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HomeMy WebLinkAbout09-0257IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CARTER LUMBER COMPANY, Plaintiff No. (~Q -..,~.s7 1.6C~ ~ ~, vs. COMPLAINT FRED MILLER, as Personal Guarantor of FCM Builders, Inc., Defendant FILED ON BEHALF OF Plaintiff COUNSEL OF RECORD OF THIS PARTY: SHAWN P. McCLURE, ESQUIRE PA ID #205951 Bernstein Law Firm, P.C. Firm #718 Suite 2200 Gulf Tower Pittsburgh, PA 15219 412-456-8100 BERNSTEIN FILE NO. 00068868 January O5, 2009 Page 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CARTER LUMBER COMPANY Plaintiff vs. Civil Action No. FRED MILLER as Personal Guarantor of FCM Builders, Inc., Defendant NOTICE AND COMPLAINT NOTICE TO DEFEND 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 upon you, 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. Lawyer Referral Service PA Bar Association PO Box 186 Harrisburg, PA 17108 1-800-692-7375 January OS, 2009 Page .~ COMPLAINT 1. Plaintiff is a corporation having offices in Kent, Ohio. 2. Defendant is an adult individual having an address at 1510 Thompson Lane, Mechanicsburg, Cumberland County, PA 17050. 3. To induce the extension of credit to FCM Builders, Inc., a corporation in which Defendant is the principal and sole shareholder, Defendant executed and delivered to Plaintiff a Yard Account Application, a true and correct copy of which is attached hereto, marked Exhibit "1 ", and made a part hereof. 4. Defendant signed said Yard Account Application as personal guarantor of the obligations of FCM Builders, Inc. 5. FCM Builders, Inc., has filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Middle District of Pennsylvania, at No. 08-00711 MDF, and therefore all prepetition debt collection actions against said corporation as stayed pursuant to 11 U.S.C. Section 362. 6. At the special instance and request of FCM Builders, Inc. (hereinafter FCM), Plaintiff sold and delivered to FCM certain building materials, at the times, in the quantities and for the prices indicated on the invoices listed on Plaintiffs A/R Inquiry, a true and correct copy of which is attached hereto, marked Exhibit " 2" and made a part hereof. 7. FCM received duplicates or copies of said invoices in the ordinary course of Plaintiff s business. 8. FCM received and accepted the aforementioned building materials. 9. The prices charged by Plaintiff were the fair, reasonable, and market prices that prevailed at the times of the transactions. January OS, 2009 Page 4 10. The prices charged by Plaintiff were the prices that FCM agreed to pay. 11. Plaintiff avers that the balance due amounts to $20,027.28, as shown on Plaintiff s Customer Inquiry, a true and correct copy of which is attached hereto, marked Exhibit " 3" and made a part hereof. 12. Plaintiff claims legal interest as damages on the liquidated debt from April 7, 2008. 13. Plaintiff avers that interest amounts to $901.23 to January 7, 2009. 14. Plaintiff avers that all conditions precedent to Defendant's duty to honor his obligations under his personal guaranty have occurred. 15. Although repeatedly requested to do so by Plaintiff, Defendant has willfully failed and refused to pay the aforesaid balance, interest, or any part thereof to Plaintiff. WHEREFORE, Plaintiff demands Judgment against Defendant in the amount of $20,928.50, with continuing legal interest thereon at the rate of '/2 % per month and costs. BERN TEIN LAW FIRM, P.C. BY: 1 1MP"' Attorney for Plaintiff(s) Suite 2200 Gulf Tower Pittsburgh, PA 15219 BERNSTEIN FILE NO. C0068868 412-456-8100 ` HAR-25-2008 711E 02 :18 PM i a 1 a n d FA}~ N0. 33087331657 P. 07 • ~~ AuD 20 08 ~20p MNMf 717~6D7.42~ V.1 Y'ARp ACCOUNT APPI..lCATION ~ d...,. J-I~.• •~-~~;sT~.C11R i i1'AY@ iT01~ FRN~ilA p1~C~ Tfp~ df Ju7r !!Te ~LIiM~fi . q OiIq~R R111t.G {i0 ACCDWT- pen+'Mw N saoount l~ae.l (~ MON.Nldf1! i ~ ro ra+ f,P rae YMio IIlWARp{t 0 'ew ~ nr of ~( De aae aiOn mr•~p u ~ one . a n rAaanaasrnP ~coKc ., ~«~, t. a s, ieSS• 7l7 (,'~~ • Of ONMb~R 4R 0/FjGERS llTl.E / Y101~ on.exYya..r~~ ~t wiorwnx, w caw~au a~ 1 ~'6k a.ri cS ~ r 4 ! 7 0~S ~A 19 3~. ~ ~ ~S _ ~. su ,,,A11er, ~ a si 76ttMklME MQ &4K MD. ~~~ y~g• ~c'g i~~-y8-.zG7g f O TAX A-0~ RlAJIRdO ~1ee.h )lug ?lr:~.. _y _ b~ 1 ~ Q.~- Q'- .~e - a b ~~ rn+aaf Txa IIrANt }sao~ ueaawsr~uo ~ . ~~bu~ o~` !'1~m bhp r ~ a~~• - ~ S o I "' i ,~~~sa~ ~iK. ~~ aaL -a a ~ +fwrrocnfwfraer~ar~nr~s I ~•• OS/ZO/2006 91:2aPH (~-a~+:00) a~ This agreattetr states the teens for your otedk account with Carty Lutttber Cortrpmy and any of its subaiaiarfas. "Yon" ard'~+otrr" man eseh petsat or corporation wlro b rremed On this acooaot. "~Yd','lfs", and `OuP' ttkoa the tarter Luthber Company or any of iq aubsidistiea. py You can use yew credit eacamt to purcbaae goods ere Carter Lumber Compaay aed any of ire whsidmries noted on this applicatiaa (]edit Limit: We will tdt you the amount of your credit limit when we approve your ecoount Pmaml Chwsatee: l3varsarodi Jointly and severally, rmcorrditionslly guattatee the payasart of any and aU ~ of monery as arc now, or al u+Y tuna heaitafter may be awing m Cotter Lumber Catttpaoy by Appliast or t7srasantorls, w a rleesrk of Cotter Lwnber Cotnpnry'a eatan:iar od'credit Chtrsanrods waives leotiee of ertteredon of time or modi8atios of tears, sctklameMa or tesolntioa of disputes, awdifieation of credit liars, default of Applleant. 7hb is iMatded ro ba sad is a ooatitathtg gwrarrtpc and aMII not be revoloesd tecoept by vrrilsat ttotioe W Cat1a Lumber Comprry not to males sny fhHEra ales end deGverra on ataanibr of this gaamdse: The Oagsesntoda signature firttber aclmowledga than apesufic aWbaintim boa beet granted m C~ttsr Lnmher Compatty to iwvatigase the t3uatantoda individual canwmm' txtdit report, aeoeesary with this guannta. ~.e All btutdieg consttuctien aseouars mwt firllow the pay what paid requitemeols of atstc Ls~r. h fs ytatr rapooa'6e'lky ro diewo rim time ofpaymatts is the evaat the above tares vary tiom the oonoai tenses ou ' below. Appknnt and a guarsatods ayes b pay ell aortal coat of oollaction including actaB amotney's i1'xn. cart cost and yr ~ agency races due to Carter Cmmbar t,,onspnry ere applicants' err gaatenta/s brsoh oftbe eatrtts of sale, whether or trot a lewarit i btwght to satkfy the debt owed ro Catlur Lumber by appliourt or geautrdods. ltt the evatt thu aey wit err mibodoa actin is ttgjsisad to ea$otae the terms oPmla taredit Appticatioa std ro ca)!xt turpaid socourk balaaen awing ro Carter LombarCornpany, the rmdeutigaed egrets rrsat jutiadi~iat and vttnna Aor any such setters shell not be limited ro tlw slats and eourtgt In which the ntatuiak gaodt t: eavkaa are ptuohaed orreedved. 3i1 DaY Tg~E~ica balane~e doe as or bdaa the i 5't of every gnabt unless othsxwlae eppsoved by the Credit Deputmwt Pfoame obargw of 1.576 per rnorRb wi@ bs added to past sue asauau.' Ali past due accounts ate anl~eet ro trambrtloo of additioml credit. Yoa sgsee to be bound by above terms and caaditiotrs which areRheteby inompotated by refeaestoe and erode s pant of this appliatiaa. Your cheek s yoe>r remipt. Pavnast Terrb fnrNa.