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02-5539
WEST MILL CLOTHES, INC., d/b/a LORD WEST and TUXACCO, INC., Plaintiffs, CAPITAL TUXEDO, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defense 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. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 WEST MILL CLOTHES, 1NC., d/b/a LORD WEST and TUXACCO, 1NC., Plaintiffs, CAPITAL TUXEDO, INC., Defendant. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA : : NO. : : JURY TRIAL DEMANDED _NOTICE TO DEFEND Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas ypuede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es .pedido en la peticion de demanda. Usted puede perder dinero o sus porpiedades o otros derechos ~mportantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 WEST MILL CLOTHES, INC., d/b/a LORD WEST and TUXACCO, INC., Plaintiffs, CAPITAL TUXEDO, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiffs, West Mill Clothes, Inc. d/b/a Lord West and Tuxacco, Inc. ("Plaintiffs"), by and through their counsel, Duane Morris LLP, and respectfully allege and plead the following: 1. Plaintiff West Mill Clothes, Inc. ("West Mill Clothes") is a corporation trading and doing business as Lord West, Inc. with a principal place of business located at 5707 31st Avenue, Woodside, New York 11371. 2. West Mill Clothes is engaged in the on-going business enterprise of manufacturing and selling formalwear. 3. Tuxacco, Inc. ("Tuxacco") is a Pennsylvania corporation with a principal place of business also located at 257 Rittenhouse Circle, Bristol, PA 19007. 4. Plaintiff Tuxacco is an affiliated company with Plaintiff West Mill Clothes and is engaged in the on-going business enterprise of selling formalwear and formalwear accessories. 5. Upon information and belief, Capital Tuxedo, Inc. ("Capital Tuxedo") is a corporation with a principal place of business located at 5517 Carlisle Pike, Mechanicsburg, Pennsylvania 17055. 6. Plaintiffs and Defendant have had a long standing and ongoing business relationship with one another since approximately 1984, whereby pursuant to the written or verbal request of Defendant, Plaintiffs sell their goods and materials to Defendant on open account. 7. The above-mentioned business relationship created a valid and binding contract between the parties whereby Defendant is required to pay Plaintiffs for the goods and materials sold. 8. Between the time period of June 1999 and November 2001, Plaintiffs sold their goods and materials to Defendant on open account for which Plaintiffs have not received payment in full. Plaintiffs have regularly provided Defendant with invoices for amounts due and Defendant was obligated to pay the amounts due and owing as represented on the invoices within the various terms as stated on the invoice. 11. Defendant has failed to make all of the required payments as they came due and in fact, Defendant has failed to abide by and make payments in accordance with the parties agreed upon pay-out schedule. 12. Presently, there remains due and owing to Plaintiffs the principal sum of $303,424.44. COUNT I - BREACH OF CONTRACT 13. Paragraphs 1 through 12 are incorporated herein by reference as if set forth in full. 14. Defendant's purchase of goods and materials from Plaintiffs on open account, and Plaintiffs furnishing of such goods and materials, created a valid and binding contract between owing. 10. Defendant and Plaintiffs, whereby Defendant became obligated to pay the full amount due and owing for such goods and materials. 15. Notwithstanding multiple demands made by Plaintiffs to Defendant, Defendant has wrongfully failed and refused to pay the full amount due and owing to Plaintiffs. 16. At all times material hereto, Plaintiffs acted in good faith and in accordance with the parties contractual agreement. 17. By reason of Defendant's failure to pay the amount due and owing and thereby breaching the parties contractual agreement, Plaintiffs are entitled to have and recover the amount of $303,424.44. WHEREFORE, Plaintiffs West Mill Clothes, Inc. d/b/a Lord West, Inc. and Tuxacco, Inc. demand judgment to be entered against Defendant Capital Tuxedo, Inc. in the amount of $303,424.44, together with interest, cost of suit and any other relief this Honorable Court deems just and appropriate. _COUNT II - QUANTUM MERUIT 18. Paragraphs 1 through 17 are incorporated herein by reference as if set forth in full. 19. At the request of Defendant, Plaintiffs provided Defendant with goods and materials and Plaintiffs did not provide said goods and materials gratuitously. 20. Plaintiffs expected to be paid for the goods and materials shipped and provided to Defendant. 21. The goods and materials provided by Plaintiffs were knowingly and voluntarily accepted by Defendant. 22. In the alternative to Count I, the acceptance and use of the goods and materials by Defendant created an implied contract, whereby Defendant is obligated to pay to Plaintiffs the reasonable value of said goods and materials. 23. The reasonable value of the goods and materials and late charges for which Defendant has failed to pay is not less than $303,424.44. 24. The delivery of goods and materials has benefited Defendant, and in the event Defendant is not required to pay Plaintiffs the reasonable value of the materials, Defendant will have been unjustly enriched. 25. As a direct result of Defendants unjust enrichment, Plaintiff is entitled to recover not less than $303,424.44. WHEREFORE, Plaintiffs West Mill Clothes, Inc. d/b/a Lord West, Inc. and Tuxacco, Inc. demand judgment to be entered against Defendant Capital Tuxedo, Inc. in the amount of $303,424.44, together with interest, cost of suit and any other relief this Honorable Court deems just and appropriate. Date: Respectfully submitted, DUANE MORRIS LLP Attorney I.D. No. 76652 305 North Front Street, 5th Floor P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5500 Attorneys for Plaintiffs West Mill Clothes, Inc. d/b/a Lord West and ruxacco, Inc. WEST MILL CLOTHES, 1NC., d/b/a LORD WEST and TUXACCO,: INC., Plaintiffs, CAPITAL TUXEDO, INC., Defendant. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, · PENNSYLVANIA : NO. : JURY TRIAL DEMANDED VERIFICATION I, Howard Ziplow, hereby aver and state that I am authorized to make this Verification on behalf of Plaintiffs West Mill Clothes, Inc. d/b/a Lord West and Tuxacco, Inc. I further state that the statements in the foregoing Complaint are based upon information which has been furnished to counsel by me and information'which has been gathered by counsel in the preparation of the defense of this lawsuit. The language of the foregoing is of counsel and not my own. I have read the foregoing and, to the extent that it is based upon information which I have given to counsel, it is txue and correct to the best of my knowledge, information, and belief. To the extent that the contents of the foregoing are that of counsel, I have relied upon counsel in making this Verification. The undersigned also understands that the statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unswom falsification to authorities. How~iplow WEST MILL CLOTHES, INC., d/b/a LORD WEST and TUXACCO, INC., Plaintiffs Ve CAPITOL TUXEDO, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-5539 CIVIL TERM PRELIMINARY OBJECTIONS NOW COMES, Defendant, Capitol Tuxedo, Inc. ("Capitol Tuxedo") and makes the following Preliminary Objections to Plaintiffs' Complaint in the above-referenced case: I. Failure of Pleading to Conform to Law or Rule of Coull 1. In Paragraph 6 of their Complaint, Plaintiffs make reference to Defendant's "written or verbal request" to purchase goods and materials from Plaintiffs. 2. In Paragraph 7 of their Complaint, Plaintiffs make reference to a valid and binding contract between the parties based on "the above-mentioned business relationship." 3. In Paragraph 9 of their Complaint, Plaintiffs indicate that they have "regularly provided Defendant with invoices for amounts due and owing." 