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Home My WebLink About01-1013F&M MAFCO, INC., Plaintiff, -V~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LANDIS, INC., Defendant. CIVIL ACTION NO. NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other fights 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 LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en personae por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas~ll~ contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y pued~ entrar una orden contra usted sin previo aviso notifieacion y por cualquier queja o alivio quees -2- pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para'usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA$O PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 Dated: February~_~, 2001 MCNEES, WALLACE & NURICK By: · (J I.D. No. 15243 James P. DeAngelo I.D. No. 62377 100 Pine Street - 7th Floor P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff, F&M Mafco 836932.1 F&M MAFCO, INC., 9149 Dry Fork Road Harrison, Ohio 45030 Plaintiff, -V- LANDIS, INC., : : P.O. Box 196 Woodcraft Drive : : Mount Holly Springs, Pennsylvania 17065 Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. COMPLAINT PlaintiffF&M Malco, Inc. CPlaintigff), by its undersigned attorneys, hereby sues De£endant Landis, Inc. ("Defendant"), and states a ....... ~ gmnnas tnere~or: PARTIES, JURISDICTION AND VENDI~: 1. Plaintiffis a corporation organized under the laws of the State of Ohio and maintains its principal place of business at 9149 Dry Fork Road in Harrison, Hamilton County, Ohio. 2. On information and belief, Defendant is an incorporated business organized under the laws of the State of Pennsylvania, which is primarily engaged in the broad-welding and fabrication industries and maintains its principal place of business at Woodcraft Drive, Mount Holly Springs, Pennsylvania. 3. Jurisdiction and venue are proper in this Court pursuant to the Pennsylvania Rules of Civil Procedure. -2- COUNT 1 (Breach of Contrac0 4. Plaintiff incorporates the allegations contained in paragraphs I through 3 as if fully rewritten herein. 5. Plaintiff and Defendant entered into a leasing contract ("Lease") wherein Plaintiff leased Defendant an American Model 9310 Conventional Crawler Crane ("Crane") for $45,000.00 over a three-month period, beginning April 14, 1999. A true and accurate copy of the Lease is attached as Exhibit A. 6. The parties agreed that the Lease could be extended on a month-to-month basis at the end of the three month period and Plaintiff eventually requested the use of the Crane for several additional months. 7. In Paragraph 3 of the Lease, Defendant certified that "all operators of the Equipment Leased are fully experienced in the use of Equipment Leased and shall indemnify and hold [PlaintiffJ harmless from any claims, damages, liabilities, and/or causes of action, which may arise out of such operator's negligent use of the Equipment Leased." 8. In Paragraph 9 of the Terms and Provisions of the Lease, Defendant agreed to "reimburse [Plaintiff] for all losses and damages to Equipment Leased occasioned by fire, theft, flood, accident, explosion, wreck or other cause that may occur during lease tenn." 9. In Paragraph 9, Defendant also agreed that "in the event of any loss or damage to Equipment Leased rendering it unfit for use beyond the lease term, [Defendant] shall pay to [Plaintiff] the value of the monthly rental as established by this Lease multiplied by the number of months necessary to replace or repair Equipment Leased as liquidated damages." -3~ 10. In Paragraph 10 of the Lease, Defendant "agree[d] to pay [PlaintiffJ its regular charges for any material or labor furnished in making said repairs upon demand including the cost of transporting [Plaintiff's] repairman to the job site. In the same paragraph, Defendant also agreed to "continue to pay rent on Equipment Leased returned in a damaged condition." 1 I. In Paragraph 17 of the Lease, Plaintiff also agreed to pay "all rentals when they are due and for all services and materials furnished and all damages and sums due [Plaintiff] under this Lease as soon as the loss occurs or services are rendered or materials are furnished." 12. On May 24, 1999, pursuant to the Lease, Plaintiff shipped the Crane to Plaintiff. 13. Defendant used the Crane on a month-to-month lease until the Crane was completely destroyed by an employee of Defendant on September 2, 1999. 14. Defendant, without any authorization from Plaintiff, stopped making rental payments on the day of the accident and deducted $5,678.65 from the amount owed Plaintiff for the rental period ending September 13, 1999. 