HomeMy WebLinkAbout13-3222 Supreme Co ;o Pennsylvania
Cour D"Co�mmo , leas For Prothonotary Use Only: J
CWll Cover h S h 'et f!'
����° Docket No: / S' � °1 t
Cu • e= nd County
The information collected on this is used solely for court administration purposes. This form does not
supplement or replace the and service ofpleodings or other papers as required by law or rules of court.
Commencement of Action:
S E' Complaint .J Writ of Summons - Petition
Transfer from Another Jurisdiction Declaration of Taking
i E
Lead Plaintiff's Name: Lead Defendant's Name:
I C James P. Pigott, Jr., t/a The Pigott Agency ABC Manufacturing, Inc. t/a Malta Windows & Doors
'T
Dollar Amount Requested: l! within arbitration limits
I Are money damages requested? ED Yes - No (check one) x� outside arbitration limits
O
N Is this a Class Action Suit? Yes G1 No Is this an MDJAppeal? - Yes El No
A Name of Plaintiff /Appellant's Attorney: James R. Clippinger, Esquire, Caldwell & Kearns
Check here if you have no attorney (are a Self - Represented (Pro Se] Litigant)
Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your
` PRIMARY CASE. If you are making more than one type of claim, check the one that
you consider most important.
TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS
- Intentional El Buyer Plaintiff Administrative Agencies
0 Malicious Prosecution - Debt Collection: Credit Card -9 Board of Assessment
Motor Vehicle Debt Collection: Other 17 Board of Elections
I-1 Nuisance Delinquent Sales Commissip 13 Dept. of Transportation
0 Premises Liability 1] Statutory Appeal: Other
S ❑ Product Liability (does not include
mass tort) Q Employment Dispute:
E f- Slander/Libel /Defamation Discrimination
C I Other: - Employment Dispute: Other Zoning Board
� Other:
,
I - Other:
O MASS TORT
Asbestos
N ❑ Tobacco
Toxic Tort - DES
E
E Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS
l Toxic Waste IF- Ejectment 0 Common Law /Statutory Arbitration
B Other: -i Eminent Domain /Condemnation Declaratory Judgment
E l Ground Rent Mandamus
Landlord /Tenant Dispute - Non - Domestic Relations
Mortgage Foreclosure: Residential Restraining Order
PROFESSIONAL LIABLITY Mortgage Foreclosure: Commercial ( Quo Warranto
Dental J Partition 0 Replevin
1 [I Legal 0 Quiet Title - Other:
Medical =} Other:
C7 Other Professional:
L_
Updated 1/1/2011
F lLED - UFF1C
0 F i t ,o F r;0Ti10N0 IA
r
James R. Clippinger, Esquire ". 13 111,] _ S 9111 I & 57
Attorney I.D. No. 07159 CUMBERLAND COUNTY
CALDWELL & KEARNS F Eti'fdS f LVA N I A
3631 North Front Street
Harrisburg, PA 17110
jclippinger@cklegal.net
Telephone: (717) 232 -7661
Facsimile: (717) 232 -2766
JAMES P. PIGOTT, JR. IN THE COURT OF COMMON PLEAS
T/A THE PIGOTT AGENCY CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. No.
ABC MANUFACTURING, INC. CIVIL ACTION - LAW
T/A MALTA WINDOWS &
DOORS
Defendant 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 S. Bedford Street
Carlisle, PA 17013
Phone: (717) 249 -3166 �1�2
or (800) 990 -9108 •J
James R. Clippinger, Esquire
Attorney I.D. No. 07159
CALDWELL & KEARNS
3631 North Front Street
Harrisburg, PA 17110
jclippinger@cklegal.net
Telephone: (717) 232 - 7661 /Facsimile: (717) 232 -2766
JAMES P. PIGOTT, JR. IN THE COURT OF COMMON PLEAS
T/A THE PIGOTT AGENCY CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. No.
ABC MANUFACTURING, INC. CIVIL ACTION - LAW
T/A MALTA WINDOWS &
DOORS
Defendant JURY TRIAL DEMANDED
AVISO
USTED HA SIDO DEMANDADO /A EN CORTE. Si usted desea defenderse de las
demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de
los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando
personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por
escrito sus defensas de, y objeciones a, las demandas presentadas aqui en contra suya. Se le
advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede
proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la
Corte sin mds aviso adicional. Usted puede perder dinero o propiedad u otros derechos
importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO
INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA
SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA
DE COMO CONSEGUIR UN ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES
POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE
AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A
PERSONAS QUE CUALIFICAN.
CUMBERLAND COUNTY BAR ASSOCIATION
32 S. Bedford Street
Carlisle, PA 17013
Phone: (717) 249 -3166
or (800) 990 -9108
James R. Clippinger, Esquire
Attorney I.D. No. 07159
CALDWELL & KEARNS
3631 North Front Street
Harrisburg, PA 17110
jclippinger@cklegal.net
Telephone: (717) 232 -7661
Facsimile: (717) 232 -2766
JAMES P. PIGOTT, JR. IN THE COURT OF COMMON PLEAS
T/A THE PIGOTT AGENCY CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. No.
