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HomeMy WebLinkAbout04-3713MATTHEW M. NICASTRO and JENNIE M. NICASTRO Plaintiffs : IN COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ; : No. 04-3713 .* NATIONWIDE CYBER SYSTEMS, INC. : CIVIL ACTION - LAW Defendant : JURYTRIAL DEMANDED NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you mast 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 yon, You are warned that ifyou 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 thc 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. Court Administrator Cumberland County Court House 4va Floor Carlisle, PA 17013 Telephone No. (717) 240-6200 .Americans with Disabilities Act of 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. MATTHEW M. NICASTRO and JENNIE M. NICASTRO Plaintiffs NATIONWIDE CYBER SYSTEMS, INC. Defendant : IN COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :No. CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT 1. Plaintiffs, Matthew M. Nicastro and Jennie M. Nicastro are adult individuals principally residing at 25 Courtyard Drive, Carlisle, Pem~sylvania 17013. 2, Defendant, Nationwide Cyber System, Inc., is a business corporation located in 6100 Hollywood Boulevard, Hollywood, Florida 33024-7900. 3. Defendant is in the business of selling and locating Interact terminal kiosks for the providing of Internet services to the general public in public locations. 4. In or about March 2003, Defendant advertised the sale of its Internet terminal kiosks on a national basis, including but not limited to, television commercials on the Science Fiction Cable Channel as well as sent advertising via United States mall. 5. In or about March 2003, Plaintiffs observed Defendant's television commercial and contacted Defendant regarding its product and services. 6. In or about March 2003, Defendant mailed product information to the Plaintiffs to their Cumberland County, Pennsylvania residence regarding the purchase and locating of Defendant's Interact terminal kiosks. 7. In or about March 2003, Defendant and/or its representatives, agents or employees by and through the information sent to Plaintiffs represented that at least Six Hundred Dollars ($600,00) per month in revenue would be generated by each terminal in the first six months of operation. 8. In or about March 2003, Defendant and/or its representatives, agents, or employees represented to Plaintiffs that at least four (4) other potential investors were considering purchasing in the South Central Pennsylvania Region. 9. In or about March 2003, Defendant and/or its representatives, agents and/or its representatives, agents, or employees represented to Plaintiffs that investors would be limited to fifty (50) investors in Pennsylvania. 10. In or about April 1, 2003, Plaintiffs purchased an Interact terminal kiosk from Defendant as evidenced by a copy of Plaintiffs' check # 2452 attached hereto and incorporated herein as Exhibit A. 11. The initial Interact terminal kiosk was purchased by Plaintiffs for a cost of Fourteen Thousand Nine Hundred Ninety-Five dollars ($14,995.00) (the "Terminal"). 12. At all times pertinent hereto, Defendant and/or its representatives, agents and employees consistently represented to Plaintiffs that Defendant would secure satisfactory locations for the Terminal. 13. For several weeks following the purchase of the initial terminal, Plaintiffs contacted Adam Wesley, an employee, agent or representative of the Defendant, who promised on numerous occasions that he was working to find a location for the initial terminal in the South Central Pennsylvania area. 14. On or about April 2003, Plaintiffs was contacted by Adam Wesley, an employee, agent or representative of the Defendant, who indicated that a site had been located in Hershey, Pennsylvania, specifically with Hotel Hershey and other hotels in the Hershey area, which would accommodate three (3) Interact terminal kiosks. 15. In or about April 2003, Plaintiffs was contacted by Joe Pasquerello, an employee, agent or representative of the Defendant who offered to reduce the purchase price of two additional Internet terminal kiosks, by Three Thousand Dollars ($3,000.00) each if Plaintiffs purchased said terminals within two (2) days. 16. In reliance upon the representatives of Defendant and/or its representatives, agents and employees that these additional machines would be placed in hotels in the Hershey area immediately given the demand, the Plaintiffs purchased an additional two Internet terminal kiosks (the "Additional Terminals") through a Purchase Order and a copy of Plaintiffs' check # 2469 attached hereto and incorporated herein as Exhibit B. 17. The total purchase price for the Additional Terminals was Twenty-Three Thousand Nine Hundred Ninety Dollars ($23,990.00). 