HomeMy WebLinkAbout96-01303
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JERIlY R, DUFFIE
Rltlf.jRD w. STEWART
C. ~OY WEIDNER. JR-
EDMUND G, MYERS
DA VID W. DELUCE
IULPH /I, WRIGHT. JR,
DAVIDJ, t-lNZA
JOSEPH L. H/1CH/NGS
MARK C. DUFFIE
KEIRSTEN L. WALSH
LAW OFFICES
JOHNSON, DUFFIE, STEW ART & WEIDNER
A Professional Corporation
30t MARKET STREET
P.O. BOX t09
LEMOYNE, PENNSYLVANIA 17043.0109
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HOIUCE A, JOHNSON
OF COUNSEL
TELEPHONE 717-761-4S40
FACSIMILE 717-761-3015
e.MAIL: mail@jd.w.com
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FAX LETTER
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TO:
Shirley
Law Offices of Peter J. Russo
DATE:
FAX NO.:
July 17, 1998
(717) 249-4514
FROM: C, Roy Weidner, Jr,
RE: Chertok v, Ewing & Shelly
No. 98-1303 Civil Term
Cumberland Co,C.P.
PAGES: 1 of 3
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I have placed an .X' on all of the dates that I am not available for the arbitration of this
case. I will hold the dates that I am currently available until July 28, 1998, whereupon we will no
longer hold them. Indeed, we will then feel free to schedule other matters at the dates and
times set forth above,
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FAX TRANSMITTAL FORM
PeTER J. Russo. ESQUIRe
Law Offices of Peter J. Russo
81 West LDut/ler Street
Carlisle. PA 17013
OFFICE (717) 249-2721
FAX (717) 249-4514
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FAXNUM8ER: 7/.0/- .~I) / e::)
RECENER'S NAME: (I. .'J?o '1 I J ).p / J n.. "1 Jr .
COMPANY NAME: ~\oh....c.l)'" ~l""~;" I ~eu>n.~-\ ~11)D:cl /"lILt'"
TODAV'S DATE: ,-/1,,- tf'R
NO. OF PAGES INCLUDING THIS PAGE: 3
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PI. EASE CAU. SENDER AFTER yOU REVIEW THE F.~'"(
THE ORW1NAL HAS nEEN MAII.ED
AS YOU REQUE.fiTED
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Interoffice Memorandum
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TO: CRW
FROM:
RE:
JLR FILE COPY
Stephanie E, Chertok v. Linda M, Ewing and Martha K. Shelly
FN 2112-2
DATE:
June 25, 1998
.............................................................................................................
I contacted attorney Peler Russo's office wda)' In response to Carol Diehl's June 24,
;
1998 letter (see attached copy) regarding the abOVe listed matter, I spoke with Shirley who
Informed me that Carol Is out of the office until Tuesday, end that Shirley Is to take the
responses to Carol's June 24'" letter,
JIr.1121n
Attachment
I Informed Shirley that the only date that you have available out of the ones Carol listed
In her letter was August 31, 1998. You are scheduled for trials dlIring the week of August 3rd
and Hill, and you have depositions scheduled for August 281ll, Shirley said that Carol would
contact our office once a date was agreed upon by all counsel, or If more dates need to be
obtained.
I placed AUgen hold for this on all calendars until we receive word from Carol,
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Carl""., PA 17013 29J6
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PKONS, (717) 149.17ll
PAX, (717) 249-45 14
Friday, March 8, 1998
C. Roy Weidner, Jr.
Johnson, Duffle, Slewart & Weidner
301 Market Street
P. O. Box 109
Lemoyne, PA 17043-0109
Barbar. A. Zimmerman, ~qulr.
Zeigler & Zimmerman
355 North 21" Street
p, 0, Box 1080
Camp HIli. PA 17011
Debra K. Wallet
24 North 32M Street
Camp Hill, PA 17011
RE: STEPHANIE E. CHERTOK v. LINDA M. EWING AND MARTHA K. St:JELt.:t
RESCHEDULED ARBITRATION
No. 98.1303 Civil Term
Dear Counsel.
The Plaintiff, Defendant and their counsel are available on any of the
following dates for the above-captioned arbitration: AprIl 10, 13 and 24 and May
8. 22 and 29. This arbitration will very possibly take the whole day as Defendanh
counterclaim and Plalntifrs defense ICl thai counterclaim Is thought to be
extensive.
Please contact me and let me know which days are convenient for you so
we may get this rescheduled as soon as possible, Should you have any
questions or concerns, please feel free to contact me.
Very truly yours,
PJRlsal
~~~'L)no/s
Peter J. Russo
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ATTORNEY AT LAW
61 WC$1 Loulh.r Slleol
Carlisle, PA 17013-2936
OCfic..ln Harrl.burg, PA
PHONe: (717) 249-2721
FAX, (717) 249,4~ t4
Monday, January 19, 1998
C. Roy Weidner, Jr.
Johnson, Duffie, Stewart & Weidner
301 Markel Street
P. O. Box 109
Lemoyne, PA 17043-0109
Barbara A. Zimmerman, Esquire
Zeigler & Zimmerman
355 North 21,t Street
p, 0, Box 1080
Camp Hili, PA 17011
Debra K. Wallet, Esquire
24 North 321ld Street
Camp Hili, PA 17011
David A. Baric, Esquire
O'Brien, Barlc & Scherer
17 West Soulh Street
Carlisle, PA 17013
RE: STEPHANIE E. CI-IERTOK v. LINDA M. EWING AND MARTHA K. SHELLY
No. 96-1303 Civil Term
Dear Counsel,
I regret to Inform you that Mrs. Chertok's husband passed away this weekend
and as a result, we must ask for a continuance for the above captioned matter, The
arbitrators' hearing was scheduled for 9:00 a.m. on Tuesday, January 20, 1998. I
would appreciate your cooperation In this matter, I will arrange for the re-schedullng of
this matter in the coming days.
Thank you In advance for your cooperation. Should you have any questions
concerning this matter, please feel free to contact me.
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Very truly yours,
--=8, /. ~" Nl~:5,L
Peter J. Russo
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RICHA1<D W SnW^RT
c. ROY WEIDNEIl, Ill.,
EDMUND C MYERS
D^VID w, D,WCE
MLPH H, WRIGHT, Ill.,
D^VID I, LAN~
lOSEPH L, HITCHINGS
MAAK C DUffiE
KEI~ TEN L, W ^LSH
LAW OFfiCES
JOHNSON, DUFFIE, STEWART & WEIDNER
A Prof.ulanal Corporal&on
301 MARKET STREET
P. O. BOX 109
LEMOYNE, PENNSYLVANIA 17043.0109
HOMC! A lOHNSON
0, COIJN\IL
TlLIPHONI717.761.H40
MCSIIolILI717.76I,)015
I.MAIL m.lIOjd.w.com
January 13, 1998
Debra K, Wallet, Esquire
24 North 32nd Street
Camp HIli, PA 17011
Peter J. Russo, Esquire
61 West Louther Street
Carlisle, PA 17013
Barbara A. Zimmerman, Esquire
Zeigler & Zimmerman
355 North 21" Street
P,O. Box 1080
Camp Hili, PA 17011
Re: Stephanie E. Chertok v. Linda M. Ewing and Martha K. Shelly
No. 96-1303 Civil Term
Cumberland Co,C.P.
David A, Baric, Esquire
O'Brien, Baric & Scherer
17 West South Street
Carlisle, PA 17013
Dear Counsel:
As you know, we have the arbllrators' hearing in the above captioned Malter scheduled
to start at 9:00 a.m. on Tuesday, January 20, 1998 at my office.
I have justleamed that I am to be before Judge Klinefelter at a pre-trial conference on a
case that I have on the trial list in Dauphin County for the January term beginning at 11 :30 that
momlng.
In view of this development, my plan is as follows:
1. To start our arbitrators' hearing promptly at 9:00 a.m.;
2. , adjourn at 11 :00 a.m., so that I can attend the pretrial conference;
3. to reconvene, if necessary, at 12:30 p.m. to complete the hearing.
I am not interested in rescheduling this hearing after what we went through to get it scheduled In
the first place. However, If anybody has any overwhelming difficulties, I would be willing to
move the starting time to 8:00 a.m. or to consider some other accommodation.
~
Debra K. Wallet, Esquire
Peter J. Russo. Esquire
Barbara A. Zimmerman, Esquire
David A. Baric, Esquire
January 13, 1998
Page 2
In any event, these are my thoughts and plans as to how we will proceed In light of this
development.
