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HomeMy WebLinkAbout10-3809NWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of Cumberland NOTICE OF APPEAL FROM I I MAGISTERIAL DISTRICT JUDGE JUDGMENT COMMON PLEAS No NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District Judge on the date and in the case referenced below. Advance Acceptance / All Lines Leasing 09-3-04 omas A. Placey "IT STATE ZIP CODE 100 Prairie Center Drive Eden Prairie MN 55344 DATE OF JUDGMENT IN THE CASE OF (Plaintiff) 0511112010 Robert E. Diehl aka Redco ~ (Defendant)' Advance Positioning System, Inc., et al DOCKET No. SIGNATU APPELL Y OR AGENT CV-69-10 This block will be signed ONLY when this notation is required under Pa. If appellant was CI mant (see Pa. R.C.P.D.J. No. 1001(6) in action R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the Magisterial District Judge, will before a Magi erial District Judge, A COMPLAINT MUST BE FILED operate as a SUPERSEDEAS to the judgment for possession in this case. within twenty (20) days after filing the NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before Magisterial District Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Robert E. Diehl aka Redco appellee(s), to e a complaint in this appeal lName of appellee (S) (Common Pleas No. 16 nib 4 C ) within twenty (20) days after service of rul ere ud ment of non pros. I-- ,----Signature of a ellant or attorney or agent Thom illy, Esq. RULE: To Robert E. Diehl aka Redco appellee(s) Name of appellee (5) (1) You are notified thet a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon ycxj by personal service or by certified or registered mail. (2) If you do,n.ot tile a complaint within this time, a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU. (3) The dale of service of this nale if service was by mail is the date of the mailing. Date: Signature of Prothonotary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WI H THIS NOTICE OF APPEAL. AOPC 312-05 ALIF N I ' T TIE M, r ?'CtsM v 2010 ATI, -8 P I : i I e ft /cx,.3l ?? ?Y3at.3 1?P.R.05'2010 13 952 5:.6 7321 GOMMONWEALTH Ol+' PENN?ANIA COUNTY OF; c~?a? ADVA'.4-1E AG4EPTAN44 COR?. #1653 ?.002/010 CW COMPLAINT W9. C1iit. 04-3-04 MCW NnW %on, 7.'a!7>KAS A. PLACaY Ataraea: 104 a ISPORT=G lli eaffi cimmA, Tedaphene: (717) 761-8230 =LL RU PA 17050 DATE FILING COSTS $ ? U?+1'? a h PAS n /91) POSTAGE $ !L--Og 51/to SERVICE WSTS $ 65.40 ?Lt a rip CONSTABLE ED. S O«O 0 ?I 9? !(b_ TOTAL $ __ _ cta'? 60 _ 01 ,W 11b PLArr if and AppA1EBS r Robert E 1*111 akA REDCO 5W R$DW ID inc, 811014, PA 17025 L ? DEPENDANT: t andAol7rtW 1*4 Dttcrter Wp Laft9lvtcnai, tnc , tam ft"ilOWD PA 17ft14 IN0001116PA IM4 L. J Docket No.aq. am W-11 0 Date I=lied; DI V- alt- ul 0 ,ADVANCE Acerpimme(AI&Llaes Leaft mien of, First Watarn Hank a ttraot IN Pra" Ceetlor Deis ? ? America ?den)'r'aurria, N V SS l4 16m w 118c' Terrree olatAe, K6 6061 Pa,R.G.P.D.J. No. 206 sets forth those =m recoverable by the prevailing party. TO THE DEFENDANT: The above named plaaintlff(s) asks judgment against you for $ c? C,66 together with costs upon the following claim (Civil fines must include citation of the statute or ordinanoe violated): I Arowod Dwmbm 21W Pis m ft Re m E DWt (Dieht) derided t* mpUcv his manual SotlDa TOTAI, STA1710N (SU%W Egmpsaad) void< % (IROWM Br•ATX" too drew 9=14 be coo by oaa poam, 2 Aititl seed Botlda'e Naetb Amatka web efts W aback equiVwwtt ead ftd a m1 ablo daQw. Diabi aellad oa SetdWda a tie ia?tklag •y?own ay abeam a V Mdw ft dw pasUpo, OW above Adwwae Puaitiroelgp Syyaame (AnS I mwd tiwaa saimtlas from bb 4 nIasil, 7anwaY 2P,.1Q037o ftaatvey aAuPa 1P y 3 pssipatpi Rrr o+ra 1?amly Piva flottemd Dp1143 inalvding >naade w t+uuaing, A dorm psiymtat vies Diiald paid APB. Dinh! aw *d AM APe did not fid6ili ac epmm a st A?% d1d tlat 4btiver ail ffia agakmaut (KK-8AMft3). APS ad6d 06 day aft D1abI pi" vp the 88X-3 pocTape and laid ldtp lbe taim bad quit nail *q mall not do the bnde as trap ms. A" n 6taoe to ddiva alt to atpapaasat ad tba Iterdo as ?6, 4 AUYANCE Aaamtttaos pn • 3O maalb "A tq L1", T1W laa1 ft Moo tbaa is owed in (be S M1608 PNIM84 7 Diehl bd to nine a Set eye( to Wrq*1e saws moautnin sunay work =', % x&W m twin emd l nIA all of a mo 11461 hN IW O JO W M Yest oflls" ww aty doo no Wm P6*Mftft t dDalmdrats and sfitsb % ip o( ifiawb t dit ae o0.` 9 Ialiahl adn for raiOtlyn?protl!?tVtfBkt of'Po*d Caete and }web" dim "ae I' r rY` / _ ifyr 9s)**a !W AsOft that the facts sat forth In this complaint are true and correct to the best of my knowledge, in ormation, and belief. This statement Is made subject to the lies of Awa Section 4904 of the Crimes Code (18 PA. C.S. § 4904) related to unswom falsification t . CONTACT P71OU NO.- 7/7- 57 ti -@F00 o or ut ar ed Agertk) ?lalnt141"s Amtmey: Address; Te1®phone: IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, YOU SHOULD NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUDGMENT MAY Be ENTERED AGAINST YOU SY DEFAULT. If You have a claim against the plaintiff which Is within magisterial district judge jurisdiction, and which you intend to assert at the hearing, you must file ft on a complaint form at this office at least five days before the date set for the hmring. K you are disabled and ratquire a relesonable accommodation to gain access to the Maghneriat District Court and its services ple mm contact the Magisterial District Court at the above address or telephone number. We are Unable to provide transportation. AQPC 30SA-0s Pay. 19. 2010 9:20PM COMMONWEALTH OF PENNSYLVANIA r nI INITV nF• CUMBERLAM Map D;st. Ne 09-3-04 MW Narnv Hon. THOMAS A. PLACE'Y Address: 104 S SPORTING HILL RD laCHA.NICSBURG, PA reteohone: (717) 761-8230 17050 DIVI...OF FIRST WESTERN BANK be TRUST. 