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HomeMy WebLinkAbout08-3395a COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS ` LezL NOTICE OF APPEAL t"12-108 FROM DISTRICT JUSTICE JUDGMENT JUDICIAL DISTRICT COMMON PLEAS No. 6 X33 Q S i?t u < ['-W'? NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Dis- trict Justice on the date and in the case mentioned below. NAME OF APPELLANT MAG. DIST. NO. OR NAME OF D.J. Allegro :,LC c/o William Jupitz 09-3-04 ADDRESS OF APPELLANT CITY STATE ZIP CODE 95 Eastga1CDrive Camp Hill PA 17011 21, 2003 Allegro Desiga s, -LC vs Leua Pagaino d/b/a x.,a Bella Moda CLAIM NO. SIGNATURE OF APPEL T OR HIS ATTORNEY OR AGENT CV YEAR CV-00008160-07 LT YEAR 7f 7- 2.3 Z- v Oo 7 (o This block will be signed ONLY when this notation is required under PA. If appellant was Claimant (see PA R.C.P.J.P. R.C.P.J.P. No. 1008B. This notice of Appeal, when received by the District Justice, will operate as No. 1001(6)) in action before district Justice, he A SUPERSEDEAS to the Judgment for possession in this case. MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. I na ure o ry or De" PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see PA R.C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon (Common Pleas No. Name of appellee(s) appellee(s), to file a complaint in this appeal within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or his attorney or agent RULE: To Name of appellee(s) appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED HuNU .r. f 0t- UPON PRAECIPE. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: , Year White - Prothonotary Copy Green - Court File Copy Yellow - Appelant's Copy Pink - Appellee Copy Gold - D. J. Copy Signature of Prothonotary or Deputy Proth. - 76 PROOF OF SERVICE OF 4911CE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby swear or affirm that I served a copy of the Notice of Appeal, Common Pleas No. , upon the District Justice designated therein on (date of service) , year , []by personal service []by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name , on , year , Elby personal service ? by (certified) (registered) mail, sender's receipt attached hereto. and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on , year , [:]by personal service E]by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF , YEAR Signature of AfRant Signadaa of ditW befte whom affidavit was made r C title Of official My commission expires on year ..r ? ? _ rU ?_s r??r } COMMONWEALTH OF PENNSYLVANIA NOTICE OF JUDGMENT/TRANSCRIPT COUNTY OF: OBE CIVIL CASE Mag. Dist. No : 09-3-04 MDJ Name: Hon. THOMAS A. PLACEY Address: 104 S SPORTING HILL RD MECHANICSBIIRG, PA Telephone: (717 ) 761-8230 17050 ATTORNEY FOR PLAINTIFF : PLAINTIFF: NAME and ADDRESS FALLEGRO DESIGNS 95 EASTGATE DRIVE C/O WILLIAM JUPITZ LCAMP HILL, PA 17011 J VS. DEFENDANT: NAME and ADDRESS FL-MA NA PAGANO D/B/A LA BELLA MODA 200 FAYETTE STREET CONSHOHOCKEN, PA 19428 L J THOMAS A. ARCHER PO BOX 5056 Docket No.: CV-0000860-07 HARRISBURG, PA 17110-0056 Date Filed: 12/14/07 THIS IS TO NOTIFY YOU THAT: Judgment: FOR PLAINTIFF (Date of Judgment). 5/21/08 ® Judgment was entered for: (Name) ALLEGRO DESIGNS ® Judgment was entered against: (Name) LENA PAGANO D/B/A LA BELLA MODA in the amount OT $ 300.1 Defendants are jointly and severally liable. F] Damages will be assessed on Date & Time 1-1 This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ 219.00 Judgment Costs $ 73.50 Interest on Judgment $ 7.67 Attorney Fees $ .00 Total $ 300.17 Post Judgment Credits $_ Post Judgment Costs $ Certified Judgment Total $_ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. Date Magisterial District Judge I certify that this is a true an -Correct copy 0 t e recordmof''tfit!" p ceedings containing the judgment. t ` Date J Magisterial District Judge My commission expires first Monday of January, 2010 SEAL AOPC 315-07 Archer & Archer, P.C. By: Thomas A. Archer, Esquire 2515 North Front Street PO Box 5056 Harrisburg, PA 17110-5056 717.233.8676 ALLEGRO DESIGNS, LLC, Plaintiff, V. LENA PAGANO, Individually and d/b/a LA BELLA MODA Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET No. 08-3395-Civil Term CIVIL ACTION -LAW JURY TRIAL DEMANDED NOTICE TO DEFEND TO: Lena Pagano, Individually and d/b/a La Bella Moda c/o Melissa Murphy Weber, Esquire 925 Harvest Drive Blue Bell, PA 19422 You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are 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 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, TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ON AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Dated: July 14, 2008 By: Thomas A. Archer, Esquire PA Atty. ID # 73293 2515 North Front Street P.O. Box 5056 Harrisburg, PA 17110 (717) 233-8676 Archer & Archer, P.C. By: Thomas A. Archer, Esquire 2515 North Front Street PO Box 5056 Harrisburg, PA 17110-5056 717.233.8676 ALLEGRO DESIGNS, LLC, Plaintiff, V. LENA PAGANO, Individually and d/b/a LA BELLA MODA Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET No. 08-3395-Civil Term CIVIL ACTION -LAW JURY TRIAL DEMANDED COMPLAINT Plaintiff, Allegro Designs, LLC, by and through it's undersigned counsel, Archer & Archer, P.C., files the following Complaint against Defendant, Lena Pagano, Individually and d/b/a La Bella Moda, and in support thereof avers as follows: 1. Plaintiff, Allegro Designs, LLC ("Plaintiff'), is a Pennsylvania Limited Liability Company with a principal place of business located at 94 Eastgate Drive, Camp Hill, Pennsylvania 17110. 2. Defendant, Lena Pagano, individually and d/b/a La Bella Moda ("Defendant"), is an adult individual with a place of business located at 200 Fayette Street, Conshohocken, Pennsylvania 19428. 3. At all relevant times, Plaintiff is in the business of manufacturing and wholesale distribution of children's formal wear and dresses. 4. Through information and belief, Defendant, at all relevant times, is engaged in the retail sale of formal wear and dresses. 5. Plaintiff and Defendant had an ongoing business relationship whereby Plaintiff distributed dresses for sale that were purchased by the Defendant. 6. The performance of all services with respect to the transactions between the parties was in Cumberland County, Pennsylvania at Plaintiff's place of business. 7. At Defendants request, Plaintiff processed orders for merchandise more fully described in Plaintiff's invoice numbers 12301, 12511 and 12604, attached hereto and incorporated herein as Exhibit "A." 8. The principal amount due for the above-referenced invoices if $897.00 for merchandise, shipping and handling charges. 9. Defendants failed to accept delivery of Plaintiff's merchandise upon delivery, causing the merchandise to be returned to the Plaintiff. 10. Despite Plaintiff's efforts, Plaintiff has been unable to resell the custom items that were ordered by the Defendants. 11. Despite Plaintiff's repeated demands for payment, Defendant refuses to pay Defendant the sums due and owing. FIRST COUNT - BREACH OF CONTRACT 12. The allegations of the proceeding paragraphs 1-11 are incorporated herein by reference as though set forth herein at length. 13. Defendant's request for goods provided herein and Plaintiff's agreement to provide those goods for valuable consideration constitute a valid and binding contract between the parties. 14. Despite Plaintiff's complete performance under the contract between the parties, Defendant has breached the contract by failing to tender payment thereon. 2 15. By reason of the facts aforesaid, Defendant has materially breached its obligations under the contract between the parties, all to the damage of the Plaintiff in the amount of $897.00. WHEREFORE, Plaintiff demands judgment against the Defendants: a. For compensatory damages in the amount of $897.00; and b. For any other relief deemed appropriate and just by the Court or to which the Plaintiff is entitled as a matter of law. SECOND COUNT - QUANTUM MERUIT 16. The allegations of the proceeding paragraphs 1 - 15 are incorporated herein by reference as though set forth at length. 17. Defendant, as stated herein, requested the custom goods from the Plaintiff. 18. The Plaintiff fully filled the orders requested by the Defendant, who knew Plaintiff would expect payment therefore. 19. The market value of the goods and services, including shipping, ordered by Defendant is $897.00. 20. It would be unjust for Plaintiff not to be paid for the value of its goods alleged herein. WHEREFORE, Plaintiff demands judgment against the Defendants: a. For compensatory damages in the amount of $897.00; and b. For any other relief deemed appropriate and just by the Court or to which the Plaintiff is entitled as a matter of law. 3 THIRD COUNT - ACCOUNT STATED 21. The allegations of the proceeding paragraphs 1 - 20 are incorporated herein by reference as though set forth herein at length. 22. Plaintiff maintains an account for goods and services provided to Defendant on account. 23. The outstanding balance for charges incurred by Defendant is $897.00. 