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Home My WebLink About04-5224THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES HEARING REQUIRED. GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 PAUL M. SCHOFIELD, ESQUIRE Identification No.: 81894 21 SOUTH 21ST STREET PHILADELPHIA, PA. 19103 215/988-9600 Guard Nut, Inc. 412 Aviation Blvd. Santa Rosa, CA 95403 VS. Servco Products, Inc. 836 E. 140th Street Cleveland, OH 44110 and Commonwealth of Pennsylvania Dept. of Corrections 2520 Lisburn Road Camp Hill, PA 17001 NOTICE COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO.: ON -S'.2.?y Ctv,,C-7a 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 YOUAND A JUDGEMENT 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 32 S. BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES HEARING REQUIRED. GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification. No.: 41360 PAUL M. SCHOFIELD, ESQUIRE Identification No.: 81894 21 SOUTH 21ST STREET PHILADELPHIA, PA 19103 215/988-9600 GUARD NUT, INC. 412 Aviation Blvd. Santa Rosa, CA 95403 VS. Servco Products, Inc. 836 E. 140th Street Cleveland OH 44110 and Commonwealth of Pennsylvania Dept. of Corrections 2520 Lisburn Road Camp Hill PA 17001 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO.: C)q - 5!w'•7 V 0-1,;L- . COMPLAINT IN CIVIL ACTION COUNT ONE GUARD NUT, INC. V. SERVO PRODUCTS, INC. At the special instance and request of the defendant(s), plaintiff sold and delivered to the defendant(s) merchandise and services, on the dates, of the kinds, in the amounts and for the prices set forth in a true and correct copy of plaintiffs books of original entry attached hereto, made part hereof, and marked Exhibit "A". 2. Defendant(s) accepted said merchandise and services without complaint. 3. The prices set forth in Exhibit "A" are the market prices for the said merchandise and services, and are the prices which the defendant(s) agreed to pay therefor. 4. All the credits, if any, to which the defendant(s) is(are) entitled are set forth in Exhibit "A„ 5. Plaintiff has made demand upon the defendant(s) for payment of the amount due, but the defendant(s) has(have) failed and refused and still refuse(s) to pay the same or any part thereof. 6. Defendant utilized the goods accepted from the plaintiff for a construction project in Pennsylvania for the Department of Corrections. COUNT TWO GUARD NUT, INC. V. COMMONWEALTH OF PA, DEPARTMENT OF CORRECTIONS Plaintiff incorporates herein by reference all the allegations contained paragraphs 1 through 6 inclusive, as fully as though each were here set forth at length. 8. Defendant, PA Department of Corrections, accepted the goods delivered by plaintiff to Servo Products, Inc., for the construction of a facility in Pennsylvania. 9. The goods utilized for the construction project by the PA Department of Corrections and delivered by plaintiff were accepted without complaint, yet the defendant has not made payment of same. 10. The defendant, PA Department of Corrections, has been unjustly enriched in the amount of $22,072.62. WHEREFORE, plaintiff claims of the defendant(s) the sum of $22,072.62 together with interest and attorney fees. GORDON & BY; FREDERIC . WE ERG, ESQUIRE PAUL M. S H LD, JR., ESQUIRE Attorney for Plaintiff POMS VERIFICATION FREDERIC I. WEINBERG, ESQUIRE, hereby states that he is the attorney for the Plaintiff(s) in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unswom falsification to authorities. FREDERIC I. WE B RG, ESQUIRE PAUL M. SCHOF LD, JR., ESQUIRE Attorney(s) for Plaintiff 707 528 8085 P.02 JUN-'29-2004 02.05 PM G.N.I. 412 Avlatlm Blvd. sancta Raw. Ca 95,103 13twna:107-825.80831 Fax: 7074266006 I Fwc Ter Howard Cleveland Run 210.240-IVS