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Home My WebLink About01-0712 SHERIFF'S RETURN CASE NO: 2001-00712 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MID-STATE PRODUCTS CORP VS BACKENSTOES II ET AL REGULAR DAWN KELL , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE BACKENSTOES II D/B/A J & D AUTO SERVICES DEFENDANT at 0015:07 HOURS, on the at 95 ENOLA ROAD ENOLA, PA 17025 JOHN BACKENSTOES, II a true and attested copy of COMPLAINT Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the 7th day of February , 2001 by handing to & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 9.30 Affidavit .00 Surcharge 10.00 .00 37.30 Sworn and Subscribed to before me this ?~- day of honorary So Answers R. Thomas Kline 02/08/200 POWELL, ROGERS & SPEAKS Deputy Sheriff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MID-STATE PRODUCTS CORP., Plaintiff VS. CIVIL ACTION - LAW NO. 01-00712 JOHN BACKENSTOES II d/b/a J & D AUTOMQTIVE, : t7S' [?~o/~ ~-O&:~- Defendant P Cn, E w-mr oF EX CUnO TO THE PROTHONOTARY: Please issue a Writ of Execution in the above matter directed to the Sheriff of Cumberland County against Defendant(s) and against Garnishee(s) in the aforementioned action and index this Writ against the Defendant, John Backenstoes I1 d/b/a J & D Automotive and as a lis pendens against the real estate of the Defendant. The amount due the Plaintiff is as follows: Principal Additional costs to be added thus far Subtotal $10,061.50 $ 411.30 $10.472.80 P.O. Box 61107 Harrisburg, PA 17106-1107 (717) 896-2850 Attorney for Mid-State Products Corp. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MID-STATE PRODUCTS CORP., Plaintiff vs. JOHN BACKENSTOES II d/b/a J & D AUTOMOTIVE, Defendant CIVIL ACTION - NO. 01-00712 LAW PRAECIPE FOR ENTRY OF JUDGMENT TO THE PROTHONOTARY: Kindly enter judgment in the above captioned cause of action against the Defendant, John Backenstoes II d/b/a J & D Automotive, in the amount of $10,061.50 plus all costs related to this action, for the failure to answer Plaintiff's Complaint. I certify that a true and correct copy of the notice of intent to take default judgment was sent February 28, 2001 to the defendant at 95 Enola Road, Enola, PA 17025. DATE: Respectfully submitted, ~. Chad Moore, Es~ire Legal Dept. of Powell, Rogers & Speaks P.O. Box 61107 Harrisburg, PA 17106-1107 (717) 896-2850 Identification #: 76660 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MID-STATE PRODUCTS CORP., Plaintiff JOHN BACKENSTOES II d/b/a J & D Automotive, Defendant CIVIL ACTION - LAW No. 01-00712 TO: JOHN BACKENSTOES II d/b/a J & D AUTOMOTIVE Date of Notice: FEBRUARY 28, 2001 IMPORT~IT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Legal Department of Powell, Rogers & Speaks P.O. Box 61107 Harrisburg, PA 17106 (717) 896-2850 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MID-STATE PRODUCTS CORP., Plaintiff vs. JOHN BACKENSTOES II d/b/a J & D AUTOMOTIVE, Defendant CIVIL ACTION - LAW NO. 01-00712 AFFIDAVIT OF NON-MILITARY SERVICE J. Chad Moore, Esquire, attorney for Plaintiff, Mid-State Products Corp., being duly sworn by law does depose and say as follows: After reasonable investigation and to the best of my knowledge, information and belief, Defendant, John Backenstoes II d/b/a J & D Automotive, is not now, nor was he within the last three (3) months in the military service of the United States of America within the purview of Soldiers and Sailors Act of 1940, as amended. , Esquire Attorney for the Plaintiff Legal Dept. of Powell, Rogers & Speaks P.O. Box 61107 Harrisburg, PA 17106-1107 (717) 896-2850 Identification #: 76660 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MID-STATE PRODUCTS CORP., Plaintiff vs. JOHN BACKENSTOES II d/b/a J & D AUTOMOTIVE, Defendant CIVIL ACTION - LAW NO. 01-00712 JOHN BACKENSTOES II d/b/a J & D AUTOMOTIVE: Pursuant to Rule 236 of the Pennsylvania Supreme Court you are hereby notified that on ~D~ /& , 2001, the following judgment was entered against you in the amount of $ /~ ~3~ ~ _~ , plus costs, in the above captioned case. DATE: -~//(~ /f'-'~' ~ro~t~o~o~;~ry ~ -~-- I hereby certify that the name and address of the proper person or entity to receive this notice is. JOHN BACKENSTOES II d/b/a J & D AUTOMOTIVE 95 ENOLA ROAD ENOLA, PA 17025 PETER J. RUSSO, ESQUIRE PA Supn~me Court ID: 72897 5010 East Trindle Road, Suite 200 Meehanicsburg, PA 17050 (717) 591-1755 Attorney for Defendant MID-STATE PRODUCTS CORP., Plaintiff JOHN BACKENSTOES H d/bls J & D AUTO SERVICES Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO: 01-2014 CML TERM : : CML ACTION - LAW _, ._ MEMORANDUM OF LAW IN SUPPORT OF PETITION TO OPEN JUDGMENT I. STATEMENT OF FACTS This action arises out of a claim for the breach of an alleged lease agreement. During the month of April, 2000 Plaintiff and Defendant discussed the possibility of entering into a lease agreement for a tire changer and a wheel balaneer for Defendant's automotive business. The equipment was delivered before the lease documents ever arrived. When documents arrived, the terms were not acceptable. When the revised lease was sent to Defendant, he informed PlaintifFs salesman that he was unable to obtain financing, so that they could not enter into the agreement. Defendant's grandfather had purchased equipment from another supplier. Defendant requested that Plaintiff remove their equipment. Plaintiff refused to take back the equipment, although no agreement was ever finalized for its lease or purchase. 'Fne aforementioned action was subsequently instituted by Plaintiff against Mr. Backenstoes. Mr. Backenstoes forwarded the Complaint served upon him to Attorney Phil Zulli. Mr. Backenstoes had previously been represented by Mr. Zulli, and believed that Mr. Zulli was representing him on this matter. No action was taken by Mr. Zulli, and subsequently a default judgment was filed against Defendant. II. ARGUMENT A party seeking relief from a default judgment must establish three elements: (1) the petition was timely filed; (2) a reasonable explanation or excuse for the default; and (3) the petitioner had a meritorious defense to the underlying claim. Flyrm v. Casa Di Bertacchi Corp., 449 Pa. Super. 606, 674 A.2d 1099 (1996). A Petition to Open a Default Judgment is an appeal to the equitable powers of the court. Allegheny Hydro No. 1 v. American Line Builders, Inc., 722 A.2d 189 (Pa. Super.1998), (citing N.H. Weidner, Inc. v. Berman, 310 Pa. Super. 590, 456 A.2d 1377, 1379 (Pa. Super. 1983)). Without question, in many cases where [the Court has] found that one of the three requirements for opening a judgment was not met [the Court has] stopped without considering the arguments made with regard to the other two. [Citations omitted.] It is ditTtcult, however, to reconcile this approach with the many other cases that emphasize the equitable nature of the decision whether to grant a Petition to Open, and the importance of balancing the prejudice to the sides... The question is, can a court make an "equitable determination" of what is "reasonable under the circumstances" without considering ail of the circumstances of the particular ease? We think not... [W]here some showing has been made with regard to each part of the test, a court should not blinder itself and examine each part as though it were a water-tight compartment, to be evaluated in isolation from other aspects of the case. Instead the court should consider each part in the light of ail of the circumstances and equities of the case. Only in that way can a chancellor act as a court of conscience. Provident Credit Corp, v. Young, 300 Pa. Super. 117, 446 A.2d 257,264 (1982) (en banc). The purpose of rules authorizing entry of a default judgment is to prevent a dilatory defendant from obstructing a Plaintiff's efforts to establish a claim; the rules are not primarily intended to provide a Plaintiff with gaining a judgment without the difficulties arising from the litigation on the merits of the claim. Tronzo v. Equitable Gas Co., 269 Pa. Super. 392, 410 A.2d 313 (1979). Kennedy v. Black, 492 Pa. Super. 397, 424 A.2d 1250 (1981). Therefore, "a standard of liberaiity should be applied in deciding a petition to Open a Default Judgment," Medunic v. Lederer, 533 F.2d 892 (3rd Cir. 1976), because equitable principles favor allowing parties to defend causes on the merits, Commerciai Bankina Com. V. Miller, 90 B.R. 762 (Bkrtcy. E.D. Pa 1988)." Duckson v. Wee Wheelers, Inc., 423 Pa. Super. 251,620 A.2d 1206 (1993). In the case at bar, Defendant John B, Backenstoes, is promptly filing a Petition to open the March 14, 2001 Default Judgment entered against him. Additionally, Defendant offers a meritorious defense as is set forth supra. Finaily, Defendant's failure to respond to Plaintiff's Complaint is reasonably explained by the fact that the Defendant reasonably believed that he was represented by counsel, when in fact he was not, The delay in this case was not due to a deliberate decision not to defend the claim or to prejudice Plaintiff's attempt to establish his claim, but due to his justifiable belief that his legal interests were being protected by his attorney. Accordingly, the equities of the case show that Defendant had a reasonable excuse for the default. As stated by Justice Musmanno in Good v Sworob, 420 Pa. 435,218 A.2d 240 (1966): A legal controversy is a battle. It may not be bloody, no bodies carried offthe field of action, but in all essentials it is a determined conflict in which each side seeks to gain victory over the other. However, as in warfare, the contending parties in a law battle often seek to resolve their differences without going into the final hand-to-hand encounter when there may not be left enough for either side to claim victory or glory. During these armistices in war or in law, neither side is to fire a shot or clandestinely move troops. Id._.=. 218 A.2d at 241. Justice Musmanno went on to hold that a default being taken under this "armistice" was "manifestly unfair" and should be opened. Id._.~. At 242. For the foregoing reasons, Defendant, John B. Backenstoes, respectfully requests this Honorable Court to grant their Petition to Strike and/or Open the Default Judgment entered on March 14, 2001. Date: Respectfully submitted, Peter J. Kusso 5010 Trindle Road Mechanicsburg, PA 17050 (717) 591-1755 MID-STATE PRODUCTS CORP.,: Plaintiff JOHN BACKENSTOES H d/b/a J & D AUTO SERVICES, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-712 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter P, usso, hereby certif~ Lhat I am on this day serving a copy of the foregoing document upon the person (s) and in the manner indicated below: Service by First-Class Mail, Postage Prepaid, and Addressed as follows: J. Chad Moore, Esquire Powell, Rodgers & Speaks P.O. Box 61107 Harrisburg, PA 17106 Peter 3. Russo MID-STATE PRODUCTS CORP.,: _, Plaintiff Ye JOHN BACKENSTOES H d/b/a J & D AUTO SERVICES, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-712 CML TERM CML ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER AND NOW, COMES, the Defendant, John Backenstoes II, by and tl~ough his counsel, Peter J. Russo, Esquire, and avers the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. Plaintiff sent a sales representative to Defendant's business and at that time a discussion was held regarding the replacement of the older tire changer and wheel balancer being utilized by the Defendant. 5. Denied. After reasonable investigation, Defendant is without sufficient facts to establish the factual accuracy of the facts contained in this avem~ent. 6. Denied. Defendant never expressed an immediate need since he was already using the fire changer and wheel balancer that was present in his shop. At all times, Defendant expressed to Plaintiff's sales representative that his acceptance of the new equipment would be contingem on the lease terms. 7. Admitted in part and denied in part. It is admitted that Defendant stated that if the price was reasonable and he could afford the payment, Defendant would purchase the equipment. To the contrary, the equipment was exg', emely over priced in the market, 8. Admitted. 9. Denied. Defendant never made any promises to pay Plaintiff for the tire changer and wheel baiancer. No invoice was ever presented by Plaintiff to Defendant for the tire changer and wheel baiancer prior to or at its delivery. 10. Admitted in part and denied in part. It is admitted that Defendant used the fire changer and wheel balancer but once the lease terms were delivered, Defendant immediately stopped using the tire changer and wheel balancer and asked Plaintiff to pick the item back up. By way of further response, Defendant used the tire changer and wheel balancer for a total of approximately one month. 11. Denied. Approximately four weeks passed before Plaintiffprovided a lease agreement. 12. Denied. Defendant never asserted that he sent the paperwork back to the Plaintiff and Defendant ceased using the tire changer and wheel baianeer once the lease was reviewed. 13. Denied. Upon receipt of the lease, Defendant contacted Plaintiff and advised them to remove the tire changer and wheel baianeer since the payment terms were outrageous. Plaintiff advised Defendant that there would be a handling charge and a restocking fee but someone would be out to remove the tire changer and wheel baiancer. No one ever arrived to remove the tire changer and wheel balancer so Defendant moved Plaintiff's tire changer and wheel baianeer to the back of the shop. 14. Denied. The avemnents contained in this paragraph are conclusions of law which require no response. In the event any portion of this paragraph is deemed factual, it is denied that Plaintiff was entitled to payment since there was no agreed lease terms. 15. Admitted in part and denied in part. It is admitted that prior to July, 2000, Defendant did business with Plaintiff and Plaintiff's sales representative would re-stock parts he felt Defendant required. After July, 2000, Defendant ceased all dealings with Plaintiff. 14. Admitted. 17. Denied. The averrments contained in this paragraph are conclusions of law which require no response. In the event any portion of this paragraph is deemed factual, it is denied that Defendant owes any money to Plaintiff for the aforementioned parts as Defendant completed return slips for each item.. By way of further response, in the past, Plaintiff aiways accepted Defendant's return slips as a matter of course. 18. Denied. The accounting is a document which speaks for itself and any interpretational gloss placed thereon by the Pla'mtiff is strictly denied. 19. Denied. The averrments contained in this paragraph are conclusions of law which require no response. In the event any portion of this paragraph is deemed factual, it is denied that Defendant owes any money to Plaintiff as Defendant completed return slips for each part itemized by Plaintiff and the Defendant never accepted the tire changer and wheel balancer. 20. Denied. Defendant has not been unjustly enriched by Plaintiffs failures and omissions. By way of further response, Defendant, on several occasions asked for the removal of the tire changer and wheel baiancer and Plaintiff failed. Defendant did not use the tire changer and wheel baiancer after the lease terms were disclosed to him. WI-IERI~FORE, Defendants respectfully request this Honorable Court to enter j~dgment in favor of the Defendant and against Plaintiff in the amount of ail expenses and costs incurred by Defendant in defense of this matter. NEW R4ATTER 21. The parties never agreed to a price for the tire changer and wheel balancer. 22. The Plaintiff decided to deliver the item without disclosing any terms relative to price, term or interest. 23. The Plaintiff decided to deliver the item without an agreement on any terms relative to price, term or interest. 24. Had an agreement been formed with terms such as price, term or interest, Defendant would have term'mated discussions at that point. 25. When the tire changer and wheel baiancer was delivered no invoice was provided. 26. When the tire changer and wheel baiancer was delivered no signature was required. 27. Has Defendant received an invoice for the tire changer and wheel balancer upon its delivery, Defendant would have rejected the delivery of the same. 28. Defendant asked Plaintiff' s sales representative on several occasions to have the tire changer and wheel baiancer removed. 29. Defendant was and remains willing to pay a reasonable and standard handling and/or re- stocking fee. 30. Plaintiff has failed to set a claim upon which release may be granted. 31. Plaintiff has failed to join an indispensable party. 32. PlaintifT has failed to rnitigate their damages, if any. 33. Plaintiff may be barred in whole or in part by the applicable Statute of Limitafmns. 34. Plaintiff may be barred in whole or in p~a;t by the principle of res judieata. 35. Plaintiff's claim may be barred by the estoppel, waiver and latches. 36. Plaintiff's claim may be barred by the Principles of Accord and Satisfacfmn. 37. Plaintiff's claim may be barred by the doctrine of payment. 38. Plaintiff voluntarily assumed the risk o£the facts set forth in this Complaint and accordingly his claim is barred. 39. Plaintiff's claim may be barred and limited by the doctrines of comparative negligence and/or assumption of the risk. 40. No conduct of the Defendant or agent of the Answering Defendant resulted in or is the proximate cause of any injury or damage sustained by the Plaintiff. 4 I. Any injuries and/or damages claimed by the Plaintiff, if proven, were caused by persons other than Answering Defendant and not within the control of Answering Defendant. 42. At all material times hereto Answering Defendant acted reasonably, appropriately and caused no injuries or damage to Plaintiff. 43. Any harm suffered by the Plaintiff arose out o£their own non-performance o£th¢ essential obligations. Date: Respectfully submitted, Peter J. Russo MID-STATE PRODUCTS CORP.,: Plaintiff JOHN BACKENSTOES H d/b/a J & D AUTO SERVICES, Defendant NO. 01-712 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED VERIFICATION I, JOHN BACKENSTOES II, veri~ ~ahat the statements made in the foregoing docurnem are true and correct, I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to umwom falsification to authorities. DATE tJohn Backenstoes II PETER J. RUSSO, ESQUIRE PA Supomae Court ID: 72897 5010 East Trindle Road, Suite 200 Mechanicsburg, PA 17050 (717) 591-1755 JUN 0 Attorney for Defendant MID-STATE PRODUCTS CORP., Plaintiff JOHN BACKENSTOES II d/b/a J & D AUTO SERVICES Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 01~712 CIVIL TERM CML ACTION - LAW TEMPORARY ORDER RESTRAINING SALE OF PROPERTY AND NOW, the Petitioner having filed a petition and verified that immediate and irreparable loss and damage may result to him before the matter can be heard on motion, upon consideration of the Defendant's attached petition, the Plaintiff, Mid-State Products Corp., and the Sheriff of Cumberland County are hereby enjoined bom all acts or actions against the Petitioner, from transferring, encumbering, selling and disposing of the property or any interest that the Petitioner may have in said property as scheduled on June 11, 2001, until further order of this Court. Distribution: Peter J. Russo, Esquire J. Chad Moore, Esquire BY THE COURT: /kttoCe¥ ~or De~enda~ PETER & RUSSO, ESQUIRE PA Supreme Court ID: 72897 5010 East Trindle Road, Suite 200 Mechanicsburg, PA 17050 (717) 591-1755 MID-STATE PRODUCTS CORP., Plaintiff JOHN BACKENSTOES II d/b/a J & D AUTO SERVICES Defendant Attorney for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 01-712 CIVIL TERM CML ACTION - LAW PETITION OF DEFENDANT TO STAY SHERIFF'S SALE PENDING DECISION ON HIS PETITION TO STRIKE AND/OR OPEN DEFAULT JUDGMENT TO THE HONORABLE, THE JUDGES OF THE SAID COURT: The petition of Defendant, John Backenstoes d/b/a $ & D Auto Services, respectfully represents: 1. John Backenstoes is the owner of certain inventory and equipment located at 95 Enola Road, Enola, PA 17025. 2. On March 14, 2001, a default judgrnent was entered in favor of Plaintiff Mid-State Products, Corp. 3. As a result of the default judgment a writ of execution was issued by this Honorable Court in the above-captioned matter setting Sheriff's sale on Jtme 11, 2001. 4. On May 24, 2001, Defendant's attorney filed a Petition to Strike And/Or Open the Default Judl~nent. 5. The matter has not yet been heard on motion. 