IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TOLEDO MACK SALES & SERVICE, INC.,

Plaintiff,

v.

MACK TRUCKS, INC.,

Defendant.

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CIVIL ACTION NO.

2:02-CV-04373-RLB

JURY TRIAL DEMANDED

MACK TRUCKS INC.,

Plaintiff,

v.

TOLEDO MACK SALES & SERVICE, INC. and

PAI INDUSTRIES, INC.,

Defendants.

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JURY TRIAL DEMANDED

PAI INDUSTRIES, INC.,

Plaintiff,

v.

TOLEDO MACK SALES & SERVICE, INC.,

Defendant.

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JURY TRIAL DEMANDED

Case 2:02-cv-04373-RB Document 25 Filed 10/10/2002 Page 1 of 10
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ANSWER TO THE CROSSCLAIMS OF PAI INDUSTRIES, INC. AND CROSSCLAIMS 

OF TOLEDO MACK SALES & SERVICE, INC., 

Plaintiff and Crossclaim Defendant Toledo Mack Sales & Service, Inc. (“Toledo Mack”), 

by and through its undersigned counsel, Duane Morris LLP, hereby answers the Crossclaims of 

PAI Industries, Inc. (“PAI”) and asserts its crossclaims as follows. All averments of the 

Crossclaims not specifically admitted or denied below are hereby denied.

ANSWER TO CROSSCLAIMS OF PAI INDUSTRIES, INC.

1. Admitted, upon information and belief.

2. Admitted.

3. Denied. The allegations in this paragraph constitute conclusions of law to which 

no response is required and, therefore, such allegations are deemed denied. 

4. Denied. The allegations in this paragraph constitute conclusions of law to which 

no response is required and, therefore, such allegations are deemed denied. 

5. Denied. The allegations in this paragraph constitute conclusions of law to which 

no response is required and, therefore, such allegations are deemed denied. 

6. Denied. The allegations in this paragraph constitute conclusions of law to which 

no response is required and, therefore, such allegations are deemed denied. 

7. Admitted.

8. Admitted that Toledo Mack was authorized by Mack Trucks, Inc. (“Mack”) to 

obtain copies of the MACSPEC 2001 system for its customers. Admitted that Toledo Mack told 

PAI that Mack had made the MACSPEC 2001 available for Toledo Mack’s customers. All other 

matters asserted in this paragraph are denied.

9. Admitted in part, denied in part. Toledo Mack admits that it invoiced PAI for a 

one-year lease for the MACSPEC 2001 on February 14, 2002. The other allegations in this 

Case 2:02-cv-04373-RB Document 25 Filed 10/10/2002 Page 2 of 10
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paragraph relate to documents which speak for themselves and, therefore, any characterizations 

of those documents are denied.

10. Denied as stated. It is admitted that PAI has paid Toledo Mack for MACSPEC 

2001 and also that, in turn, Mack itself has been paid for PAI’s possession and use of MACSPEC 

2001.

11. Denied. Toledo Mack is without knowledge or information sufficient to form a 

belief as to the truth of the matters asserted in this paragraph.

12. Denied. The allegations in this paragraph constitute conclusions of law to which 

no response is required and, therefore, such allegations are deemed denied. 

COUNT I – INDEMNIFICATION 

13. The answers to the allegations contained in paragraphs 1 through 12 are 

incorporated herein by reference.

14. Denied. The allegations in this paragraph constitute conclusions of law to which 

no response is required and, therefore, such allegations are deemed denied. 

WHEREFORE, Toledo Mack, by and through its attorneys, Duane Morris LLP, 

respectfully prays for judgment in its favor and against PAI on PAI’s Crossclaims, and for an 

award of its costs incurred herein.

COUNT II – CONTRIBUTION 

15. The answers to the allegations contained in paragraphs 1 through 14 are 

incorporated herein by reference.

16. Denied. The allegations in this paragraph constitute conclusions of law to which 

no response is required and, therefore, such allegations are deemed denied. 

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WHEREFORE, Toledo Mack, by and through its attorneys, Duane Morris LLP, 

respectfully prays for judgment in its favor and against PAI on PAI’s Crossclaims, and for an 

award of its costs incurred herein.

COUNT III – BREACH OF CONTRACT

17. The answers to the allegations contained in paragraphs 1 through 16 are 

incorporated herein by reference.

18. Denied. The allegations in this paragraph constitute conclusions of law to which 

no response is required and, therefore, such allegations are deemed denied. 

