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Home My WebLink About08-1650HOWARD S. KLEIN ASSOCIATES By: Howard S. Klein, Esquire Attorney I.D. #08852 1315 Walnut Street, Suite 1200 Philadelphia, PA 19107 Phone # (215) 546-0310 Fax # (215)546-6338 Attorney for ABC Supply Co., Inc. AMERICAN BUILDERS & CONTRACTORS COURT OF COMMON PLAS SUPPLY CO., INC. d/b/a ABC SUPPLY CO., INC. CUMBERLAND COUNTY 99 Buck Road PENNSYLVANIA Huntington Valley, PA 19006 VS. MICHAEL WAGNER d/b/a WAGNER CONSTRUCTION 407 Pine Road Mount Holly Spring, PA 17065 NO. D8- JLo50 ?ivi l k1" N1 CIVIL ACTION - LAW COMPLAINT 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 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, 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. Court Administrator One Courthouse Square, 4`1 Floor Carisle, PA 17013 (717)240-6200 AVISO Le ban demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Race falta asentar una comparencia escrita o en persona o con un obogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomaro medidas y puede continuor la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE SERVICIO DE REFERENCIA LEGAL COMPLAINT 1. Plaintiff is American Builders & Contractors Supply Co., Inc. d/b/a ABC Supply Co. 2. Defendant is Michael Wagner d/b/a Wagner Construction. 3. At the special oral request of Defendant, Plaintiff sold certain merchandise in the kind, of the quantity, on the dates, at the times, in the forms, and for the prices set forth in Plaintiffs books of original entry, a true and correct copy of which is attached hereto, marked Exhibit "A", and by reference thereto incorporated herein. 4. Defendant received and accepted the aforesaid. 5. The prices set forth in Exhibit "A", are the fair and reasonable market prices and the prices the Defendant agreed to pay. 6. All credits due, if any, to Defendant are set forth in Exhibit "A". 7. There are late payment charges due at the rate of eighteen percent (18%) per annum from the due date to the date of this suit in the sum of $347.95 in accordance with the credit application signed by defendant on March 19, 2007, a copy of which is attached hereto as Exhibit "B" and incorporated herein. 8. Plaintiff avers that there are reasonable attorney fees due and owing client, which plaintiff avers is in the sum of $1,014.03, in accordance with the Credit Application executed by defendant on March 19, 2007, a true and correct copy of which is attached, marked Exhibit "B" and by reference thereto incorporated herein. 9. Although demand has been made, Defendant has failed and refused to make payment of the sum due Plaintiff. WHEREFORE, Plaintiff demands judgment against Defendant, Michael Wagner d/b/a Wagner Construction, in the sum of Five Thousand Seventy Dollars and Thirteen Cents ($5,070.13) plus interest to date of judgment at rate of 6% per annum and or anticipated costs of suit. HOWARD S. KLEIN, ESQUIRE Attorney for Plaintiff VERIFICATION I C h t S+i n C Ei?C f y of fAI)e6C6f) Li iders f C6,1rdejorS S'Jpej?l fc? ?nC T?? ASC Evfp'Xereby verify that I am duly authorized to make this Verification and that the statements of fact contained in the foregoing pleading 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. Affiant Title Nj S9- CJSaomcf AXoui+ i1ana yL r O/F #14496 Exhibit "A" Image 10 L! Yl V S ? GA '? M w -o a 600/vo0Q!I r ~ ~ ar r J O z p w ZZp Z 4 C* UI ? 1 o m m w o s g o S a tj P m v W ? N V A? m ? °w ? v `J m F J A t7D I y S AH N3 3NIISI8H3 Z98018l818 XY3 89:90 800Z/00/l0 Exhibit "B" Image 2 11/19/2007 05:25 FAX 9737910962 11/09/2007 10:46 5184891224 iMR-21-07 14:33 MI0111- a3l2t8/2007 071" CHRISTINE EMERY MICHELLE STELLUTTO 6 ndr" 1s 07 OA. s >Arwn wr ll?wha+•L of OwaeaiR tel.. Amami "M see povowu11KRtIRMsong per4..rM v?.iManl• +ur,C.wMw,?A?i?t A1rIrIMn7MM.MwIr fl tw ? ?, Two ro e7s..a!•+N llel+rer>?h+? ¦ pm • •? 1040 Wkwom 71?a ,r? s.r _ SOL - w•. OR pwdt Marti HERM 31+. t?wdM1A CLAIM ??- mkw oiwrAl?l.?;.. xc.h ltwfwww • New >rw g7s« -e•e wtlfee "tl- ?1MC AN1l11 .. Mer _ tMl ASCIUM YOM 5111?I?rIM? GO7 4 i ,?? ?r 0 QL?IkIM 15 a Ca p? ?R ?? 'j61<?rlw?i?? p O ?? `o°"' °etirw?¦ ttw KVAr 1rw IZ003/007 PAGE 03 1-701 1 .Udlo-. ?.. OFF-- . ? ?- w.?ws.r+?ow.l C:dRftiPgilbdW -Pw" 1 AM pvmm#4&W Ibm - Tell us ill your compay 'T'ype of Ownership [ ] Partnership ? Corporation ? Proprietorship ? LLC (attach list of members) I'mde/Business Tame kddress I "Buyer" Attach Business Card or Complete Address Z City State Zip Phone ----Fax Cell Phone State Contractors License # (if applicable) _ Have you purchased from ABC before? Where Estimated Monthly Purchases ___ Year Business Started - Federal Tax I.D.# if Tax Exempt - Attach Certificate ? Attached Do You Issue a Purchase Order ? Yes ? No Person to Contact Regarding Accounts Payable: at Phone Owners and/or Officers Information: Name ____ Title 1.3SN a Address City State Zip Date of Birth County Driver's License a _ Name Title SSN x Address City State Zip Date of Birth _ County Driver's License # Bank Information: Name of Bank Address _ Phone Major Trade References: :Name Address _ Phone Fax Name Address _ Phone _ Fax ABC SUPPLY CO.; INC. Sales Associate Sales # Branch # 000 0 A. Low slope roofing 0 H. tinder, ; 0 B. Low & steep slope roofing C) 1. Re6der/6ig box/lumber yard . C) C. Steep slope roofing 0 J. Distributor o, . ? 