HomeMy WebLinkAbout06-3053R.R.I.C. ASSOCIATES, INC
Plaintiff
VS
DOMINION AIR AND
MACHINE COMPANY
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PENNSYLVANIA
NO. d 4. 30,53 c.:' t
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and
filing in writing with the Court your defenses or objections to the claims set forth against
you. You are warned that if you fail to do so the case may proceed without you and a
judgment may be entered against you by the Court without further notice for any money
claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You
may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013-3308
(717) 249-3166
R.R.LC. ASSOCIATES, INC. IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
vs NO. 0G• 3053 C"- -Ft.-
DOMINION AIR AND CIVIL ACTION - LAW
MACHINE COMPANY JURY TRIAL DEMANDED
COMPLAINT
AND NOW, comes R.R.I.C. Associates, Inc., by and through its attorney, Mark K.
Emery, Esquire, and files this Complaint, as follows:
Plaintiff, R.R.I.C. Associates, Inc., ("R.R.I.C.") is a Pennsylvania corporation with an
address for doing business at 5215 Simpson Ferry Road, Suite 102, Mechanicsburg,
Pennsylvania 17050.
2. Defendant, Dominion Air and Machine Company, ("Dominion") is, upon information and
belief, a Virginia corporation with a mailing address of P.O. Box 13806 Roanoke, Virginia
24037.
3. Upon information and belief, Dominion regularly transacts business within Pennsylvania.
4. R.R.I.C. has previously purchased machinery from Dominion.
5. Upon information and belief, Dominion regularly sends unsolicited faxes to business in
Pennsylvania advertising their inventory for sale.
6. Upon information and belief, Dominion regularly advertises their inventory for sale in
trade publications distributed in Pennsylvania.
Upon information and belief, Dominion regularly ships machinery and materials through
the Commonwealth of Pennsylvania.
8. On or about December 2005 Dominion issued to R.R.I.C. a quote for the sale of an AGIE
Elox Ameritron 100 CNC Sinker ("AGIE") for the price of $9,500.00 less ten percent
(10%), for a total sale price of $8550.00.
9. On December 14, 2005, R.R.I.C. issued a Purchase Order for the AGIE. A copy of such
Purchase Order is attached and incorporated fully herein as Exhibit "A".
10. As set forth in the Purchase Order a condition of the sale was a thirty (30) day return
privilege if the machine did not operate properly when placed under power.
11. Dominion included as a term of the Purchase Order its general terms and conditions of
sale, which stated that the machine may be returned within thirty (30) days of the original
shipment date at which time it will refund the purchase price in full.
12. At the time of purchase Dominion was fully aware that R.R.I.C. intended to act solely as a
broker and was brokering the sale of the machine to a third party end customer.
13. The AGIE was picked up from Dominion's facility no earlier than January 13, 2006, and
delivered to the end customer.
14. On February 8, 2006, a representative of R.R.I.C. contacted Dominion advising that the
end customer was dissatisfied with the machine and therefore they elected to return the
machine.
15. On this date Dominion requested R.R.I.C. to, rather than return the machinery, attempt to
negotiate with the end customer to reach an agreement whereby a discount would be
provided in order to entice the customer to retain the machine.
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16. Based upon Dominion's request, R.R.I.C. commenced such negotiations rather than
commencing the process of returning the AGIE to Dominion.
17. On February 9, 2006, Dominion stated in writing that it would not accept the return of the
machine as it was outside the warranty.
18. On February 9, 2006, a thirty (30) day warranty period had not expired and therefore
Dominion's position was both factually and legally incorrect.
COUNTI
BREACH OF CONTRACT
19. Paragraphs one through seventeen are incorporated fully herein by reference.
20. Dominion has failed and refuses to accept the return of the AGIE pursuant to the terms of the
contract.
21. Dominion breached the warranty provision by failing and refusing to accept the return of the
AGIE prior to the expiration of the thirty (30) day warranty.
22. Due to Dominion's breach of the warranty, R.R.I.C. has been damaged as it had to return the
money paid by the end user, has had to incur additional rigging and shipping charges, and has
been required to maintain the AGIE without the ability, despite numerous attempts, to resell
the machine.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgement
for it and against Defendant in the amount less than $25,000.00, thereby requiring compulsory
arbitration, and further order the specific performance of the terms of the warranty.
Respectfully submitted,
LAW OFFICES OF MARK K. EMERY
By:!
?l
Mark K. Emery, Esquire
Supreme Court I.D. No. 72787
410 North Second Street
Harrisburg, PA 17101
(717) 238-9883
Attorney for Plaintiff
DATE: May 25, 2006
VERIFICATION
I, Candace Peck, President of R.R.I.C. Associates, Inc., hereby verify that I have read the
foregoing Complaint and that the information contained therein is true and correct to the best of
my knowledge, information and belief. I understand that false statements herein are subject to
the penalties of 18 Pa.C.S. § 4904 relating to unworn falsification to authorities.