Fholm No Pant due involves Fftm David A Kaaaaknan Dolan May 3, 2004 Fawner 1 M Charles L Edwards, Plper Rudnick x Unlom O For RwMrr ? Plea" correrrew ? Flaeoe Reply ? Fleaee tioyele Dear Mr. Cleveland, Check t 010]'12 received on accost, 3 May 04, Is not deemed to be in accord and wWactlon of balances pad due. A signifIcant balance 13 In arrears and not in compliance with contract terms agreed to by you at the k time of order. The Stale or Permsylvom cardlrms that &I invokes to you have been paid In fun, ft ask that you pay your dad In full and assure you that we inland to hold Servw Products,lnc responsible for charges and interest on all past due amounts. JUN-29-2004 02:06 PM G.N.I. 707 528 8085 P.04 Guard-Nut, Inc. Customer Ledger 8179 Servco Products 836 E 140th Street Cleveland, (216)2491900 G Beginnin g Date: Terms: 10/01/03 Fax., (216) 249.1925 N30D Credit Limit: fi Date R nding Date: 03/31/04 Limit: 0 S=OCGO=CC==tl= 0 Page: efq -- Poq =OO'=r= 1 - _ ____-_____- Shp Date Descri tio - -'-----'__ p n ----- Amount Balance 11/19/03 105333 14210 - Beginning balance 12/04/03 12/31/03 105345 105351 14210 11/19/03 Invoice 12/04/03 Invoice 6254.14 0.00 6254.14 01/06/04 4091 1 4210 12/31/03 Invoice 7080.00 13334.14 01/14/04 01/26/04 105352 105355 14210 Pay Invice 105333 8605.00 01/14/04 Invoice -6259.19 21939.14 15685.00 19210 01/26/04 Invoice 7043.62 22728.62 6424.00 29152.62 05 /04/04 10712 Total of Invoices: 35406,76 Pay Invice 105345 -7080.00 22072.62 Customer Balance as of: 06/29/04 22072.62 i Sent By: GNI; 707 528 8085; P.O. S0t 1675 Santa HOCa, CA 95402 (707) 528-0083 ServcO Product6 836 H 140th Street Cleveland, OB 44110 May-19-04 11:43AM; Page 2 INVOICE 1/21/04 105355 Corr Ci Kahaney Attn:Davl.d BoDta 301 11or0a Road Frackville, PA 17932 -U4.STOL+FR u.'s yat .'..i; 3E4J:Fgi - a741V `r,A '., '..'? ..":v. "wa?., 144578 8179 DK 14210/14579 Roadway 1/21/04 Net 30 Daya 3650 40324 3/4-10 x 1-3/4 R11 Braskaway Bolt 1.76 6,424.00 6.424.00 6,424.00 Sent By: GNI; 707 528 8085; Q GUARD DUE P.O. eos 1615 Santa AD". CA 95x02 (707) 528-8083 May-19-04 11:43AM; Page 3 INVOICE /14/04 105352 Servco Products CorCS Mahanoy 836 H 140th Street ASTe David Hopta rt tr{ Cleveland, DH 44110 1301;Moraa Road Frackville, PA 17932 iVAA 3179 3,520 40524 314-10 x 1-3/4 RH Bolt 1,438 40526 1/2-13 x 1-1/4 RH Holt packing List 8560 1.76 6,195.20 .59 848.42 7,043.62 7.043.62 Sent 8y: GNI; 707 528 8085; ? GI?,IARD-NUT P.O. Boa 1675 Serne Rose, CA 95402 (707) 529.8003 Servco Products 836 E 140th Street Clevelan4, 0H 44110 V7. 5179 2,315 7,500 14210 Roadway May-19-04 11:43AM; Page 4 INVOICE 8u 1 12/31/03 105351 Corr C1 Mahanoy ATTN; David Ropts 301 Korea Road Frackville, PA 17932 40524 3/4-10 x 1-3/4 RA Dolt 40526 1/2-13 x 1-I/4 RR Dolt Packing List 8596 12-31--03 1.76 .59 Net 30 days 4,180.00 4,413.00 8,605.00 8,605.00 f _1 1 1 C' C.J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW GUARD NUT, INC., Plaintiff, V. : No. 04-5224 SERVCO PRODUCT, INC. AND DEPARTMENT OF CORRECTIONS, Defendants. PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance as counsel on behalf of Defendant, Department of Corrections only in the above-captioned case. Respectfully submitted, Office of General Counsel Tim by . olmes Assistant Counsel Attorney I.D. No. PA87758 Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 717-731-0444 Dated: November 23, 2004 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW GUARD NUT, INC., Plaintiff, V. : No. 04-5224 SERVCO PRODUCT, INC. AND DEPARTMENT OF CORRECTIONS, Defendants. CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the Praecipe for Entry of Appearance in this matter was served upon the person(s) in the manner indicated below. Service by first-class mail addressed