01). Siding anil/4 windrnvs C1 E R d K, E? 8t Stucco . 6064 & sldindwindows C-n U 0 L. Othet Cl F Remodeler 0 M. Self Applicator C) G. General contractcr Agreement: Buyer authorizes all persons, institutions, organizations, companies and credit reporting agencies to furnish all pertinent information, including commercial and consumer credit reports, requested from time to time by ABC. The undersigned and Buyer, if different, each warrant that the information given is true and no unfa- vorable information has been omitted. The extension of credit hereunder, the amount of credit and the can- cellation or reduction of credit shall be within the sole discretion of ABC. Buyer agrees to be bound by ABC's Credit Agreement and Purchase Agreement and acknowledges receipt of same. Each undersigned individual who is either a partner of the Buyer as credit applicant or a sole proprietorship of the Buyer as credit appli- cant, recognizing that his or her individual credit history may be a factor in the evaluation of the credit his- tory of the buyer, hereby consents for and authorizes ABC to obtain and use consumer credit reports for each undersigned individual, from time to time as may be needed, to evaluate the credit of Buyer. i Signature - Date Print ? you giue us sour personal ouare, Yes, if your company.. • has less than $ZMM in annual sales or • is less than 2 years old, or • has less than 10 employees, or • is a partnership or proprietorship. Giving us your personal guaranty will speed the process of approving your application. Continuing Guaranty I (we) the undersigned understand that the information furnished ycL, is fur the pr,rpose bf cb,aiuing c,ed it from your company, that I am (we are) authorized, in my (our) capacity, to bind my (our) company accord- ingly. I (we) the undersigned, hereinafter referred to as guarantors, do jointly, severally, and unconditionally guarantee and promise to promptly pay when due any and all indebtedness of Buyer to ABC, together with any late payment charge that may accrue thereon, regardless of how such indebtedness is incurred, whether - indebtedness is direct or indirect, absolute or contingent, due or to become due, or exists now or arises hereafter. In addition, the Guarantor(s) agree to pay all costs of collection, legal expenses and attorney's fees paid or incurred by ABC in the collection of Buyer's indebtedness and in enforcing this Continuing Guaranty. The fore- going indebtedness, principal, interest, costs, expenses and fees are hereinafter called the "Indebtedness." Each undersigned guarantor. agrees to be bound by ABC's Terms and Conditions of Continuing Guaranty. Each undersigned personal guarantor, recognizing that his or her individual credit history may be a neces- sary factor in the evaluation of this Continuing Guaranty, hereby consents for and authorizes ABC to obtain and use consumer credit reports for each undersigned, from time to time as may be needed to evaluate the credit of Buyer and/or the undersigned. Guarantor Complete Legal Name: (Circle One If Applicable) Jr./Sr Name First Middle Lmt Home Address City State Zip Phone SSN x Complete Legal Name: (Circle One If Applicable) Jr. / Sr. Name first -hut Home Address City State Zip Phone SSN x t t 1 sign here Complete Legal Signature Witness Complete Legal Signature Witness _ Date Date AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC. CREDIT AGREEMENT As a condition to the election of American Builders & Contractors Supply Co., Inc. ("ABC") to extend credit to Buyer, Buyer has executed ABC's Credit Application. All purchases by Buyer from ABC are made pursuant to ABC's Credit Application, this Credit Agreement, and ABC's Purchase Agreement. The terms and conditions of each referenced document are incorporated by reference herein. The Credit Application, Credit Agreement, and Purchase Agreement together constitute the entire agreement between ABC and Buyer and shall be collectively refitted to from time to time as the Agreement. A. General Terms and Conditions. 1. Buyer shall pay each invoice in full in accordance with the terms of the particular Purchase Agreement, invoice, or other shipping document, with or without Buyer's signature. In the event Buyer fails to make payment when due, Buyer shall pay, in addition to the invoice amount, the applicable late payment charge indicated below for the State where the pertinent ABC Branch is located. ABC reserves the right to change such charges from time to time in its sole discretion and without notice. All payments are due within terms. State(s) Monthly Late Payment Charge Arkansas .83% Louisiana, Montana, Vermont 1.0% Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa, 1.5% Kentucky, Massachusetts, Michigan; Mississippi, North Carolina, North Dakota, Rhode Island, Texas; Utah, West Virginia, Wisconsin All others 2.0% In addition, for ABC Centers located in Arkansas, Buyer shall pay a onetime fee of 10% of the invoice charge in the event the Buyer fails to make payment when due. Late payment charges shall be construed in such a manner as to be enforceable under the pertinent state law (including but not limited to classification as "liquidated damages", "time-price differential" or "interest"). Buyer agrees that should the late payment charge be deemed by a court of competent jurisdiction to violate any law, Buyer's sole remedy against ABC for such violation shall be the application of any late payment charge paid in excess of the maximum rate allowable by law toward the unpaid account balance (or a refund of such excess if no account balance remains unpaid). 