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HomeMy WebLinkAbout05-2745IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, COMMONWEALTH OF PENNSYLVANIA CATERPILLAR FINANCIAL SERVICES CORPORATION, a Delaware corporation, CIVIL ACTION Plaintiff, NO.: j)_$' - a7 l-I(J ?? ? V. BOYD E. DILLER, INC., COMPLAINT Defendant. Code: 100-Replevin Filed on behalf of Plaintiff Counsel of Record for this Party: Peter S. Russ Pa. Atty. I.D. No. 58284 Timothy P. Palmer Pa. Atty. I.D. No. 86165 BUCHANAN INGERSOLL PC One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219 (412) 562-8413 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, COMMONWEALTH OF PENNSYLVANIA CATERPILLAR FINANCIAL SERVICES CORPORATION, a Delaware corporation, CIVIL ACTION Plaintiff, V. BOYD E. DILLER, INC., Defendant. NO.: NOTICE TO DEFEND 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 St. Carlisle, Pa. 17013 717-249-3166 1-800-990-9108 Timothy fl. Palmer, Esquire ' #»42448-vi 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, COMMONWEALTH OF PENNSYLVANIA CATERPILLAR FINANCIAL SERVICES CORPORATION, a Delaware corporation, CIVIL ACTION Plaintiff, V. BOYD E. DILLER, INC., Defendant. NO.: ©S -,2tJ5S l cvl??1ZYVl COMPLAINT 1. Plaintiff, Caterpillar Financial Services Corporation, by and through its undersigned counsel, Buchanan Ingersoll PC, files the following Complaint and alleges: PARTIES 2. Plaintiff, Caterpillar Financial Services Corporation ("CAT Financial") is a Delaware corporation registered and qualified to do business in the Commonwealth of Pennsylvania, with its principal place of business located at 2120 West End Avenue, Nashville, Tennessee 37203. 3. Upon information and belief, Defendant, Boyd E. Diller, Inc. ("Diller") is a Pennsylvania corporation with its principal place of business located at 6820 Wertzville Road, Enola, Pennsylvania 17025. JURISDICTION AND VENUE 4. This action arises under the laws of the Commonwealth of Pennsylvania and is within the subject matter jurisdiction of this Court. 5. The Court has personal jurisdiction over Diller pursuant to 41 Pa. C.S. §5301. 6. Venue in this Court is proper because, inter alia, the cause of action arose in Cumberland County, Pennsylvania, the property to be replevied is, upon information and belief, located in Cumberland County and Diller conducts business in Cumberland County. BACKGROUND 7. On or about March 24, 2004, Diller entered into that certain Installment Sales Contract (the "Contract") with CAT Financial. A copy of the Contract is attached hereto as Exhibit "A." 8. Subject to the terms and conditions of the Contract, Diller agreed to purchase a used Caterpillar 963 Caterpillar Track Loader, Serial No. 9BL02172 (the "Equipment"). The Contract provides, among other things, that Diller would pay to CAT Financial the total sum of $143,269.61 according to the terms of the amortization schedule attached and incorporated into the terms of the Contract. 9. Specifically, Diller was obligated to make a $1,000 payment as of March, 2004; $500 monthly payments as of April through November, 2004; and a final payment of $138,269.61 as of December 5, 2004. 10. The Contract provides that it shall constitute an event of default if Diller (defined in the Contract as "Purchaser") fails to make any payment to Seller (Cat Financial) when due. See generally, Contract, ¶ 7. 11. The Contract further provides that: If any Event of Default shall occur, Seller may, at its option, do any one or more of the following: (a) declare all amounts due or to become due under the Contract, excluding any unsecured portion of the Finance Charge, immediately due and payable; (b) recover any additional damages and expenses sustained by Seller throughout by reason of the breach of any covenant, representation or warranty contained in this Contract; (c) enforce the security -2- interest granted hereunder; (d) without notice, liability or legal process, enter upon the premises where any of the Units or additional security may be and take possession thereof ; and (e) require Purchaser to assemble the Units and additional security and make them available to Seller at a place designated by Seller which is reasonably convenient to both parties. Time is of the essence of this Contract.... Purchaser agrees to pay all reasonable attorneys' fees (to the extent permitted by applicable law) and all costs and expenses incurred by Seller in enforcing this Contract.... Contract, ¶ 8. 12. As security for payment under the Contract, Diller granted CAT Financial a continuing security interest in the Equipment. See generally, Contract, ¶ 9. 