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HomeMy WebLinkAbout02-4570NOTICE OF APPEAL COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS JUDICIAL DISTRICT FROM Q- 7 3, OZ DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. a- r{S'7(Jc NOTICE OF APPEAL 4? Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. P.O. Box 1667 9/09/02 CLAIM NO, Mechanics Danko Arlington, Inc. Cv 314' ^'71-02 LT 19 This block will be signed ONLY when this notation is required under Pa R.C.P.J.P. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. Signature of Prothonotary or Deputy 09-3-04 EPA 17055 & Sons, Inc. If appellant was Claimant (see Pa. R.C.P.J.P. No. 1001(6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001(7) inaction before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Danko Arlington, Inc. Enter rule upon Name of appellee(sl (Common Pleas No. n i- q6 12 o _I Tta.... ) within twenty (20) RULE: Tc Danko Arlington, Inc. Name of appelleeW appellee(s) or his attorney or agent (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WI LL BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of mailing. or Date: -, Signature off PrDth notary or Deputy appellee(s), to file a complaint in this appeal entry of judgment of non pros. AOPC 312 -so COURT FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE'*'OF NOTICE 6F APPEAL AND RULE TO FILE COMPLAINT (7his proof of serwcv, musT BE FILED WJTH/N FIVF 15i DAYS AFT£ R aur;I tL? notice ??I,pcal '17e (k ?;?u 4cahlr. Unnesl COMMONWEALTH OF PENNSYLVANIA COUNTY OF AFFIDAVIT: I hereby soveai or ofiir:n that I ,clued ss r a Copy o` the %()I cc of Appeal, Common Pleas No.__.. upon it c D >IRa Just cr desi.i ra Ud t!u rr•n or, (da to of a<n icc)_ ,-, -_ l ) by P'.ISO_ial sue ce by (cart fled) (reysterrtil rna;,? tirndt°i's .rltar t Sri nf,i, l'), and .rum ,hr appr lir, pima. _. 19 ' r -- -- __ -- - _ _ _ - hY D, n r tai Se h r u i f rd t' y str i d) n < 101 -. a w1e,'s r,ceyrt ai'ached hereta_ and fwthrr that I ,rived The Rule to Flea Compia; n; accompany nq the abo,e Notice of AI,Peal uper [he' aplw ?')f'W .r. whom thr R. c wa,'lddlewd on __ __ 19 mail, sender's rect.rPt attached herejp, by ptjn' r al ,c, vice by (c •,t l edl Ire,u,.urrdl SORN (AFFIRMED) AND 5UBSCRIBE6BEFORF-ME- iHIS--__-_---- _-_ DAY OF 19.___._. S?gn,rtuceo r r,•a?(tala?? whom r(8ri rv r ,?zJr/e -_ Titleoluff" al My commise,on exoireS 19 h 5 S t rime <r, utfianr 9 rte- G G N cn 1'TI 'O ro w ro N N O NiM u ?G COMMONWEALTH OF PENN` VANIA COUNTY OF: CUMBERLAND Mag. Dist. No. 09-3-04 DJ Name: Hon. THOMAS A. PLACEY Addf855 104 S. SPORTING HILL RD MECHANICSBURG, PA Telephone: (717 ) 761-8230 17050 ATTORNEY DEF PRIVATE : DAVID A. FITZSIMONS, ESQ. 3401 N. FRONT ST. P.O. BOX 5950 HARRISBURG, PA 17110-0950 a THIS IS TO NOTIFY YOU THAT: Judgment: NOTICE ( CIVIDL CASE TRANSCRIPT PLAINTIFF: NAME and ADDRESS rDAN&O ARLINGTON, INC. 4800 E. WABASH AVE. BALTIMORE, MD 21215 L J Vs. DEFENDANT: NAME and ADDRESS ,, rCALABRESE & SONS,INC. P.O. BOX 1667 MECHANICSBURG, PA 17055 L J DocketNo.: CV-0000271-02 Date Filed: 5/23/02 a Judgment was entered for: (Name) nAWXQ ARL INGTON INC. ® cAT.ABRE-SE Judgment was entered against: (Name) r- SONS TNC- in the amount of $ 6 r,91 _2 . on: (Date of Judgment) 91091 02 ? Defendants are jointly and severally liable. (Date & Time) Damages will be assessed on: Amount of Judgment nt Costs d J $ 6. $ 469.72 121.50 gme u t d $ .00 gmen Interest on Ju $ .00 ? This case dismissed without prejudice. Attorney Fees $ 6 .591.22 Total ? Amount of Judgment Subject to f 1996 $ 5 A Post Judgment Credits $ o ct Attachment/ Post Judgment Costs $ ? Levy is stayed for days or ? generally stayed. Certified Judgment Total $ ? Objection to levy has been filed and hearing will be held : Date: Place: Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF,JUDGMENtIBY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMAN PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS N E OF JUDG T/ NS RIPT FORM"WITH YOUR NOTICE.OF. APPEAL. District Justice Date I certify that this is a true a corlrect.copy Of the record of the p oceedings containing the„ judgment. ..Date District Justice r My commission expires first Monday of January, 2004 SEAL AOPC 315-99 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT_ (This proof of sFrOcu PvfUST RE FILED VVITNJN FIVE /5) CLAYS AFTER fling the 000Ce of appeal. Check applirabk? hoxvs) COMMONWEALTH OF PENNSYLVANIA COUNTY OF_ ;ss . AFFIDAVIT: I hereby swear or affirm that I served , ?pt??' Ole Distnct Just'rr+ dF Si??leted .hcla s (n) a copy )? th; Nonce e o Apj)00r _ G (.,air, nf..f,vr,e) ? III l, Cuniinoo P?tlus No- 73?, by pet'o11a? sere Cry , ny tfe?t itedl (WojIStoicc mint ?..nlrt'; l? [cam Lkr??,.?C? on ,E [ .?? , ?t tc "?er rt?, anrf _ i c. i *'t -W a?tpi iI E' (rt unp) - by personal ?et vce h certified (irxlistewd) maii,sunder's rece pt talfache.1 he'vtb. an(] further that I ,raved the Rule to rife a Com pia-m accompany ng the ahove' Notice of Appeal upon the app 'et,k? to whom the Rule was addressed on 79 -- by Fmsnnal service fly {cant i;ei+t ( q?.tt ?rr11 mail; sender's-rrsceipt attached herGSO: SVI/ORN ( r FLPVIEfD)__ VA SUBSCRIBED BEFO _ E ??Q'_-? 4.- TH 1$?AA `rS'??*=DAY OF` _... _ -. 1 - - _ - - rrarurr of atJian r' je in My commission i xnGtr ; on___- - r c--- ¢ y. -rj zJ t rn ¦ Complete items 1, 2, and 3. Also complete Item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: DANKO ARLINGTON INC 4800 EAST WABASH AVENUE BALTIMORE MD 21215 A. Received by (Please Print CI at of Delivery Oft 6 C. Signature X ? Agent ? Addressee D. Is delivery ad ress different from item 17 ? Yes If YES, ante delivery address below: ? No 3. Service Type *ertified Mail ? Express Mail ? Registered ? Retum Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number (Copy from service label) 7001 1940 0002 5051 9202 PS Form 3811, .luiy 1999 Domestic Return Receipt 102595-00-M-0952 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, DANKO ARLINGTON, INC., Appellee/Plaintiff VS. CALABRESE & SONS, INC., Apellant/Defendant PENNSYLVANIA CASE NUMBER CIV-024570 DOCKET NUMBER NOTICE YOUHAVE BEENSUED 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 an attorney, and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. If you need legal advice you may contact; Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17103 (717) 249-3166 OR PA Lawyer Referral Service PO Box 1086 Harrisburg, PA 17100 PA Residents 1-800-692-7373 Out-of-State (717) 238-6715 AMERICAN WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, DANKO ARLINGTON, INC., Appellee/Plaintiff VS. CALABRESE & SONS, INC., Apellant/Defendant PENNSYLVANIA CASE NUMBER CIV-02-4570 DOCKET NUMBER COMPLAINT 1. Danko Arlington, Incorporated, (Appellee, Plaintiff), is a corporation, duly registered with the Maryland State Department, doing business at 4800 East Wabash Avenue, Baltimore, Maryland, 21215-5583. 2. Calabrese & Sons, Incorporated, (Appellant, Defendant), is a corporation doing business in Pennsylvania with an address of P.O. Box 1667, 406 Brandy Lane, Mechanicsburg, Pennsylvania, 17055. 3. This Complaint is filed in response to Defendant's appeal of District Justice Thomas A. Placey's award to Plaintiff in the amount of Six-thousand, Five-hundred, Ninety-one dollars and Twenty-two cents, ($6,591.22), whereby District Justice Placey found Defendant was not entitled to pass on late costs/penalties incurred by Defendant to Plaintiff without prior notice or agreement. 4. On or about March 17, 2000 Defendant was awarded a contract from the Department of Defense, (DOD), regarding the manufacture of replacement parts. 5. On or about May 3, 2000, Plaintiff was given a written purchase order #9152, by Defendant to manufacture 48 castings, Item II, Part Number, 11642123, at a cost to Defendant of Ten-thousand, Nine-hundred, Forty-four dollars, ($10, 944.00). (Plaintiffs Exhibit "Al'). 6. Because of complexities inherent in the manufacturing process, Plaintiff delivered the castings on or about February 23, 2001, which was, according to Defendant, five months late. 7. On February 23, 2001, Plaintiff invoiced Defendant, Invoice #3823, at terms of 30 days net, for the contracted cost of Ten-thousand, Nine-hundred, Forty-four dollar, ($10,944.00). (Plaintiff's Exhibit `B"). 8. In response to Plaintiff s Invoice #3823, Defendant sent Plaintiff a check, #014284, dated May 3, 2002, in the amount of Four-thousand, Four-Hundred, Seventy-four dollars and Twenty-eight cents, ($4,474.28). Said check reflects Defendant paid Plaintiff Six- thousand, Four-hundred, Sixty-nine dollars and Seventy-two cents, ($6,469.72), less than what Plaintiff quoted Defendant on April 27, 2000, and what Defendant's Purchase Order of May 3, 2000 reflects. 9. In two documents titled "AMENDMENT OF SOLICITATION /MODIFICATION OF CONTRACT," Defendant requested, and was granted a modification of their contract with DOD, specifically, a delayed delivery date in return for a decrease in the price DOD would pay for the items promised. (Plaintiff s Exhibit "C"). 