15. The day of the accident, Defendant called Plaintiffand requested that Plaintiff send personnel to investigate the accident. On September 3, 1999, Plaintiff sent one of its personnel and an independent subcontractor to Pennsylvania to investigate the accident site and assess the damage to the Crane. 16. Later than month, Plaintiff filed a claim with its insurance company for the Crane's replacement value. 17. D ' · efendant s ~nsurance company ultimately settled with Plaintiff on December 6, 1999, when Plaintiff received payment for the replacement value of the Crane minus its salvage value. -4- 18. Following the receipt of payment by Defendant's insurance company, Plaintiff invoked its rights under the Lease and demanded payment for the rent it lost during the period from the destruction of the Crane to the receipt of the insurance check and for other services provided under the Lease. 19. Defendant refused and continues to refuse to honor its contractual obligations under the Lease by compensating Plaintiff for its lost rental payments. 20. Despite Defendant's agreement to pay Plaintiff for services rendered in a timely manner, Defendant has refused and continues to refuse to comply with its contractual obligations and pay Plaintiff for the $6116.58 in travel expenses and labor Plaintiff incurred in inspecting the accident site at Defendant's request. 21. Pursuant to the Lease, Defendant also owes Plaintiff $53,378.65, excluding interest, which is the value of the monthly rental in the Lease multiplied by the days the Crane was unusable. 22. Plaintiff has complied with all of its contractual obligations under the Lease but has yet to receive full payment for the services provided to Defendant and the lost rental payments. 23. As a direct and proximate result of Defendant's breaches of its contractual obligations, Plaintiff has been damaged in the principal amotmt of $59,495.23, plus pre-judgment and post-judgment interest as available under law. -5- COUNT II (Account Stated) 24. Plaintiff incorporates the allegations contained in paragraphs 1 through 23 as if fully rewritten herein. 25. The invoices attached hereto as Exhibit B were sent to Defendant and constituted an Account Stated, a large portion of which remains unpaid although duly demanded. 26. By reason of the aforesaid, Defendant owes Plaintiffthe principal sum of $59,495.23, plus interest, collection expenses, attorneys' fees and court costs until the date of judgment herein. COUNT III (Negligence) 27. Plaintiff incorporates the allegations contained in paragraphs I through 26 above, as if fully rewritten herein. 28. Defendant owed a contractual duty to Plaintiff to maintain the leased equipment in the same condition as delivered by Plaintiff. 29. Defendant breached this duty of care to Plaintiff when one of its employees destroyed the Crane on September 2, 1999. 30. Due to this incident and the consequential inoperability of the Crane, Plaintiff suffered damages due to its inability to lease this Crane and receive rental income for the time period from the accident date until Plaintiff received a settlement check. 31. Plaintiff lost $53,378.65 in rental income due to the loss of the use of the Crane. 32. Plaintiff also incurred unforeseen expenses due to Defendant's negligence when, -6- upon Defendant's request, it sent one of its employees and a subcontractor to the accident site to examine and report on the Crane's operability. 33. This visit was necessary in order to assess the operability and salvage vahie of the Crane. 34. Plaintiff incurred reasonable and necessary labor and travel expenses amounting to $6,116.58, in sending these personnel to the accident site in Pennsylvania. 35. Defendant's actions were the proximate cause of these damages and it is entirely responsible for the damages suffered by Plaintiff. 36. Based upon Defendant's negligence, Plaintiff has suffered damages in the principal amount of $59,495.23, excluding interest. WHEREFORE, Plaintiff, F&M Mafco, Inc., demands judgment against Defendant Landis, Inc., on the claims set forth above, as follows: A. For money judgment in the principal amount of $59,495.23; B. That Plaintiff recover pre-judgment and post-judgment interest allowed by law; and C. That Plaintiff recover its costs, reasonable attorneys' fees, and such further relief which this Court deems just and proper. -7- MCNEES, WALLACE & NURICK By: ~' I.D. No. 15243 James P. DeAngelo I.D. No. 62377 100 Pine Street - 7th Floor P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff, F&M Mafco OF COUNSEL: Stephen C. Coffaro E. Todd Wilkowski KEAT1NG, MUETHING & KLEKAMP, P.L.L. 1400 Provident Tower One East Fourth Street Cincinnati, Ohio 45202 (513) 513-579-6400 Dated: February ~ ,2001 Exhibit A ......,-.~__~'_-:~.-'t,~r. . . ,..