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Home My WebLink About00-06320 >- " < , . In the COURTOFCO~ONPLEASOFCUMBERLANDCOUNTY Pennsylvania CIVIL ACTION - LAW JOYCE M. RAUDABAUGH and JOHN RAUDABAUGH, Plaintiffs No. 00-6320 Vs. FRANCHISE REALTY INTERSTATE CORPORATION and McDONALD'S RESTAURANTS OF ILLINOIS, INC., Defendants 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 Notice and Complaint are served, by entering a written appearance personally, or by 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 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 LA WYERAT ONCE. IF YOU DO NOT HA VB A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH ON THE FOLLOWING PAGE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse One Courthouse Square, Fourth Floor Carlisle, P A 17013 (717) 240-6700 II - -, TO THE PROTHONOTARY: Please enter my appearance on behalf of the Plaintiffs. REILLY, WOLFSON, SHEFFEY, SCHRUM AND LUNDBERG LLP By: W. Fenton, ID #55656 Counsel for Plaintiffs 1601 Cornwall Road Lebanon,PA 17042 (717) 273-3733 Date: December /'/ ,2000 I II _..J; " In the COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Pennsylvania CIVIL ACTION - LAW JOYCE M. RAUDABAUGH and JOHN RAUDABAUGH, Plaintiffs No. 00-6320 Vs. FRANCHISE REALTY INTERSTATE CORPORATION and McDONALD'S RESTAURANTS OF ILLINOIS, INC., Defendants COMPLAINT AND NOW, come the Plaintiffs, Joyce M. Raudabaugh and John Raudabaugh, through their counsel, and file this Complaint, asserting the following in support thereof: 1. Plaintiff is Joyce M. Raudabaugh, an individual who resides at 388 Old Stonehouse Road, Mechanicsburg, Pennsylvania, 17055. 2. Plaintiff is John Raudabaugh, an individual who resides at 388 Old Stonehouse Road, Mechanicsburg, Pennsylvania, 17055. 3. At all times material hereto, Plaintiffs were wife and husband. II --: 4. Defendant is Franchise Realty Interstate Corporation, a corporation organized and existing pursuant to the laws of the state of Illinois, having a principal place of business located at 608 East High Street, Carlisle, Pennsylvania, 17013. 5. Defendant is McDonald's Restaurants of Illinois, Inc., a corporation organized and existing pursuantto the laws of the state of Illinois, having a registered address of33 North LaSalle Street, Chicago, Illinois, 60602. 6. The Defendant, Franchise Realty Interstate Corporation is the record owner of certain property located at 608 East High Street, Carlisle, Pennsylvania. 7. The property located at 608 East High Street, Carlisle, Pennsylvania, is improved by means of a restaurant located on that property, identified as a McDonald's Restaurant. 8. Plaintiffs believe, and therefore aver, that the McDonald's Restaurant located at the 608 East High Street, Carlisle, Pennsylvania, location is operated and maintained by the Defendant, McDonald's Restaurants of Illinois, Inc. 9. The Defendants, jointly, hold themselves out as providing services to the public in the form of a restaurant located at the aforementioned location. As such, Defendants provide a physical location for members of the public to visit in order to purchase food and, ancillary thereto, to use certain restroom facilities provided by Defendants. In the course of this business, Defendants invite and expect the public to visit such facilities. 10. On December 18, 1999, Plaintiff, Joyce Raudabaugh, visited the 608 East High Street location to visit and patronize the restaurant maintained by Defendants. 2 II - - J.' II. On that date, and for a period of time prior to Plaintiff's visit, a large collection of water or other substance was located on the floor of the restaurant. 12. The water or other substance located on the floor of the restaurant was present for such time that Defendants knew, or should have known, of its presence and the danger posed by such substance to patrons. 13. In her visit to the restaurant on December 18, 1999, the Plaintiff, Joyce Raudabaugh, stepped into and upon the water or other substance on the floor of the restaurant and, as a result thereof, was caused to slip and fall to the floor. 14. As a result of the slip and fall of Plaintiff, she incurred certain injuries, including but not limited to her shoulder, back and leg. COUNT I - NEGLIGENCE JOYCE RAUDABAUGH Vs. FRANCHISE REALTY INTERSTATE CORPORATION and McDONALD'S RESTAURANTS OF ILLINOIS. INC. 15. The averments of Paragraphs 1 through 14, set forth above, are incorporated herein as if set forth at length. 16. The DefendaJ!lts were negligent in the operation and maintenance of the restaurant facility, generally and specifically in the following particulars: (a) In allowing an accumulation of water and/or other substances to accumulate on the floor of the restaurant; 3 I I - j~'O"'^i_ "~",, b-.- (b) In failing, in a timely and efficient manner, to clean up or otherwise remove the accumulation of water or other substances from the floor of the restaurant; (c) In failing to post any warning or give any other notice to Plaintiff of the existence of the accumulation of water or other substances on the floor of the restaurant prior to her fall; and, (d) In failing to regularly inspect the area of the restaurant in which Plaintiff fell, which inspection, if conducted, would have revealed the existence of the accumulation of water or other substance which caused Plaintiffs fall. 17. But for the negligence of Defendants, set forth above, Plaintiffwould not have fallen and the injuries suffered would not have been incurred. 18. As a result of her injuries, Plaintiffhas suffered great pain, suffering, inconvenience, annoyance, humiliation and embarrassment. 19. As a further result to her injuries, Plaintiffhas been forced to incur medical expenses in an endeavor to cure herself of her injuries. 20. As a furtherresult of the injuries incurred, Plaintiff has suffered a loss of wages due to an inability to work subsequent to the fall. WHEREFORE, Plaintiff, Joyce M. Raudabaugh, demands damages in an amount exceeding the jurisdictional amount requiring arbitration referral by Local Rule. 4 II COUNT 11- NEGLIGENCE/CONSORTIUM JOHN RAUDABAUGH Vs. FRANCmSE REALTY INTERSTATE CORPORATION and McDONALD'S RESTAURANTS OF ILLINOIS. INC. 21. The averments of Paragraphs 1 through 20, set forth above, are incorporated herein as if set forth at length. 22. As a result ofthe injuries incurred by his wife, Joyce Raudabaugh, the Plaintiff, John Raudabaugh, has been deprived of her services, companionship and consortium. WHEREFORE, Plaintiff, John Raudabaugh, demands damages in an amount exceeding the jurisdictional amount requiring arbitration referral by Local Rule. REILLY, WOLFSON, SHEFFEY, SCHRUM AND LUNDBERG LLP By: H W.Fenton,ID#55656 Counsel for Plaintiffs 1601 Cornwall Road Lebanon, P A 17042 (717) 273-3733 Date: December / ~ , 2000 JURY TRIAL DEMANDED 5 II ~ -"- .. :i:-' VERIFICATION This verification is being signed by Harry W. Fenton, counsel for Plaintiffs, as time constraints do not permit the filing of a verification signed by Plaintiffs. This verification is made upon personal knowledge as to part and upon information and belief as to other part and is made pursuant to Pa.R.C.P. 1024(b) and 1024(c). I verify that the statements made in the foregoing document are, to that extent, true and correct to the best of my knowledge, information and belief. II -,,,,",-, iiilWi'H~Ht~:Ii~IriW~~IIillillt~lilral%!>!i1liillll'-0.iJ;j!..<i$l~*''''J.l,<~~~"'''''~;'' ~"~~ _ ~. ^, >"_', "_,=~,,~ _'m~ , 0" ,Y, __'. J","" iir!>1!WII~'~i"". - () C> 0 r; a ~n "" .:::J '"'tJft: fJj ni ~"'o' , ~~~' \""") ;IJ r-n -<2: VI ::~~~J ~::=~ CJ - -:' () "1", <c, ,:"j :.:!:] ~f:(~ -;.. () p ~.- '-:1 <::5 rq c: -- -,,~t =< -:;:...) 55 Ul -< .. ~. . ..... .. In the COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Pennsylvania CIVIL ACTION - LAW JOYCE M. RAUDABAUGH and JOHN RAUDABAUGH, 388 Old Stonehouse Road Mechanicsburg, P A 17055 Plaintiffs No. CD - ('3~ Vs. FRANcmSE REALTY INTERSTATE CORPORATION 608 East High Street Carlisle,PA 17013 AND McDONALD'S RESTAURANTS OF ILLINOIS, INC. c/o Prentice Hall Corporation 33 North LaSalle Street Chicago, IL 60602-2607 Defendants PRAECIPE FOR WRIT OF SUMMONS II ". <", '" ... (!,,,~f... '--r~ - ' . ... r TO THE PROTHONOTARY: ~k -. Please issue a Writ of Summons in the above case. Service to be made upon Defendant, Franchise Realty Interstate Corporation, by Sherif[ of Cumberland County and upon Defendant, McDonald's Restaurants of Illinois, Inc., by attorney service. REILLY, WOLFSON, SHEFFEY, SCHRUM AND LUNDBERG LLP By: ~.. .. /~ arry W. Fenton, ID #55656 Counsel for Plaintiffs 1601 Cornwall Road Lebanon,PA 17042 (717) 273-3733 Date: SeDtember If ,2000 .----.1 I I ~-~~'--"ile A.olEftJiiI'liH.. ~ ~- "'~ - . - .';, 't!l&;J;;&.li",,,,,,,l>.!till l__~ 'M_~" f~ l$ii "1 ,- , () ...... ...... ...J Y .'. . , ~~ ~~_ ".;.I,. '1lIIii= ~ fZt ~8~ ~ I V ~ ~ ~ C'Jff , ,~-~. "' .". (") ~ ~tt;.., . ...m ~, ~~ ~i5 ~ ig ~ """""- ...... c o ~. -0 o .''(1 .~-.[ ;)~;g ~.lr-n :07 (..Jr) -.r.... -CR i"\, ~m ~ ~ UI " :x ~ .::> m '.' . - ~ e ~K_"~ , . Commonwealth of Pennsylvania County of Cumberland JOYCE M. RAUDA)3AUGH AND JOHN RAUDABAUGH 388 OID STONEHOUSE ROAD MECHANICSBURG, PA 17055 vs. FRANCHISE REALTY INTERSTATE CORPORATION 608 EAST HIGH STREET CARLISLE, PA 17013 Court of Common Pleas No. nuQit-:.QJ7.9n<;;;i.yj..L'J'S!..l:!!L____mn McDONALD I S RESTAURANTS OF ILLINOIS, me. c/o PRENTICE HALL CORPORATION 33 NORTH laSALLE STREET CHICAGO, IL 60602-2607 In _ ____ <;;;i.Y..:U_kl-Qt!9!L::_!@..V!.__________________ To _fF~c:N__~~_~~Hy__~l}t~_J;:i?tSi:!