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HomeMy WebLinkAbout05-1350 John W. Purcell, Jr. J.D. 29955 Purcell, Krug & Haller 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 jpurcell(Qlpkh.com SHERWOOD-HARSCO, A DIVISION OF HARSCO CORPORATION, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : CIVIL ACTION-LAW : NO. ()~ - IJ{;{) C/~d...~-rt, vs. TYS, INC., Defendant 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 have been served. To defend against the aforementioned claims, a written appearance stating your defenses and objections must be entered and filed in writing by you, the defendant, or by an attorney. You are warned that if you fail to take action against these claims, the court may proceed without you and a judgement for any money claimed in the complaint or for any other claim required by the plaintiff may be entered against you by the court without further notice. You may lose money, 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 (800) 990-9108 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas damandas expuastas en las paginas siguientes, usted tlene viente (20) dias de plazo al partir de la fecha de la demanda y la notificaclon. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demand as en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificaclon y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propledades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TlENNE ABOGAD 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRIDA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL: Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108 John W. Purcell, Jr. I.D. 29955 Purcell, Krug & Haller 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 jpurcell(G)pkh.com SHERWOOD-HARSCO, A DIVISION OF HARSCO CORPORATION, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : CML ACTION-LAW vs. TYS, INC., : NO. OS - /3!){) C;cJ~L~ 82-, Defendant COMPLAINT 1. The Plaintiff is Sherwood-Harsco, a division of HARSCO Corporation, a corporation organized and existing under the laws of the state of Delaware, with an address of 4718 Old Gettysburg Road, Mechanicsburg, Cumberland, Pennsylvania 17055. 2. The Defendant is TYS Inc., a corporation organized and existing under the laws of the state of Massachusetts, with an address of 140 South Main Street, Middletown, Massachusetts 01949. 3. On or about July 30,2004, the Defendant requested that the Plaintiff extend credit on an open account and to that end executed an Application for Credit a copy of which is attached hereto and made a part hereof as Exhibit "A". 4. Plaintiff's application was accepted, and Plaintiff forwarded to Defendant the Plaintiff's "Terms of Sale or Acknowledgment" which set forth the contractual obligations between the parties relative to the open account, a copy of which is attached as Exhibit "B". 5. Defendant maintained an open account with the Plaintiff for the purpose of purchasing equipment and products from the Plaintiff over a period of time on revolving open credit account 6. During the time of Defendant's purchases, Plaintiff maintained books of account, keeping an accurate and running account of all debits and credits for the sale of equipment and products to the Defendant. 7. Defendant was required to pay all sums incurred on the open account in full within 30 days of invoice. 8. The current balance on the open account is $84,456.00, which is more than 30 days overdue, as set forth on the attached Exhibit "G". 9. The amount owed is for the equipment and product as more fully set forth on invoice attached hereto and made a pan hereof as Exhibit "D". 10. The Plaintiff has received all of the goods and merchandise listed on the attached Exhibit "G", has never denied receipt of the same, and has agreed to the fairness and completeness of the amounts set forth therein. 