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4. Lehigh at all times pertinent to this Complaint WllS in the business of, among other
things, purchasing milk from dairy fanners and processing it or reselling it for processing.
Lehigh owned snd operated fluid milk processing plsnts at several locations including a plsnt at
880 Allentown Road, Lansdale, PA,
The Milk Haulinll Business
S. Raw milk is produced daily on dairy farms. Because it is highly perishable, raw
milk must be marketed within approximately 48 hours of production. To market their milk
production, dairy farmers enter into milk sales or marketing contracts (which may be written or
oral) with milk pror.essora or marketing cooperatives. The milk rnarketcr or purchaser then
arranges for the pickup of the farmer's milk by a milk hauler. The milk hauler is customarily paid
for his service by the milk marketer or purchaser who, in turn, charges the dairy farmer an agreed
charge for the milk hauling service.
6. The charges for hauling milk are negotiated rates the milk hauler and the milk
marketer or purchaser. The charges are generally made on a per hundredweight of milk basis
and frequently vary with the distance which milk is hauled. Hauling charges may also vary on
the basis of other factors including volume. Rates may also be influenced by federal or state
regulations of milk marketing transactions. In addition to per hundredweight charges, other
charges are sometimes negotiated including a charge for excess "waiting time," which is down
time when milk trucks are required to wait extended periods of time at the plant of destination
before unloading.
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7. Payment for milk hauling services is generally made on a monthly basis in two
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installments. An initial payment, estimated to be about one-haIf of the anticipated billing for the
month is made about the first of the following month. A final payment for the remainder of the
balance due for the month is made by about the twentieth day of the following month.
Clouse - Lehillh Al!I'eements
8. Clouse has been contracted by Lehigh or its predecessors in interest since prior to
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1990 to pick up the raw milk on sorne 200 dairy farms located throughout Central and Eastern
Pennsylvania which farms were under contraet to Lehigh or its predecessors and to deliver such
raw milk daily to plants at the direction of Lehigh or its predecessors. Clouse's agreement with
Lehigh provided for an agreed upon payment per hundredweight according to the plant of
destination and for payment to Clouse of waiting charges for time in excess of two hours waiting
to unload at destination plants.
9. On a daily basis during the period from January I, 1995 through March I, 1998,
Clouse picked up milk, as often as directed by Lehigh, usually every other day, from the 200
dairy farms under contract to Lehigh and delivered these milk volumes to plants as directed by
Lehigh.
10. Clouse's negotiated hauling rates with Lehigh varied according to the plant to
which the milk was delivered and, in some instances, the location of the farms from which the
milk was picked up.
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11. Clouse was paid monthly by Lehigh for milk transport services. Once hauling
rates were estllblished, Clouse did not invoice Lehigh monthly for basic milk hauling services.
Monthly bills were sent for supplemental services such as charges for extra waiting time.
12. The rates which Clouse and Lehigh agreed to for delivery of milk to various plant
locations during the period from January 1, 1995 through February 28, 1998 were as follows for
the indicated plant location.
PLANT OF DELIVERY
CHARGE PER CWT
SO.803
SO.9oo
SO.925
SO.880
SO.803
SO.721
SO.803
SO.803
SO.694
S1.150
S1.120
S1.810
SO.763
S1.120
SO.925
SO.803
Beatrice Cheese, Allentown
Breyers, Philadelphia
Cumberland Farms, Florence, NJ
Dairymaid, Baltimore
Deitrichs, Reading
LVD, Ft. Washington
Greenspring Dairy, Baltimore, MD
Hershey Foods, Hershey
Holly Milk, Mt. Holly Springs
Kernp Foods, York
Leprino Foods, Waverly, NY
Readington Farms, NJ
LVD, Schuylkill Haven
Tuscan Dairies, Union Nl
Weis Markets, Sunbury
Welsh Farms, Nl
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13. Thc ratcs at which Lehigh paid Clouse for delivcry of milk to thc previously
indicated plants ofdclivcry during the pcriod from January 1,1995 through February 28,1998
werc as follows:
PLANT OF DELIVERY
PAYMENT PER HUNDRED WEIGHT
Beatrice Cheese, Allcntown $.65
Beyers, Philadelphia $.65
Cumberland Farms, Florence, Nl $.65
Dairymaid, Baltimorc MD $.65
Deitrichs, Reading $.65
LVD, Ft. Washington $.65
Grcenspring Dairy, Baltimorc, MD $.65
Hershey Foods, Hcrshey $.65
Holly Milk, Mt. Holly Springs $.65
Kemp Foods, York $.65
Leprino Foods, Waverly, NY $.65
Readington Farms, Nl $.65
LVD, Schuylkill Havcn $.65
Tuscan Dairics, Union Nl $.65
Weis Markets, Sunbury $.65
Welsh Farms, Nl $.65
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14. The aggregate volumes of milk which Clouse delivered for Lehigh to the various
plants during the period from January I, 1995 through February 28, 1998 are:
PLANT OF DELIVERY
VOLUME (Lb..)
