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Home My WebLink About06-0773 SA UL EWING LIP Joel C. Hopkins, Esquire Pa, Attorney I,D. No, 85096 Penn National Insurance Plaza 2 North Second Street, 7th Floor Harrisburg, P A 17101 (717) 257-7525 (717) 257-7590 (facsimile) Attorneys for Plaintiff ------------------------------------------------------------------------------------------------------------------------------ SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff, NO. 0(" - "17.] C:w; L'TfA-h1 v. STAR TRUCKING CO" LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants, --------------------------------------------------------------------------------------------------------------------- NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the forgoing 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 OR KNOW A LAWYER, THEN YOU SHOULD 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, Pennsylvania 17013 Telephone No, (717) 249-3166 120866.] A VISa USTED HA smo DEMANDADO EN LA CORTE. Si usted desea defenderso de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia esrita en persona 0 por abogado y presentar en la Corte por escrito sus defensas 0 sus objectiones alas demandas en su contra. Se Ie avisa que si no se defiende, el caso puede porceder sin usted y la Corte puede decidir en su contra sin mas aviso 0 notificacion por cualquier dinero reclamado en la demanda 0 por cualquier otra queja 0 compensacion reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIERDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE EST A DEMANDA A UN ABOGADO INMEDIA T AMENTE. SI USTED NO TIENE 0 NO CONOCE UN ABOGADO, V A Y A 0 LLAME A LA OFICINA EN LA DIRECCION ESRIT A ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone No. (717) 249-3166 120866.1 SAUL EWING LIP Joel C. Hopkins, Esquire Pa, Attorney I,D, No, 85096 Penn National Insurance Plaza 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) Attorneys for Plaintiff ------------------------------------------------------------------------------------------------------------------------------ SZIVEK ENTERPRISES, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs, NO. 01..- - 143 CiozL ~f/2..""'1 v, STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants, --------------------------------------------------------------------------------------------------------------------- COMPLAINT AND NOW, comes Plaintiffs Szivek Enterprises, LLC and Robert Szivek, by and through their counsel, and files the within Complaint against Defendants, Star Trucking Company, LLC and Class 8 Shops, LLC, and in support thereof, avers as follows: Parties 1. Plaintiff Szivek Enterprises, LLC, is a Pennsylvania limited liability company with its principal place of business at 7710 Carlisle Road, Wellsville, York County, Pennsylvania, 2. Defendant Star Trucking Company, LLC ("Star"), is believed and therefore averred to be a Pennsylvania limited liability company with its principal place of business located in New Kingston, Cumberland County, Pennsylvania. 120866.1 3. Defendant Class 8 Shops, LLC ("Class 8") is believed and therefore averred to be a Pennsylvania limited liability company with its principal place of business located at 7044 Carlisle Pike, Carlisle, Cumberland County, Pennsylvania, Backl!:round 4. Star Trucking Company is authorized by the United States Department of Transportation to act as a common carrier of property by motor vehicle in interstate or foreign commerce. 5, Szivek Enterprises is an owner / operator of power equipment (tractors) used in the transportation of goods in interstate or foreign commerce. 6, On or about September 22,2005, Szivek Enterprises and Star Trucking entered into a Contractor Lease Agreement, a copy of which is attached hereto as Exhibit A and incorporated herein by reference. 7. Pursuant to the terms of the Lease Agreement, Szivek Enterprises agreed to lease a 1997 International 9400 Tractor with a driver or drivers to Star Trucking for the purpose of providing motor carrier services to the shipping public, 8. The Lease Agreement provided that Star Trucking was to make shipments available to Szivek Enterprises under Star's certificate of authority to operate as a common carrier, and that Szivek Enterprises was to provide the equipment and personnel to complete those shipments, 9. In exchange for its services under the terms of the Lease Agreement, Szivek Enterprises was to receive 80% of the revenue for each trip undertaken on Star Trucking's behalf, less certain chargebacks as set forth in the agreement. 120866.1 -2- 10. According to the Lease Agreement, Star Trucking was to pay Szivek Enterprises on the 2nd and 4th Friday of each month for all work performed during the 14 days prior to the date of such payments. See Lease Agreement, ~ 13. II. Star Trucking was also to provide Szivek Enterprises with the relevant information upon which Szivek's compensation under the Lease Agreement was calculated at or before the time Szivek Enterprises was to be paid for such services. Id" ~ 14, 12. On or about November I, 2005, Szivek Enterprises signed a second Contractor Lease Agreement containing essentially the same terms as the September 22, 2005 agreement, but increasing the percentage of total revenue Szivek Enterprises was to receive as compensation for its services and changing the amounts of certain charge backs , A true and correct copy of the November I, 2005 Contractor Lease Agreement is attached hereto as Exhibit B. 13, Szivek Enterprises has not been provided a fully-executed copy of the November 1,2005 Contractor Lease Agreement signed by Star Trucking. 14. Between October 12,2005, and November 17,2005, Szivek Enterprises accepted various shipments under the terms of the above Lease Agreement(s), and was entitled to be compensated for those shipments as set forth therein, 15. As of this date Star Trucking has not paid Szivek Enterprises for services provided under the terms of the Lease Agreement(s) after October 22,2005, 16. In addition to not receiving payment under the terms of the Lease Agreement(s), as set forth more fully above, Szivek Enterprises has not been reimbursed for certain expenses incurred on behalf of Star Trucking under the terms of the Lease Agreement( s), namely, expenses incurred for professional unloading services, 120866.) -3- 17. As of this date Szivek Enterprises has not received documentation demonstrating the amount of compensation due Szivek Enterprise for all services provided under the terms of the Lease Agreement(s), as required thereby and by federal law. 18. In addition to providing services under the terms of the Lease Agreement(s), Szivek Enterprises also provided hauling services for Star Trucking. 19. Specifically, from September 9, 2005, to October 12,2005, Szivek Enterprises utilized its power equipment to haul trailers owned or under the control of Star Trucking. 20. Szivek Enterprises also incurred $360.87 in expenses associated with the repair of a damaged tire on one of Star Trucking's trailers while providing the aforementioned hauling services. COUNT I - BREACH OF CONTRACT AGAINST STAR TRUCKING COMPANY, LLC 21. Paragraphs I through 20 above are incorporated herein by reference, 22, Star Trucking and Szivek Enterprises entered into a valid and binding agreement whereby Star Trucking agreed to compensate Szivek Enterprises for certain services provided under the terms of the Lease Agreement(s), as more fully set forth above. 23. Star Trucking had a duty under the terms of the Lease Agreement(s) to compensate Szivek Enterprises for services provided thereunder and to provide all documentation supporting such compensation. 24, Star Trucking has unjustifiably failed to compensate Szivek Enterprises for all services provided under the terms of the Lease Agreement(s), or to provide Szivek Enterprises with documentation supporting all compensation due and owing thereunder. 120866.1 -4- 25. Star Trucking's failure to perform under the terms of the Lease Agreement(s), as more fully set forth above, constitutes a material breach thereof. 26. As a direct and proximate result of Star Trucking's breaches of the Lease Agreement(s), Szivek Enterprises has incurred and will incur damages in an amount that does not exceed the compulsory arbitration limit set by this Court. 27. Szivek Enterprises has fulfilled all of its obligations and satisfied all conditions precedent to payment under the terms of the Lease Agreement(s). 28. Star Trucking and Szivek Enterprises entered into a valid agreement whereby Star Trucking was to compensate for Szivek Enterprises for those hauling services identified above (the "Hauling Agreement"). 29. As part of the aforementioned agreement, Star Trucking implicitly agreed to pay Szivek Enterprises for all costs and expenses incurred on Star Trucking's behalf. 30. Star Trucking had a duty under the terms of the Hauling Agreement to compensate Szivek Enterprises for services provided thereunder and to reimburse Szivek Enterprises all costs and expenses incurred on Star Trucking's behalf. 31. Star Trucking has unjustifiably failed to compensate Szivek Enterprises for all services provided under the terms of the Hauling Agreement. 32. Star Trucking's failure to perform under the terms of the Hauling Agreement, as more fully set forth above, constitutes a material breach thereof. 33. As a direct and proximate result of Star Trucking's breaches of the Hauling Agreement, Szivek Enterprises has incurred and will incur damages in an amount that does not exceed the compulsory arbitration limit set by this Court. 120866,1 -5- 34. Szivek Enterprises has fulfilled all of his obligations and satisfied all conditions precedent to payment under the terms of the Hauling Agreement. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Star Trucking Company, LLC, for compensatory damages in an amount not exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT II - PROMISSORY ESTOPPEL AGAINST STAR TRUCKING COMPANY, LLC 35. To the extent not inconsistent herewith, paragraphs I through 34 above are incorporated herein by reference. 36. Szivek Enterprises pleads the within cause of action in the alternative. 37. Star Trucking, acting through its authorized agents, expressly and impliedly promised Szivek Enterprises that it would pay for the services provided by Szivek Enterprises, as more fully set forth above. 38. Star Trucking received Szivek Enterprise's services without objection or comment, and communicated with Szivek Enterprises in a manner designed to cause Szivek Enterprises to believe it would be paid the full amount due and owing under the terms of the Lease Agreement( s) and the Hauling Agreement, as set forth therein. 39. Star Trucking should have reasonably expected that its actions and promises would induce Szivek Enterprises to continue performance under the terms of the Lease Agreement(s) and the Hauling Agreement. 40. Star Trucking's promises and directions did, in fact, induce Szivek Enterprises to provide the services set forth above. 120866.] -6- 41. Szivek Enterprise's reliance on Star Trucking's promises and directions was reasonable under the circumstances and has resulted in detriment to Szivek Enterprises, as Star Trucking has wrongfully withheld payment for the services provided under the terms of the Lease Agreement(s) and the Hauling Agreement. 42. Injustice can only be avoided by enforcement of Star Trucking's promises to compensate Szivek Enterprises for the services provided to Star Trucking in reliance upon its promises and directions. 43. As a direct, proximate and foreseeable result of Star Trucking's actions, Szivek Enterprises has incurred and will incur damages in an amount that does not exceed the compulsory arbitration limit set by this Court. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Star Trucking Company, LLC, for compensatory damages in an amount not exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT III - UNJUST ENRICHMENT / QUANTUM MERUIT AGAINST STAR TRUCKING COMPANY. LLC 44. To the extent not inconsistent herewith, paragraphs I through 43 above are incorporated herein by reference. 45. Szivek Enterprises pleads the within cause of action in the alternative. 46. Szivek Enterprises provided services to Star Trucking, as set forth above, 47. Star Trucking expressly solicited Szivek Enterprises and requested that it provide the services as set forth more fully above. 48. Star Trucking accepted the aforementioned services trom Szivek Enterprises and retained the benefit of those services. 120866.1 -7- 49. Star Trucking knew at all times that Szivek Enterprises did not provide the aforementioned services gratuitously, and that Szivek Enterprises reasonably expected compensation for the services provided. 50. Despite repeated demands to be paid for the above services, Star Trucking has refused to pay Szivek Enterprises for the benefits conferred upon it. 51. By reason of the foregoing, Star Trucking has wrongfully and unjustly secured material benefits from Szivek Enterprises in such a manner that it would be unconscionable for Star Trucking to retain those benefits without just compensation to Szivek Enterprises. 52. Szivek Enterprises is entitled to the reasonable value of the services provided to Star Trucking, for which Star Trucking has not been compensated. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Star Trucking Company, LLC, for compensatory damages in an amount not exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT IV - BREACH OF CONTRACT AGAINST CLASS 8 SHOPS, LLC 53. Paragraphs I through 52 are incorporated herein by reference. 54. It is believed and therefore averred that Class 8 Shops shares common ownership and management with Star Trucking. 55. Class 8 shops is in the business of servicing and repairing transportation power equipment (tractors) and trailers used in interstate commerce. 56, In October and November of2005, Szivek Enterprises had two 1997 International 9400 power units serviced by Class 8. 1208661 -8- 57, On or about October 26, 2005, Szivek Enterprises paid Class 8 $2,000.00 by certified cashier's check #2123396 for work done on the aforementioned power units prior to October 12, 2005. 58. As of the date of this filing, Szivek Enterprises has not been fully invoiced for the work done by Class 8 on the two identified power units, nor has Szivek received a receipt acknowledging the October 26, 2005 cash payment. 59. Class 8 and Szivek Enterprises entered into a valid and binding agreement whereby Class 8 was to perform certain service and repair work on two 1997 International 9400 power units owned by Szivek Enterprises, as more fully set forth above. 60. Class 8 had a duty under the terms of the parties' agreement to only accept payment for services performed on Szivek Enterprise's behalf, and to provide all documentation supporting such right to payment. 61. Class 8 has unjustifiably failed to provide Szivek Enterprises with invoices demonstrating all work performed under the terms of the parties agreement, or to justify its entitlement to the payments made by Szivek Enterprises. 62, Class 8's failure to perform under the terms of the parties' agreement, as more fully set forth above, constitutes a material breach thereof 63. As a direct and proximate result of Class 8' s breaches of the parties' agreement, Szivek Enterprises has incurred and will incur damages in an amount not exceeding the compulsory arbitration limit set by this Court, 64. Szivek Enterprises has fulfilled all of his obligations and satisfied all conditions precedent under the terms of the parties' agreement. 120866.1 -9- WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Class 8 Shops, LLC, for compensatory damages in an amount not exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate, COUNT V - UNJUST ENRICHMENT / QUANTUM MERUIT AGAINST CLASS 8 SHOPS, LLC 65. To the extent not inconsistent herewith, paragraphs I through 64 above are incorporated herein by reference. 66. Szivek Enterprises pleads the within cause of action in the alternative, 67. Szivek Enterprises paid Class 8 Shops as set forth above. 68. Class 8 Shops solicited Szivek Enterprises to provide compensation for the services as set forth more fully above. 69. Class 8 accepted the aforementioned payments from Szivek Enterprises and retained the benefit of that payment. 70. Class 8 knew at all times that Szivek Enterprises did not provide the aforementioned payments gratuitously, and that Szivek Enterprises reasonably expected to receive services in exchange therefor. 71. Despite repeated demands to be reimbursed all amounts paid by Szivek Enterprises for which no service was provided, Class 8 has refused to reimburse Szivek Enterprises for the benefits conferred upon it. 72. By reason ofthe foregoing, Class 8 has wrongfully and unjustly secured material benefits from Szivek Enterprises in such a manner that it would be unconscionable for Class 8 to retain those benefits without just compensation to Szivek Enterprises, 1208661 -10- 73. Szivek Enterprises is entitled to the reasonable value of the payments made to Class 8 for which no services have been provided. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court enter judgment in its favor against Class 8 Shops, LLC, awarding compensatory damages, together with interest and costs, including reasonable attorneys' fees and expenses (as allowable by law), and such further relief as this Court deems just and appropriate. COUNT VI - CONVERSION AGAINST CLASS 8 SHOPS. LLC 74. Paragraphs 1 through 73 are incorporated herein by reference 75. Szivek Enterprises paid Class 8 for work on the two power units identified above in an amount greater than that required under the terms of the parties' agreement 76. Class 8 has not refunded to Szivek Enterprises the amount of its overpayment, as more fully set forth above, which amount is rightfully the property of Szivek Enterprises. 77. Class 8 has deprived or interfered with Szivek Enterprise's use or possession of its property without any legal justification. 78. As a direct result of Class 8's conversion, Szivek Enterprises was injured in an amount that does not exceed the compulsory arbitration limit set by this Court. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Class 8 Shops, LLC, for compensatory damages in an amount not exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate, 120866.1 -11- Respectfully submitted, SAUL EWING LLP "-7 PL~__ Joel C. Hopkins, Esquire Saul Ewing LLP Attorney J.D. No. 85096 2 North Second Street, 7'h Floor Harrisburg, P A 17101 (717) 238-7525 Attorneys for PlaintifJl Date: February 3. , 2006 120866] -I - 2/ 2/' D (; T HU l-r o~eceived 0210212006 04:59PM i~n, ~~:70~3~~ ,lJ~e [10] for 3)6I~'*/~~o15/15 11 10,/ 1 S VERIFICA nON 1, Robert Szivek, being subject to the penalties of 18 Pa, C. S, ~4904 relating to unsworn falsification to authorities, hereby state that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief By: Date: FebruaryL~006 1208661 -15- (:) -tc. ~ /0 '7'- lrt ~ \!t. ~ 0 ~'n lrt. " -n - B C> ,--'" ~ CJ~l ~ , C> , ,,"1- ...0 -...{ ~ 0- :b - ' -l=- Z:-~) ...,..- ~;:-d c:> .- Star Trucking Company, LLC. 7044 Carlisle Pike, Carlisle, Pa 17013 (717)691-8036 Class 8 Shops, LLC. 7044 B Carlisle Pike, Carlisle, Pa 17013 In the Court Of Common Pleas for the State Of Pennsylvania In And For Cumberland County Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No, 06-773 Szivek Enterprises, LLC Plaintiff Star Trucking Company, LLC Class 8 Shops, LLC Answer of Defendant Parties 1. Do not know. 2. Denied: Principal place of business is located in Carlisle, Pennsylvania, 3. Admitted. Background 4. Admitted. 5, No current knowledge of Szivek Enterprises status. 6. Admitted. 7. Denied: Szivek Enterprises agreed to two (2) different agreements. 1, To purchase lease a 1997 International 940 Tractor. 2. To drive the tractor under a contractor lease to Star Trucking, 8. Denied: See prior answers. 9. Admitted in part: Szivek Enterprises was required to perform other duties outlined in the Contractor Lease Agreement in addition to completing shipments, These included but are not limited to preparation and submission of daily log sheets as required by federal laws, and providing signed bills of lading and other documents. 10. Admitted in part: Providing other terms of Contractor Agreement were met. 11. Admitted, 12. Admitted. 13. Denied 14. Admitted, 15. Admitted in part: Szivek Enterprise could not be reached by mail, telephone, or any other method after missing two (2) scheduled meeting in early December, 2005, to conclude his remaining settlement amounts. 16. Can not admit or deny at this time. 17. Admitted. Szivek Enterprises refuses to make or correspond with defendant and has made no attempt to settle these matters. 18. Denied: No agreement exists for "hauling services". 19. Denied: Mr. Szivek used Star Trucking equipment to move two (2) trailers on a voluntary basis. 20. Denied: Mr, Rob Szivek damaged two (2) tires through negligence and took it upon himselfto handle the situation. Mr. Szivek notified us after the fact and he never requested payment or any other Compensation. He apologized for ruining the tires, Count 1. Breach of Contract Against Star Trucking Company, LLC 21. No answerrequired. 22. Admitted. 23. Admitted in part: Szivek Enterprises also had a duty under the terms of the lease agreement to provide all documentation, 24. Denied: Star Trucking has made repeated attempts to resolve all outstanding issues with Szivek Enterprises. 25. Denied: Szivek Enterprises is in violation of Part 30 of the lease agreement. Mr. Szivke refused to provide the services he agreed to in the contract and then unexplainably disappeared for several weeks before hiring an attorney to make these baseless claims. 26. Denied: see prior answer. 27. Denied: Szivek worked from October 12,2005 until November 22, 2005. During that time he had an accident, was cited for overweight, missed five (5) appointments, refused a dispatch, and refused to work on ten (10) different work days. On November 22,2005, he quit in violation of his contract. 28, Denied: no "hauling agreement" exist or ever existed. 29. Denied: see prior answers. 30. Denied: see prior answers. 31, Denied: see prior answers. 32. Denied: see prior answers, 33. Denied: see prior answers, 34. Denied: see prior answers. Star Trucking requests judgment against Plaintiff. Plaintiff is in breach of its contract with Star Trucking and has made no attempt to resolve any issues or concerns since disappearing in early December of2005, Count II. Promissary Estoppel Against Star Trucking Company, LLC 35. No answer required. 36. No answer required. 37. Admitted: in part. Star Trucking promised to pay for certain services under certain circumstances. Not all claims set forth above are valid. 38, Denied: from late August 2005, until early December 2005, Szivek Enterprises and Star Trucking engaged in many discussions, comments, and communications regarding various issues, involving payments and services. 39. Denied: Szivek Enterprises discontinued performing services unexpectedly and without notice in violation of the agreement. 40. Denied: Szivek Enterprises broke the agreement and was not heard from for several weeks until he hired an attorney to file these claims. 41. Denied. 42. Denied: Szivek Enterprises could have resolved all these issues in early December 2005, Mr, Szivek's own negligence was the reason final compensation has not been determined. 43. Denied: Szivek Enterprises own actions or inactions resulted in damages; if any exist. Star Trucking Company, LLC requests judgment against Plaintiff for all costs incurred to defend these baseless and unfounded charges. Szivek Enterprises led Star Trucking to believe it would continue to provide services under terms of it's agreement. Count III- Unjust Enrichment/Quantum Meruit Against Star Trucking Company, LLC 44. No answer required. 45. No answer required. 46. Denied: see answers as set forth above, 47, Denied: Szivek Enterprises did not exist when discussions occurred with Mr. Szivek in the summer of2005. Mr. Szivek repeatedly contacted Star Trucking to join the start up phase of the company. 48. Admitted in part: Star Trucking also incurred damages, monetarily and operationally, due to the performance and subsequent breach of contract by Szivek Enterprises, 49. Denied: certain services were indeed provided gratuitously by Mr, Szivek and in some cases in exchange for administrative and mechanical considerations. 50. Denied: the only demands made were by Star Trucking to Mr. Szivek to make himself available to settle outstanding matters, 51. Denied: Star Trucking has made an extraordinary effort to meet with Mr. Szivek and settle these matters, 52. Denied: Wherefore Star Trucking requests judgment against Plaintiff for costs incurred to defend itself against these baseless and meritless charges, Count IV- Breach of Contract Against Class 8 Shop, LLC. 53. No answerrequired. 54, Admitted in part, Class 8 Shops, LLC does not have common management with Star Trucking Company, LLC to the extent that each owner manages separate day to day activities, 55. Admitted, 56. Admitted, 57. Admitted. 58. Denied: Mr. Szivek made an unsolicited payment to Class 8 Shops for a variety of work performed, council given, and free parts installed stating "this will cover all the work you did" up until now. He specifically told Mr, Thomas Batz he did not want or need any documentation although work orders were prepared and available. 59. Denied: no agreement exists or ever did exist between Szivek Enterprises and Class 8 Shops, 60. Denied: see prior answers. 61. Denied: Mr. Szivek is a disorganized, sloppy record keeper who was notorious for not keeping records, not wanting documentation or otherwise managing his affairs relating to the trucking operations. A case in point is that Tom Carbonaro, in an effort to help Mr. Szivek, spent over six (6) hours of his own time to organize Mr, Sziveks fuel receipts, toll receipts, delivery documents and log sheets without compensation or expectations. Mr. Szivek records were so bad that he asked for Carbonaro's help in order to prepare for a meeting with his accountant. 62. Denied: no agreement exists or ever existed, 63. Denied: see prior answers. 64. Denied: see prior answers. Wherefore Star Trucking Company, LLC requests judgment in its favor and against Szivek Enterprises for all cost incurred. Count V- Unjust Enrichment/Quantum Meruit Against Class 8 Shops, LLC 65. No answerrequired. 66. No answerrequired. 67. Denied: Some payments were made, not all payments. Circumstances of payments differ from claims made herein by Plaintiff. 68. Denied: Szivek Enterprises solicited Class 8 Shops to perform repair work. 69. Admitted in part: Class 8 Shops accepted certain payments from Szivek Enterprises but did not benefit in all circumstances. 70. Denied: Szivek Enterprises offered payments in a general and casual manner. Payments were made in a manner that did not address specifically outlined services. 71. Denied: no demands were ever made by Szivek Enterprises and no reimbursements are entitled. 72. Denied: Class 8 Shops provided services and counseling to Szivek Enterprises, often without charge, and allowed Mr, Szivek to use Class 8 facilities and equipment on a regular basis, to perform his own maintenance. 73. Denied: Szivek Enterprises still owes Class 8 Shops monies for work performed. Wherefore Class 8 Shops, LLC requests judgment in its favor and payment for all costs incurred. Count VI- Conversion Against Class 8 Shop, LLC 74. No answer required. 75. Denied: no agreement exists. Any payments made were justified by the work performed, use of facilities, use of tools and equipment in an amount less then the value of the above mentioned services. 76. Denied: Szivek Enterprises owes monies to Class 8 Shops, LLC. 77, Denied: Szivek Enterprises has refused to participate in any resolution of these matters since early December 2005, 78, Denied: any injury, if any at all, are the direct result of Szivek Enterprises own actions. Class 8 Shops made every attempt to settle these Issues. Wherefore Class 8 Shops, LLC requests judgment in its favor and restitution for all cost incurred to defend these meritles charges, Wherefore defendant requests judgment as follows: 1. That Plaintiff take nothing by the complaints contained herein and that they be dismissed with prejudice. 2. That Defendant recover from Plaintiff costs in an amount of$1500.00 plus any additional court costs and attorney's fees, 3, That the court compel Szivek Enterprises to meet with Star Trucking Company, LLC and Class 8 Shops, LLC to conclude unsettled matters, 4, That the court order further reasonable relief. u:::r~~ Thomas R. Carbonaro Co-owner Class 8 Shops, LLC Co-owner Star Trucking Company, LLC Dated March 6, 2006 '--,,) 'Ii SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff, NO. 06-773 v, ST AR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants, ORDER AND NOW, this _ day of ,2006, upon consideration of the Plaintiff, Szivek Enterprises, LLC's Motion to Strike Answer, it is hereby ORDERED that the Defendants' Answer is Stricken, with prejudice. j, 12~270 l.l/8/06 12 18PM . SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff, NO. 06-773 v, STAR TRUCKING CO" LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants, MOTION TO STRIKE ANSWER AND NOW, comes Plaintiff, Szivek Enterprises, LLC and Robert Szivek, by and through their counsel, and requests this Court to Strike Defendants' Answer, and in support thereof states the following: 1. Plaintiff, Szivek Enterprises, LLC is a Pennsylvania limited liability company with its principal place of business at 7710 Carlisle Road, Wellsville, York County, Pennsylvania. 2. Defendant, Star Trucking Company, LLC ("Star"), is believed and therefore averred to be a Pennsylvania limited liability company with its principal place of business located in New Kingston, Cumberland County, Pennsylvania, 3. Defendant, Class 8 Shops, LLC ("Class 8") is believed and therefore averred to be a Pennsylvania limited liability company with its principal place of business located at 7044 Carlisle Pike, Carlisle, Cumberland County, Pennsylvania. 4, Plaintiff, Szivck Enterprises, initiated this action by filing a Complaint with this Court on February 7, 2006. ]22:0701_,/8/061218PM 5. On March 6, Thomas R. Carbonaro, Co-owner of Star Trucking, LLC and Class 8 Shops, LLC, filed an Answer to Plaintiffs Complaint on behalf of Star and Class 8, 6. Carbonaro is not believed to be an attorney licensed to practice law in the Commonwealth of Pennsylvania. 7. No counsel has entered an appearance in this case on behalf of Star or Class 8. 8. It is well-settled law that a corporation may appear in court only through an attorney at law admitted to practice before the court. See.~, Walacavage v. Exce1l200, Ine" 480 A,2d 281, 283-284 CPa. Super. Ct. 1984). 9. Because Carbonaro, a non-lawyer, is unable to represent Star and Class 8 in this action, and no counsel has entered an appearance on behalf of either defendant, the Answer filed on behalf of Star and Class 8 by Carbonaro is legally impermissible and must be stricken. WHEREFORE, Szivek Enterprises, LLC, hereby respectfully requests this Court to Strike Defendants' Answer as a result of Star and Class 8's failure to secure counsel. Respectfully submitted, S~UL EWING Ll~, _ f . .~-----r Cll',--._~ Joel C. Hopkins, Esq, Attorney ID No. 85096 2 North Second Street, 7th Floor Harrisburg, P A 17101 (717) 257-7500 Dated: March 8, 2006 Attorneys for Plai/1tiffSzivek E/1terprises. LLC 12227013/Hi061218Pr-,1 CERTIFICATE OF SERVICE I, Joel C. Hopkins, hereby certify that on March 8, 2006, I served a true and correct copy of the foregoing document by first class mail, postage prepaid upon the following persons: Thomas Carbonaro P.O. Box 784 New Kingstown, Pa. 17072 Star Trucking Company, LLC 7044 Carlisle Pike Carlisle, PA 17013 Class 8 Shops, LLC 7044B Carlisle Pike Carlisle, P A 17013 ~.l----P cf/,,--_____ Joel C. Hopkins 122270.1 :,iH/O(, 1218PM . . SAUL EWINGLlP Joel C. Hopkins, Esquire Pa. Attorney J.D. No. 85096 Penn National Insurance Plaza 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) Attorneysfor Plaintiff ------------------------------------------------------------------------------------------------------------------------------ SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 010 - "'rt 3 C10., Lr ffl.-YrJ v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. --------------------------------------------------------------------------------------------------------------------- NOTICE TO PLEAD To: Star Trucking Co., LLC 7044 Carlisle Pike Carlisle, P A 17013 Class 8 Shops, LLC 7044B Carlisle Pike Carlisle, PA 17013 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Amended Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Dated: March 8, 2006 SAUL EWING LLP ~-1- --P c:l"\. Joel/C. Hopkins, Esquire Attorney I.D. Number 85096 2 North Second Strcet, 7'h Floor Harrisburg, P A 17101 (717) 257-7500 Attorney for PlaintitT -----..:....: 120R6f>.2 -1- SA UL EWING LIP Joel C. Hopkins, Esquire Pa. Attorney J.D. No. 85096 Penn National Insurance Plaza 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) Attorneysfor Plaintiff SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the forgoing 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 OR KNOW A LAWYER, THEN YOU SHOULD 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, Pennsylvania 17013 Telephone No. (717) 249-3166 120866.2 A VISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderso de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia esrita en persona 0 por abogado y presentar en la Corte por escrito sus defensas 0 sus objectiones alas demandas en su contra. Se Ie avisa que si no se defiende, el caso puede porceder sin usted y la Corte puede decidir en su contra sin mas aviso 0 notificacion por cualquier dinero reclamado en la demanda 0 por cualquier otra queja 0 compensacion reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIERDADES U OTROS DERECHOS IMPORT ANTES PARA USTED. LLEVE EST A DEMANDA A UN ABOGADO 1NMEDIA T AMENTE. SI USTED NO T1ENE 0 NO CONOCE UN ABOGADO, V A Y A 0 LLAME A LA OF1CINA EN LA DIRECCION ESRIT A ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone No. (717) 249.3166 120H6Il2 SAUL EWING LIP Joel C. Hopkins, Esquire Pa. Attorney I.D. No. 85096 Penn National Insurance Plaza 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) Attorneys for Plaintiff SZIVEK ENTERPRISES, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs, NO. v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. AMENDED COMPLAINT AND NOW, comes Plaintiffs Szivek Enterprises, LLC and Robert Szivek, by and through their counsel, and files the within Amended Complaint against Defendants, Star Trucking Company, LLC, and Class 8 Shops, LLC, and in support thereof, avers as follows: Parties 1. Plaintiff Szivek Enterprises, LLC, is a Pennsylvania limited liability company with its principal place of business at 7710 Carlisle Road, Wellsville, York County, Pennsylvania. 2. Defendant Star Trucking Company, LLC ("Star"), is believed and therefore averred to be a Pennsylvania limited liability company with its principal place of business located in Carlisle, Cumberland County, Pennsylvania. 3. Defendant Class 8 Shops, LLC ("Class 8") is believed and therefore averred to be a Pennsylvania limited liability company with its principal place of business located at 7044 Carlisle Pike, Carlisle, Cumberland County, Pennsylvania. Backeround 4. Star Trucking Company is authorized by the United States Department of Transportation to act as a common carrier of property by motor vehicle in interstate or foreign commerce. 5. Szivek Enterprises is an owner I operator of power equipment (tractors) used in the transportation of goods in interstate or foreign commerce. 6. On or about September 22, 2005, Szivek Enterprises and Star Trucking entered into a Contractor Lease Agreement, a copy of which is attached to the original Complaint as Exhibit A and incorporated herein by reference. 7. Pursuant to the terms of the Lease Agreement, Szivek Enterprises agreed to lease a 1997 International 9400 Tractor with a driver or drivers to Star Trucking for the purpose of providing motor carrier services to the shipping public. 8. The Lease Agreement provided that Star Trucking was to make shipments available to Szivek Enterprises under Star's certificate of authority to operate as a common carrier, and that Szivek Enterprises was to provide the equipment and personnel to complete those shipments. 9. In exchange for its services under the terms of the Lease Agreement, Szivek Enterprises was to receive 80% ofthe revenue for each trip undertaken on Star Trucking's behalf, less certain chargebacks as set forth in the agreement. -2. 10. According to the Lease Agreement, Star Trucking was to pay Szivek Enterprises on the 2nd and 4th Friday of each month for all work performed during the 14 days prior to the date of such payments. See Lease Agreement, ~ 13. 11. Star Trucking was also to provide Szivek Enterprises with the relevant information upon which Szivek's compensation under the Lease Agreement was calculated at or before the time Szivek Enterprises was to be paid for such services. Id., '114. 12. On or about November 1,2005, Szivek Enterprises signed a second Contractor Lease Agreement containing essentially the same terms as the September 22, 2005 agreement, but increasing the percentage of total revenue Szivek Enterprises was to receive as compensation for its services and changing the amounts of certain chargebacks. A true and correct copy of the November I, 2005 Contractor Lease Agreement is attached to the original Complaint as Exhibit B. 13. Szivek Enterprises has not been provided a fully-executed copy of the November I, 2005 Contractor Lease Agreement signed by Star Trucking. 14. In October of 2005, Szivek Enterprises purchased two 1997 International 9400 series trucks from Star Trucking Company for a total cost of $20,000. 15. Szivek Enterprises paid Star Trucking Company in full for the purchase of the aforementioned trucks. 16. Szivek Enterprises has taken delivery of one of the aforementioned trucks, while the other truck remains in the control of Star Trucking, who has refused, despite repeated demands, to provide Szivek Enterprises the keys or access to the vehicle. .3- 17. Between October 12, 2005, and Novcmber 17,2005, Szivek Enterprises accepted various shipmcnts under the terms of the above Lease Agreement(s), and was entitled to be compensated for those shipments as set forth therein. 18. As of this date Star Trucking has not paid Szivek Enterprises for services provided under the terms of the Lease Agreement(s) after October 22,2005. 19. In addition to not receiving payment under the terms of the Lease Agreement(s), as set forth more fully above, Szivek Enterprises has not been reimbursed for certain expenses incurred on behalf of Star Trucking under the terms of the Lease Agreement(s), namely, expenses incurred for professional unloading services. 20. As of this date Szivek Enterprises has not received documentation demonstrating the amount of compensation due Szivek Enterprise for all services provided under the terms of the Lease Agreement(s), as required thereby and by federal law. 21. In addition to providing services under the terms of the Lease Agreement(s), Szivek Enterprises also provided hauling services for Star Trucking. 