HomeMy WebLinkAbout03-2782
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
)
)
)
)
)
)
)
)
)
)
)
GREEN SPRING DAIRY, INCORPORATED, )
1635 Market Street )
Philadelphia, P A 19103 )
)
)
)
)
)
)
)
)
)
)
)
LAND O'LAKES, INC.
405 Park Drive
Carlisle, PAl 70 13
Plaintiff
v.
CLOUSE TRUCKING, INC.,
2075 Ritner Highway
Carlisle, P A 17013
J. EDWARD CLOUSE
2075 Ritner Highway
Carlisle, P A 17013
AND
DANIEL FOX
122 Schoeneck Road
Ephrata,PA 17522
Defendants
No: 03 -.;J.7PJ..... C:IU~L~~
Jury Trial Demanded
PRAECIPE FOR SUMMONS
TO TIlE CLERK OF COURTS OF SAID COURT:
Issue Summons in Civil Action in the above case.
heriff.
~ Writ of Summons shall be issued and forwarded to
DATE:
b! /l.fu-
.
GROSS, MC E ~ARRE & EATON, LLP
BY: 0
PATRIC ILLY,ESQUIRE
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
(610) 820-5450
I.D. # 32235
LAND O'LAKES, INC., and DAIRY
MARKETING SERVICES, LLC.,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
: CIVIL ACTION - LAW
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE
and DANIEL FOX,
: No. 03-2782 CIVIL TERM
Defendants
NOTICE TO PLEAD
TO: LAND O'LAKES, INC. and DAIRY MARKETING SERVICES, LLC, Plaintiffs
c/o PATRICKJ. REILLY, ESQUIRE
Gross, McGinley, LaBarre & Eaton, LLP
33 South Seventh Street
P.O. Box 4060
Allentown, PA 18105-4060
Attorneys for Plaintiff
YOU ARE REQUIRED to plead to the within Answer with New Matter within twenty
(20) days of services hereof or a default judgment may be entered against you.
Hawke McKeon Sniscak & Kennard LLP
if -JP.4
~'nYder, Esqu e
Attorney LD. No. 34344
Hawke McKeon Sniscak & Kennard LLP
100 North Tenth Street
PO Box 1778
Harrisburg,PA 17105-1778
717-236-1300
DATED: July 16, 2004
LAND O'LAKES, INC., and DAIRY
MARKETING SERVICES, LLC.,
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
CIVIL ACTION - LAW
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE
and DANIEL FOX,
: No. 03-2782 CIVIL TERM
Defendants
ANSWER AND NEW MATTI~R
OF DEFENDANTS, CLOVERLAND DAIRY LIMITED PARTNERSHIP,
AND DANIEL FOX. TO PLAINTIFFS' AMENDED COMPLAINT
AND NOW, come the Defendants, CloverIand Dairy Limited Partnership ("CloverIand")
and Daniel Fox (hereinafter "Fox"), by and through their attorneys, Hawke McKeon Sniscak &
Kennard LLP, and in response to the Plaintiffs' Amended Complaint aver as follows:
1.-3. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of averments set forth
in Paragraphs I through 3 of the Plaintiffs' Amended Complaint, and, therefore, said averments are
denied.
4. Admitted.
5. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraph 5 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
6. Admitted, except that Daniel Fox's current address IS 14 Meadow View
Drive, Ephrata, 17522, Lancaster County, Pennsylvania.
7. Denied as stated. It is admitted that Land O'Lakes, Inc. (hereinafter "LOL")
operated a diary processing plant at Mt. Holly Springs, Cumberland County, Pennsylvania, at
which it received tank truck loads of raw milk for processing. With respect to any remaining
averments set forth in Paragraph 7 of Plaintiffs' Amended Complaint, after reasonable
investigation, the Answering Defendants are without know\(:dge or information sufficient to
form a belief as to the truth of those averments and, therefore, said averments are denied.
8. Denied as stated. It is admitted that Joel Martin (hereinafter "Martin") is a
dairy farmer. It is denied that he had a contract to sell all of his milk product to Cleveland.
9. Denied as stated. It is admitted that Cloverlimd is a fluid milk dairy processor
and it is further admitted that it has engaged Clouse Trucking, Inc. ("Clouse Trucking") to pick
up milk from certain producers, including Martin, and to deliv(:r the raw milk to its own or other
dairy plants. To the extent Paragraph 9 of the Plaintiffs' Am(mded Complaint avers or implies
that Cloverland engaged Clouse Trucking to transport the milk at issue to LOL, said averment or
implication is specifically denied. Any remaining averments set forth in Paragraph 9 of the
Plaintiffs' Amended Complaint are denied and at issue pursuant to Rule 1029(e) of the
Pennsylvania Rules of Civil Procedure.
10. Admitted upon information and belief.
11. Denied. It is specifically denied that the Answering Defendants knew or
should have known that for a period of time immediately prior to August 6, 2001, Martin had
2
halted milk shipments because of the presence of antibiotics in Martin's raw milk. The
averments set forth in Paragraph I I are also denied as conclusions of law.
12. Admitted in part and denied in part. It is admitted that on or about
August 6, 2001, 1. E. Speidel, an employee of Clouse Trucking, operating a tank truck owned by
Clouse Trucking, picked up a load of raw milk from the farm tank of Martin. It is specifically
denied that the milk was picked up on behalf of Cloverland, and the Plaintiffs' characterization
of the milk as "CloverIand Milk" is also specifically denied. To the contrary, it is believed and
therefore averred that the milk was picked up on behalf of DMS. With respect to any remaining
averments set forth in paragraph 12 of the Plaintiffs' Amended Complaint, after reasonable
investigation, the Answering Defendants are without knowkdge or information sufficient to
form a belief as to the truth of those averments and, therefore, said averments are denied.
13. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in paragraph I3 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
14. Admitted upon information and belief.
15. Denied. It is specifically denied that any CloverIand milk was in the Clouse
truck, and it is further denied that Clouse Trucking delivered any CloverIand milk to the Lehigh
Valley Dairy processing plant in Schuylkill Haven, Pennsylvania. With respect to any remaining
averments set forth in paragraph 15 of the Plaintiffs' Amended Complaint, after reasonable
investigation, the Answering Defendants are without knowledge or information sufficient to
form a belief as to the truth of those averments and, therefore, said averments are denied.
3
16.-17. Denied. The averments set forth in paragraphs 16 and 17 of the Plaintiffs'
Amended Complaint constitute conclusions of law to which no response is required. To the
extent a response is required, the characterization and summary of the contents of the Pasteurized
Milk Ordinance are denied because the characterization/summary is incomplete and said
ordinance, being a written document, speaks for itself.
18. Admitted.
19.-21. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraphs 19-21 of the Plaintiffs' Amended Complaint and, therefore, said averments
are denied.
22. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraph 22 of the Plaintiffs' Amended Complaint lmd, therefore, said averments are
denied. By way of further answer, it is specifically denied that the milk was CloverIand milk.
23. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraph 23 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
24. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
4
forth in Paragraph 24 of the Plaintiffs' Amended Complaint fmd, therefore, said averments are
denied.
25. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraph 25 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
26. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraph 26 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
27. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraph 27 of the Plaintiffs' Amended Complaint fmd, therefore, said averments are
denied.
28.-29. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraphs 28-29 of the Plaintiffs' Amended Complaint and, therefore, said averments
are denied.
30. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
5
forth in Paragraph 30 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied. It is specifically denied that the milk at issue was ClovllrIand milk.
31. Denied. The averments set forth in Paragraph 31 of the Plaintiffs' Amended
Complaint constitute conclusions of law to which no response is required. To the extent a
response is required, it is denied that dairy industry custom and practice common throughout
Pennsylvania and Maryland is that the dairy handler of a producer whose milk causes a
commingled load to be rejected is responsible for the disposition of the rejected milk. It is
further denied that the milk at issue was CloverIand milk and that CloverIand was responsible for
disposition ofthe rejected milk.
32.-34. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth Paragraphs 32-34 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
35. Admitted.
36. Denied. It is specifically denied that Fox (:reated a new delivery receipt for
the milk and/or forged the signature of 1. E. Speidel (hereinafter "Speidel"). After reasonable
investigation, the Answering Defendants are without knowledge or information sufficient to
form a belief as to the truth of the remaining averments set forth in Paragraph 36 of the
Plaintiffs' Amended Complaint and, therefore, said averments !Ire denied.
37. Denied. It is specifically denied that Fox also created a new delivery receipt
for the DMS Producers (hereafter "DMS") milk and it is further denied that Fox forged the
6
signature of Speidel who had picked up the DMS milk from producers. With respect to any
remaining averments set forth in Paragraph 37 of the Plaintiffs' Amended Complaint, after
reasonable investigation, the Answering Defendants are without knowledge or information
sufficient to form a belief as to the truth of those averments and, therefore, they are denied.
38. Denied as stated. It is admitted that Fox sought and obtained permission from
L VD to open the lid of the rear compartment of the tank tm~k to obtain a sample for further
testing. It is denied that he removed an antibiotics tag placed there or anywhere else by L VD.
With respect to any remaining averments in paragraph 38 of the Plaintiffs Amended Complaint,
after reasonable investigation, the Answering Defendants are without knowledge or information
sufficient to form a belief as to the truth of those averments and, therefore, they are denied.
39.-40. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraphs 39 and 40 of the Plaintiffs' Amended Complaint and, therefore, said
averments are denied.
41. Admitted.
42. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraph 42 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
43. Denied. It is specifically denied that Fox directed that the milk be delivered to
the LOL Holly Plant. With respect to any remaining averments set forth in Paragraph 43 of the
7
Plaintiffs' Amended Complaint, after reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of those averments
and, therefore, said averments are denied.
44. Denied. It is specifically denied that Fox directed the driver of the truck
delivering the milk to present fictitious CloverIand and DMS receipts to LOL. With respect to
any remaining averments set forth in Paragraph 44 of the Plaintiffs' Amended Complaint, after
reasonable investigation, the Answering Defendants are without knowledge or information
sufficient to form a belief as to the truth of those averments ~md, therefore, said averments are
denied.
45.-49. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraphs 45-49 of the Plaintiffs' Amended Complaint and, therefore, said averments
are denied. By way of further answer, it is specifically denied that CloverIand and Fox
manufactured fictitious receipts at any time relevant hereto and that they directed anyone to take
the milk to LOL. It is admitted that because Fox did not know or have any reason to believe that
the milk was being taken to LOL, he did not inform LOL that the milk had failed a test.
50. Denied. It is specifically denied that Fox made any fictitious statements or
prepared or created any fictitious receipts, as alleged or implied. With respect to any remaining
averments set forth in Paragraph 50 of the Plaintiffs' Amended Complaint, after reasonable
investigation, the Answering Defendants are without knowll~dge or information sufficient to
form a belief as to the truth of those averments and, therefore, said averments are denied.
8
5 I . Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraph 51 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
52. Denied. The averments set forth in Paragraph 52 of the Plaintiffs' Amended
Complaint are denied as conclusions of law. By way of furtht:r answer, it is specifically denied
that Cloverland had the milk delivered to LOL and that it sold the milk to LOL. The averments
are also denied because after reasonable investigation, the Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth of the averments set forth in
Paragraph 52 of the Plaintiffs' Amended Complaint and, thereDJre, said averments are denied.
53.-56.
After reasonable investigation, the Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth of the averments set forth in
Paragraphs 53-56 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
COUNT I
LAND O'LAKES. INC. v. CLOVERLAND DAIRY UMITED PARTNERSHIP
COMMON LAW BREACH OF ORAL OR IM]~LIED CONTRACT
57. Paragraphs I-56 hereof are incorporated herein by reference as if set forth in
full.
58. Denied. It is specifically denied that the raw milk which is the subject of the
within cause of action was delivered to LOL on behalf of CloverIand.
9
59. Denied. It is specifically denied that condemned milk was delivered to LOL
for the purpose of offering the milk for sale by CloverIand to LOL.
60. Denied. Because the Plaintiffs have failed to specifically identify by name or
adequate description, the "authorized officers, agents, employetls, servants, or representatives" of
CloverIand referred to in Paragraph 60 of the Plaintiffs' Amended Complaint, the Answering
Defendants are unable to adequately respond to this averment and, therefore, it is deemed denied.
By way of further answer, it is specifically denied that Cloverland misrepresented the condition of
any raw milk delivered on its behalf to LOL. With respect to any remaining averments set forth in
Paragraph 60 of the Plaintiffs' Amended Complaint, after reasonable investigation, the Answering
Defendants are without knowledge or information sufficient to form a belief as to the truth of those
averments and, therefore, said averments are denied.
61. Denied. The averments set forth in Paragraph 6 I of the Plaintiffs' Amended
Complaint constitute conclusions of law to which no response is required. It is further denied that
Cloverland delivered or is responsible for the delivery of any raw milk to the Plaintiffs that was
prohibited by the PMO from use in products for human consumption.
62.-63. Denied as stated. It is admitted that in general CloverIand knew that LOL
used raw milk for human consumption and that it commingled milk from different sources. It is
specifically denied that the Answering Defendants delivered or arranged for the delivery of raw
milk to LOL that was not fit for human consumption and that would be commingled with other
milk.
64. Denied. It is denied that at the time of the aforementioned agreement was
entered into, it was within the contemplation of the parties that if any milk prohibited from use in
10
products for human consumption was provided by CloverIand and was subsequently
commingled with other raw milk of LOL, LOL would suffer damages in that the entire tank of
such commingled milk would not be suitable for human consumption and would need to be
destroyed. By way of further answer, the Answering Defendants did not deliver or arrange for
the delivery of the milk to the Plaintiffs.
65. Denied. It is specifically denied that Cloverland breached any agreement with
LOL in connection with the delivery of raw milk for the reasons set forth in Paragraphs 1-64
hereof, which are incorporated herein by reference as if set forth in full.
66. Denied. It is specifically denied that CloverIand breached any contract with
LOL for the reasons set forth in Paragraphs I -65 hereof, which are incorporated herein by
reference as if set forth in full. With respect to any remaining averments set forth in
Paragraph 66 of the Plaintiffs' Amended Complaint, aft~:r reasonable investigation, the
Answering Defendants are without knowledge or information sufficient to form a belief as to the
truth of any remaining averments and, therefore, said averments are denied.
WHEREFORE, Defendants, CloverIand Dairy Limit,:d Partnership and Daniel Fox,
request this Honorable Court to enter judgment in their favor, dismiss the Plaintiffs' Amended
Complaint with prejudice, and award such other and further rdief as the Court deems just and
proper.
11
COUNT II
LAND O'LAKES. INC. v. CLOVERLAND DAIRY LIMITED PARTNERSHIP
BREACH OF CONTRACT UNDER THE
PENNSYL VANIA UNIFORM COMMERCIAL CODE
67. Paragraphs 1-66 hereof are incorporated herein by reference as if set forth in
full.
68. Denied. The averments set forth in Paragraph 68 of the Plaintiffs' Amended
Complaint constitute conclusions of law to which no response is required. To the extent a
response is required, it is specifically denied that CloverIand sold the milk to LOL.
69. Denied. It is specifically denied that LOL received and accepted raw milk
from CloverIand on the conduct and/or assurance from Clovedand that such raw milk was not
prohibited from use in products for human consumption. By way of further answer, paragraph
68 hereof is incorporated herein by reference as if set forth in full.
70.-71.
Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraphs 70 and 71 of the Plaintiffs' Amended Complaint and, therefore, said
averments are denied. By way of further answer, it is speciJically denied that the Answering
Defendants breached any contract with Plaintiffs.
WHEREFORE, Defendants, Cloverland Dairy Limitl~d Partnership and Daniel Fox,
request this Honorable Court to enter judgment in their favor" dismiss the Plaintiffs' Amended
Complaint with prejudice, and award such other and further relief as the Court deems just and
proper.
12
COUNT III
LAND O'LAKES. INC. v. CLOVERLAND DAIRY LIMITED PARTNERSHIP
BREACH OF AN IMPLIED DUTY OF GOOD FAITH
72. Paragraphs 1-71 hereof are incorporated herein by reference as if set forth in
full.
73. Denied. The averments set forth in Paragraph 73 of the Plaintiffs' Amended
Complaint constitute conclusions ofIaw to which no response is required.
74. Denied. It is specifically denied that Cloverland breached a duty of good faith
by delivering raw milk that it knew or should have known was prohibited for use in products for
human consumption.
75. Denied. It is specifically denied that Cloverland violated an implied duty of
good faith and that LOL suffered any damages as a result of conduct of Cloverland.
WHEREFORE, Defendants, Cloverland Dairy Limitl~d Partnership and Daniel Fox,
request this Honorable Court to enter judgment in their favor, dismiss the Plaintiffs' Amended
Complaint with prejudice, and award such other and further relief as the Court deems just and
proper.
COUNT IV
LAND O'LAKES. INC. v. CLOVERLAND DAIRY LIMITED PARTNERSHIP
BREACH OF AN IMPLIED WARRANTY OF MERCHANTABILITY
76. Paragraphs 1-75 hereof are incorporated herein by reference as if set forth in
full.
13
77. Denied as stated. It is admitted that CloverIand is in the business of selling
raw milk or milk products. It is denied that that it has more specialized knowledge or skill with
respect to the processing of milk, including, but not limit,ed to, milk suitable for human
consumption than the Plaintiffs.
78. Denied. It is specifically denied that Cloverland provided or sold to the
Plaintiffs at anytime raw milk that was not merchantable or fit for human consumption, and it is
further denied that CloverIand sold the milk in question to the Plaintiffs.
79. Denied. It is specifically denied that Clov,erland provided raw milk to the
Plaintiffs at anytime that was not merchantable or fit for the ordinary purpose for which it was to
be used, and it is further denied that CloverIand sold or provided to the Plaintiffs raw milk that
had failed both a confirmatory test and presumptive test for antibiotics.
80. Denied as stated. It is admitted that CloverIand received notice from LOL
regarding raw milk that it said was not suitable for human consumption, but it is specifically
denied that CloverIand supplied the milk to the Plaintiffs as alleged.
81. Denied. It is specifically denied that CloverIancl breached any implied warranty
of merchantability and that LOL suffered any damages as a resullt of conduct of CloverIand.
WHEREFORE, Defendants, CloverIand Dairy Limited Partnership and Daniel Fox,
request this Honorable Court to enter judgment in their favor, dismiss the Plaintiffs' Amended
Complaint with prejudice, and award such other and further relief as the Court deems just and
proper.
14
COUNT V
LAND O'LAKES. INC. v. CLOVERLAND DAIRY LIMITED PARTNERSHIP
BREACH OF AN IMPLIED WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE
82. Paragraphs I -8 I hereof are incorporated herein by reference as if set forth in
full.
83. Denied as stated. It is admitted that CloverIand is in the business of selling
raw milk or milk products. It is denied that that it has more specialized knowledge or skill with
respect to the processing of milk, including, but not limited to, milk suitable for human
consumption than the Plaintiffs.
84. Denied as stated. It is admitted that Cloverland knew in general that raw milk
that was sold by CloverIand to the Plaintiffs could be used for human consumption. By way of
further answer, to the extent that Paragraph 84 of the Plaintiffs' Amended Complaint avers or
implies that CloverIand sold to LOL raw milk that it knew was not fit for human consumption or
that CloverIand breached any contract with the Plaintiffs, said averments or implications are
denied. It is further denied that there was any contract between CloverIand and LOL with
respect to the milk at issue in this case.
85. Denied. The averments set forth in ParagreLph 85 of the Plaintiffs' Amended
Complaint constitute conclusions of law to which no response is required. To the extent a
response is required, it is specifically denied that CloverIand provided raw milk to LOL that was
not fit for human consumption and that it provided to LOL the milk at issue in this case.
15
86. Denied as stated. It is admitted that Cloverland received notice from LOL
regarding raw milk that it said was not suitable for human consumption, but it is specifically
denied that CloverIand supplied the milk to the Plaintiffs as alleged.
WHEREFORE, Defendants, CloverIand Dairy Limit(:d Partnership and Daniel Fox,
request this Honorable Court to enter judgment in their favor, dismiss the Plaintiffs' Amended
Complaint with prejudice, and award such other and further relief as the Court deems just and
proper.
COUNT VI
LAND O'LAKES. INC. v. CLOUSE TRUCKING. INC.. CLOVERLAND DAIRY
LIMITED PARTNERSHIP. J. EDWARD CLOUSE and DANIEL FOX
FRAUDULENT MISREPRESENTATION
87. Paragraphs I -86 hereof are incorporated herein by reference as if set forth in
full.
88. Denied. The averments set forth in Paragraph 88 of the Plaintiffs' Amended
Complaint constitute conclusions of law to which no response is required. To the extent a
response is required, it is specifically denied that Answering Defendants made any material
representations to LOL regarding "the raw milk" upon which the Plaintiffs reasonably relied as
the Answering Defendants did not deliver or arrange for the delivery of the milk at issue to the
Plaintiffs.
89. Denied as stated. It is specifically denied that J. Edward Clouse was acting on
behalf of Answering Defendants or as an authorized agent, s{:rvant, or employee acting within
the scope of his employment with the Answering Defendants at anytime. It, however, is
16
admitted that Fox was an employee of CloverIand, but it is denied that he had the milk at issue
delivered to the Plaintiffs. With respect to any remaining averments set forth in Paragraph 89 of
the Plaintiffs' Amended Complaint, after reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of those averments
and, therefore, said averments are denied.
90. Denied. It is specifically denied that Fox made any false representations
regarding the delivery of the truck load of milk to LOL and it is further denied that he was
reckless in any manner. With respect to any remaining avemlents set forth in Paragraph 90 of
the Plaintiffs' Amended Complaint, after reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of those averments
and, therefore, said averments are deemed denied.
91. Denied. It is specifically denied that the Answering Defendants made any
representations with the intent of misleading LOL into relying upon such representations so that
it would accept the raw milk.
92. Denied. It is specifically denied that LOL justifiably relied upon any false
statements or misrepresentations made by the Answering Defendants regarding the delivery of
"the milk."
93. Denied. The averments set forth in Paragraph 93 of the Plaintiffs' Amended
Complaint constitute conclusions of laws to which no response is required. To the extent a
response is required, it is specifically denied that the Answering Defendants' conduct was
outrageous in that Defendants each had actual knowledge that the milk was prohibited from use
in products for human consumption or acted with reckless indifference of that knowledge and
17
caused the milk to be delivered to LOL in conscious disregard or indifference to the risk the milk
would present by itself or when commingled with other raw milk intended for use in products for
human consumption. By way of further answer, paragraphs I -92 hereof are incorporated herein
by reference as if set forth in full.
94.-95.
Denied. It is specifically denied that the Answering Defendants made any
misrepresentations and that LOL relied on any misrepresentations of the Answering Defendants
regarding the delivery of the load of milk. It is further denied that the conduct of the Answering
Defendants caused or contributed to any losses allegedly suffered by the Plaintiffs and it is
further denied that the Answering Defendants are legally responsible for any of the Plaintiffs
alleged losses.
WHEREFORE, Defendants, Cloverland Dairy Limited Partnership and Daniel Fox,
request this Honorable Court to enter judgment in their favor, dismiss the Plaintiffs' Amended
Complaint with prejudice, and award such other and further relief as the Court deems just and
proper.
COUNT VII
LAND O'LAKES. INC. v. CLOUSE TRUCKING INC.
and CLOVERLAND DAIRY LIMITED PARTNERSHIP
VICARIOUS LIABILITY
96. Paragraphs I -95 hereof are incorporated herein by reference as if set forth in
full.
97. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief ~LS to the truth of the averments set
18
forth in Paragraph 97 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
98. Denied. It is specifically denied that CloverIand knew or should have known
that its authorized agents, servants, or employees, including, but not limited to Fox, were likely
to commit any acts of fraud as alleged in Plaintiffs' Amended Complaint and it is further alleged
that neither Fox nor any authorized agent, servant, or employee of the Answering Defendants
committed any acts of fraud as alleged in Count VI of the Plaintiffs' Amended Complaint. By
way of further answer, paragraphs 87 through 95 hereof are incorporated herein by reference as
if set forth in full.
99. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraph 99 of the Plaintiffs' Amended Complaint ~md, therefore, said averments are
denied.
100. Denied. Because the Plaintiffs have failed to identify by name or adequate
description, the "authorized agent, servants, or employees" of CloverIand, other than Fox, and
because the Plaintiffs have failed to specifically allege what any alleged agent, servant, or
employee did and when, other than a reference to "at all times relevant hereto," the Answering
Defendants are unable to respond to these averments and, therefore, said averments are denied.
It is admitted that Fox was acting within the scope of his employment with CloverIand, but it is
specifically denied that he made any misrepresentations to the Plaintiffs regarding the load of
milk and that his conduct is the legal or proximate cause of any of the Plaintiffs' alleged
damages.
19
10 I. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraph 101 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
102. Denied. It is specifically denied that any of CloverIand's agent, servants, or
employees, including, but not limited to Fox, committed fraud" that their conduct was the direct
or proximate cause of any of the Plaintiffs' damages as alleged, and that CloverIand is
vicariously liable for any alleged losses of LOL.
WHEREFORE, Defendants, CloverIand Dairy Limitl:d Partnership and Daniel Fox,
request this Honorable Court to enter judgment in their favor, dismiss the Plaintiffs' Amended
Complaint with prejudice, and award such other and further relief as the Court deems just and
proper.
COUNT VIII
LAND O'LAKES. INC. v. CLOUSE TRUCKING INC.. CLOVERLAND DAIRY
LIMITED PARTNERSHIP. J. EDWARD CLOUSE and DANIEL FOX
NEGLIGENT MISREPRESENTATION
103. Paragraphs 1- I 02 hereof are incorporated h,:rein by reference as if set forth in
full.