Beatrice Cheese, Allentown 5,501,693
Breyers, Philadelphia 243,306
Cumberland Farms, Florence, NJ 288,516
Dairymaid, Baltimore MD 831,536
Deitrichs, Reading 2,997,098
LVD, Ft. Washington 17,304,939
Greenspring Dairy, Baltimore, MD 280,504
Hershey Foods, Hershey 962,070
HoUy Milk, Mt. HoUy Springs 18,175,864
Kemp Foods, York 288,813
Leprino Foods, Waverly, NY 25,426
Readington Farms, Nl 99,782
LVD, SchuylkiUHaven 307,856
Tuscan Dairies, Union NJ 4 ,548,868
Weis Markets, Sunbury 49,985
Welsh Fanns, Nl 668,745
15. The amounts by which Clouse was underpaid for deliveries to the indicated plants
during the period at issue are:
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17. The agreed charge between Clouse and Lehigh for waiting time per hour was
SI5.oo. During the period involved, Clouse regularly billed Lehigh for waiting time. In some
cases those biDs were not paid and remain outstanding as follows:
MONTH AMOUNT UNPAID
January 1997 $ 2.137.50
February 1997 $ 2,958.75
March 1997 $ 1,233.75
April 1997 $ 1,050.00
May 1997 $ 0.00
June 1997 $1,147.75
July 1997 $2,716.75
August 1997 $ 3,176.25
September 1997 $ 2,996.25
October 1997 $ 2,583.75
November 1997 $2,100.00
Decernber 1997 $1,786.00
January 1998 $ 337.50
February 1998 $ 867.50
Count I Breach of Contract
18. Paragraphs I to 16 above are hereby incorporated herein.
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19. Lehigh has underpaid Clouse for milk hauling services during the period of
January I, 1995 to February 28, 1998, in the total sum ofS 131,283.41. Demand for payment of
this sum has been duly made by Clouse and refused by Lehigh.
20. Lehigh has failed to pay Clouse for milk hauling waiting charges during the period
of January I, 1995 to February 28, 1998, in the total sum of $ 24,892. 7S Clouse has duly
demanded payment of the foregoing surns from Lehigh and such payment has bccn refused.
21. Clouse is entitled to interest on all payments not made from the date such
payments were due until the date of payment.
WHEREFORE, Clouse demands judgment against Defendant for $ 156,176.16 together
with interest and costs of suit.
Respectfully submitted,
MlLSPAW & BESHORE
~~,-
n Beshore, EsqUire
Pa, 1.0. No. 31979
130 State Street
P.O. Box 946
Hanisburg, P A 171 08-0946
(717) 236-0781
F:IDOCSICIouoo~
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to.
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YERIFICA TION
I verifY that the statements made in the foregoing Complaint are true and correct to the best
of my knowledge, information, and belief. I understand that false statements herein are made subject
to the penalties of 18 Pa.C.S. ~4904, relating to unsworn falsification to authorities.
Date: '1"J /91
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~J. Edward Clouse
InThe Court of Common Pleas of Cumberland County, Pennsylvania
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Clouse Trucking, Inc.
VS.
2e;~~I(;YrL~aJRJ~s, Inc.
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No. 99-2448 Civil
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Now, 4/26/99
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J 9_, I SHERIFF OF CUMBERLAND COUNTY, I'A do hereby deputize the SheriO'of
County to execute Ihis Writ, this deputation heing made at the request nnd risk of the Plainliff.
