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Home My WebLink About07-2149ROBERT D. KODAK, ESQUIRE KODAK & IMBLUM, P.C. 407 N FRONT STREET, PO BOX 11848 HARRISBURG, PA 17108-1848 (717) 238-7152 Attorney for Plaintiff CLAYTON MARCUS COMPANY, INC., A IN THE COURT OF COMMON PLEAS LA-Z-BOY INCORPORATED COMPANY CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA v NO. 67 -.21q? ?tu14 DONALD L. SPITLER individually and trading as SOFA SELECTIONS CIVIL ACTION - LAW Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. 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 ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION TWO LIBERTY AVENUE CARLISLE PA 17013 (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparencencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION TWO LIBERTY AVENUE CARLISLE PA 17013 (717) 249-3166 CLAYTON MARCUS COMPANY, INC., A LA-Z-BOY INCORPORATED COMPANY Plaintiff v DONALD L. SPITLER individually and trading as SOFA SELECTIONS Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. C7- ?21q q /stivj CIA, CIVIL ACTION - LAW COMPLAINT The Plaintiff, CLAYTON MARCUS COMPANY, INC., A LA-Z-BOY INCORPORATED COMPANY, by its attorneys, KODAK & IMBLUM, P.C., brings this action of Assumpsit against the Defendants to recover the sum of SEVEN THOUSAND ONE HUNDRED SIX DOLLARS AND THIRTY-NINE CENTS ($7,106.39), along with interest thereon at the statutory rate from September 29, 2006, upon a cause of action of which the following is a statement: 1. The Plaintiff, CLAYTON MARCUS COMPANY, INC., A LA-Z-BOY INCORPORATED COMPANY, is a corporation organized and existing under the laws of the State of North Carolina, having its principal office and place of business at 4620 Grandover Parkway, Greensboro, North Carolina 27417. 2. The Defendant, DONALD L. SPITLER, individually and trading as SOFA SELECTIONS, is an adult individual with an address of 6435 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050. F:\USER\ROBIN\CCP&D] CMPS\CCP COMPLAINTS\LAZBOY 33132.wpd 2 3. On or about November 10, 1999, Defendant submitted a New Account Application to Plaintiff whereby Plaintiff would provide good, wares and merchandise to Defendant on credit. A true and correct copy of said New Account Application is attached hereto, marked Exhibit "A" and made a part hereof. 4. Thereafter, on various dates and for various amounts as set forth on Plaintiff's Statement of Account attached hereto, marked Exhibit "B" and made a part hereof, Plaintiff, at the special instance and request of the Defendants, sold and delivered goods, wares and merchandise of the kind and description set forth on said Exhibit to the total amount of Seven Thousand One Hundred Six Dollars and Thirty-Nine Cents ($7,106.39). 5. The prices charged for said goods, wares and merchandise were just and reasonable, were the legal and market prices therefor and were the prices which the Defendant orally promised and agreed to pay to Plaintiff. 6. The balance due and owing by Defendants to Plaintiff is the sum of Seven Thousand One Hundred Six Dollars and Thirty-Nine Cents ($7,106.39), as appears by Plaintiff's Affidavit of Claim attached hereto, marked as Exhibit "C" and made a part hereof. 