~.,. . . . ' " z~tm ~ar o~' ~';~' ":' ::" '" ' "' ~'~ "~"'~-'~' ~'" .?." ~e~e~n F~'M ~C0 I~C, ('~sso~'), · t ~eo~e~°r' on one ~ of 8 hout~ per d~y4 u ~ ~ ho~ per w~ up~ 1~ hou~r Rental ~ ~e ~y ~e b~d ~p - at ~1 be ie~d for ~e p~i~ .qt for~ ab~. ~ ~ ~nt ~e ~see ~hg ~ ~ep th~ ~ b ~ the Ieee ~~' --, ~ mead M~tll oa~n~ ~ my be mummy s~eeablc. - . ~IN, NOR T~ AG~ OF T~ D~rlp~on ~ ~qutpmont: Dc~pflOn ~d ~ of ~ns~on ~o~: ~j.~e ~ A Ship to: (~dr~) ~c~ to tor me ~U value of the ~uipment ~ed. ~e~.~[~e_~al . e~orsement by the enn~erCs) ~o~ce tO ~or ~tor tO c~ce~fion of any su~ mo~c~. ~s.~. [h~:~.y~[~atlsfa~o~dence of Su~ l~e, ~ffect upon ~e ~'ecution of ~ lease ~d shall f~h at ~o ~e et ~--,,~,, - ~ At ~e cxplrafion or other tc~inafion of ~s ~, whe~er by laps0 ~ ti~ ~ o~o~e, or up demand by ~ssor ~ ~c event ~ssce de~ts or fails ~ pcfform ~y pr~ifl~ hereof, ~ssee, at Exhibit B InVoice Date ** Rental Invoice ** 09/13/1999 Invoice# ** Reprint ** R1031731 100124 LANDIs, INC Ship To: ACCOUNTs PAYABLE LANDIs, /NC. PO BOX 196 405 PA~RK DR. MOUNT HOLLY SPRINGs, PA 17065 CARLISLE, PA 17013 Cust P/O:. Reps:504 /115 Terms:NET 30 DAYS Ord-Date:05/21/99 Written:DAG Order#:1010559 Ship Via:BEST WAY Product/Description ............ Open Ship,d B/O Price U/M EXtension R-CRN225CONCRW ......................... Ein# 765046 Make: AMERICAN 1 1 0 15000.0000 MO 15,000.00 225 TON CONVENTIONAL CRAWLER C Model: 9310 From 08/16/99 To 09/12/99 For 1 MONTH Material Still On Rent Rental Unit#: R-CRN225CONCRW_0006 Serial#: RM810A2723 W/220'BOOM, 100' JIB, BLOCK, BALL & MANTJALS 0.00 Mdse Total Handling Misc Chg Tax Freight Dep-amt Dep-Appld Invoice To~al Invoice Date o9/3o/i999 100124 LANDIS, INC ACCOUNTs PAYABLE PO BOX 196 MOUNT HOLLy SPRINGs, PA 17065 Invoice ** Reprint ** Ship To: LANDIS, /NC. 405 PARK DR. CARLISLE, PA 17013 Cust P/O:VERBAL Reps:ll5 / Ord-Date:09/30/99 Written:CEA Order#:1029766 Terms:NET 30 DAYS Ship Via:BEST WAY ~°duct/Description REP101 ........... Open Ship'd B/O COA~;ENTIONAL CRA~E REPAIR THIs INVOICE IS FOR THE ACCIDENT INVESTIGATION 9/2/99 ANDy GRAy AND STEVE MARQuIs TRIP TO DETERMINE WHY THE CRANE WAS INVOLVED IN AN ACCIDENT. *SUBREP101R INVESTIGATE CRANE ACCIDENT CURT LUND, INC. LAB101F CONVENTIONAL CRANE FIELD LABOR MISC101 MISCELLANEOUS CHARGES _ PC101 LABOR AND EXPENSES FOR ANqDy GRAy TRIP TO CARLISLE, PA 2O 1 Invoice# S1035036 Price U/M EXtension 0.0000 EA 0.00 0.00 0.00 0.00 3600.5900 EA 3,600.59 20 0 55.0000 HR 1,100.00 1 0 1069.7600 EA 1,069.76 0.00 Mdse Total Handlin~ Misc Chg Tax Freight Dep-amt Dep-Appld Invoice Total 5,770.35 0.00 0.00 346.23 0.00 ~RA/~E ACCIDENT. 0.00 0.00 6,116.58 Invoice Date 10/11/1999 100124 LANDIs, INC ACCOUNTs PAYABLE PO BOX 196 MOUNT HOLLY SPRINGs, Rental Invoice ** Invoice# Reprint ** R1036513 Ship To: LANDIS, INC. 405 PARK DR. PA 17065 CARLISLE, PA 17013 Cust P/O:. Reps:504 /115 Ord-Date:05/21/99 Written:DAG Order#:1010559 Terms:NET 30 DAYS Ship Via:BEST WAY Product/Description ................. Open Ship'd B/O Price U/M EXtension R-CRN225CONCRw ......................... Ein# 765046 Make: AJWERICA2q 1 1 0 15000.0000 MO 225 TON COAS;ENTIONAL CRAWLER C Model: 9310 15,000.00 From 09/13/99 To 10/10/99 For 1 MONTH Rental Unit#: Material Still On Rent R'CRN225CONCRw_0006 Serial#: W/220, BOOM, 100, JIB, BLOCK, RM810A2723 BALL & MANUALS 0.00 Mdse Total Handling Mlsc Chg Tax ~ .00 0.00 0.00 900.00 0.00 0.00 0.00 15,900.00 Invoice Date Rental Invoice 11/08/1999 Invoice# ** Reprint ** R1041557 100124 LAND/s, /NC Ship To: ACCOUNTs PAYABLE LANDIs, INC. PO BOX 196 405 PARK DR. MOUNT HOLLY SPRINGs, PA 17065 CARLISLE, PA 17013 Cust P/O:. Reps:504 /115 Terms:NET 30 DAYS Ord-Date:05/21/99 Written:DAG Order#:1010559 Ship Via:BEST WAY Product/Description .................. Open Ship,d B/O Price U/M Extension R.CRN225CONCRW ....................... Ein# 765046 Make: AMERICAN 1 1 0 15000.0000 MO .............. 225 TON CONVENTIONAL CRAWLER C Model: 9310 15,000.00 From 10/11/99 To 11/07/99 For 1 MONTH Rental Unit# Material Still On Rent : R'CRN225CONCRW_0006 Serial#: W/220, BOOM, 100' JIB, BLOCK, RMS10A2723 BALL & MANUALs 0.00 Mdse Total Handling Misc Chg Tax Freight Dep-amt Dep-Appld Invoice Total 15,000.00 0.00 0.00 900.00 0.00 0.00 0.00 15,900.00 Invoice Date 12/o6/1999 100124 LANDIs, INC ACCOUNTs PAYABLE PO BOX 196 MOUNT HOLLY SPRINGS, Rental Invoice Cust P/O:. Invoice# Reprint ** R1046208 Ship To: LANDIS, INC. 405 PARK DR. PA 17065 CARLISLE, PA 17013 Reps:504 /115 Terms:NET 30 DAYS Ord-Date:05/21/99 Written:DAG Order#:1010559 Ship Via:BEST WAY Product/Description .............. --_ Open Ship'd B/O R.CRN225CONCRW ............ - ........... .... Price U/M Extension Ein# 765046 Make: AMERICAN 1 1 ................................... 