FIE, STEWART & WEIDNER
Jlr: 1 05341
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RECEIVED
O'BRIEN, BARIC & SCHERER
Rob." L O'Bri."
David II, Barlc
Mlcha.1 II, Sch.rtr
OCT 06 1997 17 U'm,\'I/III,Slml
Carli.,le. 1'."11."'/v",,,,, 1701 J
JOHNSON. DUfFIE .
STEWART I-ND WEIDNER
S/~n!" J. FiJllmatJ
OfCaun...1
(717) 149-6873
r;.l\' (717) 149.$7.U
October I, 1997
./ C. Roy Weidner, Jr" Esquire
Johnson, Duffie, Stewart & Weidner
301 Market Street
P.O, Box 109
Lemoyne, PA 17043-0109
Barbara A. Zimmerman, Esquire
Zeigler & Zimmerman
355 North 21st Street
PO Box 1080
Camp Hill, PA 17011
Debra K. Wallet, Esquire
24 North 32nd Street
Camp Hill, PA 17011
Peter Russo, Esquire
61 West Louther Street
Carlisle, PA 17013
RE: Stephanie E. Chertok v. Linda M. Ewing et al.
No. 96-1303 Civil Term
C.C.P. Cumberland County
Dear Counsel:
The discovery issue which had delayed the arbitration of this matter bas now been
concluded and, pursuant to Mr, Weidner's request, [ am providing this correspondence to
schedule the arbitration.
Based upon the work of my clients which accelerates in the fall leading to the holiday
season, I am requesting that this matter be scheduled for arbitration after January I, 1998.
Additionally, I would prefer to schedule this arbitration for an afternoon.
Enclosed find a calendar for the month of January, 1998, Please indicate on the calendar
the days that you presently would be available and return the calendar to me in the enclosed
envelope. I will notifY you of the mutually acceptable dates as soon as I have received all of your
responses.
Thank you for your attention to this maller,
Very truly yours,
DAB/jc
Enc,
cc: File
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Should you have any questions or concerns, please feel free to contact me.
Very truly yours,
GlJ;-(V
Peter J. Russo
PJR/paw
I_I ." 96-0045
cc: C. Roy Weidner, Jr., Esq,
Debra K. Wallet, Esq.
Barbara A, ZImmerman, Esq,
Stephanie e, Chertok, Esq.
l.oJwOfj1m r~:CEIVE
O'BRIEN, BARIC" ,SCHERER 0
17 We," Soulh SI'~t1 JUN I R lQQ7 KemloJwn SquoJ'"
CoJrll,l/., l'mlUylvoJllloJ 170/3 ChoJlllbe"burg. PA
.' ., ;'30N. DUFFIe (717) 267-2927
, '., ,11 AND weIDNER
Reply 101
CoJrllJ/e Ofj1ci
Rub..' L. O'Brlell
David A, Baric
Allchad .I. Sche,..,r
(717) 2~9.1lS7J
I.:-tr (717) 149.5755
June 16, '997
C, Roy Weidner, Jr, Esquire
Johnson, Duffie, Stewart & Weidner
30 I Market Street
P,O. Box 109
Lemoyne, PA 17043-0109
RE: Stephanie E. Chertok v. Linda Ewing and Martha Shelly
Dear Mr, Weidner,
I have received and reviewed your correspondence of June 13, 1997 regarding the
arbitration in the above matter,
I would note that I was not contacted by your offices regarding the scheduling of this
matter apart from your prior correspondences and, consequently, had no opportunity to discuss
this matter with anyone in your office,
Several weeks ago I invited Mr. Russo to come to my office to review the few documents
which he asked to see in preparation for the trial of this matter. As of the date of this
correspondence, he has failed to appear or schedule a time to review those documents. I certainly
take exception to any contention that this matter was prematurely listed,
In the event Mr. Russo fails to review the documents he has requested within the next
three (3) weeks, I will contact the members of the panel to schedule the arbitration. Thank you
for your attention to this matter,
Very truly yours,
rt\
O'BRIEN, BARIC AND SCHERER
~~~,
David A, Baric, Esquire
DAB/jc
cc: Debra K. Wallet, Esq,
Barbara A. Zimmerman, Esq,
Peter Russo, Esq
File
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RICHARt) W Ht\~^R r
C ROY WEI[Jf'JER, IR
!OMUNb r::. MYER ')
DAVID W De.LUCE
R.ALPH H WRIGHr, IR
DAVID I LANZA
JOSEPH l. HI rCHINC5
t..MRK C DUFFIE
JOHNSON, DUFFIE, STEWART & WEIDNER
A Pro(~uilln..1 CtJrponmon
lOI MARKET STREET
P O. BOX 109
LEMOYNE, PENNSYLVANtA 17043-0t09
H()tt.~CE ..\ IOHNVJN
RECEIVEOO' COUN'.H
TJiLEPHONE 711.761 - .5.w
FACSIMILE 717.761- 10li
JUN 0 4 IQQ7
JOHrl:;ilIN, DUPFle
S TEWARr\NO welONIFI
May 28, 1997
,Peter J. Russo, Esquire
V 61 West Louthar Straet
Carlisle, PA 17013
Debta K, Wallet, Esquire
24 North 32nd Street
Camp Hill, PA 17011
David A. Banc, Esquirtl
O'Brien, Baric & Scherer
17 West South Street
Carlisle, PA 17013
Barbara A. Zimmerman, Esquire
Zeigler & Zimmerman
355 North 21st Street
P.O. Box 1080
Camp Hill, PA 17011
@
Re:
Stephanie E, Chertok y, Linda M, Ewing and Martha K. Shelly
No, 96-1303 Civil Term
Cumberland CO,C,p,
Dear Counsel:
We have found it ever more difficult to schedule arbitrations by attempting to
telephone the offices of the attorneys and atbitrators to obtain advance clearance of dates.
According, listed below are several dates during the month of August that I would be available
to chair an arbitration hearing in the above teferenced matter.
Friday, August 1, 1997 @ 2:00 p.m.
Monday, August 4, 1997 @ 9:00 a,m, ')(
Friday, August 8, 1997 @ 2:00 p.m,
Monday, Aug'Jst 11, 1997 @ 9:00 a.m. )(
Friday, August 15, 1997 @ 2:00 p.m.
Please place an "X. next to those mornings or afternoons when you are available to
attend the arbitration, which will be held in our offices. Then, return a marked up copy to me
via the enclosed preaddressed, envelope no later than June 11, 1997.
In the event that I do not receive dates of your availability by that date, I will
conclusively presume that any date will be acceptable to you, and schedule the arbitration
accordingly. I will attempt to schedule the arbitration for the earliest date available to all
arbitrators and counsel involved.
We will greatly appreciate your assistance in our attempt to get this scheduled with
the least amount of time being taken up administratively as possible in doing so.
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STEPHANIE E. CHERTOK,
Plaintiff
IN HIE COURT OF COMMON PL.EAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS,
NO, 96-1303
LlNDA M EWING and
MARTHA K SHELLY,
Defendants
: CIVIL ACTION - LAW
CERTIFICATION OF SERVICE
I bereby certitY that on MarchLl', 1997. I. David A. Baric, Esquire, of O'Brien, Baric
& Scherer, did serve a copy of the Petition For Appointment Of Arbitrators, by first class US, mail,
postage prepaid, to the party listed below, as follows:
PETER J RUSSO, ESQUIRE
61 WEST LOUTHER STREET
CARLISLE, PENNSYLVANIA 17013
~~tf.
David A. Baric, Esquire
Attorney for Defendant
Date: March Ie; , 1997
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QfiflATIVE FACTS
4. In mid-November of 1995, Plaintiff. Stephanie E. Chertok approached the
Defendants regarding the possibility of starting Carlisle's first bagel business,
5. Plaintiff met with the Defendants to discuss the details of Plaintiffs proposal
on or about Friday. November 17, 1995. and Tuesday. November 21, 1995,
6, During the November 21. 1995 meeting. the parties discussed the basic
terms of the proposed partnership agreement.