6. If the Sheriff Sale proceeds before the Defendant's Petition to Strike And/Or Open the Default Judgment is decided, the Defendant will suffer irreparable damage and loss. W}IEREFORE, Defendant respectfully requests that this Honorable Court stay the Sheriff's Sale of the property of John Backenstoes. Peter J. Russo 5010 Trindle Road Mechanicsburg, PA 17050 (717) 591-1755 MID-STATE PRODUCTS: CORP., Plaintiff JOHN BACKENSTOES, II, d/b/a J & D AUTO SERVICES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-0712 CIVIL TERM IN RE: DEFENDANT'S PETITION TO STRIKE AND/OR OPEN DEFAULT JUDGMENT ORDER OF COURT AND NOW, this 31 st day of July, 2001, upon agreement of counsel, the argument previously scheduled in the above matter for August 16, 2001, is rescheduled to Wednesday, August 29, 2001, at 2:00 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. J. Chad Moore, Esq. P.O. Box 61107 Harrisburg, PA 17106 Attorney for Plaintiff Peter J. Russo, Esq. 5010 Trindle Road Mechanicsburg, PA 17055 Attorney for Defendant BY THE COURT, esley Oler, J .r:-,-~, J. irc MID-STATE PRODUCTS CORP., Plaintiff JOHN BACKENSTOES, II, d/b/a J & D AUTO SERVICES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-0712 CIVIL TERM ORDER OF COURT AND NOW, this 31st day of May, 2001, upon consideration of Defendant's Petition To Strike and/or Open Default Judgment, it is ordered that: 1. A Rule is issued upon Plaintiff to show cause why Defendant is not entitled to the relief requested; 2. Plaintiff shall file an answer to the motion within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Thursday, August 16, 2001, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Briefs shall be submitted at least seven days prior to argument. BY THE COURT, esleyOle J. ' J. Chad Moore, Esq. P.O. Box 61107 Harrisburg, PA 17106 Attorney for Plaintiff Peter J. Russo, Esq. 5010 Trindle Road Mechanicsburg, PA 17050 Attorney for Defendant irc PETER J. RUSSO, ESQUIRE PA Supreme Court ID: 72897 5010 East Trindle Road, Suite 200 Mechanicsburg, PA 17050 (717) 591-1755 Attomey for Defendant MID-STATE PRODUCTS CORP., Plaintiff JOHN BACKENSTOES II d/b/a J & D AUTO SERVICES Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO: 01-2014 CIVIL TERM : : CIVIL ACTION - LAW : : : : PETITION OF DEFENDANT, JOHN BACKENSTOES d/b/a J & D AUTO SERVICES, TO STRIKE AND/OR OPEN DEFAULT JUDGMENT Defendant, John Backenstoes d/b/a J & D Auto Services, by and through his attorney, Peter J. Russo, Esquire, hereby petition this Honorable Court to strike and/or open the default judgment entered against him in the above-captioned action, and aver in support thereof the following: 1. In their Civil Complaint, Plaintiff Mid-State Products, Corp., alleges a breach of a contract for the lease of equipment, a tire changer and wheel balancer. A true and correct copy of Plaintiff's Complaint is attached hereto as Exhibit "A." 2. Plaintiff Mid-State Products, Corp., also alleges a failure on the part of Defendant to pay for parts that were provided to Defendant. 3. No lease agreement or invoice was ever signed or entered into by the parties. 4. The parties failed to even agree on simple terms such as price, payment amount, term or interest rate. 5. Notwithstanding the lack of a written agreement, Plaintiff delivered the tire changer and wheel balancer to Defendant and only later provided the lease terms. 6. Once Defendant reviewed the lease terms he tried repeatedly to return the equipment to Plaintiff. 7. Plaintiff refused to accept the tire changer and wheel baiancer and the instant action was commenced. 8. Upon receiving the Complaint, Defendant forwarded ail documents relating to this matter to attorney, Phil Zulli, reasonably believing that Attorney Zulli was handling the matter, only to learn later that he was not. 9. On March 14, 2001, a default judgment was entered in favor of Plaintiff Mid-State Products, Corp. A true and correct copy of the time-stamped Praecipe for Entry of Judgment is attached hereto as Exhibit "B." 10. Defendant, John Backenstoes d/b/a J & D Auto Services, has a meritorious defense, as is set forth in the Proposed Answer to Plaintiff's Complaint, a true and correct copy of which is attached hereto and marked as Exhibit "C," and for that reason the Default Judgment taken by Plaintiff must be opened. 42 Pa. R.C.P. {}237.3(10). 11. Further, Defendant's Petition to Open Default Judgment should be granted because this petition is timely filed, a meritorious defense exists to the ailegations raised in Plaintiff's Complaint, and Defendant's failure to respond to the Plaintiff's Complaint is reasonably explained and excused. WHEREFORE, Defendant respectfully requests that this Honorable Court strike and/or open the Default Judgment against him on March 14, 2001. Peter J. Russo 5010 Trindle Road Mechanicsburg, PA 17050 (717) 591-1755 MID-STATE PRODUCTS CORP.,: ,. Plaintiff JOHN BACKENSTOES II d/b/a J & D AUTO SERVICES, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-712 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter Russo, hereby certify that I am on this day serving a copy of the foregoing document upon the person (s) and in the manner indicated below: Service by First-Class Mail, Postage Prepaid, and Addressed as follows: J. Chad Moore, Esquire Powell, Rodgers & Speaks P.O. Box 61107 Harrisburg, PA 17106 Peter J. Russo MID-STATE PRODUCTS CORP.,: Plaintiff JOHN BACKENSTOES II dB0/a J & D AUTO SERVICES, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-712 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Lawyers Referral Service 2 Liberty Ave. Carlisle, PA 17013 (717) 249-3166 TO: MID-STATE PRODUCTS CORP. C/O J. CHAD MOORE, ESQUIRE You ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. PETER J. RUSSO MID-STATE PRODUCTS CORP.,: .. Plaintiff JOHN BACKENSTOES II d/b/a J & D AUTO SERVICES, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-712 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER AND NOW, COMES, the Defendant, John Backenstoes II, by and through his counsel, Peter J. Russo, Esquire, and avers the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. Plaintiff sent a sales representative to Defendant's business and at that time a discussion was held regarding the replacement of the older tire changer and wheel balancer being utilized by the Defendant. 5. Denied. After reasonable investigation, Defendant is without sufficient facts to establish the facVaal accuracy of the facts contained in this avemaem. 6. Denied. Defendant never expressed an immediate need since he was already using the tire changer and wheel balancer that was present in his shop. At all times, Defendant expressed to Plaintiff's sales representative that his acceptance of the new equipment would be contingent on the lease terms. 7. Admitted in part and denied in part. It is admitted that Defendant stated that if the price was reasonable and he could afford the payment, Defendant would purchase the equipment. To the contrary, the equipment was extremely over priced in the market. 8. Admitted. 9. Denied. Defendant never made any promises to pay Plaintiff for the tire changer and wheel balancer. No invoice was ever presented by Plaintiff to Defendant for the tire changer and wheel balancer prior to or at its delivery. 10. Admitted in part and denied in pa~. It is admitted that Defendant used the tire changer and wheel balancer but once the lease terms were delivered, Defendant immediately stopped using the tire changer and wheel balancer and asked Plaintiffto pick the item back up. By way of further response, Defendant used the tire changer and wheel balancer for a total of approximately one month. 11. Denied. Approximately four weeks passed before Plaintiffprovided a lease agreement. 12. Denied. Defendant never asserted that he sent the paperwork back to the Plaintiff and Defendant ceased using the tire changer and wheel balancer once the lease was reviewed. 13. Denied. Upon receipt of the lease, Defendant contacted Plaintiff and advised them to remove the tire changer and wheel balancer since the payment terms were outrageous. Plaintiff advised Defendant that there would be a handling charge and a restocking fee but someone would be out to remove the tire changer and wheel balancer. No one ever arrived to remove the tire changer and wheel balancer so Defendant moved Plaintiff's tim changer and wheel balancer to the back of the shop. 14. Denied. The averl'ments contained in this paragraph are conclusions of law which require no response. In the event any portion of this paragraph is deemed factual, it is denied that Plaintiff was entitled to payment since there was no agreed lease terms. 15. Admitted in part and denied in part. It is admitted that prior to July, 2000, Defendant did business with Plaintiff and Plaintiff's sales representative would re-stock parts he felt Defendant required. After July, 2000, Defendant ceased ail dealings with Plaintiff. 16. Admitted. 17. Denied. The averrments contained in this paragraph are conclusions of law which require no response. In the event any portion of this paragraph is deemed factual, it is denied that Defendant owes any money to Plaintiff for the aforementioned parts as Defendant completed return slips for each item.. By way of further response, in the past, Plaintiff always accepted Defendant's return slips as a matter of course. 18. Denied. The accounting is a document which speaks for itself and any interpretational gloss placed thereon by the Plaintiff is strictly denied. 19. Denied. The avem~xents contained in this paragraph are conclusions of law which require no response. In the event any portion of this paragraph is deemed factual, it is denied that Defendant owes any money to Plaintiffas Defendant completed return slips for each part 'itemized by Plaintiff and the Defendant never accepted the tire changer and wheel balancer. 20. Denied. Defendant has not been unjUStlY enriched by Plaintiff's failures and omissions: By way of further response, Defendant, on several occasions asked for the removal of the tire Changer and wheel baiancer and Plaintiff failed. Defendant did not use the tire changer and wheel balancer after the lease terms were disclosed to him. WHEREFORE, Defendants respectfully request this Honorable Court to enter judgment in favor of the Defendant and against Plaintiff in the amount of all expenses and costs incurred by Defendant in defense of this matter. NEW MATTER 21. The parties never agreed to a price for the tire changer and wheel balancer. 22. The Plaintiff decided to deliver the item without disclosing any terms relative to price, term or interest. 23. The Plaintiff decided to deliver the item without an agreement on any terms relative to price, term or interest. 24. Had an agreement been formed with terms such as price, term or interest, Defendant would have terminated discussions at that P0im. When the tire changer and wheel baiancer was delivered no invoice was provided. 261 When the tire changer and wheel balancer was delivered no signature was required. 27; Has Defendant received an invbiCe for the tire changer and wheel balaneer upon its delivery, Defendant would have rejected the delivery of the same. 28. Defendant asked Plaintiff's sales representative on several occasions to have the tire changer and wheel balancer removed. 29. Defendant was and remains willing to pay a reasonable and standard handling and/or re- stocking fee. 30. Plaintiffhas failed to set a claim upon which release may be granted. 31. Plaintiffhas failed to join an indispensable party. 32. Plaintiffhas failed to mitigate their damages, if any. 33. Plaintiff may be barred in whole or in part by the applicable Statute of Limitations. 34. Plaintiffmay be barred in whole or in pgrt by the principle of res judicata. 35 Plaintiff's claim may be barred bY the estoppel, waiver and latches. Plaintiff's claim may be barred bY the Principles of Accord and Satisfaction. 37. Plaintiff's claim may be barred by the doctrine of paym?nt. 38. Plaintiffvoluntarily assumed the risk of the facts set forth in this Complaint and accordingly his claim is barred. 39. Plaintiff's claim may be barred and limited by the doctrines of comparative negligence and/or assumption of the risk. 40. No conduct of the Defendant or agent of the Answering Defendant resulted in or is the proximate cause of any injury or damage sustained by the Plaintiff. 41. Any injuries and/or damages claimed by the Plaimiff, if proven, were caused by persons other than Answering Defendant and not within the control of Answering Defendant. 42. At ail material times hereto Answering Defendant acted reasonably, appropriately and caused no injuries or damage to Plaintiff. 43. Any harm suffered by the Plaintiffarose out of their own non-performance of the essential obligations. Date: Respectfully submitted, Peter J. Russo MID-STATE PRODUCTS CORP.,: : Plaintiff JOHN BACKENSTOES II d/b/a J & D AUTO SERVICES, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-712 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED VERIFICATION I, JOHN BACKENSTOES II, verify that the statements made in the foregoing document are tree and correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. DATE ohn Backenstoes II MID-STATE PRODUCTS CORP.,: .. Plaintiff JOHN BACKENSTOES II d/b/a J & D AUTO SERVICES, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-712 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter Russo, hereby certify that I am on this day serving a copy of the foregoing document upon the person (s) and in the manner indicated below: Service by First-Class Mail, Postage Prepaid, and Addressed as follows: J. Chad Moore, Esquire Powell, Rodgers & Speaks P.O. Box 61107 Harrisburg, PA 17106 Peter J. Russo Date: J. CHAD MOORE, ESQ. Attorney ID #76660 P.O. Box 61107 Harrisburg, PA 17106-1107 (717) 896-2850 Attorney for Plaintiff MID-STATE PRODUCTS CORP., Plaintiff JOHN BACKENSTOES II d/b/a J & D AUTO SERVICES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-00712 ORDER AND NOW, this day of , 2001, it is ORDERED that Defendant's Petition to Strike and/or Open Default Judgment is DENIED. BY THE COURT: J. CHAD MOORE, ESQ. Attorney ID #76660 P.O. Box 61107 Harrisburg, PA 17106-1107 (717) 896-2850 Attorney for Plaintiff MID-STATE PRODUCTS CORP., Plaintiff JOHN BACKENSTOES II d/b/a J & D AUTO SERVICES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-00712 PLAINTIFF MID-STATE PRODUCTS CORP.~S ANSWER TO DEFENDANT'S PETITION TO STRIKE AND/OR OPEN DEFAULT JUDGMENT Plaintiff Mid-State Products Corp., by its undersigned counsel, answers Defendant's petition to strike and/or open default judgment as follows: 1. 2. 3. Admitted. Admitted. Admitted in part and denied in part. It is admitted that no lease agreement was ever executed by the Defendant but Paragraph 3 is denied insofar as it is meant to suggest that there was no agreement between the parties or that the Defendant made no promise to pay. 4. Denied. Defendant was aware of the price prior to delivery of the tire changer and wheel balancer and had promised to pay for said equipment outright if his lease was not approved. 5. Admitted insofar as Plaintiff delivered the tire changer and wheel balancer at Defendant's request prior to final approval by the leasing company, pursuant to Defendant's promise to pay and the prior business relationship between Plaintiff and Defendant. 6. Denied. To the contrary, Defendant repeatedly claimed, upon inquiry by Plaintiff, that his portion of the lease documents had been sent in to the leasing company while Defendant continued to use the equipment. 7. Admitted insofar as Plaintiff has declined to pick up the now-used tire changer and wheel balancer at Defendant's business. 8. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments in Paragraph 8. denied. 9. 10. Accordingly, said averments are Admitted. The averments of Paragraph 10 state conclusions of law to which no response is necessary. To the extent said averments are deemed factual in nature and a response is required, Paragraph 10 is denied. 11. The averments of Paragraph i1 state conclusions of law to which no response is necessary. To the extent said averments are deemed factual in nature and a response is required, Paragraph 11 is denied. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny Defendant's Petition to strike and/or open the Default Judgment. Respectfully submitted, ~/20/0~ ~re~, ~squire Date: ? ~ CER?~F~C~TE OF SERVICE The undersigned hereby certifies that he has this date caused a true and correct copy of the foregoing Answer to Defendant's Petition to Strike and/or Open Default Judgment to be served on the following by first-class mail, postage prepaid: Peter J. Russo, Esquire 5010 East Trindle Road, Mechanicsburg, PA 17050 Counsel for Defendant Date: Suite 200 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLANIA MID-STATE PRODUCTS CORP., Plaintiff vs. JOHN BACKENSTOES II d/b/a J & D AUTO SERVICES Defendant No: 01-2014 CIVIL TERM CIVIL ACTION LAW Deposition Taken by Date Place Before of: JOHN BACKENSTOES II : Defendant : August 9, 2001, 9:51 a.m. 5010 E. Trindle Road Mechanicsburg, Pennsylvania Ann M. Wetmore Reporter - Notary Public APPEARANCES: J. CHAD MOORE, ESQ. For Plaintiff PETER J. RUSSO, ESQ. For - Defendant FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717.236-0623 York 7/7-845-6418 PA 1-800-233-9327 INDEX WITNESS JOHN BACKENSTOES II By Mr. Russo By Mr. Moore Deposition Exhibit Number 4 EXHIBITS Letter to whom it may concern from John B. Backenstoes Letter to John B. from Ed Pavlovic, October 5, 2000 Backenstoes II dated 2 Examination 3, 32 16 Page 11 12 FfLIUS & McLUCAS REPORTING SERVICE, INC. Han'isburg 717~236-0623 York 717-$45.6415 PA 1-$00-233-9527 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 BY MR. Q. A. Q. A. Q. A. Q. A. Qo It counsel signing, hereby form of trial. 3 JOHN BACKENSTOES II, called as a witness, being duly sworn, testified as follows: EXAMINATION RUSSO: Your name and address? John B. Backenstoes II, 1284 Boiling Springs Road, Boiling Springs, PA 17007. Were you here for Ray's deposition where I gave him some instructions about the questions and answers and understanding them? Yes. Did you hear all of those instructions? Yes, I did. Do you understand them? Yes. Basically I'm goin9 to ask you some questions about the wheel changer. Tell me how the issue a wheel changer first came to J & D Automotive? F~LI~$ ~ McL~CAS ~PORTI'NG SER~CE, ~C. of STIPULATION iS hereby stipulated by and between for the respective parties that reading, sealing, certification and filing are waived; and all objections except as to the the question are reserved to the time of 1 A. 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q o a o Exam./Russo To the best of my memory, a year, but I remember we talking about my Coats wouldn't do mag wheels, Backenstoes 4 like Ray said it's been had a conversation 2020 tire changer I had aluminum wheels without destroying them. And Ray had said they did sell tire changers and balancers and I had asked Ray to look into leasin9 one because just starting the business I didn't have that kind of capital to dump down to buy $7,000 worth of equipment. Do you recall ever meeting a Rob Harvey? Memory wise, no, I don't remember it. I won't say he wasn't there, but I honestly don't remember Ray bringing him down. At any point was there a -- do you recall filling out a lease application? No, I didn't fill out a lease application. Do you recall at any point agreeing on a price for the wheel changer? I can't recall it. What discussion, if any, did you have regardin9 the interest rate or a term of the lease? Actually I didn't have a conversation on interest rates or the term of the lease. As Ray said, the equipment came, when the lease it was delivered. I had asked would be coming because I was F~Lt~S & McLUCAS REPORTING SER~C~ ~C. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 Q o Exam./Russo Backenstoes curious that the equipment came without the lease. And Ray said it will be lease did eventually come. I can't exactly how many days or equipment that the lease When you received the invoice? No. Ray had indicated the was provided to you. 5 me signing weeks after we got there. equipment was there and the tell you had the there an sales price and the payment Was there anybody else that you would have had to have gotten consent from to agree to purchase that equipment? On any big purchases I discussed that loaned me the money to start my wife because, you may think got to live with her. Okay. If I brought too much money out at sleep on the couch. Would this have been a big purchase? Yes. What do you define as a big purchase? Anything that costs more than what's in company checkbook. When the item was delivered, what F[LI~S & McLUCAS ~PORTING SER~C~ INC. it with the lady the business and it's funny, but I one shot, I the happened at ths Exam./Russo - Backenstoes 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point? When the tire changer and balancer were delivered it was off loaded on the truck. I asked the delivery man if I had to sign anything. He said, no. We did unpack it and hook it up and use it. How long did you use it for? One or two months most. I can as to when the other equipment And you said other equipment. did you seek get documentation showed up. At some point why the equipment sent in. And grandpa was paying for it for the lease of that equipment. I wasn't writing checks out for it up until when grandpa passed away a month or so ago and then I took over the payments of the lease. How much was the purchase of that additional equipment? Purchase price for a tire balancer, tire machine and an AC unit to do R12 134A was about $7,600 for all three units. And what caused you -- was there anything that caused you to get this equipment rather from Young's than retain the items you had gotten from FILIUS & McLHCAS ~PORT/NG S~CE, ~C. tO obtain additional equipment? My grandfather who I'm named after knew the gentleman that owns Young's Equipment and had got 1 2 A. 3 4 5 6 7 8 9 Q. 10 11 A. 12 13 14 15 16 17 18 19 Q. 20 21 A. 22 23 24 25 Exam./Russo Mid-State? The backer couldn't come Backenstoes 7 she's looking at two major hookups for sewer. Grandpa had stopped down at the shop, wanted to see what his grandson was doing. I discussed the equipment with him and he said, no, he says, I can do better for you. Within a few weeks this guy showed up with this other equipment. At some point did you learn about the terms of this lease or purchase of the Mid-State product? Yeah. Here, again, I don't remember how long it took, but when the lease papers got there I opened it up. I took it home. My wife, who is an accountant, and my backer went over it. And the backer read it and when she read that we had to sign a lease for two terms of the lease and that the buyout would be fair market value, she advised me at that time not even to sign the lease. What were the terms as you believe them to be of that lease? Memory, the first four years was $400 some odd cents a month with an $1,800 deposit. Then after the ~irst four terms were up, they wanted me to sign it again for another four years at half of what I was paying for the first four-year lease, FILIUS & McLUCAS ~POR~NG SER~CE, Ha~sbu~ 717-236-0623 York 717-~5-~18 PA 1-800-233-9327 up with the money because 1 2 3 4 5 Q. 6 7 A. 8 9 10 11 12 13 14 15 16 17 18 19 Q. 2O 21 A. 22 23 Q. 24 25 Q. Exam./RuSso then the buyout was fair market So, earlier today $30,600 plus fair Yeah. At what the point did you begin to remove the item? - Backenstoes 8 value. we calculated that amount. Does market value seem accurate? to ask Mid-State that equipment was equipment sent down, loaded there and when grandpa's ~- when the equipment grandpa bought and I had asked them about taking it back. And I had told them if I could get a loan prior to grandpa's lease equipment coming down that I would pay this off. But being that I haven't been in business two years, every place I went shot me down. Even the last place I had tried prior to coming here I got shot down because the business hasn't been up and running for two years. And when you say Bruce, are you speaking of Bruce Casher? I believe that's his last name. I only ever knew him as Bruce. This is the president of Mid-State Products? I believe so. What would you have done had you received an ~LIUS & McLUCAS ~PORTING ~R~CE, 1NC, Actually I had conversations with Bruce on the phone and it would be within the month or two that 1 2 A. 3 4 5 6 Q. 7 8 9 10 A. 11 Q. 