2. Buyer agrees to pay all costs of collection by ABC of any amounts due hereunder, includir, actual attorney's fees. Buyer further agrees that, in the event any action arising out of or related to the Agreement between Buyer and ABC, and ABC prevails, Buyer shall pay ABC its actual attorney's fees and other costs incurred as a result of or in connection with such action. To the extent state law limits the recoverability of attorney's fees, ABC shall be entitled to recover its fees up to the maximum allowed by state law. 3. ABC shall have the sole discretion and complete right to apply any payment received from Buyer hereunder in any manner, which ABC deems proper. Unless otherwise specified in the remittance advice, ABC may apply payments first to late payment charges, service charges, shipping charges, attorney's fees, or any other applicable charge, in any order, before applying the remainder of any such payments toward Buyer's principal account balance. 4. Buyer represents and warrants that Buyer is not a "consumer" as defined in the Federal Consumer Credit Protection Act, or any other consumer credit laws (Federal, State or Local), and Buyer waives all rights granted to consumers under the Federal Consumer Credit Protection Act, and other Federal, State and Local laws pertaining to "consumer" rights. Buyer further represents and warrants that all purchases made from ABC. and any credit extended hereunder will be used solely for business and commercial purposes. 5. The Agreement is governed by the laws of the state where the ABC branch pertinent to the transaction is situated. Any action arising out of or related to the Agreement shall be brought, at ABC's sole discretion, either in a court with jurisdiction over the county in which the pertinent ABC Branch is situated, in the county in which the project for which the goods are to be used is located, or in a court or before an arbitration panel where an action between ABC and a third party is pending which concerns the subject matter of the Agreement. To the extent allowed by law, Buyer waives its rights to a trial by jury in any action brought upon, or by reason of, the Agreement. The Agreement contains the full, final and exclusive statement of the Agreement between ABC and Buyer, and no terms and conditions other than those stated herein, and no agreement or understanding in any way purporting to modify the terms and conditions thereof, shall be binding on ABC without ABCs written consent. Waiver by ABC of any terms or conditions of this contract or wai,,er of any breach thereof shall not be construed as a waiver of any other terms, conditions, or breach. Determination that any provision of the Agreement is illegal or hivalid shall not affect the validity or enforceability of the remaining provisions of the Agreement. 6. Buyer agrees to provide ABC with prompt written notice of any change in Buyer's name, address, ownership, or form of business entity. B. Terms and Conditions of Continuirig Guaranty. For value received, and for the purpose of influencing ABC to extend credit or other financial accommodations, or to continue to extend credit or other financial accommodations, to Buyer, each person or entity who signed the ABC Credit Application as guarantor (hereinafter "Guarantor", whether one or more) hereby guarantees jointly and severally, without limitation as to amount, the prompt payment when due of any and all indebtedness of' Buyer to ABC, together with any late payment charge that may accrue thereon, regardless of how such indebtedness is incurred, whether such indebtedness is direct or indirect, absolute or contingent, due or to become due, or exists now or arises hereafter. In addition, Guarantor agrees to pay all costs of collection, legal expenses and attorney's fees paid or incurred by ABC in the collection of Buyer's indebtednes< and in enforcing this Guaranty. The foregoing indebtedness, principal, interest, costs, expenses and fees are hereinafter called the "Indebtedness". 1. No extension or renewal of time of payment of the Indebtedness, no release or surrender of any security for the Indebtedness of this Guaranty, no release of any person primarily or secondarily liable on the Indebtedness and no delay in enforcement of payment of the Indebtedness under this Guaranty shall affect the liability of Guarantor hereunder. Any and all payments upon the Indebtedness made by Buyer, Guarantor, or any other person and the proceeds of any and all collateral or security for any of the Indebtedness, may be applied by ABC upon such of the items of the Indebtedness as ABC shall determine in its sole discretion. 