4. In Paragraph 10 of their Complaint, Plaintiffs allege that Defendant was obligated to pay the amounts allegedly due and owing as represented on the invoices within the "various terms as stated on the invoice [sic]." 5. In Paragraph 11 of their Complaint, Plaintiffs allege that Defendant has failed to abide by and make payments in accordance with "the parties [sic] agreed upon pay-out schedule.' 6. In Paragraph 14 of their Complaint, Plaintiffs allege that "Defendant's purchase of goods and materials from Plaintiffs on open account, and Plaintiffs [sic] furnishing of such goods and materials, created a valid and binding contract between Defendant and Plaintiffs, whereby Defendant became obligated to pay the full amount due and owing for such goods and materials." 7. In Paragraph 17 of their Complaint, Plaintiffs allege that "by reason of Defendant's alleged failure to pay the amount due and owing, Defendant breached "the parties [sic] contractual agreement." 8. Pa. R.C.P. 1019(h) states that "When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written." 9. Pa. R.C.P. 1019(i) states in relevant part that "When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof .... " 10. Plaintiffs have failed to indicate whether their contract with Defendant, as specified in Paragraph 6 of their Complaint, is based on written requests or verbal requests in violation of Pa. R.C.P. 1019(h). 11. To the extent Plaintiffs' alleged contract with Defendant is based on "written" requests, Plaintiffs have failed to attach a copy of the writing or writings on which this claim is based in violation of Pa. R.C.P. 1019(0. 12. Plaintiffs have failed to attach a copy of the "invoices" referenced in Paragraphs 9 and 10 of their Complaint. 13. Plaintiffs' failure to attach copies of the invoices violates the requirement of Pa. R.C.P. 1019(i). 14. Plaintiffs have failed to attach a copy of the "parties [sic] agreed upon pay-out schedule" referenced in Paragraph 11 of their Complaint. 15. Plaintiffs' failure to attach a copy of the alleged agreed upon pay-out schedule violates Pa. R.C.P. 1019(i). 16. Plaintiffs have failed to specify whether the contract referenced in Paragraph 14 of their Complaint is a written or oral contract in violation of Pa. R.C.P. 1019 (h). 17. To the extent the alleged contract referenced in Paragraph 14 of Plaintiffs' Complaint is a written contract, Plaintiffs have failed to attach a copy or copies of the contract or other writing upon which this claim is based in violation of Pa. R.C.P. 1019(0. 18. Pa. R.C.P. 1028(a)(2) authorizes a party to file Preliminary Objections on the basis of the "failure of a pleading to conform to law or rule of court .... ' 19. Plaintiffs' Complaint fails to conform to Pa. R.C.P. 1019(h) and Pa. R.C.P. 1019(i). WHEREFORE, Defendant Capitol Tuxedo, Inc., requests that this Court enter an Order dismissing Plaintiffs' Complaint for failure to conform for law or rule of court pursuant to Pa. R.C.P. 1028(a)(2). II. Failure of Pleading to Conform to Law 20. In the prayer for relief with regard to "Count II - Quantum Meruit" of their Complaint, Plaintiffs request that the Court award them the sum of Three Hundred Three Thousand Four Hundred Twenty-Four Dollars and 44/100 (303,424.44) "together with interest". 21. As a mater of law, Plaintiffs are not entitled to interest on their quantum meruit claim. 22. Pa. R.C.P. 1018(a)(2) authorizes a party to file Preliminary Objections on the basis of the "failure of a pleading to conform to law or rule of court .... ' 23. Plaintiffs' request for pre-judgment interest on its quantum meruit claim fails to conform to law. WHEREFORE, Defendant, Capitol Tuxedo, Inc., requests that this Court enter an Order dismissing Plaintiffs' Complaint for failure to comply to law pursuant to Pa. R.C.P. 1028(a)(2). III. Motion for More Specific Statement 24. In both Count I and Count II of their Complaint, Plaintiffs seek recovery of the sum of Three Hundred Three Thousand Four Hundred Twenty-Four Dollars and 44/100 ($303,424.44). 25. Plaintiffs fail to indicate how they calculated the amount allegedly due. 26. Plaintiffs have failed to indicate whether the amount claimed to be due includes pre-judgment interest. 27. To the extent the amount allegedly due contains pre-judgment interest, Plaintiffs have failed to indicate whether the interest rate is based on a statutory or contractual rate. 28. Pa. R.C.P. 1028(a)(3) authorizes a party to file Preliminary Objections on the basis of "insufficient specificity in a pleading." 29. Plaintiffs' Complaint lacks sufficient specificity to provide Defendant with the information it needs to form a meaningful evaluation of the truth and accuracy of Plaintiffs' averments and to formulate a meaningful defense. WHEREFORE, Defendant, Capitol Tuxedo, Inc., requests that this Court enter an Order dismissing Plaintiffs' Complaint for insufficient specificity or, in the alternative, that this Court enter an Order requiring Plaintiffs to plead with greater specificity. Respectfully submitted, LAW OFFICES of MARKIAN R. SLOBODIAN Dated: i ~-~ ~ x~ { o ~-- MARKIAN R. SLOBODIAN, ESQ. I.D. # 41075 ANDREW R. EISEMANN, ESQ. I.D. #87441 801 North Second Street Harrisburg, PA 17102 717/232-5180 Counsel for Capitol Tuxedo, Inc. CERTIFICATE OF SERVICE I, hereby certify that I have, this date, served a true and correct copy of the foregoing Preliminary Objections by U.S. Mail, first class, postage prepaid, addressed to the following individual(s): Thomas L. Isenberg, Jr., Esq. Dwayne, Morris & Hecksher 305 North Front Street P.O. Box 1003 Harrisburg, PA 17108-1003 Dated: MARKIAN R. SLOBODIAN, ESQ. SHERIFF'S RETURN - REGULAR CASE NO: 2002-05539 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WEST MILL CLOTHES INC DBA LORD VS CAPITAL TUXEDO INC CPL. TIMOTHY REITZ , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CAPITAL TUXEDO INC the DEFENDANT at 5517 CARLISLE PIKE , at 1332:00 HOURS, on the 20th day of November , 2002 MECHAiNICSBURG, PA 17055 by handing to DONNA MARTIN, CONTROLLER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff,s Costs: Docketing 18.00 Service 7.59 Affidavit .00 Surcharge 10.00 .00 35.59 Sworn and Subscribed to before me this j~ day of ~~ ~ 2-~ A.D. rothonotary ' So Answers: R. Thomas Kline 11/21/2002 DUANE MORRIS By: Depu~ SSeri f~ / WEST MILL CLOTHES, INC., dib/a LORD WEST and TUXACCO, INC., Plaintiffs, CAPITAL TUXEDO, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-5539 Civil Term JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by 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 judgrnent may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff· You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE· IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Assoc. 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 HBG\I 11564.1 WEST MILL CLOTHES, INC., ' IN THE COURT OF COMMON PLEAS d/b/a LORD WEST and TUXACCO, · OF CUMBERLAND COUNTY, INC., ' PENNSYLVANIA Plaintiffs, · v. ' NO. 02-5539 Civil Term CAPITAL TUXEDO, INC., · Defendant. ' JURY TRIAL DEMANDED AMENDED COMPLAINT And now, comes the Plaintiffs, West Mill Clothes, Inc., d/b/a Lord West and Tuxacco, Inc., by and through their counsel, Duane Morris, LLP, and respectfully allege and plead the following: 1. Plaintiff, West Mill Clothes, Inc., ("West Mill Clothes") is a corporation trading and doing business as Lord West, Inc., with a principal place of business located at 5707 - 31st Avenue, Woodside, N.Y. 11371. 2. West Mill Clothes is engaged in the ongoing business enterprise of manufacturing and selling formal wear and formal attire. 3. Tuxacco, Inc., ("Tuxacco") is a Pennsylvania corporation with a principal place of business located at 257 Rittenhouse Circle, Bristol, Pennsylvania 19007. 4. Tuxacco is an affiliated company with West Mill Clothes and is engaged in the ongoing business enterprise of selling formal wear and formal wear accessories. 