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Exam./Russo - Backenstoes invoice with the tire machine? If I had received an invoice that needed paid for that amount, I wouldn't have left the man drop it off because I didn't have that kind of capital in the checking account at the time. There's some indication in the salesman's testimony which indicated a price was told to you that day, and that day being sometime in the spring of 2000. Do you recall that? Honestly I don't remember it. The tire changer is located where today? In a small bay inside Worley's garage -- Worley's building. To the best of your knowledge, is it still in operational condition? Yeah. It's dusty. It's got some dirt. Is it damaged in any way? Damages, no. It's got some scratches from use for a month or two. Does that machine have any type of use gauge like an hours clock or an item clock? No. I'm going to show you what we marked as Number 1. Can you identify what that is? That's the letter I had written and sent to FILIUS & McLUCAS ~PORT~G SER~C~ INC. Ha~sbu~ 71~236-0623 York ~8~-~18 PA 1-8~-233-~27 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 3 4 Exam./RusSo - Mid-State Products and that time was the handling the case attorney that was supposed for me. And by the time you wrote that letter, this lawsuit had been commenced, correct, or is that your belief? At the time I wrote this letter, Backenstoes 10 had courtesy copied who at to be at Mid-State. you what we marked as 3. that is? I hadn't received any certified letters from Mid-State. I had received letters that they wanted me to pay the bill for the tire machine and the stocks. So, am I correct that collection efforts had begun by the time you wrote that, but you had not seen the actual formal lawsuit that Mr. Moore filed? No. I had gotten letters from Bruce or whoever does their collectibles And I'm going to show Can you identify what That's a letter that I received back from Ed in response to my letter of asking them to remove their stocking items that are in the shop and the tire machine and the balancer. What's the date on that letter? September 1st, 2000. Now, you had an opportunity to see Number 2, whic~ was the refund authorizations. Correct? ~US & McLUCAS ~PORTING SER~C~ INC. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ao ' BY MR. Q. A. Q. Exam./Russo - Backenstoes ll As I was told, yes. These were filled out to return any items. Did Ed make any reference regarding his to reject them for an exchange on new items? No. The only correspondence I had at that time was the letter from Ed. Did he place any restrictions on what would be accepted? No. Did it not have to be in sellable condition? Yeah. (Deposition Exhibit ~4 marked for identification) RUSSO: I'm going to show you what we are marking as 4. Can you identify what that is? Yeah, that's a letter that Ed -- excuse me, not Ed -- Ray brought down to me from Mid-State and I had read it at the time he brought it to me. And I told him that this was probably sent by my grandfather because I sign everything John B. Backenstoes II and have most of my life. So, he sent this letter on your behalf. Is that accurate? A. Right. discretion F/L/US & McLUCA$ REPORTfNG SERVICE, INC. Harrlsburg 717-236~0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exam./Russo (Deposition identification) BY MR. RUSSO: Q. And in turn response to Q o ao Backenstoes Exhibit #5 marked for 12 the tire changer? No, but I realized and handling fee on anything you take back. That's just normal practice. And were you willing to pay that? Yes. Were you in any immediate -- well, let me strike F1LIU$ & McLHCA$ ~PORTING SER~CE, INC. there would be a restocking fee them wouldn't even take the application. Did you offer to pay any of the expenses that Mid-State may have had at that time with regard to I'll show you what is 5. Is this the that letter that was received? Actually reading this letter I don't think it's in response to that because this letter was sent before I sent my letter in asking them to remove their items. Okay. At the time that you requested the tire changer be removed, did you offer to pay any expenses with regard to the tire changer? I had offered to try to get a loan to pay for it. Like I said before, I had gotten shot down because I hadn't been in business for two years. Most of 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 3 4 A. Q o Exam./Russo - Backenstoes 13 that and say there's an allegation that you were in immediate need for a new tire changer. Can you tell me whether that's accurate? No. The immediate need wasn't stated. I just needed information on what it would cost to lease the tire machine since I knew I didn't have the capital to outright purchase At any time did you sign any any written document committing you to it. lease the purchase of this tire No. Can I ask you why you changer? Number 2 was filled out and sent requesting them to remove would have a list of what I had had filled out for Ray if I had using to send back. So, it was assumption that since authorization form, I for them so they knew what I had And what was your expectation? My expectation, especially after or contract or filled out Number 2? with the letter their items so that they and this is what I something I wasn't under my it was a return filled it out and sent it in in inventory. I got the letter, was that somebody was going to come down and make a determination whether the stuff was resellable Or not. FILIUS & McLU£AS REPOR~NG SER ~CE, ~C. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Q. 2 A. 3 4 Q. A. Exam./Russo - Backenstoes And if determined that it was resellable? They would take it back and I would have to pay a restocking fee, a percentage and a handling fee. 14 Had anybody ever come to No. What happened to plaintiff's look at the equipment? lawsuit that he Did you enjoy any type of attorney/client relationship with Mr. Zulli prior to this? Yes. He was handling a case for me with PennDOT. And what kind of case was that? FILIU$ & McLUCAS REPORTING SERVIrCE, irNC, Ha~dsburg 717~256-0623 York 717-845-6418 PA 1-800-2~3-9327 Mr. Worley introducing me to Phil and Phil said to get the information to him and I handed it to Mr. Worley who saw him on a weekly basis. filed? This one? (Indicating) Well, Phil Zulli, as I had said, was an attorney that was handling my case. I had handed this copy over to Mr, Worley who said he would deliver it to Phil because they go to some club in Harrisburg every Wednesday. I was under the assumption Phil had it up until when the Sheriff's Department come down to inventory my shop supply and equipment. And why were you under the belief that Mr. Zulli was going to be handling this? Because Mr, Zulli and I had discussed it through 1 A. 2 3 4 5 A. 6 Q. 7 A. 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 ao Exam./Russo - Backenstoes 15 That was a litigation over supposed fraudulent inspection of a vehicle. What did you do once the sheriff came to your house? Well, the sheriff came to the garage. To the garage. First reaction was horror, Then I talked to the sheriff. have time to get it paid off. I approached my wife over the phone as to pulling my retirement out and trying to get a loan to get this done before due date of the sheriff sale, at which point one of my clients, customers, I work on her car, had advised me retirement or to take a loan to recommended I come talk to And how much time do the time the sheriff time you came to see Three weeks maybe. then anger set in. He told me that you MR. RUSSO: Chad. MR. MOORE: MR. RUSSO: for you. I have nothing else for him, Okay. Mr. Moore may have some questions FILIUS & McLUCA$ REPORTING SERV[C~5, INC. Harrisb~,~ 717-236-0623 York 717~845.6418 PA 1-800~235-9527 yo~. you recall expired between came to your home and the me? a lady that not to take my pay this and 5 6 ? 8 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 1 2 BY 3 4 ao Exam./Moore Backenstoes EXAMINATION 16 the lease was coming, he had said the one lease company wouldn't work with us, they were trying another one. And at that point I had asked Ray, well, how long is this going to go, are they going to forget me or am I going to get hit here all at one shot that somebody is going to want seven grand? And Ray reassured me and which did happen, the lease did show up in the mail. I can't tell you what the company name was. I guess I'm not too good at this. I threw the lease away once we decided we couldn't afford the lease. Did you have any knowledge of why the terms of the lease were as you recall them? As I recall them as to how high they were, I assume that the big down payment and I don't know -- I don't know if Ray had told me or not, I would assume that the 1,800 down payment was because I was a fairly new business. The amount of the payment per month I don't know why that wa~ FILIUS & McL~CAS REPOR~NG SER~CE, INC. would, MR. MOORE: Regarding the lease for the equipment, how many leases did you -- do you know if there was more than one lease that was applied for? Ray had told me ~- when I had asked Ray about when 1 2 3 4 5 6 7 A. 9 10 11 19 13 14 15 16 17 19 20 21 22 23 24 25 Exam./Moore - Backenstoes 17 set at 400 or 400 and some odd dollars for the first four years and then half the second lease. That I don't know why that was set at that way, if that's what you are asking me. I don't know why the lease was set the way it was. Why did you reject the lease? I took the lease home. The lady, Donna Parks, who loaned me the money to start the business read the lease. She's the one that pointed out to me that I would have to sign the lease for a term of eight years and what the prices would be and there was a fair market buyout. She said it wasn't worth it because she has rental property, she deals with leases. So, at her and I did pursue money to pay for begrudging I didn't sign the lease avenues to try to borrow the it. check with any of the M&T, they won't most part until surprised me. I thought it loan. I didn't realize you two years. So, as you recall, the But as I said, and you can banks I deal with, including even take an application for the I'm in business two years, which was a small business had to be in business reason you ended up rejecting the lease was the fair market buyout? FILIUS & McLUCAS REPORTING SERVICE, INC, Hardsburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 A. 2 3 4 5 6 7 8 9 NO. sign a lease for four years at dollars, then have to sign the another four years at half the the end of that second Exam./Moore Backenstoes Mrs. Parks didn't like the idea of market value. She did some there's no tire machine and worth that kind of capital. needed the $1,800 down she give me the $1,800 down to And what's her name? Donna J. Parks, P-a~r-k-s. What's her relationship to 400 and lease again amount, and 18 having to some odd for then at four-year term it was fair calculating and said balancer out there And when she knew I even flatly refused to start the lease. you? Neighbor. I've known her for six years. My kids call her Aunt Donna. And she is the backer in the company. She's the D in J & D. How did you determine which tire changer and balancer you wanted? From Mid-State? Right. I might have looked at some brochures through Ray. I honestly don't remember if he did or didn't bring them down. But I do recall that I had asked Ray to look into leasing a tire machine balancer for me. FIUU$ & McLU~S ~POR~NG SER~CE, INC. and 1 2 3 4 5 6 7 $ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have a program Exam./Moore Backenstoes 19 How many places did you try to get a loan to pay for the equipment before your grandfather obtained the equipment? Well, first it was Donna Parks. for the business called Quick Books. I went through the Internet with that which rejected me because I had not been in business two years· Give me a minute. Yeah, it used to be Norwest, it's now Wells Fargo, which holds the mortgage on my house. And I had started to attempt with M&T when the bank manager told me you haven't been in business two years, don't even bother filling out a credit app. And when the mortgage company for your house turns you down because you haven't been in business two years and don't even want to think about collateral on a house, my only other option was my retirement, And the last one was Rick Nationwide Insurance and he's and that one just got shot Wagner who works for some sort of broker, down· Did you actually submit those places? an application to any of it The one through Quick Books, yes; Rick Wagner, yes; via telephone with Wells Fargo, yes; M&T, ~LIUS & McLUCAS REPORTING SER~CE. ~C. 1 2 3 4 5 6 7 Q. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exam./Moore - Backenstoes was just a conversation with the manager at my branch and she advised me not to even waste my time coming down to fill out a credit I haven't been in business two years, business loan. So, I never 20 grandpa to back it up because he's dead now -- I'm his name sake, I've never asked grandpa for a dime. This was his gift to me because I've tried to do things on my own. And had he arranged for a lease or the equipment? No. He arranged and was paying a didn't have that kind of money to $7,600 for the three items he had did he purchase lease. Grandpa even lay out sent down. When grandpa passed away, I had approached Young's Equipment and told them I would take over the lease if things would go through and that's what we did. And you currently have that and are paying the lease? FILIU$ & McLUCA$ REPORTING SERVICE, INC. Harrisburg 717-236.0623 York 717-845-6418 PA 1-8~0~253-9527 a small at M&T. The equipment that your grandfather obtained, how did that -- did you ask him to do that? I was named after my grandfather. He went out and did this. My grandpa's words -- and I can't get app because I won't get filled one out 5 6 7 8 9 10 i1 12 13 14 15 16 17 18 19 20 21 22 25 1 A. 2 3 4 A. Exam./Moore - Backenstoes 21 I went through PA State Bank at that time for a lease with Mr. Young's help to redo a lease in my on account of social name as opposed to grandpa's security numbers and taxes. What are the terms of that lease? Well, I got two of them there, One is three years and then I have a lease for a car lift for two years. I should have kept my briefcase here. I have my payment books in there. But it's a three-year lease for the-- Yeah, and the buyout is $1 at the end of the lease. What's the monthly payment? For the first three items the monthly on time is $298.06. For the first three items? The tire changer, the tire balancer and the AC recovery unit. Do you know what the terms were of the lease with your grandfather? I didn't even go into it. And you said for the tire changer price was approximately $7,600? For all three. Oh, including the recovery unit? ~LIUS & McLUCAS ~POR'~NG SER~CE, INC. payment paid and balancer the 1 A. 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exam./Moore - Backenstoes 22 Right. I can get the actual figures and fax them to you. My accountant, she works for bookkeeping, my wife and she can pull all of that information up and fax it to both of you if you want to see it. Was this lease you have now based on whatever they determined the residual value to be of the equipment? It was used so-- I would assume so. I approached Jeff Young because he was going to take it back since grandpa had passed away and I approached him to see if maybe we could just get a lease that I could just buy it and be done with it. So, I would assume it was at a reduced value. I honestly don't know. Jeff did the paperwork, came back to me with the lease, said I needed 300 and some odd dollars down and it would be approved via PA State Bank leasing. I gave them a check and then I got my books in the mail. Do you know if your grandfather obtained more lease terms based on you said he had a favorable relationship with Mr. Young? Yeah, he knew Mr. Young's dad. I don't know. never saw any of the payments. Grandpa made the payments up until I approached Jeff to try to F~LIUS & McLUCAS REPORTING SER~C~ ~C. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q o ao Exam./Moore - Backenstoes 23 lease it myself. And the equipment you have, would you to be comparable to the Mid-State equipment? Yeah, yeah. Personal opinion, a tire machine is a tire machine. Some have fancier doodads and whistles and bells than others. But, are pretty comparable. They will do tires. The only difference in one that grandpa got bigger tires on like And then regarding consider it him and told him Phil wanted these papers. And Mr. Worley said, here, give them to me. I'm going to the club tonight, I'll see that he gets them. Did he get the papers? No. After the Sheriff's Department was first time I went in to talk to your boy Mr. Zulli kind of left said the Sheriff's Department was here. FI~US & McL~CAS REPORT~G SER~CE, INC. did you ever actually speak to him about this lawsuit? I had spoke to him by a phone and he had said get the information over to me, at which time I had gone out to Mr. Worley's office, sit and talk a little bit with him since I rent the garage off of down the Steve. I said, me down here. I And Stev( yeah, they the same size spin balancers, the has an adapter to do the a tow truck. the situation with Mr. Zulli, 1 2 3 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q o Exam./Moore opened up his briefcase and says, forgot to deliver them. Backenstoes 24 oh, here, I Who's Steve? This guy I rent the garage from, W-o-r-l-e-y, Worley Motors in Enola. And you never asked Mr. Worley if he Steve Worley, had given the FILl[tIS & McLUCAS REPORTING SERVICE, 1NC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 the complaint or a default judgment would be entered? That I forwarded -- well, that I forwarded to Mr. Worley, here, again, to forward it to Mr. Zulli papers to Mr. Zulli? No, I never did. Bad mistake on my-- You never heard from Mr. Zulli again regarding that? No. I had a phone call that his car broke down. I ran out and fixed his car and he had left the key in the car. It broke down on 81 and I got it running for him and left the key there and called his secretary to tell him his car was running. had just assumed since Mr. Zulli said he would file papers to do whatever that it was being taken care of. Here, again, I am not in these aspects. I don't deal with attorneys that much. Do you recall receiving a letter giving you -- or advising you that you had ten days to respond to 1 2 4 5 6 7 $ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exam./Moore Backenstoes 25 because he sees Mr. Zulli. And what happened to that letter? Honestly I don't know. I don't think I gave it to Phil -~ or Peter, excuse me. I don't think you got a copy of that letter. I gave you everything that Mr. Worley returned to me. I remember the letter because I did open it and I gave it to Mr. Zulli. And upon receipt of the letter, your only action was to give it to Mr. Worley? And asked him if he would give it to Phil. How long after you were served with Ehe complaint did you give it to Mr. Worley? The one for the ten days or this complaint? The original complaint. That complaint there, as soon as I got it. Because like I said, I went in to talk to Mr. Worley and told him I needed to get this to Phil and he said he would take it over because he was going to see him at the club. So, it was the same day? Correct. What about the letter? The day it came I handed that to Steve too. I'm going to have to look through Steve's desk or get FILIUS & McLUCAS REPORTING ~R~CE, INC. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 Q. 3 4 Exam./Moore Backenstoes him to. Did you read the letter? Yeah. I read the one for the ten days, yes, I read that and had asked Steve if he was going to see Phil because of the hours I work. And he had said, yeah, and he said he would deliver that. Well, that one didn't get delivered either. And at that time I had assumed this was already with Mr. Zulli, the original complaint. But at no time did you actually discuss this case with Mr. Zulli other than the initial conversation? No. The initial conversation that he would take care of it, see that he got the stuff, no. At the time you received the ten day letter, you were still operating under the assumption that it was being taken care of? Correct, which But you didn't question Call him, answering I called Phil so many times answering service. Then when I got stuff, I'd just take it into Steve and say can you give this FILIU$ & McLUCA$ ~PORTING SER~CE, INC. 26 surprised me that I got the letter. call Mr. Zulli? Well, I guess my is why didn't you call him at that point? probably because when I called I got the service and went in and talked to Steve. that I got the Exam./Moore - Backenstoes 27 1 3 A. 4 5 6 7 8 9 Q. 10 11 A. 12 Q. 13 14 15 Q. 16 17 A. i8 Q. 19 20 21 A. 22 Q. 23 A. 25 A. to Phil. So, you did call him when you received the To the best of my memory I had called upon letter? Correct. Did you have Mr. you also received it was a disputed Correct. You received the Worley deliver -- I'm assuming a complaint regarding you said inspection? complaint regarding that? (Witness nodded affirmatively.) How was that conveyed to Mr. Zulli? Mr. Worley delivered ~t to him for me. FILIUS & McL~S ~PORT[NG SER~CE, INC. After I receiving that. I may not called concerning PennDOT, machine more than I got him or his And it got habit to just hand stuff to and ask him to deliver it for me. Does Mr. Worley deliver your the PennDOT suit? Yes, he did. Have you ever experienced a problem with him forgetting to give Mr. Zulli a document? No. The documents for PennDOT got there. And the PennDOT suit was an ongoing matter at the time you received the complaint? documents regarding have because when I I got his answering secretary. Mr. Worley 1 2 3 4 5 Q. 6 7 8 9 10 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 ao Exam./Moore - Backenstoes 28 made a phone call, left a message that I had 9otten documentations from PennDOT, took it in and asked Steve if he could deliver it for me and Mr. Worley said yes he would. Did you have conversations, without going into what you discussed, just that you had conversations re~arding the PennDOT suit after he received the complaint? At the hearing at PennDOT, yes. When I went to the hearing at PennDOT, when I got to the PennDOT building Mr. Zulli was there. We met about 45 minutes prior to the hearing and we discussed what we were goin9 to do and what he expected to come out of the hearing. But no discussion prior to that? No. Voice mail on my machine to tell me that this is the date and be there at PennDOT. That was most of our communication was by voice mail, which I have with Peter periodically. How many documents do you think Mr. Worley delivered to Mr. Zulli regarding the PennDOT suit? Bare minimum, three. I got the complaint from the customer, I ~ot the complaint from PennDOT, and I had to write up a response via phone message from Phil to the complaint from the customer. Then F~L~US & McLUCA$ ~PORT~G SER~C~ ~C. 5 6 7 8 9 l0 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 3 4 Q. Exam./Moore Backenstoes 29 Phil had all three of those when we got to PennDOT. And the one at PennDOT was March, I don't know, I don't remember the exact date, but the hearing at PennDOT was in March. Why do you think both the complaint and the ten-day notice Mr. Zulli? Honestly, I don't know. the briefcase. I don't up at the clubs. I got in this case were not delivered to I don't know if he forgot know if Phil didn't show a rental relationship with rent the garage. He the papers and I let Mr. Worley, you know, I apologized when he handed me it at that. I'm not a vindictive person. with Mr. Worley that it didn't I'm not going to walk up to Mr. in the nose or hold a grudge. didn't get delivered. Whether Zulli didn't show up at their they went to, I don't know. I haven't approached Mr. I'm not tickled get delivered, but Worley and pop him Things happen. It it was his fault or dinners or whatever Worley on it. I know he felt bad about it just by when he handed them to me and said I'm sorry, it didn't get delivered. I left it at that because I was upset at the time. And when I'm angry, I try not to FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-236~0623 York 717-845-6418 PA 1-800-233-9327 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 Q. 4 A o 3O get client of mine, one of my customers recommended I come and see Peter and not pull my retirement out. So, on the advice of a lady who works in the legal system, I came to see Mr. Zulli. MR. RUSSO: Russo. Russo. FILIUS & McLUCA$ REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1~800-233-9327 Exam./Moore - Backenstoes talk to people. I try to distance myself and my thoughts together and be levelheaded. Did Mr. Worley make any comment about the complaint at the time you gave him the ten-day notice? No. In fact, I'm sure he didn't. If the confusion was simply that Mr. Worley wasn't conveying documents to Mr. Zulli, why did you change attorneys? When you get voice mail constantly and I had not -- I don't know if Phil is just that busy or what. I'm not a real expensive client. I don't have that kind of money. Whether he's just that busy or Phil opted that he didn't want to handle the situation, I don't know. Like I said, I had conversations with you on the phone. I was going to try to pull retirement out. I was trying to get loans to pay the whole kit and caboodle off and be done with it. A 1 BY MR. 2 Q. 3 4 A. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 O o Exam·/Moore Backenstoes 31 MOORE: So, when we discussed after the sheriff had been to your business-- I had called you to see if we could work somethin~ out. I was in the process ~~ strike that. I wasn't in the process. I was basically telling my wife if she didn't back me up on pulling my retirement out she could hit the road. I took a few steps back and thought, no, I'm not throwing the marriage out the window for 13 years to make her go along with me pulling out my retirement when she was dead set against it. So, was her boss and so was my backer. I backed up and took the advice of the lady and called Peter and set an appointment up with Peter. But at the time I talked to you, I was -- I was fighting to get my retirement out. And my wife will convey the message because she was at work when I called and told her you are with me you are not, and if you are not with me, hit the road, basically get a divorce. Did you call Mr. Zulli when the Department arrived? I left the voice mail. now I have tried to get FILI~S & McL~CAS REPORTING SER~CE, INC~ Sheriff's That's all I get. Even a hold of Mr. Zulli and 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 Q. Re-exam./Russo - Backenstoes 32 all I get is voice mail. I got his house number. I get voice mail. I don't know if I'm being ignored. I don't know if he dropped over dead. I honestly don't know. Did you have any discussion with Mr. Worley subsequent to having a sheriff's levy made? After Mr. Worley handed me the stuff that hadn't been delivered, no, I haven't -- I have not drug Mr. Worley back into it. Not that I don't think Mr. Worley would do anything to help me or hurt me, I just figured this is my problem. Things didn't get delivered the first time so I will handle things myself this time. Learned a lesson. discovered that nothing Was it that day that you had been delivered? Yes. MR. MOORE: That's all I RE-EXAMINATION MR. RUSSO: Just one question. Equipment had an AC correct? Yes. have . The item you got from Young's recovery unit. Is that That wasn't on the Mid-State item? No. FILIUS & McLUCAS REPORTING SERV/CE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800.233-9327 8 9 10 11 12 13 15 16 17 18 19 2O 21 22 23 24 25 1 2 3 4 5 6 7 Re-exam./Russo - Backenstoes MR. RUSSO: That's it. (The deposition concluded at 10:36 FILILIS & McLUCAS REPORTING SERVICE, ][NC. Harrisburg 717-236~0623 York 717-845-6418 PA 1-800-233-9527 33 34 COMMONWEALTH OF PENNSYLVANIA ) ) ss. COUNTY OF CUMBERLAND ) I, Ann M. Wetmore, Reporter and Notary Public in and for the Commonwealth of Pennsylvania and County of Cumberland, do hereby certify that the foregoing deposition was taken before me at the time and place hereinbefore set forth, and that it is the testimony of: JOHN BACKENSTOES II I further certify that said witness was by me~ duly sworn to testify the whole and complete truth in said cause; that the testimony then given was reported by me stenographically, and subsequently transcribed under my direction and supervision; and that the foregoing is a full, true and correct transcript of my original shorthand notes. I further certify that I am not counsel for or related to any of the parties to the foregoing cause, or employed by them or their attorneys, an( am not interested in the subject matter or outcom~ thereof. Dated at East Pennsboro Township, Pennsylvania, this 14th day of August, 2001. Ann M. Wetmore Reporter Notary Publ~ (The foregoing certification of this transcript does not apply to any reproduction of the same b any means unless under the direct control and/or supervision of the certifying reporter.) F[LIUS & McLUCA$ REPORTING SERVICE, INC. Harrisburg 717~236-0623 York T17-845~6418 PA 1-800-233-9327 LAWYER'S NOTES Exhibit 4 To whom it may concern I am w[ltidg to yea concerning one Accu-Turn tire machine and one tire balancer. I asked your Salesman to look into kaslng the abow mentioned itnns. They told me Ilmt the first lease mmlmnY we~ld net work wRh me because dthne in buslnes~ I re~!ved a tall that they found a lease mmpan~ that would werk wldh us. So the equipment was ddlvered IMfere the kale arrlved. Upon recdvJng the lease there was no bu~ out. Just that b Lease C~nlMuW wanted me to sign another kale for another 48 numths. Then I was taxed a b~y out d fair mark~ value. Now h this kase it stated that no equipment would be s. ut until I filled in the lease and sent It to the Lease Comp~my wHh dghtmm hundred doHarL I informed your salesman that I could not gft a lo~n from my bank or my badaw. Also that my gramffather had bought equlpmeat frem Yefm~'s Equlpmeut and had it ddlvered ~ my t~mpauy. Your ~hmnm Hk~l m to ~nd 'that ~luipmmt badt and tnk~ flm~ m,~m~y h~ purdmn, your equipment. This I fed b not proper for ymw sdesmmL I have enjoyed ddng busimms with yo~ cempany but at thb time I fed I must IM~y my bill and re~ from any further bus~ Plmfe remove the above ntemfloned items from this Tlumk You John B. ~ SITION EXHIBIT Exhibit 5 Mid. /ate M~N OFFICE: 1720 Bobali Dr. Harrisburg, PA 17104 (717)939-1391 (800)692-7476 Fax (717)939-9324 363 West King St. York, PA 17405 (717)84.~1521 (800)442~370 Fax (717)845-1929 4913 Jone~town Rd. Harrisburg, PA 17109 (717)6fil-9501 Fax (717)651-9~04 (717)264-3;347 (~00)237-7972 (717)790-0240 John B. Backenstoes J & D Automotive 95 Enola Road Enola, Pa. ~7025 II October 5, 2000 John: This letter is to notify you that since you did not respond to our notice sent to you on your account is being As you are well aware, are your responsibility. We regret having to take however all attempts to recover the money due our been exhausted. August 25,2000 requesting payment in full, placed with our attorney for collection. all attorney fee and collection costs this action, company has Ed Pavlovic Credit Manager DEPOSITION EXHIBIT WORD INDEX Mid-State Products Corp. v. John Backenstoes II dfb/a J&D Auto Services accountant 7:14; 22:2 4~' accurate 8:3; 11:24; 13:3 action 25:9 #4 11:12 actual 10:13; 22:1 #5 12:1 Actuslly 4:22; 8:7; 12:6; 19:22; 23:12; 26:10 ~ adapter 23:9 additional 6:10, 18 address 3:12 $1 21:11 advice 30:22; 31:14 $1 ~600 7:22; 18:9, 10 advised 7:17; 15:14; 20:2 $268.06 21:15 advising 24:21 $30,600 8:3 affirmatively 27:23 $400 7:21 afford 16:17 $7,000 4:9 again 7:11, 24; 18:3; $7,600 6:21; 20:19; 21:23 24:9, 18, 25 against 31:12 I ago 6:16 agree 5:12 I 9:23 agreeing 4:17 1,800 16:23 sllegation 13:1 10:36 33:2 along 31:11 1264 3:13 aluminum 4:4 13 31:10 amount 8:2; 9:3; 16:24; 134A 6:21 18:4 17007 3:14 anger 15:7 1st 10:23 angry 29:25 apologized 29:12 '~ app 19:13; 20:3 application 4:15, 16; 2 1o:24; 13:12, 13 12:16; 17:19; 19:22 2000 9:9; IO:23 applied 16:5 2020 4:3 appointment 31:15 spprosched 15:9; 20:20; 22:9, 11, 25; 29:21 3 approved 22:17 spproximately 21:23 3 10:16 srrsnged 20:15, 17 300 22:16 srrived 31:23 aspects 24:18 ~: assume 16:21, 23; 22:9, 13 4 11:15 assumed 24:16; 26:8 400 17:1, 1; 18:2 assuming 27:18 45 28:11 assumption 13:18; 14:13; 26:16 ~5 attempt 19:10 attorney 10:2; 14:9 attorney/client 14:22 5 12:4 attorneys 24:19; 30:9 Aunt 18:15 8 authorization 13:19 sathorizations lO:25 61 24:13 Automotive 3:25 avenues 17:16 _Ak away 6:16; 16:16; 20:20; 22:11 s.m 33:2 AC 6:21; 21:17; 32:21 B accepted 11:8 account 9:5; 21:3 B 3:13; 11:21 Filius & McLucas Reporting Service, Inc. back 8:11; 10:18; 12:21; 13:17; 14:2; 20:11; 22:10, 15; 31:7, 9; 32:9 backed 31:14 BACKENSTOES 3:8, 13; 11:22 backer 7:2, 14, 15; 18:15; 31:13 Bsd 24:8; 29:22 balancer 6:2, 20; 10:21; 18:7, 18, 25; 21:17, 22 balancers 4:6; 23:8 bank 19:11; 21:1; 22:17 banks 17:18 Bare 28:22 based 22:6, 21 Bssicslly 3:23; 31:6, 21 basis 14:21 bay 9:12 begin 8:5 begrudging 17:15 begun 10:11 behalf 11:23 belief 10:6; 14:16 bells 23:6 best 4:1; 9:14; 27:3 better 7:7 big 5:13, 20, 22; 16:21 bigger 23:10 bill 10:10 bit 23:17 Boiling 3:13, 14 bookkeeping 22:2 Books 19:5, 24; 21:9; 22:19 borrow 17:16 boss 31:13 both 22:4; 29:5 bother 19:12 bought 8:10 boy 23:24 branch 20:2 briefcsse 21:8; 24:1; 29:9 bring 18:23 bringing 4:13 brochures 18:21 broke 24:11, 13 broker 19:20 brought 5:18; 11:18, 19 Bruce 8:7, 19, 19, 22; 10:14 building 9:13; 28:11 business 4:8; 5:14; 8:15, 17; 12:15; 16:24; 17:8, 20, 21, 22; 19:5, 7, 12, 16; 20:4, 5; 31:3 busy 30:11, 14 buy 4:9; 22:13 buyout 7:17; 8:1; 17:12, 25;21:11 Miu-U-Scrip~ C caboodle 30:19 calculated 8:2 calculating 18:6 call 18:15; 24:11; 26:19, 20, 21; 27:2; 28:1; 31:22 cslled 3:8; 19:5; 24:14; 26:21, 23; 27:3, 5; 31:4, 15,19 came 3:25; 4:24; 5:1; 15:3, 5, 18, 19; 22:15; 25:24; 30:23 can 6:7; 7:6; 9:24; IO:17; 11:16; 13:2, 12; 17:17; 22:1, 3; 26:25 capital 4:8; 9:4; 13:7; 18:8 cst 15:14; 21:7; 24:11, 12, 13,15 care 24:18; 26:14, 17 case 10:3; 14:10, 24, 25; 26:10; 29:6 Cssher 8:20 caused 6:23, 24 cents 7:22 certification 3:4 certified 10:8 Chad 15:22 change 30:9 changer 3:24, 25; 4:3, 18; 6:2;9:11; 12:11, 12, 19; 13:2, 10; 18:17; 21:17, 22 changers 4:6 check 17:18; 22:18 checkbook 5:24 checking 9:5 checks 6:15 client 30:12, 20 clients 15:13 clock 9:21, 21 club 14:12; 23:20; 25:20 clubs 29:10 Coats 4:3 collateral 19:17 collectiblss 10:15 collection 1 O: 11 coming 4:25; 8:13, 17; 16:7; 20:3 commenced 10:5 comment 30:3 committing 13:9 communication 28:18 company 5:24; 16:8, 15; 18:16; 19:14 comparable 23:3, 7 complaint 24:22; 25:12, 14, 15, 16; 26:9; 27:16,19, 22; 28:8, 22, 23, 25; 29:5; 30:4 concerning 27:5 concluded 33:2 John Backenstoes, II August 9, 2001 condition 9:15; 11:10 confusion 30:7 consent 5:11 consider 23:2 constantly 30:t0 contract 13:8 conversation 4:2, 22; 20:1; 26:12, 13 conversations 8:7; 28:5, 7; 30:16 convey 31:18 conveyed 27:24 conveying 30:8 copied 10:1 copy 14:10; 25:5 correspondence 11:5 cost 13:5 costs 5:23 couch 5:19 counsel 3:3 courtesy 10:1 credit 19:13; 20:3 curious 5:1 currently 20:24 customer 28:23, 25 customers 15:13; 30:20 D 3:25; 18:16, 16 dad 22:23 dsmsged 9:17 Damegee 9:18 date 10:22; 15:12; 28:17; 29:3 day 9:8, 8; 25:21, 24; 26:15; 32:14 days 5:4; 24:21; 25:14; 26:3 dead 20:11; 31:12; 32:3 deal 17:18; 24:19 deals 17:13 decided 16:17 default 24:22 define 5:22 deliver 14:11; 24:2; 26:6; 27:8, 9, 18; 28:3 delivered 4:24; 5:25; 6:2; 26:7; 27:25; 28:21; 29:6, 15, 18, 24; 32:8, 12,15 delivery 6:4 Department 14:14; 23:22, 25; 31:23 deposit 7:22 deposition 3:15; 11:12; 12:1;33:2 desk 25:25 destroying 4:5 determination 13:24 determine 18:17 determined 14:1; 22:7 difference 23:8 (1) #4 - difference John Backenstoes, II August 9, 2001 dilT~ 20:13 dinners 29:19 dirt 9:16 discovered 32:14 discretion 11:3 discuss 26:10 discussed 5:13; 7:5; 14:18; 28:6, 12; 31:2 discussion 4:20; 28:15; 32:5 disputed 27:20 distance 30: l divorce 31:2t document 13:9; 27:13 documentation 6:7 documentations 28:2 documents 27:9, ]4; 28:20; 30:8 dollars 17:1; 18:3; 22:16 done 8:25; 15:11; 22:13; 30:19 Donna 17:7; 18:12, 15; 19:4 doodads 23:5 down 4:9, 13; 7:4; 8:1 ], 13, 16, 17; 11:18; 12:14; 13:23; 14:14; 16:21, 23; 18:9, 10, 23; 19:15, 21; 20:3, 19; 22:17; 23:22, 24; 24:11, 13 drop 9:3 dropped 32:3 drug 32:8 due 15:12 duly 3:9 dump 4:9 dusty 9:16 earlier 8:2 Ed 10:18; 11:3,6, 17, 18 efforts 10:11 eight 17:10 either 26:7 else 5:10; 15:21 end 18:5; 21:11 ended 17:24 enjoy 14:22 Enola 24:5 entered 24:23 equipment 4:9, 24; 5:1, 5, 6, 12; 6:8, 9, 10, 12, 13, 14, 19, 24; 7:6, 8; 8:9, 10, 10, 13; 14:4, 15; 16:3; 19:2, 3; 20:7, 16, 21; 22:8; 23:2, 3; 32:21 especially 13:22 even 7:18; 8:16; 12:16; 17:19; 18:9; 19:12, 16; 20:2, 18; 21:21; 31:24 eventually 5:3 exact 29:3 exactly 5:4 EXAMINATION 3: lO; 16:1 except 3:5 exchange 11:4 excuse 11:17; 25:4 Exhibit 11:12; 12:1 expectation 13:21, 22 expected 28:13 expenses 12:12, 17 expensive 30:12 experienced 27:12 expired 15:17 fact 30:6 lair 7:17; 8:1, 3; 17:12, 25; 18:5 lairly 16:24 lancier 23:5 Fargo 19:9, 25 fault 29:18 favorable 22:21 fax 22:1, 4 ~ 12:20,21; 14:3,3 felt 29:22 few 7:7; 31:9 fighting 31:17 figured 32:11 figu[es 22:1 file 24:17 filed 10:13; 14:7 filing 3:4 fill 4:16; 20:3 filled 11:1; 13:12, 13, 16, 19; 20:5 filling 4:14; 19:12 first 3:25; 7:21, 23, 25; 15:7; 17:2; 19:4; 21:14, 16; 23:23; 32:12 fixed 24:12 flatly 18:9 follows 3:9 forget 16:11 forgetting 27:13 forgot 24:2; 29:8 form 3:6; 13:19 formal 10:13 forward 24:25 forwarded 24:24, 24 four 7:21, 23, 24; 17:2; 18:2,4 four-year 7:25; 18:5 fraudulent 15:1 funny 5:15 garage 9:12; 15:5, 6; 23:17; 24:4; 29:11 Mid-State Products Corp. v. John Backenstoes 1I d/b/a J&D Auto Services gauge 9:20 gave 3:15; 22:18; 25:3, 5, 7; 30:4 gentleman 6:12 gets 23:20 gift 20:13 given 24:6 giving 24:20 good 16:16 grand 16:13 grandfather 6:11; 11:21; 19:2; 20:7, 9; 21:20; 22:20 grandpa 6:13, 15; 7:4; 8:10;20:11, 12, 17,20; 22:10, 24; 23:9 grandpa's 8:9, 13; 20:10; 21:3 grandson 7:5 grudge 29:17 guess 16:15; 26:19 guy 7:7; 24:4 H habit 27:7 half 7:24; 17:2; 18:4 hand 27:7 handed 14:10, 20; 25:24; 29:12, 22; 32:7 handle 30:14; 32:13 handling 10:3; 12:21; 14:3, 9,17, 24 happen 16:13; 29:17 happened 5:25; 14:6; 25:2 Harrisburg 14:12 Harvey 4: tO hear 3:19 heard 24:9 hearing 28:9, I0, 12, 14; 29:4 help 21:2; 32:10 hereby 3:2, 5 high 16:20 hit 16:11; 31:8, 20 hold 29:17; 31:25 holds 19:9 home 7:13; 15:18; 17:7 honestly 4:12; 9:10; 18:22; 22:14; 25:3; 29:8; 32:4 hook 6:5 hookups 7:3 horror 15:7 hours 9:21; 26:5 house 15:4; 19:10, 14, 17; 32:1 hurt 32:10 Min-U-Scrlpt~ I idea 18:1 identification 11:13; 12:2 identify 9:24; 10:17; 11:16 ignored 32:3 II 3:8, 13; 11:22 immediate 12:25; 13:2, 4 including 17:18; 21:25 indicated 5:9; 9:7 Indicating 14:8 indication 9:6 information 13:5; 14:20; 22:3; 23:15 initial 26:11, 13 inside 9:12 inspection 15:2; 27:20 instructions 3:16, 19 Insurance 19:19 interest 4:21, 22 Internat 19:6 into 4:7; 18:24; 21:21; 26:25; 28:5; 32:9 introducing 14:19 inventory 13:20; 14:14 invoice 5:7; 9:1, 2 issue 3:24 item 5:25; 8:6; 9:21; 32:20, 24 items 6:25; 10:20; 11:2, 4; 12:9; 13:14;20:19;21:14, 16 J d 3:25; 18:12, 16 Jeff 22:9, 15, 25 JOHN 3:8, 13; 11:21 judgmsnt 24:22 kept 2 1:8 key 24:13, 14 kids 18:14 kind 4:8; 9:4; 14:25; 18:8; 20:18; 23:24; 30:13 kit 30:19 knew 6:11; 8:21; 13:6, 20; 18:8; 22:23 knowledge 9:14; 16:18 known 18:14 L lady 5:13; 15:13; 17:7; 30:22; 31:14 last 8:16, 21; 19:18 lawsuit 10:5, 13; 14:6; 23:13 [ay 20:18 learn 7:9 Learned 32:13 lease 4:15, 16, 21, 23, 25; 5:2, 3, 5; 6:14, 17; 7:10, 12, 16, 16, 18,20,25; 8:13; 13:5,8; 16:3, 5,7,7, 14, 16, 17, 19; 17:2, 5, 6, 7, 9, 10, 15, 25; 18:2, 3, 10; 20:15, 17, 22, 25; 21:2, 2, 5, 7, 10, 12, 19; 22:6,12, 16, 21; 23:1 leases 16:4; 17:14 leasing 4:7; 18:24;22:18 [e~t 9:3; 23:24; 24:12, 14; 28:1; 29:24; 31:24 legal 30:22 lesson 32:13 letter 9:25; 10:4, 7, 18, 19, 22; 11:6, 17, 23; 12:5,6, 7, 8; 13:13, 22; 24:20; 25:2, 5, 7, 9, 23; 26:2, 15, 18; 27:2 letters 10:8, 9, 14 levelheaded 30:2 levy 32:6 life 11:22 lift 21:7 list 13:15 litigation 15:1 little 23:17 live 5:16 loaded 6:3; 8:9 loan 8:12; 12:13; 15:1l, 15; 17:22; 19:1; 20:5 loaned 5:14; 17:8 loans 30:18 located 9:11 long 6:6; 7:11; 16:1 O; 25:12 look 4:7; 14:4; 18:24; 25:25 looked 18:21 looking 7:3 M M&T 17:19; 19:10, 25; 20:6 machine 6:20; 9:1, 20; 10:10, 21; 13:6; 18:7, 24; 23:4, 5; 27:6; 28:16 ~g 4:4 mail 16:14; 22:19; 28:16, 18; 30:10; 31:24; 32:1, 2 major 7:3 man 6:4; 9:3 manager 19:11; 20:1 many 5:4; 16:3; 19:1; 26:23; 28:20 March 29:2, 4 dime - March (2) Filius & McLucas Reporting Service, Inc. Mid-State Products Corp. v. John Backenstoes II d/b/a J&.D Auto Services marked 9:23; 10:16; 11:12; 12:1 market 7:17; 8:1, 3; 17:12, 25; 18:6 marking 11:15 marriage 31:10 matter 27:15 rosy 5:15; 12:18; 15:24; 27:4 msybe 15:20; 22:12 meeting 