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HomeMy WebLinkAbout01-6398POWER GOURMET CONCEPTS, INC.,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA Ve SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. AND A.C. KUHN, Defendants : NO. o~q~ =2001 CML : : : CIVIL ACTION - LAW : : JURY TRIAL DEMANDED PRAECIPE TO ISSUE A WRIT OF SUMMONS, To Curt Long, Prothonotary: Please issue a Writ of Summons against the defendants and enter my appearance on behalf of Power Gourmet Concepts, Inc.. Please have the Sheriff serve the defendants at the following addresses: Sunbury Cold Storage 750 Edison Avenue Sunbury, PA 17801 Sun-Re Cheese Corp. 178 Lenker Avenue Sunbury, PA 17801 Carlisle Cold Storage, Inc. 2 Kuhn Drive Carlisle, PA 17013 A. C. Kuhn 608 Alexander Spring Road Carlisle, PA 17013 Date: November 8, 2001 Respectfully submitted, 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 70216 Attorney for Plaintiff, Power Gourmet Concepts, Inc. Commonwealth of Pennsylvania County of Cumberland POWER CKTJ~4ET CONCEPTS, INC. SUB~URY COLD STORAGE, 7.50. ~Edi~_o.n.A~ve~n_~,_~ Sun in~.,b~ PA 17801, Car±~s±e Kuhn Drive, carlisle PA 17U13 SUN-RE C~EESE CORP., 178 Lenker Avenue, SunBury, PA 17801, and A.C. Kuhn, 608 Alexander Spring Road, Carlisle PA 17013 Court of Conwnon Plezz No. 2001-6398 civil t9 .... In Civil Law .......................... You are hereby notified that I~WER GOUMqET CCNCEPTS, INC. SUN-RE C~EESE CORP, AND A.C. Kuhn the Plaintiff has commenced an action in __CJ_v_iL_L~ ........................................... against you which you are required to defend or a default judgment may be entered against you. (SEAL) Date November 9, 2001 .... 19 .... POWER GOURMET CONCEPTS, INC., Plaintiff Ve SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. and A. C. KUHN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 6398-200~£1VIL TERM CIVIL ACTION - LAW PRAECIPE TO REISSUE THE PRAECIPE FOR A WRIT OF SUMMONS To the Prothonotary Please reinstate the Writ of Summon and serve the defendants as follows: Sunbury Cold Storage 750 Edison Avenue Sunbury, PA 17801 Carlisle Cold Storage, Inc. 2 Kuhn Drive Carlisle, PA 17013 Sun-Re Cheese Corp. 178 Lenker Avenue Sunbmy, PA 17801 A. C. Kuhn 608 Alexander Spring Road Carlisle, PA 17013 Respectfully Submitted: By: IRWIN, MeKNIGHT & HUGHES Mar]~ D. Schwartz, Esquire Attorney for Plaintiff 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 253-2353 Supreme Court I. D. #70216 Date: December 6, 2001 POWER GOURMET CONCEPTS, INC, Plaintiff SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. and A.C. KUHN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 6398-2001 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of THOMAS, THOMAS & HAFER, LLP as counsel on behalf of Defendant Sun-Re Cheese Corp. in the above-captioned matter. All papers may be served upon the undersigned at P.O. Box 999, Harrisburg, PA 17108-0999. THOMAS, THOMAS & HAFER, LLP C. Kent Pdce, Esquire I.D. No. 06776 Kimberly A. Bohle, Esquire I.D. No. 87565 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 A'I-fORNEYS FOR DEFENDANT SUN-RE CHEESE CORP. CERTIFICATE OF SERVICE AND NOW, this ) 8, ~"~ay of January, 2002, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendant Sun-Re Cheese Corp., hereby certify that I have this day served the within Praecipe for Entry of Appearance by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Mark D. Schwartz, Esquire Irwin McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 Sunbury Cold Storage 750 Edison Avenue Sunbury, PA 17801 Carlisle Cold Storage, Inc. 2 Kuhn Drive Carlisle, PA 17013 A.C. Kuhn 608 Alexander Spring Road Carlisle, PA 17013 THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire POWER GOURMET CONCEPTS, INC, Plaintiff SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. and A.C. KUHN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 6398-2001 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please issue a Rule directing Plaintiff to file a Complaint against Defendant Sun- Re Cheese Corp. within twenty (20) days or non pros seq. reg. THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire I.D. No. 06776 Kimberly A. Bohle, Esquire I.D. No. 87565 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 ATTORNEYS FOR DEFENDANT SUN-RE CHEESE CORP. POWER GOURMET CONCEPTS, INC, Plaintiff SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. and A.C. KUHN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 6398-2001 CIVIL ACTION - LAW JURY TRIAL DEMANDED RULE TO FILE COMPLAINT TO: Power Gourmet Concepts, Inc. cio Mark D. Schwartz, Esquire Irwin McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 You are hereby directed to file a Complaint against Defendant Sun-Re Cheese Corp. within twenty (20) days or non pros seq. reg. Prothonotary SHERIFF'S RETURN - REGULAR CASE NO: 2001-06398 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND POWER GOURMET CONCEPTS INC VS SUNBURY COLD STOR3kGE ET AL J MICHAEL ICKES , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon CARLISLE COLD STORAGE INC the DEFENDANT at 608 ALEXANDER SPRING ROAD , at 1320:00 HOURS, on the 12th day of December , 2001 CARLISLE, PA 17013 DORIS LEREW, PERSON IN CHARGE by handing to 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 6.00 Service 3.25 Affidavit .00 Surcharge 10.00 .00 19.25 Sworn and Subscribed to before me this ~O~ day of ~/~ o~L A.D. /P~othonotary ' ! ' So Answers: R. Thomas Kline 01/23/2002 IRWIN MCKNIGHT HUGHES · D%~Z~'Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2001-06398 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND POWER GOURMET CONCEPTS INC VS SUNBURY COLD STORAGE ET AL J MICHAEL ICKES , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon A C KUHN the DEFENDANT at 608 ALEXANDER SPRING ROAD , at 1320:00 HOURS, on the 12th day of December , 2001 CARLISLE, PA 17013 by handing to DORIS LEREW, TREAS 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 3 25 00 10 00 00 19 25 Sworn and Subscribed to before me this ~ day of ~ ~z~3 ~ A.D. /P~othonotary So Answers: R. Thomas Kline 01/23/2002 IRWIN MCKNIGHT HUGHES By: ~/De~l~--~he rl f f SHERIFF'S CASE NO: 2001-06398 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND POWER GOURMET CONCEPTS INC VS SUNBURY COLD STORAGE ET AL RETURN - OUT OF COUNTY R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT , to wit: SUN-RE CHEESE CORP but was unable to locate Them in his bailiwick. deputized the sheriff of NORTHUMBERLAND County, serve the within WRIT OF SUMMONS , Sheriff or Deputy Sheriff who being says, that he made a diligent search and He therefore Pennsylvania, to On January 23rd , 2002 , this office was in receipt of the attached return from NORTHUMBERLAND Sheriff's Costs: Docketing Surcharge 6.00 .00 10.00 .00 .00 16.00 01/23/2002 Sheriff of Cumberland County IRWIN MCKNIGHT HUGHES Sworn and subscribed to before me this ~ ~ day of ! / ~m3~ A.D. ! ! Prothonotary' SHERIFF'S RETURN CASE NO: 2001-06398 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND POWER GOURMET CONCEPTS