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Home My WebLink About02-15840 Andrew W. Barbin, Esquire JAMES SMITH DURKIN & CONNELLY, LLP 13 Sipe Avenue Hummelstown, PA 17036 (717) 533-3280 PERFECT SOLUTIONS, INC. 601 East Simpson Street Mechanicsburg, PA 17055-3456, Plaintiff V. Attorneys for Perfect Solutions, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW PROTOLOGICS CORPORATION DOCKET NO. Oa y„1517 Reisterstown Road, Suite 202 Baltimore, MD 21208, , Defendant PRAECIPE FOR A WRIT OF SUMMONS To: Curt Long, Prothonotary Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013-3387 Perfect Solutions, Inc., by and through counsel, James Smith Durkin & Connelly, LLP, hereby files this Praecipe for a Writ of Summons to be issued to the Defendant, Protologics Corporation, in the form attached hereto. JAMES SMITH DURKIN & CONNELLY, LLP Counsel for Plaintiff Perfect Solutions, Inc. DATED: March 28, 2002 P. O. Box 650 Hershey, PA 17033 (717) 533-3280 Andrew W. Barbin, Esquire JAMES Shnrx DUaxix & CONNELLY, LLP 13 Sipe Avenue Hummelstown, PA 17036 (717) 533-3280 Attorneys for Perfect Solutions, Inc. PERFECT SOLUTIONS, INC. : IN THE COURT OF COMMON PLEAS 601 East Simpson Street : CUMBERLAND COUNTY, PENNSYLVANIA Mechanicsburg, PA 17055-3456, Plaintiff CIVIL ACTION - LAW vi. PROTOLOGICS CORPORATION DOCKET NO. 6;Z 1517 Reisterstown Road, Suite 202 Baltimore, MD 212089 Defendant WRIT OF SUMMONS To: PROTOLOGICS CORPORATION 1517 Reisterstown Road, Suite 202 Baltimore, MD 21208 You are hereby notified that Perfect Solutions, Inc. has commenced civil causes of action against you. DATED: 7 )Zwz! a oZCXj? Curt Long, Prothonotary Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013-3387 Cumberland County Prothonotary By: (Prothonotary or Deput ) (Seal of Court) 1 ? W ?o c? J C_ P 7) i 03 a, 1 .n r -s. 0 Andrew W. Barbin, Esquire JAMES SMITH DuRKiN & CONNELLY, LLP 13 Sipe Avenue Hummelstown, PA 17036 (717) 533-3280 PERFECT SOLUTIONS, INC. 601 East Simpson Street Mechanicsburg, PA 17055-3456, Plaintiff V. Attorneys for Perfect Solutions, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW PROTOLOGICS CORPORATION DOCKET NO. 02-1584 Civil Term 1517 Reisterstown Road, Suite 202 Baltimore, MD 21208, Defendant PRAECIPE TO REISSUE OR REINSTATE Plaintiff, by and through counsel, files this Praecipe to Reissue or Reinstate and avers as follows: 1. A Writ of Summons was issued April 24, 2002. See attached. 2. Plaintiff seeks reissuance and/or reinstatement to complete service of original process. WHEREFORE, Plaintiff respectfully requests that the original Writ of Summons be reissued and/or reinstated. JAMES SMITH DURKIN & CONNELLY, LLP Respectfully Atty. :,#-43571 P. O. ox 650 Hershey, PA 17033 (717) 533-3280 Counsel for Plaintiff Perfect Solutions, Inc. DATED: July 9, 2002 Andrew W. Barbin, Esquire JAMES SMITH DURKIN & CONNELLY, LLP 13 Sipe Avenue Hummelstown, PA 17036 (717) 533-3280 PERFECT SOLUTIONS, INC. 601 East Simpson Street Mechanicsburg, PA 17055-3456, Plaintiff Attorneys for Perfect Solutions, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. PROTOLOGICS CORPORATION 1517 Reisterstown Road, Suite 202 Baltimore, MD 21208, Defendant DOCKET NO. 02-1584 Civil Term WRIT OF SUMMONS To: PROTOLOGICS CORPORATION 1517 Reisterstown Road, Suite 202 Baltimore, MD 21208 You are hereby notified that Perfect Solutions, Inc. has commenced civil causes of action against you. DATED: Curt Long, Prothonotary Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013-3387 Cumberland County Prothonotary (Prothonotary or Deputy) By: (Seal of Court) ' ] AA AES SMrM ._-11RM & CONNELLY LLp April 24, 2002 1 G t1 VLA FACSIMILE (410/415-7947) 134 SIPE AVENUE HUMMELSTOWN, PA AND CERTIFIED MAIL, 17036 RETURN RECEIPT REQUESTED Mu ADDRESS: /? Lawrence R. Walsh, CEO P.OO.B BO OX 650 HERSHEY, PA 17033 Protologics Corporation TEL. 717.533.3280 1517 Reisterstown Road Suite 202 FAX 717.5312795 , T? p Baltimore, MD 21208 GAL. INFOCJSDLEGALCOM WWW.JSDC.COM Re: Perfect Solutions, Inc. v. Protologics Corporation C.C.P. Cumberland County Docket No. 02-1584 Civil Term Dear Mr. Walsh: GARY L. JAMES MAX J. SMITH, JR. This firm has been retained by Perfect Solutions, Inc. to address concerns arising KAREN JO HN J. CONINELLY, JR. from the contract between your company and Perfect Solution, Inc. As indicated by SCO NA T D Mr. Cavanaugh previously, it is the position of Perfect Solutions, Inc. that the material TT . I ETTERICK JAMES F. SPADE obligations of your contract were not met and that the intended benefit of the bargain GREGORY K. RICHARDS RICHARD L. DA L EN not provided. This is to renew the request for return of the origin consideration SUSAN M. JARAD W. HAKADEL NDELMAN , y57,000.00. DONNA M. MULLIN EDWARD P. SEESER NEIL W. YAHN Please find enclosed a courtesy CO py of a Writ of Summons which has been filed BERNARD A. RYAN, JR. in the Cumberland County of Common Pleas with regard to this dispute Also enclosed AOF C UN EL: . please find an Acceptance of Service which you need to return to us in the enclosed NDREW W. BARBIN HERSHEY,PA , self-addressed, stamped envelope provided for your convenience. Please find also MAN LLEY & DEAs, LLC COLUMBUS, OH Notices of Deposition in aid of filing of a Complaint. While an opportunity remains to amicably resolve this matter, your immediate attention is required to avoid adversarial litigation. Please contact me or have your attorney contact me at your earliest opportunity. AWB/meg Enclosures i r c: Lee Cavanaugh, President Andrew W. Barbin, Esquire JAmEs &am Duxxar & CoNmuY, LLP 13 Sipe Avenue Hummelstown, PA 17036 (717) 533-3280 Attorneys for Perfect Solutions, Inc. PERFECT SOLUTIONS, INC. : IN THE COURT OF COMMON PLEAS 601 East Simpson Street : CUMBERLAND COUNTY, PENNSYLVANIA Mechanicsburg, PA 17055-3456, , Plaintiff CIVIL ACTION - LAW A. PROTOLOGICS CORPORATION DOCKET NO. oa 1517 Reisterstown Road, Suite 202 Baltimore, MD 21208, l Defendant WRIT OF SUMMONS To: PROTOLOGICS CORPORATION 1517 Reisterstown Road, Suite 202 Baltimore, MD 21208 You are hereby notified that Perfect Solutions, Inc. has commenced civil causes of action against you. DATED: oZ t ?C?? Curt Long, Prothonotary Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013-3387 (Seal of Court) Cumbe and County Prothonotary By: (Prothonotary) TRUE COPY FROM RECORD 10 ToWmony whereof, f two unto set my hand and the" Of y Cou at Isle, p&. 0 C) n C v a C_ .._i -vaz _r` n r .r :'•' r n " "?.-... _16 T rn -1 • J -t Andrew W. Barbin, Esquire ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 506-4670 Attorneys for Perfect Solutions, Inc. PERFECT SOLUTIONS, INC. : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. PROTOLOGICS CORPORATION DOCKET NO. 02-1584 Civil Term Defendant PRAECIPE TO UPDATE ENTRY OF APPEARANCE TO: CURT LONG, Prothonotary Please entry the appearance of the undersigned as counsel for Plaintiff in the above referenced matter. Respectfully submitted, Andrew W. Barbin Atty. I.D. ##43571 ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 506-4670 Counsel for Plaintiff DATED: December 10, 2002 Andrew W. Barbin, Esquire ANDREW W.BARBm,P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 506-4670 Attorneys for Perfect Solutions, Inc. PERFECT SOLUTIONS, INC. : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. PROTOLOGICS CORPORATION DOCKET NO. 02-1584 Civil Term Defendant CERTIFICATE OF SERVICE I, ANDREW W. BARBIN, do hereby certify that on the date indicated below, served a true and correct copy of the foregoing PRAEC[PE To UPDATE ENTRY OF APPEARANCE by having the foregoing document served by United States first-class mail, postage prepaid addressed to the following: Mark F. Scurti, Esquire Scurti and Gulling 1511 Court Square Building 200 East Lexington Baltimore, MD 21202-3530 Andrew W. Barbin DATED: December 10, 2002 C7 0 ? ? c rv t3 C rn z C, y. - -ii Andrew W. Barbin, Esquire ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 5064670 PERFECT SOLUTIONS, LTD. Plaintiff V. Attorneys for Perfect Solutions, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW PROTOLOGICS FAMILY w PRACTICE ASSOCIATES, LTD. DOCKET NO. 02-3?d+f Civil Term Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE, OR NO FEE. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 800-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan rods adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despu6s de la notificaci6n 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 acci6n 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 reclamaci6n 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 DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O 13AJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 800-990-9.108 Respectfully submitted, Andrew W. Barbin, Esquire Atty. I.D. 43571 ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 717-506-4670 DATED: 2 Andrew W. Barbin, Esquire ANDREW W. BARBIN, P.C. 5020 RITTER ROAD, SUITE 109 MECHANICSBURG,PA 17055 717-506-4670 PERFECT SOLUTIONS, INC. 601 East Simpson Street Mechanicsburg, PA 17055-3456, Plaintiff V. PROTOLOGICS CORPORATION 1517 Reisterstown Road, Suite 202 Baltimore, MD 21208, Defendant Attorneys for Perfect Solutions, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02-1584 Civil Term COMPLAINT Plaintiff, Perfect Solutions, Inc., (Perfect Solutions), by and through undersigned counsel, make this Complaint and aver as follows: PARTIES 1. Plaintiff, Perfect Solutions, Inc., (Perfect Solutions) is a Pennsylvania corporation with principle place of business in Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant, Protologics Corporation (Protologics), is a Maryland corporation with offices in Baltimore, Maryland. JURISDICTION AND VENUE 3. The events which give rise to this action occurred in Cumberland County, Pennsylvania. 4. Jurisdiction and venue are proper in the Court of Common Pleas of Cumberland County. FACTS COMMON TO ALL COUNTS 5. Perfect Solutions provides professional healthcare management consulting services for a fee. 6. Protologics is a software development company which sought to introduce its software in the Pennsylvania healthcare market. 7. Perfect Solutions became aware of the ProtoMED product of Protologics. 8. As represented by Protologics, the ProtoMED product would present singular advantages to Perfect Solutions clients. 9. Protologics, through Lawrence Walsh and other agents and employees, provided detailed favorable descriptions of the characteristics and performance of its product, the state of development, and state of implementation, availability of user manuals and nature and quality of customer support. 10. Availability of user manuals and the nature and quality of customer support, are critical factors for consultants and end users in the medical practice field. 11. Protologics misrepresented its product as unique regarding its Claims Management Data Manager, when there was a substantially similar competitive product with this feature. 12. Protologics misrepresented its product as unique regarding its Electronic Medical Records feature when it was not, and when several competitors had implemented a fully integrated feature and Protologics had not. 13. Protologics dropped development of their Electronic Medical Records feature, promised to integrate the product of another vendor, but did not adequately integrate that product. 2 14. Protologics misrepresented itself as a solvent and successful company, but has since disclosed that it lost money the past five years and was judgment proof, rendering any warranty offered to potential buyers essentially illusory and making it impossible to ethically market its product. 15. Protologics intentionally or negligently, materially misrepresented the quality and capabilities of the ProtoMED product, the state of development, state of implementation, availability of user manuals and nature and quality of sales and customer support available and to be provided. 16. The misrepresentations were intended to induce and in fact, directly and proximately induced Perfect Solutions to enter into a contract with Protologics to its detriment. 17. The reliance of Perfect Solutions upon the misrepresentations was reasonable. 18. As a direct and proximate result of the misrepresentations entered into an Independent Dealership Agreement and purchased five licenses for the ProtoMED product under that agreement at the price of $55,000. 19. Protologics continued to misrepresent the quality and capabilities of the ProtoMED product, the state of development, state of implementation, availability of user manuals and nature and quality of sales and customer support available and to be provided. 20. In reasonable reliance on the ongoing misrepresentations Perfect Solutions hired new staff and devoted substantial employee work time to development and implementation of a sales plan for the product. 21. The basic thrust of the marketing plan was to identify a few particularly good prospects have them purchase and implement the product, iron out any user concerns and then use the new clients as critical references in a general marketing push to existing users of Perfect 3 Solutions' sister company's consulting services customers and leads generated from the related consulting business. 22. Protologics was to facilitate this process by putting together marketing materials in accordance with the contract, but Protologics did not provide the required materials. 23. Protologics breached the contract by offering marketing materials only for an additional fee. 24. The absence of the promised user manual was particularly damaging to marketing efforts, as potential customers were leery of software for which a user manual was not available and "coming soon." 25. Under the contract, Protologics was to provide training to Perfect Solutions staff; however, the training was inadequate. 26. The "training" which was provided was mema/submenu driven, rather than work flow oriented; it was like being taught to drive by being given an owners manual, and then each part identified. 27. The training did not attempt to demonstrate the operation of the program in a simulated office work environment, and so was virtually useless for marketing or troubleshooting with prospective customers. 28. Protologics' sales support was materially inadequate, and their failure to provide timely responses to basic questions regarding the system resulted in lost sales opportunities and substantial wasted marketing expenses. 29. While Mr. Walsh indicated general availability for demonstrations, his staff did not provide the technical support necessary to allow Perfect Solutions staff to market the product themselves. 4 30. Perfect Solutions provided substantial expert feedback and suggestions regarding potential users' problems, which Protologics ignored and refused to address. 31. The continued failure to provide a user manual increased reliance upon phone technical support. 32. Protologics also failed to provide adequate integrated or web based help and/or FAQ support for the software, also rendering the live company phone technical support more critical. 33. Protologics breached its contract by failing to provide adequate phone technical support. 34. The phone technical support provided was inadequate at inception and deteriorated over time. 35. Protologics breached the agreement by proceeding on a protected lead with respect to the Loudon Medical Group, excluding Perfect Solutions, and losing the sale. 36. Protologics failed to provide timely copies of updates and new versions, and provided inadequate and incorrect install instructions which resulted in the loss of sales opportunities and wasted employee time. 37. Notwithstanding hindrances and interferences caused by Protologics, Perfect Solutions secured a sale to Oakwood Center. 38. Protologics made a series of misrepresentations to Perfect Solutions and to Oakwood Center regarding the quality and capabilities of the ProtoMEI) product, the state of development, state of implementation, availability of user manuals, nature and quality of sales and customer support available and to be provided, the timing of installation and the timing when the product would be operational. 5 39. Protologics agreed to undertake the installation because of problems with installation of its new version, and to address other concerns which had been raised by Perfect Solutions regarding the product and the lack of adequate manuals and help files. 40. Protologics then repeatedly and unreasonably delayed installation. 41. Protologics rescheduled the Oakwood Centex installation at the eleventh hour making it impossible for Perfect Solutions to even attend the installation. 42. Protologics intentionally withheld information regarding the absence of all required certifications for electronic billing when they did not have them, which resulted in an additional delay to implementation for Oakwood Center. 43. The patent inadequacy in phone technical support was a substantial factor in the loss of the Oakwood sale (discussed more fully below); their repeated calls went without response for months, and when they complained about poor technical support, it further deteriorated. 44. The above ongoing misrepresentations and breaches of contract by Protologics made the marketing of the ProtoMED product untenable, and require reduction of the staff added for the marketing effort, with consequent loss of the benefit of substantial training hours spent by such staff. 45. The difficulties of Oakwood Center result in a loss of a satisfied reference for marketing efforts, further crippling marketing efforts. 46. Perfect Solutions communicated its concerns regularly in a timely manner and received only untimely, inadequate and sporadic partial responses. 47. On October 24, 2001, Perfect Solutions requested rescission of the agreement, refund of the license fees and restructuring of the agreement to a straight commission on referral basis to allow Protologics to address the stated concerns directly and to allow Protologics to continue to 6 benefit from the potential referral base and the remaining good will Perfect Solutions had for the product and the company. 