10. The documents mentioned above were signed on October 2, 2000, by J.A. Calabrese, CEO of Calabrese & Sons, Defendant in this matter. Said documents reflect Calabrese & Sons, would receive Six-thousand, Four-hundred, Sixty-nine dollars and Seventy-two cents, ($6,469.72), less than their original bid in return for the DOD's extended delivery date. 11. Despite having the above knowledge, Defendant did not inform Plaintiff of their amended agreement with DOD nor that Defendant's contract was a DOD contract, and as such, subject to Federal Acquisition Regulation Standards. 12. Delivery of Plaintiff s goods to Defendant was done in four installments. 13. The first three deliveries were accepted and duly paid for in full by Defendant, although in an untimely manner, despite Defendant's knowledge that said deliveries were late, and therefore, production of the fourth delivery would also be late. 14. On the front side of Plaintiffs quotation form #8400, dated April 27, 2000, to Defendant, it is clearly stated "The above quotation subject to conditions of sale noted on reverse side." (Plaintiff s Exhibit "D"). 15. On the reverse side of Plaintiff s above-mentioned quotation, condition #11 of General Terms and Conditions clearly states, "Seller shall have no liability for delays caused by strikes...., government regulations, ...., or other causes beyond Seller's control. (Plaintiffs Exhibit "D"). 16. Also, on the reverse side of Plaintiffs above-mentioned quotation, condition #11 of General Terms and Conditions clearly states, "Seller has no liability for any consequential damages under any circumstances or resulting from any cause." 17. Despite Plaintiff's efforts and demands to Defendant to pay Plaintiff the debt owed them, Defendant failed, and continues to fail to pay what is now a debt of Six-thousand, Five-hundred, Ninety-one dollars and Twenty-two cents. ($6,591.22). WHEREFORE, plaintiff demands judgment against Defendant in the amount of Six-thousand, Five-hundred, Ninety-one dollars and Twenty-two cents., ($6,591.22), plus regular interest as allowed by statute, post judgement interest, that is from September 9 b, 2002, the date of District Magistrate Placey's original decision, reasonable attorneys fees, and Court costs. spectfully submitted, James J. Woodworth, Esquire Attorney for Appellant/Plaintiff Attorney I.D. #81343 209 West Lackawanna Ave. Olyphant, PA 18447 p an ko rdngfon, SPECIALISTS IN PATTERNMAKING NONFERROUS CASTINGS MACHINING MANUFACTURING 1 n C. 4800 E. WABASH AVENUE • BALTIMORE, MD 21215-5583 • (410) 664-8930 FAX • (410) 664-0891 VERIFICATION I, JOHN DAVID DANKO, verify that as President of Danko Arlington, Inc., am authorized to make this Verification on behalf of the Plaintiff; and that the averments of fact in the foregoing Complaint are true and correct to the best of my knowledge, information and belief, and understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: Oc a e O , 200 2 / JOHN D. DANKO President EMAIL: sales0dankoarlington.com • WEB: www.dankoarlington.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DANKO ARLINGTON, INC., ) Appellee/Plaintiff ) vs. ) CALABRESE & SONS, INC., ) Apellant/Defendant ) CASE NUMBER CIV-02-4570 DOCKET NUMBER AFFIDAVIT OF SERVICE By signing below, I, James J. Woodworth, Esquire, do certify that a true and correct copy of Plaintiff's Complaint regarding the above matter was served upon Defendant's counsel, Mr. David A. Fitzsimons, by depositing same in the U.S. Mail, Postage prepaid, Certified Mail, Return Receipt Requested, and addressed as follows: David A Fitzsimons, Esquire C/o Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110 James J. Woodworth, Esquire Attorney for Appellant/Plaintiff Attorney I.D. #81343 209 West Lackawanna Ave. Olyphant, PA 18447 FAY pip gux 1667 4013 Brandy Lane Mechanicsbwg, PA 17055 J 717 765 4771 Precision Machine Products V DANKO ARLINGTON, INC. E 4800 E. WABASH AVE. N e BALTIMORE, MD 21215-5583 D O R _ e 10 4/28/00 48 EA 1 AT141?.. 1 EA APA/CHEAPEST WAY 4/00 S H 1 e SAME AS ABOVE P T . O ITEM 1 HOUSING, FAN, RAW CASTING, P/N 10935540 REV.P 0&-'It TOOLING TOOLING. H065I11G, RAW CASTING, P/N 11642123 =V.E PER YOUR QUOTE 8400 DTD 4/27/00 MATL. ASTM-B26 355.0-T71 ALL APPLICABLE DWG NOTES APPLY P.O. NO. 9152 JOB NO. 7900 Thee numbers must appear on all correspondence, invoices, sh4WkV papers & packwm all 3 200- 65. 00 EA 840.00 228.00 BA 66970.00 JOB NUMBER SHOWN IN UPPER RIGHT HAND CORNER MUST APPEAR ON ALL We will comply with all provisions of Executive Order 10925 CaNdNese+ of Match 6, 1961. and of the rules. regulations, and relevant orders of the president's Committee on Equal Employment Op- BY portunity created thereby. ORIGINAL PURCHASE ORDER 377? anko dington, Inc. SOLD TO CALABRESE & SONS PO BOX 1667 406 BRANDY LANE MECHANICSBURG, PA 17055 NO. 4800 East WabashAvanw • Balti mm Maryland 1111&5583 1 SHIP VIA PURCHASE ORDER NO. PO DATE 9152 05/01/2000 ITEM OUAN PART NUMBER 48 11642123 1 1 THIS SHIPMENT IS SHIP TO SAME MVOICE 3823 (410) 664893 (41016640891 TERMS SHIPPED INVOICED NET 30102/23J2001102123/2001 WO # DEPT UNIT 'RICE AMOUNT I 00-116 1 $228.00 $10,944.00 00-116 1 HOUSING CASTING X-RAYS ORDER COMPLETE SHIPMENT INCLUDES CONFORMANCE CERT MATERIAL CERT HEAT TREAT CERT CHEM/PHYS CERT PENETRANT CERT X-RAY REPORT FILM $10,944.00 11 DA EUDUE DUE 03/26/200111 -A 1 I0,q DESCRIPTION AMENDNINT Or SOLI( 2 AM, WrSPV-,Hof FI('A'r 1(b, NO ruuuuz , i. 15SUe0 AY C? "Cause saply canton feel Isso s. broad at.. P.D. box 10766 ' COIARUpS. ON 61210-SOIG IIIITfATINI. C". f oact-mLam 71 - - , rtii 0. K ME ANSI Af)ORE0S Or COMMAC OR 1 • lor,'PAI` 111 CODE PAOI IIODITICATIOW Of Co1rrucT PAGES 1. b?FWTIVR DATE 4. SIMI 15 MONI HowKASE A00. 5 PIMMMIT No. (If see elk. 1iC No. 111`1099354000933 Appl6cable) t907N- . ADI(ININTOM aY (If ether than Itw QcoOj R Dale r0I• SZA-ROaDUM 201 0SmZc STREET. aoiTR set (610) 120-5061 ROAMM. PA loses-6056 street, city, cosely. state Cade, j - CALMItns mini Jive =NC 1F1O MNAMDY 7" .O.e03; Si6 MMcumila soma P> "055-1167 9A. OF - .-ice IUA. NODIFIC)LTIQ at, C111fMcT/cam W. E sro75o-oo-?c-o;» foe. ORTSO (in rlM 13) to , M 8712h 2000 MR 17 ? . wwrea r Mow v Ewa.. -..w .w •?? ?? ___ ___-_-_-___ ?- The Shave IaSnhared melleltatlae !e W send M act 1160th ft ICM Is. The hear bad date L' L IN ax extended. Oflerar rwsr aclamoLete recelOt of this prior to the how and date Specified in the solicitation er am amended. Iv foe of the to) my caxplatltla ttem 0 and 15. Mt copies at tin ameaftemt: (Ill by aetnewtodging receipt at this amendment on each owmitttd; or trl or owwato letter am t44pa¦ latch iemledas a Ire[emamee to the solicitation and MosadPOW aenama. rams Or Toms ACSIOA.fJOnarr To m lMCUVm AT T)S MACE basltaazm MR TNS M=" or amens PRIOR To TIM host AMo 0600 srRCIRm off FAMM IN REJECTION nr YI'AA! area. 11 ben dreae Of slid emutai wL yes denies to a' - an offer already submitted, amts eh00e ry be soft by tmlavrae or letter, provided neck telebeae at letter Moslem tef•rmAo to the aollefutlon and this amendment. MM is received orler to CO. 97[6930 We 13 1133M N RIS I?W r am„ ul A. THIS ctsiNOR atom 12 Ines reoR 1w Irnt 1b6. s. "It Move nbMam coulaacTiaaR Opprmrrfaels dam ear). Yf to Is C. TRIS SO9n.MmRAL AOOSIOR IS m . east 49.40" o. OnNll !!pacify, two of m&cimtt Set fMiLY TO OF 10: /beeib ast'- W a1R astmass a" M" Dl rM 14 as so m s A ,IS =MWr MM W. s UMMM 10 omrLwr Ms ANWMM urM eaAaof9 (am* se cheaper In pwhw attics, N IN Tlsl 16, t01(1IRNr tO SMM M1lMRM v ra 61.10301. rm INfo EkWAVA m to AOIISRM OF. aft R. IMPORTANT: Cvatraeta [ILSSat 1x1 is roWired to etas this dxoMr.t and return ,_j__ tcslsa to fir Issatnp Office. 14. D69CRIPrION UP MS10aQfrAMMCILT1ON (Organized by 0.T section headings, including sotlet4ttar/eeatraM subieet matter where tensible.) lift: 221S-o1-00S-211] The to)lowing CLIN(al ( 106aetitiea ( Ihices (300aliverY Oster have changed to the mutant indicated below: ?,?y O Price id unit Non Obit Old Order Increase Dear*"* New, Order ol?d? DMIJI d? Olvy. love Dlvy. CLIM Price ULM ?+ ? 941 1v Oev_ BX "v- f1x p1D/0Ii2000 03/30/2001 AseopeiMracion for the change. • hulk rood Oacrsame at $27ii_ea applies. AS a resutt, the total amount of this award is changed tree $ll9fQQ,11111 Co $116117.12, csMratONN GO I ENT abaft 17A. ti 158. t as provided herein, ill terns and tendinous of the document reteranced in Chas 9A or 10A, " heretofore tad.-_ resrinm. sntAnMnd amd.-id.tugL force and effect:--.._ _ NAME AM) TITLE Or [IMM (IWW or prinel 1". NAME AND TITLE OF COM MLCM110 OPFICM (7%W or print) • . DATN SIOM I a. uwtTED STATCS ISC Or AISNICA Ik. OATO $ItON(D y --- - T-- - - --- °y Pazvllws COITION talagu" QANtlY ream 10 IRN. 11-031 OM 16W iy GSA Pon 141 CM 0.141 -1 I t•0yTPACT ID COD( page OF AIfENOMPar 01 1101ICIr?rION/MOOI?ICIt?16-11 Or CON711ACr IIL- ?M:R.c J L_ .. AHIN:nIRNTINIY.IW I,'AT I,1r1 I n. I. rl/IxTiVE MTR a. nRW Iti R'I, Tlr lwlM'NA!:): PF.V 5. ?RnIR(T ND (!