=~_<;;91P2rAtion and McDonald's Restaurants of Illinois, INc. You are hereby notified that Joyce M._ Raudab_augh and _ J_9_~_~~~~~u..'!l.t_____________________________________.._______ ---------------------- ---------- the Plaintiff has commenced an action in __u____<::A'!g_J?,c:U_ql}_:-__~~__________________n_______ against you which you are required to defend or a default judgment may be entered against you. (SEAL) Curtis R. Long .------------------------------------------------ . 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".M.;."._ _.,." ...,.",.,,_. -~,-._- .'~-' " "'_c >" ., ~- ^ ,., ,.,\.. "~"~", '"' '~,., JOYCE M. RAUDABAUGH AND JOHN RAUDABAUGH, PLAINTIFFS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-6320 VS. CIVIL ACTION - LAW FRANCHISE REALTY INTERSTATE CORPORATION AND McDoNALD'S RESTAURANTS OF ILLINOIS, INC., DEFENDANTS JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please issue a rule upon Plaintiff to file a Complaint in the above matter within 20 days after service of the rule or suffer a judgment of non pros. A:;S' THOMAS & HAFER B ~. ~1P- James K. Thomas, II, Esquire I.D. No. 15613 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7617 RULE NOW, ,II) DO. .:2 q , 2000, RULE ISSUED AS A~ G.d:.2 J:>. d Prothonotary. .. . By: ~~,. p - 77(n:?~'Jt., r Deputy II ".JLI. b! o'~ Ii ~,~ ,~...",,,,.;, .~ 'iiiJ ,~.~!iIii;<pC,"C-"iI,,"'-1~"', .~~,~<,-~-,,' ,~~ .,e ~-~." ~" ,.1' _ ~, ,~- ',--' " C"':' c: -:7" ..>'-'- n-,fT ~~C Y~'i!_~', i:: c~~ .',_.,'"<' ::vs / :.::~ -< o c- .....,,,. :~ ''''''''--'"', r. ,.o{I, ., ;'-_.1 ,~? r' :'J .-J 5 ~._- .~- ~." -.w..., 1_, SHERIFF'S RETURN - U.S. CERTIFIED MAIL , CASE NO: 2000-06320 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND RAUDABAUGH JOYCE M ET AL VS. FRANCHISE REALTY INTERSTATE R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT ,MCDONALD'S RESTAURANTS OF ILLINOIS INC by United States Certified Mail postage prepaid, on the 18th day of September,2000 at 0008:00 HOURS, at C/O PRENTICE HALL CORPORATION 33 NORTH LASALLE STREET CHICAGO, IL 60602-2607 , a true and attested copy of the attached WRIT OF SUMMONS Together with The returned receipt card was signed by ILLEGIBLE SIGNATURE 09/20/2000 on Additional Comments: Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 2.99 .00 10.00 .00 18.99 County Paid by REILLY, WOLFSON, SHEFFEY on 09/29/2000 . Sworn and subscribed to before me this I:i~"e- day of (J)~ .2 <nrUA.D. ~. O. f-hdjJ,.. # Pr t onotary . II "~ . , i '~~~' J 'F SHERIFF'S RETURN - REGULAR CASE NO: 2000-06320 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND RAUDABAUGH JOYCE M ET AL VS FRANCHISE REALTY INTERSTATE RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon FRANCHISE REALTY INTERSTATE CORPORATION the DEFENDANT , at 0009:40 HOURS, on the 21st day of September, 2000 at 608 EAST HIGH STREET CARLISLE, PA 17013 ANNETTE SNYDER (ASST. MANAGER) by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 3.10 .00 10.00 .00 31.10 So Answers~.,...,; 1! ~~4'~~~"'; " R. Thomas Kline 09/29/2000 REILLY, WOLFSON Sworn and Subscribed to before By: me this ,11e- day of (}p~ ,;l.67/iJ A.D. ~ c2 /n~tb., ~ Prothonotary I II ~ - -.^ , ," . ! . Complete ~em \'2. and 3. " Iso clli""~IEiie item 4 if Restrtcfed Delivery is desired. . Print your name and address on the reverse so that we can return the card to you. . Attach this card to the back of the mailpiece, or on the front' if space permits. C. Signature x D Agent 1. Article Addressed to: D. Is delivery address different from item 1? 0 Yes If YES, enter delivery address below: 0 No McDonald's Restaurants of Illinois. Inc. c/o prentice Hall Corp. 33 N.,i';aSalle St . Chicago. III 60602-2607 3. Service Type IX Certified Mail o Registered o Insured Mail o Express Mail o Return Receipt for Merchandise DC.C.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Nurn~er. (9ORY 'Frn servi~ I~qel), " 0,' '0 4i' 5015 2395' PS Form 3811. JUly 1999 Dome$llc Return Receipt 102595-GG-M-1789 --,'-'---~--~-'------'----'.- __,,':,-,"""'_u -"', ~-~" -, M> ,~-O_ "-'1," -~_ ._. ~. < ~ -_~" '-~"", _ -'" -,__>> ,', ,_', -'"", ,', ~",-;;J" ~" _~ "'0 _~_";'~ ,_,._;_~'"'- "-~,q'J,,O-."'~'-"'-_ ^ _ .'_"_ ,'~ -..~". , JOYCE M. RAUDABAUGH AND JOHN RAUDABAUGH, PLAINTIFFS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 00-6320 VS. CIVIL ACTION - LAW FRANCHISE REALTY INTERSTATE CORPORATION AND McDoNALD'S RESTAURANTS OF ILLINOIS, INC., DEFENDANTS JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter our appearance on behalf of Defendants Franchise Realty Interstate Corporation and McDonald's Restaurants of Illinois, Inc. in the above matter. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP by: ~X- ~ James K. Thomas, II, Esquire 1.0. No. 15613 305 North Front Street, 6th Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7617 II - ~" - "~..,-, " ,-, ~- '.- , " ".,'.,,~~ - ;-~'";"-- '. ' -. . - ~. ,-'--' '" ,.'"' ' """. "0> _ ..--,.__,^ ~- -- ,-;(''''_' "_-, <"" ~-~i~ CERTIFICATE OF SERVICE AND NOW, this ~day of (}rhtut.~ ,200.91, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, hereby certify that 1 sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Henry W. Fenton, Esquire Reilly, Wolfson, Sheffey, Schrum & Lundberg 1601 Cornwall Road Lebanon, PA 17042 &fO?1L- Coleen M. Polek II ..-,.;..":;.: rliiiilli( ~n JJ _~,~ <~ _ _~~ _~ ,~" h .; ,L l ,;._"~" 1.,- ~..- , (") ~; -of;:: n"}r'i" 2::::'.1 ~7r Us;:.... -<';...;:- r::C' ~:;:(-, ZC~ >c: ~3 -, -,,,,,,,,,. ;--' ,," ~~, v,_ "..",' c:.: c;::.. ,:::) C") ""; I s~: .r.- ;::) (;j ~ --<. ~ JOYCE M. RAUDABAUGH AND JOHN RAUDABAUGH, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS No. 00-6320 VS. CIVIL ACTION - LAW FRANCHISE REALTY INTERSTATE CORPORATION AND McDoNALD'S RESTAURANTS OF ILLINOIS, INC., DEFENDANTS JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. ANSWER WlTH NEW MATTER OF McDONALD'S CORPORATION, SUCCESSOR IN INTEREST TO FRANCHISE REALTY INTERSTATE CORPORATION 1. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 1 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 2. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 2 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 3. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 3 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 4. Denied. Franchise Realty Interstate Corporation no longer exists, having been merged into McDonald's Corporation in or around January 1980. By way of further response, McDonald's Corporation is the successor in interest to II ,. , w_~, ,". -, ","~,- ." ~ "" H_" __' ._, Co _ ""'--':' Franchise Realty Interstate Corporation. It is specifically denied that either McDonald's Corporation or Franchise Realty Interstate Corporation, when the latter was in existence, had or has a principal place of business at 608 East High Street, Carlisle, Pennsylvania. Any and all other allegations contained in paragraph 4 are specifically denied and strict proof thereof is demanded at time of trial. 5. Denied. Defendant McDonald's Corporation makes no answer to said allegations as it is not directed to McDonald's Corporation and no answer is required. 6. Denied. It is specifically denied that Defendant Franchise Realty Interstate Corporation is or was the record owner of certain property located at 608 East High Street, Carlisle, Pennsylvania. 7. Denied as stated. It is denied that the Answering Defendants are responsible for a "McDonald's Restaurant" at the described location. It is admitted only that a restaurant is located at the subject location which is subject to a franchise agreement to Kenmar Enterprises, Inc. 8. Denied. Defendant McDonald's Corporation makes no answer to said allegation as it is not directed to McDonald's Corporation and no answer is required. 9. Denied. 10. Denied. Answering Defendant is without information or belief as to when or if Plaintiff Joyce Raudabaugh visited the "McDonald's Restaurant" located at 608 East High Street, Carlisle, Pennsylvania. It is specifically denied that said restaurant was owned, operated or maintained by McDonald's Corporation. Any and all other allegations contained in paragraph 10 are specifically denied and strict proof thereof is demanded at time of trial. 2 II <" ,',," .'c n' ",,' ,",*,> ~ "" -."."-",,',',, " ,-. _",'",;,y. H_ . ~'! 1;: H fl 11. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 11 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 12. Denied. It is specifically denied that McDonald's Corporation knew or should have known of the presence of water or other dangerous condition on the floor of the subject restaurant at any time material hereto. Furthermore, it is denied that the Answering Defendant controlled the store on December 18, 1999. Any and all other allegations contained in paragraph 12 are specifically denied and strict proof thereof is demanded at time of trial. 13. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 13 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 14. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 14 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. COUNT I - NEGLIGENCE Joyce Raudabaugh v. Franchise Realty Interstate Corporation and McDonald's Restaurants of Illinois, Inc. 15. Answering Defendant incorporates by reference the answers to Plaintiffs' Complaint as though the same were fully set forth herein at length. 