104. Denied. The averments set forth in Paragraph 104 of the Plaintiffs' Amended
Complaint constitute conclusions of law to which no response is required. To the extent a
response is required, it is specifically denied that the Answering Defendants supplied milk to
LOL that was prohibited from use in products for human consumption.
20
105. Denied. It is specifically denied that the Answering Defendants breached any
duty owed to LOL by supplying any raw milk that was prohibited from use in products for
human consumption.
106. Denied. It is specifically denied that the Answering Defendants made
representations as aforementioned and it is further denied that the Answering Defendants made
any representations with the intent that LOL would rely upon them.
107. Denied. It is specifically denied that the Answering Defendants failed to
exercise reasonable care or competence in connection with communications to the Plaintiffs and
the condition of any raw milk delivered to them.
108. Denied. The averments set forth in Paragraph 108 of the Plaintiffs' Amended
Complaint are denied for the reasons set forth in Paragraphs 87-95, 106, and 107 hereof, which
are incorporated herein by reference as if set forth in full.
109.-110. Denied. It specifically denied that that Answering Defendants made any
negligent misrepresentations and it is further denied that their conduct was the proximate or legal
cause of any of the Plaintiffs' alleged damages. With respect to any remaining averments set
forth in Paragraphs 109 and 110 of the Plaintiffs' Amended Complaint, after reasonable
investigation, the Answering Defendants are without knowil:dge or information sufficient to
form a belief as to the truth of those averments and, therefore, said averments are denied.
WHEREFORE, Defendants, CloverIand Dairy Limited Partnership and Daniel Fox,
request this Honorable Court to enter judgment in their favor, dismiss the Plaintiffs' Amended
21
Complaint with prejudice, and award such other and further rdief as the Court deems just and
proper.
COUNT IX
LAND O'LAKES. INC. v. CLOUSE TRUCKING INC.
and CLOVERLAND DAIRY LIMITED PARTNERSHIP
VICARIOUS LIABILITY
I I 1. Paragraphs 1-1 10 hereof are incorporated herein by reference as if set forth in
full.
112. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraph 1 12 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
113. Denied. It is specifically denied that Cloverland knew or should have known
that its authorized agents, servants, or employees, including, but not limited to Fox, were likely
to make any negligent misrepresentations as alleged in Plaintiffs' Amended Complaint and it is
further alleged that neither Fox nor any authorized agent, servant, or employee of the Answering
Defendants made any negligent misrepresentations.
114. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraph I 14 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
22
115. Denied. Because the Plaintiffs have failed to identify by name or adequate
description, the "authorized agent, servants, or employees" of CloverIand, other than Fox, and
because the Plaintiffs have failed to specifically allege what any alleged agent, servant, or
employee did and when, other than a reference to "at all times relevant hereto," the Answering
Defendants are unable to respond to these averments and, therefore, said averments are denied.
It is admitted that Fox was acting within the scope of his employment with CloverIand, but it is
specifically denied that he made any misrepresentations to th,~ Plaintiffs regarding the load of
milk and that his conduct is the legal or proximate cause of any of the Plaintiffs' alleged
damages.
116. Denied. After reasonable investigation, the Answering Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averments set
forth in Paragraph 116 of the Plaintiffs' Amended Complaint and, therefore, said averments are
denied.
117. Denied. It is specifically denied that any of CloverIand's agent, servants, or
employees, including, but not limited to Fox, made any negligent misrepresentations, that their
conduct was the direct or proximate cause of any of the Plaintiffs' damages as alleged, and that
CloverIand is vicariously liable for any alleged losses of LOL.
WHEREFORE, Defendants, CloverIand Dairy Limit,~d Partnership and Daniel Fox,
request this Honorable Court to enter judgment in their favor, dismiss the Plaintiffs' Amended
Complaint with prejudice, and award such other and further relief as the Court deems just and
proper.
23
COUNT X
LAND O'LAKES. INC. v. CLOVERLAND DAIRY LIMITED PARTNERSHIP
AND CLOUSE TRUCKING INC.
NEGLIGENCE
I 18. Paragraphs 1- I 17 hereof are incorporated herein by reference as if set forth in
full.
II 9. Denied. It is specifically denied as alleged or implied that CloverIand
delivered or arranged for the delivery to LOL of the milk at issue in this case. By way of further
answer, Paragraphs I - I 18 hereof are incorporated herein by refe'rence as if set forth in full.
120. Denied. It is specifically denied as alleged or implied that CloverIand
delivered or arranged for the delivery to LOL of the milk at issue in this case. By way of further
answer, Paragraphs 1-1 19 hereof are incorporated herein by refe,rence as if set forth in full.
121. Denied. The averments set forth in Paragraph 121 of the Plaintiffs' Amended
Complaint constitute conclusions of law to which no response is required. To the extent a
response is required, said averments are denied for the reasons set forth in Paragraphs I - I 20
hereof, which are incorporated herein by reference as if set forth in full.
122. Denied. The averments set forth in Paragraph 121 of the Plaintiffs' Amended
Complaint constitute conclusions of law to which no response is required. To the extent a
response is required, said averments are denied for the reasons set forth in Paragraphs I - I 2 I
hereof, which are incorporated herein by reference as if set forth in full.
123. Denied. It is specifically denied that Cloverland breached any duties owed to
LOL in connection with the delivery of the milk at issue in this case. By way of further answer,
Paragraphs I - I 22 hereof are incorporated herein by reference as if set forth in full.
24
124. Denied. It is specifically denied that Cloverland breached any duties owed to
LOL in connection with the delivery of the milk at issue in this case. By way of further answer,
Paragraphs I - I 23 hereof are incorporated herein by reference as if set forth in full.
125. Denied. It is specifically denied that CloverIand delivered the milk at issue in
this case to LOL, and it is further denied that it breached any duties owed to LOL and that it is
liable to LOL or legally responsible for any of its alleged damages, which are also denied. By
way of further answer, Paragraphs 1-124 hereof are incorporaLted herein by reference as if set
forth in full.
WHEREFORE, Defendants, CloverIand Dairy Limit"d Partnership and Daniel Fox,
request this Honorable Court to enter judgment in their favor, dismiss the Plaintiffs' Amended
Complaint with prejudice, and award such other and further rdief as the Court deems just and
proper.
COUNT XI
DMS v. CLOUSE TRUCKING INC.
BREACH OF CONTRACT IMPLIED IN F A.CT OR IN LAW
126. Paragraphs 1-125 hereof are incorporated herein by reference as if set forth in
full.
127.-132. Denied. The averments set forth in Paragraphs 127-132 of the Plaintiffs'
Amended Complaint are directed to parties other than the Answering Defendants and, therefore,
no response is required. To the extent a response is required, said averments are denied for the
reasons set forth in paragraphs 1-126 hereof which are incorporated herein by reference as if set
forth in full.
25
WHEREFORE, Defendants, CloverIand Dairy Limited Partnership and Daniel Fox,
request this Honorable Court to enter judgment in their favor, dismiss the Plaintiffs' Amended
Complaint with prejudice, and award such other and further rdief as the Court deems just and
proper.
COUNT XII
DMS v. CLOUSE TRUCKING INC.
AND CLOVERLAND DAIRY LIMITED PARTNERSHIP
NEGLIGENCE
133. Paragraphs 1-132 hereof are incorporated herein by reference as if set forth in
full.
134. Denied. The averments set forth in Paragraph 134 of the Plaintiffs' Amended
Complaint constitute conclusions of law to which no response is required. To the extent
Paragraph 134 avers or implies that Cloverland breached any duties owed to DMS, said
averments or implications are specifically denied for the reasons set forth in Paragraphs 1-133
hereof, which are incorporated herein by reference as if set forth in full. It is further denied that
CloverIand sold any contaminated milk to DMS.
135. Denied. It is specifically denied that CloverIand was negligent and it is also
denied that it breached any duty owed to DMS. With respec:t to the remaining averments set
forth in Paragraph 135 of the Plaintiffs' Amended Complaint, after reasonable investigation, the
Answering Defendants are without knowledge or information sufficient to form a belief as to the
truth of those averments and, therefore, said averments are denied. By way of further answer,
Paragraph 134 hereof is incorporated herein by reference as if set forth in full.
26
136. Denied. The averments set forth in Paragraph 136 of the Plaintiffs' Amended
Complaint constitute conclusions of law to which no response is required. To the extent a
responses is required, it is specifically denied that as a direct and proximate result of the
commingling of the CloverIand milk with the DMS milk by Clouse Trucking and/or CloverIand,
the DMS milk became unsanitary and, therefore, unfit for use in dairy products for human
consumption. By way of further answer, it is specifically denied that Cloverland is legally
responsible for any the losses alleged by Plaintiffs and that its conduct was the direct or
proximate cause of any of the Plaintiffs' alleged losses. By way of further answer, Paragraph
135 hereof is incorporated herein by reference as if set forth in full.
13 7. Denied. It is specifically denied that the Answering Defendants caused any
contamination and it is further denied they are legally liabke or responsible for any of the
Plaintiffs' alleged damages. With respect to any remaining ave:rments set forth in Paragraph 137
of the Plaintiffs' Amended Complaint, after reasonable investigation, the Answering Defendants
are without knowledge or information sufficient to form a belief as to the truth of those
averments and, therefore, said averments are denied. By way of further answer, Paragraph 136
hereof is incorporated herein by reference as if set forth in full.
138. Denied. The averments set forth in Paragraph 138 of the Plaintiffs' Amended
Complaint are specifically denied for the reasons set forth in Paragraphs 133-137 hereof which
are incorporated herein by reference as if set forth in full.
WHEREFORE, Defendants, CloverIand Dairy Limit'ld Partnership and Daniel Fox,
request this Honorable Court to enter judgment in their favor, dismiss the Plaintiffs' Amended
27
Complaint with prejudice, and award such other and further rdief as the Court deems just and
proper.
NEW MATTER
The Defendants further aver as follows:
139. Paragraphs 1-138 hereof are incorporated herein by reference as if set forth in
full.
140. The Plaintiffs' Amended Complaint fails to state a claim upon which relief
can be granted.
141. For the purposes of preserving the same, and subject to further discovery, all
or some of Plaintiffs' claims are or may be time barred due to the expiration of the applicable
statute of limitations.
142. For purpose of preserving the same, and subject to discovery, all or some of
Plaintiffs' claims may be barred pursuant to the affirmative defenses of release, offset, or accord
and satisfaction.
143. At no time relevant hereto was J. Edward Clouse (hereinafter "Mr. Clouse")
an agent or servant or employee acting on behalf of either of the Answering Defendants.
144. Plaintiffs' damages and losses, if any, wen~ not caused by the conduct of or
negligence of Answering Defendants, but rather were caused by pre-existing conditions and/or
causes beyond the control of the Answering Defendants and, therefore, Plaintiffs may not
recover against the Answering Defendants.
28
145. The acts or omissions of others, over whom the Answering Defendants had no
control and for whom the Answering Defendants are not liable, may have constituted intervening
and/or superseding causes of the damages alleged to have been sustained by Plaintiffs, and
Answering Defendants cannot, pursuant to Pennsylvania law, be held liable for the alleged
damages.
146. The incident and/or damages described in Plaintiffs' Amended Complaint
were caused or contributed to by Plaintiffs and the Plaintiffs claims are or may be barred in
whole or in part by the doctrines of comparativelcontributory negligence and/or the doctrine of
assumption of the risk.
147. Discovery may reveal that the Plaintiffs failed to mitigate their damages.
148. Plaintiffs' losses and damages, if any, were not caused by the negligence or
conduct of the agents, servants, or employees of CloverIand.
149. The milk that was picked up on or about August 6, 2001, by 1. E. Speidel of
Clouse Trucking from Joel Martin was picked up on behalf of DMS for delivery to the Lehigh
Valley Dairy.
WHEREFORE, Defendants, CloverIand Dairy Limitt:d Partnership and Daniel Fox,
request this Honorable Court to enter judgment in their favor, dismiss the Plaintiffs' Amended
Complaint with prejudice, and award such other and further f1~lief as the Court deems just and
proper.
29
HAWKE MCKEON SNISCAK & KENNARD LLP
;~ /.-
;J?J. Sf .kJAU L
By: Steven D. Snyder {/
Attorney J.D. No. 34344
Hawke McKeon Sniscall & Kennard LLP
100 North Tenth Street
PO Box 1778
Harrisburg, PA 17105-1778
(7 I 7) 236-1300
Attorneys for Defendants.
Cloverland Dairy Limited Partnership and
Daniel Fox
DATED: July 16,2004
30
.
VERIFICATION
I verify that the statements made in the foregoing Answer and New Matter which are
within the personal knowledge of the undersigned, are true and correct, and as to the facts based
on the information of others, the undersigned, after diligent inquiry, believes to be true. And
further, I have signed this Verification on the recommendation of our attorneys, who advised me
that the allegations and language in this document are required legally to raise issues for
resolution at trial, by the Court, or by continuing investigation and preparation for trial. I
understand that some of these allegations may prove inappropriate after investigation and trial
preparation are complete and I leave determination of these matters to our attorneys on their
advice.
I understand that all statements herein are made subject to the penalties of 18 Pa. C.S.A.
94904, relating to unsworn falsification to authorities. /'/'
~~
Lawrence C. Webster, General Manager
CloverIand Dairy Limited Partnership
DATED: 7.\.... ,t"J.:;\ / I.. I ZOO '-(
) U
VERIFICATION
I verify that the statements made in the foregoing Answer and New Matter which are
within the personal knowledge of the undersigned, are true and correct, and as to the facts based
on the information of others, the undersigned, after diligent inquiry, believes to be true. And
further, I have signed this Verification on the recommendation of our attorneys, who advised me
that the allegations and language in this document are required legally to raise issues for
resolution at trial, by the Court, or by continuing investigation and preparation for trial. I
understand that some of these allegations may prove inappropriate after investigation and trial
preparation are complete and I leave determination of these matters to our attorneys on their
advice.
I understand that all statements herein are made subject to the penalties of 18 Pa. C.S.A.
94904, relating to unsworn falsification to authorities.
Ea~ 7-
'1 ~
Dante Fox
DATED: GL~ 1(" )Zcoi
CERTIFICATE OF SERVIC1B;
I hereby certify that I am this day serving the foregoing document upon the persons and
in the manner indicated below.
Via First Class Mail:
Patrick J. Reilly, Esquire
Gross McGinley LaBarre & Eaton LLP
33 South 7th Street
PO Box 4060
Allentown, PA 18105-4060
Counsel for Plaintiff Land O'Lakes, Inc.
and Dairy Marketing Services LLC
John A. Statler, Esquire
Forry, Ullman, Ullman & Forry, P.C.
2000 Linglestown Road
Suite 301
Harrisburg, PA 17110
Counsel for Defendants Clouse Trucking,
Inc. and J.. Edward Clouse
~J? Jmy/-
Steven D. Snyder
DATE: July 16,2004
--i
-<
C)
'.;
,,-.
.
-"
co;,
Cl
-'-1
:~i-;!
I
,C"
l:~
cr'.
--.-;,
.')
)
,on
~, ~
.1-,
******
SUMMONS IN CIVIL ACTION
TO: Clouse Trucking, Inc., 2075 Ritner Highway, Carlisle, PA 17013;
Green Spring Dairy Incorporated, 1635 Market Street, Philadelphia, PA 19103;
J. Edward Clouse, 2075 Ritner Highway, Carlisle, PA 17013; and
Daniel Fox, 22 Schoeneck Road, Ephrata, P A 17522
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED
AGAINST YOU.
DATE: "- )1.1 ~ ...,,_
11. 2.0~
C.bl1PoK er 08URT - CIVIL ISION
p.. '- ...l1..G..ac.rI-~
BY: LJAIJ~.. '2 ~C/l4"'~' r-
Deputy
W,IWDOXICLIENTSllol\c1ouse\00029077.DOC
2
AJ~~
If. 'ft.. !'\
- - 0'"
W "'0
l~-V
t; t';
;:r',{
. .
~r~ -
~~
',-,
/
(.>
John A. Statler, Esquire
Attorney 1. D. No. 43812
GOLDBERG, KATZMAN & SlllPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Defendants Clouse Trucking, Inc.
and 1. Edward Clouse
LAND 0' LAKES, INC.,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
CLOUSE TRUCKING, INC., GREEN : NO. 03-2782 CIVIL TERM
SPRING DAIRY, INCORPORATED,
J. EDWARD CLOUSE and DANIEL FOX, : JURY TRIAL DEMANDED
Defendants
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please enter the appearance of John A. Statler, Esquire, of Goldberg, Katzman and
Shipman, P.C., as attorney for Defendants Clouse Trucking, Inc. and J. Edward Clouse in the
above-captioned action.
DATE: (p 12-~ /03
97663.1
GOLDBERG, KATZMAN & SHIPMAN, P.c.
BY\~
John A. Statler, Esq .
Attorney J.D. No. 43812
~
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Defendants Clouse Trucking, Inc.
and J. Edward Clouse
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
-JL..VI-e-
~ u 'tv\,
day of
Harrisburg, Pennsylvania, with first-class postage prepaid on the
, 2003, addressed to the following:
Patrick J. Reilly, Esquire
Gross, McGinley, Labarre & Eaton, LLP
33 South Seventh Street
P. O. Box 4060
Allentown, PA 18105-4060
Green Spring Dairy, Inc.
1635 Market Street
Philadelphia, PA 19103
Mr. Daniel Fox
122 Shoeneck Road
Ephrata, PA 17522
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By IO~
Attorney I. D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Defendants Clouse Trucking, Inc.
and 1. Edward Clouse
.
".
(") Co) 0
c: W "n
S, <- .....
~g; c:: ri~~-n
I" :%
:r N -ni"'1
zr--- "Ce::'
- '-r ~
~'2" p--, '
'-~_:!\~-'
!;2C -0 r ".
._Co,:-n
~( ~ :c:c;;('':;
(-: C\ r:-;> -<en
;PC ,-,
-I
Z rv ~;
~ ,p '-<
SHERIFF'S RETURN - REGULAR
CASE NO: 2003-02782 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LAND O'LAKES INC
VS
CLOUSE TRUCKING INC ET AL
DAWN KELL
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS
was served upon
CLOUSE TRUCKING INC
the
DEFENDANT
, at 0925:00 HOURS, on the 18th day of June
, 2003
at 2075 RITNER HIGHWAY
CARLISLE, PA 17013
by handing to
BARBARA ICKES, SECRETARY,
ADULT IN CHARGE
a true and attested copy of WRIT OF SUMMONS
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
18.00
3.45
.00
10.00
.00
31. 45
.~~.;...< ~p
R. Thomas Kl ine ?~.
07/25/2003
GROSS MCGINLEY LABARRE
Sworn and Subscribed to before
By:
0~.-y\ J. ~~
Deputy Sheriff
me this 5~
day of
~ .;!o03 A.D.
() Q ~
~thonotary I~'
SHERIFF'S RETURN - REGULAR
CASE NO: 2003-02782 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LAND O'LAKES INC
VS
CLOUSE TRUCKING INC ET AL
DAWN KELL
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS
was served upon
CLOUSE J EDWARD
the
DEFENDANT
, at 0925:00 HOURS, on the 18th day of June
, 2003
at 2075 RITNER HIGHWAY
CARLISLE, PA 17013
by handing to
BARBARA ICKES, SECRETARY,
ADULT IN CHARGE
a true and attested copy of WRIT OF SUMMONS
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
6.00
.00
.00
10.00
.00
16.00
So Answers:
rJ.?2t:::'."'"4::7~
R. Thomas Kline
07/25/2003
GROSS MCGINLEY LABARRE
Sworn and Subscribed to before
By:
[)~ i. ~
Deputy Sheriff
me this 6'h day of
Ufb:2/.f1)3 A. D.
Q fh..#'o I Af.ld'J
/ rothonotary '7-"
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2003-02782 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LAND O'LAKES INC
VS
CLOUSE TRUCKING INC ET AL
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
GREEN SPRING DAIRY
INCORPORATED
but was unable to locate Them
in his bailiwick. He therefore
deputized the sheriff of PHILADELPHIA
County, Pennsylvania, to
serve the within WRIT OF SUMMONS
On July
25th , 2003 , this office was in receipt of the
attached return from PHILADELPHIA
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep Philadelphia
So
6.00
9.00
10.00
116.00
.00
141.00
07/25/2003
GROSS MCGINLEY
R. Thomas Kline
Sheriff of Cumberland County
LABARRE
Sworn and subscribed to before me
this
:J~ day of ~,.u..f
;}VV3 A.D.
(\ Q "TvI. ;p,,~ ~
'- /"-i'Prothonotary
In The Court of Common Pleas of Cumberlan~ County, Pennsylvania
'Land O'Lakes, Inc
~iouse Tru~iing, Inc et al
SERVE: Green Spring Dairy, Incorpor;,'l-ted
NO.
I
03-2782
Now,
June 17, 2003
, !, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of Philadelphia
County to execute this Writ, this
deputation being rnade at the request and risk of the Plaintiff.
?'p/~(
.~~".e~-,< ?:e.1:~~
Sheriff of Cumberland County, PA
Affidavit. of Service
Now, .0lltU ;;('1, ~ ,20 02:>, at ;(:~0 o'clock P M. served the
within _ Sv /11 mo f1 S
upon 3(ftVl ,spn n3 DOJ Y1j IJnC.
at \,")16 ~Q)(kLt c51, Sk l2\O,flvJ~ I~
byhandingto \2J:JSIC W.u\Sn
a
copy of the original
~ ",....."I
and made known to
n.e v
the contents thereof.
So answers,
~~~;:J
40d.0A"~~
5e ~~ty, PA
rver
Sworn and subscribed before
me this. ~ day of ;j(IhL- ,2017?
. .-Na~~-) \
SUSAN L. ROSENFELD, Notary Public
City of Phlladel hia, Phlla, County
My Commission ~J/i~~Mar9b Bk~Q9A
COSTS
SERVICE
MILEAGE
AFFIDA VIT
$
$
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2003-02782 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LAND O'LAKES INC
VS
CLOUSE TRUCKING INC ET AL
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
FOX DANIEL
but was unable to locate Him
in his bailiwick. He therefore
deputized the sheriff of LANCASTER
County, pennsylvania, to
serve the within WRIT OF SUMMONS
On July
25th , 2003 , this office was in receipt of the
attached return from LANCASTER
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep Lancaster Co
So answe
6.00
9.00
10.00
49.22
.00
74.22
07/25/2003
GROSS MCGINLEY
R. Thomas Kline
Sheriff of Cumberland County
LABARRE
Sworn and subscribed to before me
this
day of ~
a;A.D.
Q JvJP,.~ -to....j"'.
Prothonotar'y- r
,....
t>-
In The Court of Common Pleas of Cumberland County, Pennsylvania
Land O'Lakes, Inc
VS.
Clouse Trucking, Inc et al
Daniel Fox
SERVE :
No.
03-2782
Now,
June 17, 2003
, I, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of
Lancaster
County to execute this Writ, this
deputation being rnade at the request and risk of the Plaintiff.
.r~ed"<:..r~
Sheriff of Cumherland County, PA
Affidavit of Service
Now,
,20_, at
o'clock
M. served the
within
upon
at
by handing to
a
copy of the original
and made known to
the contents thereof.
So answers,
Sheriff of
County, PA
Sworn and subscribed before
me this _ day of ,20_
COSTS
SERVICE
MILEAGE
AFFIDAVIT
$
$
r
5329
Dr~
~.
"""
~Nt]1
SHERIFF'S OFFICE
50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17808-3480 . (717) 299-8200
SHERIFF SERVICE
PROCESS RECEIPT, and AFFIDAVIT OF RETURN
1 LMlWI~i1;AKES INC
PLEASE TYPE OR PRINT LEGIBLY.
DO NOT DETACH ANY COPIES.
2 COURT NuMBER
03-2782
3 DEFENDANT /SI
DAN!EL FOX
4 TYPE OF WRIT OR COMPLAINT
WRIT OF SUMMONS
SERVE {5 NAME OF INDIVIDUAL. COMPANY, CORPORATION, ETG, TO BE SERVED
.. ANIEL FOX
6 ADDRESS (Street or RFO, Apartment No" City, Bora. Twp, Slate and ZIP Code)
AT 122 SCHOENECK RD EPHRATA PA 17522
7 INDICATE UNUSUAL SERVICE: 0 DEPUTIZE 0 OTHER
Now. 20 __ . I. SHERIFF OF LANCASTER COUNTY. PA.. do hereby deputize the Sheriff of
County to execute this Writ and make return thereof according
to law. This deputation being made ,at the request and risk of the plaintiff.
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE:
SHE:RI~r o~ LANCASTER COUNTY
,
r.