13. CAT Financial properly perfected its security interest in the Contract by filing appropriate UCC-1 financing statements with the Pennsylvania Department of State, copies of which are attached hereto as Exhibit "B". 14. Diller failed to make the payment due on December 5, 2004, in the amount of $138,269.61, which constitutes a default under the terms of the Contract. 15. As set forth above, upon default, CAT Financial may repossess and sell the Equipment with the proceeds of such disposition to be applied as set forth in the Contract. Contract, ¶ 8. 16. Diller has been notified of its default and, despite demand, has refused to return the Equipment and pay the amounts due CAT Financial. 17. As of May 15, 2005, there remain due and owing under the Contract the amount of $145,058.09 inclusive of late charges and certain other recoverable costs, and exclusive of attorneys' fees and recoverable costs associated with this suit. -3- COUNT I -- REPLEVIN 18. CAT Financial incorporates by reference paragraphs 1 through 17 of the Complaint. 19. The Security Agreement authorizes CAT Financial to repossess the Equipment upon the occurrence of an Event of Default. 20. Diller has defaulted under the terms of the Contract. 21. Upon information and belief, the Equipment in which Defendant granted CAT Financial a security interest was last located at Defendant's place of business at 6820 Wertzville Road, Enola, Pennsylvania 17025. 22. Upon information and belief, the combined wholesale value of the Equipment in Diller's possession, custody or control as described above, assuming it is undamaged, is $78,000.00 23. CAT Financial has determined to repossess the Equipment and is entitled to require Diller to assemble and make the Equipment available for removal. COUNT II -- BREACH OF CONTRACT 24. CAT Financial incorporates by reference paragraphs 1 through 23 of the Complaint. 25. Diller has breached the Contract by failing to: a. pay the final installment to CAT Financial when due; and b. assemble the Equipment and make it available to CAT Financial so that CAT Financial can obtain possession, custody and control of the Equipment. 26. CAT Financial has complied with all of its obligations under the Contract. -4- 27. There is now due and owing from Diller to CAT Financial on account of such financing the sum of $145,058.09 (principal, late fees and processing fees) through May 15, 2005. 28. Pursuant to the Contract, Diller is obligated to pay CAT Financial's costs and expenses incurred in the collection of the balance of Diller's obligation, including without limitation actual expenditures for reasonable attorneys' fees and legal expenses incurred herein, and in enforcing CAT Financial's rights and remedies. CAT Financial has been required to retain the services of an attorney to represent it in this proceeding and is entitled to recover its court costs and reasonable attorneys' fees. 29. As a result of its defaults and in accordance with the terms and conditions of the Contract, Diller is responsible for payment on demand of all amounts due and owing, the total amount of which is $145,058.09 accrued through May 15, 2005, plus all recoverable costs, expenses and attorneys' fees accruing thereafter. COUNT III -- ACCOUNT STATED 30. CAT Financial incorporates by reference paragraphs 1 through 29 of the Complaint. 31. By virtue of CAT Financial's acceleration of the balance of Diller's obligation due to its default under the Contract, CAT Financial has stated an account. 32. To date, Diller has refused to pay to CAT Financial the total amount that is due and owing pursuant to the Contract. 33. The amount due to CAT Financial is $145,058.09 as of May 15, 2005, plus recoverable costs, expenses and attorneys' fees. -5- COUNT IV -- UNJUST ENRICHMENT 34. CAT Financial incorporates by reference paragraphs 1 through 33 of the Complaint. 35. CAT Financial financed Diller's purchase of the Equipment with the expectation that Diller would repay all amounts advanced and pay finance charges. 36. Diller has not repaid all amounts that CAT Financial advanced to Diller to purchase the Equipment. 37. It would be unjust to allow Diller to retain the financial benefits and possession of the Equipment that Diller derived only by virtue of CAT Financial's financing efforts. 