16. (a-d) Denied. The allegations contained in paragraphs 16 (a-d) are conclusions of law to which no response is required. To the extent a response is deemed to be required, the allegations are denied pursuant to Pa.R.C.P. 1029(e). By way of further response, Ans)Nering pefend,lnt specifically denies that it owned, 3 II ',- ,-> ~~ . '_M _ , , "--'; operated or maintained the "McDonald's Restaurant" located at 608 East High Street, Carlisle, Pennsylvania on December 18, 1999, or at any time material hereto. 17. Denied. The allegations contained in paragraph 17 are conclusions of law to which no response is required. To the extent a response is deemed to be required, the allegations are denied pursuant to Pa.R,C.P. 1029(e). 18. Denied. Answering Defendants are without information or belief as to the truth of the averments of paragraph 18 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 19. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 19 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 20. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 20 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. WHEREFORE, Defendant, McDonald's Corporation, successor in interest to Franchise Realty Interstate Corporation, respectfully requests that judgment be entered in its favor and against Plaintiffs, Joyce M. and John Raudabaugh. COUNT II - NEGLIGENCE/CONSORTIUM 30hn Raudabaugh v, Franchise Realty Interstate Corporation and McDonald's Restaurants of Illinois, Inc. 21. Answering Defendant incorporates by reference the answers to Plaintiff's Complaint as though the same were fully set forth herein at length. 4 II "~'"" ,-, 22. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 22 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. WHEREFORE, Defendant, McDonald's Corporation, successor in interest to Franchise Realty Interstate Corporation, respectfully requests that judgment be entered in its favor and against Plaintiffs, Joyce M. and John Raudabaugh. NEW MATTER 23. Defendant, Franchise Realty Interstate Corporation, no longer exists, having been merged into McDonald's Corporation in or around January 1980. 24. At the time of the alleged incident involving Plaintiff, Joyce Raudabaugh, the "McDonald's Restaurant" located at 608 East High Street, Carlisle, Pennsylvania, was controlled and maintained by Kenmar Enterprises, Inc. pursuant to the terms of an assigned franchise agreement dated August 2, 1991. A true and correct copy of portions of the franchise agreement and assignment are attached hereto as Exhibit A. 25. In fact, Plaintiffs' have commenced a separate lawsuit against Kenmar Enterprises, Inc. at docket no. 2001-554, Court of Common Pleas of Cumberland County. 26. Plaintiffs' claims may be barred or reduced by Plaintiffs' own comparative and/or contributory negligence. 27. Plaintiffs' claims may be barred by the expiration of the applicable statute of limitations. 28. Some or all of Plaintiffs' injuries may have been caused by parties other than Answering Defendants. II 5 , . '. '"'0 ^ , ~ ' " S ~, WHEREFORE, Defendant, McDonald's Corporation, successor in interest to Franchise Realty Interstate Corporation, respectfully requests that judgment be entered in its favor and against Plaintiffs, Joyce M. and John Raudabaugh. Respectfully submitted, THOMAS, THOMAS &. HAFER, LLP by: \~ -====- James K. Thomas, II, Esquire Brooks R. Foland, Esquire I.D. Nos. 15613/70102 305 North Front Street, 6th Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 :128927.1 Attorneys for Defendants 6 II ~_ I ~ " VERIFICATION The undersigned, having read the foregoing Answer and New Matter verifies that the responses are based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that he has read the foregoing Answer and New Matter and that it is true and correct to the best of the signer's knowledge, information and belief. To the extent that the contents of the foregoing document are that of counsel, verifier has relied upon counsel in making this verification. This verification is made subject to the penalties of 18P A c.s.4904 relating to unsworn falsification to authorities. B Date: 9> d..rl --B7 II " ,...~:..; \;:,/" , ".'';:\' ;'. ;,. McDon~ld"S . ,;. , _ :-'.@ . '^ ';: ., '--: - " r-. .; McDonald's Corporation McDonald's Plaza Oak Brook, Illinois 60521 Direct Dial Number 708/575-6196 Messrs_ Bernard Levine c/o The Golden M Company, Inc. 6000 Executive Building Suite 515 Rockville, MD 20852 Murray Levine, w. Levine and Kenneth FRANCHISE LETTER AGREEMENT (REWRITE) August 2, 1991 RE: McDonald's Restaurant 608 East High Street CARLISLE, PENNSYLVANIA Gentlemen: McDonald's Corporation *( "McDonald's") hereby offers you a franchise to operate the above-described restaurant ("Restaurant"), in accordance with our rewrite commitment letter dated May 2, 1988 , and as set forth below. Subject to your acceptance, to be evidenced by your signature at the end of this Franchise Letter Agreement, the terms of the franchise between you and McDonald's are as follows: 1. The term of this franchise shall commence on August 2, 1991 and shall expire on August 1, 2011 unless terminated prior thereto pursuant to the provisions of the License Agreement ("License"), attached as Exhibit A, and/or the Operator's Lease ("Lease"), attached as Exhibit B, both of which Exhibits are incorporated herein and made a part hereof by reference, which together with this Franchise Letter Agreement are referred to as the "Franchise." 2. This Franchise is granted to you only for the operation of the Restaurant, and the rights granted under the Franchise are limited to the above-described location. 3. McDonald's will grant to you the rights to occupy the Restaurant and to use the McDonald's System, including its associated trademarks and service marks, in the operation of the Restaurant, as more fully set forth in the License and the Lease. Upon your acceptance of this Franchise Letter Agreement, you do hereby agree to the provisions of, and do hereby agree to execute the License and Lease. . RW 5/91 10451 *d/b/a Delaware McDonald's Corporation DEFENDA"NT'S i! EXHIBIT j A -'->-- .:J '" I,. .~ " ,~ .r- r; . Any act or failure to act which constitutes a breach of or default of the obligations, conditions, terms and covenants of the License and Lease shall constitute a breach of this entire Franchise Letter Agreement. Notice thereof shall constitute notice of a breach of this entire Franchise Letter Agreement, and any resulting termination shall terminate the Franchise in its entirety. 4. In consideration of the rights granted by this Franchise, including, but not limited to, the right to utilize the actual and potential drawing power of a McDonald's restaurant, you agree to make the following cash payments to McDonald's: (a) An initial fee of $~ payable upon the execution of this Franchise Letter Agreement. This initial fee shall be and hereby is deemed to be earned at such time as you have executed copies of the License and Lease. (b) A non-interest bearing deposit of ~as security for your faithful performance of the terms of this Franchise Letter Agreement (including all provisions of the License and Lease), has been waived. However, McDonald's hereby reserves the right to require a securi ty deposit as provided for in Article 3.07" of the Lease as a condition to the Landlord's consent to any transfer of this Franchise. (C) During the term of this Franchise, the following monthly payments shall become due as more specifically set forth in the License and Lease and shall be paid to McDonald's: (I) a monthly service fee payment of .. of monthly gross sales; and (2) a monthly rental payment equal to the basic rent amount, plus the percentage of monthly gross sales in excess of the monthly gross sales amount, as outlined below: Years: 08/02/91 through 08/01/11 Basic Rent: $~ Percentage Rent: ~ Monthly Gross Sales: $ -2- ,I .~ - 1_, ....~..-,,;" . .- . ~ . (d) All real estate taxes and special and general assessments which may be levied or assessed upon the Restaurant and any sales, rent, excise, gross receipts tax or any other tax regardless of designation which is levied or assessed against the rental of the Restaurant. (e) All other charges imposed upon McDonald's under the terms of any lease it has for the property. 5. You hereby acknowledge that you have read and understand all obligations being undertaken in this Franchise Letter Agree- ment, including, but not limited to, the fact that you shall be and hereby are responsible for the cost 'ur' tl;;l'H!r 'fbllowing items by payments by you to third parties during the term of the Franchise as more fully set forth in the License and Lease. (a) The purchase of foodstuffs and supplies which meet McDonald's specifications and quality standards. .,.--~."....",-.~ (b) The expenditure for advertising and promotion during each calendar year of a minimum amount equal to ~ of gross sales of the Restaurant. (c) The maintenance of the Restaurant pra~ises and its equipment and furnishings in good repair. (d) The payment of all charges for gas, electricity, water or other utilities, and sewer charges, if applicable. (e) The payment for the insurance coverages required under the Franchise. . .....