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HomeMy WebLinkAbout10-6553 WILLIAM ASPINALL, Plaintiff vs. r~~"~ Coro acT 2a P~ ~: 2~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA THE CONSIGNMENT GALLERY, INC., Defendant Docket No. e~.l p - Ce~ 3. In Replevin AMENDED MOTION FOR WRIT OF SEIZURE UPON NOTICE AND HEARING AND NOW, comes Plaintiff, WILLIAM ASPINALL, by and through his attorney, Luther E. Milspaw, Jr, Esquire, and pursuant to Pa. R.C.P. Rule 1075.1, files this Amended Motion for Writ of Seizure and in support thereof, avers as follows: 1. Movant is Plaintiff, WILLIAM ASPINALL, is an adult individual with a business address on State Street, Lemoyne, Cumberland County, Pennsylvania 17043. 2. Respondent is Defendant, THE CONSIGNMENT GALLERY, INC., a corporation duly organized under the laws of the Commonwealth of Pennsylvania with a business address of 164 North Hanover Street, Carlisle, Cumberland County, Pennsylvania 17013. 3. A copy of the Complaint as filed in the replevin action is attached hereto. 4. A proposed notice of hearing in the form as provided by Rule 1353 is attached with this motion. 5. Movant is prepared to file a bond in a sum equal to twice the value of the property averred in the Complaint. 6. The security for the bond will be such as is approved by the Prothonotary of Cumberland County, naming the Commonwealth as Obligee and conditioned that if Plaintiff fails to maintain the right to possession of the property, Plaintiff shall pay the party entitled thereto, the value of the property and all legal costs, fees, and damages sustained by reason of the issuance of a writ, all in accordance with Pa. R.C.P. Rule 1075.3. 7. No judge has ruled upon any other issue in this or any related matter. 8. There is no other counsel of record in this matter. However, in a related civil action captioned in the Court of Common Pleas Cumberland County as William Aspinall vs. The Consignment Gallery. Inc., Defendant, Docket No. 2010-5529, Christopher E. Rice, Esquire, has entered his appearance for the Defendant and he was asked via email on October 18, 2010, whether he would be entering his appearance in this Replevin Action and if so, would he concur in the motion. He indicated by reply email on October 19, 2010, that he would be entering his appearance following service, and he doubts he will concur. The concurrence of the principal of his client, Patricia Marbain Kraybill, was also sought via email. She did not respond by noon on October 19, 2010. WHEREFORE, Movant, WILLIAM ASPINALL, respectfully requests this Honorable Court to: (1) schedule a hearing on this Motion as soon as possible and thereafter, issue a Writ of Seizure for the property as listed on Exhibits "B" and "C" of the Complaint; (2) award costs of this Motion, including, but not limited to attorneys' fees and court costs; and (3) such and further relief as this Court deems just and proper. espectfully sub itte LUTHE E. LSPAW, Attorney ID No. 19226 130 State Street P.O. Box 946 Harrisburg, PA 17108-0946 (717) 236-3141 Attorney for Plaintiff Dated: October 19, 2010 WILLIAM ASPINALL, Plaintiff vs. THE CONSIGNMENT GALLERY, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No.,~~('~ I ~ - (e 553. . In Replevin CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the above- Amended Motion for Writ of Seizure upon the Defendant and upon Defendant's counsel in a related case, by hand delivery and by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, on the 19`" day of October 2010, addressed as follows: Christopher E. Rice, Esquire Martson Deardorff Williams Otto Gilroy & Faller Ten East High Street Carlisle, PA 17013 THE CONSIGNMENT GALLERY, INC. 164 North Hanover Street Carlisle, Pennsylvania 17013. R spe tfully s b itte UTH E. M SPA , J~ Attorney ID No. 19226 I 130 State Street P.O. Box 946 Harrisburg, PA 17108-0946 (717) 236-3141 Attorney for Plaintiff OCS ~ 5 2010 WILLIAM ASPINALL, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA vs. Docket No. ~ O~SS~ THE CONSIGNMENT GALLERY, INC., Defendant In Replevin NOTICE OF HEARING FOR SEIZURE OF PROPERTY TO: THE CONSIGNMENT GALLERY, INC. PATRICIA MARBAIN KRAYBILL 164 North Hanover Street Carlisle, PA 17013 You are hereby notified that: 1. Plaintiff has commented an action of replevin and has filed a motion for seizure of the property described in the complaint. A copy of the complaint and motion is attached to this notice; rn 2. There will be a hearing on this motion on ~-,14a o?0/4. Q,t3~/JYp, at the Cumberland County Courthouse, ~_ Floor, Courtroom # ~{ ,One Courthouse Square, Carlisle, PA 17013; 3. You may appear in person or by a lawyer at the time and place set forth or file written objections setting forth your reasons why the property should not be seized; 4. Your failure to appear at the hearing may result in the seizure of the property claimed by Plaintiff before a final decision in this case. ~'J l £S iYt,~ I ~~-~ e .12. ~~ Rey ~. ~ m, (~ ~ ~o~a ~.~ ro ~~ ,~ ~- ~~ ~ ~..~., ~ -~ y-~ rT f "T ~ ~ ~ -~.. ~ j 7 ~:~ ~ ~~ . t , ~~ ~ --.{~ ~~ n o ~ -=~ ~.~ -~ ~, _~ OFFICE OF THE COURT ADMINISTRATOR CUMBERLAND COUNTY COURT OF COMMON PLEAS 1 Courthouse Square • Carlisle, PA 17013 Phone (717) 240-6200 Toll Free 1-888-697-0371 x6200 Fax (717)240-6460 jbray@ccpa.net VIA FACSIMILE ONLY: (717) 236-0791 RE: Notice of Failure to Comply with Cumberland County Local Rule 208.3 (a) Motion for Writ of Seizure Upon Notice and Hearing (2010-6553 William Aspinall v. The Consignment Gallery, Inc.) Dear Mr. Milspaw, Please note that due to your failure to comply with Cumberland County Local Rule 208.3(a)(2) and/or Rule 208.3(a)(9), your motion will be held in the Court Administrator's Office until an amendment containing the missing information is filed in the Prothonotary's Office. If after two notices no amendment has been filed, your motion will be sent back to the Prothonotary's office and placed in the file and no further action will be taken. Rule 208.3(a). Motions. (2) The motion shall state whether or not a Judge has ruled upon any other issue in the same or related matter, and, if so, shall sped the judge and the issue. (9) All motions and petitions shall contain a paragraph indicating that the concurrence of any opposing counsel of record was sought and the response of said counsel; provided, that this requirement shall not apply to preliminary objections, motions for judgment on the pleadings, motions for summary judgment, petitions to open or strike judgments, and motions for post-trial relief. Please note that you do not need to file an additional proposed order or provide additional envelopes for service. Your amendment will be attached to the original motion. Please feel free to contact me if you have any questions or concerns regarding this matter. Sincerely, ^ ~ I~-~~ Jennifer E. Bray Deputy Court Administrator TRANSMISSION VERIFICATION REPORT TIME 10118f2010 03:08 NAME FAX TEL SER.# I3RDD6J462119 DATE, TIME 10/18 03:08 FAX NO.INAME 92360791 DURATION 00:00:15 PAGECS) 01 RESULT OK MODE STANDARD ECM OFFICE OF THE couRT AD~INI~rRATOR CUMBERL4ND COUNTY COURT OF COMMON PLEAS i Ceurthouse Square ~ Carlisle, PA J,7013 Phone (717) 24Q-62DD Toil Free 1-888-fi97-D371 x6ZOQ Fax (717} 240-b460 jbray~ccpa.net vxA. F~-csMLl; aNI..Y: (717) z~s~oz91 RE; Notice of P'aiiure to Comply with Cumberland County Local Rule 208.3 (a) 1Vlotian for Writ ofi Seizure Upotn Notice and wearing (2010-6553 William Aspina1l v. T'he Consigrune~nt Cfallery, Inc,) x?car Mr. Milspaw, Please ndtc that due to your failure to comply with Cumberland County Local Rule 208.3(a)(2) andlor Rule 208.3(a)(9), your motion will be held in the Court Administrator.'s C7~xee until are amendment containing the missing information is filed in the Prothonotary's Oi~iice.T,f after two notices no amendment has been $l.ed, your motion will be seat back to the l?rothonotary's ofi'iee and placed in the file and no further action will be taken. Rule 208.3(x). Motions. (2) motion shall state whether or not a. Judge has ruled upon any other Issue in the same or related matter, and, i, f so, shall specify the judge and the issue. (9) A11 motions and petitions shall contain a paragraph indicating That the concurrence of any opposing _ . . . • . Y 17 .... __7.. ~- ~~L~~-0~~1C~ ~~,~~,, ~~~ ~ ~~ t~~ ~~~ Christopher E. Rice, Esquire ~~ ~: ~` r~10 ~~~ 2$ Attorney I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GIL1~,~~~~~1C~~~~~ 1' MARTSON LAW OFFICES of}a4~~~~ ~~~~~~ ~'` 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff WILLIAM ASPINALL, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 2010-6553 THE CONSIGNMENT GALLERY, INC., Defendant :CIVIL ACTION -LAW PRAECIPE To the Prothonotary: Please enter the appearance of MARTSON DEARDORFF WILLIAM OTTO GILROY & FALLER, as attorneys for the Defendants in the above-referenced matter. MARTSON LAW OFFICES By: ~~fi~ v~i I' Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: /D o2~/~U .,~' CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Luther E. Milspaw, Jr., Esquire 130 State Street P.O. Box 946 Harrisburg, PA 17108-0946 MARTSON LAW OFFICES By: ~~ M .Price Ten ast High Street Carlisle, PA 17013 (717) 243-3341 Dated: ~ 0 ~/(J NOV 0 3 X010 WILLIAM ASPINALL, Plaintiff vs. 'THE CONSIGNMENT GALLERY, INC., Defendant WILLIAM ASPINALL, Plaintiff vs. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 2010-5529 Civil Action -Law THE CONSIGNMENT GALLERY, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 2010-6553 In Replevin ORDER AND NOW, this 3~ day of Ala r ~..drer , 2010, upon stipulation of Plaintiff, WILLIAM ASPINALL, by and through his attorney, Luther E. Milspaw, Jr., Esquire, and Defendant, THE CONSIGNMENT GALLERY, INC., by and through its attorney, Christopher E. Rice, Esquire, it is ORDERED and DECREED that the public sale of certain goods and items as scheduled by Defendant to commence on November 3, 2010, shall not include the offering for sale, or sale, of any of the goods and items as designated on Exhibit "A" to the Stipulation; AND FURTHER, a Writ of Seizure shall issue, directed to the Sheriff of Cumberland County, to seize said property listed as Exhibit "A" to the Stipulation, upon the posting of a bond in accordance with Pa. R.C.P. 1075.3 in the sum of $200,000.00, twice the value of the property stipulated to by the parties; AND FURTHER, that the Hearing scheduled for November 10, 2010, is hereby cancelled. Distribution: Luther E. Milspaw, Jr., Esquire .~'hristopher E. Rice, Esquire _ ~~ ~~1~ p !u~ i!! aa,~~11U 1 _~ ~ ~ r*-~ ~~ ~~ -<~' n ~ ~n 0 vc N b GAS 0 w ~. w ~~ ~~ o ° _ ° a on -fr'" D -< WILLIAM ASPINALL, Plaintiff vs. THE CONSIGNMENT GALLERY, INC., Defendant In Replevin WRIT OF SEIZURE TO THE SHERIFF OF CUMBERLAND COUNTY: You are directed to seize the following property listed on Exhibit "A" hereto located at 164 North Hanover Street, Carlisle, Cumberland County, Pennsylvania 17013). Date: ~~~ S. a©l0 (SEAL) C~ ~a -Da ~- ~y IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA • `: Docket No. a0/6 - to SS,.3 ~t~,u-~ psi ~ayral ~- /~~~ Prothonotary By: D putt' a ~.-~ c ~ -n ._.. --+ rn-n ~ c~ ~ fir" 1 pO -<v cr, --+a y~ ~ ° -n "~ ~ c ~ ° m D~ ~ -i ~ 7v -< --~ .~ a-~ ~ ~. EXHIBIT "A" TO WRIT OF SEIZURE ITEMS LOCATED AT CONSIGNMENT GALLERY All items in bold are excluded from the list of items that are subject to the Stipulation. Such items may be sold by Defendant and are not to be seized by the Sheriff of Cumberland County according to the Stipulation. Plaintiff reserves the right to contest the ownership of such items. 1. Hand painted "D" shaped commode with oval painted panel in front 2. Large guild mirror 3. Ten (10) piece dining room suit (8 chairs, table, and side board): Trish originally wanted, I believe, took to her house for a while.