-mgt a~ (iov~snst 60 Der Tarssia Fib balance due on err baforo the l5a of 2°a tnonih mtleae othevrbe eppmved by the Credit Depatimmtt. i*manoe ~ of 1.576 per tttonth vn'! be added to pest diattoutth. A& past dsw acocottn ati subject ro tmsinatioa oPaddkioanl caadlt. You:yea ro be board by above tams and oaasditi ,which ate hereby faooaltmaoed by relismoe and trade a part of this appiioahian. Your cheek b your receipt. psvmeetTettoa ~ H Aoennetc 3Q Derv Terms: Cash Riaaae6tg, air owaer bulk Lome Utat is fmaaoed vt~tlt ash ettd does not have m atistittt bank financed ooastaraion loan w16 6e wl~eot m all Day Tams, Entire baMrwe due m or the 1 S" of Bray month wlete olharrrlae approved by the Csedk Deparhaept lRnanee eltatpts of 1 S% per month will be added m ~u amourtm. All past doe aaourtts are wlpat ro oesmintloa of adtfitiaaal credit. ~>r Tenm+~ Bank CoustrueBox lsa= Flea~W~, any oamr Mtilt Lorne tLat Ir 5nnced witL a conon loan w,71 be anbject to ti0 dry sires, Bndru balmce due on ar before t ISw a[tdte 2"~ aitattth nttlen otharvrlse approved by WeCaedit lxpartmat. Plrasace oherga esf 1.576 permonth w~ ba added to past dues atrorda. Alt poet due accos>ma are strbjetst ro~ teasiroetiart of additroael credit Yon agree to be bound by above termer and coaditlmn, which stn batty irtoorporated by relaeooe and made a put of fhb application. Yourdreckbyourtecaipt P.ttaept where specific wtiltea notice ie tegstieed by kw, vue can erred your account anytime Pn person, by photee, or wtfttm refine sek ro you at the addtesa where eve ma>7 yoursmtmseot You ere ratted your acooear by ao~ity®g w m writing. 1f your s b ancdied by your, or by us, yon will Lave to pay us the fall amoaot you owe a. ioehrdiog aimmmts tknt have nest bees biBod b you yet, ~, in Teems: We ua ohaage the asrms of Ibis agreement atgrtinta Notifrcetieu of dsnsges anU be tsa~de is aeaotdauce with ihderttl a estate law. You aproe that ohsagps will appbr to pntdrsee nmde prkr to ~r change as wall a ro tsar psttohuea Hthe taw makaa aey part d this agreentmst void, all the other fora ahsQ be severable ~d wrforcesble. Dbptrtea Want be submitted in writing wlAfa ti0 dryer of Irrvoioe dose in ceder ro be coatidered valid. Any divpnics that aro not iu writitts will ba considated valid and paymart tma above wiN apply. lip 1~; Yoa nndetaWd std agrca that we taaiive tke tight to &b a mxhanic'a list, arrested aetsount, ortake Mlrtever aotioa is neoeasny Yw. the property owner whets tl-e matetieb ate being ub7ized, the geaetal conMc-~ tlt~ lmdnsg Iwtitalion fineocing acid cottsfmction, a aey otbrx parry first orould have control over tlx fends utilised far the pmci~e ofaaid a~ehaodaee. Gtiedit Rmrrti: Yea authorize ea ro obtain repeats ro be aced fa oonnectioa with thin appliasion, end to flsrtlter credit infoerrastien Mean arty ptaaona or firm set forth in this appliatiao and fmm arty otheraotace that we de~use regarding the breieeas, its o~ffeoas, diteeror, ageata, employees, err priecipals. You avthaiss us to Cetaia all irtformatioa tnd rcpoats for our fr'1et. $ T1ae parsec aigoing certifies flat alt ioforantion pmrided is trues and canoe You bees fby give consent aed suthoaaed the below awned ptaeat(s) ro oats tlsa Carter Lumber Yard Aceourrt and undawrd that yore btu b liable for payment of al[ cbaeFea frtctrrred by sathorized signets. Yau agree ro prtsmptly notify Cotta' [umber of any changes yin authorized ueas. Getter Lurnbrr Compury, Catta~Joerrs Lumber Cotupmy, Holmes Lumber Company, Sugaroreelcl lumber Coutparny, KiSht Lzasber Comparry nAR-25-2008 TUE 0215 P~( inland FAX N0. 3308733'657 P. 03 Cartex-Jonas Mar 25th, 2008 1:45 pp ID !tans-no Date Cult •10 68iarCh-maws coin 381143551 01/30/01 G311J221-003 Canyoe Creek coin 311143663 01/30/0/ 03119221-003 Canyawe Creek coin 3611435/3 Oi/90/OA 63111221-009 Canyon Creek coin 3/1193609 04/01/0/ 6311J221-003 Canyoe Creek loin 911143747 04/07/01 0311+1221-003 Canyon Creek soin 3811437$8 07/07/01 6S11J221-007 Gs~on Crook soin 36114376/ 07!01!01 03614748-003 Canyon Creek join 3/1143757 04/01/01 0361142/-003 Canyon Crank soin 38112'163 02/11/01 69114241-009 Gsryon Creek soin 31112317/ 04/15/01 09614441-103 Canyon Croak eCie 56112!100 02/21/01 fl7f1.12Z1-003 C+sDyoO Crnk Bain 3/112/099 07/41/01 0911~174H-003 Casryan Creek Loin 361141112 02/21/01 09111241-003 Canyon Creak fain 1010/6113 02/49/01 m114471-009 Car~oa Creek soin 36114141! 03!05/0/ 03811231-003 Canyon Creek win 3A1i21277 03/07/01 03/11276-009 Canyon Creek Rnd of report. f~ Print A/R'Inquiry Docunente !ar•trana.priatf li Page: 1 Uasr: bbzoaa Original-dcc Cuat-po ... _ -~.~-A -~.- - DocoASent-ant Balance-gait conyan creak jon 3, 820.92 3,120.92„ Canyon Crwk Tnssses 9, 956.93 9, 956.99 ~ CIUiyCN CR>~K JOB 715,29 715.29' Canyon creek 131.62 131.62 rltnst ~ 0.00 0.00 ritnar job 232.OD 232.00' Canton Cras)c 111,40 148.10 Canpors Creak 239.21 239.2N ' CANYON CIEEi 15,90 15,90 Cassyas Cssek ], 601.00 3, 601.OD~ Canyon Croak 19.15 19.15 ~ oaynan orsek 758.8{ 358.8/' caynon creek 57.21 51.21" 237.10 217.10' trod call in 152.85 152.15 CMyon areek 374,53 371.53 ~~~~ ~` ' T`[AR-25-2008 TUE 02:15 Ptt i n 1 and FA}{ f~10~ 3308733'857 P, 02 custaaa~r Inquiry [d01-~ A Cast-Ip, G3610228 8'Ci~ 8uildaxs xnc _._. HOLD Custoatx Jeb (a) inquiry, [SO7,-] , LoC: 501 OH 601-1 Kant CR-I,IASIT: 32, 000.00 Coot-IA: G381U228-003 CR-Di71Ta: OI/29/OB B~FILANGL~: 20,027.28 avT: b27.38 OPS17-L'C: 217.40 COR: 5, 008.7b LA9'ie-A11Y: 0.00 30s 14,A93.14 L2-eT-PIIA: 374.53 09 /07/08 60: 0.00 YTD-ZaT'V: 19, 809.88 ~: 15 90s 0.00 YTD-CR: 0.00 #: 0 120+: 0.00 YTp-k*C: 217.40 ~ s 1 YTD-EAY: 0.00 ~: 0 pR-YR-IN: 0.00 #: 0 8A-YR-Gift 0.00 ~: 0 PR-YR~-F'C: 0.00 ~: 0 YTD-HARGIN: 11.27 PR-YR-PY: 0.00 ~: 0 BRY-MAR~3IN: 0,00 eoxxy - na help i~ avnilabl.e. a ~+ s The undersigned does hereby verify under penalty of perjury, that he/she is Assistant Credit Manager , of Carter Lumber Company Plaintiff herein, that he/she is duly authorized to make this Verification and that the facts set forth in the foregoing COMPLAINT are true. and correct to the best of his/her knowledge, information and belief. e fifer Wal aca Assistant edi>~ Manager (Sign in Blue Ink) ~r SCANNED ~~ The undersigned does hereby verify under penalty of perjury, that he/she is Assistant Credit Manager , of Carter Lumber Company _ ___., Plaintiff herein, that he/she is duly aud~orized to make this Verification and that the facts set forth in the foz$going COMPLAINT are true and correct to the best ofhis/her lo7owledge, information and belief. L~~ n~ e fifer Wal ace Assistant edit Manager (Sign in Blue Ink) r ~~ Q~ to ~0 ... ~u O ~J -~' C') ^~ _r.- ° ~ _ ~ r~~ ~ -~,~" ~ -a ,~ - ~= `_? -~ ^°"- ~ -~ ...~ ..~ C'Jl '-C d THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CARTER LUMBER COMPANY, Plaintiff vs. No. 09-257 Civil Term MOTION FOR SUMMARY JUDGMENT FRED MILLER, as Personal Guarantor of FCM Builders, Inc., Defendant c> ~ - ;~~. -,-, - ---~ ` FILED ON BEHALF OF: ` - - rJ `''>~~--, Plaintiff ''~ `` - - -.~ {'T'1 COUNSEL OF RECORD FOR r: THIS PARTY: -= .~- ~ NICHOLAS D. KRAWEC, ESQUIRE PAID #38527 JACK P. BOCK, III, ESQUIRE PA ID #201758 Bernstein Law Firm, P.C. Firm #718 Suite 2200 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 412-456-8100 BERNSTEIN FILE NO.00068868 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CARTER LUMBER COMPANY, Plaintiff No. 09-257 Civil Term vs. FRED MILLER, as Personal Guarantor of FCM Builders, Inc., Defendant PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Plaintiff, Carter Lumber Company (hereinafter "Plaintiff'), by and through its attorneys, Bernstein Law Firm, P.C. and Jack P. Bock, III, Esquire, and files this Motion for Summary Judgment, stating as follows: I. Procedural History 1. On or about May 4, 2009, Plaintiff, Carter Lumber Company, (hereinafter "Plaintiff'), filed an Amended Complaint in Civil Action against the Defendant, Fred Miller, as Personal Guarantor of FCM Builders, Inc. (a bankrupt entity), (hereinafter "Defendants"), for breach of contract resulting from Defendants' failure to pay for construction materials ordered and delivered on credit, and seeking to recover an unpaid contract balance of $42,139.23, plus the sum of $6,862.52 for legal interest at the rate of eighteen percent (18%) per annum on the unpaid balance, plus court costs, collection costs and reasonable attorneys' fees, amounting to $16,170.59. 