INC VS SUNBURY COLD STOP~AGE ET AL - OUT OF COUNTY R. Thomas Kline duly sworn according to and inquiry for the within named DEFENDANT , to wit: SUNBURY COLD STORAGE but was unable to locate Them in his bailiwick. deputized the sheriff of NORTHUMBERLkND County, serve the within WRIT OF SUMMONS , Sheriff or Deputy Sheriff who being law, says, that he made a diligent search and He therefore Pennsylvania, to On January 22nd 2002 , this office was in receipt of the attached return from NORTHUMBERLAND Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Northumberland 39.24 .00 76.24 01/22/2002 So~~./~~answers: ~ ~ ~ ..... R. ~6mas Kline Sheriff of Cumberland County IRWIN MCKNIGHT HUGHES Sworn and subscribed to before me this ~'~ day of~ / I A.D. -~rothonot~r~ ' pLAINTIFF: POWER GOURMET CONCEPTS, INC. P: VS: DEFENDANT: SUNBURY COLD STORAGE D: 750 EDISON AVENUE, SUNBURY, PA 17801 D: SUN-RE CHEESE CORP. D: 178 LENKER AVENUE, SUNBURY, PA 17801 D: SHERIFF'S RETURN I HEREBY CERTIFY AND RETURN I SERVED: CASE #: 01 NO 6398 CTY FILED: CUMBERLAND FILE DATE: 01/11/09 DATE RECEIVED: 01/12/13 ASSIGNED TO: 2 DEF LAW FIRM: CUMBERLAND EXPIRES: 2002/01/07 REISSUED 2001/12/07 BY HANDING A TRUE AND ATTESTED COPY OF THE WITHIN: WRIT OF SUMMONS PERSON SERVED: NO SER. ON SUNBURY COLD STORAGE (NOT LOCATED AT ABOVE LOCATION) DATE SERVED: TIME: : PLACE SERVED: CAPACITY: COUNTY OF NORTHUMBERLAND AND STATE OF PENNA,, MAKING KNOWN UNTO : CONTENTS THEREOF. SO ANSWERS: CHARLES S. BERKOSKI, SHERIFF BY DEPUTY: STEINBERGER, GEORGE BY: RETURN THAT I SERVED: SUN-RE CHEESE CORP. REISSUED 2001/12/07 BY HANDING A TRUE AND ATTESTED COPY OF THE WITHIN: WRIT OF SUMMONS PERSON SERVED: BARBARA REEDER DATE SERVED: 2001/12/28 CAPACITY : OFFICE MkNAGER TIME: 1:45 PM PLACE SERVED: 178 LANKER AVENUE SUNBURY PA COUNTY OF NORTHUMBERLAND AND STATE OF PENNA., MAKING KNOWN UNTO : HER CONTENTS THEREOF. SO ANSWERS: CHARLES S. BERKOSKI, SHERIFF BY DEPUTY: STEINBERGER, GEORGE BY: THE THE DOCKET PAGE #: 01 CV 0828 SHERIFF'S COSTS: $ 39.24 REC #: 19359 NO. OF ATTEMPTS: 3 Sworn to aha subscribed before me this /2' day of f:Jcz.4. {~ROTHONO'fARY My CoFnm. E,,:~ Ist ~on. Jan. 2006 In The CoUrt of Common Pleas of Cumberland County, Pennsylvania Power Gourmet Concepts, Inc. VS. Sunbury Cold Storage et al SERVE: Sun-Re Cheese Corp. NO. 01 6398 civil ~OW, December 10 ,20 01 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Northkluberland County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service lq'OW, within ,20 , at o'clock M. served the upon by handing to a m~d made known to copy of the original So allswers~ the contents thereof. Sworn mud subscribed before me this __ day of ,20__ Sheriffof County, PA COSTS SERVICE MILEAGE AFFIDAVIT In The Court of Common Pleas of Cumberland County, Pennsylvania Power Gourmet Concepts, Inc. VS. Sunbury Cold StoraGe et al SERVE: sane NO. 01 6398 civil December 10 ,20..01 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Northumberland County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA. Affidavit of Service NOW, within ,20 , at o'clock M. served the upon by handing to a and made known to copy of the original the contents thereof. So answers, Sworn and subscribed before me this __ day of ,20__ Sheriff of County, PA COSTS SERVICE MILEAGE AFFIDAVIT Commonwealth of Pennsylvania County of Cumberland POWER GOURMET CONCEPTS, INC. SUS~URY COLD STORAGE, 750 Edison Avenue, Sunbur~ PA 17801, Carlisle Cold Storage, Inc., z Kuhn Drive, Carlisle PA 17013 SUN-RE CMEESE CORP., 178 Lenker Avenue, S__u~_, PA 17801, and A.C. Kuhn, 608 Alexander Spring Road, Carlisle PA 17013 Court of Common (D ,. Pleaa u~ No. 2001-6398 Civil ')~ ~ In Civil Law You are hereby notified that .___P~___R____G~__mET Cer~PTS, ZNC. the Plaintiff has commenced an action in _~Ci.v_il._La?z ........................................... against you which you are required to defend or a default judgment may be en~red~a/~j,'nst ~o? (SEAL) Date November 9, 2001 19 .... 0 · Ur,.) .o POWER GOURMET CONCEPTS, INC., Plaintiff SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CH~;ESE CORP. AND A.Co KUHN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. ~ ~ 2001 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days atter this complaint, order and notice are served, by entering a written appearance personally or by attorney and by 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 fights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 Americans with Disabilities Actof1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible t~acilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. POWER GOURMET CONCEPTS, INC., Plaintiff SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CI~F~ESE CORP. AND A.Co KUHN, Defendants : IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA 2001 CIVIL : CIVIL ACTION - LAW · JURY TRIAL DEMANDED COMPLAINT AND NOW, this I~ day of March, 2002, comes the Plaintiff, Power Gourmet Concepts, Inc., by and through their counsel, Irwin, McKnight & Hughes, and presents the following averments: 1. Plaintiff, Power Gourmet Concepts, Inc., (hereiaaf~er referred to as "Power Gourmet") located at 929 Home Avenue, Akron, Ohio 44310, is a corporation duly formed and operating under the law oft_he state of Ohio which regularly conducts business in the Commonwealth of Pennsylvania. 2. The Defendant, Sun-Re Cheese Corporation, (hereinafter referred to as "Sun-Re Cheese") located at 178 Lenker Avenue, P. O. Box 52, Sunbury, Pennsylvania, is a Pennsylvania corporation duly formed and operating under the law of Pennsylvania. 3. The Defendant, Sunbury Cold Storage, located at 750 Edison Avenue, Sunbury, Pennsylvania, is a Pennsylvania corporation duly formed and operating under the law of Pennsylvania. 4. The Defendant, Carlisle Cold Storage, Inc., (hereinafter referred to as "Carlisle Cold Storage") located at 2 Kuhn Drive, Carlisle, Pennsylvania, is a Pennsylwnia corporation duly formed and operating under the law of Pennsylvania. 5. The Defendant, A.C. Kuhn, is an adult individual whose last known address is 608 Alexander Spring Road, Carlisle, Pennsylvania. 6. At all times relevant herein, the Sunbury cold storage facility was owned by Defendants Carlisle Cold Storage, Inc. and/or A.C. Kuhn and/or a related entity owned in whole or in part by A.C. Kuhn. 7. At all times relevant herein, Defendant Carlisle Cold Storage, Inc. and/or A.C. Kuhn and/or said related entity, was leasing the Sunbury facility to Defendant Sun-Re Cheese. 8. At all times relevant herein, the Sunbury facility was under the care, custody and control of and/or operated by the Defendants Sun-Re Cheese Corporation, Sunbury Cold Storage, Carlisle Cold Storage, Inc., A.C. Kuha and/or a related entity. 9. On or about January, 2000, Plaintiff contracted with Defendants to store large quantities of veal bones at the facility in Sunbury, Pennsylvania, being leased and operated by Defendant Sun-Re Cheese. 