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Home My WebLink About07-6912ROBERT D. KODAK, ESQUIRE KODAK & IMBLUM, P.C. 407 N FRONT STREET, PO BOX 11848 HARRISBURG, PA 17108-1848 (717) 238-7159 Attorney for Plaintiff HUBBARD FEEDS, INC. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v NO. L, 91ol, (J L THOMAS H. McELWEE, JR. Defendant CIVIL ACTION - LAW 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. LISTED 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 HUBBARD FEEDS, INC. v THOMAS H. McELWEE, JR Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - /.o9/.2.,, CIVIL ACTION - LAW COMPLAINT The Plaintiff, HUBBARD FEEDS, INC., by its attorneys, KODAK & IMBLUM, P.C., brings this action of Assumpsit against the Defendant to recover the sum of FOURTEEN THOUSAND ONE HUNDRED TWENTY-SEVEN DOLLARS AND SEVENTY-SEVEN CENTS ($14,127.77), along with interest thereon at the statutory rate from June 12, 2007 upon a cause of action of which the following is a statement: 1. The Plaintiff, HUBBARD FEEDS, INC., is a corporation organized and existing under the laws of the State of Minnesota, having its principal office and place of business at 424 North Riverfront Drive, Mankato, MN 56002. 2. The Defendant, THOMAS H. McELWEE, JR., is an adult individual residing at 250 Jumper Road, Newburg, Cumberland County, Pennsylvania 17240. 3. On or about June 5, 2006, Defendant submitted a Credit Application and ACH Debit/Credit Application to Plaintiff, which credit was granted to Defendant, a true and correct copy of which is attached hereto, marked Exhibit "A" and made a part F:\USER\ROBIN\CCP&DJ CMPS\CCP COMPLAINTS\HUBBARD FEEDS 33750.wpd 2 hereof. 4. On the dates, in the amounts, and for the prices set forth in a true and correct copy of the Plaintiffs Statement of Account hereto attached, marked Exhibit "B" and made a part hereof, Plaintiff, at the special instance request of the Defendant, sold and delivered goods, wares and merchandise of the kind and description set forth on said Exhibit to the total amount of Thirty Thousand Six Hundred Twenty Dollars and Ninety-Five Cents ($30,620.95). 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 promised and agreed to pay to Plaintiff. 6. After crediting Defendant's ACH drafts and adding in NSF charges and services charges, the balance due and owing by Defendant to Plaintiff is the sum of Eleven Thousand Seven Hundred Seventy-Three Dollars and Fourteen Cents ($11,773.14), as appears by Exhibit "B" attached hereto. 7. Due to the default of Defendant, and pursuant to the terms and conditions of the Credit Application executed by Defendant hereto attached as Exhibit "A", attorney's fees in the total amount of Two Thousand Three Hundred Fifty-Four Dollars and Sixty-Three Cents ($2,354.63) have been added to said account. F:\USER\ROBIN\CCP&DJ CMPS\CCP COMPLAINTS\HUBBARD FEEDS 33750.wpd 3 8. Plaintiffs Invoices are not attached to this pleading due to the voluminous nature of same and have previously been provided to Defendant. 9. Plaintiff frequently demanded payment from Defendant of said amount due and owing as aforesaid, but Defendant refused and neglected and still refuses and neglects to pay said amount or any part thereof. WHEREFORE, Plaintiff brings this suit to recover from Defendant the sum of FOURTEEN THOUSAND ONE HUNDRED TWENTY-SEVEN DOLLARS AND SEVENTY- SEVEN CENTS ($14,127.77), together with interest as set forth herein. Respectfully submitted, KODAK 8 IMBLUM, Robert D. Kodak, Esquire 407 North Front Street Post Office Box #11848 Harrisburg, PA 17108-1848 (717) 238-7159 Attorney ID No. 18041 Attorney for Plaintiff F:\USER\ROBIN\CCP&DJ CMPS\CCP COMPLAINTS\HUBBARD FEEDS 33750.wpd 4 Mail original to: HUBBARD FEEDS INC. HFI Financial Services PO Box 5500 CREDIT APPLICATION Mankato, MN 56002.5500 (PLEASE TYPE OF PRINT CLEARLY) For Proprietorships (Individuals) and Partnerships, name, address and identification information needs to be completed on all individuals or partners involved. Attach additional listings on a separate sheet if necessary. Name: ?'1crw?zs fy\c- G iwc,e J SS # or TIN #. 