2. Guarantor waives notice of acceptance of this Guaranty, notice of the extension of creditor financial accommodation to Buyer, notice of the amount of Indebtedness which may exist from time to time, notice of any extension of the time for payment, demand for payment, notice of non-payment, protest, notice of protest, and all other notices of every kind and nature, and agrees that this Guaranty may he enforced against the undersigned without any prior or concurrent proceeding or action against Buyer. The obligations of the Guarantor shall not be affected by: (a) the failure of ABC to assert any claim or demand or to enforce any right or remedy against the Buyer or another Guarantor; or (b) any extension, modification, or renewal of the terms or amount of the Indebtedness. 3. This Guaranty is a continuing guaranty and shall remain in full force and shall be binding upon Guarantor and Guarantor's heirs, executors, administrators, and assigns notwithstanding the death of one or more of the undersigned, until after (a) expiration of thirty (30) days after written notice by Certified or Registered Mail of revocation is received by ABC at its office first written below and (b) all of the Indebtedness owed to ABC by Buyer shall have been fully paid (including all late payment charges and attorneys fees which accrue after expiration of the 30 day period). 4. If this Guaranty is executed by more than one person or entity, it shall be the joint and several obligation of each person and entity. 5. If this Guaranty is executed by a corporation, the undersigned officer of said corporation represents and warrants that the corporation has the power to make this Guaranty, that the execution by him on behalf of the corporation has been duly authorized and that the making of this Guaranty is in the best interest of the corporation. 6. Guarantor hereby waives and ren)unces any and all homestead or exemption rights Guarantor may have under or by virtue of the constitution or laws of the state of Guarantor's domicile, or of any other state or of the United States as against th a liability and obligation hereby created. Guarantor transfers and assigns to ABC an amount of any homestead or exemption that may be allowed to Guarantor, including such homestead or exemption as may be set apart in bankruptcy, equal to the amount necessary to pay this obligation in full together with all costs of collection. 7. Guarantor further agrees to the e?aent that the Buyer makes a payment or payments to ABC or ABC receives any proceeds or collateral, which payment or payments or any part thereof are subsequently invali- dated, declared to be fraudulent or preferential, set aside and/or required to be repaid to the Buyer, its estate, trustee, receiver, or any other parry including without limitation the Guarantor, raider any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, Buyer's obligations, or the part thereof which has been paid, reduced or satisfied by such amount, shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred. 8. Guarantor waives all claims for subrogation, reimbursement, exoneration, contribution and indemnification with respect to sums paid or payable to ABC by Guarantor. Guarantor hereby waives any right to enforce any remedy that ABC now has or may hereafter have against the Buyer. Guarantor further agrees that any and all claims of Guarantor against the Buyer shall be subordinate and subject in right of payment to the prior payment in full of all principal, interest, reasonable costs of collection (including attorneys' fees and expenses), and any other liabilities or obligations owing to ABC by the Buyer. 9. Should any one or more provisions of this Guaranty be determined to be illegal or unenforceable by a court of competent jurisdiction, all other provisions shall remain effective. 10. All obligations are payable and performable at the address in which the pertinent ABC branch is situated. 11. Guarantor authorizes all persons, institutions, organizations, companies and credit reporting agencies to furnish any and all information, including commercial and consumer credit reports, requested from time to time by ABC. 12. The Guarantor hereby empowers the prothonotary or any attorney of any court of record within the United States, excepting those states which do not allow or acknowledge this declaration, to appear for the Undersigned to confess judgment as often as necessary against the Undersigned in favor of ABC Supply in any such court, as of any term, for the foregoing indebtedness, plus costs of suit and attorneys fees, with release of all errors. AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC. PURCHASE AGREEMENT TERMS & CONDITIONS OF SALE 1. Any purchase made on credit requires that Buyer have on file with American Builders & Contractors Supply Co., Inc. ('ABC) an approved Credit Application. Buyer further confirms Buyer's consent to ABC's Credit Agreement, the terms and conditions of which have been read by Buyer and are incorporated by reference herein. 2. ABC acknowledges and accepts Buyer's order, ABC's acknowledgement and acceptance is expressly conditioned upon Buyer's acceptance of the terms and conditions herein. No terms or conditions other than those stated herein, whether contained in Buyer's purchase order, shipping release, or elsewhere, and no written or oral agreement that purports to vary these terms and conditions shall be binding upon ABC unless hereafter set forth in a writing signed by ABC's authorized representative. All negotiations, proposals and representations are merged herein, and this writing constitutes the complete and exclusive statement of the terms and conditions of this Purchase Agreement between Buyer and ABC. In the event Buyer fails to accept this Purchase Agreement in writing, Buyer's consent to the terms and conditions herein shall be conclusively presumed, either from Buyer's failure to object in ten days in writing or from Buyer's acceptance or use of the material delivered hereunder. 