48. On October 31, 2001, Protologics declined the request without addressing the substance of the concerns expressed leading to the request. 49. On November 28, 2001, Oakwood informed Perfect Solutions that they were dissatisfied with support from Protologics particularly with a lack of help with their loading of master patient files (a basic function) and the program sequencing files inconsistently. 50. Protologics blamed the user and unreasonably failed to provide timely and appropriate support. 51. The undisclosed credentialing for electronic billing delay was exacerbated by misrepresentations by Protologics regarding required time for credentialing and Protologics' delays in credentialing. 52. While Protologics indicated that credentialing would take 45-60 days from installation, final Medicare credentialing for Oakwood did not occur until January 16, 2002, 100 days after the October 8, 2001 installation; causing hardship to Oakwood, and undermining any marketing opportunity the Oakwood sale would have presented for Perfect Solutions. 53. Protologics continued to provide inadequate support to Oakwood Center until February 4, 2002, when Oakwood discontinued its attempt to implement the use of the product and rescinded the sale. 54. Oakwood had just cause to rescind based upon the material misrepresentations, defects in the system, delays to implementation, and complete inadequacy of support from Protologics. 7 55. The above multiple material misrepresentations of Protologics made it impracticable fro Perfect Solutions to ethically market the ProtoMED product. 56. The above patent deficiencies in the Product and support of the product by Protologics made it impracticable to ethically market the ProtoMED product. 57. The above conduct breached the express and implied obligations of Protologics to Perfect Solutions and to the end users, which made it impossible for Perfect Solutions to ethically market the product and receive the intended benefit of its bargain. 58. The above conduct constitutes a willful hindrance which invalidates and renders inoperative any exculpatory provision of the agreement. 59. As a direct and proximate result of the misrepresentations and the breaches of contract, Perfect Solutions purchased and was unable to sell five licenses for $55,000 which are now worthless and regarding which Perfect Solutions seeks rescission and return of the full consideration, and/or damages in the amount of the full consideration. 60. As a direct and proximate result of the misrepresentations and the breaches of contract, Perfect Solutions incurred staff time and marketing expenses in an amount in excess of $75,000, which would not have been incurred but for the misrepresentations and which were made fruitless by the breaches of contract which prevented recoupment of such expenses through sale of the licenses and profit thereon. 61. This action was commenced by writ of summons in March 2002, reissued and service was accepted by out of state counsel for Protologics in July 2002. 62. Pre-complaint alternative dispute resolution attempts were unsuccessful. COUNT I - RESCISSION - FRAUDULENT INDUCEMENT 63. Paragraphs 1 through 62 are incorporated by reference here as if restated verbatim. 8 64. Protologics fraudulently induced Perfect Solutions to enter into the Independent Dealership Agreement and to purchase five licenses for the ProtoMED product under that agreement at the price of $55,000. 65. Under the facts and circumstances of this matter, it is equitable and appropriate to rescind the contract and require the return of the original consideration, $55,000. 66. In order to return the parties to their precontract positions, it is also equitable and appropriate to award Perfect Solutions $75,000 as the amount of additional damages incurred as the direct and proximate result of the fraudulent inducement. WHEREFORE, Perfect Solutions seeks judgment against Protologics in an amount in excess of the arbitration amount, together with costs, prejudgment interest, and such other relief as this court may deem just. COUNT II - FRAUD-INTENTIONAL MISREPRESENTATION 67. Paragraphs 1 through 67 are incorporated by reference here as if restated verbatim. 68. Protologics made numerous material misrepresentations before and after the contract was entered into which made it impossible for Perfect Solutions to ethically market the product and recoup its investment in the product. 69. The misrepresentations were material, intentional and fraudulent; they were intended to induce reliance, induced reliance and caused direct and proximate damages as indicated above. 70. Perfect Solutions reasonably relied upon the misrepresentations and suffered damages in excess of $130,000 as a direct and proximate result. WHEREFORE, Perfect Solutions seeks judgment against Protologics in an amount in excess of the arbitration amount, together with costs, attorney's fees and such other relief as this Court may deem just. 9 COUNT III - NEGLIGENT MISREPRESENTATION 71. Paragraphs 1 through 70 are incorporated by reference here as if restated verbatim. 72. Protologics made numerous material misrepresentations before and after the contract was entered into which made it impossible for Perfect Solutions to ethically market the product and recoup its investment in the product. 73. Assuming, arguendo some or all of the misrepresentations were made negligently rather than intentionally, the misrepresentations nonetheless were made under circumstances in which it would be just to require Protologics to assume responsibility for damages arising from the misrepresentations, as they induced reasonable reliance, rendered the ethical marketing of the licenses impossible, and direct and proximate caused damages as indicated above. 74. Perfect Solutions reasonably relied upon the misrepresentations and suffered damages in excess of $130,000 as a direct and proximate result. WHEREFORE, Perfect Solutions seeks judgment against Protologics in an amount in excess of the arbitration amount, together with costs, attorney's fees and such other relief as this Court may deem just. COUNT IV - BREACH OF CONTRACT 75. Paragraphs 1 through 74 are incorporated by reference here as if restated verbatim. 76. As detailed above, Protologics materially breached its express and implied obligations under its agreement with Perfect Solutions in numerous material respects, which rendered the ethical marketing of the license impossible. 77. The breaches caused the loss of the value of the licenses, substantial unproductive expense and lost employee time as also detailed above. 10 78. The multiple material breaches of contract directly and proximately caused direct and foreseeable direct and consequential damages as detailed above in an amount in excess of $130,000 ($55,000 license expense, and $75,000 marketing and staff expenses for marketing effort which Protologics breaches rendered fruitless). WHEREFORE, Perfect Solutions seeks judgment against Protologics for direct and consequential damages from the multiple material breaches of contract in an amount in excess of the arbitration amount, together with costs, pre judgment interest and such other relief as this Court may deem just. Respectfully e W. Barbi'il`J / At . .D.t43571 ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 506-4670 Counsel for Plaintiff DATED: June 14, 2004 11 +7176918255 Andrew W. Barbin, Esquire ANMM W. BAR81N, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 5064670 PERFECT SOLUTIONS, LTD. Plaintiff V. PROTOLOGICS FAMILY PRACTICE ASSOCIATES, LTD. Defendant 466 P02 JUN 14 '04 13:57 Attorneys for Perfect Solutions, Inc. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02.3947 Civil Term VERIFICATION I, of Perfect Solutions, Ltd., verify that the statements made in the foregoing COMPS MT are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 P&C.S. § 4904 relating to ummm falsification to authorities. Perfect Solutions, Ltd. PQEStO^e.eUY DATED: &11g1py Andrew W. Barbin, Esquire ANDREW W. BAREIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 506-4670 Attorneys for Perfect Solutions, Inc. PERFECT SOLUTIONS, LTD. : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW PROTOLOGICS FAMILY PRACTICE ASSOCIATES, LTD. DOCKET NO. 02-3947 Civil Term Defendant CERTIFICATE OF SERVICE I, ANDREW W. BARBIN, do hereby certify that on the date indicated below, served a true and correct copy of the foregoing COMPLAINT by having the foregoing document served by facsimile and United States first-class mail, postage prepaid addressed to the following: VIA FACSIMILE (410/244-0775) Mark F. Scurti, Esquire Scurti and Gulling 1511 Court Square Building 200 East Lexington Baltimore, MD 21202-353(1 %/n W. Barbin DATED: June 14, 2004 H r? ?= o - c? _ r TI ? ' T-. IZl - . r i?] ?`? ill U1 C7, i) I " ? ? .?' r ? N ( .1"? i _ tJ ?:? w ? --? P'' 1^ R. James Reynolds, Jr., Esquire PA Supreme Court I.D. No. 10252 Email: Lynolds aattanlaw com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, Pennsylvania 17108-9500 Telephone: (717) 255-7604 Attorney for Defendant FAX: (717) 236-8278 Protologics Corporation IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PERFECT SOLUTIONS, INC., N Plaintiff n No. 02 - 1584 - Civil Term T V. CIVIL ACTION - LAW PROTOLOGICS CORPORATION, " =? --1 Defendant DEFENDANT'S PRELIMINARY u. OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant Protologics Corporation ("Defendant"), by its undersigned attorney, and pursuant to Pa. R.C.P. No. 1028 files these Preliminary Objections to the Complaint of Plaintiff Perfect Solutions, Inc. ("Plaintiff'). 1. This action was commenced by Writ of Summons on April 2, 2002. 2. Recently, Plaintiff filed a Complaint consistiing of four counts, as follows: (1) Count I - Rescission - Fraudulent Inducement; (2) Count II - Fraud - Intentional Misrepresentation; (3) Count III - Negligent Misrepresentation; and (4) Count IV-Breach of Contract. I. MotiontoStrikePursuanttoPa.R.C.P.No.1028a(2)for Failure to Conform to Rule of Court (Failure to Attach Written Contract 3. Plaintiffs claim is purportedly based upon a written contract entered into between Plaintiff and Defendant. 4. Pa. R.C.P. No. 1019(i) provides that when any claim is based upon a writing, the pleader shall attach a copy of the writing to the Complaint. 5. The contract upon which Plaintiffs claim is based is not attached to the Complaint. 6. Pursuant to Pa. R.C.P. No. 1028(a)(2), a party may preliminarily object by way of a motion to strike a pleading because of lack of conformity to rule of court. 7. By not attaching a copy of the contract to the Complaint, Plaintiff has failed to conform to Rule 1019(1). 8. Plaintiffs Complaint should be stricken for failure to attach an essential document. Adamo v. Cini, 656 A.2d 576, 579 (Pa. Commw. 1995). WHEREFORE, Defendant Protologics Corporation requests the Court to strike Plaintiffs Complaint for failure to conform to rule of court. II. Motion to Strike Pursuant to Pa. R.C.P. No. 1028(a)(2) for Failure to Conform to Rule of Court (Lack of Specificity of Damages) 9. Pa. R.C.P. No. 1019(f) requires averments of special damage to be specifically stated. 10. In paragraph 66 of Count I of the Complaint, Plaintiff alleges that it would be "appropriate to award Perfect Solutions $75,000 as the amount of additional damages incurred as the direct and proximate result of the fraudulent inducement'. -2- 11. In paragraph 70 of Count 11 of the Complaint:, Plaintiff alleges that it "suffered damages in excess of $130,000 as a direct and proximate result [of Defendant's misrepresentations]." 12. In paragraph 74 of Count III of the Complaint, Plaintiff alleges that it "suffered damages in excess of $130,000 as a direct and proximate result [of Defendant's misrepresentations]." 13. In paragraph 78 of Count IV of the Complaint:, Plaintiff alleges that it incurred damages "in an amount in excess of $130,000 ... [including] $75,000 marketing and staff expenses for marketing effort which Protologics breaches rendered fruitless ...." 14. The foregoing averments of damages are not specifically stated as required by Rule 1019(f). 15. The averments of damage lack sufficient specificity to apprise Defendant of the nature of the damages being claimed by Plaintiff. 16. Pursuant to Pa. R.C.P. No. 1 028(a)(2), a party may preliminarily object by way of a motion to strike a pleading because of lack of conformity to rule of court. 17. By not averring the damages with specificity, Plaintiff has failed to conform to Rule 1019(f). 18. Plaintiffs Complaint should be stricken for failure to state its damages with specificity. WHEREFORE, Defendant Protologics Corporation request the Court to strike Plaintiffs Complaint for failure to conform to rule of court. -3- III. Motion to Strike Scandalous and Impertinent Matter Pursuant to Pa. R C P No. 1028(a)(2) 19. Plaintiffs Complaint is based upon a contract allegedly entered into between Plaintiff and Defendant whereby Plaintiff agreed to perform certain duties as an independent dealership with regard to Defendant's ProtoIMED products. 20. In paragraph 14 of the Complaint, Plaintiff alleges that Defendant "has since disclosed that it lost money the past five years and was judgment proof'. 21. In paragraph 62 of the Complaint, Plaintiff alleges that "pre-Complaint alternative dispute resolution attempts were unsuccessful." 22. The foregoing allegations in paragraphs 14 and 62 are irrelevant, immaterial, and inappropriate to the causes of action asserted in Plaintiffs Complaint against Defendant. 23. Accordingly, the foregoing allegations in paragraphs 14 and 62 of the Complaint include scandalous or impertinent matter. 24. Pursuant to Pa. R.C.P. No. 1028(a)(2), a party may preliminarily object by way of a motion to strike a pleading because of scandalous or impertinent matter. 25. The foregoing allegations in paragraphs 14 and 62 of the Complaint should be stricken because they include scandalous or impertinent matter. WHEREFORE, Defendant Protologics Corporation requests the Court to strike paragraphs 14 and 62 of Plaintiffs Complaint. -4- IV. Demurrer (Count I - Rescission - Fraudulent Inducement 26. In Count I of the Complaint, Plaintiff attempts to state a cause of action for fraudulent inducement (i.e. that Defendant fraudulently induced Plaintiff to enter into a contract), and requests, inter alia, the rescission of the contract. 27. In order to state a cause of action for fraudulent inducement, the following elements must be pled with particularity: (1) a misrepresentation; (2) scienter on behalf of the representer; (3) an intention by the representerthat the recipient will be induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damage to the recipient proximately caused by the reliance. Banks v. Jerome Taylor & Assoc., 700 A.2d 1329, 1333 (Pa. Super. 1997). 28. Pa. R.C.P. No. 1019(b) requires fraud to be averred with particularity. 29. Plaintiff has not pled the foregoing elements with particularity. 30. By reason of the foregoing, Count I of Plaintiffs Complaint should be dismissed for legal insufficiency pursuant to Pa. R.C.P. No. 1028(a)(4). WHEREFORE, Defendant Protologics Corporation requests the Court to dismiss Count I of Plaintiffs Complaint for failing to state a claim for which relief can be granted. V. Demurrer (Count II - Fraud - Intentional Misrepresentation 31. In Count II of the Complaint, Plaintiff attempts to state a cause of action for intentional misrepresentation against Defendant. 32. In order to state a cause of action for intentional misrepresentation, the following elements must be pled with particularity: (1) a representation; (2) which is material 5- 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 the intent of misleading another into relying on it; (5) justifiable reliance on the representation; and (6) the resulting injury was proximately caused by the reliance. Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999). 33. Pa. R.C.P. No. 1019(b) requires fraud to be averred with particularity. 34. Defendant has not pled the foregoing elements with particularity. 35. By reason of the foregoing, Count II of Plaintiff's Complaint should be dismissed for legal insufficiency pursuant to Pa. R.C.P. No. 1028(a)(4). WHEREFORE, Defendant Protologics Corporation requests the Court to dismiss Count II of Plaintiffs Complaint for failing to state a claim for which relief can be granted. VI. Demurrer (Count III - Negligent Misrepresentation 36. In Count III of the Complaint, Plaintiff attempts to state a cause of action for negligent misrepresentation against Defendant. 37. In order to state a claim for negligent misrepresentation, the following elements must be pled: (1) a misrepresentation of a material fact; (2) the representer either knew of the misrepresentation, made the misrepresentation without knowledge of its truth orfalsityor made the representation under circumstances in which he ought to have known of its falsity; (3) the representer intended the representation to induce another to act on it; and (4) injury resulted to the party acting in justifiable reliance on the misrepresentation. Gibbs v. Ernst, 647 A.2d 882, 890 (Pa. 1994). 38. Plaintiff has not pled the foregoing elements. 6- 39. By reason of the foregoing, Count III of Plaintiffs Complaint should be dismissed for legal insufficiency pursuant to Pa. R.C.P. No. 1028(a)(4). WHEREFORE, Defendant Protologics Corporation requests the Court to dismiss Count III of Plaintiffs Complaint for failing to state a claim for which relief can be granted. VII. Demurrer (Count IV - Breach of Contract) 40. In Count IV of the Complaint, Plaintiff attempts to state a cause of action for breach of contract against Defendant. 41. In order to state a cause of action for breach of contract, the following elements must be pled: (1) the existence of a contract to which the plaintiff and defendant were parties; (2) the essential terms of the contract; (3) a breach of duty imposed by the contract; and (4) that damages resulted from the breach. C:orestates Bank. N .A. v Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999). 42. Plaintiff has not pled the foregoing elements. 