38. Diller should be required to pay CAT Financial an amount equal to its outstanding balance, which as of May 15, 2005, was $145,058.09 and to return to CAT Financial the Equipment. Although the ultimate money judgment may be reduced by proceeds CAT Financial receives in exchange for the Equipment, if any, CAT Financial is entitled to all relief provided by applicable law, whether in combination or in the alternative. -6- REQUEST FOR RELIEF WHEREFORE, Plaintiff Caterpillar Financial Services Corporation demands judgment in its favor and against Defendant Boyd E. Diller, Inc. as follows: (a) the possession and delivery of the above-described Equipment; (b) the outstanding balance due under the Contract in the amount of $145,058,09, less any net proceeds received following the disposition of the Equipment; (c) an amount equal to the costs, expenses and reasonable attorneys' fees incurred by CAT Financial in recovering the Equipment and in enforcing its rights and remedies under the Contract; and (d) such other relief as the Court deems just and proper. Respectfully submitted, BUCHANAAN INGERSOLL PC By: Peter VRuss, Pa. I.D.#58214 Timothy P. Palmer Pa. Atty. I.D. No. 86165 One Oxford Centre 301 Grant Street, 20a' Floor Pittsburgh, PA 15209 (412) 562-8413 Attorneys for Plaintiff Caterpillar Financial Services Corporation Dated: Mayj?, 2005 -7- VERIFICATION I, Princess Johnson, Special Account Representative of Caterpillar Financial Services Corporation, verify that I have read the foregoing Complaint, that I am authorized to make this Verification on Plaintiffs behalf and that the statements of fact therein are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. r? o Princess Johnsoiy- J Special Accoun resentative Dated: May 2 I, 2005 INSTALLMENT SALE CONTRACT (SECORTI'Y AGREEMENT) PURCHASER(S): DTLLEH, BOND E., UIC. 68M WERTZVIF.LE ROAD ENOLA. PA 17025 SELLER: CATERED AR PDiANCL L SERVICES CORPORATION 2120 West End Aene. Nashvi114TN 31203 OR FIRST MODEL DE6 MTIONOF UNITRI SEI[UU CA6X SrrL! %=PTED, ACKNOWLEDGED WD CERTIFIED BY CATERPILLAR INANCIAL SERVICES CORPORATION kS THE ORIGINAL. 3Y: "1 : EXF(:I ( vICE °fSIDENT F9RSr DFSCBIPrwN Or MDTIONALSECUWry USED (MANE.'XDDELA SeRLW NUhiRER) Sub-TOW_....._.._.._.._._ ................._......_..._..S 143?.6f.at Sales Tax ..................... .............................._......5 R00 L TOW Cash Sale Rie........ ........_ ....................___.S 143.269.61 Cash DoxR Pet ON Net Dedoin Allow ON FIRST DE6CRIRION OFigAD61N COURMENT 2. Toot Donn PaymmL.__ ....... ...... ................._.........S 6.00 USED (MARE. MODUUBlRhu. NUn1EER) 1. Unpaid Helene. ofCoth S (43,20.64 4. ......................_S cup Documm Fee ON Odoo F. ON 5. Physical 64'nageIns¢arec....._..._ .......................5 6. Principal Balance (Ammml FimMM1(N4f5}.............. ._......_...5 143.20AI Trade-i.VA. ON 7. poomet Chege L sus Oming to DW (Time Prim DifENnbD_..._........ ...._....._....._...._.S N4Tmdc in Alk wemrc GOO B. Time Sol. ffotol of ppynnnts) (6 rT) ................._......__......8 :40,269.61 Loca6onef Units: 6320 WFATVILLE ROAD 9. Time Sale Balance FNDLA PA I M5, CVWDUAND (DcfertM PayrKOl PRee)(Sig} ............._...._._._,S 14316441 ' 10. A. VU.IPaeennie Rah Ot0°/. IL Date FMANCE CHARGE beginow am c Febwry 5. 2094 Purchaser bereby ulm and mnveya to Soler the above duvlhed Tmde-io Equipment end wamoh it to be free end clear .fall ebims.Ii eennity hNer,0 end encumbrance except to the extent shown aI ma 1. PAYMENT: Purchaser emi'. pay m Seilm, al PO Be. 13834 Nowak. NI 07 1M-W toe sueb other iocauon Sell, deugemo, in writing, the Time wleuec (hem 8 xb.). fell. (chek I.) I (b)1: (a)in_equal imWlmenR OfS_exh, miU Ne Orstimuilmcnt tlue on ,ud Ne balmx of tlic htsbllmeon due on Gs like day ofexh thaeaM,(exapt nm payinnin shall be aue LurinB?nnnOds)of WA ),until the enSrc iMebledieu hu hem paid;m X (b) I. acewdance vnih the P,.t Schedule NeuA,d m No Con.L (Provisions of action I cominuedon reverse.) SEE REVERSE SIDE TOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE A PART OF THIS CONTRACT LIABILITY TNSURYSCE COVERAGE FOR BODILY INJURY AND PROPERTY DAMAGE CAUSED TO OTHERS TS NOT MCLUDED TN TIUB CONTRACT. NOTICE TO PURCHASER: (1) DO NOT SIGN THIS CONTRACT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK Si R) YOU, ARE EM'ITLED TO AN EXACT COPY OF THE CONTRACT YOU SIGN; (3) UNDER THE LAW YOU MAY RAVE THE RIGHT TO PAY OFF IN ADVANCE THE FULL ANIOUN'T DUE AND TO OBTAIN A PARTLY, REFUND OF THE FINANCE CHARGE PURCHASER ACKNOWLEDGES RECEIPT OF A FULLY COMPLETED COPY OF THIS CONTRACT EXECUTED BY PLRCHAMR. THUS CONTRACTIS NOT BINDING UMU SPI3 FR UNTT_ EXECLTM BY AN AUTHORIZED REPRESENTATIVE OF SELLER Pumbuu(s) end Selo have poly exmumd Ilm ConmacluW mga ?,20434 DILL seR DdLER BOND E, INC. -e__ By . Name(PRINn 41)M . .L•. ?` ?-e ??`? Shccr VATERPD.LAR FINANCIAL SERVICES CORPORA77ON By .?...J Namc(KUNT)14'6eT7J 1?,-, 5:J1 I- CS/ f EIA/}L. /7CC[J?rt)?Ikk?/'?