3. In any case, in which ABC makes delivery, Buyer hereby agrees to pay ABC's customary shipping charges. Delivery shall be made at the project site or other place of delivery adjacent to the closest public right of way. The risk of loss shall pass to Buyer upon delivery of the goods should Buyer not be present to accept delivery. Buyer hereby authorizes ABC to unload the goods and leave them at the delivery destination. Buyer shall release ABC and shall indemnify and hold harmless ABC from and against any and all claims demands, actions, causes of action, cost, expenses, and attorney's fees arising out of or in connection with any and all injury including death, to any person or persons (whether third parties or agents, servants, or employees of Buyer), any and all damages to or loss of any property (whether belonging to Buyer or a third party), and any and all other damages recognized at law or in equity caused in whole or in part by or in any way related to the delivery of goods onto the project site, whenever such delivery is made in accordance with or pursuant to Buyer's instructions. 4. Buyer shall have the right to inspect the goods upon arrival. Buyer's inspection rights shall expire 24 hours after the arrival of the goods at the delivery destination. A failure to make inspection within that time shall waive notice of any defect which reasonable inspection would have revealed. A rejection of the goods by Buyer shall not be effective unless it is trade and written notice thereof is given to ABC within 5 calendar days of deli eery. 5. ABC shall have the right, without prejudice to any, other rights, to suspend further deliveries of any items purchased if Buyer defaults in payment of any amounts due, or whenever ABC may deem itself insect -e as to Buyer's performrnce, until Buyer remedies. such default or provides adequate assurance to ABC of Buyer's ability m perform, 6. Unless otherwise provided by law, ABC may require Buyer to pay or to reimburse ABC for any tax, (except, income tax) which now or hereafter may be imposed by any taxing authority with respect to the items purchased or the sale, p irchase, manufacture, delivery or use thereof. 7. ABC reserves the right to discontinue, without liability hereunder, deliveries of any merchandise, the manufacture, use and/or sale of which in the opinion of ABC would infringe any patent now or here after issued and under which ABC is not licensed. 8. Where Buyer requires tests or inspection not regularly provided by ABC, ABC may charge Buyer for the actual cost of such test or inspections. 9. An order may be terminated by Buyer before completion only with ABC's written consent, in which event Buyer shall pay to ABC: (a.) The contract price for all products, which shall have been delivered or completed prior to receipt of notice of termination. (b.) All actual cost, incurred by ABC in connection with the uncompleted portion of the order. (c.) Cancellation charges, it any, of ABC because of its commitments, made under the order. 10. Buyer shall not hold ABC responsible for any delay caused in whole or in part by circumstances beyond ABC's reasonable control, including but not limited to, force majeure, fires, or accidents; strikes or other differences with workmen; war (whether declared or undeclared), riots, or embargoes; delays by carriers; delays in shipment or receipt of materials from suppliers; or any legislative, administrative or executive law, order, or requisition of the federal or any state or local government or any subdivision, department, agency, officer or official thereof. ABC shall not be liable in any event for any special, incidental, or consequential damages caused by ABC's failure or delay in performance or delivery due to any cause whatsoever, if ABC is unable, due to any cause beyond ABC's control, to supply Buyer's total demand for products, AIIC may allocate its available supply among ABCs customers, including ABC's branches and affiliates, in any manner ABC deems reasonable. 11. ABC shall assign or transfer to Buyer any assignable or transferable manufacturer's warranties, if any, applicable to this purchase, in lieu of all other warranties, express or implied. ABC MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. There is no warranty that extends beyond the description on the face of this Purchase Agreement. 