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HomeMy WebLinkAbout01-2394IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORIGINAL THE FAIRVILLE COMPANY, L.P. Plaintiff SHAULL EQUIPMENT AND SUPPLY COMPANY, DEBORAH SMIGELSKY, and, BRIAN FITCH, jointly and severally, Defendants CIVIL ACTION No. O 1 - o~/ JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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 Ave. Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA THE FAIRVILLE COMPANY, L.P. Plaintiff SHAULL EQUIPMENT AND SUPPLY COMPANY, DEBORAH SMIGELSKY, and, BRIAN FITCH, jointly and severally, Defendants CIVIL ACTION No. O/- o7 q¥ JURY TRIAL DEMANDED NOTICIA Le hah demandado a usted en la cone. 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 presemar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomra medidas y puede entrar una orden contra usted sin previo aviso o notificacion y pot cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propriedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. 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 ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASiSTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Ave. Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA THE FAIRVILLE COMPANY, L.P. Plaintiff SHAULL EQUIPMENT AND SUPPLY COMPANY, DEBORAH SMIGELSKY, and, BRIAN FITCH, jointly and severally, Defendants CIVIL ACTION No. o/- a JURY TRIAL DEMANDED COMPLAINT AND NOW, this 20~ day of April 2001, comes the Plaintiff, The Fairville Company, L.P., by and through its attorneys Balaban and Balaban, and files this Complaint against the Defendants, Shaull Equipment and Supply Company, Deborah Smigelsky and Brian Fitch, and in support thereof avers as follows: Plaintiff The Fairville Company, L.P. is a Pennsylvania Limited Partnership with its principal place of business located at 10 Hillman Drive, Suite 104, Chadds Ford, PA 19317 (hereinafter "Plaintiff' or "Fairville"). Defendant Shaull Equipment and Supply Company is a Pennsylvania corporation with its principal offices located at 100 Market Street, Lemoyne, Cumberland County, Pennsylvania (hereinafter, "Defendant Shaull"). Two Thousand Eight and 80/100 ($2,080.80) Dollars and a trade-in ora lawn tractor for a credit of Five Thousand Seven Hundred Thirteen and No/100 ($5,713.00) Dollars. A true and correct copy of May 16, 2000 Customer Order is attached hereto, made a part hereof and marked as Exhibit "A". On May 18, 2000, Defendant Smigelsky executed both a notarized Security Agreement (NOTE) (the "Security Agreement") and a notarized Guaranty (the "Guaranty") in favor of Fairville in the amount of Twenty-One Thousand and No/100 ($21,000.00) Dollars. True and correct copies of the May 18, 2000 Security Agreement (NOTE) and the May 18, 2000 Guaranty are collectively attached hereto, made a part hereof and marked as Exhibit "B". The Security Agreement included within its terms the conveyance of a security interest to Fairville by Defendant Smigelsky in equipment quantified and described as an Ingersoll Rand 600CFM compressor w/Sprayer Setup & Tank; Serial No. HR17396 (the "Equipment"). (See, Exhibit "B"). 10. On May 18, 2000, Defendant Smigelsky executed a notarized Power of Attorney in favor of Fairville (the "Power of Attorney") authorizing Fairville to sign any Certificates of Ownership issued by Motor Vehicle agencies relative to the Equipment. A true and correct copy of the May l 8, 2000 Power of Attorney is attached hereto, made a part hereof and marked as Exhibit "C". 3 11. Defendant Smigelsky further provided Fairville with an executed Loss Payee Insurance Authorization relative to the Equipment (the "Insurance Authorization"). A true and correct copy of the Insurance Authorization is attached hereto, made a part hereof and marked as Exhibit "D". 12. On and around May 18, 2000, Fairville understood through representations made by Defendant Shaull's employee, Defendant Fitch, that Fairville's financing of the Equipment was part of a purchase of said Equipment by Defendant Smigelsky through Defendant Shaull and that Defendant Shaull's employee, Defendant Fitch, was the salesperson or broker responsible for the sale and for arranging the financing with Fairville. 13. On and around May 18, 2000, Fairville understood through representations made by Defendant Shaull's employee, Defendant Fitch, that the total purchase price for the Equipment was to be Twenty-Five Thousand Nine Hundred and No/100 ($25,900.00) Dollars (the "Total Purchase Price"). 14. On and around May 18, 2000, Fairville understood through representations made by Defendant Shaull's employee, Defendant Fitch, that Defendant Smigelsky made a down payment toward the Total Purchase Price in the amount of Two Thousand and No/100 ($2,000.00) Dollars by check and Eighty and 80/100 ($80.80) in cash (the "Down Payment"). A true and correct copy of Deborah Smigelsky's April 7, 2000 check, No. 536, drawn in the amount of Two Thousand and No/100 ($2,000.00) 4 Dollars and made payable to Defendant Shaull is attached hereto, made a part hereof and marked as Exhibit "E". 15. Upon information and belief Defendant Smigelsky's check, No. 536 (Exhibit "E"), was not deposited and was held by Defendant Shaull until Defendant Shanll received Fairville's check on or about May 19,200l as is more fully described in paragraph 19 hereof. 16. On and around May 18, 2000, Fairville understood through representations made by Defendant Shaull's employee, Defendant Fitch, that Defendant Smigelsky traded in a lawn tractor for credit in the amount of Five Thousand Seven Hundred Thirteen and No/100 ($5,713.00) Dollars against the Total Purchase Price (the "Trade-In"). 17. Upon information and belief the lawn tractor referenced in paragraph 16 hereof never existed. 18. After deductions for Defendant Smigelsky's Down Payment a~d Trade-In, the amount financed through Fairville was reduced to Twenty-One Thousand and no/100 ($21,000.00) Dollars (the "Financed Amount"); and a credit in the amount of Two Thousand Four Hundred Ninety-Four and 80/100 ($2,494.80) Dollars for three payments on the Security Agreement and Three Hundred Ninety-Nine and 00/100 ($399.00) Dollars for document fees was given to Defendant Smigelsky; and the 5 amount issued to Defendant Shaull by Fairville to complete the financing was Eighteen Thousand One Hundred Six and 20/100 ($18,106.20) Dollars. 19. On May 19, 2000, Fairville issued its check, No. 5555, in the amount of Eighteen Thousand One Hundred Six and 20/100 ($18,106.20) Dollars and made payable to Defendant Shaull to cover the balance of the Total Purchase Price for the Equipment. A true and correct copy of Fairville's May 19, 2000 check, No. 5555, is attached hereto, made a part hereof and marked as Exhibit "F". 20. Upon information and belief, Fairville's check, No. 5555, was indorsed with the names "Lester W. Ginanni" and "Deborah Smigelsky"; and deposited in Defendant Shaull's account with Allfirst Bank. See, Exhibit "F". 21. Fairville's check, No. 5555, was issued on behalf of Defendant Smigelsky in consideration for her execution of the Security Agreement and Guaranty and her promise therein to repay Fairville the amount of Twenty-Nine Thousand Nine Hundred Thirty-Seven and 60/100 ($29,937.60) Dollars (the "Indebtedness") over a period of Thirty-Six (36) months. See, Exhibit "B". 22. The Indebtedness was reduced to Twenty-Seven Thousand Forty-Three and 80/100 ($27,043.80) Dollars through the application of the credits referenced in paragraph 14 hereof. 6 23. Upon information and belief, Defendant Shaull failed to apply the money received from Fairville's check, No. 5555, to the purchase of any item offered for sale by Defendant Shanll through the ordinary course of its business as an equipment supply company. 24. On May 19, 2000, Defendant Shaull issued its check, No. 062741, in the amount of Eighteen Thousand One Hundred Six and 20/100 ($18,106.20) Dollars and made payable to Defendant Smigelsky. Upon information and belief, check, No. 062741, was signed by Defendant Shaull's employee Lester W. Ginanni; indorsed with the name "Deborah Smigelsky"; and deposited in Defendant Smigelsky's account with PNC Bank. A true and correct copy of Defendant Shaull's May 19, 2000 check, No. 062741, is attached hereto, made a part hereof and marked as Exhibit "G". 