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HomeMy WebLinkAbout10-2823ORIGINAL XPERT TECHNOLOGIES, INC., IN THE COURT OF COMMON PLEAS OF 205 House Avenue, Suite 103, : CUMBERLAND COUNTY, PENNSYLVANIA Camp Hill, PA 17011, : Plaintiff V. No. MICROBYTES, INC., CIVIL ACTION - EQUITY AND LAW 9401 McKnight Road, Suite 301-B, Pittsburgh, PA 15237, Defendant JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment 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 FF.F, OR NO FRE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 . n N y - ?J T } `-' co S¢ C) 9-2 ?D ?' ` a AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mds adelante en las siguientes pdginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despu6s de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mds aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 *an AKER WILLIAMS, P.C. Dated: April 28, 2010 By Sine y, I.D. #2 190 . Pappas, I.D. #200103 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Plaintiff XPERT TECHNOLOGIES, INC., 205 House Avenue, Suite 103, Camp Hill, PA 17011, Plaintiff V. MICROBYTES, INC., 9401 McKnight Road, Suite 301-13, Pittsburgh, PA 15237, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. CIVIL ACTION - EQUITY AND LAW : JURY TRIAL DEMANDED COMPLAINT AND NOW COMES Plaintiff, Xpert Technologies, Inc., by and through its attorneys, Shumaker Williams, P.C., to respectfully state and aver the following Complaint against MicroBytes, Inc.: PARTIES 1. Plaintiff, Xpert Technologies, Inc. ("Xpert"), is a Pennsylvania corporation with a registered business address of 205 House Avenue, Suite 103, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Xpert is a provider of computer programming and consulting services. 3. Defendant, MicroBytes, Inc. ("MicroBytes"), is a Pennsylvania corporation with a business address of 9401 McKnight Road, Suite 301-B, Pittsburgh, Pennsylvania 15237. 4. MicroBytes is a software consulting and development company which provides software consulting services and training to its customers. FACTS 5. A Supplier Agreement was entered into and executed by Xpert on December 8, 2008 and by MicroBytes on January 2, 2009, whereby Xpert would introduce technical services personnel candidates to MicroBytes and MicroBytes would submit technical services personnel to provide to clients of MicroBytes. A copy of the Supplier Agreement is attached hereto as Exhibit "A." 6. MicroBytes employed Xpert in the capacity of a "tester" in order to provide necessary expertise in software design and development projects as assigned by MicroBytes. 7. For the project at issue in this action (the "Project"), the ultimate client was U.S. Steel, which engaged the services of Logix Guru; Logix Guru, in turn, engaged the services of MicroBytes. 8. As a practical matter, the relationship between Xpert and MicroBytes was similar to that of a subcontractor (MicroBytes) and sub-subcontractor (Xpert). 9. MicroBytes then submitted a Purchase Order, dated October 28, 2008, to Xpert for services to be rendered by the Xpert's employee, Badari Mallireddy (the "Consultant"), to MicroBytes' client (and ultimately to U.S. Steel). A copy of the October 28, 2008 Purchase Order is attached hereto as Exhibit "B." 10. Pursuant to the Supplier Agreement, Xpert, through the Consultant, provided hourly consulting services for the Project to U.S. Steel, by way of the contract between Xpert and MicroBytes. 11. Xpert, through the Consultant, provided MicroBytes with all consulting services required by the Supplier Agreement and dutifully completed the performance required by such contract. 2 12. The Consultant's salary, wages, fees, and expenses were paid directly by Xpert, and Xpert expected to be reimbursed for these costs by way of the Supplier Agreement with MicroBytes. 13. Pursuant to the Supplier Agreement, the Consultant provided his services on an hourly basis and submitted the required time records for hours worked on the Project. Copies of the time records are attached hereto collectively as Exhibit "C." 14. Xpert submitted invoices for these consulting services to MicroBytes by Invoices dated February 3, 2009, March 3, 2009, May 18 2009, April 8, 2009, and April 15, 2009. Copies of the invoices are attached hereto collectively as Exhibit "D." 15. Pursuant to the terms of the Supplier Agreement and Purchase Order, all Invoices were to be paid within thirty (30) days. 16. The invoices attached hereto as Exhibit "D" remain unpaid, despite Xpert's best efforts to collect such sums due and owing. 17. The amount due and owing from MicroBytes to Xpert pursuant to the Invoices attached hereto as Exhibit "D" is $14,770.00. 18. Upon information and belief, MicroBytes was fully compensated for the services rendered by Xpert's employee by Logix Guru and/or U.S. Steel. 19. MicroBytes, despite being fully paid for services rendered by the Consultant provided by Xpert, has failed or refused to pay Xpert for the Invoices attached hereto as Exhibit «D 3 20. Although the Supplier Agreement, at paragraph 17, purports to require that any action related to the Supplier Agreement be brought in Massachusetts, this term is, upon information and belief, a mistake or drafting error by MicroBytes, which drafted the contract. 21. Neither Xpert nor MicroBytes are residents of Massachusetts, and the Supplier Agreement neither required nor contemplated that any services would be rendered in Massachusetts. 22. Accordingly, Massachusetts is not an appropriate forum for this action. 23. Only Pennsylvania is an appropriate forum for this action since both parties are residents of Pennsylvania, regularly conduct business in Pennsylvania and all services rendered pursuant to the Supplier Agreement were performed in Pennsylvania. 24. Cumberland County is an appropriate venue for this action because Xpert is located in Cumberland County and MicroBytes conducted business in Cumberland County by negotiating and entering into the Supplier Agreement with Xpert technologies in Cumberland County. COUNTI BREACH OF CONTRACT 25. The averments of paragraphs 1 through 24 above are incorporated herein by reference as if set forth in their entirety. 26. Xpert and MicroBytes entered into a written contract whereby Xpert would provide consulting services to MicroBytes' client. See Exhibit "A." 27. Xpert fully performed all acts required of it by the Supplier Agreement. 4 28. The Supplier Agreement executed by MicroBytes and the Purchase Order for the Consultant require that MicroBytes pay Xpert's Invoices within thirty (30) days. 29. Pursuant to the Supplier Agreement, the Consultant submitted complete and accurate time records, which were then used to generate invoices submitted to MicroBytes. 30. The Invoices attached hereto as Exhibit "D" were not paid within thirty (30) days and remain unpaid as of the date of the filing of this Complaint. 31. MicroBytes' failure to pay Xpert the amount of each Invoice within thirty (30) days is a breach of the terms of the Supplier Agreement entered into between the parties. 32. As a result of this breach, Xpert has suffered damages in the amount $14,770.00. 33. The Supplier Agreement specifically permits the prevailing party in any action to recover the costs and fees association with such action. See Supplier Agreement, attached hereto as Exhibit "A," at paragraph 18. 34. Accordingly, Xpert requests that this Court award it attorneys' fees and the costs of this suit. WHEREFORE, Plaintiff, Xpert Technologies, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, MicroBytes, Inc., in the amount of $14,770.00 plus costs, attorneys' fees, interest, and any additional relief this Honorable Court deems appropriate. COUNT II UNJUST ENRICHMENT 35. The averments of paragraphs 1 through 34 above are incorporated herein by reference as if set forth in their entirety. 5 36. Xpert provided consulting services to MicroBytes with a value of $14,770.00 which has not been paid by MicroBytes. 37. MicroBytes accepted and retained the benefits of the services provided by Xpert. 38. It is believed and therefore averred that MicroBytes received payment from Logix Guru and/or U.S. Steel for the services provided by Xpert, and MicroBytes has retained the benefits of such payments. 39. Due to MicroBytes' failure to pay Invoices submitted by Xpert, MicroBytes has been unjustly enriched in the amount of $14,770.00. WHEREFORE, Plaintiff, Xpert Technologies, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, MicroBytes, Inc., in the amount of $14,770.00 plus costs, attorneys' fees, interest, and any additional relief this Honorable Court deems appropriate. COUNT III QUANTUM MERUIT 40. The averments of paragraphs 1 through 39 above are incorporated herein by reference as though set forth in their entirety. 41. Xpert provided a benefit to MicroBytes by rendering consulting services to MicroBytes' client. 42. MicroBytes has received the full benefit of Xpert's consulting services, but has failed or refused to fully compensate Xpert for such consulting services. 43. Xpert is entitled to be paid $14,770.00 from MicroBytes, representing the value of the unpaid consulting services provided by Xpert to MicroBytes. 6 WHEREFORE, Plaintiff, Xpert Technologies, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, MicroBytes, Inc., in the amount of $14,770.00 plus costs, attorneys' fees, interest, and any additional relief this Honorable Court deems appropriate. Respectfully Submitted, SHUMAKER WILLIAMS, P.C. Dated: April 28, 2010 By *Tf-mey,I.D. 209190 Evan C. Pappas, I.D. #200103 P.O. BOX 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Plaintiff :230419 7 Dec 05 08 04:44p Microbytes 4128472559 p,2 i iauBri,Fs INC. } SUPPLIER AGREEMENT This AGREEMENT made effective as of the 1" day of November 2008 between MICROBYTES INC, with offices at 9401 McKnight Road, Suite 301-13, Pittsburgh, PA 15237 (hereinafter "Vendor") and X-pert Technologies Inc, hereinafter (hereinafter "Supplier") with offices at 205 House Avenue, Suite 103, Camp Hill, PA 17011, whose Federal Tax ID No. is 20-2297565. WHEREAS Vendor's business is locating technical services personnel for various clients, including the client (hereinafter "Client") listed in any Purchase Order (Exhibit A) executed by Vendor and Supplier and attached to this Agreement, to provide technical services to Client according to the Client's specifications; and WHEREAS Supplier agrees that Vendor will spend substantial resources and time evaluating, qualifying, proposing and/or providing Supplier's technical services personnel to Client, and that Vendor was selected by Client to provide such personnel to Client at the Client locations listed in any attached Purchase Order; and WHEREAS Supplier is in a similar business and desires to join efforts with Vendor for the purpose of providing qualified candidates for the Client of Vendor; and WHEREAS Vendor and Supplier wish to enter into an Agreement pursuant to which Supplier will introduce technical services personnel candidates to Vendor and Vendor may submit said technical services personnel to provide their services to Client. NOW THEREFORE, in consideration of the mutual promises and covenants, the parties agree as follows: 1) DIRECT CONTACTS The Supplier agrees that it will not communicate in any fashion with the Clients technical or administrative (including contracting, procurement, human resources, ctc.) personnel concerning any effort to provide technical services to Client by any of Supplier's technical services personnel except that Supplier's technical services personnel may communicate with the Client concerning those technical services already being performed by Supplier through Vendor under this Agreement. Supplier will communicate directly and exclusively through Vendor in regard to any additional services not already being performed by Supplier under this Agreement. 2) BILLING AND PAYMENT If Supplier's candidates are selected by Client to provide services, Supplier will be compensated by Vendor in accordance with a Purchase Order (Exhibit A) to be attached hereto for each individual who provides such services through Vendor. Billing cycle for all said invoices is Net 30. (No exceptions). A billable hour shall be defined as any hour the Supplier's technical services personnel has worked at the Client site that is recorded on Vendor's timesheet and has been approved by an authorized representative of the Client countersigning the timesheet. The periods for reporting hours are on a weekly basis, the candidate must fax the timesheet to the Vendor no later than 10:00 am on the first business day following the end of each period indicated above. Should Supplier be required to complete a Client timesheet along with Vendor's timesheet, the Supplier must ensure that the same information is on both documents. This is critical information for Client billing and Vendor's payment to Supplier. Invoices are accepted for every two weeks of work performed and needs to be sent to Microbytes Inc , Accounts Payable Department, Po. Box 2019, Pittsburgh, PA 15230 Payments are approved as per the Net 30 terms after the invoice is received. 3) WARRANTY OF SERVICES Vendor shall submit Supplier's technical services personnel to Client according to the qualifications, experiences, and project re uirements of the Client. It is within the Vendor's discretion Exhibit "A" `? Doc 05 08 04:45p Microbytes 4128472559 P.3 whether to propose such personnel to Client. The work to be performed by the technical services personnel providing services under this Agreement shall be set forth by Client and stated in a Purchase Order (or similar IP-M form). If Client chooses to terminate the services of Supplie?s personnel for any reason, including but not limited to unsatisfactory performance, Supplier will be compensated only for services approved and paid for by Client. 4) CONFIDENTIALITY Supplier and its technical services personnel agree not to disclose to any third party information relating to Vendor, its agents, or its clients, if such information could reasonably be construed as confidential. For the purpose of this paragraph, Confidential information includes, but is not limited to, the identity, prior requirements, and present or future particular needs, of Vendor or Vendor's Clients, the identity of and background information about management personnel of Vendor's Clients; information regarding the existence of and details about any openings for which a candidate may be proposed or interviewed or has learned about through such interviews, the identification of Vendor's Clients in regard to openings; profit margins, pricing policies and practices, in general and as to particular Clients; sales and marketing techniques, history, data forecasts and material, in general and as to particular Clients; development plans, personnel training techniques and materials; information which relates to Vendor's or Vendor's Clients' actual or anticipated products, software, research inventions, processes, techniques, designs or other technical data; and any other proprietary information belonging to Vendor or Vendor's Clients. The Supplier and Supplier's technical services personnel must not disclose his/her rate of compensation to any other Vendor employee or consultant or any Client employee or other consultant on the same client site or any other Vendor Client site. 5) NON-SOLICITATION OF PERSONNEL OR CLIENTS (A) During the term of this Agreement and for a period of two years after its termination: (i) Vendor agrees that it will not hire or solicit for hire any of Supplier's technical services personnel who was performing services through Vendor for Client pursuant to this Agreement or any other Supplier personnel about whom Vendor received information or to whom it was introduced as the direct result of any services performed pursuant to this Agreement. (il) Supplier agrees that it will not hire or solicit for hire any of Vendor's personnel, consultants, or any Client personnel about whom it has received information or to whom it was introduced as the direct result of any services performed pursuant to this Agreement. (B) During the term of Supplier's performance of services for a Client on behalf of Vendor and for one year after the termination of the performance of such services, Supplier agrees that it will not, at a restricted location as set forth in paragraph (E) below, provide or attempt to provide (or advise others of the opportunity to provide) other than through Vendor, directly or indirectly, any services to any Client to which Supplier is providing or has provided services through Vendor. The patties recognize that there may be occasions after the termination of this Agreement in which Supplier is contacted to supply technical services personnel directly or indirectly to Client. These occasions include, but are not limited to the following: (1) Client requests candidates directly from Supplier; (2) requests from other vendors to Client for candidates from Supplier to perform services for Client; or (3) addition of Supplier to the Client's "vendor list" (hereinafter "New Eligibility Occasions"). Supplier agrees that, even though a New Eligibility Occasion may arise, it will refuse any request to assign any of its technical services personnel to provide services for Client, directly or indirectly in a restricted location, during the restricted period; provided, however, that Supplier may comply with such a request by supplying its technical services personnel through Vendor. (C) For the purposes of this Paragraph 5, the term "Client" includes any customers, contractors, subcontractors, or clients of the Client for whom Supplier's personnel performed services or for whom Vendor proposed that Supplier would perform services in a restricted location during the restricted time period under this Agreement. (D) The "restricted period" shall begin on the later of the date of the last performance of services or the date of the last proposal submitted by Vendor to Client. The Restricted period shall end on the latest of the following dates: (1) Two year from the date on which any technical services personnel last performed services for Client under this Agreement; (2) two year from the date on which Vendor last proposed a particular individual to Client; or (3) two year from the date on which an interview with Client arranged by Vendor took place. (E) The "restricted location" shall be any Client facility located within a 25-mile radius of the Client facility at ? L Dec 05 08 04:45p Microbytes 4128472559 p,4 which or for which Supplier's personnel last performed services, was assigned to perform services, or was introduced to or interviewed by the Client to perform services. 6) NOTICE OF TERMINATION This agreement may be terminated by either party upon thirty (30) days written notice, provided, however that Vendor may terminate a purchase order upon shorter notice, or no notice, at the Client's request. The provisions in paragraphs 4, S, and 15 shall survive the termination of this Agreement. A purchase order may be terminated only upon (30) days written notice and no earlier than the agreed upon "end date" as stated in section one of the purchase order. Supplier may, however, terminate a purchase order by refusal of extension with (30) days prior written notice as stated in section two of the purchase order. 7) INSURANCE Before providing services, Supplier will obtain for itself and its personnel at its own expense, comprehensive General Liability (GL) insurance coverage for projects covered by this Agreement, for limits of liability not less than $1,000,000.00 and, if available under state law, worker's compensation coverage with limits of not less than $1,000,000.00 and will name Vendor as Additional Insured and provide a copy of the binder, the policy or a certificate of insurance to Vendor upon request. 8) T-UBELM Because of the independent status of Supplier, it is solely and completely accountable for the services it provides to the Client. Neither Vendor nor the Client, nor any of Client's contractors, subcontractors, Customers or Clients, shall have any liability whatsoever to any party for such services provided by Supplier or its personnel. Vendor will not indemnify Supplier for any liability incurred by Supplier, or its technical service personnel. Although Vendor will act in good faith to describe the task requirements set forth by the Client, Vendor has no right to control any aspect of the project on which Supplier will be working. Moreover, Supplier and/or its technical services personnel will have the opportunity to discuss task requirements directly with the Client prior to acceptance of the project offered by the Client. Supplier, therefore, releases Vendor from any liability relating to representations about the task requirements or to the conditions under which Supplier will be working. Supplier shall indemnify Vendor if Supplier causes Vendor to breach its agreement with the Client. Supplier also agrees to release Vendor from any liability for statements made by Vendor, without malice, to third parties who may inquire about Supplier's performance. 9) EXPENSES No travel, living, and/or entertainment costs will be paid by Vendor. Whether the Client for whom Supplier is performing services will pay any such costs is a matter between Supplier and the Client. Supplier should include in its invoice any reimbursable expenses authorized by the Client in accordance with industry practice. Vendor will not pay for or provide training, tools, equipment or other materials to Supplier. Supplier's invoiced hours will include no time spent in formal training and Supplier represents that it is not being provided such formal training by Vendor, the Client or anyone acting on behalf of Vendor or Client. 10) EMPLOYEES Supplier agrees that any technical services personnel provided by Supplier are employees of Supplier and are not employees of Vendor or Client; that Supplier at all times retains the primary control over its personnel, including the right to recruit, qualify, hire, terminate, set compensation and benefits, establish codes of conduct, monitor, discipline, establish minimum or maximum work hours and other conditions of work; that Supplier's personnel will not be entitled to any rights, benefits or privileges provided by Vendor or Client to its own employees; that neither Vendor nor Client will be liable fur payment of employment taxes, worker's compensation, previous sponsorship/visa fees, or other benefits provided to Supplier's personnel, and that Supplier is responsible for these matters and for paying/withholding FICA, FUTA, FIT and similar taxes with respect to its Employees; that Supplier's personnel will abide by the confidentiality and restrictive covenant provisions of this Agreement; and that Supplier will advise its personnel and obtain their agreement to the foregoing in writing prior to the commencement of their services hereunder through execution of the Agreement for Supplier's Employee (attached as Exhibit B hereto). Supplier shall indemnify and hold harmless Vendor from all damages, costs and expenses resulting from any claims by Supplier's personnel that such personnel for benefits and/or are covered by the Client's or Vendor's employee benefit plans. 11) CON[PL ANCE WITH LAWS ON USE OF ALIEN WORKERS If applicable, for each employee provided by Dec 05 08 04:46p Microbytes 4128472559 p,5 the Supplier to Vendor, Supplier agrees and warrants that it will comply with all laws related to work being performed by alien workers in the United States including, but not limited to, the following: (A) Supplier is a United States of America ("USA") corporation. Supplier's technical services personnel will be employees of such corporation, and such corporation will be their employer. Accordingly, the personnel will be on the payroll of such corporation that maintains copies in the USA of all payroll, wage and hour, and similar records required by the United States Department of Labor. (B) Supplier's sponsored employee must have a valid H-IB visa based on a Labor Condition Application ("LCA") validly filed and maintained by Supplier. For all work performed in the USA, Supplier's sponsored technical services personnel will be paid the higher of the actual or prevailing wage in accordance with the LCA for such work in the locality where the work is being performed. Supplier represents that such wage will be properly stated on the LCA required to be filed with the Department of Labor for such employee, and such wage does not and will not include the value of any non-cash or in-kind benefits such as apartment or auto rentals, or any amounts reimbursed to the employee as per diem expenses, or the value of any other such fringe benefits. For each employee under this Agreement, Supplier will provide a copy of the LCA to Vendor. (C) Supplier represents that it is responsible for and in control of the payment of wages to its employee(s) under this Agreement, and that all required federal, state and local taxes, whether income, employment, excise or of any other type, will be paid by Supplier as the employer of all personnel under this Agreement. In the event that Vendor is requested to make payments directly to any entity other than Supplier, which shall be in the sole discretion of Vendor, and if such entity is not a USA corporation, then Supplier shall ensure that such entity has filed with federal, state and local authorities all documentation and statements required for such entity to receive payments from Vendor without any back-up or other withholding by Vendor from such payments, and Supplier will provide Vendor with copies of such documentation and statements (CL, IRS Form 4224). (D) Supplier agrees that Vendor may require the technical services personnel provided pursuant to this Agreement to execute such forms as Vendor may request to confirm the representations in this Agreement, including INS Form I.9. (E) Supplier agrees that any breach of the above provisions in paragraphs A through D shall constitute a material breach of this Agreement with Vendor. 12) ASSIGNMENT Neither party may assign or otherwise transfer this Agreement or any interest hereunder to any third party without the prior written consent of the other party. This Agreement shall be binding upon and inure to the benefit of heirs, successors, assigns, and delegates of the parties hereto. 13) NOTICES Any requirement to "notify" or for "notice" or "notification" in connection with the subject matter of this Agreement shall be in writing and shall be effective either when delivered personally to the party for whom intended, or five (5) days following the deposit of the same into the United States mail, certified mail, return receipt requested, addressed to such party at the address set forth on page 1 of this Agreement. Either party may designate a different address by notice to the other given in accordance herewith. 14) SEVERAWLITY If any term or provision of this Agreement shall be found by a court of competent jurisdiction to be illegal or otherwise unenforceable, the same shall not invalidate the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the courts opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth. 15) RIGHTS TO OWNEWMIP OF DOCUMENTATION Supplier and Vendor hereby agree that all material, documentation and other tangible expressions of information including but not limited to software programs and software documentation, technical data or marketing data as applicable, whether in final production or draft, Jah 06 09 03:46p Microbytes 4128472559 p•1 wr nacrooyt*s 4lze172S59 p•6 which melon ft= any work palbttoed by Venda of supplier tb the Client, Chad be deemed to be wort made for lust AM In nSb% tick and bust m thall bdusi# crtdusively to Client unica odar srfas>jgemettts have been adered to by all pis to wntt* 14) This Apemeat and any written Purchaw Orden, Addmdtmp a Ertbibits esoeettbd hneurtder, cocain the attire teat btxweert die patties hesdo wide gnme ro the nnttate covered berth. $"A& acbcwkdp that it a e90* taro Wit Apeemeat sober oo the basis d' the &PUMW GW npeeeettudom m ftincd herein. This Apu nwo shall = be tttodit in any way excspt at Speed 0 is wfk* AM sidaed by bad pn* aW =dog eapteWy that U ?wwttutes a atodineatton ordw AgevmWa In L&K The it car ad larrs of clot stage of PENNSYLVANIA shW pveta rWs A$m meta, wlt m a pd to is rmRk:t of bw rNIM Wd lay lawsoib oateinias c0 this Aptemm or the secvics pmvWM hereunder shell be decided iM the kdwd or sued cow m the we of mome tumb. Suppliet ht:ttby =wen a the caattitt of jvrlydittioe over it by suck not m. lei) AU&M Slane mommary dump are Win* to Ascertain sad as likely to be inadequate to wmpmm ckw party is tk case deny btridt of dlk Apervowt by the ether patty, the pardw agm that CWW patty died be... r d m 41110k *WOW& temporary std Pumarseaq for uty brach a PVpwat Weak of" Apecomea . In WWmd addition, the petty wbo it bond to have bmdwd this Apeematt shaU bt bW lbr say dslrtap, wta duel tka ko do ot)terforany mid AMlosms, w &W odd UtbtAldes inW? also W* to Wma* and hold truce LckxW* to any blanch of the ob0ja0m m 60 he tio. mm and %a, trlaeit>d Farad alt tidier ofs By: (TryW or primed) Tide. rd?C O Date: For esd an bd aifob suwieie'e Notate: X Pert TutmoIoptet, Inc By: (Amborieed @iVu t m) (7yp? ar ruined) Titer. Q D $c' I Due: u c p EWMt Ali -? 7_ct?e (Fedusl ID Ivwnbef) .. Dec 05 08 04:46p Microbytes 4128472559 p.6 which result from any work performed by Vendor or Supplier for the Client, shall be deemed to be works made for hue and all rights, title and interest shall belong exclusively to Client unless other arrangements have been agreed to by all parties in writing. 16) cone ETE GRFpNIErrr AND AMEMMI T This Agreement and any written Purchase Orders, Addendums or Exhibits executed hereunder, contain the entire agreement between the parties hereto with respect to the matters covered herein. Supplier acknowledges that it is entering into this Agreement solely on the basis of the agreements and representations contained herein. This Agreement shall not be modified in any way except as agreed to in writing and signed by both parties and stating expressly that it constitutes a modification of this Agreement. 17) L&W The internal laws of the state of PENNSYLVANIA shall govern this Agreement, without regard to its conflict of law rules, and any lawsuits pertaining to this Agreement or the services provided hereunder shall be decided in the federal or state courts in the state of Massachusetts. Supplier hereby consents to the exercise of jurisdiction over it by such courts. 18) Since monetary damages are difficult to ascertain and are likely to be inadequate to compensate either party in the case of any breach of this Agreement by the other party, the parties agree that either panty shall be entitled to injunctive relief (both temporary and permanent) for any breach or proposed breach of this Agreement. In addition, the parry who is found to have breached this Agreement shall be liable for any damages, costs and fees incurred by the other non-breaching party and relating to such breach. Each party also agrees to indemnify and hold harmless the other for any and all losses, costs and other liabilities incurred, including costs and fees, relating to any breach of the obligations set forth herein. For and on behalf of. NUCROBYTES INC By: _ Title: Date: (Authorized signature) (Typed or printed) For and on behalf of: Supplier's Name: X-Pert Technologies, Inc By: - V (Authorized signature) L ?NA (Typed or printed) _ n Title: C'o < C") ' V;Ay Date: i `) C S G<< EIN#: (Federal ID Number) Oct 28 08 02:12p Microbytes 4128472559 p.1 M1c"1U13Y I F-s IN(.. October 28*, 2008 SUBJECT: PURCHASE ORDER COMPANY : PERT TECHNOLOGIES INC FEDERAL ID # 20-2297565 ADDRESS : CANDIDATE SKILLS LOCATION : DURATION : START DATE RATE HOUR PER WEE INVOICE Accepted By : Name / Title : 205 HOUSE AVENUE SUITE 103 CAMP HILL, PA 17011 BADARI MALLI REDDY QA TESTER PITTSBURGH 12 MONHTS TBD 35/HR ON CORP TO CORP BASIS 'K: 40 PLUS OVER TIME NETT 30 Should you require additional information, do not hesitate to contact me at (412) 847 2555. Sincerely, Jay `Mahood MicroBytes Inc 9401 McKnight Rd, Suite 301 B, Pittsburgh, PA 15237 Phone: 41 7 2559 c? Exhibit "B" ? J L. 0 co X tp C 2 G .0. X N r x J O m ?RWE "C" S N a r '+ 222 '? 0 v N O ? X i x [? ?\\Ac 'K W + C ? W " u m = ? a r ? as ° e N th IA G c A b Y V I A N o' tp X C 2 3 V1 X N N CO y 3 3 = • 3 a 3 CD » o "I o - et o 0 p w n ??! w m O tv .. O ° ? ?: C ?p A p ? C ? y ? m Z w .. m d m o ? p CL ? W ? bd A Q 00 ?o N w Z O D o o .b ! 00 o A ? C G m A C O 00 "p A ? y o ? N L RN., O O b m m ? N W W ? 