7. Plaintiff's Invoices are not attached to this pleading due to the voluminous nature of same and have previously been provided to Defendants. F:\USER\ROBIN\CCP&DJ CMPS\CCP COMPLAINTS\LAZBOY 33132.wpd 3 8. Plaintiff frequently demanded payment from Defendants of said amount due and owing as aforesaid, but Defendants refused and neglected and still refuse and neglect to pay said amount or any part thereof. WHEREFORE, Plaintiff brings this suit to recover from Defendants the sum of SEVEN THOUSAND ONE HUNDRED SIX DOLLARS AND THIRTY-NINE CENTS ($7,106.39), along with interest thereon at the statutory rate from September 29, 2006. Respectfully submitted, KODAK & IMBLUM, P.C. Robert D. Kodak, Esquire 407 North Front Street Post Office Box #11848 Harrisburg, PA 17108-1848 (717) 238-7151 Attorney ID No. 18041 Attorney for Plaintiff F:\USER\ROBIN\CCP&DJ CMPS\CCP COMPLAINTS\LAZBOY 33132.wpd 4 Check One: Lea American Drew Pilliod NEW ACCOUNT APPLICATION LADD FURNITURE COMPANIES Clayton-Marcus Barclay Pennsylvania House NO V DATE l \0 SALESMAN FIRM NAME J c O-3 S REP NO. TRADING AS TERR NO. BILLING ADDRESS: BOX/STREET CITY MOCIiNO S?UK (.:' _ STATE ZIP bs PERMANENT SHIPPING ADDRESS: y ?? STREET CQLUyy\ V S CITY L)'Yy10W)JEF COUNTYCJ.X''IkS. LW?(_3 STATE l ZIP I?G TELEPHONE (A ) 1 1 - 16 1 FAX NO. (11-1) STATE SALES TAX EXEMPTION NO. _ CU S',, - b Full name of owners, partners, or authorized officers of corporation or limited liability company. List home address, ZIP code and Social Security numbers for partnership or individual. Name Position I?txl3k? L . SDI IQ r ?? t? r c(n'?7 Street Stat i Social Security # r r`? -7 11 1 Please (X) One: ® Sole Proprietorship (List Owner Above) ® Partnership (List Partners Above) ® Corporation (List Officers Above) ® Limited Liability Company (List Managers Above) Year Business Organized taCSG State of Organization Do You Prepare Monthly or Quarterly Financial Statements? Credit Line Requested (dollars) rt - 4 1 0 c) N C' If yes, please attach a copy. _ Approximate Dollar Value of Opening Orders tv, 5C) Name 1_PI V C_ Address/Branch ?L 11041"N" S? Bank Officer Bank References Type of Account & Account # City/State JIAE ? J <) ?. Telephone Number ame #1 #2 #3 Street Address ?- City/State Telephone Number - t TERMSOFCREDI ... . The Applicant and the undersigned officers and/or owners represents that the information contained In this application is-true"and accus e'. 'T he•terrns,:of-this.credit application shall apply to any credit extended by LADD Furniture, Inc, and any of its subsidlaries, divisions and affiliates existing now or In the future, including any successors (collectively, "LADD"). Permission is granted for LADD and its agents to make such inquiries from sources they deem appropriate regarding the Applicant's creditworthiness, Including but not limited to those references identified In this application. Credit policies and terms may be changed from time to time and all orders are subject to acceptance by LADD Financial Services, all at LADD's absolute discretion. Applicant will give advance notice to LADD of any change in the business structure. Without such notice, the original Applicant shall remain responsible for the account. Notice is to be given by certified mail, return receipt requested, to LADD's corporate headquarters. A service charge of 1 Y2% per month will be charged on all amounts not paid according to terms. If LADD places any past due obligation with an attorney for collection, the Applicant shall reimburse LADD for its reasonable attorney's fees and other expenses of collection. ODOM, I r 49 rinclpal's Signature (Responsibl for Operations) rif me & Title (Please Print p ate Principal's Signature (Responsible for Operations) dame & t itie (Please Print) Date STATEMENT OF ACCOUNT CLqton Maim A La-Z-Boy Incorporated company r L SOFA SELECTIONS 5430 JONESTOWN RD HARRISBURG PA 17112 4009 REMIT TO: CLAYTON MARCUS 22815 NETWORK PLACE CHICAGO IL 60673 !I -? ACCOUNT NO. DATE SALESMAN 58105200 9/28/06 013 KIRK FIREST CREDIT MGR : DAVE CARPENTER TEL NO. : 336 315 4224 FAX NO. : 336 323 4224 E-MAIL : dave.carpenterala-z-boy.c J D TRANS. DATE DUE DATE PAST DUE PAST DUE PAST DUE N0. DAY YR. SERIES INVOICE NO 1DAY { YR CURRENT 1.30 DAYS 31-60 DAYS BOt DAYS CREDITS E R 2 06 0856222 3 30 6 29.47 N 21 06 0857693 4 21 6 48.60 N 2 06 0858855 4 28 6 71.75 R 1 06 0863470 6 14 6 4320.85 R 1 06 0866041 7 '13 6 762.68 R I f 0 ! ? f i 06 0870727 9 ! 