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Home My WebLink About01-5473 AJAY SERVICES, INC., Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO 2001 - \~Lj73 C i\J; I DANA CORPORATION, Defendants CIVIL ACTION - LAW 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA (717) 249-3166 AJAY SERVICES, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO 2001- tfL-/7 3 c(vII DANA CORPORATION, Defendant CIVIL ACTION - LAW COMPLAINT AND NOW comes the Plaintiff, AJAY Services, Inc., by its attorney, George A. Vaughn, III, and files the following Complaint, in support of which it is averred that: 1. The Plaintiff, AJAY Services, Inc. ("AJAY"), is a Pennsylvania business corporation authorized to do business within the state of Pennsylvania with its office and principal place of business located at 651 Market Street, Lemoyne, Cumberland County, Pennsylvania. 2. AJAY does business under the registered fictitious name of Cleanteam Building Services Company. 3. The Defendant, DANA Corporation ("DANA"), is a business corporation conducting business at 21 Roadway Drive, Carlisle, Cumberland County, Pennsylvania ("Property"). 4. AJAY and DANA entered into a written contract dated May 16, 2000 ("Contract"), a true and correct copy of which is attached hereto as Exhibit flAil. 5. The term of the Contract was for a period of one year commencing on May 16, 2000, and ending on May 15, 2001. 6. Termination of the Contract prior to May 15, 2001, could C:\L WORK\M1SC\G09040 I B. WPD occur only if a party failed to reasonably fulfill its obligations under the Contract. 7. Termination of the Contract prior to May 15, 2001, required that thirty (30) days' prior written notice be given by the terminating party to the non-terminating party. 8. Pursuant to the Contract, AJAY provided certain cleaning and janitorial services to DANA at the Property. 9. At all times relevant to this Complaint, AJAY performed and discharged all of its duties and obligations under the Contract in a good and workmanlike manner in full compliance with the terms of the Contract. 10. On or about December 19, 2000, DANA, acting by and through its duly authorized agent or employee, Jeffrey N. Spangler, verbally terminated the Contract. 11. On December 20, 2000, DANA allowed AJAY to perform services under the Contract only until 3:00 PM and thereafter refused to allow access to the Property by the agents or employees of AJAY. 12. The actions of DANA hereinabove described were in direct violation of the terms and provisions of the Contract because at no time did AJAY fail to reasonably perform its obligations under the Contract. 13. The actions of DANA hereinabove described were in direct violation of the terms and provisions of the Contract because DANA gave AJAY verbal instead of written notification of early termination of the Contract. 14. The actions of DANA hereinabove described were in direct violation of the terms and provisions of the Contract because DANA C:\L WORK\MISC\G090401 B. WPD - 2 - did not give thirty (30) days' prior notice of its intention to terminate the Contract. 15. The attempt by DANA to terminate the Contract prior to May 15, 2001, and the conduct of DANA in excluding AJAY from the Property constituted a material and substantial breach and violation of the Contract by DANA. 16. As a result of DANA's breach and violation of the Contract, AJAY has sustained direct and immediate losses for which DANA is solely responsible totalling $12,953.25 all as itemized in a letter from Bruce D. Schwartz to Jeffrey N. Spangler dated January 22, 2001, a true and correct copy of which is attached hereto as Exhibit "B". 17. Accompanying the letter of January 22, 2001, from AJAY to DANA was an invoice dated January 18, 2001 (llInvoicell) I for the amounts owed by DANA to AJAY requiring payment within 15 days. 18. DANA has not paid to AJAY any portion of the balance due under the Invoice. 19. Pursuant to Paragraph B(l) of the Contract, accounts more than sixty (60) days in arrears accrue interest at the rate of 1.5% per month. 20. DANA's unpaid account is more than sixty (60) days in arrears. 21. Interest in the amount of $1,554.40 has accrued on DANA's unpaid account from January 18, 2001, to August 18, 2001. 22. Interest in the amount of $194.30 will continue to accrue on DANA's unpaid account for each additional 30-day period from and after August 18, 2001, that the account remains unpaid. 23. Pursuant to Paragraph E(l) of the Contract, AJAY is entitled C:\L WORK\MISC\G09040] B. WPD - 3 - to the reasonable costs of collection of DANA's unpaid account, including reasonable attorney's fees. 24. As of the date of the filing of this Complaint, the reasonable costs of collection of DANA's unpaid account are $500.00 together with such court costs as may be of record in this action. 25. As of the date of the filing of this Complaint, AJAY has not received payment of any portion of the Invoice or the other amounts due AJAY as herein set forth. WHEREFORE, AJAY demands judgment against DANA in the amount of $15,007.65 increased by $194.30 for each 3D-day period after August 18, 2001, that payment is not made, together with such additional reasonable costs of collection as may be incurred by AJAY and the costs of suit. Dated: C-1j; 3/0/, ( , 2001 Respectfully Submitted, '~~~~I Attorney for Plaintiff Supreme Court 1.0. #25650 3904 Trindle Road Camp Hill, PA 17011 (717) 975-9102 C:\L WORK\MISC\G09040 I BWPD - 4 - VERIFICATION On behalf of AJAY Services, Inc., Plaintiff, I, BRUCE D. SCHWARTZ, President of AJAY Services, Inc., verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities. Dated: "] , 2001 i ;' / ! ~ C:\L WORK\MISC\G09040 1 B,WPD - 5 - EXHIBIT A Contract C:\L WDRK\MISC\G09040 1 B,WPD CLEANTEAM BUILDING SERVICES COMPANY Contract for Janitorial Services WITNESS THIS CONTRACT (hereinafter called Contract) made this 16th day of May, 2000 by and between AJAY SERVICES, INC., doing business as CLEANTEAM Building Services Company, a Pennsylvania Corporll1ion (hereinafter referred to as "CLEANTEAM"), and DANA Corporation (hereinafter referred to as the "Client"). In consideration of the mutual promises hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, CLEANTEAM and the Client agree as follows: PURPOSE: CLEANTEAM will provide janitorial and other related services to the Client at 21 Roadway Drive, Carlisle, Pa. CLEANTEAM retains the right to perform the services required which are outlined in detail and sum in any and all attached specifir.ations, correspondence and exhibits, by any reasonable means and in any reasonable manner it sees frt. II I TERM: The term of this Contract shall commence June 1,2000 and shall continue for a period of one (1) years. Said Contract shall thereafter continue in full force and effect for one (1) year periOds unless and until either party gives thirty (30) days written notice of its intention to terminate. Provided, however, either party shall have the right to terminate this Contract, should either party fail to reasonably fulfill its obligations as agreed, but only by giving thirty (30) days written notice to the other party of its intention to terminate, such thirty (30) days to commence running upon the other party's receipt of said notice. Receipt of a termination notice by either party shall automatically terminate this Contract upon the expiration of the applicable notice period, unless both parties agree to reinstate this Contract. III COMPENSATION: The Client agrees to pay CLEANTEAM for its services in the amount and manner set forth below. A. Base Amount and Adjustments. 