ABC MANUFACTURING, INC. CIVIL ACTION - LAW
T/A MALTA WINDOWS &
DOORS
Defendant
COMPLAINT
And now comes the Plaintiff, James P. Pigott, Jr., t/a The Pigott Agency ( "Pigott") by its
attorney, James R. Clippinger, Esquire, of Caldwell & Kearns and files the within Complaint
against Defendant ABC Manufacturing, Inc. t/a Malta Windows & Doors ( "Malta "), and in
support thereof avers the following:
1. Plaintiff Pigott is an adult individual who resides and maintains his principal place
of business at 522 Appalachian Avenue, Upper Allen Township, Mechanicsburg, Cumberland
County, Pennsylvania 17055.
2. Defendant Malta is a corporation organized and existing under the laws of the
State of Ohio under and using the registered name of Malta Windows & Doors and which
maintains a principal place of business at 210 Thirteenth Street, Malta, Ohio 43758.
3. Jurisdiction is vested in this court pursuant to 42 Pa.C.S. §931. Venue is
appropriate in Cumberland County as substantial contacts and transactions between Malta and
Pigott and also Pigott and various customers who are then contracted with Malta, which are the
subject matter of this litigation, took part in whole or in part in Cumberland County,
Pennsylvania.
4. Defendant Malta is in the business of manufacture, sale, and distribution of
commercial and residential windows and doors to include distribution within the Commonwealth
of Pennsylvania.
5. Plaintiff Pigott is an experienced sales representative in the promotion and sales of
commercial and residential windows and doors.
6. On or about April 1, 2010, Pigott and Malta did enter into a written agreement in
which Malta appointed Pigott as a sales representative for the sale of its product in the
northeastern United States territory as more specifically set forth in said written sales agreement
(the "Sales Agreement "), a true and correct copy of which is attached hereto, marked Exhibit "A"
and made a part hereof by reference thereto.
7. The said Sales Agreement specifically provided that Malta would pay Pigott a
sales commission of five (5 %) percent of net sales paid after deducting returns and allowances
which would be paid on the 15 of each month for materials shipped during the preceding month.
8. Pigott did thereafter perform sales services for Malta successfully selling various
products for Malta, although Malta failed to pay all commissions earned by Pigott when due as
per the Sales Agreement.
9. Accordingly, by virtue of said admitted failure by Malta to timely make full
commission payments to Pigott as agreed, the parties entered into a written addendum to the
2
Sales Agreement on or about July 29, 2011, identified as "Addendum ", a true and correct copy of
which is attached hereto as Exhibit "B" and made a part hereof by reference thereto.
10. The said Addendum did modify the basis of compensation to Pigott to a
consultation salary plus commission commencing August 15, 2011, as more particularly set forth
in the Addendum.
11. In addition, by virtue of said admitted failure by Malta, on or shortly before
execution of the Addendum, the parties did enter into a memorandum with regard to the
delinquent commissions owed by Malta to Pigott of $42,000.00 (the "Memorandum "). A true
and correct copy of said Memorandum, executed by the parties on or about July 26, 2011, is
attached hereto, marked Exhibit "C" and made a part hereof by reference thereto.
12. In furtherance of the obligations of Malta in the said Memorandum as referenced
in the previous paragraph, Malta did deliver to Pigott three (3) shares of stock in ABC
Manufacturing, Inc., said shares dated July 7, 2011. A true and correct copy of said share
certificate is attached hereto, marked Exhibit "D" and made a part hereof by reference thereto.
13. The Memorandum thereafter provided for delinquent commissions payments to be
made by consecutive monthly payments as provided therein commencing August 15, 2011.
14. Pigott thereafter pursuant to and in consideration of the promises contained in the
Sales Agreement, the Addendum, and the Memorandum did continue to perform various and
valuable sales services for Malta.
15. The obligations of Malta as set forth in the Sales Agreement as modified by the
Addendum and the Memorandum were breached by Malta in the following manner to wit:
3
a. No payments on the delinquent commissions were made beginning in
March 2012. The balance owing at that time being four (4) monthly payments of
$1,750.00 each and a final payment of $1,812.50 for a total of $8,812.50.
b. The minimum salary as provided in the Addendum to the Sales Agreement
was not paid after April 13, 2012 with the balance owing through August 14, 2012, being
$7,692.30.
C. Failure to pay sales commissions on products sold by Pigott on behalf of
Malta in accord with the Sales Agreement and the Addendum as best estimated by Pigott
as Malta has failed, despite repeated requests to submit any information concerning sales
as required by Agreement:
i. Alfonso Ciampa Window Company $62,000 @ 3% = $1,860
ii. Architectural Building Components $250,000 @ 1.5% and
$150,000 @ 3% = $8,250
iii. C &R Supply Div of Truax Hovey $82,000 @ 3% = $2,460
iv. Dash Lumber $200,000 @ 1/5% and $100,000 @ 3% = $6,000
V. KB Millwork (Ken Wright — Noonan Builders) - $250,000 @ 3% _
$7,500
vi. Kirkwood Window Corp $445,183.95 - '/4 @ 0% $6,677.74, '/2 at
3% $3,338.87,'/4 @ 3% = $10,016.61
vii. Lyon & Billard Lumber $10,000 @ 3% = $300
viii. LightStyles Ltd. $235,000 @ 3% = $7,050
ix. Lorenzi Lumber $250,000 @ 3% = $7,500
X. Midland Sales - $500,000 in purchases @ 3% = $15,000
4
xi. WSI, Inc. (Westmoreland County Housing Authority) $500,000 @
3% _ $15,000
xii. WSI, Inc. (Washington DC Casement) $20,000 @ 3% - $600
xiii. WSI, Inc. (Fort McNair Military Base) $280,000 @ 3% _ $6,000
xiv. WSI, Inc. sold by Malta Direct Fort McNair Military Base
$350,000 @ 3% _ $10,500
xv. Vermont or New Hampshire Hospital $125,000 @ 3% _ $3,750
TOTAL: $101,786.61
d. Malta has failed or refused to redeem the three (3) shares of Malta stock at
the agreed price of $7,500 share or a total of $22,500.