( POOD03 Nil 34k. 16C NO. TPC99354000933 diplicable) 6. 111m?D sY 0001 _ _ 1147W ADMINISTERED BY (it ether than ICm 6 f7111A Damon luplly cane" celadlls 1990 ¦. broad ft. Dm "u rm P.O. sot 19766 I 101 ref dimm, Ilam »1 IvLu=M. Od 6)216-5!11 (616) 110-9061 m?A,lm. ?.`? I IIRADEWD. PA 19661-6656 4. NAME AND AIN)RI 8 Or cninx case( 1 " CAr huff . MID OCNt 606 u6- pr Lx P.O.11100i X667 mmemmCnammo Pi 1'OOE Avvta 11. n6- ("41491-1577 f a IND.. street, city, ""tY. zi w to. 19A. NODIPICATIOR OF C NTRWr/DRMR No. z no7so-oo-C-?rs7o LOS. DATED 1AW rTlr 13) 2000 XU 17 LJ Tee above ramhored aelielu ion If 200e6910 M Pat forth in tram U. The heor awd date Is in dot Ottecer ors( aehaeele60a r etH6t 40toodoC estedd. of thta MM&,M prior to the beer and date specified in the soliciteti e Of as enmdd. IV one of the lal M cwletip Items a &A If Minittoa; or ICI BY separate l saa _ O"Ane of the Asam`aet; DN M acknowledging receipt of we anaodeent M akeh AtOa)Mf 90c o TO SO kaCQVeo M 2WWrOOO or foul or Or teie6ram,duln'Ml,leee a ret1WMCO to the solicitation W Mand"et Mein, mngbo; Cr m9R PIACR 6ntoormo rah m =CcxrT or amens PRIOR 70 M d99a No pars enCr?tm . 7m. Be b telWM Or fetter, prertdd may ttdfl . a of this Ananwst You d"lra to Chumpe on attar alreay whetttec out olmen >d telgred or letter MOM P"rAace to the ssifcfterice a ? he Ara hi t s araaart, w to wbelw0' paler to 12. Ar,lD,Int n9 ApprO6ur o a s. 9mos4 Sec4 "1 49.0 p m DAte I ra411 row 150 lament are 110C1022 N1Nl4IY?: 370.E 13. THI I'POI APPLIBS ONLY TO MODIFICATIONS OF COMllfk7SION?tS, IT 471E OOITlttJ?CR ORDisR no. lIS Di'.9CRIBED DT ITSN 14 IrJ A. tPQA Client 9saR u n not 10A. . 611AYAR ape fgisetly aathrrttyl 71N t7A1049 an ram in 111111 19 AQ 16NN IN sRt CONIRALT oleo s. TR A409r RAMN awavalstfan deb. ofd loom v 1111113`111111 90 1119MILT 7M A c1lam Rs, {such as chenees In pot" Office. A9r 60118 n nu 14. 91 Mo,- m = ADnNm or r am 43.14]111. x C. IN= pOPNmomamd, is AN 101m (IRO 14Rp11 Wir TO ADI ZW Or, All fill, 47/26/11. 218 612-4 D. once (aWslb type of DAUM And Aatherfityl E. INpORT/1NT: ContraaterClsdat © Is rMirod to s10n this dermsent Mo return - --- I enyl" tow 1Nalna egg la. DeuerrTlot 6-r AllalnNNr/InDInCArrOr (Orgeolsed by WV section Ae!Min natter k*Ore tessible.) ?• (IICI,NIiap sohtetutlm/edntrset rutr, 16M: 2415 01-005-2»3 The foltwinp CLIN(s) 11011adtitIes I Ihiees lElDalivdry Dates twee Changed to the extent iddlceted below: C (,? Old Ihlit ?egllt Old Order Incrwsa DOCraasC Now Order old w 000 1'i1CR OLIt.. uiI Or?LY, by Otv- 011t_ ?• Now Dlvy. T ppaat?e? amat&e 01/Toncei 112001 Am cooeidcratlao for t.hI A to hulk fluid Oeeryuso at f]7o7-6-a Award is , 94tim trues APPII"- AN A rMult, the tstAi alaalalt of tills s u flan.2ti. CONf>NOW 4N isixt 286-2 As Provided herein, alt tents and =alditiods of the doevnent reforenced in Item $A or 1DA. as betrtofore i. rwa)ns mWillDIed sad_ld gull force and efterr - Sri 1"41*44C dF IM.( ?AHF ISO. t',11f7RAl /'ION OP- OP- IGOR -... rapl.AR MITION Unto",, DATE 111=3D 1162. UNITED sTATEs or AMRICA i6C. DATE sf0 10 ( si her of Cootraeti,r Ottleerl lYt 01 Perrone IatAl rrMIND 14 (IIN. Cby hr OVA Proscribed /" Ae 149 IQ NU S3.243 se-, ro' e r CONTINUATION $HEF'C "??? ?°mr of °O°? ` ~to° °°n`L"e run or 8P0750-00-C-N37@/P00003 "1OSS] Z Previvausly establidiad, CL= gdS) wl! M iglWOM is increased by $1707.64, the Monetary toleider off.rad for the delivery schedule sxtw%sien he adeinistrative coot of this Msditicatim. By exocutiee of thin aoraneest the cm--rwuw usivee any and all claim of whatever natwa It my haw arising under this contract prior to the date of this Modiftcaties. The extmelee of delivery Mto dean ass relieve the matsster of any liability for dMges to the oehrfanat resulting free [allure to deliver an a- before the nchednled delivery dote TM awar"not all rights and rsomdLos prodded by Im or under che ooatrect to seems eaeb dosmes as my result free the f we to no deliver. Total Ramat of cmtrattlerder In t h increased M none..../ by V .22U," from $Mda17_ef to jam is. Distribution: ' 51911a/ OCVA niaDlhdl SC10321 Or" COLUMM gMflOY DIV n __..._. _-- - .. _ _- -a 1 Q11?Tlt9d'FFS ` ?r ? rr ?Y?y O - r a, Inca VWAALOTS ton,. wG „? &SnWOS MANI?NWWRING F & SONS, INC. CpT,pBRESB Attn: Stewart Byers 1667 4800 E. W 8400 _ 1 Verbal TERMS: -----N730 F.O.B. r P ant P. 0. BOX 17055 QUOTE THE a••3 "` f hanicsburg r PA E W1TM YOUR REQUEST. WE ARE PLEASED TO P 1 IN ACCORDS DESCRIPTION QUANTITY $265 p/N 10935540 Rev. P• Item 1 Raw Casting, 48 HOUSING, FAN, 2175 Class 3 Grade C $190 as required per MIL-STD- $650 8 Xray Sets, the First Article. Dimensional layout of $7184( 1 pattern on a consisting cf one hardwood lastic core 1 Tooling with eight hardwood and p matchplate 4s , boxes, gated & risered. $22 Item 2 p/N 11642123 Rev. D. 48 HOUSING, Raw Casting, Xray Sets, as required per MIL-STD-2175 Class 3 Grade C $1` 8 $6i 1 Dimensional layout of the First Artic??ern on a Tooling consisting of one hardwood pr core p'( matchplate $6,9 1 with six hardwood and plastic , boxes, gated & risered. Sand casting tolerances +/-.030in or .004in/in NOTES. greater. Surface finish 250 rms. whichever is g _ Physicals from Prices inclcast 3test barsehan cliqu d penetrant separately inspection to Mii-Stde22175-d permission for cosmetics. Prices based on g n proposed Deliveries: 10-14 wks ARO. New Pattern tooling 16-20 wks ARO. WrABOVE QUOTATIOMSIl6JW' a,C? OF S1&6 N0M Du? RED 9o*- TWO COPIES OF ALL NECESSARY DRAWINGS ANO SPECIFICATIONS REQUIRED WITH YOUR PURCHASE ORDER. p a ko p n9to1 BY John D. Dank' President.- EMAIL: sales??daN?oakV0n.COm • WEB: www&ploa,*nglon.com 1 (410) 664 893' p 21215-5583 BALTIMQRE• M FAX • (410)664-084 gBASH AVENUE tr . f MDanko-' ,?1 la p rl ngton, Inc. 4800 E. WABASH AVENUE ,-?Bc.ALT?QRE, MD 21215-5583 # (410) 664 8-93! FAX • (410)664 089 i SvECIALISTS IN ?m?m®p?ursrxn iu_i ?l n 1 ONGN ERROUS CASTINGS rl n ? n ° mom ° p MACHINING MANUFACTURING gyp" ""'7 8400 F DATE (?? 7_Apr_ CALABRESE & SONS, INC. 00 11?6U Attn: Stewart Byers Verbal TERMS: N 30 P.O. Box 1667 J F.O.B. Mechanicsburg, PA 17055 r ant IN ACCORDANCE WITH YOUR REQUEST WE ARE PLEASED TO QUOTE THE IQMMINO,L of 1 -- a QUANTITY DESCRIPTION 48 Item 1 HOUSING, FAN, Raw Casting, P/N 10935540 Rev- P. $265.00 8 Xray Sets, as required per MIL-STD-2175 Class 3 Grade C $190.00 1 Dimensional layout of the First Article. $650.00 1 Tooling consisting of one hardwood pattern on a $7,840.00 matchplate, with eight hardwood and plastic core ty boxes, gated & risered. .?lw 48 Item 2 HOUSING, Raw Casting, P/N 11642123 Rev. D. 00 $228. 8 Xray Sets, as required per MIL-STD-2175 Class 3 Grade C $150.00 1 Dimensional layout of the First Article. $600.00 1 Tooling consisting of one hardwood pattern on a $6,970.00 matchplate, with six hardwood and plastic core 17 boxes, gated & risered. NOTES: Sand casting tolerances +/-.030in or .004in/in whichever is greater. Surface finish 250 rms. Prices include 355.0-T71 chemicals, physicals from separately cast test bars, and liquid penetrant inspection to Mil-Std-2175. Prices based on granted weld permission for cosmetics. Proposed Deliveries: New Pattern tooling 10-14 wks ARO. Casting production c ltd 16-20 wks ARO. 711E`ABOVE QUarAT10N SURIM TO COM81710MB OF SALE NcsED ON REVERSE SIDE. TWO COPIES OF ALL NECESSARY DRAWINGS AND SPECIFICATIONS REQUIRED WITH YOUR PURCHASE ORDER. EmAIL:saWs@dw*mvkVon.com - WEB: www.dwkmvft glon.com D a ko A rringtony Ina. John D. Danko BY President .£0-1:6a -r "D GENERAL TERMS AND CONDITIONS 1. Danko Arlington, Inc. is hereinafter called "Seller." The party to whom this bid proliosal is made is called "Buyer." 2. This quotation is subject to acceptance within 30 days and may be withdrawn or changed without notice prior to Seller's acceptance of purchase order. The terms hereof shall constitute the entire contract upon acceptance of Buyer's order except as otherwise specifically agreed in writing by Seller, and these provisions shall prevail over any other inconsistent terms proposed by Buyer. 3. Buyer infringement shall arisig out of completing Buyer's order. nfriin 4. Any interruption of Seller's production of Buyer's order caused by Buyer's postponement of delivery shall subject order to price review and increase at discretion of Seller. Orders for delivery later than six months after acceptance by Seller shall be subject to similar review. Where applicable, prices conform to prevailing government regulations in- cluding ASPR. 5. All taxes pertaining to order are payable by Buyer and are in addition to price quoted. 6. Seller is not responsible for loss of, or damage of any kind to. Buyer's patterns. molds, dies, jigs, fixtures, equip- ment such items. egl negligence. Seller isenot rexcept equired r to insure such gross 7. Any patterns, molds, dies, jigs, fixtures, equipment. or any other property owned or furnished by the Buyer shall be stored at Seller's expense. However, when after three (3) consecutive years. no orders, are received from the Buyer for products made from such tooling, Seller after giving p operty thereof written in such a mannereas it m?ayodetermine, without liability therefor. B. Seller may affix its trademark to and use units ordered in Seller's display or advertising. 