43. Plaintiff, inter alia, has not attached a copy of the contract to the Complaint, alleged the essential terms of the contract, alleged the duties imposed upon Defendant by the contract, or the breach of any of those duties by Defendant. 44. By reason of the foregoing, Count IV of Plaintiffs Complaint should be dismissed for legal insufficiency pursuant to Pa. R.C.P. 1028(a)(4). WHEREFORE, Defendant Protologics Corporation requests the Court to dismiss Count IV of Plaintiffs Complaint for failing to state a claim for which relief can be granted. 7- VIII. Insufficient Specificity of Complaint 45. Pa. R.C.P. No. 1019(a) requires the material facts upon which a cause of action is based to be stated in a concise and summary form. 46. Plaintiffs Complaint fails to set forth with specificity the material facts on which Plaintiffs claim is based in all four counts of the Complaint. 47. Plaintiffs Complaint lacks sufficient specificity to apprise Defendant of the issues to be litigated and/or to allow it to adequately prepare and assert defenses to Plaintiffs allegations. 48. In the event the Court denies Defendant's Preliminary Objections in the nature of demurrers to any of the four Counts of Plaintiffs Complaint, alternatively Defendant requests that the Court order Plaintiff to file a more specific pleading pursuant to Pa. R.C.P. No. 1028(a)(3) with respect to those Counts. WHEREFORE, Defendant Protologics Corporation, in the alternative, requests the Court to order Plaintiff to file a more specific pleading. Date: July 14, 2004 L?fv? R. Ja Reynolds, J*. V Attorney I.D. #10252 Email - jreynolds a7ttanlaw com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 (717) 255-7604 / FAX (717) 236-8278 Attorney for Defendant Protologics Corporation s- CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing Preliminary Objections to Plaintiffs Complaint on Plaintiff by placing the same in the United States Mail at Harrisburg, Pennsylvania, first-class postage prepaid, on the 14th day of July, 2004, addressed as follows: Andrew W. Barbin, Esquire Andrew W. Barbin, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, Pennsylvania 17055 (Attorney for Plaintiff) Thomas, Thomas, Armstrong & Niesen By: J Sharon Dell-Gallagh r, Sec ary R. James Reynolds, Jr., Esquire PA Supreme Court I.D. No. 10252 Email: ireynolds Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post office Box 9500 Harrisburg, Pennsylvania 17108-9500 Telephone: (717) 255-7604 FAX: (717) 236-8278 Attorney for Defendant Protologics Corporation IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PERFECT SOLUTIONS, INC., Plaintiff No. 02 - 1584 - Civil Term V. PROTOLOGICS CORPORATION, Defendant CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Enter my appearance on behalf of Defendant Protologics Corporation in the above- captioned matter. Papers may be served at the address set forth below. Date: July 14, 2004 /< - - R. Ja s Reynolds, r. Attorney I.D. #10252 Email - ir eynold;>Ca?ttan3 rr Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 (717) 255-7604 / FAX (717) 236-8278 Attorney for Defendant Protologics Corporation CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing Praecipe for Entry of Appearance on Plaintiff by placing the same in the United States Mail at Harrisburg, Pennsylvania, first-class postage prepaid, on the 14th day of July, 2004, addressed as follows: Andrew W. Barbin, Esquire Andrew W. Barbin, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, Pennsylvania 17055 (Attorney for Plaintiff) Thomas, Thomas, Armstrong & Niesen By: S aron Cell-Gallagh r, Secretary c., C) -^ I'7 47 -fCJ At7 ? i r . ' 1 c,; .j ern C O G1i '. J Andrew W. Barbin, Esquire ANDREW W. BARBIN, P.C. 5020 BITTER ROAD, SUITE 109 MECHANICSBURG, PA 17055 717-506-4670 PERFECT SOLUTIONS, INC. 601 East Simpson Street Mechanicsburg, PA 17055-3456, Plaintiff Attorneys for Perfect Solutions, Inc. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. PROTOLOGICS CORPORATION DOCKET NO. 02-1584 Civil Term 1517 Reisterstown Road, Suite 202 Baltimore, MD 21208, Defendant RESPONSE TO PRELIMINARY OBJECTIONS Plaintiff, Perfect Solutions, Inc., (Perfect Solutions), by and through undersigned counsel, Responds to Defendant's Preliminary objections as follows. A Brief will be filed in accordance with Local Rule 210-6, following listing under Rule 210-2. 1. Admitted. 2. Admitted, the Complaint speaks for itself. Motion to Strike 3. Admitted. 4. Admitted. 5. Admitted. The document was inadvertently omitted from the filing. Copies were exchanged by the parties between the filing of the Summons and the filing of the Complaint and a copy is attached hereto. There is no reason to Strike in this context. 6. Admitted. 7. Admitted. g. Denied as a conclusion of law. The Contract is attached. The appropriate remedy is to require that the omitted documents be supplied. See City of Philadelphia v. Human Services Consultants, II, Inc., _ D&C4th _ , Slip Copy (Phila. Co. 2004)(2004 WL 717240); St. Hill & Assocs., P.C. v. Capital Asset Research Corp., May 2000, No. 5035, slip op. at 3 (C.P.Phila.Sept. 2, 2000) (Herron, J.) (overruling objection based on 1019(1) where plaintiff supplied both the court and the defendant with a copy of the missing document). WHEREFORE, the Motion to Strike should be denied. II. Motion to Strike 1019(F) 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Denied as a conclusion of law. Damages are not liquidated at this time and require discovery and probably an expert report, which is why each prayer for relief is stated in accordance with Pa.R.Civ.P. 1021(b). The amounts indicated reflect amounts and types of special damages known to date (e.g. the cost of the valueless license and the amounts wasted on the employee dedicated to the license marketing efforts. Any additional information required should be requested in discovery. 15. Denied. 16. Admitted. 17. Denied. 2 18. Denied as a conclusion of law. Damages are not liquidated at this time and require discovery and probably an expert report, which is why each prayer for relief is stated in accordance with Pa.R.Civ.P. 1021(b). The amounts indicated reflect amounts and types of special damages known to date (e.g. the cost of the valueless license and the amounts wasted on the employee dedicated to the license marketing efforts. Any additional information required should be requested in discovery. If Amendment is deemed appropriate, leave to do so is requested. WHEREFORE, the Motion to Strike should be denied. III. Scandalous and Impertinent Matter 19. Denied. The Complaint speaks for itself, the characterization is not considered complete or accurate. 20. Admitted. 21. Admitted. 22. Denied in part. Paragraph 14 is relevant to the claim that Defendant materially misrepresented itself to Plaintiff and provides context for its actions, paragraph 62, was merely res gestae explanation for the timing of the summons and complaint. While paragraph 62 is not scandalous, it is arguably impertinent and Plaintiff has no objection to it being deemed stricken. Plaintiff requests that the formality of refilling and renumbering be waived as the paragraph could be redacted from any subsequent use. 23. See 22 above. 24. Admitted. 25. See 22 above. WHEREFORE, the Motion to Strike should be denied as to paragraph 14, but granted as to Paragraph 62, without necessity of refilling. 3 IV. Count I Demurrer - Fraudulent Inducement 26. Denied as stated. The Complaint speaks for itself. 27. Denied as a conclusion of law. 28. Admitted. 29. Denied as a conclusion of law. 30. Denied as a conclusion of law. WHEREFORE, the Motion to Dismiss should be denied; alternatively, leave should be granted to amend as to any deficiency deemed to exist. V. Count II Demurrer - Fraudulent Misrepresentation 31. Denied as stated. The Complaint speaks for itself. 32. Denied as a conclusion of law. 33. Admitted. 34. Denied as a conclusion of law. 35. Denied as a conclusion of law. WHEREFORE, the Motion to Dismiss should be denied; alternatively, leave should be granted to amend as to any deficiency deemed to exist. VI. Count III Demurrer - Negligent Misrepresentation 36. Denied as stated. The Complaint speaks for itself. 37. Denied as a conclusion of law. 38. Denied as a conclusion of law. 39. Denied as a conclusion of law. WHEREFORE, the Motion to Dismiss should be denied; alternatively, leave should be granted to amend as to any deficiency deemed to exist. 4 VII. Count III Demurrer - Breach of Contract 40. Denied as stated. The Complaint speaks for itself. 41. Denied as a conclusion of law. 42. Denied as a conclusion of law. 43. See Responses 1-8 above. 44. Denied as a conclusion of law. WHEREFORE, the Motion to Dismiss should be denied; alternatively, leave should be granted to amend as to any deficiency deemed to exist. VIII. Specificity 45. Admitted. 46. Denied as a conclusion of law. 47. Denied as a conclusion of law. 48. Denied as a conclusion of law. ' d. WHEREFORE, the Motion to Require a More Specific Plea g sho Respectfully sunitt Angfew'4A'. Barbin / Atty.(I.D. 443571 ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 506-4670 Counsel for Plaintiff DATED: July 27, 2004 5 Andrew W. Barbin, Esquire ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 506-4670 PERFECT SOLUTIONS, LTD. Plaintiff V. PROTOLOGICS FAMILY PRACTICE ASSOCIATES, LTD. Defendant Attorneys for Perfect Solutions, Inc. : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02-151YA Civil Term VERIFICATION I, Lee Cavanaugh of Perfect Solutions, Ltd., verify that the statements made in the foregoing RESPONSE TO PRELIMINARY OBJECTIONS are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unswom falsification to authorities. PERFECT SOLUTIONS, LTD. e Cavanaugh DATED: ? ? ?'7 /ZOO 7 Andrew W. Barbin, Esquire ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 506-4670 Attorneys for Perfect Solutions, Inc. PERFECT SOLUTIONS, LTD. . IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW PROTOLOGICS FAMILY PRACTICE ASSOCIATES, LTD. DOCKET NO. 02-1584 Civil Term Defendant CERTIFICATE OF SERVICE I, ANDREW W. BARBIN, do hereby certify that on the date indicated below, served a true and correct copy of the foregoing RESPONSE TO PRELIMINARY OBJECTIONS by having the foregoing document served by facsimile and United States first-class mail, postage prepaid addressed to the following: VIA FACSIMILE (717-236-8278) R. James Reynolds, Jr. Esquire Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 P.O. Box 9500 Harrisburg, Pa 17108-9500 DATED: July 27, 2004 N T- _ O *?t?il l?? ! ? ? t i 1"- Rl-? r Ir. 2 1v * 'ar ?) ? t ? 4 ? ' " ?? r ? ?? -?^ W f K "' 7J 01 -? 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) PERFECT SOLUTIONS, INC., (Plaintiff) VS. PROTOLOGICS CORPORATION, (Defendant) No. 02 Civil 1584 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary objections to complaint 2. Identify counsel who will argue case: (a) for plaintiff: Andrew W. Barbin, Esquire (717-506-4670) Address: 5020 Ritter Road, Suite 109 Mechanicsburg, Pennsylvania 17055 (b) for defendant: R. James Reynolds, Jr., Esquire (717-255-7604) Address: Thomas, Thomas, Armstrong & Nissen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg. Pennsylvania 17108-9500 3, I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 22, 2004 Dated: August 17, 2004 Attorne r Defendant .c- I - i c.r3 CJ 1 PERFECT SOLUTIONS, INC., Plaintiff V. PROTOLOGICS CORPORATION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Civil Action-Law NO. 02-1584 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE OLER, J. ORDER OF COURT AND NOW, this 29`" day of December, upon consideration of Defendant's preliminary objections to Plaintiff's complaint, and far the reasons stated in the accompanying opinion, it is ordered and decreed as follows: 1. Paragraph 62 of the complaint is stricken as impertinent; 2. Plaintiff's complaint will be deemed stricken without further order of court unless, within twenty days of the date of this order, Plaintiff files a supplement to the complaint in the form of an exhibit consisting of the written contract between the parties upon which Plaintiff's claims are based, or a verified statement indicating that no written contract is involved or that a written contract is involved but unavailable to Plaintiff; 3. The phrase "in excess of $130,000" as it occurs variously in the complaint is to be construed as "approximately $130,000"; and 4. Defendant's preliminary objections are otherwise denied. 0 1 \? 3 BY THE COURT, ° • ° ,K13Q Andrew W. Barbin, Esquire Andrew W. Barbin, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 Attorney for Plaintiff R. James Reynolds, Jr., Esquire Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 Attorney for Defendant PERFECT SOLUTIONS, INC., Plaintiff V. PROTOLOGICS CORPORATION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Civil Action-Law NO. 02-1584 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HOFFER, P.J., OLER and JUIDO, JJ. OPINION and ORDER OF COURT OLER, J., December 29, 2004. For disposition in this civil case-in which Perfect Solutions, Inc., has sued Protologics Corporation for damages arising out of a business relationship-are Defendant's preliminary objections to Plaintiff's complaint.I The preliminary objections being pursued by Defendant are, inter alia, in the nature of demurrers,2 of motions to strike for failure to conform to rule of court3 and inclusion of scandalous and impertinent matter,4 and a motion for a more specific complaint.5 The preliminary objections were argued before the court on September 22, 2004. For the reasons stated in this opinion, the preliminary objections will be sustained in part and denied in part. 1 Defendant's Preliminary Objections to Plaintiff's Complaint, filed July 15, 2004 (hereinafter Preliminary Objections). 2 See id. at paras. 26-44. 3 See id. at paras. 3-18. a See id. at paras. 19-25. 5 See id. at paras. 45-48. STATEMENT OF FACTS The facts of the case, as averred in Plaintiff's complaint and for purposes of the preliminary objections at issue, are to the following effect:6 Plaintiff Perfect Solutions, Inc., is a corporation organized under the laws of Pennsylvania, with its principal place of business in Mechanicsburg, Cumberland County, Pennsylvania. It is engaged in the business of providing healthcare management consultation services .8 Defendant Protologics Corporation is a corporation organized under the laws of Maryland, with offices in Baltimore, Maryland, and is engaged in the business of developing computer software.9 At some point in time, Plaintiff became aware of Defendant's ProtoMED software program, 10 and through, inter alios, Lawrence Walsh, an individual associated with Defendant,' 1 Defendant maintained that the ProtoMED program would create advantages for Plaintiff's clients. 12 In particular, Defendant's agents and/or employees represented to Plaintiff, in some detail, the performance, state of development and implementation, the availability of user manuals, as well as customer support associated with its ProtoMED software program. 13 With respect to several components of the ProtoMED software program-the Claims Management Data Manager and the Electronic Medical Records features-Defendant misrepresented them as unique, when in fact they were substantially similar to existing competitors' software. 14 Additionally, after 6 In reciting these allegations, the court is in no way expressing an opinion as to their accuracy. Plaintiff's Complaint at para. 1, filed June 15, 2004 (hereinafter Complaint). a Id. at para. 5. 9 Id. at paras. 2, 6. See id. at para. 7. " See id. at 8-9. 12 Id. at para. 8. 13 Id. at para. 9. With respect to user manuals and customer support, each are critical to medical consultants and their customers. Id. at para. 10. 14 See id. at paras. 11-12. 2 Defendant terminated development of its Electronic Medical Records feature, Defendant promised to integrate another company's product, which it failed to adequately integrate. 15 Defendant made further misrepresentations with respect to its fiscal solvency, maintaining that it was a solvent, ongoing concern, when in fact it had "lost money" over each of the previous five years, and was, in reality, "judgment proof." 16 As a result of the representations made to Plaintiff by Defendant, Plaintiff entered into a contract entitled "Independent Dealership Agreement."17 In the contract, Plaintiff purchased five licenses for the ProtoMED software from Defendant for a total of $55,000.00, which it then intended to resell. 18 In reliance on the representations made by Defendant with respect to the state of development and implementation of the ProtoMED software, as well as the promised availability of user manuals and customer support, Plaintiff tasked existing employees, and retained additional employees, to develop and implement a sales plan for the newly acquired ProtoMED software licenses.19 Pursuant to one of the covenants of the contract, Defendant was to assist in the marketing of the ProtoMED software licenses by providing certain marketing materials at no additional charge; however, Defendant in fact offered the marketing materials only for an additional fee. 20 With respect to the user manuals promised by Defendant, no user manuals were ever provided; this omission made Plaintiff's potential clients wary and unwilling to purchase the software.21 The lack of user manuals necessitated 15 Id. at para. 13. 16 Id. at para. 14. " Id. at para. 18. 18 See id. at paras. 18, 59. 19 Id. at paras. 19-20. 20 Id. at paras. 22-23. 21 Id. at para. 24. 3 greater dependence on telephone technical support-another contractual obligation-which was inadequate from the inception of the relationship and became progressively worse. 22 Additionally, the training Defendant was obligated to furnish under the contract was inadequately provided in that it simply identified the various menus/submenus of the software, and was not focused on simulated office scenarios.23 With respect to the sales support Defendant was obligated under the contract to provide, Defendant failed to provide timely answers to basic questions, which resulted in lost sales opportunities.24 Defendant also failed to provide updated software, and the installation instructions provided were incorrect, resulting in lost sales and wasted employee resources.2?' Despite the foregoing, Plaintiff was able to secure a potential client for the ProtoMED software. 