100 PRAIRIE CENTER DRIVE EDEN PRAIRIE,.HN 55344 No, 0100 P. 2 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS 'rROBfiRT. E . DIMM AKA REDCO 5 0 0. REDCO DXM ENOLA, PA 17025 L_ ,J VS. DEFENDANT; NAME and ADDRESS (ADVANCED POSITIONING SYSTEMS, INC.7 184 BUTCHER SHOP LANE ELLIOTSBURG, PA 17024 L_ J Docket No.: CV- 0000069 -10 Date Filed: 1/28/10 THIS IS TO NOTIFY YOU THAT: Judgment; FOR PLAINTIFF (Date of Judgment) 5/11/10 ® Judgment was entered for: (Name) REDCO ASSOC. INC _ Judgment was entered against: (Name). ADVANCE ACCEPTANCE/ALL LINES LRA,SIN in. the amount of It 8,225.0 Defendants are jointly and severally liable. Damages will be assessed on Date 8 Timp a This case dismissed without prejudice. Amount of Judgment Subject to Att achment/42 Pa.C.S. §8127 Portion of Judgment for physical damages arising out Of residential lease. Amount of Judgment $ 8.000.00 .Judgment Costs $ 225.0 Interest on Judgment $?? YO Attorney Fees $'0 Total $ , 8,225.00 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTERTHE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK Of THE COURT OF COMMON PLEAS; CIVIL DIVISION.. YOU' . MUST INCLUDE A COPY. OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM.WITH YOUR NOTICE OF APPEAL EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT,JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY 13E ISSUED-13Y THE MAGISTERIAL DSTRICT JUDGE . UNLESS THE.JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ' Date _ I cert?fy.that this is.a true r` Date :opy of the record-ot the ,?,., Magisteriai District'Judge gs containing the judgment:. Magisterial District Judge My commission expires first Monday Of January,: • 20.16 SEAL AOPC 315.07 Ta mo nn Yl7nniplr?. C /71 /7 A 7. CA. AA .T1f ' MAY-19-2010 23:33 96: P.02 •MaY.19. 20 10 9:22PM REDCO ASSOC., INC., Plaintiff V. ADVANCED POSITIONING SYSTEMS, INC., MICHAEL TOROK, ADVANCE ACCEPTANCE/ALL LEASING, SOKKI-A NORTH AMERICA Defendants No. 0700 P. 6 0000jVf`0,M41A4 District Court 09-3-04 CV-0069-10 SUMMARY OF FACTS Plaintiff purchased from Advanced Positioning Systems (APS) a Sokkia North America (SNA) "SRX-3 Robotic Total Station" package for $25,222.70.1 Advance Acceptance (AA) financed $20,375.75 of the purchase for Plaintiff.Z Plaintiffs complaint asserts (1) Defendant APS did not fulfill the terms of the agreement; (2) Defendant APS did not deliver all the equipment detailed in the invoice; and (3) Defendant AA is overcharging in the financing per the finance agreement.3 The complaint and testimony failed to show that Defendant SNA is in any way in breach of an expressed or implied contractual agreement; therefore, judgment shall be for that Defendant in lieu of a dismissal that is not provided for by rule. DISCUSSION The burden is every civil case is on a plaintiff to show that a defendant has breached an owed duty, which has resulted in measurable but mitigated damages. In this case the only remaining Defendant is APS. The allegation is that Defendant did not provide adequate instruction on the use of the SRX-3 and that not all of the purchased equipment has been delivered. Plaintiff is not a full time professional user of this equipment. The sole purpose of this $25,000.00 plus purchase was to accurately survey approximately 75 acres of mountain ground using the hyper-accurate hardware and software of the SRX-3. Plaintiff has been able to use the hardware and has obtained additional training at his own expense on the provided non-SNA software, but is still unable to use the complete package of the total station. ' Michael Torok is president of APS; however, no testimony showed he acted beyond his corporate capacity and by application of rule judgment shall be in his favor. ' AA did not appear at trial; therefore by application of rule judgment shall be in favor of Plaintiff in the requested amount of $8,000.00. 3 As Defendant AA is subject to a default judgment this last issue shall not be addressed. MAY-19-2010 23:33 97: P.06 ,May. 19, 2010 9:22PM No, 0100 P. 1 In looking at what training Plaintiff was to receive the contract is the first place to look; however, the contract is silent. The parties both agree training was part of the agreement but neither could be specific on an objective standard (time, proficiency or other gauge) to measure the training that was provided.4 Plaintiff would have the Court use the subjective standard that he did not learn how to successfully use the entire package; however, it is Plaintiffs burden and a subjective standard is insufficient. Plaintiff certainly knows people who are proficient in the equipment's use, Those people did not testify as to their training or time spent on the job becoming proficient, which would have minimally set an objective standard. Plaintiff also requests the value of a battery not provided by the terms of the agreement. This request requires Plaintiff to have fulfilled the terms of the agreement, which he has not done. Plaintiff purposefully and intentionally withheld full payment on the state sales tax. Both parties have not complied with the terms of the agreement, and neither is entitled to full enforcement. Judgment on the remaining claim is in favor of Defendant APS as Plaintiff has not met its burden of proof. All parties have been previously advised of their appeal rights and the original exhibits have been returned to the presenting party. 11 May 2010 Date By tr g? Thomas A. lacey M.D.J. ' This package is similar to the forensic vehicular accident reconstruction programs used by local and state police departments. The training for the police is specified as specific minimum number of hours. MAY-19-2010 23:33 97% P.07 1 2010 !~J'r~ 28 ~'~ ~~ ~~ c,~ ,.~:,', M1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT E. DIEHL aka REDCO; REDCO ASSOCIATES, INC., Plaintiffs, vs. ADVANCE POSITIONING SYSTEMS, INC.; MICHAEL TOROK; ADVANCE ACCEPTANCE/ALL-LINES LEASING; SOKKIA NORTH AMERICA, Defendants. CIVIL DIVISION No: 10-3809 Counsel of Record for This Party: AFFIDAVIT OF SERVICE Thomas E. Reilly, Esquire Pa. I.D. #25832 Filed on Behalf of: Defendant, Advance Acceptance / All-Lines Leasing THOMAS E. REILLY, P.C. Firm I.D. #511 Waterfront Corporate Park Building Two, Suite 403 2200 Georgetowne Drive Sewickley, PA 1.5143 724-933-3500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT E. DIEHL aka REDCO; REDCO ASSOCIATES, INC., Plaintiffs, vs. ADVANCE POSITIONING SYSTEMS, INC.; MICHAEL TOROK; ADVANCE ACCEPTANCE/ALL-LINES LEASING; SOKKIA NORTH AMERICA, Defendants. CIVIL DIVISION No. 10-3809 AFFIDAVIT OF SERVICE PURSUANT TO ORDER OF COURT Commonwealth of Pennsylvania ) SS: County of Allegheny County ) Before me the undersigned authority and Notary Public in and for the aforesaid County and State personally appeared Thomas E. Reilly, Esquire, who, being duly sworn according to law, deposes and says he is an adult individual over the age of eighteen years and that he mailed a true and correct copy of the Notice of Appeal in the above- captioned case, by Certified Mail, Return Receipt Requested to the Robert E. Diehl and Redco Associates, Inc. at 500 Redco Drive, Enola, PA 17025 on June~2, 2010, evidence of same is attached hereto. Dated: ~las~ ZOII~ BY: Sworn to and subscribed before me this day of ~,~- , 2010. ~J_yL~, Notary Public GOMMONWEp-LTH OF PENNSYLVANIA Notarial Seal ~ ~rrplnp Mane crown, Notary Public ;~rpr: r,Np Allegheny County ~ M Commission Expires April 29, 2012 ember. Pennsylvania Association of Notaries THOM~S~. REILLY, P.C. Thomas E. Reiff squire Pa. I.D. No. 32 Waterfron orporate Park Building wo, Suite 403 2200 Georgetowne Drive Sewickley, PA 15143 724-933-3500 r ~ y w...