1-1 q - (P) - f 3a7 Street Address: OL-5c) Akl City, State, ZIP: or- , P ! 7 2- M ailing Address: Phone: 0711) Q a3 - Ext. Ownership: Co-op E] orporation ? General Partnership E] Proprietorships (Individuals)f LLC ? Other: Owner: If Corporation / LLC: President: Manager: Secretary: If Partnership: List Partner Names: Credit Line Requested: $ S m. oza Terms Requested: 3y2-*? AC# Bank / Farm Credit Services Name: V'-Z I C. ?1M\ ('r Mailing Address: z lw-, C rJ,{ r kv1 City, State, ZIP: bL-Slok?x p 1 -)A Bank / Farm CreP Services / Othertend r Name: 2CIA-1 .?S N"%G-r\a bu'\V- Mailing Address: Jyyz City, State, ZIP: ?et..h I Q - i? 1-1 ay 1 Open Account itor ?,/ _' f Name: /`IT-VlEwl Va-s'-o e Mailing Address: Contact: Cie I,i Phone: 3 i{ Fax: ( 1 - Ext. Contact: aJlfa, W Vgky- Phone: (11? ) ?? -`J?1 Ext. Fax: Ext. Contact: / KE;V7- Z+eT2- Phone: ( 717) YZ7- X13 P Ext. City, State, ZIP: o?l{?,DS/??tktr Pf? Fax: ( } - Ext. CREDIT TERMS AVAILABLE - All invoices are due and payable in full according to terms as stated on invoice. If any invoice is not paid when due, Hubbard Feeds Inc. reserves the right to call all outstanding account balances of Customer immediately due and payable, without notice to Customer. As long as Hubbard Feeds Inc. chooses to forebear its right to immediate payment, Hubbard Feeds Inc. will assess a finance charge on that portion of the account which is overdue at a rate of interest equal to one and one-half percent (1.50%) per month, or the highest rate permitted by law. Hubbard Feeds Inc. reserves the right, from time to time, to alter the formula for calculating the amount of interest on Customer accounts. Customer hereby agrees to pay all costs of collections incurred by Hubbard Feeds Inc., including reasonable attorneys' fees and any other legal fees and costs, should a default in payment or any other obligation of Customer occur. The undersigned has carefully read and understands all the terms and conditions of this credit application. The undersigned warrants that the information provided in this application is true and correct and may be relied upon by Hubbard Feeds Inc. for purposes of obtaining credit information and extending credit. This credit application is the undersigned's signed authorization to permit Hubbard Feeds Inc. to contact any credit information agency, bank, lender, or other grantor of credit to release to Hubbard Feeds Inc. any and all financial statements and credit information requested. Hubbard Feeds Inc. has assured that all information so released will be held in strict confidence and released only upon my written authorization. This application is subject to Hubbard's delivery of separate written notice to Customer of final approval which may contain term's and conditions which are in addition to those stated herein. Date `tom r " O Authorized Signature:' /Ie` ? X L/?z (Customer) Print Name & Title: d?12S 1 ' `e } w?? r ?f ,' (Customer) -,-- Print Customer Name: /70M,4S 1 J1C-EZ IEP -PLEASE ATTACH A SIGNED, CURRENT FINANCIAL STATEMENT- Form # 1100 Re Rev. #: 2 A-] Mail Original to: HUBBARD FEEDS INC. HFI Financial Services PO PO Box 8600 APPLICATION FOR ACH Mankato, MN 66002-8600 DEBIT AND CREDIT PLAN Dealer / Customer M. _ Name: --T?fzNtq,3 P4 C-71wt!