26 However, the company (Oakwood Center) later terminated its agreement, due in part to protracted delay in the ProtoMED installation, which had been undertaken by Defendant because of problems associated with the software's installation.27 Additional reasons for the lost sale included Defendant's failure to provide timely telephone technical assistance-with some telephone calls going unanswered for months-as well as insufficient telephone technical support when rendered.28 During the period in question, Plaintiff regularly expressed its concerns to Defendant in a timely manner; however, in return, Plaintiff received only inadequate, sporadic and untimely responses. 29 22 Id. at paras. 33-34. 23 Id. at paras. 26-27. 24 Id. at para. 28. 25 Id. at para. 36. 26 Id. at para. 37. 27 Id. at paras. 37-42. 28 Id. at paras. 43-44; see also paras. 52-54. 29 1d. at para. 46. 4 Because of the foregoing, and after determining it could no longer ethically market the ProtoMED software, on October 24, 1001, Plaintiff requested a rescission of the contract from Defendant, and a refund of the licensing fees. 30 The request was denied on October 31, 2001, with no attempt to rectify the problems.31 On April 2, 2002, Plaintiff initiated the instant action by filing a praecipe for writ of summons.32 A complaint was filed on June 15, 2004.33 The complaint consists of four counts. 34 Count one is a claim for rescission based upon fraudulent inducement, 35 wherein Plaintiff" requests the court to order the Defendant to return the $55,000.00 Plaintiff paid to Defendant for the five licenses under the contract, 36 as well as to order the payment of $75,000.00 for damages incurred as a direct and proximate result of the fraudulent inducement. 37 Count two is a claim for fraud, in which Plaintiff avers Defendant made numerous intentional, material, and fraudulent misrepresentations, which were intended to, and did in fact, induce Plaintiff's reliance, to its detriment. 31 Plaintiff seeks "in excess of $130,000" in damages incurred as a. direct and proximate result of its reliance on Defendant's misrepresentations. 39 Count three is a claim for negligent misrepresentation, which contends that, if any of the various misrepresentations made by Defendant were not intentional, they were then made "Id. at para. 47. 31 Id. at para. 48. 32 Praecipe for a Writ of Summons, filed April 2, 2002. 33 Complaint at para. 61; see generally id. 34 See generally id. 35 Id. at paras. 63-66. 36 Id. at para. 65. 3' Id. at para. 66. Plaintiff also seeks costs, prejudgment interests and any other relief deemed justified by the court in each of the four counts. Id.; see also id. at paras. 70, 74, 78. 38 Id. at paras. 67-69. 39 Id. at para. 70. At oral argument on September 22, 2004, counsel for both parties agreed that the entire damage figure claimed in the suit should be construed as "approximately" $130,000.00. 5 negligently, and that, therefore, Plaintiff should be awarded the damages sought based upon its reasonable reliance thereupon. 40 Count four is a claim for breach of contract, in which Plaintiff alleges material breaches by Defendant of both express and implied obligations under the contract .41 Due to these breaches, Plaintiff was unable to market the licenses, and incurred additional consequential damages associated with the initial attempted marketing thereof, all of which were foreseeable.42 On July 15, 2004, Defendant filed eight preliminary objections.43 The first of these is entitled "Motion to Strike Pursuant to Pa. R.C.P. No. 1028(a)(2) for Failure to Conform to Rule of Court (Failure to Attach Written Contract)."aa Essentially, the Defendant asks the court to strike the Plaintiff's complaint for the Plaintiff's failure to attach the written contract, pursuant to Pennsylvania Rule of Civil Procedure 1019(i).45 Defendant's second preliminary objection is entitled "Motion to Strike Pursuant to Pa. R.C.P. No. 1028(a)(2) for Failure to Conform to Rule of Court (Lack of Specificity of Damages) .,,46 Defendant asks the court to strike the Plaintiff's complaint for Plaintiff's alleged failure to state with sufficient specificity damages characterized as special, pursuant to Pennsylvania Rule of Civil Procedure 1019(f), relating to the $75,000.00 consequential damages figure claimed by Plaintiff.47 40 Id. at paras. 71-74. 41 Id. at para. 76. 42 Id. at paras. 75-78. 43 See generally Preliminary Objections. 44 Id. at pg. 2. 45 Id. at paras. 3-8. 46 Id. at pg. 2. 47 Id. at paras. 9-18. 6 Defendant's third preliminary objection is entitled "Motion to Strike Scandalous and Impertinent Matter Pursuant to Pa, R.C.P. No. 1028(a)(2)."4$ Defendant asserts that the material included in paragraphs 14 and 62 of Plaintiff's complaint, respectively relating to the fiscal history and solvency of Defendant (para. 14) and unsuccessful settlement attempts (para. 62), is irrelevant, immaterial and inappropriate, and, therefore, should be stricken. 49 Defendant's fourth preliminary objection is entitled "Demurrer (Count I - Rescission - Fraudulent Inducement). "50 Defendant maintains that Plaintiff has failed to plead fraudulent inducement with sufficient specificity, as required by Pennsylvania Rule of Civil Procedure 1019(b), and, therefore, asks the court to dismiss Count I of Plaintiff's complaint for legal insufficiency pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4).51 Defendant's fifth preliminary objection is entitled "Demurrer (Count II - Fraud - Intentional Misrepresentation) .,,52 Defendant again claims Plaintiff has failed to plead with sufficient specificity, and, therefore, asks the court to dismiss Count II of Plaintiffs complaint.53 Defendant's sixth preliminary objection is entitled "Demurrer (Count III - Negligent Misrepresentation)."54 Defendant maintain: that Plaintiff has failed to plead the elements of negligent misrepresentation, and, therefore, asks the court to dismiss Count III of Plaintiff's complaint. 55 48 Id. at pg. 4. 49 Id. at paras. 19-25. 50 Id. at pg. 5. 51 Id. at paras. 26-30. 12 Id. at pg. 5. 13 Id. at paras. 31-35. 54 Id. at pg. 6. 55 Id. at paras. 36-39. 7 Defendant's seventh preliminary objection is entitled "Demurrer (Count IV - Breach of Contract)."56 Defendant maintains that Plaintiff has failed to plead the elements of a claim for breach of contract, and again refers to Plaintiff's failure to attach a copy of the contract to the complaint.57 Defendant therefore asks the court to dismiss Count IV for legal insufficiency pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4).58 Defendant's eighth preliminary objection is entitled "Insufficient Specificity of Complaint. ,59 Defendant maintains that the complaint lacks sufficient specificity to apprise the Defendant of the issues being; litigated and/or allow it to mount a defense to the allegations, and, therefore, asks the court to dismiss the complaint in its entirety. 60 In the alternative, Defendant asks the court to require the Plaintiff to file a second complaint which more specifically states its claims against the Defendant, pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(3).61 DISCUSSION Statement of the Law Preliminary Objections. In reviewing a preliminary objection in the nature of a demurrer, which challenges the legal sufficiency of a complaint, the court "must accept all material facts set forth in the complaint[,] as well as all the inferences reasonably deducible therefrom as true." Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619, 621 (1995). A preliminary objection in the form of a demurrer should be sustained only when, "on the facts averred, the law says with certainty that no recovery is possible." Id. at 489, 653 A.2d at 621. If any lingering doubt 56 Id. at pg. 7. 57 Id. at paras. 40-43. 58 Id. at para. 44. 59 Id. at pg. 8. 60 Id. at paras. 45-47. 61 Id. at para. 48. 8 remains as to whether to sustain the demurrer, "this doubt should be resolved in favor of [the plaintiff]." Presbyterian Medical Center v. Budd, 2003 PA Super. 323, ¶ 6, 832 A.2d 1066, 1070 (Pa. Super. Ct. 2003). Claims Based upon a Writing. Pennsylvania Rule of Civil Procedure 1019(i) provides, in relevant part: "When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing [to the pleading] ...." Pa. R.C.P. 1019(i). Special Damages. Pennsylvania Rule of Civil Procedure 1019(f) provides, in relevant part, that "items of special damage shall be specifically stated." Pa. R.C.P. 1019(f). Where a party has failed to plead special damages with sufficient specificity in an original complaint, it is within the discretion of the trial court to allow the party to amend the pleadings to conform to the rule. See, e.g., General State Authority v. Lawrie and Green, 24 Pa. Commw. 407, 412-13, 356 A.2d 851, 855 (Pa. Commw. Ct. 1976). Scandalous and Impertinent Material. A party may preliminarily object to the inclusion of scandalous or impertinent matters in pleadings. Pa. R.C.P. 1028(a)(2). In order for averments to be stricken as scandalous or impertinent, they must be "immaterial and inappropriate to the proof of the cause of action." Common Cause/Pennsylvania v. Commonwealth, '110 A.2d 108, 115 (Pa. Commw. Ct. 1998) (citing Dept. Env. Res. v. Peggs Rune Coal Co., 55 Pa. Commw. 312,423 A.2d 765 (Pa. Commw. Ct. 1980)). Fraudulent Inducement/Intentional Misrepresentation. In order to prove a claim of fraudulent inducement or intentional misrepresentation, the plaintiff must aver with particularity: 62 1) that a representation was made; 2) that it was material to the transaction; 3) that it was made falsely, with knowledge of its falsity or with recklessness regarding its truth or falsity; 4) that it was made with the intent of leading another to rely upon it; 5) that it was justifiably relied upon; and 6) that the resulting injury was proximately caused by the reliance. Bortz v. Noon, 556 Pa. 62 See Pa. R.C.P. 1019(b). 9 489, 499, 729 A.2d 555, 560 (1999) (citing Gibbs v. Ernst, 538 Pa. 193, 207, 647 A.2d 882, 889 (1994)). The requirements of this rule are met when the plaintiff pleads facts sufficient to permit the defendant to prepare a defense. Foster v. Peat Marwick Main & Co., 138 Pa. Commw. 147, 156, 587 A.2d 382, 387 (Pa. Commw. Ct. 1991). If the complaint, when read in its entirely, clearly reflects an alleged course of conduct which is fraudulent or misrepresentative, the defendant has been provided with sufficient information to allow him or her to mount a defense, and, as a consequence, the rule's requirements are met. See id. Negligent Misrepresentation. A claim of negligent misrepresentation requires the plaintiff to show: "(1) a misrepresentation of a material fact; (2) the representor must either know of the misrepresentation, must make the misrepresentation without knowledge as to its truth or falsity[,] or must make the representation under circumstances in which he ought -to have known of its falsity; (3) the representor must intend the representation to induce another to act on it; and (4) injury must result to the party acting in justifiable reliance on the misrepresentation." Gibbs v. Ernst, 538 Pa. 193, 210., 647 A.2d 882, 890 (1994) (citing Page Keaton, Prosser and Keaton on the Law of Torts § 107 (5th ed. 1984)). Thus, a claim for negligent misrepresentation is distinguishable from a claim for intentional misrepresentation in that the actor need not know of the falsity of his or her statements to be liable for negligent misrepresentation; however, the actor must have failed to make a reasonable investigation into their truth. Id. (citing Restatement (Second) of Torts § 552). Breach of Contract. "A cause of action for breach of contract [is] established by pleading (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract[,] and (3) resultant damages." CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999) (citing Gen. State. Auth. v. Coleman Cable & Wire Co., 27 Pa. Commw. 385, 365 A.2d 1347 (Pa. Commw. Ct. 1976). Every term of the contract need not be stated 10 in complete detail; however, every element must be pleaded. Id. (citing Snaith v. Snaith, 282 Pa. Super. 450, 422 A.2d 1379 (Pa. Super Ct. 1980)). Insufficient Specificity of Complaint. Pennsylvania Rule of Civil Procedure 1019(a) provides: "The material facts on which a cause of action ... is based shall be stated in a concise and summary form." Pa. R.C.P. 1019(a). In order to satisfy this requirement, the complaint must apprise the defendant of the nature and extent of the pleader's claim(s) so that the defendant has notice of what plaintiff intends to prove at trial and so that he or she may prepare to meet such proof with evidence of his or her own. See Weiss v. Equibank, 313 Pa. Super. 446, 453, 460 A.2d 271, 274-75 (Pa. Super. Ct. 1983). Pennsylvania trial courts are allowed a degree of discretion in the determination of the amount of detail required to satisfy the concise and summary requirement. See, e.g., Peke County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 134, 396 A.2d 677, 681 (Pa. Super. Ct. 1978) (citing United Refrigerator Co. v. Applebaum, 410 Pa. 210, 213, 189 A.2d 253, 255 (1963)). Application of Law to Facts Motion to Strike Pursuant to Pa. R.C.P. No. 1028(a)(2) for Failure to Conform to Rule of Court (Failure to Attach Written Contract). Plaintiff has conceded its failure to attach the contract at issue to its complaint;63 however, it maintains that it attached a copy of the contract to its response to Defendant's preliminary objections.64 A review of the document filed suggests that the attachment may have been inadvertently omitted or separated from the filing. Plaintiff further maintains that copies of the contract were exchanged between the parties during the period between the filing of the praecipe for writ of summons 63 See Response to Preliminary Objections, at para. 5, filed July 2 B, 2004. 64 See id. 11 and the filing of the complaint. 65 The plaintiff will be directed to file a copy of the contract as a supplement to the complaint. Motion to Strike Pursuant to Pa. R.C.P. No. 1028(a)(2) for Failure to Conform to Rule of Court (Lack of Specificity of Damages). At oral argument held before the court on September 22, 2004, the parties agreed to a construction of Plaintiff's complaint whereby Plaintiff's claim for damages was to be understood as limited to approximately $130,000.00. This figure was to represent both the actual cost of the licenses ($55,000.00), and the special damages associated with the attempted marketing thereof ($75,000.00). Further, detail as to the latter figure will be relegated to the discovery process. Motion to Strike Scandalous and Impertinent Matter Pursuant to Pa. R.C.P. No. 1028(a)(2). The representations alleged to have been made with respect to the fiscal character and solvency of the Defendant contained in paragraph fourteen of Plaintiff's complaint are, in the court's view, not properly characterized as scandalous or impertinent material, as they constitute information which a prudent contracting party might require before entering into an agreement. Furthermore, the information is directly relevant to the fraudulent inducement claim. Therefore, Defendant's motion to strike paragraph fourteen of Plaintiff's complaint will be denied. The averments contained in paragraph 62, relating to attempted settlement discussions, are properly characterized as impertinent, as Plaintiff has acknowledged.66 Therefore, this paragraph will be stricken. Demurrer (Count I - Rescission - Fraudulent Inducement), Demurrer (Count II - Fraud - Intentional Misrepresentation) and Demurrer (Count III - Negligent Misrepresentation). The complaint, when read as a whole, is sufficient to plead a course of conduct which was either intentionally or negligently fraudulent and/or 6s Id. 66 Plaintiff essentially conceded the impertinence of paragraph 62 of its complaint in paragraph 22 of its Response to Preliminary Objections, filed July 28, 2004. 12 misleading. 67 Therefore, Defendant has been sufficiently apprised of the nature of the claims against it to allow it to prepare a defense. 'Fee Foster, 138 Pa. Commw. at 156, 587 A.2d at 387. Under the particular facts of this case, the court is of the opinion the requirements of Pennsylvania Rule of Civil Procedure 1019(b) have been satisfied and that the grant a demurrer under Pennsylvania Rule of Civil Procedure 1028(a)(4) as to Counts I, II or III, would be improper. See id. Accordingly, the Defendant's demurrers relating to these counts will be denied. Demurrer (Count IV - Breach of Contract). In the court's view, the averments of Plaintiff's complaint have sufficiently set forth the elements of a claim for breach of contract. 68 The demurrer to Count IV of Plaintiff's complaint will therefore also be denied. Insufficient Specificity of Complaint. As noted supra, the court finds unpersuasive Defendant's objections as to the sufficiency of the complaint with respect to its specificity. The Defendant has, in fact, been adequately informed of the claims against it and has been provided with sufficient notice of those claims to allow it to prepare a proper defense. See Weiss, 313 Pa. Super. at 453, 460 A.2d at 275. Therefore, Defendant's preliminary objection based upon insufficient specificity of the complaint will be denied. Based upon the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this 29`x' day of December, upon consideration of Defendant's preliminary objections to Plaintiff's complaint, and for the reasons stated in the accompanying opinion, it is ordered and decreed as follows: 1. Paragraph 62 of the complaint is stricken as impertinent; 2. Plaintiff's complaint will be deemed stricken without further order of court unless, within twenty days of the date of this order, Plaintiff files a 67 See generally Complaint. 