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SHERIFF'S RETURN - REGULAR
CASE NOI t997-02352 P
COMMONWEALTH OF PENNSYLVANIA I
COUNTY OF CUMBERLAND
FOK I!JCHAEL C
VS.
S CLYDE WEAVER ~~C__~T A~___
MICHAEL BARRICK . Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, BaYB, the within WRIT OF SUMMONS was s.rved
the
upon S CLYDE WEAVER INC
defendant, at 1239100 HOURS,
1997 at WEST SHORE FARMERS'
LEMOYNE. PA 17043
on the
~ day of
900 MARKET
"ay
.
STREET
. CUMBERLAND
County, Pennsylvania. by handing to BEN NEFF. ~DULT IN CHARGE AND
MARKET
.
SON OF OWNER
a true and attested copy of the WRIT OF SUMMONS
and at the same time directing ~t~ attention to the contents thereof.
Shariff's COStSI
Docketing
Service
Affidavit
Surcharge
18.00
9.92
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2.00
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e29.92 MICHAEL FOK
05/19/1997
by "
Sworn and subscribed to before me
this t? a:. day of "...."
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19 (;7 A.D.
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I rothonotary
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NIKO~HoHENADEL
& UMBENHAUER
.1. NORTH QUZlN _TRIIT
LANCASTER, PI\. 171103
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. YOU MIf HIRIDY "OTI,.,IO .TO 'LEAO TO
'fl!_ PfCLoIIO . WITHIN
In -::1 . DAYI OF .'''Vles HIIIIOI'
0" A DeFAULT - .NDONINY NAY Ie
I;tnnIrD AllAINIT YOu. .
vs.
No. 97-2352
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
MICHAEL C. FOX,
Plaintif f
S. CLYDE WEAVER, INC. and
SAHADI IMPORTING, Defendants
PRAECIPE
TO THE PROTHONOTARY:
Please enter the appearance of NIKOIJmS & HOHENADEL, by
MICHAEL J. HOHENADEL, Esquire, for the Defendant, S. CLYDE WEAVER,
INC., in the above-captioned action.
Respectfully Submitted,
NIKOLAUS & HOHENADEL
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BY:
Michael J. H~h n~ael, Esquire
Attorneys for efendant
S. Clyde Wea ,r, Inc.
Court 1.0. #27687
109 South Market Street
Elizabethtown, PA 17022
(717) 367-9440
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111 NORTH QUI.IN STRIIT
LANCASTER, PA, 171103
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
MICHAEL C. FOX,
Plaintiff
vs.
No. 97-2352
S. CLYDE WEAVER, INC. and
SAHADI IMPORTING, Defendants
PRAECIPE FOR RULE TO FILE COMPLAINT
TO THE PROTHONOTARY:
Please enter a Rule to File a Complaint upon the Plaintiff in
the above-captioned matter with twenty (20) days of the Rule or
suffer a Judgment of Non Pros.
Respectfully Submitted,
NIKOLAUS & HOHE,NADEL
BY: I~(~k ~~ 0.;/;~L?1w
~ichael 'J. Hgh~ a l, Esquire
Attorneys fot/Defendant
S. Clyde Weaver, Inc.
Court 1.0. #27687
109 South Market Street
Elizabethtown, PA 17022
(717) 367-9440
AND NOW,
Rule has been
this L"'I... day of t L A 15
entered upon the Plaintiff as
, 1997, a
above directed.
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1.11 W OFFICES OF RALPH F. TOUCH
fly: Jeffrey S, Lee, Esquire
Attorney I,D, No. 69952
40 I Penn Street, Suite 100
Reading, PA 19601
Tel. 610-320-4248 Fax 610-320-4767
Attorney for Defendant,
Sahadi Importing
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY PENNSYLVANIA
Michael C. Fox" ) CIVIL DIVISION
)
PLAINTIFF, ) NO, 97-2352
)
VS. )
)
S. Clyde Weaver, Inc. )
and )
Sahadi Importing Inc., )
)
DEFENDANTS. )
RULE TO FILE COMPLAINT
~
AND NOW, this It day of ' . 19rJ7, a Rule is entered under Pennsylvania
Rule of Civil Procedure 1037 upon the Plainlt in the above-captioned matter to file a Complaint
within twenty (20) days from the service of this Rule or otherwise suffer Judgment of NOli Pros.
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197300 III
.
CERTIFICATION OF SERVICE
I hereby certifY that I have served a copy of the foregoing document(s) upon all parties, their
attorneys or representatives, and all other relevant organizations, in the manner(s) set forth below:
I. By first-class. United States mail. postage prepaid:
Michael C. Fox, Esquire
P.O. Box3165
Harrisburg, P A I7I 05
Michael J. Hohenadel, Esquire
Nikolaus Hohenadel
109 S. Market St.
Elizabethtown, PAl 7022
Dated: Julv] 5. ] 997
e Esquire
r efendant,
ing
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8. Immediately afler biting down on the supposedly "pilled olive", Fox took an olive
pit from his mouth.
9. Afler this ineident, Fox had sensitivity to hot and cold temperatures and pressure
when drinking liquids. eating food and ehewing on the right side of his jaw.
