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HomeMy WebLinkAbout09-4386V KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com R.J.'S TRANSPORT, LLC, Plaintiff, vs. BRENNER FINANCIAL, INC., Defendant. Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION JURY TRIAL DEMANDED N O T I C E TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com Attorney for Plaintiff R.J.'S TRANSPORT, LLC, IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. BRENNER FINANCIAL, INC., : CIVIL ACTION Defendant. JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff, R.J.'s Transport, LLC (hereinafter "Plaintiff'), is a limited liability company with an address of 1233 Claremont Road, Carlisle, PA, 17013. 2. Defendant, Brenner Financial, Inc. (hereinafter "Defendant"), is a corporation with a last known address of 2222 Paxton Street, Harrisburg, PA, 17105. STATEMENT OF FACTS 3. On or about April 11, 2005, Plaintiff entered into a written Closed-End Lease Agreement (hereinafter "April 2005 Agreement") with Defendant for the lease of a 2005 Peterbilt Tractor (hereinafter "Peterbilt"), more particularly identified in the April 2005 Vehicle Lease Order, a true and correct copy of which is attached hereto, marked as Exhibit "A" and made a part hereof. 4. By the terms of the April 2005 Agreement, Plaintiff was to make approximately Thirty-Six (36) payments of $1,933.00, commencing on or about May 1, 2005, and to pay a security deposit of $1,785.00 due at the inception of the April 2005 Agreement; Plaintiff would have the option to purchase the Peterbilt for $1.00 upon satisfactory completion of the April 2005 Agreement on or about May 1, 2008. 5. On or about August 24, 2005, Plaintiff entered into a written Closed-End Lease Agreement (hereinafter "August 2005 Agreement") with Defendant for the lease of a 1988 East Dump Trailer (hereinafter "East"), more particularly identified in the August 2005 Vehicle Lease Order, a true and correct copy of which is attached hereto, marked as Exhibit "B" and made a part hereof. 6. By the terms of the August 2005 Agreement, Plaintiff was to make approximately Thirty (30) payments of $605.00, commencing on or about September 1, 2005, and to pay a security deposit of $605.00 due at the inception of the August 2005 Agreement; Plaintiff would have the option to purchase the East for $1.00 upon satisfactory completion of the August 2005 Agreement on or about March 1, 2008. 7. On or about February 16, 2006, Plaintiff entered into a written Closed-End Lease Agreement (hereinafter "2006 Agreement") with Defendant for the lease of a 2003 Kenworth Triaxle with Dump Bed (hereinafter "Kenworth"), more particularly identified in the 2006 Vehicle Lease Order, a true and correct copy of which is attached hereto, marked as Exhibit "C" and made a part hereof. Page 2 of 9 8. By the terms of the 2006 Agreement, Plaintiff was to make approximately Sixty (60) payments of $2,492.00, commencing on or about March 1, 2006, and to pay a security deposit of $2,492.00 due at the inception of the 2006 Agreement; Plaintiff would have the option to purchase the Kenworth for $1.00 upon satisfactory completion of the 2006 Agreement on or about March 1, 2011. 9. On or about June 1, 2007, Plaintiff entered into a written Closed-End Lease Agreement (hereinafter "June 2007 Agreement") with Defendant for the lease of a 1997 Mac Dump Trailer (hereinafter "Mac"), more particularly identified in the June 2007 Agreement and Vehicle Lease Order, true and correct copies of which are attached hereto, marked as Exhibit "D" and made a part hereof. 10. By the terms of the June 2007 Agreement, Plaintiff was to make approximately Thirty-Six (36) payments of $1,113.00, commencing on or about July 1, 2007, and to pay a security deposit of $1,113.00 due at the inception of the June 2007 Agreement; Plaintiff would have the option to purchase the Mac for $1.00 upon satisfactory completion of the June 2007 Agreement on or about June 1, 2010. 11. After entering the June 2007 Agreement, Plaintiff was paying a total monthly payment of $6,143.00 as a result of the four (4) different leases as set forth above. 12. Plaintiff, in an attempt to lower its monthly payment, approached Defendant about combining all four leases into one lease. Page 3 of 9 13. Accordingly, on or about November 30, 2007, Plaintiff ostensibly entered into a fifth written Closed-End Lease Agreement (hereinafter "Final Agreement") with Defendant upon Defendant's offer to combine all prior leases under the Final Agreement in order to lower Plaintiff's monthly lease payments. There was no lease agreement signed by or presented to Plaintiff that set forth these terms, all that was provided was a 2007 Lease Order that reflected the Kenworth as the vehicle for which the 2007 Lease Order applied. A true and correct copy of this Lease Order is attached hereto, marked as Exhibit "E" and made a part hereof. 14. By the terms of the Final Agreement, Plaintiff was to make approximately Forty-Two (42) payments of $4,061.00, commencing on or about December 1, 2008, and to pay a security deposit of $3,605.00 due at the inception of the Final Agreement. 15. These payments, according to the Defendant, were to cover the Kenworth, Peterbilt, East and Mac. 16. Other than a 2007 Vehicle Lease Order, which reflects only the Kenworth, there is no documentation to support the combining of the four prior Agreements. 17. There is no documentation that invalidated the prior leases; specifically, the April 2005 Agreement, the August 2005 Agreement and the June 2007 Agreement. 18. By the time Plaintiff entered into the Final Agreement with the Defendant, Plaintiff had paid an approximate total of $57, 990.00 or Thirty (30) payments towards the Peterbilt pursuant to the April 2005 Agreement, leaving Plaintiff with the relatively Page 4 of 9 low amount due on the Peterbilt of approximately $11,598.00 or Six (6) remaining payments. 19. Likewise, By the time Plaintiff entered into the Final Agreement with the Defendant, Plaintiff had paid an approximate total of $15,730.00 or Twenty-Six (26) payments towards the East pursuant to the August 2005 Agreement, leaving Plaintiff with an even lower amount due on the East of $2,420.00 or Four (4) remaining payments. 