1 . CLEANTEAM'S compensation shall be based on the number of hours worlled in each job classification plus a percentage of that rate for cleaning supplies. The invoice amount is arrived at by multiplying the number of hours worlled by the each job classification times the rate charged to the Client. Item/Classification Rate/hr Chamed Industrial Custodian Supplies Project Worller $12.56/hr % 9.5/hr rate $14.99/hr + materials associaiea with project wvr'~ It ic- o"....li......... .................t ...._..._. .__ ....._.. ..... _ _ _ __ ~ __ _ _~,_ IV WORK WEEK: A. CLEANTEAM will provide the Client with its services five days each week, Monday through Friday, excluding statutory holidays. Statutory holidays are recognized as New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day. Upon three (3) days written notice by the Client, CLEANT~M will perfonn services on SatUrday and Sunday at the nonnal dally rate described In paragraph A 1 and A3 B. Client will Insure that CLEANTEAM employees and agents have acceSSibility to equipment and areas requiring service at all reasonable times. C. It is understood that CLEANTEAM shall be held hannless for any situation in which CLEANTEAM is prevented from perfonning the specified services heieln because of extemal forces, including but not limited to "Acts of God", strikes, picketing, floods, tomadoes, etc. V INSURANCE: CLEANTEAM agrees to obtain and maintain in effect at all times during the tenn of this contract the follOWing insuranca: werller's compensation with stawtory limits, comprehensive general liability with limits of not less than $1,000,000.00 for bodily Injury and property damage. VI CONFORMANCE WITH LEGAL OBLIGATIONS: The Client agrees to keep, or cause to be kept, all its facilities in confonnity with all applicable federal, state, or local laws, ordinances and regulations and agrees to Indemnify ClEANTEAM and hold CLEANTEAM hannless for any loss or injury caused by the Client's failure to abide by the terms of this Article. CLEANTEAM agrees to make the Client whole for any physical damage it Is proved was caused by CLEANTEAM'S employees during the course of their employment. VII HIRING RESTRICTIONS: It is understood that during the tenn of this contract and for one (1) year thereafter the CLIENT shall not, directly or indirectly, hire any person employed by CLEANTEAM VIII APPLICABLE LAW: This Contract shall be govemed by the laws of the Commonwealth of Pennsylvania. IX BINDING: This Contract shall insure to and bind all parties, their successors, assigns, agents, or representatives. X ENTIRE A(.;,RF=F=UJ:f\lT. Thlc. ,.."............... ......_....1__ &1.._ __.t.L_ EXHIBIT B Letter of January 22, 2001 (including Invoice) C:\L WORK\MISC\G09040 1 B.WPD BUILDING SERVICES COMPANY 651 Market Street. Lemoyne, Pennsylvania 17043 January 22, 200 I Mr. Jeffrey N. Spangler Safety & Facilities Manager DANA Corporation 21 Roadway Drive Carlisle, PA 17013 Dear Mr. Spangler: Enclosed is a final invoice in the amount of$12,953.25. This represents the gross profit we would have earned, if we had the opportunity to complete the remaining term of our contract The contract began June 01, 2000 and was to end May 31, 2001. Over a one (1) year period, we normally submit thirteen (13) invoices, each representing four (4) week periods of service. To determine the amount of gross profit we would have earned, we first had to calculate the average invoice. Thus far, we invoiced seven (7) full four (4) week periods, the last being ll/19/oo-12/16/00., The total billing of these seven (7) invoices without sales tax, was $48,678.21. nus results in an average invoice of $6,954.03. Given our gross profit margin 000%, we earn an average of $2,086.21 in gross profit each four (4) week period. The gross profit margin percentage used is from our most recent annnal financial statement, for the year ending 12/31/99. The enclosed invoice is broken down to show the gross profit we were denied from earning in each four (4) week periods remaining in the contract. An adjustment was made for the invoice we previOusly submitted for the several days of service between 12/17/00-12/20/00. Also, the last four (4) week period of the contract was prorated as it includes 19 days, rather than the normal 20. 11 also includes sales tax. I should call your attention to the following provisions in our contract: "The Client shall pay CLEANTEAM the reasonable costs of collection of said payment, including reasonable attorney's fees. Accounts which are more than sixty (60) days in arrears are subject to late charges. Interest will be added at the rate of one point five percent (J.5%)per month on post due accounts. " L (717) 763-7444 . Fax: (717) 975-3382 . E-mail: sixfiveonemarket@aol.com CLEANTEAM BUILDING SERVICES CO . 651 Market Street LEMOYNE, PA 17043-1514 InvoicE! 8889 A Div, of Ajay Services, Inc. (717) 763.7444 FAX (717) 975-3382 TO DANA ENGINE CONTROLS DISTRIBUTION 2TR:OAbwAYbR:fVE CARLISLE PA 17013 DATE 01 ,,1 f:l"Q1 Joe NO. JOB NAME ATTN: JEFF SPANGLER ..JOB LOCA nON TERMS NET 15 DAYS > PROOUCTS, 1 1 "I 1 1 1 1 1 Subtotal > GROSS PROFIT REMAINING TO BE EARNED SERVICES, YNPJ;;RTJ;;RMS mOf"""CONTRACT " ENDING, 5/31/01 PERIOD: 12/17/00 - 1/13/01 1/14/(}1m~ 2/10/01 2/11/01 - 3/10/01 ,mmm "3/l1/01m~4/07/01m 4/08/01 - 5/05/01 5/06/01m~6/02/01(PRORATEDTHROOGH" 5/31/01 LESS 30% OF 642.46 INVOICED :ffiR SEVERAL DAYS WORKED "m "" m, "'" 'mmm 'INPERIOD12/17/00"1/13/01 2,086 : 21 2,086 1 21 2,086 : 21 2,086 '21 2,086 : 21 '" 1~981' 'i 89 ( 192 : 89 Subtotal 1 1 220 1 05 ~~.i~t Tax 733 '20 1 f '25 1 Total 12,953 (A-I To_r. 800-225-8380 or nebs.com Thank You (') c:: -of~ rr'i] i ' 7 ;:;=:c:, Ct~" ..:::.. ". ~~C' -t."'(~ ~ C:J ~/) '1 -"0 f\ ,r, -,-) (...) :.) Iv ::n .... ~,~.) f:'J ~~~-) ~-4::: C'-SJ--:::7 ('oj ". (: -:;-'" ]fr~ ;:3 .:-.:0 cl~i~ .,,,:: ._~J c> " ~D rt ~ \ . .() ::r ~ c'-; 0_ l' ~ &: rh \X) ~ --3 ~ t;:j "- ~ ~r - - - ~ ~ o ~ "- = ~ ,...J:i 3: "1il .~ "'OJ) n:l 0 C N .......J c.:: OJ 0 ""'..... > ~ ~ OJ ~ >- ";' l'""'"'">--g~ILn . Q) ._ C ....... ~E~iJ.) C1 ~ 0 a...-- Q,):t:j C!;-'" ~ "ll!l<( '" = "- '" M I - o 0.. CIl E o U '""'~_'<"'::":'_"_'_...,,;,,'(>!_";,f':_ "~,;;",~~",~...:"""""-'''1o.:l.''~.;;'%':~i,,,~:1,_':;_'::,'''~-9:.}~:(-~ - 'c;;'T:;i:_(,~r,i,,;;;-;;.."<a',v~;:-._,",; -'---" --,--.-, ~.-, \,.~ MCNEES, WALLACE Be NURICK 100 PINE STREET -" ~ p, 0, BOX 1 UI6 HARRISBURG. PA 17108 A.lA Y SERVICES, INC, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 2001-5473 DANA CORPORATION, DeCendant CIVIL ACTION - LA W PRAECIP~; FOR I,:NTRY OF APPEARANCE TO: Curt Long, PROTHONOTARY, CUMBERLAND COUNTY: Please enter our appearance as attomcys Cor Defendant Dana Corporation in the ahove action. McNEES, WALLACE & NURICK BY~ '/lh/2~{f , Donald B. Kaufman -{t.J, I.D, No. 49674 Susan V. Metcalfe I.D. No. 85703 100 Pine Street P.O. Box I 166 Harrisburg, I' ^ 17 I 08-1166 (717) 232-8000 Attorneys lor Defendant Dana Corporation Dated: Oetoher 10.2001 " , CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Praecipe for Entry of Appearance was served by first class mail, postage prepaid, upon the following: George A. Vaughn, III 3904 Trindle Road Camp Hill, PA 17011 ~ y,J04.- Susan V. Metcalfe Of Counsel for Defendant, Dana Corporation Dated: October 10, 2001 ~. . D ':1:1F ~ F$ ~ fJ C;l <:" ...... ):f ~8 ~ ;:'';q ;e ~:sr.~ ~ !V rS;z, ~ c:,' 6-9 ~ ~ ~ MCNEES, WALLACE & NURICK 100 PINE STREET 1". O. BOX l1se HARRISBURG, PA 17108 AJA Y SER VICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff v. NO. 2001-5473 DANA CORPORATION, Defendant CIVIL ACTION - LA W NOTICE TO PLEAD TO: AJA Y SERVICES, INC., and GEORGE A. VAUGHN, Ill, Esquire, their attorney YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER PURSUANT TO PA. R. CIV. P. 2252(d) WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. McNEES WALLACE & NURICK LLC BY~?