9. Two sets of all applicable drawings and specifications are required to process orders where new parts or engineering changes ficatons a will involved. be suffic ent t fors a drawingordes wspeci. hen no engineering change is involved. It is not necessary for Buyer to supply government specifications. 10. All orders may be packaged, routed and shipped in accordance with what Seller considers the practice of the trade. Seller is not responsible for transportation delays or excessive transportation costs. Buyer's routing instructions "ill be honored if possible. / 11_ Sayersha r have no fivb"y for delays caused by strikes, ?/ labor controversies, fires, riots, n If , os Acts of GCO, or of er causes beyond Seller's control. Seller has no liability for any cu iii damage under or resulting from any cause. 12. All changes of any kind must be shown by change letter or number on drawings or by written notice to Seller, must be accepted in writing by Seller; and shall be subject to payment of all costs, loss and damage incurred as a result thereof. Cancellations shall be charged in the same manner. 13. Claims for shortages must be made in writing within ten days after delivery, or the date of invoice, whichever is earlier. 14. Seller reserves the right at any time to require security or immediate cash payment due to Buyer's credit condition. Buyer's order is subject to deferment or cancellation by Seller on account of any breach by Buyer or for failure to pay or give security as aforesaid, and all costs. loss, damage and charges owing shall be immediately due. 15. Seller warrants its products to be of sound workman- ship and material according to the standards of the trade. Seller is ready at all times to offer suggestions upon request including recommendations covering materials and design, but shall incur no liability on account thereof. 16. Title shall pass upon delivery to carrier at point of ship- ment, but neither Buyer nor consignee shall divert or re- consign without consent of Seller. 17. Buyer's order is subject to acceptance in writing by Seller at its Home Office in Baltimore City, Maryland, and the contract shall be construed according to Maryland law. ADDITIONAL TERMS RELATING ONLY TO PATTERNS AND CASTINGS A. Samples of new castings will be submitted to Buyer before production commences. Units made in accordance with approved samples shall be accepted by Buyer as com- plying with order. Submission of samples after engineering changes shall be optional with Seller. If models and prints are conflicting, then prints will be followed by Seller, except upon contrary written instructions from Buyer. B. Where inserts are furnished by customer, they shall be on a consignment basis in quantities 10% greater than the nominal quantity of castings ordered. C. Seller reserves the right to ship 10%, over or under quantity ordered. Excess units are chargeable at the same price as units ordered. D. "Castings" refers to units not machined. E. Seller warrants its castings to be according to accepted specifications and free of defects due to workmanship and material, to the extent customary in the trade, subject to variations specified hereinafter. Defective castings will be replaced without charge if Seller (1) confirms defects. which are (2) attributable to Seller, and (3) castings are returned to Seller within 90 days of delivery and (4) if there have been no attempts to remedy without Seller's authoriza- tion. Seller assumes no liability for Buyer's consequential labor or expense incident thereto, nor for any liability arising from use of Seller's products. F. Unless otherwise specified, castings will be supplied with the standard casting dimensional tolerances noted below. Closer tolerances must be negotiated between the Buyer and the Seller. Sand castings Plus and minus 1/32" from 1" to 12". Plus and minus 3/64" from 12" to 24". Plus and minus 1/16" for 24" and up with an addi- tional plus and minus .003" per linear inch above 24". Shell and Permanent Mold Castings Plus and minus .010" for the first inch. with an addi- tional plus and minus .002" per linear inch up to 12". Parting line never less than .015". G. Subject to Buyer's approval, pattern changes or repairs which become necessary because of unusual wear shall be made at the Buyer's expense. Repainting and repairs due to normal wear will be made by the Seller free of charge to the Buyer. 4:jsx?- \, ID '' I x t C7 C- N? C... `. • ?i Tr ?j r ? ? `?-., - :.-i ? - -' t ?? " , i.? 1?? Y? .rl J_ ?_? ?.,_ ? ?_l D ? ?? \ ?? i . Lam J ?v{ N -? V /? Cd IAAMa- 60%)TNc. Ir-,grVAK IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. q5' 70 CIVIL `Tqftc?64CA RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: JL1????H , counsel for th lainti in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. L 2. The claim of the plaintiff in the action is $ ?pli as 'fA71?°?f fZ The counterclaim of the defendant in the action is NOAlE The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted ORDER OF COURT AND NOW, 7-/ in consideration of the foregoing petition, Esq., and Esq, :. ' actions) as prayed for. Esq., are appointed arbitrators in the above captioned action (or By the Court P.J. , MNV/\IA' SNN3d I v 'z Intl zz 1114F CO DANKO ARLINGTON, INC., Appellee/Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. } CASE NUMBER CIV-02-4570 CALABRESE & SONS, INC., Defendant DOCKET NUMBER PLAINTIFF DANKO ARLINGTON INCORPORATED'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM 19. Admitted in part, denied in part. Danko Arlington, Inc. is a foundry, (emphasis added), in the business of producing metal castings. 20. Admitted. 21. Admitted in part, denied in part. Though the drawings may have been military in their nature, there was no notice to Danko Arlington, Inc. that said parts were for a military contract as Defendant's purchase order reflected no government contract number, nor any provision regarding Federal Acquisition Regulations, which every government contract must contain. 22. Denied. As mentioned above, Danko Arlington, Inc. had no need to meet the requirements Defendant mentions here as Defendant's own purchase order made no mention of a Department of Defense Contract, and also the specifications for the parts themselves indicated American Standard Metal was to be used for the parts. 23. Denied. Defendant's purchase order reflected no government contract number, nor any provision regarding Federal Acquisition Regulations, which every government contract must contain. Further, Danko Arlington, Inc. was given no information regarding Defendant's customer nor terms or prices negotiated with said customer. 24. Admitted in part, denied in part. Though MIL-STD 2175 Class 3 Grade 3 x-ray testing may be a military specification, Danko Arlington, Inc. was under no obligation, contractual, or otherwise to follow said specifications as Danko Arlington, Inc. quoted Defendant those specifications as a separate line item, even though Danko Arlington, Inc. produced the castings to x-ray specifications and provided Defendant one x-ray at no charge. 25. Denied generally. Danko Arlington, Inc. is without knowledge regarding this averment, therefore strict proof is demanded at hearing. 26. Denied generally. Danko Arlington, Inc. is without knowledge regarding this averment, therefore strict proof is demanded at hearing. 27. Denied. Any amendment/solicitation was for Defendant's benefit only. 28. Denied. As Danko Arlington Inc.'s contract was with Defendant only, Defendant was acting in their own interest. 29. Denied. As Danko Arlington Inc.'s contract was with Defendant only, Defendant was acting in their own interest. 30. Denied. Since the outcome of the District Justice action was the basis of Defendant's appeal, it is only proper the complete background of the appeal be stated. 31. Admitted. 32. Denied. Danko Arlington Inc. produced useable castings, all of which were accepted by Defendant without mention of any penalties other than the disclaimers contained in Danko Arlington, Inc.'s invoices, making any penalties Defendant's responsibility. 33. Denied. Defendant cannot claim damages against Danko Arlington on this issue as such action would add terms to a contract after the completion of the contract. 