2. Defendants filed an Answer to Plaintiff's Complaint on or about May 22, 2009, admitting that Defendants executed and delivered to Plaintiff an Application for Credit, that Plaintiff sold and delivered various goods, wares, and merchandise to Defendants, that Defendants received and accepted certain aforementioned goods, wares and merchandise and that Defendants only made partial payment for said goods. 3. Defendants denied that they were able to verify that all goods or merchandise were in fact delivered, received and accepted by Defendants and that the prices charged were reasonable market prices; Defendants also denied that they agreed to pay finance charges, that Defendants agreed to pay collection costs and reasonable attorneys' fees, or that Defendants refused to pay the balance due and owing. 4. Defendants further denied that Defendants knowingly and willingly executed a personal guaranty as part of the Application for Credit submitted to Plaintiff. 5. After the close of pleadings, Plaintiff propounded discovery on Defendants on or about August 28, 2009. However, Defendants never responded to Plaintiff's First Set of Requests for Admissions, Interrogatories, and Requests for Production of Documents (hereinafter "First Set of Discovery Requests"). Plaintiff accordingly filed a Motion to Compel, and this Honorable Court entered an Order on November 12, 2009, directing Defendants to respond to Plaintiff's First Set of Discovery Requests within thirty (30) days. Defendants thereafter failed to comply with the Court's Order, and Plaintiff filed a Motion for Sanctions, which was granted by this Honorable Court in an Order dated January 20, 2009, directing that the matters set forth in Requests for Admissions contained in Plaintiff's First Set of Discovery Requests be deemed admitted by Defendants. (A true and correct copy of the Court's Order dated November 12, 2009 is attached hereto as Exhibit "A"); (A true and correct copy of the Court's Order dated January 20, 2009 is attached hereto as Exhibit "B"); (A true and correct copy of Plaintiff's First Set of Discovery Requests is attached hereto as Exhibit "C"). R ~ 6. Plaintiff's Requests for Admissions request, in relevant part, that Defendants admit that the Application for Credit at issue was properly executed by Defendants, that each of the Invoices for goods ordered by Defendants is correct, that Defendants received the materials listed thereon, that the prices charged for such goods were the market price and were agreed to by Defendants, and that Defendants owe Plaintiffs the amounts stated on the Invoices and have failed to pay them. 7. Pursuant to the Order of January 20, 2009 (Exhibit "B"), each of the matters set forth in Plaintiff's Requests for Admissions, which together constitute Plaintiff's prima facie case for relief, have been deemed admitted by Defendants. 8. Pennsylvania Rule of Civil Procedure 1035.2(1) provides that any party, after the relevant pleadings are closed, may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. 9. In the case at bar, whereas Defendants have been deemed to have admitted as true all relevant facts necessary to establish Plaintiff's right to relief, no genuine issue of material fact exists to be tried in this case, and this Honorable Court should enter Summary Judgment in Plaintiff s favor. II. Basis for Relief A. Defendant Accented the Delivered Goods and Plaintiff is Entitled to Payment 10. The transactions which are the subject of this case involve the sale of goods between merchants and, therefore, the Pennsylvania Uniform Commercial Code ("UCC"), Article 2, Sales, 13 Pa.C.S. § 2101, et seq., applies to this matter. r 11. Under § 2507(a) of the Pennsylvania UCC, the tender of delivery of goods by a seller is a condition to the duty of a buyer to accept the goods and to the buyer's duty to pay for them. The tender of the goods entitles a seller to acceptance of the goods and to payment according to the contract. 12. Under § 2601 of the Pennsylvania UCC, if the goods or the tender of delivery fail in any respect to conform to the contract, a buyer may reject the whole, accept the whole, or accept any commercial unit or units and reject the rest. 13. Pennsylvania UCC § 2602(a) sets forth the requirements for rightful rejection by a buyer, and requires that the rejection of goods must be within a reasonable time after their delivery or tender. The rejection of goods is ineffective unless the buyer seasonably notifies the seller. 14. Pennsylvania UCC § 2606(a) sets forth the general rule for what constitutes acceptance of goods. Subsection (a)(1) provides that the acceptance of goods occurs when the buyer, after a reasonable opportunity to inspect the goods, signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity. Subsection (a)(2) provides that the acceptance of goods occurs when the buyer fails to make an effective rejection. 15. In the case at bar, Defendants received and accepted the goods sold and delivered by the Plaintiff, failed to make an effective rejection of the delivered goods, and therefore, accepted the goods within the meaning of § 2606(a)(1) and (a)(2) of the Pennsylvania UCC. 16. Pennsylvania UCC § 2607 provides that a buyer must pay at the contract rate for any goods accepted. 17. Pursuant to Pennsylvania UCC § 2709, when a buyer fails to pay the price as it becomes due, the seller may recover the price of the accepted goods. 18. As noted above, on January 20, 2009, this Court entered an Order directing that the matters set forth in the Requests for Admissions contained Plaintiff's First Set of Discovery Requests be deemed admitted by Defendants. 19. Defendants admit that the Credit Application, dated August 20, 2006, is a true and correct copy of the original, that they received a copy of the original, that Defendant's signature appears thereon as applicant, and that the signature is genuine. 20. Defendants admit, with respect to the Invoices attached to Plaintiff's First Set of Discovery, that said Invoices are true and correct copies of the originals sent to the Defendants, that said Invoices were received by the Defendants, that Defendants ordered from Plaintiff each of the items listed on said Invoices, that Defendants received from Plaintiff each of the items listed on said Invoices, that Defendants kept each of the items listed on said Invoices and did not ask the Plaintiff to take them back, that the prices listed on said Invoices are the prices Defendants agreed to pay, that the Defendants have not paid the Plaintiff for any of the items listed on said Invoices, and that the Defendants owe the Plaintiff the full purchase price for all of the items listed on said Invoices. 