20. Considering that Plaintiff only made Twenty-one (21)out of Sixty (60) payments towards the Kenworth, or $52,332.00 out of $149,520.00, and Five (5) out of Thirty-Six (36) payments towards the Mac, or $5,565.00 out of $40,068, the bulk of the Final Agreement consisted of payments towards the Kenworth and the Mac. 21. Between December, 2008 and May, 2009, Plaintiff had fallen behind in its payments pursuant to the Final Agreement; specifically, Plaintiff fell behind four to five payments for an approximate total of $16, 728.34. 22. As a result, Defendant repossessed the Kenworth and sold it for $42, 000.00. 23. Subsequently, Defendant informed Plaintiff that it was closing out the Final Agreement and demanded that Plaintiff return the Peterbilt, East and Mac. 24. There is no documentation authorizing repossession of these remaining vehicles. Page 5 of 9 25. Further, by the time Plaintiff fell behind in its payments pursuant to the Final Agreement, Plaintiff would have paid off the Peterbilt and the East in their entirety. 26. By way of illustration, Plaintiff made approximately eleven payments totaling $44,671.00 pursuant to the Final Agreement. If the amount of $44,671.00 is divided between the four vehicles, then Plaintiff would have paid approximately, $11,167.75 towards each vehicle. In considering that Plaintiff only owed an approximate amount of $2,420.00 on the East when Plaintiff entered into the Final Agreement (or $1,815.00 if the security deposit of $605.00 is subtracted from this amount), than the approximate amount of $8,747.75 (or $9,352.75 if considering the security deposit) would have been over paid on the East and applied to the remaining vehicles. So, in essence, Plaintiff paid approximately $14,083.66 towards the Peterbilt, Mac and Kenworth (or $14, 285.33 if considering the security deposit) by the time of Plaintiffs default. This amount would have more than paid off the Peterbilt considering that Plaintiff only owed approximately $11,598.00 (or $9,813.00 if considering the security deposit) on the Peterbilt by the time of Plaintiff's default. 27. Plaintiff also installed upgrades in the Peterbilt at considerable cost to Plaintiff. 28. Nevertheless, the Defendant did not offer the Plaintiff an option to purchase the titles to the East or Peterbilt for $1.00 pursuant to the April 2005 and August 2005 Agreements. Page 6 of 9 29. Plaintiff is not disputing that the Kenworth and Mac would not have been paid off by the time of Plaintiff's default. 30. In light of the above, Plaintiff offered that Defendant repossess the Mac (the Kenworth was already repossessed), but allow Plaintiff to purchase the Permanent Registration and Certificates of Title (hereinafter "Title") to the Peterbilt and East for $1.00 pursuant to the April 2005 and August 2005 Agreements. The Defendant refused and continues to demand that Plaintiff return the Mac, East and Peterbilt. 31. The Defendant has, and continues to threaten to repossess the Mac, Peterbilt and East. COUNT I - REPLEVIN 32. Paragraphs 1 through 29 above are incorporated herein by reference as though more fully set forth at length. 33. By refusing to sell the Peterbilt and East to Plaintiff for $1.00 pursuant to the April and August 2005 Agreements, the Defendant deprived Plaintiff of its right to said vehicles, without Plaintiff's consent and without lawful justification. 34. Plaintiff has performed all conditions precedent necessary to obtain Title to the Peterbilt and East and to have said Titles properly reflect Plainitff's ownership on these vehicles, but the Defendant wrongfully refuses to transfer the Titles to these vehicles over to Plaintiff. 35. Plaintiff avers that this conduct of Defendant constitutes conversion. Page 7 of 9 36. Plaintiff has an immediate right to possession of the Titles to the Peterbilt and East, both of which are currently in the possession of Defendant. WHEREFORE, Plaintiff prays for Judgment against Defendant in Count I of this Complaint as follows: a For the transfer of the Titles for the Peterbilt and East to Plaintiff so that these Titles reflect Plaintiff as sole owner of the Peterbilt and East with no other liens or encumbrances; and b For such other relief that the Court deems just and proper. COUNT II - BREACH OF CONTRACT 37. Paragraphs 1 through 34 above are incorporated herein by reference as though more fully set forth at length. 38. Plaintiff entered into Agreements with Defendant for the lease of the Peterbilt and East as set forth above. 39. These Agreements allowed for the sale of the Peterbilt and East to the Plaintiff for $1.00 upon payment, in full, of the agreed upon price contained in the Agreements. 40. Plaintiff paid Defendant all sums to which they were entitled under the Agreements. 41. Defendant's failure to give the Plaintiff valid Title, following Plaintiffs payment, in full, of the agreed upon price constitutes a breach of contract. Page 8 of 9 42. Plaintiff incurred additional expenses in reliance of defendants' contractual obligations for which plaintiff is entitled to be reimbursed. WHEREFORE, Plaintiff prays for Judgment against Defendant in Count II of this Complaint as follows: a For the transfer of the Titles for the Peterbilt and East to Plaintiff so that these Titles reflect Plaintiff as sole owner of the Peterbilt and East with no other liens or encumbrances; b For reimbursement of incidental and reliance expenses; and c For such other relief that the Court deems just and proper Respectfully Submitted, SHANE Date: 61 '712 00'? IATES, LLC K ESQUIRE Page 9 of 9 VERIFICATION I, Elizabeth Settle, owner of R.J.'s Transport, LLC, the Plaintiff in this matter, have read the foregoing Complaint. I verify that my averments in this Complaint are true and correct and based upon my personal knowledge. I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsifications to authorities. Dated: (p ?? ?- Elizabet ettle 0 ? r.,74 f (1 THE C- 'i 2069 UU!131 0 F i 6 : Es =) Ira 17 # 71121 KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com R.J.'S TRANSPORT, LLC, Plaintiff, vs. BRENNER FINANCIAL, INC., Defendant. r^, ^? Attorney for Plaintiff c IN THE COURT OF COMIVM PLEAS E ; CUMBERLAND COUNTY, P NNS-YLVANIA NO. CIVIL ACTION JURY TRIAL DEMANDED MOTION FOR A PRELIMINARY INJUNCTION Plaintiff respectfully moves this Honorable Court for a Preliminary Injunction pursuant to Rule 1531 of the Pennsylvania Rules of Civil Procedure and alleges in support thereof as follows: 1. On or about June 29, 2009, Plaintiff filed a verified Complaint with the Court. A true and correct copy of the verified Complaint is attached hereto as Exhibit "A" and is incorporated by reference as if set forth in full herein. 