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Affidavit of Sel'Vice
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CML ACTION
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Plaintiff
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) No: 99-2448 Civil Term
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CLOUSE TRUCKING INC.
v.
LEHIGH VALLEY DAIRIES, INC.,
Defendant
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YOU ARE HEREBY NOTIFlED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED
NEW MATI'ER WITHIN TWENTY (20) DAYS FROM THE SERVICE HEREOF OR A
JUDGMENT MAY BE ENTERED AGAINST YOU. THE SAME IS HEREBY CERTIF1ED TO BE
A TRUE AND CO!1RECTCOPY OF THE ORlGlNAL ONA
PATffiC~g~UffiE
ATTORNEY FOR Defendant
!.D. # 32235
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4. Adrnitted.
5. Adrnitted.
6. The allegations of paragraph 6 as a general statement regarding the rnilk
producing, milk hauling and rnilk marketing industries are correct. As to the parties to
the within action and the time frame pertinent to the within cause of action, the Defendant
denies that it ever agreed to pay to the Plaintiff any charge for excess ''waiting time", or
that the rates to be paid to the Plaintiff as a hauling charge varied as will be more fully
detailed hereinafter.
7. Admitted.
8. Denied as stated. It is admitted that since prior to 1990 Clouse agreed with
Lehigh to pick up the raw rnilk on sorne 200 dairy farrns located throughout central and
eastern Pennsylvania which farms were under contract to Lehigh or its predecessors and
to deliver such raw milk daily to plants at the direction of Lehigh. It is also admitted that
for a small percentage of the milk producers under Federal Order 2 from whorn Clouse
picked up raw milk, Lehigh agreed to pay Clouse a negotiated rate per hundredweight
of milk above the standard Federal Order 4 rate. It is denied that Clouse's agreement
with Lehigh provided for an agreernent upon payment per hundredweight of rnilk
according to the plant of destination and for payment to Clouse for waiting charges for
time in excess of two hours waiting to unload at destination plants. At no tirne did Lehigh
ever agree to pay Clouse waiting charges of any kind. Furtherrnore, at all times relevant
to the within cause of action, Lehigh agreed to pay Clouse 65\t per hundredweight of milk
plus a "stop charge" of $3 for all milk producers subject to Federal Order 4.
2
9. Adrnitted.
10. Denied. See Lehigh's answer to paragraph 8 above.
II. Admitted in part, denied in part. It is admitted that Clouse was paid monthly
by Lehigh for transport services and that Clouse did not invoice Lehigh monthly for basic
milk hauling services. It is further adrnitted that rnonthly bills were sent for supplemental
services such as charges for extra waiting tirne, but it is denied that the Defendant ever
agreed to pay Plaintiff any sum for extra waiting time.
12. Denied. By way offurther answer, see Defendant's answer to paragraph 10.
13. Adrnitted. By way of further answer, Lehigh also paid Clouse a $3 "stop
charge."
14. Denied. Defendant is without knowledge or information sufficient to forrn
a belief as to the truth of the averments contained in paragraph 14.
15. Denied. Defendant is without knowledge or information sufficient to forrn
a belief as to the truth of the averments contained in paragraph 15. By way of further
answer, Lehigh has paid to Clouse all sums due and owing to it for delivery charges.
16. Denied. Defendant is without knowledge or information sufficient to form
a belief as to the truth of the averments contained in paragraph 16.
17. Denied. At no time did Lehigh agree to pay Clouse any sums for waiting
time.
COUNT I . BREACH OF CONTRACT
18. Defendant incorporates its answers to paragraphs one through 17 above.
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19. Denied as a conclusion of law to which no response is required. By way of
further answer, Lehigh has paid to Clouse all surns due and owing to it.
20. It is adrnitted that Lehigh has failed to pay Clouse any wailing charges. It
is denied that such waiting charges are due.
21. Denied as a conclusion of law to which no response is required.
WHEREFORE, Lehigh respectfully requests this Honorable Court enter judgment
in its favor and against the Plaintiff.
N.E.W..MADIR
22. Prior to January, 1995, Lehigh had agreed to Pay to Clouse for the delivery
of milk to various plant locations various rates depending upon, inter alia, the location of
the plant and the volume of milk transported.
