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QUALITY BUILDERS WARRANTY
CORPORATION
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLANO COUNTY. PENNSYLVANIA
Defendants
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DIVERSIFIED DATA SYSTEMS. INC.
AND LUTHER SCHAFFER
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the
claims set forth in the following pages, you must take action within twenty
(20) days after this Complaint and Notice are served. by entering a written
appearance personally or by attorney and filing in writing with the Court
your defenses or objections to the claims set forth against you. You are
warned that if you fai 1 to do so the case may proceed wi thout 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 FINO OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
4th Floor. Cumberland County Courthouse
Carlisle. PA 17013
(7l7) 240-6200
QUALITY BUILDERS WARRANTY CORPORATION IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY. PENNSYLVANIA
v.
DIVERSIFIED DATA SYSTEMS, INC,
AND LUTHER SCHAFFER
Defendants
.
.
COMPLAINT
AND NOW, this 1st day of December. 1995. comes the Plaintiff. Quality
Builders Warranty Corporation. by and through its Attorney, John A. Gill,
Esquire. and files the within Complaint and avers in support hereof the
following:
1. Plaintiff is Quality Builders Warranty Corporation (QBW) which is a
Pennsylvania corporation and maintains a mailing address at P.O. Box 271.
Camp Hill. Cumberland County. Pennsylvania.
2. Defendant. Diversified Data Systems. Inc.. (Diversified) is a
Pennsylvania corporation which maintains its principal place of business at
850 Wesley Drive. Mechanicsburg. Cumberland County. Pennsylvania 17055.
3. Defendant. Luther Schaffer. is an adult individual who is employed by
Diversified and who's work address is 850 Wesley Drive. Mechanicsburg.
Cumberland County. Pennsylvania 17055,
4. At all times relevant hereto. Diversified was in the business of
personal computer-related services. including hardware sales and
maintenance. the installation and support of local area networks. software
training and custom software programming to meet its customer's specialized
needs.
COUNT ONE
5. At all times relevant hereto. Defendant Schaffer was an employee of
Defendant, Diversified.
6. QBH incorporates herein by reference Paragraphs 1-5 of the within
Complaint.
7. On November 3, 1994, Defendant, Di versifi ed. performed a computer
network overview and developed recommendations on network storage capacity.
data security and office productivity.
B. As a result of the recommendations, on January IB, 1995, QBH contracted
with Defendant, Diversified, wherein Defendant Diversified a9reed to upgrade
QBH's hard drive on its existin9 server and to increase storage capacity as
recommended by Diversified, A true and correct copy of the agreement is
attached hereto, incorporated herein and marked as Exhibit A,
9. On January 26, 1995 QBH reviewed options with Defendant, Diversified,
for a backup server. QBH's concern was if there was a fire or a catastrophe
on site which would damage the information system that an off site backup
would be available for QBW to continue its operations,
10. On January 27, 1995, QBH received a quotation from Defendant
Diversified for the purchase of an additional server which would function as
an on-site server and the existin9 server would be taken off site to be used
as a back up in the event of a catastrophe. A true and correct copy of said
quote is attached hereto, incorporated herein and marked as Exhibit B.
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11. On January 3D, 1995, Defendant Diversifed provided QBW with a revised
quotation to make the existin9 server identical with the new server which
was being purchased from Diversified. A true and correct copy of the
revised quotation is attached hereto, incorporated herein and marked as
Exhibit C.
12. On February 3. 1995. QBW received an additional quotation for an
additional server with a new backup system installed. A true and correct
copy of said quotation is attached hereto, incorporated herein and marked as
Exhibit D.
13. On February 16. 1995, QBW entered into a contract wi th Defendant
Diversified for the purchase of the new server with the new backup system.
A true and correct copy of the purchase order is attached hereto,
incorporated herein and marked as Exhibit E. The purchase price for the
hardware was $6,035.64.
14. On AprilS, 1995, Diversified upgraded QBW's existing server to match
the specifications of the new server.