10. In January, 2000, Plaintiff delivered lot #0448, total weight of 24,820 pounds of veal bones and lot g40054, total weight of 32,975 pounds of veal bones to the Sunbury cold storage facility leased and operated by Sun-Re Cheese Corporation for storing. 11. On or about February 15, 2000, Plaintiff delivered lot g40445, total weight of 40,000 pounds of veal bones to the Sunbury Cold Storage facility for storage. 12. On or about February 21, 2000, Plaintiff added an additional 19,200 pounds of veal bones, lot g0353 to the Sunbury cold storage facility for storage. 13. In exchange for providing the cold storage facilities, Plaintiff was required to pay storage costs to Defendant. Plaintiffreceived various invoices for services by Defendants. Tree and correct copies of said invoices are attached hereto and incorporated herein by reference thereto as Exhibit "A." 14. Defendant's invoices attached hereto as Exhibit "A" indicate that the products being stored by Plaintiff at the Sunbury Cold Storage facility were veal bones. 15. At all times relevant herein, Defendants were aware that the contents being stored by Plaintiff were veal bones. 16. At all times relevant herein, Defendants were aware that the veal bones were perishable food items and/or items used in food preparation. 17. The Sunbury Cold Storage facility owned and operated by Defendants primarily stores perishable food items or products for its customers. 18. At all times relevant herein, Defendants were aware that the items being stored were food items and used in processing and/or food preparation and therefore they needed to be kept free of any contamination. 19. After storing the veal bones at the Defendant's facility for several months, Plaintiff, in June 2000, removed several pallets of veal bones from the Sunbury facility and delivered them to Plaintiff's facility in Selinsgrove, Pennsylvania. 20. On inspection of the veal bones by Plaintiff or its agents at the dock prior to entering into Plaintiff's facility in Selinsgrove, it was discovered that the veal bones were contaminated with rodent feces and urine. 21. Under federal and state regulations conceming food contamination, any contaminated goods may not be approved for entry into any approved FDA food processing facility. 22. Due to the contamination, the goods were rejected for receipt into the plant and had to be denatured and discarded through Mopac Rendering Company. 23. Plaintiff immediately informed Defendant Sun-Re Cheese of the contamination of these particular goods. 24. As a result of that information, the Defendants upon information and belief had their facility inspected by Erlich Pest Inspection Company (hereinafter referred to as "Edich's"). 25. Upon information and belief, it was determined by Erlichs that the entire Sunbury cold storage facility was infested with mice and/or other rodents. 26. Upon information and belief, Erlichs extermination company then treated the facility including but not limited to setting numerous traps to catch the mice and/or rodents. 27. On or about July 2000, employees of Plaintiff traveled to the Sunbury cold storage facility to inspect the remaining lots of veal bones which continued to be stored at the facility. 28. As a result of that inspection, Plaintiff established that the remaining lots of veal bones and/or the packaging were also contaminated with rodent feces and urine. 29. Under federal and state regulations, Plaintiff is unable to accept into their federally approved food processing facility any goods which are contaminated or any goods which have contaminated packaging. 30. Upon information and belief, the U.S. Department of Agriculture (USDA) inspector would not allow any further shipment from the Sunbury Cold Storage facility to be received by Plaintiff due to the contamination. 31. Shortly thereafter Plaintiff was notified by Defendant Sun-Re Cheese that the facility had a compressor failure which subjected the goods to an unsafe thaw/freeze cycle rendering the already contaminated goods completely destroyed. 32. Plaintiffpaid Defendant Sun-Re Cheese storage charges in the approximate amount of Five Thousand Six Hundred Twenty-Seven and 72/100 ($5,627.72) Dollars for storage of the above-mentioned veal bones from January 2000 through June 2000. 33. Due to Defendants actions and/or inactions, all of Plaintiff's goods located at the Sunbury storage fueility were contaminated and/or rendered unfit for their intended purposes. 34. Plaintiff notified Defendants that all the remaining veal bones were contaminated and could not be used by Plaintiffnor taken to any of Plaintiff's facilities because of said contamination. 35. Defendants failed to perform the services it offered to the Plaintiff in a good and workmanlike manner in that they: b. 36. discarded. 37. Failed to provide an adequate environment for cold storage of food products; Allowed their facility to become infested with rodents; c. Failed to properly exterminate the rodents; and d. Allowed Plaintiff's goods to become contaminated. Plaintiff has or will incur additional damages for the contaminated goods to be properly Defendants' have failed and refused to compensate Plaintiff for the loss of said goods or for reimbursement of storage and related costs. COUNT I - BREACH OF CONTRACT POWER GOURMET V. SUN-RE CHEESE 38. The averments of paragraphs one (1) through thirty-seven (37) of this Complaint are made a part hereof and incorporated herein by reference. 39. Defendant Sun-Re Cheese owed a contractual duty to the Plaintiff to provide an appropriate cold storage facility for Plaintiff's perishable goods and to !ceep sa:~d goods free fxom contamination and spoilage. 40. Defendant Sun-Re Cheese breached said duty by allowing the facility to be over nm with pests which contaminated and destroyed Plaintiffs goods and by the failure of it's compressor, which caused Plaintiff's goods to pass through an unsafe thaw/freeze cycle. 41. As a result of Defendant Sun-Re Cheese's breach, Plaintiff has suffered damages, including but not limited to it's loss of Thirty-Seven Thousand Four Hundred Thirty-Eight and 49/100 ($37,438.49) Dollars for the value of the contaminated and spoiled veal bones and the amount of storage fees paid to Sun-Re Cheese by Plaintiff in the amount of Five Thousand Six Hundred Twenty-Seven and 72/100 ($5,627.72) Dollars. WHEREFORE, Plaintiff, Power Gourmet, Inc., respectfully requests this Court to enter judgment in its favor and against Defendant Sun-Re Cheese Corporation in an amount in excess of $25,000.00 plus interest, costs and any other relief this Court deems appropriate. COUNT H - BREACH OF CONTRACT POWER GOURMET V. CARLISLE COLD STORAGE~ INC., A.C. ~ AND SUNBURY COLD STORAGE 42. The averments of paragraphs one (1) through forty-one (41) of this Complaint are made a part hereof and incorporated herein by reference. 43. Defendants Carlisle Cold Storage, Inc., A.C. Kuhn and/or Sunbury Cold Storage, at all times relevant hereto, were in custody and control of the aforementio~efl Sunbury cold storage facility. 