21. Defendants admit that Defendants agreed to pay the principal sum of $42,139.23 for the goods, wares, and merchandise provided by Plaintiff to Defendants, and that such sum has not been paid. 22. Defendants also admit that they are contractually obligated to pay contractual interest to Plaintiff at the rate of eighteen percent (18%) per annum, amounting to $6,862.52 to February 19, 2009. J , 23. There is no genuine issue as to any material fact that Plaintiff is entitled to judgment, as a matter of law, against Defendants in the principal amount of $42,139.23 for the unpaid principal balance due and owing on the goods sold and delivered by Plaintiff to Defendants, plus contractual interest on the liquidated debt at a rate of eighteen percent (18%) per annum, totaling $6,862.52 to February 19, 2009, plus court costs, collection costs and reasonable attorneys' fees amounting to $16,170.59. WHEREFORE, Plaintiff respectfully prays that this Honorable Court to enter the attached Order granting Summary Judgment in favor of the Plaintiff and against Defendants in the amount of $65,172.38, plus continuing contractual interest thereon at the contract rate of eighteen percent (18%) per annum from February 19, 2009. Respectfully submitted, By: ~ ~' Jac .Bock, II, Esquire rney for Plaintiff A I.D. #201758 Suite 2200 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 (412)456-8100 BERNSTEIN LAW FIRM, P.C. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CARTER LUMBER COMPANY, Plaintiff No. 09-257 Civil Term vs. FRED MILLER, as Personal Guarantor of FCM Builders, Inc., Defendant ORDER OF COURT AND NOW, this day of , 2009, upon consideration of Plaintiff's Motion for Summary Judgment it is hereby ORDERED, ADJUDGED and DECREED that Summary Judgment is entered in favor of the Plaintiff and against the Defendant in the amount of $65,172.38, with continuing contractual interest thereon at the rate of eighteen percent (18°Io) per annum on the principal balance of $42,139.23 from February 19, 2009 to the date of this Order, plus legal interest thereon hereafter, plus court costs and reasonable attorneys' fees. BY THE COURT: J. I _ s NOV 10 200 IN TI-~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ~ CARTER LUMBER COMPANY, Plaintiff vs. FRED MILLER, as Personal Guarantor of FCM Builders, Inc., Defendant No. 09-257 Civil Term .OLR`DER OF COURT NOW to-wit this ~ ~ da of ND V , 2009, upon consideration AND Y of the record and Plaintiffs foregoing Motion, it is hereby ORDERED, ADJUDGED AND DEC p uant A.R.C.P. 4019(a), that Defendant, Fred Miller to file full and complete and ev one of PLAINTIFF'S FIRST SET OF REQUESTS FOR answers to each ery ADMISSIONS, INTERI~OG ARIES ~~+ QUESTS FOR PRODUCTION OF DOCUMENTS within(~Q} days of this Order. BY J. 1~ ~q~ i '(Ti. ~`.1'1 Vii: ~~~; ~ ~~~T~ ~ ~ ~~i~V IXH161T ~^ 1 :..__.~ ~~~~~' 3 JAN. ~~ 9 zulu `„ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CARTER LUMBER COMPANY, Plaintiff No. 09-257 Civil Term vs. FRED MILLER, as Personal Guarantor of FCM Builders, Inc., Defendant ORDER ~~ AND NOW, this ~~ day of , 2010, upon consideration of Plaintiff Carter Lumber Company's Motion for Sanctions, it is hereby ORDERID, ADJUDGED and DECREED that said Motion is GRANTED and that Defendant is deemed to have Admitted those Requests for Admission contained in Plaintiff's discovery submissions, and that furthermore Defendant shall provide full and complete responses to the remaining Interrogatories and Requests for Production of Documents in PLAINTIFF'S FIRST SET OF REQUESTS FOR ADMISSIONS, INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS directed to Defendant's counsel within ten (10) days of the date hereof. BY 'T~~COURT• ._.-- , J. EXHIBIT ~ , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVII, DIVISION CARTER LUMBER COMPANY, Plaintiff No. 09-257 Civil Term vs. FRED MII,LER, as Personal Guarantor of FCM Builders, Inc., Defendant PLAINTIFF'S FIRST SET OF REQUESTS FOR ADNIISSION, INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS FILED ON BEHALF OF Plaintiff COUNSEL OF RECORD OF THIS PARTY: NICHOLAS D. KRAWEC, ESQUIRE PA ID #38527 SHAWN P. MCCLURE, ESQUIRE PAID #205951 JACK P. BOCK, III, ESQUIRE PA ID #201758 Bernstein Law Firm, P.C. Firm #718 Suite 2200 Gulf Tower Pittsburgh, PA 15219 412-45b-8100 BERNSTEIN FILE NO.00068868 IXHIBIT 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVII, DIVISION CARTER LUMBER COMPANY, Plaintiff No. 09-257 Civil Term vs. FRID MILLER, as Personal Guarantor of FCM Builders, Inc., Defendant PLAIl~T~'S FIRST SET OF REOUESTS FOR ADMISSIONS. INTERROGATORIES ~UESTS FOR PRODUCTION OF DOCUMENTS TO: Fred Miller, Defendant; do Robert E. Chernicoff, Esquire Cunningham 8t' Chernicoff, P.C. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 Counsel for Defendants You aze requested to admit the truth of each of the statements of fact hereinafter stated. You are instructed that: . 1. These requests are made under Pennsylvania Rules of Civil Procedure 4001, et seq., and each of the matters of which an admission is requested shall be deemed admitted unless your sworn statement in compliance with such Rules is timely made. 2. If you do not admit each of such statements, you must specifically deny each one not admitted or set forth in detail the reasons why you cannot truthfully either admit or deny each such matter. 3. Your answer, signed and properly verified, must be delivered to the undersigned attorney of record for the Plaintiff within 30 days after delivery hereof. 4. ff you fail or refuse to admit the truth of any such statement of fact and the Plaintiff thereafter proves the truth thereof, you may be required to pay the reasonable expenses incurred in making such proof, including attorney's fees, witness expenses, etc. 2 5. ff, in response to any of the following statements of fact, it is your position that the statement is true in part or as to some items, but not true in full or as to aU items, then answer separately as to each part or item. 6. If, you have been sued in more than one capacity or if your answers would be different if answered in any different capacity, such as partner, agent, corporate officer or directory or the like, then you are requested to answer sepazately in each such capacity. Failure to do so constitutes an admission in any such capacity. Pursuant to Pennsylvania Rules of Civil Procedure 4401 et seq., you are requested to answer each of the Interrogatories hereinafter set forth. You are instructed that: 7. Each interrogatory must be answered sepazately, fully, in writing 'and under oath. 8. Answers must be signed by the person making them and must be delivered to the undersigned attorney of record for the Plaintiff within 30 days after service hereof. 9. Each interrogatory is continuing in nature so as to require supplementary answers if you or your attorney should obtain information that the answer was incorrect when made or becomes no longer true. 10. If you aze sued in more than one capacity or if your answers would be different if sued in any different capacity, such as partner, agent, corporate officer or director or the like, then you are requested to answer separately in each such capacity. 