->'h- 6. This Franchise is offered to: Murray Levine, . Bernard W. Levine and Kenneth Levine personally, and to no others, and may not be accepted by any other person or corporation, or transferred by assignment, will or by operation of law. Following acceptance, the Franchise may be assigned only in accordance with the procedures and forms pre- scribed by McDonald's and only to a corporation which is wholly and exclusively owned by you. No other individual or corporation shall acquire any interest, whether direct or indirect, hereunder, whether by stock ownership or otherwise, without McDonald's prior written consent. , 7. It is understood and agreed that neither McDonald's nor anyone acting on behalf of McDenald's'bas made any representations, inducements, promises, or agreements, orally or otherwise, res- pecting the subject matter of this Franchise Letter Agreement which is not embodied herein or set fortrt in the Uniform Franchise '-3- , II ~ ~........ ~ "_'"M~_ "" "0' . -. r~ .,. r, Offering Circular for Prospectiva Franchisees, referred to in paragraph 10 hereof, and you agree that the terms of the Franchise Letter Agreement shall not be modified or amended in any way, except by a written document which is executed by you and McDonald's and which is specifically identified as an amendment hereto. Murray Levine, Bernard W. are 8. Levine and Kenneth Levine ~ designated to personally devote full time and best efforts to the operation of the Restaurant. 9. It is also understood and agreed that no future franchise or offers of franchises for additional McDonald's restaurants, other than the Restaurant, have been promised to you and that any such offer shall be in writing, executed by McDonald's and speci- fically identified as a Franchise Letter Agreement or Rewrite Commitment Letter. 10. In accordance with various state and federal laws, you must have received the Uniform Franchise Offering Circular for Prospective Franchisees, together with various attachments thereto, ("UFOC") ten (10) business days before you sign any Franchise documents or pay anything to McDonald's. You hereby acknowledge receipt of the UFOC delivered to you on July 8, 1991 in accordance with such laws. In addition, under the Federal Trade Commission Trade Regulation Rule on Franchising and in accordance with various state statutes you must have received all Franchise documents five (2-.) business days before you sign them or pay anything to McDonald's. You hereby acknowledge receipt of such documents delivered to you in accordance with such laws. 11. If you intend to accept this Franchise Letter Agreement on the terms and conditions described above, please evidence your acceptance after you have held the Franchise documents and UFOC for the prescribed time periods by signing in the space indicated at the bottom of this Franchise Letter Agreement and return it with the License and Lease to the undersigned together with the payment due under paragraph 4 hereof. If you intend to reject this Franchise Letter Agreement, please evidence your rejection after the prescribed time periods by signing in the space indicated and return it with the License and Lease to the undersigned. 12. This Franchise Letter Agreement, the License and Lease together with your payment must be received by an authorized representative of McDonald's no later than August 2, 1991 If the prescribed holding time periods have not then expired, this -4- II -- Mh.. ~._~ I ,. ~ ,-- "J;lI-[ - ,..., ., r: -" r-, .' deadline is hereby extended to the expiration of the prescribed time periods. Your acceptance of this Franchise Letter Agreement is specifically conditioned upon and subject to your executing and returning to McDonald's this Franchise Letter Agreement, the License and Lease and your payment in the manner and within the time period set forth herein. 13. Do not sign any Franchise documents or make any payment to McDonald's before expiration of the prescribed time periods. For purposes of determining the time periods business days are Monday through Friday excluding holidays. If this Franchise Letter Agreement, the License and Lease and your payment are not received as herein provided, it shall constitute a rejection of the Franchise, in which case this Franchise Letter Agreement shall be null and void, and the parties shall have no rights, obligations or liabilities thereunder. Very t=ly yours, McDONALD'S CORPORATION, d/b/a DelaLar McDonald's Corporation I ' f / By: ~ . V U fJ- Stac owiak AS A T VICE PR DEN THE FOREGOING FRANCHISE LETTER AGREEMENT IS ACCEPTED AND CONSTITUTES A B~NDIN AGREEMENT WITH THE UNDERSIGNED. 011 jL~. c.. n 0 t 8/1/91 ' \~LU\.,c;...-_ / Mu.rr~ Lev.ine Date Bernard W. Lev~ne firml ~ 8/1/91 Kenn th Levine Date THE FOREGOING FRANCHISE LETTER AGREEMENT IS REJECTED AND ALL DOCUMENTS ENCLOSED HEREIN WILL BE RETURNED WITH THIS AGREEMENT. 8/1/91 Date Date Date ~5- II . . - 1/iIll'-, '.' . . ASSIGNMENT AND CONSENT TO ASSIGNMENT OF FRANCHISE TO A CORPORATION Parties: McDonald's Corporation, d/b/a Delaware McDonald's Corporation ("McDonald's) Bernard W. Levine ("Assignor"); KENMAR Ente'1'rises Inc. a Pennsylvania Corporation; C' Assignee") and those shareholders listed on Exhibit A attached hereto and hereby made a part hereof (collectively referred to as "Shareholders") Date: December I, 1994 WHEREAS, McDonaldls or its predecessors granted a franchise to Assignor, including a License Agreement or Franchise Agreement dated [See Exhibit B], ("License") and an Operatorls Lease dated [See Exhibit B], ("Lease"), for the purpose of operating a McDonald's restaurant located at [See Exhibit B] ("Restaurant"); WHEREAS, Assignor desires to transfer the rights in the franchise, including the License and Lease, ("Franchise") to the Assignee; and WHEREAS, the parties acknowledge this consent is necessary to insure the ability of McDonald's to have the type of operators who will operate the Restaurant business cnnsistent with McDonald's image in the specific community and in the nation as a whole of having a wholesome atmosphere attractive to children and families. NOW, THEREFORE, to induce McDonald's to execute this Assignment and Consent to Assignment of Franchise to a Corporation (Assignment"), and in consideration of the premises, promises, covenants, warranties and representations herein contained, the parties agree as follows: I. Assignor, in consideration oU1O.00 and other good and valuable consideration, hereby assigns, transfers and sets over to Assignee aU the right, title and interest of Assignor in and to the Franchise, subject to the terms and conditions orthe Franchise. 2. The effective date of the Assignment shall be August I, 1994. 3. Assignee hereby covenants and agrees to pay all fees and will perfonn all the terms and conditions of the Franchise. 4. Assignor is in no way discharged from personal liability t~ McDonald's by tillS Assignment and Assignor specifically agrees to remain personally liable for the full and faithful performance of the agreements and covenants of the Franchise. 5. Assignor, Assignee and Shareholders, jointly and severally, agree, represent and warrant that they shall not make or pennit any direct or indirect subsequent assignment or hypothecation of the Franchise, whether voluntarily or by operation oflaw, without the prior written consent of McDonald's given in accordance with the Franchise and this Assignment. 6. In addition to the above covenants, Assignor and Assignee agree that if any trusts are shareholders of shares of stock of Assignee that: lWLEV.DOC (12109/94) 1. &. . . (a) The beneficial interests in said trusts shall not be assigned without tbe prior written consent of McDonald's and shall be in accordance with the tenns of this Assigrunent and the License. (b) Assignor and Assignee warrant that the Trust Agreement supplied to McDonald's is a true and correct copy of the Trust Agreement as it is presently in force. Assignor and Assignee agree not to make any amendments to the Trust Agreement without first giving McDonald's an opportunity to review and approve same. 7. Since the transfer of an interest in the Assignee will in substance constitute an assignment of the Franchise, which Assignor and Assignee have agreed not to transfer except in accordance with certain restrictions, Assignor, Assignee and each Shareholder, jointly and severally, further represent and warrant that: (i) they are the only persons andlor entities with equity interests in Assignee; (ii) the extent of such equity interests are as set forth on Exhibit A attached hereto, and this equity ownership is applicable to all McDonald's franchises previously assigned to Assignee; (iii) there are no obligations or intentions to issue additional equity interests in Assignee; and (iv) the only persons having a beneficial interest in any trust shareholder are as listed in Exhibit A attached hereto. Assignee and each Shareholder, jointly and severally, agree they shall not make or pennit, directly or indirectly, the creation of new or additional equity interests in Assignee or make or permit any subsequent assignment or transfer thereof, or of any issued and outstanding equity interests either voluntarily or by operation of/aw, including, but not limited to: (a) transfers to successor trustees whether or not such transfer may already be provided for in any Trust Agreement under which any trustee shareholder derives its authority; and (b) any hypothecation or other encumbrance of such equity interest without the written consent of McDonald's first had and obtained in accordance with the provisions of the Franchise and this Assigrunent. Pennanent incapacity ofany Shareholder shall be deemed to be a transfer by operation oflaw for purposes of this Assignmenl As used herein the term lIequity interest(s)1l shall include direct or indirect interests in the equity of the Assignee or the business risk of the Restaurant, including, but not limited to, interests allegedly denominated as debt but which in substance encompass the type of risk-taking interest described herein or any interest in the profits of the Restaurant. If the equity ownership set forth on Exhibit A reflects a change in the equity ownership nf Assignee previously communicated to McDonald's, Assignee and Assignor hereby authorize McDonald's to add to Exhibit A a listing of all franchises owned by Assignee. Assignor and Assignee further acknowledge and agree that the equity ownership as set forth on Exlubit A shall be applicable to all restaurants listed on the Assigmnent and on Exhibit A, and shall be effective without any further action by the parties. . 