Agreements as a result of improperly using and abusing the three forklifts in question. 13. IFCO refuses to pay for the Repair Damages despite repeated demands by Forklifts Associates. 14. The $17,078.18 in repair damages represents the reasonable costs and charges to repair the three forklifts to good working condition. WHEREFORE, Forklifts requests this Court to enter judgment in its favor against IFCO in the amount of $17,078.18 along with continuing interest, costs, and reasonable attorney's fees for cost of collection until paid in full. McNEES WALLACE & NURICK LLC Date: July 31, 2007 By; ~ ~~ Cla n W. vidson, Esquire PA I.D. No. 79139 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 (phone) (717)-260-1678 (direct fax) cdavidson@mwn.com Attorneys for Forklifts, Inc. VERIFICATION I, John R McKenzie, hereby verify that I am authorized to make this Verification on behalf of Forklifts, Inc. and the facts contained in the foregoing Complaint are true and correct to the best of my information,lmowledge and belief and are made subject to the penalties of 18 Pa. C.S.A § 4904 relating to unsworn falsification to authorities. Jo R McKenzie on beh of F rklifts, Inc. ~xN~~~~ j REPLACES 9133 RENTAL SUPPLEMENT ER# 9545 SM:PJ02-9H3885 ER# 9546 SM: SUPPLMENT NUMBER 14 MASTER AGREEMENT NUMBER HAR 1836 TO MASTER RENTAL AGREEMENT dated 03/27/96 TRANSACTION NUMBER AhJ 268 Made this 12'N day of OCTOBER .2000 between FORKLIFTS INC. with principle offices at 741 IND PENDENCE AVE. MECHANICSBURG PA 17055 herein called "LESSOR'). and ¢~ SYSTEMS NORTH AMERICA, INC. principal office at 6829 FLINTLOCK ROAp MES U TE TX 7040 herein called ('LESSEE'). SHIP TO: 3177 BIGLERVILLE ROAD STATEMENT OF PURPOSE This Rental Supplement is entered into pursuant to the terms of a Master Rental Agreement between the parties hereto; which Agreement is hereby incorporated by reference ~ this Rental Supplement. Inconsideration of mutual promises herein contained, LE5SOR and LESSEE agree ~ follows: 1. TERM OF RENTAL The lean of rental of each unp fnduded in this Rental Supplement shop commence with the delivery thereof and unless sooner termirxjted as provided in the Master Retried Agreement, shall continue for a period of 60 MONTHS* 2 LOCATION The units shall be boated at end shill be used in LESSEE'S department as Indicated to the attached Survey Report. 3. SURVEY REPORT The minimum monthly rental charges stated ~ Section 4 hereof have been calculated on the basis of InfamaNon supplied by LESSEE and data h moped ~L~ESa OR as set forth in Survey Report dated which is hereby accepted by LESSEE and b attached part hereof. 4. SCHEDULE OF EQUIPMENT LESSOR hereby rents to LESSEE and LESSEE here by hires from LESSOR, the folbwing units, subject to the retrials, terms and conditbns herein contained: Mimimnn Qh': Descrlution .Monthly Rental Hourly N/A )~/Y~' Per IInit Chst~e per IIdt 2 BA NEw NISSAN JPSOLP (LPG, WITHOUT TANK) $ 328.00 $ ~~ 187" TTtIPLE STAGE UPRIGHT f / 41" CARRIAt.~E 48" LOAD BACKREST 48" FORKS SOLID SOFT RIDE PNEUMATIC DRIVE 8t STEER TIRES, SIDB SHIFTER, SINGLE HYDRAULICS 2 HBADLIGHTS, REAR WORK LIGHT, BACK UP ALARM, SUSPENSION SBAT LP Low PRESSURE LIGHT, REARV7BW MIRRORS, 5 yr/sooo hr sAI~EGUAitD E7xrENDBD wARRAN'Ty * 36 MONTHS WITH 2 ANNUAL RENEWALS , Where battery power~l equipmarri is rented any additional batterie6 and ctrargers other than that provided above and Included in the minimum monthly rental psr unp shall be rented from LESSOR at the sole cost and expense of LESSEE. 5. HOURLY CHARGE 5.1 OVERTIME CHARGE. If an overtime charge Is provided for in Section 4 of the Supplement for any unR of equipment, R shag apply to hours of use of that unit of equipment in excess of N/A hours per annum, adjusted N/A at N/A per N/A hours 5.2 USAGE CHARGE. If a usage charge b provided for in Section 4 of the Supplement for any unp of equipment, p shall apply to each hour of use of that unit of equipment. 5,3 PLACE OF PAYMENT. The hourly charge shay be payable to LESSOR at N/A 5.4 See Section 3 of the Master Rental Agre~nt for apppcable terms and conditions, The parties hereto have caused this Rental Supplement (INCLUDING THE TERMS AND CONDITIONS CONTAINED ON THE REVERSE SIDE HEREOF) to be executed by their duly authorized r'elxesentaWe as of the day and year first above mentioned. IFCO SYSTEMS NO TH AMER C INC. LESSEE By Title rr,~.. r-.._ ~ K ~ f, !" ~N.C LESSOR By Title VICE PRESIDENT LTRPI RENTAL TERMS AND CONDITIONS ~• 1. LESSOR leases to LESSEE and LESSEE hires ftom LESSOR the Equipment described herein, and LESSEE agrees to pay the specified rental charges in advance during the term hereof. 2. LESSEE shell not encumber this Contract or the Equipment, nor permit the Equipment to be removed to a location other then the address shown herein, nor permR any others to use the Equipment without LES50R'S written consent. 3. LESSEE shall be liable for and shall reimburse LES50R for the smounts equal to any sales, use, license or registration fees levied or based upon the rentals, or the equipment, or the use or the operation thereof. 