44. Defendant Carlisle Cold Storage, Inc., A.C. Kuhn end/or Sunbury Cold Storage owed a contractual duty to the Plaintiff to provide an appropriate cold storage facility for Plaintiffs perishable goods and to keep said goods free from contamination and spoilage. 45. Defendant Carlisle Cold Storage, Inc., A.C. Kuhn and/or Sunbury Cold Storage breached said duty by allowing the facility to be over run with pests which contaminated and destroyed PlaintiWs goods and by the failure of it's compressor, which caused PlaintiWs goods to pass through an unsafe thaw/freeze cycle. 46. As a result of Defendant Carlisle Cold Storage, Inc., A.C. Kuhn and/or Sunbury Cold Storage's breach, Plaintiff has suffered damages, including but not limited to it's loss of Thirty-Seven Thousand Four Hundred Thirty-Eight and 49/100 ($37,438.49) Dollars for the value of the contaminated and spoiled veal bones and the amount of storage fees paid to Carlisle Cold Storage, Inc., A.C. Kuhn and/or Sunbury Cold Storage by Plaintiffin the amount of Five Thousand Six Hundred Twenty-Seven and 72/100 ($5,627.72) Dollars. WHEREFORE, Plaintiff, Power Gourmet, Inc., respectfully requests this Court to enter judgment in its favor and against Defendant Carlisle Cold Storage, Inc., A.C. Kuhn and/or Sunbury Cold Storage in an amount in excess of $25,000.00 plus interest, costs and any other relief this Court deems appropriate. COUNT III - BREACIt OF BAILMENT CONTRACT POWER GOURMET V. SUN-RE CICIEESE CORP., CARLISLE COLD STORAGE~ INC.~ A.C. KUI-IN AND/OR SUNBURY COLD STORAGE 47. The averments of paragraphs one (1) through forty-six (46) of this Complaint are made a part hereof and incorporated herein by reference. 48. The aforesaid acceptance by Dzfeadants of Pl~:intiWs goods for storage at Defendants' facility constituted a bailment. 49. Defendants have failed to and cannot return to Plaintiff its goods in the same condition in which they were delivered to Defendants. 50. Defendants are liable for the aforesaid damages to Plaintiff's goods while the goods were in Defendant's possession, custody and control and other related costs and damages. WHEREFORE, Plaintiff, Power Gourmet, Inc., respectfully requests this Court to enter judgment in its favor and against Defendant Sun-Re Cheese Corporation, Carlisle Cold Storage, A.C. Kuhn and/or Sunbury Cold Storage in an amount in excess of $25,000.00 plus interest, costs and any other relief this Court deems appropriate. COUNT IV - NEGLIGENCE POWER GOURMET V. SUN-RE CHEESE CORP., CARLISLE COLD STORAGE~ INC.~ A.C. KUHN AND/OR SUNBURY COLD STORAGE 51. The averments of paragraphs one (1) through fifty (50) of this Complaint are made a part hereof and incorporated herein by reference. 52. Defendants, Sun-Re Cheese Corp., Carlisle C~1¢' Storage, Inc., A.C. Kuhn and Sunbury Cold Storage owed a duty to Plaintiff to properly care for Plainti£f'; goods while said goods were at their facility and in their possession, custody and control. 53. Defendant, Sun-Re Cheese Corp., Carlisle Cold Storage, Inc., A.C. Kuhn and Sunbury Cold Storage breached their duty to Plaintiff by acting negligently, carelessly and recklessly in that it: a. Failed to provide an adexlnate er..vironment ~'or cvld storage of food products; b. Allowed their facility to become infested with rodents; e. Failed to properly exterminate the rodents; d. Allowed Plaintiff's goods to become contaminated. 54. Defendants are liable to Plaintiff for the afores~ifl damages to Plaintiff's goods while the goods were in the Defendant's possession, custody and control and otker related ,:osts and damages. WHEREFORE, Plaintiff, Power Gourmet, Inc., respectfully requests this Court to enter judgment in its favor and against Sun-Re Cheese Corp., Carlisle Cold Store, Inc., A.C. Kuhn and Sunbury Cold Storage in an mount in excess of $25,000.00 plus interest, costs and any other relief this Court deems appropriate. Respectfully submitted, IRWIN, ~IG~tUGHES Mark D. Schwartz, Esquire Supreme Court I.D. # 70216 60 West Pomfret Street Carlis!c, PA 17013 (717) 249-2353 Attorney for Plaintiff Power Gourmet Concepts, Inc. Sun-Re Cheese Corporation 178 Lenker Avenue P 0 BOX 52 Sunbury, PA 17801 Ph 570 286-1511 Fax 570 286-5123 March 7, 2000 Power Gourmet Concepts 115 W. Bartges Street Akron, OH 44311 Ph 800 860 9385 Invoice S 13 Storage Charges - Carlisle Cold Storage 6102 April Charges 1081.33 Total 1081.33 Please make check payable to: Sun-Re Cheese Corporation Terms N/15 Contact: Angie Marlin Grimes 374-7375 Power Gourmet Concepts, [ne. Entry# I17~/ Approved~ Dis.~. Acct. #(s) Amount DL .:./Due Date ;COUNT NO. VENDOR 1900 Sun-Re Cheese Corporation ;HECK NO; 002671 I CHECK DATE 3/22/00 ~UCHER INVOICE NUMBER Ny. DATE REFERENCE INVOICE AMOUNT AMOUNT PAID DISCOUNT TAKEN 9ET CHECK AMOUN I06~ S12 3/07/0( 1,325.17 1,325,17 .00 f,325.17' CHECK TOTAL 1,325,17 Invoice S 12 Storage Charges - Carlisle Cold Storage 02-15-oo 1081.33 March Storage 127,215 Total ~ Please make check payable to: Sun-Re Cheese Corporation /j ~.- 3//~' Terms N/15 _~ Contact: Angle Marlin Grimes 374-7375 Power Gourmet Concepts, lt~ Entry # /P ~' ? Approved Distr. Acct. #(s) Amount. MAY 1 2 2000 AKRON Sun-Re Cheese Corporation 178 Lenker Avenue P 0 BOX 52 Sunbury, PA 17801 Ph 570 286-1511 Fax 570 286-5123 Power Gourmet Concepts 115 W. Bartges Street Akron, OH 44311 Ph 800 860 9385 Invoice S14 Power Gourmet Cone, t~t~, I~e. Entry # /~7~'? Approved 4)' . Distr. Acct. #(s) Amount Disc./Due Date ,;/£ '/' Storage Charges - Carlisle Cold Storage May 10, 2000 6103 May Charges 1081.33 Total 1081.33 Please make check payable to: Sun-Re Cheese Corporation Terms N/15 Contact: Angie Marlin Grimes 374-7375 Sun-Re Cheese Corporation 178 Lenker Avenue P 0 BOX52 Sunbury, PA 17801 Pb 570 286-1511 Ftvc 570 286-5123 2000 Power Gourmet Concepts 115 W. Bartges Street Akron, OH 443I 1 Ph 800 860 9385 Invoice S 15 Storage Charges - CarlisLe Cold Storage June 13, 2000 994.46 6107 June Charges Total 994.46 Please make check payable to: Sun-Re Cheese Corporation Terms N/15 Contact: Angle Marlin Grimes 374-7375 Bulk Storage I.nvoice, SUNBUBY COLD STORAGE 750 EDISON AVENUE 8UNBURY, PA 17801 Phone (717) 286-3052 No 6107 Name Address Number of Packages LotNo. o ~l--Average /gg. oo Vo o~o /d~.