8. McDonald's hereby consents to the assigrunent of the Franchise to Assignee as required by the Franchise upon the following conditions: (a) McDonald's has been induced to execute this A5figrunent by the agreements, representations and warranties executed and undertaken by Assignor, Assignee and Shareholders as set forth herein. . (b) The granting of this consent is in no way either an approval by McDonald's of the corporate charter or any other documents pertaining to Assignee and insofar as the tenns of same may conflict with or contradict the tenns of this Assigrunent said tenns are expressly disclaimed. . (c) Assignor andlor Assignee shall legend all issued and outstanding shares of stock of Assignee and future issues of shares of stock of Assignee with the following legend: -2- . . " ],,' , D . . . . This stock may not be pledged, sold, assigned or otherwise transferred, in whole or in part, voluntarily or by operation oflaw, without the prior written consent of McDonald's Corporation. Any and all transfers are also subject to the terms of the Franchise, including the License Agreement or Franchise Agreement and Operator's Lease, or other applicable agreements, for each McDonald!s restaurant operated by KENMAR Enterprises, Inc. Assignor and/or Assignee shall send to McDonald's, upon request, a copy of all outstanding certificates of stock of Assignee with the above legend typed on such certificates. (d) The granting of this consent to a trust shareholder is not a consent to any proposed future transfers of shares of stock of Assignee to beneficiaries upon the attainment of a certain age or other condition. Any and all future transfers Of vesting of shares of stock of Assignee are subject to the terms of paragraph 9 below. (e) The granting of this consent is in no way an approval ohny terms of the Trust Agreement and insofar as said terms may. conflict with or contradict the terms of this Assignment, they are expressly disclaimed, 9. The parties agree that in determining whether to grant or to withhold consent to the transfer (whether voluntary or by operation oflaw) of an interest in Assignee or the Franchise, at any future date, McDonald's shall consider of each prospective transferee, by way ofilIustration and not limitation, the following: (i) work experience and aptitude; (iI) financial background; (Iii) character; (iv) ability to personally devote full time and best efforts to managing the Restaurant; (v) residence in the locality of the Restaurant; (vi) equity interest in the Restaurant; (vii) conflicting interests; (viii) whether or not, in McDonald's sole determination, the transferee intends to be active in the operations of the Restaurant; and (Ix) such other criteria and conditions as McDonald's shall then apply in the case of an application for a new franchise to operate a McDonald's restaurant. Upon request to transfer the Franchise or an interest in Assignee, McDonald's consent to such transfer shall also be conditioned each upon such transferee's execution of an agreement by which he personally assumes full and unconditional liability for and agrees to perform from the date of such transfer all obligations, covenants and agreements contained in this Assignment to the same extent as if he had been an original party to this Assignment. 10. Granting consent to this Assignment does not constitute approval of any Shareholder as an approved owner/operator. However, Assignee and each Shareholder hereby covenant and agree to abide by and honor, as if Assignee and each Shareholder were a signatory thereto, those provisions of the License pertaining to the maintenance and protection of the McDonald's System, including, but not limited to, those provisions imposing duties of confidentiality and regulating involvement in other or similar restaurant businesses according to the terms of the License. Assignee and each Shareholder agree that a breach of this covenant shall constitute a breach of the License and entitle McDonald's to enforce all remedies available to it, including, but not limited to, the termination of the License. \ 11. The parties' respective successors, assigns, heirs and personal representatives shall be bound by and receive the benefits ofthis Assignment. All obligations, agreements, representations and warranties made by more than One party herein shall be joint and several whether or not so stipulated in the relevant paragraph herein. 12. Assignor, Assignee and Shareholders agree that McDonald's at any time during normal business hours may examine, review and copy any and all of each of their records, books, financial records, tax returns or other documents for the purpose ofinsuring compliance with the Franchise and this Assignment. -3- II . . . . 13. Assignor, Assignee and each Shareholder agree that upon breach of the conditions, representations, agreements or warranties contained herein, they and each of them shall be subject, among all other remedies available by law or hereunder, to all reHef and remedies granted to McDonald's by the Franchise. 14. Assignor represents and warrants that Assignor has notified any and all of Assignor's lienholdersllenders of this Assignment. 15. All terms and conditions of the Franchise remain in full force and effect, including, but not limited to, the requirement imposed on Bernard Vi, Levine to personally devote full time and best efforts to the operation ofthe Restaurant business. IN Wl1NESS VlHEREOF. the parties set their hands and seals effective the date set forth above. McDONALD'S CORPORATION1 d/b/a DELAWARE McDONALD'S " , CORPORATI -j -' ASSIGNOR: By: ASSIGNEE: KENMAREnterprises, Inc. By: ~J~ f~ Vice Presi ent af. ,) ~ \, ), '. ( II ' Bernard W. Levine SHAREHOLDERS: ....,..... ,J. . '). "~ Bernard W. Levine .\ . -4- " -", ^ <" ~>.-~ ~'. -, ",~ . '~. . , '''.' ,~,'~-~ >, --~ .,"-,'; 'd'" ,~,._",,~~., "'__ 1,- CERTIFICATE OF SERVICE AND NOW, \hI, :3J!';,y of 8-'1'"# ,200l I, Col,," M. Polek, of the law firm of Thomas, Thomas & Hafer, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Harry W. Fenton, Esquire Reilly, Wolfson, Sheffey, Schrum & Lundberg 1601 Cornwall Road Lebanon, PA 17042 ~ Coleen M. Polek I I , .. ~ , ~ __'c " ~, "U"_'~" , '-.-~"- "M"_[_>"","m",,,c~__~_ ,',,",,,,,0, " , ~. I .-, ,,"'-, 'C';' JOYCE M. RAUDABAUGH AND JOHN RAUDABAUGH, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS NO. 00-6320 VS. CIVIL ACTION - LAW FRANCHISE REALTY INTERSTATE CORPORATION AND McDoNALD'S RESTAURANTS Of ILLINOIS, INC., DEFENDANTS JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. ANSWER WITH NEW MATTER OF McDONALD'S RESTAURANTS OF ILLINOIS, INC. 1. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 1 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 2. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 2 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 3. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 3 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 4. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 4 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. _ ." ~ _ w ,-. ___,__" ^--o_' , . :.-' ,~-''''-'',' -,~ " " - ",'-",,- 5. Admitted. 6. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 6 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 7. Denied as stated. It is denied that the Answering Defendant is responsible for a "McDonald's Restaurant" at the described location. It is admitted only that a restaurant is located at the subject location. 8. Denied. It is specifically denied that the "McDonald's Restaurant" located at 608 East High Street, Carlisle, Pennsylvania is operated or maintained by Answering Defendant. 9. Denied. It is specifically denied that Answering Defendant has held itself out at any time material hereto as providing services to the public in the form of a restaurant located at 608 East High Street, Carlisle, Pennsylvania or that Answering Defendant provided a physical location for members of the public to visit in order to purchase food or to use certain restroom facilities ancillary thereto. It is further denied that Answering Defendant invited and/or expected the public to visit such facilities. Defendant incorporates herein by reference its paragraphs 7 and 8 of this Answer. 10. Denied. Answering Defendant is without information or belief as to when or if Plaintiff Joyce Raudabaugh visited the "McDonald's Restaurant" located at 608 East High Street, Carlisle, Pennsylvania. It is specifically denied that said restaurant was owned, operated or maintained by Answering Defendant. Any and all other allegations contained in paragraph 10 are specifically denied and strict proof thereof is demanded at time of trial. 4 -". ,. . 0-' > " '='-, _ ,>~ .., ~.. .~" , ~ .", , ;' , " __~,__",>,.. ,','----"'>--S,."'-,~_"',_;, ._",_., i . ~, 11. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 11 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 12. Denied. It is specifically denied that Answering Defendant knew or should have known of the presence of water or other dangerous condition on the floor of the subject restaurant at any time material hereto. Furthermore, it is denied that the Answering Defendant operated, maintained or controlled the store on December 18, 1999. Any and all other allegations contained in paragraph 12 are specifically denied and strict proof thereof is demanded at time of trial. 13. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 13 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 14. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 14 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. COUNT I - NEGLIGENCE Joyce Raudabaugh v. Franchise Realty Interstate Corporation and McDonald's Restaurants of Illinois, Inc. 15. Answering Defendant incorporates by reference the answers to Plaintiffs' Complaint as though the same were fully set forth herein at length. 16. (a-d) Denied. The allegations contained in paragraphs 16 (a-d) are conclusions of law to which no response is required. To the extent a response is deemed to be required, the allegations are denied pursuant to Pa.R.C.P. 1029(e). By way of further response, Answering Defendant specifically denies that it owns, ;3 I I _'0-"' '_" , ~,-~ --,.- , .," .~ " '" ~ - ~',-~.-""-"'''-'- ">''<'-" operates or maintains the "McDonald's Restaurant" located at 608 East High Street, Carlisle, Pennsylvania on December 18, 1999, or at any time material hereto. 17. Denied. The allegations contained in paragraph 17 are conclusions of law to which no response is required. To the extent a response is deemed to be required, the allegations are denied pursuant to Pa.R.C.P. 1029(e). 18. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 18 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 19. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 19 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 20. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 20 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. WHEREFORE, Defendant, McDonald's Restaurants of Illinois, Inc., respectfully requests that judgment be entered in its favor and against Plaintiffs, Joyce M. and John Raudabaugh. COUNT II - NEGLIGENCE/CONSORTIUM John Raudabaugh v. Franchise Realty Interstate Corporation and McDonald's Restaurants of Illinois, Inc. 21. Answering Defendant incorporates by reference the answers to Plaintiff's Complaint as though the same were fully set forth herein at length. 22. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph 22 of Plaintiffs' Complaint and the same are therefore denied and proof thereof is demanded at time of trial. 4 I I " .-," ~. . H'- _A' ,- _ "A_ 'V ,0 -- '." ',~.. - "', .,-, -".-",." ,-,~-; ,1 -~~,;-'C WHEREFORE, Defendant, McDonald's Restaurants of Illinois, Inc., respectfully requests that judgment be entered in its favor and against Plaintiffs, Joyce M. and John Raudabaugh. NEW MATTER 23. Defendant, McDonald's Restaurants of Illinois, Inc., does not own or operate the "McDonald's Restaurant" located at 608 East High Street, Carlisle, Pennsylvania. 24. Defendant, McDonald's Restaurants of Illinois, Inc., does not participate in the management of the "McDonald's Restaurant" located at 608 East High Street, Carlisle, Pennsylvania. 25. Defendant, McDonald's Restaurants of Illinois, Inc., does not file a tax return for or on behalf of the "McDonald's Restaurant" located at 608 East High Street, Carlisle, Pennsylvania. 26. Defendant, McDonald's Restaurants of Illinois, Inc., does not, nor does it have the right to, hire, discharge or discipline employees of the "McDonald's Restaurant" located at 608 East High Street, Carlisle, Pennsylvania. 27. Defendant, McDonald's Restaurants of Illinois, Inc., does not, nor does it have the responsibility or authority for maintenance of the premises of the "McDonald's Restaurant" located at 608 East High Street, Carlisle, Pennsylvania. 28. Defendant, McDonald's Restaurants of Illinois, Inc., does not, nor does it have the right to, control any of the activities necessary to carryon the business operations of the "McDonald's Restaurant" located at 608 East High Street, Carlisle, Pennsylvania. 5 I I . '~ _, _'0' ,_, ->,'-,">~ ~,,-, -'~ ,,,,,,""',,,, -,'" -, , j - -~", 29. At the time of the alleged incident involving Plaintiff, Joyce Raudabaugh, it is believed that the "McDonald's Restaurant" located at 608 East High Street, Carlisle, Pennsylvania, was controlled and maintained by Kenmar Enterprises, Inc. pursuant to the terms of an assigned franchise agreement dated August 2, 1991. A true and correct copy of portions of the franchise agreement and assignment are attached hereto as Exhibit A. 30. In fact, Plaintiffs' have commenced a separate lawsuit against Kenmar Enterprises, Inc. at docket no. 2001-554, Court of Common Pleas of Cumberland County. 31. Plaintiffs' claims may be barred or reduced by Plaintiffs' own comparative and/or contributory negligence. 32. Plaintiffs' claims may be barred by the expiration of the applicable statute of limitations. 33. Some or all of Plaintiffs' injuries may have been caused by parties other than Answering Defendant. WHEREFORE, Defendant, McDonald's Restaurants of Illinois, Inc., respectfully requests that judgment be entered in its favor and against Plaintiffs, Joyce M. and John Raudabaugh. Respectfully submitted, THOMAS, THOMAS &. HAFER, LLP ~~ I\.=> by: ... am~ K. Tho~ II, Fc:quire Brooks R. Foland, Esquire LD. Nos. 15613/70102 305 North Front Street, POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 :128927.1 Attorneys for Defendants 6 I I ~ i,.,;. ,"j VERIFICATION STATE OF ILLINOIS ) ) SS.: COUNTY OF DuPAGE ) Robert Johnson, being duly sworn, deposes and verifies the foregoing Answer and New Matter for and on behalf of McDonald's Restaurants of lllinois, Ioc., and he is duly authorized to do so; that certain of the matters stated therein are not within the personal knowledge of deponent; that the facts stated therein have been assembled by authorized agents, employees, and counsel; and deponent is informed that the facts stated therein are true. I declare under penalty of perjury under the laws of the State of lllinois that the foregoing is true to the best of my information, knowledge and beli Sworn to and subscribed before me thigd 9 d: day of ~ ,2001. ~O~ My c mnQ8;IGBIM,e$EAl fUZABETH PUOAbAI. IIOT ARY F\.I "" ...., BllC, STATE OF COMM""H.l~, EXPIRE . IUlNoIe '~~V.. "" 1I.08Rlll/04 , -," -~'\;"'''''''-'''.<\A, II ., -, ~ .~ .', ,~ tt " r-. J " ....r~~: \~2,I" "'t. . ,~ Mc80naid"S ,;. " ". ;:>:@ McDonald's Corporation McDonald's Plaza Oak Brook. Illinois 60521 Direct Dial Number 708/575-6196 FRANCHISE LETTER AGREEMENT (REWRITE) Messrs. Murray Levine, Bernard W. Levine and Kenneth Levine c/o The Golden M Company, Inc. 6000 Executive Building Suite 515 Rockville, MD 20852 Gentlemen: August 2, 1991 RE: McDonald's Restaurant 608 East High Street CARLISLE, PENNSYLVANIA McDonald's Corporation *( "McDonald's") hereby offers you a franchise to operate the above-described restaurant ("Restaurant"), in accordance with our rewrite commitment letter dated May 2, 1988 , and as set forth below. Subject to your acceptance, to be evidenced by your signature at the end of this Franchise Letter Agreement, the terms of the franchise between you and McDonald's are as follows: 1. The term of this franchise shall commence on August 2, 1991 and shall expire on August 1, 2011 unless terminated prior thereto pursuant to the provisions of the License Agreement ("License"), attached as Exhibit A, and/or the Operator's Lease ("Lease"), attached as Exhibit B, both of which Exhibits are incorporated herein and made a part hereof by reference, which together with this Franchise Letter Agreement are referred to as the "Franchise." 2. This Franchise is granted to you only for the operation of the Restaurant, and the rights granted under the Franchise are limited to the above-described location. 3. McDonald's will grant to you the rights to occupy the Restaurant and to use the McDonald's System, including its associated trademarks and service marks, in the operation of the Restaurant, as more fully set forth in the License and the Lease. Upon your acceptance of this Franchise Letter Agreement, you do hereby agree to the provisions of, and do hereby agree to execute the License and Lease. RW 5/91 10451 *d/b/a Delaware McDonald's Corporation DEFENDANT'S .b EXHIBIT f A Any act or failure to act which constitutes a breach of or default of the obligations, conditions, terms and covenants of the License and Lease shall constitute a breach of this entire Franchise Letter Agreement. Notice thereof shall constitute notice of a breach of this entire Franchise Letter Agreement, and any resulting termination shall terminate the Franchise in its entirety. 