16. Pigott provided Malta notice of default of all of said matters hereinbefore referred
by written notice of May 18, 2012, at which time Pigott summarized the amounts due as follows:
a. delinquent commissions $8,812.50;
b. repurchase of three (3) shares of Malta stock $22,500.00;
C. balance of minimum salary from April 13, 2012 through August 12, 2013,
and unpaid commissions $7,692.30.
d. Unpaid commissions as per paragraph 15c - $101,786.61.
e. The total amount of delinquent commissions, unpaid salary, stock
repurchase sum and unpaid commission totals $140,791.41.
5
COUNT
BREACH OF CONTRACT
17. Pigott incorporates by reference and averments contained in paragraphs 1 through
14 each as if fully set forth.
18. A contract existed between Pigott and Malta for payment of said commissions of
delinquent commissions and salary as specifically to include the Sales Agreement, the
Addendum thereto, and the Memorandum.
19. These agreements between the parties created legal obligation on Malta's part to
pay Pigott for the services provided pursuant to their terms.
20. Pigott properly and responsibly performed his obligations under any and all of the
agreements between the parties.
21. Malta, despite repeated demands of payment, has refused or failed to pay Pigott
the amounts due which refusal for failure constitutes breach of agreements between the parties.
22. As a direct and proximate result of Malta's breaches of contract as set forth above,
Pigott has suffered damages in the amount of $1 40,791.41.
WHEREFORE, Pigott demands judgment be entered in favor and against Malta in the
amount of $140,791.41 plus interest, costs, and any other remedy this Honorable Court may
deem just and proper.
6
COUNT II
QUANTUM MERUIT
23. Pigott incorporates by reference the averments contained in paragraphs 1 through
16 as though each were fully set forth and does alternately aver that he is entitled to damages on
i
a theory of quantum meruit.
24. Pigott performed all the sales work at or on Malta's behalf and in a good and
professional manner.
25. Malta accepted the sales contracts that Pigott obtained on Malta's behalf and
derived benefit therefore.
26. Pigott had an expectation of compensation in exchange for the services
performed.
27. Pigott is entitled to the reasonable value of work performed on Malta's behalf.
28. The reasonable value of the work performed by Pigott on Malta's behalf is
$140,791.41
WHEREFORE, Pigott demands judgment be entered in favor and against Malta in the
amount of $140,791.41 plus interest, costs, and any other remedy this Honorable Court may
deem just and proper.
COUNT III
UNJUST ENRICHMENT
29. Pigott incorporates by reference the averments contained in paragraphs 1 through
16 as though each were fully set forth and does alternately aver that he is entitled to damages on
a theory of unjust enrichment.
7
30. Pigott expected remuneration from Malta at the time Pigott performed its work at
Malta's direction and conferred various benefits on Malta.
31. Malta received various benefits in the form of the sales contracts performed by
Pigott on Malta's behalf.
32. The retaining of such benefits by Malta without payment for such benefits would
create an unjust result.
33. Failure of Malta to compensate Pigott for work performed enriched Malta beyond
its contractual rights, to the detriment of Pigott.
34. As a direct and proximate result of the unjust enrichment of Malta, as set forth
above, Pigott has suffered damages in the amount of $140,791.41.
WHEREFORE, Pigott demands judgment be entered in favor and against Malta in the
amount of $ 140,791.41 plus interest, costs, and any other remedy this Honorable Court may
deem just and proper.
COUNT IV
PROMISSORY ESTOPPEL
35. Pigott incorporates by reference the averments contained in paragraphs 1 through
16 as though each were fully set forth and does alternately aver.
36. Pigott reasonably relied to his detriment on representations by Malta that all
agreements would be performed pursuant to the representations and promises therein specifically
contained, and that he would be fully compensated for his services to Malta.
8
37. Pigott reasonably relied to his detriment on Malta's representations outside the
contract that Pigott would be paid for his performance for consulting services and sales
commissions, delinquent and current.
38. By reason of Malta's failure to perform in accordance with its representations to
Pigott and failure to compensate Pigott for his services, Piggot has suffered damages in the
amount of $140,791.41.
WHEREFORE, Pigott demands judgment be entered in favor and against Malta in the
amount of $140,791.41 plus interest, costs, and any other remedy this Honorable Court may
deem just and proper.
Respectfully submitted,
Date: - ' gk 5 , 2013
James . Clippin r, Esquire
Attorn I.D. No. 7159
CALD L & KEA Ns
3631 North Front Street
Harrisburg, PA 17110
717 - 232 -7661
Attorney for Plaintiff, James P. Pigott, Jr.,
t/a The Pigott Agency
9
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April 1, 2010
SALES AGREEMENT
Memorandum of Ab - eement between Malta Windows & Doors, 244:13'` Street, Malta, Ohio,
43758, and The Pigott Agency, 52.2 Appalachian Avenue,.Mechanicsburg, PA 17055.