34. Denied. Any claim for damages by Defendant is inappropriate in this matter as any damages Defendant accrued were through their own negligence, and further, from the four corners of the documents regarding this matter it is clear Danko Arlington, Inc. cannot be held accountable for any damages claimed by Defendant. WHEREFORE, Appellee/Plaintiff, Danko Arlington, Inc., respectfully requests this Court enter an Order dismissing Defendant's New Matter and Counterclaim and denying the relief requested by the Defendant in this matter and award Danko Arlington, Inc. its original request for damages, attorney's fees expended attempting to collect what they are due, interest on the amount due, and any other relief this Court may deem just. Re ctfully submitted, James J. Woodworth, Esquire Supreme Court I.D. # 81343 209 Lackawanna Avenue Olyphant, PA 18447 (570) 489-9844 Dated: April 27, 2003 IN THE COURT OF OOWWN PLED OF CUMBERLAND COUNTY, DAMCO ARLINGTON, rNc., PENNS YL'VANiA AppellcdpbjnW ) Vs- } CASE NUMBER CIV4M4370 CALAB & SOM DWI t)()CICE7' IVUM$ER Dcfcndemt VFJURICATION I, JOHN DAVID DANKO, verily the I am an abler of D m*o Arlie Inc., am ao*Ad2ed to make this Va oo on bdu f of due do aVlt7tlellt! Ol•+a ? in t? ?, Danko Ar{to?, Inc, $11? and ootrat b the heft fang Anmw to Danodues New Meaty arse true h0lSin u d am w? of ? ' iufwmatkm and bel4 and aa?ppd am fahe scents l b u nwom favifcad to to ' m tieaties of 18 tat. C-&A, 3eaion 4904, Date: Apr9 28, 2003 D.DANKO Danko Arlb oa n, Inc, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DANKO ARLINGTON, INC., ) Appellee/Plaintiff ) VS. ) CASE NUMBER CIV-02-4570 CALABRESE & SONS, INC., DOCKET NUMBER Apellant/Defendant ) AFFIDAVIT OF SERVICE By signing below, I, James J. Woodworth, Esquire, do certify that a true and correct copy of Plaintiff's Answer to New Matter and Counterclaim regarding the above matter was served upon Defendant's counsel, Mr. David A. Fitzsimons, by depositing same in the U.S. Mail, Postage prepaid, First Class and addressed as follows: David A Fitzsimons, Esquire C/O Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110 Al J ames J. Woodworth, Esquire Attorney for Appellee/Plaintiff Attorney I.D. #81343 209 West Lackawanna Ave. Olyphant, PA 18447 (570) 489-9844 Dated: April 29, 2003 ..,., ?,? ? m ,? ?- Y} -.. _ . {? `_.? ('? '_ - =; ? - _ -- `'''- -r y'f? .: cn =< I ) In The Court of Common Pleas of Cumberland County, Pennsylvania NO. C--k575 ` 0 z?O C2rC A-09ESE ?c s sc G OATH We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Common- wealth and that we will discharge the duties of our office with pt4elity. ?. _ irman si '. AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) O c?a?.t c C---?}cssa C'ZK (Q 1\ Arbitrator, dissents. (Insert name is applicable.) Date of Hearing: i Date of Award: -z(z?'(o`3 ++ NOTICE OF ENTRY OF AWARD Now, the ay day of 4 -2zV,3 at 3.-C5 , P .a., the above award was entered upon th doeket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: P thonotary $ -290.00 By: y x ?j Deoucy I - q.?aw 1 t2- 4rA-- W. (PWG^'1 •1 41J erh-f- DANKO ARLINGTON, INC., Plaintiff V. CALABRESE & SONS, INC Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION a.0o3- NO. 4570--20W NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice is hereby given that Defendant, Calabrese & Sons, Inc., appeals from the award of the board of Arbitrators entered in this case on July 24, 2003. A jury trial is demanded. I hereby certify that the compensation of the arbitrators has been paid. METTE, EVANS & WOODSIDE BY. David A. Fitzsimons, Esquire Sup. Ct. I.D. # 41722 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant DATED: August 22, 2003 CERTIFICATE OF SERVICE I, DAVID A. FITZSIMONS, ESQUIRE, hereby certify that on the 22nd day of August, 2003, I served a copy of the foregoing document upon the person(s) 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 U.S. mail, first-class postage prepaid, as follows: James J. Woodworth, Esquire 209 Lackawanna Avenue Olyphant, PA 18447 P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant 334789 1 David A. Fitzsimons, r:sgmre Sup. Ct. I.D. # 41722 3401 North Front Street r -' r Y ? z4 'V . -r ' ` A< ' -,cam c. rg In w ?I 0' Crea.& 9/2?/OC 0:06PM Revived: d2 /06 33PM 11093.5 v :O ARLINGTON, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2002-4570 CIVIL ACTION - LAW & SONS, INC., Defendant. JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR RULE TO SHOW CAUSE David . Fitzsimons, Esquire MAR SON DEARDORFF WILLIAMS & OTTO I.D. N). 41722 10 Ea,, t High Street Carlisle, PA 17013 (717) 43-3341 Atto vs for Defendant the both form be NOW comes the Defendant, Calabrese & Sons, Inc., by and through their attorneys, MARTSON DORFF WILLIAMS & OTTO, and makes the following Motion for a Rule to Show Cause why on should not be dismissed for Non Pros: 1. This is a civil action commenced in 2002 which was adjudicated by court annexed ionpanel on July24, 2003; timely appealed with compensation ofthe arbitrators beingpaid by ant on August 22, 2003. 2. Counsel for Plaintiff was duly served. 3. There has been no activity on Plaintiff's behalf since July of2003 to pursue its action. 4. On or about June 19, 2006, Defendant's counsel has attempted contact by telephone with unsel for the Plaintiff and directly to Plaintiffs corporate office and no response has to date been 5. Counsel for Defendant has also caused correspondence to be directed to counsel for the 6. Defendant is requesting that the Court will enter a Role to Show Cause essentially in the copy attached, directing Plaintiffto show cause within thirty (30) days whythe action should not iissed for Non Pros. WHEREFORE, for the reasons stated above, Defendant respectfullyprays that the Court will enter a Rule :) Show Cause upon Plaintiff directing Plaintiff to demonstrate why the action should not be within thirty (30) days for Non Pros. MARTSON DEARDORFF WILLIAMS & OTTO By David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: ?une 28, 2006 Attorneys for Defendant CERTIFICATE OF SERVICE that a 1, Melissa A. Scholly, an authorized agent forMartsonDeardorffWilliams & Otto, herebycertify >py of the foregoing Defendant's Motion for Rule to Show Cause was served this date by 1g same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: James J. Woodworth, Esquire 209 Lackawanna Avenue Olyphant, PA 18447 MARTSON DEARDORFF WILLIAMS & OTTO BY: JA Melissa A. Scholly Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: June 28, 2006 _ ri5 T - -G w. 4 DANKO ARLINGTON, INC., Plaintiff V. CALABRESE & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-4570 CIVIL TERM ORDER OF COURT AND NOW, this 5th day of July, 2006, upon consideration of Defendant's Motion for Rule To Show Cause, it is ordered that: 1. A Rule is issued upon Plaintiff to show cause why Defendant is not entitled to the relief requested; 2. Plaintiff shall file an answer to the motion within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Monday, October 2, 2006, at 2:15 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Briefs shall be submitted at least seven days prior to argument. BY THE COURT, b c?,0 60 J ? ? P. -? i ? , ? .. . ,. . 1 _.. + - 7 ?a .• James J. Woodworth, Esq. 209 Lackawanna Avenue Olyphant, PA 18447 Attorney for Plaintiff David A. Fitzsimons, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendant :rc IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DANKO ARLINGTON, INC., Plaintiff, vs. NO. 2002-4570 CIVIL ACTION LAW CALABRESE & SONS, INC., Defendant JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION FOR RULE TO SHOW CAUSE NOW, comes the Plaintiff, Danko Arlington, Inc., by and through their attorney, James J. Woodworth, Esquire and in support of their Answer to Defendant's Motion For Rule To Show Cause avers: 1. Admitted in part, denied in part. It is admitted that the above action was commenced in 2002 and was adjudicated by a court annexed arbitration panel paid by Defendant. However, after reasonable investigation, Plaintiff is without sufficient knowledge, information and belief to admit or deny whether this matter was appealed in a timely manner, therefore this allegation is specifically denied and strict proof thereof will be demanded at trial. 2. After reasonable investigation, Plaintiff is without sufficient knowledge, information and belief to admit or deny the allegations in this Paragraph. Therefore, such allegations are specifically denied and strict proof thereof will be demanded at trial. Admitted. 4. Admitted in part, denied in part. It is admitted Defendant's counsel contacted Plaintiff's counsel telephonically, however it is specifically denied Plaintiff's counsel did not respond to Defendant's counsel. After reasonable investigation, Plaintiff is without sufficient knowledge, information and belief to admit or deny the allegation in this Paragraph that Defendant's counsel attempted to directly contact Plaintiff s corporate office. Therefore, this allegation is specifically denied and strict proof thereof will be demanded at trial. 5. Admitted. 