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HomeMy WebLinkAbout06-6934 IN THE COURT OF COMMON PLEAS OF THE 9th JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY ADVANCED CONCRETE SYSTEMS, INC., Plaintiff NO. Ol- -Is, 9JY CL~o~L '-r'lfl-~ vs. CIVIL ACTION - LA W ST ARNET TECHNOLOGIES, INC. t/d/b/a CALEDONIA CONSTRUCTION, CONFESSION OF JUDGMENT Defendants CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the complaint filed in this action, I appear for the defendant and confess judgment in favor of the plaintiff and against defendant as follows: Principal due Other authorized items: Finance charges to 10/27/06 Attorney fees TOTAL $ 7,477.00 1,570.24 1.121.55 $10,168.79 Plus costs and interest from October 28,2006 at the rate of$3.69 per diem. Y: MARVIN J. R ITSKY ATTORNEY NO. 05158 ATTORNEY FOR PL 9 Courtyard Offices Selinsgrove, P A 17870 (570) 743-2333 u:\advconcr\stamet tech\complaint.jdg Plaintiff NO. CL. -1.9.3~ CIVIL ACTION - LAW CoL~~ IN THE COURT OF COMMON PLEAS OF THE 9th JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY ADV ANCED CONCRETE SYSTEMS, INC., vs. STARNET TECHNOLOGIES, INC. t/d/b/a CALEDONIA CONSTRUCTION, CONFESSION OF JUDGMENT Defendant COMPLAINT 1. Plaintiff is Advanced Concrete Systems, Inc., a Pennsylvania corporation, having an address ofR. R. 2, Box 147-A, Middleburg, Snyder County, Pennsylvania 17842. 2. Defendant, Starnet Technologies, Inc., is a Pennsylvania corporation, which trades and does business as Caledonia Construction, a registered fictitious name, having a registered address of 1845 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011. 3. On June 29, 2005 Defendant entered into and executed a Sales Contract containing a Confession of Jildgment provision. A true and correct reproduction of the original Sales Contract in the total amount of $7,477 on which this confession of judgment is based is attached hereto and incorporated by reference herein as Exhibit "A". 4. Although the executed Sales Contract indicates that a deposit in the amount of $1,850.00 was due upon signing, the deposit was never received by Plaintiff. 5. It is hereby averred that the judgment of confession against the defendant is not against a natural person in connection with a consumer credit transaction. Date: November -13-, 2006 P. 6. The Sales Contract has not been assigned. 7. Judgment has not been entered in any jurisdiction. 8. The amount due and owing is Ten Thousand One Hundred Sixty-Eight Dollars and Seventy-Nine Cents ($10,168.79) which amount includes unpaid principal in the amount of Seven Thousand Four Hundred Seventy-Seven Dollars ($7,477.00), finance charges as of October 27,2006 in the amount of One Thousand Five Hundred Seventy Dollars and Twenty-Four Cents ($1,570.24), plus interest thereafter at the rate of$3.69 per diem, attorneys' fees in the amount of One Thousand One Hundred Twenty-One Dollars and Fifty-Five Cents ($1,121.55), along with filing costs. WHEREFORE, Plaintiff demands Judgment in its favor and against the Defendants in the amount of Ten Thousand One Hundred Sixty-Eight Dollars and Seventy-Nine l Cents ($10,168.79), as authorized by the Warrant appearing in the attached Sales Contract, together with interest from October 28,2006 at the rate of$3.69 per diem, and costs. U?~t&AA1d- Angel arrett, Vice President VERIFICATION Angela Barrett, Vice President of Advanced Concrete Systems, Inc., Plaintiff in the above-referenced action, verifies that the facts set forth in the foregoing pleadings are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. ALE.S CONTRACT , with lal No. .tO~< - /c "o1c 5 9 Ider C~\edolU 10. CotJ"Si-rUc.;\.\OL...l kess '845 Mcu"kP~ S\-~~ 'f C .f~Vl-\p U \ \ , State ~ Zip I '70' I :me "'4.,:=t140"~/ "'1"'."'~I-0'7qO ~ unty C.uW\be.r\o.v\(:~ fI Advanced Concrete Systems, Inc. A.D. 2, Box 147-A, Middleburg, PA17842 E-Mail: acswalls@ptd.net . Web Site - http://www.yourbasement.com 1-800-521-3788 . 570-837-1182 (FAX) 570-837-3955 herein known as Seller and Date ~u~e. 22. ~f\C>5 , Ordered by .:...\. n. Suvu..-.I ~ c...hr\A. Retail Customer Name ..J~b l:I- 05- tl"\S~ Site Address 34 34 ("~~Ioo.)u\- sh City ~W\p U \ \\ State ~ Zip I ,,all County c.u1N\hPr-\G.V\d Miles 31-~O Salesman ..J, VV'fl1 ~'C k. ~\ Qo S - " 3 . Hereinafter known as buyer(s). WITNESSETH. that the SELLER and Buyer(s) intending to be iegally bound mutually agree to the hereinafter set forth product(s). for the consideration and upon the terms hereinafter setforth. escript:ion of Product:s: _ L.F. of S'2" Panel @ $ - $ ~ L.F. of 9'0" Panel @ $ 12-5 4q CO = $ (O}2.' 2. CO _ L.F. of 10'0" Panel @ $ - $ _ L.F. of 4'0" Panel @ $ = $ _ L.F. of 4' Wall w/S" Top Panel@$_ - $ ~ Corners @ $ ~CIO = $ ~ Window Openlng@ $. 4000 = $ _ Spec. Window Openings @ $ = $ _ Door Opening @ $ = $ _ Spec. Door Opening @ $ = $ ~ Beam Pockets @ $ 4000 = $ _ L.F. of Brlckledge @ $ = $ .5.....- Footer Pads @ $ 2000 = $ _ Garage Door Opening @ $ - $ _ Vents@$ =$ _ DoorDrop@$ -$ _ Quick Set Steps @ $ = $ L.3- Support Ledge @ $ I 500 = $ _ Modular Straps @ $ = $ _ Setting Beams @ $ = $ _ FloorTles@$ =$ _ BrlckTles@$ =$ _ Extra Studs @ $ - $ !(. ,Ii-... Qnc !L~S @ $ 5"00 = $ @$ =$ @$ =$ J 2f') CO Rl) CD ~co I CO CO I Q5ClO ZDOO NOTICE . Please read the back of this contract for BUYER/BUILDER responsibilities, especially items 21 .. 31. . DELAYS caused by improper site preparation will be charged to BUYER/ BUILDER at $100 per hour. . BUYER/BUILDER is responsible for checking wall system for square and plumb and must notify ACS of any problems with same prior to beginning construction. SUB-TOTAL $ In,Rloi.CO $ ( ) SET-UP $ 120.~ ( ) CRANE $ 2 ,~. t:)O ( ) FREIGHT $ ZeD.co ( ) TOTAL $ 7,4-" .00 LESS DEPOSIT $( I" 850.t')r)) 2 5 0/" $ $ *BALANCE DUE $ 5,lo2.I.~ C.D. D *Changes to the contract, shop drawings. and other specifications will be In writing, signed by the BUYER/ BUILDER. and reflecting the revised Balance DUe. ~y +0 -Se.~ Cre.l.u C20n~l'Y\aV\ Da.'1' Or- Sa"=-- ERMS OF SALE: 1. 2~ % deposit required with order. 