as follows: Frederic I. Weinberg, Esquire Paul M. Schofield, Esquire Gordan & Weinberg, P.C. 21 South 21St Street Philadelphia, PA 19103 Servco Products, Inc. 836 E. 140th Street Cleveland, OH 44110 Stacy M. Jams U Clerical Supervisor Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: November 23, 2004 C? CN7 b C .r T? r CD r7 :Tj - -? { j IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW GUARD NUT, INC., Plaintiff, V. No. 04-5224 SERVCO PRODUCT, INC. AND DEPARTMENT OF CORRECTIONS, Defendants. DEPARTMENT OF CORRECTIONS' PRELIMINARY OBJECTIONS Pursuant to Pennsylvania Rules of Civil Procedure, Rule 1028, moving Defendant, Pennsylvania Department of Corrections ("Department") by and through Assistant Counsel Timothy Holmes ("Counsel") hereby preliminarily objects to the Civil Complaint filed by Guard Nut, Inc. ("Guard Nut") and in support of the Preliminary Objections avers as follows: 1. Guard Nut filed a Civil Complaint in the Cumberland County Court of Common Pleas at the above docket number on October 18, 2004. 2. The Complaint was served on the Office of Chief Counsel, Pennsylvania Department of Corrections at 55 Utley Drive, Camp Hill, PA on October 20, 2004. 3. Guard Nut alleges that the sum of $22,072.62 is due and payable from Servco Products, Inc. ("Servco") based upon Guard Nut's books of original entry attached to the Complaint as Exhibit A.' 4. Guard Nut has neither alleged a written contract between the Department and Guard Nut nor attached a copy of any written agreement or contract to the Complaint. 5. Count Two of Guard Nut's Complaint alleges that the Department has been unjustly enriched in the amount of $22,072.62.2 6. Page one of Exhibit A to Guard Nut's Complaint is a fax cover- sheet which states that the State of Pennsylvania (Department) confirms that all invoices to Servco have been paid in full and that Guard Nut intends to hold Servco responsible for charges and interest.3 PRELIMINARY OBJECTION Demurrer 7. The Department respectfully submits that Guard Nut has failed to state a claim in its Complaint against the Department for which relief can be granted. ' See Complaint, ¶¶ 1-6. 2 See Complaint, ¶¶ 7-10. 3 See Exhibit A, page one. 2 8. 62 Pa.C.S.A. § 1702 provides as follows: Sovereign Immunity (a) General Rule. The general assembly under Section 11 of Article 1 of the Constitution of Pennsylvania reaffirms sovereign immunity, and, except: as otherwise provided in this Chapter, no provision of this part shall constitute a waiver of sovereign immunity for the purpose of 1 Pa.C.S. §2310 (relating to sovereign immunity reaffirmed; specific waiver) or otherwise. (b) Exception. The general assembly under Section 11 of Article 1 of the Constitution of Pennsylvania does hereby waive sovereign immunity as a bar to claims against Commonwealth agencies brought in accordance with §1711.1 (relating to protests of solicitations or awards) and 1712.1 (relating to contract controversies) and SubChapter footnote 1 (relating to board of claims) but only to the extent set forth in this Chapter. 9. 62 Pa.C.S.A. § 1712.1 states as follows: Contract Controversies (a) Right to Claim. A contractor may file a claim with the contracting officer in writing for controversies arising from a contract entered into by the Commonwealth. 3 (b) Filing of Claim. A claim shall be filed with the contracting officer within six months of the date it accrues. If a contractor fails to file a claim or files an untimely claim, the contractor is deemed to have waived its right to asserted claim in any form. Untimely filed claims shall be disregarded by the contracting officer. (c) Contents of Claim. A claim shall state all grounds upon which the contractor asserts a controversy exists... . 