~-.------- trl f~l ------ ~-~-- - O ~~ ___--~~ N .~..---~-~.-~~ o ------' o o .w...------~ O `~ a _._--- I ~~~~ ~ .----- o ----- o N ~., .-. O ~y ~ C Y ~ U ~ -~+ N N a ~~ 3 ~ E-~ a a c~ a b~ U r-~ ~ 3 .se `~' ~ ~ a ~, GI.~ "' Q ~ ~ o ^ .1 0 0 d U on q O '' ~ c~ x ~ °' ° ~o H d ~ N ~ '~-; ~ ~ p t~ 0 o d U W +-~O Q0.. ~ U ~ ~ ,~Llo 0 o W o ~ ~ oG ~n w 9 ?~ ~ ~,. ~ ~';~~'r~ U;)(Pa,1~tll~?i3 .~ z^~4 rn,n n r G ti ~. ~. ~, ~ ~~ ~ ~~ f1J ~) m 0 o' 0 o 0 o ~ ~ ~ ~ E O a ~ o w m ~ . LL m^ m^ LL~ LL~ m LL ~ o°. o ~g g'~ ~ ~ ~~ o~ Em d ~E $E O -~ O W W 25Eh ao22 zaao 092 hoot 1 FtLEL`-~~' '_ ~ c -~aY ~~ ~.. 2410 ,lU~~ 28 °~ '~ ~5 a;~~. ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT E. DIEHL aka REDCO; REDCO ASSOCIATES, INC., Plaintiffs, vs. ADVANCE POSITIONING SYSTEMS, INC.; MICHAEL TOROK; ADVANCE ACCEPTANCE/ALL-LINES LEASING; SOKKIA NORTH AMERICA, Defendants. CIVIL DIVISION No: 10-3809 Counsel of Record for This Party: CERTIFICATE OF SERVICE Thomas E. Reilly, Esquire Pa. I.D. #25832 Filed on Behalf of: Defendant, Advance Acceptance / All-Lines Leasing THOMAS E. REILLY, P.C. Firm I.D. #511 Waterfront Corporate Park Building Two, Suite 403 2200 Georgetowne Drive Sewickley, PA 15143 724-933-3500 . .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT E. DIEHL aka REDCO; REDCO ASSOCIATES, INC., Plaintiffs, vs. CIVIL DIVISION No. 10-3809 ADVANCE POSITIONING SYSTEMS, INC.; MICHAEL TOROK; ADVANCE ACCEPTANCE/ALL-LINES LEASING; SOKKIA NORTH AMERICA, Defendants. CERTIFICATE OF SERVICE I, Thomas E. Reilly, Esquire, hereby certify that a true and correct copy of the Notice of Appeal from Magistrate's Decision was served by first-class mail, postage pre- paid on the 24`h day of June, 2010 to the following: Hon. Thomas A. Placey 104 S. Sporting Hill Road Mechanicsburg, PA 17050 Michael Torok 184 Butcher Shop Lane Elliotsburg, PA 17024 Advanced Positioning Systems, Inc. 184 Butcher Shop Lane Elliotsburg, PA 17024 Sokkin North America 16900 W ll 8`h Terrace Olathe, KS 66061 THOM BY: Y, P.C. Thomas E. Rei ,Esquire Pa. I.D. No 5832 Waterfront Corporate Park Building Two, Suite 403 2200 Georgetowne Drive Sewickley, PA 15143 724-933-3500 No V. Otto III, Esquire ZQ 10 ,i~~ ~'• ~ ~ s~ ~~ ~ 3 ~ LD. No. 27763 ,~ ~, Seth T. Mosebey, Esquire CL"~:' ~ ~ `~' ~'~~' ~ } ~ `~~ I.D. No. 203046 ~~'~i~ "~{~/~ ~~~ MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff REDCO ASSOCIATES, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. ADVANCED POSITIONING SYSTEMS, INC., SOKKIA CORPORATION, and FIRST WESTERN BANK & TRUST d/b/a ADVANCE ACCEPTANCE, Defendants NO. 10-3809 CIVIL ACTION -LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or obj ections 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 Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 F:\FILES\Clienu\5436 Bob Diehl\5436.106\5436.106.coml.wpd No V. Otto III, Esquire I.D. No. 27763 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff REDCO ASSOCIATES, INC., Plaintiff v. ADVANCED POSITIONING SYSTEMS, INC., SOKKIA CORPORATION, and FIRST WESTERN BANK & TRUST d/b/a ADVANCE ACCEPTANCE, Defendants IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-3809 CIVIL ACTION -LAW COMPLAINT 1. REDCO Associates, Inc. ("Plaintiff ') is a Pennsylvania corporation with a principal place of business located at 500 Redco Drive, Enola, Pennsylvania. 2. Advanced Positioning Systems, Inc. ("APS") is a Pennsylvania corporation with a principal place of business at 184 Butcher Shop Lane, Elliotsburg, Pennsylvania. 3. Sokkia Corporation ("Sokkia") is a Kansas corporation with a principal place of business at 16900 West 118` Terrace, Olathe, Kansas. 4. First Western Bank & Trust d/b/a Advanced Acceptance ("AA") is a North Dakota financial institution which conducts business as Advance Acceptance. 5. AA's principal place of business is located at 100 Prairie Center Drive, Eden Prairie, Minnesota. 6. On or about February 20, 2008, Plaintiffentered into an Equipment Loan and Security Agreement with AA to obtain a loan for the purchase survey equipment known as a Sokkia 3" SRX Package. A true and correct copy of the Equipment Loan and Security Agreement is attached hereto as Exhibit "A" and is incorporated herein by reference. 7. On or about February 28, 2008, Plaintiff completed an order with APS for the purchase of the SRX Package. A true and correct copy of the Order is attached hereto as Exhibit "B" and is incorporated herein by reference. 8. On or about March 5, 2008, APS provided Plaintiff with a Packing Slip showing the items to be included in the shipment to Plaintiff. A true and correct copy of the Packing Slip is attached hereto as Exhibit "C" and is incorporated herein by reference. 9. Plaintiff was to receive training for the use of the SRX Package as part of his purchase of the equipment. 10. Defendants APS and Sokkia failed to provide Plaintiff with the training which was required as part of the SRX Package. The value of the training is estimated to be $1,600.00. 11. As a result of Defendants' failure to provide Plaintiff with training, Plaintiff was required to obtain training at a cost of $2,400.00. 12. The SRX Package provided by Defendants APS and Sokkia failed to include the external battery and charge. 13. The value of the external battery and charge is $1,060.00. 14. Plaintiff made payments totaling $5,110.41 on the contract price for the SRX Package. 15. Taking into consideration the payments made by Plaintiff and the payments required under the Equipment Loan and Security Agreement, AA is requiring Plaintiff to make an overpayment on the contract in the amount of $263.41. 16. As a result of errors in the Sokkia software provided by APS with the SRX Package, Plaintiff was unable to use the surveying equipment until February 2009. 17. As a result of Plaintiff's loss of use of the surveying equipment, he was required to retain another surveyor to survey two tracts of land at a cost of $2,907.05 and $3,983.00, respectively. 18. As a result of Plaintiff's loss of use of the surveying equipment, he effectively lost one year of the warranty of the equipment. 