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HomeMy WebLinkAbout07-1671IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA FRY COMMUNICATIONS, INC. 800 West Church Road Mechanicsburg, PA 17055 Plaintiff, V. DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS 1245 Airport Rd Lakewood NJ 08701 Defendant. NO. CIVIL TERM NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after the complaint and notice 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 maybe entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)- 249-3166 307021 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA FRY COMMUNICATIONS, INC. 800 West Church Road Mechanicsburg, PA 17055 Plaintiff, V. DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS 1245 Airport Rd Lakewood NJ 08701 Defendant. COMPLAINT NO. ©'I - /6 1 / d--J / zc., CIVIL TERM Plaintiff Fry Communications, Inc., by and through its undersigned attorneys, commences this civil action to recover compensation for printing services that Plaintiff performed for Defendant pursuant to a written contract (the "Contract") and avers as follows: PARTIES 1. Plaintiff, Fry Communications, Inc. ("Fry") is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with a place of business at 800 West Church Road, Mechanicsburg, Pennsylvania 17055. Fry is engaged in the business of commercial printing. 30702_1 2. Defendant Department 77, Inc. d/b/a Hollywood Gadgets ("Dept. 77") is a corporation organized and existing under the laws of the State of Nevada, with a place of business at 1245 Airport Road, Lakewood, New Jersey 08701. VENUE AND JURISDICTION 3. Venue is proper in this Court pursuant to Pa. R. Civ. P. 2179(a)(3) and Pa. R. Civ. P. 2179(a)(4) in that this action is brought against a corporation, and Cumberland County is the county where the cause of action arose, and also is the county where the transaction or occurrence took place out of which the cause of action arose. Specifically, and as set forth more fully below: a. Fry extended to Dept. 77 an offer of credit in Cumberland County and agreed to extend credit to Dept. 77 in Cumberland County; b. The Contract between Fry and Dept. 77, a true and correct copy of which is attached hereto as Exhibit "A", was entered into in Cumberland County; C. Dept. 77's order for printing services was accepted by Fry in Cumberland County; d. All services performed by Fry under the Contract were performed in Cumberland County at Fry's facilities in Mechanicsburg, Pennsylvania; e. Title to the finished printed materials passed to Dept. 77 in Cumberland County when Fry delivered the materials to the United States Postal Service at Fry's facilities in Mechanicsburg, Pennsylvania; and f. Fry's invoice to Dept. 77 was generated in Cumberland County, and called for payment to be delivered to Fry in Cumberland County. 30702_1 4. The Contract provides that the Contract is made pursuant to the laws of the Commonwealth of Pennsylvania and that Dept. 77 consents to jurisdiction of the courts in the Commonwealth of Pennsylvania. FACTUAL ALLEGATIONS 5. On or about October 5, 2006, Dept. 77 applied to Fry for a line of credit for printing services to be performed by Fry for Dept. 77. 6. On October 11, 2006, Fry extended to Dept. 77 a $40,000.00 line of credit with net 30-day terms. (See Exhibit "B" hereto). On October 16, 2006, Fry amended Dept. 77's credit line to $80,000.00 with net 30-day terms (See Exhibit "C" hereto). 7. Fry performed printing services for Dept. 77 on the open account of Dept. 77, pursuant to the Contract. 8. On or about November 18, 2006, Fry sent to Dept. 77 its invoice number 221334 in the amount of $55,613.41 (the "Invoice"), for printing services that Fry performed for Dept. 77 relating to the "Hollywood Gadgets" catalog. A true and correct copy of the Invoice is attached hereto as Exhibit "D". 9. The Contract provides that payment of the Invoice was due and payable thirty (30) days from the date of the Invoice (i.e., "net 30-days") 10. Payment of the Invoice balance, totaling $55,613.41, is past due (hereinafter the "Past Due Balance"). 11. Fry has demanded that Dept. 77 pay the Past Due Balance, but Dept. 77 has refused to pay the Past Due Balance. 307021 12. The payment terms between Fry and Dept. 77 provide that a "finance charge of one and a half (1.5) percent per month (eighteen (18) percent per annum) will be charged on all past due balances until paid." See Exhibit A. 13. As of March 26, 2007, finance charges have accrued on the Past Due Balance in the amount of $2659.74. 14. Finance charges on the Past Due Balance continue to accrue at the rate of $27.42 per day. COUNT I - BREACH OF CONTRACT 15. Fry incorporates herein Paragraphs 1 through 14 above as though fully set forth. 16. Fry has fully performed its obligations to Dept. 77 under the Contract and satisfied all conditions precedent to Dept. 77's obligation to pay for Fry's printing services as set forth in the Invoice. 17. Dept. 77's refusal to pay the Past Due Balance constitutes a breach of the Contract. 18. Dept. 77's breach of contract has damaged Fry. WHEREFORE, Fry demands judgment against Dept. 77 in the amount of $55,613.41, plus finance charges at the Contract rate accruing to the date of judgment. COUNT II - UNJUST ENRICHMENT 19. Fry incorporates herein paragraphs 1 through 18 as though fully set forth. 20. By performing printing services for Dept. 77 at Dept. 77's request, Fry has conferred a benefit on Dept. 77. 307021 21. It would be unjust for Dept. 77 to retain the benefit of Fry's printing services without compensating Fry for those services. WHEREFORE, Fry demands judgment against Dept. 77 in the amount of $55,613.41, plus interest accruing to the date of judgment. JURY TRIAL DEMANDED Fry hereby demands a trial by jury on all issues so triable. WHEREFORE, Fry demands judgment against Dept. 77 in the amount of $55,613.41, plus finance charges at the Contract rate accruing to the date of judgment, plus costs of suit, and any other relief to which the Court deems that Plaintiff may be entitled. Date: March 26, 2007 Tho as O. Williams (ID No. 6798 <twi lliams@reageradlerpc. com> REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Robert A. Swift (ID No. 17766) <rswift@kohnswift. com> Craig W. Hillwig (ID No. 70107) <chillwig@kohnswift.com> KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 (215) 238-1700 Attorneys for Plaintiff Fry Communications, Inc. 307021 E X?;f A 11/09/2006 17:04 908-806-7340 PRINT PACK PROMO PAGE 01 11/09/2006 16:10 . 73235451.41 DE=PT 77 INC PAGE 92/03 11/09/2006; 16:40 38$-306°7380 PRINT PACK, PAW- 93 BPI l eyuastsa YYl Ick Walz;a°C c ?o) $48-aG25 09A ?-7: 8, r v7 Pfos$0VA00`t (732) 30XiDC 0 ?coQO?arQ.nooa?.', j I?ai'leaget G ?h 2% Pyt?s?r: :3? Pages SuD liad•ordw form id n Sim "i-3f8 3Q-7?$ , t Bleeds . Preptairi riq plater8!oi?} lid ft, e- Them w411 be additional if ?i? naPP Atl other?np r lend VMS ?WM be ad?lto?aat. no. l doas'u iaG de pooAa4v the o yttkt *r ei* in me t u, x ' • . Pevo?t ? lldake ua+??et oflftligia?! bltte3incot?„ , i U?Ies 'itietru' ' 6mms0. In writin& by tiro r, w31i tnoe ppo to z to j r tbac a:+o'Q. °?a "??afast?dr?vl"+? 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AN 'd thi P!krs, J1?art?au, temts >hd ndrtio+ts as alSor?rrt hs» rbare h(rr?'by vdFnvw,ledyrd a?a accepted. pct epd fa' accepted for FRY COMMunabeATIONS, lfVC. eY 'OY WtA otAC[ep 'Date c(AgcWWcO TERMS AND CONDITIONS Payment: Unless otherwise specified, the terms are Net Thirty (30) Days, due and payable thirty (30) days from the date of invoice covering the work authorized by this con- tract. A finance charge of one and a half (1.5) percent per month (eighteen (18) percent per annum) will be charged on all past due balances until paid. It is understood and agreed that time is of the essence in this contract, and if the Customer defaults in the pay- ment of any part hereof, the entire amount of the contract shall immediately become due and payable without notice at the option of Printer, together with all costs of collection, including reasonable attorney's fees if collected by law or through an attorney. In the event Customer defaults in making any payment under this or any other contract currently being performed for Customer by Printer, Printer may suspend performance under this contract. PRODUCTION: a) Proofs: All proofs are to be returned to Printer by Customer, with corrections, if any, noted and marked "O.K, with corrections," and signed by properly authorized person. The Printer is not responsible for errors in work printed in accordance with Customer's O.K. In the absence of signed O.K., the return of proof shall be sufficient authorization for the Printer to print, unless a revised proof is requested. b) Supplied Paper: Customer is responsible for payment for any paper which Fry has stocked for Customer's publication, including paper remaining on hand as the result of Publisher changing printers, discontinuing publication, or changing paper requirements. The Printer reserves the right to substitute comparable paper of a manufacturer different than that designated unless "No Substitution" is specified. c) Furnished Paper: Customer furnished paper must be of a quality suitable for efficient and economical production. Sufficient additional paper as specified by the Printer must be furnished to allow for normal spoilage. If the Printer uses less paper than specified to pro- duce the order, the customer may, at its own expense, arrange to have the remaining paper shipped to a customer designated destination within 15 days of completion of the order. After which time the Printer may retain or dispose of any paper remaining. The Printer reserves the right to reject any furnished paper which the Printer determines is not suitable to run on its presses. d) Overruns and Underruns: A variation in the ordered quantity as specified on this reverse side shall constitute acceptable delivery - price to be adjusted accordingly, e) Production Schedule: Upon receipt of a signed contract, a detailed Production Schedule will be mutually agreed upon in writing between the Customer and the Printer for all work to be performed on this contract. The prices in this contract are based upon full compliance with said schedule and any deviation from the agreed upon schedule on the