22. Specifically, from September 9, 2005, to October 12,2005, Szivek Enterprises utilized its power equipment to haul trailers owned or under the control of Star Trucking. 23. Szivek Enterprises also incurred $360.87 in expenses associated with the repair of a damaged tire on one of Star Trucking's trailers while providing the aforementioned hauling services. COUNT I - BREACH OF CONTRACT AGAINST STAR TRUCKING COMPANY, LLC 24. Paragraphs 1 through 23 above are incorporated herein by reference. -4. 25. Star Trucking and Szivek Enterprises entered into a valid and binding agreement whereby Star Trucking agreed to compensate Szivek Enterprises for certain services provided under the terms of the Lease Agreement(s), as more fully set forth above. 26. Star Trucking had a duty under the terms of the Lease Agreement(s) to compensate Szivek Enterprises for services provided thereunder and to provide all documentation supporting such compensation. 27. Star Trucking has unjustifiably failed to compensate Szivek Enterprises for all services provided under the terms of the Lease Agreement(s), or to provide Szivek Enterprises with documentation supporting all compensation due and owing thereunder. 28. Star Trucking's failure to perform under the terms of the Lease Agreement(s), as more fully set forth above, constitutes a material breach thcreof. 29. As a direct and proximate result of Star Trucking's breaches of the Lease Agrcement(s), Szivek Enterprises has incurred and will incur damages in an amount that does not exceed the compulsory arbitration limit set by this Court. 30. Szivek Enterprises has fulfillcd all of its obligations and satisficd all conditions precedent to payment under the terms of the Lease Agreement(s). 31. Star Trucking and Szivek Enterprises entered into a valid agreement whereby Star Trucking was to compensate for Szivek Enterprises for those hauling services identified above (the "Hauling Agreement"). 32. As part of the aforementioned agreement, Star Trucking implicitly agreed to pay Szivek Enterprises for all costs and expenses incurred on Star Trucking's behalf. .5. 33. Star Trucking had a duty under the terms of the Hauling Agreement to compensate Szivek Enterprises for services provided thereunder and to reimburse Szivek Enterprises all costs and expenses incurred on Star Trucking's behalf. 34. Star Trucking has unjustifiably failed to compensate Szivek Enterprises for all services provided under the terms of the Hauling Agreement. 35. Star Trucking's failure to perform under the terms of the Hauling Agreement, as more fully set forth above, constitutes a material breach thereof. 36. As a direct and proximate result of Star Trucking's breaches of the Hauling Agreement, Szivek Enterprises has incurred and will incur damages in an amount that docs not exceed the compulsory arbitration limit set by this Court. 37. Szivek Enterprises has fulfilled all of his obligations and satisfied all conditions precedent to payment under the terms of the Hauling Agreement. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Star Trucking Company, LLC, for compensatory damages in an amount not exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT II - BREACH OF CONTRACT AGAINST STAR TRUCKING COMPANY, LLC 38. Paragraphs I through 37 above are incorporated herein by reference. 39. Star Trucking and Szivek Enterprises entered into a valid and binding agreement whereby Star Trucking agreed to sell Szivek Enterprises two 1997 International 9400 series trucks at a cost of $1 0,000 each (the "Sales Agreement"). -6. 40. Star Trucking had a duty under the terms of the above agreement to deliver each of the aforementioned trucks to Szivek Enterprises at the time Star Trucking received payment therefore. 41. Star Trucking has unjustifiably failed to deliver one of the aforementioned trucks to Szivek Enterprises, despite repeated demands by Szivek. 42. Star Trucking's failure to perform under the terms of the Sales Agreement, as more fully set forth above, constitutes a material breach thereof. 43. As a direct and proximate result of Star Trucking's breaches of the Sales Agreement, Szivek Enterprises has incurred and will incur damages in an amount that does not exceed the compulsory arbitration limit set by this Court. 44. Szivek Enterprises has fulfilled all of its obligations and satisfied all conditions precedent to receiving delivery of the aforementioned truck from Star Trucking. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Star Trucking Company, LLC, for compensatory damages in an amount not exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT III - CONVERSION AGAINST STAR TRUCKING COMPANY, LLC 45. Paragraphs I through 44 are incorporated herein by reference 46. Szivek Enterprises paid Star Trucking for the two 1997 International 9400 series trucks. 47. Star Trucking has refused to deliver one of the aforementioned trucks to Szivek Enterprises, despite repeated demands from Szivek Enterprises and the fact that the aforementioned truck is rightfully the property of Szivek Enterprises. .7. 48. Star Trucking has deprived or interfered with Szivek Enterprise's use or possession of its property without any legal justification. 49. As a direct result of Star Trucking's conversion, Szivek Enterprises was injured in an amount that does not exceed the compulsory arbitration limit set by this Court. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Star Trucking Company, LLC, for compensatory damages in an amount not exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT IV - PROMISSORY ESTOPPEL AGAINST STAR TRUCKING COMPANY, LLC 50. To the extent not inconsistent herewith, paragraphs 1 through 49 above are incorporated herein by reference. 51. Szivek Enterprises pleads the within cause of action in the alternative. 52. Star Trucking, acting through its authorized agents, expressly and impliedly promised Szivek Enterprises that it would pay for the services provided by Szivek Enterprises, as more fully set forth above. 53. Star Trucking received Szivek Enterprise's services without objection or comment, and communicated with Szivek Enterprises in a manner designed to cause Szivek Enterprises to believe it would be paid the full amount due and owing under the ternlS of the Lease Agreement(s) and the Hauling Agreement, as set forth therein. 54. Star Trucking should have reasonably expected that its actions and promises would induce Szivek Enterprises to continue performance under the terms of the Lease Agreement(s) and the Hauling Agreement. -8. 55. Star Trucking's promises and directions did, in fact, induce Szivek Enterprises to provide the services set forth above. 56. Szivek Enterprise's reliance on Star Trucking's promises and directions was reasonable under the circumstances and has resulted in detriment to Szivek Enterprises, as Star Trucking has wrongfully withheld payment for the services provided under the terms of the Lease Agreement(s) and the Hauling Agreement. 57. Injustice can only be avoided by enforcement of Star Trucking's promises to compensate Szivek Enterprises for the services provided to Star Trucking in reliance upon its promises and directions. 58. As a direct, proximate and foreseeable result of Star Trucking's actions, Szivek Enterprises has incurred and will incur damages in an amount that does not exceed the compulsory arbitration limit set by this Court. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Star Trucking Company, LLC, for compensatory damages in an amount not exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT V - UNJUST ENRICHMENT / QUANTUM MERUIT AGAINST STAR TRUCKING COMPANY, LLC 59. To the extent not inconsistent herewith, paragraphs I through 43 above are incorporated herein by reference. 60. Szivek Enterprises pleads the within cause of action in the alternative. 61. Szivek Enterprises provided services to Star Trucking, as set forth above. 62. Star Trucking expressly solicited Szivek Enterprises and requested that it provide the services as set forth more fully above. -9. 63. Star Trucking accepted the aforementioned services from Szivek Enterprises and retained the benefit of those services. 64. Star Trucking knew at all times that Szivek Enterprises did not provide the aforementioned services gratuitously, and that Szivek Enterprises reasonably expected compensation for the services provided. 65. Despite repeated demands to be paid for the above services, Star Trucking has refused to pay Szivek Enterprises for the benefits conferred upon it. 66. By reason of the foregoing, Star Trucking has wrongfully and unjustly secured material benefits from Szivek Enterprises in such a manner that it would be unconscionable for Star Trucking to retain those benefits without just compensation to Szivek Enterprises. 67. Szivek Enterprises is entitled to the reasonable value of the services provided to Star Trucking, for which Star Trucking has not been compensated. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Star Trucking Company, LLC, for compensatory damages in an amount not exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT VI - BREACH OF CONTRACT AGAINST CLASS 8 SHOPS. LLC 68. Paragraphs I through 67 are incorporated herein by reference. 69. It is believed and therefore averred that Class 8 Shops shares common ownership and management with Star Trucking. 70. Class 8 shops is in the business of servicing and repairing transportation power equipment (tractors) and trailers used in interstate commerce. -10- 71. In October and November of2005, Szivek Enterprises had two 1997 International 9400 power units serviced by Class 8. 72. On or about October 26, 2005, Szivek Enterprises paid Class 8 $2,000.00 by certified cashier's check #2123396 for work done on the aforementioned power units prior to October 12,2005. 73. As of the date of this filing, Szivek Enterprises has not been fully invoiced for the work done by Class 8 on the two identified power units, nor has Szivek received a receipt acknowledging the October 26, 2005 cash payment. 74. Class 8 and Szivek Enterprises entered into a valid and binding agreement whereby Class 8 was to perform certain service and repair work on two 1997 International 9400 power units owned by Szivek Enterprises, as more fully set forth above. 75. Class 8 had a duty under the terms of the parties' agreement to only accept payment for services performed on Szivek Enterprise's behalf. and to provide all documentation supporting such right to payment. 76. Class 8 has unjustifiably failed to provide Szivek Enterprises with invoices demonstrating all work performed under the terms of the parties agreement, or to justify its entitlement to the payments made by Szivek Enterprises. 77. Class 8's failure to perform under the terms of the parties' agreement, as more fully set forth above, constitutes a material breach thereof. 78. As a direct and proximate result of Class 8's breaches of the parties' agreement, Szivek Enterprises has incurred and will incur damages in an amount not exceeding the compulsory arbitration limit set by this Court. .11- 79. Szivek Enterprises has fulfilled all of his obligations and satisfied all conditions precedent under the terms of the parties' agreement. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Class 8 Shops, LLC, for compensatory damages in an amount not exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT VII - UNJUST ENRICHMENT / QUANTUM MERUIT AGAINST CLASS 8 SHOPS, LLC 80. To the extent not inconsistent herewith, paragraphs I through 79 above are incorporated herein by reference. 81. Szivek Enterprises pleads the within cause of action in the alternative. 82. Szivek Enterprises paid Class 8 Shops as set forth above. 83. Class 8 Shops solicited Szivek Enterprises to provide compensation for the services as set forth more fully above. 84. Class 8 accepted the aforementioned payments from Szivek Enterprises and retained the benefit of that payment. 85. Class 8 knew at all times that Szivek Enterprises did not provide the aforementioned payments gratuitously, and that Szivek Enterprises reasonably expected to receive services in exchange therefor. 86. Despite repeated demands to be reimbursed all amounts paid by Szivek Enterprises for which no service was provided, Class 8 has refused to reimburse Szivek Enterprises for the benefits conferred upon it. -12- 87. By reason of the foregoing, Class 8 has wrongfully and unjustly secured material benefits from Szivek Enterprises in such a manner that it would be unconscionable for Class 8 to retain those benefits without just compensation to Szivek Enterprises. 88. Szivek Enterprises is entitled to the reasonable value of the payments made to Class 8 for which no services have been provided. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court enter judgment in its favor against Class 8 Shops, LLC, awarding compensatory damages, together with interest and costs, including reasonable attorneys' fees and expenses (as allowable by law), and such further relief as this Court deems just and appropriate. COUNT VIII - CONVERSION AGAINST CLASS 8 SHOPS. LLC 89. Paragraphs 1 through 88 are incorporated herein by reference 90. Szivek Enterprises paid Class 8 for work on the two power units identified above in an amount greater than that required under the terms of the parties' agreement. 91. Class 8 has not refunded to Szivek Enterprises the amount of its overpayment, as more fully set forth above, which amount is rightfully the property of Szivek Enterprises. 92. Class 8 is also currently in possession of one of the two power units identified above, and has refused, despite repeated demands, to turn the unit over to Szivek Enterprises. 93. Class 8 has deprived or interfered with Szivek Enterprise's use or possession of its property without any legal justification. 94. As a direct result of Class 8's conversion, Szivek Enterprises was injured in an amount that does not exceed the compulsory arbitration limit set by this Court. -13- WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Class 8 Shops, LLC, for compensatory damages in an amount not exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. Respectfully submitted, SAUL EWING LLP -( f-' C~ Joel C. Hopkins, Esquire Saul Ewing LLP Attorney I.D. No. 85096 2 North Second Street, 7'h Floor Harrisburg, PA 17101 (717) 238-7525 Attorneys for Plaintiffs Date: March 9, 2006 -14. Vt;RIFICA TION 1, Robert Szivek, being subject to the penalties of 18 Pa. CS ~4904 relating to unsworn falsification to authorities. hereby state that the facts set forth in the foregoing Amended Complaint are true and correct to the best of my knowledge, information and belief. By. Date: March 1"~2oo6 110lllitd -15- . . CERTIFICATE OF SERVICE !, Joel C. Hopkins, hereby certify that on March 9, 2006, ! served a true and correct copy of the foregoing document by first class mail, postage prepaid upon the following persons: Thomas Carbonaro P.O. Box 784 New Kingstown, Pa. 17072 Star Trucking Company, LLC 7044 Carlisle Pike Carlisle, P A 17013 Class 8 Shops, LLC 7044B Carlisle Pike Carlisle, P A 17013 -t -_._--PC.1t..~ Jo I C. Hopkins _.- 1208(,6.23/9i06228PM . J R::C;:',VED l<\AR ll) l;,J V~ SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff, NO. 06-773 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. RULE TO SHOW CAUSE ~ AND NOW, this .JJ___ day of March, 2006, upon consideration of the foregoing motion, it is hereby ordered that (1) a rule is issued upon Star Trucking, LLC and Class 8 Shops, LtC, to show cause why Szivek Enterprises, LLC is not entitled to the relief requested; (2) Star Trucking, LLC and Class 8 Shops, LLC shall tile an answer to the motion within twenty days of the date of this order; (3) if the Defendants fail to tile an answer to the motion, Szivck Enterprises, LLC's motion shall be granted. BY'~O~ c. \\ -~---------~ J. 1:~270.1 3,~iI)6 I: IS \'1\1 --;:'."'--",):"18 S I : I Pd L I IJV!l9GDZ ,itJ1lO::c.":.C,:d 3:-11 :10 38!Jcii)-(l:nl.:l David J. Lanza J.D. No. 55782 2157 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 Attorney for Defendants SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 06-773 v. CIVIL ACTION - LAW STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, Defendants PRELIMINARY OBJECTIONS OF DEFENDANTS I. DEMURRER 1. Plaintiff fails to state a claim upon which relief can be granted. 2. Plaintiff fails to set forth a proper claim based on "quantum meruit." Wherefore, Defendants requests that this Honorable Court enter judgment in favor of Defendants. II. MOTION FOR MORE SPECIFIC PLEADING 3. Plaintiff fails to attach the writing upon which the Complaint is based. 4. Plaintiff is required to attach any writing that supports its allegation of an agreement pursuant to Pa R. C. P. 1019(h). . Wherefore, Defendant requests that this Honorable Court enter an order striking the aforesaid Complaint. ReSpeCtfrlY. Xitted' ) I ! , : David J. Lanza Attorney I.D. No. 55782 2157 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendants 110-6 CERTIFICA TE OF SERVICE AND NOW, this 30th day of March, 2006, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Joel Hopkins, Esquire 2 North Second Street 7'h Floor Harrisburg, PA 17101-1604 By: aJ;C David Lanza 110-6 C) c "" r:": ::..,,~ ~.., :~J r--._ ,~ (J-; t"J) }I 'd Davl J. Lanza !.D. No. 55782 2157 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 Attorney for Defendants SZIVEK ENTERPRISES, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA NO. 06-773 v. CIVIL ACTION - LAW STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, Defendants DEFENDANTS' ANSWER TO MOTION TO STRIKE 1. Denied. It is denied that Plaintiff constitutes a valid entity as described in this averment. 2. Admitted. 3. Admitted. 4. Admitted in Part. Denied in Part. This averment (and this Motion) is moot, as Plaintiff has filed an Amended Complaint. This Motion became moot as soon as Plaintiff filed the Amended Complaint. 5. Admitted in Part. Denied in Part. This averment (and this Motion) is moot, as Defendants have filed Preliminary Objections to Plaintiff's Amended Complaint. 6. Admitted in Part. Denied in Part. This averment (and this Motion) is moot, as Defendants, through licensed counsel, have filed Preliminary Objections to Plaintiff's Amended Complaint. 7. Denied. Defendants have filed Preliminary Objections through the undersigned Counsel. .J 8. Denied as a conclusion of law. By way of further denial, Defendants have filed Preliminary Objections through the undersigned Counsel. 9. Denied. Defendants have filed Preliminary Objections through the undersigned Counsel. Wherefore, Defendants request that this Honorable Court dismiss Plaintiff's Motion. Res~ectfullY ibmitted, 0) IL David J. Lanza Attorney 1.0. No. 55782 2157 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendants 110-6 )1. CERTIFICA TE OF SERVICE AND NOW, this 30th day of March, 2006, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Joel Hopkins, Esquire 2 North Second Street ih Floor Harrisburg, PA 17101-1604 By: ~Il David Lanza 110-6 ~} .:::; '';:''-~ ~~;~ :::J ~;~: ;I~ ,-" r~,) CI"'. ..c :< . SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff, NO. 06-773 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. PLAINTIFF'S RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW, comes Plaintiff, Szivek Enterprises, LLC and Robert Szivek, by and through their counsel, and responds to the Defendants' Preliminary Objections as follows: I. DEMURRER 1. Denied as a conclusion of law to which no response is required. 2. Denied as a conclusion of law to which no response is required. II. MOTION FOR MORE SPECIFIC PLEADING 3. It is denied that the Amended Complaint failed to attach a writing upon which the Complaint is based. The writings upon which some of the Plaintiffs claims are based were attached to the original Complaint filed with this Court and served upon the Plaintiff, and were incorporated into the Amended Complaint by reference. See Amended Complaint, ~~ 6, 12. To the extent the Defendant's non-specific objection is a reference to the Sales Agreement referenced in paragraph 39 of the Amended Complaint, such agreement is not alleged to be based on a written document or agreement. 123021.14/6/0611.20AM 4. Denied as a conclusion of law to which no response is required. By way of further answer, all written agreements upon which any of the Plaintiffs claims are based were attached to the original Complaint, and incorporated into the Amended Complaint by reference. Finally, the alleged failure to attach a writing upon which a claim is based does not implicate a motion for a more specific pleading, but would at best constitute a failure to adhere to a rule of court. See Pa. R. Civ. P. 1028(a)(2). Defendant's request for a more specific pleading is therefore irrelevant to the "facts" alleged. WHEREFORE, Szivek Enterprises, LLC, hereby respectfully requests this Court deny the Defendant's Preliminary Objections, with prejudice. Respectfully submitted, SAUL EWING L~~ ~_ r=-" Joel C. Hopkins, Esq. Attorney ID No. 85096 2 North Second Street, 7'h Floor Harrisburg, PAl 71 0 I (717) 257-7500 -' Dated: April 6, 2006 Attorneys for Plaintiff Szivek Enterprises, LLe 12J021.14/6/0611Z0AM , ~ CERTIFICATE OF SERVICE I, Joel C. Hopkins, hereby certify that on April 6, 2006, I served a true and correct copy of the foregoing document by first class mail, postage prepaid upon the following persons: David J. Lanza 2157 Market Street Camp Hill, PA 17011 ..~ O/' , --'. ....;-. ....~ G -it "- Joe C. Hopkms 123021,14/6/0611.20AM r"-__~ r:- ~_:> , <", --j; ,;::/.... :"..... _.J I--j c) PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) SZIVEK ENTERPRISES, LLC, (Plaintiff) vs. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, (Defendant) No. 06-773 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendants 2. Identify counsel who will argue case: (a) for plaintiff: Address: Joel C. Hopkins 2 North Second Street, 7'h Floor, Harrisburg, PA 17101 (b) for defendant: David J. Lanza Address: 2157 Market Street, Camp Hill, P A 17011 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 17,2006 q pc~ Attorney for Plaintiff Dated: April 6, 2006 ~,,"- '-' ',\ .;-\ SZIVEK ENTERPRISES, LLC, IN COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. 06-0773 CIVIL STAR TRUCKING CO., LLC and CLASS 8 SHOPS, LLC Defendants CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 13'h day of April, 2006, in consideration of the Plaintiffs Motion to Strike Answer and the Defendant's Response thereto: the Plaintiff's Motion to Strike Answer is DENIED. By the Court, ~'\ M. L. Ebert, Jr., ~el C. Hopkins, Esquire Attorney for Plaintiff ~id J. Lanza, Esquire Attorney for Defendants " f\"()\' D~~ bas ?s:c Ab ]':' l. ~ I ,:]11 . " 17 :l;tl - .. SHERIFF'S RETURN - REGULAR .... CASE NO: 2006-00773 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SZIVEK ENTERPRISES LLC VS STAR TRUCKING CO LLC ET AL WILLIAM CLINE , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon STAR TRUCKING CO LLC the DEFENDANT , at 1530:00 HOURS, on the 15th day of February, 2006 at 7044 HARRISBURG PIKE CARLISLE, PA 17013 by handing to BOBBIE JO WHITCOMB, OFFICE MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge So Answers: 18.00 4.40 .39 10.00 .00 32.79 r'~~<t:~~ R. Thomas Kline Sworn and Subscribed to before 02/17/2006 SAUL EWING By: d v/ Deputy Sheriff me this I~ day of ~ I ,}()U~ A.D. L;~~h(2o~:Jlu" ~- . SHERIFF'S RETURN - REGULAR " CASE NO: 2006-00773 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SZIVEK ENTERPRISES LLC VS STAR TRUCKING CO LLC ET AL WILLIAM CLINE , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CLASS 8 SHOPS LLC the DEFENDANT , at 1530:00 HOURS, on the 15th day of February. 2006 at 7044 CARLISLE PIKE CARLISLE, PA 17013 by handing to BOBBIE JO WHITCOMB, OFFICE MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 .00 .00 10.00 .00 16.00 ?'~~ R. Thomas Kline 02/17/2006 SAUL EWING Sworn and Subscribed to before By: ~~_vc: - ~ Deputy Sheriff me this ),0)- ~ ( day of ;}...(yo (~ A. D. ~ ()h" r. ilt 1/1 . {.dl, I p~othonotary ,~ SZIVEK ENTERPRI ES, LLC, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LA W NO. 06-773 CIVIL STAR TRUCKING C ., LLC, and CLASS 8 SHOPS, LL Defendants IN : DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW, thi BEFORE HESS. OLER. AND EBERT. 11. ORDER ,., day of June, 2006, the preliminary objection of the defendants in the natur of a motion for a more specific pleading is GRANTED. The plaintiff is given twenty (20) days ithin which to file an amended complaint attaching the writing(s) upon which the complaint is The preliminary objection of the defendants in the nature of a demurrer is DENIED. ~l C. Hopkins, Esquir For the Plaintiff ~vid J. Lanza, Esquire For the Defendants :r1m BY THE COURT, ~& O'.9('j 911 :01 9 - Nnr 9aoz JL!\/!('Ii"'-;;'_'I(-"i,,.{ :Ji-l'l ..Ic"} AO'l.).Vl-k." I.,. /".".., .;. ';:1 :J8L:l..;O-crni:J .~ ~ SAUL EWING LIP Joel C. Hopkins, Esquire Pa. Attorney I.D. No. 85096 Penn National Insurance Plaza 2 North Second Street, 7th Floor Harrisburg, P A 17101 (717) 257-7525 (717) 257-7590 (facsimile) SZIVEK ENTERPRISES, LLC, Plaintiff, v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, Defendants. To: Star Trucking Co., LLC 7044 Carlisle Pike Carlisle, PA 17013 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 773 NO. 06-ffi. CIVIL ACTION-LAW NOTICE TO PLEAD Class 8 Shops, LLC 7044B Carlisle Pike Carlisle, P A 17013 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Amended Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Dated: June 16, 2006 120866.3 SAUL EWING LLP A/ ~ -PC~~ Joel C. Hopkins, Esquire Attorney J.D. Number 85096 2 North Second Street, 7th Floor Harrisburg, PAl 71 0 1 (717)257-7500 . Attorney for Plaintiff -1- SAUL EWING LIP Joel C. Hopkins, Esquire Pa. Attorney I.D. No. 85096 Penn National Insurance Plaza 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) Attorneys for Plaintiff SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff, NO. 06-733 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the forgoing 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 OR KNOW A LA WYER, THEN YOU SHOULD 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, Pennsylvania 17013 Telephone No. (717) 249-3166 120866.3 A VISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted de sea defenderso de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia esrita en persona 0 por abogado y presentar en la Corte por escrito sus defensas 0 sus objectiones alas demandas en su contra. Se Ie avisa que si no se defiende, el caso puede porceder sin usted y la Corte puede decidir en su contra sin mas aviso 0 notificacion por cualquier dinero reclamado en la demanda 0 por cualquier otra queja 0 compensacion reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIERDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE 0 NO CONOCE UN ABOGADO, V A Y A 0 LLAME A LA OFICINA EN LA DIRECCION ESRIT A ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone No. (717) 249-3166 120866.3 SAUL EWING LIP Joel C. Hopkins, Esquire Pa. Attorney I.D. No. 85096 Penn National Insurance Plaza 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) Attorneys for Plaintiff SZIVEK ENTERPRISES, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs, NO. 06-733 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. SECOND AMENDED COMPLAINT AND NOW, comes Plaintiffs Szivek Enterprises, LLC and Robert Szivek, by and through their counsel, and files the within Amended Complaint against Defendants, Star Trucking Company, LLC, and Class 8 Shops, LLC, and in support thereof, avers as follows: Parties 1. Plaintiff Szivek Enterprises, LLC, is a Pennsylvania limited liability company with its principal place of business at 7710 Carlisle Road, Wellsville, York County, Pennsylvania. 2. Defendant Star Trucking Company, LLC ("Star"), is believed and therefore averred to be a Pennsylvania limited liability company with its principal place of business located in Carlisle, Cumberland County, Pennsylvania. -2- 3. Defendant Class 8 Shops, LLC ("Class 8") is believed and therefore averred to be a Pennsylvania limited liability company with its principal place of business located at 7044 Carlisle Pike, Carlisle, Cumberland County, Pennsylvania. Backe:round 4. Star Trucking Company is authorized by the United States Department of Transportation to act as a common carrier of property by motor vehicle in interstate or foreign commerce. 5. Szivek Enterprises is an owner / operator of power equipment (tractors) used in the transportation of goods in interstate or foreign commerce. 6. On or about September 22,2005, Szivek Enterprises and Star Trucking entered into a Contractor Lease Agreement, a copy of which is attached hereto as Exhibit A and incorporated herein by reference. 7. Pursuant to the terms of the Lease Agreement, Szivek Enterprises agreed to lease a 1997 International 9400 Tractor with a driver or drivers to Star Trucking for the purpose of providing motor carrier services to the shipping public. 8. The Lease Agreement provided that Star Trucking was to make shipments available to Szivek Enterprises under Star's certificate of authority to operate as a common carrier, and that Szivek Enterprises was to provide the equipment and personnel to complete those shipments. 9. In exchange for its services under the terms ofthe Lease Agreement, Szivek Enterprises was to receive 80% of the revenue for each trip undertaken on Star Trucking's behalf, less certain chargebacks as set forth in the agreement. -3- 10. According to the Lease Agreement, Star Trucking was to pay Szivek Enterprises on the 2nd and 4th Friday of each month for all work performed during the 14 days prior to the date of such payments. See Lease Agreement, ~ 13. 11. Star Trucking was also to provide Szivek Enterprises with the relevant information upon which Szivek's compensation under the Lease Agreement was calculated at or before the time Szivek Enterprises was to be paid for such services. Id., ~ 14. 12. On or about November 1, 2005, Szivek Enterprises signed a second Contractor Lease Agreement containing essentially the same terms as the September 22, 2005 agreement, but increasing the percentage of total revenue Szivek Enterprises was to receive as compensation for its services and changing the amounts of certain chargebacks. A true and correct copy of the November 1,2005 Contractor Lease Agreement is attached hereto as Exhibit B and incorporated herein by reference. 13. Szivek Enterprises has not been provided a fully-executed copy of the November 1, 2005 Contractor Lease Agreement signed by Star Trucking. 14. In October of2005, Szivek Enterprises entered into an agreement to purchase two 1997 International 9400 series trucks from Star Trucking Company for a total cost of $20,000 (the "Sales Agreement"). A copy of a Sales Agreement, titled "Equipment Purchase Agreement" is attached hereto as Exhibit C and incorporated herein by reference. 15. Szivek Enterprises paid Star Trucking Company in full for the purchase of the aforementioned trucks. 16. Szivek Enterprises has taken delivery of one of the aforementioned trucks, while the other truck remains in the control of Star Trucking, who has refused, despite repeated demands, to provide Szivek Enterprises the keys or access to the vehicle. -4- 17. Between October 12,2005, and November 17, 2005, Szivek Enterprises accepted various shipments under the terms of the above Lease Agreement(s), and was entitled to be compensated for those shipments as set forth therein. 18. As of this date Star Trucking has not paid Szivek Enterprises for services provided under the terms ofthe Lease Agreement(s) after October 22,2005. 19. In addition to not receiving payment under the terms of the Lease Agreement(s), as set forth more fully above, Szivek Enterprises has not been reimbursed for certain expenses incurred on behalf of Star Trucking under the terms of the Lease Agreement(s), namely, expenses incurred for professional unloading services. 20. As of this date Szivek Enterprises has not received documentation demonstrating the amount of compensation due Szivek Enterprise for all services provided under the terms of the Lease Agreement(s), as required thereby and by federal law. 21. In addition to providing services under the terms of the Lease Agreement(s), Szivek Enterprises also provided hauling services pursuant to an oral agreement with Star Trucking. 22. Specifically, from September 9,2005, to October 12,2005, Szivek Enterprises utilized its power equipment to haul trailers owned or under the control of Star Trucking. 23. Szivek Enterprises also incurred $360.87 in expenses associated with the repair of a damaged tire on one of Star Trucking's trailers while providing the aforementioned hauling services. COUNT I - BREACH OF CONTRACT AGAINST STAR TRUCKING COMPANY. LLC 24. Paragraphs 1 through 23 above are incorporated herein by reference. -5- 25. Star Trucking and Szivek Enterprises entered into a valid and binding agreement whereby Star Trucking agreed to compensate Szivek Enterprises for certain services provided under the terms of the Lease Agreement(s), as more fully set forth above. 26. Star Trucking had a duty under the terms of the Lease Agreement(s) to compensate Szivek Enterprises for services provided thereunder and to provide all documentation supporting such compensation. 27. Star Trucking has unjustifiably failed to compensate Szivek Enterprises for all services provided under the terms of the Lease Agreement(s), or to provide Szivek Enterprises with documentation supporting all compensation due and owing thereunder. 28. Star Trucking's failure to perform under the terms of the Lease Agreement(s), as more fully set forth above, constitutes a material breach thereof. 29. As a direct and proximate result of Star Trucking's breaches of the Lease Agreement(s), Szivek Enterprises has incurred and will incur damages in an amount that exceeds the compulsory arbitration limit set by this Court. 30. Szivek Enterprises has fulfilled all of its obligations and satisfied all conditions precedent to payment under the terms of the Lease Agreement(s). 31. Star Trucking and Szivek Enterprises entered into a valid oral agreement whereby Star Trucking was to compensate for Szivek Enterprises for those hauling services identified above (the "Hauling Agreement"). 32. As part of the aforementioned agreement, Star Trucking implicitly agreed to pay Szivek Enterprises for all costs and expenses incurred on Star Trucking's behalf. COUNT II - BREACH OF CONTRACT AGAINST STAR TRUCKING COMPANY. LLC 33. Star Trucking had a duty under the terms of the Hauling Agreement to compensate Szivek Enterprises for services provided thereunder and to reimburse Szivek Enterprises all costs and expenses incurred on Star Trucking's behalf. 34. Star Trucking has unjustifiably failed to compensate Szivek Enterprises for all services provided under the terms of the Hauling Agreement. 35. Star Trucking's failure to perform under the terms of the Hauling Agreement, as more fully set forth above, constitutes a material breach thereof. 36. As a direct and proximate result of Star Trucking's breaches of the Hauling Agreement, Szivek Enterprises has incurred and will incur damages in an amount that exceeds the compulsory arbitration limit set by this Court. 37. Szivek Enterprises has fulfilled all of his obligations and satisfied all conditions precedent to payment under the terms of the Hauling Agreement. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Star Trucking Company, LLC, for compensatory damages in an amount exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. 38. Paragraphs 1 through 37 above are incorporated herein by reference. 39. Star Trucking and Szivek Enterprises entered into a valid and binding agreement whereby Star Trucking agreed to sell Szivek Enterprises two 1997 International 9400 series trucks at a cost of$10,000 each (the "Sales Agreement"). -6- 40. Star Trucking had a duty under the terms of the above agreement to deliver each of the aforementioned trucks to Szivek Enterprises at the time Star Trucking received payment therefore. 41. Star Trucking has unjustifiably failed to deliver one of the aforementioned trucks to Szivek Enterprises, despite repeated demands by Szivek. 42. Star Trucking's failure to perform under the terms of the Sales Agreement, as more fully set forth above, constitutes a material breach thereof. 43. As a direct and proximate result of Star Trucking's breaches of the Sales Agreement, Szivek Enterprises has incurred and will incur damages in an amount that exceeds the compulsory arbitration limit set by this Court, including over $36,000 in lost revenue from the use of the undelivered truck. 44. Szivek Enterprises has fulfilled all of its obligations and satisfied all conditions precedent to receiving delivery of the aforementioned truck from Star Trucking. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Star Trucking Company, LLC, for compensatory damages in an amount exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT III - CONVERSION AGAINST STAR TRUCKING COMPANY. LLC 45. Paragraphs 1 through 44 are incorporated herein by reference 46. Szivek Enterprises paid Star Trucking for the two 1997 International 9400 series trucks. -7- -8- 47. Star Trucking has refused to deliver one of the aforementioned trucks to Szivek Enterprises, despite repeated demands from Szivek Enterprises and the fact that the aforementioned truck is rightfully the property of Szivek Enterprises. 48. Star Trucking has deprived or interfered with Szivek Enterprise's use or possession of its property without any legal justification. 49. As a direct result of Star Trucking's conversion, Szivek Enterprises was injured in an amount that exceeds the compulsory arbitration limit set by this Court. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Star Trucking Company, LLC, for compensatory damages in an amount exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT IV - PROMISSORY ESTOPPEL AGAINST STAR TRUCKING COMPANY. LLC 50. To the extent not inconsistent herewith, paragraphs 1 through 49 above are incorporated herein by reference. 51. Szivek Enterprises pleads the within cause of action in the alternative. 52. Star Trucking, acting through its authorized agents, expressly and impliedly promised Szivek Enterprises that it would pay for the services provided by Szivek Enterprises, as more fully set forth above. 53. Star Trucking received Szivek Enterprise's services without objection or comment, and communicated with Szivek Enterprises in a manner designed to cause Szivek Enterprises to believe it would be paid the full amount due and owing under the terms of the Lease Agreement(s) and the Hauling Agreement, as set forth therein. -9- 54. Star Trucking should have reasonably expected that its actions and promises would induce Szivek Enterprises to continue performance under the terms of the Lease Agreement( s) and the Hauling Agreement. 55. Star Trucking's promises and directions did, in fact, induce Szivek Enterprises to provide the services set forth above. 56. Szivek Enterprise's reliance on Star Trucking's promises and directions was reasonable under the circumstances and has resulted in detriment to Szivek Enterprises, as Star Trucking has wrongfully withheld payment for the services provided under the terms of the Lease Agreement(s) and the Hauling Agreement. 57. Injustice can only be avoided by enforcement of Star Trucking's promises to compensate Szivek Enterprises for the services provided to Star Trucking in reliance upon its promises and directions. 