Malta Windows & Doors hereby appoints you as our Sales Representative for the sale of our
products in.the.following territory: North - Eastern United States.including Northern Virginia (N.
of l -64, Maryland, NeNv York, New. ersey, Pennsylvania Connecticut.. Massachusetts, and
Rhode island. See territory map- Attachment `A'.
It is understood and agreed that you will regularly and diligently solicit business in the territory
i_ i__�r _r>w_ ��• O_ T____ V..__ _.: 1 ,,..a.,....... -1- A.. -1 4 A.-fu a. « ., -
On C)enatr Or 1V1alLa. W IT1dV4VS cx.u VVrJ. x uu w1il pf:11 1111 ,u�u tslCiuesawe alias iauuscs SCPV1CeS as
from time to time you may be called upon to perform in connection with the servicing of
accounts.. .
In consideration of your services, Malta Windows & Doors agrees to pay you a sales
commission of 5% on net sales. Commissions are paid on net sales after deducting returns and
allowanees..Commission is paid on the 15 of each month for the material shipped during the
preceding month:
It is understood and agreed that should goods be returned to the factory, or if the customer fails
to pay for the goods shipped, or if it becomes necessary to place the account of the customer
with a collection agoncy or attornay for collcation, Malta Windows & Doors rcocrvc5 tho right to
deduct the commission on all such transactions. No commissions will be paid on any order
cancelled for any reason, or any order not actually shipped to the customer: Malta Windows
Doors reserves the right to reject or accept any order.
j Malta Windows & Doors agrees to reimburse The Pigott Agency fifty percent (50 %) of the cost
of one round trip coach airfare for attendance at required Malta.meetings.
The Pigott Agency may not represent any product lines that would compete with products
manufactured by, or offered through ABC Manufacturing.
The term of this Agreement shall commence on the date this agreement is accepted by Malta
Windows and Doors and shall continue until terminated by either party. In any event, this
agreement can be terminated at any time, by either parry upon a 30 day prior written notice to the
other by registered or certified mail of intention not to continue this Agreement.
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' Pigott Agency Territory Map _ June 3, 2006
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7 -20 -11
ADDENDUM TO SALES AGREEMENT
This Addendum to Sales Agreement is entered by and between Malta Windows & Doors
(hereinafter "Malta ") and The Pigott Agency (hereinafter "Pigott").
WHEREAS, Malta and Pigott did enter into a certain Sales Agreement/Memorandum of
Agreement ( "Agreement") on or about April 1, 2010 with regard to Pigott's sales responsibilities
to Malta and Malta's obligations to Pigott; and
WHEREAS, the parties do wish to modify said Sales Agreement by this Addendum but
only hereinafter specifically set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is acknowledged; intending to be legally bound hereby, Malta and Pigott agree to amend
the Sales Agreement as follows:
1. Exclusivity During the term of the Sales Agreement, Malta shall not engage or
authorize any other firm, person or corporation to promote or solicit Malta's products for
delivery within the Territory or directly market Malta's products to others within the Territory,
and, in turn, Pigott shall not directly or indirectly in any way market or assist . any others to
market any products competitive with those manufactured by us. It is understood however that
there are certain instances and situations that arise from time to time that an owner, the owner's
t
architect, engineer or window entity such as professional glazing companies, window and door
commercial dealers or other fenestration professionals, specify a specific product(s) or product
line from another manufacturer or source. In such event and if upon reasonable efforts, such a
situation exists that the Malta product line will not be considered, Pigott will notify Malta in
writing of such situation but Pigott may then proceed to provide professional services in market
and other product line other than that manufactured and distributed by Malta.
2. Extension of Territory The Territory applicable to the exclusivity of the Sales
Agreement as amended by this Addendum, shall be modified to now include the area north of
I -64 in Virginia to include Maryland, Delaware, Pennsylvania, New Jersey, New York, District
of Columbia, Connecticut, Rhode Island and Massachusetts and the addition of New Hampshire,
Vermont and Maine. y- 10 .\J(?.
3. Establishment of Sales Representativ In view of the size of the existing and
modified. Territory the parties have agreed to commence the establishment of a reasonable sales
force comprised of six territorial sales.representatives which will be paid directly by Malta
although supervised and managed by Pigott. Pigott and Malta shall. work together to identify,
establish, hire and train such sales representatives. The basic compensation to territory
representatives shall be a salary of Twenty -Five Thousand ($25,000.00) Dollars per year plus a
two (2 %) percent commission on net sales plus reimbursement of reasonable expenses as agreed
to in writing by Malta, all to be paid directly by Malta.
4. Consulting with Malta/Sales Representat Pigott agrees to furthermore act as
a consultant and supervisor of the sales representatives. Pigott will :regularly and timely assist
and consult with said representatives and Malta to assure their satisfactory performance for
Malta. inconsideration. of the. consulting work. to :be performed by Pigott, Pigott will be paid. an
annual fee of Forty Thousand ($40,000.00) Dollars payable in twelve (12) consecutive equal .
monthly: payments, the first payment due August 15, 2011.
5. Information and Assistance. During the term of your retainer:
(a) Malta shall endeavour to continue to familiarize Pigott with Malta's
product lines and related services and keep Pigott informed on a current
2
basis in that regard, and provide to Pigott all related information which,
reasonably, is necessary for Pigott to market Malta's products within the
Territory; and.
(b) Pigott shall, diligently promote and market our products within the
Territory and keep Malta informed on a reasonably current basis of your
efforts in. that regard.