4. LESSEE agrees to care for Equipment properly, to use it within its rated capacity and to assure that the equipment is operated with a Driver's Overhead Guard and Load Back Rest installed except when operating conditions prevent their use, to restrict its use to LESSEE'S qualified personnel who have been previously Instructed in proper Equipment operation and to prohibit anyone other than LES50R'S authorized personnel to repair or adjust the Equipment and to notify LESSOR immediately of accidents, disabilities, failures or Ilke information concerning the Equipment. LESSEE further agrees to pay for all damage to the Equipment resulting from improper use or abuse of the Equipment upon receipt of invoices therefor from LESSOR for LESSOR'S cost and expense of repair. LESSEE shell take care of normal needs of the equipment, including supplying fuel, oil and water, daily checking of general condition, including oil level, cooling system, water and batteries, recharging batteries, furnishing LP gas, fuel and cylinders, etc. LESSOR will service and maintain the Equipment in proper working condition and LESSEE agrees to make it available for servicing by LESSOR at reasonable time during LESSOR'S business hours. In the event that LESSEE requires service at times other then LESSOR'S business hours, LESSEE agrees to pay the difference between the straight time and overtime rate #or mecf5anic's time. 5. LESSEE agrees that LESSOR shell not be liable to LESSEE nor this Contract be impugned for LESSOR'S failure to repair the Equipment ff disabled or furnish substitute Equipment for any reason whatsoever and that LESSOR in no event is or shall be liable for special or consequential damages of any nature whatsoever or however caused. 6. The Equipment is leased f.o.b. LESSOR'S warehouse, and LESSEE agrees not to remove said Equipment to a location other than that shown on the reverse side hereof without prior written consent of the LESSOR. 7. LESSEE agrees at the expiration of the term or any extended term hereof or sooner termination of this Conrtract to return at LESSEE'S expense each unit of Equipment to LESSOR's warehouse in the same condhion as when received by LESSEE, reasonable wear and tear excepted. 8. LESSEE agrees to indemnify and hold LESSOR harmless from any and ell claims, damages, causes of action for any bodily Injury, death or property damage arising or occurring es a result of the maintenance, operation or use, including loading and unloading of the said equipment. LESSEE shall also indemnify and save LESSOR harmless from any and all injury fo or loss of the said equipment from whatever cause. LESSEE, at ks expense, shelf purchase and maintain during the term of this agreement Itsbility insurance with limits of not less then ¢b00,000 Each Occurrence and ¢500,000 Aggregate for Combined Bodily Injury end Property Damage Liability. LESSEE, at its expense, shall also keep said equipment insured, for the term of this lease and any renewals or extensions thereoi, for the full insurable value thereof against all risks of direct physical loss or damage. LESSEE shall furnish to LESSOR certificates of insurance giving evidence of the coverage required herein which certificates shall provide that cencellaUon of the insurance may be effected only after 10 days prior notice has been given to the LESSOR. Such certificates shall indicate thereon the said insurance is primary insurance. LESSOR shall be named es an additional insured on all such policies of insurance. LESSEE assumes all risk end liability for and agrees to indemnify, save and hold LESSOR harmless from all claims and liens, all lose of or damage to the Equipment and all lose, damage, claims, panahies, liability and expenses, including attorney's fees, howsoever arising or incurred because of the Equipment or the storage, use or operation thereof. 9. if LESSEE fails to pay any rental or other sum payable hereunder when due, or if LESSEE becomes subject to any state or federal insolvency, bankruptcy, receivership, trusteeship or similar proceeding, or if LESSEE shall default in any other term of this Conrtract. LESSOR may immediately terminate this Contract by notka in writing to LESSEE and repossess all items of Equipment wherever they may be found, but LESSEE shall nevertheless remain liable for all sums due and unpaid, plus a reasonable amount for attorney's fees such expenses as may be expended in the repossession of the Equipment. The remedies provided herein in favor of LESSOR shall not be deemed exclusive, but shall be cumulative and shall be in addition to ell other remedies in LESSOR'S favor, existing at law or in equity. Any notice hereunder shall be deemed sufficiently given if in wrting it is delivered to LESSEE, personally, or sent by mail addressed to LESSEE at the address set forth upon reverse side hereof. 