HomeMy WebLinkAbout95-01772
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LARRY PA~~BR80N AND LARRY
PA~~BR80N t/d/b/a L.B.
PA~~BR80N CORS~RUC~IOR CO.,
Plaintiff
v.
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IN ~BB COUR~ or COJOlON PLEAS
or CUMBBRLAND COUNTY, PA.
CIVIL AC~ION - LAW
RO. q5 - 1'11)",
L.B, SMI~B, IRC.,
Defendant
JURY ~RIAL DBMAHDBD
NO ~ I C B
YOU HAVE BBBN SUBD IN COUR~. 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 oth~r 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.
COURT AIMINISTRATOR
ClMBERLAND CO COURTHOUSE 4 th FLOOR
1 COURrnOUSE SQUARE
CARLISLE PA 17013 3387
(717) 240 6200
LARRY PAnERSON AND LARRY I IN THE COURT OF COMMON PLBAS
PATTERSON t/d/b/a L.E. I OF CUMBERLAND COURfY, PA.
PATTERSON CONSTRUCTION CO. , I
I CIVIL ACTION - LAK
Plaintiff I ~b - I'I'1L
I NO.
v. I
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L.B. SMITH, INC., I
I
Defendant I JURY TRIAL DBMAHDED
AMENDED COMPLAINT
INTRODUCTION
1.) This is an amended complaint brought for damages based
both upon a contract and for incidental damages caused by
defendants failure to perform under a contract to provide a
reliable, functioning piece of construction machinery plaintiff
rented from defendant.
PARTIES
2.) The plaintiff Larry Patterson and Larry Patterson t/d/b/a
L.B. Patterson Construction Co. (both hereinafter "Patterson") is
a resident of Dauphin County, Pennsylvania.
3.) The defendant L.B. Smith, Inc., is engaged in the
business of renting construction equipment and has offices at 2001
State Road, Camp Hill, Pennsylvania.
OPBRATIVE FACTS
4. ) On or about May 25, 1994, plaintiff entered into a
contract (hereinafter "the contract") with defendant for the rental
of a Commander II Power Curb Machine (hereinafter "machine") for 3
months.
5,) Plaintiff pre-paid $7,500,00 in rent for the machine and
was forced to purchase a $90,000.00 insurance policy for
$885.00/month,to protect this same "machine".
6. ) Plaintiff in reliance upon defendant and their "machine"
entered into 3 contracts to do construction work, all with
defendant's knowledge, who assured plaintiff the machine would
perform well.
7,) Defendant's machine would not work even though defendant
provided the machine to plaintiff and warranted its performance
both impliedly and expressly.
8.) As a result of defendants failure to perform under the
rental contract with plaintiff, plaintiff was injured in the
following particulars:
a.) Plaintiff was put off the job, and lost the
opportunity to perform, under two contracts to do curbing in the
gross amount of $247,500,00, of which $60,000,00 was net profit
lost. These contracts were for two "K-Mart" jobs in Western
Pennsylvania.
b.) Plaintiff also was unable to perform under a
contract to do curbing for a "Blue Shield" contract grossing
$135,975.00, of which $29,400.00 was net profit lost,
c.) Plaintiff lost $7,500.00 prepaid rent which
defendant kept.
d.) Plaintiff lost $885,00 in money paid for an
insurance premium on the machine.
e,) Plaintiff lost a total of $13,593.00 prepaid for
labor costs as a result of defendants failure to perform.
9,) Defendant sent their own technician to try and fix the
machine but he was unable to make the machine function properly.
10. ) The defendant knew before renting the machine to
plaintiff that the machine was deficient and/or was not operating
properly,
11.) Notwithstanding defendant's knowledge of the machines'
inadequacies the defendant rented the machine to plaintiff while
representing that it could and would do the job of laying curb.
12.) The "machine" was not available at the rental site but
defendant promised to deliver it to plaintiff's Western
Pennsylvania job site.
13. ) On the basis of defendant's representations, the
plaintiff entered into the aforementioned agreements (paragraph 8
above).
14, ) Prior to delivery of the "machine" but after defendants
had promised to deliver it, defendants' agents Mike Kelly and Dick
Wolf called plaintiff and told him that the machine was not
functioning properly but that a faulty valve was being replaced and
that they would repair the machine at the Western Pennsylvania job
site to make sure it worked.
15, ) Defendant in fact worked on the machine more than 5 days
at the "K-Mart" job site but could not get the machine to work.
16,) The machine would not function properly before delivery
and a new flow divider valve was installed while the old valve was
taken off and sent out to be rebuilt by defendants.
1 7 , ) After this was done, the machine still would not
function properly.
18.) As a consequence, the plaintiff was put off the two "K-
Mart" jobs (see paragraph 8 above).
19.) The machine was then delivered to the Blue Shield job
site where defendant worked on the machine but could not get it
working properly for two days,
20.) Plaintiff lost this contract also,
21.) Plaintiff demanded to have his rent monies returned but
was refused by defendant's billing department, who represented that
they would take the matter up with Mike Kelly.
22.) Neither defendant or any of its agents ever responded to
plaintiff's request to have his rent monies returned.
23. ) A copy of the purported rental agreement signed by
Patterson is affixed hereto and marked as Exhibit "A".
24.) Plaintiff signed this agreement in blank form at the
request of a sales person.
25. ) "Dick Wilson", who is known to plaintiff, was not
present and affixed his signature if it is his signature, to
Exhibit "A" later,
26.) Plaintiff's best recollection is that the form he signed
was blank except for his signature and had no writing on the back -
at least plaintiff was not directed to the back of the form he
signed.
27.) At no time were terms and conditions of rental of any
kind ever pointed out to or discussed with plaintiff.