part of the Customer may result in a revised delivery date or additional charges for downtime or over-time incurred by Printer due to said deviation from the schedule. In any case, no additional work will be performed by the Printer until such revised schedule and/or pricing is approved by the Customer. POSTAGE AND FREIGHT: Customer shall pay Printer in advance for all postage. As a courtesy, Printer will arrange for common carrier shipments on behalf of Customer nam- ing the Customer as shipper, such shipments to be collect or prepaid by Customer absent agreement to the contrary. Customer releases Printer from any liability for non-delivery or late delivery of printed material. PAPER STORAGE CHARGES: The Printer will provide storage for the Customer's paper subject to the following charges. Rolls held in excess of the Customer's average require- ment for two months will incur a charge of S.57 per Cwt. (minimum $50) per month. Skids of sheeted stock held in excess of the Customer's average requirement for two months will incur a charge of $15.00 per skid (minimum $50) per month. The average for two months will be determined by averaging previous months' activity, going back 12 months. Paper that has been held for six months with no activity will incur a charge of S.57 per Cwt. (minimum $50) per month. However, if a Customer prints less frequently than four times a year, the Printer will not charge storage for 125% of the paper require- ment for the calendar month before and during the Customer's month of production and will not charge storage for 25% of the paper requirement for the calendar month after his production. All charges will be based on the quantity of paper on hand the first day of the month. If storage charges remain unpaid for 90 days, Printer shall have the right to demand that Customer remove the paper from Printer's storage. If Customer fails to remove the paper after 20 days' notice, Printer may sell the paper and remit the proceeds to Customer less storage costs and costs of sale. Printer shall also have the right to pur- chase the paper for its own account at market rates. MATERIAL STORAGE: Storage of finished goods, inserts, covers, cartons, and all other material will be free for up to 30 days prior to, and 30 days after, the originally scheduled print date. Finished goods and other material received earlier than 30 days prior to, or remaining in storage 30 days after, the originally scheduled print date will be charged for storage at a rate of $21.55 per skid or pallet, per month (or portion thereof). Skids may not contain more than 2,000 pounds of material. sonable variation in color between proofs and finished product shall constitute acceptable work. Complaints, Customer shall submit claim of an alleged Printer error or defective work to his/her CSAA. The CSAA shall enter the appropriate information regarding the claim Into the Customer Complaint System. Sample(s) of the error or defective work also shall be sub- mitted to the CSAA for review by Printer. All claims and samples must be submitted to Printer within 60 days of the invoice date. Printer shall research the claim and issue an offi- cial response in a timely manner. TITLE: Title and risk of loss or damage to finished and semi-finished Work will pass to Customer upon the earlier of delivery to the United States Postal Service or to carrier (F.O.B.: Fry's shipping dock), or delivery into storage, regardless of whether the transport medium or storage facilities are owned and/or operated by us and regardless of whether we charge you for storage. SALES TAX: Customer may be subject to and Printer may be obligated by law to collect sales tax on printed matter which is delivered within the state in which it was printed. Unless otherwise stated the prices quoted do not include sales tax. ALTERATIONS: No handwritten alterations to the typewritten portions of this agreement are valid unless initialed by Printer and Customer. Any changes to the original specifications of this agreement after acceptance by Printer will be billed as extra charges at Printer's usual rates. INDEMNITY: Customer will indemnify, and agrees to save harmless, the Printer, of and from any and all damages, losses, fees and costs which the Printer may incur, sustain, or suffer, as the result of any claim, charge, or suit based upon any allegations of libel, obscen- ity, unlawful matter, infringement for misuse of copy, pictures, portraits, photographs, or other material, published by the Customer, and set, plated, printed or bound by the Printer under the terms of this Agreement, it being understood and acknowledged that, the Printer has no control over the same; and any suppressions, impounding or seizure of print- ed matter, because of libelous, obscene or unlawful matter, infringement of misuse, shall not release the Customer from liability to the Printer for monies to be paid under the terms of this Agreement. LIABILITY: The Printer shall not be liable for non-performance resulting from wars, restric- tions, national emergency, strikes, fires, floods, or other casualties, riots, insurrections, acci- dents, delays or accidents in transportation, or acts or defaults of subcontractor, or suppli- ers or to obtain power or transportation facilities, rules and restrictions by law or govern- ment agency during periods of national emergency, and other causes beyond the Printer's control, whether or not the cause be of a class or character similar to those heretofore enu- merated. THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN ARE THE SOLE REPRE- SENTATIONS AND WARRANTIES OF PRINTER, WHICH DISCLAIMS ANY AND ALL OTHER EXPRESSED OR IMPLIED WARRANTIES INCLUDING WARRANTIES OF MER- CHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, PRINTER'S LIABILITY FOR ALL CLAIMS ARISING HEREUNDER INCLUDING NEGLIGENCE OR BREACH OF WAR- RANTY SHALL BE LIMITED TO CREDIT FOR AMOUNTS PAID TO PRINTER FOR DEFEC- TIVE WORK AND IN NO EVENT WILL PRINTER BE LIABLE FOR Ina OF REVENUE OR ANY OTHER RESULTING OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUBSEQUENT PRINTING JOBS: To facilitate and expedite the parties' dealings on future printing jobs, it is agreed that the terms set forth on this page shall apply to all future print- ing jobs unless amended or contradicted by a writing signed by both parties. QUALITY OF WORK: The Printer will use reasonable efforts to reproduce copy faithful to materials furnished by Customer. Normal shrinkage or expansion of paper and rea- All of the prices, specifications, terms and conditions as shown herein are hereby acknowledged and accepted. Accepted for By Title Accepted for FRY COMMUNICATIONS, INC. By Title MISCELLANEOUS: The Printer reserves the right to perform any and all work described in this contract in its own plant or in the plant of any affiliated company or to subcontract in whole or in part. No addendum to or amendment in the provisions of this Agreement shall be effective or binding upon a party hereto unless embodied in a written instrument executed on behalf of such party by an authorized representative. The Production Schedule, when properly executed as herein provided, and any attach- ment(s) herein referred to an attached hereto constitute a part of this contract This contract contains the entire Agreement of the parties and no inducements, repre- sentations, promises, agreements, or understandings, oral or in writing between the par- ties, not embodied herein or subsequently made a part of hereof by a properly executed addendum or amendment hereto as herein provided, shall be of any force or effect. Notwithstanding the foregoing, and recognizing both the frequency of change orders and press deadlines, Printer's written change order sent to Customer shall amend the terms of the specific job it is pertinent to without the countersignature of Customer, provided that Customer does not controvert the change order within 24 hours of receipt thereof by mail or fax. This Agreement is made pursuant to and shall be governed by the laws of the mmormealth of Pennsylvania, and Customs consents to jurisdiction of the courts thereof. Date of Acceptance Date of Acceptance Fxk,b)-? B" I FRY PusuCAT1ON, GITALOG AND BOOK PRINTING SPECIAUSTS October 11, 2006 Dept. 77, Inc. DBA Hollywood Gadgets Attn: Carol Levin 1245 Airport Rd. Lakewood, N7 08701 Dear Ms. Levin, I am pleased to extend to your company a credit line of $40,000.00 with Net 30- Day Terms. If any jobs exceed $40,000.00, we will require a prepayment with material of any amount over $40,000.00. If you anticipate exceeding this limit or foresee problems in meeting our terms, please call. It is important that new customers understand that our prices are based on prompt payment and agree to the terms as outlined in this letter. Approximately one week prior to an invoice becoming due, we call new customers to confirm that our invoices have been received and that they are in process for payment. We hope that you and your staff will use this opportunity to present questions or suggestions concerning our billing. Sincerely, Mary Roberts Controller MR/dlm CC: G. Shughart, VP Sales . FRY COMMUNICATIONS, INC. 800 West Church- Road, Mechanicsburg, PA 17055 Telephone: (717} 766-021 1 Toll-Free: (800) 334-1429 Fax: (717) 691-0341 Website: http://wwwfrycomm.com Y)?6Jf FRY PuBUCATION, CATALOG AND BOOK PRINTING SPECIALISTS October 16, 2006 Dept. 77, Inc. DBA Hollywood Gadgets Attn: Carol Levin 1245 Airport Rd. Lakewood, NJ 08701 Dear Ms. White, After reviewing additional trade information, I am pleased to amend your credit line to $80,000.00 with Net 30-Day Terms. If any jobs exceed $80,000.00, we will require a prepayment with material of any amount over $80,000.00. If you anticipate exceeding this limit or foresee problems in meeting our terms, please call. It is important that new customers understand that our prices are based on prompt payment and agree to the terms as outlined in this letter. Approximately one week prior to an invoice becoming due, we call new customers to confirm that our invoices have been received and that they are in process for payment. We hope that you and your staff will use this opportunity to present questions or suggestions concerning our billing. Sincerely, V&? 