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Home My WebLink About04-3451 ORANGEBURGPECAN COMPANY, INC., , IN THE COURT OF COMMON PLEA OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff VS. d'1- 5'15/ Q;:' I : NO. GIANT FOOD STORES, INe., Defendant IN ASSUMPSIT NOTICE You have been sued in court, If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you, You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania (717) 249-3166 Anthony L. DeLuca, Esquire 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 ORANGEBURGPECAN COMPANY, INe., : IN THE COURT OF COMMON PLEA OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff VS. : NO. GIANT FOOD STORES, INC., Defendant IN ASSUMPSIT COMPLAINT AND NOW comes the Plaintiff, Orangeburg Pecan Company, Inc., by its attorney, Anthony L. DeLuca, Esquire and files this Complaint based upon the following: 1. Plaintiff is Orangeburg Pecan Company, Inc., a business organized and existing under the laws ofthe State of South Carolina, with its principal place of business at 761 Russell Street, Orangeburg, Orangeburg County, South Carolina. 2. The Defendant is Giant Food Stores, Inc" a business organized and existing under the laws of the State of Delaware, with its principal place of business at 1149 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania. 3. On or about October 22, 2002, the Defendant requested that Plaintiff ship an order of pecans directly to the Defendant. 4. The Plaintiff, at the direct request of the Defendant, shipped 144 cartons of pecans at $69.90 each, totaling the sum of $ 10,065.60, to the Defendant on October 23,2002 under invoice number 15705, 5. The 144 cartons of pecans referred to hereinabove were received by the Defendant and Invoice number 15705, in the amount of$1O,065.60 was paid to Plaintiff by the Defendant on December 2, 2002. 6. On or about October 29, 2002, the Defendant requested that Plaintiff ship a second order of pecans directly to the Defendant. 7. The Plaintiff, at the direct request of the Defendant, shipped the second order of 144 cartons of pecans at $69.90 each, totaling the sum of $10,065.60, to the Defendant on November 1,2002 under invoice number 15719. A copy of said invoice is attached hereto, marked as Exhibit "A" and incorporated herein by reference. 8. The second order of 144 cartons of pecans under Invoice number 15719 totaling the sum of$1O,065.60 referred to hereinabove was received by the Defendant. 9, Invoice number 15719 states that a charge of I % would be added to all unpaid invoices on the last day of each month. 10. Although demand has been made for payment, Defendant has failed and willfully refuses to pay the $10,065.60 plus charges owed to Plaintiff pursuant to invoice number 15719. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter Judgment in favor of Plaintiff and against the Defendant in the amount of$10,065.60 plus charges and costs. Respectfully Submitted, C7~~~A Anthony L. De~ Esquire 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 (717) 258-6844 Attorney for Plaintiff . . Yl;Rid(;:\}!())i f,-~dvYs.ldeL states that he is the Presldent ofORA..~GEBURG PECAN COMPM'Y. L"C., a South Carolina Corporation, and thai 'the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, infomlatIOn and beliet; and that this statement is made subicct to the Tlenalties of 1 B PA C.S,A. 4904 relating to Ul1swom falsification to authorities, L);-ited: i2-/o:E'i .' ~~- p.o,~<>x~, 'SI 1'- I I A -"'......... "'. I ,.. T r.l.phone; ~03-$)4.4zn GIANT DISl'RlBUT'idN ~ '"" "'- . '" ..."