* 4. Four (4) drawer Pennsylvania cherry period Chippendale chest with quarter columns 5. Assortment of rugs on the first, second and possibly third floors all which should be on file in the rug book. 6. Period tiger maple four (4) drawer chest with unusual inlays on the top post 7. Painted white cast iron full size figure of one of the seasonal women, probably Fall 8. Mahogany period probably English Queen Anne round-top "T" table 9. Large reproduction painting and guild frame garden scene 10. Five (5) piece straight back french-style parlor set that may have been a direct purchase 11. Antique country stand with tiger maple drawer front 12. Large scale Aubusson hand woven rug 13. Two tone oval-shaped shield type hanging mirror 14. Clear etched window mounted in a new frame 15. Heriz rug looks to be around a 9 x 12 Page 1 of 11 16. Three (3) drawer shell carved top drawer, chest of drawers ftom the new mahogany 17. Large bronze figure of female in gold dress on a marble pedestal 18. Large clear mirror - artdeco style 19. Two (2) large mirrors: one seems to be divided into nine (9) squares and looks to be 5' tall; another one is an elaborate over-mantle mirror 20. Walnut, two (2) drawer stretcher based farm table 21. Large painting of a pastel with a house and a white fence 22. Broken arch mahogany mirror with guild eagle on top 23. Black and gold mirror with two (2) guilded winged lions on top 24. Matching pair of straight leg camel back upholstered love seats 25. Jewelry case: 10 turquoise mounted antique prayer boxes 26. Three (3) drawer serpentine front tan colored French style commode 27. Antique stroller with wagon-style wheels 28. Model of the Robert E. Lee paddle boat in a case under glass with a wooden frame under 29. Mixed metal figure of a confederate type soldier beating on a drum 30. Antique (kind of blue and white) satsuma table light 31. Retro table light with curve Lucite and copper ball shade 32. Pair of marble table lights with brass fittings 33. Custom mahogany mirror with carved inset eagle 34. Triple mahogany dresser from the new imports 35. "S" table with porcelain plaques "as-is" 36. Photos of the rug piles and the rug rack which is full of rugs Page 2 of 11 37. Unusual antique fountain-type piece 38. Brass fire screen with tapestry insert 39. Pink Queen Anne wing chair 40. Bamboo corner chair 41. French side chair 42. Few other miscellaneous chairs including ladder back with ball turnings and possibly a french-armed (upholstered) chair in that same photo 43. Grouping of chairs, including brown leather, a William & Mary arm chair, an antique oak arm chair 44. Antique cherry and maple desk 45. Chippendale side chair 46. William & Mary side chair 47. Possible grouping of other chairs 48. Primitive two (2) door wardrobe, Pennsylvania antique and rare-type varnish finish 49. Continental period desk with lid unattached 50. Two (2} drop leaf cherry stands (not sure) 51. Two (2} corner cupboards: one is a 12 light with arched top lights; and second is a narrow corner cupboard with an B light top 52. Walnut period Sheraton slant-top desk with four (4) drawers, Pennsylvania period desk 53. Open country display case with is antique which is keyed on the ends 54. Together there is an open kind of regency brown colored server 55. Period English wing chair 56. Mahogany server Page 3 of 11 57. Arm chair with figural tapestry 58. Large oval guild period over mantle mirror 59. Needle point Chippendale side chair 60. Doughbox on legs 61. Glass-top coffee table, I believe that was Hanredon 62. Bowed side artdeco display cabinet 63. Painted folding screen 64. Oriental folding screen (not sure on that one) 65. Period Sheraton chest 66. Continental four (4) drawer chest which is painted 67. Victorian walnut etagera which is a five (5) shelf open stand 68. Carved mahogany mirror, part of the new furniture 69. Two clocks: one is an antique Ithica clock; and the other is a grandmother clock and more contemporary 70. Grandmother clock 71. Ivory and black hall table with mirror on top in French-style, paint decorated 72. Victorian style pier mirror with guild base and mazble top 73. Samples of two (2) of the sets of new mahogany chairs which are on top of a custom three (3) part hepple white banquet table 74. Banded dining chairs 75. Bowed cane, french-style recamier 7b. Straight-legged dining table 77. Four (4) blue upholstered french-style chairs Page 4 of 11 78. Large scale carved mahogany lamp table 79. Victorian tilt-top table 80. Set of french-style chairs to be upholstered in what appears to be tan velvet 81. Set of ladder back, country-style chairs 82. Set of black decorated chairs 83. Beveled mahogany mirror with a figural on top, antique and a shell carved at the bottom 84. French-style server (I'm not sure about) 85. White painted mirror with figures 86. Antique guild mirror that is almost like pretzel carving on the outside edge of it 87. Walnut, one-drawer, Pennsylvania country table 88. Set of five or six (5-6) light colored or cane back dining chairs (I can only see one in the photo) 89. Set of black bamboo turned dining chairs 90. New mahogany marble top Victorian style table 91. Burl walnut top conference table 92. Custom inlaid corner cupboard with broken arch top 93. Soft wood, two (2) part, open-top pewter cupboard 94. Green vinyl retro sofa 95. One piece continental cupboard painted white with glass covered door top, turned feet 96. Danish modern, dresser-type cabinet with ratan boxed section on the right 97. Four (4) piece wicker set (not sure) 98. Pennsylvania house cherry chest on chest Page 5 of 11 99. Custom English Chippendale chest on chest 100. Period continental Bombay slant-type desk 101. Custom cherry slant-lid desk with two-door covered top 102. Carved figure of Babe Ruth 103. Mahogany antique lamp table with glass ball feet 104. Two lamps that are on top of the lamp table with glass ball feet 105. Oriental cabinet 106. Onyx insert guild 107. Ceiling fan 108. Reclining figure of a man reading tablet on wooden base (not sure, I'd have to see the tag) 109. Group of 7 pictures heading down the steps and I believe 5 are mine 110. Modern style pole lamp with spun-type shade 111. Carved beveled mirror, kind of a pickled cream finish 112. Black and gold artdeco-type mirror 113. Period mirror with reverse painting of a house 114. Contemporary cat picture of cats on a chair 115. Hanging black and gold candle sconce 116. Two (2) part baker break front with the doors that are unattached 117. Set of four (4) green painted french chairs: originally there were a set of 8 so I'm not sure if the 4 are some where else or what happened to them 118. Primitive ladder back high-chair 119. Unusual metal scroll-work head board Page 6 of 11 120. Child's red leather television chair 121. Floral wing chair with straight legs 122. Painted white french-style chair with blue floral upholstery 123. William & Mary style chair with cut velvet striped upholstery 124. Tall carved arm chair with red and orange flower upholstery 125. Black leather arm chair 126. Bar room Windsor and cherry 127. Brass fireplace fender 128. Leather-top, turn leg writing desk 129. Pair of oriental-style chairs in yellow upholstery 130, Bamboo, brass-turned fire screen 131. Onyx lamp 132. Assorted oriental pottery 133. Very tall carved, painted white Victorian gentlemen's chair 134. Carved Victorian brass easel 135. White painted upholstered foot stool 136. Nice banded Sheraton chest of drawers 137. Open teak oriental etagere 138. Painted white french-style chair with tan velvet upholstery 139. Tan tolling chair with a black painted frame 140. Oriental cabinet: 2 drawers over 2 covered doors 141. Baker mahogany dining table with boards Page 7 of 11 142. Tall mahogany custom canopy bed 143. Small scale leather-top knee hole desk 144. Light colored mahogany butler table 145. Asian oil-type lamp 146. Antique brass bucket (not sure) 147. Two (2) drawer walnut hanging shelf 148. Antique two (2) part mirror 149. Two (2) drawer pine wardrobe with drawer on bottom 150. Contemporary Asian tea tins 151. Black table with tin tray top (needs checked) 152. Pennsylvania dry sink base and the covered top is hopefully around somewhere 153. Upholstered square-legged foot stool, entirely upholstered 154. Another pillow top, french-style upholstered stool with light colored striped fabric 155. Metal and glass coffee table: chrome and glass base with glass top 156. Round top mahogany antique center table 157. Wood and wire bird cage 158. Couple of shaving mirrors 159. Saddlers bench 160. Contemporary glass-top console table on white base 161. Reproduction: country stand in red paint 162. Two (2) spider web mesh outdoor patio furniture which was part of the larger set 1b3. Lift-top antique bamboo sewing stand Page 8 of 11 164. Primitive tapered leg country stand 165. Hanging bamboo shelf 166. Round dish-top lamp table with pull-out drink slide 167. Green metal outdoor chaise lounge 168. White metal bamboo plant holder 169. Pair of mother of pearl inlaid single beds 170. Lion-faced, cast iron outdoor hanging that was part of a group of several others 171. Two part mirror painted black 172. 5' tall rectangular mirror with figural carving 173. Ornate small guild mirror 174. Small display shelf in walnut 175. Carved marble table light 176. Pair of cherry taborets 177. Oriental table light 178. Another table light 179. Painted white tete a tete 180. Inlaid satin wood stand 181. Small cherry Queen Anne table with fold over top 182. Tall Queen Anne pink damask covered wing chair 183. Two (2) English bar room chairs 184. Tall bent arm rocker with cane seat 185. Shaker-style arm chair Page 9 of 11 186. Contemporary red fabric sofa 187. Hyde-colored trunk 188. Black floral ottoman 189. Contemporary black bench with strips of wood 190. Pair of white marble-top lamp tables 191. Period empire sofa with down cushion, striped fabric 192. Banded inlaid dining table or large center table 193. Large kind-of three (3) part etched artdeco mirror 194. Contemporary needle point fire screen 195. Two (2) part corner cupboard with white painted top drawer 196. Period Pennsylvania Chippendale tall case clock 197. Cherry cupboard with diamond mullions 198. Smaller mahogany display cabinet 199. Drop-front period continental desk 200. Wood-framed wing chair by Stickley 201. Two (2) large stain-glass windows 202. Pair of striped arm chairs 203. Unusual white covered love seat 204. Large architectural two (2) part corner cupboard in red paint 205. Antique wicker platform rocker 206. Assortment of rugs 207. Danish modern wall unit Page 10 of 11 208. 6'-7' high carved guild mirror 209. Victorian tall guild wood pier mirror with figural head on the top 210. Another carved white occasional mirror 211. Carved blue upholstered arm chair 212. Long cherry harvest table 213. Bamboo turned planter 214. Unusual modern marble sculpture 215. Fret-carved English foot stool with slate insert 216. Ornate lamp table with brass beaded gallery 217. Remington bronze statue 218. Ornate majolica jardinere 219. French arm chair with mountain-top back in white upholstery 220. Pair of tall Chippendale chairs (extra high in scale: antique) 221. Black leather arm chair 222. Assortment of lamps 223. Fireplace tools 224. Cane seat and back fainting couch 225. Ornate fainting couch in blue upholstery * This item number three (3) has been sold and is no longer part of this Exhibit. The parties each reserve the right to prove ownership of the same. Page 11 of 11 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard WV Stewart Solicitor Williamr Aspinall Case Number vs. The Consignment Gallery, Inc. 2010-6553 SHERIFF'S RETURN OF SERVICE 11/05/2010 12:20 PM - Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that on November 5, 2010 at 1220 hours, he served a true copy of the within writ of seizure, in the above entitled action, upon the within named defendant, to wit: The Consignment Gallery, Inc., by making known unto Patricia Kraybill, owner and Adult in Charge, at 164 N Hanover Street, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. SO ANSWERS, November 05, 2010 s?R {- n RON D R ON, SHERIFF By Sh Harrison, Deputy (C; CoUi'. Suite Si e';ff. ie:eoso.xt, irc. SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Def)uty Richard W Stewart Solicitor William Aspinall Case NumWe-r' vs. The Consignment Gallery, Inc. 20165534 SHERIFF'S RETURN OF SERVICE 10/20/2010 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he made a diligent search and inquiry for the within named defendant to wit: The Consignment Gallery, Inc., but was unable to locate them in his bailiwick. He therefore returns the within Notice, Complaint in Replevin and Motion for Writ of Seizure Upon Notice and Hearing as not found as to the defendant The Consignment Gallery, Inc. Request for service at 164 N. Hanover Street, Carlisle, PA 17013 is locked and awaiting a final closing sale date. 10/21/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made -a diligent search and inquiry for the within named defendant, to wit: The Consignment Gallery, Inc. c/o Patricia Kraybill, but was unable to locate her in his bailiwick. He therefore deputized the Sheriff of York County, PA to serve the within Notice, Complaint in Replevin and Motion for Writ of Seizure Upon Notice and Hearing' according to law. 10/26/2010 08:50 AM Richard P. Keuerleber, Sheriff of York County, who being duly sworn according to law, states that on October 26, 2010 at 0850 hours this Notice, Complaint in Replevin and Motion for Writ of Seizure Upon Notice and Hearing upon defendant The Consignment Gallery, Inc. c/o Patricia Kraybill is returned not served per request from Attorney Luther E. Milspaw Jr. 10/26/2010 03:15 PM - Jason Vioral, Sergeant, who being duly sworn according to law, states that on October 26, 2010 at 1515 hours, he served a true copy of the within Notice, Complaint in Replevin and Motion for Writ of Seizure Upon Notice and Hearing, upon the within named defendant, to wit: The Consignment Gallery, Inc., by making known unto Seth Mosebey, Attorney for defendant at The Cumberland County Sheriffs Office, 1 Courthouse Square Room 303, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him personally the said true and correct4opy of the same. DEPUTY SHERIF=F COST: $57.84 November 08, 2010 SWERS, '7 RON R ANDERSON, SHERIFF SHERIFF'S OFFICE OF YORK COUNTY RichardP Keuerleber PETER J. MANGAN, ESQ. Sheriff Solicitor ?k1 Reuben B Zeager Richard E Rice, II Chief Deputy, Operations Chief Deputy, Administration WILLIAM ASPINALL vs: Case Number THE CONSIGNMENT GALLERY, INC., (et al.) 10-6553 CIVIL SHERIFF'S RETURN OF SERVICE 10/26/2010 SERVICE WITHDRAWN BY ATTORNEY AND RETURNED BY THE SHERIFF'S OFFICE. PER FAX FROM ATTORNEY ON OCTOBER 26, 2010. SHERIFF COST: $19.00 November 04, 2010 SO ANSWERS, RICHARD E. RICE II, AC ING SHERIFF RICHARD P KEUERLEBER, SHERIFF NOTARY Affirmed and subscribed to before me this 4t11 day of NOVEMBER 2010 COMMONVYEALTH OF E'SN`, _V4,.NIA NOTARIAL SEA 7 - LISA L. Th ORP YoR Y - i,?g_C CITY Of !ORK YOLK CO.. rF i Y I MY COMM'ISS. 