10. This is s Contract of rental only end nothing herein conveys to LESSEE any right, title or interest in or any of the Equipment, except as a LESSEE. ~xHil~~~ RENTAL SUPPLEMENT ER# 9713 SM: ER# 9714 S/N: SUPPLMENT NUMBER 19 TO MASTER RENTAL AGREEMENT dated 03/27/96 MASTER AGREEMENT NUMBER TRANSACTION NUMBER HAR 1836 Made this 3RD day of FEBRUARY .2004 beiween FORKLIFTS. INC. with prindple offices at 741 INDEPENDENCE AVE. MECHANICSBURG PA 17055 herein calied'LESSOR'~. isnesq (c b fster.i and 1FC0 SYSTEMS PENNSYLVANIA INC. principal office at 6829 FLINTROCK ROAD (mil HOUSTON TX 77040 erein called ("LESSEE'. n m~ SHIP TO: 3177 BIGLERVILLE ROAD STATEMENT OF PURPOSE This Rental Supplement is entered into pursuant to the terms of a Master Rental Agreement between the parties hereto, which Agreement is hereby incorporated by reference in this Rental Supplement In consideration of mutual promises herein contained, LESSOR and LESSEE agree as follows: 1. TERM OF RENTAL The term of rental of each unk inducted in this Rental Supplement shall commence with the delNery thereof and unless sooner terminated as provided in the Master Rental Agreement, shall continue for a period of _ 36 MONTHS" 2. LOCATION The units shall be located at end shall be used in LESSEE'S department as indicated in the attached Survey Report. 3. SURVEY REPORT The minimum monthly rental d-arges stated in Section 4 hereof have been calculated on the basis of information supplied by LESSEE and data developed by LESSOR as set forth in Survey Report dated which is hereby accepted by LESSEE and is attached hereto end made a part hereof. 4. SCHEDULE OF EQUIPMENT LESSOR hereby rerrts to LESSEE end LESSEE here by hires from LESSOR, the fdbwing units, subject to the rentals, terms and wndftions herein contained: 1Kimimun Monthly Rental Hourly N/A iuslyear Qty: Description Per Unit Charge per Unit 2 EA. NEW NISSAN PLSOLP (LPG) FORKLIFTS $ 358.76 $ 187" TRIPLE STAGE UPRIGHT, 42" FORKS, SIDE SHII•"TER, SEPARATE LIFT AND TILT, ~~~~ HEADLIGHTS, REAR WORK LIGHTS, BACKUP ALARM •REARVlEW NIIRRORS * 36 MONTHS WITH 2 ANNUAL RENEWALS Where battery powered equipment•is rented any addtHonal batteries and dtargers other than that provided above and inducted in the minimum monthly rental par unit shat) be rented from LESSOR at the sole cost and expense of LESSEE. 5. HOURLY CHARGE 5.1 OVERTIME CHARGE. If an overtime charge Is provided for in Section 4 of the Supplement for any unit of equipment, it shall appty to hours of use of that unit of equipment in excess of N/A hours per annum, adjusted N/A at N/A hours per N/A 5.2 USAGE CHARGE. If a usage charge is provided for in Section 4 of the Supplement for any'unit of equ~ment, it sfiell eppty to each hour of use of that unft of equipment 5.3 PLACE OF PAYMENT. Tha hourly charge shall be payable to LESSOR at N/A 5.4 See Section 3 of the Master Rental Agreement for applicable terms and condit~ns. The parties hereto have caused thb Rental Supplement (INCLUDING THE TERMS AND CONDITIONS CONTAINED ON THE REVERSE SIDE HEREOF) to Ge executed by their duly authorized representative es of the day and year first above mentioned. IFCO SYSTEMS R NSYLVANiA INC. LESSEE . n. By JJ Title /~ v- o• '} ~ or• ~,~~- RK FT INC. LE SOf2 By Title VICE PRESIDENT RENTAL TERMS AND CONDITIONS 1. LESSOR leases to LESSEE and LESSEE hires from LESSOR the Equipment described herein, and LESSEE agrees to pay the specified rental charges in advance during the term hereof. 2. LESSEE shall not encumber this Contract or the Equipment, nor permh the Equipment to be removed to a location other than the address shown herein, nor permh any others to use the Equipment without LESSOR'S written consent. 3. LESSEE shall be liable for and shall reimburse LESSOR for the amounts equal to any sales, use, license or registration fees levied or based upon the rentals, or the equipment, or the use or the operation thereof. 4. LESSEE agrees to care for Equipment properly, to use h within its rated capacity and to assure that the equipment is operated with a Driver's Overhead Guard and Load Back Rest installed except when operating condhiona prevent their use, to restrict its use to LESSEE'S qualified personnel who have been previously Instructed in proper Equipment operation and to prohibit anyone other than LESSOR'S authorized personnel to repair or adjust the Equipment end to notify LESSOR Immediately of accidents, dlsabtlhies, failures or like information concerning the Equipment. LESSEE further agrees to pay for ell damage to the Equipment resulting from improper use or abuse of the Equipment upon receipt of Invoices therefor from LESSOR for LESSOR'S cost and expense of repair. LESSEE shall take care of normal needs of the equipment, including supplying fuel, oil and water, daily checking of general condition, including oil level, cooling system, water and batteries, recharging batteries, furnishing LP gas, fuel and cylinders, etc. LESSOR will service and maintain the Equipment in proper working condtion and LESSEE agrees to make h available for servicing by LESSOR at reasonable time during LESSOR'S business hours. In the event that LESSEE requires service at times other than LESSOR'S business hours, LESSEE agrees to pay the difference between the straight time and overtime rate #or mectfanic's time. 5. LESSEE egress that LESSOR shall not be liable to LES5EE nor this Contract be impugned for LESSOR'S failure to repair the Equipment it disabled or furnish substitute Equipment for any reason whatsoever and that LESSOR (n no event is or shall be liable for special or consequential damages of any nature whatsoever or however caused. 