28.) The defendants' salesperson kept the original of Exhibit
"A". Plaintiff was only supplied with a copy thereof which
reflected printing on the rear of Exhibit "A". '
29.) The defendant has supplied plaintiff with Exhibit "B"
\Y~'. l~/U:'I~IALA~~t:IVlt:N. ""'if ICUalo~IP.~.. .!i1::;]!i
TllIS RENTAl AGREEMENT modo flb day 01 -I VAle ,18 ::!..-. belw.en LB. Smlllllnc.lIrifI pmq., oIblll
2001 Slall Road. Camp Hil, PA 1701\ (hei..n a~..r callod 'Owner') and
L, r;, PAT11';TlJ~N !'oN !di!ut. new 717
. Pmillame NC
~ Sr. J./nmdJ/Jr<1 . I'll 17/0'; ~~'lJtliN
..-nnl Adana ., . ~Counly
Own... agr... 10 ..ntlo Usar and U," hereb] renlS from Owner \he ..nowlng duaibed aquipmanl (he..lnaller "".,red 10 as 'tqUipmenl'):
U ) ~At:.C t'omm/INIX:"'Z A -I II C, 0 oQ. o~
~ ,c. /'1 0 I d. t' ~ ~ .s-OO ,~ l'.(.
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Cullom., Number
MtJRrH
JJ{r 77117
Phcne
(ht",inaller caIad 'U.., , I
b
oj.
PLACE OF USE: Thi.aqulpmenlwllbeusadn p.. on' . ."..+uo;.
whitll pI_ will nol be ehanged wilhoU\ priOl wrinan con.ant 01 Owner. (COUNTY) tSTATEI I
F..lu.. to oblain th. ownll'. _sant prior 10 rliocaUng !he .quipment'" fallu", Illlnlonn owntr 01 !he lOcation 01 fl. tqUipmtnl upon dtmand con.tilllt. a ma.
rial breach of thl. agreem.nl .ntitling ownlllO all remed'... av..labl. pursuanllo this aglMmenl and applicabl.law.
TRANSPORT: An renllll. "' F,O,B. Shipping Poin. Th. Usar Is ..sponsibl. fet hauling dlllg.. 10 fl. job.~. and rellm oIth. aquipmenllll an LB. Smi"',
Inc, laciliry unit.. oth.rwise agreed in wriling.
TERMS OF RENTAL: This renlalis 'or a MINIMUM lenn of / 1YlOnn-1 beginning on lIle date 01 dlUve'l' and ccntinuing
thereaher untJIthe eQUipmenl is relUrned in . renlabl. OlltllDonal conQbOn II Usa" expen.e '" o....f. location. o..ner may. upon 15 clays wnlltn notica Ill"'e
User. Ierminalt !his Renllll Agleemenl al any time allar "e minimum lann has expired, U..r promi... to pay o..nll chllges IN ADVANCE beginring with lI1e
dale of delivery and on !he same dala tach mon!h. lhereatter u lon"",s: '
Us., Renfal Rate (single shift) P.r
Insurance Valuation $ q U . 0 0 0
Ins. Agent. AL Wt.LCOTi - ~/oJ(,<'\Il \
Nam.
_p U 8c:.", ~~\-I - (() '" r. \..I. \ \
Mail Add,.ss
r.{;lf:J. "'.:!. local $
MC/JrH
$
'Z tJao. oD
PA
Acc;c:t,,,,t
Phone
Ilcll.
--
I....s:
Cu,
7lcs -II y.~
Sales Tax . Slale $
Tofal Us.r Charges
Filing Charg.s Fi,sl Month Only - UCC-l, Slaf. of
Tolal Tax $
$
$
, I eo:.
't.:u>. -
20.00
ADDITIONAL RENT: Use, ogl'" lhalren~ i. basad on use ollhe equipmenllet one .hiIt IleI d-v.. or nol molt than......1am:lred .Ighry (180) hoUrs pt,
month. II _ipm.nl i. opt,aled in uce.. 01 one hundted Ilghry (180) 110.... per month. addillonal ..nl wll be chflged al al rala 01 $ per hour
In excess 01 ISO. If U'" Itrminll" !hI. agre.m.nt belct. Ixpiralion 01 \he minimum lann. U... ag_s 10 pay all Itnl cloe plu. a _n c:hatgt 01\5% 01
the ,...,. for evtKy paction 0' a month prior to expir.uion 01 tie minimum term.
NOTE:
(11 Th. USIf Is required 10 insure thi. proptrty with all allachmants and accaSlOries agaln.' all ri.ks lor an amounl equal \0 th. vaIut staled abovt, The
User shan InsINCI a duly au!horized agent 01 the insuring compan, to fumlsh th. Own.1 with a cenillcala ollnsuranoe naming lht Ow"", In !he 10..
payable dause and Insuring lIle equlpmlnl for !he fuD valu. againsllo.. 0' damage by r.., .xtended ccYlllge. \h.1I. colIIsIoiI, vandallllll, maiciou.
desllUc:1ion. and all other porils. Own., rlStM. !he righl to ctoO.. a dalm. adjusting rvrn who I. lamilat willi th. ..nled aqUpmtllL Owner lllSaMS !he
righl \0 mal<t needed "'polrs to kttp th. unil ..nlad wilhoulth. U..... Insurance a~uslar ac1UaJly looking alth. damages. The Ilstt wlivas lit rlghllll
loinl d1ed<s and aullletiz..llle InSUntflll m.ke paymlnl di~ to \he 0.."'1.
(2) In I...nl U,"1s laJlexemp~ uempllon cenificalt i. Q on Ill. Q allaChed 01 cfllllC\ pay penn~ b
(3) II an, ctwge payment is nol paid within Ian (10) daysahtl clot daI., U.., promisa'lll pay a late ctIarg. 011 1/2% ptl montht1n.amuallllla)...-
10 Ihe cnllgel.
PURCHASE OPTION: II blank .paces nthis stc1ion fl. nol ftlltd In. no purclw. oplion ulsls.