12. ABC shall not be liable under any circumstances for consequential or incidental damages arising out of, or in connection with, this Purchase Agreement. The liability of ABC is limited to repayment of the purchase price of items not conforming to the description on the face hereof upon return of the items. This remedy is the exclusive remedy of Buyer under this Purchase Agreement. ABC shall not be liable for any damages attributable to product abuse, misuse, neglect or any other cause, which is not the fault of ABC. 13. Buyer agrees to indemnify and hold harmless ABC from and against any and all claims, demands, actions, causes of action, costs, expenses, and attorney's fees arising out of or in connection with any and all injury, including death, to any person or persons (whether third patties or agents, servants or employees of Buyer), any and all damages to or loss of any property (whether belonging to Buyer or to a third party), and any and all other damages recognized at law or in equity, caused by or resulting from in whole or in part, any act(s) or omission(s), negligent or otherwise, of Buyer, or any of Buyer's agents, servants, employees, subcontractors or customers. In the event that the applicable law prohibits enforcement of this clause as written, then and only then, this clause shall be modified to provide the maximum indemnification to ABC, as indemnitee, allowable under that applicable law. 14. This Purchase Agreement shall be governed by and construed according to the laws of the state wherein the ABC branch supplying the goods hereunder is situated. Any action brought, upon or by reason of, this Purchase Agreement shall be brought, in ABC's sole discretion, either in a court with jurisdiction over the county in which the ABC branch is located, in a court with jurisdiction over the county in which the project for which the goods are to he used is located, or in a Court or before an arbitration panel where an action between ABC and a third party is pending which concerns the subject matter of this Purchase Agreement. Buyer agrees that, in the event, any action is brought upon, or due to, this Purchase Agreement by either Buyer or ABC, and ABC prevails, Buyer shall pay ABC's reasonable attorney's fees and other costs incurred because of or in connection with such action. 15. Waiver by ABC of any terms or conditions of this contract or waiver of any breach hereof shall not be construed as a waiver of any other term, condition, or breach. Determination that any provision of this Agreement is illegal or invalid shall not affect the validity or enforceability of the remaining provisions of this Agreement. 16. T(D symbols printed on the front of any ABC warehouse picking/delivery ticket, invoice, or statement represents the tax and discount status of individual items. The following is a description of each symbol or combination of symbols: = Taxable regardless of the order's tax status 1 = Nontaxable regardless of the order's tax status - = Non-discountable regardless of the order's terms 1 = Taxable and non-discountable regardless of the order's tax status and terns A- = Nontaxable and non-discountable regardless of the order's tax status and terms If the item is taxable, and discountable based on the order's tax status and terms, no symbol will print. Rl 0 J ` C=7 Sti -7 ^ `? (ol rafn car -G 0 SHERIFF'S RETURN - REGULAR CASE NO: 2008-01650 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND AMERICAN BUILDERS & CONTRACTOR VS WAGNER MICHAEL D/B/A WAGNER CO NOAH CLINE , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon WAGNER MICHAEL D/B/A WAGNER CONSTRUCTION the DEFENDANT , at 1930:00 HOURS,,on the 17th day of March , 2008 ?i- An 7 DTNTF RnAT MT HOLLY SPRINGS, PA 17065 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 3)d.qj b g `- So Answers: 18.00 5.76 i '..-- 00 10.00 R. Thomas Kline .00 33.76 03/18/2008 HOWARD KLEIN Sworn and Subscibed to before me this day By: Deputy Sheriff of A. D. a HOWARD S. KLEIN & ASSOCIATES By: Howard S. Klein, Esquire Attorney I.D. #08852 1315 Walnut Street, Suite 1200 Philadelphia, PA 19107 Phone: (215)546-0310 Fax: (215)546-6338 E-Mail: hsk@hskleinlaw.com Plaintiff: Attorney for ABC Supply Co., Inc. AMERICAN BUILDERS & CONTRACTORS COURT OF COMMON PLAS SUPPLY CO., INC. d/b/a ABC SUPPLY CO., INC. CUMBERLAND COUNTY 99 Buck Road PENNSYLVANIA Huntington Valley, PA 19006 VS. Defendant: MICHAEL WAGNER d/b/a WAGNER CONSTRUCTION 407 Pine Road Mount Holly Spring, PA 17065 NO. 08-1650 CIVIL ACTION - LAW PRAECIPE FOR JUDGMENT ASSESSMENT OF DAMAGES CERTIFICATION OF NOTICE TO THE PROTHONOTARY: Enter Judgment against above captioned Defendant, in accordance with Pennsylvania Rule of Civil Procedure 1037, Defendant having failed to file Responsive Pleading within the time required. Assess damages as follows: Real Debt Interest from 3/12/08 Judgment $5,070.13 $ 25.35 $5,095.48 plus costs. CERTIFICATION It is hereby certified that a written notice of intention to file the Instant Praecipe was mailed or delivered to the party against whom judgment is being entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the Instant Praecipe. A copy of said Notice is attached hereto, setting forth mailing date. HOWARD S. KLEIN, ESQUIRE Attorney I.D. #08852 1315 Walnut Street, Suite 1200 Philadelphia, PA 19107 Phone: (215)546-0310 Fax: (215)546-6338 Attorney for ABC Supply Co., Inc. Date: April 22, 2008 I hereby Assess Damages as above and enter Judgment for cost and the sum of $5,095.48 plus costs. - (II&I ?w P OTHO Y HOWARD S. KLEIN & ASSOCIATES By: Howard S. Klein, Esquire Attorney I.D. #08852 1315 Walnut Street, Suite 1200 Philadelphia, PA 19107 Phone: (215)546-0310 Fax: (215)546-6338 E-Mail: hskOhskleinlaw.com