6. The Equipment is leased f.o.b. LESSOR'S warehouse, and LESSEE agrees not to remove said Equipment to a location other then that shown on the reverse side hereof without prior written consent of the LESSOR. 7. LESSEE agrees at the expiration of the term or any extended term hereof or sooner termination of this Contract to return at LESSEE'S expense each unh.of Equipment to LESSOR'S warehouse in the same condition as when received by LESSEE, reasonable wear and tear excepted. 8. LE55EE agrees to indemnify and hold LESSOR harmless from any and all claims, damages, causes of action for any bodily injury, death or property damage arising or occurring as a result of the maintenance, operation or use, including loading and unloading of the said equipment. LESSEE shall also indemnify and save LESSOR harmless from any and all injury fo or loss of the said equipment from whatever cause. LESSEE, at its expense, shell purchase end maintain during the term of this agreement liability insurance whh limits of not less then $500,000 Each Occurrence end $500,000 Aggregate for Combined Bodily Injury and Property Damage Liability. LESSEE, at its expense, shall alsq keep said equipment insured, for the term of this lease end any renewals or extensions thereof, for the full insurable value thereof against ail risks of direct physical loss or damage: LESSEE shall furnish to LESSOR certificates of insurance giving evidence of the coverage required herein which certificates shell provide that cancellation of the insurance may be effected only after f 0 days prior notice has been given to the LESSOR. Such certificates shall indicate thereon the said insurance is primary insurance. LESSOR shell be Hamad as an additional insured on aA such policies of insurance. LESSEE assumes all risk and liabilhy for and agrees to Indemnify, save and hold LESSOR harmless from all claims and liens, ail loss of or damage to the Equipment and all loss, damage, claims, penalties, liability and expenses, including attorney's fees, howsoever arising ar incurred because of the Equipment or the storage, use or operation thereof. 9. If LESSEE fails to pay any rental or other sum payable hereunder when due, or if LESSEE becomes aubJect to any state or federal insolvency, bankruptcy, receivership, trusteeship or similar proceeding, or if LESSEE shall defauh in any other term of Phis Cormact. LESSOR may immediately terminate this Contract by notice in writing to LESSEE and repossess ail hems of Equipment wherever they may be found, but LESSEE shall nevertheless remain liable for all sums due and unpaid, plus a reasonable amount for attorney's fees such expenses as may be expended in the repossession of the Equipment. The remedies provided herein in favor of LESSOR shall not be deemed exclusive, but shall be cumulative and shell be in addhion to all other remedies in LE55OR's favor, existing at law or in equity. Any notice hereunder shall be deemed sufficiently given if In wrting It is delivered to LESSEE, personally, or sent by mail addressed to LESSEE at the address set forth upon reverse side hereof. ,. 10. This is a Contract of rental only and nothing herein conveys to LESSEE any right, title or interest in or any of the Equipment, except as a LESSEE. ~x~ ~~~~ j C t • O '~FTSi~a MATERIAL HANDLING INNOVATIONS SING 155 • 741 lodep~ndence Ave. 758 Flory Mill Road 2893 youth Reech• Road .York -• Phone 717-845-1145 Aerial Lift Division • Mechanicsburg, PA x7055• •' Lancaster, PA 17601• .wliiemsport, PA 17701 Fax 917-763-0x25 741 Indepi3ndenceAve. Phone 717-918-670D Phone 717-b6o-3131 Phone 670-32B-3538• State Cdllege -• Phone 814238-D508 Mechanicsburg, PA 17051 Fax 717-9'16-8728 'Fax 717-560-3136 Fax 57D•326-3570 Fax 570.326-3670 'Phone 7J7-766-9313 ' Fax 717-897-8636 • •Remit To: ********~********* ~ Invoice # :04132007 . 741 Independence ,pvenlae - * INVOICE* Invoice Date :04/13/07 • ~ Mechanicsburg, PA 17055 *********'~******** • . Page # : 1 . . B Ifco Pallet Outlet S - . • . I T •Soott - . H T • Same '• ~ . L' O 3177 Biglerville Road I 0 . • L Biglerville, PA 17307 ~• P Quote #5-618 Rev ' •• ' • • Based on •our ~observatior[ of your Nissan 1viPLPO2A25VI;, $er: PL02-9H01331ift truck, it is our • ' recommendation that the following repairs be completed. ~ . ' ' ~ Install near seat bottom .. ... ... , ...:...... •... •:..:. •..... ...: $ 205'.00 ~ . Install newLBR'...... ....• .:..................... ................$•385.06• Replace top overhead guard .... , ......... ..... , ' . ...:..........