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HomeMy WebLinkAbout97-03694 ....." '. "'" It " ~ ~ ~~ ,,~ ,'X 0 ~ .., ~ ~ ~ ~~ "" ~ () ~~ ~ '"1 i , \l 1:: \l ~ ".. ~ ~ ~ l'r) , t--. l\)-- ..,. ~ McNEES, WALL"CE III NURICK 100 ~IN[ snU[T ,. " .01 H" H.......ISBU.u) ~A 17108 LELAND I. GILLETTE and JUDITH C. GILLETTE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 97-3694 VAL-PAK DIRECT MAIL PROMOTIONS OF MARYLAND, INC. and R. GORDON BRUNNER, CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT 1. Plaintiffs Leland I. Gillette and Judith C. Gillette ("Plaintiffs") commenced this action against Defendant Val-Pak Direct Mail Promotions of Maryland, Inc. ("Val-Pak"), and R. Gordon Brunner ("Brunner"), by Writ of Summons on or about July 8, 1997. 2. On or about August 15, 1997, a Complaint was filed in this Court. 3. Although a copy of both the Writ of Summons and the Complaint have been forwarded by first-class mail to counsel for Defendants, neither pleading has ever been served pursuant to the Rules of Civil Procedure. and counsel for Defendants do not have authority, and have not accepted service of the Writ or Complaint. 4. The Complaint alleges that Defendants breached a franchise agreement with Plaintiffs; intentionally interfered with the contractual relationship between Plaintiffs and Val-pak; and seeks recovery for unjust enrichment. 5. As set forth below, even if the facts alleged in the Complaint are assumed to be true, no valid causes of action are stated, and the Complaint therefore should be dismissed. COUNT I - DEMURRER 6. Paragraphs 1 through 5 above are incorporated herein by reference as if set forth in full. 7. The first count of the Complaint alleges a breach of contract between Plaintiffs and Defendants. 8, The Complaint alleges that Plaintiffs' marketing of a "town planner calendar" was viewed by Defendants as a violation of the franchise agreement between Plaintiffs and Defendants. (Complaint, ~~13-17). 9. The Complaint alleges that Defendants were aware of, and tacitly approved, use of the "town planner calendar." (Complaint, ~16), 10. The Complaint alleges that Defendants advised Plaintiffs that Defendants did not consider the use of the "town planner calendar" to be a violation of the agreement, and specifically that use of the calendar did not breach the non-competition clause of the franchise agreement. (Complaint, ~ 18, Exhibit lie") . 11. The Complaint then avers that Plaintiffs have suffered damages as a result of Defendants' breach of the agreement, in that they have lost the franchise, the initial purchase value of -2- the franchise, and the current value of the franchise estimated to be $175,000. (Complaint, "19-22). 12. Plaintiffs fail to allege, however, that Defendants terminated the relationship, or exercised the right to terminate the relationship, under the agreement between Plaintiffs and Val- pak of Maryland, Inc. 13. At most, the allegations of the Complaint, and the exhibits attached thereto, demonstrate that Plaintiffs and Defendants were involved in a dispute, and that Plaintiffs and Defendants had different interpretations of the meaning of the non-competition clause contained in the franchise agreement as it applied to Plaintiffs' use of the "town planner calendar." 14. Despite the dispute, the Complaint does not allege that Defendants terminated the franchise agreement with Plaintiffs as a result of the dispute over the non-competition clause, and, in fact, Plaintiffs' franchise was not terminated as a result of the dispute concerning the non-competition clause. 