0 15000.0000 MO 15,000.00 225 TON CONVENTIONAL CRAWLER C Model: 9310 From 11/08/99 To 12/05/99 For 1 MONTH Rental Unit#: Material Still On Rent R'CRN225CONCRW-0006 Serial#: RMS10A2723 W/220' BOOM, 100' JIB, BLOCK, BALL & MANUALS 0.00 Mdse Total Handlin9 Misc Chg Tax Freight Dep-amt Dep-Appld Invoice Total 15,000.00 0.00 0.00 900.00 0.00 0.00 0.00 15,900.00 fore __ 1' ~ ...... --.,,,, .ul'eS~leul of P{,min ' -- -- · gotu{ decu.u~al: ~ thc fm~-~ knowl ' · -,,., .,.,.,,tm mem**e~. ~ hue ~nd co -" '""~ edge, intmnmion mid belief, rrcct to the best of my SHERIFF' S RETURN - REGULAR CASE NO: 2001-01013 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND F&M MAFCO INC VS LANDIS INC DAWN KELL Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon LANDIS INC the DEFENDANT , at 0013:46 HOURS, at 30 WOODCRAFT DRIVE MOUNT HOLLY SPRINGS, PA 17065 on the 23rd day of February , 2001 by handing to STEVE CAPUANO (PRESIDENT) a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 6.72 Affidavit .00 Surcharge 10.00 .00 34.72 Sworn and Subscribed to before me this 2g'~ day of ~'~-~, ,~) ~Zo,~ / A.D. / {~rothonotary ' So Answers: R. Thomas Kline 02/26/2001 KEATING MUETHING & KLEKAMP By: Deputy Sheriff F&M MAFCO, 1NC., ) Plaintiff ) ) ) LANDIS, INC., ) 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1013 CIVIL TERM Defendant ) CIVIL ACTION - LAW PRELIMINARY OBJECTIONS of DEFENDANT to PLAINTIFF'S COMPLAINT AND NOW comes the Defendant, by and through its attorney, Michael L. Bangs, Esquire, and in support thereof files the following Preliminary Objections: DEMURRER 1. Defendant demurs to Count I in that Exhibit A attached to Plaintiff's Complaint is not the lease identified in the pleadings and is insufficient to form the basis for a breach of contract under its terms. 2. Defendant demurs to Count II in that Count II fails to state a cause of action upon which relief may be granted. 3. Defendant demurs to all claims in the Complaint requesting attorney's fees in that the Complaint as a whole is legally insufficient to make out a claim for attorney's fees. 4. Defendant demurs to Count III in that Count III does not state a cause of action on the basis of negligence, but rather states a cause of action on breach of contract. 5. Defendant demurs to the Complaint in that Plaintiff cannot claim liquidated damages and consequential damages as alternative relief. INSUFFICIENT SPECIFICITY 1. Defendant objects to Count II of the Complaint in that it lacks sufficient specificity to state a cause of action on which Defendant may form a proper defense. 2. Defendant demurs to Count III, Negligence, of the Complaint in that it lacks sufficient specificity as to what act or actions form the basis to make out a claim for negligence against Defendant. WHEREFORE, Defendant requests this Honorable Court dismiss Plaintiff's Complaint. Respectfully submitted, 302 ~noeuYt hf°lr~tDhe fse~ed~t ~// ' Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 2 VERIFICATION PURSUANT TO Pa. R.C.P. 1024(c) I, MICHAEL L. BANGS, Esquire, counsel for Landis, Inc., verify that the statements made in the foregoing Preliminary Objections are tree and correct to the best of my knowledge, information, and belief based upon information and documents provided to me by Landis, Inc. understand that the statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served the foregoing Defendant's Preliminary Objections to Plaintiffs Complaint by depositing a copy of same in the United States mail, postage prepaid, at Camp Hill, Pennsylvania, addressed to the following: David J. Lehman, Esquire McNees, Wallace & Nurick 100 Pine Street, 7th Floor Post Office Box 1166 Harrisburg, PA 17108-1166 /~! Legal Assi~taCn~ F&M MAFCO, INC., Plaintiff LANDIS, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1013 CIVIL TERM 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 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, PA 17013 (800) 990-9108 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus obje¢iones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso notifica¢ion y por cualquier queja o alivio que es pedido en la petioion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICiO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERiGUAR DONDE SE PUEDE CONSEGUiR ASiSTENCiA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 McNEES, WALLACE & NURICK James P. DeAngelo I.D. No. 62377 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff Dated: F&M MAFCO, INC., Plaintiff -V- LANDIS, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1013 CIVIL TERM CIVIL ACTION-LAW FIRST AMENDED COMPLAINT Plaintiff F&M Mafco, Inc. ("Plaintiff"), by its undersigned attorneys, brings this Civil Action against Defendant Landis, Inc. ("Defendant"). PARTIES, JURISDICTION AND VENUE 1. Plaintiff is a corporation organized under the laws of the State of Ohio and maintains its principal place of business at 9149 Dry Fork Road in Harrison, Hamilton County, Ohio. 2. On information and belief, Defendant is a corporation organized under the laws of the State of Pennsylvania, which is primarily engaged in the broad-welding and fabrication industries and maintains its principal place of business at Woodcraft Drive, Mount Holly Springs, Cumberland County, Pennsylvania. 