......,...ro '<i2. lII!lllStRLu.Jjttve i ; .1 TERMS: 10 DAVs NET '~WIll. BE ADDED TO All <'..wISlE' FA. 171)13" UNPAID INVOices O/.f11lEUaT DAY OF IiACH MONTH " " I I, IF UNPAID INVOICE 18 D""TEO I'RIOR Td"PRE(:EnlNC " " 10TH DAY OF MONTH. . , i i I Sold To: GIANT CARlI~.E P.O. BOX 8100 CARUSIR, 1'A. i 17013 , , I I DATE I ORDER N~-l VIA I :.JH-O,-~ SQ53Q7iOID D(tQNI~ 1,10.'" S/Zt 0/1 lilt/) 0' <lt4~' C01{: co... c.]H- ro..NDS ~!LOfDS _TIo.lNI:RI rA.IN_--...-- c ; I I !' , I i! I I I ( SHiP . J BIlOK&R PREPAID _.. ARt lOOG GRADE AND Vi\RJETY , Tl!IlI\IIa , N~r 10 DAyS 1 . . :I& . TOTAL . clSB~; : 'I' . I $19./ $io,Q6s.: 6t; i j i . \ ' ; I ',..... i I Vb I ! I i , , I l I I / ; i ! I I ., 144 3Q# DX 4:)20 ~IlIDIVH PECJlt, .pmCBS ," , ; I i I i I , i j PLEASe eXAMINE AT ONee:. NO ClAIMS WlU, 6E Al..LO\Veo UNLesJ, Fi AFl'Vl ARRIVAL. 0lIA RSSPONsI8.L1TY CEAsES WHEN GOOO8 ARe TIOM COMPANY, ANy CWIoIS FoR """'AGES OR SHORTAGE MUST AGREEMENTS ARE CONl'INQENT UPON STRikes, DElAys OF CMA ee'rONo SEI.leRS COIoITRClL' . Y,ltHlN THREE (3) a V~R~ TO T e~OE8Y8U R.. '--'I ~, NOTICE. DANGER PECAN'PRO- DUCTS ARE HlGHIY PERlSHAslj! ANC SHO<.\.!) BE KEPT IN A COO~ DAy Pl.Ac<r, IF ALLOWED to STAND WHERE THey ABSORB MOISTl/fle IT Will CAUSe Th::M TO MOlo ; i , ;, I I I I I . I EXHIBIT "AU f I I I I I f I . I ~ '*-, --- ~ u .,.l ~ r> 'T"" ~. ~ U'\ V"\ \1) lJ -.~ ~ ~ Q s:- " c, ,. e ~,.,' 'c' , . n ':;\" .'- .--\ ( _~ -"\", """-1 " ~ r:~l ':..J ,;. ;":', ,- SHERIFF'S RETURN - REGULAR CASE NO: 2004-03451 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ORANGEBURG PECAN COMPANY INC VS GIANT FOOD STORES INC SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon GIANT FOOD STORES INC the DEFENDANT , at 1510:00 HOURS, on the 19th day of July , 2004 at 1149 HARRISBURG PIKE CARLISLE, PA 17013 by handing to JOHN MILLER, STORE LICENSING ASSOCIATE, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 3.70 .00 10.00 .00 31.70 -1~~~ R. Thomas Kline 07/20/2004 ANTHONY DELUCA Sworn and Subscribed to before By: me this '-18' day of ~~'t A.D. (1 Q. ~.~[,~, ~. ~onotary , ORANGEBURGPECAN COMPANY, INC., : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff Civil Action No. 04-3451 v. GIANT FOOD STORES, INC., Defendant NOTICE TO PLEAD TO: Orangeburg Pecan Company, Inc. Plaintiff, and Anthony DeLuca, its attorney: 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. McNEES WALLACE & NURICK LLC By 7/'.j./~. ~ ~rly M. Colonna I.D. No, 80362 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneysfor Defendant Giant Food Stores, LLC Dated: September 2, 2004 ORANGEBURGPECAN COMPANY, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff Civil Action No. 04-3451 v. GIANT FOOD STORES, INC., Defendant ANSWER WITH NEW MATTER AND COUNTERCLAIM Giant Food Stores, LLC ("Giant"), incorrectly identified in the Complaint as Giant Food Stores, Inc., for its answer, new matter, and counterclaim, states as follows: 1. Admitted upon information and belief. 2. Admitted in part and denied in part. Giant dtmies that its correct corporate name is Giant Food Stores, Inc. Giant admits the remaining averments of the paragraph. By way of further answer, Giant's correct corporate name is Giant Food Stores, LLC. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Denied as stated. The invoice is a document that speaks for itself. 10. Denied. Giant denies that it owes any amotmt to Plaintiff for the reasons set forth in the new matter and counterclaim below. WHEREFORE, Giant demands that judgment be enteIed in its favor and that Giant be awarded its costs of suit. NEW MATTER 11. In early October 2002, Giant received a shipment of Orangeburg Pecan Company shelled pecans that were infested with weevils and/or weevil larvae. 12. The infested pecans were purchased by Giant directly or indirectly from Plaintiff and were supplied to various Giant stores. 13. Prior to the time that Giant became aware that the pecans were infested with weevils, the pecans were used as ingredients in baked goods that were prepared in the Giant stores' bakeries. The baked goods were intended to be sold to Giant customers. 