25. Between June 30, 2000 and October 16, 2000, Fairville received four (4) payments totaling Three Thousand Eight Hundred Nine and 56/100 ($3,809.56) Dollars from Defendant Smigelsky toward satisfaction of the Indebtedness, reducing the outstanding balance to Twenty-Three Thousand Two Hundred Thirty-Four and 24/100 ($23,234.24) Dollars. 26. Since October 16, 2000, Defendant Smigelsky has failed in her obligation to make payments on the outstanding balance of the Indebtedness, despite demands by Fairville for payment. 27. Since October 16, 2000, payments due under the Security Agreement have been in arrears. 28. The Security Agreement provides for the assessment of a ten percent (10%) late charge for payments in arrears. See, Exhibit "B". 29. Paragraph F of the Statement of Additional Covenants to the Security Agreement, provides that the agreement shall be in default should the debtor fail to make payments when due. See, Exhibit "B". 30~ Paragraph G of the Statement of Additional Covenants to the Security Agreement provides for the acceleration of all payments upon an event of default. See, Exhibit 31. Since October 16, 2000, Defendant Smigelsky has defaulted in her obligation to make payments under the terms of the Security Agreement. 32. By letter, dated January 25, 2001, Fairville was notified by Defendant Smigelsky's then attorney, Jackie J. DeArmond, of the apparent theft of the Equipment by an individual named Jean (last name unknown). A true and correct copy of Attorney DeArmond's January 25, 2001 letter is attached hereto, made a part hereof and marked as Exhibit "H". 8 33. In reliance upon Attorney DeArmond's January 25,2001 letter, on January 31,2001, Fairville as the loss payee on Defendant Smigelsky's Insurance Authorization (see, Exhibit "D"), through its attorney, Michael V. Brown, filed a claim with Millers Capital Insurance Company for the outstanding balance of the Financed Amount, together with accrued interest (the "Insurance Claim"). A true and correct copy of Michael V. Brown's January 31,2001 claim letter and attachments, including the Certificate of Property Insurance, is collectively attached hereto, made a part hereof and marked as Exhibit "l". 34. Upon information and belief, the Equipment never existed. 35. The Ingersoll-Rand Corporation did not manufacture any 600CFM compressor w/Sprayer Setup & Tank with Serial No. HR17396. A true and correct copy of Ingersoll Rand's April 6, 2001 correspondence to Fairville's counsel representing its failure to recognize "HR17396" as a valid serial number is attached hereto, made a part hereof and marked as Exhibit "J". 36. The Insurance Claim has never been paid. 37~ As of the date of this Complaint the Indebtedness outstanding under the Security Agreement, inclusive of late fees, is Twenty-Five Thousand Five Hundred Fifty- Seven and 66/100 ($25,557.66) Dollars. 9 38. COUNT I - BREACH OF CONTRACT The Fairville Company, L.P.v. Deborah Smigelskv Paragraphs 1 through 37 of the Complaint are incorporated herein as if set forth in their entirety. 39. Defendant Smigelsky is in breach of her obligations to Fairville as set forth under the terms of the Security Agreement. See, Exhibit "B". 40. Paragraph G of the Statement of Additional Covenants to the Security Agreement provides for the recovery of the costs of litigation and attorney fees incurred to enforce the Security Agreement. See, Exhibit "B". 41. Paragraph 2 of the Guaranty provides for the recovery of the costs of litigation and attorney fees incurred to enibrce the Security Agreement. See, Exhibit "B". WHEREFORE, Plaintiff, The Fairville Company, L.P. requests this honorable Court to enter judgment in its favor and against Defendant Deborah Smigelsky and to award damages to Plaintiff in the amount of Twenty-Five Thousand Five Hundred Fifty-Seven and 66/100 ($25,557.66) Dollars, together with costs of suit, attorney fees, interest and such other and further relief as the Court may deem appropriate. 10 COUNT II - FRAUD AND MISREPRESENTATION The Fairville Company, L.P.v. Shaull Equipment and Supply Company, Deborah Smigelsky~ and Brian Fitch. iointlv and severally 42. Paragraphs 1 through 41 of the Complaint are incorporated herein as if set forth in their entirety. 43. Pursuant to the maxim Respondeat Superior, Defendant Shaull is responsible for the tortious conduct of its employee, Defendant Fitch. 44. Defendant Shaull through its employee, Defendant Fitch, wilfully and falsely represented to Fairville that it was legitimately entering into the transaction detailed hereinabove with Defendant Smigelsky. 45~ Defendant Smigelsky and Defendant Fitch intended to cause Fairville to believe, to its detriment, that Defendant Smigelsky was legitimately entering into transaction detailed hereinabove with Defendant Shaull in order secure financing for Defendant Smigelsky through Fairville, even though Defendants Smigelsky and Fitch knew that the purported transaction was false. 46. Defendants Smigelsky and Fitch knew that the Equipment did not exist. 47. Defendant Shaull knew or should have known that the Equipment did not exist. 11 48. Defendant Shaull, through its employee, Defendant Fitch, knew or should have known that the Equipment did not exist. 49. Defendants wilfully and knowingly provided Fairville with a false serial number for the Equipment and thereby defeated Fairville's ability to file a valid UCC-1 and thereby prefect its security interest identified in the Security Agreement and Guaranty (Exhibit "A"). 50. Defendants Smigelsky and Fitch knew that the Trade-In did not exist. 51. Defendant Shaull knew or should have known that the Trade-In did not exist. 52. Defendant Shaull, through its employee, Defendant Fitch, kmew or should have known that the Trade-In did not exist. 53. Fairville justifiably relied, to its detriment, upon the false representations made by Defendant Smigelsky. 54. Fairville justifiably relied, to its detriment, upon the false representations made by Defendant Fitch. 55. Fairville justifiably relied, to its detriment, upon the false representations made by Defendant Shaull through its employee, Defendant Fitch. 12 56. Defendant Shaull profited from its fraudulent conduct by at least Two Thousand and No/100 ($2,000.00) Dollars. See, Exhibit "E". 57. As a direct consequence of the fraudulent conduct of Defendant Smigelsky, Fairville has suffered financial losses, inclusive of lost profits, in the amount of Twenty-Five Thousand Five Hundred Fifty-Seven and 66/100 ($25,557.66) Dollars. 58. As a direct consequence of the fraudulent conduct of Defendant Fitch, Fairville has suffered financial losses, inclusive of lost profits, in the amount of Twenty-Five Thousand Five Hundred Fifty-Seven and 66/100 ($25,557.66) Dollars. 59. As a direct consequence of the fraudulent conduct of Defendant Shaull, Fairville has suffered financial losses, inclusive of lost profits, in the amount of Twenty-Five Thousand Five Hundred Fifty-Seven and 66/100 ($25,557.66) Dollars. 60. But for the wilful and wanton fraudulent conduct of the Defendants, Fairville would not have financed the purchase of the Equipment. 61. The fraudulent and deceitful conduct of the Defendants as set tbrth hereinabove demonstrates a wholly wanton disregard for the rights of others thereby justifying an award of punitive damages. 13 WHEREFORE Plaintiff; The Fairville Company, L.P. requests this honorable Court to enter judgment in its favor and against Defendants Shaull Equipment and Supply Company, Deborah Smigelsky, and Brian Fitch, jointly and severally, and to award damages to Plaintiff in the amount of Twenty-Five Thousand Five Hundred Fifty-Seven and 66/100 ($25,557.66) Dollars, together with punitive damages, costs of suit, attorney fees, interest and such other and further relief as the Court may deem appropriate. COUNT III - CONSPIRACY The Fairville Company, L.P.v. Shaull Equipment and Supply Company, Deborah Smigelsky, and Brian Fitch, jointly and severally 62. Paragraphs 1 through 61 of the Complaint are incorporated herein as if set forth in their entirety. 63. Under Pennsylvania law, a cause of action for conspiracy requires a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose, 64. The facts set forth in this Complaint support an inference of combination and intent on the part of the Defendants to defraud Fairville. 651 Defendants Shaull, Smigelsky and Fitch well knowing of the matters complained of in this Complaint and intending to injure Fairville did overtly, unlawfully, wickedly and maliciously conspire and agree together to injure Fairville and to deprive Fairville of monetary funds by causing Fairville to believe that the Defendants were 14 engaging in a legitimate equipment purchase and sale which required Fairville to provide financing. 