2. Balance due prior to unloading. ~uyer(s) Agrees: to provide clean level site. excavation and backfilling. to provide mlnhnum of 6" of 112" clean. CMlshed stone for footers. Base of footer to be at/or below local trost line. to take steps to Insure that all persons and animals remain at least SO ft. from construction site. to provide adequate access to site for Sellers vehicles and equipment; drive to be stone base or equal. to make settlement with a crew foreman or company representative according to terms of sale. to provide bracing as required in S. W.A.'s Procedure Booklet. .ervlce Charges: all payments that have not been paid according to the terms set forth in this agreement will be subject to collection costs and finance charges of 1 1/2% per month (18% per year) on the unpaid balance until paid in full. IIOTICE: Buyer further agrees that the following Judgement Note is recordable and further the provisions on the reverse side of this agreement are incorporated herein by reference and are made a part hereof: Jpon completion of this agreement as set forth above. the principle sum of above balance, less sums credited theragalnst. as paid during construction and .ecorded hereunder, shall be due and payable to the order of Seller, without offset for value received with Interest. Further, I/we hereby authorize and 'mpower any attorney of any court or record of Pennsylvania, or elsewhere to appear for and to enter judgement against me/us In favor of any holder of this lote for the above sum, cost of suit. release of errors, without stay of execution. and with fifteen percent (15%) added as a reasonable attorney's fee. I/we lereby waive and release all benefit and relief from any and all appraisement. stay or exemption. laws of any state now In force or hereafter to be passed. IN NITNESS WHEREOF. the Buyer(s). Lessee or Lessor has/have hereunto set his/their hand(s) and seal(s) on the date first above written. and the Seller has :aused this Instrument to be executed by Its duly authorized officer. Buyer Signature ~' - .,,~____ Title r Date Buyer Slgnat:ure Approved and Accepted Advanced Concrete Systems. Inc", TERMS AND CdNDITIONS 4. 'This Order Is not binding upon Advanced Concrete Systems, Inc. (Hereinafter called 'ACS') until It has been received and accepted by ACS In writing and signed by the President or Vice President. ' . Subject to all the terms and conditions of this Ordsr, the Builder agrees to buy and ACS agrees to sell a Basement System as described on the reverse side hereof, the plan attached hereto, AND THE SPECIFICATIONS REFERRED TO HEREINAFTER WHICH ARE INCORPORATED HEREIN BY REFERENCE. The Builder agrees that the purchase price to be paid for the Order Is listed on the Order Form. If any, plus any charge for additional material ordered. Payment of the purchase pries shall be bank treasurer's check or bank certified check made payable to Advanced Concrete Systems. Inc. and delivered to ACS. or Its authorized agent or employee. prior to delivery of the Superior Wall System or upon delivery but PRIOR to erection of the wall system. Title to the Superior Wall System and loose material shall remain with ACS until the Superior Wall System Is delivered to the location designed on the reverse side of this Order Form, and Builder hereby grants to ACS a security Interest in the product sold and delivered under the Uniform Commercial Code, until full payment of all monies due have been made. Builder shall carry such Fire and other Casualty insurance on the Superior Wall System in an amount equal to the unpaid balance due hereto, with loss payable clause to ACS as its interest may appear and Builder agrees to furnish a certificate of such Insurance upon request. Until the Superior Wall System has been fully paid for, Ills agreed that the Superior Wall System ~hall at all times remain a fixture and not become real estate. To secure payment of all monies due to ACS, Builder agrees that upon the request of ACS It will execute and deliver a Judgment Note, or notes, financing statements and security agreements, including Confession of Judgment clause and Warrant of Attorney to confess judgment, in case of a default by Builder, ACS shall have no obligation to deliver any Superior Wall system materials or parts to a Builder which is in default on any obligation. For the purposes of this patagr~ph, the word "default" shall Include defaull wllh any corporation or entity in which the Builder Is an officer, owner, stockholder, or member of the Board of Directors. Builder agrees that the'Su~riorWall System shall not be occupied as part of a structure or for any other purpose unless and until ACS has been paid all monies due to it. LIMITED WARRANTY. ACS warrants that the Superior Wall System and,loose m~terials being sold shall be free from defects In materials and workmanship for a period of (15) years from the date of delivery. It is aQreed by Builder that ACS's sole responsibility herein" is to repair or replace defects and It shall not be liable for any compensatory, consequenti~I, incidental or other damages of any kind whatsoever. ACS makes no warranty with regard to any component product which is included in the sale of which carries its own manufacturer's written warranty. THIS WARRANTY IS IN LIEU OF ANY OTHER WARRANTY EITHER EXPRESSED OR IMPLIED INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF USE FOR A PARTICULAR PURPOSE. For any attachment or product which is to be completed or installed by the Builder, whether supplied by ACS or another. Builder agrees to install the same In a safe and workmanlike manner. Builder agrees to defend and hold harmless ACS from any claim, loss or suit on account of Builder's failure to comply with the promises contained in this paragraph. \. 2. 3. 