10. Fox was scheduled for a regular appointment with his dentist, Dr. Unger, D.D.S.,
on or about May 17, 1995 and reported this incident to Dr. Unger at that time.
II. During the May 17, 1995 appointment with Dr. Unger, Dr. Unger infonned Fox
of a "potential cracked tooth syndrome" that could eventually worsen and require a crown and/or
possible root canal treatment.
12. The sensitivity to pressure and temperature improved for a period of time, but
then began to return, and worsened over time, resulting in a crown procedure on Tooth No.3 by
Dr. Unger, which dental work began on November 5, 1996.
13. During the crown procedure, Dr. Unger discovered a erack in the palatal wall of
Tooth No.3 and referred Fox to a Board Certified Endodontist, Dr. H. Rankow, who pcrfonned a
root canal on Tooth No.3 on November 15,1996.
14. Dr. Unger completed the crown work at subsequent appointments on December
18,1996andJanuary4,1997.
15. During subsequent treatment with Mr. Fox, Dr. Unger advised him that even with
the treatment received, there is a substantial likelihood that he may eventually lose Tooth No.3
and need subsequent treatment to replace it.
16. Fox sufTered damage to a molar on the upper right side of his jaw, specifically
Tooth No.3, as a direct result of biting into the olive pit as stated above.
17. Fox has sufTered pain and discomfort as a result of the injury to Tooth No.3, both
as a result of the injury, and as a result of the dental treatment required to repair the tooth.
18. Fox has incurred expenses for dental treatment and has a substantial likelihood of
incurring additional dental expenses in the future, and of sufTering additional pain and
discomfort, as c result of the injury described in this Complaint.
COUNT I - NEGLIGENCE
19. Defendants had a duty to produce, manufacture, distribute, and/or sell olives
which contained no pits as they promoted and/or marketed and/or advertised.
2
20.
situated.
Defendants breaehed this duty owed to Fox und other consumers similarly
21.
alleged.
As a result of Defendants negligence. Fox was und is damuged and injured as
WHEREFORE, Plaintiff, Michael C. Fox, respectfully requests this Honorable Court to
awurd him damages as a result of Defendants negligence in excess of$IO,OOO.OO.
COUNT II - STIUCT L1AIJILlTY
22. Defendants are in the business of manufacturing and/or producing and/or
distributing and/or selling olives whieh they promoted as being without pits.
23. These allegedly pitted olives are products within the meaning of Seetion 402A of
the Restatement of (Second) of Torts.
24.
of Torts.
Fox is u consumer within the meaning Section 402A of the Restatement (Second)
25. As u result of a design and/or manufacturing defect and/or a failure to warn, Fox
came into possession of a defective olive.
26. As a result of the design and/or manufacturing defect, the "pitted" olive actually
contained a pit.
27. As a result of Defendant's defective product, Fox was and is damaged and/or
injured as alleged.
WHEREFOR, Plaintiff, Michael C. Fox, respectfully requests this Honorable Court to
enter judgment in his favor against the Defendants in an amount in excess of$IO.OOO.OO.
COUNT III - BREACH OF WARRANTY
28. Defendants expressly and impliedly warranted that the olives contained no pits.
29. In addition. Defendants advertised and/or promoted and/or warranted that the
olives contained no pits.
30. Relying upon these representations and warranties, Fox attempted to consume one
of these olives.
3
31. The subject olive was not in the condition warranted by Defendants.
32. Defcndants breached any and all warranties, express and/or implied, made to
consumers such as Fox.
33. As a direct and sole result of the breach of express and/or implied warranties, Fox
was damaged and injured as previously mentioned.
WHEREFORE, Plaintiff, Michael C. Fox, respcctfully requests that this Honorable Court
enter judgment in his favor and award damages exceeding $10,000.00.
Respectfully submitted:
.~
4
MICHAEL C. FOX,
Plaintiff
CUMBERLAND COUNTY COURT OF
COMMON PLEAS
V5.
Docket No. 97-2352
S. CLYDE WEAVER, INC. Rnd
SAHADI IMPORTING, INC.
Jury Trial Demanded
VERIFICATION
I, Michael C. Fox, hereby state and affinn that the allegations made in this Complaint lITe
true and correct to the best of my knowlcdgc and bclicf.
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Miehacl C. Fox
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LA W OFFICES OF RALPH F. TOUCH
By: 1effrey S. Lee, Esquire
Attorney 1.0. No. 69952
40 I Penn Street, Suite 100
Reading, PA 19601
Tel. 610-320-4248 Fax 610-320-4767
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Attorney for Defendant,
Sahadi Importing
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY PENNSYLVANIA
Michael C. Fox" ) CIVil.. DMSION
)
PLAINTIFF, ) NO. 97-2352
)
VS. )
)
S. Clyde Weaver, Inc. )
and )
Sahadi Importing Inc., )
)
DEFENDANTS. )
RULE TO FILE COMPLAINT
AND NOW, this l'it day of /2".4 ' 19CJJ, a Rule is entered under Pennsylvania
Rule of Civil Procedure 1037 upon the pfaintitfin the above-captioned matter to file a Complaint
within twenty (20) days from the service of this Rule or othelWise suffer 1udgment of Non Pros.