7, On or about November 21, 1995, Defendants presented Plaintiff with the
Partnership Agreement they had unilaterally prepared,
8, On or about November 21. 1995, Plaintiff entered into the Partnership
Agreement with Defendants to form Carlisle Bagel. under whose terms. Plaintiff agreed
to allow her good will to be utilized. personally arranged and paid for acfvertlsing In the
form of newspaper acfvertlsing. radio advertising. window displays. and signage. as well
as agreed to work at the counter of the store on Sundays,
9, Under the terms of the Partnership Agreement. Defendants agreed to
provide. among other items. the facility and weekly labor from Monday through Saturday,
10, The parties, as equal partners. agreed to distribute all profits in the following
manner; fifty percent (50%) of all prof!ts to Stephanie E, Chertok. and fifty percent (50%)
of all profits to Unda M, Ewing and Martha K Shelly,
11. Carlisle Bagel opened on Friday, December 1, 1995.
12. Plaintiffs share of profits for December, 1995 was $505.00.
2
13, Plaintiffs share of profits for January, 1995 was $505.00.
14, On or about Sunday, February 25, 1996, Defendant Shelly terminated the
partnership relationship by repeatedly stating to the Plaintiff, 'We're not doing it any
more, Just get out,"
15, On or about Monday, February 26,1996, the Defendants placed a note on
the mailbox of Roger Spitz, a business associate of the Plaintiff, directing Mr. Spitz to
remove the counter that Plaintiff han brought Into the bagel store.
16, The noted placed In Mr, Spitz's mailbox also demanded the return of the
key to the door of the bagel store,
17. On or about Monday, February 26,1996, Defendants posted a handwritten
sign scribed by Defendant Ewing, announcing the new business name, Miss Garbo's
Bagel and Bake Shop,
18. The Defendants continued to sell bagels in the same location as the
partnership was located during the same hours, utilizing the adver.ising materials that
had been prepared by the Plaintiff,
19, On or about March 1, 1996, the parties signed a Dissolution Agreement,
which distributed the partnership assets,
COUNT I
BREACH OF CONTRACT
20, Plaintiff rea lieges each and every allegation contained in paragraphs 1-19
of this Complaint and incorporates them herein by reference as if the same were set forth
3
27. Defendants engaged in unprivileged conduct which had an adverse effect
on the Plaintiff, Carlisle Bagel and its relationship with its customers, which included, but
is not limited to, the following conduct:
a. On many occasions after the grand opening of Carlisle Bagel,
Plaintiff would find that the Defendants had locked the store door contrary to the
advertised hours of operation; and
b, Plaintiff had expressed her concems to the Defendants regarding the
fact that the store hours were advertised and the public expected the business to
be open: and
c. Defendants informed Plaintiff that their catering business must come
first, that they had no choice but to lock the door and that they would continue
to do so; and
d, Plaintiff believes and therefore avers that persons trying to patronize
the bagel store were treated badly by the Defendants: and
e. Plaintiff became aware of an incident where a local businessman
attempted to buy a quantity of bagels each moming to sell at his business, but
was rebuffed by Defendant Ewing, as Defendant Ewing stating that she would not
deal with this customer based on her military experiences in Egypt and stated that
she did not care for Middle Eastem men such as this patron; and
f, Customers contacted Plaintiff stating that on several occasions, when
attempting to purchase bagels from Carlisle Bagels, they arrived during the posted
business hours only to find the door locked: and
5
g. In mid-December, Defendant Ewing informed Plaintiff of an
opportunity to sell large quantities of bagels to the Officer's Club at Carlisle
Barracks, yet refused to do business with the Carlisle Barracks since some prior
dealings did not work out; and
h. Plaintiff was informed that a neighbor of the business was purchasing
bagels and juice each morning at another establishment, Defendant Ewing stated
that the customer was not welcome in the stor" and she informed this patron that
he could "kiss her ass;" and
i, When Plaintiff became aware that the Defendants were not using a '
receipt tape in the store's cash register, Plaintiff requested that a receipt tape be
used but. over the constant objections of the Plaintiff, Defendants staunchly
refused to utilize a receipt tape; and
j. Defendant Ewing also informed the Plaintiff that the landlord. Dennis
Gotthard. and his brother Mark were not welcome as patrons of Carlisle Bagel.
due to Defendant Ewing's personal feelings toward the two men,
28. Plaintiff believes, and therefore avers that Defendants' conduct was
intentionally designed to eliminate Plaintiff as a business partner and destroy the
relationship the Plaintiff had developed with customers of Carlisie Bagel. as well es the
general public,
29. The Defendants' unprivileged and adverse conduct caused several
customers to take their business elsewhere, thereby resulting in Carlisle Bagel's loss of
income and Mure business,
6
WHEREFORE, Plaintiff, Stephanie E. Chertok, respectfully requests this Honorable
Court to enter judgment against Defendants, Unda M. Ewing and Martha K Shelly, in
addition to costs of suit, interest and attorney fees.
COUNT III
ACTION FOR DECLARATORY JUDGMENT
30. Plaintiff rea lieges each and every allegation contained in paragraphs 1-29
of this Complaint and incorporates them herein by reference as if the same were set forth
at length.
31. Plaintiff pleads in the alternative that there is now existing between the
parties an actual justiciable controversy concerning which Plaintiff is entitled to have a
declaration of her rights because of the facts, conditions and circumstances set forth in
averments 1-30,
32. Plaintiff seeks in the altemative, a declaration from this Court as to the
respective rights of the parties under the Partnership Agreement, a determination as to
the Plaintiff is entitled to for the alleged contractual violation, and, the extent of such
damages,
WHEREFORE, Plaintiff seeks a declaration under the Declaratory Judgments Ad,
42 Pa,C,S, !7531, et seq. establishing that Defendants' conduct was in breach of the
Partnership Agreement between the parties and/or, alternatively, establishing the extent
of the Defendants' liability.
7
STEPHANIE E, CHERTOK,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 96-1303
v.
LINDA M, EWING and
MARTHA K. SHELLY,
: CIVIL ACTION-LAW
Defendants.
NOTICE TO PLEAD
TO: Stephanie E. Chertok
by her attorney, Peter 1. Russo, Esquire
Olde English Gap
845 Sir Thomas Court, Suite 9
Harrisburg, Pennsylvania 17109
You are hereby notified that you have twenty (20) days in which to plead to the enclosed
New Matter and Counterclaim or a Default Judgment may be entered against you.
O'BRIEN, BARIC & SCHERER
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Date: t,/~~/i~
, ..
David A. Baric, Esquire
I,D, #44853
17 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
6. Denied as stated, Defendants are without knowledge or information sufficient to
form a belief as to the date of a meeting with the Plaintiff, however, Defendants do recall a
meeting at which Plaintiff and the Defendants discussed generally the operation of a business
which would sell bagels.
7, Denied. By way of further answer, the Defendants provided to the Plaintiff a copy
of a partnership agreement previously entered into by the Defendants wbich document Plaintiff
reviewed and then agreed to as an appropriate document for the formation of a partnership as
between Plaintiff and Defendants,
8. Admitted in part and denied in part, Admitted that the document attached to the
Amended Complaint is a true and correct copy. With respect to the terms of the PlU1nership
Agreement, the Agreement speaks for itself It is specifically denied that Plaintiff possessed any
good will, Moreover, Plaintiff represented that she possessed expertise in marketing which, it
became readily apparent, did not exist.
9. Denied as stated, With respect to the terms of the Partnership Agreement, the
document speaks for itself. Additionally, the parties had recognized and agreed that the Plaintiff
would provide her labor to cover operations of the business when the Defendants were
unavailable or, alternatively, the facilities would have to be temporarily closed when Plaintiff was
unavailable or unwilling to cover absences of tbe Defendants,
10. Denied, By way of further answer, Plaintiffintbrmed Defendants that one-half of
her profits were intended for and would be conveyed to Roger Spitz,
11. Admitted,
12 Denied, By way oflUrther answer, a distribution of$SOS,OO was made to Plaintiff
at the end of January, 1996 which distribution included the months of January, 1996 and
December, 1995,
13, Denied, By way oflUrther answer, a distribution of$SOS,OO was made to Plaintiff
at the end of January, 1996 which distribution included the months of January, 1996 and
December, 1995.
14, Denied. By way oflUrther answer, in January, 1996, Plaintiff was informed that
the Defendants would be moving from the building in which they operated a restaurant and the
bllgel business in or about May, 1996. On February 2S, 1996, the Plaintiff and Defendant, Martha
Shelly, became involved in a dispute as to tbe operation of the business. Defendant, Martha
Shelly, left the premises and was asked by Plaintitrwhen Ms, Shelly would return and if Ms.