5. Absolutely no charges, costs or invoices of any kind or any purpose will be paid by ACS unless authorized In writing In advance of the expenditure. Incorporated herein by reference are the specifications for a Superior Wall System manufactured by ACS which are in effect on the date of this quote. ACS has a policy of continuous Improvement to its product end reserves the right to change materials and specifications without notice, Due to occasional shortages of certain building materials. ACS reserves the right to substitute materials of an equal or superior quality or value. when necessary wllhout notice. It Is recommended that the Builder so advise his retail customers at the time of Its sale In writing of this fact. All materials shipped by mistake or in excess of quelltles needed to complete the Superior Wall System In accordance with the plans and spec~lcations remain the property of ACS and are to be made avaitable for return to ACS, 6. Builder acknowledges and agrees that the plans and specifications for the Superior Wall System are the sole property of ACS and that they may not be used for the construcllon of any wall system other than a Superior Wall System, All such plans and specifications are property to and copyright of ACS. Builder agrees to sign delivery receipts at the time of delivery. Such delivery receipts signed by Builder, or his agent or employee, shall constitute proof of delivery or notice In writing that delivery was made on the specific date, that the Builder has inspected the product and accepted it, and that all the terms and conditions of this Agreement prevail. Deletions, additions, or revisions to an Order must be in writing and signed by both parties. Requests to extend the agreed delivery date are included In this requirement. The Superior Wall System will be produced in accordance with original delivery date and It wili be loaded and held on a carrier at the factory. When a Superior Wall System has been loaded and held ready for delivery at the factory, there will be a five (5) day grace period followed by a $20 per d~y demurrage for each Superior Wall System held in our yard beyond the grace period. ACS wili hold the Superior Wall System on a carrier at its factory for up to a maximum of ten (10) additional days after which It may. at Its discretion, cancel this agreement. retein the down payment on account of damages. notify the Builder of the breach of contract and the amount of which losses shall Include the demurrage charge from the end of the grace period until the Superior Wall System Is resold. the difference In the resale price received and the original price, the cost of s~1e Including commissions and other costs and expenses Incurred in the resale, all of which Builder agrees to pay to ACS as damages. AIi risk of loss to the Superior Wall System shall shift from ACS to the Buyer at the end of the said ten (10) day period ACS assumes the responsibility for other damages to loads while they remain in our yard for a period of up to fifteen (15) days from the date of the completion and loading of the Superior Wall System. The obligation for the protection of the Superior Wall System from Inclement weather shifts form ACS to the Buyer when the unit Is delivered, except as stated previously. Any demurrage charge outstanding must be paid by the Builder before any product will be shipped to'the Builder or to any other entity or corporation In which the Bulider Is an owner. officer, director or shareholder. 7. 8. 9. 10. The price quoted herein Is guaranteed not to Increase for a period of thirty (30) days from the date of this quote. 11. No conditions will be honored unless herein stated or herein referred to and acknowledged by ACS, ACS shall not be liable for delays in filling this order caused by interruption of trensportation facilities, fire, floods, explosions, riots. material shortage, strikes or any other delays beyond its control. 12. ACS makes no representations. egreements or warranties other than those contained herein. This contract Is composed only of this document, the plans attached hereto. and the specifications. incorporated herein by reference. No verbal representation, advertisement, letter, brochure, manual or other document Is a part hereof and any of such are superseded hereby. 13. The only parties to this contract Intended to be benefited hereby are ACS and the Builder whose signature appears on the reverse side hereof, and the covenants, agreements. representetions of ACS made herein shall extend solely to said Builder and to no other person or entity. known or unknown. who may be affected thereby, 14. This Agreement may not be assigned by the Builder wlthQut the express written consent of ACS. 15, Any sums due from Builder on the agreed delivery date will Incur charges thereafter at the rate of one and one-half (1 1/2) percent per month, and ACS shall be entitled to collect said service charges as well as all of Its reasonable attorney's fees from the Builder occasioned by the default of the Builder under this or ~ny other contract. 16, ARBITRATION. All claims and disputes related to this contract whether by ACS Builder. or third party. shall be subject to arbitration In accordance with the rules then obtaining of the American Arbitration Association and with the erbitrator to be selected by the American Arbitration Association, Written notice of demand for arbitration shall be filed with tha other party to the contract and with the American Arbitration Association within a reesonable time after the dispute shall have arisen. with the hearing to be held in Mlddleburg, Pennsylvania. The determination of the Arbitrator shall be final and binding upon all parties Involved. 17. The waiver of any right or defaullln anyone instance shall not be deemed to be a waiver of any future right or breach of this contract, 18. Time is of the essence of this agreement. 19. ACS's sole responsibility to the Builder Is to construct and deliver the Superior Wall System and described on the Order to the Builder's site, to lift the Superior Wall System from the road carrier to set up. assemble or complete the construction of the Superior Wall System at Builder's site, but has no responsibility to excavate, Install footers, support materials. drainage or utilities of any kind, 20. Builder recognizes and agrees that delivery carriers are the sole property of ACS. and Builder agrees, thetlt has the responsibilities of a bailor while the road carriers are In his possession or cOntrol. Builder agrees that ACS has the right at all times to go upon Builder's land or building site for the purpose of the removal of Its roed carriers or the removal of the Superior Wall System If it has not been paid In accordance with this agreement. 