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O O ? n ? N ? v A ? O J ro A a 00 A N Xpert Technologies Inc 205 House Avenue Suite 103 Camp Hill, PA 17011 Bill To MicroBytes Inc. PO BOX 2019 Pittsburgh, PA 15230 Invoice Date Invoice # 2/3,2009 407 P.O. No. Terms Project Net 7 Quantity Description Rate Amount 88 Consulting services for Badari Mallireddy from 01/16/09 to 01/30/09 35.00 3,080.00 e appreciate your prompt payment. Total 53.080.00 Exhibit "D" Xpert Technologies Inc 205 House Avenue Suite 103 Camp Hill, PA 17011 Bill To MicroBytes Inc. PO BOX 2019 Pittsburgh, PA 15230 Invoice Date Invoice # 33;2009 421 P.O. No. I Terms I Project Net 30 Quantity I Description 80 I Consulting services for Badari N Mallireddy from 02/16/09 to 02/27/09 Rate I Amount 35.001 2,800.00 z appreciate }our prompt payment. Total S2.800.00 Xpert Technologies Inc 205 House Avenue Suite 103 Camp Hill, PA 17011 Bill To MicroBytes Inc. PO BOX 2019 Pittsburgh, PA 15230 Invoice Date Invoice # 3/18/2009 431 Xpert Technologies Inc 205 House Avenue Suite 103 Camp Hill, PA 17011 Bill To MicroBytes Inc. PO BOX 2019 Pittsburgh. PA 15230 Invoice Date Invoice # 4,'W2009 442 P.O. No. Terms Project Net 30 Quantity Description Rate Amount 94 1 Consulting services for Badari N Mallireddy from 03/16/09 to 03/31/09 35.00 3,290.00 ?k e appreciate %our prompt payment. Total 53.290.00 Xpert Technologies Inc 205 House Avenue Suite 103 Camp Hill, PA 17011 Bill To MicroBytes Inc. PO BOX 2019 Pittsburgh, PA 15230 Invoice Date Invoice # 4/15!2009 445 P.O. No. I Terms I Project ----] Net 30 Quantity I Description 80 I Consulting services for Badari N Mallireddy from 04/01/09 to 04/15/09 We appreciate your prompt payment. Rate I Amount 35.00 2,800.00 Total 52.800.00 VERIFICATION The undersigned, Kris Putluri, hereby verifies and states that: 1. He is the Treasurer of the Plaintiff in the within action; 2. The facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief; and He is aware that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. XPERT TECHNOLOGIES, INC. Dated: '? 1`I 2 6 `LaIU By. P4 , Q1?Awsa KKr]iss-Putluri, Treasurer SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~¢~~t~~ ~t ~~tir~t~rr~~~ a ~:> f ~~{~ ~`~ ~ ~ ti~rti~r-~ i ~;Ttr~'R~ Jody S Smith Chief Deputy Edward L Schorpp Solicitor 2010 ~~~ I S AM 9~ 3~ r E~~~~~'~~L4'~~'IH Xpert Technologies, Inc. vs. Microbytes, Inc. Case Number 2010-2823 SHERIFF'S RETURN OF SERVICE 04/29/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: MicroBytes, Inc., but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Allegheny County, PA to serve the within Complaint and Notice according to law. 05/10/2010 Allegheny County Return: And now, May 10, 2010 at 1500 hours I, William Mullen, Sheriff of Allegheny County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for Microbytes, Inc. the defendant named in the within Complaint and Notice and that I am unable to find them in the County of Allegheny and therefore return same NOT FOUND. Deputies were advised the defendant has moved from 9401 McKnight Road Suite 301-B, Pittsburgh, PA 15237. SHERIFF COST: $37.44 May 14, 2010 SO ANSWERS, ~.... RON R ANDERSON, SHERIFF ;',ri CountvSuite Sherrf~f. Telecsoft. H?c. In The Court of Common Pleas of Cumberland County, Pennsylvania pert Technologies, Inc. vs. l~ Y Microbytes, Inc. ~`~ 9401 McKnight Road, Suite 301-B Pi tsburgh, PA 15237 Civil No. 2010-2823 Now, Apri129, 2010, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Alleg eny County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. of Cumberland County, PA Affidavit of Service Now, I I l ~ , 20 C7, at 3~ o'clock ~M, served the within upon at by handing to a and made known to copy of the original ~ V~ the contents thereof. So answers, ~ ~~~~ Sworn and subscribed before me this day of ,20 Sheriff of / COSTS SERVICE $ MILEAGE_ AFFIDAVIT County, PA XPERT TECHNOLOGIES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff, :CUMBERLAND COUNTY, PENNSYLVANIA v• No. 10-2823 Civil MICROBYTES, INC., :CIVIL ACTION -EQUITY AND LAW Defendant :JURY TRIAL DEMANDED C N O ~n PRAECIPE TO REINSTATE COMPLAINT ~?rT- Q `` r~T~ ;i f.-~ TO THE PROTHONOTARY: ~ c~ ~' "tj {-''''~ ~, ~- Please reinstate the Complaint filed in the above-captioned matter ~ ~ n= `; ~?, . SHUMAKER WILLIAMS, P.C. 3s Dated: June 25, 2010 g n P. Siney, I.D. # 190 van C. Pappas, LD. #200103 P.O. Box 88 Harrisburg, PA 17108 (717)763-1121 Attorneys for Plaintiff :232282 O ~-~ s~~o ~,#a~~aR 1 SHERIFF' OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ~~~~ir Gt ~ItIN~pC/$~~ ~;~ ..~ v14~' ~~~: t: ~u; :. t; =~,- ~1'FfiCE Q~ 'err c..~RIFF ZOEO ~ii~~ 3 ~ ~~.~, ~ ~1 '~t~ Xpert Technologies, Inc. vs. Microbytes, Inc. Case Number 2010-2823 ERIFF'S RETURN OF SERVICE 06/28/2010 Ronny R. Anderson, Shl and inquiry for the withir bailiwick. He therefore c Notice according to law. 07/15/2010 riff who being duly sworn according to law states that he made a diligent search named defendant, to wit: Microbytes, Inc., but was unable to locate them in his :putized the Sheriff of Allegheny County, PA to serve the within Complaint and Allegheny County Retur :And now, July 15, 2010 I, William Mullen, Sheriff of Allegheny County, Pennsylvania, do hereb certify and return, that I made diligent search and inquiry for Microbytes, Inc. the defendant named in the within Complaint and Notice and that I am unable to find them in the County of Allegheny and therefore return same NOT FOUND. Request for service at 8150 Peny Highway Suite 335 Pittsburgh, PA 15237 M crobytes, Inc. was not found. SHERIFF COST: $37.44 July 15, 2010 SO ANSWERS, ~...... RON R ANDERSON, SHERIFF (c) CountySuite Sheriff, Teleosoff. Inc. In Tl~e4 Court of Common Xpert Technologies, Inc. vs. Microbytes, Inc. 8150 Perry Highway Suite 335 PA 15237 June 28, 2010, I, SHF ;ounty to execute this V' ~~ Civil No. 2010-2823 Now, within upon at by handing to a_ _. and made known to .copy of the original the contents thereof. So answers, Sworn and subscribed before me this day of ,20 Sheriff of COSTS SERVICE- MILEAGE AFFIDAVIT /~~~F i ~T Pleas of Cumberland County, Pennsylvania IFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of it, this deputation being made at the request and risk of the Plaintiff. .~ ^w /sheriff of Cumberland County, PA Esc; Affidavit of Service 20 , at o'clock M, served the County, PA E N'~~ ~ ~~J£ ~ ~ ~ ~sz XPERT TECHNOLOGIES, INC., Plaintiff, v. MICROBYTES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 10-2823 Civil CIVIL ACTION -EQUITY AND LAW JURY TRIAL DEMANDED c~ PRAECIPE TO REINSTATE COMPLAINT ?, ;=~- TO THE PROTHONOTARY: rrt - ~~' N a a ~_._ ;~ ~~ ~:~ =f; :.~ -;~ ~-= Please reinstate the Complaint filed in the above-captioned matter. --_ ./ SHUMAKER WILLIAMS, P.C. Dated: July 23, 2010 :233013 C~ ~ l o ~ oc7 Pp N'nY ~t 5~~ ~~`ay~7ry y By Ry P. Siney, I.D. #20 0 Ev n C. Pappas, I.D. #200103 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Plaintiff SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ' A" l Jody S Smith ~4~„ta of ~~~,~~p~,~~~~ ~ . Chief Deputy '~ ,~ ~ , . , ~ _ . ..;, , ,~~ aa~o~ ~vG- 9 p~nz 9 :~5~~ Richard W Stewart ~~ Solicitor cFF~cE ::-„~>~ER~FF ~. ~ I ;, a Xpert Technologies, Inc. Case Number vs. Microbytes, Inc. 2010-2823 SHERIFF'S RETURN OF SERVICE 07/26/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Jawad Mahmood, President, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Allegheny County, PA to serve the within Complaint and Notice according to law. 07/29/2010 10:15 AM -Allegheny County Return: And now July 29, 2010 at 1015 hours I, William Mullen, Sheriff of Allegheny County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Microbytes, Inc. c/o Jawad Mahmood by making known unto himself personally, President of Microbytes, Inc. at 186 Birch Court, Pittsburgh, PA 15237 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $37.44 August 06, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF !c CountySuite Sheriff. Teleo=oft, Inc. CA Ix PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (Last the within matter for the next Argument Court.) Preliminary Objections CAPTION OF CASE In The Court of Common Pleas of Cumberland County, Pennsylvania (entire caption must be stated in full) o XPERT TECHNOLOGIES, INC. a 205 House Avenue, Suite 103, Camp Hill, PA 17011 vs. - O MICROBYTES, INC. 9401 McKnight Road, Suite 301-B, Pittsburgh, PA 15237 No. 2823 2010 Term o 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Ryan P. Siney, Esq. and Evan C. Pappas, Esq. of Shumaker Williams, P.C. (Name and Address) P.O. Box 88, Harrisburg, PA 17108 (b) for defendants: Allan J. Opsitnick, Esquire (Name and Address) 564 Forbes Avenue, Suite 1301, Pittsburgh, PA 15219 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: JA Sig u lan J. sitnick r rint you name Defendant Date: August 18, 2010 Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. T ORIGINAL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA XPERT TECHNOLOGIES, INC. 205 House Avenue, Suite 103 Camp Hill, PA 17011 Plaintiff v MICROBYTES, INC. 9401 McKnight Road, Suite 301-B Pittsburgh, PA 15237 Defendant .'z 3_ , No. 2010-02823 Civil CIVIL ACTION - EQUITY IN LAW PRELIMINARY OBJECTIONS Filed on Behalf of Defendant: Microbytes, Inc. Counsel of Record for this Party: Allan J. Opsitnick, Esq. PA I.D. #28126 Suite 1301, Manor Building 564 Forbes Avenue Pittsburgh, PA 15219 412.391.3299 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA XPERT TECHNOLOGIES, INC. 205 House Avenue, Suite 103 Camp Hill, PA 17011 Plaintiff v MICROBYTES, INC. 9401 McKnight Road, Suite 301-B Pittsburgh, PA 15237 No. 2010-02823 Civil CIVIL ACTION - EQUITY IN LAW Defendant PRELIMINARY OBJECTIONS AND NOW comes Defendant, Microbytes Inc., by its Attorney, Allan J. Opsitnick, and brings the within Preliminary Objections: 1. FACTUAL BACKGROUND 1. This is a lawsuit to recover an alleged amount due Plaintiff by Defendant in the amount of $14,770.00. The basis for the amount claimed due is the alleged failure of Defendant business to pay Plaintiff business for services performed, pursuant to Contract. 2. Plaintiff is a business located in Cumberland County, Pennsylvania. 3. Defendant is a business located Allegheny County, Pennsylvania. 4. The Contract between the parties, entitled "Supplier Agreement" is attached to the Complaint. I II. IMPROPER VENUE 5. Plaintiff s Complaint references that the parties, in the Supplier Agreement, have agreed that actions related to the Contract should be brought in Massachusetts. Plaintiff then declares that the reference to Massachusetts is a mutual mistake. 6. In any event, Cumberland County has no venue, in that no transaction or occurrence took place in Cumberland County. 7. As apparent from the Supplier Agreement, Plaintiff signed the Agreement on December 8, 2008, presumably in Cumberland County. Defendant signed the Agreement subsequent to Plaintiffs signature. Defendant signed the Agreement on January 2, 2009 in its office in Allegheny County. 8. Therefore, the Contract was formed in Allegheny County and, as no portion of the controversy arose in Cumberland County, venue is improper. WHEREFORE, Defendant Microbytes Inc., respectfully requests this Honorable Court to grant its Preliminary Objections and to enter an Order finding Venue Proper in Allegheny County, Pennsylvania and Ordering transfer of this case/re-filing of this case to/in Allegheny County. submitted, Allan J. itnick, Esquire Attorne f Defendant 564 For Avenue, Suite 1301 Pittsburgh, Pennsylvania 15219 (412) 391-3299 2 I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA XPERT TECHNOLOGIES, INC. 205 House Avenue, Suite 103 Camp Hill, PA 17011 Plaintiff v MICROBYTES, INC. 9401 McKnight Road, Suite 301-B Pittsburgh, PA 15237 Defendant No. 2010-02823 Civil CIVIL ACTION - EQUITY IN LAW CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Preliminary Objections has been served on this 18 1h day of August, 2010, in the method specified, to the following party(s) listed below: By Ordinary Mail and E-mail: Ryan Siney, Esquire 3425 Simpson Ferry Rd Camp Hill, PA 17011 E-mail: siney(c'sllumakerwilliams.com Respectfully submitted, L 70rbes J. Opsitnick, Esquire PA I.D. #51633 Avenue, Suite 1301 Pittsburgh, Pennsylvania 15219 Phone: 412.391.3299 3 y XPERT TECHNOLOGIES, INC., IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff ~2 ~ ~., ~ .,, ~ v• No. 2010-2823 Civil ~ ~ ~ MICROBYTES, INC., :CIVIL ACTION -EQUITY AND ~ ~ ~,,, ~ 'n ~ o ~~ Defendant :JURY TRIAL DEMANDED RESPONSE TO PRELIMINARY OBJECTIONS AND NOW COMES Plaintiff, Xpert Technologies, Inc., by and through its attorneys, Shumaker Williams, P.C., to respectfully state and aver the following Response to Preliminary Objections: 1. Denied. Paragraph 1 is an attempt to characterize Plaintiff's Complaint, a written document which speaks for itself. Any characterization of Plaintiff's Complaint is denied. 2. Admitted in part and denied in part. It is admitted that Plaintiff's primary business location is in Cumberland County, Pennsylvania. Any implication that Plaintiff's business operations are conducted solely within Cumberland County, Pennsylvania is denied. 3. Plaintiff is without information sufficient to admit or deny the averments of paragraph 3, and therefore the averments of paragraph 3 are denied and strict proof is demanded. By way of further answer, it is believed that Defendant's primary business location is in Allegheny County, Pennsylvania but that Defendant conducts business throughout the Commonwealth of Pennsylvania. 4. Admitted. 5. Denied. Paragraph 5 is an attempt to characterize Plaintiff's Complaint, a written 7 document which speaks for itself. Any characterization of Plaintiff's Complaint is denied. 6. Denied. The averments of paragraph 6 are conclusions of law to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 6 are denied and strict proof is demanded. 7. Denied. Paragraph 7 is an attempt to characterize a written document which speaks for itself. Any characterization of such document is denied. 8. Denied. The averments of paragraph 8 are conclusions of law to which no response is required. To the extent a response is deemed to be required, the averments of paragraph 8 are denied and strict proof is demanded. WHEREFORE, Plaintiff, Xpert Technologies, Inc., respectfully requests this Honorable Court to overrule the Preliminary Objections of Defendant, MicroBytes, Inc. Respectfully Submitted, SHUMAKER WILLIAMS, P.C. ,-~--~ Dated: September 7, 2010 By Ry . Siney, I.D. #2 90 E C. Pappas, I.D. #200103 P.O. Box 88 Harrisburg, PA 17108 (717} 763-1121 Attorneys for Plaintiff :234113 2 1 CERTIFICATE OF SERVICE I, Ryan P. Siney, hereby certify that I served a true and correct copy of the foregoing Response to Preliminary Objections on this date by electronic mail and by depositing a copy of the same in the possession of the United States mail, first-class, postage prepaid, addressed as follows: Allan J. Opsitnick, Esquire 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 opsitnickslaw@comcast.net Attorney for Defendant SHUMAKER WILLIAMS, P.C. Dated: September 7, 2010 B ~/~ Y ya .Siney SHUMAKER WILLIAMS, P.C. P.O. BOX 88 Harrisburg, PA 17108 (717)763-1121 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA XPERT TECHNOLOGIES, INC. ) 205 House Avenue, Suite 103 ) Camp Hill, PA 17011 ) Plaintiff ) v ) MICROBYTES, INC. ) 9401 McKnight Road, Suite 301-B ) Pittsburgh, PA 15237 ) Defendant ) No. 2010-02823 Civil CIVIL ACTION -EQUITY IN LAW PRAECIPE TO REMOVE Filed on Behalf of Defendant: Microbytes, Inc. Counsel of Record for this Party: Allan J. Opsitnick, Esq. PA I.D. #28126 Suite 1301, Manor Building 564 Forbes Avenue Pittsburgh, PA 15219 412.391.3299 Lr L; c'' r~*t~ c~ ~'~'' ` `° rr ~~ ~~ r- ~ --~ ~ r ~ r- ~ r~ -~~ ~ ter; ~ ~-'~ ~: ~ ., .. `,~~ ,.,.,j r~ .,., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA XPERT TECHNOLOGIES, INC. 205 House Avenue, Suite 103 Camp Hill, PA 17011 Plaintiff v MICROBYTES, INC. 9401 McKnight Road, Suite 301-B Pittsburgh, PA 15237 Defendant No. 2010-02823 Civil CIVIL ACTION -EQUITY IN LAW PRAECIPE TO REMOVE To the Prothonotary: Please remove the above captioned action from the October 6, 2010 Argument list. The matter has been settled. Respectfully submitted, J. Ops~tnick, Esquire PA ID N6-X28126 564 Forties Avenue, Suite 1301 Pittsburgh, Pennsylvania 15219 (412) 391-3299 Dated: October 4, 2010 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA XPERT TECHNOLOGIES, INC. 205 House Avenue, Suite 103 Camp Hill, PA 17011 Plaintiff v MICROBYTES, INC. 9401 McKnight Road, Suite 301-B Pittsburgh, PA 15237 No. 2010-02823 Civil CIVIL ACTION -EQUITY IN LAW Defendant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Praecipe to Remove has been served on this 4~' day of October, 2010, in the method specified, to the following party(s) listed below: By E-mail: Ryan Siney, Esquire 3425 Simpson Ferry Rd Camp Hill, PA 17011 E-mail: siney(~shumakerwilliams.com Respectfully submitted, A~1 J. Opsitnick, Esquire PA I.D. #28126 564 orbes Avenue, Suite 1301 Pittsburgh, Pennsylvania 15219 Phone: 412.391.3299 2 ?,A PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter forte a6xt Argument Court.) ?f ------------------------------------------------------------------------------------------------------------ ---- ; .. rte. CAPTION OF CASE (entire caption must be stated in full) XPERT TECHNOLOGIES, INC., Plaintiff r )? vs. •• s"., MICROBYTES, INC., Defendant No. 2010-2823 Civil Term 1. State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Obiections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Ryan P. Siney, Esquire, Shumaker Williams, P.C., P.O. Box 88, Harrisburg, PA 17108 (Name and Address) (b) for defendants: Allan J. Opsitnick, Esquire 564 Forbes Avenue, Suite 1301, Pittsburgh, PA 15219 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 15, 2010 Print your name Plaintiff Date: November 10, 2010 Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Ryan P. Siney, I.D. #209190 XPERT TECHNOLOGIES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. MICROBYTES, INC., Defendant CIVIL ACTION - LAW NO. 10-2823 CIVIL IN RE: ARGUMENT COURT ORDER AND NOW, this 9 h day of December, 2010, the case listed above has been stricken from the 12/15/2010 Argument Court List due to the listing party's failure to file a brief in accordance with Cumberland County local Rule 1028(c)(5). BY THE COURT, -7 C CD _0 - rI CO p r-1 f' © n t .d =C C:) ?}C d C C-) )m XPERT TECHNOLOGIES, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2010-2823 Civil MICROBYTES, INC., CIVIL ACTION - EQUITY AND LAW Defendant JURY TRIAL DEMANDED PRAECIPE TO REMOVE FROM ARGUM ENT LIST PLEASE remove the above-captioned action from the December 15, 2010 argument list. Dated: December 9, 2010 ?.36039 SHUMAKER WILLIAMS, P.C. By 94V4 ?,-,e Ry P. Siney, I.D. #209190 Evan C. Pappas, I.D. #200103 P.O. Box 88 r) Harrisburg, PA 17108 c ° (717) 763-1121 mw C2 F-4 _ -M M Attorneys for Plaintiff M c-) -r1 r-- ?> c? 6 Co r-.= --4O < y x o Tom, ry N Cf CERTIFICATE OF SERVICE I, Ryan P. Siney, hereby certify that I served a true and correct copy of the foregoing Praecipe to Remove from Argument List on this date by depositing a copy of the same in the possession of the United States mail, first-class, postage prepaid, addressed as follows: Allan J. Opsitnick, Esquire 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 opsitnickslaw@comcast.net Attorney for Defendant SHUMAKER WILLIAMS, P.C. Dated: December 9, 2010 By R P. Siney S MAKER WILLIA , P.C. P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 XPERT TECHNOLOGIES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. No. 2010-2823 Civil c = ' z rn_ MICROBYTES, INC., CIVIL ACTION - EQUITY ANDA& w . ," :r-n Defendant JURY TRIAL DEMANDED o z >c:: q PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINS AND NOW COMES Plaintiff, Xpert Technologies, Inc., by and through its counsel, Shumaker Williams, P.C., to file this Motion for Leave to Amend Complaint, and avers as follows: 1. This action was instituted by the filing of a Complaint on or about April 28, 2010 by Plaintiff, Xpert Technologies, Inc. ("Xpert"). 2. Defendant, MicroBytes, Inc. ("MicroBytes"), filed Preliminary Objections to Xpert's Complaint on or about August 18, 2010, and which were listed for argument by MicroBytes. 3. MicroBytes' Preliminary Objections were removed from the argument list because the parties had reached a settlement. 4. A Settlement Agreement and Mutual Release ("Settlement Agreement") was entered into and executed by MicroBytes on or about November 15, 2010. A copy of the Settlement Agreement is attached hereto as Exhibit "A." 5. Pursuant to the terms of the Settlement Agreement, MicroBytes was to remit monthly payments in the amount of $500.00 and execute an Installment Promissory Note. The Installment Promissory Note is attached hereto as Exhibit "B." 6. MicroBytes executed the Settlement Agreement, but failed to execute the Installment Promissory Note (the terms of which were nevertheless incorporated into the Settlement Agreement). 7. MicroBytes remitted one $500.00 payment to Xpert on or about November 15, 2010, but has failed to remit any further payments. 8. MicroBytes has breached the terms of the Settlement Agreement by failing to remit its monthly installment payments and by failing to execute the Installment Promissory Note. 9. The Settlement Agreement resolves MicroBytes' Preliminary Objection asserting that venue in Cumberland County is improper because the Settlement Agreement, executed by MicroBytes, explicitly states that "[a]ny action brought to enforce this Agreement or any continuation of the Action shall be brought and maintained in the Court of Common Pleas of Cumberland County, Pennsylvania." See Settlement Agreement:, attached hereto as Exhibit "A" at Section 10(f). 10. The Installment Promissory Note, incorporated by reference into the Settlement Agreement, permits Xpert to recover its attorneys' fees in this action. See Installment Promissory Note, attached hereto as Exhibit "B," at Section 7. 11. Xpert wishes to amend its Complaint to (a) add a count for breach of contract for MicroBytes' breach of the Settlement Agreement and to seek enforcement of the Settlement Agreement; (b) include a claim for attorneys' fees; and (c) make clear that venue is proper in Cumberland County pursuant to the terms of the Settlement Agreement. 12. The statute of limitations has not expired for this cause of action. 13. No surprise or prejudice will result from Xpert's amendment of its Complaint as MicroBytes and its counsel are aware of the terms of the Settlement Agreement and of MicroBytes' breach thereof. 14. Xpert's proposed Amended Complaint is attached hereto as Exhibit "C." 15. No prior issues relating to this matter or any related matter have been previously ruled on by a Judge in the Court of Common Pleas of Cumberland County. WHEREFORE, Plaintiff, Xpert Technologies, Inc., respectfully requests this Honorable Court to grant its Motion for Leave to Amend Complaint. SHUMAKER WILLIAMS, P.C. Dated: January 31, 2011 By ?e ff"' , Rya VP. Siney, I.D. #209190 Evan C. Pappas, I.D. #200103 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Plaintiff :236862 SETTLEMENT AGREEMENT ANO MUTUAL RELEASE This Settlement Agreement and Mutual Release (hereinafter "Agreement") is made and entered into as of this tw day of N0Vtw%6" , 2010 by and between Xpert Technologies, Inc. ("Xpert") and MicroBytes, Inc. ("MicroBytes"). WHEREAS, Xpert initiated a legal action against MicroBytes on or about April 28, 2010 by filing a Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, No. 2010-2823 Civil (the "Action"); and WHEREAS, the parties hereto have reached an agreement on the settlement of all claims which Xpert has heretofore asserted, may have asserted, or hereafter could have asserted which are related to the Action, as well as all claims encompassed or which could have been encompassed within the Action, and have mutually agreed to release one another, all as more particularly set forth herein. NOW, TfIEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, and intended to be legally bound hereby, the parties agree as follows: 1. Recitals. The recitals set forth above are and shall form a part of this Agreement as if fully set forth hereunder. 2. Payment by MicroBAes to Xpert. As evidenced by the Installment Promissory Note ("Note") executed concurrent herewith and fully incorporated herein, MicroBytes shall pay to Xpert the sum of twelve thousand dollars and no cents ($12,000.00) in good funds not subject to recoupment as a preferential payment, payable in twenty four (24) monthly installments of five hundred dollars ($500.00) each. Payments shall be made payable to the order of "Xpert Technologies, Inc. and Shumaker Williams, P.C." and sent to counsel for Xpert at the address specified in paragraph 7 below. 3. Dismissal of Action. Xpert shall mark the Action as dismissed with prejudice no later than ten (10) days after full and final satisfaction of MicroBytes' payment obligations as set forth in paragraph 2 and the Note. 4. Default. In the event of a breach of this Agreement or defauh upon the Note, Xpert may take action to enforce MicroBytes' payment obligations as set forth in paragraph 2 and the Note, continue the Action against MicroBytes, file an adversary action in any bankruptcy proceeding or seek any other relief to which it may be entitled. 5. Mutual Releases. As part of the consideration herein, effective only upon full and final satisfaction of all terms and conditions herein, including but not limited to payment by MicroBytes as set forth in paragraph 2 and the Note, Xpert and its officers, employees, subsidiaries, agents, successors and assigns hereby irrevocably release and forever discharge MicroBytes from all actions, known and unknown claims and demands that Xpert now has or hereafter may have by reason of any matter whatsoever arising directly or indirectly out of the basis for any claim or defense which was raised or which could have been raised in the Action. Exhibit "A" As part of the consideration herein, effective only upon full and final satisfaction of all terms and conditions herein, including but not limited to payment by MicroBytes as set forth in paragraph 2 and the Note, MicroBytes and its officers, employees, subsidiaries, agents, successors and assigns irrevocably release and forever discharge Xpert from all actions, known and unknown claims and demands that MicroBytes now has or hereafter may have by reason of any mattes whatsoever arising directly or indirectly out of the basis for any claim or defense which was raised or could have been raised in the Action. No part of this paragraph shall be effective unless and until all of MicroBytes' payment obligations pursuant to paragraph 2 above and the Note are fully and timely satisfied, and no part of this paragraph shall be effective in the event of default upon the Note. 6. Agreement Maybe Executed and Exchanged in Counterpart. This Agreement may be executed in two counterparts and each such counterpart shall be deemed to be an original instrument, but both counterparts together shall constitute only one Agreement. 7. Notices. Any notice or other communication in connection with this Agreement shall be given in writing, by correspondence, addressed as follows or at such other address as may be designated in writing by the parties to one another: If to Xpert: Ryan P. Siney, Esquire Shumaker Williams, P.C. P.O. Box 88 Harrisburg, PA 17108 If to MicroBytes: Allan J. Opsitnick, Esquire Suite 1301, Manor Building 564 Forbes Avenue Pittsburgh, PA 15219 8. Acknowledgments. Each of the parties signatory to this Agreement represent, warrant and acknowledge, and as to each such party affirms, that the following statements are all true and correct and factually accurate in all respects. a. Full Understanding Legal Advice and Voluntary Agreement. Prior to the execution of this Agreement, each party has carefully read and fully understands all of the provisions of this Agreement. Each party has consulted with, or alternatively, has had the opportunity to consult with, their respective attorney(s) concerning the terms and conditions of this Agreement, and each party has had a full and complete opportunity to participate in the drafting of this Agreement. Each party to this Agreement is voluntarily entering into this Agreement. b. No Defense Based on Drafting. Each party to this Agreement agrees that there shall be no interpretation or construction of this Agreement, or any defense asserted with respect thereto, which is based upon the fact that any of the parties hereto was responsible for drafting all or any portion of this Agreement. 2 of 4 0 C. No Other Promises. Each signatory to this Agreement aectares, warrants and represents that no promise, inducement or agreement not herein or therein expressed, has been made to such party, and that the terms of this Agreement, including all recitals, are contractual and not a mere recital. 10. Miscellaneous. a. Severability. In the event any part, term or provision of this Agreement is declared or determined to be illegal or invalid by any court of competent jurisdiction, the validity of the remaining parts, terms and provisions shall not be affected thereby, and the illegal or invalid part, term or provision shall be deemed not to be contained in this Agreement, as the case may be. b. Binding Effect. This Agreement constitutes the final and binding understanding between and among all parties signatory hereto and thereto, and this Agreement shall be binding upon and inure to the benefit of all parties signatory hereto and thereto, and their respective personal representatives, successors and assigns. C. Course of Dealing: Amendment. This Agreement may not be supplemented or modified without the written consent of all parties hereto. No terms or conditions not set forth herein shall be of any force or effect. No course of dealing, nor any conduct or custom, between any of the parties hereto or hereto shall be effective to amend, modify or change any of the provisions of.this Agreement or any other document or agreement. d. Headings. Section and subsection headings in this Agreement are included for convenience and reference only and shall not constitute a part of this Agreement for any other purpose and shall not be deemed to affect the meaning or construction of any of the provisions hereof. e. Language. The words "hereof," "whereof," "herein," "therein," "hereunder" and "thereunder" and words of similar import when used in this Agreement shall refer to this Agreement, as the case may be, as a whole and not to any particular provision of this Agreement. Terms in the singular shall include the plural and vice versa. All representations, warranties, agreements and covenants contained among the provisions of this Agreement shall survive the execution and delivery of this Agreement. f. Applicable Law and Forum. This Agreement shall be interpreted and construed under the laws of the Commonwealth of Pennsylvania, and shall be effective as provided herein. Any action brought to enforce this Agreement or any continuation of the Action shall be brought and maintained in the Court of Common Pleas of Cumberland County, Pennsylvania. 3 of 4 0/7 g. Time is of the Essence. Time is of the essence in connection with all obligations of all parties hereto. I HAVE READ THIS ENTIRE AGREEMENT. I FULLY UNDERSTAND ITS CONTENTS AND INTEND TO BE LEGALLY BOUND HEREBY. W CC fJ LsS, 60 XPERT TECHN IES, INC. By: Print Name ATTEST: :234793 MICROBYTES, INC. By: Print Name 4of4 g. Time is of the Essence. Time is of the essence in connection with all obligations of all parties hereto. I HAVE READ THIS ENTIRE AGREEMENT. I FULLY UNDERSTAND ITS CONTENTS AND INTEND TO BE LEGALLY BOUND HEREBY. ATTEST: ATTEST: :234793 XPERT TECHNOLOGIES, INC. By: Print Name MICROBYTES, INC. By: Print d of d INSTALLMENT PROMISSORY NOTE $12,000.00 October , 2010 Commonwealth of Pennsylvania FOR VALUE RECEIVED, MicroBytes, Inc. (hereinafter "Maker"), promises to pay to the order of Xpert Technologies, Inc., its successors or assigns (hereinafter "Payee"), the sum of twelve thousand dollars and no cents ($12,000.00), in accordance with the schedule noted within this Installment Promissory Note ("Note"), and hereby agrees as follows: Schedule. Payments pursuant to this Note shall be made as follows: a. Five hundred dollars and no cents ($500.00) no later than 5:00 P.M. Eastern time on November 1, 2010 and on the first day of each and every subsequent month through and including October 1, 2012. b. Payments shall be made in lawful money of the United States of America in immediately available funds not subject to recoupment as a preferential payment, payable to "Xpert Technologies, Inc. and Shumaker Williams, P.C." and shall be delivered by check or money order to Ryan P. Siney, Esquire, Shumaker Williams, P.C., P.O. Box 88, Harrisburg, Pennsylvania 17108, or to such other place as the holder of this Note may from time to time direct in writing. Time is of the essence with respect to each payment due hereunder. 