U." has the option to purchase let a MAXIMUMlann 01 day.trcm dale th. ","",,*,1. renled b a plRhasa
price 01 $ a~u'lad U herltn proVIded. The purchas. pnc:t .hall be decntasad by all rents paid by Ilstt during lit opdon Itrrn
and .haD be increased by ai' applicable sale.. use and proptrty _.. assessments. lcenst lees, nen warranry ",pon made by o..ner..... ~ ~
compuled al ,.. per annum tslmplt inlt"'SI) on th. decfining balance. No opdon given shall be tffoctivt unlil"" Ning ollJCC finandng "'_ts with
!he ""propriat. Slale and/or Counry authorilies. II U.... has ccmplied with allanns and ccnditialS of thI. Agreement, \his pwchut oplion may be tlaldstd by
Minen notice and by paymenl in lull 01 the aqusted purcha.. priet. Upon payment, Owner wiltranslll tille 01 tqUipmtnllll U..,. (Set dI.... pn"lslon on
.."",... side,) The U." will forlell Iny .nd III rlghl. 10 purchaslthe aqulpmen' unde, lhelerm. 01 Ihl. agrMmenllllh. U.. "'W1I.Ih. aqulp....n. or
does notexercis.e lhe purchase optJon wilhJn th, mazimum option term. whichever occurs n"L
USER HAS READ, UNDERSTANDS, AND ACKNOWLEDGES THAT THIS AGREEMENT IS ALSO
SUBJECT TO THE TERMS AND CONDIT10NS ON REVERSE SIDE HEREOF
ACCEPTED
LB. SMlTllINC.
SognalUre
Crtdil Approved
By
Call
U..r
rltle
Oa'e
A
cD
S9~"~/'t'l0 J s ",..;
TERMS AND CONOmONS OF RENTAL
INSPECTION BY USER, Us... shalllnspec:: Ihe _ipment prio< 10 inilla/ use or operaaon, Unl... User. prior III use 01 equlpmen~ gives >rrill8n noa.. III 0.""
specilylng any defocto< o"'er obj8Clion to e<;uipman~ n shall be lXlneJusiv8ly presumed. "'01 Us", has fully inspeeled and acknowledged lI1aI ICJlipmenl is in ,cc:
candlOon and repair. and "'at Us... Is satisfied wilh and _led !he equipm.nL
INSPECTION BY OWNER' Owner may Inspoet 1ha equipm.nt at all reuonabl. limu
IIAINTENANCE AND OPERA nON, Us.r wm. allts own ..pens.. ke.p "'. equlpm.nl in good working order and operation cendlllon and U.... will "'misn s
replaalm.nt patti and mainlenanco required III pralOlV. Iha equlpm.nl aa:ordng III good srandatds 01 operaaon dunng Ihis rental....~~ ll!I-"'"
~:;,r:,:',:',. ":.~~o~J~~ .:'" ~~~::::,ir ,~:~ ':'::7.::~: ~~';;~'~I/:;:~~~r.:.::~:~~n;:':I~~~':::;I::;~::::~;':~ ~; ;;':;-,\1mm!. =~c:~;
maintenance 01 Iha equlpmenl shaD be unc!... udusive conll'Ol 01 User and persoM8I aperaang and maintaining "'. e<;uipmenl shall be aginls and .mploy"s ,.
U.... and not Own....
AL TERAnONS' Use, wiD make no alleradans or subsdlUllon 01 any e!lachmenls. cempon.nls or dral or remav. or add any plate attbled to Iha equipm.nL
RETURN OF EOUlPIIENT, Upon tennlnaOon ollhll rental. or upon any der.ult by User. U.... shall deOver and ..1Ilm Iha equipment III Own" at Us.fs '>;anll
In u good order and oplraling ccndldon as when Inllla/ly dellv.red III User. otdInaty WBlt ....pted. In Ih. av.nl Use, IaiJIta relUm equlpmen~ Oovner m.y :al<,
step. naceuaty III repassess equlpmen~ and User shaD be liable III pey alle.penses alreposse.slon, lransportation. slorllge and ,,"ke.ping or equlpm.nt Ir
Ih. .....nl User elects Ill..rum equlpmenl any time after Ihe minimum term ollha ronraJ. chatg.s shaJI b. adjusled an e besl. 01 on"1II1rd (113) 01. manlh'sren...
far .ec:h w..k's use a, any part 1h1l8Cl1. No adjuslment will be glv.n an ..nral chatg.s 01 WMIdy 0' dally rantals. AU ctedltshall be 1&sUed against". renlal cniy
and .xcluslv. 01 sales lax and Insurance ch....s.
DAIIAGI! OR LOS!I, U.... wi pIIlmplly notily o..ne, 01 all damege. 10.. or 1h.1I olrh. equlpmen~ or any pan 01 k. Illg.lher wl1ll all detoJla. User ........ r..ll
responsibiOIy far dameg.lndudlng phyalcal damage and lost rantals, 10... dellrucllan. vandalism. or 111.11 01 Iha aquipmentltom Iha date 01 delivery untilrelllmlC
III "'. owner In a rontabl. ap."'lionaJ cencfllicn. Wh.n damage occurs. !h. rontal rae willlXlntlnue unlil repairs ate made III ..lUm Ihe machine III a saIl open.
tianal ccndidan capable 01 performing all func:lans u oudlned In 1IIe manuladurefs aplnator manual.
In Ih. .v.ntlh. US" lICC8pls 1he equlpm.n~ .s h".ln pIOvided. and !h.reafter 1he said equipment pIllV.s da'lClive or unlit lor u'., or. II lar any alhar lUJcn
user d.slres III dl$ccntinu. Ih. use 01 sald OGulpm.n~ Ihe only remedy 01 user shall be to rerum Ih. .qulpmentto owner and terminate Ihls COIltrICl and III pay
owner an amount which In no avenl shall be I.ss !han !he lranlponaUon c:hatgis on said equipm.nt and minimum ..ntal h...ln prllvided far.