4. In consideration of the rights granted by this Franchise, including, but not limited to, the right to utilize the actual and potential drawing power of a McDonald's restaurant, you agree to make the following cash payments to McDonald's: (a) An initial fee of $~ payable upon the execution of this Franchise Letter Aareement. This initial fee shall be and hereby is deemed to be earned at such time as you have executed copies of the License and Lease. (b) A non-interest bearing deposit of ~as security for your faithful performance of the terms of this Franchise Letter Agreement (including all provisions of the License and Lease), has been waived. However, McDonald's hereby reserves the right to require a securi ty deposit as provided for in Article 3.07 of the Lease as a condition to the Landlord's consent to any transfer of this Franchise. (c) During the term of this Franchise, the following monthly payments shall become due as more specifically set forth in the License and Lease and shall be paid to McDonald's: (1) a monthly service fee payment of _ of monthly gross sales; and (2) a monthly rental payment equal to the basic rent amount, plus the percentage of monthly gross sales in excess of the monthly gross sales amount, as outlined below: Basic Rent: 08/02/91 through 08/01/11 $ ~ $ Years: Percentage Rem: : Monthly Gross Sales: -2- ,~ ~ . .- . .-: ^ ~. (d) All real estate taxes and special and general assessments which may be levied or assessed upon the Restaurant and any sales, rent, excise, gross receipts tax or any other tax regardless of designation which is levied or assessed against the rental of the Restaurant. (e) All other charges imposed upon McDonald's under the terms of any lease it has for the property. 5. You hereby acknowledge that you have read and understand all obligations being undertaken in this Franchise Letter Agree- ment, including, but not limited to, the fact that you shall be and hereby are responsible for the cost. i!JiIfl'''~I1r 'f'ollowing items by payments by you to third parties during the term of the Franchise as more fully set forth in the License and Lease. (a) The purchase of foodstuffs and supplies which meet McDonald's specifications and quality standards. .'......Jv.,.__.'"q'~ (b) The expenditure for advertising and promotion during each calendar year of a minimum amount equal to ~ of gross sales of the Restaurant. (c) The maintenance of the Restaurant premises and its equipment and furnishings in good repair. (d) The payment of all charges for gas, electricity, water or other utilities, and sewer charges, if applicable. (e) The payment for the insurance coverages required under the Franchise. . '....;..fi. 6. This Franchise is offered to: Murray Levine, Bernard W. Levine and Kenneth Levine personally, and to no others, and may not be accepted by any other person or corporation, or transferred by assignment, will or by operation of law. Following acceptance, the Franchise may be assigned only in accordance with the procedures and forms pre- scribed by McDonald's and only to a corporation which is wholly and exclusively owned by you. No other individual or corporation shall acquire any interest, whether direct or indirect, hereunder, whether by stock ownership or otherwise, without McDonald's prior written consent. , 7. It is understood and agreed that neither McDonald's nor anyone acting on behalf of McDenald's'nas made any representations, inducements, promises, or agreements, orally or otherwise, res- pecting the subject matter of this Franchise Letter Agreement which is not embodied herein or set fortt in the Uniform Franchise -3- . 1 II -~-"~ . - ': .,. r;. . "I I I I I - ,~ Offering Circular for Prospective Franchisees, referred to in paragraph 10 hereof, and you agree that the terms of the Franchise Letter Agreement shall not be modified or amended in any way, except by a written document which is executed by you and McDonald's and which is specifically identified as an amendment hereto. Murray Levine, Bernard W. are 8. Levine and Kenneth Levine ~ designated to personally devote full time and best efforts to the operation of the Restaurant. 9. It is also understood and agreed that no future franchise or offers of franchises for additional McDonald's restaurants, other than the Restaurant, have been promised to you and that any such offer shall be in writing, executed by McDonald's and speci- fically identified as a Franchise Letter Agreement or Rewrite Commitment Letter. 10. In accordance with various state and federal laws, you must have received the Uniform Franchise Offering Circular for Prospective Franchisees, together with various attachments thereto, ("UFOC") ten (10) business days before you sign any Franchise documents or pay anything to McDonald's. You hereby acknowledge receipt of the UFoe delivered to you on July 8, 1991 in accordance with such laws. In addition, under the Federal Trade Commission Trade Regulation Rule on Franchising and in accordance with various state statutes you must have received all Franchise documents five (2-.) business days before you sign them or pay anything to McDonald's. You hereby acknowledge receipt of such documents delivered to you in accordance with such laws. 11. If you intend to accept this Franchise Letter Agreement on the terms and conditions described above, please evidence your acceptance after you have held the Franchise documents and UFOe for the prescribed time periods by signing in the space indicated at the bottom of this Franchise Letter Agreement and return it with the License and Lease to the undersigned together with the payment due under paragraph 4 hereof. If you intend to reject this Franchise Letter Agreement, please evidence your rejection after the prescribed time periods by signing in the space indicated and return it with the License and Lease to the undersigned. 12. This Franchise Letter Agreement, the License and Lease together with your payment must be. received by an authorized representative of McDonald's no later than August 2, 1991 If the prescribed holding time periods have not then expired, this -4- II ~. ~" -~- ~ . ,.... ."":1 r: . I' ., deadline is hereby extended to the expiration of the prescribed time periods. Your acceptance of this Franchise Letter Agreement is specifically conditioned upon and subject to your executing and returning to McDonald's this Franchise Letter Agreement, the License and Lease and your payment in the manner and within the time period set forth herein. 13. Do not sign any Franchise documents or make any payment to McDonald's before expiration of the prescribed time periods. For purposes of determining the time periods business days are Monday through Friday excluding holidays. If this Franchise Letter Agreement, the License and Lease and your payment are not received as herein provided, it shall constitute a rejection of the Franchise, in which case this Franchise Letter Agreement shall be null and void, and the parties shall have no rights, obligations or liabilities thereunder. Very truly yours, McDONALD'S CORPORATioN, d/b/a Delawar~cDOna1dl! porporation By:E~. Q-Y u ~. Stac owiak AS ANT VICE PH S DEN THE FOREGOING FRANCHISE LETTER AGREEMENT IS ACCEPTED AND CONSTITU:; ;~~IN~I~AGRrENT WIT~HE UNDERSIGNO i- ~:;-;;91 ' \~LU\.30.-c / 8/1/91 Murra I Levine Date Bernard W. LevJ.ne Date 1/ 8/1/91 Kenn th Levine Date THE FOREGOING FRANCHISE LETTER AGREEMENT IS REJECTED AND ALL DOCUMENTS ENCLOSED HEREIN WILL BE RETURNED WITH THIS AGREEMENT. Date Date -5- II . . ~" 'k~ , .,,- . '. . ASSIGNMENT AND CONSENT TO ASSIGNMENT OF FRANCmSE TO A CORPORATION Parties: McDonaldls Corporation, d/b/a Delaware McDonald's Corporation ("McDonald's) Bernard W. Levine (IlAssignor"); KENMAR Enterprises. Inc. a Pennsylvania Corporation; (" Assignee") and those shareholders listed on Exhibit A attached hereto and hereby made a part hereof(collectively referred to as IIShareholders") Date: December 1, 1994 WHEREAS, McDonald's or its predecessors granted a franchise to Assignor, including a License Agreement or Franchise Agreement dated [See Exhibit B], (IILicense") and an Operator's Lease dated [See Exhibit B], ("Lease"), for the purpose of operating a McDonald's restaurant located at [See Exhibit B] ("Restaurant"); WHEREAS, Assignor desires to transfer the rights in the franchise, including the License and Lease, (I1Franchisell) to the Assignee; and WHEREAS, the parties acknowledge this consent is necessary to insure the ability of McDonald's to have the type of operators who will operate the Restaurant business consistent with McDonald's image in the specific community and in the nation as a whole of having a wholesome atmosphere attractive to children and families. NOW, THEREFORE, to induce McDonald's to execute this Assignment and Consent to Assignment of Franchise to a Corporation (Assignment"), and in consideration of the premises, promises, covenants, warranties and representations herein contained, the parties agree as follows: 1. Assignor, in consideration of$10.00 and other good and valuable consideration, hereby assigns, transfers and sets over to Assignee all the right, title and interest of Assignor in and to the Franchise, subject to the tel1lls and conditions of the Franchise, 2. The effective date of the Assignment shall be August 1, 1994. 3. Assignee hereby covenants and agrees to pay all fees and will perfol1ll all the terms and conditions of the Franchise. 4. Assignor is in no way discharged from personal liability t~ McDonald's by tlus Assignment and Assignor specifically agrees to remain personally liable for the full and faithful performance of the agreements and covenants of the Franchise. 5. Assignor, Assignee and Shareholders, jointly and severally, agree, represent and warrant that they shall not make or permit any direct or indirect subsequent assignment or hypothecation of the Franchise, whether voluntarily or by operation oflaw, without the prior written consent of McDonald's given in accordance with the Franchise and this Assignment. 