2. Prepayment. Maker may prepay the entire principal balance due hereunder, at any time, without penalty. 3. Default. Except as provided in paragraph 4, the occurrence of any one or more of the following events shall constitute a Default under this Note and shall render this Note immediately due and payable: a. The failure of Maker to pay any amount due hereunder on the date due; or b. The failure of Maker to comply with any other provision contained in this Note. 4. Ri t to Cure. The first time that Maker fails to deliver any payment by the date due, Maker shall be entitled to cure the Default by making payment within five (5) business days of the date that payment was due. If, however, Maker fails a second time to deliver any payment by the due date, then Maker shall not be entitled to cure the Default, and Payee may enforce its right to recover the remaining balance due pursuant to this Note, less payments made, without any additional notice or demand. 5. Acceleration. The balance shall be due and immediately payable upon a Default of this Note which is not cured pursuant to paragraph 4 hereof. Exhibit "B" 6. Waiver. Maker hereby waives demand, presentiment for payment, protest, notice of demand, of nonpayment, and of protest. The failure of Payee to exercise any of its rights hereunder in any instance shall not constitute a waiver thereof in that or any other instance. 7. Attorneys' Fees, Costs and Expenses. Maker will reimburse Payee for actual costs and expenses incurred by Payee in enforcing and collecting this Note, plus reasonable attorneys' fees. 8. Release and Modification. Payee may renew or extend this Note, release any party hereto, or waive or modify any provision hereof, without affecting Maker's obligation. 9. Modification and Survival. This Note may not be modified or discharged, in whole or in part, and no right or remedy of Payee or under any other agreement may be waived, except by a written agreement signed by Payee. The provisions of this Note shall survive the cancellation or surrender of this Note. 10. Severability. In the event any part, term or provision of this Note is declared or determined to be illegal or invalid by any court of competent jurisdiction, the validity of the remaining parts, terms and provisions shall not be affected thereby, and the illegal or invalid part, term or provision shall be deemed not to be contained in this Agreement, as the case may be. 11. Governing Law, Jurisdiction and Venue. This Note shall be construed according to the laws of the Commonwealth of Pennsylvania. Maker irrevocably submits to the jurisdiction of Pennsylvania courts and waives any objection to either the jurisdiction or venue of Pennsylvania courts and of the Court of Common Pleas of Cumberland County, Pennsylvania. 12. Authority to Execute. Maker warrants and represents to Payee that the individual executing this Note on behalf of Maker is properly authorized by Maker to execute this Note on Maker's behalf and to duly bind and obligate Maker to all terms and conditions of this Note. I HAVE READ THIS ENTIRE NOTE. I FULLY UNDERSTAND ITS CONTENTS AND INTEND TO BE LEGALLY BOUND HEREBY. ATTEST: MICROBYTES, INC. :234866 By: Print Name Page 2 of 2 XPERT TECHNOLOGIES, INC., 205 House Avenue, Suite 103, Camp Hill, PA 17011, Plaintiff V. MICROBYTES, INC., 186 Birch Court, Pittsburgh, PA 15237, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : No. CIVIL ACTION - EQUITY AND LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 Exhibit "C" AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dfas despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aquf en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 SHUMAKF,R WILLIAMS, P.C. Dated: By Ryan P. Siney, I.D. #209190 Evan C. Pappas, I.D. #200103 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Plaintiff XPERT TECHNOLOGIES, INC., 205 House Avenue, Suite 103, Camp Hill, PA 17011, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2010-2823 Civil MICROBYTES, INC., CIVIL ACTION - EQUITY AND LAW 186 Birch Court, Pittsburgh, PA 15237, Defendant JURY TRIAL DEMANDED FIRST AMENDED COMPLAINT AND NOW COMES Plaintiff, Xpert Technologies, Inc., by and through its attorneys, Shumaker Williams, P.C., to respectfully state and aver the following First Amended Complaint against MicroBytes, Inc.: PARTIES 1. Plaintiff, Xpert Technologies, Inc. ("Xpert"), is a Pennsylvania corporation with a registered business address of 205 House Avenue, Suite 103, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Xpert is a provider of computer programming and consulting services. 3. Defendant, MicroBytes, Inc. ("MicroBytes"), is a Pennsylvania corporation with a last known address of 186 Birch Court, Pittsburgh, Pennsylvania 15237. 4. MicroBytes is a software consulting and development company which provides software consulting services and training to its customers. FACTS 5. A Supplier Agreement was entered into and executed by Xpert on December 8, 2008 and by MicroBytes on January 2, 2009, whereby Xpert would introduce technical services personnel candidates to MicroBytes and MicroBytes would submit technical services personnel to provide to clients of MicroBytes. A copy of the Supplier Agreement is attached hereto as Exhibit "A." 6. MicroBytes employed Xpert in the capacity of a "tester" in order to provide necessary expertise in software design and development projects as assigned by MicroBytes. 7. For the project at issue in this action (the "Project"), the ultimate client was U.S. Steel, which engaged the services of Logix Guru; Logix Guru, in turn, engaged the services of MicroBytes. 8. As a practical matter, the relationship between Xpert and MicroBytes was similar to that of a subcontractor (MicroBytes) and sub-subcontractor (Xpert). 9. MicroBytes then submitted a Purchase Order, dated October 28, 2008, to Xpert for services to be rendered by the Xpert's employee, Badari Mallireddy (the "Consultant"), to MicroBytes' client (and ultimately to U.S. Steel). A copy of the October 28, 2008 Purchase Order is attached hereto as Exhibit "B." 10. Pursuant to the Supplier Agreement, Xpert, through the Consultant, provided hourly consulting services for the Project to U.S. Steel, by way of the contract between Xpert and MicroBytes. 11. Xpert, through the Consultant, provided MicroBytes with all consulting services required by the Supplier Agreement and dutifully completed the performance required by such contract. 2 12. The Consultant's salary, wages, fees, and expenses were paid directly by Xpert, and Xpert expected to be reimbursed for these costs by way of the Supplier Agreement with MicroBytes. 13. Pursuant to the Supplier Agreement, the Consultant provided his services on an hourly basis and submitted the required time records for hours worked on the Project. Copies of the time records are attached hereto collectively as Exhibit "C." 14. Xpert submitted Invoices for these consulting services to MicroBytes by Invoices dated February 3, 2009, March 3, 2009, May 18 2009, April 8, 2009, and April 15, 2009. Copies of the invoices are attached hereto collectively as Exhibit "D." 15. Pursuant to the terms of the Supplier Agreement and Purchase Order, all Invoices were to be paid within thirty (30) days. 16. The invoices attached hereto as Exhibit "D" remain unpaid, despite Xpert's best efforts to collect such sums due and owing. 17. The amount due and owing from MicroBytes to Xpert pursuant to the Invoices attached hereto as Exhibit "D" is $14,770.00. 18. Upon information and belief, MicroBytes was fully compensated for the services rendered by Xpert's employee by Logix Guru and/or U.S. Steel. 19. MicroBytes, despite being fully paid for services rendered by the Consultant provided by Xpert, has failed or refused to pay Xpert for the Invoices attached hereto as Exhibit «D 20. Xpert initiated this action against MicroBytes by the filing of a Complaint on or about April 28, 2010. 3 21. Following the institution of this action, a settlement was reached between the parties and a Settlement Agreement and Mutual Release ("Settlement Agreement") was entered into between the parties. See Settlement Agreement and Mutual Release attached hereto as Exhibit "E." 22. Pursuant to the Settlement Agreement, MicroByt:es was to execute an Installment Promissory Note in conjunction with the Settlement Agreement whereby MicroBytes would pay Xpert the settlement amount of $12,000.00 ("Settlement Amount"). See Installment Promissory Note attached hereto as Exhibit "F." 23. Such Settlement Amount was to be paid in twenty-four monthly installments. 24. MicroBytes has failed to execute the Installment Promissory Note as required under the Settlement Agreement and has, to date, only made one $500.00 monthly installment payment to Xpert. 25. Notwithstanding MicroBytes' failure to execute the Installment Promissory Note, the terms of the Installment Promissory Note were incorprated by reference into the Settlement Agreement (which was executed by MicroBytes), and MicroBytes evidenced an intent to be bound by the Installment Promissory Note when it made an initial payment of $500.00 as required by the Installment Promissory Note. 26. As further evidence of MicroBytes' intent to be bound by the Installment Promissory Note, counsel for MicroBytes sent counsel for Xpert an e-mail indicating that MicroBytes would execute the Installment Promissory Note. See December 6, 2010 e-mail attached hereto as Exhibit "G." 4 27. The terms of the Settlement Agreement indicate that the applicable forum for any action brought to enforce the Settlement Agreement or a continuation of this action shall be the Court of Common Pleas of Cumberland County, Pennsylvania. 28. Further, Cumberland County is an appropriate venue for this action because Xpert is located in Cumberland County, MicroBytes conducted business in Cumberland County by negotiating and entering into the Supplier Agreement with Xpert technologies in Cumberland County and MicroBytes' breach of the Settlement Agreement is to be brought and enforced in Cumberland County, Pennsylvania. COUNTI BREACH OF CONTRACT 29. The averments of paragraphs 1 through 28 above are incorporated herein by reference as if set forth in their entirety. 30. Xpert and MicroBytes entered into a written contract whereby Xpert would provide consulting services to MicroBytes' client. See Exhibit "A." 31. Xpert fully performed all acts required of it by the Supplier Agreement. 32. The Supplier Agreement executed by MicroBytes and the Purchase Order for the Consultant require that MicroBytes pay Xpert's Invoices within thirty (30) days. 33. Pursuant to the Supplier Agreement, the Consultant submitted complete and accurate time records, which were then used to generate invoices submitted to MicroBytes. 34. The Invoices attached hereto as Exhibit "D" were not paid within thirty (30) days and remain unpaid as of the date of the filing of this Complaint. 5 35. MicroBytes' failure to pay Xpert the amount of each Invoice within thirty (30) days is a breach of the terms of the Supplier Agreement entered into between the parties. 36. As a result of this breach, Xpert has suffered damages in the amount $14,770.00. 37. The Supplier Agreement specifically permits the prevailing party in any action to recover the costs and fees association with such action. See Supplier Agreement, attached hereto as Exhibit "A," at paragraph 18. 38. Accordingly, Xpert requests that this Court award it attorneys' fees and the costs of this suit. WHEREFORE, Plaintiff, Xpert Technologies, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, MicroBytes, Inc., in the amount of $14,770.00 plus costs, attorneys' fees, interest, and any additional relief this Honorable Court deems appropriate. COUNT II UNJUST ENRICHMENT 39. The averments of paragraphs 1 through 38 above are incorporated herein by reference as if set forth in their entirety. 40. Xpert provided consulting services to MicroBytes with a value of $14,770.00 which has not been paid by MicroBytes. 41. MicroBytes accepted and retained the benefits of the services provided by Xpert. 42. It is believed and therefore averred that MicroBytes received payment from Logix Guru and/or U.S. Steel for the services provided by Xpert, and MicroBytes has retained the benefits of such payments. 6 43. Due to MicroBytes' failure to pay Invoices submitted by Xpert, MicroBytes has been unjustly enriched in the amount of $14,770.00. WHEREFORE, Plaintiff, Xpert Technologies, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, MicroBytes, Inc., in the amount of $14,770.00 plus costs, attorneys' fees, interest, and any additional relief this Honorable Court deems appropriate. COUNT III QUANTUM MERUIT 44. The averments of paragraphs 1 through 43 above are incorporated herein by reference as though set forth in their entirety. 45. Xpert provided a benefit to MicroBytes by rendering consulting services to MicroBytes' client. 46. MicroBytes has received the full benefit of Xpert's consulting services, but has failed or refused to fully compensate Xpert for such consulting services. 47. Xpert is entitled to be paid $14,770.00 from MicroBytes, representing the value of the unpaid consulting services provided by Xpert to MicroBytes. WHEREFORE, Plaintiff, Xpert Technologies, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, MicroBytes, Inc., in the amount of $14,770.00 plus costs, attorneys' fees, interest, and any additional relief this Honorable Court deems appropriate. 7 COUNT IV BREACH OF CONTRACT AND ENFORCEMENT OF SETTLEMENT AGREEMENT 48. The averments of paragraphs 1 through 47 above are incorporated herein by reference as if set forth in their entirety. 49. Xpert and MicroBytes entered into a Settlement Agreement in full resolution of the claims brought by Xpert in this action. See Exhibit "E." 50. The Settlement Agreement executed by MicroBytes required MicroBytes to remit monthly payments in the amount of $500.00 and to enter into an Installment Promissory Note concurrent with the execution of the Settlement Agreement. 51. MicroBytes remitted one $500.00 payment to Xpert on or about November 15, 2010, but has failed to remit any further payments. 52. In addition, MicroBytes has failed to execute the Installment Promissory Note. See Exhibit "F." 53. MicroBytes has breached the terms of the Settlement Agreement by failing to remit its monthly installment payments and by failing to execute the Installment Promissory Note. 54. MicroBytes, notwithstanding its failure to execute the Installment Promissory Note, is obligated to pay Xpert the sum of $12,000.00, as required by the Settlement Agreement and the Installment Promissory Note which is incorporated therein. 55. MicroBytes' failure to remit the monthly installment payments due under the Settlement Agreement and its failure to execute the Installment :Promissory Note are breaches of the terms of the Settlement Agreement. 8 56. The Installment Promissory Note, which was fully incorporated in the Settlement Agreement, specifically requires MicroBytes to reimburse Xpert for the actual costs and expenses, including attorneys' fees, which are incurred by Xpert in the enforcement of the Installment Promissory Note. 57. Accordingly, Xpert requests that this Court award it attorneys' fees and the costs of this suit. WHEREFORE, Plaintiff, Xpert Technologies, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, MicroBytes, Inc., in the amount of $11,500.00 plus costs, attorneys' fees, interest, and any additional relief this Honorable Court deems appropriate. Respectfully Submitted, SHUMAKER WILLIAMS, P.C. Dated: By Ryan P. Siney, I.D. #209190 Evan C. Pappas, I.D. #200103 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1:121 230419 Attorneys for Plaintiff 9 SUPPLIER AGREEMENT This AGREEMENT made effective as of the 1" day of November 2008 between MICROBYI'ES INC, with offices at 9401 McKnight Road, Suite 301 •B, Pittsburgh, PA 15237 (hereinafter "Vendor") and X-pert Technologies Inc, hereinafter (hereinafter "Supplier") with offices at 205 House Avenue, Suite 103, Camp Hill, PA 17011, whose Federal Tax ID No. is 20.2297565. Dec 05 08 04:44p robytes 4472559 \ ?- :4'IIC.RAY'rFs INC. WHEREAS Vendor's busines$ is locating technical services personnel for various clients, including the client (hereinafter "Client") listed in any Purchase Order (Exhibit A) executed by Vendor and Supplier and attached to this Agreement, to provide technical services to Client according to the Client's specifications; and WHEREAS Supplier agrees that Vendor will spend substantial resources and time evaluating, qualifying, proposing and/or providing Supplices technical services personnel to Client, and that Vendor was selected by Client to provide such personnel to Client at the Client locations listed in any attached Purchase Order; and WHEREAS Supplier is in a similar business and desires to join efforts with Vendor for the purpose of providing qualified candidates for the Client of Vendor; and W1WREAS Vendor and Supplier wish to enter into an Agreement pursuant to which Supplier will introduce technical services personnel candidates to Vendor and Vendor may submit said technical services personnel to provide their services to Client. NOW THEREFORE, in consideration of the mutual promises and covenants, the parties agree as follows: 1) DIRECT CONTACTS The Supplier agrees that it will not communicate in any fashion with the Client's technical or administrative (including contracting, procurement, human resources, etc.) personnel concerning any effort to provide technical services to Client by any of Supplier's technical services personnel except that Supplier's technical services personnel may communicate with the Client concerning those technical services already being performed by Supplier through Vendor under this Agreement. Supplier will communicate directly and exclusively through Vendor in regard to any additional services not already being performed by Supplier under this Agreement. 2) BAILING AND PAYMENT If Supplier's candidates are selected by Client to provide services, Supplier will be compensated by Vendor in accordance with a Purchase Order (Exhibit A) to be attached hereto for each individual who provides such services through Vendor. Billing cycle for all said invoices is Net 30. (No exceptions). A billable hour shall be defined as any hour the Supplier's technical services personnel has worked at the Client site that is recorded on Vendor's timesheet and has been approved by an authorized representative of the Client countersigning the timesheet. The periods for reporting hours are on a weekly basis, the candidate trust fax the timesheet to the Vendor no later than 10:00 am on the first business day following the end of each period indicated above. Should Supplier be required to complete a Client timesheet along with Vendor's timesheet, the Supplier must ensure that the same information is on both documents. This is critical information for Client billing and Vendor's payment to Supplier. Invoices are accepted for every two weeks of work performed and needs to be sent to Micrubytes Inc , Accounts Payable Department, Po. Box 2019, Pittsburgh, PA 15230 Payments are approved as per the Net 30 terms dfter the invoice is received. 3) WARRANTY OF SERVICE Vendor shall submit Supplier's technical services personnel to Client according to the qualifications, experiences, and project re uirements of the Client. It is within the Vendor's discretion 1 Exhibit "A" , p•2 Dec 05 08 04:45p t .Aft robytes 41 72559 p,3 whether to propose such personnel to Client. The work to be performed by the technical services personnel providing services under this Agreement shall be set forth by Client and stated in a Purchase Order (or similar form). If Client chooses to terminate the services of Supplier's personnel for any reason, including but not limited to unsatisfactory performance, Supplier will be compensated only for services approved and paid for by Client. 4) CONFIDENTIAI.LTY Supplier and its technical services personnel agree not to disclose to any third party information relating to Vendor, its agents, or its clients, if such information could reasonably be construed as confidential. For the purpose of this paragraph, Confidential information includes, but is not limited to, the identity, prior requirements, and present or future particular needs, of Vendor or Vendor's Clients, the identity of and background information about management personnel of Vendor's Clients; information regarding the existence of and details about any openings for which a candidate may be proposed or interviewed or has learned about through such interviews, the identification of Vendor's Clients in regard to openings; profit margins, pricing policies and practices, in general and as to particular Clients; sales and marketing techniques, history, data forecasts and material, in general and as to particular Clients; development plans, personnel training techniques and materials; information which relates to Vendor's or Vendor's Clients' actual or anticipated products, software, research inventions, processes, techniques, designs or other technical data; and any other proprietary information belonging to Vendor or Vendor's Clients. The Supplier and Supplier's technical services personnel must not disclose his/her rate of compensation to any other Vendor employee or consultant or any Client employee or other consultant on the same client site or any other Vendor Client site. S) NO N.SOLICITATION OF PERSONNEL OR CLIENTS (A) During the term of this Agreement and for a period of two years after its termination: (i) Vendor agrees that it will not hire or solicit for him: any of Supplier's technical services personnel who was performing services through Vendor for Client pursuant to this Agreement or any other Supplier personnel about whom Vendor received information or to whom it was introduced as the direct result of any services performed pursuant to this Agreement. (ii) Supplier agrees that it will not hire or solicit for hire any of Vendor's personnel, consultants, or any Client personnel about whom it has received information or to whom it was introduced as the direct result of any services performed pursuant to this Agreement. (B) During the term of Supplier's performance of services for a Client on behalf of Vendor and for one year after the termination of the performance of such services, Supplier agrees that it will not, at a restricted location as set forth in paragraph (E) below, provide or attempt to provide (or advise others of the opportunity to provide) other than through Vendor, directly or indirectly, any services to any Client to which Supplier is providing or has provided services through Vendor. The patties recognize that there may be occasions after the termination of this Agreement in which Supplier is contacted to supply technical services personnel directly or indirectly to Client. These occasions include, but are not limited to the following: (1) Client requests candidates directly from Supplier; (2) requests from other vendors to Client for candidates from Supplier to perform services for Client; or (3) addition of Supplier to the Client's "vendor list" (hereinafter "New Eligibility Occasions"). Supplier agrees that, even though a New Eligibility Occasion may arise, it will refuse any request to assign any of its technical services personnel to provide services for Client, directly or indirectly in a restricted location, during the restricted period; provided, however, that Supplier may comply with such a request by supplying its technical services personnel through Vendor. (C) For the purposes of this Paragraph S, the term "Client" includes any customers, contractors, subcontractors, or clients of the Client for whom Supplier's personnel performed services or for whom Vendor proposed that Supplier would perform services in a restricted location during the restricted time period under this Agreement. (D) The "restricted period" shall begin on the later of the date of the last performance of services or the date of the last proposal submitted by Vendor to Client. The Restricted period shall end on the latest of the following dates: (1) Two year from the date on which any technical services personnel last performed services for Client under this Agreement; (2) two year from the date on which Vendor last proposed a particular individual to Client; or (3) rwo year from the date on which an interview with Client arranged by Vendor took place. (E) The "restricted location" shall be any Client facility located within a 25-mile radius of the Client facility at ,y -1-- Dec 05 08 04:45p M obytes 41 72559 p. 4 which or for which Supplier's personnel last performed services, was assigned to perform services, or was introduced to or interviewed by the Client to perform services. 6) NOTICE O TEflMINATIQN This agreement may be terminated by either party upon thirty (30) days written nutice, provided, however that Vendor may terminate a purchase urder upon shorter notice, or no notice, at the Client's request. The provisions in paragraphs 4, 5, and 15 shall survive the termination of this Agreement. A purchase order may be terminated only upon (30) days written notice and no earlier than the agreed upon "end date" as stated in section one of the purchase order. Supplier may, however, terminate a purchase order by refusal of extension with (30) days prior written notice as stated in section two of the purchase order. 7) IN-alj ANCE Before providing services, Supplier will obtain for itself and its personnel at its own expense, comprehensive General Liability (GL) insurance coverage for projects covered by this Agreement, for limits of liability not less than $1,000,000.00 and, if available under state law, worker's compensation coverage with limits of not less than 51,000,000.00 and will name Vendor as Additional Insured and provide a copy of the binder, the policy or a cer0cate of insurance to Vendor upon request. 8) j,jAgILrry Because of the independent status of Supplier, it is solely and completely accountable for the services it provides to the Client. Neither Vendor nor the Client, nor any of Client's contractors, subcontractors, Customers or Clients, shall have any liability whatsoever to any party for such services provided by Supplier or its personnel. Vendor will not indemnify Supplier for any liability incurred by Supplier, or its technical service personnel. Although Vendor will act in good faith to describe the task requirements set forth by the Client, Vendor has no right to control any aspect of the project on which Supplier will be working. Moreover, Supplier and/or its technical services personnel will have the opportunity to discuss task requirements directly with the Client prior to acceptance of the project offered by the Client. Supplier, therefore, releases Vendor from any liability relating to representations about the task requirements or to the conditions under which Supplier will be working. Supplier shall indemnify Vendor if Supplier causes Vendor to breach its agreement with the Client. Supplier also agrees to release Vendor from any liability for statements made by Vendor, without malice, to third parties who may inquire about Supplier's performance. 9) EXPENSES No travel, living, and/or entertainment costs will be paid by Vendor. Whether the Client for whom Supplier is performing services will pay any such costs is a matter between Supplier and the Client. Supplier should include in its invoice any reimbursable expenses authorized by the Client in accordance with industry practice. Vendor will not pay for or provide training, tools, equipment or other materials to Supplier. Supplier's invoiced hours will include no time spent in formal training and Supplier represents that it is not being provided such formal training by Vendor, the Client or anyone acting on behalf of Vendor or Client. 10) FMZFLOwFF4 Supplier agrees that any technical services personnel provided by Supplier are employees of Supplier and are not employees of Vendor or Client; that Supplier at all times retains the primary control over its personnel, including the right to recruit, qualify, hire, terminate, set compensation and benefits, establish codes of conduct, monitor, discipline, establish minimum or maximum work hours and other conditions of work; that Supplier's personnel will not be entitled to any rights, benefits or privileges provided by Vendor or Client to its own employees; that neither Vendor nor Client will be liable fur payment of employment taxes, worker's compensation, previous sponsorship/visa fees, or other benefits provided to Supplier's personnel, and that Supplier is responsible for these matters and for paying/withholding FICA, FUTA, FIT and similar taxes with respect to its Employees; chat Supplier's personnel will abide by the confidentiality and restrictive covenant provisions of this Agreement; and that Supplier will advise its personnel and obtain their agreement to the foregoing in writing prior to the commencement of their services hereunder through execution of the Agreement for Supplier's Employee (attached as Exhibit B hereto). Supplier shall indemnify and hold harmless Vendor from all damages, costs and expenses resulting from any claims by Supplier's personnel that such personnel for benefits and/or are covered by the Client's or Vendor's employee benefit plans. 11) CO pt LANCE WITH LAWS ON USE OF ALIEN WORKERS If applicable, for each employee provided by Dec 05 08 04:46p Mt obytes 41 272559 p.5 the Supplier to Vendor, Supplier agrees and warrants that it will comply with all laws related to work being performed by alien workers in the United States including, but not limited to, the following: (A) Supplier is a United States of America ("USA") corporation. Supplier's technical services personnel will be employees of such corporation, and such corporation will be their employer. Accordingly, the personnel will be on the payroll of such corporation that maintains copies in the USA of all payroll, wage and hour, and similar records required by the United States Department of Labor. (B) Supplier's sponsored employee must have a valid H-lB visa based on a Labor Condition Application ("LCA") validly filed and maintained by Supplier. For all work performed in the USA, Supplier's sponsored technical services personnel will be paid the higher of the actual or prevailing wage in accordance with the LCA for such work in the locality where the work is being performed. Supplier represents that such walle will be properly stated on the LCA required to be filed with the Department of Labor for such employee, and such wage does not and will not include the value of any non-cash or in-kind benefits such as apartment or auto rentals, at any amounts reimbursed to the employee as per diem expenses, or the value of any other such fringe benefits. For each employee under this Agreement, Supplier will provide a copy of the LCA to Vendor. (C) Supplier represents that it is responsible for and in control of the payment of wages to its employee(s) under this Agreement, and that all requited federal, state and local taxes, whether income, employment, excise or of any other type, will be paid by Supplier as the employer of all personnel under this Agreement. In the event that Vendor is requested to make payments directly to any entity other than Supplier, which shall be in the sole discretion of Vendor, and if such entity is not a USA corporation, then Supplier shall ensure that such entity has filed with federal, state and local authorities all documentation and statements required for such entity to receive payments from Vendor without any back-up or other withholding by Vendor from such payments, and Supplier will provide Vendor with copies of such documentation and statements (L&, IRS Form 4224). (D) Supplier agrees that Vendor may require the technical services personnel provided pursuant to this Agreement to execute such forms as Vendor may request to confirm the representations in this Agreement, including INS Form 1-9. (E) Supplier agrees that any breach of the above provisions in paragraphs A through D shall constitute a material breach of this Agreement with Vendor. 12) ASSIGNMENT Neither party may assign or otherwise transfer this Agreement or any interest hereunder to any third party without the prior written consent of the other parry. This Agreement shall be binding upon and inure to the benefit of heirs, successors, assigns, and delegates of the parties hereto. 