%? e Mailing Address: ota -4'%Abe ? City, State, Zip: Eu/,We : , 10A 17 Z I hereby request to participate in Hubbard Feeds Inc.'s ("Hubbard") ACH (Automated Clearing House) Debit and Credit Plan (the "Plan") for the purchase of feed products ordered and for the purpose of being paid for delivery receipt notes, credit memos, coupons, and other miscellaneous items. I understand that if approved for this Plan, I will receive allowed cash discounts (of which amount or percentage shall be determined by Hubbard in its sole discretion) on the purchase of feed products. Miscellaneous charges to my account will not receive these discounts. I understand and agree that: 1. Hubbard will draw debits or checks from my account and deposit the debits or checks in its accounts as a means of obtaining payment for feed products shipped. Hubbard will deposit credits due directly to my account, rather than issuing checks, for items listed in the above paragraph. i innn r,rpsentation for collection. I understand that the debits bits or checks, and will be SHIPPENSBURG COW NET 11509 For all monies due to me, THOMAS H McELWEE JR :dit system. A copy of the PH. 717-423-6869 60-994/313 250 JUMPER ROAD he ACH Credit Memo the BRANCH 87 NEWBURG, PA 17240 ssuance of the ACH Credit DATE ORDER F iw a debit or check for the ender this Plan. S, ncy in payment for an ACH DOLLARS nt of the invoice or invoices FARM UONAL gig oaNEWV UAD- iy cash discount unless the FOR : is returned uncollected, a ill be subject to our normal ncollected, Hubbard, at its 1: 0 3 13 0 9 9 4 5 1: 0 1 ?all 9 4 P3121 911' 5 h discounts are offered and a i means not past due. o. :r / customer. Authorization to Honor Debits or Checks Drawn by Hubbard Feeds Inc., Mankato, MN 66001 Bank Name: V "Ly?& 1 ? 1 MU &A K Mailing Address: 1 i Piv e- City, State, Zip: tL" . 1-c POP 1-13-41 I hereby request and authorize you to pay and charge to my account debits or checks drawn by and payable to the order of Hubbard Feeds Inc. of Mankato, Minnesota, provided there are sufficient funds in said account upon presentation. I agree that your rights in respect to such debits or checks shall be the same as if signed personally by me. It will not be necessary for any person employed by Hubbard Feeds Inc. personally to sign such debits or checks. I understand and agree that the bank shall be under no obligation to furnish me with any special advice or notice in writing or otherwise of the payment and in writing, and until you actually receive such notice, I agree that you shall be fully protected. I further agree that if any such debit or check is dishonored, whether with or without cause and whether intentionally or inadvertently, you shall be under no liability whatever. Date: - 14 A/F .5 ZQ? Print Account Name As Shown On Bank Records: Sign Here Exactly As You Sign Your Checks: For Joint Account, Both Depositors Should Sign: Checking Acct. Number: 0 9 `' t9 1 J? IMPORTANT: Attach either a voided check (or MICR coding sheet from your bank. Form #: 228 Revision Date: 06-01-05 Rev 43 STATEMENT OF ACCOUNT 161-06898 THOMAS MCELWEE 250 JUMPER ROAD NEWBURG PA 17240 6/11/2007 DATE REFERENCE AMOUNT BALANCE 1/15/2007 INVOICE 61 48682 5697.78 5697.78 1/16/2007 ACH DRAFT PAYING INVOICE 61 48682 -5697.78 0.00 1/18/2007 ACH DRAFT RETURNED - NSF 5697.78 5697.78 1/18/2007 NSF CHARGE ON RETURNED DRAFT 30.00 5727.78 1/19/2007 INVOICE 61 48804 5621.58 11349.36 1/22/2007 CHECK #5332 PAYING INVOICE 61 48804 -5424.83 5924.53 1/22/2007 CASH DISCOUNT ALLOWED ON INVOICE 61 48804 -196.75 5727.78 1/26/2007 INVOICE 61 48905 5843.05 11570.83 1/26/2007 CASH PAYMENT FOR INVOICE 61 48905 -6000.00 5570.83 1/29/2007 ACH DRAFT PAYING INVOICE 61 48905 -5843.05 -272.22 BANK WIRE TO