07 i 6 1873.04 --- A F.yd.nt (AdvWWA) J Journal Entry E Rorwico chores 11 1 5 liod) t I i U Fa nt (Una edit N N " l 1873.04 1 5233,3 , aeeaan nvo ce yn t Cr o" P yF D Disputed It.. N Dispute Nom ?ayabl• N Nr.h.usd Inv.ic. CURRENT PAST DUE PAST DUE PAST DUE CREDITS E Unearned Discount a Fayaant (On Account) Z Deduction F Freight Invoice F Payment partial I tayaant (Inventory) R Regular Invoice TOTAL I 7,106.39 CSTMCU 6/95 Office Copy AFFIDAVIT OF CLAIM STATE OF NORTH CAROLINA ) COUNTY OF GUILFORD ) I, DONNA MILLER REGIONAL CREDIT MANAGER - I (Name & Title) of CLAYTON-MARCUS COMPANY INC a 6 Corporation ? Partnership ? Proprietorship ? LLC, located at 4620 GRANDOVER PARKWAY, GREENSBORO NC 27417 on oath state(s) there is now due to CLAYTON-MARCUS COMPANY, INC from SOFA SELECTIONS HARRISBURG PA - the sum of SEVEN-THOUSAND-ONE-HUNDRED-SIX DOLLARS AND THIRTY-NINE CENTS (S 7106.39 ) and that no part thereof has been paid or satisfied and there are no known set-offs or counterclaims. i a_ Toax__ before 0r? SUBSCRIBED AND SWORN to ?,h Signature me this a4 _day of ? G , ?,. oFFICIAL SEAL n CAN P. DAIM oavktson County, WC (N ary Public) j rnnmissbe ExpkGs octom 23. -000 VERIFICATION I, ROBERT D. KODAK, state that I am not a party to the action but that, at the request of the Plaintiff, CLAYTON MARCUS COMPANY, INC., A LA-Z-BOY INCORPORATED COMPANY, and based upon knowledge, information, records and documents supplied to me by the Plaintiff, the averments set forth in Plaintiffs Complaint are true. A Verification executed by the Plaintiff can be supplied at time of trial or upon request. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Robert D. Kodak Dated: l6 s r r? v 0 C? N .1 c? .7 CJ`ti S ? ?i -`1 )L-_y -1 Lon F:T1LES\Genera1XCurrent\1 2575\12575. I.pra Christopher E. Rice, Esquire I.D. Number 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CLAYTON MARCUS COMPANY, INC., : IN THE COURT OF COMMON PLEAS OF a LA-Z- BOY INCORPORATED : CUMBERLAND COUNTY, PENNSYLVANIA COMPANY, Plaintiff NO. 07-2149 CIVIL TERM V. DONALD L. SPITLER, individually and : CIVIL ACTION - LAW trading as SOFA SELECTIONS, Defendant PRAECIPE TO THE PROTHONOTARY: Please enter the appearance of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER for the Defendant in the above-referenced matter. MARTSON LAW OFFICES By Christopher E. Rice, Esquire Attorney I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Date:( , _/G t. 6 / _2(3 07 M' CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Robert D. Kodak, Esquire KODAK & IMBLUM, P.C. 407 North Front Street P.O. Box 11848 Harrisburg, PA 17108-1848 MARTSON LAW OFFICES By / all M. Price Te East High Street Carlisle, PA 17013 (717) 243-3341 Dated: 6-1? P ?`' '°' ? o ? ,' ?_-° _ ? ?, ,4,r ?? ? ? , ? : ~, , -? f ?; ??? --' ? ? y-1 1% CASE NO: 2007-02149 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CLAYTON MARCUS COMPANY INC VS SPITLER DONALD L ET AL JESSICA HERMANSEN Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SPITLER DONALD L the DEFENDANT , at 1906:00 HOURS, on the 20th day of April 2007 at 6435 CARLISLE PIKE MECHANICSBURG, PA 17050 DONALD SPITLER by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 9.60 Postage .39 Surcharge 10.00 .00 " 4a 3'oh C? x/37.99 Sworn and Subscibed to before me this of day So Answers: 04 ?o, ??`.c:p.?':???-J' sa c=?-??.?-?