Ewing would accompany her. When the Defendants returned to the premises some hours later,
they discovered that the Plaintiff had removed all of the materials of the partnership and had
withdrawn unilaterally all proceeds of the business from the cash register,
IS, Admitted that the Defendants left a note on the mail box of Roger Spitz, who
resided with the Plaintiff in an apartment above the re~taurant and was, as Plaintiff stated, a "silent
partner" in the bagel business, requesting the Plaintiff to remove a counter Plaintiff had placed in
the restaurant and had tailed to remove when she removed all of the property of the partnership
and cash from the cash register, Additionally, the Defendants requested that tbe Plaintiff return
the key to the premises,
16, Admitted.
27, Denied. By way of further answer, Defendants at aJltimes operated the business in
11 fashion consistent with the Partnership Agreement and the understandings of the parties to the
Partnership Agreement. Defendants never conducted the business in a manner adverse to the
interest of the partnership,
a, Denied, By way of further answer, Plaintiff was aware that the business
would be closed on occasion when the Defendants were called from the business premises and
Plaintiff refused or failed to cover the absence,
b. Denied, By way of further answer, Plaintiff was aware that the business
would be closed on occasion when the Defendants were called from the business premises and
Plaintiff refused or failed to cover the absence, It is denied that the Plaintiff ever expressed any
concern to the Defendants as stated,
c, Admitted in part and denied in part, It is admitted that prior to the
execution of the Partnership Agreement, the Defendants informed Plaintiff tbat on occasion that
the Defendants catering business required the Defendants to leave the premises of the restaurant.
d. Denied,
e, Denied, By way of further answer, Defendants never refused to sell bagels
to any customer who was willing to pay for the product at a reasonable price,
f After reasonable investigation, Defendants are without information or
knowledge sufficient to form a belief as to the truth of this averment and it is, therefore, denied.
g, Denied, By way of further answer, the Defendants routinely have and
continue to provide services through their catering operation to government agencies, Moreover,
there is no such entity as the "Officer's Club" known to Defendants,
advertisement is attached hereto as Exhibit "en and is incorporated by reference.
(b) Denied, By way of further answer, the business of the partnership was
terminated with the execution of the dissolution agreement which was drafted by Plaintiff and
entered into at the request of Plaintiff No compensation was due the Plaintiff
WHEREFORE, the Defendants pray this Court to enter judgment in their favor and
against the Plaintiff together with costs thereon,
COUNT IV
BREACH OF FIDUCIARY DUTY
31. The responses to paragraphs one through thirty-one above are incorporated herein
as though fully set forth.
32. Denied as constituting a conclusion oflaw to which no response is required,
Should a further response be required, it is denied that a fiduciary relationship existed as amongst
the parties.
33, Denied. By way of further answer, tbe Defendants breached no duty, fiduciary or
otherwise to the Plaintiff
WHEREFORE, the Defendants pray this Court to enter judgment in their favor and
against the Plaintiff together with costs thereon,
COUNT V
ACTION FOR DECLARATORY JUDGMENT
34. The Defendants incorporate herein by reference thereto the responses as set forth
in paragraphs one through thirty-four as though set forth at length.
35. Denied. By way of further answer, for the reasons set forth hereinabove and
below at Defendants' New Matter, no justiciable issue exists from Plaintiff's Amended Complaint.
36, Denied By way of further answer, it is specilically denied that any "contractual
violation" occurred or that PlaintilT sulTered any damage
WHEREFORE, Defendants pray this Court to enter judgment in their favor and against
the Plaintiff, alternatively, to lind that no breach occurred and Defendants' have no liability to
Plaintiff
NEW MA TIER
37. The PlaintilTis a licensed attorney within the Commonwealth of Pennsylvania,
38. At the inception of the partnership, PlaintilTagreed to pay for appropriate
advertising for the business in a dollar amount which was equal to tbe value oflabor and services
to be supplied by the Defendants to the business.
39, PlaintilT failed to provide advertising expenditures for the business in the amount
agreed upon.
40. Prior to the execution of the partnership agreement, the Defendants owned and
operated a catering business and restaurant at 22 S, Hanover Street in Carlisle, Pennsylvania. The
bagel business was to be run simultaneously in the same property,
41, PlaintilT had approached the Defendants about the bagel business several times
over the course of approximately one year prior to the execution of the Partnership Agreement.
42. Prior to execution of the Partnership Agreement, the PlaintilT had approached
other individuals and businesses about the bagel business and had been unsuccessful in linding a
business partner,
43, At the inception of the partnership, Plaintill' was informed that the preexisting
catering business of the Defendants would take priority over the bagel business and PlainlilTwas
fin1her informed that if called upon to leave the premises for catering work, the Defendants would
temporarily close the premises unless the Plaintiff could work at the premises while the
Defendants were called away,
44. Plaintiff repeatedly represented to Defendants that Roger Spitz was a "silent
partner" in the business and Plaintiff held his and her interest in the business in Plaintiff's name
because of a pending divorce matter involving Roger Spitz,
45. Roger Spitz was authorized to sign checks of the business,
46. The bagel business initially relied upon the contacts and connections of the
preexisting business of the Defendants to establish credit with vendors and suppliers.
47. The Plaintiff and her silent partner, Roger Spitz, held the checkbook for the
business account of Carlisle Bagel.
48. Throughout the course of the business, Plaintiff and Roger Spitz were late writing
checks to vendors and suppliers which practice threatened the relationship of vendors to the
preexisting business of the Defendants,
49. The Plaintiff often closed the business on the Sundays she worked earlier than the
established hours of operation.
50. Prior to entering into the Partnership Agreement, the Plaintiff represented to the
Defendants that she possessed superior knowledge and experience in advertising and marketing of
a business.
51. In late February, 1996, a customer presented himself to the Defendants and
informed the Defendants that he had reached an agreement with Roger Spitz for the purchase of
bagels from the business, Defendants discovered that the terms of the alleged agreement would
result in the business selling its products at a loss,
52. The parties entered into the Dissolution Agreement which was an accord and
satisfaction as to the clairns asserted by Plai~tiff, alternalively, the Dissolution Agreement was a
release as to the claims asserted by Plaintiff
53. The Plaintiff consented. by her act and deed, 10 the actions of the Defendants.
54. The Defendants were justified in all of their actions regarding the partnership based
upon the conduct of the Plaintiff.
55, The Plaintiff is estopped from asserting her positions now taken based upon the
Defendants' justifiable reliance and detriment incurred from prior inconsistent acts and deeds of
the Plaintiff
56. Plaintiff had no contractual relationship with third parties upon which she may
claim interference with a business relationship.
COUNTERCLAIM
NOW COME Defendants, Counter-Plaintiffs, Linda M. Ewing and Martha K. Shelly, and
set forth the following in support of their Counter-Complaint:
57, Linda M. Ewing and Martha K. Shelly, Counter-Plaintiffs, are adult individuals
residing in Cumberland County, Pennsylvania,
58. Stephanie E. Chertok, Counter-Defendant, is an adult individual residing in
Cumberland County, Pennsylvania, ','
59. Linda and Martha did, for the period April, 1992 through April, 1996, operate a
restaurant business known as "Miss Garbo's", The principal place of business for Miss Garbo's
was 22 South Hanover Street, Carlisle, Cumberland County, Pennsylvania,
60. Linda and Martha have, since February, 1991, operated a catering business known
as "Carlisle Catering", The principal place of business for Carlisle CaterinS'Nas, for the period
February, 1991 through April, 1996,22 South Hanover Street, Cumberland County,
PeMsylvania,
61. Over the course of approximately one year prior to execution of the Partnership
Agreement (appended to the Amended Complaint as Exhibit "An and incorporated herein by
reference), Ms, Chertok repeatedly requested Linda and Martha to enter into a business to sell
bagels from the Counter-PlaintilTs' facility at 22 South Hanover Street.
62. At or about the time of execution of the Partnership Agreement, Ms, Chertok
agreed that she would make advertising expenditures of $200,00 per week to support the business
which expenditures were intended to approximate the value of labor and services which would be
supplied by the Counter-Plaintiffs to the business.
63. At or about the time of execution of the Partnership Agreement, Ms. Chertok
represented to Counter-PlaintilTs that she possessed superior knowledge, skill and expertise in
marketing of products,
64. At or about the time of execution oftbe Partnership Agreement, Ms, Chertok was
aware of the Counter-PlaintilTs' catering business and Ms. Chertok agreed that she would be
available to work at the business when the Counter-PlaintilTs were called from (he premises to
perform catering work and, further, that she would work alternating Saturdays.