11. In these interrogatories: A. The word " rs n "means all entities, and, without limiting the generality of the foregoing, includes natural persons, joint owners, assoeiatians, companies, partnerships, joint ventures, trusts, and estates; B. The word "document(s)" means all written, printed, recorded, graphic, or photographic matter, sound reproductions, and/or electronic information both accessible (active data) or inaccessible (deleted data) however, stored, accessed, produced or reproduced, pertaining in any manner to the subject matter indicated; C. "Information" shall be defined as any and all records of electronic data, including related "meta data." These records can exist either as paper documents or computer media containing electronic data. Said information shall be produced in electronic form, if available, in an accessible standazd format. You shall employ necessary procedures to ensure that the requested documents are not modified, altered, deleted or otherwise changed from their original form. ff said data is not provided in its original form, you should explain the Change Action (as defined below) that resulted in the current form of data. D. "Database" shall be defined as any system that contains discoverable electronic material. Said database shall be produced in an accessible format. You shall employ necessary procedures to ensure that the requested databases aze not modified, altered, deleted or 3 (. .otherwise changed from their original form. "Database" shall also be defined as any back-up or archival copies of the same. E. The words "1 " "1 ~t ", "identification", when used with respect to a on s means to state the full name and present or last known address and business address of such o sand, if a actual person, his present or last known job title, and the name and address of his present or last known employers; F. The words "identitv,,, "id ", and "identification", when used with respect to a date, subject matter, name(s) or o s that wrote, signed, initialed, dictated or otherwise participated in the creation of the same, the name(s) of the addressee or addressees if any and the name(s) and address(es) of each ~ who have possession, custody, and control of said documentls). If any such document was, but is no longer in your possession, custody, or control, or in existence, state the date and manner of its disposition; and G. The word "idea ' "when used with respect to an act (including an alleged offense), occurrence, statement, or conduct {hereinafter collectively called "act"), means to (1} describe the substance of the event or events constituting such an act, and to state the date when such act occurred; (2) i entifX each and every erson participating in such act; (3) iaentifv all other rs s (if any} present when such act occurred; (4) state whether any minutes, notes, memoranda, or other record of such act was made; (5) state whether such record now exists; and (6} i en ' the n s presently having possession, custody or control of such record. 12. Any demand herein for documents or tangible things is a request for production pursuant to Pa. R.Civ.P. 4009 and a response is demanded pursuant to that rule. 13. Unless otherwise indicated, all interrogatories herein relate to those certain events, persons, and period of time more fully described in the pleading in this case. 14. Pursuant to Pennsylvania Rule of Civil Procedure 4009 et seq., you are requested to produce, within 30 days, in the office of Plaintiffs counsel in Pittsburgh, Pennsylvania, the documents requested below. These requests are of a continuous nature, so that if additional documents become available, you should promptly notify Plaintiffs counsel of the availability of such documents. 4 t r PLAINTIFF'S REQUEST FOR ADMLSSIONS. INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS Regnest for Admissions # 1: With respect to the Carter Lumber Company Yard Account Application (hereinafter "Application"), attached to Plaintiffs Amended Complaint and named as Exhibit "1," do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That your signature appears thereon as "Personal Guarantor?" ANSWER: D. That your signature is in fact genuine? ANSWER: E. That pursuant to the Application you were granted and received a credit account with Carter Lumber which you used to purchase and take possession of various goods, wares and merchandise more particularly identified in the invoices attached to Plaintiffs Amended Complaint and named as Exhibits " 2" thru " 34?" ANSWER: F. That you have not paid Plaintiff for said goods, wares and merchandise more particularly identified in the invoices attached hereto and named as Exhibits " 2" thru " 34?" ANSWER: Interrog~ry # 1: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request. ANSWER: 5 Request for Production of Documents # 1: If any fact, upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 2: With respect to Invoice #601081820 dated 12-31-07, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct. copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: back? E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agroed to pay? 6 ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interrogatory # 2: ff you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 2: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 3: With respect to Invoice # 601Q81821 dated 12-31-07, attached to Plaintiff s Complaint as referenced above, do you admit: 7 ~ ~ A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within I4 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: 8 Interrogatory # 3: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denyvag said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 3: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 4: With respect to Invoice #601081822 dated 12-31-07, attached to Plaintiffs Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? 9 ANSWER: . D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F, That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interrog~r~# 4: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: 10 B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Rye. oast for Production of Documents # 4: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 5: With respect to Invoice # 381123162 dated 1-10-08, attached W Plaintiff s Complaint as referenced. above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: back? E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it 11 ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interrogatory # 5: If you have not answered every part of the preceding Request for Admission in the affuxnative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: 12 Reque~f for Production of Documents # S: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # b: With respect to Invoice # 381123164 dated 1-10-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: 13 I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interrogatory # 6: If you have not answered every part of the preceding Request for Admission in the affirmative, .state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 6: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 7: With respect to Invoice # 381123235 dated 1-14-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? 14 ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interrogator~+ # 7: ff you have not answered every part of the preceding Request for Admission in the affu~madve, state fully ail of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: 15 A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 7: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 8: With respect to Invoice # 381123285 dated 1-16-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B, That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: 16 E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interrogatory # 8: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: 17 C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request_for Production. of Documents # 8: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Rgguest for Admissions # 9: With respect to Invoice # 382068850 dated 1-16-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct Dopy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: 18 H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interrogatory # 9: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 9: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. 