3. The Courts of the Commonwealth of Pennsylvania have jurisdiction over this matter. Venue is proper in this Court pursuant to the Pennsylvania Rules of Civil Procedure. BACKGROUND 4. Plaintiff and Defendant entered into a leasing contract ("Lease") wherein Plaintiff leased Defendant an American Model 9310 Conventional Crawler Crane ("Crane") for $45,000.00 over a three-month period, beginning April 14, 1999. A true and accurate copy of the Lease is attached as Exhibit A. 5. The parties agreed that the Lease could be extended on a month-to- month basis at the end of the three month period, and Defendant did lease the Crane for additional months. 6. In Paragraph 3 of the Lease, Defendant certified that "all operators of the Equipment Leased are fully experienced in the use of Equipment Leased and shall indemnify and hold [Plaintiff] harmless from any claims, damages, liabilities, and/or causes of action, which may arise out of such operator's negligent use of the Equipment Leased." 7. In Paragraph 9 of the Lease, Defendant agreed to "reimburse [Plaintiff] for all losses and damages to Equipment Leased [the Crane] occasioned by fire, theft, flood, accident, explosion, wreck or other cause that may occur during lease term." 8. In Paragraph 9, Defendant also agreed that "in the event of any loss or damage to Equipment Leased [the Crane] rendering it unfit for use beyond the lease term, [Defendant] shall pay to [Plaintiff] the value of the monthly rental as established by this Lease multiplied by the number of months necessary to replace or repair Equipment Leased [the Crane] as liquidated damages." 9. In Paragraph 10 of the Lease, Defendant "agree[d] to pay [Plaintiff] its regular charges for any material or labor furnished in making said repairs upon demand including the cost of transporting [Plaintiff's] repairman to the job site." 10. In Paragraph 10, Defendant also agreed to "continue to pay rent on Equipment Leased [the Crane] returned in a damaged condition." 2 11. In Paragraph 11 of the Lease, Defendant "agree[d] to indemnify [Plaintiff] against all loss, damage, expense, including reasonable attorney's fees and penalty arising from any action on account of any injury to person or property of any character whatsoever occasioned by the operation, handling or transportation of Equipment Leased [the Crane] during the rental period and while in the possession or under the custody and control of [Defendant]." 12. In Paragraph 17 of the Lease, Plaintiff agreed to pay "all rentals when they are due and for all services and materials furnished and all damages and sums due [Plaintiff] under this Lease as soon as the loss occurs or services are rendered or materials are furnished." On May 24, 1999, pursuant to the Lease, Plaintiff shipped the Crane to 13. Defendant. 14. Defendant used the Crane on a month-to-month lease until the Crane was damaged by an employee of Defendant on September 2, 1999. 15. The day of the accident, Defendant called Plaintiff and requested that Plaintiff send personnel to investigate the accident. 16. On September 3, 1999, Plaintiff sent one of its personnel and an independent subcontractor to Pennsylvania to investigate the accident site and assess the damage to the Crane. 17. Later that month, Plaintiff filed an insurance claim for the Crane's replacement value. 18. On December 6, 1999, the insurance company paid Plaintiff the replacement value of the Crane minus its salvage value. 3 19. payments. 20. Defendant received $10,000.00 from its insurance company for lost rental Following payment by the insurance company, Plaintiff invoked its rights under the Lease and demanded payment for the rent it lost during the period from the damage to the Crane to the receipt of the insurance check and for other services provided under the Lease. COUNT I (BREACH OF CONTRACT) 21. The foregoing paragraphs are incorporated by reference. 22. Defendant refused and continues to refuse to honor its contractual obligations under the Lease. 23. Pursuant to the Lease, Defendant owes Plaintiff, as liquidated damages, the value of the monthly rental under the Lease from the date the Crane was rendered unusable until the date it could be reasonably repaired or replaced. 24. Plaintiff has complied with all of its contractual obligations under the Lease but has yet to receive full payment under the agreed upon liquidated damages provision. 