~o Int. or Disc. TOTAL FEB-04-2002 O~:;;PM FROM-IRWIN, ~KNIGHT & HUGHES LAW O;FICE$ +T172498354 T-I08 P.OG2/OO2 F-88T The foregoing document is based upon information which has be~n gathered by corporate counsel and myself iu the preparation of *~ action- I have r~ad ~he statements made in this document and they are truc aud correct to the best of my knowledge, i~formation and belief- I understand that false statements herein made are subject to th~ penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification t~ authorities. POWER GOURMET CONCEPTS BRAD SACKS, President Date: MARCH 15 ~ 2002 POWER GOURMET CONCEPTS, INC.,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. AND A.C. KUHN, Defendants : NO. 6398 2001 CIVIL : CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Mark D. Schwartz, Esq. hereby certify that a copy of attached Complaint was served upon the following by depositing a tree and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Sunbury Cold Storage 750 Edison Avenue Sunbury, PA 17801 Carlisle Cold Storage, Inc. 2 Ku.hn Drive Carlisle, PA 17013 C. Kent Price, Esq. 305 North Front St. Sunbury, PA 17801 A. C. Kuhn 608 Alexander Spring Road Carlisle, PA 17013 Date: March 18, 2001 Respectfully submitted, Mark D. Schwartz, Esquire 60 West Pomfi'et Street Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 70216 Attorney for Plaintiff, Power Gourmet Concepts, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW POWER GOURMET CONCEPTS, INC., Plaintiff, VS. SUNBURy COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. and A.C. KUHN, Defendants : No. 6398 2001 Civil : : JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of the Defendants, Carlisle Cold Storage, Inc. and A. C. Kuhn ONLY in the above case. Date:. Respectfully submitted, BLAKEY, YOST, BUPP & RAUSCH, LLP Donald B Hoyt, Esqui~ Counsel for Defendants, Carlisle Cold Storage, Inc. and A.C. Kuhn 17 East Market Street York, PA 17401 (717) 845-3674 Supreme Ct. I.D. #18061 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW POWER GOURMET CONCEPTS, INC., Plaintiff, VS. SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. and A.C. KUHN, Defendants No. 6398 2001 Civil JURY TRIAL DEMANDED MOTION TO COMPEL PLAINTIFF TO RESPOND TO DOCUMENT REQUEST Defendants, Carlisle Cold Storage, Inc. and A. C. Kuhn, by their undersigned counsel, hereby move this Court to enter an order pursuant to Pa. R.C.P. 4019(a)(1)(i) directing Plaintiff to serve documents requested by said Defendants, or suffer sanctions, and in support thereof avers as follows: 1. The action was instituted by Complaint on or about March 15, 2002. 2. By letter dated April 9, 2002, counsel for the Petitioners requested that Plaintiffs counsel, Mark D. Schwartz, Esquire, provide various documents to clarify statements in Plaintiff's Complaint. A copy of that letter is attached as Exhibit A. 3. On May 23, 2002, counsel for the Petitioners again requested the documents from Plaintiffs counsel, a copy of that letter being attached as Exhibit B. 4. On Junell, 2002, counsel for the Petitioners made his third request for the documents from Plaintiffs counsel, a copy of that letter being attached as Exhibit C. 5. A fourth request for the documents was made by Petitioner's counsel on July 9, 2002. A copy of that letter is attached as Exhibit I). 6. Almost four months have passed since counsel for the Petitioners first requested the documents from Plaintiff's counsel. 7. For the foregoing reasons, counsel for the Petitioners believes and avers that Plaintiff will not furnish the documents absent a Court order pursuant to Pa. R.C.P. 4019(a)(1)(i). WHEREFORE, Defendants Carlisle Cold Storage, Inc and A. C. Kuhn, request that the Court enter an Order directing Plaintiff, Power Gourmet Concepts, Inc., to fumish the documents requested in Petitioners' counsel's letter of April 9, 2002, within ten (10) days or suffer appropriate sanctions to be imposed upon further application to the Court. Respectfully submitted, BLAKEY, YOST, BUPP & RAUSCH, LLP S. Ct. I.D. #18061 Attomey for Defendants Carlisle Cold Storage, Inc. and A. C. Kuhn 17 East Market Street York, PA 17401 Telephone (717) 845-3674 Fax No. (717) 854-7839 CERTIFICATE OF SERVICE I hereby certify that I am this day causing a copy of the foregoing Motion to Compel to be served on the following person in the manner indicated: By First Class United States Mail on: Mark D. Schwartz, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 C. Kent Price, Esquire Thomas, Thomas & Hafer 305 North Front Street Harrisburg, PA 17101 BLAKEY, YOST, BUPP & RAUSCH, LLP By: (.~Norma ~2 Do~P. arale~'~f- Dated: August 2, 2002 ALBERT G. BLAK~Y DAVID WM, BUPP DONALD B. HOYT CHARLBS A. RAUSCH $AIIA A. AUSTIN STAC~Y IL MACIq~AL LAW OFFICES BLAK~¥, YOST, BUPP & RAUSCH, LLP 17 EAST MARKET STREET YORK, PENNSYLVANIA 17401 TELEPHONE (717) 845-3674 FACSIMILE (717) 854-7839 PL~ASE CORRESPOND TO YOP-K OFFICB April 9, 2002 Mark D. Schwartz, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 Re.' Power Gourmet Concepts, Inc. v. Sunbury Cold Storage, Carlisle Cold Storage, Inc., Sun-Re Cheese Corp. and A.C. Kuhn Dear Mr. Schwartz: I have reviewed your Complaint and have a few requests. 1. In ¶ 6, you identify a Sunbury Cold Storage facility. I assume the address is 750 Edison Avenue, Sunbury, Pennsylvania. Correct? 2. On what basis do you allege it was owned by my clients? If you have any kind Of title information, please provide it. 3. In ¶ 9, you allege an agreement for January 2000. Please provide a copy. 4. Please provide copies of all documents to or from FDA, USDA or PADA. 5. Please provide copies of any statements that you have. 6. Please provide copies of any documentation from Ehrlich. Mark D. Schwartz, Esquire April 9, 2002 Page 2 I assume most, if not all, of these documents are in your file already, so I would appreciate receiving them promptly. BLAKEY, YOST, BUPP & RAUSCH, LLP DBH/isk CC: C. Kent Price, Esquire Ms. Marylou F. Ward Claim No. 0P20328 IW-P2 LAW OFFICES BL~KEY, YOST, BU~P & I~USCH, LLP 17 EAST MARKET STREET YORK, PENNSYLVANIA 17401 TELEPHONE (717) 845-3674 FACSIMILE (717) 854-7839 PLEASE CORRESPOND TO yORK OFFICE May 23, 2002 Mark D. Schwartz, Esquire Irwin, McKnight & Hughes 60 West Pomf~et Street Carlisle, PA 17013 Re: Power Gourmet Concepts, Inc. v. Sunbury Cold Storage, Carlisle Cold Storage, Inc., Sun-Re Cheese Corp. and A.C. Kuhn Dear Mr. Schwartz: I have received no response to my letter of April 9, 2002, a copy of which is enclosed. Please respond promptly. Thank you. Very truly/y,~s, BLAKEY, YOST, BUPP & RAUSCH, LLP DBH/isk Enclosure C. Kent Price, Esquire Ms. Marylou F. Ward Claim No. 0P203281W-P2 ALBERT/3. BLAKI/Y DAVID WM. BUPP DONALD B. HOYT CHARLES A. RAUSCH SARA A. AUSTIN STACEY I~ MACNEAL LAW OFFICES BL^KEY, YOST, BUP? & RAUSCH, LLP 17 EAST MARKET STREET YORK, PENNSYLVANIA 17401 TELEPHONE (717) 845-3674 FACSIMILE (717) 854-7839 PLEASE CORR]~POND TO YORK. OFFICE June 11, 2002 Mark D. Schwartz, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 Re: Power Gourmet Concepts, Inc. v. Sunbury Cold Storage, Carlisle Cold Storage, Inc., Sun-Re Cheese Corp. and A.C. Kuhn Dear Mr. Schwartz: I have still received no response to my letter of April 9, 2002. Please respond promptly. Thank you. --Donal~ BLAKEY, YOST, BUPP & RAUSCH, LLP DBH/isk CC: Ms. Marylou F. Ward Claim No. 0P203281W-P2 Exhibit D ALBERT/3, BLAKEY DAVID WM BUPP DONALD B. HOYT CHARLES A. RAUSCH SARA A. AUSTIN STACEY R. MACNF. J~L LAW OFFICES BL^KEY, YOST, BUPP & RAUSCH, LLP 17 EAST MARKET STREET YORK, PENNSYLVANIA 17401 TELEPHONE (717) 845 -3674 FACSIMILE (717) 854-7839 PLEASE CORRESPOND TO YORK OFFICE July 9, 2002 DILLSBURGOFFICE: 104 SOUTH BALTIMORJ~$TRBLVY DILL~BURG, PA 17019 (717) 502-8256 Mark D. Schwartz, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 Re: Power Gourmet Concepts, Inc. v. Sunbury Cold Storage, Carlisle Cold