6. Protocol for Orders
(a) You are not authorized to accept orders for our products or to make any
commitments on our behalf.
(b) All orders generated by Pigott and any sales:representative for our
products. shall be submitted to Malta at our offices in Malta, Ohio or
elsewhere as we from time to time advise .you and shall be in forms
acceptable to us. Malta shall deal promptly with each such order and keep
Pigott apprised in that regard. We will establish a protocol with you to
keep you informed of orders accepted by us for delivery of products
within the Territory and fulfillment of such orders.
7. Commission/Compensation The commission payable to Pigott as set forth in the
Sales Agreement is deleted in its entirety and replaced with the following commission terms.
Thus, the five (5%) percent commission on net sales as set forth in the Sales Agreement is
replaced with a commission of one and one -half (1.5 %) percent on net sales when sales are made
by aterritorial sales representative and three (3 0 /6) percent if there is a vacancy in:the territory
upon which the sale is made and Pigott is responsible for the sale.
Commissions .shall I be likewise due Pigott and the territorial representative; as applicable,
for any products delivered. by Malta with regard to any tender of proposals which Malta submits
and territorial representatives where Pigott assists with the furtherance and consummation of the
sale.
By the twentieth (20`) day of each calendar month. Malta will forward a statement listing,
for the immediate preceding month, all such payment and the amount of costs and charges
3
compromised with such receipts, organized by customer, order or contractor file number and
Malta will promptly remit the result of amount of commissions owing to Pigott.
8. Term of Agreement
(a) The term of this Agreement shall continue until brought to an end by one
of the parties by written notice to the other party stating to the effect that
the term of this Agreement shall end on the date set forth in such notice
and specifying such date, but such date shall not be earlier than twelve
(12) months following the date of this. Addendum, absent breach and good
cause shown. "The Agreement, as modified by this Addendum, shall
automatically continue for successive annual periods unless terminated
by either party upon issuance of written notice not less than sixty (60)
days prior to the anniversary date "
(b) If either party shall be adjudicated a bankrupt, cease carrying. on. business,
cease generally to pay its obligations as they fall due for payment, be in
breach of this Agreement in a material way under circumstances where.
such breach has continued for ten (10) consecutive days following the
receipt or deemed receipt of a notice from the other party complaining
with reasonable specificity of such breach and stating its intention to bring
the term . of this Agreement to an end if such breach continues for ten
consecutive days, or in the case of The Pigott Agency James P. Pigott, Jr.
shall die or become disabled to an extent such that he is unable to attend to
the performance of this Agreement for a period of twenty (20) consecutive
days, the other party may by written notice to that effect bring the term. of
this Agreement to an end.
(c) The ending of the term of this Agreement shall not relieve Malta from its
obligations under this Agreement as regards orders for products which
have been accepted by Malta prior to the time that the term of this
Agreement ends, nor relieve either party from its obligations to the other
in consequence of the breach of any provision of this Agreement.
g. Indemnification. Pigott agrees to defend, identify and hold harmless Malta
against any and all loss, liability, claim, and damages (including incidental and consequential
damages), judgments, fines, costs or expenses (including costs of defense and reasonable
attorneys fees and costs), arising out of any claims, complaints or suits, whatever their nature,
4
which may be brought or made against Malta arising from the negligent and intentionally
wrongful. or reckless conduct of Pigott.
Malta aggress to defend, indemnify and hold harmless Pigott against any and all loss,
claim, damage excluding incidental and consequential damages, judgments, fines, costs and
expenses including reasonable attorneys fees arising out of any claims, complaints or suits
whatever the nature which may be brought or made against Pigott arising from negligent,
intentional and reckless actions of Malta and it specifically includes any claims relative to breach
of product warranty or product defect.
10. Independent Contractors Malta and Pigott agree and acknowledge that Pigott is
an independent contractor. None of the provisions of this agreement nor any service. provided by
Pigott shall be construed to create a partnership joint venture, franchise, agency or contract of
employment between Malta and Pigott. Neither Malta nor Pigott shall have any rights or
authority to obligate or bind the other in any manner whatsoever, and nothing herein contained
shall give, or is intended to give, any rights of any kind to any third persons.
11. Assignment This Agreement is personal in nature and none of the parties hereto
shall, without the written consent of the others, assign or transfer this Agreement or any rights or
obligations hereunder, provided that, in the event of the merger, consolidation, transfer or sale of
all or substantially all of the assets of Malta with or to any. other individual or entity, this
Agreement shall, subject to the provisions hereof, be binding.upon and inure to the benefit of
such successor.
12. Authorization and Enforceabilily. Malta represents and warrants that: (i) it is duly
organized, validly existing and in good standing under the law and that it has all requisite power
and authority to enter into this Agreement; (ii) it is duly authorized by all requisite action to
5
execute, deliver an d perform: this Agreement and to consummate the transactions and services
contemplated hereby; and (iii) it has duly executed and delivered this Agreement.
1.3. Entire Agreement This Agreement contains the entire agreement between the
parties with respect to the transactions'and services contemplated and expressly supersedes any
prior written or .oral understandings or agreements betweenthem. No other representations,
inducements, promises or agreements, whether written or oral, between the parties and not
contained in this agreement or incorporated by reference shall be of any force or effect with
regard to the subject matter hereof. No agreement or understanding extending this Agreement or
varying its terms shall. be binding upon either party unless it is a:writing .specifically referring to
this Agreement and signed by the duly authorized representative of the applicable party..