68 Id. 13 supplement to the complaint in the form of an exhibit consisting of the written contract between the parties upon which Plaintiff's claims are based, or a verified statement indicating that no written contract is involved or that a written contract is involved but unavailable to Plaintiff, 3. The phrase "in excess of $130,000" as it occurs variously in the complaint is to be construed as "approximately $130,000"; and 4. Defendant's preliminary objections are otherwise denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Andrew W. Barbin, Esquire Andrew W. Barbin, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 Attorney for Plaintiff R. James Reynolds, Jr., Esquire Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 Attorney for Defendant 14 0 Andrew W. Barbin, Esquire ANDREW W. BARBIN, P.C. 5020 RITTER ROAD, SUITE 109 MECHANICSBURG, PA 17055 717-506-4670 PERFECT SOLUTIONS, INC. Plaintiff V. PROTOLOGICS CORPORATION Defendant Attorneys for Perfect Solutions, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02-1584 Civil Term PLAINTIFF'S SUPPLEMENT TO THE COMPLAINT SUBMITTING THE CONTRACT PER ORDER OF COURT Plaintiff, Perfect Solutions, Inc., (Perfect Solutions), by and through undersigned counsel, files this Supplement to the Complaint submitting the Contract giving rise to the causes of action in the Complaint per the Order of Court dated December 30, 2004, an ,dPa.R.Civ.P. 1019(1). /Z- ,YhjKv jW'. Barbin Atty. 1.11#43571 ANDREW IV. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 506-4670 Counsel for Plaintiff DATED: January 3, 2005 ?fp +?? .h1tiCr?n.Lt,.? ?.rwla.nP•n? Protolodcs Corporatiou INDEPENDENT DEALERSDIP AG E M THIS INDEPENDENT DEALERSHIP AGREEMENT (the "Agreement") is made as of the 20th clay of _A124, 2001 in the State of Maryland by and between. Protologics Corporation, a Maryland corporation eTrotologics"), and P ect Soiuttnsa Pennsylvania corporation C'Dealership'). NOW, THEREFORE, in consideration of the mutual covenants, promises, agreements, representations, and warranties of Protoloocs and Dealership, each to the other made, and other good and valuable consideration, the receipt and sufficiency of which are hereby actmowledged, Protologirs axid Dealership covenant, promise, agree, represent, and warrant w follows: 1. 'T'ERMS OF ENGAGEMENT. 1.1 . Enexnent. Protologics hereby contracts with Dealership, and Dealership accepts such engagement, effective as of A lpr? 20!! , 2001 (the "Effective Date"}, to perform the delegated and agreed-upon tasks relating to sales, promotion, installation, and training of P'rotologies' ProtoM ED Products. DedersWp shall render such duties as are set forth in Section 1.3, subject to the terms and conditions of this Agro=ent. 1,2. Term. The tern of this Agreement shall be for One Year from the Effective Date. Dealership's engagement under this Agreement shall automatically renew for a period of One Year, until the Agreement is terminated upon the occurrence of one or more of the following specific events or conditions: (a) by mutual written consent of Protologics and Dealership; (b) upon breach of the Agreement by Protologics or Dealership; (c) upon discontinuance of the products listed in Section 1.3 below; or (d) upon dd ty (30) days' written notice of hither Protologics or Dealership. 1.3. Dealership Responsibilities. During Dealership's engagerent under this Agreement, Dealership shall be responsible for the following services: 1.3.1 Upon execution of this Agreement, Purchase five ProtoMED licenses from Protologics for the purpose of re-sale as described in the attached quotation. 1.3.2 Within sixty days from the Effective date, enroll up to five staff for ProtoMED training sessions to be conducted during it tbree-day seminar at Protologics headquarters, located in Baltimore, Maryland. 07Jp2701.doe146895.001 1.33 Witbin sixty days from the Effective date, purchw--, a minimum of one hundred current ProtoMED marketing pieces from Pmtologics at a price not to exceed cost plus shipping. 1.3.4 Within sixty days from the Effective date, implement a marketing program that is approved by the Protologics. 1.3.5 Promote Protologies products and enhance ProtoN ED name recognitioo via Dealership marketing, sales, oonversior4 installation, and training of Protologics medical management products. 1.3.6 License Registration Process: Dealership must register new ProtoMED sales within one week of sale by Dealership to new ProtoNSD licensee, Registration of eacA ProtoMk?D license requires an original copy of the Protologies license agreement that has been properly executed, with name and address of the licensee and contact name with phone number for the licensee. Upon full payment notification from Dedoship, Protologics will complete the registration process, enabling the software to be used without date restrictions. 1.3.7 Territory: the dealership may .compete anywhere in the United States of America with the exception of `protected territories" defined in the attached addendum. In return for the expansive territory, Dealership agrees that it is not entitled to any "protected" or "exclusive' territory. 1.3.8 Dealership has the right to refuse to sell or service an account, Upon refusal, Dealership must inform Protologics of the prospectlclient and reason for refusal of service. 1.3.9 Ownership of Material: Protologics' Proprietary Software Products and any copies thereof in whole or in part, whether said copies are made by Protologics or Dealership or anyone else and all copyright, patent and trade secrret and othor intellectual and proprietary rights therein are and remain the property of Protologics. Dealership, understands and agrees that aspects of all software developed by Protologics may contain Protologics' trade secret:;, which shall include but not be limited to the following: system design, program structure, system logic flow, file content, video and report formats, coding techniques and routines, file handling and special search techniques, video screen and data entry handling, and report and/or forms generation, and further that Protologics shall retain all ownership fights in any and all software developed by it during the terms of this Agreement. 1.3.10 License Fees: Dealership shall determine fees for the resale of ProtoMED licenses, conversion, installation, and training. Licensing fees shall be billed directly by Dealership and paid directly to Dealtership by licensee. 1.3.11 Support Fees: Protologics shall determine support faN for Help Desk support. Support fees shall be billed directly to Licensee by Protologics and paid directly.to Protologics by Licensee. Protologics shall provide software updates at no additional charge to curreirt licensees whose accounts are in -Z- 0?jp2703, doc/46895.001 good standing. Dealership also has the right to negotiate additional support fees with Licensees. Upon request of Dealership, Protologics agrees to bill Dealership's support fees concurrent with Protologics' support fees and to forward Dealership's portion of the fees to Dealership within 15 days of receipt of payment. Furthermore, in the event Dealership establishes financing or lease arrangements with a Licensee, Protologics agrees to bill such amounts concurrent with other charges billed hereunder (at Dealership's request, client would receive only one consolidated bill per month). 1.3.12 Citrix Licensing. All Citrix licensing is to be provided by Protologies at Citrix suggested retail prices. Citrix installation is to be provided by Protologics at the Protologics' standard consulting fee schedule. Dealership is not pe itted to use any other source of Citrb: licensing or installation under the terms of this Agreement. 1.4 Protologics Responsibilities: During Protologics' engagement under this Agreement, Protologics shall be responsible for the following services: 1.4.1 Provide Dealership with five valid licenses demen"bed an the attached quotation for the purpose of re-sale. 1.4.2 Provide Dealership with a three-day staff training serninar, 1.4.3 Provide for subsequent training of Dealership st0f. Fees for said training shall be established at the discretion of Pratelogics and disclosed to Dealership prior to scheduling said training. 1.4.4 Provide software support via Delp Desk service to licenses sold by Dealership. 1.4.5 License Fees: Protologics shall provide additional licenses for Dealership resale at fifty percent of the suggested retail pride. Current price list is attached as an addendum to this Agreement. 1.4.6 Price Protection: Protologics shall not increase our recommended retail prices by more than ten percent of current pri+:.e last in a given year. Protologics shall provide Dealership with sixty days advance notice to price increases. 1 .4.7 Support Fees: Protologics shall provide DIRECT BILLING to licensees for software support of ProtoMED licensees sold by Dealersbip. 1.4.8 Consulting Services: Protologics shall provide fee based consulting services upon request of Dealership to either licensee or Dealership. Fees shall be charged at the standard Protologics consulting razes, attached as an addendum to this Agreement. 2. 1NDEPEN -= DEALERSHIP STATUS. 2.1. 3ta s. It is understood and agreed that Dealer ship is an independent contractor and is not an employee, agent, partner or representative of Protologics, -3- Q7jp27Q3.d*d46895.Oa1 and shall not hold itself out to the public as an employee, agent, partner or representative of Protologics. As such, Dealership is responsible, vfhere necessary, to secure, at its sole cost, workers' compensation insurance, disability benefits insurance, and any other insurance as may be required by law 95or Dealership's employees. 2.2. No Benefits. Protologics will not provide, nor will it be responsible to pay for, benefits for Dealership or any of Dealership's employees. Any such, benefits, if provided by Dealership for any, of its employees, including, but not limited to, health insurance, paid vacation, paid holidays, sick leave or disability insurance coverage of wltatever nature, shall be secured and paid for by Dealership. 7 2.3. Other Business/Exclusivity. Dealership may engage in any, business it may determine, and is not required to devote all its energies exclusively for the benefit of Protologics. However, Dealership agrees that, during the term of the Agreement, Dealership will not market, Boll, or lease with a direct competitor to Protologim 3. TAX D[3TIES AND RESPONSIBILM S. Dealership is responsible for the payment of all required paytoll taxes, whether federal, state or local in nature, including, but not limited to, income taxes, social security taxes, federal unemployment compensation taxes, and any other fees, charges, :licenses, or other payments required by law. 4. INDEMNIFICATION. If a court or administrative agency shELU fund that any employee of Dealership is an employee of Protologics, Dealership shall indemnify and hold Protologics harmless and pay all fines, damages, assessments, and attorneys' fees of Protologics, if Protologics is responsible to make any of these payments, or to provide any idated benefits. 51 CONFIDENTIALITY. 5.1 The Dealership acknowledges that in connection with the performance of his duties hereunder, the Protologics will be disclosing proprietary information to the Dealership, including commercially valuable technical and business information ("Confidential Information!). Confidential Information shall include information or materials that the Dealership acquires knowledge of or access to as a result of the Dealership's relationship with the Protologics. The Dealership acknowledges that the Protologics' business is extremely competitive, dependent in part upon the maintenance of secrecy, and that any disclosure of Confidential Information to any third party will result in serious harm to the Pmtologics. 5.2 The Dealership covenants and agrees that the Confidentita Information will be used by the Dealership only in connection with consulting activities hereunder, and will not be used in any way that is detrimental to the Protologics. -4- )7jp27Q3.doa/4699U01 5.3 The Dealership covei=ts and agrees not to disclose, directly or indirectly, the Confidential Information to any third person or entity, other than representatives or agents of the Protologics or as expressly directed in writing by the Protologics. The Dealership will treat all such information as confidential and proprietary property of the Protologics. y 5.4 "Confidential Information" does not include information which (a) was known to the receiving party at the time it was disclosed, other dm by previous disclosure by the disclosing party, as evidenced by written records at the time of disclosure, (b) is at the time of disclosure or later becomes publiely known under circumstances involving no breach of this Agreement; (c) is lawfully and in good faith made available to the receiving party by a third party who did not derive it frorA the disclosing party and who imposes no obligation of confidence on the receiving party; or (d) is developed by the receiving party independent of any disclosure by the disclosing party, as evidenced by written records. 5.5 Upon tennitation of the Agreement, the Dealership will promptly return to the Protologics all materials containing Confidential Information as well as data, records, reports, and other property, furnished by Protologics to the Dealership in connection with services rendered hereunder, together with all copies of any of the foregoing. The Dealership shall continue to be bound by the terms of the confidentiality provisions contained in this Section, 6 for a period of three (3) years after the termination of the Agreement 6. MISCELLANEOUS. 6.1. Assimmment. Protologics is expressly permitted to assign all of its rights and obligations under this Agreement to one or more direct or indirect subsidiaries or affiliates. Protologics shall give Dealership sixty days notice before closure date of such assignment. Neither this Agreement nor any part hereof or interest herein shall be assigned by DealexsbJp without the prior written consent of Protologics. 6.2. Construction. The validity, legality, and construction of this Agreement or of any of its provisions shall be detennined under the laws of the State of Maryland, it being agreed that this Agreement is made in the State of Maryland. 6.3. Sever, if any provision contained in this Agree=ent cannot be enforced to its fullest extent, then such provision shall be enforced to the maximum extent permitted by law, and the parties hereto consent and agree that such provision way be judicially modified accordingly in any proceeding brought to enforce such provision. The invalidity, illegality, or inability to enforce any provision of this Agreement shall not affect or limit the validity and enforceability of any other provision hereof. -5- 'jp2703.docJA6$45.001 7. NoTi . All notices and communications hereunder shad be in writing and shall be deemed given when sent postage prepaid by registered or cedified mail, retard receipt requested, by hand delivery with a signe&rcturned copy, or by delivery of a nationally recognized overnight delivery service, and addressed w follows: if intended for Protologics: Protologics Corporation 1517 Reisterstown Road, Suite 202 Baltimore, Maryland 21208 Attn: F. Richard Pannoni, President with a copy to: Shapiro Shen & Guinot, P.A. 2000 Charles center South 36 South Charles Street Baltimore, Maryland 21,201 Attn: Lonnie M. Ritzer, Esquire Ifintezxded for Dealership: Perfect Solutions, Inc. 601 East Simpson Street Mechanicsburg, P.A, 17055 Attn: Lee E. Cavanaugh, President with a copy to: Fishman & Morganthal 95 Alexander Spring Road, Suite 3 Carlisle, FA 17013 Attn: Steven J. Fishman, Esquire If; however, a party furnishes another patty with notice of a change of address, as provided in this Section, then all notices and communications thereafter shall be addressed its provided in such notice. 9. ENTIRE AgREEMEN , This Agreement contains the entire understanding between Protologics and Dealership with respect to matters set forth herein and supersedes all other oral and written agreements or understandings between them with respect to matters set forth herein: No modification or addition hereto or waiver or cancellation of any provision shall be valid except as provided in a writing signed by the patty against whom such modification, addition, waiver, or cancellation is being enforced. -6- 07jp2703 d00/46695-001 IN WITNESS WHEREOF, the parties hereto have executed tlds LAdepend?nt Dealership Agreement as of the day and year first above written. n f A WITNESS: r '! 7lfj A'? ,Oy. (SEAL) ce R_ Walsh, CEO 94I 01 Protologics Corporation SEAL)-- °t ° t Cavaz?augh, PresFa nt Perfect Solutions, Inc. -7. 07jp2703.do6t46995.001 Protolo 'cs Corporation INDEPENDF,NT DEALE RIP A__BEX1VI:ENT ADDENDUM Protected Territory The following geographic regions are reserved as "protected territories" for the purposes of this Agreement. Dealership is restricted from promotion and sales of Protologia: products within the following States: Maryland, Virginia, Di*rict of Columbia, Delaware, North Carolina, South Carolina, and Georgia. Dealership may sell Protologies products to a prospect within the "protected tenitories" defined hmvlrj, provided that Dealership receives an Eoaail exemption for said prospect from Protologics. Protologics shall provide an Finail response to any exemption request within Party-eight hours. Approval will be granted if prospect has not been contacted by Protologia; within the past twelve months. Protologics Corporation -S- 07jp2703.dod4b895.001 INDEPENDENT DEALERSHIP AGREEMENT ADDENDUM ProtoMED Price List 04/19/01 Practice Manager Base Price_ Additional Ontiane Collections Resource Scheduler Claims Manager Additional Location (1,000 per) Additional Providers (1,500 per) Managed Care Sliding Fee Support (used for government clinics) Grant Fund Support (used for government clinics) ProtoMAILER Patient Statements Laser Mailer $5,995 $2,995 $3,995 $2,995 $1,000 $1,500 $2.995 $3,995 $1,000 $2,995 Gam. y q 12.0 (a} OAP2703-doc/44895.001 Protolo es Corporation 1ND + PENDENT DEALERSHIP &QRUMIF T AAAENDUM Pratologics Consulting Rates 04/19/01 Systems Analysis $180 /hr Practice Analysis $1801hr Network Configuration $150 /hr ProtoMED QnsiteTralaing $125 /hr (custom training at client site) ProtoMED Group Training $150 per person - 4 hour seminar at ProtolojAcs Training Center Programming $ $5 /hr Disk Preparation $ 50 per disk M7eage Expense SAO per mile Ttravel/Lod k a U gin8 reiza>auxsement of all expenses a c1 Z d?O 07JA2?03.dW46895.001 -10- ftotolo i CorQoration INDEPENDENT DEALERSffiP AGREEMNT ADDENDUM ParotoMED Dealership License Quotation. 