(v/L. Tide ¦II Eie E(LLkktIXH'L ?l it ¦104ISH?T81L4\11Wk\?UI ADDITIONAL TERMS AND CONDMONS 1, PAYN ENT ormikemde Finish.., shall WY k Wlier a lor WYPmnt charge egtul to the lesser of (e) tW E?hest <hnp JbnM by kw m fb) 5R of the amount of any payment (including any xrelevald Mymem) me made ohm it., order This Curtin (..such leer dine as may Iw «gnad by.ppHWA. kw} 1". prepayment in full or ucrekW:oo film Kral umuid Time H+laawe, Punhssn dull taeivx a oak of IM1e untamed portion of the Fiwaa CM1erge mmpnW on an sewHJ Innis less a pcce„int Re. Escept m athetwue ramnsly provided herein, the obligation of Punaur heraeder shall .wt be vRmbd by any defnt in. damage w. loss for imrfamae with pm5enWn Or roc of any UeB, by she sportsmen, of any lien or ream to any Unit, or for any other cares. L DISCLAIMER OF WARRANTIES: Proem ax..rimowloi co, amt ag„n find Seller k riot the many.. of the Urdus) and her Purchaser has selected Ouch Unit baud on Po Wa's ova odgmmt w'ibmut aoy rdimm w ma m m any sutemmn or npmscnW hm made by Wiln. AS BETWEEN SELLER AND PURCHASER. THE W Ir,S) ARE PROVIDED"ASIS" WMICUTANYWARRANMESOFANYKMD. SELLERHERIBBYFxPRESSLYDISCLAIMS a) ALLWARRANIESOFLAERCHANTABHITY, b) ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, AND c) ALL WARRANRFS AGAINST NFRNGEMEM OR THE LIKE Sclkf nsigan a Purehsses its Weest in Bray ofthe mmuruh es warranties Be the Unds). X. POSSESSION. USE AND MAINTENANCE Punbaw shall not(a)o< any Unit impopvly, Bouleasly.umafely or m violubn of any kw or orpdatien on tot Whomil, family, m hmrxbold purposes or fm my eddies mho has in Purdmer, Mpiress (Bushels, syncuRunl busies); (b) Wmtn Ile use of any Unit by arryOneoMn Ilan Positions, the pinnarrem aaHon efany Llnir form Ihr me no aM ustile spni is .Eon er m in the pint The blunnaof Sdkr: m (,I t leas, assignor bamkr, or era. m sues to ex{R any owe elJrtx amenity Inter or encuminme e of Its rior Ilelmde m in any unit. TM iss an and )ball tall h, Famalk, pnpmry imgs<Hve of [Nee use or mmnar of nuehm<nt m alp. Upon on prim maker to Pure rcM1nxr. Wlkr or op .port shall have the right Brost Ism ti the oNitmion) at all tesse:uWe Tina a inspm my Unit. Mrehasm still at its open. maintain .he Unis in good aprxini edrr, rtpe'v vM mMhian. Punhnw Asll not ells my Unit a aRx anY qulpmrnt m any Unit 11 mcF dteruim or Wdifion would aWirpb[ontinelly lnumlW funnionmredarlM1e vaimof TUniL MyahmHOn eraddifim kmy Unitrail Wat the mkrisk of PUrcM1aev. g. TAEESI Puteraet "I immunity NY all lairs, .srosmarts. fees ard other charges when levied Or ..d sy.I,. am Hot, or the ownership or vu thereof. or Has Contw or any WYments made or to be main. Seiler. S. WAIVER AND INDEMNITY; PLRCHASFA HEREBY AGREES TO RELEASE, DEFEND. INDEMNITY AND HOLD HARMLESS SELLER ifs DIRECTORS, OFFICERS. EMPLOYEES. AGENTS AND ASSIGNS FROM AND AGAINST ANY CLAIMS OF PURCHASER OR THIRD PARTIES, INCLUDING CLAIMS BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, PERSONAL INJURY, PROPERTY DAMAGE, STRICT LIABILITY OR NEGLIGENCE, FOR ANY LOSS. DAMAGE OR INA FRY CAUSED By OR REI ATING TO THE DESIGN, MANUFACNRE, SELECTION, DELIVERY, CONDITION. OPERATION, USE, OWNERSHIP, MA IMENANCE OR RRPAIR OF ANY UNIT, FURTHER. PURCHASER AGREES TO BE RESPONSIBLE FOR ALL COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS FEGS, INCLRRRED BY SELLER OR ITS DIRECTORS, OFFICERS. EMPLOYEES, AGENTS AND ASSIGNS IN DEFENDING SUCH CLAIMS OR IN OIFORCING THIS PROVISION. UNDER NO CONDI'HON OR CAUSE OF ACTION SHALL SELLER RE LIABLE FOR ANY LOSS OP ACTUAL OR ANTICIPATED BUSINESS OR PROFITS OR ANY SPECIAL, INDIRECT OR CONSEOUEKDAI DAMAGES. & INSURANCE: Pmchua, al Its <xpnsq shot keep each Unit and it <Ruipmma Eared as Mdh,e..l S<emn, insured agoors all nskv for their fell insurable value and shall maintain emorehrnv ys, Whim Ikbibly insurance in m amount remol»blp a¢pnbh, m Wier. All rush invuanec shill be in )awls form and With such mmpanio ar Seller shall reunably armnive, shall b, primary, minor list, of mnnio roes from am insomme carried by WDO, and shill provide That such imeamr may not be carcelled 0: shared so as to aped the iMCM of WHO, wiN.a. at kart SD dayy prior writer, ,mice to Sell- All honor. ,moron, loss or damage to the Until ard AdditlorW Saurby mall none Baker (or its desfiehrr o as . mand a pay Ek to sperm fur interest may P Psehasn agrees m Priory. Cher of my oery an which may berme ihr bases of an m a claim hneumi and d dm e males any ova e. imumrs w;lam Sells?, kh prow w+inen conunt. Prior the fret ddisxry.f of any Unit to P:udusq Purcluuf sail deliver vm'o SON, sdiRanurym'i,kn¢ opu:h iamnn<ee0vc,o mye 7. EVENTS OF DEFAULT; Each of the folowing shat consimle an'Evem orMlimit' heremedm (a) Punhamer shell fit b make any payment on Seller whin due hereunder or fail so ebu¢[ or pnlmrm any other