19. Denied. The allegations in this paragraph constitute conclusions of law to which 

no response is required and, therefore, such allegations are deemed denied. 

WHEREFORE, Toledo Mack, by and through its attorneys, Duane Morris LLP, 

respectfully prays for judgment in its favor and against PAI on PAI’s Crossclaims, and for an 

award of its costs incurred herein.

COUNT IV – BREACH OF WARRANTY

20. The answers to the allegations contained in paragraphs 1 through 19 are 

incorporated herein by reference.

21. Denied. It is specifically denied that Toledo Mack provided any warranty to PAI 

regarding MACSPEC 2001. By way of further answer, the remaining allegations in this 

paragraph constitute conclusions of law to which no response is required and, therefore, such 

allegations are deemed denied. 

22. Denied. The allegations in this paragraph constitute conclusions of law to which 

no response is required and, therefore, such allegations are deemed denied. 

23. Denied. The allegations in this paragraph constitute conclusions of law to which 

no response is required and, therefore, such allegations are deemed denied. 

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WHEREFORE, Toledo Mack, by and through its attorneys, Duane Morris LLP, 

respectfully prays for judgment in its favor and against PAI on PAI’s Crossclaims, and for an 

award of its costs incurred herein.

AFFIRMATIVE DEFENSES TO CROSSCLAIMS

1. PAI’s Crossclaims fail to state a cause of action upon which relief may be 

granted.

2. PAI’s Crossclaims are barred in whole, or in part, by the doctrine of unclean 

hands. 

3. To the extent that Mack is successful on its Counterclaims, PAI’s Crossclaims fail 

and are barred as a result of PAI’s own bad faith and/or fraud as alleged in Mack’s 

Counterclaims against PAI.

4. PAI’s Crossclaims are barred by the doctrine of acquiescence.

5. PAI’s Crossclaims are barred to the extent PAI has failed to mitigate its damages.

6. PAI’s Crossclaims are barred by the doctrine of assumption of the risk.

7. PAI’s Crossclaims are barred by the doctrine of estoppel.

8. PAI’s Crossclaims are barred by the doctrine of waiver.

9. PAI’s Crossclaims are barred to the extent PAI is found liable on Mack’s 

Counterclaims for any act relating to and/or use of MACSPEC 2001 beyond the scope of any 

representations made to PAI, if any, by Toledo Mack.

WHEREFORE, Plaintiff and Crossclaim Defendant Toledo Mack, by and through its 

attorneys, Duane Morris LLP, respectfully prays for judgment in its favor and against PAI on 

PAI’s Crossclaims, and for an award of its costs incurred herein.

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CROSSCLAIMS AGAINST PAI 

1. Toledo Mack is an Ohio corporation with its principal place of business at 2124 

Front Street, Toledo, Ohio.

2. Upon information and belief, PAI is a Georgia corporation with its principal place 

of business at 950 Northbrook Parkway, Suwanee, Georgia.

3. This Court has jurisdiction over Toledo Mack’s Crossclaims pursuant to the 

doctrine of pendant jurisdiction.

4. This Court has jurisdiction over Toledo Mack’s Crossclaims pursuant to 28 

U.S.C. § 1367(a).

5. Jurisdiction over Toledo Mack’s Crossclaims against PAI is also supported by 

Rule 13(g) of the Federal Rules of Civil Procedure.

6. Venue over Toledo Mack’s Crossclaims against PAI is proper in this Court.

FACTUAL BACKGROUND

7. PAI is a customer of Toledo Mack and periodically purchases parts, including 

original Mack parts, from Toledo Mack.

8. Toledo Mack is an authorized distributor and dealer of Mack trucks and parts.

9. Mack Trucks, Inc. (“Mack”) authorized Toledo Mack to order copies of the 

MACSPEC 2001 for customers.

10. Toledo Mack ordered two copies of the MACSPEC 2001 from Mack, including 

one copy for PAI.

11. Toledo Mack did not open, use, or install the MACSPEC 2001 system.

12. Toledo Mack forwarded one copy of MACSPEC 2001 to PAI.

13. Mack alleges that Toledo Mack gave PAI the necessary unlock code to install the 

MACSPEC 2001.

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14. Toledo Mack did not supply PAI with the unlock code.

15. On information and belief, PAI obtained the necessary unlock code from Mack or 

Mack’s agents.