24. Defendant has failed to make payment on account to Plaintiff, despite Plaintiff's repeated requests for payment. WHEREFORE, Plaintiff demands judgment against, the Defendants: a. For compensatory damages in the amount of $897.00; and b. any other relief deemed appropriate and just by the Court or to which the Plaintiff is entitled as a matter of law. Dated: July 14, 2008 Respectfully Submitted, Archer & Archer, P.C. By: '/-?Z?? Thomas A. Archer, Esquire PA Atty. ID # 73293 2515 North Front Street P.O. Box 5056 Harrisburg, PA 17110 (717) 233-8676 Attorney for Plaintiff 4 Exhibit "A" P-1 P.O. BOX 734 Camp Hill PA 17011 La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Date 9/17/2007 Invoice # 12301 La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Phone: FAX: 610-825-6385 610-825-7945 Saies Rep Ship Date 9/17/2007 P.O. # 4545 Due Date 9!17/2007 KE Terms cod Item s- Qty Price Amount 2006 black with black size 12 89.00 89.00 COD COD 9.00 9.00 Shipping and ... Shipping and Handling 13.00 13.00 Interest 17.76 17.76 info@ladybugcollection.com Phone # (717) 761-2344 www.ladybugcollection.com FAX # (717) 761-2343 Total $128.76 Payments/Credits $0.00 Balance Due $128.76 P- Z P.O. BOX 734 Camp Hill PA 17011 La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Date 10117/2007 Invoice # 12511 La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Phone: FAX. 610-825-6385 610-825-7945 Sales Rep Ship Date 1011712007 P.O. # 4588 c ? ? Due Date 10/17/2007 Terms o Item Desc ription Qty Price A mount PO 4588 2019 E. Red Size 14 89.00 89.00 Fabric 1 yard of sage shantung 15.00 15.00 COD COD 9.00 9.00 Shipping and ... Shipping and Handling 13.00 13.00 Refusal Refusal Fee 50.00 50.00 COD COD 9.00 9.00 Shipping and ... Shipping and Handling 13.00 13.00 Storage Fee 30.00 30.00 Interest 36.48 36.48 Total $264.48 info@ladybugcollection.com Phone # (717) 761-2344 Payments/Credits $0.00 www.ladybugeollection.com FAX 4 (717) 761-2343 Balance Due $264.48 P.O. BOX 734 Camp Hill PA 17011 La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Phone: 610-825-6385 P.O. # 4600 Terms cod FAX: 610-825-7945 Sales Rep KE 19-3 Date 11/2/2007 Invoice # 12604 . . La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Ship Date 11/2/2007 Due Date 11/2/2007 1059 Champagne with E. Red Trim Size 1 99.00 99.00 1059 Champagne with E. Red Trim Size 2 99.00 99.00 1059 Champagne with E. Red Trim Size 4 99.00 99.00 1059 E. Red with Ivory Trim Size 1 99.00 99.00 1059 E. Red with Ivory Trim Size 2 99.00 99.00 1059 E. Red with Ivory Trim Size 4 99.00 99.00 COD COD 9.00 9.00 Shipping and ... Shipping and Handling 13.00 13.00 Refusal Refusal Fee 50.00 50.00 Storage Fee 30.00 30.00 COD COD 9.00 9.00 Shipping and ... Shipping and Handling 13.00 13.00 Interest 114.88 114.88 info@ladybugcollection.com www.ladybugcollection.com Phone # (717) 761-2344 FAX # (717) 761-2343 Total Payments/Credits Balance Due $832.88 $0.00 $832.88 CERTIFICATE OF SERVICE I, Jessica R. Porter, Paralegal, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the person(s) stated below, via facsimile 215-977-1099 and U.S. First Class Mail, addressed as follows: Melissa Murphy Weber, Esquire Elliott Greenleaf & Siedzikowski, P.C. 925 Harvest Drive Blue Bell, PA 19422 Date: July 14, 2008 Cam'` - Jessica R. Porter, Paralegal un F To Plaintiffs: You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days of service hereof or a judgment may be entered against you. By: Melissa Murphy Weber Counsel for Defendant ELLIOTT GREENLEAF & SIEDZIKOWSKI, P.C. BY: Melissa M. Weber, Esquire I.D. No. 76959 Union Meeting Corporate Center V 925 Harvest Drive Blue Bell, PA 19422 (215) 977-1000 Attorney for Defendant Lena Pagano d/b/a La Bella Moda ALLEGRO DESIGNS, LLC, Plaintiff/Appellant, V. LENA PAGANO d/b/a/ LA BELLA MODA Defendant/Appellee. COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA NO. 08-3395 CIVIL ACTION-LAW COMPULSORYARBITRATION PURSUANT TO LOCAL RULE 1301-01 [AMOUNT IN CONTROVERSY IS LESS THAN $35, 0001 DEFENDANT LENA PAGANO DB/A LA BELLA MODA'S PRELIMINARY OBJECTIONS TO PLAINTIFF ALLEGRO DESIGNS, LLC'S COMPLAINT Defendant Lena Pagano d/b/a La Bella Moda ("La Bella Moda") by and through its undersigned counsel, pursuant to Pa.R.C.P. 1028(a), hereby preliminarily objects to the Complaint filed by Plaintiff Allegro Designs, ("Allegro'), a copy of which is attached hereto as Exhibit "A." In support hereof, La Bella Moda aver as follows: 1. On June 2, 2008, Allegro filed a Notice of Appeal from District Justice Judgment in Cumberland County Court of Common Pleas against La Bella Moda. 2. On July 3, 2008, La Bella Moda served Allegro with a Notice of Praecipe to Enter Judgment of Non Pros thereby requiring Allegro to filed a Complaint on or before July 14, 2008. 3. On July 15, 2008, Allegro filed a Complaint alleging, Breach of Contract (Count I); Quantum Meruit (Count II); and Account Stated (Count III). See Exhibit "A." 4. Thereafter, the parties agreed to extend the deadline for La Bella Moda to file a responsive pleading to August 22, 2008. 5. As set forth below, La Bella Moda preliminarily objects to Allegro's Complaint. I. Preliminary Objection to Plaintiffs' Complaint Pursuant To Pa.R.C.P. 1028(a)(5), Plaintiff lacks the capacity to bring suit 6. La Bella Moda incorporates by reference the above averments as if fully set forth herein. 7. La Bella Moda preliminarily objects to Allegro's Complaint as Allegro Designs, LLC is not a Pennsylvania Limited Liability Company registered with the Pennsylvania Department of State. See Search result finding no records with Pennsylvania Department of State, attached hereto as Exhibit "B." 8. A Pennsylvania Limited Liability Company must be organized and existing under governing Pennsylvania law. 15 Pa. C.S.A. § 8903. 9. The "Certificate of Organization," the formal legal document that brings into existence the limited liability company, must be filed with the Department of State. 15 Pa. C.S.A. § 8914(a). 3 10. A Pennsylvania Limited Liability Company is organized and in existence upon the filing of the Certificate of Organization with the Department of State. 15 Pa. C.S.A. § 8914(b). 11. An action brought by a limited liability company must be brought in that company's name. 15 Pa. C.S.A. § 8991; Pa. R. Civ. P. 2177. 12. Because Allegro has not duly filed its Certificate of Organization with the Department of State, it does not exist and lacks the capacity to bring an action in any Pennsylvania court. See Exhibit "B." WHEREFORE, Defendant respectfully requests this Court sustain this preliminary objection, dismiss Plaintiff's Complaint with prejudice, award Defendant attorneys' fees incurred to defend this improperly brought action, and grant such other relief in Defendant's favor as the Court deems just and proper. H. Preliminary Objection to Plaintiffs Breach of Contract Claim Pursuant To Pa.R.C.P. (a)(4), Leeal Insufficiency Of A Pleading (Demurrer) 13. La Bella Moda incorporates by reference the above averments as if fully set forth herein. 14. To assert a breach of contract claim, Allegro must plead the following elements: a. The parties reached a mutual understanding whereby the terms of the agreement were clear; b. They exchanged consideration; and c. Plaintiff incurred damages. 15. Allegro fails to allege with any basis that there was a mutual understanding with sufficiently clear terms. 4 16. Allegro fails to plead any facts regarding the terms of the purported agreement and pleads only the conclusory averment that Allegro completely performed pursuant to the "contract" because is "processed the orders." See Exhibit "A" at ¶¶ 7, 13. 17. In violation of Pa.R.Civ.P. 1019(h) and (i), Allegro fails to attach any "contract," fails to identify the terms of the purported "contract," and fails to attach any "orders" as referenced in the above paragraph. 18. To the contrary, Allegro merely attaches invoices generated after the fact for goods La Bella Moda did not receive. See Exhibit "A" and the exhibits attached thereto. 19. Allegro fails to plead any consideration was exchanged between the parties. 20. Allegro fails to plead it was damaged by any purported actions of La Bella Moda. To the contrary, Allegro admits La Bella Moda did not receive the goods reflected in the invoices attached to its Complaint. See Exhibit "A" at ¶ 9. WHEREFORE, Defendant respectfully requests this Court sustain this preliminary objection, dismiss Count I of Plaintiff's Complaint with prejudice, and grant such other relief in Defendant's favor as the Court deems just and proper. M. Preliminary objection to Plaintiffs Quantum Meruit Claim Pursuant To Pa.R.C.P. (a)(4), Legal Insufficiency Of A Pleading (Demurrer) 21. La Bella Moda incorporates by reference the above averments as if fully set forth herein. 22. To assert of quantum meruit claim, Allegro must plead the following elements: a. benefit was conferred on defendant by plaintiff, b. appreciation of such benefits by defendant; c. acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. 5 23. Allegro fails to plead it conferred any benefit on La Bella Moda, admitting instead that La Bella Moda rejected Allegro's goods. See Exhibit "A" at ¶ 9. 