6. Admitted. WHEREFORE, for the reasons stated above Plaintiff respectfully requests this Honorable Court deny Defendant's Motion to Dismiss for Non Pros. I V d, James J. Woodworth, Esquire ID # 81343 Counsel for Plaintiff 209 Lackawanna Avenue Olyphant, PA 18447 (570) 489-9844 CERTIFICATE OF SERVICE I, James J. Woodworth, Esquire do hereby certify that service of a true and correct copy of the attached Answer to Rule to Show Cause was made upon Defendant's counsel by way of first class mail, postage prepaid at the address below: David A. Fitzsimons, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17103 James J. Woodworth, Esquire Dated: August 29'", 2006 c> MI C'1 ? -7 n LI) c ? ^ N DANKO ARLINGTON, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW CALABRESE & SONS, INC., Defendant NO. 02-4570 CIVIL TERM IN RE: PETITION FOR JUDGMENT OF NON PROS BEFORE OLER, J. ORDER OF COURT AND NOW, this 22nd day of November, 2006, upon consideration of Defendant's petition for judgment of non pros in the form of a Motion for Rule To Show Cause, following oral argument held on October 2, 2006, and for the reasons stated in the accompanying opinion, the petition is denied. .dames J. Woodworth, Esq. 209 West Lackawanna Avenue Olyphant, PA 18447 Attorney for Plaintiff ,,David A. Fitzsimons, Esq. Michael J. Collins, Esq. 10 East High Street Carlisle, PA 17013 1 Attorneys for Defendant BY THE COURT, CZ V11esley Oler, , J. ALI DANKO ARLINGTON, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CALABRESE & SONS, INC., Defendant CIVIL ACTION - LAW NO. 02-4570 CIVIL TERM IN RE: PETITION FOR JUDGMENT OF NON PROS BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., November 22, 2006. In this case arising out of a contract between Plaintiff as manufacturer/seller and Defendant as buyer, Plaintiff has sued Defendant for $6,591.22, representing the amount Plaintiff claims to be due on the purchase price of certain "castings" delivered to Defendant.' Defendant has counterclaimed for losses allegedly incurred due to a delay in Plaintiff's performance.2 For disposition at this time is Defendant's petition for judgment of non pros.3 For the reasons stated in this opinion, the petition will be denied. STATEMENT OF FACTS This case was commenced by Plaintiff Danko Arlington, Inc., of Baltimore, Maryland, against Defendant Calabrese & Sons, Inc., of Mechanicsburg, Pennsylvania, at the district justice level.' At that level, Plaintiff was awarded judgment against Defendant by the Honorable Thomas A. Placey in the amount of ' Plaintiff's Complaint, filed October 7, 2002. z Defendant's Answer with New Matter and Counterclaim, dated April 14, 2003. 3 Defendant's Motion for Rule To Show Cause, filed July 28, 2006. 4 See Notice of Judgment/Transcript, Danko Arlington, Inc. v. Calabrese & Sons, Inc., dated September 9, 2002. $6,591.22.5 Defendant filed a notice of appeal to this court from the judgment of the district justice on September 23, 2002.6 Plaintiff's complaint in this court was filed on October 7, 2002.7 Defendant's answer with new matter and counterclaim appears in the official file, but for some reason was not time-stamped or entered on the docket by the prothonotary. Plaintiff's reply to Defendant's new matter and counterclaim was filed on April 30, 2003.8 The case proceeded to arbitration, resulting in a second award in favor of Plaintiff in the amount of $6,591.92, on July 24, 2003.9 Defendant filed a notice of appeal from the Award of the Board of Arbitrators on August 22, 2003.10 A certificate of service upon Plaintiff's counsel accompanied the notice of appeal." The docket reveals no further docket activity until June 28, 2006, when Defendant filed a petition for judgment of non pros based upon the extended period of docket inactivity. 12 The petition alleged the following: 1. This is a civil action commenced in 2002 which was adjudicated by court annexed arbitration panel on July 24, 2003; timely appealed with compensation of the arbitrators being paid by Defendant on August 22, 2003. 2. Counsel for Plaintiff was duly served. 3. There has been no activity on Plaintiff's behalf since July of 2003 to pursue its action. 4. On or about June 19, 2006, Defendant's counsel has attempted contact by telephone with both counsel for the Plaintiff and directly to Plaintiff's corporate office and no response has to date been received. 5 Judgment, September 9, 2002. 6 Notice of Appeal, filed September 23, 2002. Plaintiff's Complaint, filed October 7, 2002. 8 Plaintiff Danko Arlington, Incorporated's Answer to Defendant's New Matter and Counterclaim, filed April 30, 2003. 9 Award of Arbitrators, filed July 24, 2003. 10 Defendant's Notice of Appeal from Award of Board of Arbitrators, filed August 22, 2003. 11 Defendant's Notice of Appeal from Award of Board of Arbitrators, filed August 22, 2003. 12 Defendant's Motion for Rule To Show Cause, filed July 28, 2006. 2 5. Counsel for Defendant has also caused correspondence to be directed to counsel for the Plaintiff. 6. Defendant is requesting the Court will enter a Rule to Show Cause ... directing Plaintiff to show cause within thirty (30) days why the action should not be dismissed for Non Pros.13 On July 5, 2006, the court issued a rule to show cause in response to the petition, reading as follows: 1. A Rule is issued upon Plaintiff to show cause why Defendant is not entitled to the relief requested; 2. Plaintiff shall file an answer to the motion within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Monday, October 2, 2006, at 2:15 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania[;] 6. Briefs shall be submitted at least seven days prior to argument. 14 Plaintiff's answer to the petition for judgment of non pros was filed on August 31, 2006.15 The answer admitted (a) that the action had been commenced in 2002 and had been the subject of an arbitration award, (b) that Plaintiff had undertaken no activity since July of 2003 to pursue the action, (c) that Defendant's counsel had contacted Plaintiff's counsel by telephone, and (d) that Defendant's counsel had sent correspondence to Plaintiff's counsel. 16 The answer denied, however, that Plaintiff's counsel had not responded to Defendant's counsel. 17 It also refused to admit, on grounds of a lack of information, (a) that Defendant had appealed from the arbitrators' award, (b) that counsel for Plaintiff had been served with notice of the appeal, and (c) that 13 Defendant's Motion for Rule To Show Cause, filed June 28, 2006. 14 Order of Court, July 5, 2006. 15 Plaintiff's Answer to Defendant's Motion for Rule To Show Cause, filed August 31, 2006. 16 Plaintiff's Answer to Defendant's Motion for Rule To Show Cause, paras. 1, 3-5, filed August 31, 2006. 17 Plaintiff's Answer to Defendant's Motion for Rule To Show Cause, para. 4, filed August 31, 2006. 3 Defendant's counsel had attempted to directly contact Plaintiffs corporate office. 18 Neither the petition nor the answer addressed the issue of whether Defendant had incurred any prejudice from the delay. Nor were depositions conducted by either party. The matter was argued, in accordance with the Rule, on October 2, 2006. DISCUSSION A judgment of non pros is appropriately entered where (1) a party has shown a lack of due diligence by failing to proceed with reasonable promptitude, (2) there is no compelling reason for the delay, and (3) the delay has caused prejudice to the adverse party. Jacobs v. Halloran, 551 Pa. 350, 358, 710 A.2d 1098, 1103 (1998). In Jacobs, the Pennsylvania Supreme Court returned to the three-prong test requiring actual prejudice, set forth above, overruling previous precedent that two years of inactivity in a case created a presumption of prejudice. Id. Prejudice in this context has been defined as "any substantial diminution of a party's ability to properly present its case at trial." Id. at 359, 710 A.2d at 1103 (citations omitted). The burden of proof with respect to prejudice rests with the party seeking the non pros. See Garver v. Bradford/White Corp., 711 A.2d 1063 (Pa. Commw. 1998). Under Pennsylvania Rule of Civil Procedure 206.7, where a rule to show cause of the type issued in this case is involved, the following applies to the court's disposition of the petition that precipitated the rule: (a) If an answer [to the petition] is not filed, all averments of fact in the petition may be deemed admitted ... and the court shall enter an appropriate order. (b) If an answer is filed raising no disputed issues of material fact, the court on request of the petitioner shall decide the petition on the petition and answer. 18 Plaintiff's Answer to Defendant's Motion for Rule To Show Cause, paras. 1-2, 4, filed August 31, 2006. 