13) LyAny requirement to "notify" or for "notice" or "notification" in connection with the subject matter of this Agreement shall be in writing and shall be effective either when delivered personally to the party for whom intended, or five (S) days following the deposit of the same into the United States mail, certified mail, return receipt requested, addressed to such parry at the address set forth on page 1 of this Agreement. Either parry may designate a different address by notice to the other given in accordance herewith. 14) SEVERABILITY If any term or provision of thits Agreement shall be found by a court of competent jurisdiction to be illegal or otherwise unenforceable, the same shall not invalidate the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court's opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth. IS) RIGHTS T OWNERSHIP OF DOCUMENTATION Supplier and Vendor hereby agree that all material, documentation and other tangible expressions of information including but not limited to software programs and sotware documentation, technical data or marketing data as applicable, whether in final production or draft, Jan 06 09 03:46p M obytes 41T 72559 p.1 -- - ••r acroayta?s 4129 Sib p•6 which 04 from my work pcdb mW by Venda or Supplies Abe the Chart, thall be denwd to be wofb mate for httt sad dl nook We GM UmFm p sW bwLiog cxdwtvely to CUM unkm otbw arawments haw been ssmvd to by all ww in ord* bH ANDAMRMAM This AVsmoqt end say wrAw Purchase Orfty. AddwAvm a F.uh" c=art buewnder. coaaia eba amiss ePwaNa betwa,en the peones heseso wilt >melpf-P a ch Roarer cvwnd haters. U NOW aelmowkOp chat it is emaft an this Aveptmett solely Deer dtr belle of tht epNGCW MW trpnaentad= eontaiaod hates. This Alp im- w"not be modUM In any war exopr as s fftd cO 0 WfWW and S*wd by Oft PUM and started expntasty that u %;> utwta • atodaksctoe of dw Apvomm 17) L" TM Ittteeaat taws of the stttt d PENNSYLVANIA shW pvem chit Avvemerit, wkbout resod to is emflift afbw mh t mW say bwatis pe along so this Apumear a the rertriaes ptoeided hseueder shall be domes iaLho laid a skate eoa? its the lew of Mansehusm. Supplier herby avascas to the c:etwc of jwbdiwm owe u by stub torus. 11) MUM SM mON" ftngn are ddrm* to U MUM And ue lik* to be mdopm b oompenuoe Odkr pasty is the eau of ay bsradt of d* Aprreatatt by tbtc other party, dw pards yer due *Ww pasty tlt 4 be eattidad to bjt mdW fdW(bM WMWAry and patneaatr) IN eery beach a pmpttad baths of dtb Apreaeert. Idsddkiak d by the odt?er wbO b brad tt? bevel CM achic AMftmearskd be biabls !br day dApmW. coca, wW h= muo hotel ham ko dw Ober a9 Nam cm sad ocher W!aIldes mcwt L 4 d W a mimft-I and to any Wick of al ohll?adorr ea 60 baba. ?? own sae tba, id" Fee stad as btdWah NUCIOVYT83 C By: D inA Tide: Dave: ti Far mw an bdwmoo SuWices Neww X -Pen TeckooiotSW, bw alp: - / -2 ?? (Aaxttod-od (7ype err trsintaxn Title i Dace: 0 D t _ MNO. ?9N -?,. 2(?Ej( (rederN cD Numb") ? r Dec 05 08 04:46p M; cbytes 41'72559 p.6 which result from any work performed by Vendor or Supplier for the Client, shall be deemed to be works made for hire and all rights, title and interest shall belong exclusively to Client unless other arrangements have been agreed to by all parties in writing. 16) COMPLETE ACRF'FhffM A-N) AMEM.?NT This Agreement and any written Purchase Orden, Addendums or Exhibits executed hereunder, contain the entire agreement between the parties hereto with respect to the matters covered herein. Supplier acknowledges that it is entering into this Agreement solely on the basis of the agreements and representations contained herein. This Agreement shall not be modified in any way except as agreed to in writing and signed by both parties and stating expressly that it constitutes a modification of this Agreement. 17) LwW The internal laws of the state of PENNSYLVANIA shall govern this Agreement, without regard to its conflict of law rules, and any lawsuits pertaining to this Agreement or the services provided hereunder shall be decided in the federal or state courts in the state of Massachusetts. Supplier hereby consents to the exercise of jurisdiction over it by such courts. 19) MILEAM Since monetary damages are difficult to ascertain and are likely to be inadequate to compensate either party in the case of any breach of this Agreement by the other party, the parties agree that either parry shall be entitled to injunctive relief (both temporary and permanent) for any breach or proposed breach of this Agreement. In addition, the party who is found to have breached this Agreement shall be liable for any damages, costs and fees incurred by the other non-breaching parry and relating to such breach. Each party also agrees to indemnify and hold harmless the other for any and all losses, costs and other liabilities incurred, including costs and fees, relating to any breach of the obligations set forth herein. For and on behalf of. MICROBYTES INC By: (Authorized signature) (Typed or printed) Title: Date: For and on behalf of: Supplier's Name: X-Pert Technologies, Inc By: (Authorized signature) (Typed or printed) Title: r Date: EIN#: .t 1) ] f .? (Federal 1D Number) Oct 28 08 02:12p Mi byte S \j Niic.IUB ITS IN October 28*, 2008 SUBJECT: PURCHASE ORDER COMPANY : PERT TECHNOLOGIES INC FEDERAL ID # 20-2297565 ADDRESS 205 HOUSE AVENUE SUITE 103 CAMP HILL, PA 17011 CANDIDATE BADARI MALLI REDDY SKILLS QA TESTER LOCATION : PITTSBURGH DURATION : 12 MONHTS START DATE : TBD RATE 35/HR ON CORP TO CORP BASIS HOUR PER WEEK : 40 PLUS OVER TIME INVOICE NET 30 Accepted By Name /Title : 412,72559 Should you require additional information, do not hesitate to contact me at (412) 847 2555. ??Siin--cerely, Jay Mahood MicroBytes Inc 9401 McKnight Rd, Suite 301 B, Pittsburgh, PA 15237 Phone: 41 7 2559 Exhibit "B" P.1 I U? \ 4, J "i _,?rt 9 c 2 i s x N r x J 4CN W I 3 w o ? 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Fw° d e O A I W O m Ow0 00 m ? A "? A S O = w O S o m 00 p O o t? me m 0 0 00 ?o f 2 g m m 0 off C 'C ff W a m 10 3 CO m ? N C ..A. A ° J 3 to .a sn o? o°e oe N 9 x z c 2 CD x N to C- IS N ? J 2 NOS, "?i: ??__ w_ 2 4 3 a3 •v y ? v C v A W O~ v ? N N ? A b .j u N d Q7 (.l O 0 x c 2 3 N A 8 tD A O v W s o Z \ . C . . W "3 ? ,b N J N 4h- A O O I A3 r A r r? r N 19 x 43 c 2 3 co CD N 3 s x ? r ? .r N ,, ? x0== t W ? C LAm $IV m ? M N C v A w O J O U3 r a to z a c? O 0 A D b r ao w N 2 X c 2 3 3 A X H ?c tA ? ' ee ? ? ? O ? 7a ? s! Z w O s `^' v z ? 7 70 A b ; Z ti 70 ra 70 C ? r 9 7 n C 3 ,3 ? ? y a a a o C2 ... 3 o a 1s a a 0 IZ4 ° W N ? = 1 0 3 i a ? a a ? = ro am A A 00 d d A A S C m r U ? N O b m Z w 7 ad W s?s? r r ti O ., O_- 03 A N C W U A i? \pert Technologies Inc 205 1louse A\enue Suite 103 C anip Hill, PA 17011 Bill To \hrroB\te, Inc. Pt1 Ht)X ally Pitt,nurgn, PA 15210 Invoice Date Invoice # 1 200k) 1117 P.O. No. Terms Project Net 7 Quantity Description Rate Amount 88 Consulting sen ices for Badari Mallireddy from 01 16.09 to 01 30,09 35.00 3,080.1111 ,rl,r,%i, tc wur rrt,mrt ha?mrnt. Total ,,.,.xwlfi I Exhibit "Dtr r \peil Technultwles Inc 205 11011se A%enue Suite 103 III Ifill. PA 17011 Bill To Mik:rAiNte, Inc. PU BOX -1019 Pittsburgh. PA 15230 Invoice Date invoke # 3 3 -1tuw 421 P.O. No. Terms Project Vet 30 Quantity Description Rate Amount 80 Consulting services for Badari N Mallireddy from 02 16,09 to o2 2' 09 35.00 2.800.00 -1.,,?t, ??? Total r Xpert rechnologies Inc 205 House A%enue Suite 103 Camp Hill, PA 1'011 Bill To %ticroli)tes Inc. PO BOX ?1119 Pittsburgh, PA 15230 Invoice Date invoke tt 3 18 -1009 331 P.O. No. Terms Project Net 30 Quantity Description Rate Amount 90 Consulting services for Badari N Mallireddy from 03.'0109 to 03,15 09 35.00 2,800.00 \1:.glprc, ;ac :.,cur rnanrt ra?rncnt. Total 00 \pert Technologies Inc 205 house Avenue Suite 103 Camp 11111. PA 17011 Bill To %ticroll?tes Inc. PO BOX 019 Pittsburgh. PA 15231) Invoice Date invoke # 4 ti '009 442 P.O. No. Terms Project Net 30 Quantity Description Rate Amount 94 Consulting services for Badari N Mallireddy from 03'16.09 to 0331 09 35.00 3,290.01) 11: ,l,rrcri,ac \ wr l,nmirt r,i%n,cnt. Total Xpert Technologies Inc 205 [louse AN enue Suite 103 Camp 11111, PA 17011 Bill To %licn,HNtes Inc. PU BOX '019 Pittshur¢h. PA 15230 Invoice Date Invoke # a 11 1004 445 P.O. No. Terms Project Net 30 Quantity Description Rate Amount 80 Consulting services for Hadari N Mallircddy from 04:01 09 to 04,15 09 35.00 2.M00.00 ?l ; .il,I,recritc },au pnunl,t Ir,?? mcnt =.?t?tt ???t Total SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release (hereinafter "Agreement") is made and entered into as of this 1921??day of P40 tw%6t,4 , 2010 by and between Xpert Technologies, Inc. ("Xpert") and MicroBytes, Inc. ("Micro Bytes"). WHEREAS, Xpert initiated a legal action against MicroBytes on or about April 28, 2010 by filing a Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, No. 2010-2823 Civil (the "Action"); and WHEREAS, the parties hereto have reached an agreement on the settlement of all claims which Xpert has heretofore asserted, may have asserted, or hereafter could have asserted which are related to the Action, as well as all claims encompassed or which could have been encompassed within the Action, and have mutually agreed to release one another, all as more particularly set forth herein. NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, and intended to be legally bound hereby, the parties agree as follows: 1. Recitals. The recitals set forth above are and shall form a part of this Agreement as if fully set forth hereunder. 2. Payment by MicroBytes to Xpg. As evidenced by the Installment Promissory Note ("Note") executed concurrent herewith and fully incorporated herein, MicroBytes shall pay to Xpert the sum of twelve thousand dollars and no cents ($12,000.00) in good funds not subject to recoupment as a preferential payment, payable in twenty four (24) monthly installments of five hundred dollars ($500.00) each. Payments shall be made payable to the order of "Xpert Technologies, Inc. and Shumaker Williams, P.C." and sent to counsel for Xpert at the address specified in paragraph 7 below. 3. Dismissal of Action. Xpert shall mark the Action as dismissed with prejudice no later than ten (10) days after full and final satisfaction of MicroBytes' payment obligations as set forth in paragraph /2 and the Note. 4. Default. In the event of a breach of this Agreement or default upon the Note, Xpert may take action to enforce MicroBytes' payment obligations as set forth in paragraph 2 and the Note, continue the Action against MicroBytes, file an adversary action in any bankruptcy proceeding or seek any other relief to which it may be entitled. 5. Mutual Releases. As part of the consideration herein, effective only upon full and final satisfaction of all terms and conditions herein, including but not limited to payment by MicroBytes as set forth in paragraph 2 and the Note, Xpert and its officers, employees, subsidiaries, agents, successors and assigns hereby irrevocably release and forever discharge MicroBytes from all actions, known and unknown claims and demands that Xpert now has or hereafter may have by reason of any matter whatsoever arising directly or indirectly out of the basis for any claim or defense which was raised or which could have been raised in the Action. Exhibit "E" As part of the consideration herein, effective only upon full and final satisfaction of all terms and conditions herein, including but not limited to payment by MicroBytes as set forth in paragraph 2 and the Note, MicroBytes and its officers, employees, subsidiaries, agents, successors and assigns irrevocably release and forever discharge Xpert from all actions, known and unknown claims and demands that MicroBytes now has or hereafter may have by reason of any mattes whatsoever arising directly or indirectly out of the basis for any claim or defense which was raised or could have been raised in the Action. No part of this paragraph shall be effective unless and until all of MicroBytes' payment obligations pursuant to paragraph 2 above and the Note are fully and timely satisfied, and no part of this paragraph shall be effective in the event of default upon the Note. 6. Agreement May be Executed and Exchanged in CountgrM. This Agreement may be executed in two counterparts and each such counterpart shall be deemed to be an original instrument, but both counterparts together shall constitute only one Agreement. 7. Notices. Any notice or other communication in connection with this Agreement shall be given in writing, by correspondence, addressed as follows or at such other address as may be designated in writing by the parties to one another: If to Xpert: Ryan P. Siney, Esquire Shumaker Williams, P.C. P.O. Box 88 Harrisburg, PA 17108 If to MicroBytes: Allan J. Opsitnick, Esquire Suite 1301, Manor Building 564 Forbes Avenue Pittsburgh, PA 15219 8. Acknowledgments. Each of the parties signatory to this Agreement represent, warrant and acknowledge, and as to each such party afI~irms, that the following statements are all true and correct and factually accurate in all respects. a. Full Understanding. Legal Advice and Voluntary Agreement. Prior to the execution of this Agreement, each party has carefully read and fully understands all of the provisions of this Agreement. Each party has consulted with, or alternatively, has had the opportunity to consult with, their respective attorney(s) concerning the terms and conditions of this Agreement, and each party has had a full and complete opportunity to participate in the drafting of this Agreement. Each party to this Agreement is voluntarily entering into this Agreement. b. No Defense Based on Drafting. Each party to this Agreement agrees that there shall be no interpretation or construction of this Agreement, or any defense asserted with respect thereto, which is based upon the fact that any of the parties hereto was responsible for drafting all or any portion of this Agreement. 2 of 4 ?0 C. No Other _Promises. Each signatory to ttUS Agreement aeclares, warrants and represents that no promise, inducement or agreement not herein or therein expressed, has been made to such party, and that the terms of this Agreement, including all recitals, are contractual and not a mere recital. 10. Miscellaneous. a. Severability. In the event any part, term or provision of this Agreement is declared or determined to be illegal or invalid by any court of competent jurisdiction, the validity of the remaining parts, terms and provisions shall not be affected thereby, and the illegal or invalid part, term or provision shall be deemed not to be contained in this Agreement, as the case may be. b. Binding Effect. This Agreement constitutes the final and binding understanding between and among all parties signatory hereto and thereto, and this Agreement shall be binding upon and inure to the benefit of all parties signatory hereto and thereto, and their respective personal representatives, successors and assigns. C. Course of Dealina• Amendment. This Agreement may not be supplemented or modified without the written consent of all parties hereto. No terms or conditions not set forth herein shall be of any force or effect. No course of dealing, nor any conduct or custom, between any of the parties hereto or hereto shall be effective to amend, modify or change any of the provisions of.this Agreement or any other document or agreement. d. Headings. Section and subsection headings in this Agreement are included for convenience and reference only and shall not constitute a part of this Agreement for any other purpose and shall not be deemed to affect the meaning or construction of any of the provisions hereof. e. LanQi. The words "hereof," "'whereof," "herein," "therein," "hereunder" and "thereunder" and words of similar import when used in this Agreement shall refer to this Agreement, as the case may be, as a whole and not to any particular provision of this Agreement. Terms in the singular shall include the plural and vice versa. All representations, warranties, agreements and covenants contained among the provisions of this Agreement shall survive the execution and delivery of this Agreement. f. Applicable Law and Forum. This Agreement shall be interpreted and construed under the laws of the Commonwealth of Pennsylvania, and shall be effective as provided herein. Any action brought to enforce this Agreement or any continuation of the Action shall be brought and maintained in the Court of Common Pleas of Cumberland County. Pennsylvania. 3 of 4 071 g. Time is of the Essence. Time is of the essence in connection with all obligations of all parties hereto. I HAVE READ THIS ENTIRE AGREEMENT. I FULLY UNDERSTAND ITS CONTENTS AND INTEND TO BE LEGALLY BOUND HEREBY. W cC Iv fLS; pTT?CT• CSC XPERT TECHN JES, INC. !? J By: 2 Print Name ATTEST: 234793 MICROBYTES, INC. By: Print Name 4of4 g. Time is of the Essence. Time is of the essence in connection with all obligations of all parties hereto. I HAVE READ THIS ENTIRE AGREEMENT. I FULLY UNDERSTAND ITS CONTENTS AND INTEND TO BE LEGALLY BOUND HEREBY. ATTEST: XPERT TECHNOLOGIES, INC. ATTEST: :234793 By: Print Name MICROBYTES, INC. By: Print dnfd INSTALLMENT PROMISSORY NOTE $12,000.00 October , 2010 Commonwealth of Pennsylvania FOR VALUE RECEIVED, MicroBytes, Inc. (hereinafter "Maker"), promises to pay to the order of Xpert Technologies, Inc., its successors or assigns (hereinafter "Payee"), the sum of twelve thousand dollars and no cents ($12,000.00), in accordance with the schedule noted within this Installment Promissory Note ("Note"), and hereby agrees as follows: Schedule. Payments pursuant to this Note shall be made as follows: a. Five hundred dollars and no cents ($500.00) no later than 5:00 P.M. Eastern time on November 1, 2010 and on the first day of each and every subsequent month through and including October 1, 2012. b. Payments shall be made in lawful money of the United States of America in immediately available funds not subject to recoupment as a preferential payment, payable to "Xpert Technologies, Inc. and Shumaker Williams, P.C." and shall be delivered by check or money order to Ryan P. Siney, Esquire, Shumaker Williams, P.C., P.O. Box 88, Harrisburg, Pennsylvania 17108, or to such other place as the holder of this Note may from time to time direct in writing. Time is of the essence with respect to each payment due hereunder. 2. Prepayment. Maker may prepay the entire principal balance due hereunder, at any time, without penalty. 3. Default. Except as provided in paragraph 4, the occurrence of any one or more of the following events shall constitute a Default under this Note and shall render this Note immediately due and payable: a. The failure of Maker to pay any amount due hereunder on the date due; or b. The failure of Maker to comply with any other provision contained in this Note. 4. Right to Cure. The first time that Maker fails to deliver any payment by the date due, Maker shall be entitled to cure the Default by making payment within five (5) business days of the date that payment was due. If, however, Maker fails a second time to deliver any payment by the due date, then Maker shall not be entitled to cure the Default, and Payee may enforce its right to recover the remaining balance due pursuant to this Note, less payments made, without any additional notice or demand. 5. Acceleration. The balance shall be due and immediately payable upon a Default of this Note which is not cured pursuant to paragraph 4 hereof. Exhibit ]"F"' a 6. Waiver. Maker hereby waives demand, presentment for payment, protest, notice of demand, of nonpayment, and of protest. The failure of Payee to exercise any of its rights hereunder in any instance shall not constitute a waiver thereof in that or any other instance. 7. Attorneys' Fees, Costs and Expenses. Maker will reimburse Payee for actual costs and expenses incurred by Payee in enforcing and collecting this Note, plus reasonable attorneys' fees. 8. Release and Modification. Payee may renew or extend this Note, release any party hereto, or waive or modify any provision hereof, without affecting Maker's obligation. 9. Modification and Survival. This Note may not be modified or discharged, in whole or in part, and no right or remedy of Payee or under any other agreement may be waived, except by a written agreement signed by Payee. The provisions of this Note shall survive the cancellation or surrender of this Note. 10. Severability. In the event any part, term or provision of this Note is declared or determined to be illegal or invalid by any court of competent jurisdiction, the validity of the remaining parts, terms and provisions shall not be affected thereby, and the illegal or invalid part, term or provision shall be deemed not to be contained in this Agreement, as the case may be. 11. Governing Law, Jurisdiction and Venue. This Note shall be construed according to the laws of the Commonwealth of Pennsylvania. Maker irrevocably submits to the jurisdiction of Pennsylvania courts and waives any objection to either the jurisdiction or venue of Pennsylvania courts and of the Court of Common Pleas of Cumberland County, Pennsylvania. 12. Authority to Execute. Maker warrants and represents to Payee that the individual executing this Note on behalf of Maker is properly authorized by Maker to execute this Note on Maker's behalf and to duly bind and obligate Maker to all terms and conditions of this Note. I HAVE READ THIS ENTIRE NOTE. I FULLY UNDERSTAND ITS CONTENTS AND INTEND TO BE LEGALLY BOUND HEREBY. ATTEST: MICROBYTES, INC. By: Print Name :234866 Page 2 of 2 From: Ryan Siney To: Opsitnick, Allan J. Date: 12/6/2010 1:01 PM Subject: Re: Xpert/Microbytes Al, Thank you for following up. If we receive the signed note directly from MicroBytes, I will let you know. Ryan Ryan P. Siney Shumaker Williams, P.C. 3425 Simpson Ferry Road Camp Hill, PA 17011 Phone: (717) 763-1121 Fax: (717) 763-7419 www.shuniakenvilliams.coni >>> "Allan J. Opsitnick" <opsitnickslaw@comcast.net> 12/06/10 12:37 PM >>> Ryan; I received another copy of the settlement agreement signed by my client today. He clearly does not understand that there is another document to be signed. Let me clarify asap and have him sign the note and forward to you al opsitnick Allan J. Opsitnick, Esquire 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 O: 412.391.3299 F: 412.391.7310 www.Opsitnickslaw.com This message and its attachments are intended for the use of the recipient(s) named above and may contain confidential information. If you are not the intended recipient of this communication, you are prohibited from reading, printing, copying, forwarding, or saving it. Please delete the message and attachments and notify the sender by email immediately. Any written tax advice included in this document is not intended to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed by the IRS or the PA Dept. of Revenue or any political subdivisions thereof. CERTIFICATE OF CONCURRENCE I hereby certify that I sought concurrence in the filing of the instant Motion from counsel for Defendant, however, no response was received to such request. SHUMAKER WILLIAMS, P.C. 'A. 1* 10 Dated: January 31, 2011 By Ry . Siney, I.D. #209190 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 CERTIFICATE OF SERVICE I, Ryan P. Siney, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify that I served a true and correct copy of the foregoing Plaintiff's Motion for Leave to Amend Complaint on this date by depositing a copy of the same in the possession of the United States mail, first-class, postage prepaid, addressed as follows: Allan J. Opsitnick, Esquire 564 Forbes Avenue, Suite 1301. Pittsburgh, PA 15219 SHUMAKER WILLIAMS, P.C. Dated: January 31, 2011 By AOW Ry . Siney P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 XPERT TECHNOLOGIES, INC. IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. e MICROBYTES, INC., rn DEFENDANT NO. 10-2823 CIVIL Co ,?v w ORDER OF COURT-. -r, AND NOW, this 2"d day of February, 2011, upon consideration of Pla5ts Motion for Leave to Amend Complaint; IT IS HEREBY ORDERED AND DIRECTED that: C) ?r rn ?a ,?ca z-n -a 1. A Rule shall issue upon the Defendant to show cause why the relief requested by the Plaintiff should not be granted; 2. Defendant shall file an Answer to the Plaintiff's Petition on or before February 25, 2011; 3. If requested by either party, argument in this matter will be held on Friday, March 11, 2011, at 8:30 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, M. L. Ebert, Jr., Ryan P. Siney, Esquire Attorney for Plaintiff Allan J. Opsitnick, Esquire Attorney for Defendant Made 'Pie ?3I(I Arco J. bas XPERT TECHNOLOGIES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. No. 2010-2823 Civil MICROBYTES, INC., CIVIL ACTION - EQUITY AND LAW ; -2 Defendant JURY TRIAL DEMANDED-'`" ?`r4=-,a tU ," C:a PETITION TO MAKE ORDER/RULE TO SHOW CAUSE ABSOLLF.; AND NOW COMES, Ryan P. Siney, Esquire, and Shumaker Williams, P 't, respectfully move this Court to make absolute the previous Order of Court/Rule to Show Cause why Plaintiff should not be granted leave to amend its Complaint, and in support thereof, aver as follows: 1. On or about January 31, 2011, Plaintiff filed a Motion for Leave to Amend Complaint. 2. On February 2, 2011, this Court entered an Order directing Defendant to file an Answer to Plaintiff's Motion on or before February 25, 2011. A copy of the February 2, 2011 Order of Court is attached hereto as Exhibit "A." 3. The Rule was returnable February 25, 2011. 4. Defendant has not responded to the Rule or filed an Answer to Plaintiff's Motion, and, therefore, Plaintiff should be granted leave to amend its Complaint in accordance with the Motion for Leave to Amend Complaint. WHEREFORE, Plaintiff, Xpert Technologies, Inc., requests this Honorable Court to make the Rule absolute and allow Plaintiff to amend the Complaint pursuant to the Motion for Leave to Amend Complaint. SHUMAKER WILLIAMS, P.C. Dated: 3/21 1 By Ry P. Siney, I.D. #209196, Ev C. Pappas, I.D. #200103 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Plaintiff :238218 2 XPERT TECHNOLOGIES, INC. IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. MICROBYTES, INC., DEFENDANT NO. 10-2823 CIVIL ORDER OF COURT AND NOW, this 2nd day of February, 2011, upon consideration of Plaintiffs Motion for Leave to Amend Complaint; IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule shall issue upon the Defendant to show cause why the relief requested by the Plaintiff should not be granted; 2. Defendant shall file an Answer to the Plaintiffs Petition on or before February 25, 2011; 3. If requested by either party, argument in this matter will be held on Friday, March 11, 2011, at 8:30 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, M. L. Ebert, Jr., Ryan P. Siney, Esquire Attorney for Plaintiff Allan J. Opsitnick, Esquire Attorney for Defendant bas Exhibit "A" J. CERTIFICATE OF SERVICE I, Ryan P. Siney, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify that I served a true and correct copy of the foregoing Petition to Make Order/Rule to Show Cause Absolute on this date by depositing a copy of the same in the possession of the United States mail, first-class, postage prepaid, addressed as follows: Allan J. Opsitnick, Esquire 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 SHUMAKER WILLIAMS, P.C. Dated: 3/z/ B +RyP. ey 8 Harrisburg, PA 17108 (717) 763-1121 .Z XPERT TECHNOLOGIES, INC., Plaintiff V. MICROBYTES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA .J No. 2010-2823 Civil ?- CIVIL ACTION - EQUITY AND LA;, JURY TRIAL DEMANDED ORDER AND NOW, this day of % L? , 2011, upon consideration of Plaintiff's Petition to Make Order/Rule to Show Cause Absolute, IT IS HEREBY ORDERED that Plaintiff is granted leave to file an Amended Complaint. Distribution: ?rRyan P. Siney, Esquire, Shumaker Williams, P.C., P.O. Box 88, Harrisburg, PA 17108 v?Allan J. Opsitnick, Esquire, 564 Forbes Avenue, Suite 1301, Pittsburgh, PA 15219 died 3l?? 11?K.8 ORIGINAL XPERT TECHNOLOGIES, INC., IN THE COURT OF COMMON PLEAS OF 205 House Avenue, Suite 103, : CUMBERLAND COUNTY, PENNSYLVANIA Camp Hill, PA 17011, Plaintiff V. : No. 2010-2823 Civil MICROBYTES, INC., CIVIL ACTION - EQUITY AND LAW 186 Birch Court, : Pittsburgh, PA 15237, Defendant JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 " J.J L-? f'J AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dfas despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aquf en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 S KER WI S?P.C. Dated: March 16, 2011 By Ry . Sine' I.D. #209190 Evan C. Pappas, I.D. #200103 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Plaintiff XPERT TECHNOLOGIES, INC., 205 House Avenue, Suite 103, Camp Hill, PA 17011, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2010-2823 Civil MICROBYTES, INC., CIVIL ACTION - EQUITY AND LAW 186 Birch Court, Pittsburgh, PA 15237, Defendant JURY TRIAL DEMANDED FIRST AMENDED COMPLAINT AND NOW COMES Plaintiff, Xpert Technologies, Inc., by and through its attorneys, Shumaker Williams, P.C., to respectfully state and aver the following First Amended Complaint against MicroBytes, Inc.: PARTIES 1. Plaintiff, Xpert Technologies, Inc. ("Xpert"), is a Pennsylvania corporation with a registered business address of 205 House Avenue, Suite 103, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Xpert is a provider of computer programming and consulting services. 3. Defendant, MicroBytes, Inc. ("MicroBytes"), is a Pennsylvania corporation with a last known address of 186 Birch Court, Pittsburgh, Pennsylvania 15237. 4. MicroBytes is a software consulting and development company which provides software consulting services and training to its customers. FACTS 5. A Supplier Agreement was entered into and executed by Xpert on December 8, 2008 and by MicroBytes on January 2, 2009, whereby Xpert would introduce technical services personnel candidates to MicroBytes and MicroBytes would submit technical services personnel to provide to clients of MicroBytes. A copy of the Supplier Agreement is attached hereto as Exhibit "A." 6. MicroBytes employed Xpert in the capacity of a "tester" in order to provide necessary expertise in software design and development projects as assigned by MicroBytes. 7. For the project at issue in this action (the "Project"), the ultimate client was U.S. Steel, which engaged the services of Logix Guru; Logix Guru, in turn, engaged the services of MicroBytes. 8. As a practical matter, the relationship between Xpert and MicroBytes was similar to that of a subcontractor (MicroBytes) and sub-subcontractor (Xpert). 9. MicroBytes then submitted a Purchase Order, dated October 28, 2008, to Xpert for services to be rendered by the Xpert's employee, Badari Mallireddy (the "Consultant"), to MicroBytes' client (and ultimately to U.S. Steel). A copy of the October 28, 2008 Purchase Order is attached hereto as Exhibit "B." 10. Pursuant to the Supplier Agreement, Xpert, through the Consultant, provided hourly consulting services for the Project to U.S. Steel, by way of the contract between Xpert and MicroBytes. 11. Xpert, through the Consultant, provided MicroBytes with all consulting services required by the Supplier Agreement and dutifully completed the performance required by such contract. 2 12. The Consultant's salary, wages, fees, and expenses were paid directly by Xpert, and Xpert expected to be reimbursed for these costs by way of the Supplier Agreement with MicroBytes. 13. Pursuant to the Supplier Agreement, the Consultant provided his services on an hourly basis and submitted the required time records for hours worked on the Project. Copies of the time records are attached hereto collectively as Exhibit "C." 14. Xpert submitted Invoices for these consulting services to MicroBytes by Invoices dated February 3, 2009, March 3, 2009, May 18 2009, April 8, 2009, and April 15, 2009. Copies of the invoices are attached hereto collectively as Exhibit "D." 15. Pursuant to the terms of the Supplier Agreement and Purchase Order, all Invoices were to be paid within thirty (30) days. 16. The invoices attached hereto as Exhibit "D" remain unpaid, despite Xpert's best efforts to collect such sums due and owing. 17. The amount due and owing from MicroBytes to Xpert pursuant to the Invoices attached hereto as Exhibit "D" is $14,770.00. 18. Upon information and belief, MicroBytes was fully compensated for the services rendered by Xpert's employee by Logix Guru and/or U.S. Steel. 19. MicroBytes, despite being fully paid for services rendered by the Consultant provided by Xpert, has failed or refused to pay Xpert for the Invoices attached hereto as Exhibit '613." 20. Xpert initiated this action against MicroBytes by the filing of a Complaint on or about April 28, 2010. 