15. On April 7, 1995. DDS installed the new server with backup at QBW's
location, At time of installation, DDS indicated that they did not include
all items to accomplish the stated purpose. Diversified had to order
another back up and then return to complete the installation process. Once
accomplished, according to Diversified. QBW inquired as to whether the now
to be off site server was exactly the same as the new server and, in an
emergency, if the off site server would contain all backup information and
restore. Upon questioning, Diversified realized that the backup server did
not have the new backup system in it, an item integral to the purpose of the
engagement of Diversified.
16. On April 24, 1995, QBW received and approved a quote from Diversified
for the backup system for the off site server. A true and correct of the
quote is attached hereto, incorporated herein and marked as Exhibit F.
Additional cost was $l,lBl.90.
17. On May 4, 1995, Diversified installed the backup on the old server.
After installation Defendant Schaffer represented that he tested everythin9
and the backup was functioning properly.
18. On August 17, 1995, QBW requested Diversified to return to its place of
business to simulate a disaster recovery "fire drill" so that QBW could
observe and formulate the written instructions for the off site backup. QBW
brought in the off site server and Defendant Schaffer attempted to restore
the information. The drill did not work. Diversified explained the network
card in the old server was not identical to the new one. A new network card
had to be ordered, a fact Diversified should have known and advised QBW.
19. On August 18, 1995, Diversified returned with the new network card and
installed it in the backup server. The software would not operate properly.
Diversified could not resolve the problem and took the server to their shop.
20. On August 31, 1995, Diversified returned the backup server to QBW. The
backup would still not work. Diversified re-confi gured both backup and
primary servers and represented that the backup system was now working.
21. On September 7, 1995, another "fire drill" was simulated with
Diversified present and Diversified trained QBW employees on the backup
procedures. Defendant Schaffer advised QBW that the restore was successful
and the backup system server was working.
2'. On October 5. 1995. QBW attempted a fire drill using the instructions
provided by Diversified, The backup server locked up and the monitor on the
computer indicated error messages regarding buffers and "bottle necking" on
the server. Diversified was contacted and Defendant Schaffer informed QBW
that the message was nothing to worry about and told QBW simply to reboot
the server and PC.
23. In Mid-October. 1995. QBW requested that Defendant Diversified document
in writing that the back up system was functioning properly. Diversified
said a letter would be forthcoming but QBW has never received such a
document.
24. On November 9, 1995. QBW, now lacking confidence in Diversified's
advi ce, engaged an alternate computer consul tant to rev! ew the backup and
fire drill procedures. When the backup was simulated. the computer once
again locked up and the server gave error messages, The new computer
consultant identified the problem, that being that the reserve buffers were
set improperly and were causing bottle neck problems when restoring files.
25. The new computer consultant advised that this was a critical problem
and obvi ous from the error message and that the restore was not successful
nor could it ever have been successful in the past as represented by
Diversified and Defendant Schaffer, The problem was corrected by the new
computer consultant and a new restore was performed successfully and without
errors.
26. On the basis of the above. Diversified breached its express warranties
to QBW that the computer backup would accomplish the purpose intended and
that it was working properly at the time they tested it.
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27. As a result of the above. Diversified breached its implied warranties
of merchantability and fitness for a particular purpose in that the backup
did not work nor could it have worked as Diversified and Defendant Schaffer
represented.
28. By reason of the foregoing Diversified and Defendant Schaffer have
engaged in fraudulent conduct which created a likelihood of confusion or
misunderstanding and QBW is entitled to damages under Pennsylvania Unfair
Trade Practices and Consumer Protection Law 73 P.S. Section 201-1 et seq.
Both Defendants knew that the back up system was not functioning properly
when they represented it to be.
29. As the result of Diversified's and Defendant Schaffer's misadvice. QBW
expended additional monies for hardware which Diversified represented they
would not need and in addition. expended approximately fifty man hours in
identifying the problem. Additionally, QBW incurred extra expenses in
engaging another computer consultant. QBW's total liquidated damages are
$12.000.00.