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1SU'mk TRUE COpy FRC\\A RECORD
J In Testmlony vlhcr:Qf, Ih:~; U,1tO s€l my hand
197300 III and the SEal 01 said C . t C ,.
OJr a/ Jr Isla, Pa.
This/fYf. . .riay 014.4. ....., 19Y.2.
......~,lIif ~f.!)t~rff;-
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CERTIFICATION OF SERVICE
I hereby certifY that I have served a copy of the Court entered Rule to File Complaint upon
all listed parties or their attorneys in the following manner(s) and in accordance with all pertinent Rules
of Civil Procedure:
I. By certified, return receipt requested, United States Mail, postage prepaid:
Michael C. Fox, Esquire
P.O. Box 3165
Harrisburg P A 17105
Dated: Julv 23. 1997
e, Esquire
efendant
di Importing
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Attorney ID No. 69952 ;~;
40 I Penn Street, Suite 100:;;t'
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Attorney for Defendant
Sahadi Importing, Inc,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Michael C. Fox,
DEFENDANTS.
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DOCKET NO, 97-2352
PLAINTIFF,
CIVIL DIVISION
VS,
PRAECIPE FOR
WRIT TO JOIN
ADDITIONAL DEFENDANT
S. Clyde Weaver, Inc. and
Sahadi Importing Inc.,
PRAECIPE
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Issue Writ to Join the following as additional defendant(s) in the above-captioned case:
Mvkonos Foods, 122 N. South Road. Hicksville. PA 11802
Counsel for the Plaintiff is: Michael C. Fox. Esnuire
Counsel for the Additional Defendant(s) (if known and verified) is/are:
Unknown
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TO THE PROTHONOTARY/CLERK OF SAID COURT:
Date:
8'1(~07
I
e Es uire
ant Sahadi 1m ortin
4 enn Street Suite 100
Reading, PA 19601
Telephone No.: (610) 320-4780
Supreme Court ID No.: 69952
Inc.
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"Substantial business within the Commonwealth of Pennsylvania" is denied to the extent that said
allegations is a factual averment.
4, Denied. To the extent the allegations of the corresponding paragraph constitute
factual averments, the same are deemed to be denied due to the fact that after a reasonable
investigation, Answering Defendant is without sul1icient information or knowledge to form a
belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of
trial.
5. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute f.1ctual averments, the same are denied.
6. Denied. To the extent the allegations of the corresponding paragraph constitute
factual averments, the same are deemed to be denied due to the fact that after a reasonable
investigation, Answering Defendant is without sul1icient information or knowledge to form a
belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of
trial.
7. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
8. Denied. To the extent the allegations of the corresponding paragraph constitute
factual averments, the same are denied.
9. Denied. To the extent the allegations of the corresponding paragraph constitute
factual averments, the same are denied.
10. Denied. To the extent the allegations of the corresponding paragraph constitute
factual averments, the same are deemed to be denied due to the f.1ctthat after a reasonable
investigation, Answering Defendant is without sul1icient information or knowledge to form a
belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of
trial.
11. Denied. To the extent the allegations of the corresponding paragraph constitute
factual averments, the same are deemed to be denied due to the fact that after a reasonable
investigation, Answering Defendant is without sul1icient information or knowledge to form a
belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of
trial.
] 2. Denied. To the extent the allegations of the corresponding paragraph constitute
factual averments, the same are denied.
13. Denied. To the extent the allegations of the corresponding paragraph constitute
factual averments, the same are denied.
14. Denied. To the extent the allegations of the corresponding paragraph constitute
factual averments, the same are denied.
15. Denied. To the extent the allegations of the corresponding paragraph constitute
factual averments, the same are deemed to be denied due to the fact that after a reasonable
investigation, Answering Defendant is without sufficient information or knowledge to form a
belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of
trial.
16. Denied. To the extent the allegations of the corresponding paragraph constitute
factual averments, the same are denied.
17. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
18. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
COUNT 1 - NEGLIGENCE
19. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
20. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
21. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
WHEREFORE, Answering Defendant demands judgment be entered in their favor and
against Plaintiff, and thus prays that Plaintiffs Complaint be dismissed with prejudice.
COli NT II - STRICT L1ADlLlTY
22. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
23. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied. Denied. To the
extent the allegations of the corresponding paragraph constitute legal conclusions, the same are
deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of
Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual
averments, the same are denied.
24. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
25. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
26. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
27. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
WHEREFORE, Answering Defendant demands judgment be entered in their favor and
against Plaintiff, and thus prays that Plaintiffs Complaint be dismissed with prejudice.
COUNT 11I- BREACH OF WARRANTY
28. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
29. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
npplicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
30, Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
31. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied,
32. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are denied.
33. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments. the same are denied.
WHEREFORE, Answering Defendant demands judgment be entered in their favor and
against Plaintiff, and thus prays that Plaintifi's Complaint be dismissed with prejudice.
NEW MAlTER
34. Answering Defendant hereby incorporates by reference prior paragraphs I through
33 above as though more fully set forth hereinafter.