18. Approximately two (2) weeks following the purchase of the Additional Terminals, Plaintiffs attempted to contact Adam Wesley to inquire about the Hershey, Pennsylvania location for the Terminals. 19. Plaintiffs were informed by Defendant and/or its representatives, agent and employees that Adam Wesley no longer worked for Defendant and that Todd Nechtman was Defendant's agent, representative or employee assigned by Defendant to secure locations for Plaintiffs' Terminals. 20. Todd Nechtman, an agent, representative or employee of Defendant, represented to Plaintiffs that he had over ten (10) years experience as a locator of Internet terminal kiosks. 21. On or about May 20, 2003, the Terminals were delivered to Plaintiffs in Cumberland County, Pennsylvania. 22. Several weeks after the purchase of the Additional Termimals, Todd Nechtman, an agent, representative or employee of Defendant, then represented to Plaintiffs that Defendant was unable to secure the Hershey, Pennsylvania location(s) for Plaintiffs's Terminals 23. After approximately an additional two (2) weeks, Plaintiffs was contacted by Todd Nechtman, an agent, representative or employee of Defendant, who indicated that the only facility for a terminal which could be found was for the location of one (1) terminal approximately fifty (50) miles from Plaintiffs' home in York, Pennsylvania at the Quality Inn which hotel was not near the caliber of the Hershey Hotel as had been represented to Plaintiffs in purchasing the machines. 24. Any revenue generated from the terminal placed at the Quality Inn was well below the estimated profits represented by the Defendant and its agents in inducing Plaintiffs to purchase all of the terminals. 25. Defendant and/or its agents, representatives and employees failed to provide any assistance in locating the terminals despite repeated representations by Defendant's agents to Plaintiffs of the Defendant's ability to and extensive history of locating terminals for customers which was a principal reason for the high purchase price of the terminals. 26. Due to Defendant's failure to secure a location for the remaining terminals, Plaintiffs was forced to hire another locator, namely a Pamela King, at the additional cost of One Thousand Two Hundred Dollars ($1,200.00), who failed to place any of the terminals. 27. On or about June 15, 2003, Plaintiffs, through his own efforts, placed the second terminal at the business location of Gold's Gym located at 1225 Ritner Highway, Carlisle, Pennsylvania. 28. To date, the third terminal remains unlocated and non operational. 29. At all times pertinent hereto, the wireless access units of the two placed terminals and the unplaced third terminal were and remain non operational. 30. On numerous occasions beginning in or about June of 2003, Plaintiffs requested assistance from the Defendant to repair the non-operational terminals and received no response. 31. At all times pertinent hereto, Defendant and/or its representatives, employees or agents failed to adequately repair and/or provide Plaintiffs with satisfactory assistance for the repair of the terminals as represented as an inducement to purchase the terminals. 32. At all times pertinent hereto and due to Defendant's failure to adequately assist Plaintiffs, the Plaintiffs was forced to personally repairs or the terminals. 33. To date, the Plaintiffs has incurred additional set up and operational costs, including but not limited to, the costs to establishing DSL accounts, the cost of hiring an independent locator service, advertising and telephone costs, lost wages in an amount in of approximately Fourteen Thousand Seven Hundred Dollars ($14,700.00). COUNT I - BREACH OF CONTRACT 34. Paragraphs 1 through 33 or times Complaint are incorporated herein by reference as if fully set forth. 35. All ofthe delays, damages and injuries sustained by Plaintiffs are the direct and proximate result of Defendant's breach of its contract with Plaintiffs as follows: a. Failure to timely deliver the terminals. b. Sale of substandard quality terminals resulting in the non-operation of the wireless access units and failure of the terminals to function as represented. c. Failure to adequately repair or replace the terminals. d. Failure to adequately assist Plaintiffs in repairing the terminals. e. Failure to adequately secure satisfactory locations for Plaintiffs's terminals. £ Failure to adequately assist Plaintiffs in trying to secure satisfactory locations for Plaintiffs's terminals. 