11. All charges stated therein are fair and reasonable and were agreed to by the Defendant in advance of shiprnent 12. Pursuant to the terms of all of the aforementioned Terms of Sale or Acknowledgment, the Defendant is responsible for the payment of all costs and expenses, including liquidated damages of one percent (1%) per month plus collection and accounting costs, which may be incurred by Plaintiff in the collection of the open account with the enforcement of the company's rights and remedies thereunder. 13. Plaintiff has made demand upon the Defendant for the full amount of the open account balance obligation, yet despite demand, the Defendant has failed to and/or refused to make payments as aforesaid. 14. Defendant agreed, application for credit and by acceptance of the Plaintiffs Terms of Sale or Acknowledgment, and by acceptance of the equipment and products of the Plaintiff, and partial payment on the open account, that jurisdiction of any claims would be in the Commonwealth of Pennsylvania. WHEREFORE, Plaintiff requests this Honorable Court to enter Judgment in favor of the Plaintiff and against the Defendants in the amount of $84,456.00 as of November 17, 2004, plus continuing liquidated damages of one percent per month on the aforementioned open account, plus reasonable collection fees and costs of suit. Respectfully submitted, PURCELL, KRUG & HALLER ug-03-04 02:15A Yankee Fireplace . !1-#rJ. T(t.L{DY S ~ 978-777-2634 P_Ol __ i' - o ........ -...... ...... - o . -- --.--... o J"I.&\U CHICK TtmAJ'fllt7lUAtll-.:JX fOR 'J'RI;mMP4MY WJIIJl'E YOU WISH TOOBTAJN CRIDIT _.........CIMIrc'......c..,JUD.PA neal P.o. .a_ c..,JIII,PA n.at.... I'IIit-= "17.'7!I~J" ru: '7l1....,~:J192 ~ APPUCA TlON FOR n1r.nrr WE WRHTOOnN AN A./X'lJf.JKt wmc l'tMt COllPAHT JJm ll.l8Mn'nn FOLLOWIHO INPlJaMATION'lO ENABLI YaJro P8TAlN A.CUOlT HlrrolV I'ClIt. TlU..-r PUlI'O&E l'lIlM NAIo{E: -!.S ADDRESS, J'tO $. m09,N S.,., CITY, ('0: dcJ/~ iOtJ HA\l.SOO SAlJ1SMAN: (}')Il11<.. fH JJ 1Yn OF BUSINESS,(CHECK ONE) o Il.C i;ij CORl'ORATION DATE: 7 3010'1 YEAIlS IN BVSlNESS; do? STATE: ZIP, PIIONE: mI')-. 01'1'+ 9 't.'7Y.77>t-.nI-O EST. ANNUAL PURCHASES: 1,1100,';00 FAX; 178 -777- .:I." "3 o PAIl'INERSHIP o I'JlOPIUETORSHIP OW' PRlNCIPALS:(l'lJLL NAME) POSmoN, SOCIAL SECUIlJ1Y . U...I/i"~ 1./"". '<; :r. ' ,- 0';'/,-$0- S",!, 3 ....... b-" t::___",~ I'OIIITION, SOCIAL SF.CtlRrTY . IJ.-;. (} E. i) oJ7-J.;) - ?;;'51! POSITION: SOCIAL SEClJIlfTY. PURCHASES ARE, 0 TAXABLE Il TAX EXEMPT. If ,...._... ... .._... ,........._ . ....,Iotc.. ....... r.. &tall.... ]1'_ Ibr 0.. _te10 wllldl6" ,1'DIIcId It ......... Uyw. WI to.o ~ Iu wID .. ..... ... caiItdeC. ..,../ TRADE RUI!IlENClItS PHONE: AX: PROm: FAX~ , 'IIONE, !;Jf -YSf- &. 17s PAX' S',f - 5" 3",..:lJ FEllE1lAL ID S 01. SOCIAL SEClJIUlY . tJ HAVE YOU EVU fILED BANlCRUP1'CY1 ACC01JN1ll PAYABLE CONTACT:.Ed ACC01JN1ll PAY ABLE !MAIL ADDIlllSS, TATEm. PURCIIASE ORDl!R REQUlRED1 ACCOUN1li PAYABLE PII0NE. }t~r;f-<i'k,~~. c.oJ")") Gh>k.P ,;;;...'" 5.. f' F;("~.,...p s;:..,,,. :D' ~ o.Jd f.c). frod..d~ Jl'JNANCING _RENCIl 'tJn<./'r,5^6'ZI B(II.J It!-- ADDIWIS PRONMAX NUMIIERS PIIONE, ~7~-73"f-IPJ.J FAX: 'i7i' -73 "f ' ID.;J. r,. (r\,lel IF.J.,,.J rn" . REQUIJU:D lU!:LEASJ: AUTIfOlUZATlON SIGNATVIU: I bcftby aulhoriu lbt v. ~ fj' ;'1 b.tnt to n:1usc 11I1)' iaf'<nnatioa. ~ ill 1lIt&b1ilhin.. 