WHEREFORE. Pl ai ntiff. Quality Builders Warranty Corporati on. demands
judgment agai nst Defendants. joi ntly and severally. in a sum in excess of
$20.000.00. treble damages. punitive damages. reasonable attorney's fees and
costs of suit.
c..
A. Gill. Esquire
rney 1.0. 141532
75 Utley Drive
Camp Hill. PA 17011
(717) 730-9789
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VERIFICATION
I hereby affirm that the following facts are correct:
Joseph M. Olshefski appears for the Plaintiffs and represents that he
is authorized to make this Verification on behalf of them; the
attached Complaint is based upon information which I have furnished to
my counsel and Information which has been gathered by my counsel. The
language of the Complaint is that of counsel and not of me. I have
read the Complaint and to the extent that the Complaint is based upon
information which I have given to my counsel, is true and correct to
the best of my knowledge, information. and belief. To the extent that
the contents of the Complaint is that of counsel, I have relied upon
counsel in making this Verification. I hereby acknowledge that the
facts set forth in the aforesaid Complaint is made sUbject to the
penalties of 18 Pat C.S, 54904 relating to unsworn falsification to
authorl ti es.
sep ,
President
Quality Builders Warranty Corp.
Date:-'Z...,-"f ~
EXHIBIT A
**************. -coHM.JOURNAL- &................... DATE FEB-D6-199! ..... TIME 13144 ..* P.01
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ST~ToFE8-D6 13136
END-FEB-D6 13144
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EXHIBIT B
I r) r )~ DIVERSIFIED
t.:.J..:.J DATA SYSTEMS, INC.
B~O WESLEY ORIVE ' MECHANICSBURG, PA 1 70~!l
January 27. 1995
Ms. Wendy Thomlinson
Operations Manager
Quality Builders Warranty
75 Utley Drive
Camp Hill, PA 17011
Dear Wendy:
As requested, here is a quotation for a backup server that is configured similarly to the
server presently in use, after it is upgraded.
We continue to recommend the implementation of the following to secure the data on
your network, to eliminate downtime, and to reduce downtime in the event of a hardware
failure:
. Uninterruptible Power Supply
. Movement of the server so that the reset and power on/off
buttons are less prone to accidental depression
. Improved Tape Backupffape Rotation System
. Pssswording & Other NelWare Security Measures
. Off-site storage of a full backup tape
. Vinca Standby Server
If you have any questions regarding the enclosed. please give me a call at 795-7000,
Thank you again for the opponunity to be of service to Quality Builders Warranty
Corporation,
David S, Lohr
717.79~.7CXXl, 1.eOO872.JC20. FAX 717.795.7973
· SDUlUCSt a\'allable from our dislributor: cost of Ihls component Is approx, $275,
Includes assembly and bum-in, dell\'ery to clienl sile; docs nol include InsinUation of NoveU Netware,
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Backup Server
DDSlSunTek 486DXlZ-66
Intel 486DXl2-66
2.4GB SCSI hard dri\'e
530MB SCSI hard dri\'e'
Local Bus Video
DOS Operating System
Quality Builders Warranty Corp,
Backup Server
32MB RAM
3/4 tower case
3-1/2",5 1/4" noppy drive
(2) 3COM network card
Mono monitor
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Backup Server
DDSlSunTek 4lkIDX/Z-/'i/i
tntcl 411GDX/2-6G
\,2GB SCSI hard drive
530MB SCSI hard drive.