° R. Thomas Kline 04/23/2007 KOADK & IMBLUM By. 6- Det Sherif A.D. CASE NO: 2007-02149 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CLAYTON MARCUS COMPANY INC VS SPITLER DONALD L ET AL JESSICA HERMANSEN , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SPITLER DONALD L T/A SOFA SELECTIONS the DEFENDANT at 1906:00 HOURS, on the 20th day of April , 2007 at 6435 CARLISLE PIKE MECHANICSBURG, PA 17050 by handing to DONALD SPITLER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 ?/Z 16.00 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 04/23/2007 KOAKD & IMBLUM By. All 1?m 11 " U Dep t Sheriff A.D. F: \FRES\ 12575\12575.Law Christopher E. Rice, Esquire I.D. Number 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CLAYTON MARCUS COMPANY, INC., : IN THE COURT OF COMMON PLEAS OF a LA-Z- BOY INCORPORATED : CUMBERLAND COUNTY, PENNSYLVANIA COMPANY, . Plaintiff NO. 07-2149 CIVIL TERM V. DONALD L. SPITLER, individually and : CIVIL ACTION - LAW trading as SOFA SELECTIONS, Defendant ANSWER WITH NEW MATTER AND COUNTERCLAIM TO: CLAYTON MARCUS COMPANY, INC. A LA-Z-BOY INCORPORATED COMPANY, Plaintiff, and its attorney, ROBERT D. KODAK, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and the same is therefore denied. Strict proof is demanded at trial. 2. Admitted in part and denied in part. It is admitted that Donald L. Spitler is an individual. However, it is denied that Donald L. Spitler trades as Sofa Selections with an address of 6435 Carlisle Pike, Mechanicsburg, Pennsylvania. 3. Denied. The document speaks for itself. By way of further response, Defendant Donald L. Spitler, individually, or trading as Sofa Selections, did not execute the attached document. In fact, the signature is not Donald L. Spitler's 4. Denied. The document speaks for itself. 5. Denied. Defendant made no oral promises to pay for the goods. 6. Denied. The document speaks for itself. Further it is denied that any balance is due and owing by Defendant to Plaintiff. 7. Denied. Defendant requests that all invoices be provided immediately so he can review the same. By way of further response, denied as the invoices speak for themselves. 8. Admitted in part and denied in part. It is denied that Plaintiff frequently demanded payment from Defendant. It is admitted that Defendant refuses to pay any amounts owed to Plaintiff. WHEREFORE, Defendant requests that Plaintiff s Complaint be dismissed with prejudice and that Defendant is awarded costs of suit and interest. NEW MATTER 9. Paragraphs 1-8 are incorporated herein by reference. 10. Defendant never signed a personal guarantee. 11. Kirk Firestorm was a personal representative of Plaintiff at all relevant times. 12. Before the engagement between Plaintiff and Defendant began, Plaintiff sent Firestone to Defendant to establish an account. 13. Firestone requested that Defendant execute a personal guarantee to guarantee the performance of Sofa Selections. 14. Defendant informed Firestone that if a personal guarantee would be required, then Defendant would not do business with Plaintiff. 15. As a result, Firestone informed Defendant that a guarantee would not be needed. 16. Thereafter, Firestone misled Defendant's daughter into signing a personal guarantee on behalf of Defendant by representing that the personal guarantee was simply a document needed to open a new account with Plaintiff. 17. Both Defendant and Defendant's daughter relied on the representations made by Firestone to Defendant's detriment. 18. Defendant's daughter signed her father's name on the personal guarantee not knowing she was signing a personal guarantee and as instructed by Firestone. • 19. Defendant's daughter had no authority to sign on behalf of her father or bind Sofa Selections. 