2. As more specifically stated in the verified Complaint, Defendant is wrongfully intending to repossess Plaintiff's 2001 Peterbilt Tractor (hereinafter "Peterbilt") and Plaintiff's 1988 East Dump Trailer (hereinafter "East"), both of which are two of the only remaining assets of Plaintiff's business and sole source of income. Because Plaintiff's business is a transport business where various goods and freight are transported via intrastate and interstate commerce, Plaintiff relies on the Peterbilt and East to run its business; indeed, Plaintiff's business would cease to exist without the Peterbilt and East. 3. As more specifically stated in the Complaint, Plaintiff is the rightful owner of the Peterbilt and East and Defendant is wrongfully intending on repossessing these vehicles. 4. Unless the requested Preliminary Injunction is granted, plaintiff will suffer irreparable harm which cannot be compensated by damages, because the continued livelihood of the Plaintiff and its employees depends on the continued operation of Pliaintiff's business. 5. Defendant will not suffer any appreciable injury if the Preliminary Injunction is granted, because the status quo will simply continue uninterrupted pending the outcome of the underlying action, during which time defendant will merely be restrained from committing wrongful acts. 6. Defendant's wrongful conduct is actionable and plaintiff's right is clear. 7. Plaintiff is likely to succeed on the merits of its claims. 8. Plaintiff has no adequate remedy at law. 9. There is an underlying action that will ultimately decide the permanency of this injunction. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an order pursuant to Pa.R.C.P. 1531 as follows: Page 2 of 3 a that the defendant be ordered to appear, following due notice, and show cause why a Preliminary Injunction should not be issued during the pendency of this action according to the prayer of the Complaint and the requested injunctive relief; b that an injunction shall issue preliminarily until final hearing, and permanently thereafter, enjoining defendant from repossessing or otherwise interfering with Plaintiff's possession of the Peterbilt and East; c that the Court's Order shall remain in full force and effect until such time as this Court orders otherwise. Respectfully Submitted, Date: 61 Z (?//Z 0 u ? Page 3 of 3 VERIFICATION I, Elizabeth Settle, owner of R.J.'s Transport, LLC, the Plaintiff in this matter, have read the foregoing Motion for a Preliminary Injunction. I verify that my averments in this Motion are true and correct and based upon my personal knowledge. I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsifications to authorities. Dated: Cv a2e 0q Elizabeth ttle KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com R.J.'S TRANSPORT, LLC, Plaintiff, vs. BRENNER FINANCIAL, INC., Defendant. Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION JURY TRIAL DEMANDED N O T I C E TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 EXHIBIT A KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com Attorney for Plaintiff R.J.'S TRANSPORT, LLC, IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. BRENNER FINANCIAL, INC., : CIVIL ACTION Defendant. JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff, R.J.'s Transport, LLC (hereinafter "Plaintiff'), is a limited liability company with an address of 1233 Claremont Road, Carlisle, PA, 17013. 2. Defendant, Brenner Financial, Inc. (hereinafter "Defendant"), is a corporation with a last known address of 2222 Paxton Street, Harrisburg, PA, 17105. STATEMENT OF FACTS 3. On or about April 11, 2005, Plaintiff entered into a written Closed-End Lease Agreement (hereinafter "April 2005 Agreement") with Defendant for the lease of a 2005 Peterbilt Tractor (hereinafter "Peterbilt"), more particularly identified in the April 2005 Vehicle Lease Order, a true and correct copy of which is attached hereto, marked as Exhibit "A" and made a part hereof. 4. By the terms of the April 2005 Agreement, Plaintiff was to make approximately Thirty-Six (36) payments of $1,933.00, commencing on or about May 1, 2005, and to pay a security deposit of $1,785.00 due at the inception of the April 2005 Agreement; Plaintiff would have the option to purchase the Peterbilt for $1.00 upon satisfactory completion of the April 2005 Agreement on or about May 1, 2008. 5. On or about August 24, 2005, Plaintiff entered into a written Closed-End Lease Agreement (hereinafter "August 2005 Agreement") with Defendant for the lease of a 1988 East Dump Trailer (hereinafter "East"), more particularly identified in the August 2005 Vehicle Lease Order, a true and correct copy of which is attached hereto, marked as Exhibit "B" and made a part hereof. 6. By the terms of the August 2005 Agreement, Plaintiff was to make approximately Thirty (30) payments of $605.00, commencing on or about September 1, 2005, and to pay a security deposit of $605.00 due at the inception of the August 2005 Agreement; Plaintiff would have the option to purchase the East for $1.00 upon satisfactory completion of the August 2005 Agreement on or about March 1, 2008. 7. On or about February 16, 2006, Plaintiff entered into a written Closed-End Lease Agreement (hereinafter "2006 Agreement") with Defendant for the lease of a 2003 Kenworth Triaxle with Dump Bed (hereinafter "Kenworth"), more particularly identified in the 2006 Vehicle Lease Order, a true and correct copy of which is attached hereto, marked as Exhibit "C" and made a part hereof. Page 2 of 9 8. By the terms of the 2006 Agreement, Plaintiff was to make approximately Sixty (60) payments of $2,492.00, commencing on or about March 1, 2006, and to pay a security deposit of $2,492.00 due at the inception of the 2006 Agreement; Plaintiff would have the option to purchase the Kenworth for $1.00 upon satisfactory completion of the 2006 Agreement on or about March 1, 2011. 9. On or about June 1, 2007, Plaintiff entered into a written Closed-End Lease Agreement (hereinafter "June 2007 Agreement") with Defendant for the lease of a 1997 Mac Dump Trailer (hereinafter "Mac"), more particularly identified in the June 2007 Agreement and Vehicle Lease Order, true and correct copies of which are attached hereto, marked as Exhibit "D" and made a part hereof. 