LIABILITY OF USER, Us.r asum.s full ..sponsibil/Iy lor and agr... Illlndemnlly Owner .;ainl!, and will prllrect and .... OWner 1llUm1... tram. Sl'rf lass.llal:il.
ily. donIage and e.pens.ln cannocUon wilh injury III parsons. Indudlng employ... 01 User. or propeny arising from or In cenn8C1jon wI!h 111. use ar apencan cf
Ih. _'pm.ntltom Iha 11m. 01 dellvety 01 ecuipment undl1ll. rerum ID OWn". and US" wiD allls awn esp.nse defond Own" agaln'l all dalml and ,ullS relaen;
to any alleged loss. Oallilily. donIag. or e.pense. including dalml and suils wh.rein Owner is dalmed 10 have bMn nagOg.nt or b..ached wanamias In conn..,
aan wirh Ihls Agreem.nL
INSURANCE, U..r will carry. at Its own .spens.. IlabiOIy Insurance III prlll8Cl1he Own.r In an amaunl nall."rhan 5250.000 per parson and $$00.000 for lilY
accident or OCCUrT8nce lar Injury III persons and 5100.000 lor eamag. to prllp.ny.
IAXa Us.r will pay alIlU.s. ,..s and oth.r c:han.l.' which may be Imposed In cannocUan wilh use 01 Ih. OGulpm.nt during Ih. term. 01 Ihll Ag,"m.nt
TlTlE AND POSSESSION, The equlpmenlshall ..maln Ih. ..cluslve personal prllp8l1y 01 Own.r. or Ils usign... and Usar shall ha.. only Iha rlghtlll !:s' 0'
sam. under the candlOonsstaled In 1111. Ag...m.nL It Is lpeciftcally undemaad !hat User shall acquire no eqully In or right 01 own.rshlp Illlha equlpm.n~ III"
h.v. no righlS 01 any desaiption. olh.r Ihan those speciflcally granled harwln,
DEl'AUL T, In !he .vent of dafau~ by User In paym.nt 01 any monll1ly charges or In p.rfonnan.. 01 111. terms 01 Ihls Agraem.n~ or ~. In Iha opinion 01 Oovner. ",.
.quipm.ntl. being misused or damaged In ."""" 01 ordlnaty w.ar. or II User b....m.slnsol..nt or coau III do busin.... or" e patidan In benlouPZ't or ler
anangem.nt or raorganlzallan II ftled by or agalnlt User, or n tile equipment Is 8lllIched or e recei..r II appointed 10, User. Ihen 1111. Agreem.nl may be tonnInat.
ed at Ihe el8C1jan 0' Own... and Ownflf' may ral<e Immadllllll poasessian 01 equipmen~ wilh or wirhout lorce or process 01 1_ and without waiving any righlllll Sl'rf
amounlS due III OWn... or Sl'rf olher rights 01 Own.r. In Ihe .venl 01 any default, Ih. enllre minimum rental shall becom.lmmedJetely due and payabl., without Sl'rf
demand by Usar or notk:e III User. U..r ag_s III pay all lXl.1I 01 cellacllon. Indudng a_y rae.. ..qulred by Owner III _r monl.1 due undat :Ilis
Agreement or III reco..r rh. equlpmen~ O.lay or failure by OWner to essen a default hereunder shall natlXlnsdlUla e waI....r 01 any ~ent default. II Sl'rf
aptian III pun:hue I. granl8d by Ihll cenlnlCl. 1he aptian to purchase will tarminete and be al no lunher force and .ffwct as ollhe dele 01 any defeu~ al Cuslllmer.
not wilhslanding 1I1811h. dalau~ I. Ialllr CUIIId. II CUIIDmer holds possession allh. Equipmenl bayand Ih. .tal8d tann 01 Ihll conlract, Ih. opllon .. flU"". wiD
tannlnat. as 01 Ihe original .xpj"'lion dalll 01 Ihll cannel. No course 01 canduct. CIISlllm 01 !lad. or usage wiD be ponnlll8d III very Ihe tann. of !his canneL
NONWAIVER, None of Iha lIIim.. cevenanls arlXlndlllons of Ihl. Agreem.nt shaJI be waived by any IICl 01 Own".lls agents or employee.. UClpt by an InSIN-
manl in writing. signed by an sulhorfzed allicer 01 Own.r.
NOTICES, All naUces shaD be In writing by cerlilled mail edCraSHd to Owner or Us.... QI dellvared. at1l1eir addra...lu de.lgnated by 81ihar parly.
ASSIGNM!;NT. Thll Agreement may not be assigned by U_ and lI1e equipment may not be lransfaned or subtented by U.er. 'T1lIs Agr...ma,,1 may be assigned
by Owner and Is subject ID any sacurily Interests gr.ll1l11d by Ownflf' In Iha _ipmontlll Sl'rf ftnanctaJ InsdlUlIon or a1h" secured peIIy.
ENTlRE AGREEMENT. 111. IIInnl IIIld cendldon. of LB. Smilh. Inc.'s Credit Appllcetl... Is 'ncolJlOrated haraln by reiera.-. The tannl and IIlndtlons of "'.
Credit AppllcaOon and 1he IIInnI contalnad he..inabove centlln tile end.. agreement beIWMn Iha plllll.1 and no olhar agreements. g\l8IWIllas. or _des.
oral arwrillen. shall bind Iha panies.
ATTORNEY"S FEES, In 1he....nt any Illfgallan or lXlnlnMlrsy arises out 01 or In lXlnnocUon wirh Ihls Agreement ba_lhe panles haralll. Iha pllY&illng pony
in such RUgaaan or cenll'Oversy shall be endlled III reco....r fn>m lI1e alh... pany or pat1I.. all ..aanable allOmays'IHs. espen... and .uk CIlIlS. IncMlng lhase
assadallld wilh any appeflate or post-judgem.nt IIlDlIClion pre 'u :lngs.