24. Allegro fails to plead the necessary facts to establish its conclusory averment that it "fully filled the orders" requested by La Bella Moda. See Exhibit "A" at 118. 25. Allegro's admission that La Bella Moda rejected Allegro's goods precludes Allegro from establishing the La Bella Moda appreciated the goods and/or retained the goods such that it owes Allegro for their value. WHEREFORE, Defendant respectfully requests this Court sustain this preliminary objection, dismiss Count II of Plaintiffs Complaint with prejudice, and grant such other relief in Defendant's favor as the Court deems just and proper. IV. Preliminary Objection to Plaintiffs Account Stated Claim Pursuant To Pa.RC.P. (a)(4), Legal Insufficiency Of A Pleading-(Demurrer). 26. La Bella Moda incorporates by reference the above averments as if fully set forth herein. 27. To assert a claim for Account Stated, Allegro must plead the following elements: a. There had been a running account; b. A balance remains due; and c. Defendant has assented to the account. 28. The most important element of a claim for Account Stated is the parties' agreement to the accuracy and correctness of the account. 29. Allegro fails to plead when any demands were made on La Bella Moda for payment prior to it taking legal', action and whether La Bella Moda responded. 6 30. Allegro fails to plead that La Bella Moda agreed to the amounts and/or items reflected in the invoices attached to its Complaint; 31. Allegro admits that La Bella Moda never received the goods as reflected in the invoices attached to its Complaint and further admits that La Bella Moda has not paid any monies towards the invoices for which Allegro claims comprise of the "account." WHEREFORE, Defendant respectfully requests this Court sustain this preliminary objection, dismiss Count III of Plaintiff's Complaint with prejudice, and grant such other relief in Defendant's favor as the Court deems just and proper. OF COUNSEL: ELLIOTT GREENLEAF & SIEDZIKOWSKI, P.C. DATED: August 21, 2008 MELISSA M. WEBER Union Meeting Corporate Center V 925 Harvest Drive, Suite 300 Blue Bell, PA 19422 (215) 977-1000 (215) 977-1099 FAX Counsel for Defendant 7 CERTIFICATE OF SERVICE I, Melissa M. Weber, Esquire, hereby certify that on this date, I caused a true and correct copy of the foregoing Defendant Lena Pagano DB/A La Bella Moda's Preliminary Objections To Plaintiff Allegro Designs, LLC's Complaint to be served upon the following via First Class Mail. Thomas A. Archer, Esquire Law Offices of Archer and Archer 2515 North Front Street P.O. Box 5056 Harrisburg, PA 17110 - 0056 Melissa Murphy Weber August 21, 2008 Archer & Archer, P.C. By: Thomas A. Archer, Esquire 2515 North Front Street PO Box 5056 Harrisburg, PA 17110-5056 717.233.8676 ALLEGRO DESIGNS, LLC, Plaintiff, V. LENA PAGANO, Individually and d/b/a LA BELLA MODA Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET No. 08-3395-Civil Term CIVIL, ACTION -LAW JURY TRIAL DEMANDED NOTICE TO DEFEND TO: Lena Pagano, Individually and d/b/a La Bella Moda c/o Melissa Murphy Weber, Esquire 925 Harvest Drive Blue Bell, PA 19422 You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are 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 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, TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ON AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Dated: July 14, 2008 By: 24-7 Thomas A. Archer, Esquire PA Atty. ID # 73293 2515 North Front Street P.O. Box 5056 Harrisburg, PA 17110 (717) 233-8676 f r Archer & Archer, P.C. By: Thomas A. Archer, Esquire 2515 North Front Street PO Box 5056 Harrisburg, PA 17110-5056 717.233.8676 ALLEGRO DESIGNS, LLC, Plaintiff, V. LENA PAGANO, Individually and d/b/a LA BELLA MODA Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET No. 08-3395-Civil Term : CIVIL ACTION -LAW : JURY TRIAL DEMANDED COMPLAINT Plaintiff, Allegro Designs, LLC, by and through it's undersigned counsel, Archer & Archer, P.C., files the following Complaint against Defendant, Lena Pagano, Individually and d/b/a La Bella Moda, and in support thereof avers as follows: 1. Plaintiff, Allegro Designs, LLC ("Plaintiff '), is a Pennsylvania Limited Liability Company with a principal place of business located at 94 Eastgate Drive, Camp Hill, Pennsylvania 17110. 2. Defendant, Lena Pagano, individually and d/b/a La Bella Moda ("Defendant"), is an adult individual with a place of business located at 200 Fayette Street, Conshohocken, Pennsylvania 19428. 3. At all relevant times, Plaintiff is in the business of manufacturing and wholesale distribution of children's formal wear and dresses. 4. Through information and belief, Defendant, at all relevant times, is engaged in the retail sale of formal wear and dresses. 1 S. Plaintiff and Defendant had an ongoing business relationship whereby Plaintiff distributed dresses for sale that were purchased by the Defendant. 6. The performance of all services with respect to the transactions between the parties was in Cumberland County, Pennsylvania at Plaintiffs place of business. 7. At Defendants request, Plaintiff processed orders for merchandise more fully described in Plaintiff s invoice numbers 12301, 12511 and 12604, attached hereto and incorporated herein as Exhibit "A." 8. The principal amount due for the above-referenced invoices if $897.00 for merchandise, shipping and handling charges. 9. Defendants failed to accept delivery of Plaintiff s merchandise upon j delivery, causing the merchandise to be returned to the Plaintiff. 10. Despite Plaintiff's efforts, Plaintiff has been unable to resell the custom items that were ordered by the Defendants. 11. Despite Plaintiff s repeated demands for payment, Defendant refuses to pay Defendant the sums due and owing. FIRST COUNT - BREACH OF CONTRACT 12. The allegations of the proceeding paragraphs 1-11 are incorporated herein by reference as though set forth herein at length. 13. Defendant's request for goods provided herein and Plaintiffs agreement to provide those goods for valuable consideration constitute a valid and binding contract between the parties. 14. Despite Plaintiff's complete performance under the contract between the parties, Defendant has breached the contract by failing to tender payment thereon. 2 15. By reason of the facts aforesaid, Defendant has materially breached its obligations under the contract between the parties, all to the damage of the Plaintiff in the amount of $897.00. WHEREFORE, Plaintiff demands judgment against the Defendants: a. For compensatory damages in the amount of $897.00; and b. For any other relief deemed appropriate and just by the Court or to which the Plaintiff is entitled as a matter of law. SECOND COUNT - QUANTUM MERUIT 16. The allegations of the proceeding paragraphs 1-15 are incorporated herein by reference as though set forth at length. 17. Defendant, as stated herein, requested the custom goods from the Plaintiff. 18. The Plaintiff My filled the orders requested by the Defendant, who knew Plaintiff would expect payment therefore. 19. The market value of the goods and services, including shipping, ordered by Defendant is $897.00. 20. It would be unjust for Plaintiff not to be paid for the value of its goods alleged herein. WHEREFORE, Plaintiff demands judgment against the Defendants: a. For compensatory damages in the amount of $897.00; and b. For any other relief deemed appropriate and just by the Court or to which the Plaintiff is entitled as a matter of law. 3 L THIRD COUNT - ACCOUNT STATED 21. The allegations of the proceeding paragraphs 1 - 20'are incorporated herein by reference as though set forth herein at length. i i 22. Plaintiff maintains an account for goods and services provided to Defendant on account. 23. The outstanding balance for charges incurred by Defendant is $897.00. 24. Defendant has failed to make payment on account to Plaintiff, despite Plaintiffs repeated requests for payment. WHEREFORE, Plaintiff demands judgment against the Defendants: i a. For compensatory damages in the amount of $897.00; and b. any other relief deemed appropriate and just by the Court or to which the Plaintiff is entitled as a matter of law. Respectfully Submitted, Archer & Archer, P.C. Dated: July 14, 2008 By Thomas A. Archer, Esquire PA Atty. ID # 73293 2515 North Front Street P.O. Box 5056 Harrisburg, PA 17110 (717) 233-8676 Attorney for Plaintiff 4 Exhibit "A" P.O. BOX 734 Camp Hill PA 17011 La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Phone: FAX: 610-825-6385 610-825-7945 P.O. # 4545 Terms cod "LUDO J DOM wRn DIOGR size IL i i COD :COD Shipping and ... Shipping and Handling Interest i ? I 1 1 f I info@ladybugcollection.eom Phone # (717) 761-2344 www.ladybuge,oUec-fion.com FAX # (717) 761-2343 R,..ra.lid Date 9117/2007 Invoice # 12301 La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Sales Rep Ship Date 9117/2007 Due Date 9117!2007 EE] 1 9.00 13.00 17.76 f 1 1 9.00 13.00 17.76 Total $128.76 Payments/Credits $0.00 Balance Due .