5. Defendant, Capital Tuxedo, Inc., ("Capital Tuxedo") is believed to be a corporation authorized to do business within the Commonwealth of Pennsylvania with a principal place of business located at 5517 Carlisle Pike, Mechanicsburg, Pennsylvania 17055. HBG\I 11564.1 6. Plaintiffs, West Mill Clothes and Tuxacco, have had a long longstanding and ongoing business relationship with Capital Tuxedo since approximately 1984, whereby pursuant to the request of Capital Tuxedo, Plaintiffs West Mill Clothes and Tuxacco, sold and shipped goods and materials to Capital Tuxedo. 7. The above mentioned business relationship created a valid and binding contractual agreement between the parties whereby Capital Tuxedo was and is required to pay Plaintiffs West Mills Clothes and Tuxacco, for the goods and materials sold and shipped as requested. o forth in full. COUNT I - BREACH OF CONTRACT · West Mills Clothes v. Capital Tuxedo Paragraphs 1 through 7 above are incorporated herein by reference as if set 9. During the period from June of 1999 through November, 2001, West Mill Clothes sold goods and materials to Capital Tuxedo on credit totaling $90,824.94. 10. During the period from June 1999 through November 2001, West Mill Clothes regularly provided Capital Tuxedo with invoices for amounts due and owing. Copies of the invoices are attached hereto and marked as Exhibit "A." 11. Capital Tuxedo is obligated to pay the amount due and owing as represented on the invoices. 12. Capital Tuxedo failed to make the required payments as they came due. HBG\I 11564.1 2 13. West Mill Clothes has received minimal reimbursement from Capital Tuxedo on the above referenced invoices totaling $14,116.54. West Mill Clothes is currently owed the remaining principal sum of $76,708.40 by Capital Tuxedo. 14. In accordance with the parties agreement as aforesaid, Capital Tuxedo has also been assessed late charges for untimely paid mounts and for invoices which have gone unpaid totaling $70,093.39. A copy of Capital Tuxedo account evidencing outstanding and late charges is attached hereto as Exhibit "B." 15. Despite West Mill Clothes repeated requests and demands for payment, as of the filing of this Amended Complaint, West Mill Clothes has not received the aforementioned payments which are properly due and owing in an amount of $146,801.79. 16. Capital Tuxedo's purchase of goods and materials from West Mill Clothes and West Mill Clothes furnishing of such goods and materials, created a valid and binding contract between the parties whereby Capital Tuxedo became obligated to pay the full amount due and owing for such goods and materials, together with any and all properly assessed late charges. 17. Notwithstanding multiple demands made by West Mill Clothes to Capital Tuxedo, Capital Tuxedo has wrongfully failed and refused to pay the full amount due and owing to West Mill Clothes in breach of the parties contractual agreement. 18. At all times material hereto, West Mill Clothes has acted in good faith and in accordance with the parties contractual agreement. HBG\I 11564.1 3 WHEREFORE, Plaintiff, West Mill Clothes, demands judgment to be entered in its favor and is entitled to have and recover the principal amount of $76,708.40, the applicable late charges in the amount of $70,093.39 totaling $146,801.79, together with all applicable interest, costs of suit and any other relief this Honorable Court deems just and appropriate under the circumstances. 19. set forth in full. COUNT II- QUANTUM MERUIT West Mill Clothes v. Capital Tuxedo Paragraphs 1 through 19 above are incorporated herein by reference as if 20. At the request of Capital Tuxedo, during the period fi.om June 1999 through November 2001, West Mill Clothes provided Capital Tuxedo with goods and materials. West Mill Clothes did not provide the goods and materials gratuitously. 21. At all times material hereto, West Mill Clothes expected to be paid for the goods and materials sold, shipped and provided to Capital Tuxedo. 22. The goods and materials sold, shipped and provided by West Mill Clothes were knowingly and voluntarily accepted by Capital Tuxedo. 23. In the alternative, Count I, the acceptance and use of the goods and materials by Capital Tuxedo created an implied contract whereby Capital Tuxedo is obligated to pay to West Mill Clothes the reasonable value of said goods and materials. 24. The reasonable value of the goods, materials and assessed late charges for which Capital Tuxedo has failed to pay is not less than $146,801.79. HBG\I 11564.1 4 25. The delivery of goods and materials has benefited Capital Tuxedo and in the event Capital Tuxedo is not required to pay West Mills Clothes for the reasonable value of the aforementioned materials, then Capital Tuxedo will have been unjustly enriched. 26. As a direct result of Capital Tuxedo's unjust enrichment, West Mill Clothes is entitled to recover not less than $146,801.79. WHEREFORE, Plaintiff, West Mill Clothes, demands judgment to be entered in its favor and is entitled to have and recover the principal amount of $76,708.40, the applicable late charges in the amount of $70,093.39 totaling $146,801.79, together with cost of suit and any other relief this Honorable Court deems just and appropriate under the circumstances. 27. set forth in full. COUNT III - BREACH OF CONTRACT' Tuxacco v. Capital Tuxedo Paragraphs 1 through 26 above are incorporated herein by reference as if 28. During the period from March 2000 through July 2002, Tuxacco sold goods and materials to Capital Tuxedo on credit totaling $56,397.95. 29. During the period from March 2000 through July 2002, Tuxacco regularly provided Capital Tuxedo with invoices for amounts due and owing. Copies of the invoices are attached hereto and marked as Exhibit "C." 30. Capital Tuxedo is obligated to pay the amount due and owing as represented on the invoices. HBG\I 11564.1 31. Capital Tuxedo failed to make the required payments as they came due. 5 32. Tuxacco has received minimal reimbursement from Capital Tuxedo on the above referenced invoices totaling $9,071.69. Tuxacco is currently owed the remaining principal sum of $47,326.25 by Capital Tuxedo. 33. In accordance with the parties agreement, as aforesaid, Capital Tuxedo has also been assessed late charges for untimely paid amounts and for invoices which have gone unpaid totaling $110,964.99. A copy of Capital Tuxedo account evidencing outstanding invoices and applicable late charges is attached hereto and marked as Exhibit "D." 34. Despite Tuxacco's repeated requests and demands for payment, as of the filing of this Amended Complaint, Tuxacco has not received the aforementioned payments which are properly due and owing in an amount of $158,291.25. 35. Capital Tuxedo's purchase of goods and materials from Tuxacco and Tuxacco furnishing of such goods and materials, created a valid and binding contract between the parties whereby Capital Tuxedo became obligated to pay the full amount due and owing for such goods and materials, together with any and all properly assessed late charges. 36. Notwithstanding multiple demands made by Tuxacco to Capital Tuxedo, Capital Tuxedo has wrongfully failed and refused to pay the full amount due and owing to Tuxacco in breach of the parties contractual agreement. 37. At all times material hereto, Tuxacco has acted in good faith and in accordance with the parties contractual agreement. WHEREFORE, Plaintiff, Tuxacco, demands judgment to be entered in its favor and is entitled to have and recover the principal amount of $47,326.25, the applicable late charges in HBG\I 11564.1 6 the amount of $110,964.99 totaling $158,291.25, together with all applicable interest, cost of suit and any other relief this Honorable Court deems just and appropriate under the circumstances. 38. set forth in full. COUNT IV - OU/INTUMMERUIT Tuxaeeo v. Capital Tuxedo Paragraphs 1 through 37 above are incorporated herein by reference as if 39. At the request of Capital Tuxedo, during the period from March 2000 through July 2002, Tuxacco provided Capital Tuxedo with goods and materials. Tuxacco did not provide the goods and materials gratuitously. 