PUT FUNDS INTO CUST ACCOUNT TO 1/30/2007 REPLACE FUNDS DRAFTED IN ERROR ON 1-29 5843.05 5570.83 1/31/2007 PAST DUE SERVICE CHARGE-JANUARY 5.04 5575.87 2/1/2007 ACH DRAFT RETURNED - NSF 5843.05 11418.92 2/1/2007 INVOICE 61 48937 1990.58 13409.50 2/2/2007 INVOICE 61 49020 5730.13 19139.63 2/2/2007 CASH PAYMENT FOR INVOICES 61 48937 & 61 49020 -7720.71 11418.92 2/9/2007 INVOICE 61 49145 5737.83 17156.75 2/12/2007 CASH PAYMENT FOR INVOICE 61 49145 -5737.83 11418.92 2/28/2007 PAST DUE SERVICE CHARGE-FEBRUARY 76.61 11495.53 3130/2007 PAST DUE SERVICE CHARGE-MARCH 82.09 11577.62 4/30/2007 PAST DUE SERVICE CHARGE-APRIL 82.69 11660.31 5/31/2007 PAST DUE SERVICE CHARGE-MAY 83.58 11743.89 6/11/2007 PAST DUE SERVICE CHARGE THRU JUNE 11, 2007 29.25 11773.14 REMIT TO: HUBBARD FEEDS INC PO BOX 8500 MANKATO MN 56002-8500 PHONE 507-388-9400 FAX 507-388-9453 VERIFICATION I, ROBERT D. KODAK, state that I am not a party to the action but that, at the request of the Plaintiff, HUBBARD FEEDS, INC., 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, Esquire Dated:_ November 13. 2007 W Q r4 rya 04: ?_' T- rv C"M ca cn ?? c? SHERIFF'S RETURN - REGULAR CASE NO: 2007-06912 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HUBBARD FEEDS INC VS MCELWEE THOMAS H JR TIMOTHY REITZ , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT Sc NOTICE was served upon MrVT.W7F TunMAP W TP the DEFENDANT at 1824:00 HOURS, on the 11th day of December , 2007 at 250 JUMPER ROAD NEWBURG, PA 17240 by handing to TYLER MCELWEE, SON 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 18.24 Postage .58 Surcharge 10.00 *00 4? 6.82 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 12/12/2007 KODAK & IMBLUM By: Denilty Sherif A.D. HUBBARD FEEDS, INC. Plaintiff v THOMAS H. McELWEE, JR., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA NO. 07-6912 Civil Term CIVIL ACTION - LAW NOTICE TO PLEAD To: Robert D. Kodak, Esquire Kodak & Imblum, P.C. 407 N. Front Street P.O. Box 11848 Harrisburg, PA 17108-1848 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED ANSWER WITHIN TWENTY (20) DAYS FROM THE SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. SHARPE By: J. cDowell Sharpe, Esq? A orney for Defendant 2 7 Lincoln Way East hambersburg, PA 17201 717) 263-8447 HUBBARD FEEDS, INC. Plaintiff v THOMAS H. McELWEE, JR., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA NO. 07-6912 Civil Term : CIVIL ACTION - LAW ANSWER, NEW MATTER AND COUNTERCLAIM NOW COMES Defendant Thomas H. McElwee, Jr. by and through his counsel, Sharpe & Sharpe, LLP, and files the following answer, new matter and counterclaim to the complaint: Answer 1. Admitted. Admitted. 2. 3. Admitted. By way of further answer, McElwee intended to purchase feed from Hubbard Feeds to promote his business of raising beef steers. 4. Admitted in part; denied in part. Admitted that McElwee bought feed on credit. It is specifically denied that Hubbard Feeds delivered the "goods, wares and merchandise" as ordered for the reasons set forth in new matter. The feed was unfit for the purpose purchased as witnessed by the representative of Hubbard Feeds and resulted in the loss of 15% to 30% of McElwee's herd due to bloating. 5. Denied as stated. The prices were just and.reasonable for good quality, correctly mixed feed which McElwee believed he was purchasing on Hubbard Feeds' recommendation. Because of the inferior quality and/or poor mixing instructions provided by Hubbard Feeds that resulted in health issues in McElwee's herd, the feed was not worth the price charged by Hubbard Feeds. 6. Specifically denied. The averments of paragraphs 3 through 5 above are incorporated herein by reference. Based upon new matter and counterclaim, Hubbard Feeds owes McElwee money. 