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Home My WebLink About05-5977 Todd J. Shill, Esquire Attorney J.D. No. 69225 James J. Jarecki, Esquire Attorney J.D. No. 89580 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INe., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYL VANIA Plaintiff CIVIL ACTION - LAW NO. 0:; -S'97'7 CI.Ut/" Yf'fl...~ v. LAURA KOPETSKY TRI-AX, INC., JURY TRIAL DEMANDED Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim 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 OR YOU 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 AVISO USTED HA SIDE DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se Ie advierte de que si usted faHa de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un faHo por cualquier suma de dinero reclamada en la demanda 0 cualquier otra reclamacion 0 remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos importantes para usted. USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VA Y A A LA SIGUlENTE OFICINA PARA A VERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 Todd J. Shill, Esquire Attorney I.D. No. 69225 James J. Jarecki, Esquire Attorney I.D. No. 89580 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Computer Support. Inc. COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION - LAW Q. LL- NO. Of; -S97^( L-Wl 1'fAn1 LAURA KOPETSKY TRI-AX, INC., JURY TRIAL DEMANDED Defendant COMPLAINT NOW COMES Plaintiff Computer Support, Inc. [hereinafter "CSI"], by its attorneys, Rhoads & Sinon LLP, and files the within Complaint as follows: 1. CSI is a business corporation organized and existing under the laws of Pennsylvania with a business address of P.O. Box 2429, Mechanicsburg, Pennsylvania, 17055-2429. 2. CSI is a provider of computer software for the trucking industry. 3. Defendant Laura Kopetsky Tri-Ax, Inc. [hereinafter 'Tri-Ax"] is a business corporation organized and existing under the laws of Indiana, with a business address of 5320 South Belmont, Indianapolis, Indiana, 46217. 4. Tn-Ax is engaged in the trucking business. DeALS-I.581 968- 5. In or about October 2004, CSI entered into a License and Support Agreement with Tri-Ax [hereinafter "the Agreement"], whereby CSI agreed to license its CSLRoad computer software (core applications, accounting, and add-on applications) to Tri-Ax for a one-time fee of $46,500. A true and correct copy of the Agreement is attached hereto as "Exhibit A." 6. As part of the Agreement, CSI agreed to provide additional consulting and support services including, but not limited to, custom software modifications, at an hourly rate of $125.00 plus expenses. Id. 7. After signing the Agreement, Tri-Ax verbally requested that CSI perform program modifications and upgrades to its standard CSI.Road software. 8. On the basis of the Agreement and the foregoing verbal request made by Tri-Ax, CSI performed custom software modifications to its standard CSI.Road software. 9. Thereafter, Tri-Ax purposefully failed to satisfy the following invoices for license fees and consulting and support services performed by CSI at Tri-Ax's written and verbal request: Invoice # 5987 6146 I 6279 6407 6432 6458 6488 6534 6561 6585 Date ofInvoice 12/09/04 01/31/05 03/08/05 04/21/05 04/26/05 05/09/05 05/14/05 OS/24/05 06/02/05 06/07/05 Amount of Invoice $ 6,186.28 $28,100.00 $ 8,370.00 $ 666.25 $ 4,166.25 $ 3,601.25 $ 187.50 $ 3,921.88 $ 1,375.00 $ 4,656.94 I Invoice No. 6146 was never satisfied in full. Tri-Ax owed for two (2) payments on the contract ($18,600.00), and the license fee for quote module ($9,500.00). - 2 - 23. It was reasonable for Tri-Ax to expect that its promise to pay for CSI's software licenses and services would induce CSI to provide the software licenses and to perform the services requested. 24. CSI relied upon Tri-Ax's promise to pay for CSI's software licenses and services, and CSI has fully performed. 25. Tri-Ax has benefited by failing to pay CSI $61,721.35, at the expense ofCS!. 26. Injustice will result ifTri-Ax's promise to pay CSI is not enforced. WHEREFORE, Plaintiff Computer Support, Inc. demands judgment in its favor and against Defendant Laura Kopetsky Tri-Ax, Inc. in the total amount of $61,721.35, together with interest, costs, reasonable attorneys' fees, and any other amount this Court deems just and proper. RHOADS & SINON LLP Dated: November 16, 2005 B, TO"';{- James J. Jarecki One South Market Square P. O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. - 5 - VERIFICATION Fred Nichols, deposes and says, subject to the penalties of 18 Pa. C.s. !l 4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief. - --.... ~ ~ - ..~ - ~ -- Fred Nichols Date: 11/15/05 EXHIBIT" A" '/ /, LICENSE AND SUPPORT AGREEMENT , This AGREEMENT (this "Agreement") made and effective as of the day of 2003, (hereinafter referred to as the "Effective Date") is by and between the LAURA KOPETSKY TRI-AX,INC , having a principal place of business at 5320 S. Belmont, Indianapolis, IN .1, 46217 ("LICENSEE") , and C. S. I., Computer Support, Inc., a Pennsylvania Corporation, ("C.S.I."), having a place of business at 54 West Main Street, Mechanicsburg, Pennsylvania 17055 U.S.A. RECITALS WHEREAS, C.S.I. is the developer and owner of certain design, engineering, fabricating, trade secret, trademark, tradename, applications processing and related intellectual property rights necessary and useful in the design, production, and applications of a full range of software packages and related material ("IP" rights) used and useful in managing all aspects of the trucking, shipping and related industries, including its Motor Carriers software applications designated "CSI.Road" (also referred to herein as the "Licensed Program Materials"); WHEREAS, C.S.I. possesses the further engineering and design capability to provide to LICENSEE, on a regular and ongoing basis, all necessary specialty design and technical support to enable and assist LICENSEE to install, utilize, customize and manage the Licensed Program Materials, as well as to develop additional, related systems, and derivatives of existing programs as may be suitable for deployment in the trucking and common carrier by road industry from time to time; WHEREAS, LICENSEE is engaged in the business of trucking, hauling and shipping by road in USA and within specific areas as serviced on the date hereof through truck terminals , each connected to LICENSEE'S server located in Indianapolis,IN.l; WHEREAS, LICENSEE maintains, or is capable of developing with the continuing assistance of C. S. I . , appropriate use of C. S. I . ' s Licensed Program Materials in managing LICENSEE'S business sufficient to satisfy its anticipated market demands and schedules; WHEREAS, C.S.I. desires to provide its full, systematic support to, and to vest in, LICENSEE the right to utilize, customize and deploy such software use throughout the Territory; and regular, and non-exclusive products for Page 6 of 18 /' ~.. f WHEREAS, LICENSEE desires (a) to acquire from C.S.I. a license to use the Licensed Program Materials under the terms and conditions set forth in this license and support agreement (the "License Agreement") and (b) to be supported by the continuing services of C.S.I. in connection with Licensed Program Materials, including the application of know-how, engineering, 'design and technical support from and through the C.S.I. staff and facilities; NOW THEREFORE, the parties to this Agreement, intending to be legally bound, and for good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, hereby agree as fallows: ARTICLE I LICENSE AND SUPPORT SERVICES 1.1. C.S.I. will furnish certain program materials and documentation to LICENSEE, and hereby grants to LICENSEE, and LICENSEE accepts, a nontransferable and nonexclusive license to use the Licensed Program Materials within the Territory; provided, however, that such license shall not be deemed to apply to custom applications as may be specified in Annex A hereto and shall not include release of source codes to LICENSEE, provided further, that such licensed rights may be transferable or assignable, in whole or in part, by LICENSEE to such affiliates of LICENSEE, including other subsidiaries or divisions of its parent, Laura Kopetsky TRI-AX,Inc (however described), designated by LICENSEE (such persons hereinafter referred to as "Sub Licensee's"), subject to the terms and conditions set forth in Article III below, and that any such S,ub Licensee may be entitled to use Licensed Program Materials as may be requested by LICENSEE and consented to by C.S.I., provided further that each such Sub LICENSEE shall execute, and LICENSEE shall provide C.S.I. with a copy of, a Subscription and Assumption Agreement within 60 days of its appointment by LICENSEE as a Sub LICENSEE. C.S.I. shall not be prohibited from granting other licenses in respect of the Licensed Program Materials, or entering into service agreements in respect thereof or otherwise. 1.2 LICENSEE agrees with respect to the Licensed Program materials to accept the responsibility for (a) their selection to achieve LICENSEE'S intended results, (b) their installation, (c) their use, and (d) the results obtained therefrom. Page 7 of 18 /r ~t 1.3 C.S.I. shall, in consideration of the servicing fees provided for in Article III below, provide complete and continuing information, research, design and technical support and advice as may be requested from time to time by LICENSEE concerning the design, refinement and application of Licensed Program Materials, including the development of C.S.'I. standard and special procedures, for application with Licensed Designs, which procedures shall be developed by C.S.I. in reasonable response to requests for same by LICENSEE. If LICENSEE subscribes to CSI's Continuing Support Program C.S.I. will provide to LICENSEE all technical upgrades and improvements as CSI may make upon the Licensed Program Materials from time to time for no additional license fees . 1.4 The applications licensed to LICENSEE are: Referenced in this License Agreement dated the effective date hereunder covering Order Entry/Dispatching, Freight Billing, Driver Settlement, Fuel and Mileage Reporting, and usually inCluding: Accounts Receivable/Payable, and General Ledger as contained in the software system known as CSI.Road. 1.5 C.S.I. expressly reserves the right to determine, in its sole discretion, whether any location transfer of applications of the Licensed Program Materials or additional computer access is (a) in support of LICENSEE'S business within the Territory, (b) is otherwise a new site, (c) is beyond or outside the Territory, (d) is made to an entity (whether an affiliate of LI~ENSEE, a third party, or otherwise) and which, in the cases of (b), (c) or (d), use is therefore not covered by this License Agreement without applying the Sub Licensee procedures set forth in Article III. 1.6 Specialized services may be provided from time to time by C.S.I. upon request for such services by LICENSEE or any of its approved Sub LICENSEEs. The parameters of any such requested service shall be clearly set forth" by LICENSEE, and may include joint research and development of custom or specific applications as may be agreed to by C.S.I. pursuant to such request. By way of example, and not by way of limitation, specialized services may include computer-related consulting services including data conversion, application modifications and integration of programs with other related or unrelated business applications. Page 8 of 18 / ARTICLE II CHARGES 2.1 The one-time licensing charge for the licensed use by the LICENSEE (20 registered users, 80 registered power units, 5 registered terminals/warehouses, and 2 registered federal tax 10' s) of the above-described licensed program materials shall be $46,500,including any down or pre-payment previously made. 2.2 Consulting services, including initial operating software setup and/or preparation of cost estimates for software modifications, shall be paid and payable to C.S.I. for services. requested at the hourly rate of $125. Travel and living expenses are also charged as may be required by C.S.I. in order to provide services in the appropriate circumstances, including for set-up and training work to be performed at LICENSEE'S premises in Indianapolis, IN.l, and shall be promptly reimbursed by LICENSEE upon notice by C.S.I. at the rate incurred. Delayed or withheld payments may result in application shutdown. C.S.I.'s additional fees (article III) commence on the 30th day after delivery of CSI.Road to LICENSEE. It being further provided that personnel of C. S .1. assigned to service the account and systems of LICENSEE shall be selected at the reasonable discretion of C.S.I. and that neither LICENSEE nor any affiliate of LICENSEE shall cause or allow such C.S.I. personnel to quit employment with C.S.I. and become employed by LICENSEE or any of its affiliates for a period of two years after the termination of this License Agreement unless a finder's fee of no less than 50% of the first 12 months' compensation package for such personnel shall also be paid to C.S.I. upon such hiring. 2.3 All payments to be made by LICENSEE to C. S. 1. under this License Agreement shall be made to C.S.I. at its offices as indicated in the Notices section of this License Agreement or at such other location as C.S.I. may notify LICENSEE. 2.4 All references to "dollars" or "$" shall be to lawful currency of the United IN.s. APPLICABLE TAXES 2.5 In addition to the charges specified under this Agreement, the LICENSEE agrees to pay amounts equal to any taxes resulting from this License Agreement, or any activities hereunder, exclusive of property taxes and taxes based on net income. Page 9 of 18 . ~.." ~j~,r .~~ ARTICLE III Additional FEES 3.1 Annual charge of 18% of license and modification fees for license and continuing support services provided by C.S.I. The percent quoted is sUbject to change on an annual basis. 3.2 Additional one time license fees when numbers referenced in Article II 2.1 are exceeded: $3,000 for each registered user $1,500 for each registered power unit $3,500 for each truck terminal or warehouse. $7,500 for each additional company LICENSEE agrees to keep complete records of all data necessary for the determination and computation of royalties (number of users) and further agrees to permit such records to be examined from time to time, after reasonable notice received from C. S . I . during LICENSEE'S normal business hours, to the extent necessary to verify the validity of said written reports, such examination to be made at the expense of C.S.I. by accountants designated by C.S.I. and acceptable to LICENSEE. Page 10 of 18 / ! A. CONFIDENTIALITY; PROPRIETARY RIGHTS INDEMNIFICATION 4.1 C.S.I. represents and warrants to LICENSEE: (a) That it owns the entire right, title and interest in and to the Licensed Program Materials, including, without limitation, the IP rights, and all proprietary rights therein, free and clear of all liens, known claims, security interests or other encumbrances; (b) That neither the Licensed Program Materials, including, without limitation, the IP rights, nor any of the intended uses thereof, will infringe any patents, copyrights, trade secrets, or other proprietary rights of any third parties (including, without limitation, any present or former employees, consultants or shareholders of C. S. I.) ; and C.S.I. has no reason to believe that any such infringement claims could be made; and (c) That C.S.I. and the Licensed Program Materials are Year 2000 compliant in all material respects. 4.2 LICENSEE and C.S.I. shall each take reasonable and continuing steps - to protect the secrecy and confidentiality of information received (and designated as such by the party with proprietary interests in such information) under this License Agreement, using the same degree of care to protect the information that it takes with its own confidential information, and each will only intentionally disclose the information to such of its employees or any Sub LICENSEE as required to use the information or the Licensed Program Materials and only then under an obligation of secrecy binding upon such employees coexten~ive with the parties' obligation of secrecy. Sub LICENSEEs chosen to use Licensed Program Materials, or parts thereof for, or through, LICENSEE will be required to sign a non-disclosure agreement before LICENSEE may disclose confidential information to Sub LICENSEE. The obligation of secrecy and confidentiality shall not apply to any information which: (1) is already known to the party receiving such confidential information; (2) is or becomes generally known to the public through no wrongful act of the party charged with protecting such confidentiality; (3) is received by a party without restriction from a third party; (4) has been or is furnished by the party owning such proprietary interests to a third party wi thout imposing restrictions against use and disclosure similar to those imposed on the party receiving such disclosure herein; or (5) must be publicly disclosed by such party pursuant to the requirements of law, judicial process or governmental regulation. This covenant . shall continue for a period of two (2) years after the date of termination of this License Agreement. Page 11 of 18 ."",. '/;f/: f/ T 4.3 Upon the reasonable request of C. S. I., LICENSEE shall assist C.S.I. in a reasonable way and at C.S.I.'s cost and expense, in executing such filings, documents, licenses and acti~ns as may be required to protect the intellectual property and other rights of C.S.I. in the Licensed Program Materials within the Territory, and LICENSEE shall take or permit no action as may compromise or infringe upon such rights of C.S.I. within the Territory or otherwise. 