4:10 mamory 4:1, 11; 7:21; 27:3 message 28:1, 24; 31:18 met 28:11 Mid-State 7:1, 10; 8:5, 23; 10:1,8, 15; 11:18; 12:18; 18:19; 23:3; 32:24 might 18:21 mine 30:20 minimum 28:22 minute 19:8 minutes 28:12 mistake 24:8 massy 5:14, 18;7:2; 17:8, 17; 20:18; 30:13 month 6:16; 7:22; 8:8; 9:19; 16:25 monthly 21:13, 14 months 6:7 Moore 10:13; 15:23, 24; 16:2; 31:1; 32:17 more 5:23; 16:4; 22:20; 27:6 mortgage 19:9, 14 most 6:7; 11:22; 12:15; 17:20; 28:18 Motors 24:5 Mrs 18:1 much 5:18;6:18; 15:17; 24:19 ~self 23:1; 30:1; 32:13 N name 3:12; 8:21; 16:15; 18:11; 20:12; 21:3 named 6:11; 20:9 Nationwide 19:19 need 13:2, 4 needed 9:2; 13:5; 18:9; 22:16; 25:18 Neighbor 18:14 saw 11:4; 13:2; 16:24 nodded 27:23 normal 12:22 Norweat 19:8 nose 29:17 notice 29:6; 30:5 Number 9:23; 10:24; 13:12, 13; 32:1 numbers 21:4 O objections 3:5 obtain 6:10 obtained 19:2; 20:7; 22:20 odd 7:21; 17:1; 18:2; 22:16 off 6:3; 8:14; 9:4; 15:9; 23:17; 30:19 offer 12:11, 17 offered 12:13 office 23:16 once 15:3; 16:16 one 4:7; 5:18; 6:7; 14:8; 15:13; 16:5, 7, 9, 12; 17:9; 19:18, 20, 24; 20:5; 21:6; 23:9; 25:14; 26:3, 7; 29:2; 30:20; 32:20 ongoing 27:15 only 8:21; 11:5; 19:17; 23:8; 25:9 open 25:7 opened 7:12; 24:1 operating 26:16 operational 9:15 opinion 23:4 opportunity lO:24 opposed 21:3 opted 30:14 option 19:17 original 25:15; 26:9 others 23:6 out 4:15, 16; 5:18; 6:15; 11:1; 13:12, 13, 16, 19; 15:11; 17:9; 18:7; 19:12; 20:3, 5, 9, 18; 23:16; 24:12; 28:14; 30:18, 21; 31:5,8, 10, 11, 17 outright 13:7 Over 6:16;7:14; 14:10; 15:1, 10; 20:21; 23:15; 25:19; 32:3 own 20:14 owns 6:12 P-a-r-k-s 18:12 PA 3:14; 21:1; 22:17 paid 9:2; 15:9; 21:14 papers 7:12; 23:18, 21; 24:7, 17; 29:12 paperwork 22:15 Parks 17:7; 18:1, 12; 19:4 par[ 17:20 parties 3:3 passed 6:16; 20:20; 22:11 psy 8:14; 10:9; 12:11, 13, 17, 23; 14:2; 15:15; 17:17; 19:1; 30:18 Filtus & McLucas Reporting Service, Inc. psying 6:13;7:25; 20:17, 24 psyment 5:9; 16:21, 23, 25;21:9, 13, 14 payments 6:17; 22:24, 25 PennDOT 14:24; 27:5, 10,14, 15; 28:2, 7, 9, 10, 10, 17, 21, 23; 29:2, 2, 4 people 30:1 per 16:25 percentage 14:3 periodically 28:19 person 29:14 Personal 23:4 Peter 25:4; 28:19; 30:21; 31:15, 16 Phil 14:8, 11, 13, 19, 19; 23:18; 25:4, 11, 18; 26:5, 23; 27:1; 28:25; 29:1, 9; 3o:11, 14 phone 8:8; 15:10; 23:14; 24:11; 28:1, 24; 3o:17 place 8:15, 16; 11:7 pisces 19:1, 23 plsint~'s 14:6 plus 8:3 point 4:14, 17; 6:1, 9; 7:9; 8:5; 15:13; 16:9; 26:20 pointed 17:9 pop 29:16 prsctice 12:22 president 8:23 pretty 23:7 price 4:17; 5:9; 6:20; 9:7; 21:23 prices 17:11 prier 8:12, 16; 14:23; 28:12, 15 probably 11:20; 26:21 problem 27:12; 32:11 process 31:5, 6 product 7:10 Products 8:23; 10:1 program 19:4 property 17:13 provided 5:10 pull 22:3; 30:17, 21 pulling 15:10;31:7, 11 purchase 5:12, 20, 22; 6:18, 20; 7:10; 13:7, 10; 20:15 purchases 5:13 pursue 17:16 Q Quick 19:5, 24 R12 6:21 Min-U-Script~ John Backenstoes, II August 9, 2001 ran 24:12 restrictions 11:7 rate 4:21 retain 6:25 rates 4:23 retirement 15:10,15; rather 6:25 19:18; 30:17, 21; 31:8, 11, Ray 4:1, 5, 6, 12, 23; 5:2, 17 9; 11:18; 13:16; 16:6, 6, 9, return 11:2; 13:18 13, 22; 18:21, 24 returned 25:6 Ray's 3:15 Rick 19:18, 24 RE-EXAMINATION Right 11:25; 18:20; 22:1 32:18 Road 3:13; 31:8, 21 reaction 15:7 Rob 4:10 read 7:15, 15; 11:19; running 8:18; 24:14, 15 17:8; 26:2, 3, 4 RUSSO 3:11; 11:14; 12:3; reading 3:3; 12:6 15:21, 24; 30:24, 24, 25; real 30:12 32:19; 33:1 realize 17:22 realized 12:20 S reason 17:24 reassured 16:13 sake 20:12 recall 4:10, 14, 17, 19; sale 15:12 9:9; 15:17; 16:19, 20; sales 5:9 17:24; 18:23; 24:20 salesman's 9:6 receipt 25:9 same 23:7; 25:21 received 5:6; 8:25; 9:2; 10:7, 9, 18; 12:5; 26:15; ssw 14:21; 22:24 27:2, 16, 19, 22; 28:8 scratches 9:18 receiving 24:20; 27:4 sealing 3:4 recommended 15:16; second 17:2; 18:5 30:20 secretary 24:15; 27:6 recovery 21:18, 25; security 21:4 32:21 seek 6:10 redo 21:2 seem 8:3 reduced 22:14 sees 25:1 reference 11:3 sell 4:5 refund 10:25 sellable 11:10 refused 18:9 send 13:17 regard 12:12, 18 sent 6:13; 8:11; 9:25; regarding 4:20; 11:3; 11:20, 23; 12:7, 8; 13:13, 16:3; 23:11; 24:9; 27:9, 19, 19; 20:19 22; 28:7, 21 September 10:23 rejeCt 11:4; 17:6 serYed 25:12 rejeeted 19:6 service 26:22, 24 rejecting 17:25 set 15:7; 17:1, 3, 5; 31:12, relationship 14:23; 15 18:13; 22:22; 29:10 seven 16:12 remember 4:2, 11, 12; sewer 7:3 7:11;9:10; 18:22; 25:6; sheriff 15:3, 5, 8, 12, 18; 29:3 31:2 remove 8:6; 10:19; 12:8; Sherh~'s 14:14; 23:22, 13:14 25; 31:22; 32:6 removed 12:11 shop 7:4; 10:20; 14:15 rent 23:17; 24:4; 29:11 shot 5:18; 8:15, 17; rental 17:13; 29:10 12:14; 16:12; 19:20 requested 12:10 show 9:23; 10:16; 11:15; requesting 13:14 12:4; 16:14; 29:9, 19 resellsble 13:24; 14:1 showe~ 6:8;7:8 reserved 3:6 sign 6:4; 7:16, 18, 24; residual 22:7 11:21; 13:8; 17:10, 15; respective 3:3 18:2, 3 respond 24:21 signing 3:4; 5:1 response 10:19; 12:5, 7; simply 30:7 28:24 sit 23:16 r~stocking 12:20; 14:3 situation 23:11; 30:15 (3) marked - situation John Backcnstoes, 1I August 9, 2001 six 18:14 size 23:7 sleep 5:19 small 9:12; 17:21; 20:5 social 21:3 somebody 13:23; 16:12 sometime 9:8 soon 25:16 sorry 29:23 sort 19:20 spaak 23:12 speaking 8:19 spin 23:8 spoke 23:14 spring 9:9 Springs 3:13, 14 start 5:14; 17:8; 18:10 started 19:10 starting 4:7 State 21:1; 22:17 stated 13:4 steps 31:9 Steve 23:23, 25; 24:3, 4; 25:24; 26:4, 22, 25; 28:3 Steve's 25:25 still 9:14; 26:16 stipulated 3:2 STIPULATION 3:1 stocking 10:20 stocks 10:10 stopped 7:4 strike 12:25; 31:5 stuff 13:24; 26:14, 24; 27:7; 32:7 submit 19:22 subsequent 32:6 suit 27:10, 15; 28:7, 21 supply 14:15 supposed 10:2; 15:1 sure 30:6 surprised 17:21; 26:18 sworn 3:9 system 30:23 T talk 15:16; 23:16, 23; 25:17; 30:1 talked 15:8; 26:22; 31:16 talking 4:3 taxes 21:4 telephone 19:25 telling 31:6 ten 24:21; 25:14; 26:3, 15 ten-day 29:6; 30:4 term 4:21, 23; 17:10; 18:5 terms 7:9, 16, 19, 23; 16:18; 21:5, 19; 22:21 testified 3:9 testimony 9:7 thought 17:21; 31:9 thoughts 30:2 th rea 6:22; 15:20; 20:19; 21:6, 14, 16, 24; 28:22; 29:1 three-year 21:10 threw 16:16 throwing 31:9 tickled 29:14 times 26:23 tire 4:3, 6; 6:2, 20, 20; 9:1, 11; 10:10, 21; 12:10, 12, 19; 13:2,6, 10; 18:7, 17, 24; 21:17, 17, 22; 23:4, 5 tires 23:8, 10 today 8:2; 9:11 together 30:2 told 8:12; 9:7; 11:1, 20; 15:8; 16:6, 22; 19:11; 20:21; 23:18; 25:18; 31:19 tonight 23:20 took 6:16; 7:12, 13; 17:7; 28:2; 31:8, 14 tow 23:10 trial 3:7 tried 8:16; 20:13; 31:25 truck 6:3; 23:10 try 12:13; 17:16; 19:1; 22:25; 29:25; 30:1, 17 trying 15:11; 16:8; 30:18 turn 12:4 turns 19:15 two 6:7; 7:3, 16; 8:8, 15, 18; 9:19; 12:15; 17:20, 23; 19:7, 12, 16; 20:4; 21:6, 7 type 9:20; 14:22 LT under 13:17; 14:13, 16; 26:16 unit 6:21; 21:18, 25; 32:21 units 6:22 unpack 6:5 up 6:5, 8, 15; 7:2, 8, 13, 23; 8:18; 14:13; 16:14; 17:24; 20:11; 22:4, 25; 24:1; 28:24; 29:10, 16, 19; 31:7, 14, 15 upon 25:9; 27:3 upset 29:24 use 6:5, 6; 9:18, 20 used 19:8; 22:8 using 13:17 V value 7:17; 8: l, 3; 18:6; 22:7, 14 vehicle 15:2 via 19:25; 22:17; 28:24 vindictive 29:14 Voice 28:16, 18; 30:10; six- zulu (4) Mid-State Products Corp. v. John Backenstoes II d/b/aJ&D Auto Services 31:24; 32:1,2 W W-o-r-l-e-y 24:5 Wagner 19:19, 24 waived 3:5 walk 29:16 waste 20:2 way 9:17; 17:3, 5 Wednesday 14:12 weekly 14:21 weeks 5:4; 7:7; 15:20 Wells 19:9, 25 what's 5:23; 10:22; 18:11, 13; 21:13 wheel 3:24, 25; 4:18 wheels 4:4, 4 whistles 23:6 Who's 24:3 whole 30:18 wife 5:15;7:13; 15:10; 22:3;31:7, 18 willing 12:23 window 31:10 wise 4:11 Within 7:7; 8:8 without 4:4; 5:1; 28:5 witness 3:8; 27:23 words 20:10 work 15:14; 16:8; 26:5; 31:4, 19 works 19:19; 22:2; 30:22 Woriey 14:10, 19, 21; 23:19; 24:4, 5, 6, 25; 25:6, 10, 13, 18; 27:7, 9, 18, 25; 28:4,20;29:11, 15, 16,21; 30:3,7;32:5,7,9, 10 Worley's 9:12, 12; 23:16 worth 4:9; 17:12; 18:8 write 28:24 writing 6:15 written 9:25; 13:9 wrote 10:4, 7, 12 19; 30:8, 23; 31:22, 25 Y year 4:2 years 7:21, 24; 8:15, 18; 12:15; 17:2, 11, 20, 23; 18:2,4, 14; 19:7, 12, 16; 20:4; 21:6, 8; 31:10 Young 22:9, 22 Young's 6:12, 24; 20:20; 21:2; 22:23; 32:20 Z ZullJ 14:8, 16, 18, 23; 23:11, 24; 24:7, 9, 16, 25; 25:1, 8; 26:9, 11, 19; 27:13, 24; 28:11, 21; 29:7, Min-U-Script~ Filius & McLucas Reportin4 Service, Inc. Lawyer's Notes IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLANIA MID-STATE PRODUCTS CORP., Plaintiff vs. JOHN BACKENSTOES II d/b/a J & D AUTO SERVICES Defendant No: 01-2014 CIVIL TERM CIVIL ACTION LAW Deposition of: RAYMOND P. MOSNIK Taken by : Defendant Date : August 9, 2001, 9:00 a.m. Place : 5010 E. Trindle Road Mechanicsburg, Pennsylvania Before : Ann M. Wetmore Reporter Notary Public APPEARANCES: J. CHAD MOORE, ESQ. For - Plaintiff PETER J. RUSSO, ESQ For - Defendant ALSO PRESENT: JOHN B. BACKENSTOES FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 7717-845-6418 PA 1-800-233-9327 INDEX WITNESS RAYMOND MOSNIK By Mr. Russo By Mr. Moore Deposition Exhibit Number EXHIBITS 1 Letter to Mid-State Products from John B. Backenstoes 2 Return Authorization forms 3 Letter to John B. Backenstoes from Ed Pavlovic, dated September 1, 2000 II 2 Examination Page 19 20 31 FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-256-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived; and all objections except as to the form of the question are reserved to the time of trial. duly RAYMOND MOSNIK, called as a witness, sworn, testified as follows: EXAMINATION BY MR. RUSSO: Q. Ray, as being you know my name is Peter Russo. I represent John in this matter and today I'm going to ask you some questions. Our court stenographer is going to be taking down everything that we say so there's no -- the words are very clear. If at any time I ask you a question and you don't understand my question, please feel free to say so and then I'll try and rephrase it. If you don't and you answer my question, we are going to presume that you did understand it and your answer applies If to that question. at any time you want there's no question pending, just say you'd like a break to take a break and please feel free to or you want more water F~LIUS & McLUCAS RE~ORT~NG SER~CE, INC. 1 2 3 A. 4 Q. 5 6 7 A. 8 Q. 9 10 11 A. 12 Q. 13 A. 14 Q 15 A 16 Q 17 A 18 Q 19 A 20 21 Q. 22 A. 23 Q. 24 A. 25 Exam./Russo Mosnik 4 or go to the bathroom, anything, we will stop for you and go from there. Okay? Okay. This morning are you under the influence of any drugs or alcohol, any medication, anything of that nature? No. Is there anything that today would impair you from or your ability to answer my understanding questions? No. Can I ask how old you are? 42 years old. And what is your job with Mid-State? I'm a salesman. How long have you done that for? Since December 2nd of 1998. What did you do before that? I was a sales manager and a salesman for Circuit City. And how long did you do that for? Two and a half years. Was that a local store? York and Mechanicsburg. And what caused you to go from Circuit City to FILIUS & McLUCAS REPORT~G SER~CE, ~C. 1 2 A. 3 Q. 4 A. 5 6 7 Q. 8 A. 9 Q. 10 A. 11 12 13 14 Q. 15 A. 16 17 Q. 18 A. 19 Q. 20 A. 21 Q. 22 23 A. 24 Q. 25 A. Exam./Russo Mosnik Mid-State? I wanted out of retail. Good answer. Mid-State was a customer of mine So, they had been wanting me them a very long time. 3M. for How Two And you I was a when I was with to come working between that time. What's your educational Six credit hours shy of background? an associate's degree in liberal arts, high school diploma. And where did you go for your liberal arts? Lakeland Community College in Kirtland, Ohio. And high school was that in Ohio also? Willoughby South High School in Willoughby, Ohio. Direct our attention hand. Okay. How do you know John John Backenstoes was now to really the matters at Backenstoes? a customer of ours through FILIU$ & McLUCAS REPORTING SERVICE, INC. Ha~.isbu~g 717-256-0623 York 717-845-6418 PA 1-800-233-9327 for long had you been at Circuit City? and a half years. said you were at 3M before that? 3M representative from '86 until '92. And if you're wondering what was in between that time, I owned my own pet store. I was self-employed in 1 2 3 4 Q. 5 6 7 A. 8 Q. 9 10 11 A. 12 13 Q. 14 15 A. 16 17 18 19 Q. 20 21 A. 22 23 Q. 24 25 A. Exam./Russo Mosnik 6 Worley Motors initially and then John went out on his own creating J & D Automotive and then I took over John's account once he went out on his own. And you know the subject matter of this lawsuit where a part of it is a tire changer and wheel balancer. Correct? And inventory. And some inventory. Let's focus in on the tire changer. What was the model if you know of that tire changer? We'd have to look into the records. I'm sure it's in there somewhere. So, you don't know off the top of your head what you were offering to get to Mr. Backenstoes? At the time that we did the sale, yes. I mean it's been, what, a year and a half or close to that, so I don't remember those names. It was Accu-Turn. How many different types of tire changer and wheel balancers do you sell? Mostly Accu-Turn. We could get another brand called Coats, but Accu-Turn is what we sell. And Coats is what Mr. Backenstoes has or had at the time in his shop at that point. Correct? No. FILIUS & McLUCA$ REPORTING SERV[CE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9527 1 Q. 2 A. 3 4 Q. 5 6 7 8 A. 9 10 11 12 Q. 13 14 A. 15 16 17 18 Q. 19 A. 20 21 22 23 Q. 24 A. 25 Exam./Russo Mosnik He didn't have a Coats. Do you know what he had? Okay. Are you talking about previous to the purchase of this equipment? Well, I guess there's a question whether any equipment was purchased or not. But prior to your equipment being brought to him, do you know what kind of equipment he had? I think it was a Coats. I'm not positive on that, but I do believe. It was not a rim clamp tire machine. It was just an old style tire machine is what it was. Does Accu-Turn have various models or is it one standard machine? NO, there's different models that you can purchase. And what we did was I brought a factory representative in with me who represents Accu-Turn. His name is Rob Harvey. Okay. And with the brochure Rob explained to John what the different machines were, what they would do, what advantages he would get if he bought different machines. Okay. So, collectively their representative and John decided on the models that he ended up purchasing. FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 O o Exam./Russo - Mosnik 8 The guys have requirements on what they want to be able to do. Different machines can change different size tires. Different wheel balancers can balance different size tires. So, you need to find out what the customer wants to balance, what they want to change, and then you recommend a machine based on their needs and that's what we did. And do you remember what John's requirements were? No, I don't. I let him and the factory representative determine what was going to right machine. Now, do you know at that point whether the of the tire changer was discussed? be the price information with you information with you back not been Do you have any of that today? No. Do you have any of that at your place of business? Yes. Do you know any reason why that has ~US & McLU~S ~PORTING SER~C~ Ha~sbu~ ~7-236-0625 York ~8~-~18 PA 1-$~-233-~27 Yes, because we came in with prices on the different machines that we were going to present to him. I think there was like three machines that could actually work for John. 1 2 A. 3 4 Q. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Exam./Russo - Mosnik produced up until now, that pricing Well, John would have an invoice so have that in his possession. 9 information? John would And can you tell me the date, give me as to when you were there with Rob Harvey? Spring of last year. At that time there was some discussion of that machine. Correct? There was two options. Okay. John was new a time frame leasing in business and I told him at that Am I Yes. Yes. What do you believe them to be? FILII. IS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 aware of them now? point in time he might have difficulty getting a lease. He said not a problem, if he couldn't get the lease then his backer would pay for the equipment, but he preferred to get a lease. Did he assert to you that his backer would pay any price or was there any contingencies on that statement? NO. Are you aware of the lease terms that were provided to John? 1 2 3 5 Q. 6 A. 7 8 9 10 11 12 13 14 A. 15 Q. 16 A. 17 Q. 18 19 A. 20 21 Q. 22 A. 23 24 25 Q. Exam./Russo Mosnik 10 His lease terms -- I don't remember the amount of years. I think it was three years it was going to be. I remember this stuff much clearly a year and a half ago. Okay. But I believe it was three-year term or four-year term. And we have a factor that you can take the purchase price and then you can calculate what the monthly payment would be. So, we estimated that for John and that was acceptable to him at that point in time. At what point in time are we talking about, back in that spring of '99? Yes. So, spring of last year? Um-hum. Do you recall what that lease price would have been? No. It was -- I mean it was somewhere in the $7,000 range I believe. For the total lease? For the -- well, no, I'm talking about the equipment. There was a tire balancer and a tire machine. Okay. FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 A. 2 3 Q. 4 A. 5 6 7 8 9 10 Q. 12 13 14 A. 15 16 17 18 19 20 21 Q. 22 23 A. 24 Q. 25 I mean we that was Okay. My mind figures, Exam./Russo Mosnik 11 gave all of those prices up front, okay, all presented to John. has no reason to retain those exact you know, in August of this year. But I mean there's all invoices and stuff that spells this out very clearly. It would be at Mid-State Products and then John would have received it too because we always invoice that stuff. If I told you the terms as I've been advised them to be were $1,800 up front, $400 a month for four years and then $200 a month for four years, does that sound even remotely familiar? Yeah. There's a down payment you have to put down on it, monthly payments. That could be accurate. I'd have to see the lease, you know, in front of me again to refresh myself, but I think that could be accurate. Because I knew it was like a three or four-year lease is what he was looking at. You have to put so much down. If I told you those lease terms come to a total just shy of $31,000, would that seem accurate? I don't know. How many leases have you done on this type of equipment? FILIUS & McLUCAS I~EPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-235-9327 1 A. 4 Q. 5 6 A. 7 8 Q. 9 10 11 A. 12 Q. 13 14 A. 15 16 Q. 17 18 A. 19 20 Q. 21 22 A. 23 Q. 24 A. 25 Q. Personally Um-hum. One. And that's today? Um-hum. A lot equipment. Exam./Russo myself? Mosnik 12 other than the one we are talking about of garages will pay cash for And when you say a price was given to John for that monthly amount, you are not sure of the price as you sit here today. Correct? As of today, yes. And when you say spring, including within the term I think that conversation think it was And would it him a price on Um-hum, within like that. So, springtime what months are you spring? started in March. I March. have been around March that you gave the lease agreement? that spring time frame and stuff meaning March, April, May, one of Now, those three months? It didn't get into May. So, March or April? Yeah. It was February, March or April, yeah. within the complaint there was some FIL~S & McLUCAS ~POR~NG SER~CE, INC. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ao Exam./Russo discussion of provided? Um-hum, yes. Did you provide Yes. When was that? Within the time And you personally gave Um-hum. Mosnik a lease application that was that to Mr. Backenstoes? frame that we are talking that to him? Was this a different time than when with Mr. Harvey? Yes. And when you gave him the price for was that also a different time than Harvey? about. 13 you were there the product, with Mr. No. Oh, that same day? We gave that the same time. John said, okay, let's go ahead and order up the equipment and that's what we did. And then John filled out the information because that's private. There's information on there that I don't need to know about John's personal and private status, you know, his finances. That's all done, it was all faxed back and forth between John and the FILIUS & McLUCAS REPORTING SERVICE, [NC. Ha~rlsburg 717-236.0623 York 717-845-6418 PA 1-800-233-9327 leasing 1 2 3 4 Q. 5 6 A. 7 8 Q. 9 A. 10 11 12 13 14 15 16 Q. 17 18 A. 19 20 21 22 23 24 Q. 25 A. company. are getting paid our client. Who is the leasing company, company for this purchase? That would have to Exam./Russo Mosnik 14 Ail Mid-State wants to know is that we for the product that we sold to who was the leasing be obtained from, you know, Mid-State Products. Chad, do you remember who-- So, you don't know who Rob Harvey works for? Well, no, I don't remember the company. We are an Auto Pride affiliate and we have leases available through Auto Pride, so I don't remember who it was. If I had that leasing information in front of me -- if you want me to call, I can go call the office and find out for you. But I know that the lease was accepted for John. Do you know when John actually got lease for him to execute? No, the promising that, but I believe. It fast. Most banks can do it pretty lease companies in this situation. Do you know when John opened up his Not a copy of the I do not. It was not long after he filled out lease. !~ ~O~ld give yO~a~ esti~aa~e tha't i~t probablYwithi~ sevento 14 dayg. I'm not happens pretty quickly, or business? exactly, but it was a couple of months before F~L~US & McLU~S REPORTING SER~C~ ~C. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 the 2 Q. And if we 3 February, 4 Exam./Russo Mosnik time frame that we are talking about. are talking about the time frame of March and April, if I told you 15 needed, and filters and bulbs and stuff like that. So, to me, you know, there was not -- other than the legal end of it in becoming J & D there wasn't a big interruption. And obviously the financial position between Mr. -- well, the difference between Mr. Worley and was also-- set up an account for John. John charge at that point in time with in good standing with us as far as Mr. Backenstoes Absolutely. We was on a weekly us and John was his credit. And John requested to go from a weekly to a monthly charge because many of his clients were tying up his money for a longer term FI~US & McLUCAS ~PORT~G SER~CE, INC. he opened up his business in February of that year, would that be believable to you? Yes. Because for me there really wasn't an interruption. John was with Worley Motors who was a customer. And then when John bought out all of the merchandise, to me it was just basically almost a continuation of the same thing. I kept going every week and seeing John, you know, for his weekly needs, write up his cores, see what he 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ao Exam./Russo and we granted because he was And his credit - Mosnik 16 him a monthly charge with us in good credit standing· standing was only established from February of that year? Right. But he had credibility with us because he was working with Worley Motors and stuff. So, felt that we weren't going to have a problem getting paid from John. At some point do you recall John asking you to we remove that tire changer from his place of business? I was advised that he had had a conversation with the owner, Bruce Casher, and he requested that. That was the summer after. you never had a removal of that That was many months of last year. So, is your answer with him about the conversation item and him being John Backenstoes? I'm trying to remember if it was before or after. I'm not 100 percent sure. Before or after what? He had his conversation with the owner, Bruce Casher. The equipment was used, I mean at that point in time when John asked that it be removed, and that creates a whole new dilemma because used FILIUS & McLUCAS REPORTING SERVICE, INC. Han'isburg 717-236~0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a o Exam./Russo Mosnik 17 equipment is not worth the same value as brand new equipment. Just like a car, if you drive it off the dealer's lot, it's now a used car. If you take it back, it's not worth the same amount of money as before you titled it and drove it off the lot. Same thing with equipment. Once you use it, it's now used equipment and the manufacturer, Accu-Turn, would not take it back from us. And remember they did check on that because it was used equipment. Had it never been, you know, uncrated, it never had been used, we could have taken it and sent it back. Do you ever sell any used equipment? I have never sold any used equipment, no. Do you know if equipment? No, I don't Now, let me think we ever Oh, okay. --which removal the company sold any used know that for a fact. 9o back to my question did answer-- that I don't was whether you did discuss with John of that item. in the summer of last year and that was FILIUS & McLUCAS REPORTING SERVICE, INC. Hartlsburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 the That was after we 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 a o Exam./Russo Mosnik 18 had already started legal proceedings against him. So, you had -- at least from what I'm understanding you telling me -- you had one conversation with him about the removal of this item? I'm not sure how many conversations that we had about it. So, it could have been more than one? It could have been more than one. Could it have been before summer of last year? I'm thinking. Okay. No, it would of last year. Did you have employees of item? have been sometime during the summer any other conversations with John's regarding the removal of this Other employees of Mid-State? Auto Services. I recall. recall talking with that item? Of J & D Not that You don't removing No. At the time item, Robert Fisher about John asked for the removal of that did he also ask for the removal of your FILIUS & McLUCAS R~PORTING SER~CE, INC. Exam./Russo Mosnik 19 14 15 16 17 18 19 2O 21 22 23 1 inventory? 2 A. With me? 3 Q. Yes. 4 A. Not that I'm aware of. He had that 5 with the owner, Bruce Casher. 6 Q. And let me ask you -- if you told me already, I 7 apologize -- but when do you believe that 8 conversation took place? 9 A. I believe that was summer of last year. 10 (Deposition Exhibit #1 marked for 11 identification) 12 BY MR. RUSSO: 13 Q. Let me show you what we will mark as Can you identify what that is? Well, let you this, have you ever seen this before? O o conversation Exhibit 1. form daily. car and got the customer cancelled the job, FIUUS & McLU~S ~PORTING SER~CE, INC. inventories because someone requests it. We do offset orders is what we do. So, the offset orders was your return authorization forms? Well, return authorization is something that a customer uses for their If John was to order up some parts for a the wrong parts, he fills I didn't see this. I was told that John had sent a letter to Mid-State. We don't just remove me ask 1 2 3 4 5 6 7 8 9 10 I1 12 13 14 z5 Q. 16 A. 17 18 19 20 BY MR. 21 Q. 22 A. 23 Q. 24 25 Exam./Russo that out and sends defective part, he sends it back. And if it's of these parts are rebuilt, and sends that back. So, that parts that he you order - Mosnik 20 it back. If he sends back a checks defective on it and a core, because many then he checks that is a different is ordering on a an inventory from us, to standard return~policies. scenario. That is daily basis. okay, that is no~ That h~s to be authorized by upDer management normally done products that Mid-States discretion if they want to back or not and as policy we don't. As policy you don't? As a policy we don't. set ~ces, products, whatever. (Deposition Exhibit #2 marked for identification) RU$SO: So, I'll show Okay. by offsetting ~or another set Of you take in. So, it's to=ally a~ take, that we exchange it rior otb~r you what we will mark as 2. And these are 11 sheets attached to the and there are 11 return authorizations. your exhibit Is it testimony today that return authorizations FILIUS & McLUCAS ~POR~NG SER~C~ ~C. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 A. 3 4 like Well, we've got answer. Number authorization is has on here is a inventory. And says EXI, those Exam./Russo Mosnik these would typically not be honored? questions here that we have two one, a typical return for daily purchases. What John request to take back all of his at the very end under where it were a battery consignment and That was a battery 21 to US Postal swore came to Service lost At the point in time that John requested that, we had already started legal proceedings against him and he was looking to reduce his bill at that point in time. And there was two registered checks that John sent via Service that were registered that he us and twice John said that US Postal FILIUS & McLUCAS ~PORTING SER~CE, ~C. Ha~sbu~ ~236-0623 ~rk ~845-~18 PA 1-800-233-9327 Bruce back. that is on 244580 and 244581. consignment. We did come and remove the battery consignment from his shop because he didn't own the batteries and Mid-State didn't own the batteries. EXI Corporation owned those batteries. Those were removed. Everything else is mostly brake shoes, brake pads, chemicals, filters, muffler clamps. That would have to be approved by Casher, the owner himself, to take that 5 6 7 8 9 10 11 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 3 4 Q. ao Exam./Russo Mosnik 22 those registered mail. Payment for the tire machine, inventory was supposed to have been sent to Mid-State Products that never was received by Mid-State Products. And can I ask you how that's responsive to my question about this Exhibit Number 2? And how does that respond? John was supposed to be paying us -- because I was going in on a weekly basis asking when he was going to pay for these things and that's what when he said he sent two registered checks. Now, are these items that you typically say, John, you need -- after looking at your inventory you need two sets of Raybestos brakes, you need five batteries, you need X or Y, is that something you do? When I would come on a weekly basis, what John would do is as he would use a set of brake pads as an example, he would tear the flap off for me and have them up by his telephone on his then I would ask him what he needed, for that week. And he would say that I used. Brake shoes, there sitting there, okay, so you know, him if he wanted me to reorder those ~US & McLUCAS REPORTING SER~CE, INC. desk. And what he used here's the flaps would be a core and I would ask and he would 1 2 3 4 5 6 7 8 A. 9 Q. 10 A. 11 12 13 Q. 14 15 A. 16 Q. 17 18 19 A. 20 Q. 21 22 A. 23 24 Q. 25 Exam./Russo Mosnik 23 tell me yes or no. We would go through his filters. John and I always went through the stock together. I just didn't send it in. Now, you told me that these, these being Exhibit 2, these were sent in and requested after litigation commenced and they are dated August 30th? Um-hum. And a couple for the 31st. Is that correct? Yes. If were in the process of doing it because send out registered letters. Sir, is the commencement of litigation the that these were not approved as returns? I don't understand the question. You said he sent these to you. It would have up to upper management to make the decision on whether to accept them or not. Right. But in this case litigation had already started. Now does that mean-- Do you know exactly when we started legal proceedings? I can tell you exactly when you started the litigation, which would have been February FILIUS & McLUCAS REPORTING SER~CE, INC. we hadn't started litigation, I know we we always reason been 5th of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY 2001, MR. MOORE: I think he that it was turned over for Exam./Russo Mosnik 24 which was about six months before. is confusing beginning collection as opposed to beginning litigation. MR. RUSSO: Okay, MR. RUSSO: So, is that a reason for not authorizing a return that collection efforts have begun, if you know? One time did we ever issue credit to a customer for a product. It was Stevenson's Tire and the gentleman's name was Mike Intrieri and he fell down his basement steps and was in a coma for a month and then died. And his wife was left with the business and in a humanitarian compassion for this poor wife who didn't know what to do with his business, we actually took her stock back to help pay down her bill. That's the only time we have ever taken stock back and issued a credit against someone's account. That's an account of mine. I can only speak for my accounts because that's the only thing I have knowledge of. That's the only time. Any other time if we give you an authorization to take back someone's stocking inventory, you would replace it with another stockin~ inventory of FILIUS & McLU~S ~PORTING SER~CE, ~C. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 Q. Exam./Russo - Mosnik 25 something else. So, in other words, if John wanted motor oil and filters to trade out for the total dollars it, then we would do the swap. I'm going to show you the back 2. Can you tell me where it says the authorization approval? Well, I don't have as I'm a salesman. in brakes and management approved of one of Exhibit on the back of Exhibit 2 is subject to management anything to do with this I don't make policies. as far You are a salesman representing the company who sold John Backenstoes these products. Right? Um-hum. These are the return authorizations for the products you sold him. Correct? No. No? No. These are return authorizations for daily usage. This is not relevant to a stocking inventory. Let me strike that and say these are return authorizations forms. Correct? These are return authorizations forms, that is correct. On the reverse it talks about your return policy. FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845~6418 PA 1-800-233-9327 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 A. 3 Q. 4 A. Q. A o Exam./Russo Mosnik Correct? It does. ~ ~oes your return policy say~t~hing about b~£ng ~JeCt t0 management,a~t? 26 Does that form say anything about be used a~ainst future purchases or ~he credit ~ be used against future purchases? On that form in front of me it does not. I'm looking at your complaint and the exhibits that have been attached. I'm going to show you well, the exhibit pages are not marked -- what's been listed as Invoice 505154. I'm going to show it to you and call your attention to the top two lines that say EXI, EXI. Right. Were those items that you said you had returned were returned to you and removed? What happens is any batteries that are missing from the consignment would be charged; or if someone uses batteries, okay, then that would be charged to them at an invoice when we sent out a stocking order. So, by the looks of this order here, okay, this looks like it was a stocking order -- a couple of batteries, a set of brake FILIUS & McLUCAS ~POR~NG SER~CE, INC. or 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 Q. a o Exam./Russo Mosnik 27 shoes, a set of brake pads, two wiper blades, some chemicals and some filters. That looks like a stock type order. Is it possible that these two EXI batteries consignment batteries were returned in the items that you told me were returned earlier off of Exhibit 2? Could they be returned? Could they have been within the items that were returned? Well, there is two 70DT-50'S. There's one 70DT-50 on there. There's a 35 and there's a 35. The invoice date is June 8th of the year 2000. This slip is 8/31 of 2000. So, what would happen is is on that invoice, when we would take these okay. paint, Okay. master invoice, okay, and then any batteries FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 In other words, they don't have grease and they haven't been dropped and damaged. Then it would be matched up against his that batteries back, okay, there is a master list of what was on that consignment. Okay. John or any other customer would be responsible when that battery consignment is removed that the batteries would be in good resellable condition, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 Q. 5 6 7 A. 8 9 BY Exam./Russo Mosnik 28 would be missing would be billed to him, okay, or any batteries that would not be in resellable condition would be taken care of at that time. So, these would have been billed to him after August 30th of 2000 when they were Correct? Um-hum. And on a weekly basis when I go through there, any batteries that would be missing off of that shelf, okay, I would ask John about them and he was responsible to put them back on to that shelf. So, then he would be billed for the batteries that he in turn either installed into a customer's vehicle or was missing from his shelf picked back up. MR. MOORE: That's okay. I think they are more or less in numerical order. MR. RUSSO: This one also has a 70DT and 75-60. FILIUS & McLUCAS REPORTING SER~CE, ~C, for whatever reason, theft, anything else, he would be responsible for it. That's how consignments work. If it's off the shelf, you need to replace it. Let me show you again complaint and that would bein~ invoice number 512510. MR. RUSS0: Chad, I wish I could give you better help in identifying which one it is. 1 A. 2 Q. 3 4 A. 5 6 7 8 9 10 11 12 Q. 13 A. 14 15 16 17 18 19 2o Q. 21 22 A. 23 24 Q. 25 A. Exam./Russo Mosnik Um-hum. And these also would have same explanation as what you just 9ave me. Correct? to If you use the batteries, you would reorder them. It's possible that John could sell more than one type of battery that's on his consignment. It 29 over the summertime when it ~e~s hot. 9° bad, they die. That's what keeps John in business, other ~ara~es in business and Mid-State in business is parts break and wear out and that's why we are here today. That's how we make our And then Invoice 527695 has three other batteries on it. Correct? Well, if you notice the one has a negative beside it which says policy adjustment. Okay. So, John must have had a defective battery or had F~LIUS ~ McLUCAS REPORTING SER~CE, ~C. could come down on an order, um-hum. When you have a consignment inventory, you are responsible to replace any battery that's missin~ off of your shelf for whatever reason. If it's missing, you need to replace it. That's the a~reement. And then-- And a shop should be sellin9 batteries, especially Batteries 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 Q. A. Q. Exam./Russo Mosnik 30 a customer that within the one year replacement would have been bad and credit for that particular battery. Okay. The other two batteries Let's 9o back to Exhibit I'm sorry, last three pages, Okay. I'm sorry, return number 244580 and 244581. Um-hum. Would you agree John had on Let's see, I your exhibit free he received consignments be entitled correct? which you say were removed, he would to a credit for 11 batteries. Is that FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9527 that we have 12 batteries that consignment? count 11 batteries. If you look at 244580 return authorization number, you'll notice that they are all checked new. If you 9o to return authorization number 244581, you will notice it's checked core. That means that John had used a battery and there was a core sittin~ there which he is charged $5 for until he returns that core to us, then he would receive a $5 credit a~ainst his account. So, if Mid-State accepted back the 11 battery on there are charges. 2 and the last two -- Invoice 244580. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 Q o BY MR. Q. A. Q. A. Exam./Russo Mosnik 31 No. He was never charged for those consignments. They were put in free, out of the word consignment, so he would be credited. The only thing John would be responsible for is any batteries that were missing from his original consignment, yes. And hence the charges you just went over with me on those various invoices we just went through? Those would be purchases, yes, of batteries, um-hum, or credits as they are designated on the invoices. And Ed Pavlovic-- Pavlovic. I'll show you what we will mark as 3. (Deposition Exhibit ~3 marked for identification RUSSO: Are you familiar with Ed's signature? No, I'm not. Ed is our credit manager, but I have never seen his signature before. He doesn't sign my paycheck. That signature I know. Are you familiar with your company's letterhead? No, I am not. I have never seen -- I've seen our emblems. I've never seen this before, but mine comes in the form of a paycheck. But, yes, do the FILIUS & McLUCAS REPORT~G SER~CE, PC. Ha~sbu~ ~236~23 ~rk 717-~5-~18 PA 1-800-233-9327 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 Q. Exam./Russo Mosnik addresses look accurate on here? They sure do. Does it look like it's our letterhead? It sure does. I mean that certainly is Ed's certainly would probably be his signature. Since you are not familiar I won't ask questions about that Okay. So, in two and a half document then. name and that and wheel changer had some value it was asked to be returned, diminished value a reduced rate just like you would used car at a lesser rate than a Right, it is at expect to buy a brand new car. So, that tire when give or take -- working for Mid-State, have you ever heard of anyone selling a used piece of equipment? At Mid-State? Right. Not that I have been made aware of. Have you ever heard of-- We sell new equipment is what we sell. We are not into used equipment. Normally your snap-on tool men and the other people in that industry usually sell used equipment. We sell new equipment. So, used equipment is sold within the industry? years of working for -- or 32 you any 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 Exam./Russo but it had some value? In my opinion, yes, it MR. RUSSO: Let's (Recess taken) MR. RUSS0: As done - Mosnik 33 has some value to it. take a short break. far as I'm concerned we're questions for him? with you. Do you have any MR. MOORE: No. (The deposition concluded at 9:50 a.m.) FILIUS & McLUCAS REPORTING SERVICE, INC. Harrisburg 717.236-0623 York 717-845-6418 PA 1-800-233-9327 34 COMMONWEALTH OF PENNSYLVANIA ) ) SS. COUNTY OF CUMBERLAND ) I, Ann M. Wetmore, Reporter and Notary Public in and for the Commonwealth of Pennsylvania and County of Cumberland, do hereby certify that the foregoing deposition was taken before me at the time and place hereinbefore set forth, and that it is the testimony of: RAYMOND P. MOSNIK I further certify that said witness was by me duly sworn to testify the whole and complete truth in said cause; that the testimony then given was reported by me stenographically, and subsequently transcribed under my direction and supervision; and that the foregoing is a full, true and correct transcript of my original shorthand notes. I further certify that I am not counsel for or related to any of the parties to the foregoing cause, or employed by them or their attorneys, and am not interested in the subject matter or outcome thereof. Dated at East Pennsylvania, this ~ ~'l~, ~umbe~nd Coumy I Pennsboro Township, 14th day of August, 2.00]... Reporter