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Home My WebLink About01-1079 FX ""',-."; <..-,.'- ''-,,,''__o,.e,c; EWING & SHELLY, INC., d/b/a CARLISLE CATERING, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-1071 CIVIL TERM V. CIVIL ACTION-LAW WILLIAM PROCHASKA, Defendant. NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court, your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a 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 TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 II ~""C_" i~ EWING & SHELLY, INC., d/b/a CARLISLE CATERING, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA NO. 2001- /0'7'1 CIVIL TERM V. CIVIL ACTION-LAW WILLIAM PROCHASKA, Defendant. COMPLAINT NOW comes Plaintiff, Ewing & Shelly, Inc., by and through its attorneys, O'BRIEN, BARIC & SCHERER, and files the within complaint and, in support thereof, sets forth the following: 1. Ewing & Shelly, Inc. is a Pennsylvania corporation with its principal place of business located at 148 South Hanover Street, Carlisle, Cumberland County, Pennsylvania. 2. Ewing & Shelly, Inc. owns a fictitious name through which it does business, said name being Carlisle Catering. 3. Defendant, William Prochaska, is an adult individual with a residence address of 533 Park Drive, Boiling Springs, Cumberland County, Pennsylvania. 4. Carlisle Catering is in the business of providing catering services to individuals and entities for functions. 5. In June, 2000, Prochaska contacted Carlisle Catering and requested a quotation from Carlisle Catering to cater a graduation party at the Prochaska residence for the Defendant's son's graduation. 1 Ii ii1iliitb 6. On or about June 8, 2000, Carlisle Catering provided Prochaska with a catering proposal for the function. A true and correct copy of the catering proposal is attached hereto as Exhibit I and is incorporated. 7. On or about June 9, 2000, Prochaska came to the offices of Carlisle Catering to discuss the function. At that time, Prochaska was given a copy of a document known as General Information for Catered Events ("General Information Sheet"). A true and correct copy of the General Information Sheet is attached hereto as Exhibit 2 and is incorporated. 8. At that same meeting, Prochaska was provided with a document known as a Catering Contract. A true and correct copy of the Catering Contract is attached hereto as Exhibit 3 and is incorporated. Prochaska paid a deposit of $50.00 to Carlisle Catering. 9. Thereafter, Prochaska requested that Carlisle Catering provide services, equipment and food for the function to take place at Prochaska's residence on June 11, 2000. 10. On June 11,2000, employees of Carlisle Catering arrived at the Prochaska residence and began to prepare for the outside event for which food service had been scheduled to begin at 2:00 p.m. At 2:00 p.m., Prochaska was informed that the food was ready to be served. Employees of Carlisle Catering at that time informed Prochaska that, as a consequence of the extreme heat of the day, individuals in attendance should eat as soon as possible. 11. Service of food to partygoers continued for the next several hours without event. 12. At 4:00 p.m., employees of Carlisle Catering suggested that the food be moved indoors to the air conditioned house of Prochaska. Prochaska agreed and the food was moved inside. 2 Ii .'--~- .-"~"._'" 13. The food placed in the home included hot dishes which had constantly been heated by use of sterno units. These units remained on and in place when the food was moved inside the home. 14. After delivering the food inside the home, employees of Carlisle Catering began to pack delivery vans with dirty dishes and linens from the event. At approximately 5:00 p.m., a Carlisle employee went into the home to inform Prochaska that they were leaving, having provided to Prochaska the services requested under the catering proposal. Upon entering the home, it was discovered that Prochaska had extinguished the sterno units under the hot dishes moved into the residence. 15. At the time ofleaving the Prochaska residence, no complaints had been made to any Carlisle Catering employee regarding the quality of the foodstuffs provided for the event. 16. On June 11,2000, Prochaska was provided with an invoice for the services, equipment and food provided by Carlisle Catering. The total invoice price was $2,434.81. A true and correct copy of the invoice provided to Prochaska is attached hereto as Exhibit 4 and is incorporated. 