~' Jl.L- If Donald B. Kauf~ { 1.0. No. 49674 Susan V. Metcalfe 1.0. No. 85703 100 Pine Street P.O. Box 1166 Harrisburg, PAl 71 08-1166 (717) 232-8000 Attorneys for Defendan( Dana Corporation Dated: October /& ,2001 ... l' . , r I . AJAY SERVICES, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 2001-5473 DANA CORPORATION, Defendant CNIL ACTION - LAW ANSWER WITH NEW MATTER AND COUNTERCLAIM Defendant Dana Corporation ("Dana"), by and through its attorneys McNees Wallace & Nurick LLC, for its Answer to the Complaint, avers as follows: I. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph I, and they are therefore denied. 2. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 2, and they are therefore denied. 3. Admitted that Dana is a corporation which maintains an Engine Management Division plant located at 21 Roadway Drive, Carlisle, Cumberland County, Pennsylvania ("Carlisle Plant"). 4. Admitted. 5. Denied. Paragraph 5 sets forth conclusions of law to which no responsive pleading is required. To the extent an answer is deemed necessary, however, the contract is a document that speaks for itself and Plaintiff's characterization of it is therefore denied. .. (l . , r I . 6. Denied. Paragraph 6 sets forth conclusions oflaw to which no responsive pleading is required. To the extent an answer is deemed necessary, however, the contract is a document that speaks for itself and Plaintiff s characterization of it is therefore denied. 7. Denied. Paragraph 7 sets forth conclusions of law to which no responsive pleading is required. To the extent an answer is deemed necessary, however, the contract is a document that speaks for itself and Plaintiffs characterization of it is therefore denied. 8. Denied as stated. It is admitted that the contract required Plaintiff AJA Y Services, Inc. ("AJAY") to provide cleaning and janitorial services to Dana's Carlisle Plant. It is denied that AJA Y fulfilled its obligations under the contract. 9. Denied. Paragraph 9 sets forth conclusions oflaw to which no responsive pleading is required. To the extent an answer is deemed necessary, however, paragraph 9 is denied. AJA Y failed to perform and discharge its duties under the Contract in a good and workmanlike manner and failed to comply with the terms of the Contract. 10. Admitted. By way of further answer, Dana also gave written notice of termination by letter dated December 20, 2000, which is attached hereto as Exhibit A. II. Denied. Dana did not refuse to allow access by "the agents or employees of AJA Y" to Dana's Carlisle Plant. On December 20,2000, Dana refused access to Joe Pesco, an employee of Cleanteam Building Services Company ("Cleanteam"); however, no other Cleanteam employees were barred from the plant. On the contrary, Dana requested that Cleanteam assign an employee to replace Mr. Pesco. 12. Denied. Paragraph 12 sets forth conclusions oflaw to which no responsive pleading is required. To the extent an answer is deemed necessary, however, it is denied that "at 2 r. (I . no time did AJA Y fail to reasonably perform its obligations under the contract." Paragraph 9, above, is incorporated herein by reference. 13. Denied. Paragraph 13 sets forth conclusions oflaw to which no responsive pleading is required. To the extent an answer is deemed necessary, it is denied that "Dana gave AJA Y verbal instead of written notification" of termination. Dana gave AJA Y oral and written notification of termination. Paragraph 10, above, is incorporated herein by reference. 14. Denied. Paragraph 14 sets forth conclusions oflaw to which no responsive pleading is required. To the extent an answer is deemed necessary, however, it is denied that Dana failed to give 30 days prior notice of termination. Paragraph 10, above, is incorporated herein by reference. 15. Denied. Paragraph 15 sets forth conclusions oflaw to which no responsive pleading is required. To the extent an answer is deemed necessary, however, it is denied that Dana excluded AJA Y from the property, and it is denied that Dana breached the contract in any way. Paragraph 1 I, above, is incorporated herein by reference. 16. Denied. Paragraph 16 sets forth conclusions oflaw to which no responsive pleading is required. To the extent an answer is deemed necessary, however, it is admitted that the document attached to Plaintiff's Complaint as Exhibit B is a true and correct copy of a letter from Bruce D. Schwartz to Jeffrey N. Spangler dated January 22,2001; however, the accuracy and truth of the letter's content is denied. It is denied that Dana breached or violated the contract, and that AJA Y is entitled to any damages. 17. Admitted in part and denied in part. It is admitted that Dana received the letter of January 22,2001, and the invoice accompanying it. It is denied that Dana owed AJAY the amount, or any portion thereof, indicated on the invoice dated January 18,2001. 3 . , , , ,. 18. Denied. Paragraph 18 sets forth conclusions of law to which no responsive pleading is required. To the extent an answer is deemed necessary, however, paragraph 18 is admitted in part and denied in part. It is admitted that Dana has not paid any sums indicated on the invoice dated January 18, 2001. It is denied that Dana owed AJAY the amount, or any portion thereof, indicated on the invoice dated January 18,2001. 19. Denied. Paragraph 19 sets forth conclusions oflaw to which no responsive pleading is required. To the extent an answer is deemed necessary, however, the contract is a document that speaks for itself and Plaintiffs characterization of it is therefore denied. It is denied that Dana owes any amount claimed by the January 18,2001 invoice. 20-22. Denied. Paragraphs 20-22 set forth conclusions of law to which no responsive pleading is required. To the extent an answer is deemed necessary, however, it is denied that Dana owes any amount of money to AJA Y. 23. Denied. Paragraph 23 sets forth conclusions oflaw to which no responsive pleading is required. To the extent an answer is deemed necessary, however, the contract is a document that speaks for itself and Plaintiff s characterization of it is therefore denied. Defendant denies that it owes any amount of money to AJA y, 24. Denied. Paragraph 24 sets forth conclusions of law to which no responsive pleading is required. To the extent an answer is deemed necessary, however, it is denied that Dana owes any amount of money to AJA Y. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations regarding the costs of collection, and they are therefore denied. 4 , . . . " 25. Denied. Paragraph 25 sets forth conclusions oflaw to which no responsive pleading is required. To the extent an answer is deemed necessary, however, paragraphs 17 and 18, above, are incorporated herein by reference. WHEREFORE, Defendant Dana Corporation respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff together with costs and such other relief the Court deems just. NEW MATTER 26. Paragraphs] -25, above, are incorporated herein by reference. 27. Pursuant to the written agreement entered into by Dana and AlAY on May ]6, 2000 (the "Contract"), AlA Y agreed to provide janitorial and other related services to Dana at its Carlisle Plant. 28. For several months prior to December 19, 2000, AlA Y failed to perform its obligations under the contract. 