21. Builder agrees to follow Builders procedure Packet in the erection and completion of the wall system. and to assume full responsibility for soli condllion&. excevation and material placement end site preperation as more particularly described in the Disclosure of Soil Conditions signed concurrently herewith. Buyer shall hold ACS harmless form ~ny costs. demages. awards or attorneys fees should Builder fail to comply with these promises. 22. During erection of the well system, Builder shall clear the aree of persons and property so that no one is under a wall held by a crane. no one Is in the danger area In the event thet a crene or wall tips over, and II shall take such other precautions to prepare the site for safe delivery of the product. 23. For weight bearing purposes. Builder agrees thet a 10" plate shall be on top of the wall system, 24. Superior Walls Installers and/or Licensees cannot be responsible for disturbed soli beneath the stone foundation. Any excessive depth of excavation. removal of rocks. stumps. or simply an error on the part of the excavator must be replaced with stone, NEVER backfill with soil. 25. In the event that the Builder and/or customer cancela delivery of a Superior Wall System that has already been scheduled for erection, the Builder and/or customer shall be responsible for any and all charges Incurred by ACS from the haulers, erecllon crew. and/or crane company. These charges must be paid by the Builder before any product will be shipped to the Builder or to any other entity or corporation In whlch the Builder Is an owner, officer. director or shareholder, 26. Builder represents that the soil oondillons at the site described on the Order Form attached hereto meet or exceed the requirements stated in the Builders Procedure Packet. The Builder understands that he must maintain the site prior to construction of the Superior Walls in B condition that meets or exceeds the soil condition requirements stated above. All comer pins must be in place before ACS crew arrives to eliminate downtime charges. 27. Builder also agrees to prepare the site In accordance with the Builders Procedure Packet provided to the Builder by Advanced Concrete Systems. Inc. and that he will make such a preparation and precaution as Is necessary to prepare the site for the safe delivery of the product. 28. Builder understands that if the soli conditions do not meet the minimum oondllions described above, the Installation may fall causing demage to persons property. In that event, the Builder agrees to hold Advanced Concrete Systems. Inc. harmless for eny and all damage. losses, lawsuits. Including attorneys fees. caused by substendard soil oondltions. 29. Builder acknowledges thet Is has the responsibility for any and all excevation and matertal placement necessary to allow for the erection of the Superior Wall System. In the event that Advanced Concrete Systems, Inc., is required to expend any sums for labor or materials to correct sub standard soil condition. Builder shall reimburse all of such sums of money promptly as a part of the purchase price and in accordance with the payment terms stated In the Terms and Conditions of Order, 30. Builder further agrees that ~ the site is not prepared as specified when the ACS crew arrives, he will be responsible for any and all expenses Incurred for erecllon crew. delivery trucks endlor crane. 31. Builder acknowledges that he has the responsibility for instelling the stone footer at, or below local frost line and that he has the responsibility for keeping the footer system from freezing. C?;J (J [. #- ~ ~ " i ~ ~ t~ r ~ ~ ""'- :-0 ~ (} -u F ~ ~ ~ = c::::> 0-. o rrJ n I o " :r! n,:n r- -om ::OC-J '.:J T ~;j~: ."t_ '1 "2 c'5 om ~ -< -u ::li:: ~ N co Plaintiff NO. Ot.. - ClocL~~ IN THE COURT OF COMMON PLEAS OF THE 9th JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY ADVANCED CONCRETE SYSTEMS, INC., vs. CIVIL ACTION - LA W ST ARNET TECHNOLOGIES, INC., CALEDONIA CONSTRUCTION and CONFESSION OF JUDGMENT Defendants NOTICE Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a Judgment has been entered against you in the above proceeding as indicated below. Money Judgment in the amount of $10,168.79 plus interest from October 28, 2006 at the rate of $3.69 per diem, and costs of suit. rothonotary If you have any questions concerning this notice, please call: Marvin J. Rudnitsky, Esquire Rudnitsky & Hackman, L.L.P. 9 Courtyard Offices Selinsgrove, P A 17870 570-743-2333 - Plaintiff NO. ex.. -{"73~ Ct"u:L'7-~l CIVIL ACTION - LA W ./- \. Rudnitsky & Hackman, LLP By: Marvin J. Rudnitsky, J.D. Attorney Id. No. 05158 9 Courtyard Offices Selinsgrove, P A 17870 (570) 743-2333 Attorney For: Advanced Concrete Systems, Inc. IN THE COURT OF COMMON PLEAS OF THE 9th JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY ADVANCED CONCRETE SYSTEMS, INC., vs. ST ARNET TECHNOLOGIES, INC. t/d/b/a CALEDONIA CONSTRUCTION, CONFESSION OF JUDGMENT Defendants PRAECIPE FOR ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Please assess damages now due on the judgment in this action against Defendant, Starnet Technologies, Inc., as follows: Principal due $ 7,477.00 Other authorized items: Finance charges through 10/27/06 Attorney fees TOTAL - CUMBERLAND COUNTY PROTHONOTARY ~/..... - .. JUDGMENT AND ASSESSMENT OF DAMAGES I assess damages as above and judgment is entered for Plaintiff, Advanced Concrete Systems, Inc., and against Defendant, Starnel Technologies, Inc., in the amount of $ I 0, 168.79, plus costs and interest from October 28, 2006 at the rate of $3 .69 per diem. Dated: () c s::- "TJcn Q)r,; ""-::: ,..-'.' ...