58. As a direct, proximate and foreseeable result of Star Trucking's actions, Szivek Enterprises has incurred and will incur damages in an amount that exceeds the compulsory arbitration limit set by this Court. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Star Trucking Company, LLC, for compensatory damages in an amount exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT V - UNJUST ENRICHMENT I QUANTUM MERUIT AGAINST STAR TRUCKING COMPANY. LLC 59. To the extent not inconsistent herewith, paragraphs 1 through 43 above are incorporated herein by reference. 60. Szivek Enterprises pleads the within cause of action in the alternative. -10- 61. Szivek Enterprises provided services to Star Trucking, as set forth above. 62. Star Trucking expressly solicited Szivek Enterprises and requested that it provide the services as set forth more fully above. 63. Star Trucking accepted the aforementioned services from Szivek Enterprises and retained the benefit of those services. 64. Star Trucking knew at all times that Szivek Enterprises did not provide the aforementioned services gratuitously, and that Szivek Enterprises reasonably expected compensation for the services provided. 65. Despite repeated demands to be paid for the above services, Star Trucking has refused to pay Szivek Enterprises for the benefits conferred upon it. 66. By reason of the foregoing, Star Trucking has wrongfully and unjustly secured material benefits from Szivek Enterprises in such a manner that it would be unconscionable for Star Trucking to retain those benefits without just compensation to Szivek Enterprises . 67. Szivek Enterprises is entitled to the reasonable value of the services provided to Star Trucking, for which Star Trucking has not been compensated. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Star Trucking Company, LLC, for compensatory damages in an amount exceeding the compulsory arbitration limit setby this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT VI - BREACH OF CONTRACT AGAINST CLASS 8 SHOPS. LLC 68. Paragraphs 1 through 67 are incorporated herein by reference. -11- 69. It is believed and therefore averred that Class 8 Shops shares common ownership and management with Star Trucking. 70. Class 8 shops is in the business of servicing and repairing transportation power equipment (tractors) and trailers used in interstate commerce. 71. In October and November of2005, Szivek Enterprises had two 1997 International 9400 power units serviced by Class 8. 72. On or about October 26, 2005, Szivek Enterprises paid Class 8 $2,000.00 by certified cashier's check #2123396 for work done on the aforementioned power units prior to October 12,2005. 73. As of the date of this filing, Szivek Enterprises has not been fully invoiced for the work done by Class 8 on the two identified power units, nor has Szivek received a receipt acknowledging the October 26, 2005 cash payment. 74. Class 8 and Szivek Enterprises entered into a valid and binding agreement whereby Class 8 was to perform certain service and repair work on two 1997 International 9400 power units owned by Szivek Enterprises, as more fully set forth above. 75. Class 8 had a duty under the terms of the parties' agreement to only accept payment for services performed on Szivek Enterprise's behalf, and to provide all documentation supporting such right to payment. 76. Class 8 has unjustifiably failed to provide Szivek Enterprises with invoices demonstrating all work performed under the terms of the parties agreement, or to justify its entitlement to the payments made by Szivek Enterprises. 77. Class 8's failure to perform under the terms of the parties' agreement, as more fully set forth above, constitutes a material breach thereof. -12- 78. As a direct and proximate result of Class 8's breaches ofthe parties' agreement, Szivek Enterprises has incurred and will incur damages in an amount exceeding the compulsory arbitration limit set by this Court. 79. Szivek Enterprises has fulfilled all of his obligations and satisfied all conditions precedent under the terms of the parties' agreement. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Class 8 Shops, LLC, for compensatory damages in an amount exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. COUNT VII - UNJUST ENRICHMENT I QUANTUM MERUIT AGAINST CLASS 8 SHOPS. LLC 80. To the extent not inconsistent herewith, paragraphs 1 through 79 above are incorporated herein by reference. 81. Szivek Enterprises pleads the within cause of action in the alternative. 82. Szivek Enterprises paid Class 8 Shops as set forth above. 83. Class 8 Shops solicited Szivek Enterprises to provide compensation for the services as set forth more fully above. 84. Class 8 accepted the aforementioned payments from Szivek Enterprises and retained the benefit of that payment. 85. Class 8 knew at all times that Szivek Enterprises did not provide the aforementioned payments gratuitously, and that Szivek Enterprises reasonably expected to receive services in exchange therefor. -13- 86. Despite repeated demands to be reimbursed all amounts paid by Szivek Enterprises for which no service was provided, Class 8 has refused to reimburse Szivek Enterprises for the benefits conferred upon it. 87. By reason of the foregoing, Class 8 has wrongfully and unjustly secured material benefits from Szivek Enterprises in such a manner that it would be unconscionable for Class 8 to retain those benefits without just compensation to Szivek Enterprises. 88. Szivek Enterprises is entitled to the reasonable value of the payments made to Class 8 for which no services have been provided. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court enter judgment in its favor against Class 8 Shops, LLC, awarding compensatory damages, together with interest and costs, including reasonable attorneys' fees and expenses (as allowable by law), and such further relief as this Court deems just and appropriate. COUNT VIII - CONVERSION AGAINST CLASS 8 SHOPS. LLC 89. Paragraphs 1 through 88 are incorporated herein by reference 90. Szivek Enterprises paid Class 8 for work on the two power units identified above in an amount greater than that required under the terms of the parties' agreement. 91. Class 8 has not refunded to Szivek Enterprises the amount of its overpayment, as more fully set forth above, which amount is rightfully the property of Szivek Enterprises. 92. Class 8 is also currently in possession of one of the two power units identified above, and has refused, despite repeated demands, to turn the unit over to Szivek Enterprises. 94. As a direct result of Class 8's conversion, Szivek Enterprises was injured 93. Class 8 has deprived or interfered with Szivek Enterprise's use or possession of its property without any legal justification. in an amount that exceeds the compulsory arbitration limit set by this Court. WHEREFORE, Szivek Enterprises, LLC, respectfully requests this Court render a judgment in its favor and against Class 8 Shops, LLC, for compensatory damages in an amount exceeding the compulsory arbitration limit set by this Court, together with interest and costs, including expenses, and such further relief as this Court deems just and appropriate. Respectfully submitted, SAUL EWING LLP g~c~ Joel C. Hopkins, Esquire Saul Ewing LLP Attorney J.D. No. 85096 2 North Second Street, 7th Floor Harrisburg, P A 17101 (717) 238-7525 Attorneys for Plaintiffs Date: June 16, 2006 -14- VERIFICATION I. Robert Szivek, being subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities, hereby state that the facts set forth in the foregoing Second Amended Complaint are true and correct to the best of my knowledge, information and belief. By: ..{t Date: June f"l. '2006 -15- CERTIFICATE OF SERVICE I, Joel C. Hopkins, hereby certify that on June 16, 2006, I served a true and correct copy of the foregoing document by first class mail, postage prepaid upon the following persons: David J. Lanza, Esquire 2157 Market Street Camp Hill, PA 17011 4. ---(>C~, oel C. Hopkins 120866.36/15/06 5.20 PM I .. () (-) ST.Jl1t T1tUCXIN{1 COMP.7t:Ny, LLC . CONTRACTOR LEASE AGREEMENT (49 C.F.R. Part 376) This Agreement is eflective as of this 1.1.. ...tday of ~-.k..\.. t' . .20 &-) at It:- A.~ (amIpm) by And between S (.,\~ € V\~t t r~"~ \U-J.... referred to hereafter as --Contractor", located at ")~\-6 ~c.\;~ O--~. Qp (Street) \) ,).."~,, 'x.., \""\ "l.Io<;' ,,,...,, And ~......... N ~.. ,\4 . ,-,-", ,referred (City) \ (State) (Zip) . To as ".Carricr," lucatedat ,<)~'-\ ~~i'~<o,Jf~~~ ~~,~ (Skeet) (City) ,~ (State) . \\~\'\ (Zip) Contractor is the 0\\11er of the equipment described in Appendix A to this Agreement and drives and/or wiU provide drivers tiIUy qualitied Wider all applicable tederal and state laws to operate that equipment ill interstate and/or intrastate commerce.. Carner is in the business of otlenng and providing motor cauier services to the shipping public and desires to retain the equipment and drivel' services of Contractor to meet ils transportation commitments. CatTier is authorized to conduct operations in interstate and/or intrastate conmlerce pW'stJant to operating authorities issued by the appropriate tederal and :,1ate agencIes Contractor desires to lease ils equipment with a illlver or drivers to Carrier, and Carrier desires to lease that equipment and driver( s) to meet ils transportation requirements tor ils customers, and tor good and la\\ful consideration, the pal1ies agree as tolIows: I. Copies of this Aereement. This Agreement shall be executed in triplicate. The Canler will give one executed copy of this Agreement to Ule Contractor, retain one executed copy tOr ilseU; and the third executed copy of this Agreement will be placed in the leased equipment tOr the dw-ation of the lease. 2. Receipts tor Equipment. The equipment which Contractor will lease to CWTier, pw'suant to the tcrms and conditions ot this agreement. is identitied in Appendix A attached hereto and made a pal1 hereof Receipts specitically identil)"ing that equipment wid specil)-ing the date and time of day possession is transtelTed shall be given to Contmclor by the Canier. A receipt may be transmitted by mail, telegraph., or othcr. similar means of communication. Upon temJ.iuation of this lease, or when possession by the CalTier of a unit of equipment identified in the addendum ends, the Canlcr' shall give Contactor a receipt evidencing the date and time of the rdUlll of the equipment to Contractm" s conkoL .) Exdlbive Possession and Control by Contractor. Conkactor shall have the exclusive poSseSSiOll control WId use of the equipment and shall assume complete responsibility tor the operation of the equipment, tor the dw'ation of the lease 4. Identification of Euuioment. Dwing the period of Ule lease, and while the equipment is being operated on behalf of the Callier, the equipment shall be identitied in accordance with all applicable tederal and state regulations_ Upon the tcnninatiol1 of the lease, Contractor shall remove all such idcrltification The Contractor shall promptly retum such identification to the Can"icr', or may provide a letter to the CatTier ceI1il)'illg removal of said idcrltiticatioll deVICes hum the equipment or that said devices have 00en lost or stolcrl. In the event the equipment is operated on behalf of wlyone other than tbe CWl1cr- dw'ing the period oUhe lease, such as in the event of a T rip-Lease_ all identiticatwn shall be covered and signage of tbe Trip-Lease tal1icr" displayed instead 5. Trip-LeasllU! of EQuipllIent. The Contractor may. trom time-tCJ-time, Trip-Lease to anothcr' motor CWTler who meets all the requirements setlrn1h in 49 C.F.R. Part 376. contingent upon authorization of CWTicr-. However, undcr' no circwllstances shall tbe CalTlcr' Tri~Lease the equipment to another canicr' without the Contractor's express \\-llUen consent. ",hich consent shall not be unreasonably withheld. 6. Status of Contractor as fndeDt:ndent Contractor Contractor shall be an indept.."ndent contractor witb respect to the transpoltation operations conducted on behalf of the CWTier at all times during the penod this lease IS in eUcct. Neithel Contractor nor its employees are to be considcr'ed employees of CWTicr' at any time, except as may be specltied by tederal or state law Neither party is the agent of the otber nor shall neither party have the right to bmd the otllcr- by contract or othelwlse except a..-; herein ,,-peciticaIly provided Contractor has the nght to decline allY load oUcred by Cw'ricr-. wilhout / /;~:~; """""=;00; ind""'"g, ""' ""t lim""" t"_ ~""". "",m1ti~, ,du~1 t" di'pot,h, oc ...,,'~ , / C) () . . disciplinary or administrative actions. Contractor agrees to cooperate with carrier in a reasonable manner to insw-e sale and timely service to its customer. Contractor's Initials Carrier's Initials: 7. Record of Transactions. In compliance with 49 C.F.R. * 376.11 (d)(l)(or any successor regulation), Cmlier sha.lI prepare and keep records covering each trip lor which Contractor's equipment is used in Canier's service. Those documents shall contain the name and address of the Cootractm., tlte point-ol:origin, the time and date of departure, and tlle point of linal destination. Further, C.an-ier shall have to present, on the leased equipment during its operation, documents containing the above-sptxitied iut0l111ation identilYing the lading, and acknowledging tltat the transportation is pertOnned under Call'ier's authority. Those docwuents shall be preserved by Carrier as part of its tnlnspOl1ation records. 8 Canier's Resoonsibilit\' to Provide Shioments. The Carrier agrees to make shipments available b'om time-to-time tor transportation by tlte Contmctor. The Callier sball exercise every reasonable eUort to make sutlicient shipments available so that tlte Contractor shall be able to keep the Equipment in reasonably constant use w1der the tenns of this Agreement although this shall not be construed as an Agreement by the C<lITier to lUrnish mlY specitic number of loads, or powlds ot freight tOr traru.'portation by the Contractor at any pal1icular time or place. 9 ComDensation to Contractor. Compensation lOr the lease of tlte equipment and transportation services provided by Contractor shall be at the mles specitied in Appendix B attached hereto <lIld made a part hereof 10. Com nsation tor Loadi a UnloadiJt Detention and Accessorial Services. \\tltenever 'sible Shipper will pertorm loading at origin and receiver will pedimn WIloading at de:.1ination. C.anier is responsible lOr the tull cost of <lII) loading or Wlloading services incWTed. Should Contrdctor be requested and agree to pertorm the loading or wtloading of a shipmenl Contactor will be compensated by C<lIrier at the rate specilied in Appendix B. Detention time will also be compensated by C<lIlier at tlte rate specilied in Appendix B. Contractor shall be entitled to receive 80 pt:l'cent (80041) of the sums received by the Camer lor accessorial services provided by tlte Contractor, provided such sum is in an antount equal to the charges specilied in Appendix B. Contractor is required to submit documentation & authorization as specified by the c<lITier or the customer in order to be compensated. II. When oossible ComDensation lOr Emoty Mileage. Empty mileage incurred by ContractOl' in the service of the C.anier. specitically those miles operated to make a pickup or retwn hum a delivery, or proceeding between loaded lUns, will be compensated by Carrier at the rate set torth in Appendix B Contractor's driver will keep a record of all such miles identilYing tlte origin and destination of the shipment, and the point to which the equipment is n:tWlted lor positioLUng tu handle additional shipments tor tIte Carrier. 12. Fuel Sw'chm'ge The Camer shall pass on to the Conlractor one hwtdred percent (\()()%) of au)' luel sw-charge imposed by the CatTier upon its tran:''portation cw,10mer (shipper, motor carrier. broker, or treight IOrwarder) when such a swdlarge is imposed pur:''Ull.Ilt to any law and/or an} agreement between the Carrier and its tf'cJ.l1sportation customer. 13 Payments to Contraclor. CmTier shall pay Contractor on the 2nd a.nd -Jtll Ftiday of each month covering all work performed I-J days prior to the bi-weekly settlement date. Contractor submits all documents required lor CatTier to secw'e payment Irom Carrier's customers. Those documents are limited to logbooks required by the Department of Trallsportalion and those documents neccssmy tor Carrier to seClU'e payment Ii'om its tmlb'portation customer. It is the responsibility of the Callier tu noli!)' the Contractor at the time of dispatch mtd on the bill of lading that a particular shipment is to be a C. O. D. shipment in the case of CO.D shipments only, the docWllents necessary to seClU'e payment to the Contractor shall include Ute cel1i!ied check or money order due to Canier. l-J. Docwllentatiun SUPD0I1inl! Contractor's Compensatiun. If the Cuntractor's compensation, as specified in Appendix B. IS based upon a percentage of the revenue received by the Carrier, Carrier will pmvide Contractor, betore or at tlte time of settlemenl a copy of the applicable rated customer invoice, bills of lading. taritk or mle quotes trom which the rates or charges sho\\lI on the C.an-ier's customers' invoice m'e computed. or a computer-genenued document contaming the same intomlation Acceptance of compensation without receipt of invoices. bills of lading. tariUil or rate quotes, will nol constitute a waivt:r uf Contractor's nght to such documents wtder tederal regulation In the case of chm'ges based on a CtJntract. the Contractor shall be proVided a copy of the actual documentation used in producing a rated Ii'eight bill lor tIte Carrier's cllstumer When a computer-generated docwllent is provided, Contractor shall be pennitted by the CmTier 10 view tlwing normal business hours, a copy of the actual docWllent( s) wlderlying the computer-generated document If the Cuntral:tor's wmpellsation is based upon mileage, the parties will se '1 ae show in the {circle one or Iii . 1k Rand McNally Mileage Guide. PC Miler Route , Household Mover Guide or Caniers automated mileage ;~~r 2 ~ ( ) () Contractor's hutials: Carrier's Initials: to calculate the mileage traversed between the origin and destination of the shipment. The dispatcher will notity tile Contractor of the estimated mileage at time of dispatch. If the actual miles traveled by the Contmctor, through no limit of the Contractor, exceed the estimated mileage by more than Hl percent, then the Contractor shall receive additional compensation tOe all miles trdveled in excess of 100 percent of the mileage shown ill the mileage guide at the same rate as is set torth in AppendL\: B hereto. This clause will not apply when contrdCtor operates under a percent of revenue compensation. 15. Inspection of Carrier's Taritls_ Pw'suant to 49 C.F.R * 376.12(g) (or any SUccessor regulation), the Contractor is pennitted to examine copies of the Carrier's (taritf or in the case of contract carriers, other documents trom which rates and charges are computed, provided that where rates and charges are computed trom a contract, only those portions of the contract containing the same il1tormation that would appear on a rdted treight bill need be disclosed} dwing nOlmal bus.ine~ls hoW's at theCanier's tenninal or other pIace(s) ofbusilless. 16. Exoenses hlcwred in Ooeratinl!. EQuioment. Except as may otherwise be provided in this agreement, Contractor shall bea.r the opel-ational expenses incun-ed in performing the transportation services requested by Carrier Wlder this lease agreement. Those expenses shall consi::.1 of and are limited to: tueL tilel taxes, penllits of all t} pes, tolls, terries, base plates and licenses.. lines and penalties resulting solely lrom the acts or omissions of Contractor, insurance costs relating to insuf'clllce coverage required to comply with this agreement as set out in Appendix D, tederal highway use tax on the equipment, federal. provincia.l, state or city income taxes, and any seU:.emplo)ment or pa)TolI t.a..xes~ and any sales, use, excise and other taxes due and owing to ownership or operation of the equipment ContrdCtor shall also bear any eXpellscs necessary to maintain the equipment in compliance with all applicable tederal and state saMllaw:> and regulations. Contractor will provide at hislller own expense neces..~} workmen's insurance lOr any dIiver operating contractor vehicles. 17. Base Plates. The Contractor must purchase base plates in his or her O"llname directly from the State. 18. Pw'chase of Items ti'om Can'ieT_ Contractor is not required to purchase or rent an)" products, equipment, or services from Of through the Carrier as a condition precedent or subsequent of entering into or continuing the lease arrangement. If the Contractor is or becomes patty to an equipment purchase agreement or rental contract with the Carrier, or a person or company atfiliated with the CalTieL thell, pursuant to that agreement or contract, Carrier is authorized to make deductions lrom Contractor's compensation eamed WIder this agreement for ::."UCh purchase and/or rental payments in tlle amounts set forth in the schedule of pa)ments in Appendix C aJmexed hereto and made a part hereof ('.arrier- shall not charge Contractor an administrative fee for any service it perfOrms related to Contractor's purchase or rental of any product, equipment, or service through or from the Call'ier Contractor is required to pay any adIuinistrative costs incwred by the carrier Pursuant to the sate and timely operation of the Contmctor vehicle or tor any foods advanced to the Contractor by the Carrier. 19. Chan<:e Backs. Carrier' may not impose charge backs against tilt: compensation due the Contractor except fOr cash advances or tile actual cost to tile Carrier' for providing the specific items identified in Appendix D annexed hereto and made a pat1 hereof Appendix D identilies all items lor which a charge back is authorized that are not otherwise specifically provided for in this agreement and shows how the amowlt is computed tor each item to be charged back to tile Contractor. The Contractor shall be entitled to copies of those docWllents necessary to determine the validity of all items chaJ'ged back against compensation due tlle Contractor. Callier's uuuals 20. Loss and DarIla!!.e Claims. CalTier shall proVIde Contractor with a written explaJlation and itentization of any deductions lor cargo or propel1y da~u~e to be taken from Contractor's compensation Contractorj.,liability lor loss or ~age to cargu traJlspolted on behalf ut Camer IS hnuted to CaJ'go InsW'aJlce deduchbles $ \\ ~ -- per- Ulcldent wher'e It IS determll1ed through inve::.tigation that such loss ur damage is due to the act or negligence of Contractor or its employees. Contractor will be provided a reasonable opportwlity to present to Canier' aJlY documentation or other evidence demonstrating that the loss or damage was 110t due to Contractor's act or omission or that or its employees. Except in the case of concealed loss or damage where the consIgnee did not have a reasonable opportWlity to inspect the goods upon delivery. the presentation or a signed dear delivery receipt will be considered adequate to establish, witllout more, that Contractor was not responsible ttlr the luss or damage lu no event will any deduction ttlr alleged cargo loss or damage be made against the Contractur's compensation wltil all docwuentation sUPpolting the claim has been provided by the Canier', and Contractor has been given · '<a~abl<OP?'r~ { ~ Conttactur's lnittals f/'\~ ( 12'1 l{j Q ~~.< 3 (-') (-') ". 21. Fines. The contractor shall asswne the risks and costs of lines lor overweight and oversize trailers unless the trailers are pre- loaded, sealed, or the load is containerized, or when the trailer is otherwise out of the Contractor's control, except it the violation results from the Contmdor's actions. Moreover, Cani.er will take appropriate action to ensure that its customers observe all applicable lederal and state laws pertaining to the loading of freight on the Contractor's equipment. 22_ Fuel Use Tax Pannents. The Contractor may elect to maintain his or her O~ll IFT A account lor luel taxes. If the Contractor so elects.. Contractor will provide Canier with a cop)" of all fuel tax documentation within 30 days afiec tiling dale. If Contractor elects to maintain his or her OWll IFT A account, Contactor will signil)' by initialing here . If Contractor does not elect to maintain his or her own IFf A account the Calrier will assume n:sporu.ibility lOr tiling fuel use ta.x returns with the Base State in which Contractor's equipment is registered. Contractor shall submit timely reports on limns supplied by the CatTier and lurnish docwuentation lor all miles driven and gallons of fuel purchased on a state- by-state basis. Carrier shall provide Contractor with periodic summaries of credits and debits lOr fuel use ta.xes on a state- b)--state basis. Within thirty (30) days following the close of each quarterly ta.... period, Carrier shall provide a report showing all credits and debits by ta.xing jurisdiction on account of activities of the Contractor dw-ing the reporting period. If the net of credits and debits for all ta.'\ing jwi.sdictions shows that Contractor has a net credit, Carrier shall be entitled such net credit to cover administrative costs in order to protect itself against local. state and lederal audits; if the net of credits and debits for all ta.'\ing jw-isdictions shows that the Contractor has a net debit, Canier shall be entitled to deduct the anlount of such net debit li'Om the Contractor's compensation. 23. Carrier's Insurance Coverage. Carrier is legaUy obligated to maintain insw-ance for the protection of the public. Contractor will, maintain, atld beat- the cost ot: all required insurance covering personal ~w'y, as is required of a motor carrier engaged in interstate commerce by lederallaw and regulations. No portion of the cost of such insurance shall be passed on to Carrier directly or indirectly. 24. uu,'W'ance to be provided by Contractor. Consistent with lederal regulations, Contractor shall not be required to purchase atlY insw-ance hum,. or through, the CalTier and shall be lree to acquire insurance from any UISW'et- as long as it comports with that generally available at the time of contracting in terms of insuf'dnce obligation, exclusions to coverage, elc_ If the Contractor purchases any illSlU'ance coverage lrOln. or through, the Cattier, it will be enumerated Ul Appendix D, atld the Can-ier shall be authorized to charge back the cost to it lor such policies in such amowlts as are specilied in Appendix D. 25. lnSUl'iUlce Documents and 1n10nnation. Ul the event that the Contractor pw'chases atlY insurance coverage from, or through, the Carrier. the Cattier will provide the Contractor with certilicate{ s) of insurance lor each such policy that include the name of the insw'et., the policy number, the ellective dates of the policy, the anlounts atm types of coverage, the actual cost to the Contractor for each l}pe of coverage and the deductible anlowlt lor each type of coverage lor \\'IDch the Contractor may be liable. The Canier shall also provide Contractor with a copy of each such policy TIle Carrier shall also provide Contractor, upon reque~1, copies of those docunlents necessary to determine the validity of any charge or deduction by CatTier lor this lOSUratlce. 26_ Escrow ACCOWll. Catl'iet- shall not retain any lil1lds belonging to Contractor or establish any escrow or reserve accoWlt lor Contractor, nor shall at1)" sums be deducted from ContractOl" s compensation lor the purpose of establishing or maintaining a balance in atl escrow aCCOWlt 27. Notice AllY notice requu-ed or permitted by this agreeruent to the Can-ier shall be deemed conclusively provided wherl hand delivered to Canit:!.' at any of CatTiet., s ternlinals_ or to eithet. the Carner or the Contractor when deposited by either Party ill the United States mail with tir~1 class postage prepaid. properly addressed to the other Patty as lollows Contractor Name S&...,~~ ~,,~.~'..~.. ..\..\-~ Street \!,~ ~ c\,\~ (l.oc.1h City ~~~ ~ . CatTier Name ~ ....." ,..., ~'''~ <.... . ~ '-'\....~ \'''''''~ ~c:u.(',~.) ~~ C .Qo<~'~ Q~ , '"1':) , ~ Street City State State Zip \.,~~-S . '\"\\\ Contractor's Imllals. ~ i/..z!o r Canier's InitIals ~ ~"\.~ t Zip 4 () C) Should the address of either Party change~ notice of the new address must be provided by lirst class mail within live (5) business days of that change. 2&. Entire A2reement - Modilicat.ion. This agreement with the attached Appendices A-D. wtu,-titutes the entire agreemt.."Ilt and understanding between the pwties and shall not be modified, altered, changed or amended in any respect unless in writing and signed by both parties 29. This agreement shall be govemed by the provisions of TiUe 49, P81t B, United States Code, Title 49, P81t 376, and Code of Federal Regulations and, to the extent consistent with lederallaw.> and regulations, by Ule laws of the State of Penru"'Ylvania. 30. Etlective Date and Dunttion of Al!.reemenl This lease shall be e1b:ctive as of the date and time the agreement is executed by both parties and shall continue in etlect until temunated in accordance WiUI the provisions of this agreement It is contemplated that the telDl ofUlis agreement will be tOr- not less than IUlty-tive (45) days Irom the dale of execution and will automatically continue in etlect wltil such time as terminated mutually, or by either party, as provided in this agreement Should Contractor or Carrier breach any of the tenus of this agreement, the other pwty will give written notice of that breach lUId, if not colTected within seven (7J days of the date such notice is provided, can terminate the agreement upon twenty-luw' (24) hours written notice to the other palty. If either party desires to tenuinate the agreement without cause, ten (10) days written notice must be provided to the other party IN WfINESS WHEREOF, the parties hereto have executed this agreement this day of S'yJ12Z- , 20g at (amlpm) and same shall be considered binding upon both parties and shall remain in lUll force and eUect unless and until tenrunated according to the It:lUIS of this agreement 6/t'-r'1Q/41'o-9.J t'/' d)RCR~~f... V\ ~. Nanle - Title 1 C""lmdoc', Initials 4 Carrier's hutials: ~ ~ ~~~~ ~ '-~~< 5 () (C~) UST OF APPENDICES Receipts tor Equipment... ............ ............ .............. ....... ........ ..... ........... .............................. ..... .App. A Specification of Compensation... ...... ..................... ...... ............ '" ......... ...... ..... . App. B Chargeback's for Purchase and/or Rental Payments............ ...... ................ .............................. .App. C Chargeback's for insurance and Other Unspecified Items........................................................App. D Escrows.... ...... ...................... .................. ............ ........................... ......... .................................. App. E 6 () () APPENDIX A Receipts for Equipment (USE ADDITIONAL COPIES AS NECESSARY TO ACCOMMODATE ALL EQUIPMENT) C.arrier acknowledges receipt of the following equipment on the date and at the time stated below: Tractor 1.~C\~\\~\ ''''~ . \~..., Description (MakeIModellY ear) Trailer Tractor Description (MakeIModellY ear) Trailer Tractor Description (MakeIModellY ear) Trailer Tractor Description (MakeIModellY ear) 7 Trailer C\\l,,'l.\~ \\'\la ~pm) Date Time I have see., reviewed alld received a copy nf Ibis Appen<lix a - Receipt fO~/ C~#l"lbO<i~~ :r(;j~: Date Time () () APPENDIX B Specification of Comoensation Choose one of the two options set out below. Mark out the option not chosen. Percentage Basis Compensation Contractor shall receive ~ % of the revenue for each trip undertaken on Carrier's behalf, such percentage to be derived from the gross revenue contracted for between Carrier aid Carner's customer (whether shipper or receiver), regardless of any difference between that amount and the amount actually billed to or received by Carrier from Carrier's customer. Mileage Basis Compensation Contractor shall receive S per mile loaded for each trip undertaken on Carrier's behalf Unloading Services Should Contractor be required to perform unloading services, he shall be compensated by Carrier at the rate of % ~ of the authorized gross billing for such service to the customer. Empty Mile Empty miles covered by this agreement shall be compensated for at the rate of $ per mile. Detention Time Detention time will be compensated by Carner at the rate of % & billable time authorized by the customer. per cent of the gross ~-.)""\.... ~..~~~ ' ,~O 1. (g) ~\ "'~.. ~..."",~ ~I\.~~). ~ t ..i) Q~. ()- Carrier's Authorized Representative ~ \...:~~ Date \\'..... ~m) Time I have seen.. reviewed and received a copy of this Appendix B - Specification of Co 07 Authorized Representative (of 'ftl?~m) Time Date 8 () (~) APPENDIX C Char2:eback's for Purchase and/or Rental Payments [IfC.ontractor is purchasing or renting equipment from Carrier or any affiliated company, provide a separate schedule of payments as shown below for each item of equipment.j Schedule of Pa ments: Unless s ecified WIder terms of a se assessed as indicated. Amount to be financed ...............................................................$ \1> \~. ... ~ 1,..._ ~\. Interest Rate (if interest is to be charged)... . . . " . '" '" '" .. . . .. . .. . .. ... .. . .. . '" % \" ~ CA.'It\"\~"'- Total Amount of interest (if an)'; multiply amount to be financed by interest rate) $ \<)'(~ ~ reement the followin Total Amount Owed (sum of amount t'inanced + amount of interest) ... '" ....$ .. \0 ~_ .. \ Frequency of Payments (circle one): Single Weekly ~MonthI;) Monthly Total Number ofPa)'ments... '" ... '" '" ... ... ... ". '" ". '" ... '" ... '" ... ... '" _..# L.'\ ~ .~lItJ.(Jnj;(/ Q~.~ AmoWIt of Each Payment (total amount owed divided by number of payments) $ I have seen, reviewed and received a copy of this Appendix C - Chargeback's for Pu Payments or Rental Carrier's Authorized Representative ~ \~,}...~ Date ~~pm) Time C 9 () () APPENDIX D Char2eback's for Specified Items List all chargeback' s that Contractor is responsible to provide compensation to Camer under the terms of the lease to which this Appendix D is attached. For all insurnnce coverage to be purchased from, or through, the Carrier for which deductions will be taken from Contractor s compensation, include ill the itemized list the amount to be deducted and dle frequellC)' of the deduction: Amount to be Deducted (if any) Frequenq' of Deduction (Qrcle one if applicable) I. TrockI WeeklY~-Mo~onthly 2. Trailer ~ Weeklyllij-Mo /Monthly 3. lnsZ Weekly i-Mgn'h1)lMonthly 4.P, Weekly "-Mon9i&lMonthly 5, ~erinl! Weekly/Bi-Monthl)'lMonthl). 6. Taxes: ~~ ~ Fuel WeeklJl.Bi-M n ))Monthly 7. Safety [~ Weekly!lEMon . onthl)' .. )..\0 .~ ... ~"1.. -S ..~ , 1..~'(" <aD C\... ~4 ~~~Wh ~ t....c -~~ ~ ~ 1..1- ~ Calculation of amount to be deducted for above insurance coverage's: DiVide annual premiwn by trequency of deduction. [For eve'T other item lOr which deductions will be taken Irom Contradm's compensation, sepaf'dtely itemize each item and tlle ilIDowll to be deducted. with a recitation of the method of computatiun tor the amowlt to be deducted, per the loll owing example: Item Fuel Base Plates Amount to be deducted Amount paid by Carrier Amount charged by State Frequenc=~;~on (circle one) Weeklyl 1- 1 Monthly SillglelWeekly/ Bi-MonthlY/Monthly How amount was calculated: Fuel Actual amount paid by G-diner including all diScoWlts and rebates. Copies uf COM data sheets will be aUachet.l to settlement sheets when deductions appear. Base Plates Actual anlowlt charged by Slate. Copy of Receipt li'om state will be attachet.l deduction. C\ \ "\.~ ,( Dale \\\-N Bill) Time I have seen, reviewed and received a COpy of this Appendix D - Chargeback's for Specified 10 n (~) APPENDIX E Escrow Carrier shall maintain custody of any escrow funds in an account at a financial institution Insured by the Federal Deposit Insurance Corporation. Said account shall be a separate, segregated account in the name of the Carrier as trustee or escrow agent. The account shall describe that Carrier is maintaining that account as a trustee or escrow agent and the funds in that account shall not be commingled with other funds belonging to the Carrier. Carrier shall furnish Contractor a written explanation and itemization of all deductions from Contractor's escrow funds made under this paragraph. During the term of the lease the Carrier shall provide a separate accounting monthly to the Contractor regarding the escrow fund and any deductions or additions, which have been made. At any time the Contractor may demand an accounting of any transactions involving the escrow fund. While the escrow fund is under the control of the Carrier, the Contractor's account will be credited with interest, pursuant to 49 c.F.R. ~ 376. 12(k) (5). Interest is to be determined using the following formula. The interest rate shall be established on the date the interest period begins and shall be at least equal to the average yield or equivalent COupon issue yields on 9 I-day, 13-week Treasury biJls as established in the weekly auction by the U.S. Department of Treasury. For purposes of calculating the balance of the escrow fund on which interest must be paid, the carrier may deduct a sum equal to the average advance made to the Contractor during the period of time for which the interest is paid. Upon termination of this agreement, the Carrier shall only be permitted to make deductions from the escrow fund for items that are specifically provided for in this agreement. The Carrier shall retum the escrow fund to the Contractor no later than forty-five (45) days following the date of termination of this lease agreement. 11 // it2k &) ~\~~" ~ C'") -") ST5\X T'R'UCXIN(i CO:MP 54!Ny, liC CONTRACTOR LEASE AGREEMENT (49 C.F.R. Part 376) This Agreement is effective as of this ~ day of ~~"...--.~.,. , 2<P~ at (am/pm) by And between S~",.~. tn'\...C' ~~~"'''> . referred to hereafter as "Contractor", located at 11\~ ~~\\~ ~~ \:.\~W~" Q~ \")~S -<\~\\ And ~~..\~Jt.,....,~~\aL ,referred (City) . (State) (Zip) ~ To as "Carrier," located at .,~~'-\ ~C(~""""~ ~~...~ ,Qo (Street) ~ (City) (State) , \, Q\3 (Zip) Contractor is the owner of the equipment described in Appendix A to this Agreement and drives and/or will provide drivers fully qualified under all applicable federal and state laws to operate that equipment in interstate and/or intrastate conunerce. Carrier is in the business of offering and providing motor canier services to the shipping public and desires to r~ the equipment and driver services of Contractor to meet its transportation commitments. Carrier is authorized to conduct operations in interstate and/or intrastate commerce pursuant to operating authorities issued by the appropriate federal and state agencies. Contractor desires to lease its equipment with a driver or drivers to Carrier, and Carrier desires to lease that equipment and driver( s) to meet its transportation requirements for its customers, and for good and lawful consideration, the parties agree as follows: I. CoDies of this A2J'eement This Agreement shall be executed in triplicate. The Carrier will give one executed copy of this Agreement to the Contractor, retain one executed copy for itself: and the third executed copy of this Agreement will be placed in the leased equipment for the dUl3tion of the lease. '\ 2. Receipts for EauiDment The equipment which Contractor wiUlease to Carrier, pursuant to the terms and conditions of this agreement, is identified in Appendix A attached hereto and made a part hereof. Receipts specifically identifying that equipment and specifying the date and time of day possession is transferred shall be given to Contractor by the Carrier. A receipt may be transmitted by mail, telegraph, or other similar means of communication. Upon termination of this lease, or when possession by the Carrier of a unit of equiprhent identified in the addendum ends, the Carrier shall give Contactor a receipt evidencing the date and time of the return of the equipment to Contractor's control. 