65, The Ms, Chertok was at all times aware of the Counter-PlaintilTs' operating a
restaurant and catering business from tbe premises at 22 South Hanover St., Carlisle, PA.
66, Beginning in January, 1996, Ms. Chertok failed and refused to work alternating
Saturdays and failed to work on those occasions when the Counter-Plaintiffs were involved in
catering activities away from the premises,
67. In January, 1996, the Counter-Plaintiffs informed the Counter-Defendant that as of
May 1,1996, the Counter-Plaintiffs would be moving from the premises at 22 South Hanover St.,
Carlisle, PA.
68, On or about February 25, 1996 Martha Shelly asked Ms. Chertok why the she had
failed to show for work on any Saturday in February, Martha Shelly indicated that she would
return later that day to discuss the business along with Linda Ewing,
69. Upon returning to the premises several hours later, Linda and Martha discovered
that Ms. Chertok had unilaterally removed all of the promotional materials of the partnership and
had emptied the cash register of receipts.
70. On Monday, February 26, 1996, Linda and Martha were informed by a third-party
that Ms. Chertok had requested that the business be dissolved and had set in motion such a
dissolution.
71. Immediately subsequent to the execution of the Dissolution Agreement, Ms.
Chertok set about upon a course to mislead and misinform the general public that the businesses
operated by Linda and Martha at 22 South Hanover St. in Carlisle were closed. This campaign of
misinformation included, but was not limited to, publishing Exhibit "C" repeatedly in newspapers
of general circulation in Cumberland County,
76 Subsequent to the execution of the Dissolution Agreement, Linda and Martha
continued to operate Miss Garbo's and Carlisle Catering from 22 South Hanover St, Carlisle,
PeMsylvania.
77. The Counter-Defendant was aware that Linda and Martha were continuing to
operate their preexisting businesses from the former location of the partnership business.
78. Through use of !he advertisement appended as Exhibit "C" and by other means,
Ms. Chertok set about to lead the general public to believe that the businesses located at 22 South
Hanover Street were closed.
79. It was reasonably foreseeable that the advertisements and other activities of Ms.
Chertok would lead the general public to believe that no business was being conducted from 22
South Hanover Street
80. Ms. Chenok owed a duty to Linda and Martha not to deceive the general public
into believing that Miss Garbo's and Carlisle Catering were no longer operating or to interfere
with the Counter-Plaintiffs' conducting of business from 22 South Hanover Street, Carlisle.
81. The actions of Ms. Chertok were a breach of her duty to Linda and Martha.
82. The actions of Ms. Chertok were the direct and proximate cause of damages to the
businesses of Linda and Martha which damages included, but were not limited to the following:
(a) causing Miss Garbo's to close one month prior to the anticipated closing as a
result of a diminution of business for the restaurant;
(b) causing Carlisle Catering to suffer a dramatic reduction in the amount of
business typically enjoyed by the business;
o reducing the amount of business typically enjoyed by the restaurant; and
(d) divers other injuries.
WHEREFORE. Counter.Plaintiffs pray that this Court enter judgment in their favor and
against the Counter-Defendant in an amount in excess of an amount requiring compulsory
arbitration and in an amount in excess of twenty thousand ($20,000.00), plus interest, costs and
reasonable attorney fees.
Respectfully submitted.
O'BRIEN, BARIC AND SCHERER
ByA~c: ~.
David A. Baric, Esquire
10# 44853
17 West South Street
Carlisle, PA 17013
(717) 249-6873
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OPERATIVE FACTS
4. In mid-November of 1995, Plaintiff, Stephanie E. Chertok approached the
Defendants regarding the possibility of slarting Carlisle's first bagel business.
5. Plaintiff met with the Defendants to discuss the details of Plaintiff's proposal
on or about Friday, November 17,1995, and Tuesday, November 21,1995.
6. During the November 21, 1995 meeting, the parties established the basic
terms of the proposed partnership agreement.
7. On or about November 21, 1995, Defendants presented Plaintiff with a
Partnership Agreement they had unilaterally prepared and suggested it be used to form
the actual Partnership Agreement.
8. On or about November 21, 1995, Plaintiff entered into a Partnership
Agreement with Defendants to form Carlisle Bagel, under whose terms, Plaintiff agreed
to allow her good will to be utilized, personally arranged and paid for advertising In the
form of newspaper advertising, radio advertising, window displays, and signage, as well
as agreed to work at the counter of the store on Sundays. A true and correct copy of
the Partnership Agreement is attached and Incorporated herein as exhibit "A,"
9. Under the terms of the Partnership Agreement, Defendants agreed to
provide, among other items, the facility and weekly labor from Monday through Satl4day.
10. The parties, as equal partners, agreed to distribute all profits in the following
manner: fifty percent (50%) of all profits to Stephanie E. Chertok, and fifty percent (5O'lE.)
of all profits to Unda M. Ewing and Martha K. Shelly.
2
11. Carlisle Bagel opened on Friday, December 1, 1995.
12. Plaintiff's share of profits for December, 1995 was $505.00,
13. Plaintiff's share of proflts for January, 1995 was $505.00.
14. On or about Sunday, February 25, 1996, Defendant Shelly terminated the
partnership relationship by repeatedly stating to the Plaintiff. 'We're not doing It any
more. Just get out."
15. On or about Monday, February 26,1996, the Defendants placed a note on
the mailbox of Roger Spitz. a business associate of the Plaintiff, directing Mr. Spitz to
remove the counter that Plaintiff had brought Into the bagel store.
16. The note placed on Mr. Spitz's mailbox also demanded the return of the key
to the door of the bagel store.
17. On or about Monday, FebruafY 26, 1996, Defendants posted a handwritten
sign scribed by Defendant Ewing, announcing the new business name, Miss Garbo's
Bagel and Bake Shop.
18. The Defendants continued to sell bagels in the same location as the
partnership was located during the same hours, utilizing the advertising materials that
had been prepared by the Plaintiff.
19. On or about March 1. 1996, the parties signed a Dissolution Agreement.
which distributed the partnership assets. A true and correct copy of the Dissolution
Agreement Is attached and Incorporated herein as Exhibit "B."
3
25. Plaintiff established a business relationship with bona fide third parties,
including, but not limited to, the general public.
26. Plaintiff had a reasonable expectation of economic gain from the purchases
patrons would make from Carlisle Bagel.
27. Defendants engaged in unprivileged conduct which had an adverse effect
on the Plaintiff. Carlisle Bagel and Its relationship with Its customers, which Included, but
is not limited to, the following conduct:
a. On many occasions after the grand opening of Carlisle Bagel.
Plainti1t would find that the Defendants had locked the store door contrary to the
advertised hours of operation; and
b. Plaintiff had expressed her concerns to the Defendants regarding the
fact that the store hours were advertised and the public expected the business to
be open; and
c. Defendants Informed Plaintiff that their catering business must come
first, that they had no choice but to lock the door and that they would continue
to do so; and
d. Plaintiff believes and therefore avers that persons trying to patronize
the bagel store were treated badly by the Defendants; and
5
e, Plaintiff became aware of an Incident where a local busin8ssrnan
attempted to buy a quantity of bagels each morning to sell at his business, but
was rebuffed by Defendant Ewing, as Defendant Ewing slating that she would not
deal with this customer based on her mllilary experiences in Egypt and stated that
she did not care for Middle Eastern men such as this patron; and
f. Customers conlacted Plaintiff stating that on several occasions, when
attempting to purchase bagels from Carlisle Bagel, they arrived during the posted
business hours only to find the door locked; and
g. In mid-December, Defendant Ewing informed Plaintiff of an
opportunity to sell large quantities of bagels to the Officer's Club at Carlisle
Barracks, yet refused to do business with the Carlisle Barracks since some prior
dealings did not work out; and
h. Plaintiff was informed that a neighbor of the business was purchasing
bagels and juice each morning at another establlllhment, Defendant Ewing slated
that the customer was not welcome In the store and she informed this patron that
he could "kiss her ass;" and
i. When Plaintiff became aware that the Defendants were not using a
receipt tape in the store's cash register, Plaintiff requested that a receipt Iape be
used but, over the constant objections of the Plaintiff, Defendants staunchly
refused to utilize a receipt tape; and
6
j. Defendant Ewing also informed the Plaintiff that the landlord, Dennis
Gotthard, and his brother Mark were not welcome as patrons of Carlisle Bagel.
due to Defendant Ewing's personal feelings toward the two men.