3 21. Following the institution of this action, a settlement was reached between the parties and a Settlement Agreement and Mutual Release ("Settlement Agreement") was entered into between the parties. See Settlement Agreement and Mutual Release attached hereto as Exhibit "E." 22. Pursuant to the Settlement Agreement, MicroBytes was to execute an Installment Promissory Note in conjunction with the Settlement Agreement whereby MicroBytes would pay Xpert the settlement amount of $12,000.00 ("Settlement Amount"). See Installment Promissory Note attached hereto as Exhibit "F." 23. Such Settlement Amount was to be paid in twenty-four monthly installments. 24. MicroBytes has failed to execute the Installment Promissory Note as required under the Settlement Agreement and has, to date, only made one $500.00 monthly installment payment to Xpert. 25. Notwithstanding MicroBytes' failure to execute the Installment Promissory Note, the terms of the Installment Promissory Note were incorprated by reference into the Settlement Agreement (which was executed by MicroBytes), and MicroBytes evidenced an intent to be bound by the Installment Promissory Note when it made an initial payment of $500.00 as required by the Installment Promissory Note. 26. As further evidence of MicroBytes' intent to be bound by the Installment Promissory Note, counsel for MicroBytes sent counsel for Xpert an e-mail indicating that MicroBytes would execute the Installment Promissory Note. See December 6, 2010 e-mail attached hereto as Exhibit "G." 4 27. The terms of the Settlement Agreement indicate that the applicable forum for any action brought to enforce the Settlement Agreement or a continuation of this action shall be the Court of Common Pleas of Cumberland County, Pennsylvania. 28. Further, Cumberland County is an appropriate venue for this action because Xpert is located in Cumberland County, MicroBytes conducted business in Cumberland County by negotiating and entering into the Supplier Agreement with Xpert technologies in Cumberland County and MicroBytes' breach of the Settlement Agreement is to be brought and enforced in Cumberland County, Pennsylvania. COUNTI BREACH OF CONTRACT 29. The averments of paragraphs I through 28 above are incorporated herein by reference as if set forth in their entirety. 30. Xpert and MicroBytes entered into a written contract whereby Xpert would provide consulting services to MicroBytes' client. See Exhibit "A." 31. Xpert fully performed all acts required of it by the Supplier Agreement. 32. The Supplier Agreement executed by MicroBytes and the Purchase Order for the Consultant require that MicroBytes pay Xpert's Invoices within thirty (30) days. 33. Pursuant to the Supplier Agreement, the Consultant submitted complete and accurate time records, which were then used to generate invoices submitted to MicroBytes. 34. The Invoices attached hereto as Exhibit "D" were not paid within thirty (30) days and remain unpaid as of the date of the filing of this Complaint. 5 35. MicroBytes' failure to pay Xpert the amount of each Invoice within thirty (30) days is a breach of the terms of the Supplier Agreement entered into between the parties. 36. As a result of this breach, Xpert has suffered damages in the amount $14,770.00. 37. The Supplier Agreement specifically permits the prevailing party in any action to recover the costs and fees association with such action. See Supplier Agreement, attached hereto as Exhibit "A," at paragraph 18. 38. Accordingly, Xpert requests that this Court award it attorneys' fees and the costs of this suit. WHEREFORE, Plaintiff, Xpert Technologies, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, MicroBytes, Inc., in the amount of $14,770.00 plus costs, attorneys' fees, interest, and any additional relief this Honorable Court deems appropriate. COUNT II UNJUST ENRICHMENT 39. The averments of paragraphs 1 through 38 above are incorporated herein by reference as if set forth in their entirety. 40. Xpert provided consulting services to MicroBytes with a value of $14,770.00 which has not been paid by MicroBytes. 41. MicroBytes accepted and retained the benefits of the services provided by Xpert. 42. It is believed and therefore averred that MicroBytes received payment from Logix Guru and/or U.S. Steel for the services provided by Xpert, and MicroBytes has retained the benefits of such payments. 6 43. Due to MicroBytes' failure to pay Invoices submitted by Xpert, MicroBytes has been unjustly enriched in the amount of $14,770.00. WHEREFORE, Plaintiff, Xpert Technologies, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, MicroBytes, Inc., in the amount of $14,770.00 plus costs, attorneys' fees, interest, and any additional relief this Honorable Court deems appropriate. COUNT III QUANTUM MERUIT 44. The averments of paragraphs 1 through 43 above are incorporated herein by reference as though set forth in their entirety. 45. Xpert provided a benefit to MicroBytes by rendering consulting services to MicroBytes' client. 46. MicroBytes has received the full benefit of Xpert's consulting services, but has failed or refused to fully compensate Xpert for such consulting services. 47. Xpert is entitled to be paid $14,770.00 from MicroBytes, representing the value of the unpaid consulting services provided by Xpert to MicroBytes. WHEREFORE, Plaintiff, Xpert Technologies, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, MicroBytes, Inc., in the amount of $14,770.00 plus costs, attorneys' fees, interest, and any additional relief this Honorable Court deems appropriate. 7 COUNT IV BREACH OF CONTRACT AND ENFORCEMENT OF SETTLEMENT AGREEMENT 48. The averments of paragraphs 1 through 47 above are incorporated herein by reference as if set forth in their entirety. 49. Xpert and MicroBytes entered into a Settlement Agreement in full resolution of the claims brought by Xpert in this action. See Exhibit "E." 50. The Settlement Agreement executed by MicroBytes required MicroBytes to remit monthly payments in the amount of $500.00 and to enter into an Installment Promissory Note concurrent with the execution of the Settlement Agreement. 51. MicroBytes remitted one $500.00 payment to Xpert on or about November 15, 2010, but has failed to remit any further payments. 52. In addition, MicroBytes has failed to execute the Installment Promissory Note. See Exhibit "F." 53. MicroBytes has breached the terms of the Settlement Agreement by failing to remit its monthly installment payments and by failing to execute the Installment Promissory Note. 54. MicroBytes, notwithstanding its failure to execute the Installment Promissory Note, is obligated to pay Xpert the sum of $12,000.00, as required by the Settlement Agreement and the Installment Promissory Note which is incorporated therein. 55. MicroBytes' failure to remit the monthly installment payments due under the Settlement Agreement and its failure to execute the Installment Promissory Note are breaches of the terms of the Settlement Agreement. 8 56. The Installment Promissory Note, which was fully incorporated in the Settlement Agreement, specifically requires MicroBytes to reimburse Xpert for the actual costs and expenses, including attorneys' fees, which are incurred by Xpert in the enforcement of the Installment Promissory Note. 57. Accordingly, Xpert requests that this Court award it attorneys' fees and the costs of this suit. WHEREFORE, Plaintiff, Xpert Technologies, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, MicroBytes, Inc., in the amount of $11,500.00 plus costs, attorneys' fees, interest, and any additional relief this Honorable Court deems appropriate. Respectfully Submitted, SHUMAKER WILLIAMS, P.C. Dated: March 16, 2011 By Rya. Siney, I.D. #20919 Evan C. Pappas, I.D. #200103 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Plaintiff :237023 9 0ec 05 08 04:44p rabytes 4 ?-?1472559 MICIAMY"1 ES IN C. SUPPLIER AGREEMENT This AGREEMENT made effective as of the 1' day of November 2009 between MICROBYTES INC, with offices at 9401 McKnight Road, Suite 301-B, Pittsburgh, PA 15237 (hertWaRa "Vendor") and X•pert Technologies Inc, hereinafter (hereloaRer "Supplier") with offices at 203 House Avenue, Suite 103, Camp Hill, PA 17011, whose Federal Tax ID No. is 202297565. WHEREAS Vendor's business is locating technical services personnel for various clients, including the client (hereinafter "Client") listed in any Purchase Order (Exhibit A) executed by Vendor and Supplier and attached to this Agreement, to provide technical services to Client according to the Client's specifications; and WHEREAS Supplier agrees that Vendor will spend substantial resources and time evaluating, qualifying, proposing and/or providing Supplier's technical services personnel to Client, and that Vendor was selected by Client to provide such personnel to Client at the Client locations listed in any attached Purchase Order; and WHERBAS Supplier is in a similar business and desires to join efforts with Vendor for the purpose of providing qualified candidates for the Client of Vendor, and WHEREAS Vendor and Supplier wish to enter into an Agreement pursuant to which Supplier will introduce technical services personnel candidates to Vendor and Vendor may submit said technical services personnel to provide their services to Client. NOW THEREFORE, in consideration of the mutual promises and covenants, the patties agree as follows: 1) DIRECT CONTACT'S The Supplier agrees that it will not communicate in any fashion with the Client's technical or administrative (including contracting, procurement, human resources, ctc.) personnel concerning any effort to provide technical services to Client by any of Supplier's technical services personnel except that Supplier's technical services personnel may communicate with the Client concerning those technical services already being performed by Supplier through Vendor under this Agreement. Supplier will communicate directly and exclusively through Vendor in regard to any additional services not already being performed by Supplier under this Agreement, 2) BILLING AND PAYII?J1 If Supplier's candidates are selected by Client to provide services, Supplier will be compensated by Vendor in accordance with a Purchase Order (Exhibit A) to be attached hereto for each individual who provides such services through Vendor. Billing cycle for all said invoices is Net 30. (No exceptions). A billable hour shall be defined as any hour the Supplier's technical services personnel has worked at the Client site that is recorded on Vendor's timesheet and has been approved by an authorized representative of the Client countersigning the timesheet. The periods for reporting hours are on a weekly basis, the candidate must fax the timesheet to the Vendor no later than 10:00 am on the first business day following the end of each period indicated above. Should Supplier be required to complete a Client timesheet along with Vendor's timesheet, the Supplier must ensure that the same information is on both documents This is critical information for Client billing and Vendor's payment to Supplier. Invoices are accepted for every two weeks of work performed and needs to be sent to 'vtterobytes Inc , Accounts Payable Department, Po. Box 2019, Pittsburgh, PA 15230 Payments are approved as per the Net 30 terms ever the invoice is received. 3) WARRANTY OF SE RyI ;J~5 Vendor shall submit Supplier's tcomical services personnel to Client according to the qualifications, experiences, and project re uirements of the CIien It is within the Vendor's discretion Exhibit "A" J P- 2 Dec 05 08 04:45p )Nrobtjtes 4 472559 whether to propose such personnel to Client. The work to be performed by the technical cervices personnel providing services under this Agreement shall be set forth by Client and stated in a Purchase Order (or similar form). If Client chooses to termurue the services of Supplier's personnel for any reason, including but not limited to unsatisfactory performance, Supplier will be compensated only for services approved and paid for by CIL-nL 4) CONMENTIALLTY Supplier and its technical services personnel agree not to disclose to any third parry information relating to Vendor, its agents, or its clients, if such information could reasonably be construed as confidential. For the purpose of this paragraph, Confidential information includes, but is not limited to, the identity, prior mqui ements, and present or future particular needs, of Vendor or Vendor's Clients, the identity of and background information about management personnel of Vendor's Clients; information regarding the existence of and details about any openings for which a candidate may be proposed or interviewed or has learned about through such interviews, the identification of Vendor's Clients in regard to openings; profit margins, pricing policies and practices, in general and as to particular Clients; sales and marketing techniques, history, data forecasts and material, in general and as to particular Clients; development plans, personnel training techniques and materials; information which relates to Vendor's or Vendor's Clients' actual or anticipated products, software, research inventions, processes, techniques, designs or other technical data; and any other proprietary information belonging to Vendor or Vendor's Clients. The Supplier and Supplier's technical services personnel must not disclose his/her rate of compensation to any other Vendor employee or consultant or any Client employee or other consultant on the same client site or any other Vendor Client site. S) NON-SOLICITATION OF PERSONNEL 01 CLIENTS (A) During the term of this Agreement and fora period of two years alter its termination: (i) Vendor agrees that it will not hire or solicit for hires any of Suppliers technical services personnel who was performing services through Vendor for Client pursuant to this Agreement or any other Supplier personnel about whom Vendor received information or to whom it was introduced as the direct result of any services performed pursuant to this Agreement. (ii) Supplier agrees that it will not hire or solicit for hire any of Vendor's personnel, consultants, or any Client personnel about whom it has received information or to whom it was introduced as the direct result of any services performed pursuant to this Agreement. (B) During the term of Supplier's performance of services for a Client on behalf of Vendor and for one year after the termination of the performance of such services, Supplier agrees that it will not, at a restricted location as set forth in paragraph (E) below, provide or attempt to provide (or advise others of the opportunity to provide) other than through Vendor, thready or indirectly, any services to any Client to which Supplier is providing or has provided services through Vendor. The parties recognize that there may be occasions after the termination of this Agreement in which Supplier is contacted to supply technical services personnel directly or indirectly to Client. These occasions include, but are not limited to the following: (1) Client requests candidates directly fiom Supplier; (2) requests from other vendors to Client for candidates from Supplier to perform services for Client; or (3) addition of Supplier to the Client's "vendor list" (hereinafter "New Eligibdiry Occasions"). Supplier agrees that, even though a New Eligibility Occasion may arise, it will refuse any request to assign any of its technical services personnel to provide services for Client, directly or indirectly in a restricted location, during the restricted period; provided, however, that Supplier may comply with such a request by supplying its technical services personnel through Vendor. (C) For the purposes of this Paragraph S, the term "Client" includes any customers, contractors, subcontractors, or clients of the Client for whom Supplier's personnel performed services or for whom Vendor proposed that Supplier would perform services in a restricted location during the restricted time period under this Agreement. (D) The "restricted period" shaU begin on the later of the date of the last performance of services or the date of the last proposal submitted by Vendor to Client. The Restricted period shall end on the latest of the following dates: (1) Two year from the date on which any technical services personnel last performed services for Client under this Agreement; (2) two year from the date on which Vendor last prupuscd a particular individual to Client; or (3) two year from the date on which an interview with Client arranged by Vendor took place. (E) The "restricted location" shall be any Client facility located within a 25-mile radius of the Client facility at p.3 Dec 05 08 4;ob 41 )r72559 p.4 which or for which Supplier's personnel last performed services, was assigned to perform services, or was introduced to or interviewed by the Client to perform services. 6) ;NOTICE O TERNMATIOrI This agreement may be terminated by either party upon thirty (30) days written notice, provided, however that Vendor may terminate a purchase order upon shorter notice, or no notice, at the Client's request. The provisions in paragraphs 4. S, and 13 shall survive the termination of this Agreement. A purchase order nay he terminated only upon (30) days written notice and no earlier than the agreed upon "end date" as stated is section one of the purchase order. Supplier may, however, terminate a purchase order by refusal of extension with (30) days prior written notice as stated in section two of the purchase order. 7) INgLMANCj? Hefom providing services, Supplier will obtain for itself and its personnel at its own expense, comprehensive General Liability (GL) insurance coverage for projects covered by this Agreement, for limits of liability not less than 51,000,000.00 and, if available under state law, worker's compensation coverage with limits of not less than f 1,000,000.00 and will name Vendor as Additional Insured and provide a copy of the binder, the policy or a ce tillcate of insurance to Vendor upon request. S) LZABMM Ileaause of the independent status of Supplier, it is solely and completely accountable for the services it provides to the Client. Neither Vendor nor the Client, nor any of Client's contractors, subcontractors, Customets or Clients, shall have any liability whatsoever to any party rot such services provided by Supplier or its personnel. Vendor will not indentnilir Supplier for any liability incurred by Supplier, or its technical service personnel. Although Vendor will act in good faith to describe the task requirements set forth by the Client, Vendor has no right to control any aspect of the project on which Supplier will be working. Moreover, Supplier and/or its technical services personnel will have the opportunity to discuss task requirements dUrWy with the Client prior to acceptance of the project offered by the Client. Supplier, therefore, reJeases Vendor from any liability relating to representations about the task requirements or to the conditions under which Supplier will be working. Supplier shall indemnify Vendor if Supplier causes Vendor to breach its agreement with the Client. Supplier also agrees to release Vendor from any liability for statements made by Vendor, without malice, to third parties who may inquire about Supplier's performance. 9) ZXpZ.Dj No travel, living, and/or entertainment costs will be paid by Vendor. Whether the Client for whom Supplier is performing services will pay any such costs is a matter between Supplier and the Client. Supplier should include in its invoice any reimbursable expenses authorized by the Client in accordance with industry practice. Vendor will not pay for or provide training, tools, equipment or other materials to Supplier. Supplier's invoiced hours will include no time spent in formal training and Supplier represents that it is not being provided such formal training by Vendor, the Client or anyone acting on behalf of Vendor or Client. 10) 1:_-*.ML OYEPS Supplier agrees that any technical services personnel provided by Supplier are employees of Supplier and are not employees of Vendor or Client; that Supplier at all times retains the primary control over its personnel, including the right to recruit, qualify, hire, terminate, set compensation and benefits, establish codes of conduct, monitor, discipline, establish minimum or maximum work hours and other conditions of work; that Supplier's personnel will not be entitled to any rights, benefits or privileges provided by Vendor or Client to its own employees; that neither Vendor nor Client will be liable fur payment of employment taxes, worker's compensation, previous sponsorship/visa fees, or other benefits provided to Suppliets personnel, and that Supplia is responsible for these matters and for paying/withholding FICA, FUTA, FIT and similar taxes with respect to its Employees; that Supplier's personnel will abide by the confidentiality and restrictive covenant provisions of this Agreement; and that Supplier will advise its personnel and obtain their agreement to the foregoing in writing prior to the commencement of their services hereunder through execution of the Agreement for Supplier's Employee (attached as Exhibit 9 hereto). Supplier shall indemnify and hold harmless Vendor from all damages, costs and expenses resulting from any claims by Supplier's personnel that such personnel for benefits and/or are covered by the Client's or Vendor's employee benefit plans. 11) CONWI- ANCE WITH LAWS ON USE OF ALLEN WORKERS If applicable, for each employee provided by Dec 05 08 04:46p r l obytes 41 72559 p.5 the Supplier to Vendor, Supplier agrees and warrants that it will comply with all laws related to work being performed by alien workers in the United States Including, but not Iunited to, the following: (A) Supplier is a United States of America ("USA") corporation. Suppliers technical services personnel will be employees of such corporation, and such corporation will be their employer. Accordingly, the personnel will be on the payroll of such corporation that maintains copies in the USA of all payroll, wage and hour, and similar records required by the United Slues Department of Labor. (B) Suppliers sponsored employee must have a valid H-19 visa based on a Labor Condition Application ("LCA") validly filed and maintained by Supplier. For all work performed in the USA, Suppliers sponsored technical services personnel will be paid the higher of the actual or prevailing wage in accordance with the LCA for such work in the locality where the wont is being performed. Supplier represents that such wage will be properly stated on the LCA required to be filed with the Department of Labor for such employee, and such wage does not and will not include the value of any non-cash or in-kind benefits such as apartment or auto rentals, or any amounts reimbursed to the employee as per diem expenses, or the value of any other such fringe benefits. For each employee under this Agreement, Supplier will provide a copy of the LCA to Vendor. (C) Supplier represents that it is responsible for and in control of the payment of wages to its employee(s) under this Agreement, and that all required federal, state and local taxes, whether income, employment, excise or of any other type, wdl be paid by Supplier as the employer of all personnel under this Agreement In the event that Vendor is requested to make payments directly to any entity other than Supplier, which shall be in the sole discretion of Vendor, and if such entity is not a USA corporation, then Supplier shall ensure that such entity has filed with federal, state and local authorities all documentation and statements required for such entity to receive payments from Vendor without any back-up or other withholding by Vendor from such payments, and Supplier will provide Vendor with copies of such documentation and statements (L&, IRS Form 4224). (D) Supplier agrees that Vendor may require the technical services personnel provided pursuant to this Agreement to execute such forms as Vendor may request to confirm the representations in this Agreement, including INS Form 1.9. (E) Supplier agrees that any breach of the above provisions in paragraphs A through D shall constitute a material breach of this Agreement with Vendor. 12) ASSIGNS Neither party may assign or otherwise transfer this Agreement or any interest hereunder to any third party without the prior written consent of the other party. This Agreement shall be binding upon and inure to the benefit of heirs, successors, assigns, and delegates of the parties hereto. 13) NOTICES Any requirement to "notify" or for "notice" or "notification" in connection with the subject matter of this Agreement shall be in writing and shall be effective either when delivered personally to the party for whom intended, or five (S) days following the deposit of the same into the United States mail, certified mail, retum receipt requested, addressed to such parry at the address set forth on page I of this Agreement. Either party may designate a different address by notice to the other given in accordance herewith. 14) SEVERABILI Y If any term or provision of this Agreement shall be found by a court of competent jurisdiction to be illegal or otherwise unenforceable, the same shall not invalidate the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court's opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth. 15) RIGHTS TO OWNERSHIP OF DOCUMENTATION Supplier and Vendor hereby agree that all material, documentation and other tangible expressions of information including but not limited to software programs and software documentation, technical data or marketing data as applicable, whether to final production ur draft, Jan 06 09 03:46p By. ]'ide: Dave: I'm ¦ fy? obtstvs , ?crooytot 4 1( 72559 4120t$11! whXh a& ltiaat art wort Wftf W by Venda a S-Ppfior br tb C11ant,'bid be deemed a bt worb nrde lbr hm 6" as now% a" W www" rA4 bd,,,d cxcttuav4y to Cum Vokm o w "Taws "We have (K" ?rew/ to by ap wtw in wdu* 1p ANDA TbA Aposo t and my ifl Ptwtelaae OMM Adde mism a Lrbltbill as wool ban WW. cewia d =*4 ornrAw beweew the Poldo hewer wMA tetOaR a the a efto Wand bomb. 349da aelmowkdp dut a is enoetft am thie Agvenm sW* as dte NO at ft 0"1410 ttld WOMMdOft aowtW4d heteia. 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APon `Ticieolog%, Lc (Awrerinwl ri?wahw) 17ype t> M Title: H O ligih°r`j Dow: 1 al o?p? Erna ?_?19?CE,c ?.e«a+ to ?wwnwtitrl R.6 p.I ti 4 Dec 05 08 04:46p obytes 41 72559 p,6 which result front any work performed by Vendor or Supplier for the Client, shall be deemed to be works made for hurt u?d all rights, title and interest shall belong exclusively to Client unless other arrangements have been agreed to by all parties :n writing. 16) rnMZ ETE ar;QFFtt r> NT AND M1 I M M this Agreement and any wtiaen Purchase Orden, Addendum$ or Exhibits executed hereunder, contain the entire agreement between the parties hereto with respect to the matters covered herein. Supplier acknowledges that it is entering into this Agreement solely on the basis of the agreements and representations contained herein. This Agreement shall not be modified in any way except as agreed to in writing and signed by both parties and stating expressly that it constitutes a modification of this Agreement. 17) LAX The internal laws of the state of PENNSYLVANIA shall govern this Agreement, without regard to its conflict of law rules, and any lawsuits pertaining to this Agreement or the services provided hereunder shall be decided in the federal or state courts in the state of Massachuseas. Supplier hereby consents to the exercise of jurisdiction over it by such courts. IS) JUACC$ Sines monetary damages are difficult to ascertain and are likely to be inadequate to compensate etcher party in the case of any breach of this Agreement by the other party, the parties agree that either party shall be entitled to injunctive relief (both temporary and permanent) for any breach or proposed breach of this Agreement. In addition, the parry who is found to have breached this Agreement shall be liable for any datna8m, costa and fees incurred by the other non-breaching party and relating to such breach. Each party also agrea to indemnify and hold harmless the other for any and all losses, costs and other liabilities incurred, including costs and fees, relating to any breach of the obligations set forth herein. For and on behalf oh NIICROHYTES INC r By: (Authorized signature) (Typed or printed) Tide: Date: For and on behalf oh Supplier's Name: X-Pert Technologies, Inc By: \ _: •L_Y-\ (Authorized signature) (Typed or printed) Title: Date: i EINtt: I- (Federal ID Number) Oct 28 08 02:12p f "'abyteS MICII)BYTE-S IN(" October 28", 2008 SUBJECT: PURCHASE ORDER COMPANY : PERT TECHNOLO6IES INC FEDERAL ID # 20-2297565 ADDRESS 205 HOUSE AVENUE SUITE 103 CAMP HILL, PA 17011 CANDIDATE SADARI MALLI REDDY SKILLS QA TESTER LOCATION : PITTSBURGH DURATION. 12 MONHTS START DATE : TOO RATE 35/HR ON CORP TO CORP BASIS HOUR PER WEEK : 40 PLUS OVER TIME INVOICE . NET 30 Accepted By : Name / Title 41 ' 72559 Should you require additional information, do not hesitate to contact me at (412) 847 2555. Sincerely Jay `Mahood MicroBytes Inc N \ P.1 1 9401 -McKnight Rd, Suite 301 B, Pittsburgh, PA 15237 Phone: 41 7 2559 l Exhibit "B" J . 4 1? f I-f ' s y ? 1 ;a A ? lia! 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PA 1-011 Invoice Date invoice k 4 4 `rn W 442 1 \pert rcoinulogies Inc '(){ liuua ANCIlue Suite I03 ('antp IGII, PA I'OI I Invoice Date invoice a 4 1 -,1 )414) 445 SETTLE4 1lE AGREEMENT ANU MUTUAL "tELEASE This Settlement Agreement and Mutual Release (hereinafter "Agreement") is made and entered into as of this 16 1t" day of NQVt%01,N6", 2010 by and between Xpert Technologies, Inc. ("Xpert") and MicroBytes, Inc. ("Micro Bytes"). WHEREAS, Xpert initiated a legal action against MicroBytes on or about April 28, 2010 by filing a Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, No. 2010-2823 Civil (the "Action"), and WHEREAS, the parties hereto have reached an agreement on the settlement of all claims which Xpert has heretofore asserted, may have asserted, or hereafter could have asserted which are related to the Action, as well as all claims encompassed or which could have been encompassed within the Action. and have mutually agreed to release one another, all as more particularly set forth herein. NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, and intended to be legally bound hereby, the parties agree as follows: 1. Recitals. The recitals set forth above are and shall form a part of this Agreement as if fully set forth hereunder. 2. Payment by MicroB es to usrt As evidenced by the Installment Promissory Note ("Note") executed concurrent herewith and fully incorporated herein, MicroBytes shall pay to Xpert the sum of twelve thousand dollars and no cents ($12,000.00) in good funds not subject to recoupment as a preferential payment, payable in twenty four (24) monthly installments of five hundred dollars ($500.00) each. Payments shall be made payable to the order of "Xpert Technologies, Inc. and Shumaker Williams, P.C." and sent to counsel for Xpert at the address specified in paragraph 7 below. 3. Dismissal of Action. Xpert shall mark the Action as dismissed with prejudice no later than ten (10) days after full and final satisfaction of MicroBytes' payment obligations as set forth in paragraph 2 and the Note. 4. Default. In the event of a breach of this Agreement or default upon the Note, Xpert may take action to enforce MicroBytes' payment obUgations as set forth in paragraph 2 and the Note, continue the Action against MicroBytes, file an adversary action in any bankruptcy proceeding or seek any other relief to which it may be entitled. 5. Mutual Releases. As part of the consideration herein, effective only upon full and final satisfaction of all terms and conditions herein, including but not Umited to payment by MicroBytes as set forth in paragraph 2 and the Note, Xpert and its officers, employees, subsidiaries, agents, successors and assigns hereby irrevocably release and forever discharge MicroBytes from all actions, known and unknown claims and demands that Xpert now has or hereafter may have by reason of any matter whatsoever arising directly or indirectly out of the basis for any claim or defense which was raised or which could have been raised in the Action. Exhibit "E" As part of the consideration h- tn, eftective only upon full and tin ,<, tistaction of all terms and conditions herein, including bnot limited to payment by MieroB ?. as set forth in paragraph 2 and the Note, MicroBytes and its officers, employees, subsidiaries, agents, successors and assigns irrevocably release and forever discharge Xpert from all actions, known and unknown claims and demands that MicroBytes now has or hereafter may have by reason of any matter whatsoever arising directly or indirectly out of the basis for any claim or defense which was raised or could have been raised in the Action. No part of this paragraph shall be effective unless and until all of MicroBytes' payment obligations pursuant to paragraph 2 above and the Note are fully and timely satisfied, and no part of this paragraph shall be effective in the event of default upon the Note. 6. Agreement May be Executed and Exchanged in CountsMut.. This Agreement may be executed in two counterparts and each such counterpart shall be deemed to be an original instrument, but both counterparts together shall constitute only one Agreement. 