ABI : OWNER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR ft",ln:r! ,
XPRESS OR 1M D, WI R P 0 M RCHANTABIUTY OF THE EQU!PMENT, ITS FITNESS FOR A PARTICULAR PURPOSe. OR WITH
RESPECT TO INFRINCEMENT OR THE UKE, EXCEPT AS STATEO HEREIN. USER WAIVES ALL ClAIMS FOR SPECIAl., INDIRECT, OR CONSEOUElf. II
nAL DAMACES. INCLUDING lOSS OF USE OR PROFITS, HOWEVER ARISING. Elf h ; b ,. -& ')3
CERTIFICATE OF SERVICE
I, Don Bailey, hereby 'certify that I am on this day serving a
copy of the foregoing Amended Complaint upon the person (s) and in
the manner indicated below, service by First-Class Mail, Postage
Prepaid, and Addressed as Follows:
Jennifer M. McHugh, Esquire
Rhoads & Sinon
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108
Don Bailey
IDt23786
845 Sir Thomas Court
Suite 9
Harrisburg, PA 17109
717-541-4400
DATED:
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LARRY PATTERSON AND LARRY
PATTERSON TIDIBIA L.B.
PATTERSON CONSTRUCTION CO.,
Plaintiffs
CIVIL ACTION LAK, d
NO. '7i.. J 7 7). () U~l L' L.L.1>"---
v.
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUH'rY
PEHHSYLVANIA
L,B. SMITH INC. I
Defendants
JURY TRIAL DBMAHDED
NOTICE
YOU HAVE BEEN SUBD 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 war~ed 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.
COURT ADMINISTRATOR
CUMBERLAND CO COURTHOUSE 4th FLOOR
1 COURTHOUSE SQUARE
CARLISLE PA 17013 3387
(717) 240 6200
.
.
CIVIL ACTION LAW
NO. qS.J77;..~-r~
LARRY PATTERSON AND LARRY
PATTERSON T/D/B/A L.E.
PATTERSON CONSTRUCTION CO.,
Plaintiffs
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
PENNSYLVANIA
v.
L.B. SMITH INC.,
.
.
Defendants
: JURY TRIAL DEMANDED
COMPLAINT
INTRODUCTION
1,) This is an action brought for damages based both upon a
contract and for incidental damages caused by defendants failure to
perform under a contract to provide a reliable, functioning piece
of construction machinery plaintiff rented from defendant.
PARTIES
2.) The plaintiff Larry Patterson and Larry Patterson t/d/b/a
L.E, Patterson Construction Co. (both hereinafter "Patterson") is
a resident of Dauphin County, Pennsylvania.
3.) The defendant L,B. Smith Inc. is engaged in the business
of renting construction equipment and has offices at 2001 State
Road camp Hill, Pennsylvania.
OPERATIVE FACTS
4. ) On or about May 25, 1994 plaintiff entered into a
contract (hereinafter "the contract") with defendant for the rental
of a Commander II Power Curb Machine (hereinafter "maChine") for 3
months.
5.) Plaintiff pre-paid $7500.00 in rent for the machine and
was forced to purchase a $90,000.00 insurance policy for
$885.00jmonth to protect this same "machine",
6. ) Plaintiff in reI iance upon defendant and their "machine"
entered into 3 contracts to do construction work, all with
defendants knowledge who assured plaintiff the machine would
perform well,
7.) Defendant's machine would not work even though defendant
provided the machine to plaintiff and warranted its performance
both impliedly and expressly.
8.) As a result of defendants failure to perform under the
rental contract with plaintiff, plaintiff was injured in the
following particulars:
a.) Plaintiff was put off the job, and lost the
opportunity to perform under two contracts to do curbing in the
gross amount of $247,500.00, of which $60,000.00 was net profit
lost. These contracts were for two "K-Mart" jobs in Western
Pennsylvania.
b,) plaintiff also was unable to perform
contract to do curbing for a "Blue Cross" contract
$135,975.00, of which $29,400.00 was net profit lost.
c.) plaintiff lost $7500.00 prepaid rent which defendant
under a
grossing
kept.
d.) Plaintiff lost $885.00 in money paid for an
insurance premium on the machine.
e. ) Plaintiff lost a total of $13,593.00 prepaid for
labor costs as a result of defendants failure to perform.
9.) Defendant sent their own technician to try and fix the
2
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SHERIF'F"S RETURN
CASE NO: 1995-01772 P
COMMONWEALTH OF' PENNSYLVANIA:
COUNTY OF' CUMBERLAND
PATTERSON LARRY ET AL
VS.
SMITH L B INC
I
,
l
LEROY HIPPENSTEEL. III
CUMBERLAND County, Pennsylvania,
to lay, says, that he served the
. Sheriff or Deputy Sheriff of
vho being duly svorn according
vi thin
COMPLAINT
upon SMITH L B INC the
defendant, at 1217:00 HOURS, on the 13th day of ADril
19~ at 2001 STATE ROAD
CAMP HILL, PA 17011 ,CUMBERLAND
County, Pennsylvania, by handing to SARA COWEN, ADMINISTRATIVE
ASSISTANT AND ADULT IN CHARGE
a true and attested copy of the COMPLAINT
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
8.96
.00
2.00
So ansvers: .,;:;, .~
X'?"-.<<; _ ~
H. Iho~11ne, ~her
SZ8.~6 DON BAILEY
04/17/1995
by ,tt .