29. AJA Y's performance deficiencies included, inter alia: a. inattention to detailed mopping, scrubbing, dusting, and wiping in restrooms, break areas, and offices; b. improper stripping and waxing ofti]ed floors, causing an excess buildup of wax and resulting in hairs and other foreign objects becoming imbedded in the wax layer; c. trash cans with food residue not being cleaned for weeks at a time; d. the misappropriation of recycling proceeds; and e. the refusal of AlA Y employee Joe Pesco to perform recycling tasks. 30. Dana communicated these deficiencies to AJA Y's Cleanteam account representative, Chris Coller, and AlA Y's field supervisor, Herman Cochrane, on several occasions during the months preceding December 19,2000. 5 " " , r " . 3]. Section II of the Contract provides that the Contract shall continue for one year, "unless and until either party gives thirty (30) days written notice of its intention to terminate." 32. Section II of the Contract further provides that "receipt of a termination notice by either party shall automatically terminate this Contract upon the expiration of the applicable notice period, unless both parties agree to reinstate this Contract." 33. Section XI of the Contract provides that all notices and other written communications shall be deemed to have been duly given to AlA Y if sent by registered or certified mail, return receipt requested, to Bruce D. Schwartz, President, CLEANTEAM Building Services Company, 651 Market Street, Lemoyne, P A 17043. 34. On December 19,2000, Dana gave oral notice of termination to AlAY employee Chris Coller. 35. On December 20,2000, Dana instructed Joe Pesco not to return to Dana's Carlisle Plant. 36. Dana did not instruct any other AlA Y employee not to report for work at Dana's Carlisle Plant, or otherwise bar AlA Y employees from the Carlisle Plant. 37. AlA V's second-shift employees, Gail Pesco and Pat Eckert, failed to report for work at Dana's Car]isle Plant on the afternoon of December 20,2000. 38. By letter dated December 20, 2000 ("Termination Letter"), a true and correct copy of which is attached hereto as Exhibit A, Dana gave written notice oftermination in accordance with Section II of the Contract. 39. On December 20,2000, Dana faxed the Termination Letter to Bruce D. Schwartz at AlA y. Dana also sent the Termination Letter to Bruce D. Schwartz, with a copy to Chris 6 I " ~ Coller, at the address specified in Section XI of the Contract, via certified mail, return receipt requested. True and correct copies of the certified mail receipts are attached hereto as Exhibit B. 40. As indicated on the certified mail return receipts, AJA Y signed for receipt of the Tennination Letter on December 26, 2000. 41. In its Tennination Letter, Dana requested that AlA Y either waive the 30-day notice period provided in Section II of the Contract, or provide an alternate full-time day shift person to replace Joe Pesco. 42. By letter dated January 2,200], a true and correct copy of which is attached hereto as Exhibit C, Dana again requested that AlA Y waive the 30-day notice period. 43. By letter dated January 4,200], a true and correct copy of which is attached hereto as Exhibit D, AJA Y refused to waive the 30-day notice period and refused to provide janitorial services during the 30-day period. 44. AlA Y provided no janitorial services to Dana after December 20, 200]. 45. AlA Y sent Dana a final invoice for janitorial work perfonned from December] 7, 2000 to December 20,2000. A true and correct copy of the invoice, dated January ]8, 200], is attached hereto as Exhibit E. 46. Dana paid the invoice for janitorial services rendered from December 17, 2000 to December 20, 2000. 47. At all times, Dana perfonned its obligations under the Contract. 48. Dana gave effective written notice oftennination of the Contract, pursuant to Section II therein, on December 26, 2000. 49. AlA Y breached the Contract by failing to provide janitorial services after December 20, 2000. 7 , " . 50. Because of AlA V's breach, Dana was under no obligation to perform under the Contract as of December 21, 2000. 5]. If any amounts are found to be due and owing Plaintiffby Defendant, which is expressly denied, then, in said event, Defendant is entitled to set off the amounts due and owing it by the Plaintiff as more fully described below in Defendant's Counterclaims. WHEREFORE, Defendant Dana Corporation respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiff together with costs and such other relief the Court deems just. COUNTERCLAIM-BREACH OF CONTRACT 52. Paragraphs I-51, above, are incorporated herein by reference. 53. At all times, Dana performed its obligations under the Contract. 54. Dana gave AlAY oral notice of termination on December 19,2000, and written notice of termination of the Contract by letter dated December 20,2000. 55. AJA Y refused to waive the 30-day notice period provided by Section II of the Contract. See Exhibit D. 56. AJA Y further refused to provide janitorial services during the 30-day notice period. See Id. 57. AJA Y breached the Contract by refusing to provide janitorial services during the 30-day notice period. 58. As a direct result of AlA V's breach of Contract in failing to provide janitorial services after December 20,2000, Dana was forced, from December 21,2000 through January 14,2001, to utilize two members of its production staff to perform essential cleaning tasks that should have been performed by AJA Y. 8 " --~---~"_. ...---....- .-..-- , , , 59. Because Dana was forced to use its production employees to perform janitorial services, Dana lost a significant amount of valuable production time, and incurred damages thereby. 60. AlA Y further breached the Contract by failing to render janitorial services in a good and workmanlike manner, as described above in paragraph 29. 61. As a direct result of AlA V's breach by failing to render janitorial services in a good and workmanlike manner, Dana was forced to hire a cleaning service to perform a remedial cleaning and to strip the wax build-up from the floor of Dana's Carlisle Plant. 62. This remedial cleaning and wax-stripping, which was necessitated by AlA V's failure to perform its contractual obligations in a good and workmanlike manner, cost Dana $],901.64. 63. AlA Y further breached the Contract by providing and charging Dana for janitorial personnel who misappropriated recycling proceeds which rightfully belonged to Dana. 64. As a direct result of AlA V's breach, as described in paragraph 63, above, Dana incurred damages in the form oflost recycling proceeds. 65. AlA Y further breached the Contract by providing and charging Dana for janitorial personnel who did not render services adequately, efficiently, or in a good and workmanlike manner. 66. As a direct result of AlA V's breach, as described in paragraph 65, above, Dana was damaged by having to pay for janitorial services that were not rendered adequately, efficiently, or in a good and workmanlike manner, and by having to pay for additional janitorial staff to compensate for these deficiencies. 