35. The accident in question was caused by Plaintifi's own negligence and carelessness.
Plaintiffs cause of action is therefore barred or limited by the terms and provisions of the
Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. Sec. 7102.
36. Plaintiffs Complaint fails to state a claim upon which relief can be granted.
and control of the Answering Defendant. It is further averred that any such abuse, misuse or
abnormal use of this product was unforeseeable by the Answering Defendant.
49. The accident described in Plaintilr s Complaint may have been caused by a
substantial change in the product in question after it left the Defendant's possession and control.
It is further averred that any such change was unforeseeable by the Answering Defendant.
WHEREFORE, Answering Defendant demands judgment be entered in their favor and
against Plaintiff, and thus prays that Plaintiffs Complaint be dismissed with prejudice.
LAW OFFICES OF RALPH F. TOUCH
By:
VERIFICATION
The undersigned, being duly sworn according to law, deposes and says that he is counsel for
the party or parties indicated on the preceding page as being represented by said counsel, that he
has examined the pleadings and the entire investigative file made on behalf of said party or parties,
that he is taking this verilication to assure compliance with the pertinent rules pertaining to timely
filing of pleadings and other documents described by said rules; and that the facts set forth in the
foregoing document are true and correct to the best of his knowledge, information and belief.
The undersigned understands that the statements therein are made subject to the penalties of 18
PA C,S.A. SECTION 4904 relating to unsworn falsilication to authorities.
The Verilication of the attorney is being attached hereto because the Verilication of the
Defendant(s) cannot be obtained in the time allowed for filing of the subject pleading with the
Court. The executed Verification of the Defendant(s) will be filed as soon as it is obtained.
Date: B -11-07
ii
CERTIFICATION OF SERVICE
I hereby t:ertify that I have served a copy of the Defendant, Sahadi Importing, Inc. 's Answer to
Plaintiff's Complaint upon all parties, their attorneys or representatives, and all other relevant
organizations, in the manner(s) set forth below:
I. By first-class mail. 1J0stage IJrelJaid:
Michael C. Fox, Esquire
P.O. Box 3165
Harrisburg, P A 171 05
Michael 1. Hohenadel, Esquire
109 South Market Street
Elizabethtown, PA 17022
Dated: August II. J 997
19730011 J/Lee
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IN TilE COURT OF COMMON I'LEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Michael C. Fox,
Plaintiff
CIVIL ACTION
vs.
97.2352
S. Clyde Weaver, Ine. and
Sahadl Importing, Inc.,
Defendants
Plaintirrs Reply to Defendant's. Sahadi Importinl!. Ine.. New Matter
37. Denied. PlaintilTspecilically denies that his Complaint is barred by the applicable
Statute of Limitations.
PlaintilT, Michael C. Fox. by and through his allomey. replies to the New Maller of
Sahadi Importing. Inc. and in support thereof states as follows:
34. PlaintilT incorporates by reference as if fully set forth at length herein all
allegations contained in the Complaint.
35. Denied. Plaintiffspecilically denies that the accident in question was caused in
any mailer whatsoever by his own negligence and/or carelessness. Plaintiff further denies that
the cause of action is either barred and/or limited by the terms and provisions of Pennsylvania's
Comparative Negligence Act. Finally. PlaintilT denies the allegations contained in this paragraph
of Defendant's New Maller to the extent said allegations or conelusions of law to whieh no
response is required.
36. Denied. PlaintilTspecilically denies that his complaint fails to state a elaim upon
which relief can be granted. Furthermore, the allegations contained in this paragraph of
Defendants New Maller are conclusions of law to which no response is required but which
nevertheless are deemed denied.
38. Denied. PlaintilTspecilically denies that answering Defendant was not negligent.
To the contrary, see the allegations contained in Plaintiffs Complaint.
39. Denied. PlaintilT spccilically denies that answering Defendant's negligence was
not a substantial cause and/or factor of the subject accident and/or did not result in the injuries
and/or losses alleged by Plaintiff. To the contrary. answering Defendant's negligence was a
substantial factor and cause of the subject uccident and did result in the injuries and losses
alleged.
40. Denied. Pluintiff specifically denies that the accident in question was causcd in
any muller whatsoever by his own negligence and/or carelessness. Plaintiff furthcr denies that
the cause of action is either barred und/or limited by the terms and provisions of Pennsylvania's
Compurative Negligence Act. Finully, I'luintifT denies the allegations contained in this paragraph
of Defendant's New Maller to the extent suid allegations or conclusions oflaw to which no
response is required.
41. Denied. Pluintiff specifically denies that any negligent acts and/or omissions of
other individuals and/or entities, ifuny, constitute an intervening and/or superseding cause of the
damages and/or injuries alleged to have been sustained by PluintifT. Furthennore, the allegations
contained in this paragraph of answering Defendant's New Maller are conclusions oflaw to
which no response is required.
42. Denied. Plaintiff specifically denies that answering Defendant's negligence was
not a substantial cause and/or factor of the subject accident and/or did not result in the injuries
and/or losses alleged by Plaintiff: To the contrary, answering Defendant's negligence was a
substantial factor and cause of the subject accident and did result in the injuries and losses
alleged.