66. Because of Defendants conspiracy and resulting fraudulent conduct, Fairville has suffered financial losses in the amount of Twenty-Five Thousand Five Hundred Fifty-Seven and 66/100 ($25,557.66) Dollars. WHEREFORE Plaintiff, The Fairville Company, L.P. requests this honorable Court to enter judgment in its favor and against Defendants Shanll Equipment and Supply Company, Deborah Smigelsky, and Brian Fitch, jointly and severally, and to award damages to Plaintiff in the amount of Twenty-Five Thousand Five Hundred Fifty-Seven and 66/100 ($25,557.66) Dollars, together with punitive damages, costs of suit, attorney fees, interest and such other and further relief as the Court may deem appropriate. Date: April 20, 2001 By: 15 Respectfully submitted, ~11.. ~a; 3R3.~B alaban, E squire Michael V. Brown, Esquire I.D. #79984 Balaban and Balaban 27 N. Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 (717) 234-3282 (voice) (717) 233-4264 (facsimile) attorneys~balabanlaw.com FILE No, 754 04/12 '01 18:05 ID:BALABAH D BALABAN 717 233 4264 PAgE VERIFICATION l, ('~% ¢4 ~ a I)artner of The I:'airville ' - , Co ~pa~y, L.P., hereby state, subject to the penalties of t 8 Pa. C,S. §4004 relating to unsworn falsification to authorities, that mn aufl~orized to make this verification, and that the ['acts set forth in the foregoing altached Complaint are true and correct to the best of my knowledge, information and belief. Dated: ( Subscribed and sworn to before me this JULIE ANN PINDER NOTARY PUBLIC-DELAWARE NEW CASTLE COUNTY ~M~c ER, AMERICAN SOClEI'X .0~ NOTARIES OMMIS$10N EXPIRES..~/~.~ Exhibit A 18.:45 FA~ 810 558 4882...FAIRVILL~ COMPAI~ LP-THI~ ECiuIPME#T mid SUppLY COMPANY 100 MARKET 8~ET, BO.K 612 * L~MOyNE, ~ENNA, 1704~0~12 CUSTOMERS ORDER ~006/013 It F. O, IA, Ow, rust ..,.'-_ ~y~/l' 01/30 '01 18:03 Exhibit B ~008/013 01/30/0! TUE 18:47 FAX 610 $58 4882 FAIRVILLE COMPANY LP-T]:i~ 100 D~vk~s~ D~w, Sulto I ~4, Ch~ Ford, PA 19317 ~urity ~e~t ~0~) ~ ~aym~ F~u~ ~ou~t Advam~ I Mou~y ~1~ 2 Mon~ ~L~ its pcmtsylvanin oCfiao by i~z payment to ~c vcndo~/stippUm', for ~ equipment ]~ q~a~. v~ldor/mzppller by $e~wd Par~/, I'~mr acknowledg~ tJtcir rcspanslbil/ty to ~unmto~ full I~]y p;t~ts as provided her~in. {~bt~r wu{v.] nny ~ of t~ntratt obiiptiou b~ed upon MM{pm,mt ddivt4'y or uon-d.lh~,-y, ~nd#ion, ~itibilit~ and/or nvs{lal, iiity. ,~cu red Pnrty makes no ciain~ or warrant{as re&q rdJug tk¢ equipmwat nor i~ ~{ivm'y, NId this A4v~mmt 'kill rmuain lu full ~or~ dasplt~ any prnbl~nu which may ~im~ with elthm- the subject equipment or the vtudor~suppit~L at a~ ~ ~ye~. 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Thc t~ *'~cd Pa~" ~lude ~y ~Sn~ of S~r~ ~y w~ ~ tho ~1~ ~O~is ~c ~y pmvbi~ h~of ~a~ ~, pro~bil~ ~ or invalid ~ ~pl~abk laws ~ ~guladons droll ~ J~ppli~blc ~d ~ ~i~ ~ ~ ~ ~ ~vgidato l~ r~ma~ ~v~i~ ~f D~ h~y waiv~ any ri~ m ~Jnl by ju~ ~ ~y ~Jon r~latin~ ~ this Ag~m~l. ~d Pa~ ~y ~ ~t ~ ~. All of the t~ ~d ~v~io~ o~ this Agr~t shall apply ~ ~ ~ bioding up~ U~, i~ ~i~, p~ ~p~n~iv~ su~ and ~i~ ~d ~all inu~ to d~ ~cfit of ~ This A~cm ~11 ~ dc~ ~ havc ~ ex~ in d~ Co~w~ of P~ylva~ upou ~ acne.cc by Sccu~ Pm~Y in its 2 01/30 '01 18:03 01/30/01 TUE 18:48 FA~ 810 558 4882 FAIR¥ILLE COIP,~'Y LP-THE ~010/013 gov~ by r~ ~1 laws of i~e Com~w~ld~ of Pc~ylv~i~ D~TO~ SECURED PARTY: TH]~ FAIRViLLE COM PA~*q~, L.P.' Authoda~l Ot'13crr 01/30 '01 18:03 01/30/01 TUE 18:48 FAX 610 588 4882 FAIRVILLE COMPAI~Y LP-THE ........ Thc Fa-"rYPJe ~."~l~ ~Ol.e N#mhef: 71225280 C.o~m~a~we~l& ofPr, nmyi'wnl~ end swo~ I~f~ro me: 01/30 '01 18:03 Exhibit C 01/30/01 '~ 18:49 FA][ 810 558 4882 FAIR¥I~ COMP~ ~012/013 POWER OF ATTORNEY ALL t~.N BY THE$1~ ~,.~T~'. ' ' -' ., T~t the uad~ ~ S~eb~ CoU~r~ D~pflon: Number D~p~n ~96 ~ge~U ~d ~ comp~r w~p~ycr ~t~p & T~ 01/30 '01 18:03 Exhibit 01/30/01 ~ 18:49 FAX 610 558 4882 FAIRVI!,LE C0~{PANY LP-T~ The Fairv#_le Company. LP. Note Number: 21:21 S. W. Broadway, Suite 200, Portland, OR 97201 LOSS PAYEE INSURANCE AUTHORIZATION AGENT: INSURANCE CO. NAME: ADDRESS: PHONE #: FAX//: POLICY #: SUBJECT: insurance for ~quipment at: 4551 S~luoia Drive, Harrisburg, PA 17109 Ingersoll Raid 600Clt~ eomprestor w/Sprayer Setup & Tank, Serial # HR17396 Kindly accept this I~tca- as your authority m famish THE FAIRVIII~ COMPANY, L.P. a Certifi¢!te of lazuranc~ and Endmsement~ of ooverag~ for Fire and ~ Cov~'aga, V~ndalism, and Malioioua Mischief desi?srlnE THE FAIRVII l.g. COMPANY, L.P. as loss pays, Pl~a~ fa~ your bind~ or c~axific, a~ imm~lamly to Fairvllle at (610) 558-1949. ffyou have aay qu~mtiona, ¢o~ta~t Pat Ugmt~o (800) 92}2-2274. Ifa bindor is fax~l, lhe completed Gert/fie. am should be seat as ~oon as possible to The FaitviUe Co., L.P. 2121 SW Broadway, Suit~ 200, Portland, OR 97201. All premium% if any, for this insurance are to bo billed to: 4551 ,Sequoia Drive Harrisburg, PA 17109 V,ty truly you~i Borrower: Deborah .qmlgcisl~, 01/30 '01 18:03 Exhibit E · ~ ~? 536 DEBORAH SMIGELSKY . ' .' ' /.~__ _~ .... .. , . ~' ~~ ~/ ~, ~¢~ ~ ~e- ....... '01 15:05 [~005/013 01/30/01 TUE 16:46 . FA~ 610 558 4882 F&IR¥ILLE COMFA~ LP-THE .. 5555 THE FAIRVIL~E COMPANY, k.P. 0 0 0 Exhibit G pUlL,'. ~ , 1.1,,I ' l;'hJ .ii *FEDERAL RESERVE BOARD OF GOVERNORS REG. CC Exhibit H [~} 007/0].3 01/30/01 TUB 16:47 FAY. 61{} $$~__4.~.SJ_F.&I.8~IL~,.C,.O~,~ LP-T~ 7t? v.~? ~,-;'~? ~..~= Bum & H ss ATTORNEYS AT LAW 951 ROHRERSTOWN ROAD, SUITI/102 TeLephone (717] {717) Mr. Tim Brady CAG RE: D~or~ Smiselsky Dear Tim: As discussed in our telephone c~mvers~don, I have been fully retained by thc above-rcfcrenc~i clicnt to represent ha' in · Chs.nt~ 7 Bankruptcy. Ms. Smitlelsk7 has rclated the followin8 information lo me te~ardlu~ the equipmcm purchascd throush Fairville. My client had ~ttempted n landscapln~ business at which time sho used · subcunUlwtor n~ ~l~ ]eAv~ Oafm~l~t~ly, Ms. Sr~alsky does not rcmember Jean's last namo. Alt ~ fin~ l~an ~ ~ area ~ ~ovod tO Call·da, my client not/c~i that her sprayer m~d cor~re~or were mi~ Sine~ that time lvh. Smigelsky h~ had no hmwledg, e of the wher~abouls of th· equipment or fur that matter, the individual Ihe believes is re~ie for its d~carm~cc, Ir'you have any questions reg~-din~ this matter, please do not hesitate to contact my office. I apprec/atc your directin~ all corre~ to mc. V~y uuly yours, ' .L_ .~ ' l{M/kie I l~nd, P~uire l~D/wp Cc: Deborah Smigdaky 01/30 '01 18:03 EXIBIT I WILLIAM ~:~. BALABAN PATRICIA CAR£Y ZUCKER ~,~ ICHAIEL V. BROWN BALABAN AND BALABAN January 31, 2001 VIA U.S. Mail & Facsimile: 717-697-7552 Jim Schnell Cumberland Valley Insurance 31 East Main Street P.O. Box 451 New Kingstown, PA 17072-0451 Fairville Company Your Insured - Deborah Smigelsky Policy No. CPP 0628511 00 Loss Claim Dear Mr. Schnell: Kindly permit this letter to confirm our office represents Fairview Company relative to the above-captioned matter; and to further confirm our telephone conversation from earlier today. The facts as we understand them are as follows: On or about May 17, 2000, your insured, Deborah Smigelsky purchased an Ingersoll Rand Compressor w/ Jay Hawk Sprayer S/N HR17396 (the "Equipment") for Twenty-Five Thousand Nine Hundred and No/100 ($25,900.00) Dollars, which purchase was financed in part by Fairville Company. The original finance amount was Eighteen Thousand One Hundred Six and 20/100 ($18,106.20) Dollars. As of February 1, 2001, the outstanding balance on the Equipment financing (with accrued interest) is Nineteen Thousand Seven Hundred Forty and 58/100 ($19,740.58) Dollars. Jim Schnell January 31,2001 Page 2 Effective June 1,2000, Binder #B00071300948 / Policy No. CPP0628511 was issued on the Equipment with Fairville Company included as the Loss Payee. (Loss Payee Insurance Authorization and Certificate of Property Insurance enclosed). By letter dated January 25, 2001, Fairville Company was notified by counsel for Deborah Smigelsky that the Equipment has been stolen. A copy of this letter is enclosed for your file. In view of the foregoing, kindly permit this letter to serve as notice of claim for the outstanding balance due ($19,740.58) on the equipment covered by Binder #B 00071300948 / Policy No. CPP0628511, and provide our office with any procedures necessary for effectuating the prompt resolution of this claim. Thank you in advance for your prompt