19. The estimated value of the loss of the warranty is $2,379.50. WHEREFORE, Plaintiff demands judgment in its favor and against Defendants in the amount of $14,592.96, plus costs of suit, interest and attorneys fees. MARTSON LAW OFFICES By:. ~ cS~ No V. Otto III, Esquire I.D. No. 27763 Seth T. Mosebey, Esquire I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-1850 Dated: 6 ~ Z`8 ~ )0 Attorneys for Plaintiff EXHIBIT "A" EQUIPMENT LOAN Borrower. REDCO ASSOCIATES, INC. AND Address: 500 REDCO DRIVE SECURITY AGREEMENT ENOLA, PA 17025 Agraorent No. W 1082850ID ADVANCE ACCEPTANCE 100 Prairie Center Drive Eden Prairie, MN 55344 Phone: (952) SI6-?320 Fax: (800) 288-4959 Revised ?J08/08 I . Equipment Loan Agratneat Definitions. In this Agretartent, the words T, "me", and "my" mean the Borrower ("Borrower's (whether one or more). The words "you" and "your" mean the Lender ("Lender. "'T'his Agreerrtart" means this Equipment Loan and Saauity Agreement, inducting btd not limited to the Guaranty and the Shctx's Agreement For valuable consideration, you and I agree to all of the provisions of this Agreanent. 2. Loan. When this Agreement is signed by you and me, a Loan will exist between yon and me subject to the tecrrrs and cxarditions of this Agreement. 3. Equipment: I will use the procxeds of the Loan'to ptuchase the following equipment (called the "Egvipment'~: (1) SOKI~tA 3" SRX PACKAGE 4. Dirgietion of Meade: With my signature below I give yon my irrevocable Auhherity and Direction to pay the proceeds of this transaction to ADVANCED POSITIONING SYSTEMS. INC.. ("SeOer") for the purdrase ofthe Equipment described above, and this shalt bgi your good and sufficient authority to do so. 5. The Equipment (located blow} 1 will use the Loan and the Equipment solely for business purposes, and not for personal, family, or household purposes. I have received and accepted the Equipment in satisfactory condition. I will keep the Equipment at the following address: 500 REDCO DRIVE , ENOLA, PA 17825. I will keep the egvipmatt le good repair and pay av taxes due on the equipment. 6. Terms of Payment. Borrower promises to pay the Lender the Loan Balance in 0 (total number) traY++~i. (a) Purchase Price, including sales taxes 523,795.00 (b) Docurrtetrtation Fee 5150.00 t~) ~- S.oo Pay-0ff Amount on Schedule 5.00 (d) Cash Down Payment paid to Seller 53,569.25 (e) Value of Tntdo-in_ If none, enter "0" 5.00 (f) Amount Financxxf (a) plus (b) phrs c mimts d) and (e) 520,375.75 (gJ F'mance Charge pre-computed at .00'/. AP 5.00 (h) Agreement Time Balance -Item 4(f) plus 4(g) 520,375.75 Additional Provisions: See SELLER'S invoicx for Equipment information. Monthly Payment of 79.1 ?. Marital Property or Community Property Stites AZ, CA, ID, LA, NV, NM, TX, WA, Wi: I am married ~ lam not married ^ I am separated ^ If 1 a® married and my spouse is not signing below: The name of my spouse is: My spouse rams at: If I am married, the obligation evidenced by this Agreement is being incorr+ed in the interest of my marriage or family. THE ADDITIONAL TERMS AND CONDITIONS ON PAGE 2 ARE A PART OF THIS AGREEMENT. NO ORAL AGREEMENT, GUARANTY, PROMISE, REPRESENTATION OR WARRANTY WILL BE BINDING. Lander. First Western Bank tit Trrtst dba Advance Acceptance Headquarters: 900 S. Broadway, Minot, ND 58701 Payments: P.O. Box 2068, Mirtot, ND 58702-2068 sy: i Lender's Authorized Signature Dated THIS AGREEMENT BECOMES BINDING WREN ACCEPTED BY THE LENDER Seller, Please sa 2 of A meat for Seller's A regiment. Borrower aekaunvkdsa receipt of a tree, legible copy of this Aarament which was completely filled is prior to 1)Hyer's e:antion. The sigaer bebw covaaaats that he Iras the authority to sign this Agreement oa belylf 91'the Borrower. Borrower. - ~REDCO ASSOCIATES, INC. :., ` ,. By ~.. ~ ~ _ . ~ , ROBERT E. DIEHL Tide Dale Guaranty Borrower, please inilia/ bottom of Jorge 2 The undersigned jointly and severally and unconditionally guarantee to the Lender the prompt and full payment of the above obligation owed to the Lender. The undersigned firrther agrees to remain bound on this guaranty notwithsteodmg any extension, forbearmrce or waive, or release, discharge or substitution of any Equipment or security for the debt. Tn the event of default, the Lender may seek payment directly from the undersigned without need to proceed first against Borrower This guaranty shall be binding upon and inure to the benefit of the parties, their successors, assigns and persoaal representatives Gvaratrtor. - Dater RUBlilt'f E. Dli_'IIL W iuresx: Date: EXHIBIT "B" Advanced Posilionfmg Systems: Order St~1Gus Sys6em Find an order ~ vew open orders ~ Bulk statusRracking upload ~ Export vew Packing Slip ~ mew Invoice Data Order Details: Order 2540 ~6 To: Ship To: Robert Di~rl (Same as "Bir To") Redco 500 Redco Dr ~P Method: Errola, PA 17025 l)niled Stales tdavoren(dladvpossys.com 71774-0500 Skip To Next Order Uptlai Order Ster4rs Being Processed - APS PA Trar9drg Nurrrber: Staters: Order Reoeivaci (Email status to customer) i'~l Mar 5, 200812:47PQA: Order Fieoeivad i, Add comment for arstomer. Add internal rxxnment (hidden from customer): ~_~ Send not~ication to cxrstomer Save changes Ptarchases: /SKU Name !~/APS-SRX3SYS 3 ° SW43 Robotic Total Station Package !/ ARI~S825 Arise Tripdd ' SOK-727066 Sokkia 8' Prism Pole SOK BATCHG F_xlemal 8atlery 8 Charger V1,i,~,ru ~ r~ s ~rv`- lZrrantdy Price Total 1 23785.00 23795.00 1 0.00 0.00 1 0.00 0.00 1 0.00 0.00 Product Total 23795.00 Tax 1427.70 Uh~PP~n9 0.00 Grand Total 25222.70 Payment Manual Payment (ie. Money Win:) Grder Instructions Finance through Sokkia Financial. Downpayment redd. Customer Comments Pace 1 of 2 EXHIBIT "C" ~:. ,::. .... . ,_-.,~. -: . ~:~, -- ~¢ w. ~:.y.m - ~ ~ ~ .:._.: r;-:fir r ,:-__ :'L'i ham: ": _.. t'j"r ... --. „ The leading Internet Retailer for Professional 5urveyirtg and' Construction Equipment and Supplies ~; .. _ _ , { its +~ ~ +~~-~ • ~ ~ ~ • .~ - f'. ~ Monday - Rid~Y B A.M_ - S P_M_ EST . PETYYBYL'ir~}!W 7FFICe - 164 Bu4hrt 5h~p Lane - P.O. @ox $3 - El6olisbutg PA 17021 - Pfiane: 171 T~ 56?-3915 -Fax: [717} 552-381FI PACKING SLIP Order Number: 2540 Order Date: Mar 5, 200>R 12:4TPM Bill To: Robert Diehl Ship To: (Same as'BiN To'~ Redoo 500 Redoo Dr F_nola, PA 17025 United States Phone: 717-5740500 Email: tdavoren~advpossys.com Ship Method: Order Insirustions: Financs.lEuou Sow I"fiptircieh:l7owr~prwymerrt regd. Customer Commerrts: Customer Pick Up Part Number Item iJescriR.~i 1 APS-SRX3SYS 3 " SRX3 Robofic Total Stat9on Package 1 ARI-S625 Arise Tripod 1 SOK 727066 Sokkia 8' Prism Poi _ 1 SOK-BATCtiG External Battery & Charger ' C~.~"IOYI , ~j Ul ~ YYl t S ` ~ x ~,~ ~ _ Page 1 of 1 VERIFICATION Seth T. Mosebey, Esquire, of the firm of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, attorneys for Plaintiff Redco Associations, Inc., in the within action, certifies that the statements made in the foregoing Complaint are true and correct to the best of his knowledge, information and belief, based upon information provided by Plaintiff Redco Associations, Inc. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. ~- J, SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ti <; F~.,~„~- F ~~~~r i:;E ~- ~. ~~~__: ~{t , ~,. ti Ci,~P~J:~~ ~ - - `'~~~'' ,~ ~ ;- Redco Associates, Inc. vs. Case Number Advanced Positioning Systems, Inc. 2010-3809 SHERIFF'S RETURN OF SERVICE 06/29/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Advanced Positioning Systems, Inc., but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Perry County, PA to serve the within Complaint and Notice according to law. 07/06/2010 Perry County Return: And now July 6, 2010 at 1219 hours I, Carl E. Nace, Sheriff of Perry County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Advanced Positioning Systems by making known unto Mike Torok, Owner of Advanced Positioning Systems at 184 Butcher Shop Lane, Elliottsburg, PA 17024 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $37.44 SO ANSWERS, July 08, 2010 RON R ANDERSON, SHERIFF Goi.in,ySuita Sheri. i~e,ecsoft. Inr.. Redco Associates Inc, IN THE COURT OF COMMON PLEAS OF THE 41st JUDICIAL DISTRICT OF PENNSYLVANIA, PERRY COUNTY BRANCH Versus Advanced Positioning Systems No. 10-3809 Cumberland Co. SHERIFF'S RETURN And now July 6 , 2010: Served the within name Advanced Positioning Systems the defendant(s) named herin, personally at his place of residence in Saville Twp- 184 Butcher Shop Lane, Elliottsburg, Perry County, PA, on July by handing to Mike Torok, owner copy(ies) of the within Complaint and made known to him the contents thereof Sworn and subscribed to before me this ~~~ day of ~ u.~y , ~ o,, / ~ rU(.~~1/~cv~. ~~~ ~ COMMONyyEALTH OF PENNSYLVANIA N AR1AL ~ 1. MARGARET F. FLICKINGE~i, t~tary PUt~ic Bloortfisld Baro. i`~~ ry ~%~~'~' ~ommisalon ~~rea i:~~b.18 ?A12 6 , 2010 at 12:19 o'clock PM 1 true and attested So answer Aq/t D. Houck Badge #8-3 Deputy Sheriff of Perry County ~ ~ f ~~ ~~.~ G~I a°.::;. ; 4~~ ~ I.L:..~~ ..: L.i4 _~'i.: n.A ..~ IN THE COURT OF PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REDCO ASSOCIATES, INC., vs. ADVANCED POST INC.; SOKKIA CO WESTERN BANK ADVANCE ACCE] ONING SYSTEMS, 'ORATION and FIRST TRUST dba ANCE, CIVIL DIVISION No: 10-3809 PRELIMINARY OBJECTIONS Filed on Behalf of Defendant, First Western Bank & Trust dba Advance Acceptance Counsel of Record for This Party: Thomas E. Reilly, Esquire Pa. I.D. #25832 THOMAS E. REILLY, P.C. Finn I.D. #511 Waterfront Corporate Park Building Two, Suite 403 2200 Georgetowne Drive Sewickley, PA 15143 724-933-3500 IN THE COURT OF REDCO ASSOCIA7 vs. ADVANCED POST INC.; SOKKIA CO FIRST WESTERN ADVANCE ACCE: AND NOW through its counsel, Preliminary Objecti I INC., PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION No. 10-3809 ONING SYSTEMS, 'ORATION and INK & TRUST dba 'ANCE, PRELIMINARY OBJECTIONS ies First Western Bank & Trust dba Advance Acceptance by and -mas E. Reilly and Thomas E. Reilly, P.C. with the following to Plaintiff s Complaint: 1. Plaint ff commenced this action alleging that First Western Bank & Trust dba Advance Accept nce (hereinafter "AA") loaned Plaintiff money to purchase survey equipment known as a Sokkia 3" SRX Package (hereinafter "SRX Package") from defendant Advanced Positioning Systems, Inc. (hereinafter "APS"). 2. Pursu nt to a written Equipment Loan and Security Agreement (hereinafter "Agree ent") which is pleaded as Exhibit "A" to Plaintiff s Complaint, Plaintiff authorized A to pay loan proceeds to Advanced Positioning Systems, Inc. (hereinafter "APS"), the seller of the equipment. (See Agreement, Paragraph 4). 4. Aside from receiving the proceeds of the loan, Plaintiff has not alleged any other connection or relationship between APS and AA. 4 In add tion, by executing the Agreement, the Plaintiff represented to AA "I have received and ac epted the equipment in satisfactory equipment." 5. Under the terms of the Agreement, the only duty owed by AA to Plaintiff was to pay the loan p oceeds to APS. 6. Plaint ff alleges in Paragraph 7 of its Complaint that it ordered the SRX ra~xagc iiuiii nr~. 7. Plaint ff alleges in Paragraph 9 of its Complaint it was to receive training for the use of the S Package. 8. Plaint ff alleges in Paragraph 12 of its Complaint it was to receive a battery and an extern 1 charger. 9. Plaint ff alleges that it did not receive training from APS and did not receive the battery o charger. 10. To th extent that the Plaintiff did not receive what it was to have received from APS, its sole cl im is against APS, and not AA. 11. To th extent that the Plaintiff has sustained monetary damages as a result of a default by APS, he potential that APS may be liable to Plaintiff for damages does not permit the Defen ant to set off those claims against or otherwise credit the damages to the amount owed o AA under Exhibit "A." 12. On th facts alleged, Plaintiff has failed to set forth any cause of action against AA. 13. Beca se the Plaintiff s Complaint fails to allege a legally cognizable cause of action against AA AA respectfully requests that this Court dismiss the Complaint with prejudice. First Western Bank & Trust dba Advance Acceptance requests the court to dismiss tl{~e Plaintiffs complaint as to First Western Bank and Trust dba Advance Acceptance II. 14. through 13, as if with prejudice. to Strike for Failure of Pleading to Conform to Law or AA incorporates by reference the averments in paragraphs 1 set forth herein. 15. First ~{Vestern Bank & Trust dba Advance Acceptance commenced this action in the Court o Common Pleas of Allegheny County by appealing a judgment entered by magisteri 1 district judge pursuant to Pa.R.C.P.M.D.J. 1002. 16. Purs~ant to Pa.R.C.P.M.D.J. 1004(B), because Plaintiff was the Appellee with respect to the d cision of the magisterial district judge, a rule was served upon the Plaintiff to require t Plaintiff to file a Complaint within 20 days. Plaintiff apparently filed a Complaint on June 24, 2010. 17. Rathe than mailing the Complaint by certified mail to counsel whose appearance was ente ed on behalf of First Western Bank & Trust dba Advance Acceptance, Plaintiff's counsel mailed the Complaint by certified mail directly to First Western Bank & Tr~st d b a Advance Acceptance. 18. Pa.R.~.P. 1024(a) required the Complaint to be verified. 19. Pa.R. .P. 1024(c) requires that the verification be made by one or more of the parties filing the leading unless they lack sufficient knowledge or information or are outside the jurisdicti n of the Court and the verification or none of them can be obtained within the time allov~ed for the filing of the pleading. 