10. By the terms of the June 2007 Agreement, Plaintiff was to make approximately Thirty-Six (36) payments of $1,113.00, commencing on or about July 1, 2007, and to pay a security deposit of $1,113.00 due at the inception of the June 2007 Agreement; Plaintiff would have the option to purchase the Mac for $1.00 upon satisfactory completion of the June 2007 Agreement on or about June 1, 2010. 11. After entering the June 2007 Agreement, Plaintiff was paying a total monthly payment of $6,143.00 as a result of the four (4) different leases as set forth above. 12. Plaintiff, in an attempt to lower its monthly payment, approached Defendant about combining all four leases into one lease. Page 3 of 9 13. Accordingly, on or about November 30, 2007, Plaintiff ostensibly entered into a fifth written Closed-End Lease Agreement (hereinafter "Final Agreement") with Defendant upon Defendant's offer to combine all prior leases under the Final Agreement in order to lower Plaintiff's monthly lease payments. There was no lease agreement signed by or presented to Plaintiff that set forth these terms; all that was provided was a 2007 Lease Order that reflected the Kenworth as the vehicle for which the 2007 Lease Order applied. A true and correct copy of this Lease Order is attached hereto, marked as Exhibit "E" and made a part hereof. 14. By the terms of the Final Agreement, Plaintiff was to make approximately Forty-Two (42) payments of $4,061.00, commencing on or about December 1, 2008, and to pay a security deposit of $3,605.00 due at the inception of the Final Agreement. 15. These payments, according to the Defendant, were to cover the Kenworth, Peterbilt, East and Mac. 16. Other than a 2007 Vehicle Lease Order, which reflects only the Kenworth, there is no documentation to support the combining of the four prior Agreements. 17. There is no documentation that invalidated the prior leases; specifically, the April 2005 Agreement, the August 2005 Agreement and the June 2007 Agreement. 18. By the time Plaintiff entered into the Final Agreement with the Defendant, Plaintiff had paid an approximate total of $57, 990.00 or Thirty (30) payments towards the Peterbilt pursuant to the April 2005 Agreement, leaving Plaintiff with the relatively Page 4 of 9 low amount due on the Peterbilt of approximately $11,598.00 or Six (6) remaining payments. 19. Likewise, By the time Plaintiff entered into the Final Agreement with the Defendant, Plaintiff had paid an approximate total of $15,730.00 or Twenty-Six (26) payments towards the East pursuant to the August 2005 Agreement, leaving Plaintiff with an even lower amount due on the East of $2,420.00 or Four (4) remaining payments. 20. Considering that Plaintiff only made Twenty-one (21)out of Sixty (60) payments towards the Kenworth, or $52,332.00 out of $149,520.00, and Five (5) out of Thirty-Six (36) payments towards the Mac, or $5,565.00 out of $40,068, the bulk of the Final Agreement consisted of payments towards the Kenworth and the Mac. 21. Between December, 2008 and May, 2009, Plaintiff had fallen behind in its payments pursuant to the Final Agreement; specifically, Plaintiff fell behind four to five payments for an approximate total of $16, 728.34. 22. As a result, Defendant repossessed the Kenworth and sold it for $42, 000.00. 23. Subsequently, Defendant informed Plaintiff that it was closing out the Final Agreement and demanded that Plaintiff return the Peterbilt, East and Mac. 24. There is no documentation authorizing repossession of these remaining vehicles. Page 5 of 9 25. Further, by the time Plaintiff fell behind in its payments pursuant to the Final Agreement, Plaintiff would have paid off the Peterbilt and the East in their entirety. 26. By way of illustration, Plaintiff made approximately eleven payments totaling $44,671.00 pursuant to the Final Agreement. If the amount of $44,671.00 is divided between the four vehicles, then Plaintiff would have paid approximately, $11,167.75 towards each vehicle. In considering that Plaintiff only owed an approximate amount of $2,420.00 on the East when Plaintiff entered into the Final Agreement (or $1,815.00 if the security deposit of $605.00 is subtracted from this amount), than the approximate amount of $8,747.75 (or $9,352.75 if considering the security deposit) would have been over paid on the East and applied to the remaining vehicles. So, in essence, Plaintiff paid approximately $14,083.66 towards the Peterbilt, Mac and Kenworth (or $14, 285.33 if considering the security deposit) by the time of Plaintiff's default. This amount would have more than paid off the Peterbilt considering that Plaintiff only owed approximately $11,598.00 (or $9,813.00 if considering the security deposit) on the Peterbilt by the time of Plaintiff's default. 27. Plaintiff also installed upgrades in the Peterbilt at considerable cost to Plaintiff. 28. Nevertheless, the Defendant did not offer the Plaintiff an option to purchase the titles to the East or Peterbilt for $1.00 pursuant to the April 2005 and August 2005 Agreements. Page 6 of 9 29. Plaintiff is not disputing that the Kenworth and Mac would not have been paid off by the time of Plaintiff's default. 30. In light of the above, Plaintiff offered that Defendant repossess the Mac (the Kenworth was already repossessed), but allow Plaintiff to purchase the Permanent Registration and Certificates of Title (hereinafter "Title") to the Peterbilt and East for $1.00 pursuant to the April 2005 and August 2005 Agreements. The Defendant refused and continues to demand that Plaintiff return the Mac, East and Peterbilt. 31. The Defendant has, and continues to threaten to repossess the Mac, Peterbilt and East. COUNT I - REPLEVIN 32. Paragraphs 1 through 29 above are incorporated herein by reference as though more fully set forth at length. 33. By refusing to sell the Peterbilt and East to Plaintiff for $1.00 pursuant to the April and August 2005 Agreements, the Defendant deprived Plaintiff of its right to said vehicles, without Plaintiff's consent and without lawful justification. 34. Plaintiff has performed all conditions precedent necessary to obtain Title to the Peterbilt and East and to have said Titles properly reflect Plainitff's ownership on these vehicles, but the Defendant wrongfully refuses to transfer the Titles to these vehicles over to Plaintiff. 