15. Under the facts alleged in the Complaint, Plaintiffs have not alleged a breach of an agreement, and therefore the cause of action for breach of contract cannot be maintained as a matter of law. WHEREFORE, Defendants demand that Plaintiffs' Complaint be dismissed with prejudice, as it fails to state a claim for breach of contract upon which relief can be granted. -3- COUNT II - DEMURRER 16. The Complaint alleges that Plaintiffs and Val-Pak of Maryland, Inc. entered into a franchise agreement. (Complaint, '7) . 17. The Complaint alleges that Brunner is the President of Val-pak. (Complaint, '4). lB. The Complaint alleges that Val-pak breached the agree- ment by refusing to abide by the terms of the agreement, and that Brunner, the President of Val-pak, caused Val-Pak to engage in the alleged breach of the agreement, (Complaint, ~~19-20), 19. Count II of the Complaint alleges that Brunner intentionally interfered with the agreement between Plaintiffs and Val-pak. 20. An action for intentional interference with a contract may only be asserted against third parties, who are not parties to the agreement in question. Abel v, American Art Analoq. Inc" 838 F.2d 691 (3rd Cir. 19B8). 21. Defendant Brunner is the President of one of the parties to the contract in quest~on in this matter, and has no involve- ment independent of his status as President of Val-Pak, 22. An officer, acting within the course and scope of his duties, has no liability for alleged interference with a contract between the corporation and the plaintiff. Cosmas v, Bloomingdales Bros, , Inc., 442 Pa. Super. 476, 660 A.2d B3 (1995), Nix v. Temple University, 40B Pa. Super 369, 596 A.2d -4- 1132 (1991), Michelson v. Exxon Research and Enqineerinq Co" 808 F.2d 1005 (1987). 23. No cause of action for intentional interference with contract is stated under the facts set forth in the Complaint. 24. As a matter of law, Plaintiffs have failed to set forth the cause of action for intentional interference with contract, WHEREFORE, Defendants demand that the count alleging intentional interference with contract be dismissed, as the Complaint fails to set forth such a cause of action as a matter of law. COUNT III - DEMURRER 25. Paragraphs 1 through 24 above are incorporated herein by reference. 26. Count III of the Complaint contains a claim for unjust enrichment. 27. Where a contract governs the relationship between plaintiff and defendant, no claim for unjust enrichment lies. Durham Terrace. Inc. v. Hellertown Borouoh Auth., 394 Pa. 623, 148 A.2d 899 (1959), Birchwood Lakes Community Assoc., Inc. v, Comis, 296 Pa. Super. 77, 442 A.2d 304 (1982). 28. Since Plaintiffs assert the existence of a contract between them and Defendants, no claim for unjust enrichment may be stated. .I.d, -5- 34, Under the Pennsylvania Rules of Civil Procedure, proper service has not been effectuated in this case and the Complaint should be stricken for that reason. WHEREFORE, Defendants demand that Plaintiffs' Complaint be stricken for improper service. McNEES, WALLACE & NURICK By Mic ael R. Kelley, LD. No. 58854 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants Val-pak Direct Mail Promotions of Maryland, Inc. and R. Gordon Brunner Dated:~", 1,91 -7- LELAND I. GILLETTE, and JUDITH C. GILLETTE v. COURT OF COMMON PLEAS CUMBERLAND COUNTY PlaintiffS, CIVIL ACTION - LAW NO. ':17- jftJr/r (?~t-, VAL-PAK DIRECT MAIL PROMOTIONS OF MARYLAND, INC., AND R. GORDON BRUNNER, JURY TRIAL DEMANDED Defendant PRAECIPE FOR A WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a Writ of Summons on the above-referenced Defendants, VAL-PAl< Direct Mail Promotions 0 Maryland, Inc, and Gordon Brunner. Said Defendnats have a principal place of business at 6505 Democracy Boulevard, Bethseda, Maryland. Date: ,~. ..A:.