64e Mary Roberts Controller MR/dlm CC: G. Shughart, Sr.VP Sales Steve Grande, VP Sales FRY COMMUNICATIONS, INC. 800 West Church Road, Mechanicsburg, PA 17055 Telephone: (717) 766-0211 Toll-Free: (800) 334-1429 Fax: (717) 691-0341 Website: http://www.frycomm.com t , ?)?; ? D ?-x FRY Publication, Catalog and Rook Printing Specialist DEPT 77 INC ATTN: SUE WHITE 1245 AIRPORT RD LAKEWOOD, NJ 08701 IMPORTANT: PLEASE RETURN ONE COPY WITH REMITTANC 30 HOLLYWOOD GADGETS QUOTE 5290010 ORDER QTY 300134 32 PAGES, 300,598 COPIES UNIT DESCRIPTION 1 MANUFACTURE 32 PGS 1 ADDITIONAL M'S PAPER COST: j 1 8PP - 45# CTD @ $48,00/CWT 1 ADDITIONAL M'S 1 24PP - 40# CTD ® $48.00/CWT 1 ADDITIONAL M'S DATA PROCESSING CHARGES: 1 PRESORT 1 ZIP + 4 ADDITIONAL ELECTRONIC PREPRESS: 9 REVISED FILE HANDLING 1 EPP TIME WORK 1 UPS BAG DROP SHIPPING CHARGES: 1 DROP SHIPPING FREIGHT 1 DROP SHIPPING ADMINISTRATION FEE TOTAL MISC FREIGHT 1 FREIGHT CHARGES 061121-0611 THE FINANCE CHARGE IS COMPUTED BY A PERIODIC RATE OF 1 .50 % PER 30 DAYS (MINIMUM OF 50 CENTS) WHICH IS AN ANNUAL PERCENTAGE RATE r114 A nn of Anno mr r...,..? . , ,? CUSTOMER NO. REFERENCE NO DATE INVOICE NO. VPAGE ` 0330957 W 1/18/06 221334 1 JOB NO. TERMS 1/ 4881 NET 30 DAYS AMOUNT PAID S SETUP QUANTITY RUN/1000 27325.000 598 54,5600 6391.000 16669.000 598 53,0800 598 20.3500 300114 3.2600 300114 1.5000 9.000 67.500 1.740 2776.600 770.000 26.490 INVOICE TOTAL EXTENDED 27,325.00 32.63 6,391.00 31.74 16,669.00 12.17 978.37 450.17 81.00 67.50 1.74 2,776.60 770.00 26.49 $55,613.41 FRY COMMUNICATIONS, INC. 800 West Church Road, Mechanicsburg, PA 17055 Phone: (717) 766-0211 Fed. ID. 23-1885979 PLEASE PAY THIS AMOUNT AL ORIGINAL INVOICE i VERIFICATION I, Mazy Roberts, hereby state I am the Secretary and Controller for Fry Communications, Inc. and am authorized to make this verification on its behalf. I have read the foregoing Complaint, and state that the facts set forth therein are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification to authorities. NlAry'Roberts Dated: March 26, 2007 30702 1 C7- R T 7 j I\) ti r `J ? 7 ^ 4 (Cl L ? Lee M. Herman, Esquire, P.C. BY: Lee M. Herman, Esquire I.D. No. 27570 426-428 East Baltimore Pike, P.O. Box 2090 Media, PA 19063 (610) 891-6500; Fax (610) 891-9080 Attorney for Defendant Our File No.: 079956 FRY COMMUNICATIONS, INC 800 West Church Road Mechanicsburg, PA 17055 Court of Common Pleas Cumberland County Plaintiff VS. No. 07-1671 Civil Term DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS 1245 Airport Road Lakewood, NJ 08701 Defendant. ENTRY OF APPEARANCE Kindly enter my appearance as attorney for Defendant, Department 77, Inc. d/b/a Hollywood Gadgets, in the above captioned matter. LEE M. HERMAN, ESQUIRE, P.C. By: 4-;X- Lee M. Herman, Esquire C o° ? _ r n r-? `7M - _ rry -? Q "? Lee M. Herman, Esquire, P.C. BY: Lee M. Herman, Esquire I.D. No. 27570 426-428 East Baltimore Pike, P.O. Box 2090 Media, PA 19063 (610) 891-6500; Fax (610) 891-9080 Attorney for Defendant Our File No.: 079956 FRY COMMUNICATIONS, INC 800 West Church Road Mechanicsburg, PA 17055 VS. DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS 1245 Airport Road Lakewood, NJ 08701 Plaintiff, Defendant. Court of Common Pleas Cumberland County No. 07-1671 Civil Term DEFEDANT'S ANSWER, NEW MATTER AND COUNTERCLAIM TO PLAINTIFF'S COMPLAINT Defendant, Department 77, Inc. d/b/a Hollywood Gadgets (hereinafter "Defendant"), by and through his attorney, Lee M. Herman, Esquire, P.C., hereby responds to Plaintiff's, Fry Communications, Inc. (hereinafter " Defendant"), Complaint, and in opposition thereto, avers the following: Denied. Defendant has no knowledge or information concerning the corporate status of the Plaintiff. Strict proof is demanded at the time of trial. 2. Admitted. 3. Admitted in part, Denied in part. Defendant admits the existence of the Pa.R.Civ.P quoted in allegation no. 2. Defendant denies the other allegations contained in this paragraph as a conclusion of law to which no response is required. Moreover, Defendant denies the specifically allegations, as set fore more fully below: a. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 3.a. Strict proof is demanded at the time of trial. b. Admitted, in so far as the document speaks for itself. Denied, in so far as the allegation contains a conclusion of law, to which no responsive pleading is required. c. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 3.c. Strict proof is demanded at the time of trial. d. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 3.d. Strict proof is demanded at the time of trial. e. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 3.e. Strict proof is demanded at the time of trial. f. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph If Strict proof is demanded at the time of trial. 4. Admitted, in so far as the documents speak for themselves. 5. Admitted. 6. Admitted, in so far as the documents speak for themselves. 7. Admitted in part; denied in part. It is admitted that Plaintiff performed some services for Defendant it is denied that such were those required. Specifically, the services provided were defective and not in compliance with Plaintiff's contractual obligations or industry standards. The services were of such a deficient quality that Defendant suffered enormous losses as a result of Plaintiff's failure to complete their part of the bargain. Strict proof is demanded at the time of trial. 8. Admitted. 9. Admitted, in so far as the document speaks for itself. 10. Admitted in part; denied in part. It is admitted that the Invoice balance is as stated; it is denied that the balance is owed. 11. Admitted. 12. Admitted, in so far as the document speaks for itself. 13. Denied. It is specifically denied that finance charges are due and owing, or that Plaintiff is entitled to payment of the Past Due Balance, due to Plaintiff s failure to comply with its contract terms and the standards of the industry. Strict proof is demanded at the time of trial. 14. Denied for the reasons set forth in Defendant's answer to Paragraph 13 of the Complaint, which is incorporated by reference herein. COUNTI 15. Defendant re-alleges each and every answer to Paragraphs 1 through 14 of the Complaint as is more set forth herein. 16. Denied. It is specifically denied that the Plaintiff has fully performed its obligations to Defendant. To the contrary, more than 40% of the catalogs were not delivered and the other catalogs and pallets were improperly wrapped by Plaintiff and as such Defendant could not use those catalogs. 17. Denied. The averments in this paragraph are conclusion of law to which no response is required. Strict proof is demanded at the time of the trial. 18. Denied. The averments in this paragraph are conclusion of law to which no response is required. Strict proof is demanded at the time of the trial. Moreover, to the contrary, Plaintiff's breach has caused Defendant substantial damages. WHEREFORE, Defendant demands judgment in its favor, together with costs and attorney's fees. COUNT II 19. Defendant re-alleges each and every answer to Paragraphs 1 through 19 of the Complaint as is more set forth herein. 20. Denied. The averments in this paragraph are conclusion of law to which no response is required. Strict proof is demanded at the time of the trial. To the contrary, Defendant received no benefit and has sustained significant damages as a result of Plaintiff's failure to comply with its contract and industry standards. 21. Denied. The averments in this paragraph are conclusion of law to which no response is required. Strict proof is demanded at the time of the trial. To the contrary, Plaintiff's failure to comply with the contract and industry standards precludes its invocation of the equitable doctrine of unjust enrichment. WHEREFORE, Defendant demands judgment in its favor, together with costs and attorney's fees. NEW MATTER 22. Plaintiff s Complaint fails to set forth a claim for which relief may be granted. 23. Any and all damages alleged to have been sustained by Plaintiff were caused by Plaintiff, and were in no way attributable to act or failure to act on the part of the Defendant. 24. Plaintiff s claims are barred by the equitable doctrine of laches. 25. Plaintiff s claims are barred by the doctrine of waiver and estoppel. 26. Defendant pleads the defense of failure of consideration. COUNTERCLAIM 27. Defendant incorporates by reference the previous paragraphs 1 through 26 of its Answer and New Matter, as if fully set forth at length herein. 28. The catalogue order placed by Defendant was a part of an extensive marketing plan by which Defendant sought to sell its product line. 29. In connection with the marketing of the products contained in its catalogue, Defendant expended significant resources in obtaining the merchandise depicted, as well as in designing the catalogue and creating an order fulfillment system. 30. Plaintiff had a duty to deliver bundles of Defendant's catalogue for shipment through the United States Postal Service. 31. Despite its contractual duties to produce a product sufficient to be successfully handled by the United States Postal Service, the bundles of catalogues delivered by Plaintiff to the United States Postal Service were packaged in shrinkwrap deemed insufficient in strength to withstand normal transit and handling without breakage. 32. Forty-Five percent of the bundles delivered by Plaintiff to the United States Postal Service ripped during its processing, causing a delay of delivery of some of the catalogues, along with the non delivery of others. 33. The failure of Plaintiff to provide bundle packaging sufficient to withstand normal processing by the United States Postal Service constitutes a break of the parties' contract. 34. By reason of such breach, Defendant has sustained damages in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Defendant, Department 77, Inc. d/b/a Hollywood Gadgets, Respectfully request that this Honorable Court enter a judgment in its favor, in an amount in excess of Fifty Thousand Dollars ($50,000.00) to be determined at the trial of this matter with any additional relief the Court deems appropriate. Respectfully submitted, Lee M. Herman, Esquire, P.C. BY: 17-? Lee . Herman, Esquire Attorney for Defendant, Department 77, Inc. d/b/a Hollywood Gadgets VERIFICATION I, Lee M. Herman, being the Attorney for Defendant, verify the facts set forth herein are true and correct to the best of my knowledge, information and belief. I take this verification subject to the penalties for unsworn falsification to authorities of 18 Pa.C.S.A. § 4904. 10- Lee erman, Esquire Date: May 31, 2007 Lee M. Herman, Esquire, P.C. BY: Lee M. Herman, Esquire I.D. No. 27570 426-428 East Baltimore Pike, P.O. Box 2090 Media, PA 19063 (610) 891-6500; Fax (610) 891-9080 Attorney for Defendant Our File No.: 079956 FRY COMMUNICATIONS, INC 800 West Church Road Mechanicsburg, PA 17055 VS. DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS 1245 Airport Road Lakewood, NJ 08701 Plaintiff, Defendant. Court of Common Pleas Cumberland County No. 07-1671 Civil Term CERTIFICATE OF SERVICE I certify that on May 31, 2007, I forwarded a copy of the within Answer, New Matter and Counterclaim and Entry of Appearance by U.S. Mail, postage prepaid to: Thomas O. Williams, Esquire Reager& Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Robert A. Swift, Esquire Kohn, Swift& Graf, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 Lee M. squire, P.C. BY: TV Lee M. Herman, esquire 0 0 Fri -T, :rt n CD C V IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA FRY COMMUNICATIONS, INC. Plaintiff, V. CIVIL TERM NO. 07-1671 DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS Defendant. PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM Plaintiff, by its attorneys, and pursuant to Rule 1017 of the Pennsylvania Rules of Civil Procedure, replies to Defendant's New Matter and Counterclaim: REPLY TO NEW MATTER 22. Denied. Paragraph 22 states a legal conclusion to which no response is required. 23. Denied. Paragraph 23 states a legal conclusion to which no response is required. Plaintiff specifically denies that Plaintiff's damages were caused by Plaintiff. 24. Denied. Paragraph 24 states a legal conclusion to which no response is required. 25. Denied. Paragraph 25 states a legal conclusion to which no response is required. 26. Denied. Paragraph 26 states a legal conclusion to which no response is required. REPLY TO COUNTERCLAIM 27. Plaintiff incorporates herein paragraphs 1 through 21 of its Complaint, and paragraphs 22 through 26 above, as though fully set forth. 331601 28. Denied as stated. Plaintiff admits only that Defendant placed a catalog order with Plaintiff. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 28. 29. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 29. 30. Denied. Paragraph 30 states a legal conclusion to which no response is required. By way of further answer, Plaintiff's obligations are set forth in a written contract attached to the Complaint, which speaks for itself. 31. Denied as stated. Paragraph 31 states a legal conclusion to which no response is required. By way of further answer, Plaintiff's obligations are set forth in a written contract attached to the Complaint, which speaks for itself. Plaintiff admits only that Plaintiff delivered the catalogs that it produced for Defendant to the United States Postal Service, and that the catalogs were bundled and packaged using, among other materials, plastic shrink-wrap film. Plaintiff specifically denies that the packaging of the catalogs was insufficient. In all other respects, the allegations of this paragraph are denied. 32. Denied as stated. Plaintiff admits only that Plaintiff delivered the catalogs to the United States Postal Service. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the other allegations in Paragraph 32. 33. Denied. Paragraph 33 states a legal conclusion to which no response is required. Plaintiff specifically denies that Plaintiff the packaging of the catalogs was insufficient. 2 331601 11 34. Denied. Paragraph 34 states legal conclusions to which no response is required. Plaintiff specifically denies that Defendant has sustained damages. NEW MATTER 35. Plaintiff incorporates herein paragraphs 1 through 21 of its Complaint, and Paragraphs 22 through 34 above, as though fully set forth. 36. Defendant's counterclaim fails to state a claim upon which relief can be granted. 37. Defendant's counterclaim is barred by waiver. 38. Defendant's counterclaim is barred by Dated: June 18, 2007 33160_1 Thomas O. -Williams (ID No. 67987) REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Robert A. Swift (ID No. 17766) Craig W. Hillwig (ID No. 70107) KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 (215) 238-1700 Attorneys for Plaintiff Fry Communications, Inc. 3 VERIFICATION I, Mary Roberts, hereby state I am the Secretary and Controller for Fry Communications, Inc. and am authorized to make this verification on its behalf. I have read the foregoing Reply to Defendant's New Matter and Counterclaim, and state that the facts set forth therein are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unworn falsification to authorities. Mary Rob s Dated: June H, 2007 33160 1 4 CERTIFICATE OF SERVICE I, Thomas O. Willliams, hereby certify that a true and correct copy of the foregoing document to be served on the following counsel by first class mail, postage pre-paid: Lee Herman, Esquire 426-428 East Baltimore Pike, P.O. Box 2090 Media, PA 19063 Attorney for Defendant Dated: June 18, 2007 5 33160_1 C`? -? C:? .., F . (.__. "S` T? 1 i...s; ?? ?' _ _' '.7 ? Y'. .. _? v_,1 ?7.-• may: Val. , 14 LEE M. HERMAN, ESQUME, P.C. BY: Lee M. Herman, Esquire I.D. 27570 426 East Baltimore Pike, PO Box 2090 Media, PA 19063 (610) 891-6500fax (610) 891-9080 Attorney for Defendant, Department 77, Inc. dba Hollywood Gadgets FRYE COMMUNICATIONS, INC. Plaintiff, vs. DEPARTMENT 77, INC. dba HOLLYWOOD GADGETS Defendant. COURT OF COMMON PLEAS Cumberland County, Pennsylvania Docket No. 07-1671 DEFENDANT'S REPLY TO PLAINTIFF'S NEW MATTER TO DEFENDANT'S COUNTERCLAIM 35. Defendant incorporates by reference its responses to the Complaint and its counterclaim as if fully set forth herein. 36. Denied. This is a conclusion of law to which no responsive pleading is required. 37. Denied. This is a conclusion of law to which no responsive pleading is required. 38. Denied. This is a conclusion of law to which no responsive pleading is required. Respectfully submitted, LEE M. HERMAN, EsQuiRE, P.C. BY: 40-4r Lee M. Herman *- . 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been forwarded for service by First Class Mail, Postage Prepaid upon the following: Thomas O. Williams, Esq., Reager & Adler, P.C., 2331 Market Street, Camp Hill, Pennsylvania 17011, Robert A. Swift, Esq., Craig W. Hillwig, Esq., Kohn Swift & Graf, P.C., One South Broad Street, Suite 2100, Philadelphia, Pennsylvania 19107. J&-Q- Lee M. Herman June 26, 2007 - s G? r? IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA FRY COMMUNICATIONS, INC. Plaintiff, V. CIVIL TERM NO. 07-1671 DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS Defendant. PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPONSES AND FOR SANCTIONS Plaintiff, by its attorneys, and pursuant to Rule 4019 of the Pennsylvania Rules of Civil Procedure, hereby nwve the Court to compel Defendant to respond to Plaintiff's discovery requests and for sanctions, and in support thereof aver as follows: 1. No judge has ruled upon any other issue in this case. 2. On June 19, 2007, Plaintiff served on counsel for Defendant copies of Plaintiffs' First Set of Interrogatories Addressed to Defendant ("Interrogatories") and First Set of Requests for Production of Documents and Things ("Document Requests"). True and correct copies of the Interrogatories and Documents Requests are attached hereto as Exhibits A and B, respectively. 3. More than thirty (30) days have elapsed since the Interrogatories and Document Requests were served on counsel for Defendant. 4. Plaintiff has not received responses or objections to the Interrogatories and Document Requests. 343911 1 a 5. Plaintiff s counsel wrote a letter to Defendant's counsel on July 25, 2007, demanding that Defendant supply responses to the Interrogatories and Document Requests. (Exhibit Q. Plaintiff s counsel has not received any response to the letter. 6. Plaintiff s Interrogatories and Document Requests sought relevant and discoverable information concerning, inter alia, Defendant's purported affirmative defenses and counterclaim, and said discovery includes matters and documents solely within the knowledge and control of Defendant and is essential to Plaintiffs preparation for trial. See e.g. Interrogatories 1-16 and Document Request Nos. 8-22. WHEREFORE, pursuant to Pennsylvania Rule of Civil Procedure 4019, Plaintiff respectfully requests the Court to enter an Order: a. Compelling Defendant to provide Plaintiff with full and complete responses to the Interrogatories and Document Requests; b. Precluding Defendant from asserting any objections to the Interrogatories and Document Requests; and C. Striking out Defendant's New Matter and Counterclaim; d. Precluding Defendant from introducing into evidence any documents, things or testimony, relating to Defendant's contention that Plaintiff allegedly failed to properly package and deliver the catalogs that are the subject of the Complaint. Dated: August 1, 2007 34391_1 Thomas G. Williams (ID No. 67987) REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 2 Robert A. Swift (ID No. 17766) Craig W. Hillwig (ID No. 70107) KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 (215) 238-1700 Attorneys for Plaintiff Fry Communications, Inc. 343911 3 ) v ?? I ?/r4 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. FRY COMMUNICATIONS, INC. CIVIL TERM NO. 07-1671 DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS Defendant. PLAINTIFF'S FIRST SET OF INTERROGATORIES ADDRESSED TO DEFENDANT Plaintiff, by its attorneys, and pursuant to Rule 4005 of the Pennsylvania Rules of Civil Procedure, hereby propounds the following interrogatories upon Defendant. Defendant is requested to serve a written verified response to the interrogatories within 30 days of service. INSTRUCTIONS A. Each of the following interrogatories shall be answered separately and fully in writing. The interrogatory answers shall be signed and verified by the person making them. Objections, if any, shall be signed by the attorney making them. B. Where knowledge or information is requested, such request includes knowledge or information of the party's agents, employees, servants, accountants, attorneys (unless privileged), or other persons acting or purporting to act on behalf of the party to whom these interrogatories, are addressed. You must make inquiries of your agents, employees, etc., 1 whenever such inquiry is necessary to enable you to answer these interrogatories completely and accurately. C. If, after a reasonable and thorough investigation, you are unable to answer any interrogatory, or any part thereof, because of lack of information available to you, specify in full and complete detail the reason the information is not available to you and what has been done to locate such information. In addition, specify what knowledge or belief you have concerning the unanswered portion of the interrogatory and set forth the facts upon which such knowledge or belief is based. D. Where an interrogatory does not specifically request a particular fact, but where such fact or facts are necessary to make the answer to the interrogatory either comprehensible or complete, or not misleading, you are requested to include such fact or facts as part of the answer, and the interrogatory shall be deemed specifically to request such fact or facts. E. If, in answering these interrogatories you should encounter what you believe to be an ambiguity in a question, instruction, or definition, set forth the matter deemed ambiguous and the interpretation you used in answering. F. If you assert a privilege, work product immunity, or decline to provide an answer on the basis of some other objection, kindly: 1. identify and describe the communication in question, including its date, author(s) and recipient(s), and participants; 2. describe the basis of the asserted privilege or objection; 2 3. state the basis of your objection in sufficient detail so that Plaintiff's counsel and the Court may make independent determinations as to the merits of your objection; and 4. identify the person(s) who has present knowledge of the information. You are under a continuing duty to supplement your responses to these interrogatories pursuant to Pa. R.C.P. No. 4007.4. DEFINITIONS A. "You," "your" or "defendant" means the Defendant Department 77, Inc., and its agents and all other persons acting or purporting to act on behalf of such defendant. B. "Plaintiff' or "Fry" means Plaintiff Fry Communications, Inc. C. The word "identify" or "identity" or words of similar import, when used in reference to: 1. a natural individual, requires you to state his or her full name, and present or last known residential address, business address, and telephone number. 2. a corporation, requires you to state its full corporate name, and any name under which it does business, and its state of incorporation, the address and telephone number of its principal place of business, and the address(es) and telephone number(s) of all its officers; 3 a business other than a corporation, requires you to state the full name or style under which the business is conducted, its business address, its telephone number(s) and the identity of the persons who own, operate, and control the business; 4. a document, requires you to state its title, its date, the names of its authors and recipients, and its present or last known location and custodian; 5. a communication, requires you to identify the persons participating in or otherwise present during all or part of the communication, describe the substance thereof, and if any part of the communication was not written, to identify the documents which refer to or evidence the portion of the communication that was non-written. 6. an act, requires you to identify the date of the act, all persons participating in the act, and the nature of each such person's participation. E. "Including" means including but not by way of limitation. F. "Related" or "relating to" means constituting, comprising, containing, setting forth, showing, disclosing, describing, explaining, summarizing, concerning or referring to, directly or indirectly. G. The term "concerning" means relating to, referring to, describing, evidencing or constituting. H. The singular includes the plural and the plural includes the singular. 1. The use of the conjunctive includes the use of the disjunctive and the use of the disjunctive includes the use of the conjunctive. The conjunctive "and" and "or" shall not 4 be interpreted disjunctively or to exclude any documents otherwise within the scope of these requests. J. The word "any" means any and all documents so described. K. "Communication," "communicate," and "communicated" means the transmittal of information (in the form of facts, ideas, inquiries, or otherwise). L. "Meeting" means any encounter between two (2) or more persons during which a communication of any kind occurred and shall include, but not be limited to, formal gatherings, meetings, conversations, correspondence, electronic data and telephone calls. M. "Complaint" means the Complaint filed in this action by Plaintiff. N. "Invoice No. 221334" means the November 18, 2006 invoice issued by Plaintiff to Defendant, a copy of which is attached to the Complaint as Exhibit D. 0. "Catalogs" means the "Hollywood Gadgets" catalogs that Plaintiff printed for Defendant, as described in Invoice No. 221334. N. Any term or word that is not defined herein has its usual and customary meaning. 5 INTERROGATORIES 1. Identify each person likely to have discoverable information concerning the claims and defenses asserted in this litigation, and for each such person identify the substance of the information that person is likely to have. 2. Identify the person or persons most knowledgeable about the facts relating to the "extensive marketing plan" alleged in Paragraph 28 of Your Counterclaim. 6 3. Identify the person or persons most knowledgeable about the facts and circumstances relating to the "significant resources" that You allege were expended in Paragraph 29 of Your Counterclaim. 4. Identify the person or persons most knowledgeable about the facts and circumstances relating to Your allegation in Paragraph 31 that the catalog bundles were "packaged in shrinkwrap deemed insufficient in strength to withstand normal transit and handling without breakage". 7 5. Identify the person or persons most knowledgeable about the facts relating to Your allegation in Paragraph 32 that "Forty-Five percent of the bundles delivered by Plaintiff to the United States Postal Service ripped during processing." 6. Identify the person or persons most knowledgeable about the facts relating to Your allegations in Paragraph 32 concerning "a delay of delivery" of Catalogs. _.J 7. Identify all communications between You and any person concerning the delivery of Catalogs by the United States Postal Service. 8. Identify all communications between You and any person concerning the alleged non-delivery of Catalogs by the United States Postal Service. 9 _.1 9. Identify all communications between You and TrackMyMail.com concerning the Catalogs. 10. Identify all communications between You and the United States Postal Service concerning the Catalogs. 10 i _.f 11. Identify all communications between You and any person concerning the packaging of the Catalogs by Fry. 12. Identify the person or persons most knowledgeable about the facts relating to Your allegations in Paragraph 32 concerning "non delivered" catalogs. II r? 13. For each Catalog You contend was not delivered Your customers, identify the name, address and customer number of the addressee. 14. For each Catalog You contend was delayed in delivery to Your customers, identify the (a) name, address and customer number of the addressee (b) the date it was delivered to the customer and (c) the amount of time by which you contend delivery was delayed. 12 15. Describe separately each item of damage you claim in this litigation and state the legal and factual bases therefor. 16. Do you assert a claim for lost profits? If so, then set forth in detail your computation of the alleged lost profits. 13 17. State whether you have obtained any statement concerning the action or its subject matter, within the meaning of Rule 4003.4 of the Pennsylvania Rules of Civil Procedure, from any party or witness. If yes, (a) identify the person who made the statement; (b) state the date upon which the statement was made; (c) identify all persons present when the statement was made; (d) state whether the statement was written or oral; and (e) if oral, set forth the substance of the statement. 18. Identify all exhibits you expect to offer in evidence at trial. 14 ?f 19. Identify each person that you expect to call as a fact witness at the trial of this matter, who will testify with respect to liability and/or damages, and with regard to each such person, state the following: (a) the name, age, employer, job title, and address of each such person; (b) the subject matter on which such person is expected to testify; (c) the substance of the facts to which each such person is expected to testify. 20. Identify each person that you expect to call as an expert witness at the trial of this matter, who will testify with respect to liability and/or damages, and with regard to each such person, state the following: (a) the name, age, employer, job title, and address of each such person; (b) the occupation and areas of specialization of each such person; (c) a list of all publications authored by each such person, including the title of the work, the name of the periodical or book in which it was printed and the date it was printed; 15 1 .r (d) a list of all lawsuits in which such person has testified and the substance of the opinion in each such case; (e) the subject matter on which such person is expected to testify; (f) the substance of the facts and opinions to which each such person is expected to testify; and (g) a summary of the grounds for each such opinion. 21. Identify all documents You relied on in responding to these Interrogatories. 16 22. Identify each person who provided information used in responding to these Interrogatories, and for each such person identify the responses or any portions thereof for which that person provided that information. Dated: June 19, 2007 Robert A. S41 (IIJ N"o. 17766) Craig W. Hil wig (1D No. 70107) KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 (215) 238-1700 Thomas O. Williams (ID No. 67987) REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorneys for Plaintiff Fry Communications, Inc. 17 CERTIFICATE OF SERVICE I, Craig W. Hillwig, hereby certify that I caused a copy of the foregoing document to be served on the following counsel by first class mail, postage pre-paid: Lee Herman, Esquire 426-428 East Baltimore Pike, P.O. Box 2090 Media, PA 19063 Attorney for Defendant Dated: June 19, 2007 18 X???? ? (I 1(f IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA FRY COMMUNICATIONS, INC. Plaintiff, V. DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS Defendant. CIVIL TERM NO. 07-1671 PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS Plaintiff, by its attorneys, and pursuant to Rule 4009 of the Pennsylvania Rules of Civil Procedure, hereby propounds the following document requests upon Defendant. Defendant is requested to serve a written response to this request within 30 days of the service of this request. Defendant is requested to produce the requested documents at the offices of Kohn, Swift & Graf, P.C., One South Broad Street, Suite 2100, Philadelphia, Pennsylvania, or such other location as counsel may agree. INSTRUCTIONS A. Each request is to be responded to independently and each numbered response is to be set forth separately. B. If a requested document was, or is no longer, in your possession or subject to your control, or is no longer in existence, state whether any such document is: 1. Missing or lost; 1 ".J 2. Destroyed; 3. Transferred to an other; or 4. Otherwise disposed of. In the case of any such instance, also set forth the surrounding circumstances and any authorization for the latter three dispositions. Also state the date or best approximate date of any such disposition and, if known, the author, subject matter, location, and custodian of any such document. C. These requests include the production of all non-identical copies, inclusive of drafts and copies upon which any notes or notations have been made. D. If you object to disclosing some or all of the contents of any documents on grounds of privilege, produce all. documents for which privilege is not claimed and include a statement identifying such document, the fact of such claims and the following information: 1. The nature of the privilege being claimed. 2. The type of documents; 3. The general subject of the documents; 4. The date of the documents; 5. The author(s) and addressee(s) of the documents; 6. The identity of all persons to whom the document or copies of the document were shown or provided; and 7. Where not apparent, the relationship of the author and addressee to each other. 2 E. If you encounter any ambiguity in construing any request, definition, or instruction relevant to the request, set forth the matter deemed "ambiguous" and set forth the construction chosen or used in responding to the request. F. This request shall be deemed continuing, in accordance with Rule 4007.4 of the Pennsylvania Rules of Civil Procedure, so as to require additional production if further documents are obtained between the time responses to this request are served and the completion of trial. Such additional documents shall be produced from time to time, but not later than 30 days after such additional documents are received. G. Unless otherwise specified or unless required to make your answer complete, each request relates to, covers and requests documents from December 1, 2005 to the present (the "Relevant Time Period"). DEFINITIONS A. "Possession, custody and control" of documents means possession, custody or control or within your right to possession, custody or control. B. The term "document" or "documents" is used in the broadest possible sense and means, without limitation, any written, printed, typed, photostated, photographed, recorded or otherwise reproduced communication, or representation, including letters, words, numbers, pictures, sounds or symbols, or combinations thereof, transcripts, correspondence, e- mails, instant messages, memoranda, reports, financial reports, notes, records, letters, envelopes, telegrams, studies, analyses, contracts, agreements, projections, estimates, working papers, summaries, statistical statements, financial statements or work papers, reports and/or summaries of investigations, opinions or reports of accountants, other reports, trade letters, press releases, comparisons, books, diaries, articles, magazines, newspapers, booklets, brochures, pamphlets, circulars, bulletins, notices, forecasts, drawings, diagrams, instructions, minutes of meetings or of other communications, of any type, including inter- and intra-office communications, questionnaires, and surveys, charts, graphs, photographs, phonographs, films, types, discs, data cells, drums, print-outs, all other data compilations from which information can be obtained (translated, if necessary, through detection devices into usable form), any preliminary versions, drafts or revisions of any of the foregoing, any non-identical copies of any of the foregoing, and other writings or documents of whatever description, whether produced or authored by you or anyone else, now in your possession, custody or control, your merged or acquired predecessors, your former and present directors, officers, counsel, agents, employees and/or persons acting or purporting to act on your behalf. C. "All documents" means every document, whether an original or copy, as above defined known to you and every such document which can be located or discovered by reasonably diligent efforts. D. "You," "your" or "defendant" means the Defendant Department 77, Inc., and its agents and all other persons acting or purporting to act on behalf of such defendant. E. "Including" means including but not by way of limitation. F. "Related" or "relating to" means constituting, comprising, containing, setting forth, showing, disclosing, describing, explaining, summarizing, concerning or referring to, directly or indirectly. 4 G. The term "concerning" means relating to, referring to, describing, evidencing or constituting. H. The singular includes the plural and the plural includes the singular. 1. The use of the conjunctive includes the use of the disjunctive and the use of the disjunctive includes the use of the conjunctive. The conjunctive "and" and "or" shall not be interpreted disjunctively or to exclude any documents otherwise within the scope of these requests. J. The word "any" means any and all documents so described. K. "Communication," "communicate," and "communicated" means the transmittal of information (in the form of facts, ideas, inquiries, or otherwise). L. "Meeting" means any encounter between two (2) or more persons during which a communication of any kind occurred and shall include, but not be limited to, formal gatherings, meetings, conversations, correspondence, electronic data and telephone calls. M. "Complaint" means the Complaint filed in this action by Plaintiff. N. "Invoice No. 221334" means the November 18, 2006 invoice issued by Plaintiff to Defendant, a copy of which is attached to the Complaint as Exhibit D. 0. "Catalogs" means the catalogs that Plaintiff printed for Defendant, as described in Invoice No. 221334. P. "Plaintiff' or "Fry" means the Plaintiff Fry Communications, Inc. N. Any term or word that is not defined herein has its usual and customary meaning. 5 REQUESTS 1. All statements concerning the action or its subject matter, as defined in Pennsylvania Rule of Civil Procedure 4003.4. 2. All documents relating to any credit application that You submitted to Fry for printing services to be performed by Fry for You. 3. All documents relating to any credit extended to You by Fry for printing services to be performed by Fry for You. 4. All documents relating to any orders placed by You for printing services to be performed by Fry for You. 5. All documents relating to Fry's Invoice No. 221334. 7 6. All documents relating to any payment made by You for printing services performed by Fry for You. 7. All documents relating to Your refusal to pay the amounts stated as due and owing on Invoice No. 221334. 8. All documents relating to the mailing of the Catalogs. 9. All documents relating to the processing or handling of the Catalogs by the United States Postal Service. 10. All documents concerning the delivery of the Catalogs by the United States Postal Service. 1 11. All documents relating to any alleged non-delivery of Catalogs by the United States Postal Service. 12. All documents relating to any alleged late delivery of Catalogs by the United States Postal Service. 13. All documents concerning Your tracking of the delivery of the Catalogs by the United States Postal Service, including without limitation through TrackMyMail.com. 14. All budgets or other documents reflecting any projections of expected sales and/or revenues to be derived from the Catalogs. 15. Documents sufficient to show, for each catalog mailing made by You or on Your behalf during each of the last five (5) calendar years: (a) The total number of catalogs comprising the mailing; (b) The total number of catalogs delivered from that mailing; (c) The total number of catalogs from that mailing that were undelivered; 9 (d) The total cost to You of the printing and mailing of the catalogs; (e) The total sales by You as a result of the catalog mailing; (f) The total net profit to You attributable to catalog mailing. 16. To the extent you claim that you are not liable for any of the sums sought by Plaintiff in the Complaint, produce all documents, not otherwise produced pursuant to any of the preceding requests, which you contend support or otherwise form a basis for such claim. IT All documents relating to the "extensive marketing plan" identified in Paragraph 28 of Your Answer, New Matter and Counterclaim. 18. All documents reflecting Your costs of producing and mailing the Catalogs. 19. All documents relating to the "significant resources" You allege You expended in Paragraph 29 of Your Answer, New Matter and Counterclaim. 10 20. All documents relating to your allegation that "Forty-Five percent of the bundles delivered by Plaintiff to the United States Postal Service ripped during its processing" in Paragraph 30 of Your Answer, New Matter and Counterclaim. 