Plaintiff: Attorney for ABC Supply Co., Inc. AMERICAN BUILDERS & CONTRACTORS COURT OF COMMON PLAS SUPPLY CO., INC. d/b/a ABC SUPPLY CO., INC. CUMBERLAND COUNTY 99 Buck Road PENNSYLVANIA Huntington Valley, PA 19006 VS. Defendant: MICHAEL WAGNER d/b/a WAGNER CONSTRUCTION 407 Pine Road Mount Holly Spring, PA 17065 NO. 08-1650 CIVIL ACTION - LAW AFFIDAVIT UNDER SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1040 AS AMENDED STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND Howard S. Klein, Esquire being duly sworn according to law deposes and says that the above named Defendant, Michael Wagner is not in the military service of the United States of America as defined by the Soldiers' and Sailors' Civil Relief Act of 1940 as amended; that said defendant(s) is over 21 years of age and is employed. HOWARD S. KLEIN, ESQUIRE Attorney for Plaintiff Sworn to and subscribed before me this 22"d day of April, 2008. N tary COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL JONI B. DICHTER KLEIN, Notary Public Haverford Twp., Delaware County My Commission Expires December 16, 2011 . 4b HOWARD S. KLEIN & ASSOCIATES By: Howard S. Klein, Esquire Attorney I.D. #08852 1315 Walnut Street, Suite 1200 Philadelphia, PA 19107 Phone: (215)546-0310 Fax: (215)546-6338 E-Mail: hsk@hskleinlaw.com Plaintiff: AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC. d/b/a ABC SUPPLY CO., INC. 99 Buck Road Huntington Valley, PA 19006 VS. Defendant: MICHAEL WAGNER d/b/a WAGNER CONSTRUCTION 407 Pine Road Mount Holly Spring, PA 17065 Attorney for ABC Supply Co., Inc. COURT OF COMMON PLAS CUMBERLAND COUNTY PENNSYLVANIA NO. 08-1650 CIVIL ACTION - LAW CERTIFICATION OF ADDRESS TO THE PROTHONOTARY: I hereby certify that the precise address of the within Judgment Creditor, 99 Buck Road, Huntington Valley, PA 19006. I hereby certify that the precise address of the within Judgment Debtor, 407 Pine Road, Mount Holly Spring, PA 17065. HOWARD S. KLEIN, ESQUIRE Attorney for Plaintiff HOWARD S. KLEIN, ESQUIRE Attorney for Plaintiff E-Mail: hsk@hskleinlaw.com Identification #08852 Howard S. Klein Associates 1315 Walnut Street, Suite 1200 Philadelphia, PA 19107 (215)546-0310 AMERICAN BUILDERS & CONTRACTORS COURT OF COMMON PLAS SUPPLY CO., INC. d/b/a ABC SUPPLY CO., INC. CUMBERLAND COUNTY 99 Buck Road PENNSYLVANIA Huntington Valley, PA 19006 vs. MICHAEL WAGNER d/b/a WAGNER CONSTRUCTION 407 Pine Road Mount Holly Spring, PA 17065 NO. 08-1650 CIVIL ACTION - LAW TO: Michael Wagner d/b/a Wagner Construction 407 Pine Road Mount Holley Springs, PA 17065 DATE OF NOTICE: April 9, 2008 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 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 CUMBERLAND LAW JOURNAL 32 South Bedford Street Carlisle, PA 17013 717-249-3166 9 tel. AZ614"'_ HOWARD S. KLEIN, ESQUIRE 1315 Walnut Street, Suite 1200 Philadelphia, PA 19107 9> Q O ca?-+ rr 1 ? ,r ?a 1 i7 r PRAECIPE FOR WRIT OF EXECUTION - (MONEY JUDGMENTS Pa. R.C.P. 3101 to 3149 American Builders & Contractors Supply Co., Inc. d/b/a ABC Supply Co., Inc. .9.. 9 ........ uck.......... Road.............................................................. In the Court of Common Pleas of B Huntington Valley, PA 19006 . .................................................................................. CUMBERLAND County, Pennsylvania. No......08-1650 ............................ Michael Wagner d/b/a ....................................... Wagner Construction 407 Pine Road M&ttnt...Hol.} ..Spr• ngr.••PA••1-70-6-5 .......... PRAECIPE FOR WRIT OF EXECUTION (MONEY JUDGMENT) To the Prothonotary: ISSUE WRIT OF EXECUTION IN THE ABOVE MATTER, (1) Directed to the Sheriff of ..........Cumberland ••..County, Penna. , Michael Wagner d/b/a (2) against ..........................................Wg11,er 407 Pine Road Mount Holly Spring.,.., PA 17 0 6 5 Defendant (s) ; ............. (3) and against ...................................... ...................................................................................... Garnishee (s) ;. (4) and index this writ (a) against .........................................................:. ......................................................................................... .................................................................................................................. Defendant (s) and . (b) against ......................................................... ........................................................................................... ................................................................ . ....................................................... Garnishee (s) as a lis pendens against the real property of the defendants (s) in the name of the Garnishee (s) (Specifically describe property per attached property description) Personal Property (5) Amount due 4.0.9.5...4 8 Interest from 4/25/08 25.48 .......................... Total .... 