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Home My WebLink About02-1225POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Pa. I. D. No. 15706 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Leo D. Farrell IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEO D. FARRELL, V. Plaintiff CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendant Civil Action No. O~ PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a Writ of Summons upon the following Defendant, notifying them that an action has been commenced in Cumberland County, Pennsylvania, which they will be required to defend. Please return the writ of summons to the undersigned for service. Thank you. CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendant 6533 Sierra Lane Dublin CA 94568. March 11, 2002 POWELL, TRACHTMAN, LOGAN, CARRLE, BOVv~MM~ & LOMBARDO, P C. C. Grainger Bo~aan Pa. I.D. No. 15706 114 North Second Street Harrisburg, PA 17101 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEO D. FARRELL, V. Plaintiff CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendant Civil Action No. t~ TO: Date: WRIT OF SUMMONS CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendant You are notified that LEO D. FARRELL Plaintiff, has commenced an action against you. March ~ 2002 Curt Long, Prothonotary Deputy IN RE: NICHOLAS WILLIAM THOMPSON, CHANGE OF NAME : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02-1255 CIVIL TERM : : CHANGE OF NAME DECREE AND NOW, this ~-*t ~ day of ~,/~ ! ,2002, upon hearing on the Petition for Change of Name and upon motion of John H. Broujos, Esquire, attorney for Petitioner, and upon presentation of proof of publication of notice as required by law together with proof that there are no judgments or decrees of record or any other matter of like effect against Petitioner and it appearing that there is no legal objection to the granting of the prayer of the Petitioner; IT IS ORDERED AND DECREED that the name of Petitioner Nicholas William Thompson be and is hereby changed to Nicholas William McDonough. BY THE COURT, J POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Pa. I. D. No. 15706 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Leo D. Farrell IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEO D. FARRELL, V. Plaintiff CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendant Civil Action No. 02-1225 Civil Term NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served by entering a written appearance personally, or by an 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 claim or relief requested by the defendant. 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. LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle PA 17013 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEME LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle PA 17013 POWELL, TPokCHTMAN, LOGAN, CARRLE, BO~AN & LOMBARDO, P.C. C. Grai~ger t~wman Attorneys for Leo D. Farrell, Plaintiff POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Pa. I. D. No. 15706 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Leo D. Farrell IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEO D. FARRELL, Plaintiff CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendant Civil Action No. 02-1225 Civil Term COMPLAINT COMES NOW Plaintiff LEO D. FARRELL, by its attorneys C. Grainger Bowman and POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C., complaining of CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., and alleges as follows: The Parties 1. Plaintiff LEO D. FARRELL ("Farrell") is an adult individual with a principal place of business at Suite 204, 2025 Technology Parkway, Mechanicsburg, Pennsylvania 17050. Farrell operates the professional plastic surgery practice of Fan'ell Plastic Surgery and Laser Center at the aforesaid address. 2. Defendant CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC. ("Con-Bio") is a co]~oration with a principal place of business at 3150 Central Expressway, Santa Clara CA 95051. Con-Bio is engaged in the business of designing, manufacturing and selling advanced medical equipment for profit. Con- Bio engages in this business within the Commonwealth of Pennsylvania and other locations throughout the United States. 3. This Court has jurisdiction over this matter purs'aant to 42 Pa.C.S.A. Section 5301 because Con-Bio carries on a continuous and systematic part of its general business within this Commonwealth. 4. Farrell was an on-going customer of Con-Bio. Con-Bio pursued Farrell to induce Farrell to purchase the Diode Laser referred to in paragraph 7 below, and to purchase the Microdermabrasion machine referred to in paragraph 15 below. 5. The Court of Common Pleas of Cumberland County is the appropriate venue for this matter, because the causes of action set forth in this Complaint arose in Cumberland County, the transactions out of which the cause of action arose took place in Cumberland County, and Farrell's principal place of business is located in Cumberland County. Nature of the Action 6. Farrell brings this action for breach of contract, fraud, violation of the Unfair Trade Practices and Consumer Protection Law, constTuctive fraud, and negligent misrepresentation against Con-Bio as a result of Con-Bio's sale of equipment to Farrell on written purchase orders, which sale resulted in the delivery to Farrell of equipment which had little value, that is to say, value which was not equivalent to the: purchase price, all of which is more specifically set forth below. The sale and purchase was entered into based upon representations of Con-Bio to Farrell which were false, misleading and which Con-Bio had no 2 intention of fulfilling. CBN Diode/532 Diode Pumped Nd: YAG Laser Under date of April 30, 1998 and Quote #RB2002, Con-Bio sold Farrell a CBN Diode/532 Diode Pumped Nd: YAG Laser ("Diode Laser") for use in Farrell's practice with numerous representations. The representations were untrue and[ fraudulent, but were relied upon by Farrell as Farrell entered into the agreement for the purchase and sale of the Diode Laser. The written purchase order Quote #RB2002 is attached hereto as Exhibit "A" and incorporated herein by reference. 8. Con-Bio's representatives represented that the Diode Laser had solid state mechanics and that Farrell did not need a service contract. 9. At about one year following purchase, Farrell experienced problems with the Diode Laser in the following particulars. (a) Contrary to reasonable expectations, Farrell needled to re-calibrate the Diode Laser every time the equipment was used. (b) "High power" readings caused problems that Con-Bio representatives did not solve. (c) Farrell sought a service contract for the Diode Laser from Con-Bio, but on August 3, 2000, the Con-Bio representatives advised thai: Con-Bio would not sell Farrell a service contract for the Diode Laser. Instead, Con-Bio advised that a service representative would be priced at $250 per hour plus the cost of the technician's travel to provide Con-Bio repair. On or about September 6, 2000, service technician Ryan Prendergast replaced a board governing the equipment's software 3 which resulted in getting the Diode Laser operational for a short time. The repair cost was $3567.36. (d) Within two weeks of the first repair, the same "high reading" problem recurred, and Farrell was again forced to discontinue use of the Diode Laser. (e) The Diode Laser would continuously show "high power" readings, making it professionally dangerous for Farrell to administer treatment on his patients with the Diode Laser. Therefore, Farrell discontinued use of the Diode Laser. Farrell was advised by Con-Bio service manager Steve iRomer that the "high power" reading problem was in the diode, who further advised that Con-Bio could not obtain the diode, because replacement parts were not available. (f) On November 20, 2000, Farrell was advised by Chris Prendergast, an employee of Con-Bio, that Con-Bio, as a company, was aware that there were software problems with the Diode Laser, and that he was aware of methods of repair which would make the Diode Laser function and marketable for re-sale to another. Specifically, Chris Prendergast advised that he personally knew how to re-make the laser functional and that he could facilitate sale to another physician out of state. 10. Prior to November 20, 2000, Farrell was not satisfied that on any given day the Diode Laser would function and operate safely and properly. After November 20, 2000, Farrell had no intention to use, and did not use the Diode Laser in his professional practice. 11. Accordingly, Farrell did sell the Diode Laser to ~mother at a discount, with the coordination of Chris Prendergast. Farrell's resale of the Diode. Laser was not Farrell's intent at 4 the time of his purchase, but it was the only alternative left to Farrell. 12. Throughout Farrell's ownership of the Diode Laser, Con-Bio failed to correct the recurring problems and failed to make available replacement diodes to make the Diode Laser meet its intended purpose for Farrell. 13. Upon information and belief, Farrell alleges thai: Con-Bio never had the capability or the capacity or the knowledge or the intention to make the Diode Laser operate on a continuous basis for the express purpose for which it was sold by Con-Bio and purchased by Farrell, and that the Diode Laser was not of merchantable quality. Upon information and belief, Farrell alleges that Con-Bio knew that the Diode Laser would not operate on a continuous basis for the express purpose for which it was sold by Con-Bio and purchased by Farrell, and that the Diode Laser was not of merchantable quality. 