covenant, agreement m wmnnry made by ?.be., hneuMer, th; any reprtsemation or warranty of Purchaser O.rwined. herein Be in any document fumishW ho Wllrr in e0 sue herewith small he ineemn or misleadfog whin made:(.) any I or addhoml xmaily shall brmme tmA stolen, dam JmOra.blY damaged or e.b..t miry .1- lien, ,him,-.,I" Sneed m encumbmn (other than in favor ofSclkr ne in ISaip roW; (it) my defml: shall occur under any moor opmrwn[ between P...hun .it Seilc: (e) I-mehmevcr any i.uh Furs Conned call can to do b:zsinm, bean, intervals, make m rougnmere for the benefn Mcrrdion or file any petition aurae any ankn:puy, norgariat.h. inim., or mormoemo law, err any other lax for me rdkf of debmn: (D any immlontary poitioa shall be Bind under any bmAmptey stable againat Pueluxr many guarantor of this Course m am resew., Warren, or similar official sail be Reaimed m [eke po.[asion of the pr,Pon!. of Panels. or any pr mor of old, fon.an sure. such pni'ian Our appolnmwm rem.. W in efrm' within JOdoys of acid f lag or appriotmrnq 1,) Sellet shall maeably dam met. be insecure; or OH an) brocb or rmmdatin by any guaranor shall occur Order any guaranty ubuinN by WEer in crm¢mden wid, tho Conowe R REMEDIRS: If my Evert of DekuR shall oaf, Seller may, al its option, do any one or more of the fislim, eg: (a) Delon all amounts due m to become due Sidef this Comment. esrlwSn8 any to eamed potion of 'fie Fiaunv Charge, imormil oily due maid payable (b) maovm any, addition) Hand,, and neuroses named by Seller by «vm or she Mauch of any r,veram. remexnWinn or warmly ennuireal in hjui Overall; (0 <nf the s"son', imps, granted hereunder, (d) without mike, liability or legal pm¢s, me uimn she premise whet any of he Prior Or additimal searmity may tit lost take Wssesehm therm(, and (e) origin Rosevear to asemhle the I am Wditie W security and make tam available to Wlln n a glue Misread M W Fier shish is wxneblY mnveniem te lwlh parties. Vine h of the aims efoki C.... Whin shat! eve JI righm giant to a soeurN may by law aW may,ele, all mania therivelon Wtd by Punaxr anmM as cpmamatm for See eaxnable me of the Units by Pmchaaer. Eelkr may, as tin ppit., va demM1r memmily ramnabk Rum to x11 to Units and additional seemhy, red the proceeds of any such We shall be appl;cd Fin6 to reimburse S.hIm for all materoble rzpenxs of making, burning, pecranrg for We. and selling the Units and additional .ormily. inel Win, ell Wes aW namable Jlomrfe fan, aid scored, to the awJ not previously paid by Parch..... m pay Seller aA xmom t rim due or attrved undo this Consul irriah.g any ... heated paymmn and lam WYmsm charges, My surplus shall be ,it on the m.a smoked tan's. Push. shall porri ly Wy any de(cirmy in Better. Pu,,h sirxkmwdedies J., islet for cah or m chit Se a vmol sJO, refailrr or inn of'h, Units or additional 1.1kY, amt ride Br withum the Units or additional xsvriry bring proem 0 such ale. are all ivmme¢ially numabse. Purchaser agrees to pay all tnvouable anon i fees (to to awro Permind by appiiuble law) a l all units and expenses hammed by Beller In enforcing this Cment. Tar mmdks provided henm shall he cumulative aW in adJid. Io all .her mnMies m law m in cgvily. If Pmchaer (ails to perform any of in oNiyniom undn Iliz Cm,ru, Beller may (but reed vo,) sl any lime theeaOer Wdwm )sets obhyaim, and Pe mp<nue inuu.nd in mnn.1m. iha<wihh mall be Payable by MreBaxf upn di m olL a. SECURITY INTEREST; PURCHASER ASSURANCES AND REPRESENTATIONS: To usime WYmenf ofPUahaanle iWcbleJnae m Seiler hereunder and to peffomunen of all nbligaHuns orpuN:m,r h<resnder, Poorhmn hereby gmam to Seller a mminuint lengthy ire, eat m to Unks. and in to equipment, if any. dersed1sid a Additional Senin4y on ,be limit it Pb CnnOan, including am asachmema, sccemries and optimal !return for sal Urn and Additional Smgdty (wa'll', er not instilled motion) and all stonnitomor. r,plxemm.a a:Witions red am[n:ans tartx, and yraeeds of ail Jae forctoinQ indwgne. Ears not limited W pareJS in the term of cunN Wpn. Purchaser Wilts at ifs npenu, :b any xh and ream, aeknewlN¢c. delhxn Ele, ogles end raaW my da.nem which Wlim deems desirable in is disntion lr pW are SeilMS )amity inwtalmd SdhYS rigors aM l Cunm<t. Purchaser M1,r<bY incranblY ep?cinb Sella m PmeM1esm's Amomry-imFam fm the signing aW Rliny of such dmumme aM amortize Shin m ddegae ow,eis unde Io dax i irkmis 6m C'morurt Puwhaur i1au tbodu m led " m nn se aM W warrmn lgd» m Pweo come Pat it , C ......... s .. li make, deliver and h.O. legally unde inn Cmtem it th) the pcnon <in xannog and daifo substumed C o Se alth,1 lies os mnme oppnmeria with N a s wob Chiais C Oommm ofa is Pt a ond d OWI smue, m.na e, up, and red cuma6ar,P. maMrs, ath is he and walk is I now wamnfd) all a ers fanaenai and oJwr, iinformation Corpora e)l pkn. Poem r1 fm M ugmunts o stoorllo Fat Parxaxt is ark shot rc a I Corporation n8isaned in me, sir afPA (`Bmama La.ien"1: and Purchaser will ref Hunts its form of business otpriaatinn or Business W¢ lim without prim w[dlen notice 1. 