17. Despite demand therefore, Prochaska has failed and refused to pay to Carlisle Catering the sum of$2,384.81 representing the invoice amount less the $50.00 deposit. COUNT I EWING & SHELLY, INC. v. WILLIAM PROCHASKA BREACH OF CONTRACT 18. Plaintiff incorporates by reference paragraphs one through seventeen as though set forth at length. Ii 3 Ii 19. The parties hereto reached entered into a contract whereby Carlisle Catering would provide the equipment, services and foodstuffs to cater a function for Prochaska. 20. Carlisle Catering performed under the contract and all conditions precedent to the contract have been fulfilled. 21. Prochaska breached the contract by failing and refusing to pay for the services, equipment and foodstuffs provided to him by Carlisle Catering. WHEREFORE, Plaintiff requests judgment in its favor and against Defendant for the sum of $2,384.81 plus costs, interest and expenses. COUNT II EWING & SHELLY, INC. v. WILLIAM PROCHASKA QUANTUM MERUIT 22. Plaintiff incorporates paragraphs one through twenty-one (21) as though set forth at length. 23, Prochaska had, used and enjoyed the benefits of the services, equipment and foodstuffs provided by Carlisle Catering at the event held on June 11, 2000 at the residence of Prochaska. , 24. Prochaska has failed and refused to pay for the services, equipment and foodstuffs I provided to him by Carlisle Catering and he li1as been unjustly enriched by obtaining the services, equipment and foodstujIs vyithout making payment therefor. I 4 II ;,j ,1 ;i ~I 1 , . ;,j 1 J j Respectfully submitted, , :) ! ;~ :1 [I :~ , 'I j :1 WHEREFORE, Plaintiff requests judgment in its favor and against Defendant for the sum of$2,384.81 plus costs and expenses. Ob:7J2tr David A. Baric, Esquire ID # 44853 17 West South Street Carlisle, P A 17013 (717) 249-6873 '-J Attorney for Plaintiff dab.dir/Iitigation/ewing/prochaskalcomplaint2.pld Ii VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. S 4904, relating to unsworn falsification to authorities. ~'= Linda Ewmg, eSldent Ewing & Shelly, Inc. DATED: IS "ft....t.- 0' I II ,;/~-_....~ ~. ~ ; '- ~ I ~ '~ '"~~;~~,; ,. ", ., '. Carlisle Catering w~ 'r~ a r~jl~cli(m ()I.mllr g()Ocllasle.... ,To: ~Jj ~chClS l::'a- Fax Number: ':;qS ~ 15"'3 (, From: L vnctc... Date: CO 41.1..fJL Comments: Number of Pages (including cover page): ..3 ,ee.u~ ~. (J(dI t1) i ().A,t. ~ a~s - If.-fe o.~ · ~~r(~ ....<-(.~u ~ a(,.t~,.o<~~/..:hI ~ 9' ~. ~ f?e'et'<l.' ~ F4~' ....uP- ..-1..( (' ~ tl J EXHIBIT 1 Carlisle Caterlnll,148 South HanoyerStreet, Carlisle, PA 17013/7171258-5937. (7171278-4909 Fax I" .:... - 'I ,"'_ , -,-,..,.- ""'~mMl&.ti~' ()?tfI'iEtJU,9ffj ~OS!A1, . !Fa.!<; ~lit PI2 oC~c..s'k:>lL 'iE1ftE9(q: G ~G.d lJ o'll.On ~~ . !D!4q'iE: . II du....Y\~ ,[,()C!4q'I09(: S:~3. RuJe.. u.. 6?>,'S, . t]'J9,.{iE: 02 () IY) 9(U9,.{fJ3iEtj{ (YF (jUf:StI'S: mO MiE9(u ~c1 SoJo.(t:;, Cola ~b.Lo I ~ ~a.d>, (ds b. Sc.k..cl, Y'~. t Q ~ . ~c1. CVv:c:..b lOlLJiut/...tJ>.) ~Oo.)::..\ Por~ \Olv\ G \a.2@c.l rlc..\"Y\ . ~d 2;~',' Seo...6 n@u:\':nd.q Ovlllv"\. 90 ~~ es ~ ~(' 0 lIa D~-'C1 ro.w.1-C(?S _ ~a.uvn. Goo-\S\":!. Q\'CY\onCllY\.J & \>ocl rei."() Q:,oo;"rd-IO~ C$ - l~e)Ucf ~ "co~cJs- Co...\e.b" ?u.n.?lJ.)w CY\ ~o\C\. ---.. e\o~ . s g)~,q.5 I .3~'lOf- -- J.j.IS~ &><6..J~ QJQJ/..pO/lSot\ . -iM_ "" ~ ~ ~ , ['~" .J I ~I ,..c, I '. " . C9t~$~9(q-.n...orOS9lL !F~ $tJlt.E9(t]': .f,0CA~1()f}{: 'l'I'),($: 9(V!Jv{tJ3$'1t OiE q-U!EYI'S: '),($9(f(J, 1= D c.uf r'{l..U.;[. ceo I, rn df-z ,;)0')(,30" i=,e01?U "'-;/'1 '= ':;c52S0.~ rnaA!t.-u:s 9~1I' CJo,- 6,1..00'/ ,eflcltP(,.~S ..31.:J~ QC) eh0.vi4 (! ,~~. 3 'i3~. (! o.so ~ Co.;Ld 1CJ>u5 (V .0. <9 7.0D lto .50 IS. -:- 11.80,;2 S" 02.0,i'~ II9Y /3e)lellC"f{ls: "I/Q0.07 ~ 60 TIles. 2/AJ "- ' ,/ Tf>:!) ~ f3CJ7TJp'!:. cha.t:(Y , U ctl 9a/loAJs li)h;sJar ~C.JW2- pOP .$$ (ja..l -;;J ec 11 p f off ee.- A'J c"'-.c.U d / /&!J . ~ee.e ~ m"j,. I,k (7b.p,Tu.b, /Ce y 77.:S"() - ,~ ~" .-. Oi-"" ,. ~. . CS4. 'R..LlSL'E CfJVtff:1?J9{ (jIC9t/R.~LISLff: '.J{OqjS'E 148 SOf(J.rtg.( 9f9t9{Oo/<E'l{ Sif'.R.'E'Ert C9t1?j:ISL~ P.9\. 