CUMBERLAND CO
NOTE ONLY APPLlCA8LE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching a,ly properly under
within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person 01 levy or attachment, without liability on
the part of such deputy or the sheriff to any plaintiff herein lor any loss, destruction or removal 01 any such property before sherilf's sale thereol
9, SIGNATURE 01 ATTORNEY or ottler ORIGINATOR 110 TELEPHONE NUMBER 111 DATE
PATRICK REILLY GROSS MCGINLEY LABARRE & EA~N 610-820-5450 6/13/03
12, SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (ThiS area must be completed if notice is to be mailed)
CUMBERLAND CO SHERIFF'S OFFICE
:;:
H
'"
(}
tl
:-:
.,
"l
o
X
SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE
13 , k 'd I '1" '1 NAME of Authorized LCSO Deputy or Clerk 114 Date Received 1'5 ElI:piration/Hearing date
. ac now e ge recelp 0 "e Wrl r
o,complaonla.,ndicaledabove r ANNETTE WALTON (71 ~-3609 6.18.03 7/14/03
16 I hereby CERTIFY and RETURN that I 0 have personally served, ~egal evidence 01 service as shown In "Remarks", n have executed as shown In
"Remarks", the wnt or complaint described on the individual, company, corporation, etc. al the address shown above or on Ihe individual, company, cor-
poration. etc. at the address inserted below by handlrlg a TRUE and ATTESTED Copy thereof
17 0 I hereby certify and return a NOT FOUND because' am unable to locate the individ~al, company, corporation, etc, named above (See remarks below)
1 ;t:);;; ;:;~iVidU~~1 ::n abOSRe,atiOns: I~anl) 1'9 L~~';:', Be'ow (No 30)
20 Add,e" 0' wOe,e selVed ,comp'ele on'y" d,"'''enll~a.:).'~:vel (Sl'ee' OIRFD,Apartmenl No . c~o,o Twp
S'ale and Z,pCodel I T /'-t'~O~'--'V"JIC-.r ~
~/'l-f'-?""A-r p,;f- 1'7::n-'---
23 ATTEMPTS t7,~ ~ w.:f-%1;z ~ 0".1 Mile, loep Int.I O,t.
25 ~~~'~Ocos" 126 Nota,y Cert 127 Milaat~~I~e/l2 1284Q'.C22- 129 jC~;08EFUNO
~~<..::f ?t-2::>p~..s>S'
21 Dale of Service 22 Time
-
PM
(\S~!!BT
7- t' '11"---0.3 . .., EDST
I MH.s I Oep. Int.I 0... I MHos I Oep. Int.
24 Advance Costs
R ,)."7 ~(e,150.00
30 REMARKS
S.T,A
~
~ "2-<D -
Wd~ i ~_ 'SS')"'~; AL:t~lC}'ll'i :;,:. PINf< . ALto~ "'\-'
C /UI/335
? '//)~
~~A SOrR. ~?~
~.t.~/e o!/7 k r ~.... 33 Dale
0'0 ,.-.!.../-<:-/~ ~.J ~ 7 - / '7"-03-
35 s"o""'o;~=~_~ 36 ~~~~~___
<..V.j,1,f"';, S'lerift's Office 4. BlUE S~fllift's OWce
.),~ ",J
31 AFFIRMED and subscribed 10 before me this
34 day of ~u\v )
37 ~_6_",-,L \-\ . c; <- tz. ,
P!othonola'v''''
~"'!'.. C2!AM~~~~~ EXP'~~~__~._~_.__
20D3
J,.
",,.,10.<;
.;;;11
/-~
if
'"
~"-'" ,t''"''''''''~"
^,~j! ...1.
, ,,_~J
r-)
;~-
.;....-,1
'if]': ,'j
'!"l;,'c::'C'i ,+~~t";~~;r-f-,
"l!.,""
"t',-'-".
',Jt-\
.,".
.,
.,
....~ -
, . \.
/""'.
;~~,,^,-,,~ ;~~ '
, I
"
v
..:
c-.....__~
1'"
t-., ,,"
-""'''''1~'--'''
,~
Y:~-' :;:H
...........
~
~~ .,
"
,
\
~,
-
,,'t
I.R'
, '.
---.
,,,,,-...!
-.....
;";:)~\.l~_~:;,~ ~:-
T,; A(.W':: ~~-',
r'-- ::!Pd
'\
'. .....,..
~\. ':,
",~_. '.
'y',
~''''-'' ?
,
"
L
, .
.....
l-~
. .
;~'~"~
......,"''''~-'
,:,,,.,,,~ .."
-h
......
-.-""1
'.~'~'
<
"'"
.' ,
"I'
~A
.~
IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
,
Ioefendants
)
)
)
)
)
)
)
)
)
)
)
)
LAND O'LAKES, INC.
No: 03-2782 Civil Term
Plaintiff
v.
CLOUSE TRUCKING~C.' GREEN
SPRING DAIRY, INC ORATED,
J. EDWARD CLOUSE nd DANIEL
FOX, .
NOTICE
YOU HAVE BEEN S ED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET
FORTIl IN TIlE FOLL WING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS
AFTER TIllS CO LAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN
APPEARANCE PERS NALLY OR BY ATTORNEY AND FILING IN WRITING WITIl TIlE
COURT YOUR DEF SES OR OBJECTIONS TO THE CLAIMS SET FORTIl AGAINST YOU.
YOU ARE WARNED HAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITIlOUT YOU
AND A JUDGMENT AY BE ENTERED AGAINST YOU BY THE COURT WITIlOUT FURTIlER
NOTICE FOR ANY ONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTIlER CLAIM OR
RELIEF REQUESTE BY TIlE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR
OTHER RIGHTS IMP RTANT TO YOU.
YOU SHOULD TAK TIllS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER, GO TO OR TELEPHONE TIlE OFFICE SET FORTH BELOW
IF YOU CANNOT ^*,ORD TO HIRE A LAWYER, TIllS OFFICE MAY BE ABLE TO PROVIDE
YOU WITIl INFO~;\TION ABOUT AGENCIES TIlAT MAY OFFER LEGAL SERVICES TO
ELIGffiLE PERSONS ~T A REDUCED FEE OR NO FEE.
I
,
W:\ WDOXlCLlENTS\IOI\CIO+\00009396.DOC
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013 /1
PHONE: (800) 990-9108 I /
",ro,ESQUill!
ATTORNEY FOR PLAINTIFF
I.D. # 32235
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LAND O'LAKES, INC., and DAIRY
MARKETING SERVICES, LLC,
[Plaintiff,
v.
CLOUSE TRUCKlNi' INC., GREEN
SPRING DAIRY, IN ORPORATED,
1. EDWARD CLOUS and DANIEL
FOX, !
!
IDefendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
COMPLAINT
No: 03-2782 Civil Term
COMES NO,+" the Plaintiffs above captioned, by and through their counsel, Gross,
!
McGinley, LaBarre ~ Eaton, LLP, and state their Complaint based upon the following causes of
action:
1. The PIFntiff, Land O'Lakes, Inc. (hereinafter "LOL"), is a Minnesota agricultural
cooperative corporalion authorized to conduct business within the Commonwealth of
Pennsylvania, with ~ business address of 405 Park Drive, Carlisle, Cumberland County,
!
Pennsylvania.
2. The Plaintiff, Dairy Marketing Services, LLC (hereinafter "DMS"), is a limited
i
I
liability company dojng business in Pennsylvania with offices at P.O. Box 4814, Syracuse, New
York 13221-4844.
3. The $efendant, Clouse Trucking, Inc. (hereinafter "Clouse Trucking"), is a
corporation organize? and existing under the laws of the Commonwealth of Pennsylvania, with
its principal place of business located at 2075 Ritner Highway, Carlisle, Cumberland County,
Pennsylvania.
4. The Defendant, Green Spring Dairy, Incorporat,~d (hereinafter "Green Spring"), is
a Maryland corporatiqn authorized to do business in the Commonwealth of Pennsylvania, with
an address for purposes of service % CT Corporation System, 1635 Market Street, Philadelphia,
Philadelphia County, fennSylVania. .
5. The Dffendant, J. Edward Clouse (hereinafter "Clouse"), is an adult individual
who at all times rele~ant to the within cause of action was the Chief Executive Officer, and an
!
authorized employee I>f Clouse Trucking, Inc., with an address of 2075 Ritner Highway, Carlisle,
Pennsylvania 17013, ~d who was acting within the scope of his employment.
6. The Dtfendant, Daniel Fox (hereinafter "Fox"), is an adult individual who at all
times relevant to the .jvithin cause of action was an authorized employee of Green Spring with an
address of 122 SCho~eck Road, Ephrata, Lancaster County, Pennsylvania, and who was acting
within the scope ofhi~ employment.
I
7. At all I times relevant to the within cause of action, LOL operated a dairy
processing plant at ~t. Holly Spring, Cumberland County, Pennsylvania (hereinafter the "Holly
I
Plant"), at which it r~ceived tank truck loads of raw milk for processing into dairy products for
human consumption. !
8. Joel ~artin (hereinafter "Martin") is a dairy larmer, commonly referred to as a
,
I
,
producer, who, at all !times relevant to the within cause of action, had a contract to sell all of his
!
milk production to Gteen Spring.
9. At all times relevant to the within cause of action, Green Spring was a fluid milk
dairy processor, co~OnlY known as a "handler", who engaged Clouse Trucking to pick up raw
!
!
2
milk from certain producers, including Martin, and to deliver the raw milk to its own or other
dairy plants.
10. At all times relevant to the within cause of actions, DMS marketed milk of
producers, including qertain producers located in Pennsylvania ("DMS Producers"), and engaged
Clouse Trucking to pick up raw milk from producers and deliwr the raw milk to dairy plants.
11. All De~endants knew or should have known that for a period of time immediately
prior to August 6, 20q 1, Martin had halted milk shipments because of the presence of antibiotics
,
in Martin's raw milk. i
,
12. On or ~bout August 6, 2001, 1. E. Speidel (hereinafter "Speidel"), an employee of
Clouse Trucking, opiating a tank truck owned by Clouse Tmcking, on behalf of Green Spring
picked up a load ofraF milk from the farm tank of Martin (hereinafter the "Green Spring Milk").
,
Prior to loading suchlraw milk onto the rear compartment of the tank truck, Speidel took a raw
I
milk sample, commo,lY referred to as a producer sample, from the Martin farm tank.
i
13. Therea~er, in the same tank truck and on behalf of DMS, Speidel picked up more
milk from the farm I tanks of the DMS Producers (hereinafter "DMS Milk") and also took
,
producer samples fro/n such DMS Producers' farm tanks and loaded the DMS Milk into the rear
,
compartment ofthe t~ truck.
,
14. Speidel prepared and signed a Green Spring form delivery receipt specifying the
amount of milk rec~ved from Martin and prepared and signed a DMS form delivery receipt
I
specifying the amount of milk picked up from each DMS producer, to be delivered with the milk
,
i
to the dairy plant recqiving the milk.
,
3
15. Clouse Trucking delivered the Green Spring Milk and DMS Milk to the Lehigh
Valley Dairy (hereinafter "LVD") processing plant in Schuylkill Haven, Schuylkill County,
Pennsylvania and presented the delivery receipts.
16. Milk received at dairy plants in Pennsylvania must be tested in accordance with
procedures set forth il1 the "Grade A Pasteurized Milk Ordinan'~e" published by the United States
Department of Health and Human Services, Public Health Service, Food and Drug
Administration ("PM<!>"), in particular as set forth in Appendix "N" of the PMO (hereinafter
Appendix "N"), for th4 presence of antibiotics above acceptable: levels.
17. The antipiotics testing required by the PMO may be done in two steps:
a) -4\ presumptive test is initially performed by an industry analyst certified to
conduct such test. If s~ch test indicates a negative result (acceptable levels of or no antibiotics),
the milk may be receiv~d for processing into dairy products for human consumption;
b) Ifthe presumptive test is positive (unacceptable levels of antibiotics), then
a more sensitive "con4rmatory" test is conducted by a laboratory certified to perform such a
confirmatory test. If suph confirmatory test indicates a negative result, the milk may be received
and processed into a dOli/)' product for human consumption.
18. Ifboth a fresumptive and confirmatory test show a positive result, the milk cannot
be used for human consfnnption, regardless of further testing, and must be rejected by the dairy
plant.
19. LVD em~loys individuals certified to perform presumptive tests for antibiotics
and operates a laborato~ at Schuylkill Haven, Pennsylvania (hereinafter "L VD Lab") certified to
I
conduct confirmatory tests for antibiotics.
I
I
I
I
4
20. An L VD employee performed a presumptive test on a sample of the co-mingled
DMS and Green Spring milk from the rear compartment of the Clouse tank truck. The
presumptive test showed a positive result.
21. The LVD Lab then performed a confirmatory t.est on a sample of the co-mingled
DMS and Green Spring milk from the rear compartment of the Clouse tank truck. The
confirmatory test also IShowed a positive result.
22. In acco~dance with the PMO, all the milk from the rear compartment of the Clouse
tank truck, the Green $pring Milk and the DMS Milk, was rejected by L VD as not fit to be used
for dairy products for ~uman consumption (hereinafter the "Condenmed Milk").
23. LVD L~b then tested each individual producer sample of the producers whose
milk was contained in ~e rear compartment, and the Martin producer sample was determined to
be the source of the ant/biotic residue.
24. L VD La~ personnel placed metal seals on both openings to the compartment of
the tank truck which coptained the Condenmed Milk.
25. LVD La~ personnel placed a tag on the tank truck which stated: "REJECTED
REAR COMP POSITlVE ANTIBIOTICS. TUSCANILEHY.GH DAIRIES SCHUYLKILL
HAVEN, PA, AUGUST 6, 2001."
26. L VD La~ personnel advised the Clouse driver that the Condenmed Milk was
condemned and must beidumped.
I
27. LVD La~ personnel wrote on the delivery receipt for the Green Spring Milk:
!
I
"Rear Compartment Rejtcted due to Antibiotics. Front Compartment Received."
28. LVD Lab rersonnel retained the producer samples of the Condenmed Milk.
I
I
,
,
,
I
5
29. LVD Lab personnel forwarded reports of the presumptive and confirmatory tests
of the Condenmed Milk to the Pennsylvania Department of Agriculture, Division of Milk
Sanitation.
30. L VD Lab personnel notified DMS by telephone of the rejected load and identified
the source of the antibtiotic residue as a Green Spring producer.
,
31. Dairy Industry custom and practice common throughout Pennsylvania and
Maryland is that the pairy handler of a producer whose milk causes a co-mingled load to be
rejected is responsiblel for the disposition of the Condenmed Milk. Accordingly, Green Spring,
as the handler purchaS~ng the milk of Martin, was responsible for disposition of the Condenmed
Milk.
I
32. DMS c~lled Clouse Trucking and advised Clouse Trucking to contact Green
Spring to arrange for t~e disposition ofthe Condenmed Milk.
33. The Clorse truck with the Condemned Milk returned to a Clouse Trucking
I
,
facility.
I
34. At all tirfes relevant to the within cause of action, Clouse was familiar with the
requirements of the P~O, including the provisions of Appendix "N", and Clouse was further
aware that the LOL H111y Plant processed raw milk for dairy products to be used for human
consumption.
35. At all ti~es relevant to the within cause of action, Fox was familiar with the
requirements of the PM~, including the provisions of Appendix "N", and Fox was further aware
that the LOL Holly Plant, processed raw milk for dairy products to be used for human
consumption.
6
36. Fox and/or Clouse created a new delivery receipt for the Green Spring Milk which i
did not contain the language that L VD placed on the original Green Spring delivery receipt
indicating that the milk was rejected because of antibiotics, and Fox and/or Clouse forged the
signature of Speidel who had picked up the milk from Martin (hereinafter "Fictitious Green
Spring Receipt").
37. Fox an~or Clouse also created a new delivery receipt for the DMS Milk which
had been commingle~ with the contaminated Green Spring Milk, which new receipt did not
I
disclose that both the tont and rear tank compartments had been filled with producer milk as had
I
been indicated on the I original delivery receipt and Fox and/or Clouse forged the signature of
I
Speidel who had picked up the DMS Milk from producers (hereinafter "Fictitious DMS
Receipt").
38. At som~ time, Clouse and Fox removed the LVD seal on the lid of the rear
,
compartment of the t4 truck and removed the antibiotics tag placed there by L YD.
39. LOL emfloys individuals certified to perform presumptive tests for antibiotics and
operates a laboratory (h~reinafter "LOL Lab") which is certified to conduct confirmatory tests.
40. Later on iAugust 6, 2001, a representative of Clouse Trucking contacted LOL and
requested the LOL Lab 10 test two producer samples for antibiotics.
41. Later on ~ugust 6, 2001, Fox delivered to the LOL Lab raw milk identified as
producer samples numrer 1002 purportedly from Dan Martin and number 1012 from Joel
Martin. Both samples t9sted negative for antibiotics.
42. Later on .1.ugust 6, 2001, Clouse contacted LOL and requested approval to deliver
a load of raw milk to te Holly Plant.
I
!
Clouse further represented that the producer samples
7
which were brought to LOL by Fox earlier in the evening represented the same raw milk on the
truck.
43. Despitll knowledge that under the PMO the Condenmed Milk could not be used
for human consumption, Fox and/or Clouse without any authorization from DMS, directed that
the Condenmed Milk be delivered to the LOL Holly Plant.
I
I
44. Clouse ~d/or Fox directed the driver of the truck delivering the Condenmed Milk
to present the Fictitio~s Green Spring and DMS Receipts to LOL.
I
45. At apprpximately 11:30 p.m. on August 6, 2001, the Clouse Trucking tank truck
driven by a Clouse trucking employee with 29,506 pound's of the Condenmed Milk was
,
received at the LOL Hjolly Plant, and the Fictitious Green Spring and DMS Receipts which had
been manufactured b~ Clouse, Fox, Green Spring and/or Clouse Trucking were provided to
LOL.
46. The LO~ Lab frequently receives sealed tank truck loads for confirmatory testing
which had previously! tested positive for antibiotics in a presumptive test conducted by an
!
,
industry analyst at a plaPt not certified to do the confirmatory tests.
I
,
47. LOL La~ personnel specifically asked Clouse if there was any reason not to take
the milk, and he respon1ed that there was not.
,
48. The LOLiLab performed a confirmatory test on the milk which showed a negative
,
I
result.
,
I
49. At no tinte did Fox, Clouse or any representativ,e of Clouse Trucking or Green
I
Spring advise LOL thatl the Condemned Milk had previously fililed a confirmatory antibiotics
test.
8
50. Based upon the statements of Clouse and Fox as aforementioned, the Fictitious
Green Spring ReceiI1t and the Fictitious DMS Receipt, and the testing which was performed,
LOL received 29,5061pounds of Condenmed Milk from the Clouse Trucking truck.
51. The 29;506 pounds ofCondenmed Milk from the Clouse Trucking tank truck was
pumped into a LOL raw milk storage silo and commingled with 454,854 pounds of milk from
other producers.
52. The delivery of the Condenmed Milk by Green Spring and/or Clouse Trucking
constituted a sale ofthp Condenmed Milk by Green Spring to LOL.
53. On Augrst 7, 2001, the Pennsylvania Department of Agriculture notified LOL that
,
the milk in the Clous~ Trucking tank truck, the Condemned Milk, which had been received by
LOL the previous day,!had previously failed both a presumptivf: and confirmatory antibiotics test
and could not be used I for dairy products for human consumption, and further advised that any
raw milk with which t~e Condenmed Milk had been commingled could not be used for human
consumption.
54. LOL waJ required to destroy the 484,360 pounds of milk in the raw milk storage
I
silo into which the CO*denmed Milk had been pumped, or to dispose of it for uses other than
human consumption.
55. As a result of the aforementioned circumstances, LOL suffered a loss of$100,898.
56. As a result of the aforementioned circumstances, DMS suffered a loss of$4,756.
,
COUNT I
LAND 0' LA S INC. v. GREEN SPRING DAIRY, INCORPORATED
COMMON LAW BREACH OF ORAL OR IMPLIED CONTRACT
orates herein by reference Paragraphs 1 through 56 of its Complaint as
57.
if the same were set fort at length herein.
9
58. The raw milk, which is the subject of the with:in cause of action, the Condenmed
Milk, was delivered to LOL by Clouse on behalf of Green Spring.
59. The Condenmed Milk was delivered to LOL for the purpose of offering the
Condemned Milk for sale by Green Spring to LOL.
60. LOL, believing based on the aforesaid statements and/or actions of Green Spring,
by and through its au(thorized officers, agents, employees, servants, or representatives, that the
raw milk was suitable Ifor human consumption, received and accepted the raw milk.
61. A matebal term of this oral or implied agreement was that the raw milk delivered
by Green Spring wopld not be prohibited by the PMO fi'om use in products for human
consumption.
62. At the tlime that the aforementioned agreement was entered into, Green Spring
knew, should have knqwn, or it was within the contemplation of Green Spring that the aforesaid
raw milk would be use~ for human consumption.
63. At the time that the aforementioned agreement was entered into, Green Spring
knew, should have kno~, or it was within the contemplation of Green Spring, that the aforesaid
raw milk would be co-tiIingled with other raw milk ofLOL.
64. At the ti~e that the aforementioned agreement was entered into it was within the
contemplation of the farties that if any milk prohibited from use in products for human
consumption was provi~ed by Green Spring and was subsequently co-mingled with other raw
,
milk of LOL, LOL wo~d suffer damages in that the entire tank of such co-mingled milk would
not be suitable for humaP consumption and would need to be deslroyed.
10
65. Green Spring breached the agreement with LOL in that it delivered to LOL raw
milk which it knew or should have known was prohibited from use in products for human
consumption because ,it had failed a presumptive test and a confirmatory test for antibiotics.
66. As a result of the breach of the contract by Green Spring as aforementioned, LOL
suffered damages in the amount of $100,898 because the entire raw milk storage silo was
prohibited from use iq products for human consumption.
,
,
,
WHEREFO~, Plaintiff respectfully requests this Honorable Court enter judgment in its
,
,
favor in the amount 0~$IOO,898, together with interest and the costs of the within proceeding.
: COUNT II
LAND q' LAKES, INC. v. GREEN SPRING DAIRY, INCORPORATED
! BREACH OF CONTRACT UNDER THE
jPENNSYLV ANIA UNIFORM COMMERCIAL CODE
,
67. LOL in~rporates herein by reference Paragraphs: 1 through 66 of its Complaint as
,
if the same were set fO~ at length herein.
68. The salei of raw milk from Green Spring to LOL constitutes a sale of good under
,
,
the Pennsylvania Unift Commercial Code.
69. LOL rec~ived and accepted the raw milk from Green Spring on the conduct and/or
,
,
assurance from Green ~pring that such raw milk was not prohibited from use in products for
human consumption.
70. After hating received the raw milk, LOL was advised by the Pennsylvania
Department of AgricuI~e that the raw milk was prohibited fi:om use in products for human
I
consumption.
,
71. As a res1lt of the breach of the sale of goods by Green Spring, LOL suffered
damages as aforementioted.
,
i
,
I
,
11
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment in its
favor in the amount or $100,898, together with interest and the, costs of the within proceeding.
COUNT III
~p 0' LAKES v. GREEN SPRING DAIRY, INCORPORATED
. BREACH OF AN IMPLIED DUTY OF GOOD FAITH
72. LOL incorporates herein by reference Paragraphs 1 through 71 of its Compliant as
,
if the same were set f1rth at length herein.
73. Under ~he Uniform Commercial Code, every contract imposes an obligation of
good faith in its perfofnance. 13 Pol. C.S.A. ~ 1203.
74. Green 'ring breached such duty of good faith by delivering raw milk that it knew
or should have know 1as prohibited for use in products for human consumption.
,
75. As a refult of the violation of the implied duty of good faith, LOL suffered
damages as aforementipned.
WHEREFORE~ Plaintiff respectfully requests this Honorable Court enter judgment in its
,
favor in the amount off100,898, together with interest and the costs of the within proceeding.
,
76. LOL incfrporates herein by reference Paragraphs I through 75 of its Complaint as
if the same were set for at length herein.
77. At all tiures relevant to the within cause of action, Green Spring was a merchant
because it deals in raw Imilk or milk products, and held itself out as having knowledge or skill
particular to the proce sing of milk, including, but not limitf:d to, milk suitable for human
COUNT IV
LAND 0 LAKES INC. v. GREEN SPRING DAIRY INCORPORATED
BREAC OF AN IMPLIED WARRANTY OF MERCHANTABILITY
consumption.
12
78. The raw milk provided by Green Spring was not merchantable because it is not of
fair average quality within the description, as the raw milk was not, as so described, fit for
human consumption given that it had failed a confirmatory and presumptive test for antibiotics.
79. The raw milk provided by Green Spring was not merchantable or fit for the
ordinary purpose for which it was to be used in that it was prohibited from use in products for
I
human consumption btcause it had failed a confirmatory test and presumptive test for antibiotics.
80. Green Spring, within a reasonable time after LOL discovered the breach, had been
,
,
I
notified that the raw mjlk was not suitable for human consumption.
,
,
81. As a r~sult of the breach by Green Spring of the implied warranty of
merchantability, LOL s~ffered the damages as aforementioned.
,
WHEREFORE,I Plaintiff respectfully requests this Honorable Court enter judgment in its
favor in the amount of~100,898, together with interest and the costs of the within proceeding.
COUNT V
LAND 0' LAKES INC. v. GREEN SPRING DAIRY, INCORPORATED
BACH OF AN IMPLIED WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE
82. LOL incofporates herein by reference Paragraphs ]1 through 81 of its Complaint as
ifthe same were set fort~ at length herein.
,
,
83. At all timfs relevant to the within cause of action, Green Spring was a merchant
,
I
because it deals in raw tilk or milk products, and held itself out as having knowledge or skill
particular to the proces,ing of milk, including, but not limited to, milk suitable for human
consumption. I
13
84. At all times relevant to the within cause of action, Green Spring knew or had
reason to know, at tI1e time of contracting, that the raw milk was required for a particular
purpose; namely, hunjan consumption.
85. The raw milk provided by Green Spring to LOL was not fit for its particular
purpose because it had failed a confirmatory test and presumptive test for antibiotics.
86. Green $pring, within a reasonable time after LOL discovered the breach, was
notified that the raw uflk was not suitable for human consumption.
,
WHEREFORE~ Plaintiff respectfully requests that this Honorable Court enter judgment
in its favor in the ailiount of $100,898, together with interest and the costs of the within
,
proceeding.
COUNT VI
L D O'LAKES INC. V. CLOUSE TRUCKING, INC.,
GREEN SPRING DAIRY INCORPORATED,
i J. EDWARD CLOUSE and DANIEL FOX
i FRAUDULENT MISREPRESENTATION
87. LOL inc4rporates herein by reference paragraphs 1 through 86 of its Complaint as
,
if the same were set fo~ at length herein.
88. At all tintes relative to the within cause of action,. the Defendants knew that their
representations were m~terial to LOL's decision to accept the raw milk as LOL would not have
accepted the raw milk iflit was not suitable for human consumption.