Candace Peck
DATE: , "p $ 06
met I.C. ASSOCIATES, INCu
521: SIMPSON FERRY RD., SUITE 102 7171766-9621 TEL.
MECHANICSBURG, PA. 17050 7171796-9254 FAX
DONrRON AR
P. O, BOX 13901
ROANOKE,VA 24037
DATE DEC. 14, 2005
P. O.: 121405
SNIP: TO ADVISE
FOB: ROANOKE, VA
AGM ELOX AMERIiRON 100 CHC SINKER TYPE EVIL SIN 10005000003
(1993).
Table Size Z0' x 2V
Task Ske 250 x 40 • x W Deep
X Travel 13.7-
* Travel 11.7'
Z Traral 9.0"
I EQUIPPED VrKTW.
100 AMP POWW SUPPLY
FAMUC SYSTEM 11 CM CONTROL
ORBITAL SPINDLE
4 DIELECTIIC TANK, EIKTRA FILTERS A
n _.ACCESSORIES AND MANUALS
TRAINING AY
CONDITION - MACHINE TO DE IN GOOD OPERATING CONDITION WITH
NO BROKEN CASTINGS. 30 DAY RITUIIN PRWILEW F MACHINE
DOES NOT OPMATE PROPERLY MHiM PLACED UNDER POND MUST BE
MLE TO ORIENTATE AND ROT --s
TERMS -
1. PAYMENT IM FULL PRIOR TO 9HIPPM&
2_ TRAWSPORTATKUI - RESPONSB11LI Y OF RJLLC.
3. OIL AND CNIFS TO BE REMOVED FROM NROJCIMME PRKR TO LOADING.
E 9, 500.00
LESS 10%,
ACCEPTED: 1YGk `?Grr ?? _, _ DATE Z ,r/?+S
AUT.40 ED SIGNATUREITITLE
TERMS & CONDITIONS OF SALE
USED MACHINERY
30 DAY RETURN PRIVILEGE:
Most machines are said, as inspected, but carry a 30 day RETURNPRIVILEGF.. You may return the machine(s)
within 30 days from orilonal shipment date and we will refund the purchase price in full. Buyer is responsible for all
iccight, inbound and outbound, and all loading charges. This Return Privilege applies only to machines, which we.
own. ')'he nwchme(s) must be returned in the same condition that it left Dominion Air & Machinery's warehouse.
Dominion Air & Machinery Company shall not be responsible for any damages done by truckers, rigger,, or other
parties not under their direct control. Any machine damaged in shipping shall not be covered under this return
privilege. Any machine(s) not sold with a 30 return privilege will be sold and accepted "as is".
TERMS:
We accept cash, check, Visa or Master Card with order, and all machines are quoted PAYMENT IN FULL PRIOR TO
SHIPMENT, wrlesc otherwise stated. All machines offered subject to prior sale and prices quoted are exclusive of :my
govermnent sales tax. Machinery descriptions are intended only as a guide and their accuracy is not guaranteed.
Verification of descriptions, specifications, and condition are the responsibility of the buyer. It is also the huyer's
responsibility to ship, unload in place, wire and install unless otherwise stated in the sates agreement.
CONDITIONS:
'There are no warranties which extend beyond the description of the face hereof. Quotations arc subjcs:r to change
without notice. All agreements and/or contracts made by salesmen or representatives are subiect to approval by the
1-tome Office-Dominion Air & Machinery Co. These Terms and Conditions of Sale are subject to change without
notice.
MACHINE SAFETY:
It is the buyer's responsibility to provide proper safety devices and equipment to safeguard the operator from harm for
any particular use, operation or set up, and to adequately safeguard themachine, or machines, to conform to all Federal,
Slate and Local Government Safety Standards and All Industry Safety Standards.
INDEMNIFICATION:
User agrees to indemnity and hold harmless Seller of and from any and all claims or liabilities from accidents urvolvmg
ihesc machines caused by failure of user, his employees, or agents to follow instructions. warnings, w
reconttnendations available from the original manufacturer, or by failure of user to comply with Fedevil. Stec and
Local laws applicable to such equipment including the Occupational Safety and Health Act of 1970.
TOTAL P.02
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
R.R.I.C. ASSOCIATES, INC.,
Plaintiff CIVIL ACTION-LAW
V.
DOMINION AIR AND MACHINE
COMPANY,
Defendant
NO. 06-3053 CIVIL TERM
NOTICE TO PLEAD
TO: R.R.I.C. Associates, Inc., Plaintiff and their attorney
Mark K. Emery
You are hereby notified to file a written response to the within New Matter within 20
days from service hereof or a judgment may be entered against you.