14. Severability In the event that any provision of this Agreement is found to be
illegal and/or unenforceable; that provision shall be severed from the Agreement and the
remainder of the contract shall be enforced :as though such illegal or unenforceable :provision was
not contained therein.
15. Acceptance. If you are in agreement with the foregoing, would you kindly date
and sign at least one copy of this letter in the space provided below and send us the original or e-
mail to us a PDF copy of this letter as so dated and signed by you whereupon this letter shall
constitute the Agreement between us pertaining to the foregoing matters.
MALTA WINDOWS & DOORS
The foregoing is accepted and agreed to this c;I ' day of July, ;2011.
6
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MEMORANDUM: PAYMENT OF DELINOUENT COMMISSIONS —
THE PIGOTT AGENCY BY MALTA WINDOWS & DOORS
The following shall constitute our mutual agreement with regard to payment of
delinquent commissions owed to The Pigott Agency ( "Agent ") by Malta Windows & Doors
( "Malta") as follows:
1. The agreed compromised sum owed by Malta to Agent for commissions earned,
without further deduction or offset whatsoever, is $42000.00 (the "Obligation ").
2. $5,000.00 has been paid to be credited to the $42,000.00 on July 7, 2011.
3. Within thirty (3 0) days Malta shall deliver to Agent three (3) shares of common .
stock in ABC Manufacturing Corporation which the parties agree has a .current value of
'$7;500.00 per share. Malta agrees that upon the expiration of of e-, years from. the date
.of execution of this Memorandum by Malta, if so requested in writing by The Pigott Agency.,
Malta within thirty (3 0) days of receipt of written request shall buy this stock back. at .its then
current value but not less than $7,500.00 per share.
3. The balance of the Obligation, or $14,500.00 shall be paid in consecutive monthly
payments of $1,750.00 each and a final payment in the amount of $2 the first installment
commencing on August 15, 2011. . Any delinquent payments shall bear interest at the
Pennsylvania legal rate and if not paid within thirty (30) days following notice of default, the
entire balance of the Obligation to include the stock repurchase shall be immediately due and
payable.
APPROVED:
MALTA WINDOWS & DOORS
Date , �Xade Bei7rjamin.. President & CEO
THE PIGOTT AGENCY
Date: C / ames Pi Ott, si i5t
I79299
ALL- STATEOLEGAL 800- 222 -0510 ED11 RECYCLED
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VERIFICATION
I, James P. Pigott, Jr., have read the foregoing document and to the extent that it contains
facts supplied by me, they are true and correct to the best of my personal knowledge, information
and belief, however, to the extent that the foregoing document and/or its language is that of
counsel, I have relied upon counsel in making this verification.
I make this Verification subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn
falsification to authorities.
Dated: (D" 'J 3
ames P. i tt,
CERTIFICATE OF SERVICE
AND NOW, thlsc day of J �YAE- , 2013, I hereby certify that I have served
the within document on the following by depositing a copy of same in the United States Mail,
Harrisburg, Pennsylvania, with first -class postage, prepaid, as follows:
Wade Benjamin, President & CEO
Malta Windows & Doors
210 Thirteenth Street
Malta, OH 43758 -0369
CALDWELL & KEARNS
B M
Y a
11083- 001/202716202790
t
JAMES P. PIGOTT, JR. IN THE COURT OF COMMON PLEAS
T/A THE PIGOTT AGENCY CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. No. 13-3222
ABC MANUFACTURING, INC. CIVIL ACTION - LAW
T/A MALTA WINDOWS &
DOORS co
Defendant
AFFIDAVIT OF SERVICE 3> ,
AND NOW,this n day of June 2013, personally appeared before me a Notary Public
in and for said County and State, JAMES R. CLIPPINGER, ESQUIRE, and files this Affidavit
of Service on behalf of Plaintiff, JAMES P. PIGOTT, JR. T/A THE PIGOTT AGENCY, who
does affirm that as attorney of record he served a true, correct and certified copy of the
Complaint upon the Defendant, ABC MANUFACTURING, INC. T/A MALTA WINDOWS &
DOORS in accord with Pa. Rule of Civil Procedure 403 and 404 by depositing same in the U.S.
mail, postage prepaid, certified and restricted delivery on June 11, 2013 and service of process
was completed by execution of the postal service form 3811 on June 13, 2013. The original
which is attached to this Affidavit as Exhibit"A'S.
James R .Cli finger squire
i
Sworn to and subscribed
before me this�day of June, 2013. `v
Notary Publ'
COMMONWEALTH OF PENNSYLVANIA
11083-002/204209 Notarial Seal
Deborah L.Julian,Notary Public
Susquehanna Twp.,Dauphin County
My Commission Expires Oct 20,2014
Member.Pennsvivania Association or Notaries
Exhibit"A"
SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY
■ Complete Items 1,2,and 3.Also complete A. Si n re
Item 4 if Restricted Delivery is desired. X ❑Agent
• Print your name and address on the reverse ❑Addressee
so that we can return the card to you. . C IV by MPted Na C. late of Qelivery
1,-Attach this card to the back of the mailpiece, �Y-(
or on the front if space permits. wtc !*�
D. Is delivery address different from Item 11 ❑Yes
Article Addressed to: If YES,enter delivery address below: ❑N
ABC-Mb-nufacti�ri-n-g-,Yn—c.-
t1a Malta Windows&Doors
Attn: Wade Benjamin,President&CEO
210 Thirteenth Street 3. Service Type
Malta,OH 43758-0369 NCerlifled Mail ❑ 3 Mail
❑Reglelered
❑Insured Mail ❑C.O.D.