1m!: of mldit mu: PLEASE FAX TO: 7l7-97~389:Z .......... ey-'D \l \\ ,. J-\ AUG 02 '04 17'08 978 777 2634 PAGE. 01 ~ ., Sherwood TERMS OF SALE OR ACKNOWLEDGEMENT Revised February 11,2004 Supersedes All Previous Terms And Conditions Of Sale Har.sco ACCEPTANCE OF TERMS AND CONDITIONS-The acceptance of the Terms and Conditions contained herein is an essential prerequisite to any contract of sale made by Seller. Any offer or acceptance by Seller is made subject to the terms and conditions contained herein and no additional or different terms offered by Buyer shall become a part of the Agreement of Sale between Serler and Buyer unless such terms have been expressly approved in writing by an authorized agent of Seller. If this document is an offer, acceptance of this offer Is expressly limited to the terms hereof, and Seller reserves the right to withdraw this offer at any time before its acceptance by Buyer. If this document has been issued by Seller in response to a written affer made by Buyer, Seller's acceptance of Buyer's offer is expressly conditioned on Buyer's assent to the additional or different terms contained herein. If these terms and conditions are not acceptable, Buyer shall notify Seller in writing at once. Buyer's action in (a) accepting any goods manufactured and delivered hereunder, or (b) receiving this document without disaffirmance within three (3) business days of receipt shall constltute an unqualified acceptance by Buyer of the Terms and Conditions contained herein. PAYMENT TERMS - All prices do not include local, state or federal taxes. Taxes are for the account of the Buyer. Payment of shipping costs will be in accordance with the provisions on the face hereof. Payment terms appear on the face of our invoice. All orders are subject to credit approval. DELIVERY. All delivery terms and dates are subject to the availability of the necessary shop space, transportation and production hours. Unless otherwise specified on the face of this invoice, title and risk of loss pass from Seller to Buyer at the point of shipment. CANCELLATION - Cancellation of order or portions thereof will not be accepted after material has been purchased or fabrication has been started and will subject Buyer to special, direct, indirect and consequential damages. MINIMUM ORDERS - All orders are subject to a minimum order requirement of one hundred dollars {$100.00} net billing per invoice. UQUIOA TED DAMAGES - Buyer agrees that if any invoice or part thereof is not paid and SeIJer is required to instibJte legal proceedings for collection of any invoice or part thereof that Seller may impose as liquidated Damages a charge of one (1 %) percent per month or the maximum applicable legal amount upon any overdue amount to offset Seller's anticipated damages, including collection and accounting costs. JURISDICTION AND VENUE - The validity, performance and interpretation of this Agreement shaD be governed by the laws of the Commonwealth of Pennsylvania and of the United States except for any such law which incorporates the United Nations Convention on Contracts for the International Sale of Goods or any other International Law. The parties agree that any controversy arising under this Agreement shall be determined by the federal or state courts situated in the Commonwealth of Pennsylvania, and both parties hereby submit and consent to the jurisdiction and venue of said courts. CLAIMS - The SeUer will not be responsible for handling, storage, demurrage or any other transportation or accessorial service on orders for shipment outside the United States, TOLERANCES & VARIATIONS - Unless otherwise specified by Buyer in writing on front of these Terms of Sale, all goods will be subject to tolerances and variations consistent with usual trade practices regarding dimensions, straightness, section, corrposition and mechanical properties and normal variations in surface and internal conditions and quality and will also be subject to deviations from tolerances and variations consistent with practical testing and inspection methods. FILINGS - Buyer upon request of the Seller will execute