36. Defendant failed to sell terminals to Plaintiffs that conformed to the terms, requirements and standards of the contract between the parties. 37. The terminals as sold by Defendant were substantially impaired and defective rendering them unfit for their intended purpose of providing Internet access to the general public and in breach of the contract between the parties. 38. As the direct result of the aforesaid defects and breach of contract, Plaintiffs has sustained damages, including but not limited to, the purchase price for nonfunctioning terminals, the costs incurred to establish DSL accounts, the cost of hiring an independent locator service, telephone service costs, repair costs and time, costs incurred by down time and delays, and lost profits. WHEREFORE, Plaintiffs demand judgment against Defendant in amount of Fifty Three Thousand Six Hundred Eighty-Five Dollars ($53,685.00), together with all costs incurred to ship the terminals back to Defendant and any and all interest, costs, attorney fees and any other remedy this court deems just and approximate. COUNT H BREACH OF WARRANTY 39, Paragraphs 1 through 38 of this Complaint are incorporated herein by reference as is fully set forth. 40. All of the delays, damages and injuries sustained by Plaintiffs are the direct and proximate result of Defendant's breach of warranties as follows: a. Substandard quality of the terminals sold to Plaintiffs resulting in the non- operation of the terminals to function as represented. b. Failure to timely deliver the terminals. c. Failure to adequately repair or replace the terminals. d. Failure to adequately assist Plaintiffs in repairing the terminals. e. Failure to adequately secure satisfactory location for Plaintiffs's terminals, £ Failure to adequately assist Plaintiffs in trying to secure satisfactory locations for Plaintiffs's terminals. 4l. At the time of the sale of the terminals, Defendant was aware of Plaintiffs's intended and stated purpose of using the Terminals to provide Interact access to the general public in public locations. 42. Defendant impliedly warranted that the terminals were merchantable. 43. Defendant wan'anted that the terminals would be fit for the specific purpose for which they were intended; rarely the provision of Internet access to the general public in public locations. 44. Defendant warranted that the terminals would conform to the requirements set forth in the contract between the parties. 45. The terminals breached the warranties of Defendant that the terminals would conform to the requirements of the contract between the parties. 46. The terminals were substantially impaired rendering them unfit for their intended purpose of providing Internet access to the general public in public locations. 47. The terminals were substantially impaired rendering them unmerchantable. 48. As the direct result of the aforesaid defects and breach of warranties, Plaintiffs sustained damages, including but not limited to, the purchase prices for nonfunctioning terminals, the costs incurred to establish DSL accounts, the cost of hiring an independent locator service, telephone service costs, repair cost and time, costs incurred by downtime and delays and lost profits. WHEREFORE, Plaintiffs demand judgment against Defendant in amount of Fitly Three Thousand Six Hundred Eighty-Five Dollars ($53,685.00), together with all costs incurred to ship the terminals back to Defendant and any and all interest, costs, attorney fees and any other remedy this court deems just and approximate. COUNT III NEGLIGENCE 49. Paragraph 1 through 48 of this Complaint are incorporated herein by reference as if fully set forth. 50. All of the delays, damages and injuries sustained by Plaintiffs are the direct and proximate result of the negligent, careless and reckless manner in which Defendant sold the terminals as follows: a. Failure to timely deliver the terminals. b. Sale of substandard quality terminals resulting in the non-operation of the wireless access units and failure of the terminals to function as represented. c. Failure to adequately repair or replace the terminals. d. Failure to adequately assist Plaintiffs in repairing the terminals. e. Failure to adequately secure satisfactory locations for Plaintiffs's terminals. f. Failure to adequately assist Plaintiffs in trying to secure satisfactory locations for Plaintiffs's terminals. 51~ Defendant failed to sale terminals to Plaintiffs that conformed to the terms, requirements and standards of the contract between the parties. 