attention to this matter. I will await word from you. Respectfully yours, ~M~hael V. Brown enclosures CCi Jackie J. DeArm0nd, Esquire (w/enc.) Eric Reynolds (w/enc.) Fairville Company G:~B&B\CLIENTS\949Lqchnel I I ,Itt ol/2o/o~ ~ 18~49 FAX 610 558 4882 FAIRVILI~ COIiPANY LP-TltE Tke Fai~i~e ~V, ~. ~o~ Number; 212~ S. W. Brawny, 8u~ 200, ~ O~ 97201 ~ PA~ ~S~N~ A~O~ON AGENT: INSURANCE CO. NAME: ADDKESS: PHONE #: FAX #: POLICY #: SUBJECT: Insurance for oquiptn~t at: 4551 S~luoiaDriw, I-larrisburg, PA 17109 lng~oll Ra~d (gl0C~ compressor w/Sprayer Setttp & Tank, Serial # ~RIT3~6 ~1013/01~ Kindly accept this letter ~s your en~hority ~o furnish THE FAI~VILLE COMPANY, L.P. a Cm~ifi¢~*_- of Insurance end Endorsements of cove~e for Fire end Ex~nded Covc~e~c~ Vm~_~!j~m, and Malicious Mischief designating THE FAIRV~.T.R COMPA~/'. L.P. as loss payee. Pl~o fax your biml~ or eorfific, at~ immod~ly to F air~lllo at (610) 55~-1949. If you have any queationz, co~t~t Pat UgroUo (~00) 932-2274. If a binder is fzxed, ~he complctexl ~rtificat~ should be seat as soon a~ possibl~ to The Fairvi[lc Co., L.P. 2121 SW Broadway, Suito 200, Portland, OR 97201. All prenfiums, if eny, for this lasuranc~ ax~ to bo billcd to: 4551 S~luoie Drive H~rfisbur~ PA 17109 Borrower'. Deborah Smlgclsl9' Title: [ )[.t~ X~' 01/30 '01 18:03 ~Z EaSt Na. tn Street P.O. Box 451 New Kingstown, PA Z?072-045Z Attn )lm Schnell Debor~fl Sm~gel~ky 4551 Sequota Dr~ve Suite 274 Harrisburg, PA 17109 (717)697-3.938 FAX (?17)697-7~52 TH~ C~RTI~TE I~ ~ U A M~TTER OF I~o~rlON CLIMB;:RLRND VALLEY 'rNSURANCE ONLY AND CO~ NO RI~ UPON THE CERTIFICAT= HOLDER. ~ CERTII~NT, ATB D0~8 NOT AMENI}~ ~J(TEND OR ALTER THE COVERAGE AFFOR~O BY THE POLK~IE~ ... ca~,~ A~oRomo F. xt A C D CO A Equipment: Flo~Cer CPP 0628511 00 : 06/01/2000.06/01/2001 25,900 Ingersoll Rand Compressor w/3ay Hawk Sprayer S/N HR17396 - $250 Oeductible Cer~ifica:e Holder included as Loss Payee 01/31 '01 09:48 ~ 007/013 01/$0/01 ~ 18:47 FAX 610 $$8_.4.8.8._2_~.~R.Y_.IL~i~,.C,.O~Y LP-~i~ ?Z7 ",'~7 e~e'",. P.'e2 Michael fL Hess Sackie J. DeArmond Keith ~, DeAtmond I~rian ~ ChuCLT. lk Bue. & H ss ATTORNEYS AT LAW 951 ROHRERS'rOW14 ROAD, SUITE 102 2001 Telephone (717} f717) 391-5&0~ Mr. Tim Brady CAG RE: Deborah 8migelaky Dear Tim: As discussed in out tetq~hone conm'lation, I have been fully r~tained by the above-referenced die. at to repfe~llt h~' lo a Chapt~a' ? 13a~roptGT. Ms. Smigelsky has rclated the followin~ infom~tion ~o m~ reg~din~ lira equipment putchaf, ed thro~h Fl~rville. My olient had attempted a land.aping busines~ at which time she used · mbcontra~o~ nalaed Jean. Unfortu~ely, Ms. SmiBelsky does not remember Jean's last name. AHite timo ;can left tho area and moved to Cam~ my cliont noaced that he~ speaycr and ~ ~ n~ Since that time Ms. has bad ao kaowledge oftbe whermbou~ of'thc equipment or for that matter, the individual she believes is req~.sible for ira diaappe, aran~. If you have any questions tegat~ this msh'~, pleaae do not hesitate to contact my office. I appre~iat~ your dL,~oting nil correaponden~ to mo. V~y uuly yours, Burke & Hcs~ JJD/wp Cc: Deborah Smigd~.y 01/30 '01 18:03 EXIBIT J Ingersoll-Rand Portable Power 501 Sanford Avenue Mocksville, NC 27028 336.751.6402 336.751.1819 Fax htto:lN~ww. Do~tableoower.irco.com/ 6 April, 2001 Michael V. Brown Balaban and Balaban Governors Row 27 North Front Street P.O. Box 1284 Harrisburg, Pa 17108-1284 Subject: Ingersoll-Rand 600 CFM Compressor SIN HR17396 Dear Mr. Brown: Mr. Silverman passed your letter of March 30, 2001 to me for response. We do not recognize HR17396 as a sedal number for an Ingersoll-Rand Portable Air Compressor. I have attached an explanation of our serial number system for your review, Please feel free to contact me should you have further questions. Don Holston Manager Field Service cc: Ken Silverman P~msd~mb040601 The Portable Product B) Serial Number of Unit The distributor should always try to obtain the unit serial number-- "The Complete Serial Number." For example -- 101366 is a serial number, but 101366U79910 is the complete serial number. From the eady 1950's to 1970, serial numbem were in the following sequence types: 1) 600AR18719 -- R600serial #18719 2) 125SRA19209 -- RA125 serial #19209 3) A85RR61253 -- RR85 serial #61253 4) 50621L900M -- L900 serial #50621 These serial numbers gave the style of unit and the unique serial number. They were stamped on the air end and on the Portable Compressor identification plate. Beginning in 1970 the Portable Compressor Division went to a product code system for serial numbers. The basic concept was simplo in that, a three digit product code would represent each style of compressor built by the Portable Division. The same concept was carried on until 1991. Example of "Product Code" type serial number: 98716U77500 1) 98716 Unique serial number. 2) U Unit was manufactured in Mocksville. 3) 77 Unit was manufactured in 1977. 4) 500 Product code for DR600. Also at this point in time, the compressor serial number was removed from the air end. In its place was stamped a unique air end serial number (see Air End Serial Numbers, Page 135) which was totally different from the compressor serial number. The compressor serial number was now stamped on the frame on the right hand side of the unit--when facing the drawbar looking toward the unit. Note: This may vary from unit to unit. Beginning in 1991 with unit serial number 194276, the year of manufacture was removed from the sedal number. A typical serial number looked as follows: 195200U578. Also in 1991, at unit serial number 199888, the serial number was no longer stamped on the frame of the unit. Effective in August 1992, with unit sedal number 214473, the numeric year of manufacture was reinstated by using two letters that give you the actual month and year of manufacture. The month and year of manufacture is encoded into the serial number according to the coding system that follows. The new serial number plate will now show the model number for easier identification. This model number will be the nomenclature such as P185WJD. The letter immediately following the Model Year is a code that indicates the current model configuration of the unit. This is just one more feature that will make ordering service parts and referencing maintenance manuals easier. We have also had requests from the field to change to a model year on our units similar to that used by the automobile manufacturers. Starting Sept. 1, 1992, we changed to a model year that runs from September I to August 31 of the following year. For example, any unit manufactured between September 1, 1992, and August 31, 1993, will carry a 1993 model year designation. Units manufactured between September 1, 1993, and August 31, 1994 will be 1994 models, etc. The new metal serial number plate will look as follows: Sequential, Non- Mocksville Month of Year of Product duplicating Sedal No. P~ant ~. Manufacture Manufacture Code '~I~.GERSOlkI.-RA ~ID C(~glPA~Pf~ I:~I~TAI~LE MOCKSV, ILLE, NI~RTH CA~I'OLJ~27028 .Current Model , .~. ~_ __/~, / ..... C) I ~'~'~UKC32~ I C) SERIAL NUMBER I E ~,zl~ / ~3.z c''' I UMBIIF R / ~4ODEL / CO~lm~.~ ressure C M __Engine Model Year - Sept.1 through Aug.31 of following year. Whispedzed or S = Standard 107 SHERIFF'S RETURN - CASE NO: 2001-02394 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FAIRVILLE COMPANY THE VS SHAULL EQUIPMENT AND SUPPLY CO REGULAR RICHARD SMITH , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE SHAULL EQUIPMENT AND SUPPLY COMPANY DEFENDkNT , at 0015:29 HOURS, on the at 100 MARKET ST LEMOYNE, PA 17043 SANDY KOSER (SECRETARY) a true and attested copy of COMPLAINT & NOTICE Sheriff or Deputy Sheriff of who being duly sworn according was served upon 30th day of April by handing to to law, the , 2001 together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Ans e : Service 9.92 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 37.92 05/09/2001 BALABAN & BALABA/~ _ By: ~eriff Sworn and Subscribed to before me this 2 ~/.~ day of ~2~! A.D. -/'~ho~otary ~ f7 SHERIFF'S RETURN - OUT OF COUNTY. CASE NO: 2001-02394 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FAIRVILLE COMPAiqY THE VS SHAULL EQUIPMENT AND SUPPLY CO Thomas Kline duly sworn according to law, says, that he made and inquiry for the within named DEFENDANT Sheriff or Deputy Sheriff who being a diligent search and , to wit: FITCH BRIAN but was unable to locate Him deputized the sheriff of YORK serve in his bailiwick. County, the within COMPLAINT & NOTICE He therefore Pennsylvania, to On May 9th , 2001 attached return from YORK Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 05/09/2001 BALJkBAN & BALABAN Sworn and subscribed to before me this 2.