any documents necessary, including UCC statements to evidence Buyers indebtedness to Seller. COMPLIANCE - SeUer states its intention to comply with all Federal laws applicable to Seller's performance. DELAY - Seller will not be responsible for any delay in performance due to acts of God, war, riots, embargoes, acts of civil or mi<<tary authorities, fires, floods, accidents, quarantine restrictions, mill conditions, strikes, differences with workmen, delays in transportation, shortage of cars, fuel, labor or materials, or any cause beyond the reasonable control of the Seller. LIMITED WARRANTY-Seller warrants its product free of defects in material and workmanship under normal use in service for the purpose for which the product was manufactured for the following periods; Compressed Gas Products 1 year Scuba Products 1 year Life Support Products 1 year Specialty Gas 1 year Refrigeration Products 1 year Propane Products 3 years Warranty period starts from the date the product was shipped from Seller'S manufacturing plant to the first purchaser. Se"et will, at its option, repair or replace without cI1arge any defective item covered by this warranty. This WARRANTY EXTENDS ONLY TO THE FIRST PURCHASER of the Selle"s product and does not extend to a consumer who purchases Seller's product from a dealer or otherwise. THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE. SELLER SHALL NOT BE LIABLE FOR ANV CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES RESULTING FROM THE DELIVERY, USE OR FAILURE OF THE PRODUCT (INCLUDING LOSS OF ANY MATERIALS STORED IN PRODUCT), OR FROM ANY OTHER CAUSE WHATSOEVER. BY ACCEPTING DELIVERY OF THE PRODUCT SOLD HEREUNDER, THE BUYER ACCEPTS THIS LIMITATION OF REMEDIES AS REASONABLE AND ENFORCEABLE. IN NO EVENT SHALL SELLER.S LIABILITY EXCEED THE PURCHASE PRICE FOR THE PROCUCT. This warranty does not cover damage caused by misuse or negligence and does not cover or apply to any product, accessory, part or attachment which is manufactured by someone other than Seller. Seller manufactures and warrants only the tank or container portion of this product. The valves and related fittings, regulators, gauging devices, hoses and hose-end connections and similar equipment which may be sold with Seller's product are manufactured by others and are not covered by this warranty. If Buyer believes that any part of Seller's product is defective, Buyer must give written notice to Seller at the address on the reverse side of this document before the expIration of the initial warranty period, gi.....ing details as to date and place of purchase, serial number, and alleged defect. SeUer willlhen gi'Je written instructions to Buyer regarding the manner in which the defective item is to be repaired or replaced. Buyer may be requested to return the item at Buyer's expense, but no return should be made until Buyer has received written instructions from Seller. Seller wilt then perfonn under this warranty within thirty (30) days after the defective item is returned to SeUer. THE ABOVE EXPRESS WARRANTY IS IN LIEU OF ANY WARRANTY OF MERCHANTABILITY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THIS PRODUCT. ALL WARRANTIES ARE LIMITED IN DURATION TO A PERIOD OF ONE (1) YEAR FROM THE DATE THIS PRODUCT WAS SHIPPED FROM SELLER'S MANUFACTURING PLANT. This warranty gives Buyer specific legal rights, and you may also have other rights which vary from State to State. c: ~\) ,?"