4.4 LICENSEE shall not duplicate, distribute, demonstrate to any third party, nor lend the Licensed Program Materials without the prior, written consent of C. S. I ., which consent, in the case of affiliates of LICENSEE, shall not be unreasonably withheld. 4.5 The parties recognize and acknowledge that LICENSEE may, in the ordinary course of LICENSEE'S business, provide its own data or information from time to time to its customers, and in doing so, may utilize the Licensed Program Materials as a means of researching or delivering such data or information; provided, however, that nothing in this Section 4.5 shall in any way amend, abridge, relieve, excuse or obviate LICENSEE'S obligation with respect to use, restrictions, treatment and control of the Licensed Program Materials as set forth generally in this Article IV, and provided further that nothing contained in this Section 4.5 or elsewhere in this License Agreement, notwithstanding any provision to the cOntrary, shall create or be deemed to create, any rights, claims, benefits, privity, reliances or expectations in any person who is not a party to this License Agreement either as a third party or incidental beneficiary, or otherwise. In the event that any third party, without regard to whether such party has been previously identified to CSI, who shall receive information or data from LICENSEE utilizing the Licensed Program Materials shall bring any legal action, assert a claim or make a threat or demand of any nature whatsoever upon C. S. I. as a direct or indirect result of LICENSEE's use of or reliance upon, the Licensed Program Materials, including as contemplated in this Secion 4.5, LICENSEE shall indemnify C.S.I., hold C.S.I. harmless and, at the option of C.S.I. assume the defense of C.S.I. in any such action or proceeding, or with respect to any such threat or demand. B. LIMITED WARRANTY 4.6 The Licensed Program Materials will perform generally as demonstrated, provided that it is (a) operated in accordance with the instructions provided LICENSEE by C.S.I. and (b) used on a designed, standard, satisfactorily functioning computer in accordance with specifications provided to LICENSEE by C.S.I. 4.7 C.S.I. makes no representation or warranty, special or general, that the functions contained in the Licensed Program Materials will meet the LICENSEE'S requirements or will operate in the combinations which may be selected for use by the LICENSEE, or that the operation will continue without interruption or error, or that all program defects will be corrected. Page 12 of 18 . " d' THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE . C. LIMITATION OF REMEDIES 4.8 C.S.I.'s entire liability and the LICENSEE'S exclusive remedy shall be limited as follows: In all situations involving performance or non-performance of Licensed Program Materials furnished under this License Agreement, LICENSEE'S remedy is (a) the correction by C.S.I. of program defects, or (b) if after repeated efforts made in good faith, C.S.I. is unable to cause the program to operate as warranted, LICENSEE shall be entitled to recover only actual damages to the extent set forth in the following paragraph and shall in no event include consequential, special or punitive damages. C.S.I.'s liability for damages to the LICENSEE for any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including without limitation, an action sounding in negligence, shall be limited to a refund of the one- time licensing fee actually paid for non-functioning portion of licensed application and shall not include any refund of fees for services actually paid or invoiced in connection wi th such non- functioning portion, provided however that such entitlement to refund shall be exclusive of fees and payments made for services rendered or hardware. ARTICLE V TERM OF AGREEMENT; TERMINATION 5.1 Unless earlier terminated as provided Agreement is perpetual with the exception of which is automatically renewed annually at the rate . hereinafter, this Continued Support current prevailing Failure to pay license fees or other invoices when due may result in interrupted operation of the family of CSIRoad products. Page 13 of 18 ,,# ~ , " 5.2 If at any time either party shall become insolvent, or if any party shall be in material default of any of its obligations under this License Agreement, or any of such party's representations or warranties set forth herein shall be determined to be materially false or incorrect or if formal proceedings shall be commenced to administer either party's affairs or to liquidate its assets, or, if the ownership of either party as presently constituted should change in such a way as to materially and adversely affect such party's ability to perform its obligations under this License Agreement, the other party may, at it option, and upon or after the expiration of thirty (30) days advance notice in writing given to the first party of its intention to do so (and, in the case the notice is given for default, if the default is not meanwhile cured), declare this Agreement terminated by a second written notice to the other party, and thereupon all licenses, rights and privileges of LICENSEE or Sub licensee's or of C.S.I., as the case may be, hereunder shall cease, except (a) that the licenses-, rights and privileges granted under Article I hereof shall continue as to all Licensed Program Materials delivered prior to said termination of this License Agreement, (b) that LICENSEE and Sub LICENSEEs shall have the right to continued use of such Licensed Program Materials without the benefit of continued service or subsequent improvements not existing as of the time of such termination and (c) that C.S.I., or its successors and assigns shall, to the extent permitted by applicable law, transfer and assign all source codes relevant to CSI.Road to an independent bank, trust company or law firm of its selection which shall retain such source codes for the benefit of all C.S.I. LICENSEEs. 5.3 No termination of this License Agreement by expiration or otherwise shall release LICENSEE (or Sub LICENSEE) from any of its obligations accrued hereunder (including its obligations under Article III to furnish IN.ments and to pay compensation with respect to Sub LICENSEEs or rescind or give rise to any rights to rescind anything done or any payment made or other consideration given to either party hereunder prior to the time such termination becomes effective. Page 14 of 18 #. ./- . , ARTICLE VI NOTICES 6.1 Notices of every nature to be given pursuant to.this License Agreement shall be given in writing and addressed to the other party at the address IN.d below or at any other address notice of which is given by one party to the other in accordance with this Article VI: If to LICENSEE: LAURA KOPETSKY TRI-AX,INC 5320 S. Belmont Indianapolis, IN.1, Telephone #: Fax #: If to C. S . 1. : COMPUTER SUPPORT, INC. 54 West Main Street Mechanicsburg, PA 17055 Telephone (717) 691-6707 Fax: (717)691-7303 Any notice shall be deemed to have been duly given if and when regularly sent BY telex, electronic mail, or fax (if confirmed by letter mailed within two (2) days thereafter) or if and when delivered by any other method furnishing receipt of delivery, including by recognized delivery service or by hand. ARTICLE VII MISCELLANEOUS 7.1 This License Agreement will inure to the benefit of and be binding upon the parties. This License Agreement is personal to the parties and may not be assigned or otherwise transferred by either of them without the prior, written consent of the other. 7.2 This License Agreement contains all of the terms and conditions agreed upon by the parties hereto, and supersedes all prior agreements (including any and all exchanges by correspondence, telephone, e-mail, or memorandums of agreement), promises, covenants, arrangements, communications, whether representations or warranties, whether oral or written by any officer, employee or representative of any party, and no other agreement, oral or otherwise, regarding the subject matter of this License Agreement shall be deemed to exist or bind any of the parties hereto. C. S. I. hereby acknowledges and agrees that no further amounts are due to be paid to C. S. I . under the previous Memorandum of Agreement or any interim Agreement between the parties, which agreements are superseded hereby. Page 15 of 18 ~ , 7.3 LICENSEE IRREVOCABLY AGREES, AND FULLY UNDERSTANDS, THAT ALL LAWSUITS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS LICENSE AGREEMENT, INCLUDING THOSE RELATING TO MATTERS OF PERFORMANCE OR RESULTING FROM THIRD PARTY CLAIMS AGAINST ANY PARTY SHALL BE BROUGHT EXCLUSIVELY IN EITHER THE COMMON PLEAS COURT FOR THE COUNTY OF CUMBERLAND, PENNSYLVANIA, OR IN THE UNITED IN.S DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. EACH PARTY TO THIS LICENSE AGREEMENT AGREES TO IRREVOCABLY SUBMIT TO THE PERSONAL JURISDICTION OF SUCH COURTS AND HEREBY WAIVES ANY OBJECTION TO PROPER VENUE RESTING THEREIN AND FURTHER WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUCH LAWSUIT. IN THE EVENT SAID LAWSUIT IS SUCCESSFULLY CONCLUDED IN C.S.I.'S FAVOR,C.S.I. SHALL BE ENTITLED TO RECOVER, FROM LICENSEE, REASONABLE LEGAL FEES AND COSTS INCURRED BY C.S.I. IN THE LAWSUIT, IN ADDITION TO ANY OTHER RELIEF TO WHICH C.S.I. MAY BE ENTITLED 7.4 It is the intent of the parties that the validity, interpretation, and performance of this License Agreement shall be governed by the internal laws of the Commonwealth of Pennsylvania, USA, without regard to its conflicts of laws. 7.5 This License Agreement may be amended, modified or supplemented only by written agreement of the parties, or by their respective duly authorized officers authorized, at any time, provided that no such amendment, modification or supplement shall become effective until such time as both parties shall have executed such wrLting, and until such time, the provisions of this License Agreement shall remain in full force and effect. 7.6 This License Agreement, and any amendment hereto, may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 7.7 Neither LICENSEE nor C.S.I. shall have any responsibility to perform services for or to assume contractual obligations which are the obligation of the other party under this License Agreement; nothing herein shall constitute LICENSEE or C. S. 1. as a joint venturer, partner, agent, representative or employee of the other party. 7.8 In the event any provision or any part of a provision of this License Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, provided it does not materially alter the substance of the agreement between the parties, such holding shall not invalidate or render unenforceable any other provision or part of this License Agreement. 7.9 The captions contained herein are included for convenience only and shall not be considered a part hereof or affect in any manner the construction or interpretation hereof. 7.10 Any controversy over the construction of this License Agreement shall be decided neutrally according to its terms and without regard to events of authorship or negotiation. Page 16 of 18 t " "~::- _ - - .:,_~ /. ,...";'?4 08:18 FAX 3177806129 TRI-AX. JON GUY ~001 ~ ' t",C11S and without regard to events of authorship or nE'1'ltiation. Th L!' License Agreement is not assignable; neither the li.:.'n:ses granted herel.l:lder nor any of the licensed program material or copie5 there"l' may be sublicensed, assigned OJ: tJ:ansferJ:ed by the LICENSEE wit:'wut the pJ:ior written consent of C.S.1. Any attempt to sublicen~!. assign or transfeJ: any of the rights, duties or obligations lllder this License Agreement other than as provided for and under the terms of Article III is void. C.S.I. is not responsible f.)r failure to fulfill its obligations under this License Aqref.:roent due to causes beyond its control. 7.12 No acti:'f, regardless of. form, arising out of may be broug:.,t by either party mOJ:e than two years action has a:~i sen, OJ:, in the area of non-payment, years from th,:~ date of the last payment. 7.11 this Agreement after cause of more than two IN WITN:l!:S WHEREOF, the parties have executed this License Agreement an" caused their Corporate seals to be hereunto affixed as of the da~. and year first above written. By' .At COMPUTER SUPPORT, INC. Sf'clEix{",!O- 8- 2 Date: FR03PElCTl L-~ ~ B~fL~ Date: /fJ/tR6/0't I I I J R J -I#- .1z.e. I :;,;11".... Page 17 of 18 ,-..-..____"! !'"'!!............ ^ ""A 0........._.. 1 ~. = ._, , Annex A Modification Estimate To: From: Date: Re: By the Company's signature below. the Company acknowledges and represents that the current version of CSI.Rcad has been installed and is functioning properly. The Company has reviewed the applications. processed transactions. and is requesting the modification listed on attached exhibit. The Company understands that there is a reasonable probability the time and cost to implement the modification will exceed the respective estima1:2s listed below. The Company understands that CSIRcad is a database application and the modification made may cause a "ripple' affect throughout the application which may take 10ngElr to disclose and longer to implement the appropriate modification than anticipated. The Company understands that it is their responsibllity to 1:2st the modifications with their information prior to using the modification in a production environment The desctiplion of modification requested Is described on accompanying exhibit. The estimated hours are: The down payment amount is: When approval and down payment are received. the modification will be assigned a project # which will also appear on invoices sent to the Company. A draw is established against the down payment. The amounts over and above the down payment will be paid within teons specified on the invoice. As wor1< effort progresses CSI representative will keep company appraised of project status. . Signature and date for Approval: Date: Company Representative The project # Is: The tergeted completion date is: Page 18 of 18 EXHIBIT "B" Computer Support, Inc. P,D. Box 2429 Mechanicsburg, PA 17055 USA COMPUTER SUPPORT, 'NC. INVOICE Invoice Number: Terms: Thursday. December 9, 200~ 00005987.0 .. Due upon receipt .~ Laura Kopetsky Tri Ax Inc. Attn: Laura Kopetsky 5320 South Belmont Indianapolis. IN 46217 Reference Description Invoice Total: Hours Rate Total 13.25 62.50 $828.13 34.25 125.00 $4.281.25 1.42 125.00 $177.50 1.00 125.00 $125.00 1.00 774.40 $774.40 50.92 $6,186.28 20421 11/23/2004 Travel- Travel to/from Kopetsky Tn-Ax. Inc. for trainin9 week of 11/29/2004 through 12/03/2004. 11/23/2004 Training Billable - Onsite Training for Kopetsky - Tri Ax. Inc. for the week of 11/29/2004 through 12/03/2004. 11/29/2004 General Support Billable - Data import (Customer. Driver, Truck, Product, Vendor). 11/29/2004 General Support Billable - Setup ASP service for data entry on in house server. travel & living expense for tom donnelly 20422 20472 20564 PLEASE REFERENCE INVOICE NUMBER: 00005987-0 ON REMITTANCE Make Checks Payable to: Computer Support, Inc. PO. Box 2429 Mechanicsburg, PA 17055 Attention: Accounts Receivable Administrator Page 1 Computer Support, Inc. P.D. Box 2429 Mechanicsburg, PA 17055 USA COMPUTER SUPPORT, INC. Invoice Number: Terms: INVOICE Monday. January 31,200: 00006146-0 ..* Due upon receipt ..~ Laura Kopetsky Tri Ax Inc. Attn: Laura Kopetsky 5320 South Belmont Indianapolis. IN 46217 Reference Description Hours Rate Total 1.00 9.300.00 $9.300.00 1.00 13.500.00 $13.500.00 1.00 9.500.00 $9.500.00 Invoice Total: 3.00 $32,300.00 2nd payment due on contract license fee for maintenance module upgrade license fee for quote module PLEASE REFERENCE INVOICE NUMBER: 00006146-0 ON REMITTANCE Make Checks Payable to: Computer Support, Inc. P.O. Box 2429 Mechanicsburg, PA 17055 Attention: Accounts Receivable Administrator Page 1 , Computer Support, Inc. p.o Box 2429 Mechal1icsbtlrg, PA /7055 USA COMPUTER SUPPORT, INC. Invoice Number: Terms: INVOICE Tuesday. March 8. 