25. obligations, Plaintiff is entitled to liquidated damages in an amount not less than $65,000.00, plus pre-judgment and post-judgment interest as available under law, with the exact amount to be proven at trial. WHEREFORE, Plaintiff F&M Mafco, Inc. demands judgment in its favor in an amount sufficient to compensate it for the damages it has incurred, including, without As a direct and proximate result of Defendant's breaches of its contractual 4 limitation, (i) the amount of liquidated damages due under paragraph 9 of the Lease, (ii) interest, (iii) attorney fees and expenses and (iv) such other relief as is just, together with the taxable costs of this action. COUNT II (UNJUST ENRICHMENT) 26. Plaintiff incorporates the foregoing paragraphs of this complaint. 27. Benefits have been conferred upon Defendant by way of its enjoyment of services requested by Defendant and provided by Plaintiff in inspecting the Crane following the accident and advising Defendant on how to resolve the problem. 28. Retention of these benefits under the circumstances would be unjust and inequitable without payment to Plaintiff for the value of such benefits. 29. Defendant has derived unjust benefits and continues to derive such benefits from its enjoyment of the services provided by Plaintiff without payment to Plaintiff and in place of Defendant's use of inspection services for which it would be required to pay an amount equal to $6,116.58. 30. Defendant, without any authorization from Plaintiff, stopped making rental payments on the day of the accident and then deducted $5,678.65 from the amount owed Plaintiff for the rental period ending September 13, 1999. 31. Defendant has been unjustly enriched and profited at the expense of Plaintiff and has accepted and retained the benefits of the Plaintiff's services but has not paid Plaintiff despite the fact that in justice and equity it should pay for the benefits which it requested and bestowed upon it by the retention and enjoyment of Plaintiff's services. 5 32. Defendant is liable to Plaintiff for repayment of the unjust enrichment it reaped at the expense of Plaintiff in an amount equal to $11,795.23. WHEREFORE, Plaintiff F&M Mafco, Inc. demands judgment in its favor for the amount of the value of services provided to Defendant and unpaid rental, plus interest and costs. MCNEES, WALLACE & NURICK David E. Lehman I.D. No. 15243 James P. DeAngelo I.D. No. 62377 100 Pine Street- 7th Floor P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff OF COUNSEL: Stephen C. Coffaro E. Todd Wilkowski KEATING, MUETHING & KLEKAMP, P.L.L. 1400 Provident Tower One East Fourth Street Cincinnati, Ohio 45202 (513) 513-579-6400 6 Exhibit A THlS LEASE is made this ' ' ",.' ' : Date: HEADOUARTERt~ BIRMINGHAM FACIL ORLANDO FACtL(TY F&M MAFCO, INC, P.O, BOX 680337 ORLANDO, FLORIDA 32868 TELEPHONE (407) 877'8n57 FAX (407) 877-9244 F&M MAFCO, INC. P,O. BOX 11013 CINCINNATI, OHiO 45211 TELEPHONE {513) 367-2151 FAX (513) 367-0363 F&M MAFCO, tNC. P.O. BOX 360188 BiRMiNGHAM, ALABAMA 35238 TELEPHONE (208) 664-8300 FAX (205) 664-5188 14th day of April , 19 99 ., by and LANDIS, INC." ("Lessee"). between F & M MAFCO INC. ("Lessor"), and The Lessor hereby leases to the Lessee th, e equipment set forth below in the section designated "Equipment Leased" according to the terms and provisions as stated, subject to the provisions of Section .%, oil the reverse hereof: Rental. The Lessee agrees, subject to the provisions of Section 2, to pay the total sum of t,X3RTE FIVE ...... -. Doll~rs~($ 45,0OO.OO ) for the use of the Equipment for a period of ~ The first payment is due on recexpc and ~%v, e6~)6h.~)Srst rental. All rentals are due every 30 days thereafter, to be paid monthly in advance in the amount of $ at the office of the Lessor. es for the day are based upon one shift of 8 hours per day; unon 40 hours per week, upon 160 hours .per Rental rat . . 4',_ .~. ...... , *h-t the Eauinment is used longer than the above specified time for any period, 28-consecutive-aay penou tn tn,. ......... , ~ S~ti~n 2 of this Lease rental for overtime will be charged as detailed 'n , · '~ · e keep the Term The e u merit will be leased for the period set forth above. In the event th Lessee wished to L~ase Te~m. - -q P~ -~ ~a~o *~rm it may do so only with Lessor's written consent and upon such terms and Eqmpment .L~as? oe~gn~ 5"~_227fC27~:&J ~'~ ~av be mutfiallv agreeable. condigns, ~nmumng aojusteu r~ma* Fa~,,,~,,.o, - , - WAR~N~ DISC~MER. UNDER NO CIRCUMSTANCES 1S THE~ ANY EXP~SS OR IMPLIED WA~N~. LESSEE ACKNOWLEDGES THAT THE LESSOR IS NOT THE MANUFACTURER OF THE EQUIPMENT LEASED HEREIN, NOR TIlE AGENT OF THE MANUFACTU~R OF THE EQUIPMENT LEASED. LESSOR G~TS NO WAR~NTIES AGAINST PATENT OR LATENT DEFECTS IN MATE~AL, WOR~SH1P, OR CAPACI~, NOR THAT THE EQUIPMENT LEASED ~LL MEET THE ~QUIREMENTS OF ANY ~W, RULES, SPECIFICATIONS OR CONTACTS ~ICH PROVIDE FOR SPECIFIC MACHINERY OR APPA~TUS OR SPECIAL METHODS. ' T LESSEE FURTHER ACKNO~EDGES THA ALL EQUIPMENT LEASED IS LEASgD AS IS. Equipment Leased,~ Description of Equipment: I ~~ ~~ Freight: Not to exc~ $15,O~,00 eachway. · ERECTi~q CAN BE SUPPLIED AT ~550.00 [~r day plus travel ex~nses~ overtime would be time and a half. ~% .... HUST IIA~E SIGNED ~PY OF LE~E AGI~Ei4ENT ~D CERTIFICATE OF INS~CE PRIOR '1~ SHIPM~T OF ~UIP/4~. PLEBE }{Wi'Ut{H ONE C~PY '1~ F&M ~F~, iNC. L3%%'~' · . Total Value $ Carllsl. e, PA 650,000.00 F.O.B. Sbippin9 Point & Return Description and Location of Construction Project: too,t, ,,a e,~l~t No.) Ship to: (Address) Date: _ Via ~ Return to __ '~ . , ~ Cap. nano Street Address P.O. t',ox J_vo, ~ao,-,. ,,a~-~ ully. ano ~tatc Credit References .F . , , , .L ' ' -' .... '"" I ~.