Local Bus Video
DOS Opuatin; System
Quality Builders Warranty Corp,
Backup Server
IGMB RAM
3/4 tOWCf case
3.112",5 114' floppy drive
(2) 300M nc\work card
Mono monitor
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. Smollm avallabl,from our d/llrlburor: '011 qflhll ,0mpon,nll.<appMlr, $27J
Incluclcs assembly and burn-in. dcUvcry 10 client lite; docs notlnelude Installalion orNlMlI NelWlle,
lnstaUation of addlllonal 4MB RAM rrom present SClVer is recommended, and will be tranSferred at no
additional eharl.'C'
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EXHIBIT C
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DIVERSIFIED DATA SYSTEMS, INC
850 Wesley Drive
Mechanlcsburg, PA 17055
Tel. 717-795-7000 Fax 717.795-7973
- Fax Cover Sheet -
Date:
Pagel:
From:
To:
fL'CNo,:
Subject:
Wendy
717.737-4288
Server RAM &. Hard Disk
1/30"5
"-
David S. Lohr
Wendy,
.
If we go 10 a 1.2GB hard disk, the cosl including the RAM required would be the same as
the 2,40B drive by itself(not including the RAM), so the 12!A! cosl of going to 1.2GB
rather than 2,408 would be around $1,500 less,
We would probably need to go to 20MB of RAM in your server .. we would remove
4MB of RAM to make room for the additional 16MB, giving you a total of 20MB, The
4MB removed from the server could either be used to upgrade a workstation, or you
eould put 20MB in a backup server unit, which would be our suggestion,
Purchase of (,2GB SCSI hard disk drive, installed in pre.~ent server.
Reconfib'Ure system so that system files are on existing 250MB
SCSI drive and user files are on new drive. Remove
4MB RAM and install 16MB in open slots, resulting in a total
of 20MB ofserver RAM. Reconfigure existing tape b8l:kup
software as appropriate.
Total hardware & sm';cu
S J,545
On the following page, I have requoled a backup server with the 1.2GB, 20MB
configuration,
Please give me a call if you have any questionsl
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DIVERSIFIED DATA SYSTEMS, INC
850 Wesley Drive
Mechanicsburg, PA 17055
Tel. 717.795-7000 Fax 717-795-7973
- Fax Cover Sheet -
Date:
PIlIes:
From:
1J3195
2
David S, Lohr
To:
Fax No,:
Subject:
Wendy
717.737.4288
Sales Order 3056 Revision
Wendy,
OK 1 think] have it now. . .
We CAN use our outstanding sales order 30S6:
]. We will add I 1.2GB hard drive to your present server, rather than a 2,4G8,
2, We will remove 4MB RAM from your server, and add 16MB of RAM in its
place.
3. The 4MB removed from your present server cannot be used in a new server, but
can be used to upgrade one of your workstations.
A!J the total amount of chis order remains S 2697.70 with tax, no changes in the amounts
are necessary.
1 have also enclosed a quotation as discussed for the new fileserver based on the faster
486DXl2-66 processor, The price is higher than previously quoted for two reasons:
I. We must add .RAM rather than use RAM from your old server, and
2. Additional labor is required to set it up as a server in a production environment
than on the previous quote, which provided the raw hardware only.
I have also shown as options the CD-ROM drive and the backup tape unit as discussed,
By purchasing these items simultaneously, you will minimize system downtime and reduce
total labor costS associated with the installation
Please initial the areas on Sales Order 30S6 that I revised and retum to me via fax at 795.
7973, lfyou have any questions. please give me a call at 795-7000.
Thank you again for your consideration
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Quality Builders Warranty Corp,
New Server
New Server
DDSISu.Tek 416DX1W6
Inlcl.86DXI2~
I.2OB SCSt hard drive
530MB SCSI hard drive.
LocIJ Bus Video
DOS OpcrAUnl System
20MB RAM
3/4 tower cue
3.112", S 114" noppy cub'!:
(2) 3COM IIC\wor\( c:ud
MollO monllor
· SmDllr," /II'tJilabl.flUm uur dutrlbutar: ell," 'if thIS eampon.nl I" app,ar, 521',
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S 3,149
llIcludca Il1CInbly and bum-in, delivery 10 clienl sile; instaJJation or No.cll Nctwarc, conllguration of
drives so lhal programs rC1ldc on lhe smaller disk and user dala resides on the l.2OB disk.