McNALLACE & ICK LC
r
By
intano
I.D. No. g 45
Devin J. Chwastyk
I.D. No. 91852
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Attorneys for Defendant
Dated: June 22, 2006
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
R.R.I.C. ASSOCIATES, INC.,
Plaintiff
CIVIL ACTION-LAW
V.
DOMINION AIR AND MACHINE
COMPANY,
Defendant
NO. 06-3053 CIVIL TERM
ANSWER WITH NEW MATTER
Defendant Dominion Air and Machinery Company ('Dominion Air"), by and through its
attorneys, McNees Wallace & Nurick LLC, offers the following Answer with New Matter to the
Complaint of Plaintiff R.R.I.C. Associates, Inc. ("RRIC").
Answer
1. Admitted, upon information and belief.
2. Admitted, with the clarification that the correct name of the Defendant is
Dominion Air and Machinery Company.
3. Denied. It is denied that Dominion Air regularly transacts business in
Pennsylvania. On occasion, Dominion has been involved in business transactions in
Pennsylvania.
4. Denied. After reasonable investigation, Dominion Air is without sufficient
information to determine the truth or falsity of the averments of this paragraph, and Dominion
Air, therefore, denies these averments.
5. Denied. It is denied that Dominion Air sends unsolicited faxes to business in
Pennsylvania. To the contrary, Dominion Air does not send unsolicited faxes.
1
6. Denied. It is denied that Dominion Air regularly advertises inventory in trade
publications distributed in Pennsylvania. Dominion Air advertises in nationwide publications,
but does not regularly advertise in trade publications that target the Pennsylvania market.
7. Denied. It is denied that Dominion Air regularly ships machinery and materials
through Pennsylvania. Dominion Air does not regularly ship items through Pennsylvania.
8. Admitted. By way of further answer, Dominion Air provided the quote to RRIC
in response to RRIC's request for such a quote.
9. Admitted in part and denied in part. It is admitted that RRIC sent Dominion Air a
purchase order for an AGIE Elox Ameritron 100 CNC Sinker (the "AGIE Machine") and that a
copy of that purchase order is attached to the Complaint as Exhibit A. Any attempt by RRIC to
characterize the terms of the purchase order is denied, as the purchase order is a document that
speaks for itself.
10. Denied. It is denied that a condition of sale was a thirty-day return privilege if the
machine did not operate properly when placed under power, as described in the purchase order.
Although RRIC included this term in the purchase order, the term was modified by Dominion
Air to conform to Dominion Air's standard Terms and Conditions of Sale. The modification is
evident on the face of the purchase order.
11. Admitted in part and denied in part. It is admitted that Dominion Air included its
Terms and Conditions of Sale as part of the agreement between the parties. Any attempt by
RRIC to characterize the Terms and Condition of Sale is denied, as the Terms and Conditions of
Sale is a document that speaks for itself.
12. Admitted.
2
13. Denied. It is denied that the AGIE Machine was shipped no earlier than January
13, 2006. Rather, the AGIE Machine was shipped before January 13, 2006. After reasonable
investigation, Dominion Air is without sufficient information to determine the truth or falsity of
the averment that RRIC delivered the AGIE Machine to a third-party, and Dominion Air,
therefore, denies this averment.
14. Admitted in part and denied in part. It is admitted that, on February 8, 2006, a
representative of RRIC contacted Dominion Air regarding the AGIE Machine. It is denied that
RRIC elected to return the AGIE Machine or that such election was permitted under the terms of
the parties' agreement. Rather, the return of the AGIE Machine was not permitted at that time.
15. Admitted in part and denied in part. It is admitted that Dominion Air attempted to
negotiate a resolution of RRIC's concerns regarding the AGIE Machine. To the extent that the
averments of this paragraph imply that Dominion Air improperly avoided its obligations under
the parties' agreement, the averments of this paragraph are denied. Dominion Air has fulfilled its
obligations under the parties' agreement.
16. Admitted in part and denied in part. It is admitted that RRIC had discussions with
Dominion Air regarding a resolution of RRIC's concerns with the AGIE Machine. After
reasonable investigation, Dominion Air is without sufficient information to determine the truth
or falsity of the averments of this paragraph concerning RRIC's motivation for its conduct, and
Dominion Air, therefore, denies these averments.
17. Admitted.
18. Denied. It is denied that the warrant period had not expired on February 9, 2006.
To the contrary, the warranty period had expired by that date. The remaining averments of this
paragraph constitute conclusions of law to which no response is required. To the extent a
3
response is deemed required, the averments of this paragraph are denied. Dominion Air's
position was factually and legally correct.