5.,.1.2.0 9.6 ... Plus costs. ...... ... Dated ...... May 21, 2 0 0 8 . . ................................... l...a :... Howard S. Liie:iA fiLOrree. urt?i rnf (g) PA 1315 Walnut S. ,120?d, P1 NOTE (215)546-0310 Under paragraph (1) when the writ is directed to the sheriff of another county as authorized by Rule 3103(b), the county should be indicated. Under Mule 3103(c) a writ issued on a transferred judgment may be directed only to the sheriff of the county in which issued. Paragraph (3) above should be completed only if a named garnishee is to be included in the writ. Paragraph (4) (a) should be completed only if indexing of the execution in the county of issuance, is desired as authorized by Rule 3104 (a). When the writ issues to another county indexing is required as of course in that county by the prothonotary. See Rule 3104(b). Paragraph (4) (b) should be completed only if real property in the name of a garnishee is attached and indexing as a lis pendens is desired. See Rule 3104(c). No....... 9.8-.1165.0 .................... In the Coin of Common Pleas of CUMBERLAND . County, Pennsylvania. American Builders & Contractors Supply Co., Inc. d/b/a ABC Supply Co., Inc. ................................................................................... 99 Back Road „HuntncJton.. Val leX r... PA 19006 . . ....... ............. ..... .. V8 Michael Wagner d/b/a .Wagner Construction V...13 ne"AoacT ............................................... Mount Holly Spring, PA 17065 ................................................................................... PRAECIPE FOR WRIT OF EXECUTION (Money Judgments) Pa. R.C.P. 3101 to 3149 etc. ak <-Y C . 4= ;9 ; .1 ,Z> `' I ooaC?o ? ................................................................................... Howard S. Klein -- Atg"w forPl?W(s) 1315 Walnut St., u? e Address: Philadelphia, PA 19107 (215)546-0310 Where papers may be served. 407 Pine Road, Mount Holly Spring, PA 17065 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 08-1650 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC., d/b/a ABC SUPPLY CO., INC., Plaintiff (s) From MICHAEL WAGNER d/b/a WAGNER CONSTRUCTION, 407 Pine Road, Mount Holly Spring, PA 17065 (1) You are directed to levy upon the property of the defendant (s)and to sell (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof, (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $5,095.48 Interest FROM 4/25/08 -- $25.48 Atty's Comm % Atty Paid $152.76 Plaintiff Paid Date: 5/23/08 (Seal) L.L. $.50 Due Prothy $2.00 Other Costs C ' R. Long, Pro y By: REQUESTING PARTY: Name HOWARD S. KLEIN, ESQUIRE Address: HOWARD S. KLEIN & ASSOCIATES 1315 WALNUT STREET, SUITE 1200 PHILADELPHIA, PA 19107 Attorney for: PLAINTIFF Telephone: 215-546-0310 Deputy Supreme Court ID No. } R. Thomas this writ is Sheriff's Docketing Poundage Advertising Law Library Prothonotary Mileage Misc. Surcharge Levy Post Pone Sail Garnishee Bad Check C Postage TOTAL Sheriff, who being duly sworn according to law, states d SATISFIED. 18.00 101.91 .50 2.00 6.00 30.00 I ? 158.41 Pd by Defendant ge So Answers; R. Thomas Kline, eriff BOC audia A. Brew er 11 :8 V BOOT bd -J-4183HS ark J l , ol?e 4z ec?? GYSoB Fes- .2/ X000 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 08-1650 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC., d/b/a ABC SUPPLY CO., INC., Plaintiff (s) From MICHAEL WAGNER d/b/a WAGNER CONSTRUCTION, 407 Pine Road, Mount Holly Spring, PA 17065 (1) You are directed to levy upon the property of the defendant (s)and to sell (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $5,095.48 Interest FROM 4/25/08 - $25.48 Atty's Comm % Atty Paid $152.76 Plaintiff Paid Date: 5/23/08 (Seal) L.L. $.50 Due Prothy $2.00 Other Costs Curti . Long, Pr tary By: Deputy REQUESTING PARTY: Name HOWARD S. KLEIN, ESQUIRE Address: HOWARD S. KLEIN & ASSOCIATES 1315 WALNUT STREET, SUITE 1200 PHILADELPHIA, PA 19107 Attorney for: PLAINTIFF Telephone: 215-546-0310 Supreme Court ID No. DISTRIBUTION ATTY FOR PLTFF: Howard Klein WRIT NO. 2008-1650 Civil American Builders & Contractors Supply Co., Inc., dba, ABC Supply Co., Inc. -vs- Michael Wagner, d/b/a Wagner Construction Real Debt Interest Attorney's Comm. Writ Costs, tty Writ Costs, ltff. Miscellaneous Attorneys Fees Sheriff's Co ts: Docketing Poundage Posting Sale Bills Law Library Prothonotary Service Postage Advertising Postpone Sa e Bad Check Charge Surcharge Garnishee Levy TOTAL Defendant Paid to Sheriff Advance Costs Total Collected DISTRIBUTION Pd. To Pltff. Refund of Adv. Costs Pd. To Prot onotarv $ 5095.48 25.48 152.76 $ 5273.72 18.00 101.91 .50 2.00 6.00 30.00 $ 158.41 $ 5432.13 225.00 $ 5657.13 $ 5273.72 225.00 2.50 01 R. Thomas Kline, Sheriff /I I By d? HOWARD S. KLEIN & ASSOCIATES By: Howard S. Klein, Esquire Attorney I.D. #08852 1315 Walnut Street, Suite 1200 Philadelphia, PA 19107 Phone: (215)546-0310 Fax: (215)546-6338 E-Mail: hskga hskleinlaw.com Attorney for Plaintiff AMERICAN BUILDERS & CONTRACTORS COURT OF COMMON PLAS SUPPLY CO., INC. d/b/a ABC SUPPLY CO., INC. CUMBERLAND COUNTY 99 Buck Road PENNSYLVANIA Huntington Valley, PA 19006 VS. NO. 08-1650 MICHAEL WAGNER d/b/a WAGNER CONSTRUCTION 407 Pine Road Mount Holly Spring, PA 17065 CIVIL ACTION - LAW ORDER TO THE PROTHONOTARY: Please enter the following: (X) Order to Mark Judgment Satisfied Upon Payment of your costs. ( ) Order to Settle, Discontinue and End. ( ) Order to Satisfy Judgment against the Garnishee Upon Payment of Your Costs. ( ) Order to Discontinue the Attachment Against the Garnishee Upon Payment of Your Costs. Date: July 29, 2008 H ARD S. KLEIN, ESQUIRE Attorney for Plaintiff Our File #14496 C7 C? r.-_