~ . . ,~.-2 ~ffect at a mes during ihs lease a primary ~~ ~ .. ~ e ' . .... , ........a .;th ~aitv Inium and Property Damage I m~ts of haMay of Gen~ than $1 000,0~mb~ned single limit an excess ab ity insurance pohcy w~th umas no ~ess than an aamnona~ no ~s , n u and ro eft damage clmms, and an Inland Manne Pohcy ~1 ~sk coverage $1 coverage for bodilyi j ~ p P Y ' " ull value of the Equ pment Leased. Lessee shall tender a Certificate of Insurance to Lessor within seven.days o~ t~e for t~e f ..... -~..:.. ..... limits of liab t~ aud providing ao endorsement by the ensurer(s) that Less~r shalYbe provided thirty days written notice prior to the cancellation of any such policy. Lessee shall gurther give thirty days written notice to Lessor prior to cancellation of any such insurance. Lessee warrants that the foregoing insurance coverage is effect upon the execution of this lease and shall furnish at the time of execution satisfactory evidence of such insurance. SURRENDER. At the expiration or other terminatioB of this Lease, whether hy lapse of time or otherwise, or upon demand by Lessor m the event Lessee defaults or fails to perform any provisions hereof, Lessee, at its sole expense, shall immediately retnrn Equipment Leased to Lessor in as good a condition as received, less normal wear and tear and depreciation, by delivering Equipment Leased dismantled, packed, and ready for shipment to such place or on board such carrier as ~ssor may specify. , TERMS AND PROVtS ON OF LEASE Sent by: KEATING~ MUETHINS~ & KLEKAMP tl'.~lm4~{ .j~-j~4~-.~)l - 513 579 6457; 04/04/01 12:lSPM~]etF~x ~847~Page 2/2 mad ~m ~lng ~aoument a~ the ~ &M ~dh ~0 am ~8 and ~ ~ ~ kn~le~go, J~n and CERTIFICATE OF SERVICF The undersigned hereby certifies that a true and correct copy of the foregoing document has been served upon the following by first-class mail, postage prepaid: Michael Bangs, Esquire 302 South 18th Street Camp Hill, PA 17011 Dated: ~- ~.0~ Of counsel to Plaintiff F&M MAFCO, INC., Plaintiff VS. LANDIS, INC., Defendant ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-1013 CIVIL TERM CIVIL ACTION - LAW PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S AMENDED COMPLAINT AND NOW comes the Defendant, LANDIS, INC., by and through its counsel, Michael L. Bangs, Esquire, and in support thereof files the following Preliminary Objections: DEMURRER 1. Defendant demurs to the portion of Count I of Plaintiff's Amended Complaint wherein it demands payment of attorney's fees in that Count I as a whole is legally insufficient to make out a claim for attorney's fees. WHEREFORE, Defendant requests this Honorable Court to dismiss the portion of Count I of Plaintiff's Amended Complaint wherein attorney's fees are demanded. Respectfully submitted, EL L. BANGS ~ Attorney for Defendant 302 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 CERTIFICATE OF SERVICE ! HEREBY CERTIFY that I have this day served the foregoing Preliminary Objections of Defendant to Plaintiff's Amended Complaint by depositing a copy of same in the United States mail, postage prepaid, at Camp Hill, Pennsylvania, addressed to the following: DATE: James P. DeAngelo, Esquire McNees, Wallace & Nurick Post Office Box 1166 Harrisburg, PA 17108-1166 Legal Assistant 2 PRAECIPE FOR LISTiNGs. CASE FOR ARGUMEN-r (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please ]i_~t the within matter for th~ next ~t Court. CAPTION OF CASE (entire caption must be stated in F&M Mafco, Inc., Landis, Inc. Plaintiff ) ( Defendant ) No. 1013 Civil Term 19 2001 State mattertobeargued(i.e., plaintiff's motion for new trial, defendant,s de~/rrerto cc~tDlaint, etc.): Preliminary Objections of Defendant Landis, Inc. Identify counselwhowi]_larguecase: (a) for plaintiff: Roy C. Fazio, Esq. Az~ess: McNees, Wallace & Nurick P.O. Box 1166 Harrisburg, PA 17108-1166 (b) for defendant: Michael L. Bangs, Esq. Address: 302 South 18th Street Camp Hill, PA 17011 I will notify ~] 1 Parties in writing within two days that this case has been 1/steal for argtmnent, yes 4. Arg~nent Court Date: ____~Da_ted: May 21r 2001 -- L Attorney ~or Plaintiff F&M MAFCO, INC., PLAINTIFF · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA LANDIS, INC., DEFENDANT : 01-1013 CIVIL TERM I T BEFORE BAYLEY. J. AND OLER. JR.. ,,/, AND NOW, this /'~--day of August, 2001, defendant's preliminary objection to plaintiff's