5dkr. 10.ASSIGNMENT; COINI'ERPAR'fS:Tar rightsaM,midi. of WlkruWa thilCmwm myW asUpwd Ey S<IM at my time Ifthk COnmctkasdgnedby Sellecthe«rm 'Wller'shall dwortrWh mein whs's msignen, and if assilped to a Wrtmership, sail Onrreefm:E in= such partnership and. forpumma nffia<imn 2. A, 5 mdl nth 10.0m wwh manr,cnmp. n amaiam by SeDn, ILrzhaur shall make all Wyman due hemuMa dindlY x IM party dniQrutW k w.h no[iw, wi'M1ODUny ef0a a Eedunion watmever. Punhaxr m tienets vripce. xn skims and tle(emn Purth+sn may hnx a vim .geodes Behln mi apron Ibt m such claim err defm» wdl W vzuned.Pima Selleh a»iynee. No assignment until, Commit many right or imNpsim beromdermry be made by P:vel:mrr wideard Ou prim whim mwntt of 5erkr. Thor Cement sail be tieding upon eW inurt b Its bexR' of Sella and Purcllsn lad their nesper ive sgecesse,s and lesions. Allhouglt multiple coernrFtrm of ells docmmnp my be signed, may be counterpart wrpud. orknuwhhl,rd and cenifred by Corm0 err Flroxkl Strikes CYTYWBW m. to signature Wp popular the origiWi will wnititme oripi:W chmtel Wpa. 11. EFFECT OF WAIVER; ENTIRE AGREEMENT; MODIFICATION OF CONTRACT; NOTICES; No delay no omission to ne,ise any Oughl or mmrdy soduing to Seller he in w soy far n remedy rem shall el W i the vi • waiver ofmy beach er respi of r. Airy wwirsewnxnt by Seller Iudn thie Qetmaef must hetzdWer shall impair d'ini ImecifrcallY so Poohh. . Thus Conan' "widely Oita ta the rigore . of Sellerail Pumhaxr with rxvpest to o rise the I and superseder do all prier aincmmg with rta(Axl mmero. Nn raridinn cr rretlifcation oflM1is ('omen shall M valid mlm in wn'ing. All notices hoemtler shill W in welting, addresxd m Ouch pant m the Wens sr, IoM m she Font of Pois Cmaon or ah suits .tar Wdxxs m may hrmRa W fumishW a writing. 12 'reiSBVERAD{I.ITl.rnSIIRVfcha11 W be FCOVENANTS:any Pariuoof [his Cementwall Bull womiorderre Jr, t e%xpo Wkn apprm o m r nthew.mlmfi tirrn oci. a COelnheerttdinnedominWbutthe g i ven eRnt. All o blipakro o of f Purclaan under thin Cmtna sal; ev o ff this lp be extra; rmuired for .hillroiln,Pea r , m a imm'.. end prfnrmame. 0. APPLICAOLE LAN', JI!IIIStOICfIOIV AND JURY TRIAL WAIVER PROVISIONS: This A{nnaamf shalt W yovemd by ark mmtr:M umb the laws of Our Sun of Tennessee, whbom g Te:maue T:IE PARTIES 1{FR HERETTO der HEREBY I'WAIVE Fli THE E EIGHT p EIIG{R TO T TOTRAandL B BYY JURY P rRY IN N ANY mnsmu ACTON the ARISING SING OUT O OF any OR std[ RELATED TO TO mm hand within He BWr of IETIi1S AGREEMENT. THE OBLIGATIONS OR THE COLLATERAL ATTACHMENT TO INSTALLMENT SALE CONTRACT (SECURITY AGREEMENT) Dated as of 1 4k-eu .-24-coq between DILLER, BOYD E„ INC. ('PURCHASER") and Caterpillar Financial Services Corporation ("SELLER") PAYMENT SCHEDULE Payment Dales Payment Numbers Payment Amounts Due March 5, 2004 April S-Nny 5. 2Q04 December 20Q4 DILLER, BOYD E., INC. (Purchaser) e S Signature Name(PRINf) 7 Title `' C S J 2 -? '('' Date ? ?L*IriLYWItJH11rrC?I AI /fll 41SHJ.Mhi4J.YM1rll it 1 - 2 -9 10 - S 1,000.00 S 500.00 S 139,269.61 Caterpillar Financial Services Corporation (Seller) Signature Name (PRINT) t4c?vj Title-?F-' &? ttLtenlJ ;? °"'t" a?!? N'?1c. Date J "I1G}f c?i? ?G t? AMORTIZATION SCHEDULE (Multiple Assets) Quote number ..... ............. .............. ............ ............. . 571-580 365 day calculations ............. .............. ......... . .. ....... 360,'360 Customer ....... . ............ .............. .......... . . D0A.ER, BOY D E., :NC. Model ........... ............. .............. ............. ..... 963 Track Loader Serial Number ..... ............ ........ ....... .. ..... ..... .... ........ 9BLO2172 Number of Payments Staring Ending Date Made Balance Loan Payments Principal sat=cc Peb-05-04 0 0.00 143,269.61 0.00 000 143.269.61 Mar-05-04 1 143,269.61 0.00 1.000.00 1.000.00 142,269.61 Apr-05.04 2 142,269.61 0 DD 500,00 500.00 141,769.61 May-05-04 3 141,769.61 0.00 500.00 $00.00 141,269,61 Jun-05-04 4 141,269,61 O,OD $00.00 500.00 140,769.61 Jul-05-04 5 140,769.61 0.00 500.00 500.00 140,269.61 Aug-05-04 6 140,269.61 0.00 500.00 $00.00 t39,769.61 Sep-05-04 7 139,769.6) 0.00 500.00 500.00 139.269.61 Oct-05-04 8 139.269.6) 0100 $00.00 500.00 138.769.61 Nov-05-04 9 138,769.61 0,00 500.00 500.00 138,269.61 Dec-05-04 10 138.269.6! 0.00 138.269.61 08.269.61 0.00 143269.61 143,269,61 143 69.61 T 0 T A 1. 