Data Security
SlrumlnH TiDe Bac:kuD
Scrvcr-b1$Cd internal Wangtclc 2GB DAT backup unil conficuml wilh lodusll)'.
leading CheycnncARCICMl software, System can be conllgUfCd 10 permil
aulomallc backups (numuJlly dunng .v.nlng huu',tj. ARCSCl'l'c oll'crs Cull
IUlOmallon for dala managemcnl utilizing tape lOlallon, disk sroonung. and
disaller RCOYcry CCIIluteS.
Intcrnal2GB OAT. , , . " 5 Z,/JIIS
CD-ROM
Doublc-speed CO.ROM player, Inel, installation
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IAl.U ORDER NO: 3056
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EXHIBIT E
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DIVERSIFIED
DATA SYSTEMS, INC.
SALES ORDeR NO: :1:1:: 3
SALES AGREEMENT
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No. Qty Number Product Delcrh,tion Price ..L Total
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8 ~ :J~", 1tZ7"..I.,Lk. '1f'T'~" Ofd./o.f
9 I 1h1V7t!'c- ~(;S,; ~,~~
10 I W/lrI~M'7 047 TAI'~ /Au,..!' 11",7
11 3';0.. 2.&.~ /.-. \ 1..,,-rJ
_"t...
12 M(!$6(."d- ""- ...'6t- -<'-Ff:r'..t.~
13 ,. l"r::..,,~ a.,..",,~ 7". ~,,/.
14 p~ ... .. T
~ ~ /Ir_M<u
16 - S'(.J'f'6M 1 {
.
I :f~o W,'TII ~ F,oIahl
DI" Aoq"'ocI: CuI1.P,O,' TI"..,
(Lk.AI'c.t ".........,:1 Dt'->~ SUb TOIII $l. ') f.~ -
PA Sol.. Ta 3'11. 'Of
TOTAl c,o$S'. tt'
Warranttn for the abov, ""rch,ndta. .,. CUllom" Clrry.ln Wlllardl" u ptOYiCftd by !he ';J ""P. ...
manufacture,. The Cultomt' qt... Co purcha,. ."d DOS. Inc:. .grln to.en the atMeet I.eoo Do_II
dUClib.d above in "cOIdlnee with the terms and c.ondtUons act lorth abcrfl and on me IIY".,
tld. h...... TIll.......... eoknooolodgeo Ill.. . hili rud 1Il/. Ag'oomont, und."tendo iI. end BAlANCE 3C13$'. '1
agrt.. to all.~h terml and condition.. Thl. ~gr"ment I, I\lbject to linlllCclptantt by ODS
AI II Hom. 0Ihc..
Divl!tllKied Dala Systems, Inc.
~~p~
~. /~. '1:(""
8y
Tille
Date
Xi) .;;:i':m::...,',
By
Dale
----
DtJrribuUon: """"e. Accounting G,...". OIde' Entry ~. CustMl.r PtttIf. S".. '''e GOld. S"ts R.P/eStI'l"'W
- tL-t SW3~SXS v~va a3IlIS~3AIa 6S:~t S6/9t/zO
EXHIBIT F
.','
04/24/95 09:50
STATION
(123)456-7890
p, 002
'l!)!)~
DIVERSIFIED
DATA SYSTEMS, INC.
SALES ORDER NO: 3137
Sold To
Glo.U
ryt; 1.1 ;,.,r
fOP. Box 1.71 f
Url-v~i, 171\11011
1
"l37 - '2."2..2..
SALES AGREEMENT
1t.t.Q-......ySIllP To
'furl
'131 ,.JA.z.
Wf"Nl)y l(;'""", ~rJS oiJ
T.1. /I
Altn;
Item PI" Unit
No. Qty Numbl' Product Descrlpllon Price TOlsl
1 I !'...l'i\"'~t.... -j1;pf' gA-:-l:...p . '21:rS ""It oJ. ~ 'i::.,
2 'F/ g~.D S1:/."~fl... . IIK.efD
3 .,.,.~ '1.......:.0.1 .
nJGo~t>lfS
4 (:ur-" ""1ln.~ ~I~"'''; ""'......or
Ii
6
7
8
9
10
11
12
13
14
15
DolO Roqlri,od: Cuot, P,O,,, Tef..: FIII.hI
-.'