3. Exclusive Possession and Control bv Contractor. Contractor shall have the exclusive possession, control and use of the equipment, and shall asSume complete responsibility for the operation of the equipment, for the duration of the lease. 4. Identification of EouiDment During the period of the lease, and while the equipment is being operated on behalf of the Carrier, the equipment shall be identified in accordance with all applicable federal and state regulations. Upon the termination of the lease, Contractor shall remove all such identification. The Contractor shall promptly return such identification to the Carrier, or may provide a letter to the Carrier certifying removal of Mid iillmtifi('".(ltion devices from the equipment or that said devices have been lost or stolen. In the event the equipment is operated on behalf of anyone other than the Carrier during the period of the lease, such as in the event of a Trip-Lease, all identification shall be covered and signage of the Trip-Lease carrier displayed instead. 5. Trio-Leasin2 of Eauipment The Contractor may, from time-ta-time, Trip-Lease to another motor carrier who meets all the requirements set forth in 49 C.F.R. Part 376, contingent upon authorization of Carrier. However, under no circumstances shall the Carrier Trip-Lease the equipment to another camer without the Contractor's express written consent, which consent shall not be unreasonably withheld. 6. Status of Contractor as Indeoendent Contractor. Contractor shall be an independent contractor with respect to the transportation operations conducted on behalf of the Carrier at all times during the period this lease is in effect. Neither Contractor nor its employees are to be considered employees of Carrier at any time, except as may be specified by federal or state law. Neither party is the agent of the other nor shall neither party have the right to bind the other by contract or otherwise except as herein7pecificall provided. Contractor has the right to decline any load offered by Carrier, without "'wring ..y n'goti~ ~.../qt "K> " in. eluding, but not limited to, monetary penalties, refusal to dispatch, or adverse ./ / / 1 ~ //;/(/ ef () " ( ) disciplinary or administrative actions. Contractor agrees to cooperate with carrier in a reasonable manner to insure safe and timely service to its customer. Contractor's Initials: Carrier's Initials: 7. Record of Transactions. In compliance with 49 C.F.R ~ 376.11 (d) (I) (or any successor regulation), Carrier shall prepare and keep records covering each trip for which Contractor's equipment is used in Carrier's service. Those documents shall contain the name and address of the Contractor, the point~f-origin, the time and date of departure, and the point of final destination. Further, Carrier shall have to present, on the leased equipment during its operation, documents containing the above-specified information identifying the lading, and acknowledging that the transportation is performed under Carrier's authority. Those documents shall be preserved by Carrier as part of its transportation records. 8. Carrier's Resoonsibilitv to Provide ShiDments. The Carrier agrees to make shipments available from time-to-time for transportation by the Contractor. The Carrier shall exercise every reasonable effort to make sufficient shipments available so that the Contractor shall be able to keep the Equipment in reasonably constant use under the terms of this Agreement, although this shall not be construed as an Agreement by the Carrier to furnish any specific number of loads, or pounds of freight for transportation by the Contractor at any particular time or place. 9. Comoensat:ion to Contractor. Compensation for the lease of the equipment and transportation services provided by Contractor shall be at the rates specified in Appendix B attached hereto and made a part hereof. 10. Comoensation for LoadinlZ UnloadinlZ Detention and Accessorial Services. Whenever oossible Shipper win perfonn loading at origin and receiver will perfonn unloading at destination. Carrier is responsible for the full cost of any loading or unloading services incurred. Should Contractor be requested and agree to perform the loading or unloading of a shipment, Contactor will be compensated by Carrier at the rate specified in Appendix B. Detention time will also be compensated by Carrier at the rate specified in Appendix B. Contractor shall be entitled to receive 80 percent (80%) of the sums received by the Carrier for accessorial services provided by the Contractor, provided such sum is in an amount equal to the charges specified in Appendix B. Contractor is required to submit documentation & authorization as specified by the carrier or the customer in order to be compensated. II. When oossible Comoensation for Emotv MilealZe. Empty mileage incurred by Contractor in the service of the Carrier, specifically those miles operated to make a pickup or return from a delivery, or procCeding between loaded runs, will be compensated by Carrier at the rate set forth in Appendix B. Contractor's driver will keep a record of all such miles identifying the origin and destination of the shipment, and the point to which the equipment is returned for positioning to handle additional shipments for the Carrier. 12. Fuel Surcharge. The Carrier shall pass on to the Contractor one hundred percent (IOOOIo) of any fuel surcharge imposed by the Carrier upon its transportation customer (shipper, motor carrier, broker, or freight forwarder) when such a surcharge is imposed pursuant to any law and/or any agreement between the Carrier and its transportation customer. 13. PaYments to Contractor. Carrier shall pay Contractor on the 2"" and 4dt Friday of each month covering all work performed 14 days prior to the bi-weeldy settlement date. Contractor submits all documents required for Carrier to secure payment from Carrier's customers. Those documents are limited to logbooks required by the Department of Transportation and those documents necessary for Carrier to secure payment from its transportation customer. It is the responsibility of the Carrier to notify the Contractor at the time of dispatch and on the bill of lading that a particular shipment is to be a C.O.D. shipment In the case of C.O.D. shipments only, the documents necessary to secure payment to the Contractor shall include the certified check or money order due to Carrier. 14. Documentation SUDoortinl!: Contractor's Comoensation. If the Contractor's compensation, as specified in Appendix B, is based upon a percentage of the revenue received by the Carrier, Carrier will provide Contractor, before or at the time of settlement, a copy of the applicable rated customer invoice, bills of lading, tariffs, or rate quotes from which the rates or charges shown on the Carrier's customers' invoice are computed., or a computer-generated document containing the same infonnation. Acceptance of compensation without receipt of invoices, bills of lading, tariffs or rate quotes, will not constitute a waiver of Contractor's right to such documents under federal regulation. In the case of charges based on a contract, the Contractor shall be provided a copy of the actual documentation used in producing a rated freight bill for the Carrier's customer. When a computer-generated document is provided, Contractor shall be permitted by the Carrier to view, during normal business hours, a copy of the actual document(s) underlying the computer-generated document If the Conlrncto,', "'-'''''on i, b"'" opon mil_. "" pacti" wil'.!'!" "': .mi'm. "'own i" ... (lcirel. 0",", fill '" hl"""l,. Rand McNally Mileage G. Uid..7JC MiJ..9f Route ,~~US~d Mover Guide or Carriers automated miI~ ~ ..,// / II r/// / A ///(lo'F 2 .,. ,I I (/ i c/ J I ' I I I , i I I I I I I I ! () ') Contractor's Initials: Carrier's Initials: to calculate the mileage traversed between the origin and destination of the shipment The dispatcher will notify the Contractor of the estimated mileage at time of dispatch. If the actual miles traveled by the Contractor, through no fault of the Contractor, exceed the estimated mileage by rmre than 10 percent, then the Contractor shall receive additional compensation for all miles traveled in excess of 100 percent of the mileage shown in the mileage guide at the same rate as is set forth in Appendix B hereto. This clause will not apply when contractor operates under a percent of revenue compensation. 15. Insoection of Carrier's Tariffs. Pursuant to 49 C.F.R ~ 376.12(g) (or any successor regulation), the Contractor is permitted to examine copies of the Carrier's (tariff or in the case of contract carriers, other documents from which rates and charges are computed, provided that where rates and charges are computed from a contract, only those portions of the contract containing the same information that would appear OIl a rated freight bill need be disclosed] during normal business hours at the Carrier's terminal or other place(s) of business. 16. EXDenSes Incurred in Ooeratinl!: EauiDment. Except as may otherwise be provided in this agreement, Contractor shall bear the operational expenses incurred in perfonning the transportation services requested by Carrier under this lease agreement Those expenses shall consist of and are limited to: fuel, fuel taxes, permits of aU types, tolls, femes, base plates and licenses, fines and penalties resulting solely from the acts or omiSsions of Contractor, insurance costs relating to insurance coverage required to comply with this agreement as set out in Appendix D, federal highway use tax on the equipment, federal, provincial, state or city income taxes, and any self-employment or payroll taxes; and any sales, use, excise and other taxes due and owing to ownership 01' operation of the equipment Contractor shall also bear any expenses necessary to maintain the equipment in compliance with aU applicable federal and state safety laws and regulations. Contractor will provide at hislher own expense necessary workmen's insurance for any driver operating contractor vehicles. 17. Base Plates. The Contractor must purchase base plates in his or her own name directly from the State. 18. Purchase of Items from Carrier. Contractor is not required to purchase or rent any products, equipment, or services from or through the Carrier as a condition precedent or subsequent of entering into or continuing the lease arrangement If the Contractor is or becomes party to an equipment purchase agreement or rental contract with the Carrier, or a person or company affiliated with the Carrier, then, pursuant to that agreement or contract, Cprier is authorized to make deductions from Contractor's compensation earned under this agreement for such purchase and/or rental payments in the amounts set forth in the schedule of payments in Appendix C annexed hereto and made a part hereof. Carrier shall not charge Contractor an administrative fee for any service it performs related to Contractor's purchase or rental of any product, equipment, or service through or from the Carrier. Contractor is required to pay any administrative costs incurred by the carrier Pursuant to the safe and timely operation of the Contractor vehicle or for any fimds advanced to the Contractor by the Carrier. 19. Charlre Backs. Carrier may not impose charge backs against the compensation due the Contractor ~for cash advances or the actual cost to the Carrier for providing the specific items identified in Appendix D annexed hereto and made a part hereof. Appendix D identifies all items for which a charge back is authorized that are not otherwise specifically provided for in this agreement and shows how the amount is computed for each item to be charged back to the Contractor. The Contractor shall be entitled to copies of those documents necessary to determine the validity of all items charged back against compensation due the Contractor. 3 20. Loss and Damal!:e Oaims. Carrier shall provide Contractor with a written explanation and itemization of any deductions for cargo or property damage to be taken from Contractor's compensation. Contractor's liability for loss or damage to cargo transported on behalf of Carrier is limited to Cargo Insurance deductibles S \ ,M~, ~ per incident where it is determined through investigation that such loss or damage is due to the act or negligence of Contractor or its employees. Contractor will be provided a reasonable opportunity to present to Carrier any documentation or other evidence demonstrating that the loss or damage was not due to Contractor's act or omission or that of its employees. Except in the case of concealed loss or damage where the consignee did, not have a reasonable opportunity to inspect the goods upon delivery, the presentation of a signed, clear delivery receipt will be considered adequate to establish, without more, that Contractor was not responsible for the loss or damage. In no event will any deduction for alleged cargo loss or damage be made against the Contractor's compensation until all documentation supporting the claim has been provided by the Carrier, and Contractor has been given a reasonable oP~;m10 respo// Coo03cI~', In;.,,, 1./ If /r 10 f Carrier's Initials: () () 21. Fines. The contractor shall assume the risks and costs of fines for overweight and oversize trailers unless the trailers are P;:;;= loaded, sealed, or the load is containerized, or when the trailer is otherwise out of the Contractor's control, except if the violation results from the Contractor's actions. Moreovec, Carriec will take appropriate action to ensure that its customers observe all applicable federal and state laws pertaining to the loading of freight on the Contractor's equipment 22. Fuel Use Tax Pavments. The Contractor may elect to maintain his or her own IFf A account for fuel taxes. If the Contractor so elects, Contractor will provide Carriec with a copy of all fuel tax documentation within 30 days aftec filing date. If Contractor elects to maintain his or her own IFf A account, Contactor will signify by initialing here . If Contractor does not elect to maintain his or her own IFf A account, the Carriec will assume responsibility for filing fuel use tax returns with the Base State in which Conlractor's equipment is registered. Contractor shall submit timely reports on foons supplied by the Carrier and furnish docwnentation for all miles driven and gallons of fuel purchased on a state-- by-state basis. Carrier shall provide Contractor with periodic sununaries of credits and debits for fuel use taxes on a state- by-state basis. Within thirty (30) days following the close of each quarterly tax period, Carrier shall provide a report showing all credits and debits by taxing jurisdiction on account of activities of the Contractor during the reporting period. If the net of credits and debits for all taxing jurisdictions shows that Contractor has a net credit, Carrier shall be entitled such net credit to COver administrative costs in order to protect itself against local. state and federal audits; if the net of credits and debits for all taxing jurisdictions shows that the Contractor has a net debit, Carrier shall be entitled to deduct the amount of such net debit from the Contractor's compensation. 23. Carrier's Insurance Cov~e. Carrier is legally obligated to maintain insW'llllCC for the protection of the public. Contractor will, maintain, and bear the cost of; all required insurance covering personal injury, as is required of a motor carriec engaged in interstate connnerce by federal law and regulations. No portion of the cost of such insurance shall be passed on to Carrier directly or indirectly. 24. Insurance to be Provided bv Contractor. Consistent with federal regulations. Contractor shall not be required to purchase any insurance from. or through. the Carrier and shall be free to acquire insurance &om any insurer as long as it comports with that generally available at the time of contracting in terms of insurance obligation, exclusions to coverage, etc. If the Contractor purchases any insurance coverage from. or through. the Carriec, it will be enumerated in Appendix D, and the Carrier shall be authorized to charge back the cost to it for such policies in such amounts as are specified in Appendix D. 25. Insurance ~ts and Infonnation. In the event that the Contractor purchases any insurance coverage from. or through. the Carrier, the Carrier will provide the Contractor with certificate(s) of insurance for each such policy that include the name of the insurer, the policy number, the effective dates of the policy, the amounts and types of coverage, the actual cost to the Contractor for each type of coverage and the deductIble amount for each type of coverage for which the Contractor may be liable. The Carrier shall also provide Contractor with a copy of each such policy. The Carrier shall also provide Contractor, upon request, copies of those docwnents necessary to detennine the validity of any charge or deduction by Carrier for this insurance. 26. Escrow Account. Carrier shall not retain any funds belonging to Contractor or establish any escrow or reserve account for Contractor, nor shall any sums be deducted from Contractor's compensation for the purpose of establishing or maintaining a balance in an escrow account 27. Notice. Any notice required or permitted by this agreement to the Carrier shall be deemed conclusively provided when hand delivered to Carrier at any of Carrier's terminals, or to either the Carrier or the Contractor when deposited by either Party in the United States mail with first class postage prepaid, properly addressed to the other Party as follows: Contractor Carrier Name Name Slreet Street City City State State Zip Contr>Ct,"', Initial, /, Carrier's Initials: Zip 4 I { I I ! () n Should the address of either Party change; notice of the new address must be provided by first class mail within five (5) business days of that change. 28. Entire Aneernent - Modification. This agreement, with the attached Appendices A-D, constitutes the entire agreement and understanding between the parties and shall not be modified, altered, changed or amended in any respect unless in writing and signed by both parties. 29. This agreement shall be governed by the provisions ofTitIe 49, Part B, United States Code, Title 49, Part 376, and Code of Federal Regulations and, to the extent consistent with federal laws and regulations, by the laws of the State of Pennsylvania. 30. Effective Date and Duration of Aneement This lease shall be effective as of the date and time the agreement is executed by both parties and shall continue in effect until terminated in accordance with the provisions of this agreement It is contemplated that the term of this agreement will be for not less than forty-five (45) days from the date of execution and will automatically continue in effect until such time as terminated mutually, or by either party, as provided in this agreement Should Contractor or Carrier breach any of the terms of this agreement, the other party win give written notice of that breach and, if not corrected within seven (7) days of the date such notice is provided, can tenninate the agreement upon twenty-four (24) hours written notice to the other party. If either party desires to terminate the agreement without cause, ten (10) days written notice must be provided to the other party. IN WITNESs WHEREOF, the parties hereto have executed this agreement this day of ~. ,.)'{ , 200( at (am'pm) and same shall be considered binding upon both parties and shall remain in full force and effect unless and until tenninated according to the tenns 0 is agreement C;;'-f~ / ~ 1'~ 'i'J r r> FOR CARRIER: Name - Title Contractor's Initials: ;f/lltr Carrier's Initials: 5 I I I I I I j j (~) () LIST OF APPENDICES Receipts for Equipment................................................................ ......................................... ...App. A Specification of Compensation. . '" " . .............. ......... . '" ......... '" '" ..... .... .. . '" '" ... . App. B Chargeback's for Purchase and/or Rental Payments.................................................................App. C Chargeback's for insurance and Other Unspecified Items........................................................App. D Escrows............ ......... ............................................................... ............................................... .App. E -- -- ------------.. ----_.- ---------------~-- 6 I . --I , n (~) APPENDIX A Receipts for Equipment (USE ADDmONAL COPIES AS NECESSARY TO ACCOMMODATE ALL EQUIPMENT) Carrier acknowledges receipt of the following equipment on the date and at the time stated below: Ttact()t""L~\ .. ,\",,~ .. \ f\<\"') Description (MakeIModel/Year) Trailer V iN 2 ~;) ~ \\\\ l"\ ~"' ..( c.. (j "L"6 ~ \, VIN Tractor Description (MakeIModel/Year) VIN Trailer VIN Tractor Description (MakeIModel/Y ear) VIN Trailer VIN Tractor Description (MakeIModel/Y ear) VIN Trailer VIN Carrier's Authorized Representative Date I have seen, reviewed and received a copy of this Appendix a _ Receipt for Equi (am/pm) Time 7 I I I J I I . (') (, APPENDIX B Specificatioa of Compensation Choose one of the two options set out below. Mark out the option not chosen. Percentage Basis Compensation Contractor shall receive ~1- % of the revenue for each trip undertaken on Carrier's behalf, such percentage to be derived from the gross revenue contmcted for between Carrier aid Carrier's customer (whether shipper or receiver), regardless of any difference between that amount and the amount actually billed to or received by Carrier from Carrier's customer. Mileage Basis Compensation Cont:raetor shall receive S per mile loaded for each trip undertaken on Carrier's behalf. Unloading Services Empty miles covered by this agreement shall be compensated for at the rate of $ per mile. Should Contractor be required to perform unloading services, he shall be COmpensated by Carrier at the rate of% ~ '- of the authorized gross billing for such service to the customer. Empty Mile Detention Time Detention time will be compensated by Carrier at the rate of % ~1.. billable time authorized by the customer. per cent of the gross ~..\- s..,c~C - \').0 ~ \\~ ~(' 'o~~\' s.~"\~"1 - ~t.. 1, Carrier's Authorized Representative Date (arn/pm) I have seen, reviewed and received a copy of this Appendix B - Specification of Date 8 () (J APPENDIX C Char~eback's for Purchase and/or Rental Pavments [If Contractor is purchasing or renting equipment from Carrier or any affiliated company, provide a separate schedule of payments as shown below for each item of equipment] Schedule of Pa ments: Unless assessed as indicated. ified under terms of a Amount to be fmanced ..... ... ..... .... ........ ....... '" ........ .... ........ .... ....$ Interest Rate (if interest is to be charged)...... ..... '" ... ............ .... ......... % Total Amount of interest (if any; multiplyamoWlt to be financed by interest rate) $ Total Amount Owed (sum of amount financed + amount of interest) ..........$ Frequency of Payments (circle one): Single Weekly Bi-Monthly Monthly Total Number of Payments.. ......... ...... ...... ........ ............ ... ....... ..... ..# Amount of Each Payment (total amount owed divided by number of payments) $ Carrier's Authorized Representative Date (amlpm) Time I have seen, reviewed and received a copy of this Appendix C - Chargeback's for Pure Payments Date (am/pm) Time 9 I I I I ! I i I () (') APPENDIX D Chart!'ebad's for Soecified Items List all cbargeback's that Contractor is responsible to provide compensation to Carrier under the terms of the lease to which this Appendix D is attached. For all insurance covel3ge to be purchased from, or through, the Carrier for which deductions will be taken from Contractor s compensation, include in the itemized list the amount to be deducted and the frequency of the deduction: Amount to be Deducted (if any) Frequency of Deduction (Circle one ifapplicable) ~+_.-: . ~ '\'6 -: How amount was calculated: Fuel Actual amount paid by Gainer including all discounts and rebates. Copies of COM data sheets will be attached to settlement sheets when deductions appear. Base Plates Actual amount charged by State. Copy of Receipt from state will be attached to settlement sheet showing (first or only) deduction. tJ...v.\.~~, . ""~'''~ G...-~,., ().,. \>~~ ~<1'~\.. \t)~~<..~~. ~~ 1:.~\.~,tUi. Carrier's Authorized Representative · \S~ Calculation or amount to be deducted ror above insurance coverage's: Divide annual premium by frequency of deduction. [For every other item for which deductions will be taken from Contractors compensation, separately itemize each item and the amount to be deducted, with a recitation of the method of computation for the amount to be deducted, per the following example: Item Fuel Base Plates Amount to be deducted Amount paid by Carrier Amount charged by State Frequency of deduction (circle one) Weekly/ Bi-Monthly/ Monthly Single/W eekly/ Bi-MonthIy/Monthly I have seen, reviewed and received a copy of this Appendix D - Chargeback's for Specified Ite Date Date 10 .. () () APPENDIX E Escrow Carrier shall maintain custody of any escrow funds in an account at a financial institution Insured by the Federal Deposit Insurance Corporation. Said account shall be a separate, segregated account in the name of the Carrier as trustee or escrow agent. The account shall describe that Carrier is maintaining that account as a trustee or escrow agent and the funds in that account shall not be commingled with other funds belonging to the Carrier. Carrier shall furnish Contractor a written explanation and itemization of all deductions from Contractor's escrow funds made under this paragraph. During the term of the lease the Carrier shall provide a separate accounting monthly to the Contractor regarding the escrow fund and any deductions or additions, which have been made. At any time the Contractor may demand an accounting of any transactions involving the escrow fund. While the escrow fund is under the control of the Carrier, the Contractor's account will be credited with interest, pursuant to 49 C.F.R ~ 376. 12(k) (5). Interest is to be determined using the following formula. The interest rate shall be established on the date the interest period begins and shall be at least equal to the average yield or equivalent coupon issue yields on 91-day, 13-week Treasury bills as established in the weekly auction by the U.S. Department of Treasury. For purposes of calculating the balance of the escrow fund on which interest must be paid, the cani~ may deduct a sum equal to the average advance made to the Contractor during the period of time for which the interest is paid. Upon termination of this agreement, the Carrier shall only be permitted to make deductions from the escrow fund for items that are specifically provided for in this agreement. The Carrier shall return the escrow fund to the Contractor no later than forty-five (45) days following the date oftermination of this lease agreement. 11 ~ s<),~ O'~1.t\~.. \ .t EQUIPMENT PURCHASE AGREEMENT This equipment purchase agreement is made and effective thisl..1...,.J day of &~~"-,, , 20 o~ , by and between ,s.\,,.,, ('~~'^~ v . ') \.'-'-- he einafter referred to as "Seller" and S~ ,"'.).. E: C\~c.~ 'c..... ~ ~ , hereinafter reterred to as "Buyer". Whereas "Seller" desires to sell to "Buyer", and "Buyer" desires to purchase ti"om "Seller", clUtain tangible propel1y as described in Appendix "A" attached Herein and made palt to this agreement. Whereas "Buyer" desires to finance this purchase tlu'ough the "Seller" and "Seller" desires to finance this purchase for the "Buyer". Nmv, therefore, in consideration of the mutual covenants and promises hereinafter set fol1h, the parties agree as follows. Purchase. "Seller" hereby sells to "Buyer" and "Buyer" hereby purchases thlm "Seller", the equipment described in Appendix A to this agreement. Price. The price to be paid by the "Buyer" to the "Seller" shall by the sum of ten thousand dollars ($10,000.00) in US ClUTency plus interest at the rate of six percent (6%) per annum on the whole purchase price for the duration of this agreement. '" Finance Term. The term of this finance agreement shall be in the form of a lease agreement commencing on the ~ ~ day of ~~.~ 04 , 200s and shall expire twenty-four (24) months thereafter. Payments- The monthly payment for the equipment shall be paid in installments of Four hundred and Twenty dollars ($420.00) each month. The "Buyer" agrees to allow the "Seller" to make automatic deductions of Two hundred and Ten ($210.00) ti'om the "Buyers" bi-weekly contractor settlement payments, to begin on the \'-\ "" day of~~~ ,20<)-{ and each succeeding settlement day througho~lt the term hereof. Buyer may, at "'Buyers" election to make the filII monthly payment in advance providing Stich payment is made at least seven (7) days prior to the upcoming first ~se./~t~e.men ate of the month. / j &> '\\l."'~'; 2- Deposit. "'Buyer" shall be permitted by the "Seller" to deposit on account a sum of money equal to or more than one months installments amount at the beginning of this term. The deposit amount, if elected, shall be deducted ii-om the full purchase price of the equipment, plus all interest, and the "Seller" shall adjust the payment amounts provided herein accordingly. AU other terms and conditions of this agreement shall not be affected by the payment of a deposit sum. Use. "Buyer" shall use the equipment in a safe and appropriate manner and shall comply with and confonn to all national, state, municipal, and other laws, ordinances and regulations in any way relating to the possession, use, or maintenance of the equipment. Disclaimer. ""Seller" disclaims any and all walTanties, expressed or implied including but, not limited to implied walTanties of condition, operational fitness, operational performance or any other mechanical or stluctural condition of the equipment. Repairs. ""Buyer", at its own cost and expense, shall keep the equipment in good repair, condition and working order and shall furnish any and all pat1s, mechanisms and devices required to keep the equipment in good mechanical working condition and order dill"ing the term herein. Loss and Damage. <<Buyer" hereby assumes and shall bear the entire risk of loss and damage to the equipment ii-om any and every cause whatsoever. No loss or damage to the equipment or any pal1 thereof shall impair any obligation of "Buyer" under this purchase agreement. In tbe event of any loss or damage of any kind whatsoever, <<Buyer" shall, at <<Sellers" option Place the same in good repair, condition and working order; Replace the same with like equipment in good repair, condition and working order; or Pay to the <<Seller" the full and total remaining balance of the original purchase price plus calculated interest to the completion of the term herein. Surrender. Upon the expiration of this agreement, or earlier termination of this agreement, the result of "Buyer" paying off the full and total remaining balance of the whole purchase price plus accumulated interest, the <<Buyer" C\ "\.""~:> J ownership of the equipment to the "Buyer", The Buyer shall have no further obligation to the "Seller" with regards to this agreement. Default. If at any time during the term of this agreement, buyer fails to make payments described herein, for whatever reason whatsoever, the Buyer shall return the equipment to the Seller and the Buyer shall forfeit any monies previously paid, regardless of dill-ation, and shall have no further claims against the Seller for the equipment. Buyer agrees that settlement deductions described herein do not replace the Buyers obligation to make full monthly payments, according to the terms of this agreement, prior to the last day of each month outlined herein. Insurance. Buyer shall procure and continually maintain and pay for all risk insurance against loss of and damage to the equipment for not less than the full replacement value of the equipment, naming "Seller" as loss payee, and liability and property damage insurance with limits approved by "Seller", naming "Seller" as additionally named insured and loss payee. The insurance shall be in such tonn and with such company or companies as shall be reasonably acceptable to "Seller". Buyer shall provide "Seller" with an original policy or certiticate identitying such insurance. Taxes and Fees. Buyer shall keep equipment free and clear from all levies, liens and encumbrances. "Buyer" or Seller, at Buyers expense shall repOlt, pay and discharge when due all license and registration tees, assessments, sales, use and property taxes, gross receipts, taxes arising from use or operation of equipment, together with any penalties or interest therein imposed by any state, federal or local government or any other agency, or depattment thereof whether or not the same shall be assessed against or in the name of Seller or Buyer. fndemnity. Buyer shall indemnif)' Seller against and hold Seller hannless ti"om any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities including reasonable attorney's tees and cost, arising out of~ connected \\/ith, or resulting ii-om Buyer's use of the equipment, including without limitation the selection, delivery, possession, use, operation, or return of the equipment. ~/17tk @ l\\"~{ y Bankruptcy. Neither this agreement nor any other interest therein is assignable or transferable by operation of law. As any proceeding under the Bankruptcy Act, as amended, is commenced by or against the Buyer, or if the Buyer is adjudged insolvent, or if Buyer makes any assignment for the benefit of the Buyers creditors, or if a writ of attachment or execution is levied on the equipment and is not released or satisfied within ten (10) days thereafter, or if a receiver is appointed in any proceeding or action to which the Buyer is party with authority to take possession or control of the equipment, seller shall have and may exercise the option to, without notice, immediately tenninate the agreement. The agreement shall not be treated as an asset of Buyer after the exercise of said option. Ownership. The equipment is, and at all times beyond remain, the sole and exclusive property of the Seller; and the Buyer shall have no right, title or interest therein or thereto except as expressly set forth in this agreement. At the completion of the terms of this agreement, Buyer shall become and shall take sole possession of the equipment. Contractor Obligation. Buyer agrees to maintain the equipment in good standing with the Seller in a contractor operating lease agreement for the full term of the purchase agreement as outlined herein. Buyer may, at Buyers option re-pay the full amount of the purchase along with accumulated interest at any time during the life of this agreement and then be released from any obligation under this clause. Entire Agreement. This instrument constitutes the entire agreement between the pat1ies on the subject matter hereof and it shall not be amended, altered or changed except by a further writing signed by the patties hereto. Notices. Service of all notices under this agreement shall be sufficient if given personally or by celtified mail, return receipt requested, postage pre paid at the address hereinafter set fOl1h, or to such address as such party may provide in writing from time to time. @ q/t~f}~ IF TO SELLER: Star Trucking Company, LLC P.O Box 784 New Kingstown, Pa 17072 IF TO BUYER: Szivek Enterprises, LLC 7710 Carlisle Rd. Wellsville, Pa 17365 Government Law- This agreement shall be construed and enforced according to the laws of the State Of Pennsylvania. In witness whereot: the parties thereto have executed this agreement as of the day and year first above written. &\..... "' .,,;')l. 1\ 'lc, to. ~\.... c.. Se~R._ ~ Buyer (3~ fA~~tc-~ CY,.zz-oS Witne~f Z IOJ Date f lLe , . t -, f', ,........"t C , () c: II C :-::1 ; I \..C , C,) f'0 (..) --<;: J- SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 06-773 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. PLAINTIFF SZIVEK ENTERPRISES, LLC'S, MOTION TO COMPEL DEFENDANTS' RESPONSES TO PLAINTIFF'S DISCOVERY REQUESTS Plaintiff Szivek Enterprises, LLC ("Szivek"), by and through its attorneys, Saul Ewing LLP, and pursuant to PA. R. CIV. P. 40019, hereby respectfully request this Court enter an Order directing the defendants to produce all documents responsive to Szivek's Request For Production of Documents, along with meaningful responses to Szivek's Interrogatories, in o compliance with the Pennsylvania Rules of Civil Procedure, and in support thereof aver as follows: 1. Plaintiff initiated this action by filing a Complaint with this Court on February 7, 2006. 2. An Amended Complaint was subsequently filed on March 10, 2006. 3. Following the defendants' Preliminary Objections to the Amended Complaint, and this Court's April 13, 2006 Order, a Second Amended Complaint was filed on June 16, 2006. 126250.18/17/06 ;- 4. On or about June 20,2006, the Plaintiff served the defendants with Requests for Admissions, Interrogatories and Requests for Production of Documents. True and correct copies of the plaintiff s discovery requests are attached hereto as Exhibit A. 5. On or about August 4,2006, substantially. beyond the 30-day time period provided for by the Rules, the defendants served plaintiff's counsel with objections to Plaintiff's Interrogatories and Answers and Objections to Plaintiff's Request for Production of Documents. True and correct copies of the defendants' discovery responses are attached hereto as Exhibit B. 6. The defendant's response to Plaintiff's Request for Production of Documents does nothing more than provide a general objection to each and every request, and an invitation for the Plaintiff to inspect certain unidentified documents. 7. Moreover, the defendants' response to Plaintiff's Interrogatories is only a general objection that purportedly covers each an every request. 8. Pursuant to Rule 4009.12, a party is required to respond to a party's request for the production of documents by: (1) identify(ing] all documents or things produced or made available; (2) identifyfinl! 1 all documents or thinl!s not produced or made available because of the objection that they are not within the scope of permissible discovery under Rule 4003.2 through 4003.6 inclusive and Rule 40 11 (c). Documents or things not produced shall be identified with reasonable particularity together with the basis for the non-production. PA. R. CIv. P. 4009.12 (emphasis added). 9. The note to Rule 4009.12 explains that the party who is requested to produce documents is encouraged "to identify the documents or things produced and the documents or things withheld through a system of numbering. . . . [which] will assist the court in resolving disputes arising out of production of documents." P A. R. CIV. P. 4009.12, note. 126250.