200: 00006279-0 .. Due upon receipt ... Laura Kopetskv Tri Ax Inc. Attn: Laura Kopetsky 5320 South Belmont Indianapolis. IN 46217 Reference Description Hours Rate Totai 3rd and final license fee paymen Annual support fee 0.00 69500.00 0.00 0.18 ($12.510.00) $12.510.00 Invoice Totar: 69500.00 $0.00 PLEASE REFERENCE INVOICE NUMBER: 00006279-0 ON REMITTANCE Make Checks Payable to: Computer Support. Inc. P.O. Box 2429 Mechanicsburg. PA 17055 Attention: Accounts Receivable Administrator Page 1 COMPurER SUPPORT, INC. Invoice Number: T arms: Laura Kopetskv Tri Ax Inc. Attn: Laura Kopetsky 5320 South Belmont Indianapolis. IN 46217 Reference Description Hours Computer Support, Inc. P.D. Box 2429 Mechanicsburg, PA 17055 USA INVOICE Thursday, April 21, 2000 00006407-0 ** Due upon receipt *~ Rate Total 22426 408 $510.00 22495 4/13/2005 General Support Billable - Gain access to the Kopetskey server. 4/18/2005 Modification - Create Quote Entry for Contract / Ticket Processing. 1.25 125.00 125.00 $156.25 Invoice Total: 5.33 $666.25 PLEASE REFERENCE INVOICE NUMBER: 00006407-0 ON REMITTANCE Make Checks Payab., to: Computer Support, Inc. P.O. Box 2429 Mechanicsburg, PA 17055 Attention: Accounts Receivable Administrator Page 1 Computer Support, Inc. Fo. Box. 2429 Mechanicsburg, PA 17055 USA COMPUTER SUPPORT, INC. Invoice Number: Terms: INVOICE Tuesday. April 26. 2005 00006432-0 ** Due upon receipt *- Laura Kopetsky Tri Ax Inc. Attn: Laura Kopetsky 5320 South Belmont Indianapolis. IN 46217 Reference Description Hours Rate Total 22495 4/13/2005 General Support Billable - Gain access to Ihe Kopetskey server. 4/18/2005 Modification - Create Quote Entry for Contract / Ticket Processing. 3.50 125.00 $437.50 22426 29.83 125,00 $3,728.75 In\loice Total: 33.33 $4.166.25 PLEASE REFERENCE INVOICE NUMBER: 00006432-0 ON REMITTANCE Make Checks Payable 10: Computer Support, Inc. P.O. Box 2429 Mechanicsburg, PA 17055 Attention: Accounts Receivable Administrator Page 1 Computer Support, Inc. P_D. Box 2429 AJechanicsburg, PA 17055 USA COMPurER 5UPPORr, INC. Invoice Number: Terms: INVOICE Monday. May 9. 200: 00006458-0 ** Due upon receipt *- Laura Kopetsky Tri Ax Inc. Attn: Laura Kopetsky 5320 South Belmont Indianapolis. IN 46217 Reference Description Hours Rate Total 22495 4/18/2005 Modification - Create Quote Entry for Contract I Ticket Processing. 28.81 125.00 $3.601.25 Invoice Total: 28.81 $3.601.25 PLEASE REFERENCE INVOICE NUMBER: 00006458-0 ON REMITTANCE Make Checks Payable to: Computer Support, Inc. P.O. Box 2429 Mechanicsburg, PA 17055 Attention: Accounts Receivable Administrator Page 1 COMPUTER SUPPORT, INC. Laura Kopetskv Trj Ax Inc. Attn: Laura Kopetsky 5320 South Belmont Indianapolis. IN 46217 Reference Description $187.50 22495 Invoice Number: Terms: Hours 4/18/2005 Modification - Create Quote Entry for Contract / Ticket Processing. Computer Support, Inc. P.D. Box 2429 Mechanicsburg, PA /7055 USA INVOICE Saturday. May 14, 200" 00006488-0 ** Due upon receipt ... Rate Total 1.50 125.00 Invoice Total: PLEASE REFERENCE INVOICE NUMBER 00006488-0 ON REMITTANCE Make Checks payabie to: Computer Support, Inc. P.O. Box 2429 Mechanicsburg, PA 17055 Attention: Accounts Receivable Administrator Page 1 1.50 $187.50 Computer Support, Inc. P.D. Box 2429 Mechanicsburg, PA /7055 USA COMPUTER SUPPORT, 'NC. Invoice Number: Terms: INVOICE Tuesday. May 24, 200: 00006534-0 ** Due upon receipt *~ Laura Kopetsky Tri Ax Inc. Attn: Laura Kopetsky 5320 Soulh Belmont Indianapolis. IN 46217 Invoice Total: Hours Rate Total 1.50 125.00 $187.50 6.50 0.00 $0.00 8.25 62.50 $515.63 23.75 125.00 $2.968.75 4.17 0.00 $0.00 2.00 125.00 $250.00 46.17 $3.921.88 Reference Description 23034 5117/2005 General Support Billable. Upgrade and installalion of CSI Road al Kopetsky. 5/17/2005 General Support Non Billable - Upgrade and installalion of CSI Road at Kopetsky. 5/23/2005 Travel- Travel to and from 512312005 Training Billable - Training and working with Kopetsky staff at their offices 5/23/2005 Create. Edit. and Review EstimateslModifications - Estimates for their requests of system modifications 5/23/2005 General Support Billable - Estimates for their requests of system modifications 22968 22968 23029 23030 23034 PLEASE REFERENCE INVOICE NUMBER: 00006534.0 ON REMITTANCE Make Checks Payable to: Computer Support, Jne. P.O. Box 2429 Mechanicsburg, PA 17055 Attention: Accounts Receivable Administrator Page 1 Computer Support, Inc. p. 0. Box 2429 Mechanicsburg, PA 17055 USA COMPUTER SUPPORT, INC. Reference INVOICE Invoice Number: Terms: Thursday, June 2, 2005 00006561-0 .* Due upon receipt .- Laura Kopetsky Tri Ax Inc. Attn: Laura Kopeffiky 5320 South Belmont Indianapolis. IN 46217 23033 23034 Description Hours Rate Total 0.25 125.00 $31.25 2.00 0.00 $0.00 1.25 125.00 $156.25 0.75 125.00 $93.75 3.00 125.00 $375.00 1.25 0.00 $0.00 5.75 125.00 $718.75 14.25 $1.375.00 23038 23062 23063 23064 23108 5/23/2005 Modification - Modify the Ticket Review and Edit form. 5/23/2005 Create. Edit. and Review Estimates/Modifications _ Estimates for their requests of system modifications 5/23/2005 Modification - Ticket Review and Edit: show the driver's settlement. billing rates. billing type. and if it is a mater 5/24/2005 Modification - Add the ablity to place a ticket in Review and Edit on hold. Similar to Settlement hold 5/24/2005 Modification - Add the ability to calculate the haul rate and material rate on different billing unit. For example the 5/24/2005 General Support Non Billable - The commodity is not saving when changed in ticket review and edit. 5/26/2005 Modification - When updating tickets out of ticket entry - generate as would normally be done from review & edit. Invoice Total: PLEASE REFERENCE INVOICE NUMBER: 00006561-0 ON REMITTANCE Make Checks Payable to: Computer Support, Inc. P.O. Box 2429 Mechanicsburg, PA 17055 Attention: Accounts Receivable Administrator Page 1 Computer Support, Inc. P.D. Box 2429 Mechanicsburg, PA /7055 USA COMPUTER SUPPORT, INC. Invoice Number: Terms: INVOICE Tuesday. June 7, 2005 00006585-0 ** Due upon receipt .. Laura Kopetsky Tri Ax Inc. Attn: Laura Kopetsky 5320 South Belmont Indianapolis. IN 46217 Reference Description Hours Rate Total 23031 5/23/2005 Modification - Modify the 'Order Entry' in Dispatch by 9.83 125.00 $1.228.75 Contract. 23032 5/23/2005 Modification - When creating a new contract the contract 1.75 125.00 $218.75 ID will be a CSI system generated number 23038 5/23/2005 Modification - Ticket Review and Edit: show the drive~s 2.58 125.00 $322.50 settlement, bllling rates, billing type, and if it is a mater 23065 5/24/2005 Modification - Add three fields: 1. 'Orginal Date & Time' -- 2.74 125.00 $342.50 which will automatically populate when the quote or cantT 23066 5/24/2005 Modification - When entering a commodity uSing the grid 1.67 125.00 $208.75 in quotes or 'orders in di by contract or in contracts, only 23067 5/24/2005 Modification - Allow a ticket to be printed when an 2.25 125.00 $281.25 orderlcontract is entered in di by contract from the order form, b 23068 5/24/2005 Modification - Drop down for city state combination on 3.17 125.00 $396.25 quotes, order/contract entry in di by contracts and contracts. 23070 5/24/2005 Modification - Add material company division to the 1.00 125.00 $125.00 company maintanance. 23071 5/24/2005 Modification - Add the quote number to the contract 1.50 125.00 $187.50 master file and order entry from dispatch by contract 23108 5/26/2005 Modification - When updating tickets out of ticket entry - 0.84 125.00 $105.00 generate as would normally be done from review & edit. Iisa onsite travel 1.00 1,240.69 $1,240.69 Invoice Total: 28.33 $4,656.94 PLEASE REFERENCE iNVOICE NUMBER: 00006585-0 ON REMrnANCE Make Checks Payable to: Computer Support, Inc. P.O. Box 2429 Mechanicsburg, PA 17055 Attention: Accounts Receivable Administrator Page 1 Computer Support, Inc. 1'.0. Box 2429 Mechanicsburg. PA 17055 USA COMPUTER SUPPORT, 'NC. INVOICE Invoice Number: Terms: Wednesday, June 15, 200!: 00006607-0 ** Due upon receipt .- Laura Kopetskv Tri Ax Inc. Attn: Laura Kopetsky 5320 South Belmont Indianapolis. IN 46217 Reference Description Invoice Total: Hours Rate Total 2.67 125.00 $333.75 9.50 0.00 $0.00 1.25 125.00 $156.25 0.50 0.00 $0.00 13.92 $490.00 23255 6/7/2005 General Support Billable - Scripts. installation. and upgrade of new CSI.Road version. 6/7/2005 General Support Non Billable - Scripts. installation. and upgrade of new CSI.Road version. 6/9/2005 General Support Billable - In Quote for Contacts (QT320) and Contract Maint. (SH300_6). 6/10/2005 General Support Non Billable - When print tickets from contract dispatching, it does not print everything. 23255 23290 23305 PLEASE REFERENCE INVOICE NUMBER: 00006607-0 ON REMITTANCE Make Checks Payable to: Computer Support, Inc. P.O. Box 2429 Mechanicsburg, PA 17055 Attention: Accounts Receivable Administrator Page 1 (:) -6Q ~1L ~ <n -- -!:: ~ ~ )0 "'- ~ ~ --- -.() C) c> ~ --. J:- C) \--- f"-j ~,~;:t ".'-',:} ._J' -,-"': C_;. ~~; .... or. -I't \-i""f~_ -1~'_'" -- "'~:l -,~. <-;! (....::> :~ ;:...) . "\ :'{~ :':;,1 ~- ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMPUTER SUPPORT, INC., Plaintiff CIVIL ACTION - LAW v. NO. 05-5977 LAURA KOPETSKY TRI-AX, INC., Defendant NOTICE TO PLEAD To: Plaintiff Computer Support, Inc. You are hereby notified to file a written response to the within New Matter and Counterclaims within twenty (20) days of service upon you or a judgment may be entered against you. ~~PAXSONLLP /~ Victor P. Sta . e, q. Attorney LD. No. 37449 112 Market Street, 8th Floor Harrisburg, PA 17101 Tel.: (717) 236-4812 Fax: (717) 236-7811 Of Counsel: David Brooks, Esq. BROOKS KOCH & SORG 615 RusseJll Avenue Indianapolis, IN 46225 23687_1 Tel.: (317) 822-3700 Fax: (317) 822-3705 Attorneys for Defendant Laura Kopetsky Tri-Ax, Inc. Dated: January 11,2006 23687_1 IN THE COURT OF COMMON PU:AS OF CUMBERLAND COUNTY, PENNSYLVANIA COMPUTER SUPPORT, INC., Plaintiff CIVIL ACTION - LAW v. NO. 05-5977 LAURA KOPETSKY TRI-AX, INC., Defendant ANSWER, NEW MATTER, AND COUNTERCLAIM OJF DEFENDANT LAURA KOPETSKY TRI-AX, INC., TO PLAINTIFF'S COMPLAINT AND NOW, comes the defendant Laura Kopetsky, Tri-Ax, Inc. ("Kopetsky"), and files the following answer, new matter, and counterclaim to the complaint of the Plaintiff as follows: 1. Denied in that after reasonable investigation the defendant is without sufficient information to foml a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. 2. Admitted upon information and belief that CSl generally provides computer software to trucking concerns. All remaining averments are denied in that after reasonable investigation the defendant is without sufficient infornlation to form a belief as to the truth of these avemlents and strict proof thereof is demanded at time of trial. 3. Admitted. 23650_1 4. Admitted with the clarification that Tri-Ax is engaged in the "dump" trucking business. 5. Admitted that the agreement attached to plaintiffs complaint is a document which speaks for itself and that the parties executed the Agreement on October 8 and 25, 2004. It is admitted that Exhibit A to the complaint is part of the entire agreement, as the exhibit only contains 6 of the 18 pages of the entire agreement. All remaining averments are denied as the Agreement speaks for itself. 6. Denied in that the Agreement is a document that speaks for itself. 7. Denied. After signing the Agreement Tri-Ax repeatedly requested that the programs provided perform as required by Tri-Ax, as was represented to Tri-Ax, and as agreed to between the parties. No modifications outside what was contracted for were requested by Tri-Ax, with the exception of the PC Miler program which was requested by and paid for by Tri-Ax. All remaining averments are denied. 8. Denied. By way of response, defendant incorporates its answer to paragraph 7 as if set forth herein at length. 9. Admitted and denied. Denied that Tri-Ax paid no invoices. To the contrary, Tri- Ax paid approximately $27,000 under its contract with plaintiff and an additional approximate $9,000 for the PC Miler program. It is admitted no further invoices were paid by Tri-Ax because the product contracted for by Tri-Ax with plaintiff was not provided and/or did not and has not performed as requested and as represented. By way 2 23650.] of further response, defendant denies all remaining averments and denies all averments with respect to the attached invoices, as these invoices are documents which speak for themselves. 10. Admitted the attached invoices are addressed to Tri-Ax and that CSI has now made demand for payment. All remaining averments are denied. 11. Defendant incorporates its response to paragraph 9 as though the same were set forth herein at length. All remaining averments are denied. COUNT I -BREACH OF CONTRACT 12. Defendant incorporates its responses to paragraphs I through 11 as though the same were set forth herein at length. 13. Denied in that after reasonable investigation the defendant is without sufficient information to form a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. It is further denied that CSI performed all of its obligations under the Agreement for reasons, including but not limited to, those stated in response to paragraphs I through II above. 14. Defendant incorporates its response to paragraph 9 as though it were set forth herein at length. The remaining averments are denied in that after reasonable investigation the defendant is without sufficient information to form a belief as to the truth of these averments and strict proofthereof is demanded at time of trial. 3 23650.1 ] 5. Denied as legal conclusions requiring no response. WHEREFORE, the defendant requests that judgment be entered in its favor and against the plaintiff, together with costs, fees, and such other and further relief as deemed just by this Court. COUNT 11- ACCOUNT STATED ] 6. Defendant incorporates its responses to paragraphs 1 through ] 5 as though the same were set forth herein at length. ] 7. Admitted the invoices attached to the complaint are addressed to defendant. All remaining averments are denied. ]8. Denied, including but limited to those reasons outlined in defendant's responses to paragraphs] through 15 above. ]9. Denied. To the contrary, Tri-Ax owes no further sums to CSI, but to the contrary is entitled to a refund for all sums paid because the product sold to it by CSI does not perform as required. WHEREFORE, the defendant requests that judgment he entered in its favor and against the plaintiff, together with costs, fees, and such other and further relief as deemed just by this Court. COUNT III - PROMISSORY ESTOPPEL 20. Defendant incorporates its responses to paragraphs ] through 19 as though the same were set forth herein at length. 4 23650.1 21. Denied. Tri-Ax agreed to pay for the product as represented and as provided for under its contract with CSI as set forth in its responses to the foregoing paragraphs. All remaining averments are denied. 22. Denied. To the contrary CSI has not performed all its contractual obligations, but instead is in breach of those obligations. Accordingly, the attached invoices are not proper. All remaining averments are denied as legal conclusions requiring no response. 23. Denied as legal conclusions requiring no response. 24. Denied in that after reasonable investigation the defendant is without sufficient infoffilation to form a belief as to the truth of these averments and strict proof thereof is demanded at time of triaL 25. Denied. To the contrary, Tri-Ax has not benefited at all by any of the product supplied by CSI. All remaining averments are denied as legal conclusions requiring no response. 26. Denied and denied as legal conclusions requiring no response. WHEREFORE, the defendant requests that judgment be entered in its favor and against the plaintiff, together with costs, fees, and such other and further relief as deemed just by this Court. NEW MATTER 27. Defendant incorporates its responses to paragraphs I through 26 as though the same were set forth herein at length. 5 23650_] 28. Plaintiff has failed to state any cause of action for breach of contract. 29. Plaintiff has failed to state any cause of action for an account stated. 30. Plaintiff cannot state any cause of action for an account stated since it cannot be shown that there was ever any acquiescence in the amount claimed by plaintiff. To the contrary, because of plaintiffs failure to deliver what was promised, the defendant demanded and is entitled to a refund of all amounts paid. 31. Plaintiff has failed to state any cause of action for promissory estoppel. 32. Plaintiff cannot state any cause of action for promissory estoppel since it cannot be shown that any promise was made by the defendant upon which the plaintiff could justifiably rely. 33. Plaintiff cannot state any cause of action for promissory estoppel since it cannot be shown that any reliance by plaintiff, which is expressly denied by defendant, was justifiable. 