$ 455.01 ' . . ' ~ Replace rear DOG legs ........:..:............: ~ ...................: $440.00 • ' Install 2 new headlight brackcts ...........:.... ......................$ •11.2.52 . Install new engfne hood cover'. •..... ...... ....... , ......... . $ 951.40 . _ • Install both side cgvers (engine compartment) :...... • . . . .:....... .. :. $ 484.26 , Install missing mirror right side ..... ... ..:....... ............... $ 57.51 - . ' Repair rear work light .. .......... .:.......... • ...:......:.:..... $ 90.00. •' . . Replace cover around hydr~lulic handles :.... .........• ................ ~ $ 47.52. Repair Ll' iock switch .......... ~ .......... .' ...........:...... , .... • $ 85.00 . ' Install new Vent cover in DOG ..........'........' .................. .... $ 59.81 . Replace plasfic dash panel on right side .. ... • .......'..........:..... $ 70.78 , ~ • ~ ' • Install new'wheel'on left front ..................... . ~................ $ 260.00 Install new steer tires . .:.....'......... .. ....... ....'........... $ 495.72 • Repaint complete snit , ........................ ... ~............... $ 800.06 ' Install all new decals . .~........' . :..............:..... .•........... $ 235,00, ' - ~ ~ Total.... :... $524.53 • • , Note: There will' be an additiona12.5% charge for miscellaneous .shop supplies. • Due to the pature of these repairs, we feel it is of the best interests of Ifco and Fprklifts, Inc. to perform _ ' these repairs at our lVtechanicsbui`g location. If any additional repairs are identified; you will be notiified. • Parts freight and sales tax are nqt i~.cluded in pricing. If you have atly questions, please don't hesitate to • call Don Kennedy at (717) 918-8706. ~ . ' -' , 7411ndependence Ave. Mechanicsburg, PA 17055 • Phone 717-916-6700 Fax 717.916-8729 .Q IF'TS~ MATERUAL HANDLING •INPLOVATION& SRJCE 1955 759 FIory.Mill Road 2893 South Reach Rdad York -Phone 717-945-1945 Lancaster, PA 17601 Williamsport, PA 17701 Fax 717-983-0126 Phone 717-560-3131 ~ Phone 570-326.3536 Stets College - Phone 914239-0506 Fax 717-b60-3136 Fax 570-1328-3670 Fax 670x326-3570 Aerial Lift Division 741 Independence Ave. Mechanicsburg, PA 1705E . Phone X17-76Eh9313 . • Fex 71797-6539 . ' • Remit To: ~ ****************•"`* Invoice # :.0413200'7• . • 741 Independence Avenue ~ . • * II~•OICE* ' ~ Invoice Date :04/13/07 •• 'Mechanicsburg; PA 17055' ~• ****************** • Page ~ 1 . .. ~ Account : ~ - ' B . Ifco Pallet Outlet S • . I .T ' • Scott ' • H T Same ' . I;' O ~ 3177 Big~erville Road Z O ' •' L • Biglerville, PA 17307 ~ ~ P . ' . .Quote #S=617 Rev • ~ . Based o>~.our observa#ion of dour Nissan MPLP02A25VL, .Ser. PL02-9H0131 lift ttvek, it~is our recommendation fleet the following repairs be ieompleted. • ~ ~ • Install new pair of forks. , .......... ,.......... .' ..: ............. $ 385.00 ~. . • ~ Install new engine liood cover .............. • ' . ..... .... ...... • . $ 951`.4Q . ' •Straighteil chain guard . ..... .... ......... ....... ... _ ....... ~$ 42.50 . ., ' • . ' Install 2• new headlight brackets...... ......... .:............... $ 112.52. . Replace top overhead'guard.... ... .:.:............ ~................:." $ 455.01 . Replace both'tear D(3G legs . .....: .:.................:......... $440.00 ..Install both'side covers (engine. compartments) ............... ... .:.. $ 484.26 • . ' . • - ' ,Install new dash panel right side •.......' • ...... . .. .......:... ... ~. $ • 76:68 ' .. Install ~iew'dalh panel le>~ side. .......•...... ~.'........'... ........ • $' 70;75 • . Replace'dasli coveraroundh~draailic handles .................... . .. $ • 48.12 • ~ . • Install new complete seal assembly ...... • ..... ......... ~. • ........ ~ $' 633.73 , . . Replace reaz work light ..• ..: ~ ...........: ........:..........•... ~,' .... $ 16.00 . , ~ Install neliv vent cover in DOG ...................... ....... , ....... $ 81'.50 . • Replace rear steer tiu-es ..1.... ....... .....................:......... $ 495.72. . ' `Install dust cover on steering wheel ......... ........... ........ $ 13.42 . ' - Repair LP lock switch . .... •.. • .. ............ .... • .. $ 85.00 .. Repaint complete unit ~.:... " ....................... ~ ...... ~ ....... •... $ 800:00 . Install all new decals ..... :................ ..........:.. . ....... $ 235.00 Install new ~side~hifter & hose up ...' .................. ..... .'....... $ 650.00 Install both mirrors'.......... .....................~..... •...'