23. On and after January I. 1995, the parties agreed upon a negotiated rate of
651t per hundredweight for all plants of delivery detailed in paragraph 12 of Plaintiffs
Complaint. Additionally, Lehigh agreed to pay Clouse a $3 "stop charge."
24. Lehigh has paid to Clouse all sums due to it on account of the delivery of
milk to the plant locations and during the time period set forth in paragraph 12 of
Plaintiffs Complaint and all stop charges.
25. On numerous occasions after January I. 1995 Lehigh advised Clouse that
it would not pay Clouse for any waiting time.
26. Lehigh provided to Clouse on a monthly basis a statement of the arnount of
milk delivered by Clouse, the plants of delivery, the cost per hundredweight, and all stop
charges due and owing to the Plaintiff.
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This is to certify that the foregoing ANSWER AND NEW MATIER, was mailed by
first class United States mail, postage prepaid, thisl 0 '-IiI day of c:;;, 1 (") <? . 1999,
upon the following;
Marvin Beshore, Esquire
Milspaw & Beshore
130 State Street
PO Box 946
Harrisburg, PA 17108-0946
DATE:
d(~/~7
BY:
PA: . E y, ESQUIRE
Attorney for Defendant
33 South 7th Street
P.O. Box 4060
Allentown, PA 18105-4060
(610) 820-5450
I.D. # 32235
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA
CIVIL ACTION
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Plaintiff
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) No: 99-2448 Civil Terrn
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CLOUSE TRUCKING INC.
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LEHIGH VALLEY DAIRIES. INC..
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Delendant
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eRAECIPE TO SUBstiTUTE VERIFICATlnH
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TO THE CLERK OF THE SAID COURTS:
Kindly substitute the attached Verification to be liIed with the Answer and New Matter
in the above-captioned matter. The Answer and New Matter was filed with the Court on
June II. 1999.
E & EATON. LLP
DATE:
'({(..(fj
BY:
PA CK).R LI.: . ESQUIRE
Attorney lor Delendant
33 South 7th Street
P.O. Box 4060
Allentown. PA 18105-4060
(610) 820.5450
I.D. # 32235
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CLOUSE TRUCKING INC.
Plaintiff
v.
No. 99-2448
LEHIGH VALLEY DAIRIES, INC.
Defendant
CIVIL ACTION - LAW
REPLY TO NEW MATTER
Plaintiff, Clouse Trucking Inc., by its attorneys, Milspaw & Beshore, hereby replies to the
New Matter of Defendant as follows:
22. Admitted in part and denied in part. It is admitted that prior to January 1995,
Lehigh had agreed to pay to Clouse for the delivery of rnilk to various plant locations varoius
rates depending upon the location ofthe plant to which delivered. It is denied that the rate of
payment agreed to varied with the volurne ofrnilk transported.
23. Denied.
24. Denied.
25. Denied.
26. Denied as stated. It is adrnitted that Lehigh provided to Clouse on a monthly bais
a staternent of the amount of milk delivered by Clouse, and the payments being rnade per
hundredweight by Lehigh. It is denied that the statement for delivery of milk regulated by federal
order 4 provided to Clouse on a monthly basis by Lehigh showed the plants of delivery or full
amounts ofrnoney due and owing by Lehigh to Plaintiff.
27. Dcnicd as a legal conclusion to which no rcsponse is requircd.
28. Denied as a legal conclusion to which no response is rcquired.
29. Denied as a legal conclusion to which no response is requircd.
30. Denied as a legal conclusion to which no response is rcquircd.
WHEREFORE, Clouse Trucking Inc. respectfully requests this Honorable Court to enter
judgment in its favor and against Defendant.
Respcctfully subrnitted,
MILSPA W & BESHORE
, /
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Dated: June 25, 1999
in esh re, Esquire
Pa, I. . No. 31979
130 State Street
P.O. Box 946
Harrisburg, P A 171 08-0946
(717) 236-0781
VERIFICATION
I verify that the statements made in the foregoing Reply to New Matter are true and correct
to the best of my knowledge, information, and belief. I understand that false statements herein are
made subject to the penalties of 18 Pa.C.S. ~4904, relating to unsworn falsification to authorities.
Date: lune 25, 1999
(;tJ~~f?A~
~ 1. Edward Clouse