52. The terminals as sold by Defendant were substantially impaired and defective rendering them unfit for their intended purpose of providing Internet access to the general public and in breach of the contract between the parties. 53. As the direct result of the aforesaid defects and negligence, Plaintiffs has sustained damages, including but not limited to, the purchase price for nonfunctioning terminals, the costs incurred to establish DSL accounts, the cost of hiring an independent locator service, telephone service costs, repair costs and time, costs incurred by downtime and delay and lost profits. WHEREFORE, Plaintiffs demand judgment against Defendant in amount of Fifty Three Thousand Six Hundred Eighty-Five Dollars ($53,685.00), together with all costs incurred to ship the terminals back to Defendant and any and all interest, costs, attorney fees and any other remedy this court deems just and approximate. COUNT IV NEGLIGENT MISREPRESENTATION 54. Paragraphs I through 53 of this Complaint are incorporated herein by reference as if fully set forth. 55. Defendant and/or its agents, representatives and employees represented that Defendant would secure satisfactorily locations for placing the terminals. 56. Defendant and/or agents, representatives and employees represented that Defendant's locations had several years of experience and success in securing satisfactory locations for placing the terminals. 57. Defendant and/or agents, representatives and employees represented that Plaintiffs would generate a minimum of Six Hundred Dollars ($600.00) per month per terminal for the first six months of operation. 58. Defendant and/or its agents, representatives and employees represented that a site in Hershey, Pennsylvania had been located that would accommodate three (3) terminals. 59. In reasonable reliance upon Defendant's representations, Plaintiffs purchased the terminals. 60. As a result of the Defendant's negligent representation, Plaintiffs sustained damages, including but not to, the purchase price for non functioning terminals, the costs incurred to establish DSL accounts, the cost of hiring an independent locator service, telephone service costs, repair costs and time, down time and delay costs and lost profits. WHEREFORE, Plaintiffs demand judgment against Defendant in amount of Fitly Three Thousand Six Hundred Eighty-Five Dollars ($53,685.00), together with all costs incurred to ship the terminals back to Defendant and any and all interest, costs, attorney fees and any other remedy this court deems just and approximate. COUNT V INTERNATIONAL REPRESENTATION 61. Paragraphs 1 through 60 of this Complaint are incorporated herein by reference as if fully set forth. 62. Defendant and/or its agents, representatives and employees represented that Defendant would secure satisfactorily locations for placing the terminals. 63. Defendant and/or agents, representatives and employees represented that Defendant's locations had several years of experience and success in securing satisfactory locations for placing the terminals. 64. Defendant and/or agents, represematives and employees represented that Plaintiffs would generate a minimum of Six Hundred Dollars ($600.00) per month per terminal for the first six months of operation. 65. Defendant and/or its agents, representatives and employees represented that a site in Hershey, Pennsylvania had been located that would accommodate three (3) terminals. 66. In reasonable reliance upon Defendant's representations, Plaintiffs purchased the terminals. 67. As a result of the Defendant's intentional representation, Plaintiffs sustained damages including but not limited to, the purchase price for non functioning terminals, the costs incurred to establish DSL accounts, the cost of hiring an independent locator service, telephone service costs, repair costs and time, down time and delay costs and lost profits. WHEREFORE, Plaintiffs demand judgment against Defendant in amount of Fii~y Three Thousand Six Hundred Eighty-Five Dollars ($53,685.00), together with all costs incurred to ship the terminals hack to Defendant and any and all interest, costs, attorney fees and any other remedy this court deems just and approximate. Respectfully Submitted, Salzmann, Hughes & Fishman, P.C. By: [ Sup C2'ID #58884 Me, sa K. Dively, Esquire .