7. Notices. Any notice or other communication in connection with this Agreement shall be given in writing, by correspondence, addressed as follows or at such other address as may be designated in writing by the parties to one another: If to Xpert: Ryan P. Siney, Esquire Shumaker Williams, P.C. P.O. Box 88 Harrisburg, PA 17108 If to MicroBytes: Allan J. Opsitnick, Esquire Suite 1301, Manor Building 564 Forbes Avenue Pittsburgh, PA 15219 8. Acknowledgments, Each of the parties signatory to this Agreement represent, warrant and acknowledge, and as to each such party atfu•ms, that the following statements are all true and correct and factually accurate in all respects. a. Full Understanding. Legal Advice and Voluntary Ag=n'nt. Prior to the execution of this Agreement, each party has carefully read and fully understands all of the provisions of this Agreement. Each party has consulted with, or alternatively, has had the opportunity to consult with, their respective attorney(s) concerning the terms and conditions of this Agreement, and each party has had a full and complete opportunity to participate in the drafting of this Agreement. Each party to this Agreement is voluntarily entering into this Agreement. b. No Defense Based on Drafting. Each party to this Agreement agrees that there shall be no interpretation or construction of this Agreement, or any defense asserted with respect thereto, which is based upon the fact that any of the parties hereto was responsible for drafting all or any portion of this Agreement. 2 of 4 0 C. (L . Each signatory to ttus ement aeclares, warrants and represents that no promi , inducement or agreement not here Zor therein expressed, has been made to such party, and that the terms of this Agreement, including all recitals, are contractual and not a mere recital. 10. Miscellaneous. a. Severabilitv. In the event any part, term or provision of this Agreement is declared or determined to be illegal or invalid by any court of competent jurisdiction, the validity of the remaining parts, terms and provisions shall not be affected thereby, and the illegal or invalid part, term or provision shall be deemed not to be contained in this Agreement, as the case may be. b. Binding Effect. This Agreement constitutes the final and binding understanding between and among all parties signatory hereto and thereto, and this Agreement shall be binding upon and inure to the benefit of all parties signatory hereto and thereto, and their respective personal representatives, successors and assigns. C. Course of Dealing: Amendment. This Agreement may not be supplemented or modified without the written consent of all parties hereto. No terms or conditions not set forth herein shall be of any force or effect. No course of dealing, nor any conduct or custom, between any of the parties hereto or hereto shall be effective to amend, modify or change any of the provisions of this Agreement or any other document or agreement. d. headings. Section and subsection headings in this Agreement are included for convenience and reference only and shall not constitute a part of this Agreement for any other purpose and shall not be deemed to affect the meaning or construction of any of the provisions hereof. e. j,angu,agg. The words "hereof," "whereof," "herein," "therein,,, "hereunder" and "thereunder" and words of similar import when used in this Agreement shall refer to this Agreement, as the case may be, as a whole and not to any particular provision of this Agreement. Terms in the singular shall include the plural and vice versa. All representations, warranties, agreements and covenants contained among the provisions of this Agreement shall survive the execution and delivery of this Agreement. f. Applicable Law and Forum. This Agreement shall be interpreted and construed under the laws of the Commonwealth of Pennsylvania, and shall be effective as provided herein. Any action brought to enforce this Agreement or any continuation of the Action shall be brought and maintained in the Court of Common Pleas of Cumberland County. Pennsylvania. 3 of 4 071 g. Time is of the Essence. Time is of the essence in connection with all obligations of all parties hereto. I HAVE READ THIS ENTIRE AGREEMENT. I FULLY UNDERSTAND ITS CONTENTS AND INTEND TO BE LEGALLY BOUND HEREBY. W (T tv L5 .AZTZST_. ((C XPERT TECHN IES, INC. By: '' `-? ACC 2rs iu lvt Print Name ATTEST: :234793 MICROBYTES, INC. By: Print Name 4of4 g. Time the sence. Time is of the, Pence in connection with all obligations of all parties herei . I HAVE READ THIS ENTIRE AGREEMENT. I FULLY UNDERSTAND ITS CONTENTS AND INTEND TO BE LEGALLY BOUND HEREBY. ATTEST: ATTEST: :234793 XPERT TECHNOLOGIES, INC. By: Print Name MICROBYTES, INC. By: Print d of d INSTALLMENT PROMISSORY NOTE $12,000.00 October , 2010 Commonwealth of Pennsylvania FOR VALUE RECEIVED, MicroBytes, Inc. (hereinafter "Maker"), promises to pay to the order of Xpert Technologies, Inc., its successors or assigns (hereinafter "Payee"), the sum of twelve thousand dollars and no cents ($12,000.00), in accordance with the schedule noted within this Installment Promissory Note ("Note"), and hereby agrees as follows: 1. Schedule. Payments pursuant to this Note shall be made as follows: a. Five hundred dollars and no cents ($500.00) no later than 5:00 P.M. Eastern time on November 1, 2010 and on the first day of each and every subsequent month through and including October 1, 2012. b. Payments shall be made in lawful money of the United States of America in immediately available funds not subject to recoupment as a preferential payment, payable to "Xpert Technologies, Inc. and Shumaker Williams; P.C." and shall be delivered by check or money order to Ryan P. Siney, Esquire, Shumaker Williams, P.C., P.O. Box 88, Harrisburg, Pennsylvania 17108, or to such other place as the holder of this Note may from time to time direct in writing. Time is of the essence with respect to each payment due hereunder. 2. Prepayment. Maker may prepay the entire principal balance due hereunder, at any time, without penalty. 3. Default. Except as provided in paragraph 4, the occurrence of any one or more of the following events shall constitute a Default under this Note and shall render this Note immediately due and payable: a. The failure of Maker to pay any amount due hereunder on the date due; or b. The failure of Maker to comply with any other provision contained in this Note. 4. Right to Cure. The first time that Maker fails to deliver any payment by the date due, Maker shall be entitled to cure the Default by making payment within five (5) business days of the date that payment was due. If, however, Maker fails a second time to deliver any payment by the due date, then Maker shall not be entitled to cure the Default, and Payee may enforce its right to recover the remaining balance due pursuant to this Note, less payments made, without any additional notice or demand. 5. Acceleration. The balance shall be due and immediately payable upon a Default of this Note which is not cured pursuant to paragraph 4 hereof. I Exhibit "F" 6. Waiver. Maker hereby waives demand, presentment for payment, protest, notice of demand, of nonpayment, and of protest. The failure of Payee to exercise any of its rights hereunder in any instance shall not constitute a waiver thereof in that or any other instance. 7. Attorneys' Fees, Costs and ExMnses. Maker will reimburse Payee for actual costs and expenses incurred by Payee in enforcing and collecting this Note, plus reasonable attorneys' fees. 8. Release and Modification. Payee may renew or extend this Note, release any party hereto, or waive or modify any provision hereof, without affecting Maker's obligation. 9. Modification and Survival. This Note may not be modified or discharged, in whole or in part, and no right or remedy of Payee or under any other agreement may be waived, except by a written agreement signed by Payee. The provisions of this Note shall survive the cancellation or surrender of this Note. 10. Severability. In the event any part, term or provision of this Note is declared or determined to be illegal or invalid by any court of competent jurisdiction, the validity of the remaining parts, terms and provisions shall not be affected thereby, and the illegal or invalid part, term or provision shall be deemed not to be contained in this Agreement, as the case may be. 11. Governing Law. Jurisdiction and Venue. This Note shall be construed according to the laws of the Commonwealth of Pennsylvania. Maker irrevocably submits to the jurisdiction of Pennsylvania courts and waives any objection to either the jurisdiction or venue of Pennsylvania courts and of the Court of Common Pleas of Cumberland County, Pennsylvania. 12. Authority to Execute. Maker warrants and represents to Payee that the individual executing this Note on behalf of Maker is properly authorized by Maker to execute this Note on Maker's behalf and to duly bind and obligate Maker to all terms and conditions of this Note. I HAVE READ THIS ENTIRE NOTE. I FULLY UNDERSTAND ITS CONTENTS AND INTEND TO BE LEGALLY BOUND HEREBY. ATTEST: 233866 MICROBYTES, INC. By: Print Name Page 2 of 2 From: Ryan Siney To: Opsitnick. Allan J. Date: 12,'6,2010 1:01 Pit Subject: Re: XPCMMicrobytes Al. Thank you for following up. If we receive the signed note directly from MicroBytes, I will let you know. Ryan Ryan P. Siney Shumaker Williams, P.C. 3425 Simpson Ferry Road Camp Hill, PA 17011 Phone: (717) 763-1121 Fax: (717) 763-7419 www.shuniakenvilliams cone >>> "Allan J. Opsitnick" <opsitnickslaw@comcast.net> 12/06/10 12:37 PM >>> Ryan; I received another copy of the settlement agreement signed by my client today. He clearly does not understand that there is another document to be signed. Let me clarify asap and have him sign the note and forward to you. al opsitnick Allan J. Opsitnick, Esquire 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 O: 412.391.3299 F: 412.391.7310 www.Opsitnickslaw.com This message and its attachments are intended for the use of the recipient(s) named above and may contain confidential information. If you are not the intended recipient of this communication, you are prohibited from reading, printing, copying, forwarding, or saving it. Please delete the message and attachments and notify the sender by email immediately. Any written tax advice included in this document is not intended to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed by the IRS or the PA Dept. of Revenue or any political subdivisions thereof. VERIFICATION The undersigned, Kris Putluri, hereby verifies and states that: 1. He is the Treasurer of the Plaintiff in the within action; 2. The facts set forth in the foregoing Amended Complaint are true and correct to the best of his knowledge, information and belief; and 3. He is aware that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. XPERT TECHNOLOGIES, INC. Dated: January 27, 2010 By: ?V a K Putluri, reasurer CERTIFICATE OF SERVICE I, Ryan P. Siney, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify that I served a true and correct copy of the foregoing First Amended Complaint on this date by depositing a copy of the same in the possession of the United States mail, first-class, postage prepaid, addressed as follows: Allan J. Opsitnick, Esquire 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 SHUMAKER WILLIAMS, P.C. Dated: March 16, 2011 By &??? Ry . Siney AY P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 FILED-O F1`7 C11 THE FR01-H0 ?P Jf f APR 27 PI i f??s CUMBERLAND CG; JT V PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA XPERT TECHNOLOGIES, INC. 205 House Avenue, Suite 103 Camp Hill, PA 17011 No. 2010-02823 Civil Plaintiff v MICROBYTES, INC. 9401 McKnight Road, Suite 301-B Pittsburgh, PA 15237 Defendant CIVIL ACTION - EQUITY IN LAW ANSWER AND NEW MATTER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Filed on Behalf of Defendant: Microbytes, Inc. Counsel of Record for this Party: Allan J. Opsitnick, Esq. PA I.D. #28126 Suite 1301, Manor Building 564 Forbes Avenue Pittsburgh, PA 15219 412.391.3299 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA XPERT TECHNOLOGIES, INC. 205 House Avenue, Suite 103 Camp Hill, PA 17011 Plaintiff v MICROBYTES, INC. 9401 McKnight Road, Suite 301-B Pittsburgh, PA 15237 No. 2010-02823 Civil CIVIL ACTION - EQUITY IN LAW Defendant ANSWER AND NEW MATTER TO PLAINTIFF'S FIRST AMENDED COMPLAINT AND NOW COMES, Defendant, Microbytes, Inc. (Microbytes) by and through its attorneys, Opsitnick and Associates, and brings the within Answer and New Matter as follows: 1. Admitted; 2. Admitted; 3. Denied, Microbytes' business location is not as shown, but is at another address; 4. Admitted; 5. Admitted; 6. Denied. Microbytes never employed Xpert. A consultant provided by Xpert was retained by Microbytes, placed with another consultant, and ultimately placed, in an end user work site; 7. Admitted; 1 8. This paragraph states a legal conclusion to which no response is required; 9. Admitted; 10. Admitted; 11. Admitted; 12. Admitted and Denied. While Microbytes admits that consultant was to be paid by Xpert, consultant, on at least one occasion, complained to Microbytes that Xpert had not timely paid him; 13. Admitted; 14. Admitted. Additionally, Microbytes alleges that these invoices were not always timely received; 15. Admitted. The response to paragraph 14 above is incorporated herein; 16. Admitted; 17. Admitted; 18. Admitted; 19. Admitted and Denied. It is admitted that Xpert has not been fully paid for this amount; however, an agreement has been entered into, with partial payment having been made, to date; 20. Admitted; 21. Admitted; 22. Admitted, to the settlement agreement, and the amount of settlement; 23. Admitted. It is further alleged that this 24 month period has not expired; 24. Admitted. It is further alleged that Microbytes intends to pay the amount set forth in the settlement agreement within the stated time period; 2 25. Denied. It is denied in that Microbytes has not signed the Note; however, Microbytes signed the Agreement; 26. Admitted and Denied. It is admitted that the December 6, 2010 email was generated by Microbytes' Counsel. It is denied; however, that this email binds Microbytes; 27. Admitted; 28. Denied. On the contrary the agreement between the parties states that Massachusetts has appropriate venue. Furthermore, the agreement was formed in Allegheny County, Pennsylvania; 29. No response is necessary; 30. Admitted; 31. After reasonable investigation Microbytes is unable to admitted or deny the allegations of this paragraph; 32. Admitted; 33. Admitted, to the invoices in question; 34. Admitted and Denied. It is admitted that these invoices where not paid within 30 days, and there is an unpaid balance as of the date of Complaint; however, payments have been made; 35. This paragraph states a legal conclusion to which no response is required; 36. Denied. On the contrary the parties subsequent settlement agreement, and payment made by Microbytes, reduces any claimed amount; 37. This paragraph states a legal conclusion to which no response is required; 38. This paragraph states a legal conclusion to which no response is required; WHEREFORE, Defendant Microbytes Inc. requests that Plaintiff's Complaint be dismissed, with prejudice. 3 39. No response is necessary; 40. Denied. The above answers are incorporated herein; 41. This paragraph states a legal conclusion to which no response is required. To the extent that a response is required the contract, and invoices between the parties speak for themselves; 42. Admitted, in that Microbytes has been paid from its' contractor; 43. Denied. On the contrary, the "benefit of the bargain" received by Microbytes is significantly less than the amount claimed by Xpert, in that Microbytes' revenue margin is extremely small WHEREFORE, Defendant Microbytes Inc. requests that Plaintiff s Complaint be dismissed, with prejudice. 44. No response is required 45. Admitted; 46. Denied. On the contrary Microbytes has paid, or agrees to pay, an appropriate, and mutually agreeable amount of money; 47. See answer to number 43 above; WHEREFORE, Defendant Microbytes Inc. requests that Plaintiff's Complaint be dismissed, with prejudice. 48. No response is required; 49. Admitted; 50. Admitted; 51. Admitted and Denied. Microbytes' ability to submit additional payments, has been impaired by this action; 52. Admitted; 4 53. Denied. On the contrary, execution of the Installment Promissory Note, is not a substantial element of the settlement agreement. Microbytes has made a payment, and was willing to continue payments, until this action was filed; 54. Admitted and Denied. This total amount is admitted; however, payment made by Microbytes, and any other payments so made should be deducted; 55. Denied. See above responses; 56. Denied. In that these provisions were not specifically agreed to by the parties; 57. This paragraph states a legal conclusion to which no response is required. WHEREFORE, Defendant Microbytes Inc. requests that Plaintiff's Complaint be dismissed, with prejudice. NEW MATTER 58. Microbytes was informed by the Xpert Consultant that Xpert had not paid him on time. This occurred on at least one occasion; 59. Xpert contacted Logix Guru regarding payment to its' consultant, bypassing Microbytes, and breaching its agreement with Microbytes, and damaging Microbytes business relationship with third parties; 60. Microbytes has been informed that the Xpert consultant has returned to a position at U.S. Steel which, if so, violates the agreement, arrangement, and understanding between the parties; 61. Monetary damages have been incurred by Microbytes; 62. Microbytes asserts the defenses of failure of consideration, accord, and satisfaction, and payment. 5 WHEREFORE, Defendant Microbytes Inc. requests that Plaintifr s Complaint be dismissed, with prejudice Respectfully submitted, ?j tnick, Esquire Defendant VERIFICATION have read the foregoing n _ ? -I . nn _ R n ?? U? The statements of fact contained therein are true and correct to the best of my personal knowledge, information and belief. This statement and verification are made subject to the penalties of 18 PA. C.S., Subsection 4904, relating to unworn falsification to authorities which provides that if I make knowingly false averments, I may be subject to criminal penalties. i Date IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA XPERT TECHNOLOGIES, INC. 205 House Avenue, Suite 103 Camp Hill, PA 17011 Plaintiff v MICROBYTES, INC. 9401 McKnight Road, Suite 301-B Pittsburgh, PA 15237 No. 2010-02823 Civil CIVIL ACTION - EQUITY IN LAW Defendant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Answer and New Matter to Plaintiff's First Amended Complaint has been served on this 25th day of April, 2011, in the method specified, to the following party(s) listed below: By E-mail: Ryan Siney, Esquire 3425 Simpson Ferry Rd Camp Hill, PA 17011 E-mail: siney_gshumakerwilliams.com Respectfully submitted, Allan J. ( Attorney 7 tnick, Esquire Defendant N?V? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) ! ;EiA { TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within n2t ne • L'? Argument Court.) T ---------------------------------------------------------------------------------------------------------4=4 L A COUNTY CAPTION OF CASE PENNSYLVANIA (entire caption must be stated in full) XPERT TECHNOLOGIES, INC. MICROBYTES, INC. vs. No. 2823 2010 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Motion for Judgment on the Pleadings and to Enforce Settlement Agreement 2. Identify all counsel who will argue cases: (a) for plaintiffs: Ryan P. Siney, Esquire, Shumaker Williams, P.C., P.O. Box 88, Harrisburg, PA 17108 (Name and Address) Allan J. Opsitnick, Esquire, 564 Forbes Avenue, Suite 1301, Pittsburgh, PA 15219 (b) for defendants: (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 16, 2011 Print your name Plaintiff Date: qmbon Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Ryan P. Siney, I.D. #209190 EXPERT TECHNOLOGIES, INC., PLAINTIFF V. MICROBYTES, INC., DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-2823 CIVIL IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND TO ENFORCE SETTLEMENT AGREEMENT BEFORE GUIDO, J. AND EBERT J. ORDER OF COURT AND NOW, this 12t" day of April, 2012, upon consideration of Plaintiff's Motion for Judgment on the Pleadings and to Enforce Settlement Agreement, IT IS HEREBY ORDERED AND DIRECTED that the Motion is GRANTED and judgment in the amount of $11,500.00 plus reasonable attorneys' fees and costs is entered in Plaintiff's favor and against Defendant. ? Ryan Siney, Esquire Attorney for Plaintiff P. O. BOX 88 Harrisburg, PA 17108 Allan Opsitnick, Esquire Attorney for Defendant 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 C r "Cs wxa (c°d L111 12- finJv C By the Court, ?,t UA M. L. Ebert, Jr., J. _.? Pmt r l ?1 EXPERT TECHNOLOGIES, INC., PLAINTIFF V. MICROBYTES, INC., DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2823 CIVIL IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND TO ENFORCE SETTLEMENT AGREEMENT BEFORE GUIDO, J. AND EBERT J. OPINION AND ORDER OF COURT EBERT, J., April 11, 2012- Back2round Pending before this Court is a dispute between Xpert Technologies, Inc. ("Plaintiff') and Microbytes, Inc. ("Defendant"). A brief procedural history is provided to better illustrate the timeframe of events. This civil action commenced on April 28, 2010, when Plaintiff filed a complaint.' On August 20, 2010, Defendant filed Preliminary Objections to Plaintiff's Complaint.2 On November 15, 2010, Plaintiff and Defendant (the "parties") entered into a Settlement Agreement and Mutual Release ("Settlement Agreement") .3 On March 11, 2011, Plaintiff was granted leaved to file an amended complaint.4 On March 17, 2011, Plaintiff filed an amended complaint.5 On April 27, 2011, Defendant filed an Answer and New Matter to Pl.'s Complaint, filed Apr. 28, 2010. ' Def.'s Preliminary Objections, filed Aug. 20, 2010. 3 Pl.s' Motion for Judgment on the Pleadings and to Enforce Settlement Agreement, filed Aug. 19, 2011, Exhibit B. [hereinafter Pl.'s Motion, Ex. _ ]. ' Order of the Court, filed, Mar. 11, 2011. 5 Pl.'s First Amended Complaint, filed Mar. 17, 2011 [hereinafter Amended Cmpl]. 1 Plaintiff's amended complaint.6 On May 17, 2011, Plaintiff filed a reply to Defendant's New Matter.7 On August 19, 2011, Plaintiff filed a motion for judgment on the pleadings.8 The material facts of this case are not in dispute. Plaintiff is a Pennsylvania corporation which provides computer programing and consulting services.9 Defendant is a Pennsylvania corporation which provides software consulting services and training.10 On January 2, 2009, the parties finalized a Supplier Agreement where Plaintiff would provide technical services personnel to assist Defendant's clients." Plaintiff's personnel would then submit invoices to Defendant to be paid within thirty (30) days.12 Plaintiff submitted invoices to Defendant spanning the time periods from February through May of 2009.13 Defendant did not fully pay Plaintiff for invoices, as per the Supplier Agreement, resulting in $14,770 owed. 14 Plaintiff then filed a civil suit against Defendant for, inter alia, breach of contract in the amount of $14,770 plus costs, attorney's fees, and interest. 15 After the filing of the civil suit, the parties reached a Settlement Agreement where Defendant would make twenty-four (24) monthly payments of $500 for a total amount of $12,000 in total satisfaction of all outstanding claims. 16 On or about November 15, 2010, Defendant made a $500 payment to Plaintiff, but has not made any additional payments. 17 There is no dispute between the parties that a valid Supplier Agreement or subsequent Settlement 6 Def's Answer and New Matter to Plaintiff s First Amended Complaint, filed Apr. 27, 2011 [hereinafter Def.'s Answer]. 7 Pl.'s Reply to Defendant's New Matter, filed May 17, 2011. a Pl.'s Motion. 9 Pl.'s Amended Cmpl. 1-2. 10 Pl.'s Amended Cmpl. ¶¶ 3-4. 11 Pl.'s Amended Cmpl. ¶¶ 3-4. 12 Pl.'s Amended Cmpl. ¶¶ 5, 11-17; Pl.'s Motion, Ex. A. " Pl.'s Amended Cmpl. ¶ 14. 14 Pl.'s Amended Cmpl. ¶ 17. 15 Pl.'s Amended Cmpl. ¶ ¶ 17,19. 16 Pl.'s Amended Cmpl. ¶¶ 21-25; Pl.'s Motion, Ex. B.; Def's Answer ¶¶ 22, 24. 17 Pl.'s Amended Cmpl. ¶ 51. 2 Agreement exists or the amount owed to Plaintiff under the Settlement Agreement.18 However, Defendant maintains that no breach of contract has occurred because Defendant intends to pay the amount owed to Plaintiff within the Settlement Agreement's stated time period of 24 months. 19 Discussion Judgment on the Pleadings "Entry of a judgment on the pleadings is permitted under Pennsylvania Rule of Civil Procedure 1034 which provides for such judgment after the pleadings are closed, but within such time as not to delay trial." American Rock Mechanics, Inc. v. N. Abbonizio Contractors, Inc., 887 A.2d 322, 323 (Pa. Super. 2005); see also Bata v. Central-Penn Nat. Bank of Philadelphia, 224 A.2d 174, 178 (Pa. 1966). In determining whether a judgment on the pleadings is warranted, "a trial court must confine its consideration to the pleadings and relevant documents and accept as true all well pleaded statements of facts, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed." McAllister v. Millville Mut. Ins. Co., 640 A.2d 1283, 1285 (Pa. Super. 1994). Judgment on the pleadings may not be entered where material issues of fact are in dispute, however, "the granting of a motion for judgment on the pleadings may be appropriate in cases that turn upon the construction of a written agreement." DiAndrea v. Reliance Say. and Loan Ass'n, 456 A.2d 1066, 1070 (Pa. Super. 1983); see Allstate Fire and Cas. Ins. Co. v. Hymes, 29 A.3d 1169, 1171 (Pa. Super. 2011). 18 De£'s Answer T¶ 5, 21. 19 De£'s Answer ¶¶ 23-24. 3 Breach of Contract "Generally speaking, for a plaintiff to successfully maintain a cause of action for breach of contract requires that the plaintiff establish: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." Gorski v. Smith, 812 A.2d 683, 692 (Pa. Super. 2002). Often the language of a contract and the interpretation of that language are essential in determining whether a duty imposed by the contract was breached. See, e.g., Bruan v. Wal-Mart Stores, Inc., 24 A.3d 875, 957 (Pa. Super. 2011). Interpreting the terms of a contract is a question of law to be decided by the court. Id. (citing McCullen v. Kutz, 985 A.2d 769, 773 (Pa. 2009)). The Pennsylvania Supreme Court has made it clear that the intent of the parties is "embodied in the writing itself, and when the words are clear and unambiguous the intent is to be gleaned exclusively from the express language of the agreement." Delaware County v. Delaware County Prison Employees Indep. Union, 713 A.2d 1135, 1137 (Pa. 1998). "It is a general rule of law in the Commonwealth that where a contract refers to and incorporates the provisions of another, both shall be construed together." Trombetta v. Raymond James Financial Services, Inc., 907 A.2d 550, 560 (Pa. Super. 2006). "If contracting parties choose, they may express their agreement in one or more writings and, in such circumstances, the several documents are to be interpreted together, each one contributing (to the extent of its worth) to the ascertainment of the true intent of the parties." International Milling Co. v. Hachmeister, Inc., I10 A.2d 186, 191 (Pa. 1955). Analysis In the case sub judice, the Supplier Agreement and subsequent Settlement Agreement is clear and unambiguous. Defendant does not dispute the existence of the Settlement Agreement or 4 the amount of settlement. Upon the full and final satisfaction of the Settlement Agreement, the parties agreed to mutually release the other from all claims. Final satisfaction could have been achieved as set forth in paragraph 2 of the Settlement Agreement reproduced below: 2. Payment from MicroB es to Xpert. As evidenced by the installment Promissory Note ("Note") executed concurrent herewith and fully incorporated herein, MicroBytes shall pay to Xpert the sum of twelve thousand dollars and no cents ($12,000.00) ... in twenty four (24) monthly installments of five hundred dollars ($500.00) each. The Settlement Agreement incorporated the Promissory Note which outlined in greater detail Defendant's repayment schedule as set forth in paragraph one, section "a": 1. Schedule. Payments pursuant to this Note shall be made as follows: a. Five hundred dollars and no cents ($500.00) no later than 5:00 P.M. Eastern time on November 1, 2010 and on the first day of each and every subsequent month through and including October 1, 2012. Additionally, the Settlement Agreement contained a "time is of the essence" clause in paragraph 10 subsection "g" and the Promissory Note contains an "acceleration" clause in paragraph 5. These clauses required Defendant to make monthly payments to Plaintiff in a timely manner pursuant to the designated payment schedule or default and face the penalty of having the entire balance owed due immediately. 2() Also, paragraph 7 of the Promissory Note provided reimbursement of Plaintiff's expenses and reasonable attorneys' fees for the cost of enforcing and collecting monies owed pursuant to the Settlement Agreement. Here, Defendant is in default of the Settlement Agreement. Defendant has failed to make additional payments beyond the first $500 payment to Plaintiff. Defendant argues that default has not occurred because the "24 month period mentioned in the Agreement has not expired." Contrary to Defendant's argument, the clear and unambiguous language of the Settlement 20 The Promissory Note allows for a "Right to Cure" for the first time Defendant fails to deliver any payment. Defendant does not allege an attempt to cure. 5 Agreement, and incorporated Promissory Note, plainly required payment of $500 "monthly installments" beginning November 1, 2010 and every subsequent month through October 1, 2012. Therefore, Defendant has failed to comply with the Settlement Agreement and Plaintiff is entitled to enforcement of the settlement in the amount of $11,500.00 plus reasonable costs and attorneys' fees. Finally, Defendant argues that Judgment on the Pleadings is inappropriate because material issues of fact exist. This Court disagrees. "Because Pennsylvania is a fact pleading jurisdiction," Defendant must plead more than legal theory. American Rock Mechanics, Inc. v. N. Abbonizio Contractors, Inc., 887 A.2d 322, 324 (Pa. Super. 2005). However, Defendant simply avers "the defenses of failure of consideration, accord and satisfaction, and payment." Defendant has "failed to develop [its] defense beyond a legal conclusion" and thus, "does not preclude an entry of judgment on the pleadings." Id. Conclusion For the above reasons, this Court finds no material issues of fact exist and Defendant has breached the Settlement Agreement with Plaintiff. Accordingly, the follow Order is entered: AND NOW, this 12th day of April, 2012, upon consideration of Plaintiff's Motion for Judgment on the Pleadings and to Enforce Settlement Agreement, 6 IT IS HEREBY ORDERED AND DIRECTED that the Motion is GRANTED and judgment in the amount of $11,500.00 plus reasonable attorneys' fees and costs is entered in Plaintiff's favor and against Defendant. By the Court, M. L. Ebert, Jr., J. Ryan Siney, Esquire Attorney for Plaintiff P. O. Box 88 Harrisburg, PA 17108 Allan Opsitnick, Esquire Attorney for Defendant 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 7 XPERT TECHNOLOGIES, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. MICROBYTES, INC., DEFENDANT NO. 10-2823 CIVIL ORDER OF COURT AND NOW, this 14th day of May, 2012, the Court being in receipt of a notice of appeal in the above captioned matter, IT IS HEREBY ORDERED AND DIRECTED that: 1. Appellant file a concise statement of the errors complained of on appeal on or before June 4, 2012; 2. The Statement shall be filed of record; 3. The Statement shall be served on this Court pursuant to Pa.R.A.P., Rule 1925(b) (1); IT IS FURTHER ORDERED AND DIRECTED that any issue not properly included in the Statement shall be deemed waived. By the Co For M. L. Ebert, Jr., Xyan Siney, Esquire Attorney for Plaintiff P. O. Box 88 Harrisburg, PA 17108 /Allan Opsitnick, Esquire Attorney for Defendant 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 4J ?d J ? C7 .? xy+ r' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Xpert Technologies, Inc., Plaintiff, VS. Case No.: 2010-2823 Civil r, ? CIVIL ACTION- EQUITY ALA? I nc. Microbytes, rnw MC rn a r-n c Defendant. U)r v° -?