'w EXPIRES A'; C. 12. 2013 OF THE PROTHONOTARY 2010 ROY 29 PM 4: 03 Christopher E. Rice, Esquire QUM Attorney I.D. No. 90916 QUANT Y MARTSON DEARDORFF WILLIAMS OTTO GILR MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff WILLIAM ASPINALL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2010-6553 THE CONSIGNMENT GALLERY, INC., : Defendant : CIVIL ACTION - LAW It is agreed that Defendant is granted an extension of time through December 6, 2010, in which to file an Answer. After the above date, a judgment of non pros or by default, as may be appropriate, may be entered upon Praecipe without fiirther notice. MILS By: I.D. No. 19226 130 State Street P.O. Box 946 Harrisburg, PA 17108-0946 Attorney for l.aintif Date: I ( Lc} MARTSON LAW OFFICES By: -5. oft4 Seth T. Mosebey, Es re I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Date: 11 /';0 /Ip FILED-OFFICE OF THE PROTHONOTARY F:\FILES\C1imts\14020 Kraybill\14020. Lms.6553 ?0ID DEC -3 PM 3' 32 Christopher E. Rice, Esquire CUMBERLAND COUNTY PENNSYLVANIA Attorney I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff WILLIAM ASPINALL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2010-6553 THE CONSIGNMENT GALLERY, INC., Defendant : CIVIL ACTION - LAW ANSWER TO COMPLAINT WITH NEW MATTER AND COUNTERCLAIM TO: WILLIAM ASPINALL and his attorney LUTHER E. MILSPAW, JR., ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes the Defendant, The Consignment Gallery, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and files its Answer to Complaint with New Matter and Counterclaim as follows: 1. Admitted. 2. Admitted. 3. After reasonable investigation, Defendant is without information or knowledge sufficient to form a belief as to the truth of the averments in this paragraph and the same are therefore denied and strict proof demanded at trial. 4. Admitted. 5. Denied as a conclusion of law and pursuant to Pa. R.C.P. 1029(e). By way of further response, it is denied that the parties operated under an oral understanding as Defendant and Plaintiff had a lease agreement and a Contract (the Contract is attached to Plaintiff's Complaint as Exhibit "A"). Exhibit "A" to the Complaint will be referred to herein as the Contract. 6. Denied. Defendant, through its agents, did not request certain accommodations of Plaintiff as Defendant began charging storage fees to Plaintiff by way of withholding checks and funds. Money was paid to Plaintiff for unexpired goods that sold. It is admitted that Defendant's business was slow beginning in 2007, but it is denied that, in return, Defendant withheld payments due to Plaintiff. It is admitted that checks, which were provided in some cases as an accounting, were provided with a reference to goods sold to third parties and goods purchased by the Defendant. 7. Denied as checks that were requested to be deposited were for direct purchases from Plaintiff. 8. Denied as the checks speak for themselves. By way of further response, denied pursuant to Pa. R.C.P. 1029(e). 9. Denied as no representations were made as stated. By way of further response, Defendant is without information or knowledge sufficient to form a belief as to the truth of the averment as it relates to Plaintiff's thoughts in this paragraph and the same are therefore denied and strict proof demanded at trial. 10. Denied as a conclusion of law. By way of further response and after reasonable investigation, Defendant is without information or knowledge sufficient to form a belief as to the truth of the averments in this paragraph and the same are therefore denied and strict proof demanded at trial. By way of further response, Plaintiff was asked by Defendant to remove his goods, which he failed to do and ignored said requests. 11. After reasonable investigation, Defendant is without information or knowledge sufficient to form a belief as to the truth of the averments in this paragraph and the same are therefore denied and strict proof demanded at trial. By way of further response, the documents speak for themself. Denied pursuant to Pa. R.C.P. 1029(e). 12. Denied as the letter and Contract speak for themselves. 13. Denied. Plaintiff was provided with a copy upon execution of the same. Further, it is denied as a conclusion of law. Plaintiff executed the Contract (referred to in the Complaint as the Alleged Contract) knowing that the arrangements set forth therein would be enforced and executed the same agreeing to those terms. 14. Denied as a conclusion of law. By way of further response, it is denied that no consideration was provided as Plaintiff was permitted to have goods sold by Defendant and profit by the same. 15. Denied as a conclusion of law. By way of further response, it is denied that the Contract is not the binding agreement between the parties and no representations were false. 16. Denied as stated. By way of further response, Defendant was unable to provide access because of certain issues that unexpectedly arose. Defendant was not obligated to provide access. 17. Admitted. 18. Denied pursuant Pa. R.C.P.1029(e). By way of further response, it is denied that any of the goods identified by Plaintiff were Plaintiff's goods. Rather, they were alleged to be goods provided by Plaintiff to be consigned. Further, Plaintiff took no photographs as all photographs taken were by counsel for Plaintiff and counsel for Defendant. All goods on the first floor were property of Defendant because they were purchased by Defendant or considered to be property of the Defendant because the goods were expired according to the Contract. 19. Denied as stated. By way of further response, Defendant's counsel notified Plaintiff's counsel that the sale would be postponed because of the threat by Plaintiff that Plaintiff would file for an injunction and delay the sale 20. Denied as the document speaks for itself. By way of further response, the list purports to be goods which Plaintiff believes he consigned but strict proof is demanded at trial. 21. Denied as the document speaks for itself. By way of further response, the list purports to be goods which Plaintiff believes he consigned but strict proof is demanded at trial. 22. Admitted that Kraybill is an authorized agent of Defendant but denied as to when Kraybill was serving as an agent since no time period is provided. 23. Denied as a conclusion of law. 24. Denied as stated since Defendant is only bound by Kraybill when she acts in her capacity as an agent. 25. Denied as a conclusion of law. 26. Denied. Plaintiff has obtained possession and control over the goods, which goods are owned by Defendant. 27. Denied. Plaintiff was provided access to enter the Premises. 28. Denied as a conclusion of law. Plaintiff does not own any personal property in possession of Defendant. 29. Denied as a conclusion of law. By way of further response, Plaintiff does not own the personal property. 30. Denied. The value of the goods are in excess of $50,000.00. 31. Admitted. 32. Admitted. 33. Denied. Defendant's position is valued and based off of a valid Contract. 34. Denied. Plaintiff does not own property in possession of Defendant. 35. Denied. A separate action was filed, but Kraybill is not a party. WHEREFORE, Defendant demands that the expired goods as listed on Exhibit "B" of the Complaint, and any other goods later claimed by Plaintiff to be his, should be deemed the property of Defendant and returned to Defendant, or an amount be awarded to Defendant equal to that of the value of the goods, or in the alternative, that Defendant is awarded storage fees for the expired goods. In both cases, Defendant requests damages in excess of the arbitration limits related to loss of revenue, postponing the going out of business sale, and interference, and costs of suit, interest, and any other relief this Court deems just. NEW MATTER 36. Paragraphs 1-35 are incorporated herein by reference as if fully set forth below. 37. On or about the date of the Contract, the Plaintiff entered into the Contract with Defendant. 38. The Contract states, among other things, that Plaintiffhas "read the above statements and agree[s] to accept the conditions stated therein as applicable to all articles [Plaintiff] leave[s] on consignment for sale by [Defendant]." 39. The Contract, among other things, provides for a commission being paid to Defendant. 40. The Contract also provides for storage fees and that goods would become the property of the Defendant if they were not removed by Plaintiff within the specific time frame as outlined within the Contract being potentially four (4) months. Such goods, if not removed, were treated as "expired goods" and the property of Defendant, or would be subject to storage fees of $10 per day. 41. At all relevant times, Plaintiff was subject to the terms of the Contract. 42. Under the Contract, Defendant would retain a percentage from the sale of unexpired goods. In certain cases with Plaintiff, Defendant would dispose of the expired goods, or sell the expired goods and retain all ofthe proceeds to apply towards costs associated with abandoned goods, including, but not limited to trash removal, storage fees, etc. 43. Plaintiff had left certain goods at Defendant's place of business for years. 44. Plaintiff cannot claim that such goods are still owned by Plaintiff if such goods are expired and not reclaimed by Plaintiff within the time frame as set forth within the Contract. 45. Such expired goods would either become the property of Defendant or be subject to a storage fee. 46. If Plaintiff claims that such expired goods were being stored by Defendant, then Plaintiff owes Defendant storage fees in excess of the arbitration limits. 47. If Plaintiff claims no storage fees are owed, then the expired goods are solely owned by Defendant and Plaintiff must return the same to Defendant. 48. Defendant has complied with all terms under the Contract. 49. Plaintiff has taken advantage of the relationship between the parties and would often drop off damaged goods and request that Defendant's employees fix the same without a charge to him. 50. Plaintiff was told on numerous occasions to pick up his expired goods, but failed to do so. Plaintiff continued to drop off new goods to be consigned without the permission or knowledge of the owner of Defendant. 51. Plaintiff has interrupted Defendant's business by making bold allegations that money was owed and certain goods within Defendant's possession are the property of Plaintiff. 52. During Defendant's attempted going out of business sale scheduled in September 2010, Plaintiff threatened to file for injunctive relief immediately before the sale, which forced Defendant to postpone the sale. 53. Defendant has incurred substantial damages as a result of having to postpone the sale, including, but not limited to, advertising costs, salaries, and rent. 54. Defendant lost potential revenue by not being able to sell expired goods at its going out of business sale in November 2010. 55. Plaintiff has attached documents to its Complaint that are perceived as settlement negotiations and, therefore, may not be used as evidence. 56. Plaintiff is prohibited by the parol evidence rule and other laws from arguing that an oral agreement was in place as the four corners of the Contract control all terms and agreements between the parties. 57. Plaintiff's claims are barred by the statute of limitations. 58. At all relevant times, Plaintiff consented and agreed to a reduction in the original price of the goods consigned. 59. At all relevant times, Plaintiff consented and agreed to paying storage fees. 60. In the past and at a prior location, Plaintiff rented space from Defendant in lieu of storage fees. At Defendant's new location on Hanover Street, Plaintiff and Defendant agreed to terms that would provide for storage fees and, therefore, renting space was not necessary. 61. Plaintiff had entered into prior written agreements with Defendant to lease space and sell goods for a commission. 62. At no time while the prior written agreements were in place did Plaintiff make a claim that those agreements were invalid, unenforceable or changed due to course of dealings. 63. At no relevant time were Plaintiff and Defendant business partners. Plaintiff was a customer of Defendant. 64. Plaintiff used Defendant's staff to perform services for Plaintiff without authorization and without paying for such services by having them do such things as unpack large containers of goods, repair damaged goods, and pick up goods from other locations. Plaintiff also maintained a sexual relationship with a staff member of Defendant which negatively affected Defendant's business. Throughout the business relationship of Plaintiff and Defendant, Plaintiff would take advantage of Defendant to the detriment of Defendant and its business. 65. Beginning in 2008, Defendant advised Plaintiff that he was not to drop off any other goods unless approved by Defendant, but Plaintiff refused to listen. Plaintiff would continue to drop off goods thereafter and while Defendant's owner was offsite. Defendant only wanted to purchase certain goods from Plaintiff rather than consign his goods. 66. Defendant notified Plaintiff that money was due based upon storage fees and Plaintiff had failed and continues to refuse to pay said fees. 67. Because of Plaintiff's unauthorized use of retail and warehouse space, Defendant has lost revenue in excess of $500,000.00 because Defendant could not obtain additional goods from other vendors or consignors. Defendant business is not to store goods, but to move goods in and out of the showroom to keep customers coming back on a regular basis to see what new items are available. Plaintiff removed this ability and disrupted Defendant's operation by failing to remove certain goods over the years. 68. Defendant has incurred costs in excess of $5,000 for disposal of packing materials for goods unauthorized to be dropped off by Plaintiff or for Plaintiff's damaged goods that could not be repaired and were left at Defendant's place of business. WHEREFORE, Defendant demands that the expired goods as listed on Exhibit "B" of the Complaint, and any other goods later claimed by Plaintiff to be his, should be deemed the property of Defendant and returned to Defendant, or an amount be awarded to Defendant equal to that of the value of the goods, or in the alternative, that Defendant is awarded storage fees for the expired goods. In both cases, Defendant requests damages in excess of the arbitration limits related to loss of revenue, postponing the going out of business sale, and interference, and costs of suit, interest, and any other relief this Court deems just. COUNTERCLAIM BREACH OF CONTRACT 69. Paragraphs 1-68 are incorporated herein by reference as if fully set forth. 70. Plaintiff has breached the Contract and is liable to Defendant thereunder. 71. Plaintiff had a duty to perform under the Contract, which Plaintiff failed to uphold causing substantial damages to Plaintiff. WHEREFORE, Defendant demands that the expired goods as listed on Exhibit "B" of the Complaint, and any other goods later claimed by Plaintiff to be his, should be deemed the property of Defendant and returned to Defendant, or an amount be awarded to Defendant equal to that of the value of the goods, or in the alternative, that Defendant is awarded storage fees for the expired goods. In both cases, Defendant requests damages in excess of the arbitration limits related to loss of revenue, postponing the going out of business sale, and interference, and costs of suit, interest, and any other relief this Court deems just. UNJUST ENRICHMENT 72. Paragraphs 1-71 are incorporated herein by reference as if fully set forth. 73. If the Court finds that no contract exists, then Plaintiff has been unjustly enriched by not paying storage fees, by retaining possession of expired goods, and by utilizing staff without permission and for Plaintiff's personal gain. WHEREFORE, Defendant demands that the expired goods as listed on Exhibit "B" of the Complaint, and any other goods later claimed by Plaintiff to be his, should be deemed the property of Defendant and returned to Defendant, or an amount be awarded to Defendant equal to that of the value of the goods, or in the alternative, that Defendant is awarded storage fees for the expired goods. In both cases, Defendant requests damages in excess of the arbitration limits related to loss of revenue, postponing the going out of business sale, and interference, and costs of suit, interest, and any other relief this Court deems just. INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONSHIP AND LOSS OF BUSINESS REVENUE 74. Paragraphs 1-73 are incorporated herein by reference as if fully set forth. 75. Plaintiff's threat of stopping Defendant's going out of business sale in September 2010 has caused Defendant to incur damages. 76. Defendant's inability to sell certain goods that were claimed to be owned by Plaintiff has caused Defendant to lose potential revenue because such goods were not included in the November 2010 going out of business sale. In addition, having all goods available to sell at the November 2010 sale would have provided Defendant with a better selection. 77. Because of Plaintiff's unauthorized use of retail and warehouse space, Defendant has lost revenue in excess of $500,000.00 because Defendant could not accept new goods to consign, which is essential with Defendant's business. 78. Defendant has incurred costs in excess of $5,000 for disposal of packing materials for goods unauthorized to be dropped off or damaged goods. WHEREFORE, Defendant demands that the expired goods as listed on Exhibit "B" of the Complaint, and any other goods later claimed by Plaintiff to be his, should be deemed the property of Defendant and returned to Defendant, or an amount be awarded to Defendant equal to that of the value of the goods, or in the alternative, that Defendant is awarded storage fees for the expired goods. In both cases, Defendant requests damages in excess of the arbitration limits related to loss of revenue, postponing the going out of business sale, and interference, and costs of suit, interest, and any other relief this Court deems just. TRESPASS TO CHATTELS 79. Paragraphs 1-78 are incorporated herein by reference as if fully set forth. 80. Plaintiff interfered with Defendant's right to possession of the expired goods and other goods throughout the past five years. 81. Plaintiff purposely made a claim on the expired goods knowing that Defendant was having a going out of business sale. 82. Plaintiff caused damages to Defendant by removing goods from the sale, which could have been sold to Defendant's customers for a profit and provided Defendant with more inventory. 83. Plaintiff is in possession of a majority of the expired goods as outlined on Exhibit "B" of the Complaint. WHEREFORE, Defendant demands that the expired goods as listed on Exhibit "B" of the Complaint, and any other goods later claimed by Plaintiff to be his, should be deemed the property of Defendant and returned to Defendant, or an amount be awarded to Defendant equal to that of the value of the goods, or in the alternative, that Defendant is awarded storage fees for the expired goods. In both cases, Defendant requests damages in excess of the arbitration limits related to loss of revenue, postponing the going out of business sale, and interference, and costs of suit, interest, and any other relief this Court deems just. MARTSON LAW OFFICES By: ?U/, ?, Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: /0?/--50 VERIFICATION The foregoing Answer with New Matter and Counterclaim is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. tallll la 111QyU111 CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, hereby certify that a copy of the foregoing Answer was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Luther E. Milspaw, Jr., Esquire 130 State Street P.O. Box 946 Harrisburg, PA 17108-0946 MARTSON LAW OFFICES By: M". Price Ten Last High Street Carlisle, PA 17013 (717) 243-3341 Dated: /-Z/3/f O 411LED-OFFiGE E PI OTI'Dua? IrAt'y M9 PEC 16 PM 2: 59 WILLIAM ASPINALL, Plaintiff VS. THE CONSIGNMENT GALLERY, INC., and PATRICIA MARBAIN KRAYBILL, Defendants Civil Action - Law WILLIAM ASPINALL, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. Docket No. 2010-6553 THE CONSIGNMENT GALLERY, INC., : Defendant In Replevin MOTION TO COMPEL AND NOW, comes Plaintiff, WILLIAM ASPINALL, by and through his attorney, Luther E. Milspaw, Jr, Esquire, and files this Motion TO Compel with regard to discovery served upon the Defendant: 1. The moving party herein is the Plaintiff. The respondent herein is the Defendant. 2. On October 27, 2010, Plaintiff, by his counsel, served upon Defendant a Request for Production of Documents, a copy of which is attached hereto and marked as Exhibit "A". 3. The Request for Production of Documents were served upon Defendant's counsel 77UMBERLAND COUI T'3 PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 2010-5529 0 of record. 4. To date, Defendant has not responded to the discovery and has not filed any objections to it. 5. Plaintiff wishes to proceed with this action and, to do so, he needs the information addressed in his Request for Production of Documents. Without that information, and without the Defendant's response to his discovery, his ability to proceed with the case are bing prejudiced and damaged. 6. Judge Hess has entered orders previously in this matter. 7. Defendant does not concur in Plaintiff's request for relief. WHEREFORE, Plaintiff prays this court to, by order, compel Defendant to fully response to the discovery described in this Motion. R spe tfullY sub itted I LUTHER ZVIILSPAW, Jr. Attorney ID No. 19226 130 State Street P.O. Box 946 Harrisburg, PA 17108-0946 (717) 236-3141 Attorney for Plaintiff Dated: December 15, 2010 VERIFICATION I hereby verify that the statements made in this document are true and correct. I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Dated: December 15, 2010 Exhibit "A" WILLIAM ASPINALL, :IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA VS. Docket No. 2010-5529 THE CONSIGNMENT GALLERY, INC., : Defendant Civil Action - Law C WILLIAM ASPINALL, :IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA VS. Docket No. 2010-6553 THE CONSIGNMENT GALLERY, INC., : Defendant In Replevin REQUEST FOR PRODUCTION OF DOCUMENTS Plaintiff, WILLIAM ASPINALL, by and through his attorney, Luther E. Milspaw, Jr., propound, pursuant to Pennsylvania. Rule of Civil Procedure 4009, Plaintiff's Request For Production of Documents for the purposes of inspection and copying at the Law Office of Luther E. Milspaw, Jr., 130 State Street, P.O. Box 946, Harrisburg, PA 17101 within thirty (30) days of service hereof. DEFINITIONS AND INSTRUCTIONS "And" and "or" shall be construed conjunctively and disjunctively. 2. "Document" means any letter, correspondence, email, computer record whether in hard copy or digital copy, memoranda, inter-office communication, intra-office communication, log book, consignment book, ledger sheet, agreement, leases, consignment agreements, agreements, minute, report, note, schedule, check, check ledger, draft, diary, log, telegram, drawing, picture, table, graph, chart, map, or survey, including the originals and working drafts of all of the above and any copies thereof which are different from the original by way of interlineation or notation, any transcript or summary of the foregoing and any other tangible representation of information which may be retrievable. 3. If you claim that the subject matter of a document is privileged, you are required to identify the document by stating the following information: a. Its nature (e.g., letter, memorandum, etc.); b. Its date (or if it bears no date, the date when it was prepared); C. The name, address, employer and job position of the signer or signers (or if there is no signer, of the person who prepared it); d. The name, address, employer, and j ob position of the person, if any, to whom the document was sent; e. The name, address, employer, and job position of each person known or believed to have originals or copies of the document; or f. A brief statement of the subject matter of the document; and g. State the ground or basis on which you contend that the document is privileged. 4. If you do not have possession, custody, or control ofa document requested, but know who does have possession, custody, or control, you are required to identify the document and the person who has possession, custody, or control in the manner requested in subparagraph 4 above. 5. "You" and "your" refers to the Defendant, THE CONSIGNMENT GALLERY, INC. 6. "Aspinall" refers to Plaintiff WILLIAM ASPINALL. 7. "Kraybill" refers to Patricia Marbain Kraybill. DOCUMENTS AND THINGS REQUESTED 1. Any and all documents which embody, evidence, relate to or pertain to the items and goods you took on consignment from Plaintiff William Aspinall for the period from January 1, 2005 to present. 2. Any and all documents which embody, evidence, relate to or pertain to the items and goods that had originally been taken by you on consignment from Plaintiff William Aspinall for the period from January 1, 2005 to present, that you sold during that period. Any and all documents which embody, evidence, relate to or pertain to the ID number, description, original price, mark down percentages or percentage off original prices, quantity, sales price, commission calculation, and net amount due to Plaintiff William Aspinall, of each of the items and goods that had originally been taken on consignment by you from Plaintiff William Aspinall for the period from January 1, 2005 to present, that you sold during that period. 4. Any and all documents which embody, evidence, relate to or pertain to the items and goods that had originally been taken on consignment by you from Plaintiff William Aspinall for the period from January 1, 2005 to present, that remain located on your business premises at 164 North Hanover Street, Carlisle, Cumberland County, Pa. 17013. Any and all documents which embody, evidence, relate to or pertain to the items and goods that had originally been taken on consignment from Plaintiff William Aspinall for the period from January 1, 2005 to present, that remain in your possession but are not located at your business premises at 164 North Hanover Street, Carlisle, Cumberland County, PA 17013. 6. Any and all documents which embody, evidence, relate to or pertain to the items and goods you or any of your employees or officers bought from Plaintiff William Aspinall for the period from January 1, 2005 to present. 7. Any and all documents which embody, evidence, relate to or pertain to the items and goods you claim were abandoned by Plaintiff William Aspinall that had originally been taken on consignment from Plaintiff William Aspinall for the period from January 1, 2005 to present. 8. Any and all documents which embody, evidence, relate to or pertain to storage fees you have charged the Plaintiff William Aspinall for items and goods that had originally been taken on consignment from Plaintiff William Aspinall for the period from January 1, 2005 to present. 9. Any and all documents which embody, evidence, relate to or pertain to the names, addresses, phone numbers, email addresses and other contact information of all individuals or entities who consigned items and goods to you for the period from January 1, 2005 to present. 10. Any and all documents which embody, evidence, relate to or pertain to agreements, whether written or oral, that you have had with individuals or entities who consigned items and goods to you for the period from January 1, 2005 to present. 11. Any and all documents which embody, evidence, relate to or pertain to agreements, whether written or oral, that you have with the owner/lessor of your business premises at 164 North Hanover Street, Carlisle, Cumberland County, PA. 17013. 12. Any and all documents which embody, evidence, relate to or pertain to the names, addresses, phone numbers, email addresses and other contact information of all individuals whom you employed, or whom you engaged to work for you as independent contractors, for the period from January 1, 2005 to present. 13. Any and all documents which embody, evidence, relate to or pertain to the names, addresses, phone numbers, email addresses, and other contact information of all banks and other financial institutions with which you have accounts, including without intending to limit, PNC Bank NA and Pennsylvania State Bank, for the period from January 1, 2005 to present. 14. Any and all documents which embody, evidence, relate to or pertain to the names, addresses, phone numbers, email addresses, and other contact information of all banks and other financial institutions to which you submitted any applications for loans or from which you received or guaranteed a loan, whether secured or unsecured, and any and all loan applications with accompanying documents submitted to any and all such banks and other financial institutions, for the period from January 1, 2005 to present. 15. Any and all documents which embody, evidence, relate to or pertain to the income, revenue, and expenses of your business for the period from January 1, 2005 to present. 16. Any and all documents which embody, evidence, relate to or pertain to bank account ledgers for all your accounts, inc such electronic form as you maintain it (QuickBooks, etc.) for the period from January 1, 2005 to present. 17. Any and all documents which embody, evidence, relate to or pertain to the assets and liabilities of your business for the period from January 1, 2005 to present. 18. Any and all documents which embody, evidence, relate to or pertain to salaries, benefits, and loans you have made to any shareholder, director, officer and/or employee of your business for the period from January 1, 2005 to present. 19. A copy of, and any and all documents which embody, evidence, relate to or pertain to, your federal, state and local tax returns for all taxing authorities to which you filed or should have filed a return. 20. All written admissions or statements against interest which you claim were made by Plaintiff, William Aspinall. Attorney ID No. 130 State Street Harrisburg, PA 17108-0946 (717) 236-3141 Attorney for Plaintiff Dated: October 27, 2010 P.O. Box 946 WILLIAM ASPINALL, JN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA VS. : Docket No. 2010-5529 THE CONSIGNMENT GALLERY, INC., : Defendant Civil Action - Law WILLIAM ASPINALL, JN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA VS. Docket No. 2010-6553 THE CONSIGNMENT GALLERY, INC., : Defendant In Replevin CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the above Request for Production of Documents upon all counsel/parties of record by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, on the 27' day of October, 2010, addressed as follows: Christopher E. Rice, Esquire Martson Deardorff Williams Otto Gilroy & Faller Ten East High Street Carlisle, PA 17013 LUTHER E. MILS'PA. Attorney ID No. 192 130 State Street P.O. Box 946 Harrisburg, PA 17108-0946 (717) 236-3141 Attorney for Plaintiff f WILLIAM ASPINALL, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. Docket No. 2010-5529 THE CONSIGNMENT GALLERY, INC., and PATRICIA MARBAIN KRAYBILL, Defendants Civil Action - Law WILLIAM ASPINALL, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. Docket No. 2010-6553 THE CONSIGNMENT GALLERY, INC., : Defendant In Replevin CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the above Motion to Compel by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, on the 15' day of December 2010, addressed as follows: Christopher E. Rice, Esquire Martson Deardorff Williams Otto Gilroy & Faller Ten East High Street Carlisle, PA 17013 submitted, ate. TARA L. SWARTZ, Paralegal Law ffice of Luther E. Milspaw, Jr. State Street P.O. Box 946 Harrisburg, PA 17108-0946 (717) 236-3141 U" y FILED-OFF IC'. C"7 THIC, 201 D D"C 16 PM 2:1+ 7 CUMBERLAND CvLl,aT ,f PENNSYLVANIA Luther E. Milspaw, Jr., Esquire Attorney ID No. 19226 130 State Street, P.O. Box 946 Attorney for Plaintiff Harrisburg, PA 17108-0946 (717) 236-3141 FAX (717) 236-0791 Email: LuthermilsnawQmilsnawlawfirm.com WILLIAM ASPINALL, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. Docket No. 2010-6553 THE CONSIGNMENT GALLERY, INC., : Defendant In Replevin PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIMS AND NOW, comes Plaintiff, WILLIAM ASPINALL, by and through his attorney, Luther E. Milspaw, Jr, Esquire, and preliminarily objects to Defendant's Answer to Complaint with New Matter and Counterclaim (hereinafter "pleading"), as follows: Pennsylvania Rule of Civil Procedure No 1029, entitled "Denial. Effect of Failure to Deny" provides at subparagraph (e): "(e) In an action seeking monetary relief for bodily injury, death or property damage, averments in a pleading to which a responsive pleading is required may be denied generally except the following averments of fact which must be denied specifically: (1) averments relating to the identity of the person by whom a material act was committed, the agency or employment of such person and the ownership, possession or control of the property or instrumentality involved; (2) if a pleading seeks additional relief, averments in support of such other relief; and (3) averments in preliminary objections." 2. This action is not an action seeking monetary relief for bodily injury, death or property damage, and the balance of the provisions of Pa. R.C.P. No 1029(e) do not apply to this action. 3. In Paragraphs 5, 8, 11, and 18 of Defendant's pleading, Defendant avers Pa. R.C.P. No 1029(e) as a basis of denial of Plaintiff's allegations. Said averments fail to conform to rule of court and are legally insufficient, pursuant to Pa. R.C.P. Rule 1028(a) (2) and (4), respectively. 4. Pennsylvania Rule of Civil Procedure No 1082, entitled "Counterclaim. Lien. Conditional Verdict" provides in subparagraph (a): "(a) A claim secured by a lien on the property may be set forth as a counterclaim. No other counterclaim may be asserted." Defendant has averred four counterclaims sounding in: (1) Breach of Contract; (2) Unjust Enrichment; (3) Intentional Interference with Business Relationship and Loss of Business Revenue; and (4) Trespass to Chattels. Each of these counterclaims fail to conform to rule of court and are legally insufficient, pursuant to Pa. R.C.P. Rule 1028(a) (2) and (4), respectively. 6. Pennsylvania Rule of Civil Procedure No 1019(g) entitled "Contents of Pleadings. General and Specific Averments"provides in subparagraph (g): "(g) Averments of time, place, and items of special damage shall be specifically stated." 7. In Paragraphs 54, 64, 67, 68, 77 and 78 of Defendant's pleading, Defendant avers "lost potential revenue," or "lost revenue in excess of $500,000.00", or "incurred costs in excess of $5,000.00," without any specificity as to time, place and items 2 of such special damage. Said averments fail to conform to rule of court and are legally insufficient, pursuant to Pa. R.C.P. Rule 1028(a) (2) and (4), respectively. 8. In Paragraph 64 of Defendant's pleading, Defendant avers that "Plaintiff also maintained a sexual relationship with a staff member of Defendant which negatively affected Defendant's business." Said averment is scandalous and impertinent and should be stricken; and is without any specificity as to time, place and/or items of such special damage. Said averments fail to conform to rule of court and are legally insufficient, pursuant to Pa. R.C.P. Rule 1028(a) (2) and (4), respectively. 9. Pennsylvania Rule of Civil Procedure No 1019(i) requires the pleader to attach a copy of all writings upon which it bases any claim or defense. 10. In Paragraph 61 of Defendant's New Matter, Defendant refers to "prior written agreements" upon which it subsequently relies as part of its defense. Said averment fails to conform to rule of court and is legally insufficient, pursuant to Pa. R.C.P. Rule 1028(a) (2) and (4), respectively. 3 4 WHEREFORE, Plaintiff requests this Honorable Court to strike Defendant's Answer to Complaint with New Matter and Counterclaim or in the alternative, order the Defendant to amend its said pleading and such other relief as this Court shall deem just. LUTHER L: MILSM , Jr. Attorney ID No. 1922 130 State Street P.O. Box 946 Harrisburg, PA 17108- (717) 236-3141 Attorney for Plaintiff Dated: December 14, 2010 4 WILLIAM ASPINALL, Plaintiff vs. THE CONSIGNMENT GALLERY, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 2010-6553 In Replevin CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the above Plaintiff's Preliminary Objections to Defendant's Answer to Complaint with New Matter and Counterclaim upon all counsel/parties of record by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, on the 14' day of December 2010, addressed as follows: Christopher E. Rice, Esquire Martson Deardorff Williams Otto Gilroy & Faller Ten East High Street Carlisle, PA 17013 R pectfully GLSPA 'tted, LUTH , Jr Attorney ID No. 19226 130 State Street P.O. Box 946 Harrisburg, PA 17108-0946 (717) 236-3141 Attorney for Plaintiff w: .? NA --Oz ? rn r -n PRAECIPE FOR LISTING CASE FOR ARGUMENT , q rv , :a ? TO THE PROTHONOTARY OF CUMBERLAND COUNTY: - C-, Please list the within matter for the next Argument Court. •A•'1C ?C'IC?'7k'?"?C'k'JC•?••A••?•'A'71"?C 7?''1C 71C'fC7?'?C'1C'1C?C'!f'?C 7ti'x'?C ?G'?'7Y'1G'1C 7?C*7?C ?C•A•'fC'?C'?C ?C ?C ?C ?C ?C 7?C'A"?C 7?C 7t'**`?/? - ., WILLIAM ASPINALL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VS. THE CONSIGNMENT GALLERY, INC., Defendant Docket No. 2010-6553 : In Replevin 1. State matter to be argued: Preliminary Objections of Plaintiffs to Defendant's Answer with New Matter. 2. Identify counsel who will argue case: a. For Plaintiff. Luther E. Milspaw, Jr., Esquire 130 State Street P.O. Box 946 Harrisburg, PA 17101 b. For Defendant: Christopher E. Rice, Esquire Martson Deardorff Williams Otto Gilroy & Faller Ten East High Street Carlisle, PA 17013 3. 1 will notify all parties in writing within two (2) days that this case has been listed for argument. 4. Argument Court Date: January 14, 2011. EUTHER , Attorney ID No. 19226 130 State Street P.O. Box 946 Harrisburg, PA 17108-0946 (717) 236-3141 tpectfully subm' ed, i' E SP W Dated: December 20, 2010 7 -• pEC2020101? 1 WILLIAM ASPINALL, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. Docket No. 2010-5529 THE CONSIGNMENT GALLERY, INC., and PATRICIA MARBAIN KRAYBILL, Defendants Civil Action - Law WILLIAM ASPINALL, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. Docket No. 2010-6553 THE CONSIGNMENT GALLERY, INC., Defendant In Replevin ORDER OF COURT AND NOW this Z1' day of , 20 to , upon consideration of the attached Motion to Compel, the Defendant is hereby ordered and directed to file a verified response to Plaintiff's Request for Production of Documents within 2 o_ day of service of this order. BY THE COURT: MM rn M, XM -©r- Distribution: tnr Ica Christopher E. Rice, Esquire (Attorney for Defendant) Ten East High Street, Carlisle, PA 17013 Luther E. Milspaw, Jr., Esquire (Attorney for Plaintiff) 130 State Street, Harrisburg, PA 17101 A t 1\-i, I i o t FAFa,ES\Clients\14020Kraybill\14020.1.ans.6553.amendedl.wpd tC, r•. i' Christopher E. Rice, Esquire Attorney I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff WILLIAM ASPINALL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2010-6553 THE CONSIGNMENT GALLERY, INC., : Defendant : CIVIL ACTION - LAW FIRST AMENDED ANSWER TO COMPLAINT WITH NEW MATTER TO: WILLIAM ASPINALL and his attorney LUTHER E. MILSPAW, JR., ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes the Defendant, The Consignment Gallery, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and files its Answer to Complaint with New Matter as follows: 1. Admitted. 2. Admitted. 3. After reasonable investigation, Defendant is without information or knowledge sufficient to form a belief as to the truth of the averments in this paragraph and the same are therefore denied and strict proof demanded at trial. 4. Admitted. 5. Denied as a conclusion of law. By way of further response, it is denied that the parties operated under an oral understanding as Defendant and Plaintiff had entered into numerous agreements, including, but not limited to, the Contract that is attached to Plaintiff's Complaint as Exhibit "A." Attached hereto as Exhibit "A" is the Contract, a lease agreement dated October 1, 2003, and a contract executed in 1996, along with a letter titled "Our Yearly Come to Jesus Meeting" presented September 2003. Plaintiff and Defendant entered into a contract in 2001 (the "2001 Contract") for which Defendant has been unable to locate as of this date. The 2001 Contract was similar to the Contract and had a 1 /3 commission being paid to Defendant upon the sale of consigned goods. 6. Denied. Defendant, through its agents, did not request certain accommodations of Plaintiff as Defendant began charging storage fees to Plaintiff by way of withholding checks and funds. Money was paid to Plaintiff for unexpired goods that sold. It is admitted that Defendant's business was slow beginning in 2007, but it is denied that, in return, Defendant withheld payments due to Plaintiff. It is admitted that checks, which were provided in some cases as an accounting, were provided with a reference to goods sold to third parties and goods purchased by the Defendant. 7. Denied as checks that were requested to be deposited were for direct purchases from Plaintiff. 8. Denied as the checks speak for themselves. By way of further response, due to Plaintiff failing to remove his expired items, the amount owed to Plaintiff was not representative of the amounts on the checks. In fact, Plaintiff owes money to Defendant. 9. Denied as no representations were made as stated. By way of further response, Defendant is without information or knowledge sufficient to form a belief as to the truth of the averment as it relates to Plaintiff's thoughts in this paragraph and the same are therefore denied and strict proof demanded at trial. 10. Denied as a conclusion of law. By way of further response and after reasonable investigation, Defendant is without information or knowledge sufficient to form a belief as to the truth of the averments in this paragraph and the same are therefore denied and strict proof demanded at trial. By way of further response, Plaintiff was asked by Defendant to remove his goods, which he failed to do and ignored said requests. 11. After reasonable investigation, Defendant is without information or knowledge sufficient to form a belief as to the truth of the averments in this paragraph and the same are therefore denied and strict proof demanded at trial. By way of further response, the documents speak for themself. 12. Denied as the letter and Contract speak for themselves. 13. Denied. Plaintiff was provided with a copy upon execution of the same. Further, it is denied as a conclusion of law. Plaintiff executed the Contract (referred to in the Complaint as the Alleged Contract) knowing that the arrangements set forth therein would be enforced and executed the same agreeing to those terms. 14. Denied as a conclusion of law. By way of further response, it is denied that no consideration was provided as Plaintiff was permitted to have goods sold by Defendant and profit by the same. 15. Denied as a conclusion of law. By way of further response, it is denied that the Contract is not the binding agreement between the parties and no representations were false. 16. Denied as stated. By way of further response, Defendant was unable to provide access because of certain issues that unexpectedly arose. Defendant was not obligated to provide access. 17. Admitted. 18. Denied. It is denied that any of the goods identified by Plaintiff were Plaintiff's goods. Rather, they were alleged to be goods provided by Plaintiff to be consigned. Further, Plaintiff took no photographs as all photographs taken were by counsel for Plaintiff and counsel for Defendant. All goods on the first floor were property of Defendant because they were purchased by Defendant or considered to be property of the Defendant because the goods were expired according to the Contract. 19. Denied as stated. By way of further response, Defendant's counsel notified Plaintiff's counsel that the sale would be postponed because of the threat by :Plaintiff that Plaintiff would file for an injunction and delay the sale 20. Denied as the document speaks for itself. By way of further response, the list purports to be goods which Plaintiff believes he consigned but strict proof is demanded at trial. 21. Denied as the document speaks for itself. By way of further response, the list purports to be goods which Plaintiff believes he consigned but strict proof is demanded at trial. 22. Admitted that Kraybill is an authorized agent of Defendant but denied as to when Kraybill was serving as an agent since no time period is provided. 23. Denied as a conclusion of law. 24. Denied as stated since Defendant is only bound by Kraybill when she acts in her capacity as an agent. 25. Denied as a conclusion of law. 26. Denied. Plaintiff has obtained possession and control over the goods, which goods are owned by Defendant. 27. Denied. Plaintiff was provided access to enter the Premises. 28. Denied as a conclusion of law. Plaintiff does not own any personal property in possession of Defendant. 29. Denied as a conclusion of law. By way of further response, Plaintiff does not own the personal property. 30. Denied. The value of the goods are in excess of $50,000.00. 31. Admitted. 32. Admitted. 33. Denied. Defendant's position is valued and based off of a valid Contract. 34. Denied. Plaintiff does not own property in possession of Defendant. 35. Denied. A separate action was filed, but Kraybill is not a party. WHEREFORE, Defendant demands that the expired goods as listed on Exhibit "B" of the Complaint, and any other goods later claimed by Plaintiff to be his, should be deemed the property of Defendant and returned to Defendant, or an amount be awarded to Defendant equal to that of the value of the goods, or in the alternative, that Defendant is awarded storage fees for the expired goods. In both cases, Defendant requests damages in excess of the arbitration limits related to loss of revenue, postponing the going out of business sale, and interference, and costs of suit, interest, and any other relief this Court deems just. NEW MATTER 36. Paragraphs 1-35 are incorporated herein by reference as if fully set forth below. 37. On or about the date of the Contract, the Plaintiff entered into the Contract with Defendant. 38. The Contract states, among other things, that Plaintiff has "read the above statements and agree [s] to accept the conditions stated therein as applicable to all articles [Plaintiff] leave [s] on consignment for sale by [Defendant]." 39. The Contract, among other things, provides for a commission being paid to Defendant. 40. The Contract also provides for storage fees and that goods would become the property of the Defendant if they were not removed by Plaintiff within the specific time frame as outlined within the Contract being potentially four (4) months. Such goods, if not removed, were treated as "expired goods" and the property of Defendant, or would be subject to storage fees of $10 per day. 41. At all relevant times, Plaintiff was subject to the terms of the Contract. 42. Under the Contract, Defendant would retain a percentage from the sale of unexpired goods. In certain cases with Plaintiff, Defendant would dispose of the expired goods, or sell the expired goods and retain all of the proceeds to apply towards costs associated with abandoned goods, including, but not limited to, trash removal, storage fees, etc. 43. Plaintiff had left certain goods at Defendant's place of business in excess of two and three years. 44. Plaintiff cannot claim that such goods are still owned by Plaintiff if such goods are expired and not reclaimed by Plaintiff within the time frame as set forth within the Contract. 45. Such expired goods would either become the property of Defendant or be subject to a storage fee. 46. If Plaintiff claims that such expired goods were being stored by Defendant, then Plaintiff owes Defendant storage fees in excess of the arbitration limits. 47. If Plaintiff claims no storage fees are owed, then the expired goods are solely owned by Defendant and Plaintiff must return the same to Defendant. 48. Defendant has complied with all terms under the Contract. 49. Plaintiff has taken advantage of the relationship between the parties and would often drop off damaged goods and request that Defendant's employees fix the same without a charge to him. 50. Plaintiff was told on numerous occasions to pick up his expired goods, but failed to do so. Plaintiff continued to drop off new goods to be consigned without the permission or knowledge of the owner of Defendant. 51. At all relevant times, Plaintiff consented and agreed to a reduction in the original price of the goods consigned. 52. At all relevant times, Plaintiff consented and agreed to paying storage fees. 53. In the past and at a prior location, Plaintiff rented space from Defendant in lieu of storage fees. At Defendant's new location on Hanover Street, Plaintiff and Defendant agreed to terms that would provide for storage fees and, therefore, renting space was not necessary. See Exhibit "A." 54. Plaintiff had entered into prior written agreements with Defendant to lease space and sell goods for a commission. See Exhibit "A." 55. At no time while the prior written agreements were in place did Plaintiff make a claim that those agreements were invalid, unenforceable or changed due to course of dealings. 56. At no relevant time were Plaintiff and Defendant business partners. Plaintiff was a customer of Defendant. 57. Plaintiff used Defendant's staffto perform services for Plaintiff without authorization and without paying for such services by having them do such things as unpack large containers of goods, repair damaged goods, and pick up goods from other locations. Plaintiff also maintained a sexual relationship with a staff member of Defendant which negatively affected Defendant's business. Throughout the business relationship of Plaintiff and Defendant, Plaintiff would take advantage of Defendant to the detriment of Defendant and its business. 58. Beginning in 2008, Defendant advised Plaintiff that he was not to drop off any other goods unless approved by Defendant, but Plaintiff refused to listen. Plaintiff would continue to drop off goods thereafter and while Defendant's owner was offsite. Defendant only wanted to purchase certain goods from Plaintiff rather than consign his goods. 59. Defendant notified Plaintiff that money was due based upon storage fees and Plaintiff had failed and continues to refuse to pay said fees. 60. Plaintiff has attached documents to its Complaint that are perceived as settlement negotiations and, therefore, may not be used as evidence. 61. Plaintiff is prohibited by the parol evidence rule and other laws from arguing that an oral agreement was in place as the four corners of the Contract control all terms and agreements between the parties. 62. Plaintiff's claims are barred by the statute of limitations. 63. Since Defendant is no longer in the consignment business as its final sale took place in November 2010, Defendant requests that this Court award payment from the bond posted by Plaintiff for the value of the goods in dispute. WHEREFORE, Defendant demands that the expired goods as listed on Exhibit "B" of the Complaint, and any other goods later claimed by Plaintiff to be his, should be deemed the property of Defendant and returned to Defendant, or an amount be awarded to Defendant equal to that of the value of the goods, or in the alternative, that Defendant is awarded storage fees for the expired goods and any other relief this Court deems just. MARTSON LAW OFFICES Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: /- /p - /( Exhibit "A" The ConsA2 ment Galt wy operates under a 60%-40% margin. This simply means the The ConsWr ww GNtsry shah retain 40% of the seining price of the item, and the nomalr g 60% shall go to the consignor. A# !darns shall be sutrj od to a ttrirty day rem p 4ty. Each d pwW days, the item sta0 be marked down 15% from fhe ai #W tagged prroe• This wits continue for a period of two morMs, unit/ the price goes down 30% The stifling pdke and the redEjct" are taken from ft markdown price. For Instarm, if an item is tWW at $100 00, the flrst markdown shall be 1596, marking the Item down to $ 85.00. The second markdown W/1 be IS %, taken off of the $ 85.00 price, radmOg the prte to $ 72.25. 