-$128.76 P.O. BOX 734 Camp Hill PA 17011 w La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Phone: FAX: 610-825-6385 610-825-7945 P.O. # 4588 Terms PO 4588 2019 E. Red Size 14 Fabric 1 yard of sage shantung COD COD Shipping and ... Shipping and Handling Refusal Refusal Fee COD COD Shipping and ... ! Shipping and Handling Storage Fee Interest 00. 2 Date 10/17/2007 Invoice # 12511 La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Sales Rep Ship Date 10/17/2007 L KE Due Date 10/17/2007 info@ladybugcollection.com Phone # (717) 761-2344 www.ladybugcollection.com FAX # (717) 761-2343 89.00 89.00 15.00; 15.00 , 9.W 9.00 13.00; 13.00 50.00 ; 50.00 9.00' 9.00 13.00; 13.00 30.00 30.00 36.48. 36.48 a Total $264.48 Payments/Credits $0.00 Balance Due - - $264.48 ^ r3 P.O. BOX 734 Camp Hill PA 17011 La Bella Moda '200 Fayette Street ' Conshokocken, PA 19428-1820 Phone: FAX: 610-825-6385 610-825-7945 Sales Rep P.O.# 4600 Terms cod ?I i 1059 I Champagne with E. Red Trim Size 1 1059 Champagne with E. Red Trim Size 2 1069 ! Champagne with E. Red Trim Size 4 1059 E. Red with Ivory Trim Size 1 i 1059 E. Red with Ivory Trim Size 2 1059 E. Red with Ivory Trim Size 4 ;COD ,i COD i Shipping and ... Shipping and Handling Refusal 1 Refusal Fee i Storage Fee COD COD Shipping and ... ' Shipping and Handling Interest Date 11/2/2007 Invoice # 12604 La Bella Mods 200 Fayette Street Conshokocken, PA 19428-1820 L.... _-_J Ship Date 11/2/2007 Due Date 11/2/2007 99.00 99.00 99.00 i 99.00 99.00 99.00; 9.00 13.00 50.00, 30.00 i 9.00 13.001 114.88 99.00 99.00 99.00 i 99.00 99.00 99.00 i i 9.00 13.00 50.00 30.00 I 9.00 i 13.00 I 114.88 E Total $832.88 info@ladybugcollection.com Phone # (717) 761-2344 Payments/Credits $0.00 www.ladybugcollection.com FAX # (717) 761-2343 Balance Due $832,8$ CERTIFICATE OF SERVICE I, Jessica R. Porter, Paralegal, hereby cer* that on the date set forth below I served a true and correct copy of the foregoing document upon the person(s) stated below, via facsimile 215-977-1099 and U.S. First Class Mail, addressed as follows: Melissa Murphy Weber, Esquire Elliott Greenleaf & Siedzikowski, P.C. 925 Harvest Drive Blue Bell, PA 19422 Date: July 14, 2008 Jessica R. Porter, Paralegal kv Corporations System Search Results Page 1 of 1 Corporations Online Services I Corporations I Forms Contact Corporations I Business Services Search Search Type: All words Search Criteria: Allegro Designs By Business Name By Business Entity ID Search Date: 8/2012008 Search Time: 12:49 Verify Verify Certification No Records were found for the search criteria 'Allegro Designs' on 8/20/2008 Online Orders 12:49:02 PM Register for Online Orders Order Good Standing Order Certified Documents Order Business Dist My Images Search for Images Home I Site Map I Site Feedback I View as Text Only I Employment 10on.vee/1 U 4 Home Copyright ® 2002 Pennsylvania Department of State. All Rights Reserved. Commonwealth of PA Privacy Statement http://www. corporations. state.pa.us/corplsoskbIS earchResults. asp?FonnName=CorpName... 8/20/2008 .. PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: ALLEGRO DESIGNS, LLC, COURT OF COMMON PLEAS, Plaintiff/Appellant, CUMBERLAND COUNTY, PA V. N0. 08-3395 LENA PAGANO d/b/a/ LA BELLA MODA CIVIL ACTION-LAW Defendant/Appellee.: COMPULSORYARBITRATION PURSUANT TO LOCAL RULE 1301-01 [AMOUNT IN CONTR 0 VERS Y IS LESS THAN $35, 000] 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendants' demurrer to complaint, etc.): Defendant Lena Pagano d/b/a La Bella Moda's Prelimin Objections to Plaintiff Allegro Designs, LLC's Complaint 2. Identify all counsel who will argue cases: (a) for plaintiff: Thomas A. Archer, Esquire Law Offices of Archer and Archer 2515 North Front Street, P.O. Box 5056 Harrisburg, PA 17110 - 0056 (b) for defendant: Melissa M. Weber, Esquire Elliott Greenleaf & Siedzikowski, P.C. Union Meeting Corporate Center V, 925 Harvest Drive, Suite 300 Blue Bell, PA 19422 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 22, 2008 ' AA I Il -W- Melissa M. Weber Date: Attorney for Defendant INSTRUCTIONS: 1. Two copies of all briefs must be filed with the Court Administrator (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. ra C?3 N N c, Archer & Archer, P.C. By: Thomas A. Archer, Esquire 2515 North Front Street PO Box 5056 Harrisburg, PA 17110-5056 717.233.8676 ALLEGRO DESIGNS, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. DOCKET No. 08-3395-Civil Term LENA PAGANO, Individually and d/b/a LA BELLA MODA CIVIL ACTION -LAW JURY TRIAL DEMANDED Defendants NOTICE TO PLEAD TO: Lena Pagano, Individually and d/b/a La Bella Moda c/o Melissa Murphy Weber, Esquire 925 Harvest Drive Blue Bell, PA 19422 You are hereby notified to file a written response to the enclosed Amended Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Dated: September 10, 2008 By: Thomas A. Archer, Esquire PA Atty. ID # 73293 2515 North Front Street P.O. Box 5056 Harrisburg, PA 17110 (717) 233-8676 Archer & Archer, P.C. By: Thomas A. Archer, Esquire 2515 North Front Street PO Box 5056 Harrisburg, PA 17110-5056 717.233.8676 ALLEGRO DESIGNS, LLC, : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. DOCKET No. 08-3395-Civil Term LENA PAGANO, Individually and : d/b/a LA BELLA MODA CIVIL ACTION -LAW JURY TRIAL DEMANDED Defendants AMENDED COMPLAINT Plaintiff, Allegro Designs, LLC, by and through it's undersigned counsel, Archer & Archer, P.C., files the following Complaint against Defendant, Lena Pagano, Individually and d/b/a La Bella Moda, and in support thereof avers as follows: 1. Plaintiff, Allegro Designs, LLC ("Plaintiff'), is a Maryland Limited Liability Company with a registered office and principal place of business located at 94 Eastgate Drive, Camp Hill, Pennsylvania 17110. 2. Defendant, Lena Pagano, individually and d/b/a La Bella Moda ("Defendant"), is an adult individual with a place of business located at 200 Fayette Street, Conshohocken, Pennsylvania 19428. 3. At all relevant times, Plaintiff is in the business of manufacturing and wholesale distribution of children's formal wear and dresses. 4. Through information and belief, Defendant, at all relevant times, is engaged in the retail sale of formal wear and dresses. 1 Plaintiff and Defendant had an ongoing business relationship whereby Plaintiff distributed dresses for sale that were purchased by the Defendant at Defendant's request. 6. The parties had established a repeated course of performance whereby Defendant would order specially-manufactured goods from Plaintiff through faxed purchase orders and/or verbal requests for goods. Plaintiff would then manufacture the requested merchandise and deliver the goods to Defendant's place of business. 7. In furtherance of this established and repeated course of performance, Plaintiff would receive payment from Defendant for merchandise by invoice or cash on delivery. All orders, including those alleged herein, were placed at Plaintiff's place of business in Cumberland County, Pennsylvania and the performance of all services and processing of orders with respect to the transactions between the parties took place at Plaintiff s place of business. 9. Between September 1, 2007 and November 6, 2007, at Defendant's request, Plaintiff processed orders for custom specially-manufactured merchandise more fully described in Plaintiff s invoice numbers 12301, 12511 and 12604, attached hereto and incorporated herein as Exhibit "A." 10. Defendant's request for goods included a written purchase order to Plaintiff for the goods described in invoice number 12604, attached hereto and incorporated herein as Exhibit "B." 11. The principal amount due on the above-referenced invoices is $787.00 for custom specially-manufactured goods ordered by the Defendant. 2 12. Either as a result of being informed by the Plaintiff and/or the course of dealing between the parties, Defendant knew or should have known that Plaintiff would charge Defendant this sum for the requested merchandise. 13. In addition to the cost of the merchandise, Plaintiff incurred reasonable and customary shipping and handling costs in the amount of $66.00 that Defendant knew and reasonably expected would be charged to the Defendant, either as a result of being informed by the Plaintiff and/or the course of dealing between the parties. 14. The shipping and handling costs were included in the invoices submitted to Defendant. 15. Plaintiff fully performed its obligations to Defendant by manufacturing the requested merchandise and delivering the merchandise to Defendant. 16. Defendant acknowledged receipt of the goods described in invoice number 12301, as indicated by the delivery receipt attached hereto and incorporated herein as Exhibit "C." 17. Despite having requested and accepted delivery of the goods described in invoice number 12301, Defendant has failed to remit payment therefore. 18. Defendant refused to accept delivery of Plaintiff's merchandise described in invoices 12511 and 12604 upon delivery, without any reasonable justification therefore, causing the merchandise to be returned to the Plaintiff. 19. As a result of Defendant's refusal to accept delivery of the merchandise, Plaintiff incurred additional shipping and handling costs in the amount of $44.00. 20. As a result of Defendant's refusal to accept delivery of the merchandise, Plaintiff incurred reasonable and customary storage costs and refusal fees costs in the amount of $160.00 that Defendant knew and reasonably expected would be charged to the Defendant, either as a result of being informed by the Plaintiff and/or the course of dealing between the parties. 21. The specially-manufactured merchandise ordered by the Defendants is not suitable for sale to others in the normal course of Plaintiff's business. 22. Despite Plaintiff's efforts to do so, Plaintiff has been unable to resell the custom specially-manufactured merchandise ordered by the Defendants. 23. Despite Plaintiff s repeated demands for payment, including but not limited to submission of invoices, Defendant refuses to pay Plaintiff the sums due and owing. FIRST COUNT - BREACH OF CONTRACT 24. The allegations of the proceeding paragraphs 1-23 are incorporated herein by reference as though set forth herein at length. 25. The parties to this action are "merchants" under Article 2 of Pennsylvania's Uniform Commercial Code. 26. Defendant's request for goods as more fully described herein and Plaintiff's agreement to provide those goods for valuable consideration constitute a valid and binding contract between the parties. 27. Despite Plaintiff's complete performance under the contract between the parties, Defendant has breached the contract by failing to tender payment thereon. 28. By reason of the facts aforesaid, Defendant has materially breached its obligations under the contract between the parties, all to the damage of the Plaintiff, in the amount of $1,057.00. 4 WHEREFORE, Plaintiff demands judgment against the Defendant for compensatory damages in the amount of $1,057.00, costs of suit, reasonable attorney's fees and any other relief deemed appropriate and just by the Court or to which the Plaintiff is entitled as a matter of law. SECOND COUNT - PROMISSORY ESTOPPEL (pleaded in alternative) 29. The allegations of the proceeding paragraphs 1 - 28 are incorporated herein by reference as though set forth at length. 30. Plaintiff reasonably relied upon Defendant's request for specially- manufactured merchandise from Plaintiff and Defendant's express or implied consent to pay therefore. 31. Plaintiff has been harmed as a result of incurring the costs of manufacturing, delivering and storing the custom merchandise without receiving payment from the Defendant and being unable to sell the specially ordered goods. WHEREFORE, Plaintiff alternatively demands judgment against the Defendants for compensatory damages in the amount of $1,057.00, costs of suit, reasonable attorney's fees and any other relief deemed appropriate and just by the Court or to which the Plaintiff is entitled as a matter of law. THIRD COUNT - QUANTUM MERUIT (pleaded in alternative) 32. The allegations of the proceeding paragraphs 1 - 31 are incorporated herein by reference as though set forth at length. 33. Defendant, as stated herein, requested custom and specially-manufactured goods from the Plaintiff. 34. The Plaintiff fully filled the orders requested by the Defendant, who knew Plaintiff would expect payment therefore. 35. The market value of the goods and services described in invoice 12301, including shipping, ordered by Defendant is $111.00. 36. Defendant benefited from receipt of the goods described in invoice 12301 without paying for them. 37. It would be unjust for Plaintiff not to be paid for the value of its specially- manufactured goods delivered to and retained by the Defendant. WHEREFORE, Plaintiff alternatively demands judgment against the Defendants for compensatory damages in the amount of $111.00, costs of suit, reasonable attorney's fees and any other relief deemed appropriate and just by the Court or to which the Plaintiff is entitled as a matter of law. Respectfully Submitted, Archer & Archer, P.C. Dated: September 10, 2008 By: Thomas A. Archer, Esquire PA Atty. ID # 73293 2515 North Front Street P.O. Box 5056 Harrisburg, PA 17110 (717) 233-8676 Attorney for Plaintiff 6 VERIFICATION I, Thomas A. Archer, Esquire, hereby verify that the statements made in the foregoing Amended Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: September 10, 2008 Thomas A. Archer, Esquire Exhibit "A" P.O. BOX 734 Camp Hill PA 17011 La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Phone: FAX: 510-825-6385 i 610-825-7945 P.O. # 4545 Terms cod ?006 black with black size 12 f 'OD ` COD 'hipping and ... Shipping and Handling nterest P` ??a f V f` ? Date 9/1712007 Invoice # 12301 La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Sales Rep Ship Date 9/1712007 Due Date 9117/2007 Total $128.76 ifo@ladybugcollection.com Phone # (717) 761-2344 Payments/Credits $0.00 rww.ladybugcollection.com ?{# (717) 761-2343 Balance Due _ $128.76 g Pv 2 c?K a4A?? P.O. BOX 734 Camp Rill PA 17011 La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Phone: FAX: 610-825-6385 610-825-7945 P.O.# Q458,8 Terms 2019 E. Red Size 14 Fabric 1 yard of sage shantung COD COD Shipping and ... Shipping and Handling Refusal Refusal Fee COD COD Shipping and ... ; Shipping and Handling Storage Fee Interest Sales Rep KE info@ladybugcollection.com Phone # (717) 761-2344 wwwdadybugcollection-com FAX # (717) 761-2343 27 Date 1011712007 Invoice # 12511 La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 Ship Date 10/17/2007 Due Date 10117/2007 t$U.UU atf.uu 15.00; 15.00 9.00 9.00 13.00 13.00 50.001 50.00 9.00 9.00 13.00' 13.00 30.00' 30.00 i 36.48 36.48 i { i •? 1 ww"i Total $264.48 Payments/Credits $0.00 Balance Due $264.48 19-3 Z?v (&Q&? P.O. BOX 734 Camp Hill PA 17011 La Bella Moda 200 Fayette Street ' Conshokocken, PA 19428-1820 i ' Phone: FAX: ._-_._.._.._-_.. ... .... _. .. _. -...-__?_._-..-. ?..... .._..__.. ....... .. _?...? L_..._...... 610-825-6385 610-825-7945 P.O.# 4600 Terms cod Sales Rep KE 1059 1 Champagne with E. Red Trim Size 1 1059 Champagne with E. Red Trim Size 2 1059 ' Champagne with E.,Red Trim Size 4 1059 E. Red with Ivory Trim Size 1 i 1059 I E. Red with Ivory Trim Size 2 1059 ''E. Red with Ivory Trim Size 4 ICOD ;COD Shipping and ... Shipping and Handling i Refusal , Refusal Fee Storage Fee COD ;COD Shipping and ... ' Shipping and Handling Interest i i i Total info@ladybugcollection.com Phone # (717) 761-2344 Payments/Credits www.ladybugeollection.com FAX # (717) 761-2343 Balance Due r t<.? no. di ?' ? v Date 11!2/2007 Invoice # 12604 La Bella Moda 200 Fayette Street Conshokocken, PA 19428-1820 i i i Ship Date Due Date i 11/2/2007 11/2/2007 99.00, 99.00 i 99.00 99.00 99.00 99.00 99.001 99.00 ' 99.00: 99.00 99.00 99.00 9.00 9.00 13.00 13.00 50.00 50.00 30.00! 30.00 9,001 9.00 13.001 13.00 i 114.881 114.88 Exhibit "B" 09106/2007 12:33 FAX la SOLD TO i ADDRESS SMI t t war ao" r FASHV4 - BOUTHM * Conshohocken, PA 19428,b 5104258386 10011001 v`r -" ?a+ ! ??pyv" v v - DATE ff.wl v 1 - 1b ORDER NO. zip ACCL NO. ISIB VIA DII.i`?!Y ?? ko ?. pr ?? D8SCM iMON 4 6 a 10 la 14 16 18 20 i I ? S cor4rfY7 Vi 71`5• Estimated Ship Dote: A6b Conf# . t *Ship dates are approximate and not aranteed 11212007 12:'1 "" 717761234 !9l ?? 12?lp17 01: ?1 aar?orYU?.r ??-a? rn++ ? i, S l ti i - .1 saw" THE LADY" Ca-LEGT O M West S ed Sap Es?? C and not . , Q002/002 PAW- 87?0? um ww-r-r y qyj VIA ,fir - Exhibit "C" BPS : Tracking Information Tiacking Home i About UPS I Contact UPS I Welcome Center Site Guide Page I of 2 UPS United States My UPS i Address Book ,racking A WorldShip Customer Track Shipments Track Shipments Track by by Reference Sionature Tracking Track by E-mail Track Packages & Freight Quantum View Flex Global View Import Tracking Numbers VVreless Tracking Tracking Detail Track with Quantum View Access Flex Global View Your package has been delivered. Integrate Tracking Tools Void a Shipment Q To view Proof of Delivery, please select the link. Hei Tracking Number: 1Z 13R 911 03 4075 005 1 Type: Package ' Ict- a 4'haw_4 Status: Delivered Proof of Delivery ,7 O Ib w11 a Delivered On: 09/21/2007 1:00 P.M. Signed By: LENA ?amSvi?? Location: RECEPTION ?? farts Delivered To: 200 FAYETTE ST CONSHOHOCKEN, PA, US 19428 Shipped/Billed On: 09/20/2007 Service: GROUND Weight: 2.00 Lbs Multiple Packages: 3 IN Sbow All :Ind Answers to Your tracking Questions Package Progress ?Go to Tracking EAQ Location Date Local Time Description WEST CHESTER, 09/21/2007 1:00 P.M. DELIVERY PA, US 09/21/2007 09/21/2007 HARRISBURG, 09/21/2007 PA, US HARRISBURG, 09/20/2007 PA, US US 09/20/2007 Printer FriendlvQ Help0 2 Save 5:18 A.M. OUT FOR DELIVERY 2:07 A.M. ARRIVAL SCAN 12:35 A.M. DEPARTURE SCAN 9:15 P.M. ORIGIN SCAN 5:30 P.M. BILLING INFORMATION RECEIVED Tracking results provided by UPS: 11/06/2007 3:00 P.M. ET Printer FriendlvQ Claim Information Have problems or questions about your package? Report a Lost or Damaged Package or Uncollected .0.Q. (U.S. Domestic Packages Only) Learn More Get Notified: Quantum View NotifysM E-mail this page to up to three recipients. Language: E-mail: TPPQ: Tracking Information wjupitz c@c omcast.net Page 2 of 2 Send ? NOTICE: UPS authorizes you to use UPS tracking systems solely to track shipments tendered by or for you to UPS for delivery and for no other purpose. Any other use of UPS tracking systems and information is strictly prohibited. (-Bark to Trarking SumrnaYV Home hi in Tracking Freight Locations i Support Business Solutions About UPS I Cont 13 UPS I Getting Started I My UPS Address Book Site Guide I Advanced Search I URS- Global UPS Corporate United States - English United States - English United States - English Copyright © 1994-2007 United Parcel Service of America, Inc. All rights reserved. Web Site Terms of Use I Privacy Policy Trademarks UPS Tariff Terms and Conditions PS: Tracking Information ?l 'elivery Notification 4?- ,ear Customer, his Is in response to your request for delivery information concerning the hipment listed below. racking Number: 1Z 13R 911 03 4075 005 1 ervice: GROUND ifeight: 2.00 Lbs hipped/Billed on: 09/20/2007 lelivered On: 09/21/2007 1:00 P.M. lelivered To: 200 FAYETTE ST CONSHOHOCKEN, PA, US 19428 igned By: LENA 2cation: RECEPTION lank you for giving us this opportunity to serve you. ncerely, cited Parcel Service acking results provided by UPS: 11/06/2007 3:00 P.M. ET Page I of I ?S://wwwannt. CERTIFICATE OF SERVICE I, Jessica R. Porter, Paralegal, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the person(s) stated below, via facsimile 215-977-1099 and U.S. First Class Mail, addressed as follows: Melissa Murphy Weber, Esquire Elliott Greenleaf & Siedzikowski, P.C. 925 Harvest Drive Blue Bell, PA 19422 Date: September 10, 2008 Z'? :J?' - yxaZ6 U Jessica R. Porter, Paralegal ? , va ? w._t ? ? ^ ? . t i.a 5+? .? ?.+?.1j." -- A..J ?? y ' 1, 4+.'d _ y ? ? -i ^'.? w TO PLAINTIFF: You are hereby notified to file a written response to the enclosed New Matter and Counterclaim within twenty (20) days of service hereof or a judgment may be entered against ou. BY: Lj Attorney for Defendant ELLIOTT GREENLEAF & SIEDZIKOWSKI, P.C. Melissa M. Weber, Esquire Attorney I.D. No. 76959 Union Meeting Corporate Center V 925 Harvest Drive, Suite 300 P.O. Box 3010 Blue Bell, PA 19422 Counsel for Defendant Telephone: 215-977-1000 Lena Pagano d/b/a La Bella Moda ALLEGRO DESIGNS, LLC, Plaintiff, V. LENA PAGANO d/b/a/ LA BELLA MODA Defendant. COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA NO. 08-3395 CIVIL ACTION-LAW COMPULSOR Y ARBITRA TION PURSUANT TO LOCAL RULE 1301-01 [AMOUNT IN CONTROVERSY IS LESS THAN $35,0001 ANSWER, NEW MATTER, AND COUNTERCLAIM OF LENA PAGANO D/B/A LA BELLA MODA TO PLAINTIFF, ALLEGRO DESIGNS, LLC'S COMPLAINT Defendants Lena Pagano d/b/a La Bella Moda ("La Bella Moda") by and through undersigned counsel, hereby files an Answer, New Matter, and Counterclaims to the Complaint filed by Plaintiff Allegro Designs, LLC ("Plaintiff' or "Allegro"). In support hereof, La Bella Moda avers as follows: 1. Denied. After reasonable investigation, La Bella Moda is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. Therefore, same are denied and strict proof thereof is demanded at the time of trial. 2. Admitted. 3. Denied. After reasonable investigation, La Bella Moda is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. Therefore, same are denied and strict proof thereof is demanded at the time of trial. 4. Admitted in part; denied in part. It is admitted that La Bella Moda is a specialty store catering to bridal parties including the special ordering of dresses for members of the bridal party. 5. Admitted in part; denied in part. It is admitted that La Bella Moda ordered dresses from Allegro as special orders requested by clients of La Bella Moda. 6. Admitted. By way of further pleading, despite Plaintiff's promise to timely deliver the specially-ordered goods knowing the delivery date was an essential term of the agreement, Plaintiff failed to do so. 7. Admitted. 8. Admitted in part; denied in part. It is only admitted that La Bella Moda would place its orders via facsimile with Plaintiff and that said facsimile was purportedly received at Plaintiff's place of business in Cumberland County. After reasonable investigation, La Bella Moda is without knowledge or information sufficient to form a 2 W belief as to the truth of the averments contained in this paragraph. Therefore, same are denied and strict proof thereof is demanded at the time of trial. 9. Denied. Plaintiff did not process the orders and/or failed to timely process the orders placed by La Bella Moda for the invoices averred in this paragraph. 10. Denied. The averments of this paragraph seek to characterize documents which are writings that speak for themselves. 11. Denied. La Bella Moda properly rescinded and/or modified the contracts upon which Plaintiff's action is based. By way of further pleading, La Bella Moda did not accept the goods and same were returned to Plaintiff. 12. Denied. By way of further answer, both as a result of being informed by La Bella Moda and by course of dealings between the parties, Plaintiff knew that the delivery dates requested by La Bella Moda and confirmed by Plaintiff were material terms to the agreement and knew that modifications made timely by La Bella Moda were accepted by Plaintiff. 13. Denied. Plaintiff incurred $57.00 in shipping and handling. 14. Denied. The averments of this paragraph seek to characterize documents which are writings that speak for themselves. 15. Denied. Plaintiff failed to perform its duties in that it failed to deliver the goods ordered and/or failed to deliver the goods within the time agreed upon by the parties. 16. Admitted. 17. Denied. 3 f 18. Admitted in part; denied in part. La Bella Moda properly rejected the goods which failed to conform to the agreement. 19. Denied. Based on information and belief, William Jupitz, acting on behalf of Plaintiff, has previously admitted under oath that Plaintiff did not attempt to re-ship or cure the initially defective shipments which La Bella Moda property rejected as non- conforming to the agreement. As such, Plaintiff did not incur any additional shipping and handling costs. 20. Denied. It is not reasonably nor customary to charge for storage and refusal fees when said fees are incurred as a result of Plaintiff's errors. La Bella Moda property rejected the goods as they failed to conform to the agreement. 21. Denied. While it is admitted that the goods were special orders, they were not custom orders tailored to a specific customer but rather selected by La Bella Moda's customers from a catalogue or other marketing material provided by Plaintiff. 22. Denied. After reasonable investigation, La Bella Moda is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. Therefore, same are denied and strict proof thereof is demanded at the time of trial. 23. Denied. La Bella Moda properly rejected the goods and, therefore, Plaintiff is not entitled to payment. FIRST COUNT-BREACH OF CONTRACT 24. La Bella Moda incorporates the foregoing paragraphs as if fully set forth herein. 25. Denied as a conclusion of law. 4 3 26. Denied as a conclusion of law. 27. Denied as a conclusion of law. To the extent a response is required and by way of further pleading, Plaintiff failed to perform in accordance with the terms of the agreements at issue. 28. Denied as a conclusion of law. WHEREFORE, La Bella Moda requests judgment be entered in its favor. .SECOND COUNT-PROMISSORY ESTOPPEL (pleaded in alternative) 29. La Bella Moda incorporates the foregoing paragraphs as if fully set forth herein. 30. Denied as a conclusion of law. To the extent a response is required and by way of further pleading, Plaintiff failed to provide La Bella Moda the goods it ordered and/or by the time required in the agreements. 31. Denied as a conclusion of law. To the extent a response is required, after reasonable investigation, La Bella Moda is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. Therefore, same are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, La Bella Moda requests judgment be entered in its favor. THIRD COUNT-QUANTUM MERUIT (pleaded in alternative) 32. La Bella Moda incorporates the foregoing paragraphs as if fully set forth herein. 33. Denied. The orders placed by La Bella Moda and accepted by Plaintiff were not custom orders tailored to a specific customer of La Bella Moda but rather were 5 • "special orders" in that they were ordered for a specific size and color and to be delivered by a specific date. 34. Denied as a conclusion of law. To the extent a response is required and by way of further pleading, Plaintiff failed to accurately and/or timely comply with the terms of the agreement. 35. Denied. After reasonable investigation, La Bella Moda is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. Therefore, same are denied and strict proof thereof is demanded at the time of trial. 36. Denied. 37. Denied as a conclusion of law. WHEREFORE, La Bella Moda requests judgment be entered in its favor. NEW MATTER La Bella Moda incorporates by reference the foregoing paragraphs as if fully set forth herein at length. 1. Allegro's Complaint fails to state any cause of action upon which relief may be granted against La Bella Moda. 2. The alleged damages were caused solely by the actual and/or intervening carelessness, negligence, gross negligence or recklessness or other liability producing conduct of Allegro and therefore, La Bella Moda is not liable. 