\ 8117/06 -3- 126250.18117/06 -4- /' 10. The defendants' Objection and Response to the Plaintiffs Request For Documents violates the Rules by failing to identify those documents that are purportedly being made available for review, and by failing to identify those documents that may be withheld from production. Instead, the defendants have responded with a boilerplate objection that leaves the Plaintiff, and this Court, to guess as to what documents will be made available, or whether any withheld information is discoverable. 11. With respect to the Plaintiffs Interrogatories, the Rules provide: Each interrogatory shall be answered fully and completely unless objected to, in which event the reasons for the objection shall be stated in lieu of an answer. . . . The statement of an objection shall not excuse the answering party from answering all remaining interrogatories to which no objection is stated. Pa. R. Civ. P. 4006(2). 12. The defendants' "response" to the Plaintiffs Interrogatories do not even make the slightest effort to comply with the Rules, and fail to indicate what objections may apply to what interrogatory, making it impossible for the Plaintiff or this Court to discern whether the defendants' objections are viable. 13. Moreover, the defendants' attempt to play fast and loose with the discovery process is patent and done in bad faith, as it is incomprehensible that every single interrogatory is objectionable. 14. For example, the first interrogatory only asks the defendants to "[i]dentify all persons providing information for the preparation of [the defendant's] answers to these interrogatories. " 15. Similarly, the defendants' have refused to answer numerous other basic requests that are generally common to all litigation. 126250.18117/06 -5- i" 16. To the extent the defendants believe they do not have to answer any of the interrogatories because they exceed the number permitted by Cumbo Co. L.R. 4005.1, the defendants are horribly incorrect. 17. The Cumberland County Local Rules permit a party to serve up to 40 interrogatories, including subparts. See Cumbo Co. L.R. 4005.1. 18. The Interrogatories sent to defendant Class 8 Shops include ft numbered requests, and even an extremely liberal counting of every possible subpart of those interrogatories amounts only to a total of 11 requests. 19. Similarly, the Interrogatories to defendant Star Trucking total only!! in number. 20. In addition to the above, the defendants have waived any objections they may have had to the Plaintiffs discovery by failing to respond thereto within the time period set forth in the Rules. 21. Based on the above, it is clear that the defendants have not made any attempt to comply with the Rules, and that the defendants' "responses" are nothing more than a bad faith attempt to prolong this litigation and cause the. Plaintiff to incur additional costs and expenses in preparing motions to address non-existent discovery issues. 22. Where a party improperly fails to respond to a request for documents made pursuant to Rule 4009, the Rules provide that a court may fashion an appropriate order compelling the production of the requested documents. See Pa. R. Civ. P. 4019(a)(1 )(vii). WHEREFORE, the Plaintiff Szivek Enterprises, Inc., respectfully requests the Court enter an Order compelling the defendants Star Trucking Co., LLC, and Class 8 Shops, LLC, to provide substantive responses to the Plaintiff's Requests for Production and Interrogatories in ,. compliance with the Pennsylvania Rules of Civil Procedure, and awarding attorneys' fees and costs in association with the preparation of this motion. Respectfully submitted, Saul Ewing LLP ~ ~C Joel C. Hopkins, Esquire Supreme Court J.D. No. 85096 2 North Second Street, 7th Floor Harrisburg, PAl 71 0 1 (717) 257-7500 Counsel for Defendants Dated: August 17, 2006 126250.1 8/17/06 -6- ... ~r- Joel C. Hopkins ~~ if CERTIFICATE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that on this 17th day of August, 2006, I served a true and correct copy of the foregoing Motion to Compel via First Class Mail, postage prepaid, and facsimile, upon the following counsel of record: David J. Lanza 2157 Market Street Camp Hill, PA 17011 126250.1 8/17/06 , . .. A " () () SZIVEK ENTERPRISES, LLC, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-773 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT CLASS 8 SHOPS. LLC Plaintiff Szivek Enterprises, LLC ("Szivek"), by and through its counsel, Saul Ewing LLP, hereby propounds the following Interrogatories, pursuant to Rules 4005 and 4006 of the Pennsylvania Rules of Civil Procedure, and Cumberland County Local Rule 4005-1, upon Defendant Class 8 Shops, LLC. ("Class 8") and requests Class 8 answer the following Interrogatories within (30) days, pursuant to the Pennsylvania Rules of Civil Procedure. I. DEFINITIONS AND INSTRUCTIONS A. Definitions 1. The word "document" or "documents" refers to any printed, written, taped, recorded, graphic, electronic, computerized printout, or other tangible matter from whatever source, including computer disks, floppy disks, hard drives, CD-ROMs, tapes, cartridges, zip drives, or other computer data storage devices, however produced or reproduced, whether in draft or otherwise, whether sent or received, or neither, including, but not limited to, the original, a copy (if the original is not available), and all nonidentical copies (whether different from the original because of notes made on or attached to such copy or otherwise) of any and all writings, account statements, ledgers, bills, invoices, receipts, correspondence, letters, telegrams, cables, telexes, routing slips, contracts, proposals, agreements, minutes, acknowledgments, notes, marginalia, notations, memoranda, intra and interoffice communications, intra and interdepartmental communications, analyses, projections, work papers, books, papers, records, reports, diaries, journals, notes or recordings of telephone or other conversations, statements, questionnaires, schedules, computer programs or data, books of account, calendars, time cards, time sheets, graphs, charts, transcripts, tapes or recordings, photographs, pictures or film, ledgers, registers, work sheets, summaries, digests, financial statements, and all other information whether data, records or compilations, including all 124791.1 6I2Oi06 " n C') underlying, supporting or preparatory material now in your possession, custody or control, or available to you, your counsel, accountants, agents, representatives or associates. "Document" or "documents" specifically includes documents kept by individuals in their desks. at home or elsewhere. 2. "Copy" when used in reference to a document means any color, or black or white facsimile reproduction of a document, regardless of whether the facsimile reproduction is made by means of carbon papers, pressure sensitive paper, xerography or other means or process. 3. "Complaint" means the Second Amended Complaint filed in the Cumberland County Court of Common Pleas at docket number 06-773. . 4. The term "communication" means any writing, or oral conversation, including, but not limited to, emails, telephone conversations, meetings, letters, telegraphic and telex communications, and includes all information relating to all oral communications and "documents" (as hereinabove defined), whether or not any such document, or other information contained therein was transmitted by its author to any other person. 5. The term "meeting" means any gathering, formal or informal, of two or more persons. 6. "Person" means any natural person, any business entity (whether a corporation, partnership, or other business association), any government or political subdivision thereof, or governmental body, commission, board, agency, bureau or department. 7. "You", "your", "Defendant", "Class 8 Shops, LLC" or "Class 8" shall mean Class 8 Shops, LLC, any member, officer, agent, employee, attorney or representative of Class 8; and/or any other person or entity acting or purporting to act on behalf of Class 8. 8. "Szivek Enterprises, LLC", "Robert Szivek", "Plaintiff' or "Szivek", shall mean Szivek Enterprises, LLC, any member, officer, agent, employee, attorney or representative of Szivek; and/or any other person or entity acting or purporting to act on behalf of Szivek. 9. The terms "refer to," "relate to," "relating to" and "with regard to" shall mean concern or concerning, pertain or pertaining, discuss or discussing, mention or mentioning, reflect or reflecting, assess or assessing, record or recording, comprise or comprising, consist of or consisting of, evaluate or evaluating, analyze or analyzing the specified subject. 10. "Identify" or "identity" when used in reference to: a) An individual, shall mean to state his or her full legal name and present or last known address (including zip code), phone number, and present or last known position or business affiliation (designating which), and the job description. 124791.1 6I2Oi06 -2- " () (-) b) A document shall mean to state the date, author, sender, recipient, type of document or some other means of identifying it, a description of the subject matter of the document, and its present location and custodian. In the case of a document within the possession, custody or control of the Defendant, please state whether the Defendant will make it available to Plaintiffs attorney for inspection and/or copying; and in the case of a document that was, but is no longer in the possession, custody or control of Defendant, please state its present location. c) A communication shall include any oral or written communications and shall mean to state with particularity the date, maker, recipient, and substance of the communication, including the identification of all persons present during the communication, or with knowledge of the communication. d) A corporate entity shall mean to state its full corporate name; its date and place of incorporation, ifknown; and its present address and telephone number. II. Use of the plural form of any word shall be deemed to include the singular form, and use of the singular form shall be deemed to include the plural form. 12. The words "and" and "or" shall mean "and/or." "And" as well as "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of these Interrogatories any information that might otherwise be construed to be outside their scope. "All" means "any and all;" "any" means "any and all;" "including" means "including but not limited to;" and "each" means '~each and every." 13. "Describe" means to provide all facts relating to the matter described, including, where applicable, dates, times, places and witnesses, and also means to identify all persons with knowledge of such facts and also means to identify all documents which set out, describe, explain or otherwise refer to the facts set out in the Answer to the Interrogatory. B. Instructions I. In responding to these Interrogatories, you are requested to identify all documents or thi~gs in your possession, custody or control, or known or available to you, regardless of whether such documents or things are possessed directly by you or by your attorneys or their agents, employees, representatives or investigators. 2. Unless otherwise indicated in a specific Interrogatory, the relevant time period for these Interrogatories is 2004 through the present. 3. If any Interrogatory cannot be responded to in full, respond to the extent possible, indicating what portion of any Interrogatory cannot be responded to and the reason therefor. 4. To the extent that you consider any of the following Interrogatories objectionable, respond to so much of each Interrogatory and part thereof, as is not objectionable 124791.1 6I2Oi06 -3- iJt () ( ) in your view and separately state that part of each Interrogatory as to which you raise objections and each ground for such objection. 5. If you object to the identification of any document on the claim of attorney/client privilege, work product privilege, or any other privilege, identify the privilege claimed, as well as each document for which such privilege is claimed, together with the following information with respect to each such document: a) Date; b) Sender; c) Addressee; d) Subject; e) The basis on which the privilege is claimed; and f) The full identification of all persons to whom copies of any part of the document were furnished, including each person's full address, phone number, present employer and job title. 6. These Interrogatories are deemed continuing. If you or anyone acting on your behalf learn of further information responsive to these Interrogatories not contained in your answer between the time of your answers to these Interrogatories and the time set for hearings in this matter, you are under a duty to promptly notify the undersigned of such further information by way of a supplemental answer. The Plaintiff reserves the right to conduct additional discovery . 7. In lieu of identifying documents in response to these Interrogatories, you may provide copies of such documents with appropriate references to the corresponding interrogatories. 8. These Interrogatories are to be answered in writing, verified, and served upon the undersigned within 30 days of their service on you. Objections must be signed by the attorney making them. In your answers you must furnish such information as is available to you, your employees, representatives, agents, and attorneys. Your answers must be supplemented and amended as required by the Pennsylvania Rules of Civil Procedure. 124791.16120106 -4- , (~') n INTERROGATORIES 1. Identify all persons providing information for the preparation of Class 8's answers to these interrogatories, and for each person identify which interrogatories, by number, for which that person provided information. 2. Identify all persons that Class 8 intends to call as a non-expert witness at the trial of the above-captioned matter, and for each such person provide a summary ofhislher expected testimony. 124791.1 6120106 .~-, (I () 3. Identify all persons that Class 8 intends to call as expert witnesses at the trial of the above-captioned matter, and for each such person provide a summary of hislher expected testimony. ) 4. Identify the full name, address and telephone numbers for all individuals interviewed or contacted by Class 8 or its attorneys, representatives, agents or employees, regardless of whether a statement was taken or whether the individual will be called as a witness, regarding the subject of the Complaint. If a statement was recorded or memorialized in any manner whatsoever, identify the location of any statement, including the full name, address and telephone number of the custodian of any such statement. 124191.1 6120106 -6- , (') ( ) 5. If you, or someone not an expert subject to Pa. R. Civ. P. 4003.5, conducted any investigations of the events alleged in the Complaint, identify: a. each person, and the employer of each person, who conducted any investigation(s); and b. all notes, reports or other documents prepared during or as a result of the investigation(s) and the persons who have custody thereof. 6. If you intend to use any admission(s) of a party at trial, identify such admission(s). 124791.1612006 -7- ( ) (-) . 7. Describe and identify all documents that relate in any way to any service or repair performed by Class 8 on any power units owned by Szivek, including but not limited to two 1997 International 9400 series trucks, bearing vehicle identification numbers 2HSFHAMRXC028817 and 2HSFHAMRXVC028819. 8. Identify and describe all work done on the two 1997 International 9400 power units identified in request number 7, above. 124791.1 6120106 -8- (-') ( ) 9. Identify each person who has knowledge of facts concerning the allegations of the Complaint and the facts concerning which each is knowledgeable. ~. - PC~~ Joel C. Hopkins, Esquire Saul Ewing LLP Attorney I.D. No. 85096 2 North Second Street, ih Floor Harrisburg, P A 17101 (717) 238-7525 Attorneys for Plaintiffs Dated: June 20, 2006 124791.1 6I2lW6 -9- 4 Joel C. Hopkins , (') ( ) CERTIFICATE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that a true and correct copy of the foregoing was served via U.S. Mail, First Class, postage prepaid, this 20th day of June, 2006 on the following persons: David J. Lanza, Esquire 2157 Market Street Camp Hill, PA 17011 124791.1 6I2OIIl6 . . , ( ) ( ) Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SZIVEK ~NTERPRISES, LLC, NO. 06-773 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. PLAINTIFFS FIRST SET OF DOCUMENT REQUESTS DIRECTED TO DEFENDANT CLASS 8 SHOPS. LLC Plaintiff Szivek Enterprises, LLC ("Szivek"), by and through its counsel, Saul Ewing LLP, request that the following documents be produced pursuant to Rule 4009 of the Pennsylvania Rules of Civil Procedure at the offices of Saul Ewing LLP, Penn National Insurance Tower, 2 North Second Street, 7th Floor, Harrisburg, Pennsylvania 17101, within thirty (30) days of the date of service hereof for the purpose of inspecting and photocopying same, and for all purposes permitted under the applicable laws and rules. I. DEFINITIONS AND INSTRUCTIONS A. Definitions I. The word "document" or "documents" refers to any printed, written, taped, recorded, graphic, computerized printout, or other tangible matter, from whatever source, however produced or reproduced, whether in draft or otherwise, whether sent or received, or neither, including, but not limited to, the original, a copy (if the original is not available), and all nonidentical copies (whether different from the original because of notes made on or attached to such copy otherwise) of any and all writings, account statements, bills, invoices, receipts, correspondence, letters, telegrams, cables, telexes, routing slips, contracts, proposals, agreements, minutes, acknowledgments, notes, notations, memoranda, intra and interoffice communications; intra and interdepartmental communications; analyses, projections, work papers, books, papers, records, reports, diaries, journals, notes or recordings of telephone or other conversations, statements, questionnaires, schedules, computer programs or data, books of account, calendars, graphs, charts, transcripts, tapes or recordings, photographs, pictures or film, ledgers, registers, work sheets, summaries, digests, financial statements, and all other information whether data, records or compilations, including all underlying, supporting or 124801.1 6120olO6 () preparatory material now in your possession, custody or control, or available to you, your counsel, accountants, agents, representatives or associates. "Document" or "documents" specifically includes documents kept by individuals in their desks. at home or elsewhere. 2. "Copy" when used in reference to a document means any color, or black or white facsimile reproduction of a document, regardless of whether the facsimile reproduction is made by means of carbon papers, pressure sensitive paper, xerography or other means or process. 3. The term "communication" means any writing, or oral conversation, including, but not limited to, telephone conversations, meetings, letters, telegraphic and telex communications, and includes all information relating to all oral communications and "documents" (as hereinabove defined), whether or not any such document, or other information contained therein was transmitted by its author to any other person. 4. "Person" means any natural person, any business entity (whether a corporation, partnership, or other business association), any government or political subdivision thereof, or governmental body, commission, board, agency, bureau or department. 5. "You", "your", "Defendant", "Class 8 Shops, LLC" or "Class 8" shall mean Class 8 Shops, LLC, any member, officer, agent, employee, attorney or representative of Class 8; and/or any other person or entity acting or purporting to act on behalf of Class 8. 6. "Szivek Enterprises, LLC", "Robert Szivek", "Plaintiff' or "Szivek", shall mean Szivek Enterprises, LLC, any member, officer, agent, employee, attorney or representative of Szivek; and/or any other person or entity acting or purporting to act on behalf of Szivek. 7. The terms "refer to," "relate to," "relating to" and "with regard to" shall mean concern or concerning, pertain or pertaining, discuss or discussing, mention or mentioning, reflect or reflecting, assess or assessing, record or recording, comprise or comprising, consist of or consisting of, evaluate or evaluating, analyze or analyzing the specified subject. 8. "Identify" or "identity" when used in reference to: a. An individual, shall mean to state his or her full name and present or last known address (including zip code), phone number, and present or last known position or business affiliation (designating which), and the job description. b. A firm, partnership, corporation, proprietorship, or association, shall mean to state its full name, its present or last known address (designating which), its state of organization or incorporation, the address of its principal place of business, the address(e) of any office(s) relevant to this lawsuit, and to state the name and address of each person within the entity likely to have knowledge of the relationship between that entity and the Plaintiff. 124107.1 6120106 -2- (') ( c. A document shall mean to state the date, author, sender, recipient, type of document or some other means of identifying it, a description of the subject matter of the document, and its present location and custodian. In the case of a document within the possession, custody or control of the Plaintiff, please state whether the Plaintiff will make it available to Defendants' attorney for inspection and/or copying; and in the case of a document that was, but is no longer in the possession, custody or control of Plaintiff, please state what disposition was made of it. 9. Use of plural form of any word shall be deemed to include the singular form and use of the singular form shall be deemed to include the plural form. 10. The words "and" and "or" mean "and/or." "And" as well as "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of these Interrogatories any information that might otherwise be construed to be outside their scope. "All" means "any and all;" "any" means "any and all;" "including" means "including but not limited to;" and "each" means "each and every." 11. "Complaint" means the Second ~nded Complaint filed by Szivek in the Cumberland County Court of Common Pleas at docket number 06-773. B. Instructions 1. In producing documents, you are requested to furnish all documents or things in your possession, custody or control, or known or available to you, regardless of whether such documents or things are possessed directly by you or by your attorneys or their agents, employees, representatives or investigators. 2. If any requested document is not or cannot be produced in full, produce it to the extent possible, indicating what document or portion of any such documents is not or cannot be produced and the reason therefor. 3. In producing documents, you are requested to produce the original of each document requested together with all non-identical copies and drafts of that document. 4. All documents should be produced in the same order as they are kept or maintained by you. 5. All documents should be produced in the file, folder, envelope or other container in which the documents are kept or maintained by you. If for any reason the container cannot be produced, please produce copies of all labels or other identifying markings. 6. Documents attached to each other should not be separated. 7. Documents not otherwise responsive to this request shall be produced if such documents refer to, relate to, or explain the documents called for by this request or if such 124107.1 6I2ClI06 -3- ( ') documents are attached to documents called for by this request and constitute routing slips, transmittal memoranda or letters, comments, evaluations, or similar documents. 8. To the extent that you consider any of the following document requests objectionable, respond to so much of each document request and part thereof, as is not objectionable in your view and separately state that part of each document request as to which you raise objections and each ground for such objection. 9. If you object to the production of any document on the claim of attorney/client privilege, work product privilege, or any other privilege, identify the privilege claimed as well as each document for which such privilege is claimed, together with the following information with respect to each such document: (a) Date; (b) Sender; (c) Addressee; (d) Subject; (e) The basis on which the privilege is claimed; and (f) The names of persons to whom copies of any part of the document were furnished, together with an identification of their employer and their job titles. 10. This Request seeks production of documents which are or were within the possession, custody, and/or control of Plaintiff at any location. 11. To the extent any of the documents requested by the following document requests were at one time in your possession, custody or control, but are no longer within your possession, custody or control, identify each document, when it was within your possession, custody or control, why it is no longer within your possession, custody or control and identify any individual, firm, partnership, or corporation that may be in possession, custody or control of the document. 12. This Request is deemed continuing in nature, so as to require further and supplemental production of additional documents obtained between the time of the initial production and the time of trial or hearing as required under the Pennsylvania Rules of Civil Procedure. 124107./ 612C1106 ' -4- - () (~) REOUESTS FOR PRODUCTION I. All documents that refer, relate or in any way pertain to any serVice or repair work performed by you on any power units owned by Szivek, including but not limited to two 1997 International 9400 series trucks, bearing vehicle identification numbers 2HSFHAMRXC028817 and 2HSFHAMRXVC0288 19. 2. All documents that in any way relate to any individuals interviewed or contacted by Class 8 or its attorneys, representatives, agents or employees, regardless of whether a statement was taken or whether the individual will be called as a witness, regarding the subject matter of the Complaint. 4. All documents that you intend to introduce as exhibits during the trial of this matter. 5. All documents identified in your Answers to Szivek's Interrogatories. 6. Copies of any expert report(s) that you intend to introduce as evidence during the trial of this matter. 7. All documents upon which you relied in preparing your Answers to Szivek's Interrogatories. 8. The entire contents of any investigative file or files concerning the matters described in the Complaint and any other documents generated or received by you or your attorneys through investigation of the claims alleged in the Complaint, excluding only confidential attorney-client communications. 9. All documents containing names or addresses or other information relating to, concerning or conveyed by any individuals contacted as potential witnesses. 10. All other documents of whatever kind or description upon which you or your attorneys intend to rely or may rely on in defending against Szivek's claims in this matter. 11. All other documents in your, or your attorneys' file or files concerning this action that have not been requested by any of the preceding paragraphs hereof, and that are not confidential attorney-client communications or expressly exempted from discovery by the Pennsylvania Rules of Civil Procedure. 12. All documents that you may offer or identify as exhibits and/or evidence at any deposition or at the trial of this matter. 13. All statements (as defined by the Pennsylvania Rules of Civil Procedure) summaries of statements, transcripts of recorded statements or interviews, or any memoranda or transcripts of statements or interviews of any party, person or witness, or their agents or \24807.\ 6120106 -5- ,..-. ( ) () employees, relating to, referring to, or in any way describing the allegations of the Complaint or your affirmative defenses thereto. Attached to each statement provided pursuant to the preceding request should be an explanation including: (a) the name, address and occupation of the person who gave the statement, and of the person who obtained the statement and the date and time it was obtained; and (b) the manner in which the statement was taken; i.e., electronic recording, written, oral, etc. 13. All documents prepared by you, or by a representative, agent, or anyone acting on your behalf, except your attorneys, during an investigation of the allegations and events regarding the issues of this case, or prepared in anticipation of litigation or trial of this matter. Such documents shall include any documents made or prepared up through the present time, with the exclusion of mental impressions, conclusions, or opinions respecting the value or merit of the claim or respecting strategy or tactics. 14. The complete file, whether formally designated as such or otherwise, maintained by you, including all documents that refer, relate or in any way pertain to any of the issues raised in your Complaint, excluding mental impressions, opinions and material protected by the attorney-client privilege. ~ ----pci, Joe C. Hopkins, Esquire Saul Ewing LLP Attorney I.D. No. 85096 2 North Second Street, 7th Floor Harrisburg, P A 17101 (717) 238-7525 Attorneys for Plaintiffs --.....' Dated: June 20, 2006 124107.16120106 -6- (-) (") CERTIFICATE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that a true and correct copy of the foregoing was served via U.S. Mail, First Class, postage prepaid, this 20th day of June, 2006 on the following persons: David J. Lanza, Esquire 2157 Market Street Camp Hill, P A 17011 -:1. 'PC~ } Joel C. Hopkins 114107.1 6120106 (-') (') Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SZIVEK ENTERPRISES, LLC, NO. 06-773 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW' Defendants. : PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT STAR TRUCKING CO.. LLC Plaintiff Szivek Enterprises, LLC ("Szivek"), by and through its counsel, Saul Ewing LLP, hereby propounds the following Interrogatories, pursuant to Rules 4005 and 4006 of the Pennsylvania Rules of Civil Procedure, and Cumberland County Local Rule 4005-1, upon Defendant Star Trucking Co., LLC. ("Star") and requests Star answer the following Interrogatories within (30) days, pursuant to the Pennsylvania Rules of Civil Procedure. I. DEFINITIONS AND INSTRUCTIONS A. Definitions I. The word "document" or "documents" refers to any printed, written, taped, recorded, graphic, electronic, computerized printout, or other tangible matter from whatever source, including computer disks, floppy disks, hard drives, CD-ROMs, tapes, cartridges, zip drives, or other computer data storage devices, however produced or reproduced, whether in draft or otherwise, whether sent or received, or neither, including, but not limited to, the original, a copy (if the original is not available), and all nonidentical copies (whether different from the original because of notes made on or attached to such copy or otherwise) of any and all writings, account statements, ledgers, bills, invoices, receipts, correspondence, letters, telegrams, cables, telexes, routing slips, contracts, proposals, agreements, minutes, acknowledgments, notes, marginalia, notations, memoranda, intra and interoffice communications, intra and interdepartmental communications, analyses, projections, work papers, books, papers, records, reports, diaries, journals, notes or recordings of telephone or other conversations, statements, questionnaires, schedules, computer programs or data, books of account, calendars, time cards, time sheets, graphs, charts, transcripts, tapes or recordings, photographs, pictures or film, ledgers, registers, work sheets, summaries, digests, financial statements, and all other information whether data, records or compilations, including all 12419O.16I2M16 () ( underlying, supporting or preparatory material now in your possession, custody or control, or available to you, your counsel, accountants, agents, representatives or associates. "Document" or "documents" specifically includes documents kept by individuals in their desks. at home or elsewhere. 2. "Copy" when used in reference to a document means any color, or black or white facsimile reproduction of a document, regardless of whether the facsimile reproduction is made by means of carbon papers, pressure sensitive paper, xerography or other means or process. 3. The term "communication" means any writing, or oral conversation, including, but not limited to, emails, telephone conversations, meetings, letters, telegraphic and telex communications, and includes all information relating to all oral communications and "documents" (as hereinabove defined), whether or not any such document, or other information contained therein was transmitted by its author to any other person. 4. The term "meeting" means any gathering, formal or informal, of two or more persons. 5. "Person" means any natural person, any business entity (whether a corporation, partnership, or other business association), any government or political subdivision thereof, or governmental body, commission, board, agency, bureau or department. 6. "You", "your", "Defendant", "Star Trucking Co., LLC" or "Star" shall mean Star Trucking Co., LLC, any member, officer, agent, employee, attorney or representative of Star; and/or any other person or entity acting or purporting to act on behalf of Star. 7. "Class 8 Shops, LLC" or "Class 8" shall mean Class 8 Shops, LLC, any member, officer, agent, employee, attorney or representative of Class 8; and/or any other person or entity acting or purporting to act on behalf of Class 8. 8. "Szivek Enterprises, LLC", "Robert Szivek", "Plaintiff' or "Szivek", shall mean Szivek Enterprises, LLC, any member, officer, agent, employee, attorney or representative of Szivek; and/or any other person or entity acting or purporting to act on behalf of Szivek. 9. The terms "refer to:' "relate to:' "relating to" and "with regard to" shall mean concern or concerning, pertain or pertaining, discuss or discussing, mention or mentioning, reflect or reflecting, assess or assessing, record or recording, comprise or comprising, consist of or consisting of, evaluate or evaluating, analyze or analyzing the specified subject. 10. "Identify" or "identity" when used in reference to: a) An individual, shall mean to state his or her full legal name and present or last known address (including zip code), phone number, and present or last known position or business affiliation (designating which), and the job description. 124190.1 6120106 -2- () (-' ") b) A document shall mean to state the date, author, sender, recipient, type of document or some other means of identifying it, a description of the subject matter of the document, and its present location and custodian. In the case of a document within the possession, custody or control of the Defendant, please state whether the Defendant will make it available to Plaintiffs attorney for inspection and/or copying; and in the case of a document that was, but is no longer in the possession, custody or control of Defendant, please state its present location. c) A communication shall include any oral or written communications and shall mean to state with particularity the date, maker, recipient, and substance of the communication, including the identification of all persons present during the communication, or with knowledge of the communication. d) A corporate entity shall mean to state its full corporate name; its date and place of incorporation, ifknown; and its present address and telephone number. 11. The "Contractor Lease Agreement" shall mean the agreement between Szivek and Star whereby Star agreed to lease a 1997 International 9440 Tractor from Szivek. 12. The "Hauling Agreement" shall mean the oral agreement between Szivek and Star whereby Star agreed to compensate Szivek for hauling services provided to Star. 13. The "Sales Agreement" shall mean the agreement between Szivek and Star whereby Star agreed to sell Szivek two 1997 International 9400 Tractors. 14. Use of the plural form of any word shall be deemed to include the singular form, and use of the singular form shall be deemed to include the plural form. 15. The words "and" and "or" shall mean "and/or." "And" as well as "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of these Interrogatories any information that might otherwise be construed to be outside their scope. "All" means "any and all;" "any" means "any and all;" "including" means "including but not limited to;" and "each" means "each and every." 16. "Describe" means to provide all facts relating to the matter described, including, where applicable, dates, times, places and witnesses, and also means to identify all persons with knowledge of such facts and also means to identify all documents which set out, describe, explain or otherwise refer to the facts set out in the Answer to the Interrogatory. 17. "Complaint" shall mean the Second Amended Complaint filed by Szivek in the Cumberland County Court of Common Pleas at docket number 06-773. 124790.1 6120106 -3- () (-) B. Instructions I. In responding to these Interrogatories, you are requested to identify all documents or things in your possession, custody or control, or known or available to you, regardless of whether such documents or things are possessed directly by you or by your attorneys or their agents, employees, representatives or investigators. 2. Unless otherwise indicated in a specific Interrogatory, the relevant time period for these Interrogatories is 2004 through the present. 3. If any Interrogatory cannot be responded to in full, respond to the extent possible, indicating what portion of any Interrogatory cannot be responded to and the reason therefor. 4. To the extent that you consider any of the following Interrogatories objectionable, respond to so much of each Interrogatory and part thereof, as is not objectionable in your view and separately state that part of each Interrogatory as to which you raise objections and each ground for such objection. 5. If you object to the identification of any document on the claim of attorney/client privilege, work product privilege, or any other privilege, identify the privilege claimed, as well as each document for which such privilege is claimed, together with the I following information with respect to each such document: a) Date; b) Sender; c) Addressee; d) Subject; e) The basis on which the privilege is claimed; and f) The full identification of all persons to whom copies of any part of the document were furnished, including each person's full address, phone number, present employer and job title. 6. These Interrogatories are deemed continuing. If you or anyone acting on your behalf learn of further information responsive to these Interrogatories not contained in your answer between the time of your answers to these Interrogatories and the time set for hearings in this matter, you are under a duty to promptly notify the undersigned of such further information by way of a supplemental answer. The Plaintiff reserves the right to conduct additional discovery. 