4. Restricted Delivery?(Extra Fee) <Iftilift
2. Article Number
(Transfer from service label) 7011 2970 0001 9433 2030
Ps Form 3811,February 2004 Domestic Return Receipt 102595-o2-M-1940
a—j,` p
James R. Clippinger, Esquire
Attorney I.D.No. 07159 NVI -7 PH 2: 02
CALDWELL & KEARNS ' d�,i3ERL AND COUNTY
3631 North Front Street P E NI N S Y UVA N I A
Harrisburg, PA 17110
jclippinger@cklegal.net
Telephone: (717) 232-7661/Facsimile: (717)232-2766
JAMES P. PIGOTT,JR. IN THE COURT OF COMMON PLEAS
T/A THE PIGOTT AGENCY CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. No. 13-3222
ABC MANUFACTURING, INC. CIVIL ACTION - LAW
T/A MALTA WINDOWS &
DOORS
Defendant
PRAECIPE FOR ENTRY OF JUDGMENT
TO THE PROTHONOTARY:
PLEASE enter judgment in favor of James P. Pigott,Jr., t/a The Pigott Agency and
against the Defendant ABC Manufacturing, Inc., t/a Malta Windows & Doors for the failure of
the Defendant to file an answer or other responsive pleading within twenty (20) days after
service of the Complaint and following ten (10)days of issuance of Notice of Default pursuant to
Pa.R.C.P. 237.5. An affidavit of service is filed contemporaneously herewith as Exhibit"A"
The amount of the judgment shall be as stated in the prayer of Plaintiff s complaint or
$140,791.41 plus interest and costs.
CAL WELL & KEARNS
By:
James R.
Attorney . o 79
3631 Nort Front eet
Harrisburg, A 17 0
717-232-7661
Attorney for Plaintiff
Dated: N 0 Vep6r , 2013
O-YkA -a I�.
C" �����
Pat, 401
Exhibit A
James R. Clippinger, Esquire
Attorney I.D. No. 07159
CALDWELL & KEARNS
3631 North Front Street
Harrisburg, PA 17110
jclippinger@cklegal.net
Telephone: (717) 232-7661/Facsimile: (717) 232-2766
JAMES P. PIGOTT, JR. IN THE COURT OF COMMON PLEAS
T/A THE PIGOTT AGENCY CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. No. 13-3222
ABC MANUFACTURING, INC. CIVIL ACTION - LAW
T/A MALTA WINDOWS &
DOORS
Defendant
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF DAUPHIN
AND NOW, this b0i day of qe , 2013, personally appeared before me, a
Notary Public in and for said County and State, JAMES R. CLIPPINGER, ESQUIRE, and files
this Affidavit on behalf of Plaintiff, who does affirm that as attorney of record for Plaintiff,
James P. Pigott, Jr. t/a/The Pigott Agency, he did serve a true and correct copy of a Notice of
Default on Defendant, ABC Manufacturing, Inc., t/a Malta Windows & Doors, by Certified Mail
and U.S. First Class Mail, postage prepaid, with attached Certificate of Mailing at Harrisburg,
Pennsylvania on October 22, 2013, to the Defendant's last known address 210 Thirteenth Street,
Malta, OH 43758-0369. A true and correct copy of the attached Notice of Default Pursuant to
Pa.R.C.P. 237.5 and Certificate of Mailing Form 3817 evidencing mailing of same regular first
class mail to Defendant on said date and also U.S. Postal Certified Receipt form likewise
evidencing mailing by Certified Mail on said same date o Defendant and receipt by Defendant
on October 24, 2013 as per attached PS Form 381 Tare a ched hereto collectively as Exhibit
..B..
James R. ippi r, Esquire
Sworn to and subscribed
bef re me this to'�`, day of ,�D�n 6J —, 2013.
Notary Public
My Commission Expires /0' `r _ _ _
COMY�tOtV��::�1.'�`�!OF F��!��YLY�,��;Ah
ii OV111al Seai w �^
Deborah L.3uiia:;,Notary sa�:at::C
susquehanna.wp.,Uauphln Gcunty f
My Commission,E Tres."k 20 ,( E! E
Member.Pennsvlvari?7 ssec9 aticn
Exhibit B
James R. Clippinger, Esquire
Attorney I.D. No. 07159
CALDWELL & KEARNS
3631 North Front Street
Harrisburg,PA 17110
jclippinger@cklegal.net
Telephone: (717) 232-7661/Facsimile: (717) 232-2766
JAMES P. PIGOTT, JR. IN THE COURT OF COMMON PLEAS
T/A THE PIGOTT AGENCY CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. No. 13-3222
ABC MANUFACTURING, INC. CIVIL ACTION - LAW
T/A MALTA WINDOWS &
DOORS
Defendant
To: ABC Manufacturing, Inc.
t/a Malta Windows & Doors
Attn: Wade Benjamin, President & CEO
210 Thirteenth Street
Malta, OH 43758-0369
Date of Notice: October 22, 2013
NOTICE OF DEFAULT FOR FAILURE TO PLEAD PURSUANT TO PA.R.C.P 237.5
IMPORTANT NOTICE: 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
(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, GO TO OR TELEPHONE THE OFFICE SET FORTH
BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT
HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE
ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY
OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO
FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 S. Bedford Street
Carlisle,PA 17013
Phone: (717)249-3166
or(800) 990-9108
Respectfully Submitted,
Dated: �i� � cq �-,DOD 13 `
James R .clipping,r, Esquire
Attorney I.1 No. 07159
CALDWELl� & Kt ARNS
3631 North Front Street
Harrisburg, PA 17110
jelippinger@cklegal.net
P: (717) 232-7661/F: (717) 232-2766
11083-002/208058
postal
CERTIFIED MAIL,, RECEiFT
C3 (Domestic I R Insfiranre Coverage,Provided) Be
Ir
f q f .'