34. Plaintiff CalIDot state any cause of action for promissory estoppel since it cannot be shown that any injustice would result without the application of this doctrine. To the contrary, an injustice would result from any further payments by defendant due to plaintiffs breach of its agreement and misrepresentation of its product. 35. Plaintiff cannot recover on its claims as plaintiff failed to fulfill its obligations to provide a product as represented and as agreed to between the parties. 6 23650.1 36. Plaintiff cannot recover on its claim because plaintiff is in breach of its contract with defendant. COUNTERCLAIM 37. Defendant incorporates its responses to paragraphs I through 37 as though the same were set forth herein at length. 38. Prior to executing the Agreement, the defendant, through its authorized representatives, contacted CSI to demonstrate its CSI Road product. 39. Tri-Ax specifically was looking for a software product that could serve its business model and integrate its then current operations. In particular, and without limitation, Tri-Ax needed a system that could provide quotes and order entries, track orders, provide account ledgers, and manage truck maintenance. 40. Prior to executing the Agreement, CSI provided multiple demonstrations to Tri- Ax to demonstrate that the CSI Road system could meet all of Tri-Ax's stated needs. In fact, when the CSI product was demonstrated to Tri-Ax it was shown to be able to meet all of Tri-Ax's stated needs. 41. CSI specifically represents that its product can help logistics, trucking, supply chain, intermediary, or barge operations, and save time and money by automating dispatching, operations, and financial systems within a company. 7 23650.1 42. CSI further represented that its product was easy to use, is comprehensive, flexible, fast, and could be completely integrated with Windows 2000, is intemet ready, and immediately available for installation. 43. More specifically, the CSI Road module was represented to be able to include quotes and order entry, dispatching, freight billing, driver settlement, fuel and mileage, fleet maintenance, accounts receivable, accounts payable, payroll, general ledger, and safety and accident reporting. 44. The Agreement provided by CSI to Tn-Ax specifically represents that its product is useful in managing all aspects of the trucking, shipping and related industries, including its Motor Carriers software applications designated "CSI.Road". 45. The Agreement also provides that CSI possesses the capability to provide all necessary specialty design and technical support to enable Tri-Ax to install, utilize, customize and manage the CSI Road program, as well as to develop additional, related systems, and derivatives of existing programs. 46. Section 1.4 of the Agreement provides that the applications licensed to Tri-Ax covered Order Entry/Dispatching, freight Billing, Driver Settlement, Fuel and Mileage Reporting, and includes, accounts receivable/payable, and general ledger, all as contained in the CSI. Road product. 47. CSI specifically represented that its licensed material, I.e. CSLRoad, would perform generally as demonstrated. 8 23650.1 48. Shortly after signing the Agreement to purchase CSI product, a training session was scheduled by CSI at Tri-Ax's place of business. Training in fact did not occur on any system possessed by Tri-Ax, but rather the training provided was through CST's own network. 49. During "training", it became apparent to CST's representative that what was required was accessing after the fact the specific needs for Tri-Ax. At this time, CSI first informed Tri-Ax that specific product that Tri-Ax needed was not included with the product provided by CSI, including software demonstrated by CSI prior to signing the Agreement with Tri-Ax, but that this product would only be made available to Tri-Ax at additional extra cost. 50. The purchase price for the CSI.Road program under the Agreement, called a one- time licensing charge, was $46,500. 51. After "training" at Tri-Ax, CSI announced that Tri-Ax would have to spend more than another $30,000 to upgrade the product purchased to perform as expected. This was so, even though in prior demonstrations, CSI showed and represented toTri-Ax that its product could satisfy all of Tri-Ax's stated needs. 52. By February 2005, Tri-Ax was still unable to use the CSLRoad product and demanded a refund of its money from CSI. As of that time, the CSI product, despite representations to the contrary, could not access reports, or provide any general ledgers. Additional problems included an incomplete product, version problems, faulty 9 23650.1 installation/documentation materials, unsatisfactory support, including weak analysis ability, inconsistencies, and responsibility, and failure to follow methodology. 53. In response to complaints by Tri-Ax that the system purchased could not function at all, CSl sent a representative to Tri-Ax on or about May 16. 2005, to attempt to get the CSl.Road system to work. Despite these attempts, the CSl.Road system still could not be programmed to work at Tri-Ax. 54. To date, the CSl.Road program purchased by Tri-Ax has not been able to be used and as not processed even a single minute of Tri-Ax work. 55. In retrospect, it is clear that the product demonstrated to Tri-Ax to induce it to purchase the CSLRoad system was not the product supplied, despite many representations to the contrary. COUNT I - MISREPRESENTATION 56. Defendant incorporates its responses to paragraphs 1 through 55 as though the same were set forth herein at length. 57. At all times material hereto, and in particular prior to purchase by Tri-Ax of the CSLRoad product, CSI, through its officers and authorized representatives, misrepresented the nature, capacity, and ability of the CSl.Road program. Specifically, and without limitation, CSI demonstrated a product that it did not provide to Tri-Ax, and moreover, expressly represented to Tri-Ax that its product would do exactly what Tri-Ax indicated it needed the product to do. 10 23650.1 58. The various representations and demonstrations of the CSLRoad product by CSI as well as the written representations in the Agreement as aforesaid, to Tri-Ax were false. 59. The various representations and demonstrations of the CSLRoad product by CSI to Tri-Ax were made with the specific intent to induce Tri-A:~ to purchase the CSLRoad product. 60. In reliance upon the various representations and demonstrations by CSI to Tri-Ax, as above noted, Tri-Ax was induced to purchase the CSLRoad system as demonstrated and represented by CSL 61. Tri-Ax's reliance upon the various demonstrations and representations of the CSLRoad product as an inducement to purchase the CSLRoad system was justifiable. 62. As a result of CSI's various misrepresentations to Tri-Ax of the product sold, Tri- Ax has been financially harmed. Specifically, and without limitation, Tri-Ax has suffered the loss of its purchase money of approximately, $27,000 dollars. 63. As a result of CSI's misrepresentations, Tri-Ax is entitled to a full refund of all of its purchase money, as well as all other consequential damages resulting from the misrepresentation perpetrated by CSI upon Tri-Ax. WHEREFORE, the defendant/counterclaimant Laura Kopetsky Tri-Ax, Inc., respectfully requests that judgment be entered in its favor in the amount of $27,000, together with costs, interest, and fees, and for such other and further relief as is deemed just and appropriate by this Court. 11 23650.1 COUNT II - NEGLIGENT MISREPRl,SENTATION 64. Defendant incorporates its responses to paragraphs ] through 63 as though the same were set forth herein at length. 65. Alternatively, should it be determined that the VarIOUS representations and demonstrations made by CSI were not intentionally misrepresented, then Tri-Ax avers that the aforesaid representations and demonstrations were made under circumstances where CSI failed to exercise reasonable care andJor competence in making these various representations to Tri-Ax, such that these various representations and demonstrations were negligently made. 66. The various representations and demonstrations made by CSI as aforesaid, were material to the decision made by Tri-Ax to purchase the CSI.Road system. 67. As a result of the various misrepresentations made by CSI to Tri-Ax, Tri-Ax has been financially harmed. WHEREFORE, the defendant/counterclaimant Laura Kopetsky Tri-Ax, Inc., respectfully requests that judgment be entered in its favor in the amount of $27,000, together with costs, interest, and fees, and for such other and further relief as is deemed just and appropriate by this Court. COUNT III - BREACH OF CONTRACT 68. Defendant incorporates its responses to paragraphs] through 67 as though the same were set forth herein at length. 12 23650_1 69. The various actions, inactions, and misrepresentations by CST both under the Agreement and as otherwise stated, constitute breaches by CST under its Agreement with Tri-AJ{, 70. As a result of the various breaches made by CST to Tri-Ax, Tri-Ax has been financially hanned. WHEREFORE, the defendant/counterclaimant Laura Kopetsky Tri-Ax, Inc., respectfully requests that judgment be entered in its favor in the amount of $27,000, together with costs, interest, and fees, and for such other and further relief as is deemed just and appropriate by this Court. COUNT IV - BREACH OF W ARJRANTY 71. Defendant incorporates its responses to paragraphs 1 through 70 as though the same were set forth herein at length. 72. Under the Agreement, CST expressly warranted to CST that the Licensed Program materials, i.e. the CSLRoad program, would perform generally as demonstrated. 73. To date, despite numerous attempts by CST to make the CSLRoad program perfonn as warranted, the program does not function at all. 74. The resultant inability of the CST.Road program 1:0 perform as expressly warranted by CST to Tri-Ax constitutes a breach of warranty by CST. 75. As a result of the warranty breach made by CST to Tri-Ax, Tri-Ax has been financially harmed. 13 23650.1 WHEREFORE, the defendantlcounterclaimant Laura Kopetsky Tri-Ax, Inc., respectfully requests that judgment be entered in its favor in the amount of $27,000, together with costs, interest, and fees, and for such other and! further relief as is deemed just and appropriate by this Court. COUNT V - BREACH OF IMPLIED WARRANTY IMERCHANT ABILITY 76. Defendant incorporates its responses to paragraphs 1 through 75 as though the same were set forth herein at length. 77. Under the facts as above described, CSI impliedly warranted to Tri-Ax that its CSLRoad program was merchantable. 78. An implied warranty of merchantability was implied in the sale of the CSLRoad program by CSI to Tri-Ax as provided for under 13 Pa. C.S.A. S23l4. 79. CSI breached the implied warranty of merchantability for all those reasons stated aforesaid. 80. As a result ofCSI's breach of its implied warranty of merchantability, Tri-Ax has been financially harmed. WHEREFORE, the defendant/counterclaimant Laura Kopetsky Tri-Ax, Inc., respectfully requests that judgment be entered in its favor in the amount of $27,000, together with costs, interest, and fees, and for such other and further relief as is deemed just and appropriate by this Court. 14 23650.1 COUNT VI - BREACH OF IMPLIED W ARRANTYIFITNESS FOR A PARTICULAR PURPOSE 81. Defendant incorporates its responses to paragraphs I through 80 as though the same were set forth herein at length. 82. Under the facts as above described, CSI impliedly warranted to Tri-Ax that its CSI.Road program was fit for the particular purpose(s) described by Tri-Ax prior to agreeing to purchase the CSI.Road program. 83. An implied warranty that the CSI.Road program was fit for the particular purpose described by Tri-Ax was implied in the sale of the CSI.Road program by CSI to Tri-Ax as provided for under 13 Pa. C.S.A. s2315. 84. CSI breached the implied waJTanty of fitness for a particular purpose for all those reasons stated aforesaid. 85. As a result of CSI's breach of its implied warranty for a particular purpose, Tri- Ax has been financially harmed. WHEREFORE, the defendant/counterclaim ant Laura Kopetsky Tri-Ax, Inc., respectfully requests that judgment be entered in its favor in the amount of $27,000, together with costs, interest, and fees, and for such other and fiJrther relief as is deemed just and appropriate by this Court. 15 23650.1 Of Counsel: DATED: January 11, 2006 16 23650. ] Respectfully submitted, DILWORTH PAXSON LLP ~ Attorney LD. No. 37449 112 Market Street, 8th Floor Hanisburg, P A 17101 Tel.: (717) 236-4812 Fax: (717) 236-7811 David Brooks, Esq. BROOKS KOCH & SORG 615 Russell Avenue Indianapolis, IN 46225 Tel.: (317) 822-3700 Fax: (317) 822-3705 Attorneys for Defendant Laura Kopetsky Tri-Ax, Inc. JAN-11-2005 01 :30PM FROM-JUDV,JAN&KATHVITRI-AX +7805134 T-S12 P 002/002 F-552 VERIFICATION . Subject to the penalties for falsification to authorities prescribed by 18 Pa. e.s. 94904, 1 hereby certify that 1 am authorized to sign this verification on behalf of Laura Kopetsky Tri-Ax, Inc, and that the facts stated in the foregoing are true and correct to the best of my personal knowledge, information and belief. 1L~ ~-d . ,- ~_:t:' 2369lU RECEIVED TIME JAN. 11. 1: 23PM PRINT TIME JAN.11. 1 :24PM CERTIFICATE OF SERVICE I hereby certify that I have, this 11 In day of January 2006, served a true and correct copy of the foregoing document upon the following individuals via postage- prepaid United States mail addressed as follows: Todd J. Shill, Esq. James J. Jarecki, Esq. RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, P A 17108-1146 17 23650_1 .--) r ~- - ------ Todd J. Shill, Esquire Attorney LD. No. 69225 James J. Jarecki, Esquire Attorney LD. No. 89580 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW v. ; NO. :;;OS'- 5'171 LAURA KOPETSKY TRl-AX, INC., JURY TRIAL DEMANDED Defendant NOTICE TO PLEAD TO: Victor P. Stabile, Esquire Dilworth Paxson LLP 112 Market Street, 8th Floor Harrisburg, P A 1710 1 You are hereby notified to file a written response to the enclosed "New Matter" within twenty (20) days from service hereto or a judgment may be entered against you. RHOADS & SINON LLP By: Todd J. Shill James J. Jarecki One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. Todd J. Shill, Esquire Attorney J.D. No. 69225 James J. Jarecki, Esquire Attorney I.D. No. 89580 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Computer Support. Inc. COMPUTER SUPPORT, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW v. NO. LAURA KOPETSKY TRI-AX, INC., JURY TRIAL DEMANDED Defendant REPLY TO NEW MATTER AND ANSWER TO COUNTERCLAIM WTH NEW MATTER NOW COMES Plaintiff Computer Support, Inc. [hereinafter "CSI"], by its attorneys, Rhoads & Sinon LLP, and files the within Reply to New Matter and Answer to Counterclaim with New Matter as follows: 27-36. These Paragraphs contain conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 37. No responsive pleading required. 38. Admitted. 593695.1 39. Denied. CSI is without knowledge or information sufficient to form a belief as to the full extent of what Defendant was "looking for" and what Defendant "needed." Therefore, the averments of this Paragraph are specifically denied. 40. Admitted. 41. Admitted. 42. Admitted. 43. Denied. The specific modules purchased by Defendant are set forth on page one of the Agreement between the parties dated November 17, 2003. Said Agreement is a written document which speaks for itself. 44. Admitted. 45. Denied. The Agreement between the parties is a written document which speaks for itself. Therefore, the averments of this Paragraph are specifically denied. 46. Denied. The Agreement between the parties is a written document which speaks for itself. Therefore, the averments ofthis Paragraph are specifically denied. 47. Denied. The Agreement between the parties is a written document which speaks for itself. Therefore, the averments of this Paragraph are specifically denied. 48. Admitted. 49. Denied. The averments of this Paragraph are specifically denied. 50. Denied. The Agreement between the parties is a written document which speaks for itself. Therefore, the averments of this Paragraph are specifically denied. 51. Denied. The averments of this Paragraph are specifically denied. 52. Denied. The averments ofthis Paragraph are specifically denied. 53. Denied. The averments of this Paragraph are specifically denied. 54. Denied. The averments of this Paragraph are specifically denied. 55. Denied. The averments of this Paragraph are specifically denied. 56. No responsive pleading required. 57. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 58. Denied. The averments of this Paragraph are specifically denied. 59. Denied. The averments of this Paragraph are specifically denied. 60. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 61. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 62. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 63. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 64. No responsive pleading required. 65. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 66. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 67. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 68. No responsive pleading required. 69. Denied. This Paragraph contains conclusions of law to which no responsIVe pleading is required. To the extent a response is required, the averments are specifically denied. 70. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 71. No responsive pleading required. 72. Denied. The Agreement between the parties is a written document which speaks for itself. Therefore, the averments ofthis Paragraph are specifically denied. 73. Denied. The averments of this Paragraph are specifically denied. 74. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 75. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 76. No responsive pleading required. 77. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 78. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 79. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 80. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 81. No responsive pleading required. 82. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 83. Denied. This Paragraph contains conclusions of law to which no responsIVe pleading is required. To the extent a response is required, the averments are specifically denied. 84. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. 85. Denied. This Paragraph contains conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are specifically denied. NEW MATTER 86. The foregoing responding averments, as well as the averments contained III Plaintiffs previously filed Complaint, are incorporated herein as though set forth at length. 87. Defendant has failed to state any cause of action upon which relief may be granted. 88. Defendant requested the specific modules set forth on page one of the Agreement between the parties dated November 17, 2003. 89. CSI satisfied its obligations under the written Agreement between the parties and, therefore, did not breach said Agreement. 90. CSI did not make any misrepresentations, negligent or otherwise. 91. Defendant's Counterclaim should be dismissed based on the written Agreement between the parties. 92. CSLRoad performs/performed as demonstrated and represented by CSL 93. CSI trained Defendant to the best of its ability. 94. Defendant's own actions and inactions frustrated and disrupted the CSI training sessIOns. 95. Defendant's own actions and inactions interfered with the installation and launching of CSLRoad. 96. CSI did not breach the express or implied warranties to Defendant, if any. 97. Defendant and/or Defendant's agents voluntarily made the decision to purchase CSI's software. 98. Defendant was negligent in making the decision to purchase CSI's software. 99. Defendant has failed to inform CSI regarding the specific failures of the software system provided by CSL 100. Defendant's agents failed to fully inform Defendant regarding the benefits and limitations of the software system provided by CSL 101. Defendant's agents selected/rejected specific modules offered by CSI based on the agents' stated budget. WHEREFORE, Plaintiff Computer Support, Inc. respectfully requests that Defendant's Counterclaim be dismissed in its entirety, and demands judgment in its favor and against Defendant in the total amount of $61,721.35, together with interest, costs, reasonable attorneys' fees, and any other amount this Court deems just and proper. RHOADS & SINON LLP By: 8- ~ Todd J. Shill James J. Jarecki One South Market Square P. O. Box 1146 Harrisburg, P A 171 08-1146 (717) 233-5731 Attorneys for Computer Support, Inc. Dated: January 30, 2006 VERIFICATION Fred Nichols, deposes and says, subject to the penalties of 18 Pa. c.s. S 4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing Answer to Counterclaim are true and correct to the best of his knowledge, information and belief. ~ J &:?T1....._4,~ ~ Fred Nichols Date: 1/30/06 CERTIFICATE OF SERVICE I hereby certify that on this 30th day of January, 2006, a true and correct copy of the foregoing "Reply to New Matter and Answer to Counterclaim with New Matter" was served by means of United States mail, first class, postage prepaid, upon the following: Victor P. Stabile, Esquire Dilworth Paxson LLP 112 Market Street, 8th Floor Harrisburg, P A 17120 'fQjj~Jt ~. v\A.t~ o c ; r-> ,:':':1 C_::1 r.:!--' o -n ...... ::r:~ rnp -00' -rJl:? ( ,,~<:,} ;--~-1 :~~~~ '".J ~--.l ~10 '-< (- :.""., - ""~ ~ (,) ~~ 9 .r .. Todd J. Shill, Esquire Attorney J.D. No. 69225 Kelly H. Decker, Esquire Attorney J.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CSI CIVIL ACTION - LA W v. : NO. 05-5977 LAURA KOPETSKY TRI-AX, INC., JURY TRIAL DEMANDED Tri-Ax PLAINTIFF COMPUTER SUPPORT, INC.'S MOTION TO COMPEL DISCOVERY NOW COMES Plaintiff Computer Support, Inc. ("CSI") by and through its counsel Rhoads & Sinon LLP, and files the within Motion to Compel as follows: Baclmround 1. CSI instituted this action against Defendant Laura Kopetsky Tri-Ax, Inc. ("Tri- Ax") on or about November 17, 2005 by filing a Complaint. 2. CSI is a provider of computer software for the trucking industry. 3. Tri-Ax is engaged in the trucking business. In furtherance of its business, Tri-Ax entered into an Agreement with CSI to purchase a license for use of CSI' s computer software and for consulting support services, including customization ofCSI's software to Tri-Ax's specific business needs. 4. In accordance with the Licensing Agreement, CSI provided the license to Tn-Ax and provided consulting and support service to Tri-Ax at its written request. However, Tn-Ax 602275.1 . .. failed to pay CSI a portion ofthe license fees and failed to pay for consulting and support services, totaling $61,721.35. 5. In this action, Tri-Ax has asserted a counterclaim against CSI alleging that CSI's computer software does not perform to Tri-Ax's liking, and therefore, Tri-Ax has not used the software and that the software has "not processed even a single minute of [Tri-Ax's] work." Counterclaim, ~54. Discovery Issues 6. Pursuant to Pa. R. C. P. 4005 and Pa. R. C. P. 4009.1 et ~ on or about February 24,2006, CSI served Tri-Ax with Plaintiff's First Set of Interrogatories and Request for Production of Documents. A true and correct copy of Plaintiffs First Set of Interrogatories and Request for Production of Documents is attached hereto as Exhibit A. 7. Specifically, CSI served eight (8) interrogatories and twelve (12) request for production of documents on Tri-Ax which are narrowly tailored to focus on Tri-Ax's computer system and software applications, the specific subject matter ofthis lawsuit. 8. On or about March 27, 2006, Tri-Ax served Objections to CSI's First Set of Interrogatories and Request for Production of Documents. A true and correct copy of Tri-Axs' Objections are attached hereto as Exhibit B. 9. Notably, Tri-Ax only objected to one (1) interrogatory and three (3) request for production of documents. Tri-Ax's objections also included three (3) general objections. 10. Significantly, Tri-Ax did not provide any written responses to any ofCSI's discovery request to which Tri-Ax did not object nor did Tri-Ax produce any responsive documents. 2 . 11. Pursuant to local rule 208.2( d) and in an effort to resolve this matter without court intervention, on March 30, 2006, Kelly H. Decker, counsel for CSI, spoke to Victor Stabile, counsel for Tri-Ax, notifying Mr. Stabile that thirty (30) days had elapsed and requested responses to CSI's discovery requests. Mr. Stabile advised that written responses to interrogatories and document requests as well as documents would be forthcoming on or before April 13, 2006. Ms. Decker confirmed this in email correspondence, a copy of which is attached hereto as Exhibit C. 12. Again, in compliance oflocal rule 208.2(d), on April 25, 2006, the undersigned sent follow-up correspondence to Mr. Stabile asking when Tri-Ax's discovery responses would be forthcoming and informed Mr. Stabile that if discovery responses were not provided, CSI would be forced to file a motion to compel. A copy of this correspondence is attached as Exhibit D. 13. In response, Mr. Stabile corresponded that he was committed to having written responses by the close of the week, or April 28, 2006; Mr. Stabile further advised me that he did not concur in CSI's motion to compel. A copy of Mr. Stabile's correspondence is attached as Exhibit E. 14. The undersigned granted Tri-Ax's request for an extension through April 28, 2006. A copy of Ms. Decker's correspondence is attached as Exhibit F. 15. On May 1,2006, Mr. Stabile verbally informed the undersigned that Dilworth Paxson LLP's firm-wide computer system was not working and that written discovery responses would be served the following day, on May 2, 2006. 16. As of this date, Tri-Ax has not provided answers to CSI's First Set of Interrogatories and Request for Production of Documents or any documents in response thereto. 3 . ~ 17. For the reasons argued in this Motion to Compel, Tri-Ax's objections are without merit and Tri-Ax must produce written answers to CSI's discovery requests, together with responsive documents as requested in this Motion. Tri-Ax's Obiections to Interroeatorv Number 8 18. Tri-Ax's objections to Interrogatory number 8 are entirely without merit. Specifically, Tri-Ax's objections are as follows: 8. Please provide the following information with respect to your cornputer systern: (a) the layout and structure of your cornputer systern, including the number and types of computers and the types of operating systems and application software packages used (provide the software maker, prograrn name, and version for each software package; (b) the structure of any e-mail system, including software used, the number of users, the location of e-mail files, and password usage; (c) the structure of any network, including the configuration of network servers and workstations, and the brand and version number ofthe network operating system in use; (d) software applications used for things sqch as calendars, project managernent, accounting, word processing, and database management, including industry-specific programs, proprietary programs, encryption software, and utility programs (provide the installation date for each software package); ( e) the personnel responsible for the ongoing operation, maintenance, expansion, and upkeep of the network; (f) the personnel responsible for administering the e-rnail systern; (g) the personnel responsible for maintenance of computer- generated records and the manner in which such records are organized and accessed; (h) backup procedures used on all computer systems, including a description of all devices (e.g., tape drives) and software used to create backups, the personnel responsible for conducting the backups, what information is backed up; backup schedules, and tape rotation schedules; (i) the process for archiving and retrieving backup rnedia both on and off site; 4 ~ ... (j) the procedure used by system users to log on to cornputers and into the network, including the use of passwords, logs, audit trails, and other security measures used to identify data created, modified, or otherwise accessed by particular users; (k) whether and how access to particular files is controlled; and (1) routines for archiving and purging electronic data. ANSWER: 8. Tri-Ax objects to Interrogatory #8 as follows: b. objection based upon relevancy. Structure of e-mail is not relevant to the claims asserted; d) objection to the extent this interrogatory seeks propriety and security information; h) backup procedures and backed-up information is not relevant to the claims asserted in this case; i) objection based upon relevancy; j) objection based upon relevancy. The information is proprietary and concerns company security not relevant to the claims asserted; I) objection based upon relevancy. Tri-Ax's Relevancv Obiection is Without Merit 19. In Pennsylvania, "[ t ]he purpose of the Pennsylvania discovery rules is to prevent surprise and unfairness and to allow a fair trial on the merits." Dominick v. Hanson, 2000 PA Super. 158, 753 A.2d 824,826 (pa. Super. Ct. 2000). To that end, Pa.R.C.P. 4003.1 provides that "as a general rule, discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried." Pa.R.C.P. 4003.1; see also George v. Schirra, 2002 PA Super. 395, 814 A.2d 202,204 (pa. Super. Ct. 2002). 20. In determining whether a discovery request seeks relevant information, the term "relevant" has greater breadth and flexibility than it does for purposes of admissibility at trial. George, 814 A.2d at 204-206 (holding that although the documents requested "may not ultimately be admissible at trial or may not prove germane to the matters that will be litigated, 5 , we believe the relevancy standard applicable to discovery matters has been met."). The party objecting to the discovery generally bears the burden of establishing that the requested information or documents are not relevant or discoverable. Y adouga v. Cruciana. 66 Pa.D&C.4th 164, 167-168,2004 Pa. D.&C. LEXIS 31 (C.P. Lackawanna 2004). 21. Any doubts regarding relevancy are to be resolved in favor of allowing discovery and if there is any conceivable basis upon which a discovery request may be relevant, a motion to compel such discovery should be granted. Id. at 168 citing Davis v. Staroska, 62 D&C.4th 76, 80,2002 WL 32173081 (C.P. Northampton 2002); Klovenskv v. Moore, 57 D&C.4th 370,373. 2002 WL31932483 (C.P. Franklin 2002). 22. Here, the information sought be CSI is certainly relevant to the subject ofthis lawsuit. CSI sold a license for its computer software to Tri-Ax. CSI made modifications to the software at Tri-Ax's request. The License Agreement was signed on or about October 8, 2004, and from November through June of2005, CSI provided extensive support services to customize the software to Tri-Ax's need~. Nevertheless, Tri-Ax claims that it did not use the software because the software did not perform as Tri-Ax had expected. It is not clear whether Tri-Ax has, in fact, used CSI's software to its benefit, whether Tri-Ax tampered with it in such a way to render the software unusable, or whether Tri-Ax is using another company's software. In fact, it is quite possible that Tri-Ax is still using CSI's software. 23. Furthermore, it is possible that Tri-Ax's dissatisfaction with CSI's software is as a result of misrepresentations made by Tri-Ax to CSI with regard to what Tri-Ax needed its software package to do and what Tri-Ax's existing computer system required. 6 .. 24. In light ofthe counterclaim and defenses asserted by Tri-Ax, CSI is entitled to the requested information relating to the software installed on Tri-Ax's for the limited period oftime set forth in its discovery requests. 25. For example, the structure of any e-mail system, including software used, the number of users, location of e-mail files and password usage is relevant for a number of reasons, including but not limited to, determining the type of software used by Tri-Ax and its bearing on the CSI software, whether there is correspondence that is not otherwise printed in hard copy relating to Tri-Ax's use ofCSI's software, the extent to which Tn-Ax is using CSI's software and whether CSI is currently using either a portion of or a combination of CSI' s software as well as another software package. (Interrogatory 8(b)). 26. The back-up procedures used on all computer systems, including a description of all devices (e.g. tapes drives) and software used to create backups, the personnel responsible for conducting the backups, what information is backed up; backup schedules, and tape rotation schedules (Interrogatory 8(h)) as well as the process of archiving and retrieving backup media both on and off site (Interrogatory 8(i)) are all relevant because the backup information will provide CSI with a road map of where Tn-Ax stores the information on its computer system and a true picture of whether Tri-Ax actually used and is continuing to use CSI's software, which Tri-Ax is refusing to pay for. Further, CSI's requests will also establish whether Tri-Ax is using another type of software in lieu of CSI' s software.. The information retrieved with respect to Tri-Ax's backup procedures will aid in CSI's subsequent document requests. The back-up information will also provide CSI with the necessary information of whether Tri-Ax reverse engineered CSI's software. 7 .. 