`:) r JURY TRIAL DF,MANDED p o '- s c c-n NOTICE OF APPEAL Notice is hereby given that Microbytes, Inc., Defendant above named, hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on the 12th day of April, 2012. The Order has been entered on the docket as evidenced by the attached copy of the docket entry. No transcript was taken in this matter. There is no verbatim record of the proceedings. Respectfully Submitted, Date: 'E; ' 1 1' 12-- All ritnic ! tnick, Esquire Op kan Associates Attorney for )Defendant Microbytes, Inc. PA I. . .: 28126 1301 Manor Building 564 Forbes Avenue Pittsburgh, PA 15219 412.391.3299 412.3 91.73 10 Fax 7 1V 5r7. d V??'` %'\7`Z v ??5?66 I= IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA Xpert Technologies, Inc., Plaintiff, VS. Case No.: 2010-2823 Civil Microbytes, Inc. CIVIL ACTION- EQUITY AND LAW Defendant. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE OF NOTICE OF APPEAL I, Allan J. Opsitnick, hereby certify that I served a true and correct copy of the foregoing Notice of Appeal on May 11, 2012 by first class mail to the following persons: Honorable M. L. Ebert, Jr. 1 Courthouse Square Carlisle, PA 17101 Ryan P. Siney, Esquire Shumaker Williams P.C. PO Box 88 Harrsiburg, PA 17108 Honorable Edward E. Guido 1 Courthouse Square Carlisle, PA 17101 Court Administrator Cumberland County 1 Courthouse Square Carlisle, PA 17101 Respectfully Submitted, 'YAl J. psitnick, Esquire psitmck and Associates ttorney or Defendant Microbytes, Inc. PA-r.-Dr.-No.: 28126 1301 Manor Building 564 Forbes Avenue Pittsburgh, PA 15219 412.391.3299 PYS511 Cumberland County Prothonotary 's Office Page 1 Civil Case Print 2010-02823 XPERT TECHNOLOGIES INC (vs) MICROBYTES INC Reference No..: Filed........: 4/28/2010 Case Tyyppe..... : COMPLAINT Judgmenb......: .00 Time.........: Execution Date 10:40 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. C t 1 i h 0/00/0000 ------------ Case Comments ------------- er r .: H g Higher Crt 2.: *************************************************** ***************************** General Index Attorney Info XPERT TECHNOLOGIES INC PLAINTIFF S INEY RYAN P 205 HOUSE AVE STE 103 CAMP HILL PA 17011 MICROBYTES INC DEFENDANT 9401 MCKNIGHT RD STE 301-B PITTSBURGH PA 15237 ******************************************************************************** Judgment Index Amount Date Desc MICROBYTES INC 11,500.00 4/12/2012 ORDER OF COURT ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 4/28/2010 COMPLAINT - EQUITY BY RYAN P SINEY ESQ ------------------------------------------------------------------- 5/18/2010 SHERIFF'S RETURN - 5/1010 - ALLEGHANEY COUNTY - COMPLAINT AND NOTICE UPON DEFT - NOT OUND SHERIFF'S COST $37.44 ------------------------------------------------------------------- 6/25/2010 PRAECIPE TO REINSTATE COMPLAINT - BY RYAN P SINEY ATTY FOR PLFF ------------------------------------------------------------------- 7/16/2010 SHERIFF'S RETURN - 07/15/2010 - COMPLAINT AND NOTICE UPON DEFT UNABLE TO LOCATE SHERIFF'S COSTS $37.44 ------------------------------------------------------------------- 7/23/2010 PRAECIPE TO REINSTATE COMPLAINT - BY RYAN P SINEY ATTY FOR PLFF ------------------------------------------------------------------- 8/09/2010 SHERIFF'S RETURN - 07/29/2010 - COMPLAINT AND NOTICE UPON DEFT AT 186 BIRCH COURT PITTSBURGH 15237 SHERIFF'S COSTS $37.44 ------------------------------------------------------------------- 8/20/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY ALLAN J OPSITNICK ATTY FOR DEFS - DEFENDANT'S PRELIMINARY OBJECTIONS ------------------------------------------------------------------- 8/20/2010 PRELIMINARY OBJECTIONS - BY ALLAN J OPSITNICK ATTY FOR DEF ------------------------------------------------------------------- 9/07/2010 RESPONSE TO PRELIMINARY OBJECTIONS - BY RYAN P SINEY ATTY FOR PLFF ----------------------------------------------------------------- 10/07/2010 PRAECIPE TO REMOVE FROM THE ARGUMENT COURT LIST FOR OCTOBER 6 2010 - BY ALLAN J OPSITNICK ATTY FOR DEF ------------------------------------------------------------------- 11/12/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFTS PRELIMINARY OBJECTIONS - BY RYAN P SINEY ATTY FOR PLFF ------------------------------------------------------------------- 12/10/2010 ORDER - 12/9/10 IN RE: ARGUMENT COURT - THE CASE LISTED ABOVE HAS BEEN STRICKEN FROM THE 12/15/10 LIST DUE TO THE LISTING PARTYS FAILURE TO FILE A BRIEF - BY KEVIN A HESS PJ ------------------------------------------------------------------- 12/13/2010 PRAECIPE TO REMOVE FROM THE ARGUMENT COURT LIST FOR 12/15/10 - BY RYAN P SINEY ATTY FOR PLFF --------------------------------------------------------------- 1/31/2011 PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT - BY RYAN P SINEY ATTY FOR PLFF ------------------------------- 2/03/2011 ORDER OF COURT - 2/2/11 IN RE: PLFFS MOTION FOR LEAVE TO AMEND COMPLAINT - IT IS HEREBY ORDERED AND DIREQTIF? FR0k-R9C8W& M Testimony whereof, I here unto set my hared and the al of said Court t Carlisle, Pa. L This day of 20 / Pro n to PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2010-02823 XPERT TECHNOLOGIES INC (vs) MICROBYTES INC Reference No..: Filed........: 4/28/2010 Case Type.....: COMPLAINT Time........ 10:40 Judgment......: .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: SHALL ISSUE UPON DEFT TO SHOW CAUSE WHY THE RELIEF REQUESTED BY THE PLFF SHOULD NOT BE GRANTED 2- DEFT SHALL FILE AN ANWER TO THE PLFFS PETITION ON OR BEFORE 2/25/11 3- IF REQUESTED BY EITHER PARTY ARGUMENT IN THIS MATTER WILL BE HELD 3/11/11 AT 8:30 AM IN CR2 CUMBERLAND COUNTY COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 2/3/11 ------------------------------------------------------------------- 3/02/2011 PETITION TO MAKE ORDER/RULE TO SHOW CAUSE ABSOLUTE - BY RYAN P SINEY ATTY FOR PLFF ------------//-------------------------------------------------------1 11 3/11/2011 ABDSOLUTE3/1BY M LNEBERTRE: COPIESKMAILEDR3/11/110 SHOW CAUSE ------------------------------------------------------------------- 3/17/2011 FIRST AMENDED COMPLAINT - BY RYAN P SINEY ATTY FOR PLFF ------------------------------------------------------------------- 4/27/2011 ANSWER AND NEW MATTER TO PLFFS FIRST AMENDED COMPLAINT - BY ALLAN J OPSITNICK ATTY FOR DEFT ------------------------------------------------------------------- 5/17/2011 PLAINTIFF'S REPLY TO DEFTS NEW MATTER - BY RYAN P SINEY ATTY FOR PLFF ------------------------------------------------------------------- 8/19/2011 PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND TO ENFORCE SETTLEMENT AGREEMENT - BY RYAN P SINEY ATTY FOR PLFF ------------------------------------------------------------------- 9/20/2011 PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR JUDGMENT ON THE PLEADINGS TO ENFORCE SETTLEMENT AGREEMENT - BY RYAN P SINEY ATTY FOR PLFF ------------------------------------------------------------------- 4/12/2012 ORDER OF COURT - DATED 04/12/12 - IN RE- PLFFS MOTION FOR JUDGMENT ON THE PLEADINGS AND TO ENFORCE SETTLEMENT AGREEMENT - BEFORE GUIDO J AND EBERT J - THE MOTION IS GRANTED AND JUDGMENT IN THE AMOUNT OF $11,500.00 PLUS REASONABLE ATTYS FEES AND COSTS IS ENTERED IN PLFFS FAVOR AND AGAINST DEFT - BY THE COURT M L EBERT JR J - COPIES MAILED 04/12/12 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq*Bal***Py*mts/Adl End Bal ******************************** **** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 23.50 23.50 .00 REINSTATE COMPL 10.00 10.00 .00 REINSTATE COMPL 10.00 10.00 .00 ------------------------ ------------ 112.00 112.00 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof, I here unto so my hand and the/? of said Court at Cadisie, P? - 20 This 1:. day of __I M&4P?71 superior Court of VeuitOp[bauia Pennsylvania Judicial Center Karen Reid Bramblett, Esq. Middle District P.O. Box 62435 Prothonotary 601 Commonwealth Avenue, Suite 1600 Mary Graybill, Esq. Harrisburg, PA 17106-2435 Deputy y Prothonotary May 16, 2012 (717) 772-1294 www. superior. court, state. Pa. us Buell, David D. Prothonotary -? Cumberland County Courthouse 1 Courthouse Square r-q ICU Carlisle, PA 17013 - -~? cry RE: Xpert Technologies, Inc. ,mac; Tom' V. Microbytes, Inc. , - Appellant = c ; 890 MDA 2012 Trial Court Docket No: 2010-2823 Dear David D. Buell: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully, Mary A. Graybill, Esq. Deputy Prothonotary /ca Enclosure 11:51 A.M. Appeal`Docket Sheet Docket Number: 890 MDA 2012 Page 1 of 2 May 16, 2012 Xpert Technologies, Inc. v. Microbytes, Inc. Appellant Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: May 15, 2012 Journal Number: Case Category: Civil ?'?"CA5GIl? , . Superior Court of Pennsylvania Secure Cn! - CASE INFOWATION Awaiting Original Record Case Type(s) 9cNEt€ uLED EVL44T Civil Action Law RAT - , Next Event Due Date: May 30, 2012 Next Event Due Date: July 13, 2012 Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received C?:`gT+l Appellant Mic Pro Se: No IFP Status: No Attorney: Bar No: Address: :robytes, Inc. Appoint Counsel Status: Represented Opsitnick, Allan Joseph 028126 Law Office Of Allan J. Opsitnick 564 Forbes Ave Ste 1301 Pittsburgh, PA 15219--2908 Phone No: (412) 391-3299 Fax No: Receive Mail: Yes Receive EMail: No Appellee Xpi Pro Se: No IFP Status: No Attorney: Bar No: Law Firm: Address: ;rt Technologies, Inc. Appoint Counsel Status: Represented Siney, Ryan P. 209190 Shumaker Williams, P.C. PO Box 88 Harrisburg, PA 17108 Phone No: (717) 763-1121 Fax No: Receive Mail: Yes Receive EMail: No 11:51 A.M. Superior Court of Pennsylvania Appear Docket Sheet Docket Number: 890 MDA 2012 Page 2 of 2 Secure May 16, 2012 M - Fee Amt Receipt Dt Receipt No Receipt Amt r,.., n+ Faa N'.1mP. 05/15/2012 Notice of Appeal 73.50 05/15/2012 2012-SPR-M-000477 Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Order Appealed From: April 12, 2012 Judicial District: Documents Received: May 15, 2012 Notice of Appeal Filed: Order Type: Order Entered OTN(s): Lower Ct Docket No(s):2010-2823 Lower Ct Judge(s): Guido, Edward E. Judge OFUGMAL RECORD CONTENT Original Record Item Filed Date Cumberland County Civil Division 09 May 14, 2012 Content Description 73.50 Date of Remand of Record: BIRIIEFING'SONtOUEE: None None Filed Date Docket Entry / Representing Participant Type Filed By May 15, 2012 Notice of Appeal Docketed Appellant Microbytes, Inc. May 16, 2012 Docketing Statement Exited (Civil) Middle District Filing Office IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Xpert Technologies, Inc., Plaintiff, VS. Microbytes, Inc. Defendant. Case No.: 2010-2823 Civil CONCISE STATEMENT Filed on Behalf of Defendant: Microbytes, Inc. P^J _ Counsel of Record for this Party: Allan J. Opsitnick, Esq. PA I.D. #28126 1301 Manor Building 564 Forbes Avenue Pittsburgh, PA 15219 (412) 391-3299 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Xpert Technologies, Inc., vs. Microbytes, Inc. Plaintiff, Case No.: 2010-2823 Civil CIVIL ACTION- EQUITY AND LAW Defendant. CONCISE STATEMENT AND NOW comes Defendant/Appellant Microbytes, Inc. by its Attorney Allan J. Opsitnick and Opsitnick and Associates and brings the within Concise Statement, as Ordered pursuant to Pa. RAP §1925 (b) (1) as follows: 1. The Court erred in finding no material facts in dispute therefore granting judgment on the pleading. The Installment Promissory Note proffered to Defendant was never signed. The Installment Promissory Note was an integral part of the Settlement Agreement and Mutual Release executed between the parties; 2. In light of the lack of a signed Installment Promissory Note, Defendant's position that it intended to pay the amount promised during the payment period, which has not yet expired, which allegation is pleaded, creates an issue of fact that must be resolved; 3. The Court erred in determining that Defendant breached the Settlement Agreement and Mutual Release, at least to the extent that would permit judgment to be entered upon the pleadings; 4. The Court erred in finding that the Installment Promissory Note was part of the Settlement Agreement and Mutual Release as it was not signed by the Defendant and as Defendant's pleadings indicate to this counsel at no authority to indicate that it would be signed; 5. The Court erred in finding a meeting of the minds, so as to support a binding enforceable Agreement. Respectfully Submitted, Date: Allan . Op itnic c, Esquire Onsi ick and Associates Atto ey fqi Defendant Microbytes, Inc. PA I.D. o.: 28126 1301 Manor Building 564 Forbes Avenue Pittsburgh, PA 15219 412.391.3299 412.391.7310 Fax IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA Xpert Technologies, Inc., Plaintiff, vs. Case No.: 2010-2823 Civil Microbytes, Inc. CIVIL ACTION- EQUITY AND LAW Defendant. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE OF CONCISE STATEMENT I, Allan J. Opsitnick, hereby certify that I served a true and correct copy of the foregoing Concise Statement on June 1, 2012 by first class mail to the following persons: Honorable M. L. Ebert, Jr. 1 Courthouse Square Carlisle, PA 17101 Ryan P. Siney, Esquire Shumaker Williams P.C. PO Box 88 Harrsiburg, PA 17108 Honorable Edward E. Guido 1 Courthouse Square Carlisle, PA 17101 Court Administrator Cumberland County 1 Courthouse Square Carlisle, PA 17101 Submitted, AIjdh J. psitnick, Esquire Upsitn and Assoc iates or Defendant Microbytes, Inc. o.: 28126 1301 Manor Building 564 Forbes Avenue Pittsburgh, PA 15219 412.391.3299 XPERT TECHNOLOGIES, INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MICROBYTES, INC., DEFENDANTS : NO. 10-2823 CIVIL IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a) EBERT, J., June 11, 2012 - Defendant appeals an order entered on April 12, 2012, granting Plaintiff's Motion for Judgment on the Pleadings and to Enforce Settlement Agreement. Defendant complains of the following matters on appeal:' 1. The Court erred in finding no material facts in dispute therefore granting judgment on the pleadings. The installment Promissory Note proffered to Defendant was never signed. The Installment Promissory Note was an integral part of the Settlement Agreement and Mutual Release executed between the parties; 2. In light of the lack of a signed installment Promissory Note, Defendant's position that it intended to pay the amount promised during the payment period, which has not yet expired, which allegation is pleaded, creates an issue of fact that must be resolved; 3. The Court erred in determining that Defendant breached the Settlement Agreement and Mutual Release, at least to the extent that would permit judgment to be entered upon the pleadings; 4. The Court erred in finding that the Installment Promissory Note was part of the Settlement Agreement and Mutual Release as it was not signed by the Defendant and as Defendant's pleading indicate to this counsel at no authority to indicate that it would be signed; 5. The Court erred in finding a meeting of the minds, so as to support a binding enforceable Agreement. Discussion "The parties to a contract may incorporate contractual terms by reference to a separate, noncomtemporaneous document... including a separate document which is unsigned." 11 Williston on Contracts § 30:25 (4th ed.) (West 2012); see also Shadowbox Pictures, LLC v. Global Enterprises, Inc., 2006 WL 120030, *7 (E.D. Pa.). "Where a writing refers to another document, that other document, or the portion to which reference is made, becomes ' Def.'s Concise Statement pursuant to Pa. R.A.P. 1925(b), June 1, 2012. 1 constructively a part of the writing, and in that respect the two form a single instrument. The incorporated matter is to be interpreted as part of the writing." 11 Williston on Contracts § 30:25 (4th ed.) (West 2012) (citing City of Philadelphia v. Jewell's Estate, 135 Pa. 329, 337 (1890)). This Court did not err in finding that the Installment Promissory Note (the "Note") could be viewed as part of the Settlement Agreement and Mutual Release. The language of paragraph two of the Settlement Agreement and Mutual Release (the "Agreement") clearly incorporates the Note as part of the agreed upon terms of the contract. There is no material issue of fact at dispute between the parties. Defendant claims that under the Agreement the payment period to Plaintiff has not yet expired. Plaintiff claims that under the Agreement the payment period has expired. Neither party is disputing the formation or existence of the contract but merely questioning the interpretation of the terms. Defendant's sole argument relies on contract interpretation. Interpreting the terms of a contract is a question of law to be decided by the courts. See Bruan v. Wal-Mart Stores, Inc., 24 A.3d 875, 957 (Pa. Super. 2011) (citing McCullen v. Kutz, 985 A.2d 769, 773 (Pa. 2009)). Therefore, based upon the April 12, 2012, Order, as well as the above mentioned reasons, judgment on the pleadings was appropriate. This opinion is filed pursuant to Pa.R.A.P. 1925 (a) to supplement our prior opinion in this case. ? Ryan Siney, Esquire Attorney for Plaintiff P. O. Box 88 Harrisburg, PA 17108 By the Court, *\? UAV - - - M. L. Ebert, Jr., ::> f 4; Allan Opsitnick, Esquire Attorney for Defendant 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 dopes ,,. lei( bIld-11 A, CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Superior Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of Pennsylvania The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: XPERT TECHNOLOGIES, INC. Vs. MICROBYTES, INC. 2010-2823 CIVIL TERM 890 MDA 2012 The documents comprising the record have been numbered from No. 1 to 257, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is > >i 'well, Pr Alma Kostjerevac, An additional copy of this certificate acknowledging receipt of this record. Date Signature & Title a . . Commonwealth of Pennsylvania County Of Cumberland ss: 1, David D. Buell , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein XPERT TECHNOLOGIES, INC. Plaintiff, and MICROBYTES, INC. Defendant, as the same remains of record before the said Court at No. 2010-2823 of Civil TeriT14-7 /Z In TFSTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 12th day of I June A. D., 2012 Prothonolarv Kevin A. Hess President Judge of he Ninth Judicial District, composed of the County of Cumberland, do certify that David D. Buell , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts s such full faith and credit are and ought to be given as well in Courts of judicature as lsewhere, and t t the said record, certificate and attestation are in due form of law and made by oiler officer. Pre,i dent Judge Commonwealth of Pennsylvania County of Cumberland ss' I, David D. Buell Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A. Hess by whom the foregoing attestation was made. and who has thereunto subscribed his name, was, at the time of making thereof', and still is President.ludge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and far said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF. I have hereunto set my hand and affixed the seal of said Court this 12 of June A, D. 2012 Pri,ithtnotnr A - . No. Term 19 No. 2010-2823 Civil Term 890 MDA 2012 XPERT TECHNOLOGIES, INC. From Versus MICROBYTES, INC. EXEMPLIFIED RECORD Cumberland County Debt, . . . S Int. from Costs Entered and Filed Prothonotary. 1 a Among the Records and Proceedings enrolled in the court of Common Pleas in and for the Cumberland county c ` in the Commonwealth of Pennsylvania 2010-2823 to No. 890MDA2012 Term. 19 is contained the following: COPY OF Appearance DOCKET ENTRY XPERT TECHNOLOGIES, INC. vs. MICROBYTES, INC. **SEE CERTIFIED COPY OF DOCKET ENTERIES** 2010-02823 XPERT TECI LOGIES INC (vs) MICROBYTES Reference No..: Filed........: 4/28/2010 Case Type.....: COMPLAINT Time.........: 10:40 ''Judgment..... : .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 890 MDA 2012 Higher Crt 2.: ******************************************************************************** General Index Attorney Info XPERT TECHNOLOGIES INC PLAINTIFF SINEY RYAN P 205 HOUSE AVE STE 103 CAMP HILL PA 17011 MICROBYTES INC DEFENDANT 9401 MCKNIGHT RD STE 301-B PITTSBURGH PA 15237 ******************************************************************************** Judgment Index Amount Date Desc MICROBYTES INC 11,500.00 4/12/2012 ORDER OF COURT ******************************************************************************** * * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 1-3(04/28/2010 COMPLAINT - EQUITY BY RYAN P SINEY ESQ -------------------------------------------- $7-385/18/2010 SHERIFF'S RETURN - N/10/10 - ALLEGHANEY COUNTY - COMPLAINT AND NOTICE UPON DEFT OT FOUND SHERIFF'S COST $37.44 ---------------------------------------------------------------- 39 6/25/2010 PRAECIPE TO REINSTATE COMPLAINT - BY RYAN P SINEY ATTY FOR PLFF --------------------------------- 40'4/7/16/2010 SHERIFF'S LRETU OCATE 07/15/2010 - COMPLAINT AND NOTICE UPON DEFT UNABLE TO SHERIFF'S COSTS $37.44 --------------------------------------------------------------- 4,Z7/23/2010 PRAECIPE TO REINSTATE COMPLAINT - BY RYAN P SINEY ATTY FOR PLFF _ ---------------------- 43 8/09/2010 SHERIFF'S RETURNPITTSBURGH- 29/2010237 COMPLAINT AND NOTICE UPON DEFT AT 186 BIRCH COURT SHERIFF'S COSTS $37.44 _ _ _ -------------------- 448/20/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY ALLAN J OPSITNICK ATTY FOR DEFS - DEFENDANT'S PRELIMINARY OBJECTIONS ------------------------------------------------------------ 4S-q$8/20/2010 PRELIMINARY OBJECTIONS - BY ALLAN J OPSITNICK ATTY FOR DEF ------------------------------------------------------------------ L/9-519/07/2010 RESPONSE TO PRELIMINARY OBJECTIONS - BY RYAN P SINEY ATTY FOR PLFF ----------------------------------------------------- -------------- 51.54 10/07/2010 PRAECIPE TO REMOVE FROM THE ARGUMENT COURT LIST FOR OCTOBER 6 2010 - BY ALLAN J OPSITNICK ATTY FOR DEF ----------------------------------------------------------- S5 11/12/2010 OPRAECIPE BJECTIONSOR LLISTTINNGG CASINFORAARGUMENTP- DEFTS PRELIMINARY ------------------------------------------------------------------- 5'6 12/10/2010 ORDER - 12/9/10 IN RE: ARGUMENT COURT - THE CASE LISTED ABOVE HAS BEEN STRICKEN FROM THE 12/15/10 LIST DUE TO THE LISTING PARTYS FAILURE TO FILE A BRIEF - BY KEVIN A HESS PJ ------------------------------ 6-r-5912/13/2010 PRAECIPE TO REMOVE FROM THE ARGUMENT COURT LIST FOR 12/15/10 - BY RYAN P SINEY ATTY FOR PLFF ------------------------------------------- 60-//? 1/31/2011 PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT - BY RYAN P SINEY ATTY FOR PLFF _ _ _ _ Jr9 2/03/2011 CORDER OF OMPLAINTCOUIT IN RE: MOTION 1- AMRUULLE 2010-02823 XPERT TEC1 LOGIES INC (vs) M-CROBYTES Reference No..: Filed........: 4/28/2010 Case Type ...... : COMPLAINT Time.......... 10:40 -Judgment..... .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ----------- - - Higher Crt 1.: 890 MDA 2012 Higher Crt 2.: SHALL ISSUE UPON DEFT TO SHOW CAUSE WHY THE RELIEF REQUESTED BY THE PLFF SHOULD NOT BE GRANTED 2- DEFT SHALL FILE AN ANWER TO THE PLFFS PETITION ON OR BEFORE 2/25/11 3- IF REQUESTED BY EITHER PARTY ARGUMENT IN THIS MATTER WILL BE HELD 3/11/11 AT 8:30 AM IN CR2 CUMBERLAND COUNTY COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 2/3/11 ---------------------------------------------------------------- /113/02/2011 PETITION TO MAKE ORDER/RULE TO SHOW CAUSE ABSOLUTE - BY RYAN P SINEY ATTY FOR PLFF ---------------------- 11f 3/11/2011 ABDSOLUTE3/1BY1M LNEBERTRE: COPIESKMAILEDR3/11/110 SHOW CAUSE ------------------------------------------------------------------- 123-/693/17/2011 FIRST AMENDED COMPLAINT - BY RYAN P SINEY ATTY FOR PLFF ------------------------------------------------------------------- 110-1-1f4/27/2011 ANSWER AND NEW MATTER TO PLFFS FIRST AMENDED COMPLAINT - BY ALLAN J OPSITNICK ATTY FOR DEFT ------------------------------------------------------------------- t7q-1825/17/2011 PLAFNTIFF'S REPLY TO DEFTS NEW MATTER - BY RYAN P SINEY ATTY FOR ------------------------------------------------------------------- I$3-?338/19/2011 PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND TO ENFORCE SETTLEMENT AGREEMENT - BY RYAN P SINEY ATTY FOR PLFF ------------------------------------------------------------------- 234 9/20/2011 PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR JUDGMENT ON THE PLEADINGS TO ENFORCE SETTLEMENT AGREEMENT - BY RYAN P SINEY ATTY FOR PLFF ------------------------------- ?35-242.4/12/2012 ORDER OF COURT - OPINION - DATED 04/12/12 - IN RE- PLFFS MOTION FOR JUDGMENT ON THE PLEADINGS AND TO ENFORCE SETTLEMENT AGREEMENT - BEFORE GUIDO J AND EBERT J - THE MOTION IS GRANTED AND JUDGMENT IN THE AMOUNT OF $11,500.00 PLUS REASONABLE ATTYS FEES AND COSTS IS ENTERED IN PLFFS FAVOR AND AGAINST DEFT - BY THE COURT M L EBERT JR J - COPIES MAILED 04/12/12 ---------------------- ;q35/14/2012 ORDER OF COURT DATED 05-14-2012 - APPELLANT FILE A CONCISE STATEMENT - M L EBERT JR J - COPIES MAILED 05-14-2012 ------------------------------------------------------------------- 21414-ltn5/14/2012 NOTICE OF APPEAL - ALLAN J OPSITNICK-ATTY-FOR-DEFT-MICROBYTES INC-- 2qf-ISO5/17/2012 SUPERIOR-COURT-OF-PA-NOTICE-OF-APPEAL DOCKETING-TO-#-890-MDA-2012-- ASI-254 6/04/2012 CONCISE STATEMENT - BY ALLAN J OPSITNICK ATTY FOR DEFT ------------------------------------------------------------------- 155'1576/12/2012 IN RE OPINION PURSUANT TO PA RAP 1925A - DATED 6-11-12 - BY THE COURT M L EBERT JR J - COPIES MAILED 6-12-12 ------------------------------------------------------------------- 6/12/2012 NOTICE OF DOCKET ENTRIES MAILED TO ALLAN J OPSITNICK ESQ AND RYAN P SINEY ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beg Bal Pmts/Ad ***** End Bal ******************************** ******** ****** ************************** COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 23.50 23.50 .00 REINSTATE COMPL 10.00 10.00 .00 REINSTATE COMPL 10.00 10.00 .00 APPEAL HIGH CT 57.00 57.00 .00 ------------------------ ------------ 169.00 169.00 .00 ******************************************************************************** 2010-02823 XPERT TECE BOGIES INC (vs) MICROSYTES Reference No..: Case Type ..... : COMPLAINT Judgment..... .00 Judge Assigned: EBERT M L JR Disposed Desc.: ------------ Case Comments ------------- Filed........ . Time. ... . . Execution Date Jury Trial.... Disposed Date. Higher Crt 1.: Higher Crt 2.: 4/28/2010 10:40 0/00/0000 0/00/0000 890 MDA 2012 * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof, I here unto set MY hwW and the WI of Uw Court Jat Carl" Pa. n E .20 Thb ?S._?y Praftrw?&y ti ?p?dc 1 CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Superior Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of Pennsylvania The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: XPERT TECHNOLOGIES, INC. ?OA12L. xt In SVWor Vs. JUN 14 z01z MICROBYTES, INC. MIDDLE 2010-2823 CIVIL TERM 890 MDA 2012 The documents comprising the record have been numbered from No. 1 to 257, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted tot Appellate ourt is 6/12/12. avi D. Buell Prothonotary Alma Kostjere ac, Deputy An additional cony of this certificate is enclosed Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title JUN 15 Z01Z MIS J.S78022-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 XPERT TECHNOLOGIES, INC IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee V. MICROBYTES, INC. Appellant, No. 8900 MDAA12'Z r tuj =0 u7r- r, Appeal from the Order Entered April 12, 2012 -.4 Z; In the Court of Common Pleas of Cumberland County !Z:z Civil Division at No(s): 2010-2823 ,01 BEFORE: FORD ELLIOTT, P.I.E., PANELLA, I., and ALLEN, J. MEMORANDUM BY PANELLA, J. FILED MARCH 05, 2013 Appellant, MicroBytes, Inc., appeals from the order granting judgment on the pleadings to Appellee, Xpert Technologies, Inc., entered on April 12, 2012, by the Honorable Edward E. Guido, Court of Common Pleas of Cumberland County. After careful review, we affirm. The factual background of this case is largely undisputed. On January 2, 2009, the parties entered into a Supplier Agreement whereby Xpert would supply technical service personnel candidates to MicroBytes. The purpose of the Supplier Agreement was to allow MicroBytes to provide services to MicroBytes's clients. In essence, Xpert was a subcontractor to MicroBytes, and MicroBytes was contracted by a third party. Pursuant to the Supplier Agreement, Xpert supplied a consultant, Badari Mallireddy, to MicroBytes for a project undertaken by MicroBytes's client, U.S. Steel. Mallireddy was then J.S78022-12 to provide consulting services to U.S. Steel, while Xpert paid Mallireddy's hourly wages, fees and expenses. Xpert would then bill MicroBytes an hourly rate based upon the hours reported by Mallireddy. Mallireddy provided all the consulting services requested by U.S. Steel, Xpert paid Mallireddy's wages, expenses and fees, and Xpert sent invoices to MicroBytes on February 3, March 3, April 8, April 15, and May 18, 2009. However, MicroBytes never paid on Xpert's invoices. As a result, Xpert filed a breach of contract suit against MicroBytes on April 28, 2010. Shortly thereafter, the parties entered into a settlement agreement. Under the agreement, MicroBytes was to pay $12,000.00 to Xpert in return for a release on all claims contained in the complaint. This sum was to be "payable in twenty four (24) monthly installments of five hundred dollars ($500.00) each." The settlement agreement also referenced an Installment Promissory Note that was to be executed concurrently with the settlement agreement, and be fully incorporated into the settlement agreement. An authorized agent of MicroBytes executed the settlement agreement, but not the Installment Promissory Note. Furthermore, MicroBytes made only one payment of $500.00 on November 15, 2010. Consequently, Xpert filed a motion to amend its complaint to include a count for breach of the settlement agreement on February 3, 2011. After MicroBytes filed an answer with new matter, Xpert moved for judgment on 2 J.S78022-12 the pleadings. The trial court ultimately granted Xpert's motion, and this timely appeal followed. On appeal, MicroBytes purports to raise three issues for our review: 1. Did the lower court abuse its discretion and/or commit an error of law when it incorporated the terms of an unsigned Installment Promissory Note into a signed Settlement Agreement and Mutual Release? 2. Did the lower court abuse its discretion and/or commit an error of law when it found that Defendant's New Matter failed to state material issues of fact? 3. Did the lower court abuse its discretion and/or commit an error of law when granted [sic] Judgment on the Pleadings? Apppellant's Brief, at 4. As an initial matter, we note that MicroBytes provides no argument in support of issue 3; it is therefore waived. See Pa.R.A.P., Rule 2119(a); Umbefina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011). Turning to the issues preserved on appeal, MicroBytes is appealing from the entry of judgment on the pleadings. In reviewing a trial court's grant of a motion for judgment on the pleadings, our scope of review is plenary. See Vetter v. Fun Footwear Co., 668 A.2d 529, 531 (Pa. Super. 1995) (en banc). "A motion for judgment on the pleadings is similar to a demurrer. It may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law." Citicorp N. Am. v. Thornton, 707 A.2d 536, 538 (Pa. Super. 1998). 3 w I.S78022-12 In determining whether there are disputed issues of fact, we must confine the scope of our consideration to "the pleadings and documents properly attached thereto." DeSantis v. Prothero, 916 A.2d 671, 673 (Pa. Super. 2007) (citing Lewis v. Erie Ins. Exch., 753 A.2d 839, 842 (Pa. Super. 2000)). Accordingly, ""[w]e must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted." Lewis, 753 A.2d at 842. No factual material outside the pleadings may be considered in determining whether there is an action under the law. See Bensalem Twp. Sch. Dist. v. Commonwealth, 518 Pa. 581, 586, 544 A.2d 1318, 1321 (1988). A court should only grant judgment on the pleadings if "the moving party's right to succeed is certain and the case is so free from doubt that trial would clearly be a fruitless exercise." Lewis, 753 A.2d at 842. We should determine whether the trial court's grant of the motion for judgment on the pleadings "was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go the jury." Id. Thus, if disputed facts exist that should properly go to the jury, the decision to grant judgment on the pleadings should be reversed. In this case, the trial court concluded that the undisputed facts established that MicroBytes had breached the settlement agreement and 4 J.578022-12 therefore granted judgment on the pleadings. MicroBytes first contends that the trial court erred in incorporating the language contained in the unexecuted note referenced by the settlement agreement. MicroBytes's argument is based upon an implicit assumption that the settlement agreement itself, stripped of the note, would permit the payment of a lump sum at the end of 24 months. We conclude that this implicit assumption is incorrect; the note is ultimately irrelevant, as the settlement agreement itself contains language sufficient to conclude that MicroBytes has breached the agreement. The interpretation of a contract is a question of law, for which our scope of review is plenary and our standard of review is de novo. TruSery Corp. v. Motgan's Tool & Supply Co., Inc., 39 A.2d 293, 258 (Pa. 2012). "In construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished." Id. To give effect to the intent of the parties, we must start with the language used by the parties in the written contract. See Szymanski v. Brace, 987 A.2d 717, 722 (Pa. Super. 