43. Denied. Plaintiff specifically denies that he has failed, in any manner whatsoever.
to properly mitigate his damages. FurthemlOre, the allegations contained in this paragraph of
answering Defendant's New Matter ure conclusions of law to which no response is required but
which nevertheless arc deemed denied.
44. Denied. PlaintifT specifically denies that any negligent acts and/or admissions of
other individuals and/or entities, ifany, constitute an intervening and/or superseding causes of
the damages and/or injuries alleged to have been sustained. Furthennore, the allegations
contained in this paragraph of answering Defendant's New Matter are conclusions oflaw to
which no response is required.
45. Denied. Plaintiff specifically denies that he voluntarily and/or knowingly
assumed the risk of any injury whatsoever. Furthennore, the allegations contained in this
paragraph of answering Defendant's New Matter are conclusions of law to which no response is
required but whieh never less arc deemed denied.
46. Denied. Plaintiff specifically denies that answering Defendant acted reasonably
and/or prudently and/or properly and/or conscientiously and/or with the fullest due care. To the
contrary, as alleged in Plaintiff's Complaint, answering Defendant acted negligently and/or
recklessly and/or without proper due care. Furthennore, the allegations contained in this
paragraph of answering Defendant's New Matter arc conclusions oflaw to which no response is
required but which never less are deemed denied.
47. Denied. I'laintiffspecifieally denies that his injuries were pre-existing.
Furthermore.l'laintifT denies that his injuries, as alleged in his Complaint. were nol caused by
the conduct of Defendants. Farthermore, the allegations contained in this paragraph of
answering Defendant's New Maller are conclusions of law to which no response is required but
which nevertheless arc deemed denied.
48. Denied. PlaintitTspeeifically denies that the accident described in his Complaint
was caused in any manner whatsoever by abuse and/or misuse and/or non-intended abnormal use
of the product in question at any time whatsoever. Furthermore. the allegations contained in this
paragraph of answering Defendant's New Maller are conclusions oflaw to which no response is
required but which nevertheless are deemed denied.
49. Denied. PlaintitT specifically denies that the incident described in his Complaint
was caused in any manner whatsoever by any type of substantial change in product after it left
Defendant's possession and/or control. I'laintifT also specifically denies that in the event the
product did undergo a substantial change. which allegation is specifically denied, any such
change was unforeseeable by answering Defendant. Finally. the allegations contained in this
paragraph of answering Defendant's New Maller. are conclusions of law to which no response is
required but which nevertheless arc deemed denied.
WHEREFORE. PlaintifT. Michael C. Fox. respectfully requests this Honorable Court to
enter all rcliefrequested in PlaintifT's Complaint as well as the striking of Answering
Defendant's New Maller.
C,^""
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MICHAEL C. FOX,
Pin in tiff
CUMBERLAND COUNTY COURT OF
COMMON I'LEAS
vs.
Dockct No. 97-2352
S. CL YDE WEAVER, INC. nnd
SAHADlIMPORTING, INC.
Jury Trinl Dcmnndcd
CERTIFICATE OF SERVICE
PlnintiWs Rcply to Dcfcndnnt's, Snhadi Importing, Inc. Ncw Mattcr
I ccrtify that I have servcd a true and correct copy of PlaintiWs Complaint by First
Class Mail, Postage Prepaid to the following:
Jeffrey S. Lee, Esquire
Law Offices of Ralph F. Touch
401 Penn Street
Suilel00
Reading, PA 19601
Michael J. Hohenadel, Esquire
Nikolaus & Hohenadel
109 South Market Street
Elizabethtown, PA 17022
Date of Service:
August IS, 1997
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COUNT II
22 - 27. These paragraphs are denied generally pursuant to
Pa. R.C.P. 1029 (e).
WHEREFORE, Defendant S. Clyde Weaver, Inc. demands judgment in
its favor.
COUNT III
28 - 33. These paragraphs are denied generally pursuant to
Pa. R.C.P. 1029 (e).
WHEREFORE, Defendant S. Clyde Weaver, Inc. demands judgment
in its favor.
CROSS CLAIM PURSUANT TO Pa. R.C.P. 2252 Cd)
34. If the Plaintiff was harmed as alleged by the negligence,
strict liability, or breach of warranty of any of the Defendants,
which Defendant Weaver denies, then Defendant Weaver believes, and
therefore avers, that such alleged injury was the result of
negligence, strict liability, or breach of warranty on the part of
Defendant, Sahadi Importing, Inc. and that such Defendant must be
found to be solely liable to the Plaintiff for his alleged
injuries, or if any liability is found on the part of Defendant
Weaver, that Defendant Sahadi Importing, Inc. be found liable over
to Weaver, or jointly and severally liable with Weaver.
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SHERIFF'S RETURN - U.S. CERTIFIED MAIL
CASE NOI 1997-02352 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
FOX MICHAEL C
VS.