14. Farrell was damaged in that the Diode Laser wa:g of little value to Farrell, and Farrell lost his investment and professional time as a result of relying on the representations of the representatives of Con-Bio and making the purchase of the Diode Laser. Further, Farrell was unable to use the Diode Laser with the knowledge of these problems, for Farrell would not subject his patients to the risks of the use of this machine for people under his professional care. Sparkle Peel Microdermabrasion Machine 15. Under date of January 17, 2000 and Quote #RB2129, Con-Bio sold Farrell a Sparkle Peel Microdermabrasion Machine ("MicrodermabrasiG.n machine") for use in Farrell's practice with numerous representations. The representations were untrue and fraudulent, but were relied upon by Farrell as Farrell entered into the agreement for the purchase and sale of the Microdermabrasion machine. The written purchase order Quote #RB2129 is attached hereto as 5 Exhibit "B" and incorporated herein by reference. 16. Con-Bio's representatives represented that the Microdermabrasion machine worked well to mildly buffthe skin surface in the treatment of ~kin disorders. 17. At about two months following purchase, Farrell experienced problems with the Microdermabrasion machine, in that patients complained of unusual rough and burning sensations during treatments with the Microdermabrasion machine, and the lack of crystal flow. To Farrell and his patients, this was entirely unacceptable. 18. Con-Bio failed to correct the recurring problems with the Microdermabrasion machine and failed to make acceptable repairs to make the Microdermabrasion machine meet its intended purpose. 19. Upon information and belief, Farrell alleges thai: Con-Bio never had the capability or the capacity or the knowledge or the intention to make the Microdermabrasion machine operate on a continuous basis for the express purpose for which it was sold by Con-Bio and purchased by Farrell, and that the Microdermabrasion machine was not of merchantable quality. Upon information and belief, Farrell alleges that Con-Bio knew that the Microdermabrasion machine would not operate on a continuous basis for the express purpose for which it was sold by Con-Bio and purchased by Farrell, and that the Microdermabrasion machine was not of merchantable quality. 20. When Farrell brought the above-referenced problems to the attention of Con-Bio President/CEO Lee Flowers, Flowers did not deny the problems, but instead offered to sell Farrell another laser machine at a discount, with a certain value for the Microdermabrasion machine as a credit toward the purchase of the new machine. This business proposal was not 6 acceptable to Fan:ell, because it deprived him of the value of the machine which he had purchased for a particular purpose, and would result in further payments to Con-Bio in whom Farrell was losing confidence. 21. Farrell was damaged in that the Microdermabrasion machine was of no value to Farrell, and Farrell lost his investment and professional time as a result of relying on the representations of the representatives of Con-Bio and making the purchase of the valueless Microdermabrasion machine. Further, Farrell would not subject his patients to the risks of the use of this machine for people under his professional care. COUNT I (Breach of ContracQ 22. Farrell restates and realleges paragraphs 1 - 20 as if set forth in full. 23. Con-Bio's conduct constitutes a breach of the contractual undertaking of Con-Bio to furnish and supply a functional and operational Diode Laser and Microdermabrasion machine, that is, machines that are merchantable and without defect. 24. On the contrary, however, Con-Bio furnished and supplied a defective Diode Laser and Microdermabrasion machine, notwithstanding FarrellL's payment in good faith of the full purchase price set forth in the Exhibits "A" and "B" to this Complaint. 25. Con-Bio has breached a valid and enforceable contract, by failing and refusing to furnish and supply the equipment which would operate as represented to Farrell by Con-Bio. 26. 27. Complaint. 28. Con-Bio has breached the implied covenant of good faith and fair dealing. Farrell has performed all conditions precedent required of it to the bringing of this As a proximate result of Con-Bio's breach of contract, Farrell has sustained damages. WHEREFORE, Farrell respectfully requests that this Court enter judgment against Con- Bio and award the following relief: (a) damages in an amount to be proven at trial in excess of $35,000.00; (b) prejudgment interest; (c) such other relief as this Court deems just and appropriate. COUNT II (Fraud) 29. Farrell restates and realleges paragraphs 1 - 28 as if set forth in full. 30. Con-Bio induced Farrell to enter into two purchase orders for the Diode Laser and the Microdermabrasion machine by representing to Farrell that Farrell was purchasing fully functional and operational equipment that could be used in the normal fashion in Farrell's practice. 31. Con-Bio made representations to Farrell that the Diode Laser and the Microdermabrasion machine would be functional and operational, and Con-Bio knew that these representations were false, or had reason to know they were false, or recklessly made these representations without knowing whether they were true or false. 32. Con-Bio made these representations with the intent to defraud. 33. Alternatively, Con-Bio had intentionally concealed or suppressed a material fact and/or mechanical defect in the representations it made to Farrell regarding the Diode Laser and the Microdermabrasion machine, which Con-Bio was under a duty to disclose to Farrell, rather than to allow Farrell to rely upon Con-Bio's representations to Farrell's detriment. 34. Alternatively, Con-Bio made false promises as to matters material to the decision of Farrell to purchase the Diode Laser and the Microdermabrasion machine, which were made with the intent to defraud Farrell. 35. Farrell was unaware of the falsity of the representations or of Con-Bio's concealments or false promises when they occurred, and Farrell acted in justifiable reliance of the representations, concealments or false promises to Farrell's financial detriment, that is to say, Farrell suffered actual damages, and Farrell was put at risk of losing his good reputation. 36. Con-Bio never intended that the Diode Laser and the Microdermabrasion machine would function and operate effectively as represented, and never intended to be able to supply the requisite parts for repair or replacement or to make the repairs so as to make them functional and operational. 37. As described above, Con-Bio's misconduct was knowing, wilful, and in bad faith, and thus warrants the imposition of punitive damages. WHEREFORE, Farrell respectfully requests that this Court enter judgment against Con- Bio and award the following reliefi (a) damages in an amount to be proven at trial in excess of $35,000.00; (b) punitive damages; (c) prejudgment interest; (d) such other relief as this Court deems just and appropriate. COUNT III (Unfair Trade Practices - 73 P.S. Sec. 201-1 et seq.) 38. Farrell restates and realleges paragraphs 1 - 37 as if set forth in full. 39. At all times relevant to this Complaint, there existed in Pennsylvania the Unfair Trade Practices and Consumer Protection Law, 73 P.S. Sec. 201-1 et seq. 9 40. Con-Bio knowingly or recklessly gave Farrell the false impression that it would furnish and supply fully functional and operational equipment, namely the Diode Laser and the Microdermabrasion machine, to enable Farrell to professionally serve the needs of his patients. 41. Con-Bio continued to deceive Farrell by refusing or declining to make the Diode Laser and the Microdermabrasion machine fully functional and operational, notwithstanding the repeated requests of Farrell to do so. 42. Con-Bio knew or had reason to know that Farrell would rely to his detriment based upon Con-Bio's representations. 43. Based on the foregoing, Con-Bio engaged in fraudulent or deceptive conduct which created a likelihood of confusion and/or misunderstandirtg. 44. Con-Bio's fraudulent or deceptive conduct proximately caused Farrell to sustain damages. WHEREFORE, Farrell respectfully requests that this Court enter judgment against Con- Bio and award the following relief: (a) (b) (c) (d) (e) 45. forth in full. damages in an amount to be proven at trial in excess of $35,000.00; attorneys' fees and costs incurred in this matter; treble damages; prejudgment interest; such other relief as this Court deems just and appropriate. COUNT IV (Constructive Fraudl Pleading in the alternative, Farrell restates and realleges paragraphs 1 - 44 as if set 10 46. Con-Bio induced Farrell to enter into two purchase orders for the Diode Laser and the Microdermabrasion machine by representing to Farrell that Farrell was purchasing fully functional and operational equipment that could be used in the normal fashion in Farrell's practice. 47. Con-Bio's representations were later proved to be misrepresentations, which were material to the decision of Farrell to purchase the Diode Laser and the Microdermabrasion machine. 48. Con-Bio was the vendor of the Diode Laser and the Microdermabrasion machine, and Farrell had no reasonable means of investigating the truth of Con-Bio's misrepresentations. 49. Con-Bio's misrepresentations about the Diode Laser and the Microdermabrasion machine proved to be false and misleading as a result of the utter failure of the Diode Laser and the Microdermabrasion machine to operate as promised to Fam,ql and as reasonably expected by Farrell. 50. Con-Bio's misrepresentations about the Diode Laser and the Microdermabrasion machine were the result of negligence, gross mistake or arbitrary action of Con-Bio and its representatives. 51. As a result of Con-Bio's misrepresentations about the Diode Laser and the Microdermabrasion machine, Farrell has sustained financial harm and damages. 