19 Request for Admissions # 10: With respect to Invoice # 381123374 dated 1-21-08, attached to Plaintiff's Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items an said Invoice? ANSWER: G. That the price indicated for said items is the mazket price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: 20 4 Interrogatory # 10: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request f~rPro~,pction of Documents # 10: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 11: With respect to Invoice # 381123424 dated 1-23-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: 21 w ~ C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Inteiro a~to_rv # 11: ff you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: 22 • ~ B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 11 If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. bequest for Admissions # 12: With respect to Invoice # 381123465 dated 1-25-08, attached to Plaintiffs Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: 23 E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: I. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interrogatory # 12: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the speck goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: 24 a ~ C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Dog}ments # 12• if any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspecxion and photocopy, or attach copies of said writings. Request for Admissions # 13 With respell to Invoice # 381123463 dated 1-25-08, attached to Plaintiff's Complaint as referenced above, do you admit: A. That it is a true and correct Dopy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: 25 G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: i. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interro~ry # 13: If you have not answered every part of the preceding Request for Admission in the affirmative, state frilly alI of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the speck price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: 26 Rgquest for Pro~uctio,~ of Docurn nts # 13• If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 14• With respect to Invoice # 381123458 dated 1-25-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to-pay? ANSWER: 27 I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: IntenogatorY# 14: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 14• If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 15: With respect to Invoice # 381123483 dated 1-28-08, attached to Plaintiff s Complaint as referenced above, do you admit: 28 A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: 29 Interrogatory 15: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff, ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: bequest for Production of Docum is # 15• If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 16• With respect to Invoice # 381123485 dated 1-2&08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: 30 C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said invoice? ANSWER: InterroQatorv # 16: ff you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Ident~cation of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: 31 B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ' ANSWER: Rgq~e~t for Production of Documents # 16: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 17: With respect to Invoice # 381123554 dated 1-30-08, attached to Plaintiff's Connplaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: back? E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it ANSWER: 32 F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interrogatorv # 17: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully a!1 of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted frnm Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: 33 Request for Production of Documgnts # 17: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 18: With respect to Invoice # 381123563 dated 1-30-08, attached to Plaintiffs Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within IO days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: 34 I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interrogator # 18: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 18• If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # ~9• With respect to Invoice # 381123555 dated 1-30-08, attached to Plaintiff's Complaint as referenced above, do you admit: 35 A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. 'That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: ~ry# 19: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C_ Identification of the speck price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Dents # 19• If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 20: With respect to Invoice # 381123583 dated 1-30-08, attached to Plaintiffs Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: 37 C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interco story # 20: ff you have not answered every part of the preceding Request for Admission in the afFumative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: 38 B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 20• If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, Produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 21: With respect to Invoice # 381123609 dated 2-01-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: 39 F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: I~lcerr gator}! # 21: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: 40 Request for Production of Documents # 21• If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 22: With respect to Invoice # 381123683 dated 2-06-08, attached to Plaintiff's Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated far said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: 41 I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Intert~~ator~r # 22: If you have not answered every part of the preceding Request for Admission in the affumative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of o ~~ents # 22• If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. 42 r ~ ~eauest for Asion~#_23• With respect to Invoice # 381123727 dated 2-07-08, attached to Plaintiff's Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: 43 In~~,~atorY# 23: ff you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plavntiff for the goods ordered received and accepted by you. ANSWER: Reauest for Production of Documents # 23: ff any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach cogies of said writings. Rec~µest for Admissions # 24: With respect to Invoice # 381123728 dated 2-0'1-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original witbun 10 days of the date noted thereon? ANSWER: 44 r ~ C. That yvu ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask PIaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Intetr~~atorv # 24: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: 45 B. Identification of the speck goods which you admit you ordered, received and accepted from Plaintiff. ANSWER; C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Productiq~ of D~uments # 24: if any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 25: With respect to Invoice # 381123768 dated 2-08-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: back? E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it ANSWER: 46 F. 'That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. 