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Home My WebLink About08-3164Johnson, Duffie, Stewart & Weidner John R. Ninosky I. D. No. 78000 By: Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jrn@jdsw.com DAKAL, L.L.C. 51 Mount Zion Road Carlisle, PA 17013 V. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff VIPER ARCHERY PRODUCTS, 238 TOWNSHIP RD 1339 SOUTH POINT, OH 45680 Defendants NOTICE NO. &0 - 3 IL, V-21 CJ C CIVIL ACTION - LAW YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, 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 17013 (800) 990-9106 (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta IDemanda y Aviso radicando personalmente o por medio de un abogado una comparecencia esc:rita y radicando en la Corte por escrito sus defensas de, y objecciones a, [as demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI LISTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CLIALIFICAN. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (800) 990-9106 (717) 249-3166 Johnson, Duffie, Stewart & Weidner John R. Ninosky I. D. No. 78000 By: Elizabeth D. Snover I . D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jrn@jdsw.com DAKAL, L.L.C. 51 Mount Zion Road Carlisle, PA 17013 Plaintiff V. VIPER ARCHERY PRODUCTS, 238 TOWNSHIP RD 1339 SOUTH POINT, OH 45680 Defendants COMPLAINT CIVIL ACTION - LAW AND NOW, comes the Plaintiff, DAKAL, L.L.C. through its attorneys Johnson, Duffie, Stewart & Weidner and files this Complaint and in support thereof avers as follows: 1. Plaintiff, DAKAL, L.L.C. (hereinafter "DAKAL") is a limited liability company organized under the laws of and registered in Pennsylvania with a registered address of 51 Mount Zion Road, Carlisle, Cumberland County, PA 17013. 2. Defendant, Viper Archery Products (hereinafter "Viper") is believed to be an Ohio corporation with a principal place of business at 238 Township Road 1339, South Point, OH 45680. 3. DAKAL's members, Kelby Leonard and Dwayne Kepner, are the inventors of BOW WATCH, a device related to bow hunting. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. U 3 6 ?ui L QTR. 1 4. Since the invention of the BOW WATCH, Leonard and Kepner began marketing and selling their invention at trade and hunting shows. 5. Despite interest from other companies, DAKAL began discussions with Viper to either transfer DAKAL's interest in the BOW WATCH to Viper in exchange for a royalty fee for each BOW WATCH sold or to grant Viper the exclusive right to distribute, sell, and market the BOW WATCH in exchange for a payment to DAKAL for each BOW WATCH sold. 6. As these discussions drew to a close, the parties entered into a binding Memorandum of Understanding dated on or about October 7, 2007 and attached hereto and incorporated herein as Exhibit A. 7. The Memorandum of Understanding sets forth the terms with which the parties would proceed until Viper obtained a patent for the BOW WATCH and the parties agreed to negotiate and execute more formal agreements. 8. DAKAL agreed to ship its remaining inventory of the BOW WATCH product to Viper (4,500 units) in exchange for a payment of $7.91 per unit. See, Exhibit A, paragraph 4 9. DAKAL agreed and did assist Viper in the patent application process and to refrain from marketing the BOW WATCH or selling the BOW WATCH to any person or entity other than Viper. See, Exhibit A, paragraph 6. 10. This Memorandum of Understanding prepared by Viper's attorney was circulated between the parties and, ultimately, it was executed by DAKAL and sent to Viper's attorney in October, 2007. 11. It is unknown whether Viper executed the agreement, however, it is apparent through the representations between the parties, and their representatives to include Brian Swiger, Viper's attorney, as well as the course of conduct of the parties, that both Viper and DAKAL agreed to and relied upon the terms of the Memorandum of Understanding. 