20. The v rification attached to Plaintiff s Complaint filed pursuant to the Rule to File a Compl int is verified by Seth T. Mosebey who appears to be one of the two attorneys whose app arance is entered for the Plaintiff. 21. Becau e the verification is not made by one or more of the parties to the action, the verificati was required to satisfy the requirements of Rule 1024(c) by indicating that the pa~ties are outside the jurisdiction and the verification of none of them can be obtained with n the time allowed the file the pleading. 22. The v rification attached to Plaintiff s Complaint does not set forth any of this information. 23. Because the verification fails to comply with Pa.R.C.P. 1024(c), the pleading fails to con orm to law or rule of court and should be stricken. 24. Beca se the Plaintiff has failed to file a Complaint that complies with Rule 1024 in response to t~e Rule to Show Cause, First Western Bank & Trust dba Advance Acceptance submits hat the Plaintiff has failed to properly respond to the Rule issued pursuant to Pa.R.C.P.M.D.J. 1004(B). First Western Bank & Trust dba Advance Acceptance respectfully requests that the Court grant the Preliminary Objection determining that the Complaint filed by t)~e Plaintiff fails to comply with law or rule of court pursuant to Pa.R.C.P. 1028(a)(2 and further that the Court enter a judgment of non pros against the Plaintiff for failure t satisfy Plaintiff's duty to file a Complaint within the 20 days following service of the Rule to File a Complaint pursuant to Pa.R.C.P.M.D.J. 1004(B). 102 25. Defen ant AA incorporates by reference the averments in paragraphs 1 through 24, as if full set forth herein. 26. Plaint ff filed a Complaint attaching as Exhibit "A" what Plaintiff alleges to be a true and corre t copy of the agreement between Plaintiff and First Western Bank & Trust dba Advanc Acceptance. The document pleaded as Exhibit "A" states in all capital letters and bo d face type the following: "THE ADDI IONAL TERMS AND CONDITIONS ON PAGE TWO ARE PART F THIS AGREEMENT." 27. In addition, the face of the document attached as Exhibit "A" the Plaintiff represented that it ha received a true and legible copy of the Agreement. 28. Base upon these representations, the Plaintiff has in its possession a full and complete copy i cluding Page 2 of the Equipment Loan and Security Agreement, the face of which the Pl intiff has attached as Exhibit "A." 29. Beca se the Plaintiff has failed to attach a complete copy of Exhibit "A", Plaintiff s Comvlain is insufficient. 30. In the event that the Court does not grant the first two preliminary objections, First We tern Bank & Trust dba Advance Acceptance submits that the Complaint should b stricken as insufficient and Plaintiff should be required to file a more specific Comp aint attaching a complete copy of the Equipment Loan and Security Agreement. First Western Bank and Trust dba Advance Acceptance respectfully requests a more specific Security Agreement. Dated: ?"~3' the Court strike Plaintiff s Complaint and direct Plaintiff to file including a full and complete copy of the Equipment Loan and THO E. REILLY, P.C. BY: Thomas E. ei ,Esquire Pa. LD. No. 832 Waterfront orporate Park Building wo, Suite 403 2200 Ge rgetowne Drive Sewickley, PA 15143 724-933-3500 IN THE COURT OF ~OMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REDCO ASSOCIAT$S, INC., vs. ADVANCE POSITI INC.; SOKKIA COI FIRST WESTERN I ADVANCE ACCEF NING SYSTEMS, 'ORATION and INK & TRUST dba ANCE, ORDER OF COURT AND NOW t)~is day of CIVIL DIVISION No. 10-3809 2010, upon the consideration of the Preliminary Objectio challenging the legal sufficiency of the Plaintiffs Complaint, it appearing to the Cou that the only obligation of First Western Bank and Trust dba Advance Acceptance under the contract upon which the Plaintiff has commenced this action is to pay the ldan proceeds to Advance Positioning System, Inc and the Plaintiff has alleged that First Western Bank and Trust dba Advance Acceptance paid the loan proceeds and it forth r appearing that all the other alleged damages to which the Plaintiff claims to have occur~ed are the result of the alleged failure of the seller of the goods to comply with its cont act and there is no relationship between First Western Bank and Trust dba Advance cceptance and the other Defendants, it is hereby Ordered, Adjudged and Decreed that De endant's Preliminary Objections challenging the legal sufficiency of the Plaintiff s Compl int shall be and is hereby granted and Plaintiff s Complaint shall be and is hereby with prejudice. BY THE COURT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REDCO ASSOCIAT S, INC., Plainti fs, vs. ADVANCE POSITI NING SYSTEMS, INC.;. SOKKIA CO ORATION and FIRST WESTERN ANK & TRUST dba ADVANCE ACCEP ANCE, CIVIL DIVISION No. 10-3 809 ORDER OF COURT AND NOW this day of 2010, upon the consideration of the Preliminary Objectio filed by First Western Bank and Trust dba Advance Acceptance asserting that the Pla ntiff s Complaint, fails to comply with law or rule of court and it further appearing to e Court that the verification of the Complaint was taken by Seth T. Mosebey, Plaintiffs ttorney and not be the Plaintiff or an officer of Plaintiff, and that the verification does not atisfy the requirements of Pa.R.C.P. 1024(c), the Court hereby determines that the Complaint filed by the Plaintiff fails to comply with law or rule of court and therefore shall be and is hereby stricken. It further appearing that the complaint was filed pursuant to a Rule to File a Complaint issued in an appeal by First Western Bank and Trust dba dvance Acceptance from a decision of a magisterial district judge which rule to file a c mplaint was issued pursuant to Pa.R.C.P.M.D.J. 1004(B) and that because the Plaintiff failed to file a complaint in compliance with the rules, it is hereby Ordered, Adjudged a in favor of First Wes Plaintiff. Decreed that judgment of non pros shall be and is hereby entered i Bank and Trust dba Advance Acceptance and against the BY THE COURT IN THE COURT OF ~OMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REDCO ASSOCIAT Plainti vs. INC., CIVIL DIVISION ADVANCE POSITI INC.; SOKKIA COI FIRST WESTERN I ADVANCE ACCEP NING SYSTEMS, 'ORATION and INK & TRUST dba ANCE, No. 10-3 809 ORDER OF COURT AND NOW tlj~is day of 2010, upon the consideration of the Preliminary Objectio filed by First Western Bank and Trust dba Advance Acceptance challenging the lack f specificity of Plaintiff s Complaint and further it appearing that Exhibit "A" to Plaint ffs Complaint clearly on its fact indicates that the Plaintiff received a copy of the entire c ntract and that the Equipment Loan and Security Agreement included a Page 2 w 'ch the Plaintiff has failed to attach, it is hereby Ordered, Adjudged and Decreed that the efendant's Preliminary Objections shall be and are hereby granted and Plaintiff s Compl int shall be and is hereby stricken. Plaintiff is hereby ordered to file an Amended Co plaint attaching as Exhibit "A" a full and complete copy of the Equipment Loan andSecurity Agreement, the fact of which is pleaded as Exhibit "A" to the original BY THE COURT .