17013 (717)258-5937/F5U 258.4909 f'f,00tE 'Rj;J\'D 'J'tJ(Js '/XJC'UM~ 'W'JleJ('foo S1(i'J(S4, CO'Nt'1S4CttWl'i'J(W, l~mm M~'fOtl9(l;\~ ~!Z)AA'D $\CCf:f"lE!D ~'1E~sm'lE!D '1($'1$. General Information for Catered Events 2000 COSTS: All prices are listed as per person. PA sales tax applies to all food'service, equipment rental and services. PA SALES TAX: 6% GRATUITY-Gratuity for full service catering is 18% for events Mon-Sat. Gratuity for Sun and Holiday events is 22%. Out Catering Fees: Carlisle Catering owns its own china/flatware/and linens as well as all set up pieces needed for complete table set up. Out catering fees for the use of our table service is 4.00 per person for a complete set-up and 2.00 per person for a cocktail style set up. Glassware: Glassware is not provided unless specifically contracted for by the client. Glassware rental is .35 per glass. Rental Equipment: Equipment not provided by Carlisle Catering can be arranged though us. Rental equipment is charged at the rate of the sub- contractor which includes sales tax, insurance and set up fees. If a client wishes to arrange for rental equipment on their own, Carlisle Catering staff will arrive assuming that everything is set up and ready for service. BEVERAGE SERVICE: Full Bar: Carlisle Catering can provide clients with bartenders for a full bar service. For full bar service, the client provides the alcohol and the caterer provides the bartender, mixers, garnishes, ice for mixed drinks and plasticware. If glassware is requested, glasses are charged at the rental rate above. Ice for beer, wine and champagne is charged extra as are EXHIBIT 2 ...- ~ "., L 0 ' - t ~, c.. f,",,-,~''''- sojt drinks and juice served as. non mixers. THe charge for a full bar is 50.00 per hour per bar. If an additional bar tender is required, the bar tender is 25.00 per hour per bar tender. Wine/Beer Service: If wine is to be placed on tables in carafes, carafes can be rented from the caterer at .50 per car~fe. If wine is to be hano served at tables, there is a 50.00 per 100 guest charge to cover the additional waitstaff needed to provide this service. It is recommended that for a wine/beer bar that the client hire an extra waitstaff person to serve at 10.00 per hour. This protects the client by, having consumption monitored. Carlisle Catering"strongly recommends against having a self-serve bar at any function. Liability Laws in PA are very specific and we will be happy to go over the legal issues with our clients. BUTLERING: Butlering of food or drinks requires additional waitstaff. Labor will be charged at the rate of 10.00 per hour per person needed for the duration of the event. Please remember that not all food, even hors d'oeurve style food is "butler.able. " eLl ENT PROVIDED FOOD AND BEVERAGES: Insurance regulations do not permit Carlisle Catering to serve any food or beverage that we do not procure and prepare(bar service and wedding cakes are the only exceptions and wedding cakes to be served by the caterer must be provided by source that has liability insurance.) FOOD SERVING SCHEDULE: Food service must begin within 15 minutes of the contracted time. Delays in serving impair the quality of the food and increase labor for the event. Delays of more than 15 minutes will incur an additional labor charge for waitstaff. LINENS: For full service catering, linens are provided for the food, beverage and guest tables. Linens are included in the out catering fee as long as the client chooses linens that are owned by the caterer. If specialty linens are required an~ need to be rented, rental is passed on to the client. Please', note: DJs NEVER provide their own table covers or skirting. If caterer is to provide - ~'~. ~ ~ ~'...... .. .-. . . linens and skirting for DJs, there is an additional charge. CANDLES: Candles must be in enclosed globes. Clients will be charged for damage to linens caused by candle wax. SMOKING: Smoking is not permitted under tents or around Carlisle Catering Staff. We are a totally smoke free staff. It is recommended that clients designate a specific area for smoking and provide ashtrays or butt buckets. Carlisle Catering will not clean up cigarette butts/cigars etc. Damage to linens from smoking will also be charged to clients. CHILDREN: For full service out-catered events, it is as costly to feed a child as an adult. If a child occupies a seat and requires a place setting, the per person charge is the same for a child as an adult. We cannot provide child meals or portions at out catered events. Paper and plastic or picnic style events are an exception. The caterer does not provide high ch~irs or booster seats. These must be