~ day of ~ A.D. Prot honot'ar~; , this office was in receipt of the Sheriff of Cumberland County 2of2' COUNTY OF YORK OFFICE OF THE SHERIFF 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN SERVICE CALL (717) 771-9601 INST~CTIONS PLEASE TYPE ~LY LI~s I TO 12 1. PLAINTiFF/S/ The 3. DEFENDANT/S/ SERVE 2. COURT NUMBER 0 1 -- 2 3 9 4 ~a±~±l. le Company, L.P. 4. TYPE OF WRIT OR COMPLAINT Notice & Shatll. 1 ~qui.pment & SUpD]_y, CO. Com?!aint AT 7. INDICATE SERVICE: I~ PERSONAL [] PERSON IN CHARGE ~ D E P UTIZEC um ~O~:EI~x~Et ~ [] 1 ST CLASS MAIL [] POSTED NOW '] / 9 4 / (~ 1 19 I, SHERIFF OF)fBRI(]~OUNTY,~A, do hereby_d~ipJ~ze the sheriff of Vo rk COUNTY to e~/~[~_it~and, j,n~ake~16L"~.l~?~r~of according to law. This deputation being made at the request and risk of the plaintiff,s'" ~ ,,~ ~'"" 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO SE LEVIED. ATTACHED, OR SOLD. Deborah Smige 1. sky 6. ADDRESS (STREET OR RFD WITH BOX NUMBER, APT NO., CITY. BORO, TWp.. STATE AND ZIP CODE 448 Tanglewood Lane, Dal].astown, PA n OTHER OUT OF COUNTY CUMBERLAND ADVANCEDF EE PAID BY SHERIFF NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN * Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriff's sale thereof. 9. TYPE NAME AND ADDRESS of ATTORNEY/ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER BALABAN & BALABAN 12, SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). CUMBERLAND CO. SHERIFF SPACE BELOW FOR USE OF THE SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 13. I acknowledge receipt of the writ SIGNATURE OF AUTHORIZED CLERK 1~. D~t~ R~c~ived 15. Expiration/Hearing Date or complaint as indicated above. R o AH R E N S _ ------ 5 - 2 5 - 01 16. HOW SERVED: PERSONAL ( ) RESIDENCE~ POSTED ( ) POE ( ) SHERIFF'S OFF ( ) OTHER ( ) SEE REMARKS 17, [~ I here. l~ certify and return a NOT FOUND becaLdqe I ~ L~able to locate the individual, company, corporation, etc, named above. (See remarks below.) 18. NA~IE ~I~TITLE OF IN~IVlDI~F:~qVED ,q~ A~p.R~S HERE IF NOT SHOWN ALCOVE Relattanship to Defendant 19. Dat~ o~ Servicel 20. Time of Service 21.~TTEMPTSID4telTimoIMilesl InLlOatelTimelMItas[Int. Date Time Miles Int. Date Tirade Milesl Int. Date TimeIMlles' int. DateiTime!Miles nt .REMARX?/ Iw' I/ I I I I [ I I I i I I / ', 23. Advance Costs :~4. Service Costs 25. N/F 26. Mileage 27. Postage 28. Sub Total 29. Pound 30. Notary Fee 31. Surcharge 32. Total Costs 33. Cost Due or Refund 34. Foreign County Costs 35. Advance Costs 36. Service Costs 37. Notary Cert. 38. Mileage/Postage/N.E 39. Total Costs I 40. Cost Due or Refund 41, AFFIRMI:I3 and subscJr[bed to befo'~e ma th,s 4 44. Signature of 4""- · / __.!3O,P~'~ RIAL~ . ~ ~nn145. Signature of York 48. Dat~ ~.uayo, j ..~lp;~,.__~d~p, piCpll.~~. ~ ~_.~[~.~_ County Sheriff ~3. Y'~~a~~ WILLIAM M. HOSE 5-4-01 /' ~,,~,~ff' T~ll~' 1~- , / 46. Signature of Foreign 49. Date MY COMMI_S~ION _EXPIRES ~pr ~ ~'~M~ County Shedff 50. I ACKNOWLEDGE RECEIPT OF THE SHERIFF'SlqETURN SIGNATURE 51. Date Received OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriff's Office 4. BLUE - Sheriff's Office COUNTY OF YORK OFFICE OF THE SHERIFF 28 EAST MARKET ST,, YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN 1. PLAINTIFF/S/ SERVICE CALL (717) 771-9601 INSTRUCTIONS PLEASE TYPE O~Y UNES 1 TO 12 DO NOT DETACH ANY COPIES. 4. TYPE OF WRIT OR COMPLAINT 5. NAME OF iNDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD SERVE ~ ~: --:~ ~,, .... ~l~,~,, 6. ADDRESS (STREET OR RFD WITH BOX NUMBER, APT NO., CITY, BoRe, TWR, STATE AND ZIP CODE NOW ~ ~ ~ .t / ~ ~ 19 __ I, SHERIFF O~'?OI~K~eUNTY, PA, do her~y deputize the sheriff of ' ?; ~ COUN~ to execute this Writ and make return thereof according to law. This deputation being made at the request and risk of the'~laintiff. 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: SHERIFF O F~?~ U ~=~ [ ~ NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any ptaintiff herein for any loss, destruction, or removal of any property before sheriff's sale thereof. 9. TYPE NAME AND ADDRESS of ATTORNEYIORIGINATOR and SIGNATURE 10 TELEPHONE NUMBER 11. DATE BLED ~L~.LABA~'t "?,L.A~Ar~ 4-',,~- ~ 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). SPACE BELOW FOR USEOF THE SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 13. i acknowledge receipt of the writ SIGNATURE OF AUTHORIZED CLERK 14. Date Received 15 Expiration/Hearing Date 16. HOW SERVED: PERSONAL ( ) RESIDENCE~. ) POSTED ( ) POE ( ) SHERIFF'S OFF ( ) OTHER ( ) SEE REMARKS 17, Q I hep~by certify and return a NOT FOUND beca~4se I,~am ~nable to locate the individual, company, corporation, etc, named above. (See remarks below.) 1 & N~AM E~ ~,ND TITLE) ~"~OF It~DIVIBO~,~, VEO I't~I~T~ ~L~D.J:) ~E S S HERE IF NOT SHOWN,ABOVE (Relationship to Defendant) 1 g. Date 'Df Service 20 Time of Service 23. Advance Costs 24. 34. Foreig~ County Costs 35.:, Ad~var~,e Costs 36. Service Costs 37. Notary Cert. 38. Mileage/Postage/N,F. 39, Total Costs SO J~NSWER. 41.AFFIRMED and S~lpSCribed to before me this z.aay o~ i ' ' . ,~ ^~,. ~ U ~ County Sheriff ~; · ,. MY aOMMIS/S~ON EXPIRES </ ~.~-~Z~'/ ~/_/~?' Count,/Sh,hff 50. I ACKNOWLEOGE RECEIPT OF THE SNERIFF'BBETURN SIGNATUHE OF AUTRORIZED ISSUING AUTHORITY AND TITLE 1.WRITE-IssuingAuthority ~.4~lNK-Attomey 3. CANARY- Sheriff's Office 4. BLUE-SherfffsOflice Service Costs 25, N/F 26. Mileage 27. Postage 28, Sub Total 29. Pound 30. Notary Fee 31. Surcharge 32. TotalCosts 33. Cost Due or Refum 40, Cost Due or Refund -- 47 .~e.t e/ 48. Da(e 49, Date 51. Date Received ! of 2 COUNTY OFYORK OFFICE OF THE SHERIFF 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN /,.nc. 1. PLAINTiFF/S/ The Fairvil!e Company, L.P. 3. DEFENDANT/S/ Shau!l Equipment & Supply Co., SERVICE CALL (717) 771-9601 INSTR~TiONS PLEASE TYPE ONLY LINES 1 TO 12 DO NOT DErr~ ANY COPIES, 2. COURT NUMBER 01--~-'~zj Civ i'l_ 4. TYPE OF WRIT OR COMPLAINT Notice & Complaint SERVE ~" 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, A3q'ACHED, OR SOLD. Brian Fitch 6. ADDRESS (STREET OR RFD WITH BOX NUMBER, APT NO., CITY, BORe, TWR, STATE AND ZIP CODE AT 448 Tana!ewood Lane, Da] ~astown' PA 7. INDICATE SERVICE: ~ PERSONAL [] PERSON IN CHARGE ~3 DEPUTIZE C url~l~T.l~l~d a 1 ST CLASS MAIL ~ POSTED ~ OTHER NOW 4/74/01 y . 19 I, SHERIFF OF~]~K:~OJ,IN.,T.Y, ~ do hereby dep.~ltijT~ the sheriff of O ~K COUNTY to e~a~nd ~a~[e r'~lrl, l~,~eof according to law. This deputation being made at the request and risk of the plaintiff. ~r. ~ SHERIFF ~ Y~'I~X~O U N T Y 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Cumberland OUT 0F COUNTY CUMBERLAND ADVANCED FEE PAID BY SHERIFF NOTE ONLY APPUCAeLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any properly under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the pad of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any propedy before sheriff's sale thereof. 9. TYPE NAME AND ADDRESS of AI'rORNEY/ORIGINATOR and SIGNATURE ~ 10. TELEPHONE NUMBER 11. DATE FILED NZXRZ BALABAN & BALABAN 27 N. FRONT ST. PO BOX 1284 HARRISBURG~ PA 4-24-01 1 71~R-12R4 m 234-3282 12. ~[~ SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). ~ CO. SHERIFF SPACE BELOW' FOR USE OF THE SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 13. I acknowledge receipt of the writ SIGNATURE OF AUTHORIZED CLERK 14 Date Received 15 Ex~ng Date or complaint as indicated above. R. AHRENS 4-25-01 PERSONAL~ REBIDENCET~ POSTED(~ POE,~ SHER'~F'SOEE(~ OTHER~, SEER~MAR~_ 16. HOW SERVED: =~A~aWrSI?,~_F~m,~IM"'"I Int. ID,t. I~.IM;~;I I,,. ID,te Time'Miles, '.tl D.telTime M,es Int. IDateiT~,,e ~d,a' Int. tDate Tme Miles n,- '1~1~1~'>11~1~1 i! 1/7~ I' I i I ~ I I I I' ~ I ~, i 82. REMARKS: ~_~23. Advance Costs 24. Service Costs 25. N/F 26. Mileage 27. Postage 28. Sub Total 29. Pound 30. Fee 100.00 ~ 24.00 12.42 36.42 4.00 Notary 34. Foreign County CO~ 35. Advance Costs 36. Service Costs 37. Notary Cert. 38. Mileage/Postage/NE 39. Total Costs SO AN WER. ,,.AFF,RME~, ............. '"--' t , ..S,g.a,.,eo, .r,_ :j./.~.,o! ~, I ~l~U~j,~.lAFFER~Nota~.l~l[~o)F~r)145. SignatureofYork"- ' / / ~2. day of .,.31~ ~ ~ ~'~¥~,X~.;0W~..'7'~-- County Sheri, ...~ .