;1./ ~..,~~
eputy er1:t1
Svorn and subscribed to before me
this .ll/d; day of 'it,.iI
19 Q( A.D.
"hu q,.r~b~'ot~~'
BY~~&'.i. m/k4f..(L
Tomas ~. French
Jennifer M. McHugh
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
WHEREFORE, Defendant, L.B. Smith, Inc. respectfully
requests this Honorable Court to dismiss Plaintiff's Complaint
pursuant to Pa. R.Civ.P. 1028(a) (2).
Respectfully submitted,
RHOADS " SINON
Attorneys for L.B. Smith, Inc.
Date: -':)':" ~'I"'"
81512
CBRTIPICATB OP SBRVICB
I hereby certify that on May 3, 1995, a true and correct
copy of the foregoing "L. B. SMITH, INC.' S PRELIMINARY OBJECTION TO
PLAINTIPP'S COMPLAINT" was served by means of United States mail,
first class, postage prepaid, upon the following:
Don Bailey, Esquire
845 Sir Thomas Court
Suite 9
Harrisburg, PA 17109
~~~.~
Linda J. mith
81572
2. Denied. After reasonable investigation, Defendant
is without knowledge or information sufficient to form a belief as
to the truth of the averments contained in paragraph 2 and the same
are denied. Proof, thereof, if relevant, is demanded at time of
trial.
3. Admitted.
4. Denied as stated. It is admitted only that
plaintiff entered into the Rental Agreement attached to the Amended
Complaint as Exhibits "A" and "B." The Agreement, being a written
instrument, speaks for itself and requires no interpretation by
Plaintiff.
S. Denied. plaintiff paid the one month rental of
$7,000. He also paid taxes in the amount of $400.00, and a $20.00
fee for filing Uniform conunercial Code notices. As to whether
plaintiff paid insurance on the equipment, after reasonable
investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments
contained in paragraph 5 and the same are denied. Proof, thereof,
if relevant, is demanded at time of trial.
2
6. Denied. After reasonable investigation, Defendant
is without knowledge or information sufficient to form a belief as
to the truth of the averments contained in paragraph 6 and the same
are denied. Proof, thereof, if relevant, is demanded at time of
trial.
7. Denied. It is denied that the equipment would not
work when properly operated. With respect to the remaining
averments in paragraph 7, denied. The averments contained in
paragraph 7 constitute conclusions of law to which no response is
required and the same are denied.
B .a-e Denied. After reasonable investigation,
Defendant is without knowledge or information sufficient to form a
belief as to the truth of the averments contained in paragraph Ba-e
and the same are denied. Proof, thereof, if relevant, is demanded
at time of trial. By way of further answer, it is specifically
denied that Defendant failed to perform under the Rental Contract
or otherwise and denied that Defendant, through its conduct, caused
any injury to Plaintiff whatsoever.
9. Denied as stated. Defendant's technician assisted
Plaintiff in setting up the machinery and in instructing on its
operation. Defendant also replaced a steering and centering valve
3
and the machine functioned well, If the machine did not produce
the results desired by Plaintiff, it was because the machine was
not operated properly by Plaintiff and its employees.
10. Denied. On the contrary, the machine was not
deficient and worked well when operated properly.
11. Denied. The machine was not inadequate and was
suitably fit for the purpose intended.
12. Denied as stated. At the request of Plaintiff,
Defendant shipped the machine for which Plaintiff agreed to pay
freight charges therefor.
13. Denied. After reasonable investigation, Defendant
is without knowledge or information sufficient to form a belief as
to the truth of the averments contained in paragraph 13 and the
same are denied. Proof, thereof, if relevant, is demanded at time
of trial.
14. Denied as stated. Prior to delivery a divider valve
was replaced, but was later found to be in good working order.
4
15, Denied. On the contrary, when the Defendant's
technicians set up the machine, it operated well. It was only when
plaintiff attempted to operate the machine and did so improperly,
that the Plaintiff unable to lay curb properly.
16. Paragraph 15 hereinabove is incorporated by
reference.
17. Denied. The machine functioned correctly.
lB. Denied. It is denied that the machine failed to
work properly. With respect to the remaining averments, denied.
After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the
averments contained in paragraph 1B and the same are denied.
Proof, thereof, if relevant, is demanded at time of trial.
19. Denied. On the contrary, the machine worked
properly when operated correctly.
20. Denied. After reasonable investigation, Defendant
is without knowledge or information sufficient to form a belief as
to the truth of the averments contained in paragraph 20 and the
5
same are denied. Proof, thereof, if relevant, is demanded at time
of trial.
21. It is admitted that Plaintiff requested return of
his rent money. It is further admitted that said request was
denied. The remaining averments are denied.
22. Denied. Plaintiff was told that his rent moneys
would not be returned.
23. Denied. The Rental Agreement signed by Patterson
contained the front page (Exhibit "A" to the Amended Complaint) and
back page (Exhibit "B" to the Amended Complaint).
24. Denied as stated. On the contrary, Plaintiff signed
the agreement with the blank lines partially completed. A
completed copy of the agreement signed on behalf of L.B. Smith,
Inc. was telecopied to Patterson the following day prior to
delivery of the equipment. Patterson thereafter accepted delivery
of the equipment and used same without objection to the terms of
the agreement which Patterson had in fact signed.
25. Admitted.
6
26. Denied. After reasonable investigation, Defendant
is without knowledge or information sufficient to form a belief as
to the truth of the averments contained in paragraph 26 and the
same are denied. Proof, thereof, if relevant, is demanded at time
of trial. However, if this is Plaintiff's recollection, it is
inaccurate. The printed matter on Exhibit "A" and Exhibit "B" was
present on the lease at the time signed by Plaintiff.
27. Denied. On the contrary, the terms and conditions
of the Agreement, as set forth in Exhibits "A" an "B" were
discussed with Plaintiff.
28. Denied. Plaintiff was given a complete copy of the
Rental Agreement which includes both Exhibit "A" and Exhibit "B."