S CLYDE WEAVER INC ET AL
R. Thomas Kline . Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania. who being duly sworn according to law.
served the within named ADD'TL DEFEND. MYKONOS FOODS
by United States Certified Mail postage prepaid, on the 13th
AUQust 1997 . at 1500:00 HOURS, at 122 N. SEUTH ROAD
HICKSVILLE. NY 11802
a true and attested copy of the attached WRIT OF SUMMONS
The returned receipt card was signed by MARIA CLAUSEN
on 8/18/1997.
day of
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
CERTIFIED MAIL RI
18.00
.00
2.00
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2.52
$22.~~
So answer.s:
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R/ Ihomas Kl~ne, Sher~11
RALPH TOUCH
08/20/1997
Sworn and ~ubscribech to before me
this Jlo ~ day of (J" 1"~
19 q7 A.D. 0
(1 ",'- (I h". ft..y ':i!f.17'
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LA W OFFICES OF RALPH F. TOUCH
BY: Jeffrey S. Lee, Esquire
40 I Penn Street, Suite 100
Reading, PA 19601
610-320-4780
Ally. 1D # 69952
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Miehael C. Fox,
Plainti rr.
: CIVIL ACTION
vs.
: 97-2352
S. Clyde Weaver, Ine. and
Sahadi Importing Inc.,
Defendants.
ANSWER OF DEFENDANT. SAHADlIMPORTING INC.. TO THE ANSWER AND
RULE 2252 (d) NEW MATTER OF DEFENDANT. S. CLYDE WEA VER.INC.
AND NOW, comes the Defendant, Sahadi Importing, Inc. and answers the Answer and
Rule 2252(d) New Maller of Defendant, S. Clyde Weaver, Inc. as follows:
1. Denied. To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure.
WHEREFORE, Answering Defendant demands judgment be entered in their favor and
against Plaintiff, and thus prays that Plaintiffs Complaint be dismissed with prejudice.
LA W OFFI
F RALPH F. TOUCH
By:
:Lee, Esquire
A 0 ey for Defendant,
S ha i Importing, Inc.
40 enn Street, Suite 100
Reading, PA 19601
610-320-4780
Ally. ID # 69952
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CERTlF[CAT[ON OF SERVICE
[ hereby eertify that [ have served a eopy of the foregoing document(s) upon all parties, their
attorneys or representatives, and all other rclevant organizations, in the manner(s) set forth below:
1. By first-class. United States mail. noslage nrenaid:
Michael C. Fox, Esquire
P.O. Box 3[65
Harrisburg, PA [7105
Michael J. Hohenadel, Esquire
[09 South Market Street
Elizabcthtown, P A 17022
Dated: Sentember 17. 1997
Jeffre . Lee, Esquire
Atto e for Defendant
Sa di mporting, Ine.
197300111
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4. Denied generally In accordance with P.R.C.P. 1029(e).
5, The averments in this paragraph regarding the liability and negligence of the
Additional Defendant are denied as legal conclusions which require no answer, The remains of the
averments In this paragraph are denied generally.
6. Admitted.
7. Admitted.
8. Admitted.
9. Any of the averments In this paragraph regarding the liability and negligence of the
Additional Defendant and those averments In this paragraph regarding the Additional Defendant's
liability, Indemnity, contribution and/or Indemnification owed to other parties are legal conclusions
which require no answer. 8y way of further explanation, the remains of the averments In this
paragraph are denied generally.
COUNT I
10. Paragraphs 1 through 9 of Defendant's Answer are incorporated herein and made a
part hereof as If set forth In full.
11-13. legal conclusions which require no Answer. Where an Answer Is deemed to be
required, after reasonable investigation, Answering Defendant lacks information or knowledge
sufficient to form a belief as to the truth of the averments contained In this paragraph and same are
therefore denied, strict proof being demanded at trial, If relevant.
COUNT II
14. Paragraphs 1 through 13 of Defendant's Answer are incorporated herein and made
a part hereof as if set forth in full.
15. Legal conclusions which require no Answer. Where an Answer Is deemed to be
required, after reasonable Investigation, Answering Defendant lacks Information or knowledge
sufficient to form a belief as to the truth of the averments contained In this paragraph and same are
therefore denied, strict proof being demanded at trial, if relevant.
NEW MATTER
16. The olives averred to In the Plaintiff's Complaint may not have been supplied by
Mykonos Foods.
17. The olives averred to in the Plaintiff's Complaint may not have been sold by Mykonos
Foods.
18. The Plaintiff's Complaint fails to stale a claim against Mykonos Foods.
19. Any claims that Plaintiff may have against Mykonos is barred by the Statute of
Limitation.
20. The Plaintiff may have assumed the risk of his activities.
21. Plaintiff's claims against the Defendants may be barred or limited by his contributory
negligence.
22. The negligent acts and/or admissions of other individuals and/or entities may have
constituted intervening, superseding causes of the injuries and/or damages alleged to have been
sustained by the Plaintiff.
23. Any other allegations against Answering Additional Defendant may not have been
proximately caused by Mykonos Foods.
24. Any injury and/or damages alleged to have been sustained by the Plaintiff's or the
other parties to this accident were not proximately caused by Mykonos Foods.
25. If the olives averred to In the Plaintiff's Complaint were supplied by Mykonos Foods,
any damages and/or Injuries which the Plalntl(( sustained or the other parties to this action have
averred, were caused by the Improper, abnormal, unforeseeable, and unintended use of the product
by the Plaintiff and/or other persons for whom Mykonos Foods were not responsible for after the
olive left the possession and control of us.