COUNTI
BREACH OF CONTRACT
19. Dominion Air incorporates herein by reference paragraphs 1 through 18 of its
Answer with New Matter.
20. Admitted in part and denied in part. It is admitted that Dominion Air has refused
to accept the return of the AGIE Machine. The averments of this paragraph alleging that
Dominion Air's refusal to accept the return of the AGIE Machine is a violation of the terms of
the parties' agreement are conclusions of law to which no response is required. To the extent a
response is deemed required, these averments are denied. By way of further answer, Dominion
Air has fulfilled its obligations under the parties' agreement.
21. Denied. The averments of this paragraph constitute conclusions of law to which
no response is required. To the extent a response is deemed required, the averments of this
paragraph are denied. Dominion Air has fulfilled its obligations under the parties' agreement.
22. Denied. The averments of this paragraph constitute conclusions of law to which
no response is required. To the extent a response is deemed required, the averments of this
paragraph are denied. Dominion Air has fulfilled its obligations under the parties' agreement.
RRIC has not been damaged by the actions of Dominion Air.
WHEREFORE, Defendant Dominion Air and Machinery Company requests judgment in
its favor and against Plaintiff R.R.I.C. Associates, Inc., together with costs and such other relief
as the Court deems just and proper.
New Matter
4
23. Dominion Air incorporates herein by reference Paragraphs I through 22 of its
Answer with New Matter.
24. The Complaint fails to state a claim upon which relief can be granted.
25. At all times relevant hereto, Dominion Air fulfilled its obligations under the terms
of the parties' agreement.
26. Dominion Air's Terms and Conditions of Sale, a copy of which is attached to the
Complaint, were part of the parties' agreement.
27. The Terms and Conditions of Sale provided for a return privilege within thirty
days of the original shipment date.
28. The bill of lading for the AGIE Machine, a copy of which is attached to the
Complaint, indicates that the shipment date was January 9, 2006.
29. The time period during which return of the AGIE Machine was permitted under
the Terms and Conditions of Sale had expired by the time RRIC sought to return the AGIE
Machine.
5
WHEREFORE, Defendant Dominion Air and Machinery Company requests judgment in
its favor and against Plaintiff R.R.I.C. Associates, Inc., together with costs and such other relief
as the Court deems just and proper.
McNEES WALLACE & NURICK LLC
By
andice . b 'ntano
I.D. No. 86 5
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Attorneys for Defendant Dominion Air and
Machinery Company
Dated: June 22, 2006
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the foregoing
document was served by first-class mail, postage prepaid, upon the following:
Mark K. Emery
Law Offices of Mark K. Emery
410 North Second Street
Harrisburg, PA 17101
andice J. G rintano
Counsel for Defendant
Dated: June 22, 2006
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R.R.I.C. ASSOCIATES, INC
Plaintiff
vs
DOMINION AIR AND
MACHINE COMPANY
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 06-3053
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ANSWER TO NEW MATTER
AND NOW, comes R.R.I.C. Associates, Inc., by and through their attorney, Mark
K. Emery, Esquire, and files this Answer to New Matter, as follows:
23. No response required.
24. Denied as a conclusion of law.
25. Denied as a conclusion of law. By way of further rsponse, Dominion failed to
fulfill its obligations per the terms of written contract between the parties.
26. Paragraph 26 refers to a written document which speaks for itself, and therefore
Paragraph 26 is denied.
27. Paragraph 27 refers to a written document which speaks for itself, and therefore
Paragraph 27 is denied.
28. Paragraph 28 refers to a written document which speaks for itself, and therefore
Paragraph 28 is denied. By way of further response, the Bill of Lading was not
made
29. Paragraph 29 refers to a written document which speaks for itself, and therefore
Paragraph 29 is denied.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter
judgement for it and against Defendant in the amount less than $25,000.00, thereby
requiring compulsory arbitration, and further order the specific performance of the terms
of the warranty.
Respectfully submitted,
LAW OFFICES OF MARK K. EMERY
By ?d _
Mark K. Emery, Esquire
Supreme Court I.D. No. 72787
410 North Second Street
Harrisburg, PA 17101
(717) 238-9883
Attorney for Plaintiff
DATE: July 17, 2006
2
CERTIFICATE OF SERVICE
AND NOW, this 174i day of July, 2006, I, Mark K. Emery, Esquire do hereby
certify that I have served the Answer to New Matter by mailing a true and correct copy
via United States first class mail, addressed as follows:
Kandice Giurintano
McNees Wallace & Nurick
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
LAW OFFICES OF MARK K. EMERY
B V.
Mark K. Emery
Curtis R. Long
Prothonotary
VINfiCC Of the Protbonotarp
Cumberfalab (Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
01, nt-3 CVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R C P 230.2.
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573