29. Plaintiff had ample opportunity to review Exhibit
"B" in its original form.
WHEREFORE, Defendant, L.B. Smith, Inc. demands judgment
against Plaintiff, dismissing the Complaint and for costs.
7
HBW MA'l'TBR INCLUDING APPIRKATIVB DBPBNSBS
30. Paragraphs 1 through 29 of the within Answer are
incorporated herein by reference.
31. According to the terms of the Rental Agreement,
plaintiff leased the machine, used and "as is" without any implied
warranty of merchantability or any implied warranty of fitness for
any particular purpose.
32. Plaintiff's claims are barred by failure to mitigate
damages.
33. plaintiff's claims are limited or are barred by the
limitation of warranties and liabilities included on the Rental
Agreement which states:
Limitation of warranties an liabilities:
Owner makes no representation or warranty of
any kind, oral or written, express or implied,
with respect to merchantability of the
equipment, its fitness for a particular
purpose, or with respect to infringement or
the like, except as stated herein. User
waives all claims for special, indirect, or
consequential damages, including loss of use
or profits, however arising.
B
COtJN'l'BJlCLAIM
45. Paragraphs 1 through 44 of the within Answer are
incorporated herein by reference.
46. Pursuant to the terms and conditions of the Rental
Agreement, Defendant is entitled to recovery of all reasonable
attorneys fees incurred in defense of this matter, including
expenses and cost of suit, for which claim is hereby made.
47. Pursuant to the Rental Agreement, plaintiff has
incurred freight charges in the amount of $254.00 and $1,047.60,
respectively, and service bills in the amount of $1,657.95,
$809.95, respectively for a total amount due and owing of
$3,769.50. Additionally, late payment charges have accumulated and
continue to accrue pursuant to the terms of the Rental Agreement,
which late charges as of May 8, 1995, total $417.09, for a total
amount due and owing under the Agreement, exclusive of attorneys
fees and expenses and costs of suit, of $4,186.59, as of May 8,
1995.
48. Plaintiff has failed and refused to pay the
aforesaid amounts due and owing under the Rental Agreement.
12
WHEREFORE, Defendant I..B. Smith, Inc. demands judgment in
its favor and against Plaintiff on its Counterclaim in the amount
of $4,186,59, together with interest, costs and attorneys fees.
By:
s A. French
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for L.B. Smith, Inc.
/83037
13
05-31-1995 09101
P.02
VRR TP:l:CA'l'IOH
.
Jeffrey A, Savard, depol!le. anc1 BaYB, Bu!)ject to the
peualtie. of 18 Pa. C,S. I 4904 relating to unBworn fal.1f1cat1on
to authoritie., that he ie the Corporate Secretary of L,B. amith,
Inc., that he make. thill verific:ation by it. authority and that the
facte .et forth in the foregoing are true and correct to the be.t
of hi. knowledge, information and belief,
Date: /1't.v JI. 1.9..95
I ,
J.'~-~~
"
LARRr PATTERSOH AND LARRr
PATTBRSOR ~/d/b/a L.E.
PATTERSOH COHSTRUCTIOH CO"
Plaintiff
I IH THB COURT OF COJOIOH PLEAS
I OF CUMBBRLAND COUNTY, PA.
I
I CIVIL ACTION - LAW
I
I HO, 95-1772
I
I
I
I
I JURr TRIAL DBMAHDED
v.
L.B. SMITH, IHC.,
Defendant
PLAIHTIFF'S ANSWER TO HEW MATTBR
AND COUNTERCLAIM
HOH COMBS Plaintiff, Larry Patterson and Larry Patterson
t/d/b/a L.E. Patterson Construction Company, by and through
his attorney, Don Bailey, Esquire, and files the within Answer
to New Matter and Counterclaim.
30.) Admitted for purposes of form only but denied as to this
paragraph being a proper element to include in New Matter ie.
defendant's answer does not require any response by plaintiff.
31.) Denied. The averments of this paragraph are false as to any
factual inferences since defendant represented to plaintiff
that the machine would be made available in working order.
This paragraph is denied as to any conclusions of law
contained therein as being beyond plaintiffs ability to
answer.
32.) Denied. This paragraph is an apparent affirmative defense to
which plaintiff cannot respond but regardless plaintiff in all
ways sought to mitigate damages.
33.) Denied. These averments cannot and do not apply since the
equipment was not made available for inspection and the
boilerplate provisions referred to in this paragraph are a
collection of self serving small print that were never pointed
out or explained to plaintiff or ever shown to plaintiff nor
does plaintiff recollect and therefore denies them being on
the rental agreement at the time he signed.
34.) Denied. This paragraph is not properly pled since it is not
new matter and is not identified as an apparent crossclaim.
Furthermore if attorney's fees are due and owing they are due
and owing to plaintiff in recompense for defendants failure to
perform pursuant to their promises,
35.) Denied. This paragraph, which is devoid of any factual
averments, is false as to any inference of misuse of the
rental equipment by 'plaintiff.
36.) Denied, This paragraph ,is devoid of merit on its face being
in direct conflict with defendant's admissions in paragraph 5
of their answer to plaintiff's complaint.
37.) Denied. Defendant's averments in this paragraph are blatantly
false, it being known to defendants that their machine failed
to perform (and could not be made to perform at anytime) prior
to any additional contract requirements such as rent being due
from plaintiff,
38.) Denied. Plaintiff's complaint was clearly filed in a timely
fashion.
39.) Denied. This paragraph is a simple legal conclusion in the
form of a boilerplate affirmative defense to which plaintiff
cannot respond,
2
40.) Denied. Defendant never allowed plaintiff to inspect the
machine, these machines being in great demand. Further
defendant assured plaintiff the machine would be delivered in
good working order. By way of further response plaintiff
could not inspect the equipment because it was at an unknown
distant site from defendant's rental site.