28. Plaintiff believes, and therefore avers that Defendants' conduct was
Intentionally designed to eliminate Plaintiff as a business partner and destroy the
relationship the Plaintiff had developed with customers of Carlisle Bagel, as well as the
general public.
29. The Defendants' unprivileged and adverse conduct caused several
customers to take their business elsewhere, thereby resulting in Carlisle Bagel's loss of
Income and future business.
WHEREFORE, Plaintiff, Stephanie E. Chertok, respectfully requests this Honorable
Court to enter judgment against Defendants, Unda M. Ewing and Martha K. Shelly, in
addition to costs of suit. Interest and attorney fees.
COUNT III
UNJUST ENRICHMENT
30. Plaintiff realleges each and every allegation contained in paragraphs 1-29
of this Complaint and Incorporates them herein by reference as if the same were set forth
at length.
31. Defendants were unjustly enriched by Plaintiff in the following manner:
a Defendants utilized and benefitted from the advertising campaign that
7
Plaintiff had created and paid for; and
b. Defendants continued to operate a profitable bagel business which
the parties created through their Partnership Agreement, utilizing the Plaintiff's
advertising campaign without compensating the Plaintiff.
WHEREFORE, Plaintiff, Stephanie E. Chertok, respectfully requests this Honorable
Court to enter judgrnent against Defendants, Linda M. Ewing and Martha K Shelly, in
addition to costs of suit. Interest and attorney fees.
COUNT IV
BREACH OF FIDUCIARY DUTY
32. Plaintiff realleges each and every allegation contained in paragraphs 1.31
of this Complaint and incorporates them herein by reference as if the same were set forth
at length.
33. At all times material hereto, the parties, as partners engaged In a business
as described within Plaintiff's Complaint, enjoyed a fiduciary relationship.
34. By the conduct described within Plaintiff's Complaint. Defendants breached
their fiduciary duties to the Plaintiff.
WHEREFORE, Plaintiff. Stephanie E. Chertok. respectfully requests this Honorable
Court to enter judgment against Defendants, Linda M. Ewing and Martha K Shelly. in
addition to costs of suit. Interest and attorney fees.
8
,
PARh~IP AGIblISJI,IiII r
AGREEXllJT made on Tuesday, Jovember 21, 1995, between Linda M.
Bwing, Kartha K. Shelly, and Stephanie E. Chertl.Jk, hereinafter referred
to as Partners in the ownership and operation of a buslness known as
Car Uele Bagel.
Business Descrlption
Linda and Kartha shnll own flfty (5~~) percent of the business, and
Stephanie shall own fifty <5~I.) percent of the buslness.
kesponsibilitles at the outset will be as follows: Linda and
Kartha will provlde the facllity, ut111tles, license, suppHes, lnsurance,
labor, knowledge and experlence ln food buslness, p;ood will wlth
vendors, and p;ood wlll wlth the communlty,
Stephanle will provlde promotlonal campaign, advertlslnp;, labor,
good wl11 wlth communlty and name recognition,
A$ soon as "start-up" ls complete, and on an on-going basls, the
business itself shall provlde the necessary money to pay tor supplies,
advertlsing, rent, utilltles, insurance, employees.
The ultlmate goal will be for the buslness to pay for its own rent,
utilit les, 1nsurance, employees, and suppUes, A profit will be realized
that wlll be equally split between Linda, Martha and stephanle, LindA,
Kartha and Stephanie will prov1de superv1s10n and control to malnta1n a
successful level of business,
Hav1ng el1minated alternat1ve optlons, the opt10n of 50/50 owner-
&h1p ba& been adopted and is 1ntended to be formalized herein by wr1tten
agr_nt.
1
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Duratlon of A~reement
Thle partnership ehall contlnue until the death of the partles,
unl_ prev10usly termlnated, but any party may term1nate lt at w1ll by
glvlng slxty U~O) daye notice to the other partners. Purther, the
partners ehall hold thelr share as tenant. 1n COllUllCn, and not as tenant.
with. rlght of .urvivor.hip. It 15 under.toed that this mean. that if
a part.,er should die, her ahare shall pass to her heirs via her will,
Her abare will ~ automatlcally be recalled by the partnership,
Contributions
In addition to the contribution$ mentioned for start-up, including
the expense of providing a ready facility and advertising, Ltnd6 and
Martha shall contribute S300 cash and Stephanie shall contribut.. s300
cash in order to purchase bagels, cream cheese, and beverages. Any
additional contribution required of the partners shall only be
determined and established ln accordance with sections entitled
"I1ullinese Expenses" and "Additional Contributions" contained in this
agr_nt, or by some alternat1ve agreement that is acceptab1e to all
partners.
&:loks and Records
IIooklS of accounts sball be ma1ntained by the partners, and proper
entries made therein of all sales, purchases, receipts. payments,
transact 10ns , and property of the partnership. The books of accounts
and all records of the partnersh1p shall be retained at the principal
place of business. Each partner sllell have free access at ell t1_ to
all becks and record6 maintained relative to the partnership bus1n_.
2
Division of Profits and La....
Linda and Ma~ha shall be entitled to Ufty percent of the net
proflt. of the bueIn..., .nd Stephanie .hall be entltled to flfty
par~nt of the net profit. of the business. All lose.. occurring in the
course of the busine.. shall be borne in the ae_ proportion, unl... the
10.... are occasioned by the willful nsglect or default, and not mere
mi.talre or .rror, of any partner, in wh ich ca.e the lose .0 incurred
.hall be made good by the partner through wheee neglect or default the
1011... ahAll ar1se. ~-<::r~lt. ...11 .. .'4l.1 l~w~ad uu UI UCU,'-JI_ I~J In'' -t
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Performance
Each partner shall apply all of the experience, t.rainlng, and
ability in discharging her assigned funct.10ns in the partnersh1p and in
the performance of all work that may be necessary or advantaReous to
further the buslness interests of the partnership.
Business Ex~nses
All business expenses of tbe partnership are to become payable on
the account of the pa~nership, All losses incurred shall be paid out
of the capital of the partnership or the prOfits ariSing from the part-
n.rehip, or, if both shall be deUcient, by the partners on a pro rata
baeis according to original contributions.
Accountlnsr
The fiecal year of the pa~nersh1p shall be from January 1 to
Oec:eIIber 31 of each year. 1nco_ and expenses shall be recorded by the
hybrid accrual _thod of accounting.
3
Advance Dra_
Bach par'tner shall be a't l1ber'ty 'to draw ou't of the busine_ in
an'ticipation of the expected pro:t1'tlB any sums that 't1lIJ.] be mutually
agreed upon by all par1:nera. Tha 'to1:al aum of the advance draw for each
partnar shall be deducted from tha aUlll 'that the partner is entitled to
_ prOVided. for in the .ection "Division of Profits and Losses".
Additional Contributions
The partners shall not have to contribute any additional capital
to the partnership unless a fiscal year closes with an insufficiency in
the capital account or profits of the partnership to meet current
expenses.
Additions. Alterations. or Modificatione
Where it shall appear to the partners that this Agreement requires
any alteration or addition, the partners will enter into all further
Agr..ments a6 their counsel shall advise. Any addition, alteration, or
modification shall be in writing.
Substitution or Addition of Partners
If a partner ahould chocae to transfer all or part of her owner-
ahip interest in the business to another party, she must first give the
remaining partners reasonable notice and opportunity to purchase the
ahare that she desires to transfer. In addition, the identity of the
propoeed additional or substitute partner will be 't1lIJ.de known to the
other partners so that they have a reasonable opport'l1nity to decide
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P3ZU\8niup Di'$Oh,mon AgreeJ1W'\r
Gulisle Bagel
M.uch 1, 1996
".,Hm-.t mada on March 1, 1996. befw.., tind. M. Ewing. Martha 1(. SIWly,
and. SNphartie !. Chertok. hareiNitltr relmed to .. pattrl8tS in the ownership
and operation of the busitlesa la10wn as Carlis!e Bagel.
Ol..cnlurtnn of t'atmermip
Partners agree to dissolve partnership as or midnight, February 25. 1996. Alt.r
final partnership rerums are filed and all out5t.v1dit1~ liabilities are paici,
remaining cash anci property will be distributed to partners as follows;
PtlIeZet to be distributed to L Ewtng anci M. Shelly. (Valu. equals adjusted. basis
of 5271.00.)
Inventory to be distributed to I.. Ewing anci M. Shelly. (Value equals actual cost
at $377.00.)