3. All damages allegedly sustained by Allegro were caused by the acts and/or omissions of Allegro. 6 4. Allegro's claims against La Bella Moda are barred, in whole and/or in part, by the doctrines of estoppel, consent, waiver, illegality and/or unclean hands. 5. Allegro's claims against La Bella Moda are barred, in whole or in part, by the doctrine of laches and/or, if applicable, the statute of limitations and by principles of privilege, release or justification. 6. Allegro's claims and/or right to recover is barred or limited because Allegro failed to mitigate its damages, if any. 7. Allegro's claims are barred by accord and satisfaction. 8. To the extent to which Pennsylvania Rule of Civil Procedure 1030 and 1032 mandate that any and all affirmative defenses not set forth are waived, La Bella Moda asserts any and all affirmative defenses contemplated by Pennsylvania Rules of Civil Procedure 1032 and 1030 now and if the same become available to it through discovery and/or trial. WHEREFORE, Defendant Lena Pagano d/b/a La Bella Moda respectfully requests that this Court dismiss Allegro's claims with prejudice, and grant such other relief in her favor the Court deems proper. COUNTERCLAIM Defendants/Counterclaimants Lena Pagano d/b/a/ La Bella Moda ("La Bella Moda"), by and through its undersigned counsel, hereby brings these Counterclaims against Plaintiff/Counterclaim Defendant Allegro Designs, LLC ("Allegro") as follows: 1. Lena Pagano is an adult individual and owner of La Bella Moda, a Pennsylvania business entity whose principle place of business is 200 Fayette Street, Conshohocken, PA 19428. 7 2. La Bella Moda ("La Bella Moda") is a specialty store catering to brides, members of a bridal party, and mothers of the bride and groom whereby it provides samples of wedding gowns, bridesmaid dresses, gowns, and flower girl dresses from which clients select for special ordering. 3. Allegro Designs, LLC ("Allegro") purports to be a Maryland Limited Liability Company with a registered office and principal place of business located at 94 Eastgate Drive, Camp Hill, PA 17110. 4. On or before August 24, 2007, La Bella Moda submitted Purchase Order #4588 with Allegro wherein it ordered one flower girl dress for delivery on or before October 6, 2007. 5. Allegro accepted this Purchase Order and, on August 24, 2007, issued Confirmation No. 3600 to La Bella Moda. 6. On or about September 25, 2007, La Bella Moda contacted "Kelly" at Allegro and received confirmation that delivery was on time as agreed. 7. On or about October 3, 2007, La Bella Moda contacted Bill Jupitz at Allegro and again received confirmation that deliver was on time as agreed. 8. Allegro failed to ship Purchase Order #4588 by October 6, 2007 as promised. 9. Allegro did not ship Purchase Order #4588 until on or after October 20, 2007. 10. As a result of Allegro's failure to comply with the terms of the agreement and ship the flower girl dress by the date demanded and made a part of the agreement, La 8 Bella Moda was unable to provide the flower girl dress in a timely manner to the bridal party and was left with no choice but to refund the deposit paid by the customer. 11. On September 6, 2007, La Bella Moda submitted Purchase Order #4600 to Allegro wherein it ordered three (3) champagne with euro red trim flower girl dresses, style no. 1059. See collection of documents attached hereto as Exhibit "1." 12. On or about September 7, 2007, at the request of the La Bella Moda customer, La Bella Moda contacted Allegro and placed Purchase Order #4600 on hold. 13. On or about September 8, 2007, La Bella Moda again contacted Allegro confirming Purchase Order #4600 was on hold and requesting a color swatch of the same flower girl dress in the ivory euro trim satin. See id. 14. On September 12, 2007, La Bella Moda submitted a modified Purchase Order #4600 to reflect the color change from champagne with euro red trim to euro red with ivory trim and requested the order be processed as modified in writing. See id. 15. On September 13, 2007, La Bella Moda confirmed receipt of modified Purchase Order #4600 with Allegro. 16. Allegro accepted Purchase Order #4600 as modified. 17. On or about November 2, 2007, Allegro failed to comply with the agreement and shipped, in one carton, both the initial order which was modified and the modified order. 18. Because Allegro shipped the carton "Cash on Delivery," La Bella Moda was unable to accept the modified order. As such, La Bella Moda had to reject the entire shipment. 9 19. As a result of Allegro's failure to comply with the terms of the agreement, as modified to change the dress color, La Bella Moda had to incur time and expenses to make alternative arrangements to satisfy the customer. COUNTI BREACH OF CONTRACT 20. La Bella Moda incorporates the foregoing paragraphs as if fully set forth herein. 21. On or about August 24, 2007, the parties entered an agreement whereby Allegro agreed to deliver specified goods on or before October 6, 2007. 22. Allegro failed to timely deliver the goods. 23. The timelines of delivery was a material term in the agreement. 24. As a result of Allegro's failure, La Bella Moda suffered damages in excess of $100.00. 25. As a result of Allegro's failure, La Bella Moda suffered damages to its reputation in the bridal business community. WHEREFORE, La Bella Moda demands judgment against Allegro Designs, LLC for compensatory damages in excess of $100.00, costs of this action, reasonable attorneys' fees, and any other relief the Court deems just and appropriate as a matter of law. COUNT II BREACH OF CONTRACT 26. La Bella Moda incorporates the foregoing paragraphs as if fully set forth herein. 10 • 27. On or about September 12, 2007, the parties entered into an agreement whereby La Bella Moda modified, in writing, an initial agreement entered by the parties on or about September 6, 2007 whereby Allegro agreed to deliver specified goods on or before December 8, 2007. 28. Allegro failed to deliver the goods as agreed upon by the parties. 29. As a result of Allegro's conduct in sending non-conforming goods, La Bella Moda rejected the delivery in its entirety. 30. As a result of Allegro's conduct, La Bella Moda suffered damages in excess of $300.00. 31. As a result of Allegro's conduct, La Bella Moda suffered damages to its reputation in the bridal business community. WHEREFORE, La Bella Moda demands judgment against Allegro Designs, LLC for compensatory damages in excess of $300.00, costs of this action, reasonable attorneys' fees, and any other relief the Court deems just and appropriate as a matter of law. OF COUNSEL: ELLIOTT GREENLEAF & SIEDZIKOWSKI, P.C. J " N, ?)., ? " - - MELISSA M. WEBER Union Meeting Corporate Center V 925 Harvest Drive, Suite 300 Blue Bell, PA 19422 (215) 977-1000 (215) 977-1099 FAX Counsel for Defendant DATED: November 24, 2008 11 A SOLD TO ADDRESS r FASHIONS - BOUTIQUE • Conshohocken, PA 19428.610-825-6385 DATE! ORDER NO. 7 QD Zjp gZIa6 ACCT. NO. - SHIP VIA DELIVERY m l?r oo STYLE # DESCRIPTION 4 6 8 10 12 14 16 18 20 ?D 9 wl Evro. ?.ed trim ,r i P&se clor4rry? vl,1,4' - 4 a,?- Div Bas "45-1 ?iarrK n r r FASHIONS - BOUTIOUE • Conshohocken, PA 19428.610-825-6385 $Uid T?ror? fA)K0(V an ?f) our W*w C,O.n Aodu r Kt&p ? brC{Z4 (M ?'WIC? P.q,g,o?- ?n?ti? ?cdzl?s 0. . until -IG,en. r FASHIONS - BOUTIQUE • Conshohocken, PA 19428.610-825-6385 hIcowse P'roce55 y?.e ?Cl?l?ny ordcr WaS ?vr G,1s mfr Cl-?ah?e?/ 44v n OW. q-/,?, 0-7- pw- on hold c,o1or. Phaz 4AIa-.n< ?w kli- „ 09/12/2007 23:52 7177612343 Vor lc/cY4f Ic.71 r A A VY071207 01:61 7177612343 YQIYQI CMY,f ?? _ ?? r 1?q I l . i 1 8stlvad ? D?bes !"/?O Came MR* irfr fff???s?bs mad aot • f r?n V A d?" Wo lv? THE LADYBUG COLLECTO THE LADYNX COLLI TO ?tttpn?'