16. To the extent that PAI fraudulently obtained the unlock code for the MACSPEC 

2001 from Mack, PAI is liable to Toledo Mack for any damages found to have been suffered by 

Mack.

17. Toledo Mack did not obtain a replacement disk for the MACSPEC 2001 for PAI. 

18. Mack alleges that, when ordering a replacement disk from Mack, PAI falsely 

claimed to Mack that it was an authorized distributor named “Nancy’s Trucking” and provided a 

false mailing address.

19. To the extent that PAI fraudulently obtained a replacement disk for the 

MACSPEC 2001 from Mack, PAI is liable to Toledo Mack for any damages found to be suffered 

by Mack.

20. Toledo Mack provided a copy of MACSPEC 2001 to PAI solely to assist in 

ordering parts from Toledo Mack and did not authorize PAI to use MACSPEC 2001 in the 

manner alleged by Mack or have any knowledge of such alleged conduct.

21. Mack alleges that PAI is now using the MACSPEC 2001 to destroy Mack’s after 

market parts business.

22. Mack further alleges that PAI is now using the MACSPEC 2001 to steal Mack’s 

trade secrets, confidential business information, and intellectual property.

23. To the extent that PAI has misappropriated the trade secrets and/or confidential 

business information of Mack, PAI is liable to Toledo Mack for any damages found to be 

suffered by Mack.

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24. Mack alleges that PAI distributes, copies, and prepares derivative works based on 

the MACSPEC 2001. 

25. To the extent that PAI has infringed any copyright Mack has in the MACSPEC 

2001, PAI is liable to Toledo Mack for any damages found to be suffered by Mack.

26. To the extent that PAI fraudulently induced Toledo Mack to send PAI a copy of 

the MACSPEC 2001, PAI is liable to Toledo Mack for any damages found to be suffered by 

Mack.

COUNT I – INDEMNIFICATION

27. Toledo Mack incorporates Paragraphs 1 through 26 of its Crossclaims as if fully 

set forth therein.

28. To the extent that Toledo Mack is found to be liable to Mack because of PAI’s 

acquisition, possession, or use of the MACSPEC 2001 system, a replacement disk, or its unlock 

codes, PAI is liable to Toledo Mack for any damages found to be suffered by Mack.

COUNT II – CONTRIBUTION 

29. Toledo Mack incorporates Paragraphs 1 through 28 of its Crossclaims as if fully 

set forth herein.

30. To the extent that Toledo Mack is found to be liable to Mack because of PAI’s 

acquisition, possession, or use of the MACSPEC 2001 system, a replacement disk, or its unlock 

codes, PAI is liable to Toledo Mack for any damages found to be suffered by Mack.

PRAYER FOR RELIEF

WHEREFORE, Toledo Mack requests the following relief on its Crossclaims against 

Toledo Mack:

1. That the Court award Toledo Mack relief on all its Crossclaims in an amount to 

be determined at trial;

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2. That the Court award Toledo Mack compensatory damages from PAI in an 

amount to be proven at trial.

3. That the Court award Toledo Mack costs and attorneys’ fees as applicable; and

4. For such such other, further, or different relief as the Court may deem just and 

proper.

DUANE MORRIS LLP

Wayne A. Mack

Mark B. Schoeller

J. Manly Parks

James H. Steigerwald

One Liberty Place

Philadelphia, PA 19103-7396

215.979.1000

Attorneys for Toledo Mack Sales & Service, Inc.

Dated: October 9, 2002

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CERTIFICATE OF SERVICE

I, J. Manly Parks, certify that on this 9th day of October, 2002, I caused a true and correct 

copy of the foregoing Answer to the Crossclaims of PAI Industries, Inc. and Crossclaims of 

Toledo Mack Sales & Service, Inc. to be served via first class mail, postage prepaid, upon the 

following counsel of record:

John A. Baughman

Jeremy Heep

Barak A. Bassman

Pepper Hamilton LLP

3000 Two Logan Square

18th and Arch Streets

Philadelphia, PA 19103-2799

Joseph Schumacher

Kimberly Toomey

Wiggin & Dana LLP

1001 Hector Street

Conshohocken, PA 19428

Stephen M. Dorvee

Scott E. Taylor

Arnall Golden & Gregory LLP

2800 One Atlantic Center

1201 West Peachtree Street

Atlanta, GA 30309-3450

__________________________________________

J. Manly Parks, Esq.

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