Sign to be dlstrtbuted to S, Chertok. (Value equala adjusb!d baais of 5151.00.) By
their signatures below. L Ewing and M. Shelly relinquish all rights to the use of
the name "Carlisle Bagel" in busine5a activities as of midnight, February 25,1996.
Cash payment of 5497.00 to S. OYtrtolt to provide Cor equal distribution of total
a.uetI per SO'ro ownarship ratio.
R.amairlU\g cash to be distributed to all partnerS per ownership percentaps Utw
aU partnership Uabil1ties are satisfied. In the event that the partNrShip does not
have suffldent cash to satisfy liabilities, the parmers shall contribute capital
according to ownership percentages. as described in the original partnership
agreement of November 21, 1995.
In witness whereof. the parties have executed this agreement on March 1, 1996.
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Witness ~lt E. Ch~k
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Witness Martha 1<:. Shelly
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No, 39, Denied, It is specifically denied that Plaintiff failed to provide
advertising expenditures, in fact, Plaintiff provided continuous advertisements in
several different media, Further, Plaintiff arranged for two advertisements that Plaintiff
was caused to cancel due to rejection by Defendants, By way of further response, it is
further denied that Plaintiff ever agreed on an amount of advertising expenditures to be
provided for the business,
No, 40, Admitted.
No, 41, Admitted in part and denied in part, It is admitted that Plaintiff
approached Defendants about a bagel business, It is denied that Plaintiff approached
the Defendants .seve;'altimes.'
No. 42. Admitted in part and denied in part, It is admitted that Plaintiff
approached other individuals regarding the opening of a bagel business in Carlisle. By
way of further response, it is specifically denied that Plaintiff sought a business partner,
With each individual that Plaintiff approached regarding the opening of a bagel
business in Carlisle, she simply sought to encourage the opening a business and did
not specifically seek out a business partner. Defendants were informed that Plaintiff
would endeavor to open a bagal business either with or without a partner.
No, 43, Admittl!d in part and denied in part, It is admitted that at the inception of
the partnership relationship, Plaintiff was informed that the pre-existing catering
business of the Defendants would take priority over the bagel business. Defendants
were also advised by the Plaintiff that she was operating a solo law practice and that
her law practice would take priority over the bagel business, By way of further
response, Defendants did advise Plaintiff that on rare occasions they may be required
to temporarily close the bagel store if both Defendants had catering commitments
elsewhere and Plaintiff could not work at the premises while Defendants were away,
As time passed, it became clear that the rare occasion became an every day event.
No. 44. Denied. The allegations that Roger Spitz was a "silent partner" and that
Plaintiff held any interest in the business fcr Roger Spitz are denied as the Partnership
Agreement, which is attached to Plaintiff's Complaint as Exhibit A, is a document in
writing which speaks for itself and any interpretational gloss or any additional terms
pled herein are strictly denied. By way of further response, the Parol Evidence Rule
and the Statute of Frauds will apply to bar any testimony which contradicts the terms of
the written Partnership Agreement. Further, it is specifically denied that Plaintiff ever
represented Roger Spitz as a silent partner or that Plaintiff held his interest in the
business,
No, 45, Admitted with qualifications. Roger Spitz, was qualified to sign checks
from the partnership account, which additionally required the signature of one of the
Defendants,
No. 46. Admitted with qualifications, It is admitted that the bagel business
initially relied upon the contacts and connections of the pre-existing business of the
Defendants, at their insistence, and at no time did the parties attempt to establish credit
with any independent vendors or suppliers,
No. 47. Denied. The allegations that Roger Spitz was a "silent partner" and that
Plaintiff held any interest in the business for Roger Spitz are denied as the Partnership
Agreement, which is attached to Plaintiff's Complaint as Exhibit A, is a document in
writing which speaks for itself and any interpretational gloss or any additional terms
pled herein are strictly denied, By way of further response, the Parol Evidence Rule
and the Statute of Frauds will apply to bar any testimony which contradicts the terms of
the written Partnership Agreement. By way of further response, Roger Spitz, as the
bookkeeper for the partnership, did hold the checkbook for Carlisle Bagel.
No, 48, Denied. It is specifically denied that Plaintiff and/or Roger Spitz were
late in providing checks to vendors and suppliers, The Defendants would submit
invoices to the Plaintiff and/or Roger Spitz who would in turn issue a check to the
Defendants within 48 hours so that the vendors and/or suppliers could be paid,
No, 49. Denied, It is specifically denied that Plaintiff closed the business early
on Sundays, and in fact, Plaintiff kept the business open beyond the hours of operation
when customer demand required her to do so,
No, 50, Denied as stated, It is admitted that Plaintiff disclosed to Defendants
that she owned and operated an advertising business while informing the Defendants
of her exact advertising experience, It is denied that Plaintiff ever stated or intimated
that she possess .superior knowledge and experience in advertising and marketing of a
business."
No. 51, Denied. It is specifically denied that Roger Spitz had the authority to
enter Into any business agreement for the purchase of bagels from Carlisle Bagel other
than those transactions which occurred at the counter of Carlisle Bagel. By way of
further response, to the best of Plaintiffs knowledge, Roger Spitz never entered into an
agreement for the sale of bagels from Carlisle Bagel which would result in a business
loss. Further Plaintiff is aware that in February of 1996, an individual approached Mr,
Spitz about the wholesale purchase of bagels from Carlisle Bagel for ultimate resale.
Mr. Spitz directed the individual to speak with the Defendants regarding his desire to
purcha!e large quantities of bagels for resale.
No. 52. Denied. The statements in averment No, 52 constitute conclusions of
law to which no response is required, Should a further response be required, it is
denied that the Dissolution Agreement was in accordance and satisfaction. Further, it
is denied that the Dissolution Agreement released the claims set forth by the Plaintiff in
her Complaint. The Dissolution Agreement simply distributed the partnership assets at
the time the partnership relationship was terminated by the Defendants,
No, 53, Denied. In no way did Plaintiff consent to the actions of the Defendants.
By way of further response, after the Defendants locked the Plaintiff out of her
business, the action at bar was the only appropriate means to demonstrate to the
Defendants that Plaintiff disagreed with the Defendants' conduct and actions.
No, 54, The statements in averment No, 54 constitute conclusions of law to
which no response Is required. Should a further response be required, it is specifically
denied that Plaintiff engaged in any conduct which would justify the Defendants' actions
in this matter,
No, 55. The statements in averment No, 55 constitute conclusions of law to
which no response is required, Should a further response be required, it is specifically
denied that Plaintiff engaged in any conduct which would estop her from asserting her
present claims,
No, 56. Denied as stated. Plaintiff had established a business relationship with
several customers including, but not limited to, the general public.
COUNTER CLAIM
No. 57. Admitted.
No, 58. Admitted,
No. 59, Admitted.
No, 60. Denied, After reasonable investigation, Plaintiff is without knowledge or
information sufflcientto form a belief as to the truth or the falsehood of this averment.
No, 61. Denied. It is admitted that Plaintiff approached Defendants about a
bagel business, It is denied that Plaintiff approached the Defendants "repeatedly."
No, 62, Denied, II is specifically denied that Ms, Chertok ever agreed to make
weekly advertising expenditures of $200.00, By way of further response, it is denied
that Ms, Chertok ever agreed to provide advertising which would equal the value of
labor and services provided by Ms, Shelly and Ms. Ewing,
No, 63, Denied, It is admilled that Plaintiff disclosed to Defendants that she
owned and operated an advertising business while informing the Defendants of her
exact advertising experience, II is denied that Plaintiff ever stated or intimated that she
possess "superior knowledge and experience in advertising and marketing of a
business, .
No. 64. Admilled In part and denied in part. It is admitted that at the inception of
the partnership relationship, Plaintiff was informed that the pre-existing catering
business of the Defendants would take priority over the bagel business. Defendants
were also advised by the Plaintiff that she was operating a solo law practice and that
her law practice would take priority over the bagel business. By way of further
response, Defendants did advise Plaintiff that on rare occasions they may be required
to temporarily close the premises if both Defendants had catering commitments
elsewhere and Plaintiff could not work at the premises while Defendants were away,
By way of further response, Plaintiff never agreed by way of the Partnership Agreement
or any other wrillen or oral statement that she would be willing to work alternate
Saturdays. Plaintiff did on occasion work Saturdays at the request of Ms. Ewing or Ms.
Shelly.
No, 65, Admitted.