143.269.61 143,269.61 143 269.61 Ending balance not equal to early buy red amount Cat Quote Software 8.02 573-580 Page I Caterpillar Financial Services Corp< UCC FINANCING STATEMENT pLexisxexis Document Solutions S01 Adlai Stevenson Drive Springfield, IL 62703 L OR 20. INDIVIWAL'G U15f NAME FlRSTNAh'E 1 NAME SUFFM 2a. HARING ADDRESS CRY ATE POSTAL WDE 00f Y 2d. u'FINWElIQUMN9 ACO'LIWORE 2b.TYPE OFORGANWTK)N 21, JURISDICTIONOFORGAWZATION Iq. ORGANTIATgNAI lD #, ifany ORGANWTION DEBTOR , I ( Flmw 3. SECURED PARTI"S NAME Ia NAMEwTGTALASSOHEEVASSIGNOR Sfi1) inseM1eMy?pkecu?eClmdy?mmaiyw%) Sc.OFIGANWTION'S W1M.E CATERPILLAR FINANCIAL SERVICRS, CORPORATION 36.INDIVIWAVSU3 NAME FIRSTNAME MIbDLE NAME SUFFIX k. M/[L ADDREs3 GRY SPATE POSTALCGDE COUNTRY 2120 WEST END AVENUE NASHVILLE TN 137218 USA d, This FWANCING STATEMENT b mMet 10wfn0w kmt.. (1) USED CATERPILLAR 963 TRACK LOADER, S(Ni9ELO2172 And substitutions, replacements, additions and accessions thereto, now owned or hereafter acquired and proceeds thereof. S. o .WLIIL" RI:reRrruc:?w.in KNB 9990-001 PA-SOS oXl D nC Gbluctbna FILING OFFICE COPY - UCC FINANCING STATEMENT (FORM UCC1) (REV, 05127102) Rol ma" His! 6cnx,m? uzi.e 6?: ingYlk3G. 1L 63'JO]-1761 EXHIBIT t1l Ci •, ? i7 On SHERIFF'S RETURN - REGULAR CASE NO: 2005-02745 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CATERPILLAR FINANCIAL SERVICES VS BOYD E DILLER INC SHANNON SHERTZER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BOYD E the DEFENDANT , at 1810:00 HOURS, on the 6th day of June 2005 at 6820 WERTZVILLE ROAD ENOLA, PA 17025 by handing to PEGGY PORTER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with NOTICE OF DISPOSITION OF CORPORATE DESIGNEE OF BOYD E DILLER INC and at the same time directing Her attention to the contents thereof. Sheriff's Costs Docketing 18.00 Service 11.84 Postage .37 Surcharge 10.00 .00 40.21 Sworn and Subscribed to before me this day of ?Q05 A.D. - rdthonotary So Answers: R. Thomas Kline 06/07/2005 BUCHANAN INGERSOLL i By: Z / Deputy Sher ff CATERPILLAR FINANCIAL SERVICES CORPORATION, a Delaware corporation Plaintiff V. BOYD E. DILLER, INC., Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION No. 05-2745 Civil Term Replevin ANSWER OF DEFENDANT. BOYD E. DILLER, INC. AND NOW, comes Defendant, Boyd E. Diller, Inc., hic., by and through its counsel, CGA Law Firm (Countess Gilbert Andrews, PC), who files the following Answer to Plaintiff's Complaint and in support thereof avers the following: 1. The filing of the Complaint is admitted. 2. The identity of the Plaintiff is admitted. 3. The identity of the Defendant is admitted. 4. The jurisdiction of this Court for an action in replevin is admitted, although as to any further action the jurisdiction of this Court is not admitted. 5. Personal jurisdiction is admitted. 6. Venue is admitted. 7. The Contract itself is admitted. The fact is, the Contract was a settlement of an agreement that existed between the parties prior to the filing of Chapter 11 bankruptcy by Boyd E. Diller, Inc., to Bankruptcy No. 1-01-02704. 8. The Contract speaks for itself. 9. The Contract speaks for itself. 10. The Contract speaks for itself. 11. The Contract speaks for itself. 12. The Contract speaks for itself. X00146989/1} 13. Those documents contained in Exhibit "B" speak for themselves. 14. Admitted. 15. The Contract speaks for itself. 16. Denied. Upon notification, Diller has agreed to return the equipment, but only upon being given the appropriate credit for its value. 17. After reasonable investigation, the Defendant is without sufficient information or belief to know how the Contract balance was calculated or what other charges have been added. COUNT I - REPLEVIN 18. The Defendant incorporates its answers to Paragraphs 1 through 17 of the Answer. 19. The Security Agreement speaks for itself. 20. Denied. 21. Denied. The equipment is, in fact, located in York County, Pennsylvania at a job site. 22. Admitted, based upon the Defendant's estimation of value. 23. Admitted. COUNT II - BREACH OF CONTRACT 24. The Defendant incorporates its answers to Paragraphs 1 through 23 of the Answer. 25. a. It is admitted that Diller did not pay the final installment; and b. It is denied that Diller has refused to turn over the equipment, having offered to do so based upon inspection and agreement of the value of the equipment in question. jm1L6999/1? 26. Admitted that CAT Financial complied with the obligations of the present Contract. It must be pointed out, however, that the present Contract was because of a failure on the part of CAT Financial to timely act while this piece of equipment was being handled through the previously referred to bankruptcy. The within Contract was intended to be full and complete satisfaction of all obligations existing between CAT Financial and Defendant. 