9 WHEREFORE, Defendant Dana Corporation respectfully requests this Honorable Court to enter judgment in its favor on Defendant's Counterclaim, in an amount less than $25,000, and against Plaintiff, together with costs and such other relief the Court deems just. McNEES WALLACE & NURICK LLC By b~bL~ J.D. No. 49674 Susan V. Metcalfe I.D. No. 85703 100 Pine Street P.O. Box 1166 Harrisburg, P A ] 7108-1166 (717) 232-8000 Attorneys for Defendant Dana Corporation Dated: October /, ,2001 10 I ! Exhibit A '~ WORLD HEADQuARTERS. LAW DEPARTMENT December 20, 2000 VIA FAX -717-975-3382 Mr. Bruce D. Schwartz, President Cleanteam Building Services Company 651 Market Street Lemoyne, Pennsylvania 17043 Re: Contract for Janitorial Services Dated May 16, 2000 Between Ajay Services, Inc. (d/b/a! Cleanteam) and Dana Corporation Dear Mr. Schwartz: For the past several months, Cleanteam's performance of cleaning services at our Roadway Drive facility in Carlisle, Pennsylvania, has been below acceptable levels. This letter shall serve to note a few of those areas where Cleanteam has failed to reasonably fulfill its obligations and shall serve as written notice of termination in accordance with Section 2 of the captioned Agreement. The performance deficiencies noted in this letter were communicated to the Cleanteam account representative, Chris Coller, and the field supervisor, Herman Cochran, on several occasions over the last few months. Since that time, we have seen no improvement in Cleanteam's performance of cleaning services at our facility. Perfonnance deficiencies that were noted and that remain include: inattention to detailed mopping, scrubbing, dusting, and wiping in restrooms, break areas, and offices; improper stripping and waxing of tiled floors, causing an excess buildup of wax and resulting in hairs and other foreign objects becoming imbedded in the wax layer; and trash cans with food residue not being cleaned for weeks at a time. Furthermore, Cleanteam's full-time day shift person has now refused to perform modest recycling tasks which were previously his responsibility. We have lost confidence in Cleanteam and in Cleanteam's personnel. , In light of the foregoing, we would request that you waive the 30 day notice period provided in Section 2, and permit us to begin immediately to retain a replacement cleaning service. In any event, we cannot continue to monitor the performance of individuals who refuse our reasonable requests. Therefore, your current full-time day shift person, Joe Pesco, will no longer be permitted access to our facilities. If you insist on strict compliance with the 30-day notice provision of the Agreement, we require that ~-r~,f~If/.tf DANA CORPoRATION P.o. BOX 1000 TOlEDO. OHIO 43eG7. 'TEL': {41GI 535~"1500 FAX: (04'Q) 535-4700 you provide, for our review and consideration, an alternate full-time day shift person as promptly as possible. Please contact me if you have any questions regarding the contents of this letter. Best regards. SEKlsf cc: Chris Coller (Via Fax) g:\userslskeller\misclschwartz-12.19-OO.doc , r Exhibit B , . SENDER: Complete items 1 and 2 when additional services are desired. and complete kerns 3~d4. . Put your addre . '1"!,~..FtETUAN TO" Space on the reverse side. Failure to do this will prevent this card from being returned to you. The return recel t fee will rovide u the name of the arson delivered to and the date of delive . For ad Itlona ees t e 0 owing services are aval a e. oosu t postmaster or eas a exes or addftkmal service(s) requested. 1. Show to whom delivered. date. and addressee's address. 2. 0 Restricted Delivery (Extra charge) (Extra charge) 3. Article Addressed to: )" 4. Article Number ~tJ{! & . ~_ S~uJAj!JV"2.., (>~~,;\:: :z. 0 - CZ a..9 - q () L!.i....€.I"l..:>T'<i''''' ~~ S .' (P.o7 tn fllLK f7 ST. J-f.,n7Q I0S, PfI J 70'/-3 '!Y.pe of Service: U Registered L)h;ertified -O"\.xpress Mail o Insured Deoo o Return Receipt for Merchandise 5. X 6. X 7. D.tf1~ Drli)"'!'1 I'S Form 3811. Apr. 19 Always obtain sign sture of addressee or agent and DATE DELIVERED. 8. Addressee's Address (ONLY if requested and fee paid) II Ii II ill i .u.S.G.P.O.1989-238-815 DOMESTIC RETURN RECEIPT 7 390 '929 909 ,_It .......... Receipt for ::; tJ \ ~ Certified Mail _ No Insurance Coverage Provided ==r~ Do not use for International Mail (See Reversel '" '" '" ~ .c e .. =- o o CD CO) ~ & en n. TOTAL Pos~ ,,_ Postmark or Dale $ ~ "l ~ ~ ;/~~tfif'.';'7----'--'-'- ." . SENDER: Complete Items 1 and 2 when additional services ere desired, arid complete Rems 3 .....c...,_. ' Put your address in the "RETURN TO" Space on the reverse side. Failure to do this will prevent this card from being returned to you. The return recei t fee will rovide u the name of the erson delivered to and the of del;ve . For ad itiona ees t e 0 oWing servtees are aval a e. ,onsu postmaster or ees aD, c x es or additional service(s) requested. 1. how to .whom delivered, date, and addrEH~..tl's address. 2. 0 Restricted Delivery (Extra charge) :i,j;.-~.'ro':, (Extra charge) 4. Article Number z.. q d.-9-Q;/J !y'pe of Service: U Registered 0 Insured ~rtified 0 COD o E ress Mail 0 Return Recei!:!t for Merchandise Always obtain signature of addressee or agent and DATE DELIVERED. 8. Addressee's Address (ONLY if requested and fee paid) -1. 3. Article Addressed to: {J;-li<JS {!.O~ OLt.I''h,)I?C.f'l"fV/ f!::>U::V .s4(!"~ {P67 t'YJ I} ~~ <ST. L.irr-oy~~ P A J 170~ 5. X 6. Siqnature X ) 7. DaT l' Drlirerll i I A' HI 11111 11111 PSF",,,,,38"'f """'11 91 . ___H~_-":~L .!.!.____i I 11_ .__ DOMESTIC RETURN RECEIPT '-"--'..~~---"~..,-.~.,......, -,~...","-.-.~4 Z 390.929 910 ~ Receipt for 0"V~ ~ Certified Mail - X-- No Insurance Coverage Provide~ - D not use for International Mall -"".\1IllJ, 0 _T_l (See Reversel I I i I ! Exhibit C . ~~ ~ ENGINE CONTROLS DISTRIBUTION January 2,2001 Mr. Chris Coller Clean Team Building Services 651 Market St. Lemoyne, PA 17043 Via Fax at (717) 975-3382 and Certified Mail Mr. Coller: After receiving the letter dated December 20 from our attorney, Steve Keller, you and I had conversations regarding cleaning services at our facility. We have requested that you provide us with a replacement person for day shift cleaning services starting Thursday, December 28th. We have also stated that we could make do without a second shift cleaning person, but that we would entertain the idea of a replacement. In response, you have stated to me that you are unwilling to provide replacement staff. We have continuing cleaning needs which must be met. We have been without cleaning services for over a week because you have not provided replacement staff. Your failure to provide replacement staff leaves us with no choice but to retain another cleaning company to provide cleaning services for our facility. Given your abandonment of our contract and our cleaning needs, and your stated unwillingness to provide further cleaning services, we ask again that you waive the thirty (30) day notice period and acknowledge that the contractual relationship between us has terminated as of December 21, 2000. We have not received any written communication from you or your attorney as of January 2,2001. If we do not receive written communication regarding this matter within three (3) business days of your receipt of this letter via fax, we will consider the 30 day notice period waived by you. Sincerely, DANA Corporation Engine Controls Distribution, Jeffrey N. Spangler, Safety & Facilities Manager Carlisle Facility IJNS cc: Bru~~~~H'"a; DANA CORPORATION - ENGINE CONTROLS DISTRIBUTION 21 ROADWAY DRIVE, CARLISLE. PENNSYLVANIA 17013 TEL (717) 240-0012 FAX: <717l 249~2334. INTERNET: WWVVDANA.COM ( . Complete items 1, 2, and 3. Also complete item 4 ff ,Restricted Delivery is desired. . Print your name and address on the reverse so that we can return the card to you. ! . Attach this card to the back of the mail piece, . or on the front if space permits. 1. Article Addressed to: C00 CtI/W cf..e."...I' f.f.o.