04/19/01 Prepared For Perfect Solutions, Inc. 601 East Simpson Street Mechanicsburg, PA 17055 Phone S MMARY Scone?Work Protologics shall furnish the ProtoMED system as specified in the following quote. Training and one year of software support is also included. Licenses are for Five Practices, five Software SubTotal ............................................. $11,000 Five License Dealer Fee: $55,000 Quotation# 911330A Quote Date: 03/08/2000 Valid For Thirty Days Prepared By: $G Contact: Lee Cavenaugh q I z a10) s -11- 07jp2703.dW46$95.001 a ProtoMAILER Laser Mailers rotolo 'cs Co ration I1yDEPENDRNT DEALE> SffiP AGREENItR]. T ADUkNDUM ProtoMED Dealership Meuse Quotation 04/19/01 8008LRE DETAIL Prepared For: Perfect Solutions, Inc. 601 Cast Simpson Street Mechanicsbwrg, PA 17055 Q FrotoMOD Practice M nailer {/?4.0 (Basel o Patient Module o Charge Processor o Payment Processor o Electronic Claims o Full laser Forms Support o Appointments Scheduler o Automatic Recall and Custom Letters o Practice Management Reports o FL111 mouse/keyboard support o Multiple Cardholder Support o Dynamic aging o CPT Codes preloaded o IC09 Codes preloaded o Oistom Demographics o G:)mprehensive audit trail reporting o Non-patient Responsible Party Support Practice Manager Base Price: $5,995 Additional Options Collections Resource Scheduler Claims Manager Additional location (2 Q 1,000 per) Additional Providers (3 @ 1,500 per) Managed Care Sliding Fee Support (used for government clinics) Grant Fund Support (used for government clinics) ProtoMAILER Patient Statements Laser Mailer SubTotal Discount (special discount would go here) $2,995 $3,995 $2,995 $2,000 $4,500 $2,995 $3,995 $1,000 $2,995 $33,465 -$22,465 -12- 07jp2703.doa14G$95.001 Software Investment For Each Initial License .......................................................... ... $11,000 TOTAL Dealership Fee: $55,000 ProtoLoij =oration INDEPENDENT SHIP AGRE?ME:U_ ADDENDUM ParotoACM Dealership License Quotation 04/19/01 Prepared For Perrect Solutions, Inc. 601 East Simpson Street Mechanicsburg, PA 17055 T RMS TRAINING: o Includes three training sessions at Protologics Training Center (must bek used within 60 days of sake). o Additional seminars are conducted in our training facility throughout the year SUPPORT: o Includes one year of software support. SOFTWARE SUPPORT: o After first year software' support is $125 per month per license billed directly by protologics o Software support includes UNLIMITED UPDATES directly from our WEB. TERMS: 0 60% due with contract 0 50% due after staff training ECS; Ct $27,500 $27,500 -13- 07jp2703.dW4689$.Q01 No startup fee required for each Practice for WEBMD Possible fees for local clearinghouses ProtolodA Corporation I1EPENDEDEALE1EtS GREENJiNT 'ADDENDUM ProtoME+ D Dealership License Quotation t 04/19/01 ProtoNI&D References Prepared For: Perfect Solutions, inc. 601 East Simpson Street Mechanicsburg, PA 17055 Elite Billing Services Baltimore 410-580-1502 Contact: Tina C/R Billing Services, LLC West liver 410-721-6155 contact: Lyle Crippen Bayview Medical Center - Johns Hopkins Baltimore 410-550-2483 contact: Bonnie Cross Keys Pediatrics Towson 410-323-1144 Contact: Dawn Asif S. Qadri, M.D., P.A. College Park 301/474-3232 oontact: support perspective +5 years or. Cutts - Web Support User Washington 202-822-0838 contact: Susan (office mgr) Mahoney, Touser, Oser Chevy Chase 301-693-2698 Contact: Settle (use of Internet Claims) Owings Mills Medical Owings Mills 410-3588604 Contact: Jean (from Scott Rifkin - familiar with large systems) Barry J. Cohen, M.D., P.C. Chevy Chase 301/656-6398 Dr. Christopher Price Baltimore 410-2357603 Contact: Sherry MARTIN W. DUKES, JR., M.D., P.C. Washington 2021429-9317 contact: Mrs. Dukes (office mgr) Quotation# 9113 Quote Date: 03/08/ Valid For Thirty Prepared By: -14- 07jp2743.d0a46895Z1 I Dr. Yacoub Contact: Robin Dr. Hal !Contact: Tracy Robert Cohen, M.D. Contact. Mary Ruth M. Burke (Consultant) contact Ruth Burke Towson 410-321-7454 Towson 410-321-1313 Woodbridge 703/670-8614 Baltimore 410-679-3020 J 1 i Andrew W. Barbin, Esquire ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 506-4670 Attorneys for Perfect Solutions, Inc. PERFECT SOLUTIONS, LTD. . IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW PROTOLOGICS FAMILY PRACTICE ASSOCIATES, LTD. DOCKET NO. 02-1584 Civil Term Defendant CERTIFICATE OF SERVICE I, ANDREW W. BARBIN, do hereby certify that on the date indicated below, served a true and correct copy of the foregoing SUPPLEMENT TO THE COMPLAINT PER ORDER OF DECEMBER 30, 2004 by having the foregoing document served by facsimile and United States first-class mail, postage prepaid addressed to the following: VIA FACSIMILE (717-236-8278) R. James Reynolds, Jr. Esquire Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 P.O. Box 9500 Harrisburg, Pa 17108-9500 v W. Barbin 1L__ DATED: January 3, 2005 hJ Q r;•f't r 7 . 17 -Ai IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PERFECT SOLUTIONS, INC., Plaintiff V. PROTOLOGICS CORPORATION, Defendant No. 02 - 1584 - Civil Term CIVIL AC-PION - LAW NOTICE TO PLEAD TO: Perfect Solutions, Inc., Plaintiff c/o Andrew W. Barbin, Esquire Andrew W. Barbin, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, Pennsylvania 17055 Attorney for Plaintiff YOU ARE HEREBY NOTIFI ED to plead to the enclosed NEW MATTER AND COUNTERCLAIM OF DEFENDANT PROTOLOGICS CORPORATION within twenty (20) days from service hereof, or a default judgment may be entered against you. Date: January 21, 2005 R. J es ReynolldJ Jr. 61 Attorney I.D. #10252 Email - jreynolds?a ttanlaw.com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 (717) 255-7604 / FAX (717) 236-8278 Attorney for Defendant/Counterclaimant Protologics Corporation R. James Reynolds, Jr., Esquire PA Supreme Court I.D. No. 10252 Email: Irevnolds(a-?ttanlaw. com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, Pennsylvania 17108-9500 Telephone: (717) 255-7604 FAX: (717) 236-8278 Attorney for Defendant/Counterclaimant Protologics Corporation IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PERFECT SOLUTIONS, INC., Plaintiff No. 02 - 1584 - Civil Term V. CIVIL ACTION - LAW PROTOLOGICS CORPORATION, Defendant DEFENDANT'S ANSWER TO COMPLAINT WITH NEW MATTER AND COUNTERCLAIM AND NOW, comes Defendant Protologics Corporation ("Defendant"), by its undersigned attorney, and files this Answer to the Complaint of Plaintiff Perfect Solutions, Inc. ("Plaintiff'), with New Matter and Counterclaim. ANSWER 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore they are denied. 2. Admitted. 3. Admitted in part and denied in part. Although it is admitted that certain events relevant to this action occurred in Cumberland County, Pennsylvania, it is denied that all relevant events occurred there. 4. Denied. The averments of this paragraph state a conclusion of law to which no response is required. 5. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore they are denied. 6. Admitted in part and denied in part. It is admitted that Defendant develops and sells medical management software, including a product known as ProtoMED ("ProtoMED" or "ProtoMED product'). To the extent the averments of this paragraph are inconsistent with the foregoing, they are denied. Further, the remaining averments of this paragraph are denied since prior to entering into an Independent Dealership Agreement ("Agreement") with Plaintiff on April 20, 2001, Defendant had sold its ProtoMED product in Pennsylvania. 7. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore they are denied. 8. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore they are denied. By way of further answer, any representations made by Defendant to Plaintiff regarding its ProtoMED product were true. 2- 9. Admitted in part and denied in part. It is admitted that Defendant, through Lawrence Walsh and others, provided certain information to Plaintiff regarding its ProtoMED product and that all representations were true. To the extent the averments of this paragraph are inconsistent with the foregoing, they are denied. 10. Denied. The averments of this paragraph state a conclusion of law to which no response is required. 11. Denied. It is denied that Defendant made any misrepresentations regarding its ProtoMED claims manager. By way of further answer, the ProtoMED claims manager was a "first in market" innovation and unique to the industry at the time the parties entered into the Agreement. 12. Denied. It is specifically denied that Defendant misrepresented its electronic medical records feature in any way. Any representations made by Defendant were true. 13. Denied. Any representations made by Defendant with respect to its electronic medical records product (known as ProtoCHART) were true. By way of further answer, the ProtoCHART product is not covered by the Agreement. 14. Denied. It is specifically denied that Defendant made any misrepresentations with respect to the nature of the company. The remaining averments of this paragraph are denied since they state conclusions of law to which no response is required. 15. Denied. It is specifically denied that Defendant misrepresented, intentionally or negligently, its ProtoMED product or any aspect thereof. Any representations made by Defendant regarding its ProtoMED product were true. 16. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant 3- made any misrepresentations regarding its ProtoMED product or any aspect thereof. Any representations made by Defendant were true. 17. Denied. The averments of this paragraph state a conclusion of law to which no response is required. Byway of further answer, it is specifically denied that Defendant made any misrepresentations regarding its ProtoMED product or any aspect thereof. Any representations made by Defendant were true. 18. Admitted in part and denied in part. It is admitted that Plaintiff and Defendant entered into the Agreement and that pursuant thereto, Plaintiff purchased from Defendant five licenses for the ProtoMED product in the total amount of $55,000 ($11,000 each). To the extent the averments of this paragraph are inconsistent with the foregoing, they are denied. By way of further answer, it is specifically denied that Defendant made any misrepresentations regarding its ProtoMED product or any aspect thereof. Any representations made by Defendant were true. 19. Denied. It is specifically denied that Defendant made any misrepresentations to Plaintiff regarding its ProtoMED product or any aspect thereof. Any representations made by Defendant were true. 20. Denied. It is specifically denied that Defendant made any misrepresentations to Plaintiff regarding its ProtoMED product or any aspect thereof. Any representations made by Defendant were true. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of this paragraph and therefore they are denied. a- 21. Denied. Pursuant to paragraph 1.3.4 of the Agreement, Plaintiff was required to implement, within sixty days from the effective date of the Agreement, a marketing program approved by Defendant. Plaintiff failed to do so in breach of the Agreement. 22. Denied. It is specifically denied that Defendant failed to provide marketing materials. To the contrary, Defendant provided marketing materials to Plaintiff, but Plaintiff refused to pay for them in breach of the Agreement. 23. Denied. The averments of this paragraph are denied since they state a conclusion of law to which no response is required. By way of further answer, paragraph 1.3.3 of the Agreement requires Plaintiff, within sixty days from the effective date of the Agreement, to purchase a minimum of 100 current ProtoMED marketing pieces from Defendant. Plaintiff refused to pay for the marketing mat&als in breach of the Agreement. 24. Denied. It is specifically denied that Defendant had an obligation to provide a user manual under the Agreement or that Defendant promised to provide one. Nevertheless, Plaintiff did have access to a printed user manual and Defendant's support team was available to, and did, address customer questions. By way of further answer, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of this paragraph and therefore they are denied. 25. Denied. The averments of this paragraph are denied since the Agreement, being in writing, speaks for itself. By way of further answer, Defendant provided training to Plaintiff, but it is specifically denied that the training was inadequate. 5- 26. Denied. To the extent the averments of this paragraph imply that the training was inadequate, they are denied. Byway of further answer, Defendant provided adequate training and met its obligations under the Agreement. 27. Denied. To the extent the averments of this paragraph imply that the training was inadequate, they are denied. By way of further answer, Defendant provided adequate training and met its obligations under the Agreement. 28. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, Defendant provided adequate sales support and met its obligations under the Agreement. 29. Denied. It is specifically denied that Defendant provided inadequate technical support. To the contrary, Defendant met its obligations under the Agreement. 30. Denied. It is specifically denied that Plaintiff provided "substantial" expert feedback and suggestions regarding potential users' problems. It is also denied that Defendant ignored and refused to address any problems which Plaintiff brought to Defendant's attention. To the contrary, Defendant met all of its obligations under the Agreement. 31. Denied. It is specifically denied that Defendant agreed to provide a user manual. However, Plaintiff did have access to a printed manual and Defendant provided technical support by telephone from its support center. Defendant met all of its obligations under the Agreement. 32. Denied. The averments of this paragraph state a conclusion of law to which no response is required. Byway of further answer, it is specifically denied that Defendant failed to provide the support required under the Agreement. Defendant met all of its 6- obligations under the Agreement. Further, customers have access to web-based support and FAQ support. 33. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant failed to provide adequate phone technical support. To the contrary, it provided phone support pursuant to the Agreement and met all of its obligations under the Agreement. 34. Denied. To the contrary, the phone technical support provided by Defendant was adequate throughout the period of the Agreement and was in conformity with the Agreement. 35. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, the Loudon Medical Group was not a "protected lead" as set forth in the Agreement and the Protected Territory Addendum thereto. 36. Denied. It is specifically denied that Defendant provided inadequate and incorrect installation instructions to Plaintiff and that Defendant failed to timely provide copies of updates and new versions thereof. To the contrary, Defendant provided adequate and correct installation instructions, including training, along with timely updates. Defendant met all of its obligations under the Agreement. 37. Denied. It is specifically denied that Defendant hindered or interfered with Plaintiff. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment that Plaintiff secured a "sale" to Oakwood Center and therefore those averments are denied. -7- 38. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant made any misrepresentations regarding the ProtoMED product or any aspect thereof to Plaintiff and/or to Oakwood Center. Any representations made by Defendant were true. 39. Admitted in part and denied in part. It is admitted that Defendant reinstalled the product after it was installed improperly by Plaintiff. To the extent the averments of this paragraph are inconsistent with the foregoing, they are denied. 40. Denied. It is specifically denied that any delay in the installation of the product was caused by Defendant. Rather, any delay was caused by Plaintiff, who was responsible under the Agreement for the installation. 41. Denied. It is specifically denied that any delay in the installation of the product was caused by Defendant. Rather, any delay was caused by Plaintiff who was responsible under the Agreement for the installation. 42. Denied. It is specifically denied that Defendant intentionally withheld any information. It is further denied that any actions or inactions of Defendant resulted in delays with respect to the installation at the Oakwood Center. Rather, any delay was caused by Plaintiff who was responsible under the Agreement for the installation. 43. Denied. The averments of this paragraph state a conclusion of law to which no response is required. Byway of further answer, it is specifically denied that Defendant's phone technical support was inadequate. Defendant met all of its obligations under the Agreement. 44. Denied. It is specifically denied that Defendant made any misrepresentations regarding the ProtoMED product or any aspect thereof, or that it breached the Agreement. 8- After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of this paragraph. 45. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore they are denied. By way of further answer, it is specifically denied that any difficulties involving Oakwood Center resulted from the actions or inactions of Defendant. 46. Denied. It is specifically denied that Plaintiff communicated its concerns in a timely manner to Defendant and that it only received untimely, inadequate, sporadic partial responses from Defendant. To the contrary, Defendant responded to all communications in a timely and proper manner and met all of its obligations under the Agreement. 