14. On October 7, 2002, Giant learned that the p€:cans sold by Plaintiff were infested with weevils. 15. As a result, Giant was forced to discard all of the infested pecans and the baked goods that were prepared using the infested pecans. 16. The cost of the products that Giant discarded totaled more than $11,700. 17. As a result, Giant is entitled to a setoff in the: amount of $11,700 against any sum that is found to be owed to Plaintiff. WHEREFORE, Giant demands that judgment be entered in its favor on the Plaintiffs claim, and that Giant be awarded lost profits in an amount to be proven at trial, plus costs of suit. COUNTERCLAIM; (In Assumpsit) 18. Paragraphs one (1) through seventeen (17) above are incorporated herein by reference. 2 19. As described above, Plaintiff breached the warranties of merchantability and fitness by selling pecans that were infested with weevils. 20. As a result of Plaintiffs breaches, Giant suffered losses, including the costs of the pecans and baked goods and the lost profits that would have resulted from the sale of the baked goods. 21. Giant is entitled to recover from Plaintiff the profits that would have resulted from the baked goods that Giant was unable to sell because of the infested pecans and the cost of the products that had to be discarded because of the infested pecans. WHEREFORE, Giant demands that judgment be ent,ered in its favor and that it be awarded damages in an amount to be proven at trial, plus costs of suit. McNEES WALLACE & NURICK LLC By ifJ it. Q""... ~ ~:IYM. Colonna LD. No. 80362 100 Pine Street P.O. Box 1166 Harrisburg, P A 17108-1166 (717) 232-8000 Attorneys for Defendant Giant Food Stores, LLe Dated: September 2, 2004 3 TOPS EXECUTIVE ;717 950 1907 .. 2 laJoo 71 g_ 2-04; 2:52PM;LEAOAL DEPA~TMENT 09/02/04 THU 12:43 FAf 716 635 5102 ~_ 2_04:'ZlogPM.Gl~NT ;717 960 1932 .. 2/ VElITFICATlON I. ~~ A. J1I1.A-11f7A1 , hereby certify that I am authorized to execute tbis verification on behalf of Giant Food Stores, LLC, that have read the foregoing document, and that the infOI1:nation contained therein is true and conect to the best of my knowledge, information, and belief. This verification is made subject to the penalties on8 Pa. C.S. !I 4904 relating to unsworn falsification to authorities. G>ANfPO~RES' u.c Print 4" ."'PI'ittZN A. /I'!.AdTl.v Title ..s"" M~~I5I""(,,# 5(1'7 .2- Dated: }>.. - ' "-' 2004 nn In~ ,")nOII. 1.,."Z1l: CERTIFICATE OF SERVICE The undersigned hereby certifies that on this d.ate a true and correct copy of the foregoing was served by first class United States mail upon the following: Anthony DeLuca, Esq. 113 Front Street P.O. Box 358 Boiling Springs, P A 17007 ~u~ Kimberly M. Colonna Date: September 2, 2004 o C' ...., c::> = ~- (/\ r'':: -6 I w o 'n :r~ Pl-"':' f--~ "T:JfT1 :cliO ,-) l ~l~}j O<~'C) ;"';; rrl ~::::J ,> :TJ ........,: !'" ---... ~.? .r." ORANGEBURGPECAN COMPANY, INC., IN THE COURT OF COMMON PLEA OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff VS. : NO. 04-3451 GIANT FOOD STORES, INC., Defendant IN ASSUMPSIT JURY TRIAL DEMANDED REPLY TO NEW MATTER AND COUNTER CLAIM AND NOW, this.t~ day of October, 2004, comes the Plaintiff, Orangeburg Pecan Company, Inc. by its attorney, Anthony L. DeLuca, Esquire, and files this Reply to New Matter and Counter Claim as follows: 10. The averments set forth in Paragraphs 1 through 10 are incorporated herein by reference as though set forth in full. NEW MATTER 11. Denied. It is specifically denied that, in early October, 2002, Giant received a shipment of Orangeburg Pecan Company shelled pecans that were infested with weevils and/or weevil larvae from Orangeburg Pecan Company. To the contrary, Orangeburg Pecan Company, Inc. did not ship any pecans to Giant until October 23, 2002 and said shipment of shelled pecans, at the time of shipment on October 23, 2002, were not infested with weevils and/or weevil larvae and were fit for human consumption. By way of further Reply, the Plaintiff never shipped pecans to Defendant that were infested with weevils andlor weevil larvae. 