provided by the client qr can be rented. GUEST COUNT: The guest count includes every person to be provided with a meal. DJs, musicians, photographers etc., are not provided with meals unless paid for by the client. SEATING CHARTS: Seating charts are encouraged. Caterer will provide place settings for the exact number of guests contracted for by the client. Seating charts must be provided to the caterer at least five days before the event. If seating charts are not provided, tables will be set for eight guests to a table. WEDDING CAKES: wedding cakes baked by the caterer are 2.50 per serving and this includes the plating and serving charge. A service charge of 1.00 per person is charged on cakes not provided by the caterer to cover the china, linens and serving for the cake. Cake throwing or smearing that requires additional clean-up will be charged to the client. LEFT OVER FOOD: Food not consumed at a function will be left for the client on the following. conditions: (a)Client must provide food containers at or before the beginning of the function (b) the decision on food safety relevent to leaving food ~ ~,j !-.., , ~"~7\""~ ~.". ~~- " 11'_ -.'." ~ . will be with the caterer ana (c) the caterer assumes no liability for food left for clients once the caterer has transferred the food to client provided containers. DELIVERY/PICK-UP ORDERS: Carlisle Catering does not loan equipment for orders that are delivered or picked up. Food for take-out will be in diposable containers ready to be served. BILLING: A 100.00 (non refundable) deposit is required to guarantee a date. Deposits will be applied to final bill unless there is damage to catering equipment as specified. A minimum guaranteed guest count is required 20 days prior to the event. This is the minimum number of guests that the client will be billed for. A bill for 50% of the final bill will be issued based on this count and is due 15 days prior to the event. Guests may be added but not deleted after the minimum count is given. The final bill is due by', the conclusion of the function unless otherwise stated. . I:lllli. ~--- ~il> -~~ Ii n I - . I ~,~~'"" ~ ~<l="Ui""'''''''''';',: cs{~LlSLfJi C)f/J'f}R,J9{r; /C9t~LlSLrJi g.{CYUSrJi 148 SOCU.rt'lf '1fs4,9{Oo/rJi~srt~f:rJiq' C9t/R..LlSL~ P.9\.. 17013 (717)258-5937/FfAX 258.4909 ~~~qq9\{"q co9\{"q-'~~ for: ~!NC~: co. P d.o c/t. euj,. 9l.!D!D~SSS: q-'~..c~P!7-EOW!E: (' '1-V ..J ('1i..J ~!N'"~ (J,eo.cb.t.a..I.ui)t.. I.a.r LOC9t<rIO!N: <i!$.5.- 2>912'tE: 1/ ~ !T:r!7t4!E: '* ") I ~ !N'"<U!7t4!B!E!1{" <;T<U!ES'I"S: - .$'~ ~. 2'tE~: .s<l.:1 0.' _ 1: (non-re.fun.cfa6C~is required" 1:0 g"4 -an.1:ee 1:ering or Iiouse aa.1:e. 'I"-.ven~ cfays prior 1:0 1:he " a 7nini7num guaran:teed' guest: coun1: is aue. 9l 50% 6iCC -.viCC 6e issued' pased" on 1:liis coun1:. <T1iis 6iCC is cfue on receipt:. <:r1i.e7nin,i7nlU'n guarant:eed' guest' count: is t'1ie 7nini7num num6er of guest:s t:liat' you -.viCC 6e clia7;9ed" fOr. (Tuest:s -.v,iCC not: 6e cCeCeted' after 1:liis count' lias 6een. given.. quests 7nay 6e acfr4-,r un1:iC 4B Iiours prior t'o an event. !T1iefin.aC 6iCC is aue not' Cat:er t:lian t'1ie conct:usion of a.fiu'u:t:ion- ".T1iis con'tract: assumes t'lia1: t'1ie cCient: lias reaa and' ac~t's 1:1ie con.di-tions in 1:1ie <;T!E!l\I"!E!R5'lL .r!N'"!FO~!T:r09V CeHer affacn.ea 1:0 1:1i. 'tract:. CCien:t !Dat:e in. a !E-wing CarCisCe Cat:. . CarCisCe 9/'ouse -91pproxJ7na1:e 1:i7ne ana 7J.U7n6er of guests is required" for pCanning pU'1pOse.s ana cCien.t' is respon.si6Ce W infonn us pro7npt't'y of any proposed" clianges t'o t:1ie t:i7ne of an event' or manges in t'1ie guest' count'. Clianges -wiCC 6e <1NY>mocCa.t:-ed" if possi6Ce. EXHIBIT 3 ,~ . _ [ L '. " INVOICE , 0JtGs{, CIIttrina Catflsc ,. 148 So gf4Nwtr St1rtt C4.dl4 'SU70tJ (T17)2S8.S9J7/19<X 2S84909 l.'J>NolCE'1(O: liB!> JMIoICEM~ lI-11 'BILt.1'O: d..t:'L f!e.AH:.~.~.J.A . ~,4..L c;/~... <. &~~~ ~1'0: S"S3 ftu):.'J)...;. L ~~~ G.6. '~/J /7,?(1'7 TERMS: on ""' QTY ORDERED QTY DEIJVERED FOODISERVlCES QTY SERVED' . '. UNIT AMOUNT &0 (PO a...~<;)~.9S ~ J,3f' ~ 4,/3 ~ ('a6/~ ~.- ( "J", I ~ A,_, t'- e) .... I'~ .- ~~ J.I 3 0- J:5. 1;1 17- 60 /0/'01-/ dSll. - , . u...- o~ . 40/63 /tJ! PLEASE MAKE CHECKS PAYABLE TO: EWINGfSHELL Y INC. 8N 25-181~ EXHIBIT 4 / '3"17. - y~.ro J),";7. ~ I~O. - t../ 30.:1-5 <1-6 .Tr'~ 8"7.5"0 lof. (1)<( 50.- .9~tJ:J. '1'1 100, - . Oly:JP.'iJ'1 /tI/.- * -..