Storage, Inc., Sun-Re Cheese Corp. and A.C. Kuhn Dear Mr. Schwartz: For three (3) months I have been requesting documentation from you. I should not have to go to Court for such a simple matter, but I will unless I hear from you promptly. Very ~~ BLAKEY, YOST, BUPP & RAUSCH, LLP DBH/isk CC: Ms. Marylou F. Ward Claim No. 0P203281W-P2 POWER GOURMET CONCEPTS, 1NC., Plaintiff VS. SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP., and A.C. KUHN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-6398 CIVIL CIVIL ACTION -LAW JURY TRIAL DEMANDED IN RE: MOTION TO COMPEL ORDER AND NOW, this q ~' day of August, 2002, a role is issued on the plaintiff, Power Gourmet Concepts, Inc., to show cause why the relief requested in the within motion ought not to be granted. This role returnable twenty (20) days after service. BY THE COURT, Pric POWER GOURMET CONCEPTS, INC., Plaintiff Ye : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 6398-200iCIVIL TERM SUNBURY COLD STORAGE, : CARLISLE COLD STORAGE, INC., : SUN-RE CHEESE CORP. and : A. C. KUHN, : Defendants : CIVIL ACTION - LAW NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Date: August ].~, 2002 IRWIN, McKNIGHT & HUGHES Jam~ O~/t~ghes, Esq. - Supreme Court I.D. No. 58884 Douglas G. Miller, Esquire Supreme Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiffs, Power Gourmet Concepts, Inc. POWER GOURMET CONCEPTS, INC., Plaintiff Ye SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. and A. C. KUHN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 6398-2001CIVIL TERM CIVIL ACTION - LAW PLAINTIFF'S ANSWER OF DEFENDANTS CARLISLE COLD STORAGE, INC., AND A.C. KUHN WITH NEW MATTER TO THE MOTION TO COMPEl, AND NOW, this __ day of August, 2002, comes the Plaintiff, POWER GOURMET CONCEPTS, INC. by and through its attorneys, Irwin, McKnight & Hughes, and makes the following Answer with New Matter to the Motion to Compel filed by Defendants, CARLISLE COLD STORAGE, INC., and A. C. KUHN, averring as follows: The averments of fact contained in paragraph one (1) of the Motion are admitted. The averments of fact contained in paragraph two (2) of the Motion are denied as stated. It is admitted that Exhibit "A" was received by legal counsel for Plaintiff. All remaining averments, including any inference that the exhibit complies with Pennsylvania Rules of Civil Procedure governing discovery are specifically denied and strict proof thereof is demanded at trial. The averments of fact contained in paragraph three (3) of the Motion are denied as stated. It is admitted Exhibit "B" was received by legal counsel for Plaintiff. All remaining aveiments, including any inference that the exhibit complies with Pennsylvania Rules of Civil Procedure governing discovery are specifically denied and strict proof thereof is demanded at trial. The averments of fact contained in paragraph four (4) of the Motion are denied as stated. It is admitted Exhibit "C" was received by legal counsel for Plaintiff. All remaining averments, including any inference that the exhibit complies with Pennsylvania Rules of Civil Procedure governing discovery are specifically denied and strict proof thereof is demanded at trial. The averments of fact contained in paragraph five (5) of the Motion are denied as stated. It is admitted Exhibit "A" was received by counsel for Plaintiff. All remaining averments, including any inference that the exhibit complies with Pennsylvania Rules of Civil Procedure governing discovery are specifically denied and strict proof thereof is demanded at trial. The averments of fact contained in paragraph six (6) of the Motion are denied as stated. All remaining averments, including any inference that the exhibit complies with Pennsylvania Rules of Civil Procedure governing discovery are specifically denied and strict proof thereof is demanded at trial. The ave~iiients of fact contained in paragraph seven (7) of the Motion are conclusions of law to which no response is required. To the extent that an answer is required, the averments are specifically denied and strict proof thereof is demanded at trial WHEREFORE, Plaintiff respectfully requests that this Court deny Defendants' motion to compel and order that any further discovery requests conform to the Pennsylvania Rules of Civil Procedure. NEW MATTER o The averments of fact contained in the Answer to the Motion to Compel are hereby incorporated by reference and are made part of this New Matter to the Motion of the Defendant. Defendants' requests in the paragraphs one (1) and two (2) of Exhibit "A" are in the nature of interrogatories. 10. Defendants' request in the remaining paragraphs of Exhibit "A" purport to be in the nature of requests for production of documents. 11. In the current form, Defendants' informal correspondence is not in the form required by the Pennsylvania Rules of Civil Procedure regarding discovery, Pa. R. C. P. 4001, et seq. 12. Furthermore, Defendants' requests in paragraph five (5) of Exhibit "A" fails to state with any particularity the items to be produced therefore failing to comply with Pa. R. C. P. 4009.11 (b). 13. In addition Defendants Carlisle Cold Storage, Inc., and A.C. Kuhn own the property in question and have a business relationship with the remaining Defendants and therefore have equal if not better access to the desired information than Plaintiff. WHEREFORE, Plaintiff respectfully requests that this Court deny Defendants' motion to compel and order that any further discovery requests conform to the Pennsylvania Rules of Civil Procedure. By: IRWIN, McKNIGHT & HUGHES Jahl~s 1~ Hug~s, Esq. Supreme' Court I.D. No. 58884 Douglas G. Miller, Esquire Supreme Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiffs, Power Gourmet Concepts, Inc VERIFICATION The foregoing Answer with New Matter to Motion to Compel on behalf of the Plaintiff, Power Gousmet Conepts, Inc., is based upon information which has been gathered by counsel for the Plaintiff in the preparation of this document. The statements made in this document are tree and correct to the best of the counsel's knowledge, infoi-mation and belief. The Plaintiff's verification cannot be obtained within the time allowed for filing the pleading due to Plaintiff's location out of state. The undersigned is therefore verifying on behalf of the Plaintiffaceording to 42 Pa.C.S.A. § 1024(c)(2). The undersigned understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: August 15, 2002 CERTIFICATE OF SERVICE I, Traci D. Smith, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Donald B. Hoyt, Esquire 17 East Market Street York, PA 17401 Counsel for Carlisle Cold Storage, Inc. and A.C. Kulm C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Counsel for Sun-Re Cheese Corp. Date: August 15, 2002 IRWIN, McKNIGHT & HUGHES CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a tree and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Donald B. Hoyt, Esquire 17 East Market Street York, PA 17401 Counsel for Carlisle Cold Storage, Inc. and A.C. Kuhn C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Counsel for Sun-Re Cheese Corp. Date: August 16, 2002 IRWIN, McKNIGHT & HUGHES Douglas 0' Miller, Esquire Supreme Court I.D. # 83776 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Attorney for Plaintiff Power Gourmet Concepts, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW POWER GOURMET CONCEPTS, INC., Plaintiff, VS. SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. and A.C. KUHN, Defendants No. 6398 2001 Civil JURY TI~L DEMANDED DEFENDANTS' CARLISLE COLD STORAGE, INC. AND A.C. KUHN'S ANSWER TO DEFENDANT SUN-RE CHEESE CORP.'S CROSSCLAIM 66. The allegations of this paragraph are denied. They state legal conclusions to which no response is required. 