21. All documents relating to your allegation that "more than 40% of the catalogs were not delivered" in Paragraph 30 of Your Answer, New Matter and Counterclaim. 22. All documents reflecting any damages alleged by You in Your Counterclaim. Dated: June 19, 2007 Robert A. Sv6 (ID No. 17766) Craig W. Hil wig (ID No. 70107) KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 (215) 238-1700 Thomas O. Williams (ID No. 67987) REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorneys for Plaintiff Fry Communications, Inc. 11 CERTIFICATE OF SERVICE I, Craig W. Hillwig, hereby certify that I caused a copy of the foregoing document to be served on the following counsel by first class mail, postage pre-paid: Lee Herman, Esquire 426-428 East Baltimore Pike, P.O. Box 2090 Media, PA 19063 Attorney for Defendant Dated: June 19, 2007 12 t v * KOHN, SwiFT Ek GRAF, P. C. ONE SOUTH BROAD STREET, SUITE 2100 JOSEPH C. KOHN PHILADELPHIA, PENNSYLVANIA 19107-3304 HAROLD E. KOHN ROBERT A. SWIFT 1914-1999 GEORGE W. CRONER ROBERT J. LAROCCA (215) 238-1700 DENIS F. SHEILS ?- SPECIAL COUNSEL DOUGLAS A. ABRAHAMS * TELECOPIER (215) 238-1966 JOSEPH M. HOEFFEL WILLIAM E. HOESE FIRM E-MAIL: info(rDkoflnswift.com STEVEN M. STEINGARD * STEPHEN H. SCHWARTZ WEB SITE: www.kOhnSWIft.COm OF COUNSEL CRAIG W. HILLWIG MERLE A. WOLFSON ELKAN M. KATZ LISA PALFY KOHN CHRISTINA D. SALER * E-MAIL: CHILLWIG@KOHNSWIFT.COM HADLEY P. ROELTGEN ALLAN M. HOFFMAN -o NEIL L, GLAZER - I ALSO ADMITTED IN NEW YORK July 25, 2007 -ALSO ADMITTED IN NEVADA - ALSO ADMITTED IN NEW JERSEY O ALSO ADMITTED IN THE DISTRICT OF COLUMBIA - ONLY ADMITTED IN NEW YORK VIA FIRST CLASS MAIL AND FACSIMILE TO (610) 891-9080 Lee Herman, Esquire 426-428 East Baltimore Pike P.O. Box 2090 Media, PA 19063 Re: Fry Communications, Inc. v. Dept. 77, Inc. d/b/a Hollywood Gadgets, Civil No. 07-1671 (Court of Common Pleas, Cumberland County, PA) Dear Mr. Herman: On June 19, 2007, plaintiff served its First Set of Interrogatories Addressed to Defendant and First Set of Requests for Production of Documents and Things. We have not received any objections or responses, which defendant was required to serve by July 19, 2007. If we do not receive defendant's full and complete discovery responses by the close of business Friday, July 27, 2007, we may seek relief from the Court. Please call me if you have any questions concerning this matter. Since ely yours, Craig W. HI i C WH/mmi cc: Mary Roberts Thomas O. Williams, Esquire 34273_1 ?f 0 CERTIFICATE OF SERVICE AND NOW, this 1" day of August, 2007, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. mail, first-class, postage prepaid and addressed as follows: Craig W. Hillwig, Esquire Kohn, Swift & Graf, P.C. One South Broad Street Suite 2100 Philadelphia, PA 19107 Lee Herman, Esquire 426-428 East Baltimore Pike Post Office Box 2090 Media, PA 19063 _-TRoma-a (D. CAD Thomas O. Williams, Esquire C? .rr`'? Cl7 u? REAGER & ADLER, PC ATTORNEYS AND COUNSELORS AT LAW 2331 MARKET STREET CAMP HILL, PENNSYLVANIA 17011-4642 717-763-1383 TELEFAX 717-730-7366 WEBSITE: ReagerAdlerPC.com THEODORE A. ADLER + DAVID W. REAGER LINUS E. FENICLE THOMAS O. WILLIAMS SUSAN J. SMITH PETER R. WILSON Writer's E-Mail Address: Twilliams (a)ReagerAdlerPC.com August 1, 2007 Via Hand Delivery Office of the Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 SUSAN H. CONFAIR JOHN H. PIETRZAK RICHARD J. JOYCE +Certified Civil Trial Specialist Re: Fry Communications, Inc. v. Department 77, Inc. d/b/a Hollywood Gadgets Docket No.: 07-1671 (Cumberland Co. C.C.P) Our File No.: 83-032.005 Dear Sir/Madam: Enclosed for filing, please find an original and two (2) copies of Plaintiff, Fry Communications, Inc.'s Order, Rule to Show Cause and Motion to Compel Discovery Responses and for Sanctions in the above-referenced matter. Kindly file the original and return the time- stamped copies to our Courier making this filing. Should you have any questions regarding the enclosed, please do not hesitate to contact me. TOW/jne Enclosure Cc: Lee Herman, Esquire Craig W. Hillwig, Esquire Kohn, Swift & Graf, P.C. Mary Roberts Fry Communications, Inc. 4 i IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA FRY COMMUNICATIONS, INC. ; Plaintiff, ; V. DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS ' Defendant. RULE CIVIL TERM NO. 07-1671 AND NOW, this i3 day of _/us1 J-* , 2007, a Rule to Show Cause is issued upon Defendant to show cause why the Plaintiff's Motion to Compel Discovery Responses and for Sanctions, and the relief requested therein, should not be granted. ymrv;i-, Rule returnable Z ° days from the date of this Rule. BY THE COURT: 344071 f'1 O REAGER & ADLER, P.C. BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: TwilliamsnReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 KOHN, SWIFT & GRAF, P.C. BY: ROBERT A. SWIFT, ESQUIRE Attorney I.D. No. 17766 Rswiftkkohnswift.com CRAIG W. HILLWIG, ESQUIRE Attorney I.D. No. 70107 Chillwi 2a kohnswift.com One South Broad Street, Suite 2100 Philadelphia, PA 19107 Telephone: (215) 238-1700 Attorneys for Plaintiff Fry Communications, Inc. IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA FRY COMMUNICATIONS, INC. Plaintiff, V. DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS Defendant CIVIL TERM NO. 07-1671 PLAINTIFF'S MOTION TO MAKE RULE ABSOLUTE AND NOW, comes Plaintiff, Fry Comminications, Inc., by and through its attorneys, who respectfully moves this Court to make the Rule dated August 13, 2007, Absolute, and in support thereof, avers the following: 1. Plaintiff Fry Communications, Inc. (hereinafter "Movant") filed and served upon Defendant Department 77, Inc., (hereinafter "Respondent"), a Motion to Compel, and proposed Order, regarding Respondent's failure to answer Movant's discovery requests and failure to provide documents to Movant responsive to the Movant's Requests for Production of Documents. 2. This Honorable Court entered a Rule dated August 13, 2007, ordering Respondent to Show Cause why Movant's Motion to Compel should not be granted. Movant served the Rule upon Respondent's attorney by U.S. mail dated September 20, 2007. A true and correct copy of the aforesaid Rule, along with proof of service by mail upon Respondent's Attorney, is attached hereto as Exhibit "A". Pursuant to Pennsylvania Rule of Civil Procedure, 440(b), service upon Respondent was effective and complete upon mailing. 3. As of the date of this Motion, no Answer has been filed by the Respondent to the Plaintif s Motion to Compel. Because more than 20 days have past since the date of service of the Rule upon Respondent, this Court should make the Rule absolute. 4. To date, no responses have been provided by Respondent to Movant's discovery requests. 5. Because Respondent has failed to respond to the Rule, Movant is entitled to the relief set forth in its proposed Order attached hereto. 2 WHEREFORE, Movant/Plaintiff Fry Communications, Inc., respectfully requests this Honorable Court to make the Rule Absolute, and to further enter the Order submitted with the Petitioner's Motion to Compel which is attached Dated: October 15, 2007 Tho as O. Williams (ID No. 67987) REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Robert A. Swift (ID No. 17766) Craig W. Hillwig (ID No. 70107) KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 (215) 238-1700 Attorneys for Plaintiff Fry Communications, Inc. s IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA FRY COMMUNICATIONS, INC. Plaintiff, ; V. ' DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS Defendant. RULE CIVIL TERM NO. 07-1671 AND NOW, this 13 r day of.. gili-i , 2007, a Rule to. Show Cause is issued upon Defendant to show cause why the Plaintiff s Motion to Compel Discovery Responses and for Sanctions, and the relief requested therein, should not be granted. 9xnrr?., Rule returnable Z ° days from the date of this Rule. N TRUE COPY FROM RECORU. in Teo=ny WhrWv i hwe unto set mY. hand ad t 9 or said at Carli*,. PA BY THE COURT: 344071 CERTIFICATE OF SERVICE AND NOW, this 20ffi day of September, 2007, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. mail,.first-class, postage prepaid and addressed as follows: Lee Herman, Esquire 426-428 East Baltimore Pike Post Office Box 2090 Media, PA 19063 Craig W. Hillwig, Esquire Kohn, Swift & Graf, P.C. One South Broad Street Suite 2100 Philadelphia, PA 19107 REAGER & ADLER, PC ATTORNEYS AND COUNSELORS AT LAW 2331 MARKET STREET CAMP Hill, PENNSYLVANIA 17011-4642 717-763-1383 TELEFAX 717-730-7366 WEBSITE: ReagerAdlerPC.com THEODORE A. ADLER + DAVID W. REAGER LINUS E. FENICLE THOMAS 0. WILLIAMS SUSAN J. SMITH PETER R. WILSON SUSAN H. CONFAIR JOHN H. PIETRZAK RICHARD J. JOYCE +Certified Civil Trial Specialist Writer's E-Mail Address: TWilliams@ReagerAdlerPC.com Lee Herman, Esquire 426-428 East Baltimore Pike Post Office Box 2090 Media, PA 19063 September 20, 2007 Re: Fry Communications, Inc. v. Department 77, Inc., d/b/a Hollywood Gadgets Docket No.: 07-1671 (Cumberland Co. C.C.P.) Our File No.: 83-032.005 Dear Lee: Enclosed for service upon you, please find a Rule to Show Cause, which was filed in the above-captioned matter on August 13, 2007. The Rule is returnable 20 days from date of service of this Rule. If you have any questions, please do not hesitate to contact the undersigned. Very truly 2s'? Thomas 0. Williams TOW/jne Enclosure Cc: Craig W. Hillwig, Esquire Kohn, Swift & Graf, P.C. Mary Roberts Fry Communications, Inc. CERTIFICATE OF SERVICE AND NOW, this 15th day of October, 2007, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. mail, first-class, postage prepaid and addressed as follows: Lee Herman, Esquire 426-428 East Baltimore Pike Post Office Box 2090 Media, PA 19063 0. Williams, Esquire r..a ?1 t ?? --' ' ? ? ?.? T SI"1? ? . ?.} '? .' "[? y t i Srt .. - , ? ?J ".??', . w ?i? FRY COMMUNICATIONS, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 07-1671 CIVIL DEPARTMENT 77, INC., d/b/a HOLLYWOOD GADGETS, Defendant IN RE: PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPONSES AND FOR SANCTIONS ORDER AND NOW, this day of October, 2007, a brief argument on the within motion to compel discovery responses and for sanctions is set for Thursday, December 6, 2007, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Thomas O. Williams, Esquire Robert A. Swift, Esquire For the Plaintiff 1\ Xe Herman, Esquire For the Defendant :rlm Kevin ess, J. - r ?i i,•' i V' ? ? 