J\.~ Sub TOil'
ltfp.~o
- PA So'" Tax
-
TOTAL I f ai, qo
Wan.mllt for the abOY. m.r~h.rtd... Ifl Cuatom,r c.rryotn warranti,... prcNidtd by IhI
manuf,ctu'I'. lhe Cultoml' .grot. . and ODS. In, '0"" to .,IIIh, ..~ic.. L... Dooooll
dmriboa obov.ln .ccard.n=e.llm.Oli cond,~on.." fo~h .bOY. .nd on tho ....11.
aide harlot. Th. c,,'tomtr ack IedO" 1M' it II' ".d thia Ag,..ment. understands iI. and BALANCE
agreet to alll~ \elmslnd nditio~ Thd. AUj em'"' '" lUbJtd to finallcceptancl by DOS .
D.
By
Tille
Date
~ ~ .
\. , c...---.e?
C'rvl"~,):~ -;::;:;. ,\ ('l ~J/ ;.
s/2ft7C:;-
DisflilMion: Whtr.. Accounllng GIWn . Otd" Ettrrr ean.ty. Cuslom" Pink. Sa'" F.'. Gold. $'1., R.",.un'atlv.
~R-24-1995 09:53 DOC-IT 95% P,02
".-' .~ ~.
,
SHERIFF'S RETURN - REGULAR
CASE NOI 1995-06873 P
CO""ONWEALTH OF PENNSYLVANIA I
COUNTY OF CU"BERLAND
QUALITY BUILDERS WARRANTY
VS,
DIVERSIFIED DATA SYSTE"S INC
, Sheriff or Deputy Sheriff of
CU"BERLAND County, Pennsylvania, vho being duly svorn according
to lav, says, the vithin CO"PLAINT
upon SCHAFFER LUTHER
defendant, at 1035100 HOURS, on the ~ day of December
19~ at C/O DIVERSIFIED DATA SYSTE"S INC
"ECHANICSBURG. PA 17055
TI"OTHY REITZ
vas served
the
850 WESLEY DRIVE
.CU"BERLAND
County, Pennsylvania, by handing to LUTHER SCHAFFER
a true and attested copy of the CO"PLAINT
together vith NOTICE
and at the same time directing His attention to the contents thereof.
Sheriff's Costs I
Docketing
Service
Affidavit
Surcharge
So ~rp~ ~
7 >.?&;~--'<1- y- 'f!
6.00
.00
.00
2.00 R. Ihomas K11ne, ~her1tt
88.00 JOHN A. GILL . A ----
:1.(.. 1~ 12/07/1995 _ ~ ~/
,.yp ,1J.- by d./t-? Z.L-. ~
"pu~her
Svorn and subscribed to before me
this .:Jo ~ day of !Jt"M't..--
19 9';- A.D,
C)vf' 9x.o~~~~(ar~'
~ day of December
.
SHERIFF'S RETURN - REGULAR
CASE NOI 1995-06873 P
connON WEALTH OF PENNSYLVANIA I
COUNTY OF cunBERLAND
QUALITY BUILDERS WARRANTY
VS.
DIVERSIFIED DATA SYSTEnS INC
TInOTHY REITZ
CUnBERLAND County, Pennsylvania, who
to law, says, the within COnPLAINT
upon DIVERSIFIED DATA SYSTEnS INC
defendant, at 1035100 HOURS, on the
19~ at 850 WESLEY DRIVE
nECHANICSBURG. PA 17055
. Sheriff or Deputy Sheriff of
being duly sworn according
was served
the
.cunBERLAND
County, Pennsylvania, by handing to LUTHER SCHAFFER. SERVICE
nANAGER
a true and attested copy of the conPLAINT
together with NOTICE
and at the same time directing His attention to the contents thereof.