<. I.. (/'j +:. ,::~ ( . f~ =:! -0 ~ ~ N ex> I",,) = = <:r'> I:::) r-:, c-, I o ,., ~~ ::t)9 ~6 -~T- -r, ---:n ~;to om ~ ::0 -< - Rudnitsky & Hackman, LLP By: Marvin J. Rudnitsky, J.D. Attorney Id. No. 05158 9 Courtyard Offices Selinsgrove, P A 17870 (570) 743-2333 Attorney For: Advanced Concrete Systems, Inc. IN THE COURT OF COMMON PLEAS OF THE 9th JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY ADV ANCED CONCRETE SYSTEMS, INC., Plaintiff NO. C>~ - e;u.:LI~ CIVIL ACTION - LA W vs. ST ARNET TECHNOLOGIES, INC. tJdIb/a CALEDONIA CONSTRUCTION, CONFESSION OF JUDGMENT Defendants AFFIDAVIT PURSUANT TO P A. R.C.P. 2951(a)(2)(ii) COMMONWEALTH OF PENNSYLVANIA : ss. COUNTY OF SNYDER Angela Barrett, Vice President of Advanced Concrete Systems, Inc., being duly sworn according to law, deposes and says tha1 she is authorized to make this Affidavit on behalf of Plaintiff; and that judgment is not being entered by confession against a natural person in connection with a consumer credit transaCtion. a 0- Angela ~~ ~: ;re~f!t Sworn to and su!,~~ribed before me this E- day of November, 2006 ~~U0(r '-~~ Notary Public } COMM~TH OF PENNSYLVANIA NOTARIAL SEAL PATRICIA E. BENFER, NotarY Publtc Selinsgrove, Snyder County My Commission Ex~ November 11 , '1J.'J)7 o c s: J!g; (~5 ,:$;,' ~l.". >,-, 1E i:~' 2: ~ -0 :x ~ I'\,) CO "" gg Q"\ I:::) ,.." C"") , ~ ~:n :Rfii 86 ,-I" .,-1: -rI r.:> -<.J .20 0"" ~ ""<: - Rudnitsky & Hackman, LLP By: Marvin J. Rudnitsky, J.D. Attorney Id. No. 05158 9 Courtyard Offices Selinsgrove, P A 17870 (570) 743-2333 Attorney For: Advanced Concrete Systems, Inc. IN THE COURT OF COMMON PLEAS OF THE 9th JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY ADV ANCED CONCRETE SYSTEMS, INC., Plaintiff NO. Dl- - /, '1~L( CO~L~l CIVIL ACTION - LAW vs. ST ARNET TECHNOLOGIES, INC. t/dIb/a CALEDONIA CONSTRUCTION, CONFESSION OF JUDGMENT Defendants AFFIDAVIT THAT ACTION DOES NOT ARISE OUT OF RETAIL INSTALLMENT CONTRACT COMMONWEALTH OF PENNSYLVANIA : ss. COUNTY OF SNYDER Angela Barrett, Vice President of Advanced Concrete Systems, Inc., being duly sworn according to law, deposes and says that she is authorized to make this Affidavit on behalf of Plaintiff; and that this is not an action by a seller, holder or assignee arising out of a retail installment sale, contract or account. Sworn to and subfRibed before me this ~ - day - . of November, 2006 COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL PATRICIA E, BENFER, Notary Public Selinsgrove, Snyder County My Commission Expires November 11, 2007 ~~J(U ft.~ Notary Public o c s:: \:)0:' GJrT ~"""'.' 2~1. (j) , =<., <-", <:-....... ~( .1;~. "'? ~ -0 ::it: ~ N CX> "-3 = = 0"> o ,.." C"") I ~ :;! m~ ~? (:"10 ::I::B 00 2m o ~ -< - Plaintiff NO. Dl- - l.q~~ C.iu~L~~ Rudnitsky & Hackman, LLP By: Marvin J. Rudnitsky, J.D. Attorney Id. No. 05158 9 Courtyard Offices Selinsgrove, P A 17870 (570) 743-2333 Attorney For: Advanced Concrete Systems, Inc. IN THE COURT OF COMMON PLEAS OF THE 9th JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY ADV ANCED CONCRETE SYSTEMS, INC., CIVIL ACTION - LAW vs. STARNET TECHNOLOGIES, INC. t/d/b/a CALEDONIA CONSTRUCTION, CONFESSION OF JUDGMENT Defendants AFFIDAVIT OF BUSINESS TRANSACTION COMMONWEALTH OF PENNSYLVANIA : ss. COUNTY OF sNYDER Angela Barrett, Vice President of Advanced Concrete Systems, Inc., being duly sworn according to law, deposes and says that she is authorized to make this Affidavit on behalf of Plaintiff; and that the transaction upon which Judgment is being entered by Confession was a business and commercial transaction. '-- - ett, Vice President Sworn to and subscribed before me this %~ day of November, 2006 '-P1 t111~J,{u ~ L& Notary Public (lfN COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL PATRICIA E. BENFER, Notary Public Selinsgrove, Snyder County My Commission Expires November 11, 2007 (') ~ if] Fe; l5t: ~f( >~~ <. ' ~-o , z ::.< :2 ~ N Q:) ~ <:':) c:;::, c:r. !YJ , ~ ~:n r- ;gm ~~)6 _.r.! -r-:,- c5:rJ €5@ :::-i ~ -< - -- Rudnitsky & Hackman, LLP By: Marvin J. Rudnitsky, J.D. Attorney Id. No. 05158 9 Courtyard Offices Selinsgrove, P A 17870 (570) 743-2333 Attorney For: Advanced Concrete Systems, Inc. IN THE COURT OF COMMON PLEAS OF THE 9th JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY ADV ANCED CONCRETE SYSTEMS, INC., Plaintiff NO. ex.. -L'l3~ (!10~tT~J CIVIL ACTION - LAW vs. ST ARNET TECHNOLOGIES, INC. tJdIb/a CALEDONIA CONSTRUCTION, CONFESSION OF JUDGMENT Defendants AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA : ss. COUNTY OF SNYDER Angela Barrett, Vice President of Advanced Concrete Systems, Inc., being duly sworn according to law, deposes and says that she is authorized to make this Affidavit on behalf of Plaintiff; and that Defendant is not in the Military Service of the United States, nor any State or Territory thereof or its allies, as defined in the Soldiers' and Sailors' Civil Relief Act of 1940 and the amendments thereto. 11 (yje-;&~ h A ,-U-- Angela ett, Vice President Sworn to and subscribed before me this L day of November, 2006 ~litloJ fJ.~~1\) Notary Public _ J COMMONWEALTHOFPENNSYLV~A NOTARIAL SEAL PATRIC.IA E. BENFER, Notary Public SellOsgrove, Snyder County My Commission Expires November 11, 2007 (') 1"00.) ~ = c = $." Q"'\ -Oil:; 0 ~:n r1lu; ,." 2::e, ('"') .".hi &i.e," I ~6 -< r: ~ -0 :c:p }~ &:: ::it' 0(-) W am -. ~ L.. ::< N \0 -< ST ARNET TECHNOLOGIES, INC. tJdIb/a CALEDONIA CONSTRUCTION, CONFESSION OF JUDGMENT ... Rudnitsky & Hackman, LLP By: Marvin J. Rudnitsky, J.D. Attorney Id. No. 05158 9 Courtyard Offices Selinsgrove, P A 17870 (570) 743-2333 Attorney For: Advanced Concrete Systems, Inc. IN THE COURT OF COMMON PLEAS OF THE 9th JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY ADV ANCED CQNCRETE SYSTEMS, INC., Plaintiff NO. at.. -1.,oIf>Y (!/(J,L'-r~ CIVIL ACTION - LA W vs. Defendants AVERMENT OF DEFAULT COMMONWEALTH OF PENNSYLVANIA : ss. COUNTY OF SNYDER Angela Barrett, Vice President of Advanced Concrete Systems, Inc., being duly sworn according to law, deposes and says that she is authorized to make this Affidavit on behalf of Plaintiff; and that Defendant entered into the Sales Contract, a true and correct copy of which is attached hereto and marked as Exhibit "A". . Deponent also avers that there is $10,168.79 due and owing under the Sales Contract. Sworn to and su~_ ribed before me this - day of November, 2006 ~8.~1- Notary Public COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL PATRICIA E. BENFER. Notary Public Selinsgrove, Snyder County My Commission Expires November 11, 2007 ;AL1:S CONTRACT f'! Advanced Concrete Systems, Inc. RD. 2, Box 147-A, Middleburg, PA 17842 E-Mail: acswalls@ptd.net Web Site - http://www.yourbasement.com 1-800-521-3788 . 