10. 62 Pa.C.S.A. § 1724 states as follows: Jurisdiction (a) Exclusive Jurisdiction. The board [of claims] shall have exclusive jurisdiction to arbitrate claims arising from all of the following: (1) A contract entered into by a Commonwealth agency in accordance with this part and filed with the board in accordance with §1712.1 (relating to contract controversies). (2) A written agreement executed by a Commonwealth agency and the Office of Attorney General in which the parties expressly agree to utilize the board to arbitrate disputes arising from the agreement. 4 11. To the extent that Guard Nut has failed both to allege a written agreement, and to attach a copy of any written agreement between Guard Nut and the Department, then Guard Nut fails to bring its claim within the Exception to Sovereign Immunity found at 62 Pa. C.S.A. § 1702, such that sovereign immunity acts as an absolute bar to its claims, and Guard Nut has failed to state a claim for which relief can be granted. PRELIMINARY OBJECTION As to From of Complaint 12. To the extent that Guard Nut may allege a written contract, it has failed to attach a copy of the writing to its complaint. PRELIMINARY OBJECTION Jurisdiction 13. To the extent that Guard Nut may allege a written contract, then exclusive jurisdiction would rest with the Board of Claims and not with the Cumberland County Court of Common Pleas. 5 WHEREFORE, the Department respectfully requests that Guard Nut's Complaint filed with the Court of Common Pleas of Cumberland County be DISMISSED for failure to state a claim against the Department for which relief can be granted. Respectfully submitted, Office of General Counsel By: Tim . Holmes Assistant Counsel Attorney I.D. No. PA87758 Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: November 23, 2004 6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW GUARD NUT, INC., Plaintiff, V. No. 04-5224 SERVCO PRODUCT, INC. AND DEPARTMENT OF CORRECTIONS, Defendants. CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the Department of Corrections' Preliminary Objections in this matter was served upon the person(s) in the manner indicated below. Service by first-class mail addressed as follows: Frederic I. Weinberg, Esquire Paul M. Schofield, Esquire Gordan & Weinberg, P.C. 21 South 21 st Street Philadelphia, PA 19103 Servco Products, Inc. 836 E. 140th Street Cleveland, OH 44110 _.eJ? Stacy M. J s Clerical Supervisor Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: November 23, 2004 7 c j y. 67 n co 'C COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GUARD NUT, INC. Plaintiff Vs. No. 04-5224 Civil Term SERVCO PRODUCTS, INC and COMMONWEALTH OF PENNSLYVANIA Defendants CIVIL ACTION ANSWER AND NEW MATTER The Defendant, Servco Products, Inc., by and through their counsel, C. William Shilling, Esq. hereby enter the following Answer and New Matter to Plaintiff's Complaint and aver as follows: COUNT ONE GUARD NUT. INC v SERVCO PRODUCTS. INC. 1. It is specifically denied that the Answering Defendant physically received the items or services described and as set forth in Exhibit "A". Strict proof thereof is demanded at time of trial. 2. It is specifically denied that the Answering Defendant physically accepted any merchandise from the Plaintiff. Strict proof thereof is demanded at time of trial. 3. After reasonable investigation, Answering Defendant is unable to ascertain the truth or accuracy of the avvermets of Paragraph 3 of the Complaint relating to whether or not the prices shown in Exhibit -NI are therarket prices for the products referenced, and, therefore, said averments are denied. 