12. Denied. It is specifically denied that the infested pecans were purchased by Giant directly or indirectly from Plaintiff and were supplied to various Giant stores. To the contrary, the pecans shipped by Orangeburg Pecan Company to Giant did not occur in early October, 2002 as alleged by Giant. By way of further Reply" Orangeburg Pecan Company first shipped edible pecans to Defendant on October 23, 2002 and again on November 1,2002 that were not infested with weevils andlo! weevil larvae. Any alleged infested pecans used by Giant in early October, 2002 and supplied to various Giant stores were not purchased from Plaintiff. 13. Denied. After reasonable investigation, Orangeburg Pecan Company, Inc. is without knowledge or information sufficient to form a belief as to the truth of this averment and, therefore, it is specifically denied and proof, thereof, is demanded at trial. 14. Denied. After reasonable investigation, Orangeburg Pecan Company, Inc, is without knowledge or information sufficient to form a belief as to the truth of this averment and, therefore, it is specifically denied and proof, thereof, is demanded at trial. 15. Denied. After reasonable investigation, Orangeburg Pecan Company, Inc. is without knowledge or information sufficient to form a belief as to the truth of this averment and, therefore, it is specifically denied and proof, thereof, is demanded at trial. 16. Denied. After reasonable investigation, Orangeburg Pecan Company, Inc. is without knowledge or information sufficient to form a belief as to the truth of this averment and, therefore, it is specifically denied and proof, thereof, is dem,mded at trial. 17. Denied. The averment set forth herein is a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, it is specifically denied that, as a result, Giant is entitled to a setoff in the amount of$II,700.00 against any sum that is found to be owed to Plaintiff. By way of further Reply, Orangeburg Pecan Company first shipped edible pecans to Defendant on October 23, 2002 and again on November 1, 2002 that were not infested with weevils and/or weevil larvae. Any alleged infested pecans used by Giant in early October, 2002 and supplied to various Giant stores were not purchased from Plaintiff, WHEREFORE Plaintiff respectfully requests that this Honorable Court enter Judgment in its favor on Plaintiffs claim and that Judgment be entered against Giant for lost profits in an amount to be proven at trial, plus costs of suit. COUNTERCLAIM (In Assumpsit) 18. The averments set forth in Paragraphs 1 through 17 are incorporated herein by reference as though set forth in full. 19. Denied. The averment set forth herein is a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, it is specifically denied that, as described above, Plaintiff breached the warranties of merchantability and fitness by selling pecans that were infested with weevils. By way of further Reply, Orangeburg Pecan Company first shipped edible pecans to Defendant on October 23, 2002 and again on November 1, 2002 that were not infested. with weevils and/or weevil larvae. Any alleged infested pecans used by Giant in early October, 2002 and supplied to various Giant stores were not purchased from Plaintiff Plaintiff did not sell Giant pecans, as described above, that were infested with weevils. 