35. Plaintiff avers that this conduct of Defendant constitutes conversion. Page 7 of 9 36. Plaintiff has an immediate right to possession of the Titles to the Peterbilt and East, both of which are currently in the possession of Defendant. WHEREFORE, Plaintiff prays for Judgment against Defendant in Count I of this Complaint as follows: a For the transfer of the Titles for the Peterbilt and East to Plaintiff so that these Titles reflect Plaintiff as sole owner of the Peterbilt and East with no other liens or encumbrances; and b For such other relief that the Court deems just and proper. COUNT II - BREACH OF CONTRACT 37. Paragraphs 1 through 34 above are incorporated herein by reference as though more fully set forth at length. 38. Plaintiff entered into Agreements with Defendant for the lease of the Peterbilt and East as set forth above. 39. These Agreements allowed for the sale of the Peterbilt and East to the Plaintiff for $1.00 upon payment, in full, of the agreed upon price contained in the Agreements. 40. Plaintiff paid Defendant all sums to which they were entitled under the Agreements. 41. Defendant's failure to give the Plaintiff valid Title, following Plaintiffs payment, in full, of the agreed upon price constitutes a breach of contract. Page 8 of 9 42. Plaintiff incurred additional expenses in reliance of defendants' contractual obligations for which plaintiff is entitled to be reimbursed. WHEREFORE, Plaintiff prays for Judgment against Defendant in Count II of this Complaint as follows: a For the transfer of the Titles for the Peterbilt and East to Plaintiff so that these Titles reflect Plaintiff as sole owner of the Peterbilt and East with no other liens or encumbrances; b For reimbursement of incidental and reliance expenses; and c For such other relief that the Court deems just and proper Respectfully Submitted, KOPE & ASSOCIATES, LLC SHANE B. KOPE, ESQUIRE Date: Page 9 of 9 CERTIFICATE OF SERVICE I, Shane B. Kope, Esquire, do hereby certify that on June 30, 2009, 1 served a true and correct copy of the foregoing Motion for Preliminary Injunction via first class mail, postage prepaid, addressed as follows: Brenner Financial, Inc. 2222 Paxton Street Harrisburg, PA 17105 TES, LLC Shane B. sq. 395 o ns rch Road, Suite 101 mp Hill, PA 170 (717) 761-7573 Sheriffs Office of Cumberland County R Thomas Kline F?LF il`,?,?L Sheriff OF THE F AC NOTAPY Ronny R Anderson ?4?Ntr ct sf ir?nb?17A Chief Deputy 2?Q4 JUL 23 AM 9: 4 9 Jody S Smith pr i 1 r_r r. `" Civil Process Sergeant crFF,ce F r,.? sr FRiFr , .1 Edward L Schorpp Solicitor R.J.'s Transport, LLC vs. Brenner Financial, Inc. I Case Number 2009-4386 SHERIFF'S RETURN OF SERVICE 07/06/2009 R. Thomas Kline, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Brenner Financial, Inc., but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 07/13/2009 Dauphin County Return: And now, July 13, 2009 I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for Brenner Financial, Inc. the defendant named in the within Complaint and that I am unable to find her in the County of Dauphir and therefore return same NOT FOUND. SHERIFF COST: $37.44 July 20, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF tf>e oft e?s ".r- Mary Jane Snyder Real Estate Depu William T. Tully f Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy R.J.'S TRANSPORT, LLC VS BRENNER FINANCIAL, INC. Sheriff s Return No. 2009-T-1896 OTHER COUNTY NO. 2009-4386 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for BRENNER FINANCIAL, INC. the DEFENDANT named in the within COMPLAINT and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, JULY 13, 2009. BUSINESS IS NO LONGER AT THIS ADDRESS; B & G'S TRAILOR REPAIRS IS AT THIS ADDRESS Sworn and subscribed to before me this 14TH day of July, 2009 A7??? NOTARIAL SEAL ARY JANE SNYDER, Notary Publi Highspire, Dauphin County EMY Commission Expires Sept 1 2010 So Answers, Sheriff of Daup o By Deputy Sheriff Deputy: LISA BRESSLER Sheriffs Costs: $41.25 7/8/2009 In The Court of Common Pleas of Cumberland County, Pennsylvania R.J.'s Transport, LLC Brenner Financial, Inc. 2222 Paxton Street Harrisburg, PA 17105 vs. Civil No. 2009-4386 Now, July 6, 2009, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. 5nentt of Cumberland County, PA Now, within upon at by handing to a and made known to me this day of 20Affidavit of Service Sworn and subscribed before 20 , at_______o'clock copy of the original So answers, Sheriff of COSTS SERVICE $ MILEAGE AFFIDAVIT M, served the the contents thereof. County, PA -am LAW OFFICES STEPHEN C. NUDEL, PC Stephen C. Nudel, Esquire Attorney ID #41703 Bret Keisling, Esquire Attorney ID #201352 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 R.J.' S TRANSPORT, LLC, Plaintiff V. BRENNER FINANCIAL, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA : NO. 09-4386 CIVIL ACTION -LAW PRAECIPE TO ENTER APPEARANCE Please enter the appearance of Bret Keisling, Esquire, Stephen C. Nudel, Esquire and Law Offices Stephen C. Nudel, PC, as attorneys for Defendant. Respectfully submitted, Date: <:? }-- 9, z C)o t LAW OFFICES STEPHEN C. NUDEL, PC Ste . udel, Esquire Attorney ID #41703 Bret Keisling, Esquire Attorney ID #201352 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Shane B. Kope, Esquire Kope & Associates, LLC 395 St. Johns Church Road Suite 101 Camp Hill, PA 17011 Date: 0 13 0 q 0 C` R LED --C,",- it CE OF THE 2009 SEP 10 AM l!: 11 ?.iI i 1 Ni ?'t R.J.'S TRANSPORT, LLC, PLAINTIFF V. BRENNER FINANCIAL, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-4386 CIVIL ORDER OF COURT AND NOW, this 11th day of September, 2009, upon consideration of Plaintiff's Motion for Preliminary Injunction, and review of correspondence from both counsel in this case, IT IS HEREBY ORDERED AND DIRECTED that Defendant Brenner Financial Inc., shall file its response to the Motion for Preliminary Injunction on ok' before September 18, 2009. IT IS FURTHER ORDERED AND DIRECTED that pending further Court Order, Brenner Financial Inc. shall take no action to repossess and/or sell any Of the vehicles subject to this action. A status conference with counsel shall be held on Tuesday, September 29, 2009, at 8:30 a.m. in chambers of Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, Shane B. Kope, Esquire /Attttorney for Plaintiff ? Bret Keisling, Esquire Attorney for Defendant bas r 1 1?k? - ?JA M. L. Ebert, Jr., J. FILED--C 1' CE OF THE PROO JONOTARY 2009 SEP i ! Fli 3, 3 6 LAW OFFICES STEPHEN C. NUDEL, PC Stephen C. Nudel, Esquire Attorney ID #41703 Bret Keisling, Esquire Attorney ID #201352 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 R.J.' S TRANSPORT, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff V. NO. 09-4386 BRENNER FINANCIAL, INC., Defendant : CIVIL ACTION -LAW DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION Defendant, Brenner Financial, Inc., by and through its attorneys, Stephen C. Nudel, Esquire, Bret Keisling, Esquire and Law Offices Stephen C. Nudel, PC respectfully submit this Response to Plaintiff's Motion for a Preliminary Injunction and in support thereof aver the following: Admitted. 