12. Therefore, a binding agreement exists between the parties as set forth in the Memorandum of Understanding pursuant to 13 Pa.C.S.A. §2201(c)(3) and Pennsylvania law. 2 13. Pursuant to the Memorandum of Understanding and acting in reliance thereon, DAKAL shipped its remaining stock of 500 BOW WATCH units in October 2007 for which Viper paid $3,955.00 ($7.91 per unit per the Memorandum of Understanding) and shipped an additional 4,000 units to Viper on November 14, 2007, which were received and accepted by Viper on November 16, 2007. A true and correct copies of the DHL. shipping bill and a delivery confirmation are attached hereto and incorporated herein as Exhibit B. 14. DAKAL sent invoices dated October 10, 2007 and November 14, 2007 for payment for the BOW WATCH units delivered to Viper per the terms of the Memorandum of Understanding. A true and correct copy of a Sales Invoice showing the October 10, 2007 and November 14, 2007 invoice data is attached hereto and incorporated herein as Exhibit C. 15. Viper accepted the BOW WATCH units and acted in a manner inconsistent with DAKAL's ownership in the units by retaining a patent attorney obtaiining DAKAL's signature on the patent application, and pursuing the application for a patent on BOW WATCH pursuant to the terms of the Memorandum of Understanding. 16. It is believed and averred that Viper sold an unknown number of the BOW WATCH units delivered by DAKAL for Fifteen Dollars ($15.00) plus shipping. 17. In compliance with the terms of the Memorandum of Understanding, DAKAL did not sell BOW WATCH products to anyone but Viper after its execution of the Memorandum of Understanding. 18. Pursuant to the terms of the Memorandum of Understanding, Viper owes the sum of $31,740.00 to DAKAL for the units received and accepted, however, Viper has failed and continues to fail to make payment to DAKAL of this sum owed. 19.. Instead of fulfilling the terms of the agreement between the parties, Viper has refused to make payment and on February 28, 2008 returned 4,000 unsold BOW WATCH units to DAKAL. 3 COUNT I - BREACH OF CONTRACT 20. Plaintiff incorporates herein by reference paragraphs 1 through 19 as if the same were more fully set forth herein. 21. Viper received and accepted the 4,500 BOW WATCH units delivered by DAKAL pursuant to the terms of the Memorandum of Understanding. 22. Viper is in breach of the agreement of the parties as set forth in the Memorandum of Understanding, as it have refused to remit the sum of $31,740.00 for the BOW WATCH units they received and accepted. 23. Viper is further in breach of the provisions of the Memorandum of Understanding by: refusing to market, sell, and distribute BOW WATCH; returning the BOW WATCH units some 3 months after they were accepted by Viper; and refusing to work with DAKAL to exercise formal documents. 24. Due solely to Viper's breach of the Memorandum of Understanding and DAKAL's reliance on the terms set forth therein, DAKAL has suffered consequential damages to include: loss of opportunity to sell BOW WATCH units to buyers other than 'Viper; loss of opportunity to enter into another distribution or royalty agreement with other companies that expressed interest in the BOW WATCH product; loss of internet sales as the website was shut down per the memorandum of understanding, loss of trade show sales, and loss from the ceased future product developments which were planned prior to the memorandum of understanding. WHEREFORE, the Plaintiff, DAKAL, L.L.C. demands judgment against the Defendants, Viper Archery Products in the amount of in excess of $50,000. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. N osky Elizabeth D. Snover Attorneys for Plaintiff 4 VERIFICATION I, Kelby Leonard, member of DAKAL, L.L.C., verify that I am authorized to make the statements herein and that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. DAKAL, L.L.C. Dated: ?j - l w C ^ Kel Leonard Memo of Understanding between Viper and DAKAL October 7, 2007 Goal is to transfer DAKAL's interest in Bowwatch and future related products to Viper such that Viper owns and operates Bowwatch and DAKAL receives a $2.00 royalty for each and every Bowwatch (including future related products) sold. 2. If Viper can obtain a patent on Bowwatch acceptable to Viper, at Vipers sole expense and in Viper's name, Bowwatch transfers all interest in Bowwatch and receives royalties as noted above. 