( / / / ~/ . ATTORNEY FOR PLAINTIFFS I ("f((d(,' ,l'J 1 IV //"\\(,, (,)( . , , I,ll, II -; (< II (lH J) ,.j '" r- .... f'.. '"" ~ ., '<J ~ '-J "........ ~ ~ "" ~, "" c: ~ .... - \ \r.. c' ,---, ~ r- ! "" ...... , -, '"-- '\.L "'-.J -...; ''< (\~ <:::;i ..........; '--..- - ~ . . LELAND I. GILLETTE, and JUDITH C. GILLETTE v. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW PlaintiffS, r/'. ;>/ I NO. 1'.J I.r If l/ (1q~\ C VAL-PAl< DIRECT MAIL PROMOTIONS OF MARYLAND, INC., AND R. GORDON BRUNNER, JURY TRIAL DEMANDED Defendant WRIT OF SUMMONS TO: VAL-PAR Direct Mail Promotions 0 Maryland, Inc, and Gordon Brunner, DEFENDANTS: You are hereby notified that Leland I. Gillette and Judith C. Gillette, Plaintiffs, has commenced an action against you. "\ l.J 1'-1 5', yap-u '/ / r;r; -; f' / ,(/lULl I Al" PROTHtJNOTARY '...1 -- '- ) 1,-- d l~ BY: It-\. {L;( / .... ,..... ;- i:: " t-; ,-..: C~ ,;.( fUr) ( j.. " f~(' I): " ~(- . ;-! IT " u) :'-1 J j ~. J I' ~ --1,,, '-" . - .... rr:'i :::> . ~ .' ~.' J 1-' " .';f1. " ,.... -) Cl '" '.J ~~~) . .... .. . .. .. . \ ~ ~ - 1- - ~;d;; :s ~ ~:S;a~~ ~~ "':::!;;=~I~~~ -r....>:tn f:: w.. ~ ~ 0:'. _ l-?;vCl;o: ~.. t:JiJ:o "W __ % o""q... t:.~ % I: '-0 c.. 0 '" ~.-r ~J C( ~.- :.:J '" ~ . LELAND I. GILLETTE, and JUDITH C. GILLETTE : COURT OF COMMON PLEAS CUMBERLAND COUNTY v. . . CIVIL ACTION - LAW Plaintiffs, : NO. 97-3694 VAL-PAX DIRECT MAIL PROMOTIONS OF MARYLAND, INC., AND R. GORDON BRUNNER, JURY TRIAL DEMANDED Defendant COMPLAINT AND NOW, come Plaintiffs by their undersigned counsel and respectfully bring this action at law, setting forth in support thereof as follows: 1. Plaintiffs Leland I. Gillette and Judith C. Gillette are adult individuals residing at 253 West Pomfret street, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Val-pak Direct Mail Promotions of Maryland, Inc., ("Val-Pak of Maryland") is a corporate entity with a principal place of business at 6505 Democracy Boulevard, Bethesda, Maryland, 20817. 3. Defendant R. Gordon Brunner is an adult individual having a principle place of business at 6505 Democracy Boulevard, Bethesda, Maryland, 20817. 4. Defendant Brunner is the President of Defendant Val-pak of Maryland. 5. Defendant Val-pak of Maryland, is a franchisee of Val- Pak, Direct Marketing Systems, Inc. ("Val-Pak, Inc."), of St. Petersburg, Florida. Defendant Val-pak of Maryland has a franchise territory from Val- Pak, Inc., consisting of, among other territories, all or part of the state of Maryland, and portions of central Pennsylvania, including territories in Adams, Cumberland, Franklin, Perry, and York counties. 6. Val-Pak, Inc., is a direct mail advertising marketer. Val-Pak, Inc., prints coupons and other advertising material inserted in envelopes and periodically sent to households within a given territory. The franchisee, or sUb-franchisee, is responsible for developing its own mailing lists, securing its own advertisers and buyers for the coupons and inserts, and paying to Val-Pak, Inc., the cost of printing and distributing the materials. 7. On or about December 22, 1982, Plaintiff and Defendant Val-pak of Maryland entered into a sub-franchise agreement, consummated in the state of Maryland, A copy of that agreement is attached hereto as Exhibit A and is incorporated by reference herein. 8. The agreement was consummated in the state of Maryland. 9. The agreement has been carried out by Plaintiff in the Commonwealth of Pennsylvania and in Cumberland County. 