17-
- , j >
•0 Postage `$
-11 l
Certified Fee I i Po3tmarlt O
C3 ff" Here
C3 Return Reoelpt Fee
C3 (EndorsemeM Required) �,� _
C3 Ri3stdoted Dellvery Fee J S Q
C3 (Endorsement Requlred) •��f
w
CU Total Postage&Fees $
O
bent To
Ir ABC Manufacturing,Inc. a
street tfa Malta Windows&Doors
C3 oc President&CEO ___
r%- Clry,S Attn: Wade Benjamin,
_•
210 Thirteenth Street
Malta,OH 43758-0369
I
UNfTED571 m
PQ3fflL�JR(/KEs CIertificate 1 Totray fee,9f otoVsor
hretefpost�gehem,.
This ceruflweofivieurr�goravidesev�denoe-th to PfiBfe
This form maybe arced fordomesttc end.iriem �t7. / �-
C �
From:. tJ„n A Jr a =2WA
rA1C. ' PITNEY-BOWES
tea w $ 001.200
0004672370 OCT 22 2013
1 tiDEl-7110
der �
09
AAn: ti `"
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3�Sr
IF
PS Form 3817,April 2007 PSN 7530-02-0004065 U
SENDER: CO •
■ Complete items 1,2,and 3.Also complete A. Signature
item 4 if Restricted Delivery is desired. ❑Agent
■ Print your name and address on the reverse Q'✓r&Al- '❑Addressee
so that We can return the cans to you. Received by(Printed ) of ry
■ Attach this card to the back of the mailpiece, i l.� �i.
or on the front if space permits. v c--
D. Is delivery address different from Item 1? Yes
1. Article Addressed to: If YES,enter delivery address bel� r
r
AB anu actunng, nc.
tla Malta Windows&Doors
Attn: Wade Benjamin,President&CEO
210 Thirteenth Street 3. Type
Malta,OH 43758-0369 Certified Mail �❑ rasa Mail
-- --- �-— -— -- --
13 Registered O'Retum Receipt for Merchandise
❑Insured Mail ❑C.O.D.
4. Restricted Delivery?(Extra Fee) ❑Yes
2. Article Numb i , `-- -
(in3rrsfer frdm�serv •/abelj
7009 0'8 211, ' u 0 0 4 6 6 7 1519
P3 FOW13$it1,Fe"W,2004 Domestic Return Receipt 102595-02-
CERTIFICATE OF SERVICE
eday AND NOW, this of NQ4eJD'c - , 2013, I hereby certify that I have
served a copy of the Praecipe for Entry of Judgment on the following by depositing a true and
correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid,
addressed to:
ABC Manufacturing, Inc.
t/a Malta Windows &Doors
Attn: Wade Benjamin, President& CEO
210 Thirteenth Street
Malta, OH 43758-0369
CALDWELL & KEARNS
By: / 1 �`7')\,o/i,- -
Marcy Mc U erson
James R. Clippinger, Esquire
Attorney I.D. No. 07159
CALDWELL & KEARNS
3631 North Front Street
Harrisburg, PA 17110
jclippinger@cklegal.net
Telephone: (717) 232-7661/Facsimile: (717) 232-2766
JAMES P. PIGOTT, JR. IN THE COURT OF COMMON PLEAS
T/A THE PIGOTT AGENCY CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. No. 13-3222
ABC MANUFACTURING, INC. CIVIL ACTION - LAW
T/A MALTA WINDOWS &
DOORS
Defendant
To: ABC Manufacturing, Inc.
t/a Malta Windows & Doors
Attn: Wade Benjamin, President& CEO
210 Thirteenth Street
Malta, OH 43758-0369
You are hereby notified that on �V ,7 2013, the following
JUDGMENT has been entered against you in the above-captioned case.
�,
JUDGMENT BY DEFAULT - $141';791 4t—1
r .
Le I
y
C
Date: III
Prothonotary
I hereby certify that the name and address of the proper person(s) to receive this notice is:
ABC Manufacturing, Inc.
t/a Malta Windows & Doors
Attn: Wade Benjamin, President& CEO
210 Thirteenth Street
Malta, OH 43758-0369
ABC Manufacturing, Inc., t/a Malta Windows & Doors/ a Defendido
Por este medio se le esta notificando que el de del
2013, el/la siguiente (ORDEN), (DECRETO), (FALLO) ha sido anotado en contra suya
en el caso mencionado en el epigrafe.
Fedha:
Protonotario
Certifico que in siguiente direccion es la del defendido/a segun indicada en el certificado
de residencia:
ABC Manufacturing, Inc.
t/a Malta Windows & Doors
Attn: Wade Benjamin, President& CEO
210 Thirteenth Street
Malta, OH 43758-0369
Abogado del Demandante