- atJJ 5<r,,;ut' /; JI Vha.rkfs f. te t/V\/Yy .,u. II/f f? d-fJ D. Is delivery address cItfferent from item 1? If YES, enter delivery address below: o Agent o Addressee DYes ONe 3. Seryice Type g' Certified Mail 0 Express Mail o Registered 0 Return Receipt for Merchandise o Insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. ArtIcle Number (Copy ~rvice labelj , 2 /tI~4-7(J ~70 . PS Form 3811, July 1999 DI?n\OI!!i<:Jl!l!Jl'TfI!;~ r",III...III.."r..I"rm~Mlfl1.", Z lbb b70 370 POSlage $ Certified Fee Special Delivery Fee - Restrided Delivery Fee on mRetumReceiptShowingto - Whom & Date Dellvored '5. RetumReceiplShowioglDWIorn, < Date,&_ee"_ 0 $ o TOTAL Postage & Fees ... C') Postmark Of Date E I-;}--O/ 0 u.. (J) 0.. I Exhibit 0 651 Market Street . Lemoyne. Pennsylvania 17043 January 04,2001 Mr. Jeffrey N. Spangler Safety & Facilities Manager DANA Corporation 2] Roadway Drive Carlisle, P A 17013 Via Fax at (717) 960-4164 and Mailed 1/04/01 Dear Mr. Spangler: I am in receipt of you fax of January 2, 2001 asking that we waive the thirty (30) day notice period and acknowledge that the contractual relationship between us has terminated as of December 21,2000. I assume by now, you have received a copy of our December 29,2000 letter to Steve Keller, Dana's Legal Counsel. On December 20, 2000, you collected keys from Joe Pesce, told him not to return, and informed Herman Cochrane to cancel second shift services. With this action, Dana Corporation, unilaterally ended our services, without any consideration to and in violation of the conditions permitting termination of the Contract. It is absurd to ask us to either waive a notice period, that you not us violated or, to ask us to hire and train new staff so we could start back up and work thirty (30) days under a contact that has been wrongfully terminated. cc: Steven E. Keller Don Thomas Chris Coller Herman G. Cochrane George A. Vaughn ill (717) 763-7444 . Fax: (717) 975-3382 . E-mail: sixfiveonemarkel@aol.com I I I I . ExhIbIt E 651 Market Street LEMOYNE, PA 17043-1514 A Div. of Ajay Services, Inc. InVDII:E! 8886 (717) 763.7444 FAX (717) 975.3382 TO DANA ENGINE CONTROLS DISTRIBUTION 21 ROADWAy DRIVE CARLISLE PA 17013 (ke.:t -{ /3021 01-18-01 DATE_n. JOB !\D. . .JOB NAME ATTN: JEFF SPANGLER JOB LlXAllON _ TERMS NET 15 DAYS > > SERVICES: PERIOD 12/17/00 - 12/20/00 , , --........ .... ........... .............--.~._. ...............-r... 55 '78 , .............--.....................-.-.-.-..........._..---..-.............-..................................-.-........ ............. .................-.................--...................r-..... 1 1 .....-. .....- ............ . .--..........- ..m................... ...-.................. ..--.............. .. .--.-............._...~ ......T... , 1 .-.-................ --"--!""'" , , ... .......-...........[--... 1 1 ..--......... - "'T"" 1 1 - ........... "T"" 1 1 ................ ..n...'j'''' , 1 "...........[. 1 , ...........-.-...........j. 1 1 ............T-. 55 '78 1 ....................- .......r... , , ------(... 361 11 0 , "...... ............. ............. .--...."................. -... .........-.--...... .....Tn... NIGHT SHIFT CUSTODIAN (18.00 HRS X 12,56) 226 ;08 '"r''' 1 , , 1 1 ............. - - ..-.... .... .... .-......................f.... 1 1 ..-.............. ......T.... 642 '96 1 ..... ...............-. ................r.. I 1 "'T" 15 '68 1 ....................... '( CLEANING MATERIALS @ 9.5% OF CUSTODIAL LABOR PRODUCTS: ...liBft Subtotal DAY SHIFT CUSTODIAN (28.75 HRS X 12.56) Subtotal Frelsht TAXABLE AMOUNT 261.29 Tax Total 658 '64 1 f~1 To Reorder: 800~225-6380 or nebs.com Thank You ~ CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy ofthe foregoing document was served by first class mail, postage prepaid, upon the following: George A. Vaughn, III, Esquire 3904 Trindle Road Camp Hill, PA 17011 Su Counsel for Defendant, Dana Corporation Dated: October A, 2001 >- C'J ~ ~ 0 M ::::>:;:t; LU~ 8~ {.)....- :c --" \/ H~ 5:~ 0- 0::3 ~;ii! 7>- ~ <SYJ -- -<'.- i'X:Z ::::'!'U ~ UJl.U f..L. ~-, _ U ala.. f:: = ~ LL a 0 0 ., AJAY SERVICES, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2001-5473 DANA CORPORATION, Defendant CIVIL ACTION - LAW PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND CONTERCLAIM AND NOW comes the Plaintiff, AJAY Services, Inc., by its attorney, George A. Vaughn, III, and files the following Reply to Defendant's New Matter and Counterclaim: 26. No responsive pleading is required. 27. Admitted. 28. Denied. On the contrary it is averred that Plaintiff fully performed all of its obligations under the Contract. 29. Denied. On the contrary, it is averred that at all times relevant to this matter, Plaintiff fully performed its obligations under the Contract in a good and workmanlike manner. 30. Denied. On the contrary, it is averred that Defendant did not at any time prior to December 19, 2000, communicate the alleged deficiencies to Plaintiff's account representative, Chris Coller, or to Plaintiff's field supervisor, Herman Cochrane. By way of further reply, it is averred that there was a single communication from Defendant to Plaintiff in September of 2000 which resulted in (i) a reorganization and reassessment of the tasks performed by Plaintiff's employees and (ii) the removal of the collection of recyclable materials from the list of Plaintiff's duties. 31. Admitted in part and denied in part. It is admitted that F:\L WORK\MISC\DI 03101A. WPD Section II of the Contract contains the language quoted by Defendant. It is denied, however, that the quoted language has any application to the facts or issues of this case. By way of further reply, it is averred the quoted language applies instead to the notice requirement for preventing the automatic renewal of the Contract at the end of the term of the Contract. 32. Admitted in part and denied in part. It is admitted that Section II of the Contract contains the language quoted by Defendant. It is denied, however, that the quoted language sets forth the complete notice requirement for termination of the Contract. By way of further reply, it is averred that by its terms, the Contract can only be terminated after a party fails "to reasonably fulfill its obligations as agreed, only by giving thirty (30) days written notice to the other party of its intention to terminate." 33. Admitted. 34. Admitted. 35. Admitted in part and denied in part. It is admitted that Defendant, through its agent, Jeffery Spangler, instructed Joe Pesco not to return to the Defendant's facility in Carlisle. By way of further reply, it is averred that not only did Jeffery Spangler so instruct Joe Pesco, but he also stated he was not interested in the replacement of Mr. Pesco by one of Plaintiff's other employees, and he informed Plaintiff that Plaintiff's other personnel scheduled to work on the evening of December 20, 2000, at Defendant's facility should not report for work on that date or thereafter thereby reaffirming the termination which Defendant had orally communicated to Plaintiff the day before. 36. Denied. The averments of paragraph 35 of Plaintiff's Reply are incorporated herein by reference. 37. Denied. The averments of paragraph 35 of Plaintiff's Reply are incorporated herein by reference. 38. Admitted in part and denied in part. It is admitted that F:\L WORK.\MISC\DI 03101A. WPD Exhibit "A" attached to the Defendant's pleading is a true and correct copy of a letter dated December 20, 2000. It is specifically denied that this letter faxed to Plaintiff constituted termination of the Contract in accordance with its terms. By way of further reply, it is averred that the Defendant had, through its agent, Jeffery Spangler, improperly and unlawfully terminated the Contract by his conduct on December 19 and December 20, 2000. 39. Admitted. 