Sheriff's Costsl
Docketing
Service
Affidavit
Surcharge
18.00
6.72
.00
2.00
sO?Jns)l";~ ~'
~.;r'r-~~ ~
-
H. Thomas K11ne, ~her1ff
$2&.72 JOHN A. GILL /1
12107/~~95 ---". . .-At~' l;2-~
,+ .4~.-/L.--, ~
upu er Z"
Sworn and subscribed to before me
this .1c 1>' day of JJk.~
19 () < A, D.
C} 1 9r~:j~ta~~
_,' -< .'1.,,,"'-:""'.:' :",r~ ".'
.
QUALITY BUILDERS :
WARRANTY CORPORATION, :
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 95.6873 Civil Term
v,
DIVERSIFIED DATA
SYSTEMS, INC, and
LUTHER SCHAFFER,
Defendants
DEFENDANTS' PREklMINARY OBJECTIONS
NOW COME Defendants Diversi~ed Data Systems, Inc. and Luther
Schaffer, and, through their attorneys, Mette, Evans & Woodside, do hereby file
these preliminary objections to Plaintiffs complaint, in support of which they aver
as follows:
I. DEMURRER ON BEHALF OF DEFENDANT LUTHER SCHAFFER
1. Plaintiffs complaint includes as a Defendant Luther Schaffer, who is
identified therein as an employee of Defendant Diversified Data Systems, Inc. and
who, according to the allegations of the complaint, was the representative of
Diversified Data Systems in dealing with Plaintiff regarding the items provided to
Plaintiff under the various purchase orders as set forth in the complaint,
2. Plaintiffs complaint seeks recovery for alleged breaches of express and
implied warranties and damages under the Pennsylvania Unfair 'i'rade Practices
and Consumer Protection Law (73 P.S, 0201-1, it WI,).
3. Plaintiffs complaint also seeks, inW: W, punitive damages and
reasonable attorneys' fees.
4. At most, the allegations of the complaint if proven true would place
Defendant Luther Schaffer in the role of an agent contracting on behalf of a
disclosed principle (i.e., Diversified Data Systems, Inc,).
5, An agent is never liable in contract where he was contracting on behalf
of a disclosed principle,
6. Plaintiff has pleaded no facts in its complaint which would support a
cause of action against Defendant Luther Schaffer under its theories of breach of
express or implied warranties or the Pennsylvania Unfair Trade Practices and
Consumer Protection Law.
7. Accordingly, Plaintiffs complaint should be dismissed for failure to state
a cause of action as against Defendant Luther Schaffer,
- 2-
.'''''j''i''~~....
WHEREFORE, Defendant Luther Schaffer respectfully requests this court
to sustain this demurrer and dismiss Plaintifl's complaint with prejudice.
II, DEMURRER ON BEH~F OF QEFENDANT
DIVERSIFIED DATA SYSTEMS. INC.
8. In its complaint, Plaintiff pleads theories of breaches of express and
implied warranties and also seeks damages under the Pennsylvania Unfair Trade
Practices and Consumer Protection Law (73 P.S. ~201-1, .IlllillSl.).
9. It is obvious from the face of the complaint that the transaction between
Plaintiff and Defendant Diversified Data Systems, Inc. was a commercial
transaction between two corporate entities in the nonnal course of business and
therefore does not constitute a consumer transaction governed by the
Pennsylvania Unfair Trade Practices and Consumer Protection Law, which allows
private actions only by "any person who purchases or leases goods or services
primarily for personal, family or household purposes..,"
10, Plaintiff has not and cannot allege that it purchased goods or services
from Defendant Diversified Data Systems, Inc. for "personal, family or household
purposes,"
- 3-
11. Accordingly, the court should dismiss the portion of Plaintiff's
complaint seeking relief pursuant to the Pennsylvania Unfair Trade Practices and
Consumer Protection Law.