4 The docunts referred to in Paragraph 4 of the Complaint speak for themselves and no answer is required ttr the applicable rules of civil procedure. Lo 5. It is add only that demand has been made on the Answering Defendant for certain amounts that are clt3 to be due. It is unknown whether or not such a demand has been made on the Aby Defendant Co olth of Pennsylvania. Strict proof thereof is demanded at time of trial. b_ It is spay denied that the Answering Defendant utilized any of the goods listed in by Exhibit "A" for a c'tion project. By way of further answer, the Answering Defendant is not in the coustmctiou businetas never held itself out as being said business. Whether or not the Defendant F1am s Commonwealth of ania used any of the products in a construction project is unknown to the ADswe"ug pefend- proof thereof is demanded at time of trial. Va%O-V(lnswering Defendant, Servco Products, Inc., demands that Plaintiff's Complaint be dlsMIrejudice. Irw"Vc COUNT TWO G96B NO 4IONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTION_ )95 mac. 7 -14. Thesdirected to parties other than the Answering Defendant and, therefore, no answeir the applicable Rules of Civil Procedure. W""'FOig Defendant, Servco Products, Inc., demands that Plaintiffs Complai" t be dismi'- rA ? n ?. 1-, , f 4T ?7 C r ?r VERIFICATION I, Howard Cleveland, hereby states that he is the General Manager of Servco Products, Inc., a Co-Defendant in this action, and verifies that the statements made in the attached Answer and New Matter are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 PA.C.S. Section 4904 relating to unworn falsification to authorities. Date: /;L oq &?A oward Cleveland COURT OF COMMON PLEAS OF CUBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GUARD NUT, INC. Plaintiff No. 04-5224 Civil Term Vs. SERVCO PRODUCTS, INC. and COMMONWEALTH OF PENNSYLVANIA Defendants CIVIL ACTION CERTIFICATE OF SERVICE I, C. William Shilling, Esq., hereby certify that service of the foregoing Answer and New Matter was made upon the Plaintiff, Guard Nut, Inc. by mailing, first class, postage prepaid, a true copy to the office of their attorney of record, Frederic L. Weinberg, Esq., Gordon & Weinberg, P.C., 21 South 21s, Street, Philadelphia, PA 19103, on December 3, 2004. LAW OFFICE OF C. WILLIAM SHILLING, PC By: C `William Shillin ID #46995 Attorney for Dpffnidant P.O. Box 227 Liverpool, PA 17045 f"1 R? - 7 T .rte C7.7 7 - 7 0?4 -Tl ? K ? en7 GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 PAUL M. SCHOFIELD, JR., ESQUIRE Identification No.: 81894 21 SOUTH 21ST STREET PHILADELPHIA, PA 19103 215/988-9600 GUARD NUT, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. DOCKET NO.: 2004-5224 Servco Products, Inc. and Commonwealth of Pennsylvania PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT, SERVCO PRODUCTS, INC_ 11-14. Denied. These averments are conclusions of law which require no response under the applicable Rules of Civil Procedure. However, they are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, plaintiff claims of the defendants the sum of $22,072.62 together with interest and attorney fees. GORDON & WEINBERG, P.C. BY: ;?? FREDE ? I. W ERG, ESQUIRE Attorney for Plaintiff, VERIFICATION FREDERIC I. WEINBERG, ESQUIRE, hereby states that he is the attorney for the plaintiff in this action and verifies that the statements made in the foregoing pleadings are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. FREDERIC I. WE ERG SQUIRE CERTIFICATION OF SERVICE I, FREDERIC I. WEINBERG, ESQUIRE, hereby certify that I, on the date below, served a copy of Plaintiff s Reply to New Matter of Defendant, Servco, Inc., via First Class Mail, postage pre-paid, to all other parties or their counsel of record. FREDERIC I. `vVEG ESQUIRE Dated: ZI?OY ev ? d -n ?4•?^A' Q // ? ry C ' ' ? 