- SAlOIS SHUFF, FLOWER & LINDSAY ATI'ORNEYSeAT.LAW 26 W. High Street Carlisle. PA EWING & SHELLY, INC. d/b/a CARISLEI CNTERING , Plaintiff v. WILLIAM PROCHASKA, Defendant ."oJ Ii I . ,~ ". ,-~; 'II : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA : NO. 2001-1079 CNIL TERM : CNILLAW NOTICE TO PLEAD TO: Ewing & Shelly, Inc. d/b/a Carlisle Catering C/O David A. Baric, Esquire 17 West Pomfret Street Carlisle, P A 17013 You are hereby notified to plfjad to the enclosed Answer With New Matter within twenty (20) days from sf'rvice hereof, or a def~ultjudgment may be entered against you. I Date: tJS - /Y/- 6/ II SAIDIS, SHUFF, FLOWER & LINDSAY By: Robert C,'s'aidis, squire Supreme Ct. LD. # 21458 26 West High Street Carlisle, P A 17013 (717) 243-6222 Attorney for Defendant - SAlOIS SHUFF, FLOWER & LINDSAY A1TORNEYSeATeLAW 26 W. High Street Carlisle, PA , <,,"I_i EWING d/b/a & SHELLY, INC. CARLISLE CATERING, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2001-1079 CIVIL TERM CIVIL LAW WILLIAM PROCHASKA, , Defendant ANSWER WITH NEW MATTER AND NOW comes the Defendant, William Prochaska, hereinafter (UProchaska") through his attorneys, Saidis, Shuff, Flower & Lindsay, and answers the Complaint as follows: l. Admitted. 2 . Admi tted. 3 . Admitted. 4. Admitted. 5. After reasonable investigation, Prochaska is without knowledge o~ information sufficient to form a belief as to the truth of the averments. 6. Admitted. 7. After reasonable investigation, prochaska is without knowledge o~ information sufficient to form a belief as to the truth of the averments. 8. As to the catering contract, after reasonable investigation, Prochaska is without knowledge or information sufficient to form a belief as to the truth of the averments. As to the deposit paid by Prochaska, the correct amount was one Ii SAIDIS SHUFF, FLOWER & LINDSAY A1TORNEYS.Ar-LAW 26 W. High Street Carlisle, PA , -, ' I" ,'__,_1_,'____, '':':', llliilliillllMiillld1;h 9. Admitted. By way of further answer, Prochaska requested the services, equipment and food from 2:00 p.m. to 6:00 p.m. I 10. Admitted as to Fhe event's commencement time. It is denied that Car~isle Cate~ing advised Prochaska that his guests I should eat as soon as pos~ible. On ,the contrary, Carlisle Catering knew, at all relevant times, that the party was planned with food and beverage service from 2:00 p.m. to 6:00 p.m 11. Denied. At approximately 3:15 p.m. or 3:30 p.m., the food started to spoil. 12. Admitted. 13. Admitted. 14. It is admitted that Carlisle Catering left at approximately 5:00 p.m. and that Prochaska had extinguished the sterno. It is specifically denied that Carlisle Catering had provided the services reqrested or appropriate under the proposal. 15. Ij>enfed. I Prochafka requested an employee or agent of I to have Linda Ewing call him to discuss the Carlisle Catering event. 16. Admitted. 17. Admitted. Prochaska has not paid any additional sums. 2 Ii SAlOIS SHUFF, FLOWER & LINDSAY A1TORNEYS.AT-LAW 26 W. High Street Carlisle. PA .'............ COUNT I 18. Prochaska incorporates by references paragraph 1 through 17, together with the New Matter as if set forth at length. 19. ~o answer is re~uired as the averments state a conclusionlofllaw. 20. No answer is required as the averments state a I II conclusion of law. II I! I I I il I i I I I I i I 21. No answer is required as the averments state a conclusion of law. WHEREFORE, Defendant requests judgment in his favor and against the Plaintiff. COUNT II QUANTUM MERUIT 22. Prochaska incorporates by references paragraph 1 I with the I through 21" together New Matter as if set forth at length. I I 23. Denied. To the1contrary, Carlisle Catering failed to perform as more fully set forth in this Answer With New Matter. 24. No answer is required as the averments state a conclusion of law. WHEREFORE, Defendant requests judgment in his favor and against the Plaintiff. 3 " - SAlOIS SHUFF, FLOWER & LINDSAY ATrORNEYS-AT'LAW 26 W. High Street Carlisle, PA - ~ '" ~,~ ~'" .;: .: I..' . ,. I "~ '-','l"IL ''''-->',~i: NEW MATTER 25. On June 11, 2000, the high temperate was approximately 96 degrees to 100 degrees Fahrenheit. 26. Carlisle Catering brought all of the food for the party to Prochaska's house already prepared. 27. Carlisle Catering, although knowing the party was planned for food service from 2:00 p.m. to 6:00 p.m., took no special precautions in light of the heat. 28. After the food was out for approximately an hour and one-half, it started to spoil. 