4 (c) If an answer is filed raising disputed issues of material fact, the petitioner may take depositions on those issues, or such other discovery as the court allows, within the time set forth in the order of the court. If the petitioner does not do so, the petition shall be decided on petition and answer and all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted .... (d) The respondent may take depositions, or such other discovery as the court allows.19 In the present case, where (a) Defendant did not allege in its petition for judgment of non pros any actual prejudice to it from Plaintiff's docket inactivity, (b) Plaintiff did not concede any prejudice to Defendant in its answer to the petition, and (c) Defendant did not conduct any depositions, on the issue of prejudice or otherwise, the court is not in a position to grant the petition for judgment of non pros. Accordingly, the following order of court will be entered: ORDER AND NOW, this 22°d day of November, 2006, upon consideration of Defendant's petition for judgment of non pros in the form of a Motion for Rule To Show Cause, following oral argument held on October 2, 2006, and for the reasons stated in the accompanying opinion, the petition is denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. James J. Woodworth, Esq. 209 West Lackawanna Avenue Olyphant, PA 18447 Attorney for Plaintiff David A. Fitzsimons, Esq. Michael J. Collins, Esq. 10 East High Street Carlisle, PA 17013 Attorneys for Defendant 19 Pa. R.C.P. 206.7. 5 DANKO ARLINGTON, ) IN THE COURT OF COMMON PLEAS OF INC., ) CUMBERLAND COUNTY, PENNSYLVANIA Appellee/Plaintiff ) V. ) CIVIL ACTION - LAW CALABRESE & SONS, ) INC., ) Apellant/Defendant ) NO. 02-4570 CIVIL TERM NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take prompt action after receipt of this Complaint and Notice by entering a written appearance personally, or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. YOU ARE WARNED that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. DANKO ARLINGTON, ) INC., ) Appellee/Plaintiff ) V. 1 CALABRESE & SONS, ) INC., ) Apellant/Defendant ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-4570 CIVIL TERM COMPLAINT AND NOW COMES, Apellee /Plaintiff, DANKO ARLINGTON, INC., by and through their attorney, James J. Woodworth, Esquire, in response to the appeal of Apellant/Defendant CALABRESE & SONS, INC., from a decision of a Cumberland County Board of Arbitrators and does make the following Complaint: BACKGROUND 1. Danko Arlington, Incorporated, (Appellee/Plaintiff), is a corporation, duly registered with the Maryland State Department, doing business at 4800 East Wabash Avenue, Baltimore, Maryland, 21215-5583. 2. Calabrese & Sons, Incorporated, (Appellant/Defendant), is a corporation doing business in Pennsylvania at P.O. Box 1667, 406 Brandy Lane, Mechanicsburg, Pennsylvania, 17055. 3. This Complaint is filed in response to Apellant/Defendant's appeal of a Cumberland County Arbitration Board's decision affirming District Justice Thomas A. Placey's award to Danko Arlington, Incorporated of six thousand, five hundred, ninety one dollars and twenty two cents, ($6,591.22). 4. The Cumberland County Arbitration Board further awarded Danko Arlington, Incorporated six per cent interest per annum on the above sum, to be calculated from September 9`h, 2002, the date of District Justice Placey's decision. 5. District Justice Placey found Calabrase and Sons, Inc., was not entitled to pass on late costs/penalties incurred by them resulting from their late delivery of the below described items to the Department of Defense, (DOD), to Danko Arlington, Inc., without prior notice and agreement. COUNTI BREACH OF CONTRACT 6. On or about March 17, 2000 Calabrase and Sons, Inc. was awarded a contract from the Department of Defense, (DOD), regarding the manufacture of replacement fan housings. 7. As part of the above mentioned contract, on or about May 3, 2000, Danko Arlington, Incorporated was given a written purchase order 49152, (Appellee/Plaintiff's Exhibit "A"), by Calabrase and Sons, Inc. to manufacture 48 castings, Item Il, Part Number, 11642123, at a total cost of ten thousand, nine hundred, forty four dollars, ($10, 944.00). 8. Danko Arlington's delivered the castings in four installments, the last installment being on or about February 23, 2001. 9. Calabrase and Sons, Inc. accepted the four deliveries but, thus far, has paid only for the first three. 10. On February 23, 2001, Danko Arlington, Inc. invoiced Calabrase and Sons, Inc., Invoice #3823, (Appellee/Plaintiff's Exhibit "B"), at terms of 30 days net, for the contracted cost of ten thousand, nine hundred, forty four dollars, ($10,944.00). 11. In response to Danko Arlington, Inc.'s Invoice 43823, Calabrase and Sons, Inc. sent a check, #014284, dated May 3, 2002, to Danko Arlington, Inc. in the amount of four thousand, four hundred, seventy four dollars and twenty eight cents, ($4,474.28). 12. Said check reflects Calabrase and Sons, Inc. paid Plaintiff six thousand, four hundred, sixty nine dollars and seventy two cents, ($6,469.72), less than what Danko Arlington, Inc quoted Calabrese and Sons on April 27, 2000. 13. In two documents titled "Amendment of Solicitation/Modification of Contract," (Appellee/Plaintiff s Exhibit "C"), Calabrase and Sons, Inc. requested modifications of their contract with DOD, specifically, a delayed delivery date in return for a decrease in the price DOD would pay for the items promised which were granted. 14. The documents mentioned above were signed on or about October 2, 2000, and July 30th, 2001 by J.A. Calabrese, CEO of Calabrese & Sons. Said documents reflect Calabrese & Sons would receive six thousand, four hundred, sixty nine dollars and seventy two cents, ($6,469.72), less than their original bid in return for the DOD's extended delivery date. 15. Danko Arlington, Inc. was never informed that Calabrase and Sons, Inc. contract was a DOD contract, and as such, subject to Federal Acquisition Regulation Standards, nor of Defendant's Amendment of Solicitation/Modification of Contract, (Appellee/Plaintiffs Exhibit "C"), with DOD. 16. On the front side of Danko Arlington's quotation form #8400, (Appellee/Plaintiffs Exhibit "D"), dated April 27, 2000, to Calabrase and Sons, Inc., it is clearly stated "The above quotation subject to conditions of sale noted on reverse side". 17. On the reverse side of Danko Arlington's above-mentioned quotation, condition 411 of General Terms and Conditions clearly states, "Seller shall have no liability for delays caused by strikes ...., government regulations, ...., or other causes beyond Seller's control. 18. Also, on the reverse side of Danko Arlington's above-mentioned quotation, condition #11 of General Terms and Conditions states, "Seller has no liability for any consequential damages under any circumstances or resulting from any cause." 19. Despite Danko Arlington's continued demands to Calabrase and Sons, Inc. for payment, Calabrase and Sons, failed, and continues to fail to pay the original balance of the contract, Six-thousand, Five-hundred, Ninety-one dollars and Twenty-two cents, ($6,591.22), plus six per cent interest, from the date of district Justice Placey's decision. WHEREFORE, Danko Arlington, Incorporated requests this Honorable Court award them as against Calabrese & Sons, Incorporated the amount of six thousand, five hundred, ninety one dollars and twenty two cents, ($6,591.22), plus six per cent interest per annum from September 9th, 2002, the date of District Magistrate Placey's original decision, and reasonable attorney's fees and costs of ten thousand dollars, ($10,000.00). pectfully ub itted, 11 4?6w?j t • JAMES J. WOODWORTH, ESQUIRE Attorney for Appellant/Plaintiff Attorney I.D. #81343 209 West Lackawanna Avenue Olyphant, PA 18447 (570) 489-9844 DANKO ARLINGTON, INC., Appellee/Plaintiff V. CALABRESE & SONS, INC., Apellant/Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-4570 CIVIL TERM VERIFICATION I, JOHN DAVID DANKO, verify that I, as an officer of Danko Arlington Inc., am authorized to make this Verification on behalf of the Apellee /Plaintiff ; and that the averments of fact in the foregoing Complaint are true and correct to the best of my knowledge, information and belief, and understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: A?" J D.DANKO V resident, Danko Arlington, Incorporated CERTIFICATE OF SERVICE I, James J. Woodworth, Esquire do hereby certify that service of a true and correct copy of the attached Complaint was made upon Defendant's counsel by way of first class mail, postage prepaid at the address below: David A. Fitzsimons, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17103 (717) 243-1850 i LVJ 44&? James J. Woodworth, Esquire Dated: r?a??7 Li.:1 t..) r? ? -? G j1 710 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DANKO ARLINGTON, INC., Plaintiff, vs. NO. 2002-4570 CIVIL ACTION LAW CALABRESE & SONS, INC., Defendant JURY TRIAL DEMANDED PRAECIPE TO WITHDRAM COMPLAINT To the Prothonotary of Cumberland County; Please withdraw the Complaint filed on January 29d', 2007 in the above captioned matter on and 4}scontinue any further action regarding same. Please *so be advised my client will continue proceeding with the original Complaint entered in this matter on October 2"d, 2002. Submitted by: Jaynes J. Woodworth, Esquire iii -r? tz ? ?r u3 :-' i. w ? c -? ?` =;3 -._..o ?? C? C ? ? G ? ? James J. Woodworth, Esquire Attorney for AppelleelPlaintiff 209 Lackawanna Avenue Olyphant, PA 18447 (570) 489-9844 DANKO ARLINGTON, ) IN THE COURT OF COMMON YI mb ur INC., } CUMBERLAND COUNTY, PENNSYLVANIA Appellee/Plaintiff ) V. } CIVIL ACTION - LAW CALABRESE & SONS, ) INC., Apellant/Defendant ) NO. 024570 CIVIL TERM MOTION TO COMPEL PRODUCTION OF DOCUMENTS 1. On, May e, 2007, the Appellee/Plaintiff in this matter, Danko Arlington, Inc., through their counsel, James J. Woodworth, Esquire served a Request for Production of Documents on Appellant/DefendaM Calabrese & Sons, Inc., through their counsel, David A. Fitzsimons, Esquire. 2. Defendant did not respond to this request. 3. On, July 11 ", 2007, Danko Arlington, Inc., through their counsel, James J. Woodworth, Esquire again served the same Request for Production of Documents on AppellanVWendant, Calabrese & Sons, Inc., through their counsel, David A. Fitzsimons, Esquire. A copy of the Request for Production of Documents and the accompanying cover letter are attached to this motion as Exhibit "A". 4. Again, Defendant did not respond to this request. 5. The Pennsylvania Rules of Civil Procedure state, "The party upon whom the request is served shall within thirty days after the service of the request serve an answer including objections to each numbered paragraph in the request." 6. As of the date of this motion, Defendant has not complied with Plaintiffs Request for Production of Documents. WHEREFORE, Plaintiffs respectfully request this Honorable Court order Defendant: (a.) To immediately comply with Plaintiffs request; and (b.) Reimburse Appellee/Plaintiffhis reasonable counsel fees and costs in bringing this motion. espectfully submi James J. Woodworth, Esquire Counsel for Appellee/Plaintiff DANKO ARLINGTON, ) IN THE COURT OF COMMON PLEAS OF INC., ) CUMBERLAND COUNTY, PENNSYLVANIA Appellee/Plaintiff ) V. ) CIVIL ACTION - LAW CALABRESE & SONS, ) INC., ) ApellantiDefendant ) NO. 02-4570 CIVIL TERM CERTIFICATE OF SERVICE I, James J. Woodworth, Esquire do hereby certify that service of a true and correct copy of the attached Motion to Compel Production of Documents was made upon Apellant/Defendant's counsel by way of first class mail, postage prepaid at the address below: David A. Fitzsimons, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17103 (717) 243-1850 ?f James J. Woodworth, Esquire Dated: September 21 s, 2007 JAMES 1 WOODWORTH, ESQUIRE ? ATTORNEY - at - LAW 209 WEST LACKAWANNA AVENUE OLYPRANT, PA IM47 (570) 489-9844 July 11`x, 2007 David A. Fitzsimons, Esquire Martson Deardorf Williams 8t Otto 10 East High Street Carlisle, PA 17013 RE: DANKO ARLINGTON, INC. v. CALABRESE AND SONS, INC. CIVIL CASE #CIV-02-4570 Dear Attoreey Fitzsimons: Enclosed, please find Appellee/Plaintiff's Request for Production of Documents. I have also enclosed a copy of the cover letter I sent by first class mail on May 8", 2007 along with my client's first copy of his Request for Production of Documents. As I am sure you realize, Rule 4019.12 of the Pennsylvania Rules of Civil Procedure mandate a ` party upon whom a Request for Production of Documents is served, answer said request within thirty days of service of that request upon a party. Therefore, if your client refuses to answer the enclosed Request for Production of Documents in a timely fashion, my client shall have no choice but to petition the Court for sanctions under Pennsylvania Rule of Civil Procedure 4019. If you have any questions, please do not hesitate to can me. S' cerely, James J. Woodworth, Esquire James J. Woodworth, Esquire Attorney for Appellee/Plaintiff 209 Lackawanna Avenue Olyphant, PA 18447 (570) 489-9844 DANKO ARLINGTON, } IN THE COURT OF COMMON PLEAS OF INC., ) CUMBERLAND COUNTY, PENNSYLVANIA Appellee/Plaintiff ) V. ) CIVIL ACTION - LAW CALABRESE & SONS, ) INC., ) Apellant/Defjendant ) NO. 024570 CIVIL TERM P _ S REQUEST FOR PRODUG -m OF09CUME D_ TO DEFENDANT TO: CALAABRESE & SONS, INC., ApellanUMendawt and its attorney, DAVID A. FIT7SIMONS, ESQUIRE Pursuant to Pa. R.C.P. 4009, you are hereby requested to produce the below listed documents and/or items for purposes of discovery. This material will be examined and/or photocopies; photograph negatives will be processed and photographs reproduced. Said documents or tangible things are to be produced at the office of James J. Woodworth, Esquire, 209 Lackawanna Avenue, Olyphant, PA 18447, within thirty (30) days of the date of service hereof and supplemented thereafter in accordance with Pa. R.C.P. 4007.4. If you choose to provide digitally stored materials, provide them in native, searchable format. You are further notified that if you later team of any information not supplied in your Response to Request for Production of Documents, you are required by the Rules of Civil Procedure to supply the undersigned with such information in the form of Supplemental Responses to Request for Production of Documents. 1. The entire contents of any investigation file or files and any other documentary material in your possession, which support or relate to the above captioned action (excluding references to mental impressions, conclusions or opinions representing the value or merit of the claim or defense or respecting strategy or tactics and privileged communications from and to counsel). 2. Any and all statements concerning the action, as defined by Rule 4003.4, including, but not limited to, statements from the parties herein, potential witnesses, individuals with knowledge of any discoverable matter, or their respective agents, servants or employees. 3. All photographs, videotapes, plans, specifications, drawings, tangible evidence or diagrams that pertain to the subject matter of the present litigation. 4. Any and all documents containing the names and business addresses of all individuals contacted as potential wig. 5. Reports and curriculum vitae of any and all experts who will testify at trial. 6. All documents which comprise the contract described in Plaintiffs Complaint. 7. All documents, which make reference to, or are related to the above-referenced contract. 8. Any and all general ledgers, cash receipts and disbursement records regarding the above captioned action. If the records are computerized, we would like a detailed account analysis of the account. 9. Any and all internal communications at Calabrese and Son, Inc. and communications with Danko Arlington and third parties relating to the production of, and alleged delays in production of the castings which are the subject of the contract upon which the above suit is based. '/ Xx [ I 10. Any and all internal budgets, schedules or forecasts prepared by or for Calabrese and Son, Inc., relating to the castings at issue, and their intended end-use. 11. All exhibits and/or demonstrative evidence intended to be used at trial. 12. Provide a privilege log identifying all materials being withheld, and your basis for withholding same. BY: James J. Woodworth, Esquire Attorney for Appellee/Plaintiff 209 Lackawanna Avenue Olyphant, PA 18447 (570) 489-9844 Date: July 11 ", 2007 r ca .tn ..rG DANKO ARLINGTON, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW CALABRESE & SONS, INC., Defendant NO. 02-4570 CIVIL TERM ORDER OF COURT AND NOW, this 25`h day of September, 2007, upon consideration of Plaintiff's Motion To Compel Production of Documents, a Rule is hereby issued upon the Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. t/ames J. Woodworth, Esq. 209 Lackawanna Avenue Olyphant, PA 18447 Attorney for Plaintiff avid A. Fitzsimons, Esq. Ten East High Street Carlisle, PA 17013 Attorney for Defendant :rc BY THE COURT, VII`+IVAIASNN'9d Nincr ZC :I I WV SZ d3S [OOZ AatJ!(7NGHiO?id 3H13Q 90Hv O-Q '**TILES\Clients\ 11093\ l 1093\1 1093 5.resp. mot. comp Created-. 9/20104 0:06PM Revised. 11/13/07 2.25PM David A. Fitzsimons, Esquire I.D. No. 41722 Katie J. Maxwell, Esquire I.D. No. 206018 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant DANKO ARLINGTON, INC., Plaintiff V. CALABRESE & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-4570 CIVIL ACTION - LAW : JURY TRIAL DEMANDED DEFENDANT'S RESPONSE TO RULE TO SHOW CAUSE AND NOW, comes the Defendant, Calabrese & Sons, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and responds as follows to Plaintiff's Rule to Show Cause: 1. On September 21, 2007, Plaintiff filed a Motion to Compel Production of Documents. 2. Plaintiff's Motion was granted by Judge Oler on September 25, 2007. 3. Defendant provided Plaintiffs counsel with the requested documents by mail on October 18, 2007. 4. Defendant has fully complied with the Court's Order. Date: November 13, 2007 Respectfully Submitted, MARTSON LAW OFFICES By ea&4 - Katie J. Maxw6K, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorney for Defendants CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Response to Motion to Compel was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: James J. Woodworth, Esquire 209 Lackawanna Avenue Olyphant, PA 18447 MARTSON LAW OFFICES r-cia D. Eckenroad Ten East High Street Carlisle, PA 17013 /,?j (717) 243-3341 Dated: AvnV? 13. 7 ?a p -In's 7 ty al l w