41.) Denied. The equipment was never in good working condition and
in fact it never worked, even for defendant's own technicians,
and plaintiff did object to its failure which defendant's
technicians acknowledged at the time. As to the ".rental
agreement". cited in this paragraph it was never seen or
acknowledged by plaintiff in its completed, form.
42.) Denied. The averments of this paragraph are false and they
are known by defendant to be false. Plaintiff never had even
a reasonable opportunity to operate the equipment because it
never worked as promised and any claim of ".preserving the
equipment". being a spurious allegation known by defendant to
be false~
43.) Denied. Plaintiff has composed a proper and sufficient claim
pursuant to Pennsylvania law.
44.) Denied. This averment (or affirmative defense) is simply
false, At no time did plaintiff misuse or fail to maintain
the machine, all of which is well known tO,defendant,
WHEREFORE the plaintiff, Larry Patterson and Larry Patterson
t/d/b/a L.E. Patterson Construction Company,'demands judgement
against defendant together with costs as claimed in his original
3
complaint all of which is incorporated herein by reference.
PLAINTIFF'S ANSKBR TO
DEFENDANT'S COUNTERCLAIM
45.) Admitted only for purposes of incorporation but not as to any
allegations as previously responded to,
46.) Denied, Defendant is ~ot entitled to attorney's fees but
conversely defendant is responsible to pay plaintiff's
attorney's fees together with damages as sanctions for making
intentionally false and misleading averments in their New
Matter and Counterclaim and for violating their promises to
plaintiff.
47.) Denied. Defendant's Counterclaim damages as averred in this
paragraph are not due and owing since the averments of this
paragraph are based upon false and ,misleading factual
allegations and simple legal conclusions which cannot be
answered further. By way of further response the defendant
never adhered to the ag~eement and never supplied a working
functioning machine as falsely represented,
48.) Denied. Any representation or innuendo in this paragraph that
plaintiff owes any monies to defendant is false and is known
by defendant to be false. Plaintiff has in fact performed to
his detriment under the agreement in reliance on defendants
false promises and paid monies taken from him under false and
unlawful pretenses.
4
WHEREFORE the plaintiff Larry Patterson and Larry Patterson
t/d/b/a L.E. Patterson Construction Company demands that
defendant's Counterclaim be dismissed and that judgement be entered
for plaintiff together with attorney's fees, costs and such other
relief as the Court may deem appropriate.
Respectfully submitted,
~
I.D.I 23786
845 Sir Thomas Court
Suite 19
Harrisburg, PA 17109
(717) 541-4400
. .
5
VERIFICATION
I, Larry Patterson, have reviewed the aforegoing
Responses to New Matter and do hereby confirm that the statements
are true and correct to the best of my knowledge, information, and
belief.
I make this affirmation with the knowledge that I am
subject to the provisions of 18 pa C,S. section 4904 regarding
false swearing of information to authorities.
I--
PATTERSON
Dated
(p-/~ -95
CERTIF~CATE OF SERVICE
I, Don Bailey, hereby certify that I am on this day serving a
copy of the foregoing P~aintiff's Answer to New Matter and
Counterclaim upon the person (s) and in the manner indicated below,
service by First-Class Mail, Postage Prepaid, and Addressed as
Follows:
Thomas A. French, Esquire
Jennifer M. McHugh, Esquire
Rhoads & Sinon
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108
Don ailey
ID'23786
845 Sir Thomas Court
Suite 9
Harrisburg, PA 17109
717-541-4400
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LARRY PAftBRSOR ARD LARRY
P~BRSOR t/d/b/a L.B.
PAftBRSOR CONSTRUCTIOR co.,
Plaintiff
I IR THB COURT OF COIOIOR PLBAS
I OF CllJIBBRLAIID COUllTY, PA.
I
I CIVIL ACTION - LAW
I
I RO, 95-1772
I
I
I
I
I JURY TRIAL DBHARDBD
v.
L.B. SMITH, IRC.,
DefendllDt
PRABCIPB FOR
BHTRY OF APPBARAHCB
TO THE PROTHONORARY:
Kindly enter the appearance of Chris L. Korn, Esquire on
behalf of plaintiffs, in the above captioned matter.
Respectfully submitted,
a/~~
Date:
t, ,(1. 97
Chris L. Korn, Esquire
PA ID' 65714
3540 N. Progress 'Ave.
Suite 209
Harrisburg, PA 17110
(717) 541-4400
LARRY PATURSOII ABJ) LARRY I III THE COURT or CONNOR PLEAS
PATTERSOR t/d/b/a L.E. I or CUMBBRLIUID COURTY, PA.
PATTERSOR CORSTRUCTIOII co., I
I CIVIL ACTIOR - LAM
Plaintiff I
I RO. 95-1772
v. I
I
L.B. SKITH, IRC., I
I
Defendant: I JURY TRIAL DBMARDBD
BRTRY or APPBARAlfCB
TO THE PROTHONOTARY:
Kindly enter the appearance of Chris L. Korn, Esquire on
behalf of plaintiffs in the above captioned matter.
Respectfully submitted,
cL ;;Z.;?
-
Chris L. Korn, Bsquire
PA ID' 65714
3540 N. Progress Ave.
Suite 209
Harrisburg, PA 17110
(717) 541-4400
Date:
~.9,97
, .
C!RTIrICAT! or S!RVIC!
I, Chris Korn, hereby certify that I am on this day serving a
copy of the foregoing Praecipe for Bntry of Appearance and Bntry of
Appearance upon the person (s) and in the manner indicated below,
service by First-Class Mail, Postage Prepaid, and Addressed as
Follows:
Thomas A. French, Bsquire
Rhoads & Sinon
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108
~/~
Chris L. Korn
ID.65714
3540 N. Progress Ave.
Suite 209
Harrisburg, PA 17110
717-541-4400
DA'l'BD:
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