4 f V ?I i CO ? ^.. i .. «?? ? -rat ? n SHERIFF'S RETURN - REGULAR CASE NO: 2004-05224 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GUARD NUT INC VS SERVCO PRODUCTS INC ET AL ROBERT BITNER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF CORRECTIONS the DEFENDANT , at 1557:00 HOURS, on the 20th day of October , 2004 at 55 UTLEY DRIVE CAMP HILL, PA 17011 KRISTINA LEBO. CLERK II by handing to ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.36 Affidavit .00 Surcharge 10.00 .00 38.36 Sworn and Subscribed to before me this b w, day of A.D. Prothonotary So Answers: r R. Thomas Kline 10/21/2004 GORDON & WEINBERG Deputy Sheriff t a GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 PAUL M. SCHOFIELD, JR., ESQUIRE Identification No.: 81894 21 SOUTH 21ST STREET PHILADELPHIA, PA 19103 215/988-9600 GUARD NUT, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. DOCKET NO. : 2004-5224 Servco Products, Inc. and Commonwealth of Pennsylvania PLAINTIFF'S MOTION TO ENFORCE SETTLEMENT AGREEMENT AND ENTER JUDGMENT AGAINST DEFENDANT SERVCO PRODUCTS, INC. Plaintiff, by and through its attorney, Gordon and Weinberg, P.C., hereby files this instant motion to enforce a settlement agreement and enter judgment in the amount of $29,749.06 less credits of $9,850.00 for a total of $19,899.06. 1. -On April 3, 2005 Plaintiff and Defendant Servco Products, Inc. entered into a settlement agreement of this instant litigation. A true and correct copy of the settlement agreement is attached and labeled exhibit A. 2. The settlement agreement called for a consent order for judgment to be filed and entered of record in the event the settlement terms were breached. A true and correct copy of the consent order for judgment is attached and labeled Exhibit B. 3. Defendant has failed to pay according to the settlement terms. An executed copy of Plaintiff s affidavit is attached and labeled Exhibit C. 4. Plaintiff motions the court to enter judgment for amount of $29,749.06 less credits of $9,850.00 for a total of $19,899.06. Gordon and Weinberg, P.C. Date`" By: a . S ield, Jr., Esquire Exhibit A Piaui Schofield 39.PDF _ .,_. Pagel Rpr 03 05 08:45p p-2 'Guard Nut, Inc. VS Servco Products, Inc. NO. 04-5224 AN File No_ CLE200-006 SETTLEMENT AGREI;MENT Guard Nut, Inc., Plaintiff; will accept from Servco Products, Inc., Defendant, on the above- entitled case 511,000.00 and a signed Consent Order for Judgment, as full and complete settlement, to be funded as follows: (10) Total Payments: (1) Initial payment of $650.00, and (9) subsequent payments of $1,150.00 each initial payment due by April 30, 2005, subsequent payments due in 30-day intervals thereafter. Consent Order For Judgment will be held in escrow m semn the pufoumance of this settlement agreement as outlined above. All guarantors, personal or otherwise, will be released ftm further liability upon final agreed payment as outlined herein. Settlement payments shall be made payable to tine Plaintiff and delivered to Plaintiff's attorney as follows: Paul K Schofield, Jr.,Esquire Gordon & Weinberg, PC 21 South 21st SL Philadelphia, ?A 19103 If fuading payments are not made, Judgment will be entered against Served Product, Inc. and the entire balance of the Judgment amount of $29,749.06, less any credits for payments made, will became due and payable immediately. When the settlement amount is timely funded as agreed, Plaintiff will execute a Release for the full and entire amount of the claim including all attorneys' fees, court costs and interest due. Agreed and executed this 914 day of 1,01 2005. BY: As/l Paul M. Schof jeId. Jr., Esquire BY: Paul M. Schofield, Jr., Esquire W ' ' Schill' Attorney for Plaintiff Attorney for APR-e3-2005 20:03 89i