67. The allegations of this paragraph are denied. They state legal conclusions to which no response is required. 68. The allegations of this paragraph are denied. They state legal conclusions to which no response is required. WHEREFORE, Answering Defendants request the Court to dismiss the Crossclaim of Defendant Sun-Re Cheese Corporation. Respectfully submitted, BLAKEY, YOST, BUPP & RAUSCH, LLP ~D~onald B. H~-yt, ~re Counsel for Defendants, Carlisle Cold Storage, Inc. and .A.C. Kuhn 17 East Market Street York, PA 17401 (717) 845-3674 Supreme Ct. I.D. #18061 IN THE COURT OF COMMON PLEAS OF CUMBERLAND, COUNTY, PENNSYLVANIA CIVIL ACTION - LAW POWER GOURMET CONCEPTS, INC., Plaintiff, VS. SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. and A.C. KUHN, Defendants No. 6398 2001 Civil JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I am this day causing a copy of the fi)regoing document to be served on the following persons in the manner indicated: By First Class United States Mail on: Mark D. Schwartz, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 C. Kent Price, Esquire Thomas, Thomas & Haler 305 North Front Street Harrisburg, PA 17101 Sunbury Cold Storage 750 Edison Avenue Sunbury, pa 17801 Dated: BLAKEY, YOST, BUPP & RAUSCH, LLP By: ~~'--'" ~ yt, Cl' POWER GOURMET CONCEPTS, INC., Plaintiff SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. and A. C. KUHN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 6398 - 2001 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT SUN-RE CHEESE CORPORATION'S NEW MATTER AND NOW, this / qg'day of January, 2003, comes the Plaintiff, POWER GOURMET CONCEPTS, INC., by and through its attorneys, Irwin, McKnight & Hughes, and makes the following Answer to the New Matter and Crossclaims filed by Defendant, SUN-RE CHEESE CORPORATION, averring as follows: NEW MATTER 55. The averments contained in paragraph fifty-five (55) of the New Matter of Defendant Sun-Re Cheese Corporation are conclusions of law to which no response is required. To the extent that a response is required, the averments are :specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiff initially contacted officers, employees and/or agents of Defendant Sun-Re Cheese Corp.. to begin using the cold storage facility. Defendant Sun-Re Cheese Corp. provided invoices for storage costs to Plaintiff and Plaintiff's checks for said invoices were made payable to Defendant Sun-Re Cheese Corporation. 56. The averments contained in paragraph fifty-six (56) of the New Matter are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 57. The averments contained in paragraph fifty-seven (57) of the New Matter are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 58. The averments contained in paragraph fifty-eight (58) of the New Matter are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 59. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph fifty-nine (59) so they are therefore specifically denied and strict proof thereof' is demanded at trial. 60. The averments contained in paragraph sixty (60) are specifically denied and strict proof thereof is demanded at trial. 61. The averments contained in paragraph sixty-one (61) of the New Matter are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 62. The averments contained in paragraph sixty-two (62) of the New Matter are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 2 63. The averments contained in paragraph sixty-three (63) of the New Matter are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 64. The averments contained in paragraph sixty-four (64) of the New Matter are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 65. The averments contained in paragraph sixty-five (65) of the New Matter are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor and award Plaintiff the relief requested in its Complaint. CROSSCLAIMS DIRECTED TO DEFENDANTS SUN-BURY COLD STORAGE~ CARLISLE COLD STORAGE, INC. and A. C. KUHN IN ACCORDANCE WITH Pa.R.C.P. 2252(d) 66. - 68. The averments contained in paragraphs sixty-six (66) through sixty-eight (68) of the Crossclaim are directed to parties other than the Plaintiff, and therefore no answers are required thereto. 3 WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor and award Plaintiff the relief requested in its Complaint. Date: January / .~r ,2003 Respectfully Submitted, IRWIN, McKNIGHT & HUGHES Supreme Court I.D. No. 58882 Douglas G. Miller, Esquire Supreme Court I.D. No. 83776 60 West Pomfi'et Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorneys for Plaintiff, Power Gourmet Concepts, Inc. 4 VERIFICATION The foregoing document is based upon information which has been gathered by corporate counsel and myself in the preparation of this action. I have read the statements made in this document and they are tree and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. POWER GOURMET CONCEPTS, INC. Date: ~ / -~ ,2003 POWER GOURMET : IN THE COURT OF COMMON PLEAS OF CONCEPTS, INC., Plaintiff SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. and A. C. KUHN, Defendants : CUMBERLAND COUNTY, PENNSYLVANIA .. : NO. 6398-2001 CIVIL TERM : CIVIL ACTION ~ LAW _. _. : : PLAINTIFF'S MOTION TO COMPEL DEFENDANT SUN-RE CHEESE CORP. TO PRODUCE DOCUMENTS AND RESPOND TO INTERROGATORIES AND NOW this _~ Q.~day of June, 2003, comes the Plaintiff, POWER GOURMET CONCEPTS, INC., by and through its attorneys, Irwin, McKnight & Hughes, and hereby moves this Court to enter an Order pursuant to Pa.R.C.P. No. 4019, directing Defendant, SUN-RE CHEESE CORP. to answer Plaintiffs Requests to Produce Documents and respond to Plaintiff's Interrogatories or suffer sanctions, and in support thereof avers as follows: 1. The action was instituted by Writ of Summons filed on November 9, 2001, which was properly served upon the Defendant on December 28, 2001.. 2. On March 21, 2003, Plaintiffs sent their initial Requests for Production of Documents by Defendant and Interrogatories pursuant to Pa.R.C.P. 4009.1. A true and correct copy of Plaintiff's cover letter dated March 21, 2003 is attached as Exhibit "A." 3. Pursuant to Pa.R.C.P. No. 4009.12(a), Defendant's productions and objections, if any, were due on or about April 21, 2003. 4. Defendants did not provide any documents or ob. iections, or otherwise attempt to contact counsel for Plaintiffs to request an extension for the responses to discovery. 