40. At all times material hereto, Tuxacco expected to be paid for the goods and materials sold, shipped and provided to Capital Tuxedo. 41. The goods and materials sold, shipped and provided by Tuxacco were knowingly and voluntarily accepted by Capital Tuxedo. 42. In the alternative, Count I, the acceptance and use of the goods and materials by Capital Tuxedo created an implied contract whereby Capital Tuxedo is obligated to pay to Tuxacco the reasonable value of said goods and materials. 43. The reasonable value of the goods, materials and assessed late charges for which Capital Tuxedo has failed to pay is not less than $158,291.25. 44. The delivery of goods and materials has benefited Capital Tuxedo in the event Capital Tuxedo is not required to pay Tuxacco for the reasonable value of the aforementioned materials, then Capital Tuxedo will have been unjustly enriched. HBG\I 11564.1 7 45. As a direct result of Capital Tuxedo's unjust enrichment, Tuxacco is entitled to recover not less than $158,291.25. WHEREFORE, Plaintiff, Tuxacco, demands judgment to be entered in its favor and is entitled to have and recover the principal amount of $47,326.26, the applicable late charges in the amount of $110,964.99 totaling $158,291.25, together with cost of suit and any other relief this Honorable Court deems .just and appropriate under the circumstances. Respectfully submitted, DUANE MORRIS LLP Attorney I.D. No. 76652 305 North Front Street, 5th Floor P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5500 Attorneys for Plaintiffs West Mill Clothes, 'Inc. d/b/a Lord West and Tuxacco, Inc. HBG\III564.1 8 VERIFICATION I, Howard Ziplow, hereby aver and state that I am authorized to make this Verification on behalf of Plaintiffs West Mill Clothes, Inc. d/b/a Lord West and Tuxacco, Inc. I further state that the statements in the foregoing Amended Complaint are true and correct to the best of my knowledge, are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of the defense of this lawsuit. The undersigned also understands that the statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Dated: Exhibit A 0 0 'ri , 0 Z 0 z ~',.~t "~J ~" -..,,J O0 © O0 0 m Z .,4 O0 0 0 1'3 ,b.l .' -4 I'J ..' "8 :(,'.',. f,J 0 . (~q c.o i,, o 0 0 0 "'no ZZ ~J 0 ',0 fO ¢, 0 0 0©0 0 z~ o~ ~0 .~m ~m o~ 0 "TI 0 © O, r~ 0 0 0 Fq -( 0 z z ~m m~ om © 0 © 0 0~~ o~ zz~ 3 0 c~ m tg 0 0 ..nm m~ .~o o~ rq o cz 0 0 Cq om o~ Z 'Ti 0 f.~x II Ltl · -,,i -,t 0 C, O0 0 0 O0 © 0 0 0 0 0 0 0 0 0 0 0 0 0 ~m m~ 0 ~ r0 -M ,,,q ..,d ",.J 0 O0 0 O0 0 0 oo ¢.4 b bb b 0 O0 0 o Z I~ ~am m~ ~0 og o 0 0 0o0 Q3 .,4 -40 f, Jl C' Lq ..L~ 0 0 0 0 000 -< ~ O- 0 -,.I ',,I -,,t -,4 --1 -,I 0 000 0 0 0 000 0 000 0 0 b hbo o 6 m O:J:, 0 0 < 0 F~ r- ~F' 9~cz ,c:: ~ rn ~ ~'~ z .~ m ~ Om 'no 0 ~ 0 0 0 03: 0:~ :; :Dm om ~0 og · ~ , r 0 .i~ tq 0 0 0 m o 0 0'1 oho ob 000 O© ~ ,,..q .,~ , ','-,,I ..,,l 0©©-, ©0 ooo bb 2: · ,.! _ t O-tm ~m .~o o~ '2, ~m m~a om m~ .~o og 0 m I~ m G') ..~ C CEC 0 O0 0 Om 'nO '0 0 0 O0 0 00©0 0 ~ b~ b b~ 0 0 O0 0 0 0 O0 0 0000 0 0 bbb b bbb~ b b © O0 0 0000.0 0 · 0 K' ?. .'.--4 li Exhibit B LORD WEg WEST MILL CLOTHES, INC. 57-07 31st AVENUE, WOODSIDE, N.Y. 11377-1286 (718) 204-6640 -- Fax (718) 204-6658 D-U-N-S 126-4407 ~PITOL TUXEDO, INC. 5517 CARLISLE PIKE ~E_CHANICSBURC PA 17050 4/30/97 5/01/97 7/01/97 7/31/97 8/31/97 5/31/98 6/30/98 7/31/98 8/31/98 .0/31/98 1/30/98 i/31/99 2/28/99 3/31/99 4/30/99 5/31/99 6/03/99 6/14/99 7/31/99 8/31/99 9/30/99 .970430 411.20 970601 397.83 970701 152.86 970731 805.54 970831 772.77 980531 1,024.95 980630 724.55 980731 198.44 980831 I06.48 981031 . I 981136 99013i~ 990228 ~81. 11 990331 291o80 43099 387.90 53199 1,354.70 713835 16,~968-82 714707 16,961.99 73199 1,431.58 83199 1~43~. 51 ~=0o00 93099 BALANCEDUE :IRENT AMOUNT PAST DUE BALANCE LATE CHARGE ON P.D. BALANCE @ PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE A 4/30/97 6/01/97 7/01/97 7/31/97 8/31/97 5/31/98 6/30/98 7/31/98 8/31/98 10/31/98 11/30/98 1/31/99 ~/28/99 3/31/99 4/30/99 5/31/99 5/15/00 5/15/00 7/31/99 8/31/99 9/30/99 fl LORD WEST WEST MILL CLOTHES, INC. 57-07 31st AVENUE, WOODSIDE, N.Y. 11377-1286 (718) 204-6640 -- Fax (718) 204-6658 D~U-N-S 126-4407 CAPITOL TUXEDO, INC. 5517 CARLISLE PIKE ECHANICSBURO PA 17050 105400 A .0/31/99 .1/30/99 .2/31/99 1/31/00 2/29/00 3/08/00 3/13/00 3/31/00 4/26/00 4/30/00 5/01/00 5/03/00 5/04/00 5122100 5/31/00 6/01/00 6/08/00 6/14./00 6/14./00 6/15/00 6/30/00 1'03199 2, 113099 1, 123199 1, 13100 1, 22900 1, 731500 731783 33100 1, 734875 22, 4300o 73515Q 73539~ 735533 736907 53100 737636 738135 738522 738526 738558 63000 1, 245. 889. 668. 423. 378. 193. 178. 480. 18o. 33 70 73 52 66 50 17 56 oo 173. 71 99. 07 569. 84 219. 79 196. 25 191. 25 219. 79 185. 25 52i. (50 10/31/99 11/30/99 12/31/99 1/31/00 2/29/00 9/04/00 9/09/00 3/31/00 10/23/00 4/30/00 10/28/00 10/30/00 10/31/00 5/15/01 5/31/00 11/28/00 12/05/00 12/11/00 12/11/00 12/12/00 6/30/00 BALANCE DUE CURRENT AMOUNT PAST DUE BALANCE LATE CHARGE ON P.D. BALANCE @ PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE PER:MONTH LORDc- WEST MILL CLOTHES, INC. 57-07 31st AVENUE, WOODSIDE, N.Y. 11377-1286 (718) 204-6640 -- Fax (718) 204-6658 D-U-N-S 126-4407 2/'31/02 105400 ~]7~PI'TOL TUXEDO, INC. 5517 CARLISLE PIKE ~ i~__~CHANICSBURO'PA 17050 7/31/00 8/14/00 8/31/00 9/30/00 .0/31/00 .1/30/00 .2/31/00 1/31/01 2i28/01 3/31/01 4/30/01 5/31/01 6/30/01 7/31/01 8/13/01 8/31/01 9/28/01 0/12/01 0/31/01 0/31/01 1/06/01 73100 1,571.70 742623 64.62 83100 1,541.63 93000 1,497.60 103100 1,551.86 113000 1,506.90 123100 1, 567.36 13101 1,567.36 22801 1,415.68 33101 1, 5~ 4300~i 5310~~! !~!1;578. 63001 1,251.90 73101 1,293.63 763853 3.11 83101 1,212.10 92801 1,173.00 766157-' 4.24 905699 103101 1,212.10 767030 3.18 120.50- BALANCE DUE CURRENT AMOUNT PAST DUEBALANCE LATE CHARGE ON P.D. BALANCE @ PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE A 7/31/00 9/13/00 8/31/00 9/30/00 10/31/00 11/30/00 12/31/00 1/31/01 2/28/01 3/31/01 '4/30/01 5/31/01 6/30/01 7/31/01 9112/01 8131/01 11/11/01 11/01/01 10/31/01 12/06/01 LORD WES" WEST MILL CLOTHES, INC. 57-07 31st AVENUE, WOODSIDE, N.Y. 11377-1286 (718) 204-6640 -- Fax (718) 204-6658 D-U-N-S 126-4407 ~APITOL TUXEDO, INC. 5517 CARLISLE PIKE t~_ECHANICSBURO PA 17050 11/30/0l 12/31/01 1/31/0~- 2128/0 3/31/02 4/30/02 5131/02 6/30/02 7/31/02 8/31/O2 9/30/O2 t0/31/02 11/30/0; · 113001 1,171.50 123101 884.74 13102 884.74 22802 799.12 33102 884.74 43002 856.20 53102 884.74 63002 854.70 73102 810.03 8310~ 93002 10310~2 .... 113002 734.40 2/31/02 105400 11/30/01 12/31/01 1/31/02 2/28/02 3/31/02 4/30/02 5/31/02 6/30/02 7/31/02 8/31/02 9/30/02 10/31/02 11/30/02 PAYMENTS RECEIVED THIS MONTH . O0 BALANCE DUE CURRENT AMOUNT PAST DUE BALANCE I 58756. LATE CHARGE ON P.D. BALANCE @ 1. 25% PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE 6032c~. 47 TOTAL AMOUNT DUE 58756. 26 60327.47 LORD WF T WEST MiLL CLOTHES, INC. 57-07 31st AVENUE, WOODSIDE, N.Y. 11377-1286 (718) 204-6640 -- Fax (718) 204-6658 D-U-N-S 126-4407 :CAPITOL TUXEDO, INC. 5517 CARLISLE PIKE **RETAIL ACCOUNT** 'PA 17055 :., 105401 1/31/9E 980131 2/28/98 980228 il 3/31/9~ 980331 i: 4/30/9~ 980430 5/31/9~ 980531 6/30/98 980630 7/31/98 980731 8/31/98 980831 10/01/98 981001 10/31/98 98103~ i 9811~0 i/31 99013,~ 990228 ~ 3/31 990331 : 4/30/99 43099 6/30/99 63099 7/31/99 73199 8/31/99 83199 9/30/99 93099' i0/31/99 103199 1/10/00 728002 4.97 2.10 7.77 9.98 27.13 49.72 54. O1 59.94 61.15 75.29 91.98 94.80 21.30 24.80 23.87 24.00 32.24 52.99 BALANCE DUE CURRENT AMOUNT PAST,DUE BALANCE LATE CHARGE ON P.D. BALANCE @ PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE A 1/31/98 2/28/98 3/31/98 4130/98 5/31/98 6/30/98 7/31/98 8/31/98 10/01/98 10/31/98 11/30/98 1/31/99 2/28/99 3/31/99 4/30/99 6/30/99 7/31/99 8/31/99 9/30/99 10/31/99 2/09/00 !1 LORD E. ST WEST MILL CLOTHES, INC. 57-07 31st AVENUE, WOODSIDE, N.Y. 11377-1286 (718) 204-6640 -- Fax (718) 204-6658 D-U-N-S 126-4407 C~--'APITOL TUXEDO, INC. 5517 CARLISLE PIKE ++RETAIU ACCOUNT~ M~CHANICSBUEO PA 17055 ~/31/02 105401 A 1/19/00 1/31/00 2/23/00 2/29/00 3/13/00 3/22/00 3/31/00 4119100 4126100 4/30/00 5/02/00 5/12/00 5/15/00 5/17/00 5/31/00 6/28/00 6/30/00 7/31/00 8/31/00 9/30/00 10/31/00 728626 13100 730654 22900 731743 732395 33100 734313 734874 4300,0 73525~ 736252 736374 736510 53100 739464 63000 73100 83100 93000 103100 348.32 8.06 173.17 12.18 173.17 219.79 15.50 173.08 14,194.72 1,535.21 353.42 276.83 224.79 297.90 310.62 310.62 300.60 310.62 2/18/00 1/31/00 3/24/00 2/29/00 4/12/00 4121/00 3/31/00 5/19/00 5/26/00 4/30/00 6/01/00 6/11/00 6/14/00 6/16/00 5/31/00 7/28/00 6/30/00 7/31/00 8/31/00 9/30/00 10/31/00 BALANCE DUE CURRENT AMOUNT JE BALANCE LATE CHARGE ON P.D. BALANCE @ PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE LORD-WEOT WEST MILL CLOTHES, IN~. 