52. Farrell has performed all of the conditions precedent required of it. WHEREFORE, Farrell respectfully requests that this Court enter judgment against Con- Bio and award the following relief: (a) damages in an amount to be proven at trial in excess of $35,000.00; 11 (b) (c) 53. forth in full. 54. prejudgment interest; such other relief as this Court deems just and appropriate. COUNT VI (Negligent Misrepresentation) Pleading in the alternative, Farrell restates and realleges paragraphs 1 - 52 as if set Con-Bio induced Farrell to enter into two purchase orders for the Diode Laser and the Microdermabrasion machine by representing to Farrell that Farrell was purchasing fully functional and operational equipment that could be used in the normal fashion in Farrell's practice. 55. 56. the purchases of the Diode Laser and the Microdermabrasion machine. 57. Farrell justifiably relied upon Con-Bio's representations. 58. Farrell has sustained damages as a result of Con-.Bio's representations. Con-Bio knew or should have known that these :misrepresentations were false. Con-Bio's negligent misrepresentations were intended to induce Farrell to make 12 WHEREFORE, Farrell respectfully requests that this Court enter judgment against Con- Bio and award the following relief: (a) damages in an amount to be proven at trial in excess of $35,000.00; (b) prejudgment interest; (c) such other relief as this Court deems just and appropriate. POWELL, TRACHTMAN, LOGAN, CARRLE, BOW~ &~MBARDO, ~. Grainger B(~man I.D. # 15706 114 N. Second Street Harrisburg,, PA 17101 717-238-9300 Fax: 717-238-9325 Attorneys for Leo iD. Farrell, Plaintiff 13 IContinuum Biomedical A Medical Division of Continuum Electro-Optics, Inc. 6533 Sierra Lane, Dublin, CA 945681' 800/532-iD64 oJ' §10/820-3210 !:AX 510/556-2222 · I I Quotation II To ' Leo D. Farrell, M.D. 423 N. 21 st Street Camp Hill. PA 17011 Phone: 717,763.9383 Fax 9356 Quote #RB2002 Date: April 30, 1998 Estimated Delivery: 2~4 weeks Quote Expiration:Al3dl 3'1, 1~J98 Safes Re FOB Terms Rich Bankowski 8~:~.6~52737 Destination Best wi order; Net upon installation I I I TOTAL $ ITEM QT¥ UNITS -. DESCRIPTION .... ~ .... . 1 1 lot CB Diode/532 Diode Pumped Nd:YAG laser~[i'~'fUfb'J~ ~}:~ ' $55,000.00 to include 4 pair Laser Safety Eyewear leach Handpi~ce 400 micron 1 each Handpiece 800 micron 1 each Handpiece 1200 micron Installation and Inservice training One year warranty Training with Or. Vasily Special Discount {$25,000.00) Total $30,000.00 ! All quotations a~e subject tO CorttlnUurn Biomedical's Terms and Condition~ es listed on the reverse. [ UnleSs specifically st~ed, Fice does n~ include state sales ar,l/or customer use tax. ... By my signature below and payment of a deposit in the amount of $ I hereby accept this quotation and issue a valid purchase order for the. above stated items. Date EXHIBIT "A" Quotation To: Leo D. Farrell, M.D. 423 N. 21st Street Camp Hill, PA 17011 Phone 717-763-9383 ' Rich Bankowski 886/685-2737 I Origin ] Best Way [ 10~ Deposit wi order: Net .IX~ install~ion 1 1 lot Sparkle Peel Mlcrodermabrasion Systems $18,999.00 includes: Start up kit with aluminum oxide crystal disposible tips, autoclavable handpiece filter system Brochures, ad slick, & press release from Preston Marketing Less special discount form existing laser customer ($7099.00) Subtotal ($t t ,900.00) Shipping $195.00 Total $12,095.00 EXHIBIT "B" I. GENI:'!:AL: All Quotalions, Products aid Services i~nvi~k:d hv Scllcr, Conlinuum Biomcdi~l, (herein called CO'~IIO) arc furnished only on the toiles and condttkms ~' lied herein. Only such tcn~s aid conditions dtall opph. unless o~e~i~ cx~ly a~ (o in ~ling by All ordc~ for CONBIO's ~ucls. J~ ~ fo~h on ~y fi~nns aped ~mm an unqualifi~ ~ptan~ CONIll(.)-. ~otMion ~. a~ lubje~ Io ~llcn aCCCluancc ~1 CONBIO's o~cc in Dublin. CONUIO ~,-~cs Ibc right ~o reject ~y purchase ~ders. Any Quo~:dions full.ed by CONBIO ~all expirc days folh,wing Jhe date scl fo~h on thc s~cific UuoGiliou [o~, ~d may ~ mv~ed. ~un~ed olhc~se revised by CONBIO by ~flen n~icc p~or acccpl~co by CONBIO. 2 I'R.ICES: All prices published by CON~[O arc sul,iecl Io ch~e without onli~. ~o ~ For each I'~.lucl shall ~ CO~I~ p~ in effe~ ~ the dee CONIHO's a~p~ of the ~d~. ~ ~e gxclu~i~ of federal, stale and I~1 I~es ia force or enacted in thc Future. unless olh~i~ specified in w~ling. CONBIO d~ no( rc~, ~y or coll~l ~y t~ which may amused on the Buyer unless il shall ~alely slate such ~arge on the lace el the in.ce f~ such pr~ucts. ~ces for Pt~ucts arc q.o(~ F.O.B. Dc~Hnation. ~ ~ces do eel include license [~s. ins~ctico f~s. or any other f~s required for ~lion of the cqui~enl. .1. CONDI~ONS OF SA~: All ~es will ~uirc ~gued CONBIO ~ Ouyet issued pu~hM~ order accmn~ied by a 10% de~si~, units mhe~ agr~d to in ~ting. ~e sign~ p~rch~ order wilh ac:ompanying de~sil will ~ c~si~ a binding imfch~ a~r~menl ~l~n ~th p~ics. Buyer's m~ualified a~ep(~cc el ~ONOlO's ~olition [urnl ~GI ~stimle a signed pur~c ~cr. C~cella6on the ~ igre~cot will result in the F~eilurc of the ~it cxccpl where Buyher is unable lo qualify pumh~se financing. 4. L~SE O~rloNs: Qualified Buycn may elcct <~lain a CONBIO sl~sorcd lease. Only qualified guy.s will ~ accepled in a le~e ~g~m. Pl~sc c~lacl your salesper~n di~ctly for cunent ~d available progr~s. 5. PAYMENT: ~c price for each pr~uc( is based on payrolls in ac~rd~cc with Ihe following s~ule, unless ~hc~i~ authored in ~ling: a. 10% Dc~sil u~n placement b. Balan~ u~n inslalla(iun o~syatom unl~ ~i~ agreed Io in ~ting. Past due ~s shall ~ Subje~ m a se~ice ch~ge of 1.5% ~r month (18% ~r ~num) or slalc legal maximum ~rccnlaKc. In the event Buyer ~ails Io make ~om~ payment, CONB[O has the ~ghl Io caicel or delay delive~ oF Pr~ucls, ~ may re~sscsl Ihe ~ucts without ~i~. aider avail itself oF ~y available rcmedy. 6. DELIVERY AND SHIPMENT: ~live~ for ~ucls will ~ F.O.B. Deslination, unless ~h~s¢ need ~6ng. lu Ihe absence of s~cific shipping insl~clions. CONB[O will ship by Ibc meth~ it dcems most 7. TITLE AND RISK OF LOSS: Title lo the ~ucls · nll pass Io Buyer upon CONBIO's dclivc~ m the F.OB. ~in~. 8. PErChANCE: Dales indicated for deHve~ ~her ~rfo~ ~pm/enl CONBIO's ~ eslJmale. CONBIO shall n~ be liablc f~ ~y loss, d~ages ~nal(ies or in ~y other way because of ~y delay performance hereunder or failure 1o give notice of aiy <~lay d.¢ Io u~forcscc~ circumslanccs or lo causes ~yo.d its control ~d fo~ delays resulting from ~y such ~uscs. pe~onn~ce shall ~ cones~ndingly exten~d. A~ tt~d herein. "~o~ce' shill include. ~lh~l limilalion, fabdcalion, shipmem . delian. M~mbly. TERMS AND CONDITIONS installallco, testing and wan'amy repair or rcplaccmcnl~ as applicable. 9. S[-.CURJTY ARRANGEMENTS: CONBIO herchy rese~cS a porchue mor~cy security intercsi in .thc products delivemJ pursuant to ~is Aperient and tho proceeds thcreof, in the mnount or the pun:ha~ price. These intcmsLs will be satisfied when the Products are paid for in full. CONBIO may file or record this Agreement or Financing Statement(s), pursuant to the Uniform Commercial Code, to perfect, continue, release, assign, terminate aid/or amcnl ils security interest. Buyer authorlzcs CONBIO to nec, in st jurisdiction where' this authorization is to bc given effect, at Financing Slatement subscribed only by coNq3Io describing the Collatctal as the Prcducts sold herein. Off thc rcqucat of CONBIO, buycr will cx¢cule finaicing s~atcments and other instruments required to perfect CONBICYs security interest aid 1o pay the cosl of filing of recof~ng the same in ell public off~ccs, wherever CONBIO deems filing or rcco~ding to be nocessaty or desircbie. CONBIO or ils representatives may enter upon Buyer's premises (or Buyer's designee) at any rc,q.~able time to inspect Products. until Ihs Producls lire Nd in full. 10. SELLER'S REMEDIES: Upon 'qy dcfaull by Buyer of' any obligatiun under this Agrccmenl, CONBIO may declare all such obligations to he immcdlatdy due and payable, aid COI%'BIO shall have In addition Io aiy remedies specified herein, Ill of the rcmedk~ of n secured ~ aid/or Seller once' the Unif.onn Commerci,t Code et aiy mher applicable law. H. NON.ASSIGNMEHT: No right or interest in this contract shell be assigned or delegated by Buyer. Any atlcmpted assignment of delegation b.y Buyer shall he . wholly void and lo(ally ineffective f'n~ .d' tmq',oses. 12. INSTALLATION AND ACCEl ~,NCE: Final conrclination of the installation requ,,,-ments shall be made 0y Bttycr ann-CO(vB~Y no ts,er than one (I) month prior to tho scheduled date, u.iess o~herwise agreed to in wrilinli by CONBIO. Buyer shall be rcsponsib{e for havbtg the building, equipment, and ser~icc ready to receive the Product ca the cslimated de|ivemy date. Buyer r, ha{I prey{de nocesm'y h,bor and service to unload the Product from the transport vehicle. instal{atica shah be performed under the ~up~q~sion of' CONBIO's {nstallMion engineer. Upon completion of the instal{atica, CONnie's instal{alien engineer shldl demonstrate thc Product. Each {h-educe furnished by CONBIO she{[ be de.ned steepled by Buyer upon completien of the demonstrations showing that the Product perle(mn' according to pubiished specifications aid Buyer agrees lo execute CONBIO's acceptance letter upon ¢ompletitms of such demonstration. No(withstanding Ih¢ foregoing, use of Imy Producl by Buyer, its scents. cmp{oyees er liccnsee~, for aiy puq~oso aider dellve~y fl~ercof, without express written con~cnt of CONBIO. shah constitute ecccplancc of the Product by Buyer. {3. WARRANTY: CONB{O WS(TaitS each Product manufactured by it to be free from defects in materiel and wodcmanship for one (1) ycat from the date of instel{at{oa: {xovi~ed however that p~s rcp{~ed or rcpaircd under this wan'amy an: wa*ranted only for the remaining unc~r,osed po(lion of the od~nal wan'airy period app{ical.t¢ to the Product in which they ~e installed. Any I',oducts purchased from CONBIO which become defective during Ibis period WIll be repaired or rep{aced by CONBIO al thc Buyer's she or at cONrBIO's plant in Dublin. California. or at a CONBIO designated facility, at CON'BIO's option, neat being thc EXCLUSIVE REMEDY under this wm'~ty. Buyer shall promptly notify CONBIO of any claim. and CONBIO shell have the option to inspect end tesl each item claimed to be dcfeclive at Buyer's site or requesl the product to be shipped lo CONnie's plant or designated facility.. All freight charges within thc United Ststcs for w~rraity repair or rcplicemcm of t defective p~duct will b, homo by CONBIO. Thc risk of loss of the Pmduc shipped or delivered to ~C)NBICYs plait or design~ f~ility for rel~ir or replanenmcm will k homo by This Wm~lflly doc~ no~ extend to aiy Producl CONBIO ddcnnines were misused ator~ge, of handling; of that were modified, sc~ wKhou! CONnie's authorlzat|on, relocated in other than where it w~s initially insOdled, if. relocation was without CONBIO's ~pproval. original idcotificatico mm4cings .n the Product have rcm6vcd, altcrcd of ~f.sccd. CONBIO MAY,.ES WAR. RA%'TIES. EXPRESS OR UHPL,LED. AND WAP,,R~NTY OF MERCHANTA~fl,ITY OR FiT~ FOR A PAR'I~CULAR pURPOSE. EXCBPT EXPR.