570-837-1182 (FAX) 570-837-3955 wi~h 'Ial No. ....05 - /. ~d?c. 59 rider CQ,\edou I 0.. COt.J"S\-ru~\-\o'-l dress '845 Mo..c-kP\- S\-~t- y C1\..V\'\p U \ \ \ State ~ Zip '-1(:) II Dne 11'.,~I-CnA(") /"'71"') -"'7 ~1-C>7qO t:hx unty Co, uMbe.r\ Q.~d herein known as Seller and Date ...J Ut.,) e 2 z. ~C> 5' Ordered by -_\. wn Sa ;VK..n..J ' c...~ r~t-. Retail Customer Name .J~ *l- 05- J('}S~ Site Address 3434 c.~-l-~u\- sh City c....Y\o'\p U," State ~ Zip , '7~11 County CUWlhPr-\QV\d Miles:5' -loO Salesman -.J1VV'lIRIc..K _\QC\S-I/3 . Hereinafter known as buyer(s). WITNESSETH, that the SELLER and Buyer(s) Intending to be legally bound mutually agree to the hereinafter set forth product(s). for the consideration and upon the terms hereinafter setforth. escript:ion of Product:s: _ L.F. of 8'2" Panel @$ = $ ~ L.F. of 9'0" Panel @ $ Q-S 4q oc> = $ lolL' 2. CO _ L.F. of 10'0" Panel @ $ = $ _ L.F. of 4'0. Panel@$ = $ _ L.F. of 4' Wall w/8" Top Panel@$_ = $ ~ Corners@$ ~CIO =$ ~ Window Opening @ $ 4<::)00 = $ _ Spec. Window Openings @ $ = $ _ Door Opening @ $ = $ _ Spec. Door Opening @ $ = $ ~ Beam Pockets @ $ 4000 - $ _ L.F. of Brlckledge @ $ = $ ~ Footer Pads @ $ 2000 = $ _ Garage Door Opening @ $ = $ _Vents@$ =$ _ Door Drop @ $ = $ _ Quick Set Steps @ $ = $ 3- Support Ledge @ $ I 5 CO - $ _ Modular Straps @ $ = $ _ Setting Beams @ $ = $ _ FloorTles@$ =$ _ Brick Ties @ $ = $ _ Extra Studs @ $ = $ ~ T'~ QnLUS" @ $ 500 = $ @$ =$ @$ -$ '2000 Rl}CO ~oo lco CO , Q5;QC:) ZOOO RMS OF SALE: 1. 25 % deposit required with order. 2. Balance due prior to unloading. NOTICE . Please read the back of this contract for BUYER/BUILDER responsibilities, especially items 21 - 31. . DELAYS caused by improper site preparation will be charged to BUYER/ BUILDER at $100 per hour. . BUYER/BUILDER is responsible for checking wall system for square and plumb and must notify ACS of any problems with same prior to beginning construction. SUB-TOTAL $ In., 8(0,.00 $ ( ) SET-UP $ '20.00 ( ) CRANE $ 2'C}. DC> ( ) FREIGHT $ 28D.00 ( ) TOTAL $ 7/4-" .00 LESS DEPOSIT $( '/SSO.C)r)) 2 5 0/" $ $ *BALANCE DUE $ 51[02."'7.00 C.D. D *Changes to the contract, shop drawings, and other .speciflcations will be in writing, signed by the BUYER/ BUILDER, and reflecting the revised Balance Due. I=b..Y +0 'Se.\;- c.re.w PonevvaoV\ Da.v Or- Se~ 'yer(s) Agrees: t:o provide clean level slt:e, excavat:lon and backfilling. t:o provide minimum of 6" of 112" clean, crushed st:one for foot:ers. Base of foot:er t:o be at:lor below local frost: line. t:o t:ake st:eps t:o Insure t:hat: all persons and animals remain at: least: 50 ft:. from const:ruct:lon slt:e. t:o provide adequat:e access t:o slt:e for Sellers vehicles and equipment:; drive t:o be st:one base or equal. t:o make set:t:lement: wlt:h a crew foreman or company represent:at:lve according t:o t:errns of sale. t:o provide bracing as required In S. W.A:s Procedure Booklet:. lrvlce Charges: all payments that have not been paid according to the terms set forth in this agreement will be subject to collection costs and finance charges of 1 1/2% per month (18% per year) on the unpaid balance until paid In full. OTICE: Buyer furt:her agrees t:hat: t:he following Judgement: Not:e is recordable and furt:her t:he provisions on t:he reverse side of t:hls agreement: are Incorporat:ed herein by reference and are made a part: hereof: 'on completion of this agreement as set forth above, the principle sum of above balance, less sums credited theragalnst. as paid during construction and :orded hereunder. shall be due and payable to the order of Seller. without offset for value received with Interest. Further, I/we hereby authorize and 'power any attorney of any court or record of Pennsylvania. or elsewhere to appear for and to enter judgement against me/us In favor of any holder of this te for the above sum, cost of suit, release of errors. without stay of execution. and with fifteen percent (15%) added as a reasonable attorney's fee. I/we reby waive and release all benefit and relief from any and all appraisement, stay or exemption. laws of any state now In force or hereafter to be passed. IN ITNESS WHEREOF, the Buyer(s). Lessee or Lessor has/have hereunto set his/their hand(s) and seal(s) on the date first above written, and the Seller has Jsed this Instrument to be executed by Its duly authorized officer. .-:::--' ?/- Tlt:le r Dat:e 'yer Slpat:ure 'yer Slgnat:ure oyer Slgnat:ure For Receiving Builder Procedure Packe .proved and Accept:ed Advanced Concrete Systen1s, Inc;Jli Dat:e -c~ Date - .. TERMS AND CaNDITIONS This Order Is not binding upon Advanced Concrete Systems, Inc. (Hereinafter called 'ACS') until It has been received and accepted by ACS In writing end signed by the President or Vice President subject to all the terms and conditions of this Order, the Builder sgrees to buy and ACS agrees to sell s Basement System as described on the reverse side hereof, the plan attached hereto, AND THE SPECIFICATIONS REFERRED TO HEREINAFTER WHICH ARE INCORPORATED HEREIN BY REFERENCE. The Builder agrees that the purchsse price to be paid for the Order Is listed on the Order Form, If eny, plus any charge for additional material ordered. Payment of the purchase price shell be bank treasurer's chack or bank certified check made payable to Advanced Concrete Systems, Inc. and delivered to ACS, or Its authorized agent or employee. prior to delivery of the Superior Wall System or upon delivery but PRIOR to erection of the _II system. Title to the Superior Wall System end loosa meterial shall remain with ACS until the Superior Wall System Is delivered to the location designed on the revarse side of this Order Form, and Bulldar hereby grants to ACS a sacurlty Intarast in the product sold and delivered under the Uniform Commercial Code, until full payment of all monias dua have bean made. Builder shall carry such Flra and othar Casualty Insuranca on the Superior Wall System.ln an amount equal to the unpaid balance due hereto, with loss payable clause to ACS as Its Interest may appear and Builder agrees to furnish a certificate of such Insurance upon request. Until the Superior Wall System has been fully paid for, It is agreed thaltha Superior Wall System shall at all times ramain a fixtura and