~' \0' ~ Sherwood Invoice: 14139095 RI 10/18/04 Sales Order: 97393 SO 2111 Liberty Dr., Niagara Falls, N.Y. 14304-3744 Tel. 716-505-4800' Fax 716-505-4859 Har:sco REMIT TO: SHERWOOD HARSCO CORP. P.O. BOX 532861 ATLANTA GA. 30353-2861 BILL TO: 29079 TYS INC 140 S MAIN ST MIDDLETON MA 01949 Customer P.O.: 16533 Ship Via: YELLOW FREIGHT F.O.B.: Origin-Prepaid SHIP TO: 29079 TYSINC 140 S MAIN ST MIDDLETON MA 01949 Line: ftem Number: 4.000 PVE3349PDLG-402B Description: OPD VALVE 4.0 DIP TUBE - 20# W Quantity: Unit Price: Extended: 18768 4.5000 84.456.00 THIS IS A DUPLICATE INVOICE COpy PROVIDED AT YOUR REQUEST Visit our website at WWW.sherwoodvalve.com for information on our new Global Industrial Cylinder Valve and our OXY-GEN I Medical Integrated Valve/Regulator. Payment Terms: Terms Net 30 Tax: .00 Processed By: TCORDORA2 Total Invoice: 84,456.00 t=-i<--\, ,\ \ " C" 03203 Parent Number. customer Nmbr. TYS INC 140 S MAIN ST MIDDLETON MA 01949 Account Status Summary Mode - Real Time As of 12/06/04 Co 29079 Credit Message . Temp Credit Message. (978) 223-1331 Contact: Average Days Late. First Invoice. Last Invoice . Last Paid. . Last Statement Date. Last Message 08/05/04 10/18/04 10/15/04 12/01/04 Future Current 1 30 31 60 61 90 91 120 121 150 151 999 Over 999 Total Open Amount. Credit Limit . . . Over Credit Limit. Invoiced This Year Invoiced Prior Year. Last Paid Amount . . 84,456.00 84,456.00 200,000 253,368.00 168,912.00 Amount Currency Code USD U.S. Dollar F5=Hho. '.s Who F6=.E-.I'lail. F.8.=Cus.t. .Mas.t. . F16.=Ledg. .Inq . F1.8./F19.=Mode F24=.M.ore \, \\ \. E: '1-\\ :\J \~ \; VERIFICATION COMPANY NAME: HARSCO CORPORATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 PA C.S. S 4904 relating to unsworn falsification to authorities. Dated: 311)0 S- + C:)N+.aO llt.e. - HG:S -jj0t; \f T'~ ~ If( -- - C> ~ -t::_) _ ..0 ~V "\)t-F Q ~ '-......f.... ......"l >;;>: ./~ ()\ ....-;..1 .-' ~(. ....(" , " "'. ~ " ., c,:' ,..,-- \..;<..l ~1 AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania County of Cumberland Common Pleas Court Case Number: 05-1350 Plaintiff: SHERWOOD-HARSCO, A DIVISION OF HARSCO CORPORATION, vs. Defendant: TYS, INC., For: Choice Process-TAMPA Post Office Box 1215 Tampa, FL 33601 Received by Choice Process-TAMPA on the 22nd day of March, 2005 at 2:5 pm to be served on TYS INCORPORATED: 140 SOUTH MAIN STREET MIDDLETOWN, MA 0 949. I, Bernardino Lopes, being duly sworn, depose and say that on the 28th day f March, 2005 at 1 :20 pm,l: Served the within named corporation by delivering a true copy of the NOTIC AND COMPLAINT with the date and hour of service endorsed thereon by me to Scott Weldon a the Vice President authorized to accept service on behalf of within named corporation and com Iiance with state statutes. Description of Person Served: Age: 40, Sex: M, Race/Skin Color: White, eight: 6'0, Weight: 210, Hair: Brown, Glasses: N Subscribed and Sworn to before me on the 29th day of March, 2005 by the affiant who is personally known to me. ~. '-- ~ ~<T;b NARY PUBLIC Bernardino L Process Servers/Cons a e Choice Process-TAM A Post Office Box 1215 Tampa, FL 33601 (813) 229-1444 ~ MARIA BARROS W Notory Public II Commonweo. lth of Massachusetts m My Commission Expires ,',<e'l" 11,2010 Our Job Serial Numbe : 2005001248 Ref: 2005001389 Service Fee: Copyright e 1992-2001 Database Services, Jnc. - Process Server's Toolbox V5_Sf (") s; ., -r.~;i"r qJq' ~2 ~(~, 5~:~: ~ <-> = = en ;)00 -0 ::0 I 0"\ o -n :r!-n "'lTi -09 1:-36 ==t:+\ Q(') ..-:~ r-n O. ,:::.! ~~ -0 ::n: U1 en JOM W. Purcell, Jr. I.D. 29955 Purcell, Kmg & Haller 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 iourcell(a)pkh.com SHERWOOD-HARSCO, A DIVISION OF HARSCO CORPORATION, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : CIVIL ACTION-LAW vs. : NO. 05-1350 CML TERM TYS, INC., Defendant PRAECIPE TO THE PROTHONOTARY: Please mark the above captioned matter settled and discontinued with prejudice. BY JOM . Purcell, Jr. I.D ;1129955 19 North Front Street Harrisburg, PA 17102 (717) 234-4178 ), z, (. .:)~- Dated: ,_ r"--' f'~-' c::-~, c;::) ..::.J'"1 .-j -.,- ;':-1 "~,) {~'::'