27. The procedure used by system users to log on to computers and into the network, including the use of passwords, logs, audit trails, and other security measures used to identify data created, modified, or otherwise accessed by particular users is relevant because this information will show whether people at Tri-Ax were using or modifying the software. (Interrogatory 8(j)). 28. Routines for archiving and purging electronic data (Interrogatory 8(L)) is certainly relevant because it will explain Tri-Ax's procedures are for maintaining electronic data. If electronic data has been archived or purged in contravention ofthis policy, it may warrant a spoliation of evidence claim. Proprietary Obiections 29. Tri-Ax claims that some of the information sought is proprietary and constitutes "security information" and therefore will not be produced. 30. Tri-Ax has not sought a protective order specifically itemizing the proprietary nature of the information sought. 31. Moreover, CSI has informed Tri-Ax's counsel that if necessary, CSI will enter into a confidentiality agreement to alleviate Tri-Ax's concerns about the alleged proprietary information. Obiections to Requests for Production of Documents 8.10 and 11 32. With respect to requests for production of documents 8, 10 and 11, Tri-Ax objects as follows: 8. Since the filing of the Cornplaint on Novernber 17, 2005, if any documents have been destroyed, please state which electronic files have been deleted and the dates of such destruction. Response: 8 8. Objection. The request is overly broad and not relevant to the claims asserted in this case. * * * 10. Copies of any and all software installed or used on your personnel cornputers during the period from October 2004 to the present, including all titles and version numbers and authors and contact information for the authors of custorn or custornized software. Response: 10. Objection. Production of copies of software is proprietary and violates end user license agreements. The request is further objected to as overly broad and burdensome. * * * 11. The rnost recent full or partial cornputer systern back-up completed prior to the filing of the Cornplaint on Novernber 17,2005. Response: 11. Objection. This request is not relevant, and further, production of an entire back-up would violate laws relating to confidentiality of employee personnel records, medical information, wage information, and proprietary software programs. The request as stated is further objected to as overly broad. 33. With respect to Request Number 8, CSI's request as to whether Tri-Ax has destroyed any documents since the filing ofthis Complaint and the date of destruction is relevant because Tri-Ax has a general duty to preserve relevant evidence where: (1) it knows that litigation against it is pending; and (2) it is foreseeable that discarding the evidence would be detrimental to the Plaintiff See Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division. et ai, 2001 PA Super. 232, 781 A.2d 1263, 1272 (pa. Super. 2001). Here, the information requested by CSI is certainly relevant since litigation was pending and any computer generated files discarded could forseeably be detrimental to CSI's claims. 34. Request Number 10 seeks information concerning all software installed or used on Tri-Ax's personnel computers during the period from October 2004 to the present, including 9 all titles and version numbers and authors and contact information for the authors of custom or customized software. This information is certainly relevant. CSI entered into the licensing agreement with Tri-Ax in October 2004. CSI wants to know what software was installed on Tri- Ax's computers and whether CSI is using another type of software to track its business. It is possible that Tri-Ax has, in fact, been using CSI's software. Ifit is not, Tri-Ax should be forthcoming as to the usage of another company's trucking software. 35. As explained in more detail in paragraph 22 above, Request Number 11 seeks the most recent backup prior to the filing of the Complaint so that CSI can compare those files on Tri-Ax's computer system prior to the filing ofthe complaint, a relevant time period, since the facts alleged in the complaint relate to the time period from October 2004 to November 17,2005 when the complaint was filed. Backup tapes will allow CSI to determine why the software is not working, what files or parts of the software have been deleted which may have an impact on the ability of Tri-Ax to use the software. 36. Again, Tri-Ax's concerns regarding confidentiality and proprietary information are allayed by because CSI has offered to enter into a confidentiality agreement with Tri-Ax. 37. Pa. R. C. P. 4019 (a) (1) (i) states that a court may, on motion, make an appropriate order if a party fails to answer written interrogatories submitted pursuant to Pa. R. C. P.4005. 38. A failure to act described in subdivision Pa.R.C.P. 4019(a)(1) may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order. Pa.R.C.P.4019(a)(2). 39. Tri-Ax has not made an appropriate objection nor has Tri-Ax applied for a protective order. 10 40. Accordingly, CSI's motion to compel must be granted. WHEREFORE, CSI respectfully requests the Court enter an Order requiring the Tri-Ax within ten (10) days from date of the Order to answer CSI's First Set of Interrogatories and Request for Production of Documents. CSI also respectfully requests that ifTri-Ax fails to answer CSI's First Set of Interrogatories and Request for Production of Documents within ten (10) day, sanctions be awarded to CSI. RHOADS & SINON LLP By: ~ 1-/. Ou.u.... Todd J. Shi . Kelly H. D er One South Market Square P.O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Dated: May 5, 2006 Attorneys for Plaintiff Computer Support, Inc. 11 CERTIFICATE OF SERVICE I hereby certify that on this 5th day of May, 2006, the foregoing "CSI Computer Support, Inc.'s Motion to Compel" was served by means of United States mail, first class, postage prepaid, upon the following: VICTORP. STABILE, ESQ. DILWORTH PAXSON, LLP 112 MARKET ST., 8TH FLOOR HARRISBURG, PA 17101 ~D&J-Y'~ Kelly H. Dec e 12 Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PAl 71 08-1146 (717) 233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INC., Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. : NO. 05-5977 LAURA KOPETSKY TRI-AX, INC., : JURY TRIAL DEMANDED Defendant PLAINTIFF'S FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS TO: LAURA KOPETSKY TRI-AX. INC. C/O VICTORP. STABILE, ESQ. DILWORTH PAXSON, LLP 112 MARKET ST., 8TI1 FLOOR HARRISBURG, PA 17101 PLEASE TAKE NOTICE that you are hereby required, pursuant to Pennsylvania Rules of Civil Procedure Nos. 4001. et seq., to serve upon the undersigned a copy of your answers and objections, if any, in writing and under oath, to the following Interrogatories within thirty (30) days after service hereof. The answers shall be inserted in the spaces provided. If there is insufficient space to answer an Interrogatory, the remainder of the answer shall follow on a supplemental sheet. These Interrogatories shall be deemed to be continuing. If between the time of filing your answers and the time of trial of this matter, you, or anyone acting on your behalf, learn of any further information not contained in your answers, or if you learn that any information set fo 597350.1 answers is or has become inaccurate or incorrect, you shall promptly file and serve supplemental answers. Also pursuant to Pennsylvania Rules of Civil Procedure Nos. 4001 et ~., you are hereby required to produce for inspection, examination, and copying, all documents responsive to the following Requests for Production not later than thirty (30) days after service of these Requests. These Requests shall be continuing. If, between the time of producing such documents and the trial of this matter, you or anyone acting on your behalf learn of additional documents responsive to these Requests, you shall produce such documents by supplemental response. DEFINITIONS AND INSTRUCTIONS The following definitions and instructions are applicable to these Interrogatories and Requests for Production: (1) Definitions. (a) "You" or "Your" shall mean the Defendant in the above-captioned litigation. (b) "Document" shall mean any written, handwritten, printed, typed, or other graphic matter of any kind or nature, however produced, reproduced, or copied, including data compilations, e-mail, and all other electronically stored data, however stored (including data files stored inion office desktop computers/workstations, notebook/laptop computers, home computers, staff computers, palmtop devices or electronic organizers/secretaries, and network file servers/mini-computers; backup tapes including system-wide backups, disaster recovery backups, and personal or "ad hoc" backups; and other media sources including tape archives, replaced/removed drives, floppy diskettes, CD-ROMs, -2- DVDs, zip cartridges, and other portable media), photographs, microfihns, video and audio tapes, and any other data compilations from which information can be obtained. (c) "Identify" or "Identity" means when used in reference to -- (1) A natural person, his or her: (i) full name; and (ii) present or last known residence and employment address (including street name and number, city or town, and state or county); (2) A document: (i) its description (e.g., letter, memorandum, report, etc.), title, and date; (ii) its subject matter; (iii) its author's identity; (iv) its addressee's identity; (v) its present location; and (vi) its custodian's identity; (3) An oral communication: (i) its date; (ii) the place where it occurred; (iii) its substance; (iv) the identity of the person who made the communication; (v) the identity of each person to whom such communication was made; and - 3 - (vi) the identity of each person who was present when such communication was made; (4) A corporate entity: (i) its full corporate name; (ii) its date and place of incorporation, iflmown; and (iii) its present address and telephone number; (5) any other context: a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, and the identification of relevant people, entities, and documents. (2) Claim of privilege. With respect to any claim of privilege or immunity from discovery, you must identify the privilege or immunity asserted and provide sufficient information to substantiate the claim. (3) Dotion to produce documents. In lieu of identifying documents in response to these Interrogatories, you may provide copies of such documents with appropriate references to the corresponding Interrogatories. -4- INTERROGATORIES 1. Identify each person whom you intend to call as a fact witness at trial. With respect to each person identified, state what you intend to prove by his or her testimony. ANSWER: - 5 - 2. Identify each person whom you intend to call as an expert witness at trial. With respect to each person identified, state: (1) the subject matter on which he or she is expected to testify; (2) the substance of the facts and opinions to which he or she is expected to testify; (3) a summary of the grounds for each opinion; and (4) whether he or she created a report relating to this matter. ANSWER: - 6 - 3. Identify all exhibits that you intend to use at trial. ANSWER: - 7 - 4. Identify every individual who provided information to you for the purposes of answering these Interrogatories. ANSWER: - 8 - 5. Identify every individual, whether or not compensated by you, who provided an opinion regarding the value, quality, fitness, and/or working condition of Plaintiffs software. For each individual, explain in detail the opinion provided. ANSWER: -9- 6. Provide a detailed, specific, itemized breakdown of any and all damages and lost profits alleged in your Counterclaims. ANSWER: - 10- 8. Please provide the following information with respect to your computer system: (a) the layout and structure of your computer system, including the number and types of computers and the types of operating systems and application software packages used (provide the software maker, program name, and version for each software package; (b) the structure of any e-mail system, including software used, the number of users, the location of e-mail files, and password usage; ( c) the structure of any network, including the configuration of network servers and workstations, and the brand and version number of the network operating system in use; (d) software applications used for things such as calendars, project management, accounting, word processing, and database management, including industry- specific programs, proprietary programs, encryption software, and utility programs (provide the installation date for each software package); (e) the personnel responsible for the ongoing operation, maintenance, expansion, and upkeep of the network; (f) the personnel responsible for administering the e-mail system; (g) the personnel responsible for maintenance of computer-generated records and the manner in which such records are organized and accessed; (h) backup procedures used on all computer systems, including a description of all devices (e.g., tape drives) and software used to create backups, the personnel responsible for conducting the backups, what information is backed up; backup schedules, and tape rotation schedules; (i) the process for archiving and retrieving backup media both on and off site; (j) the procedure used by system users to log on to computers and into the network, including the use of passwords, logs, audit trails, and other security measures used to identify data created, modified, or otherwise accessed by particular users; (k) whether and how access to particular files is controlled; and (1) routines for archiving and purging electronic data. ANSWER: - 11 - REQUESTS FOR PRODUCTION 1. Any and all documents (as defined above) which evidence, reference, relate to, pertain to, or support the allegations in your Answer, New Matter and Counterclaims. 2. Any and all proposals, agreements, licenses, and other documents (as defined above) which evidence, reference, relate to, pertain to, or state an agreement between the parties with respect to software, charges, fees, or invoices. 3. Any and all documents (as defined above) which evidence, reference, relate to, pertain to, or state your requests for, receipt of, acceptance of, or rejection of, software provided by Plaintiff. 4. Any and all documents (as defined above) which evidence, reference, relate to, pertain to, or state the amount of any charges or fees you agreed to pay Plaintiff for software. 5. Any and all documents (as defined above) which evidence, reference, relate to, or pertain to software purchased to replace the software provided by Plaintiff, including documents concerning your inquiries, requests, purchases, and payments for such replacement software. 6. Copies of any and all accounts payable or other business records which evidence, reference, relate to, or pertain to the history of the transaction between the parties and any amounts owed to Plaintiff. 7. Copies of any and all written policies for the retention and destruction of documents, including but not limited to, business records. 8. Since the filing of the Complaint on November 17, 2005, if any documents have been destroyed, please state which electronic files have been deleted and the dates of such destruction. 9. Copies of any and all lists of personnel (names and titles) for all personnel involved with your information technology or information services. 10. Copies of any and all software installed or used on your personnel computers during the period from October 2004 to the present, including all titles and version numbers and authors and contact information for the authors of custom or customized software. 11. The most recent full or partial computer system back-up completed prior to the filing of the Complaint on November 17,2005. - 12- 12. Any and all documents, including but not limited to, purchase orders, invoices, receipts and licensing agreements, reflecting your purchase of "CSI.Road", including any and all databases and/or other electronic data compilations related thereto or that run off of or in tandem with this program. RHOADS & SINON LLP By: ~ Todd J. Shill One South Market Square P.O. Box 1146 Harrisburg, PAl 71 08-1146 (717) 233-5731 ATTORNEYSFORPLAINT~F ... - 13- CERTIFICATE OF SERVICE I hereby certify that on this 24th day of February, 2006, the foregoing "Plaintiffs First Set of Interrogatories and Request for Production of Documents" was served by means of United States mail, first class, postage prepaid, upon the following: VICTORP. STABILE, ESQ. DILWORTH PAXSON, LLP 112 MARKET ST., 8lH FLOOR HARRISBURG, P A 17101 ~~ ct., ~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA COMPUTER SUPPORT, INC., Plaintiff CIVIL ACTION - LAW v. NO. 05-5977 LAURA KOPETSKY TRI-AX, INC., Defendant DEFENDANT'S OBJECTIONS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS AND NOW, comes the defendant Laura Kopetsky Tri-Ax, Inc. ("Kopetsky") and files the following objections to the plaintiffs first set of interrogatories and request for production of documents as follows: I. INTERROGATORIES AND REQUEST FOR PRODUCTION A. General Objections 1. Defendant objects to supplementing its answers to the extent the instructions go beyond those obligations imposed under applicable rules of civil procedure. 