~-- -- -- MY CO CountY Sheriff 50. r ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. WHITE - Issuing Authority E. PINK - Attorney 3. CANARY - Sheriff's Office 4. BLUE - Sheriff's Oftice 31. Surcharge 32Z~ jo:a:; est s~ Cos;;: e~ 8~ e~ 40. Cost Due or Refund 5-4-01 49. Date 51. Date Recoived 1 COUNTY OF YORK ~ OFFICE OF THE SHERIFF sE.v,c, cALL (717) 771-9601 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN 1. PLAiNTIFF/S/ q'he !a~l~!.~ !~~ ("5'n~ 1~, 3. DEFENDANT/S/ 28 EAST MARKET ST., YORK, PA 17401 INSTRUCTIONS , PLEASE TYPE ONLY LINES 1 TO 12 .,DO NOT DETACH ANY COPIES. SERVE ~' 5. NAME OF INDIVIDUAL, COMPAN~ CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATFACHED, OR SOLD / NOW "" ' '~ ' © 19 __ I, SHERIFF O~"O'RYK%COUNTY, PA, do hereby deputize the sheriff of · ~ k ~, cOUNTY to execute this Writ and make return thereof according to law. This deputation being made at the request and risk of the Plaintiff. OTHER NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B, WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same ~uithout a w~tchman, in custody of whomever is found in possession, affer notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for a~y losS, destruction, or removal of any property before shedff's sale thereof. 9, TYPE NAME~O ADD? ,ESS of ATTORNEY/ORIGINATOR and SIGNATURE 110 TELEPHONE NUMBER 11. DATE FILED :; ,~.-.-.t.a4 12{~BLI~ ~I[:~T~F_, SERVICE COPT TO NAME AND ADDRESS BELOW: (This area must be oompletod if notice is to be mailed). SPACE BELOW FOR ~SE OF THE SHERIFF ONLY -DO NOT WRITE BELO~ THIS LINE t 13. I acknowledge receipt of fhe wril SIGNATURE OF AUTHORIZED CLERK f 4 Date Received 15 Expiration/Hearing Date or complai.t as indicated above. R. d, 2l~E:i~ ~ ~gr,_iq.. ,. 16. HOW SERVED: PERSONA~. ) RESIDENCE]i(. ) PORTED ( ) POE ( ) SHERIFF'S OFF ( ) OTHER { ) SEE REMARKS 17. El [ hereby certify and return~ NOT F,,OUflD because- I am unable to locate the individual, company, corporation, etc, named above. See remarks below ) 18~ NAMI~ AND TITLE OF INDIVIDU~L"~I~VED I LtS~ AD~)RI~ HERE IF NOT SHOWN ABOVE Relationship to Defendant 19. Date Of Se~ice 20. T me o Serv ce it. ATTt~PTSI D.te~ t~.l Mil.~] I~t I D.~. I 'rim. Mil.~l Ira. I Dat. ! time l Mge~l ~nt. I Date T, me l M,e~I I.t. I D.te i time"M,e~ Iht I D.te T m. 'M ~e~ .t 22. REMARKS: 23.[00.0!Advance Costs 24.~.~[ , ij[jService Costs 25. N/F 26.~.~Mileage 27. Postage 2~.~. ~4'Sub T~ta[ 29. Pound q.30' ~.~N°ta~ Fee 31. Surcharge 32.,~: · ~ ~T°tal Costs 33. Cost~,~., ;Due or Refund ~. Foreign County Cos~ [35. Advanc~s~ ~. Se~ice Costs 37. No~ Ce.. 38. Mileage/Pos~ge/N.F. 39, Total Costs 40. Cost Due or Refund Dec. Sheriff ~) 4fi davof ~iAY ~ 2~10- 45. Signature of Yo~ ' ' ~ ~ ~ · ~ ' "~ Coun~ Sheriff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA THE FAIRVILLE COMPANY, L.P. Plaintiff SHAULL EQUIPMENT AND SUPPLY COMPANY, DEBORAH SMIGELSKY, and, BRIAN FITCH, jointly and severally, Defendants CIVIL ACTION No. 01-2394 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE TO ENTER JUDGMENT BY DEFAULT To the Prothonotary: Kindly enter judgment in favor of the Plaintiff, The Fairville Company, L.P., and against Defendant Deborah Smigelsky and Defendant Brian Fitch, jointly and severally, for want of an answer, and assess the Plaintiff damages as follows: Amount claimed in Plaintiff's Complaint Interest from April 24, 2001 ~ 6% Sub-total: Court Costs (to be applied by Prothonotary) $25,738.31 TOTAL: $25,557.66 180.65 $ $ It is certified that a written notice of intention to file this praecipe was mailed to the above- named defendants against whom judgment is to be entered and to their attorney of record, if any, after the default occurred and at least 10 days prior to the date of the filing of this praecipe. Tree and correct copies of the Pa. R.Civ.P. Rule 237.l(a)(2) Notices to Defendants Deborah Smigelsky and Brian Fitch are attached hereto as Exhibit "A". Respectfully submitted, BALABAN AND BALABAN Attomey~l.D. #79984 27 N. Front Street P. O. Box 1284 Harrisburg, PA 17108-1284 (717) 234-3282 Attorney for Plaintiff 2 IN THE COURT OF COMMON PLEAS ~' ii CUM~E]~L,ANI) COUNTY, PENNSYLVANIA THE FAIRVILLE COMPANY, L.P. Plaintiff SHAULL EQUIPMENT AND SUPPLY COMPANY, DEBORAH SMIGELSKY, and, BRIAN FITCH, jointly and severally, Defendants CIVIL ACTION No. 01~2394 CIVIL TERM JURY TRIAL DEMANDED To: DEBORAH SMIGELSKY, Defendant Date of Notice: May 22, 2001 IMPORTANT NOTICE PURSUANT TO PA. R. Civ. P. RULE 237.1(a)(2). YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 BALABAN AND BALABAN //Michael ~.~rown Attorney I.D. #79984 27 N. Front Street P. O. Box 1284 Harrisburg, PA 17108-1284 (717) 234~3282 Attorney for Plaintiff, IEXHIBff CERT/FICATE OF SERVICE AND NOW, this 22~d day of May 2001, I, Michael V. Brown, Esquire, hereby certify that on this day, I served a true and correct copy of the foregoing Pa. R.Civ. P. Rule 237.1 (a)(2) Notice of Praeeipe to Enter Judgment By Default upon the following individuals by placing this document in the United States Mail, postage prepaid, in Harrisburg, Pennsylvania: John W. Purcell, Esquire Purcell, Krug & Hailer 1719 North Front Street Harrisburg, PA 17102 Attorney for Defendant Shanll Equipment and Supply Company Deborah Smigelsky 448 Tanglewood Lane Dailastown, PA 17313 Brian Fitch 448 Tanglewood Lane Dallastown, PA 17313 Michael V. ~l~own 2 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA THE FAIRVILLE COMPANY, L.P. Plaintiff SHAULL EQUIPMENT AND SUPPLY COMPANY, DEBORAH SMIGELSKY, and, BRIAN FITCH, jointly and severally, Defendants CIVIL ACTION No. 01-2394 CIVIL TERM JURY TRIAL DEMANDED To: BRIAN FITCH, Defendant Date of Notice: May 22, 2001 IMPORTANT NOTICE PURSUANT TO PA. R.Civ.P. RULE 237.1(a)(2). YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 By: BALABAN AND BALABAN 27 N. Front Street P. O. Box 1284 Harrisburg, PA 17108-1284 (717) 234-3282 Attorney for Plaintiff CERTIFICATE OF SERVICE AND NOW, this 22~ day of May 2001, I, Michael V. Brown, Esquire, hereby certify that on this day, I served atme and correct copy of the foregoing Pa. R.Civ. P. Rule 237.1(a)(2) Notice of Praeeipe to Enter Judgment By Default upon the following individuals by placing this document in the United States Mail, postage prepaid, in Harrisburg, Pennsylvania: John W. Purcell, Esquire Purcell, Krug & Hailer 1719 North Front Street Harrisburg, PA 17102 Attorney for Defendant Shaull Equipment and Supply Company Deborah Smigelsky 448 Tanglewood Lane Dailastown, PA 17313 Brian Fitch 448 Tanglewood Lane Dailastown, PA 17313 2 CERTIFICATE OF SERVICE AND NOW, this 7th day of June 2001, I, Michael V. Brown, Esquire, hereby certify that on this day, I served a true and correct copy of the foregoing Praecipe to Enter Judgment By Default upon the following individuals by placing this document in the United States Mail, postage prepaid, in Harrisburg, Pennsylvania: Brian Fitch 448 Tanglewood Lane Dallastown, PA 17313 Deborah Smigelsky 448 Tanglewood Lane Dallastown, PA 17313 John W. Purcell, Jr,, Esquire Purcell, Krug & Hailer 1719 North Front Street Harrisburg, PA 17102-2392 Attorney for Defendant Shaull Equipment and Supply Company ~chael V/Brown IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA THE FAIRVILLE COMPANY, L.P. Plaintiff SHAULL EQUIPMENT AND SUPPLY COMPANY, DEBORAH SMIGELSKY, and, BRIAN FITCH, jointly and severally, Defendants CIVIL. ACTION No. 01-2394 CIVIL TERM JURY TRIAL DEMANDED NOTICE OF ENTRY OF JUDGMENT TO: Brian Fitch, Defendant Pursuant to the requirements of Pa. R.C.P. 236, you are hereby notified that on the ~ day of June 2001 the following Judgment has been entered against you by default in the above,captioned case. Judgraent was entered against you in the mount of $ and in favor of The Fairville Company, L.P. Date Prothonotary I hereby certify that the names and addresses of the proper persons to receive this notice are: Brian Fitch 448 Tanglewood Lane Dallastown, PA 17313 Deborah Smigelsky 448 Tanglewood Lane Dallastown, PA 17313 Defendant Defendant John W. Purcell, Jr., Esquire Purcell, Krug &Haller 1719 North Front Street Harrisburg, PA 17102-2392 Attorney for Defendant Shaull Equipment and Supply Company IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA THE FAIRVILLE COMPANY, L.P. Plaintiff SHAULL EQUIPMENT AND SUPPLY COMPANY, DEBORAH SMIGELSKY, and, BRIAN FITCH, jointly and severally, Defendants CIVIL ACTION No. 01-2394 CIVIL TERM JURY TRIAL DEMANDED NOTICE OF ENTRY OF JUDGMENT TO: Deborah Smigelsky, Defendant Pursuant to the requirements of Pa. R.C.P. 236, you are hereby notified that on the 0 day of June 2001 the following Judgment has been entered against you by default in the above-captioned case. Date Judgment was entered against you in the amount ors c~.