7. Denied as stated. Plaintiff is not entitled to legal fees and costs for selling McElwee bad feed or proving erroneous mixing instructions. It is admitted that Hubbard Feeds has added on attorney fees, but disputed that, under the circumstances, those fees are reasonable. 8. Admitted. 9. Denied as stated. Hubbard Feeds has demanded payment but it is unjust for them to collect because of the losses caused to McElwee as set forth herein. WHEREFORE, defendant demands judgment in his favor with his costs. New Matter 10. In conjunction with McElwee's purchase of feed from Hubbard Feeds, Hubbard Feeds was providing nutritional advice through Ron Childs and instructions on the best manner and method of feeding, including on-site consultations. 11. On information and belief, when McElwee picked up at least one load of feed at Hubbard Feeds' plant, it was steaming which McElwee now believes indicated problems with the feed which caused a major incidence of bloating in the herd. 12. McElwee now believes and therefore avers that Hubbard Feeds had him mixing too high a proportion of its high protein feed which not only caused bloating issues within the herd, but also increased his cost of raising the herd. 13. In order to counteract the issues regarding its feed, Hubbard sold McElwee a large number of "Bufferlick tubs" which gave temporary and occasional relief to the bloating issue of the herd. 14. McElwee followed Hubbard Feeds' nutritional directions and mixed the purchased feed in the proportions that Hubbard Feeds directed which were nine parts of feed to eleven parts of shelled corn. 15. McElwee was also keeping Hubbard Feeds informed about the bloating issues. 16. Instead of the forty-five (45%) percent feed mix that Hubbard Feeds was recommending, on information and belief, he should have fed no more than a twenty- five (25%) percent mix. 17. The cost to McElwee of Hubbard Feeds' improper mixing instructions was approximately twenty (20%) percent of the total cost of his invoices from Hubbard Feed or about $6,000 that he was overcharged. WHEREFORE, defendant demands judgment in his favor with his costs Counterclaim 18. The averments of paragraph 1 through 15 above are hereby incorporated hereon by reference. 19. As a result of the feed sold to McElwee by Hubbard Feeds or as a result of the improper mixing instructions that Hubbard Feeds provided to McElwee, McElwee's experienced loss of steers in his herd at a rate 15 to 30 times the normal loss rate. 20. As a direct result of Hubbard Feeds' poor feed quality or improper mixing instructions, McElwee lost at least 300 steers at an average of $350.00 per head or a total of $105,000.00. 21. Once the bloating issues reached epidemic proportions, McElwee switched feed providers and only then did the health of his herd returned to normal. WHEREFORE, Counterclaim Plaintiff Thomas H. McElwee, Jr. demands judgment against Counterclaim Defendant Hubbard Feeds, Inc. in the amount of $105,000.00. SF By J. I hereby verify that the facts set forth in the foregoing instrument are true and correct to the best of my knowledge, information and belief, and that I make this verification subject to the penalties of 18 Pa.C.S. 4904 relating to unswom falsification to Authority, as authorized by the Judicial Code and Pennsylvania Rules of Civil Procedure. 