124790.16120106 -4- (~) (-) 7. In lieu of identifying documents in response to these Interrogatories, you may provide copies of such documents with appropriate references to the corresponding interrogatories. 8. These Interrogatories are to be answered in writing, verified, and served upon the undersigned within 30 days of their service on you. Objections must be signed by the attorney making them. In your answers you must furnish such information as is available to you, your employees, representatives, agents, and attorneys. Your answers must be supplemented and amended as required by the Pennsylvania Rules of Civil Procedure. 124790.1 6120106 -5- (~) ( ) INTERROGATORIES 1. Identify all persons providing information for the preparation of Star Trucking's answers to these interrogatories, and for each person identify which interrogatories, by number, for which that person provided information. 2. Identify all persons that Star Trucking intends to call as a non-expert witness at the trial of the above-captioned matter, and for each such person provide a summary ofhislher expected testimony. 124790.1 6f1J)/O(J -6- n ( ) 3. Identify all persons that Star Trucking intends to call as expert witnesses at the trial of the above-captioned matter, and for each such person provide a summary ofhislher expected testimony. 4. Identify the full name, address and telephone numbers for all individuals interviewed or contacted by Star Trucking or its attorneys, representatives, agents or employees, regardless of whether a statement was taken or whether the individual will be called as a witness, regarding the subject of the Complaint. If a statement was recorded or memorialized in any manner whatsoever, identify the location of any statement, including the full name, address and telephone number of the custodian of any such statement. 124190.1 6120106 -7- () ( ) 5. If you, or someone not an expert subject to Pa. R. Civ. P. 4003.5, conducted any investigations of the events alleged in the Complaint, identify: a. each person, and the employer of each person, who conducted any investigation( s); and b. all notes, reports or other documents prepared during or as a result of the investigation(s) and the persons who have custody thereof. 6. If you intend to use any admission(s) of a party at trial, identify such admission(s ). 124790.1 6.'20/06 -8- () ( ) 7. Describe and identify all documents that relate in any way to Szivek's lease of equipment to Star Trucking, including but not limited to all invoices, receipts, accountings, trip logs, payments and all records required by 49 C.F.R. ~ 376.11 or any successor regulation. 8. Describe and identify all documents that relate in any way to Szivek's purchase of two 1997 International 9400 series trucks from Star Truckjng, including but not limited to agreements, invoices, sales receipts, service records and correspondence. /24190./ 6120106 -9- (-) ( ) 9. Describe and identify all communication between you and Szivek regarding the subject matter of the Complaint, including a description of the date and nature of such correspondence. 10. Identify all documents that refer, relate or in any way pertain to the allegations of the Complaint. 124190.1 6120106 -10- r) ( 11. Identify each person who has knowledge of facts concerning the allegations of the Complaint and the facts concerning which each is knowledgeable. q .- C?~ Joel C. Hopkms, EsqUire Saul Ewing LLP Attorney J.D. No. 85096 2 North Second Street, ih Floor Harrisburg, P A 17101 (717) 238-7525 Attorneys for Plaintiffs Dated: June 20, 2006 124790.1 6120106 -11- , . (-") () CERTIFICATE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that a true and correct copy of the foregoing was served via U.S. Mail, First Class, postage prepaid, this 20th day of June, 2006 on the following persons: David J. Lanza, Esquire 2157 Market Street Camp Hill, PA 17011 q Joel C. Hopkins ~ 124790.161'1.0106 I . () ( . ) Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SZIVEK ENTERPRISES, LLC, NO. 06-773 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. PLAINTIFF'S FIRST SET OF DOCUMENT REQUESTS DIRECTED TO DEFENDANT STAR TRUCKING CO.. LLC Plaintiff Szivek Enterprises, LLC ("Szivek"), by and through its counsel, Saul Ewing LLP, request that the following documents be produced pursuant to Rule 4009 of the Pennsylvania Rules of Civil Procedure at the offices of Saul Ewing LLP, Penn National Insurance Tower, 2 North Second Street, 7th Floor, Harrisburg, Pennsylvania 17101, within thirty (30) days of the date of service hereof for the purpose of inspecting and photocopying same, and for all purposes permitted under the applicable laws and rules. I. DEFINITIONS AND INSTRUCTIONS A. Definitions I. The word "document" or "documents" refers to any printed, written, taped, recorded, graphic, computerized printout, or other tangible matter, from whatever source, however produced or reproduced, whether in draft or otherwise, whether sent or received, or neither, including, but not limited to, the original, a copy (if the original is not available), and all nonidentical copies (whether different from the original because of notes made on or attached to such copy otherwise) of any and all writings, account statements, bills, invoices, receipts, correspondence, letters, telegrams, cables, telexes, routing slips, contracts, proposals, agreements, minutes, acknowledgments, notes, notations, memoranda, intra and interoffice communications; intra and interdepartmental communications; analyses, projections, work papers, books, papers, records, reports, diaries, journals, notes or recordings of telephone or other conversations, statements, questionnaires, schedules, computer programs or data, books of account, calendars, graphs, charts, transcripts, tapes or recordings, photographs, pictures or film, ledgers, registers, work sheets, summaries, digests, financial statements, and all other information whether data, records or compilations, including all underlying, supporting or 124106.16120106 ! ' , () ( preparatory material now in your possession, custody or control, or available to you, your counsel, accountants, agents, representatives or associates. "Document" or '~documents" specifically includes documents kept by individuals in their desks. at home or elsewhere. 2. "Copy" when used in reference to a document means any color, or black or white facsimile reproduction of a document, regardless of whether the facsimile reproduction is made by means of carbon papers, pressure sensitive paper, xerography or other means or process. 3. The term "communication" means any writing, or oral conversation, including, but not limited to, telephone conversations, meetings, letters, telegraphic and telex communications, and includes all information relating to all oral communications and "documents" (as hereinabove defined), whether or not any such document, or other information contained therein was transmitted by its author to any other person. 4. "Person" means any natural person, any business entity (whether a corporation, partnership, or other business association), any government or political subdivision thereof, or governmental body, commission, board, agency,.bureau or department. 5. "You", "your", "Defendant", "Star Trucking Co., LLC" or "Star" shall mean Start Trucking Co., LLC, any member, officer, agent, employee, attorney or representative of Star; and/or any other person or entity acting or purporting to act on behalf of Star. 6. "Szivek Enterprises, LLC", "Robert Szivek", "Plaintiff' or "Szivek", shall mean Szivek Enterprises, LLC, any member, officer, agent, employee, attorney or representative of Szivek; and/or any other person or entity acting or purporting to act on behalf of Szivek. 7. The "Contractor Lease Agreement" shall mean the agreement between Szivek and Star whereby Star agreed to lease a 1997 International 9440 Tractor from Szivek. 8. The "Hauling Agreement" shall mean the oral agreement between Szivek and Star whereby Star agreed to compensate Szivek for hauling services provided to Star. 10. The "Sales Agreement" shall mean the agreement between Szivek and Star whereby Star agreed to sell Szivek two 1997 International 9400 Tractors. 11. The terms "refer to," "relate to," "relating to" and ''with regard to" shall mean concern or concerning, pertain or pertaining, discuss or discussing, mention or mentioning, reflect or reflecting, assess or assessing, record or recording, comprise or comprising, consist of or consisting of, evaluate or evaluating, analyze or analyzing the specified subject. 12. "Identify" or "identity" when used in reference to: a. An individual, shall mean to state his or her full name and present or last known address (including zip code), phone number, and present or last known position or business affiliation (designating which), and the job description. 124106.1 6120106 -2- , "1 . (~) (~) b. A firm, partnership, corporation, proprietorship, or association, shall mean to state its full name, its present or last known address (designating which), its state of organization or incorporation, the address of its principal place of business, the address( e) of any office( s) relevant to this lawsuit, and to state the name and address of each person within the entity likely to .have knowledge of the relationship between that entity and the Plaintiff. c. A document shall mean to state the date, author, sender, recipient, type of document or some other means of identifying it, a description of the subject matter of the document, and its present location and custodian. In the case of a document within the possession, custody or control of the Plaintiff, please state whether the Plaintiff will make it available to Defendants' attorney for inspection and/or copying; and in the case of a document that was, but is no longer in the possession, custody or control of Plaintiff, please state what disposition was made of it. 13. Use of plural form of any word shall be deemed to include the singular form and use of the singular form shall be deemed to include the plural form. 14. The words "and" and "or" mean "and/or." "And" as well as "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of these Interrogatories any information that might otherwise be construed to be outside their scope. "All" means "any and all;" "any" means "any and all;" "including" means "including but not limited to;" and "each" means "each and every." 15. "Complaint" means the Second Amended Complaint filed by Szivek in the Cumberland County Court of Common Pleas at docket number 06-773. B. Instructions I. In producing documents, you are requested to furnish all documents or things in your possession, custody or control, or known or available to you, regardless of whether such documents or things are possessed directly by you or by your attorneys or their agents, employees, representatives or investigators. 2. If any requested document is not or cannot be produced in full, produce it to the extent possible, indicating what document or portion of any such documents is not or cannot be produced and the reason therefor. 3. In producing documents, you are requested to produce the original of each document requested together with all non-identical copies and drafts of that document. 4. maintained by you. All documents should be produced in the same order as they are kept or 124106.\ 6120106 -3- ,~ l. ' (") (-) 5. All documents should be produced in the file, folder, envelope or other container in which the documents are kept or maintained by you. If for any reason the container cannot be produced, please produce copies of all labels or other identifying markings. 6. Documents attached to each other should not be separated. 7. Documents not otherwise responsive to this request shall be produced if such documents refer to, relate to, or explain the documents called for by this request or if such . documents are attached to documents called for by this request and constitute routing slips, transmittal memoranda or letters, comments, evaluations, or similar documents. 8. To the extent that you consider any of the following document requests objectionable, respond to so much of each document request and part thereof, as is not objectionable in your view and separately state that part of each document request as to which you raise objections and each ground for such objection. 9. If you object to the production of any document on the claim of attorney/client privilege, work product privilege, or any other privilege, identify the privilege claimed as well as each document for which such privilege is claimed, together with the following information with respect to each such document: (a) Date; (b) Sender; (c) Addressee; (d) Subject; (e) The basis on which the privilege is claimed; and (f) The names of persons to whom copies of any part of the document were furnished, together with an identification of their employer and their job titles. 10. This Request seeks production of documents which are or were within the possession, custody, and/or control of Plaintiff at any location. 11. To the extent any of the documents requested by the following document requests were at one time in your possession, custody or control, but are no longer within your possession, custody or control, identify each document, when it was within your possession, custody or control, why it is no longer within your possession, custody or control and identify any individual, firm, partnership, or corporation that may be in possession, custody or control of the document. 12. This Request is deemed continuing in nature, so as to require further and supplemental production of additional documents obtained between the time of the initial 124106.1 6120106 -4- ... '. .. (') () production and the time of trial or hearing as required under the Pennsylvania Rules of Civil Procedure. 12_.1 el200'06 -5- .( " . () (-) REOUESTSFORPRODUCTION 1. AU documents that refer, relate or in any way pertain to Szivek's lease of equipment to Star Trucking. 2. AU documents that refer, relate or in any way pertain to Szivek's purchase of two 1997 International 9400 series trucks from Star Trucking. 3. AU documents that in any way relate to any individuals interviewed or contacted by Star or its attorneys, representatives, agents or employees, regardless of whether a statement was taken or whether the individual wiU be called as a witness, regarding the subject matter of the Complaint. 4. All documents that you intend to introduce as exhibits during the trial of this matter. 5. AU documents identified in your Answers to Szivek's Interrogatories. 6. Copies of any expert report(s) that you intend to introduce as evidence during the trial of this matter. 7. All documents upon which you relied in preparing your Answers to Szivek's Interrogatories. 8. The entire contents of any investigative file or files concerning the matters described in the Complaint and any other documents generated or received by you or your attorneys through investigation of the claims alleged in the Complaint, excluding only confidential attorney-client communications. 9. All documents containing names or addresses or other information relating to, concerning or conveyed by any individuals contacted as potential witnesses. 10. All other documents of whatever kind or description upon which you or your attorneys intend to rely or may rely on in defending against Szivek's claims in this matter. 11. All other documents in your, or your attorneys' file or files concerning this action that have not been requested by any of the preceding paragraphs hereof, and that are not confidential attorney-client communications or expressly exempted from discovery by the Pennsylvania Rules of Civil Procedure. 12. All documents that you may offer or identify as exhibits and/or evidence at any deposition or at the trial of this matter. 13. All statements (as defined by the Pennsylvania Rules of Civil Procedure) summaries of statements, transcripts of recorded statements or interviews, or any memoranda or transcripts of statements or interviews of any party, person or witness, or their agents or 124106.1 6120106 -6- ( ~. ' (~) (-') employees, relating to, referring to, or in any way describing the allegations of the Complaint or your affirmative defenses thereto. Attached to each statement provided pursuant to the preceding request should be an explanation including: (a) the name, address and occupation of the person who gave the statement, and of the person who obtained the statement and the date and time it was obtained; and (b) the manner in which the statement was taken; i.e., electronic recording, written, oral, etc. 13. All documents prepared by you, or by a representative, agent, or anyone acting on your behalf, except your attorneys, during an investigation of the allegations and events regarding the issues of this case, or prepared in anticipation oflitigationor trial of this matter. Such documents shall include any documents made or prepared up through the present time, with the exclusion of mental impressions, conclusions, or opinions respecting the value or merit of the claim or respecting strategy or tactics. 14. The complete file, whether formally designated as such or otherwise, maintained by you, including all documents that refer, relate or in any way pertain to any of the issues raised in your Complaint, excluding mental impressions, opinions and material protected by the attorney-client privilege. ~ PC~ J C. Hopkins, Esquire Saul Ewing LLP Attorney 1.0. No. 85096 2 North Second Street, 7th Floor Harrisburg, P A 17101 (717) 238-7525 Attorneys for Plaintiffs ......, Dated: June 20, 2006 12_.1 6I2CW6 -7- , t. t . t ('I (,) CERTIFICATE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that a true and correct copy of the foregoing was served via U.S. Mail, First Class, postage prepaid, this 20th day of June, 2006 on the following persons: David J. Lanza, Esquire 2157 Market Street Camp Hill, PA 17011 ~. pc4,------ . Joel C. Hopkins 124106.1 6I20i06 ( II J . David Lanza I.D. No. 55782 2157 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 Attorney for Defendants SZIVEK ENTERPRISES, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-773 v. CIVIL ACTION - LAW STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, Defendants DEFENDANTS' OBJECTIONS TO INTERROGA TORIES OF PLAINTIFF TO: Joel C. Hopkins Esq. 2 North Second Street 7th Floor Harrisburg, P A 17101 AND NOW, this 4th day of August 2006, Defendants, through their undersigned attorney, object to your Interrogatories. In accordance with Pa. R.C.P. No. 4002.1 these answers have not been filed with the Court. By: ~~ David J. Lanza Attorney 1.0. No. 55782 2157 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendants till. . GENERAL OBJECTIONS Plaintiffs object to each and every Interrogatory on the basis that the number of interrogatories, including subparts, combined with the interrogatories and subparts attached to the Admission requests, exceed the number permitted by Cumberland County Rule of Procedure 4005-1. Plaintiffs object t9 each and every Interrogatory to the extent that they seek information that is privileged, including information protected by the attorney-client privilege, the attorney work-product doctrine, or information that constitutes the subject of settlement negotiations. Plaintiffs further object to the extent that the aforesaid Interrogatories are overbroad and burdensome, and seek to obtain information which is not reasonably calculated to lead to the discovery of admissible evidence. Furthermore, objection is made to any request or demand for supplementation in addition to or in excess of the requirements imposed by Pa. R.C.P. No. 4007.4. tilt By: David Lanza fI.... . David Lanza I.D. No. 55782 2157 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 Attorney for Defendants SZIVEK ENTERPRISES, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-773 v. CIVIL ACTION - LAW STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LtC, Defendants DEFENDANTS' ANSWERS AND OBJECTIONS TO PLAINTIFF'S REQUEST FOR PROQUCTIQN QF DOCUIIEtaS TO: Joel C. Hopkins Esq. 2 North second Street '!'- Floor Harrisburg, P A 171 0 I AND NOW, this 4lb day of August 2006, Defendants, through their undersigned attorney, object to your Interrogatories. In accordance with Pa. R.C.P. No. 4002.1 these answers have not been filed with the Court. By: ~~ David J. Lanza Attorney 1.0. No. 55782 2157 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendants 1 .. II ... GENERA. I, OR.IF.CTIONS SInd A. NSWERS Defendant objects to each and every Request to the extent that they seek infonnation that is privileged, including infonnation protected by the attorney-client privilege, the attorney work-product doctrine, or infonnation that constitutes the subject of settlement negotiations. Defendant further objects to the extent that the aforesaid Requests are overbroad and burdensome, and seek to obtain infonnation which is not reasonably calculated to lead to the discovery of admissible evidence. Without waiving the aforesaid objections, the documents requested may be identified only after review of a larger group of documents. The burden of identifying the documents would be substantially the same for you as the answering Defendants. Accordingly, you will be afforded a reasonable opportunity to identify the documents, to examine or inspect them and to obtain copies pursuant to Pa. R.C.P. No. 4009.] 2(aX2Xi). Jl By: .. . () ,...., ~ c::::> C = 5: CT'\ "1:.' en > ~:n 'I' ! c: "7 G':> r .~,?~ -om c:; co :,JO -'., ()(l..l r'- ,-1,- ~~ " --r ~Ti ,-~ ":S:D ::::: " ::r: "-,..C) 5>- C' cY" c N ~ .. ~ 4 .-: .&:- -< W -< SZIVEK ENTERPRISES, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA vs. CIVIL ACTION - LAW NO. 06-773 CIVIL STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, Defendants IN RE: PLAINTIFF'S MOTION TO COMPEL ORDER AND NOW, this z -I' day of August, 2006, a brief argument on the plaintiff's motion to compel is set for Thursday, September 7, 2006, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, P A. BY THE COURT, ~ C. Hopkins, Esquire For the Plaintiff .A5avid 1. Lanza, Esquire For the Defendants ~ ~ ~\j ~~ o :rlm ., ..', liINW;lJ8NN3d AlNnCJ ''';';J~:8Vmo CiJ :C Wd lJG ~nv 900l ,\HV10NOHLOtid 3H.L ~O 38i:Ho-c:nt:l . ... Da' id J. Lanza I.O No. 55782 215 7 Market Street Car lp Hill, Pennsylvania 17011 (71 ') 730-3775 Attorney for Defendants SZI/EK ENTERPRISES, LLC, Plaintiff IN THE COUFH OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-773 CIVIL ACTION -LAW v. STI .R TRUCKING CO., LLC, and CLJ .SS 8 SHOPS, LLC, Defendants DEFENDANTS' ANSWER TO PLAINTIFF'S DISCOVERY MOTION 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. Exhibit "A" does not include Plaintiff's requests for Admissions, which requests contain and incorporate numerous additional interrogatories. 5. Admitted in Part. Denied in Part. Plaintiff's characterization of the responst: as "substantially" beyond the 30 day period is denied as a conclusion of law. By way of further denial, Defendants' response was provided nearly contemporaneously with an offer of full payment from one of the Defendants, an offer that Plaintiff rejected due to Plaintiff's stated objective of seeking cOllcession~ from the other Defendant for unrelated amounts and claims. 6. Denied. Defendant's response is pennitted by Rule 4009.12(a)(2)(1). Deff'vdants have subsequently specified 15 folders of documents that are available for Plaintiff's inspection. Plaintiff has chosen to continue these proceedings rather than examine Defendants' documems. II > 7. Admitted iD Part. DeDied iD Part. The Objections speak for themselves ;Uld result from Plaintiff's violation ofJocal rules. 8. DeDied. This avennent constitutes a conclusion of law. This averment ignores Rule 4009.12(aX2Xi), which allows the party served to "afford the party serving the requeS1: reasonable opportunity to identifY the documents, to examine or inspect them and to obtain copies." Plaintiff's argument would render Rule 4009.12(aX2Xi) meaningless. 9. DeDied. This avennent constitutes a conclusion of law. This avennent igno~ Rule 4009.12(aX2Xi) and would render such section meaningless. 10. DeDied. Plaintiffs need not "guess" which documents are being made available. Plaintiff need only inspect the documents contained in the IS folders referenced in the attached (x,rrespondence rather than seek this Court's intervention. II. DeDied. This avennent constitutes a conclusion of law. This averment ignores Cumberland County Rule 4005-1. 12. DeDied. This averment constitutes a conclusion oflaw. This avennent ignores Cumbeerland County Rule 4005-1. 13. DeDied. Every single interrogatory is objectionable as a resuh of Plaintiff's violation of Cumberland County Rule 4005-1. 14. DeDied. Every single interrogatory is objectionable as a resuh of Plaintiff's violation of Cumberland County Rule 4005-1. IS. DeDied. Every single interrogatory is objectionable as a result of Plaintiff's violation of Cumberland County Rule 4005-1. 16. DeDied. This averment constitutes a conclusion of law. 17. Admitted in Part. DeDied in Part. The Rule speaks for itself. > " 110- ' 18. Denied. Plaintiff ignores the 32 additional interrogatories (including subparts) that Plaintiff served in a separate set of interrogatories. These additional interrogatories were included with and incorporated by Plaintiff's Request for Admissions. Plaintiff cannot exceed the pennitted inteJTOgatory limits by serving multiple requests or incorporating additional interrogatories into Admission Requests. 19. Denied. Plaintiff ignores the 32 additional interrogatories (including subparts) that Plaintiff served in a separate set of interrogatories. These additional interrogatories were included with and incorporated by Plaintiff's Request for Admissions. Plaintiff cannot exceed the pennitted intetTogatory limits by serving multiple requests or incorporating additional interrogatories into Admission Requests. 20. Denied. This avennent constitutes a conclusion of law that requires no responsive pleading. Defendants have waived no objections. 21. Denied. Defendants have offered 15 folders of documents to Plaintiff, which Plaintiff has yet to examine instead of pursuing this Motion. By way of further denial, Defendant Star Trucking has offered to pay the full amount due to Plaintiff, which amount Plaintiff has refused in order to pursue this litigation against both parties. :Z:Z. Denied. This avennent constitutes a conclusion of law that requires no responsive pleading. By way of further denial, Defendant has not failed to respond to discovery. To the extent that an order is appropriate, this Court may order Plaintiff to examine Defendant" s documents instead of pursuing discovery motions. Wherefore, Defendants request that this Court dismiss Plaintiff's Motion. By: :i1-11 1 David J. Lanza Attorney 1.0. No. 55782 2157 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney fClr Defendants . .' CERTIFICA TE OF SERVICE AND NOW, this 3111 day of August, 2006, the undersigned does hereby certify that she did this date ser 'e a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Joel Hopkins, Esquire 2 North Second Street 7ft1 Floor Harrisburg, PA 17101-1604 aJL David Lanza By: 110.< Q s~ ~ J::~" 6-. ~/) rn -.') ,- (0_ :~ ,<. \ -- Q, %~ -()~\ ')"-,- "\L~) '~;~ =J; ~~ ';0( ~ ;;..< ":;>> ~:..Ii;:, CR r--' .p SZIVEK ENTERPRISES, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF v CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC., Defendants NO. 06-773 IN RE: PLAINTIFF'S MOTION TO COMPEL ORDER OF COURT '(,/r-ot, Ad. AND NOW, this 7th day of September, 2006, it appearing that certain documents have been provided, action on a motion to compel for requested production of documents is deferred, the matter to be relisted should it appear to be necessary to do so. The motion to compel interrogatories is granted. The general objection of the defendant is stricken, and the defendant is given thirty days within which to respond to each interrogatory separately, without prejudice to raise an appropriate and individualized objection. By the Court, . Hess, J. Joel C. Hopkins, Esquire For Plaintiff ~ :JJS David J. Lanza, Esquire For Defendant :bg " ;^ "... I . ~\. " ~h'~X ',~'l?d ~ .,. .'. "~\_ i"~'\ (~~.. ~ ,\lh,.~ "'1\:i..,,,\;:~t,m~n8 ~ \ r~ \ \ \\; ~rt-as9~tID'GUl J.-'dt~~~~~~(iH~H()jO :J,)F;-~,- ~ \\::\ --- SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff, NO. 06-773 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. PLAINTIFF'S MOTION FOR CONTEMPT Plaintiff Szivek Enterprises, LLC ("Szivek"), by and through its attorneys, Saul Ewing LLP, hereby respectfully request this Court enter an Order of Contempt against the Defendants, and in support thereof aver as follows: 1. Plaintiff initiated this action by filing a Complaint with this Court on February 7, 2006. 2. An Amended Complaint was subsequently filed on March 10, 2006. 3. Following the defendants' Preliminary Objections to the Amended Complaint, and this Court's April 13, 2006 Order, a Second Amended Complaint was filed on June 16, 2006. 4. On or about June 20, 2006, the Plaintiff served the defendants with Requests for Admissions, Interrogatories and Requests for Production of Documents. 5. On or about August 4, 2006, the defendants served Plaintiff s counsel with objections to Plaintiffs Interrogatories and Answers and Objections to Plaintiffs Request for Production of Documents. 127712.J 6. Because the defendant's responses to Plaintiffs discovery requests were insufficient under the Rules, the Plaintiff filed a Motion to Compel Defendants' Responses to Plaintiffs Discovery Requests (the "Discovery Motion") with this Court on August 18,2006. 7. The Court subsequently scheduled argument on the Defendants' discovery motion for September 7, 2006. 8. On or about August 31, 2006, the Defendants filed an Answer to the Discovery Motion. 9. Following oral argument on the Discovery Motion, this Court entered an Order dated September 7,2006, inter alia, providing the defendant thirty (30) days within which to respond to the Plaintiffs Interrogatories. 10. More than thirty days have passed since this Court entered its September 7,2006 Order and the Defendants have not served any additional responses to the Plaintiff s Interrogatories. 11. This Court has the inherent power to enforce its Orders and Decrees by imposing penalties and sanctions for failure to obey or comply therewith. See Jack Rees Nursing and Rehabilitation Services v. Hersperger, 410 Pa. Super. 409, 600 A.2d 207 (1991) ("It is clear that a Court can for present or past acts of misbehavior amounting to civil contempt impose an unconditional compensatory fine and/or conditional fine and imprisonment, and such fine may be payable to . . . the individual who was injured.") WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant its Motion against the Defendants for their violation of the Court's September 7,2006 Order, and further issue an order: 127712.1 -3- 1. ordering the Defendants to respond to the Plaintiff s Interrogatories without objection; 11. awarding Plaintiff counsel fees and costs associated with the filing of the Discovery Motion; 111. awarding Plaintiff counsel fees and costs associated with the filing of the within Motion; and IV. awarding all such other relief as is proper and just. Respectfully submitted, Saul Ewing LLP ~ pc~, Joel C. Hopkins, Esquire Supreme Court J.D. No. 85096 2 North Second Street, 7th Floor Harrisburg, P A 17101 (717) 257-7500 Counsel for Defendants Dated: October 17,2006 127712.1 -4- , ~ CERTIFICATE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that on this 17th day of October, 2006, I served a true and correct copy of the foregoing Motion for Contempt via First Class Mail, postage prepaid, and facsimile, upon the following counsel of record: David J. Lanza 2157 Market Street Camp Hill, PA 17011 q PC~, Joel C. Hopkins ]27712.1 (") c s: I:'G; ITHI Z~.',: t;';" r; <- ~~ ~ -< ~ c;:::) (';;:;:) Q"'\ o n ~ ~ :i! m:D ~fil (J6 :-2 =n ~:~o am o-i ?5 < \.D " ::i: - .. f-v (Ji Da\ id Lanza LD. No. 55782 2157 Market Street Carllp Hill, Pennsylvania 17011 (717) 730-3775 Attorney for Defendants SZIVEK ENTERPRISES, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-773 v. CIVIL ACTION - LAW STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, Defendants DEFENDANTS' ANSWER TO PLAINTIFF'S MOTION FOR CONTEMPT 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. By way of further answer, Defendants have served Answers to the Admission Requests, which included over 30 accompanying Interrogatories. Defendants have also produced eleven folders of documents. 5. Admitted in Part. Denied in Part. Prior to that time, Defendants served answers to Interrogatories that were included with the Admission Requests. The only interrogatories that Defendants objected to on August 4th were a separate set that, when combined with the set incorporated by the Admission Requests, exceeded Cumberland County's limitations set forth in Rule 4005-1. 6. Denied. While it is admitted that Plaintiff filed the aforesaid Motion, it is denied that Defendants' responses were insufficient. 7. Admitted. By way of further answer, Plaintiff had reviewed and picked up copies of eleven folders of documents from Defendants prior to September 7, 2006. Even though Plaintiffs had received these documents by that time, Plaintiffs refused to withdraw that portion of the Motion until the parties actually appeared in Court on the 7th of September. 8. Admitted. 9. Admitted in Part. Denied in Part. This Court entered the aforesaid Order following Defendants' withdrawal of that portion of their Objections that were based on Cumberland County 4005-1 dunng the proceedings of September 7th, 2006. 10. Denied. Defendants served complete Answers and individual objections to the remaining interrogatories on October 17, 2006. A true and correct copy of the aforesaid Answers and Objections is attached hereto as Exhibit "Au. 11. Denied. This averment constitutes a conclusion of law that requires no responsive Answer. By way of further denial, this Motion is moot insofar as Defendants provided Answers and specific Objections prior to the filing and serving of the Motion. Wherefore, Defendants request that this Honorable Court dismiss Plaintiff's Motion. By: ~{/ David J. Lanza Attorney 1.0. No. 55782 2157 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendants CERTIFICA TE OF SERVICE AND NOW, this 21st day of October, 2006, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Joel Hopkins, Esquire 2 North Second Street ih Floor Harrisburg, PA 17101-1604 t/L By: David Lanza 110-6 '.~~.."~ ;.;;. "~i_"'. . ~. "",-:,;~ :,. .~" i'.~"" ~,_:..c",...,.., __',-~,~,. _;;~~ ~...,... -~_.._,:^..~., '"'--.,.'.......-.-_,-_..."',,..~. ...,~,.._.._.._.~...-.,.,.... .,' ," ~" . i:""i'/_-:.,:..~~ '-!1<i ,~". ".' "/1) COpy. LA w OFFICh:, David J. Lanza 2157 Market Street Camp Hill, PA 17011 TELEPHONE ~'17-730-3775 F/.CSIMILE "17-737-5355 EMIIIL dlanza ~I\laatlaw.com October 17, 2006 Joel Hopkins, Esquire 2 North Second Street 7th Floor Harrisburg, P A 17101-1604 ) .. Re: Szivek v. Star et al 06-773 Dear Mr. Hopkins: Please find enclosed Answers and Objections to YOllr Interrogatories. Please do not hesitate to call me if you wish to discuss this matter. ve'<rlY ~r: David J. Lanza 110-6 Enclosures f.... / .J ... ~'. '" "';:-- ~-~ ;.',~.,... ;,:~~'-t." ,c-", ~ "f..i~"'~' - ~'. \...:~~:t:~r;::v~'.... -:-'-'-___~-. ';'.. 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" ,,~ ' '~A"'-"'~",,___,~ _" . "'), ' Da\ id Lanza 1.0. No. 55782 215 7 Market Street Car \p Hill, Pennsylvania 17011 (71 ') 730-3775 [J COpy". Attorney for Defendants Plaintiff IN THE COUfH OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-773 SZI/EK ENTERPRISES, LLC, v. CivIL ACTION - LAW SThR TRUCKING CO., LLC, and CU,SS 8 SHOPS, LLC, Defendants i DEFENDANTS' ANSWERS AND OBJECTIONS TO INTERROGATORIES OF PLAINTJ'FF TO Joel C. Hopkins Esq. 2 North Second Street 7lh Ploor Harrisburg, J> ^ 17101 AND NOW, this tn..h day of October 2006, Defendants, through their undersigned attorney, object to your Intcrogntorics. In accordance with Pa. R.C.P. No. 4002.1 these answers have not been filed with the Court. . ; '-',J,.'A: I ',!_f .:,:.,;......4:.. ,,;.~,,:,". ~.~,~"~ ':l.~""~'..',~,J "",~':-':.,{;",:';";"" ~/'i:':;'-<"L'~",,. ,'" . . , ~'.. '. . ~ '",~ 10' '~::,}C. : ,,0;: ':,..; ~.''7-:~~~,~~ "!~,",1 --,~;- ~<, ',' · ,""""\'1; BY:~ "",~'[,,'c''';8:::,q.Davld J."Lnnza ~qr(";'7";""':""~f<'1F;' >.-<;; i .. ,1;;~~!to.m~YJ:.9.:.N~,,~'~!I~,2 ....2157 Market StreElt \~ :1..,',...,,4'':';,''''v '",'-!{~"""rI''''""'r'''''> ",;':"'>~"'~- Camp tinl, PA 1}011 Telepnone' (717)7~iO-3775 Attorney fN Defenclants <\7; ,~, +>d'l~ tf-., '", f,'," ,~,' ,..t-'- ,::'~<:"l'~':'~' --:'.~;:~j;'<~:, ',>'~~'" J:,' :i;,,~.~'~:..~ ';"</:\:";'~'.:'l ~,"~ :: ;' ~. '':''''::~~" ~.'t1~~'.:rl~:&;i~""-'" ,~:~ ,,-~ t." >'; '~,.~, '~..-.~; t,,';f;.'~, F>',..~it.:i( ,:J:i ,.':~:~l ;tr-:;'.~\ ,', ,~.;..), :,:';"'~",~*.,.;".~: hi,i': ~ 11' .;~,:f't;: ..~n~'~',. ';~,iJ..~,~>'-~~J4:~i..'t~;h" "~it~r,:f:i,fl1.;;, if, l,:),:tt~i~~~~;'l :' ,>!/~;;:' ':::t/::~"'~.'"",~~i::('::i';;:'~~>:...~' ,~,),;!::"~;:.:~;f' ,', -~:-""- -~.~--~..............,,_..~~.".~.__._".'~" - GENERAL OBJECTIONS Plaintiffs object to each and every Interrogatory on the basis that the number of interrogatories, incl jding subparts, combined with the interrogatories and subparts attach 3d to the Admission requests, exc~ed the number permitted by Cumberland County Rule of Procedurfl 4:105-1. Plaintiffs object to each and every Interrogatory to the extent that they seek information that is privileged including information pro' ected by the attorney-client privilege, the attorney work-product doctrine, or information that constitutes the subject of settlement negotiations. Plaintiffs further object to the extHlt that the aforesaid Inte rrogatories are overbroad and burdensome, and seek to obtain information which is not reasonably cal( ulated to lead to the discovery of admissible evidence. i Furthermore, objection is made to any request or -demand for supplementation in addition to or in exc~ss of the requirements imposed by Pa. R.C.P. No. 4007.4. ANSWERS 1. Thomas Carbonaro 2. Not yet determined 3. Not yet determined. 4. Objection. This Interrogatory seeks Information protected by the Httorney work product doctrine and attorney client privilege. By way .of Answer. no such contact:; have been made, except for Defandant's attempts to contact P,laintiff to resolve this issue. No such statements e:<ist. . 5. ObJeCtion:";Thls'lnferrogato-,yseeks lriformation"protected by the - f,ttorney work product "-"':":,' _' ".,:.~J7:":<'~-~;"~'-:::~;'" .;::_-:"'t'';',;---J~~~,' ...j,.:, ';'~_~r-~'~ <:~--'!'::'-'f..~~ ~:f':~~~: -,' " -, <' doctrine and attorney' client privilege. By 'way of Answer, no ,'such investi"ation has been made. To the . ,'" . . . .... - "..' Jl .......' " . . extent that Defendants' responses to discovery constitute an "investigation", all documentation found pur';uant to said Investigation has been provided to Plaintiff. 6.';0'1;;'-, Not yet determlned.;<!;;j.;~;". \." . :.;,; :,',.: ''i't.._;~J.i- '....h\::.,:~i~ ",'~ ..,:'..".....i",....... ,~. 7. All such documents have been provided to Plaintiff and are in Plaintiff's possession. 8. See documents provided to Plaintiff. In addition to the work descrited on the documents alre ady provided to Plaintiff, additional work was performed but not invoiced, including repair, replacement and installation of spindle, radio, curtains, brakes, shock absorbers, batteril~s, alternator, hoses and other items. 