~SSLY SET FORTH IN WAP, J~NTY. This WmTaity iS no( ~slgnabln by Buyer. mdcss incidenl to e finaicbtg an, aigcment or o~hcr special Iraisactlon which CO{q~BIO approves in writing. 14. LUvBTATION OF LLM3~,ITY: IN NO EVF. JYT V/fi,L, CONBIO RE UABLE FOR A]q~Y' INDIR.~CT OR C'ONSEQL,~NTIAL DAMAGES AIUSINO OUT OF OR IN CONNECTION V/r['H TH~ USE OR. PER.FOR. MANC~ OF THE PRODUCT. I 5. RETURNS: Itt nn ease ate products to he rctumed without CONBIO's ~,.men permissien. 16. INDEMNIFIC.'~ 13ON: In Ih¢ event that aiy product · is m~nufactured a,d/or supplied acconiing to Buyer's drawings aid specifications. Buyer undeflldccs agrees that Buyer shall assume all responsibility for. and shall indemnify and hold CON~IO harmless from say liability resulting from a chugs of alleg~ion that such Product infringes or contribut-,s to the btfringcment c,l' aiy Lcttc~s Patent. I?. LOCAL REQUIREMENTS: Buycr shall be responsible Ibr obtaining all pgnnit! aid for macline nH other rcquiren:enls of any kind whatsoever relating lo slate and local codes, regulations and o~din~nccs. 18. APPLICABLE LAW: All contrscts for sale of Products by CONBIO shall I,c intc~prcted under and governed by thc ~aw of thc Stale of C~difomia. United Slates of America without regm'd to co~flicls of laws principles. 19. ENTIRE AGR. EEIv~NT: Thc terms aid conditions as set forth herein shall conslilutc thc entire Agrecmc,t be~vcen Buyer and CONBIO. 20. MIXCELLANEOUS: CONBIO shall not be bound by aiy terms in the Buyer's order which are inconsistent wilh thc tests herein set faflh. Acceptance by Buyer of these Itrm.., may bo made either by written acccptancc or by receipt by Buyer o( deliver7 of any the Products to bo delivered. This agreement supersedes any other aSrcemcnt between CONB{O and Buyer in connection with thc Products aid servicc~ hereof. I~ canno~ be modified, supplemented Bt rescinded excopl by w~ting, duly signed by the autho~zed signatories of both panics. If any part of' the latins aid oondltio~ stated herein ate held void or unenforceable, such peri will be trcetcd ns severable, leaving valid tho remainder of the lares and conditions notwithsfsnding thc part of paris found void or unenforceable, bt case of any breach or defauh by Buyer, CONBIO shall bc entitled to all ils costs enforce aiy or all of these Tem~a and Conditions, including reasonable altomeys' and experls°fccs and expenses aid all coufl costs. Continuum Biomedical J Medical Division of Continuum Electro-Optics. Inc. 6533 Sierra Lane, Dublin, CA 94568 800/532-1064 or 510/828-3210 VERIFICATION I, Leo D. Farrell, verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Leo D. Farrell CERTIFICATE oF SERVICE AND NOW, on April _~_, 2003, I hereby certify that I lmve served a true and correct copy of the within document upon each of the following; persons via first class U.S. Mail, certified, return receipt requested: Continuum Biomedical 3150 Central Expressway Santa Clara CA 95051 Continuum Electro-Optics, Inc. 3150 Central Expressway Santa Clara CA 95051 Continuum Laser 3150 Central Expressway Santa Clara CA 95051 By C. Grainger B~~an HB:38085v1 0000-31 IN THE COURT OF COMMON Ia'LEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEO D. FARRELL, V. Plaintiff CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendant Civil Action No. 02-1225 Civil Term AFFIDAVIT OF SERVICE BY PERSON OTHER THAN SHERIFF STATE OF CALIFORNIA COUNTY OF STANISLAUS: SS: Sworn to and subscribed before me a Notary Public this ~;- day ofD~e~.-~-mr~,.L_2002' I, Tammy Blevins, a competent adult, being duly sworn according to law, depose and say that I am an authorized process server under the laws of California, and that, on June 6, 2002, at 12:40 P.M. (Pacific Time), I personally handed and served at the offices of Continuum Electro-Optics, Inc. (at 3150 Central Expressway, Santa Clara, California 95051) a true copy of the Writ of Summons issued in the above-entitled action to the person who identified herself as being the authorized person or agent in charge of the offices of Continuum Electro-Optics, Inc., namely Carol Kinslow, said person being described as follows: 5'7" white female, approximately 160 pounds, grey brown hair, green eyes, approximately late 40's or early 50's. I swear that the facts above are true and correct, and that I am authorized to make this affidavit of service. ~ammy Blevins Notary Public (SEAL) 1294947 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEO D. FARRELL, V. Plaintiff CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendant Civil Action No. 02-1225 Civil Term AFFIDAVIT OF SERVICE BY PERSON OTHER THAN SHERIFF STATE OF CALIFORNIA SS: COUNTY OF STANISLAUS: I, Tammy Blevins, a competent adult, being duly sworn according to law, depose and say that I am an authorized process server under the laws of California, and that, on June 6, 2002, at 12:40 P.M. (Pacific Time), I personally handed and served at the offices of Continuum Laser (at 3150 Central Expressway, Santa Clara, California 95051) a true copy of the Writ of Summons issued in the above-entitled action to the person who identified herself as being the authorized person or agent in charge of the offices of Continuum Laser, namely Carol Kinsiow, said person being described as follows: 5'7" white female, approximately 160 pounds, grey brown hair, green eyes, approximately late 40's or early 50's. I swear that the facts above are true and correct, and that I am authorized to make this affidavit of service. Sworn to and subscribed before me a Notary Public this 5~day of D,=-zo~,_2002. Notary Public (SEAL) ~'~'/ Stanfslaus County IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEO D. FARRELL, V. Plaintiff CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendant Civil Ac. tion No. 02-1225 Civil Term AFFIDAVIT OF SERVICE BY PERSON OTHER THAN SHERIFF STATE OF CALIFORNIA SS: COUNTY OF STANISLAUS: I, Tammy Blevins, a competent adult, being duly sworn according to law, depose and say that I am an authorized process server under the laws of California, and that, on June 6, 2002, at 12:40 P.M. (Pacific Time), I personally handed and served at the offices of Continuum Biomedical (at 3150 Central Expressway, Santa Clara, California 95051) a true copy of the Writ of Summons issued in the above-entitled action to the person who identified herself as being the authorized person or agent in charge of the offices of Continuum Biomedical, namely Carol Kinslow, said person being described as follows: 5'7" white female, approximately 160 pounds, grey brown hair, green eyes, approximately late 40's or early 50's. I swear that the facts above are true and correct, and that I am authorized to make this affidavit ~ice. T~mmv Blevins Sworn to and subscribed before me a Notary Public this ~'tC'day of 0,~-~.~t6.zL, 2002. Notary Public (SEAL) imlsslon # 1294947 sz Stat~laus Court/ [ LEO D. FARRELL, Plaintiff Vo CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 02-1225 ENTRY OF APPEARANCE Please enter the appearance of Jack M. Stover, Esquire and Stephen Moniak, Esquire on behalf of Defendant, Hoya Photonics, Inc., as successor in interest to Cominuum Biomedical, a Medical Division of Continuum Electro-Optics, Inc. in the above-referenced matter. BUCHANAN INGERSOLL PROFESSIONAL CORPORATION Stover, t:sqmre I.D. #18051 Stephen Moniak, Esquire I.D. #80035 One South Market Square 213 Market Street- 3rd Floor Harrisburg, PA 17101 (717) 237-4800 DATE: May 28, 2003 Attorneys for Hoya Photonics, Inc., as successor in interest to Continuum Biomedical, a Medical Division of Continuum Electro-Optics, Inc. CERTIFICATE OF SERVICE I, Stephen Moniak, Esquire, certify that I am this day serving a copy of the foregoing Entry of Appearance upon the person indicated below by United States first class mail, postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure as follows: C. Grainger Bowman, Esquire Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C. 114 North Second Street Harrisburg, PA 17101 /,,~tet~n Moniak,/'E~q~e f DATE: May 28, 2003 LEO D. FARRELL, Plaintiff CONTINUUM BIOMEDICAL, A : MEDICAL DIVISION OF CONTINUUM : ELECTRO-OPTICS, INC., : : Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 02-1225 PRELIMINARY OBJECTIONS OF DEFENDANT HOYA PHOTONICS~ INC. AS SUCCESSOR IN INTEREST TO CONTINUUM BIOMEDICAL~ A MEDICAl~ DIVISION OF CONTINUUM ELECTRO-OPTICS~ INC. Defendant, Hoya Photonics, Inc., as successor in interest to Continuum Biomedical, a Medical Division of Continuum Electro-Optics, Inc. for purposes of the transactions alleged ("Hoya"), by its attorneys, Buchanan Ingersoll Professional Corporation, files the within Preliminary Objections as follows: BACKGROUND 1. On April 21, 2003, Plaintiff Leo D. Fan'ell filed a Complaint, a copy of which is attached hereto as Exhibit "A". 2. In his Complaint, Plaintiff alleges that he purchased certain laser equipment for use in his professional plastic surgery practice from Defendant pursuant to written contracts. 3. Plaintiff alleges that he experienced problems with the equipment in his practice and later sold at least some, if not all, of the equipment to another individual or entity. 