not become real astate. Tosecure payment of all monlas dua to ACS, Builder agraes that upon the request of ACS It will execute and deliver e Judgment Note, or notes, financing statements and security agreements, including Confession of Judgmant clause and Warrant of Attorney to confess judgmant. in case of a default by Bulldar, ACS shall have no obligation to deliver any Superior Wall system materials or parts to a Builder which is In default on any obligation. For the purposes of this paragraph, the word "defaulr shall Include default with any corporation or entity In which the Builder is an officer, owner, stockholder, or member of the Board of Directors. Builder agrees that the Superior Wall System shall not be occupied as part of a structure or for any other purpose unless and until ACS has been paid all monies due to It. ;. LIMITED WARRANTY. ACS warrants that the Superior Wall System and loose materials being sold shall be free from defects In materials and workmanship for a period of (15) years from the date of delivery. It is agreed by Builder that ACS's sole responsibility herein Is to repair or replace defacts and It shall not be liable for any compensatory, consequential. incidental or other damages of any kind whatsoever. ACS makes no warranty with regard to any component product which Is Inciuded In the sale of which carries Its own manufacturer's written warranty. THIS WARRANTY IS IN LIEU OF ANY OTHER WARRANTY EITHER EXPRESSED OR tMPLlED INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF USE FOR A PARTICULAR PURPOSE. For any attachment or product which is to be completed or installed by the Builder, whether supplied by ACS or another. Builder agrees to install the same In a safe and workmanlike manner. Builder agrees to defand and hold harmless ACS from any claim, loss or suit on account of Bullde(s failure to comply with the promises contained in this paragraph. Absolutely no charges, costs or Invoices of any kind or any purpose will be paid by ACS unless authorized In writing In advance of the expenditure. Incorporated herein by reference are the specifications for a Superior Wall System manufactured by ACS which are in eflect on the date of this quote. ACS has a policy of continuous Improvement to Its product and reserves the right to change materials and specifications without notice. Due to occasional shortages of certain building meterials. ACS reserves the right to substitute materials of an equal or superior quality or value, whan necessary without notice. It Is recommended that the Builder so advtse his ratall customers at the time of Its sale in writing of this fact. 6. All materials shipped by mistake or in eXcess of qualities needed to complete the Superior Wall System in accordance with the plans and specifications remain the property of ACS and are to be made available for return to ACS. 7. Builder acknowledges and agrees that the plans and specifications for the Superior Wall System are the sole property of ACS and that they may not be used for the construction of any wall systam other than a Suparior Wall System. All such plans and specifications are property to and copyright of ACS. 8. Builder agrees to sign delivery receipts at the time of delivery. Such delivery receipts signed by Builder, or his agent or employee, shall constitute proof of delivery or notice In writing that delivery was made on the specific date, that the Builder has Inspected the product and accepted It, and that all the terms and conditions of this Agreement prevail. 9. Deietions, additions, or revisions to an Order must be in writing and signed by both parties. Requests to extend the agreed delivery date are Included in this requirement. The Superior Wall System will be produced In accordance with original delivery date and It will be loaded and held on a carrier at the factory. When a Superior Wall System has been loeded and held reedy for delivery at the factory, there will be a fiva (5) day grace period followed by a $20 per day demurrage for each Superior Wall System held In our yard beyond the grace period. ACS will hold the Superior Wall System on a cerrier at Its factory for up to a maximum of ten (10) additional days altar which It may, at Its discretion, cancel this agreement, retain the down payment on account of damages, notify the Builder of the breach of contract and the emount of which losses shall Include tha demurrege charge from the end of the grace period until the Superior Wall System is resold, the difference In the resale price received and the original price, the cost of sale Including commissions and other costs and expenses Incurred In the resale, all of which Builder agrees to pay to ACS as damages. All risk of loss to the Superior Well System shall shift from ACS to the Buyer at the end of the said ten (10) day period ACS assumes the responsibility for other damages to loads while they remain In our yard for a pariod of up to fifteen (15) days from the date of the completion and loading of the Superior Wall System. The obligation for the protection of the Superior Wall System from Inclement weather shifts form ACS to the Buyer when the unit Is delivered, except as stated previously. Any demurrage charge outstanding must be paid by the Builder before any product will be shipped to the Builder or to any other entity or corporation In which the Builder Is an owner, officer, director or shareholder. 10. The price quoted herein Is guaranteed not to increase for a period of thirty (30) days from the date of this quote. 11. No conditions will be honored unless herein stated or herein referred to and acknowledged by ACS. ACS shall not be liable for delays in filling this order caused by Interruption of transportation facllitias, fire, floods, explosions, riots, material shortage, strikes or any other delays beyond its control. 12. ACS makes no rapresentations, agreements or warranties other than those contained herein. This contract Is composed only of this document, the plans attached hereto, and the specifications, Incorporated herein by referance. No verbal representation, edvertisement, letter, brochure, manual or other document is e pert hereof and any of such are superseded hereby. 