20. Defendant does not do business as Sofa Selections 21. D.L. Spitler Lumber Company, Inc., does business as Sofa Selections and has done business as Sofa Selections at all relevant times. WHEREFORE, Defendant requests that Plaintiffs Complaint be dismissed with prejudice and that Defendant is awarded costs of suit, interest, attorney fees, punitive damages, and any other relief this Court deems appropriate. COUNTERCLAIM COUNT I - Misrepresentation 22. Paragraphs 1-21 are incorporated herein by reference. 23. Plaintiff, by and through its representative, misrepresented to Defendant and Defendant's daughter about the personal guarantee, which resulted in this lawsuit and damage to Defendant. 24. Plaintiffhas misrepresented the amount owed by Sofa Selections by overbilling Sofa Selections for parts and freight. WHEREFORE, Defendant requests that Plaintiff s Complaint be dismissed with prejudice and that Defendant is awarded costs of suit, interest, attorney fees, punitive damages, and any other relief this Court deems appropriate. COUNT II - Breach of Contract 25. Paragraphs 1-24 are incorporated herein by reference. 26. Plaintiff has failed to honor its warranties under furniture sold to Sofa Selections causing damages in excess of $700.00 to Defendant. 27. Plaintiff failed to deliver furniture in a timely manner causing a customer of Sofa Selections to cancel an order. 28. Plaintiff is trying to collect monies for this cancellation when the cancellation was the sole fault of Plaintiff. 29. Plaintiff has failed to provide a credit to Sofa Selections as is due. WHEREFORE, Defendant requests that Plaintiff's Complaint be dismissed with prejudice and that Defendant is awarded costs of suit, interest, attorney fees, punitive damages, and any other relief this Court deems appropriate. By gs 30) D 7 Date: MARTSON LAW OFFICES OZ A-4- ? /&?- Christopher E. Rice, Esquire Attorney I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant VERIFICATION Christopher E. Rice, Esquire, of the firm of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, attorneys for Defendant in the within action, certifies that the statements made in the foregoing Answer are true and correct to the best of his knowledge, information and belief. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. L24??' 5 tle, CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Answer was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Robert D. Kodak, Esquire KODAK & RvMLUM, P.C. 407 North Front Street P.O. Box 11848 Harrisburg, PA 17108-1848 MARTSON LAW OFFICES By_ V1444-? Price Ten ast High Street Carlisle, PA 17013 (717) 243-3341 Dated: $130 07 n •" o rs C.? rn C3 '` Co r Robert D. Kodak, Esquire Supreme Court I.D. 18041 KODAK & IMBLUM, P.C. Post Office Box 11848 407 North Front Street Harrisburg, PA 17108-1848 717-238-7152 Fax: 717-238-7158 email: robert.kodak@veriaon.net Attorney for Plaintiff CLAYTON MARCUS COMPANY, : IN THE COURT OF COMMON PLEAS INC., A LA-Z-BOY INCORPORATED CUMBERLAND COUNTY, PENNSYLVANIA COMPANY Plaintiff/Counterclaim Defendant V. : NO. 2007-2149 CIVIL DONALD L. SPITLER Individually and CIVIL ACTION - LAW trading as SOFA SELECTIONS Defendant/Counterclaim Plaintiff PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM AND NOW, this 14' day of September, 2007, comes Plaintiff/Counterclaim Defendant, Clayton Marcus Company, Inc., a La-Z-Boy Incorporated Company, by and through its Attorney, Robert D. Kodak, Esquire, Kodak & Imblum, P.C., and files its Preliminary Objections, as follows: MOTION FOR MORE SPECIFIC COMPLAINT 1. In Paragraph 24 of his Counterclaim, Counterclaim Plaintiff alleges that the Plaintiff/Counterclaim Defendant misrepresented the amount owed by over-billing him for parts and freight. No particulars are given regarding any over-billing to Counterclaim Plaintiff in said allegation. 