~ . Matthew E. Hamlin, Esquire PERSUN &HEIM, P.C. P.O. Box 659 1700 Bent Creek Boulevard, Suite 160 Mechanicsburg, PA 17055-0659 (717) 620 -2440 -Phone (717) 620 -2442 -Fax mehamlin(c~persunheim com >^I~~~' , Z~l~.s; 22 ~~'rl 2.s Ot ~r ~~: ~ ; Ci~.~~ +- ~~r(y3 ~, t ~ , ~ r r, i~. r 1~~-: ev 1 L'.'T'' ~ REDCO ASSOCIATES, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 10-3809 ADVANCED POSITIONING SYSTEMS, "' INC., SOKKIA CORPORATION, AND FIRST WESTERN BANK & TRUST d/b/a CIVIL ACTION -LAW ADVANCE ACCEPTANCE, Defendants. . PRAECIPE TO ENTER APPEARANCE To the Prothonotary: Please enter my appearance in this case on behalf of Defendant, Sokkia Corporation, in the above-captioned action. Papers may be served upon me at the below address. Respectfully submitted, PERSUN &HEIM, P.C. By: M tthew E. Ha in, squ- Sup. Ct. I.D. #86142 1700 Bent Creek Boulevard, Suite 160 P.O. Box 659 Mechanicsburg, PA 17055-0659 (717) 620-2440 -Phone (717) 620-24422 -Fax Dated: July 19, 2010 Attorneys for Defendant, Sokkia Corporation CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civi] Procedure, by depositing a copy of same in the United States Mail at Mechanicsburg, Pennsylvania, with first-class postage, prepaid, as follows: No V. Otto III, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Seth T. Mosebey, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Thomas E. Reilly, Esquire Thomas E. Reilly, P.C. Waterfront Corporate Park Building Two, Ste. 403 2200 Georgetowne Drive Sewickley, PA 15143 PERSUN & HEIM, P.C. By: ~l~iv ~.rl-tcr~..- Matthew E. Ha n, Esquire Sup. Ct. LD. #86142 1700 Bent Creek Boulevard, Suite 160 P.O. Box 659 Mechanicsburg, PA 17055-0659 (717) 620-2440 -Phone (7170 620-2442 -Fax Attorneys for Defendant, Sokkia Corporation Dated: July 19, 2010 i~~>>~i ~ ~ a~ ,, ~ .. Matthew E. Hamlin, Esquire PERSUN & HEIM, P.C. Sup. Ct. I.D. No. 86142 P.O. Box 659 1700 Bent Creek Boulevard Suite 160 Mechanicsburg, PA 17055-0659 (717) 620 -2440 -Phone (717) 620 -2442 -Fax mehamlin~a,persunheim.com FfLFf U:~ i^ ~ 333 ;~. REDCO ASSOCIATES, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA vs. ADVANCED POSITIONING SYSTEMS, NO. 10-3809 INC., SOKKIA CORPORATION, AND FIRST WESTERN BANK & TRUST d/b/a ADVANCE ACCEPTANCE, CIVIL ACTION -LAW Defendants. NOTICE TO PLEAD TO: Redco Associates, Inc. c/o No V. Otto, III, Esq. Seth T. Mosebey, Esq. Martson Law Office 10 East High Street Carlisle, PA 17013 You are hereby notified to file a written response to the within New Matter within twenty (20) days from service hereof or a judgment may be entered against you. ~+ PERSUN & HEIM, P.C. By: ~, M hew E. Ha lin, Esquire Supreme Court I.D. No. 86142 P.O. Box 659 1700 Bent Creek Boulevard, Suite 160 Mechanicsburg, PA 17055-0659 (717) 620 -2440 -Phone (717) 620 -2442 -Fax Attorneys for Defendant, Sokkia Corporation Date: July 28, 2010 »s2a~~ 2 ~ ~ t Matthew E. Hamlin, Esquire PERSUN & HEIM, P.C. Sup. Ct. I.D. No. 86142 P.O. Box 659 1700 Bent Creek Boulevard Suite 160 Mechanicsburg, PA 17055-0659 (717) 620 -2440 -Phone (717) 620 -2442 -Fax mehamlin(a_persunheim. com REDCO ASSOCIATES, INC., Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. ADVANCED POSITIONING SYSTEMS, INC., SOKKIA CORPORATION, AND FIRST WESTERN BANK & TRUST d/b/a ADVANCE ACCEPTANCE, Defendants. NO. 10-3809 CIVIL ACTION -LAW ANSWER WITH NEW MATTER OF DEFENDANT SOKKIA CORPORATION AND NOW comes Defendant, Sokkia Corporation, Inc. (hereinafter "Sokkia"), by and through its attorneys, Persun & Heim, P.C., to file the within Answer with New Matter to Plaintiffs' Complaint, dated June 28, 2010, avers the following: After reasonable investigation, Sokkia is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 1 of the Complaint, and the same are therefore denied. 2. After reasonable investigation, Sokkia is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 2 of the Complaint, and the same are therefore denied. 3. Admitted. 4. After reasonable investigation, Sokkia is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 4 of the Complaint, and the same are therefore denied. 5. After reasonable investigation, Sokkia is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph S of the Complaint, and the same are therefore denied. 6. After reasonable investigation, Sokkia is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 6 of the Complaint, and the same are therefore denied. 7. After reasonable investigation, Sokkia is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 7 of the Complaint, and the same are therefore denied. 8. After reasonable investigation, Sokkia is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 8 of the Complaint, and the same are therefore denied. 9. Denied. 10. Denied as stated. Sokkia was not obligated, contractually or otherwise, to provide Plaintiff with training as part of Plaintiff's purchase of the SRX Package from Co-Defendant, Advanced Positioning Systems, Inc. ("APS"). 2 11. Denied as stated. Sokkia was not obligated, contractually or otherwise, to provide Plaintiff with training as part of Plaintiff's purchase of the SRX Package from APS. 12. After reasonable investigation, Sokkia is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 12 of the Complaint, and the same are therefore denied. 13. After reasonable investigation, Sokkia is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 13 of the Complaint, and the same are therefore denied. 14. After reasonable investigation, Sokkia is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 14 of the Complaint, and the same are therefore denied. 15. After reasonable investigation, Sokkia is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 15 of the Complaint, and the same are therefore denied. 16. Denied. 17. Denied. 18. Denied. 19. Denied. WHEREFORE, Defendant, Sokkia Corporation, respectfully requests this Honorable Court enter judgment in its favor and against Plaintiff, Redco Associates, Inc., dismissing the Complaint and granting such other and further relief as this Court deems just and proper. 