57-07 31 st AVENUE, WOODSIDE, N.Y. 11377-1286 (718) 204-6640 -- Fax (718) 204-6658 D-U-N-S 126-4407 12/31/02 CAPITOL TUXEDO, INC. 5517 CARLISLE PIKE · ~*RETAIL ACCOUNT** ~_ECHANICSBURO~ PA 17055 105401 A 11/30/00 12/31/00 1/31/01 2/28/01 3/31/01 4/30/01 5/31/0: 6/30/0: 7/31/0: 8/31/0~ 9128/0 10/31/01 11/30/01 12/31/01 1/31/02 2 3/31 4/30/02 ~ ~ 5/31/02 · 6/12/02 6/30/02 113000 123100 13101 22801 33101 43001 53101 63001 73101 83101 928~i 113001 123101 13102 22802 33102 43002 53102 61202 63002, 300.60 307.83 307.83 275.80 305.35 295.50 305.35 295. 50 305.35 295. 50 305.35 305.35 275.80 305.35 295. 50 305.35 224. 4O 12. 98- 11/30/00 12/31/00 1/31/01 2/28/01 3/31/01 4/30/01 5/31/01 6/30/01 7/31/01 8/31/01 9/28/01 10/31/01 11/30/01 12/31/01 1/31/02 2/28/02 3/31/02 4/30/02 5/31/02 6/12/02 6/30/02 BALANCE DUE CURRENT AMOUNT PAST DUE-BALANCE LATE CHARGE ON P.D. BALANCE @ PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE LORD WF' T WEST MILL CLOTHES, Ir~C. 57-07 31st AVENUE, WOODSIDE, N.Y. 11377-1286 (718) 204-6640 -- Fax (718) 204-6658 D-U-N-S 126-4407 4 CAPITOL TUXEDO, INC. 5517 CARLISLE PIKE **RETAIL ACCOUNT** MLECHANICSBURQ PA 17055 12/31/021 105401 A 7/31/02 73102 231.88 8/31 83102 231.88 9/30/0 93002 224.40 10/31/02 103102 231.88 11/30/( 113002 224.40 7/31/02 8/31/02 99/30/02 10/31/02 11/30/02 PAYMENTS RECEIVED THIS MONTH · O0 BALANCE DUE CURRENT AMOUNT PAST DUE BALANCE I 1 79952. LATE CHARGE ON P.D. BALANCE @ 1. 25% PRIOR UNPAID LATE CHARGES- 9763. 9'2 TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE 179952.14 99763.992 Exhibit C 0 m Iff f-., FI ,-) C ? t': O,, Z < '% .~. m ~ r, Iq f."? :~ ,-1 r~ ,-I m I'q n .q PI l'q ',%' ,-) f..er t~ I~ "~ t~ ~ ts) (~ i~ · ,£~ '-1 'b t5 ID ~5 t5 OS.., ..q m~ 0 0 m I-- fl., lq frt ii* r' k- -q ¢:,, 0 :4 ,~ d'j Ix1 ltJ ,,": lq '4. · I ~: n < ¢.~ 0 ~ ~ 0 "11m 0 "11 -11 ~1 c~ m m 6 .q 3' (:~ C L~ I"1 .q [71 -no Oo ~'z m°g ..q~ m~ 2D r- o ~' --'2. 0 0 ~ C r", l r', Cs l~ :~: r-t :4. 0 "?1 0 '11 CO C 1'4 tM r.d ltl .. Ii] Iii I' ;q ,q n] a. I"1 ,%, -q O '31 'TI ZI (:3 ITl m ~ O f- C r' 4~ ):3: am 0 m m {.'3 :I. ,~. ,:. C/ u ~ m tT~ tim DOg 0 t:'l lq ,. rJ ,ri 0 ~ Iq t:l lq P'I lq · .% PI ,-} ,q ??l ~m om ~ Om m~ 0 wl 1'4 ;?. r'l (/3 :r: I"-t ',~. o~'~ 0:3:: ~:~ ~0 o~ o0} " m "nm 0 'TI C 8 r-~ tn m t~ r,~ t5 ;a ? ITM {.~ Itl [~ {:1 < [:I -.I :~ _ rrl t,~ C ~0 r.n r'r .'fl .-,1 0 ~ < ~) .] 0 C) i'n · ,, ~ :~ rtl ~l) o1', o~, f~ ',"' PI I.'1 .r~ :I. o? m ..q = -,2. 0 it, I'l I,'l f'l I,I .I -i 0 F' 'x 0 ¢-.; ~o~ n O~- r-i~. m -I o ~ 0 '11 m r- Iq ;r, o-'I r' ~: ~. fq t~ (q ~Z tt~ rd. ,,J II In/m Ixl / t'~ m 0 -~'~ ~ z.~' r' ,.-1 :~ :~,, 3'1 33 Ill rq }tJ ~t. 0~ o m' --I m o ~' ..~. 0 o m m F- c :q f~ I"1 Iq :?, r. [.1 i-f ~-~ i'"i i,: I'~ (3 )-~ L(~RD WEST ACCESSORIES 257 RITTENHOUSE CIRCLE P.O. BOX 456, BRISTOL, PA 19007 TEL: 215-785-2300, DUNS 10-142-7631 STATr =.NT DATE ACCT. NO. SLM. t 2/30/02 105400 39 A ~APITOL TUXEDO INC 5517 CARLISLE PIKE CHANICSBURG PA 17055 1 PAGE: DATE TYPE REF. NO. SHIPTO CHARGES'~. ,i - ' ' CREDITS · , DUE DATE 11/30/94 6 113094 62. 40 11/30/94 12/31/94 6 123194 70.37 12/31/94 1/31/95 6 13195 93. 31 1/31/95 2/28/95 6 22895 86. 52 2/28/95 3/31/95 6 33195 62. 93 3/31/95 4/30/95 6 43095 67.20 4/30/95 5/31/95 6 53195 519. 56 5/31/95 &/30/95 6 63095 453.30 6/30/95 7/31/95 6 73195 554. 90 7/31/95 8/31/95 6 83195 622. 79 8/31/95 9/30/95 6 93095 1, 152. 30 9/30/95 10/31/95 6 103195 1,385. 08 10/31/95 11/30/95 6 113095 848i 40 11/30/95 12/31/95 6 123195 911. 71 12/31/95 1/31/96 6 13196 c~20. 70 1/31/96 2129196 6 22996 882. 76 2/29/96 3/31/96 6 33196 979. 91 3/31/96 4/30/96 6 43096 1, 016.40 4/30/96 5/31/96 6 53196 1, 640~ 21 5/31/96 6/30/96 6 63096 - 2, 183, 70 6/30/96 7/31/96~ 6 73196 1, 887.28 7/31/96 ,~CODES 1 -Invoice 2-Credit Memo. 3-Charge Back 4-Cash In Advance 5-Unapplied Cash 6-Late Charges 7-Disbursement 8-Journal Entry-Debit 9-Journal Entry-Credit BALANCE DUE CURRENT AMOUNT PAST DUE BALANCE LATE CHARGE ON P.D. BALANCE @ PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE LATE CHARGES WILL BE ASSESSED AT THE RATE OF PER MONTH ON ALL PAST DUE BALANCES. L(~RD WEST ACCESSORIES 257 R/TTENHOUSE CIRCLE RO. BOX 456, BRISTOL, PA 19007 TEL: 215-785-2300, DUNS 10-142-7631 STATEMEI" DATE ACCT. NO. SLM. t 2/30/02 105400 39 A ~APITOL TUXEDO INC 5517 CARLISLE PIKE CHANICSBURG PA 17055 2 PAGE: DATE TYPE RERN~ SHiPTo ; CHARGES CREDOS .DUEDATE. 8/31/96 6 83196 1,388.80 8/31/96 9/30/96 6, 93096 1,462.20 9/30/96 10/31/96 & 103196 1,218.92 10/31/96 11/30/96 6 113096 1,051.20 11/30/96 12/31/96 6 123196 1,120.34 12/31/96 1/31/97 & 13197 1,257.36. 1/31/97 2/28/97 6 22897 1,183.28 2/28/97 3/31/97 6 33197 1,313.07 3/31/97 4/30/97 & 43097 1,412.10 4/30/97 5/31/97' 6 53197 1,812.57 5/31/97 6/30/97 6 63097 2,111.10 6/30/97 7/31/97 6 73197 1,738.48 7/31/97 8/31/97 6 83197 2,553.16 8/31/97 4/30/98 6 43098 2,424.90 4/30/98 5/31/98 6 53198 2,495.19 5/31/98 6/30/98 6 63098 1,473.60 6/30/98 7/09/98 3 5753 495.52 7/09/98 7/31/98 6 73198 248.~3 7/31/~8 8/31/98 6 83198 350.61 8/31/98 9/30/98 6 93098 363.30 9/30/98 10/31/9.8 6 103198 231.57 10/31/98 CODES 1 -Invdi~ce 2-Credit Memo 3-Charge Back 4-Cash In Advance 5-Unapplied Cash 6-Late Charges 7-Disbursement 8-Journal Entry-Debit 9-Journal Entry-Credit BALANCE DUE CURRENT AMOUNT PAST DUE BA-I:ANCE LATE CHARGE ON RD. BALANCE @ PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE · LATE CHARGES WILL BE ASSESSED AT THE RATE OF PER MONTH ON ALL PAST DUE BALANCES. L(~RD WEST ACCESSORIES 257 RITTENHOUSE CIRCLE ,RO. BOX456, BRISTOL, PA 19007 TEL: 215-785-2300, DUNS I0-142-7631 STATE 'NT DATE ACCT. NO. SLM. 12/30/02 105400 39 A ~PITOL TUXEDO 5517 CARLISLE PIKE CHANICSBURG PA 17055 3 ~GE: DATE TYPE RERNO.' ~HIP~ CHARGES~ i!- cREDITS DUED~E ' 11/30/98 6 113098 22&.80 11/30/98 1/31/99 & 13199 421.&0 1/31/99 2128/~9 b 22899 391.44 2/28/99 3/31/99 6 33199 725.40 3/31/99 4/30/99 6 43099 871.80 4/30/99 5/31/99 6 53199 2,351.66 5/31/99 6/30/99 6 6309~ 1,~93.50 6/30/9~ 7/31/99 6 7319~ 1,55&.82 7/31/99 8/31/~9 6 83199 1,920.76 8/31/99 9/30/~9 6 93099 1,834.20 9/30/99 i0/31/~9 6 103199 1,584141 10/31/99 1i/30/~9 6 11309~ 1,383.&0. 11/30/99 12/31/~9 6 1231~ 1,414.2~ 12/31/~9 1/3.1-/00 6 13100 1,438.71 1/31/00 2/29/00 6 22900 1,39~.&4 2/29/00 3/10/00 I 505346 I 15,85&.&7 5/09/00 3/31/00 6 33100 1,492.96 3/31/00 4/10/001 1 510292 I 7,401.10 8/08/00 4/19/00 1 5I~678 I 7,078.04 8/17/00 4/19/00 1 512679 I 2,201 85 8/17/00 4/24/00 ! 513202 I 5,907.65 8/22/00 CODES 1'2Invoice 2-Credit Memo 3-Charge Back 4-Cash In Advance 5-Unapplied Cash 6-Late Charges 7-Disbursement 8-Journal Entry-Debit 9-Journal Entry-Credit BALANCE DUE CURRENTAMOUNT PAST DUE BALANCE LATE CHARGE ON P.D. BALANCE @ PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE LATE CHARGES WILL BE ASSESSED AT THE RATE OF PER MONTH ON ALL PAST DUE BALANCES. L(~RD WEST ACCESSORIES 257 RIT-I-ENHOUSE CIRCLE PO. BOX 456, BRISTOL, PA 19007 TEL; 215-785-2300, DUNS 10-142-7631 STATEME ~ DATE ACCT. NO. SLM. 12130102 105400 39 A ~APITOL TUXEDO 5517 CARLISLE PIKE ~CHANICSBURO PA 17055 4 PAGE: DATE TYPE RERNO, ~SHIpTO! CHAR~E$: :CRESTS DUED~E 4/24/00 I 513204 I 1,330.75 8/22/00 4/25/00 I 513500 I 1,205.21 8/23/00 4/27/00 I 514017 I 352.92 8/25/00 4/27/00 I 514199 I 500.25 8/25/00 4/28/00 1 514701 I 457.78 8/2&/00 4/30/00 6 43000 1,444.8'0 4/30/00 5/01/00 ! 