2, Date: / - 2 - OF ? /'/ )/ / < CERTIFICATE OF SERVICE I hereby certify that this 4th day of January, 2008, 1 have served a copy of the foregoing instrument upon the following person(s) by forwarding the same by first class, United States mail, postage pre-paid, addressed as follows: Robert D. Kodak, Esquire Kodak & Imblum, P.C. 407 N. Front Street P.O. Box 11848 Harrisburg, PA 17108-1848 J. cDowell Sh*e; Esqu Att rney for Defendant 25 Lincoln Way East Ch mbersburg, PA 17201 (717) 263-8447 i -z ?.: rv u IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HUBBARD FEEDS, INC., Plaintiff, V. No. 07-6912 Civil Term THOMAS H. McELWEE, JR., Defendant. PRACEIPE OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of Robert D. Kodak, Esquire and the law firm of Kodak & Imblum, P.C. on behalf of Plaintiff Hubbard Feeds, Inc., and enter the appearance of and serve all notices on Howard L. Kelin, Esquire, Denise E. Elliott, Esquire and the law firm of Kegel Kelin Almy & Grimm LLP, on behalf of Plaintiff Hubbard Feeds, Inc. KODAK & IMB , P.C. KEGEL KELIN ALMY & GRIMM LLP 01 By: By: Robert D. Kodak, Esquire oward L. riih, Esqu Attorney I.D. No. Attorney I.D. No. 65124 407 N. Front Street Denise E. Elliott, Esquire PO Box 11848 Attorney I.D. No. 200735 Harrisburg, PA 17108-1848 24 N. Lime Street 717-238-7159 Lancaster, PA 17601 717-392-1100 czo s; Fri n -L.. , T rl CC) u IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HUBBARD FEEDS, INC., Plaintiff, V. No. 07-6912 Civil Term THOMAS H. McELWEE, JR., Defendant. PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM Plaintiff Hubbard Feeds, Inc. ("Hubbard") answers as follows the New Matter and Counterclaim of Defendant Thomas H. McElwee, Jr. ("Mr. McElwee"): Answer to New Matter 10. Denied as stated. When Mr. McElwee became a Hubbard customer in the summer of 2006, Hubbard assigned Ron Childs ("Mr. Childs") to be Mr. McElwee's sales representative. Mr. Childs conferred and communicated with Mr. McElwee to establish feeding programs and feed rations. Mr. Childs made recommendations for changes in feed rations as appropriate based on information and requests reported by Mr. McElwee. Hubbard transferred Mr. Childs to Indiana on December 1, 2006, and thereafter he had no further contact with Mr. McElwee. 11. Denied. There were no problems with Hubbard's feed or feed mixture recommendations. The feed Hubbard sold Mr. McElwee did not cause bloating or any other problem with Mr. McElwee's herd. Upon receiving Mr. McElwee's report in February 2007 of a bloating problem in his herd, Hubbard conducted an investigation that included an inspection of Mr. McElwee's farm and analysis of feed samples from Mr. McElwee's farm. Hubbard's investigation established that the problems with Mr. McElwee's herd were not caused by Hubbard feed. Hubbard communicated its investigation findings to Mr. McElwee in April of 2007, and offered to continue its investigation if Mr. McElwee wished to share additional information. Mr. McElwee made no further complaints to Hubbard. Hubbard is not liable in any manner to Mr. McElwee. 12. Denied. See answer to No. 11. 13. Denied. See answer to No. 11. Further, Mr. Childs occasionally recommended that Mr. McElwee purchase BufferLyx tubs to prevent acidosis. Neither Mr. Childs nor anyone else at Hubbard recommended that the BufferLyx tubs be used for the prevention of bloating. 14. Denied. Hubbard never directed Mr. McElwee to mix nine parts of feed to 11 parts of shelled corn (a 45% feed mix). Mr. Childs provided feeding recommendations after consulting with Mr. McElwee on feeding facilities available at Mr. McElwee's farm, the needs of Mr. McElwee's herd and Mr. McElwee's reports regarding the effect of the feed on his herd. Mr. Childs initially recommended that Mr. McElwee mix eight parts of feed with 12 parts of corn (a 40% feed mix). When Mr. McElwee complained to Mr. Childs that his calves were gaining too much frame but not enough body weight, Mr. Childs recommended that the feed be reduced and the corn be increased, so that the mixture consisted of 7 parts of feed and thirteen parts of corn (a 35% feed mix). To the extent Mr. McElwee was mixing 9 parts of feed to eleven parts of corn, he was not following Hubbard's recommendation. 