2. In Paragraph 27 of his Counterclaim, Counterclaim Plaintiff alleges that the Plaintiff/Counterclaim Defendant failed to deliver furniture in a timely manner. Counterclaim Plaintiff does not allege anywhere that the Plaintiff/Counterclaim Defendant was given a "drop- dead" delivery date; hence said delivery, without more specifics, cannot be found to be delayed. 3. In Paragraph 29, Counterclaim Plaintiff alleges that Plaintiff/Counterclaim Defendant is trying to collect money for a canceled order and that it failed to provide a credit for same. Counterclaim Plaintiff's allegation totally lacks any particulars as to the specific order in question; therefore, Plaintiff/Counterclaim Defendant is unable to respond to Counterclaim Plaintiff's allegation. F:\USER\BONNIEJO\PO'S\WORKi33132.wpd:14SepO7 2 . WHEREFORE, Plaintiff/Counterclaim Defendant preliminarily objects to the Defendant/Counterclaim Plaintiff's Counterclaim as not being pled with sufficient specificity and requests this Honorable Court direct Defendant/Counterclaim Plaintiffto file a more specific Counterclaim. Respectfully submitted, KODAK & IMB M, P.C. Robert D. Kodak 407 North Front Street Post Office Box #11848 Harrisburg, PA 17108-1848 717.238.7152 Fax: 717.238.7158 Attorney I.D. No. 18041 Attorney for Plaintiff/ Counterclaim Defendant F:\USER\BONNIEJO\PO'S\WORK\33132.wpd:14SepO7 3 . . CERTIFICATE OF SERVICE I, Robert D. Kodak, Esquire, hereby certify that I have this date served a true and correct copy of the Plaintiff s Preliminary Objections to Defendant's Answer with New Matter and Counterclaim in the above-captioned matter upon the below listed individual(s) by causing same to be deposited in the United States mail, first class postage prepaid at Harrisburg, Dauphin County, Pennsylvania, addressed as follows: CHRISTOPHER E RICE ESQUIRE MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER TEN EAST HIGH STREET CARLISLE PA 17013 Dated: l KODAK & IMBLUM, P.C. Z? __> Robert D. Kodak 407 North Front Street Post Office Box 11848 Harrisburg, PA 17108-1848 (717) 238-7151 Attorney I.D. No. 18041 Attorney for Plaintiff/ Counterclaim/Defendant F:\USERWONNIEJO\PO'S\ WORK\33132.wpd:14SepO7 C) c m: rvi ? -v L tt; 0- it ROBERT D. KODAK, ESQUIRE KODAK & IMBLUM, P.C. 407 N FRONT STREET, PO BOX 11848 HARRISBURG, PA 17108-1848 (717) 238-7159 CLAYTON MARCUS COMPANY, INC., a La-Z-Boy Incorporated Company Plaintiff for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007-2149 CIVIL TERM v DONALD L. SPITLER individually and trading as SOFA SELECTIONS Defendants CIVIL ACTION - LAW PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS TO THE PROTHONOTARY: Please withdraw Plaintiff's Preliminary Objections filed to the above term and number on September 17, 2007. TO: Cumberland County Prothonotary Dated: February 22, 2008 Robert D. Kodak Attorney for Plaintiff Attorney I.D. No. 18041 r . CERTIFICATE OF SERVICE I, ROBERT D. KODAK, ESQUIRE, hereby certify that on February 22, 2008 , a true and correct copy of the Praecipe to Withdraw Preliminary Objections in the above- captioned matter was served upon opposing counsel via Regular U.S. Mail, deposited at Harrisburg, Pennsylvania, addressed as follows: CHRISTOPHER E RICE ESQUIRE MARTSON LAW OFFICES 10 EAST HIGH STREET CARLISLE PA 17013 KODAK & IMBLUM, P.C. Dated: Februarv 22, 2008 Robert D. Kodak, Esquire 407 North Front Street Post Office Box 11848 Harrisburg, PA 17108-1848 (717) 238-7159 Attorney I.D. No. 18041 Attorney for Plaintiff C_-D `n r Robert D. Kodak, Esquire Supreme Court I.D. 18041 KODAK & IMBLUM, P.C. Post Office Box 11848 407 North Front Street Harrisburg, PA 17108-1848 717-238-7152 Fax: 717-238-7158 email.