'Thera are no frier Markdown after ti* reduction. The data/ duration of the conbactIs poferrMWtour runt trs. The i9F9t month at no reducibn, tide second 30 days st 15% of and the bird My days at an addttl wW 15% off, Me j the item must be picked up wltlrat 10 days after that date Whatever Is not std shad be raclalmed by the dent within ten days of the last day of the COMIgrvrwit c Matt Whebw is notpkked up w the don days dW ImmedAedy become the property of The Consignment Gallery, to di a of as seen fit. Consigrbd Items are provided to The Conw%wY N calory for a maximum of three months During these tf'w a mottt?s, The Coital G &Mwy has an exclWve right to se# the aforementioned hams. All pd dng? and sale negiodtatiorn of tits aforemendonsd Items are to be handled exdusive?ly by The Consignment Gailw y. The Consot wnt gallery has the right to terminate said owbact at any time, and consignor must r+efrelve items within 10 days of temtinatlon, or a abiage fee of $ is oo per day per !tern is applied. ConslIgnors agree to pay the above mentioned percentages to The Consigners Gtallay upon sale of the consigned items. AN didplay and presentation is to be the responsibility of The Corso ment Q&qw y. 7 r is no consignor intervention with regards to how the item(s) are displayed and presented. M*wtftstandng anything to ft contrary contaked In M oonsigitmeig consignee and caonsigrror her sby release each other fft wn any and ati lbbey or responsibl?ity (do the other or anyone claiming through or under Own by way of suGragw#bn or otherwYe) t r any casually or other toss or claim is or reasonab y could have been covered by insurance by the party to this caonsigrtment su adng the loss or claim. AU nrsaorwhis' can win be taken of articles aons1VW to The Consignnwnt Gialfery, but they am left st the consignor's own rfsk. RC Payment of the agreed L#= percentage for any and all sold Item(s) shah be mailed 1 month of the sale. It is the responsibility of the consignor to pkk c p ail articles ld wry I 10 days after ft eagoiratfon dads I have read the above staftmenft -and to cwdtions stated Merin as *ptt* to a# 1 left on n sere by The Consignment Gallery. , Dais of Condgct 1'70:s:-- This agreement of lease executed this _day of October, 2003, between William Aspinall, as sub lessee and Patricia Marbain as sub lessor. Terms and R n+• Sub lessor for and in consideration of the rent, covenants and agreements hereinafter more fully mentioned and reserved, does by these presents lease to the sub lessee a portion of real estate at 860 State Street, containing approximately 3600 square feeet, for a month to month term, at the total rental cost of $1175.00 per month, payable in monthly installments on the first day of each month. cupanc o the premesis shall be as of 003. However, sublessee may begin to occupy the premesis prior to said date by signing this lease agreement, remitting the pro rated first months rent to sub lessor.It is understood that sub lessee shall use the premises for warehouse and storage. Sub lessee shall be responsible, at Sub Lessee's expense , for all utilities which pertain to said space, a well as insurance for sub lessee's inventory in said space. Sub Lessee shall conduct its business in compliance with all Local, State and Federal rules. Terminatigo- This lease shall continue forth under the same terms and conditions, until terminated by either party, giving the other I- -/ . . a party (60) sixty days notice. Furthermore, failure by Sub Lessee to pay, when due , any installment of rent or additional rent, or utilities or any other sum payable to sub lessor shall result in lease termination by Sub Lessor. Insurance Sub Lessee shall be responsible for insuring it's contents stored in said premises. Sub Lessee agrees to indemnify and save harmless the Sub Lessor from any casuality claim or loss arising by reason of Sub Lessee's use or misuse of the premises or by reason of an accident or damage to any person or property happening on the Premises. Asaignment Sub lessee will not assign this lease, nor underlet the Premesis or any part thereof, without written consent from the Sub Lessor. Witness: Witness: Sub Lessee: William Aspi all ratricia Marvain U0 64 W? Med/j, Our policies at The Consignment Gallery are as follows: The Consignment Gallery operates under 1 pmwl 5s ' n. This simply means the The Consignment Gallery shall retaiw26% of the selling price of the item, and the remaining Mo shall go to the consignor. All items shall be subject to a thirty day reduction policy. Each consecutive thirty days, the item shall be marked down 10% from the original tagged price. This will continue for a period oftwe n9onths. Whatever is not sold shall be reclaimed by the client, or-awy @toy at Me nt will provide the - a o o srx mo (s), Consigned items are provided to The Consignment Gallery for a maximum oflow months, During these two months, The Consignment Gallery has an exclusive right to sell the aforementioned items. All pricing and sale negotiations of the aforementioned items are to be handled exclusively by The Consignment Gallery. Consignors agree to pay the above mentioned percentages to The Consignment Gallery upon sale of the consigned items. If consigned items are priced with a private negotiation settlement, the overage amount goes solely to The Consignment Gallery. All display and presentation is to be the responsibility of The Consignment Gallery. There is no consignor intervention with regards to how the item(s) are displayed and presented to the general public. Notwithstanding anything to the contrary contained in this consignment, consignee and consignor hereby release each other from any and all liability or responsibility (to the other or anyone claiming through or under them by way of subrogation or otherwise) for any casualty or other loss or claim is or reasonably could have been covered by insurance by the party to this consignment suffering the loss or claim. All reasonable care will be taken of articles consigned to The Consignment Gallery, but they are left at the consigfnoes own risk. Payment of the agreed upon percentage for any and all sold item(s) shall be mailed on the thirtieth day of each month. It is the responsibility of the consignor to pick up all articles not sold before the expiration date. I have read the above statements and agree to accept the conditions stated therin as applicable to all articles I leave on consignment for sale by The Consignment Gallery. INN Patricia Lynn ar ai Consignor 4d Ore- OUR YEARLY COME TO JESUS MEETING Oke Let's start this off by saying how APPRECIATIVE we are of you, and how much we LIKE you, and how COOL you are, and how GOOD you are at scoring such smokin' loot. This is number one on the list. You are awesome, and we appreciate you TREMENDOUSLY. It is just that once again,We just have to attempt to rope in the "gone wild" steer, and try to get him to understand, once again, the way we want to run the corral. 1) Most Hateful Item First .I am going to have to ask you that all items be removed after 4 months LIKE WE DISCUSSED AT THE BEGINNING OF TIME. Also, they cannot sneakily be taken off the floor and stored in our warehouse for god knows how Iong.They must be removed from these here premises. I know you don't want to hear this, but I really think you need a warehouse of your own, close by, just for consignment stuff. Then if we are at full capacity, and need to wait on receiving some of your really good stuff, then the really good stuff can go to your warehouse, and come back in a couple of days, and everyone is really happy. Yay. 2) Please, Please, Please. Your loot can't be stored in my warehouse, unless the loot is going on the floor within a couple of days. Long term storage for your loot cannot possibly be my warehousing responsibility. I need my space too badly. (Thus, your-own-small- warehouse-close-by idea gets another point in the positive column of the debate ) 3) Now seriously, Drop offs have got to be placed inside the facility. ( and not right in side the door in front of the counter, even if we are all really tired) Please Please Please do not leave loads of loot for us to deal with in the parking lot. As you are well aware, I am way too short staffed, and quite frankly, this is not the employees responsibility or job description. You don't know this, but sometimes we are running in fifth gear all day long with customers / consignors, etc, and get all locked up and ready to go home at the end of the night, and we walk out the back door only to be confronted with a parking lot loaded down with Bill Stuff. This is not a pleasant thing for us at the end of a grueling day.Then, we curse and carry on and get frustrated. Furthermore, employees help because they are so 1. . extremely good natured and willing to help, but I am not comfortable with this, as the employer who pays all of the payroll taxes, insurance, work comp and uc benefits. One of those nasty claims against me, and we are ALL out of business. fast. (Remember Sharon? Ya think ya know somebody, then Lies Lies Lies. Throws ya for a loop. ) I have to watch my hide from here on out. You have got to be able to understand that, and realize that it is reasonable. 4) If items are getting too far marked down, the responsibility to remove them from the store has got to be yours. You have to keep a closer tab of your costs, the marked down price, etc. If the item is on the floor, we are going to sell it under our rules that everyone else abides by, and that our customers are aware of( and love ) 10% off each month, then if it is out of contract, CLEARANCEI. Clearance sales WILL NOT BE PAID TO CONSIGNOR ANYMORE (Visualize a picture of Uncle Sam Pointing at You, yelling "This Means Youl" ). CLEARANCE SALES WILL GO TO THE HOUSE, AS IS FOR EVERYONE ELSE. 5) We cannot take reconsignments for items that did not sell first time around for at least a year after they have been picked up. 6) We the right to refuse any items we don't want to be in the store. If there is a question about an item, please ask us before it comes, before we are forced to say no. 7) Our employees cannot be pulled away from customers, or what ever they were doing before you showed up. They are also cannot be your muscle help anymore. If you need help lifting and carrying your items on and off your truck, you are going to have to be responsible to bring your own muscle help, that you pay for, and cover under workers comp yourself from now on. We are too short staffed, and there really are way too many risks for me with regards to workers comp, etc. when the staff is not hired for lifting and moving. We have been really lucky, but I am not comfortable .1 t with this as it is now, and haven't been for a long time. We had this discussion when Mary Pat was doing too much lifting and carrying, and was upset by it, but somehow this never got resolved. If it is slow, and if someone is willing to help ONCE IN A WHILE, that is okay by me, but constantly is too much. Especially if we have customers. It cannot benefit either of us in any way if employees are not paying attention to customers, That is just a really bad move for all involved. 8) 1 think that items from Costea's are a risky move to have here. We would rather not have items from Costea's Auction here on our floor. Too much flack from customers, etc. 9) 1 think that this relationship is beneficial on both ends, but if 1 am going to offer you a reduced consignment rate, there can't be a bunch more work associated with it than with regular consignors. That is just a bad business decision on my part. 10) It might be a good idea if we have 2 or 3 SPECIFIED times that you drop off with us during the week. Constant Random drops are difficult for us because all staff feels like they are expected to drop whatever they are doing and attend to the drop off. If we have specified times during the week when we know you are coming, then we can all be better prepared 11) Every year, we are growing, and selling more, and getting better at what we do. This has turned into big business now, and as much as we would like to stay the same, and keep status quo, we are forced to make changes. As you have noticed though, change has been good for all of us. Over 8 years, I am certain thst your tax return as well as mine has grown considerably, and I plan to keep on getting better, selling more and making more and more goddamn money. We have a good thing going here, I just need to tweak it a little again. 12) 1 know you are tired, and I am tired too, but this is a good thing. I have been damn successful, and you have been a big part of that, and I appreciate that. I just need you to appreciate us, and respect what our r thoughts and opinions are. I expect you to respect how see choose that Ito r really business as well. I think you do, and therefore you will not asking too much of you with regards to these necessary changes. Thanks for making a tiny bit more effort. Trust me, all involved will be happier and this will result in a freshness and an improved working environment for everyone. 