15. Admitted only that Mr. McElwee contacted Hubbard on February 20, 2007, to report a bloating problem with his calves. In his communication with Hubbard, Mr. McElwee stated he had first noticed the bloating eight days earlier, on February 12, 2007. 16. Denied. See answer to No. 14. Hubbard did not recommend a 45% feed mix. Further, other than Mr. McElwee's concern noted above in answer to No. 14 (that his calves were gaining too much frame but not enough body weight with a 40% feed mix, which led Mr. Childs to recommend a 35% feed mix), Mr. McElwee reported to Mr. Childs that his calves were 2 doing well with the mixture recommended by Mr. Childs. Mr. Childs never received a major complaint from Mr. McElwee. 17. Denied. Hubbard did not provide Mr. McElwee with improper mixing instructions or overcharge Mr. McElwee. WHEREFORE, Plaintiff, Hubbard Feeds, Inc., requests that this Court enter judgment in its favor and against the Defendant, Thomas H. McElwee, Jr. Answer to Counterclaim 18. The responses to paragraphs 10-17 are incorporated by reference. 19. Denied. See answer to Nos. 11 and 14. There was no problem with Hubbard's feed or feed mix recommendations. The only reason Mr. McElwee has filed a counterclaim is to attempt to present an excuse for his failure to pay Hubbard's invoices identified in Hubbard's complaint. 20. Denied. See answer to No. 19. 21. Denied. See answer to No. 19. WHEREFORE, Plaintiff, Hubbard Feeds, Inc., respectfully requests that the Counterclaim of Defendant Thomas H. McElwee, Jr. be denied. KEGEL KELIN ALMY & GRIMM LLP UO?- By: "-towardl.*V-elin, Esquire Attorney ID No. 65124 Denise E. Elliott, Esquire Attorney ID No. 200735 24 North Lime Street Lancaster, PA 17602 (717) 392-1100 Counsel for Plaintiff, Hubbard Feeds, Inc. 3 VERIFICATION I, Michelle McMurray, affirm and verify that the facts set forth in the foregoing Answer, New Matter and Counterclaim are true and correct to the best of my knowledge, information and belief, and that I am authorized to sign this Verification. This Verification is made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Date:OUR, l V"Ull Michelle McMurray CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Answer to New Matter and Counterclaim was served this 12th day of June, 2008 upon the following person on the date and in the manner indicated below: U.S. first class mail, postage prepaid John M. Sharpe V, Esquire Sharpe & Sharpe LLP 257 Lincoln Way East Chambersburg, PA 17201 KEGEL KELIN ALMY & GRIMM LLP Dated:? By: 1 "4,1 /Ojd2O= Wise E. El ' t Es re c? p q 3 r' rip C.... 3 ril => ^t" ? (V t-I a Cil C. -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLLANIA CIVIL ACTION - LAW HUBBARD FEEDS, INC. ... cv 11-n , -" Plaintiff, , - -- to J r t. ., ICD V. No. 07-6912 = = e5 Civil Term . ern THOMAS H. MCELWEE, JR., ' Defendant. PRAECIPE FOR DISCONTINUANCE TO THE PROTHONOTARY: Kindly mark the above-captioned matter of record as Settled, Ended and Discontinued with prejudice. KEGEL KELIN ALMY & GRIMM LLP By: A 9J11T'__ DWse E. Ellice Esquire Attorney ID # 200735 24 North Lime Street Lancaster, PA 17602 (717) 392-1100 Counsel for Hubbard Feeds, Inc SHARPE & By: J. McDowePJShY Attorney ID # Jriso? 257 Lincoln Way East Chambersburg, PA 17201 717-263-8447 Counsel for Thomas H. McElwee, Jr ENTRY OF DISCONTINUANCE The above-captioned matter is hereby marked as Settled, Ended and Discontinued of record, with prejudice. PROTHONOTARY DEPUTY