'r A 14 r rc 1? 89 =al WV 61 130 LOOZ 0"H-4(1 ?-CGIIJ FRY COMMUNICATIONS, INC., Plaintiff V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-1671 CIVIL TERM DEPARTMENT 77, INC., d/b/a: HOLLYWOOD GADGETS, Defendant IN RE: PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPONSES AND FOR SANCTIONS ORDER OF COURT AND NOW, this 6th day of December, 2007, this matter having been called for argument, the defendant having failed to appear, it is ordered and directed that the defendant shall provide the plaintiff with full and complete responses to the plaintiff's first set of interrogatories and first set of requests for production of documents and things within twenty (20) days of the date of service of this order. In default thereof, the court to impose sanctions. By the Court, Thomas 0. Williams, Esquire For the Plaintiff Lee Herman, Esquire For the Defendant :bg X? A4 KevA. Hess, J. Oi,as r"tL(- /.t/7/a7 L0 •01 WV L-- 330 LOOZ i-00d 31 LL ?o FRY COMMUNICATIONS, INC., Plaintiff VS. DEPARTMENT 77, INC., d/b/a HOLLYWOOD GADGETS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-1671 CIVIL IN RE: PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPONSES AND FOR SANCTIONS I ORDER AND NOW, this 1'1,t day of February, 2008, a brief argument on the plaintiff's motion for sanctions is set for Thursday, February 14, 2008, at 2:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. Xomas O. Williams, Esquire For the Plaintiff Herman, Esquire (,/For the Defendant Am BY THE COURT, > C\l cc.r C: ?:j ZZ, ?i .' t, Pvi FRY COMMUNICATIONS, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 07-1671 CIVIL DEPARTMENT 77, INC., d/b/a HOLLYWOOD GADGETS, Defendant IN RE: PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPONSES AND FOR SANCTIONS ORDER AND NOW, this Zo ` day of February, 2008, argument on the plaintiff s motion for sanctions set for February 14, 2008, is continued to Thursday, March 6, 2008, at 2:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, -/'Thomas O. Williams, Esquire For the Plaintiff ?Lee Herman, Esquire For the Defendant :rlm a/w/oa (200 t F S rn ?," LJ, 4'? ? qq FRY COMMUNICATIONS, INC., Plaintiff V DEPARTMENT 77, INC., d/b/a HOLLYWOOD GADGETS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-1671 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPONSES AND FOR SANCTIONS ORDER OF COURT AND NOW, this 6th day of March, 2008, this matter having been called for argument, it is ordered and directed that defendant shall be precluded from entering into evidence any document which it has not produced to Plaintiff within thirty (30) days from the date of this order. By the Court, chard J. Joyce, Esquire x5i For the Plaintiff ,4ee M. Herman, Esquire For the Defendant :bg o4.0 'iNVAIASNN L I : I I WTI L- 8VW OOOZ ,k8VIQ..ivi}??(/,ry?yp??d?y{???H,l. AO 301141)VJ IJ PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONTOARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. X for trial without a jury. --------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire captions must be stated in full) FRY COMMUNICATIONS, INC., (Plaintiff) VS. (check one) X Civil Action - Law ? Appeal from arbitration DEPARTMENT 77 INC., d/b/a HOLLYWOOD GADGETS, (Defendant) (other) The trial list will be called on May 27, 2008 and Trials commence on June 23, 2008 Pretrials will be held on June 4, 2008 (Briefs are due 5 days before pretrials No. 07-1671 07 Term Indicate the attorney who will try case for the party who files this praecipe: Robert A. Swift, Kohn Swift & Graf, P.C., One South Broad St., Ste. 2100, Phila. PA 19107 Thomas O. Williams, Reader & Adler, P.C., 2331 Market St., Camp Hill, PA 17701 Indicate trial counsel for other parties if known: This case is ready for trial. Dated: April 29, 2008 Signed: Print Name: Craig _W. Hillwig Attorney for: Plaintiff, Fry Communications, Inc. 1 CERTIFICATE OF SERVICE I, Craig W. Hillwig, hereby certify that a true and correct copy of the foregoing Praecipe for Listing Case for Trial to be served on the following counsel by facsimile and by First Class mail, postage pre-paid: Lee Herman, Esquire 426-428 East Baltimore Pike, P.O. Box 2090 Media, PA 19063 Attorney for Defendant Dated: April 29, 2008 6Craig . Hillwig 00 -C ? O r FRY COMMUNICATIONS, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 07-1671 CIVIL DEPARTMENT 77, INC., d/b/a HOLLYWOOD GADGETS, Defendant IN RE: NONJURY TRIAL ORDER AND NOW, this z-1- day of May, 2008, a pretrial conference in the above- captioned matter is set for Friday, June 20, 2008, at 9:30 a.m. in the Chambers of the undersigned. BY THE COURT, Thomas O. Williams Esquire Craig W. Hillwig, Esquire For the Plaintiff Lee Herman, Esquire For the Defendant rlm 'R`te I?. sw??4 , esy 1 r S?aS/O8 -1 rr ! v . ?, -?.. ; tl tl _ rte. FRY COMMUNICATIONS, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 07-1671 CIVIL DEPARTMENT 77, INC., d/b/a HOLLYWOOD GADGETS, Defendant IN RE: PRETRIAL CONFERENCE Counsel in this matter participated in a pretrial conference by telephone. Representing the plaintiff are Craig W. Hillwig, Esquire, and Thomas O. Williams, Esquire. Lee Herman, Esquire, is counsel for the defendant. The parties in this case entered into a contract whereby the plaintiff printed catalogs for the defendant. The plaintiff contends that, following the printing, the catalogs were presorted and bundled in accordance with United States Postal Service standards and were sent through the mail. The plaintiff then invoiced the defendant for $55,613.41. The defendant has refused to pay claiming that the plaintiff improperly bundled the catalogs causing the bundles to break apart during transport which, in turn, resulted in non-delivery or late delivery of some of the catalogs. On March 6, 2008, the court entered an order stating that "defendant shall be precluded from entering into evidence any document which it has not produced to Plaintiff within thirty (30) days." During the conference, counsel for the plaintiff indicated that he intended to seek enforcement of this order in the event that the defendant sought to introduce documents which had not been produced in a timely fashion. The court will entertain an objection to any such documents without the necessity of the filing of a written motion in limine. Counsel also alerted the court that it would seek to dismiss the defendant's counterclaim for alleged damages for non-delivery or late delivery as a matter of law by virtue of a provision in the contract which provides that the plaintiff would not be "liable for loss of revenue or any other resulting or consequential or incidental damages." The contract between the parties also provided for the recovery of reasonable counsel fees in the event of default. It was agreed that we would deal with the question of counsel fees at the time of trial in this matter. To the degree that it is agreeable among counsel, plaintiff will provide the defendant with a statement of the counsel fees prior to the trial. This matter has been scheduled to be heard, without a jury, on Friday, August 22, 2008, commencing at 10:30 a.m. June 20, 2008 ?Thomas O. Williams, Esquire ,/Eraig W. Hillwig, Esquire For the Plaintiff ,--'ree Herman, Esquire For the Defendant :rlm C IESrnc-a rZ;CL W2. 14?k A. Hess, J. F c? "77 FRY COMMUNICATIONS, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 07-1671 CIVIL DEPARTMENT 77, INC., d/b/a HOLLYWOOD GADGETS, Defendant IN RE: NONJURY TRIAL VERDICT AND NOW, this /1` day of September, 2008, following trial without a jury, the court finds in favor of the plaintiff and against the defendant in the amount of $72,041.46, together with attorneys' fees in the amount of $18,000.00, for a total of $90,041.46, together with interest at the legal rate, from and after August 22, 2008. ?'homas O. Williams, Esquire Craig W. Hillwig, Esquire For the Plaintiff ALee Herman, Esquire For the Defendant rlm 124F t'EE S ena, LL BY THE COURT 43S cs 1 4. IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA FRY COMMUNICATIONS, INC. ; Plaintiff, V. DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS Defendant. CIVIL TERM NO. 07-1671 PRAECIPE TO ENTER JUDGMENT UPON VERDICT IN A NON-JURY TRIAL TO THE PROTHONOTARY: Please enter judgment upon the verdict of the Court dated September 11, 2008 in the above-captioned action in favor of Plaintiff Fry Communications, Inc. and against Defendant Department 77, Inc. in the amount of $90,041.46, together with interest at the legal rate, from and after August 22, 2008. Dated: September 29, 2008 Robert A ft (ID No. 17766) Craig W. W wig (ID No. 70107) KOHN, SWIFT & GRAF, P. C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 (215) 238-1700 Thomas O. Williams (ID No. 67987) REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorneys for Plaintiff Fry Communications, Inc. CERTIFICATE OF MAILING I, Craig W. Hillwig, hereby certify pursuant to Pa. R. Civ. P. 237 that a copy of the foregoing Praecipe to Enter Judgment Upon Verdict In a Non-Jury Trial was mailed to the attorney of record for each other party who has appeared in the action, as follows: Lee Herman, Esquire 426-428 East Baltimore Pike P.O. Box 2090 Media, PA 19063 Attorney for Defendant Department 77, Inc. Dated: September 29, 2008 2 013 00 C? t' C"3 ? n Cw ? i D -wo IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA FRY COMMUNICATIONS, INC. ; Plaintiff, V. DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS Defendant. CIVIL TERM NO. 07-1671 NOTICE OF ENTRY OF JUDGMENT TO DEPARTMENT 77, INC. d/b/a HOLLYWOOD GADGETS: c/o Lee Herman, Esquire 426-428 East Baltimore Pike P.O. Box 2090 Media, PA 19063 Attorney of Record for Defendant YOU ARE HEREBY NOTIFIED THAT on 2008, the attached JUDGMENT has been entered against you in the above-captioned case. Dated: , 2008 P Y CERTIFICATE OF MAILING I, Craig W. Hillwig, hereby certify pursuant that a copy of the foregoing proposed Notice of Entry of Judgment was mailed to the attorney of record for each other party who has appeared in the action, as follows: Lee Herman, Esquire 426-428 East Baltimore Pike P.O. Box 2090 Media, PA 19063 Attorney for Defendant Department 77, Inc. Dated: September 29, 2008 2