12. A private cause of action under the UTPCPL is available only to purchasers or lessors of goods or services used primarily for personal, family or household purposes. 13. In his Complaint, Plaintiff alleges that he purchased the equipment "to professionally serve the needs of his patients," and not for personal, family or household purposes as required under the UTPCPL. Complaint, ¶ 40. 14. Plaintiff's claim under the UTPCPL, therefore, is legally insufficient and must be dismissed with prejudice. WHEREFORE, Defendant Hoya respectfully requests that this Court GRANT its Preliminary Objections and DISMISS Count III of Plaintiff Leo D. Farrell's Complaint with prejudice. III. 15. DEMURRER - LEGAL INSUFFICIENCY - COUNTS lit IV AND VI Pursuant to Pa. R. Civ. P. 1028(4), legal insufficiency of a pleading is appropriately raised by preliminary objection. 16. In his Complaint, Plaintiff alleges that he purchased certain laser equipment from Defendant pursuant to two written purchase orders which are attached as Exhibits "A" and "B" to the Complaint. 17. The written purchase orders contain terms and conditions which constitute a written contract between the parties governing their respective rights and responsibilities with regard to the equipment. 18. Plaintiffpurports to state a breach of contract claim (Count I) against Defendant as the result of alleged problems that he experienced with the equipment. 19. In his Complaint, Plaintiff seeks monetary damages in excess of $35,000 on account of the alleged breach. 20. In his Complaint, Plaintiff also purports to state a cause of action for fraud (Count II), constructive fraud (Count IV), and negligent misrepresentation (Count VI) based upon the same events and/or transactions giving rise to Plaintiff's breach of contract claim. 21. Plaintiff's tort claims against the Defendant must be dismissed under the "gist of the action" doctrine which precludes Plaintiff from re-casting ordinary breach of contract claims into tort claims. 22. The gist of this action sounds in contract and is govemed by the written terms and conditions accompanying the purchase orders as alleged by the Plaintiff. 23. The Plaintiff's tort claims essentially duplicate his breach of contract claim and therefore, should be dismissed with prejudice. WHEREFORE, Defendant Hoya respectfully requests that this Court GRANT its Preliminary Obi ections and DISMISS Counts II, IV, and VI of Plaintiff Leo D. Farrell's Complaint with prejudice. IV. DEMURRER - LEGAL INSUFFICIENCY - COUNT VI 24. Pursuant to Pa. R. Civ. P. 1028(4), legal insufficiency of a pleading is appropriately raised by preliminary objection. 25. In his Complaint, Plaintiff purports to state a claim for negligent misrepresentation (Count VI) against Defendant as the result of alleged problems that he experienced with the equipment. 26. As relief, Plaintiff requests solely economic damages in an amount in excess of $35,000. 4 27. Where a plaintiff asserts negligent misrepresentation and seeks only damages for economic loss, the defendant is entitled to judgment as a matter of law. David Pflumm Paving & Excavating, Inc. v. Foundation Services Co., 816 A.2d 1164 (Pa. Super. 2003). 28. Because Plaintiff seeks solely economic damages as relief in Count VI (Negligent Misrepresentation) of his Complaint, this claim fails to state a claim as a matter of law, and must be dismissed with prejudice. WHEREFORE, Defendant Hoya respectfully requests that this Court GRANT its Preliminary Obi ections and DISMISS Count VI of Plaintiff Leo D. Farrell's Complaint with prejudice. DATE: May 28, 2003 BUCHANAN INGERSOLL PROFESSIONAL CORPORATION ~16~k M. Stover, Esquire / I.D. #18051 Stephen Moniak, Esquire I.D. #80035 One South Market Square 213 Market Street - 3rd Floor Harrisburg, PA 17101 (717) 237-4800 Attomeys for Hoya Photonics, Inc. as successor in interest to Continuum Biomedical, a Medical Division of Continuum Electro-Optics, Inc. ~NNOO POWELL, T1L%CHTM..~N, LOGAN, CAP, RLE BOWMAN & LOMBA.RDO, P.C. C. Or,roger Bowman Pa. 1. D. No. 15706 1 14 Norflt Second Harnibu~g, PA 17101 717-238-9300 FAX: 717-23~-9~25 AIIorncy-~ for Leo D Fa~cll IN THE COURT OF COMMON FLEAS Of' CUIVlBERLAND COUNTY, PENNSY'LVANIA LEO D. FARRELL, Plaintiff CONTINUUM BIONfEDICAL, A IVI'EDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendan~ Civil Action No. 02-1225 Civil Term NOTI~C.E TO DEFEND. YOU HAVE BEEN SUED IN COURT. Ir'you wtsh To defend against the claims set in :he following pages, you must rake action wi;bm tw~my (20) days after thrs complmnr and nodce are served by emering a wriuen appearance personally, or by an auorney, and fihng Lu writing with the court your defenses or objections to the clmms ~et forth agams~ you. You ar= warned tha~ if you fail ~o do so, the case may proceed without you and a judgrnent may be emer~ against you by the court without fur[her notice for any money claimed m the complmm or for any clmm or relief requested by th= defendant. You may lose money or property or other rights important to yon. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. ~ YOU DONOT HAVE OP, KNOW A LAVffgER. THEN YOU SHOULD GO TO OR TELEPHONE TI-IE OFFICE SET FOP. TH BELOW TO FiND OUT V, rHERE YOU CAN GET LEGAl- H'ELP LAW'YER REFEP. R~-L SERVICE Cumberland County Bar Association 2 Libc~y Avenue Carli~t~ PA 17013 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demanda~ que se presen~ mas 'adelante en las siguientes paginas, debe ~oma.r acciou de. ntro de los proximos re, me (20) dias despues de la nout~ca, cion de esm Demanda y Aviso rMicando per-~onalmen~e o pot medio de an abogado una comparecencia escrita y radicando en la Cone pot escrko sus defensa~ de, y objecciones a, l~s demandas presentadas aqui em contr~ suya. Se le advier~e de que si usted falla de ~omar accion como se describe anteriormen~e, el caso p~ede proceder sin ust,~d y an fallo por cualqmer sum~ de dinero reclamada en la dcn'nanda o cualquier otra r¢clamacion o remedio solicimdo pot =1 demanda.u~e puede set dictado en,contra suya pot la Cone sin mas av~so M~cional. Us'ted pued= perder dinero o pzop~edad u otros derechos importames para ttsted. USTED DF_ME LLEV.~K ESTE DOCUMENT0 A SU ABOG-~J30 IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PIOEDE PAGARLE A LFNO, LLAME 0 VAYA A LA SIGUIENTE 0FICINA PAIkt AVER.IGUAK DON'DE PUEDE ENCONTKAR ASISTENCIA LEG.~L. LAWYER KEFER_R-~L SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle PA 17013 }'0WELL, TRACHTM_~N, LOGAN, CAI:LKLE, BOWM.~ & LOMBAi:LDO, P.C. C Grainger ]B~,ma.n , AttOrneys for Leo D. Fa~Tell, Plaintiff POWELL. TP..ACHTMAN, LOGAN, CA.RKI_E BOWMAN & LOMBARDO, P.C. C. Gramger Bowman Pa 1. D No 15706 114 North Second Su~ee~ Hamsbm'g. PA 1710 ! 717-238-93 O0 FAX: 717-238-9325 Attorneys for Leo D. Farrell IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEO D. FARRELL, V. Plaintiff CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendant Civil Action No. 02-1225 Civil Term COMPLAINT COMES NOW PlainuffLEO D. FAR_R.ELL, by its attorneys C. Grainger Bowman and POWELL, TRACHTMAN, LOGAN, CAR.RLE, BOWMAN & LOMBARDO, P.C., complaining of CONTINLrUM BIOMEDICAL, -~. MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., and alleges as follows: The Parties. PlainuffLEO D. FA.KKELL ("Fan:ell") xs an adult individual with a principal place of business a~ Suite 204, 2025 Technology Parkway, Mecha~ncsburg, Permsylvama 17050. Fan:ell operates the professional plasuc surgery practice ofFarrell Plasnc Surgery and Laser CenTer at the aforesaid address 2. Defendant CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINLrU'M ELECTRO-OPTICS, INC. ("Con-Bio") is a corporation with a principal place of business at 3150 Central Expressway, Santa Clara CA. 95051. Con-Bio is engaged in the business of designing, manufactUnng and selling advanced medical equipment for profi:. Con- Bio engages in this business w~thm the Commonwealth of Pennsylvania and or. her locations throughout the U~zited States. 3. Tiffs Court has jurisdiction over tiffs mar[er pursuant to 42 Pa.C.$.A. Section 5301 because Con-Bio card. es on a continuous and systematic pact of its general business wltban this Commonwealth. 4. Fun'ell was an on-going customer of Con-Bio. Con-Bio pursued Farrell to induce Farrell to purchase the Diode Laser referred To in para~aph 7 below, and to purchase the Microdennabraston machine referred To in paragraph 15 below. 5. The Court of Common Pleas of Cumberland County is the appropriate venue for this matter, because the causes of action set forth in this Complaint arose in Cumberland Cotmry, the transactions out of which the cause of action azose took place in Cumberland County, and Farrell's principal place of business is located m Cumberland County Nature of,.t~he Action, 6 Farrell brings this action thc breach of contract, fraud, violation of the Unfair Trade Practices and Consumer Protection Law, construcuve fraud, m~d negligent misrepresentanon agmnst Con-B~o as a result of Con-Bio's sale of equlpmen: to Farrel] on written pltrchase orders, which sale ~esulted in flxe delivery to Farrell of equipment which had little value, that xs to say, value which was not equivalent to the purchase price, all of which is more specifically set forth below. The sale and t~nrchase was ~..ntered into based upon representations of Con-Bio to Fun'ell whxch weft: false, misleading and which Con-Bio had no '2 intention of fulf;.lling. C~BN Diode/S32 Die4e. pt~mped Nd: YAG LaseA' 7. Under da~e of^pri130, 1998 and Ouot~ #RB2002, Con-Bio sold Fan-ell a CBN Diode/532 Diode Pumped Nd: YAG Laser ("D,ode Laser") for use in Farrell's practme with numerous representaT:ons The represemauons were unu-ue and fraudulent, bat were relied upon by Farrell as Farrell entered into the agrcemen~- for the purchase m-~d sale of the Diode Laser. The writte-n purchase order Quote #P,.B2002 is altacned hereto as Exhibit "A" and incorporated here~n by reference g. Con-Bio's repr~sentauves repre.,~ted that the Diode Laser had solid state mechamcs and that Fa.well did no~ need a service contract. 