40. Admitted. 41. Admitted. By way of further reply, it is averred that because of Defendant's conduct on December 19 and 20, 2001, unlawfully and improperly terminating the Contract, Defendant had no legal right to insist or require the Defendant (i) waive the 30-day notice period provided in Section II of the Contract or (ii) provide an alternate full time day-shift person to replace Joe Pesco. 42. Admitted. By way of further reply, the averments of paragraph 41 of Plaintiff's Reply are incorporated herein by reference. 43. Admitted. By way of further reply, the averments of paragraph 41 of Plaintiff's Reply are incorporated herein by reference. 44. Admitted. By way of further reply, it is averred that the sole reasons Plaintiff did not provide additional janitorial services to Defendant after December 20, 2000, were (i) the unlawful and improper termination of the Contract by Defendant's conduct on December 19 and December 20, 2000, and (ii) Defendant's directive to no longer send Plaintiff's employees to the Defendant's facility. 45. Admitted. 46. Admitted. 47. Denied. Defendant breached its obligations under the Contract by (i) terminating the Contract by its conduct on December 19 and 20, 2000, without complying or attempting to comply with the F:\L WORK\MISC\DI 031 OIA. WPD termination provisions of the Contract; (ii) terminating the Contract by its conduct on December 19 and 20, 2000, when it did not have the legal right to do so; (iii) by attempting to terminate the Contract after December 20, 2000, when it had already terminated the Contract; (iv) by attempting to terminate the Contract after December 20, 2000, when it did not have the legal right to do so. 48. Denied. The averments of this paragraph are legal conclusions to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, it is denied that the notice of termination of the Contract given by Dana on December 26, 2000, was effective to terminate the Contract. Because Plaintiff had not failed to reasonably fulfill its obligations under the Contract, it is further denied that Dana had the legal right to terminate the Contract. By way of further reply, it is averred that Dana had unlawfully and improperly terminated the Contract by its conduct on December 19 and December 20, 2000. 49. It is denied that Plaintiff in any way breached the Contract, and it is averred on the contrary that at all times relevant to this matter, Plaintiff was ready, willing, and able to perform all of the services required of it under the Contract. By way of further reply, it is averred the sole reasons Plaintiff did not provide additional janitorial services to Defendant after December 20, 2000, were (i) the unlawful and improper termination of the Contract by Defendant's conduct on December 19 and December 20, 2000, and (ii) the directive of the Defendant to no longer send Plaintiff's employees to the Defendant's facility. 50. The averments of this paragraph constitute a legal conclusion to which no responsive pleading is required. To the extent a responsive pleading may be deemed necessary, it is specifically denied that Plaintiff breached the Contract or that Dana was under no obligation to perform under the Contract as of December 21, 2000. 51. Denied. The averments of paragraphs 52 through 66 of F:\L WORK.\MISC\D1031O IA. WPD Plaintiff's Reply are incorporated herein by reference. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment on its Complaint in its favor and against Defendant together with the costs of this action. COUNTERCLAIM - BREACH OF CONTRACT 52. The averments of paragraphs 1 through 25 of Plaintiff's Complaint and paragraphs 26 through 51 of Plaintiff's Reply are incorporated herein by reference. 53. Denied. The averments of paragraph 47 of Plaintiff's Reply are also incorporated herein by reference. 54. Admitted in part and denied in part. It is admitted that Defendant orally terminated the Contract on December 19, 2000, and December 20, 2000. It is denied that Defendant's letter dated December 20, 2000, constituted proper notice of termination of the Contract. The averments of paragraphs 38 and 48 of Plaintiff's Reply are also incorporated herein by reference. 55. Denied as stated. The averments of paragraph 41 of Plaintiff's Reply are also incorporated herein by reference. 56. Denied as stated. The averments of paragraph 49 of Plaintiff's Reply are incorporated herein by reference. By way of further reply, Plaintiff avers that Defendant did not have the right or power to demand Plaintiff provide janitorial services after December 20, 2001, upon the unilateral conditions set forth in Defendant's letter of December 20, 2000. 57. Denied. The averments of paragraph 49 of Plaintiff's Reply are incorporated herein by reference. 58. It is specifically denied that Plaintiff breached the Contract prior to Defendant's termination of it. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained F:\L WORK\MISC\D103101A. WPD in this paragraph and they are, therefore, denied. By way of further reply, it is averred that on December 20, 2000, prior to Plaintiff's receipt of written notice by fax of termination of the Contract on December 26, 2000, and prior to the instruction to Plaintiff's employee, Joe Pesco to leave the premises, Defendant had employed at least one person who was not recognized to be a production employee of Defendant to perform janitorial services at Defendant's facility. 59. Denied. The averments of paragraph 58 of Plaintiff's Reply are incorporated herein by reference. 60. Denied. The averments of paragraph 9 of Plaintiff's Complaint and paragraphs 28, 29, 41, 44 and 49 of Plaintiff's Reply are incorporated herein by reference. 61. Denied. It is specifically denied that there was any breach by Plaintiff under the Contract. After reasonable investigation, the Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in this paragraph and they are, therefore, denied. 62. Denied. It is specifically denied that Plaintiff failed to perform in contractual obligations under the Contract in a good and workmanlike manner. After reasonable investigation, the Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in this paragraph and they are, therefore, denied. 63. Denied. At no time did any employee of Plaintiff misappropriate recycling proceeds belonging to Dana. By way of further reply, it is averred that Defendant waived any claim for such proceeds by consenting to the removal of recyclable materials by one of Plaintiff's employees. 64. Denied. The averments of paragraph 63 of Plaintiff's Reply are incorporated herein by reference. 65. Denied. The averments of paragraph 9 of Plaintiff's Complaint and paragraphs 28 and 29 of Plaintiff's Reply are F:\L WORK\MISC\D I 031 0 IA.WPD incorporated herein by reference. 66. Denied. The averments of paragraph 9 of Plaintiff's Complaint and paragraphs 28, 29, 49, 58, 61, 62 of Plaintiff's Reply are incorporated herein by reference. WHEREFORE, Plaintiff requests this Honorable Court dismiss Defendant's Counterclaim and enter jUdgment on its Complaint in its favor and against Defendant together with the costs of this action. Dated: 111:5" , 2001 Respectfully Submitted, ~~~;=- Attorney for Plaintiff Supreme Court I.D. #25650 3904 Trindle Road Camp Hill, PA 17011 (717) 975-9102 F;\L WORK\MISC\DI 03101 A. WPD VERIFICATION On behalf of AJAY Services, Inc., Plaintiff, I, BRUCE D. SCHWARTZ, President of AJAY Services, Inc., verify that the statements made in this Plaintiff's Reply to Defendant's New Matter and Counterclaim are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities. Dated: 11-.5" , 2001 F;\L WORK\MISC\DI03101A. WPD CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Plaintiff's Reply to Defendant's New Matter and Counterclaim was served by first class mail, postage prepaid, upon the following person at the following address: Susan V. Metcalfe, Esquire 100 pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 {f1C:m Attorney for Plaintiff Dated: II /~ , 2001 F:\L WORK\MISC\DI03101A. WPD o c -un" \1il: ~~? ~::.c: l-,. ,__ ..... - --7'. i ~:8 ..::., -< c> () ., :-~ "~) _.._1 , (J' ~': _i;,~ CD ,-,) :;:'""""l ~ AJA Y SERVICES, INe., Plaintiff vs. ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-5473 DANA CORPORATION, Defendant CIVIL ACT]ON - LAW PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of the Plaintiff referenced above. ~ANG: 429 South 18th Street, (717) 730-7310 Supreme Court ID #41263 17011 Please withdraw my appearance on behalf of the Plaintiff referenced above. ~ q" ~,.-~ GEO A. VAU~ , III ~ 3904 Trindle Road, Camp Hill. P A 170] 1 (717) 975-9102 Supreme Court ID #25650 (") c: :;"" .1..1i'~: ~f)iT ":,:.' - ~<, r~~ ~,~ ",..'-... ~c. "1:;'-) - c: --;'"" :'3 -- ,." = = ".- '- c; z ~ ~ rn::!J -oFn 89 _,0 ::c::!J C)-!J "/(") ;.~)l'" ~.';:! ;-n -< +' -0 ::!i; t:? <=> UI vs. ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V AN]A AlA Y SERVICES, INC., Plaintiff NO. 2001-5473 CIVIL TERM DANA CORPORATION, Defendant CIVIL ACTION - LAW RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: MICHAEL 1. BANGS, counsel for the Plaintiff in the above action, respectfully represents that: I. The above-captioned action is at issue. 2. The claim of the Plaintiff in the action is $15,007.65 increased by $194.30 for each 30-day period after 8/18/01, plus costs of suit. 3. The counterclaim of Defendant in the action is less than $25,000.00 together with costs of suit. The following attorneys are interested in the case( s) as counselor are otherwise disqualified to sit as arbitrators: Michael 1. Bangs, Esquire, and Susan V. Metcalfe, Esquire (McNees, Wallace & Nurick, 100 Pine Street, Harrisburg, Pennsylvania, 171 08-1166). WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. ~es,e, ctfully SUb, m(,' ed,-,., ~/ /~ I \/) )'1/! ,//-) /1'C/r"""l" ~." \ ~ MICHAEL 1. BANGS ~., ORDER OF COURT AND NO?eWUt. w-r IS , 2004, in consideration ofthe foregoi g petition, dL {'1J , Esquire, e.(4; 14P.M...Esquire, and ":JJa~~ {,./}IA.,.~' are appointed ar~e above-captioned action (or actions) as pray#! for. P.l. 1Jt~ " Crt & ~ ~ -l:: CI) --I 8 ~ ~ ~ 1:- j. AJA Y SERVICES, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW DANA CORORATION, Defendant NO. 2001-5473 CIVIL TERM MOTION TO VACATE APPOINTMENT OF ARBITRATORS PETITIONER, Ronald E. Johnson, Esquire, respectfully represents: I. Petitioner was appointed Chairman of a Board of Arbitration in the above- captioned matter by the Honorable George E. Hoffer on August 18, 2004. The other arbitrators were Christopher Keller, Esquire, and David Lanza, Esquire. 2. Petitioner took the time and effort to review the file and schedule the Arbitration hearing. 3. On October 8, 2004, Petitioner was informed by Plaintiffs counsel that the action was settled. Letter is attached hereto as Exhibit I. 4. Petitioner has expended approximately one hour in the review of documents, correspondence, and preparation of this Motion. 5. Petitioner asks the Court to vacate the appointment of arbitrators. WHEREFORE, Petitioner prays Your Honorable Court to vacate the order of August 18, 2004, appointing arbitrators in the above-referenc,ed case, and further requests the Court to direct payment to the Petitioner for his services as Chairman of this arbitration. Respectfully submitted, Date: l;pr;~ BANas LA~ OFFICt: +29 SOUTH 18TH STREET CAMP HILL, PA 17011 E~mail: mikebangslWverizon.net PHONE: 717-730-7310 FAX: 717-730-737+ MICHAEL L. BANGS, Attorney-at-Law WENDY S. CHESBRO, Paralegal WILLIAM E. MILLER, JR. Of Counsel October 8, 2004 Ronald E. Johnson, Esquire 78 West Pomfret Street Carlisle, PA 17013 RE: AJAY Services, Inc., vs. DANA Corporation Docket No. 2001-5473 Dear Ron: I wish to notify you that we have settled the above-captioned case in which you were appointed the Chairman of the arbitration panel. Thank you for scheduling the arbitration and I request that you return the file to court so that we may take the steps necessary to settle and discontinue the matter of record. Thank you for your assistance. I ~~ !~tmsl,' V v 0" Michael L. Bangs wsc cc: Bruce D. Schwartz, President Susan V. Metcalfe, Esquire Christopher Keller, Esquire David Lanza, Esquire :') .# . . '"'" C,:) t;:) -'-- r.~? ( .; -., () -rJ ~...l t.D ~">. OCT 2 0 2004 ~ AJA Y SERVICES, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW DANA CORORATION, Defendant NO. 2001-5473 CIVIL TERM AND NOW, this ORDER OF COURT .;z;t/YUi-day of ~~ , 2004, in consideration of the attached Motion, the Order of August 18, 2004 appointing arbitrators in the above-referenced case is hereby vacated. Ronald E. Johnson, Esquire, shall be paid $ :)0 , U i) for his services as Chairman of the Board of Arbitration. BY THE COURT: c~* A~",,\..\s\:<~t(S O{(..(~ S~' . I !}~! 'v <I 27 '-:'J h;'::77 ,IV .C.-.."- IU"'.... ::::-{i AJAY SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 2001-5473 DANA CORPORATION, Defendant CIVIL ACTION - LAW JOINT PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pursuant to Pa. R. Civ. P. 229(a), please mark this matter discontinued and ended with prejudice. BANGS LAW OFFICE By Michael L. Bangs, E J.D. No. 41263 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 McNEES WALLACE & NURICK LLC BY~ y,~ Donald B. Kaufm n, EsqUire J.D. No. 49674 Sw)an V. Metcalfe, Esquire J.D. No. 85703 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff Attorneys for Defendant Dated: Iv~#; 1btJLf ,- ..", CERTIFICATE OF SERVICE The undersigned hereby certifies that on this datE~ a true and correct copy of the foregoing document was served by United States first-class mail, postage prepaid, upon the following: Michael L. Bangs, Esquire Bangs Law Office 429 South 18th Street Camp Hill, PA 17011 McNEES WALLACE & NURICK LLC BY:~ V.~ Susan V. Metcalfe PA ID No. 85703 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 (717) 237-5300 (fax) Attorneys for Defendant Dated: November *-. 2004 (') ~:;; -:!;,(, !J I" ' ~~ PC~:.' ~ :< ~ = = ..c.- :::t: C'J "'C , c.n r' ~~ =-rJ fr'; ::r: "lJ r~; : fJ l~:J l) ;.. ;-iJ f,_) -, "', cj :'J '-~O (jm -..'" Y.'- ~J -< -0 ::: ~.) a Aiay Services, Inc. Plaintiff In The Court of Common Pleas of Cumberland County, Pennsylvania No.~- 5473 Dana Corporation Defendant Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution ofthis Commonwealth and that we will discharge the duties of our office with fidelity. Signature Signature Signature Ronald E. Johnson Name (Chairman) Name Name Andrews & Johnson Law Firm Law Finn Law Firm , . '. .7R W Pnmfrpt ~tr~et Address Address Address CArlisle. City, Pa. 17013 Zip Zip City, Zip City, I: fDIII Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: e: If damages for delay are awarded, they shall be separately stated.) Above referen d cas is here v shall be pai $50.00 for his services as Chairman of the Board of Arbitrators George E. Hoffer, P Jud e . Arbitrator, dissents. (Insert name if applicable.) Date of Hearing: ~~~1~1~f~ .~~f.1~t~~~ (Chairman) .:t;~~I:J~~F,,~\.;':"*rrl- !m"Ii/;~,.-1\\t'i1j ~m~..~4#i~~ Date of Award: ,'i!!t;;,fi'J~~~ ~"':i\:';~~I,'\llt~ ,,<~~,>;,,,~,t?,,;~-,;.;l.;.; Notice of Entry of Award Now, the day of , 20 , at , _.M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: $ ~~~_o>ry B, Deputy