2. Denied with clarification. In Defendant's Answer to the Complaint, Defendant avers that it is entitled to repossess the Peterbilt. By way of further clarification, the East Dump Trailer was repossessed prior to the filing of Plaintiff's Motion. Plaintiff's "reliance" on vehicles for which it has not paid its lease obligations is irrelevant. Defendant is entitled to repossess any vehicles for which Plaintiff refuses or is unable to pay, notwithstanding any effect it may or may not have on Plaintiff's business. w 3. Denied. It is denied that Plaintiff is the rightful owner of the Peterbilt and East vehicles. Plaintiff has failed to fulfill its payment obligations under lease agreements. Further, Defendant's intent to repossess any vehicles under the lease agreements is due to Plaintiff's multiple and repeated breaches of the lease agreements. 4. Denied. Although Plaintiff may or may not suffer harm, this is not the sort of harm that entitles it to preliminary injunction. Fundamentally, any harm Plaintiff suffers will be as a direct and sole result of its multiple breaches of its agreements with Defendant. 5. It is denied that Plaintiff will not suffer any appreciable injury if Plaintiff's Motion is granted. Defendant will be denied its legal rights under law and contract. Plaintiff now seeks to have the Court provide it with relief from Plaintiff's own breaches and defaults under its agreements with Defendant. 6. It is denied that Defendant's conduct is wrongful. It is further denied that Plaintiff's right is clear. To the contrary, it is clear by Plaintiff's own admission in its Complaint that it committed multiple breaches of its agreements with Defendant. 7. Denied. Plaintiff is clearly unlikely to succeed because its claims have no merit. 8. It is admitted that Plaintiff has no adequate remedy at law, because Plaintiff seeks a remedy for its own breaches and defaults of its agreements. This does not mean that Plaintiff is entitled to injunctive relief. 9. Although it is admitted that there is an underlying action, it is denied that said action would determine the "permanency" of any injunction. It is denied that a preliminary injunction is warranted at all. But regardless, the conclusion of the underlying action will negate the need for any injunction at all. WHEREFORE, Defendant respectfully requests this Honorable Court to deny Plaintiff's Motion for Preliminary Injunction. Respectfully submitted, LAW OFFICES STEPHEN C. NUDEL, PC Date: Ste p en C. ud 1, Esquire 7 Attorn 41703 Bret Keisling, Esquire Attorney ID #201352 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendant 0 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Shane B. Kope, Esquire Kope & Associates, LLC 395 St. Johns Church Road Suite 101 Camp Hill, PA 17011 Date: S'O' ` ??Z oc-n Bret eish , Es uire ")F 2009 SEP 18 F,l 2: C LAW OFFICES STEPHEN C. NUDEL, PC Stephen C. Nudel, Esquire Attorney ID #41703 Bret Keisling, Esquire Attorney ID #201352 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 R.J.' S TRANSPORT, LLC, Plaintiff V. BRENNER FINANCIAL, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 09-4386 CIVIL ACTION -LAW ANSWER, NEW MATTER AND COUNTERCLAIM AND NOW, comes Defendant, Brenner Financial, Inc., by and through undersigned counsel, Stephen C. Nudel, Esquire, Bret Keisling, Esquire and Law Offices Stephen C. Nudel, PC and in support of its Answer, New Matter and Counterclaim avers the following: 1. Admitted. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that the parties entered into a Closed-End Lease Agreement for a 2005 Peterbilt Tractor. By way of further response, the document attached as Exhibit "A" to Plaintiff's Complaint is a written document which speaks for itself and any attempt to characterize its contents is denied. 4. Admitted. By way of further response, Plaintiff did not fulfill its obligations under the April 2005 Agreement. 5. Admitted in part and denied in part. It is admitted that the parties entered into a Closed-End Lease Agreement for a 1988 East Dump Trailer. By way of further response, the document attached as Exhibit "B" to Plaintiff's Complaint is a written document which speaks for itself and any attempt to characterize its contents is denied. 6. Admitted. By way of further response, Plaintiff did not satisfy its obligations under the August 2005 Agreement. 7. Admitted in part and denied in part. It is admitted that the parties entered into a Closed-End Lease Agreement for a 2003 Kenworth Triaxle with Dump Bed. By way of further response, the document attached as Exhibit "C" to Plaintiff's Complaint is a written document which speaks for itself and any attempt to characterize its contents is denied. 8. Admitted. By way of further response however, Plaintiff did not satisfy its obligations under the 2006 Agreement. 9. Admitted in part and denied in part. It is admitted that the parties entered into a Closed-End Lease Agreement for a 1997 Mac Dump Trailer. By way of further response, the document attached as Exhibit "D" to Plaintiff's Complaint is a written document which speaks for itself and any attempt to characterize its contents is denied. 10. Admitted. By way of further response, Plaintiff did not satisfy its obligations under the June 2007 Agreement. 2 11. Admitted. 12. Admitted in part and denied in part. It is admitted that Plaintiff approached Defendant about combining four existing leases into a single lease. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments in this paragraph and such averments are therefore denied. 13. Denied as stated. Plaintiff did in fact enter into a fifth written Closed-End lease agreement ("Final Agreement") in November 2007. It is denied that Plaintiff "ostensibly" entered into said agreement. Further, Defendant's "offer" was in response to Plaintiff's request to lower its payments as stated in paragraph twelve of the Complaint. Further, it is clear that the November 30, 2007, Agreement incorporated the previous leases. Plaintiff's own conduct subsequent to the November 30, 2007, Agreement make this clear in that Plaintiff immediately stopped making any payments on the previous leases because they, in fact, had been absorbed into the November 30, 2007, Agreement. Nonetheless, the documents attached as Exhibit "B" to the Complaint are writings and any attempt to characterize their contents is therefore denied. 