,
I
89. At all ti~es relevant to the within cause of action, Clouse and Fox were acting
both in their individual I capacity and on behalf of their employers, as authorized agents, and
!
within the scope of their Fmployment.
,
90. At the tim s the representations as aforementioned were made by Clouse and Fox,
they were false, and wer made with actual knowledge that the raw milk was not, as represented,
14
suitable for human consumption, or recklessness as to whether or not the representations were
true.
91. The af<lrementioned representations were made by the Defendants with the intent
of misleading LOL into relying upon such representations so that it would accept the raw milk.
92. In justifiable reliance upon the statements made by the Defendants, LOL accepted
I
delivery ofthe Condetned Milk.
93. The D~fendants conduct was outrageous in that Defendants each had actual
,
I
knowledge that the !Condemned Milk was prohibited from use in products for human
I
!
consumption or acted Mrith reckless indifference of that knowledge and caused the Condemned
,
Milk to be delivered tp LOL in conscious disregard or indifference to the risk the Condemned
Milk would present b~ itself or when commingled with other raw milk intended for use in
,
products for human co*sumption.
I
94. As a refult of LOL's reliance upon the representations of the Defendants as
,
aforementioned, LOL tas caused damage in the amount of$100,898.
95. LOL's fesulting injury was proximately caused by its reliance upon the
representations made bt the Defendants.
WHEREFORE,! LOL respectfully requests this Honorable Court enter judgment in its
i
favor in the amount of~100,898, together with punitive damages, interests and the costs of the
within proceeding.
15
COUNT VII
LAND 0' LAKES, INC. v. CLOUSE TRUCKING, INC.
and GREEN SPRING DAIRY, INCORPORATED
VICARIOUS LIABILITY
96. LOL irjcorporates herein by reference Paragraphs I through 95 of its Complaint as
if the same were set forth at length herein.
97. At all tlmes relevant hereto, Clouse Trucking knew or should have known that its
authorized agents, se~ants, or employees, including, but not limited to Clouse, were likely to
commit the acts of fra~d set forth above in Count VI.
98. At all times relevant hereto, Green Spring knew or should have known that its
I
i
authorized agents, seIjvants, or employees, including, but not limited to Fox, were likely to
,
commit the acts of fra~d set forth above in Count VI.
,
99. At all tlmes relevant hereto, Clouse Trucking's authorized agents, servants, or
employees, including, but not limited to Clouse, were acting within the scope of their
employment.
100. At all fmes relevant hereto, Green Spring's authorized agents, servants, or
employees, including, 1ut not limited to Fox, were acting within the scope oftheir employment.
101. As a dir~ct and proximate result of the fraud of Clouse Trucking's authorized
,
agents, servants, or erployees, including, but not limited 1:0 Clouse, Clouse Trucking IS
I
vicariously liable for thf damages sustained by LOL as set forth above in Count VI above.
,
102. As a dire!t and proximate result of the fraud of Green Spring's authorized agents,
servants, or employees, ,including, but not limited to Fox, Green Spring is vicariously liable for
the damages sustained by LOL as set forth above in Count VI.
16
WHEREFORE, LOL respectfully requests that this Honorable Court enter judgment in its
favor in the amount of $100,898, together with punitive damages, interest and the costs of the
within proceeding.
COUNT VIII
~Af'lD O'LAKES, INC. V. CLOUSE TRUCKING, INC.,
GREEN SPRING DAIRY, INCORPORATED,
J. EDWARD CLOUSE and DANIEL FOX
NEGLIGENT MISREPRESENTATION
,
i
I
LOL in~o:rporates herein by reference Paragraphs I through 102 of its Complaint
103.
as if the same were setl forth at length herein.
104. The Defendants owed a duty to LOL to supply milk not prohibited from use in
products for human co~sumption.
105. The De~ndants breached the duty by supplying raw milk to LOL when they had
I
actual knowledge, or h~d reason to know, that such raw milk was prohibited from use in products
for human consumptio*.
106. The repfesentations of the Defendants as aforementioned were made with the
,
intent that LOL would rely upon such representations.
107. The D~fendants failed to exercise reasonable care or competence ill
communicating to Lod the fitness of the raw milk for human consumption.
108. LOL di~ justifiably rely upon the representations of the Defendants to its
,
detriment.
109. The neglIgent misrepresentations made by the Defendants were the proximate
,
cause ofthe damages suffered by LOL.
110. As a resu ofthe negligent misrepresentations of the Defendants, LOL was caused
to suffer damages in the ount of $100,898.
17
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment in its .
favor in the amount of $100,898, together with punitive damages, interest and the costs of the I
within proceeding.
COUNT IX
LAND 0' LAKES, INC. v. CLOUSE TRUCKING, INC.
and GREEN SPRING DAIRY, INCORPORATED
VICARIOUS LIABILITY
111. LOL inborporates herein by reference Paragraphs 1 through 110 of its Complaint
,
as if the same were se~ forth at length herein.
,
112. At all tires relevant hereto, Clouse Trucking knew or should have known that its
authorized agents, seJants, or employees, including, but not limited to Clouse, were likely to
!
commit the acts ofneg~igent misrepresentation set forth above in Count VIII.
113. At all t~es relevant hereto, Green Spring knew or should have known that its
authorized agents, se7ants, or employees, including, but not limited to Fox, were likely to
commit the acts of negligent misrepresentation set forth above in Count VIII.
114. At all t~es relevant hereto, Clouse Trucking's authorized agents, servants or
employees, including, but not limited to Clouse, were acting within the scope of their
employment.
115. At all times relevant hereto, Green Spring's authorized agents, servants or
,
employees, including, bpt not limited to Fox, were acting within the scope of their employment.
116. As a direft and proximate result of the negligence of Clouse Trucking's authorized
I
agents, servants, or e~ployees, including, but not limited to Clouse, Clouse Trucking IS
,
,
vicariously liable for th1 damages sustained by LOL as set forth above in Count VIII.
18
117. As a direct and proximate result of the neglig,ence of Green Spring's authorized
agents, servants or employees, including, but not limited to Fox, Green Spring is vicariously
liable for the damages sustained by LOL as set forth above in Count VIII
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment
in its favor in the am9unt of $1 00,898, together with punitive damages, interest and the costs of
,
the within proceeding.:
. COUNT X
LAND q' LAKES, INC. v. GREEN SPRING DAIRY, INCORPORATED
, AND CLOUSE TRUCKING, INC.
NEGLIGENCE
118. LOL inqorporates herein by reference Paragraphs I through 117 of this Complaint
as if the same were set !forth at length herein.
119. Clouse Trucking and Green Spring knew that the Condenmed Milk within the
Clouse Trucking truck f:ould not be used for dairy products for human consumption.
120. Clouse lIrucking and Green Spring knew that LOL intended to use raw milk
!
delivered by them to L~L for dairy products for human consumption
121. Clouse TJrucking and Green Spring had a duty not to cause to be delivered to LOL
raw milk that could not ibe used for human consumption.
122. Clouse Tjucking and Green Spring had a duty to notify LOL that the Condemned
Milk could not be used In dairy products for human consumption.
123. Clouse Ttucking and Green Spring breached the aforesaid duties when they
delivered to LOL the C9ndenmed Milk that was not suitable to b,: used in dairy products for
human consumption.
19
124. Clouse Trucking and Green Spring breached the aforesaid duty when they failed
to notify LOL that the Condemned Milk could not be used in dairy products for human
consumption.
125. As a ditect and proximate result of Clouse Trucking and Green Spring delivering
to LOL the Condemned Milk that can not be used in dairy products for human consumption,
I
and/or failing to noti~ LOL that the Condemned Milk cannot be used as such, LOL commingled
I
Condemned Milk fro~ the Clouse Trucking truck with LOL raw milk, thus contaminating the
i
LOL raw milk and catfing LOL to suffer a loss of $ 100,898.00.
WHEREFOREf LOL respectfully requests that this Honorable Court enter judgment in its
favor in the amount of~100,898, together with interest and the eosts of the within proceeding.
COUNT XI
. DMS v. CLOUSE TRUCKING, INC.
!!!!fACH OF CONTRACT IMPLIED IN FACT OR IN LAW
126. DMS in40rporates herein by reference Paragraph!! I through 125 ofthis Complaint
as ifthe same were set forth at length herein.
127. DMS anr Clouse Trucking entered into an implied agreement, whereby Clouse
Trucking agreed to pic~ up the DMS Milk and deliver it to dairy plants.
!
128. At the ti~e Clouse Trucking picked up the DMS Milk at DMS, the DMS Milk
was in a sanitary conditlon fit for use in dairy products for humaIl consumption.
129. An addittnal term of the aforementioned implied agreement between DMS and
Clouse Trucking was t~at Clouse Trucking, upon pick up of the DMS Milk, was required to
deliver the DMS Milk t dairy plants in the same sanitary condition fit for use in dairy products
for human consumption s it was at the time Clouse Trucking picked up the Milk at DMS.
20
130. Clouse Trucking materially breached the aforesaid implied agreement when it
commingled the DMS Milk with the Green Spring Milk.
131. Clouse Trucking breached the aforesaid implied agreement by commingling the
DMS Milk with the Green Spring Milk so as to cause the DMS Milk to be contaminated by the
presence of antibiotics so that it was rendered unsanitary and, therefore, unfit for use in dairy
products for human c~sumption.
132. As a direct and proximate result of the aforesaid commingling of the DMS Milk
,
with the Green Sprin~ Milk by Clouse Trucking, the DMS Milk was rendered unfit for human
consumption and, as a result, DMS suffered damages in the amount of $4,756.00.
,
WHEREFORE) DMS respectfully requests that this Honorable Court enter judgment in
its favor in the amount bf$4,756.00 together with interest and the costs of this proceeding.
,
i
133. DMS inForporates herein by referenced Paragraphs I through 132 of this
,
. COUNT XII
~S v. CLOUSE TRUCKING, INC. AND GREEN SPRING
I DIARY, INCORPORATED
NEGLIGENCE
Complaint as if the sam~ were set forth at length.
134. Clouse Ttucking and Green Spring had a duty not to contaminate the DMS Milk
in a manner that would! cause the DMS Milk to be prohibited jlfom being processed into dairy
products for human con1umption.
135. Clouse Tfucking and/or Green Spring negligently breached the aforesaid duty
,
i
when the Green Sprin& Milk was commingled with the DMS Milk subsequent to Clouse
Trucking picking up D1S Milk.
I
i
I
!
21
136. As a direct and proximate result of the commingling of the Green Spring Milk
with the DMS Milk b~ Clouse Trucking and/or Green Spring, the DMS Milk became unsanitary
and, therefore, unfit f~r use in dairy products for human consumption.
137. Due toithe aforesaid contamination, the DMS Milk was rejected by LVD as a
result of antibiotic res~due in the Green Spring Milk with which it was commingled.
138. As a di ect and proximate cause of the aforesaid commingling and subsequent
rejection, DMS suffer d damages in that rejection caused it to lose the value of the DMS Milk in
the amount of$4,756. O.
WHEREFORElDMS respectfully requests that this Honorable Court enter judgment in
its favor in the amount f$4,756.00, together with interests and the costs of this proceeding.
I
Respectfully Submitted,
Date:
GROSS, MCGINL:E~ARRE & EATON, LLP
BY, PATRI&ESQUlR>
Attorney for Plaintiff, Land O'Lakes, Inc.
33 South 7th Street
PO Box 4060
Allentown, PA 18105-4060
(610) 820-5450
I.D. #32235
W:\WOOX\CLIENTS\lol\clouse\OO 9373.00C
22
VERIFICA TION
I, Patrick J. Rejlly, Esquire, hereby state and verifY that the Plaintiff, Land O'Lakes, Inc.'s,
Verification cannot be btained within the time allowed for filing of the COMPLAINT. Therefore,
pursuant to Pa.R.c.p. 1024, I am authorized to make this Verification on behalf of the Plaintiff and
the facts set forth in the foregoing Complaint are true and correct based upon my knowledge, belief
and information provid d to me by Plaintiff.
I understand th false statements herein are made subject to the penalties of 18 Pol. C.S.A.
~4904, relating to unsw rn falsification to authorities.
Patrick . eIily, Esquire
Attorney for PlaintijJ, Land O'Lakes, Inc.
Date:
'0-2...<6 -c>.
W,IWDOXlCLIENTSI!ollclouseIOO 41815.DOC
CERTIFICATE OF SERVICE
,
This is to certi~ that the foregoing COMPLAINT was mailed by first class United States
mail, postage prepaid, land this0l.3~ay of October, 2003, upon the following:
John A. Statler, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
PO Box 1268
Harrisburg, PA 17108-1268
A orney for Clouse Trucking, Inc. and J. Edward Clouse
Green Spring Dairy, Incorporated
1515 Market Street, Suite 1210
Philadelphia, PA 19102
Mr. Daniel Fox
14 Meadowview Drive
Ephrata, P A 17522
BY:
GROSS, Mc IN)[EY, LaBARRE & EATON, LLP
-/'1 .
) ----
PAT . REILLY, ESQUIRE
Attorney for Plaintiff
33 South 7th Street
P.O. Box 4060
Allentown, PAl 8105-4060
(610) 820-5450
I.D. #32235
DATE:
o ;!r/u
Land Q'Lakes v. Clouse Trucking
W:\WDOX\CLIENTS\lol\c1ollse\OOO 1817.DOC
(') 0 ~
c: W -n
:g;: 0 .-<
,.1(':" n :C:b
t:p~, ~ .... n1p_
~- W ;j~
Z~.'~
~:>, 0 ~;t
!<C, -U -,.- :Il
~C' ::I: C5~
..7
:p(:~ ~ 9
c
-. ~
::~ :.,.)
-< 00
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Defendants
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No: 03-2782 Civil Term
LAND O'LAKES, INe., and DAIRY
MARKETING SERVICES, LLC,
Plaintiffs
v.
CLOUSE TRUCKING, INe.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE and
DANIEL FOX,
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 ATTORNEY AND FILING IN WRITING WITH THE
COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU.
YOU ARE W ARl\'ED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU
AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER
NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR
RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR
OTHER RIGHTS IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE
YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO
ELIGffiLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, P A 17013
PHONE: (800) 990-9108
LY,ESQUIRE
W:\ WOOX\CLlENTS\\o\\c1ouseI00009396.00C
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
)
)
)
)
)
)
)
)
)
)
)
)
)
)
AMENDED COMPLAINT
LAND O'LAKES, INC., and DAIRY
MARKETING SERVICES, LLC,
Plaintiffs
v.
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE and
DANIEL FOX,
Defendants
No: 03-2782 Civil Term
COMES NOW, the Plaintiffs above captioned, by and through their counsel, Gross,
McGinley, LaBarre & Eaton, LLP, and state their Complaint based upon the following causes of
action:
1. The Plaintiff, Land O'Lakes, Inc. (hereinafter "LOL"), is a Minnesota agricultural
cooperative corporation authorized to conduct business within the Commonwealth of
Pennsylvania, with a business address of 405 Park Drive, Carlisle, Cumberland County,
Pennsylvania.
2. The Plaintiff, Dairy Marketing Services, LLC (hereinafter "DMS"), is a limited
liability company doing business in Pennsylvania with offices at P.O. Box 4814, Syracuse, New
York 13221-4844.
3. The Defendant, Clouse Trucking, Inc. (hereinafter "Clouse Trucking"), is a
corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with
its principal place of business located at 2075 Ritner Highway, Carlisle, Cumberland County,
Pennsylvania.
4. The Defendant, Cloverland Dairy Limited Partnership (hereinafter "Cloverland"),
is a Maryland corporation authorized to do business in the Commonwealth of Pennsylvania, with
its principal place of business located at 2701 Loch Raven Road, Baltimore, Maryland 21218.
5. The Defendant, J. Edward Clouse (hereinafter "Clouse"), is an adult individual
who at all times relevant to the within cause of action was the Chief Executive Officer, and an
authorized employee of Clouse Trucking, Inc., with an address of2075 Ritner Highway, Carlisle,
Pennsylvania 17013, and who was acting within the scope of his employment.
6. The Defendant, Daniel Fox (hereinafter "Fox"), is an adult individual who at all
times relevant to the within cause of action was an authorized employee of Cloverland with an
address of 122 Schoeneck Road, Ephrata, Lancaster County, Pennsylvania, and who was acting
within the scope of his employment.
7. At all times relevant to the within cause of action, LOL operated a dairy
processing plant at Mt. Holly Spring, Cumberland County, Pennsylvania (hereinafter the "Holly
Plant"), at which it received tank truck loads of raw milk for processing into dairy products for
human consumption.
8. Joel Martin (hereinafter "Martin") is a dairy farmer, commonly referred to as a
producer, who, at all times relevant to the within cause of action, had a contract to sell all of his
milk production to Cloverland.
9, At all times relevant to the within cause of action, Cloverland was a fluid milk
dairy processor, commonly known as a "handler", who engaged Clouse Trucking to pick up raw
2
milk from certain producers, including Martin, and to deliver the raw milk to its own or other
dairy plants.
10. At all times relevant to the within cause of actions, DMS marketed milk of
producers, including certain producers located in Pennsylvania ("DMS Producers"), and engaged
Clouse Trucking to pick up raw milk from producers and deliver the raw milk to dairy plants.
11. All Defendants knew or should have known that for a period of time immediately
prior to August 6, 2001, Martin had halted milk shipments because of the presence of antibiotics
in Martin's raw milk.
12. On or about August 6, 2001, L. E. Speidel (hereinafter "Speidel"), an employee of
Clouse Trucking, operating a tank truck owned by Clouse Trucking, on behalf of Cloverland
picked up a load of raw milk from the farm tank of Martin (hereinafter the "Cloverland Milk").
Prior to loading such raw milk onto the rear compartment of the tank truck, Speidel took a raw
milk sample, commonly referred to as a producer sample, from the Martin farm tank.
13. Thereafter, in the same tank truck and on behalf ofDMS, Speidel picked up more
milk from the farm tanks of the DMS producers (hereinafter "DMS Milk") and also took
producer samples from such DMS Producers' farm tanks and loaded the DMS Milk into the rear
compartment ofthe tank truck.
14. Speidel prepared and signed a Cloverland form delivery receipt specifying the
amount of milk received from Martin and prepared and signed a DMS form delivery receipt
specifying the amount of milk picked up from each DMS producer, to be delivered with the milk
to the dairy plant receiving the milk.
3
15. Clouse Trucking delivered the Cloverland Milk and DMS Milk to the Lehigh
Valley Dairy (hereinafter "LVD") processing plant in Schuylkill Haven, Schuylkill County,
Pennsylvania and presented the delivery receipts.
16. Milk received at dairy plants in Pennsylvania must be tested in accordance with
procedures set forth in the "Grade A Pasteurized Milk Ordinance" published by the United States
Department of Health and Human Services, Public Health Service, Food and Drug
Administration ("PMO"), in particular as set forth in Appendix "N" of the PMO (hereinafter
Appendix "N''), for the presence of antibiotics above acceptable levels.
17. The antibiotics testing required by the PMO may be done in two steps:
a) A presumptive test is initially performed by an industry analyst certified to
conduct such test. If such test indicates a negative result (acceptable levels of or no antibiotics),
the milk may be received for processing into dairy products for human consumption;
b) If the presumptive test is positive (unacceptable levels of antibiotics), then
a more sensitive "confirmatory" test is conducted by a laboratory certified to perform such a
confirmatory test. If such confirmatory test indicates a negative result, the milk may be received
and processed into a dairy product for human consumption.
18. Ifboth a presumptive and confirmatory test show a positive result, the milk cannot
be used for human consumption, regardless of further testing, and must be rejected by the dairy
plant.
19. LVD employs individuals certified to perform presumptive tests for antibiotics
and operates a laboratory at Schuylkill Haven, Pennsylvania (hereinafter "L VD Lab") certified to
conduct confirmatory tests for antibiotics.
4
20. An L VD employee performed a presumptive test on a sample of the co-mingled
DMS and Cloverland milk from the rear compartment ofthe Clouse tank truck. The presumptive
test showed a positive result.
21. The LVD Lab then performed a confirmatory test on a sample of the co-mingled
DMS and Cloverland milk from the rear compartment of the Clouse tank truck. The
confirmatory test also showed a positive result.
22. In accordance with the PMO, all the milk from the rear compartment of the Clouse
tank truck, the Cloverland Milk and the DMS Milk, was rejected by L VD as not fit to be used for
dairy products for human consumption (hereinafter the "Condemned Milk").
23. LVD Lab then tested each individual producer sample of the producers whose
milk was contained in the rear compartment, and the Martin producer sample was determined to
be the source of the antibiotic residue.
24. L VD Lab personnel placed metal seals on both openings to the compartment of
the tank truck which contained the Condemned Milk.
25. L VD Lab personnel placed a tag on the tank truck which stated: "REJECTED
REAR COMP POSITIVE ANTIBIOTICS. TUSCAN/LEHIGH DAIRIES SCHUYLKILL
HAVEN, PA, AUGUST 6, 200\."
26. LVD Lab personnel advised the Clouse driver that the Condemned Milk was
condemned and must be dumped.
27. LVD Lab personnel wrote on the delivery receipt for the Cloverland Milk: "Rear
Compartment Rejected due to Antibiotics. Front Compartment Received."
28. L VD Lab personnel retained the producer samples of the Condemned Milk.
5
29. L VD Lab personnel forwarded reports of the presumptive and confirmatory tests
of the Condemned Milk to the Pennsylvania Department of Agriculture, Division of Milk
Sanitation.
30. L VD Lab personnel notified DMS by telephone of the rejected load and identified
the source ofthe antibiotic residue as a Cloverland producer.
31. Dairy industry custom and practice common throughout Pennsylvania and
Maryland is that the Dairy handler of a producer whose milk causes a co-mingled load to be
rejected is responsible for the disposition of the Condemned Milk. Accordingly, Cloverland, as
the handler purchasing the milk of Martin, was responsible for disposition of the Condemned
Milk.
32. DMS called Clouse Trucking and advised Clouse Trucking to contact Cloverland
to arrange for the disposition ofthe Condenmed Milk.
33. The Clouse truck with the Condemned Milk returned to a Clouse Trucking
facility.
34. At all times relevant to the within cause of action, Clouse was familiar with the
requirements of the PMO, including the provisions of Appendix "N", and Clouse was further
aware that the LOL Holly Plant processed raw milk for dairy products to be used for human
consumption.
35. At all times relevant to the within cause of action, Fox was familiar with the
requirements of the PMO, including the provisions of Appendix "N", and Fox was further aware
that the LOL Holly Plant, processed raw milk for dairy products to be used for human
consumption.
6
36. Fox and/or Clouse created a new delivery receipt for the Cloverland Milk which
did not contain the language that L VD placed on the original Cloverland delivery receipt
indicating that the milk was rejected because of antibiotics, and Fox and/or Clouse forged the
signature of Speidel who had picked up the milk from Martin (hereinafter "Fictitious Cloverland
Receipt").
37. Fox and/or Clouse also created a new delivery receipt for the DMS Milk which
had been commingled with the contaminated Cloverlan4 Milk, which new receipt did not
disclose that both the front and rear tank compartments had' been filled with producer milk as had
been indicated on the original delivery receipt and Fox and/or Clouse forged the signature of
Speidel who had picked up the DMS Milk from producers (hereinafter "Fictitious DMS
Receipt").
38. At some time, Clouse and Fox removed' the L VD seal on the lid of the rear
compartment of the tank truck and removed the antibiotics tag placed there by L YD.
39. LOL employs individuals certified to perform presumptive tests for antibiotics and
operates a laboratory (hereinafter "LOL Lab") which is certified to conduct confirmatory tests.
40. Later on August 6, 2001, a representative of Clouse Trucking contacted LOL and
requested the LOL Lab to test two producer samples for antibiotics.
41. Later on August 6, 2001, Fox delivered to the LOL Lab raw milk identified as
producer samples number 1002 purportedly from Dan Martin and number 1012 from Joel
Martin. Both samples tested negative for antibiotics.
42. Later on August 6, 2001, Clouse contacted LOL and requested approval to deliver
a load of raw milk to the Holly Plant. Clouse further represented that the producer samples
7
which were brought to LOL by Fox earlier in the evening represented the same raw milk on the
truck.
43. Despite knowledge that under the PMO the Cond'emned Milk could not be used
for human consumption, Fox and/or Clouse without any authorization from DMS, directed that
the Condemned Milk be delivered to the LOL Holly Plant.
44. Clouse and/or Fox directed the driver of the truck delivering the Condemned Milk
to present the Fictitious Cloverland and DMS Receipts to LOL.
45. At approximately 11:30 p.m. on August 6, 2001, the Clouse Trucking tank truck
driven by a Clouse Trucking employee with 29,506 pounds of the Condenmed Milk was
received at the LOL Holly Plant, and the Fictitious Cloverland and DMS Receipts which had
been manufactured by Clouse, Fox, Cloverland and/or Clouse Trucking were provided to LOL.
46. The LOL Lab frequently receives sealed tank truck loads for confirmatory testing
which had previously tested positive for antibiotics in a presumptive test conducted by an
industry analyst at a plant not certified to do the confirmatory tests.
47. LOL Lab personnel specifically asked Clouse if there was any reason not to take
the milk, and he responded that there was not.
48. The LOL Lab performed a confirmatory test on the milk which showed a negative
result.
49. At no time did Fox, Clouse or any representative of Clouse Trucking or
Cloverland advise LOL that the Condemned Milk had previously failed a confirmatory
antibiotics test.
8
50. Based upon the statements of Clouse and Fox as aforementioned, the Fictitious
Cloverland Receipt and the Fictitious DMS Receipt, and the testing which was performed, LOL
received 29,506 pounds ofCondenmed Milk from the Clouse Trucking truck.