3. If Viper can not obtain a patent, Bowwatch will grant to Viper the exclusive right to distribute, sell, and market the Bowwatch product. DAKAL would be responsible for purchasing and storing products until Viper orders products as needed. Viper would pay DAKAL $2.00 above DAKAL's gross cost for every Bowwatch ordered. Both parties would be entitled to annual accountings, and would work together to get the gross cost of each Bowwatch as low as possible. 4. Regardless of whether Viper is the exclusive supplier, distributor, and promoter of Bowwatch, or has a patent, Viper agrees to purchase all of DAKAL's remaining product (4,500) at DAKAL's gross cost of $5.91 plus $2.00 per Bowwatch or $7.91 for a grand total of $35,595.00. If Viper can not obtain a patent, and decides to be the exclusive distributor and promoter of Bowwatch and or future or related products, Vipers rights are exclusive as to territory and are not limited by time. 6. Upon execution of this agreement, DAKAL would immediately stop selling all Bowwatches to any person or entity other than Viper. EXHIBIT a 7. Should DAKAL transfers all interest in Bowwatch or allow Viper to be the exclusive Distributor of Bowwatch and future/related products, Viper would have the rights to make all decisions as to marketing, selling, manufacturing, distributing, etc of Bowwatches. 8. The parties would work together to execute formal documents of understanding. 9. DAKAL would not have any duty to market, promote, or distribute Bowwatches to retail or wholesale customers. IO.DAKAL would be paid royalties each calendar quarter. 11. DAKAL would be permitted upon request to an accounting audit of Viper. 12.Viper agrees not to compete with DAKAL with products similar to DAKAL and understands that any enhancements or developments made on future time, temperature, etc devices would still be covered under the royalty due DAKAL at $2.00 per item sold. 13.Vipers rights to Bowwatch and fixture/related products and the royalty due DAKAL would be transferable and must be disclosed to any potential buyer. 14.Viper agrees to operate in a manner to protect DAl{AL's $2.00 per Bowwatch royalty. Viper Printed Name/Signature/Title/Date DAKAL, LLC. Printed Name/Signature/Title/Date Airbill: 24461.402556 Page 1 of 1 Dai ii?iM?'? IWayIIBRIIIIdIIIhIIIIIIIIIIIWIII?II?lllllllll??lllll To: VIPER ARCHERY PRODUCTS 238 TOWNSHIP ROAD 1339 SOUTH POI N i , OH 45680 UNITED STiV ES AtiontionTp Phone,: -1-10 i_i-161.00 VY:(,1)f 11 {J xrl uz.uu ku174uu4j Sarvrce: GNDFRI C Special Serrice: c ._._ , _ ... _.._.,.. ?. Route l HE'S 6 EEH c 0 tram: 4 OW5M DAILY UNDERWRITERS OF wwwAhl,com 1072 HARRISBURC PIKE AMERICA ti CARLISLE, PA 17013 81"fiiildi' UNITED STATES Sent llv: Tammy McCalister avvoar,sgetGSl :p rwn Phone P: 717-240-2129 Description: v Weight (Ibs): 1 Dims:O X 0 X 0 Pieces: 1 of i Bill Shipm e it To: Sender `.hip Ref G G V please fold -r cut in half DO NOT PHOTOCOPY Using a PhotpcoPy could delay the delivery of your package and A411 result in additional shipping charge Create New Shipment View Pending Shipmen.s ML Signao (optional} Route Date Time For Tracking, please go to www.dhl-usa.com or call 1-800-CALL-DI-11- C! CIlf?NIC Thank you for shiPing with DHL Worldwide Express EXPR'ESS'. r EXHIBIT D httpsJ/w,?,,,?v.ww(:.,,;;i;i_).coin/wwxchange/Label?id=244( l402556 11/14/2007 Tammy From: Worldwide_Express_Email_Nctifier [support@wwexship.com] Sent: Friday, November 16, 2007 6:39 PM To: Tammy McCalister; logs@wwexship.com Subject: Delivered_Shipments Our records indicate that the following shipment was delivered to: VIPER ARCHERY PRODUCTS SOUTH POINT , OH 45680 Tracking Number: 24461402556 Account Number: 802163639 Shipment Reference: Shipment Description: De-Livery Date/Time: 11/16/07 14:01 Signed/Released by: R CLARK RC Click here for