5. On May 14, 2003, a letter was sent to counsel for Defendant Sun-Re Cheese Corp. requesting a response to Plaintiffs discovery requests. A tree and correct copy of said letter is attached hereto as Exhibit "B" 6. In total, more than three (3) months have elapsed since the initial requests for production of documents were served upon the Defendant. 7. For the foregoing reasons, Plaintiff believes and avers that Defendant Sun-Re Cheese Corp. will not produce the documents requested or respond to the Interrogatories absent an Order of Court pursuant to Pa.R.C.P. No. 4019(a)(1). WHEREFORE, Plaintiffs request that the Court enter an order directing Defendant, SUN-RE CHEESE CORP., to furnish all documents identified in Plaintiff's Request for Production of Documents and respond to Plaintiff's Interrogatories and fully comply with said request within ten (i0) days or suffer appropriate sanctions to be imposed upon further application to the Court. Dated: June 2003 By: Respectfully Submitted, IRWIN, McKNIGHT & HUGHES Douglas _G~Mffier~ i~sq~re - Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiff 2 ~-XH [BIT ~'A" LAW OFFICES IRWIN McKNIGHT & HUGHES WEST POMFRET PROFESSIONAL BUILD/NG 60 WEST POMFRET STREET CARLISLE, PENNSYLVANIA 17013-3222 f717) 249-2353 FAX (7 ! 7) 249-6354 March 21, 2003 C. KENT PRICE, ESQUIRE THOMAS, THOMAS & HAFER, LLP P.O. BOX 999 HARRISBURG, PA 17108 POWER GOURMET CONCEPTS INC. v. SUNBURY COLD STORAGE~ ET AL. · CUMBERLAND COUNTY CCP NO.: 2001-6398 Dear Mr. Price: Enclosed for service upon you please find Plaintiffs Interrogatories and Request for Production of Documents. Thank you for your attention to this matter. Very truly yours, DGM:tds Enclosures CC: IRWIN, McKNIGHT & HUGHES Brad Sacks, Power Gourmet Concepts, Inc. (w/enc) KXH LBIT ~B"~ LAW OFFICES IRWIN McKNIGHT & HUGHES WEST POMERET PROFESSIONAL BUILDING 60 WEST POMERET STREET CARLISLE, PENNSYLVANIA 17015-3222 (717) 249-2353 FAX (717) 249-6354 £.MAIL: IMH£A WL~SUP£RNL:X COM May 14, 2003 C. KENT PRICE, ESQUIRE 305 NORTH FRONT STREET HARRISBURG, PA 17101 RE: PO%VER GOUR~MET CONCEPTS INC. v. SUNBURY COLD STORAGE~ ET AL. CUMBERLAND COUNTY CCP NO.: 2001-6398 Dear Kent: This letter is in follow up to the Interrogatories and Request for Production of Documents which were sent to you on March 21, 2003. I look forward to your responses within the next ten (10) days. Thank you for your attention to this matter. DGM:tds cc: Donald Hoyt, Esquire Brad Sacks, Power Gourmet Very truly :/ours, IRWIN, MCKNIGHT & HUGHES CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: C. KENT PRICE, ESQUIRE THOMAS, THOMAS & HAFER, LLP 305 NORTH FRONT STREET HARRISBURG, PA 17101 Date: June 27, 2003 IRWIN, MeKNIGHT & HUGHES Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfi'et Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Plaintiff POWER GOURMET CONCEPTS, 1NC., Plaintiff VS. SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., SUN-RE CHEESE CORP. and A.C. KUHN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COLE31TY, PENNSYLVANIA 01-6398 CIVIL CIVIL ACTION - LAW IN RE: PLAINTIFFS' MOTION TO COMPEL ORDER AND NOW, this I? r day of July, 2003, a role is issued on the defendant Sun- Re Cheese Corp. to show cause why the relief requested in the 'within motion to compel ought not to be granted. This role returnable twenty (20) days after service. BY THE COURT, A. ltess, . YhX!VA"IASNt',I[Jcl PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND cOUNTY let;tire caption must be stated in tull) POWER GOURMET CONCEPTS, INC., Please list the following case: (Check one) ( X ) for JURY trial at the next term of civil court. ~ for trial without a jury. ( ................................ ........................................... ..... CAPTION O~- CASE (check one) Assumpsit Trespass Trespass (Motor Vehicle) {Plaintiff) SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC. SUN-RE CHEESE CORP. and A.C. KUHN, (Defendant) VS. ( ) (other) The trial list will be called on Au~;ust 10, 2004 and ---' Trials commence on September t3~ 2004 Pretrials will be held on Au;~ust 18~ 2004 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe tO all counsel, pursuant to local Rule 214-1.) No. Civil 6398-2001 19 Indicate the attorney who will try case for the party who files this praecipe: Douglas G. Miller, Esquire Indicatetrialcounseltorotherpartiesifknown: Dmnald Hovt, Esquire~ attorn_eM for Carlisle Cold Storage, Inc. and A.C. Kuhn and C. Kent Price, Esquire, attorney for ~,n-Rm Cheese Corp. and Steve Fishman, additional attorney for A.C. Kuhn. This case is ready for trial. Print Name: n~u~C~er Attorney for: __P~ m~ntJ~f Power Gourmet Concepts, Inc. V Sunbury Cold Storage, Carlisle Cold Storage, Inc., Sun-Re Cheese Corp. and A.C. Kuhn IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6398 CIVIL TERM ORDER OF COURT AND NOW, August 10, 2004, counsel having failed to call the above case for trial, the case is stricken from the September 13, 2004 trial term. Counsel is directed to relist the case when ready. v/D/ouglas G. Miller, Esquire For the Plaintiff .~).. Kald Hoyt, Esquire ent Price, Esquire [~teve Fishman, Esquire For the Defendants Court Administrator By the Corm:, ld PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( Z ) for JURY trial at the next term of civil court. ) for trial without a jury. .................................................. -% ................................................................ ......... CAPTION OF CASE (enhre caption must be stated in full) (check one) POWER GOURMET CONCEPTS, INC., ~ ) Assumpsit ( ) Trespass ( ) Trespass (Motor Vehicte) ( ) (Plaintiff) (other) SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC. SUN-RE CHEESE CORP. and A.C. KUHN, (Defendant) va, The trial list will be called on September 28z 2004 and Trials cornmence on October 25, 2004 Pretrials will be held on October 6, 2004 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 2144.) No. Civil 6398-2001 Indicate the attorney who will try case for the party who files this praecip~: DouKlas G. Miller, Esquire 19____ Indicate trial Counsel for other parties if known: --DJAEa~ t~uire, attorn_ey_ for Carlisle Col~ StoraKe, Inc. and A.C. Kuhn; C. Kent Price, Esquire, altorney for Sun-Re Corp.; Steve Fishman, Esquire, additional attorney for A.C. Kuhn. Date: This case is ready for trial. August 20, 2004 Print Name:___JI)o~glas G. Miller Attorney for: ___P_laintiff POWER GOURMET CONCEPTS, INC.,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 6398 - 2001 CIVIL SUNBURY COLD STORAGE, CARLISLE COLD STORAGE, INC., CIVIL ACTION - LAW SUN-RE CHEESE CORP. and A. C. KUHN, Defendants : JURY TRIAL DEMANDED PRAECIPE TO SETTLE AND DISCONTINUE TO CURTIS R. LONG, PROTHONOTARY: Kindly mark the above-captioned matter as settled and discontinued. Respectfully submitted, IRWIN & McKNIGHT Date: February 8, 2005 BY:~ >9'- ~ Dougla G. Miller', &quire Supreme Court ill #83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiff CJ _dj C-.:} en