26. If the olives averred to In the Plalntill's Complaint were supplied by Mykonos Foods,
they may have been substantially altered after the left the possession and control of Answering
Additional Defendant.
27. If the olives averred to in the Plaintill's Complaint were supplied by Mykonos Foods
they may have been subject to misuse or not properly maintained after they left the possession and
control of Mykonos Foods.
28. Any acts or admissions on the part of Mykonos Foods alleged to constitute
negligence, were not a substantial causative factor of the Plaintlll's injuries and/or losses.
29. At all times relevant to the incident referred to in the Plaintill's Complaint Mykonos
Foods complied with all applicable laws, regulations and standards concerning Mykonos Foods
conduct In this maller.
30. If Plaintill is able to prove the alleged allegations within his Complaint then
Additional Defendant Mykonos Foods in accordance with the Pennsylvania Rules of Civil Procedure
of 2252(d) hereby join, as additional defendant, Defendants S. Clyde Weaver, Inc. and Sahadi
Importing, Inc., for the purpose of contribution and/or indemnification, hereby averments said
defendants are alone liable to Plaintiff Michael C. Fox, is liable over to join Additional Defendant
or is jointly or severally liable to/with the joined Additional Defendant.
WHEREFORE, Additional Defendant Mykon05 Foods, hereby prays that the Complaint be
dismissed, at the costs of Plaintiffs, or in the alternative, for the relief alieged in Paragraph 30 above.
Respectfuliy submitted,
THOMAS, THOMAS & HAFER
DATE: 10) \0\ ~1
f/MJf!il/#~
JOHN FLOUNLACKER, ESQUIRE
ATTORNEY 1.0, NO. 73112
P.O. BOX 999
305 NORTH FRONT STREET
HARRISBURG, PA 17108
(71 n237-7134
THOMAS, THOMAS & HAFER
CERTIFICATE OF SERVICE
I. Jeannie L. Kawalec, an employee for the law firm Thomas, Thomas & Hafer, hereby
state that a true and correct copy of Defendant's Answer with New Malter was served upon all
counsel of record by first class United States mail, postage prepaid, addressed as follows, on the date
set forth below:
Bv First Class U.S. Mall:
Jeffrey S. Lee, Esquire
401 Penn Street, Suite 100
Reading, PA 19601
Counsel for Defendant, Sahadi Importing, Inc.
Michael J. Hohenadel, Esquire
Nikolaus & Hohenadel
109 S. Market Street
Ellzabethtown, PA 17022
Counsel for S. Clyde Weaver, Inc.
Michael C. Fox
P.O. Box 3165
Harrisburg, PA 17105
Plaintiff
Dated: /1/0(9 7
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LAW OFFICES OF RALPH F. TOUCH
BY: Jeffrey S. Lee, Esquire
40 I Penn Street, Suite 100
Reading, PA 19601
610-320-4780
Atty. ID # 69952
Attorney for Defendant,
Sahadi Importing Inc.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Michael C. Fox,
Plaintiff,
: CIVIL ACTION
vs.
: 97-2352
S. Clyde Weaver, Inc. and
Sahadi Importing Inc.,
Defendants,
Mykonos Foods,
Additional Defendant.
ANSWER OF SAHADI IMPORTING. INC. TO THE ADDITIONAL DEFENDANT.
MYKONOS FOOD'S. NEW MAITER
AND NOW, comes the Defendant, Sahadi Importing, Inc. and answer the New Matter of
Additional Defendant, Mykonos Foods as follows:
30. Denied, To the extent the allegations of the corresponding paragraph constitute
legal conclusions, the same are deemed to be denied without further response pursuant to the
applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the
corresponding paragraph constitute factual averments, the same are deemed to be denied due to
the fact that after a reasonable investigation, Answering Defendant is without sufficient
information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of
same is hereby demanded at the time of trial.
VERIFICATION
The undersigned, being duly sworn according to law, deposes and says that he is counsel for
the party or parties indicated on the preceding page as being represented by said counsel, that he
has examined the pleadings and the entire investigative file made on behalf of said party or parties,
that he is taking this verification to assure compliance with the pertinent rules pertaining to timely
filing of pleadings and other documents described by said rules; and that the facts set forth in the
foregoing document are true and correct to the best of his knowledge, information and belief.
The undersigned understands that the statements therein are made subject to the penalties of 18
PA C.SA SECTION 4904 relating to unsworn falsification to authorities.
The Verification of the attorney is being attached hereto because the Verification of the
Defendant(s) cannot be obtained in the time allowed for filing of the subject pleading with the
Court. The executed Verification of the Defendant(s) will be filed as n as it is obtained.