- robert.kodak@verizon.net Attorney for Plaintiff CLAYTON MARCUS COMPANY, IN THE COURT OF COMMON PLEAS INC., a LA-Z-BOY INCORPORATED CUMBERLAND COUNTY, PENNSYLVANIA COMPANY Plaintiff V. NO. 07-2149 CIVIL DONALD L. SPITLER, Individually and CIVIL ACTION - LAW Trading as SOFA SELECTIONS Defendant PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM AND NOW this, the 14' day of July, 2008, comes Plaintiff, Clayton Marcus Company, Inc., a La-Z-Boy Incorporated Company, by and through its attorney, Robert D. Kodak, Esquire, Kodak & Imblum, P.C., and files the following replies to Defendant's New Matter and Counterclaim, as follows: PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER 9. Paragraphs 1 through 9 of Plaintiff's Complaint are incorporated fully and at length herein. 10. Admitted with explanation. Plaintiff's suit is based on Defendant's representations made on the Credit Application completed by Defendant, and the existence of any Personal Guaranty is irrelevant in regard to the matter 11. Admitted. 12. Admitted. 13. Denied. Kirk Firestone never requested Defendant execute a Personal Guaranty to guarantee the performance of Sofa Selections. 14. Denied. After reasonable investigation, Plaintiff is without sufficient information, knowledge or belief as to the truth or veracity of the allegation and proof thereof is demanded at trial. 1SER\BONNIEJO\NEWMATTE\REPLY\WORK\33132.wpd:14AprO8 2 15. Denied. After reasonable investigation, Plaintiff is without sufficient information, knowledge or belief as to the truth or veracity of the allegation and proof thereof is demanded at trial. 16. Denied. It is denied that Firestone ever convinced Mr. Spitler's daughter to sign a Personal Guaranty on his behalf under any circumstances. 17. Denied. After reasonable investigation, Plaintiff is without sufficient information, knowledge or belief as to the truth or veracity of the allegation and proof thereof is demanded at trial. 18. Denied. After reasonable investigation, Plaintiffis without sufficient information, knowledge or belief as to the truth or veracity of the allegation and proof thereof is demanded at trial. 19. Denied. After reasonable investigation, Plaintiff is without sufficient information, knowledge or belief as to the truth or veracity of the allegation and proof thereof is demanded at trial. S F. RIBONN IEJO\NE W MATTE\REPLY\ WORK\33132.wpd:14AprO8 20. Denied. At all times pertinent hereto, Defendant held himself out to Plaintiff and to the trade as doing business as Sofa Selections. 21. Denied. As far as doing business with Plaintiff, it is denied that D. L. Spitler Lumber Company, Inc. did business as Sofa Selections but, rather, Donald Spitler held himself out to Plaintiff as doing business as Sofa Selections. WHEREFORE, Plaintiff requests that Judgment be entered in its favor and against Defendant as prayed for in Plaintiff's Complaint. PLAINTIFF'S REPLY TO DEFENDANT'S COUNTERCLAIM COUNT I - Misrepresentation 22. Paragraphs 1 through 8 of Plaintiff's Complaint and replies to Paragraphs 9 through 21 of Defendant's New Matter are incorporated fully and at length herein. 