10. Both Defendants regularly engage in business with Plaintiff and with other franchisers in central Pennsylvania. 11. Defendant Val-pak of Maryland receives a substantial 2 portion of its revenues from sub franchises performed in Pennsylvania. 12. On or about May of 1995, Plaintiffs became associated with Town Planner, the publisher of a community events calendar containing advertising from area merchants and vendors, distributed once a year. Plaintiff's Town Planner territory covered Mount Holly Springs, Carlisle, and Boiling Springs, and Mechanicsburg, Pennsylvania. 13. In approximately August of 1995, the matter of Plaintiff's involvement with Town Planner was brought to the attention of Defendants, who, in turn, brought it to the attention of Val-Pak, Inc., in Florida. At that time, Defendants and Val- Pak, Inc., indicated that they did not consider this to be a competitor within the meaning of 117 and 118 of the agreement (Exhibit A). 14. In reliance on same, Plaintiff continued to market the Town Planner calendar in the Mount Holly springs, Carlisle, and Boiling Springs, and Mechanicsburg, Pennsylvania, areas. 15. On or about May 7, 1997, one Michael P. Bentzen, an attorney representing Val-pak of Maryland addressed a letter to Plaintiff and his wife alleging that in their involvement with the Town Planner, they were in violation of the agreement. The letter also stated that Val-pak of Maryland will exercise its right to 3 ~ terminate the agreement unless a satisfactory response was received by the close of business on May 8, 1997. A copy of this letter is attached as Exhibit B and incorporated by reference herein. 16. On May 8, 1997, Plaintiffs telefaxed a letter to Defendants, reminding Defendants that they had been aware of what Plaintiff had been doing for nearly two years. A copy of this letter is attached as Exhibit C and incorporated by reference herein. 17. On May 13, 1997, the said Attorney Bentzen wrote Plaintiff and his wife a letter indicating that their May 8, 1997, letter to Defendants was unsatisfactory, and the terms of [his] previous letter continued to stand. A copy of this letter is attached hereto as Exhibit D and incorporated herein. 18. Plaintiff is not in default of any anticompetition provision in the agreement. The non-competi ti ve nature of the Town Planner has been agreed upon by the parties as established by the continued business relationship over the years while Defendants knew Plaintiff was carrying on the Town Planner business. 19. The action of Val-pak of Maryland in refusing to abide by the terms of the aforesaid December, 1982, agreement constitutes a material breech of the agreement. 20. Defendant Val-pak of Maryland has been induced to take its aforesaid action against Plaintiffs by Defendant Brunner. 4 hetween Pl~intiff ~n~ Defen~Ant ~~I-PAk of Maryland, Inc. WHF.REFORF., PI i'l i nt Iff re,,;pect filii y rp.que";t,, judgment ilqainst Defen~antR for actui'll dAma~e,,; of S??0.)4q.~n, toqether with punitive dam~qB";, inters,,;t, an~ ~ORt of suit. COUNT III LELAND I. GILLETTE, and JUDITH C. GILLETTE '1. PI~intiffR, VAL-PAK DIRECT MAIL : PROMOTIONS OP MARYLAND, IHC., : AND R. GORDON BRUNNER, Dpf(>nr1~nt l'J. parilqr~phR I - i'R "hove ilre incorporated by reference hr>rcdn. VI. AR il rr>Rlllt of thp pffortR of Pli1intiff in marketing Val- f'i1k PromotlonR In thS aRRiqnpd area, Defendants have received the hr>rIPfit of MI inrr"'lRP in th... 'J"lus of the Rub franchise from the ilMount pnid, to wit, S'J,'J~n.nn to fnir value of the sub franchise, to wit, Sl'Ir"nnn.nn, or il n...t 'Jilin of $16r"O<;0.00. 