20. Denied. The averment set forth herein is a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, it is specifically denied that, as a result of Plaintiffs breaches, Giant suffered losses, including the costs of the pecans and baked goods and the lost profits that would have resulted from the sale of the baked goods. By way of further Reply, Orangeburg Pecan Company first shipped edible pecans to Defendant on October 23, 2002 and again on November 1, 2002 that were not infested with weevils and/or weevil larvae. Any alleged infested pecans used by Giant in early October, 2002 and supplied to various Giant stores were not purchased from Plaintiff. Plaintiff did not sell pecans to the Defendant, as described above, that were infested with weevils and/or weevil larvae and is not re:sponsible for any alleged losses, including the costs of the pecans, baked goods and lost profits. 21. Denied. The averment set forth herein is a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, it is specifically denied that Giant is entitled to recover from Plaintiff the profits that would have resulted from the baked goods that Giant was unable to sell because of the infested pecans and the cost of the products that had to be discarded because ofthe infested pecans. Plaintiff did not sell pecans to the Defendant, as described above, that w.ere infested with weevils and/or weevil larvae and is not responsible for any profits that would have resulted from the baked goods Giant allegedly was unable to sell and for the cost of the products that allegedly had to be discarded. WHEREFORE, Plaintiff respectfully requests that thi.s Honorable Court enter Judgment in favor of Plaintiff and against Defendant on Plaintiffs claim and in favor of Plaintiff and against Defendant on Defendant's claim as set forth under New Matter and Counterclaim. Respectfully Submitted, a~rN~ Anthony ~. ;e~ Esquire Attorney for Plaintiff LD. No. 18067 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 (717) 258-6844 VERIFICATION Freddy Felder states that he is the President of ORANGEBURG PECAN COMPANY, INC., a South Carolina Corporation, and that the facts set forth in the foregoing Reply to New Matter and Counterclaim are true and correct to the best of his knowledge, information and belief, and that this statement is made subject to the penalties of 18 P A C.S.A. 4904 relating to unsworn falsification to authorities. Dated: 10/)1/07 r , {W;. CERTIFICATE OF SERVICI~ The undersigned hereby certifies that on this date a true and correct copy of the foregoing was served by first class United States mail upon the following: Kimberly M. Colonna McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, Pennsylvania 17108-1166 LZ~ Anthony L. D Date: October 28, 2004 (") ~ 0 c;:;;;, S~ (':.:> ,-, ..... a :::1 \ "~ " ("') :::r:.,., , , , rn 1"-0 ~ ~T; -1 -(1 nl "., ~,.rJ9 ,.;::> ~? C) ~, - '.. -.,.....1'.1 -0 "'-,' . , ; -- ~,,~ (') -,- , ;:.;rn (",J I.....,~ --~ 2:: "1;". ."1 .1::-- :JJ .-< 0) ..< 08/17/2005 17'42 FAX 717 237 5300 MCNEES WALLACE I NURICK ~ 008/008 " ORANGEBlJRG PECAN COMPANY.INC.. IN THE COURT OF COMMON PLEAS OF ('U;vlBl~RLANI) COUNTY, PENNSYLVANIA Pia inti rr Civil Action No. 04,3451 v. OIAN'I' FOOD STORES, INC'.. De,f(;mdanl TO THE I'ROTHONOTARY OF CUMBERLAND COUNTY: Pursuanlto Pa, R, ('iv, p, 229(a), plcnsc Illark this maner discontinued and ended with prejudice, 8Y_~~~ ,4..",",~.# ~~lY L." "llCJ,l.~.sq. -r-'( 113 Front Sired 1',0, Box 358 Hoiling Springs. PA 17007 (717) 258.6844 ('ollllsel/or Orallgehwg PeclllI COIIII'"IlY, JIJl'. McNEES WALLACE &. NURICK LLC 13y Ib~'c~ Pa, 1. D. 80362 100 Pine Street Hnrrisburg, PA 17101 (717) 232.8000 COllllseljil/' Gilllll Fout! Swr"s, LLC o S, <,'.'-' Q!l';~~- <'~.. ~~ ~ (,;'~ -<,. ,- .!.< ~~~ ~.-. 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