'That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interrog~r rti # 25: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the spec price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: 47 Request for Production of Docum tc # 25• If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 26• With respect to Invoice # 381123756 dated 2-48-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 14 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: 48 I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the frill price for each item on said Invoice? ANSWER: Interrogat,Qry #,2 ~: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price -you claim to have agreed to pay Plaintiff fvr the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 26• If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 27• With respect to Invoice # 381123757 dated 2-08-08, attached to Plaintiffs Complaint as referenced above, do you admit: 49 A. That it is a true and cbtrect copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That yvu received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the mazket price for each? ANSWER: H. That the price indicated for said items is the price you_agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you awe the Plaintiff the full price for each item on said Invaice? ANSWER: Interrogatory # 27: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely. upon at trial, in denying said request, including but not limited to: SO A. Identification of the specific goods which you claim not to have ordered, received and accepted fram Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 27: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 28: With respect to Invoice # 381123863 dated 2-1408, attached to Plaintiff's Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: 51 r D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items- appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: );_nterro ag Irv # 28• If you have not answered every part of the precednng Request for . Adarission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted fromplaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: 52 C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: R_gc~uest for Production of Documen~~.8• If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 29: With respect tv Invoice # 381123878 dated 2-15-08, attached to Plaintiff's Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That.you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: 53 G. That-the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Uivoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interrogatory # 29: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: ~te~uest far Production of documents # 29• If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. 54 R~.quest for Ad,~xus' sions # 30: With respect to Invoice # 381124100 dated 2-28-08, attached to Plaintiff's Complaint as referenced above, do you admit: A. That it is a true and coaect copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: . 55 Interrogatory # 30 If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you adroit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # ~0: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 31: With respect to Invoice # 381124099 dated 2-28-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: 56 C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price #or each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: 3. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interco a~toxv # 31: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identif cation of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: S7 B. Identification of the specific goods which you admit you ordered, received and accepted from PIaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: west for Production of Documents # 31: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 32: With respect to Invoice # 381124112 dated 2-28-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: back? E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it ANSWER: 58 F'. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: 7. That you owe the Plaimiff the full price for each item on said Invoice? ANSWER: Interroga ory # 32• If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: 59 Request for Production of Documents # 32: ff any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 33: With respect to Invoice # 60108b811 dated 2-29-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items Iisted on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: 60 I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interrogatory # 33: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ardered, received and accepted from Plaintiff. ANSWER: B. Idernification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 33: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Regpest for Adnussio~s # 34: With respect to Invoice # 6Q14S6812 dated 2-29-OS, attached to Plaintiff s Complaint as referenced above, do you admit: 61 A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid PIainriff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interr gatory # 34: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: 62 A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 34: If any fact upon which you rely, in answer to any part of the preceding interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. Request for Admissions # 35: With respect to Invoice #601086813 dated 2-29-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B . That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: 63 D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? .ANSWER: Interrogatory # 35: If you have not answered every part of the preceding Request for Admission in the affsrmative, state Billy all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: 64 C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: ~.e~uest for Production o~~ocuments # 35• If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and pernnit inspection and photocopy, or attach copies of said writings. Request for Admissi~ # 36: With respect to Invoice # 381124214 dated 3-OS-08, attached to Plaintiff s Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 10 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: 65 G. That the price indicated for said items is the market price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid PlaintifiF for any of the items appearing on said Invoice? ANSWER: J. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: Interroeatorv # 36: If you Save not answered every part of the preceding Request for Admission in the affirmative, state fully alI of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Ident~cation of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Produ-coon of Documents # 36: ff any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings. 66 bequest for Admissions # 37: With respect to Invoice # 381124277 dated 3-07-08, attached to Plaintiff's Complaint as referenced above, do you admit: A. That it is a true and correct copy of the original? ANSWER: B. That you received the original within 14 days of the date noted thereon? ANSWER: C. That you ordered each of the items listed on said Invoice? ANSWER: D. That you received each of the items listed on said Invoice? ANSWER: E. That you kept each of the items listed on the Invoice and did not ask Plaintiff to take it back? ANSWER: F. That you have sold each of the items on said Invoice? ANSWER: G. That the price indicated for said items is the mazket price for each? ANSWER: H. That the price indicated for said items is the price you agreed to pay? ANSWER: I. That you have not paid Plaintiff for any of the items appearing on said Invoice? ANSWER: 3. That you owe the Plaintiff the full price for each item on said Invoice? ANSWER: 67 Interrogate # 37: If you have not answered every part of the preceding Request for Admission in the affirmative, state fully all of the facts upon which you rely, or intend to