13) With regards to the "your own warehouse off site" idea, we could keep a list of what is there at the store, and possibly go over and pick stuff up as we need it too. There is a storage place called Storage Depot on 7th street in Lemoyne. Close by. Easy Access. Good for all. Peace. Harmony. Happiness. No War. 14) If you feel like killing me right now, that's OK. I can deal with it. Go hit a punching bag with my face on it or something. I promise,This too will pass. P.S. If you feel like it, You could buy some coffee and cokes once in a while too, you know.And maybe some mugs. and maybe some wine. (for our nerves and stuff) -. VERIFICATION The foregoing Amended Answer is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, hereby certify that a copy of the foregoing First Amended Answer was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Luther E. Milspaw, Jr., Esquire 130 State Street P.O. Box 946 Harrisburg, PA 17108-0946 MARTSON LAW OFFICES By: (r M Price Ten E ;7t High Street Carlisle, PA 17013 (717) 243-3341 Dated: f ////l };11TFIJ'?Ol?k1?'i COUNTY SYLVANI A Luther E. Milspaw, Jr., Esquire Attorney ID No. 19226 130 State Street, P.O. Box 946 Attorney for Plaintiff Harrisburg, PA 17108-0946 (717) 236-3141 FAX (717) 236-0791 Email: Luthermilspawaa milsnawlawfirm.com WILLIAM ASPINALL, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. Docket No. 2010-6553 THE CONSIGNMENT GALLERY, INC., : Defendant In Replevin PLAINTIFF'S REPLY TO DEFENDANT'S SECOND AMENDED ANSWER WITH NEW MATTER AND NOW, comes Plaintiff, WILLIAM ASPINALL, by and through his attorney, Luther E. Milspaw, Jr, Esquire, and replies to the New Matter contained in Defendant's Second Amended Answer to Complaint with New Matter. Because there are many contested factual averments set forth in Paragraphs 1-35 of the Answer which are incorporated in Paragraph 36 of the New Matter, but not repeated in the New Matter, Plaintiff responds to said averments with reference to the same paragraph numbers as follows: 1-4. No required. 5. Admitted in part/denied in part. The first page of Defendant Exhibit "A" is the same document attached to Plaintiff's Complaint as Exhibit "A". It is denied that it is the agreement in force between the parties for the reasons set forth in Plaintiff's Complaint. The second and third pages of Defendant's Exhibit "A" are a sublease for space leased to Plaintiff from Defendant for a portion of her leased premises in Lemoyne, Pennsylvania. Said sublease agreement governed the relationship of the parties as to the subleased area for the period defined by the agreement, but is not relevant to the present dispute. The fourth page of Defendant's Exhibit "A" is an undated agreement with several handwritten additions and inter-delineations that were not part of the original document it was signed. It is denied that said document constitutes any agreement between the parties for the period in dispute. Pages 5 through 8 of Defendant's Exhibit "A", is an undated letter titled "Our Yearly Come to Jesus Meeting" which was never presented to Plaintiff by Defendant or by anyone on Defendant's behalf at any time and represents a document not heretofore seen by Plaintiff. All averments set forth in the letter are denied. Further, Plaintiff is not aware of any other contract allegedly dated in 2001, and the terms and conditions of that alleged contract cannot be admitted or denied until said document is produced. 6. Denied for the reasons set forth in Paragraph 6 of the Complaint. In further denial, it is denied that Defendant ever indicated to Plaintiff that the negotiable checks which were provided to him during that period were provided only as an accounting. Rather, the checks were provided as payment for Plaintiff s portion of the sales price of consigned goods that were sold by Defendant. 7. Denied for the reasons set forth in the Complaint. Denied for the reasons set forth in the Complaint. 9. No response required. 2 10. Denied for the reasons set forth in the Complaint. In further denial, on any occasion which Plaintiff was asked by Defendant to remove goods, the request was discussed with representatives of Defendant and goods were removed to the satisfaction of Defendant. 11-12. No response required. 13. Denied for the reasons set forth in the Complaint. 14-15. Denied as a conclusion of law. 16. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment. 17. No response required. 18. Denied for the reasons set forth in the Complaint. In further answer, Defendant has never provided an accounting of any sort to Plaintiff that indicates whether Defendant's position is that the goods consigned by Plaintiff to Defendant (a) were purchased by Defendant; or (b) are the property of Defendant because the consignment period had expired and the goods were abandoned by Plaintiff; or (c) are still the property of Plaintiff for which a storage fee may be applied by Defendant. 19. Denied as stated. Defendant's counsel did notify Plaintiff's counsel that a motion for an injunction was contemplated by Plaintiff, but no such motion was filed and the decision to indefinitely postpone the sale was that of Defendant alone. 20-25. No response required. 3 26. Denied. It is denied that any of the goods in possession of Plaintiff are owned by Defendant. 27. No response required. 28-29. Denied for reasons set forth in the Complaint. 30-32. No response required. 33-34. Denied as a conclusion of law. 35. Denied. A separate action was filed naming Kraybill as a party, but the claims against Kraybill were discontinued by Plaintiff without prejudice. NEW MATTER 36. Plaintiff's responses to Paragraphs 1-35 are incorporated herein by reference as if fully set forth herein. 37. Denied as a conclusion of law. In further response, this averment is denied for the reasons set forth in the Complaint. 38. Denied as a conclusion of law. In further response, the document speaks for itself. 39. Denied as a conclusion of law. In further response, the document speaks for itself. 40. Denied as a conclusion of law. In further response, the document speaks for itself. Additionally, at no time did Defendant advise Plaintiff prior to May 27, 2010 that the relationship between the parties was defined by the consignment agreement dated January 19, 2005; nor that the goods that Plaintiff had placed on consignment with Defendant would be disposed of expired goods or, in the 4 alternative, sold and applied toward the costs associated with said goods, including removal and storage fees. 41. Denied as a conclusion of law. 42. Denied as a conclusion of law. In further denial, after reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to what, if any, disposition Defendant made of Plaintiff's goods for which no accounting has been made. 43. Denied as stated. All goods left at Defendant's place of business for any period, including some goods in excess of several months, were left only with Defendant's consent. 44. Denied as a conclusion of law. 45. Denied as a conclusion of law. In further response, Defendant has not provided any accounting to Plaintiff identifying which goods Defendant asserts have become its property or which goods are subject to storage fees. 46. Denied as being nonsensical in addition to being denied as a conclusion of law. At no time has Plaintiff claimed that the goods on consignment with Defendant have expired or that they were being stored by Defendant at Plaintiff s expense or that Plaintiff owes Defendant any money for storage fees. 47. Denied as being nonsensical in addition to being denied as a conclusion of law. At no time has Plaintiff claimed that the goods on consignment with Defendant are owned solely by Defendant. 48. Denied as a conclusion of law. 5 49. Denied. At no time did Plaintiff "take advantage of the relationship between the parties" nor would he drop off damaged goods without full agreement with Defendant's employees on who would fix any damaged goods and/or at what cost. 50. Denied. At no time did Plaintiff fail to pick up goods when reasonably requested to do so; nor did he ever drop off new goods without the knowledge and consent of Defendant. 51. Denied as stated. There were times in which Plaintiff, upon request of Defendant, consented and agreed to a reduction in the original price of goods consigned, but only upon Plaintiff's consent obtained in advance. 52. Denied for the reasons set forth in the Complaint. Plaintiff never consented or agreed to pay storage fees for his consigned goods. 53. Admitted in part/denied in part. It is admitted that the document set forth as pages 2 and 3 of Exhibit "A" constituted a sublease agreement which Plaintiff rented space from Defendant at Defendant's location in Lemoyne. The balance of Paragraph 53 is denied for the reasons set forth above. 54. Denied for the reasons set forth above. 55. Denied for the reasons set forth in Plaintiff's Complaint and as set forth above. 56. Admitted in part/denied in part. It is admitted that Plaintiff and Defendant were not business partners. It is also admitted that at times, Plaintiff was a customer of Defendant. However, the principle relationship between the parties was Plaintiff as consignor and Defendant as consignee. 6 57. Denied. At no time did Defendant's staff perform services for Plaintiff without the express consent of Defendant and Defendant's principal. In further denial, at no time did Plaintiff take advantage of Defendant to the detriment of Defendant and its business. To the contrary, as set forth with particularity in the Complaint, Plaintiff, at Defendant's request, held in excess of $200,000 worth of checks solely for the purpose of helping Defendant get through some difficult economic times in business. 58. Denied. At no time were goods delivered by Plaintiff to Defendant without the approval by Defendant's employees, including Defendant's owner. At all times, Defendant accepted such goods and continued to make requests of Plaintiff to obtain and deliver additional goods for consignment. 59. Denied as stated. Defendant did not assert or demand storage fees from Plaintiff until the end of May 2010, after Plaintiff demanded that Defendant make good on the checks it had issued to Plaintiff. It is admitted that Plaintiff has failed and continues to refuse to pay such fees, all for the reasons as set forth in the Complaint. 60. Denied as a conclusion of law. 61. Denied as a conclusion of law. 62. Denied as a conclusion of law. 63. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment. 7 WHEREFORE, Plaintiff demands that the New Matter of Defendant be stricken and Defendant's claims dismissed, and judgment entered in favor of Plaintiff and against Defendant consistent with demand for relief made by Plaintiff in his Complaint, and such other relief as this Court deems just. Attorney ID No 130 State Street Harrisburg, PA 17108-0946 (717) 236-3141 Attorney for Plaintiff Dated: February 22, 2011 P.O. Box 946 VERIFICATION I, WILLIAM ASPINALL, hereby verify that the statements made in the foregoing 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.A. §4904 relating to unsworn falsification to authorities. William Aspinall Dated: February 21, 2011 WILLIAM ASPINALL, Plaintiff VS. THE CONSIGNMENT GALLERY, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 2010-6553 In Replevin CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the above Plaintiff's Reply to New Matter upon all counsel/parties of record by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, on the 22°d day of February 2011, addressed as follows: Christopher E. Rice, Esquire Martson Deardorff Williams Otto Gilroy & Faller Ten East High Street Carlisle, PA 17013 DA. spectfully sub fitted, LUTHER E. MILSPA r Attorney ID No. 19226 130 State Street P.O. Box 946 Harrisburg, PA 17108-0946 (717) 236-3141 Attorney for Plaintiff Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY unrUfrt?rj 4ttirt?t' CA J 25 P?j 2_: E i ?J11 BERLA ju 1.1. €` PEHNsyf yiA?4if," William Aspinall Case Number vs. The Consignment Gallery, Inc. 2010-6553 SHERIFF'S RETURN OF SERVICE 11/05/2010 12:20 PN9 - Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that on November 5, 2010 at 1220 hours, he served a true copy of the within writ of seizure, in the above entitled action, upon the within named defendant, to wit: The Consignment Gallery, Inc., by making known unto Patricia Kraybill, owner and Adult in Charge, at 164 N Hanover Street, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. 01/24/2012 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states this writ of seizure is returned as ABANDONED. No action on writ in over 6 months. SHERIFF COST: $37.02 SO ANSWERS, January 24, 2012 RON R ANDERSON, SHERIFF 6 ? /1,9, -A < << -'; 7 r WILLIAM ASPINALL, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. Docket No. 2010-6553 THE CONSIGNMENT GALLERY, INC., Defendant In Replevin PRAECIPE TO DISCONTINUE CIVIL ACTION WITH PREJUDICE TO THE PROTHONOTARY: Please discontinue the above captioned civil action, with prejudice. z m- --V a nUTHER . itted, >XCD SPAW, Jr. 19226 P.O. Box 946 Harrisburg, PA 17108-0946 (717) 236-3141 Attorney for Plaintiff Dated: March 14, 2013 1 WILLIAM ASPINALL, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. Docket No. 2010-6553 THE CONSIGNMENT GALLERY, INC., : Defendant In Replevin CERTIFICATE OF SERVICE 1 hereby certify that I served a true and correct copy of the above Praecipe to Discontinue with Prejudice upon all counsel/parties of record by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, on the 14`"day of March 2013, addressed as follows: Christopher E. Rice, Esquire Martson Deardorff Williams Otto Gilroy& Faller Ten East High Street Carlisle, PA 17013 J ly submitted, SW�, Paralegal e of Luther E. Milspaw, Jr. treet P.O. Box 946 Harrisburg, PA 17108-0946 (717) 236-3141