29. The food items, including but not limited to the chicken, pork, ham and seafood all spoiled, were uneatable and produced an unpleasant odor. 30. Carlisle Catering failed to appropriately stage the serving of the food over the course of the event. 31. Carlisle Catering represented itself to Prochaska as a professional, full-service caterer, who Prochaska could rely upon to cater his event and allow him to enjoy his son's graduation party without problems associated with entertaining. 32. Carlisle Catering charged prochaska twenty-eight dollars and forty-six cents ($28.46) per person, excluding equipment rental and beverages. 33. Carlisle Catering's decision to move the food inside Prochaska's home was unworkable because the food had already 4 II -~.~ SAIDIS SHUFF, FLOWER & LINDSAY ATI'ORNEYS'AT'LAW 26 W. High Street Carlisle, PA c ,"'~'~ hh-- .-~ - -", ,-"".-" 1';';,1 "I. ;,;.1 spoiled and its smell and that of the sterno made the kitchen intolerable for entertaining guests. 34. Carlisle Catering did not provide to Prochaska the food service contracted for by reason of the following: A. Food spoilage; B. Failure to plan appropriately for the weather conditions; C. Failure to stage the serving over the four (4) hours contracted for; and D. Failure to conduct themselves as represented to Prochaska. WHEREFORE, Defendant requests judgment in his favor and against the Plaintiff. Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSA C. Saidis, Esquire ID # 21458 26 West High Street Carlisle, PA 17013 (71 7) 243 - 6222 Attorney for the Defendant 5 il . SAlOIS SHUFF, FLOWER & LINDSAY ATl'ORNEVS'ATlLAW 26 W. High Street Carlisle. PA L, "-L " .,i- '-' 'I ':' -",-- I ,__: ", , 1 "~_'. :.,;"" - - ,';' -.;;~'},,~~~,.;,;;:;, 1Iilii'-;-'--',':l'>'i:t VERIFICATION I verify that the statements made in the foregoing Answers With New Matter and New Matter are true and correct. I understand that false statements her~in are made subject to the penalties of 18 Pa. c.s. , S 4904, authoritiesl. DATED: 'I /J- ~ J () I / / Ii t-elating I falsification to 6 SAlOIS SHUFF, FLOWER & LINDSAY ATI'ORNEYS-ATeLAW 26 W. High Street Carlisle, PA ''<, -' '--.'- - ,_ ,_ d " "I ~ "~_' ''",'_I~~ , , '"= --"-,--. "'-._-j CERTIFICATE OF SERVICE ~ hereby certify that I served a true and correct copy of the On this J./-IL day of , 20QL I, foregoing Answer with New Matter upon all parties of record via United States Mail, postage prepaid, addressed as follows: David A. Baric, Esq. 17 West South Street Carlisle, PA 17013 SAIDIS, SHUFF, FLOWER & LINDSAY By: ~JJ/~'~ (11 !iJ;"~~~~~~ilildi!~~~~I,~itlliJ1l;.!"""."~~.~-lliJI-~~ ~., ~^ I, .. ,,"-~ - .. __4_ ~- , fl.. ....."'" ~iII.Ilii'"" -, C) f; -o~~ mt:: ~;~i ~'-- ~g Z =< Q C) _,'00/ :::1 r,:'~ -"-1 I -.~O ;;~3~ ;<C::ll ;~::j :n -< :J: ;::i!:J- -..e: y --'. ~ <.n r .=> ~. ~~'.~ '"'I~~"_"-_' - __'nO, ,--~-~,~'<,;-""-",,,.-- ,~ ',1,',::;;'. ..-- \ . EWING & SHELLY, INC., Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA V. NO. 2001-1079 CIVIL TERM WILLIAM PROCHASKA, Defendant. CIVIL ACTION-LAW PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, JUDGES OF SAID COURT: David A, Baric, Esquire, counsel for the plaintiff in the above-captioned action, respectfully represents that: I. The above-captioned action is at issue. 2. The claim of the plaintiff in the action is $2,384.81. The following attorneys are interested in the case as counselor are otherwise disqualified to sit as arbitrators: David A. Baric, Esquire and Robert C. Saidis, Esquire. WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. ~7!: David A. Baric, Esquire ORDER OF COURT \ AND NOW, )u ~ /1 ,2001, in consideration ofthe foregoing petition, ,AT' I/fl.-a/~.' UdaL .r;kJ, Esq. and~ ft}, j)~Esq. are appointed arbitrators in the above-captioned action as prayed for. BY THE COURT, ~ ""~' ~"T C.<,'_'. ':~"-"':';;:-"--~ ,u".~~ ,"". "'+' .'t, ," ,.-"'.~. ~'llj~j;i...'-',-",~,;",;,-- -- "~:' _~~, ,._"'." "... ,,,':<,0/0 - ,. ,,~.,~"" -T'<;O . ~",,",_,^'_ -~.'"'"'" ~. " i .. nl , .~, N _',,~,'T.'" " .,.'-"^!, <:) c- ~? [!'lP:: 7" ~-:T' ~;% .', c' ~~ Z'c-) ::;.;'C ~ti ~ -< (.n ~.. , ,~ '-..' r) -". :~-;; ::? ~~~) --."- .J:J ,,( ~ ~"' " ~" , ~"'f !