515247 I 282~89 8/29/00 5/04/00 1 516128 I 19&.74 7/03/00 5/04/00 I 516129 I 371.40 9/01/00 5/09/00 1 516946 1[ 1,507.94 9/06/00 5/09/00 1 516948 I 305.50 9/06/00 5/09/00 I 516949 I 841.20 9/06/00 5/15/00 3 7~15 208~65 5/15/00 5/17/00 I 518972 1 4.62 9/14/00 5/23/00 1 520247 I 173.77 8/13/01 5/31/00 ~ 53100 1,095.85 5/31/00 6/27/00 I 526198 I 129.35 10/25/00 6/30/00 6 &3000 873.30 6/30/00 7/31/00 6 73100 942.40 7/31/00 8/31/00 6 83100 1,421.97 8/31/00 9/30/00 ~ 93000 1,440.00 9/30/00' ~'( CODES 1-1m;~ice 2-Credit Memo 3-Charge Back 4-Cash In Advance 5-Unapplied Cash 6-Late Charges 7-Disbursement 8-Journal Entry-Debit 9-Journal Entry-Credit' BALANCE DUE CURRENT AMOUNT PAST DUE BALANCE LATE CHARGE ON P.D. BALANCE @ PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE LATE CHARGES WILL BE ASSESSED AT THE RATE OF PER MONTH ON ALL PAST DUE BALANCES. LI~RD WEST ACCESSORIES 257 RITTENHOUSE CIRCLE I~0. BOX456, BRISTOL, PA 19007 TEL: 215-785-2300, DUNS 10-142-7631 STATEMEF' DATE ACCT. NO. SLM. 12/30/02 105400 3c/ A ~APITOL TUXEDO INC 5517 CARLISLE PIKE CHANICSBUR~ PA 17055 PAGE: DATE TYPE ! RER!N~ : :! SHIPTO~ ii: !::-cH~RGESi:!~!;'ii;~ i CREDITS ,DUE D~E !: 10/31/00 6 .103100 1,492.34 10/31/00 11/30/00 6 113000 1,444.20 11/30/00 12/31/00 6 123100 1,492.34 12/31/00 1/31/01 6 13101 1,492.34 1/31/01 2/28/01 6 22801 1,343.44 2/28/01 3/31/01 6 33101 1,487.38 3/31/01 4/30/01 6 43001 1,404.90 4/30/01 5/31/01 6 53101 1,240.93 5/31/01 &/30/01 6 63001 962.40 &/30/01 7/31/01 6 73101 993.86~ 7/31/01 8/31/01 6 831~01 ~96.'&5 8/31/01 ~/30/01 ~ ~3001 964.50 9/30/01 10/31/01 & 103101 996.65 10/31/01 11/30/01 & 113001 964.50 11/30/01 12/31/01 6 123101 926.28 12/31/01 1/31/02 6 13102 926.28 1/31/02 2/28/02 & 22802 836.64 2/28/02 3/08/02 I 595467 1 51.44 4/07/02 3/31/02 6 33102 926.28 3/31/02 4/18/02 I 602222 I 53.61 5/18/02 4/30/02! 6 43002 733.-50 4/30/02 CODES 1 -Inv&~ce 2-Credit Memo 3-Charge Back 4-Cash In Advance 5-UnappliedCash 6-Late Charges 7-Disbursement 8-Jourdal Entry-Debit 9-Journal Entry-Credit · BALANCE DUE CURRENT AMOUNT PAST DUE BALANCE I_ATE CHARGE ON RD. BALANCE @ PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE LATE CHARGES WILL BE ASSESSED AT THE RATE OF PER MONTH ON ALL PAST DUE BALANCES. PAGE: LdRD WEST ACCESSORIES 257 RITTENHOUSE CIRCLE PO. BOX 456, BRISTOL, PA 19007 TEL: 215-785-2300, DUNS 10-142-7631 STATEM T DATE ACCT. NO. SLM. 12/30/0~ 105400 39 A ~FAPITOL TUXEDO INC 5517 CAR:LISLE PIKE CHANICSBURO PA 17055 'D~E TYPE · REE.NO. SHIPTO . CHAR~'ES CREDITS ,DUED~E 5/06/02 1 60&047 1 78.35 &/05/02 5/31/02 & 53102 760.74 5/31/02 &/13/02 I 612050 I 180.34 7/13/02 ~/1~/02 5 &1902 .30- &/19/02 &/30/02 ~ &3002 873.30 &/30/02 7/25/02 I 615821 I 153.02 8/24/02 7/31/02 & 73102 822.74 7/31/02 8/31/02 6 83102 803,83 8/31/02 ?/30/02 ~ ?3002 756,00 9/30/02 10/31/02 6 103102 733,46 10/31/02 11/30/02 6 113002 707,-80 11/30/02 ruxAccoq~ S~IPPIN~ DEPT. WILL BE CLOSED -1,'1/03 THRU 1~8/03 FOR INVEI PAYMENTS RECEIVED THIS MONTH .00 CODES 2-Credit Memo 3-Charge Back 4-Cash In Advance 5-Unapplied Cash 6-Late Charges 7-Disbursement 8-Journal Entry-Debit 9-Journal Entry-Credit BALANCE DUE CURRENT AMOUNT PAST DUEBALANCE 4732&. 26 LATE CHARGE ON RD. BALANCE@ 1. 5% PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE 98670. 53 47326.2& 98&70.53 LATE CHARGES WILL BE ASSESSED AT THE RATE OF PER MONTH ON ALI PAST DUE BALANCES. 1. 5% L(~RD WEST ACCESSORIES 257 RITTENHOUSE CIRCLE I~0, BOX 456, BRISTOL, PA 19007 TEL: 215-785-2300, DUNS 10-142-7631 STATEMENT DATE ACCT. NO. SLM. 12/30/02 105401 39 A FCAPITOL TUXEDO RETAIL 5517 CARLISLE PIkE CHANICSBURQ PA 17055 1 PAGE: ~ATE r~E RERNO. SHIPTO CHARGES ~ ' CREDITS .DUEDATE 1/31/98 6 .13198 11.16 1/31/98 2/28/~8 6 22898 14.28 2/28/98 3/31/98 6 33198 17.36 3/31/98 4/30/98 6 43098 18.60 4/30/98 5/31/98 6 53198 435.24 5/31/98 6/30/98 6 63098 432.60 6/30/98 7/31/98 ~ 73198 711.14 7/31/98 8/31/98 6 83198 748.65 8/31/98 9/30/98 6 93098 711.60 9/30/98 10/31/98, & i03198 734.08 10/31/98 11/30/98 6 113098 336.90 11/30/98 1/31/99 6 13199 384.09 1/31/99 2/28/99 6 22899 355.&0 2/2B/99 3/31/99 6 33199 392.46 3/31/99 4/30/99 6 43099 414.00 4/30/99 5/31/99 6 53199 353.71 5/31/99 6/30/99 6 63099 4.80 6/30/99 7/31/99 6 73199 3.10 7/31/99 8/31/99 6 83199 7.44 8/31/99 9/30/99 6 93099 9.60 9/30/9~ 10/31/99 6 10319~ 6.20 10/31/~ CODES 1 -Invoi~:~ 2-Credit Memo 3-Charge Back 4-Cash In Advance 5-Unapplied Cash 6-Late Charges 7-Disbursement 8-JoUrnal Entry-Debit 9-Journal Entry-Credit BALANCE DUE CURRENTAMOUNT PAST DUE BALANCE LATE CHARGE ON RD. BALANCE '@ PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE LATE CHARGES WILL BE ASSESSED AT THE RATE OF PER MONTH ON ALL PAST DUE BALANCES. L~RD WEST ACCESS DRIES 257 RITTENHOUSE CIRCLE RD. BOX456, BRISTOL, PA 19007 TEL: 215-785-2300, DUNS 10-142-7631 STATEMEf' DATE ACCT. NO. SLM. 12/30/02 105401 39 FCAPITOL TUXEDO RETAIL 5517 CARLISLE PIKE CHANICSBURQ PA 17055 PAGE: 'DATE ~PE RERNO. ~SHIPTO CHARGES CREDI~ ,DUEDATE 11/30/99 6 ,113099 5.10 11/30/99 1/31/00 6 13100 7.44 1/31/00 2/29/00 & 22900 15.95 2/29/00 3/31/00 6 33100 19.53 3/31/00 4/30/00 6 43000 2~6.70 4/30/00 5/31/00 & 53100 305.04 5/31/00 6/30/00 6 63000 317.70 6/30/00 7/31/00 6 73100 381.61 7/31/00 8/31/00 6 83100 381.72 8/31/00 9/30/00 6 93000 369.30 9/30/00 10/31/00 6 i03100 377.58 10/31/00 11/30/00 6 113000 3441.40 11/30/00 12/31/00 6 i23100 327.36 12/31/00 1/31/01 6 13101 323.02 1/31/01 2/28/01 6 22801 282.80 2/28/01 3/31/01 6 33101 305.04 3/3'1/01 4/30/01 6 43001 292J20 4/30/01 5/31/01 & 53101 279.15 5/31/01 6/30/01 6 63001 289.50 6/30/01 7/31/01 6 73101 279. 15 7/31/01 8/31/01 ~ 83101 228.47 8/31/01 0 CODES 1 -Invo[~:e 2-Credit Memo 3~Charge Back 4-Cash In Advance 5-Unapplied Cash 6-Late Charges 7-Disbursement 8-Journal Entry-Debit 9-Journal Entry-Credit BALANCE DUE CURRENTAMOUNT PAST DUE BALANCE LATE CHARGE ON P.D. BALANCE@ PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE · LATE CHARGES WILL BE ASSESSED AT THE RATE OF PER MONTH ON ALL PAST DUE BALANCES. LORD WEST ACCESSORIES 257 RITTENHOUSE CIRCLE P.O. BOX456, BRISTOL, PA 19007 TEL: 215-785-2300, DUNS 10-142-7631 STATEME"' ' DATE ACCT. NO. SLMi'" t2/30/02 105401 3c) A FCAPITOL TUXEDO RETAIL 5517 CARLISLE PIKE CHANICSBURO PA 17055 3 PAGE: DATE TYPE, .RERNO. . BHIPTO CHARG~ CREDOS .DUEDATE 9/30/01 6 93001 221.10 9/30/01 I0/31/01 6 103101 227.23 10/31/01 11/30/01 6 113001 218.40 11/30/01 12/31/01 6 123101 14.57 12/31/01 1/31/02 6 13102 14.57 1/31/02 2/28/02 6 2~2802 13.1& 2/28/02 3/31/02 6 33102 14.57 3/31/02 4/30/02 6 43002 14.10 4/30/02 5/31/02 6 53102 15.19 5/31/02 TUXACCO'~i SFIPPINO DEPT. WILL BE CLOSED I 1/03 THRU 1'8/03 FOR INVE~ PAYMENTS RECEIVED THIS MONTH .00 ITi CODES 1 -In~)ice 2-Credit Memo 3-Charge Back 4-Cash In Advance 5-Unapplied Cash 6-Late Charges 7-Disbursement 8-Journal Entry-Debit 9-Journal Entry-Credit BALANCE DUE CURRENT AMOUNT I PAST DUE BALANCE LATE CHARGE ON RD. BALANCE @ 1. 5% PRIOR UNPAID LATE CHARGES TOTAL LATE CHARGES DUE TOTAL AMOUNT DUE 12294.46 12294.46 12294.46* LATE CHARGES WILL BE ASSESSED AT THE RATE OF PER MONTH ON ALL PAST DUE BALANCES. 1. 5% CERTIFICATE OF SERVICE And now, this } ~'~day of (~~ _, 2003, I, Patricia Z. Glusko, a secretary with the law firm of Duane Morris, LLP, do hereby certify that I have served a tree and correct copy of the foregoing document on the person(s) listed below at their respective addresses, via first-class mail, postage prepaid. Capital Tuxedo, Inc. 5517 Carlisle Pike Mechanicsburg, PA 17055 Markian Slobodian, Esquire 801 North Second Street Harrisburg, PA 17102 HBG\I 11564.1 CAPITOL TUXEDO, INC., WEST MILL CLOTHES, INC., : IN THE COURT OF COMMON PLEAS OF d/b/a LORD WEST and TUXACCO, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : : NO. 02-5539 CIVIL TERM : Defendant : PRELIMINARY OB ECTIONS TO AMENDED COMPLAINT NOW COMES, Defendant, Capitol Tuxedo, Inc. ("Capitol Tuxedo") and makes the following Preliminary Objections to Plaintiffs' Complaint in the above-referenced case: I. Failure of PIeadin to Conform to Law or Rule of Court 1. In Paragraph 6 of their Complaint, Plaintiffs make reference to Defendant's request to purchase goods and materials from Plaintiffs. 