Date: IO-a.1-'l7
ee, Esquire
CERTIFICATION OF SERVICE
I hereby certify that I have served a copy of the Answer of Defendant, Sahadi Importing, Inc, to the
Additional Defendant, Mykonos Food's New Matter upon all parties, their attorneys or representatives,
and all other relevant organizations, in the manner(s) set forth below:
I. By first-class mail. postage nreoaid:
James 1. Comitale, Esquire
100 Pine Street, 4th Floor
P,O. Box 803
Hamburg, PA 17108-0803
Michael J. Hohendale, Esquire
109 South Market Street
Elizabethtown, PA 17022
John Flounlacker, Esquire
Thomas, Thomas & Hafer
P.O. Box 999
305 North Front Street
Harrisburg, PA 17108
Dated: October 23. 1997
197300111/Lee
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VERIFICATION
The undersigned, being duly sworn according to law, deposes and says that he is counsel
for the party or parties indicated on the preceding page as being represented by said counsel, that
he has examined the pleadings and the entire investigative file made on behalf of said party or
parties, that she is taking this verification to assure compliance with the pertinent rules pertaining
to timely filing of pleadings and other documents described by said rules; and that the facts set
forth in the foregoing document are true and correct to the best of her knowledge, information
and belief. The undersigned understands that the statements therein are made subject to the
penalties of 18 PA C.S. SECTION 4904 relating to u worn falsification to authorities.
rey S. Lee, Esquire
ttorney for Defendant,
ahadi Importing, Inc.
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EXHIBIT A
LA W OFFICES OF RALPH F. TOUCH
..Ol PENN STRfET SUITIlIOO
READIlIO. PE/lNSYLVA.~lA 19601
(610) )10"710
PA.'C (6101 )10..,6,
IW.I'II P. muclI .
!o4ICIIAf1. W. CASEY
fRAlrlXUN w. NOll.. III
IEI'fRllY s. LEE .
LORI I. Fl!JDT .
DANIEL I. PORlIIWI .
-ALSO M...... o. Saw 1wIY N4D Nrw You B.wI
. AUO ~!NID O. NJW 1UsIY BAa
December 3, 1997
James J. Comitale, Esquire
Marshall, Dennehey, Warner Coleman & Goggin
100 Pine Street, 4th Floor, P. O. Box 803
Harrisburg, PA 17108-0803
Re: Fox v. S.Clyde Weaver & Sahadi Importing
Claim No.: 50749666
File No.: 197300111
Dear Mr. Comitale:
On November 3, 1997, this office forwarded to you the original and one copy of Interrogatories and a
Request for Production of Documents for answering by your client. As of today, we have not received
your client's responses to our discovery request.
Please file a written response to the same within ten (10) days of the date of this letter.
Thank you for your kind attention.
ey S. Lee, Esquire
Direct Dial Number is 610 320.4248
JSUjmk
Enclosures
cc: Michael C. FolC, Esquire
Michael J. Hohenadel, Esquire
Jean Reidenhour, 50749666
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CERTIFICATION OF SERVICE
Dated: Februarv 4. 1998
I hereby certify that I have served a copy ofthepefendants' Motion To Compel
Answers To Interrogatories And Response To Request For Production Of Documents By
Plaintiff and Memorandum Of Law In Support Of Motion To Compel Answers To Interrogatories
And Response To Request For Production Of Documents Of Plaintiff upon all other parties or
their attorneys by Regular Mail on February 4, 1998.
1. By first-class maiL postage prepaid:
James J. Comitale, Esquire
100 Pine Street, 4th Floor
P.O. Box 803
Harrisburg, P A 17108-0803
Michael C. Fox, Esquire
P.O. Box 3165
Harrisburg, PA 17105
Michael J. Hohendale, Esquire
109 South Market Street
Elizabethtown, P A 17022
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
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CIVIL ACTION - LAW
MICHAEL C. FOX
Plaintiffs,
No.: 97-2352
vs.
S. CLYDE WEAVER, INC and
Sahadi Importing, Inc.
Defendants
PRAECIPE
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter the appearance of David K. Grubb of Nikolaus & Hohenadel, in lieu
of that of Michael J. Hohenadel of Nikolaus & Hohenadel, for Defendant S, Clyde
Weaver at the above term and number.
Respectfully submiued,
NIKOLAUS & HOHENADEL
By:
Date:
0)J-&!17J
avid K. Grubb, Esquire
Attorney ID # 63905
Attorney for Plaintiff
212 North Queen Street
Lancaster, P A 17603
(717) 299-3726
Michael C. Fox, Esquire
P.O. Box 3165
Harrisburg. PA 17105
NIKOLAUS & HOHENADEL
BY: ~..oJ I( h1 ,l hh/ti.t./(
David K. Grubb, Esquire
Attorney for Defendant
212 North Queen Street
Lancaster, PA 17603
(717) 299-3726
Attorney I,D. # 63905
Date: ~ . 2. &; . 91
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IN THE COURT OF COMMON PLEAS
OF Cumberland COUNTY PENNSYL Y ANIA
Michael C. Fox, ) CIVIL DIVISION
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PLAINTIFF, ) NO. 97-2352
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YS. )
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S, Clyde Weaver, Inc. and )
Sahadi Importing Inc., )
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DEFENDANTS )
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VS. )
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Mykonos Foods, )
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ADDITIONAL DEFENDANT )
ORDER TO SETTLE. DISCONTINUE AND END
TO THE PROTHONOTARY:
Kindly mark the above captioned matter Settled, Discontinued and Ended, with prejudice.
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