9. A~ abou~ one year following purchase, Farrel! experienced problems wRh the Dmd¢ Laser in d~e following pm'ticulars. (,a) Contrary to reasonable expeetauons, Fan'ell needed ¢o re-calibrate the Diode Laser every ume ~e equipment was used. (b) "High power" re,dings caused problems tha~ Con-Bm representatives did not (c) solve. Farrell sougb, t a servlc= conwa~t for t~e Diod~ Laser from Con-Bio, bu~ on Augusz 3, 2000, the Con-Bio representatives advised tha~ Con-Bio would not s~ll Fan'ell a s~vvice contract for th~ Diode Laser Instead, Con-Bio advised that a service represemanw weald be priced ~t $250 p~ hour plus tlxe cos~ of the ~cknician travel to provide ConoB~o repaic. On or about September 6, 2000, service ~echmclm'~ Ryan Prendergasl reFlaced a board gow°miflg the eqmpment's solNgare (d) which resulted in getting the Diode Laser operational for ~ short ume. The repa;.r cost was $3567.36. Wifl~[n two weeks of the first r~a~r, ~e s~e "h~gh reading" problem recun'ed, and F~ell was a~ah~ forced to d~scontinue use of fi~e Diode Laser. The Diode Lascr would conunuously show "higl: pcwsr" readings, m~ng professionally d~gerous for Fm'~'ell to a~imster ~eaunent on ~s pauents w~tl~ fl~e Diode L~er. Th~efare, F~ell discor, t~nued use of ~he Diode Las~. F~ell was advised by Con-Bio se~ce m~ager Steve Komer float the,"~ power" reading problem was in fl~e diod,:, who ~aher advised ~ha~ Con-Bxo could nox obtain ~he diode, because replaC~nent p~s were not available. On Novemb~ 20, 2000, F~ell w~ ~vised by Cl~s Prenderg~t, Cou-Bio, ~at Can-Bio, a~ a comply, wm ~w~e that flaere were problems wlfl~ fl~e D~ode L~er, ~md ~at he was aw~e of methods of repair w~ would m~e xhe Diode Ea~er ~ncuon ~xd marketable fro' re-sale to ~oxher. Specifically, Chris Prend~g~ advised ~t he personally knew how ~o re-m~e the laser fm~euoual ~d that he could facilitate sale to ~other phys~ci~ out of 10. Prior to November 20, 2000, Fmrell was not satisfied that on a~y g:v~ day the D~ode Laser would function m~d operate sa'ely and properly After November 20, 2000, Farrell had no intention ~o us~, and d~d not use the D~ode Laser in h~s professmnal pracuce. 1.1 Accordingly, Fun'ell did s;ll the D~od~ Laser ~o another at a discount, wkh the coordination of Chris Prendergas~. Farrell's re,..ale of the Diode Laser was not Fan-eli's intent at the time of his purchase, but iT was the only a!~enlat~ve le~ To Fa~rell. 12 Tlu'oughout Far~'ell's ownership o [ ~he Diode Las~, Con-Bto f~led ~o co~ec~ ~h~ recu~ng problems ~d f~led lo m~e av~lable rcpluc~cn] d~od~s ~o m~c the Diode L~' mee~ i~ intended p~os¢ for FmTcll. 13. Upon info~t~on md belief, Fa~ell alleges ~a~ Con-Bio nev~ had ~e capability or the capacity or lh~ lmowledge or the in~mon to m~e the Diode Laser operate on ~ continuous bas~s for ~e express p~ose for which ~ was sold by Con-Bio ~d p~chased by F~ell. ~d ~a~ ~e Diode Las~ wm not of merchantable quali~y. Upon info.etlon ~d belief, F~cll alleges ~at Con-B~o ~ew ~l the Diode Las~ would not operae on a ~onUnuous basis for the express p~ose for wMch it was sold by Coil-Bio a~d p~ch~ed by F~ell, ~d ~hat the Diode L~er ~as no; of merch~table quahw. 14. F~ell was damaged in tlsa~ ~e Diode Laser was of linle value to F~ell, m~d F~ell 1o~ h~s mves~I ~d professional time as a resuk ofre]~ng on ~he repres~mdons of the repres~za:ives of Con-Bio and mMang the p~ch~e of the Diode Laser F~er, unable to use ~e Dtode Las~ wi~ ~e ~owled~e of ~ese problems, for Y~ell would not subject his pass.ts to the fi/ks of the use of~ts machine for people under his professional cae. Spark]e Peel Micro~rma~rasi~n M~chin! 15. Und~ date of ]m~ua~ 17.2000 mad Quote ~2~29, Con-B~o sold F~all Sp~kle Peel Microde~abrasmn Machine ("M~crode~abraston roach.ne ) for use m pr~tice wi~h nmn~ous r~resenta~ions Thc reprcs~ta:io~ were undue ~d fraudulent, but were relied upon by F~ell as Fmvell ~uered imo the a~eemen~ for ~e purchase ~d sale of ~he M~crode~raston ma~ne The ~rt~en purcl~a~e order Quote ~2129 ts a~tached hereto Exhibit "B" and incorporated herein by reference. ! 6. Con-Bio's representatives represented that the Microdcnnabrasion machine worked well to mildly buff the skin surface in tko u-eatment of skm disord¢rs. 17. At about t~o months follo,~,ing purchase, Fan'ell experienced problems ,,vlth the M~crodermabrasion machme, m ~hat patients complained of unusual rough and bummg sensations d~ing r. rcarauents with ~he M~croden-aabrasion maclune, and the lack of crystal flow. To l:arrell and his patients, this ,,vas m~urely anacceptable. 18 Con-Bio failed to correct ~he recumng problems w~th the Microdermabras~on machine and failed to make acceptable repairs to malco the M~crodermabramon. machine me¢~ im mtended purpose. 19. Upon information and belief, Far~ell alleges that Con-Bio never had the capability or ~he capacit), or the lcnowl~dge or the inten~iol, ~o make the Microdermsbrasion rn~hine operate on a conunuous basis for the axpress purpose for wl9ch it was sold by Con-Bio and purchased by Farrell, mad that the Microdermab:'asion machme was not of merchantable quality. Upon reformation and beheer Fmc'ell aliases that Con-Bio knew tha~ the Mlcroderm~brasion m~chme would no~ operat¢ on a continuous basis ibr the expr~.ss purpose for which i~ was sold by Con-B~o and purchased by Farr¢ll, and that the Mlcrodermabrasion machine was not of merchantable quahty. 20. When Farr¢ll brought tl~e ~bov~=referenced problems to the at~c~'ntion of Con-Bio Pres,dent/CEO Lee Flowers, Flowers did not deny d~e problcms, but instead offered to sell FarrelI another laser machine at a dtscount, v, it]~ a certain value for the Microde~zaabrasion machine as a credit toward rA~e purchase of the ~e~ machine. This business proposal was not acceptable to Fa'tell, because it deprived him or'the value of the n~chine which he had purchased fox' a particular purpose, and would result m farther payments to Con-Bio in wl'.om Farrell was losmg confidm~ce. 21 Farrell was damaged m that the Microdcrmabras~on machme was of no value to Fan-ell, and Faa'ell lost his inve~ment and professional time as a result of relying on the represemg~ons of the representatives of Con-B ~o and making the purchase of the valueless M~crodermabrasion machme. Further, Farrell would not subject his patients ~o the risks of the use of this machine for people under his professional care. COUNT I fBreach of Contrac~) 22. Farrell restates a~d realleges paragraphs 1 - 20 as if set forth iff fall. 23 Con-Bio's conduct constitute~ a breach of the corm:actual undertaking of Con-Bio to furnish and supply a functional and operat~o~al Diode Laser and Microdemaabras~on machme, that is, machmes that are merchantable a~d withou~ defect 24. On the contrary, however', Con-Bio famished and suppl~ed a defecnve Diode Lasez and Microdermabrasion machine, not-,vuhstanding Fan'elFs payment in good faith of the full purchase pace set forth in the Exhibits "A" and "B" to th~s Complan. at. 25. Con-Bio has breached a valid a~d enforceable contract, by failing and refusing to funzish and supply the equipment which would operate as represented to Farrell by Con-B~o 26. Con-Bio has breached the imphed covenant of good faith and fair deahng. 27. Farrell has performed all conditions precedent required of it ~o ~he brmgmg of this Complamt. 2~ As a proximate result of Con-Bio's breach of contract, Faa'ell has sustained 7 dmnages. WHEREFOKE, Farrell respe, ctful[y requests that ti'us Cour~ ent~ judgment ag~unst Cot.- Bio and award the following r~hef: (a) damages in m'~ amoua~t to be prov~ at mai in excess of $35,000.00; (b) prejud~am~ interest; (c) such other relief as this Court deems just and appropriate. COUNT II (Fraud) 29. Farrell restates and realleges paragraphs 1 - 28 as if set folxh in full. 30. Con-B~o induced Farrell to enteL' Into two purchas~ orders for the Diode Laser and the lVhc~'odermabrasion machine by represen:ing to Farr~ll that Farrell was purchasing fully functional and operational equlpmm~ chat could be used in the normal fashion ~n Farrell's pracuc~. 31. Con-B~o made rc-Tresentations to Farrell that the Diode Laser and the Microde~Tnabramon machine would be funcfimtal mad operauonal, and Con-B~o ta~ew tha~ tl~ese r~resenmtions were false, or had reason to ~.,w they were false, or recklessly made these represemauons without knowing whether they were true or f~lse. 32, Con-Bio made these representauo~s w~th the intent to defraud. 33. Akernativ~ly, Con-Bio had inte~%tionally concealed or suppressed a material fact and/or mechmn~cal defecz in the r~presentauon-- ~t made ~o Farrell regarding the Diode Laser and thc IV[icroden'naDras~on macht,%e, which Con-Bio ~v~s under a duty to disclos~ to Farr¢ll, ra~her than to allow Farrell to rely upon Con-B~o's representations to F,u'rell's ctecnment. 34. Alternatively, Con-Bio made false prommes as to matters material to che decimon of Fen'ell to purchase the Diode Laser mad the Microdcmsabrasion machine, which were made w~tl~ the intent to defraud Fen'ell. 35. Farrell was unawm'e of the falslly oi' the represen:ations or of Con-B/o's concealments o~' false promises when the}' oecd,fred, m~d Farrell acted m j L~s:ifia'olc reliance of the representations, concealments or false pro~-nises ~o l;arrell's financial deu'lment, that is to say, Fan-ell suffered a:u~al damages, mad Fen'ell was pat at risk of losing his good reputation. 36. Con-Bio never in~ended tiaa: d~e Diode Laser and the M~crodermabraslon machine would function and oper~xe effecuvely as represented, and never intended ~o be able to sapply the requisite parts fo~' repatr or replacement or to n~a.ke the repairs so as ~o make them functional and operational. 37. As described above, Con-Bio's tniscotsduct was laxowing, wilful, and in bad faith, and thus warrants the xmpos~uon of pu~itive d~aaages. WHEREFORE, Farrell respectfully requests that thxs Coups enter judgment against Con- Bio and award the following rebel: (a) damages in an amount to be proven at trial in excess of $35,000.00; (b) punitive damages; (c) prejudgmen~ it~terest; (d) such other relief as this Cou.