~p Ct ID #36780 ~ Salzmann, Hughes & Fishman, P.C. 455 Phoenix Drive, Suite A Chambersburg, PA 17201 (717) 263-2121 FAX: (717) 263-0663 Attorneys for Plaintiffs EXHIBIT A Date 4/30/03 Account 513041871 Check 2452, Amount S14,995.00 Date Presented 4/3~D03 ~VATted~WIDE CYBER SYSTEMS, INC. PURCHASE ORDER Route ID Number: 04130 6030 Hollywood Blvd., Suite 140, Hollywood, Florida 33024 Toll Free: 800-736-4511 · Local: 954-985-1737 · Toll Free Fax: 800~736-9979 Address: City: Purchaser's Name: Matt Nicastro 1224 Holly Pike Carlisle Home Phone: Qty State PA 717-385-4589 Business Phone: Description of Product and/or Equipment Zip 17013 717-24R-R39R Unit Price Total Publis Access Internet Terminal $11,995.00 $23,990.0 Special Provisions: Shipping and Handling All future re-orders will be priced (~. $1~1,995.00 Sales Tax (if applicable) - Total Purchase Price N/C N/A Less Deposit Total amount due prior to shipment Amount Due $23,990.0£ Purchaser acknowledges the receipt of all Disclosure documents from the Seller ten (10) business days prior to acceptance and deposit of funds. Seller agrees to sell and Purchaser agrees to buy equipment described above at the prices specified on the terms and conditions as set forth on this Agreement. IN WITNESS WHEREOF, this Agreement has been duly executed by the parties on the date set forth adjacent to the signatures of each party. Purchaser has read, fully understands and accepts this Agreement. Accepted and Approved: Date: Date: April 10,2003 EXHIBIT B Date 4/30/03 513041871 Check 2469, Amount $23 990.00 Date Presented 4/16/2005 VERIFICATION We, MATTHEW M. NICASTRO and JENNIE M. NICASTRO, verify that the statements made in the foregoing Complaint are true and correct. We understand that false statements herein are made subject to the penalties of Title 18 Pa. C.S. Sectio~, 904 relating to / unsworn falsification to authorities. MATTb}EW M. NICASTRO Date: JENNIE M. NICASTRO MATTHEW M. NICASTRO and JENNIE M. NICASTRO Plaintiffs NATIONWIDE CYBER SYSTEMS, INC. Defendant 1N COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 04-3713 CIVIL ACTION - LAW JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE To the best of my knowledge, information and belief, I hereby certify that a true and correct copy of the Complaint filed in the above-captioned matter was served on the Defendant, Nationwide Cyber Systems, Inc., at 6100 Hollywood Boulevard, Hollywood, FL 33024-7900, on August 13, 2004 by certified mail, return receipt requested in accordance with Pennsylvania Rule of Civil Procedure 404 as evidenced by the attached copy of the return receipt. Date uire Salzmann, Hughes & Fishman, P.C. 95 Alexander Spring Road, Ste 3 Carlisle, PA 17013 (717) 249-6333 FAX: (717) 249-7334 Attorney for Plaintiffs MATTHEW M. NICASTRO and JENNIE M. NICASTRO Plaintiffs Vo NATIONWIDE CYBER SYSTEMS, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 04-3713 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF JUDGMENT OF DEFAULT TO THE PROTHONOTARY: Please enter iudtment of default in favor of the Plaintiff. MATTHEW M. NICASTRO AND JENNIE M. NICASTRO, and against the Defendant, NATIONWIDE CYBER SYSTEMS, INC., for Defendant's failure to plead to the complaint in this action within the required time. The complaint contains a notice to defend within 20 days from the date of service thereof. Defendant was served with the complaint on or about August 13, 2004, and Defendant's answer was due to be filed on or about September 2, 2004. Attached hereto as Exhibit "A" is a copy of Plaintiff's written Notice of Intention to File a Praecipe for Entry of Default Judgment, which I certify was mailed by regular mail to the Defendant at its last known address on or about October 28, 2004, which is at least ten (10) days prior to the filing of this Praecipe. Please assess damages in the amount of $53,685.00, being the amount demanded in the complaint, including lawful interest from the date of filing, costs and attorney fees. SALZMANN, HUGHES & FISHMAN, P.C. James D. Hughes, Esquire Supreme Court No.58884 Susann B. Morrison, Esquire Supreme Court No. 77041 95 Alexander Spring Road, Ste 3 Carlisle, Pennsylvania 17013 (717) 249-6333 Attorneys for Plaintiff Date: November 9, 2004 MATTHEW M. NICASTRO and JENNIE M. NICASTRO Plaintiffs v. · No. 04-3713 NATIONWIDE CYBER SYSTEMS, INC. Defendant IN COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JURY TRIAL DEMANDED IMPORTANT NOTICE TO: Nationwide Cyber Systems, Inc. DATE OF NOTICE: October28,2004 YOU ARE 1N 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 (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING, AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS 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 HELP. Cumberland County Bar Association Lawyer Referral Service '32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 SALZMANN, HUGHES & FISHMAN, P.C. By: James D. [Ju~he;s. Esquh'e Susann B. Morrison, Esquire Supreme Corox No. 77041 95 Alexander Spring Road, Ste 3 Carlisle, Pennsylvania 17013 (717) 249-6333 Attorneys fbr Plaintiff