2. Defendant objects to the definitions of "Identify" of "Identity" as being overly broad, vague and burdensome. Responses will be provided so that reasonable identification information is identified. 23878_1 . 3. Defendant objects to the extent any responses seek information beyond the scope of permissible discovery, or seek information subject to privilege. B. Specific Objections to Interrogatories 1. Defendant objects to Interrogatory #8 as follows: b. objection based upon relevancy. Structure of e-mail is not relevant to the claims asserted; d) objection to the extent this interrogatory seeks propriety and security information; h) backup procedures and backed-up information is not relevant to the claims asserted in this case; i) objection based upon relevcmcy; j) objection based upon relevancy. The information is proprietary and concerns company security not relevant to the claims asserted; I) objection based upon relevancy. C. Specific Objections to Request for Production. 8. Objection. The request is overly broad and not relevant to the claims asserted in this case. 23878_1 . 10. Objection. Production of copies of software is proprietary and violates end user license agreements. The request is further objected to as overly broad and burdensome. 11. Objection. This request is not relevant, and further, production of an entire back-up would violate laws relating to confidentiality of employee personnel records, medical information, wage information, and proprietary software programs. The request as stated is further objected to as overly broad. Respectfully submitted, DILWORTHPAXSONLLP lctor P. St . , Attorney J.D. No. 37449 112 Market Street, 8th Floor Harrisburg, PAl 71 0 1 Tel.: (717) 236-4812 Fax: (717) 236-7811 Of Counsel: David Brooks, Esq. BROOKS KOCH & SORG 615 Russell Avenue Indianapolis, IN 46225 Tel.: (317) 822-3700 Fax: (317) 822-3705 Attorneys for Defendant Laura Kopetsky Tri-Ax, Inc. DATED: March 27,2006 23878_1 ,. CERTIFICATE OF SERVICE I hereby certify that I have, this 27th day of March 2006, served a true and correct copy of the foregoing document upon the following individuals via postage-prepaid United States mail addressed as follows: Todd J. Shill, Esq. James J. Jarecki, Esq. RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PAl 71 08-1146 Document2 . . Kelly H. DeckerlRandS 03/30/200603:38 PM To stabilvp@dilworthlaw.com cc bee Todd J ShilllRandS@RandS Subject Computer Support Inc. v. Laura Kopetsky Tri-Ax, Inc. Vic- Just confirming our telephone conversation that you will be providing written responses to CSI's interrogatories and document requests as well as documents on or before April 13th. As I explained, if necessary, CSI can enter into a confidentiality agreement with your client to address your client's concerns about disclosure of proprietary information. Thanks. Kelly Kelly H. Decker, Esq. RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 237-6735 (direct) (717) 231-6600 (fax) kdecker@rhoads-sinon.com www.rhoads-sinon.com . . Kelly H. Decker/RandS 04/25/2006 01 :30 PM To "Stabile, Victor P." <vstabile@dilworthlaw.com> cc bee Subject RE: Computer Support Inc. v. Laura Kopetsky Tri-Ax, Inc.~ Vic- When we last spoke. you agreed to provide written discovery responses by April 13th. Almost 2 weeks have gone by and we have not received any responses or documents from your client. Our client is anxious to move this case forward and has directed us to file a motion to compel discovery. Under Cumberland County Local rules, I must seek your concurrence in our motion. I presume you do not concur in this motion and will represent that to the court. However, if you do concur, please let me know. Thank you. Kelly Kelly H. Decker, Esq. RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 237-6735 (direct) (717) 231-6600 (fax) kdecker@rhoads-sinon.com www.rhoads-sinon.com . . a...i ., "Stabile, Victor P." <vstabile@dilworthlaw.com> 04/25/200602:19 PM To <KDecker@rhoads-sinon.com> cc bee Subject RE: Computer Support Inc. v. Laura Kopetsky Tri-Ax, Inc. Kelly: I am committed to having responses by close of this week. The problem I am having is that the person knowledgeable about your requests is a company consultant who is not employed by my client. I have been attempting to coordinate with that person to provide your answers. I obviously have no control over this consultant. If you want me to answer your questions w/o this person I can do that, but I do not think you will find the responses valuable. No, I do not concur in your motion, and by this mail am requesting additional time to respond under the circumstances. This will be my response to the court. Please advise. . . Kelly H. Decker/RandS 04/25/2006 02:45 PM To "Stabile, Victor P." <vstabile@dilworthlaw.com> cc bee Todd J ShilllRandS@RandS Subject RE: Computer Support Inc. v. Laura Kopetsky Tri-Ax, Inc.~ Vic- Your request for an extension through the end of this week is granted. Kelly Kelly H. Decker, Esq. RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 237-6735 (direct) (717) 231-6600 (fax) kdecker@rhoads-sinon.com www.rhoads-sinon.com (") c:: ~ va: mn'. '"',7 '~-: -- --< 6;:: -< r' <:-<'- >..~ .z'.....;. <;;;:t.. Joo"C -:;;0- ~ .. ~ c::::. = c::J"' :x >- -< I en o " ~:n ",,?r- -0 b '-'IU ~"r' -r", ::~-rl ;'-'0 Zm o ..-l 5; "'< >- ::z: co w +- COMPUTER SUPPORT, INC., CSI V. : IN COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LAURA KOPETSKY TRI-AX, INC. TRI-AX NO. 05-5977 JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this 10th day of May, 2006, upon consideration of Plaintiff's Motion to Compel Discovery, IT IS HEREBY ORDERED AND DIRECTED that a Rule shall issue upon the Defendant to show cause why the relief requested by Plaintiff should not be granted. 1. The defendant will file an answer to this petition by May 30, 2006; 2. A copy of said answer will be filed with this Court; IT IS FURTHER ORDERED AND DIRECTED that counsel for the parties shall appear for a discovery conference before this Court on Monday, July 31, 2006, at 1 :30 p.m. in the Jury Deliberation Room of Courtroom No.5 in the Cumberland County Courthouse at which time the Motion and Answer will be reviewed and completion of discovery will be finalized. By the Court, M'~~'~~J T.9dd J. Shill, Esquire vKelly H. Decker, Esquire Attorneys for Plaintiff ~ v4/ctor P. Stabile, Esquire Attorney for Defendant bas VINVAlASNN3d AlNno:,1 n\fl'litfj8INno o ~ :8 UV "^ YU 900l Al:N10NOH10cd 31-U .::10 3~)H:lO'031fj (). IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA COMPUTER SUPPORT, INC., Plaintiff CIVIL ACTION - LAW v. NO. 05-5977 LAURA KOPETSKY TRI-AX, INC., Defendant DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL DISCOVERY AND NOW, comes the defendant Laura Kopetsky Tri-Ax, Inc. ("Tri-Ax" or "Kopetsky") and files the following response to the plaintiff s motion to compel discovery as follows: 1. Admitted. 2. Admitted on information and belief. 3. Admitted Tri-Ax is engaged in at least the trucking business and that an agreement was signed between the parties. Other averments are denied as the agreement is a document that speaks for itself. 4. Denied. CSI failed to perform or provide any services that were of any use to Tri- Ax. Remaining averments are denied as legal conclusions requiring no response. 5. Admitted. By further response the counterclaim speaks for itself. 24038_1 ~ 6. through 16. No further answer is required, as Tri-Ax has now provided answers to both the plaintiffs request for production and interrogatories. A copy of those responses is attached hereto as Exhibit "A". Objections to Interrogatory 8 18. Denied the objections are without merit. Admitted the interrogatory and objections are as stated. 19. through 28. The purported averments of these paragraphs are in effect a brief in paragraph form. Accordingly, Tri-Ax is unable to respond to them in the manner of a pleading. In lieu thereof, Tri-Ax responds to these paragraphs as follows: The essence of the plaintiff s complaint is that it sold a software system to the defendant that it wants to be paid for providing. The essence of Tri-Ax's defense and counterclaim is that the system purchased did not and has not performed at all, and that it is entitled to a refund of any money paid to CSI. CSI had made numerous trips and dialogue to and with Tri-Ax and was able to see for itself that the software provided did not work. The plaintiff now seeks very broad discovery of every aspect of plaintiff s business and software systems, despite its ample opportunity while selling and attempting to install the software sold, to examine the defendant's systems. CSI disingenuously now claims it has to examine Tri-Ax's systems to determine ifits software was used when it has known from its many attempts to install the software that the software was not capable of performing. While CSI posits this and the unsubstantiated claim that it wants to see if the defendant has now reverse engineered CSI's worthless software, the 24038_1 " defendant is concerned that CSI through access to Tri-Ax's systems in the course of this dispute may mimic or copy processes or software that Tri-Ax uses in order for CSI to improve its own product. CSI purports to sell software to service the industry in which Tri-Ax conducts business. It certainly would be to CSI's unfair advantage to benefit from examining Tri-Ax's systems to improve its own substandard product. CSI should not be allowed to rifle through all ofTri-Ax's systems under the guise of its lawsuit. Further, nowhere in CSI's complaint or its defense to Tri-Ax's counterclaim is the assertion that CSI is entitled to be paid because CSI's software has been in fact used or reverse engineered. To the extent discovery sought seeks to bear out these unsubstantiated claims, the discovery would is irrelevant. Notwithstanding the above, and subject to reservation of objections already made to this interrogatory, Tri-Ax has provided answers to interrogatory #8(b), (d), (h), (i), (j), and (1), in a an attempt to reasonably comply with the plaintiffs requests and without compromising its own business. Plaintiff s motion to compel further answer to these interrogatories would thus seem moot. Proprietary Objections 29. Denied. Tri-Ax's objections and their full text speak for themselves. 30. Admitted, since one is not necessary. Pa. R.C.P. 4019(a)(2), as plaintiff correctly notes, requires that an answering party serve answers to discovery, unless the party responding has filed an appropriate objection or has filed for a protective order. Tri- Ax's has filed appropriate objections and thus, does not need to request a protective 24038_1 order. If the plaintiff disagrees, a motion to compel is appropriate which is in fact the procedure now being pursued by the plaintiff. 31. Admitted some discussion has occurred, but no specific proposal has been set forth. Instead, the instant motion was filed. Objections to Production Requests 8, 10, and 11 32. Admitted. 33. The defendant's objection to production request 8 is appropriate. The plaintiffs definition of "document" at p.2 of its discovery request (Motion at Ex. A) is as broad and all encompassing as one could possibly imagine. Nonetheless, the plaintiff expects Tri- Ax to identify every electronic file that may have been deleted since November 17, 2005, without limitation as to relevancy or type of file. This very well could include an e-mail deleted by any user in the ordinary course of business. By way of response, however, the defendant has responded to interrogatory 8(h) and (1) (as opposed to production 8) that regular nightly backups are performed, and that disk space is not at a premium and data is not currently routinely purged. Pa. R.C.P. 4011(b) and (c) prohibit discovery that would cause unreasonable annoyance, oppression, burden or expense, or would require the making of an unreasonable investigation by a party. Compelling production 8 as stated would violate this rule. 34. Ironically, while CSI makes an incredible fuss over its unsubstantiated allegation or concern that Tri-Ax may be improperly using its licensed software, it nonetheless under production request 10 seeks copies, not simply identification, of all of Tri-Ax's 24038_1 software used on Tri-Ax's system since October 2004. Nonetheless, identification of software has already been provided in response to Interrogatory 8. The software utilized by Tri-Ax, like the software sold by CSI, is licensed and the making of copies is strictly prohibited. The fact of software licensure is so much common knowledge at this time that courts may take judicial notice of it. In essence, the plaintiff is seeking an order from the court to compel Tri-Ax to perform illegal acts by copying its licensed software to provide copies to CSI. CSI can purchase copies now that the software has been identified to it. The request also is burdensome since no justification has been shown for the burdensome need to produce a mirror copy of Tri-Ax's entire computer system. The objection is appropriate. 35. By way of response, Tri-Ax incorporates its response to paragraph 34, as though it were set forth at length and made applicable to production request 11 to the extent CSI seeks production of Tri-Ax's system. CSI further offers a rationale that it needs an entire backup of Tri-Ax's system to determine why its software did not work on the defendant's system. CSI had months of opportunity while it was attempting to correct and install Tri-Ax's system to determine why its software did not work on Tri-Ax's system until it walked away from Tri-Ax. Data without copies of software or programs will not provide the information Tri-Ax seeks to determine why the system did not work. If software or programs are produced Tn-Ax will violate license restrictions. This request is simply an attempt to secure proprietary information from Tri-Ax to further CSI's own business purpose. 24038_1 Significantly, CSI's motion to compel does not even attempt to address the illegality of its request, either from the standpoint of violating license agreements, or from violating the privacy rights of employees to personnel and health information. The request as stated must be denied. 36. Denied. No terms of confidentiality have been proposed, nor can confidentiality resolve the illegal nature of CSI' s request. 37. Admitted, but denied as a legal conclusion requiring no response. 38. Admitted, but denied as a legal conclusion requiring no response. 39. Tri-Ax has made appropriate objection as required and permitted under Pa. R.C.P. 4019(a)(2), and therefore a motion for protective order is not required. 40. Denied. The motion must be denied. Respec lly submitted, DILW RTHPAXSON ictor P. S , sq. Attorney I.D. No. 37449 112 Market Street, 8th Floor Harrisburg, P A 17101 Tel.: (717) 236-4812 Fax: (717) 236-7811 Of Counsel: David Brooks, Esq. BROOKS KOCH & SORG 615 Russell Avenue Indianapolis, IN 46225 Tel.: (317) 822-3700 Fax: (317) 822-3705 24038_1 Attorneys for Defendant Laura Kopetsky Tri-Ax, Inc. DATED: May 24, 2006 24038_1 VE~ICATION Subject to the penalties of 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities, I hereby certify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. This verification is being provided by counsel, as the plaintiff is unavailable to sign a verification at time of filing. Counsel's sources of information for making this verification are a detailed review of the plaintiffs requests and conferences with the defendant and its consultant. 