~ deeaxss just and appropriate. COUN i afair rede Practices- 73 P.S~ 3~. Fan-ell restates and realleges paragraphs 1 - 37 as if se; fo~'tl~ tn full. 39 At all times relevant to this Co~ ~plmnt, there existed in ?et~sylvania the U~falr Trade Pracuccs and Consumer ?rotecuon Law. ']3 P.S. Sec. 201-1 e~ seq. 40. Con-Bio knowingly or recklessly gave Yarrell the false impression that it would fun'fish and SUpl:ly fully functional and operatimlal equipment, nanaely the Diode Laser mid the Mlcrodermabrasion machine, to enable Farrell t° professionally serve the needs of his patients. 41. Con-Bio conunucd to deceive Fm'rel~ by refusing or dechnmg to make the Diode Laser and the Microdenr~abras,on machine fully functional and operauonal, notwithstanding the repeated requests of Farrell to do so. 42. Con-Bio -!,mew or llad reason to talow that Fro-tell would rely to his demment based upon Con-Bio's representations. 43. Based on the foregoing, Con-Bio engaged in fraudulent or deceptive conduct which crea~ed a likelihood of confusion m~d/or m~sunderstandmg. 44. Con-Blo's fraudulent or decepuve conduct proximately caused Fan'ell to sustain damages. WHEREFORE, Farrell respectfully requests that this Court enter, judgment against Con- Bio and award the following relief: (d) (e) 45 forth tn full. damages in an amount to be proven at trial in excess of $35,000.00; attorneys' fees mid costs incuiT~:d in tMs mauer, treble damages; prejudgment interest; such o~er rehef as tl6s Cou~ d~as just md appropriate. CO~N~'o,nstrucIive Fraudl Plea~ng m the al~ema:lve, Far~ ell restates m~d realleges pm-a~aphs 1 - 46 ~ xf set l0 46. Con-Bio induced Fa'roll to enm into two purchase orders for the Diode Laser and the Microderrrmbrasxon machine by representing to Farrell tlmt Fen'eli was purchashxg fully functional m~d operational eqmpment that could be used in me non, al fashion in Farrell's practice. 47. Con-Bio's representations were tater proved ~o be misrepresentations, winch were mmenal ~a the decision of l::arrell to purchase tl,e Diode Laser' and thc M~crodermabrasion machine. 48 ComBio w~s the vcudor of thc I)iodc Laser and lhe Microdcrmabrasion machine, and Farrell had no reasonable means of investigating the truth of Con-Bio's misrepresentations. 49. Con-Bio's nUsrepresenmuons ahou~ the Diode Laser and ~he Microda,-mabrasion mschine proved to be f~se and misleading as s result of the uuer failva'= of the Diode L~ser and the Microdermabrasmn machine m operate as promised to Fatrell and as reasqnably expected b), Farr¢ll. 50 Con-Bio's misrepresentations about the Diode Laser and [l~e Microdermabrasmn machine were ~ result of negligence, ~oss m,stak.¢ or arbitrary action of Con-Bio r~pres~nlat~ves. $1 As a re~k of Con-B~o's misrep~-esem~uons abou~ ~he Diode Laser and ~he lVIicrodermz, brasion mackine, Fro'roll has susmiaed financial harm ~nd damages. 52. Farrell has perfon:ned all of r.he condiuons pr¢cedem[ reqmred of n WHEREFORE, Yarrell respectfully reqaests that ~his Court enter]udgmem agams~ Con- Bio and award the following rebel. (~) damages in an amount to be p~-oven at mzl in excess of $35,0(30.00, (c) fo~h in prejud_m'nem interest; such other relief as this Couts deems just ~md appropriate. COUNT VI (Negligent Mis.represenrstior~l , Pleading in the aherrmuve, Fun'ell restates and realleges p,-u-agraphs 1 - 52 as if set Con-Bio induced Farrell to enter into two purchase orders for thc D~ode Laser and the Micrcdermabrasion machine by repres=nting to Farrell that Fan'ell was pt~chasing fully functional and operational equipmm'tt that coukt be used in the normal fashion in Farrell's practice. 55. 56. Con-Bio knew or should have kl~own that these misrc-presentaUons were false Con-B~o's negligeut misrepresemauons we. re intended to induce Fa.rrell to make the purchases of the Diode Laser and the Microdermabrasion machine. 57 Farrell jttstifla, biy relied upon Con-Bio's representauons. 58. Fan:ell has sustained damages ss a result of Con-Bio's representsuons. 12 WHEREFORE, Fan'ell respectfully requests that this Court enter juagment against Con- mad awm'd the lbllowmg relief: (a) dmnages ~n an amount to be provm~ au wial in excess of $35,000.00; (.c) prejudgment inzeresr; such oth:r relief as this Coarr d-.ems lUSt and appropriate. 1 l~ N. S~cond S~r~ H~sb~g, PA 17101 717-23S-9300 F~: 717-23S-9325 Attorneys for Leo D. Farrell, Plaintiff 13 Continuum Biomedical IA Me ........ c~ubh-' ~A 945~81 Quotation To: Leo D. Farrell, M.D. J ~ Date: April 30, 1998/ 423 N 21s[ Street ~ j Estimated Delivery: 2-4 weeks J Camp I~dl. PA 17011 / L Quote Expiration:April 31.1~$8 J Phone: 717.763.9383 Fax 9356 CB D~o~e1532 D~o~te Pumped Nci'YAG to IRCluee 4 pair [.user Safety leac~ ua~pt~e eo0 1 eacfl H~n~P, ece 800 m~croR ins[altaho~ aha inset]ce ira~n,ng O~e )e~r warraaty $55.000.00 [j25.o00 By my signature below and paymen[ of a deposit in the amount of I he.by accept t~is quotatio~ a~d [5s~e a valid purchase order for the above stated items. EXHIBIT "A" Quotation To: Leo D. Farrell, M.D. 423 N 21st SVeet Camp Hill, PA 1701 1 Phone 717-763-9383 lot sparkle P~l Mlcrodermabra=lon System I~ includes: Start up Kit v~l~ aluminum oxide crystal disposible tips, au~oclaval31e hanc~piece filter sy51em Brochures, aa slick, & press release from Preston Marl<efing $18,998.00 discount form exl~hng laser cu~omer ($7099.00) Sul~c~al ($1 ~ ,900.00) Stopping Total $12,095.0 _~- ·., ~'~ '~ - ~ , . .. ~' , , .: "oc _- ~o' C~naum EXHIBIT "B" GENt.'-t'.^L: ^11 Quotations. PTOdUC~S and Scrvlccs vi(lcd hv Sdlcr. Cmuinuum Biomc(lic~l. (h~cin ~ed C'O"l!lIO) nrc £umished only on the terms and ,ditinoss' ~lcd heroin. Only such-Icrms and conditions II a~Ptv unless ol~lcrwJsc cxpros~iy. ·~'ccd to ia fi,g bi' r'ONB[O. ~.ll orders for COHBIO's products, ii' ~t forth o~ ns ap.~,t from afl unqualifi~ acccp:aflcc of Hlll(.I '. (~olntion fora. arc auhjccl IO wriltCn rp~flc( nl CONI310's office in Dublin, CMifomia. NUIO t,-~e~vcs ntt riuh~ Io rcjc¢l ~ny purchuc urders. ~ Oue,,dons furnished by eCHOIC shall expire ~0 .~ folh-v~flg .Iht date act forth on Ibc tudion lon'n, ~ct may bc r~vokcd0 nmcndcd or :~bc revised by CONBIO by v,,dtlcn .notice prior to :prance by cONBIO. i,ILIC'F.S: All prices published by CONI310 arc tccl lo chloe without I~oticc. Thc I~cc for each ,htct shall be COl,,[~lO'a pdec in e~Tcct on the dale HOlO's acocpta:mo of tho ordcc, p~ecs irc exclusive edcr~L Slate and local lOXeS in force or enactcd in ;tn. unless otherwlsc spcCiOCd in writinG. CONBIO s not rcpon, pay or collect any tasc which may be ,os.ed on thc nuyef unless i: shall ~paratcly slzle !~ chargc on Iht facc or Iht invoice for such prOdUCll, cs f-or products arc q.oled F.O.B. DcSthtalinn. did prices do icl include license fees. inspection ~. or any other fccs rcquircd for operation of the ipmcnt. COnDITiOnS OF S^L.E: ^Il sa~cs will require ~c,t COHI310 or Duycr issued purchuc .order. u(nptnicd by" I0% dcposK, unlcasmhcnvisc i, wt~tinll. Thc signed p~hs.s~ ord;'r' wilh .mq~anyint'- deposal will be considered n hindlng ',:ha.~ a~r~cmcnl bclwocn boll~ panics. 13uyer's u.li~ed acceptance of .coHOIO's (~jolalion funn 1 constinJtC a sJl~ncd porchasc order. Cancellation of · ' thc fofl'eilurc of thc purcha.~ agreement wdi rgsult tn qualify fo,' osit except where Buyher ii unnble Io :h~sc ('mancin.~. LEAS~ OPTIONS: Oualificd Buyers moy clccl Io ~i, a CONOIO sponsored Icssc. Only ~a's will tx: accepted in a Icrc p~gr~m, pit,sc I~ct your salesperson dircctly foe curt'cai Icrc available pro,ram s. pAYMENT: Thc price for each prOduct is based on ntcnls in accordance with Iht followinl~ schcduic. :ss otherwise authOd"'d in wHlln~: a. 10% Deposit upon placement ol'~dcr. b. flal~mc~ upon inslaltatiun of system unless othorwisc agreed to in writing. ~ast duc alliances shall bc ~ubjcct to a service chugc 1.5% Pop monlh (l~'/* per annum) or state dmum percentagc- In thc cron( Buyer falls I, make ,mpa poymcnt, CONBIO has Iht light lO cancel or ay delivery of pruducls, or may repOSsess rite · duels without mice, an~/or ivail itself of any dtable remedy. 3ELIVERY AND SHIPMENT: Dcllvcry For prOduclS I t~ F.O.B. Dcstlnalion, unless olhc~v~sc nmcd in ting. In dK absence of' specific shipping inslructions, 1NOLO will ship by Iht mclhOd it dccmS most TITLF. AND RISK OF LOSS: Title Io thc products dl pass IO Buyer upon cONBIO*s dclivcry to ).B. point. pER. FOP. M. ANCE: Dates indicaled for ~er performance represent CONoIO's be~ estimate. )N010 shall not bc liable for any loss, df. maces or .~hles or itt any other wly because or ~.ny delay in .fonnance hereunder or failure Io five notice of' any yoml its control I~nd foe deleys r~sultinl from Lq), such us~s, pefl'omtancc shall be correspondingly catcndcd. ~ t~scd hcrein, '1~rt'°l~nancc° shall include, w~lhOOl '~ilation. f~brlcalion, shipment . delivery, luscmbly. FER1VIS AND CONDITIONS inslaltaliart, tcstlnl ~d w~,~'l.n~ rcpalr or replay, mcat. as ~pplic~ble. 9. sECUR, r['Y AE.RANOEIv~NTS: CONBIO h~cby reserves · purcbs, sc mo~ey security interest in .thc produc~s delivc~l pur~lt to this A~,~::mont and I~ proceeds tbes~of, in thc amounl o{' the purdu~ pdcc, These intcr~StS will ~: satls6c~ v/hen thc Producu in: paid for in full. CON'BIO may ~1c m r~cord this AiIrecmcn( or Financing Stalcm~nt(s), pursuant to thc Uniform Commerdnl Code, to pcrfcct, cordinuc, rclca, sc, assil~n, icmlnale a~d/or amcnt Its accufit/ interest. ~uycr authorizes CONBIO lo I~lc. in ' julisdicllon wher~ ' this au~horiullon is In be given clTcct, s Financing 'Slaternent subserlbcd only by COI'fBIO dcscrlbinl thc Collalcrll as thc products sold hordn. On thc rcqu~( CON13[O, bu,'er v4[I execute financing alatcmcnls and other insn'umcms rCClUim:l to perfect cOhrDIO's s~curhy internal nod la pey thc cost of filiug or tccorC~n~ thc s~mc in AIl public of~o~s, whertvcr CC)NBIO deems filths or recording lo bc no¢cssiJ'y ~r deslrlblc. CONI310 ur ils representatives may c. nt~r upon Buyer's premises (ar Buycr's dcsiyneC) al Any ~&ble tlmc lo inspect products, unlit thc products uc pud in furl. I0. SELLER'S R. EM~I:)[ES: Upon any default by l~uycr nf any ohligalion under this ^t~rccmCnt, CoN'BIO declare all such obligations to be immcdi"~dy due and peyablc, and COI'~IO sl'~l[ have In sddltlo~ lo remedies si)¢cifi~ bosun, all of thc Kmcdi~l of' ~ ~ ~,~. .