23. Denied. Plaintiff denies that it, by and through its representative, misrepresented anything to Defendant or Defendant's daughter. Strict proof of the allegation is therefore demanded at trial. USI:R\BONNIEJO\NEWMATTE\REPLY\WORK133132.wpd:14Apro8 4 24. Denied. Plaintiff denies that it, by and through its representative, misrepresented anything to Defendant or Defendant's daughter. Strict proof of the allegation is therefore demanded at trial. WHEREFORE, Plaintiff requests that Judgment be entered in its favor and against Defendant as prayed for in Plaintiff's Complaint, and that Defendant's New Matter be dismissed. COUNT II - Breach of Contract 25. Paragraphs 1 through 8 of Plaintiff's Complaint, Paragraphs 9 through 21 of Plaintiff's replies to Defendant's New Matter, and Paragraphs 22 through 24 ofPlaintiff's replies to Defendant's Counterclaim, Count I, are incorporated fully and at length herein. 26. Denied. After reasonable investigation, Plaintiff is without sufficient information, knowledge or belief as to the truth or veracity of the allegation and proof thereof is demanded at trial. 27. Denied. Afterreasonable investigation, Plaintiff is without sufficient information, knowledge or belief as to the truth or veracity of the allegation and proof thereof is demanded at trial. F:AUSF;R\BONNIEJO\NEWMATTE\REPLY\WORK\33132.wpd:l4AprO8 5 28. Denied. Plaintiff denies that said cancellation was the sole fault of the Plaintiff and, in fact, alleges that it is entitled to collect monies for the cancellation due to the Defendant's default. 29. Denied. After reasonable investigation, Plaintiff is without sufficient information, knowledge or belief as to the truth or veracity of the allegation and proof thereof is demanded at trial. WHEREFORE, Plaintiff requests that Judgment be entered in its favor and against Defendant as prayed for in Plaintiffs Complaint, and that Defendant's New Matter and Counterclaim be dismissed. Respectfully submitted, 714 UM Robert D. Kodak 407 North Front Street Post Office Box # 11848 Harrisburg, PA 17108-1848 717.238.7152 Fax: 717.238.7158 Attorney I.D. No. 18041 Attorney for Plaintiff ':A[ISER\BONNIEJO\NEWMATTE\REPLY\WORK\33132.wpd:l4AprO8 6 .06/20/2008 16:19 FAX +000 000 0000 WILLIAMS & WILLIAMS INC 009/010 VERIFICATION LCO\ c 4inae of CLAYTON MARCUS COMPANY, INC., a LA-Z-BOY INCORPORATED COMPANY, verify that the statements made in the aforegoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. §4904, relating to unsworn falsification to authorities. CLAYTON MARCUS COMPANY, INC. a LA-Z-BOY INCORPORATED CO. By: Title: CLOI IA\!N Dated: (O 0 i C4n 12 - c? 5 - _ - F:\USER\BONN [EIO\NEW MATTE\REPLY\WORK\33132.wpd:14APNO I • . r CERTIFICATE OF SERVICE I, Robert D. Kodak, Esquire, hereby certify that I have this date served a true and correct copy of the Plaintiff's Reply to Defendant's New Matter and Counterclaim in the above- captioned matter upon the below listed individual(s) by causing same to be deposited in the United States mail, first class postage prepaid at Harrisburg, Dauphin County, Pennsylvania, addressed as follows: CHRISTOPHER E RICE ESQUIRE MARTSON LAW OFFICES TEN EAST HIGH STREET CARLISLE PA 17013 Dated: July 14 2008 KODAK & Robert D. Kodak 407 North Front Street Post Office Box 11848 Harrisburg, PA 17108-1848 (717) 238-7151 Attorney I.D. No. 18041 Attorney for Plaintiff F:\USER\BONNIEJO\N E W MATTE\REPLY\WORK\33132.wpd:14Ju108 _,.,. =r' e? ', ?; >- --?. A ?? t .{: 1F? CLAYTON MARCUS COMPANY, INC., a LA-B-BOY INCORPORATED COMPANY Plaintiff v DONALD L. SPITLER individually and trading as Sofa Selections Defendant(s) TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS Cumberland COUNTY, PENNSYLVANIA NO. 2007-2149 Civil Term CIVIL ACTION - LAW PRAECIPE Please mark the above-captioned matter as settled and discontinued with prejudice. TO: Cumberland County Prothonotary Dated: Aril 24, 2009 Robert D. Kodak, Esquire Attorney for Plaintiff Attorney I.D. No. 18041 OF THE Pr -,,'lV't'MM*Y 2009 AP 27 Pr's 3. 12