\ltl~jii'~ EWING & SHELLY, INC., d/b/a CARLISLE CATERING, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-1079 CIVIL TERM V. CIVIL ACTION-LAW WILLIAM PROCHASKA, Defendant. REPLY TO NEW MATTER AND NOW, comes Plaintiff, Ewing & Shelly, Inc., by and through its attorneys, O'BRIEN, BARIC & SCHERER, and files the within Reply to New Matter and, in support thereof, sets forth the following: 25. Admitted in part and denied in part. It is admitted only that it was a hot day on June 11,2000. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the remaining averments and they are~ therefore, denied. 26. Admitted. 27. Denied. To the contrary, Plaintiff at all times performed its services in a competent and appropriate manner. It is denied that Defendant requested or contracted for continuous food service from 2:00 pm to 6:00 pm. 28. Denied. To the contrary, there was no spoilage offoodstuffs at 3:30 pm on June 11,2000. 29. Denied. To the contrary, during the actual serving time contracted for by defendant, the foodstuffs were edible and without spoilage. """'.1' . :o.~" , , . ..~"-. - '.,M'if!;;' 30. Denied. Plaintiff rendered its services competently during the period contracted for by defendant. 31. Denied as stated. Plaintiff offers full service catering and has been in the business of off-site catering for many years. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the Defendant's averments regarding his state of mind. 32. Admitted. Moreover, Defendant has failed and refused to pay for the services rendered. This amount included tax and gratuity per person as set forth at Exhibit 1 to the complaint. 33. Denied. To the contrary, Defendant prevented plaintiff from exercising its judgment regarding moving the foodstuffs to the air conditioned house of Defendant. The sterno units did not produce an odor in any sense intolerable to the defendant or his guests. When the foodstuffs were moved into Defendant's home, they were not spoiled. 34. Denied. To the contrary, Defendant received all of the services and benefits contracted for by him. A. Denied. No food spoilage occurred during the service period contracted. B. Denied. Plaintiff took all appropriate actions. C. Denied. Defendant never contracted for 4 hours of service. D. Denied. Plaintiff incorporates its answer to paragraph 31 by reference. Moreover, Plaintiff acted prudently andwith requisite skill at all times. ',,",-c_1 -~ " " .LJ ..I ",-,-,' ".~)-;~ WHEREFORE, Plaintiff requests judgment in its favor and against Defendant together with interest and costs of suit as set forth in Plaintiff s complaint. Respectfully submitted, O'BRIEN, BARIC & SCHERE David A. Baric, Esquire !.D. # 44853 17 West South Street Carlisle, P A 17013 (717) 249-6873 Attorney for Plaintiff dab.dir/litigationlewinglprochaskafreply.new .",""",'~-~" . ~ , 0_1 ~, '-'".~*'-- VERIFICATION I verify that the statements made in the foregoing Reply To New Matter are true and correct to the best of my knowledge, information and belief. This verification is signed by David A. Baric, Esquire, Attorney for Plaintiff and is based upon the statements provided by Plaintiff, as well as documents reviewed by the undersigned as attorney for Plaintiff. This verification will be substituted and ratified by a verification signed by the Plaintiff who is presently unavailable to sign said verification. I undersigned that false statements herein are made subject to penalties of 18 Pa.C.S. 14904, relating '" ~ ""'"''''''~ '" ~p ~ Dated: C! f/fl David A. Baric, Esquire _M_.;>"'",,''''' ~, --. " '.1' ,- I~ ., '" il!iilll(' -- 'lllL.;;jj;_ CERTIFICATE OF SERVICE I hereby certify that on May q ,2001, I, David A. Baric, Esquire of O'Brien, Baric & Scherer, did serve a copy of the Reply To New Matter, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Robert Saidis, Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, Pennsylvania 17013 David A. Baric, Esquire -', -~ 'lJ~ ~.~"--.'_",I_ -""",~,,,,,_-, """,,- ,"-"c,-"-",''''--'''''''''''---~~--"''''''''!o -,'~,., ; -~~! . , , EWING & SHELLY, INC., d/b/a CARLISLE CATERING, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA NO. 2001-1079 CIVIL TERM V. CIVIL ACTION-LAW WILLIAM PROCHASKA, Defendant. PRAECIPE TO ATTACH SUBSTITUTE VERIFICATION Please attach the following Substitute Verification to the Reply To New Matter filed in this matter on May 10,2001. Respectfully submitted, O'BRIEN, BARIC & SCHERER ~a.{'~ ~~ David A. Baric, Esquire I.D.#44853 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Date: /'?'