51. The 29,506 pounds of Condemned Milk from the Clouse Trucking tank truck was
pumped into a LOL raw milk storage silo and commingled with 454,854 pounds of milk from
other producers.
52. The delivery of the Condemned Milk by Cloverland and/or Clouse Trucking
constituted a sale of the Condemned Milk by Cloverland to LOL.
53. On August 7, 2001, the Pennsylvania Department of Agriculture notified LOL that
the milk in the Clouse Trucking tank truck, the Condemned Milk, which had been received by
LOL the previous day, had previously failed both a presumptive and confirmatory antibiotics test
and could not be used for dairy products for human consumption, and further advised that any
raw milk with which the Condemned Milk had been commingled could not be used for human
consumption.
54. LOL was required to destroy the 484,360 pounds of milk in the raw milk storage
silo into which the Condemned Milk had been pumped, or to dispose of it for uses other than
human consumption.
55. As a result of the aforementioned circumstances, LOL suffered a loss of$100,898.
56. As a result of the aforementioned circumstances, DMS suffered a loss of$4,756.
COUNT I
LAND 0' LAKES, INC. v. CLOVERLAND DAIRY LIMITED PARTNERSHIP
COMMON LAW BREACH OF ORAL OR IMPLIED CONTRACT
57. LOL incorporates herein by reference Paragraphs 1 through 56 of its Complaint as
if the same were set forth at length herein.
9
58. The raw milk, which is the subject of the within cause of action, the Condemned
Milk, was delivered to LOL by Clouse on behalf of Cloverland.
59. The Condemned Milk was delivered to LOL for the purpose of offering the
Condemned Milk for sale by Cloverland to LOL.
60. LOL, believing based on the aforesaid statements and/or actions ofCloverland, by
and through its authorized officers, agents, employees, servants, or representatives, that the raw
milk was suitable for human consumption, received and accepted the raw milk.
61. A material term of this oral or implied agreement was that the raw milk delivered
by Cloverland would not be prohibited by the PMO from use in products for human
consumption.
62. At the time that the aforementioned agreement was entered into, Cloverland knew,
should have known, or it was within the contemplation of Cloverland that the aforesaid raw milk
would be used for human consumption.
63. At the time that the aforementioned agreement was entered into, Cloverland knew,
should have known, or it was within the contemplation of Cloverland, that the aforesaid raw milk
would be co-mingled with other raw milk ofLOL.
64. At the time that the aforementioned agreement was entered into it was within the
contemplation of the parties that if any milk prohibited from use in products for human
consumption was provided by Cloverland and was subsequently co-mingled with other raw milk
of LOL, LOL would suffer damages in that the entire tank of such co-mingled milk would not be
suitable for human consumption and would need to be destroyed.
10
65. Cloverland breached the agreement with LOL in that it delivered to LOL raw milk
which it knew or should have known was prohibited from use in products for human
consumption because it had failed a presumptive test and a confirmatory test for antibiotics.
66. As a result of the breach of the contract by Cloverland as aforementioned, LOL
suffered damages in the amount of $100,898 because the entire raw milk storage silo was
prohibited from use in products for human consumption.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment in its
favor in the amount of $1 00,898, together with interest and the costs of the within proceeding.
COUNT II
LAND 0' LAKES, INC. v. CLOVERLAND DAIRY LIMITED PARTNERSHIP
BREACH OF CONTRACT UNDER THE
PENNSYL VANIA UNIFORM COMMERCIAL CODE
67. LOL incorporates herein by reference Paragraphs I through 66 of its Complaint as
ifthe same were set forth at length herein.
68. The sale of raw milk from Cloverland to LOL constitutes a sale of good under the
Pennsylvania Uniform Commercial Code.
69. LOL received and accepted the raw milk from Cloverland on the conduct and/or
assurance from Cloverland that such raw milk was not prohibited from use in products for
human consumption.
70. After having received the raw milk, LOL was advised by the Pennsylvania
Department of Agriculture that the raw milk was prohibited from use in products for human
consumption.
71. As a result of the breach of the sale of goods by Cloverland, LOL suffered
damages as aforementioned.
11
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment in its
favor in the amount of $1 00,898, together with interest and the costs of the within proceeding.
COUNT III
LAND 0' LAKES v. CLOVERLAND DAIRY LIMITED PARTNERSHIP
BREACH OF AN IMPLIED DUTY OF GOOD FAITH
72. LOL incorporates herein by reference Paragraphs I through 71 of its Compliant as
if the same were set forth at length herein.
73. Under the Uniform Commercial Code, every contract imposes an obligation of
good faith in its performance. 13 Pa. C.S.A. ~ 1203.
74. Cloverland breached such duty of good faith by delivering raw milk that it knew
or should have know was prohibited for use in products for human consumption.
75. As a result of the violation of the implied duty of good faith, LOL suffered
damages as aforementioned.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment in its
favor in the amount of $1 00,898, together with interest and the costs of the within proceeding.
COUNT IV
LAND 0' LAKES, INC. v. CLOVERLAND DAIRY LIMITED PARTNERSHIP
BREACH OF AN IMPLIED WARRANTY OF MERCHANTABILITY
76. LOL incorporates herein by reference Paragraphs 1 through 75 of its Complaint as
if the same were set forth at length herein.
77. At all times relevant to the within cause of action, Cloverland was a merchant
because it deals in raw milk or milk products, and held itself out as having knowledge or skill
particular to the processing of milk, including, but not limited to, milk suitable for human
consumption.
12
78. The raw milk provided by Cloverland was not merchantable because it is not of
fair average quality within the description, as the raw milk was not, as so described, fit for
human consumption given that it had failed a confirmatory and presumptive test for antibiotics.
79. The raw milk provided by Cloverland was not merchantable or fit for the ordinary
purpose for which it was to be used in that it was prohibited from use in products for human
consumption because it had failed a confirmatory test and presumptive test for antibiotics.
80. Cloverland, within a reasonable time after LOL discovered the breach, had been
notified that the raw milk was not suitable for human consumption.
81. As a result of the breach by Cloverland of the implied warranty of
merchantability, LOL suffered the damages as aforementioned.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment in its
favor in the amount of $100,898, together with interest and the costs of the within proceeding.
COUNT V
LAND 0' LAKES, INC. v. CLOVERLAND DAIRY LIMITED PARTNERSHIP
BREACH OF AN IMPLIED WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE
82. LOL incorporates herein by reference Paragraphs I through 81 of its Complaint as
if the same were set forth at length herein.
83. At all times relevant to the within cause of action, Cloverland was a merchant
because it deals in raw milk or milk products, and held itself out as having knowledge or skill
particular to the processing of milk, including, but not limited to, milk suitable for human
consumption.
13
84. At all times relevant to the within cause of action, Cloverland knew or had reason
to know, at the time of contracting, that the raw milk was required for a particular purpose;
namely, human consumption.
85. The raw milk provided by Cloverland to LOL was not fit for its particular
purpose because it had failed a confirmatory test and presumptive test for antibiotics.
86. Cloverland, within a reasonable time after LOL discovered the breach, was
notified that the raw milk was not suitable for human consumption.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment
in its favor in the amount of $100,898, together with interest and the costs of the within
proceeding.
COUNT VI
LAND O'LAKES, INC. V. CLOUSE TRUCKING, INC., CLOVERLAND DAIRY
LIMITED PARTNERSHIP, J. EDWARD CLOUSE and DANIEL FOX
FRAUDULENT MISREPRESENTATION
87. LOL incorporates herein by reference paragraphs 1 through 86 of its Complaint as
if the same were set forth at length herein.
88. At all times relative to the within cause of action, the Defendants knew that their
representations were material to LOL's decision to accept the raw milk as LOL would not have
accepted the raw milk if it was not suitable for human consumption.
89. At all times relevant to the within cause of action, Clouse and Fox were acting
both in their individual capacity and on behalf of their employers, as authorized agents, and
within the scope of their employment.
90. At the times the representations as aforementioned were made by Clouse and Fox,
they were false, and were made with actual knowledge that the raw milk was not, as represented,
14
suitable for human consumption, or recklessness as to whether or not the representations were
true.
91. The aforementioned representations were made by the Defendants with the intent
of misleading LOL into relying upon such representations so that it would accept the raw milk.
92. In justifiable reliance upon the statements made by the Defendants, LOL accepted
delivery of the Condemned Milk.
93. The Defendants conduct was outrageous ill that Defendants each had actual
knowledge that the Condemned Milk was prohibited from use in products for human
consumption or acted with reckless indifference of that knowledge and caused the Condemned
Milk to be delivered to LOL in conscious disregard or indifference to the risk the Condemned
Milk would present by itself or when commingled with other raw milk intended for use in
products for human consumption.
94. As a result of LOL's reliance upon the representations of the Defendants as
aforementioned, LOL was caused damage in the amount of$100,898.
95. LOL's resulting injury was proximately caused by its reliance upon the
representations made by the Defendants.
WHEREFORE, LOL respectfully requests this Honorable Court enter judgment in its
favor in the amount of $100,898, together with punitive damages, interests and the costs of the
within proceeding.
15
COUNT VII
LAND 0' LAKES. INC. v. CLOUSE TRUCKING. INC.
and CLOVERLAND DAIRY LIMITED PARTNERSHIP
VICARIOUS LIABILITY
96. LOL incorporates herein by reference Paragraphs 1 through 95 of its Complaint as
if the same were set forth at length herein.
97. At all times relevant hereto, Clouse Trucking knew or should have known that its
authorized agents, servants, or employees, including, but not limited to Clouse, were likely to
commit the acts of fraud set forth above in Count VI.
98. At all times relevant hereto, Cloverland knew or should have known that its
authorized agents, servants, or employees, including, but not limited to Fox, were likely to
commit the acts of fraud set forth above in Count VI.
99. At all times relevant hereto, Clouse Trucking's authorized agents, servants, or
employees, including, but not limited to Clouse, were acting within the scope of their
employment.
100. At all times relevant hereto, Cloverland's authorized agents, servants, or
employees, including, but not limited to Fox, were acting within the scope of their employment.
101. As a direct and proximate result of the fraud of Clouse Trucking's authorized
agents, servants, or employees, including, but not limited to Clouse, Clouse Trucking IS
vicariously liable for the damages sustained by LOL as set forth above in Count VI above.
102. As a direct and proximate result of the fraud of Cloverland's authorized agents,
servants, or employees, including, but not limited to Fox, Cloverland is vicariously liable for the
damages sustained by LOL as set forth above in Count VI.
16
WHEREFORE, LOL respectfully requests that this Honorable Court enter judgment in its
favor in the amount of $100,898, together with punitive damages, interest and the costs of the
within proceeding.
COUNT VIII
LAND O'LAKES, INC. V. CLOUSE TRUCKING, INC., CLOVERLAND DAIRY
LIMITED PARTNERSHIP, J. EDWARD CLOUSE and DANIEL FOX
NEGLIGENT MISREPRESENTATION
103. LOL incorporates herein by reference Paragraphs 1 through 102 of its Complaint
as ifthe same were set forth at length herein.
104. The Defendants owed a duty to LOL to supply milk not prohibited from use in
products for human consumption.
105. The Defendants breached the duty by supplying raw milk to LOL when they had
actual knowledge, or had reason to know, that such raw milk was prohibited from use in products
for human consumption.
106. The representations of the Defendants as aforementioned were made with the
intent that LOL would rely upon such representations.
107. The Defendants failed to exercise reasonable care or competence in
communicating to LOL the fitness of the raw milk for human consumption.
108. LOL did justifiably rely upon the representations of the Defendants to its
detriment.
109. The negligent misrepresentations made by the Defendants were the proximate
cause of the damages suffered by LOL.
110. As a result of the negligent misrepresentations of the Defendants, LOL was caused
to suffer damages in the amount of$100,898.
17
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment in its
favor in the amount of $100,898, together with punitive damages, interest and the costs of the
within proceeding.
COUNT IX
LAND 0' LAKES, INC. v. CLOUSE TRUCKING, INC.
and CLOVERLAND DAIRY LIMITED PARTNERSHIP
VICARIOUS LIABILITY
111. LOL incorporates herein by reference Paragraphs 1 through 110 of its Complaint
as if the same were set forth at length herein.
112. At all times relevant hereto, Clouse Trucking knew or should have known that its
authorized agents, servants, or employees, including, but not limited to Clouse, were likely to
commit the acts of negligent misrepresentation set forth above in Count VIII.
113. At all times relevant hereto, Cloverland knew or should have known that its
authorized agents, servants, or employees, including, but not limited to Fox, were likely to
commit the acts of negligent misrepresentation set forth above in Count VIII.
114. At all times relevant hereto, Clouse Trucking's authorized agents, servants or
employees, including, but not limited to Clouse, were acting within the scope of their
employment.
115. At all times relevant hereto, Cloverland's authorized agents, servants or
employees, including, but not limited to Fox, were acting within the scope of their employment.
116. As a direct and proximate result of the negligence of Clouse Trucking's authorized
agents, . servants, or employees, including, but not limited to Clouse, Clouse Trucking IS
vicariously liable for the damages sustained by LOL as set forth above in Count VIII.
18
117. As a direct and proximate result of the negligence of Cloverland' s authorized
agents, servants or employees, including, but not limited to Fox, Cloverland is vicariously liable
for the damages sustained by LOL as set forth above in Count VIII
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment
in its favor in the amount of $100,898, together with punitive damages, interest and the costs of
the within proceeding.
COUNT X
LAND 0' LAKES. INC. v. CLOVERLAND DAIRY LIMITED PARTNERSHIP
AND CLOUSE TRUCKING. INC.
NEGLIGENCE
118. LOL incorporates herein by reference Paragraphs 1 through 117 of this Complaint
as if the same were set forth at length herein.
119. Clouse Trucking and Cloverland knew that the Condemned Milk within the
Clouse Trucking truck could not be used for dairy products for human consumption.
120. Clouse Trucking and Cloverland knew that LOL intended to use raw milk
delivered by them to LOL for dairy products for human consumption
121. Clouse Trucking and Cloverland had a duty not to cause to be delivered to LOL
raw milk that could not be used for human consumption.
122. Clouse Trucking and Cloverland had a duty to notif'y LOL that the Condemned
Milk could not be used in dairy products for human consumption.
123. Clouse Trucking and Cloverland breached the aforesaid duties when they
delivered to LOL the Condemned Milk that was not suitable to be used in dairy products for
human consumption.
19
124. Clouse Trucking and Cloverland breached the aforesaid duty when they failed to
notify LOL that the Condemned Milk could not be used in dairy products for human
consumption.
125. As a direct and proximate result of Clouse Trucking and Cloverland delivering to
LOL the Condemned Milk that can not be used in dairy products for human consumption, and/or
failing to notify LOL that the Condemned Milk cannot be used as such, LOL commingled
Condemned Milk from the Clouse Trucking truck with LOL raw milk, thus contaminating the
LOL raw milk and causing LOL to suffer a loss of$100,898.00.
WHEREFORE, LOL respectfully requests that this Honorable Court enter judgment in its
favor in the amount of $1 00,898, together with interest and the costs of the within proceeding.
COUNT XI
DMS v. CLOUSE TRUCKING, INC.
BREACH OF CONTRACT IMPLIED IN FACT OR IN LAW
126. DMS incorporates herein by reference Paragraphs I through 125 ofthis Complaint
as if the same were set forth at length herein.
127. DMS and Clouse Trucking entered into an implied agreement, whereby Clouse
Trucking agreed to pick up the DMS Milk and deliver it to dairy plants.
128. At the time Clouse Trucking picked up the DMS Milk at DMS, the DMS Milk
was in a sanitary condition fit for use in dairy products for human consumption.
129. An additional term of the aforementioned implied agreement between DMS and
Clouse Trucking was that Clouse Trucking, upon pick up of the DMS Milk, was required to
deliver the DMS Milk to dairy plants in the same sanitary condition fit for use in dairy products
for human consumption as it was at the time Clouse Trucking picked up the Milk at DMS.
20
130. Clouse Trucking materially breached the aforesaid implied agreement when it
commingled the DMS Milk with the Cloverland Milk.
131. Clouse Trucking breached the aforesaid implied agreement by commingling the
DMS Milk with the Cloverland Milk so as to cause the DMS Milk to be contaminated by the
presence of antibiotics so that it was rendered unsanitary and, therefore, unfit for use in dairy
products for human consumption.
132. As a direct and proximate result of the aforesaid commingling of the DMS Milk
with the Cloverland Milk by Clouse Trucking, the DMS Milk was rendered unfit for human
consumption and, as a result, DMS suffered damages in the amount of $4,756.00.
WHEREFORE, DMS respectfully requests that this Honorable Court enter judgment in
its favor in the amount of $4,756.00 together with interest and the costs of this proceeding.
COUNT XII
DMS v. CLOUSE TRUCKING, INC.
AND CLOVERLAND DAIRY LIMITED PARTNERSHIP
NEGLIGENCE
133. DMS incorporates herein by referenced Paragraphs I through 132 of this
Complaint as if the same were set forth at length.
134. Clouse Trucking and Cloverland had a duty not to contaminate the DMS Milk in a
manner that would cause the DMS Milk to be prohibited from being processed into dairy
products for human consumption.
135. Clouse Trucking and/or Cloverland negligently breached the aforesaid duty when
the Cloverland Milk was commingled with the DMS Milk subsequent to Clouse Trucking
picking up DMS Milk.
21
136. As a direct and proximate result of the commingling of the Cloverland Milk with
the DMS Milk by Clouse Trucking and/or Cloverland, the DMS Milk became unsanitary and,
therefore, unfit for use in dairy products for human consumption.
137. Due to the aforesaid contamination, the DMS Milk was rejected by LVD as a
result of antibiotic residue in the Cloverland Milk with which it was commingled.
138. As a direct and proximate cause of the aforesaid commingling and subsequent
rejection, DMS suffered damages in that rejection caused it to lose the value of the DMS Milk in
the amount of$4,756.00.
WHEREFORE, DMS respectfully requests that this Honorable Court enter judgment in
its favor in the amount of$4,756.00, together with interests and the costs of this proceeding.
Respectfully Submitted,
BY:
~.<-
PATRI 1 REILLY,ESQUIRE
Attorney for Plaintiff, Land O'Lakes, Inc.
33 South 7th Street
PO Box 4060
Allentown, P A 18105-4060
(610) 820-5450
I.D. #32235
GROSS, McG
, LaBARRE & EATON, LLP
Date:
({ I Ju (0)
W,I WDOXlCLlENTSllol\clouseI00043483.DOC
22
VERIFICATION
I, Patrick J. Reilly, Esquire, hereby state and verify that the Plaintiff, Land O'Lakes, Inc.'s,
Verification cannot be obtained within the time allowed for filing of the AMENDED COMPLAINT.
Therefore, pursuant to Pa.R.C.P. 1024, I am authorized to make this Verification on behalf of the
Plaintiff and the facts set forth in the foregoing Complaint are true and correct based upon my
knowledge, belief and information provided to me by Plaintiff.
I understand that false statements herein are made subject to the penalties of 18 Pol. C.S.A.
94904, relating to unsworn falsification to authorities.
7
-.-1-
Patrick J. , Esquire
Attorney for Plaintiff, Land O'Lakes, Inc.
Date: J( (3"'/01
W:\ WOOX\CLlENTS~ol\clouse\00041815.00C
.
CERTIFICATE OF SERVICE
This is to certify that the foregoing AMENDED COMPLAINT was mailed by first class
United States mail, postage prepaid, and this~O-*' day of November, 2003, upon the following:
John A. Statler, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
PO Box 1268
Harrisburg, PA 17108-1268
Attorney for Clouse Trucking, Inc. and .T. Edward Clouse
Scott T. Wyland, Esquire
Hawke, McKeon, Sniscak & Kennard LLP
100 North Tenth Street
Harrisburg, P A 17101
Attorney for Cloverland Dairy Limited Partnership
Mr. Daniel Fox
14 Meadowview Drive
Ephrata, P A 17522
DATE:
I (f:Luf.>,)
BY:
PAT K. REILLY, ESQUIRE
Attorne or Plaintiffs
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
(610) 820-5450
J.D. #32235
Land O'Lakes v. Clouse Trucking
W ,\ WDOXlCLlENTS\lol\clouse\00041817.DOC
-n
-cl ,
r,' ~
z.
:/ r-...)
en
"<.
~;:. ~T)
;;i2 C' -~
,C (
~ c r:?
-/ _.~
~~ '.11 ;:~
-z .r. ~
~
LAND O'LAKES, INC., and DAIRY
MARKETING SERVICES, LLC,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE
and DANIEL FOX,
: No. 03-2782 CIVIL TERM
Defendants
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter the appearance of Scott T. Wyland, Esquire and the law firm of Hawke
McKeon Sniscak & Kennard LLP, and Daniel S. Katz, Esquire and the law firm of Tydings &
Rosenberg LLP, as attorneys of record on behalf of Defendants Cloverland Dairy Limited
Partnership, and Daniel Fox.
HAWKE McKEON SNISCAK & KENNARD LLP
By:
Scott T. Wan, I.D. No. 52660
100 North 1 Street
Post Office Box 1778
Harrisburg, P A 17105
(717) 236-1300
Daniel S. Katz, Esquire
Tydings & Rosenberg LLP
100 East Pratt Street, 26th Floor
Baltimore, MD 21202
(410) 752-9700
Counsel for Defendants Cloverland Dairy
Limited Partnership and Daniel Fox
DATE: November 21, 2003
- ..' ..
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing document upon the persons and
in the manner indicated below:
Via First Class Mail:
Patrick J. Reilly, Esquire
Gross, McGinley, LaBarre & Eaton, LLP
33 South Seventh Street
Post Office Box 4060
Allentown, PA 18105
John A. Statler, Esquire
Goldberg Katzman & Shipman, PC
320 Market Street
Post Office Box 1268
Harrisburg, P A 171 08-1268
(For Plaintiff Land O'Lakes, Inc.
and Dairy Marketing Services LLC)
(For Defendants Clouse Trucking, Inc.
and J. Edward Clouse)
skJ{J
-.. .
DATED: November 21,2003
(')
C
?
~OC;~.
[ij r,~
",::...'.
~,
u:!
J-<'-
"3
-,
C1
(:',d
~~
r'J
~A)
-'
.:;:::!
~~J
-::,:
"
\0
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ACCEPTANCE OF SERVICE
LAND O'LAKES, INC., and DAIRY
MARKETING SERVICES, LLC,
Plaintiffs
v.
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
FARTNnRSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE and
DANIEL FOX,
Defendants
No: 03-2782 Civil Term
I, Scott T. Wyland, Esquire, attorney for the Defendant, Cloverland Dairy Limited
Partnership, in the above-captioned action, hereby acknowledge receipt on 11- 21- .. .:3
2003, ofa true and correct copy of the Amended Complaint of the Plaintiffs, Land O'Lakes, Inc.
and Dairy Marketing Services, Inc., and hereby acknowledge service thereof.
W ,\ WDOX\CLlENTS\lol\c1ouse\00044300.DOC
~-
SC . T - LAND, ESQUIRE---'-
Attorney for Defendant, Cloverland
I.D. #: f2..' (,0
~, 5 ~
~ ~~
(")
~~ ,
- ;3
,-
e ,
-"l
..., Xl
~~ ~ ~a
c:- ~
..
N i
(.,)
John A. Statler. Esquire
Attorney!. D. No. 43812
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg. PA 17108-1268
Telephone: (717) 234-4161
Attorney for Defendants Clouse Trucking, Inc.
and 1. Edward Clouse
LAND 0' LAKES, INe.,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: CIVIL ACTION - LAW
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited,
Partnership, J. EDWARD CLOUSE and
DANffiL FOX,
NO. 03-2782 CIVIL TERM
: JURY TRIAL DEMANDED
Defendants
NOTICE TO PLEAD
TO: LAND O'LAKES, INC., Plaintiff
c/o PATRICK J. REILLY, ESQUIRE
Gross, McGinley, Labarre & Eaton, LLP
33 South Seventh Street
P. O. Box 4060
Allentown, PA 18105-4060
Attorneys for Plaintiff
YOU ARE REQUIRED to plead to the within Answer With New Matter within 20 days
of service hereof or a default judgment may be entered against you.
GOLDBERG, KATZMAN & SHIPMAN, P.c.
DATE /2-/7'/(/3
By:
John A Statler, Es .
Attorney I. D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, P A 17108-1268
Telephone: (717) 234-4161
Attorney for Defendants Clouse Trucking, Inc.
and 1. Edward Clouse
-
John A. Statler. Esquire
Attorney 1. D. No. 43812
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg. PA 17108-1268
Telephone: (717) 234-4161
Attorney for Defendants Clouse Trucking, Inc.
and 1. Edward Clouse
LAND 0' LAKES, INC.,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: CIVIL ACTION - LAW
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited,
Partnership, 1. EDWARD CLOUSE and
DANIEL FOX,
NO. 03-2782 CIVIL TERM
: JURY TRIAL DEMANDED
Defendants
ANSWER OF DEFENDANTS
CLOUSE TRUCKING,INC. AND J. EDWARD CLOUSE
TO PLAINTIFF'S AMENDED COMPLAINT INCLUDING NEW MATTER
AND NOW, come the Defendants, Clouse Trucking, Inc. and 1. Edward Clouse, by and
through their attorneys, Goldberg, Katzman and Shipman, P.C., who file the following Answer
Including New Matter and Crossclaim in response to Plaintiff's Complaint:
I. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
2. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the avenllents in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
3. Admitted.
4. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the avenllents in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
5. Admitted in part; denied in part. It is admitted that Defendant 1. Edward Clouse is
an adult individual who at all times relevant hereto was the Chief Executive Officer and an
authorized employee of Clouse Trucking, Inc. with an address of2075 Ritner Highway, Carlisle,
Pennsylvania 17013. Answering Defendant is without knowledge as to the particular act which
Plaintiff alleges was within the scope of his employment, and therefore denies this averment.
6. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
2
7. Denied. After feasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
8. Denied. Aftef reasonable investigation, answering Defendants afe without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
9. Admitted in part; denied in part. After reasonable investigation, answering
Defendants are without information sufficient to form a belief as to the truth or falsity of the
averment that Cloverland was a fluid milk dairy processor, commonly known as a "handler" and,
therefore. deny the same and demand strict proof at time oftrial if deemed material. It is admitted
that Clouse Trucking, Inc. was engaged by Cloverland to pick up raw milk from certain
producers, including Martin, and to deliver the faw milk to its own Of other dairy plants.
10. Admitted in part; denied in part. After reasonable investigation, answering
Defendants are without information sufficient to form a belief as to the truth or falsity of the
averment that at all times relevant to the within cause of actions, DMS marketed milk of certain
producers, including certain producers located in Pennsylvania ("DMS Producers"). It is
admitted that Clouse Trucking was engaged by DMS to pickup raw milk from producers and
deliver the faw milk to dairy plants
3
11. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that answering Defendants knew or should have known that for a period of time immediately prior
to August 6, 2001, Martin had halted shipments because of the presence of antibiotics in Martin's
raw milk.
12. Admitted.
13. Admitted.
14. Admitted.
15. Admitted.
16. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is denied that milk
received at dairy plants in Pennsylvania must be tested in accordance with procedures set further
in the "Grade A Pasteurized Milk Ordinance" published by the United States Department of
Health and Human Services, Public Health Service. Food and Drug Administration ("PMO"), in
particular as set forth in Appendix "N" of the PMO (hereinafter Appendix "N:), for the presence
of antibiotics above acceptable levels.
4
17. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is denied that the
antibiotics testing required by the PMO may be done in two steps:
a. A presumptive test is initially performed by an industry analyst
certified to conduct such test. If such test indicates a negative
result (acceptable levels of or no antibiotics), the milk may be
received for processing into dairy products for human consumption;
b. If the presumptive test is positive (unacceptable levels of
antibiotics), then a more sensitive "confirmatory" test is conducted
by a laboratory certified to perform such a confirmatory test. If
such confirmatory test indicates a negative result, the milk may be
received and processed into a dairy product for human
consumption.
18. The averments in this paragraph constitute conclusions of law to which no
response is required. In the event a response is deemed to be required, it is denied that if both a
presumptive and confirmatory test show a positive result, the milk cannot be sued for human
consumption, regardless of further testing, and must be rejected by the dairy plant.
5
19. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
20. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
21. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
22. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material. By way
of further answer, it is specifically denied that the milk was condemned.
23. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
6
24. Denied. It is denied that L VD Lab personnel placed metal seals on both openings
to the compartment of the tank truck which contained the Condemned Milk. By way of further
answer, it is specifically denied that the milk was condemned.
25. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity ofthe averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
26. Denied. It is denied that L VD Lab personnel advised the Clouse driver that the
Condemned Milk was condemned and must be dumped. By way of further answer, it is
specifically denied that the milk was condemned.
.
27. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
28. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity ofthe averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material. By way
of further answer, it is specifically denied that the milk was condemned.
7
29. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity ofthe averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material. By way
of further answer, it is specifically denied that the milk was condemned.
30. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
31. The averments in this paragraph constitute conclusions of law to which no
response is required. In the event a response is deemed to be required, it is denied that dairy
industry custom and practice common throughout Pennsylvania and Maryland is that the Dairy
handler of a producer whose milk causes a co-mingled load to be rejected is responsible for the
disposition of the Condemned Milk. It is further denied that Cloverland, as the handler
purchasing the milk of Martin, was responsible for disposition of the Condemned Milk. By way
of further answer, it is specifically denied that the milk was condemned.
32. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material. By way
of further answer, the employee who may have been contacted at Clouse Trucking is no longer
8
employed with the company. By way of further answer, it is specifically denied that the milk was
condemned.
33. Admitted in part; denied in part. It is admitted that the truck returned to a Clouse
Trucking facility. It is denied that the milk was condemned.
34. Admitted.
35. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
36. Admitted in part; denied in part. It is admitted that Clouse created an additional
delivery receipt. It is denied that Clouse forged the signature of Speidel who had picked up the
milk from Martin.
37. It is denied that Clouse also created a new delivery receipt for the DMS Milk
which had been commingled with the contaminated Cloverland Milk, which new receipt did not
disclose that both the front and rear tank compartments had been filled with producer milk as had
been indicated on the original delivery receipt and denied that Clouse forged the signature of
9
Speidel who had picked up the DMS Milk from producers. By way of further answer, it is
specifically denied that the milk was condemned and that receipts were fictitious.
38. Admitted in part; denied in part. It is admitted that Fox removed the L YD seal on
the lid of the rear compartment of the tank truck and removed the antibiotics tag placed there by
L YD. It is denied that Clouse removed the L VD seal on the lid of the rear compartment of the
tank truck and removed the antibiotics tag placed there by L YD.
39. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
40. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material. By way
of further answer the employee of Clouse Trucking who may have contacted LOL is no longer
employed with the company.
41. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time oftrial if deemed material.
10
42. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material. By way
of further answer the employee of Clouse Trucking who may have contacted LOL is no longer
employed with the company.
43. The averments in this paragraph constitute conclusions of law to which no
response is required. In the event a response is deemed to be required, it is denied that despite
knowledge that under the PMO the Condemned Milk could not be used for human consumption,
Clouse, without any authorization from DMS, directed that the Condemned Milk be delivered to
the LOL Holly Plant. By way of further answer, it is specifically denied that the milk was
condemned.
44. Denied. It is denied that Clouse directed the driver of the truck delivering the
Condemned Milk to present the Fictitious Cloverland and DMS Receipt to LOL. By way of
further answer, it is specifically denied that the milk was condemned and that the receipts were
fictitious
45. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
11
46. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity ofthe averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
47. Denied. It is specifically denied that LOL lab personnel specifically asked Clouse if
there was any reason not to take the milk, and he responded that there was not. By way of
further information, Clouse informed LOL of the known history of the milk prior to LOL's
acceptance of the milk.
48. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
49. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is denied that Clouse or
any representative of Clouse Trucking failed to advise LOL that the condemned milk had
previously failed a confirmatory antibiotics test. By way of further answer, it is specifically denied
that the milk was condemned.
50. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is denied that based
12
upon statements of Clouse, the Fictitious Cloverland Receipt and the Fictitious DMS Receipt, and
the testing which was performed, LOL received 29,506 pounds of condemned milk from the
Clouse Trucking truck. By way of further answer, it is specifically denied that the milk was
condemned.
51. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averment that the 29,506
pounds of Condemned Milk from the Clouse Trucking tank truck was pumped into a LOL raw
milk storage silo and commingled with 454,854 pounds of milk from other producers and,
therefore, deny the same and demand strict proof at time of trial if deemed material. By way of
further answer, it is specifically denied that the milk was condemned.
52. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is denied that the
delivery of the condemned milk by Cloverland and/or Clouse Trucking constituted a sale of the
condemned milk by Cloverland to LOL.
53. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a beliefas to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time oftrial if deemed material. By way
of further answer, it is specifically denied that the milk was condemned.
13
54. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
55. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
56. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
COUNT I
Land O'Lakes, Inc.
v.
Cloverland Dairy Limited Partnership
(Common Law Breach of Oral or Implied Contract)
57. Clouse Trucking, Inc. and J. Edward Clouse incorporate herein by reference their
answers to paragraphs I through 56 as is set forth at length
58. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
]4
59. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
60. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
61. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
62. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
63. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
64. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
65. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
15
66. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
WHEREFORE, Defendants Clouse Trucking, Inc. and J. Edward Clouse respectfully
request that the Plaintiff's Complaint he dismissed and that judgment be entered in favor of Clouse
Trucking, Inc. and J. Edward Clouse and against all other parties.
COUNT II
Land O'Lakes, Inc.
v.
Cloverland Dairy Limited Partnership
(Breach of Contract Under the Pennsylvania Uniform Commercial Code)
67. Clouse Trucking, Inc. and J. Edward Clouse incorporate herein by reference their
answers to paragraphs I through 66 as is set forth at length.
68. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
69. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
16
70. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
7J. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
WHEREFORE, Defendants Clouse Trucking, Inc. and 1. Edward Clouse respectfully
request that the Plaintifl's Complaint be dismissed and that judgment be entered in favor of Clouse
Trucking, Inc. and 1. Edward Clouse and against all other parties.
COUNT III
Land O'Lakes, Inc.
v.
Cloverland Dairy Limited Partnership
(Breach ofImplied Duty of Good Faith)
72. Clouse Trucking, Inc. and 1. Edward Clouse incorporate herein by reference their
answers to paragraphs 1 through 71 as is set forth at length.
73. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
]7
74. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
75. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
WHEREFORE, Defendants Clouse Trucking, Inc. and J Edward Clouse respectfully
request that the Plaintiffs Complaint be dismissed and that judgment be entered in favor of Clouse
Trucking, Inc. and J. Edward Clouse and against all other parties.
COUNT IV
Land O'Lakes, Inc.
v.
Cloverland Dairv Limited Partnership
(Breach of Implied Warranty of Merchantability)
76. Clouse Trucking, Inc. and J. Edward Clouse incorporate herein by reference their
answers to paragraphs 1 through 75 as is set forth at length.
77. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
18
78. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
79. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
80. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
81. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
WHEREFORE, Defendants Clouse Trucking, Inc. and J. Edward Clouse respectfully
request that the Plaintiff's Complaint be dismissed and that judgment be entered in favor of Clouse
Trucking, Inc. and 1. Edward Clouse and against all other parties.
COUNT V
Land O'Lakes, Inc.
v.
Cloverland Dairy Limited Partnership
(Breach of Implied Warranty of Fitness for a Particular Purpose)
82. Clouse Trucking, Inc. and 1. Edward Clouse incorporate herein by reference their
answers to paragraphs I through 81 as is set forth at length.
19
83. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
84. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
85. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
86. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
WHEREFORE, Defendants Clouse Trucking, Inc. and 1. Edward Clouse respectfully
request that the Plaintiff's Complaint be dismissed and that judgment be entered in favor of Clouse
Trucking, Inc. and 1. Edward Clouse and against all other parties.
COUNT VI
Land O'Lakes, Inc.
v.
Clouse Trucking, Inc., Cloverland Dairy
Limited Partnership, J. Edward Clouse and Daniel Fox
(Fraudulent Misrepresentation)
87. Clouse Trucking, Inc. and 1. Edward Clouse incorporate herein by reference their
answers to paragraphs I through 86 as is set forth at length.
20
88. Denied. After reasonable investigation, answering Defendants are without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, deny the same and demand strict proof at time of trial if deemed material.
89. Admitted in part; denied in part. It is specifically admitted that at all times relevant
to the within cause of action, Clouse was acting both in his individual capacity and on behalf of his
employer, as an authorized agent, and within the scope of his employment. Answering
Defendants are without information sufficient to form a belief as to the truth or falsity of the
averments that Fox was acting both in his individual capacity and on behalf of his employer, as an
authorized agent, and within the scope of his employment.
90. Denied. It is specifically denied that at the times the representations as
aforementioned were made by Clouse they were false, and were made with actual knowledge that
the raw milk was not, as represented, suitable for human consumption, or recklessness as to
whether or not the representations were true. After reasonable investigation, answering
Defendants are without information sufficient to form a belief as to the truth or falsity of the
averments that at the times the representations as aforementioned were made by Fox, they were
false and were made with actual knowledge that the raw milk was not, as represented, suitable for
human consumption or recklessness as to whether the representations were true.
21
91. Denied. It is specifically denied that the aforementioned representations were
made the answering Defendants with the intent of misleading LOL into relying upon such
representations so that it would accept the raw milk.
92. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that in justifiable reliance upon the statements made by the Defendants, LOL accepted delivery of
the Condemned Milk. By way of further answer, answering Defendants specifically deny making
inaccurate statements regarding the milk in question.
93. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, answering Defendants
specifically deny that their conduct was outrageous and that they had actual knowledge that the
condemned milk was prohibited from use and products for human consumption or acted with
reckless indifference of that knowledge and caused the condemned milk to be delivered to LOL in
conscious disregard or indifference to the risk the condemned milk would present by itself or
when commingled with other milk intended for use in products for human consumption.
94. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
22
that as a result of LOL reliance upon the representations ofthe answering Defendants as
aforementioned, LOL was caused damage in the amount of$100,898.00.
95. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that LOL's resulting injury was proximately caused by its reliance upon representations made by
the answer Defendants.
WHEREFORE, Defendants Clouse Trucking, Inc. and 1. Edward Clouse respectfully
request that the Plaintiff's Complaint be dismissed and that jud'gment be entered in favor of Clouse
Trucking, Inc. and 1. Edward Clouse and against all other parties.
COUNT VII
Land O'Lakes, Inc.
v.
Clouse Truckin~. Inc. and Cloverland Dairy Limited Partnership
(Vicarious Liability)
96. Clouse Trucking, Inc. and 1. Edward Clouse incorporate herein by reference their
answers to paragraphs I through 85 as is set forth at length.
97. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
23
that answering Defendant committed any acts of fraud and that at aU time relevant hereto, Clouse
Trucking knew or should have known that its authorized agents, servants, or employees,
including, but not limited to Clouse, were likely to commit the acts of fraud set forth above in
Court VI.
98. This averment is directed to a Defendant other than answering Defendant and,
therefore, no response is required.
99 Admitted
100. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
101. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specificaUy denied
that answering Defendant committed any acts of fraud and that as a direct and proximate result of
the fraud of Clouse Trucking's authorized agents, servants, or employees, including, but not
limited to Clouse, Clouse Trucking is vicariously liable for the damages sustained by LOL as set
forth above in Count VI.
24
102. This averment is directed to a Defendant other than answering Defendants and,
therefore, no response is required.
WHEREFORE, Defendants Clouse Trucking, Inc. and J. Edward Clouse respectfully
request that the Plaintiffs Complaint be dismissed and that judgment be entered in favor of Clouse
Trucking, Inc. and 1. Edward Clouse and against all other parties.
COUNT VIII
Land O'Lakes, Inc.
v.
Clouse Trucking, Inc. and Cloverland Dairy,
Limited Partnership, J. Edward Clouse and Daniel Fox
(Negligent Misrepresentation)
103. Clouse Trucking, Inc. and 1. Edward Clouse incorporate herein by reference their
answers to paragraphs I through 102 as is set forth at length.
104. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that the answering Defendants supplied milk which was prohibited from use in products for
human consumption and that the answering Defendants owed a duty to Land O'Lakes to supply
milk not prohibited from use in products for human consumption.
25
105. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that the milk in question was prohibited from use in products for consumption or that answering
Defendants had knowledge thereof It is specifically denied that the answering Defendants
breached the duty by supplying raw milk to Land O'Lakes when they had actual knowledge, or
had reason to know, that such raw milk was prohibited from use in products for human
consumption.
106. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that the answering Defendants made improper representations with the intent that Land O'Lakes
would rely upon such representations.
107. The averments in this paragraph constitute conclusions of law to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that the milk was not fit for human consumption or that the answering Defendants failed to
exercise reasonable care or competence in communicating to Land O'Lakes the fitness of the raw
milk for human consumption.
108. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
26
that the answering Defendants made improper representations or that Land 0 'Lakes did justifiably
rely upon the representation of the answering Defendants to its detriment.
109. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that answering Defendants made negligent misrepresentations, and that the negligent
misrepresentations made by the answering Defendants were the proximate cause of damages
suffered by LOL.
110. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that answering Defendants made negligent misrepresentations, and that as a result of the negligent
misrepresentations of the answering Defendants, LOL was caused to suffer damages in the
amount of$100,898.00.
WHEREFORE, Defendants Clouse Trucking, Inc. and 1. Edward Clouse respectfully
request that the Plaintiff's Complaint be dismissed and that judgment be entered in favor of Clouse
Trucking, Inc. and 1. Edward Clouse and against all other parties.
27
COUNT IX
Land O'Lakes, Inc.
v.
Clouse Truckin!!, Inc. and Cloverland Dairy Limited Partnership
(Vicarious Liability)
111. Clouse Trucking, Inc. and J. Edward Clouse incorporate herein by reference their
answers to paragraphs I through 110 as is set forth at length.
112. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that answering Defendants made negligent misrepresentations and that at all times relevant hereto,
Clouse Trucking knew or should have known that its authorized agents, servants, or employees
including, but not limited to Clouse, were likely to commit the acts of negligent misrepresentation
set forth above in Count VIII.
113. This averment is directed to a Defendant other than answering Defendant and,
therefore, no response is required.
114. Admitted.
28
115. This averment is directed to a Defendant other than answering Defendant and,
therefore, no response is required.
116. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that answering Defendants were negligent and that as a direct and proximate result of the
negligence of Clouse Trucking's authorized agents, servants, or employees, including, but not
limited to Clouse, Clouse Trucking is vicariously liable for the damages sustained by LOL as set
forth in Count VIII above.
117.
This averment is directed to a Defendant other than answering Defendant
and, therefore, no response is required.
WHEREFORE, Defendants Clouse Trucking, Inc. and J. Edward Clouse respectfully
request that the Plaintiff's Complaint be dismissed and that judgment be entered in favor of Clouse
Trucking, Inc. and 1. Edward Clouse and against all other parties.
29
COUNT X
Land O'Lakes, Inc.
v.
Clouse Truckine. Inc. and Cloverland Dairv Limited Partnership
(Negligence)
118. Clouse Trucking, Inc. and 1. Edward Clouse incorporate herein by reference their
answers to paragraphs 1 through 117 as is set forth at length.
119. Denied. Answering Defendant specifically denies that the milk was condemned
and not safe for dairy products intended for human consumption, and denies that Clouse Trucking
knew that the condemned milk with the Clouse Trucking truck could not he used for dairy
products for human consumption.
120. Denied. Answering Defendants specifically deny that Clouse Trucking knew that
LOL intended to use raw milk delivered by them to LOL for dairy products for human
consumption.
121. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that the delivered milk was not fit for human consumption, and it is denied that Clouse Trucking
30
had a duty not to cause to be delivered to LOL raw milk that could not be used for human
consumption.
122. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that the milk in question was condemned and not fit for human consumption, and it is denied that
Clouse Trucking had a duty to notifY LOL that condemned milk could not be used in dairy
products for human consumption.
123. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that the milk in question was condemned and not fit for human consumption, and it is denied that
Clouse Trucking and Cloverland breached the aforesaid duties when they delivered to LOL the
condemned milk that was not suitable to be used in dairy products for human consumption.
124. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, answering Defendant
specifically denies that the milk was condemned and not fit for human consumption, and denies
that Clouse Trucking breached the aforesaid duty when they failed to notifY LOL that the
condemned milk not be used in dairy products for human consumption.
31
125. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that the delivered milk was not fit for human consumption or that the milk contaminated LOL raw
milk, and it is denied that as a direct and proximate result of Clouse Trucking delivering to LOL
the Condemned Milk that can not be used in dairy products for human consumption, and/or failing
to notifY LOL that the Condemned Milk cannot be used as such, LOL commingled Condemned
Milk from the Clouse Trucking truck with LOL raw milk, thus contaminating the LOL raw milk
and causing LOL to suffer a loss of$100,898.00.
WHEREFORE, Defendants Clouse Trucking, Inc. and 1. Edward Clouse respectfully
request that the Plaintiff's Complaint be dismissed and that judgment be entered in favor of Clouse
Trucking, Inc. and J. Edward Clouse and against all other parties.
COUNT XI
DMS
v.
Clouse Truckine, Inc.
(Breach of Contract Implied in Fact or in Law)
126. Clouse Trucking, Inc. and 1. Edward Clouse incorporate herein by reference their
answers to paragraphs 1 through 125 as is set forth at length.
32
127. The averments in this paragraph constitute conclusions oflaw to which no
response is required In the event a response is deemed to be required, answering Defendant is
without information sufficient to form a belief as to the truth or falsity of the averments in this
paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed
material.
128. Denied After reasonable investigation, answering Defendant is without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, denies the same and demands strict proof at time oftrial if deemed material. By
way of further answer, Clouse Trucking did not test the milk.
129. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, Defendant is without
information sufficient to form a belief as to the truth or falsity of the averments in this paragraph
and, therefore, denies the same and demands strict proof at time of trial if deemed material.
13 o. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that Clouse Trucking materially breached the aforesaid implied agreement when it commingled the
DMS milk with the Cloverland milk.
33
131. The averments in this paragraph constitute conclusions of law to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that the Cloverland milk caused the DMS milk to be contaminated by the presence of antibiotics
so that it was rendered unsanitary and unfit for human consumption. It is further specifically
denied that Clouse Trucking breached the aforesaid implied agreement by commingling the DMS
milk with the Cloverland milk so as to cause DMS milk to be contaminated by the presence of
antibiotics so that it was rendered unsanitary and therefore, unfit for use in dairy products for
human consumption.
132. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that the DMS milk was rendered unfit for human consumption and that as a direct and proximate
result of the aforesaid commingling of the DMS milk with the Cloverland milk by Clouse
Trucking, DMS milk was rendered unfit for human consumption and, as a result, DMS suffered
damages in the amount of$4,756.00.
WHEREFORE, Defendants Clouse Trucking, Inc. and 1. Edward Clouse respectfully
request that the Plaintiff's Complaint be dismissed and that judgment be entered in favor of Clouse
Trucking, Inc. and 1. Edward Clouse and against all other parties.
34
COUNT XII
DMS
v.
Clouse Truckin!:, Inc. and Cloverland Dairv Limited Partnership
(Negligence)
133. Clouse Trucking, Inc. and 1. Edward Clouse incorporate herein by reference their
answers to paragraphs 1 through 132 as is set forth at length.
134. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that the DMS milk was contaminated and prohibited from being processed for human
consumption and it is denied that Clouse Trucking and Cloverland had a duty not to contaminate
the DMS milk in a manner that would cause the OMS milk to be prohibited from being processed
in dairy products for human consumption.
135. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that Clouse Trucking negligently breached the aforesaid duty when the Cloverland milk was
commingled with the OMS milk subsequent to Clouse Trucking picking up OMS milk.
35
136. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that the DMS milk became unsanitary and unfit for use in dairy products for human consumption
and that as a direct and proximate result of the commingling of the Cloverland milk with the DMS
milk by Clouse Trucking and/or Cloverland, the DMS milk became unsanitary and, therefore,
unfit for use in dairy products for human consumption.
137. The averments in this paragraph constitute conclusions oflaw to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that the milk was contaminated and it is denied that due to the aforesaid contamination, the DMS
milk was rejected by LVD as a result of antibiotic residue in the Cloverland milk with which it
was commingled.
138. The averments in this paragraph constitute conclusions of law to which no
response is required. In the event a response is deemed to be required, it is specifically denied
that as a direct and proximate result of the aforesaid commingling and subsequent rejection, DMS
suffered damages in that rejection caused it to lose the value of the DMS milk in the amount of
$4,756.00.
36
WHEREFORE, Defendants Clouse Trucking, Inc. and J. Edward Clouse respectfully
request that the Plaintiff's Complaint be dismissed and that judgment be entered in favor of Clouse
Trucking, Inc. and 1. Edward Clouse and against all other parties.
NEW MATTER
By way of additional answer and reply, answering Defendants raise the following New
Matters:
139. The Plaintitl's Amended Complaint fails to state a cause of action upon which
relief can be granted.
140. Some or all of the Plaintitl's claims are barred by the applicable statute of
limitations.
141. Some or all of the Plaintitl's claims are barred in whole or in part by the doctrine
of comparative/contributory negligence and/or the doctrine of assumption of the risk.
37
142. Discovery may reveal that the Plaintiff failed to mitigate its damages.
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.c.
By:
John A. Statrer, Es~
Attorney 1. D. No. 43812
320 Market Street
P. O. Box 1268
Harrisburg, P A 17108-1268
Telephone: (717) 234-4161
Attorneys for Defendants Clouse Trucking, Inc.
and 1. Edward Clouse
DATE: /L!cr / iJ.5
101756.1
38
VERIFICA nON
I, J. EDWARD CLOUSE, hereby acknowledge that I am a Defendant in this action; that
I have read the foregoing Answer With New Matter; and that the facts stated therein are true and
correct to the best of my knowledge, information and belief.
I understand that any false statements herein are made subject to penalties of 18 Pa. C. s.
Section 4904, relating to unsworn falsification to authorities.
~<~ !!4-f-l;;)
~. EDWARD CLOUSE
DATE:
- DEC-08-2003 MON 05:10 PM CLOUSE TRUCKING FAX NO, 7172499300
12/0B/200J lJ:U~ ~AX t "~Jqb~IU UULUDcn~ nnIL~nl'
p, 02
~......
VE~JFICA TIQN
/J&t{l7l/1 .l. (0.~4-f'1 hereby acknowledge that Clouse Trucking, Inc. is a
Dc:ft:llu~nt in this actiOrl and that I am authorized 10 make this v~rification on its bc:hlllf; that 1
have read the foregoing Answer and New Matter; and tha1the facts staled therein are true and
como:ct to the b""t of my knowledge, infonnation and belief.
1 understand that any false statements herein are made subject to penalties of 18 Pa. C, S.
Section 4904. relating to unsworn flllsific.ation to authorities.
CLOUSE TRUCKING, INC.