No. 66, Denied. Ms. Chertok never agreed to work at Carlisle Bagel on all the
occasions when Defendants Shelly and Ewing were involved in catering activities away
from the premises. Further, Ms. Chertok, who was under no obligation to do so,
volunteered her services on Saturdays when Ms, Shelly and Ms. Ewing were
overwhelmed with their catering activities and could not sufficiently provide labor for the
partnership. Additionally, on February 9, 1996, Ms, Chertok approached the
Defendants and inquired as to whether they would like Ms. Chertok to work the next
day, Saturday, February 10, 1996, since Ms, Chertok was aware that Ms, Shelly and
Ms. Ewing were overwhelmed with catering activities, The Defendants rejected Ms.
Chertok's offer,
No, 67. Denied as stated, Ms, Shelly and Ms, Ewing did inform Ms, Chertok
that the Defendants would be moving from the premises at 22 South Hanover Street,
Carlisle, Pennsylvania, With regard to the date, after reasonable investigation, Plaintiff
is without knowledge or information sufficient to form a belief as to whether May 1,
1996, was in fact, the date of the intended move, as the Defendants Informed Ms.
Chertok on various occasions that they had the intention to move on various dates.
No, 68. Denied, Ms, Chertok volunteered her assistance and labor at various
times including Saturdays, By way of further response, Plaintiff volunteered to work on
February 10, 1996, but the Defendants rejected her offer, Further, Ms. Shelly did not
indicate that she would be returning that day to discuss the business with Ms, Ewing,
but rather stated Ms. Ewing would not be coming to the partnership location and
repeatedly stated, "We're not doing it anymore. Just get out"
No. 69, Admitted with qualifications. It is admiUed that Ms. Chertok removed
part of the promotional materials from the partnership location. The remaining
promotional materials were utilized by Ms. Shelly and Ms. Ewing after Ms, Shelly
terminated the partnership relationship. Pursuant to Ms. Chertok's usual duties, she
did in fact empty the cash register of the day's receipts on February 25, 1996, and
deposited them in the partnership account at Farmers Trust Bank.
No, 70. Denied. After reasonable Investigation, Plaintiff Is without knowledge or
information sufficient to form a belief as to the truth or falsity of the averments set forth
in paragraph No. 70. By way of further response, on February 25, 1996, Ms. Shelly set
forth the dissolution process by demanding that all partnership assets be divided and
_A
by displaying a new trade name at the partnership location on the r.1orning of February
27, 1996.
No, 71. Denied as stated, The advertisement attached to Defendants' Answer,
New Matter and Counter Claim as Exhibit C, Is a document In writing and as such
speaks for itself and in no way provides misleading information to the general public
that the businesses operated by Ms, Shally and Ms. Ewing were closed. By way of
further response, the Dissolution Agreement, which is a document in writing which has
also been attached in Plaintiffs Complaint as Exhibit B, provides Ms. Chertok with
exclusive use of the name Carlisle Bagel.
Count One
BREACH OF CONTRACT
No. 72. Counter-Defendant Incorporates herein by reference to the responses
contained in paragraphs No. 37 through 71 as though set forth in length.
No. 73. Denied. This averment contains conclusion of law to which no response
Is required. To the extent Plaintiff seeks to Interpret the Partnership Agreement, as a
document in writing, it speaks for itself.
No. 73(a), Denied. It is specifically denied that Ms. Chertok agreed to make any
specific advertising expenditures,
No. 73(b). Denied. It is denied that Ms. Chertok failed to work on any occasion
where she agreed to.
No. 73(c). Denied. It is denied that Ms. Chertok removed any partnership
property from the premises without justification.
No. 73(d), Denied. It is specifically denied that Ms, Chertok failed to give the
required notice to Ms. Shelly and Ms. Ewing as to termination of the partnership. By
way of further response, it was Ms. Shelly who terminated the Partnership Agreement
and violated the provisions of the Partnership Agreement regarding termination of the
partnership relationship,
No, 73(e). Denied, It is specifically denied that Ms, Chertok breached any
agreement reached by the parties.
No, 74, Denied, Paragraph No, 74 states conclusions of law to which no
response is required. Should a further response be required, any action taken by Ms,
Chertok was justified by the conduct of Ms. Shelly and Ms, Ewing.
WHEREFORE, Counter-Defendant requests that this Honorable Court enter
judgment in her favor and against Counter-Plaintiffs together with costs thereon.
co1tnt iwo
NEG IG NCE
No. 75, Counter Defendant incorporates herein by reference the responses set
forth in paragraphs 37 through 74 as though fully set forth.
No. 76, Admitted.
No, 77. Admitted.
No. 78. Admitted In part and denied in part, It is admitted that the advertisement
attached to Defendant's Answer, New Matter and Counter Claim as Exhibit C, was
utilized as means to inform the general public that the business known as Carlisle
Bagel was no longer in operation, By way of further response, Exhibit C does not
indicate in any way that Ms. Garbo's and/or Carlisle Catering located at 22 South
Hanover Street were closed.
No, 79, Denied. Paragraph No. 79 stales conclusions of law to which no
response is required. Should further response be required, it is admitted that the
advertisement attached to Defendant's Answer, New Matter and Counter Claim as
Exhibit C, was utilized as means to inform the general public that the business known
as Carlisle Bagel was no longer in operation, By way of further response, Exhibit C
does not indicate in any way that Ms, Garbo's and/or Carlisle Catering located at 22
South Hanover Street were closed,
No, 80, Denied. Paragraph No, 80 states conclusions of law to which no
response Is required, Should a further response be required, it is denied that Ms,
Chertok owed the Defendants any duty described in paragraph No, 80, Additionally,
Ms, Chertok denies that she deceived the general public into believing that Ms. Garbo's
and Carlisle Catering were no longer operating and/or attempted to interfere in Ms.
Shelly's and Ms, Ewing's businesses located at 22 South Hanover Street in Carlisle.
No. 81. Denied. Paragraph 81 states conclusions of law to which no response
Is required, Should a further response be required, it is denied that Ms. Chertok
breached any of her duties to Ms. Ewing or Ms. Shelly, rather Ms. Shelly and Ms. Ewing
breached their duties to Ms, Chertok,
No. 82. Denied. Paragraph 82 states conclusions of law to which no response is
required. Should a further response be required, it Is specifically denied that the
actions of Ms. Chertok were the direct and proximate cause of any damages to Ms.
Ewing and Ms. Shelly,
No, 82(a). Denied. It is specifically denied that the actions of Ms. Chertok
caused Ms. Garbo's to close one month prior to the anticipated closing of the business.
By way of further response, after reasonable investigation, Ms, Chertok is without
sufficient knowledge or belief as to truth or falsity of the averment that there was a
diminution of business for Ms, Garbo's.
No 82(b), Denied. After reasonable investigation, Ms, Chertok Is without
sufficient information or knowledge as to form a belief as to the truth or falSity of this
averment.
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J.O BU.EASE
3,1 Each oflhe undersigned and their predecessors. successors, parents,
subsidiaries, affiliates. employees. shareholders, assigns. transti:rees, representatives. principals,
agents, directors. oflicers, executors. tamilies, administrators. and heirs hereby release and
torever discharge each other. and all other related persons, partnerships, corporations or other
entities and their predecessors. successors. parents, subsidiaries, afliliates, assigns. transferees.
representatives, principals. agents, directors. oflkers, heirs. employees, former employees and
shareholders from and against all actions. causes of action. claims, cross-claims, counterclaims,
suits, debts, liens. damages, judgments and demands, whatsoever, whether matured or urunatured,
whether at law or in equity, whether known or unknown, that it now has or may have had. or
hereatler claims to have. on behalf of itself or any other persons or entities, at any time, arising
out of or relating, directly or indirectly, to the dispute.
4.0 ADDITIONAL TERMS AND CONDITIONS
4.1 This document contains the complete Agreement between the Parties,
4.2 The Parties may execute this Agreement in identical counterparts. each of
which shall constitute an original and all of which shall constitute the same Agreement.
4,3 The Parties may modiry this Agreement only by a written document
signed by the Parties. No waiver of this Agreement or of any of its promises, obligations, terms
or conditions is valid unless it is written and signed by the Party against whom the waiver is to
be enlorced.
5.4 This Agreement is binding on the Parties. their predecessors, successors,
parents, subsidiaries, affiliates, assigns. transferees. representatives, principals. agents. directors,
oflkers, employees. shareholders, lamilies, executors, administrators and heirs. Each signatory
- 3 .
PHILOtA 68980 I 08114/98
4815-276
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