/IJ5 /tN dab.dir/litigation/ewingiprochaskalsubstitute. pra :i . ~ "~ '~""6_=' = ,"," ~--~ "~F_'~: .to r , VERIFICATION I, Linda M. Ewing, verify that the statements made in the foregoing Reply To New Matter are true and correct to the best of my knowledge, information and belief. I hereby ratify the verification previously supplied by my attorney, David A. Baric, Esquire and execute this verification as a substituted verification. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. g4904 relating to unsworn falsifications to authorities. Date:a ~~ _~_A.b;)<1)/ (~>rtL ~, Linda M...E\Ving (j 'I ~." I~ '''" _<<, ~,,~,_"'~ ~ '<" - ,~_ ~y".-,>-,<,~_" -'0.'-"-';,' , .. I CERTIFICATE OF SERVICE I hereby certify that on December 3, 2001, I, Jennifer S. Lindsay, secretary to David A. Baric, Esquire, did serve a copy of the Praecipe To Attach Substitute Verification, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Robert Saidis, Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, Pennsylvania 17013 1~~:Ii:d I 1 I' d_ V -"-'~IiiiIiii''"'"'''''';'- -~~I~~'- ""t.' ,'C.~"."w, H .,="'^ ,,~-~ _, ',,-, ~"-,Jiln- J ~;..--h '-'-"",,, 'I ~ ',~ ' ~ ~o.. " ~..' , _r~"_ .j _0' _._?'i ,_ '"'''~~ilii.j; "I " ,." .. ;p._,.cf..,.) ~I~ ~_l fn ''I ' <::_7_, J () ~ ,,- 6J~-:B .) ~f~:'- J -, .~~~j P~J'J ~~ C"? ~:r..;::) t"D "," -. 'II (j ::~ 5i -:.: -~ - ~~............ ~ . i _I ~ Ii<.~ - li\i'l~""'j' - ~1~""'~~lelII1Ni; IiW j /J fr of ..,g iJlM-/... '1, -t::;/'e..-. In The Court of Co~on Pleas of ~- IA!jU,41f1 /l.eOtl+4S.K4 . ) ) ) ) ) ) ) ~ Cumberland County, Pennsylvania :-To. 6l&tJ/, - 107'1 19 OaTH We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Consti~tion of this Common- wealth and that we will discharge the duties 0" ur office with fidelity. AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awar~ed, they shall be separately stated.) (J4/bt /6.1 .&~ CJa HN{J iN '[7J tJ.I!.tb;:JI2,h--a M~ 14J!#/X- -tit' "'J'tV<!) A--Qil;~ P/j 1/ HL t(<. flutJt.I'T1 P!$ IJ->V 1) /46.47,vJ:r /M?F ~7 . iN iW I}-yM7./NT -1 J..3rftI fl, - , Arbitrator, dissents. (Insert name if applicable. ) Date of Rearing: l..zk/ol 10'2 j..,,-/CJI :;t:'fJ( ;;.u.an Lv, ..l SlY. Date of Award: NOTICE OF ENTRY OF AWARD Now, the 6~ day of ~ , D,;2I)tJI, at 1/:30, L.a., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. C, Ju; 12. R~, n..-- . ~ r~thonotary c..~ Deputy Arbitrators' compensation to be paid upon appeal: $ ;L9b,ui) By: ~lf.l:!ljj:liMW:i*;;>_""h/"!r't~ill.'''<i!i~~'lii@+_'ill."<l):t,,,--4e+;;.\-j;t,,-,,,,;,'_';'C-"';";-;O"!!,b~,,;;,",li"".2i:l;'j;,6-'ltO~I$Mi*,_.JtD,a 1( ~_../ -g. AJ S,oi Cu, )J Urvuf-' - ~ ~ GuMXr t /J.djO;L ~ ltL~~~ ~(/~,G- f~ S-',I'.,', Ilf C~,,,~_ ~ L~,_~~" _,~,~ ,<_'~_ ~_, _"_ ___, _~~ ~_,,, _ ,0 , ~""-M~ I.L o.r. bI y, UJiib,;,_ I ~~ . _ N ".,..~ _ ~__ _ _, -"""'~ tj--' (') ~ Q3-E1~ ts~~~ ~C~- ,-' ~E~ c z =< - - '-' ~~ ::::J CT1 , , ; "C' ~, ,'-, -_: :.+,' c....) (,) :;:! j;] -< co -,-'~ ,,~;~,~-.,," ~'"'_,'_~'-,c ,;~,,";~ J ',._',-", , -,"; ~,- ,. -:;-..~ cr', ,:;" .:"r -" "- - . EWING & SHELLY, INC., d/b/a CARLISLE CATERING, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA NO, 2001-1079 CIVIL TERM V. CIVIL ACTION-LAW WILLIAM PROCHASKA, Defendant. PRAECIPE TO SATISFY TO THE PROTHONOTARY: Kindly mark the Award entered in the above-captioned matter by the Board Of Arbitrators on December 5, 2001 as satisfied. Respectfully submitted, DATE: 1...- 16(tJ7-- ?5:;;;rrR David A. Baric, Esquire LD. # 44853 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 dab.dirlIitigationlewing/prochaskalpraecipe.sat ,.,,~-- > "~- -~. - ="" ","~~',". ,-" ;-~'"'~'I.'''''~'''' ---_,~"__~,,"'_~__"".__~'"'.'''-,;'''',. ".-~/~ ,','-. ",' "'; """~' j~~! ~ ,. CERTIFICATE OF SERVICE I hereby certify that on February S, 2002, I, David A. Baric, Esquire of O'Brien, Baric & Scherer, did serve a copy of the Praecipe To Satisfy, by first class U,S. mail, postage prepaid, to the party listed below, as follows: Robert Saidis, Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, Pennsylvania 17013 ~#tfJt David A. Baric, Esquire Ii I 1 II \\ !i !i i 1 ! II ~';"'~~~~~i1!~~~B'hwll!!!t~~l1i.~_OOl*__' "~'~iidiii"""'-'-; ""I&.. ~ , -- ,E1, 'C',,~_"",' f,'_'_~__,~,~ .,,_','''''"'"' ,,<,_ f-, -"-'"-"'."_I~,""_ ;-'"" ,,____, " ~,. .-, " ~ -- -".~-- ';.. t 0 c..:-. r., C N :c.-t-i ~ -" ~~;~ r'1 Z:.-::~ CD ze- I (J:\ '"~ , ~_.l .<~-- r:::::c'~, -, ---. J';:li -'-'-' ,':'.-.,.--, >c j'.) ,,=) 7": c;:! ::;t ,;- \0 =< .." ~~ ~