P.02 Exhibit B It Paul Schofield 39.PDF Rpr 03 05 08:45p p.4 GORDON & WEINBERG, P.C. By. FREDERIC 1. WEINBERG, ESQUIRE Identification No: 41360 By. PAUL M. SCHOFIELD, JR., ESQUIRE Identification No.: 81894 21 SOUTH 21ST STREET PHILADELPHIA, PA 19103 2151988-9600 Guard Nut, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. DOCKET NO.: 04.5224 Servoo Products, Inc. CONSENT ORDER FOR JUDGMENT THIS MATTER having been open to the Court by Frederic I. Weinberg, Esquire, and. Pant M. Schofield, Jr., Esquire attorneys for the PlaintM and William Schilling, Esquire, attorney for the Defendant, and it further appearing that there has been a default on the teuns of a Stipulation of Settlement previously negotiated between the parties to settle the dispute, and for good cause shown and no cause shown to the contrary. IT IS on this day of HEREBY ORDERED that Judgment be given and that same is hereby entered against the Defendants in the sum of $29,749.06 which is aprincipal balance of S23,79925 plus an attorney fee of $5,949.81 less any credit for payments made on behalf of the Defendant. WE HEREBY CONSENT TO TBE ORDER ORDER Had Pout M. schofteid. Jr.. & quire Paul M. Schofield, Jr., Esquire William Schilling, D a t e : 03/31/05 D a t e : l o a l 1. 2 APR-03-2805 20:04 89s: P.04 Exhibit C GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 PAUL M. SCHOFIELD, JR., ESQUIRE Identification No.: 81894 21 SOUTH 21ST STREET PHILADELPHIA, PA 19103 215/988-9600 GUARD NUT, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. DOCKET NO. : 2004-5224 Servco Products, Inc. . and Commonwealth of Pennsylvania AFFIDAVIT OF DAVID KESSLEMAN: STATE OF G r r? a? ) } SS. COUNTY OF Sfl vh ) BEFORE ME, the undersigned authority, on this day personally appeared David Kessleman who, being by me duly sworn, states on oath: I am the president of Guard Nut Inc. I certify and affirm that the Defendant has failed to pay as it agreed in the Settlement Agreement attached to this instant Motion as Exhibit A. I also certify that I have attempted in good faith to persuade the the Agreement. I swear and affirm that amount Address: to comply with the terms of G? Dated: Au-, oJ, 2a 1 2 a Q4V Sworn to and Subscribed Before me this Day of ?.v s 1 , 2406 N ARY P LIC JENNIFER SIBLEY U COMM. #1507785 r NOTARY PUBUC - CAUPORNIA Q SONOMA COUNTY A WMy Comm. Expires Sept. 9, 2008 CERTIFICATION OF SERVICE I, PAUL M. SCHOFIELD, JR., ESQUIRE, hereby certify that I, on the date below, served a copy of Plaintiff's Motion to Enforce Settlement Agreement and Enter Judgment Against Defendant Servco Products, Inc., via First Class Mail, postage pre-paid, to all other parties or their counsel of record. FIELD, JR., ESQUIRE Dated: December 4, 2006 ril ' _ e? TTS Fn 77 ? / { ?f GUARD NUT, INC. IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. SERVCO PRODUCTS, INC. and the COMMONWEALTH OF PENNSYLVANIA DEFENDANTS NO. 04-5224 CIVIL ORDER OF COURT AND NOW, this 11th day of December, 2006, upon consideration of the Plaintiff's Motion to Enforce Settlement Agreement and Enter Judgment Against Defendants, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Defendants to show cause why the relief requested should not be granted; 2. The Defendants will file an answer on or before January 2, 2007; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Plaintiff shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Defendants file an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, an evidentiary hearing will then be scheduled. The Prothonotary is directed to forward said Answer to this Court. By the Court, -N,l L4V M. L. Ebert, Jr., J. P2111 M. Schofield, Jr., Esquire Attorney for Plaintiff ?C',!Nilliam Shilling, Esquire J Attorney