14. Admitted. 15. Admitted with clarification. The payments were a refinancing of the remaining balances due on the Kenworth, Peterbilt, East and Mac vehicles. 16. Denied. The Final Agreement clearly incorporates the subsequent outstanding balances. The value of the Kenworth is significantly less than the amount of 3 the Lease. In addition, Plaintiff's own conduct supports that the subsequent leases were combined. Plaintiff acknowledged in paragraph twelve of its Complaint that it had approached Defendant in order to reduce its lease payments. Further, subsequent to the November 2007 Agreement, Plaintiff did not make any payments whatsoever on the previous leases. 17. Denied. The Final Agreement incorporated the previous leases into its terms. By way of further response, Plaintiff's conduct makes clear that the Final Agreement included the previous leases, in that Plaintiff never made any payments whatsoever towards the previous leases after the Final Agreement was executed. 18. Denied. By the time Plaintiff entered into the Final Agreement with the Defendant, Plaintiff had paid a total of $54,124 or Twenty-eight (28) payments on the Peterbilt lease, leaving Plaintiff Eight (8) remaining payments in addition to late fees. Any attempt to characterize the remaining payments as `the relatively low amount due' is further denied. 19. Denied. By the time Plaintiff entered into the Final Agreement with the Defendants, Plaintiff had paid a total of $14,047.40 or approximately Twenty-three and one fifth (23 and 115) payments on the East lease, leaving Plaintiff approximately Six and four fifth's (6 and 4/5) remaining payments in addition to late fees. 20. Denied. Pursuant to Plaintiff's request, the Final Agreement incorporated all past due amounts into a single lease. Plaintiff now attempts to retroactively carve out 4 what payments were for what vehicles without regard to the contractual agreements and obligations arising from the Final Agreement. 21. Admitted in part and denied in part. It is admitted that Plaintiff fell behind on its payments pursuant to the Final Agreement. By way of clarification, as of May, 2009 Plaintiff had a past due balance in the amount of $16,993.19, or approximately ;Four and one fifth (4 and 115) payments in addition to late fees. 22. Admitted. 23. Admitted. 24. Denied. The original credit terms executed by Plaintiff expressly authorizes repossession. Moreover, repossession is permitted under law. 25. Denied. Plaintiff apparently attempts to characterize its payments as if the Final Agreement did not exist. It is irrelevant that Plaintiff under some circumstance or another would have fulfilled its obligations under past lease agreements. The fact of the matter is that Plaintiff, by its own admission, fell behind in its original leases, and then fell behind in the November 2007 Agreement. Its attempt to re-characterize its payments has no bearing on the simple fact that Plaintiff did not honor the November 2007 Final Agreement. 26. Denied. It is denied that Plaintiff accurately characterizes the effect of payments it made on its lease obligations to Defendant. Plaintiff is attempting to re- characterize payments and apply them to certain lease agreements even though, at its request, renegotiated the terms of its lease agreements. Once Plaintiff executed the Final Agreement, any attempt to apply subsequent payments to previous agreements is inaccurate and irrelevant. 27. After reasonable investigation, Defendant is without sufficient information to form a belief as to the accuracy of the averments in this paragraph and said averments are denied. 28. Denied as stated. Defendant did not offer Plaintiff an option to purchase the titles to the East or Peterbilt vehicles pursuant to April 2005 and August 2005 agreements because Plaintiff did not fulfill its obligations under those agreements. Moreover, when the obligations under these agreements were incorporated into the November 2007 Agreement at Plaintiff's request, Plaintiff failed to honor its obligations under that Agreement. Accordingly, Plaintiff did not fulfill its obligations and was not entitled to exercise a purchase option. 29. Admitted with clarification. Plaintiff admits that the Kenworth and Mac were not paid off. However, all of the remaining vehicles in Plaintiff's possession were incorporated into the November 2007 Agreement and Plaintiff was therefore in default on its remaining obligation to the Defendant. 30. Admitted in part and denied in part. It is admitted that Plaintiff has "offered" to purchase vehicles under an agreement that no longer exists. However, Plaintiff is not entitled to purchase any vehicles because of its default on the November 2007 Final Agreement. Subsequent to the filing of this Pleading, Defendant has lawfully repossessed all of the subject vehicles. 6 31. Admitted with clarification. It is admitted that Defendant has continued to maintain its right to repossess vehicles under its agreements with Plaintiff. However, Defendant has lawfully repossessed all of the subject vehicles. COUNT I: REPLEVIN 32. This is a paragraph of incorporation to which no response is required. 33. Denied as a legal conclusion to which no response is required. By way of further answer, it is denied that Defendant deprived Plaintiff of any rights to purchase any agreements, because Plaintiff defaulted on its agreements with Defendant, and therefore did not have an option available. Further, Defendant at all times has conducted itself in total accord with law and its contractual obligations. 34. Denied. It is denied that Plaintiff has performed all of its obligations arising under the November 2007 Agreement and prior agreements with Defendant. It is denied that Defendant refuses to transfer title to Plaintiff on the disputed vehicles. Plaintiff is in default of its obligations, and therefore is not entitled to a purchase option. 35. Denied as a legal conclusion to which no response is required. Moreover, it is specifically denied that Defendant has converted Plaintiff's property. Defendant has at all times acted in accordance with law and its contractual rights and responsibilities. 