11. It WOllld h" inr>quitill>le to allow Defendants to retain Illr> vnlllr> of tllr> dfo,'I" of plllint.iff in !luilding the sub f ,n,,<'I11 "r>. , between Plaintiff and Defendant Val-Pak of Maryland, Inc. WHEREFORE, Plaintiff respectfully requests judgment against Defendants for actual damages of $220,J49.60, together with punitive damages, interest, and cost of suit. COUNT III LELAND I. GILLETTE, and JUDITH C. GILLETTE . . . . v. . . . . Plaintiffs, . . . . VAL-PAR: DIRECT HAIL PROMOTIONS OF HARYLAND, Aim R. GORDON BRUNNER, . . INC., : . . . . Defendant . . 29. Paragraphs 1 - 28 above are incorporated by reference herein. JO. As a result of the efforts of Plaintiff in marketing Val- pak Promotiuns in the assigned area, Defendants have received the benefit of an increase in the value of the sub franchise from the amount paid, to wit, $9,950.00 to fair value of the sub franchise, to wit, $175,000.00, or a net gain of $165,050,00, J1. It would be inequitable to allow Defendants to retain the value of the efforts of Plaintiff in building the sub franchise. 7 . .. Exhibit B Mr. & Mrs. Lee Gillette May7,1997 Page 2 to injunctive and other equitable relief. Licensee further agrees that he shall pay Licensor's cost of enforcing his rights hereunder, including reasonable attorney's fees. 8. Parties hereto agree that in the event of default hereunder by Licensee, Licensor may immediately, upon written notice mailed to the Licensee at the address set forth hereinabove, terminate this Agreement. Your actions, which have been noted by VaI-Pak associates in adjoining territories, also have included use of the VaI-Pak name and marks outsirle of the territoI)' assigned to you. These matters constitute serious and material breaches of your agreement with VaI-Pak of Maryland. These actions, regardless of whether or not your VaI-Pak subfranchise is ternlinated must cease immediately. Failure on your part to immediately cease and desist from this competitive business will cause Val-Pak of Maryland to institute legal proceedings to compel your compliance with your agreement. In that event, the costs of such proceeding will be borne by you. Please notify Gordon Brunner immediately of your actual cessation of violations of your agreement and arrange with him compensation for your default. If an adequate response is not received by the close of business on May 8, 1997, I am advised that Val-Pak of Maryland will exercise its right to ternUnate your agreement and license to use the Val-Pak name and marks and will institute proceedings against you to preclude your violation the of the agreement for a period of two years. Sincerely, cc: R. Gordon Bnmn~r . " , Exhibit D CERTIFICATION OF SERVICE I hereby certify that I am this day serving a true and correct copy of the attached Complaint on the following individual by First Class U.S. Mail addressed as follows: Michael P. Bentzen DAVIS AND BENTZEN P.L.L.C. suite 1075 888 Seventeenth Street Northwest Washington, D.C. 20006 Date: it .Alii J ;# '-/ f . I '. yl <- .,J . I .,'" KENNETH A: WISE, ESQUIRE 10 NO. 16142 126 LOCUST STREET P. O. BOX 11489 HARRISBURG, PA 17108-1489 (717) 238-3838 /. '/ .' f/" ATTORNEY FOR PLAINTIFFS ..... r-. L ,- \.J '" ~ ~ 1- - W. F-o ",. <0 V'l::::u.: ""'" _ ....... '" '" % g; ~ ;::: .J '" :\i:<! ~ '. ..:~ii;=21~'~ - ;,...,.... >': In t:' -l.I.:~o% _ f-o % ..J Cl % f::'... WO!V 'OJ __ %030... t~ %1:;",0....,. u. :...; o"!':' ~ ~ . - ~ i . " KENNETH A. WISE ATTORNEY AT LAW 126 LOCUST STREET P. 0, BOX 11489 HARRISBURG. PENNSYLV ANIA 17108.1489 . 