?IO?A .?ti M 1?tr ¦ ?IOi4?li ?xm PAGE 01/01 Id YVC/ Y4L PAW eifez i • VERIFICATION I, Melissa M. Weber, hereby state that I am an attorney for Defendants/Counterclaimants in the foregoing action; I have been authorized to make this Verification on their behalf, and the statements set forth in the foregoing are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsifications to authorities. ki",-Ct V Melissa Murphy Weber DATED: November 24, 2008 CERTIFICATE OF SERVICE I, Melissa M. Weber, Esquire, hereby certify that on this date, I caused correct co a true and py of the foregoing Answer, New Matter, and Counterclaim to be served the following via First Class Mail and Facsimile. upon Thomas A. Archer, Esquire Law Offices of Archer and Archer 2515 North Front Street P.O. Box 5056 Harrisburg, PA 17110 - 0056 717-233-8676 717-233-8675 (fax) DATED: November 24, 2008 Melissa Murphy Weber y ???? -r ?, ^J 't;t { _, . J Archer & Archer, P.C. By: Thomas A. Archer, Esquire 2515 North Front Street PO Box 5056 Harrisburg, PA 17110-5056 717.233.8676 ALLEGRO DESIGNS, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. : DOCKET No. 08-3395-Civil Term LENA PAGANO, Individually and d/b/a LA BELLA MODA CIVIL ACTION -LAW JURY TRIAL DEMANDED Defendants NOTICE TO PLEAD TO: Lena Pagano, Individually and d/b/a La Bella Moda c/o Melissa Murphy Weber, Esquire 925 Harvest Drive P.O. Box 3010 Blue Bell, PA 19422 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. Dated: December 31, 2008 By: Thomas A. Archer, Esquire PA Atty. ID # 73293 2515 North Front Street P.O. Box 5056 Harrisburg, PA 17110 (717) 233-8676 Archer & Archer, P.C. By: Thomas A. Archer, Esquire 2515 North Front Street PO Box 5056 Harrisburg, PA 17110-5056 717.233.8676 ALLEGRO DESIGNS, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. : DOCKET No. 08-3395-Civil Term LENA PAGANO, Individually and : d/b/a LA BELLA MODA CIVIL ACTION -LAW JURY TRIAL DEMANDED Defendants PLAINTIFF'S REPLY TO NEW MATTER AND ANSWER WITH NEW MATTER TO COUNTERCLAIM OF DEFENDANTS AND NOW, Plaintiff, by and through its attorney, Thomas A. Archer, Esquire, files this Reply to Defendants' New Matter, as well as Answer and New Matter to Defendants' Counterclaim, and in support thereof avers as follows: REPLY TO NEW MATTER Plaintiff incorporates the allegations of Plaintiff's Complaint as though set forth herein at length. L-8. Denied. The allegations contained in these paragraphs of Defendants' New Matter constitute conclusions of law to which no response in required and are therefore denied. WHEREFORE, Plaintiff, Allegro Designs, LLC, respectfully requests judgment in its favor and against Defendants with respect to the claims advanced in Plaintiff's Amended Complaint. PLAINTIFF'S ANSWER TO COUNTERCLAIM Plaintiff incorporates the averments of Plaintiff's Amended Complaint and New Matter above as though set forth herein at length. 1. Denied. After reasonable investigation, Plaintiff is without sufficient knowledge to confirm the allegations of this paragraph, which are accordingly denied. 2. Denied. After reasonable investigation, Plaintiff is without sufficient knowledge to confirm the allegations of this paragraph, which are accordingly denied. 3. Denied as stated. At all relevant times, Defendant is a Maryland, LLC. 4. Admitted in part; denied in part. It is admitted that Defendant submitted purchase order #4588. However, Defendant does not have any documentation revealing that the purchase order was submitted on or about August 24, 2007 or that delivery was requested on or before October 6, 2007 and proof of same is demanded. 5. Denied. Plaintiff is without sufficient knowledge to either admit or deny this allegation and therefore denies it. 6. Denied. Plaintiff does not guarantee shipping dates. 7. Denied. Plaintiff does not guarantee shipping dates. 8. Admitted in part; denied in part. It is admitted that Plaintiff did not ship purchase order #4588 by October 6, 2007, however it is denied that Plaintiff "promised" that the order would be shipped by October 6, 2007. 9. Denied. Purchase order #4588 (invoice #12511) was shipped on October 18, 2008. 10. Denied. After reasonable investigation, Plaintiff is without sufficient knowledge to confirm the allegations of this paragraph, which are accordingly denied 11. Admitted. 12. Denied. Plaintiff does not accept new orders or modifications of existing 2 orders over the telephone and has no written documentation that the Defendant requested the order be placed on hold on or about September 7, 2007. 13. Denied. Plaintiff did not receive Defendant's correspondence dated September 8, 2007. 14. Denied. Plaintiff was unaware that the Defendant requested the "original" order to be placed on hold and therefore processed the "modified" order as a separate order. 15. Denied. Plaintiff is without sufficient knowledge to admit or deny this allegation and therefore denies it. 16. Denied as a conclusion of law to which no response is required. 17. Denied. Plaintiff shipped both orders on November 4, 2007. The orders were processed as two separate requests. 18. Denied. Defendant could have accepted the carton as shipped and contacted Plaintiff at a later date to discuss the contents of the shipment. Plaintiff would have been amendable to accept returns due to the circumstances. 19. Denied. Defendant could have accepted the carton as shipped and contacted Plaintiff at a later date to discuss the contents of the shipment. Plaintiff would have been amendable to accept returns due to the circumstances. Then Defendant would have had the goods needed to satisfy the customer's needs. COUNTI BREACH OF CONTRACT 20. Plaintiff incorporates the averments of Plaintiff's Complaint, New Matter above and paragraphs 1-19 as though set forth herein at length. 21. Denied as a conclusion of law to which no response is required. 22. Denied as a conclusion of law to which no response is required. 3 23. Denied as a conclusion of law to which no response is required. 24. Denied as a conclusion of law to which no response is required. 25. Denied as a conclusion of law to which no response is required. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against Defendants with respect to the matters complained of in Plaintiff's Amended Complaint, as well as the matters alleged in Defendants' Counterclaim, together with interest, costs, attorney's fees and any other relief to which the Court deems just and proper, or to which Plaintiff is entitled as a matter of law. COUNT II BREACH OF CONTRACT 26. Plaintiff incorporates the averments of Plaintiff's Complaint, New Matter above and paragraphs 1-25 as though set forth herein at length. 27. Denied as a conclusion of law to which no response is required. 28. Denied as a conclusion of law to which no response is required. 29. Denied as a conclusion of law to which no response is required. 30. Denied as a conclusion of law to which no response is required. 31. Denied as a conclusion of law to which no response is required. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against Defendants with respect to the matters complained of in Plaintiff's Amended Complaint, as well as the matters alleged in Defendants' Counterclaim, together with interest, costs, attorney's fees and any other relief to which the Court deems just and proper, or to which Plaintiff is entitled as a matter of law. 4 II NEW MATTER TO COUNTERCLAIM 40. Defendants' Counterclaim fails to state a cause of action upon which relief may be granted. 41. Defendants' Counterclaim is barred by the doctrine of laches. 42. Defendants' Counterclaim is barred by the doctrine of unclean hands. 43. Defendant's Counterclaim is barred for lack of consideration. 44. Defendant's Counterclaim is barred because Defendant did not mitigate its damages, if any. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against Defendants with respect to the matters complained of in Plaintiffs Amended Complaint, as well as the matters alleged in Defendants' Counterclaim, together with interest, costs, attorney's fees and any other relief to which the Court deems just and proper, or to which Plaintiff is entitled as a matter of law. Respectfully Submitted: Archer & er, P.C. Date: December 31, 2008 By: Thomas A. Archer, Esquire PA Atty Id.: 73293 2515 North Front Street P.O. Box 5056 Harrisburg, PA 17110 (717) 233-8676 5 CERTIFICATE OF SERVICE I, Jessica R. Porter, Paralegal, hereby certify that on the date set forth below I served a true and correct copy of the foregoing Plaintiff's Reply to New Matter and Answer with New Matter to Counterclaim of Defendant upon the person(s) stated below, via U.S. First Class Mail, addressed as follows: Melissa Murphy Weber, Esquire Elliott, Greenleaf & Siedzikowski, P.C. 925 Harvest Drive, Suite 300 P.O. Box 3010 Blue Bell, PA 19422 Date: December 31, 2008 4 Jessica R. Porter, Paralegal w _,N77 F ,7 f. ELLIOTT GREENLEAF & SIEDZIKOWSKI, P.C. Melissa M. Weber, Esquire Attorney I.D. No. 76959 Union Meeting Corporate Center V 925 Harvest Drive, Suite 300 P.O. Box 3010 Blue Bell, PA 19422 Counsel for Defendant Telephone: 215-977-1000 Lena Pagano d/b/a La Bella Moda ALLEGRO DESIGNS, LLC, COURT OF COMMON PLEAS, Plaintiff, CUMBERLAND COUNTY, PA V. NO. 08-3395 LENA PAGANO d/b/a/ LA BELLA MODA CIVIL ACTION-LAW Defendant. COMPULSORYARBITRATION PURSUANT TO LOCAL RULE 1301-01 [AMOUNT IN CONTROVERSY IS LESS THAN $35, 0001 REPLY OF LENA PAGANO DB/A LA BELLA MODA TO PLAINTIFF, ALLEGRO DESIGNS, LLC'S NEW MATTER TO COUNTERCLAIM Defendants/Counterclaimants Lena Pagano d/b/a La Bella Moda ("La Bella Moda") by and through undersigned counsel, hereby files a Reply to New Matter to Counterclaim filed by Plaintiff/Counter Defendant Allegro Designs, LLC ("Allegro"). In support hereof, La Bella Moda avers as follows: 40. - 44. Denied as a conclusions of law. Melissa Murphy Weber Dated: 1 / 19/09 CERTIFICATE OF SERVICE I, Melissa M. Weber, Esquire, hereby certify that on this date, I caused a true and correct copy of the foregoing Answer to New Matter to Counterclaim to be served upon the following via First Class Mail and Facsimile. Thomas A. Archer, Esquire Law Offices of Archer and Archer 2515 North Front Street P.O. Box 5056 Harrisburg, PA 17110 - 0056 717-233-8676 717-233-8675 (fax) I ) ?) ? -h? -A-Vpi a 1, ? ?f' /? - Melissa Murphy Web r DATED: 1/19/09 ? c?' ? ..t.' F ?_.: ? ? t A.,ver _ i iZ ?. ?F..t 1 "V .91?f ?a./ ?' } 4. ?. ??? ? ? p r ? 4?+ _.? _ ? r .? ??„?p V i ?/J ??