6. In addition to the above covenants, Assignor and Assignee agree that if any trusts are shareholders of shares of stock of Assignee that: IWLEV.DOC (12/09/94) - , - ~ . ; . . (a) The beneficial interests in said trusts shall not be assigned without the prior written consent of McDonald's and shall be in accordance with the tenns of this Assignment and the License. (b) Assignor and Assignee warrant that the Trust Agreement supplied to McDonald'. is a true and correct copy of the Trust Agreement as it i. presently in force. Assignor and Assignee agree' not to make any amendments to the Trust Agreement without first giving McDonald's an opportunity to review and approve same. 7. Since the transfer oran interest in the Assignee will in substance constitute an assigrunent ofthe Franchise, which Assignor and Assignee have agreed not to transfer except in accordance with certain restrictions, Assignor, Assignee and each Shareholder, jointly and severaUy, further represent and warrant that: (i) they are the only persons andlor entities with equity interests in Assignee; (ii) the extent of such equity interests are as set forth on Exhibit A attached hereto, and this equity ownership is applicable to all McDonald's franchises previously assigned to Assign~e; (ill) there are no obligations or intentions to issue additional equity interests in Assignee; and (iv) the only persons having a beneficial interest in any trust shareholder are as listed in Exhibit A attached hereto. Assignee and each Shareholder, jointly and severally, agree they shall not make or pennit, directly or indirectly, the creation of new or additional equity interests in Assignee or make or permit any subsequent assignment or transfer thereof, or of any issued and outstantling equity interests either voluntarily or by operation of law, including, but not limited to: (a) transfers to successor trustees whether or not such transfer may already be provided for in any Trust Agreement under which any trustee shareholder derives its authority; and (b) any hypothecation or other encumbrance of such equity interest without the written consent of Me Do rial d's first had and obtained in accordance with the provisions of the Franchise and this Assigrunent. Pennanent incapacity of any Shareholder shall be deemed to be a transfer by operation oflaw for purposes of this Assignment. As used herein the tenn "equity interest(s)" shall include direct or indirect interests in the equity of the Assignee ot the business risk of the Restaurant, including, but not limited to, interests allegedly denominated as debt but which in substance encompass the type of risk-taking interest described herein or any interest in the profits of the Restaurant. !flhe equity ownership set forth on Exhibit A reflects a change in the equity ownership of Assignee previously communicated to McDonald's, Assignee and Assignor hereby authorize McDonald's to add to Exhibit A a listing of all franchises owned by Assignee. Assignor and Assignee further acknowledge and agree that the equity ownership as set forth on Exhibit A shall be applicable to aU restaurants listed on the Assignment and on Exhibit A, and shall be effective without ilny further action by the parties. . 8. McDonald's hereby consents to the assignment of the Franchise to Assignee as required by tne Franchise upon the following conditions: (a) McDonald's has been induced to execute this Asfignment by the agreements, representations and warranties executed and undertaken by Assignor, Assignee and Shareholders as set forth herein. (b) The granting of this consent is in no way either an approval by McDonald's of the corporate charter or any other documents pertaining to Assignee and insofar as the terms of same may conflict with or contradict the tenus of this Assigrunent said tenns are expressly disclaimed. . (c) Assignor and/or Assignee shall legend all issued and outstanding shares of stock of Assignee and future issues of shares of stock of Assignee with the following legend: -2- . . , , . . This stock may not be pledged, sold, assigned or otherwise transferred, in whole or in pan, voluntarily or by operation oflaw, without the prior written consent of McDonald's Corporation. Any and all transfers are also subject to the tenns of the Franchise, including the License Agreement or Franchise Agreement and Operators Lease, or other applicable agreements, for each McDonald's restaurant operated by KENMAR Enterprises, Inc. Assignor and/or Assignee shali send to McDonald's, upon request, a copy of all outstanding certificates of stock of Assignee with the above legend typed on such certificates. (d) The granting of this consent to a trust shareholder is nota consent to any proposed future transfers of shares of stock of Assignee to beneficiaries upon the attainment ofa certain age or other condition. Any and all future transfers or vesting of shares of stock of Assignee are subject to the tenns nf paragraph 9 below. (e) The granting of this consent is in no way an approval of any terms ofthe Trust Agreement and insofar as said tenns may" conflict with or contradict the tenns of tIllS Assignment, they are expressly disclaimed. 9. The parties agree that in detennining whether to grant or to withhold consent to the transfer (whether voluntary or by operation of law) of an interest in Assignee or the Franchise, at any future date, McDonald's shall consider of each prospective transferee, by way of illustration and not limitation, the following: (i) work experience and aptitude; (ii) financial background; (Iii) character; (iv) ability to personally devote full time and best efforts to managing the Restaurant; (v) residence in the locality of the Restaurant; (vi) equity interest in the Restaurant; (vii) conflicting interests; (viii) whether or not, in McDonald's sole detennination, the transferee intends to be active in the operations of the Restaurant; and (be) such other criteria and conditions as McDonald's shall then apply in the case of an application for a new franchise to operate a McDonald's restaurant. Upon request to transfer the Franchise or an interest in Assignee, McDonald's consent to such transfer shall also be conditioned each upon such transferee's execution oran agreement by which he personally assumes full and unconditional liability for and agrees to perfonn from the date of such transfer all obligations, covenants and agreements contained in this Assignment to the same extent as if he had been an original party to this Assignment. 10. Granting consent to this Assigrunent does not constitute approval of any Shareholder as an approved owner/operator. However, Assignee and each Shareholder hereby covenant and agree to abide by and honor. as if Assignee and each Shareholder were a signatory thereto, those provisions of the License pertaining to the maintenance and protection ofthe McDonald's System, including, but not limited to, those provisions imposing duties of confidentiality and regulating involvement in other or similar restaurant businesses according to the tenns of the License. Assignee and each Shareholder agree that a breach of this covenant shall constitute a breach of the License and entitle McDonald's to enforce all remedies available to it, including, but not limited to, the tennination of the License. i 11. The parties' respective successors, assigns, heirs and personal representatives shaU be bound by and receive the benefits of this Assigrunent. All obligations, agreements, representations and warranties made by more than one party herein shall be joint and several whether or not so stipulated in the relevant paragraphherein. 12. Assignor, Assignee and Shareholders agree that McDonald', at any time during nonnal business hours may examine, review and copy any and all of each of their records, books, financial records, tax returns or other documents for the purpose of insuring compliance with the Franchise and this Assigrunent. -3. II . . , . . 13. Assignor, Assignee and each Shareholder agree that upon breach of the conditions, representations, agreements or warranties contained herein, they and each of them shall be subject, among all other remedies available by law or hereunder, to all relief and remedies granted to McDonald's by the Franchise. 14. Assignor represents and warrants that Assignor has notified any and all of Assigno~s lienholdersllenders of this Assigrunent. 15. All tenus and conditions of the Franchise remain in full force and effect, including, but not limited to, the requirement imposed on Bernard W. Levine to personally devote full time and best efforts to the operation of the Restaurant business. IN WITNESS WHEREOF, the parties set their hands and seals effective the date set forth above. McDONALD'S CORPORATION, d/b/a DELAWARE McDONALD'S ( / CORPORATI ~7 By: ASSIGNOR: ~ 1(' \ '..... - ). (P Bernard W. Levine ASSIGNEE: KENMAREnterprises, Inc. v~J~ pJ~~ SHAREHOLDERS: ").,, ). '. (. Bernard W. Levine ( ,\ . -4- ~ -,~ --,~~. -. "~, -,~-~.'" " , "--~'O _ , , 'e" " ~ -," <,' -'-' -' ~-'~ CERTIFICATE OF SERVICE . .~ p '/JI;A/1A (J. AND NOW, this 5 day Of~r-\-{/"'-'V-{/J... , 2001, I, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Harry W. Fenton, Esquire Reilly, Wolfson, Sheffey, Schrum & Lundberg 1601 Cornwall Road Lebanon, PA 17042 rJWx Coleen M. Polek - II ",--. 1<," . "lIliIIIIilIiiI~-~ r . . ~ ""~... _ N ~,' ""ihiII~~~-' .w.._.. U;llj;,j~.~~ll'.t'-, -~- -~ . ~- '^ . , ~= - --",'",.,' ..., , ,-" . . 0 c' ~.? c ., :.:;;- UJ __oj -ClUJ 1""'1 ~ D;fq'{ -U ,.- Le- I , -r'; ,:..) (fJ .~ (rt (:~) -<:z: --, c) ~o "'.-"", v .".L'-n :pr. :1i: 0-- 7...) Z~J --, ' ~ C:,lfl $e: ---1 z :.v ~ ::;;! N -< Iii'