47. Admitted in part and denied in part. It is admitted that on October 26, 2001, Lee Cavanaugh, president of Plaintiff, sent an email to Lawrence Walsh, president of Defendant, in which he made certain proposals regarding the relationship between Plaintiff and Defendant. The remaining averments of this paragraph are denied since the email, being in writing, speaks for itself. 48. Admitted in part and denied in part. It is admitted that on October 31, 2001, Mr. Walsh sent an email to Mr. Cavanaugh regarding the October 26, 2001 proposal. The remaining averments of this paragraph are denied since the email, being in writing, speaks for itself. By way of further answer, Mr. Walsh responded to Mr. Cavanaugh's proposal by letter dated November 26, 2001. That letter, being in writing, speaks for itself. -9- 49. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore they are denied. 50. Denied. At all times Defendant properly performed and met its obligations under the Agreement. 51. Denied. It is specifically denied that Defendant made any misrepresentations regarding the credentialing process or that the credentialing process was in any way delayed by actions or omissions of Defendant. Any representations made by Defendant were true. 52. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment regarding the date credentialing for Oakwood occurred. Byway of further answer, to the extent the averments of this paragraph imply that any "delay" in the credentialing process was caused by Defendant, they are specifically denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments regarding any lost marketing opportunities for Plaintiff and therefore they are denied. 53. Denied. At all times, Defendant provided the support, if any, required under the Agreement. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of this paragraph and therefore they are denied. 54. Denied. The averments of this paragraph state a conclusion of law to which no response is required. Byway of further answer, it is specifically denied that Defendant made any misrepresentations and that it provided inadequate support or that any alleged io- defects in the system or delays in implementation were caused by the acts or omissions of Defendant. Any representations made by Defendant were true. Further, Defendant met all of its obligations under the Agreement. 55. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant made any misrepresentations regarding its ProtoMED product or any aspect thereof. Any representations made by Defendant were true. 56. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that the product was deficient or that Defendant failed to provide support pursuant to the Agreement. At all times, Defendant met its obligations under the Agreement. 57. Denied. The averments of this paragraph state a conclusion of law to which no response is required. 58. Denied. The averments of this paragraph state a conclusion of law to which no response is required. 59. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant made any misrepresentations, was in breach of the Agreement or that Plaintiff is entitled to recover damages from Defendant. 60. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant made any misrepresentations, was in breach of the Agreement or that Plaintiff is entitled to recover any damages from Defendant. After reasonable investigation, Defendant is 11- without knowledge or information sufficient to form a belief as to the truth of the averments regarding damages allegedly incurred by Plaintiff and therefore they are denied. However, it is specifically denied that Plaintiff incurred any damages as the result of any actions or inactions of Defendant. 61. Admitted in part and denied in part. It is admitted that this action was commenced on April 2, 2002 by the filing by Plaintiff of a Praecipe for Writ of Summons which was served upon Defendant. To the extent the averments of this paragraph are inconsistent with the foregoing, they are denied. 62. This paragraph of the Complaint was stricken as impertinent by Order of Court dated December 29, 2004. Count I - RESCISSION - FRAUDULENT INDUCEMENT 63. The answers to paragraphs 1 through 62 inclusive hereof are incorporated by reference herein as if set forth in their entirety. 64. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant fraudulently induced Plaintiff to enter into the Agreement. 65. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant fraudulently induced Plaintiff to enter into the Agreement and that Plaintiff is entitled to the recission of the contract and damages in the amount of $55,000. 66. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant fraudulently induced Plaintiff to enter into the Agreement and that Plaintiff is entitled to any 12- damages, including $75,000 of "additional damages". After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment that Plaintiff incurred additional damages of $75,000 and therefore it is denied. However, it is specifically denied that any damages allegedly incurred by Plaintiff resulted from the actions or omissions of Defendant. WHEREFORE, Defendant Protologics Corporation demands that judgment be entered in its favor and against Plaintiff Perfect Solutions, Inc. with costs assessed to Plaintiff. Count II - FRAUD - INTENTIONAL MISREPRESENTATION 67. The answers to paragraphs 1 through 66 hereof are incorporated by reference herein as if set forth in their entirety. 68. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant made any misrepresentations, including without limitation material misrepresentations, to Plaintiff and that any actions or omissions of Defendant made it impossible for Plaintiff to market the product or recoup its investment in the product. Any representations made by Defendant regarding its ProtoMED product and any aspect thereof were true. 69. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant made any misrepresentations, including without limitation material, intangible and fraudulent misrepresentations, to Plaintiff. Any representations made by Defendant regarding its ProtoMED product and any aspect thereof were true. -13- 70. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant made any misrepresentations to Plaintiff. Any representations made by Defendant regarding its ProtoMED product and any aspect thereof were true. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph regarding damages allegedly suffered by Plaintiff and therefore they are denied. However, it is specifically denied that any damages allegedly incurred by Plaintiff resulted from the actions or omissions of Defendant. WHEREFORE, Defendant Protologics Corporation demands that judgment be entered in its favor and against Plaintiff Perfect Solutions, Inc. with costs assessed to Plaintiff. Count III - NEGLIGENT MISREPRESENTATION 71. The answers to paragraphs 1 through 70 inclusive hereof are incorporated by reference herein as if set forth in their entirety. 72. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant made any misrepresentations, including without limitation material misrepresentations, to Plaintiff and that any actions or omissions of Defendant made it impossible for Plaintiff to market the product or recoup its investment in the product. Any representations made by Defendant regarding its ProtoMED product and any aspect thereof were true. 73. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant made any misrepresentation, including negligent misrepresentations, to Plaintiff and that ia- Plaintiff suffered damages as a result thereof. Any representations made by Defendant regarding its ProtoMED product and any aspect thereof were true. 74. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant made any misrepresentations to Plaintiff. Any representations made by Defendant regarding its ProtoMED product and any aspect thereof were true. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph regarding damages allegedly suffered by Plaintiff and therefore they are denied. However, it is specifically denied that any damages allegedly incurred by Plaintiff resulted from any actions or omissions of Defendant. WHEREFORE, Defendant Protologics Corporation demands that judgment be entered in its favor and against Plaintiff Perfect Solutions, Inc. with costs assessed to Plaintiff. Count IV - BREACH OF CONTRACT 75. The answers to paragraphs 1 through 74 inclusive hereof are incorporated herein by reference as if set forth in their entirety. 76. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant breached the Agreement. To the contrary, Defendant properly performed and met all of its obligations under the Agreement. 77. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant breached the Agreement or that any actions or omissions of Defendant resulted in -15- damages to Plaintiff. Further, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph regarding "loss of value of the licenses, substantial unproductive expense and lost employee time" and therefore they are denied. However, it is specifically denied that any damages allegedly incurred by Plaintiff resulted from any actions or omissions of Defendant. 78. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant breached the Agreement and that any acts oromissions of Defendant resulted in damages to Plaintiff. Further, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph regarding damages incurred by Plaintiff and therefore they are denied. However, it is specifically denied that any damages allegedly incurred by Plaintiff resulted from any actions or omissions of Defendant. WHEREFORE, Defendant Protologics Corporation demands that judgment be entered in its favor and against Plaintiff Perfect Solutions, Inc. with costs assessed to Plaintiff. NEW MATTER 79. Plaintiff has failed to state a claim for which relief can be granted for rescission/fraudulent inducement. 80. Plaintiff has failed to state a claim for which relief can be granted for fraud/intentional misrepresentation. 1s- 81. Plaintiff has failed to state a claim for which relief can be granted for negligent misrepresentation. 82. Plaintiff has failed to state a claim for which relief can be granted for breach of contract. 83. There is no statutory, contractual or other basis which entitles Plaintiff to recover attorney's fees demanded in all four ad damnum clauses. Therefore, Plaintiff is not entitled to recover attorney's fees. 84. Plaintiffs claim is barred by the doctrines of waiver and estoppel. 85. Plaintiffs claim is barred because any damages suffered by Plaintiff resulted from its own actions. 86. Plaintiffs claim is barred by the statute of limitations. 87. The damages, if any, suffered by Plaintiff were the result of Plaintiffs breach of the Agreement as set forth more specifically in the Counterclaim below, the averments of which are incorporated by reference herein. 88. At all times Defendant properly performed in accordance with, and met its obligations under, the Agreement. WHEREFORE, Defendant Protologics Corporation demands thatthe Complaint be dismissed and thatjudgment be entered in its favor and against Plaintiff Perfect Solutions, Inc., with costs assessed to Plaintiff. 17- COUNTERCLAIM Protologics Corporation V. Perfect Solutions. Inc. Defendant and Counterclaimant Protologics Corporation asserts the following counterclaim against Plaintiff Perfect Solutions, Inc.: 89. The averments of paragraphs 1 through 88 inclusive hereof are incorporated by reference herein as if set forth in their entirety. 90. On or about April 20, 2001, Plaintiff and Defendant entered into the Agreement, a copy of which is attached to Plaintiff's Supplement to the Complaint Submitting the Contract per Order of Court, filed pursuant to the Court's Order dated December 29, 2004. 91. Pursuant to the Agreement, Plaintiff agreed to, inter alia, perform certain requirements and comply with certain obligations with respect to the sale, promotion, installation, and servicing of Plaintiffs ProtoMED product, as more specifically set forth in the Agreement. 92. Plaintiff breached the Agreement by, inter alia: A. within sixty (60) days from the effective date of the Agreement, failing to purchase from Defendant a minimum of one hundred current marketing pieces pursuant to paragraph 1.3.3 of the Agreement; B. within sixty (60) days from the effective date of the Agreement, failing to implement a marketing program approved by Defendant pursuant to paragraph 1.3.4 of the Agreement; -18- C. failing to promote Defendant's products and enhance the ProtoMED name recognition via Plaintiffs marketing, sales, conversion, installation and training of Defendant's products pursuant to paragraph 1.3.5 of the Agreement; D. failing to register sales of the ProtoMED product in a timely manner pursuant to paragraph 1.3.6 of the Agreement; E. competing in "protected territories" as :set forth in an Addendum to the Agreement in violation of paragraph 1.3.7 of the Agreement; F. violating paragraph 2.3 of the Agreement if Plaintiff marketed, sold and/or leased products of direct competitors of Defendant; G. making disparaging and derogatory comments and misrepresentations about Defendant and Defendant's products; H. misrepresenting that Plaintiff had adequate employees/staff with sufficient expertise to support a dealership and to comply with the requirements and conditions of the Agreement; and failing to employ an adequate and competent sales force and support staff to support a dealership and to comply with the requirements and conditions of the Agreement. 93. Defendant has properly performed in accordance with, and met its obligations under, the Agreement. 94. As a result of Plaintiff's breaches of the Agreement, Defendant has incurred, inter aria, the following damages in an amount in excess of $25,000: lost profits; lost business opportunities; lost consulting fees; lost software support fees; lost software sales; 19- lost employee time; and expenses incurred in providing support, training and consulting services to Plaintiff. WHEREFORE, Defendant and Counterclaimant Protologics Corporation demands that judgment be entered in its favor and against Plaintiff Perfect Solutions, Inc. in an amount in excess of $25,000, the jurisdictional amount required for referral to arbitration, plus interest and costs. Date: January 21, 2005 -?L ?4t't R. J es Reynolds, Attorney I.D. #10252 Email - Ireynolds@ttanlaw.com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 (717) 255-7604 / FAX (717) 236-8278 Attorney for Defendant/Counterclaimant Protologics Corporation -20- VERIFICATION I, R. James Reynolds, Jr., state that I am the attorney for Defendant Protologics Corporation. Because Defendant is outside the Court's jurisdiction and its verification could not be obtained within the time allowed for filing, I am making this verification on its behalf. I verify that the facts set forth in Defendant's Answer to Complaint with New Matter and Counterclaim are true and correct to the best of my knowledge, information and belief. I understand that my statements are made subject to 18 Pa. C.S.A. §4904, providing for criminal penalties for unsworn falsification to authorities. Date: January 21, 2005 R. J es Reynold , Jr. 61 CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of Defendant's Answer to Complaint with New Matter and Counterclaim on Plaintiff by placing the same in the United States Mail at Harrisburg, Pennsylvania, first-class postage prepaid, on the 21 st day of January, 2005, addressed as follows: Andrew W. Barbin, Esquire Andrew W. Barbin, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, Pennsylvania 17055 (Attorney for Plaintiff) Thomas, Thomas„ Armstrong & Niesen i By: G '7}? ,,;? d ill Sharon Dell-Gallagher, ecret ' ,...5 y ( t t ? 1 R. James Reynolds, Jr., Esquire PA Supreme Court I.D. No. 10252 Email: ireynolds(dilttanlaw.com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, Pennsylvania 17108-9500 Telephone: (717) 255-7604 FAX: (717) 236-8278 Attorney for DefendantlCounterclaimant Protologics Corporation IN THE COURT OF COMMON FLEAS CUMBERLAND COUNTY, PENNSYLVANIA PERFECT SOLUTIONS, INC., Plaintiff V. No. 02 - 1584 - Civil Term CIVIL ACTION - LAW PROTOLOGICS CORPORATION, Defendant PRAECIPE TO SUBSTITUTE VERIFICATION To the Prothonotary: Please substitute the attached Verification of Lawrence R. Walsh for the attorney Verification attached to Defendant's Answer to Complaint with New Matter and Counterclaim filed with the Court on January 24, 2005. Date: January 24, 2005 R. Ja Reyn9 ds, Attorney I.D. #10252 Email -- ireynoldsta'?.ttanlaw. com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 (717) 255-7604 / FAX (717) 236-8278 Attorney for Defend ant/Counterclaimant Protologics Corporation VERIFICATION 1, Lawrence R. Walsh, CEO and President of Defendant Protologics Corporation, depose and say, subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities, that the facts set forth in Defendants Answer to Complaint with New Matter and Counterclaim are true and correct to the best of my knowledge, information and belief. Date Lawrence R. Walsh -18- CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing Praecipe to Substitute Verification on Plaintiff by placing the same: in the United States Mail at Harrisburg, Pennsylvania, first-class postage prepaid, on the 24th day of January, 2005, addressed as follows: Andrew W. Barbin, Esquire Andrew W. Barbin, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, Pennsylvania 17055 (Attorney for Plaintiff) Thomas, Thomas, Armstrong & Niesen By: aS/haron Dell-Gallagh r, Seci ary t„ CJ7 T? ? p ai. 1 = r, Andrew W. Barbin, Esquire ANDREW W. BARBIN, P.C. 5020 RITTER ROAD, SUITE 109 MECHANICSBURG, PA 17055 717-506-4670 PERFECT SOLUTIONS, INC. Plaintiff Attorneys for Perfect Solutions, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. PROTOLOGICS CORPORATION Defendant DOCKET NO. 02-1584 Civil Term NOTICE TO PLEAD TO: PROTOLOGICS CORPORATION c/o R. James Reynolds, Jr., Esquire Thomas, Thomas, Armstrong & Niesen Suite 500, 212 Locust Street Harrisburg, PA 17108-9500 Attorney for Defendant YOU ARE HEREBY NOTIFIED TO PLEAD to the enclosed Plaintiffs New Matter to the Counterclaim of Defendant within twenty (20) days from service hereof, or a default judgment may be entered against you. Date: February 10, 2005 Andfe W. Barbin, Esquire PA At y. 43571 ANDREW NV. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 717-506-4670 Attorney for Plaintiff Cumberland County Dkt. No. 02-1584 Civil Term Andrew W. Barbin, Esquire ANDREW W. BARBIN, P.C. 5020 RIT"ITR ROAD, SUITE 109 MECHANICSBURG, PA 17055 717-506-4670 PERFECT SOLUTIONS, INC. Plaintiff vi. PROTOLOGICS CORPORATION Defendant Attorneys for Perfect Solutions, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02-1584 Civil Term PLAINTIFF'S RESPONSE TO NEW MATTER OF DEFENDANT & ANSWER WITH NEW MATTER TO THE COUNTERCLAIM OF DEFENDANT Plaintiff, Perfect Solutions, Inc., (Perfect Solutions), b:y and through undersigned counsel, files this Response to New Matter and Answer to Counterclaim. PLAINTIFF'S RESPONSE TO NEW MATTER OF DEFENDANT 79. Denied. This is a conclusion of law to which further response is not required. 80. Denied. This is a conclusion of law to which further response is not required. 81. Denied. This is a conclusion of law to which further response is not required. 82. Denied. This is a conclusion of law to which further response is not required. 83. Denied. This is a conclusion of law to which further response is not required. 84. Denied. This is a conclusion of law to which further response is not required. 85. Denied. Damages resulted from the acts and omissions of Defendant. This is a conclusion of law to which further response is not required. 86. Denied. This is a conclusion of law to which further response is not required. Cumberland County Dkt. No. 02-1584 Civil Term 87. Denied. Plaintiff did not breach the agreement and performance of additional terms was frustrated and excused by the prior material breached of Defendant. This is a conclusion of law to which further response is not required. 88. Denied. Breaches and wrongful conduct are set forth in the Complaint. WHEREFORE, the New Matter of Defendant should be dismissed, and relief should be granted to plaintiff as requested in the Complaint. PLAINTIFF'S ANSWER TO COUNTERCLAIM OF DEFENDANT FOR ALLEGED BREACH OF CONTRACT 89. The averments of the Complaint and responses to New Matter contained in Paragraphs 1- 88 are likewise incorporated by reference as if restated verbatim. 90. Admitted. 91. The Agreement is a writing which speaks for itself. The averments of the Complaint are incorporated as they relate to fraudulent inducement and misrepresentation which impact the alleged obligations of Plaintiff to Defendant. 92. Denied. Plaintiff did not breach the agreement. Defendant engaged in fraudulent inducement, intentional and negligent misrepresentation and materially breached its obligations from the outset. Plaintiff went above and beyond contractual obligation to attempt to salvage the relationship and intended mutual benefit of the contract without reciprocation from defendant. a. Denied. Marketing materials were not purchased because prior material breaches by Defendant undermined marketing efforts and removed the reason and rationale of the purchase provision. Defendant supplied a certain quantity of its materials without expense and participated in the initial marketing efforts. The agreed plan was to secure initial sales from existing clients of Perfect Solutions, who would become the satisfied customers whose references and testimonials would drive broader marketing, as was clearly spelled out in Section II of the approved marketing strategy. Bulk distributions of marketing materials Cumberland County Dkt. No. 02-1584 Civil Term 2 and/or cold calls were never envisioned as significant component of the agreed marketing strategy. b. Denied. Perfect Solutions prepared and submitted a marketing plan prior to the execution of the agreement and commenced implementation within that time period. Several demonstrations were made to existing clients as outlined in Section Il of the marketing strategy. In fact, Mr. Walsh participated personally in some of the demonstrations. We had three agents of Perfect Solutions operating a vendor booth at the Philadelphia PA Osteopathic Medical Association annual meeting May 2-4, 2001 at a substantial cost to us. We sent the same three agents to work at our vendor booth at the National Association of Healthcare Consultants annual meeting in June 2001, which was held in Scottsdale, AZ, again at a substantial cost to us. We were one of the sponsors at the "birthday party" for a new OB-GPN practice that opened in June 2001. All of these efforts were spelled out in the marketing strategy. Prior material breaches and misrepresentations by Defendant undermined marketing efforts and frustrated full implementation of the plan, as detailed in the Complaint. The gist of the agreed plan was to secure initial sales from existing clients of Perfect Solutions, who would become the satisfied customers whose references and testimonials would drive broader marketing. Defendant did not object to the plan. Deficiencies in the product and support combined with misrepresentations of Defendant concerning the product, when activities of Defendant would be complete made it impossible to continue to ethically recommend the product. c. Denied. Plaintiff performed its duties, Defendant did not. d. Denied. Plaintiff informed defendant of the progress at every stage. Registration of sales was thwarted by the failure of performance by Defendant which resulted in the rescission of the sale as detailed in the Complaint. e. Denied. The Contract also contains an applicable Addendum. Plaintiff had existing clients in Virginia and identified a very large one as a hot prospect. Defendant failed to grant an exemption and lost a potential sale due to its inadequate effort to secure the sale for itself after getting an opportunity to demonstrate the product to the client, partly due to Plaintiff's efforts. Cumberland County Dkt. No. 02-1584 Civil Term 3 f. Denied. Plaintiff did not market, sell or least; any competing product. g. Denied. There was no breach of contract in this respect. No contract obligation relating to disparaging statement, derogatory comments or misrepresentations is identified. The averment sounds in the nature of a separate claim which is improperly and inadequately pled as detailed below in New Matter. No disparaging comments or misrepresentations were made. As to derogatory comments, opinions based on disclosed facts and truthful negative statements are not actionable and truth remains a complete defense. Because specific statements are not alleged, as would be required for a disparagement or misrepresentation claim, further response can not be provided. h. Denied. Plaintiff accurately represented the quantity, quality, and experience of its staff. Plaintiff had competent staff and continued to maintain such staff at considerable wasted expense as set forth in the Complaint, when Defendant's material misrepresentations and material breaches frustrated the purposes for which such staff was maintained. i. Denied. Plaintiff had competent staff and continued to maintain such staff at considerable wasted expense as set forth in the Complaint, when Defendant's material misrepresentations and material breaches frustrated the purposes for which such staff was maintained. 93. Denied. Defendant engaged in fraudulent inducement, intentional and negligent misrepresentation and materially breached its contractual obligations as detailed in the Complaint. 94. Denied. Defendant incurred no damages as the result of acts or omissions of Plaintiff, to the contrary, any and all damages actually incurred were self inflicted and concurrent with the damages inflicted on plaintiff as alleged in the Complaint. WHEREFORE, the Counterclaim of Defendant should be dismissed with prejudice and relief should be awarded to Plaintiff as requested in the Complaint. Cumberland County DkI. No. 02-1584 Civil Term 4 PLAINTIFF'S NEW MATTER TO DEFENDANT'S COUNTERCLAIM 95. The contract is voidable at the election of Plaintiff as the result of the fraudulent inducement by Defendant to secure the contract with Plaintiff, a.s detailed in the Complaint. 96. The fraudulent conduct of Defendant entitles Plaintiff to rescission and restitution, and excuses alleged nonperformance of contract obligations by Plaintiff. 97. The contract is voidable at the election of Plaintiff as the result of the intentional and/or negligent misrepresentations of Defendant, as detailed in the Complaint. 98. The intentional and/or negligent misrepresentations of Defendant, entitle Plaintiff to rescission and restitution, and excuses alleged nonperformance of contract obligations by Plaintiff. 99. Defendant materially breached its obligations prior to any alleged material breach by Plaintiff, thereby excusing any subsequent alleged breach by Plaintiff. 100. The averment in Paragraph 92(g) does not state a contract claim, and inadequately states claims for either disparagement or misrepresentation. Either alternate claim is inadequate in that sufficient specificity of the alleged disparagement or misrepresentation is not made. 101. As to the averment in Paragraph 92(g), truth is a complete defense. WHEREFORE, the Counterclaim of Defendant should be dismissed with prejudice and relief should be awarded to Plaintiff as requested in the Complaint. Respectfully And ew )V. Barbin Att . I.D. #43571 ANDREW W. BARBIN, P.C. 5020 Ritter [load, Suite 109 Mechanicsburg, PA 17055 (717) 506-4670 Counsel for Plaintiff DATED: February 10, 2005 Cumberland County Dkt. No. 02-1584 Civil Term 5 ....................................... 02-10-'05 14:30 FROM-Cavanaugh Michaels Aadiew W. Harbin, Esquire ANOREw W. 8AR&tN,P.C. 5020 Ritter Road, Suite 109 Kwbauicsburg, PA 17055 (717) 506-4670 PERFECT SOLUTIONS, LTD. Plaintiff .717-691-6855 ..... ............... T-223 P01101...U-781............ ......... .____ rage a ma Attorucys for Perfect Solutions, Inc, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA W. , CIVIL ACTION- LAW PROTOLOGICSFAM LY PRACTICE ASSOCIATES, LTD, DOCKET NO, 02-1584 Civil Term Defendant VERIFICATION I, Lee Cavanaugh, of Perfect Solutions, Ltd., verify that the statements made in the foregoing PLmNTw's REsmNsE TO NEW MATTER OF DEFENDANT AND ANSWER WITH NEW MATTER To THE COUNTERCLArni OF DEFENDANT are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unswom falsification to authorities, rfect Solutions, Lt e Cavanaugh ti DATED: 1 Andrew W. Barbin, Esquire ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 506-4670 PERFECT SOLUTIONS, LTD. Plaintiff V. Attorneys for Perfect Solutions, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA PROTOLOGICS FAMILY PRACTICE ASSOCIATES, LTD. Defendant CIVIL ACTION - LAW DOCKET NO. 02-1584 Civil Term CERTIFICATE OF SERVICE I, ANDREW W. BARBIN, do hereby certify that on the date indicated below, served a true and correct copy of the foregoing PLAINTIFF'S RESPONSE TO NEW MATTER OF DEFENDANT AND ANSWER WITH NEW MATTER TO THE COUNTERCLAIM OF DEFENDANT by having the foregoing document served by facsimile and United States first-class mail, postage prepaid addressed to the following: VIA FACSIMILE (717-236-8278) R. James Reynolds, Jr. Esquire Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 P.O. Box 9500 Harrisburg, Pa 17108-9500 DATED: February 10, 2005 Cumberland County Dkt. No. 02-1584 Civil Tem ?... l f } ... i ?? I (_'? ?. R. James Reynolds, Jr., Esquire PA Supreme Court I.D. No. 10252 Email: ireynoldsiciittanlaw.com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, Pennsylvania 17108-9500 Telephone: (717) 255-7604 FAX: (717) 236-8278 Attorney for Defendant/Counterclaimant Protologics Corporation IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PERFECT SOLUTIONS, INC., Plaintiff V. No. 02 - 1584 - Civil Term CIVIL ACTION - LAW PROTOLOGICS CORPORATION, Defendant DEFENDANT'S REPLY TO PLAINTIFF'S NEW MATTER TO DEFENDANT'S COUNTERCLAIM AND NOW, comes Defendant Protologics Corporation ("Defendant"), by its undersigned attorney, and files this Reply to the New Matter of Plaintiff Perfect Solutions, Inc. ("Plaintiff') to Defendant's Counterclaim. 95. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, Defendant assumes that the "contract" to which Plaintiff refers is the Independent Dealership Agreement ("Agreement") entered into between Plaintiff and Defendant on or about April 20, 2001. It is specifically denied that Defendant fraudulently induced Plaintiff to enter into the Agreement and that the Agreement is voidable for, inter alia, the reasons set forth in Defendant's Answer to Plaintiffs Complaint with New Matter and Counterclaim ("Defendant's Answer"). 96. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant engaged in fraudulent conduct and that Plaintiff is entitled to recission and restitution for, inter alia, the reasons set forth in Defendant's Answer. 97. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant made any misrepresentations, including without limitation intentional and/or negligent misrepresentations, and that the Agreement is voidable for, inter alia, the reasons set forth in Defendant's Answer. 98. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant made any misrepresentations, including without limitation intentional and/or negligent misrepresentations, and that Plaintiff is entitled to recission and restitution for, inter alia, the reasons set forth in Defendant's Answer. 99. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Defendant breached the Agreement for, inter alia, the reasons set forth in Defendant's Answer. To the contrary, Defendant properly performed in accordance with, and met its obligations under, the Agreement. 100. Denied. The averments of this paragraph state a conclusion of law to which no response is required. z- 101. Denied. The averments of this paragraph state a conclusion of law to which no response is required. WHEREFORE, Defendant and Counterclaimant Protologics Corporation demands that: (1) Plaintiffs Complaint be dismissed and that judgment be entered in favor of Defendant and against Plaintiff on Plaintiffs claim, as prayed for in Defendant's Answer to the Complaint with New Matter; and (2) judgment be entered in favor of Defendant and against Plaintiff in an amount in excess of $25,000, the jurisdictional amount required for referral to arbitration, plus interest and costs, as prayed for in Defendant's Counterclaim. Date: February 28, 2005 Zl? RJa e Reynolds, Ji Attor ey I.D. #10252 Email - Reynoldsttanlaw.com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 (717) 255-7604 / FAX (717) 236-8278 Attorney for Defendant/Counterclaimant Protologics Corporation 3- VERIFICATION I, R. James Reynolds, Jr., state that I am the attorney for Defendant Protologics Corporation. Because Defendant is outside the Court's jurisdiction and its verification could not be obtained within the time allowed for filing, I am making this verification on its behalf. I verify that the facts set forth in Defendant's Reply to Plaintiffs New Matter to Defendant's Counterclaim are true and correct to the best of my knowledge, information and belief. I understand that my statements are made subject to 18 Pa. C.S.A. §4904, providing for criminal penalties for unsworn falsification to authorities. Date: February 28, 2005 tan`- < c` Z? ames Reynolds, V. CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of Defendant's Reply to Plaintiff's New Matter to Defendant's Counterclaim on Plaintiff by placing the same in the United States Mail at Harrisburg, Pennsylvania, first-class postage prepaid, on the 28th day of February, 2005, addressed as follows: Andrew W. Barbin, Esquire Andrew W. Barbin, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, Pennsylvania 17055 (Attorney for Plaintiff) Thomas, Thomas, Armstrong & Niesen By: Sharon Dell-Gallagher, Secretary ?...ry f (J7 ?tl uy ? I:: -!-? -, 1>. t`?1 ?' *r' -, ?n ?. ?? Cl ?- ] ?- U7 t P:? ._ ?. CJ vs ld i?G s ?? d /a Case No. 02 -15,?V (•• i>, /.e.,rn Statement of Intention to Proceed To the Court: / /o Fej Sa (u-kcrX SS 46 intends to proceed the ove captioned !! /? // ,__ Print Name ?lQ lEOcy Q . 4CC 4 1- Sign Name Date: a Z 0 Attorney for /Q 1_4_ej& 4 7: o-iS Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a patty believes that it should not have been terminated, that party may proceed under Ru1e230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. C'> C3 ' Co mot ` -? ! . r_ U' i N' t ;C. L Andrew W. Barbin, Esquire ANDREW W. BARBIN, P.C. 555 GETPYSBURG ME, Surm C-100 MECHAmcsBuRG, PA 17055 717-506-4670 PERFECT SOLUTIONS, INC. Plaintiff V. PROTOLOGICS CORPORATION Defendant Attorneys for Perfect Solutions, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW DOCKET NO. 02-1584 Civil Term PRAECIPE TO UPDATE ENTRY OF APPEARANCE To: Curtis R. Long, Prothonotary Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013 • Please update the mailing address and phone number of Andrew W. Barbin, Attorney for Plaintiff, as follows: Andrew W. Barbin, Esquire Atty. I.D. 43571 ANDREW W. BARBIN, P.C. 555 Gettysburg Pike, Suite C-100 Mechanicsburg, PA 17055 Phone: 717-506-4670 Fax: 717-506-4672 Andfewr W. Barbla. Esquire PA Atty. 43571 ANDREW W.11mmiN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 717-506-4670 Attorney for Plaintiff DATED: September 23, 2008 Andrew W. Barbin, Esquire ANDREW W. BARBIN, P.C. 555 GETTYSBURG PIICE, surm c- 100 WcHANicsBURG, PA 17055 717-506-4670 PERFECT SOLUTIONS, INC. Plaintiff V. PROTOLOGICS CORPORATION Defendant Attorneys for Perfect Solutions, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02-1584 Civil Term CERTIFICATE OF SERVICE I, ANDREW W. BARBIN, do hereby certify that on the date indicated below, served a true and correct Copy of the foregoing PRAECIPE TO UPDATE ENTRY OF APPEARANCE by having the foregoing document served by United States first-class mail, postage prepaid addressed to the following: R. James Reynolds, Jr. Esquire Thomas, Long, Niesen & Kennard 212 Locust Street, Suite 500 P.O Box 9500 Harrisburg, PA 17108-9509 ?ATED: September 23, 2008 .' _ c n Co