complaint, IS DISMISSED. Roy C. Fazio, Esquire For Plaintiff Michael L. Bangs, Esquire For Defendant :saa F&M MAFCO, INC., PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA LANDIS, INC., DEFENDANT : 01-1013 CIVIL TERM BEFORE BAYLEY. J. AND OLER. JR., ~PINION AND ORDER OF COUR~ Bayley, J., August 23, 2001:-- On April 14, 1999, plaintiff, F&M Malco, Inc., leased a crane to defendant, Landis, Inc. The crane was sent to defendant in Mt. Holly Springs, Cumberland County, where it was used by defendant in its commercial steel erection and fabrication business. Plaintiff is located in Cincinnati, Ohio, and the written lease provides that the rights and obligations thereunder are governed by the laws of the state of Ohio. On September 2, 1999, when the crane was being operated by an employee of defendant, it was destroyed in an accident. Defendant paid plaintiff for the crane less its salvage value. Plaintiff demanded liquidated damages under paragraph 9 of its lease, which provides: [lin the event of any loss or damage to the Equipment Leased rendering it unfit for use beyond the lease term, Lessee shall pay to the Lessor the value of the monthly rental as established by this Lease multiplied by the number of months necessary to replace or repair Equipment Leased as liquidated damages. 01-1013 CIVIL TERM Defendant refused to pay liquidated damages under paragraph 9, so plaintiff instituted this suit for such damages. In addition, plaintiff seeks attorney fees under paragraph 11 of the lease, which provides: ~ The Lessee further agrees to indemnify the Lessor against all loss, damage, expense, including reasonable attorney's fees, and penalty arising from any action on account of any injury to person or property of any character whatsoever occasioned by the operation, handling, or transportation of Equipment Leased during the rental period and while in the possession or under the custody and control of Lessee. (Emphasis added.) Defendant filed a demurer to plaintiff's claim for counsel fees. The issue was briefed and argued on July 25, 2001. A demurer will only be sustained where a complaint is clear and sufficient to establish the pleader's right to relief. County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360 (1985). The Ohio Supreme Court has held that contractual provisions for attorney fees to be enforceable under Ohio law absent a showing of unequal bargaining positions between the parties, misunderstanding, deception or duress. Nottingdale Homeowners, Assn., Inc. v. Darby, 514 N.E.2d 702 (1987). In the present case, defendant argues in its brief.' The purpose of the indemnification clause is to indemnify Malco in the event of a claim by a third party against Malco for damages that arise out of the operation of the leased equipment by Landis. If Mafco were sued by a third party for some act or occurrence while the property was under the control of Landis, then Landis would have the responsibility to indemnify Malco for any loss, damage, or expense, including reasonable attorney's fees, Malco incurred as a result of that claim. That may be. However, paragraph 11 of the lease requires that defendant -2- 01-1013 CIVIL TERM indemnify plaintiff for all loss, including reasonable attorney's fees arising from any action on account of any injury to property of any character whatsoever occasioned by the handling of the crane while in the Possession of Lessee. The words "any action" and "property of any character whatsoever" in the indemnification provision does not limit a recovery of attorney's fees to third party claims. It can include injury to the crane. We are satisfied that if plaintiff, based on the destruction of the crane by defendant, recovers liquidated damages under paragraph 9 of the lease, it is entitled to reasonable attorney's fees under Paragraph 11 to collect the loss. Accordingly, defendant's demurer must be dismissed. AND NOW, this ~ay of August, 2001, defendant's Preliminary objection to plaintiff's complaint, IS DISMISSED. Roy C. Fazio, Esquire For Plaintiff Michael L. Bangs, Esquire For Defendant By the~.Ce~, ..... Edgar B. Bayt j. :saa -3- F&M MAFCO, INC., Plaintiff -V- : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-1013 CIVIL TERM LANDIS, INC., : Defendant : CIVIL ACTION-LAW _PRAECIPE TO DISCONTINUE Please mark the above-captioned action as "settled and discontinued." McNEES WALLACE & NURICK LLC ~.D. #62377 - Roy C. Fazio I.D. #86994 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Dated: February 21, 2002 Attorneys for Plaintiff F&M Mafco, Inc. CERTIFICATE OF SERVICE The undersigned hereby certifies that he has this day served a copy of the foregoing document upon the person indicated by first class mail, postage prepaid. Michael L. Bangs, Esquire 302 South 18th Street Camp Hill, PA 17011 Dated: February 21, 2002 J/ames P. DeAngelo