3 NEW MATTER 20. Sokkia restates and reiterates its answers to paragraphs 1 through 19 above, as if hereinafter set forth in full below. 21. Plaintiff s Complaint fails to state a claim against Sokkia upon which relief can be granted. 22. Plaintiff s claims are barred in whole or in part by the doctrines of accord and satisfaction and lack of contractual privity. 23. Plaintiff s claims against Sokkia are barred under the economic loss doctrine. 24. Sokkia, as manufacturer of the involved product, was not obligated either contractually or otherwise to provide training to Plaintiff or its representatives. 25. Sokkia Corporation provided to APS all products that were ordered and paid for by APS on behalf of Plaintiff. 26. Sokkia is not contractually obligated to provide Plaintiff with a external battery for the SRX Package. WHEREFORE, Defendant, Sokkia Corporation, respectfully requests this Honorable Court to enter a judgment in its favor and against the Plaintiff, Redco Associates, Inc., dismissing the Complaint together with an award of costs and such other further and different relief this Court deems just and proper. 4 Respectfully submitted, PERSLJN & HEIM, P.C. By: Matthew E. Ha ,Esquire Supreme Court I.D. No. 86142 P.O. Box 659 1700 Bent Creek Boulevard, Suite 160 Mechanicsburg, PA 17055-0659 (717) 620 -2440 -Phone (717) 620 -2442 -Fax Attorneys for Defendant, Sokkia Corporation Date: July 28, 2010 5 VERIFICATION Matthew E. Hamlin, Esquire, of the firm of Persun & Heim, P.C., attorneys for Defendant, Sokkia Corporation, in the within action, certifies that the statements made in the foregoing Answer with New Matter of Defendant, Sokkia Corporation, are true and correct to the best of his knowledge, information and belief, based upon information provided by Defendant, Sokkia Corporation. He understands that any false statements herein are made subject to penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. By: ~ Matthew E. lin, Esquire Date: July 28, 2010 6 CERTIFICATE OF SERVICE I, MATTHEW E. HAMLIN, ESQUIRE, hereby certify that I am serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Civil Rules of Procedure, by depositing a copy of the same in the United States Mail at Mechanicsburg, Pennsylvania, with first-class postage, prepaid, as follows: No V. Otto III, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Seth T. Mosebey, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Thomas E. Reilly, Esquire Thomas E. Reilly, P.C. Waterfront Corporate Park Building Two, Ste. 403 2200 Georgetowne Drive Sewickley, PA 15143 Date: July 28, 2010 »szs~~ PERSUN & HEIM, P.C. BY~ 1 "I~i~ f 1 ~~e~.~ Matthew E. Ha ,Esquire. Supreme Court I.D. No. 86142 P.O. Box 659 7 1700 Bent Creek Boulevard, Suite 160 Mechanicsburg, PA 17055-0659 (717) 620 -2440 -Phone (717) 620 -2442 -Fax Attorneys for Defendant, Sokkia Corporation F:\FB,ES\ClientsW36 Bob Dieh(15436. t0615436.IQ6.rcsp.nm No V. Otto III, Esquire I.D. No. 27763 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GII,ROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff REDCO ASSOCIATES, INC., Plaintiff v. ADVANCED POSITIONING SYSTEMS, INC., SOKKIA CORPORATION, and FIRST WESTERN BANK & TRUST d/b/a ADVANCE ACCEPTANCE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-3809 CNIL ACTION -LAW r-~ © ~_ _v -~-; ~ -11.- vim. ~o~ - ~ ~ ._ _~_-~~ c PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT SOKKIA CORPORATION AND NOW, comes the Plaintiff, Redco Associates, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby files the following Reply to New Matter: 20. Plaintiff restates and reiterates its allegations set forth in Paragraphs 1 through 19 of its Complaint as if set forth in full. 21. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 22. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 23. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 24. Denied. Plaintiff believes that Sokkia and/or Advance Positioning Systems represented to Plaintiffthat theywould provide training so that Plaintiff could use the product which it purchased. 25. Denied. Plaintiff never received the external battery and chazger. 26. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the amount of $14,592.96, plus costs of suit, interest and attorneys fees. MARTSON LAW OFFICES 1 gy. J No V. Otto III, Esquir I.D. No. 27763 Seth T. Mosebey, Esquire I.D. No. 203046 10 East High Street Cazlisle, PA 17013 (717) 243-1850 Dated: 8 / / o JEo Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Response to New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class certified mail, return receipt requested, postage prepaid, addressed as follows: Thomas E. Reilly, Esquire Thomas E. Reilly, P.C. Waterfront Corporate Park -Building Two, Suite 403 2200 Georgetowne Drive Sewickley, PA 15143 Matthew E Hamlin, Esquire PERSUN & HEIM, P.C. 1700 Bent Creek Boulevard, Suite 160 P.O. Box 659 Mechanicsburg, PA 17055-0659 Mr. Michael Torok Advanced Positioning Systems 184 Butcher Shop Lane Elliottsburg, PA 17024 MARTSON LAW OFFICES By M .Price Ten ast High Street Carlisle, PA 17013 (717) 243-3341 Dated ~ ~ ~ ~~ F:\ 2HM\C1iMU\5436 Bob DkM\5436.106\5436.106.s1ip No V. Otto III, Esquire I.D. No. 27763 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff w W bI6')6I 18 P Kk I Z`l ,a & FALLER REDCO ASSOCIATES, INC., Plaintiff v. ADVANCED POSITIONING SYSTEMS, INC., SOKKIA CORPORATION, and FIRST WESTERN BANK & TRUST d/b/a ADVANCE ACCEPTANCE, Defendants IN THE COURT OF COMM CUMBERLAND COUNTY, NO. 10-3809 CIVIL ACTION - LAW STIPULATION TO DISMISS WESTERN BANK & TRUST d/b/a ADVANCE ACCEPTANCE To the Prothonotary of Cumberland County: > OF MANIA Plaintiff and Defendant First Western Bank & Trust d/b/a Advance Acceptance hereby stipulate to the dismissal of Defendant, First Western Bank & Trust d/b/a Advance Acceptance, in the above- captioned matter. Each party will be responsible for their own legal fees and costs in this matter, and counsel for each party has been authorized to execute this Stipulation o their behalf. Please enter this stipulation in the record. /7 MARTSON LAW OFFICES By: '9W J'. 6,4 No V. Otto III, Esquire I.D. No. 27763 Seth T. Mosebey, Esquire I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-1850 Attorneys for Plaintiff By: Thomas E Date: '8/ 1 J 1 o Y, P.C. I.D. No. 25Coppra Waterfront a Park Building Two - Su e 40$ 2200 Georgetowne Drive Sewickley, PA 15143 (724)933-3500 Attorneys for Defendant First Western Bank & Trust d/b/a Advance Acceptance Date: 91113)10 d' -'Pot 44