for Servco Products, Inc. ?"mothy A. Holmes, Esquire Attorney for the Commonwealth bas GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 PAUL M. SCHOFIELD, JR., ESQUIRE Identification No.: 81894 21 SOUTH 21ST STREET PHILADELPHIA, PA 19103 215/988-9600 GUARD NUT, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. DOCKET NO. : 2004-5224 Servco Products, Inc. and Commonwealth of Pennsylvania MOTION TO MAKE RULE ABSOLUTE Plaintiff, by and through its counsel, Paul M. Schofield, Jr., Esquire, hereby requests a rule absolute. In support thereof, Plaintiff offers the following: 1. On December 11, 2006, this Honorable Court issued a rule upon Defendant Servco Products Inc. to show cause why it should not Grant Plaintiff's Dcember 6, 2006 Motion to enter judgment on Stipulation. 2. Defendant's were ordered to file an answer to Plaintiff's motion by January 2, 2007. 3. Defendant has failed to file the answer as Ordered. 4. Plaintiff respectfully requests this Court make the rule absolute and Grant Plaintiff's Motion of December 6, 2006. 5. Plaintiff served Defendant Servco Products Inc. with the Motion, rule, and proposed ordered in accordance with Rule 440 of the Pennsylvania Rules of Civil Procedure by first class mail on December 6, 2006. Respectfully Submitted, Dater- 1,-71 By: ul M. Schofield, Jr., Esquire GUARD NUT, INC. : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. SERVCO PRODUCTS, INC. and the COMMONWEALTH OF PENNSYLVANIA DEFENDANTS NO. 04-5224 CIVIL ORDER QF COURT AND NOW, this 11 th day of December, 2006, upon consideration of the Plaintiffs Motion to Enforce Settlement Agreement and Enter Judgment Against Defendants, IT IS HEREBY ORDERED AND DIRECTED that 1. A Rule is Issued upon the Defendants to show cause why the relief requested should not be granted; 2. The Defendants will file an answer on or before January 2, 2007; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Plaintiff shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Defendants file an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, an evidentiary hearing will then be scheduled. The Prothonotary is directed to forward said Answer to this Court By the Court, `\ M. L. Ebert, Jr., J. Paul M. Schofield, Jr., Esquire Attorney for Plaintiff C. William Shilling, Esquire Attorney for Servco Products, Inc. Timothy A. Holmes, Esquire Attorney for the Commonwealth bas I GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 PAUL M. SCHOFIELD, JR., ESQUIRE Identification No.: 81894 21 SOUTH 21ST STREET PHILADELPHIA, PA 19103 215/988-9600 GUARD NUT, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. DOCKET NO. : 2004-5224 Servco Products, Inc. and Commonwealth of Pennsylvania CERTIFICATE OF SERVICE I certify that I have served all parties pro se and attorneys of record according to the applicable rules of civil procedure. Weinberg, PC Date: B aul . Sch , Jr., Esquire i-?. i''J 4..-.? C . _- ? t'7 ? ? -?°? C.J .-w-? ..?... ?u _ _ :.1 .. f J ='? ? C,_i "?` > JUN 212007 Guard Nut, Inc. VS. Servco Products, Inc. and Commonwealth of Pennsylvania COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO.: 04-5224 ORDER th .{ AND NOW, this -L ? Day of J y'h L. , 2007, upon consideration of Plaintiff"s Motion to Enforce Settlement Agreement and Motion to make Rule absolute, and any response thereto, it is hereby ORDERED AND DECREED that the Motions are GRANTED and Judgment is entered upon Defendant Servco Products, Inc., in the amount of Nineteen Thousand Eight Hundred Ninety Nine and 061100 ($19,899.06) Dollars. Interest is to run a 6% from December 04, 2006, the date of Plaintiff's Motion, until the total amount is paid in full. J. 'nl r? VNVlA-Mi N' d 90 :Zi tad SZ Nnr LOOZ AdViQNOHiCldd 3NL d0