9. Thomas Carbonaro has knowledge of Plaintiff's contract hislory with Defendants, Plaintiff's per'ormance, or lack thereof, all matters depicted in the documents provided to Plaintiff by Defendants and Defandants' repeated attempts to resolve this matter with Plaintiff. Thomas Batz alw has knowledge of the repair work on the trucks and Plaintiff's activities around the office. ~ 1 The undersigned h.ereby signs the foregoing Answers and Objections for th,~ purpose of complying witt the Pennsylvania Rules of Civil Procedure. C)~~Q.Gk~ Thomas Carbonaro, President Date: to {l(Ob " (') c ~~: " ......, C:,) = Cf"' o \) --l N W ~ :2." 111-: Fn -C'_, ::J '1" C)C:) ~~{ p. ~ > :x: Cf! (,.) 0.) Da' id J. Lanza I.o. No. 55782 215 7 Market Street Car lp Hill, Pennsylvania 17011 (71 ') 730-3775 Attorney for Defendants SZI'/EK ENTERPRISES, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA NO. 06-773 v. CIVIL ACTION - LAW STAR TRUCKING CO., LLC, and CU'-SS 8 SHOPS, LLC, Defendants DEFENDANTS' ANSWER TO COMPLAINT 1. Denied. It is denied that Plaintiff constitutes a valid entity as describeo In this averment. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in Part. Denied in Part. While Plaintiff has represented itSl31f to be engaged in the afol esaid business, it is denied, as beyond Defendants' knowledge, that Plaintiff actually engages in said bUSiness at this time or that Plaintiff reliably engaged in the aforesaid business during the term of the Agreements with Defendants. 6. Admitted in Part. Denied in Part. It is admitted that the parties entered into the aforesaid Agreement. By way of denial, the Agreement speaks for itself. 7. Admitted in Part. Denied in Part. By way of denial, the Agreement speaks for itself. 8. Admitted in Part. Denied in Part. By way of denial, the Agreement speaks for itself. 9. Admitted in Part. Denied in Part. By way of denial, the Agreement speaks for itself. 10. Admitted in Part. Denied in Part. By way of denial, the Agreement speaks for itself. 11. Admitted in Part. Denied in Part. By way of denial, the Agreement speaks for itself. 12. Admitted in Part. Denied in Part. By way of denial, the Agreement speaks for itself. 13. Denied. Defendant Star provided a fully executed copy to Plaintiff at the time of execution. By way of further denial, Plaintiff demonstrated, during Plaintiff's association with Defendants, very poor record keeping ability and a disdain for retaining documents. 14. Admitted in Part. Denied in Part. Exhibit "C" constitutes a sales agreement for only one truck for $10,000.00. A second sale of another truck took place later and was reflected in a different document. By way of further denial, the agreement speaks for itself. 15. Admitted. 16. Admitted in Part. Denied in Part. Plaintiff took delivery of one truck. Defendant Class 8 has possession of the other truck. Class 8 offered Plaintiff keys and access to the truck on several occasions during the fall of 2005, but Plaintiff never showed up to take delivery of the truck. By January 2006, storage charges began to accumulate, which Plaintiff has failed to pay. 17. Admitted. Defendant Star compensated or offered Plaintiff full compensation for all shipments. Plaintiff has refused to accept the compensation Star has offered and has refused to provide a spec.ific demand or a calculation for any specific amount. 18. Denied. Defendant Star compensated or offered Plaintiff full compensation for all shipments. Plaintiff has refused to accept the compensation Star has offered and has refused to provide a specific demand or a calculation for any specific amount. By way of further denial, Plaintiff met with Defendant Star Trucking on or about October 28, 2005 and paid to Plaintiff a settloment in the amount of $1,159.32. By way of further denial, Plaintiff met with Defendant Star Trucking on or about November 14, 2005 and paid to Plaintiff a settlement in the amount of $1,940.07. Defendant Star SUbsequently attempted to . pay other settlements to Plaintiff, but Plaintiff failed and refused to honor his appointments to accept said settlements. 19. Denied. Defendant Star has made the payments set forth above and attempted to make an additional payment as set forth in ifi18. 20. Denied. Defendants have provided eleven folders of documents pursuant to discovery requests, some of which Defendant Star offered in 2005, but which Plaintiff refused arid/or failed to accept. 21. Denied. Plaintiff and Defendants had no oral agreement for compensable services. The agreements were contained completely in Exhibits A and B of the Complaint and the purchase Agreements. 22. Denied. Plaintiff purchased no vehicles until September 22"d and afterward. Plaintiff owned no equipment until September 22nd. Plaintiff did not "haul trailers." Plaintiff E!ventually used his own equipment to pick up and deliver loads in trailers owned by Merle Wolf and leased to Star and re-Ieased to Plaintiff. 23. Denied. Plaintiff destroyed two tires through the negligence of Mr. Szivek. Plaintiff replaced those tires without authorization from Defendants or informing Defendants. Count I Plaintiff v. Star Trucking Co., LLC 24. Denied. Defendants incorporate the denials ofmJ 1-23. 25. Admitted in Part. Denied in Part. By way of denial, the Agreement speaks for itself. 26. Admitted in Part. Denied in Part. This averment constitutes a conclusion of law. By way of further denial, the Agreement speaks for itself. 27. Denied. Star Trucking has provided and offered all payments and documentation required under all contracts. 28. Denied. Star Trucking has not breached any agreement. 29. Denied. It is denied that Defendants have breached any agreement or that Plaintiff has incurred damages. 30. Denied. Plaintiff is in breach of the Agreements, in that Plaintiff has unlawfully abandoned the agreement without cause or notice in violation of 930, failed to appear for a final reconciliation despite prearranged meetings on two occasions, drove his truck in a negligent manner, engaged in accidents, delayed shipments and destroyed customer property. 31. Denied. There was no oral agreement. There was no "hauling agreement." The agreements were contained completely in Exhibits A and B of the Complaint. 32. Denied. There was no oral agreement. The agreements were contained completely in Exhibits A and B of the Complaint, both of which speak for themselves. 33. Denied. There was no oral agreement as Plaintiff alleges in 1131. The agreements were contained completely in Exhibits A and B of the Complaint, both of which speak for themselves. 34. Denied. There was no oral agreement. There was no "hauling agreement." The agreements were contained completely in Exhibits A and B of the Complaint. Defendant Star has provided and offered all required payments under any agreement. 35. Denied. There was no oral agreement. There was no "hauling agreement." The agreements were contained completely in Exhibits A and B of the Complaint. Defendant Star has provided and offered all required payments under any agreement. Defendant Star is not in breach of any agreement. Plaintiff is in breach of the Agreements as set forth in Defendants' denial in 1130. 36. Denied. There was no oral agreement. There was no "hauling agreement." The agreements were contained completely in Exhibits A and B of the Complaint. Defendant Star has provided and offered all required payments under any agreement. It is denied that Plaintiff has incurred any damages. 37. Denied. There was no oral agreement. There was no "hauling agreement." The agreements were contained completely in Exhibits A and B of the Complaint. Defendant Star has provided and offered all required payments under any agreement. Plaintiff is in breach of the agreements. Plaintiff refuses to accept final payment so that it may pursue this claim for unspecified damages. Wherefore, Defendant Star Trucking Co., LLC requests judgment in its favor and that this Complaint be dismissed, with costs and attorney fees awarded to Defendant. Count II. Plaintiff v. Star Trucking Co., LLC 38. Denied. Defendants incorporate the denials of 1m 1-37. 39. Admitted in Part. Denied in Part. Plaintiff has attached only one agreement. A separate agreement exists for each truck. 40. Denied. This averment constitutes a conclusion of law. By way of further denial, Defendant did deliver both trucks to Plaintiff. Plaintiff stored one of the trucks at Class 8 Shops' premises in the hope of finding a driver, which he failed to do, thus incurring storage charges. 41. Denied. Star Trucking delivered both trucks. Star does not have possession of Plaintiff's truck. Plaintiff stored one of the trucks at Class 8 Shops' premises until storage and repair charges had accumulated. 42. Denied. Star Trucking is not in breach of the aforesaid agreement. 43. Denied. Defendant is not in breach. Defendant delivered both trucks. Plaintiff has suffered no damages or lost revenue. In the alternative, to the extent that Plaintiff has suffered damages, such damages are the result of Plaintiff's own conduct. 44. Denied. Plaintiff has failed to pay storage charges that have accumulated while Plaintiff stored his truck at Class 8 Shops' premises. Plaintiff incurred these charges after Defendant Star delivered both trucks. Star Trucking does not have possession of any trucks of Plaintiff. Wherefore, Defendant Star Trucking Co., LLC requests judgment in its favor and that this Complaint be dismissed, with costs and attorney fees awarded to Defendant. Count III. Plaintiff v. Star Trucking Co., LLC 45. Denied. Defendants incorporate the denials of 1m 1-44. 46. Admitted. 47. Denied. Star Trucking does not have possession of Plaintiff's truck. Plaintiff voluntarily left the truck in the possession of Class 8 Shops while Plaintiff hoped for a driver to use the truck. Plaintiff allowed storage and repair charges to accumulate subsequent to the purchase of the truck, which charges are unrelated to the actual purchase and are unrelated to Star Trucking. 48. Denied. Star Trucking does not have possession of Plaintiff's truck. Class 8 Shops, which is not named in this count, has possession of the truck solely as a result of Plaintiff's conduct. The truck has been located on property leased by Class 8 Shops since Plaintiff turned possession of the truck to Class 8 and prior to the time Plaintiff began incurring storage and repair charges. 49. Denied. Star Trucking does not have possession of Plaintiff's truck. Plaintiff has incurred no damages. Wherefore, Defendant Star Trucking Co., LLC requests judgment in its favor and that this Complaint be dismissed, with costs and attorney fees awarded to Defendant. Count IV Plaintiff v. Star Trucking Co., LLC 50. Denied. Defendant Star Trucking incorporates the denials of 1Ml1-49. 51. Denied. This averment constitutes a conclusion of law. 52. Denied. No agreements exist outside the written contracts. 53. Denied. Defendant commented on Plaintiff's operation of his truck in a negligent manner, accidents, delayed shipments and destroyed customer property. At all times, Plaintiff and Defendant Star engaged in the settlement process for the purpose of paying sums to Plaintiff after making appropriate deductions. See 1118 of Defendant's Answer. Defendant Star was prevented from continuing the settlement process when Plaintiff abandoned the contract and refused to meet with Defendant despite several appointments. There is no "hauling agreement." 54. Denied. There was and is no "hauling agreement." Only the written contracts define the duties of the parties. Plaintiff did not continue performance. The only "actions and promises" of Defendant were contained in the written agreements, which terms Defendant fully performed. 55. Denied as stated. Plaintiff was obligated to perform services by the written agreements, which performance Plaintiff failed to provide. 56. Denied. There was nothing upon which Plaintiff could rely except for the written agreements, which agreements Plaintiff breached. There was no "hauling agreement." There has been no detriment to Plaintiff insofar as Plaintiff has failed to perform its duties under the agreement. Plaintiff failed to keep its appointments for the final settlements. Plaintiff continues to refuse to accept the final settlement amount in order to extract unjust amounts from Defendants. 57. Denied. Plaintiff continues to refuse payments for the final settlement amount. Plaintiff has failed to itemize or identify any amounts that it demands. The only obligations in this case arise from the written contracts. 58. Denied. Plaintiff has incurred no damages. Plaintiff has identified no damages. Wherefore, Defendant Star Trucking Co., LLC requests judgment in its favor and that this Complaint be dismissed, with costs and attorney fees awarded to Defendant. Count V. Plaintiff v. Star Trucking Co., LLC 59. Denied. Defendant incorporates the denials from 1m 1- 58. 60. Denied. This averment constitutes a conclusion of law. 61. Denied as stated. All services were provided pursuant to the written agreements, not as Plaintiff has "set forth above." Plaintiff's performance was defective. Plaintiff has breached the agreements, has abandoned the agreement and drove in a negligent manner. 62. Denied. Plaintiff solicited Defendants. Plaintiff lingered and loitered at Defendants' offices prior to the time when Defendants were prepared to operate. Plaintiff continued this conduct until Defendant Star Trucking entered into the written contracts, at which point Plaintiff performed in a negligent, erratic and unsafe manner for a period of a few weeks before abandoning the agreements in violation of ~30. 63. Denied. Star Trucking sought only the services set forth in the written agreements instead of some nonexistent oral agreement alleged by Plaintiff. Plaintiff performed these services negligently and improperly until Plaintiff abandoned the Agreements in violation of ~30 as set forth above. 64. Denied. Star Trucking was obligated to pay only pursuant to the written agreements, which Plaintiff performed in a negligent and unsatisfactory manner. Defendant Star Trucking made and offered all payments to Plaintiff as set forth in 1}18 of this Answer. 65. Denied. Star Trucking has made and offered all required payments as set forth in 1}18 of this Answer. Plaintiff has refused to accept the final settlement so that it may pursue frivolous amounts in this case. Plaintiff has made no demand for any specific amount. 66. Denied. Star Trucking has made and offered all required payments as set forth in 1}18 of thIs Answer. The "material benefits" referenced by Plaintiff constituted improper performance by Plaintiff which resulted in delayed or missing shipments, property damage to a leased trailer and damage to customers' real estate. 67. Denied. Plaintiff has been paid and offered payment for all services rendered pursuant to the written agreements. Plaintiff was entitled only to be paid pursuant to the written agreements, which Plaintiff has breached. Wherefore, Defendant Star Trucking Co., LLC requests judgment in its favor and that this Complaint be dismissed, with costs and attorney fees awarded to Defendant. Count VI. Plaintiff v. Class 8 Shops, LLC 68. Denied. Defendants incorporate the denials of 1m 1-67. 69. Admitted. By way of further answer, these companies constitute separate legal entities. 70. Admitted. 71. Admitted. 72. Admitted in Part. Denied in Part. Plaintiff specified that the money constituted a "thank you" for help that Thomas Batz had provided to Plaintiff with various items on Plaintiff's truck. The work had not been invoiced and payment was not solicited. Class 8 performed additional work that was invoiced and which remains unpaid. 73. Denied. Plaintiff did not request an invoice or a receipt. Plaintiff unexpectedly provided the money as a "thank you" for the prior work that Thomas Batz performed. 74. Admitted in Part. Denied in Part. It is denied that the payment of $2,000.00 was made pursuant to any agreement. Defendant Class 8 performed additional services for which Plaintiff has made no payments. 75. Denied. There was no agreement as set forth by Plaintiff. Class 8 never invoiced the amounts set forth by Plaintiff. Plaintiff provided the $2,000.00 as a "thank you" for work that exceeded $2,000.00 in value, including repair, replacement and installation of spindle, radio, curtains, brakes, shock absorbers, batteries, alternator, hoses and other items. By way of further denial, this averment constitutes a conclusion of law. 76. Denied. Class 8 provided invoices for all services for which Class 8 expected payment. Plaintiff never asked for invoices before providing the $2,000.00 at issue. Class 8 never sought payment of the $2,000.00. To the extent that Plaintiff now seeks to create a dispute over this $2000.00 payment, or to the extent that Plaintiff seeks to create a dispute over Class 8's services that preceded the $2,000.00 payment, Plaintiff's payment of the $2,000.00 to Class 8 created an accord and satisfaction. Class 8 provided invoices for other services, which invoices were later deducted from settlement checks referenced in ~18, which Plaintiff accepted and for which Star Trucking paid Class 8. Other invoices remain unpaid by Plaintiff. 77. Denied. Plaintiff fails to set forth an agreement or a "failure to perform." Class 8 did not breach any agreement. This averment constitutes a conclusion of law. 78. Denied. Plaintiff fails to set forth an actual agreement, a breach or any actual damages. Class 8 did not breach an agreement. Plaintiff has suffered no damages. 79. Denied. Plaintiff fails to set forth an agreement. Plaintiff fails to set forth what particular obligations Plaintiff fulfilled. Plaintiff has failed to pay for certain repairs that Class 8 performed and invoiced. Wherefore, Defendant Class 8 Shops, LLC requests judgment in its favor and that this Complaint be dismissed, with costs and attorney fees awarded to Defendant. Count VII. Plaintiff v. Class 8 Shops, LLC 80. Denied. Defendant Class 8 incorporates the denials of mr 1-79. 81. Denied. This averment constitutes a conclusion of law. 82. Admitted in Part. Denied in Part. Plaintiff paid $2,000.00 to Defendant as Defendant sets forth in answer to mr 72-76. 83. Denied. Defendant Class 8 never asked for the $2,000.00 check. Defendant invoiced for other services, for which Plaintiff made only partial payments as set forth in W6 herein. 84. Admitted in Part. Denied in Part. Defendant Class 8 ultimately kept the $2,000.00 and the partial payments as set forth in W6 herein. 85. Denied. Plaintiff made clear that the $2,000.00 payment was given as a "thank you" for prior services, including those listed inW5 herein. Plaintiff received additional services for which he did not pay. 86. Denied. Plaintiff never requested to be reimbursed. Plaintiff is not entitled to be reimbursed. Class 8 performed services exceeding in value all payments made by Plaintiff. 87. Denied. Plaintiff has failed to pay for a portion of the services that Class 8 provided. Class 8 did not "secure material benefits" from Plaintiff. 88. Denied. Plaintiff is not entitled to a refund of any payment. To the contrary, Plaintiff is required to pay additional amounts that Class 8 has invoiced. Wherefore, Defendant Class 8 Shops, LLC requests judgment in its favor and that this Complaint be dismissed, with costs and attorney fees awarded to Defendant. Count VIII Plaintiff v. Class 8 Shops, LLC 89. Denied. Defendant Class 8 incorporates the Denials from 1m 1-88. 90. agreement. Denied. Plaintiff did not pay for all repairs performed. Plaintiff has set forth no 91. Denied. requested a refund. Plaintiff has never made an "overpayment." Plaintiff has never demanded or 92. Admitted in Part. Denied in Part. Class 8 is in possession of one truck titled in Plaintiff's name. Plaintiff failed and refused to pick up the truck and allowed it to take up space for which Class 8 pays rent until after storage charges began to accumulate. 93. Denied. Class 8 has not deprived Plaintiff of the use of any property. Plaintiff never attempted to make use of the truck. Plaintiff failed to avail itself of the opportunity to take possession of the truck and continued to fail to recover the truck until after storage charges began to accumulate. 94. Denied. It is denied that Plaintiff has suffered losses. Plaintiff had no intention or ability to make use of the truck. In the alternative, any damages suffered by Plaintiff resulted solely from Plaintiff's failure to pick up the truck for several months until after storage charges began to accumulate. Wherefore, Defendant Class 8 Shops, LLC requests judgment in its favor and that this Complaint be dismissed, with costs and attorney fees awarded to Defendant. New Matter 95. Plaintiff's Complaint fails to state a claim upon which relief can be granted. 96. Plaintiff purports to set forth claims based in contract without alleging the elements of a contract claim. 97. Plaintiff's claims are barred by the doctrine of accord and satisfaction. 98. Plaintiff's claims are barred by the doctrine of estoppel. 99. Plaintiff's claims are barred by laches. 100. Plaintiff's claims are barred by the statute of frauds. 101. Plaintiff's claims are barred by the parol evidence rule. Wherefore, Defendants request judgment in their favor and that this Complaint be dismissed, with costs and attorney fees awarded to Defendants. Counterclaim of Defendant Star Trucking Co., LLC 102. Defendant incorporates the denials and averments of W 1-101. 103. Plaintiff repeatedly breached the agreements attached to the Complaint as Exhibits "A" and "8". 104. Plaintiff failed to make deliveries in a timely manner. 105. On at least one occasion, Plaintiff failed to make a delivery at all and remained incognito for over a week, thus preventing Defendant Star from ascertaining the status of the delivery. 106. Plaintiff failed to control the cargo that it contracted to deliver, resulting in damage to said cargo. 107. Plaintiff damaged leased property and property belonging to customers. 108. Plaintiff abandoned the agreements entirely in November 2005 in violation of ~ 30. 109. Plaintiff's breaches resulted in the loss of business and delivery contracts for Plaintiff. 110. Plaintiff and its agent, Rob Szivek, registered Defendant's websites in Szivek's own name without informing Defendant that they had registered the websites in this manner. 111. Plaintiff and Szivek misrepresented the manner in which they had registered the website. 112. Defendant Star relied on the misrepresentations and used the websites for e-mail. 113. Defendant Star relied on the aforesaid e-mail for communication with various customers and vendors and for the purposes of obtaining delivery jobs. 114. Defendant Star did not discover Szivek's misrepresentation of the status of the registration until said registration was required to be renewed and Szivek had the website cancelled. 115. As a result of the registration cancellation, Defendant Star was denied access to e-mail, load information and delivery jobs. 116. The conduct of Plaintiff and Szivek resulted in business interruption for Defendant Star. 117. Plaintiff has filed frivolous claims in this case that are not founded in law or fact, thus forcing Defendants to incur attorney fees. Wherefore, Defendant Star Trucking Co., LLC demands judgment against Plaintiff in an amount exceeding the compulSOry arbitration limits. Counterclaim of Defendant Class 8 Shops, LLC 118. Defendant incorporates the averments and denials of mr 1-116. 119. Defendant Class 8 pays rent for the space that it occupies. 120. Plaintiff has stored its truck in space occupied and paid for by Class 8. 121. Despite demand, Plaintiff has paid no rent or storage charges for its use of Class 8's aforesaid space. 122. Plaintiff has incurred storage charges at the rate of $245.00 per week, in the total amount of $10,535.00 since January 2006. 123. Plaintiff has incurred unpaid repair bills to Class 8 in the amount of $241.55 for the repair of Plaintiffs truck. 124. At Plaintiffs request, Class 8 performed repairs to Plaintiff's truck on numerous occasions in 2005. 125. Plaintiff has failed to pay the repair bills, despite demand. 126. Plaintiff has filed frivolous claims in this case that are not founded in law or fact, thus forcing Defendants to incur attorney fees. Wherefore, Defendant Class 8 Shops, LLC demands judgment against Plaintiff in an amount exceeding the compulsory arbitration limits. Respectfully sUbJTlitted, V/L " David J. Lanza Attorney 1.0. No. 55782 2157 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendants 11~ VERIFICATION I, Thomas Carbonaro, verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subJect to the penalties of 18 Pa. C.S.A ~904, relating to unsworn falsification to authorities. BM~~~. C1~~~ Thomas Carbonaro Date: \0\ 2..v\o\.. CERTIFICA TE OF SERVICE AND NOW, this 26th day of October, 2006, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Joel Hopkins, Esquire 2 North Second Street 7th Floor Harrisburg, PA 17101-1604 ul. By: David Lanza 11~ j:'. .J- o ~:~ "", c:::> .,~ 0-.. S? \. - --4 ~ ::r!..,., rnp'" -0 f!.l ..J'-'" ~;~ f( qln ')> 'J.J ~ r',) (]"I """Q ............ -'- w . . SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 06.773 v. ST AR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR CONTEMPT Plaintiff Szivek Enterprises, LLC ("Szivek"), by and through its attorneys, Saul Ewing LLP, hereby respond to Defendants' Answer to Plaintiffs Motion for Contempt, and in support thereof aver as follows: 1-3. No response required. 4. Defendant's response is denied as irrelevant. 5. Defendant's response is denied as irrelevant. 6. Defendant's response is denied as irrelevant. 7. Admitted in part, denied in part. It is admitted that the Defendants made documents available to the Plaintiff on the day prior to the date the parties were scheduled to argue Plaintiffs discovery motion. Defendants' counsel was in possession of those documents as early as August 25,2006, but attempted to use them as a bargaining chip in requesting the Plaintiff withdraw its Motion to Compel. Plaintiff refused to withdraw the motion with respect to document production until such documents were reviewed. 8. No response required. ] 28002.1 / 9. Denied. This Court entered its Order after determining that the Plaintiff had failed to respond to Plaintiff s Interrogatories as required by the Rules. 10. Admitted in part, denied in part. It is admitted that Defendants' counsel mailed Answers and Objections to Interrogatories of Plaintiff by letter dated October 17,2006. It is further admitted that the undersigned received the aforementioned document on October 20, 2006. The aforementioned document was not accompanied by a Certificate of Service as required by the Rules, and the Plaintiff is therefore unable to determine the precise date it was mailed. 11. Denied. It is denied that the Plaintiff s Motion for Contempt is moot as a result of the Defendants purported Answers and Objections to Interrogatories of Plaintiff. On June 20, 2006, the Plaintiff served Interrogatories on both defendants. The Answers and Objections mailed by Defendants' counsel are arguably only responsive to those requests sent to defendant Class 8 Shops, LLC. Although the aforementioned response is entitled Defendants' (indicating plural) response, the response only includes 9 paragraphs, equal to the number of requests made to Class 8 Shops. Plaintiffs Interrogatories to defendant Star Trucking Co., LLC, numbered 11. The responses provided by counsel also do not correspond to the requests made upon Star Trucking. Additionally, the fact that counsel has responded, at least in part, does not avoid the fact that Plaintiffs Motion for Contempt was filed as a direct result of the Defendants' failure to comply with this Court's September 7, 2006 Order, and that costs were incurred as a result. WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant its Motion against the Defendants for their violation of the Court's September 7,2006 Order. 128002.1 -2- .... Dated: October 27,2006 128002 J Respectfully submitted, Saul Ewing LLP ~ - ~c1~ Joel C. Hopkins, Esquire Supreme Court J.D. No. 85096 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7500 Counsel for Defendants -3- ------- .. -..., CERTIFICATE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that on this 27th day of October, 2006, I served a true and correct copy of the foregoing Motion for Contempt via First Class Mail, postage prepaid, and facsimile, upon the following counsel of record: David J. Lanza 2157 Market Street Camp Hill, PA 17011 ~~----Pcr:/~_ Joel C. Hopkins 128002.1 o ~.; .: ;:g } ~r ;-~ --:-+ l / (" ,.'\ ro-.:> <-= c::::;:,;) <.f' o CJ -l <....) o o ." -of :r. ..,., rnp -n~'1! ;}.~ ~~ U( ~"'r, ~.~ ff~ ...~) ,~ ~D -< -;j (,..) .. a '-.0 ,. .. 1 SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMM N PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff, NO. 06-773 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. PLAINTIFF'S RESPONSE TO DEFENDANTS' ANSWER TO PLAINTIFF'S MO FOR CONTEMPT Plaintiff Szivek Enterprises, LLC ("Szivek"), by and through its attorneys, S ul Ewing LLP, hereby responds to Defendants' Answer to Plaintiffs Motion for Contempt, III support thereof aver as follows: 1-3. No response required. 4. Defendant's response is denied as irrelevant. 5. Defendant's response is denied as irrelevant. 6. Defendant's response is denied as irrelevant. 7. Admitted in part, denied in part. It is admitted that the Defendants documents available to the Plaintiff on the day prior to the date the parties were scheduled argue Plaintiff s discovery motion. Defendants' counsel was in possession of those docum nts as early as August 25,2006, but attempted to use them as a bargaining chip in requesting t e Plaintiff withdraw its Motion to Compel. Plaintiff refused to withdraw the motion with res ect to document production until such documents were reviewed. 128002.2 ( 8. No response required. 9. Denied. This Court entered its Order after determining that the Plainti had failed to respond to Plaintiff s Interrogatories as required by the Rules. 10. Admitted in part, denied in part. It is admitted that Defendants' couns I mailed Answers and Objections to Interrogatories of Plaintiff by letter dated October 17,200 It is further admitted that the undersigned received the aforementioned document on October 0, 2006. The aforementioned document was not accompanied by a Certificate of Service as required by the Rules, and the Plaintiff is therefore unable to determine the precise date it wa mailed. 11. Denied. It is denied that the Plaintiff s Motion for Contempt is moot a a result of the Defendants purported Answers and Objections to Interrogatories of Plaintiff. June 20, 2006, the Plaintiff served Interrogatories on both defendants. The Answers and Objections mailed by Defendants' counsel are arguably only responsive to those requests se to defendant Class 8 Shops, LLC. Although the aforementioned response is entitled Defendant ' (indicating plural) response, the response only includes 9 paragraphs, equal to the number of requests made to Class 8 Shops. Plaintiffs Interrogatories to defendant Star Trucking Co., C, upon Star Trucking. Additionally, the fact that counsel has responded, at least in part, does ot numbered 11. The responses provided by counsel also do not correspond to the requests ma e avoid the fact that Plaintiffs Motion for Contempt was filed as a direct result of the Defenda ts' failure to comply with this Court's September 7, 2006 Order, and that costs were incurred as a I result. WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant its Mo ion against the Defendants for their violation of the Court's September 7,2006 Order. 128002.2 -2- " Dated: November 6, 2006 128002.2 Respectfully submitted, Saul Ewing LLP Joel C. Hopkins, Esquire Supreme Court J.D. No. 85096 2 North Second Street, 7th Floor Harrisburg, P A 17101 (717) 257-7500 Counsel for Defendants -3- I ' f . CERTIFICATE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that on this 6th day of November, 2 06, I served a true and correct copy of the foregoing document via First Class Mail, postage prep id, and facsimile, upon the following counsel of record: David J. Lanza 2157 Market Street Camp Hill, P A 17011 Joel C. Hopkins .......;,..-...- 128002.2 r-~ c::::; ~:::,t"'" -f' -........ (.,) " :~ (::' -- SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff, NO. 06-773 v. ST AR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. NOTICE TO PLEAD To: Star Trucking Co., LLC Class 8 Shops, LLC c/o David J. Lanza 2157 Market Street Camp Hill, PA 17011 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Preliminary Objection within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Dated: November 9, 2006 SAUL EWING LLP ~~ p~, Joel C. Hopkins, Esquire Attorney J.D. Number 85096 2 North Second Street, ih Floor Harrisburg, PAl 71 0 1 (717) 257-7500 Attorney for Plaintiff / Counterclaim Defendant 128306.1 -2- .. . SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 06-773 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' COUNTERCLAIMS Pursuant to Pa. R. Civ. P. 1017 and 1028, Plaintiff / Counterclaim Defendant Szivek Enterprises, LLC ("Szivek"), preliminarily objects to the Defendants' / Counterclaim Plaintiffs' counterclaims, and in support thereof avers as follows: 1. Plaintiff initiated this action by filing a Complaint with this Court on February 7, 2006. 2. An Amended Complaint was subsequently filed on March 10, 2006. 3. Following the defendants' Preliminary Objections to the Amended Complaint, and this Court's April 13, 2006 Order, a Second Amended Complaint was filed on June 16, 2006. 4. On or about October 17, 2006, the Plaintiff served the defendants with a default notice pursuant to the Pennsylvania Rules of Civil Procedure as a result of the defendants' failure to respond to the Plaintiff s Second Amended Complaint. 5. On or about October 26,2006, the defendants served Plaintiffs counsel with a copy of the Defendants' Answer to Complaint. 128306. J 6. The Defendants' Answer to Complaint included two purported counterclaims, and Szivek now files the within Preliminary Objection to address the deficiencies contained therein. PRELIMINARY OBJECTION - INSUFFICIENT SPECIFICITY IN A PLEADING PURSUANT TO PA. R. CIV. P. 1028(a)(3) 7. Paragraphs 1 through 6 are incorporated herein. 8. The Pennsylvania Rules of Civil Procedure permit a party to file a preliminary objection where a pleading is insufficiently specific such that it does not enable the defendant to prepare a defense. Pa. R. Civ. P. 1028(a)(3). 9. The Complaint in this case contains nothing more than general statements and allegations that are insufficient to allow Szivek to form a response thereto. 10. For example, in paragraph 104 Star Trucking Co., LLC, alleges the Plaintiff failed to make deliveries in a timely manner, yet makes no attempt to identify those deliveries. 11. Similarly, paragraphs 107 states that Szivek "damaged leased property and property belonging to customers," without identifying the property referred to. 12. Star Trucking also states that it lost business and delivery contracts without providing any meaningful detail as to the losses it may have suffered or the cause of such alleged loss. 13. The allegations set forth in Star Trucking's purported counterclaim are also scattered and disjointed that it is impossible for Szivek to determine the nature of the claims being asserted against it. 14. For example, paragraph 103 seems to allege a breach of contract, paragraph 107 may be referring to a possible tort relating to damaged property, and paragraphs 110 through 115 appear to have something to do with registering a website. 128306.1 -3- If .. 15. Defendant Class 8 Shops, LLC's counterclaim is fraught with the same deficiencies identified above, in that it provides general statements devoid of facts and attempts to set forth multiple claims ranging from the failure to pay invoices to the filing of "frivolous claims." 16. The Counterclaims asserted in this matter are defective under Rule 1028(a)(3) in that Szivek is unable to respond thereto due to an absence of any meaningful factual assertions, and that Szivek is unable to determine the nature of the counterclaims with sufficient precision to prepare a responsive pleading. WHEREFORE, Plaintiff / Counterclaim Defendant Szivek Enterprises, LLC, respectfully requests this Court sustain its Preliminary Objection and dismiss the Defendant / Counterclaim Plaintiffs' counterclaims, with prejudice. Respectfully submitted, Saul Ewing LLP ~ -----PC-~~ Joel C. Hopkins, Esquire Supreme Court J.D. No. 85096 2 North Second Street, 7th Floor Harrisburg, P A 17101 (717) 257-7500 Counsel for Defendants Dated: November 9, 2006 128306.1 -4- t'- , .. CERTIFICATE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that on this 9th day of November, 2006, I served a true and correct copy of the foregoing document, postage prepaid, upon the following counsel of record: David J. Lanza 2157 Market Street Camp Hill, P A 17011 ~r '?c4~ Joel C. Hopkins 128306.1 (') r--' c.? (-) (:- (":..-::0 -n r::.--- --I -,- C) _l,_ -r\ .,e;~'_ \"11 ["-0 f"\'. '." .;:'"' '. -. <~ f \ - ; tf~'~ C) ___i ~::..- . ,,-:'"" (.~" ~-o ::<. ." SZIVEK ENTERPRISES, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 06-773 CIVIL STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, Defendants IN RE: PLAINTIFF'S MOTION FOR CONTEMPT ORDER AND NOW, this 2o~ day of November, 2006, a brief argument on the plaintiffs motion for contempt is set for Thursday, January, 18,2007, at 3:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, P A. BY THE COURT, Joel C. Hopkins, Esquire For the Plaintiff \ ) j{- dO - ~~. David J. Lanza, Esquire F or the Defendants :rlm Of) "If ""0 f (.. [) ,. ! .. Ii ~) t+ Da' id J. Lanza J.D. No. 55782 2157 Market Street Carnp Hill, 'pennsylvania 17011 (717) 730-3775 Attorney for Defendants Plaintiff IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA NO. 06-773 SZIVEK ENTERPRISES, LLC, v. CIVIL ACTION - LAW STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, Defendants Amended Counterclaim of Defendant Star Trucking Co., LLC 102. Defendant incorporates the denials and averments of mr 1-101. 103. Plaintiff repeatedly breached the agreements attached to the Complaint as Exhibits "A" and "B", 104. Plaintiff failed to make deliveries in a timely manner or at all, includin!~ deliveries to Bozzutos in Connecticut, Donnelly in Lancaster, C&S in Harrisburg and SCF in New JerSE!Y, all of which failures occurred over the one month period in which Plaintiff purported to perform the agreements identified above. 105. On at least one occasion, Plaintiff failed to make a delivery at all ana remained incognito for over a week, thus preventing Defendant Star from ascertaining the status of the delivery. 106. Plaintiff failed to control the cargo that it contracted to deliver, resulting in damage to said cargo, including damage to cargo belonging to C.H. Robinson, which damage has resulted in a pending claim from C.H. Robinson against Defendant in the amount of $ 1,656.41. 107. PI~intiff damaged leased property and property belonging to third parties, including tires on a leased traHer as well as fencing belonging to a consignee in New Jersey, which conduct constituted breach of contract and tortious acts. 108. Plaintiff abandoned the agreements entirely in November 2005 in violation of ~ 30. 109. Plaintiff's breaches resulted in the loss of business and delivery contracts for Defendant, including reduced business from C.H. Robinson. 