27. After reasonable investigation, the Defendant is without sufficient information as to understand the breakdown of principal, interest, late fees, processing fees, costs and counsel fees and requests that such an accounting be provided. 28. The Contract speaks for itself. The Contract does not, however, allow CAT Financial to assess charges without a specific accounting, and CAT Financial has not given any breakdown of how it has calculated the balance due and owing. 29. The answer to Paragraph 28 is incorporated by reference. COUNT III - ACCOUNT STATED 30. The Defendant incorporates its answers to Paragraphs I through 29 of the Answer. 31. The answer to Paragraph 28 is incorporated by reference. 32. Admitted. 33. The answer to Paragraph 28 is incorporated by reference. COUNT IV - UNJUST ENRICHMENT 34. The Defendant incorporates its answers to Paragraphs 1 through 33 of the Answer. 35. The Defendant is unaware of what CAT Financial had as an "expectation". IM146989A) 36. Denied. This was a piece of equipment originally leased to the Defendant prior to the Defendant's bankruptcy. The lease was not restructured or handled during the bankruptcy, and CAT Financial was as remiss as Boyd E. Diller, Inc. in bringing this failure to light. The turning of this lease into a Sales Contract was done to solve the problem of how to handle this piece of equipment, and was intended to be in full and complete satisfaction of all obligations between the parties that were not resolved in the bankruptcy. 37. If all this paragraph is seeking is turn over of the equipment, Diller has agreed to return the equipment to CAT Financial. 38. In an action for replevin, where the Defendant has agreed to return the equipment in question, it is denied that the Plaintiff should be entitled to a money judgment for the entirety of the Contract. Rather, any judgment to be entered should give a credit for the value of the equipment at the time that the equipment is returned, which will, in all probability, be prior to the time the judgment is entered. REQUEST FOR RELIEF WHEREFORE, the Defendant responds to the Plaintiffs Request for Relief in the following fashion: (a) the Defendant agrees to give possession of the above-described equipment to the Plaintiff; (b) the value of the equipment should be established, and only at that point should a judgment for the balance be entered; (c) costs, expenses and reasonable attorneys' fees should only be granted based upon those actually incurred in the prosecution of this litigation; It should be remembered that the Defendant has never refused to turn over the equipment. The dispute has been over its value and how to handle any balance due. (d) It is believed there are no other forms of relief which are just and proper and which are otherwise affordable to the Plaintiff. jwl4 gwl Respectfully submitted, CGA Law Firm Countess Gilbert Andrews, PC By: ??tGC1 Ltc V />? Lawrence V. Young, Esq ' e U Pa. Supreme Court I.D. No. 21009 135 North George Street York, PA 17401 (717) 848-4900 Attorneys for Boyd E. Diller, Inc. Dated: July A 2005 {WI4 98911] VERI XIC TION I, the undersigned, for Defendant, Boyd E. Diller, Inc., hereby affirm that I am authorized to make this Verification on its behalf, and that the facts contained in the foregoing Answer are true and correct to the best of my knowledge, information and belief. This statement is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. BOYD E. DILLER, INC. 1 Dated: July J:q., 2005 100146989/Q CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Answer was served on Plaintiff's counsel in the manner indicated below: FIRST-CLASS MAIL POSTAGE PREPAID THEREON ADDRESSED AS FOLLOWS: Peter S. Russ, Esquire Buchanan Ingersoll PC One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15209 Timothy Palmer Buchanan Ingersoll, PC One Oxford Centre 301 Grant St. 20th Floor Pittsburgh PA 15219-1410 CGA Law Firm By: Lawrence V. Young, Esq it Dated: July 1N , 2005 100146969/1) ?> a n ? ? ?? u c - s. Renee K. Simpson Deputy Prothonotary Curtis R. Long prothonotary t e V,,tbonotarv office 3, C,um'bertarib Cpurutp John E, Slike Solicitor CIVIL TERM OF TERMINATION OF COURT CASES ORDER OCTOBER, 2008 AFTER MkILING NOTICE OF Tx DAY OF OCTOB SPONSE CE WITH PA AND NOW THIS 29 RECEH RE?I? IN ACCORDS INTENTION TO PROCE D WIT CASE IS HEREBY TERMINATED C P 230.2 F BY THE COURT, CURTIS R. LONG PROTIiONOTARY . ___..? c.,,,are Carlisle, Pennsylvania 17013 ('i17) 240-6195 Fax (717) 240-6571