more tracking info: http://trac'.k.dhl-usa.com/atrknav.asp?ShipmentNumber=24461402556 1 DAKAL. LTC It's time for Bow 1Ywch! Sales Invoice NoN ember 14, 2007 Sold To: Viper Archery Products 238 Township Road 1339 South Point, OH 45680 October 10, 2007 OUTSTANDING INVOICE Product: Bow-Watch Original Quantity: 500 Pncc: 57.91 per unit Product Shipping Price: 542.00 Product: 'A ub Site Programming tee to direct x11 inquiries to Viper. Pticc: $150.00 Summary: Bow Watches $3.155.00 Shipping S 42.00 Programming Fee S 150.00 Total $4.147.00 November 5, 2007 OUTSTANDING INVOICE Product: The Adventures of Little Bud Quantity: 6 Price: $7.(X) per unit Notes: Per Kciby Leonard, 6 books to till order from Borg hunter Superslorc. Product Bow Watch Clips No Charge. Included in the cost of the 57.91 per Bow Watch on quantity of 4 500. Product: Shipping Quantity: NrA Price: $18.00 Summary 6 Little Bud Books $ 42.00 Shipping $ 18.00 Bow Watch Clips $ 0.00 Total Due upon Rcccipt $ 6000 Page I of 2 EXHIBIT a Nuvcmhci 14.2(x)7 Product Bove-Watch-original Quantity: 4,000 Pricc. 57,91 perunit Product: Shipping Price: 5100.00 Sunnnary: 4,000 Bow Watch Oiiginals $31.640.00 Shipping S 100.00 Total 531,740 00 COMBINED BILLING SUMMARY PAYMENT DUE UPON RECEIPT October 10th Invoice $ 4,147.00 November 5th Invoice $ 60.00 November 14, 2007 $ 31,740.00 Grand Total Due Upon Receipt $ 35,947.00 Checks Payable to: DAKAL, LLC. PO Box 46 Plainfield, PA 17081 Page 2 of 2 or Johnson, Duffle, Stewart & Weidner John R. Ninosky I. D. No. 78000 By: Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jrn@jdsw.com DAKAL, L.L.C. Plaintiff V. VIPER ARCHERY PRODUCTS, NO. 08-3164 CIVIL ACTION - LAW Defendants RETURN OF SERVICE AND NOW, this 27th day of May, 2008, the undersigned does hereby certify that on May 23rd, 2008 she did serve the Complaint filed in the above captioned action on Defendant, Viper Archery Products, pursuant to Pa. R.C.P. No. 403 by causing it to be sent via certified mail addressed to the business address registered with the State of Ohio at 238 Township Road 1339, South Point, OH 45680. The green card with signature indicating that the Defendant has been served which is attached hereto as Exhibit A. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHNSON, DUFFIE, STEWART & WEIDNER By: 7il' ?,A /,tjL ? .? Elizabeth gS.)Snover I.D. No. 20 997 Johnson, Duffle, Stewart & Weidner 301 Market Street Lemoyne, PA 17043 717-761-4540 Attorney for Plaintiffs ¦ Complete items 1. 2. and 3. Also complete A. hem 4 If Restricted Delivery is desired. D Anspi ¦ Print your name and address on the reverse so that we can retum the card to you. by ( ) C. pate of 13. RO'gZad ¦ Attach this card to the back of the mallpiece, or on the front if space permits. a ?j._.CJ 1. Article Addressed to: D. Is delivery address different from item 1? Oda.-. ?J If YES, enter delivery address below: O No V i Pe r A r-c.he r y PI' DaUCAS A39 rDu)( S. i p e0ad )331 Ste, Polni ON 454080 3. Service Type Of if Certified Mall O Err, Mail O Registered O Return IFIGGO pt for Mercheri laa O Insured mail O C.O.D. 4. Restricted D*myt (Extra Fee) 0 Yt 2. ArloleNumber 7007 3020 0001 1089 4404 ( WWW Aer?rr aarris Ps Form 3811, Fewuwy 2oo4 Domaatic Ra "Receipt , 1isy CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on May 27, 2008: Viper Archery Products 238 Township RD 1339 South Point, OH 45680 JOHNSON, DUFFIE, STEWART & WEIDNER By: -- Elizabegh D. Snover Attorneys for Plaintiff ? r ?: ?.._ r_. c ,i C C? "? ?. - try Cl7 CSC Johnson, Duffle, Stewart & Weidner John R. Ninosky I.D. No. 78000 By: Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jrn@jdsw.com DAKAL, L.L.C. Plaintiff V. : VIPER ARCHERY PRODUCTS, Defendants PRAECIPE TO THE PROTHONOTARY: NO. 08-3164 CIVIL ACTION - LAW Kindly mark the docket in the above captioned matter SETTLED and DISCONTINUED. JOHNSON, DUFFIE, STEWART & WEIDNER By: Elizabq?h D. Snover Aftornffy for Plaintiffs Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Date: July 21, 2008 -n '0t7.: N7s.. cr --? ni-r1 ni- ?? ?: l?.7 t`tt