;) .tdt.<) Q. jr- J C (6 vS ~
By: f4:t!t1 J4/LJ-- e;;, A .-t.JA~
~
PATEl
CERTIFICA TE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing Answer of
Defendants Clouse Trucking, Inc. and J. Edward Clouse to Plaintiff's Amended Complaint
including New matter upon all parties or counsel of record by depositing a copy of same in the
United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid on the
9\V\
day of
'Oe~~
, 2003, addressed to the following:
Patrick 1. Reilly, Esquire
Gross, McGinley, Labarre & Eaton, LLP
33 South Seventh Street
P. 0 Box 4060
Allentown, PA 18105-4060
Scott T. Wyland, Esquire
Hawke, McKeon, Sniscak & Kennard
100 North Tenth Street
Harrisburg, PA 17101
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.c.
By
John A. Statler, Es e
Attorney I. D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA ]7]08-1268
Telephone: (717) 234-4161
Attorney for Defendants Clouse Trucking, Inc.
and 1. Edward Clouse
(") Q b
('-~ w -r,
r::J - ,
..,) - "1
rT! ,. C; ,
r "
<
U? (
-'. i
r- -~
~ " ,-:!':
"
c;: ( i:;~)
.....-- , ")"'1
'ie, r~;. ~~ - .,
--;; ~(j
-, (:::> -<
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANlA
CIVIL ACTION - LAW
LAND O'LAKES, INe., and DAIRY
MARKETING SERVICES, LLC,
Plaintiffs
v.
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE and
DANIEL FOX,
Defendants
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No: 03-2782 Civil Term
PLAINTIFFS' ANSWER TO THE PRELIMINARY OBJECTIONS OF
DEFENDANTS CLOVERLAND DAIRY LIMITED PARTNERSHIP AND
DANIEL FOX
Plaintiffs Land O'Lakes, Inc. ("LOL") and Dairy Marketing Services, LLC ("DMS")
(collectively, the "Plaintiffs"), by and through their Counsel, Gross, McGinley, LaBarre &
Eaton, LLP, respectfully answer the Preliminary Objections filed by Defendants Cloverland
Dairy Limited Partnership ("Cloverland") and Daniel Fox ("Fox") (collectively, the
"Defendants") as follows:
I. Demurrer - Punitive Damages
1. Admitted.
2. Denied. The allegations of paragraph 2 are conclusions of law to which no
response is required. To the extent that paragraph 2 purports to assert factual allegations,
Plaintiffs deny those allegations and respectfully refer the Court to the complete text of the
Amended Complaint for the full and accurate description ofthe allegations thereof.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court overrule the
Preliminary Objections of Defendants Cloverland and Fox or, in the alternative, grant Plaintiffs
leave to file an amended pleading in the event the Court sustains said objections.
II. Demurrer to Count III
3. Plaintiffs incorporate their answers to paragraphs 1 and 2.
4. Denied. The said Count III speaks for itself.
5. Denied. The allegations of paragraph 5 are conclusions of law to which no
response is required.
6. Denied. The allegations of paragraph 6 are conclusions of law to which no
response IS required. To the extent that paragraph 6 purports to assert factual allegations,
Plaintiffs deny those allegations.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court overrule the
Preliminary Objections of Defendants Cloverland and Fox or, in the alternative, grant Plaintiffs
leave to file an amended pleading in the event the Court sustains said objections.
III. Demurrer to Count V
7. Plaintiffs incorporate their answers to paragraphs 1 through 6.
8. Denied. The said Count V speaks for itself.
9. Denied. The allegations of paragraph 9 are conclusions of law to which no
response is required.
10. Denied. The allegations of paragraph 10 are conclusions of law to which no
response is required. By way of further answer, the allegations of Count V speak for themselves.
11. The allegations of paragraph 11 are conclusions of law to which no response is
required. By way of further answer, the allegations of Count V speak for themselves.
2
WHEREFORE, Plaintiffs respectfully request that this Honorable Court overrule the
Preliminary Objections of Defendants Cloverland and Fox or, in the alternative, grant Plaintiffs
leave to file an amended pleading in the event the Court sustains said objections.
IV. Demurrer to Counts VII and IX
12. Plaintiffs incorporate their answers to paragraphs 1 through II.
13. Denied. The said Counts VII and IX speak for themselves.
14. Denied. The allegations of paragraph 14 are conclusions of law to which no
response is required.
15. Denied. The allegations of paragraph 15 are conclusions of law to which no
response is required. By way of further answer, the allegations of Counts VII and IX speak for
themselves.
16. Denied. The allegations of paragraph 16 are conclusions of law to which no
response is required.
17. Denied. The allegations of paragraph 17 are conclusions of law to which no
response is required. By way of further answer, the allegations of Counts VII and IX speak for
themselves.
18. Denied. The allegations of paragraph 18 are conclusions of law to which no
response is required. By way of further answer, the allegations of Counts VII and IX speak for
themselves.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court overrule the
Preliminary Objections of Defendants Cloverland and Fox or, in the alternative, grant Plaintiffs
leave to file an amended pleading in the event the Court sustains said objections.
3
V. Lack of Conformity to Law or Rule of Court - Lack of Specificity of Damages
19. Plaintiffs incorporate their answers to paragraphs I through 18.
20. Denied. The allegations of paragraph 20 are conclusions of law to which no
response is required.
21. Admitted.
22. Denied. The allegations of paragraph 22 are conclusions of law to which no
response is required. To the extent that paragraph 22 purports to assert factual allegations,
Plaintiff LOL denies those allegations and respectfully refers the Court to the complete text of
the Amended Complaint for the full and accurate description of the allegations thereof. By way
of further answer, Defendants can obtain through discovery more specific information
concerning Plaintiffs' damages.
23. Denied. Plaintiffs' Complaint provides sufficient specificity to enable Defendants
to answer.
24. Admitted.
25. Denied. The allegations of paragraph 25 are conclusions of law to which no
response is required. To the extent that paragraph 25 purports to assert factual allegations,
Plaintiff DMS denies those allegations and respectfully refers the Court to the complete text of
the Amended Complaint for the full and accurate description of the allegations thereof. By way
of further answer, Defendants can obtain through discovery more specific information
concerning Plaintiffs' damages.
26. Denied. Plaintiffs' Complaint provides sufficient specificity to enable Defendants
to answer.
4
WHEREFORE, Plaintiffs respectfully request that this Honorable Court overrule the
Preliminary Objections of Defendants Cloverland and Fox or, in the alternative, grant Plaintiffs
leave to file an amended pleading in the event the Court sustains said objections.
RESPECTFULLY SUBMITTED,
I):y, LaBARRE & EATON, LLP
/(
L-
BY:
Date:
/JI fJ'7(v J
,
P A K J. REILLY, ESQUIRE
Attorney for Plaintiffs
33 South 7th Street, PO Box 4060
Allentown, PA 18105-4060
(610) 820-5450
J.D. #32235
W,I WDOXICLIENTSllollc1ouseI00047434.DOC
5
CERTIFICATE OF SERVICE
This is to certify that the foregoing PLAINTIFFS' ANSWER TO THE PRELIMINARY
OBJECTIONS OF DEFENDANTS CLOVERLAND DAIRY LIMITED PARTNERSHIP AND
DANIEL FOX was mailed by first class United States mail, postage prepaid, on this
day of
December, 2003, upon the following:
John A. Statler, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
PO Box 1268
Harrisburg, P A 17108-1268
Attorney for Clouse Trucking, Inc. and J. Edward Clouse
Scott T. Wyland, Esquire
Hawke, McKeon, Sniscak & Kennard LLP
100 North Tenth Street
Harrisburg, PA 17101
Attorney for Cloverland Dairy Limited Partnership and Daniel Fox
GROSS, McG Y, LaBARRE & EATON, LLP
//"""-
DATE:
P()~(J1
-
BY:
PAT~J)JJ. REILLY, ESQUIRE
Attorney for Plaintiffs
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
(610) 820-5450
J.D. #32235
Land O'Lakes v. Clouse Trucking
W:\ WDOX\CLIENTS\lo1\clouse\0004 7562.DOC
o
c-
uft:
nl\'"
;:,.f ;.':
-";'>";;:;.
(~) ",
_,'",0'
r
K
"c-
~EJ
-~.;
.(:""
::<
~
=>
'....
CJ
f"T1
C"")
W
~
:t:n
m
-om
::06
o
'---.(
:r=ii
<;.?o
--
C?fn
:?c
-,
"'U
~
-...
r:?
.L-
0')
"II
II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LAND O'LAKES, INC., and DAIRY )
MARKETING SERVICES, LLC, )
)
Plaintiffs )
)
v. )
)
CLOUSE TRUCKING, INC., )
CLOVERLAND DAIRY LIMITED )
PARTNERSHIP, a Maryland Limited )
Partnership, J. EDWARD CLOUSE and )
DANIEL FOX, )
)
Defundants )
No: 03-2782 Civil Term
PRAECIPE FOR ARGUMENT
TO THE PROTHONOTARY:
Please list the within matter for the next Argument list.
1. Matter to be argued: Preliminary Objections of Defendants Cloverland Dairy
Limited Partnership and Daniel Fox.
2. Counsel for the Parties:
For Plaintiffs, Land O'Lakes, Inc. and Dairy Marketing Services, LLC:
Patrick J. Reilly, Esquire
Gross, McGinley, LaBarre & Eaton, LLP
33 South 7th Street, PO Box 4060
Allentown, P A 18105-4060
ID No: 32235
(610) 820-5450
For Defendants Clouse Trucking, Inc. and J. Edward Clouse:
John A. Statler, Esquire
Goldberg, Katzman & Shipman, P.C.,
320 Market Street, PO Box 1268
Harrisburg, PA 17108-1268
ID No: 43812
(717) 234-4161
For Defendants Cloverland Dairy Limited Partnership and Daniel Fox:
Scott T. Wyland, Esquire
Hawke, McKeon, Sniscak & Kennard LLP
100 North Tenth Street
Harrisburg, P A 17101
ID No: 52660
(717) 236-1300
3. I will notify all parties, in writing, within two days that the matter has been listed
for argument.
4. Argument Court Date: February 4, 2004
GROSS, McGINLEY, LaBARRE & EATON, LLP
j. .
BY: ,(-,0-
PA CKJ.REILLY,ESQUIRE
Attorney for Plaintiffs
33 South 7th Street
PO Box 4060
Allentown, PA 18105-4060
(610) 820-5450
J.D. #32235
Date: 1(7(1
W,I WDOXlCLIENTSIlollc1ollseI00048132.DOC
2
CERTIFICATE OF SERVICE
This is to certify that the foregoing PRAECIPE FOR ARGUMENT was mailed by first class
United States mail, postage prepaid, and this ~, day of January. 2004, upon the following:
John A. Statler, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
PO Box 1268
Harrisburg, PA 17108-1268
Attorney for Clouse Trucking, Inc. and J. Edward Clouse
Scott T. Wyland, Esquire
Hawke, McKeon, Sniscak & Kennard LLP
100 North Tenth Street
Harrisburg, PA 17101
Attorney for Cloverland Dairy Limited Partnership and Daniel Fox
DATE:
I ( 7/0 f
. ,
GROSS, Mc < ~ LaBARRE & EATON, LLP
BY: .~.
PAT J.REILLY,ESQUIRE
Attorney for Plaintiffs
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
(610) 820-5450
J.D. #32235
Land O'Lakes v. Clouse Trucking
W ,I WDOXlCLIENTSllollc1ollseI00041817 .DOC
....
o
s:
cBrT:;
~_~-,~ I
c,,'
r.::
i~~
~,/. \. .'
"',::::' I::i
~,.~;
:::"::1
~.
,
.....,
,,~
=
..c-
~
;.c.::
o
-n
::j
f'll"
f-~.
:O!:!.l
~,;.~ '....rJ
~::::j (~)
~~~
;~.,.!
-..""
-1-'
,
CD
~
-'-
'"
CJ
_.,.-
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LAND O'LAKES, INC., and DAIRY
MARKETING SERVICES, LLC,
Plaintiffs
v.
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE and
DANIEL FOX,
Defendants
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No: 03-2782 Civil Term
PLAINTIFFS' ANSWER TO NEW MATTER OF CLOUSE TRUCKING,
INC. AND J. EDWARD CLOUSE
139. Denied as a conclusion oflaw to which not response is required.
140. Denied as a conclusion oflaw to which not response is required.
141. Denied as a conclusion oflaw to which not response is required.
142. Denied. No response required of the Plaintiffs. To the extent that a response is
required, Plaintiffs are withont knowledge or information sufficient to form a belief as to the
truth ofthe averments contained in paragraph 142.
Date:
I jrlu,"(
W:\ WDOX\CLIENTS\lol\c1ouse\00046185.DOC
::008, M'G~..~~ARRE & EATON, ill'
~ J. REILLY, ESQUIRE
Attorney for Plaintiffs
33 South 7th Street, PO Box 4060
Allentown, P A 18105-4060
(610) 820-5450
J.D. #32235
VERIFICATION
I, Dennis Schad, hereby state and verify that I am the ]};ef(!i:lJ~ of j(1I.eL~(;lf...ff
Land O'Lakes, Inc., that I am anthorized to make this Verification on behalf of said corporation, and
that the facts set forth in PLAINTIFFS' ANSWER TO NEW MATTER OF CLOUSE TRUCKING,
INC. AND J. EDWARD CLOUSE are true and correct, based upon personal knowledge,
information, and belief.
I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A.
Section 4904, relating to unsworn falsification to authorities.
BY:
Date: /;'/1-1/cJ .3
LOL v. Clouse Trucking
W ,I WDOXlCLIENTS\lollclollseI00046190.DOC
CERTIFICATE OF SERVICE
This is to certify that PLAINTIFFS' ANSWER TO NEW MATTER OF CLOUSE
TRUCKING, INC. AND J. EDWARD CLOUSE was mailed by first class United States mail,
postage prepaid, and this ~--\t\. day of January, 2004, upon the following:
John A. Statler, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
PO Box 1268
Harrisburg, P A 17108-1268
Attorney for Clouse Trucking, Inc. and J. Edward Clouse
Scott T. Wyland, Esquire
Hawke, McKeon, Sniscak & Kennard LLP
100 North Tenth Street
Harrisburg, PA 17101
Attorney for Cloverland Dairy Limited Partnership and Daniel Fox
DATE:
/(9/0~
GROSS, MCn~Y'.LaBARRE. & EATON, LLP
7J~~
BY' / .
. P A TRI~r(J. ILLY, ESQUIRE
Attorney for Plaintiffs
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
(610) 820-5450
J.D. #32235
Land O'Lakes v. Clouse Trucking
W,I WDOXlCLIENTSllollclollseI00041817.DOC
.
:j
.....,
c::.:>
5-::~
G
-n
-l
:r:-r
r11r=
-,.,fTl
-\'ic)
;~~~~
~:)~~
>.:.:
<-
":>:."
:J:::
N
::T!..
(,)
;.
Ci1
~:J
..,:.,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LAND O'LAKES, INC., and DAIRY
MARKETING SERVICES, LLC,
Plaintiffs
v.
CLOUSE TRUCKING, INe.,
CLOVERLAND DAIRY LIMITED
P AR1NERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE and
DANIEL FOX,
Defendants
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No: 03-2782 Civil Term
CERTIFICATE PREREOillSITE TO SERVICE OF A SUBPOENA
PURSUANT TO PA.R.C.P. 4009.22
As a prerequisite to service of subpoenas for Documents and Things pursuant to Rule 4009.22, Land
O'Lakes, Inc. and Dairy Marketing Services, LLC, certify that:
1. A Notice of Intent to Serve the subpoenas with a copy ofthe subpoenas attached thereto was
mailed or delivered to each party or their counsel on March 22, 2004.
2. A copy of the Notice of Intent, including the proposed Subpoenas, is attached to the
Certificate.
3. No objection to the subpoenas has been received, and
4. The subpoenas that will be served are identical to the subpoenas that are attached to the
Notice of Intent to Serve the subpoenas.
DATE:
1./1/1 ?,
W ,I WDOXlCLIENTSllol\clollseI00057794.DOC
By:
~, LaBARRE & EATON, LLP
j7~
PATRI .REILLY,ESQUIRE
Attorney for Plaintiffs, Land O'Lakes, Inc. and Dairy
Marketing Services, LLC
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
(610) 820-5450
J.D. #32235
GROSS, Mc
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LAND O'LAKES, INe., and DAIRY
MARKETING SERVICES, LLC,
Plaintiffs
v.
CLOUSE TRUCKING, INC"
CLOVERLAND DAIRY LIMITED
PAR1NERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE and
DANIEL FOX,
Defendants
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No: 03-2782 Civil Term
NOTICE OF INTENT TO SERVE A SUBPOENA TO
PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY
PURSUANT TO RULE 4009.21
To:
John A. Statler, Esquire
Goldberg, Katzman & Shipman, P.e.
320 Market Street
PO Box 1268
Harrisburg, PA 17108-1268
Date: March ;),~~ , 2004
Scott T. Wyland, Esquire
Hawke, McKeon, Sniscak & Kennard LLP
100 North Tenth Street
Harrisburg, PA 17101
Land O'Lakes, Inc. and Diary Marketing Services, LLC intend to serve subpoenas identical to the
ones that are attached to this Notice. You have twenty (20) days from the date listed below in which to file of
record and serve upon the undersigned an objection to the subpoenas. If no objection is made the subpoenal
may be served.
Date::', I Z"2. \ ell
W:\ WDOX\CLIENTS\Iol\clouse\OOOS4565.DOC
~_T/"--'~:
GROSS, McG~EY! LaBARRE & EATON, LLP
t~____ _ ,"-
BY: ;Z ..~><\: \''-
P A TRldK J. REILLY, ESQUIRE
Attorney for Plaintiffs
33 South 7th Street, P.O. Box 4060
Allentown, PA 18105-4060
(610) 820-5450
I.D. #32235
COMMONWEALTH OF PENNSYL VANIA
COUNTY OF CUM~R!..hND
Land O'Lakes, Inc. and Dairy Marketing
Serives, LLC,
Pl ai ntiffs
v.
File NO..J13-?7R? r.i vi 1 Tprm
Clouse Trucking, Inc., Cloverland Dairy
Limited Partnerships, a Maryland Limited
Partnership, J. Edward Clouse and Daniel
Defendants
Fox,
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Pennsyl vani a Department of Agri cul ture, Bureau of Food Safety and LaBoratory Servi ces ,
Di ~ is'j on of ~lil k San ita t.j on (Name of Person or Entity)
2301 North Cameron Street, Harrisburg, PA 17110-9408
Within twenty (20) days after service of this subpoena, you are ordered by the c;ourt to produce the following documcnts or
things:A copy of any and all files relating to an incident occurring on Au~ust 6, 2001 in which
Clouse Trucklng company----cJellvered to Land 0' Lakes, Holly Spnngs, mllk t at had been tested
positive both by presumptive test and confirmatory test for antibiotics. The original bills
>et of laden numbers described in this indicent are 275835 and 45253.
at: 33 South 7th Street, PO Box 4060, ~f Allentovm, PA 18105-4060
You may deli vcr or mail legible copies of the documents or produce things requested by this subpoena, togethcr \\ith thc
certificatc of compliance, to the party making this request at the address listed above. You have the right to seek in advance thc
reasonable cost of preparing thc copies or producing the things sought.
If you fail to produce thc documents or things required by this subpoena within twenty (20) days after its' scrvicc, the party
serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: Patrick J. Reilly, Esquire
ADDRESS: 33 South 7th Street, PO Box 4060
Allentown, PA 18105-4060
TELEPHONE: (610) 820-5450
SUPREME COURT 10/# 32235
AlTORNEYFOR: Plaintiffs
DATE:
March J7, 2004
Seal ofthe Court
BY THE COURT:
d.l4.)~)
Prollhonotary/Clcrk, C' ISlon
~ {)..-.. p . p '7?Z (YlM :7~r
D uty
c.
(Elf. 7/97)
COMMONWEALTH OF PENNSYL VANIA
COUNTY OF CUMBERLAND
Land O'Lakes, Inc. and Dairy Marketing
Serives, LLC,
Plaintiffs
v.
File NO..J13-:>7R? r.i vi 1 Tprm
Clouse Trucking, Inc., Cloverland Dairy
Limited Partnerships, a Maryland Limited
Partnership, J. Edward Clouse and Daniel
Defendants
Fox,
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Commonwealth of Pennsyl vani a Mil k Marketi n9 Board, 2301 N5rth Cameron Street
Harri sburg, PA 17110-9408 (Name of Person or Entil)')
Within twenty (20) days after service of this subpoena, you are ordered by the l:ourt to produce the following documents or
things: A copy of any and all files relatina to an incident occurring on Au~ust 6, 2001 in which
Clouse lrucklng Company dellvered to Lan O'Lakes, Holly Spnngs, milk t at had been tested
positive both by presumptive test and confirmatory test for antibiotics. The original bills
~ of laden numbers described in this indicent are 275835 and 45253.
at: 33 South 7th Street, PO Box 4060, ~~f Allento~m, PA 18105-4060
Yau may deliver or mail legible copies of the documenls or produce things requested by this subpoena, together \\ith the
certificate of compliance, 10 the party making this request at the address listed above. You have the right to seek in advance the
reasonable cost of preparing the copies or producing the things sought.
If)'ou fail to produce the documents or things required by this subpoena wilhin twenty (20) days after its' service, the party
serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: Patrick J. Reilly, Esquire
ADDRESS: 33 South 7th Street, PO Box 4060
Allentown, PA 18105-4060
TELEPHONE: (610) 820-5450
SUPREME COURT 1011 32235
ATIORNEY FOR: Plaintiffs
DATE:
March J7 I 2004
Seal of the Court
BY THE COURT:
_[JuJ~i>
Prothonotary/C eric, Ci' Ivision
an--<-_~ .~A.J~.-r--
u!y
'----
(EfT. 7/97)
CERTIFICATE OF SERVICE
This is to certify that the foregoing NOTICE OF INTENT TO SERVE A SUBPOENA TO
PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21
(;
was mailed by first class United States mail, postage prepaid, and this d.~)I'"C day of March, 2004,
upon the following:
John A. Statler, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
PO Box 1268
Harrisburg, PA 17108-1268
Attorney for Clouse Trucking, Inc. and J. Edward Clouse
Scott T. Wyland, Esquire
Hawke, McKeon, Sniscak & Kennard LLP
100 North Tenth Street
Harrisburg, P A 17101
Attorney for Cloverland Dairy Limited Partnership and Daniel Fox
n. ,) -, I
DATE:. ,~Z_ ,,'-\
~.-,
/ I
GROSS, McGI;NLI;Y, LaBARRE & EATON, LLP
, /
l,~~,,'-
';' \ ...---,
BY: / >.~-" "
PATRICK'J)REiLLY, ESQUIRE
Attorney fi)r Plaintiffs
33 South 7th Street
P.O. Box 4060
Allentown, P A 18105-4060
(610) 820-5450
J.D. #32235
Land O'Lakes v. Clouse Trucking
W,I WDOXlCLIENTSllol\clollseIOOO41817.DOC
CERTIFICATE OF SERVICE
This is to certify that the foregoing CERTIFICATE PREREQUISITE TO SERVICE OF A
SUBPOENA PURSUANT TO PA.R.C.P. 4009.22, was mailed by first class United States mail,
.:A
postage prepaid, and this I (]. day of April, 2004, upon the :following:
Benjamin Andreozzi, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
PO Box 1268
Harrisburg, PA 17108-1268
Attorney for Clouse Trucking, Inc. and J. Edward Clouse
Scott T. Wyland, Esquire
Hawke, McKeon, Sniscak & Kennard LLP
100 North Tenth Street
Harrisburg, P A 17101
Attorney for Cloverland Dairy Limited Partnership and Daniel Fox
DATE:
V(/lfo 7
GROSS, M.c ~,LaBARRE & EATON, LLP
BY: I ~
PAT .c::~ . REILLY, ESQUIRE
Attorney for Plaintiffs
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
(610) 820-5450
J.D. #32235
Land O'Lakes v. Clouse Trucking
W,I WDOXlCLIENTSllol\clollseI00041817 .DOC
LAND 0' LAKES, INC., and
DAIRY MARKETING SRVS., LLC
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LMTD.
PARTNERSHIP, a MARYLAND LMTD.
PARTNERSHIP, J. EDWARD CLOUSE
And DANIEL FOX
Defendants
NO. 03-27:32 CIVIL TERM
PRAECIPE FOR WITHDRAWAL OF A~'PEARANCE
TO THE PROTHONOTARY:
TRUCKING,
matter.
Kindly withdraw my appearance
INC. and J. EDWARD CLOUSE,
for Defendants, CLOUSE
in the above-captioned
By:
ZMAN & SHIPMAN, P.C.
ESQUIRE
17108-1268
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
TRUCKING,
designate
19603 as
served.
Kindly enter our appearance fOl~ Defendants, CLOUSE
INC. and J. EDWARD CLOUSE, in the above-case and
540 Court Street, P. O. Box 542, Reading, Pennsylvania
the place where papers, process and notices may be
Respectfully submitted,
F
FORRY, P.C.
By:
JOHN A. STA ESQUIRE
540 Court Street, P.O. Box 542
Reading, PA 19603; (610) 777-5700
Attorney I.D. #43812
0 ....., 0
<=
c: <= -n
? ...-
.~.. :x :r. 'Tl
"'"'Ml"T_
ri'iti\ ". n1--
2::::::1 -< tn
~S;, N j50
Ul 06
c";>f~ ~:;j
~~~ ~
::Ii: ~~(~)
~c' "",,".'\1
".~; ~ (~.
,~ ?E
::::! N
t.n .<
LAND O'LAKES, INC., and
DAIRY MARKETING SRVS., LLC
Plaintiffs
vs.
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LMTD.
PARTNERSHIP, a MARYLAND LMTD.