12, Plaintiff's complaint seeks punitive damages,
13. Punitive damages are not recoverable in contract actions, and, as stated
above, the Pennsylvania Unfair Trade Practices and Consumer Protection Law
does not apply in the present case,
14, Accordingly, the portion of Plaintiff's complaint seeking treble damages
and punitive damages should be dismissed.
15, Plaintiff's complaint seeks an award of attorneys' fees.
16. Under Pennsylvania law, attorneys' fees are only awarded where
specifically provided for by contract or by statute,
17, The sales orders attached to Plaintiff's complaint contain no agreement
regarding the payment of attorneys' fees.
-4-
18, Plaintif1's claims do not fall within any statute providing for the award
of attorneys' fees.
19. Accordingly, the portion of Plaintif1's complaint seeking an award of
attorneys' fees should be dismissed,
WHEREFORE, Defendant Diversified Data Systems, Inc, respectfully
requests that the portions of Plaintif1's complaint seeking to present claims under
- 6-
the Pennsylvania Unfair Trade Practices and Consumer Protection Law, and for
trouble damages and punitive damages, and for an award of attorneys' fees, be
dismissed with prejudice.
m. MOTION TO STRIKE ON BEHALF OF DEFENDANT
DIVERSIFIED DATA SYSTEMS. INC.
20. The averments of paragraph 8 through 19 above are incorporated
herein by reference as if fully set forth.
21, Plaintif1's claims pursuant to the Pennsylvania Unfair Trade Practices
and Consumer Law, and with regard to treble damages and punitive damages,
and with regard to an award of attorneys' fees are not in accordance with
applicable law and should be stricken from the complaint.
"-' ..-';"\ .".,-."..,,,
;'0__0"_-"_"
22, In addition, Plaintiffs complaint attaches several sales
orders/agreements as exhibits,
23, On each of the sales orders/agreements attached to Plaintiffs
complaint, the following language appears directly above the signatures of the
parties:
"Warranties for the above merchandise are Customer Carry-In
warranties as provided by the manufacturer. The Customer agrees to
purchase and DDS, Inc. agrees to sell the services described above in
accordance with the terms and conditione set forth above and on the
reverse side hereof. The Customer acknowledges that it has read this
Agreement, understands it, and agrees to all such terms and
conditions, This Agreement is subject to final acceptance by DDS at
its Home Office."
24. Plaintiffs complaint does not include the reverse side of the sales
order/agreement form for any of the sales agreements/orders attached to Plaintiffs
complaint.
25. Because Plaintiffs complaint sets forth the claims for breaches of
express and implied warranties, the terms and conditions set forth on the reverse
side of the sales orders/agreements are material to the determination of the issues
in this case,
- 6.
26. Rule 1019(h) of the Pennsylvania Rules of Civil Procedure requires that
where a party bases its claim upon a writing, that such writing be attached as an
exhibit to the complaint.
27. Accordingly, Plaintiff's complaint should be stricken for failure to
comply with rule of court.
WHEREFORE, Defendant Diversified Data Systems, Inc. respectfulIy
requests this court to grant this motion to strike and to strike Plaintiff's complaint
for failure to conform to law and rule of court.
By:
METrE, EVANS & WOODSIDE
')n#~ &
Michael D. Reed, Esquire
Sup. Ct. I. D. #35193
.
3401 North Front Street
P. O. Box 5950
Harrieburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendants
Diversified Data Systems, Inc.
and Luther Schaffer
DATE: December 22, 1995
._-Y.'-.,,-
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon
the persons and in the manner indicated below, which service satisfies the
requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of
same in the United States Mail, Harrisburg, Pennsylvania, with first-class
postage, prepaid, as folIows:
John A. Gill, Esquire
75 Utley Drive
Camp Hill, PA 17011
DATE: December 22, 1995
521192..1
METrE, EVANS & WOODSIDE
Br.~W/P )) If-.t
ichael D. Reed, Esquire
Sup. Ct. I. D. #35193
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendants
Diversified Data Systems, Inc.
and Luther Schaffer
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