2. In Paragraph 7 of their Complaint, Plaintiffs make reference to a valid and binding contract between the parties based on "the above-mentioned business relationship.' 3. In Paragraph 10 of their Complaint, Plaintiffs indicate that they have "regularly provided Defendant with invoices for amounts due and owing." 4. In Paragraph 11 of their Complaint, Plaintiffs allege that Defendant was obligated to pay the amounts allegedly due and owing as represented on the invoices. 5. In Paragraph 14 of their Complaint, Plaintiffs allege that "in accordance with the parties [sic] agreement as aforesaid, Capitol Tuxedo has also been assessed late charges for untimely paid amounts and for invoices which have gone unpaid totaling $70,093.39. A copy of Capitol Tuxedo [sic] account evidencing outstanding and late charges is attached hereto as Exhibit 'B'.' 6. In Paragraph 16 of their Complaint, Plaintiffs allege that "Capitol Tuxedo's purchase of goods and materials from West Mill Clothes on open account and West Mill Clothes furnishing of such goods and materials, created a valid and binding contract between the parties whereby Capitol Tuxedo became obligated to pay the full amount due and owing for such goods and materials, together with any and all properly assessed late charges." 7. In Paragraph 29 of their Complaint, Plaintiffs allege that "Tuxacco regularly provided Capitol Tuxedo with invoices for amounts due and owing. Copies of the invoices are attached hereto and marked as Exhi -' ...... blt t_. 8. In Paragraph 30 of their Complaint, Plaintiffs allege that Capitol Tuxedo is obligated to pay the amount due and owing as represented on the invoices. 9. In Paragraph 33 of their Complaint, Plaintiffs allege that "Capitol Tuxedo has also been assessed late charges for untimely paid amounts and for invoices which have gone unpaid totaling $110,964.99. A copy of the Capitol Tuxedo account evidencing outstanding invoices and applicable late charges is attached hereto and marked as Exhibit 'D'.' 10. In their account statements attached as Exhibits "B' and "D', Plaintiffs make numerous references to what appear to be late charge invoices, each of which is identified by a specified reference number. 11. Plaintiffs fail to provide copies of any of the late charge invoices. 12. Plaintiffs fail to provide any information whatsoever as to what invoice or invoices each of the itemized late charges are assessed against. 13. Pa. R.C.P. 1019(h) states that "When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or men. wr"' 14. Pa. R.C.P. 1019(0 states in relevant part that "When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof .... ' 15. Plaintiffs have failed to indicate whether their contract with Defendant, as specified in Paragraph 6 of their Complaint, is based on written requests or verbal requests in violation of Pa. R.C.P. 1019(h). 16. To the extent Plaintiffs' alleged contract with Defendant is based on "written" requests, Plaintiffs have failed to attach a copy of the writing or writings on which their claim for late charges is based in violation of Pa. R.C.P. 1019(i). 17. Plaintiffs have failed to attach a copy of the "late charge invoices" referenced in their Exhibits "B' and "D'. 18. Plaintiffs' failure to attach copies of the late charge invoices violates the requirement of Pa. R.C.P. 1019(i). 19. Pa. R.C.P. 1028(a)(2) authorizes a party to file Preliminary Objections on the basis of the "failure of a pleading to conform to law or rule of court .... " 20. Plaintiffs' Complaint fails to conform to Pa. R.C.P. 1019(h) and Pa. R.C.P. 1019(i). WHEREFORE, Defendant Capitol Tuxedo, Inc., requests that this Court enter an Order dismissing Counts I and III of Plaintiffs' Complaint for failure to conform to law or rule of court pursuant to Pa. R.C.P. 1028(a)(2). II. .Failure of Pleading to Conform to Law 21. In their prayers for relief with regard to "Count II - Quantum Meruit" and "Count IV - Quantum Meruit"of their Complaint, Plaintiffs request that the Court award them the sums of One Hundred Forty-Six Thousand Eight Hundred One Dollars and 79/100 ($146,801.79) and One Fifty-Eight Thousand Two Hundred Ninety-One Dollars and 25/100 ($158,298.25) respectively. 22. In Counts II and IV of their Complaint, Plaintiffs have included late charges in their calculation of amounts owed. 23. As a mater of law, Plaintiffs are not entitled to interest on their quantum meruit claim. 24. Pa. R.C.P. 1018(a)(2) authorizes a party to file Preliminary Objections on the basis of the "failure of a pleading to conform to law or rule of court .... " 25. Plaintiffs' request for pre-judgment interest on its quantum meruit claim fails to conform to law. WHEREFORE, Defendant, Capitol Tuxedo, Inc., requests that this Court enter an Order dismissing Counts II and IV of Plaintiffs' Complaint for failure to comply to law pursuant to Pa. R.C.P. 1028(a)(2). III. Motion for More Specific Statemenl 26. In Counts I, IL III, and IV of their Complaint, Plaintiffs seek the recovery of late charges. due. 27. Plaintiffs fa_il to indicate how they calculated the amount of late charges allegedly 28. With regard to each late charge set forth in Exhibits "B' and "D', Plaintiffs have failed to identify the invoice for which payment is allegedly late and for which the charge is allegedly assessed. 29. Pa. R.C.P. 1028(a)(3) authorizes a party to file Preliminary Objections on the basis of sumc~ent specificity in a pleading." 30. Plaintiffs' Complaint lacks sufficient specificity to provide Defendant with the information it needs to form a meaningful evaluation of the truth and accuracy of Plaintiffs' averments and to formulate a meaningful defense. WHEREFORE, Defendant, Capitol Tuxedo, Inc., requests that this Court enter an Order dismissing Plaintiffs' Complaint for insufficient specificity or, in the alternative, that this Court enter an Order requiring Plaintiffs to plead with greater specificity. Respectfully submitted, LAW OFFICES of MARKIAN R. SLOBODIAN MARKIAN R. SLOBODIAN, ESQ. I.D. # 41075 ANDREW R. EISEMANN, ESQ. I.D. #87441 801 North Second Street Harrisburg, PA 17102 717/232-5180 Counsel for Capitol Tuxedo, Inc. ~CERTIFICATE OF SERVICE I, hereby certify that I have, this date, served a true and correct copy of the foregoing Preliminary Objections by U.S. Mail, first class, postage prepaid, addressed to the following individual(s): Thomas L. Isenberg, Jr., Esq. Dwayne, Morris & Hecksher 305 North Front Street P.O. Box 1003 Harrisburg, PA 17108-1003 Dated: MARKIAN R. SLOBODIAN, ESQ. WEST MILL CLOTHES, INC., d/b/a LORD WEST and TUXACCO, INC., Plaintiffs Ye CAPITOL TUXEDO, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-5539 CIVIL TERM PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT NOW COMES, Defendant, Capitol Tuxedo, Inc. ("Capitol Tuxedo") and makes the following Preliminary Objections to Plaintiffs' Complaint in the above-referenced case: I. Failure of Pleading to Conform to Law or Rule of Court 1. In Paragraph 6 of their Complaint, Plaintiffs make reference to Defendant's request to purchase goods and materials from Plaintiffs. 2. In Paragraph 7 of their Complaint, Plaintiffs make reference to a valid and binding contract between the parties based on "the above-mentioned business relationship." 3. In Paragraph 10 of their Complaint, Plaintiffs indicate that they have "regularly provided Defendant with invoices for amounts due and owing." 4. In Paragraph 11 of their Complaint, Plaintiffs allege that Defendant was obligated to pay the amounts allegedly due and owing as represented on the invoices. 5. In Paragraph 14 of their Complaint, Plaintiffs allege that "in accordance with the parties [sic] agreement as aforesaid, Capitol Tuxedo has also been assessed late charges for untimely paid amounts and for invoices which have gone unpaid totaling $70,093.39. A copy of Capitol Tuxedo [sic] account evidencing outstanding and late charges is attached hereto as Exhibit 'B'." 