13. The only parties to this contract Intended to be benefited hereby are ACS and the Builder whosa signature appears on the reversa side hereof, and the covenants, agreements, representations of ACS mede herein shall extend solely to said Builder and to no other person or entity, known or unknown, who may be aflecled thereby. 14. This Agreement may not be assigned by the Builder without the express written consent of ACS. 15. Any sums due from Bulldar on the agreed delivery date will Incur charges thereafter at the rate of one and one-half (1 112) percent per month, and ACS shall be entitled to collect said service charges as well as all of its reasonable attorney's fees from the Builder occasioned by the dafault of the Builder under this or any other contract. 16. ARBITRATION. All claims and disputes related to this contract whether by ACS Builder, or third party, shall ba subject to arbitration in eccordance with the rules then obtaining of the American Arbitration Association and with the arbitrator to be selected by the American Arbitration Association. Written notice of demand for arbitration shall be filed with the other party to the contract and with the American Arbitration Association within a reasonable time after the dispute shall have arisen, with the hearing to be held in Mlddleburg, Pennsylvania. The datermlnation of tha Arbitrator shall be final and binding upon all parties involvad. 17. The waiver of any right or default in anyone Instance shall not be deemed to be a waiver of any future right or breach of this contract. 18. Time Is of the essence of this agreement. 19. ACS's sola responsibility to the Builder is to construct and deliver the Superior Wall System and described on the Order to the Builder's site, to 11ft the Superior Wall System from the road carrier to set up, assemble or complete the construction of the Superior Wall System at Bullde(s slle, but has no responsibility to excavate, install footars, support materials, drelnaga or utilities of any kind. 20. Builder recognizes and agrees that delivery carriers are the sole property of ACS, and Builder agrees, that It has the responsibilities of a bailor while the road carriers are In his possession or control, Builder agrees that ACS has the right at all times to go upon Bullde(s land or building site for the purpose of the removal of Its road carriers or the removal of the Superior Wall System if it has not been paid In accordance with this agreement. 21. Builder agrees to follow Builders procedure Packetln the erection and completion of the wall system, and to assume full responsibility for soli conditions, excavation and material placamant and site preparation as more particulariy described In the Disclosure of Soli Conditions signed concurrently herewith. Buyer shall hold ACS harmless form any costs, damagas, awards or attomeys fees should Builder fall to comply with these promises. 22. During erection of the wall system, Builder shall clear the area of persons and property so that no one Is under a wall held by a crane, no one Is In tha danger area in the event that a crana or wall tips over, and It shall take such other precautions to prepare the site for safe delivery of the product. 23. For weight bearing purposes, Builder agrees that a 10" plate shall be on top of the wallsyatem. 24. Superior Walls Installers andlor Licensees cannot be responsible for disturbed soil beneath the stone foundation. Any excessive depth of excavation, removal of rocks, stumps, or simply an error on the part of the excavator must be replaced with stone. NEVER backfill with soil. 25. In the event that the Builder andlor customer cancels delivery of a Superior Wall System that has alreedy been scheduled for erection, the Builder and/or customer shall be responsible for any and all charges Incurred by ACS from the haulers, arectlon crew, andlor crene company. These charges must be paid by the Builder before any product will be shipped to the Builder or to any other entity or corporation in which tha Builder is an owner, officar, director or shareholder. 26. Builder represents that the soil conditions at the site described on the Order Form attached hereto meet or exceed the requirements stated in the Builders procedure Packet. The Builder undarstands that he must maintain the site prior to construction of the Superior Walls In a condition that meets or exceeds the soli condition requirements stated above. All corner pins must be In place before ACS crew arrives to eliminate downtime charges. 27. Builder also agrees to prepare the site In accordance with the Builders procedure Packet provtded to the Builder by Advanced Concrete Systems, Inc. and that he will make such a preparation and precaution as Is necessary to prepare the site for the safe dallvery of the product. 26. Builder understands that II the soli conditions do not meet the minimum conditions described above, the Installation may fall causing damaga to parsons property. In that event, the Builder agreas to hold Advanced Concrete Systems, Inc. harmless for any and all damage, lossas, lawsuits, Including attorneys fees, caused by substandard soli conditions. 29. Builder acknowledges that Is has the responslblJlty for any and all excavation and material placement necessary to allow for the erection of the Superior Wall System, In the event that Advanced Concrete Systems, Inc., is required to expend any sums for labor or materials to correct sub standard soil condition. Builder shall reimburse all of such sums of money promptly as a part of the purchase price and in accordance with the payment terms stated in the Terms and Conditions of Order. 30. Builder further agrees that II the site Is not prepared as specified when the ACS crew arrives, he will be responslbla for any and all expenses Incurred for erection crew, delivery trucks and/or crane. 0, ,nAa, a,knnwlAdoes that he has the responsibility for installing the stone footer at, or below local Irost line and that he has the responsibility for keeping the footer system from freezing. Q ~; [i:!rF {~t.' F:: '~(' ~~' ~ -< 1"00.) = = ~ CJ /"T1 n I o 11 s=! mpg ;:,m ::nO 0.1 :-;I~ _.I: -T~ 96 ('5m ::::-I ?5 --< -0- 3: ~ N \0