1=IL€ (717) 238-3838 TELEFAX (717) 238-3838 July II, 1997 VIA CERTIFIED MAIL P 487 142711 R. Gordon Brunner c/o Val-Pak Direct Mail Promotions of Maryland, Inc. 6505 Democracy Blvd. Bethesda, Maryland 208) 7 Re: Leland I. Gillette and Judith C. Gillette v. Val-Pak Direct Mail Promotions, Inc., and R. Gordon Brunner, Defendants. Cumberland County, PA, No. 97-3694 Dear Mr. Brunner: Enclosed please find a certificd copy of the Writ of Summons entered in this case against Val-Pak of Mmyland and you. This pcrtains to the claim of Mr.lMrs. Gillcttc for damagcs and othcr relief resulting from Defendant's violations of the December 22, 1982, Val-Pak agreement. I am taking thc libcl1y of scnding a copy of this undcr cover of a copy of this lettcr to your counsel, Michael P. Bcntzcn. VCIY tlUly YO~lr'S, , f ,,', 0'/' , i, / //' '/.'.' /{ I . , . Kcnncth A. Wisc , ',' 'It> , KAW: sae c: Mr./Mrs. Lcland Gillctte r-. " , ( L " t- '" ~ ;g - 1- :.t.:..... - trJ::: t.: ~ ',c :-""" '" _....J _ ;:::.Ji-'% ;lS;ll . I- I- ~ ~ ~ '. -or:""': rJ1 = ~ "r ~ _ ;.. I- "" ""I ~ .i f:~~o~ ;Sr::- wi:!'>( Cl % ~;::: ZO~C~ -- %r::o;": t.>-; '., t"" - ,., ""r. g".:1 ~ " "- gc: - ;" Cl ~ 02 ~ . .. '" 5 : :I _C6mpIe11 Ken'll 1 anG'Of 2 'Of additional MlVleeI. I also wish to receive the . lCompI..ltlma 3. 4.. and 4b. following services (lor an I 'PrlnI your name and addrnl on the ,......r..,Ollhi.'Ofm 10 th.1 we can return lhis extra fee): ~~~ I -Aneth thI, form 10 the fronl of lhe INilpilce. or on the blck Ilaplce doe. not 1. 0 Addressee's Address ~ W' ! -Write "R_urn Receipt Reque.ted' on lhe IT\I~piece beklw thl .r11dt number, 2. )1'04. Restricted Delivery ti -ThI Return ReceipC wlU show 10 whom the I11IdI wit deliv,red ancItht dati e delly.r~. Consult postmaster lor fee. o 3. Artlcl. Addr.SSe;lJg: -;) 4~: Artlcl.Numb.r \:;:' (,(",,,,,k y' l)t-LlI \1 h(-,_~,'\i. )1c:l;,IT?LJ I..j~ ,10 \ L' ~ Co.' _. \, \, '\) --1.', 4b. S.rvlce Typ. V~\-l "I< -vl\lCI l-lt \'l]\\C\\Ci'~ 0 R.glsl.r.d C: \\ \:1. "'I ~'),' y \ , \, \(. , 0 Expr.ss M.II (L-fjC"51lUIKLI"tI<'11 \~\I<J . 0 R.lumRocoiptlorM.rchandse 1:,,,,\ \ \e~m \ \ \) , -JC~ l7 7. D.~ ~1D;'Z.ry9- 5. Rec.lved By: (Print Name) B. A r.ss.... Addr.ss (Only if requested and f.e is paid) ~ 6, Sign.tur.: (Addressee or AgentjJ ~ X \,c,:; t~ .!! PS Fonn :l~11, Dec.mb.r 1994 11 1 II: E il b( Certlfl II: III o In.ured -!i o coo " 15 - " ~ ... c ~ Domestic Return Receipt P 4.87 1.42 710 \ us Pcst.ll SI,r,'ILt" Receipt for Certified Mail N..1 lilSufJn,;i.' el' iC"JQi> PfU',\d,o{j [Ii) 1'<1 'l~'" tr,1 Inll"n;J!Hlf1.11 f.la,1 (S:!.q~(>i .'~1--~~--~. ,. -~ .) h: ( ; r ,-, \uJ.S'~1.... \ -\:') 1~~~ItLLh. .tiLJ_ \ """"" s _--'~ ~;:-!~- -- -1.JL- ",tl:~:'{~:~'~S-~j__ ') - C> IIrl, '" ['l",,,,'l ..,tH....lf1rtl' 1 '!' ,,'~"'. ~!'"el':"~::.",'_ _ ____l~ L- :i ij"lu~ H".t'f.",..",,~I<1,^""'" o::r ~'l">' ").t~'.',,~. ; l.",t,,,> , o ~ ~01 A.ll ',',j:' .. i ,.." M 1'-""..""1.1,\.,,1 t:..." s II , I ,,',1 LELAND I. G1LLE'ITE and JUDITH C. GILLE'ITE. Plaintiffs IN THE COURT OF COMMON I'LEAS OF CUMIlERLAND COUNTY. PENNSYLVANIA vs. 97-3694 CIVIL V AL-PAK DIRECT MAIL PROMOTIONS OF MARYLAND INC. and R. GORDON BRUNNER, : Dcfcndants CIVIL ACTION - LA W IN RE: DEFENDANTS' PRELIMINARY OBJECTION BEFORE BA YLEY AND IIESS. JJ. ORDER AND NOW, this I '].. day of Octobcr, 1997. following argumcntthercon. the preliminary objcction ofthc dcfcndants to scrvicc is SUSTAINED and scrvicc hcrcin is sct asidc. ~ Frycklund v. Way. 410 Pa.Supcr. 347. 599 A.2d 1332 (1991). BY THE COURT. ~'~ 1"1 Jl Kcnncth A. Wisc. Esquire For thc Plaintiffs _ C"'JJl,..", 1"i.t.~L'.( Kcvin A. 1 Icss. J. / Ich.J ,/,). ,J., ,', Michael R. Kcllcy. Esquirc For thc Dcfendants :rlm