Notary Public (The foregoing certification of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or supervision of the certifying reporter.) FILIUS & McLUCAS REPORTING SERVICE, INC. Hanqsbu~g 717.236~0623 York 7/7-845-6418 PA 1-800-233-9327 LAWYER'S NOTES Exhibit I J & D AUTOMOTIVE SERVICE 9~ ENOLA ROAD I~OLA PA. 17025 71%909-1400 TO MID STATE PRODUCTS I AM WRITING YOU TO INFORM YOU TO PLEASE REMOVE THE INVENTORY ITEMS THAT I HAVE STOCKED AT MY SHOP AT THIS TIME. PLEASE TAKE THE MONEY FROM THESE RETURNED INVENTORY ITEMS FROM MY BILL THAT I OWE ON PARTS RECEIVED. AT THE SAME TIME PLEASE REMOVE ONE TIRE MACHn~ AND BALANCER FROM THESE PREMISES. I HAVE OIL HLTEKS, OIL ADDATIVES, BRAKE SHOES AND PADS, TRANSMISSION FLUID, LIGHT BULBS, HOSE CLAMPS, EXHAUST CLAMPS POWER STERRING FLUID, BRAKE FLUID, AND INJECTOR CLEANER IN STOCK THAT NEED TO BE INVENTORIED FOR COST. THIS PRICE WILL BE DEDUCTED FROM MY BILL THAT I CURRENTLY OWE TO MID-STATE PRODUCTS. PLEASE BE ADDVISED THAT I HAVE TALKED TO MY ATrORNEY AND AM FOLLOWING HIS ADVISE ON THIS PROBLEM BETWEEN J & D Au'rOMOTIVE SERVICES AND MID-STATE PRODUCTS. FEELS FREE TO SEND ANYONE DOWN TO INVENTORY THESE ITEMS. I WOULD APPRECIATE IT IF YOU WOULD PICK THESE ITEMS UP AS THEY ARE TAKING UP VALUABLE SPACE IN MY SHOP. O~HN THANK YOU B BACKENSTOES II CC PHIL ZULLI Exhibit 2 Exhibit 3 Mid. tate Produ¢ ~L~N OFFICE: 1720 ~obn]l Dr. Hnt~4=~burg, FA 17104 (717)939-1391 (~00)692-7476 F~x (717)939-9324 York. PA 17405 (0oo~442~7o (717)264-3347 (800)237-7972 Fax (717)264-2429 (717)790-0240 John B. Backenstoes II J & D Automotive 95 Enola Road Enola, Pa. 17025 September 1, 2000 John: In response to your letter requesting that inventory items be removed from your shop, Mid-State Products return policy is as follows: All items being considered for return must be submitted to us in writing on a return authorization form. All items being considered for return must be in good saleable condition. Mid-State's credit department will review the proposed return and determine whether the merchandise will be accepted for credit. If credit is approved, you will be notified in writing. Ail merchandise returned for credit will be assessed a handling charge to be determined at the time of approval. DEPOSITION EXHIBIT Sincerely yours: Ed Pavlovic Credit Manager WORD INDEX Mid-State Products Corp. v. John Backenstoes U d/b/aJ&D Auto Services 70DT-50's 27:11 75-60 28:25 #1 19:10 8 #2 20:18 #3 31:15 8/31 27:14 86 5:10 S 6th 27:13 $1,800 11:11 $200 11:12 $31,000 11:22 92 5:10 $400 11:11 99 10:13 $5 3o:19, 21 9:50 33:8 $7,000 10:20 a.m 33:8 I 19:13 ability 4:9 100 16:20 able 8:2 11 20:23, 24; 30:13, 22, Absolutely 15:20 24 12 30:11 accept 23:18 14 14:20 acceptable 10:10 1908 4:17 socapted 14:15; 30:22 account 6:3; 15:20; 24:20, 20; 30:21 2 accounts 24:21 Accu-Turn 6:18, 21, 22; 2 20:21; 22:6; 23:5; 25:6, 7:12, 17; 17:9 6; 27:7; 30:6 accurate 11:15, 18, 22; 2000 27:13, 14; 28:5 32:1 2001 24:1 actually 8:18; 14:16; 244580 21:8; 30:7, 9, 14 24:16 244581 21:8; 30:9, 16 addresses 32:1 2nd 4:17 adjustment 29:23 advantages 7:21 ~l~ advised ll:10; 16:12 affiliate 14:10 again 11:17; 28:18 3 31:14 against 18:1;21:21; 30th 23:7; 28:5 24:19; 26:7, 8; 27:24; alst 23:9 30:21 35 27:12, 12 ago 10:4 3M 5:5, 9, 10 agree 30:11 agreement 12:17; 29:11 ~ ahead 13:19 alcohol 4:5 42 4:13 almost 15:10 aIwsys 11:9; 23:2, 11 5 amount 10:1; 12:9; 17:4 apologize 19:7 505154 26:13 application 13:1 512510 28:19 applies 3:22 527695 29:20 approval 25:8; 26:4 approved 21:16; 23:14; 5th 23:25 25:3 April 12:20, 23, 24; 15:3 '~ around 12:16 srts 5:16, 17 70DT 28:25 assert 9:16 70DT-50 27:11 associate's 5:15 Filius & McLucas Reporting Service, Inc. attached 20:23; 26:11 attention 5:21; 26:14 August 11:5; 23:6; 28:5 authorization 19:21, 22; 21:4; 24:23; 25:7; 30:14, 16 authorizations 20:24, 25; 25:14, 18, 22, 23 authorized 20: IO authorizing 24:7 Auto 14:10, 11; 18:19 Automotive 6:2 available 14:10 aware 9:20, 22; 19:4; 32:14 back 8:22; 10:12; 13:25; 17:4, 9, 13, 19; 20:1, 1, 3, 5, 14;21:5, 18;24:16, 19, 24; 25:5, 6; 27:16; 28:5, 10; 30:6, 22 Backenstoes 5:24, 25; 6:14, 23; 13:4; 15:19; 16:18; 25:12 bscker 9:14, 16 background 5:14 bad 29:15; 30:2 balance 8:4, 5 ba[sncer 6:6; 10:23 balencers 6:20; 8:3 bsnks 14:22 based 8:7 basement 24:12 basically 15:9 basis 20:7; 22:9, 17; 28:7 bsthreom 4:1 batteriec 21:12, 13, 13; 22:15; 26:19, 21, 25; 27:4, 5, 16, 21, 25; 28:2, 8, 12; 29:4, 13, 14, 20; 30:5, 11, 13,24;31:5,9 battery 21:7, 8, 10; 27:20; 29:6, 9, 25; 30:3, 18, 22 becoming 15:15 beginning 24:2, 4 begun 24:8 believable 15:5 beside 29:22 better 28:21 big 15:16 bill 21:21; 24:17 billed 28:1, 4, 11 blades 27:1 bought 7:21; 15:8 brake 21:1% 15; 22:18, 23; 26:25; 27:1 brakes 22:14; 25:3 bread 6:21; 17:1; 32:23 break 3:23, 25; 29:17; 33:3 brochure 7:19 brought 7:6, 15 Bruce 16:13, 22; 19:5; 21:17 bulbs 15:13 business 8:23; 9:11; 14:24; 15:4; 16:11; 24:14, 16; 29:16, 16, 17 buy 32:22 C calculate 10:8 call 14:13, 13; 26:14 called 3:8; 6:22 came 8:15; 21:24 Csn 4:12; 7:14; 8:2, 4; 9:4; 10:7, 8; 14:13, 22; 19:14; 22:5; 23:24; 24:20; 25:6 cancelled 19:25 cst 17:2, 3; 19:24; 32:22, 23 care 28:3 case 23:20 cash 12:6 Casher 16:13, 23; 19:5; 21:17 caused 4:25 certainly 32:3, 4 certification 3:4 Chad 14:7; 28:20 change 8:2, 6 changer 6:5, 9, 10, 19; 8:14; 16:10;32:24 charge 15:21, 24; 16:1 charged 26:20, 22; 30:19; 31:1 charges 30:5; 31:7 check 17:10 checked 30:15, 17 checks 20:2, 4; 21:23; 22:11 chemicals 21:15; 27:2 Circuit 4:19, 25; 5:7 City 4:20, 25; 5:7 clamp 7:9 clamps 21:16 clear 3:16 clearly 10:3; 11:7 client 14:3 cliect~ 15:25 close 6:16 Coats 6:22, 23; 7:1, 8 collection 24:3, 8 collectively 7:24 College 5:18 coma 24:12 commenced 23:6 commencement 23:13 Community 5:18 companies 14:23 company 14:1, 4, 5, 9; 17:16; 25:11 Raymond P. Mosnik August 9, 2001 company's 31:22 compassion 24:14 complsint 12:25; 26:10; 28:18 concerned 33:5 concluded 33:8 condition 27:21; 28:3 confusing 24:2 consignment 21:7, 9, 11; 26:20; 27:5, 17, 20; 29:6, 8; 30:12; 31:3, 6 consignments 28:16; 30:23; 31:1 contingencies 9:17 continuation 15:10 conversation 12:14; 16:12, 16, 22; 18:4; 19:4, 8 conversations 18:6, 15 copy 14:16 core 20:3; 22:23; 30:17, 18, 20 cores 15:12 Corporation 21:13 counsel 3:3 count 3o:13 couple 14:25; 23:9; 26:25 cour~ 3:14 creates 16:25 creating 6:2 credibility 16:5 credit 5:15; 15:23; 16:2, 3; 24:9, 19; 26:7; 30:3, 21, 24; 31:19 credited 31:3 credits 31:1o customer 5:4, 25; 8:5; 15:8; 19:23, 25; 24:9; 27:19; 30:1 customer's 28:13 D 6:2; 15:15; 18:19 daily 19:23; 20:7; 21:4; 25:18 damaged 27:23 date 9:4; 27:13 dsted 23:6 day 13:17 days 14:20 dealer's 17:3 December 4:17 decided 7:25 decision 23:17 defective 20:2, 2; 29:25 degree 5:15 Deposition 19:10;20:18; 31:15; 33:8 designated 31:10 desk 22:20 determine 8:11 die 29:15 (1) #1 - die Raymond P. Mosnik August 9, :2001 died 24:13 difference 15:18 different 6:19; 7:14, 20, 22; 8:2, 3, 3, 4, 16; 13:10, 14; 20:6 difficulty 9:12 dilemma 16:25 diminished 32:25 diploma 5:16 Direct 5:21 discretion 20:13 discuss 17:22 discussed 8:14 discussion 9:7; 13:1 document 32:6 dollars 25:3 done 4:16; 11:24; 13:24; 2o:11;33:6 down 3:15; 11:14, 14, 20; 24:12, 17; 29:7 drive 17:2 dropped 27:23 drove 17:5 drugs 4:5 duly 3:9 during 18:13 E earlier 27:6 Ed 31:12, 19 Ed's 31:18; 32:3 educational 5:14 efforts 24:8 either 28:12 else 21:14; 25:1; 28:14 emblems 31:24 employees 18:16, 18 end 15:15;21:6 ended 7:25 entitled 30:24 equipment 7:3, 5, 6, 7; 9:15; 10:23; 11:25; 12:7; 13:19; 16:23; 17:1, 2, 7, 8, 11, 14, 15, 17, 24; 32:11, 16, 17, 19, 19, 20 especially 29:13 established 16:3 estimate 14:19 estimated 10:9 even 11:13 exact 11:4 exactly 14:25; 23:22, 24 EXAMINATION 3:10 example 22:19 except 3:5 exchange 20:16 execute 14:17 Exhibit t9:1o, ]3; 2o:18, 23; 22:6; 23:4; 25:5, 6; 26:12; 27:7; 30:6, 14; 31:15 died - MOSNIK (2) exhibits 26:10 EX121:7, 13; 26:15, 15; 27:4 expect 32:22 explained 7:19 explanation 29:2 F fact 17:18 factor 10:7 factory 7:15; 8:10 familiar 11:13;31:18,22; 32:5 for 15:22; 25:9; 33:5 fast 14:22 fa.xed 13:25 February 12:24; 15:3, 4; 16:4; 23:25 foal 3:18, 24 fell 24:11 felt 16:7 figures 11:5 filing 3:4 filled 13:20; 14:18 fills 19:25 filters 15:13; 21:15; 23:2; 25:2; 27:2 finances 13:24 financial 15:17 find 8:5; 14:14 Fisher 18:21 five 22:14 flap 22:19 flaps 22:22 focus 6:8 follows 3:9 form 3:6; 19:22; 26:5, 6, 9;31:25 forms 19:21; 25:22, 23 forth 13:25 four 11:11, 12 four-year 10:6; 11:19 frame 9:4; 12:18; 13:7; 15:1,2 free 3:18, 24; 3o:1; 31:2 front 11:1, Il, 16; 14:12; 26:9 future 26:7, 8 G garages 12:6; 29:16 gave 11:1; 12:16; 13:8, 13, 18; 29:3 gentlemen's 24:11 gets 29:14 given 12:8 Good 5:3; 15:22; 16:2; 27:21 granted 16:1 grease 27:22 guess 7:4 guys 8:1 half 4:22; 5:8; 6:16; 10:4; 32:8 hand 5:22 happen 27:14 happens 14:21; 26:19 Hsrvey 7:17; 9:5; 13:11, 15; 14:8 head 6:13 heard 32:10, 15 help 24:16; 28:21 hence 31:7 here's 22:22 hereby 3:2, 5 high 5:16, 19, 20 himself 21:17 honored 21:1 hot 29:14 hours 5:15 humanitarian 24:14 I identification 19:11; 20:19; 31:16 identify 19:14 identifying 28:21 impair 4:8 including 12:13 industry 32:18, 20 influence 4:4 information 8:19, 22; 9:1; 13:21, 22; 14:12 initially 6:1 installed 28:12 interruption 15:7, 16 into 6:11; 12:22; 28:12; 32:17 In]tier] 24:11 inventories 19:18 inventory 6:7, 8; 19:1; 20:8; 21:6; 22:2, 13; 24:24, 25; 25:20; 29:8 invoice 9:2; 11:9; 26:13, 22; 27:13, 15, 25; 28:19; 29:20; 30:7 invoices 11:6; 31:8, 11 issue 24:9 issued 24:19 item 16:17; 17:23; 18:5, 17, 22, 25 Rems 22:12; 26:17; 27:5, 9 Min-U-Script~ Mid-State Products Corp. v. Joh-q Backenstoes H d/b/aJ&D Auto Services J d 6:2; 15:15; 18:19 job 4:]4; 19:25 John 3:13; 5:24, 25; 6:1; 7:19, 24;8:18;9:2, 2, 11, 21; 10:10; 11:2, 8; 12:8; 13:18, 20, 25; 14:15, 16, 24; 15:7, 8, 11, 20, 20, 22, 23; 16:8, 9, 18, 24; 17:22, 24; 18:24; 19:16, 23; 21:4, 19, 23, 25; 22:7, 12, 17; 23:2; 25:1, 12; 27:19; 28:9; 29:5, 15, 25; 30:12, 18; 31:4 John's 6:3; 8:9; 13:23; 18:16 June 27:13 keeps 29:15 kept 15:10 kind 7:7 Kirtland 5:18 knew 11:18 knowledge 24:22 L Lakeland 5:18 last 9:6; 10:15; 16:15; 17:25; 18:10, 14; 19:9; 30:6, 7 lawsuit 6:4 lease 9:]3, 14, 15, 20; 10:l, 17, 21; 11:16, 19, 21; 12:17; 13:1; 14:15, 17, 19, 23 leases 11:24; 14:10 leasing 9:7; 13:25; 14:4, 4,12 least 18:2 left 24:13 legal 15:15; 18:1; 21:20; 23:22 less 28:23 lesser 32:22 letter ]9:17 letterhead 31:22; 32:2 letters 23:12 liberal 5:16, 17 lines 26:15 list 27:16 listed 26:13 litigation 23:6, 10, 13, 20, 25; 24:4 living 29:19 local 4:23 long 4:16, 21; 5:6, 7; 14:18 longer 15:25 look 6:11; 30:13; 32:1,2 hooking 11:19; 21:21; 22:13; 26:10 looks 26:23, 24; 27:2 lost 21:25 lot 12:6; 17:3, 6 M machine 7:10, 10, 13; 8:7, 12; 9:8; 10:24; 22:2 machines 7:20, 22; 8:2, 16, 17 mail 22:1 management 20:10; 23:17; 25:3, 7; 26:4 manager 4:19; 31:19 manufacturer 17:8 many 6:19; 1 ! :24; 15:24; 16:14; 18:6; 20:3 March 12:14, 15, 16,20, 23, 24; 15:3 mark 19:13; 20:21; 31:14 marked 19:10; 20:18; 26:12;31:15 master 27:16, 25 matched 27:24 matter 3:13; 6:4 matters 5:21 May 12:20, 22 mean 6:15; 10:19; 11:1, 6; 16:23; 23:21; 32:3 meaning 12:20 means 30:17 Mechanicsburg 4:24 medication 4:5 men 32:18 merchandise 15:9 Mid-State 4:14; 5:1, 4; 11:7; 14:1, 7; 18:18; 19:17; 21:12; 22:3, 4; 29:16; 30:22; 32:9, 12 Mid-States 20:13 might 9:12 Mike 24:11 mind 11:4 mine 5:4; 24:20; 31:24 missing 26:19; 28:1,8, 13; 29:9, 10; 31:5 model 6:9 models 7:12, 14, 25 money 15:25; 17:5 month 11:11, 12; 24:13 monthly 10:9; 11:15; 12:9; 15:24; 16:1 months 12:12, 21; 14:25; 16:14; 24:1 MOORE 24:2; 28:22; 33:7 more 3:25; 18:8, 9; 28:23; 29:5 morning 4:4 MOSNIK 3:8 Filius & McLucas Reporting Service, Inc. Mid-State Products Corp. v. John Backcnstoes H d/b/a J&D Auto Services Most 14:22 Mostly 6:21; 21:14 motor 25:2 Motors 6:1; 15:7; 16:6 much 10:3; 11:20 muffler 21:16 must 29:25 myself 11:17; 12:1 N 20:1; 23:12; 25:2; 26:22; 29:17; 31:2 over 6:3; 24:3; 29:14; 31:7 own 5:12; 6:2, 3; 21:11, 12 owned 5:12; 21:13 owner 16:13, 22; 19:5; 21:17 pads 21:15; 22:18; 27:1 pages 26:12; 30:7 paid 14:2; 16:8 paint 27:23 part 6:5; 20:2 particular 30:3 parties 3:3 parts 19:24, 25; 20:4, 7; 29:17 Pavlovic 31:12, 13 pay 9:14, 16; 12:6; 22:9; 24:17 paycheck 31:21, 25 paying 22:8 payment 10:9; 11:14; 22:1 payments 11:15 pending 3:24 people 32:18 percent 16:20 personal 13:23 Personally 12:1; 13:8 pat 5:12 Peter 3:12 picked 28:5 piece 32:10 place 8:23; ]6:10; 19:8 please 3:18, 24 point 6:24; 8:13; 9:12; 10:11, 12; 15:21; 16:9, 24; 21:19,22 policies 20:9; 25:10 policy 20:14, 15, 16; 25:25; 26:3; 29:23 poor 24:15 position 15:17 positive 7:8 possession 9:3 possibla 27:4; 29:5 Postal 21:23, 25 prefarred 9:15 present 8:16 presented 11:2 presume 3:21 pretty 14:21, 22 previous 7:2 price 8:13; 9:17; 10:8, 17; 12:8,9, 17; 13:13 prices 8:15; 11:1 pricing 9:1 name 3:12; 7:17; 24:11; 32:3 names 6:17 nature 4:6 need 8:4; 13:22; 22:13, 14, 14, 15; 28:17; 29:11 needed 15:13; 22:21 needs 8:7; 15:12 negative 29:22 new 9:11; 16:25; 17:1; 30:15; 32:16, 19, 23 normally 20:11; 32:17 notice 29:22; 30:15, 17 Number 21:3; 22:6; 28:19; 30:9, 14, 16 numerical 28:23 O objections 3:5 obtained 14:6 obviously 15:17 off 6:13; 17:2, 5; 22:19; 27:6; 28:8, 16; 29:9 offering 6:14 office 14:14 offsat 19:19, 20 offsetting 20:11 Ohio 5:18, 19, 20 oil 25:2 old 4:12, 13; 7:10 once 6:3; 17:7 one 7:12; 12:3, 4, 20; 18:3, 8, 9; 21:3; 24:9; 25:5; 27:11; 28:21, 25; 29:5, 22; 30:1 only 16:3; 24:18, 20, 21, 22;31:3 opened 14:24; 15:3 opinion 33:2 opposed 24:3 options 9:9 order 13:19; 19:24; 20:8; 26:23, 23, 25; 27:3; 28:23; 29:7 ordering 20:7 orders 19:19, 20 original 31:5 oars 5:25 oat 5:2; 6:1, 3; 8:5; 11:7; 13:20; 14:14, 18; 15:8; Filius & McLucas Reporting Service, Inc. Pride 14:10, 11 prior 7:5 private 13:21, 23 probably 14:20; 32:4 problem 9:13; 16:7 proceedings 18:1; 21:20; 23:23 process 23:11 produced 9:1 product 13:13; 14:2; 24:10 Products 11:8; 14:7; 20:12, 17; 22:3, 4; 25:12, 15 promising 14:21 provide 13:4 provided 9:21; 13:2 purchase 7:3, 15; 10:8; 14:5 purchased 7:5 pu rchazes 21:4; 26:7, 8; 31:9 purchasing 7:25 pat 11:14, 20; 28:10; 31:2 quickly 14:22 range 10:20 rate 32:21, 22 Ray 3:12 Rsybeatos 22:14 RAYMOND 3:8 reading 3:3 really 5:21; 15:6 reason 8:25; 11:4; 23:13; 24:7; 28:14; 29:10 rebuilt 20:4 recall 10:17; 16:9; 18:20, 21 receive 30:20 received 11:8; 22:3; 30:2 Recess 33:4 recommend 8:6 records 6:11 reduce 21:21 reduced 32:21 refresh 11:17 regarding 18:16 registered 21:23, 24; 22:1, 11; 23:12 relevant 25:19 remember 6:17; 8:9; 10:1,3; 14:7;9, 11; 16:19; 17:10 remotely 11:13 removal 16:17; 17:23, 24; 18:4, 16, 24, 25 remove 16:10; 19:17; Min-U-Scrlpt~ 21:10 removed 16:24; 21:14; 26:18; 27:20; 30:23 removing 18:22 reorder 22:25; 29:4 rephrase 3:19 replace 24:25; 28:17; 29:9, 11 replacement 30:2 represent 3:13 representative 5:10; 7:16, 24; 8:11 representing 25:11 represents 7:16 request 21:5 requested 15:23; 16:13; 21:19; 23:5 requests 19:18 requirements 8: I, 9 resallabla 27:21; 28:2 reserved 3:6 respective 3:3 respond 22:7 responsible 27:]9; 28:10, 15; 29:8; 31:4 responsive 22:5 retail 5:2 ratain 11:4 return 19:20, 22; 20:9, 24, 25; 21:3; 24:7; 25:14, 18, 21, 23, 25; 26:3; 30:9, 14, 16 returned 26:17, 18; 27:5, 6, 8, 10; 32:25 returns 23:14; 26:6; 30:20 reverse 25:25 right 8:12; 16:5; 23:19; 25:12; 26:16; 32:13, 21 rim 7:9 Rob 7:17, 19; 9:5; 14:8 Robert 18:21 RUSSO 3:11, 12; 19:12; 20:20; 24:5, 6; 28:20, 24; 31:17; 33:3, 5 sale 6:15 sales 4:19 salesman 4:15, 19; 25:10, 11 same 13:17, 18; 15:10; 17:1, 4, 7; 29:2 scenario 20:6 school 5:16, 19, 20 sealing 3:4 seeing 15:11 seem 11:22 self-employed 5:12 sell 6:20, 22; 17:14; 29:5; 32:16, 16, 19, 19 selling 29:13; 32:10 Rayxnond P. Mosnik August 9, 2001 send 23:3, 12 sands 20:1, 1, 3, 5 sent 17:13; 19:16; 21:23; 22:2, 10; 23:5, 16; 26:22 Service 21:24, 25 Services 18:19; 20:17 sat 15:20; 20:11; 22:18; 26:25; 27:1 sets 22:14 seven 14:20 sheets 20:23 shelf 28:9, 11, 13, 16; 29:10 shoes 21:15; 22:23; 27:1 shop 6:24; 21:11; 29:13 short 33:3 show 19:13; 20:21; 25:5; 26:11, 13; 28:18; 31:14 shy 5:15; 11:22 sign 31:20 signature 31:18, 20, 21; 32:4 signing 3:4 sit 12:10 sitting 22:24; 30:19 situation 14:23 Six 5:15; 24:1 size 8:3, 4 slip 27:14 snap-on 32:17 sold 14:2; 17:15, 16; 25:12, 15; 32:20 someone 19:18; 26:21 someone's 24:19, 24 somatime 18:13 somewhare 6:12; 10:19 sorry 30:7, 9 sound 11:13 South 5:20 spesk 24:21 spells 11:6 Spring 9:6; 10:13, 15; 12:12, 13, 18 springtime 12:20 standard 7:13; 20:9 standing 15:22; 16:2, 3 started 12:14; 18:1; 21:20; 23:10, 20, 22, 24 statement 9:18 statas 13:23 stenographer 3:14 steps 24:12 Stevenson's 24:10 stipulated 3:2 STIPULATION 3:1 stock 23:2; 24:16, 18; 27:3 stocking 24:24, 25; 25:19; 26:23, 24 stop 4:1 store 4:23; 5:12 strike 25:21 (3) MOSt- strike Ra3qnond P. Mosnik Augtlst 9, 2001 stut~ 10:3; 11:6, 9; 12:18; 15:13; 16:6 style 7:10 subject 6:4; 25:7; 26:4 subjected 20:9 summer 16:14; 17:25; 18:10, 13; 19:9 summertime 29:14 supposed 22:2, 7 sure 6:11; 12:9; 16:20; 18:6; 32:1, 2 swap 25:4 swore 21:24 sworn 3:9 T talking 7:2; 10:12, 22; 12:4; 13:7; 15:1, 2; 18:21 talks 25:25 tear 22:19 telephone 22:20 telling 18:3 term 10:6, 7; 12:13; 15:25 terms 9:20; 10:1; 11:10, 21 testified 3:9 testimony 20:25 theft 28:14 thinking 18:11 three 8:17; lO:2; 11:18; 12:21; 29:20; 30:7 three-year lO:6 tire 6:% 8, lo, 19; 7:9, 10; 8:14; 10:23, 23; 16:10; 22:1; 24:10; 32:24 tires 8:3, 4 titled 17:5 today 3:13; 4:8; 8:20; 12:5, 10, 11; 20:25; 29:18 together 23:3 told 9:11; 11:10, 21; 15:3; 19:6, 16; 23:4; 27:6 took 6:2; 19:8; 24:16 tool 32:17 top 6:13; 26:14 total 10:21; 11:21; 25:3 totally 20:12 trade 25:2 trial 3:7 try 3:19 trying 16:19 turn 28:12 turned 24:3 twice 21:25 Two 4:22; 5:8; 9:9; 21:2, 22; 22:10, 14; 26:14; 27:1, 4, 11; 30:5, 6; 32:8 tying 15:25 type 11:24; 27:3; 29:6 types 6:19 typical 21:3 stuff- York (4) typically 21:1; 22:12 Urn-hum 10:16; 12:2, 6, 18; 13:3, 9; 23:8; 25:13; 28:7; 29:1, 7; 30:10; 31:10 uncrated 17:12 under 4:4; 21:6 up 7:25; 9:1; 11:1, 11; 13:19; 14:24; 15:4, 12, 20, 25; 19:24; 22:20; 23:17; 27:24; 28:5 upper 20:10; 23:17 usage 25:19 use 17:7; 22:18; 29:4 used 16:23, 25; 17:3, 8, 11, 12, 14, 15, 16; 22:21, 23; 26:7, 8; 30:18; 32:10, 17, 19, 20, 22 uses 19:23; 26:21 usually 32:18 ¥ value 17:1; 32:24, 25; 33:1, 2 various 7:12; 31:8 vehicle 28:13 via 21:23 W waived 3:5 wants 8:5; 14:1 water 3:25 west 29:17 week 15:11; 22:22 weekly 15:12, 21, 24; 22:8, 17; 28:7 weren't 16:7 What's 5:14; 26:12 wheel 6:5, 19; 8:3; 32:24 whole 16:25 wife 24:13, 15 Willoughby 5:20, 20 wiper 27:1 wish 28:20 within 12:13, 18, 25; 13:7; 14:20~ 27:9; 30:1; 32:20 witness 3:8 wondering 5:11 word 31:2 words 3:16; 25:1; 27:22 work 8:18; 28:16 working 5:5; 16:6; 32:8, 9 werka 14:8 Worley 6:1; 15:7, 18; 16:6 worth 17:1, 4 write 15:12 wrong 19:24 X 22:15 Y Y 22:15 year 6:16; 9:6; 10:3, 15; 11:5; 15:4; 16:4, 15; 17:25; 18:10, 14; 19:9; 27:13; 30:1 years 4:13, 22; 5:8; 10:2, 2; 11:12, 12; 32:8 York 4:24 Mid-State Products Corp. v. John Backenstoes II d/b/a J&D Auto Services Fillus & McLucas ReportLqg Service, Inc. Lawyer's Notes MID-STATE PRODUCTS: CORP., Plaintiff JOHN BACKENSTOES, II, d/b/a J & D AUTO : SERVICES, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-0712 CIVIL TERM ORDER OF COURT AND NOW, this 30t~ day of August, 2001, upon consideration of Defendant's Petition to Strike and/or Open Default Judgment, and of the briefs submitted by the parties and the record established pursuant to the order of cot~ dated May 3 I, 2001, and following oral argument held on August 29, 2001, txhe petition is denied. J. Chad Moore, Esq. P.O. Box 61107 Harrisburg, PA 17106 Attorney for Plaintiff Peter J. Russo, Esq. 5010 Trindle Road Mechanicsburg, PA 17055 Attorney for Defendant BY THE COURT, J./~.esley Oler, J.,~ J. :rc IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MID-STATE PRODUCTS CORP., Plaintiff, VS. JOHN BACKENSTOES II d/b/a J & D AUTOMOTIVE, Defendant CIVIL ACTION - LAW NO. 01-00712 PRAECIPE TO DISCONTINUE AND SATISFY TO THE PROTHONOTARY: Please mark the Judgment entered against the defendant in the above captioned matter as discontinued and satisfied, with prejudice. OATE/z/r/O/ Respectfully submitted, P.O. Box 61107 Harrisburg, PA 17106-1107 (717) 896-2850 Attorney for Plaintiff AND NOW, this /t'~ day is marked discontinued and satisfied, with prejudice. PROTHONOTARY ,2001, the above captioned judgment R. Thomas Kline, Sheriffi who being duly sworn according to law, states this Writ is returned ABANDONED, no action taken in six months. Sheriff's Costs: Docketing 18.00 Poundage 1.67 Advertising Law Library .50 Prothonotary 1.00 Mileage 18.60 Misc. Surcharge 20.00 Levy 20.00 Post Pone Sale 15.00 Garnishee 9~:77 Advance Costs: 150.00 Sheriffs Costs: ¢~.}? 55.23 Refunded to Atty on 9/20/02 Sworn and Subscribed to before me this .~o %day of ~ 2002A.D. (~.. G©. ~7~-~'~--~ prothonotary So Answers; R. Thomas Kline, Sheriff ¥INYA'IZSHN~d WRIT OF EXECUTION and/or A'I-I'ACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) TO THE SHERIFF OF __Cumberland To satisfy the debt, interest and costs due _ _ NO. COUNTY: Mid-State Products Corp. from 01-712 CIVIL 1~X TERM CIVIL ACTION- LAW PLAINTIFF(S) John Backenstoes II d/b/a J & D Automotive, 95 Enola Road, Enola, PA 17025 __ _ DEFENDANT(S) (1) You are directed to levy upon the property of the defendant(s) and to sell pe~:sonal property (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of __ __GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is/are enjoined from paying any debt to or for the account Ct the detendant(s) and from delivering any property of the defendant(s) or othem~ise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/he r that he/she has been added as a garnishee and is enjoined as above stated. Amount Due interest Atty's Comm _% Arty Paid _ $109.30 Plaintiff Paid L.L. $ Due Prothy $i.00 Other Costs _ $ 411.30 Date: March 23, 2001 REQUESTING PARTY: Name J. Chad Moore, Esq. Address: P.O.Rox 61107 Harrisburg, PA i7106-1107 Attorney for: Plaintiff Telephone: _~717-8~_96-2850 Supreme Cour, ...... 76660 ,.,by: Curtis R. Long Prothonotary, Civil Division Depu~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MID-STATE PRODUCTS CORP., Plaintiff JOHN BACKENSTOES II d/b/a J & D AUTO SERVICES, Defendant CIVIL ACTION - LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set fort~ in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, be entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MID-STATE PRODUCTS CORP., Plaintiff JOHN BACKENSTOES II d/b/a J & D AUTO SERVICES, Defendant CIVIL ACTION - LAW O J- COMPLAINT AND NOW COMES Plaintiff, MID-STATE PRODUCTS CORP. ("Mid- State"), by and through its attorney, J. Chad Moore, Esquire, and files this Complaint and specifically avers the following in support thereof: 1. Plaintiff, Mid-State Products Corp. is a corporotion organized and existing by virtue of the laws of the Commonwealth of Pennsylvania with a principle place of business located at 1720 Bobali Drive, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant, John Backenstoes II d/b/a J & D Automotive Services, is a Pennsylvania resident with a principle place of business located at 95 Enola Road, Enola, Cumberland County, Pennsylvania. 3. This court has jurisdiction over this matter pursuant to 42 Pa. C.S.A. Section 5301(a) (2) and 42 Pa. C.S. Section 5517(b). 4. On or about April, 2000 Defendant contacted Mid-State about leasing a tire changer and wheel balancer for his automotive business. 5. Pursuant to Defendant's request, Mid-State obtained pricing information for Defendant regarding said tire changer and wheel balancer and submitted the information for approval of a third-party financed lease. 6. During the lease application and approval process, Defendant expressed an immediate need for the tire changer and wheel balancer and requested that the equipment be delivered prior to receipt of final approval for the lease. 7. Defendant repeatedly promised Mid-State that he would purchase the tire changer and wheel balancer outright if the lease was not approved. 8. Defendant previously maintained a good business relationship with Mid-State and was a customer in good standing at that time. 9. Based upon Mid-State's ongoing relationship with Defendant, Mid-State's desire to maintain a good relationship with Defendant and Defendant's promise to pay for the equipment if the lease was not approved, the equipment was delivered to Defendant on or about May 4, 2000, prior to completion of leasing arrangements. A true and correct copy of the invoice for the tire changer and wheel balancer is attached hereto and incorporated herein by reference as Exhibit A0 10. Defendant began using the equipment upon delivery and continued using the equipment for a period of at least several months thereafter. 11. Shortly after the equipment was delivered, Mid-State obtained approval for a lease on behalf of Defendant and forwarded paperwork to Defendant which needed to be completed by Defendant and sent to the leasing company in order for payment to be made to Mid-State. 12. Defendant claimed several times after being sent the aforementioned paperwork, upon inquiry by Mid-State, that he had sent the completed paperwork to the lease company all the while continuing to use the equipment, but no paperwork was ever received by the lease company. 13. When Mid-State demanded payment from Defendant, Defendant claimed that he no longer needed the now used equipment and that he now wanted to return it. 14. Despite repeated demands by Mid-State, Defendant has refused to pay for the tire changer and wheel balancer. 15. On or about June 5, 2000 through September 5, 2000 Defendant contracted with and purchased, on credit, various automotive parts from Mid-State. 16. Mid-State sent invoices to Defendant showing the item number and description of the part(s), the price of the part(s) and the total amount due. True and correct copies of said invoices are attached hereto and incorporated herein collectively as Exhibit B. 17. Despite repeated demands by Mid-State, Defendant has failed and/or refused to pay the delinquent balance due. 18. On or about September 30, 2000, Mid-State generated a Statement of Account for Defendant listing all credits and charges on Defendant's account from June 5, 2000 to September 5, 2000. A true and correct copy of said Statement is attached hereto and incorporated herein by reference as Exhibit C. 19. Mid-State has determined that the total amount due and owing by the Defendant is Ten Thousand Sixty-One and 50/100tbs Dollars ($10,061.50). 20. Defendant's failure to pay said balance constitutes unjust enrichment to Defendant and injury to Mid-State Products Corp. WHEREFORE, Plaintiff, Mid-State Products Corp., demands judgment in its favor for the past due amount of Ten Thousand Sixty-One and 50/100ths Dollars ($10,061.50) including reasonable attorney's fees and all costs related to this action. DATE: Respectfully submitted, ~E~squire Attorney ID# 76660 Legal Dept. of Powell, Rogers & Speaks P.O. Box 61107 Harrisburg, PA 17106-1107 VERIFICATION ~-STA~ PRODUCTS CO~. am authorized to make this verification on its beh~ and vefi~ that the ave~ents set foah in the foregoing Compl~nt are tree and correct to the best of my ~owledge or info~ation and belief. I understand that false statements herein are made subject to the pen~ties of 18 Pa.C.S, Section 4904 relating to unsworn falsification to authorities, MID-STATE PRODUCTS CORP-HBS 1720 BOBALI DR. HARRISBURG, PA 17104 J & D AUTO SERVICES **CGD-WKLY** ROUTE 11 & t5 ENOLA PA 17025 Bi-liP TO: ~ TO DILL CUSTOMER FOR EQUIPMENT FROM ACCU I~TERNAT~L 1026 1361 EP DATING 9:12 AM 1Z ACU@4402 TIRE CHANGER 1 Z ;~U~T~800 WHEEL BALANCE COPY ! PAGE 17 5/04/00 5/04/00 4~0~ 3425.00 342.5.00 3495, 00 3495.00 T COPY~ COPY! AUTOPRIDE. WHAT IS IT AND HOW CAN YOU GET IT? COPY! ~o~ 6920,00 · ~ 415.20 7335. ~0 CHRG INVOICE MID-STATE PRODUCTS CORP-HBS 1720 BOBALI DR. HARRISBURG, PA 17104 BILL TO: SHIP TO: J & D AUTO SERVICES **COD-WKLY** ROUTE 11 & 15 ENOLA PA 17025 *HOT SHOT** 10~6 I 1 PAGE 1 ILLCALL 8:04 AM 17 6/05/00 6/05/00* 504036 PLYMOUTH VOYAGER MINI VAN 4-153 2.5L ~JRL:~781~ CENSOR 34.48 17.24 17.24 RBC 13~75 ~XY SENSOR 99.63 44.92 44.9~ T~S MID-STATE PRODUCTS IS NOW PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTN- 62. 16 CORE TAX FREIGHT TOtaL b.% 16 CHRG ®MID-STATE PRODUCTS CORP-HBG 1720 BOBALI DR. HARRISBURG, PA 17104 BILL TO: SHIP TO: J & D AUTO SERVICES ROUTE 11 & 15 ENOLA PA 17025 HOT SHOT *** HOT SHOT *** 10~6 99 DM ILLCALL ~:12 AM U~ PLYHUUIH NELIRNI/K OMC 3~14 P/S ~ MID-STATE PRODUCTS IS NOW TER~4S PA'S NEWEST K AND N DISTRIBUTOR 21.94 21.94 CHRG ®MID-STATE PRODUCTS CORP-HBG 1720 BOBALI DR. HARRISBURS, PA 17104 BI. TO: J & D AUTO SERVICES ROUTE 11 & 15 ENOLA PA 17025 SHIP TO: HOT SHOT** 1 01RP R~KE 5HOE 6.00 PAGE 1 ~0.48 9. 14 9. 14 MID-STATE PRODUCTS IS NOW PA'S NEWEST K AND N DISTRIBUTOR COR~ 6. 00 TAX TOTAL 15. 14 CHRG MID-STATE PRODUCTS CORP-HBS 1720 BOBALI DR. HARRISBURG~ PA 17104 BILL TO: J 8,. D AUTO SERVICES ROUTE 11, & t5 SHIP TO: ENOLA PA 17025 ** HOT SHOT *** HOT SHOT *** 10;B6 OHN I LLC LL 0: 18~ AM 1 PIT 803660 CS G. WND/WAS t STI PSI6~ OIL PRS SW PAGE 1 6.27 6.27 6.27 12. I1 5,55 5.55 MID-STATE PRODUCTS IS NOW PA'S NEWEST K AND N DISTRIBUTOR SUaTO~A~ 11.88 CORE TOTAL 11. 82 CHRS MID-STATE PRODUCTS CORP-HBG 1720 BOBALI DR. HARRISBURG, PA 17104 SILL TO: SHIP TO: J & D AUTO SERVICES ROUTE 11 & 15 ENOLA PA 17025 **-10:00 TRUCK***lO:00 TRUCK*** 00 1 EXI 35-60 1 EXI 70DT-50 RAY 501RP 1 RAY RPD377M SAU ~-17A 2 SWS S39 WIX 160 PICK UP CORES } WE'G~ 10:~5 AM ALL ALL B~TTERY 5.00 -US-50 5.00 BROOKE SHOE 6.00 DSC BRK ST SURE FIT 2PK WD40 150Z OIL FILTER 78.95 68.95 20.48 30.95 4.19 45.95 45.95 33.25 33.25 ~.14 9.14 13.81 13.81 3.87 7.74 6.87 ~.10 25.~0 MID-STATE PRODUCTS IS NOW PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL 135.09 16.00 151.09 CHRG ~tD-S-I-ATE PRODOCTS CORP-HBS 172_0 BOBALI DR. HARRISBURG, PA 17104 BILL TO: SHiP TO: J & D AOT[] ~ .... ,~ERV I ~ES ROUTE tl & 15 ENOLA F-',F-t 17025 MID-STATE PRODUCTS IS NOW TE~US PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL '""" 25 CHRG MID-S~A]E PRODUCTS CORP-HBG I'720 BOBALI DR. HARRISBURG, PA 17104 BILL TO: SHIP TO: · -ER V J. CE,, J & D AUTO q- ' ?"-~ ROUTE 11 & t5 E~IOL~ PA 17025 ~'* HOT' SFIO'f *** HOT SHOT *** - 93 CHEb~DL~:. C+K ~5~0-35~ P'/O 2 ~P ~234 GASKET ] MOM 37043 ~HOCK ABSR t OC~ 7801-S ALTERNATOR 40.00 PAGE 10.17 4.32 8.~4 59.93 29.97 2'~. 189.7i 85. ~7 85~ 37 MID-STATE PRODUCTS IS NOW TERMS PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL 1 ~]:3. ~ coR~ 40.00 T~X LABOW MISC. FREIGHT 163. 91;] CHRG TOTAL tvlID--STATE PRODLJCTS CORP-HBG 1720 BOBALI DR, HARR I SBU R["~, PA ].7t04 BILL TO: SHIP TO: J & D AUTO SERVICES ROUTE 1] & ~ ENOLA PR~ 17025 F AGE. ]. · **HOT SHo'r***HOT SHOT*** ~; ISUTU RODE[] V 6"-31 ~5 ~. ~L SOHC 1 STI SG5 OXY SENSOR 36.98 18. 12 I8. 12 MiD-'STATE PRODUCTS tS NOW PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL lB, 12 18. i2 CHRG RTL PRODUCTS CORP-HBG !720 BOBALI DR~ HARRI SBURG~ PA 17104 BILL TO: SHIP TO: J & D AL)TO SERVICES R[DU-i"E ! I & i5 ENOLR PA i7025 *'*HOT ORDER NO MEMO ~ DOR b / 6--~07 BOLT Mi]D-STATE PRODUCTS IS NOW PA'S NEWEST K AND N DISTRIBUTOR SUI~TOTAL 9. 51~1 CORE TAX TOTAL ~. 50 CHRG MID'~-S,A]E PRODUCTS CORP-HBG 172~Z BOBALI DR. , ~4RR.[ SB[JRG. PA 1'7104 BILL TO: J &- i9 AUTO SERVICES ROLiTE 1t ~, t5 SHIP TO: HOT SHOT ~'** FID]' SHOT *** "~,/t0/00 DVL. B[..UDVL BLbE DEVIL MID-STATE PRODUCTS IS NOW PA'S NEWEST K AND N DISTRIBUTOR 2% I 0th net 30th. 1.5% per month ser~ic~ cha~ge o~ past due amounts, $25~00 NSF check charge. All Collection & atton~y costs ate the custo~ responsibility. S~ial o~ders ase non-r~arnabl¢. All warranty claims will be prcessed according to eah manufacturer's warranty peEcy. SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL 59.95 NID-STATE PRODUCTS CORP-NBG 1720 BOBALI DR. HARRISBURG, PA 17104 J & D AUTO SERVICES ROUTE 11 & 15 SHIP TO: ENOLA PA 1 ~0c~ ~**HOT SHOT***HOT SHOT*** PAGE 1 ~B/ 211 NJ t ~£..c, WILLCALL 11:54 .t1026 AM 17~6/10/00 06/10/00- 505776 .~ ktRD M DSIZE LTD V6-~32 3~8L i FEL VS50212C VLV CVR ST 11.59 5.27 5.27 COPY !COPY~ ~IID-STATE PRODLIGTS IS NOW T~U~ PA'S NEWEST K AND N DISTRIBUTOR CORE FREIGHT TOTAL 5.27 5.~'7 CHRG MID-STATE PRODUCTS CORP-HBG 1720 BGBALI DR,, HARRISBURG, PA 17104 SHIP TO: J & D AUTO SERVICES ROUTE 11 & 15 ENOLA PA 17025 ~-** HOT SNOT *** HOT SHOT *** SOLO B~. ORD. [ Mr-C PAFPr 91 AMC E:AGI_E 1 ~P - ~38 GASKET 1 AP 9~53 . GASKEET 1 ~P 4~74 PIPE COP~ ~ PAGE i AM 17 6/13100 6113100* 5'06275' w-' 997 =.01- DGHC 1. Sa 0.80 0,80 2.97 1.2~ 1.2~ 2~.~1 102.95 !COPY' MID-STATE PRODUCTS IS NOW ~s PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL CORE TAX LABOR/M~SC, FREIGI-Fr TOTAL 105.01 1.05.01 .THRG NID-STATE PRODUCTS CORP-HBG 1720 BOBAI_I DR. HARRISBURG, PA 17104 J & D AUTO SERVICES ROUTE 11 & 15 ENOLA PA 17025 SHIP TO: ~,* HOT SHOT *** HOT SHOT *** 1 STI FD478X IGN COIL COPY ~ PAGE 17 6/14/00 6~ 14/00 Vb- g~ 5~ ~L, UHV 75~ 41 ~6. 95 36.95 !COPY! COP Y . MID-STATE PRODUCTS IS NOW T~S PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL CORE TAX LABOR/ML~C. FREIGHT TOTAL 3G. 95 MID-STATE PRODUCTS CORP-HBG 1Z20 BOBALI DR. HARRISBURG, PA 17104 J & D AUTO SERVICES ROUTE 1t & 15 SHIP TO: ENOLA PA 17025 *** HOT SHOT *** HOT SHOT *** COPY ~ ~ I w ~ COPY ~ PAGE 1 t7 6/15/00 6/J.¢/0~ 506966 34 ,_',, ;].L 179. ~1 80.41 80.41 COPY ! COPY ! MID-STATE PRODUCTS IS NOW T~S PA'S NEWEST K AND N DISTRIBUTOR COP ~,{ warranty claims will ~ prc~ accodi.~ to ~ m~,uf~s w.~.~ ~licy. SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL O0. (~ 1 ~5.00 l~.~b. 41 JHRG MID-STATE PRODUCTS CORP-HBG 1720 BOBALI DR. HARRISBURS, PA 17104 BILL TO: J & D AUTO SERVICES ROUTE 11 & 15 ENOLA PA 17025 **'10:00 TRUCK***lO:00 TRUCK 1 CRC 05061AP 1 SAV ~ 19A 1 SAV 22-20B WIX 140 SHIP TO: WE~T ~9:57 AM [ OE~CRIPTI~ I CORE EA. 12 OZ. FU SURE FIT - SURE FIT DIL FILTER PAGE 1 4.33 2.93 2.93 3.87 3.87 4.59 4.59 4.09 2.05 24.60 TERMS MID-STATE PRODUCTS IS NOW PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL 35.99 35.99 CHRG 1720 BOBALI DR. HARRISBURG~ PA 17104 J & D AUTO SERVICES ROU'['E 11 & 15 SHIP TO: ENOLA PA 17025 ** HOT SHOT *** HOT SHOT *** t026 18 DIq JOHN WILLCC~LL I: I / AH 4 D DGE C RAVAN NINI VAN ~ A-1 6i-3004 A--1 CARDONE 7.00 COPY ~ PAGE :L 79.99 29.99 59.98 COPY ! COPY MID-STATE PRODUCTS IS NOW TE~MS PA'S NEWEST K AND N DISTRIBUTOR COPCt! w~,~,~, clai,,~ wm '~ pr~,~ ac¢onding to eah ma~ufar.~r'~s wa~ca.~ policy. SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL 59.98 14.00 7,7. '::4,q 7HRG MID-STATE PRODUCTS CORP-HBS 1720 BOBALI DR. HARRISBURG, PA 17104 J & D AUTO SERVICES ROUTE Ii & 15 SHIP TO: ENOLA PA 170~.~ ***HOT SHOT***HOT SHOT*** PAGE 1 91 CHEVROLET CORSICA 4- 34 2.2L 1 A~I 58-~8 WATER PUMP 4.00 36.31 t~. 48 17.48 COPY COPY COPY MID-STATE PRODUCTS IS NOW TERMS PA'S NEWEST K AND N DISTRIBUTOR COPY ! TAX FREIGHT ;21. 48 ]HRG TOTAL ~MID-STATE PRODUCTS CORP-HBS 1720 BOBALI DR. HARRISBURS, PA 17104 BILL TO: J & D AUTO SERVICES ROUTE 11 & 15 ENOLA PA 17025 Acc~.o ~.E~ ~B~ o.~.oI ~1026 21 ~5 2Z ATO~ADVERTiSING SHIP TO: PATRIOT NEWS ADVERTISING FOR APRIL AND MAY 2000 M~ I w~'~ ~8:44 AM ADVERTISINS PAGE 1 40. O0 80, 00 MID-STATE PRODUCTS IS NOW TERMS PA~S NEWEST K AND N DISTRIBUTOR SUBTOTAL 80. 00 CORE TAX LABOPJ MISC. FREIGHT TOTAL ~0. 00 CHRG MID-STATE PRODUCTS CORP-HBG 1720 BOBALI DR. HARRI SBURG~ PA 17104 BILL TO: J & D AUTO SERVICES ROUTE 11 & 15 SHIP TO: ENOLA PA 17025 ~ I"~o{O~T.~SHO~-o~*'* Hc~Oo~NoSHO~T ~'*~o / , , F'~GE ~0 CHEVROLET SiO, T10 P/U~ BLAZER V~-~2 4.3L 1 AP 447&~ PIPE 3&. 34 13.8& 13.8~ TERMS MID-STATE PRODUCTS IS NOW SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL 1B. 86 I~.R~ ~HRR MID-STATE PRODUCTS CORP-HBG 1720 BOBALI DR. HARRISBURG~ PA 17104 BILLTO: ,$ & D AUTO SERVICES ROUTE 11 & 15 SHIP TO: ENOLA PR 17025 ~** HO~T SI~OT **,* HOT I~HI~T **,* 90 CHEVROLET S10, T10 P/U~BLAZER 5 RAY 9932N NUT ~ 29 1.47 7.35 TERMS MID-STATE PRODUCTS IS NOW All Collection & attorney costs a~e ~ cuStomea~ mspon~bi lliy, Special c~L-rs ar~ non-reimrnabl¢. All warranty claims will be prcess~d according to eah manufacturer's wa n'anty policy. SUB-TOTAL CORE TAX LABOPJ MISC. FREIGHT TOTAL 7.35 7.35 CHRG MID-STATE PRODUCTS CORP-HB~ 1780 BOBALI DR~ HARRISBURG~ PA 17104 BILL TO: J & D AUTO SERVICES ROUTE ii & 15 SHIP TO: ENOLA PA 17025 e*~*, HO~T SH~]T **,* HOT SH[~T *** [ 102G C5 DM O~ iN ILLCA~ L 87 CHEVRDLET CAVALIER I (]CA 6312MS . STAI~TER 1 PM~o~ [17 C/1¢/00 C/I0/00~ ~074~0 30.00 115.77 52.10 52.10 T~S MID-STATE PRODUCTS IS NOW SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL 52.10 30.00 82.10 CHRG MID-STATE PRODUCTS CORP-HB$ 1720 BOBALI DR. HARRISBURG, PA 17104 BILL TO: SHIP TO: J & D AUTO SERVICES ROUTE 11 & t5 ENOLA PA 17025 **HOT SHOT***HOT SHOT*** PAGE 1 i026 27 JL ILLCAI_L 6:$4 AM 17 6/19/00 6/19/~10- 507/01 1 OCA 3213S STARTER 50.0~ 205; 42 92.44 92.44 MID-STATE PRODUCTS IS NOW TERMS PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL 9~, 44 CORE o0, ~[d TAX LABOR/MISC. FREIGHT TOTAL i4~, 44 CHRG MID-STATE PRODUCTS CORP-HBG 1720 BOBALI DR. HARRISBURG, PA 17104 J & D AUTO SERVICES ROUTE 11 & 15 SHiP TO: ENDLA PA HOT SHOT *** HOT SHOT *** ~ COF'Y ! ) ~"~ WIL[~C~LL 10:08 AM AP' ~8146 PIPE 31.55 13.41 RA~ 47~RR BRAKE SHOE 12.00 41.15 18.36 2 RAY i0~081 DRUM 112.49 5~8 !COPY! 101. ~6 ~9.20 COPY MID-STATE PRODUCTS IS NOW ~s PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL 152.33 16,4.3.3 ]HRE MID-STATE PRODUCTS CORP-HBG 1720 BOBALI DR,, HARRISBURG, PA 17104 SHIP TO: J & D AUTO SERVICES ROUTE 1t & 15 ENOLA PA i7025 ** HOT SHOT *** HOT SHOT *** ~-~¥ ,J ~. J ,,~o~.vI o.~..o / .E~ I ~G~ 1 1076 2~i ~l~i .T~MN /WTI I ~11 1 '37 85 CHEVROLET BLAZER FULL SIZE ! RAY BC~32~4 BR~ CABLE COPY! PARF 1 .17 ~/~/00 G1~0100~ 50~-~ 57.1~ 25~49 25.49 COPY ' COPY MID-STATE PRODUCTS IS NOW PA~S NEWEST K AND N DISTRIBUTOR SUB-TOTAL 25. 49 CORE TAX 25. ~9 CHRG MID-STAlE PRODUCTS CORP-HBG 1720 BOBALI DR, HARRISBURG, PA 17104 BILL TO: SHIP TO: J & D AUTO ,~E~,VIu~:S ROUTE 11 & 15 ENOLA PA 1'70~5 ~** HO'T SHOT *** HOT SHOT *** 1102b ~.c. DN ~iNA ILLCALL 2:58 i-M ~ C~E. VROLE ~ L;~VALIER 1 MUR 251136 CMPRSSoR R i0,00 PAGE 1 i7 6/21/00 6y c~l/0~* 508674 140.39 140.39 TERMS MID-STATE PRODUCTS IS NOW PA'S NEWEST K AND N DISTRIBUTOR SU~-TOTAL i 40.39 CORE 10.00 TAX LABOFU MISC. FREIGHT TOTAL I5~1. d, 9 UF.IRG t'7~O BOB~LI DR. HARRIStURG, PA 17104 BILL TO: J &- D AUFO SERVICES ROUTE ].1 8- I5 SHIP TO: e.~lO:E~O TRUE;K***lO:00 TRUCK PICK UP CORES !A'~,cb ,:,3 · :t:] RC IO50C, 1AP A. lC: OZ. F'U i RAY 4'73RR BRAKE SHOE i~.00 ~. RAY 6~6RP BRAKE ~HOE 4 SAV 22-t 6A ~URE I SAV 22-.20C SURE FIT 2 WES 891BP HLBN LAHP 12 WIX 158 OIL FILTER 41. 15 I8.36 18.36 50.48 22.52 22. 52 S, 87 15.48 4.59 4. 59 t5.46 5.15 10.30 3,, 79 1. 89 22. 68 4.09 ~. 05 B4.60 MID-STATE PRODUCTS IS NOW T~S PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL ........ C9 10.00 ~7~.&9 CHRS MID-STATE PRODUCTS CORP-HBG 1720 BOBALI DR. HARRISBURG, PA 17104 J & D AUTO SERVICES ROOTE 11 & 15 SHiP -fO: ENDLA PA 1 tO~, ***HOT SHOT***HOT SHOT*** ! COPY ' ~ COPY ~ ~ ~2~ ~ '"~ ~^~ ,~ 17 6 /00 6/22/00* 50896~ PAGE 1 0. S7 5.70 !COPY! COPY MID-STATE PRODUCTS IS NOW TERMS PA'S NEWEST K AND N DISTRIBUTOR CO~ TAX LABOR/MISC. FR~iIGHT ~. 7g 5. 70 CHRG J & D AOTO SERVICES ROUTE Ii & 15 MID-STATE PRODUCTS CORP-HBG 1720 BOBALI DR. HARRISBURG, PA 17104 ,SHIP TO: ENOLA PA 17025 ***HOT SHOT***HOT SHOT*** PA6E 11026 235 JL 8.~,o AM 17 6/ 3100 6/P310~* 5~4 8~ CHEVROLET CAVALIER V&-173 2.8L t STITH~i ~HRTL SN~SR 51.82 2~.3~ 25~39 1 STI TXS TEMP SENSR 30.97 14.75 14.75 ~COP¥! !COPY! COlbY TERMS MID-STATE PRODUCTS IS NOW PA~S NEWEST K AND N DISTRIBUTOR C 0 P Y~ wanan~ claims will b~ p~essed accot~ng to eah manu£ac~ur~s warranty policy. SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL 40.14 14 £HRG MID-STATE PRODUCTS CORP-HBG 1720 BOBALI DR. HARRISBURG, PA 17104 J & D AUTO SERVICES ROUTE ii & 15 SHIP TO: ENOLA PA i7025 *** FIOT SHOT *** HOT SH(~T *** ~_1026 F-'361 JJ WT RAIl q..'lg AM 1 A--1 58--341 WA'I'ER PUMP 4.00 COPY ' COPY ! COPY ! TERMS MID-STATE PRODUCTS IS NOW PA'S NEWEST K AND N DISTRIBUTOR COPY ! SUB-TOTAL 18. 02 CORE 4.00 TAX FREIGHT TOTAL ,~r~. 02 .;HRE MID-STATE PRODUCTS CORP-HBG 1'720 BOBALI DR. HARRISBURG, PA 17104 J & D AUTO SERVICES ROUTE 11 & 15 SHIP TO: ENOLA PA 17025 e** HOT SHOT *** HOT SHOT ~** PAGE 1 COPY ~ ~COPY~ MID-STATE PRODUCTS IS NOW TEr~MS PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL lO. 04 4.00 20.94 CHRG BILL TO: SHIP TO: i "Mb ~t4ibl BALI. JDIN] 2% 10th nel 30~h. 1.5% per month ~wice charge on pa~t dae amounl~, $25.ffi NSF check charge. All Collection & ailor~y costs arc the cu~tomc~ respomibillty. Special ~ are non-mturmblc. All warranty ¢laim~ will be prcc~$e~ acco~ing to cab manu£acmrer's warranty policy. SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL BILL TO: SHIP TO: SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL SHIP TO: SUB-TOTAL CORE TAX lABOR/MISC. FREIGHT TOTAL MID-STATE PRODUCTS CORP-HBG 1720 BOBALt DR. HARRISBURG, PA 17104 J & D AUTO SERVICES ROUTE 1I & 15 SHIP TO: ENOLA PA 17025 *** HOT SHOT *** HOT SHOT *** i,[~=E. ~4,:~[ JM~ WILLCALL g:06 AM 94 GE(] METRO I RAY RPD420M DSC BRK ST COPY. PAGE 1 17 7/01/00 07/01/00. 511297 36.09 16.11 16.11 COPY !COPY! MID-STATE PRODUOTS IS NOW PA'S NEWEST K AND N DISTRIBUTOR · L _)F Y. SUB-TOTAL CORE TAX LABOR/M~SC. FREIGHT TOTAL 16.11 16. 1.1 7HRG 1720 BOBALI DR. HARRISBURG, PA 17104 BILL TO: SHIP TO: J & D AUTO SERVICES ROUTE 11 & 15 ENOLA PA 17025 *** HOT SHOT *** HOT SHOT *** wE~.~ ~9:25 AM PAGE 1 / //~$/e0 tl03100 =114 9.87 3.71 3.71 MID-STATE PRODUCTS IS NOW TERMS PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL d, /1 3.71 ~"MID-STATE PRODUCTS CORP-HBG 1720 BOBALI DR. HARRISBURS~ PA 17104 BI. TO: J & D AUTO SERVICES ROUTE ll & 15 SHIP TO: ENOLA PA 17025 *-10:00 TRUCK***10:00 TRUCK EX~:70DT-50 --~LAMP~c~"~ I UB-50 PAGE 17 7/07/00 7/07/00- · 1 . ~3 0.5~' 1 . 04 1.56 0~57 5~ 70 : TERMS SUB-TOTAL CORE TAX I~BOR/MISC. FREIGHT TOTAL 1720 BOBALI DR, HARRISBURG, PA 17104 BILLTO: SHIPTO: J & D AUTO SERVICES ROUTE 11 & 15 ENOLA PA 17025 ** HOT SHOT *** HOT SHOT *** 1026 46 WILLCALL 3:01 PM ~1 j~o.o J7138~ JRDTR HO~E 1 DAY 71389 RDTR HOSE PAGE 1 17 7 0 7/07/00* 512684 23.18 9.27 9.27 MID-STATE PRODUCTS IS NOW TEEMS PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL CORE TAX FREIGHT TOTAL 21.96 21.96 =HRG 1720 BOBALI DR. HARRISBURG, PA 17104 BILL TO: ' SHIP TO: J & D AUTO SERVICES ROUTE I1 & 15 ENOLA PA 17025 **HOT SHOT***HOT 1026 49 TN ILLCALL 8:13 AM [ ~ CI RYGLER N YORI~IiR 1 RAY RRD591M DSC BRK ST PAGE 1 17 7/17/00 7/17/00- ~514~72 34.00 15.17 15. 17 MID-STATE PRODUCTS IS NOW T£R~S PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL CORE TAX LABOR/MISC. FREIGHT TOTAL 15.17 15.17 CHRG MID-.STATE PRODUCTS CORP-HBG 1720 BOBALI DR. HARRISBURG, PA 17104 BILLTO: SHIPTO: J & D AUTO SERVICES ROUTE 11 & 15 ENOLA PA 17025 **-10:00 TRUCK***10:00 TRUCK Ah' RRD591 fit 4 SAV 22-16A SAVE,:- 18A ~E~o ~"~ J0~02 AI,J ¥ SC BR~ SURE F I T SURE FIT PAGE 34.00 15. 17 15. 17 3.87 15.48 3.87 7.74 MID-STATE PRODUCTS IS NOW TERMS PA'S NEWEST K AND N DISTRIBUTOR SUB-TOTAL J,~,. d9 CO~E TAX FREIGHT 3~. 39 CHR TOTAL 0'-4