...:... • $ 61.96 • ' • ~ ~, ~ Total.... ... $6284.57 - . • Note: There will be an additional ~2.5% ohargrs for miscellaneous .shop supplies. • ' ~ ' Due to the.nature of these repairs, we feel it is of the best interests of ffco and Forklifts, Inc. to perform . these repairs at our Mechanicsburg location. If any additional repairs are identified, yo>,t will•be notified. • Parks freight and sales tax are not i$cluded in pricing. If you have any questions, please don't hesitate to '. ,call Don Kennedy'at (717) 9J.8-8706. ~ ~ . • 741 Independence Ave. Mechanicsburg, PA 17055 . phone 717-918-6900 ••Fax 717-918.8728 •p ~rs~~ MFITERIALNANDLINQJNNOV,4TIQNS SINCE 1955 759 Flory Mill Road ' 2893 South Reech Road York -Phone 717-846-1145 Lencaster,'PA 17601 WIIAemspo~t, PA 17701 Fax 717-763-0126 Phone 717-b60-3131 • Phone 57()-328-3638 State College - Phone 814-238-0508 Fax 717-560-138 ' ; Fax 570.326-3570 Fax 570-326-3670 Remit To: 741. Independence Avenue; • Mechanicsburg, PA 170~'S, • B • ifco Pallet Outlet • I T Scb1# • • L•O 3177•Biglerville Road L• Biglerville, PA,~~.7307 ss**************~* • * INVOICE* ****************** ~S F~•T •I O ., p. • - Invoice # ' 0412007 • Invoice Date :04/13/07 Page ~ 1 Account: ~. . Sapie ~ ' .Aerial Lift Division 741 Independence Ave. ~Meohanicsburg, PA 1705' Phone, 717-766-9313 • Fax 7177-6636 QIIO~E ~.~•-61v5-R@Y Z .. $ased on our obserYatign of your Nissan #9545 Model JOSOP Ser. P~02-9113 885 lift truck, it is our • recommendation that the fo~lo`vving rep rat`~~e 'completed. _ . Inspect & quote : • .... . . .... :.........:. - . , , . ...... ....... .$ 142.00• Install riew seat assembly.... •.... ........ ... ....:$ 5'5.73 . Install new forks ...... . ~. ~ f ~ ....... ...... $ .Straighten Hood and ~ • r radia .......... ~ .. ~ .. . ' ....... _ 420.50 . cover ova for . ~ : $ ' 142.00 . Pull carriage & upright apart, inspect roller, replace as needed .......... .... $ ,9'~8.OQ ' Install Hew' .radiator fan .... ., ......: ............' ...... • . , ~ . ~ ' . $ : 93:~ 6 • Install new strobe light .........:......... .... ~.. .......... ~ ~ ~ 94.7¢ . • jnctall new work light ..:......:............... ~ . , ...... $ 69.77 ' • Instal) new b$ckup alarm . ~ ... ~ ...........•.~........ ~...'.. , . ; $. ' 97.50 Install Both headlights & brackets ... • ...... ............. . $ 182.64 ~ . .Install new vent cover= in DOG . ~ .......' :............... .. s .......... $ 162.00 .. ................. $ ' 53.81 Straighten LBR,'remove broken Bolt on right side• .. ................ .. $ 106.50 Install side shifter &•intengal hoses & brackets as needed , , , , , ~ ~ ~ ~ ~ ~ .$1212.$0 • .:Install two (2) new mirrors ..... ................. ............ • .$ 61.96 No~ato~ anual ......................... .... ~ ......'...... ' $ 60.50' $ 47.31 . Repaint complete utlit . ..... .........'..... . ~ .... •.. ......... .. $ 954.94 Repl$ce dash papal right side . , ... , ' .....:.... • . .. ........:........:$. 102.00 • • , Total......... $5559,08 Note: There will bar an additiona12.5% charge for miscellaneous shop supplies. Due•to the nature of these repairs, we•feel it is of•the best interests of Ifco and Forkli$s,'Inc. to• perform ~' these repairs at cur Mechan}csburg location. If any additiorlal•repairs are identified, you will be notified: Parts freight and sales tax are not ipclnded in pricing. 1£you'have any questions, please don't hesitate to call Don I~.enriedy at (717) 918-8706: • n ~ ~ C ~ p ..p ~' d '~ ~ p" ~ - ~ 00 ~ r .r.' ~ ~ ~ r ~7 b _.. s /+ ~ ~ C ~ '"~Y ~i } ~ ~ ='~i ,G ~ ~ -' cY , SHERIFF'S RETURN - OUT OF COUNTY ~,.. C,$SE NO: 2007-04590 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FORKLIFTS INC VS IFCO SYSTEMS PENNSYLVANIA INC R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: IFCO SYSTEMS PENNSYLVANIA INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of ADAMS County, Pennsylvania, to serve the within COMPLAINT & NOTICE On August 20th 2007 this office was in receipt of the attached return from ADAMS ,,, .. Sheriff's Costs: So answer' • . =- _1---'~`~ -'"=~''~ Docketing 18.0 0 ~~~ .- ~.,.. f ,.;'::.,...~--~- Out of County 9.00 ~, - - ~"`! Surcharge 10.00 R. Thomas Klin Dep Adams County 24.00 Sheriff of Cu erland County Postage 3.75 64.75 ~/ ~/~ a~a7 08/20/2007 MCNEES WALLACE NURICK Sworn and subscribe to before me this day of A.D. . ~' In The Court of Common Pleas of Cumberland County, Pennsylvania Forklifts Inc VS. IFCO Systsns P..nnsylvania Inc 07-4590 civil No. Now, August August 9, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Adams County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~~ ~,~~~ Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, _ August 15 , 20 07 , at 1:40 o'clock P. M. served the within Complaint in Civil Action upon IFCO Systems Pennsylvania, Inc. at 3177 Biglerville Rd., Biglerville, PA by handing to Duke Holliway, General Manager a true and attested copy of the original complaint and made known to Duke Holliwa the contents thereof. Sworn and subscribed before me this day of ly/A , 20 So answers, ~ l J~ u Jeremy er ~-0 W riff of Adams County, PA COSTS SERVICE MILEAGE _ AFFIDAVIT $ 18.00 6.00 $ 24.00 R~. 8/16,/07 Thomas, Thomas and Hafer, LLP By: Daniel L. Grill, Esquire Attorney I.D. 65339 305 N. Front Street Harrisburg, PA 17103 717-237-7115 717-237-7105 fax dgril!@tthlaw. com Attorneys for Defendant IFCO Systems Pennsylvania, Inc. FORKLIFTS, INC. IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. N0.:07-4590 IFCO SYSTEMS PENNSYLVANIA, INC.: CIVIL ACTION- LAW DEFENDANT ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on b~ialf of Defendant 1 Pennsylvania, Inc., in the above-referenced LLP Date: d1 Z7~ ar I I..