rely upon at trial, in denying said request, including but not limited to: A. Identification of the specific goods which you claim not to have ordered, received and accepted from Plaintiff. ANSWER: B. Identification of the specific goods which you admit you ordered, received and accepted from Plaintiff. ANSWER: C. Identification of the specific price you claim to have agreed to pay Plaintiff for the goods ordered, received and accepted by you. ANSWER: Request for Production of Documents # 37: If any fact upon which you rely, in answer to awry part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photowpy, or attach copies of said writings. Rec2uest fo Admission 38: Do you admit you owe Plaintiff the principal sum of $42,139.23 for the goods described in Exhibits " 2" through " 34," as set forth in the Carter Lumber Company Statement of Account attached to Plaintiff's Amended Complaint as referenced above? ANSWER: Interrogatory # 38: If you have responded to Request for Admission Number 38 in the negative, please provide a detailed explanation of your answer, including but not limited to identification of the specific 68 amount, which you admit you owe Plaintiff and the specific basis of your position, including but not limited to: A. Identification of the specified debits, which you claim not to be listed properly on the Statement of Account? ANSWER: B. Identification of the specified credits, which you claim not to be listed properly on the Statement of Account? ANSWER: C. Identification of any specified debits or credits, which you claim and which are not listed on the Statement of Account? ANSWER: D. Identification of the specific amount which you admit you owe Plaintiff and the specific basis for your position. ANSWER: Request for Production of Documents # 38: Produce and permit inspection and photocopying, or attach copies of your accounts payable ledger or other business records regarding the history of account transactions with Plaintiff, and the amount which your records show as the balance due Plaintiff on this account. Interrogatory,# 39: If you claim you gave Plaintiff notice of allegedly defective ornon-conforming goods or services, state for each time you gave the alleged notice: A. The date (and time, if known) when you allegedly gave such notice; ANSWER: 69 B. The substantial contents of said notice, and whether it was reduced to writing; ANSWER: C. The identity and address of those persons you allege were acting on Plaintiff s behalf in receiving said notice; ANSWER: D. The identity and address of all persons allegedly acting on your behalf in giving said notice. ANSWER: Request for Production of Documents # 34: If any fact upon which you rely, in answer to any part of the preceding Interrogatory, is evidenced by, or embodied in a writing, produce and permit inspection and photocopy, or attach copies of said writings, including, but not litnited to, any written notice that was given to Plaintiff regazding the alleged defectives and non-conformity of the goods and services provided by Plaintiff. Interrogator +1 # 40: State the name, telephone number and address of each person you intend to call as a witness at the time of trial, the capacity you expect them to testify in, and give a brief narrative of the expected nature and substance of their testimony. ANSWER: Request for Production of Documents #40: Produce and permit inspection and photocopying, or attach copies of all writing you intend to use at the trial of the case. 70 Iaterrogatorv # 41: State the name, telephone number and address of each person you believe has firsthand knowledge of any fact in dispute in these proceedings, including reference to what particular matter you believe they may have witnessed. ANSWER: I~}terrogatQr~# 42• State the name, address and telephone number of each employee of FCM Builders, who would have had knowledge of any of the facts in dispute, state whether they are still employed by you, and in what capacity, or if they are no longer in your employ, state the last telephone number and address where they reside or work and can be reached. ANSWER: Respectfully submitted, BERNSTEIN LAW FIRM, P.C. By: ~ Ja .Bock, III, Esquire PA I.D. #201758 Bernstein Law Firm, P.C. Firm #718 Suite 2200 Gulf Tower Pittsburgh, PA 15219 412-456-8115 71 ~_ ~ ~ I hereby verify that the statements contained in the foregoing Answers to Plaintiff s First Set of Requests for Admissions, Interrogatories and Requests for Production of Documents 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 CS § 4904, relating to unswom falsifications to authorities. Date: 72 CER CATS O SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Plaintiff s First Set of Requests for Admissions, Interrogatories and Requests for Production of Documents was served upon the attorney of record for the Defendant via regular U.S. Mail, postage prepaid, this day of ~ , 2009, addressed as follows: Robert E. Chernicoff, Esquire Cunningham & Cherniwff, P.C. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 Counsel for Defendants ck P. Bock, III, Esquire Attorney for Plaintiff 73 R ~ ~ CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT was served upo/n the Defendant's counsel via regular U.S. Mail, postage prepaid, this ~~ day of ~G, , 2010, addressed as follows: Fred Miller, Defendant; c/o Robert E. Chernicoff, Esquire Cunningham &Chernicoff, P.C. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 Counsel for Defendants hack P.-Bock, III, Esq. Attorney for Plaintiff CArAL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CARTER LUMBER COMPANY, Plaintiff vs. FRED MILLER, as Personal Guarantor of FCM Builders, Inc., No. 09-257 Civil Term PRAECIPE FOR ARGUMENT ON MOTION FOR SUMMARY JUDGMENT n . ~. o !'.trj ~ FJ _ ~ ~~ ~ : _.._ V FILED ON BEHALF OF: ~-w ~ .~ .. Plaintiff :.~ ~,,~ w ti., .~ .~ ;~ -~? r- ~~ '.. „~ ~~ 1 J n~ .fin -c Defendant COUNSEL OF RECORD FOR THIS PARTY: NICHOLAS D. KRAWEC, ESQUIRE PAID #38527 JACK P. BOCK, III, ESQUIRE PA ID #201758 Bernstein Law Firm, P.C. Firm #718 Suite 2200 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 412-456-8100 BERNSTEIN FILE NO.00068868 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CARTER LUMBER COMPANY, Plaintiff No. 09-257 Civil Term vs. FRED MILLER, as Personal Guarantor of FCM Builders, Inc., Defendant PRAECIPE FOR ARGUMENT ON MOTION FOR SUMMARY UDGMENT TO THE PROTHONOTARY: Please list Plaintiff's Motion for Summary Judgment, filed on or about March 5, 2010 in the above-captioned matter, for oral argument. Respectfully submitted, BERNSTEIN LAW FIRM, P.C. By: Jack .Bock, III, Esquire P .D.#201758 Bernstein Law Firm, P.C. Firm #718 Suite 2200, Gulf Tower Pittsburgh, PA 15219 412-456-8115 t CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing PRAECIPE FOR ARGUMENT ON MOTION FOR SUMMARY JUDGMENT~w/as served upon the Defen is counsel via regular U.S. Mail, postage prepaid, this '~~ day of 2010, addressed as follows: Fred Miller, Defendant; c/o Robert E. Chernicoff, Esquire Cunningham &Chernicoff, P.C. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 Counsel for Defendants ack P. Bock, III, Esq. Attorney for Plaintiff (7--r �U David-D. Buell- 4.1.1A, 6,- Renee X Simpson Prothonotary :;G . 15` Deputy Prothonotary �irkS. Sohonage, ESQ .wd,r Irene E. Morrow SoCicitor 1750 2"`f Deputy Prothonotary Office of the Prothonotary Cumberland County, <Pennsy[vania 09 -02.57 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER, 2013,AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE-THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 • Carlisle, PA 17013 • (717)240-6195 • Fa.,(717)240-6573