110. Plaintiff and its agent, Rob Szivek, registered Defendant's websites In Szivek's own name instead of Defendant's name without informing Defendant that they had registered the websites in this manner. 111. Plaintiff and Szivek fraudulently misrepresented the manner in which they had registered the website. 112. Defendant Star relied on the misrepresentations and used the websites for e-mail. 113. Defendant Star relied on. the aforesaid e-mail for communication with various customers and vendors and for the purposes of obtaining delivery jobs. 114. Defendant Star did not discover Plaintiff's and Szivek's misrepresentation of the status of the registration until said registration was required to be renewed and Szivek and Plaintiff had the website cancelled. 115. As a result of the registration cancellation, Defendant Star was denied access to e-mail, load information and delivery jobs. 116. The conduct of Plaintiff and Szivek resulted in business interruption fo," Defendant Star. 117. Plaintiff has filed frivolous claims in this case that are not founded in law or fact, thus forCing Defendants to incur attorney fees, including claims for which Plaintiff cannot provide an itemization of amounts allegedly due. Wherefor~, Defendant Star Trucking Co., LLC demands judgment against Plaintiff in an amount exceeding-the compulsory arbitration limits. Counterclaim of Defendant Class 8 Shops, LLC 118. Defendant incorporates the averments and denials of 1m 1-117. 119. Defendant Class 8 pays rent for the space that it occupies. 120. Plaintiff has stored its truck in space occupied and paid for by Class 8. 121. Despite demand, Plaintiff has paid no rent or storage charges fClr its use of Class a's aforesaid space. 122. Plaintiff has incurred storage charges at the rate of $245.00 per week, in the total amount of $10,535.00 from January 2006 to October 2006. 123. Plaintiff has incurred unpaid repair bills to Class 8 in the amount of $241.55 for the repair of Plaintiff's truck. 124. At Plaintiff's request, Class a performed repairs to Plaintiff's truck on numerous occasions in 2005. 125. Plaintiff has failed to pay the repair bills, despite demand. 126. Plaintiff has filed frivolous claims in this case that are not founded in law or fact, including claims for which Plaintiff cannot provide an itemization of the alleged damages, thus forcing Defendants to incur attorney fees. Wherefore, Defendant Class 8 Shops, LLC demands judgment against Plaintiff in an amount exceeding the compulsory arbitration limits. Res~rt:m~ed, ~. Lanza Attorney 1.0. No. 55782 2157 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendants 11Q.6 VERIFICATION I, David Lanza, verify that the statements made in this Counterclaim are true and correct to the best of my knowledge, information and belief. The information supporting this Counterclaim has been provided by Thomas Carbonaro, who is unavailable to execute this verification at this time. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A ~904, relating to unsworn falsification to authorities. JU~ t5avid Lanza Date: f1 ( 1.1/ fJ 6 By: CERTIFICA TE OF SERVICE AND NOW, this 27th day of November, 2006, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Joel Hopkins, Esquire 2 North Second Street 7ft! Floor Harrisburg, PA 17101-1604 ~~ David Lanza By: 11 ()..6 :) -'JI ::.3 ~-\1 r.,.) -..j -',-I (r" ~ \.0 :< Da' id J. Lanza I.D No. 5:5782 215 7 Market Street CaY lp Hill, Pennsylvania 17011 (71 ') 730-3775 Attorney for Defendants Plaintiff IN THE COUHT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CE-773 SZI/EK ENTERPRISES, LLC, v. CIVIL ACTION - LAW STJ H TRUCKING CO., LLC, and ClhSS 8 SHOPS, LLC, Defendants PRAECIPE TO ATTACH VER/F/CA TION To ' he Prothonotary: PIE!aSe attach to the Amended Counterclaim the verification page atta.::;hed herl~to. Respect!, uu, submitted, 9-l J "'- _ David J, Lanza Attorney I.), No. E,b782 2157 Market Street Camp Hill, PA 17011 Telephone (717) n,Q-3775 Attorney fN Defencants 110-' VERI FICA TION I, Thomas Carbonaro, verify that the statements made in this Counterclaim are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A ~904, relating to unsworn falsification to authorities, Date: \1... ~ . ~~ .. , (' , (-.~.\ l~ \ I \ '\ _.-- ~ . \. "t.. ,,-- By: ....\\~~~I;.'"'.? . '..J'.N\~\.),-\j.. Thomas Carbonaro CERTIFICA TE OF SERVICE AND NOW, this 5th day of December, 2006, the undersigned does hereby certify that she did this date serve a cCIPy of the foregoing document upon the other parties of record by causing $3me to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Joel Hopkins, Esquire 2 North Second Street 7th Floor Harrisburg, PA 17101-1604 9JL By: David Lanza 11()..l a~}~.':; o s; ..~-~ c_ ?~ -.. ~ = = cr- t::) P1 (J I CO ~ ~""Tl mp. -1"""$m ;~~ 4(') ;:,n1 ::..... -r> "'..a :..;; )::!lo -~.,. ~ 9 N co SZIVEK ENTERPRISES, LLC, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 66-773 STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. NOTICE TO PLEAD To: Star Trucking Co., LLC Class 8 Shops, LLC c/o David J. Lanza 2157 Market Street Camp Hill, P A 17011 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Preliminary Objection within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, SAUL EWING LLP ~T . PC~~ Dated: December 7, 2006 Joel C. Hopkins, Esquire Attorney I.D. Number 85096 2 North Second Street, 7th Floor Harrisburg, PAl 71 01 (717) 257-7500 Attorney for Plaintiff / Counterclaim Defendant 128985.1 SZIVEK ENTERPRISES, LLC, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 66-773 ST AR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' AMENDED COUNTERCLAIMS Pursuant to Pa. R. Civ. P. 1017 and 1028, Plaintiff / Counterclaim Defendant Szivek Enterprises, LLC ("Szivek"), preliminarily objects to the Defendants' Amended Counterclaims, and in support thereof avers as follows: 1. Plaintiff initiated this action by filing a Complaint with this Court on February 7, 2006. 2. An Amended Complaint was subsequently filed on March 10, 2006. 3. Following the defendants' Preliminary Objections to the Amended Complaint, and this Court's April 13, 2006 Order, a Second Amended Complaint was filed on June 16, 2006. 4. On or about October 17, 2006, the Plaintiff served the defendants with a default notice pursuant to the Pennsylvania Rules of Civil Procedure as a result of the defendants' failure to respond to the Plaintiff s Second Amended Complaint. 5. On or about October 26,2006, the defendants served Plaintiffs counsel with a copy of the Defendants' Answer to Complaint. 128985.1 6. The Defendants' Answer to Complaint included two purported counterclaims, and on November 9,2006, Szivek filed Preliminary Objection to address the deficiencies contained therein. 7. On or about November 27,2006, the Defendants filed a pleading amending the counterclaim of Defendant Star Trucking Co., LLC. 8. Szivek now files the within preliminary objections to address the deficiencies contained in the Defendants' November 27,2006 Amended Counterclaim. PRELIMINARY OBJECTION - INSUFFICIENT SPECIFICITY IN A PLEADING PURSUANT TO PA. R. CIV. P.I028(a)(3) 9. The above paragraphs are incorporated herein by dereference. 10. The Pennsylvania Rules of Civil Procedure permit a party to file a preliminary objection where a pleading is insufficiently specific such that it does not enable the defendant to prepare a defense. Pa. R. Civ. P. 1028(a)(3). 11. Star Trucking's Amended Counterclaim contains nothing more than general statements and allegations that are insufficient to allow Szivek to form a response thereto. 12. For example, in paragraph 105 Star Trucking alleges the Plaintiff failed to make a delivery without attempting to identify that delivery. 13. Similarly, paragraph 106 states that Plaintiff damaged cargo belonging to C.H. Robinson, but does not indicate the cargo, the shipment or the manner in which the cargo was allegedly damaged. 14. Paragraph 107 states that Plaintiff damaged tires on a leased trailer and fencing belonging to third parties, but fails to identify the date of the alleged damage, the cause of the damage or the owner of the property. 128985.1 -2- 15. Paragraph 108 states that Plaintiff "abandoned the agreements" without explaining how the agreements were abandoned or how Plaintiff s actions constituted a violation thereof. 16. The allegations set forth in Star Trucking's purported counterclaim are also scattered and disjointed that it is impossible for Szivek to determine the nature of the claims being asserted against it. 17. For example, paragraph 107 seems to allege a breach of contract and tort, while paragraph 111 may be referring to a claim of fraudulent misrepresentation and paragraphs 110 through 115 appear to have something to do with registering a website. 18. Defendant Class 8 Shops, LLC's counterclaim is fraught with the same deficiencies identified above, in that it provides general statements devoid of facts and attempts to set forth multiple claims ranging from the failure to pay invoices to the filing of "frivolous claims." 19. The Counterclaims asserted in this matter are defective under Rule 1028(a)(3) in that Szivek is unable to respond thereto due to an absence of any meaningful factual assertions, and that Szivek is unable to determine the nature of the counterclaims with sufficient precision to prepare a responsive pleading. WHEREFORE, Plaintiff / Counterclaim Defendant Szivek Enterprises, LLC, respectfully requests this Court sustain its Preliminary Objection and dismiss the Defendant / Counterclaim Plaintiffs' counterclaims, with prejudice. 128985.1 -3- PRELIMINARY OBJECTION NO.2 - FAILURE OF A PLEADING TO CONFORM TO A RULE OF COURT Failure to Conform to Rule 1019 20. The above paragraphs are incorporated herein. 21. Pa. R. Civ. P. 1019 requires allegations of fraud to be averred with particularity. 22. Star Trucking's counterclaim includes numerous bare allegations of fraud and misrepresentation that are unsupported by any specific facts. 23. For example, paragraph 111 of the counterclaim states that "Szivek fraudulently misrepresented the manner in which they had registered the website." Amended Counterclaim, ~111. 24. Nothing in the Amended Counterclaim explains what misrepresentation was made, the subject matter, date time or place of the alleged misrepresentation, or the person to whom the alleged misrepresentation was made. 25. The Complaint is defective under Pa. R. Civ. P. 1019 in that it fails to plead allegations of fraud with sufficient specificity. WHEREFORE, Plaintiff / Counterclaim Defendant Szivek Enterprises, LLC, respectfully requests this Court sustain its Preliminary Objection and dismiss the Defendant / Counterclaim Plaintiffs' counterclaims, with prejudice. Failure to Conform to Pa. R. Civ. P. l019(i) 26. The above paragraphs are incorporated herein. 27. Although unclear, it appears that the Amended Counterclaim may be attempting to set forth a claim for breach of contract against Szivek. See Amended Counterclaim, ~ 108. 28. Rule 1019(i) of the Pennsylvania Rules of Civil Procedure provides that "[w]hen any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the 128985.1 -4- material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing." 29. The Amended Counterclaim does not include the agreement between the parties as an attachment, does not indicate why such agreement is not accessible to the Plaintiff, and does not set forth the material portions of the policy upon which the Plaintiff relies in bringing this action. 30. Pursuant to Pa. R. Civ. P. 1028(a)(2), a party may preliminarily object by way of a motion to strike off a pleading because of lack of conformity to a rule of court. 31. The Amended Counterclaim is defective under Rule 10 19(i) by failing to attach a copy of the agreement between the parties, and by failing to set forth the material portions of the agreement under which they seek recovery. WHEREFORE, Plaintiff / Counterclaim Defendant Szivek Enterprises, LLC, respectfully requests this Court sustain its Preliminary Objection and dismiss the Defendant / Counterclaim Plaintiffs' counterclaims, with prejudice. PRELIMINARY OBJECTION No.3 - LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) PURSUANT TO PA. R. CIV. P. 1028(a)(4) Failure to Set Forth a Claim For Fraud 32. The above paragraphs are incorporated herein. 33. Although unclear, it appears Star Trucking's Amended Counterclaim may be attempting to set forth a claim of fraud against Szivek. 34. The allegations contained in the Amended Counterclaim are legally insufficient to sustain a claim for fraud. 128985.1 -5- 35. The six fundamental elements of the tort of fraud include; (1) a representation, (2) that is material to the transaction at hand, (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false, (4) with intent of misleading another into relying on it, (5) justifiable reliance on the misrepresentation by the plaintiff, and (6) resulting injury proximately caused by the reliance. See Gibbs v. Ernst, 538 Pa. 193,647 A.2d 882 (1994) (citing RESTATEMENT (SECOND) OF TORTS, ~ 525). 36. Star Trucking has failed to allege any facts demonstrating a material false representation was made by Szivek; that an alleged misrepresentation was made with the intent of having Star Trucking rely on it; or that Star Trucking justifiably relied on an alleged misrepresentation. 37. Because the Plaintiff has not alleged facts supporting each element of a fraud claim, the Complaint is legally insufficient to set forth such a claim and must be dismissed pursuant to Pa. R. Civ. P. 1028(a)(4). WHEREFORE, Plaintiff I Counterclaim Defendant Szivek Enterprises, LLC, respectfully requests this Court sustain its Preliminary Objection and dismiss the Defendant I Counterclaim Plaintiffs' counterclaims, with prejudice. Failure to Set Forth a Claim of Negligence 38. The above paragraphs are incorporated herein. 39. Although unclear, the Amended Complaint could be read to attempt to plead a claim against Szivek for negligence. 40. The Plaintiffs' claim for negligence is legally insufficient because it alleges only the breach of duties arising under an alleged contract between the parties, and is therefore precluded by the gist of the action doctrine. 128985.1 -6- 41. It is well established in Pennsylvania that a party may not attempt to expand recovery for basic contract claims by couching them in terms of a tort. See M, Etoll. Inc. v. Elias/Savion Advertising. Inc., 2002 Pa. Super. 347, 811 A.2d 10 (2002). 42. The "gist of the action" doctrine requires a court to "examine the claim and determine whether the 'gist' or gravamen of it sounds in contract or tort; a tort claim is maintainable only if the contract is 'collateral' to conduct that is primarily tortuous." Sunquest Info. Sys.. Inc. v. Dean Witter Reynolds. Inc., 40 F. Supp. 2d 644, 651 (W.D. Pa. 1999). 43. Where the gist of the Plaintiffs' claims sounds in contract rather than tort, the appropriate remedy is for the tort claim to be dismissed. See Brickman Group Ltd. v. CGU Ins. Co., 53 Pa. D. & CAth 71 83 (Phila. Co. 2001). 44. To the extent Szivek's alleged obligations in this arise from the contract between the parties, Star Trucking's tort claims are precluded by the gist of the action doctrine. 45. The Plaintiffs' negligence claim is also legally insufficient in that it fails to allege facts supporting each element of such a claim. 46. To plead a cause of action for negligence a plaintiff must allege the breach of a legally recognized duty or obligation that is causally connected to damages. Sharpe v. St. Luke's Hosp., _ Pa. _,821 A.2d 1215 (2003) (emphasis added). 47. The Amended Counterclaim does not allege the existence of a common law duty associated with any of the actions alleged therein. 128985.1 -7- WHEREFORE, Plaintiff / Counterclaim Defendant Szivek Enterprises, LLC, respectfully requests this Court sustain its Preliminary Objection and dismiss the Defendant / Counterclaim Plaintiffs' counterclaims, with prejudice. Respectfully submitted, Saul Ewing LLP "9- ()~ Joel C. Hopkins, Esquire Supreme Court LD. No. 85096 2 North Second Street, 7th Floor Harrisburg, PAl 71 0 1 (717) 257-7500 Counsel for Plaintiff Dated: December 7, 2006 128985 1 -8- CERTIFICATE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that on this 7th day of December, 2006, I served a true and correct copy of the foregoing document, postage prepaid, upon the following counsel of record: David J. Lanza 2157 Market Street Camp Hill, P A 17011 ~----Pc'1i~ Joel C. Hopkins 128985.1 r-.':> = ~ r;:;:J u'" CJ --4 -r .- \-q fli:!! ("") r 1\1 U \ C' ;:'~ . .~ --- C-, - >~\ ;,1 - t;iO" C) ~ ...0 Da' id J. Lanza I.D. No. 55782 2157 Market Street Car1lp Hill, Pennsylvania 17011 (71') 730-3775 Attorney for Defendants Plaintiff IN THE COURT OF COMMON PLEAS OF DA~ COUNTY, PENNSYLVANIA C..".,.., NO, 06-773 SZIVEK ENTERPRISES, LLC, v, CIVIL ACTION - LAW STAR TRUCKING CO., LLC, and CU\SS 8 SHOPS, LLC, Defendants Second Amended Counterclaim of Defendant Star Trucking Co., LLC 102. Defendant incorporates the denials and averments of 1m 1-101. 103. Plaintiff repeatedly breached the agreements attached to the COmpl;3!nt as Exhibits "An and "B", 104. Plaintiff failed to make deliveries in a timely manner or at all, includin!~ deliveries to Bozzutos in Connecticut, Donnelly in Lancaster, C&S in Harrisburg and SCF in New JerSE!Y all of which failures occurred over the one month period in which Plaintiff purported to perform the agreements identified above. 105. On at least one occasion, Plaintiff failed to make a delivery at all anc remained incognito for over a week, thus preventing Defendant Star from ascertaining the status of the deliv3ry. 106. Plaintiff failed to control the cargo that it contracted to deliver, resulting in damage to said cargo, including damage to cargo belonging to C.H. Robinson, which damage ha~, resulted in a pending clai:n from C.H. Robinson against Defendant in the amount of $1,656.41. '" 1 07. Plaintiff damaged leased property and property belonging to third parties, including tires on a leased trailer as well as fencing belonging to a consignee in New Jersey, which conduct constituted breach of contract and tortious acts. 108. Plaintiff abandoned the agreements (attached to the Complaint as Exhibits "A" and "B") entirely in November 2005 in violation of ~ 30 by failing to respond to communications from Defendant, failiflg to accept new shipments, failing to deliver cargo, failing to perform services, failing to inform Defendant of Mr. Szivek's whereabouts or of Plaintiff's intentions as to future performance. 109. Plaintiffs breaches resulted in the loss of business and delivery C'Jntracts for Defendant, inclJding reduced business from C.H. Robinson. 110. Plaintiff and its agent, Rob Szivek, registered Defendant's websites in Szivek's own name instead of Defendant's name without informing Defendant that they had registered the websites in this manner. 111. Plaintiff and Szivek fraudulently misrepresented to Defendant, at the time of the creation of the website, the manner in which they had registered the website, even though Plaintiff and Szivek knew that the website was registered in Szivek'sown name instead of Defendant's name. 112. Defendant Star relied on the misrepresentations and used the websites for e-mail. 113. Defendant Star relied on the aforesaid e-mail for communication with various customers and vendors and for the purposes of obtaining delivery jobs. 114. Defendant Star did not discover Plaintiffs and Szivek's misrepresentation of the status of the registration until said registration was required to be renewed and Szivek and Plaintiff had the website cancelled. 115. As a result of the registration cancellation, Defendant Star was denied access to e-mail, load information and delivery jobs. 116. The conduct of Plaintiff and Szivek resulted in business interruption for Defendant Star. 117. Plaintiff has filed frivolous claims in this case that are not founded in law or fact, thus forcing 'Pefendants to incur attorney fees, including claims for which Plaintiff cannot provide an itemization of amounts allegedly due. Wherefore, Defendant Star Trucking Co., LLC demands judgment against Plaintiff in an amount exceeding the compulsory arbitration limits. Counterclaim of Defendant Class 8 Shops, LLC 118. Defendant incorporates the averments and denials of mr 1-117. 119. Defendant Class 8 pays rent for the space that it occupies. 120. Plaintiff has stored its truck in space occupied and paid for by Class 8. 121. Despite demand, Plaintiff has paid no rent or storage charges for its use of Class 8's aforesaid space. 122. Plaintiff has incurred storage charges at the rate of $245.00 per week, in the total amount of $10,535.00 from January 2006 to October 2006. 123. Plaintiff has incurred unpaid repair bills to Class 8 in the amount of $241.55 for the repair of Plaintiffs truck. 124. At Plaintiff's request, Class 8 performed repairs to Plaintiffs truck on numerous occasions in 2005. 125. Plaintiff has failed to pay the repair bMls, despite demand. 126. Plaintiff has filed frivolous claims in this case that are not founded in law or fact, including claims for which Plaintiff cannot provide an itemization of the alleged damages, thus forcing Defendants to incur attorney fees. , Wherefore, Defendant Class 8 Shops, LLC demands judgment against Plaintiff in an amount exceeding the compulsory arbitration limits. Re92J"tl-illed. David J. Lanza Attorney 1.0. No. 55782 2157 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendants 11 ().6 CERTIFICA TE OF SERVICE AND NOW, this 2nd day of January, 2007, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Joel Hopkins, Esquire 2 North Second Street 7th Floor Harrisburg, PA 17101-1604 Ii! # ,I By: U fL David Lanza 110-6 "' \. \ f;l 1"-,) ,~ '::~'::) .--' ~- ..~;>... ! CJ /~ -" ,...-~ .~ ,~....> f" j:J r-.' :..< Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SZIVEK ENTERPRISES, LLC, NO. 06-773 v. ST AR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA. PURSUANT TO Pa. R.C.P. 4009.22 As a prerequisite to service of subpoenas for production of documents and things, pursuant to Pa. RC.P. 4009.22, Plaintiff, by and through its attorneys, certifies that: I. A notice of intent to serve subpoena, with copies of the subpoena attached thereto, was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena was sought to be served, 2. a copy of the notice of intent, including the proposed subpoena, is attached to this certificate as Exhibit "A", 3. no objection to the subpoena has been received, and 4. the subpoenas that will be served are identical to the subpoenas which were attached to the notice of intent to serve the subpoenas. c=::-;_ pc.~ Joel C. Hopkins, Esquire Attorney I.D. No. 85096 SAUL EWING LLP 2 North Second Street, 7th floor Harrisburg, PA 17101 (717) 257-7525 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that on this 3rd day of January, 2007, I served a true and correct copy of the foregoing document, postage prepaid, and facsimile, upon the following counsel of record: David 1. Lanza 2157 Market Street Camp Hill, PA 17011 =r - rc--~ ~ Joel C. Hopkins , " f-)( ~u !, I t It SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 06-773 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff Szivek Enterprises, LLC, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned the objection to the subpoena. If no objection is made the subpoenas may be served. Saul Ewing LLP --( ----pC~ Joel C. Hopkins, Esquire Supreme Court LD. No. 85096 2 North Second Street, 7th Floor Harrisburg, P A 17101 (717) 257-7500 Counsel for Defendants Dated: December II, 2006 129072.1 CERTIFICATE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that on this 11 th day of December, 2006, I served a true and correct copy of the foregoing document via First Class Mail, postage prepaid, and facsimile, upon the following counsel of record: David J. Lanza 2157 Market Street Camp Hill, PA 17011 ~ Joel C. Hopkins ~~ 129072 I COMMONWEALTH OF PENNSYL VANIA COUNTY OF CUMBERLAND SZIVEK ENTERPRISES, LLC, Plaintiff, v. NO. 66-773 STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: C.H. ROBINSON WORLDWIDE, INC., 1222 Forest Parkway, Suite 120, Poulsboro, NJ 08066 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: All documents that in any way refer or relate to Star Truckin!?: Company, LLC. and any and all shipments I!:ive" to Star Trucki"!! between September and December of 2005 at Saul Ewin!?: LLP, 2 North Second Street, 7th Floor, Harrisbun!, PA 17101 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above, You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Joel C. Hopkins, Esquire Saul Ewinl! LLP 2 North Second Street, 7th Floor Harrisburl!, PA 17101 TELEPHONE: (717) 257-7525 SUPREME COURT ID # 85096 A TIORNEY FOR: Plaintiff NAME: ADDRESS: BY THE COURT: Prothonotary, Civil Division Date: Seal of the Court Deputy (') r-o,) ~ c::>> c: c::>> s:: ....... I)t'l' <- ~:n n1rn ;:boo Z~'x.\ :z: Fn 6~ S'~ , ~6 -)-;~ .. <... ,<c -0 :=i! -r. 1>- - -n ~....l :x ~o ,'!f: (:) -m Pc:: t..) ~ Z ~ ~ 0 -.J -< SZIVEK ENTERPRISES, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 06-773 CIVIL STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, Defendants IN RE: PLAINTIFF'S MOTION FOR CONTEMPT ORDER AND NOW, this I ,Jt-. day of November, 2006, argument on the plaintiffs motion for contempt set for January, 18,2007, is continued to Monday, February 12,2007, at 4:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, CarlisJ~,J>A. --.--~.. '" .' / ) BYTHE COURT,/ ,",~",,"8'-""'."'. ,..-/<" / ".//;:. ,.- Kevin A. Hess, J. ~ C. Hopkins, Esquire F or the Plaintiff ~d J. Lanza, Esquire For the Defendants "\ :rlm >- a: <C \-- o u.J-,;' ~~~I ....kC1:. ml-',. ~-- -- uJ u..:x: \-- ~ \..0 (".I C':, ii- ....... ~ .';r~ -, r-- c:-..:> = c-J ..~ ~~) :J SZIVEK ENTERPRISES, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff, NO. 06-773 v. STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, CIVIL ACTION-LAW Defendants. PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND SECOND AMENDED COUNTERCLAIM Plaintiff Szivek Enterprises, LLC ("Szivek"), by and through its attorneys, Saul Ewing LLP, hereby responds to Defendants' New Matter and Second Amended Counterclaim as follows: 95. Denied as a conclusion oflaw to which no response is required. 96. Denied as a conclusion of law to which no response is required. 97, Denied as a conclusion oflaw to which no response is required, 98. Denied as a conclusion of law to which no response is required, 99. Denied as a conclusion oflaw to which no response is required, 100, Denied as a conclusion of law to which no response is required. 101, Denied as a conclusion of law to which no response is required, WHEREFORE, Szivek Enterprises, LLC, respectfully requests that judgment be entered in favor of Szivek, and that Szivek be awarded its costs and such other and further relief as the Court deems just and proper. 128983.1 COUNTERCLAIM 102. No response is required, 103. Denied as a conclusion of law to which no response is required, To the extent the averments of this paragraph are deemed factual, they are denied, By way of further answer, Szivek satisfied all obligations under the terms of the parties' agreement. 104. Denied. It is denied that Szivek failed to make the deliveries identified in this paragraph in a timely or complete manner. By way of further answer, all deliveries assigned to Szivek by Star Trucking were completed and any late deliveries were the result of circumstances beyond Szivek's control. Additionally, it is believed and therefore averred that Star Trucking was paid by its customers for all deliveries assigned to Szivek, and that any delayed deliveries had no adverse affect on Star Trucking's business, 105. Denied. It is denied that Szivek ever failed to make a delivery that it was required to make under the terms of its Contract with Star Trucking. It is also denied that Szivek ever failed to make a delivery then "remained incognito for over a week," To the contrary, Szivek was reasonably available to accept deliveries from Star Trucking at all times material hereto. 106. Denied, It is denied that Szivek ever damaged any cargo belonging to C.H. Robinson that was being transported under Star Trucking's authority. By way of further answer, Star Trucking has admitted under oath that it does not believe Szivek is responsible for the claim identified in this paragraph, and Star Trucking's allegations to the contrary in this paragraph violate Pa. R. Civ. P. 1023,1. 107, Admitted in part, denied in part. It is admitted that Szivek did contact fencing belonging to a consignee in New Jersey. By way of further answer, the aforementioned \ 2898, \ -2- fencing had been previously damaged, and it is believed and therefore averred that the consignee never presented a claim against Star Trucking or Szivek as a result of the contact. It is denied that Szivek ever intentionally or negligently damaged any leased property or property belonging to third parties while operating under Star Trucking's authority. It is also denied that any alleged property damage constitutes a breach of contract or tortious act, which is a conclusion of law to which no response is required. By way of further answer, at one point Szivek attempted to pick up a trailer containing Star Trucking property, only to find that the trailer's brakes were rusted in a locked position, During the process of attempting to free the brakes, the tires on the trailer were damaged, and Szivek had the brakes freed and the tires replaced at his expense. 108. Denied as a conclusion of law to which no response is required. To the extent these averments are deemed factual, they are denied, By way of further answer, Szivek fully and faithfully performed its obligations under the terms of the parties' agreement, including providing Star Trucking with notice of his intent to terminate the parties' agreement as required thereby. Moreover, as of this date Star Trucking has not produced a copy of the November 1, 2005 Contractor Lease Agreement, and such agreement therefore is voidable as a matter of law. At no time did Star Trucking provide Szivek written notice of any alleged breach of the terms of the parties' agreement as required thereby, nor did Star Trucking provide Szivek an opportunity to correct any alleged breach. Finally, Szivek was under no obligation to accept any specific number of shipments from Star Trucking, nor was Szivek obligated to advise Star Trucking of Szivek's "whereabouts or intentions," Finally, Szivek never failed to deliver any cargo assigned to Szivek by Star Trucking. 109. Denied as a conclusion oflaw to which no response is required, To the extent these averments are deemed factual, they are denied. By way of further answer, Szivek 128983 1 -3- did not breach its agreement with Star Trucking, and therefore no such purported breaches could have resulted in a loss of business for Star Trucking. 110, Denied. It is denied that Szivek registered Defendant's websites in his own name without informing Star Trucking. To the contrary, Szivek registered certain domain names for Star Trucking and Class 8 as requested by the Defendants, and only listed Szivek as the registrant, not the owner of those domain names, Moreover, as of this date Star Trucking and Class 8 have failed to take the necessary actions to have the domain names registered in their names. 111. Denied as a conclusion of law to which no response is required. To the extent these averments are deemed factual, they are denied. By way of further answer, Szivek registered domain names for Star Trucking and Class 8 with the understanding that the administration would subsequently be moved to the Defendants' designee, 112. Denied as a conclusion of law to which no response is required. 113. Denied. After reasonable investigation Szivek is without sufficient information to form a belief as to the averments of this paragraph, and they are therefore denied, 114. Denied. It is denied that any misrepresentation was made with respect to the registration of the domain names, and therefore it is denied that Star ever discovered any alleged misrepresentation. By way of further answer, all domain names registered by Szivek on the Defendants' behalf are registered until October of 2007 and are available for the Defendants' use. 115, Denied. The domain names registered by Szivek on the Defendants' behalf remain registered and available for the Defendants' use, By way of further answer, the vast majority of the domain names that were registered under Szivek's account were assigned to 128983.1 -4- a domain name server that failed. As a result of that failure, all domains registered under Szivek's account were reset to the registrar's default domain name server. If Star Trucking and Class 8 had transferred their domains to their own accounts as the parties agreed, the aforementioned server problem would not have been an issue. Furthermore, when Szivek learned of the aforementioned server problem with other domains registered by Szivek the problem was remedied within 24 hours. Had Star Trucking or Class 8 provided Szivek with notice of the problem, the same remedy would have been available to the Defendants, 116, Denied as a conclusion of law to which no response is required. By way of further answer, it is denied that Szivek's conduct result in any business interruption for Star Trucking. 117. Denied as a conclusion of law to which no response is required. WHEREFORE, Szivek Enterprises, LLC, respectfully requests that the Counterclaim Plaintiffs' Second Amended Counterclaims be dismissed, that the Counterclaim Plaintiffs be denied all relief requested, that judgment be entered in favor of Szivek, and that Szivek be awarded its costs and such other and further relief as the Court deems just and proper. COUNTERCLAIM OF DEFENDANT CLASS 8 SHOPS, LLC 118. No response is required. 119. Denied. After reasonable investigation Szivek is without sufficient information to forma belief as to the averments of this paragraph, and those averments are therefore denied. 120, Denied, It is denied that Szivek has "stored" its truck in space occupied and paid for by Class 8. To the contrary, Star Trucking, which shares common ownership with \28981\ -5- Class 8, and together the two defendants have conspired to wrongfully possess and retain a tractor owned by Szivek. 121. Admitted. By way of further answer, it is denied that Szivek owes Class 8 any storage or rental charges in association with Szivek's tractor being wrongfully retained on Class 8's property. Moreover, Class 8 only began charging storage on the unit after Szivek initiated this action in an effort to have the truck returned to Szivek's possession, 122. Denied as a conclusion of law to which no response is required. By way of further answer, Star Trucking and Class 8 have conspired to wrongfully possess and retain the tractor owned by Szivek, and are not able to charge Szivek as a result of their wrongful acts, 123. Denied. It is denied that Szivek has failed to pay Class 8 any amounts associated with the repair ofSzivek's truck, To the contrary, Class 8 was advised that it could offset the $241.55 from all amounts due Szivek under its agreement with Star Trucking, which it is believed and therefore averred has been done. 124, Admitted. 125, Denied. It is denied that Szivek has failed to pay Class 8 any amounts associated with the repair of Szivek's truck. To the contrary, Class 8 was advised that it could offset the $241.55 from all amounts due Szivek under its agreement with Star Trucking, which it is believed and therefore averred has been done, 126. Denied as a conclusion of law to which no response is required. By way of further answer, the only claims of Szivek's that are not yet supported are those that are based on information that Star Trucking has wrongfully withheld from Szivek in violation of the parties' agreement and federal law. 128983 \ -6- WHEREFORE, Szivek Enterprises, LLC, respectfully requests that the Counterclaim Plaintiffs' Second Amended Counterclaims be dismissed, that the Counterclaim Plaintiffs be denied all relief requested, that judgment be entered in favor of Szivek, and that Szivek be awarded its costs and such other and further relief as the Court deems just and proper. NEW MATTER TO DEFENDANTS' COUNTERCLAIMS 127, The above paragraph are incorporated herein by reference. 128. Counterclaim Plaintiffs' fail to state a cause of action upon which relief may be granted. 129, Counterclaim Plaintiffs' claims are barred in whole or in part by the applicable statute of limitations. 130. Counterclaim Plaintiffs' claims are barred in whole or in part by the doctrines of laches and estoppel. 131. Counterclaim Plaintiffs' claims are barred in whole or in part by the doctrine of waiver. 132. Counterclaim Plaintiffs' claims are barred in whole or in part by the doctrine of accord and satisfaction. 133. Counterclaim Plaintiffs' claims are barred in whole or in part by the doctrine of release. 134. There has been no breach of contract; Szivek's actions have been and are justified as a matter of law. 135. Counterclaim Plaintiffs' claims are barred by its failure to satisfy all conditions precedent to Szivek's performance under the parties' agreement. 128983 I -7- 136. Counterclaim Plaintiffs' failure to pay all amounts due and owing under its agreement with Szivek constitutes a material breach thereof that bars the Counterclaim Plaintiffs' claims. 137. Counterclaim Plaintiffs' failure to pay all amounts due and owing under its agreements with Szivek constitutes non-performance that bars Counterclaim Plaintiffs claims, 138. Counterclaim Plaintiffs' claims are offset by the amounts it owes Szivek under the terms of the parties' agreement. 139, Counterclaim Plaintiffs' claims are barred by the doctrine of unclean hands. 140. Szivek hereby incorporates all defenses available under its agreements with the Counterclaim Plaintiffs. WHEREFORE, Szivek Enterprises, LLC, respectfully requests that the Counterclaim Plaintiffs' Second Amended Counterclaims be dismissed, that the Counterclaim Plaintiffs be denied all relief requested, that judgment be entered in favor of Szivek, and that Szivek be awarded its costs and such other and further relief as the Court deems just and proper. Respectfully submitted, Saul Ewing LLP -7-----OC~ Joel C. Hopkins, Esquire Supreme Court LD, No, 85096 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7500 Counsel for Defendants ~ Dated: January 11, 2007 128983 I -8- . CERTIFICA TE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that on this 11 th day of January, 2007, I served a true and correct copy of the foregoing document via First Class Mail, postage prepaid, and facsimile, upon the following counsel of record: David 1. Lanza 2157 Market Street Camp Hill, PA 17011 ~- Joel C, Hopkins n~_ r . ..;:1 " 0') 1'.> ,= ':::> --.. <- :c:t. ~ o ., :t-,., fll-:..J r- uiTl ~U C:J :;(~ (~rn ;:;:l ~n -< N :;? C.--? SZIVEK ENTERPRISES, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA vs. CIVIL ACTION - LAW NO. 06-773 CIVIL STAR TRUCKING CO., LLC, and CLASS 8 SHOPS, LLC, Defendants IN RE: PLAINTIFF'S MOTION FOR CONTEMPT ORDER AND NOW, this l.r ,. day of February, 2007, following argument thereon, the motion of the plaintiff for contempt is DENIED. BY THE COURT, :rlm ~ ~atthew Haar, Esquire For the Plaintiff ~vid J. Lanza, Esquire F or the Defendants \f\\"i'\i ^It\'sNN3d }J.NnOJ Ct"rsI1H;9~ro 9Z :6 W~ '1 \ 83~ lnnl ,\.ftoI~?U\O:14 3HJ. :iO I\QY. u~