~J nl.~" ~- ,~niel L. Grill, E~quire I.D. No. 65339 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-71115 Attorney for Defendants IFCO Systems Pennsylvania, Inc. j CERTIFICATE OF SERVICE I, Ashleigh E. Anglemeyer, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the following document by depositing the same in the United States mail, first class, postage prepaid, as follows: Clayton W. Davidson, Esquire McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 Dated: ~ ` CT~J~~~ Ashleigh E.~~ ngleme e- 2 ~~ ~~ r~~ G~ - - ..~+ -Yf G' ct7 ~ r. -t" i"T`; 3 .~ :.~ (~Y ~ _ ~7 ~ --fir i c`_ _.- ,. -n -t uY Thomas, Thomas and Hafer, LLP By: Daniel L. Grill, Esquire Attorney I.D. 65339 305 N. Front Street Harrisburg, PA 17103 717-237-7115 717-237-7105 fax dgrill@tthlaw.com Attorneys for Defendant IFCO Systems Pennsylvania, lnc. FORKLIFTS, INC. IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. N0.:07-4590 IFCO SYSTEMS PENNSYLVANIA, INC.: CIVIL ACTION- LAW DEFENDANT NOTICE TO PLEAD TO: Forklifts, Inc. c/o Clayton W. Davidson, Esquire McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RE O E TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS OF SER CE EREOF OR A JUDGMENT OF NON PROS MAY BE ENTEF~D AGAINST YOU. Hafer, Date: 9~~' j'd~ By: Da iel L. Grill, Esquire I.D. No. 65339 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-71115 Attorney for Defendants IFCO Systems Pennsylvania, Inc. Thomas, Thomas and Hafer, LLP ey.~ Daniel L. Grill, Esqui-e Attorney I.D. 65339 305 N. Front Stn3et Harrisburg, PA 17103 717-237-7115 717-237-7105 fax dgrill@tthlaw. corn Attorneys for Defendant IFCO Systems Pennsylvania, Inc. FORKLIFTS, INC. IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. N0.:07-4590 IFCO SYSTEMS PENNSYLVANIA, INC.: CIVIL ACTION- LAW DEFENDANT ANSWER WITH NEW MATTER OF DEFENDANT IFCO SYSTEMS PENNSYLVANIA, INC. TO PLAINTIFF'S COMPLAINT THE PARTIES 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph of the Complaint and same are denied and strict proof demanded at the time of Trial. 2. Admitted with the clamcation that IFCO Systems Pennsylvania, Inc., has been merged into Pallet Companies, Inc. JURISDICTION S VENUE 3. Admitted. 4. Admitted. FACTUAL BACKGROUND 5. Admitted. 6. Admitted. 7. Admitted in part and denied in part. It is admitted that Defendant recently retumed three forklifts teased from Plaintiff under the "Agreements". It is specifically denied that each or any of the three forklifts was "in a state of almost total disrepair". To the contrary, the forklifts, each of them, were returned in reasonable condition albeit with evidence of normal wear and tear. Moreover, Defendant cared for each of these three pieces of equipment properly and took care of the normal needs of the equipment, including supplying fuel, oil and water, daily checking of general conditions, including oil level, cooling system, water and batteries, recharging batteries, furnishing L.P. gas, fuels and cylinders, and serviced and maintained the equipment in proper working condition. Moreover, Defendant willingly made available for servicing by Plaintiff ach of the three forklifts, upon request, at reasonable times during the Plaintiff's regular business hours. 8. Denied. It is specifically denied that Defendant improperly used and abused the three forklifts, or any of them. To the contrary, Defendant properly used the three forklifts, and the forklifts experienced wear and tear that is typical for forklifts, in Defendant's experience, particularly when used for the lengths of time at issue here, namely approximately six and half years for the first forklift, and approximately three years for the second and third forklifts. 9. Denied. The averments of this Paragraph of the Complaint are specifically denied and strict proof is demanded at the time of Trial. Moreover, Defendant returned the three forklifts to Plaintiff in reasonably good condition, and with evidence of normal wear and tear given the amount of time they were in service for use by Defendant. In addition, Exhibit "C" is not a summary of repairs to-place the three forklifts in working condition, but rather are estimates to return the forklifts to as-new condition. 10. Denied. It is specifically denied that Defendant has defaulted under the "Agreements" in anyway, and it is specifically denied that Defendant improperly used and/or abused the three forklifts. To the contrary, Defendant properly used the three forklifts in furtherance of its business and in compliance w~h the "Agreements". It is further specifically denied that Defendant is in default for failing to pay the claimed repair damages. To the contrary, Defendant has met each of its obligations under the "Agreements". Any repair costs incurred by Plaintiff are a result of normal wear and tear which it should reasonably anticipate given the lengths of service involved here, and Defendant believes those costs have, or should have, been already factored in to the monthly rental cost of each forklift. COUNT I BREACH OF WRITTEN AGREEMENT 11. Defendant incorporates herein by reference its answers to Paragraphs 1 through 10 of Plaintiffs Complaint as if same were set forth in their entirety. 