24043_1 CERTIFICATE OF SERVICE I hereby certify that I have, this 26th day of May 2006, served a true and correct copy of the foregoing document upon the following individuals via postage-prepaid United States mail addressed as follows: Todd J. Shill, Esq. Kelly H. Decker, Esq. RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 24038_1 1 I Todd J. Shill, Esquire Attorney I.D. No. 69225 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PAl 7108-1146 (717)233-5731 Attorneys for Computer Support, Inc. COMPUTER SUPPORT, INe., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION - LAW LAURA KOPETSKY TRI-AX, INe., NO. 05-5977 Defendant JURY TRIAL DEMANDED DEFENDANT'S RESPONSES TO PLAINTIFF'S FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS TO: LAURA KOPETSKY TRI-AX. INe. C/O VICTOR P. STABILE, ESQ. DILWORTH PAXSON, LLP 112 MARKET ST., 8™ FLOOR HARRISBURG, PA 17101 PLEASE TAKE NOTICE that you are hereby required, pursuant to Pennsylvania Rules of Civil Procedure Nos. 4001 et seq., to serve upon the undersigned a copy of your answers and objections, if any, in writing and under oath, to the following Interrogatories within thirty (30) days after service hereof. The answers shall be inserted in the spaces provided. If there is insufficient space to answer an Interrogatory, the remainder of the answer shall follow on a supplemental sheet. These Interrogatories shall be deemed to be continuing. Ifbetween the time of filing your answers and the time of trial of this matter, you, or anyone acting on your behalf, learn of any further information not contained in your answers, or if you learn that any information set forth in your 597350.1 answers is or has become inaccurate or incorrect, you shall promptly file and serve supplemental answers. Also pursuant to Pennsylvania Rules of Civil Procedure Nos. 4001 et seg.., you are hereby required to produce for inspection, examination, and copying, all documents responsive to the following Requests for Production not later than thirty (30) days after service of these Requests. These Requests shall be continuing. If, between the time of producing such documents and the trial of this matter, you or anyone acting on your behalf learn of additional documents responsive to these Requests, you shall produce such documents by supplemental response. DEFINITIONS AND INSTRUCTIONS The following definitions and instructions are applicable to these Interrogatories and Requests for Production: (1) Definitions. (a) "You" or "Your" shall mean the Defendant in the above-captioned litigation. (b) "Document" shall mean any written, handwritten, printed, typed, or other graphic matter of any kind or nature, however produced, reproduced, or copied, including data compilations, e-mail, and all other electronically stored data, however stored (including data files stored in/on office desktop computers/workstations, notebook/laptop computers, home computers, staff computers, palmtop devices or electronic organizers/secretaries, and network file servers/mini-computers; backup tapes including system-wide backups, disaster recovery backups, and personal or "ad hoc" backups; and other media sources including tape archives, replaced/removed drives, floppy diskettes, CD-ROMs, -2 - DVDs, zip cartridges, and other portable media), photographs, microfilms, video. and audio tapes, and any other data compilations from which information can be obtained, (c) "Identify" or "Identity" means when used in reference to - (1) A natural person, his or her: (i) full name; and (ii) present or last known residence and employment address (including street name and number, city or town, and state or county); (2) A document: (i) its description (e.g., letter, memorandum, report, etc.), title, and date; (ii) its subject matter; (iii) its author's identity; (iv) its addressee's identity; (v) its present location; and (vi) its custodian's identity; (3) An oral communication: (i) its date; (ii) the place where it occurred; (iii) its substance; (iv) the identity of the person who made the communication; (v) the identity of each person to whom such communication was made; and -3- (vi) the identity of each person who was present when such communication was made; (4) A cotporate entity: (i) its full cotporate name; (ii) its date and place ofincotporation, if known; and (iii) its present address and telephone number; (5) any other context: a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, and the identification of relevant people, entities, and documents. (2) Claim of privilege. With respect to any claim of privilege or immunity from discovery, you must identify the privilege or immunity asserted and provide sufficient information to substantiate the claim. (3) Option to produce documents. In lieu of identifying documents in response to these Interrogatories, you may provide copies of such documents with appropriate references to the corresponding Interrogatories. -4- SUBJECT TO OBJECTIONS ALREADY FILED, THE DEFENDANT LAURA KOPETSKY TRI-AX, INC. ("Tri-Ax") RESPONDS AS FOLLOWS: INTERROGATORIES 1. Identify each person whom you intend to call as a fact witness at trial. With respect to each person identified, state what you intend to prove by his or her testimony. ANSWER: This determination has not been made. The defendant will seasonably supplement this response at the appropriate time as required by the Pennsylvania Rules of Civil Procedure. -5- 2. Identify each person whom you intend to call as an expert witness at trial. With respect to each person identified, state: (1) the subject matter on which he or she is expected to testify; (2) the substance of the facts and opinions to which he or she is expected to testify; (3) a summary of the grounds for each opinion; and (4) whether he or she created a report relating to this matter. ANSWER: This determination has not been made. The defendant will seasonably supplement this response at the appropriate time as required by the Pennsylvania Rules of Civil Procedure. -6- 3. Identify all exhibits that you intend to use at trial. ANSWER: This determination has not been made. The defendant will seasonably supplement this response at the appropriate time as required by the Pennsylvania Rules of Civil Procedure. -7- 4. Identify every individual who provided information to you for the purposes of answering these Interrogatories. ANSWER: Marcia Ross, consultant to Laura Kopetsky Tri-Ax, Inc.; Kathy Howard and Cathy Schuck, both employees of Laura Kopetsky Tri-Ax, Inc. -8- 5. Identify every individual, whether or not compensated by you, who provided an opinion regarding the value, quality, fitness, and/or working condition of Plaintiff s software. For each individual, explain in detail the opinion provided. ANSWER: Responses in summary form are as follows. Descriptions are not meant to be exhaustive. Kathy Howard - employee in charge of payroll and accounts receivable. Software did not work. Jan Dalton - employee in payroll, driver settlements, and account receivables. Software did not handle specific Tri-Ax tasks well, in particular custom features. Would not allow us to service customers. Judy Ballard - employee in payroll, driver settlements, and account receivables. Software did not handle specific Tri-Ax tasks well, in particular custom features. Would not allow us to service customers. Debbie Jones - former employee, order taker, dispatch and quoting, and assistant to John Guy. Software was cumbersome to use and could not process orders properly from quote to order. There was a fundamental problem with the system on material handling which Tri- Ax was assured enhancements it was to receive would correct. Could not handle multiple materials in a single order. Kim Williams - former employee in sales. Software was cumbersome and could not handle quotes. Could not process orders properly from quote to order. John Guy - was on-site manager for Tri-Ax. Essentially, system Tri-Ax thought it was buying was not the system received. CSI did not properly assess Tri-Ax needs and provide system modifications to allow the software to perform for Tri-Ax. Cathy Schuck - finance manager. Had concerns on software ability to handle multiple companies. Marcia Ross- consultant to Tri-Ax for IT systems. Opinions are essentially outlined in February 10, 2005 letter to CSI. -9- 6. Provide a detailed, specific, itemized breakdown of any and all damages and lost profits alleged in your Counterclaims. ANSWER: The counterclaim seeks to recover monies paid to CSI for the software system purchased as stated in the complaint for approximately $27,000, plus such other appropriate relief determined by the court. -10- 8. Please provide the following information with respect to your computer system: (a) the layout and structure of your computer system, including the number and types of computers and the types of operating systems and application software packages used (provide the software maker, program name, and version for each software package; (b) the structure of any e-mail system, including software used, the number of users, the location of e-mail files, and password usage; ( c) the structure of any network, including the configuration of network servers and workstations, and the brand and version number of the network operating system in use; (d) software applications used for things such as calendars, project management, accounting, word processing, and database management, including industry- specific programs, proprietary programs, encryption software, and utility programs (provide the installation date for each software package); (e) the personnel responsible for the ongoing operation, maintenance, expansion, and upkeep of the network; (f) the personnel responsible for administering the e-mail system; (g) the personnel responsible for maintenance of computer-generated records and the manner in which such records are organized and accessed; (h) backup procedures used on all computer systems, including a description of all devices (e.g., tape drives) and software used to create backups, the personnel responsible for conducting the backups, what information is backed up; backup schedules, and tape rotation schedules; (i) the process for archiving and retrieving backup media both on and off site; (j) the procedure used by system users to log on to computers and into the network, including the use of passwords, logs, audit trails, and other security measures used to identify data created, modified, or otherwise accessed by particular users; (k) whether and how access to particular files is controlled; and (1) routines for archiving and purging electronic data. 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I:\) ~ ~ 5- ~ I 'Tj ""I f ~ ~ ~~ ~ - (I) ~ o ::l ::l Otl' ng' e.-< ~er V'l~ g.a- ~~ ::o;"tI> tl>U~ ?S~ ~ S c..(I) o c.. ::l t:: tI> ~ S' e.(fQ ~N ::r:t:a ~ tI:l <: ~ a (I) tl>U ~ "t:1- no . -< o ~ :E e V'l i:l:' 8 5 (I) ~ c.. ""I :it (I) tI> ~ c.. V'l a ~ tI> i:l:' ~ .a ~ '"d n Q ell :>';'" ell "0 ~ G _. ell =' o ..... a ~ "0 ""I G a ~. ~ 0- 0- ~ -. ell =' g () s:: @ a -< ""I o s:: ..... S' G - '< "0 ~ G po Z o ..... ~ "0 'E.. -. () ~ ~ . REQUESTS FOR PRODUCTION SUBJECT TO OBJECTIONS ALREADY FILED, TRI-AX RESPONDS AS FOLLOWS~ 1. Any and all documents (as defined above) which evidence, reference, relate to, pertain to, or support the allegations in your Answer, New Matter and Counterclaims. Tri-Ax file documents responsive to this request will be made available for inspection at a mutually convenient time and place. 2. Any and all proposals, agreements, licenses, and other documents (as defined above) which evidence, reference, relate to, pertain to, or state an agreement between the parties with respect to software, charges, fees, or invoices. Tri-Ax file documents responsive to this request will be made available for inspection at a mutually convenient time and place. 3. Any and all documents (as defined above) which evidence, reference, relate to, pertain to, or state your requests for, receipt of, acceptance of, or rejection of, software provided by Plaintiff Tri-Ax file documents responsive to this request will be made available for inspection at a mutually convenient time and place. 4. Any and all documents (as defined above) which evidence, reference, relate to, pertain to, or state the amount of any charges or fees you agreed to pay Plaintiff for software. Tri-Ax file documents responsive to this request will be made available for inspection at a mutually convenient time and place. 5. Any and all documents (as defined above) which evidence, reference, relate to, or pertain to software purchased to replace the software provided by Plaintiff, including documents concerning your inquiries, requests, purchases, and payments for such replacement software. None. 6. Copies of any and all accounts payable or other business records which evidence, reference, relate to, or pertain to the history of the transaction between the parties and any amounts owed to Plaintiff. Tri-Ax file documents responsive to this request will be made available for inspection at a mutually convenient time and place. 7. Copies of any and all written policies for the retention and destruction of documents, including but not limited to, business records. None on the data side. 8. Since the filing ofthe Complaint on November 17, 2005, if any documents have been destroyed, please state which electronic files have been deleted and the dates of such destruction. Subject to objection previously filed. None pertaining to any activities relating to CSI. 9. Copies of any and all lists of personnel (names and titles) for all personnel involved with your information technology or information services. None. 10. Copies of any and all software installed or used on your personnel computers during the period from October 2004 to the present, including all titles and version numbers and authors and contact information for the authors of custom or customized software. Subject to objection previously filed. 11. The most recent full or partial computer system back-up completed prior to the filing of the Complaint on November 17,2005. Subject to objection previously filed. -12- . 12. Any and all documents, including but not limited to, purchase orders, invoices, receipts and licensing agreements, reflecting your purchase of "CSI.Road", including any and all databases and/or other electronic data compilations related thereto or that run off of or in tandem with this program. Tri-Ax fIle documents responsive to this request will be made available for inspection at a mutually convenient time and place. RHOADS & SINON LLP ToddJ. Shill One South Market Square P.O.Box 1146 Harrisburg, PAl 71 08-1146 (717)233-5731 ATTORNEYS FOR PLAINT~F ictor P. Sta e, sq. Attorney J.D. No. 37449 112 Market Street, 8th Floor Harrisburg, P A 17101 Tel.: (717) 236-4812 Fax: (717) 236-7811 Of Counsel: David Brooks, Esq. BROOKS KOCH & SORG 615 Russell Avenue Indianapolis, IN 46225 Tel.: (317) 822-3700 Fax: (317) 822-3705 Attorneys for Defendant Laura Kopetsky Tri-Ax, Inc. DATED: May 24,2006 . VER~ICATION Subject to the penalties of 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities, I hereby certify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. This verification is being provided by counsel, as the plaintiff is unavailable to sign a verification at time of filing. Counsel's sources of information for making this verification are a detailed review of the defendant's requests and conferences with the defendant and its consultant. 24043_1 . ~ CERTIFICATE OF SERVICE I hereby certify that I have, this 26th day of May 2006, served a true and correct copy of the foregoing document upon the following individuals via postage-prepaid United States mail addressed as follows: Todd J. Shill, Esq. Kelly H. Decker, Esq. RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 r-' .~ CJ <J'" -, ~ ~-n IIlp rn yl ';~:', - -"1:"t '.,.2}~ ~~~. ~,:~,~/t "1-:6 :< C', o --r; f:,: U1 ~ ,. COMPUTER SUPPORT, INC.. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff : CIVIL ACTION - LAW v. : NO. 05-5977 LAURA KOPETSKY TRI-AX, INC., Defendant CONSENT ORDER 1. On May 5, 2006, Plaintiff Computer Support, Inc. ("Plaintiff") filed a Motion to Compel Discovery in this matter. 2. On May 10, 2006, the Court entered an Order scheduling a Discovery Conference for July 31, 2006 at 1:30 p.m. to address Plaintiff's Motion to Compel and Defendant's Response thereto. 3. The parties have agreed to enter into this Consent Order in an effort to resolve the issues raised in Plaintiff's Motion to Compel. 4. Defendant agrees to produce docwnents responsive to Plaintiff's discovery requests and/or make the documents available for inspection at Defendant's counsel's office, Dilworth Paxson, in Harrisburg, Pennsylvania within fourteen (14) days of the date of this agreement, by August 14,2006. s. It is further agreed that by August 14, 2006, counsel for Plaintiff and Defendant will agree to dates and the location for initial depositions of parties and witnesses. 6. Plaintiff enters into this agreement without waiving any of the issues raised in its Motion to Compel and Defendant enters into this agreement without waiving any objections r. ; asserted. 617209. con....t_ordor (2) I .. ~ 7. Plaintiff's motion is withdrawn without prejudice and Defendant's objections are preserved without prejudice, upon execution of this Consent Order by the Court. s"( IT IS SO ORDERED this J day of P. \l~-') ~ t ,2006. We hereby consent to the entry of the foregoing Order. Respectfully submitted, RHOADS & SINON LLP By: ~ If /Ju 1.fA ToddJ. S . Kelly H. Decker One South Market Square P. O. Box 1146 Harrisburg, P A 171 08-1146 (717) 233-5731 Attorneys for Plaintiff Computer Support, Inc. \ By: ictor P. StaDt e, 112 Market Street, 8 Floor Harrisburg,PA 17101 (717) 236-4812 Attorney for Defendant Laura Kopetsky Tri-Ax, Inc. 617209. conscnU,rdcr (2) .. \ .. 1\ ''''''I'J ZC~~"' Sl~dG T . :l',_~i :K.I ...J. '._ OS: I Hd