2009), appeal denied, 606 Pa. 688, 997 A.2d 1179 (2010). Generally, courts will not imply a contract that differs from the one to which the parties explicitly consented. See Kmart of Pennsylvania,, L.P. v. M.D. Mall Associates, LLC, 959 A.2d 939, 944 (Pa. 5 IS78022-12 Super. 2008), appeal denied, 602 Pa. 667, 980 A.2d 609 (2008). We are not to assume that the language of the contract was chosen carelessly or in ignorance of its meaning. See id. Where the language of the contract is clear and unambiguous, a court is required to give effect to that language. Prudential Property and Casualty Ins. Co. v. Sartno,, 588 Pa. 205, 212, 903 A.2d 1170, 1174 (2006). Contractual language is ambiguous "if it is reasonably susceptible of different constructions and capable of being understood in more than one sense." Hutchison v. Sunbeam Coal Co., 513 Pa. 192, 201, 519 A.2d 385, 390 (1986). "This is not a question to be resolved in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts." Madison Constr. Co. v. Harleysville Mut. Zns. Co., 557 Pa. 595, 606, 735 A.2d 100, 106 (1999). Paragraph 2 of the settlement agreement, entitled "Payment by MicroBytes to Xpert" states that MicroBytes "shall pay [$12,000.00] ... payable in twenty four (24) monthly installments of five hundred dollars ($500.00) each." While the unexecuted note is even more specific regarding the timing of the $500.00 payments, this clause is more than sufficient to defeat MicroBytes's proffered defense that it is was entitled to pay a lump sum of $12,000.00 at the end of 24 months. There is no reasonable construction of the language in the settlement agreement that supports 6 I.S78022-12 MicroBytes's position. Indeed, a plain reading of the language leaves only one possibility: that MicroBytes was required to make $500.00 payments every month for 24 months. Accordingly, we conclude that MicroBytes's first issue on appeal merits no relief. In its second and final preserved issue, MicroBytes argues that the trial court erred in concluding that MicroBytes did not raise any disputed issues of material fact in its New Matter. However, the first three allegations in MicroBytes's New Matter are relevant only to the underlying Supplier Agreement. For example, MicroBytes alleges Malinreddy had not been paid on time by Xpert. While this claim might raise a valid defense to Xpert's claim that MicroBytes had breached the Supplier Agreement, it is irrelevant to Xpert's cause of action based upon a breach of the settlement agreement. The only duty imposed upon Xpert by the settlement agreement was the surrender of all claims arising from the original complaint. In contrast, the remaining allegations in MicroBytes's new matter are all in the manner of summary legal conclusions, lacking any attempt at alleging specific factual support for the conclusions. Such pleadings are insufficient to raise a legal defense. See, e.g., American Rock Mechanics, Inc, v. N. Abbonizio Contractors, Inc., 887 A.2d 322, 324 (Pa. Super. 2005). Accordingly, MicroBytes's second and final preserved argument on appeal merits no relief. 7 r J.578022-12 As none of MicroBytes's arguments on appeal merit relief, we affirm the trial court's order granting judgment on the pleadings. Order affirmed. Jurisdiction relinquished. Judgment Entered. Deputy rothonotary Date: March 5,;,201 8 spuperior Court of j)ennop1bania Karen Reid Bramble",Esq. Pennsylvania Judicial Center Prothonotary Middle District P.O.Box 62435 Mary A.Graybill,Esq. 601 Commonwealth Avenue,Suite 1600 Deputy Prothonotary Harrisburg,PA 17106-2435 (717)772-1294 www.superior.court.state.pa.us CERTIFICATE OF REMITTALIREMAND OF RECORD TO: David D. Buell Prothonotary RE: Xpert Tech. v. Microbytes, Inc. 890 MDA 2012 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 2010-2823 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part June 15, 2012 1 RemandfRemittal Date: 04/12/2013 ORIGINAL RECIPIENT ONLY-Please acknowledge receipt by signing,dating,and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, klaM aA44 CA s4Zta� ryl Graybill, Esq. Deputy Prothonotary /vsI C:-- cz) Enclosure Uz ZZ MCO M cc: The Honorable Edward E. Guido, Judge == 0 Allan Joseph Opsitnick, Esq. Ryan P. Siney, Esq. CD C-') > 1y ` Xpert Tech. v. Microbytes, Inc. 890 MDA 2012 Letter to: Buell, David D. Acknowledgement of Certificate of RemittaVRemand of Record(to be returned): Signature Date Printed Name IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA XPERT TECHNOLOGIES, INC., Plaintiff vs. No. 10-2823 MICROBYTES, INC., - Defendant -<> tL) CERTIFICATE OF SERVICE 12 `0 " FILED ON BEHALF OF: Microbytes, Inc., Defendant COUNSEL OF RECORD FOR THIS PARTY: Allan J. Opsitnick PA I.D. No. 28126 Opsitnick and Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, Pennsylvania 15219 412.391.3299 aopsitnick@opsitnickslaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA XPERT TECHNOLOGIES, INC., Plaintiff V. No. 10-2823 MICROBYTES,INC., Defendant CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of DEFENDANT'S ANSWERS TO INTERROGATORIES IN AID OF EXECUTION was sent by Ordinary Mail and Email to the following party on the 17th day of July, 2013: Ryan P. Siney, Esq. Tucker Arensberg 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 rsiney@tuckerlaw.com Date: July 17, 2013 0-- fA ]an J. Op itni PA I.D. N .: 2 26 Opsitnick ' Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 412.391.3299 aopsitnick @opsitnickslaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA XPERT TECHNOLOGIES,INC., Plaintiff vs. No. 10-2823 ' MCD Prn MICROBYTES, INC., -�, �-- Defendant r-= -o =C) CERTIFICATE OF SERVICE FILED ON BEHALF OF: Microbytes, Inc., Defendant COUNSEL OF RECORD FOR THIS PARTY: Allan J. Opsitnick PA I.D. No. 28126 Opsitnick and Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, Pennsylvania 15219 412.391.3299 aopsitnick@opsitnickslaw.com 5 , ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA XPERT TECHNOLOGIES, INC., Plaintiff V. No. 10-2823 MICROBYTES, INC., Defendant CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of DEFENDANT'S AMENDED ANSWERS TO INTERROGATORIES IN AID OF EXECUTION was sent by Ordinary Mail and Email to the following party on the 29th day of August, 2013: Ryan P. Siney, Esq. Tucker Arensberg 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 rsiney@tuckerlaw.com Date: August 29, 2013 Aan J.Ud nick PA I.D. 28126 Opsitnic Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 412.391.3299 aopsitnick@opsitnickslaw.com XPERT TECHNOLOGIES, INC., : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, • v. : No. 10-2823 • -c MICROBYTES, INC., r r,, r, Defendant • -< G - c C) CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff, Xpert Technologies, Inc. certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is south to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Respectfully submitted, TUCKER ARE E , P.C. � • Dated: November 26, 2013 By: Ry P. Siney, I.D. #209190 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Fax: (717) 232-6802 Attorneys for Plaintiff H BGDB:140410-1 028305-157530 CERTIFICATE OF SERVICE I, Ryan P. Siney, Esquire, of the law firm of Tucker Arensberg, P.C., hereby certify that I served a true and correct copy of the foregoing Certificate Prerequisite to Service of a Subpoena Pursuant to Rule 4009.22 on this date by electronic mail, addressed as follows: Allan J. Opsitnick, Esquire Opsitnick&Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Attorney for Defendant TUCKER ARENSB %G, P.C. Ader Dated: November 26, 2013 By: Ryan P. Siney, I.D. #209190 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Fax: (717) 232-6802 Attorneys for Plaintiff �, � �.� ,�,���� ..— ,��,:mss ,- .� � � - F LE COPY TUCKER ARENSBERG y@ yan P.Siney rsine tuckerlaw.com Attorneys October 3, 2013 Via First Class Mail Allan J. Opsitnick 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Re: Xpert Technologies, Inc. v. Microbytes, Inc. Cumberland County Court of Common Pleas, Docket No.: 10-2823 Our File No. 028305-157530 Dear Allan: Enclosed is Plaintiffs Notice of Intent to Serve Subpoena on John R. Matschner Company in the above-referenced action. Please advise whether you have any objections, and if not, whether or not you will waive the twenty (20) day notice period. Thank you for your attention to this matter. Very truly yours, TU R ARENSBERG, P Rya . Siney RPS/smo Enclosure cc: Xpert Technologies, Inc. (via email) H B G D B:139084-1 028305-157530 Tucker Arensberg,P.C. 2 Lemoyne Drive Suite 200 Lemoyne,PA 17043 p.717.234.4121 f.717.232.6802 www.tuckerlaw.com 1500 One PPG Place Pittsburgh, PA 15222 p.412.566.1212 f.412.594.5619 XPERT TECHNOLOGIES, INC•, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. : No. 10-2823 • MICROBYTES, INC•, Defendant NOTICE OF INTENT TO SERVICE SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. TUCKER ARENSBERG, P.C. Dated: October 3,2013 By Ry. '. Siney, I.D. #209190 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717)234-4121 Attorneys for Plaintiff HBGDB:139075-1 028305-157530 CERTIFICATE OF SERVICE I, Ryan P. Siney, Esquire, of the law firm of Tucker Arensberg, P.C., hereby certify that I served a true and correct copy of the foregoing Notice Of Intent To Service Subpoena To Produce Documents Or Things For Discovery Pursuant To Rule 4009.21 this date by regular first class mail, addressed as follows: Allan J. Opsitnick, Esquire 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Attorney for Defendant TUCKER ARENSBERG, . Dated: October 3, 2013 By: „Age_Ry./P. Siney, I.D. #209190 2 L-moyne Drive, Suite 200 Lemoyne,PA 17043 Telephone: (717) 234-4121 Attorneys for Plaintiff COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Xpert Technologies, Inc. Plaintiff : File No. 10—2 8 2 3 VS. Microbytes, Inc. Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: John R. Matschner Company (Name of Person or Entity) Within twenty(20)days after service of this subpoena,you are ordered by the court to produce the following documents or things: See attached addendum at Tucker Arensberg, P.C. 2 Lemoyne Drive, Suite 200 , Lemoyne PA (Address) 17 0 43 You may deliver or mail legible copies of the documents or produce things requested by this subpoena,together with the certificate of compliance,to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty(20)days after its service,the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Ryan P. Siney ADDRESS: 'ducker ArenshPrq, P.C. 2 Lemoyne Drive, Suite 200 T,PmoyP, PA 17043 TELEPHONE: (7 1 7) 2'i 4—41 21 SUPREME COURT ID# 209190 ATTORNEY FOR: Plaintiff BY THE CO • : • Prothonotary,Civil Division Date: -� !/ �� 41/ „00 Seal of 'e ourt Deputy Addendum to Subpoena All accounting records, financial statements, tax returns, bank statements, profit and loss statements, balance sheets, and all other documents evidencing the assets, income, expenses, accounts payable, accounts receivable, transfers of assets and financial condition of Microbytes, Inc. and Microbytes, LLC from January 1, 2009 through the date of your response. HBGDB:139074-1 028305-157530 • XPERT TECHNOLOGIES, INC., Plaintiff, v. : No. 10-2823 MICROBYTES, INC., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 -4 -ri rri -17 rf-7 C) -n C) --n C_) • As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff, Xpert Technologies, Inc. certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Dated: August 22, 2014 By: HBGDB:145651-1 028305-157530 Respectfully submitted, TU i ARENSBERG, P.C. Rya . Siney, I.D. #20919 2 Lemoyne Drive, Suite 2 Lemoyne, PA 17043 Telephone: (717) 234-4121 Fax: (717) 232-6802 Attorneys for Plaintiff UCKER _ARENSBERG August 1, 2014 Ryan P. Siney Attorneys rsiney@tuckerlaw.com Via First Class Mail Allan J. Opsitnick, Esquire Opsitnick & Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Re: Xpert Technologies, Inc. v. Microbytes, Inc. Cumberland County Court of Common Pleas, Docket No.: 10-2823 Our File No. 028305-157530 Dear Allan: Enclosed are Plaintiff's Notices of Intent to Serve Subpoenas on John R. Matschner Company, Saga Information Systems, LLC, Sensez Media Technologies, LLC and System Design & Integration Technologies, LLC in the above -referenced action. Please advise whether you have any objections, and if not, whether or not you will waive the twenty (20) day notice period. Thank you for your attention to this matter. Very truly yours, TU R ARENSBERG, P.C. Ryan P. Siney RPS/mbl Enclosure cc: Xpert Technologies, Inc. (via email) H BG D B:145318-1 028305-157530 Tucker Arensberg, P.C. 2 Lemoyne Drive Suite 200 Lemoyne, PA 17043 p. 717.234.4121 f. 717.232.6802 www.tuckerlaw.com 1500 One PPG Place Pittsburgh, PA 15222 p. 412.566.1212 f. 412.594.5619 U.S. POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT PROVIDE FOR INSI. 028305-157530 Received From: Ryan P. Siney, Esquire Tucker Arensberg, P.C. 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 One piece of ordinary / 028305-157530 Allan J. Opsitnick, Esquire Opsitnick & Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 .• O\ ,gO;'713R — Is • 33 PS Form 3817, January 2001 Xi m )(PERT TECHNOLOGIES, INC., : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. : No. 10-2823 MICROBYTES, INC., Defendant NOTICE OF INTENT TO SERVICE SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Dated: August 1, 2014 By HBGDB:145317-1 028305-157530 TUCKER ARENSBERG, P.C. Rya 1P. Siney, I.D. #209190 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Attorneys for Plaintiff Xpert Technologies, Inc. VS. Microbytes, Inc. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Plaintiff File No. 10-2823 Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Sensez Media Technologies, LLC (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: See attached Exhibit "A" at Tucker Arensberg, P.C., 2 Lemoyne Drive, Suite 200, Lemoyne, PA 17043 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Ryan P. Siney, Esquire ADDRESS: Tucker Arensberg, P.C. 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 TELEPHONE: (717) 234-4121 SUPREME COURT ID # 209190 ATTORNEY FOR: Plaintiff Date: Seal of the Court BY THE COUR • Prothonotary, Civil Division Exhibit "A" to Subpoena 1. All contracts, invoices, order forms, correspondence, documents or other agreements which evidence, concern or relate to any arrangement, transaction, relationship, affiliation or payments between or among Sensez Media Technologies, LLC and Jawad Mahmood, Microbytes, Inc. or Microbytes, LLC. 2. All documents evidencing, relating to or concerning any purchase, sale, conveyance or other transfer of assets, whether tangible or intangible, between or among Sensez Media Technologies, LLC and Jawad Mahmood, Microbytes, Inc. or Microbytes, LLC. 3. All documents evidencing any payments made to or received from Microbytes, Inc. or Microbytes, LLC, including but not limited to cancelled checks, deposit slips and bank statements. 4. All documents evidencing, relating to or concerning the equity or ownership interest, employment status, position, role, function or authority of Jawad Mahmood at Sensez Media Technologies, LLC. HBGDB:145323-1 028305-157530 CERTIFICATE OF SERVICE I, Ryan P. Siney, Esquire, of the law firm of Tucker Arensberg, P.C., hereby certify that I served a true and correct copy of the foregoing Notice Of Intent To Service Subpoena To Produce Documents Or Things For Discovery Pursuant To Rule 4009.21 this date by regular first class mail, addressed as follows: Allan J. Opsitnick, Esquire 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Attorney for Defendant Dated: August 1, 2014 By: TUCKER ARENSBERG, P.C. Ryan P. Siney, I.D. #20919:0 2 Lemoyne Drive, Suite 0 Lemoyne, PA 17043 Telephone: (717) 234-4121 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Ryan P. Siney, Esquire, of the law firm of Tucker Arensberg, P.C., hereby certify that I served a true and correct copy of the foregoing Certificate Prerequisite to Service of a Subpoena Pursuant to Rule 4009.22 via first class mail, postage pre -paid, to: Allan J. Opsitnick, Esquire Opsitnick & Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Attorney for Defendant Dated: August 22, 2014 By: HBGDB:145651-1 028305-157530 TUCK R ARENSB. RG P.C. Ryan . Siney, I.D. #20919 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Fax: (717) 232-6802 Attorneys for Plaintiff XPERT TECHNOLOGIES, INC., : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. : No. 10-2823 MICROBYTES, INC., Defendant CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff, Xpert Technologies, Inc. certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Dated: August 22, 2014 By: HBGDB:145651-1 028305-157530 Respectfully submitted, TUC4 ARENSBERG, P.C. Ryan P. Siney, I.D. #209190 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Fax: (717) 232-6802 Attorneys for Plaintiff f-7-7 UCKER ARENSBERG Attorneys August 1, 2014 Via First Class Mail Allan J. Opsitnick, Esquire Opsitnick & Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Ryan P. Siney rsiney@tuckerlaw.com Re: Xpert Technologies, Inc. v. Microbytes, Inc. Cumberland County Court of Common Pleas, Docket No.: 10-2823 Our File No. 028305-157530 Dear Allan: Enclosed are Plaintiff's Notices of Intent to Serve Subpoenas on John R. Matschner Company, Saga Information Systems, LLC, Sensez Media Technologies, LLC and System Design & Integration Technologies, LLC in the above -referenced action. Please advise whether you have any objections, and if not, whether or not you will waive the twenty (20) day notice period. Thank you for your attention to this matter. Very truly yours, T R ARENSBERG, P.C. tom. Ryan P. Siney RPS/mbl Enclosure cc: Xpert Technologies, Inc. (via email) H B G D B:145318-1 028305-157530 Tucker Arensberg, P.C. 2 Lemoyne Drive Suite 200 Lemoyne, PA 17043 p. 717.234.4121 f. 717.232.6802 www.tuckerlaw.com 1500 One PPG Place Pittsburgh, PA 15222 p. 412.566.1212 f. 412.594.5619 U.S. POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT PROVIDE FOR INS ^ 028305-157530 Received From: Ryan P. Siney, Esquire Tucker Arensberg, P.C. 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 One piece of ordinary 028305-157530 Allan J. Opsitnick, Esquire Opsitnick & Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 7573gamma rn 3 .j D �~ J� 2 •-,.00 to r- -11. -� 0 a a> rn - o PS Form 3817, January 2001 XPERT TECHNOLOGIES, INC., : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. : No. 10-2823 MICROBYTES, INC., Defendant NOTICE OF INTENT TO SERVICE SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Dated: August 1, 2014 By HBGDB:145317-1 028305-157530 TUCKER ARENSBERG, P.C. Ryan P. Siney, I.D. #209196 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Attorneys for Plaintiff COMMONWEALTH OF PENNSYLVANIA COUNTY OF"CUMBERLAND Xpert Technologies, Inc. VS. Microbytes, Inc. Plaintiff File No. 10-2823 Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Saga Information Systems, LLC (Name of Person, or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: See attached Exhibit "A" at Tucker Arensberg, P.C., 2 Lemoyne Drive, Suite 200, Lemoyne, PA 17043 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Ryan P. Siney, Esquire ADDRESS: Tucker Arensberg, P.C. 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 TELEPHONE: (717) 234-4121 SUPREME COURT ID # 209190 ATTORNEY FOR: Plaintiff Date: 70-9 IN BY THE COUR(� Prothonotary, Civil Division Seal of the Court CDeputy Exhibit "A" to Subpoena 1. All contracts, invoices, order forms, correspondence, documents or other agreements which evidence, concern or relate to any arrangement, transaction, relationship, affiliation or payments between or among Saga Information Systems, LLC and Jawad Mahmood, Microbytes, Inc. or Microbytes, LLC. 2. All documents evidencing, relating to or concerning any purchase, sale, conveyance or other transfer of assets, whether tangible or intangible, between or among Saga Information Systems, LLC and Jawad Mahmood, Microbytes, Inc. or Microbytes, LLC. 3. All documents evidencing any payments made to or received from Microbytes, Inc. or Microbytes, LLC, including but not limited to cancelled checks, deposit slips and bank statements. 4. All documents evidencing, relating to or concerning the equity or ownership interest, employment status, position, role, function or authority of Jawad Mahmood at Saga Information Systems, LLC. HBGDB:145323-1 028305-157530 CERTIFICATE OF SERVICE I, Ryan P. Siney, Esquire, of the law firm of Tucker Arensberg, P.C., hereby certify that I served a true and correct copy of the foregoing Notice Of Intent To Service Subpoena To Produce Documents Or Things For Discovery Pursuant To Rule 4009.21 this date by regular first class mail, addressed as follows: Allan J. Opsitnick, Esquire 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Attorney for Defendant Dated: August 1, 2014 By: TUCKER ARENSBERG, P.C. Ry. P. Siney, LD. #20919 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Ryan P. Siney, Esquire, of the law firm of Tucker Arensberg, P.C., hereby certify that I served a true and correct copy of the foregoing Certificate Prerequisite to Service of a Subpoena Pursuant to Rule 4009.22 via first class mail, postage pre -paid, to: Allan J. Opsitnick, Esquire Opsitnick & Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Attorney for Defendant Dated: August 22, 2014 By: HBGDB:145651-1 028305-157530 TUCKER ARENSBERG, P.C. Ry.' P. Siney, I.D. #2091 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Fax: (717) 232-6802 Attorneys for Plaintiff XPERT TECHNOLOGIES, INC., : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. : No. 10-2823 MICROBYTES, INC., Defendant CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff, Xpert Technologies, Inc. certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Dated: August 22, 2014 By: HBGDB:145651-1 028305-157530 Respectfully submitted, TUCKER ARENSBERG, P.C. Ry P. Siney, I.D. #20 90 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Fax: (717) 232-6802 Attorneys for Plaintiff TUCKER ARENSBERG Attorneys August 1, 2014 Via First Class Mail Allan J. Opsitnick, Esquire Opsitnick & Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Ryan P. Siney rsiney@tuckerlaw.com Re: Xpert Technologies, Inc. v. Microbytes, Inc. Cumberland County Court of Common Pleas, Docket No.: 10-2823 Our File No. 028305-157530 Dear Allan: Enclosed are Plaintiffs Notices of Intent to Serve Subpoenas on John R. Matschner Company, Saga Information Systems, LLC, Sensez Media Technologies, LLC and System Design & Integration Technologies, LLC in the above -referenced action. Please advise whether you have any objections, and if not, whether or not you will waive the twenty (20) day notice period. Thank you for your attention to this matter. Very truly yours, TU_.,., .R ARENSBERG, P. Ryan P. Siney RPS/mbl Enclosure cc: Xpert Technologies, Inc. (via email) H B G D B:145318-1 028305-157530 Tucker Arensberg, P.C. 2 Lemoyne Drive Suite 200 Lemoyne, PA 17043 p. 717.234.4121 f. 717.232.6802 www.tuckerlaw.com 1500 One PPG Place Pittsburgh, PA 15222 p. 412.566.1212 f. 412.594.5619 U.S. POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT PROVIDE FOR INS1 028305-157530 Received From: Ryan P. Siney, Esquire Tucker Arensberg, P.C. 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 One piece of ordinary t — cs 24;13. 028305-157530 0 Allan J. Opsitnick, Esquire Opsitnick & Associates 564 Forbes Avenue, Suite 1301 � Pittsburgh, PA 15219 PS Form 3817, January 2001 XPERT TECHNOLOGIES, INC., : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. : No. 10-2823 MICROBYTES, INC., Defendant NOTICE OF INTENT TO SERVICE SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Dated: August 1, 2014 By HBGDB:145317-1 028305-157530 TUCKER ARENSBERG, P.C. Ry P. P. Siney, I.D. #209190.. 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Attorneys for Plaintiff COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Xpert Technologies, Inc. VS. Microbytes, Inc. Plaintiff . File No. 10-2823 Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: John R. Matschner & Company (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: See attached Exhibit "A" at Tucker Arensberg, P.C., 2 Lemoyne Drive, Suite 200, Lemoyne, PA 17043 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Ryan P. Siney, Esquire ADDRES S: Tucker Arenberg, P.C. 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 TELEPHONE: (717) 234-4121 SUPREME COURT ID # 209190 ATTORNEY FOR: Plaintiff Date: (.-ct \t� Sea of the Court BY THE COURT: Prothonotary, Civil Division Exhibit "A" to Subpoena 1. To the extent not previously provided to counsel for Xpert Technologies, Inc., all accounting records, financial statements, tax returns, bank statements, profit and loss statements, balance sheets, and all other documents evidencing the assets, income, expenses, accounts payable, accounts receivable, transfers of assets and financial condition of Jawad Mahmood, Microbytes, Inc. and Microbytes, LLC from January 1, 2009 through the date of your response. 2. All documents evidencing, relating to or concerning the financial institution(s) at which Jawahad Mahmood, Microbytes, Inc. and Microbytes, LLC have or had any deposit accounts from January 1, 2010 through the date of your response, including but not limited to correspondence with such financial institution(s), bank statements, deposit slips and cancelled checks. 3. All documents evidencing, relating to or concerning any entity, of which Jawad Mahmood is a shareholder or member and dated from January 1, 2010 to the date of your response. 4. All documents evidencing, relating to or concerning any purchase, sale, conveyance or other transfer of assets, whether tangible or intangible, by, to or from Jawad Mahmood, Microbytes, Inc. and Microbytes, LLC. HBGDB:145323-1 028305-157530 CERTIFICATE OF SERVICE I, Ryan P. Siney, Esquire, of the law firm of Tucker Arensberg, P.C., hereby certify that I served a true and correct copy of the foregoing Certificate Prerequisite to Service of a Subpoena Pursuant to Rule 4009.22 via first class mail, postage pre -paid, to: Allan J. Opsitnick, Esquire Opsitnick & Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Attorney for Defendant Dated: August 22, 2014 By: HBGDB:145651-1 028305-157530 TUCKER ARENSBERG, P.C. Ryan P. Siney, I.D. #209 2 Lemoyne Drive, Suite Lemoyne, PA 17043 Telephone: (717) 234-4121 Fax: (717) 232-6802 Attorneys for Plaintiff XPERT TECHNOLOGIES, INC., : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, (-) = =, --1 V. : No. 10-2823 -ID ---- ni u) ..c- za.• Z 71 - r— MICROBYTES, INC., wr- rws) .706 --4c, Defendant r— 2: < t=3 -0 7.-z -il ;r. 74.-- CD C--.: > 5-: r>;) --1' CERTIFICATE PREREOUISITE TO SERVICE ....‹ c...) ,.., OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff, Xpert Technologies, Inc. certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Dated: August 22, 2014 By: HBGDB:145651-1 028305-157530 Respectfully submitted, TUCKER ARENSBERG, P.C. Ryan P. Siney, I.D. #2091 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Fax: (717) 232-6802 Attorneys for Plaintiff TUCKER .ANSBERG August 1, 2014 Ryan P. Siney Attorneys rsiney@tuckerlaw.com Via First Class Mail Allan J. Opsitnick, Esquire Opsitnick & Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Re: Xpert Technologies, Inc. v. Microbytes, Inc. Cumberland County Court of Common Pleas, Docket No.: 10-2823 Our File No. 028305-157530 Dear Allan: Enclosed are Plaintiff's Notices of Intent to Serve Subpoenas on John R. Matschner Company, Saga Information Systems, LLC, Sensez Media Technologies, LLC and System Design & Integration Technologies, LLC in the above -referenced action. Please advise whether you have any objections, and if not, whether or not you will waive the twenty (20) day notice period. Thank you for your attention to this matter. Very truly yours, TU R ARENSBERG, P.C. Ryan P. Siney RPS/mbl Enclosure cc: Xpert Technologies, Inc. (via email) H B G D 8:145318-1 028305-157530 Tucker Arensberg, P.C. 2 Lemoyne Drive Suite 200 Lemoyne, PA 17043 p. 717.234.4121 f. 717.232.6802 www.tuckerlaw.com 1500 One PPG Place Pittsburgh, PA 15222 p. 412.566.1212 f. 412.594.5619 U.S. POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL DOES NOT PROVIDE FOR INSI --' • 028305-157530 Received From: Ryan P. Siney, Esquire Tucker Arensberg, P.C. 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 One piece of ordinary 028305-157530 Allan J. Opsitnick, Esquire Opsitnick & Associates '1C=)" — --I • 564 Forbes Avenue, Suite 1301 co -0 G-) m Pittsburgh, PA 15219 ;•.' ,/'' , \,, / \ \ I ,i•-i.:I1 \ (-11 • ,14,. • ,--- , .-c.s.jik.,,, ,- \ •=, 1.0 0 3)C7-43 (/) 0 \ Ell 0.".'.1 ',.< • '-'416-.—...--•••--_,m2.--.4-0 —.._'- -J#. %' ZIT •-••,--4:30 PS Form 3817, January 2001 XPERT TECHNOLOGIES, INC., : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. : No. 10-2823 MICROBYTES, INC., Defendant NOTICE OF INTENT TO SERVICE SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Dated: August 1, 2014 By HBGDB :145317-1 0283 05-15753 0 TUCKER ARENSBERG, P.C. Ryan . Siney, I.D. #209190 1 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Attorneys for Plaintiff COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND • Xpert Technologies, tnc. VS. Microbytes, Inc. Plaintiff File No. 10-2823 Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: System Design & Integration Technologies, LLC (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: See attached Exhibit "A" at Tucker Arensberg, P.C., 2 Lemoyne Drive, Suite 200, Lemoyne, PA 17043 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Ryan P. Siney, Esquire ADDRESS: Tucker Arensberg, P.C. 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 TELEPHONE: (717) 234-4121 . SUPREME COURT ID # 209190 ATTORNEY FOR: Plaintiff Date: Seal of the Court BY THE COURT: Prothonotary, Civil Division ty Exhibit "A" to Subpoena 1. All contracts, invoices, order forms, correspondence, documents or other agreements which evidence, concern or relate to any arrangement, transaction, relationship, affiliation or payments between or among System Design & Integration Technologies, LLC and Microbytes, Inc. or Microbytes, LLC. 2. All documents evidencing, relating to or concerning any purchase, sale, conveyance or other transfer of assets, whether tangible or intangible, between or among System Design & .Integration Technologies, LLC and Jawad Mahmood, Microbytes, Inc. or Microbytes, LLC. 3. All documents evidencing any payments made to or received from Microbytes, Inc. or Microbytes, LLC, including but not limited to cancelled checks, deposit slips and bank statements. 4. All documents evidencing, relating to or concerning the equity or ownership interest, employment status, position, role, function or authority of Jawad Mahmood at System Design & Integration Technologies, LLC. HBGDB:145323-1 028305-157530 CERTIFICATE OF SERVICE I, Ryan P. Siney, Esquire, of the law firm of Tucker Arensberg, P.C., hereby certify that I served a true and correct copy of the foregoing Notice Of Intent To Service Subpoena To Produce Documents Or Things For Discovery Pursuant To Rule 4009.21 this date by regular first class mail, addressed as follows: Allan J. Opsitnick, Esquire 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Attorney for Defendant Dated: August 1, 2014 By: TUCKER ARENSBERG, P.C. RyaP. Siney, I.D. #209190 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Ryan P. Siney, Esquire, of the law firm of Tucker Arensberg, P.C., hereby certify that I served a true and correct copy of the foregoing Certificate Prerequisite to Service of a Subpoena Pursuant to Rule 4009.22 via first class mail, postage pre -paid, to: Allan J. Opsitnick, Esquire Opsitnick & Associates 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 Attorney for Defendant Dated: August 22, 2014 By: HBGDB:145651-1 028305-157530 TUC R AREN G ' .C. • Ry . Siney, I.D. #209190 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Fax: (717) 232-6802 Attorneys for Plaintiff