6. In Paragraph 16 of their Complaint, Plaintiffs allege that "Capitol Tuxedo's purchase of goods and materials from West Mill Clothes on open account and West Mill Clothes furnishing of such goods and materials, created a valid and binding contract between the parties whereby Capitol Tuxedo became obligated to pay the full amount due and owing for such goods and materials, together with any and all properly assessed late charges." 7. In Paragraph 29 of their Complaint, Plaintiffs allege that "Tuxacco regularly provided Capitol Tuxedo with invoices for amounts due and owing. Copies of the invoices are attached hereto and marked as Exhibit 'C'." 8. In Paragraph 30 of their Complaint, Plaintiffs allege that Capitol Tuxedo is obligated to pay the amount due and owing as represented on the invoices. 9. In Paragraph 33 of their Complaint, Plaintiffs allege that "Capitol Tuxedo has also been assessed late charges for untimely paid amounts and for invoices which have gone unpaid totaling $110,964.99. A copy of the Capitol Tuxedo account evidencing outstanding invoices and applicable late charges is attached hereto and marked as Exhibit 'D'.' 10. In their account statements attached as Exhibits "B" and "D", Plaintiffs make numerous references to what appear to be late charge invoices, each of which is identified by a specified reference number. 11. Plaintiffs fail to provide copies of any of the late charge invoices. 12. Plaintiffs fail to provide any information whatsoever as to what invoice or invoices each of the itemized late charges are assessed against. 13. Pa. R.C.P. 1019(h) states that "When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written." 14. Pa. R.C.P. 1019(0 states in relevant part that "When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof .... " 15. Plaintiffs have failed to indicate whether their contract with Defendant, as specified in Paragraph 6 of their Complaint, is based on written requests or verbal requests in violation of Pa. R.C.P. 1019(h). 16. To the extent Plaintiffs' alleged contract with Defendant is based on "written" requests, Plaint~/fs have failed to attach a copy of the writing or writings on which their claim for late Charges is based in violation of Pa. R.C.P. 1019(0. 17. Plaintiffs have failed to attach a copy of the "late charge invoices" referenced in their Exhibits "B" and "D". 18. Plaintiffs' failure to attach copies of the late charge invoices violates the requirement of Pa. R.C.P. 1019(0. 19. Pa. R.C.P. 1028(a)(2) authorizes a party to file Preliminary Objections on the basis of the "failure of a pleading to conform to law or rule of court .... " 20. Plaintiffs' Complaint fails to conform to Pa. R.C.P. 1019(h) and Pa. R.C.P. 1019(i). WHEREFORE, Defendant Capitol Tuxedo, Inc., requests that this Court enter an Order dismissing Counts I and III of Plaintiffs' Complaint for failure to conform to law or rule of court pursuant to Pa. R.C.P. 1028(a)(2). II. Failure of Pleading to Conform to Law 21. In their prayers for relief with regard to "Count II - Quantum Meruit" and "Count IV - Quantum Meruit"of their Complaint, Plaintiffs request that the Court award them the sums of One Hundred Forty-Six Thousand Eight Hundred One Dollars and 79/100 ($146,801.79) and One Fifty-Eight Thousand Two Hundred Ninety-One Dollars and 25/100 ($158,298.25) respectively. 26. charges. 27. due. 28. 22. In Counts II and IV of their Complaint, Plaintiffs have included late charges in their Calculation of amounts owed. 23. As a mater of law, Plaintiffs are not entitled to interest on their quantum meruit claim. 24. Pa. R.C.P. 1018(a)(2) authorizes a party to file Preliminary Objections on the basis of the "failure of a pleading to conform to law or rule of court .... " 25. Plaintiffs' request for pre-judgment interest on its quantum meruit claim fails to conform to law. WHEREFORE, Defendant, Capitol Tuxedo, Inc., requests that this Court enter an Order dismissing Counts II and IV of Plaintiffs' Complaint for failure to comply to law pursuant to Pa. R.C.P. 1028(a)(2). III. Motion for More Specific Statement In Counts I, II, III, and IV of their Complaint, Plaintiffs seek the recovery of late Plaintiffs fail to indicate how they calculated the amount of late charges allegedly With regard to each late charge set forth in Exhibits "B" and "D", Plaintiffs have failed to identify the invoice for which payment is allegedly late and for which the charge is allegedly assessed. 29. Pa. R.C.P. 1028(a)(3) authorizes a party to file Preliminary Objections on the basis of "insUfficient specificity in a pleading." 30. Plaintiffs' Complaint lacks sUfficient specificity to provide Defendant with the information it needs to form a meaningful evaluation of the truth and accuracy of Plaintiffs' averments and to formulate a meaningful defense. WHEREFORE, Defendant, Capitol Tuxedo, Inc., requests that this Court enter an Order disrrdssing Plaintiffs' Complaint for insufficient specificity or, in the alternative, that this Court enter an Order requiring Plaintiffs to plead with greater specificity. Respectfully submitted, LAW OFFICES of MARKIAN R. SLOBODIAN MARKIAN R. SLOBODIAN, ESQ. I.D. # 41075 ANDREW R. EISEMANN, ESQ. I.D. #87441 801 North Second Street Harrisburg, PA 17102 717/232-5180 Dated: q I ~el ~ Counsel for Capitol Tuxedo, Inc. CERTIFICATE OF SERVICE I, hereby certify that ! have, this date, served a true and correct copy of the foregoing Preliminary Objections by U.S. Mail, first class, postage prepaid, addressed to the following individual(s): Thomas L. Isenberg, Jr., Esq. Dwayne, Morris & Hecksher 305 North Front Street P.O. Box 1003 Harrisburg, PA 17108-1003 MARKIAN R. SLOBODIAN, ESQ. Dated: PRAECIPE FOR LISTING CASE FOR ARGUMENT (~t ~ typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pl~a-~e ]ist the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in f~ll) WEST MILL CLOTHES, INC., d/b/a LO~D WEST and ~JXACCO, INC., ( PI a~ ntiff ) CAPITAL ~JXEDO, INC. , ( Defer~ant ) No. 5539 Civil Term 1~ 2002 1. State matter to be ged (i.e., plaintiff's motion for new tri~], defendant's demurrer to c~la~nt, etc. ): Def~dant Capital Tuxedo, Inc. 's Preliminary Objectic~s to Plaintiff's Auended Camplaint. 2. Identify counsel who w~ll argue case: e (a) for plaintiff: ~u~t~ess: Thc~as L. Isenberg, Jr. Duane Morris, LLP 305 North Front Street, 5th Floor, P.O. Box 1003 (b) for defendant: Harrisbu~9, PA 17108-1003 ;~ess: Markian R. Slobodian, Esq. 801 North Sedond Street ~ Harrisburg, PA 17102 I w~ ] ] notify al ] parties in writing within two days that this case has been listed for ~t. 4. Arg~ne~t Court Date: July 23, 2003 Attorney for CERTIFICATE OF SERVICE And now, this 4th day of June, 2003, I, Patricia Z. Glusko, a secretary with the law firm of Duane Morris, LLP, do hereby certify that I have served a tree and correct copy of the foregoing document on the person(s) listed below at their respective addresses, via first-class mail, postage prepaid. Markian R. Slobodian, Esq. 801 North Second Street Harrisburg, PA 17102 WEST MILL CLOTHES, INC., d/b/a LORD WEST and TUXACCO, INC., Plaintiffs, CAPITAL TUXEDO, INC., Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : NO. 02-5539 Civil Term DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT Before HOFFER, P.J. and HESS, J. ORDER OF THE COURT AND NOW, this 29th day of September, 2003, after careful consideration, it is hereby ORDERED that Defendant's Preliminary Objections to Count I and Count III of Plantiffs' Amended Complaint are DISMISSED. By agreement of the parties, Defendant's Preliminary Objection to Count II (quantum meruit) in which Plaintiffs seek the recovery of interest at 15% is hereby GRANTED. Accordingly, Count II of Plaintiffs' Amended Complaint shall reflect Plaintiffs' demand for prejudgment interest to be calculated at the legal rate. --'rhomas L. Isenberg, Jr., Esquire DUANE MORRIS, LLP Attorney for Plaintiffs ,--Markian R. Slobodian, Esquire Attorney for Defendant By the Court: