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HomeMy WebLinkAbout01-5376· KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., 311 Grand Avenue Neville Island, PA 15225 Plaintiff VS. EAGLE FREIGHT LINES, INC. 835 Wynnewood Road Camp Hill, PA 17011 Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS To the Prothonotary: Please issue a Writ of Summons in a civil action against the Defendant named above. KOZLOFF STOUDT Dated: Attorney ID# 69343 2640 Westview Drive Wyomissing, PA 19610 (610) 670-2552 Attorney for Plaintiff KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., 3111 Grand Avenue Neville Island, PA 15225 Plaintiff VS. EAGLE FREIGHT LINES, INC. 835 Wynnewood Road Camp Hill, PA 17011 Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW Lc"-'-"'~-~r~l NO.: C~i- ,~.~7~= ~to~ JURY TRIAL DEMANDED WRIT OF SUMMONS TO: Eagle Freight Lines, Inc. You are hereby notified that Plaintiff, Tri-State Trailer Leasing, Inc., has commenced an action against you. Dated: , Pro~honot~7~- Deputy Prothonotary · KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., 311 Grand Avenue Neville Island, PA 15225 Plaintiff VS. EAGLE FREIGHT LINES, INC. 835 Wynnewood Road Camp Hill, PA 17011 Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW NO. JURY TRIAL DEMANDED SHERIFF'S INSTRUCTIONS To the Sheriff: Please serve the Writ of Summons on the Defendant, Eagle Freight Lines, Inc. at 835 Wynnewood Road, Camp Hill, Pennsylvania 17011 KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PA : CIVIL ACTION - LAW : NO. 2001-05376P : : JURY TRIAL DEMANDED : COMPLAINT NOTICE TO DEFEND TO: Eagle Freight Lines, Inc. 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 OR CANNOT AFFORD ONE, GO TO OR TEI.lqPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyers' Referral Service of the Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 (800) 990-9108 1. The Plaintiff is Tri-State Trailer Leasing, Inc., (hereinafter "Tri-State") a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 3111 Grand Avenue, Neville Island, Allegheny County, Pennsylvania 15225. 2. The Defendant is Eagle Freight Lines, Inc., (hereinafter "Eagle Freight") a corporation believed to be organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 835 Wynnewood Road, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Tri-State and Eagle Freight are parties to a Lease Agreement dated July 8, 1999, (hereinafter "Lease Agreement") for the rental of a 1999 Trailmobile trailer, (hereinafter "Trailer") VIN X9016382. A copy of the Lease Agreement is attached hereto as Exhibit "A' and its contents are incorporated by reference herein as fully as though the same were set forth at length. 4. The Lease Agreement contains among others, the following material terms a. Lessee agrees to pay as rental the sum of $300.00 per unit, per 4 week billing cycle, to be paid 15 days after the invoice date, hereafter until the completion of the lease, for a period of 6 months and the trailers have been returned in good condition. Loss or destruction of the trailers shall not abate the rental due. Plus $200 delivery charge. b. Lessee will be responsible for any damage to the trailer other than normal wear and tear. Lessee shall, at its own costs and expense procure and deliver to Lessor, simultaneously with or prior to delivery to Lessee of the trailers, and keep in full force and effect during the entire term of this Agreement, a Certificate of Insurance satisfactory to Lessor as to the insurer and as to the form and 2 amount of coverage with premiums prepaid thereon for the term of this Agreement, protecting Lessor against all loss and damages it may sustain or suffer because of the death of, injury to, or damage to property of any third person as a result of, in whole or in part, the use of the trailers while in the custody, possession, or control of Lessee with limits of $1,000,000. As to personal injury liability and $1,000,000. As to property damage liability. Single interest liability insurance protecting lessor only may be obtained by Lessor at the expenses of Lessee at a premium of not more than $100 per trailer for one year or less if Lessee does not provide the liability insurance described above, provided however, that Lessor is not required to purchase such insurance, and unless Lessor does purchase such single interest liability insurance, Lessee's obligations to procure insurance shall not be relieved or affect in any respect. Net/Net Lease - customer responsible for any and all maintenance to include tires and brakes. Trailer must terminate with 100% tires and brakes per outgoing inspection report. A per 32na of tread wear on tire charge will be assessed as follows: $26.00/per 32na for radial tires and caps. Brakes will be charged as a percentage of wear from outgoing inspection report, based on $450.00 brake job. NO MILEAGE CHARGES. Lessee is not permitted to haul refuse/garbage nor hazardous waste materials. If it is determined that either has been hauled during the lease, lessee will be responsible to purchase the trailers at purchase option price located on schedule B. Delinquency Charges: For each Rental payment or other sum due hereunder which is not paid when due, Lessee agrees to pay Lessor a delinquency charge calculated thereon at the rate of 1-1/2% per month for a period of delinquency provided that such a delinquency charge is not prohibited by law otherwise at the highest rate Lessee can legally obligate itself to pay and or Lessor can legally collect. 5. Eagle Freight made payments in connection with the Lease Agreement through the 4 week billing cycle ending on or about April 20, 2001. 6. On or about that date, Eagle Freight returned the Trailer to the premises of Tri-State Trailer Sales, Inc. in Lancaster County, Pennsylvania. 7. At the time Eagle Freight returned the Trailer, it was in a defective, damaged and unusable condition due to the fact that it had obviously been used to haul used or discarded batteries, the acid from which leaked and contaminated the Trailer. 8. The tires for the Trailer had also been worn by 24/32na of an inch at a unit price of $26.00 per 32ha. The purchase price for the Trailer as set forth in the Lease Agreement is $16,803.00. 10. Rent for the Trailer continues to accrue at the rate of $300 per four week billing cycle until such time as Eagle Freight purchases the Trailer. 11. Tri-State issued to Eagle Freight numerous invoices representing ongoing rent charges, tire wear charges and the purchase price of the Trailer. 12. To date, Eagle Freight has failed and/or refused to pay the amount of the aforesaid invoices or any part thereof. 13. Tri-State has received an estimate of the costs to dispose of the Trailer in the amount of $970.00. 14. The charges imposed in connection with the aforesaid invoices are necessary, fair and reasonable and moreover are charges that Eagle Freight agreed to pay in connection with the Lease Agreement. 4 COUNT I BREACH OF CONTRACT 15. Plaintiffs incorporate by reference herein the contents of paragraphs one through fourteen inclusive, of this Complaint as fully as though the same were set forth at length. 16. Eagle Freight's return of the trailer before the expiration of the Lease Agreement and in a defective, contaminated and unusable condition constitutes a material breach of the Lease Agreement. 17. As a direct and proximate result of the terms of the Lease Agreement, Tri- State has suffered damages in the amount of $20,834.50 through November 4, 2001, will continue to suffer ongoing damages for unpaid rent at the rate of $300.00 per four (4) week billing cycle and disposal charges of $970.00. 18. Tri-State has fulfilled all conditions precedent to its recovery under the terms of the Lease Agreement. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $20,834.50, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. 5 COUNT II NEGLIGENCE 19. Plaintiffs incorporate by reference herein the contents of paragraphs one through eighteen inclusive, of this Complaint as fully as though the same were set forth at length. 20. Eagle Freight owed a duty of reasonable care to Tri-State in its possession and use of the Trailer during the term of the Lease Agreement. 21. Eagle Freight breached that duty of care in at least the following respects: a. Hauling improper materials; b. Improperly hauling materials that it knew or should have known could leak and contaminate the Trailer; c. Hauling materials in such a way so as to increase the risk of harm that they would leak and contaminate the trailer; d. Hauling materials in violation of applicable statutes, ordinances, codes or other regulations; e. Being inattentive; f. Failing to act with due regard for the rights of Tri-State upon the termination of the Lease Agreement; g. Failing to take appropriate steps to ensure that the materials hauled in the Trailer did not leak or otherwise contaminate the trailer; h. Being otherwise careless and negligent as further discovery and investigation may reveal. 21. As a direct and proximate result of the negligence of Eagle Freight as aforesaid, Tri-State has sustained the damages set forth at length hereinabove. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount not in excess of $50,000.00, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT III CONVERSION 22. Plaintiffs incorporate by reference herein the contents of paragraphs one through twenty-one inclusive, of this Complaint as fully as though the same were set forth at length. 23. Eagle Freight, by using the trailer for improper purposes or using improper methodologies as aforesaid, and returning the trailer in a condition damaged and unusable to Tri-State, has deprived Tri-State of its rights of ownership and use of the Trailer. 24. Eagle Freight's return of the Trailer in such a damaged an unusable condition constitutes an outrageous indifference to the rights of Tri-State in its Trailer. 25. Eagle Freight's deliberate and or indifferent violation of the rights of Tri- State is evil and outrageous so as to warrant an award of punitive damages in favor of Tri-State and against Eagle Freight. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. KOZLOFF STOUDT ~Esqm Attorney ID# 69343 Attorney for Plaintiff T R I - STATE TRAILER LEASING INC. TRAILER LEASE AGREEMENT Tri-State Trailer Leasit~, Inc., a Delaware Corporation ("Lessor") does hereby let and lease to Eagle Freight Lmes~ Inc. located at 835 Wynnewood Rd. Camp Hill PA117011 (Lessee") and Lessee does hereby hire i¥om Lessor upon the terms, covenants and conditions hereinafter stated the following described personat property (~'trailers'), viz.: MAKE MODEL SERIAL NO. UNIT# OTHER PROPERTY 1999 Trailmobile Van X9016382 48-5062 48' x 102" Spring Lessee acknowledges receipt of the trailers in good repair aad working condition. Lessee agrees to pay as rental tile sum ot:$ 300.00 .per unit, per 4 week bi!ling cycle, to be paid 15 days after the invoice date, hereafter antil the completion &the lease, for a period of 6 months and the trailers have been returned in good condition. Loss or destruction of the trailers shall not abate tile rental due. Plus $200 delivery charge. , Lessee shall reimhurse Lessor for, or pay. any sales tax, use tax, or other tax based apoo this transaction or upon the o,~mersh[p possession, use or operation of the trailers. This transaction is a rental and not a sale, conditional or otherwise. Lessee does not acquire any right, title, or interest iii or to these trailers. Lessee shall bare right to possession and use of ON E trailer(s), so long as this agreement continues in effect and lessee shall not be in dethult in pertbmaance. "Associates Commercial Corp. has a security interest in this lease and all rights, rents and monies hereanoer and the property listed herein." Initial here: Lessee will be responsible fbr aoy damage to the trailer other than normal wear and tear. Lessee shall, at its own cost and expense procure and deliver to Lessor. simultaneously with or prior to delivery to Lessee &the trailers, and keep in fidl force and effect during the entire term o~'this Agreement. a Certificate oi" losurance satisfactory to Lessor as to the insurer and as to tile i'brm and amount pt'coverage with premiums prepaid thereon for the term pt'this Agreement, protecting Lessor against all loss and damages it may sustain or suffer because of the death pi': injury to. or damage to property of any third person as a resalt oi", in whole or in part. the use of the trailel's while in the custody, possessioa, or control of Lessee with limits of $1,000,000. as to personal injury liability and $1,000,000. as to property damage liability. Single interest liability insuraoce protecting lessor only may be obtained by Lessor at the expense of Lessee at a pr~ m ium pi" not more than $ 100 per trailer I'br one year or less if Lessee does not provide the liability insurance described above, provided, however, that Lessor is not required to pnrchase such insurance, and unless Lessor does purchase sach single interest liability insm'ance, Lessee's obligations to procure insnrance shall not be relieved or affected any respect. LESSOR MAKES NO WARRANTY EXPRESSED OR IMPLIED AS TO THE FITNESS, MERCHANTABILIFY, DESIGN, CONDITION CAPACITY, PERFORMANCE OR ANY OTHER ASPECT OF THE TRAILERS OR THEIR MATERIALS OR WORKMANSHIP. ALL NEW TP, AILERS HAVE A LIMITED WARRANTY BY THE MANUFACTURER. ANY WARRANTY REPAIRS g,'.LL BE PROVIDE[) THROUGH Tri-State Trailer Sales Initial here: ] Y~L-15-1999 .E9:16.. TRI STATE II LANC. PA. ?I? 569 @309 P.10/14 IO. Il. 12. 13. 14. 1.caste agrccs nnl to sell, all or a. ny purr ofLe~sec's intere.~t ~n t~e a~cmcnL or any except upon ~hc spcci~c ~k;en consent In ~? event Lc~:~e~ fails tO pe~orm any or,he tcnra or conditions ofthi~ A~rccment ~t d~c ti~ ~equired, or in the ~=nr ~scc bccomcS ~olvcnt, ben.pt, or othe~c ~abtc to perform [t~ obUgations, L~see shall ~ deemed to be ~ dc~ulr, and Lessor sh~ll bear ~e absolute ~d ~qu~lifi~d right to et~cr: (I) declare ~s b~lance of ~c r~ml payable hercundg i~cdiatcly du~ and parle, or (2) rc~c or retain tM railers without dc~d or re ~ter upo~ ~e p~miscs where ~ ~Ucra ~c located for c[~ pu~ose of r~o~ing :he sam~. ~aee ~er au~o~s Lessor lo plac~ ~ny prope~ or goods stor~d in the ~ail~r~ in p~blic stooge ~t ~e expem~ of~sce. Lessor will notify, no ~arlier 1ban 30 ~ays, bc~brc Le~or ta~s action upon Lessee. Lessor reserves thc fight tn cancel ,bLs agreement on not Ic.~s then r~lrty (30) days written nodc~, Lcsscc's obligation to pay ~er rental ~ll cease and L~see will pay to Lo~or all rental accm~ but unpaid ~ Lessor will re.nd re Levee any renal paid in ad~an~e for any period beyond the dat~ o~ :~c rcm~ o~:he ~ilers. Net/Net Lease- customer respons~le for any and ell maintenance to ;nchtde tires nnd brake~. Trailer mu~t terminate with 100% tires and br~:c~ per outgoing inspection report. A pc.r 32"a of tr~ud wear on ~re charg~ will be ess~sed as follows: $26.00/p~r 32~'l for radial tires and caps. Br'~:es will be charged as a percentage of wear ~om outgoing inspcctiotl report, based on $450.00 brake job. NO MILEAGE CHARGES Repairs: In thc event ofrepairable damage to any pan of any ~r~ilcr, Lcaace shall remain liable for ali tr~ilcr n:ntal charges even though thc £raiIer is unusable. Lcsscc may hn%'~ the same repaired by =ny competem pecan, ~ or corporation et it's own expense, ~r upon nodce and delivery to Lessor, Les~or may repair said i:railcr for Les~;ee, using reMonable diligence m make seid repalrs or replacement in ~e .shortest possible time. Lessee agree:; to pay the amount charged by Lessor for any material or l~,bor :o mekc said top,ira Lessee agrees to m'ompdy ,,nd timely pay all ckvges for repairs or nuintenancc to :he le~sed Equipment and to suffer no lien for labor, materS:tis, or storage to be filed or attached to said EquipmenL Lee.~or r~ay, at ici ow~ option, ref',lse ~o do any repair work on any trailer in time of strike, or if in l.hc opinion of Lessor are not advisable. I.~asec shall not make, .~uffcr or pcrmiL any urgawf~[ use or handling of said leased Equipment Lessee shell not. without Lessor's prior wr'it:cn coo.~cnt thereto, make or suffer any changes, akera~ons or improvcmcnt~ in or to said leased Equipment or remov~ therefrom a.:y parts, accessories, e~chmcnL~ or other equipm~[. Lessee Is not permitted ~o haul refuse/garbage nor hazardous waste materials. If it is determined act either has been hauled during die lease, lessee will bo responsible to purch~ thc ~'ailcr~ at pumh~.~e option price ]oc~ted on schcduk 8. Delinquency Charges: For ~ach Rental payment or other sum due hereunder which is not paid when due, Lessee agrees to pay Le~or a delinquency charge calcuJa~d thereon at the rate of 1/2% per mona .for me period of delinquency provided that such a delinquency charge is not proh~itcd by law otherwise at the highe,q rate Lessee can legally obligate Rselfto pay and or Lessor can legally calker. J~L-15-1999 89:17 TRI STATE II LANC. PA. 717 56~ 8309 P.11/14 15, ~cmen~ bc~cu ~hc pa~i~ and sh~ll i~um ~ ~e b~ne~[ of~ bind ~ adm~is~ton, successors and ~[g~ of the parties. No =gr~e~, rep~s=nmtious or re.ced to ~t~g ~ ~gne~ by ~e p~ez. J~y 1999. Ea~le F,.ra bt Lines, Inc. (.L~ utc or Nan,: ot Pa~hip ~r Title of Au~ofiz~d Agent 835 Wynnewood Rd. Camp Hill, PA 1701 (Lessee'['Address) (Sigr~mre of Autho,'~zed Agen0 (Title) JUL-l$-1999 09:15 LEASE-AGREEMENT Payment Schedule "A" 1 711 ~199 ~ $300.00 2 B/13/90 $300 3 g/10/99 $3{30.00 4 10/8/99 $300,00 5 1115/99 $300.00 6 12J3/99 S300.00 7 12/31/99 $300,00 8 1/'28/00 ~9 2125/00 10 3/24/00 12 5/1 ~/00 13 6/1610~ 14 7/14/0C] 15 8Jl 1/00 16 9/8/00 I ? 10/6/00 18 11/3/00 20 - 12./2g/0( 21 '1/26/01 22 2/23101 23 3/23/01 24 4/20/01 25 5/18/01 27 7/13/01 28 8110101 2.9 9/?/01 30 10/5/01 31 11/2/01 32 11/3{3/{31 33 12/28/01 34 1/25/02 35 2/22/{32 36 3/22/02 37 38 40 TRI STRTE II LRNC. PR. ?17 569 S309 P,04/14 {1}1995 TIM 48' X 102" SPRING RIDE VAN xg018382 Tri-State Trailer Leasing, Leasing ManaCer JUL-13-1999 iT:2? TRI-STRTE TRRILER SALES ,: 422 777 4010 P.03 VERIFICATION The undersigned, having read the attached Complaint, hereby verifies that all averments of fact not appearing of record contained in the attached complaint are true and correct to the best of the undersigned'$ personal knowledge or information and belief. To the extent that the Complaint is based on information provided to the undersigned by counsel, the undersigned has relied upon counsel in taking this verification. This verification is made subject to the penalties of 28 Pa. C.S. § 4904 relating to unsworn falsification to authorities. TRI-STATE TRAILER LEASING, INC. / KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 2001-05376P JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter F. Schuchman, Jr., Esquire, hereby certify that on March ~ 2002, a copy of the attached Complaint was served upon the following parties via First Class Mail, postage prepaid: Eagle Freight Lines, Inc. At'm: Earl Mumma, Jr., President 835 Wyrmewood Road Camp Hill, PA 17011 This Certificate is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities. KOZLOFF STOUDT Attorney ID No. 69343 '''.4 Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972-8065 TRI-STATE TRAILER LEASING, INC. EAGLE FREIGHT LINES, INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, Eagle Freight Lines, Inc. in the above entitled action. JACK EMAS & ASSOCIATES BY: DALE A. BETTY Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972-8065 TRI-STATE TRAILER LEASING, INC. EAGLE FREIGHT LINES, INC. : Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P ORDER AND NOW, this day of ,2002 upon consideration of the preliminary objections of defendant Eagle Freight Lines, Inc. and any response thereto, it is hereby ORDERED that the Preliminary Objections are sustained as follows: 1. Count Two of Plaintiff's Complaint is stricken; 2. Count Three of Plaintiff's Complaint is slricken; 3. In the alternative, Count Two, paragraph 21 § (d), (e), (f), (g) and (h) are stricken. BY THE COURT: Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972-8065 TRI-STATE TRAILER LEASING, INC. EAGLE FREIGHT LINES, INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05576P PRELIMINARY OBJECTIONS OF DEFENDANT EAGLE FREIGHT LINES, INC., TO PLAINTIFF'S COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(2), (3) and (4) IN THE NATURE OF A MOTION TO STRIKE AND AS A DEMURRER 1. Plaintiff, Tri-State Trailer Leasing, Inc., (Tri-State) instituted the present action by Writ of Summons. On March 18, 2002, the Complaint was filed and defendant, Eagle Freight Lines, Inc., (Eagle) was served the same day. A copy of Plaintiff's Complaint is attached hereto, incorporated here'm by reference and marked Exhibit "A'. 2. PlaintiffTri-State and defendant Eagle entered imo a contract for the lease/rental of plaintiff s trailmobile trailer (trailer). A copy of the contract/lease agreement is attached hereto, incorporated herein by reference and marked Exhibit "B'. 3. Pursuant to the provisions of the lease agreement, Tri-State has claimed money damages for breach of contract, Count One, for defendant Eagle returning the trailer in a d~unaged condition; a corresponding negligence claim, Count Two and a punitive damage claim, Count Three. 4. Pa.R.C.P. 1028(a)(2) permits preliminary objections for, among other things, a failure of a pleading to conform to law, § 1028(a)(3) permits preliminary objections for insufficient specifically in a pleading whereas § 1028(a)(4) allows preliminary objections for legal insufficiency of a pleading. 5. Pa.R.C.P. 1019(a) requires a pleading to contain material facts on which a cause of action is based. MOTION TO STRIKE/DEMURRER Factual and legal insufficiency to support claim of Negligence - Count H: 6. Plaintiff's Complaint, Count Two, alleges that defendant Eagle's conduct was negligent and breached its duty of reasonable care to plaintiffin its possession and use of the trailer during the term of the contractual lease agreement. 7. The rights, duties and remedies of the parties is as set forth in the contract, Exhibit "B", thus Tri-State's claim is based on a breach of contract. 8. PlaintiffTri-State's claim for negligence is a tort action and basically is a duplicate claim for the underlying breach of contract action. 9. Plaintiff's claim for negligence is set forth in paragraph 21, Count Two, breached the duty of care as follows: (a) hauling improper materials; (b) improperly hauling materials that it knew or should have known could leak and contaminate the trailer; (c) hauling materials in such a way so as to increase the risk of harrn that they would leak and contaminate the trailer; (d) hauling materials in violation of applicable statutes, ordinances, codes or other regulations; (e) being inattentive; (f) failing to act with due care for the rights of Tri-State upon the termination of the lease agreement; (g) failing to take appropriate steps to ensure that the materials hauled in the trailer did not leak or otherwise contaminate the trailer; (h) being otherwise careless and negligent as further discovery and investigation may reveal. 10. Tort action cannot be maintained when it, in effect, duplicates the primary claim of breach of contract, thus the tort claim is barred by the "gist of the action" doctrine since it is legally insufficient be'mg a negligent performance of contractual duties. 11. The economic losses alleged in the tort negligence claim is identical to the economic losses alleged in the breach of contract claim and since the "gist of the action" doctrine cannot be evaded by the mere expedient of pleading the negligence acts when plaintiff's claim is premised on the terms of contractual conditions, the negligent claim is legally insufficient. WHEREFORE, Defendant Eagle requests the Court to strike/dismiss Count Two of plaintiff's Complaint for being legally insufficient pursuant to Pa.R.C.P. 1028(a)(4). 12. In addition, Count Two, paragraph 21, subsections (d) to (h) of plaintiff's Complaint are "catch-all" conclusions which are conclusionary averments that are impermissibly vague, thus they are factually and legally insufficient, specifically for failure to confirm to rule of law, Pa.R.C.P. 1028(a)(2) and lack sufficient specificity, §1028(a)(3). 13. The aforementioned impermissively vague conclusionary averments fail to confirm to role of law, lack sufficient specificity and do not comply with the requirements of Pa. R.C.P. WHEREFORE, Defendant Eagle requests the Court to strike paragraphs 21 (d) to (h) of Count Two of plainfiWs Complaint for failing to comply with the requirements of Pa.R.C.P. 1028(a)(2) and (3). MOTION TO STRIKE/DEMURRER Factual and legal insufficiency to support claim of punitive damages - Count HI: 14. PlaintiffTri-State's Complaint, Count One, sets forth the basis of its claim, a private contract, Exhibit "B", whose terms define the obligations ofplaintiffTri-State and defendant Eagle. 15. Count Three of Plaintiff's Complaint requests punitive damages which falls to state a claim upon which relief can be granted since punitive damages cannot be recovered merely for a breach of contract. 16. Count Three of Plaintiff's Complaint requests punitive damages without asserting any facts of outrageous conduct of defendant Eagle and the general averments are conclusionary in nature and do not set forth with the required particularity the factual allegations that would show and/or infer that defendant Eagle acted with a n~licious, willful state of mind. 17. Count Three of Plaintiff's Complaint requests punitive damages without asserting any facts of any duty imposed by society that defendant Eagle may have breached in addition to the rights, duties and obligations of the contract between the parties. 18. Pa.R.C.P. 1019(a) provides that the Complaint shall set forth material facts in support of plaintiff's claim and in this instance punitive damages. 19. The assertions in Count Three of Plaintiff's Complaint are factually and legally insufficient and clearly do not establish the outrageous conduct necessary to support a claim for punitive damages. 20. Specific assertions in Count Three of PlaintiWs Complaint are as follows: 23. Eagle Freight, by using the trailer for improper purposes or using improper methodologies as aforesaid, and returning the trailer in a condition damaged and unuseable to Tri-State, has deprived Tri-State of its rights of ownership and use of the trailer. 24. Eagle Freight's return of the trailer in such a damaged and unuseable condition constitutes an outrageous indifference to the rights of Tri-State in its trailer. 25. Eagle Freight's deliberate and/or indifferent violation of the rights of Tri-State is evil and outrageous so as to warrant an award of punitive damages in favor of Tri-State and against Eagle Freight. 21. The aforementioned assertions in Count Three of Plaintiff's Complaint are conclusionary in nature and do not set forth with the required particularity the factual allegations that would show and/or infer that any acts of defendant Eagle were outrageous and done with a malicious intent or a willful state of mind. WHEREFORE, Defendant Eagle requests the Court to strike/dismiss Count Three of plaintiff's Complaint for failing to comply with the requirements ofPa. R.C.P. 1028(a)(3) and (4). MOTION TO STRIKE/DEMURRER Legal Insufficiency to support claim of punitive damages for breach of mere contractual duties - Count IH: 22. Plaintiff's claim against defendant Eagle arises from an alleged breach of contract. 23. Plaintiff's Complaint Counts One, Two and Three fail to state a claim upon which a cause of action would be founded on a breach of a duty imposed by social policy since plaintiffs claim rises from an alleged breach of the contract between the paff~es. Exhibit "B". 24. Plaintiff's claim for punitive damages is legally insufficiem since punitive damages will not be assessed for a breach of mere contractual duties. Daniels Adams Associates v. Rimbach Pub. Inc., Pa. Super., 429 A. 2d 726. (1981). 25. Plaintiff's claim for punitive damages is insufficient since the alleged tortious acts are duplicate assertions for plaintiff's claim for breach of contract and there can be no recovery where the only alleged tortious act was a breach of contract. Standard Pipe Line Coating Co. v. Solomon and Teslovich., 496 A.2d 840 (Pa. Super. 1985). WHEREFORE, Defendant Eagle requests the Court strike/dismiss Count Three of plainfnTs Complaint for failure to comply with the requirements ofPa. R.C.P. 1028(a)(3) and (4). JACK EMAS & ASSOCIATES DALE A. BETTY VERIFICATION DALE A. BETTY, ESQUIRE states that he is the attorney for the Defendant in the above matter; that the facts set forth in the foregoing PRELIMINARY OBJECTIONS are true and correct to the best of his knowledge, information and belief and that this statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DALE A. BETTY Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972-8065 TRI-STATE TRAILER LEASING, INC. EAGLE FREIGHT LINES¶ INC. Attomey for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P CERTIFICATION OF SERVICE I hereby certify that a tree and correct copy of defendant's Eagle Freight Lines, Inc.'s Preliminary Objections was served on the following by United States first class mail postage prepaid on the ,t?fi day of A~/~¢# z 2002 to the parties listed below: Peter F. Schuchman, Jr., Esquire 2640 Westview Drive P.O. Box 6286 Wyomissing, PA 19610 JACK EMAS & ASSOCIATES BY: DALE A. BETTY EXHIBIT "A" KOZLOFF ST'OUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON CUMBERLAND COUNTY, PA CIVIL ACTION - LAW : NO. 2001-05376P : : JURY TRIAL DEMANDED COMPLAINT NOTICE TO DEFEND TO: Eagle Freight Lines, Inc. 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyers' Referral Service of the Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 (800) 990-9108 1. The Plaintiff is Tri-State Trailer Leasing~ Inc., (hereinafter "Tri-State") a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 3111 Grand Avenue, Neville Island, Allegheny County, Pennsylvania 15225. 2. The Defendant is Eagle Freight Lines, Inc., (hereinafter Eagle Freight ) a corporation believed to be organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 835 Wyrmewood Road, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Tri-State and Eagle Freight are parties to a Lease Agreement dated July 8, 1999, (hereinafter "Lease Agreement") for the rental of a 1999 Trailmobile trailer, (hereinafter "Trailer") VIN X9016382. A copy of the Lease Agreement is attached hereto as Exhibit "A" and its contents are incorporated by reference herein as fully as though the same were set forth at length. 4. The Lease Agreement contains among others, the following material terms Lessee agrees to pay as rental the sum of ~30.00 per unit, per 4 week billing cycle, to be paid 15 days after the invoice date, hereafter until the completion of the lease, for a period of 6 months and the trailers have been returned in good condition. Loss or destruction of the trailers shall not abate the rental due. Plus $200 delivery charge. Lessee will be responsible for any damage to the trailer other than normal wear and tear. Lessee shall, at its own costs and expense procure and deliver to Lessor, simultaneously with or prior to delivery to Lessee of the trailers, and keep in full force and effect during the entire term of this Agreement, a Certificate of Insurance satisfactory to Lessor as to the insurer and as to the form and do eo amount of coverage with premiums prepaid thereon for the term of this Agreement, protecting Lessor against all loss and damages it may sustain or suffer because of the death of, injury to, or damage to property of any third person as a result of, in whole or in part, the use of the trailers while in the custody, possession, or control of Lessee with limits of $1,000,000. As to personal injury liability and $1,000,000. As to property damage liability. Single interest liability insurance protecting lessor only may be obtained by Lessor at the expenses of Lessee at a premium of not more than $100 per trailer for one year or less if Lessee does not provide the liability insurance described above, provided however, that Lessor is not required to purchase such insurance, and unless Lessor does purchase such single interest liability insurance, Lessee's obligations to procure insurance shall not be relieved or affect in any respect. Net/Net Lease - customer responsible for any and all maintenance to include tires and brakes. Trailer must terminate with 100% tires and brakes:per outgoing inspection report. A per 32na of tread wear on tire charge will be assessed as follows: $26.00/per 32na for radial tires and caps. Brakes will be charged as a percentage of wear from outgoing inspection report, based on $450.00 brake job. NO MILEAGE CHARGES. Lessee is not permitted to haul refuse/garbage nor hazardous waste materials. If it is determined that either has been hauled during the lease, lessee will be responsible to purchase the trailers at purchase option price located on schedule B. . Delinquency Charges: For each Rental payment or other sum due hereunder which is not paid when due, Lessee agrees to pay Lessor a delinquency charge calculated thereon at the rate of 1-1/2% per month for a period of delinquency provided that such a delinquency charge is not prohibited by law otherwise at the highest rate Lessee can legally obligate itself to pay and or Lessor can legally collect. 5. Eagle Freight made payments in connection with the Lease Agreement through the 4 week billing cycle ending on or about April 20, 2001. 3 6. On or about that date, Eagle Freight returned the Trailer to the premises of Tri-State Trailer Sales, Inc. in Lancaster County, Pennsylvania. 7. At the time Eagle Freight returned the Trailer, it was in a defective, damaged and unusable condition due to the fact that it had obviously been used to haul used or discarded batteries, the acid from which leaked and contaminated the Trailer. 8. The tires for the Trailer had also been worn by 24/32na of an inch at a unit price of $26.00 per 32nd. The purchase price for the Trailer as set forth in the Lease Agreement is $16,803.00. Rent for the Trailer continues to accrue at the rate of $300 per four week billing cycle until such time as Eagle Freight purchases the Trailer. 11. Tri-State issued to Eagle Freight numerous invoices representing ongoing rent charges, tire wear charges and the purchase price of the Trailer. 12. To date, Eagle Freight has failed and/or refused to pay the amount of the aforesaid invoices or any part thereof. 13. Tri-State has received an estimate of the costs to dispose of the Trailer in the amount of $970.00. 14. The charges imposed in connection with the aforesaid invoices are necessary, fair and reasonable and moreover are charges that Eagle Freight agreed to pay in connection with the Lease Agreement. 4 COUNT I BREACH OF CONTRACT 15. Plaintiffs incorporate by reference herein the contents of paragraphs one through fourteen inclusive, of this Complaint as fully as though the same were set forth at length. 16. Eagle Freight's return of the trailer before the expiration of the Lease Agreement and in a defective, contaminated and unusable condition constitutes a material breach of the Lease Agreement. 17. As a direct and proximate result of the terms of the Lease Agreement, Tri- State has suffered damages in the amount of $20,834.50 through November 4, 2001, will continue to suffer ongoing damages for unpaid rent at the rate of $300.00 per four (4) week billing cycle and disposal charges of $970.00. 18. Tri-State has fulfilled all conditions precedent to its recovery under the terms of the Lease Agreement. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $20,834.50, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT II NEGLIGENCE 19. Plaintiffs incorporate by reference herein the contents of paragraphs one through eighteen inclusive, of this Complaint as fully as though the same were set forth at length. 20. Eagle Freight owed a duty of reasonable care to Tri-State'in its possession and use of the Trailer during the term of the Lease Agreement. 21. Eagle Freight breached that duty of care in at least the following respects: a. Hauling improper materials; b. Improperly hauling materials that it knew or should have known could leak and contaminate the Trailer; Hauling materials in such a way so as to increase the risk of harm that they would leak and contaminate the trailer; d. Hauling materials in violation of applicable statutes, ordinances, codes or other regulations; e. Being inattentive; f. Failing to act with due regard for the rights of Tri-State upon the termination of the Lease Agreement; g. Failing to take appropriate steps to ensure that the materials hauled in the Trailer did not leak or otherwise contaminate the trailer; h. Being otherwise careless and negligent as further discovery and 6 investigation may reveal. 21. As a direct and proximate result of the negligence of Eagle Freight as aforesaid, Tri-State has sustained the damages set forth at length hereinabove. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount not in excess of $50,000.00, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT III CONVERSION 22. Plaintiffs incorporate by reference herein the contents of paragraphs one tkrough twenty-one inclusive, of this Complaint as fully as though the same were set forth at length. 23. Eagle Freight, by using the trailer for improper purposes or using improper methodologies as aforesaid, and returning the trailer in a condition damaged and unusable to Tri-State, has deprived Tri-State of its rights of ownership and use of the Trailer. 24. Eagle Freight's return of the Trailer in such a damaged an unusable condition constitutes an outrageous indifference to the rights of Tri-State in its Trailer. 25. Eagle Freight's deliberate and or indifferent violation of the rights of Tri- State is evil and outrageous so as to warrant an award of punitive damages in favor of Tri-State and against Eagle Freight. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. Dated: KOZLOFF STOUDT VERIFICATION The undersigned, having read the attached Complaint, hereby verifies that all averments of fact not appearing of record contained in the attached complaint are true and correct to the best of*,he under$igned'.$ personal knowledge or information and belief. To the extent that the Complaint is based on information provided to the undersigned by counsel, the undersigned has relied upon counsel in taking this verification. This verification is made subject to the penalties of 28 Pa. C.S. § 4904 relating to unsworn falsification to authorities. TRI-STATE TRAILER LEASING, INC. KOZLOFF STOUDT By: Peter F. Schuchrnan, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PA : CIVIL ACTION - LAW : NO. 2001-05376P : : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter F. Schuchrnan, Jr., Esquire, hereby certify that on March/_~ 2002, a copy of the attached Complaint was served upon the following parties via First Class Mail, postage prepaid: Eagle Freight Lines, Inc. At-tn: Earl Mumma, Jr., President 835 Wyrmewood Road Camp Hill, PA 17011 This Certificate is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. KOZLOFF STOUDT Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 EXHIBIT "B" T R I - STATE TRAILER LEASING INC. TRAILER LEASE AGREEMENT Tri-State Trailer Leasir(g. Inc., a Deiawara Corporation ("Lessor") does hereby let and lease to Eagle Freight Lines~'lnc. located at 835 Wynnewood Rd. Camp Hill PA~ 1701 I (Lessee") and Lessee does hereby hire erom Lessor upon the terms, covenants and conditions hereinafter stated file f~)llowing described personal property ("trailers"), viz.: MAKE MODEL SERIAL NO. UNIT# OTHER PROPERTY 1999 Trailnlobile Vail X90! 6382 48-5062 48' x 102" Spriag Lessee ackaowledges receipt of the trailers in good repair and working condition. Lessee agrees to pay as rental tile sum o¢$ 300.00 per unit. per4 week bi!ling cycle, to be paid 15 days al'ter the invoice date, hereatler until the completion &the lease, for a period of 6 moaths and the trailers have been returned in good condition, t,oss or destruction of the tnailers shall not abate the rental due. Plus $200 delivery charge. ,, Lessee shal[ reirnbarse Lessor for, or pay, any sales tax, use tax, or other tax based upoa this transaction or upon the ownership possession, use or operation of the trailers. This traasaction ii a rental and not a sale, coaditional or otherwise. Lessee does not acquire aay right, title, or interest ia or to these trailers. Lessee shall have right to possession and use of ON g ,trailer(s), so long aa this agreement continues in eft:eot and lessee shall not be in dei'hult ia per~'brnlance. "Associates Commercial Corp: has a security interest in this lease and ull rights, t'e~ts and monies hereua~er and tile property listed herein?' Ilhitial here: Lessee will be responsible fbr any damage to the trailer other than normal wear and tear. Lessee shall, at its owa cost sad expense procare and deliver to Lessor, simaltaneoualy with or prior to delivery to Lessee of the trailers, and keep in i"all force and effect during the entire tet'm of'this Agreement, a Certificate of Insurance satisfactory to Lessor as to the insurer and as to tile tbrm nad amount oi"coverage with premieres prepaid thereoa for the term of'this Agreement. protecting Lessor against all loss and damages it may sustain or suffer because oi" the death oi': injury to. or damage to property of any third person as a result oi'*, in whole or in part. the use of'tile trailers while in the custody, possessioa, or control of Lessee wkh limits $1,000,000. as to personal injury liability and $ ! ,000,000. as to property damage liability. Single interest liability insurance protecting lessor only may be obtained b3' Lessor at the expense of Lessee at a premium oi" not more than $100 per trailer i'br one year or less if Lessee does not provide the liability insurance described above, provided, however, that Lessor is sot required to purchase such insurance, and unless Lessor does purchase such single interest liability iasuraace, Lessee's obligations to procure insurance shall not be relieved or affected in LESSOR MAKES NO WARRANTY EXPRESSED OR IMPLI'ED AS 1'O THE FITNESS, MERCHANTABILITY. DESIGN, CONDITION CAPACITY. PERPORMANCE OR ANY OTHER ASPECT OF' THE TRAILERS OR TI-I EIR MATERIALS OR WORKMANSI41P. ALL NEW TRAILERS HAVE A LIMITED WARRANTY BY THE MANUFACTLJRER. ANY WARRANTY REPAIRS W,LL BE PROVIDED THROUGH Tri-State Trailer S~fles Initial here: TRI STATE II LANC. PA. 717 5GS 8~0S P..10/14 JUL-15-1999 lO. l[, 12. 13. 14. ~ailc~, ~hJch ~ ~ s~j~ of ~ a~cm~nL oar shall Less~'~ ped~anc~ b~ ass~gnabla~ In th? event L~aee fails to perform any of the mma.q or ;unditious ofthls Agreement at tho dm; i'aquirefl, or in the event Lessee becomes insolvent, ban 'kmpt, or othe~4.,~e trouble to perform its obligations, Lessee shall be deemed to be in del~ulr, and Lesser shall bear the absotu~e and unqualified right to either: (I) de;lure the balance of tho r~tal payable hereunder immediately dun and payable, or (2) r=uxke or raain [he railers without demand or legal process free of all ri~hta of Lessee and Lessee hereby authoriz~ Lessor or i~ or it~ agenh to mater upon the premises where the m~ilers ere located for the purpose of repoile~ing the same. Les;e; further au~odzes Lessor to place any property or ~oods stored in the trailers io public storage at the expense ef l.~see. Lessor will notify, no earlier than 30 days, before Le~or ~a~ action upon Lessee. Lesser reserves the right to cancel dals agreement on not less than thirty (30) days written notice. Lc~a:c's obligation to say fi.u'ther rental will cease lind L~ssee will pay to Lu~lor all rental accrued but unpaid and Lessor will refilnd m Lessee any renal paid in adp. anco for any period beyond the date of the return of the trailers. Net/Net Lease- customer respons~le for any and all maintenance to includ0 tires end brakes. Trailer mu~t terminate with 100% tire.~ and bmkci per outgoing inspe?tion report. p~r 32~,d of tread wear on tire charge will be a~s~scd as follows: $26.00/per 32.a for radial tires and caps. Brakes will be charged as a percentage of wear from outgoing gasp;cleon report, hasefl on $450.00 brake job, NO MILEAGE CFL~RGES Repairs: In thc event o£rep~firable damage to any part of any t'raller, Lessee shall rem~/.n liable for all trailer rental charges even though the trailer is unusable. Lessee may ~ave the same repaired by any cornpemm per, on, firm or corporation s~ it's own expense, or upon notice and delivery to Lessor, Lessor may r~pair said trailer £or Le~see, using rea~onable diligetlce to make said repairs or raplazem~nt in the shortest possJbJe time. Lessee a~'ees to pay the mount Oar.ged by Lessor ~or any material or labor to make said r~/.~ Lessee agrees to m'ompdy and timely pay all eh:~rges tar repairs or ma/.n~enanoc to the leased E~ipment a~d m suffer no lien for labor, material, or storage lo be filed or a~tachad to said Equipmeng La~sor may, at ia own option, rehse to fie any ~epsir work on any trailer in time of strike, or if in tho opinion of Lessor are not advllable. /.~see shall not make, suitor or purmi[ any unlawful use or h~dllng of said leased Equil:rmem. Lessee shall not. without Leasor's prior ,.wilton con.sore thereto, make or suffer any changes, elterahons or imprevemm~s in o¢ to said lea~:d Equipmem or remove i'heret¥om a.:y par'a, a:cessories, saschrncnt.~ or other equipm~t. Lessee Is not permitted to haul refuse/garbage nor hazardous waste materials. If it is determ/ned that either has been hauled during the lease, lessee will be responsible to parable the trailers a~' purchase option price located on schedule B. Delinquene'y Charges: For each Rental payment or other sum due hereunder which is not paid when due, Lesscm agrees tu pay Le~or a delinquency charge calculator thereon at the rile of 1- 1/2% per month ~r the period o~ delinquency provided that such a delinquency charge is not p oh~tted by law mherw~se at the highest race Lessee =an legally obliea~ itself to pay and Lessor can legally collect. . or 09:18 TRI STATE II LANC. PA. 717 569 8309 P.09/I4 TRI ST.qTE II LF~NC. P~q. 71'7 ~8~ 8~9 ~.11/1~ ~UL-15-1999 o9:17 15. payment Schedule A oufli~.s fi'~ payment schedule. This imf'amen! cc, nl~,ims the ~'nt~ agreement between the parties and shall in.~ure lo tl~e benefil of the bind the heks. exeauto~, adminisu.ator~, successors and assign~ o tthe pardes. No agreements, repr~entations ar undc~mr~lings not ipeei£celly contained hex°in shall be binding uplm any of Ihe puni~s unless reduced to writing anti signed by at pardes. IN WITNESS WHEREOF, fl~a l~ies have e,xeeute~ tiffs agreement this S" flay of J~y 1999. 835 Wynnt~wood Fid. Camp Hill, PA 1701 TRI-~,~.T.,E T~Ii~ER LE.a~ING, INC (Signature of Authorized Agent) Le~.sing Manager (Title) 2'UL-15-1999 09:15 ' LEA SE-AOi:CEEM'E]qT P~ym~nt S;~edu]e "A~ I 7118t09 i $300.00, 2 8/I 31gg $300.00 3 g/10199 $300,00 4 10/8/99 $300.00 5 1115199 $300.00 6 12./3/9.~ $;300.00 7 12/31/90 $300.00 8 1/'28/00 '=9 2/25/00 10 3124/00 12 511 glO0 13 6/16/OO 14 7/14/00 16 918100 17 10/6/00 20 12/28/00 22 2123101 23 3/23/01 24 4t20/01 25 3/18/01; 26 6ilS/01 27 7/13/01 30 10/5/01 32 11/30/01 33 12/28/01 34 1125/02 35 2/22/02 36 3/22_/02 37 38 39 40 J~' 717 5~9 8;~9 P..04/14 (1)1995 TIM 48' X 103" 8PRIN{3 RIDE VAN X9015382 Td~tate Trailer Leasirl~]~ Inc, Leasing Manaiter~ ,._~le Freight Llnes~ Int.. JUL-13-1999 17:27 TRi-STATE TRRILERSALES 412 777 4818 P.83 KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 2001-05376P JURY TRIAL DEMANDED AMENDED COMPLAINT NOTICE TO DEFEND TO: Eagle Freight Lines, Inc. 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyers' Referral Service of the Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 (800) 990-9108 1. The Plaintiff is Tri-State Trailer Leasing, Inc., (hereinafter "Tri-State") a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 3111 Grand Avenue, Neville Island, Allegheny County, Pennsylvania 15225. 2. The Defendant is Eagle Freight Lines, Inc., (hereinafter "Eagle Freight") a corporation believed to be organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 835 Wynnewood Road, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Tri-State and Eagle Freight are parties to a Lease Agreement dated July 8, 1999, (hereinafter "Lease Agreement") for the rental of a 1999 Trailmobile trailer, (hereinafter "Trailer") VIN X9016382. A copy of the Lease Agreement is attached hereto as Exhibit "A' and its contents are incorporated by reference herein as fully as though the same were set forth at length. 4. The Lease Agreement contains among others, the following material terms: a. Lessee agrees to pay as rental the sum of $300.00 per unit, per 4 week billing cycle, to be paid ]5 days after the invoice date, hereafter until the completion of the lease, for a period of 6 months and the trailers have been returned in good condition. Loss or destruction of the trailers shall not abate the rental due. Plus $200 delivery charge. b. Lessee will be responsible for any damage to the trailer other than normal wear and tear. Lessee shall, at its own costs and expense procure and deliver to Lessor, simultaneously with or prior to delivery to Lessee of the trailers, and keep in full force and effect during the entire term of this Agreement, a Certificate of Insurance satisfactory to Lessor as to the insurer and as to the form and amount of coverage with premiums prepaid thereon for the term of this 2 Agreement, protecting Lessor against all loss and damages it may sustain or suffer because of the death of, injury to, or damage to property of any third person as a result of, in whole or in part, the use of the trailers while in the custody, possession, or control of Lessee with limits of $1,000,000. As to personal injury liability and $1,000,000. As to property damage liability. Single interest liability insurance protecting lessor only may be obtained by Lessor at the expenses of Lessee at a premium of not more than $100 per trailer for one year or less if Lessee does not provide the liability insurance described above, provided however, that Lessor is not required to purchase such insurance, and unless Lessor does purchase such single interest liability insurance, Lessee's obligations to procure insurance shall not be relieved or affect in any respect. Net/Net Lease - customer responsible for any and all maintenance to include tires and brakes. Trailer must terminate with 100% tires and brakes per outgoing inspection report. A per 32na of tread wear on tire charge will be assessed as follows: $26.00/per 32na for radial tires and caps. Brakes will be charged as a percentage of wear from outgoing inspection report, based on $450.00 brake job. NO MILEAGE CHARGES. Lessee is not permitted to haul refuse/garbage nor hazardous waste materials. If it is determined that either has been hauled during the lease, lessee will be responsible to purchase the trailers at purchase option price located on schedule B. Delinquency Charges: For each Rental payment or other sum due hereunder which is not paid when due, Lessee agrees to pay Lessor a delinquency charge calculated thereon at the rate of 1-1/2% per month for a period of delinquency provided that such a delinquency charge is not prohibited by law otherwise at the highest rate Lessee can legally obligate itself to pay and or Lessor can legally collect. 5. Eagle Freight made payments in connection with the Lease Agreement through the 4 week billing cycle ending on or about April 20, 2001. 6. On or about that date, Eagle Freight returned the Trailer to the premises 3 of Tri-State Trailer Sales, Inc. in Lancaster County, Pennsylvania. 7. At the time Eagle Freight returned the Trailer, it was in a defective, damaged and unusable condition due to the fact that it had been used to haul hazardous materials, including used or discarded batteries, the acid from which leaked and contaminated the Trailer. 8. The tires for the Trailer had also been worn by 24/32na of an inch at a unit price of $26.00 per 32nd. The purchase price for the Trailer as set forth in the Lease Agreement is $16,803.00. 10. Rent for the Trailer continues to accrue at the rate of $300 per four week billing cycle until such time as Eagle Freight purchases the Trailer. 11. Tri-State issued to Eagle Freight numerous invoices representing ongoing rent charges, tire wear charges and the purchase price of the Trailer. 12. To date, Eagle Freight has failed and/or refused to pay the amount of the aforesaid invoices or any part thereof. 13. Tri-State has received an estimate of the costs to dispose of the Trailer in the amount of $970.00. 14. The charges imposed in connection with the aforesaid invoices are necessary, fair and reasonable and moreover are charges that Eagle Freight agreed to pay in connection with the Lease Agreement. 4 COUNT I BREACH OF CONTRACT 15. Plaintiffs incorporate by reference herein the contents of paragraphs 1 through 14 inclusive, of this Amended Complaint as fully as though the same were set forth at length. 16. Eagle Freight's return of the trailer before the expiration of the Lease Agreement and in a defective, contaminated and unusable condition constitutes a material breach of the Lease Agreement. 17. As a direct and proximate result of the terms of the Lease Agreement, Tri- State has suffered damages in the amount of $20,834.50 through November 4, 2001, will continue to suffer ongoing damages for unpaid rent at the rate of $300.00 per four (4) week billing cycle and disposal charges of $970.00. 18. Tri-State has fulfilled all conditions precedent to its recovery under the terms of the Lease Agreement. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $20,834.50, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT II NEGLIGENCE 19. Plaintiffs incorporate by reference herein the contents of paragraphs 1 through 18 inclusive, of this Amended Complaint as fully as though the same were set forth at length. 20. Eagle Freight owed a duty of reasonable care to Tri-State in its possession and use of the Trailer during the term of the Lease Agreement. 21. Eagle Freight breached that duty of care in at least the following respects: a. Hauling improper materials; b. Improperly hauling materials that it knew or should have known could leak and contaminate the Trailer; c. Hauling materials in such a way so as to increase the risk of harm that they would leak and contaminate the trailer; d. Not noticing the effects of leaking battery acid on the Trailer as well as on the ground upon which the Trailer traveled and/or was stored; e. Not remedying the effects of leaking battery acid on the Trailer as well as on the ground upon which the Trailer traveled and/or was stored; f. Causing or permitting the Trailer to become contaminated and/or otherwise damaged by battery acid; g. Agreeing to haul batteries when it knew or should have known of their propensity to leak and cause damage to the containers in which they were stored, including the Trailer. 21. As a direct and proximate result of the negligence of Eagle Freight as aforesaid, Tri-State has sustained the damages set forth at length hereinabove. 22. As a further direct and proximate result of the negligence of Eagle Freight as 6 aforesaid, Tri-State, has been prevented from re-leasing the Trailer for profit. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount not in excess of $50,000.00, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT III FRAUD 23. Plaintiffs incorporate by reference herein the contents of paragraphs 1 through 22, inclusive, of this Amended Complaint as fully as though the same were set forth at length. 24. Tri-State believes and therefore avers that prior to entering into the Lease Agreement, Eagle Freight knew that it intended to use the Trailer for purposes of hazardous materials, including used batteries, which Eagle Freight knew had the propensity to leak and damage the containers in which they were stored, including the Trailer. 25. Tri-State believes and therefore avers that Eagle Freight deliberately concealed from Tri-State its intended purpose of using the Trailer to haul hazardous materials to induce Tri-State to lease the Trailer because Eagle Freight expected that Tri- State would not have leased the Trailer to Eagle Freight had it known that Eagle Freight intended to haul hazardous materials. 26. Tri-State believes and therefore avers that Eagle Freight, at the time it entered into the Lease, never intended to purchase the Trailer and acted in knowing or reckless disregard of the consequences, including damage to the Trailer beyond repair, of hauling hazardous materials, including used batteries. 27. Tri-State relied to its detriment on Eagle Freight's concealment of the fact that it intended to use the Trailer to haul hazardous materials because it leased the Trailer to Eagle Freight. 28. Eagle Freight's actions to induce Tri-State to lease the Trailer to it, as aforesaid, were deliberate, malicious and borne of evil motive so as to justify an award of punitive damages to deter Eagle Freight and others from committing such acts in the future. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT IV CONVERSION 29. Plaintiff incorporates by reference herein the contents of paragraphs 1 tlxrough 28, inclusive, of this Amended Complaint as fully as though the same were set forth at length. 30. Eagle Freight, by using the Trailer for improper purposes or using improper methodologies as aforesaid, and returning the Trailer in a condition damaged and unusable to Tri-State, has deprived Tri-State of its rights of ownership and use of the Trailer, including but not limited to causing Tri-State a loss of profits resulting from Tri- State being unable to lease the Trailer to any other entities. 31. Tri-State believes and therefore avers that Eagle Freight intentionally and with wilful and wanton disregard of the rights of Tri-State in its Trailer, induced Tri-State to enter into the Lease, took possession of the Trailer, intentionally hauled materials it knew, or reasonably expected would damage the Trailer and, rather than purchasing the Trailer returned the Trailer to Tri-State in a damaged and unusable condition. 32. Tri-State believes and therefore avers that Eagle Freight's deliberate and/or indifferent violation of the rights of Tri-State was deliberate, malicious and borne of evil motive so as to justify an award of punitive damages to deter Eagle Freight and others from committing such acts in the future. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. KOZLOFF STOUDT Peter F. Schuchman, Jr., Esquire Attorney ID# 69343 Attorney for Plaintiff ~PR-12-2802 10:00 TRI STATE TRL SALES 412 3~i 7025 P.02 VERIFICATION The undersigned, having read the attached Amended Complaint, hereby verifies that all averments of fact not appeo_ring of record contained in the attached complaint are t~'ue and correct to the best of the undersigned's personal knowledge or information and belief. To the extent that the Complaint is based on irrformation provided to the undersigned by counsel, the undersigned has relied upon counsel in taking this verification. This verification is made subject to the penalties of 28 Pa. C.S. § 4904 relating to unsworn falsification to authorities. TRI-STATE TRAILER LEASING, INC. TOTAL P.02 TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW : NO. 2001-05376P : : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter F. Schuchman, Jr., Esquire, hereby certify that on April 15, 2002, a copy of the attached Amended Complaint was served upon the following parties via First Class Mail, postage prepaid: Dale A. Betty, Esquire 3130 Center Square West 1500 Market Street Philadelphia, PA 19102 Attorney for Defendant This Certificate is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. KOZLOFF STOUDT Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 Attorneys For Defendant KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 2001-05376P JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification bearing the original signature of Frank Mancino, President of Tri-State Trailer Leasing, Inc., attached to the Complaint. KOZLOFF STOUDT Dated: April 16, 2002 VERIFICATION The undersigned, having read the attached Amended Complaint, hereby verifies that all averments of fact not appearing of record contained in the attached complaint are true and correct to the best of the undersigned's personal knowledge or information and belief. To the extent that the Complaint is based on information provided to the undersigned by counsel, the undersigned has relied upon counsel in taking this verification. This verification is made subject to the penalties of 28 Pa. C.S. § 4904 relating to unsworn falsification to authorities. TRI-STATE TRAILER LEASING, INC. KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PA : CIVIL ACTION - LAW : NO. 2001-05376P JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter F. Schuchman, Esquire, attorney for Plaintiff, certifies that on ~ '~3132, a copy of the attached Praecipe to Substitute Verification was served upon the following party by first class mail, postage prepaid: Dale A. Betty, Esquire 3130 Center Square West 1500 Market Street Philadelphia, PA 19102 Attorney for Defendant This Certificate is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. KOZLOFF STOUDT Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Cemer Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972-8065 TRI-STATE TRAILER LEASING, : INC. : EAGLE FREIGHT LINES, INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P ORDER AND NOW, this day of ,2002 upon consideration of the preliminary objections of defendant Eagle Freight Lines, Inc. with Memorandum of Law and any responses thereto, it is hereby ORDERED that the Preliminary Objections are sustained as follows: 1. Count Two of Plaintiff's Amended Complaint is stricken; 2. Count Three of Plaintiff's Amended Complaint is stricken; 3. Count Four of Plaintiff's Amended Complaint is slxicken; IN THE ALTERNATIVE 4. The punitive damage claim, Count Three ofplaintiWs Amended Complaint is stricken; 5. The punitive damage claim, Count Four of plaintiffs Amended Complaint is stricken; BY THE COURT: Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvama 19102 (215) 972-8065 TRI-STATE TRAI~ER LEASING, INC. EAGLE FREIGHT LINES, INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P PRELIMINARY OBJECTIONS OF DEFENDANT EAGLE FREIGHT LINES, INC., TO PLAINTIFF'S AMENDED COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(2), (3) and (4) IN THE NATURE OF A MOTION TO STRIKE AND AS A DEMURRER 1. Plaintiff, Tri-State Trailer Leasing, Inc., (Tri-State) instituted the present action by Writ of Summons. On March 18, 2002, the Complaint was filed and defendant, Eagle Freight Lines, Inc., (Eagle) was served the same day. 2. Defendant Eagle filed preliminary objections to the Complaint and thereafter on April 16, 2002 was served with an amended Complaint. A copy of plaintiffs Amended Complaint is attached hereto, incorporated by reference and marked Exhibit "A'. 3. PlaintiffTri-State and defendant Eagle entered into a contract for the lease/rental of daintiff's trailmobile trailer (trailer). A copy of the contract/lease agreement is attached hereto, incorporated herein by reference and marked Exhibit "B". 4. The amended Complaint alleges four causes of action: pursuant to the provisions of the lease agreement, Tri-State has claimed money damages for breach of contract, Count One, for defendant Eagle returning the trailer in a damaged condition; a corresponding negligence claim, Count Two, a corresponding fraud claim, Count III as well as a corresponding conversion claim, Count IV. 5. Pa.R.C.P. 1028(a)(2) permits preliminary objections for, among other things, a failure of a pleading to conform to law, §1028(a)(3) permits preliminary objections for insufficient specificity in a pleading whereas § 1028(a)(4) allows preliminary objections for legal insufficiency of a pleading. 6. Pa.R.C.P. 1019(a) requires a pleading to contain material facts on which a cause of action is based. MOTION TO STRIKE/DEMURRER Factual and legal insufficiency to support claim of Negligence- Count 7. Plaintiff's Amended Complaint, Count Two, alleges defendant Eagle's conduct was negligent and breached its duty of reasonable care to plaintiff:in its possession and use of the trailer during the term of the contractual lease agreement. 8. The rights, duties and remedies of the parties is as set forth in the contract, Exhibit "B", thus Tri-State's claim is based on a breach of contract. 9. PlaintiffTri-State's claim for negligence is a tort action and basically is a duplicate claim for the underlying breach of contract action. 10. PlalntilTs claim for negligence is set forth in paragraph 21, Count Two, and states that Eagle breached the duty of care as follows: (a) hauling improper materials; (b) improperly hauling materials that it knew or should have known could leak and contaminate the trailer; (c) hauling materials in such a way so as to increase the risk of harm that they would leak and contaminate the trailer; (d) not noticing the effects of leaking battery acid on the trailer as well as on the ground upon which the trailer travelled and/or was stored; (e) not remedying the effects of leaking battery acid on the trailer as well as on the ground upon which the trailer travelled and/or was stored: (f) causing or permitting the trailer to become contaminated and/or otherwise damaged by battery acid; (g) agreeing to haul batteries when it knew or should have known of their propensity to leak and cause damage to the containers in which they were stored, including the trailer. 11. A tort action cannot be maintained when it, in effect, duplicates the primary claim of breach of contract, thus the tort claim is barred by the "gist of the action" doctrine since it is legally insufficient being a negligent performance of contractual duties. Bash v. Bell Telephone Co., 601 A.2d 825 (Pa. Super. 1992). 12. The economic losses alleged in the tort negligence claim are identical to the economic losses alleged in the breach of contract claim and since the "gist of the action" doctrine cannot be evaded by the mere expedient of pleading the negligence acts when plaintiff's claim is premised on the terms of contractual conditions, the negligent claim is legally insufficient. WHEREFORE, Defendant Eagle requests the Court to strike/dismiss Count Two of plaintiff's Amended Complaint for being legally insufficient pursuant to Pa.R.C.P. 1028(a)(4). MOTION TO STRIKE/DEMURRER Factual and legal insufficiency to support claim of fraud - Count Iff: 13. Plaintiff's Amended Complaint, Count Three, alleges that defendant Eagle's conduct was fraudulent in that it knew prior to entering into the lease agreement that it would not comply with all of the provisions/terms of the lease agreement. 14. Plaintiff Tri-State's tort claim of fraud is basically a duplicate claim for the underlying breach of contract action. 15. Tri-State's claim for fraud is set forth in paragraphs 24-28 and summarily the allegations are that Eagle knew that it: (i) Intended to use the trailer for purposes of hazardous materials, including batteries - ¶24; (ii) Intentionally concealed its intentions from plaintiff- ¶25; (iii) Would never purchase the trailer - ¶26; (iv) That Tri-State relied on the concealment and entered into the lease - ¶27; (v) That Eagle's action was deliberate, malicious and borne of evil motive requiring punitive damages - ¶28. 16. The lease agreement provided that "Lessee is not permitted to haul refuse/garbage nor hazardous waste materials. If it is determined that either has been hauled during the lease, lessee will be responsible to purchase the trailer at purchase option price located on schedule B (Exhibit "B" - lease ¶13). 17. The fraud claim is essentially another way of stating the breach of contract claim, that is, Eagle breached the contract by falling to comply with paragraph 13, not to haul hazardous waste materials, batteries, that leaked, causing damage requiring Eagle to purchase the trailer. 18. The terms of the lease agreement are not collateral to the fraud count thus the tort claim of fraud is barred by the "gist of the action" doctrine since it is legally insufficient due to the fraud count sounding in contract. 19. Since the "gist of the action" doctrine cannot be evaded by the mere expedient of pleading a fraud claim which reveals that the gist of the count as well as plaintiff's claim is that Eagle breached its obligations under the terms of the contract, the fraud claim is legally insufficient. WHEREFORE, Defendant Eagle requests the Court to strike/dismiss Count Three of Plaintiff's Amended Complaint for being legally insufficient pursuant to Pa.R.C.P. 1028(a)(4). MOTION TO STRIKE/DEMURRER Factual and Legal Insufficiency to support claim for conversion - Count Four 20. PlaintifFs Amended Complaint, Count Four, alleges that defendant Eagle returned the trailer to plaintiff in a damaged and unuseable condition which was a breach of Eagle's duty to Tri- STATE since it, contrary to the lease agreement, hauled material which caused damage, thus depriving Tri-State of its rights of ownership, use, profits which conduct was deliberate, malicious and borne of evil motive requiring punitive damages. 21. The rights, duties and remedies of the parties is as set forth in the contract, Exhibit "B", thus Th-State's claim is based on a breach of contract. 22. Plaintiff Tri-State's claim for conversion is a tort action and basically is a duplicate claim for the underlying breach of contract action. 23. A tort action cannot be maintained when it, in effect, duplicates the primary claim of breach of contract, thus the conversion claim is barred by the "gist of the action" doctrine since it is legally insufficient being a negligent performance of contractual duties. Bash v. Bell Telephone Co., 601 A.2d 825 (Pa. Super. 1992). 24. The economic losses alleged in the conversion claim are substantially identical to the economic losses alleged in the breach of contract claim and since the "gist of the action" doctrine cannot be evaded by the mere expedient of pleading tort conversion acts when plaintiff's claim is premised on the terms of contractual conditions, the conversion claim is legally insufficient. WHEREFORE, Defendant Eagle requests the Court to strike/dismiss Count Four of plaintiffs Amended Complaint for being legally insufficient pursuant to Pa.R.C.P. 1028(a)(4). MOTION TO STRIKE/DEMURRER Legal Insufficiency to support a claim of punitive damages for breach of mere contractual duties - Count Three and Count Four 25. Plaintiff's claim against defendant Eagle arises from an alleged breach of contract. 26. PlalntiWs Amended Complaint, Counts One, Two, Three and Four fall to state a claim upon which a cause of action would be founded on a breach of a duty imposed by social policy since plaintiWs claim arises from an alleged breach of the contract between the parties. Exhibit 27. PlaintiWs claim for punitive damages is legally insufficient since punitive damages will not be assessed and are not recoverable for a breach of mere contractual duties. Daniels Adams Associates v. Rimbach Pub. Inc., Pa. Super. 429 A.2d 726 (1981). 28. Plaintiff's claim for punitive damages is insufficient since the alleged tortious acts are duplicate assertions for plaintiff s claim for breach of contract and there can be no recovery where the only alleged tortious act was a breach of contract. Standard Pipe Line Coating Co. v. Solomon and Teslovicho 496 A.2d 840 (Pa. Super. 1985). WHEREFORE, Defendant Eagle requests the Court to strike/dismiss Counts Three and Four of plalntiWs Amended Complaint for failure to comply with the requirements ofPa. R.C.P. 028(a)(3) and (4). MOTION TO STRIKE/I)EMIJRRER Factual and Legal Insufficiency to support claim of punitive damages ~ Count Three and Count Four 29. PlaintiffTri-State's amended Complaint, Count One, sets forth the basis of its claim, a private contract (Exhibit "B"), whose terms define the obligations of plaintiff Tri-State and defendant Eagle. 30. Counts Three and Four of Plaintiffs Amended Complaint request punitive damages which fails to state a claim upon which relief can be granted since punitive damages cannot be recovered merely for a breach of contract. 31. Count Three and Four of Plainti~s Amended Complaint request punitive damages without asserting any facts of outrageous conduct of defendant Eagle and the general averments are conclusionary in nature and do not set forth with the required parfcularity the factual allegations that would show and/or infer that defendant Eagle acted with a malicious, willful state of mind. 32. Counts Three and Four of plaintiff's Amended Complaint request punitive damages without asserting any facts of any duty imposed by society that defendant Eagle may have breached in addition to the rights, duties and obligations of the contract between the parties. 33. Pa.R.C.P. 1019(a) provides that the Complaint shall set forth material facts in support of plaintiff's claim and in this instance punitive damages. 34. The assertions in Counts Three and Four of plaintiff's Amended Complaint are factually and legally insufficient and clearly do not establish the outrageous conduct necessary to support a claim for punitive damages. 35. The specific assertions in Count Three of plaintiff's Amended Complaint are as follows: 24. Tri-State believes and therefore avers that prior to entering into the lease agreement, Eagle Freight knew that it intended to use the trailer for purposes of hazardous materials, including used batteries, which Eagle Freight knew had the propensity to leak and damage the containers in which they were stored, including the trailer. 25. Tri-State believes and therefore avers that Eagle Freight deliberately concealed from Tri-State its intended purpose of using the trailer to haul hazardous materials to induce Tri-State to lease the trailer because Eagle Freight expected that Tri-State would not have leased the trailer to Eagle Freight had it known that Eagle Freight intended to haul hazardous materials. 26. Tri-State believes and therefore avers that Eagle Freight, at the time it entered into the lease, never intended to purchase the trailer and acted in knowing or reckless disregard of the consequences, including damage to the trailer beyond repair, of hauling hazardous materials, including use batteries. 27. Tri-State relied to its detriment on Eagle Freight's concealment of the fact that it intended to use the trailer to haul hazardous materials because it leased the trailer to Eagle Freight. 28. Eagle Freight's actions to induce Tri-State to lease the trailer to it, as aforesaid, were deliberate, malicious and borne of evil motive so as to justify an award of punitive damages to deter Eagle Freight and others from committing such acts in the future. 36. The specific assertions in Count Four ofplalntiWs Amended Complaint are as follows: 30. Eagle Freight, by using the trailer for improper purposes or using improper methodologies as aforesaid, and returning the trailer in a condition damaged and unuseable to Tri-State, has deprived Tri-State of its rights of ownership and use of the trailer, including but not limited to causing Tri-State a loss of profits resulting fi.om Tri-State being unable to lease the trailer to any other entities. 31. Tri-STATE believes that therefore avers that Eagle Freight intentionally and with willful and wanton disregard of the rights of Tri-State in its trailer, induced Tri-State to enter into the lease, took possession of the trailer, intentionally hauled materials it knew, or reasonably expected would damage the trailer and, rather than purchasing the trailer returned the trailer to Tri-STATE in a damaged and unuseable condition. 32. Tri-STATE believes that therefore avers that Eagle Freight's deliberate and/or indifferent violations of the rights of Th-State was deliberate, malicious and borne of evil motive so as to justify an award of punitive damages to deter Eagle Freight and others from committing such acts in the future. 37. The aforementioned assertions in Counts Three and Four ofplaintiWs Amended Complaint are conclusionary in nature and do not set forth with the required particularity the factual allegations that would show and/or infer that any acts of defendant Eagle were outrageous and done with any malicious intent or a willful state of mind WHEREFORE, Defendant Eagle requests the Court to strike/dismiss Count Three and Count Four of plaintilTs Amended Complaint for failing to comply with the requirements of Pa.R.C.P. 1028(a)(3) and (4). JACK EMAS & ASSOCIATES BY: DALE A. BETTY EXHIBIT "A" KOZLOEF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PA : CIVIL ACTION - LAW : NO. 2001-05376P JURY TRIAL DEMANDED AMENDED COMPLAINT NOTICE TO DEFEND TO: Eagle Freight Lines, Inc. 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyers' Referral Service of the Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 (800) 990-9108 1. The Plaintiff is Tri-State Trailer Leasing, Inc., (hereinafter "Tri-State") a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 3111 Grand Avenue, Neville Island, Allegheny County, Pennsylvania 15225. 2. The Defendant is Eagle Freight Lines, Inc., (hereinafter "Eagle Freight") a corporation believed to be organized and doing business under the laws of the Commonwealth of Pennsylvania having an address and principal place of business at 835 Wynnewood Road, Camp Hill, Cumberland County, Pennsylvania 17011. Tri-State and Eagle l~reight are parties to a Lease Agreement dated July 8, 1999, (hereinafter "Lease Agreement") for the rental of a 1999 Trailmobile trailer, (hereinafter "Trailer") VIN X9016382. A copy of the Lease Agreement is attached hereto as Exhibit 'A" and its contents are incorporated by reference herein as fully as though the same were set forth at length. 4. The Lease Agreement contains among others, the following material terms: Lessee agrees to pay as rental the sum of $300.00 per unit, per 4 week billing cycle, to be paid ]5 days after the invoice date, hereafter until the completion of the lease, for a period of 6 months and the trailers have been returned in good condition. Loss or destruction of the trailers shall not abate the rental due. Plus $200 delivery charge. Lessee will be responsible for any damage to the trailer other than normal wear and tear. Lessee shall, at its own costs and expense procure and deliver to Lessor, simultaneously with or prior to delivery to Lessee of the trailers, and keep in full force and effect during the entire term of this Agreement, a Certificate of Insurance satisfactory to Lessor as to the insurer and as to the form and amount of coverage with premiums prepaid thereon for the term of this 2 Agreement, protecting Lessor against all loss and damages it may sustain or suffer because of the death of, injury to, or damage to property of any third person as a result of, in whole or in part, the use of the trailers while in the custody, possession, or control of Lessee with limits of $1,000,000. As to personal injury liability and $1,000,000. As to property damage liability. Single interest liability insurance protecting lessor only may be obtained by Lessor at the expenses of Lessee at a premium of not more than $100 per trailer for one year or less if Lessee does not provide the liability insurance described above, provided however, that Lessor is not required to purchase such insurance, and unless Lessor does purchase such single interest liability insurance, Lessee's obligations to procure insurance shall not be relieved or affect in any respect. Net/Net Lease - customer responsible for any and all maintenance to include tires and brakes. Trailer must terminate with 100% tires and brakes per outgoing inspection report. A per 32nd of tread wear on tire charge will be assessed as follows: $26.00/per 32"d for radial tires and caps. Brakes will be charged as a percentage of wear from outgoing inspection report, based on $450.00 brake job. NO MILEAGE CHARGES. Lessee is not permitted to haul refuse/garbage nor hazardous waste materials. If it is determined that either has been hauled during the lease, lessee will be responsible to purchase the trailers at purchase option price located on schedule B. Delinquency Charges: For each Rental payment or other sum due hereunder which is not paid when due, Lessee agrees to pay Lessor a delinquency charge calculated thereon at the rate of 1-1/2% per month for a period of delinquency provided that such a delinquency charge is not prohibited by law otherwise at the highest rate Lessee can legally obligate itself to pay and or Lessor can legally collect. 5. Eagle Freight made payments in connection with the Lease Agreement through the 4 week billing cycle ending on or about April 20, 2001. 6. On or about that date, Eagle Freight returned the Trailer to the premises of Tri-State Trailer Sales, Inc. in Lancaster County, Pennsylvania. 7. At the time Eagle Freight returned the Trailer, it was in a defective, damaged and unusable condition due to the fact that it had been used to haul hazardous materials, including used or discarded batteries, the acid from which leaked and contaminated the Trailer. 8. The tires for the Trailer had also been worn by 24/32na of an inch at a unit price of $26.00 per 32ha. 9. The purchase price for the Trailer as set forth in the Lease Agreement is $16,803.00. 10. Rent for the Trailer continues to accrue at the rate of $300 per four week billing cycle until such time as Eagle Freight. purchases the Trailer. 11. Tri-State issued to Eagle Freight numerous invoices representing ongoing rent charges, tire wear charges and the purchase price of the Trailer. 12. To date, Eagle Freight has failed and/or refused to pay the amount of the aforesaid invoices or any part thereof. 13. Tri-State has received an estimate of the costs to dispose of the Trailer in the amount of $970.00. 14. The charges imposed in connection with the aforesaid invoices are necessary, fair and reasonable and moreover are charges that Eagle Freight agreed to pay in connection with the Lease Agreement. COUNT I BREACH OF CONTRACT 15. Plaintiffs incorporate by reference herein the contents of paragraphs 1 through 14 inclusive, of this Amended Complaint as fully as though the same were set forth at length. 16. Eagle Freight's return of the trailer before the expiration of the Lease Agreement and in a defective, contaminated and unusable condition constitutes a material breach of the Lease Agreement. 17. As a direct and proximate result of the terms of the Lease Agreement, Tri- State has suffered damages in the amount of $20,834.50 through November 4, 2001, will continue to suffer ongoing damages for unpaid rent at the rate of $300.00 per four (4) week billing cycle and disposal charges of $970.00. 18. Tri-State has fulfilled all conditions precedent to its recovery under the terms of the Lease Agreement. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $20,834.50, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT II NEGLIGENCE 19. Plaintiffs incorporate by reference herein the contents of paragraphs 1 through 18 inclusive, of this Amended Complaint as fully as though the same were set 5 forth at length. 20. Eagle Freight owed a duty of reasonable care to Tri-State in its possession and use of the Trailer during the term of the Lease Agreement. 21. Eagle Freight breached that duty of care in at least the following respects: a. Hauling improper materials; b. Improperly hauling materials that it knew or should have known could leak and contaminate the Trailer; c. Hauling materials in such a way so as to increase the risk of harm that they would leak and contaminate the trailer; d. Not noticing the effects of leaking battery acid on the Trailer as well as on the ground upon which the Trailer traveled and/or was stored; e. Not remedying the effects of leaking battery acid on the Trailer as well as on the ground upon which the Trailer traveled and/or was stored; f. Causing or permitting the Trailer to become contaminated and/or otherwise damaged by battery acid; g. Agreeing to haul batteries when it knew or should have known of their propensity to leak and cause .damage to the containers in which they were stored, including the Trailer. 21. As a direct and proximate result of the negligence of Eagle Freight as aforesaid, Tri-State has sustained the damages set forth at length hereinabove. 22. As a further direct and proximate result of the negligence of Eagle Freight as 6 aforesaid, Tri-State, has been prevented from re-leasing the Trailer for profit. WHEREFOREj Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount not in excess of $50,000.00, plus interest, costs of suit, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT III FRAUD 23. Plaintiffs incorporate by reference herein the contents of paragraphs 1 through 22, inclusive, of this Amended Complaint as fully as though the same were set forth at length. 24. Tri-State believes and therefore avers that prior to entering into the Lease Agreement, Eagle Freight knew that it intended to use the Trailer for purposes of hazardous materials, including used batteries, which Eagle Freight knew had the propensity to leak and damage the containers in which they were stored, including the Trailer. 25. Tri-State believes and therefore avers that Eagle Freight deliberately concealed from Tri-State its intended purpose of using the Trailer to haul hazardous materials to induce Tri-State to lease the Trailer because Eagle Freight expected that Tri- State would not have leased the Trailer to Eagle Freight had it known that Eagle Freight intended to haul hazardous materials. 26. Tri-State believes and therefore avers that Eagle Freight, at the time it entered into the Lease, never intended to purchase the Trailer and acted in knowing or reckless disregard of the consequences, including damage to the Trailer beyond repair, of hauling hazardous materials, including used batteries; 27. Tri-State relied to its detriment on Eagle Freight's concealment of the fact that it intended to use the Trailer to haul hazardous materials because it leased the Trailer to Eagle Freight. 28. Eagle Freight's actions to induce Tri-State to lease the Trailer to it, as aforesaid, were deliberate, malicious and borne of evil motive so as to justify an award of punitive damages to deter Eagle Freight and others from committing such acts in the future. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. COUNT IV CONVERSION 29. Plaintiff incorporates by reference herein the contents of paragraphs 1 through 28, inclusive, of this Amended Complaint as fully as though the same were set forth at length. 30. Eagle Freight, by using the Trailer for improper purposes or using improper methodologies as aforesaid, and returning the Trailer in a condition damaged 8 and unusable to Tri-State, has deprived Tri-State of its rights of ownership and use of the Trailer, including but not limited to causing Tri-State ~loss of profits resulting from Tri- State being unable to lease the Trailer to any other entitie?' 31. Tri-State believes and therefore avers that Eagle Freight intentionally and with wilful and wanton disregard of the rights of Tri-State in its Trailer, induced Tri-State to enter into the Lease, took possession of the Trailer, intentionally hauled materials it knew, or reasonably expected would damage the Trailer and, rather than purchasing the Trailer returned the Trailer to Tri-State in a damaged and unusable condition. 32. Tri-State believes and therefore avers that Eagle Freight's deliberate and/or indifferent violation of the rights of Tri-State was deliberate, malicious and borne of evil motive so as to justify an award of punitive damages to deter Eagle Freight and others from committing such acts in the future. WHEREFORE, Plaintiff, Tri-State Leasing, Inc., demands judgment in its favor and against Defendant, Eagle Freight Lines, Inc. in an amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. KOZLOFF STOUDT Peter F. Schuchman, Ir., Esquire Attorney ID# 69343 Attorney for Plaintiff Dated: q,- ~'~,- 07 9 ~PR-12-20~2 10:90 TR! STATE TRL S~LES ~12 ~31 ?025 P,02 VERIFICATION The undersigned, having read the attached Amended Complaint, hereby verifies that all averments of fact not appearing of record contained in the attached complaint are true and correct to the best of the umdersigned's personal knowledge or information and belief. To the extent that the Complaint is based on information provided to the undersigned by counsel, the undersigned has relied upon counsel in taking this verification. This verification is made subject to the penalties of 28 Pa. C.S. § 4904 relating to u.nsworn falsification to authorities. TRI-STATE TRAILER LEASING, INC. DATED: TOTAL P.02 TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PA : CIVIL ACTION - LAW NO. 2001-05376P JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter F. Schuchman, Jr., Esquire, hereby certify that on April 15, 2002, a copy of the attached Amended Complaint was served upon the following parties via First Class Mail, postage prepaid: Dale A. Betty, Esquire 3130 Center Square West 1500 Market Street Philadelphia, PA 19102 Attorney for Defendant This Certificate is made subject tothe penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. KOZLOFF STOUDT Peter F. Schuchman, JrT, Esquire- Attorney ID No. 69343 Attorneys For Defendant EXHIBIT "B" T R I - STATE TRAILER .LEASING INC. TRAILER LEASE AGREEMENT Tel-State Trailer Leasing. Inc., a Delaware Corporation (%essor") does hereby let. and lease to Eagle Freight L~nes~ Inc. located at 835 Wynnewood Rd. Camp Hill PAt 17011 (Lessee") and Lessee does hereby hire fi'om Lessor aport tile terms, covenants and conditions hereinafi.er stated the fbllowing described personal properly ("trailers"). viz.: MAKE MODEL SERIAL NO. UN[T# OTHER PROPERTY 1999 Traihnobile Vail X9016382 48-5062 48' x 102" Spriog Lessee acknowledges receipt &the trailers in good repair and working condition. Lessee agrees to pay as rental tile sum ors 300.00 per unit, per 4 week billing cycle, to be paid 1:5 days after the invoice date· hereafter until the completion of the ieee. for a period of 6 months and the trailm's have been returned in good condition. Loss or destruction of the trailers shall not abme the rental dae. Plus $200 delivery charge. , Lessee shall reimbarse Lessor roi', or pay, any sales tax. use tax, or other tax based upon this traosaction or apon the ownership possession, use or operation of the trailers. This tnmsaction is a re,Iai and not a sale, coaditional or otherwise. Lessee does not acquire any right, title, or interest in or to these trailers. Lessee shall liave right to possession and use of ON E trailer(s), so long as this agreement continues in effect and lessee shall not be in dethult in pertbrmance. "Associates Commercial Carp: has a security interest in this lease and all rights, rents and monies hereunuer and the property listed herein." I Initialhere: Lessee will be responsible l'br any dam{~ge to the trailer other than nornml wear and tear. Lessee shall, at its own cost and expense procure and deliver to Lessor. simultaneously with or prior to delivery to Lessee oFthe trailers, and keep in full force and efl"ect during the entire term of this Agreement, a Certificate of Insurance satisfiqctory to Lessor as to the insurer and as to the ~'brn] and amount at'coverage with premiums prepaid thereon for tile term at'this · Agreement. protecting Lessor against all loss and damages it may sustain or suffer because the death oi': injur,v to. or damage to property of any third person as a result o1'; in whole or in part. £he use oi"the trailers while in the custody, possession, or control of'Lessee with limits of $1,000.000. as to personal injury liability and $1,000,000. as to property damage liability: Single interest liability insaraace protecting lessor ouly may be obtained bs' Lessor at the expense of Lessee at a premium of not more thao $ 100 per trailer tlr one year or less if Lessee does not provide the liability insurance described above, provided, however, that Lessor is not required to purchase such insarance, and unless Lessor does purchase such single interest liability insurance, Lessee's obligations to procure insurance shall not be relieved or affected any respect. LESSOR MAKES NO WARRANTY EXPRESSED OR IMPLI'ED AS TO THE FITNESS, MERCHANTABILI'¥Y. DESIGN. CONDITION CAPACITY. PERFORMANCE OR ANY OTHER ASPECT OF THE TRAILERS OR THEIR MATERIALS OR WORKMANSHIP. ALL NEW TP, AILERS HAVE A LIMITED WARRANTY BY THE MANUFACTURER. ANY WARRANTY REPAIRS W,LL BE PROVIDED THROUGH Tri-State Trailer Sales Initial here: TRI STATE II I_AMC. PA. t ?I? 569 8309 P..10/14 I0. Il. 12. 13. 14. uailc~, which ~ ~e subj~ of~ a~em~nt, nor ~halI L.ssea'~ perf~mance be ,]~lgn:bls, excep~ upon ~hc spcei~c ~.en consen~ of Less~r. dm~ ~e~u~rcd, or ~n ~h~ ~m ~cc becomes ~olvcnt, ba~p~, or o~l~e~ ~b~c ~o p~orm tls ob~gations, L~s~e shall ~ d~om~fl ~ be ~ dc~ult, and Lessor shah baar ~e absolute ~d ~quali~ed tight ~o e{~e~ (I) declare ~s balana~ of ~e r~ payable ~erc~d~ i~ediatdy d~ and pa~]~, or (2) m~e or mtaln the trailers without de~d or legal process ~ee afa/l ffgh~ of Leaa~ ~d Lessee hereby authoHz~ L~ssor or i~or i~ ag~h to ~tcr upon ~ p~mis~ who~ ~= ~era arc located for fl~e pu~ose ~ r~oaaesaing the s~me. L~aee ~r auto.s Lessor Io p]ac8 ~ny prope~ or goods stored in the ~ilcr~ ia public ~Io~ge at ~e expeme of~s~, Les~r ~li notify, no :arlier ~l~n 30 days. bcrorc Le~or ta~; a~tion upon Lessee. Lessor reserves thc right to canocl thh agreement on not less than thirty (30) days vaitten nodc~, Lca~cc's obligaHon to pay ~ retool ~dll ceas~ and L~s~ will pay to Lo~or all rental acc~ but unpaid ~ Lessor w~ re,nd m Lessee ~y ren~[ paid in adyanc~ for any period beyond the dat~ of Net/~qet Lease- customer respuns~le for any and ail maintenance to include tires and brakes. Trailer must tcrminato with 100% tires and brt.k:~l per outgoing inspection repo~ A p= 32,d of i~ad wear ~ ~ra cha~ will be ass~scd ~ follows: $26.00/~r 32~ for radial tfrcs and caps. B~ wi~ be ~ged as a percentage of wear ~om outgo~g i~p~c~oll repo~ b~ o~ ~450.00 b~job, NO M~EAGE C~RGES Repairs: In thc ~v~t °£rep~-irable damage to any parr of any :t~ilcr, Lca~oe slmll remain liable for all U'uilar mn,.al c~g~ ~en ~ou~ the t~iler is unu~hle. Lessee may have ;he same rc~i~d by ~y compe:am pe~on, ~ or co~oradon at R's o~ expense, or upon no,ce a~d dellve~ ~o Lesso~ Lessor ~y r~air ~id ~a~lcr ~or Lea=e, us~g reportable diligence m ' mak= said repairs or mpl~em~t in ~c ~ortust possible time. Lessee a~ue~ ;o pay ~ ~ounr charged by Lessor ~t any ma~dal or labor ro make said rcp~r~ Lcasa~ a~cs to ~'ompdy and timely pay all ch~ges Iht rapa~s ot ~t~aaace to :h~ leased E~ipment ~d suffer no lien for labor, ~ra6~s, or ~tomge to be flied or at,cited to said EquipmenL ~ssor may. at i~ o~ option, rede m ~ any ~epair work on any ~it~r in rime ats~kc, or if~ option of L~ssor are ~ot advisable. ~scc sMII not make, suffer ~ peril any ~w~ usc o~ h~dling otsaid leased Equicor. Lessee shall not. without Le~or's prior ~cn thereto, make or suffer any cMng~s, alt~ons or {mprovcmmta in or to s~id l~as~d Equipment or remov~ Therefrom a.:y pm~s, accessories, a~achmcn~ or oGer cq~pm~. Lessee Is not permitted to haul retus~ garbage nor hazardous was~ materiala. If it is dot.ned ~ eider h~ been hauled d~ing d~e lease, lessee will be responsible w purch~c thc ~ail=~ a: pumhase option price Iocate~ on schcdul~ E. DelJnquen~ Charges: For t~h Rental pa~ent or other s~ ~ue hereunder which ~s not when due, Less~ a~c~ m pay L~or a delinquency ch~ge calculamd ~ercou at ~e rate of 1/2% p~ mon~ For ~m pcdod of del/nq~ncy provided ~a~ ,~uch a delinquency charg~ ts not proh~itcd by law othe~i~ at the highest ~re r. ess~e ~n legally obliua~e {~elfto gay and or LeSSor c~ legally COH~cL ' ~U~-1~-1999 09:16 STATE II LANC. PA. 717 S69 BB09 TRI STATE II L~NC. PA. 3UL-15-1999 09:i? 15. paymcr~ Sch~'dulc A ou~i~.s :~ payment schcdulm. This imtrumeni coniai~s the ~nt~ a~m~ nr be~een &e ps.les nnd sh~II im~ure to ~e benefit of ~ bind the heirs, ~xecu~o~, adm~is~ton, successors and ~[gm ofth~ pard~s. No agf~e~, rcp~s~n~tions ~r ~d~ings not specifically contused ~n ~all bc b~dlng up~ any of lee pa~ies ~less reduced to ~t~g a~ signe~ by ~e 1999. Signaru~ Title of.Au~o~d Agent 835 Wynnewood Rd. Camp Hill, PA I701 (Lesse~'~'A~dre~s) (Signarar~ of Autho,ized AgenO Lemlng Munage.r (Title) LE^$E-AGt~EEMENT 89:15 STATE I1 L.~HC. Pay'mere $~hedu~e i 711 ~/99 ~ $300.00 2 B/13199 $300,00 3 9/10/99 $300.00 4 10/8/g9 $300,00 5 11/5/99 $300.00 6 12/3/99 $~Od. OO 7 12/31/98 $300.00 8 ~8 2/25100 10 3124100 11 4/21/00 12 ~;/1 ~/OO 13 5/16/00 14 7/14/00 15 8/11/00 16 9/8/00 : 17 10/6/00 18 11/3/0C 19 12/1/00 20 ~. - 12J29/00 21 '1/26/01 22 2123101 23 3/23/01 24 4/20/01 25 5/18/01 20 6115}01 27 7/13/01 28 8/1 ~.9 9/7101 30 10/5/01 31 11/2/01 32 11/30/01= 33 12/28/01 34 1125/02 35 2/22/0; 36 3/22J02 37 38 39 40 -~' 717 569 8~09 P.04/14 (1)1998 TIM 48' X 103" 8PRINQ RIDE VAN xg0163S2 Tri-State Trailer Leasing, Ino. JUL-13-1999 i?:27 TRi-STRTE TRRILER SRLES i 412 ?79 4818 P,83 PRAECIPE FOR LISTING CASE FOR ARGUMEN' (Must be typewritten and submitted in duplicate} TO THE PROTHONOTARY/OF C.UMBERL,%"iD COUNTY.: Please list th~ wiuhin matter t'or :he nex:: Pre-Triai ~oument Court .~xgument Court CAPTION 0FC,~£ (entimcapfionm~tbestat~ mfutl) IN THE COURT OF COMMON PLEAS OF CUMBERLAND CIVIL ACTION - LAW TRI-STATE TRAILER LEASING, INC., EAGLE FREIGHT LINES, INC., DOCKET NO. 2001- JURY TRIAA DEMAN vs. (De~nd~t) No. Civil 1. State matter to be argued (L e., ~[aintiff'$ motion for new tn,al. defendant's demurrer to corn?taint, etc.): Defendant's Preliminary Objections tc 'Amended Complaint ~ Identify counsel wt~o will argu~ caa=: °' Peter F. Schuchman, Jr., (a) for plaiat~Y: Jasc~ B. Hopp, Esquire Address' Kozloff Stoudt for 6efen~~-640 Westview Dr., P.O. B (~) · Address: Dale A. Betty, Esquire Jack f~nas & Associates 3. I ~m notify mi pa~tie$ m:l~gL~co~%m~'~mO-~r~tte~ listed for argument. -- Argument Court Date: July 24, 200~.--~ .for Plainti Hopp, Esq COUNTY, PA 5376 )ED Plaintiff's squire x 6286, Wyomissing, PA 196~0 ~-=ket St., Philadelphia, q9~02 ff) ~ire TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-5376 CIVIL CIVIL ACTION - LAW IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT BEFORE HOFFER, P.J., HESS AND OLER, J.J. ORDER AND NOW, this z '/" day of August, 2002, the court being satisfied that the dismissal of the tort counts in this case on preliminary objections would be premature, the preliminary objections of the defendant, Eagle Freight Lines, Inc., are DENIED without prejudice to defendant to raise the matter on summary judgment. BY THECOURT, / aso~,'B. Hopp, Esquire / ~1~, the Plaintiff /,'Dale A. Betty, Esquire ' For the Defendant :rlm A. Hess, J. Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972-8065 Attomey for Defendant, Eagle Freight Lines, Inc. TRI-STATE TRAILER LEASING, INC. V. EAGLE FREIGHT LINES, INC. COURT OF COMMON PLEAS OF CUMBERI,AND COUNTY NO. 2001-05376P PETITION TO OBTAIN APPROVAL TO WITHDRAW AS COUNSEL OF RECORD FOR DEFENDANT EAGLE FREIGHT LINES, INC. AND TO OBTAIN AN EXTENSION OF TIME FOR DEFENDANT TO OBTAIN COUNSEL The Petition of Dale A. Betty, Esquire respectfully represents: 1. The defendant Eagle Freight Lines, Inc. during the pendency of this litigation has been represented by the law firm of Jack Emas & Associates and on April 2, 2002 Dale A. Betty, Esquire entered his appearance on behalf of defendant Eagle Freight Lines, Inc., a copy of which is attached hereto and incorporated by reference and marked Exhibit "A". 2. Defense counsel was provided to Eagle Freight Lines, Inc. pursuant to its policy of liability and principal damage insurance with Star Insurance Company, Policy No. CA0101262 for the cause of action set forth in plaintiff's Complaint. 3. By letter dated August 9, 2002 Sherry Healey as authorized represemative of Star Insurance Company informed Eagle Freight Lines, Inc. based upon plaintiff's amended complaint it would not defend or indemnify it since the lost did not occur during the policy period; the claims were not within the coverage due to 3 specific exclusions and that damages based upon fraud and conversion were not subject to the terms of the policy. 4. As a result of the foregoing, the law firm of Jack Emas & Associates and Dale A. Betty, Esquire were discharged as counsel for defendant Eagle Freight Lines, Inc. on August 30, 2002. 5. The concurrence of counsel to plaintiff has been sought but has not yet been received. 6. In view of the foregoing, Petitioner requests the court to approve the Petition to Withdraw as Counsel of record for defendant Eagle Freight Lines, Inc. and to permit defendant Eagle Freight Lines, Inc. a reasonable period of time in which to obtain counsel. JACK EMAS & ASSOCIATES BY: ~ s~'. DALE A. BETTY Jack Emas & AssoCiates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972-8065 Attorney for Defendant, Eagle Freight Lines, Inc. TRI-STATE TRAILER LEASING, INC. EAGLE FREIGHT LINES~ INC. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, Eagle Freight Lines, Inc. in the above entitled action. JACK EMAS & ASSOCIATES BY: DALE A. BETTY Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 9?2-8065 TRI-STATE TRAILER LEASING, INC. EAGLE FREIGHT LINES, INC. Attomey for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P MEMORANDUM OF LAW IN SUPPORT OF PETITION TO OBTAIN APPROVAL TO WITHDRAW AS COUNSEL OF RECORD FOR DEFENDANT EAGLE FREIGHT LINES, INC. The Pennsylvania Rules of Professional Conduct provide that a lawyer shall withdraw from the representation of a client when: Rule 1.16(a)(3) -the lawyer is discharged. The Rules further provide that a lawyer may withdraw if the withdraw can be accomplished without material adverse effect on the interest of the client when: Rule 1.16(b)(6) - other good cause for withdraw exists. In the instant case, Eagle Freight Lines, Inc. was insured by Star Insurance Company and when sued by plaintiff, the law firm of Jack Emas & Associates was retained by Star Insurance Company for the purposes of representing their insured, Eagle Freight Lines, Inc. in the above- referenced lawsuit. Dale A. Betty, Esquire thereafter entered his appearance on behalf of defendant Eagle Freight Lines, Inc. on April 2, 2002. The disclaimer of coverage by Star Insurance Company per its letter of August 9, 2002 to defendant Eagle Freight Lines, Inc. based its decision on the claims set forth in the amended complaint and further stated that its coverage to defendant Eagle Freight Lines, Inc. along with the legal services being afforded to it would end on August 30, 2002. In view of the foregoing there is good and just cause for the court to grant the petition to withdraw as counsel of record for defendant. WHEREFORE, Petitioner requests the court to permit petitioner to withdraw his appearance for defendant and provide defendant sufficient time in order to obtain counsel. JACK EMAS & ASSOCIATES BY: ~ .~ · 'e~-.~~ DALE A. BETTY VERIFICATION I, DALE A. BETTY, ESQUIRE, hereby state that I am the attorney for defendant, Eagle Freight Lines, Inc., in this action, and I verify that the statements in the foregoing Petition to Withdraw as counsel of Record for Defendant Eagle Freight Lines, Inc. and to Obtain an Extension of Time for defendant to obtain counsel is tree and correct to the best of my knowledge, information and belief, and that the information in this pleading was obtained by me from representatives of said defendant. The undersigned understands that the statements made herein are subject to the penalties of 18 Pa. C.S.A. section 4904 relating to unsworn falsification to authorities. DATED: DALE A. BETTY, ESQUIRE ~$EP 1 ~. 2oo~ . Jack ~mas & ~ssociates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972-8065 TRI-STATE TRAILER LEASING, INC. EAGLE FREIGHT LINES, INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P RULE AND NOW, this t3"' day of -99, t't,,~ ,2002 upon consideration of the within Petition of Counsel for Defendant Eagle Freight Lines, Inc. for Leave to Withdraw, a Rule is hereby entered to show cause why the Petition to Withdraw as counsel for defendant should not be granted. All proceedings to stay meanwhile. Rule Returnable the d~y of BY THE COURT: Jo Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972-8065 TRI-STATE TRAILER LEASING, INC. EAGLE FREIGHT LINES, INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERI,AND COUNTY NO. 2001-05376P CERTHZICATION OF CONCURRENCE I hereby certify that I: concur do not concur In the petition of Dale A. Betty, Esquire to withdraw as counsel for defendant Eagle Freight Lines, Inc. DATED: PI~TER F. SCHUCHMAN, JR. [J Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 1500 Walnut Street, Suite 1500 Philadelphia, Pennsylvania 19102 (215) 545-4770 TRI-STATE TRAILER LEASING, INC. EAGLE FREIGHT LINES, INC. NOV 1 5 ZOO2 ~ Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P ORDER AND NOW, this z o ~ day of s,'~-~.~,¢o,-, 200t--upon consideration of the within Motion to Make Rule Absolute filed by Dale A. Betty, Esquire and Jack Emas and Associates, and it appearing that no answer has been filed to the petition of counsel for defendant Eagle Freight Lines, Inc. for leave to withdraw, it is hereby ORDERED that the Rule is made absolute and Dale A. Betty, Esquire and the law fnTn of Jack Emas and Associates are hereby granted leave to withdraw their appearance on behalf of Defendant, Eagle Freight Lines, Inc. which has & O days to obtain counsel. LO" BY THE COURT: Jo Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 1500 Walnut Street, Suite 1500 Philadelphia, Pennsylvania 19102 (215) 545-4770 Attorney for Defendant, Eagle Freight Lines, Inc. TRI-STATE TRAILER LEASING, INC. _EAGLE FREIGHT LINES, INC. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P MOTION TO MAKE RULE ABSOLUTE Dale A. Betty, Esquire of the law firm of Jack Emas and Associates files this Motion to Make Rule Absolute, and in support thereof avers the following: 1. Dale A. Betty of the law firm of Jack Emas and Associates, filed a petition to obtain approval to withdraw as counsel of record for defendant Eagle Freight Lines, Inc. and to obtain an extension of time for defendant to obtain counsel on September l 1, 2002. 2. The Court issued a rule to show cause why the petitic,n to withdraw as counsel should not be granted which was made returnable on September 23, 2002. 3. No answer to the motion has been served upon any party to this action. 4. The certification of concurrence by plaintiff's attorney, Peter F. Schuchman, Jr. to the petition to withdraw as counsel was filed on September 30, 2002~ WHEREFORE, your Petitioners, Dale A. Betty, Esquire and the law firm of Jack Emas and Associates requests this Honorable Court to enter an Order rnaking the rule issued on September 13, 2002 ABSOLUTE and granting them leave to withdraw their appearance as counsel for defendant. JACK EMAS & ASSOCIATES BY: DALE A. BETTY Jack Emas & Associates ATTORNEYS AT LAW By: DaTe A. Betty, Esquire Attorney Identification No. 08609 1500 Walnut Street, Suite 1500 Philadelphia, Pennsylvania 19102 (215) 545-4770 TRI-STATE TRAILER LEASING, INC. EAGLE FREIGHT LINES, INC. Attorney fox' Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05376P CERTIFICATION OF SERVICI~ I hereby certify that a tree and correct copy of Motion to make role absolute was served on the following by United States first class mail postage prepaid on the/2/1~ day of ~/t/~en¥~ ~-/~ 2002 to the parties listed below: Peter F. Schuchman, Jr., Esquire 2640 Westview Drive P.O. Box 6286 Wyomissing, PA 19610 Eagle Freight Lines, Inc. Atha: Earl Mumma, Jr., President 835 Wynnewood Road Camp Hill, PA 17011 This certification is made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. JACK EMAS & ASSOCIATES DALE A. BETTY Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty, Esquire Attorney Identification No. 08609 1500 Walnut Street, Suite 1500 Philadelphia, Pennsylvania 19102 (215) 545-4770 TRI-STATE TRAILER LEASING, INC. EAGLE FREIGHT LINES~ INC. Attorney for Defendant, Eagle Freight Lines, Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2001-05.376P WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdrawal my appearance on behalf of Defendant, Eagle Freight Lines, Inc. in the above-entitled action. JACK EMAS AND ASSOCIATES BY: ~' ~q' ~"~ DALE A. BETTY, ES~RE TRI-STATE TRAIl ,ER LEASING, INC. Plaintiff, VS. EAGLE FREIGHT LINES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW No. 2001-05376P JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance on behalf of Defendant, Eagle Freight Lines, Inc., on behalf of the above-captioned matter. Dated: by: Respectfully Submitted: WILLIAM T. SMITH, ESQUIRE Thomas A. Archer, Esquire ID# 73293 3747 Derry Street Harrisburg, PA 17111 (717) 561-2677 CERTIFICATE OF SERVICE I, Thomas A. Archer, Esquire, hereby certify that on the date set forth below I served a tree and correct copy of the foregoing document upon the person(s) stated below, by depositing the same First Class, postage prepaid, with United States Postal Service, addressed as follows: Th6mas A. Archer, Esquire Attorney I.D. # 73293 3747 Derry Street Harrisburg, PA 17111 (717) 561-2677 Attorney for Defendant C:~IYFILES2001~a~. FormsXCivil Suits~ACortServ.wpd Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 Jason B. Hopp, Esquire Attorney ID No. 80258 KOZLOFF STOUDT 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PA : CIVIL ACTION - LAW : NO. 2001-5376 : : JURY TRIAL DEMANDED : NOTICE OF INTENT TO ENTER DEFAULT JUDGMENT To: Eagle Freight Lines, Inc. Mumma Trucking Corp P.O. Box 179 Camp Hill, PA 17011 Thomas A. Archer, Esquire William T. Smith, Esquire 3747 Derry Street Harrisburg, PA 17111 Counsel for Defendant DATE OF NOTICE: April 21, 2003 NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE AN ANSWER TO OUR COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 2 Liberty Ave. Carlisle, PA 17013 (717) 249-3166 By: KOZLOFF STOUDT Professional Corporation Peter F Schuchrnan, Jr, Esquire Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 Jason B. Hopp, Esquire Attorney ID No. 80258 KOZLOFF STOUDT 2640 Westview Drive, PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PA : CIVIL ACTION - LAW : NO. 2001-5376 : : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter F. Schuchman, Jr., Esquire, do hereby certify that Notice of Intent to Enter Default Judgment was served, by first class mail, upon the following party: Eagle Freight Lines, Inc. Mumma Trucking Corp P.O. Box 179 Camp Hill, PA 17011 Thomas A. Archer, Esquire William T. Smith, Esquire 3747 Derry Street Harrisburg, PA 17111 I make this certification subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. Date Notice of Intent to Enter Default Judgment was sent: April 21, 2003 Attorneys for Plaintiff TRI-STATE TRAIl,ER LEASING, INC. Plaintiff, VS. EAGLE FREIGHT LINES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW No. 2001-05376P JURY TRIAL DEMANDED NOTICE To: NOTICE TO PLEAD Plaimiff, TRI-STATE TRAILER LEASING, INC., and their attorney Peter Schuchman, Jr., Esquke. YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Dated: % Thomas A. Archer, Esquire Attorney I.D. No. 73293 3747 DerD' Street Harrisburg, PA 17111 (717) 561-2677 Attorney fi)r Defendant C:LMYFILES200 l\Cli~ts~,murmna SR\plead.wpd TRI-STATE TRAILER LEASING, INC. Plaintiff, VS. EAGLE FREIGHT LINES, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERI~AND COUNTY, PA CIVIL ACTION - LAW No. 2001-05376P JURY TRL~d.~ DEMANDED DEFENDANT'S ANSWER WITH NEW MATTER TO AMENDED COMPLAINT Denied. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to the troth of the allegations. Admitted. Admitted. Admitted in part; denied in part. It is admitted only that the Lease Agreement contains certain language which speaks for itself. To the extent that the enumerated lease provisions cited by the Plaintiff are "material" terms, such a statement is a legal conclusion to which no answer is required. To the extent that an answer may be required, it is specifically denied that the enumerated provisions cited by the Plaintiff constitute "material" terms. Admitted. Admitted. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an Answer may be required, it is specifically denied that the trailer was returned in a defective, damaged and unusable condition due to the fact that it had been used to haul hazardous materials, including used or discarded batteries, the acid from which leaked and contaminated the trailer. To o 10. 11. 12. 13. the contrary, the delivery and return report completed by Plaintiff and attached hereto as Exhibit "A", indicates no such damage 'to the trailer. Denied. The delivery and return report completed by the Plaintiff upon Defendant's return of the trailer indicates certain wearing of the tires as indicated in the delivery and return report which is attached hereto as Exhibit "A" and incorporated by reference. The allegations regarding the unit price is specifically denied. Denied. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief, as to the truth of the allegations. Denied. The allegations are conclusions of law under f,act to which no answer is required. To the extent that an answer may be required, it is specifically denied that rent for the trailer continues to accrue at the rate of'$300 per f.our week billing cycle until such time as Eagle Freight purchases the trailer. Denied. Defendant is unaware of "numerous invoices" representing ongoing rent charges, tire wear charges and the purchase price of the trailer, allegations of which are all specifically denied. Admitted in part; denied in part. It is admitted only that Eagle Freight has refused to tender any additional payments to the Plaintiff for damages which are unsubstantiated in law or f.act. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief, as to the truth of the allegations. To the extent a response is required, Defendant specifically denies that Plaintiff has received or incurred costs to dispose of.the trailer in the amount of. $970.00. 14. 15. 16. 17. 18. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, it is specifically denied that the invoices referenced are necessary, fair and reasonable or are charges agreed to pay in connection with the Lease Agreement. COUNT I BREACH OF CONTRACT Defendant incorporates by reference herein the contents of paragraphs 1-14 of Defendant's Answer and New Matter as though :same were set forth herein at length. Denied. The allegations are conclusions of law and/or fact to which no response is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). Defendant specifically denies any liability to Plaintiff for returning the trailer before the expiration of the I_,ease Agreement or returning the trailer in defective, contaminated and unusable condition, constituting material breach of the Lease Agreement. Denied. The allegations are conclusions of law and/or fact to which no response is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). Defendant specifically denies that as a direct and proximate result of the terms of the Lease Agreement, Tri-State suffered damages as alleged. Denied. The allegations are conclusions of law and/or fact to which no answer is required. The allegations are conclusions of law and/or fact to which no response is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Defendant, Eagle Freight Lines, Inc., demands judgment in its favor and against Plaintiff, Tri-State Leasing, Inc., together with costs, reasonable attorneys fees and such additional relief as may be recoverable under applicable law. COUNT II 19. Defendant incorporates by reference herein the contents of paragraphs 1-18 of Defendant's Answer and New Matter as though same were set forth herein at length. 20. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). Defendant denies that il: owed any duty of reasonable care to Plaintiff under the circumstances 21. (a)-(g). Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, such allegations are denied in accordance with PaR. C.P. 1029(e). 21[SIC]. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). Defendant specifically denies that as a direct and proximate result of the negligence of Eagle Freight, as alleged, Tri-State has sustained damages as set forth in Plaintiff's Amended Complaint. 22. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). Defendant specifically denies that as a direct and proximate result of the negligence of Eagle Freight, as alleged, Tri-State has sustained damages as set forth in Plaintiff's Amended Complaint. WHEREFORE, Defendant, Eagle Freight Lines, Inc., demands judgment in its favor and against Plaintiff, Tri-State Leasing, Inc., together with costs, reasonable attorneys fees and such additional relief as may be recoverable under applicable law. COUNT III 23. Defendant incorporates by reference herein the contents of paragraphs 1-22 of Defendant's Answer and New Matter as though same were set forth herein at length. 24. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, Defendant specifically denies that Defendant knew it intended to use the trailer for purposes of[sic] hazardous materials, including used batteries, which Defendant knew had the propensity to leak and damage the containers in which they were stored, including the trailer. 25. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further response, Defendant specifically denies that it deliberately concealed from Plaimiff, Defendant's intended purpose of using the trailer to haul hazardous materials to induce Plaintiff to lease the trailer because Defendant expected that Plaintiff would not have leased the trailer to Defendant had it known that Defendant intended to haul hazardous materials. 26. Denied. The allegations are conclusions of law and/or fact to which no answer is 30. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). Defendant specifically .denies that it used the trailer for improper purposes or that it returned the trailer :in a condition damaged and/or unusable by the Plaintiff, that Defendant deprived Plaintiffofits rights of ownership and use of the trailer, including but not limited to causing Plaintiff a loss of profits resulting from the Plaintiff being unable to lease the trailer to other entities. 31. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). By way of further answer, Defendant specifically denies that Defendant intentionally and with wilful and wanton disregard of the rights of Plaintiff and its trailer, induced Plaintiff to enter into the Lease, took possession of the trailer, intentionally hauled materials it knew, or reasonably expected would damage the trailer, and rather than purchasing the trailer returned the trailer to Plaintiff in an damaged and unusable condition. 32. Denied. The allegations are conclusions of law and/or fact to which no answer is required. By way of further answer, such allegations are denied in accordance with Pa.R.C.P. 1029(e). Defendant specifically denies that Defendant engaged in deliberate and/or indifferent violation of the rights, of Plaintiff or that Defendant was deliberate, malicious or borne of evil motive so as to justify an award of punitive damages. WHEREFORE, Defendant, Eagle Freight Lines, Inc., demands judgment in its favor and against Plaintiff, Tri-State Leasing, Inc., together with costs, reasonable attorneys fees and such additional relief as may be recoverable under applicable law. NEW MATTER 33. 34. 35. 36. 37. 38. 39. Defendant incorporates by reference herein the contents of paragraphs 1-32 of Defendant's Answer and New Matter as though same were set forth herein at length. At no time did the Defendant misuse the trailer leased fi.om the Plaintiff or haul hazardous materials which caused any damage to the Plaintiff's trailer. The delivery and return report completed by the iPlaintiff at the time the trailer was returned to the Plaintiff by Defendant indicates no damage to the trailer as indicated by the Plaintiff in its Amended Complaint. The Lease Agreement does not provide for any liability by Defendant to Plaintiff for returning the trailer on the date accepted for delivery by the Plaintiff, nor does the Lease Agreement provide for any liability by the Defendant to the Plaintiff for failure to purchase the trailer. In the event that Defendant is liable to the Plaintiff for any of the damages alleged in Plaintiff's Complaint, Plaintiffis barred as a matter of law from seeking damages for both the purchase price of the trailer and continuing loss profits for failure to lease the trailer to other entities. The Amended Complaint fails to state a cause of action against the Defendant upon which relief may be granted. The damage to the Plaintiff's trailer may be due to the negligence of the Plaintiff or other parties of which the Defendant has no control, which negligence may bar or limit any claim that the Plaintiff has asserted, 'the existence of any such claim against the Defendant being specifically denied. 40. The Plaintiff has failed to mitigate its damages, if any. 41. Plaintiff's claims may be barred by the applicable statute of limitations. 42. Plaintiff's claims may be barred under the Doctrine of Laches. 43. Plaintiff's claims may be barred, in whole or in part, by the Doctrine of Unclean Hands. WHEREFORE, Defendant, Eagle Freight Lines, Inc., demands judgment in its favor and against Plaintiff, Tri-State Leasing, Inc., together with costs, reasonable attorneys fees and such additional relief as may be recoverable under applicable law. Dated: by: Respectfully Submitted: WILLIAM T. SMITH, ESQUIRE Thomas A. Archer, Esquire ID# 73293 3747 Derry Street Harrisburg, PA 17111 (717) 561-2677 T/~[r,$?~/?£ DELIVERY & .RETURN REPORT ,hon.: (4 ~ 2) 747.???? F~: (412) 777~010 iinImlaL RECEIPT AND InSPECTIOn'I . I RETURN RECEIPT AND INSPECTION ~K ~Y ~ ~GES OR ~OE~Y F~ND BY I~PEC~N S~ '~ ~Ol~ - "~ C~ - 'H" ~ - "~ ~GES CLEARANCE t UGHTS FRONT REAR StOP SIDE MARKERS LEFT RIGHT TAIL UGHT REFLECTORS LEFT SIDE RIGHT SIDE REAR · FLAPs BRAKES LANDING GEAR, WIRING REAR END PROTECTION . .~ (' ~ : :; [LEssEE Initial! I CLEARANCE LIGHTS FRONT REAR STOP SIDE MARKERS LEFT RIGHT TAIL LIGHT REFLECTORS LEFT SIDE "RIGHT SIDE REAR FLAPS BRAKES LANDING GEAR WIRING REAR END PROTECTION · DISCRIPTION OF MISSING PARTS OR DAMAGE ON RETURN: WHEEL LUGS UNDER CARRIAGE SAE-ATA 7 WAY PLUG VERIFICATION I hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. {}4904, relating to unswom falsification to authorities. Date: THOMAS A. ARCHER, ESQUII~ Attorney for Defendant CERTIFICATE OF SERVICE I, Thomas A. Archer, Esquire, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the person(s) stated below, by depositing the same First Class, postage prepaid, with United States Postal Service, addressed as follows: Peter F. Schuchman, Jr., Esquire KOZLOFF STOUDT 2640 Westview Drive P.O. Box 6286 Wyomissing, PA 19610 Date: Thomas A. Archer, Esquire Attorney for Defendant KOZLOFF STOUDT By: Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 2001-05376P JURY TRIAL DEMANDED REPLY TO NEW MATTER 33. Plaintiff incorporates by reference herein the contents of paragraphs 1 through 32 of its Amended Complaint as fully as though the same were set forth verbatim. 34. Denied. The contents of paragraph 36 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies any characterization or mischaracterization of any document inasmuch as they are written instruments, the contents of which are self-evident. 35. Denied. The contents of paragraph 35 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies any characterization or mischaracterization of any document inasmuch as they are written instruments, the contents of which are self-evident. By way of still further answer and defense, Plaintiff avers that the trailer was damaged as set forth at length in Plaintiff's Amended Compliant. 36. Denied. The contents of paragraph 36 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies any characterization or mischaracterization of any document inasmuch as they are written instruments, the contents of which are self-evident. 37. Denied. The contents of paragraph 37 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies any characterization or mischaracterization of any document inasmuch as they are written instruments, the contents of which are self-evident. By way of further answer and defense, Plaintiff avers that it is entitled to be made whole. 38. Denied. The contents of paragraph 38 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies that its Amended Complaint fails to state a cause of action against the Defendant upon which relief may be granted. 39. Denied. The contents of paragraph 39 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies any characterization or mischaracterization of any document inasmuch as they are written instruments, the contents of which are self-evident. 40. Denied. The contents of paragraph 40 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies any characterization or mischaracterization of any document inasmuch as they are written instruments, the contents of which are self-evident. 41. Denied. The contents of paragraph 41 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies that Plaintiff's claims may be barred by the applicable statute of limitations. 42. Denied. The contents of paragraph 42 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies that Plaintiff's claims may be barred under the Doctrine of Laches. 43. Denied. The contents of paragraph 43 constitute averments of law, conclusions of law or conclusions of fact to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is nevertheless required, Plaintiff specifically denies that Plaintiff's claims may be barred by the Doctrine of Unclean Hands. WHEREFORE, Plaintiff, Tri-State Trailer Leasing, Inc., demands judgment in its favor and against Defendant, Eagle freight Lines, Inc. in an amount in excess of $50,000.00, plus interest, costs of suit, punitive damages, reasonable attorneys fees, and such further and other relief as may be recoverable under applicable law. Peter F. Schuchman, Jr., Esquire Attorney ID # 69343 *' Attorney for Plaintiff 4 VERIFICATION The undersigned, having read the attached Reply to New Matter hereby verifies that all averments of fact not appearing of record contained in the attached Reply to New Matter are true and correct to the best of the undersign's personal knowledge or irfformation and belief. To the extent that the answers are based on information provided to the undersigned by counsel, the undersigned has relied upon counsel in taking this verification. The language is that of counsel. This verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Tri-State Trailer Leasing, Inc. DATED: 7//o~J~ 7J TRI-STATE TRAILER LEASING, INC., Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 2001-05376P EAGLE FREIGHT LINES, INC., Defendant CERTIFICATE OF SERVICE JURY TRIAL DEMANDED I, Peter F. Schuchman, Jr., Esquire, hereby certify that on ?/~'~/03 , a copy of the attached Reply to New Matter was served upon the following parties via First Class Mail, postage prepaid: Thomas A. Archer, Esquire 3747 Derry Street Harrisburg, Pa 17111 Attorney for Defendant This Certificate is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. P~ter F. Sc~uchman, Jr., Esqmr~-"-~ J' Attorney ID No. 69343 LJ Attorney for Plaintiff wp(wp) .bkl Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 Jason B. Hopp, Esquire Attorney ID No. 80258 KOZLOFF STOUDT 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 2001-5376 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter F. Schuchman, Jr., Esquire, hereby certify that on~ a copy of Plaintiff's First Request for Production of Documents was ese~ed upon the following parties via First Class Mail, postage prepaid: Thomas A. Archer, Esquire 3747 Derry Street Harrisburg, Pa 17111 Attorney for Defendant This Certificate is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsificati°n t° auth°rities' ~U ~~ ~//7~?; ~/~,t EXeter F. ~chuchman, Jr., Esquire Attorney ID No. 69343 Attorney for Plaintiff Peter F. Schuchman, Jr., Esquire Attorney ID No. 69343 Jason B. Hopp, Esquire Attorney ID No. 80258 KOZLOFF STOUDT 2640 Westview Drive PO Box 6286 Wyomissing, PA 19610 (610) 670-2552 Attorneys for Plaintiff TRI-STATE TRAILER LEASING, INC., Plaintiff VS. EAGLE FREIGHT LINES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 2001-5376 : JURY TRIAL DEMANDED PRAECIPE FOR DISCONTINU~M~ICE TO THE PROTHONOTARY: Kindly mark the docket in the above-captioned matter, "Settled, Discontinued and Ended." KOZLOFF STOUDT _ Peter F. Schuchman, Jr., Esquire Attorney for Plaintiff