36. Denied as a legal conclusion to which no response is required. By way of further answer, Plaintiff does not have a right to possess any of the vehicles due to Plaintiff's breaches and defaults. 7 WHEREFORE, Defendant Brenner Financial, Inc., respectfully requests this Honorable Court enter judgment on its behalf and dismiss Plaintiff's Complaint with prejudice. COUNT II: BREACH OF CONTRACT 37. This is a paragraph of incorporation to which no response is required. 38. Denied. Plaintiff entered into multiple agreements with the Defendant. Previous agreements were incorporated into the November 2007 Agreement. Plaintiff's attempt to characterize the agreements between the parties is denied. Further, Plaintiff's own conduct with regard to payments belies its argument. 39. Denied as stated. Plaintiff would have been entitled to purchase the disputed vehicles for one dollar provided that Plaintiff fulfilled all of its obligations under the agreements. However, Plaintiff did not fulfill its obligations. It was in multiple breaches of the agreements prior to November 2007. The November 2007 Agreement incorporated at Plaintiff's request previous agreements. Despite the attempt to lower Plaintiff's payments, Plaintiff committed multiple breaches of the November 2007 Agreement. Therefore, Plaintiff was not entitled to exercise any purchase option under the Agreement. 40. Denied. Plaintiff s Complaint makes multiple admissions of Plaintiff's failure to pay Defendant sums due under the agreements. 8 41. Denied as a legal conclusion to which no response is required. By way of further answer, Plaintiff did not fulfill its obligations under the various agreements, and was not entitled to exercise a purchase option. 42. Denied as a legal conclusion to which no response is required. The averments in this paragraph are also denied because, after reasonable investigation, Defendant is without sufficient information necessary to form a response to these averments. WHEREFORE, Brenner Financial, Inc., respectfully requests this Honorable Court enter judgment in its behalf and dismiss Plaintiff's Complaint with prejudice. NEW MATTER 43. Paragraphs 1-42 above are incorporated herein as if set forth at length. 44. Plaintiffs claims are barred by the doctrine of unclean hands. 45. Plaintiff's claims may be barred by the doctrine of estoppel. 46. Plaintiff committed multiple breaches of its various agreements with Defendant. WHEREFORE, Brenner Financial, Inc., respectfully requests this Honorable Court enter judgment in its behalf and dismiss Plaintiff s Complaint with prejudice. COUNTERCLAIM: BREACH OF CONTRACT 47. Paragraphs 1-46 above are incorporated herein as if set forth at length. 48. As Plaintiff admits in its Complaint, it executed four (4) Vehicle Lease Agreements with Defendant for four (4) vehicles, a Peterbilt Tractor, East Dump Trailer, 9 Kenworth Triaxle with Dump Bed, and a Mac Dump Trailer. See Exhibits A through D to the Complaint. 49. As Plaintiff admits in its Complaint at ¶ 12, sometime prior to November 30, 2007, it approached Defendant about combining the four earlier lease agreements into one lease. 50. As Plaintiff admits in its Complaint, in November 2007 Plaintiff entered into a fifth Agreement ("Final Agreement") with Defendant. See Exhibit E to the Complaint. 51. As Plaintiff requested, and as the parties agreed, the Final Agreement combined the four earlier leases. 52. Plaintiff had a duty under the Final Agreement to make payments to the Defendant in the amount of $4,061.00 per month. 53. As Plaintiff admitted in its Complaint at ¶ 21, Plaintiff breached its duty to Defendant by failing to make payments as required under the Final Agreement. 54. Defendant has been harmed by Plaintiff's breach of the Final Agreement. 55. As a result of Plaintiff's breach, Defendant has repossessed the vehicles. that were the subject of the Final Agreement. 56. Plaintiff currently owes Defendant $47,459.08 under the Final Agreement. 57. Defendant sold at auctions all of the vehicles except a Peterbilt Tractor. 58. Upon sale at auction of the Peterbilt Tractor, Plaintiff will be entitled to a set-off of the amount the Peterbilt Tractor is sold for. 10 WHEREFORE, Defendant Brenner Financial, Inc., respectfully requests this Honorable Court enter judgment on its behalf, and award Defendant no more than $47,459.08 plus costs, attorneys' fees and whatever other such relief this Honorable Court deems proper. Date: '?: eiA \-7, 2o0 my Respectfully submitted, LAW OFFICES STEPHEN C. NUDEL, PC St hen . Nuael, Esquire Atto D #41703 Bret Keisling, Esquire Attorney ID #201352 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Defendant 11 'VER.1 I'ICATION 1, John R. McGlree-?j.,, C hic4' I,inancial Officer of Breancr I'in.-mcial, bic., being authorized to do so, vcriti' that the statements ill tlic foregoing tlocuirieni are true; nlxd correct to the best of my knowl(Age, information and belief I understand that an I'alse staterneuits herein arc made ubiect to the penalties of 18 Pa.C.'.S.A. Section 4904, relating to unmvorn falsilicat:ion. to authorities. BRENNER FINANCIAL, TNC'., Daut : oq_i 7-6 9 Y: John R. My ;( rreeti _ chic-I I'inancial Gf' er CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Shane B. Kope, Esquire Kope & Associates, LLC 395 St. Johns Church Road Suite 101 Camp Hill, PA 17011 Date: qetin , Esquire FLED 0l'r; ;E OF Ti c `; ; w o?rT` Ry 7013 15EP € 3 Pil 2: 03 CLUB fit` - r c k ?,'i, R.J.'S TRANSPORT, LLC, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. BRENNER FINANCIAL, INC., DEFENDANT NO. 09-4386 CIVIL ORDER OF COURT AND NOW, this 29th day of September, 2009, upon consideration of Plaintiff, R. J.'s Transport, LLC's Motion for a Preliminary Injunction, the Defendant's response thereto, and after status conference with counsel, counsel for the Plaintiff having indicated that the Plaintiff would be unable to post bond in the case, and that Plaintiff does not desire a hearing; The court finds that the issuance of an injunction in this case is not warranted in that Plaintiff cannot show a reasonable probability of success on the merits, Accordingly, IT IS HEREBY ORDERED AND DIRECTED that the Motion for a Preliminary Injunction is DENIED and the stay previously issued by the Court in its order dated September 11, 2009, is lifted. By the Court, M. L. Ebert, Jr., J. ,,.Xhane B. Kope, Esquire Attorney for Plaintiff Bret Keisling, Esquire Attorney for Defendant bas *??9-1 tie„ c ?Cua? l THE 2 9 6 9 S-EP 2 P1`1 2: GLb