~ 73~' 3/ and in favor of The Fairville Company, L.P. I hereby certify that the names and addresses of the proper persons to receive this notice are: Brian Fitch 448 Tanglewood Lane Dallastown, PA 17313 Deborah Smigelsky 448 Tanglewood Lane Dallastown, PA 17313 Defendant Defendant John W. Purcell, Jr., Esquire Purcell, Krug &Haller 1719 North Front Street Harrisburg, PA 17102-2392 Attorney for Defendant Shaull Equipment and Supply Company ~!~ichael ~. Brown, Esquire Attorney for Plaintiff THE FAIRVILLE COMPANY, L.P. Plaintiff VS, SHAULL EQUIPMENT AND SUPPLY COMPANY, DEBORAH SMIGELSKY, AND BRIAN FITCH, jointly and severally, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-2394 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD TO: The Fairville Company, L.P., Plaintiff and William R. Balaban, Esquire Michael V. Brown, Esquire and Deborah Smigelsky, Defendant Brian Fitch, Defendant You are hereby notified to plead to the enclosed New Matter and Cross Claim within Twenty (20) days from service hereof, or a default judgment may be entered against you. Date: June 14, 2001 PURCELL, KRUG & HALLER BY ~- ~ 17~1~ North Front Street 'F~rrisburg, PA 17102 (717) 234-4178 I.D. #29955 Attorneys for Defendants Shaull Equipment and Supply Company THE FAIRVILLE COMPANY, L.P. Plaintiff VS, SHAUI_L EQUIPMENT AND SUPPLY COMPANY, DEBORAH SMIGELSKY, AND BRIAN FITCH, jointly and severally, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-2394 CIVIL TERM : JURY TRIAL DEMANDED ANSWER OF SHAULL EQUIPMENT AND SUPPLY COMPANY TO COMPLAINT 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part and denied in part. It is admitted that Fitch was an employee of Defendant Shaull. The balance of the averment is denied as a conclusion of law. 6. Denied. See New matter below. A proper claim for damages would place the claim within the limits for compulsory arbitration. BACKGROUND 7. Denied. Exhibit '%" speaks for itself. 8. Denied. Exhibit "S" speaks for itself. 9. Denied. Exhibit "B" speaks for itself. 10. Denied. Exhibit "C" speaks for itself. 11. Denied. Exhibit "D" speaks for itself. 12. Denied as stated. Defendant Shaull made no representations directly to Plaintiff. To the extent that Defendant Fitch made representations, after reasonable investigation, Defendant Shaull is without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded. In further reply, Defendant Shaull is unaware of what Plaintiff understood, and strict proof thereof is also demanded at trial It is Defendant Shaull's belief, and Defendant Shau~ therefore avers, that Defendant Fitch, operating in conjunction with Defendant Smigelsky, arranged the transaction referenced in prior paragraphs, for the sole purpose of benefitting Defendant Fitch and/or Defendant Smigelsky, and thereby committed fraud upon the Plaintiff and Defendant Shaull. Defendant Shaull further believes and therefore avers that Defendants Smigelsky and Fitch conspired with each other to defraud both Defendant Shaull and Plaintiff. 13. Denied. See response to Number 12. 14. Denied. See response to Number 12. in further reply, Exhibit "E" speaks for itself. 15. Denied as stated. However, subject to the qualifications set forth in paragraph 12 above, Defendant Shaull believes this is correct. 16. Denied as stated. Defendant Shauli believes that Defendant Smigelsky did offer to trade in a lawn tractor in the process of the transaction. 2 17. Denied. After reasonable investigation, Defendant Shaull is without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at trial. However, as of the present date, Defendant Shaull has found no evidence that the tractor existed, or if it existed, who it was traded to. 18. Denied as stated. Subject to the qualifications set forth in paragraph 12 above, Defendant believes that the way the transaction was arranged as stated in this paragraph is correct. 19. Denied. Exhibit "F" speaks for itself. 20. Denied. Exhibit "F" speaks for itself. 21. Denied. Exhibit "B" speaks for itself. In further reply, the amount of indebtedness should not exceed the amount paid by the Plaintiff. 22. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at trial, tn further reply, subject to the response set forth in paragraph 12 above, Defendant Shaul~ believes that credits were given, however the amount of stated indebtedness does not appear to have been calculated correctly. 23. Denied as stated. See paragraph 12 above. In further reply, Defendant has not found any evidence showing that any equipment was purchased by Defendants Smigelsky or Fitch with the funds. Defendant Smigelsky now claims that it was purchased, but stolen by someone named "Jean" (no last name) who may have absconded with it to Canada. See Plaintiff's Exhibit "H". 3 24. Denied in part and admitted in part. Exhibit "G" speaks for itself. Admitted that it was issued to the Payee listed thereon. The balance of the averment is denied as, after reasonable investigation, Defendant Shaull is without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at trial. 25. Denied. After reasonable investigation, Defendant Shauil is without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at trial. Defendant believes, however that certain payments may have been made by Defendants Smigelsky and/or Fitch to reduce the indebtedness to Plaintiff. In further reply, if the Defendants made payments on the obligation, the amount due should be much lower than stated. 26. Denied. This paragraph is directed to separate Defendants and no response is required. To the extent that a response is required by the Defendant Shauli, Shaull believes that Smigelsky has not made all payments on account of the transaction. 27. Denied. See response to paragraph 26. 28. Denied. Exhibit "B" speaks for itself. 29. Denied. Exhibit "B" speaks for itself. 30. Denied. Exhibit "B" speaks for itself. 31. Denied as a conclusion of law. In further reply, see response to paragraph 27. 32. Denied. Exhibit "H" speaks for itself. 33. Denied. Exhibits "D" and "l" speak for themselves. 34. Denied. Defendant Shaull is without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at trial. In further reply, Defendant Shaull has no evidence that the Equipment ever existed. 35. Denied. Exhibit "J" speaks for itself. 36. Admiffed 37. Denied. After reasonable investigation, Defendant Shaull is without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at trial. In further reply see responses to paragraphs 6, 21, 22 and 25 above, and New Matter below. COUNT I ~ BREACH OF CONTRACT The Fairville Company, L.P, v. Deborah Smi~lelskv 38-41. No response required as these paragraphs are directed for response by other Defendants. COUNT II FRAUD AND MISREPRESENTATION The Fairville Company, L.P.v. Shaull Equirtment and Sul31)lv Company, Deborah Smiqelskv and Brian Fitch, iointly and severallv 42. No response required. 43. Denied as a conclusion of law. 5 44. Denied as a conclusion of law. 45. Denied. After reasonable investigation, Defendant Shaull is without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at trial. In further reply, see response to paragraph 12. 46. Denied. After reasonable investigation, Defendant Shaull is without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at trial. In further reply, see response to paragraph 12. 47. Denied inasmuch as Defendant Shaull was not involved in the transaction directly, but was itself defrauded by the Defendants Smigelsky and Fitch, Defendant Shaull believed in the existence of the equipment based on the representations of Defendants Smigelsky and Fitch. Also denied as a conclusion of law. 48. See response to 47. 49. Denied. If any false information was given to Plaintiff, it was as a result of the actions and fraud of the Defendants Smigelsky and/or Fitch not that of Defendant 8haull. 50. Denied. After reasonable investigation, Defendant Shaull is without knowledge or information sufficient to form a belief as to the truth of the averments and strict proof thereof is demanded at trial. 51. Denied. After reasonable investigation, Defendant Shaull is without knowledge or information sufficient to form a belief as to the truth of the averments and strict proof thereof is demanded at trial. 