12. Denied. While Plaintiff properly cites 'to Pa.R.C.P. 1019(h), Defendant specifically denies that it breached the written Agreements, spec~cally denies that the claimed Repair Damages are the obligation of Defendant, and spec~cally denies that it improperly used and abused the three forklifts in question. To the contrary, the three forklifts experienced normal wear and tear given their time in service, Defendant met each of its obligations under the Agreements, and the Repair Damages are the responsibility of the Plaintiff. 13. Admitted with the clarification that the so-called Repair Damages were occasioned by normal wear and tear, and that pursuant to the Agreements, such costs are the responsibility of Plaintiff. 14. Denied. It is specifically denied that the amount claimed represents reasonable costs and charges to repair the three forklifts to good working condition. To the contrary, the three forklifts were returned in conditions consistent with normal wear and tear given their respective times in the field. To the extent that Plaintiff sustained repair charges, those repairs are the responsibility of the Plaintiff. WHEREFORE, Defendant IFCO Systems Pennsylvania, Inc., demands that judgment be entered in its favor, dismissing the Plaintiffs Complaint and awarding costs, counsel fees, and other relief as provided by applicable law. NEW MATTER 15. Plaintiff's claims for "continuing interest, cost, and reasonable attorney's fees" should be denied as this claim is extra-contractual and without basis in the law. 16. Plaintiff, also identified as "Lessor" in the "Agreements" is in violation of its own rental terms and conditions, including term and condition No. 4, to wit: "Lessor will service and maintain the equipment in proper working order and Lessee agrees to make it available for servicing by Lessor at reasonable time during Lessor's business hours." At no time did the Defendant obstruct or otherwise fail to accommodate the Plaintiff in performing Plaintiff's own obligations under the "Agreements". 17. Due to its own breach of the "Agreements", Plaintiff is estopped from collecting Repair Damages, which actually resulted from normal wear and tear which Plaintiff itself was obligated itself to provide during the rental period. See Exhibits "A" & "B" to Plaintiff's Complaint. WHEREFORE, Defendant tFCO Systems Pennsylvania, Inc., d m nds that judgment be entered in its favor, dismissing the Plaintiff's Complaint nd warding costs, counsel fees, and other relief as provided~j applicable law. ~~~1Ei. Date: 4 ~ ~ ~~ Da iel L. Grill, E uire I.D No. 65339 3 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-71115 Attorney for Defendants IFCO Systems Pennsylvania, Inc. VER(FfCATIQN I, Christopher Tiesman, hereby state and aver that the factual statements contained in the Answer with New Matter to Plaintiffs Complaint are true and correct to the best of my knowledge, information and belief. This statement is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswom falsifications to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. DATE: ~ ~ 7 ._Sz' ~!~ Christopher Tip known as IFC man, for Pallet Companies, inc., formerly Systems Pennsylvania, Inc. CERTIFICATE OF SERVICE I, Ashleigh E. Anglemeyer, an employee of the law offices of Thomas, Thomas ~ Ha#er, LLP, do hereby certify that I served a copy of the following document by depositing the same in the United States mail, first class, postage prepaid, as follows: Clayton W. Davidson, Esquire McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 1 ~ ' _. Dated: ~ ~~ Ashleigh E nglem r t7 ~!f r~°~ trt ~'' C... c_-d~ ,~ C:t N ~• ~" ~- ~ '~ 3 t.~ ~ £3~ ti FORKLIFTS, INC., IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. :CASE NO. 07-4590 Civil Term IFCO SYSTEMS PENNSYLVANIA, INC., Defendant :CIVIL ACTION -LAW PRAECIPE TO DISCONTINUE WITHOUT PREJUDICE Please discontinue the above captioned action without prejudice. Respectfully submitted, McNEES WALLACE & NURICK LLC Date: February 5, 2008 By: ~~ Cla W. a 'son Atto ey I.D. 9139 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Direct Fax: 717-260-1678 Phone: 717-232-8000 cdavidson@,rnwn.com Attorneys for Forklifts, Inc. ~ r~ '* CERTIFICATE OF SERVICE The undersigned hereby certifies on this day that a true and correct copy of the attached Praecipe to Discontinue Without Prejudice was served by first-class United States mail, postage prepaid, addressed as follows: Daniel L. Grill, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street, 6`~ Floor Harrisburg, PA 17101 Date: February 5, 2008 ~-=-~'"-" Clayto . Davi on, Esquire -r- ° ' s ~~ + s~'s" ~ ~;; ~ ' ~ .C'' '." ..~ ~~. ~'} x~.-'~~ <-' ~'` < w~ ~~ ©