PARTNERSHIP, J. EDWARD CLOUSE
And DANIEL FOX
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAlID COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 03-2782 CIVIL TERM
CERTIFICATE OF SERVICE
I, JOHN A. STATLER, ESQUIRE, of Ferry, Ullman, Ullman &
Forry, P.C., hereby certify a copy the Withdrawal/Entry of
Appearance of Defendants, Clouse Truckin9, Inc. and J. Edward
Clouse, was mailed by first-class mail, addressed as follows:
PATRICK J. REILLY, ESQUIRE
Gross McGinley LaBarre & Eaton
33 South 7th Street
P. O. Box 4060
Allentown, PA 18105-4060
SCOTT T. WYLAND, ESQUIRE
Hawke McKeon Sniscak & Kennard
100 North Tenth Street
HarriSbur:g, PA 1710
BENJAMIN B. ANDREOZZI, ESQUIRE
Goldberg Katzman & Shipman, P.C.
320 Market Street; Strawberry Square
P. O. Box 1268
Harrisburg, PA 17108-1268
I understand that the statements herein are made subject to
the penalties of 18 Pa. C.S.A. Section 1408 relating to
falsification to authorities.
DATE: May 24, 2004
~'QU-=
8- '"
<=> Sf;
? ~
'? ~~::~ :% 5""
!il!., >-
2(~-: -c n1-oJ
hi
w..t: N "U~
U1 :0
~ 0,
< -0 5" .r;
>c:: Q"Tl
Z ::ll: -;.ooC)
~t.~ N Om
...-::::... ,- ..:-<
..... N )>
-< ~D
tJ1 -<
LAND 0' LAKES, INC., &
DAIRY MARKETING
SERVICES, LLC,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
CLOUSE TRUCKING, INC. : NO. 2003-2782 CIVIL TERM
CLOVERLAND DAIRY
LIMITED PARTNERSHIP,
A Maryland Limited
Partnership, J. EDWARD
CLOUSE and DANIEL FOX: CIVIL ACTION - LAW
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS
CLOVERLAND DAIRY LIMITED PARTNERSHIP AND DANIEL FOX
AND NOW, this
BEFORE HESS. GUIDO. JJ.
ORDER OF COURT
"A day of JUNE, 2004, the Preliminary Objections of
Defendants' Cloverland Dairy Limited Partnership and Daniel Fox to Plaintiffs'
Amended Complaint are DENIED.
Edward E. Guido, J.
Patrick J. Reilly, Esquire
John A. Statler, Esquire \ ~
Scott T. Wyland, Esquire I
~
~
(... If ,tJV
:sld
)-
L-'
~t:
~-
W()
(,,);;'::-
j:f:Q
,..J..::.L
g~
::J
a:lU
IE
u.
o
r-
E
/
:5
:.~~
-..1,";7'
':")<
('~ ;::.:
~:.J~
".:, , /-
"<~(:
J"~" ::4
'iJ,:jJ
~.,J c..
""':'::
:'5
()
::lC
c..
~
:::>
-.
-""
=
=
.....
LAND 0' LAKES, INC., &
DAIRY MARKETING
SERVICES, LLC,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CLOUSE TRUCKING, INC.: NO. 2003-2782 CIVIL TERM
CLOVERLAND DAIRY
LIMITED PARTNERSHIP,
A Maryland Limited
Partnership, J. EDWARD
CLOUSE and DANIEL FOX: CIVIL ACTION - LAW
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS
CLOVERLAND DAIRY LIMITED PARTNERSHIP AND DANIEL FOX
BEFORE HESS. GUIDO. JJ.
OPINION AND ORDER OF COURT
Currently before us are several preliminary objections to plaintiffs' amended
complaint filed by defendants Cloverland Dairy Limited Partnership (hereinafter
"Cloverland") and Daniel Fox (hereinafter "FOX,,).l Before we address the objections, we
will review the facts as set forth in the complaint.
FACTUALBACKGRO~ID
Plaintiff Land 0' Lakes, Inc. operates a dairy processing plant in Mount Holly
Springs. It receives truck loads of milk which it turns into products for human
consumption. Cloverland was a "handler", or middleman, who arranged getting the raw
I The preliminary objections involve only those counts involving Plaintiff Land O'Lakes. Therefore, when
we use the term "Plaintiff' in our factual recitation, we will be referring to Land 0' Lakes.
NO. 2003-2782 CIVIL TERM
milk from the producers to plaintiff? Fox was an employee of CloverIand acting within
the scope of his employment.
Under federa11aw all milk intended to be used for human consumption is subject
to certain testing procedureS. A particular truck load of milk procured by C10verland
failed one of the required testS. The testing lab placed seals on the tank truck indicating
that the milk therein was unfit for human consumption. Pursuant to industry custom, it
was C10ver1and's responsibility to dispose of the condemned milk. Rather than carry out
its duty C10ver1and, through Fox, removed the seals, fa1siJied documents and caused the
milk to be delivered to plaintiff's plant.
plaintiff commingled 30,000 pounds of the condemned milk with other milk in its
storage silo. When it discovered the chicanery that had occurred, plaintiff was required
to destroy almost Y2 million pounds of milk.
DISCUSSION
Plaintiffs filed a twelve count complaint based upon the above conduct. The
complaint was subsequently amended. Defendants C10verIand and Fox have filed five
separate preliminary objections involving the first ten counts of the amended complaint.
In essence the objections are demurrers to the claim for punitive damages as well as to
Count III ("Breach of Implied Duty of Good Faith") Count V ("Breach ofImplied
Warranty for a particular purpose") and the vicarious liability claims contained in Counts
VII and IX. In addition, a final objection challenges the specificity of damages pled in
each of the first ten counts. The demurrer to Counts V, VII and IX as well as the
objection involving specificity are clearly without merit and will be dismissed without
2 Defendants Clouse Trucking, Inc. and J. Edward Clouse were engaged by Cloverland to actually haul the
milk in question.
2
NO. 2003-2782 CIVIL TERM
discussion. The remaining objections in the nature of a demurrer will be dismissed for
the reasons hereinafter set forth.
Standard of Review.
The standard to be applied to preliminary objections in the nature of a demurrer
was succinctly stated by our Supreme Court as follows:
A demurrer can only be sustained where the complaint is clearly
insufficient to establish the pleader's right to relief. For the purpose of
testing the legal sufficiency of the challenged pleading a preliminary
objection in the nature of a demurrer admits as true all well-pleaded,
material, relevant facts, and every inference fairly deducible from
those facts.
Since the sustaining of a demurrer results in a denial of the pleader's
claim or a dismissal of his suit, a preliminary objection in the nature of
a demurrer should be sustained only in cased that clearly and without a
doubt fail to state a claim for which relief may be granted.
County of Allegheny v. Commonwealth, 507 Pa, 360, 372 490 A.2d 402408 (1985)
(citations omitted). Furthermore, when ruling upon a demurrer, we are limited to a
review of the allegations set forth in the complaint. Mellon Bank, N.A. v. Fabinyi, 437
Pa.Super. 559, 650 A.2d 895 (1994).
Punitive Damages.
Punitive damages may be awarded if it can be shown that defendant's conduct
was "outrageous" resulting from "evil motive" or "reckless indifference to the rights of
others." Feld v. Merriam, 506 Pa. 383, 395 485 A.2d 742,747 (1984). Defendants'
intentional delivery of milk it knew had been declared unfit for human consumption is
certainly sufficient to meet this standard.
3
NO. 2003-2782 CIVIL TERM
Breacb of Implied Duty of Good Faitb.
Count III of the amended complaint is founded upon an alleged breach of the
obligation of good faith imposed under Section 1203 of the Uniform Commercial Code.3
Defendant argues that a violation of Section 1203 does not give rise to an independent
cause of action. They contend that any such claim must be based upon a contract
governed by the UCC. Plaintiffs do not disagree. However, they correctly point out that
Count II of their amended complaint alleges a breach of contract under the Uniform
Commercial Code. Count III incorporates those allegations. Therefore, Count III alleges
both a contract under the U.C.C. and a breach ofthe contract as a result of defendants'
failure to comply with the "obligation of good faith" imposed by Section 1203 by
intentionally delivering milk that it knew was not fit for human consumption. Those
allegations are sufficient to withstand a demurrer.
AND NOW, this
ORDER OF COURT
I (A day of JUNE, 2004, the Preliminary Objections of
Defendants' Cloverland Dairy Limited Partnership and Daniel Fox to Plaintiffs'
Amended Complaint are DENIED.
By the Court,
Isl Edward E. Guido
Edward E. Guido, J.
3 Section 1203 provides: "Every contract or duty within this title imposes an obligation of good faith in its
performance or enforcement" I3 Pa. C.s.A. ~ 1203.
4
>-
(..1;-
"','1"
.....
wQ
Q~-.~:':
~'
..:.....JUJ
O::::c
I-
~
r-
f';::
..,.
;3~
(.):'2['
"-'~~
J,.--'
:~?' >;
<:':~2~
;jl{u
;:nCl..
;~
~
(.)
:c
0._
-
:5
.,
-"'"
=
<=
.....
II
III'
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LAND O'LAKES, INC., and DAIRY )
MARKETING SERVICES, LLC, )
)
Plaintiffs )
)
v. )
)
CLOUSE TRUCKING, INC., )
CLOVERLAND DAIRY LIMITED )
PARTNERSHIP, a Maryland Limited )
Partnership, J. EDWARD CLOUSE and )
DANIEL FOX, )
)
Defundants )
No: 03-2782 Civil Term
PLAINTIFFS' ANSWER TO NEW MATTER OF DEFENDANTS
CLOVERLAND DAIRY LIMITED PARTNERSHIP AND DANIEL FOX
139. Plaintiffs incorporation paragraphs one through 138 of their Complaint.
140-148.
Denied as a conclusion of law to which no response is required.
149. Denied. By way of further answer, see the allegations of Plaintiffs' Complaint.
WHEREFORE, Plaintiffs respectfully request this Honorable Court enter judgment in their
favor and against the Defendants as more fully prayed for in their Amended Complaint.
Date:
i h/u'1
GROSS, McG 9EY, LaBARRE & EATON, LLP
/L-"
BY: -:
PAT. O~J. REILLY, ESQUIRE
Attorney :for Plaintiffs
33 South 7th Street, PO Box 4060
Allentown, PA 18105-4060
(610) 820-5450
J.D. #32235
W:\ WDOX\CLIENTS\lol\c1ouse\000670 12.DOC
Ii
II
Ii
III
I
,
VERIFICATION
I, Dennis Schad, hereby state and verify that I am the 1) (ete.~,I(, 6';;; /I hteti,...) of
/
Land O'Lakes, Inc., that I am authorized to make this Verification on behalf of said corporation, and
that the facts set forth in PLAINTIFFS' ANSWER TO NEW MATTER OF DEFENDANTS
CLOVERIAl\ID DAIRY LIMITED PARTNERSHIP AND DANIEL FOX are true and correct
based upon personal knowledge, information, and belief.
I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A.
Section 4904, relating to unsworn falsification to authorities.
:~ JjKES. me
Dennis Sch
/~-l
~
Date:
1J/Yloy
LOL v. Clouse Trucking
W ,I WDOXlCLIENTSllollclollseI00046190.DOC
II
II
II
~
CERTIFICATE OF SERVICE
This is to certify that PLAINTIFFS' ANSWER TO NEW MATTER OF DEFENDANTS
CLOVERLAND DAIRY LIMITED PARTNERSHIP AND DANIEL FOX, was mailed by first class
United States mail, postage prepaid, and this q--l+\ day of August, 2004, upon the following:
John A. Statler, Esquire
Goldberg, Katzman & Shipman, lP.C.
320 Market Street
PO Box 1268
Harrisburg, PA 17108-1268
Attorney for Clouse Trucking, Inc. and J. Edward Clouse
Scott T. Wyland, Esquire
Steven D. Snyder, Esquire
Hawke, McKeon, Sniscak & Kennard LLP
100 North Tenth Street
Harrisburg, P A 17101
Attorney for Cloverland Dairy Limited Partnership and Daniel Fox
DATE:
<{ hi.;,
::OSS'Mit2~& EATON,ILP
PATRICIa: REILLY, ESQUIRE
Attorney for Plaintiffs
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
(610) 820-5450
J.D. #32235
Land Q'Lakes v. Clouse Trucking
W:\ WDOX\CLIENTS\lo1\clouse\00041817 .DOC
-
C)
t:
.....,
C:,
~_2
()
~J'l
"")
~i:-
0,
Johnson. Duffie, Stewart & Weidner
By: John A. Statler, Esquire
I.D. No. 43812
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
jas@jdsw.com
Attomeys for Defendants
Clouse Trucking, Inc. and J. Edward Clouse
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LAND O'LAKES, INC. and
DAIRY MARKETING SERVICES, LLC
Plaintiffs
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE
and DANIEL FOX,
NO. 03-278:2 CIVIL TERM
JURY TRIAL DEMANDED
Defendants
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Kindly correct the record to reflect the new addness of John A. Statler, Esquire,
counsel for Defendants Clouse Trucking, Inc. and J. Edward Clouse as follows:
DATE: 10 1'-IloLj
236529
John A. Statler, Esquire
Johnson, Duffie, Stewart & Weidner
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
JO~JFFIE, STEWART & WEIDNER
By: ~ohnA'~
Attorney I.D. No. 43812
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Telephone (717) 761-4540
Attorneys for Defendants Daily Express, Inc.
and Harold Eugene Pryor
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
'-In..
Lemoyne, Pennsylvania, with first-class postage prepaid on the
below
day of
,2004, addressed to the following:
Patrick J. Reily, Esquire
Gross, McGinley, LaBarre & Eaton, LLP
33 South 7'h Street
P.O. Box 4060
Allentown, PA 18105-4060
Scott T. Wyland, Esquire
Steven D. Snyder, Esquire
Hawke, McKeon, Sniscak & Kennard, LLP
100 North Tenth Street
Harrisburg, PA 17101
JOH~JFFIE, STEWART & WEIDNER
BY:~ ~=+--
John A. Statler, Esquire
Attorney I.D. No. 43812
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Telephone (717) 761-4540
Attorneys for Defendant
'-,
....,
C':l
:E~
C')
C",
I
tJ1
-:1
Cl
".,~ 1
':1.1,",
r1:1 r;~:i
-nl:q
-~.i I.:~
~3~~\
<......,-1
t_) ;:.;:)
:;::_~I r~'1
.~
"-"JJ
:....:~
_.',-.""
C;,?
C-")
Johnson. Duffie, Stewart & Weidner
By: John A. Statler, Esquire
1.0. No. 43812
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
jas@jdsw.com
LAND O'LAKES, INC. and
DAIRY MARKETING SERVICES, LLC
Plaintiffs
v.
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE
and DANIEL FOX,
Defendants
Attorneys for Defendants
Clouse Trucking, Inc. and J. Edward Clouse
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 03-2782 CIVIL TERM
: JURY TRIAL DEMANDED
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please enter the appearance of C. Roy Weidner, Jr., Esquire as co-counsel for
Defendants Clouse Trucking, Inc. and J. Edward Clouse in the above-captioned action.
DATE:
236529
11 fl5"jtJ'f
JOHNSON, DUFFIE, STEWART & WEIDNER
By: ~~ _ -.-L
C. Roy Weidner, Jr.~squire
Attorney 1.0. No. 19530
John A. Statler, Esquire
Attorney I.D. No. 43812
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Telephone (717) 761-4540
Attorneys for Defendants
Clouse Trucking, Inc. and J. Edward Clouse
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
I :f t:L
day of
Lemoyne, Pennsylvania, with first-class postage prepaid on the
/JPdlt-lii fi)..y , 2004, addressed to the following:
Patrick J. Reily, Esquire
Gross, McGinley, LaBarre & Eaton, LLP
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
Scott T. Wyland, Esquire
Steven D. Snyder, Esquire
Hawke, McKeon, Sniscak & Kennard, LLP
100 North Tenth Street
Harrisburg, PA 17101
JOHNSON, DUFFIE, STEWART ~ER
~o . Statler, Esquire
t: - ~~torney 1.0. No. 43812
C. Roy Weidner, Esquire
Attorney I. D. No. 19530
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Telephone (717) 761-4540
Attorneys for Defendants
Clouse Trucking, Inc. and J. Edward Clouse
p
T"-.~~
c:"'l
\.. ":'~J
..,,"-
-,...
;..::3
d..":,,~
(;''',
---
..-"~
1 ~
o
c::;
......
.
(-)
-'(1
--1
. ,-
,. '''1
r n .,'"
,""
~-rl r~n
U~i~
,": ~;~
~~J ,ll
~ ,J .!
Johnson. Duffie, Stewart & Weidner
By: C, Roy Weidner, Jr.
1.0. No. 19530
301 Market Street
P Q. Box 109
L~moyne, Pennsylvania 17043-0109
(717) 761-4540
jas@jdsw.com
Attorneys for oefendantsd J Edward Clouse
Clouse Trucking, Inc. an '
LAND O'LAKES, INC. and
DAIRY MARKETING SERVICES, LLC
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland limited
Partnership, J. EDWARD CLOUSE
and DANIEL FOX,
NO. 03-2782 CIVIL TERM
JURY TRIAL DEMANDED
Defendants
CERTIFICATE PREREQUISITE TO SERVICE
OF SUBPOENA PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to Rule
4009.22, Defendant hereby certifies that:
1) A Notice of Intent to serve the subpoena, with a copy of the subpoena attached
thereto, was mailed or delivered to each party at least 20 days prior to the date
on which the subpoena was sought to be served;
2) A copy of the Notice of Intent, including the proposed subpoena, are attached to
this certificate;
3} No objection to the subpoena has been received; and
r.
t~
4) The subpoena to be served is identical to the subpoena attached to the NotiS of
Intent. /"... /-
By: //(./ /' ,,~
i,e. Roy Weidner, Jr.
Attorney 1.0. No. 19530
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
DATE', ,~~ /q /"...,~ Telephone (717) 761-4540
-' (' (L. J Attorneys for Defendants
I"t.__
Johnson. Duffie, Stewart & Weidner
By: C. Roy Weidner, Jr.
I.D. No. 19530
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
jas@jdsw.com
Attorneys for Defendants
Clouse Trucking, Inc. and J. Edward Clouse
LAND O'LAKES, INC. and
DAIRY MARKETING SERVICES, LLC
Plaintiffs
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE
and DANIEL FOX,
NO. 03-2782 CIVIL TERM
JURY TRIAL DEMANDED
Defendants
NOTICE OF INTENT TO SERVE SUBPOENA TO
PRODUCE DOCUMENTS AND THINGS FOR
DISCOVERY PURSUANT TO RULE 4009.21
TO: Land O'Lakes, Inc. and Dairy Marketing Services, LLC
c/o Patrick J. Reilly, Esquire
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
PLEASE TAKE NOTICE that Defendants intend to serve a subpoena identical to the
one attached to this notice. You have 20 days from the date listed below in which to file on
record and serve upon the undersigned an objection to the subpoena. If no objection is made,
the subpoena may be served,
JOHNSON, DUFFIE, STEWART & WEIDNER
-
DATE: '-/, l'i-OS
/~/
By: Lc.~oy Weidner, Jr.
Attorney I.D. No. 19530
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Telephone (717) 761-4540
Attorneys for Defendants
,
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
LAND O'LAKES, INC. and DAIRY
MARKETING SERVICES, LLC,
Plaintiffs
vs.
File No. 03-2782
CLOUSE TRUCKING, INC., CLOVERLAND
DAIRY LIMITED PARTNERSHIP, a Maryland
Limited Partnership, J. EDWARD CLOUSE and
DANIEL FOX,
Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Tuscan-Lehigh Dairies. 110 Manheim Road. Schuvlkill Haven. PA 17972
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents
or things:
All documents, records and samnles relating to the delivery and attempted delivery of milk to yon by Clouse
Trucking, Inc. on August 6, 2001, and your rejection of any such milk and the reasons thereof.
at C. Rov Weidner. Jr.. Johnson. Duffie. Stewart & Weidner. 301 Market Street. Lemovne. PA 17043
(Address)
You may deliver or mail legible copies of the documents or produce things requesting by this suhpoena, together with the
certificate of compliance, to the party making this request at the address listed ahove. You have the right to seek, in ad
vane, the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the
party serving this suhpoena may seek a court order compelling you to comply with it.
THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME:
C. Rov Weidner. Jr.. Johnson. Duffie. Stewart & Weidner. P.C.
ADDRESS:
30 I Market Street
Lemovne. PA 17403
TELEPHONE:
(717) 761-4540
SUPREME COURT ID # 19530
ATTORNEY FOR:
Defendants. Clouse Trucking. Inc. and
J. Edward Clouse
By the Court:
DATE:
Seal of the Court
Prothonotary
Deputy
,
CERTlFICA TE OF SERVICE
AND NOW, this lB......~ay of April, 2005, the undersigned does hereby certify that she
did this date serve a copy of the foregoing appearance upon the other parties of record by
causing same to be deposited in the United States Mail, first class postage prepaid, at
Lemoyne, Pennsylvania, addressed as follows:
Patrick J. Reily, Esquire
Gross, McGinley, LaBarre & Eaton, LLP
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
Scott T. Wyland, Esquire
Steven D. Snyder, Esquire
Hawke, McKeon, Sniscak & Kennard, LLP
100 North Tenth Street
Harrisburg, PA 17101
:248904
JOHNSON, DUFFIE, STEWART & WEIDNER
~
By:
abeth L. 21 r
,
CERTIFICA TE OF SERVICE
or/..
AND NOW, this ~ day of May, 2005, the undersigned does hereby certify that she
did this date serve a copy of the foregoing appearance upon the other parties of record by
causing same to be deposited in the United States Mail, first class postage prepaid, at
Lemoyne, Pennsylvania, addressed as follows:
Patrick J. Reily, Esquire
Gross, McGinley, LaBarre & Eaton, LLP
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
Scott T. Wyland, Esquire
Steven D. Snyder, Esquire
Hawke, McKeon, Sniscak & Kennard, LLP
100 North Tenth Street
Harrisburg, PA 17101
JOHNSON, DUFFIE, STEWART & WEIDNER
-;
By:
:248904
-"-
';;:; C)
C~) ~TI
'---"
.-1
.....-. :1:
1_1
CJ
r:..-.?
(J
,'J
-<
Johnson. Duffie, Stewart & Weidner
By: John A. Statler
J.D. No. 43812
301 Market Street
P O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
crw@jdsw.com
Attorneys for Defendants
Clouse Trucking, Inc. and J. Edward Clouse
LAND O'LAKES, INC. and
DAIRY MARKETING SERVICES, LLC,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY
PENNSYLVANIA
Plaintiffs
NO. 03-2782 CIVIL TERM
v.
CIVIL ACTION -LAW
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE and
DANIEL FOX,
JURY TRIAL DEMANDED
Defendants
PRAECIPE TO WITHDRA W APPEARANCE
AND NOW, this 2nd day of February, 2006, withdraw the appearance of the undersigned
as co-counsel on behalf of Defendants Clouse Trucking, Inc, and J. Edward Clouse in the above-
captioned action.
:OHN~ '''ClONCR
~ Roy Weidner, Jr.
:268259
CERTlFICA TE OF SERVICE
AND NOW, this 2nd day of February, 2006, the undersigned does hereby certify that she
did this date serve a copy of the foregoing document upon the other parties of record by causing
same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne,
Pennsylvania, addressed as follows:
Patrick J. Reily, Esquire
Gross, McGinley, LaBarre & Eaton, LLP
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
Scott T. Wyland, Esquire
Steven D. Snyder, Esquire
Hawke, McKeon, Sniscak & Kennard, LLP
100 North Tenth Street
Harrisburg, PA 17101
JOHNSON, DUFFIE, STEWART & WEIDNER
By: 7?~~/4' 011 x/;/2//}C2LU
ichelle H. Spangler ,/
:268259
2
o
~;-;
.....,
~3
C"
-.-,
r'-'
v:J
,
0)
--0
_..!'
-
-~:-
6:1
-;'
L, .
o
'-11
._1
-:c....,..,
\,lf~.
~~\r~~i
-\~ ..~-';
';~\~l~
';-~,'",
,':."
.,.....
....,
-
0'1
.r:'"
-
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LAND O'LAKES, INC., and DAIRY
MARKETING SERVICES, LLC,
Plaintiffs
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No: 03-2782 Civil Term
v.
Jury Trial Demanded
CLOUSE TRUCKING, INC.,
CLOVERLAND DAIRY LIMITED
PARTNERSHIP, a Maryland Limited
Partnership, J. EDWARD CLOUSE and
DANIEL FOX,
Defendants
PRAECIPE AND POWER OF ATTORNEY
FOR SATISFACTION AND/OR TERMINATION
TO: CLERK OF COURTS - CIVIL DIVISION
You are hereby authorized, empowered, and directed to enter, as indicated, the following on the
records thereof:
The within suit is Settled, Discontinued, Ended with costs paid.
X The within suit is Settled, Discontinued, Ended WITH Prejudice and costs paid.
The within suit is Settled, Discontinued, Ended WITHOUT Prejudice and costs paid.
Satisfaction ofthe Award in the within suit is acknowledged.
Satisfaction of Judgment, with interest and costs, in the within matter is acknowledged.
Other:
Dated: November 14,2006
COST PAYMENT VERIFICATION
I UNDERSTAND THAT THE ABOVE ACTION CANNOT BE FILED AND D TED UNTIL ALL COSTS HAVE BEEN
PAID INCLUDING SHERIFF'S COSTS' AND HEREBY VERIFY T T 1\LL COSTS HAVE BEEN PAID. I
UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE S BJ T TO THE PENALTIES OF 18 PA. C.S. I
4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES
W:\ WDOX\CLlENTS\lol\clouse\OO 149345 .DOC
()
c
f7"
l'
r-.)
=-,
c:.:>
CJ'"
o
-n
~
rn "Tl
..
-om
~UCJ
. - - \ ~
,~~~ ~.~
~)m
,--!
:ij
-<
-
o
-::
0'\
~
1)?
en
c:;.