6 52. Denied as a conclusion of law. 53. Denied as a conclusion of law. 54. Denied as a conclusion of law. 55. Denied as a conclusion of law. 56. Denied. Defendant Shaull has not profited from any fraudulent conduct. If any funds were retained as a result of the fraudulent conduct of the Defendants Smigelsky and/or Fitch, it was by the Defendants Smigelsky and/or Fitch. 57. Denied. After reasonable investigation, Defendant Shaull is without knowledge or information sufficient to form a belief as to the truth of the averments and strict proof thereof is demanded at trial, In further reply, if properly calculated, Plaintiff has nat suffered damages in the amount claimed. 58. Denied. After reasonable investigation, Defendant Shaull is without knowledge or information sufficient to form a belief as to the truth of the averments and strict proof thereof is demanded at trial. In fur[her reply, if properly calculated, Plaintiff has not suffered damages in the amount claimed. 59. Denied, After reasonable investigation, Defendant Shaull is without knowledge or information sufficient to form a belief as to the truth of the averments and strict proof thereof is demanded at trial. In further reply, if properly calculated, Plaintiff has not suffered damages in the amount claimed, '7 60. Denied as a conclusion of law and as being speculative. 61. Denied. This is a conclusion of law. Plaintiff is not entitled to punitive damages as a matter of ~aw. COUNT III - CONSPIRACY The Fairville Company, L.P.v. Shaull Equipment and Sul)Plv Company, Deborah Smi¢lelskv and Brian Fitch, ioinqlv and severallv 62. No response required. 63. Denied as a conclusion of law. 64. Denied as a conclusion of law. 65. Denied. To the contrary, if there was any conspiracy, it was between the Defendants Smigelsky and Fitch, there was no conspiracy or intent to deceive or defraud on the part of Defendant Shaull. 66. Denied. Defendant Shaull is without knowledge or information sufficient to form a belief as to the truth of the averments and strict proof thereof is demanded at trial. WHEREFORE, Defendant Shaull requests this Honorable Court to enter judgment in favor of the Defendant Shaull and against the Plaintiff, and dismiss the Complaint. NEW MATTER 8 67. Plaintiff had a duty to determine the veracity of the representations made to it by the Defendants, including but not limited to the existence and location of the sprayer to be used as collateral, and the existence and location of the trade in property. 68. Plaintiff had a duty to insure the collateral under it's agreements. 69. Plaintiff neglected its duty to provide insurance for the co~lateral. 70. Plaintiff's claims are barred by its own negligence in not verifying the existence of the collateral, and in failing to properly insure the same, thereby mitigating its damages. 71. Plaintiff has incorrectly tabulated the amount of indebtedness, by failing to give proper credit for admitted payments. 72. Using Plaintiff's figures, the total principal amount due should be only $14,296.64. 73. Plaintiff has failed to state a cause of action as to the Defendant Shaull, CROSS-CLAIM 74. Paragraphs 1 through 73 are hereby incorporated by reference as if set forth at length. 75. Defendants Smigelsky and Fitch perpetuated a fraud upon the Defendant Shaull. 76. Defendants Smigelsky and Fitch are wholly responsible for their own actions as it is the Defendants Smigelsky and Fitch who received all funds from the Plaintiff as a result of the fraudulent transaction, using Defendant Shaull as a conduit in order to effectuate the fraud. 9 77. As a result of the fraud of Defendants Smigelsky and Fitch, the Defendants Smigelsky and Fitch are liable over to the Defendant Shaull, jointly and severally, for the full amount of any judgment entered against the Defendant Shaull in this matter by the Plaintiff. WHEREFORE, Defendant Shaull requests this Honorable Court to enter judgment in favor of the Defendant Shaull and against Defendants Smigelsky and Fitch, for the full amount of any judgment rendered against Defendant Shauli by the Plaintiff, plus interest and costs of suit. Respectfully submitted, PURCELL, KRUG & HALLER [~/t'ZX #29955 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 l0 VERIFICATION I verify that the statements made in the foregoing Answer of Shaull Equipment and Supply Company to Complaint are true and correct. Date: [ understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §,~904 relating to unsworn falsification to authorities. June 14, 2001 ~ .~ ~C/~z-~ Lester W. Ginanni, Jr. Vice ?residemt of Sales ~ff CERTIFICATE OF SERVICE I, John W. Purcell, Jr., Attorney for the Defendant Shaull Equipment and Supply Company, hereby certify that a true and correct copy of the foregoing was served on the following by sending said copy to following by first class U.S. mail on June 14, 2001: William R. Balaban, Esquire Michael V. Brown, Equire Balaban and Balaban 27 North Front Street P.O. Box 1284 Harrisburg, PA 17108 Attorneys for The Fairville Company, L.P., Plaintiff Deborah Smigelsky, Defendant 448 Tanglewood Lane Dallastown, PA 17313 Brian Fitch, Defendant 448 Tanglewood Lane Dallastown, PA 17313 LL~, jR. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA THE FAIRVILLE COMPANY, L.P. Plaintiff SHAULL EQUIPMENT AND SUPPLY COMPANY, DEBORAH SMIGELSKY, and, BRIAN FITCH, jointly and severally, Defendants CIVIL ACTION No. 01-2394 CIVIL TERM JURY TRIAL DEMANDED REPLY TO NEW MATTER OF DEFENDANT SHAULL EQUIPMENT AND SUPPLY COMPANY AND NOW, this 6th day of July 2001, comes the Plaintiff, The Fairville Company, L.P., by and through its attorneys Balaban and Balaban, and files this Reply to the New Matter of Defendant Shaull Equipment and Supply Company: 67-70. Denied as conclusions of law to which no response is legally required. 71. Denied as a conclusion of law to which no response is legally required. To the extent a response it required, the averment in paragraph 71 of Defendant's New Matter is specifically denied and proof thereof demanded at trial. By way of further response, replying Plaintiff directs Defendant to paragraphs 14 and 22 of the Plaintiff's Complaim which said paragraphs are incorporated herein as if fully restated in their entirety. 72. Denied as a conclusion of law to which no response is legally required. To the extent a response is required, the averment in paragraph 72 of Defendant's New Matter is specifically denied and proof thereof demanded at trial. By way of further response, replying Plaintiff directs Defendant to paragraphs 7, 8, 13, 14, 16, 18, 19, 21, 22, 24, 25, 28 & 37 of PlaintiWs Complaint which said paragraphs are incorporated herein as if fully restated in their entirety. 73. Denied as a conclusion of law to which no response is legally required. WHEREFORE Plaintiff, The Fairville Company, L.P, requests this honorable Court to enter judgment in its favor and against Defendants Shaull Equipment and Supply Company and to award damages to Plaintiffas prayed for in PlaintifFs Complaint. Date: July 6, 2001 By: RespectfUlly submitted, William Balab , q ' I.D. #19334 Michael V. Brown, Esquire I.D. #79984 Balaban and Balaban 27 N. Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 (717) 234-3282 (voice) (717) 233-4264 (facsimile) attomeys~balabanlaw.com VERIFICATION I, Michael V. Brown, Esquire, attorney for the Plaintiff, hereby state, subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsification to authorities, that I am authorized to make this verification, and that the facts set forth in the foregoing attached Reply to New Matter are tree and correct to the best of my knowledge, information and belief. This verification is made pursuant to Pa. R.Civ. P. Rule 1024(a) & (c), and is based upon Plaintiffs discovery efforts and documents on file with this Court. Plaintiff is outside the jurisdiction of this Court and its verification cannot be obtained within the time allowed for this filing and will be supplemented. Dated: July 6, 2001 CERTIFICATE OF SERVICE AND NOW, this 6th day of July 2001, I, Michael V. Brown, Esquire, hereby certify that on this day, I served a true and correct copy of the foregoing Reply to New Matter of Defendant Shaull Equipment and Supply Company upon the following individuals by placing this document in the United States Mail, postage prepaid, in Harrisburg, Pennsylvania: Deborah Smigelsky 448 Tanglewood Lane Dallastown, PA 17313 Brian Fitch 448 Tanglewood Lane Dallastown, PA 17313 John W. Purcell, Jr. Purcell, Krug &Haller 1719 North Front Street Harrisburg, PA 17102 Attorney for Defendant Shaull Equipment and Supply Company · 4~lichael,V. Brown