~tt~ ~. the Unifon~ Commemid Code or say other applic~blo law. I't. NON.ASsIGNMENT: No light or interest in this contract shall be usiGncd oc dclcgstcd by Buyer. Any allcmpt~ assiGnmcol or ddcg~tion h.y Buyer shall bc wholly void and totally inefTectivc (au .," imqIOses. 12, INSTALLATION AND ACCEl ANCE: Find coordinntio~ of the insldlntioa tcqu.,-mcnU d~ll be nqdC 0y Bttya kan' CorcBIO' no u, tcr thin CBc month prior to the scheduled daB'..nlcss olhctwlse agreed Io in writing by CONBIO. Buyer shall be responsible for having thc buildinG, equipment, and s¢~Cc ready to r~cciVC thc Product on the cstimzt~ delivery d Jr,'. Buyer shaft pmvld~ nook. ashY ~bor and service to untOK[ thc prod, uC.t from the: iranSpoct vehicle. Installation shall be pcsfm'mcd under thc super9isi°n of cONBIO's instaOstioa engineer. Upon complc'lion of thc instill·lion. CONBIO's installation engineer sh'11 dcmonslrstc thc Product, E3ch product fumish~ by CONBIO shall bc doemed ncccpl~ by Buyer upon completion of thc dcmonstrltions showim['thal thc product pcplot'ms according to published specifications and Buyer agrees to execute CONBIO's acceptance letter upon cmnplclions of such demonstrMion. N~withslandlng fmegoinlL, us~ of any Product by Buyer, its agents, cmployccs or licensees, for any purpose nfler delivery Ih~cof, v4thoul exprtSs wi'illin consent or CON1310. shall conslilUtC n¢ceplance of'thc Hoducct by Buyer. 13. WARJLA~: CONBIO wan'ant, c~c~ Product manufactarcd by it to be free from defects in material and wadonsnship for one (I) year from thc date o(' inslsllstlon~ provided however thll pins tcpllor4 or rcp~ircd under Ibis wL,'Tznly arc warranted only for Iht remaining unc~.osod po~io~ of thc o~ginsl wmanry period applical4c to thc prOduct in which they ire installed. Any I'tuducts purchased from CONBIO which become defective during this period will bc repaired or replaced hy CONI31O nl thc Buyer's T. itc or at COl,~lO's plant in Dublin. Callfomiz. or nls CON'I310 dcsik~sted facility, at CON~IO's option, thai being thc EXCLUSIVE ~Y undcr this wasTInty. Buyer shall promplly noti~ CON~310 oF any claim. and CONBIO shall have thc option to insp¢c.I and test each item claimed lo be defective at Buyer's site request the product mbc shipped to CONr~lO's plant or designated faclllty.. All t'rcight eh~5;cs within thc L~nitcd States lo*' repair ~ t~l~m~t of e dcf~tlvc ~u~ ~11 ~ ~mc by ~NBIO. ~c ~ o~toss oft~ ~ip~d m ~tiv~ to ~o~l~s pl~t ~ ~iLm~ facilily for rc~r~ ~pl~m~t ~ll N ~c by ~is wm~nly d~ not cxt~ to ~y ~o~uct CO~lO d~c~inc& w~ mllu~ ~ nc~l~tcd i~ sto~c, or h~in~; ~ thzt were m~i~cd, sc~ without CO~l~s eu~od~ti~. ~l~etcd in ~ t~ ~ th~ ~arc it w~ initially inst~l~, iF ~t~tl~ ~ ~lhout CON~IO's ~provat, o~ o~ginet idcmi6cation m~ings o. thc ~ucl hnvc WA~.tF~, ExP~F~S OR ~. A~ WA~ OF ~ERC~~ OR FI~ FOR A pA~C~ p~SE, ~CE~ ExP~S~Y S~ FOR~{ IN ~ w~N~. ~is w~ Is n~ usignsblc by Buyer, mdcss it is incident to a ~n~cing ~g~m~l or Nhcr s~i~l affection ~ich cO. lO ~ppmV~ in ~tlng. 14. L~A~ON OF L~: ~ NO EV~ W~ CONBIO BE ~ FOR A~ ~DI~ OR CONSEQ~AL D~G~ A~S~Q O~ OF OR ~ ~NNE~ON W~ ~ USE O~ pE~O~NCE OF ~E pRODU~. I S. ~S: Iff ne c~ ~c ~ucU to ~ returned ~thout ~l~s v ,men ~isslon. t6. ~DE~NIFIC~ I~ON: In Ih~ event ~t ~y p~u~ . is m~uf~clurcd n.~or auppli~ ~ing to 'd~fl~s and s~cifi~ti~. Buyer ~ ind &green th&t Buy~ shall ~mc iii m~flslbitity for, ~d shell indemnify ~d hold ~I0 hAml~s [rom liebili~ ~suhing from · ~c or ~llcl~ion that sud~ I,~uc( infringes or c~td~tcs to thc jnf~ng~enl uf ~y L~llc~ I?. LOCAL ~QUI~ME~: Buy~ shzlt bc ~S~asihtc for obtaining 111 ~its ~d for rattling oth~ rc'luircm~ls of ~y kin~ ~ll~Cr relating to still ~d I~l ~cs, ~lulitions ~d ~dinanccs. I~. APp~IC~ ~W: All ~nt~s for selc ~ucts by Co. LO shell ~ intoned under Iovcmc~ by thc Jnwol thc Santo of C~lifomJ~, Unit~ Stat~ or ~cfica ~out rcBud to ~flicts or principles. 19. ENTI~E AO~: ~c tc~s ~d condhinns u Scl fodh herein shall constitute thc cnilrc A~rc~Cnt ~m Buy~ and CONBIO. 20. ~tXCEL~N~OUS: CONBIO s~ll iai ~ ~und by ~Y Ic~s in the Buyers order ~jch nrc inconsistent with Iht Icnns h~cin scl f~h. A~pt~cc by Buycr ti:~sc Ictltt~ may bC ~ ~lher by ~11~ iCCCpt~CC by ~ci~ by Buy~ of deli~ of ~y ~c or any pan ur Iht ~ucts to ~ 6oli~, ~Js JKrc~t su~cs ~ athc l~ccmc, t beton ~10 ~ Buyer in ~nnccti~ with pr~ucts '~d sc~J~ h~coL It ~n~ ~ su~l~ent~ or ~ind~ ~cc~ by ~ting. duty jign~ ~ the au~Od~ Si~Jl~ o~ ~th panics. any p~ or Ibc I~S ~d ~itiom Itlld herein held void or un~forceabJ~ such piti ~ll ~ Ircitcd U ~v~lbic. Jci~nl ~lid thc ~dnd~ of Ihe terns ~dilio~ no~iths~diny thc ~ ~ p~S found void or uncflfo~oabie, ~ ~c of ~Y ~cl~h or default by Buyer, CONBIO shall bc onthlcd lo IH its ~s~ cnf~o ~Y ~ ill oF thcs~ T~J ~d c~dilions, including ~a~na~[c ~ltomcyJ' ud e~s' fccs ~d Continuum Biomedical d Medical D~vi~Jon o/ Continuum Elgctr~Optlc$, Inc. 6533 Start* L~c, Dublin, CA 94568 800/532-10~ or FAX ~ I ~6-2Z22 VER1FICATfON_' I, Leo D. Fa~Tell, ~,ent~' ~ha~ ~he statements matte m ~l~ foregoing docamem are u'u~ and correct To the best of my lcnowledge, ir~formafi¢,n and behef I unders:av-d fl~at any false srareme~rs made he,'em are su~)jec~ to the penalne$ of 18 ?aC S. §4904 relating to unsworn falsification to aamon~ics. Lea D. Farr~ll CEI~TIFICATE OF SEgVICE .a_ND NOW, on April ].~_, 2003, I hereby certi~ that I have served a ~zue and correct copy of the widUn document upox~ each ofrJ~e following pm:sons via first class U.S. Mail, certified, re~um receipt requested: Continuum Biomedical 3150 Central Expressway Santa Clara CA. 95051 Continuum Electro-Optics, Inc. 3150 Central Expressway Santa Clara CA 95051 ConTinuum Laser 3150 Cenrt'al Expressway Santa Clara CA 95051 By C. C_trainger HB 38085,/1 0000-31 CERTIFICATE OF SERVICE I, Stephen Moniak, Esquire, certify that I am this day serving a copy of the foregoing Preliminary Obi ections of Defendant Hoya Photonics, Inc. as Successor in Interest to Continuum Biomedical, a Medical Division of Continuum Electro-Optics, Inc. upon the person indicated below by United States first class mail, postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure as follows: C. Grainger Bowman, Esquire Powell, Trachtman, Logan, Carrie, Bowman & Lombardo, P.C. 114 North Second Street Harrisburg, PA 17101 DATE: May 28, 2003 ~~l~en Monial~,'Es[ui-re - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEO D. FARRELL, V. Plaintiff CONTINUUM BIOMEDICAL, A MEDICAL DiVISION OF CONTINUUM ELECTRO-OPTICS, 1NC., Defendant Civil Action No. 02-1225 Civil Term PRAECIPE FOR WITHDRAWAL and ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please withdraw my appearance on behalf of Leo D. Fatrell, Plaintiff, in the above- captioned matter. C. ~rainge~r B~wmar0 I.D. #15706 Please enter my appearance on behalf of Leo D. Farrell, Plaintiff, in the above-captioned matter. Date: January 9, 2004 POWELL, TRACItTMAN, LOGAN, CARRLE & LOMBARDO, p.C. By ~f A~thony S. gbtter I.D. #75903 ! 14 N. Segond Street Harrisburg, PA 17101 (717) 238-9300 HB:49312v1 4268-02 CERTIFICATE OF SERVICE AND NOW, on January 12, 2004, I hereby certify that I have served a true and correct copy of the within Praecipe for Withdrawal and Entry of Appearance upon the following person(s) by regular first class United States mail, postage prepaid. Jack M. Stover, Esq. Steve Moniak, Esq. Buchanan Ingersoll, PC One South Market Square 213 Market St., 3rd Floor Harrisburg, PA 17101 Anthony S./Eo{ter / HB:49353Vl 4268-02 POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. Anthony S. Potter Attorney I.D. No. 75903 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Leo D. Farrell IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEO D. FARRELL, V. Plaintiff CONTINUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendant Civil Action No. 02-1225 Civil Term PRAECIPE TO LIST PRELIMINARY OBJECTIONS FOR ARGUMENT To: Prothonotary of Cumberland County Kindly list the preliminary objections filed by Defendanl in the above-captioned case on the February 4, 2004 argument list. Date: January 12, 2004 POWELL, TRACttTMAN, LOGAN, CARRLE, & LOM~~L~.. BY ~nt h~o~[ S. P!ter~~--~ 114 North ;Second Street Harrisburg, PA 17101 (717) 238-9300 (Attorneys for Leo D. Farrell) HB:49301v1 4268-02 CERTIFICATE OF SERVICE AND NOW, on January I2, 2004, I hereby certify that I have served a true and correct copy of the within Praecipe to List Preliminary Objections fi}r Argument upon the following person(s) by regular first class United States mail, postage prepaid. Jack M. Stover, Esq. Steve Moniak, Esq. Buchanan Ingersoll, PC One South Market Square 213 Market St., 3rd Floor Harrisburg, PA 17101 Anthony S. Potter HB:49353v1 4268-02 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LEO D. FARRELL, Plaintiff CONTiNUUM BIOMEDICAL, A MEDICAL DIVISION OF CONTINUUM ELECTRO-OPTICS, INC., Defendant Civil Action No. 02-1225 Civil Term PRAECIPE TO DISCONTINUE Please mark settled the above-referenced matter settled and discontinued with prejudice. Date: March 29, 2004 POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. By ~ v Anth~ony ~. Potter I.D. #75903 114 N. Second Street Harrisburg, PA 17101 (717) 238-9300 Attorneys for Leo D. Farrell HB:49312vl 4268-02 _CERTIFICATE OF SERVICE AND NOW, on March 30, 2004, I hereby certify that I have served a true and correct copy of the within Praecipe to Discontinue upon the following person(s) by regular first class United States mail, postage prepaid. Steve Moniak, Esq. Buchanan Ingersoll, PC One South Market Square 213 Market St., 3rd Floor Harrisburg, PA 17101 HB:49353vl 4268-02